CLOSED,TYPE−D
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:20−cv−00890−RC

WILLIAMS et al v. FEDERAL BUREAU OF PRISONS et al Assigned to: Judge Rudolph Contreras Case: 1:20−cv−00849−CKK Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 04/02/2020 Date Terminated: 04/29/2020 Jury Demand: None Nature of Suit: 555 Prisoner Petition: Prison Condition (Other) Jurisdiction: U.S. Government Defendant

THURMAN WILLIAMS individually and on behalf of all others similarly situated

represented by Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street, NW 2nd Floor Washington, DC 20005 (202) 601−4266 Fax: (202) 457−0805 Email: artspitzer@gmail.com ATTORNEY TO BE NOTICED

Clayton D. LaForge LATHAM & WATKINS LLP 555 11th Street N.W. Suite 1000 Washington, DC 20004 (202) 637−2200 Email: clayton.laforge@lw.com ATTORNEY TO BE NOTICED

Lyndsay Ayanna Niles WASHINGTON LAWYERS' COMMITTEE 700 14th Street NW Suite 400 Washington, DC 20005 (202) 319−1000 ext. 134 Email: lyndsay_niles@washlaw.org ATTORNEY TO BE NOTICED

Michael Krevans Perloff AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF THE DISTRICT OF 915 15th Street NW 2nd Floor Washington, DC 20005 202−601−4278 Email: mperloff@acludc.org ATTORNEY TO BE NOTICED

Scott Michelman AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street, NW 2nd Floor Washington, DC 20005 (202) 457−0800 Fax: (202) 457−0805 Email: smichelman@acludc.org ATTORNEY TO BE NOTICED

Plaintiff RONALD IAN BOATRIGHT individually and on behalf of all others similarly situated
V. Defendant FEDERAL BUREAU OF PRISONS
Defendant MICHAEL CARVAJAL in his official capacity as Director, Federal Bureau of Prisons Defendant DISTRICT OF COLUMBIA

Kevin H. Metz LATHAM & WATKINS LLP 555 11th Street, NW Suite 1000 Washington, DC 20004−1304 (202) 637−2200 Fax: (202)637−2201 Email: kevin.metz@lw.com ATTORNEY TO BE NOTICED
represented by Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
Clayton D. LaForge (See above for address) ATTORNEY TO BE NOTICED
Lyndsay Ayanna Niles (See above for address) ATTORNEY TO BE NOTICED
Michael Krevans Perloff (See above for address) ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) ATTORNEY TO BE NOTICED
Kevin H. Metz (See above for address) ATTORNEY TO BE NOTICED
represented by Johnny Hillary Walker , III U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252−2575 Fax: (202) 252−2599 Email: johnny.walker@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Johnny Hillary Walker , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Micah Ian Bluming OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA Public Interest Division, Equity Section

Defendant QUINCY BOOTH in his official capacity as Director, D.C. Department of Corrections
Defendant HOPE VILLAGE, INC.

441 4th Street NW Suite 630 South Washington, DC 20001 (202) 724−7272 Fax: (202) 730−1833 Email: micah.bluming@dc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew J. Saindon OFFICE OF ATTORNEY GENERAL/DC Public Interest Division/Civil Enforcement Section 441 4th Street, NW Suite 630 South Washington, DC 20001 (202) 724−6643 Fax: (202) 730−1470 Email: andy.saindon@dc.gov ATTORNEY TO BE NOTICED
Pamela A. Disney OUTTEN & GOLDEN, LLP 601 Massachusetts Avenue Suite 200W Washington, DC 20001 (202) 847−4417 Email: pamela.disney@dc.gov ATTORNEY TO BE NOTICED
represented by Micah Ian Bluming (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew J. Saindon (See above for address) ATTORNEY TO BE NOTICED
Pamela A. Disney (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher R. Yukins ARNOLD & PORTER LLP 601 Massachusetts Avenue, NW Washington, DC 20001 (202) 942−5789 Email: christopher.yukins@arnoldporter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeanett P. Henry LAW OFFICE OF JEANETT P. HENRY 8403 Colesville Road Suite 1100 Silver Spring, MD 20910 (301) 562−1340 Fax: (240) 638−2701 Email: jhenry2085@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen Elizabeth Ittig ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Avenue, NW Washington, DC 20001 (202) 942−5767 Fax: (202) 942−5999 Email: Kristen.Ittig@arnoldporter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/02/2020
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# Docket Text
1 COMPLAINT against QUINCY BOOTH, MICHAEL CARVAJAL, DISTRICT OF COLUMBIA, FEDERAL BUREAU OF PRISONS, HOPE VILLAGE, INC. ( Filing fee $ 400 receipt number ADCDC−6983173) filed by THURMAN WILLIAMS, RONALD IAN BOATRIGHT. (Attachments: # 1 Summons to the Federal Bureau of Prisons, # 2 Summons to Michael Carvajal, # 3 Summons to the District of Columbia, # 4 Summons to Quincy Booth, # 5 Summons to Hope Village. Inc., # 6 Summons to the U.S. Attorney for the District of Columbia, # 7 Summons for U.S. Attorney General, # 8 Civil Cover Sheet)(Metz, Kevin) (Entered: 04/02/2020)
2 NOTICE OF RELATED CASE by RONALD IAN BOATRIGHT, THURMAN WILLIAMS. Case related to Case No. 1:20−cv−849. (Metz, Kevin) (Entered: 04/02/2020)
3 MOTION for Temporary Restraining Order by RONALD IAN BOATRIGHT, THURMAN WILLIAMS (Attachments: # 1 Certificate of Counsel Pursuant to LCvR 65.1(a), # 2 Text of Proposed Order)(Metz, Kevin) (Entered: 04/02/2020)
4 WITHDRAWN PURSUANT TO NOTICE FILED ON 4/16/2020.....MOTION for Preliminary Injunction by RONALD IAN BOATRIGHT, THURMAN WILLIAMS (Attachments: # 1 Text of Proposed Order)(Metz, Kevin); Modified on 4/17/2020 (ztth). (Entered: 04/02/2020)
5 MEMORANDUM re 3 MOTION for Temporary Restraining Order filed by THURMAN WILLIAMS, RONALD IAN BOATRIGHT, 4 MOTION for Preliminary Injunction filed by THURMAN WILLIAMS, RONALD IAN BOATRIGHT by RONALD IAN BOATRIGHT, THURMAN WILLIAMS. (Attachments: # 1 Exhibit 1 − Declaration of Dr. Jonathan Giftos, # 2 Exhibit 2 − Declaration of Mr. Thurman Williams, # 3 Exhibit 3 − Declaration of Mr. Ronald Ian Boatright, # 4 Exhibit 4 − Declaration of Mr. Anthony Antonio Pleasant)(Metz, Kevin) (Entered: 04/02/2020)
6 Emergency MOTION to Shorten Defendants Time in which to Respond to Plaintiffs Temporary Restraining Order Motion by RONALD IAN BOATRIGHT, THURMAN WILLIAMS (Attachments: # 1 Text of Proposed Order)(Metz, Kevin) Modified event on 4/3/2020 (znmw). (Entered: 04/02/2020)
7 MOTION For Hearing (Request for A TRO Hearing on or before the Morning of Monday, April 6, 2020) by RONALD IAN BOATRIGHT, THURMAN WILLIAMS re 3 MOTION for Temporary Restraining Order (Metz, Kevin) Modified on 4/2/2020 to correct event (zsb). (Entered: 04/02/2020)
8 NOTICE of Appearance by Clayton D. LaForge on behalf of RONALD IAN BOATRIGHT, THURMAN WILLIAMS (LaForge, Clayton) (Entered: 04/02/2020)
Case Assigned to Judge Colleen Kollar−Kotelly. (zsb) (Entered: 04/02/2020)
9 NOTICE of Corrected Complaint by RONALD IAN BOATRIGHT, THURMAN WILLIAMS re 1 Complaint,, (Metz, Kevin) (Entered: 04/02/2020)
10 SUMMONS (7) Issued Electronically as to QUINCY BOOTH, MICHAEL CARVAJAL, DISTRICT OF COLUMBIA, FEDERAL BUREAU OF PRISONS, HOPE VILLAGE, INC., U.S. Attorney, U.S. Attorney General, and District of Columbia Attorney General (Attachment: # 1 Notice and Consent)(zsb) (Entered: 04/02/2020)

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11 ERRATA of Corrected Motion for Temporary Restraining Order by RONALD IAN BOATRIGHT, THURMAN WILLIAMS re 3 MOTION for Temporary Restraining Order (Attachments: # 1 Corrected Certificate of Counsel Pursuant to LCvR 65.1(a), # 2 Text of Proposed Order)(Metz, Kevin) Modified event on 4/3/2020 (ztd). (Entered: 04/02/2020)
12 ERRATA of Corrected Motion for Preliminary Injunction by RONALD IAN BOATRIGHT, THURMAN WILLIAMS re 4 MOTION for Preliminary Injunction (Attachments: # 1 Text of Proposed Order)(Metz, Kevin) Modified event on 4/3/2020 (ztd). (Entered: 04/02/2020)
13 ERRATA to Memorandum of Law in Support of Motion for Temporary Restraining Order and Motion for Preliminary Injunction by RONALD IAN BOATRIGHT, THURMAN WILLIAMS re 5 Memorandum,, (Metz, Kevin); Modified text on 4/3/2020 (ztth). (Entered: 04/02/2020)
14 ERRATA to Corrected Emergency Motion to Shorten Defendants' Time in which to Respond to Plaintiffs' Temporary Restraining Order Motion by RONALD IAN BOATRIGHT, THURMAN WILLIAMS re 6 Emergency MOTION to Shorten Defendants Time in which to Respond to Plaintiffs Temporary Restraining Order Motion (Attachments: # 1 Text of Proposed Order)(Metz, Kevin); Modified text on 4/3/2020 (ztth). (Entered: 04/02/2020)
15 ERRATA to Corrected Request for A TRO Hearing on or before the Morning of Monday, April 6, 2020 by RONALD IAN BOATRIGHT, THURMAN WILLIAMS re 7 MOTION for Hearing (Metz, Kevin) Modified on 4/3/2020 (ztth). (Entered: 04/02/2020)
16 NOTICE of Appearance by Johnny Hillary Walker, III on behalf of MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS (Walker, Johnny) (Entered: 04/02/2020)
17 NOTICE of Appearance by Arthur B. Spitzer on behalf of All Plaintiffs (Spitzer, Arthur) (Entered: 04/02/2020)
18 NOTICE of Appearance by Scott Michelman on behalf of All Plaintiffs (Michelman, Scott) (Entered: 04/02/2020)
22 Case randomly reassigned to Judge Rudolph Contreras. Judge Colleen Kollar−Kotelly is no longer assigned to the case as deemed not related. (ztnr) (Entered: 04/03/2020)
19 NOTICE of Appearance by Kristen Elizabeth Ittig on behalf of HOPE VILLAGE, INC. (Ittig, Kristen) (Entered: 04/03/2020)
20 NOTICE of Appearance by Christopher R. Yukins on behalf of HOPE VILLAGE, INC. (Yukins, Christopher) (Entered: 04/03/2020)
21 NOTICE of Appearance by Jeanett P. Henry on behalf of HOPE VILLAGE, INC. (Henry, Jeanett) (Entered: 04/03/2020)
23 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Drew R. Wisniewski, Filing fee $ 100, receipt number ADCDC−6987422. Fee Status: Fee Paid. by RONALD IAN BOATRIGHT, THURMAN WILLIAMS (Attachments: # 1 Exhibit A, # 2 Exhibit B)(LaForge, Clayton) (Entered: 04/03/2020)
24 NOTICE of Appearance by Andrew J. Saindon on behalf of QUINCY BOOTH, DISTRICT OF COLUMBIA (Saindon, Andrew) (Entered: 04/03/2020)
MINUTE ORDER granting 6 Plaintiffs' emergency motion to shorten Defendants' time in which to respond to Plaintiffs' application for a temporary restraining order. It is hereby ORDERED that Defendants shall file their response to Plaintiffs' motion by 5:00 PM on Monday, April 6. SO ORDERED. Signed by Judge Rudolph Contreras on April 3, 2020. (lcrc3) (Entered: 04/03/2020)
Set/Reset Deadlines: Responses due by 4/6/2020 (tj) (Entered: 04/03/2020)
MINUTE ORDER: Upon consideration of 7 Plaintiffs' motion for a hearing, it is hereby ORDERED that the parties shall appear before the Court by telephone for a hearing on April 7, 2020, at 12:00 p.m. Specific call−in instructions will follow via

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e−mail. SO ORDERED. Signed by Judge Rudolph Contreras on April 3, 2020. (lcrc3) (Entered: 04/03/2020)
MINUTE ORDER denying 23 Motion for Leave to Appear Pro Hac Vice: The Court notes that Drew R. Wisniewski is admitted to the District of Columbia Bar and maintains an office within the District of Columbia. Pursuant to Local Civil Rule 83.2(c)(2) ("Practice by Non−Members of the Bar of this Court"), "[a]n attorney who engages in the practice of law from an office located in the District of Columbia must be a member of... the Bar of this Court to file papers in this Court." Pursuant to Local Civil Rule 83.8(a), attorneys who are active members in good standing of the District of Columbia Bar may petition the Clerk for admission to the bar of this court. Mr. Wisniewski may submit his application to the Clerk in advance of the Court's scheduled hearing, and, if he seeks to speak at the hearing, he may make a request then and state that the application is pending, but he has not yet been sworn in. SO ORDERED. Signed by Judge Rudolph Contreras on April 3, 2020. (lcrc3) (Entered: 04/03/2020)
25 MOTION to Certify Class and Appointment of Class Counsel by RONALD IAN BOATRIGHT, THURMAN WILLIAMS (Attachments: # 1 Declaration of Kevin Metz, # 2 Declaration of Emily Gunston, # 3 Declaration of Scott Michelman, # 4 Text of Proposed Order)(Metz, Kevin). Added MOTION to Appoint Lead Counsel on 4/6/2020 (ztth). Modified on 4/6/2020 (znmw). (Entered: 04/03/2020)
26 NOTICE of Appearance by Lyndsay Ayanna Niles on behalf of RONALD IAN BOATRIGHT, THURMAN WILLIAMS (Niles, Lyndsay) (Entered: 04/03/2020)
Set/Reset Hearings: Status Conference set for 4/7/2020 at 12:00 PM before Judge Rudolph Contreras. (tj) (Entered: 04/03/2020)
27 NOTICE of Appearance by Micah Ian Bluming on behalf of QUINCY BOOTH, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 04/05/2020)
28 Memorandum in opposition to re 3 MOTION for Temporary Restraining Order filed by QUINCY BOOTH, DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Text of Proposed Order)(Bluming, Micah) (Entered: 04/06/2020)
29 Memorandum in opposition to re 3 MOTION for Temporary Restraining Order filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS. (Attachments: # 1 Declaration of Jon Gustin, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(Walker, Johnny) (Entered: 04/06/2020)
30 Memorandum in opposition to re 3 MOTION for Temporary Restraining Order filed by HOPE VILLAGE, INC.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Ittig, Kristen) (Entered: 04/06/2020)
31 Unopposed MOTION for Extension of Time to File Opposition by HOPE VILLAGE, INC. (Ittig, Kristen) (Entered: 04/06/2020)
MINUTE ORDER granting 31 Defendant's request for an extension of time. It is hereby ORDERED that Defendant Hope Village is granted an extension of time to 5:10 PM Eastern Time to file its response. SO ORDERED. Signed by Judge Rudolph Contreras on April 6, 2020. (lcrc3) (Entered: 04/06/2020)
32 NOTICE of Appearance by Pamela A. Disney on behalf of QUINCY BOOTH, DISTRICT OF COLUMBIA (Disney, Pamela) (Entered: 04/06/2020)
33 NOTICE of Appearance by Michael Krevans Perloff on behalf of All Plaintiffs (Perloff, Michael) (Entered: 04/07/2020)
34 MOTION for Leave to File Reply and Supplemental Affidavit by RONALD IAN BOATRIGHT, THURMAN WILLIAMS (Attachments: # 1 Exhibit Proposed Reply, # 2 Exhibit Exhibit 1 to Proposed Reply, # 3 Exhibit Exhibit 2 to Proposed Reply, # 4 Exhibit Exhibit 3 to Proposed Reply, # 5 Exhibit Exhibit 4 to Proposed Reply, # 6 Exhibit Exhibit 5 to Proposed Reply)(Metz, Kevin) (Entered: 04/07/2020)
NOTICE OF ERROR re 32 Notice of Appearance; emailed to pdisney@outtengolden.com, cc'd 28 associated attorneys −− The PDF file you docketed contained errors: 1. Please update your address in PACER. (ztth, ) (Entered:

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MINUTE ORDER granting 34 Plaintiffs' motion for leave to file reply and supplemental affidavit. SO ORDERED. Signed by Judge Rudolph Contreras on April 7, 2020. (lcrc3) (Entered: 04/07/2020)
Minute Entry for proceedings held before Judge Rudolph Contreras: Motion Hearing held on 4/7/2020 re 3 MOTION for Temporary Restraining Order filed by THURMAN WILLIAMS, RONALD IAN BOATRIGHT. Oral argument heard, and motion is DENIED for reasons stated on the record. Next Status Conference set for 4/14/2020 at 11:00 AM before Judge Rudolph Contreras. Order to follow. (Court Reporter: Sara Wick.) (tj) (Entered: 04/07/2020)
35 ORDER denying 3 Plaintiffs' Motion for TRO. See document for details. Signed by Judge Rudolph Contreras on April 7, 2020. (lcrc3) (Entered: 04/07/2020)
36 REPLY to opposition to motion re 3 MOTION for Temporary Restraining Order filed by RONALD IAN BOATRIGHT, THURMAN WILLIAMS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5) (ztth) (Entered: 04/07/2020)
37 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/07/2020)
38 SEALED DOCUMENT filed by HOPE VILLAGE, INC.(This document is SEALED and only available to authorized persons.)(Henry, Jeanett) (Entered: 04/08/2020)
39 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/08/2020)
40 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/09/2020)
41 SEALED DOCUMENT filed by HOPE VILLAGE, INC.(This document is SEALED and only available to authorized persons.)(Henry, Jeanett) (Entered: 04/09/2020)
42 WITHDRAWN AS PER HEARING HELD ON 4/17/2020.........Emergency MOTION to Compel Entry and Examination by RONALD IAN BOATRIGHT, THURMAN WILLIAMS (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Metz, Kevin). Added MOTION on 4/10/2020 (ztth). (Entered: 04/09/2020)
MINUTE ORDER: It is hereby ORDERED that Defendant Hope Village shall respond to 42 Plaintiffs' motion to compel by 5:00 PM on Monday, April 13, 2020. In the interim, it is FURTHER ORDERED that any individuals who seek to inspect the Hope Village facility shall inquire about (1) the process to obtain COVID−19 tests for themselves and (2) how to expeditiously avail themselves of any available resources for such testing. SO ORDERED. Signed by Judge Rudolph Contreras on April 9, 2020. (lcrc3) (Entered: 04/09/2020)
Set/Reset Deadlines: Responses due by 4/13/2020. (tj) (Entered: 04/09/2020)
43 Joint MOTION for Extension of Time to File Supplemental Briefing by RONALD IAN BOATRIGHT, THURMAN WILLIAMS (Attachments: # 1 Text of Proposed Order)(Metz, Kevin) (Entered: 04/10/2020)
MINUTE ORDER granting 43 the parties' joint motion for extension of time to file supplemental briefing. It is hereby ORDERED that the parties shall submit any supplemental briefing on Plaintiffs' motion for a preliminary injunction by 11:00 AM on Monday, April 13, 2020. SO ORDERED. Signed by Judge Rudolph Contreras on April 10, 2020. (lcrc3) (Entered: 04/10/2020)
44 SEALED DOCUMENT filed by HOPE VILLAGE, INC.(This document is SEALED and only available to authorized persons.)(Henry, Jeanett) (Entered: 04/10/2020)
45 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized

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persons.)(Walker, Johnny) (Entered: 04/10/2020)
46 SEALED DOCUMENT filed by HOPE VILLAGE, INC.(This document is SEALED and only available to authorized persons.)(Henry, Jeanett) (Entered: 04/11/2020)
47 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/11/2020)
48 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/12/2020)
49 MOTION for Extension of Time to File Supplemental Briefing and to Reschedule Hearing on Plaintiffs' Motion for Preliminary Injunction by RONALD IAN BOATRIGHT, THURMAN WILLIAMS (Attachments: # 1 Text of Proposed Order)(Metz, Kevin). Added MOTION to Continue on 4/13/2020 (ztth). (Entered: 04/13/2020)
MINUTE ORDER granting 49 Plaintiffs' uncontested motion for extension of time and to reschedule. It is hereby ORDERED that the parties shall submit any supplemental briefing on Plaintiffs' motion for a preliminary injunction by 11:00 AM on April 16, 2020. It is FURTHER ORDERED that the telephone hearing on Plaintiffs' motion for a preliminary injunction currently scheduled for Tuesday, April 14, 2020 at 11:00 AM is VACATED and RESCHEDULED for Friday, April 17, 2020 at 11:30 AM. Specific call−in instructions will follow via e−mail. SO ORDERED. Signed by Judge Rudolph Contreras on April 13, 2020. (lcrc3) (Entered: 04/13/2020)
Set/Reset Deadlines/Hearings: Motion for Preliminary Injuction due by 4/16/2020 at 11:00 AM. Telephone Conference reset for 4/17/2020 at 11:30 AM before Judge Rudolph Contreras. (zcal) (Entered: 04/13/2020)
50 SEALED DOCUMENT filed by HOPE VILLAGE, INC.(This document is SEALED and only available to authorized persons.)(Henry, Jeanett) (Entered: 04/13/2020)
51 Joint MOTION for Protective Order by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS (Attachments: # 1 Text of Proposed Order)(Walker, Johnny) (Entered: 04/13/2020)
52 TRANSCRIPT OF PROCEEDINGS before Judge Rudolph Contreras, held on 04/07/2020. Page Numbers: 1−46. Date of Issuance: 04/13/2020. Court Reporter: Sara Wick, telephone number 202−354−3284. Transcripts may be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. Afte r 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 5/4/2020. Redacted Transcript Deadline set for 5/14/2020. Release of Transcript Restriction set for 7/12/2020.(Wick, Sara) (Entered: 04/13/2020)
53 PROTECTIVE ORDER: See document for details. Signed by Judge Rudolph Contreras on April 13, 2020. (lcrc3) (Entered: 04/13/2020)
54 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/13/2020)
55 RESPONSE re 42 Emergency MOTION to Compel Entry and Examination Defendant Hope Village, Inc.'s Opposition to Plaintiff's Motion to Compel Discovery filed by

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HOPE VILLAGE, INC.. (Attachments: # 1 Text of Proposed Order)(Ittig, Kristen) (Entered: 04/13/2020)
56 SEALED DOCUMENT filed by HOPE VILLAGE, INC.(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit)(Henry, Jeanett) (Entered: 04/13/2020)
57 REPLY to opposition to motion re 42 Emergency MOTION to Compel Entry and Examination filed by RONALD IAN BOATRIGHT, THURMAN WILLIAMS. (Metz, Kevin) (Entered: 04/14/2020)
58 SEALED DOCUMENT filed by HOPE VILLAGE, INC.(This document is SEALED and only available to authorized persons.)(Henry, Jeanett) (Entered: 04/14/2020)
59 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/14/2020)
60 Consent MOTION for Extension of Time to Respond to Plaintiffs' Complaint and to Stay Response to Plaintiffs' Motion to Certify Class by QUINCY BOOTH, DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Bluming, Micah). Added MOTION to Stay on 4/15/2020 (ztth). (Entered: 04/15/2020)
MINUTE ORDER granting 60 Defendants' consent motion for extension of time. It is hereby ORDERED that Defendants the District and Hope Village shall respond to Plaintiffs' Complaint by May 8, 2020, and Defendant the BOP shall respond to Plaintiffs' complaint by June 2, 2020. It is FURTHER ORDERED that Defendants' obligation to respond to 25 Plaintiffs' motion to certify class is STAYED pending further order of the Court. SO ORDERED. Signed by Judge Rudolph Contreras on April 15, 2020. (lcrc3) (Entered: 04/15/2020)
61 SEALED DOCUMENT filed by HOPE VILLAGE, INC.(This document is SEALED and only available to authorized persons.)(Henry, Jeanett) (Entered: 04/15/2020)
Set/Reset Deadlines: District of Columbia and Hope Village to respond to plaintiff's complaint by 5/8/2020; BOP shall respond to plaintiff's complaint by 6/2/2020. (tj) (Entered: 04/15/2020)
62 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/15/2020)
63 SUPPLEMENTAL MEMORANDUM to re 4 MOTION for Preliminary Injunction (REDACTED) filed by RONALD IAN BOATRIGHT, THURMAN WILLIAMS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 (REDACTED), # 3 Exhibit 3 (REDACTED))(Metz, Kevin) (Entered: 04/16/2020)
64 Memorandum in opposition to re 4 MOTION for Preliminary Injunction filed by QUINCY BOOTH, DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1)(Bluming, Micah) (Entered: 04/16/2020)
65 SEALED DOCUMENT filed by RONALD IAN BOATRIGHT, THURMAN WILLIAMS re 63 Supplemental Memorandum, (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 2, # 2 Exhibit 3)(Metz, Kevin) (Entered: 04/16/2020)
66 SUPPLEMENTAL MEMORANDUM re 4 MOTION for Preliminary Injunction (Defendant Hope Village Inc.'s Supplemental Opposition to Plaintiff's Motion for a Preliminary Injunction) filed by HOPE VILLAGE, INC.. (Attachments: # 1 Exhibit)(Ittig, Kristen) Modified event title on 4/20/2020 (znmw). (Entered: 04/16/2020)
67 SUPPLEMENTAL MEMORANDUM to the BOP's Opposition to Plaintiffs' Motion for a Preliminary Injunction filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS. (Attachments: # 1 Supplemental Declaration of Jon Gustin (with exhibits))(Walker, Johnny) (Entered: 04/16/2020)

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04/18/2020 04/19/2020 04/20/2020 04/20/2020 04/21/2020 04/21/2020

68 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Text of Proposed Order, # 2 Exhibit)(Walker, Johnny) (Entered: 04/16/2020)
69 SEALED DOCUMENT filed by HOPE VILLAGE, INC.(This document is SEALED and only available to authorized persons.)(Henry, Jeanett) (Entered: 04/16/2020)
70 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/16/2020)
71 NOTICE OF WITHDRAWAL OF MOTION by RONALD IAN BOATRIGHT, THURMAN WILLIAMS re 4 MOTION for Preliminary Injunction (Metz, Kevin) (Entered: 04/16/2020)
Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 4/17/2020. Emergency MOTION 42 to Compel Entry and Examination is WITHDRAWN as directed by the court, subject to refiling by plaintiffs. Materials for in−camera review shall be submitted to the court by April 20, 2020. Next Telephone Conference set for 4/24/2020 at 11:30 AM before Judge Rudolph Contreras. (Court Reporter: Bryan Wayne) (tj) (Entered: 04/17/2020)
72 SEALED DOCUMENT filed by HOPE VILLAGE, INC.(This document is SEALED and only available to authorized persons.)(Henry, Jeanett) (Entered: 04/17/2020)
73 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/17/2020)
74 TRANSCRIPT OF PRELIMINARY INJUNCTION CONFERENCE before Judge Rudolph Contreras held on April 17, 2020; Page Numbers: 1−17. Date of Issuance: April 17, 2020. Court Reporter: Bryan A. Wayne. Transcripts may be ordered by submitting the Transcript Order Form at www.dcd.uscourts.gov. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 5/8/2020. Redacted Transcript Deadline set for 5/18/2020. Release of Transcript Restriction set for 7/16/2020.(Wayne, Bryan) (Entered: 04/17/2020)
75 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/18/2020)
76 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/19/2020)
77 SEALED DOCUMENT filed by HOPE VILLAGE, INC.(This document is SEALED and only available to authorized persons.)(Henry, Jeanett) (Entered: 04/20/2020)
78 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/20/2020)
79 SEALED DOCUMENT filed by HOPE VILLAGE, INC.(This document is SEALED and only available to authorized persons.)(Henry, Jeanett) (Entered: 04/21/2020)
80 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/21/2020)

04/22/2020 04/22/2020 04/23/2020 04/23/2020 04/24/2020
04/24/2020 04/24/2020 04/25/2020 04/26/2020 04/27/2020 04/27/2020 04/28/2020 04/28/2020

81 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/22/2020)
82 SEALED DOCUMENT filed by HOPE VILLAGE, INC.(This document is SEALED and only available to authorized persons.)(Henry, Jeanett) (Entered: 04/22/2020)
83 SEALED DOCUMENT filed by HOPE VILLAGE, INC.(This document is SEALED and only available to authorized persons.)(Henry, Jeanett) (Entered: 04/23/2020)
84 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/23/2020)
Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 4/24/2020. Parties inform the court of the status of this action. Parties to submit status reports due by 5/1/2020. (Court Reporter: Lisa Bankins.) (tj) (Entered: 04/24/2020)
85 SEALED DOCUMENT filed by HOPE VILLAGE, INC.(This document is SEALED and only available to authorized persons.)(Henry, Jeanett) (Entered: 04/24/2020)
86 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/24/2020)
87 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/25/2020)
88 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/26/2020)
89 SEALED DOCUMENT filed by MICHAEL CARVAJAL, FEDERAL BUREAU OF PRISONS(This document is SEALED and only available to authorized persons.)(Walker, Johnny) (Entered: 04/27/2020)
90 SEALED DOCUMENT filed by HOPE VILLAGE, INC.(This document is SEALED and only available to authorized persons.)(Henry, Jeanett) (Entered: 04/27/2020)
91 SEALED DOCUMENT filed by HOPE VILLAGE, INC.(This document is SEALED and only available to authorized persons.)(Henry, Jeanett) (Entered: 04/28/2020)
92 NOTICE of Voluntary Dismissal by RONALD IAN BOATRIGHT, THURMAN WILLIAMS (Metz, Kevin) (Entered: 04/28/2020)

 
 Case 1:20-cv-00890-RC Document 5 Filed 04/02/20 Page 1 of 38

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THURMAN WILLIAMS, et al.,
Plaintiffs-Petitioners,
v. FEDERAL BUREAU OF PRISONS, et al.,
Defendants-Respondents.

Civil No. _1_:2_0_-_c_v_-_8_9_0_____

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

Case 1:20-cv-00890-RC Document 5 Filed 04/02/20 Page 2 of 38
TABLE OF CONTENTS
Page IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ..........1 INTRODUCTION ...........................................................................................................................1 FACTUAL BACKGROUND ..........................................................................................................3 I. The COVID-19 Pandemic....................................................................................................3 II. The Virus Poses Particular Risks in the Correctional Environment ....................................5 III. The Conditions at Hope Village ..........................................................................................8 LEGAL STANDARD....................................................................................................................12 ARGUMENT .................................................................................................................................13 IV. Plaintiffs are Likely to Succeed on the Merits of Establishing a Constitutional
Violation and Negligence. .................................................................................................13 A. The Governmental Defendants’ Deliberate Indifference to Plaintiffs’
Health and Safety Violates Plaintiffs’ Eighth Amendment Rights........................14 1. Plaintiffs’ conditions of confinement are sufficiently serious as to
pose a substantial risk of serious harm by exposing them to an infectious disease. ......................................................................................14 2. The governmental defendants continue to show deliberate indifference to the substantial risk of harm that COVID-19 poses to Plaintiffs. ....................................................................................................16 B. Hope Village has Breached its Duty of Care Owed to the Prisoners, Resulting in Harm. .................................................................................................20 V. There is a Strong Public Interest in Minimizing the Spread of COVID-19 through Social Distancing and Hygiene Practices that are Impossible at Hope Village.................25 VI. The Balance of Equities Favors an Improvement in Conditions in Hope Village, Including Depopulation. ....................................................................................................26 CLASS ALLEGATIONS ..............................................................................................................29 CONCLUSION ..............................................................................................................................29
i

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TABLE OF AUTHORITIES
Page(s)
CASES
Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2009) ...............................................................................................12
Abdullah v. Bush, 945 F. Supp. 2d 64 (D.D.C. 2013), aff’d sub nom. Abdullah v. Obama, 753 F.3d 193 (D.C. Cir. 2014) ........................................................................................................13
Aracely R. v. Nielsen, 319 F. Supp. 3d 110 (D.D.C. 2018) .........................................................................................27
Austin v. Pa. Dep’t of Corr., No. 90-7497, 1992 WL 277511 (E.D. Pa. Sept. 29, 1992) ......................................................24
Baker v. Sard, 420 F.2d 1342 (D.C. Cir. 1969) ...............................................................................................12
Bame v. Dillard, No. 05-cv-1833, 2008 WL 2168393 (D.D.C. May 22, 2008)..................................................29
Boone v. Brown, No. Civ. 05-0750(AET), 2005 WL 2006997 (D.N.J. Aug. 22, 2005) .....................................24
Brown v. Plata, 563 U.S. 493 (2011).................................................................................................................12
Busby v. Capital One, N.A., 772 F. Supp. 2d 268 (D.D.C. 2011) .........................................................................................20
Caldwell v. Dist. of Columbia, 201 F. Supp. 2d 27 (D.D.C. 2001) ...........................................................................................14
Castillo v. Barr, No. 20-cv-605 (TJH) (C.D. Cal. Mar. 27, 2020) .....................................................................28
Chang v. United States, 217 F.R.D. 262 (D.D.C. 2003).................................................................................................29
Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288 (D.C. Cir. 2009) ...............................................................................................12
Dunlap v. Presidential Advisory Comm’n on Election Integrity, 319 F. Supp. 3d 70 (D.D.C. 2018), rev’d on other grounds, 944 F.3d 945 (D.C. Cir. 2019) .......................................................................................................................12
ii

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Elrod v. Burns, 427 U.S. 347 (1976) (plurality opinion) ..................................................................................25
In re Extradition of Toledo Manrique, No. 19-mj-71055-MAG-1 (TSH), (N.D. Cal. Mar. 19, 2020) ...................................................1
Farmer v. Brennan, 511 U.S. 825 (1994).....................................................................................................14, 16, 17
Farmer v. Moritsugu, 163 F.3d 610 (D.C. Cir. 1998) .................................................................................................16
Feirson v. D.C., 362 F. Supp. 2d 244 (D.D.C. 2005), aff’d, 506 F.3d 1063 (D.C. Cir. 2007) ...........................20
Fraternal Order of Police Library of Congress Labor Comm. v. Library of Congress, 639 F. Supp. 2d 20 (D.D.C. 2009) ...........................................................................................23
Harris v. Bd. of Supervisors, 366 F.3d 754 (9th Cir. 2004) ...................................................................................................27
Helling v. McKinney, 509 U.S. 25 (1993).................................................................................................14, 15, 16, 24
Hickey v. Wash. Metro. Area Transit Auth., 360 F. Supp. 2d 60 (D.D.C. 2004) ...........................................................................................21
Hutto v. Finney, 437 U.S. 678 (1978)...........................................................................................................12, 15
Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996).......................................................................................................24
Jones v. Hurwitz, 324 F. Supp. 3d 97 (D.D.C. 2018) ...........................................................................................16
Jones v. Tex. Dep’t of Criminal Justice, 880 F.3d 756 (5th Cir. 2018) ...................................................................................................24
Kifafi v. Hilton Hotels Retirement Plan, 189 F.R.D. 174.........................................................................................................................29
Kirwa v. U.S Dep’t of Defense, 285 F. Supp. 3d 21 (D.D.C. 2017) ...........................................................................................29
Mills v. Dist. of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) ...............................................................................................24
iii

Case 1:20-cv-00890-RC Document 5 Filed 04/02/20 Page 5 of 38
Morris v. Corr. Corp. of Am., 75 F. Supp. 3d 457 (D.D.C. 2014) ...........................................................................................20
R.I.L-R v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) ...........................................................................................29
In re Request to Commute or Suspend County Jail Sentence, Case No. 084230 (N.J.S.C. Mar. 22, 2020) .............................................................................28
In re Request to Commute or Suspend County Jail Sentences, Case No. 84230 (N.J. Mar. 22, 2020) ........................................................................................1
United States v. Bell et al., No. 1:16-cr-00485-JKB (D. Md. Mar. 19, 2020), Dkt. Nos. 1726-27.....................................28
United States v. Fellela, No. 3:19-cr-79 (JAM), 2020 U.S. Dist. LEXIS 49198 (D. Conn. Mar. 20, 2020) ........................................................................................................................................28
United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 988 (D.D.C. 2006) .........................................................................................26
United States v. Stephens, No. 15-cr-95 (AJN), 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020) .......................................28
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008).....................................................................................................................12
Women Prisoners of D.C. Dep’t of Corr. v. D.C., 899 F. Supp. 659 (D.D.C. 1995) ........................................................................................22, 23 RULES
Fed. R. Civ. P. 23(c)(1)..................................................................................................................29 TREATISES
Restatement (Second) of Torts § 314A (1965) ..............................................................................20 REGULATIONS
67 D.C. Reg. 3106 (March 20, 2020) ..............................................................................................8 CONSTITUTIONAL PROVISIONS
U.S. Const. amend. VIII.....................................................................................................13, 14, 15
iv

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OTHER AUTHORITIES
Antonio Olivo, Ovetta Wiggins, & Fenit Nirappil, Virginia, Maryland governors warn that hospitals soon may be overwhelmed by surge in coronavirus cases, WASH. POST (Mar. 27, 2020) ...................................................................................................26
Centers for Disease Control and Prevention, Coronavirus (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/index.html (last visited Apr. 1, 2020) ........................................................................................................................................21
Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID19), How it Spreads, https://www.cdc.gov/coronavirus/2019ncov/prepare/transmission.html (last visited Apr. 1, 2020) .......................................................3
Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID19): How to Protect Yourself, https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/prevention.html (last visited Mar. 30, 2020) .................................22
Centers for Disease Control and Prevention, Influenza (Flu), Past Seasons, Table 1: Estimated Influenza Disease Burden by Season — United States 2010-11 through 2018-19 Influenza Seasons (Jan. 9, 2020), https://www.cdc.gov/flu/about/burden/past-seasons.html .........................................................4
Centers for Disease Control and Prevention, Morbidity and Mortality Weekly Report (MMWR), Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) United States, February 12-March 16, 2020, (Mar. 26, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm ........................................4
Chuk Goudie et. al., Illinois prisoners sick with COVID-19 “overwhelm” Joliet hospital, ABC CHIC. (Mar. 30, 2020), https://abc7chicago.com/coronavirusillinois-chiciago-cases/6064085/..............................................................................................26
D.C. Inmates in Federal Bureau of Prisons, as Congress Intended, in Light of Coronavirus (Mar. 22, 2020), https://norton.house.gov/media-center/pressreleases/norton-urges-department-of-justice-to-apply-first-step-act-to-dcinmates .....................................................................................................................................18
Department of Corrections: Correction Detention Facility, DC.gov, https://doc.dc.gov/page/correctional-facilities (last visited Mar. 31, 2020) ..............................8
Federal Halfway House Say They Are Stuck Inside Without Essential Supplies, WAMU 88.5 American University Radio (Mar. 25, 2020), https://wamu.org/story/20/03/25/men-in-d-c-s-federal-halfway-house-saythey-are-stuck-inside-without-essential-supplies/........................................................11, 17, 19
Government of District of Columbia, Public Safety Agency COVID-19 Case Data: Department of Corrections (Mar. 30, 2020), https://coronavirus.dc.gov/page/public-safety-agency-covid-19-case-data ...............................6
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Jack Moore, Coronavirus: Maryland announces 1st Covid-19-related death as region sees jump in new cases, WTOP NEWS (Mar. 18, 2020), https://wtop.com/coronavirus/2020/03/coronavirus-updates-dc-marylandvirginia/ ......................................................................................................................................7
Jan Ramsen & Alan Feuer, ‘We’re Left for Dead’: Fears of Virus Catastrophe at Rikers Jail, N.Y. Times (Mar. 30, 2020) ...................................................................................5
Jenny Gross & Mariel Padilla, From Flattening the Curve to Pandemic: A Coronavirus Glosssary, N.Y. Times (Mar. 18, 2020) ...............................................................4
Johns Hopkins University & Medicine, Coronavirus Resource Center, https://coronavirus.jhu.edu/map.html (last visited Mar. 31, 2020)............................................3
Justin Moyer and Keith Alexander, D.C. Council member calls on Federal Bureau of Prisons to address coronavirus concerns at halfway house, Washington Post (Mar. 26, 2020) ............................................................................................17
Kailyn Brown et al., A 25-year-old pharmacy tech dies from coronavirus. It’s an urgent warning for young people, L.A. TIMES (Mar. 30, 2020), https://www.latimes.com/california/story/2020-03-30/25-year-old-diescoronavirus-warning ..................................................................................................................4
Kimberly Kindy, An explosion of coronavirus cases cripples a federal prison in Louisiana, WASH. POST (Mar. 29, 2020) ...................................................................................6
Ltr. from Lyndsay Niles, Washington Lawyers’ Committee for Civil Rights and Urban Affairs, to Joseph Wilmer, Administrative Director, Hope Village (Mar. 25, 2020), https://www.washlaw.org/wpcontent/uploads/2020/03/2020.03.25.Letter-to-Hope-Village-regardingCoronavirus.pdf .......................................................................................................................18
March 27, 2020 Letter in Press Release: Norton Calls on Federal Bureau of Prisons to Ensure Hope Village Halfway House Residents Safe During the Coronavirus, The DC Line (Mar. 27. 2020), https://thedcline.org/2020/03/27/press-release-norton-calls-on-federal-bureauof-prisons-to-ensure-hope-village-halfway-house-residents-safe-during-thecoronavirus/..............................................................................................................................11
Mayor Bowser Orders Closure of Non-Essential Businesses (Mar. 24, 2020), https://coronavirus.dc.gov/release/mayor-bowser-orders-closure-nonessential-businesses................................................................................................................7, 8
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Memorandum from Jon Gustin, Administrator, Residential Reentry Management Branch, to All RRC Contract Providers, Coronavirus (COVID-19) Precautions/Modified Operations for Residential Reentry Centers (Mar. 24, 2020), https://www.bop.gov/coronavirus/docs/memo_modified_rrc_operations_2020 0324.pdf .............................................................................................................................17, 21
Re: CIC Visit to Hop Village on Thursday, March 26, 2020, DC.gov (Mar. 27, 2020), https://cic.dc.gov/node/1469876...................................................................................18
Rick Noack et al., White House task force projects 100,000 to 240,000 deaths in U.S., even with mitigation efforts, WASH. POST (April 1, 2020), https://www.washingtonpost.com/world/2020/03/31/coronavirus-latestnews/?wpmk=1&wpisrc=al_news__alertnational&utm_source=alert&utm_medium=email&utm_campaign=wp_news_ alert_revere ................................................................................................................................3
Sam Kelly, Sheriff announces 51 new coronavirus cases at Cook County Jail, raising total to 89, CHI. SUN TIMES (Mar. 28, 2020), https://chicago.suntimes.com/coronavirus/2020/3/28/21198407/cook-countyjail-coronavirus-covid-19-cases-inmates-89 ..............................................................................6
Sophie Kaplan, Union vote ‘no confidence’ in D.C. Jail leaders for handling of Covid-19, WASH. TIMES (Mar. 20, 2020), https://www.washingtontimes.com/news/2020/mar/20/union-votes-noconfidence-dc-jail-leaders-handling/ .........................................................................................7
U.S. Sees Exponential Growth In Coronavirus Death Toll, NPR (Mar. 29, 2020), https://www.npr.org/sections/coronavirus-liveupdates/2020/03/29/823497607/u-s-sees-exponential-growth-in-coronavirusdeath-toll ....................................................................................................................................3
WASH. POST, https://www.washingtonpost.com/graphics/local/dc-marylandvirginia-coronavirus-cases/?itid=sf_local (showing that cases in Washington D.C., Maryland, and Virginia have surged from zero cases at the beginning of March to over 4,062 cases by April 1, 2020 and that 82 people in the region have died from the disease) (last visited Mar. 31, 2020) ...........................................................6
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INTRODUCTION COVID-19, the disease caused by the novel coronavirus, is a global pandemic that spreads easily from person-to-person. Custodial living spaces, such as prisons, jails, and especially halfway houses, present particularly serious risks related to COVID-19. Plaintiffs bring this action on behalf of men who are detained by the U.S. Bureau of Prisons (“BOP”) and the D.C. Department of Corrections (“DOC”) at Hope Village, a privately-run halfway house for up to 349 men in Washington, D.C. As described below and in the Complaint filed with this Motion, crowding, sanitation and hygiene measures at Hope Village are dangerously inadequate, violate constitutional norms, and fail to comply with the basic medical guidance to mitigate the spread of COVID-19 from the Centers for Disease Control and Prevention (“CDC”), the District of Columbia and the American Jail Association. Absent emergency steps to reduce the population, improve sanitation and hygiene resources, and enable social distancing, Hope Village presents a urgent risk of a COVID-19 outbreak within its facility, and endangers the lives of not only the detainees, but the staff and surrounding community. Courts across the country are recognizing the need for relief, and have taken decisive steps in ordering prisons, jails, halfway houses, and other detention facilities to reduce their prisoner populations to slow the spread of the virus. For example, on March 22, 2020, the New Jersey Supreme Court put in place a procedure for the release of 1,000 men and women serving sentences in New Jersey jails. See Consent Order, In re Request to Commute or Suspend County Jail Sentences, Case No. 84230 (N.J. Mar. 22, 2020). In another federal case earlier this month, the Northern District of California observed that “the government’s suggestion that [the plaintiff] should wait until there is a confirmed outbreak of COVID-19 in [the facility] before seeking release is impractical. By then it may be too late.” In re Extradition of Toledo Manrique, No. 19-mj-
1

Case 1:20-cv-00890-RC Document 5 Filed 04/02/20 Page 10 of 38
71055-MAG-1 (TSH), at *1 (N.D. Cal. Mar. 19, 2020) (citation omitted). Courts in many other jurisdictions are following suit and ordering the release of detainees, including prisoners in facilities where COVID-19 has not yet appeared.
The Court should join this growing chorus of judges around the country who recognize that this public health crisis demands immediate intervention. For the reasons discussed below, Plaintiffs petition the Court to issue a temporary restraining order followed by a preliminary injunction requiring that Defendants take immediate action to drastically reduce the crowding at Hope Village by releasing prisoners to a level that permits the facility to be run in accordance with all public health guidelines.
The prisoners in Hope Village are in the lowest custodial security status and present a very low risk to public safety. Most are serving the last few months of their sentences before release. The government recognizes as much, because they are already free to be in the community on a daily basis (or they were, until locked down because of the virus). Population reduction can be readily achieved by: (i) promptly releasing to home confinement all individuals with viable options for home confinement; and (ii) to the extent that home confinement release is insufficient to depopulate the facility in a manner that permits appropriate and CDC-recommended social distancing, providing alternative temporary community supervision, the advancement of release dates, furloughs, or other measures.
Further, the Court should mandate that Defendants implement all medically-necessary precautions to ensure the health and safety of its population during the COVID-19 pandemic. These precautions include measures that guarantee detainees have timely access to competent, sufficient, and appropriately qualified staffing, medical care, screening, social distancing
2

Case 1:20-cv-00890-RC Document 5 Filed 04/02/20 Page 11 of 38
measures, sanitation methods, education, equipment, hospitals, and all other medically necessary protective measures.
FACTUAL BACKGROUND I. The COVID-19 Pandemic
COVID-19 is an out-of-control global pandemic. In just the last few days, the number of cases has exploded. As of April 1, 2020 there were more than 932,000 reported COVID-19 cases throughout the world and more than 213,000 cases and 4,700 deaths in the United States. See Johns Hopkins University & Medicine, Coronavirus Resource Center, https://coronavirus.jhu.edu/map.html (last visited Mar. 31, 2020). The number of cases and deaths is expected to continue to grow exponentially. See Meg Anderson, U.S. Sees Exponential Growth In Coronavirus Death Toll, NPR (Mar. 29, 2020), https://www.npr.org/sections/coronavirus-liveupdates/2020/03/29/823497607/u-s-sees-exponential-growth-in-coronavirus-death-toll. Even given the widespread mitigation efforts currently in place across the nation, the White House Coronavirus Task Force projected on March 31, 2020 that 100,000 – 240,000 Americans will likely die from the virus and, without proper public health strategies and mitigation efforts, 1.5 to 2 million Americans may die. See Rick Noack et al., White House task force projects 100,000 to 240,000 deaths in U.S., even with mitigation efforts, WASH. POST (April 1, 2020), https://www.washingtonpost.com/world/2020/03/31/coronavirus-latestnews/?wpmk=1&wpisrc=al_news__alertnational&utm_source=alert&utm_medium=email&utm_campaign=wp_news_alert_revere.
There is at present no vaccine or cure for COVID-19. See Ex. 1, Declaration of Dr. Jonathan Giftos (“Ex. 1, Giftos Decl.”) ¶ 8. The disease spreads “easily and sustainably” from person-to-person by respiratory droplets, close personal contact, and from contact with contaminated surfaces and objects. See Ex. 1, Giftos Decl. ¶ 4; Centers for Disease Control and
3

Case 1:20-cv-00890-RC Document 5 Filed 04/02/20 Page 12 of 38

Prevention, Coronavirus Disease 2019 (COVID-19), How it Spreads,

https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html (last visited Apr. 1,

2020). The virus can be spread by asymptomatic individuals, and scientists estimate that the

average infected person spreads the disease to between two and four others. See Giftos Decl. ¶ 22;

Jenny Gross & Mariel Padilla, From Flattening the Curve to Pandemic: A Coronavirus Glosssary,

N.Y. Times (Mar. 18, 2020), https://www.nytimes.com/2020/03/18/us/coronavirus-terms-

glossary.html. COVID-19 is also highly fatal; according to the CDC, the disease has an overall

case fatality rate of between 1.8-3.4%, many times more deadly than the seasonal flu. Compare

Centers for Disease Control and Prevention, Morbidity and Mortality Weekly Report (MMWR),

Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) United States,

February

12-March

16,

2020,

(Mar.

26,

2020),

https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm with Centers for Disease Control and

Prevention, Influenza (Flu), Past Seasons, Table 1: Estimated Influenza Disease Burden by

Season — United States 2010-11 through 2018-19 Influenza Seasons (Jan. 9, 2020),

https://www.cdc.gov/flu/about/burden/past-seasons.html. The virus is particularly dangerous for

the elderly and those with underlying health conditions, but is capable of killing or causing serious

illness in healthy, young adults as well. Ex. 1, Giftos Decl. ¶ 13; Kailyn Brown et al., A 25-year-

old pharmacy tech dies from coronavirus. It’s an urgent warning for young people, L.A. TIMES

(Mar. 30, 2020), https://www.latimes.com/california/story/2020-03-30/25-year-old-dies-

coronavirus-warning.

As a consequence, the primary focus of the global community is on preventing the spread

of the virus. Ex. 1, Giftos Decl. ¶ 8. The Centers for Disease Control and Prevention (“CDC”)

and other public health experts have advised that the best method to limit transmission of the virus

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Case 1:20-cv-00890-RC Document 5 Filed 04/02/20 Page 13 of 38
is to practice “social distancing.” Id. Health experts recommend a minimum of six feet between people, limited contact, avoiding group settings, and meticulous personal hygiene. Id. These practices have also been strongly recommended to slow the rate of COVID-19 infections so that hospitals have the resources to address infected individuals with urgent medical needs. Id. II. The Virus Poses Particular Risks in the Correctional Environment
Custodial living spaces, such as prisons, jails, and halfway houses, present particularly serious risks related to COVID-19. See Ex. 1, Giftos Decl. ¶ 15-40. Unable to comply with the social distancing guidelines discussed above because of their confinement, incarcerated individuals are more vulnerable to contracting the virus because they live with multiple people in close quarters, are regularly required or allowed to inhabit communal spaces for eating and bathing, and are nearly always in close contact with other people. Id. In addition, a large number of incarcerated people live with chronic, often untreated illnesses, making them particularly vulnerable to infectious diseases. Id. The vulnerability of the incarcerated population compounds the risk to the public health because correctional officers and other staff are coming into and out of the prison and therefore can carry to the outside world any diseases that festered inside. Id. ¶¶ 22-23. Recognizing the heightened risks to this population, the CDC has issued specific guidelines for mitigating COVID-19 in correctional facilities, recommending social distancing and specific hygiene practices for people in custody. Giftos Decl. ¶ 9-11.
The risk the disease poses in detention settings is apparent in the dozens of correctional facilities across the country that have reported accelerating outbreaks of the virus within their walls. For example, as of March 30, 2020, 167 prisoners and 137 staff in New York City jails had tested positive for COVID-19. See Jan Ramsen & Alan Feuer, ‘We’re Left for Dead’: Fears of Virus Catastrophe at Rikers Jail, N.Y. Times (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html. In Cook
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County, Illinois, the number of known detainees with COVID-19 went from two to 89 in the span of just six days. See Sam Kelly, Sheriff announces 51 new coronavirus cases at Cook County Jail, raising total to 89, CHI. SUN TIMES (Mar. 28, 2020), https://chicago.suntimes.com/coronavirus/2020/3/28/21198407/cook-county-jail-coronaviruscovid-19-cases-inmates-89. And, recently, an outbreak at a low-security federal facility in Louisiana led to the death of a 49-year-old prisoner, the admission of a prison guard into the intensive care unit, and positive tests for 30 additional prisoners and staff. See Kimberly Kindy, An explosion of coronavirus cases cripples a federal prison in Louisiana, WASH. POST (Mar. 29, 2020), https://www.washingtonpost.com/national/an-explosion-of-coronavirus-cases-cripples-afederal-prison-in-louisiana/2020/03/29/75a465c0-71d5-11ea-85cb-8670579b863d_story.html. Dozens more are now in quarantine. See id.
Washington, D.C.’s detention facilities are by no means immune from the disease. Giftos Decl. ¶7. Cases in the Washington, D.C. region have surged in recent days, increasing the risk that the virus will spread through our detention facilities. See D.C., Md. & Va. Infographic, Known cases in the region, WASH. POST, https://www.washingtonpost.com/graphics/local/dc-marylandvirginia-coronavirus-cases/?itid=sf_local (showing that cases in Washington D.C., Maryland, and Virginia have surged from zero cases at the beginning of March to over 4,062 cases by April 1, 2020 and that 82 people in the region have died from the disease) (last visited Apr. 1, 2020). Indeed, as of March 31, 2020, seven residents and one staff personnel at DC jails had tested positive for the virus and an additional 194 were being held in isolation due to potential exposure. See Government of District of Columbia, Public Safety Agency COVID-19 Case Data: Department of Corrections (Mar. 30, 2020), https://coronavirus.dc.gov/page/public-safetyagency-covid-19-case-data. This month, a marshal at the D.C. Superior Court tested positive for
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Case 1:20-cv-00890-RC Document 5 Filed 04/02/20 Page 15 of 38
the virus. This marshal had access to several cell blocks at the D.C. Jail and was assigned to work in two D.C. busy courtrooms where dozens of defendants, including juveniles, have their arraignments. See Jack Moore, Coronavirus: Maryland announces 1st Covid-19-related death as region sees jump in new cases, WTOP NEWS (Mar. 18, 2020), https://wtop.com/coronavirus/2020/03/coronavirus-updates-dc-maryland-virginia/. The situation has become so dire that the union representing correction officers at the D.C. Jail unanimously voted “no confidence” in D.C. Jail leadership for their handling of COVID-19. See Sophie Kaplan, Union vote ‘no confidence’ in D.C. Jail leaders for handling of Covid-19, WASH. TIMES (Mar. 20, 2020), https://www.washingtontimes.com/news/2020/mar/20/union-votes-no-confidence-dc-jailleaders-handling/ (“The union representing corrections officers at the D.C. Jail unanimously voted ‘no confidence’ in the jail’s leadership for ‘guaranteeing and accelerating the rampant spread of COVID-19’ after 50 inmates came in contact with a positive case of the coronavirus.”).
The District of Columbia Government recognizes the threat of COVID-19 and Mayor Muriel Bowser has issued increasingly restrictive executive orders. The Mayor based her actions on “the increasing number of confirmed cases of COVID-19 within Washington, DC, and throughout the metropolitan Washington region.” Mayor Bowser Orders Closure of Non-Essential Businesses, DC.gov (Mar. 24, 2020), https://coronavirus.dc.gov/release/mayor-bowser-ordersclosure-non-essential-businesses. She found that extraordinary measures were necessary because: “Medical and public health experts agree that COVID-19 is easily transmitted and it is essential that its spread be slowed to protect the ability of public and private health care providers to handle the expected influx of ill patients and safeguard public health and safety . . . Scientific evidence and public health practices show that the most effective approach to slowing the community transmission of communicable diseases like COVID-19 is through limiting public activities and
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engaging in social distancing. Id. Based on these findings, she banned public gatherings and ordered people to remain in their homes.
Indeed, in the COVID-19 Response Emergency Amendment Act of 2020, the D.C. Council authorized the Department of Corrections to provide unlimited additional “good time” to people serving time at the D.C. Jail for misdemeanors, “to effectuate the immediate release of persons sentenced for misdemeanors.” 67 D.C. Reg. 3106 (March 20, 2020) (emphasis added). If people still in the Jail should be released, it logically follows that similarly situated people at the halfway houses should be released as well. III. The Conditions at Hope Village
Hope Village contracts with both the Federal Bureau of Prisons (“BOP”) and the Washington, D.C. Department of Corrections (“DOC”). See Department of Corrections: Correction Detention Facility, DC.gov, https://doc.dc.gov/page/correctional-facilities (last visited Mar. 31, 2020). It is contracted to provide housing, educational opportunities, and other programming services to men in BOP custody who are currently serving the tail end of their federal sentences, as well as pre-trial individuals and those sentenced to misdemeanors currently in DOC custody. Id.; Ex. 2, Declaration of Thurman Williams (“Ex. 2, Williams Decl.”) ¶ 3; Ex. 3, Declaration of Ronald Ian Boatright (“Ex. 3, Boatright Decl.”) ¶ 3; Ex. 4, Declaration of Anthony Antonio Pleasant (“Ex. 4, Pleasant Decl.”) ¶ 3. The men confined to Hope Village are in the lowest level of custody status. Until March 20, 2020, when the facility was placed on lockdown, the men who reside at Hope Village were all on work release, meaning they were typically free to leave the facility during the day to attend jobs. Ex. 3, Boatright Decl. ¶ 7. All those in BOP custody have scheduled release dates within months. See, e.g. Ex. 2, Williams Dec. ¶ 3; Ex. 3, Boatright Decl. ¶ 3; Ex. 4, Pleasant Decl. ¶ 3.
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As in other detention facilities, it is obvious that the kinds of social distancing measures that have been a hallmark of the United States’ COVID-19 prevention and mitigation efforts are simply not possible at Hope Village. The facility houses approximately 300 individuals in housing blocks of approximately 70 residents, who share small two-bedroom apartments. Ex. 3, Boatright Decl. ¶ 5; Ex. 2, Williams Decl. ¶ 4.; Compl. ¶ 2. Each bedroom houses four prisoners who sleep in bunk beds roughly three feet apart. Ex. 2, Williams Decl. ¶ 5. Each of these apartments has just one bathroom that is shared among all the men assigned to that apartment. Ex. 1, Giftos Decl. ¶ 25; Ex. 4, Pleasant Decl. ¶ 11. Despite these close quarters and the fact that prisoners are responsible for cleaning their apartments and common areas, prisoners in Hope Village have limited access to hot water, soap, disinfectants, gloves, and masks to protect themselves and are prohibited from having Lysol and alcohol-based cleaning supplies, including hand sanitizer. Ex. 2, Williams Decl. ¶ 17; Ex. 3, Boatright Decl. ¶ 18. Prisoners report that the cleaning supplies they have are often watered down. Ex. 3, Boatright Decl. ¶ 18. Hope Village requires that prisoners purchase their own hygiene supplies, but there is no commissary at the facility. Ex. 1, Giftos Decl. ¶ 26. And because the facility went on lockdown on March 20, 2020, which precludes individuals from purchasing products on their own, prisoners are forced to rely on family, if they have family in the area, to drop off such supplies. Ex. 1, Giftos Decl. ¶ 27; Ex. 3, Boatright Decl. ¶ 18.
Hope Village’s dining facilities preclude the CDC-recommended social distancing, and increase transmission opportunities. Giftos Decl. ¶ 31. Prisoners at Hope Village eat meals in large groups of approximately 25-30 individuals, with five people surrounding tables approximately five-feet in diameter. Ex. 1, Giftos Decl. ¶ 31; Ex. 2, Williams Decl. ¶ 13; Ex. 3, Boatright Decl. ¶ 13; Ex. 4, Pleasant Decl. ¶ 15. Silverware is kept in an open communal box, which makes it impossible for prisoners to collect their utensils without touching utensils that other prisoners will
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Case 1:20-cv-00890-RC Document 5 Filed 04/02/20 Page 18 of 38
later use. Ex. 2, Williams Decl. ¶ 14; Ex. 3, Boatright Decl. ¶ 14; Ex. 1, Giftos Decl. ¶ 32. There is no sink in the dining area, so prisoners have no means to wash their hands before they eat or before they touch dining surfaces and eating utensils. Ex. 1, Giftos Decl. ¶¶ 32-33; Ex. 2, Williams Decl. ¶ 11; Ex. 3, Boatright Decl. ¶ 12; Ex. 4, Pleasant Decl. ¶ 14. Instead, prisoners are required to wash their hands in their own apartments and then walk through communal hallways to the dining area, which is located in a separate building, touching surfaces and opening doors that were previously touched by many other prisoners. Ex. 2, Williams Decl. ¶ 11; Ex. 3, Boatright Decl. ¶ 12; Ex. 1, Giftos Decl. ¶ 33.
Defendants have failed to provide even the most basic medical care during this health emergency. Hope Village has not provided prompt medical attention and testing to those with COVID-19 symptoms, nor does it have any on-site medical staff. Ex. 2, Williams Decl. ¶ 9; Ex. 3, Boatright Decl. ¶ 10; Ex. 1, Giftos Decl. ¶ 37. When Hope Village suspects someone may have contracted COVID-19, the facility places that person in isolation by assigning the person to an apartment without roommates. Ex. 4, Pleasant Decl. ¶¶ 4-5. These individuals live alone in an apartment but share hallways with the rest of the men living in the building. Their food trays are brought to them by staff, and they place these trays into shared hallways after eating. Ex. 4, Pleasant Decl. ¶ 5; Ex. 1, Giftos Decl. ¶ 34. These quarantined individuals have at times shared hallways and communal areas and resources, including vending machines, with the rest of the Hope Village population. Id.
Crowding and hygiene concerns were amplified on March 20, 2020, when Hope Village issued a shelter-in-place order, requiring all people in custody to stay in the facility at all times. Ex. 2, Williams Decl. ¶ 6; Ex. 3, Boatright Decl. ¶ 18; Ex. 1, Giftos Decl. ¶ 24. However staff are still permitted to travel in and out of the facility, and Hope Village does not screen staff for
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Case 1:20-cv-00890-RC Document 5 Filed 04/02/20 Page 19 of 38
symptoms before permitting reentry. Ex. 1, Giftos Decl. ¶ 23. The facility also continues to accept additional prisoners, increasing the risk that the disease will enter Hope Village and spread to others. Ex. 1, Giftos Decl. ¶ 22; Ex. 2, Williams Decl. ¶ 19.
The conditions at Hope Village make the threat of COVID-19 spread at Hope Village substantial and urgent. Increasing concerns about Hope Village’s response to the COVID-19 outbreak have been raised by journalists, advocacy groups, and public officials. See, e.g., Jenny Gathright, Men In D.C.’s Federal Halfway House Say They Are Stuck Inside Without Essential Supplies, WAMU 88.5 American University Radio (Mar. 25, 2020), https://wamu.org/story/20/03/25/men-in-d-c-s-federal-halfway-house-say-they-are-stuck-insidewithout-essential-supplies/. Complaints about conditions at the halfway house have become so widespread in recent days, in fact, that Congresswoman Eleanor Holmes Norton wrote an open letter to the BOP, expressing “urgent concern” about conditions at the facility. These concerns include that the virus may already be spreading within its walls, that men were unable to practice social distancing, and that residents were being deprived of hand-sanitizer and other hygiene products. See March 27, 2020 Letter in Press Release: Norton Calls on Federal Bureau of Prisons to Ensure Hope Village Halfway House Residents Safe During the Coronavirus, The DC Line (Mar. 27. 2020), https://thedcline.org/2020/03/27/press-release-norton-calls-on-federal-bureauof-prisons-to-ensure-hope-village-halfway-house-residents-safe-during-the-coronavirus/. It has become clear that something must be done to reduce the population and implement all medicallynecessary precautions at Hope Village, both to protect prisoners and staff, and to protect our wider communities.
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LEGAL STANDARD A party seeking either a temporary restraining order or a preliminary injunction “must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2009); Dunlap v. Presidential Advisory Comm'n on Election Integrity, 319 F. Supp. 3d 70, 81 (D.D.C. 2018) (“An application for a TRO is analyzed using factors applicable to preliminary injunctive relief.”), rev’d on other grounds, 944 F.3d 945 (D.C. Cir. 2019). Courts in the District of Columbia may evaluate these four factors on a “sliding scale” framework, meaning that “[i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.” Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009). Courts have broad power to fashion equitable remedies to address constitutional violations in prisons, see Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978), and “[w]hen necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011). Courts “must not shrink from their obligation to ‘enforce the constitutional rights of all “persons,” including prisoners’ [and] . . . may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.” Id. (citation omitted). “When an action pending in a United States court seeks release from what is claimed to be illegal detention, the court's jurisdiction to order release as a final disposition of the action includes an inherent power to grant relief pendente lite, to grant bail or release, pending determination of the merits.” Baker v. Sard, 420 F.2d 1342, 1343 (D.C. Cir. 1969). This is true when a habeas
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Case 1:20-cv-00890-RC Document 5 Filed 04/02/20 Page 21 of 38
petitioner “has shown that exceptional circumstances exist which make the grant of bail necessary to effectuate the habeas remedy.” Abdullah v. Bush, 945 F. Supp. 2d 64, 67 (D.D.C. 2013), aff’d sub nom. Abdullah v. Obama, 753 F.3d 193 (D.C. Cir. 2014).
ARGUMENT Prison conditions that expose people to a serious risk of contracting an infectious disease are constitutionally intolerable. Because there is no vaccine or cure for COVID-19, the only way to protect the Plaintiffs’ constitutional rights is to create an environment that allows the men housed at Hope Village to practice those guidelines laid out by the CDC, including proper hygiene and social distancing. Permitting those prisoners who have available home confinement options to leave the facility will not only lower their chances of contracting the illness, but will also ease crowding at the halfway house and reduce the risks to other prisoners, staff, and the larger community. Immediate injunctive relief is necessary because the danger at issue—exposure to a virus capable of causing prolonged illness and potentially death—is the quintessential irreparable harm. There is also an overwhelming public interest in limiting the spread of COVID-19, both to minimize further infections and to reduce strain on our overwhelmed health systems. And, in light of the global COVID-19 pandemic, the balance of equities weighs heavily in favor of requiring Hope Village to create a safe environment by permitting men with viable options for home confinement to self-isolate. IV. Plaintiffs are Likely to Succeed on the Merits of Establishing a Constitutional Violation and Negligence. Residents at Hope Village are likely to succeed on the merits against all Defendants. Specifically, Plaintiffs are likely to: (1) establish a violation of their Eighth Amendment rights by the Federal Bureau of Prisons and the D.C. Department of Corrections through conditions of
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confinement that expose Plaintiffs to the serious risks associated with COVID-19, and (2) to establish negligence by Hope Village in failing to exercise due care to prevent the spread of COVID-19 under the circumstances.
A. The Governmental Defendants’ Deliberate Indifference to Plaintiffs’ Health and Safety Violates Plaintiffs’ Eighth Amendment Rights.
To prevail on a claim that conditions of confinement violate the Eighth Amendment, a plaintiff must meet two requirements: (1) the deprivation alleged must objectively be “‘sufficiently serious,’” and (2) the “prison official must have a ‘sufficiently culpable state of mind,’” such as “deliberate indifference” to the prisoner’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations omitted).
Here, the risks posed by COVID-19 are unquestionably “serious,” and Defendants are being deliberately indifferent to that risk. Defendants therefore violated Plaintiffs’ constitutional rights by confining them to living conditions that enhance exposure to a serious infectious disease with potentially life-threatening consequences. These inhumane conditions warrant a Court order requiring Plaintiffs’ immediate release from Hope Village.
1. Plaintiffs’ conditions of confinement are sufficiently serious as to pose a substantial risk of serious harm by exposing them to an infectious disease.
A substantial risk of serious harm is one that jeopardizes the plaintiffs’ health or safety. See Caldwell v. Dist. of Columbia, 201 F. Supp. 2d 27, 35 (D.D.C. 2001). The risk of harm to plaintiffs’ health or safety need not yet have been realized; the Eighth Amendment also protects against likely future harms. See Helling v. McKinney, 509 U.S. 25, 33 (1993) (stating “[i]t would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them”). Indeed, one such future harm explicitly identified by the Supreme Court was overcrowding in situations where inmates are
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at risk of exposure to a serious, communicable disease, “even though the possible infection might not affect all of those exposed.” 509 U.S. at 33 (citing Hutto, 437 U.S. at 682 (1978)). In such settings, the conditions of confinement are “sure or very likely to cause serious illness and needless suffering the next week or month or year,” and thus fall under Eighth Amendment protection. Id.
Here, the government is violating the Eighth Amendment by crowding prisoners into Hope Village despite the serious risk posed by COVID-19. Plaintiffs are confined in conditions where it is impossible to achieve adequate CDC-mandated social distancing, thus dramatically increasing the likelihood they will contract COVID-19 and fall ill. Meals are provided at packed tables placed close together, where the men are required to sit shoulder-to-shoulder. Ex. 1, Giftos Decl. ¶ 31; Ex. 2, Williams Decl. ¶ 13; Boatright Decl. ¶ 13; Ex. 4, Pleasant Decl. ¶ 15. Utensils are placed in a communal container, which all prisoners must reach into without provided proper sanitizer or access to soap beforehand. Ex. 2, Williams Decl. ¶ 14; Ex. 3, Boatright Decl. ¶ 14; Ex. 1, Giftos Decl. ¶ 32. Given the CDC’s guidance on social distancing, these conditions of confinement, which are poised to become worse as Defendants continue to accept new residents into Hope Village, clearly place Plaintiffs at substantial risk of serious harm.
Substantial risk of serious harm also stems from Plaintiffs’ confinement in unhygienic conditions. Plaintiffs do not have access to hand sanitizer or disinfectants, as Hope Village prohibits residents from possessing these items due to “safety concerns.” Ex. 2, Williams Decl. ¶ 17; Ex. 3, Boatright Decl. ¶ 18; see also Ex. 1, Giftos Decl. ¶¶ 27-28; When prisoners are forced to carry out cleaning duties, they are not given any protective gear, and thus are being exposed to bodily fluids. Ex. 2, Williams Decl. ¶ 15; Ex. 3, Boatright Decl. ¶ 17. The communal dining area is not sanitized between uses. Ex. 2, Williams Decl. ¶ 12; Ex. 4, Pleasant ¶ 17. Prisoners have communal bathrooms with limited sinks and showers, which are not cleaned with frequency. Ex.
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2, Williams Decl. ¶ 5; Ex. 3, Boatright Decl. ¶ 6; Ex. 1, Giftos Decl. ¶¶ 25, 27. Prisoners have no access to a water fountain or source of water, other than to use the bathroom sink or purchase overpriced water from a vending machine, as Defendants refuse to allow water from outside of Hope Village onto the premises. Ex. 3, Boatright Decl. ¶ 21; Ex. 2, Williams Decl. ¶18. It is impossible to prevent the spread of COVID-19 under such conditions. Ex. 1, Giftos Decl. ¶ 4041. Indeed “[c]ongregate settings like Hope Village allow for rapid spread of infectious diseases that are transmitted person to person.” Id. “When people live in close, crowded quarters and must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater.” Id. Plaintiffs’ current conditions of confinement at the Hope Village facilities therefore pose substantial risk of serious harm that jeopardizes the Plaintiffs’ health or safety.
2. The governmental defendants continue to show deliberate indifference to the substantial risk of harm that COVID-19 poses to Plaintiffs.
A prison official is “deliberately indifferent” if he or she “‘knows of and disregards an excessive risk to inmate health or safety.’” Farmer v. Moritsugu, 163 F.3d 610, 614 (D.C. Cir. 1998) (quoting Brennan, 511 U.S. at 837). To demonstrate deliberate indifference, “it is enough that the official acted or failed to act despite his knowledge of a substantial risk of harm.” Brennan, 511 U.S. at 842; see also Jones v. Hurwitz, 324 F. Supp. 3d 97, 100 (D.D.C. 2018). “Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.” Brennan, 511 U.S. at 842. Prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease even if the complaining prisoner shows no serious current symptoms. Helling, 509 U.S. at 33.
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While the obviousness of the risk itself is enough to allow a factfinder to conclude that the BOP and DOC know of the substantial risk of COVID-19, Farmer, 511 U.S. at 842, these Defendants were in fact aware of the serious risks that COVID-19 poses to detained populations, including to those held in halfway houses. There has been widespread news coverage regarding the risks and rapid spread of COVID-19 in detention facilities across the country. See supra Factual Background. Indeed, both DOC and BOP have been dealing with the proliferation of COVID-19 in their own facilities, including an outbreak in Louisiana that led to the death of a federal prisoner. See Factual Background. The CDC has released guidance specific to addressing the risks of COVID-19 in jails, and BOP itself provided specific Residential Reentry Centers regarding steps to be taken to modify operations in light of the current pandemic. See Memorandum from Jon Gustin, Administrator, Residential Reentry Management Branch, to All RRC Contract Providers, Coronavirus (COVID-19) Precautions/Modified Operations for Residential Reentry Centers (Mar. 24, 2020), https://www.bop.gov/coronavirus/docs/memo_modified_rrc_operations_20200324.pdf.
Further, BOP and DOC are clearly aware of the unhygienic and crowded conditions at Hope Village and, as the entities responsible for placing individuals at Hope Village, are aware that new prisoners are continuing to be sent to the facility. Information regarding the inadequate conditions at Hope Village has been widely reported by news outlets. See, e.g., Jenny Gathright, Men in D.C.’s Federal Halfway House Say They Are Stuck Inside Without Essential Supplies, WAMU (Mar. 25, 2020), https://wamu.org/story/20/03/25/men-in-d-c-s-federal-halfway-housesay-they-are-stuck-inside-without-essential-supplies/; Justin Moyer and Keith Alexander, D.C. Council member calls on Federal Bureau of Prisons to address coronavirus concerns at halfway house, Washington Post (Mar. 26, 2020), https://www.washingtonpost.com/local/dc-council-
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member-calls-on-federal-bureau-of-prisons-to-address-coronavirus-concerns-at-halfwayhouse/2020/03/26/d73c0f56-6fa8-11ea-b148-e4ce3fbd85b5_story.html. The District of Columbia Corrections Information Council, a governmental entity charged with oversight activities for the D.C. DOC, also released a report “regarding their preparations and response to the novel coronavirus outbreak.” Re: CIC Visit to Hop Village on Thursday, March 26, 2020, DC.gov (Mar. 27, 2020), https://cic.dc.gov/node/1469876. According to the CIC report, the CIC’s staff had spoken both with Hope Village executives and program staff, as well as the BOP Residential ReEntry Manager. Id. It stated that the DOC had also conducted its own independent investigation into Hope Village. Id. Congresswoman Eleanor Holmes Norton also sent a letter to the BOP expressing concern about the conditions at Hope Village. Press Release, Eleanor Holmes Norton, Norton Urges Department of Justice to Apply First Step Act to D.C. Inmates in Federal Bureau of Prisons, as Congress Intended, in Light of Coronavirus (Mar. 22, 2020), https://norton.house.gov/media-center/press-releases/norton-urges-department-of-justice-toapply-first-step-act-to-dc-inmates. Furthermore, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs drafted a letter to the Administrative Director of Hope Village, the Director of the DOC, and the BOP General Counsel raising concern about these same conditions. Ltr. from Lyndsay Niles, Washington Lawyers’ Committee for Civil Rights and Urban Affairs, to Joseph Wilmer, Administrative Director, Hope Village (Mar. 25, 2020), https://www.washlaw.org/wp-content/uploads/2020/03/2020.03.25.Letter-to-Hope-Villageregarding-Coronavirus.pdf. However, in the face of the knowledge that conditions at Hope Village are inadequate to protect the prisoners from COVID-19, Hope Village spokesperson Phinis Jones reported to the media outlet WAMU that “[t]he [Federal Bureau of Prisons] has decided that it is not in the best interests of the community or the men for them to leave the facility.” Jenny
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Gathright, Men in D.C.’s Federal Halfway House Say They Are Stuck Inside Without Essential Supplies, WAMU (Mar. 25, 2020), https://wamu.org/story/20/03/25/men-in-d-c-s-federalhalfway-house-say-they-are-stuck-inside-without-essential-supplies/. Therefore, it is clear that despite Defendants’ awareness of the serious risk that COVID-19 poses to Plaintiffs and their knowledge of the conditions at Hope Village, Defendants failed to address these risks. Indeed, Defendants failed to remedy overpopulation and improve sanitary conditions to the levels necessary to protect inmates health and safety.
The deliberate indifference is especially apparent given that there is little or no penological or public safety interest in keeping the plaintiffs in secure custody. Prior to the lockdown, they were in the lowest possible custody level, left and entered the facility daily, and were no more than months from release. Many have homes waiting for them where they can shelter in place in an environment conducive to their health and to public health. Ex. 3, Boatright Decl. ¶ 3; Ex. 2, Williams Decl. ¶ 3.
There is sufficient evidence that COVID-19 poses a serious risk and that Defendants are aware of the risk both from direct notice and from circumstantial evidence. BOP and DOC’s failure to release prisoners from these inhumane conditions of confinement, and unwillingness to ensure that Hope Village takes even the bare minimum action to improve those conditions, shows deliberate indifference to that risk. It is structurally impossible for Hope Village to continue housing all of the current prisoners in a way that adequately protects prisoners from serious harm. Because there is overwhelming evidence that BOP and DOC knew that Hope Village has failed to take the necessary steps to protect Plaintiffs, and refused to release them in spite of their lowest custody status, Plaintiffs will likely prevail on the merits.
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B. Hope Village has Breached its Duty of Care Owed to the Prisoners, Resulting in Harm.
Plaintiffs are also likely to establish negligence by Hope Village in Hope Village’s failing to exercise due care to prevent the spread of COVID-19 under the circumstances. Under District of Columbia law, negligence requires the plaintiff to prove: “(1) the defendant owed a duty [of care] to the plaintiff, (2) the defendant breached its duty, (3) and that breach was the proximate cause of (4) damages sustained by the plaintiff.” Morris v. Corr. Corp. of Am., 75 F. Supp. 3d 457, 459 (D.D.C. 2014) (alteration in original) (quoting Busby v. Capital One, N.A., 772 F. Supp. 2d 268, 283 (D.D.C. 2011)).
Defendants owed Plaintiffs a duty of care as custodians. “One who is required by law to take . . . custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a duty [to take reasonable action to protect them against unreasonable risk of physical harm] to the other.” Restatement (Second) of Torts § 314A (1965); Feirson v. D.C., 362 F. Supp. 2d 244, 246 (D.D.C. 2005), aff'd, 506 F.3d 1063 (D.C. Cir. 2007) (citing Restatement (Second) of Torts § 314A as good law). Here, as the operators of a halfway house, Hope Village has taken custody of Plaintiffs such as to deprive prisoners of their normal opportunities for protection. Further, Defendants prohibit Plaintiffs from residing elsewhere and refuse to allow Plaintiffs to leave their facility. Ex. 1, Giftos Decl. ¶ 22; Ex. 3, Boatright Decl. ¶ 7; Ex. 2, Williams Decl. ¶ 6. Hope Village therefore owes a duty of care to Plaintiffs to take reasonable action to protect Plaintiffs against unreasonable risk of physical harm. In this case, that harm is the risk of contracting COVID-19.
Hope Village is breaching this duty by continuously failing to take reasonable actions to stop the spread of COVID-19. A plaintiff can prove breach by showing that a defendant failed to properly maintain facilities or to correct a known dangerous condition. Morris, 75 F. Supp. 3d at
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459–60; Hickey v. Wash. Metro. Area Transit Auth., 360 F. Supp. 2d 60, 62 (D.D.C. 2004) (“the defendant may be liable if it had actual or constructive notice of a dangerous condition, but failed to correct or remove the danger.”). Hope Village has ample notice of the danger and of the steps necessary to prevent the spread of this serious illness. There has been constant news coverage and communications released by the CDC regarding the importance of social distancing and proper sanitary procedures in reducing the spread of COVID-19. See Centers for Disease Control and Prevention, Coronavirus (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/index.html (last visited Apr. 1, 2020). Residential Reentry Centers were also provided with specific guidance by the Bureau of Prisons regarding modified operations, see Memorandum from Jon Gustin, Administrator, Residential Reentry Management Branch, to All RRC Contract Providers, Coronavirus (COVID-19) Precautions/Modified Operations for Residential Reentry Centers (Mar. 24, 2020), https://www.bop.gov/coronavirus/docs/memo_modified_rrc_operations_20200324.pdf, so that they could implement plans similar to those of the BOP. Hope Village has not done so.
Rather than take reasonable precautions to stop the spread of a potentially life-threatening illness to their residents, Hope Village continues to defy the advice and guidance given by the medical community and the CDC. Plaintiffs are confined in conditions without adequate CDCmandated social distancing, dramatically increasing the likelihood they will contract COVID-19. Ex. 1, Giftos Decl. ¶ 20. Plaintiffs and declarants describe overcrowded conditions. Ex. 3, Boatright Decl. ¶ 6, 11, 13; Ex. 4, Pleasant Decl. ¶¶ 12, 15-16; Ex. 2, Williams Decl. ¶¶ 5, 13-14; Ex. 1, Giftos Decl. ¶¶ 25, 31. Residents live in small spaces with between four and eight prisoners in each apartment. Ex. 3, Boatright Decl. ¶ 5; Ex. 4, Pleasant Decl. ¶ 11; Ex. 2, Williams Decl. ¶ 4; Ex. 1, Giftos Decl. ¶ 25. They also eat meals in crowded dining halls. Ex. 3, Boatright Decl. ¶¶
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13-14; Ex. 4, Pleasant Decl. ¶ 15; Ex. 2, Williams Decl. ¶¶ 13-14; Ex. 1, Giftos Decl. ¶ 31-32. Hope Village has not educated residents on ways to mitigate the risk of contracting COVID-19. Ex. 1, Giftos Decl. ¶ 36; Ex. 3, Boatright Decl. ¶ 15 . Nor has it implemented screening for staff or residents. Ex. 3, Boatright Decl. ¶ 9; Ex. 2, Williams Decl. ¶ 8; Ex. 1, Giftos Decl. ¶¶ 22-23 Instead, Hope Village prevents residents from accessing proper sanitation products and hand sanitizer. Ex. 3, Boatright Decl. ¶¶ 16,18-19; Ex. 2, Williams Decl. ¶ 17; Ex. 1, Giftos Decl. ¶ 27. By blatantly disregarding the advice and guidance of the medical community, Hope Village is continually breaching the duty of care it owes to Plaintiffs.
Hope Village’s breach is also the proximate cause of any damages the Plaintiff will sustain—namely, the contraction of COVID-19. The ease of transmission of COVID-19 is widespread knowledge. See Ex. 1, Giftos Decl. ¶ 4; Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): How to Protect Yourself, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (last visited Mar. 30, 2020). It is foreseeable that by confining prisoners in facilities without sufficient room for social distancing, and without access to proper sanitation, that there is a high likelihood of contracting COVID-19. The short and long-term effects of contracting COVID-19 are also highly publicized.
Injunctive relief is the only effective remedy to protect prisoners at Hope Village from the facility’s negligent behavior. “In negligence actions where irreparable injury is threatened, a court may act by injunction to prevent harm before it occurs.” See Women Prisoners of D.C. Dep't of Corr. v. D.C., 899 F. Supp. 659, 666 (D.D.C. 1995). Whether injunctive relief is appropriate to protect against a threatened tort depends on a number of factors, including “the relative adequacy to the plaintiff of an injunction and of the other remedies, plaintiff's laches or unclean hands, the
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relative hardship likely to result to defendant if an injunction should be granted and to plaintiff if it should be denied, the interests of third persons and of the public and the practicability of framing and enforcing the order of judgment.” Id. It is clear that the only adequate remedy to protect prisoners at Hope Village from the very real threat of contracting COVID-19 is to require that Hope Village implement medically-necessary precautions and create an environment that permits social distancing. Monetary damages are insufficient and would do nothing to shield individuals at Hope Village from contracting the potentially-deadly virus. The burden on Hope Village if an injunction is granted far less that the hardships that prisoners and staff will face if injunctive relief is denied and COVID-10 spreads within the facility’s walls. Further, there is a strong public interest in preventing Hope Village from contributing to the spread of COVID-19 within the facility, as any spread of the disease at Hope Village would undoubtedly spread within the broader community. It is clear that the threatened harm at issue is “sufficient[ly] serious[] and imminen[t] to justify coercive relief.” Id. Infection With a Lethal Virus That Lacks Any Vaccine or Cure Constitutes Irreparable Harm.
Plaintiffs will suffer irreparable harm absent an injunction. To be irreparable, a harm must be “‘certain and great,’ ‘actual and not theoretical,’ and ‘of such imminence that there is a clear and present need for equitable relief,’” as well as “‘beyond remediation,’ meaning: [mere] injuries . . . in terms of money, time, and energy necessarily expended in the absence of a stay are not enough.” Fraternal Order of Police Library of Congress Labor Comm. v. Library of Congress, 639 F. Supp. 2d 20, 24 (D.D.C. 2009) (citation omitted).
Cases of COVID-19 are increasing exponentially, both regionally and across the United States. Ex. 1, Giftos Decl. ¶¶ 4-7. The rapid spread of COVID-19 through the nation’s correctional facilities, and the life-threatening nature of the disease, is by no means theoretical. See supra
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Factual Background; Ex. 1, Giftos Decl. ¶ 7. As stated, cases in the Washington, D.C. region have surged in recent days, increasing the risk that the virus will spread through our detention facilities. Id. Given the deadliness of the disease, the vulnerability of prisoner populations, and the country’s overburdened medical system, there is a real possibility that absent immediate relief from the Court, Plaintiffs will be infected with COVID-19, and possibly die or suffer long-term health consequences as a result. Ex. 1, Giftos Decl. ¶¶ 41, 44.
The Constitution does not require that Plaintiffs suffer the grave consequences of COVID19 infection before they are entitled to injunctive relief. As the Supreme Court has explained, “a prison inmate . . . could successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery.” Helling, 509 U.S. at 33. Irreparable harm is established where, as here, a preliminary injunction is necessary to preserve the health of someone in a detention setting. See, e.g., Jones v. Tex. Dep't of Criminal Justice, 880 F.3d 756, 759-60 (5th Cir. 2018) (finding a substantial threat of irreparable injury where prison officials failed to provide prisoner with precribed diabetic diet, thus exposing him to serious health risks). In fact, even the failure to test for a disease has been sufficient to support a finding of irreparable harm. See Boone v. Brown, No. Civ. 05-0750(AET), 2005 WL 2006997, at *14 (D.N.J. Aug. 22, 2005) (allegation of refusal to provide adequate testing for highly contagious infectious disease sufficient to demonstrate irreparable harm); Austin v. Pa. Dep’t of Corr., No. 90-7497, 1992 WL 277511, at *5, *7-8 (E.D. Pa. Sept. 29, 1992) (granting preliminary injunction for prison to develop testing and protocol for tuberculosis); see also Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (correctional officers have an affirmative obligation to protect prisoners from infectious disease).
In addition, plaintiffs have shown irreparable harm because, as demonstrated above, they face a violation of their constitutional rights. See Mills v. Dist. of Columbia, 571 F.3d 1304, 1312
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(D.C. Cir. 2009) (“It has long been established that the loss of constitutional freedoms, ‘for even minimal periods of time, unquestionably constitutes irreparable injury.’” (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion)). V. There is a Strong Public Interest in Minimizing the Spread of COVID-19 through
Social Distancing and Hygiene Practices that are Impossible at Hope Village There is strong public interest in minimizing the spread of COVID-19. Indeed the District of Columbia has issued a series of orders and declaration in recent days, including a stay-at-home order that prohibits people from leaving their residences except in very narrow circumstances. These orders and declarations have made clear that the District of Columbia shares this interest and that it is willing to minimize the spread of COVID-19 through radical social distancing measures. Ex. 1, Giftos Decl. ¶ 6. First, the disease is highly contagious and has no vaccine or cure, meaning that each new infection would almost certainly result in still more individuals becoming infected. See supra Factual Background; Ex. 1, Giftos Decl. ¶ 8. Healthcare professionals have agreed (nearly unanimously) that the most critical actions that can be taken are preventive measures such as self-isolating, maintaining a distance of six feet from other persons, and frequent disinfection. See supra Factual Background; Ex. 1, Giftos Decl. ¶ 8. These measures are simply not possible in the conditions at Hope Village, as detailed above. Ex. 1, Giftos Decl. ¶ 43. Even with an improvement in hygiene and sanitation to address the spread of COVID-19 in Hope Village, reducing the population at the facility is a necessary mitigation strategy. Id. ¶ 4144. And because staff at Hope Village are permitted to travel freely in and out of the facility, a contagion within Hope Village will almost certainly spread, via staff, to the surrounding communities. Id. ¶ 23. Second, there is a strong public interest in minimizing the spread of COVID-19 to help address the overwhelmed state of the U.S. medical system. This Court has recognized that “the
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burden on our health care system, and the concomitant burden on our national economy, of treating those suffering from … disease, is of enormous significance.” United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 988, 991 (D.D.C. 2006); id. at 990 (court considering the public interest in denying Defendants’ motion for stay of judgment finding Defendants liable under RICO). These are precisely the issues in the present case. Indeed, the governors of Virginia and Maryland have warned that regional hospitals could soon be overwhelmed with cases and that both states lack enough ventilators and other equipment to meet the expected surge. See Antonio Olivo, Ovetta Wiggins, & Fenit Nirappil, Virginia, Maryland governors warn that hospitals soon may be overwhelmed by surge in coronavirus cases, WASH. POST (Mar. 27, 2020), https://www.washingtonpost.com/local/washington-area-hospitals-prepare-for-surge-ofcoronavirus-patients-with-limited-supplies/2020/03/27/7c6c0304-7031-11ea-b148e4ce3fbd85b5_story.html. Failure to prevent the spread of the disease in a single correctional facility may contribute greatly to that outcome. See Chuk Goudie et. al., Illinois prisoners sick with COVID-19 “overwhelm” Joliet hospital, ABC CHIC. (Mar. 30, 2020), https://abc7chicago.com/coronavirus-illinois-chiciago-cases/6064085/ (reporting that infected inmates from the Stateville Correctional Center have “overwhelmed” the Saint Joseph Medical Center in Joliet, Illinois). It is accordingly strongly in the public interest to prevent or minimize the spread of the virus at Hope Village and help allow the medical system time to treat current patients and expand its capacity. VI. The Balance of Equities Favors an Improvement in Conditions in Hope Village,
Including Depopulation. The balance of equities weighs heavily in favor of requiring Hope Village to reduce its prisoner population and to take other measures to protect the health of its inmates against the COVID-19 threat. When deciding whether to grant injunctive relief, “courts must balance the
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competing claims of injury and consider the effect on each part of the granting or withholding of the requested relief.” Aracely R. v. Nielsen, 319 F. Supp. 3d 110, 156 (D.D.C. 2018) (citation omitted). Here, the interest in protecting individuals from serious physical harm outweighs monetary costs to government entities. See Harris v. Bd. of Supervisors, 366 F.3d 754, 766 (9th Cir. 2004). Plaintiffs’ interests in preventing or minimizing the odds of exposure to a deadly virus is essentially an interest in survival and the preservation of their lives. As stated, many of the men held at Hope Village have essentially completed their federal sentences and have been cleared for imminent release. See supra Factual Background. Some are set to be released to home confinement in a matter of weeks. See Ex. 4, Pleasant Decl. ¶ 3. Continuing to expose these men to conditions where they are likely to be infected, only to release them soon afterward, is not equitable—and is actually likely to contribute to the spread of the disease.
Defendants’ countervailing interest in continuing to hold men in these conditions is weak at best. In sharp contrast to Plaintiffs’ hardships, Defendants will merely be required to release to home confinement those individuals who have already been found by BOP to be eligible for imminent release, and to provide reasonable and basic sanitation in light of the spread of COVID19 to the remaining prisoners. Further, prior to the present lockdown, prisoners at Hope Village were permitted to travel freely to work each day, demonstrating that the BOP and DOC cannot possibly believe these individuals constitute a continued threat to the public at large.
Indeed, courts across the country have balanced these competing interests and determined that the most equitable solution to addressing the spread of COVID-19 in correctional facilities, and to protect prisoners and staff alike is, to order release on an emergency basis. This is true even in places where the disease has not yet spread, and for people who would not otherwise be permitted to reside in low-security facilities from which they may (under normal circumstances)
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come and go daily. See, e.g., United States v. Fellela, No. 3:19-cr-79 (JAM), 2020 U.S. Dist. LEXIS 49198 (D. Conn. Mar. 20, 2020) (ordering the release of a diabetic criminal defendant who was awaiting sentencing on federal charges, even though there had been no COVID-19 cases in the facility and the court credited the government’s representations about the precautions taken to prevent the spread of coronavirus); United States v. Stephens, No. 15-cr-95 (AJN), 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (reconsidering bail determination and releasing pretrial detainee; “[a]lthough there is not yet a known outbreak among the jail and prison populations, inmates may be at heightened risk of developing COVID-19 should an outbreak develop.”); Motion and Order Granting Emergency Mot. for Immediate Transfer to Home Confinement, United States v. Bell et al., No. 1:16-cr-00485-JKB (D. Md. Mar. 19, 2020), Dkt. Nos. 1726-27 (ordering that a woman held in a halfway house in Maryland be released to home confinement to serve the four-month remainder of her sentence outside the facility); Consent Order, In re Request to Commute or Suspend County Jail Sentence, Case No. 084230 (N.J.S.C. Mar. 22, 2020) (New Jersey Chief Justice ordering release of inmates serving a county jail sentence as a condition of probation or as a result of a municipal court conviction); Letter from Mike McGrath, Chief Justice, Supreme Court of Montana, to Montana Courts of Limited Jurisdiction Judges (Mar. 20, 2020), https://courts.mt.gov/Portals/189/virus/Ltr%20to%20COLJ%20Judges%20re%20COVID19%20032020.pdf?ver=2020-03-20-115517-333 (letter from the Chief Justice of the Supreme Court of Montana asking judges to “review [their] jail rosters and release, without bond, as many prisoners as you are able, especially those being held for non-violent offenses” because “[d]ue to the confines of [jail] facilities, it will be virtually impossible to contain the spread of the virus”); Temporary Restraining Order and Order to Show Cause at 10, Castillo v. Barr, No. 20-cv-605 (TJH) (C.D. Cal. Mar. 27, 2020), Dkt. No. 32 (ordering that petitioners be released from
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immigration detention in light of COVID-19 and noting “the risk of infection in immigration detention facilities – and jails – is particularly high”).
CLASS ALLEGATIONS The early stage of this litigation should not deter the Court from provisionally certifying the Plaintiff class, subject to later consideration or amendment, for the purpose of this temporary restraining order or preliminary injunction, because the propriety of class treatment here is apparent. Courts in this district have done so many times. See, e.g., Kirwa v. U.S Dep’t of Defense, 285 F. Supp. 3d 21, 44 (D.D.C. 2017) (granting provisional class certification in context of granting preliminary injunction); R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 181 (D.D.C. 2015) (same); Chang v. United States, 217 F.R.D. 262, 274 (D.D.C. 2003) (granting provisional class certification before defendants had filed their opposition to certification); Bame v. Dillard, No. 05cv-1833, 2008 WL 2168393 at *9 (D.D.C. May 22, 2008) (provisionally certifying class “without prejudice to Defendant’s renewed objections after the close of discovery”); Kifafi v. Hilton Hotels Retirement Plan, 189 F.R.D. 174, 178 (granting provisional class certification and noting that Rule 23(c)(1) “provid[es] that class certification may be granted provisionally and subsequently altered or amended”).
CONCLUSION The country faces an unprecedented public health and humanitarian crisis. This virus presents risks to all of us, and has forced us to come together as a country to do what is right for our communities. We must allow and encourage everyone in our society to engage in practices that curb the spread of this disease—social distancing and vigorous hygiene. This not only protects the most vulnerable among us, but hopefully gives our overburdened healthcare system the chance to treat those most gravely affected by COVID-19. The only equitable and constitutional solution
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is to order the immediate release of men at Hope Village to home confinement so they can protect themselves to the greatest extent possible. We plead with this Court to join the growing voices of courts who have decided to act in an effort to flatten the curve. Plaintiffs’ motion for a temporary restraining order and preliminary injunction should be granted.

Dated: April 2, 2020

Respectfully submitted,
/s/ Kevin Metz
Kevin Metz (D.C. Bar # 494087) Drew Wisniewski (D.C. Bar # 1016351) (pro hac vice pending) Clayton LaForge (D.C. Bar # 1033938) LATHAM & WATKINS LLP 555 Eleventh Street NW, Suite 1000 Washington, DC 20004 Tel: (202) 637-2200 kevin.metz@lw.com clayton.laforge@lw.com
Jonathan Smith (D.C. Bar # 396578) Emily Gunston (D.C. Bar # 1032056) (pro hac vice pending) Lyndsay A. Niles (D.C. Bar # 1003427) (pro hac vice pending) WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS 11 Dupont Circle, NW, Suite 400 Washington, DC 20036 jonathan_smith@washlaw.org
Attorneys for Plaintiffs

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EXHIBIT 1

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Declaration of Dr. Jonathan Giftos I, Jonathan Giftos, declare and state as follows: 1. I am a doctor duly licensed to practice medicine in the State of New York. I am board certified in internal medicine and addiction medicine. 2. I am currently the Medical Director, Addiction Medicine & Drug User Health at Project Renewal and a Clinical Assistant Professor in the Department of Medicine at Albert Einstein College of Medicine. I was previously the Clinical Director of Substance Use Treatment for NYC Health & Hospitals, Division of Correctional Health Services at Rikers Island. In that capacity I was responsible for the diversion, harm reduction, treatment and reentry services for incarcerated patients with substance use disorders. I further served as the medical director of the Key Extended Entry Program (KEEP), the nation’s oldest and largest jailbased opioid treatment program that provides methadone and buprenorphine to incarcerated patients with opioid use disorders. I successfully led an effort to remove non-clinical barriers to opioid treatment program enrollment in 2017, which dramatically expanded treatment access from 25% to over 80%, while also reducing post-release mortality for people with opioid use disorder. 3. I have extensive experience working with vulnerable populations such as the incarcerated and those experiencing homelessness. Coronavirus Epidemic in the District of Columbia 4. On March 11, 2020, the World Health Organization declared that the rapidly spreading outbreak of COVID-19, a respiratory illness caused by a novel coronavirus, is a
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pandemic, announcing that the virus is both highly contagious and deadly.1 To date, the virus is known to spread from person-to-person through respiratory droplets, close personal contact, and from contact with contaminated surfaces and objects.2 The CDC also warns of “community spread” where the virus spreads easily and sustainably within a community where the source of the infection is unknown.3 Experts are still learning how it spreads.
5. As of March31, 2020, novel coronavirus has infected more than 826,222 people, leading to 40,708 deaths worldwide.4 In the United States, there are at least 174,467 confirmed cases and there have been at least 3,416 deaths.5 There are confirmed coronavirus cases in every state, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands.
6. District Mayor Muriel Bowser declared a State of Emergency on March 11, 2020, four days after the DC Department of Health announced the first positive confirmed case of coronavirus disease in the District on March 7, 2020.6 On March 24, 2020, Mayor Bowser issued an Order entitled “Closure of Non-Essential Businesses and Prohibition on Large Gatherings During Public Health Emergency for the 2019 Novel Coronavirus (COVID-19),” requiring businesses to close and banning gatherings of 10 or more people.7 On March 30,
1 World Health Organization, Media Briefing on March 11, 2020: https://www.who.int/dg/speeches/detail/whodirector-general-s-opening-remarks-at-the-media-briefing-on-covid-19--11-march-2020. 2 Centers for Disease Control and Prevention, Coronavirus Disease 2019: How it Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html 3 Id. 4 Johns Hopkins University Coronavirus COVID-19 Global Cases by the Center for Systems Science and Engineering, https://coronavirus.jhu.edu/map.html. 5 Id. 6 Government of the District of Columbia, Coronavirus (COVID-19), available at https://coronavirus.dc.gov/ 7 The Mayor’s order relied, in part, on “the increasing number of confirmed cases of COVID-19 within Washington, DC, and throughout the metropolitan Washington region. Scientific evidence and public health practices show that the most effective approach to slowing the community transmission of communicable diseases like COVID-19 is
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Mayor Bowser issued a “stay at Home” order, prohibiting people from leaving their residences except under narrowly specified circumstances.8
7. As of March 31, 2020, there are 495 positive cases in District.9 To date, there
have been 9 deaths from COVID-19 in the District. Among the positive cases in the District are
people who are in custody, as well as people who work in courthouses, law enforcement, and
legal offices, increasing the likelihood of further exposure to and by people in custody.
8. There is currently no vaccine or cure. The primary focus is on preventing the
spread of the virus at this juncture. To prevent new infections, the Centers for Disease Control
and Prevention strongly recommend the following actions: thorough and frequent handwashing,
cleaning surfaces with EPA approved disinfectants, keeping at least 6 feet of space between people, and avoiding group settings.14 Social distancing has also been strongly recommended to
slow the rate of COVID-19 infections so that hospitals have the resources to address infected individuals with urgent medical needs.15 The President’s Coronavirus Guidelines for America, to
slow the spread of the coronavirus, warns that social gatherings in groups of more than 10 people
through limiting public activities and engaging in social distancing. … Medical and public health experts agree that COVID-19 is easily transmitted and it is essential that its spread be slowed to protect the ability of public and private health care providers to handle the expected influx of ill patients and safeguard public health and safety. …. Because of the risk of the rapid spread of the virus, and the need to protect all members of Washington, DC, and the region, especially residents most vulnerable to the virus, and local health care providers and emergency first responders, this Order requires the temporary closure of the on-site operation of all non-essential businesses and implements a prohibition on large gatherings.” https://coronavirus.dc.gov/release/mayor-bowser-orders-closurenon-essential-businesses 8 https://coronavirus.dc.gov/release/mayor-bowser-issues-stay-home-order 9 Johns Hopkins University Coronavirus COVID-19 Global Cases by the Center for Systems Science and Engineering, https://coronavirus.jhu.edu/map.html. 14 How to Protect Yourself, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019ncov/prepare/prevention.html. 15Coronavirus, Social Distancing, and Self-Quarantine, Johns Hopkins Medicine, https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/coronavirus-social-distancingandself-quarantine.
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should be avoided.16 In correctional settings, such sanitation, social distancing, and selfquarantining measures are nearly impossible for people in custody.17
9. On March 23, 2020, the CDC issued “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities.” These guidelines were drafted with the recognition that people who are incarcerated live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced. The guidance provides recommended best practices specifically for correctional and detention facilities.18 These measures are the minimum measures necessary to limit transmission to people in custody, staff and the public.
10. To mitigate the spread of Covid-19 in correctional setting, the CDC recommends that facilities clean and disinfect surfaces and objects that are frequently touched several times per day; ensure there is sufficient stocks of hygiene supplies, cleaning supplies, and medical supplies; provide a no-cost supply of soap, running water, disposable towels, tissues and notouch trash receptacles for disposal to people in custody sufficient to allow for frequent hand washing; consider relaxing restrictions on allowing alcohol-based hand sanitizer where security concerns allow; restrict transfers of people in custody to and from facilities unless necessary or to prevent overcrowding; communicate clearly and frequently with people in custody about changes to their daily routine and how they can help mitigate the spread of the virus; and conduct
16The President’s Coronavirus Guidelines for America, https://www.whitehouse.gov/wpcontent/uploads/2020/03/03.16.20_coronavirus-guidance_8.5x11_315PM.pdf. 17 See We Are Not a Hospital: A Prison Braces for the Coronavirus, New York Times, March 18, 2020, https://www.nytimes.com/2020/03/17/us/coronavirus-prisons-jails.html. 18 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html.
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verbal screening and temperature checks for all staff, newly admitted incarcerated persons, and visitors.19
11. The CDC also recommends that social distancing strategies be implemented, including enforcing space between people in common areas; reassigning bunks to provide more space between people, ideally 6 feet or more in all directions; staggering meals; and rearranging seating in the dining hall so that there is more space between individuals. Certain Identifiable Populations Are Far More Vulnerable To COVID-19 Than The Population At Large Is.
12. Many people in custody have chronic illnesses and residents of halfway houses may have served long sentences and grown older while incarcerated. While everyone is vulnerable to serious illness or death if they contract COVID-19, people with medical conditions or who are older are at greater risk.
13. The Centers for Disease Control have identified two groups of people at higher risk of contracting and succumbing to COVID-19: adults over 60 years old and people with chronic medical conditions.20
14. COVID-19 is more dangerous to persons in these high-risk groups than to the general population. Older people who contract COVID-19 are more likely to die than people under the age of 60. In a February 29th WHO-China Joint Mission Report, the preliminary mortality rate analyses showed that individuals age 60-69 had an overall 3.6% mortality rate and
19 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html 20 If You Are at Higher Risk, Centers for Disease Control and Prevention, https://tinyurl.com/vtbebzc; see also Report of the WHO-China Joint Mission on Coronavirus Disease (COVID-19), https://www.who.int/docs/defaultsource/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf at 12.
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those 70-79 years old had an 8% mortality rate.21 For individuals 40 years and younger, the mortality rate was as low as .2%. It has been found that older people diagnosed with COVID-19 are more likely to be very sick and require hospitalization to survive because the acute symptoms include respiratory distress, cardiac injury, arrhythmia, septic shock, liver dysfunction, kidney injury and multi-organ failure. Access to a mechanical ventilator is often required, as is the ability to be intubated quickly. People with chronic medical conditions (no matter their age) are also at significantly greater risk from COVID-19 because their already-weakened systems are less able to fight the virus. These chronic medical conditions include lung disease, cancer, heart failure, cerebrovascular disease, renal disease, liver disease, diabetes, immunocompromising conditions, and pregnancy. Those with pre-existing medical conditions have a higher probability of death if infected. The WHO-China Joint Mission Report provides that the mortality rate for those with cardiovascular disease was 13.2%, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.22 Correctional Settings Increase The Risk Of Transmission
15. Correctional settings increase the risk of contracting an infectious disease like COVID-19, due to the high numbers of people with chronic, often untreated, illnesses housed in a setting with minimal levels of sanitation, limited access to personal hygiene, limited access to medical care, and no possibility of staying at a distance from others. More than 38% of people in correctional custody nationally have a chronic illness.23
21 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://www.worldometers.info/coronavirus/coronavirus-age-sex-demographics/ (data analysis based on WHOChina Joint Mission Report, supra). 22 Report of the WHO-China Joint Mission on Coronavirus Disease (COVID-19), https://www.who.int/docs/defaultsource/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf at 12. 23 The Health and Health Care of US Prisoners: Results of a Nationwide Survey https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2661478/
6
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Case 1:20-cv-00890-RC Document 5-1 Filed 04/02/20 Page 8 of 13
16. Correctional facilities house large groups of people together. They sleep and eat in close proximity to one another and have no ability to socially distance.
17. Hot water, soap and paper towels are frequently in limited supply. People in custody, rather than professional cleaners, are responsible for cleaning the facilities and often not given appropriate supplies. This means there are more people who are susceptible to getting infected all congregated together in a context in which fighting the spread of an infection is nearly impossible.
18. Outbreaks of the flu regularly occur in jails, and during the H1N1 epidemic in 2009, many jails and prisons dealt with high numbers of cases.24
19. People in custody in the District already have begun to test positive for COVID19. Among the 1,638 people incarcerated by the District of Columbia Department of Corrections as of March 29, 2020,25 five have tested positive for coronavirus.26 As of March 26, 2020, Hope Village has tested three people in custody at Hope Village. Two tested negative while another person is awaiting test results.29 In the U.S. Marshals Service – the agency that is responsible for transporting people in custody to and from Hope Village—three Marshals have tested positive.
20. I have reviewed the declarations of Thurman Williams, Ronald Boatright, and Antonio Pleasant, as well as the report regarding CIC’s March 26, 2020 visit to Hope Village. Included below is my understanding of the specific conditions at Hope Village. If these facts are
24 Prisons and Jails are Vulnerable to COVID-19 Outbreaks, The Verge (Mar. 7, 2020) at https://bit.ly/2TNcNZY. 25 Inmate Count, DC Department of Corrections, available at https://doc.dc.gov/sites/default/files/dc/sites/doc/publication/attachments/March%2021st%20through%20March%20 27th%202020.pdf 26 https://abcnews.go.com/US/releases-infections-fear-us-coronavirus-crisis-jails-prisons/story?id=69803066 29 District of Columbia Corrections Information Council, CIC Visit to Hope Village on Thursday March 26, 2020, at 1, available at https://cic.dc.gov/sites/default/files/dc/sites/cic/release_content/attachments/Now%20Hope%20Village%20CIC%20 Statement%203_27_20%20-compressed.pdf
7
US-DOCS\114846822.1

Case 1:20-cv-00890-RC Document 5-1 Filed 04/02/20 Page 9 of 13
accurate, these conditions pose heightened risks to already vulnerable population of contracting COVID-19 and of developing acute symptoms from the virus. Many of these conditions alone pose an unreasonable risk to the residents, staff and public health, are contrary to public health guidance, and fall well below any meaningful standard of care. Taken together, they significantly compound the risks.
21. There are many opportunities for the virus to enter Hope Village. 22. Although people in custody at Hope Village are currently not allowed to leave, Hope Village still is admitting new people. Although BOP allegedly screens transfers with temperature and symptom checks when they leave prison, the new residents are not screened at admission to Hope Village. Asymptomatic spread of coronavirus occurs, so introducing new people to the facility increases risk of exposure and transmission for those detained there. 23. Staff also are not being screened. This presents a daily risk of introduction of the virus into Hope Village’s facility. 24. On March 20, 2020, Hope Village issued a shelter in place order for all of its residents. It restricts all non-emergency movements outside of Hope Village, including for all employment, in an effort to flatten the curve to minimize spread of the virus. This order has exacerbated crowded conditions at Hope Village because all of the residents must stay in the facility at all times. 25. People in custody at Hope Village live in close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread of COVID-19. People in custody in Hope Village share apartments. Each apartment has two bedrooms, each of which houses four people who sleep in bunk beds roughly 3 feet apart. Each apartment has only one bathroom that is shared among all the men assigned to that apartment.
8
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Case 1:20-cv-00890-RC Document 5-1 Filed 04/02/20 Page 10 of 13
26. People in custody at Hope Village have limited access to hot water, soap, disinfectants, gloves, and masks. Hygiene and cleaning supplies are not provided by Hope Village. People in custody there are responsible for purchasing their own hygiene supplies, but there is no commissary at the facility. Since the lockdown of the facility began on March 20, 2020, people in custody at Hope Village have to rely on family, if they have family in the area, to drop off hygiene supplies.30
27. People in custody at Hope Village are responsible for cleaning and sanitizing their own apartments and common areas, including the shared bathrooms. They frequently lack adequate cleaning supplies to do so. They report that the cleaning supplies are not readily available and those that are available are watered down. Lysol and alcohol-based cleaning supplies are not permitted because they are considered contraband.
28. No hand sanitizer is available to people in custody at Hope Village because it is considered contraband.
29. Tissues are not readily available. According to Hope Village, toilet paper is distributed twice a week.31
30. Hallways also pose risks of contagion: people in custody share the hallways, and everyone uses the hallway to access services.
30 District of Columbia Corrections Information Council, CIC Visit to Hope Village on Thursday March 26, 2020, at 5, available at https://cic.dc.gov/sites/default/files/dc/sites/cic/release_content/attachments/Now%20Hope%20Village%20CIC%20 Statement%203_27_20%20-compressed.pdf 31 District of Columbia Corrections Information Council, CIC Visit to Hope Village on Thursday March 26, 2020, at 3, available at https://cic.dc.gov/sites/default/files/dc/sites/cic/release_content/attachments/Now%20Hope%20Village%20CIC%20 Statement%203_27_20%20-compressed.pdf
9
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Case 1:20-cv-00890-RC Document 5-1 Filed 04/02/20 Page 11 of 13
31. Hope Village’s dining facilities preclude the CDC-recommended social distancing, and increase transmission opportunities. People in custody at Hope Village eat meals in large groups of about 20-25 people at any given time.32 Five people must sit at each of five or six round tables, which are approximately 5 feet in diameter.33 People eat from open trays in these crowded spaces and take their silverware from an open communal box.
32. The dining area is not in the same buildings in which people incarcerated at Hope Village live. Consequently, on the way to the dining hall, people share a hallway, touch or open doors, and interact with staff and other residents. They then touch food trays and use their hands to get silverware out of communal trays.
33. There is no sink in the dining area in which people can wash their hands before they eat.
34. When Hope Village suspects someone may have contracted Covid-19, they place that person in modified isolation by assigning them to an apartment without roommates. They live in an apartment by themselves but at times use the hallways with the rest of the men living in the building. Staff bring them food trays.
35. One person who recently released from isolation was told he cannot remain living in the apartment by himself. Hope Village required him to move into an apartment with 6 other men. He now shares a bedroom with 3 other men.
36. Hope Village has not educated people in custody there on ways to minimize community spread of COVID-19.
32 District of Columbia Corrections Information Council, CIC Visit to Hope Village on Thursday March 26, 2020, at 3, available at https://cic.dc.gov/sites/default/files/dc/sites/cic/release_content/attachments/Now%20Hope%20Village%20CIC%20 Statement%203_27_20%20-compressed.pdf 33 Id.
10
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Case 1:20-cv-00890-RC Document 5-1 Filed 04/02/20 Page 12 of 13
37. Hope Village does not have on-site medical staff. People in custody at Hope Village are only treated if they are sent by ambulance to the hospital.
38. People in custody in Hope Village who are at lower and higher risks (because of age and preexisting medical conditions) of contracting the virus are not separated.
39. Hope Village has not informed the population of what the protocol will be for symptomatic people in custody; absent a transparent protocol, individuals in correctional settings often fear they will be confined in isolation if they volunteer that they are symptomatic.
40. These conditions increase the likelihood that COVID-19 will spread rapidly through Hope Village.
Reducing Population Size At Specific Correctional Facilities Is A Crucial Public Health Measure
41. Under these conditions, it will not be possible to prevent the spread of COVID-19 in Hope Village. Congregate settings like Hope Village allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing or touching surfaces touched by an infected person. When people live in close, crowded quarters and must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater.
42. Given that the only viable public health strategy available in the United States currently is risk mitigation, reducing the size of the population in detention centers, jails and prisons is crucially important to reducing the level of risk both for those within those facilities and for the community at large.
43. Hope Village cannot adequately keep residents safe. Releasing people to home confinement while they await their release dates will allow Hope Village more agency to
11
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Case 1:20-cv-00890-RC Document 5-1 Filed 04/02/20 Page 13 of 13 implement the mitigation efforts that we know work – physical distancing, hand hygiene, and true self-isolation if symptomatic.
44. Every effort should be made to reduce chances of exposure to the novel coronavirus; however given the proximity and high number of people in custody and facility staff, the inability to practice social distancing at Hope Village, and lack of proactive disease control measures, it will be extremely difficult to sustain such efforts. Reducing population, therefore, is the only way to mitigate the unreasonable risk of harm at Hope Village during this national public health emergency. For the people that remain in custody there, proactive disease control measures must be implemented.
I declare under penalty of perjury that the foregoing is true and correct. Dated: Brooklyn, New York Executed on April 1, 2020
Dr. Jonathan Giftos
12
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Case 1:20-cv-00890-RC Document 5-2 Filed 04/02/20 Page 1 of 3
EXHIBIT 2

Case 1:20-cv-00890-RC Document 5-2 Filed 04/02/20 Page 2 of 3
Declaration of Mr. Thurman Williams
1. My name is Mr. Thurman Williams. I am 49 years old. I have been at Hope Village since February 18, 2020.
2. I submit this declaration in support of a multi-plaintiff petition for a writ of habeas corpus and for injunctive and declaratory relief in federal court based on the risks that I and others face because of COVID-19.
3. I have already served the majority of my 30 year prison sentence. I was transferred to Hope Village from the Federal Correctional Institution – Schuylkill. I become eligible for home confinement on June 17, 2020. I will be released from custody on parole on December 17, 2020. Once released, I have a residence outside of Hope Village where I will stay in District Heights, Maryland.
4. I live in a two bedroom apartment at Hope Village in Building 2850 with five other men. I share a bedroom with two other men. I share a bathroom with five other men. There are about 70 total residents in Building 2850.
5. We are forced to live in close quarters. Each apartment has two bedrooms, each of which houses up to four residents who sleep in bunk beds roughly three feet apart. Each apartment has only one bathroom that is shared among all the men assigned to that apartment.
6. Typically, we are allowed to leave the facility during the day for a job or to visit family. On March 20, 2020, Hope Village issued a shelter in place order for all residents for all non-emergency movement. We must stay in the facility at all times. Since the order, we are mostly confined to our apartments all day.
7. Most staff do not wear protective gear.
8. Residents are not screened for COVID-19.
9. There are no medical staff at Hope Village. Residents can only seek emergency medical treatment in a hospital.
10. We all share the hallways to access services.
11. The dining area is not in the same buildings in which we live. Consequently, on the way to the dining hall, we must touch or open doors that are touched by many other residents. There is no sink in the dining area, so we have no means to wash our hands before we eat and after touching doors that we needed to open on the way to the dining area.
12. The dining area is not cleaned in between uses.
US-DOCS\114913385.1

Case 1:20-cv-00890-RC Document 5-2 Filed 04/02/20 Page 3 of 3
13. We eat our meals in large groups of people. The dining room is very crowded and small. I have to sit close to other men at the table while I am eating.
14. Residents eat from open trays in these crowded spaces. Additionally, we take our silverware from an open communal box.
15. Residents are required to clean their own living spaces. We do not have access to protective gear while cleaning.
16. Hope Village has not given residents any protective gear.
17. Hope Village does not provide free and readily available soap, and cleaning and disinfectant supplies for living areas. We have to rely on family, if we have family in the area, for hygiene supplies. Cleaning supplies, which are often watered down, are available in limited supply and upon request. We cannot keep cleaning supplies in our living space due to safety reasons.
18. We have no water fountain. There is no running water, other than the bathroom sink. There is a water jug available only during meal times that everyone touches. Our only other option is to purchase overpriced water from a vending machine.
19. Since the lockdown, Hope Village has admitted new residents.
I, Stacey Litner, certify that I have read the foregoing to Mr. Williams and that he affirmed that the foregoing is true and correct on April 1, 2020.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on April 1, 2020.

US-DOCS\114913385.1

Stacey Litner WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS 700 14th Street NW, Suite 400 Washington, DC 20005 Tel.: (202) 319-1000 stacey_litner@washlaw.org

Case 1:20-cv-00890-RC Document 5-3 Filed 04/02/20 Page 1 of 4
EXHIBIT 3

Case 1:20-cv-00890-RC Document 5-3 Filed 04/02/20 Page 2 of 4
Declaration of Mr. Ronald Ian Boatright
1. My name is Mr. Ronald Ian Boatright. I am 36 years old.
2. I submit this declaration in support of a multi-plaintiff petition for a writ of habeas corpus and for injunctive and declaratory relief in federal court based on the risks that I and others face because of COVID-19.
3. I am confined to Hope Village. Despite the fact that I became eligible for home confinement on March 13, 2020, I was transferred from Federal Correctional Institution – Sheridan to Hope Village on March 16, 2020. My release date is set for September 13, 2020. I have a residence outside of Hope Village where I will stay in Springdale, MD. The US probation office approved and verified this residence on January 10, 2020.
4. In mid-February, prior to my transfer from FCI Sheridan, I fell ill. Many individuals at FCI Sheridan were sick with flu-like symptoms at the time. I experienced shortness of breath, coughing, stomach pain, fever, hot flashes, ear injury, and dizziness.
5. I live in two-bedroom apartment at Hope Village in Building 2850 with three other men. I share a bedroom with two other people. I share a bathroom with three other men. There are about 70 total residents in Building 2850.
6. We are forced to live in close quarters. Each apartment has two bedrooms, each of which houses residents who sleep in beds roughly three feet apart. Each apartment has only one bathroom that is shared among all the men assigned to that apartment.
7. Typically, we are allowed to leave the facility during the day for a job or to visit family. On March 20, 2020, Hope Village issued a shelter in place order for all residents for all non-emergency movement. Under Hope Village’s order, we are not allowed to leave Hope Village except for medical emergencies. Despite already having secured a job at SmartOne Solutions, Hope Village will not allow me to report to my job under the order.
8. Most staff do not wear protective gear.
9. I do not know of a resident who has been screened for COVID-19.
10. Hope Village does not have on-site medical staff. We receive medical treatment only if we are sent by ambulance to a hospital.
11. We all share the hallways to access services, which are often crowded.
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Case 1:20-cv-00890-RC Document 5-3 Filed 04/02/20 Page 3 of 4
12. The dining area is not in the same buildings in which we live. Consequently, on the way to the dining hall, we must touch or open doors that are touched by many other residents. There is no sink in the dining area, so we have no means to wash our hands before we eat and after touching doors that we needed to open on the way to the dining area.
13. We eat our meals in large groups of people. The dining room is very crowded and small. I have to sit close to other men at the table while I am eating.
14. Residents eat from open trays in these crowded spaces. Additionally, we take our silverware from an open communal box. We have to share condiments, including syrup and ketchup bottles as well as salt and pepper shakers.
15. Hope Village has not informed us of any protocol for isolating symptomatic residents. Two days ago, Hope Village, for the first time, posted a flyer in Building 2850 with information about the coronavirus and on ways to minimize community spread of COVID-19. However, we continue to be housed in group bed rooms and tight living quarters without adequate sanitation and social distancing. That same day, Hope Village staff started making an announcement on the PA system with information about COVID-19.
16. Hope Village does not provide adequate basic cleaning services or basic supplies to clean our living areas or to maintain personal hygiene.
17. Residents are required to clean their own living spaces. We do not have access to protective gear while cleaning.
18. Hope Village does not provide free and readily available soap and disinfectant supplies for living areas. Cleaning supplies, which are often watered down, are available in limited supply and upon request. We do not have access to cleaning rags; we have to make our own. We cannot keep cleaning supplies in our living space due to safety reasons. Hope Village does not provide any gloves or masks. Hope Village has not provided hygiene and cleaning supplies to us. We are responsible for purchasing our own hygiene supplies, but there is no commissary at the facility. Since the lockdown of the facility began on March 20, 2020, we have had to rely on family, if they are in the area, to drop off hygiene supplies.
19. Tissues to blow your nose are not available.
20. We had limited access to hot water on March 27, 2020 in our building. This has occurred on at least two occasions.
21. We have no water fountain. There is no running water, other than the bathroom sink. There is a water jug and juice dispenser available only during meal times. Everyone touches these dispensers. Our only other option is to purchase overpriced
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Case 1:20-cv-00890-RC Document 5-3 Filed 04/02/20 Page 4 of 4
water from a vending machine. There is a vending machine in each building that everyone touches.
22. On March 25, 2020, D.C. City Council Member, Trayon White, came to Hope Village to drop off hygiene and other supplies to residents. Hope Village refused to allow Mr. White to enter the facility and to drop off supplies. Because residents were not allowed to speak with Mr. White, other residents in Building 40 at Hope Village attempted to speak to Mr. White by yelling out the window. The next day, I observed U.S. Marshals remove two to three residents from the facility.
23. I believe Hope Village eventually allowed community members to drop off supplies, water, and some packaged food. On or around March 30, 2020, I stood in line with about 30 other residents to pick up and sign for a care package containing some of these supplies.
24. Every week, all residents are forced to congregate in a room of more than 10 people at any given time while we wait to submit to a urine sample.
25. Since the lockdown, Hope Village has admitted new residents.
I, Stacey Litner, certify that I have read the foregoing to Mr. Boatright and that he affirmed that the foregoing is true and correct on April 1, 2020.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on April 1, 2020.

US-DOCS\114915856.1

Stacey Litner WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS 700 14th Street NW, Suite 400 Washington, DC 20005 Tel.: (202) 319-1000 stacey_litner@washlaw.org

Case 1:20-cv-00890-RC Document 5-4 Filed 04/02/20 Page 1 of 3
EXHIBIT 4

Case 1:20-cv-00890-RC Document 5-4 Filed 04/02/20 Page 2 of 3
Declaration of Mr. Anthony Antonio Pleasant
1. My name is Anthony Antonio Pleasant. I am 33 years old. I reside at Hope Village. 2. I submit this declaration in support of a multi-plaintiff petition for a writ of habeas corpus
and for injunctive and declaratory relief in federal court based on the risks that I and others face because of COVID-19. 3. I am set to be released from custody on April 14, 2020. 4. About 2 weeks ago, I had a severe respiratory infection for which I went to the hospital. The doctors at the hospital told Hope Village that I needed to be kept in isolation because of my symptoms. 5. After that, I was assigned to an apartment at Hope Village by myself. During that time, staff would bring me my food. They would leave the food tray in my room and then come and get it later. 6. While I was in isolation, I used the hallway several times. I went downstairs to the vending machine once and I went to the office several times to get supplies. 7. Eventually, staff told me I could not do that anymore. 8. Several days ago the hospital told me I tested negative for COVID-19. 9. Hope Village staff told me that after I had been in isolation for 14 days, I would be moved to an apartment with other people. 10. I asked Hope Village staff to let me stay in the apartment without roommates because I was afraid of contracting COVID-19, which I was afraid would be especially dangerous to me after the severe respiratory symptoms I had had while sick. 11. On March 31, 2020, I was moved to an apartment with 5 other men. I share a bedroom with 2 other men. One man from the other bedroom has since been released. Now I share the bathroom with 4 other men. 12. We are forced to sleep in close quarters and bunk beds that are about three feet apart. 13. The dining room is not in the same building in which I live. To get to that dining room, I have to walk to the other building, touching several doors and interacting with staff and other residents. I have to get my silverware from the same tray that other men are getting their silverware from. The silverware is all mixed together, so each person has to rifle through it to get each of the utensils we need. 14. There is not a sink in the dining room, so we cannot wash our hands before we eat.
US-DOCS\114915883.1

Case 1:20-cv-00890-RC Document 5-4 Filed 04/02/20 Page 3 of 3 15. We eat our meals in large groups of people. The dining room is very crowded. I have to
sit close to other men at the table while I am eating. 16. It is not possible for me to stay six feet from other people while I am eating and getting
my food. 17. The dining room is not cleaned between uses. I, Stacey Litner, certify that I have read the foregoing to Mr. Pleasant and that he affirmed that the foregoing is true and correct on April 1, 2020. I declare under penalty of perjury that the foregoing is true and correct. Executed on April 1, 2020
Stacey Litner
US-DOCS\114915883.1

 
 Case 1:20-cv-00890-RC Document 28 Filed 04/06/20 Page 1 of 27

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THURMAN WILLIAMS, et al., Plaintiffs,
v. FEDERAL BUREAU OF PRISONS, et al.,
Defendants.

Civil Action No. 20-0890 (RC)

DISTRICT DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER INTRODUCTION
Plaintiffs Thurman Williams and Ronald Boatright seek a temporary restraining order (TRO) against Quincy Booth, Director of the District of Columbia Department of Corrections (DOC), and the District of Columbia (collectively, the District), as well as against defendants Federal Bureau of Prisons (BOP), BOP Director Michael Carvajal, and Hope Village, Inc. (Hope Village). Plaintiffs allege that conditions inside Hope Village, a halfway house in which they are serving courtordered sentences, violate their rights under the Eighth Amendment and warrant a TRO amid the COVID-19 pandemic.
Plaintiffs cannot make the requisite showing for a TRO against the District because they cannot show a likelihood of success on the merits. First, both Mr. Williams and Mr. Boatright remain in BOP custody in a privately-managed facility. Therefore, both plaintiffs lack standing to bring a claim against the District. Second,

Case 1:20-cv-00890-RC Document 28 Filed 04/06/20 Page 2 of 27

they have not established deliberate indifference on the part of District officials.

Third, they have not pled or otherwise shown facts sufficient to establish municipal

liability. Fourth, to the extent they seek relief in the form of a writ of habeas corpus,

plaintiffs cannot pursue such relief because they have not named the DOC Warden

as a defendant. And finally, plaintiffs have not shown a likelihood of irreparable harm

absent immediate relief, or that the balance of the equities and the public interest

weigh in their favor. Their motion for a TRO should be denied.

BACKGROUND

I. COVID-19 in the District of Columbia

On March 7, 2020, officials announced the District’s first confirmed case of

COVID-19, an infectious respiratory illness caused by the novel coronavirus that has

spread rapidly across the globe since its first detection in humans in late 2019. See

Press Release, Gov’t of the District of Columbia, DC Department of Health Confirms

First Coronavirus Case (March 7, 2020), available at

https://coronavirus.dc.gov/release/dc-department-health-confirms-first-coronavirus-

case;

D.C.

Health,

COVID-19

FAQs,

available

at

https://coronavirus.dc.gov/node/1464356. Although the virus’s sufferers have

exhibited a range of symptoms, severe cases have been known to cause shortness of

breath, pneumonia and even death. Id. The World Health Organization (WHO) has

declared the spread of COVID-19 a global pandemic. See “WHO Director-General’s

Opening Remarks at the Media Briefing on COVID-19 – 11 March 2020,” World

Health

Organization,

March

11,

2020,

available

at

2

Case 1:20-cv-00890-RC Document 28 Filed 04/06/20 Page 3 of 27
https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-atthe-media-briefing-on-covid-19---11-march-2020.
Municipalities across the country have hastened to respond to COVID-19’s unprecedented spread in just a few short weeks. Since early March 2020, U.S. cities and states have ordered the closure of schools and non-essential businesses, banned large gatherings and recommended that individuals who do not live in the same household abide by now-familiar “social distancing” measures where feasible. See, e.g., Jesse McKinley and Michael Gold, Ban on Large Gatherings in N.Y. as Coronavirus Cases Rise Sharply, N.Y. Times, March 12, 2020, available at https://www.nytimes.com/2020/03/12/nyregion/coronavirus-nyc-event-ban.html; Dominic Fracassa, SF bans large gatherings as nation moves to confront pandemic, San Francisco Chronicle, March 11, 2020, available at https://www.sfchronicle.com/bayarea/article/Mayor-London-Breed-bans-all-largegatherings-15123312.php.
The District is no exception. On February 28, 2020, more than a week before the District recorded its first case of COVID-19, Mayor Muriel Bowser issued an order preemptively activating the District’s Emergency Operations Center and requiring all District agencies to ensure they had up-to-date plans for emergency operations. See Mayor’s Order 2020-035, February 28, 2020, available at https://dchealth.dc.gov/sites/default/files/dc/sites/doh/page_content/attachments/202 0-035-District-Government-Preparation-for-the-Coronavirus-COVID-19.pdf.
While the District prepared in earnest, events unfolded quickly. By March 11,
3

Case 1:20-cv-00890-RC Document 28 Filed 04/06/20 Page 4 of 27

2020, Mayor Bowser issued a Declaration of Public Emergency and a Declaration of

Public Health Emergency based on the WHO declaration of a pandemic, as well as on

the outbreaks seen in other cities throughout the world. See Mayor’s Order 2020-045,

March

11,

2020,

available

at

https://mayor.dc.gov/sites/

default/files/dc/sites/mayormb/release_content/attachments/MO.DeclarationofPublic

Emergency03.11.20.pdf; Mayor’s Order 2020-046, March 11, 2020, available at

https://mayor.dc.gov/sites/default/files/dc/sites/mayormb/release_content/attachment

s/MO.DeclarationofPublicHealthEmergency03.11.20.pdf. Both Declarations have

since been extended through at least April 24, 2020, and the District is now under a

stay-at-home order. See Mayor’s Order 2020-054, March 30, 2020, available at

https://mayor.dc.gov/release/mayor-bowser-issues-stay-home-order. This case arises

in the context of an unprecedented response to an unprecedented situation.

II. DOC’s Contract with Hope Village

DOC is the agency charged with safely and securely housing pretrial detainees,

those serving sentences for misdemeanor offenses, and those adjudicated guilty but

awaiting sentencing for offenses in the District. DOC is responsible for ensuring “the

safekeeping, care, protection, instruction, and discipline of all persons committed to

[its] institutions.” D.C. Code § 24-211.02(a). The agency also plays an important role

in ensuring the safety of those inside and outside its facilities. See, e.g., 28 DCMR

§ 500.3 (permitting DOC to take individuals charged with criminal violations into

involuntary protective custody who are “found to be in danger from a clear and

present threat to that resident’s safety”); Id. § 507.10 (allowing DOC to withhold from

4

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residents information “which may endanger any resident(s) or other person(s), or cause a riot, other major disturbance, or damage to property”); Teamsters Local Union 1714 v. Pub. Emp. Relations Bd., 579 A.2d 706, 712 (D.C. 1990) (observing DOC employees “are involved directly with public safety”).
DOC operates a system consisting of two District-run correctional facilities and three halfway houses run by private contractors. See D.C. Department of Corrections, “Correctional Facilities,” available at https://doc.dc.gov/page/correctional-facilities. Hope Village is one of those halfway houses. In total, Hope Village houses approximately 300 individuals. See Pls.’ Mem. in Supp. of Mot. for TRO and Preliminary Injunction (Pls.’ Mem.) [13] at 9. However, the overwhelming majority of these individuals are in the custody of BOP, which independently contracts with Hope Village to provide services for certain individuals in federal custody. See Compl. ¶¶ 30, 34. As of April 4, 2020, DOC houses only 20 residents at Hope Village: one serving a misdemeanor sentence, and 19 pre-trial defendants. See Declaration of Renee Alexander (Alexander Decl.), Ex. 1, ¶ 7.1
The District has contracted with Hope Village for many years to provide services to designated adult males in DOC custody.2 Id. ¶ 5. The District’s current contract with Hope Village (the Contract) was executed in 2014 and through a series

1

On April 6, 2020, the one individual in DOC custody serving a misdemeanor

sentence filed an unopposed motion in Superior Court seeking his release. See

District of Columbia v. Marcus Downing, Crim. Case No. 202 CTF 310 (D.C. Super.

Ct.).

2

All individuals in DOC custody at Hope Village are men; DOC has contracted

with a separate halfway house, Fairview, to house women. See Alexander Decl. ¶ 3.

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Case 1:20-cv-00890-RC Document 28 Filed 04/06/20 Page 6 of 27
of extensions remains in effect through the end of May 2020. Id. ¶ 6. The Contract provides that Hope Village “shall provide housing for sentenced misdemeanants and court ordered commitments referred by the D.C. Courts for the transitioning from incarceration to productive community living [and for] establishment/reestablishment of employment pending their eventual release from custody.” Hope Village Contract (Contract), Ex. 2 at 9. The Contract specifies that the District “will screen all potential referrals and send them to [Hope Village] from the District’s Correctional Facilities,” though Hope Village may return a resident to his DOC facility of origin if the “resident’s behavior becomes unmanageable.” Id. at 21.
The Contract specifies basic conditions of residents’ living arrangements that Hope Village must provide, including “a minimum of sixty (60) square feet of individualized and secure bedroom space,” “a means for residents to launder their personal clothing,” and “bed linens and towels on a weekly basis” for no charge. Id. at 15. The Contract also requires Hope Village to meet various conditions for safety, sanitation, and environmental health specified by District and federal law, including providing new residents with “personal hygiene articles … such as[] soap, tooth paste [sic] tooth powder or denture cleanser, toilet paper, sanitary napkins, deodorant and shaving equipment” at no cost. See id. at 15-16. Hope Village must provide residents with free meals and ensure all food service complies with District and federal law. Id. at 18-19. In addition, Hope Village must provide each resident “access to medical services,” including transportation to obtain required treatment. Id. at 22.
Regardless of the facility in which they reside, DOC does not have the legal
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authority to unilaterally release individuals from its custody. Before the COVID-19 pandemic, District of Columbia law provided DOC discretion to award a limited number of sentencing credits to those serving sentences for misdemeanors, for good behavior, D.C. Code § 24-221.01c(a), and “up to 3 credits per calendar month for each” of certain designated rehabilitation, work detail or other special programs, id. § 24221.01c(b).3 Individuals can also earn “educational good time credits of no less than 3 days a month and not more than 5 days a month” for participating in specified academic or vocational programs.” Id. § 24-221.01(a). Until recently, the law expressly stated that “[n]o person shall receive more than 10 credits per calendar month” when combining all of these categories. Id. § 24-221.01c(c) (2016).
On March 18, 2020, however, the D.C. Council passed the COVID-19 Response Emergency Amendment Act of 2020 (COVID-19 Emergency Act). See D.C. Act 23247, March 17, 2020, available at http://lims.dccouncil.us/Download/44469/B23-0718SignedAct.pdf. Among other measures, the COVID-19 Emergency Act amended Section 24-221.01c(c) to specify that “during a period for which a public health emergency has been declared …, [DOC] shall have discretion to award additional credits” to those serving misdemeanor sentences “to effectuate immediate release of persons sentenced for misdemeanors”—with the qualification that this discretion could only be exercised “consistent with public safety.” See D.C. Code § 24-221.01c(c) (2020). As noted earlier, of the 20 DOC residents at Hope Village, only one is serving a misdemeanor sentence. See Alexander Decl. ¶ 7.

3

Each credit counts as one day of an individual’s sentence.

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The Superior Court of the District of Columbia, in response to an “Emergency Motion for an Order to Show Cause Why Persons Serving Misdemeanor Sentences at the Department of Corrections Should Not Be Released Forthwith in Light of the Crisis Created by the COVID-19 Pandemic” filed by the Public Defender Service for the District of Columbia (PDS), ordered expedited responses by the United States Attorney’s Office (USAO) and the Office of the Attorney General for the District of Columbia (OAG). See In Re Sentenced Misdemeanants, 2020 CNC 000120 (Super. Ct. of D.C. March 31, 2019) (Order).4 The court’s order noted “that nothing in this Order shall prevent the filing of a D.C. SCR Rule 35 motion for sentence reduction to be filed on behalf of an individual defendant serving a misdemeanor sentence” and directed that such motions shall be filed with Judges McKenna and Dayson, and require a response from USAO or OAG within two business days. Id. As of this filing, the Superior Court has not yet ruled on PDS’s motion. III. Hope Village Site Visits
To ensure that Hope Village remains in compliance with the Contract, DOC inspects Hope Village approximately once a month. See Alexander Decl. ¶ 8. If conditions are not up to the standards required under the Contract, DOC alerts Hope Village and requires remedial action.5 Id.

4

The USAO and OAG opposed the motion on April 1, 2020. See Docket, In Re

Sentenced Misdemeanants, 2020 CNC 000120 (Super. Ct. of D.C.) (available at

https://www.dccourts.gov/eaccess).

5

In exceptional cases, DOC could terminate the Contract as defaulted.

Alexander Decl. ¶ 9. If that were to happen, the judge who assigned each DOC pre-

trial resident to Hope Village would determine where to place that resident; DOC

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Since the COVID-19 outbreak began, DOC officials have been in daily contact with Hope Village to monitor its contractual compliance. Id. ¶ 11. The DOC’s Office of Community Corrections (DOCOCC) conducted a site visit to Hope Village on March 26, 2020, to investigate claims that residents had fallen ill and that the facility lacked a sufficient supply of personal hygiene and cleaning products. See COVID-19 Hope Village Investigation Report (DOCOCC Report), Attachment A to Ex. 1 at 1. In that visit, however, DOCOCC officials found “that Hope Village is in compliance with hygiene and cleaning products for staff and residents,” citing evidence—confirmed by photographs taken during the inspection—of “large quantities of cleaning products, toilet paper, paper towels, soap, food, and snacks.” Id.; Alexander Decl. ¶ 13. Officials observed that “Hope Village also had large quantities of masks and gloves for staff and residents.” DOCOCC Report at 2; Alexander Decl. ¶ 13. Officials found that one Hope Village resident was tested for COVID-19 based on flu-like symptoms, but the test came back negative; he was assigned to an apartment by himself out of an abundance of caution.6 Id. As of DOC’s March 26, 2020 site visit, there were “[n]o other residents who have complained of flu-like symptoms.” Id.
Hope Village nevertheless implemented several precautions. Residents and staff were given COVID-19 information “via a Resident Meeting and staff meeting” in which “[p]recautions, symptoms and social distancing were discussed.” Id. To give

would transfer those serving misdemeanor sentences to either the Central Detention Facility (CDF) or Correctional Treatment Facility (CTF) to finish their sentences. Id.

6

As noted below, it appears at least two additional residents may have been

tested, but as of March 26, 2020, none of the tests had come back positive.

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residents ample space to practice social distancing during meals, Hope Village converted an empty apartment living room area into additional dining space for residents. Id.; Alexander Decl. ¶ 13. DOC found that Hope Village had begun taking additional precautions in response to individual resident concerns. For example, one resident had complained that at breakfasts, food service staff would put out a single bowl of jam with a single serving spoon for all residents to use. DOCOCC Report at 2. Inspection officials found that in response, food service staff changed their practice and began putting jam directly onto residents’ serving trays. Id. at 3. Ultimately DOCOCC “left with the impression that the allegations noted regarding lack of supplies, food etc. were false and Hope Village has more than adequate supplies to keep staff and residents safe during the COVID-19 Pandemic.” Id.; Alexander Decl. ¶ 14. DOC officials nevertheless issued a number of recommendations for how Hope Village could improve its precautions against COVID-19 and has continued to urge that additional appropriate precautions be taken. DOCOCC Report at 3; Alexander Decl. ¶ 14.
The District of Columbia Corrections Information Council (CIC) independently conducted its own site visit to Hope Village on March 26, 2020, and published its findings to the public.7 See DC Corrections Information Council, “RE: CIC Visit to

7

CIC is “an independent monitoring body mandated by the US Congress and

the DC Council to inspect, monitor, and report on the conditions of confinement at

facilities where DC residents are incarcerated.” See DC Corrections Information

Council, “About the DC Corrections Information Council,” available at

https://cic.dc.gov/page/about-cic; see also D.C. Code § 24-101.01. CIC is governed by

an Executive Director appointed by the Mayor and a three-member board consisting

of one member appointed by the Mayor with the advice and consent of the D.C.

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Hope Village on Thursday, March 26, 2020” (CIC Report), available at https://cic.dc.gov/sites/default/files/dc/sites/cic/release_content/attachments/Now%20 Hope%20Village%20CIC%20Statement%203_27_20%20-compressed.pdf.
CIC observed that as of its visit, three residents had been tested for COVID19; two tested negative, and one still awaited results. Id. at 1. No staff had been tested because “there were no concerns about staff health.” Id. CIC found Hope Village to have “an adequate supply of hygiene and cleaning products for staff and residents,” noting that its conclusion was independent of DOC’s similar finding. Id. at 4. Residents had access to “cleaning supplies including disinfectant” for their use “at any time,” and each resident had their own bar of soap. Id. at 5. Hope Village was still conducting programs such as “drug treatment and transitional skills journaling” but had begun conducting them in smaller groups to facilitate social distancing. Id. at 6. Mental health services continued to be provided, and residents could go outside “for 30 minutes at a time to get fresh air.” Id. IV. Plaintiffs’ Allegations
Plaintiffs are two individuals currently residing at Hope Village in BOP custody. Plaintiff Williams was transferred to Hope Village from Federal Correctional Institution–Schuylkill, Complaint [9] ¶ 25, and plaintiff Boatright was transferred from Federal Correctional Institution–Sheridan, id. ¶ 28. Plaintiffs have brought this lawsuit against BOP, BOP Director Michael Carvajal, the District, DOC Director
Council, and the other two appointed directly by the D.C. Council. See D.C. Code § 24101.01(b)(2)(A), (b)(3).
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Quincy Booth, and Hope Village. Id. ¶¶ 30-34. Plaintiffs’ Complaint presents a number of general allegations about Hope
Village’s response to COVID-19. Plaintiffs allege that the conditions in Hope Village “disregard all medical and public health directives for risk mitigation,” and that Hope Village “does not encourage or practice social distancing in its facilities.” Id. ¶ 40. In addition, plaintiffs allege deficiencies in COVID-19 screening, id. ¶¶ 43-44, the provision of ample space to practice social distancing, id. ¶ 46, and the provision of hygienic and cleaning supplies, id. ¶¶ 48-55. Plaintiffs also allege that residents have not received access to on-site medical care or information about mitigating COVID19 risk. Id. ¶¶ 62-64. Plaintiffs allege that this has occurred despite BOP guidance instructing private facilities on how to prevent the spread of COVID-19. Id. ¶¶ 71-73.
Although plaintiffs raise three claims for relief, the only claim against the District is an Eighth Amendment claim under 42 U.S.C. § 1983, alleging that the District has failed to guarantee its post-conviction detainees “the right to reasonable safety.” Id. ¶¶ 94-96, 90. Plaintiffs additionally seek to certify a class consisting of “[a]ll persons who were, as of the filing date of the complaint in this case, or will be in the future, confined in Hope Village.” Id. ¶ 87. As relief, plaintiffs seek a declaration that the conditions at Hope Village “place Plaintiffs at an unreasonable risk of contracting serious illness.” Id. ¶ 102. They seek injunctive relief in the form of seven changes in the operations at Hope Village, id. ¶ 103, a writ of habeas corpus ordering “the immediate release of Plaintiffs and sufficient members of the Plaintiff Class to ensure that the remaining residents can effectively practice social distancing
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Case 1:20-cv-00890-RC Document 28 Filed 04/06/20 Page 13 of 27

and safe sanitation measures,” id. ¶ 104, an order for “all Defendants to immediately release Plaintiffs,” id. ¶ 105, and any other relief deemed “just and equitable,” id. ¶ 107. V. Procedural History
Plaintiffs filed their lawsuit on April 2, 2020. See Compl. [1]. Along with the Complaint, plaintiffs filed a motion for a temporary restraining order and a motion for preliminary injunction. See Mot. for Temporary Restraining Order [3]; Mot. for Preliminary Injunction [4]. Plaintiffs then filed an Emergency Motion To Shorten Defendants’ Time in Which To Respond to Plaintiffs’ Temporary Restraining Order Motion [6].8 On April 3, 2020, the Court ordered all defendants to respond to plaintiffs’ motion for a TRO by April 6, 2020 at 5:00 p.m. See Minute Order of April 3, 2020.
LEGAL STANDARD A temporary restraining order “is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.’” Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). “The same standards apply for both temporary restraining orders and preliminary injunctions.” Experience Works, Inc. v. Chao, 267 F. Supp. 2d 93, 96 (D.D.C. 2003). A plaintiff seeking a TRO must establish that: (1) “he is likely to succeed on the merits”; (2) “he is likely to suffer irreparable harm in the absence of preliminary

8

Plaintiffs later filed corrected versions of these original filings.

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Case 1:20-cv-00890-RC Document 28 Filed 04/06/20 Page 14 of 27
relief”; (3) “the balance of equities tips in his favor”; and (4) “an injunction is in the public interest.” Sherley, 644 F.3d at 392. Because injunctive relief is an extraordinary remedy, a plaintiff seeking such relief must prove all four prongs of the standard before relief can be granted. In re Navy Chaplaincy, 738 F.3d 425, 428 (D.C. Cir 2013); Winter, 555 U.S. at 22. The plaintiff bears the burden of doing so. Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009).
“The usual role of a preliminary injunction is to preserve the status quo pending the outcome of litigation.” Cobell v. Norton, 455 F.3d 301, 314 (D.C. Cir. 2006) (quoting Dist. 50, United Mine Workers of Am. v. Int’l Union, United Mine Workers of Am., 412 F.2d 165, 168 (D.C. Cir. 1969)); see also Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (CFGC) (same). Where, instead, a plaintiff seeks a “mandatory injunction”—i.e., one that would compel a positive act by the defendant—courts generally require the plaintiff to meet a higher standard and show “extreme or very serious damage” or that plaintiff is “clearly entitled” to immediate relief. Sweis v. U.S. Foreign Claims Settlement Comm’n, 950 F. Supp. 2d 44, 48 (D.D.C. 2013) (citations omitted)); see also Elec. Privacy Info. Ctr. v. U.S. Dep’t of Justice, 15 F. Supp. 3d 32 (D.D.C. 2014).
ARGUMENT I. Plaintiffs Are Unlikely To Succeed on the Merits Because They Lack Standing
To Seek Relief Against the District. Plaintiffs have not carried their burden to show they are likely to succeed on the merits of their case against the District, and that alone is fatal to their motion for a TRO. Demonstrating a likelihood of success on the merits is a free-standing
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requirement. Sherley, 644 F.3d at 393 (internal quotation marks omitted). Failing to meet the burden on this prong “is alone sufficient to defeat” a motion for emergency injunctive relief. Smith v. Henderson, 944 F. Supp. 2d 89, 96 (D.D.C. 2013). The Court need not conclude that plaintiffs will definitely lose on the merits, only that they have not met the demanding burden of showing a clear entitlement to immediate, extraordinary relief. Sweis, 950 F. Supp. 2d at 48. To overcome this burden, plaintiffs must show not merely that success is a “possibility” but that it is “likely.” Winter, 555 U.S. at 20-22. Plaintiffs have not shown a likelihood of success on the merits against the District for the following reasons.
As discussed below, plaintiffs’ Eighth Amendment claim against the District cannot be sustained. But, as an initial matter, plaintiffs must demonstrate standing to seek relief from the District. Every plaintiff in federal court must meet the constitutional minimum for Article III standing by showing an injury, causation and redressability. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). The third of these, redressability, requires showing “a likelihood that the requested relief will redress the alleged injury.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998). “[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Davis v. FEC, 554 U.S. 724, 734 (2008) (internal quotation marks omitted) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). “[T]he burden lies on the Plaintiffs to show that jurisdiction is proper as to the claims against each defendant ….” Gem Cnty. Mosquito Abatement Dist. v. E.P.A., 398 F. Supp. 2d 1, 7 n.5 (D.D.C. 2005).
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In particular, a plaintiff lacks standing to seek relief from any defendant who cannot provide the specific relief the plaintiff seeks. See Justice v. Kuhnapfel, 985 F. Supp. 2d 334, 337 (E.D.N.Y. 2013) (plaintiff could not seek injunction against state court and government officials to retain custody of child where “[b]oth the Court and Defendants lack the power to return [the child] to Plaintiff”); Mayo Clinic v. Elkin, Civil Action No. 09-322, 2010 WL 5421322, at *3 (D. Minn. Dec. 27, 2010) (quoting Toth v. United Auto. Aerospace & Agr. Implement Workers of Am., 743 F.2d 398, 404 (6th Cir. 1984)) (“A plaintiff may only obtain recovery from ‘a person or entity whose actions may be causally linked to the alleged injury, and from whom relief or remedy is possible.’”); Cerilli v. Cay, Civil Action No. 14-1551, 2015 WL 4603460, at *2 (D. Conn. Jul. 29, 2015) (plaintiff could not seek injunction against correctional facility custodial staff seeking changes to current medical treatment since “[t]his request … cannot be satisfied by the defendants, who are not medical staff and are located at different correctional facilities”). That is precisely the case here vis-à-vis the District.
To begin, plaintiffs have asked for a variety of injunctive relief measures, most of which would require Hope Village to adjust aspects of the living conditions inside the facility. See Compl. ¶ 103. Because the District is unable to make these changes directly, there is no relief the District can provide. See Cerilli, 2015 WL 4603460, at *2.9

9

As discussed below, the District cannot be vicariously liable either. See Section

III below.

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Plaintiffs also seek either a writ of habeas corpus or an injunction releasing them and others from Hope Village. See Compl. ¶¶ 104-05. Neither of the two plaintiffs, however, is in the custody of the District. See Compl. ¶¶ 25, 28 (stating that plaintiffs were transferred to Hope Village from federal correctional institutions). The District is without authority to release them. And although plaintiffs filed this case as a putative class action, “there is no class of plaintiffs before the Court at this time towards whom relief could be directed.” Russell v. Barry, Civil Action No. 87-2072, 1987 WL 15697, at *2 (D.D.C. Jul. 30, 1987). To the extent plaintiffs seek the release of others, this Court should not grant relief to parties not before it. See Zepeda v. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983) (“A federal court may issue an injunction if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons not before the court.”); Garnett v. Zeilinger, 301 F. Supp. 3d 199, 205 n.4 (D.D.C. 2018) (“[I]t is not clear that the Court can or should issue class-wide injunctive relief without a certified class.”); Dorfmann v. Boozer, 414 F.2d 1168, 1171 n.8 (D.C. Cir. 1969) (preliminary injunction “should not have been issued before the action was certified as a class action” where injunction “worked a transfer of money belonging to persons who were not within the jurisdiction of the court”).
To the extent plaintiffs ask the District to release as many people as possible so that the remaining residents at Hope Village can practice social distancing, DOC has no power to unilaterally release anyone in its custody beyond the authority granted to it by the COVID-19 Emergency Act—which only permits DOC to increase
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sentencing credits for those serving misdemeanor sentences. See D.C. Code § 24221.01c(c) (2020). Even if it were to use that authority to the fullest extent possible, the District could only release one individual from Hope Village; 19 of the 20 residents in its custody at Hope Village are pretrial detainees, and the District has no legal authority to release them.
Plaintiffs cannot show redressability and are therefore unable to show they have standing to seek any relief from the District. Without standing to seek relief, they cannot show a likelihood of success on the merits of their claims. II. Plaintiffs Are Unlikely To Succeed on the Merits Because They Cannot Show
the District Acted with Deliberate Indifference. Even if they have standing, plaintiffs fail to establish that the District violated the Eighth Amendment by subjecting them to constitutionally inadequate conditions of confinement. To establish an Eighth Amendment violation of this kind, plaintiffs must demonstrate “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Brown v. District of Columbia, 514 F.3d 1279, 1283 (D.C. Cir. 2008) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Here, plaintiffs cannot show that the District acted with “deliberate indifference” toward the risks posed by the COVID-19 pandemic. To show deliberate indifference under these circumstances, plaintiffs “ha[ve] to allege that officials had subjective knowledge of [a] serious medical need and recklessly disregarded the excessive risk to inmate health or safety from that risk.” Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Mere negligence is insufficient to show
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deliberate indifference. Brown, 514 F.3d at 1283. The test is a subjective one; “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [or she] must also draw the inference.” Farmer, 511 U.S. at 837.
DOC does not dispute the gravity of COVID-19 or its duty to ensure the wellbeing of individuals in its custody at Hope Village. See D.C. Code § 24-211.02(a). But plaintiffs are simply incorrect that the District has not taken adequate steps to address the risks posed by the pandemic. See Pls.’ Mem. in Support of App. for TRO [13] at 17-19. On the contrary, the record demonstrates that DOC investigated the conditions at Hope Village by conducting a site visit on March 26, 2020, at which it “found that Hope Village is in compliance with hygiene and cleaning products for staff and residents.” See Alexander Decl. ¶ 14. These findings were confirmed by CIC’s independent site visit on March 26, 2020. See CIC Report at 4. The record demonstrates that the District has met its obligation to ensure that Hope Village is in compliance with the Contract and is taking appropriate actions to address any health and safety concerns brought to its attention. See DOCOCC Report at 2; Contract at 15-16 (stating Hope Village’s obligation to provide adequate health and safety amenities); id. at 22 (requiring Hope Village to ensure residents’ access to medical care). Furthermore, since the outbreak, DOC officials have been in daily contact with Hope Village to monitor its contractual compliance. Alexander Decl. ¶ 11. The District has conducted active oversight of the health and safety of Hope Village’s actions to ensure the safety of its residents during the pandemic. Any
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assertion that the District has shown deliberate indifference to the risks posed by COVID-19 is belied by the facts.
Although the “deliberate indifference” inquiry is ultimately subjective, courts may properly go beyond officials’ mental states and also consider “the constraints facing the official[s]” for context. Wilson v. Seiter, 501 U.S. 294, 303 (1991); see Helling v. McKinney, 509 U.S. 25, 37 (1993) (“The inquiry into [deliberate indifference] also would be an appropriate vehicle to consider arguments regarding the realities of prison administration.”). Here, the significant constraints on housing those in DOC custody and the measures the District has ensured Hope Village is taking (in spite of those constraints) preclude a finding of deliberate indifference. See Hines v. Youssef, Civil Action No. 13-00357, 2015 WL 164215, at *5 (E.D. Cal. Jan. 13, 2015) (finding no deliberate indifference when “Plaintiff has failed to show that the policy Plaintiff contends should have been adopted was within the range of policies that the proposed Defendants could reasonably have promulgated.”). For example, Hope Village is designed for residents to live in shared spaces. See Contract at 15. To adhere as closely as possible to social distancing recommendations, Hope Village has made more space available for meals and offered private rooms for individuals who show symptoms of an illness. Alexander Decl. ¶ 13. Additionally, group sessions—for drug treatment and skills building—are being conducted in smaller groups with residents siting several seats apart. Id. ¶ 6.
The rapidly changing nature of public health recommendations is also significant. When applying the deliberate indifference standard, the relevant official’s
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Case 1:20-cv-00890-RC Document 28 Filed 04/06/20 Page 21 of 27
state of mind “must be measured by the official’s knowledge at the time in question, not by ‘hindsight’s perfect vision.’” Kulkay v. Roy, 847 F.3d 637, 643 (8th Cir. 2017); see also Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) (Section 1983 complaint against prison doctor properly dismissed where “hindsight suggests that [his] treatment decisions may have been mistaken, even gravely so”). In its oversight of Hope Village, the District has reacted to new information swiftly and recommended policies aimed at limiting COVID-19’s potential harm to residents based on the best available knowledge. See DOCOCC Report at 3; Alexander Decl. ¶ 14. As noted, the District performs monthly inspections of Hope Village and quickly arranged an additional visit to the site in light of the pandemic to ensure Hope Village was taking adequate measures. Alexander Decl. ¶ 8. Additionally, DOC has increased its monitoring of Hope Village’s compliance with the Contract since the COVID-19 outbreak, including daily contact with Hope Village to discuss the status of the residents’ safety and measures taken to mitigate the risk. Id. ¶ 11. These measures show that the District’s oversight of the conditions at Hope Village have evolved with new information and ensures that Hope Village continues to have the best available information for updating its policies and keeping pace with the changing informational landscape.
Plaintiffs cannot show they are entitled to a TRO without showing it is “likely,” and not merely “possible,” that their claims will succeed. Winter, 555 U.S. at 20-22. Because they have not done so with respect to their Eighth Amendment claim against the District, their motion for a TRO should be denied.
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III. Plaintiffs Are Unlikely To Succeed Against the District Because They Cannot Establish Municipal Liability Under Section 1983. In addition, plaintiffs have not alleged any facts as to the District’s liability
under Section 1983. Municipal liability under Section 1983 cannot be predicated on a respondeat superior theory. Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 690-91 (1978). Rather, “[p]laintiffs who seek to impose liability on local governments under § 1983 must prove that ‘action pursuant to official municipal policy’ caused their injury.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting Monell, 436 U.S. at 691).
The D.C. Circuit has identified four ways official municipal policy can be demonstrated: (1) “the explicit setting of a policy by the government that violates the Constitution;” (2) “the action of a policy maker within the government”; (3) “the adoption through a knowing failure to act by a policy maker of actions by his subordinates that are so consistent that they have become ‘custom,’”; and (4) “the failure of the government to respond to a need (for example, training of employees) in such a manner as to show ‘deliberate indifference’ to the risk that not addressing the need will result in constitutional violations.” See Baker, 326 F.3d at 1306-07 (citations omitted). Each theory has its own “elements,” which a Section 1983 plaintiff bears the burden of pleading. Blue v. District of Columbia, 811 F.3d 14, 20 (D.C. Cir. 2015); accord Hodges v. District of Columbia, 975 F. Supp. 2d 33, 54 (D.D.C. 2013) (“The fact that [a] claim arises under section 1983 does not relieve [plaintiff] of the obligation to satisfy the criteria established in Iqbal and Twombly.”).
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Plaintiffs have alleged no theory that their Eighth Amendment claim against the District arises from a policy, the actions of a policymaker, a custom, or the failure to train employees. Nor could they. As discussed above, the District did its due diligence to ensure that Hope Village was responding appropriately to the COVID-19 outbreak. See Section II above. The deficiencies plaintiffs allege in Hope Village’s COVID-19 response do not implicate the District, and plaintiffs have not articulated any theory of how it could be otherwise. See City of St. Louis v. Praprotnik, 485 U.S. 112, 128 (1988) (city not liable where former municipal employee failed to “contend that anyone in city government ever promulgated, or even articulated” an “unconstitutional municipal policy”); Blue, 811 F.3d at 20 (“If the plaintiff fails to identify the type of municipal policy at issue, the court would be unable to determine … whether the plaintiff had provided plausible support for her claim. Although the court could try to surmise which theory of municipal liability has the strongest support in the complaint, this is not [the court’s] role”). IV. Plaintiffs Are Unlikely To Succeed in Their Request for Habeas Relief Because
They Have Not Sued the DOC Warden. As discussed above, plaintiffs are both being held in federal custody, not in the custody of DOC. See Section I above. But regardless, to the extent plaintiffs seek the release of themselves or others through a writ of habeas corpus, they must seek that relief from the DOC Warden, who is not named as a defendant in this case. See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (“[I]n habeas challenges to present physical confinement—‘core challenges’—the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not … some
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other remote supervisory official.”).10 “[T]here is generally only one proper respondent to a given prisoner’s habeas petition,” namely, “‘the person’ with the ability to produce the prisoner’s body before the habeas court.” Id. at 434-35 (quoting 28 U.S.C. § 2242). See also Stokes v. United States Parole Comm’n, 374 F.3d 1235, 1238 (D.C. Cir. 2004) (limitation of habeas relief to the one individual holding the petitioner in custody is “inflexible”). In addition to the deficiencies identified above, plaintiffs cannot succeed on the merits if the named defendants cannot provide the relief they seek. See Section I above. V. Plaintiffs Have Not Shown That the Remaining Factors Weigh in Their Favor.
Aside from the merits of plaintiffs’ claims, “failure to demonstrate irreparable harm is grounds for refusing to issue a [TRO], even if the other three factors … merit such relief.” Nat’l Min. Ass’n v. Jackson, 768 F. Supp. 2d 34, 50 (D.D.C. 2011) (citation and internal quotation marks omitted); see also CFGC, 454 F.3d at 297 (observing that there is “a high standard for irreparable injury”). “[P]roving irreparable injury is a considerable burden, requiring proof that the movant’s injury is certain, great and actual—not theoretical—and imminent, creating a clear and present need for extraordinary equitable relief to prevent harm.” Power Mobility Coal. v. Leavitt, 404 F. Supp. 2d 190, 204 (D.D.C. 2005) (citations and internal quotation marks omitted). If a party fails to make a sufficient showing of irreparable injury, a court may deny a motion for preliminary relief without considering the other factors. CityFed Fin.
10 An exception to this rule exists “in the military context where an American citizen is detained outside the territorial jurisdiction of any district court.” See id. n.9.
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Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995). Additionally, injunctive relief that “goes well beyond simply maintaining the
status quo … is particularly disfavored.” Stanley v. Univ. of S. Calif., 13 F.3d 1313, 1320 (9th Cir. 1994). It is a “judicially inflicted injury,” and many circuits therefore make the movant’s already high burden even “more stringent.” O Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 978 (10th Cir. 2004) (citing cases); see also Sweis, 950 F. Supp. 2d at 47 (where relief requested would change rather than preserve the status quo, plaintiffs must show “extreme or very serious damage” or that they are “clearly entitled” to immediate relief).
To date, there have been no confirmed cases of COVID-19 in Hope Village, see Alexander Decl. ¶ 13, and efforts are underway to minimize the risk that virus transmission occurs. See Section III above. Plaintiffs have not shown that they will suffer imminent harm absent an order requiring the release of Hope Village residents in DOC’s custody; as noted above, the one individual in DOC custody serving a misdemeanor sentence has filed an unopposed motion in Superior Court seeking his release. Plaintiffs fail to meet their burden of demonstrating irreparable harm.
Even if plaintiffs could show a likelihood of success on the merits and that irreparable harm would result without a TRO, they must additionally show both that “the balance of equities tips in their favor,” and that “an injunction is in the public interest.” Sherley, 644 F.3d at 392; In re Navy Chaplaincy, 738 F.3d at 428 (plaintiffs cannot use strong showing on some factors to make up for weak showing on others). These two factors “merge when the Government is the opposing party” and are thus
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analyzed together. Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 10 (D.C. Cir. 2019) (citation and internal quotation marks omitted). “[W]here the Court has a less intrusive means” of ensuring legal compliance, “the public interest would weigh towards choosing such options, especially where … the plaintiffs seek a mandatory (‘do this’) rather than prohibitory (‘don’t do this’) injunction.” Garnett v. Zeilinger, 313 F. Supp. 3d 147, 160 (D.D.C. 2018).
DOC recognizes the gravity of COVID-19 and its duty to ensure the well-being of its 20 residents at Hope Village. However, given that there have been no confirmed cases of COVID-19 at Hope Village, requiring DOC to unilaterally release those residents—even assuming it had such authority—would present an unwarranted intrusion into the agency’s operations. There is a well-established public interest in permitting the government to carry out its authorized functions where doing otherwise would needlessly upend its operations. See Benisek v. Lamone, 138 S. Ct. 1942, 1945 (2018) (finding lower court could have reasonably concluded that ordering redrawing of electoral district map would have contravened public interest where “injunction might have worked a needlessly chaotic and disruptive effect upon the electoral process” (citation and internal quotation marks omitted)); Garnett, 313 F. Supp. 3d at 160 (public interest “would disfavor the Court’s interference” in legal process of administering food stamp benefits “in light of [federal agency’s] expertise and role” in carrying it out). This is especially true in the midst of a public health emergency. The balance of the equities and the public interest weigh in DOC’s favor and counsel against granting a TRO.
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CONCLUSION

For the foregoing reasons, the Court should deny plaintiffs’ motion for a

temporary restraining order against the District.

Dated: April 6, 2020.

Respectfully submitted,

KARL A. RACINE Attorney General for the District of Columbia

TONI MICHELLE JACKSON Deputy Attorney General Public Interest Division

/s/ Fernando Amarillas FERNANDO AMARILLAS [974858] Chief, Equity Section

/s/ Micah Bluming__ MICAH BLUMING [1618961] PAMELA DISNEY [1601225] Assistant Attorneys General ANDREW J. SAINDON [456987] Senior Assistant Attorney General 441 Fourth Street, N.W., Suite 630 South Washington, D.C. 20001 (202) 724-7272 (202) 730-1833 (fax) micah.bluming@dc.gov pamela.disney@dc.gov andy.saindon@dc.gov

Counsel for Defendants

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EXHIBIT 1

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THURMAN WILLIAMS, et al., Plaintiffs,
v. FEDERAL BUREAU OF PRISONS, et al.,
Defendants.

Civil Action No. 20-00890 (RC)

DECLARATION OF RENEE ALEXANDER Pursuant to 28 U.S.C. § 1746, I, Renee Alexander, declare and state as follows: 1. I am over the age of eighteen (18) years, competent to testify to the matters contained in this declaration, and testify based on my personal knowledge and information, including information provided to me by other District of Columbia employees in the course of my official duties. 2. I am the Chief of the Office of Community Corrections of the District of Columbia Department of Corrections (DOC). I have worked for DOC for approximately one year; prior to that, I worked in similar positions in the Maryland prison system for more than 25 years. 3. My staff and I administer the contracts that DOC has with two halfway houses in the District of Columbia (the District): Hope Village for men and Fairview for women. We review inmate files and cases to make sure placements are appropriate, oversee the halfway houses’ compliance with the contract, and regularly inspect the facilities for contract compliance.

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4. I provide this declaration to inform the Court about DOC’s contract with Hope Village and DOC’s monitoring of living conditions there.
5. DOC has had a contract with Hope Village for many years; it is the only accredited halfway house for men in the District. DOC contracts with Hope Village to provide pretrial and pre-release community correctional services.
6. DOC’s current contract with Hope Village was executed in August 2014 and has been extended through a series of option years and modifications. Most recently, DOC extended the contract until May 31, 2020. The contract requires Hope Village, among other things, to comply with DOC policies and program statements and to conform to American Correctional Association (ACA) Standards and Accreditation.
7. Typically, DOC contracts for approximately 30 residents at Hope Village at a time, but DOC’s population has been lower recently. Currently, DOC has placed 20 residents at Hope Village—one sentenced misdemeanant and 19 court-ordered pre-trial defendants.
8. DOC inspects Hope Village, on average, every month. On rare occasions in the past, living conditions were found not to be up to contract standards. When that happens, DOC alerts the Hope Village staff to the deficiencies and requires remedial action.
9. If conditions were found to be truly intolerable, DOC could direct Hope Village to remediate issues immediately or move residents to another room or apartment at the facility. DOC also has the option to reduce the contract price, charge
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the contractor the costs incurred by the District directly related to the lack of performance, or terminate the contract for default. If that were to occur, for pretrial residents, DOC would notify the judge who issued the order in the resident’s case, and the judge would determine what to do with the resident. For residents completing misdemeanor sentences, DOC would transfer the resident back to the Central Detention Facility (CDF) or Correctional Treatment Facility (CTF) to finish the rest of his sentence.
10. DOC has been closely monitoring Hope Village’s compliance with the contract since the COVID-19 outbreak. My staff and I are in daily contact with Hope Village about the outbreak.
11. I personally conducted a walk-through with my staff of Hope Village on March 26, 2020, to investigate claims of a lack of hygienic and cleaning products. Attached to this declaration is a copy of the Inspection Report we issued following the walk-through.
12. As noted in the Inspection Report, we found that the facility had ample quantities of hygiene and cleaning products for both staff and residents. The facility also had a large quantity of masks and gloves for staff and residents.
13. Residents and staff are regularly informed about conditions of the outbreak and were briefed in meetings (one for residents and one for staff) on how to take proper precautions. As described in the Inspection Report, Hope Village has taken various measures to reduce the risk of spreading COVID-19, such as
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Case 1:20-cv-00890-RC Document 28-1 Filed 04/06/20 Page 5 of 9 eliminating the use of shared serving utensils at meals and adding additional dining space so that residents can practice social distancing.
14. DOC made specific recommendations to Hope Village after its walkthrough regarding screening and providing more information to residents about the outbreak. Ultimately, DOC found that Hope Village has more than adequate supplies to keep staff and residents safe during the COVID-19 Pandemic.
I declare under the penalty of perjury that the foregoing is true and correct to the best of my knowledge, information, and belief.
Executed on ______4_/_6_/_2__0_2__0______ __________________________
RENEE ALEXANDER
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ATTACHMENT A

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 Case 1:20-cv-00890-RC Document 29 Filed 04/06/20 Page 1 of 29

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THURMAN WILLIAMS, et al., Plaintiffs,
v. FEDERAL BUREAU OF PRISONS, et al.,
Defendants.

Civil Action No. 20-0890 (RC)

MEMORANDUM OF POINTS AND AUTHORITIES BY THE BUREAU OF PRISONS AND ITS DIRECTOR IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER

April 6, 2020

TIMOTHY J. SHEA United States Attorney
DANIEL F. VAN HORN Chief, Civil Division
JOHNNY H. WALKER Assistant United States Attorney
United States Attorney’s Office 555 4th Street, N.W. Washington, District of Columbia 20530 Telephone: 202 252 2575 johnny.walker@usdoj.gov
Counsel for Defendants the Federal Bureau of Prisons and the Director of the Federal Bureau of Prisons

Case 1:20-cv-00890-RC Document 29 Filed 04/06/20 Page 2 of 29
CONTENTS INTRODUCTION ...........................................................................................................................1 BACKGROUND .............................................................................................................................2
A. Residential Reentry Centers.....................................................................................2 B. Hope Village ............................................................................................................3 C. COVID-19 and the Bureau’s Response ..................................................................4 D. Plaintiffs and Their Allegations .............................................................................11 STANDARD ..................................................................................................................................12 ARGUMENT .................................................................................................................................14 I. Plaintiffs are unlikely to succeed on the merits .................................................................14 A. The BOP has not shown deliberate indifference but has taken appropriate
measures to protect the health of Hope Village residents and the public ..............14 B. Releasing residents from Hope Village would not redress the alleged injuries;
instead, it would likely result in injury to some residents......................................19 C. The BOP lacks authority to unilaterally truncate judicially imposed
sentences, which can only be modified by the sentencing court ...........................20 II. Plaintiffs have not established imminent irreparable harm................................................22 III. Public health and safety would not be served by granting the requested
preliminary relief ...............................................................................................................24 IV. Plaintiffs have not provided a sufficient basis for preliminary class certification,
and class-wide relief would likely harm many Hope Village residents.............................25 CONCLUSION ..............................................................................................................................27
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INTRODUCTION Plaintiffs Thurman Williams and Ronald Boatright are two federal prisoners currently housed at Hope Village, a residential reentry center that contracts with the Federal Bureau of Prisons to house inmates transitioning from incarceration to life in the community. Arguing that the current sleeping arrangements and dining schedule at Hope Village do not allow them to practice the social distancing recommended by the Centers for Disease Control and Prevention to suppress the spread of the novel coronavirus, Messrs. Williams and Boatright seek an emergency injunction requiring the Bureau to immediately release and remove from the facility a substantial (but unspecified) percentage of Hope Village’s residents. Plaintiffs also seek an order to correct alleged deficiencies in the center’s cleaning and hygiene practices. Alternatively, they would like their own release. The requested injunction should be denied because these claims are unlikely to succeed. First, Plaintiffs cannot possibly show that the Bureau has been deliberately indifferent with respect to the coronavirus pandemic. It has taken significant steps to move suitable residents to home confinement and to ensure the health, safety, and wellbeing of its inmate population, including those living at Hope Village. Indeed, just recently, the center was inspected by the Corrections Information Council, an independent monitoring body, which found no safety or sanitary issues. And the facility has not had any staff member or inmate contract the coronavirus. The three inmates who have shown symptoms consistent with the virus were promptly isolated and ultimately tested negative. In addition, Plaintiffs have not shown that their own release from Hope Village into the community (where the virus is spreading rapidly) would better protect them from contracting the virus. And the Bureau lacks the authority to effectuate the primary relief that Plaintiffs seek against the Bureau: the massive and immediate removal of other inmates from the facility where they live.

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Moreover, given the precautions taken by the Bureau and the lack of any confirmed cases (and the fact that Plaintiffs have not articulated any heightened risk factors that would make them particularly susceptible to the coronavirus), Plaintiffs cannot demonstrate a likelihood of irreparable injury on their part. On the other hand, the relief that they seek may very well cause harm to the many inmates that they seek to suddenly remove from the center. If such relief were to be granted, many inmates may well find themselves homeless without access to food, shelter, or medical care in the midst of the pandemic’s spread through the District of Columbia. Not only would that be detrimental to those inmates, it would undermine public health efforts and facilitate the spread of the virus throughout society.
Along those same lines, because they have failed to account for the interest of those who would suffer from their requested relief, Plaintiffs are not adequate representatives of the class they seek to provisionally certify.
BACKGROUND A. Residential Reentry Centers The Federal Bureau of Prisons (“the Bureau”), “to the extent practicable, ensure[s] that a person serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community.” 18 U.S.C. § 3624(c). To that end, the Bureau utilizes privately contracted residential reentry centers (sometimes called halfway houses) to provide a safe, structured, and supervised environment—along with assistive programs and services—to inmates who are nearing release. Gustin Decl. ¶ 6. Residential reentry centers help inmates rebuild ties to the community and facilitate supervision of ex-offenders’ activities as they readjust to life outside of custody. Id. The Bureau also reserves capacity at
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residential reentry centers for use by federal courts as an intermediate sanction during supervision or probation. Id.
The Bureau contracts with private third parties to staff and manage residential reentry centers. Gustin Decl. ¶ 7. These contractors are solely responsible for ensuring the safe and orderly operation of the centers on a day-to-day basis, pursuant to standards set forth in their contracts with the Bureau. Id. The Bureau has Residential Reentry Management field offices located throughout the United States that monitor these residential reentry centers to ensure that they are in compliance with their contractual obligations and guidance provided by the Bureau. Id.
B. Hope Village Hope Village is a residential reentry center located in Southeast Washington, D.C. Gustin Decl. ¶ 12. It has a contract with the Bureau that is currently set to expire on April 30, 2020; however, in light of the pandemic, the Bureau anticipates that it will seek to extend that contract in order to ensure the safety and stability of the residents at Hope Village. Id. Hope Village houses a maximum of 250 male federal inmates. Id. Currently, there are 192 federal inmates living at Hope Village, with 8 of those cases being individuals placed at the center as a sanction. Id. Another 36 federal inmates are on home confinement and report to Hope Village for supervision and services. Id. Pursuant to the contract with Hope Village, the Bureau conducts an announced full monitoring of Hope Village annually with unannounced interim monitoring conducted quarterly. Gustin Decl. ¶ 32. Full monitoring includes monitoring the following areas: programming to assist the offenders in their reentry into the community, food services, medical services, staff integrity, discipline, life safety/sanitation, offender accountability, and communication between the contractor and the community corrections staff. Id. The last full monitoring occurred from
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September 17 through 19, 2019. Id. The Bureau identified no deficiencies during this monitoring. Id. An interim monitoring by the BOP and the D.C. Corrections Information Council (“CIC”)1 occurred from February 4 through 5, 2020. Id. ¶ 33.
C. COVID-19 and the Bureau’s Response The world is facing a menacing global threat. In December 2019, reports of a respiratory disease caused by a novel coronavirus began to emerge out of Wuhan, Hubei Province, China. The rapid spread of the virus, named “severe acute respiratory syndrome coronavirus 2” (“SARS-CoV2”), and the disease it causes, called “coronavirus disease 2019” (“COVID-19”), pose a publichealth risk unparalleled in modern times. Although the complete clinical picture is not fully understood, the virus is transmitted easily and quickly, and can have a high mortality rate for some of the most vulnerable members of society; there is currently no proven vaccine or therapeutic treatment. Worldwide, the numbers of infections and fatalities are climbing at an alarming rate, and threaten to overwhelm available medical resources in many locations. On March 11, 2020, the World Health Organization classified the outbreak as a pandemic. In the United States, the outbreak is affecting all 50 states and the District of Columbia, with over 239,000 confirmed cases—more than any other nation—and over 5,400 deaths as of April 3, 2020.2 On January 31, 2020, Health and Human Services Secretary Alex M. Azar II declared a public health emergency for the United States to aid the nation’s healthcare community in
1 The CIC is an independent monitoring body mandated by Congress and the D.C. Council to inspect, monitor, and report on conditions of confinement at facilities where D.C. residents are incarcerated. See https://cic.dc.gov/page/about-cic. 2 See https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html (last visited Apr. 3, 2020).
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responding to COVID-19.3 The President declared a national emergency effective March 1, 2020, see 85 Fed. Reg. 15,337 (Mar. 18, 2020), and every U.S. state and territory and the District of Columbia has declared an emergency as well.
The District of Columbia announced its first confirmed case of COVID-19 on March 7, 2020. Giftos Decl. ¶ 6. As of April 3, 2020, the District has experienced 902 confirmed cases of COVID-19 and has reported 21 deaths related to the disease.4 The mayor of the District of Columbia, Muriel Bowser, declared a state of emergency and a public health emergency on March 11, 2020. See Mayor’s Orders 2020-045 & 2020-046 (Mar. 11, 2020).5 On March 30, Mayor Bowser issued a stay-at-home order, requiring “all individuals anywhere in Washington, DC, to stay in their residences except to perform” certain specifically exempted activities. See Mayor’s Order 2020-054 (Mar. 30, 2020).6
Although much about the virus remains unknown, the Centers for Disease Control and Prevention (“CDC”) advises that the virus is believed to spread from person to person in close contact through respiratory droplets produced when an infected person coughs, sneezes, or talks.7 Some studies suggest that the virus may be spread even by persons who are not showing symptoms. Id. The CDC therefore recommends that “[m]aintaining good social distance (about 6 feet) is very important in preventing the spread of COVID-19.” Id. The CDC has also noted that “[i]t may be
3 See https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx (last visited Apr. 3, 2020). 4 See https://coronavirus.dc.gov/release/coronavirusdata-april-3-2020 (last visited Apr. 4, 2020). 5 See https://coronavirus.dc.gov/release/mayor-bowser-declares-public-health-emergency (last visited Apr. 4, 2020). 6 See https://coronavirus.dc.gov/release/mayor-bowser-issues-stay-home-order (last visited Apr. 4, 2020). (last visited Apr. 4, 2020). 7 See https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last visited Apr. 4, 2020).
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possible” that a person can get COVID-19 by touching a surface that has the virus on it and then touching his or her own mouth, nose, or possibly eyes. Id. The CDC states, however, that this is not thought to be “the main way that the virus spreads.” Id. The CDC recommends that people frequently wash their hands with soap and water or an alcohol-based hand rub. Id. It also recommends cleaning frequently touched surfaces. Id.
The necessary response from all levels and institutions of government is urgent and massive. The federal government has implemented sweeping international travel restrictions and closed our land borders to nonessential travel, and public health officials are focused on slowing the spread and mitigating the impact of this disease across the United States. See, e.g., 85 Fed. Reg. 16,548 (Mar. 24, 2020) (travel restrictions with respect to Canada); 85 Fed. Reg. 16,547 (Mar. 24, 2020) (travel restrictions with respect to Mexico); 85 Fed. Reg. 15,045 (Mar. 16 2020) (Presidential Proclamation suspending entry of certain foreign nationals who have recently visited the Schengen Zone); Executive Order 13,909, 85 Fed. Reg. 16,227 (Mar. 23, 2020) (delegation of certain Defense Production Act authorities); see also White House Coronavirus Guidelines for America, available at https://www.whitehouse.gov/briefings-statements/coronavirus-guidelinesamerica/. The CDC is employing its expertise to provide public-health guidance applicable to a wide range of institutions,8 and the Government is committed to working closely with state, local, tribal, territorial and other partners to respond to this dire threat.
The Bureau, for its part, has been assessing on an ongoing, emergent basis how best to ensure the safety and health of its staff and inmates from COVID-19 while carrying out is mission critical functions. Gustin Decl. ¶ 35. The Bureau convened a task force as early as January 2020
8 See https://www.cdc.gov/coronavirus/2019-ncov/communication/guidance-list.html (last visited Apr. 2, 2020)
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to begin strategic planning for the spread of the virus and to build on the agency’s existing contingency plans for epidemics. On March 13, 2020, the Bureau instituted significant measures to prevent the spread of COVID-19 in its facilities, including temporary restrictions on visitation, restricting inmate movement to only required and mission-essential transfers, increased health screening of staff and inmates, and increased sanitary measures. It has also instituted a mandatory 14-day quarantine for all new inmates entering the Bureau from outside a Bureau facility.9 Effective April 1, 2020, the Director of the Federal Bureau of Prisons ordered every inmate at every institution to be secured in their quarters for fourteen days to decrease the spread of the disease.10
At the Attorney General’s direction, the Bureau has also significantly increased the number of inmates on home confinement by over 40% and continues to screen all inmates to determine whether they are appropriate for home confinement.11 By memorandum dated March 26, 2020, the Attorney General directed the Bureau to “prioritize the use of [its] various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID19 pandemic.” The Attorney General directed the Bureau to consider the totality of the circumstances of each inmate, the statutory requirements for home confinement, and a series of factors including the age and vulnerability of the inmate, the security level of the facility holding the inmate, the inmate’s conduct while incarcerated, the inmate’s score under the Prisoner
9 https://www.bop.gov/resources/news/pdfs/20200324_bop_press_release_covid19_update.pdf (last visited Apr. 4, 2020). 10 See https://www.bop.gov/resources/news/20200331_covid19_action_plan_5.jsp (last visited Apr. 4, 2020). 11 See https://www.bop.gov/resources/news/20200405_covid19_home_confinement.jsp (last visited Apr. 5, 2020).
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Assessment Tool Targeting Estimated Risk and Needs, whether the inmate has a demonstrated and verifiable reentry plan that will prevent recidivism and ensure public safety (including verification that the conditions under which the inmate would be confined upon release would present a lower risk of contracting COVID-19 than the inmate would face at their current facility), and the inmate’s crime of conviction.12
Generally, the Bureau may place a prisoner in home confinement only for the shorter of 10 percent of the term of imprisonment or 6 months. 18 U.S.C. § 3624(c)(2). Under the CARES Act, signed into law on March 27, 2020, however, “if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement.” Pub. L. 116-136, § 12003(b)(2). On April 3, 2020, the Attorney General made that finding and authorized the Director of the Bureau to immediately maximize appropriate transfers to home confinement of all appropriate inmates held at FCI Oakdale, FCI Danbury, FCI Elton, and other similarly situated Bureau facilities where COVID-19 is materially affecting operations. Gustin Decl. ¶ 26.
Pursuant to the Attorney’s General’s direction, the Bureau will continue to monitor the situation at Hope Village (as at all of its facilities) and will take swift action to exercise its expanded home confinement authority for any inmate who is found to be at risk for COVID-19 and suitable for home confinement. Gustin Decl. ¶ 27. There are, however, a number of reasons that an inmate otherwise statutorily eligible for home confinement may not have an approved release plan allowing them to be placed in home confinement. They may not have a home
12 See https://www.bop.gov/resources/news/pdfs/20200405_covid-19_home_confinement.pdf (last visited Apr. 5, 2020).
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telephone, the residence may not be approved as suitable by Hope Village or U.S. Probation staff, the individual may be homeless, or the individual may have recent discipline for conduct (such as use of drugs or alcohol or fighting) prohibiting placement in home confinement. Id. ¶ 29; see also Bureau Program Statement No. 7320.01, Home Confinement ¶ 8.b. (Aug. 1, 2016).13 The requirement of a home telephone is particularly needed so that Hope Village staff can verify the inmate’s presence in the home by speaking to him on the telephone. Gustin Decl. ¶ 30. Hope Village staff also conduct a visit14 to the proposed release residence to ensure that the house is otherwise suitable (i.e., no firearms, alcohol, appropriate space for the individual, approved to reside at the location, etc.). Id. Once Hope Village staff approve a release plan, they submit it to the Residential Reentry Management Branch at the Bureau for final review and approval. Id. The Bureau reviews submissions for home confinement submitted by Hope Village on a bi-weekly basis. Id. ¶ 31. It also reviews case notes and program plans during regular monitoring activity. Id. If an inmate meets the criteria for home confinement, he will be placed on home confinement. Id.
In addition to expanding and prioritizing the placement of eligible inmates on approved home confinement, the Bureau is also taking measures to ensure that staff and inmates housed at residential reentry centers are not at risk for contracting COVID-19. The Bureau has provided guidance to all residential reentry center contractors, including Hope Village, regarding COVID19 precautions and modified operations. Gustin Decl. ¶ 36. This guidance includes memoranda dated March 13, 2020, and March 24, 2020, from the Administrator of the Residential Reentry Management Branch. Id.; Ex. 1, Gustin Memo. (Mar. 13, 2020); Ex. 2, Gustin Memo. (Mar. 24,
13 See https://www.bop.gov/policy/progstat/7320_001_CN-1.pdf (last visited Apr. 5, 2020). 14 In order to limit in-person contact, the Bureau is allowing these site visits to be conducted remotely by Skype and for interviews with host families to be conducted by telephone. See Ex. 3, CIC Rep. at 5.
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2020). As detailed in these memoranda, among many other things, the Bureau has restricted visitation, instructed that facilities should implement regular daily temperature testing and screening for COVID-19 symptoms for all residents and staff and the immediate isolation of any resident of staff exhibiting symptoms, and has suspended the need for inmates to make subsistence payments. Exs., 1, 2. The Bureau has also provided its residential reentry centers with copies of the CDC guidance for correctional facilities, a form for use in screening visitors for COVID-19, and other materials produced by the Bureau on fighting the spread of the virus. Gustin Decl. ¶ 36. The Bureau’s guidance also includes an attachment to its contract with Hope Village regarding continuing contract performance during a pandemic influenza or other national emergency. See Ex. 4. This attachment requires, among other things, that Hope Village encourage its staff to follow preventative measures as advised by public health services.. Id.
Further, the Bureau is aware that the CIC conducted an announced visit of Hope Village on March 25, 2020, in response to complaints about the center’s efforts to prevent the spread of COVID-19. Gustin Decl. ¶ 34. That report concluded, among other things, that Hope Village is (1) attempting to achieve social distancing by opening up a second dining area in a vacant apartment, (2) had an adequate supply of hygiene and cleaning products for staff and residents, (3) was cleaning high-traffic areas including light switches and door handles more frequently, (4) screening all incoming inmates (including temperature and symptom checks), and (5) are operating smaller group sessions so that residents can sit several chairs apart. See Ex. 3, CIC Rep. at 3–6. The Bureau credits the CIC report and has no reason to doubt the accuracy of its conclusions. Gustin Decl. ¶ 34. The Bureau has not conducted an independent visit to the facility to investigate the complaints because visits are generally disruptive to the program, as visitors must be screened and escorted within the facility. Id. Moreover, a duplicative in-person visit would be contrary to
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CDC guidelines advising limiting visits to group facilities and would increase the risk of introducing COVID-19 to the facility. Id.
As of the time of this filing, there is no indication that any Hope Village staff or resident has or has had COVID-19. Gustin Decl. ¶ 37. To date, three residents at Hope Village have shown symptoms that are consistent with COVID-19. Id. Each of those residents were isolated and tested for the virus. Id. All three of those tests came back negative. Id.
D. Plaintiffs and Their Allegations Plaintiffs are two residents serving federal sentences at Hope Village. Plaintiff Thurman Williams is 49 years old. Williams Decl. ¶ 1. He was convicted of attempted distribution of cocaine and voluntary manslaughter while armed in the D.C. Superior Court and of assault with a dangerous weapon on a correctional officer in the United States District Court for the Eastern District of Virginia. Gustin Dec. ¶ 38. He was sentenced to 45-month and life terms of imprisonment by the D.C. Superior Court and to a 100-month term of imprisonment by the Eastern District of Virginia. Id. He is scheduled for release on December 17, 2020, and is not currently eligible for home confinement because he has not provided a release plan. Id.; see also Williams Decl. ¶ 3. Plaintiff Ronald Boatright is 36 years old. Boatright Decl. ¶ 1. He was convicted of a supervised-release violation and of conspiracy to distribute a controlled substance by the United States District Court for the Middle District of Pennsylvania and sentenced to 128 months in prison. Gustin Decl. ¶ 39. His projected release date is September 13, 2020. Id. Anthony Pleasant, who submitted a declaration on behalf of Plaintiffs, is 33 years old. Pleasant Decl. ¶ 1. The Superior Court of the District of Columbia revoked his supervision, finding that he had violated the terms of his supervised release for his previous conviction for armed
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robbery and second degree murder while armed. Gustin Decl. ¶ 40. He is serving a ten-month sentence and is projected for release on April 14, 2020. Id.
Plaintiffs allege that conditions at Hope Village are not in line with CDC guidance for preventing the spread of COVID-19. Specifically, Plaintiffs allege that residents at Hope Village must sleep in close quarters with roommates, eat together, and share bathrooms, Compl. ¶ 6; must clean their own residences, id. ¶ 7; are no longer permitted to come and go from the center, id. ¶ 8; and do not have an on-site medical team to quickly test those with COVID-19 symptoms, id. ¶ 10. They seek an immediate temporary restraining order requiring the Bureau to release enough inmates from their sentences so that “the remaining people can be housed safely and in compliance with CDC guidance at Hope Village,” clean the residents’ rooms daily (rather than require the residents to do it themselves), reduce the number of residents sharing bedrooms, reduce the number of residents sharing bathrooms, provide residents with cleaning products, ensure that those handling food have been tested for COVID-19,15 stop admitting new residents to Hope Village, provide an on-site medical team,16 screen everyone entering Hope Village for COVID-19 symptoms, screen residents who complain of COVID-19 symptoms and implement isolations, and post signage to alert residents to the symptoms of COVID-19. ECF No. 11-2.
STANDARD Plaintiffs seek a temporary restraining order. “The standard for issuance of the extraordinary and drastic remedy of a temporary restraining order or a preliminary injunction is very high.” Jack’s Canoes & Kayaks, LLC v. Nat’l Park Serv., 933 F. Supp. 2d 58, 75 (D.D.C.
15 According to the CDC, “there is no evidence to support transmission of COVID-19 associated with food.” See https://www.cdc.gov/coronavirus/2019-ncov/faq.html (last visited Apr. 6, 2020). 16 Given the present need for medical professionals to address the rising number of cases of COVID-19 in the District of Columbia, the Bureau submits that it would not be the best allocation of resources to have a medical team present on site at a facility with no sick patients.
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2013) (citation omitted). Interim injunctive relief is “never awarded as of right,” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008), and “should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion,” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). A party moving for a temporary restraining order or a preliminary injunction “must demonstrate ‘(1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction is not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction.’” Jack’s Canoes, 933 F. Supp. 2d at 75-76 (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995)); see also League of Women Voters of U.S. v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) (“A party seeking a preliminary injunction must make a ‘clear showing that [the] four factors, taken together, warrant relief.’” (quoting Pursuing Am.’s Greatness v. FEC, 831 F.3d 500, 505 (D.C. Cir. 2016)).17
Moreover, a plaintiff seeking a mandatory injunction faces a greater hurdle than one seeking a prohibitive injunction. Mylan Pharm., Inc. v. Shalala, 81 F. Supp. 2d 30, 36 (D.D.C. 2000). “The usual role of a preliminary injunction is to preserve the status quo pending the outcome of litigation.” Cobell v. Kempthorne, 455 F.3d 301, 314 (D.C. Cir. 2006) (quotation omitted). Therefore, when, as here, the movant seeks mandatory injunctive relief—i.e., an order that “would alter, rather than preserve, the status quo”—an even higher standard applies, and “the moving party
17 “[T]he D.C. Circuit has recently suggested that the sliding scale approach may no longer be applicable after the Supreme Court’s decision in Winter, and that a more stringent test applies instead.” See Elec. Privacy Info. Ctr. v. DOJ, 15 F. Supp. 3d 32, 38 (D.D.C. 2014) (citing Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (likelihood of success on the merits and irreparable harm may be “independent, free-standing requirement[s] for a preliminary injunction” (citation omitted))); see also Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh & Henderson, JJ., concurring) (“[U]nder the Supreme Court’s precedents, a movant cannot obtain a preliminary injunction without showing both a likelihood of success and a likelihood of irreparable harm, among other things.”).
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must meet a higher standard than in the ordinary case by showing ‘clearly’ that he or she is entitled to relief or that ‘extreme or very serious damage’ will result from the denial of the injunction.” Columbia Hosp. for Women Found., Inc. v. Bank of Tokyo-Mitsubishi, Ltd., 15 F. Supp. 2d 1, 4 (D.D.C. 1997) (quoting Phillip v. Fairfield Univ., 118 F.3d 131, 133 (2d Cir. 1997)), aff’d, 159 F.3d 636 (D.C. Cir 1998). “A district court should not issue a mandatory preliminary injunction unless the facts and the law clearly favor the moving party.” Nat’l Conference on Ministry to Armed Forces v. James, 278 F. Supp. 2d 37, 43 (D.D.C. 2003) (internal quotations omitted).
ARGUMENT I. Plaintiffs are unlikely to succeed on the merits.
A. The BOP has not shown deliberate indifference but has taken appropriate measures to protect the health of Hope Village residents and the public.
Plaintiffs allege that the conditions of their confinement at Hope Village constitute a violation of the Eighth Amendment. See Compl. at 20 (Claim 1). The Eighth Amendment protects against the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. “A prison official violates the Eighth Amendment only when two requirements are met.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). “First, the deprivation alleged must be, objectively, ‘sufficiently serious’. . . .” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). A deprivation is sufficiently serious if “a prison official’s act or omission” causing such a deprivation “result[s] in the denial of ‘the minimal civilized measure of life’s necessities.’” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Second, “a prison official must have a ‘sufficiently culpable state of mind.’” Id. (quoting Wilson, 501 U.S. at 297). “[T]hat state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Id. (quoting Wilson, 501 U.S. at 302–03).
Plaintiffs have not shown that they can meet either of these requirements. First, they have not suffered a “sufficiently serious” deprivation. See Wilson, 501 U.S. at 297. To be sure, the
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spread of COVID-19 in the District of Columbia puts everyone at some degree of risk of getting sick, but the Bureau has taken appropriate steps to mitigate those risks throughout its inmate population,18 including with respect to the residents at Hope Village. It has provided Hope Villages with copies of guidance from the CDC, restricted visitation, instructed facilities to implement regular daily temperature testing and screening for COVID-19 symptoms for all residents and staff, directed facilities to immediately isolate any resident of staff exhibiting symptoms, and has suspended the need for inmates to make subsistence payments. Exs., 1, 2; Gustin Decl. ¶ 36.
Further, the CIC report of its visit on March 26, 2020, concluded that Hope Village is taking steps to achieve social distancing where feasible, had an adequate supply of hygiene and cleaning products for use staff and residents, was cleaning high-traffic areas including light switches and door handles more frequently, screening all incoming inmates (including temperature and symptom checks), and operating smaller group sessions so that residents can sit several chairs apart. See Ex. 3, CIC Rep. at 3–6.
In addition, the Bureau is also exercising its expanded home confinement authority to place as many inmates as qualify on home confinement. Qualifying for home confinement is, however, a two way street. An inmate must demonstrate the Hope Villages and Bureau staff that they have a suitable environment in which to serve the remainder of their sentence in a home setting. In
18 Courts around the country have recently received challenges to detention on the grounds of COVID-19 in the criminal bail context and have recognized the government’s public health efforts, particularly the efforts of the Bureau of Prisons, to address the COVID-19 crisis. See United States v. Martin, No. 19-0140, 2020 WL 1274857, at *4 (D. Md. Mar. 17, 2020); United States v. Jefferson, No. 19-0487, 2020 WL 1332011, at *1 (D. Md. Mar. 23, 2020); United States v. Hamilton, No. 19-0054, 2020 WL 1323036, at *2 (E.D.N.Y. Mar. 20, 2020); United States v. Gileno, No. 19-0161, 2020 WL 1307108, at *4 (D. Conn. Mar. 19, 2020); United States, v. Rollins, No. 11-251S, 2020 WL 1482323 (W.D.N.Y. Mar. 27, 2020) (denying motion for release from custody pending sentencing and explaining that “[a]s serious as it is, the outbreak of COVID-19 simply does not override the statutory detention provisions above”).
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particular, inmates must have a home telephone so that their presence in home confinement may be confirmed by speaking to them on the telephone. Gustin Decl. ¶ 30. Plaintiff Boatright and the declarant Pleasant, however, do not yet have home telephone lines installed at the homes where they would be confined. Id. ¶¶ 30–40. Staff are working with Boatright and Pleasant to try to ensure that they promptly obtain telephone service at the location of their home confinement. Id.
While residents at Hope Village do share living quarters with a limited number of other residents, this is also true of many unincarcerated members of the community who live with roommates or family members. See Hines v. Youssef, No. 13-0357, 2015 WL 164215, at *4 (E.D. Cal. Jan. 13, 2015) (“Unless there is something about a prisoner’s conditions of confinement that raises the risk of exposure substantially above the risk experienced by the surrounding communities, it cannot be reasoned that the prisoner is involuntarily exposed to a risk the society would not tolerate.”). Residents also eat together and typically share a table, but Hope Village has made it more possible for residents to practice social distancing during meal times by opening up a second dining room in a vacant apartment. Ex. 3, CIC Rep. Residents can also limit their close exposure to others by sitting only with the inmates with whom they share rooms. Further, the chance that an inmate at Hope Village will contract the virus from the other inmates with whom he shares living quarters is substantially reduced by the fact that residents are not currently permitted to leave the Hope Village facility and there have been no known cases of COVID-19 within Hope Village. Williams Decl. ¶ 6; Gustin Decl. ¶ 37.
Second, Plaintiffs cannot satisfy the subjective element of the analysis, which requires them to prove “that officials had subjective knowledge of the serious medical need and recklessly disregarded the excessive risk to inmate health or safety from that risk.” Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citing Farmer, 511 U.S at 837). The test is
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subjective, meaning “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [or she] must also draw the inference.” Farmer, 511 U.S at 837. To be sure, the Bureau is acutely aware of the risk that COVID-19 poses to its inmate population and to the public at large, but it can hardly be said to be indifferent, as shown by the actions to counteract the spread of COVID-19 described above. Plaintiffs contend that the Bureau has been specifically indifferent to allegedly substandard conditions at Hope Village and that the Bureau was aware of these conditions by virtue of news reports of inmate allegations published on March 25 and 26 and a letter from the Washington Lawyers’ Committee for Civil Rights and Urban Affairs dated March 25. Pls.’ Br. at 17–18.19 But around the same time these news reports were published, the CIC visited Hope Village on March 26 and reported no sanitary or safety concerns. The Bureau sees no reason to doubt the accuracy of the CIC’s report. Gustin Decl. ¶ 34. As the CIC report indicates that Hope Village is a safe and sanitary environment, the Bureau cannot be said to be deliberately indifferent to any known excessive risk to inmate safety. See Farmer, 511 U.S. at 837.
While Plaintiffs may disagree with the measures taken by the Bureau and Hope Village to protect inmate health and safety while also carrying out the Bureau’s mission to effectuate criminal sentences imposed by federal courts, deliberate indifference is not shown simply by a difference of medical judgment. See Scott v. Benson, 742 F.3d 335, 340 (8th Cir. 2014) (holding that a “mere
19 Plaintiffs also refer to a letter to the Bureau from Congressional Delegate Eleanor Holmes Norton of Washington, D.C. Pls.’ Br. at 18. Contrary to Plaintiffs’ characterization, however, the referenced letter does not mention Hope Village. And contrary to Plaintiffs’ allegations, Delegate Norton has issued a statement announcing that the Bureau “has assured her that Hope Village . . . has enough supplies for all residents and is clean and sanitary.” Delegate Norton further stated, “This positive and prompt assurances from the Federal Bureau of Prisons that the residents at Hope Village are being taken care of in a safe manner, with everything they need, is reassuring to families and to D.C. residents.” See https://norton.house.gov/media-center/press-releases/nortonreceives-assurances-from-federal-bureau-of-prisons-that-hope (last visited Apr. 6, 2020).
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difference of opinion over matters of expert medical judgment or a course of medical treatment fail[s] to rise to the level of a constitutional violation”). Further, in the midst of this extraordinary emergency, “[i]t is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease.” Jacobson v. Massachusetts, 197 U.S. 11, 30 (1905). Rather, public health officials are entitled to heightened deference when exercising science-based public health judgment during a public health emergency. See, e.g., United States ex rel. Siegel v. Shinnick, 219 F. Supp. 789 (E.D.N.Y. 1963) (explaining in a habeas matter that “the judgment required is that of a public health officer and not of a lawyer used to insist on positive evidence to support action; their task is to measure risk to the public . . . . They deal in a terrible context and the consequences of mistaken indulgence can be irretrievably tragic.”); Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016) (“To permit these constitutional claims to go forward . . . would be a judicial second-guessing of the discretionary judgments of public health officials acting within the scope of their (and not my) expertise.”); see also Jacobson, 197 U.S. at 39 (upholding mandatory vaccination law and explaining that such a measure, enacted to protect public health, will not be struck down unless it “has no real or substantial relation to [that goal], or is, beyond all question, a plain, palpable invasion of rights” secured by the Constitution); Bragdon v. Abbot, 524 U.S. 624, 650 (1998) (noting that “the views of public health authorities, such as the U.S. Public Health Service, CDC, and the National Institutes of Health, are of special weight and authority”); Sch. Bd. of Nassau Cty., Fla. v. Arline, 480 U.S. 273, 288 (1987) (recognizing that “courts normally should defer to the reasonable medical judgments of public health officials”).
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B. Releasing residents from Hope Village would not redress the alleged injuries; instead, it would likely result in injury to some residents.
Plaintiffs are also unlikely to succeed on the merits because the primary relief that they seek from the Bureau—the release from custody of a substantial number of Hope Village residents (or, alternatively, their own release)—is unlikely to redress the alleged harm that they or the members of the alleged class purportedly suffer—a risk of contracting COVID-19. To bring a claim in federal court, a plaintiff must satisfy the requirements for Article III standing: injury, causation, and redressability. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). The redressability requirement limits Article III jurisdiction to those cases in which the relief sought will remedy the injury alleged. See Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000). Although certainty is not required, “the [plaintiff] must demonstrate ‘that it is likely as opposed to merely speculative that the injury will be redressed by a favorable decision of the court.’” Spectrum Five LLC v. FCC, 758 F.3d 254, 260 (D.C. Cir. 2014) (citation omitted). A plaintiff must demonstrate standing (including the redressability element) for each form of relief sought. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). “[I]f a favorable judicial decision is unlikely to correct the alleged wrong, there is no case or controversy within the meaning of Article III.” Brookens v. Am. Fed’n of Gov’t Emps., 315 F. Supp. 3d 561, 566 (D.D.C. 2018).
Plaintiffs cannot show that the immediate release of a substantial number of Hope Village residents or themselves would lessen their risk of them contracting COVID-19. It cannot be denied that COVID-19 is spreading throughout the District of Columbia, though it has yet to manifest in any way at Hope Village. As noted, the Bureau and Hope Village have taken measures to protect the staff and residents of Hope Village, including restricting inmate’s ability to come and go from the facility, screening new arrivals for symptoms, taking measures to allow greater social distancing during meals and in groups, cleaning high-traffic areas more frequently, and isolating
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anyone showing symptoms of COVID-19. Unlike many in the community, inmates at Hope Village do not need to leave the facility to purchase groceries, toiletries, or cleaning supplies. By contrast, Plaintiffs have not provided any assurances that the places that they intend to reside or the lifestyles that they would adopt upon release from Hope Village would offer similar protections. For example, while Plaintiffs complain that they are required to share a living space and a restroom with a limited number of other residents, it is not clear that they would not be subject to the same arrangement outside the facility.
Further, while the two named Plaintiffs indicate that they have homes where they could live outside Hope Village, Williams Decl. ¶ 3, Boatright Decl. ¶ 3, they provide no indication that this is true for the many other residents that they would have this Court immediately order out of the Hope Village facility where they live. Many of those residents likely do not yet have suitable homes to go to upon their release and presently depend on Hope Village for food, shelter, and access to medical care. See Gustin Decl. ¶ 29 (noting that many residents at Hope Village qualify for home confinement but have not been placed on home confinement for several reasons, including that they do not have a home). These residents would certainly see their risk of contracting COVID-19 dramatically increased, not reduced, if, in the middle of a pandemic, they are forced to abandon their living quarters at Hope Village with no viable alternative.
C. The BOP lacks authority to unilaterally truncate judicially imposed sentences, which can only be modified by the sentencing court.
As relief, among other things, Plaintiffs ask that this Court order the Bureau to release some unspecified number of individuals from Hope Village so that the remaining residents there can more easily practice social distancing. ECF No. 11-2. Contrary to Plaintiffs’ allegation, however, the Bureau does not have the “discretion to provide early release” to federal inmates. See Compl. ¶ 14. Sentences are imposed by federal judges (not the Bureau), and only federal judges may
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modify or reduce the terms of those sentences. Gustin Decl. ¶ 14. Upon request by an inmate, however, the Director of the Federal Bureau of Prisons may make a motion to an inmate’s sentencing court to reduce a term of imprisonment under 18 U.S.C. § 3582(c)(1)(A) where there are “extraordinary and compelling reasons” for doing so. This is referred to as “compassionate release.” The process is generally initiated by an inmate submitting a written request to the warden of their correctional institution. Bureau Program Statement: Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g), § 571.61.a (Jan 17, 2019). An inmate may also file a motion for reduction of sentence directly to the sentencing court after exhaustion of administrative remedies, or 30 days from the date the warden receives such a request from the inmate, whichever is earlier. 18 U.S.C. § 3582(c)(1)(A). The determination of release is ultimately the decision of the sentencing court.
As far as the Bureau is aware, however, no Hope Village resident has submitted a request for compassionate release to the Bureau. Because they have yet to undertake this necessary administrative process, Plaintiffs and the other residents at Hope Village may not at this time seek to take advantage of compassionate release. In recent weeks, numerous criminal defendants around the country have cited the unusual circumstances presented by COVID-19 as a basis for compassionate release, and have argued that the exhaustion requirement should be excused. The only Court of Appeals to have addressed the question has rejected the argument and required exhaustion. See United States v. Raia, -- F.3d --, 2020 WL 1647922, at *1 (3d Cir. Apr. 2, 2020). In Raia, the Third Circuit recognized the serious concerns presented by COVID-19, but held that, in light of these concerns, as well as the BOP’s statutory role and its “extensive and professional efforts to curtail the virus’s spread, . . . strict compliance with Section 3582(c)(1)(A)’s exhaustion
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requirement takes on added—and critical—importance.” Id. at *2. The vast majority of district courts have also required exhaustion despite alleged COVID-19 concerns.20
In addition, the Bureau can temporarily furlough a prisoner to visit a designated place for a period not to exceed 30 days for the purpose of obtaining medical treatment that is not otherwise available, among other specific statutorily described reasons. See 18 U.S.C. § 3622. The Bureau is currently using this authority for individuals who have been medically screened, determined to by symptomatic, and on the advice of medical professionals. Gustin Decl. ¶ 15. No resident of Hope Village currently meets these criteria. Id.
For these reasons, the Bureau lacks any authority to release Plaintiffs or the other federal inmates at Hope Village from their judicially imposed sentences. Should Plaintiffs or anyone else wish to pursue the possibility of compassionate release, they must follow the prescribed administrative process for moving their sentencing court for a modification of their court-imposed sentence. That is not something that the Bureau can do unilaterally. II. Plaintiffs have not established imminent irreparable harm.
Plaintiffs’ inability to show irreparable harm presents an independent basis for denying their requested emergency relief. The D.C. Circuit “has set a high standard for irreparable injury.”
20 See United States v. Hernandez, No. 18-0834, 2020 WL 1445851, at *1 (S.D.N.Y. Mar. 25, 2020); United States v. Cohen, No. 18-0602, 2020 WL 1428778, at *1 (S.D.N.Y. Mar. 24, 2020); United States v. Carver, No. 19-6044, 2020 WL 1604968, at *1 (E.D. Wa. Apr. 1, 2020); United States v. Clark, No. 17-0085, 2020 WL 1557397, at *3 (M.D. La. Apr. 1, 2020); United States v. Williams, No. 15-0646, 2020 WL 1506222, at *1 (D. Md. Mar. 30, 2020); United States v. Garza, No. 18-1745, 2020 WL 1485782, at *1 (S.D. Cal. Mar. 27, 2020); United States v. Zywotko, No. 19-0113, 2020 WL 1492900, at *1 (M.D. Fla. Mar. 27, 2020); United States v. Eberhart, No. 130313, 2020 WL 1450745, at *2 (N.D. Cal. Mar. 25, 2020); United States v. Gileno, No. 19-0161, 2020 WL 1307108, *3 (D. Conn. Mar. 19, 2020). But see United States v. Perez, No. 17-0513, 2020 WL 1546422, at *3 (S.D.N.Y. Apr. 1, 2020); United States v. Colvin, No. 19-0179, 2020 WL 1613943, at *2 (D. Conn. Apr. 2, 2020). Both Perez and Colvin relied on Washington v. Barr, 925 F.3d 109 (2d Cir. 2019), which is inapposite because it involves judge-made exhaustion doctrine
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Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). The party seeking injunctive relief must show that its injury is “both certain and great,” and that it is “actual and not theoretical.” Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam). It is a “well known and indisputable principle[]” that an “unsubstantiated and speculative” allegation of harm cannot constitute “irreparable harm” sufficient to justify injunctive relief. Id. Moreover, the movant “‘must demonstrate a causal connection between the alleged harm and the actions to be enjoined; a preliminary injunction will not issue unless it will remedy the alleged injuries.’” Navistar, Inc. v. EPA, 2011 WL 3743732, at *2 (D.D.C. Aug. 25, 2011) (quoting Hunter Grp. v. Smith, 164 F.3d 624 (4th Cir. 1998)). Because plaintiffs have not made the requisite showing of a nonspeculative injury that could be remedied by any lawful order from this Court, the motion should be denied on this basis alone. Cf. Greater New Orleans Fair Hous. Action Ctr. v. U.S. Dep’t of Hous. & Urban Dev., 639 F.3d 1078, 1088 (D.C. Cir. 2011) (noting that if one requirement is not met then “there is no need to consider the remaining factors”).
Moreover, any lawful order that might be issued from this Court would not actually remedy the harm alleged. The purpose of emergency injunctive relief is “to prevent irreparable harm” that is “actual” and “imminent.” League of Women Voters, 838 F.3d at 7. It follows that when granting such relief could not and would not actually prevent the harm that the movant seeks to avoid, emergency injunctive relief is inappropriate. As Judge Bates once put it, “[i]t would make little sense for a court to conclude that a plaintiff has shown irreparable harm when the relief sought would not actually remedy that harm. A plaintiff may be irreparably harmed by all sorts of things, but the irreparable harm considered by the court must be caused by the conduct in dispute and remedied by the relief sought.” Sierra Club v. U.S. Dep’t of Energy, 825 F. Supp. 2d 142, 153 (D.D.C. 2011) (emphasis added); see also Winter, 555 U.S. at 20 (“A plaintiff seeking a
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preliminary injunction must establish . . . that he is likely to suffer irreparable harm in the absence of preliminary relief.”); Arpaio v. Obama, 27 F. Supp. 3d 185, 207 (D.D.C. 2014) (“[T]he inability to obtain redress from an order by this Court . . . likewise dooms the plaintiff’s ability to show irreparable harm.”), aff’d, 797 F.3d 11 (D.C. Cir. 2015).
For substantially the same reasons that Plaintiffs cannot show redressability, they cannot show an actual irreparable injury. As there are and have been no known cases of COVID-19 at Hope Village, Plaintiffs do not presently suffer an “actual” threat of contracting the disease. Further, the Bureau and the facility are taking appropriate measures under the circumstances to ensure that COVID-19 is not introduced to the facility. Where inmates have shown symptoms of the disease, they have been promptly isolated (and ultimately tested negative). Plaintiffs cannot show that they would be less at risk of contracting COVID-19 in the community—where the disease is quickly spreading—than at Hope Village. In addition, Plaintiffs Thurman and Boatright, who are 49 and 36, respectively, have provided no information from which to conclude that they are at a high risk for serious complications from COVID-19. For these independent reasons, Plaintiffs’ motion for a temporary restraining order should be denied. III. Public health and safety would not be served by granting the requested
preliminary relief. A party seeking a temporary restraining order or preliminary injunction must also demonstrate “that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. “These factors merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). Once again, plaintiffs have not met their burden. Plaintiffs ask the Court to order the Bureau to release and remove from Hope Village an unspecified but presumably substantial number of inmates so that the remaining residents will not have to share living space and can more easily practice social distancing. As noted, many of these
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inmates may not have viable housing options outside of Hope Village and, if asked to immediately leave the facility, would be suddenly deprived of access to food, means of personal hygiene, and medical care during a time when these basic necessities are all the more critical.21 Not only would this risk those inmates becoming infected with COVID-19, it would also risk those individuals transmitting the disease to others in the community, thereby undermining the substantial public efforts to suppress the spread of the virus. Clearly, this would not be in the interest of public health and safety. IV. Plaintiffs have not provided a sufficient basis for preliminary class certification,
and class-wide relief would likely harm many Hope Village residents. Plaintiffs seek provisional class certification for purposes of their temporary restraining order, contending that “the propriety of class treatment here is apparent.” Pls.’ Br. at 29.22 It is not. “The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). To certify a class under Rule 23, a plaintiff must show that the proposed class satisfies all four requirements of Rule 23(a) and one of the three Rule 23(b) requirements. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). There are four requirements under Rule 23(a): numerosity, commonality, typicality, and adequacy of representation, Fed. R. Civ. P. 23(a), and it is Plaintiffs’ burden to prove that each element is met, see Harris v. Koenig, 271 F.R.D. 383, 388 (D.D.C. 2010) (“The plaintiff bears the burden of proof on each element of Rule 23.” (citing Amchem Prods., Inc. v. Windsor, 521 U.S.
21 The CDC emphasizes that people who are homeless are particularly vulnerable to COVID-19. See https://www.cdc.gov/coronavirus/2019-ncov/community/homeless-shelters/index.html (last visited Apr. 4, 2020). 22 Plaintiffs have also filed a full motion for class certification. ECF No. 25. Defendants’ response to that motion is currently due on April 17, 2020, and the Bureau will respond more fulsomely to Plaintiffs’ arguments at that time.
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591, 614 (1997))). Plaintiffs fall short. They claim to satisfy the numerosity requirement only by lumping together all “prisoners who are detained or will be detained at Hope Village.” Pls.’ Mot. for Class Cert. at 4. So construed, however, the class cannot satisfy the remaining elements. A class satisfies the commonality requirement where there is a uniform “policy or practice that affects all class members.” DL v. District of Columbia, 713 F.3d 120, 128 (D.C. Cir. 2013). And the typicality requirement is satisfied if the claims “are based on the same legal theory.” Bynum v. District of Columbia, 214 F.R.D. 27, 34 (D.D.C. 2003). But Plaintiffs’ proposed class would combine inmates who are in the custody of the D.C. Department of Corrections and subject to that agency’s policies and practices, as well as inmates who are in the custody of the Federal Bureau of Prisons and subject to the statutes and policies governing it.
Most strikingly, Plaintiffs’ cannot show adequacy of representation. To do so, they must demonstrate that “(1) the named representative must not have antagonistic or competing interests with the unnamed members of the class, and (2) the representative must appear able to vigorously prosecute the interests of the class through qualified counsel.” Twelve John Does v. District of Columbia, 117 F.3d 571, 575–76 (D.C. Cir. 1997) (quoting Nat’l Ass’n of Reg’l Med. Programs, Inc. v. Mathews, 551 F.2d 340, 345 (D.C. Cir. 1976)). Plaintiffs here demand a dramatic remedy that would have a profound effect on members of the class: the immediate release and removal of a substantial portion of the population at Hope Village. Plaintiffs are two inmates with homes that they could go to upon release, but they provide no assurances that other class members (including those that would have to be released to effectuate their requested injunction) are similarly situated. Indeed, it is quite likely that the sudden removal of so many inmates would leave some of them homeless and without access to food, shelter, or medical care in the midst of a grave pandemic that is having a substantial impact on the District of Columbia. Plaintiffs’ failure to consider or account
26

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for such concerns in the immediate and sweeping relief that they seek demonstrates that they are not fit to represent the members of their proposed class.
CONCLUSION Plaintiffs have not satisfied their heavy burden for the sweeping emergency injunctive relief that they seek. The Court should deny their motion for a temporary restraining order.

Dated: April 6, 2020

Respectfully submitted,
TIMOTHY J. SHEA, D.C. Bar #437437 United States Attorney
DANIEL F. VAN HORN, D.C. Bar #924092 Chief, Civil Division
By: /s/ Johnny Walker JOHNNY H. WALKER, D.C. Bar #991325 Assistant United States Attorney 555 4th Street, N.W. Washington, District of Columbia 20530 Telephone: 202 252 2575 Email: johnny.walker@usdoj.gov
Counsel for Defendants the Federal Bureau of Prisons and the Director of the Federal Bureau of Prisons

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1

2

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA 3

4 THURMAN WILLIAMS and

Civil Action No. 1:20-cv-00890

5 RONALD IAN BOATRIGHT
6 each individually and on behalf of all
7 others similarly situated,

DECLARATION OF JON GUSTIN

8 Plaintiffs,
9

10

v.

11 FEDERAL BUREAU OF PRISONS,

12 MICHAEL CARVAJAL, in is official
13 capacity as Director, Federal Bureau of
14 Prisons,

15 DISTRICT OF COLUMBIA,

16 QUINCY BOOTH, in his official
17 capacity as Director, D.C. Department
18 of Corrections and

19 HOPE VILLAGE, Inc.

20 Defendants.
21

22

23

24

25

26

27

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Case 1:20-cv-00890-RC Document 29-1 Filed 04/06/20 Page 2 of 14

1

I, JON GUSTIN, declare the following under 28 U.S.C. § 1746, and state that

2 under penalty of perjury the following is true and correct to the best of my knowledge

3 and belief:

4 I. Personal Background

5

1. I am a citizen of the United States. I am currently employed by the

6 Federal Bureau of Prisons (BOP) of the United States Department of Justice, as the

7 Administrator of the BOP’s Residential Reentry Management Branch (RRMB) in the

8 Central Office, located in Washington, D.C.

9

2. The Residential Reentry Management Branch develops and administers

10 contracts for community-based programs, including Residential Reentry Centers and

11 home confinement. As the Administrator of RRMB, I am responsible for the

12 execution of BOP’s residential reentry management priorities nationwide. I provide

13 leadership and management oversight of the three Sector Management Teams

14 (Eastern, Central, and Western) and 24 field office managers in the development and

15 administration of BOP’s residential reentry centers, juvenile and adult boarding

16 facilities, and non-residential home detention programs. I am responsible for the

17 development and implementation of national policy for RRMB, providing technical

18 assistance to managers at all levels within the BOP in interpretation and coordination

19 of community-based correctional activities. I also provide guidance and direction in

20 the operations of programs and services that are provided through intergovernmental

21 agreements at the federal, state, county, and city levels, and through contracts with

22 private entities.

23

3. I began working for the BOP in October 1997 as a Correctional Officer

24 at the Federal Detention Center in SeaTac, Washington, and was promoted to

25 positions of increasing responsibility before assuming my current position in June

26 2015. Immediately prior to becoming the Administrator of RRMB, I worked as a

27 Privatization Field Administrator for the BOP’s Privatization Management Branch

28

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1 for one year, from June 2014 to June 2015. As a Privatization Field Administrator, I

2 provided oversight and guidance to the BOP on-site staff at several of BOP’s private

3 contract facilities and was responsible for the overall monitoring of the operations

4 of those private contract facilities within my geographic area of responsibility.

5

4. From May 2011 to June 2014 I served as the Assistant Administrator for

6 the Residential Reentry Management Branch. I also previously served as a Program

7 Review Examiner for the BOP’s Program Review Division (September 2006 to

8 August 2009). In this position I performed program reviews (BOP internal audits)

9 of BOP’s residential reentry offices. I have also worked as a Correctional Programs

10 Specialist in two of the BOP’s residential reentry field offices: Minneapolis

11 (September 2006 to August 2009) and Seattle (March 2002 through September 2006).

12 In this position I assisted in the administration of BOP’s contracts for community-

13 based programs within limited geographic areas and served as a liaison between BOP

14 and various governmental agencies (federal, state, and local), courts, and other non-

15 governmental entities.

16

5. In total I have over 18 years of experience in the management and

17 oversight of contract facilities to include private correctional facilities, residential

18 reentry centers, home confinement, contract jails, prisons and juvenile detention

19 facilities.

20 II. The BOP’s Residential Reentry Centers

21

6. The BOP has utilized and continues to utilize privately contracted

22 Residential Reentry Centers (RRCs) (sometimes called “half-way houses”) to comply

23 with its statutory mandate to facilitate inmates’ reentry into the community following

24 their terms of incarceration. See 18 U.S.C. § 3624(c). Residential Reentry Centers

25 provide inmates with a safe, structured, supervised environment, as well as

26 employment counseling, job placement, financial management assistance, drug and

27 alcohol testing and counseling, and other programs and services as they transition

28

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1 back to the community. Residential Reentry Centers help inmates rebuild their ties

2 to the community and supervise offenders’ activities during the community

3 reintegration phase of the BOP’s reentry programming.

4

7. Residential Reentry Centers are staffed and managed by contractor

5 employees. These contract employees are responsible for the appropriate

6 supervision of federal offenders and the orderly running of the RRC, in compliance

7 with their contractual obligations and other BOP guidance. The contractor’s

8 performance is monitored by BOP staff located in one of 24 Residential Reentry

9 Management field offices throughout the United States. The BOP does not provide

10 for the day-to-day operation of RRCs nationwide, but it does have oversight authority

11 which it exercises to ensure that the facilities meet contractual standards.

12 III. BOP’s Use of Residential Reentry Centers Nationwide

13

8. The BOP has a current national inmate population of 175,837 inmates.

14 BOP contracts with the private sector for the operation of more than 179 RRCs

15 across the United States.

16

9. Nationwide, the BOP has 7,335 inmates (approximately 4.4% of the

17 total inmate population) designated to RRCs. Additionally, 3,385 inmates (1.4%) are

18 designated to home confinement, with the vast majority under the supervision of a

19 BOP-contracted RRC.

20 IV. Residential Reentry Center (RRC) Contracts

21

10. In soliciting and awarding contracts for RRCs, the BOP’s contracts

22 consist of a base period of operations and one or more option periods that allow the

23 BOP to unilaterally extend arrangements with the contractor for a specified period.

24 When the options are exercised, the contractor is obligated to continue providing

25 services during the option period. Given the BOP’s need for RRCs, all option years

26 are typically exercised.

27

28

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1

11. The BOP also maintains capacity in its RRCs for use by federal courts

2 as an intermediate sanction during supervision or probation. This function utilizes

3 generally 15–20% of the total RRC capacity nationally. Although individuals housed

4 under this arrangement are not in BOP custody, the BOP maintains available beds

5 to meet the courts’ needs.

6

12. The BOP currently has a contract with Hope Village, an RRC located at

7 2920 Langston Place SE, Washington D.C. The contract expires on April 30, 2020.

8 However, in consideration of the COVID-19 pandemic, the BOP anticipates that the

9 agency will seek an extension of the contract with Hope Village.

10

13. Hope Village only houses male offenders with an estimated maximum

11 of 250 beds. Currently, there are 192 BOP inmates in-house at Hope Village with 8

12 of these cases being sanction cases placed in the facility as a condition of supervision.

13 There are 36 BOP Hope Village inmates on home confinement.

14 V. Compassionate Release/ Reduction in Sentence Procedures

15

14. The BOP does not have the authority to provide inmates with “early

16 release.” A reduction of an inmate’s federal sentence can only be accomplished by

17 and Article III judge, and specifically, the inmate’s sentencing judge. However, upon

18 an inmate’s request, the Director of the BOP may make a motion to an inmate’s

19 sentencing court to reduce a term of imprisonment under 18 U.S.C. § 4205(g) and

20 18 U.S.C. § 3582(c)(1)(A). This process is outlined in BOP Program Statement

21 5050.50, Compassionate Release/Reduction In Sentence Procedures for Implementation of 18

22 U.S.C. §§ 3582 and 4205(g). (This BOP program statement and all other program

23 statements and operations memoranda cited herein are available at www.bop.gov via

24 the Resources link). The BOP invokes these statutory authorities in “extraordinary

25 or compelling circumstances” which could not have reasonably have been foreseen

26 by the court at the time of sentencing. The First Step Act, codified at 18 U.S.C. §

27 3582 specifies that an inmate may file a Motion for Reduction of Sentence directly

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1 to the sentencing court after exhaustion of administrative remedies, or 30 days from 2 the date the warden receives such a request from the inmate, whichever is earlier. 3 The determination of release is ultimately the decision of the sentencing court. Upon 4 information and belief, as of the date of this filing, no Hope Village resident has 5 submitted a request for Compassionate Release to the BOP. 6 VI. Inmate Furloughs

7

15. The BOP also has the authority to temporarily release from custody (or

8 “furlough”) an inmate pursuant to 18 U.S.C. § 3622 and BOP Program Statement

9 5280.09, Inmate Furloughs. The inmate must meet certain requirements, and the

10 temporary release from custody is under carefully prescribed conditions. It is not a

11 means to shorten a sentence. The RRMB is only using emergency furloughs for

12 those individuals who have been medically screened, determined to be symptomatic,

13 and on the advice of medical professionals. The individuals then need to be

14 quarantined for 14 days, if they have viable release residences. No BOP Hope Village

15 resident has met this criterion at this time.

16 VII. BOP’s Statutory Authority to Place Inmates on Home Confinement

17

16. Although the BOP lacks the authority to release an inmate from his

18 sentence, the BOP has the authority to transfer a prisoner to home confinement for

19 the remainder of his or her sentence pursuant to provisions and limitations set forth

20 18 U.S.C. § 3624(c)(2) and 34 U.S.C. § 60541. See also BOP Program Statement

21 7320.01, Home Confinement and BOP Operations Memorandum, Home Confinement

22 under the First Step Act, both of which are available on www.bop.gov via the Resources

23 link.

24

A. The BOP’s Authority under 18 U.S.C. § 3624(c)(2)

25

17. Under 18 U.S.C. § 3624(c)(2), the BOP has the exclusive authority to

26 place a prisoner in home confinement for the shorter of 10 percent of the term of

27 imprisonment of that prisoner or 6 months. The BOP, shall, to the extent

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1 practicable, place prisoners with lower risk levels and lower needs on home

2 confinement for the maximum amount of time permitted under section 3624(c)(2).

3 During the inmate’s incarceration, BOP institution staff are responsible for making

4 referrals to RRCs or home confinement typically within 17-19 months of the

5 prisoner’s release date.

6

18. In order to appropriately evaluate an individual for home confinement,

7 the RRC staff assesses the risk of criminal activity in the community and determines

8 whether there is an appropriate home where the individual can be placed. This is a

9 time and resource intensive process. Upon receipt of the RRC’s assessment, the

10 BOP reviews the assessment and makes the final determination regarding home

11 confinement. If approved, absent any disciplinary infractions, the inmate would

12 serve the remainder of his or her sentence on home confinement.

13

B. The BOP’s Authority Under 34 U.S.C. § 60541

14

19. Under 34 U.S.C. § 60541, the BOP may release some or all eligible

15 elderly offenders and eligible terminally ill offenders from BOP facilities to home

16 detention, upon written request from either BOP staff, or an eligible elderly offender

17 or eligible terminally ill offender. The statute defines “eligible elderly offender” to

18 include an inmate who is not less than 60 years of age; who is serving a term of

19 imprisonment that is not life imprisonment based on a conviction for an offense or

20 offenses that do not include any crime of violence; has served two-thirds of the term

21 of imprisonment to which the offender was sentenced; who has not been convicted

22 in the past of any Federal or State crime of violence, sex offense, or other offense

23 referenced in the statute; who has not been determined by the BOP to have a history

24 of violence, or of engaging in conduct constituting a sex offense or other excluded

25 offense; who has not escaped, or attempted to escape from a BOP institution; whose

26 release to home detention will result in a substantial net reduction of costs to the

27 Federal Government; and who has been determined by the BOP to be at no

28

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1 substantial risk of engaging in criminal conduct or of endangering any person or the

2 public if released to home detention.

3

20. “Eligible terminally ill offender” is defined as an offender in the custody

4 of the BOP who meets all of the above-stated criteria except the age restriction, and

5 has been determined by a medical doctor approved by the BOP (i.e., Clinical Director

6 of the local institution) to be in need of care at a nursing home, intermediate care

7 facility, or assisted living facility, or diagnosed with a terminal illness.

8

21. In order to appropriately evaluate an elderly or terminally ill individual

9 for home confinement, the BOP assesses the risk of criminal activity in the

10 community and determines whether there is an appropriate home where the

11 individual can be placed. As mentioned earlier, this is a time and resource intensive

12 process.

13

22. If approved, absent any disciplinary infractions, the inmate would serve

14 the remainder of his or her sentence on home confinement.

15

23. Pursuant to the statute, a violation by an eligible elderly or terminally ill

16 offender of the terms of home detention (including the commission of another

17 Federal, State, or local crime) shall result in the removal of that offender from home

18 detention and the return of that offender to an appropriate BOP institution, as

19 determined by the BOP.

20

24. Inmates that do not meet the criteria for the elderly home confinement

21 can be placed on home confinement under the BOP’s general authority to do so, 18

22 U.S.C. § 3624(c)(2).

23

25. In light of the COVID-19 pandemic, the BOP is maximizing its

24 authority to place inmates on home confinement and is expediting the process as

25 much as possible in furtherance of the Attorney General’s memorandum dated

26 March 26, 2020, which directed the BOP to prioritize the use of its statutory

27

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1 authorities to grant home confinement for inmates seeking transfer in connection

2 with the ongoing COVID-19 pandemic.

3

C. The CARES Act

4

26. The CARES Act authorizes the Attorney General to expand the cohort

5 of inmates who can be considered for home confinement upon his finding of

6 emergency conditions which are materially affecting the function of the BOP. On

7 April 3, 2020, the Attorney General made that finding and authorized the Director

8 of the BOP to immediately maximize appropriate transfers to home confinement of

9 all appropriate inmates held at FCI Oakdale, FCI Danbury, FCI Elton, and other

10 similarly situated BOP facilities where COVID-19 is materially affecting operations.

11

27. Pursuant to the Attorney’s General’s direction, the BOP will continue

12 to monitor the situation at Hope Village (as at all of its facilities) and will take swift

13 action to exercise its expanded home confinement authority for any inmate who is

14 found to be at risk for COVID-19 and suitable for home confinement. The BOP

15 will continue to emphasize the placement of all eligible and appropriate inmates into

16 home confinement.

17

28. As mentioned, there are a total 196 BOP inmates in-house at Hope

18 Village with an additional 36 BOP Hope Village inmates on home confinement.

19

29. Of relevance to Plaintiff’s complaint, 124 of the 196 in-house BOP

20 inmates are statutorily eligible for home confinement, (i.e., shorter of 10 percent of

21 the term of imprisonment of that prisoner or 6 months). While there can be multiple

22 reasons that 124 statutorily eligible BOP inmates are past their home confinement

23 eligibility date, generally, they have not qualified because the BOP is unable to verify

24 that the inmates have home phones, the release residence has not been approved by

25 Hope Village or U.S. Probation staff or the individual is homeless, and/or the

26 individual has recent discipline prohibiting placement (i.e., use of drugs or alcohol,

27 fighting, or other transgressions).

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1

30. The approval process for placing an inmate on home confinement is as

2 follows. Hope Village staff submit the proposed release plan to the agency that will

3 supervise the inmate while on any court imposed supervision Hope Village staff also

4 conduct a visit to the proposed release residence to ensure that the house is suitable

5 (i.e., no firearms, alcohol, appropriate space for the individual, approved to reside at

6 the location, etc.). Additionally, Hope Village staff must verify that an inmate has a

7 home phone pursuant to contractual requirements. This requirement allows for

8 accountability and ensures that the inmate’s presence at his approved home site can

9 be verified. This requirement is also noted in the Performance Work statement and

10 BOP Program Statement 7320.01, Home Confinement. The inmates acknowledge this

11 requirement at the time of placement into an RRC or referral for home confinement.

12 See BOP Program Statement 7320.01, Home Confinement. Once Hope Village staff

13 approve the release plan and receive input from the supervisory authority, they

14 submit the request for home confinement to BOP staff who review for statutory

15 eligibility and make a final determination as to whether the release plan is suitable

16 and in accordance with BOP Program Statement 7320.01, Home Confinement.

17

31. As part of the Residential Reentry Management Branch oversight and

18 quality control process, Residential Reentry Management (RRM) staff consider

19 inmates who are past their home confinement eligibility date by reviewing

20 justification forms submitted from the contractor on a bi-weekly basis. RRM staff

21 further review case notes and program plans during regularly scheduled monitoring

22 activity. This process is intended to ensure that all eligible and appropriate inmates

23 are placed on home confinement as soon as they qualify. The bi-weekly reviews also

24 allow BOP staff to ascertain the current obstacles to an inmate’s being placed on

25 home confinement. During the reviews, if BOP staff determine that an inmate meets

26 all the criteria for home confinement placement as discussed above, the BOP will

27

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1 place the individual on home confinement. The BOP has conducted these bi-weekly 2 reviews regularly with respect to Hope Village. 3 VII. Monitoring of Hope Village Residential Reentry Center

4

32. Pursuant to the contract with Hope Village, the BOP conducts an

5 announced full monitoring of Hope Village annually with unannounced interim

6 monitoring conducted quarterly. Full monitoring includes monitoring the following

7 areas: programming which assists the offenders in their reentry into the community,

8 food services, medical services, staff integrity, discipline, life safety/sanitation,

9 offender accountability, and communication between the contractor and the

10 community corrections staff. The last full monitoring occurred on September 17

11 through 19, 2019. The BOP identified no deficiencies during this monitoring.

12

33. An interim monitoring by the BOP and the D.C. Corrections

13 Information Council (CIC) occurred on February 4 through 5, 2020. The CIC is an

14 independent monitoring body mandated by Congress and the D.C. Council to

15 inspect, monitor and report on conditions of confinement at facilities where D.C.

16 residents are incarcerated. See https://cic.dc.gov/page/about-cic.

17

34. The CIC most recently conducted an announced visit of Hope Village

18 on March 25, 2020, in response to complaints about Hope Village’s efforts to prevent

19 the spread of COVID-19. The CIC found no supply shortages or sanitary issues.

20 The BOP credits the CIC report and sees no reason to doubt its conclusions. Any

21 further visits would be disruptive to the RRC program as visitors are required to be

22 screened and escorted within the facility. Further visits would also be contrary to

23 CDC guidance limiting visitation to group facilities, and would further increase the

24 risk of introducing COVID-19 into the facility. Accordingly, the BOP does not

25 believe that additional inspections are warranted at this time. Furthermore, BOP

26 staff are actively involved in COVID-19 response nationwide, are providing guidance

27

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1 to all Residential Reentry Centers regarding COVID-19 precautions, and have

2 modified operations as part of that response, as described below.

3VIII. BOP’s Management of Residential Reentry Centers During the COVID19 Pandemic
4

5

35. The BOP is monitoring the spread of the COVID-19 virus. As with any

6 type of emergency situation, the agency assesses how best to ensure the safety of

7 staff, inmates, and the public. The BOP’s public website (www.bop.gov) sets forth

8 the BOP COVID-19 Modified Operations Plan and provides information regarding

9 the BOP’s emergency response, the BOP’s COVID-19 response, the BOP’s

10 COVID-19 collaboration efforts, a link to coronavirus.gov, a link to

11 usa.gov/coronavirus and a link to the Centers for Disease Control and Prevention

12 (CDC) resource portal. The BOP finds instructive the CDC guidance regarding how

13 to manage the COVID-19 pandemic.

14

36. In conjunction with the BOP’s response, the BOP has sent guidance to

15 all RRC Contract Providers, including Hope Village, regarding COVID-19

16 precautions/modified operations for RRCs. This guidance includes memoranda

17 from me to all RRC Contract Providers dated March 13, 2020, and March 24, 2020;

18 the CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID-

19 19) in Correctional Detention Facilities, Institution Environment Cleaning and

20 Disinfection Recommendations and COVID-19; Memorandum for all Chief

21 Executive Officers from Andre Matevousian, Acting Assistant Director,

22 Correctional Programs Division and L. Cristina Griffith, Assistant Director Human

23 Resource Management Division regarding the Coronavirus (COVID-19) Phase Two

24 Action Plan (this has since been updated to Phase 5 which can be viewed publically

25 on the BOP’s website www.bop.gov); and the Visitor/Volunteer/Contractor

26 COVID-19 Screening Form. The BOP’s guidance also includes an attachment to

27

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1 our Contract with Hope Village regarding Continuing Contract Performance During

2 a Pandemic Influenza or other National Emergency.

3

37. Upon information and belief, as of the date of this filing, there is no

4 indication that any Hope Village staff or residents have COVID-19. In fact, three

5 Hope Village inmates who are in the custody of the BOP had previously shown

6 possible symptoms of COVID-19. During the time they were displaying symptoms,

7 they were isolated and did not have contact with the other Hope Village residents

8 and staff. All test results have returned and the three inmates have tested negative

9 for COVID-19.

10 IX. Hope Village Residents

11

38. Plaintiff Thurman Williams, Federal Register Number 09203-007, age

12 49, was convicted in the Superior Court for the District of Columbia of attempted

13 distribution of cocaine and voluntary manslaughter while armed. He was sentenced

14 on October 10, 1990, to a 45-month term of imprisonment and a life term of

15 imprisonment, respectively. He is also serving a 100-month term of imprisonment

16 for assault on a correctional officer with a dangerous weapon. The Court in the

17 Eastern District of Virginia sentenced him for this offense on January 16, 1998.

18 Plaintiff’s projected release date from custody for these obligations is December 17,

19 2020. His home detention eligibility date is June 17, 2020. He is currently not eligible

20 for placement on home confinement because he has not provided a release plan.

21

39. Plaintiff Ronald Boatright, Federal Register Number 12309-067, age 36,

22 was sentenced by the Court in Middle District of Pennsylvania to a total term of

23 imprisonment of 128 months for a supervised release violation and for conspiracy to

24 distribute a controlled substance. He was sentenced on January 3, 2013. His

25 projected release date is September 13, 2020. His home detention eligibility date

26 was March 13, 2020. It is important to note that Plaintiff Boatright arrived at Hope

27 Village on March 11, 2020 and thus, did not have ample time to develop a viable

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1 release plan. Furthermore, Plaintiff Boatright does not have a home phone and

2 therefore cannot be placed on home confinement. Staff continue to work with

3 Plaintiff Boatright to secure phone service.

4

40. Plaintiffs’ Declarant Anthony Pleasant, Federal Register Number 33298-

5 007, age 33, is serving a 10-month sentence for a supervised release violation. On

6 June 19, 2019, the Superior Court of the District of Columbia revoked his

7 supervision, finding that he had violated the terms of his supervised release for his

8 previous conviction for armed robbery and second degree murder while armed. His

9 projected release date is April 14, 2020. His home detention eligibility date was

10 March 16, 2020. He arrived at Hope Village on March 10, 2020, and thus, did not

11 have ample time to develop a viable release plan. Additionally, he has not succeeded

12 in having a phone installed at his residence, making him ineligible for home

13 confinement. Hope Village staff continue to work with Mr. Pleasant to obtain phone

14 service.

15

16 17 Executed on this 6th day of April, 2020.

18

19

______________________________

20

Jon Gustin, Administrator

Residential Reentry Management Branch

21

Federal Bureau of Prisons

22

Washington, D.C.

23

24

25

26

27

28

Declaration of Jon Gustin| 13

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Exhibit 1

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U. S. Department of Justice
Federal Bureau of Prisons Reentry Services Division
Washington, D.C 20534
MARCH 24, 2020

TO:

ALL RRC CONTRACT PROVIDERS

FROM:

JON GUSTIN, ADMINISTRATOR RESIDENTIAL REENTRY MANAGEMENT BRANCH

SUBJECT: Coronavirus (COVID-19) Precautions/Modified Operations for Residential Reentry Centers.
On March 13, 2020 the Bureau of Prisons (Bureau) issued a memorandum providing guidance to all Residential Reentry and Community Treatment Contract Providers as a result of COVID-19.
This informational sheet is to provide additional guidance and recommendations to Residential Reentry Centers (RRC) to ensure consistency and to protect staff, inmates, and the public. As a reminder, all temporary changes to individual contractor’s pandemic plans which modify operations should be sent to your Residential Reentry Manager prior to implementation.
 Breathalyzer/Drug Testing: Routine Breathalyzer/Drug Testing may be temporarily suspended. Suspect Breathalyzer and Drug testing should still be administered when RRC staff observe an inmate with any signs of impairment indicating alcohol/drug use.
 Staff Site Checks: Staff site checks for employment and/or home site verifications may be temporarily suspended in lieu of enhanced accountability through other measures to include Electronic Monitoring, Telephonic Monitoring, Skype or other methods in a manner which provides accountability in lieu of physical site checks. Every effort must be made to conduct initial site checks for employment or Home Confinement locations for locations that have not been previously visited prior to approving employment or home confinement. RRC staff are also encouraged to conduct family orientations via phone and/or video to provide proper orientation.
Exhibit 2

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 Key Staff: Key staff may be temporarily utilized to fill gaps in security and daily operations in instances staff quarantines or other unanticipated shortages.
 Case Management: Allow for telephonic case management meetings with offenders rather than face to face. Case notes should continue to be updated and thoroughly document the interaction with the resident to include the residents’ response to the case management meeting. Absence of inmate for signature on the case notes should be documented.
 Subsistence: Effective immediately, all subsistence will waived until further notice, any uncollected amounts at this time should be waived.
 Home Confinement (HC): HC offenders on GPS monitoring may have their required return visits to the facility decreased or suspended. Increased accountability measures as identified above should be adhered to.
Information regarding the Bureau’s response to COVID-19 may be found on the Bureau’s public website, www.bop.gov. The Bureau appreciates your hard work and continued partnership and will continue to update this guidance as the situation continues to develop.
The Bureau understands individual circumstances may arise outside of the general guidance and recommendations. Questions should be directed to your designated Residential Reentry Manager or Dana DiGiacomo, Assistant Administrator, RRMB, at ddigiacomo@bop.gov or 202-616-5880. They will collaborate with individual RRCs to develop suggestions for local accommodations.

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Exhibit 3

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Exhibit 4

 
 Case 1:20-cv-00890-RC Document 30 Filed 04/06/20 Page 1 of 48

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THURMAN WILLIAMS 2844 Langston Place SE Washington, DC 20020
RONALD IAN BOATRIGHT 2844 Langston Place SE Washington, DC 20020
each individually and on behalf of all others similarly situated,
PLAINTIFFS,
v. FEDERAL BUREAU OF PRISONS 320 First Street, NW Washington, DC 20534
MICHAEL CARVAJAL, in his official capacity as Director, Federal Bureau of Prisons
DISTRICT OF COLUMBIA c/o Office of Attorney General 441 4th Street, NW Washington, DC 20001
QUINCY BOOTH, in his official capacity as Director, D.C. Department of Corrections
HOPE VILLAGE, INC., 2840 Langston Place SE Washington, DC 20020,
DEFENDANTS.

Civil No. 1:20-cv-00890-RC

DEFENDANT HOPE VILLAGE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS’
APPLICATION FOR A TEMPORARY RESTRAINING ORDER

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Table of Contents I. BACKGROUND ............................................................................................................. 7
A. Hope Village – Residential Reentry Center.............................................................. 8 B. Residential Reentry Center in the Federal BOP System......................................... 9
1. Federal Bureau of Prisons Controls Conditions of Custody at Federal Residential Reentry Centers ................................................................................ 10
2. Bureau of Prisons Sets Conditions for Home Confinement.............................. 13 3. Department of Justice’s Response to the COVID-19 Pandemic....................... 15 C. Responsibility as a Halfway House to the D.C. Department of Corrections ....... 22 D. Close Community Oversight of Hope Village ........................................................ 24 1. The Corrections Information Council Report on Hope Village ....................... 24 2. The D.C. Department of Corrections Report on Hope Village......................... 28 3. Federal Bureau of Prisons Report on Hope Village to the District’s
Congresswoman Eleanor Holmes Norton........................................................... 30 E. Plaintiffs’ Lawsuit ..................................................................................................... 31 II. ARGUMENT................................................................................................................. 32 A. Plaintiffs Have Not Shown That They Are Likely to Succeed on the Merits ...... 32 B. Plaintiffs Have Not Shown Likelihood of Irreparable Harm ............................... 43 C. Plaintiffs Have Not Shown That the Balance of Equities Tips Toward Them,
Considering the Public Interest ............................................................................... 44 III. CONCLUSION ............................................................................................................. 45 CONFIRMATION OF SERVICE .......................................................................................... 47 DISCLOSURE STATEMENT ................................................................................................ 47
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TABLE OF AUTHORITIES Page(s)
Cases Boyle v. United Technologies Corp.,
487 U.S. 500 (1988).................................................................................................................33 Chadbourne v. Kappaz,
779 A.2d 293 (D.C. App. 2001)...............................................................................................33 Munaf v. Geren,
553 U.S. 674 (2008).................................................................................................................32 Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7 (2008).........................................................................................................32, 43, 44 Women Prisoners of D.C. Dep’t of Corr. v. District of Columbia,
899 F. Supp. 659 (D.D.C. 1995) ..............................................................................................45 Statutes 18 U.S.C. § 3624........................................................................................................................9, 17 18 U.S.C. § 3624 (g) (2) ................................................................................................................14 Act, Public Law No. 116-236 (Mar. 27, 2020) ........................................................................15, 16 D.C. Code § 24-101.01 ..................................................................................................................24 First Step Act .................................................................................................................................16 First Step Act Section 104 .............................................................................................................17 Home Confinement under the First Step Act (Apr. 19, 2019), available at
https://sentencing.net/wp-content/uploads/2019/04/Federal-Home-DetentionOperations-Memorandum-April-2019.pdf...............................................................................13 National Capital Revitalization and Self-Government Improvement Act of 1997......................8, 9 Public Law No. 115-391, 132 Stat. 5194 (Dec. 21, 2018).............................................................16 Second Chance Act ........................................................................................................................12
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Other Authorities Available at https://www.nacdl.org/getattachment/c80b217f-eada-4e3a-bdba-
5413c3a8e103/ag-barr-homeconfinement-040320.pdf......................................................15, 17 BOP, Completing the Transition – Reentry Assistance Reduces Recidivism ..................................7 BOP Implementing Modified Operations,
https://www.bop.gov/coronavirus/covid19_status.jsp .............................................................13 Bureau of Prisons, List of RRC Contracts,
https://www.bop.gov/about/facilities/residential_reentry_management_centers .jsp ............................................................................................................................................12 CIC, CIC Visit to Hope Village on March 26, 2020 (Mar. 27, 2020), https://cic.dc.gov/sites/default/files/dc/sites/cic/release_content/attachments/N ow%20Hope%20Village%20CIC%20Statement%203_27_20%20compressed.pdf ........................................................................................................................24 Civil Rights and Urban Affairs, D.C. Prisoners: Conditions of Confinement in the District of Columbia (June 11, 2015) ......................................................................................23 Council Report on Hope Village........................................................................................24, 27, 28 D.C. Mun. Regs. § 533.4 ...............................................................................................................23 FRCP 7.1........................................................................................................................................47 FRCP 12...........................................................................................................................................6 FRCP 23...........................................................................................................................................6 http://www.washlaw.org/pdf/conditions_of_confinement_report.PDF; .......................................23 https://beta.sam.gov/opp/88476aaf6f07442681e45f3520a88f3e/view?keywords=R FP-200-1270-ES&sort=-relevance&index=opp&is_active=true&page=1 .............................12 https://coronavirus.dc.gov/testing ..................................................................................................25 https://doc.dc.gov/page/correctional-facilities .................................................................................8 https://norton.house.gov/media-center/press-releases/norton-receives-assurancesfrom-federal-bureau-of-prisons-that-hope ...............................................................................30 33https://www.bop.gov/about/facilities/residential_reentry_management_centers.j sp ............................................................................................................................................7, 8
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https://www.bop.gov/coronavirus/covid19_status.jsp ...................................................................34 https://www.politico.com/f/?id=00000171-4255-d6b1-a3f1-c6d51b810000..........................15, 17 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in
Correctional and Detention Facilities https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html ........................33 Local Civil Rule 5.4 .................................................................................................................21, 47 Local Civil Rules 7 and 65.1............................................................................................................5 Prisons, Completing the Transition..................................................................................................8 Residential Reentry Centers Assessment - Recommendations Report (August 22, 2016), https://www.justice.gov/archives/dag/page/file/914006/download....................9, 11, 19 Statement of Work (2015), available at https://beta.sam.gov/opp/88476aaf6f07442681e45f3520a88f3e/view?keyword s=RFP-200-1270-ES&sort=-relevance&index=opp&is_active=true&page=1 .......................19 Statement of Work, at 1 ..................................................................................................................12
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DEFENDANT HOPE VILLAGE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS’
APPLICATION FOR A TEMPORARY RESTRAINING ORDER
Defendant Hope Village, Inc. (Hope Village), by counsel, pursuant to Federal Rule of Civil Procedure (FRCP) 65, and Local Civil Rules 7 and 65.1, respectfully submits this memorandum of points and authorities in opposition to the application of plaintiffs Thurman Williams and Ronald Ian Boatright for a temporary restraining order (TRO), set for telephonic argument before the Court at noon on Tuesday, April 7, 2020.1
As the discussion below reflects, the grounds for denying the application for a TRO are straightforward: Hope Village is the wrong defendant, on the wrong claim, at the wrong time:
 Hope Village is the wrong defendant because plaintiffs’ goal in this lawsuit is to effect institutional change – the conditions under which plaintiffs are detained – and Hope Village, a contractor to the other defendant agencies and under their statutory, regulatory and contractual direction, does not determine the conditions of plaintiffs’ detention. Moreover, most of plaintiffs’ complaints regarding things that Hope Village can control, such as the amount of available soap in the facility, are demonstrably wrong or based on a misunderstanding of how residential reentry centers are run.
 Plaintiffs’ claim is the wrong one because plaintiffs ask the Court to use a claim under the common law of negligence to displace existing statutory, regulatory and contractual
1 Plaintiff respectfully reserves its rights to timely seek dismissal of this matter pursuant to FRCP 12, and to oppose plaintiffs’ request for class certification pursuant to FRCP 23.
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layers of federal and District supervision, and to intervene in a very complex administrative process of placing offenders in home confinement.  Finally, plaintiffs’ claim is brought at the wrong time because on April 3, 2020 -- the day after this lawsuit was brought -- the Justice Department began a titanic effort to move offenders into home confinement across the country to mitigate COVID-19 risk – a complicated, nationwide effort which will require rapid assessments of punishment, health and community risk by the Federal Bureau of Prison. Were plaintiffs to succeed in their demand that the Court intercede, the plaintiffs’ demand – immediate release of detainees at the Court’s direction – would almost certainly collapse that delicate balance in our community, and would supplant the defendant agencies’ oversight over Hope Village. Rather than conserving resources to pay its staff and maintain its business through the pandemic, Hope Village would have to divert critical resources to this lawsuit. The plaintiffs’ claim at this time, in other words, would make an overwhelmingly difficult situation almost impossible. I. BACKGROUND This case stems from services that Hope Village provides under contract to the federal government and to the District of Columbia, as a residential reentry center or “halfway house.” A residential reentry center such as Hope Village provides supervised housing and services to persons awaiting trial, or returning to their communities from incarceration. A residential reentry center is not a prison, but rather a residential center located by design in the community
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to which offenders will in time return.2 For the federal government, Hope Village also supervises offenders who may complete their periods of sentencing at a private location, typically a residence, under “home confinement.”
A. Hope Village – Residential Reentry Center Hope Village is a woman-owned small business located at 2840 Langston Place, S.E. in Washington, D.C. Although a small business, it is among the largest employers in the District’s Ward 8, and has been in business at that location since the 1970’s. Hope Village provides residential reentry services to the Federal Bureau of Prisons, and Hope Village is the largest residential reentry center in the federal system. See Bureau of Prisons, Completing the Transition, List of RRC Contracts.3 Hope Village currently oversees over 200 residents under contract with the Bureau of Prisons, and an additional roughly 30 men from the Bureau of Prisons are on home confinement (discussed further below). Hope Village also provides services under contract to the District of Columbia Department of Corrections (DOC), Contract No. DCFL-2014-C-1401.4 These are primarily pretrial services, see id. sec. C, for as the Department’s website explains, as “a result of the National Capital Revitalization and Self-Government Improvement Act of 1997, sentenced
2 See BOP, Completing the Transition – Reentry Assistance Reduces Recidivism (“The BOP contracts with residential reentry centers (RRCs), also known as halfway houses, to provide assistance to inmates who are nearing release. RRCs provide a safe, structured, supervised environment, as well as employment counseling, job placement, financial management assistance, and other programs and services. RRCs help inmates gradually rebuild their ties to the community and facilitate supervising ex-offenders' activities during this readjustment phase.”), https://www.bop.gov/about/facilities/residential_reentry_management_centers.jsp. 3 https://www.bop.gov/about/facilities/residential_reentry_management_centers.jsp. 4 Hope Village’s contract with the D.C. Department of Corrections has been extended to April 30, 2020 (per Modification M0013) and then to May 31 (M0016).
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felons [in the District of Columbia court system] are transferred to the Federal Bureau of Prisons.” 5 The DOC website further explains the role of residential reentry centers – still often referred to as “halfway houses” – such as Hope Village in the District’s prison system:
The DC Department of Corrections contracts with several community release programs who operate facilities known as community correctional centers or halfway houses. The agency has contracts with three private and independently operated halfway houses [including] . . . Hope Village. The US District Court for DC and the Superior Court of DC place pretrial offenders and sentenced misdemeanants in halfway houses as an alternative to incarceration. The halfway houses offer a variety of educational opportunities and other programming services . . . . Id. B. Residential Reentry Center in the Federal BOP System As a residential reentry center in the federal system, Hope Village acts at the direction of the Bureau of Prisons in supervising former prisoners assigned to the residential reentry center by the Bureau of Prisons. See 18 U.S.C. § 3624 (“A prisoner placed in prerelease custody pursuant to this subsection who is placed at a residential reentry center shall be subject to such conditions as the Director of the Bureau of Prisons determines appropriate.”). As the chart below from a 2016 Deloitte report for the Bureau of Prisons shows, the Bureau of Prisons has been contracting with residential reentry centers for over 40 years.6 As a result, the statutory structure governing that contracting system is quite mature.
5 https://doc.dc.gov/page/correctional-facilities. 6 Deloitte Development LLC, U.S. Department of Justice - Bureau of Prisons - Residential Reentry Centers Assessment - Recommendations Report (August 22, 2016), https://www.justice.gov/archives/dag/page/file/914006/download [hereinafter “2016 Deloitte Report”].
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Figure 1: Deloitte 2016 Report, at 4.
1. Federal Bureau of Prisons Controls Conditions of Custody at Federal Residential Reentry Centers
By statute, during the period of prerelease custody that a former prisoner spends at a residential reentry center, the conditions of custody – and the possible return of that person to prison, for example for an additional violation – are controlled by the Bureau of Prisons. Id. § 3624(g)(5) (“If a prisoner violates a condition of the prisoner’s prerelease custody, the Director of the Bureau of Prisons may impose such additional conditions on the prisoner’s prerelease custody as the Director of the Bureau of Prisons determines appropriate, or revoke” the
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Case 1:20-cv-00890-RC Document 30 Filed 04/06/20 Page 11 of 48 prisoner’s prerelease custody and require the prisoner to serve the remainder of the term of imprisonment to which the prisoner was sentenced, or any portion thereof, in prison. “If the violation is nontechnical in nature, the Director of the Bureau of Prisons shall revoke the prisoner’s prerelease custody.”).
As the 2016 Deloitte Report showed, at 30, the conditions of living for offenders at residential reentry centers are set in many important ways by the contract (the “Statement of Work,” or “SOW”) between the Bureau of Prisons and the contractor RRC (see chart below).
Figure 2: Deloitte 2016 Report, supra, at 30.
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The Bureau of Prisons solicitation for the next contract for RRC services in the District of Columbia and the surrounding counties, which is a public document, Solicitation No. RFP-2001270-ES,7 confirms the Bureau of Prisons’ close control of conditions at the residential reentry centers. The RRC Statement of Work has not changed since May 2015, and by its terms it “sets forth the contract performance requirements for the management and operation of a RRC for federal residents.” Statement of Work, at 1. Under the Statement of Work, the Bureau of Prisons “reserves the right to conduct announced and unannounced inspections of any part of the facility at any time and by any method to assess contract compliance.” Id. at 3. The contractor is required to “develop operational policies and procedures that follow the requirements contained in this [Statement of Work] and of generally accepted correctional practice as defined by the BOP.” Id. at 4. The contractor is then to provide copies of its policies and procedures (as updated) to the Bureau for review. Id. The contractor is required to document, and prove, that it is meeting all the requirements of the Statement of Work, id. at 8, and the Bureau of Prisons reserves the right to change those requirements at any time, subject to the normal changes process for federal contracts, id. at 2. The Statement of Work includes extensive detail regarding health and safety requirements, see, e.g., id. at 25-27, 34-40 & 46, and the Bureau of Prisons has updated the RRC operational guidance in 2019 to implement the Second Chance Act, see Federal
7 https://beta.sam.gov/opp/88476aaf6f07442681e45f3520a88f3e/view?keywords=RFP-2001270-ES&sort=-relevance&index=opp&is_active=true&page=1. The solicitation documents, including the Statement of Work, are available at this site. Hope Village’s current contract is governed by an older, more abbreviated Performance Work Statement , but that current contract is set to expire on April 30, 2020, see Bureau of Prisons, List of RRC Contracts, https://www.bop.gov/about/facilities/residential_reentry_management_centers.jsp (database of RRC contracts nationwide), and Hope Village has received no word from the Bureau of Prisons that its contract will be extended.
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Bureau of Prisons, Home Confinement under the First Step Act (Apr. 19, 2019), available at https://sentencing.net/wp-content/uploads/2019/04/Federal-Home-Detention-OperationsMemorandum-April-2019.pdf, and again in recent weeks in response to the COVID-19 pandemic, see BOP Implementing Modified Operations, https://www.bop.gov/coronavirus/covid19_status.jsp. In sum, the Bureau of Prisons sets the standards for operations of residential reentry centers by contract, and has regularly updated those standards as circumstances and legal requirements have changed.
In housing an offender, a residential reentry center which serves the Federal Bureau of Prisons will be subject to the Bureau of Prisons’ assessments of the risks posed by the offender. Id. § 3624 (g)(6) (“The Attorney General, in consultation with the Assistant Director for the Office of Probation and Pretrial Services, shall issue guidelines for use by the Bureau of Prisons in determining . . . [t]he appropriate type of prerelease custody or supervised release and level of supervision for a prisoner placed on prerelease custody pursuant to this subsection; and . . . consequences for a violation of a condition of such prerelease custody by such a prisoner, including a return to prison and a reassessment of evidence-based recidivism risk level . . . .”).
2. Bureau of Prisons Sets Conditions for Home Confinement The Bureau of Prisons may assign the offender to different types of prerelease custody. One type of prerelease custody contemplated by the governing statute is home confinement. Although (as is the case with Hope Village) the residential reentry center may serve the Bureau of Prisons by addressing home confinement under contract, the conditions for home confinement are controlled by the Bureau of Prisons.
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The statutes governing the Bureau of Prisons’ authority confirm the agency’s authority over home confinement. By law, during an offender’s term with a residential reentry center, the offender may be placed on home confinement under the Bureau of Prisons’ direction. 18 U.S.C. § 3624 (g) (2) (“A prisoner shall be placed in prerelease custody as follows: . . . Home confinement.”). In normal times, not all offenders go to home confinement: the 2016 Deloitte Study, supra, at 17, reported that while only a small number of offenders went directly to home confinement, fully 59% of the offenders sent by the Bureau of Prisons to residential reentry centers (RRC’s) nationwide in fiscal year 2015 never went to home confinement (HC) at all before release. (See accompanying chart.)
Figure 3: Deloitte 2016 Report, supra, at 17.
During the period of home confinement, the former prisoner remains under the direction and control of the Bureau of Prisons. 18 U.S.C. § 3624(g)(2) (“a prisoner placed in prerelease custody . . . who is placed in home confinement shall . . . remain in the prisoner’s residence, except that the prisoner may leave the prisoner’s home in order to, subject to the approval of the Director of the Bureau of Prisons . . . perform a job . . . participate in evidence-based recidivism
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reduction programming . . . perform community service . . . participate in crime victim restoration activities . . . receive medical treatment . . . attend religious activities; or . . . participate in other family-related activities that facilitate the prisoner’s successful reentry . . . and . . . comply with such other conditions as the Director determines appropriate” (emphasis added)).
3. Department of Justice’s Response to the COVID-19 Pandemic The Bureau of Prisons’ control and supervision of residential reentry centers has adapted since the U.S. Department of Health and Human Services declared a public health emergency regarding the COVID-19 virus in late January 2020. In an effort to reduce the risk of COVID-19 contagion, the Bureau of Prisons has accelerated the relocation of offenders from residential reentry centers to home confinement, and the Justice Department has used new authorities to facilitate this process of moving thousands of offenders – which is, in fact, precisely what the plaintiffs have requested in their complaint, regarding the few hundred residents at Hope Village. Under Section 12003 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, Public Law No. 116-236 (Mar. 27, 2020), the Attorney General, on declaring an emergency related to the COVID-19 pandemic, may declare prisoners in the custody of the Bureau of Prisons (which is part of the Department of Justice) eligible for home confinement earlier in their sentence periods. The Attorney General did so by memorandum of April 3, 2020.8 This meant that many more prisoners in the federal system could be sent to home confinement, as a means of mitigating the effects of the COVID-19 pandemic.
8 Available at https://www.nacdl.org/getattachment/c80b217f-eada-4e3a-bdba-5413c3a8e103/agbarr-homeconfinement-040320.pdf and https://www.politico.com/f/?id=00000171-4255-d6b1a3f1-c6d51b810000.
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In responding to the pandemic by sending offenders to home confinement, the Bureau of Prisons will retain control over the conditions of the offenders’ confinement. By statute, the “Director of the Bureau of Prisons may modify the conditions” of home confinement if “the Director determines that a compelling reason exists to do so, and that the prisoner has demonstrated exemplary compliance with such conditions.” Id. The Bureau of Prisons also may shorten the period of home confinement. While generally “a prisoner who is placed in home confinement shall remain in home confinement until the prisoner has served not less than 85 percent of the prisoner’s imposed term of imprisonment,” under the applicable statute the Director may determine to apply less restrictive conditions “on prisoners who demonstrate continued compliance with the conditions of . . . prerelease custody, so as to most effectively prepare such prisoners for reentry.” The statute defines the Director’s authority to reduce the period of home confinement as follows: “In determining appropriate conditions for prisoners placed in prerelease custody pursuant to this subsection, the Director of the Bureau of Prisons shall, to the extent practicable, provide that increasingly less restrictive conditions shall be imposed on prisoners who demonstrate continued compliance with the conditions of such prerelease custody, so as to most effectively prepare such prisoners for reentry.” Id. § 3624 (g)(2)(A)(iv) & (4).
If a prisoner is placed in home confinement, under the terms of a 2018 law, the First Step Act (an important criminal justice reform initiative of the Trump administration), Public Law No. 115-391, 132 Stat. 5194 (Dec. 21, 2018), the prisoner is to be placed under electronic monitoring while at home. The 2018 statute says that a “prisoner placed in prerelease custody pursuant to this subsection who is placed in home confinement shall . . . be subject to 24-hour
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electronic monitoring that enables the prompt identification of the prisoner, location, and time.” This new requirement for electronic monitoring was incorporated into the same statutory provision quoted at length above, section 3624 of Title 18, United States Code. Section 104 of the First Step Act authorized appropriations of $75 million for the Bureau of Prisons to implement the Act.
Under 18 U.S.C. § 3624, the Bureau of Prisons may require alternate means of monitoring, so long as the Director determines that the alternative means are as effective or more effective as electronic monitoring. Id. (“If the electronic monitoring of a prisoner . . . is infeasible for technical or religious reasons, the Director of the Bureau of Prisons may use alternative means of monitoring a prisoner placed in home confinement that the Director determines are as effective or more effective than the electronic monitoring.”). In response to the COVID-19 pandemic, the Bureau of Prisons has substantially reduced the requirements for monitoring during the period of home confinement, most recently in the Bureau’s April 3, 2020 guidance to residential reentry center contractors, discussed below. In his April 3, 2020 memorandum, Increasing Use of Home Confinement at Institutions Most Affected by COVID19,9 Attorney General Barr explained that electronic monitoring could be waived for prisoners sent to home confinement:
I also recognize that BOP has limited resources to monitor inmates on home confinement and that the U.S. Probation Office is unable to monitor large numbers of inmates in the community. I therefore authorize BOP to transfer inmates to home confinement even if electronic monitoring is not available, so long as BOP determines in every such instance that doing so is appropriate and consistent with our obligation to protect public safety.
9 Available at https://www.nacdl.org/getattachment/c80b217f-eada-4e3a-bdba-5413c3a8e103/agbarr-homeconfinement-040320.pdf and https://www.politico.com/f/?id=00000171-4255-d6b1a3f1-c6d51b810000.
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The stated policy of the Department of Justice is thus to allow home confinement without electronic monitoring, if the circumstances require and so long as the Bureau of Prisons determines that doing so is consistent the Department’s obligations to protect public safety.
Offenders are sent from the Hope Village facility to home confinement after an extensive assessment by the Bureau of Prisons and Hope Village. While the date of eligibility for home confinement is readily calculated, the decision to send an offender back into the community for home confinement normally requires a complex assessment by the Bureau of Prisons and Hope Village, though under the statutory authorities referenced above the final determination to assign an offender to home confinement rests solely with the Bureau of Prisons.
Individuals otherwise eligible for home confinement may remain at Hope Village for any number of reasons, see Exhibit A, Declaration of Jeffrey Varone, at 9-11, such as:
 The individual has no home to return to (homeless), or the individual’s home has not been appropriately prepared (with a landline in the home, a “host meeting” (typically with the family), and a tour of the home (which can now be done virtually by videophone);
 The individual must be assigned a space in a shelter;  The individual is to be released to transitional housing (a form of residential
housing with fewer restrictions than a residential reentry center);  The individual’s parole officer (whose authority is described in Chapter 21 of the
2015 Statement of Work, supra) has denied a release plan, based on perceived risk to the community or otherwise;
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 The individual may be considered higher risk because of other violations, sometimes committed at a prior institution, which hold that individual to “Community Corrections Component” (CCC), i.e., a more restrictive stage before pre-release and then home confinement;10
 The individual may pose higher risk because of recent discipline issues; and,  The individual may be awaiting local or more distant relocation (as the chart
below reflects, an offender may be placed at a residential reentry center far from his home) (see accompanying chart from the 2016 Deloitte Report, supra, at 20).
Thus, while traditionally a significant number of Hope Village residents have been assigned to home confinement, that process normally has required extensive of risk assessments, communications and coordination regarding conditions at the home, and
10 See Statement of Work (2015), at 51-52 , available at https://beta.sam.gov/opp/88476aaf6f07442681e45f3520a88f3e/view?keywords=RFP-200-1270ES&sort=-relevance&index=opp&is_active=true&page=1.
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other logistical details. With the intensification of the COVID-19 pandemic, that wellestablished process has changed.
On April 3, 2020, as the COVID-19 pandemic gained force in the District of Columbia and elsewhere, the Bureau issued revised guidance for home confinement for the duration of the pandemic. Ex. B, Bureau of Prisons, Coronavirus (COVID-19) Precautions/Modified Operations for Residential Reentry Centers oversight of Home Confinement Residents (Apr. 3, 2020). The guidance said that the Bureau of Prisons’ “goal is to utilize the home confinement (HC) program to the fullest extent practicable as outlined in the Attorney General’s memorandum dated March 26, 2020 while maintaining accountability and protecting staff, offenders, and the public.” Referrals to home confinement, the guidance said, “should be processed within 3 days of receipt.” Referrals, said the guidance, “must be made based on appropriateness for home confinement,” and “[c]onsideration should be given to whether the offender has a demonstrated a verifiable reentry plan that will prevent recidivism and maximize public safety.” This is in keeping with Attorney General’s memorandum of April 3, 2020 (quoted below), which emphasized the need to preserve community safety when placing offenders in home confinement.
In an electronic mail exchange with a senior Hope Village manager at the end of April 3, however, an official of the Bureau of Prisons stated that home confinement of former offenders would be ordered regardless of the public safety issues posed by an offender being assigned to
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home confinement. See Exhibit A, Declaration of Jeffrey Varone, at 11-12.11 The original electronic mail message from Hope Village explained why the offender at issue had not been assigned to home confinement in the community, because of the potential threat he posed:
>>> [HOPE VILLAGE NAME REDACTED] <[REDACTED]@hopevillageinc.com> 4/1/2020 4:24 PM >>> Ms. [BOP NAME REDACTED]: I know that you are still waiting on guidance on handling the order to place Mr. [REDACTED] on Home Confinement ( HC ) but I would like to express some of the concerns we have and why we feel he is currently inappropriate for HC placement. Mr. [REDACTED] just arrived at our facility on March 11, 2020 having been convicted of three serious offenses which resulted in him having served 38 years in prison. His offenses were assault with intent to commit robbery; armed robbery, murder 1 while armed, carrying a pistol without a license; and attempted robbery. He also incurred a total of 59 disciplinary reports while confined. He is scheduled for release on July 22, 2020 by way of parole. The order stated that Mr. [REDACTED] reported that he suffered from a chronic health condition, however he arrived to us from USP McCreary without the mention of being in need of medication for any condition. It should also be noted that the order seemed to just recommend he be placed on HC. Additionally, he has a separation order from the family of the individual he murdered. I hope we have adequately expressed our concerns. The response that came from a more senior Bureau official bluntly stated that if offenders “are eligible, they are to go to [home confinement],” because the pressures “to put ALL inmates on [home confinement] are immense”:
From: [BOP NAME REDACTED] <[redacted]@bop.gov> Sent: Friday, April 03, 2020 6:30 PM 11 In keeping with the privacy protection policy reflected in Local Civil Rule 5.4, the electronic mail messages have been redacted for personally identifiable information.
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To: [BOP NAME REDACTED] <[REDACTED]@bop.gov>; [HOPE VILLAGE NAME REDACTED] <[redacted]@hopevillageinc.com> Subject: Re: Donnell Butler REG # 03019-000 Concerns are noted. Process his paperwork and forward to Ms. [REDACTED] for approval. Inmate will be paroled and in the community in a few months regardless. We are in unprecedented times and the pressure to put ALL inmates on HC are immense. There is no negotiating or leeway. If they are eligible, they are to go to HC. [BOP NAME REDACTED] Residential Reentry Manager Baltimore RRM Office 400 First Street, NW, 5th Floor Washington, DC 20534 (office) [REDACTED] (email) [REDACTED]@bop.gov Id., Declaration of Jeffrey Varone, at 11-12. Thus, while the policy of the Department of Justice and the Federal Bureau of Prisons is to place offenders in home confinement in the community only after a careful risk assessment, as mandated by statute, in practice those assessments appear to be collapsing under public pressures brought by the COVID-19 pandemic. C. Responsibility as a Halfway House to the D.C. Department of Corrections The statutory and regulatory structure governing Hope Village as a halfway house serving the District of Columbia is analogous to the federal scheme, although Hope Village’s work for the District does not extend to home confinement. The D.C. Code states that a judicial officer may impose a least restrictive condition on an offender “that the judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community, which may include . . . [r]eturn to custody for specified hours following release for employment, schooling, or other limited purposes.” In practical terms, this means that this Court and the Superior Court “place pretrial offenders and sentenced misdemeanants in halfway houses as an alternative to incarceration because offenders convicted
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of a felony in the District are transferred to the federal system for incarceration”12 – and thus those District offenders reenter the community through the Federal Bureau of Prisons’ residential reentry program, described above.
The District of Columbia Municipal Regulations use an older term to define residential reentry centers – “community correctional centers” – which defines residential facilities “where inmates are placed to begin the process of reintegration into society and that allow work release and return to detention while still providing security, monitoring, and support.” 28 D.C. Mun. Regs. § 533.4 Under those regulations, the “work release program administered by the Department of Corrections shall consist of confinement of inmates in either Community Correctional Centers” or in private residences. Id. § 533.1. The regulations make clear the Department of Corrections’ authority, in establishing the work release program, to set the “terms and conditions under which a person granted work release privileges may be released from actual custody at the place of confinement during the time necessary to proceed to the person's place of employment or other authorized places, perform specified activities, and return to a place of confinement designated by the Director of the Department of Corrections.” Id. § 533.2. Thus, as
12 See, e.g., Washington Lawyers Committee for Civil Rights and Urban Affairs, D.C. Prisoners: Conditions of Confinement in the District of Columbia, at 4 (June 11, 2015) (“Individuals in the DCDOC system are generally subject to confinement at either of two facilities within the District, the D.C. Jail and the CTF, . . . or at one of the District’s three contracted halfway houses. Prisoners convicted of a felony are transferred to a Federal Bureau of Prisons (BOP) facility and may become eligible for parole. . . . ”), http://www.washlaw.org/pdf/conditions_of_confinement_report.PDF; id. at 47 (“The halfway houses serve as an alternative to incarceration for individuals awaiting trial and for sentenced misdemeanants. The goal of halfway houses is to provide a number of important services designed to help residents with educational, professional, and interpersonal skills, as well as providing support for residents’ mental and physical health and wellbeing.”).
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with the Federal Bureau of Prisons, the D.C. Department of Corrections retains control over the conditions under which the District’s offenders will be held at Hope Village.
D. Close Community Oversight of Hope Village The oversight and control over Hope Village exercised by the Federal Bureau of Prisons and the District’s Department of Corrections are not mere legal abstractions. Instead, both agencies and other stakeholders – including a statutorily authorized watchdog agency in the District of Columbia government – exercise ongoing oversight, to ensure that Hope Village continues to meet the government standards, especially now as the COVID-19 pandemic descends on the District of Columbia in full strength.
1. The Corrections Information Council Report on Hope Village In a series of very recent public reports, the District agencies charged with oversight of the District’s correctional facilities have confirmed that Hope Village is meeting the applicable standards for care in preparing for the COVID-19 pandemic. First, the agency charged by statute to oversee correctional institutions housing District residents, the District’s Correctional Information Council,13 concluded that Hope Village is fully compliant with applicable standards for health, safety and sanitation.14 The CIC, a watchdog agency which already had scheduled a thorough review of Hope Village, 15 issued a public report that it had conducted a detailed
13 See D.C. Code § 24-101.01. 14 CIC, CIC Visit to Hope Village on March 26, 2020 (Mar. 27, 2020), https://cic.dc.gov/sites/default/files/dc/sites/cic/release_content/attachments/Now%20Hope%20 Village%20CIC%20Statement%203_27_20%20-compressed.pdf. 15 D.C. Corrections Information Council, (“The CIC is planning an evaluation of Hope Village, with an on-site inspection in early February 2020. We would like to talk to any current or recent residents of Hope Village. We want to hear any feedback you’re willing to share!”).
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investigation of Hope Village, and that Hope Village had fully met each point of concern in its preparations for the COVID-19 pandemic:
COVID-19 testing and treatment: As of the time of the CIC visit (March 26, 2020), “no staff had been tested for Covid-19, and there were no concerns about staff health.”16 Three residents had been tested for COVID-19, “with two tests coming up negative, and one still awaiting results.” CIC reviewed Hope Village’s first aid training and supplies, “including rehydration supplies, masks, gloves, thermometers, several packages of protective suits, and additional cleaner and first aid supplies.” Foods/Meals: The CIC reported that Hope Village staff “indicated that they are trying to achieve social distancing during meals by opening up a second dining area in a vacant apartment. . . . Staff indicated that all food deliveries are currently happening as scheduled. In addition to viewing storerooms for non-perishable food (large cans of vegetables, fruit, and beans, and large bags of rice and flour) near the kitchen facilities, the CIC viewed an empty apartment currently being used to store additional supplies, which was well-stocked with cases of canned vegetables, canned fruit, rice, pasta, and condiments. . . . ” Residents can also come down between meals to refill liquids with permission from staff.”
16 This was in keeping with the guidance issued by the District of Columbia on March 25, 2020: “Doctors decide on COVID-19 testing. If an individual is experiencing symptoms including cough, fever, and shortness of breath, they should consult their doctor before visiting. If their doctor decides that a COVID-19 test is warranted, the doctor has the ability to swab the appropriate areas and send the swabs to a private lab for testing or to work with DC Health to send it to the District’s Public Health Lab.” https://coronavirus.dc.gov/testing.
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Cleaning Supplies: The CIC reviewed “Hope Village's current stock of paper products and cleaning supplies,” and concluded: “The CIC found that Hope Village possesses an adequate supply of hygiene and cleaning products for staff and residents.” The CIC also “noted that the DOC [D.C. Department of Corrections] conducted its own independent investigation, and found that Hope Village has adequate hygiene and cleaning supplies.” The CIC reported that “Hope Village staff indicated that residents are still required to clean their apartments each morning, and cleaning supplies including disinfectant, are available in each building for the residents to use at any time.” Staff also told the CIC that “each resident has their own bar of soap; they are not required to share with other residents. . . . [T]oilet tissue is distributed on Tuesdays and Fridays each week, with quantities dependent on the number of residents in a unit. Staff are also cleaning hightraffic areas more frequently, particularly light switches and door handles.” Supply drop-offs: The CIC reviewed a Hope Village memorandum of March 20, 2020 describing the policy for family members to drop off supplies to residents at Hope Village. “Each building at Hope Village has a designated day and time for drop-offs,” the CIC reported, “and families are permitted to provide toiletries, packaged food, and bottled water. Families are not allowed to provide cleaning supplies due to safety issues.” Releases/transfers: The CIC reported that, according to the BOP Residential Reentry Manager, “applications for home confinement are being processed with modifications.” The CIC noted that the “BOP still requires that the proposed location have a landline, but is allowing home confinement locations to be reviewed via Skype, and for host family visits to be conducted by phone. The BOP has also waived social pass requirements for
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home confinement.” Hope Village staff “indicated that they had four individuals releasing to home confinement this week, and four more planned for next week.” The BOP Residential Reentry Manager told the CIC that “transfers from BOP institutions to Hope Village are still ongoing by order of the Department of Justice.” Individuals being released from BOP institutions, the CIC reported, “are being screened for Covid-19 per BOP's current policy on transfers (including temperature and symptom checks).” Other Daily Functions: The CIC report noted that “Hope Village executive staff indicated that they are still conducting groups, including drug treatment and transitional skills journaling, but they are operating in smaller groups while having people sit several seats away from each other to maintain social distance.” Mental health counseling was “also still being provided, and staff indicated that they have suggested setting up phone sessions with Community Connections for residents.” Residents were “being allowed out of their buildings into the parking lot for 30 minutes at a time to get fresh air,” and subsistence payments “were suspended as of March 20, 2020.” The author of the report, the CIC’s executive director, noted that this review of points of concern regarding COVID-19 preparations was part of continuing oversight by both the CIC and the Federal Bureau of Prisons. “As part of its ongoing oversight activities,” the agency reported, “the CIC has been in regular correspondence with Hope Village executive staff for the last several weeks regarding their preparations and response to the novel coronavirus outbreak. Hope Village has advised the CIC several times during the last two weeks regarding their operational changes, which includes limiting residents' ability to go out into the community, discontinuing family visitation, and adjusting programming and services within the facility.” Id. These
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changed operations were reported to both the CIC and the Federal Bureau of Prisons, which participated in the inspection launched by the CIC. Id.
2. The D.C. Department of Corrections Report on Hope Village As the Corrections Information Council report noted, the CIC was not acting alone in overseeing Hope Village as the COVID-19 pandemic accelerated – both the D.C. Department of Corrections and the Federal Bureau of Prisons shared in the CIC’s review of Hope Village. In a report published on the same day, March 27, 2020, Exhibit C, the D.C. Department of Corrections noted that Department’s Office of Community Corrections staff “visited Hope Village on March 26, 2020 to investigate the claims of ‘ill’ Hope Village residents and lack of hygiene and cleaning products.” The visit was prompted by The Reentry Action Network (RAN), an activist group which disseminated an e-mail that called for organizations to donate the following goods to Hope Village:
 Bottled Water – the Network “was told that residents were drinking out of the sink”  Hand sanitizer  Disinfecting wipes/sprays/liquid  Toilet paper  Paper towels  Hand soap  Other toiletries such as tooth brushes, toothpaste, floss, body wash  Snacks
The Department of Corrections report rebutted the activists’ assertions. Plentiful supplies for hygiene and food: When the Department of Corrections
investigated on March 26, 2020, the Department found that “Hope Village is in compliance with hygiene and cleaning products for staff and residents. A tour of the facility's storerooms
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revealed large quantities of cleaning products, toilet paper, paper towels, soap, food, and snacks.” The Department of Corrections report noted that although “Hope Village does not supply bottled water to residents . . . bottled water is available for purchase from the vending machine and water is available from the soft drink/juice dispenser in the kitchen.”
Personal hygiene: The Department of Corrections report also concluded that adequate personal hygiene products were being provided to residents. “Toilet paper is provided to residents on Tuesdays and Fridays. Personal hygiene products such as toothbrushes, toothpaste, floss and body wash is normally purchased by the residents; however, if a resident is in need Hope Village maintains a supply of ‘welfare/indigent kits’ that contain a toothbrush, toothpaste, razor, deodorant and a hair comb.” Beginning on March 23, 2020, in response to the pandemic, Hope Village had begun a “drop-off schedule that allows residents to have one family member to drop off necessities,” such as “bottled water, hygiene items such as disinfectant wipes, hand sanitizer, hand soap and snacks (such as hard candy).” During their visit to the facility, Department of Corrections staff “witnessed family members deliver the necessities.”
Medical supplies: The Department of Corrections also found that Hope Village “had large quantities of masks and gloves for staff and residents. . . . There is one BOP resident currently assigned to an apartment to himself who was suspected of having COVID-19 due to flu-like symptoms.” Per the Hope Village Director, that individual “was tested and does not have COVID-19; but as a precaution, he [had] been separated.” No other residents had complained of flu-like symptoms. Residents and staff had been provided information on COVID-19 through a resident meeting and staff meeting. “Precautions, symptoms and social
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distancing were discussed. Additionally residents have access to the media via televisions in the rooms.”
Social Distancing: To assist with social distancing to mitigate the risk of COVID-19, Hope Village had “turned an empty apartment living room area into a dining area for residents. Therefore, in addition to main dining room, residents utilize this area (Room 203) to eat their meals.” One resident complained that jelly and jam were served in an open bowl, with each resident touching the same spoon. Hope Village “advised that the complaint was previously communicated and that as of breakfast the morning of March 26, 2020, Dietary staff now put the jelly/jam on the serving trays. The serving trays are washed and disinfected after every use.”
After its extensive on-site inspection, the Department of Corrections “Office of Community staff left with the impression that the allegations noted regarding lack of supplies, food etc. were false and Hope Village has more than adequate supplies to keep staff and residents safe during the COVID-19 Pandemic.”
3. Federal Bureau of Prisons Report on Hope Village to the District’s Congresswoman Eleanor Holmes Norton
In concert with a request from Hope Village directly to the Bureau of Prisons, Congresswoman Eleanor Holmes Norton asked the Bureau of Prisons to inspect Hope Village’s facilities if the Bureau of Prisons had any concerns regarding health, safety or sanitation, in a letter recounted by press release of March 28, 2020.17 The press release stated:
Norton Receives Assurances from Federal Bureau of Prisons that Hope Village is Safe Apr 1, 2020 Press Release 17 https://norton.house.gov/media-center/press-releases/norton-receives-assurances-from-federalbureau-of-prisons-that-hope
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WASHINGTON, D.C. — Congresswoman Eleanor Holmes Norton (D-DC) announced today that the Federal Bureau of Prisons (BOP) has assured her that Hope Village, the men’s halfway house in the District of Columbia, has enough supplies for all residents and is clean and sanitary. BOP also informed Norton that, as she requested, subsistence fees, which can be up to 25% of a resident’s wages, have been waived at halfway houses nationwide. BOP also said that there are currently no known COVID-19 cases at Hope Village. “This positive and prompt assurances from the Federal Bureau of Prisons that the residents at Hope Village are being taken care of in a safe manner, with everything they need, is reassuring to families and to D.C. residents,” Norton said. (Emphasis added.) The Bureau of Prisons thus confirmed that Hope Village “has enough supplies for all residents and is clean and sanitary.” The Bureau of Prisons’ positive report was apparently based, at least in part, on information gained while working with the CIC on its inspection of Hope Village (see above). E. Plaintiffs’ Lawsuit On April 2, 2020, plaintiffs brought this action seeking injunctive relief against government defendants the Federal Bureau of Prisons (Count I) and the D.C. Department of Corrections (Count II), and against Hope Village which houses residents from both the federal and District penal systems (Count III). Plaintiffs are residents at Hope Village. Plaintiffs’ complaint seeks injunctive relief and no damages, and asserts a single count against Hope Village, grounded in the District of Columbia’s common law of negligence. See Complaint ¶¶ 97-100. Plaintiffs claim that defendant Hope Village, Inc. has failed to follow applicable standards of care in maintaining a residential reentry center in the District of Columbia, and seek a temporary restraining order in this matter, specifically that the Court order “release [of] enough people such that the remaining people can be housed safely and in compliance with CDC
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[Centers for Disease Control and Prevention] guidance at Hope Village.” Plaintiffs’ application for a TRO will be heard by the Court at oral argument on Tuesday, at noon. II. ARGUMENT
Hope Village requests that plaintiffs’ application for a TRO be denied because, for the reasons addressed in more detail in the argument below, plaintiffs have failed to make the requisite clear showing that they are entitled to this extraordinary injunctive relief. See, e.g., Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 21 (2008).
The standard for early injunctive relief is well-established. Plaintiffs seeking a preliminary injunction must establish that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, and that an injunction is in the public interest. Winter, 555 U.S. at 20 (citing Munaf v. Geren, 553 U.S. 674 (2008); Amoco Production Co. v. Gambell, 480 U.S. 531, 542 (1987); Weinberger v. Romero–Barcelo, 456 U.S. 305, 311–312 (1982)).
As the Supreme Court has made clear, early injunctive relief of this kind “is an extraordinary remedy never awarded as of right.” Winter, 555 U.S. at 24 (Munaf, 553 U.S. at 689–90). The Court must balance the competing claims of injury and consider the effect on each party of the granting or withholding of the requested relief. Id. (citing Amoco Production Co., 480 U.S. at 542). In exercising its discretion, the Court must pay particular regard for the public consequences in employing the extraordinary remedy of injunction. Id. (citing Romero– Barcelo, 456 U.S. at 312; Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 500 (1941)).
A. Plaintiffs Have Not Shown That They Are Likely to Succeed on the Merits
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Plaintiffs’ claim against Hope Village is an extraordinary one: they make unsupported claims that Hope Village acted negligently, and then use those baseless claims to ask the Court to leverage the common law of negligence to force Hope Village to move offenders out of its facility – an act that Hope Village lacks any statutory, regulatory or contractual authority to do.
As the discussion above showed, Hope Village is closely bound by law – by the statutes, regulations and contracts governing detention by Hope Village’s customers, the Federal Bureau of Prisons and the District’s Department of Corrections – to follow the standards set by the defendant agencies. Under established precedent in the District of Columbia, however, where (as here) a defendant has followed official standards, an action in negligence must fail because the defendant has followed the appropriate standard of care. See, e.g., Chadbourne v. Kappaz, 779 A.2d 293, 296 (D.C. App. 2001). That is especially true where, as here, a government contractor is following government standards of care. See, e.g., Boyle v. United Technologies Corp., 487 U.S. 500 (1988).
Plaintiffs have largely ignored the customer agencies’ standards (which were detailed above), and have instead cited only two official standards for COVID-19: the guidance issued by the CDC,18 and guidance issued by the Bureau of Prisons itself. See Complaint ¶¶ 70-73. But the CDC guidance was just that, however – general guidance, aimed at much larger correctional institutions – as was the guidance from the Bureau of Prisons. Most importantly (and plaintiffs completely ignore this), the Bureau of Prisons guidance explicitly indicated that the guidance
18 Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html.
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was to be adapted to the circumstances of a residential reentry center. See Bureau of Prisons, BOP Implementing Modified Operations (“PRIVATE DETENTION CONTRACTORS: This COVID-19 guidance is being shared with private prisons and RRCs for dissemination to staff and inmates in these facilities, so that similar protocols can be implemented.”).19 The “standards” upon which plaintiffs rely – the foundation of their negligence claim – thus dissolve into the unspecific.
What plaintiffs also ignore is that inspection after inspection done contemporaneously by those agencies legally charged to oversee found that Hope Village was meeting the applicable standards of care – and, indeed, was addressing many of the same issues in COVID-19 preparations raised by plaintiffs their complaint. The table below references the key issues raised by plaintiff, and then cites the reports from the Corrections Information Council (which works closely with the Bureau of Prisons to oversee corrections facilities in the District) and the D.C. Department of Corrections, and the accompanying declaration of Hope Village chief executive officer Jeffrey Varone, Ex. A, all of which confirm that Hope Village was meeting the agencies’ standards of care.
19 https://www.bop.gov/coronavirus/covid19_status.jsp. 34
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Plaintiffs’ Allegations

Corrections Information Council (3/27/20)

D.C. Department of Corrections (3/27/20)

J. Varone Declaration (4/6/2020)

Complaint ¶ 38: “The conditions in Hope Village facilities disregard all medical and public health directives for risk mitigation. Hope Village does not encourage or practice social distancing in its facilities. Furthermore, the structure and layout of Hope Village makes social distancing impossible.”
Complaint ¶¶ 42-44: “Hope Village still is admitting new prisoners. The CDC guidelines recommend screening for any new prisoners to detect potential COVID-19 symptoms. . . .

Found that Hope Village was complying with COVID-19 mitigation strategies, including social distancing, in part by using available space at the Hope Village complex.
“The BOP Residential Reentry Manager indicated that transfers from BOP institutions to Hope Village are still ongoing by order of the Department of Justice. Individuals

After its extensive on-site inspection, the Department of Corrections “Office of Community staff left with the impression that the allegations noted regarding lack of supplies, food etc. were false and Hope Village has more than adequate supplies to keep staff and residents safe during the COVID-19 Pandemic.”
“Residents and staff have been provided information on COVID-19 via a Resident Meeting and staff meeting. Precautions, symptoms and

“On March 30th a daily announcement was implemented, reminding staff and residents of the signs and symptoms of COVID-19 (fever, cough, shortness of breath), and how to prevent the spread of germs (frequent hand washing for 20 minutes; not touch face, eyes, mouth; over cough or sneeze; disinfect surfaces; and practice social distancing of at least 6 ft.). Staff continue to remind residents daily about social distancing as they meet in groups, while passing in hallways, at meal times, etc.”
“As soon as the state of emergency was declared on March 3, 2020, we conducted verbal screening of all staff at Hope Village for COVID-19 symptoms, and we continue this verbal screening with staff each day they report to work. Hope Village has generous leave policies so staff feel no compunction to come to work while ill, and we encourage staff to stay home if they are not feeling well. Hope Village is unable to conduct temperature screening at this time because we cannot find no-touch thermometers for

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Plaintiffs’ Allegations

Corrections Information Council (3/27/20)

D.C. Department of Corrections (3/27/20)

J. Varone Declaration (4/6/2020)

Defendants have admitted new individuals and prisoners without screening. Defendants are not screening staff each day.”

being released from BOP institutions are being screened for Covid-19 per BOP's current policy on transfers (including temperature and symptom checks).”

social distancing were discussed. Additionally residents have access to the media via televisions in the rooms.”

purchase in the marketplace given the extremely high demand.”

Complaint ¶¶ 45-46: “On March 20, 2020, Hope Village issued a shelter in place order for all prisoners. This order has exacerbated crowded conditions at Hope Village, because all of the prisoners must stay in the facility at all times. . . . Prisoners in Hope Village live in close quarters and cannot achieve the ‘social distancing’ needed to effectively

“[A]pplications for home confinement are being processed with modifications. The BOP still requires that the proposed location have a landline, but is allowing home confinement locations to be reviewed via Skype, and for host family visits to be conducted by phone. The BOP has also waived social pass

To assist with social distancing, Hope Village has turned an empty apartment living room area into a dining area for residents. Therefore, in addition to main dining room, residents utilize this area (Room 203) to eat their meals.

“On March 20, 2020 Hope Village issued a shelter in place order, restricting all non-emergency movement from the facility, including for all employment. Although this was a very tough decision, we felt that it was necessary at that time because on March 20th Governor Hogan issued a shelter-in-place order in Maryland where many of our residents worked, and we were concerned about how that may impact residents as they traveled to and from Maryland, especially with a scale back of public transportation. As well, we needed to help minimize the spread of the virus because our residents were travelling to so many different locations in the community and interacting with a host of different people with unknown COVID-19 statuses. Ten days later, on March 30th Mayor Bowser issued a shelter-in place order.”

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Plaintiffs’ Allegations

Corrections Information Council (3/27/20)

D.C. Department of Corrections (3/27/20)

J. Varone Declaration (4/6/2020)

prevent the spread of COVID-19. . . . Prisoners in Hope Village share apartments.”

requirements for home confinement. Hope Village staff indicated that they had four individuals releasing to home confinement this week, and four more planned for next week.”

Complaint ¶¶ 47-48: “The CDC recommended that correctional facilities provide no-cost access to soap, running water, and tissues to all prisoners. . . . Prisoners in Hope Village have limited access to hot water, soap, disinfectants, gloves, and masks. Hope Village has not provided hygiene and

“Staff also indicated that each resident has their own bar of soap; they are not required to share with other residents. Per staff, toilet tissue is distributed on Tuesdays and Fridays each week, with quantities dependent on the number of residents in a unit. Staff are also cleaning high-

“Effective Monday, March 23, 2020 Hope Village began a drop-off schedule that allows residents to have one family member to drop off necessities. . . . [N]ecessities are bottled water, hygiene items such as disinfectant

“There is no shortage of toilet paper and soap at Hope Village. On April 1, 2020 our stock included 2,549 rolls of toilet paper and 1,700 bars of soap, not counting supplies received that day, and we continue to replenish these items. Some residents complain about the type of soap because it is not the brand they like. . . . Hand sanitizers are not considered contraband at Hope Village. As part of our ongoing emergency preparedness, in early February, 2020 we still had hand sanitizers in stock. We placed those hand sanitizers throughout the facility for use by staff and residents. Our supply depleted, and despite our best efforts we cannot find hand sanitizers to purchase. Therefore, we advise residents and staff to use soap and water to wash their hands often for 20 seconds, the preferred method recommended by the CDC. . . . Hope

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Plaintiffs’ Allegations

Corrections Information Council (3/27/20)

D.C. Department of Corrections (3/27/20)

J. Varone Declaration (4/6/2020)

cleaning supplies to people incarcerated there. . . . Since the lockdown of the facility began on March 20, 2020, prisoners have to rely on family, if they have family in the area to drop off supplies.”

traffic areas more frequently, particularly light switches and door handles. Supply drop-offs Hope Village staff provided a memo dated March 20, 2020 describing the policy for family members to drop off supplies to residents at Hope Village. Each building at Hope Village has a designated day and time for drop-offs, and families are permitted to provide toiletries, packaged food, and bottled water.”

wipes, hand sanitizer, hand soap and snacks (such as hard candy). Attached is notification sent to residents on March 20, 2020 that includes the drop-off schedule. During the visit, OCC staff witnessed family members deliver the necessities.”

Village's contract does not include providing to nonindigent residents with personal hygiene products (beyond toilet paper and soap). Residents generally purchase these items on their own and/or receive them from family members. . . . For residents who cannot afford personal hygiene products, Hope Village has always provided indigent packages containing toothpaste, toothbrush, deodorant, comb, shaver, and shaving cream. We are now distributing these indigent packages to any resident who requests one.”

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Plaintiffs’ Allegations

Corrections Information Council (3/27/20)

D.C. Department of Corrections (3/27/20)

J. Varone Declaration (4/6/2020)

49. Complaint ¶¶ 49-52, 56: “Prisoners are responsible for cleaning and sanitizing their own apartments and common areas, including the shared bathrooms. . . . They frequently lack adequate cleaning supplies to do so. . . . Prisoners report that the cleaning supplies are not readily available and those that are available are watered down. . . . Lysol and alcohol-based cleaning

“The CIC viewed Hope Village's current stock of paper products and cleaning supplies. In the storage area near the kitchens, the CIC saw jugs of pink cleaner, bleach, spray cleaner with bleach, and Pine-Sol disinfectant. In the apartment being used for storage, one room contained twenty cases of toilet tissue and nine cases of nitrile gloves. The CIC found that Hope Village possesses an adequate supply of hygiene and cleaning products for staff and residents. . . . Hope Village staff indicated that

The Department of Corrections found that Hope Village is in compliance with adequate hygiene and cleaning products for staff and residents.

“BOP policy requires residents to clean their apartments and common areas daily, a policy that has been in effect for years. Since the national pandemic was declared, residents continue to clean their apartments and common areas daily. . . . . Hope Village provides residents with cleaning protects – Monogram bleach solution and window cleaner, cleanser, Pinesol that we mix and distribute in spray bottles, wash cloths, and gloves upon request, with refills stored in the CQ’s office. Alcoholbased cleaning products are not considered contraband at Hope Village. . . . Brooms, dustpans and vacuum cleaners are available from the CQ’s office, but residents must return them after each use. Each apartment has a trash canister with an enclosed plastic bag for easy disposal of refuse, and refill plastic bags are also available from the CQ’s office. . . . During each of the three work shifts at Hope Village, staff cleans high contact areas, including rails, doorknobs, light switches, phones, employee hand time clocks, chairs and desks in meeting rooms, dining room tables and chairs, and vending machines. We also require vendors to clean the vending machines after each re-stock. . . . Hope Village has ample cleaning supplies in stock, and we still have orders coming in weekly.”

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Plaintiffs’ Allegations

Corrections Information Council (3/27/20)

D.C. Department of Corrections (3/27/20)

supplies are not permitted because they are considered contraband. . . . Hallways also pose risks of contagion: prisoners share the hallways, and everyone, including quarantined individuals, use the hallway to access services.”

residents are still required to clean their apartments each morning, and cleaning supplies including disinfectant, are available in each building for the residents to use at any time.”

J. Varone Declaration (4/6/2020)

Complaint ¶¶ 59-65: “When Hope Village suspects someone may have contracted COVID-19, Hope Village places that person in isolation by assigning the

“As of our visit, no staff had been tested for Covid-19, and there were no concerns about staff health. Three residents had been tested for Covid-19 -

“There is one BOP resident currently assigned to an apartment to himself who was suspected of having

“We have had three residents exhibit what appeared to have been COVID-19 symptoms over the past four (4) weeks. We called 9-1-1 for emergency medical assistance for each resident who was taken to hospital for treatment, including COVID-19 test. One resident tested negative for the virus, and the discharge papers for all three recommended quarantine. . . . Nevertheless, upon release from the hospital, we quarantined each resident in an

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Plaintiffs’ Allegations

Corrections Information Council (3/27/20)

D.C. Department of Corrections (3/27/20)

J. Varone Declaration (4/6/2020)

person to an apartment without roommates. . . . The quarantined person continues to share hallways with the rest of the residents living in the building. Staff bring food trays to quarantined residents. . . . One person who was recently released from isolation was told he cannot remain living in the apartment by himself. . . . Hope Village has not educated prisoners on ways to minimize community spread of COVID-19. . . . Hope Village does

with two tests coming up negative, and one still awaiting results. Hope Village staff told the CIC that all staff members are trained in CPR.”

COVID-19 due to flu-like symptoms; however . . . he was tested and does not have COVID-19; but as a precaution, he has been separated. No other residents who have complained of flulike symptoms.

Residents and staff have been provided information on COVID-19 via a Resident Meeting and staff meeting. Precautions, symptoms and social distancing were discussed. Additionally

apartment by himself for 14 days. Each resident was advised to remain quarantined in the apartment, and staff took food trays to each resident for each meal, over the course of the 14 days. We don’t have 24-hour surveillance of these residents within apartments, and as adults sometimes they feel they can do as they please, like Mr. Pleasant who admitted in his declaration that he went into the hallways several times while under quarantine, until staff stopped him. . . . Upon release from quarantine, the resident returns to his assigned apartment so that the reserved apartment can be available to quarantine other residents who may exhibit COVID-19 symptoms in the future. . . . Residents are required to report to staff if they or any other resident is feeling sick, and this includes exhibiting any COVID-19 symptoms. Due to HIPPA rules Hope Village staff cannot assuage residents’ fears by disclosing another resident’s medical information. . . . Hope Village's contracts do not include provision of onsite medical staff. Instead residents receive non-emergency medical, dental and mental health services in the community through contracts BOP and DC have with NAPH Care and Unity Healthcare, respectively. For medical emergencies staff always call 91-1, and we will continue to do so. . . . Beginning in February, 2020 we initially posted signs conspicuously in all buildings at Hope Village advising residents and staff

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Plaintiffs’ Allegations
not have on-site medical staff. . . . Hope Village has not informed the population of any protocol for isolating symptomatic prisoners.”

Corrections Information Council (3/27/20)

D.C. Department of Corrections (3/27/20)

J. Varone Declaration (4/6/2020)

residents have access to the media via televisions in the rooms.”

about the efficacy of washing hands frequently with soap and water. In March 2020, based on CDC guidelines we posted signs advising residents and staff about COVID-19 signs and symptoms and how to prevent the spread of germs. On March 30, 2020 we posted additional signs in all buildings advising residents and staff on COVID-19 signs and symptoms and how to prevent the spread of germs. Many residents at Hope Village also have televisions in their apartments, and since they spend most of their time there these days watching TV, they are certain to hear medical personnel and politicians cautioning the public about the spread of the virus and how to avoid transmission. . . . On March 29, 2020 I circulated a memorandum to all Hope Village staff about implementation of daily announcements, in the early morning and late afternoon, to remind both staff and residents about COVID-19 signs and symptoms and how to prevent the spread of germs (one in each building) to get new supplies.”

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Plaintiffs’ complaint is highly repetitive, but as the chart above shows their core claims – that Hope Village has not taken adequate care against the COVID-19 virus – are based on incorrect allegations. Those incorrect claims are the foundation on which plaintiffs’ claims of negligence rest, and they will fail on the merits.
B. Plaintiffs Have Not Shown Likelihood of Irreparable Harm Plaintiffs have also not shown that they are likely to suffer irreparable harm in the absence of immediate injunctive relief. Plaintiffs here must show that “irreparable injury is likely in the absence of an injunction. Winter, 555 U.S. at 375 (citing Los Angeles v. Lyons, 461 U.S. 95, 103 (1983); Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 441 (1974); O'Shea v. Littleton,414 U.S. 488, 502 (1974); 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948.1, p. 139 (2d ed.1995) (applicant must demonstrate that in the absence of a preliminary injunction, “the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered”); id., at 154 – 155, 94 S.Ct. 669 (“[A] preliminary injunction will not be issued simply to prevent the possibility of some remote future injury”)). Issuing a preliminary injunction based only on a possibility of irreparable harm, said the Supreme Court, “is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 376 (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). Given the extensive precautions taken by Hope Village described above – precautions that plaintiffs have in many instances conceded, and precautions which were confirmed by the very agencies charged with overseeing Hope Village – plaintiffs have not shown that they are
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Case 1:20-cv-00890-RC Document 30 Filed 04/06/20 Page 44 of 48
likely to suffer irreparable harm. As with almost all Americans working and living in close quarters and interacting with others – such as families, soldiers and shop clerks – plaintiffs face a possibility of infection from COVID-19. Nothing in plaintiffs’ complaint shows that they are more or less likely than millions of others in similar circumstances around the country (and indeed around the world) to fall ill with the COVID-19 virus.
C. Plaintiffs Have Not Shown That the Balance of Equities Tips Toward Them, Considering the Public Interest
Plaintiffs’ memorandum in support of their application for injunctive relief is striking, because in stark contrast to the Supreme Court in Winter – which considered, when assessing injunctive relief against a public function, both the equities and public interest together, see Winter, 555 U.S. at 32-33 -- the plaintiffs consider only their own equities against a broad international pandemic. They do not consider, for example, the disruption that the proposed injunction would have on the operations of Hope Village and its customer agencies at this critical time, or the dangers to the community of releasing hundreds of offenders without careful assessments of risk.
Indeed, the plaintiffs’ lawsuit is worsening the breakdown of structured systems under COVID-19. As was shown above, the intense public pressure being placed on the Bureau of Prisons to release prisoners to home confinement is causing the traditional measured assessments of risk to break down. The relief that plaintiffs seek here – an immediate order from the Court that men be released into the community on home confinement – would crush an assessment system that needs to be restored, not destroyed, to protect the health and safety of the community. Were the Court inserted into that process – were the Court to become the arbiter of home confinement, as the plaintiffs suggest – that ongoing process of shifting men into the
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community, already accelerated by the Justice Department after the plaintiffs filed their complaint, would be slowed as plaintiffs added further layers of review, coordination and communication. An injunction, in other words, would be neither equitable nor in the public interest. III. CONCLUSION
For the reasons set forth above, defendant Hope Village respectfully requests that plaintiffs’ application for a temporary restraining order be denied,20 and that Hope Village be awarded its fees and costs in defending this action.
Respectfully submitted,
Kristen E. Ittig Christopher R. Yukins Michael E. Samuels ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001-3743 Tel: (202) 942-5789 Kristen.Ittig@arnoldporter.com Counsel for Hope Village, Inc.
20 Where, as here, injunctive relief is sought to address an allegedly threatened tort, one measure of appropriate relief is the availability of other remedies. See Women Prisoners of D.C. Dep't of Corr. v. District of Columbia, 899 F. Supp. 659, 666 (D.D.C. 1995). As discussed above, Hope Village residents are being dispersed to home confinement on a regular, ongoing basis, pursuant to Justice Department policy and direction. An alternative remedy, therefore, short of injunction, would be stay this action for a reasonable period, to allow that transfer process to proceed, subject to the Court’s regular review.
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Co-counsel for Hope Village, Inc.
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Case 1:20-cv-00890-RC Document 30 Filed 04/06/20 Page 47 of 48 CONFIRMATION OF SERVICE
In accordance with Federal Rule of Civil Procedure (FRCP) 5(b) and Local Civil Rule 5.4, this document was electronically submitted to the Court’s Case Management/Electronic Case Filing (CM/ECF) System. Under the referenced rules, electronically filing a document operates to effect service of the document on all counsel.
DISCLOSURE STATEMENT In accordance with FRCP 7.1, this is to confirm that Hope Village, Inc. has no parent corporation, nor is there any publicly held corporation holding 10% or more of its stock.
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Index of Exhibits
Exhibit A: Declaration of Jeffrey Varone Exhibit B: Bureau of Prisons (BOP) Residential Reentry Center (RRC) COVID-19 Home Confinement Memorandum (Apr. 3, 2020) Exhibit C: Department of Corrections Report (Mar. 27, 2020)
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Case 1:20-cv-00890-RC Document 30-2 Filed 04/06/20 Page 1 of 4 U. S. Department of Justice Federal Bureau of Prisons Reentry Services Division
Washington, D.C 20534
April 3, 2020

TO:

ALL RRC CONTRACT PROVIDERS

FROM:

JON GUSTIN, ADMINISTRATOR RESIDENTIAL REENTRY MANAGEMENT BRANCH

SUBJECT: Coronavirus (COVID-19) Precautions/Modified Operations for Residential Reentry Centers oversight of Home Confinement Residents.
This memorandum is to provide further guidance to Residential Reentry Centers (RRC) as it relates to Home Confinement. The Bureau of Prison’s (BOP) goal is to utilize the home confinement (HC) program to the fullest extent practicable as outlined in the Attorney General’s memorandum dated March 26, 2020 while maintaining accountability and protecting staff, offenders, and the public. Inmates must be reviewed utilizing the Elderly Offender Home Confinement program criteria and the discretionary factors listed in the AG’s memo.
Referrals must be made based on appropriateness for home confinement. Consideration should be given to whether the offender has a demonstrated a verifiable reentry plan that will prevent recidivism and maximize public safety.
The following modified procedures for the monitoring of offenders placed on Home Confinement for the duration of the pandemic are approved:
1. Referrals for Home Confinement placement should be processed within 3 days of receipt. Contractors should verify the release address prior to offenders arrival by using internet maps, photo applications, or similar software, or by driving past the address to determine that a residence is at the physical address prior to acceptance of the offender.

Case 1:20-cv-00890-RC Document 30-2 Filed 04/06/20 Page 2 of 4
2. All offenders referred for Home Confinement Placement must be monitored by GPS monitoring equipment which allows the contractor to monitor the whereabouts of the offender at all times. Deviations from this requirement must be discussed with Administrator, RRMB.
3. While the preference is for an offender to report directly to the Home Confinement Location; Contractors have the option of having offenders report to the RRC location. Protocols below ensuring HC offenders are not in contact with offenders of the RRC should be maintained. Offenders should be initially processed and allowed to go to home confinement same day of arrival to the RRC when at all possible.
4. If an offender reports directly to the HC location, contract staff will make contact with the offender within 24 hours of arrival adhering to the following conditions: a) Field monitor staff will be provided with appropriate Personal Protective Equipment (i.e. gloves, mask, hand sanitizer). b) Personal contacts should be very limited and only for location monitoring equipment installations, tamper inspections, or removals. c) Before meeting with an offender, ask if he/she is experiencing flu-like symptoms. If yes, the contract staff may consider meeting the offender outside the residence, standing at a safe distance while wearing protective gear. d) If physical contact is required, contract staff should attempt to only contact the offender’s ankle and monitoring equipment, never touching the offender’s hands. e) If the offender is displaying COVID symptoms, upon removal all monitoring equipment should be immediately packaged in a watertight zip loc bag and placed in a second securely enclosed watertight zip lock bag. Label the second bag as BIOHAZARD and include the unit’s serial number. f) Prior to entering a residence, the contractor should call the offender while parked outside and ask if anyone in the residence is sick or experience flu-like symptoms. If yes, the contractor should not go into the house. The contractor may consider meeting the offender outside, standing at a safe distance. If the contractor is not comfortable with any form of direct contact, the reason should be documented in the offender’s case notes. For an example, “Contractor arrived at residence and verified offender was home; however, did not enter the residence due to the offender

Case 1:20-cv-00890-RC Document 30-2 Filed 04/06/20 Page 3 of 4

displaying COVID19 symptoms.”

g) Contractors are encouraged to complete

equipment

installations,

adjustments,

inspections, or removals by directing the

offender to kneel on a chair facing away from

the contractor. This method will not only

increase a contractor’s physical safety but

will also reduce contact with the offender’s

hands and face.

h) Virtual supervision methods (Cell phone video

where offender is made to show the contractor

the equipment on their body) may allow for

immediate tamper investigations, but may not

replace in-person, physical inspections of the

equipment. These inspections should still

occur at the earliest and safest opportunity.

It is understood that the inspection may not

occur the same day/next day, however, should

be conducted in a timely fashion.

i) Educate offenders of the risks associated with

COVID-19 and encourage the offenders to remain

at their residence, reminding them to follow

any locally imposed restrictions.

j) Contractors are encouraged to verify the

current employment status/potential changes in

work schedule for those they supervise. Many

businesses are closed, working limited hours,

or employees are being permitted to telework,

thus leave granted for employment purposes may

need to be modified or removed.

k) As community contacts will be reduced,

offenders may take advantage of this

opportunity.

Contractors should carefully

review GPS mapping and compressed summary

reports looking for any signs of equipment

relocation (receiver/beacon motion and

beacon/receiver power fail).

l) Expectation is that contractors will

physically verify the location of the

offenders by visual confirmation at a minimum

of monthly.

The above guidance is provided to allow for the continued use of the home confinement program while maintaining accountability and ensuring safety for both the staff, offender, and the public. As a reminder, information regarding the Bureau’s response to COVID19 may be found on the Bureau’s public website, www.bop.gov. The Bureau appreciates your hard work and continued partnership and will continue to update this guidance as the situation continues to develop.

Case 1:20-cv-00890-RC Document 30-2 Filed 04/06/20 Page 4 of 4
The Bureau understands individual circumstances may arise outside of the general guidance and recommendations. Questions should be directed to your designated Residential Reentry Manager, Sector Administrator, or Dana DiGiacomo, Assistant Administrator, RRMB, at ddigiacomo@bop.gov or 202-616-5880.

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 Case 1:20-cv-00890-RC Document 35 Filed 04/07/20 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WILLIAMS, et al.

:

:

Plaintiffs,

:

:

v.

:

:

FEDERAL BUREAU OF PRISONS, et al., :

:

Defendants.

:

Civil Action No.: 20-890 (RC) Re Document No.: 3

ORDER

DENYING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER; DIRECTING THE PARTIES TO SUBMIT DAILY UPDATES
On April 2, 2020, Plaintiffs moved for a temporary restraining order that would, inter

alia, require the “release [of] enough residents” from Hope Village, a halfway house that

contracts with both the District of Columbia and the Bureau of Prisons, “such that the remaining

residents can be housed safely and in compliance with CDC guidance at Hope Village.” Pls.’

Mot. TRO, ECF No. 3. On April 7, 2020, the Court held a telephone hearing concerning this

motion. For the reasons stated on the record during the telephone hearing, Plaintiffs’ motion for

a temporary restraining order (ECF No. 3) is DENIED. The Court requests further daily updates

from each of the Defendants, as set forth below, and will hold a separate hearing concerning

Plaintiffs’ motion for a preliminary injunction, ECF No. 4. It is hereby:

ORDERED that the Court takes under advisement Plaintiffs’ motion for a preliminary

injunction and grants the parties leave to file any supplemental briefings by Friday, April 10,

2020; and it is

FURTHER ORDERED that Defendants shall submit under seal the following reports

on the docket each day:

Case 1:20-cv-00890-RC Document 35 Filed 04/07/20 Page 2 of 2

(1) Defendant Hope Village shall file a daily census of the overall population at the facility; the number of individuals who have been tested for COVID-19; the number of pending results, if any; and the number of confirmed positive or negative results; and
(2) Defendant Federal Bureau of Prisons shall file a daily notice with the number of home confinement requests for individuals at Hope Village that are pending as well as the number of said requests that it has granted; and it is
FURTHER ORDERED that Defendant Hope Village shall, by no later than Monday, April 13, 2020, submit a roster setting forth the following information for each Hope Village resident: (1) age; (2) any preexisting medical conditions; (3) time remaining on the sentence; (4) underlying offense for which the individual is held; (5) whether the individual has a home to which he might be released; (6) whether the individual is statutorily eligible for home confinement; and (7) any other information that might be helpful in considering the relevant issues; and it is
FURTHER ORDERED that the above-referenced daily notices and roster may be filed under seal, so long as the information is accessible to all parties, subject to a forthcoming protective order between the parties; and it is
FURTHER ORDERED that the parties shall appear for a telephone hearing on Plaintiffs’ motion for a preliminary injunction on Tuesday, April 14, 2020, at 11:00 AM. Instructions on how to access the call will be emailed to counsel.
SO ORDERED.

Dated: April 7, 2020

RUDOLPH CONTRERAS United States District Judge

2

 
 Case 1:20-cv-00890-RC Document 92 Filed 04/28/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THURMAN WILLIAMS, et al.,
Plaintiffs,
v.
FEDERAL BUREAU OF PRISONS, et al.,
Defendants.

Civil No. 1:20-cv-890-RC

NOTICE OF DISMISSAL OF ACTION WITHOUT PREJUDICE Plaintiffs filed this action on April 2, 2020 asserting claims for violation of the Eighth Amendment and negligence on behalf of residents of Hope Village halfway house in the District of Columbia. Plaintiffs asserted that the conditions at Hope Village placed the more than 200 residents at unnecessary risk of contracting COVID-19 and prevented the residents from engaging in recommended protective behaviors, including adequate social distancing. Due to the actions of the federal Bureau of Prisons, only three federal prisoners remain at Hope Village as of this date, and the total population at Hope Village has been reduce to less than 15. Hope Village also has announced that it will soon close. The declaratory and injunctive relief sought by the Plaintiffs has therefore become moot. In light of the foregoing, pursuant to FEDERAL RULE OF CIVIL PROCEDURE 41(a)(1)(A)(i), Plaintiffs Thurman Williams et al., by their counsel, hereby dismiss this action without prejudice.

Dated: April 28, 2020

Respectfully submitted,
/s/ Kevin Metz Kevin Metz (D.C. Bar # 494087)
1

Case 1:20-cv-00890-RC Document 92 Filed 04/28/20 Page 2 of 2
Drew Wisniewski (D.C. Bar # 1016351) (admission pending) Clayton LaForge (D.C. Bar # 1033938) LATHAM & WATKINS LLP 555 Eleventh Street NW Washington, DC 20004 Tel: (202) 637-2200 kevin.metz@lw.com drew.wisniewski@lw.com clayton.laforge@lw.com
Jonathan Smith (D.C. Bar # 396578) Emily Gunston (D.C. Bar # 1032056) Lyndsay A. Niles (D.C. Bar # 1003427) WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS 11 Dupont Circle, NW, Suite 400 Washington, DC 20036
Scott Michelman (D.C. Bar # 1006945) Arthur B. Spitzer (D.C. Bar # 235960) Michael Perloff (D.C. Bar # 1601047) ACLU FOUNDATION OF THE DISTRICT OF COLUMBIA 915 Fifteenth Street NW, Second Floor Washington, DC 20005 Tel: (202) 457-0800 artspitzer@gmail.com smichelman@acludc.org mperloff@acludc.org
Attorneys for Plaintiffs
2

 
 Case 1:20-cv-00890-RC Document 36 Filed 04/07/20 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THURMAN WILLIAMS and

RONALD IAN BOATRIGHT

each individually and on behalf of all others similarly situated,
PLAINTIFFS,

Civil No. __ 1:20-cv-00890-RC____

v. FEDERAL BUREAU OF PRISONS

MICHAEL CARVAJAL, in his official capacity as Director, Federal Bureau of Prisons

DISTRICT OF COLUMBIA

QUINCY BOOTH, in his official capacity as Director, D.C. Department of Corrections

HOPE VILLAGE, INC.,

DEFENDANTS.

REPLY IN SUPPORT OF APPLICATION FOR TEMPORARY RESTRAINING ORDER

The Court now has four extensive memoranda of law concerning a timely legal question and novel facts surrounding a global pandemic. Having reviewed the filings submitted less than a day before a hearing in this matter, and in an effort to provide the Court with Plaintiffs’ understanding of the contentions that Defendants assert as fact, Plaintiffs submit this short reply brief in advance of today’s hearing.
In summary, Defendants assure the Court they have the situation under control. They do not. Several undisputed facts belie this contention:

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• The Center for Disease Control and other public health experts have advised that the best method for limiting the transmission of the virus is to avoid gatherings and practice “social distancing.” Experts recommend a minimum of six feet between people, limited contact, and meticulous personal hygiene. See, e.g. Dkt. No. 5-1 at ¶ 9-11; BOP Opp. at 7-8.1 To combat the disease, the Bureau of Prisons (BOP) and Department of Corrections (DOC) recommend mandatory quarantines.
• Contrary to this guidance, prisoners held at Hope Village are unable to engage in effective social distancing. Prisoners share two-bedroom apartments. Each bedroom holds up to four prisoners, who sleep in bunk beds roughly three feet from one another. Up to eight men share a single bathroom. See Dkt. No. 30-1 at ¶ 34; Dkt. No. 5-2 at ¶ 4-5; Dkt. No. 5-3 at ¶ 5.
• Prisoners eat together in dining areas with 20 to 25 other people. See Dkt. No. 5-1 ¶ 31; Dkt. No. 30-1 at ¶ 32; Dkt. No. 29-4 at ¶ 3 Five men sit around round tables that are approximately five feet in diameter. See Dkt. No. 29-4 at 3. The dining area has no sink in which men can wash their hands prior to eating. See Dkt. No. 30-1 at ¶ 19; Dkt. No. 5-4 at ¶ 14. Hand sanitizer is not available to prisoners. Dkt. No. 30-1 at ¶ 14.
• Though BOP “instructed facilities to implement regular daily temperature testing and screening for COVID-19 symptoms for all residents and staff,” BOP Opp. at 10, 15; “Hope Village is unable to conduct temperature screening at this time” because it does not currently have no-touch thermometers. Hope Village Opp. at 35; Dkt. No. 30-1 at ¶ 6. This includes temperature screenings of staff who travel in and out of the facility each day. Id. ¶ 4.
• There is no professional cleaning staff at Hope Village. All apartments and common spaces are cleaned by prisoners. Dkt. No. 30-1 at ¶ 23.
• There is no medical staff on site. Id. at ¶ 10.
Thus, the core allegations concerning conditions at Hope Village are now admitted by the
Chief Executive Officer of Hope Village, Mr. Varone: Crowded, communal living with limited
protection from coronavirus is the rule at Hope Village. Only an immediate and dramatic reduction
in the population size can remedy this situation. A substantially smaller population will alleviate
1 Three memoranda of law were filed in opposition to the Complaint and motions for a temporary restraining order and for a preliminary injunction. The Department of Corrections memorandum (“DOC Opp.”) is available at Docket No. 28. The Bureau of Prisons memorandum (“BOP Opp.”) is available at Docket No. 29. The memorandum of Hope Village (“Hope Village Opp.”) is available at Docket No. 30.
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crowding, permitting Hope Village to assign one resident to one apartment for those who remain, and dining in small groups or individual apartments. Importantly, none of the Defendants appears to dispute the Court’s inherent authority to order the reduction in population now.
The Defendants’ responses are legalistic and misrepresent the relief sought by Plaintiffs. First, they point fingers at each other and cite contract clauses, memoranda circulated by the BOP, and regulations. But this is not the time for “bi-weekly” reviews of home detention (Dkt. No. 291 at ¶ 31), annual visits (Dkt. No. 29-1 at ¶ 32), adherence to minimum contractual requirements (Dkt. No. 30-1 at ¶¶10, 15, 34), 20th-century landline requirements (Id. at ¶ 35), or squabbles among the Defendants about who is responsible. See, e.g. Id. at ¶¶ 42, 45.
Defendant BOP also misrepresents the relief Plaintiffs are seeking. Plaintiffs are not in the first instance seeking the release of all residents of Hope Village, which Defendant BOP suggests would make many people homeless and deprive them of necessary services. See BOP Opp. at 2627. This is a red herring. Plaintiffs are seeking an order requiring Defendants to “release enough people such that the remaining residents can be housed safely and in compliance with CDC guidance at Hope Village.” Dkt. No 12 at 3. This can be done by releasing those who have homes to go to, and reconfiguring the living situation at Hope Village for those who do not, so that appropriate anti-pandemic protocols can be followed.
In a press release Monday night, the BOP claimed to be “aggressively” screening inmates in correctional institutions for home confinement. See Ex. 1. It makes even more sense to do so here, where most prisoners are already eligible for home confinement. Individuals held at Hope Village came and went freely from the facility for work and other reasons prior to March 20, and most are due to be released from confinement imminently as their sentences end. Those with homes to go to should be sent there. In fact, Attorney General Barr’s guidance of March 26, 2020
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directs BOP to prioritize the use of home confinement and mandates that “priority [be] given to inmates residing in low and minimum security facilities.” Ex. 2. Here, BOP admits that “124 of the 196” BOP prisoners at Hope Village “are statutory eligible for home confinement.” Dkt. No. 29-1 at ¶ 29 (emphasis added). Yet Defendants are keeping individuals at Hope Village without proper screening or social distancing measures in place, posing a severe and unnecessary risk to their health, and safety.
The relief sought by the Plaintiffs will not only protect prisoners, but is necessary to protect staff and to avoid an outbreak that will overwhelm the District’s health care system. With no medical facilities on site, infected prisoners will be treated at local hospitals. As of April 5, 2020, the District has only 69 intensive care beds and 255 available ventilators across the entire city.2 The rapid spread of the virus at Hope Village will dramatically tax an already strained health care network.
Finally, Defendants wrongly urge the Court to hold Plaintiffs to a stricter standard for a “mandatory injunction,” but the D.C. Circuit has “has rejected any distinction between a mandatory and prohibitory injunction.” League of Women Voters v. Newby, 838 F.3d 1, 7 (D.C. Cir. 2016). Nevertheless, Plaintiffs have met their burden as to each factor, and the Court should enter the requested Order.
A. The First Element. Success on the Merits is Likely Because Defendants Overstate the Findings of the CIC Report
All Defendants rely heavily on a brief Corrections Information Council (CIC) report in an attempt to definitively state that conditions at Hope Village are adequate to respond to and mitigate the COVID-19 threat. Hope Village Opp. at 24-25 (stating that CIC’s “thorough review” of Hope
2 https://coronavirus.dc.gov/page/hospital-status-data 4

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Village found that “Hope Village had fully met each point of concern in its preparations for the COVID-19 pandemic”); BOP Opp. at 17 (“CIC…reported no sanitary or safety concerns. The Bureau sees no reason to doubt the accuracy of the CIC’s report”); DOC Opp. at 19 (stating that the CIC report “demonstrates that the District has met its obligation to ensure that Hope Village” is properly addressing safety concerns.). This reliance is misguided and overstated. Defendants mischaracterize both the scope and findings of the CIC investigation.
The CIC report is outdated, limited in its scope, and largely confirms the core allegations of Plaintiffs’ Complaint. CIC’s investigative findings are based on a visit that took place on March 26, 2020 – over ten days ago. Cases of COVID-19 have increased nearly fivefold in Washington, D.C., over a dozen prisoners at the D.C. Jail have been diagnosed with the virus, and federal, state, and local facilities across the country have seen widespread outbreaks of COVID-19. See Dkt. No. 5 at 5-6. In addition, Hope Village did not allow its residents to speak with investigators about conditions in the facility. See Dkt. No. 29-4 at 1 (stating that CIC staff “w[ere] not permitted to conduct individual interviews with current residents”). Instead, CIC based its report on a conversation with Hope Village staff and a BOP Residential Re-Entry Manager (via telephone), and a walk through of the facility’s dining, food, and supply storage areas. Id. The report includes no indication that CIC investigators were permitted to enter living quarters, bedrooms, bathrooms, or other common spaces in the facility. Simply put, the CIC Report did not take into account the realities of the crowded and unhygienic conditions in the facility.
Even with these limitations, nothing included in the CIC report negates the undisputed facts stated above. To the contrary, the CIC report either fails to address (in the case of the living facilities) or confirms (in the case of the dining facilities) Plaintiffs’ allegations that Hope Village has failed to create an environment for social distancing. See id. at 3 (finding that “approximately
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20-25 people are eating in each [of the two] space[s] at a given time. This would mean five people to each of five or six round tables in each space. Each table is approximately 5 feet in diameter.”). The report does not address the fact that prisoners currently sleep in rooms with up to three others, in bunkbeds approximately three-feet apart, because CIC investigators did not enter living facilities. Dkt. No. 30-1 at ¶ 34; Dkt. No. 5-2 at ¶ 4; Dkt. No. 5-3 at ¶ 5. It does not refute Plaintiffs’ claims regarding conditions in the dining hall, where residents have no opportunity to wash their hands prior to eating, after they walk down communal hallways and touch communal surfaces. Dkt. No. 30-1 at ¶ 19; Dkt. No. 5-4 at ¶ 14. It does not address the fact that staff is traveling in and out of the facility without proper screening procedures in place and that new residents enter Hope Village without any temperature screening or quarantine. The report provides no information on the frequency of cleanings, or the fact that residents are required to clean all common and personal spaces themselves. Hope Village Opp. at 35; Dkt. No. 30-1 at ¶ 6. Simply stated, the CIC report by no means vindicates Defendants.
Finally, Defendant BOP relies on the CIC report to claim that Hope Village is “screening all incoming inmates (including temperature and symptom checks)” and therefore operating consistent with BOP guidance that “facilities should implement regular daily temperature testing.” BOP Opp. at 10.3 This is wrong, and it underscores BOP’s total indifference to the facts and conditions at Hope Village. According to Hope Village, “Hope Village is unable to conduct temperature screening at this time” because it does not currently have no-touch thermometers. Hope Village Opp. at 35; Dkt. No. 30-1 at ¶ 6.
3 BOP claims that the CIC report concluded that Hope Village was conducting temperature and symptom checks of incoming residents. The report states that “[i]individuals being released from BOP institutions are being screened for Covid-19 per BOP’s current policy on transfers (including temperature and symptoms check).” BOP Opp. at 10. The report did not state that Hope Village was itself conducting such screenings on those entering the facility.
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B. The Second Element. Even the Attorney General Recognizes Irreparable Harm That Outweighs BOP’s Objections
BOP argues that Plaintiffs are not entitled to home confinement because “inmates must have a home telephone so that their presence in home confinement may be confirmed by speaking to them on the telephone,” and that Plaintiffs “do not yet have home telephone lines installed at the homes where they would be confined.” BOP Opp. at 16. First, Mr. Boatright has a landline. Ex. 3; Boatright Decl. ¶ 3. Counsel for Mr. Boatright will provide the telephone number to the Court during the hearing to avoid disclosing a private landline in a public filing. Second, contending that a landline is a prerequisite to implementing home confinement policies contradicts the very exception created by the Attorney General of the United States just this past Friday, when he strenuously instructed the BOP to implement a home confinement policy for residents of halfway houses and stated: “I also recognize that BOP has limited resources to monitor inmates on home confinement and that the U.S. Probation Office is unable to monitor large numbers of inmates in the community. I therefore authorize BOP to transfer inmates to home confinement even if electronic monitoring is not available, so long as BOP determines in every such instance that doing so is appropriate and consistent with our obligation to protect public safety.” Ex. 5 at 2 (emphasis added). Similarly, BOP claims that Mr. Williams is not eligible for home release because he “has not provided a release plan.” Dkt. No. 29-1 at ¶ 38. This is incorrect, as Mr. Williams has a home to go to once he is released. See Dkt. 5-2 at ¶ 3.
In addition to incorrectly representing that they cannot release Messrs. Boatright, Williams, and Pleasant, BOP contends that Hope Village has adequately prepared for protecting residents from COVID-19. BOP Opp. at 16-17 (“Hope Village has made it more possible for residents to practice social distancing during meal times by opening up a second dining room in a vacant apartment.”). This is, quite simply, not the case. The second dining area the BOP references has
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not improved the ability to social distance. Ex. 3; Boatright Decl. ¶ 5. The “dining area” is half of an apartment living room with five or six tables at which four people may sit in close proximity. Ex. 3; Boatright Decl. ¶ 5. These tables are about 1.5 feet apart and are closer together than their typical dining area. Ex. 3; Boatright Decl. ¶ 5. Even in spreading out the dining schedule, there are 40 or 50 residents in this space at any given time because they have to line up to wait their turn in the dining area and the line becomes backed up because people take their time to eat. Ex. 3; Boatright Decl. ¶ 5 . Furthermore, residents are still responsible for getting their own hygiene and cleaning supplies. Ex. 3; Boatright Decl. ¶ 7. Mr. Boatright has been screened neither leaving the BOP nor upon admission to Hope Village. Ex. 3; Boatright Decl. ¶ 9. BOP faces a daunting task; however, it has guidance from the Attorney General, which it is failing to follow.
The logic and sense of the relief sought by the plaintiffs has been recognized by courts and public officials across the Nation. Scores of courts have taken action, including: in South Carolina all prisoners held in jail on bond in a non-capital case were ordered to be released, unless there exists an “unreasonable danger” or “extreme flight risk.4 in New Jersey all prisoners serving county jail sentences were ordered released;5 and in Massachusetts the Supreme Court ruled that pre-trial detainees not charged with certain violent offenses, as well as incarcerated individuals held on technical probation and parole violations, are entitled to a rebuttable presumption of release.6
4 In the Matter of the Request to Commute or Suspend County Jail Sentences, No. 082430 (N.J. Mar. 22, 2020), https://www.njcourts.gov/notices/2020/n200323a.pdf?c=9cs. The order provided a mechanism for prosecutors, within 24 to 48 hours, object to the release of specific prisoners who “would pose a significant risk to the safety of the inmate or the public,” with such objections to be considered by judges or special masters appointed by the Supreme Court. 5 Memorandum from Donald W. Beatty, Chief Justice of South Carolina Supreme Court, to Magistrates, Municipal Judges, and Summary Court Staff (Mar. 16, 2020), https://www.sccourts.org/whatsnew/displayWhatsNew.cfm?indexId=2461. 6 See Deborah Becker, Mass. High Court Rules Some Prisoners Will Be Eligible For Release Due To COVID-19, WBUR News (Apr. 3, 2020), https://www.wbur.org/news/2020/04/03/sjc-prisonersemergency-petition-ruling.
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C. The Third Element. The Relief Requested Outweighs Any Harm to Defendants.
BOP and Hope Village claim that Plaintiffs’ request for relief is to release all Hope Village residents, including those who do not have a home, further putting them at risk for contracting COVID-19. See, e.g., BOP Opp. at 20. Plaintiffs misconstrue the relief. Plaintiffs request as seeking immediate release of all residents of Hope Village. Rather, Plaintiffs requested that Defendants release Plaintiffs and any other residents who have homes to go to in order to reduce the overall population of Hope Village, while providing strenuous yet necessary cleaning and hygiene strictures inside the facility for those who remain. Dkt. No. 9-1 at ¶ 103.
While maintaining these conditions should include releasing residents who are eligible for home confinement to reduce the population at risk of contracting COVID-19 in Hope Village, housing fewer people in the facility creates a better opportunity for Defendants to properly implement social distancing practices at Hope Village. Complying with guidelines also includes providing sanitary and cleaning products, ensuring food safety, and conducting daily COVID-19 screenings for staff and any persons entering the facility. If Defendants are unable to improve the conditions at Hope Village, then Defendants need to make other arrangements for all residents to ensure their safety.
Instead, Defendants brazenly claim that Plaintiffs have an increased risk of contracting COVID-19 if they are with their family, rather than living in a facility that houses 70 people in one building, sleeps six men to a bedroom where their beds are three feet apart, and feeds thirty men at a time in a cramped cafeteria. Not so. See, e.g., Giftos Decl. ¶ 15 (stating that “[c]orrectional settings increase the risk of contracting an infectious disease like COVID-19…”). Plaintiffs are requesting that Defendants follow their own guidelines and guidance and release those residents who are able and eligible to enter home confinement. Plaintiffs simply seek the Court to compel Defendants to act. To date, they have not Accordingly, Plaintiffs’ proposed order suggests the appointment of a monitor.
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D. The Fourth Element. The Public Interest Favors a Temporary Restraining Order
Defendants state that the balance of equities and public interest do not support equitable relief because their release would create more risk for the general public. BOP Opp. at 24-25. By releasing Plaintiffs to home confinement, where they will not be interacting with the general public, this Court would be allowing Plaintiffs to socially distance and practice the guidelines set by the CDC. Rather than create a breeding ground for a mass infection of COVID-19 in the population of approximately 200 residents of Hope Village residents, Plaintiffs may stay separated from others within the confines of their own homes. Furthermore, Plaintiffs do not seek a classwide release from confinement at Hope Village; rather, they seek home confinement for the maximum possible number determined by BOP, in accordance with the guidance issued by the Attorney General this past Friday. The remaining residents request living conditions that maximize avoidance of exposure to COVID-19, most objectively determined by a monitor.
The Court would not be creating new policy by granting Plaintiffs equitable relief; in fact, it would be aligning completely with executive and legislative guidance on the issue. Specifically, doing so would align with the Attorney General’s guidance to the BOP of this past Friday, April 3, 2020, regarding the dire nature of COVID-19 and the need to allow for home confinement, as well as the most updated press release from the District’s Congresswoman, Eleanor Holmes Norton, describing the need for home confinement. See Exs. 4 & 5. Importantly, Hope Village provides the Court with a citation and discussion of Congresswoman Holmes Norton’s press release from last week stating that conditions were acceptable at the halfway house. But the Congresswoman’s position change in such a short time—calling now for an investigation into Hope Village and home confinement—exemplifies the dire nature of the virus and the need to act with haste. On the question of what is and is not in the public interest, the Court has the benefit of both the executive branch and the voice of the citizenry for the District of Columbia in Congress calling for home confinement where possible, and preventative living conditions in the event residents are required to stay. Plaintiffs request this remedy as well—no more, no less—but seek
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the Court’s help with expediting the process in the face of an obstinate complement of Defendants and a global pandemic.
CONCLUSION
For the reasons discussed, Plaintiffs respectfully request that the Court grant their motion for a temporary restraining order.

Dated: April 7, 2020

Respectfully submitted, /s/ Kevin Metz Kevin Metz (D.C. Bar # 494087) Drew Wisniewski (D.C. Bar # 1016351) (admission pending) Clayton LaForge (D.C. Bar # 1033938) LATHAM & WATKINS LLP 555 Eleventh Street NW Washington, DC 20004 Tel: (202) 637-2200 kevin.metz@lw.com drew.wisniewski@lw.com clayton.laforge@lw.com
Jonathan Smith (D.C. Bar # 396578) Emily Gunston (D.C. Bar # 1032056) Lyndsay A. Niles (D.C. Bar # 1003427 WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS 11 Dupont Circle, NW, Suite 400 Washington, DC 20036
Scott Michelman (D.C. Bar No. 1006945) Arthur B. Spitzer (D.C. Bar No. 235960) Michael Perloff (D.C. Bar # 1601047) ACLU FOUNDATION OF THE DISTRICT OF COLUMBIA 915 Fifteenth Street NW, Second Floor
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Case 1:20-cv-00890-RC Document 36 Filed 04/07/20 Page 12 of 12 Washington, DC 20005 Tele: (202) 457-0800 artspitzer@gmail.com smichelman@acludc.org mperloff@acludc.org Attorneys for Plaintiffs
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 Case 1:20-cv-00890-RC Document 1 Filed 04/02/20 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THURMAN WILLIAMS 2844 Langston Place SE Washington, DC 20020
RONALD IAN BOATRIGHT 2844 Langston Place SE Washington, DC 20020
each individually and on behalf of all others similarly situated,
PLAINTIFFS,
v. FEDERAL BUREAU OF PRISONS 320 First Street, NW Washington, DC 20534
MICHAEL CARVAJAL, in his official capacity as Director, Federal Bureau of Prisons
DISTRICT OF COLUMBIA c/o Office of Attorney General 441 4th Street, NW Washington, DC 20001
QUINCY BOOTH, in his official capacity as Director, D.C. Department of Corrections
HOPE VILLAGE, INC., 2840 Langston Place SE Washington, DC 20020
DEFENDANTS.

Civil No. _1_:2_0_-_c_v_-8_9_0______

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND CLASS PETITION FOR WRITS OF HABEAS CORPUS
Plaintiffs Thurman Williams, and Ronald Ian Boatright, each individually and on behalf
of all others similarly situated, respectfully complain as follows against Defendants Federal
Bureau of Prisons (“BOP”), Michael Carvajal, Director of the BOP, District of Columbia,

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Quincy Booth, Director of the District of Columbia Department of Corrections, and Hope Village, Inc.
INTRODUCTION 1. This class action is being filed, in the midst of a massive global health emergency, on behalf of all persons incarcerated by the District of Columbia and the Federal Bureau of Prisons at the Hope Village halfway house in Washington, D.C. 2. Hope Village is the largest federal halfway house in the country, with approximately 300 beds. It is the only federally contracted halfway house for men in the District of Columbia. Hope Village houses mainly federal prisoners who are about to be released. During normal operations, prisoners come and go during the day for jobs and training, to look for work, to obtain medical care, to visit family, and for other necessities. 3. As of March 31, 2020, there were 163,539 cases and almost 3,000 deaths attributable to COVID-19 reported in the United States. That number grows daily. The District of Columbia has reported 495 cases of COVID-19 and at least 9 deaths, as of March 30, 2020. According to the World Health Organization, as of March 23, more than 332,900 people have been diagnosed with COVID-19 in 190 countries or territories around the world and 14,510 have died as a result. At least six prisoners have tested positive at the DC Jail. 4. The Center for Disease Control and Prevention (“CDC”) and other public health experts have advised that the best method to limit transmission of the virus is to avoid gatherings and practice “social distancing.”1 Health experts recommend a minimum of six feet between people, limited contact, and meticulous personal hygiene.
1 Center for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (March 23, 2020)
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5. It is the policy of the District of Columbia to require social distancing and to prohibit
people gathering in groups. The Mayor has issued a series of Executive Orders that carry the
force of law and include criminal penalties for those who do not follow these basic public health
practices.2 The Mayor’s orders relied, in part, on the following findings:
This Order is issued based on the increasing number of confirmed cases of COVID-19 within Washington, DC, and throughout the metropolitan Washington region. Scientific evidence and public health practices show that the most effective approach to slowing the community transmission of communicable diseases like COVID-19 is through limiting public activities and engaging in social distancing. … Medical and public health experts agree that COVID-19 is easily transmitted and it is essential that its spread be slowed to protect the ability of public and private health care providers to handle the expected influx of ill patients and safeguard public health and safety. …. Because of the risk of the rapid spread of the virus, and the need to protect all members of Washington, DC, and the region, especially residents most vulnerable to the virus, and local health care providers and emergency first responders, this Order requires the temporary closure of the on-site operation of all non-essential businesses and implements a prohibition on large gatherings.3
6. Contrary to District of Columbia policy and despite this guidance and the spreading
pandemic, Defendants have forced prisoners at Hope Village to sleep in close quarters and bunk
beds, about three feet apart. The prisoners eat together in crowded dining rooms and share
bathrooms.
7. The prisoners are also forced to clean the facilities themselves. Defendants do not
provide adequate basic cleaning services. Further, Defendants have failed to provide prisoners
with the most basic supplies to clean their living areas or maintain the rigorous personal hygiene
the CDC is urging.
2 https://mayor.dc.gov/release/mayor-bowser-issues-stay-home-order 3 https://coronavirus.dc.gov/release/mayor-bowser-orders-closure-non-essential-businesses
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8. Typically, prisoners at Hope Village are allowed to leave the facility during the day for a job or to visit family. But Defendants suspended this freedom and have refused to release prisoners to live with their families or in their homes during this unprecedented and immediate health emergency. 9. The conditions maintained by Defendants in Hope Village make it impossible for the prisoners and pre-trial detainees housed there to avoid congregating in groups or practice social distancing, maintain the required hygiene and limit the high risk of spread of the COVID-19 virus. 10. Furthermore, Defendants have failed to provide even the most basic medical care during this health emergency. Hope Village has failed to provide prompt medical attention and testing to those with COVID-19 symptoms. Hope Village also does not have an on-site medical staff. Prisoners at Hope Village who are ill have been forced in recent days to call 9-1-1 themselves for help. 11. Defendants cannot keep the prisoners safe from the COVID-19 pandemic while housing them in group bunk rooms and tight living quarters without adequate sanitation, and while providing little or no medical care. 12. Defendants’ continued inaction gravely jeopardizes the safety and lives of all Plaintiffs and approximately 300 other prisoners confined to Hope Village, as well as the staff and the public. 13. Many of the people at Hope Village have been designated for home confinement by the BOP and are typically eligible for release on home confinement within 6 months of their release date.
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14. Defendants have refused to exercise their discretion to provide early release and significantly reduce the population in the facility. Instead, Defendants have chosen to keep prisoners confined in tight quarters as the COVID-19 crisis spreads like wildfire. The continued incarceration of the Plaintiffs at Hope Village in conditions that contravene widely known health protocols is putting them, Hope Village staff, and the broader community at great risk for infection, illness, or death due to the COVID-19 pandemic. 15. The CDC guidelines are incorporated in the guidelines published on March 20, 2020, by the American Jail Association.4 These guidelines recommend reducing jail populations as soon as possible, including by releasing inmates when at all possible. The guidelines also state that any new prisoners should be screened for COVID-19, as should facility staff on a daily basis. 16. The American Jail Association guidelines also implore correctional facilities to “provide free and readily available soap, hand sanitizer, and cleaning/disinfectant supplies for living areas.” The guidelines state to replenish those supplies frequently and eliminate rules that label the products contraband. The guidelines suggest adding additional hand washing stations. 17. When discussing social distancing, the American Jail Association guidelines recommend serving food in housing units instead of having prisoners travel and congregate in dining halls. The guidelines also generally call for reducing activities that cause prisoners to congregate in large groups. 18. Health experts have warned that there is an increased risk of contracting and transmitting COVID-19 when groups of people live, eat, and sleep in close proximity. 19. In response to this guidance, jurisdictions around the world and in the United States have taken bold actions to save lives for inmates and for the community. Germany released “1,000
4 American Jail Association, Recommended Strategies for Sheriffs and Jails (March 20, 2020). 5

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prisoners who are close to the end of their sentences”; Canada released “1,000 inmates in the state of Ontario”; and Iran “temporarily release[d] 85,000 prisoners, with 10,000 of them being granted pardons.”5 The New Jersey Supreme Court announced that it would release “as many as 1,000 people from its jails”6 and New York City is releasing more than 1,000 people from its jails.7 This effort to downsize facilities like prisons and jails, which are breeding grounds for the highly contagious virus, is not limited to the East Coast. It is an urgent nationwide effort. Cuyahoga County, Ohio, announced plans to rapidly release around 600 people from the county jail just two days after President Trump declared a national emergency; Washington County, Oregon, released more than 120 people from the local jail; Alameda County, California, released 314 people from their jail; the Iowa Department of Corrections began to release 700 people from state prisons; Mercer County, Pennsylvania, released 60 of 308 people in their jail.8 Despite such actions around the country, the District of Columbia and BOP have failed to act. 20. Given the size of the current population inside Hope Village and the structure of the living arrangements, the facility simply cannot provide the safety and COVID-19 protection that is constitutionally mandated under the Eighth Amendment. 21. Because of Defendants’ continuing violations of Plaintiffs’ constitutional rights, Plaintiffs seek class-wide relief requiring Defendants to join other jurisdictions in reducing the population
5 Michael Nienaber et al., Lock 'Em Up or Let 'Em Out? Coronavirus Prompts Wave of Prisoner Releases, REUTERS, March 25, 2020. 6 Tracey Tully, 1,000 Inmates Will Be Released From N.J. Jails to Curb Coronavirus Risk, N.Y. TIMES, March 23, 2020. 7 NYC to Release More Than 1,000 Prison Inmates Due to Coronavirus Concerns, ASSOC. PRESS, March 25, 2020. 8 Kimberly Kindy et al., ‘Disaster Waiting to Happen’: Thousands of Inmates Released as Jails and Prisons Face Coronavirus Threat, WASH. POST, March 25, 2020.
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of Hope Village and to implement other basic health and safety policies and procedures that would mitigate the risk to Plaintiffs.
Plaintiffs therefore ask this court for declaratory and injunctive relief, including requiring Defendants to: release enough people such that the remaining people can be housed safely and in
compliance with CDC guidance at Hope Village; and provide living, dining and sleeping arrangements that permit social distancing for those prisoners who remain at Hope Village.
JURISDICTION 22. This Court has subject matter jurisdiction over the allegations presented herein pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1346 (original jurisdiction), 28 U.S.C. §§ 2201-02 (declaratory relief), and 28 U.S.C. § 2241 (habeas jurisdiction). Plaintiffs’ claims under the common law of the District of Columbia arise from the same events as the federal claims and are within the Court’s supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
VENUE 23. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b), because a substantial part of the acts or omissions that give rise to Plaintiffs’ claim occurred or will occur in the District of Columbia.
PARTIES PLAINTIFFS 24. Mr. Thurman Williams is a 49-year-old man. He has been at Hope Village since February 18, 2020. 25. Mr. Williams has already served all of his 30 year prison sentence Mr. Williams becomes eligible for home confinement on June 17, 2020. Mr. Williams will be released on parole on
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December 17, 2020. He was transferred to Hope Village from Federal Correctional Institution – Schuykill. 26. Mr. Williams lives in a room at Hope Village in Building 50 with several other men. There are about 70 total prisoners in Building 50—including a resident who has reportedly tested positive for COVID-19. 27. Once released, Mr. Williams plans to live in District Heights, Maryland. During this extraordinary time, Mr. Williams would be safer living with his family instead of being crammed into small spaces with other prisoners of Hope Village. 28. Mr. Ronald Ian Boatright is a 36-year -old man confined to Hope Village. Despite the fact that Mr. Boatright became eligible for home confinement on March 13, 2020, Mr. Boatright was transferred from Federal Correctional Institution – Sheridan (“FCI Sheridan”) to Hope Village on March 16, 2020. Mr. Boatright’s release date is set for September 13, 2020. Mr. Boatright has a residence outside of Hope Village where he will stay. 29. In mid-February, prior to his transfer from FCI Sheridan, Mr. Boatright fell ill. Many prisoners at FCI Sheridan were sick with flu-like symptoms at the time. Mr. Boatright experienced shortness of breath, coughing, stomach pain, fever, hot flashes, and dizziness.
DEFENDANTS 30. Defendant BOP is a federal law enforcement agency subdivision of the United States Department of Justice and is responsible for the administration of federal prisons, and certain halfway houses, including Hope Village. BOP maintains physical custody of Plaintiffs. 31. Defendant District of Colombia oversees the D.C. Department of Corrections (DOC), an agency responsible for ensuring public safety for citizens. DOC’s mission is the ensure public
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safety by providing “orderly, safe, secure, and humane environment for the confinement of pretrial detainees and sentenced inmates.” 32. Defendant Quincy Booth is the Director of the DOC. He is sued in his official capacity. 33. Defendant Michael Carvajal is the Director of the Federal Bureau of Prisons. He is sued in his official capacity. 34. Defendant Hope Village, Inc., is a privately owned halfway house in Washington, D.C. Hope Village has contracts with both the BOP and the DOC to provide housing and care to the plaintiffs and others similarly situated. Hope Village houses both persons who have been released from federal correctional facilities, persons awaiting trial in the District, and or persons convicted of misdemeanors in the District.
FACTUAL BACKGROUND COVID-19 Presents A Serious Risk of Harm in the Criminal Justice System
35. Outcomes from COVID-19 vary from asymptomatic infection to death. Some individuals who contract the disease may experience mild symptoms, while others may suffer respiratory failure and death. People with pre-existing medical conditions, such as asthma, kidney disease, heart disease, obesity, and diabetes, are at an increased risks of having- serious complications if they contract COVID-19. 36. In the highest risk populations, the fatality rate is about 15 percent, meaning that out of 100 vulnerable people infected, fifteen (or approximately 1 in 7) will die. 37. Those who do not die may experience long-term harm. COVID-19 can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases, can cause a permanent loss of respiratory capacity.
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38. Research shows that avoiding groups and social distancing is a critical means of risk mitigation. Distancing must occur before individuals display symptoms, as they may be contagious before they are symptomatic. The CDC recommends a social distance of at least 6 feet to minimize the risk of spread. This CDC guidance extends this to correctional facilities: prisoners’ beds should be at least 6 feet apart. 39. Given the nature of congregation in detention facilities, there is an increased risk that COVID-19, a highly contagious disease, will spread more quickly to a larger number of people. This Court has already recognized that the risk of spreading the virus in jail is “palpable” and risks overburdening the healthcare resources of the facility and the surrounding community.9 Given this inherent danger, courts around the country, including the District of Columbia, have released people from incarceration due to concerns about COVID-19.10
Conditions in Hope Village Halfway House
40. The conditions in Hope Village facilities disregard all medical and public health directives for risk mitigation. Hope Village does not encourage or practice social distancing in its facilities. Furthermore, the structure and layout of Hope Village makes social distancing impossible. 41. There are many opportunities for the virus to enter Hope Village.
9 U.S. v. Jaffee, No.19-cr-88-RDM (D.D.C. Mar. 26, 2020) 10 106 people who were incarcerated on Rikers Island for Technical Parole Violations were ordered to be released on March 27, 2020 (see https://legalaidnyc.org/wpcontent/uploads/2020/03/03-27-20-Secures-Release-of-106-Incarcerated-New-Yorkers-at-ahigh-risk-of-COVID-19-from-Technical-Parole-Violation-Holds-on-RikersIsland.docx.pdf?fbclid=IwAR3IvbeyQ1BdlVdnwjsZjVd_S71X06ppuQAyGK2vUj7n2XpOa5URMPyZfQ; A defendant with a history of gun and drug charges was released to home confinement due to concerns related to COVID-19 spread. U.S. v. Jaffee, No. 19-cr-88-RDM (D.D.C. Mar. 26, 2020); A defendant convicted of child pornography charges was released to home confinement due to concerns related to COVID-19 spread. U.S. v. Harris, No.19-cr-356-RDM, Dkt. No. 36 (D.D.C. Mar. 26, 2020).
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42. Although prisoners are currently not allowed to leave Hope Village, Hope Village still is admitting new prisoners. The CDC guidelines recommend screening for any new prisoners to detect potential COVID-19 symptoms. 43. Defendants have admitted new individuals and prisoners without screening. This creates a heightened risk that the virus will be introduced into the facility. 44. Defendants are not screening staff each day. This presents a daily risk of introduction of the virus into Hope Village’s facility. 45. On March 20, 2020, Hope Village issued a shelter in place order for all prisoners. This order has exacerbated crowded conditions at Hope Village, because all of the prisoners must stay in the facility at all times. 46. Prisoners in Hope Village live in close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread of COVID-19. Prisoners in Hope Village share apartments. Each apartment has two bedrooms, each of which houses four prisoners who sleep in bunk beds roughly 3 feet apart. Each apartment has only one bathroom that is shared among all the men assigned to that apartment. 47. The CDC recommended that correctional facilities provide no-cost access to soap, running water, and tissues to all prisoners. 48. Prisoners in Hope Village have limited access to hot water, soap, disinfectants, gloves, and masks. Hope Village has not provided hygiene and cleaning supplies to people incarcerated there. Prisoners are responsible for purchasing their own hygiene supplies, but there is no
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commissary at the facility. Since the lockdown of the facility began on March 20, 2020, prisoners have to rely on family, if they have family in the area, to drop off hygiene supplies.11 49. Prisoners are responsible for cleaning and sanitizing their own apartments and common areas, including the shared bathrooms. 50. They frequently lack adequate cleaning supplies to do so. 51. Prisoners report that the cleaning supplies are not readily available and those that are available are watered down. 52. Lysol and alcohol-based cleaning supplies are not permitted because they are considered contraband. 53. No hand sanitizer is available to people incarcerated at Hope Village because it is considered contraband. 54. Tissues are not readily available. 55. According to Hope Village, toilet paper is distributed twice a week.12 56. Hallways also pose risks of contagion: prisoners share the hallways, and everyone, including quarantined individuals, use the hallway to access services. 57. Hope Village’s dining facilities preclude the CDC-recommended social distancing and increase transmission opportunities. Prisoners at Hope Village eat meals in large groups of about
11 District of Columbia Corrections Information Council, CIC Visit to Hope Village on Thursday March 26, 2020, at 5, available at https://cic.dc.gov/sites/default/files/dc/sites/cic/release_content/attachments/Now%20Hope%20 Village%20CIC%20Statement%203_27_20%20-compressed.pdf 12 District of Columbia Corrections Information Council, CIC Visit to Hope Village on Thursday March 26, 2020, at 3, available at https://cic.dc.gov/sites/default/files/dc/sites/cic/release_content/attachments/Now%20Hope%20 Village%20CIC%20Statement%203_27_20%20-compressed.pdf
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20-25 people at any given time.13 Five people must sit at each of five or six round tables, which are approximately 5 feet in diameter.14 People eat from open trays in these crowded spaces. Additionally, prisoners take their silverware from an open communal box. 58. The dining area is not in the same buildings in which prisoners live. Consequently, on the way to the dining hall, prisoners must touch or open doors that are touched by many other prisoners. There is no sink in the dining area, so prisoners have no means to wash their hands before they eat and after touching doors that they needed to open on the way to the dining area. 59. When Hope Village suspects someone may have contracted COVID-19, Hope Village places that person in isolation by assigning the person to an apartment without roommates. 60. The quarantined person continues to share hallways with the rest of the residents living in the building. Staff bring food trays to quarantined residents. 61. One person who was recently released from isolation was told he cannot remain living in the apartment by himself. Instead, Hope Village required him to move into an apartment with 6 other men. He now shares a bedroom with 3 other men. 62. Hope Village has not educated prisoners on ways to minimize community spread of COVID-19. 63. Hope Village does not have on-site medical staff. Prisoners receive medical treatment only if they are sent by ambulance to a hospital. 64. Hope Village has not informed the population of any protocol for isolating symptomatic prisoners.
13 District of Columbia Corrections Information Council, CIC Visit to Hope Village on Thursday March 26, 2020, at 3, available at https://cic.dc.gov/sites/default/files/dc/sites/cic/release_content/attachments/Now%20Hope%20 Village%20CIC%20Statement%203_27_20%20-compressed.pdf 14 Id.
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65. These crowded conditions, in both sleeping and social areas, and the shared bathrooms maximize the likelihood that COVID-19 will spread rapidly across the facilities, infecting vulnerable detainees. 66. The conditions in Hope Village are dire. They are contrary to CDC guidance and BOP guidelines. Defendants have created a significant and immediate risk of spreading COVID-19, putting the prisoners health and lives in danger.
Hope Village Continues to Expose Plaintiffs to Dangerous Conditions of Confinement Despite Being Advised of These Dangers
67. Public health measures across the country demonstrate the widespread recognition that protecting individuals from potentially serious illness or death from COVID-19 requires practice social distancing and increased hygiene. 68. On March 23, 2020 the Center for Disease Control issued the Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities. The guidance specifically recommends implementing social distancing strategies to increase the physical space between people, “ideally 6 feet between all individuals, regardless of the presence of symptoms” 69. The University of Texas at Austin’s Lyndon B. Johnson School of Public Health, issued Recommended Strategies For Sheriffs And Jails To Respond To The Covid-19 Crisis. The guidance includes suggestions for ensuring safe practices within the prisoner population to reduce the risk of COVID-19. In particular, it suggests reducing the prisoner population, implementing screening measures, providing free hygiene products for living areas, communicating information to prisoners on the symptoms and risks of COVID-19 as well as ways to prevent its spread, and responding swiftly to any cases.
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70. The CDC guidance also states that facilities should “ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility.” The CDC lists cleaning supplies, soap, and daily medical supplies as supplies that should be within the facility. 71. The Federal Bureau of Prisons began preparing for COVID-19 response in January 2020, including issuing guidance to screen inmates and staff. BOP’s COVID-19 guidance was shared with private prisons and RRCs for dissemination to staff and inmates in these facilities, so that similar protocols can be implemented. The BOP states that facilities should be screening all newly-arriving prisoners for COVID-19, asymptomatic inmates with exposure risk factors should be quarantined, symptomatic inmates with exposure risk factors should be isolated. 72. BOP also stated that they would “implement nationwide modified operations to maximize social distancing and limit group gathering in our facilities” The guidance suggested staggering meal times. 73. BOP is charged with establishing policies and regulations that are safe, humane, and secure for all federal penitentiaries and other prison facilities. BOP has discretion to place prisoners on home confinement or furlough. 74. Hope Village detains all prisoners in contradiction of CDC and BOP guidance. 75. Hope Village has also tried to silence the prisoners’ cries for help. Staff of Hope Village threatened prisoners with discipline for rioting, if they tried to speak with District of Columbia Councilmember Trayon White about the conditions at Hope Village when he came to visit.
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LEGAL FRAMEWORK
Plaintiffs Have a Constitutional Right to Reasonable Safety in Confinement.
76. The Eighth Amendment prohibits cruel and unusual punishments. U.S. Const. Amend. VIII. 77. The government has an affirmative duty to provide conditions of reasonable health and safety when it detains or incarcerates them. Brown v. Plata, 563 U.S. 493, 510-11 (2011). 78. The reach of the Eighth Amendment includes “exposure of inmates to serious, communicable disease.” Helling v. McKinney, 509 U.S. 25, 33 (1993). 79. The Eighth Amendment requires that “inmates be furnished with … reasonable safety and the Supreme Court has explicitly recognized that the risk of contracting “serious contagious diseases” may constitute such an “unsafe, life-threatening condition” that it threatens reasonable safety.” Id..A potential COVID-19 outbreak poses a substantial risk of serious harm to every person housed in Hope Village. 80. The risk of exposure to COVID-19 constitutes a serious risk to health. Under the current conditions in Hope Village, Defendants have not and cannot protect Plaintiffs from the risk of this serious harm. 81. Defendants have acted with deliberately indifference to the needs of the plaintiffs, by, inter alia:
a. Ignoring conditions that are very likely to cause serious illness such as: crowded dining rooms, crowded sleeping quarters, lack of access to cleaning products, lack of access to products to maintain personal hygiene.
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b. Ignoring CDC and BOP guidelines about posting signage to educate prisoners about COVID-19, its symptoms, and preventative measures.
c. Ignoring CDC guidelines and professional guidance to create social distance of about six feet between persons to help stop the spread of COVID-19.
d. Continuing to admit new prisoners. e. Failing to test newly admitted individuals. f. Failing to screen prisoner personnel as they enter the facility on a daily basis. g. Not having an on-site medical staff to address health concerns as they arise during a
global pandemic. Defendants Have Breached Their Duty of Care Owed to the Prisoners Resulting in
Harm 82. As penal authorities, Defendants owe a duty to provide reasonable care to the prisoners in their protection and safekeeping. Matthews v. District of Columbia, 387 A. 2d 731, 734 (D.C. 1978). 83. Defendants knew of the dangers associated with COVID-19 and failed to mitigate the risks. The BOP issued guidance to their facilities on how to deal with COVID-19. 84. Defendants breached that duty by, inter alia, failing to provide care consistent with directives from the CDC and BOP. For example, Hope Village failed to:
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a. Provide prisoners with the opportunity to practice social-distancing, including by staggering meal times, or confining less people to one apartment. Hope Village continues to feed 25-30 prisoners at a time in a common area. Prisoners have to sit five to a table. The tables only have a five foot diameter making it impossible for the recommended six feet for social distancing. Prisoners have to sleep in bunk beds that are very close together.
b. Provide sanitary conditions and supplies to maintain good hygiene.
c. Stop admitting new prisoners or at the very least screen incoming prisoners for COVID-19 symptoms before admission.
d. Screen Hope Village staff as they enter the facility on a daily basis.
e. Follow CDC and BOP guidelines about posting signage to educate prisoners about COVID-19, its symptoms, and preventative measures.
f. Have medical staff on-site to address health concerns as they arise during a global pandemic.
85. Hope Village’s failures have caused plaintiffs to suffer increased risk of harm and have increased the threat from existing conditions.
CLASS ALLEGATIONS 86. Plaintiffs bring the causes of action identified below on behalf of themselves and all other persons similarly situated pursuant to Federal Rule of Civil Procedure 23(b)(2). For those causes of action, Plaintiffs seek injunctive and declaratory relief applicable to members of the class, as defined below.
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87. Plaintiffs bring this action on behalf of the following class: All persons who were, as of the filing date of the complaint in this case, or will be in the future, confined in Hope Village. Plaintiffs reserve the right to amend the class definition or establish sub-classes as appropriate if discovery or further investigation reveals the class should be expanded or otherwise modified. 88. Class action status for this litigation is proper under Rule 23(b)(2) because:
a. The class is so numerous that joinder is impracticable. Based upon information and belief, the size of the class is approximately 200 people and is therefore so numerous that joinder is inherently impracticable for that reason alone. Joinder is also impracticable for other, independent reasons. Proposed class members are highly unlikely to file individual suits on their own, as all are incarcerated and many are indigent, and thus have limited access to their retained or court-appointed counsel due to Defendants’ policies, are currently incarcerated, fear retaliation from filing suits against Defendants, and lack access and financial resources to obtain qualified counsel to bring such suits.
b. The claims of the class share common issues of fact and law, including but not limited to whether Defendants’ policies regarding health and hygiene as relevant to the COVID-19 pandemic — policies that systemically affect all proposed class members — violate the Eighth Amendment to the United States Constitution. The resolution of this question will drive the outcome of the litigation.
c. The claims of Plaintiffs are typical of those of the class as a whole, because each Plaintiff is currently in Defendants’ custody and Plaintiffs’ claims arise from the same policies and procedures (or lack thereof) that provide the basis for all proposed class members’ claims.
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d. Plaintiffs are adequate class representatives who meet all of the requirements of Rule 23(a)(4). They have no conflicts of interest in this case with other class members. They will fairly and adequately represent the interests of the class, and each understands the responsibilities of a representative. Counsel for Plaintiffs will vigorously prosecute the interests of the class and include attorneys with extensive experience with the factual and legal issues involved in representing jail and prison inmates, in asserting constitutional rights, and/or in pursuing class actions.
89. Defendants have acted and/or refused to act on grounds generally applicable to the class, thereby making final declaratory and injunctive relief appropriate with respect to the class as a whole under Federal Rule of Civil Procedure 23(b)(2).
CAUSES OF ACTION Claim I: Violation of Eighth Amendment (against Defendants Federal Bureau of Prisons and Carvajal) 90. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. The Eighth Amendment guarantees post-conviction detainees the right to reasonable safety. The Government’s failure to provide a safe environment during a widespread outbreak of a contagious disease constitutes deliberate indifference to the health and safety of persons at Hope Village, thereby establishing a violation of the Eighth Amendment. 91. Defendants have failed to provide adequate protections at Hope Village, where Plaintiffs are not able to take steps to protect themselves through social distancing and other guidelines set by the CDC. Furthermore, Hope Village is not taking precautions to protect persons housed from the threat of the virus coming into the facility from guards who come in and out of Hope Village
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daily. As COVID-19 rapidly spreads throughout the country, the already unsafe conditions at Hope Village will be intensified, and the ability to protect oneself will become even more impossible. 92. Defendant’s failure to adequately protect Plaintiffs’ constitutes a violation of their Eighth Amendment rights. 93. Federal courts have inherent equitable authority to order injunctive and declaratory relief to remedy violations of the Constitution by federal actors. Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015).
Claim II: Violation of Eighth Amendment Rights / 42 U.S.C. § 1983 (against Defendants District of Columbia and Booth)
94. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 95. Section 1983 provides that “every person, who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, or the District of Columbia, subject or causes to be subjected, any citizen of the United States or other persons within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution…shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C. § 1983. 96. By failing to provide adequate conditions in the midst of a global health pandemic, Defendant District of Columbia has violated Plaintiffs’ Eighth Amendment rights for the same reasons alleged in Claim I.
Claim III: Negligence (against Defendant Hope Village, Inc.)
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97. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 98. Defendant Hope Village, Inc., via its employees and agents, is well aware of the danger of COVID-19. 99. Hope Village owes a duty of care to Plaintiffs and breached that duty by failing to respond to the danger of COVID-19 by providing adequate conditions for prisoners. 100. Hope Village’s breach has caused the plaintiffs harm by exposing them to a serious risk of great harm and death.
PRAYER FOR RELIEF Plaintiffs therefore respectfully request that this Court grant the following relief: 101. Certify the class of all current and future residents of Hope Village. 102. Issue a declaration that the conditions to which Plaintiffs are subjected at Hope Village place Plaintiffs at an unreasonable risk of contracting serious illness. 103. Issue an injunction requiring that Defendants address the inadequate conditions at Hope Village. The injunction should require:
a. That Defendants release enough people such that the remaining people can be housed safely and in compliance with CDC guidance at Hope Village;
b. That Defendants take appropriate sanitary measures, including, inter alia: i. Clean the prisoners’ rooms daily; ii. Reduce the number of people at each meal time to facilitate social distancing pursuant to CDC guidelines; iii. Reduce the number of prisoners sharing bedrooms to facilitate social distancing pursuant to CDC guidelines;
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iv. Reduce the number of prisoners sharing bathrooms to ensure good hygiene; v. Provide products for prisoners to maintain a clean space and ensure good personal
hygiene; and vi. Ensure food safety, including ensuring that persons handling the food have been
tested or screened for COVID-19 symptoms. c. That Defendants stop admitting new prisoners to Hope Village; d. That Defendants provide an on-site medical team; e. That defendants screen staff and any person for COVID-19 symptoms upon every
entry into the facility; f. That Defendants screen any and every prisoner who complains of COVID-19
symptoms for the virus. Defendants should also implement isolations and quarantines when necessary; and g. That Defendants follow CDC and BOP guidelines and post signage to alert prisoners to the symptoms of COVID-19, and ways to prevent the spread of the virus. 104. Issue a Writ of Habeas Corpus and order the immediate release of Plaintiffs and sufficient members of the Plaintiff Class to ensure that the remaining residents can effectively practice social distancing and safe sanitation measures, with appropriate precautionary public health measures, on the ground that their continued detention violates their constitutional rights; 105. In the alternative, issue injunctive relief ordering all Defendants to immediately release Plaintiffs, with appropriate precautionary public health measures, on the grounds that their continued detention violates their constitutional rights; 106. Award Plaintiffs their costs and reasonable attorneys’ fees in this action under the Equal Access to Justice Act (“EAJA”), as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, The Civil
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Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988, and on any other basis justified under law; and 107. Grant any and all other such relief that this Court deems just and equitable.

Dated: April 2, 2020

Respectfully submitted,
/s/ Kevin Metz
Kevin Metz (D.C. Bar # 494087) Drew Wisniewski (D.C. Bar # 1016351) (pro hac vice pending) Clayton LaForge (D.C. Bar # 1033938) LATHAM & WATKINS LLP 555 Eleventh Street NW, Suite 1000 Washington, DC 20004 Tel: (202) 637-2200 kevin.metz@lw.com clayton.laforge@lw.com
Jonathan Smith (D.C. Bar # 396578) Emily Gunston (D.C. Bar # 1032056) (pro hac vice pending) Lyndsay A. Niles (D.C. Bar # 1003427) (pro hac vice pending) WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS 11 Dupont Circle, NW, Suite 400 Washington, DC 20036 jonathan_smith@washlaw.org
Attorneys for Plaintiffs

24

 
 Case 1:20-cv-00890-RC Document 3 Filed 04/02/20 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THURMAN WILLIAMS and
RONALD IAN BOATRIGHT
each individually and on behalf of all others similarly situated,
PLAINTIFFS,
v. FEDERAL BUREAU OF PRISONS
MICHAEL CARVAJAL, in his official capacity as Director, Federal Bureau of Prisons
DISTRICT OF COLUMBIA
QUINCY BOOTH, in his official capacity as Director, D.C. Department of Corrections
HOPE VILLAGE, INC.,
DEFENDANTS.

Civil No. _1_:_2_0_-c_v_-_8_9_0_____

PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER EXPEDITED ORAL HEARING REQUESTED
Plaintiffs Thurman Williams and Ronald Boatright respectfully move for the entry of a temporary restraining order to require that Defendants Federal Bureau of Prisons, Michael Carvajal, District of Columbia, Quincy Booth, and Hope Village, Inc. create conditions that will minimize and mitigate the spread of COVID-19 within Hope Village. Specifically, the Court should:

1. Certify the class of all current and future residents of Hope Village.

Case 1:20-cv-00890-RC Document 3 Filed 04/02/20 Page 2 of 4
2. Issue a declaration that the conditions to which Plaintiffs are subjected at Hope Village place Plaintiffs at an unreasonable risk of contracting serious illness.
3. Issue a Temporary Restraining Order requiring that Defendants address the inadequate conditions at Hope Village. The Temporary Restraining Order should require: a. That Defendants release enough residents such that the remaining residents can be housed safely and in compliance with CDC guidance at Hope Village; b. That Defendants take appropriate sanitary measures, including, inter alia: i. Clean the residents’ rooms daily; ii. Reduce the number of residents at each meal time to facilitate social distancing pursuant to CDC guidelines; iii. Reduce the number of residents sharing bedrooms to facilitate social distancing pursuant to CDC guidelines; iv. Reduce the number of residents sharing bathrooms to ensure good hygiene; v. Provide products for residents to maintain a clean space and ensure good personal hygiene; and vi. Ensure food safety, including ensuring that persons handling the food have been tested or screened for COVID-19 symptoms. c. That Defendants stop admitting new residents to Hope Village;
d. That Defendants provide an on-site medical team;
e. That Defendants screen staff and any person for COVID-19 symptoms upon every entry into the facility;

Case 1:20-cv-00890-RC Document 3 Filed 04/02/20 Page 3 of 4
f. That Defendants screen any and every resident who complains of COVID-19 symptoms for the virus. Defendants should also implement isolations and quarantines when necessary; and
g. That Defendants follow CDC and BOP guidelines and post signage to alert residents to the symptoms of COVID-19, and ways to prevent the spread of the virus.
4. Issue a Writ of Habeas Corpus and order the immediate release of Plaintiffs and sufficient members of the Plaintiff Class to ensure that the remaining residents can effectively practice social distancing and safe sanitation measures, with appropriate precautionary public health measures, on the ground that their continued detention violates their constitutional rights;
5. In the alternative, issue injunctive relief ordering all Defendants to immediately release Plaintiffs, with appropriate precautionary public health measures, on the grounds that their continued detention violates their constitutional rights;
6. Award Plaintiffs their costs and reasonable attorneys’ fees in this action under the Equal Access to Justice Act (“EAJA”), as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, The Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988, and on any other basis justified under law; and
7. Grant any and all other such relief that this Court deems just and equitable.
For the reasons set forth in the Memorandum Of Law In Support Of Plaintiffs’ Motion For Temporary Restraining Order And Preliminary Injunction and the Request For A TRO Hearing, Plaintiffs request that an oral hearing be held on an expedited basis pursuant to Local Civil Rules 7(f) and 65.1(a). A proposed order accompanies this motion.

Case 1:20-cv-00890-RC Document 3 Filed 04/02/20 Page 4 of 4

Dated: April 2, 2020

Respectfully submitted,
/s/ Kevin Metz
Kevin Metz (D.C. Bar # 494087) Drew Wisniewski (D.C. Bar # 1016351) (pro hac vice pending) Clayton LaForge (D.C. Bar # 1033938) LATHAM & WATKINS LLP 555 Eleventh Street NW, Suite 1000 Washington, DC 20004 Tel: (202) 637-2200 kevin.metz@lw.com clayton.laforge@lw.com
Jonathan Smith (D.C. Bar # 396578) Emily Gunston (D.C. Bar # 1032056) (pro hac vice pending) Lyndsay A. Niles (D.C. Bar # 1003427) (pro hac vice pending) WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS 11 Dupont Circle, NW, Suite 400 Washington, DC 20036 jonathan_smith@washlaw.org
Attorneys for Plaintiffs

 
 Case 1:20-cv-00890-RC Document 25 Filed 04/03/20 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THURMAN WILLIAMS, et al.,
Plaintiffs-Petitioners,
v. FEDERAL BUREAU OF PRISONS, et al.,
Defendants-Respondents.

Civil No. 1:20-cv-890______

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF CLASS COUNSEL
Pursuant to Federal Rule of Civil Procedure 23 and Local Rule 23.1, Plaintiffs move the Court to certify this case as a class action and to appoint Plaintiffs’ counsel as class counsel.
INTRODUCTION Plaintiffs file this class action to challenge Defendants’ reckless and deliberately indifferent treatment of the people in their custody and care at the Hope Village halfway house. As alleged in the complaint and demonstrated in Plaintiffs’ application for a temporary restraining order and motion for a preliminary injunction, Defendants are failing to take measures necessary to protect the health, safety, and lives of prisoners at Hope Village whom Defendants have crammed into small confined spaces, in violation of recent government guidance and orders.
This class satisfies all of the requirements of Federal Rule of Civil Procedure 23(a). First, the class members are numerous, consisting of more than 200 prisoners, making joinder impracticable. Second, the class members share common questions of fact, as they are all subject
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to the same life-threatening conditions and practices. They also share common questions of law, including whether conduct by the Federal Bureau of Prisons and the D.C. Department of Corrections violates their rights under the Eighth Amendment and whether Hope Village’s conduct is negligent by failing to exercise due care to prevent the spread of COVID-19. Third, the class representatives are subject to the same conditions as all class members and therefore assert claims typical of those asserted by the class. Fourth, the class representatives and their counsel will fairly and adequately protect class interests and will vigorously prosecute the action on behalf of the class.
Certification of Plaintiffs’ proposed class is warranted under Rule 23(b)(2), because Defendants are acting in the same matter with respect to the class, such that a temporary restraining order and preliminary injunction with respect to the whole class is appropriate.
Class members’ claims are not dependent on any individualized determinations. The central question is whether Defendants’ actions and inactions fall below minimum constitutional standards and the well-established duty of care as prisoner custodians. More than 200 prisoners at Hope Village are being or will be subjected to the consequences of those actions and inactions, and are or will be exposed to similar harms as a result.
Therefore, this Court should certify the proposed class and appoint class counsel. FACTUAL BACKGROUND
The relevant facts are set out in Plaintiffs’ Complaint and Motion for a Temporary Restraining Order and Preliminary Injunction. However, a brief summary of the facts is below:
COVID-19 is an out-of-control global pandemic. Because COVID-19 is highly contagious, the Centers for Disease Control and Prevention and other public health experts have advised that the best method to limit transmission of the virus is to practice “social distancing” and meticulous personal hygiene. At present, all men detained at Hope Village are unable to
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practice these social distancing and sanitary measures. Hope Village currently houses more than 200 individuals in tight quarters. Defendants have also denied sufficient access to appropriately sanitation methods, education, and equipment. Absent the granting of immediate injunctive relief and the entry of a temporary restraining order for the class, detention at Hope Village will likely result in severe illness, permanent medical consequences, and even death for a significant number of class members.
LEGAL STANDARD Federal Rule of Civil Procedure 23 sets out the requirements for certification of a class action. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613–14 (1997); J.D. v. Azar, 925 F.3d 1291, 1312 (D.C. Cir. 2019). First, Plaintiffs must satisfy the four Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011) (“Rule 23(a) ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate.”). Second, Plaintiffs must demonstrate that the case meets the requirements of one of Rule 23(b)’s subsections. Rule 23(b)(2) requires a showing that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2); see Wal-Mart Stores, Inc., 564 U.S. at 360.
ARGUMENT I. The Proposed Class Satisfies the Rule 23(a) Requirements. A. The Proposed Class Satisfies the Numerosity Requirement. The proposed class satisfies the requirement that a class be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). This requirement “imposes no absolute limitations” and is determined on a case-by-case basis. Radosti v. Envision EMI, LLC, 717 F. Supp. 2d 37, 51 (D.D.C. 2010) (quoting Gen. Tele. Co. of the Nw., Inc. v. EEOC, 446
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U.S. 318, 330 (1980)); see also Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 239 F.R.D. 9, 25 (D.D.C. 2006) (“There is no specific threshold that must be surpassed in order to satisfy the numerosity requirement; rather, each decision turns on the particularized circumstances of the case.”). However, this Court has “generally found that the numerosity requirement is satisfied . . . where a proposed class has at least forty members.” Radosti, 717 F. Supp. 2d at 51 (citing cases); In re APA Assessment Fee Litig., 311 F.R.D. 8, 14 (D.D.C. 2015). “[A] plaintiff need not provide the exact number of potential class members in order to satisfy this requirement,” Bynum v. Dist. of Columbia, 214 F.R.D. 27, 32–33, “[s]o long as there is a reasonable basis for the estimate provided.” Kifafi v. Hilton Hotels Ret. Plan, 189 F.R.D. 174, 176 (D.D.C. 1999).
Additionally, “[d]emonstrating impracticability of joinder does not mandate that joinder of all parties be impossible—only that the difficulty or inconvenience of joining all members of the class make[s] use of the class action appropriate.” DL v. Dist. of Columbia, 302 F.R.D. 1, 11 (D.D.C. 2013) (quotation marks and citation omitted), aff’d, 860 F.3d 713 (D.C. Cir. 2017). Factors relevant to impracticability include the “financial resources of class members ... and requests for prospective injunctive relief which would involve future class members.” Id. (quoting Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993)).
Here, the proposed plaintiff class satisfies the numerosity requirement because it will comprise over 200 prisoners who are detained or will be detained at Hope Village. The proposed class is thus significantly larger than the general threshold requirement of forty people. Besides the sheer number of class members, joinder is impractical for other reasons. First, the class seeks relief for future class members. Joinder is inherently impracticable where “the class seeks prospective relief for future class members, whose identities are currently unknown and who are therefore impossible to join.” DL, 302 F.R.D. at 11. A l s o , the overwhelming majority of
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putative class members are indigent, which raises another barrier to individual suits. See Colo.

Cross- Disability Coal. v. Taco Bell Corp., 184 F.R.D. 354, 359 (D. Colo. 1999) (finding

joinder impracticable where many class members could not afford to bring individual actions);

Jackson v. Foley, 156 F.R.D. 538, 54142 (E.D.N.Y. 1994) (finding joinder impracticable where

the majority of class members came from low-income households, greatly decreasing their

ability to bring individual lawsuits).

Accordingly, the proposed class satisfies the numerosity requirement of Rule 23(a)(1).

B.

The Proposed Class Satisfies the Commonality Requirement.

Rule 23(a)(2), which requires that there be “questions of law or fact common to the

class,” is likewise satisfied. The key to commonality is that class members’ claims “must

depend upon a common contention . . . of such a nature that it is capable of classwide

resolution—which means that determination of its truth or falsity will resolve an issue that is

central to the validity of each one of the claims in one stroke.” Wal-Mart, 564 U.S. 338, 350

(2011). “Even a single common question” will support a commonality finding, id. at 359

(alterations omitted), so long as its resolution will “generate common answers for the entire

class.” Thorpe v. Dist. of Columbia, 303 F.R.D. 120, 146-47 (D.D.C. 2014).

Commonality is satisfied where there is a single or “uniform policy or practice that

affects all class members.” DL v. Dist. of Columbia, 713 F.3d 120, 128 (D.C. Cir. 2013).

“[F]actual variations among the class members will not defeat the commonality requirement,

so long as a single aspect or feature of the claim is common to all proposed class members.”

Bynum, 214 F.R.D. at 33. Thus, in Bynum, Judge Lamberth explained that a proposed class

challenging over-detention by the District of Columbia Department of Corrections satisfied the

commonality requirement because “despite the fact that some of the plaintiffs might have been

detained past their release date for a longer time period than other plaintiffs, there are questions

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of law and fact that are common to the class.” Id. at 34. The same is true here. Proposed class members have, at least, the following key factual
issues in common: • Whether Defendants knew, or should have known, about the risks of COVID-19 to members of the proposed class; • Whether Defendants knew about the unhygienic and crowded conditions at Hope Village; • Whether Defendants have exposed, and are continuing to expose, members of the proposed class to a grave risk of serious harm, including death; • Whether Defendants have denied members of the proposed class the ability to practice social distancing; • Whether Defendants have denied members of the proposed class the ability to engage in adequate personal sanitary practices; and
Whether Defendants have failed to conduct adequate screening and temperature checks of proposed class members, and Hope Village staff members. In addition, the following legal questions are common to all proposed class members:
• Whether Defendants have acted with deliberate indifference towards members of the proposed class by failing adequately to safeguard their health and safety in the face of a known serious danger;
• Whether Defendants have failed to exercise due care to prevent the spread of COVID-19 to members of the proposed class.
Defendants’ practices with respect to COVID-19 affect all class members; they do not arise out of circumstances unique to each member. Those practices will also result in “common harms.” DL, 860 F.3d at 724. And all class members seek the same declaratory and injunctive relief. The Court’s determination of the legality of Defendants’ actions and inactions on one or
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more of the grounds alleged by class members will resolve all class members’ claims “in one

stroke.” Wal-Mart, 564 U.S. at 350.

Accordingly, the proposed class satisfies the commonality requirement of Rule

23(a)(2).

C.

The Proposed Class Satisfies the Typicality Requirement.

Plaintiffs’ claims are also “typical of the claims . . . of the class.” Fed. R. Civ. P.

23(a)(3). “The typicality requirement is satisfied ‘if each class member's claim arises from the

same course of events that led to the claims of the representative parties and each class member

makes similar legal arguments to prove the defendant’s liability.’” Radosti, 717 F. Supp. 2d at

52 (quoting In re Lorazepam & Clorazepate Antitrust Litig., 202 F.R.D. 12, 27 (D.D.C. 2001)).

The typicality and commonality requirements “often overlap because both serve as guideposts”

in determining “whether a class action is practical and whether the representative plaintiffs’

claims are sufficiently interrelated with the class claims to protect absent class members.” R.I.L-

R v. Johnson, 80 F. Supp. 3d 164, 181 (D.D.C. 2015) (internal quotations and citations omitted).

The typicality requirement “has been liberally construed.” Bynum, 214 F.R.D. at 34. As

with commonality, “[t]ypicality is not destroyed merely by ‘factual variations.’” Wagner v.

Taylor, 836 F.2d 578, 591 (D.C. Cir. 1987) (internal quotations and citations omitted). “Rather,

if the named plaintiffs’ claims are based on the same legal theory as the claims of the other

class members, it will suffice to show that the named plaintiffs’ injuries arise from the same

course of conduct that gives rise to the other class members’ claims.” Bynum, 214 F.R.D. at

35; see also Richardson v. L’Oreal USA, Inc., 991 F. Supp. 2d 181, 196 (D.D.C. 2013)

(“[C]ourts have found the typicality requirement satisfied when class representatives suffered

injuries in the same general fashion as absent class members.”) (internal quotation marks and

citation omitted).

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The named Plaintiffs claims are typical of the proposed class claims. As explained

above, their claims arise from the same response, or lack thereof, to the COVID-19 pandemic

by Defendants that provides the basis for all class members’ claims. They therefore “arise from

the same course of conduct that gives rise to the other class members’ claims,” Bynum, 214

F.R.D. at 35, and are based on the same legal theories as all class members’ claims. Moreover,

the injuries that Plaintiffs have suffered, will continue to suffer, and may suffer—namely,

exposure to a deadly virus and potential serious illness, permanent disability, and death—arise

from this same course of conduct and are typical of the injuries of the class as a whole.

Notwithstanding any individual differences that may exist between the Plaintiffs and other

members of the proposed class, Plaintiffs’ claims “are sufficiently interrelated with the class

claims to protect absent class members.” R.I.L-R, 80 F. Supp. 3d at 181.

Accordingly, Plaintiffs’ claims satisfy the typicality requirement of Rule 23(a)(3).

D.

The Proposed Class Satisfies the Adequacy Requirement.

The class representatives also “will fairly and adequately protect the interests of the

class.” Fed. R. Civ. P. 23(a)(4). To establish adequacy, “(1) the named representative must not

have antagonistic or competing interests with the unnamed members of the class, and (2) the

representative must appear able to vigorously prosecute the interests of the class through

qualified counsel.” Twelve John Does, 117 F.3d at 575 (quoting Nat’l Ass’n of Regional Med.

Programs, Inc. v. Mathews, 551 F.2d 340, 345 (D.C. Cir. 1976)).

Plaintiffs satisfy both criteria. First, Plaintiffs’ do not have antagonistic competing interests with the unnamed members of the class. Plaintiffs and class members are suffering the same harms. They assert the same legal claims, seek the same litigation outcomes, and would benefit from the same declaratory and injunctive relief. Moreover, Plaintiffs are not seeking monetary relief, so no financial conflict can arise between the claims of Plaintiffs and those of

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other class members. Thus, there is no conflict between Plaintiffs and unnamed class members. Second, Plaintiffs’ counsel are competent to represent the class and are prepared to vigorously prosecute the interests of the class.
Accordingly, the proposed class satisfies the adequacy requirement of Rule 23(a)(4). II. Class Certification is Appropriate Under Rule 23(b)(2). In addition to satisfying the four criteria of Rule 23(a), the proposed class must also fall into one of the three categories outlined in Rule 23(b). Here, the class action qualifies for certification under Rule 23(b)(2). Rule 23(b)(2) permits class certification where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” The Supreme Court has explained that
The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them. In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. Wal-Mart, 564 U.S. at 360 (quotation marks and citation omitted). Courts in this District have interpreted Rule 23(b)(2) to impose two requirements: “(1) the defendant’s action or refusal to act must be generally applicable to the class, and (2) plaintiff must seek final injunctive relief or corresponding declaratory relief on behalf of the class.” Steele v. United States, 159 F. Supp. 3d 73, 81 (D.D.C. 2016) (quotations and citations omitted); Bynum, 214 F.R.D. at 37; R.I.L.-R, 80 F. Supp. 3d at 182.
Both elements are easily satisfied. Defendants’ challenged practices are not tailored to individual prisoners, but apply to the Hope Village population as a whole. They apply to all
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class members simply by virtue of their status as persons detained (or to be detained) at Hope Village, without regard to the class members’ individual circumstances. For the same reason, all class members seek the same declaratory and injunctive relief.
Therefore, certification pursuant to Rule 23(b)(2), and class-wide relief, is appropriate. III. The Court Should Designate Plaintiffs’ Counsel as Class Counsel. Upon certifying the class, the Court must also appoint class counsel. Fed. R. Civ. P. 23(c)(1)(B); 23(g). Rule 23(g) requires the Court to consider the following four factors: (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class. Id. at 23(g)(1)(A)(i)–(iv). The Court may also consider “any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” Id. at 23(g)(1)(B). Plaintiffs’ counsel satisfy all four criteria. Counsel from Latham & Watkins LLP, the Washington Lawyers’ Committee for Civil Rights & Urban Affairs, and the ACLU Foundation of the District of Columbia, jointly represent Plaintiffs. Counsel from all three organizations are experienced litigators who have extensive experience representing clients in state and federal court. As the Complaint and Motion for Temporary Restraining Order and Preliminary Injunction indicate, Plaintiffs’ counsel have already devoted a substantial amount of time and resources investigating the factual and legal issues in this case, and will continue to do so throughout the pendency of the litigation. See, e.g., Encinas v. J.J. Drywall Corp., 265 F.R.D. 3, 9 (D.D.C. 2010) (“The plaintiffs have shown that they will adequately represent the class. . . . Counsel have already committed substantial time and resources to identifying and investigating potential claims in the action.”). Accordingly, the Court should appoint Plaintiffs’ counsel as
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class counsel in this case. CONCLUSION
For the reasons stated above, Plaintiffs’ motion should be granted. Plaintiffs respectfully request that the Court:
(1) certify the proposed class, consisting of all persons detained or to be detained at Hope Village; and
(2) appoint undersigned counsel to represent the class.

Dated: April 3, 2020

Respectfully submitted,
/s/ Kevin Metz
Kevin Metz (D.C. Bar # 494087) Drew Wisniewski (D.C. Bar # 1016351) (pro hac vice pending) Clayton LaForge (D.C. Bar # 1033938) LATHAM & WATKINS LLP 555 Eleventh Street NW Washington, DC 20004 Tel: (202) 637-2200 kevin.metz@lw.com drew.wisniewski@lw.com clayton.laforge@lw.com
Jonathan Smith (D.C. Bar # 396578) pro hac vice pending) Emily Gunston (D.C. Bar # 1032056) pro hac vice pending) Lyndsay A. Niles (D.C. Bar # 1003427) WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS 700 14th Street, NW, Suite 400 Washington, DC 20036
Tel: (202) 319-1000 Emily_Gunston@washlaw.org jonathan_smith@washlaw.org lyndsay_niles@washlaw.org
Scott Michelman (D.C. Bar No. 1006945) Arthur B. Spitzer (D.C. Bar No. 235960) Michael Perloff (D.C. Bar # 1601047) ACLU FOUNDATION OF THE DISTRICT OF COLUMBIA
19115 Fifteenth Street NW, Second Floor
Washington, DC 20005 Tel: (202) 457-0800

Case 1:20-cv-00890-RC Document 25 Filed 04/03/20 Page 12 of 12
artspitzer@gmail.com smichelman@acludc.org mperloff@acludc.org
Attorneys for Plaintiffs
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