Case 1:20-cv-21457-KMW Document 25 Entered on FLSD Docket 04/07/2020 Page 1 of 6
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Case No.: 1:20-cv-21457-KMW ANTHONY SWAIN, et al.,
Plaintiffs, v. DANIEL JUNIOR, et al.,
Defendants. /
ORDER GRANTING IN PART PLAINTIFFS’ EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER
THIS MATTER is before the Court on Plaintiffs’ Motion for Temporary Restraining Order (DE 3). Defendants oppose the motion. To obtain either a temporary injunction or a preliminary injunction, a party must demonstrate that: “(1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.” Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247 (11th Cir. 2016). Based on the Court’s review of the record, relevant case law, and the Parties’ representations during the telephonic status conferences held April 6, 2020 and April 7, 2020, Plaintiffs have met that standard.
Accordingly, after consultation with the Parties, and for the reasons cited at the telephonic status conferences held April 6, 2020 and April 7, 2020 with all Parties present, it is ORDERED and ADJUDGED that Plaintiffs’ Motion for Temporary Restraining Order (DE 3) is GRANTED IN PART as follows:
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1. It is ORDERED that by April 9, 2020, Defendants shall file under seal a list of all individuals who are currently detained at Metro West Detention Facility and who meet any of the criteria in paragraph three. This list shall be filed under seal to protect the confidential health information of those individuals and shall remain under seal pending further order by this Court.
2. It is further ORDERED that by April 9, 2020, Defendants shall file a notice describing the particular measures being employed to protect these individuals from the risk of COVID-19.1
3. The list of individuals shall include all of those currently detained at Metro West Detention Facility who meet any of the following criteria:
• Are 60 years of age or older; • Have chronic respiratory disease, including lung disease, moderate to
severe asthma, or chronic obstructive pulmonary disease (e.g. bronchitis or emphysema); • Have heart disease, such as congenital heart disease, congestive heart failure, or coronary artery disease; • Have chronic liver or kidney disease (including hepatitis and conditions requiring dialysis); • Have diabetes; • Have epilepsy; • Have diagnosed hypertension;
1 One of the lists required under Paragraph 1 or 2 shall be filed with the Court by 6:00 PM on April 9, 2020 and the other shall be filed by midnight on April 9, 2020.
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• Have a compromised immune system (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease);
• Have sickle cell disease; and/or • Are or have been pregnant within the last two weeks. 4. It is further ORDERED that Defendants shall take the following actions at the Metro West Detention Center: • Effectively communicate to all people incarcerated at Metro West Detention
Center, including low-literacy and non-English-speaking people, sufficient information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices to reasonably ensure that individuals are able to take precautions to prevent infection; • To the maximum extent possible considering Metro West Detention Center’s current population level, provide adequate spacing of six feet or more between people incarcerated at Metro West so that social distancing can be accomplished; • Ensure that each incarcerated person receives, free of charge: (1) an individual supply of soap, preferably liquid as recommended by the CDC, sufficient to allow frequent hand washing each day, (2) hand drying machines, or disposable paper towels as recommended by the CDC, and individual towels, sufficient for daily use (3) an adequate supply of disinfectant products effective against the virus that causes COVID-19 for daily cleanings; and (4) an adequate supply of toilet paper sufficient for daily
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use; • Provide reasonable access to showers and to clean laundry; • Require that all MDCR staff wear personal protective equipment, including
masks, and gloves when physically interacting with any person and require that, absent extraordinary or unusual circumstances, a new pair of gloves is worn each time MDCR staff touch a different person; and require all inmate workers who are cleaning facilities or preparing food to follow this same protocol; • Require that all MDCR staff regularly wash their hands with soap and water or use hand sanitizer containing at least 60% alcohol; • Ensure access to proper testing for anyone displaying known symptoms of COVID-19 in accordance with CDC guidelines; • Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 receive adequate medical care and are properly quarantined, with continued access to showers, mental health services, phone calling with family, and communications with counsel; individuals identified as having COVID-19 or having been exposed to COVID-19 shall not be placed in cells normally used for disciplinary confinement absent emergency circumstances; • Respond to all emergency (as defined by the medical community) requests for medical attention as soon as possible; • Provide sufficient disinfecting supplies consistent with CDC recommendations in each housing unit, free of charge, so incarcerated
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people can clean high-touch areas or any other items in the unit between each use; • Waive all medical co-pays for those experiencing COVID-19-related symptoms; and • Waive all charges for medical grievances during this health crisis. 5. This Temporary Order is valid for a limited period of 14 days or until further order of this Court, or until Defendants demonstrate that they have substantially complied with this Order. The Court’s ruling is subject to change based on a more fully developed record at preliminary injunction proceedings. 6. For purposes of this Order, the Court accepted the allegations in the Complaint and its attachments as true without briefing or evidentiary submissions by Defendants; this Order does not make a finding of wrongdoing on the part of any defendant and no defendant has waived any defenses to this action. 7. If Defendants have not yet been served in accordance with Federal Rule of Civil Procedure 4, Plaintiffs shall immediately provide a copy of this Order to Defendants. 8. A telephonic hearing on Plaintiff’s Emergency Motion (DE 3) for Preliminary Injunction is SET for April 21, 2020 at 1:00 PM. 9. Defendants shall file a response (not exceeding 35 pages) to Plaintiff’s Emergency Motion (DE 3) by April 16, 2020 at 5:00 p.m. Defendants need not file responses to any other pleading or motions until further order of the Court. Plaintiffs may file a reply by April 20, 2020 at 12:00 p.m.
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Case 1:20-cv-21457-KMW Document 25 Entered on FLSD Docket 04/07/2020 Page 6 of 6 DONE AND ORDERED in chambers in Miami, Florida, this 7th day of April, 2020.
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U.S. District Court Southern District of Florida (Miami) CIVIL DOCKET FOR CASE #: 1:20-cv-21457-KMW

Swain et al v. Junior et al Assigned to: Judge Kathleen M. Williams Referred to: Magistrate Judge Edwin G. Torres Case in other court: USCA, 20-11622-C Cause: 28:1983 Civil Rights Plaintiff Anthony Swain
https://ecf.ﬂsd.uscourts.gov/cgi-bin/DktRpt.pl?152314324686796-L_1_0-1

Date Filed: 04/04/2020 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Alexandria Twinem Civil Rights Corps. 1601 Connecticut Avenue, NW Suite 800 Washington, DC 20009 202-894-6126 Email: alexandria@civilrightscorps.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Hubbard Civil Rights Corps 1601 Connecticut Avenue, NW Suite 800 Washington, DC 20009 202-894-6126 Email: katherine@civilrightscorps.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Alena Sanoja GST, LLP 175 SW 7th Street Suite 2110 Miami, FL 33130 305-856-7723 Fax: (786)220-8265 Email: katherine.sanoja@gstllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Meena Jagannath Community Justice Project, Inc.
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3000 Biscayne Blvd Ste 106 Miami, FL 33137 609-933-4388 Email: meena@communityjusticeproject.com TERMINATED: 08/05/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas B. Harvey Advancement Project 1220 L Street, NW Suite 850 Washington, DC 20005 202-728-9557 Email: tharvey@advancementproject.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tiffany Yang Advancement Project 1220 L Street, NW Suite 850 Washington, DC 20005 202-728-9557 Email: tyang@advancementproject.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alec Karakatsanis Civil Rights Corps 1601 Connecticut Ave. NW, Suite 800 Washington, DC 20009 (202) 894-6126 Email: alec@civilrightscorps.org PRO HAC VICE ATTORNEY TO BE NOTICED
Lida Rodriguez-Taseff DLA Piper 200 S Biscayne Boulevard Suite 2500 Miami, FL 33131 305-423-8525 Fax: 305-675-7885 Email: Lida.RodriguezTaseff@dlapiper.com ATTORNEY TO BE NOTICED
Rodney Quinn Smith , II GST, LLP
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Plaintiff Alen Blanco

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175 SW 7th Street Suite 2110 Miami, FL 33130 305-856-7723 Fax: 786-220-8256 Email: quinn.smith@gstllp.com ATTORNEY TO BE NOTICED
represented by Alexandria Twinem (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine Hubbard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine Alena Sanoja (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Meena Jagannath (See above for address) TERMINATED: 08/05/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. Harvey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Tiffany Yang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alec Karakatsanis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Lida Rodriguez-Taseff (See above for address) ATTORNEY TO BE NOTICED

https://ecf.ﬂsd.uscourts.gov/cgi-bin/DktRpt.pl?152314324686796-L_1_0-1

Rodney Quinn Smith , II
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Plaintiff Bayardo Cruz

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(See above for address) ATTORNEY TO BE NOTICED
represented by Alexandria Twinem (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine Hubbard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine Alena Sanoja (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Meena Jagannath (See above for address) TERMINATED: 08/05/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. Harvey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Tiffany Yang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alec Karakatsanis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Lida Rodriguez-Taseff (See above for address) ATTORNEY TO BE NOTICED

Rodney Quinn Smith , II (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

Ronniel Flores

represented by Alexandria Twinem

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Plaintiff Winfred Hill

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(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Hubbard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Alena Sanoja (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Meena Jagannath (See above for address) TERMINATED: 08/05/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas B. Harvey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tiffany Yang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alec Karakatsanis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lida Rodriguez-Taseff (See above for address) ATTORNEY TO BE NOTICED
Rodney Quinn Smith , II (See above for address) ATTORNEY TO BE NOTICED
represented by Alexandria Twinem (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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Katherine Hubbard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine Alena Sanoja (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Meena Jagannath (See above for address) TERMINATED: 08/05/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. Harvey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Tiffany Yang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alec Karakatsanis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Lida Rodriguez-Taseff (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Deondre Willis

Rodney Quinn Smith , II (See above for address) ATTORNEY TO BE NOTICED
represented by Alexandria Twinem (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ﬂsd.uscourts.gov/cgi-bin/DktRpt.pl?152314324686796-L_1_0-1

Katherine Hubbard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
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Katherine Alena Sanoja (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Meena Jagannath (See above for address) TERMINATED: 08/05/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. Harvey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Tiffany Yang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alec Karakatsanis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Lida Rodriguez-Taseff (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Peter Bernal individually and on behalf of all others similarly situated

Rodney Quinn Smith , II (See above for address) ATTORNEY TO BE NOTICED
represented by Alexandria Twinem (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine Hubbard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ﬂsd.uscourts.gov/cgi-bin/DktRpt.pl?152314324686796-L_1_0-1

Katherine Alena Sanoja (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Meena Jagannath (See above for address) TERMINATED: 08/05/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas B. Harvey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tiffany Yang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alec Karakatsanis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lida Rodriguez-Taseff (See above for address) ATTORNEY TO BE NOTICED
Rodney Quinn Smith , II (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Daniel Junior Miami-Dade Corrections and Rehabilitation Dept. 2525 N.W. 62 Street Miami, FL in his ofﬁcial capacity as director of the Miami-Dade Corrections and Rehabilitation Department
https://ecf.ﬂsd.uscourts.gov/cgi-bin/DktRpt.pl?152314324686796-L_1_0-1

represented by Bernard Pastor Miami-Dade County Attorney's Ofﬁce Metro Dade Center 111 NW 1st Street Suite 2810 Miami, FL 33128-1993 305-375-5151 Fax: 375-5634 Email: pastor@miamidade.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ana Angelica Viciana Miami-Dade County Attorney's Ofﬁce 111 NW 1st Street Suite 2810 Miami, FL 33128 (305) 375-4948
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Email: anita@miamidade.gov ATTORNEY TO BE NOTICED

Erica Sunny Shultz Zaron Miami-Dade County Attorney's Ofﬁce 111 N.W. 1st Street Suite 2810 Miami, FL 33128 305-375-5151 Fax: 305-375-5611 Email: zaron@miamidade.gov ATTORNEY TO BE NOTICED

Ezra Saul Greenberg Miami-Dade County Attorneys Ofﬁce 111 NW 1st St Ste 2810 Miami, FL 33128 (305) 375-2994 Fax: (305) 375-5634 Email: ezrag@miamidade.gov ATTORNEY TO BE NOTICED

Jennifer Laura Hochstadt 111 NW 1st St. 27th Floor Miami, FL 33128 (305) 375-5760 Email: Hochsta@miamidade.gov ATTORNEY TO BE NOTICED

Defendant Miami-Dade County, Florida

Zachary Edward Vosseler Miami-Dade County Attorney's Ofﬁce 111 N.W. 1st Street, Suite 2810 Miami, FL 33128 (305) 375-5151 Email: zach@miamidade.gov ATTORNEY TO BE NOTICED
represented by Bernard Pastor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ana Angelica Viciana (See above for address) ATTORNEY TO BE NOTICED

Erica Sunny Shultz Zaron (See above for address) ATTORNEY TO BE NOTICED

https://ecf.ﬂsd.uscourts.gov/cgi-bin/DktRpt.pl?152314324686796-L_1_0-1

Ezra Saul Greenberg (See above for address)
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ATTORNEY TO BE NOTICED
Jennifer Laura Hochstadt (See above for address) ATTORNEY TO BE NOTICED
Zachary Edward Vosseler (See above for address) ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

04/05/2020

1 CLASS ACTION COMPLAINT against All Defendants. Filing fees $ 400.00 receipt number AFLSDC-12698013, ﬁled by Deondre Willis, Bayardo Cruz, Peter Bernal, Alen Blanco, Ronniel Flores, Anthony Swain, Winfred Hill. (Attachments: # 1 Civil Cover Sheet, # 2 Summon(s), # 3 Summon(s), # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit)(Smith, Rodney) (Entered: 04/05/2020)

04/05/2020

2 Clerks Notice of Judge Assignment to Judge Kathleen M. Williams. (vjk) (Entered: 04/05/2020)

04/05/2020 04/05/2020

3 EMERGENCY MOTION with Certiﬁcation of Emergency included by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. Responses due by 4/20/2020 (Attachments: # 1 Certiﬁcation Emergency Cert., # 2 Text of Proposed Order TRO, # 3 Text of Proposed Order PI, # 4 Exhibit 1., # 5 Exhibit 2., # 6 Exhibit 3., # 7 Exhibit 4., # 8 Exhibit 5., # 9 Exhibit 6., # 10 Exhibit 7., # 11 Exhibit 8., # 12 Exhibit 9., # 13 Exhibit 10, # 14 Exhibit 11)(Smith, Rodney) (Entered: 04/05/2020)
4 MOTION for Leave to File Excess Pages for MOTIONS FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. (Smith, Rodney) (Entered: 04/05/2020)

04/05/2020

5 MOTION to Certify Class by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. Responses due by 4/20/2020 (Attachments: # 1 Exhibit 1. Decl. of Mr. Smith, # 2 Exhibit 2. Dec. of Ms. Ragsdale, # 3 Exhibit 3. Dec. of Ms. Hubbard, # 4 Exhibit 4. Dec. of Mr. Harvey, # 5 Exhibit 5. Dec. of Ms. Yang, # 6 Exhibit 6. Dec. of Ms. Jagannath)(Smith, Rodney) (Entered: 04/05/2020)

04/05/2020

6 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Thomas B. Harvey. Filing Fee $ 200.00 Receipt # AFLSDC-12698061 by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. Responses due by 4/20/2020 (Attachments: # 1 Certiﬁcation, # 2 Text of Proposed Order)(Smith, Rodney) (Entered: 04/05/2020)

04/05/2020 04/05/2020

7 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Katherine Hubbard. Filing Fee $ 200.00 Receipt # AFLSDC-12698079 by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain. Responses due by 4/20/2020 (Attachments: # 1 Certiﬁcation, # 2 Text of Proposed Order)(Smith, Rodney) (Entered: 04/05/2020)
8 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically

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Receive Notices of Electronic Filing for Tiffany Yang. Filing Fee $ 200.00 Receipt # AFLSDC-12698080 by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. Responses due by 4/20/2020 (Attachments: # 1 Certiﬁcation, # 2 Text of Proposed Order)(Smith, Rodney) (Entered: 04/05/2020)
9 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Alexandria Twinem. Filing Fee $ 200.00 Receipt # AFLSDC-12698081 by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. Responses due by 4/20/2020 (Attachments: # 1 Certiﬁcation, # 2 Text of Proposed Order)(Smith, Rodney) (Entered: 04/05/2020)
10 PAPERLESS ORDER. THIS MATTER is before the Court on Plaintiffs' emergency motion for a temporary restraining order 3 . A telephonic status conference is SET for tomorrow, April 6, 2020 at 3:00 PM in the Miami Division before Judge Kathleen M. Williams. Plaintiffs are ORDERED to provide a copy of this Order to Defendants immediately. The Parties shall dial in 5 minutes before the scheduled start of the telephonic hearing.
Dial Toll-Free Number: 1-888-684-8852 Access Code: 7369700# Security Code: 1133#. Signed by Judge Kathleen M. Williams on 4/5/2020. (jws) (Entered: 04/05/2020)
11 NOTICE by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis re 3 EMERGENCY MOTION with Certiﬁcation of Emergency included of Filing Declaration of Dr. Fred Rottnek (Attachments: # 1 Afﬁdavit) (Smith, Rodney) (Entered: 04/05/2020)
12 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Alec Karakatsanis. Filing Fee $ 200.00 Receipt # AFLSDC-12700473 by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. Responses due by 4/20/2020 (Attachments: # 1 Certiﬁcation, # 2 Text of Proposed Order)(Smith, Rodney) (Entered: 04/06/2020)
13 PAPERLESS ORDER granting 6 Motion to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Attorney Thomas B. Harvey.
The Court ﬁnds that the application satisﬁes the requirements of S.D. Fla. Local Atty. R. 4.
Therefore, the Clerk is directed to add Thomas B. Harvey, Esq. as counsel of record for Plaintiffs and allow counsel to be noticed electronically on CM/ECF.
Signed by Magistrate Judge Edwin G. Torres on 4/6/2020. (js02) (Entered: 04/06/2020)
14 PAPERLESS ORDER granting 7 Motion to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Attorney Katherine Hubbard.
The Court ﬁnds that the application satisﬁes the requirements of S.D. Fla. Local Atty. R. 4. Therefore, the Clerk is directed to add Katherine Hubbard, Esq. as counsel of record for Plaintiffs and allow counsel to be noticed electronically on CM/ECF.
Signed by Magistrate Judge Edwin G. Torres on 4/6/2020. (js02) (Entered: 04/06/2020)

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15 PAPERLESS ORDER granting 8 Motion to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Attorney Tiffany Yang.
The Court ﬁnds that the application satisﬁes the requirements of S.D. Fla. Local Atty. R. 4. Therefore, the Clerk is directed to add Tiffany Yang, Esq. as counsel of record for Plaintiffs and allow counsel to be noticed electronically on CM/ECF.
Signed by Magistrate Judge Edwin G. Torres on 4/6/2020. (js02) (Entered: 04/06/2020)
16 PAPERLESS ORDER granting 9 Motion to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Attorney Alexandria Twinem.
The Court ﬁnds that the application satisﬁes the requirements of S.D. Fla. Local Atty. R. 4. Therefore, the Clerk is directed to add Alexandria Twinem, Esq. as counsel of record for Plaintiffs and allow counsel to be noticed electronically on CM/ECF.
Signed by Magistrate Judge Edwin G. Torres on 4/6/2020. (js02) (Entered: 04/06/2020)
17 NOTICE by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis re 3 EMERGENCY MOTION with Certiﬁcation of Emergency included of Filing Declaration of Dr. A. Henderson (Attachments: # 1 Afﬁdavit) (Smith, Rodney) (Entered: 04/06/2020)
18 Summons Issued as to Daniel Junior, Miami-Dade County, Florida. (Attachments: # 1 Summon(s))(vjk) (Entered: 04/06/2020)
19 PAPERLESS ORDER. THIS MATTER is before the Court following the telephonic status conference held today, April 6, 2020 on Plaintiffs' emergency motion for a temporary restraining order 3 . The telephonic status conference will RECONVENE tomorrow, April 7, 2020 at 11:00 AM in the Miami Division before Judge Kathleen M. Williams. Plaintiffs are ORDERED to provide a copy of this Order to Defendants immediately. The Parties shall dial in 5 minutes before the scheduled start of the telephonic hearing. Dial Toll-Free Number: 1-888-684-8852 Access Code: 7369700# Security Code: 1133#. Signed by Judge Kathleen M. Williams on 4/6/2020. (jws) (Entered: 04/06/2020)
20 PAPERLESS Minute Entry for proceedings held before Judge Kathleen M. Williams: Telephone Status Conference re: Emergency Motion DE # 3 held on 4/6/2020. Court discussed matters with the parties. Telephonic status conference scheduled for 4/7/2020 at 11:00 am before Judge Kathleen M. Williams.Counsel of record present. Court Reporter: Patricia Sanders, 305-523-5548 / Patricia_Sanders@ﬂsd.uscourts.gov. (mso) (Entered: 04/07/2020)
21 ORDER REFERRING CASE to Magistrate Judge Edwin G. Torres for Discovery Matters and Notice of Court Practices and Procedures. Signed by Judge Kathleen M. Williams on 4/7/2020. See attached document for full details. (ls) (Entered: 04/07/2020)
22 PAPERLESS ORDER. THIS MATTER is before the Court following the telephonic status conference held today, April 7, 2020 at 11:00 AM on Plaintiffs' emergency motion for a temporary restraining order 3 . The telephonic status conference will RECONVENE today, April 7, 2020 at 2:00 PM in the Miami Division before Judge Kathleen M. Williams. Plaintiffs are ORDERED to provide a copy of this Order to Defendants immediately. The Parties shall dial in 5 minutes before the scheduled start of the telephonic hearing. Dial Toll-Free Number: 1-888-684-8852 Access Code: 7369700#

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Security Code: 1133#. Signed by Judge Kathleen M. Williams on 4/7/2020. (jws) (Entered: 04/07/2020)
23 PAPERLESS Minute Entry for proceedings held before Judge Kathleen M. Williams: Telephone Status Conference re: DE # 3 Emergency Motion held on 4/7/2020. Court discussed matter with the parties and continued the hearing to 4/7/2020 at 2:00 pm. Counsel of record present. Court Reporter: Patricia Sanders, 305-523-5548 / Patricia_Sanders@ﬂsd.uscourts.gov. (mso) (Entered: 04/07/2020)
24 PAPERLESS Minute Entry for proceedings held before Judge Kathleen M. Williams: Telephone Conference re: DE # 3 Emergency motion reconvened on 4/7/2020 at 2:00 pm. Court discussed the matter further with the parties. Order to follow. Counsel of record present. Court Reporter: Patricia Sanders, 305-523-5548 / Patricia_Sanders@ﬂsd.uscourts.gov. (mso) (Entered: 04/07/2020)
25 ORDER GRANTING IN PART Plaintiffs' emergency motion for a temporary restraining order 3 . A telephonic Preliminary Injunction Hearing is set for April 21, 2020 at 1:00 PM in the Miami Division before Judge Kathleen M. Williams. Signed by Judge Kathleen M. Williams on 4/7/2020. See attached document for full details. (jws) (Entered: 04/07/2020)
26 PAPERLESS ORDER granting 4 Plaintiffs' Motion for Leave to File Excess Pages. As stated during the telephonic status conference held today, April 7, 2020, Plaintiffs' motion for leave to ﬁle excess pages in the emergency motion for a temporary restraining order is GRANTED. Signed by Judge Kathleen M. Williams on 4/7/2020. (jws) (Entered: 04/07/2020)
27 MOTION FOR SCHEDULING ORDER by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. (Attachments: # 1 Text of Proposed Order)(Smith, Rodney) (Entered: 04/08/2020)
28 PAPERLESS ORDER. THIS MATTER is before the Court on Plaintiffs' emergency motion for a temporary restraining order 3 and Plaintiffs' motion for a brieﬁng schedule as to the 2241 claim for habeas corpus. 27 . The Court has reviewed the motions and the record, and has held multiple telephonic status conferences since this case was ﬁled on April 5, 2020. Although the Court entered an injunctive order addressing the conditions of conﬁnement and established a brieﬁng schedule as to a preliminary injunction hearing, the Court asked the Parties to confer with regard to a brieﬁng schedule as to Plaintiffs' 2241 claim. The Parties were unable to agree on an appropriate schedule. 27 .
Accordingly, a telephonic status conference is SET for Monday, April 13, 2020 at 10:30 AM in the Miami Division before Judge Kathleen M. Williams. The Parties shall be prepared to discuss the claim for habeas relief as to the named Plaintiffs. The Parties may each, if they wish, ﬁle a supplemental brief (not to exceed 10 pages) in advance of the hearing, including appropriate citations to cases addressing this issue, by Sunday, April 12, 2020 at 12:00 PM. Plaintiffs shall also ﬁle a notice containing the following information as to each named Plaintiff: (1) criminal case number(s) for current charges; (3) statement of the charge(s); and (3) bond and status of bond.

04/09/2020 04/09/2020

The Parties shall dial in 5 minutes before the scheduled start of the telephonic hearing. Dial Toll-Free Number: 1-888-684-8852 Access Code: 7369700# Security Code: 1133#. Signed by Judge Kathleen M. Williams on 4/8/2020. (jws) (Entered: 04/08/2020)
SYSTEM ENTRY - Docket Entry 29 [misc] restricted/sealed until further notice. (745744) (Entered: 04/09/2020)
30 NOTICE by Daniel Junior of Compliance with Paragragh 2 of Court's April 7, 2020 Order (Pastor, Bernard) (Entered: 04/09/2020)

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04/11/2020
04/11/2020 04/12/2020 04/12/2020 04/12/2020 04/12/2020 04/12/2020 04/12/2020 04/12/2020 04/12/2020 04/12/2020

CM/ECF - Live Database - ﬂsd
31 NOTICE of Attorney Appearance by Lida Rodriguez-Taseff on behalf of Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. Attorney Lida Rodriguez-Taseff added to party Peter Bernal(pty:pla), Attorney Lida Rodriguez-Taseff added to party Alen Blanco(pty:pla), Attorney Lida RodriguezTaseff added to party Bayardo Cruz(pty:pla), Attorney Lida Rodriguez-Taseff added to party Ronniel Flores(pty:pla), Attorney Lida Rodriguez-Taseff added to party Winfred Hill(pty:pla), Attorney Lida Rodriguez-Taseff added to party Anthony Swain(pty:pla), Attorney Lida Rodriguez-Taseff added to party Deondre Willis(pty:pla). (RodriguezTaseff, Lida) (Entered: 04/10/2020)
32 MOTION to Expedite Discovery by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. (Attachments: # 1 Exhibit 1 Notice of Rule 30(b)(6) Deposition, # 2 Exhibit 2 - Request for Interrogatories, # 3 Exhibit 3 - Request for Admissions, # 4 Exhibit 4 - Request for Production)(RodriguezTaseff, Lida) (Entered: 04/11/2020)
33 NOTICE of Change of Address by Meena Jagannath (Jagannath, Meena) (Entered: 04/11/2020)
34 NOTICE of Attorney Appearance by Ezra Saul Greenberg on behalf of Daniel Junior, Miami-Dade County, Florida. Attorney Ezra Saul Greenberg added to party Daniel Junior(pty:dft), Attorney Ezra Saul Greenberg added to party Miami-Dade County, Florida(pty:dft). (Greenberg, Ezra) (Entered: 04/12/2020)
35 SUPPLEMENT to 28 Set/Reset Hearings,,,,,,, Order,,,,,, by Daniel Junior, Miami-Dade County, Florida (Zaron, Erica) (Entered: 04/12/2020)
36 SUPPLEMENT to 3 EMERGENCY MOTION with Certiﬁcation of Emergency included In Support of Habeas Relief by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis (Attachments: # 1 Afﬁdavit Declaration of Maya Ragsdale)(Rodriguez-Taseff, Lida) (Entered: 04/12/2020)
37 NOTICE by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis re 28 Set/Reset Hearings,,,,,,, Order,,,,,, (RodriguezTaseff, Lida) (Entered: 04/12/2020)
38 NOTICE of Attorney Appearance by Zachary Edward Vosseler on behalf of Daniel Junior, Miami-Dade County, Florida. Attorney Zachary Edward Vosseler added to party Daniel Junior(pty:dft), Attorney Zachary Edward Vosseler added to party Miami-Dade County, Florida(pty:dft). (Vosseler, Zachary) (Entered: 04/12/2020)
39 NOTICE of Attorney Appearance by Jennifer Laura Hochstadt on behalf of Daniel Junior, Miami-Dade County, Florida. Attorney Jennifer Laura Hochstadt added to party Daniel Junior(pty:dft), Attorney Jennifer Laura Hochstadt added to party Miami-Dade County, Florida(pty:dft). (Hochstadt, Jennifer) (Entered: 04/12/2020)
40 RESPONSE in Opposition re 32 MOTION to Expedite Discovery ﬁled by Daniel Junior, Miami-Dade County, Florida. Replies due by 4/20/2020. (Greenberg, Ezra) (Entered: 04/12/2020)
41 NOTICE by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis re 28 Set/Reset Hearings,,,,,,, Order,,,,,, (RodriguezTaseff, Lida) (Entered: 04/12/2020)
42 REPLY to Response to Motion re 32 MOTION to Expedite Discovery ﬁled by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. (Attachments: # 1 Exhibit A - Cook County Jail Coronavirus Tracker) (Rodriguez-Taseff, Lida) (Entered: 04/12/2020)

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43 PAPERLESS Minute Entry for proceedings held before Judge Kathleen M. Williams: Telephone Status Conference re: Emergency Motion held on 4/13/2020. Counsel of records present. Court Reporter: Patricia Sanders, 305-523-5548 / Patricia_Sanders@ﬂsd.uscourts.gov. (mso) (Entered: 04/13/2020)

04/13/2020

44 PAPERLESS ORDER. A Telephonic Status Conference is SET for today, April 13, 2020 at 3:30 PM in the Miami Division before Judge Kathleen M. Williams. Signed by Judge Kathleen M. Williams on 4/13/2020. (jws) (Entered: 04/13/2020)

04/13/2020

45 NOTICE by Daniel Junior, Miami-Dade County, Florida of ﬁling proposed amended scheduling order (Greenberg, Ezra) (Entered: 04/13/2020)

04/13/2020

46 PAPERLESS Minute Entry for proceedings held before Judge Kathleen M. Williams: Telephone Conference re: Emergency motion held on 4/13/2020. Counsel of record present. Court Reporter: Patricia Sanders, 305-523-5548 / Patricia_Sanders@ﬂsd.uscourts.gov. (mso) (Entered: 04/13/2020)

04/13/2020

47 PAPERLESS ORDER. THIS MATTER is before the Court following the telephonic status conferences held today, April 13, 2020. By 7:00 PM today, Plaintiffs shall ﬁle their proposed amended scheduling order related to the brieﬁng on Plaintiffs' emergency motion 3 and the limited discovery discussed during the conferences. By 8:00 PM today, the Parties shall ﬁle a joint notice indicating whether they have agreed on an individual who will conduct an inspection at Metro West. The Parties' list of proposed individuals may be emailed to the chambers email address. Signed by Judge Kathleen M. Williams on 4/13/2020. (jws) (Entered: 04/13/2020)

04/13/2020

48 NOTICE by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis re 28 Set/Reset Hearings,,,,,,, Order,,,,,, (RodriguezTaseff, Lida) (Entered: 04/13/2020)

04/13/2020

49 NOTICE by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis re 47 Order,, of Non-Agreement (Rodriguez-Taseff, Lida) (Entered: 04/13/2020)

04/14/2020

50 PAPERLESS ORDER. A telephonic status conference is SET for today, April 14, 2020 at 11:30 AM. The Parties shall dial in 5 minutes before the scheduled start of the telephonic hearing. Dial Toll-Free Number: 1-888-684-8852 Access Code: 7369700# Security Code: 1133#. Signed by Judge Kathleen M. Williams on 4/14/2020. (jws) (Entered: 04/14/2020)

04/14/2020

51 NOTICE of Attorney Appearance by Ana Angelica Viciana on behalf of Daniel Junior, Miami-Dade County, Florida. Attorney Ana Angelica Viciana added to party Daniel Junior(pty:dft), Attorney Ana Angelica Viciana added to party Miami-Dade County, Florida(pty:dft). (Viciana, Ana) (Entered: 04/14/2020)

04/14/2020

52 ORDER ON 27 PLAINTIFFS' MOTION FOR SCHEDULING ORDER. The telephonic preliminary injunction hearing is RESET for April 27, 2020 at 1:00 PM. Signed by Judge Kathleen M. Williams on 4/14/2020. See attached document for full details. (jws) (Entered: 04/14/2020)

04/14/2020

53 PAPERLESS Minute Entry for proceedings held before Judge Kathleen M. Williams: Telephone Status Conference re: emergency motion held on 4/14/2020.Counsel of record present. Court Reporter: Patricia Sanders, 305-523-5548 / Patricia_Sanders@ﬂsd.uscourts.gov. (mso) (Entered: 04/14/2020)

04/14/2020

SYSTEM ENTRY - Docket Entry 54 [misc] restricted/sealed until further notice. (1261384) (Entered: 04/14/2020)

04/16/2020

55 NOTICE of Compliance with Paragraph Eight of Court's Amended Scheduling Order by Daniel Junior, Miami-Dade County, Florida re 52 Order,, Terminate Motions,, Set/Reset

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Hearings, (Hochstadt, Jennifer) (Entered: 04/16/2020)
56 MOTION for Protective Order to Declare Rights of Plaintiffs Counsel To Communicate With Putative Class Members and for Protective Order by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. (Rodriguez-Taseff, Lida) (Entered: 04/17/2020)
57 EMERGENCY MOTION with Certiﬁcation of Emergency included for Status Conference by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. Responses due by 5/1/2020 (Attachments: # 1 Certiﬁcation of Emergency)(Rodriguez-Taseff, Lida) (Entered: 04/17/2020)
58 PAPERLESS ORDER. THIS MATTER is before the Court on Plaintiffs' emergency motion for a status conference 57 . Plaintiffs' motion for a status conference 57 is GRANTED and a brief telephonic status conference is set for today, April 17, 2020 at 5:00 PM in the Miami Division before Judge Kathleen M. Williams.

The Parties shall dial in 5 minutes before the scheduled start of the telephonic hearing. Dial Toll-Free Number: 1-888-684-8852 Access Code: 7369700# Security Code: 1133#. Signed by Judge Kathleen M. Williams on 4/17/2020. (jws) (Entered: 04/17/2020)

04/17/2020

60 PAPERLESS Minute Entry for proceedings held before Judge Kathleen M. Williams: Telephone Status Conference re: emergency motion held on 4/17/2020. Counsel of record present. Court Reporter: Patricia Sanders, 305-523-5548 / Patricia_Sanders@ﬂsd.uscourts.gov. (mso) (Entered: 04/20/2020)

04/19/2020

59 NOTICE of Compliance with Paragraph Eight of Court's Amended Scheduling Order by Daniel Junior, Miami-Dade County, Florida re 52 Order,, Terminate Motions,, Set/Reset Hearings, (Hochstadt, Jennifer) (Entered: 04/19/2020)

04/20/2020

SYSTEM ENTRY - Docket Entry 61 [misc] restricted/sealed until further notice. (704355) (Entered: 04/20/2020)

04/21/2020

62 PAPERLESS ORDER. THIS MATTER is before the Court on a review of the inspection report submitted on April 20, 2020. 61 . Accordingly, the Parties are ORDERED to confer and ﬁle a notice with the Court by 3:00 PM today, April 21, 2020, setting forth any reason(s) why the written portion of the report should not be unsealed. Signed by Judge Kathleen M. Williams on 4/21/2020. (jws) (Entered: 04/21/2020)

04/21/2020

63 NOTICE by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis re 62 Order, Joint Notice of Conferral (Rodriguez-Taseff, Lida) (Entered: 04/21/2020)

04/21/2020

64 PAPERLESS ORDER. THIS MATTER is before the Court on the Parties' joint notice stating that the Parties agree that the written portion of the inspection report may be unsealed. Accordingly, the written portion of the inspection report is UNSEALED and the Parties are ORDERED to ﬁle only this portion of the report to the docket publicly by 6:00 PM today, April 21, 2020. Signed by Judge Kathleen M. Williams on 4/21/2020. (jws) (Entered: 04/21/2020)

04/21/2020

65 NOTICE by Daniel Junior, Miami-Dade County, Florida of Filing Exhibits in Support of Response in Opposition to Motion for Preliminary Injunction (Attachments: # 1 Exhibit 1A: Declaration of Director Daniel Junior, # 2 Exhibit 1B: Declaration of Captain Safani Summons, # 3 Exhibit 1C:Declaration of Director Edith Wright, RN, # 4 Exhibit 1D:Declaration of Dr. Reggie Egins, MD, # 5 Exhibit 1E:Declaration of Cpl. Bridgett Johnson, # 6 Exhibit 1F:Declaration of Ofc. Patricia Delancy, # 7 Exhibit 1G:Declaration of Ofc. Jasmine Mayo, # 8 Exhibit 1H:Declaration of Cpl. Nicole Pieze, # 9 Exhibit 1I:Declaration of Ofc. Beatrice Almonor, # 10 Exhibit IJ:Declaration of Dr. Aileen Marty,

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MD, FCAP, # 11 Exhibit 2:SOP 090 Communicable Disease Temporary Housing Plan, April 3, 2020, # 12 Exhibit 3:Notiﬁcation to Inmates re: COVID-19, March 12, 2020, # 13 Exhibit 4:Inmate notiﬁcation re: free calls, March 16, 2020, # 14 Exhibit 5A:Memo re: COVID-19 Pareparedness, March 12, 2020, # 15 Exhibit 5B:Memo Directing NonEssential Personnel to Work from Home, Mask Use, Social Distancing and Hygiene, April 3, 2020, # 16 Exhibit 6A:Wellness Screening Memo, March 16, 2020, # 17 Exhibit 6B:Second Wellness Screening Memo, March 23, 2020, # 18 Exhibit 6C:Third Wellness Screening Memo, March 27, 2020, # 19 Exhibit 7:Law Enforcement Screening Letter, March 20, 2020, # 20 Exhibit 9:Script of Directors Video re: COVID-19 Pandemic, # 21 Exhibit 10:Directive re: cleaning of high-touch area and enhanced cleaning procedure attaching janitorial handbook, March 10, 2020, # 22 Exhibit 14A:Four emails to SAO and PD containing lists of inmates considered for early release, # 23 Exhibit 14B: Release statistics, # 24 Exhibit 15:Notiﬁcation to all inmates re: use of PPEs, # 25 Exhibit 16:Emails re: Social Distancing and Personal Hygiene, March 28, 2020, March 31, 2020, April 9, 2020, # 26 Exhibit 17:Memo to all MDCR staff re: COVID-19 preparedness, March 12, 2020, # 27 Exhibit 19:Inmate Handbook in 3 languages, # 28 Exhibit 20:Inventory of Critical Items MDCR, # 29 Exhibit 21:Inventory of distribution to MWDC, # 30 Exhibit 22:Sanitation Schedule MWDC, # 31 Exhibit 23:Directive from Captain Summons Regarding Paper Towels, # 32 Exhibit 26:Inmate Notiﬁcations re: Hygiene and Social Distancing Posted in three language in housing units with pictures for low-literacy inmates, # 33 Exhibit 27:Cell Representative Meeting, March 19, 2020, # 34 Exhibit 28:March 30, 2020 command staff meeting, # 35 Exhibit 29:COVID-19 Incident Command Center Response Line, # 36 Exhibit 30A:Eleventh Judicial Circuit MiamiDade County, Florida, Administrative Order No. 20-08 A1, # 37 Exhibit 30B:Onmibus Order to Terminate Jail Sentences April 3, 2020, # 38 Exhibit 30C:Second Onmibus Order to Terminate Jail Sentences April 3, 2020, # 39 Exhibit 30D:Motion for Release from Custody by Plaintiff Willis April 7, 2020, # 40 Exhibit 30E:Motion to Set Bond for Inmate Blanco, March 16, 2020, # 41 Exhibit 31A:Criminal Justice Information System Information (Swaine), # 42 Exhibit 31B:Criminal Justice Information System Information (Blanco), # 43 Exhibit 31C:Criminal Justice Information System Information (Cruz), # 44 Exhibit 31D:Criminal Justice Information System Information (Flores), # 45 Exhibit 31E:Criminal Justice Information System Information (Hill), # 46 Exhibit 31F:Criminal Justice Information System Information (Willis), # 47 Exhibit 31G:Criminal Justice Information System Information (Bernal), # 48 Exhibit 32:SOP 19-005 Inmate Classiﬁcations, # 49 Errata 33:Intake and Release Bureau SOP CL 20-001 Classiﬁcation Procedures 2-24-2020, # 50 Exhibit 13: Product Information of Cleaning Supplies in inmate housing at MWDC) (Greenberg, Ezra) (Entered: 04/21/2020)

04/21/2020

66 MOTION to Dismiss with Prejudice 1 Complaint,, for Failure to Exhaust Administrative Remedies by Daniel Junior, Miami-Dade County, Florida. Responses due by 5/5/2020 (Attachments: # 1 Exhibit DSOP 15-001, # 2 Exhibit Inmate Handbook, # 3 Exhibit Inmate Orientation Statements, # 4 Exhibit Declaration of Reynaldo Romero, # 5 Exhibit Declaration of Terrence Mathews)(Vosseler, Zachary) (Entered: 04/21/2020)

04/21/2020

67 RESPONSE in Opposition re 3 EMERGENCY MOTION with Certiﬁcation of Emergency included ﬁled by Daniel Junior, Miami-Dade County, Florida. Replies due by 4/28/2020. (Greenberg, Ezra) (Entered: 04/21/2020)

04/21/2020

SYSTEM ENTRY - Docket Entry 68 [misc] restricted/sealed until further notice. (1261384) (Entered: 04/21/2020)

04/21/2020

69 NOTICE by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis re 64 Order, JOINT NOTICE OF FILING UNSEALED INSPECTION REPORT (Rodriguez-Taseff, Lida) (Entered: 04/21/2020)

04/21/2020 70 NOTICE by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill,

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Anthony Swain, Deondre Willis re 64 Order, JOINT NOTICE OF FILING UNSEALED INSPECTION REPORT (Attachments: # 1 Exhibit A, Written Portion of the Metro West Detention Center Inspection Report of Dr. Dushyantha Jayaweera and Dr. Hansel Tookes) (Rodriguez-Taseff, Lida) (Entered: 04/21/2020)

04/22/2020

SYSTEM ENTRY - Docket Entry 71 [misc] restricted/sealed until further notice. (1525957) (Entered: 04/22/2020)

04/22/2020

72 NOTICE of Compliance with Paragraph Eight of Court's Amended Scheduling Order by Daniel Junior, Miami-Dade County, Florida re 52 Order,, Terminate Motions,, Set/Reset Hearings, (Hochstadt, Jennifer) (Entered: 04/22/2020)

04/23/2020

73 PAPERLESS ORDER. THIS MATTER is before the Court on the email communications with the Parties today, April 23, 2020. The Parties were asked if they preferred to conduct the hearing via videoconference or teleconference; if they intended to call witnesses; and if they had additional exhibits, other than those already submitted, to be introduced. The Parties were unable to agree on a format or answer these questions. Accordingly, the Court issues this Order. The preliminary injunction hearing set for April 27, 2020 at 1:00 PM will proceed as a telephonic hearing. The dial-in information remains the same. The Court notes that, although the hearing is proceeding telephonically rather than via video, the number of lawyers permitted to participate will nonetheless be limited to conduct the hearing in an orderly fashion. The Court further notes that it reserves the right to exclude any testimony or exhibit that has not been noticed or submitted to opposing counsel and the Court by 6:00 PM on April 24, 2020. Signed by Judge Kathleen M. Williams on 4/23/2020. (jws) (Entered: 04/23/2020)

04/24/2020

74 Exhibit and Witness List by Daniel Junior, Miami-Dade County, Florida.. (Attachments: # 1 Exhibit Motion for Release, # 2 Exhibit NYTimes Article)(Viciana, Ana) (Entered: 04/24/2020)

04/24/2020

75 MOTION to Seal per Local Rule 5.4 by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. (Rodriguez-Taseff, Lida) (Entered: 04/24/2020)

04/24/2020

76 Exhibit and Witness List for Hearing Scheduled for April 27, 2020 at 1:00 p.m. Submitted Pursuant to Paperless Order (ECF No. 73) by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis.. (Rodriguez-Taseff, Lida) (Entered: 04/24/2020)

04/24/2020

77 PAPERLESS ORDER granting 75 Plaintiffs' Motion to Seal. Plaintiffs may ﬁle the requested declarations under seal, but must ﬁle redacted copies of the declarations to the docket contemporaneously with the sealed documents. These shall be ﬁled no later than 12:00 PM tomorrow, April 25, 2020. The unredacted declarations shall remain sealed until further order of the Court. Signed by Judge Kathleen M. Williams on 4/24/2020. (jws) (Entered: 04/24/2020)

04/24/2020

78 NOTICE by Daniel Junior, Miami-Dade County, Florida re 73 Order,,,, Notice of Plaintiffs' Noncompliance with Court Order (Vosseler, Zachary) (Entered: 04/24/2020)

04/24/2020

79 MOTION to Seal Additional Composite Exhibit per Local Rule 5.4 by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. (Rodriguez-Taseff, Lida) (Entered: 04/24/2020)

04/24/2020

80 NOTICE by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis re 76 Exhibit and Witness List, 73 Order,,,, (Attachments: # 1 Exhibit Ex 1 Jail Stats Feb 25, 2020, # 2 Exhibit Ex 2 MDCorrections Twitter, # 3 Exhibit Ex 3 Doctors Editorial Article, # 4 Exhibit Ex 4 Kathy Rundle Tweet Mar. 16 2020, # 5 Exhibit Ex 5 MDCCorrection Tweet, # 6 Exhibit Ex 6 CDC Interim

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04/25/2020
04/25/2020 04/25/2020 04/25/2020 04/25/2020 04/25/2020 04/25/2020 04/25/2020

CM/ECF - Live Database - ﬂsd
Guidance, # 7 Exhibit Ex 7 John Hopkins Letter to Gov., # 8 Exhibit Ex 8 MD Press Release, # 9 Exhibit Ex 9 KFR Press Release, # 10 Exhibit Ex 10 Jail Stats April 3, 2020, # 11 Exhibit Ex 11 Jail Stats 4-23-20, # 12 Exhibit Ex 12 Letter, # 13 Exhibit Ex 15 Composite Marty Communication, # 14 Exhibit Ex 16 Decl of Dr. Golob, # 15 Exhibit Ex 17 Decl of Dr. Meyer, # 16 Exhibit Ex 18 Decl of Dr. Stern, # 17 Exhibit Ex 19 Decl of Dr. Mishori, # 18 Exhibit Ex 20 Decl of Dr. Greiﬁnger, # 19 Exhibit Ex 21 Decl of Dr. Chiao, # 20 Exhibit Ex 22 Decl of Dr. Paredes, # 21 Exhibit Ex 23 Decl of Rottnek, # 22 Exhibit Ex 24 Decl of Dr. A Henderson, # 23 Exhibit Ex 25 Decl of Anthony Swain, # 24 Exhibit Ex 26 Decl of W. Hill, # 25 Exhibit Ex 27 Decl of Alen Blanco, # 26 Exhibit Ex 28 Decl of Deondre Willis, # 27 Exhibit Ex 29 Decl Bayardo Cruz, # 28 Exhibit Ex 30 Decl. of Ronniel Flores, # 29 Exhibit Ex 31 Dec. of P. Bernal, # 30 Exhibit Ex 32 Decl. Ebert, # 31 Exhibit Ex 33 Decl of Dr. Greer, # 32 Exhibit Ex 34 Dec Marty, # 33 Exhibit Ex 35 Suppl Decl of Dr Greer, # 34 Exhibit Ex 36 Suppl Decl Rottnek, # 35 Exhibit Ex 38 Decl Franco Paredes) (Rodriguez-Taseff, Lida) (Entered: 04/24/2020)
81 NOTICE by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis re 77 Order on Motion to Seal, of Filing Redacted Exhibits (Attachments: # 1 Exhibit Ex 37 Redacted Decl Detainees, # 2 Exhibit EX 39 Redacted Decl Ragsdale, # 3 Exhibit EX 40 Redacted Decl Goggins, # 4 Exhibit EX 41 Redacted Decl Pla, # 5 Exhibit EX 42 Redacted Decl Stuhlmiller, # 6 Exhibit EX 43 Redacted Decl Mastos, # 7 Exhibit EX 44 Redacted Decl Fleites, # 8 Exhibit EX 45 Redacted Decl Gil) (Rodriguez-Taseff, Lida) (Entered: 04/25/2020)
SYSTEM ENTRY - Docket Entry 82 [misc] restricted/sealed until further notice. (704355) (Entered: 04/25/2020)
83 PAPERLESS ORDER granting 79 Plaintiffs' Motion to Seal. Plaintiffs' motion to seal the composite exhibit referenced in their motion is GRANTED. This exhibit shall be ﬁled under seal and shall remain sealed until further order by the Court. Having reviewed the declarations that were ﬁled under seal, however, the Court will revisit its ruling on Monday as to the necessity of those submissions remaining sealed. Signed by Judge Kathleen M. Williams on 4/25/2020. (jws) (Entered: 04/25/2020)
84 MOTION for Leave to File Motion to Convene Three-Judge Panel and to Exceed Page Limit by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. (Rodriguez-Taseff, Lida) (Entered: 04/25/2020)
85 REPLY to Response to Motion re 3 EMERGENCY MOTION with Certiﬁcation of Emergency included Preliminary Injunction and Motion to Convene ﬁled by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. (Rodriguez-Taseff, Lida) (Entered: 04/25/2020)
86 NOTICE of Compliance with Paragraph Eight of Court's Amended Scheduling Order by Daniel Junior, Miami-Dade County, Florida re 52 Order,, Terminate Motions,, Set/Reset Hearings, (Hochstadt, Jennifer) (Entered: 04/25/2020)
87 NOTICE of Compliance with Paragraph Eight of Court's Amended Scheduling Order by Daniel Junior, Miami-Dade County, Florida re 52 Order,, Terminate Motions,, Set/Reset Hearings, (Hochstadt, Jennifer) (Entered: 04/25/2020)
88 PAPERLESS ORDER. In light of the information ﬁled in Defendants' notice 87 , the Defendants shall ﬁle by 3:00 PM tomorrow, April 26, 2020 a detailed description of the "joint effort" described in DE 67 at page 34, including who is involved, how the release decisions referenced are made, whether this process is ongoing and whether, and how many of, the persons currently housed at Metro West are being considered in this effort. Signed by Judge Kathleen M. Williams on 4/25/2020. (jws) (Entered: 04/25/2020)

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04/27/2020
04/27/2020 04/27/2020
04/28/2020
04/28/2020
04/28/2020

CM/ECF - Live Database - ﬂsd
SYSTEM ENTRY - Docket Entry 89 [misc] restricted/sealed until further notice. (704355) (Entered: 04/26/2020)
90 NOTICE of Compliance by Daniel Junior, Miami-Dade County, Florida re 88 Order,, (Attachments: # 1 Exhibit A: Daily Court Order Log April 20, 2020, # 2 Exhibit B: Daily Court Order Log April 21, 2020., # 3 Exhibit Composite C: Sample of Orders Authorizing Release from Various Dates in March and April 2020) (Greenberg, Ezra) (Entered: 04/26/2020)
91 REPLY to Response to Motion re 66 MOTION to Dismiss with Prejudice 1 Complaint,, for Failure to Exhaust Administrative Remedies ﬁled by Daniel Junior, Miami-Dade County, Florida. (Vosseler, Zachary) (Entered: 04/27/2020)
92 NOTICE by Daniel Junior, Miami-Dade County, Florida of Filing Supplemental Declarations (Attachments: # 1 Exhibit 1: Supplemental Declaration of Director Edith Wright, RN, # 2 Exhibit 2: Supplemental Declaration of Director Edith Wright, RN, # 3 Exhibit 3: Supplemental Declaration of Dr. Reggie Egins, MD) (Greenberg, Ezra) (Entered: 04/27/2020)
93 PAPERLESS ORDER. THIS MATTER is before the Court following the telephonic preliminary injunction hearing held today, April 27, 2020. The telephonic preliminary injunction hearing will RECONVENE tomorrow, April 28, 2020 at 9:30 AM in the Miami Division before Judge Kathleen M. Williams. The dial-in information remains the same. Signed by Judge Kathleen M. Williams on 4/27/2020. (jws) (Entered: 04/27/2020)
94 NOTICE by Daniel Junior, Miami-Dade County, Florida (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Zaron, Erica) (Entered: 04/27/2020)
96 PAPERLESS Minute Entry for proceedings held before Judge Kathleen M. Williams: Telephonic Preliminary Injunction Hearing held on 4/27/2020. Court heard oral arguments by the parties. Witness Alen Blanco sworn and testiﬁed. Court extends TRO for good cause for another 48 hours. A telephone Hearing will resume tomorrow morning 4/28/2020 at 9:30 am before Judge Kathleen M. Williams. Counsel of record present. Court Reporter: Patricia Sanders, 305-523-5548 / Patricia_Sanders@ﬂsd.uscourts.gov. (mso) (Entered: 04/28/2020)
95 NOTICE by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis re 3 EMERGENCY MOTION with Certiﬁcation of Emergency included (Attachments: # 1 Afﬁdavit Declaration of Maya Ragsdale, # 2 Exhibit Emergency Motion to Reduce Bond ﬁled with exhibits in Miami-Dade County Criminal Case No. F16-2243A) (Rodriguez-Taseff, Lida) (Entered: 04/28/2020)
97 PAPERLESS Minute Entry for proceedings held before Judge Kathleen M. Williams: Telephonic Preliminary Injunction Hearing held on 4/28/2020. Court heard further witness testimony. The Honorable Nushin G. Sayﬁe sworn and testiﬁed. Order to follow. Counsel of record present. Court Reporter: Patricia Sanders, 305-523-5548 / Patricia_Sanders@ﬂsd.uscourts.gov. (mso) (Entered: 04/28/2020)
98 PAPERLESS ORDER granting 12 Motion to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Attorney Alec Karakatsanis.
The Court ﬁnds that the application satisﬁes the requirements of S.D. Fla. Local Atty. R. 4.
Therefore, the Clerk is directed to add Alec Karakatsanis, Esq. as counsel of record for Plaintiffs and allow counsel to be noticed electronically on CM/ECF.

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Signed by Magistrate Judge Edwin G. Torres on 4/28/2020. (js02) (Entered: 04/28/2020)

04/28/2020

99 NOTICE of Compliance with Paragraph Eight of Court's Amended Scheduling Order by Daniel Junior, Miami-Dade County, Florida re 52 Order,, Terminate Motions,, Set/Reset Hearings, (Hochstadt, Jennifer) (Entered: 04/28/2020)

04/29/2020

100 PAPERLESS ORDER granting in part and denying in part Plaintiffs' 3 emergency motion for a preliminary injunction. Plaintiffs' motion for a preliminary injunction 3 is GRANTED IN PART AND DENIED IN PART. Plaintiffs' motion for immediate release under Section 2241 is DENIED; Plaintiffs' motion for a preliminary injunction under Section 1983 is GRANTED IN PART for a period of 45 days. Signed by Judge Kathleen M. Williams on 4/29/2020. (jws) (Entered: 04/29/2020)

04/29/2020

101 Notice of Appeal as to 100 Order on Emergency Motion with Certiﬁcation of Emergency, by Daniel Junior, Miami-Dade County, Florida. Filing fee $ 505.00 receipt number AFLSDC-12817016. Within fourteen days of the ﬁling date of a Notice of Appeal, the appellant must complete the Eleventh Circuit Transcript Order Form regardless of whether transcripts are being ordered [Pursuant to FRAP 10(b)]. For information go to our FLSD website under Transcript Information. (Greenberg, Ezra) (Entered: 04/29/2020)

04/29/2020

102 Defendant's EMERGENCY MOTION with Certiﬁcation of Emergency included for stay pending appeal by Daniel Junior, Miami-Dade County, Florida. Responses due by 5/13/2020 (Greenberg, Ezra) (Entered: 04/29/2020)

04/30/2020

Transmission of Notice of Appeal, Order under appeal and Docket Sheet to US Court of Appeals re 101 Notice of Appeal, Notice has been electronically mailed. (apz) (Entered: 04/30/2020)

04/30/2020

103 PAPERLESS ORDER. THIS MATTER is before the Court on Defendants' emergency motion to stay. Plaintiffs shall ﬁle their response to the motion by 3:00 PM today, April 30, 2020. Signed by Judge Kathleen M. Williams on 4/30/2020. (jws) (Entered: 04/30/2020)

04/30/2020

104 RESPONSE in Opposition re 102 Defendant's EMERGENCY MOTION with Certiﬁcation of Emergency included for stay pending appeal ﬁled by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. Replies due by 5/7/2020. (Rodriguez-Taseff, Lida) (Entered: 04/30/2020)

04/30/2020

105 Acknowledgment of Receipt of NOA from USCA re 101 Notice of Appeal, ﬁled by Daniel Junior, Miami-Dade County, Florida. Date received by USCA: 4/30/2020. USCA Case Number: 20-11622-C. (apz) (Entered: 04/30/2020)

04/30/2020

106 ORDER denying 102 Defendants' Emergency Motion to Stay. Signed by Judge Kathleen M. Williams on 4/30/2020. See attached document for full details. (jws) (Entered: 04/30/2020)

05/01/2020

107 TRANSCRIPT INFORMATION FORM by Daniel Junior, Miami-Dade County, Florida re 101 Notice of Appeal,,. Telephonic hearings and preliminary injunction hearing transcript(s) ordered. Order placed by Ezra Greenberg and Bernard Pastor. Email sent to Court Reporter Coordinator. (Greenberg, Ezra) (Entered: 05/01/2020)

05/01/2020

108 NOTICE of Compliance with Court's Reporting Requirement by Daniel Junior, MiamiDade County, Florida re 100 Order on Emergency Motion with Certiﬁcation of Emergency, (Hochstadt, Jennifer) (Entered: 05/01/2020)

05/04/2020

109 MOTION release of Plaintiff Bayardo Cruz on bail pending the Courts ultimate decision on the class action habeas petition re 1 Complaint,, by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. (Attachments: # 1 Exhibit Ex 1 Decl Gregory Arrington, # 2 Exhibit Ex 2 Decl Efrain

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Garcia, # 3 Exhibit Ex 3 Suppl Decl Blanco, # 4 Exhibit Ex 4 Decl Ragsdale)(RodriguezTaseff, Lida) (Entered: 05/04/2020)

05/04/2020

110 MOTION for Extension of Time to File Response/Reply/Answer as to 66 MOTION to Dismiss with Prejudice 1 Complaint,, for Failure to Exhaust Administrative Remedies by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. (Attachments: # 1 Text of Proposed Order)(Rodriguez-Taseff, Lida) (Entered: 05/04/2020)

05/04/2020

111 PAPERLESS ORDER granting 110 Plaintiffs' Motion for Extension of Time. Plaintiffs shall ﬁle their response to Defendants' motion to dismiss by May 15, 2020. Signed by Judge Kathleen M. Williams on 5/4/2020. (jws) (Entered: 05/04/2020)

05/04/2020

112 PAPERLESS ORDER. THIS MATTER is before the Court on Plaintiffs' motion for release 109 . Defendants shall ﬁle an expedited response to the motion by May 11, 2020. Signed by Judge Kathleen M. Williams on 5/4/2020. (jws) (Entered: 05/04/2020)

05/04/2020

113 NOTICE of Compliance with Court's Reporting Requirement by Daniel Junior, MiamiDade County, Florida re 100 Order on Emergency Motion with Certiﬁcation of Emergency, (Hochstadt, Jennifer) (Entered: 05/04/2020)

05/04/2020

Set/Reset Deadlines/Hearings as to 66 MOTION to Dismiss with Prejudice 1 Complaint,, for Failure to Exhaust Administrative Remedies. Responses due by 5/15/2020 per DE 111 (cbr) (Entered: 05/05/2020)

05/04/2020

Set/Reset Deadlines/Hearings as to 109 MOTION release of Plaintiff Bayardo Cruz on bail pending the Courts ultimate decision on the class action habeas petition re 1 Complaint,, . Responses due by 5/11/2020 per DE 112 (cbr) (Entered: 05/05/2020)

05/11/2020

114 COURT REPORTER ACKNOWLEDGMENT re 107 Transcript Information Form,. Court Reporter: Patricia Sanders, 305-523-5548 / Patricia_Sanders@ﬂsd.uscourts.gov. (ps) (Entered: 05/11/2020)

05/11/2020

115 RESPONSE in Opposition re 84 MOTION for Leave to File Motion to Convene ThreeJudge Panel and to Exceed Page Limit, 109 MOTION release of Plaintiff Bayardo Cruz on bail pending the Courts ultimate decision on the class action habeas petition re 1 Complaint,, ﬁled by Daniel Junior, Miami-Dade County, Florida. Replies due by 5/18/2020. (Zaron, Erica) (Entered: 05/11/2020)

05/13/2020

116 EMERGENCY MOTION with Certiﬁcation of Emergency included , to Release Plaintiff Anthony Swain On Bail Pending Review of the Class Action Habeas Petition and Incorporated Memorandum Of Law by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. Responses due by 5/27/2020 (Attachments: # 1 Exhibit Supplemental Declaration of Swain, # 2 Certiﬁcation of Emergency)(Rodriguez-Taseff, Lida) (Entered: 05/13/2020)

05/14/2020

117 PAPERLESS ORDER. THIS MATTER is before the Court on Plaintiffs' emergency motion for release 116 . Defendants shall ﬁle an expedited response to the motion by tomorrow, May 15, 2020 at 12:00 PM. The response shall include information regarding Plaintiff Anthony Swain's medical situation and what treatment he is receiving. Signed by Judge Kathleen M. Williams on 5/14/2020. (jws) (Entered: 05/14/2020)

05/14/2020

Set/Reset Deadlines/Hearings as to 116 EMERGENCY MOTION with Certiﬁcation of Emergency included , to Release Plaintiff Anthony Swain On Bail Pending Review of the Class Action Habeas Petition and Incorporated Memorandum Of Law. Responses due by 5/15/2020 per DE 117 (cbr) (Entered: 05/14/2020)

05/15/2020

118 RESPONSE in Opposition re 116 EMERGENCY MOTION with Certiﬁcation of Emergency included , to Release Plaintiff Anthony Swain On Bail Pending Review of the

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Class Action Habeas Petition and Incorporated Memorandum Of Law ﬁled by Daniel Junior, Miami-Dade County, Florida. Attorney Bernard Pastor added to party MiamiDade County, Florida(pty:dft). Replies due by 5/22/2020. (Pastor, Bernard) (Entered: 05/15/2020)

05/15/2020

119 RESPONSE in Opposition re 66 MOTION to Dismiss with Prejudice 1 Complaint,, for Failure to Exhaust Administrative Remedies ﬁled by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. Replies due by 5/22/2020. (Attachments: # 1 Exhibit 1 - Blanco Suppl Decl, # 2 Exhibit 2 - Cruz Suppl Decl, # 3 Exhibit 3 - Stuhlmiller Grievance)(Rodriguez-Taseff, Lida) (Entered: 05/15/2020)

05/15/2020

120 STRICKEN per DE 121 REPLY to Response to Motion re 66 MOTION to Dismiss with Prejudice 1 Complaint,, for Failure to Exhaust Administrative Remedies ﬁled by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. (Attachments: # 1 Exhibit 1 - Decl King)(Rodriguez-Taseff, Lida) Text Modiﬁed on 5/18/2020 (cbr). (Entered: 05/15/2020)

05/15/2020

121 NOTICE of Striking 120 Reply to Response to Motion, ﬁled by Winfred Hill, Alen Blanco, Peter Bernal, Bayardo Cruz, Anthony Swain, Ronniel Flores, Deondre Willis by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis (Rodriguez-Taseff, Lida) (Entered: 05/15/2020)

05/15/2020

122 REPLY to Response to Motion re 116 EMERGENCY MOTION with Certiﬁcation of Emergency included , to Release Plaintiff Anthony Swain On Bail Pending Review of the Class Action Habeas Petition and Incorporated Memorandum Of Law ﬁled by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. (Attachments: # 1 Exhibit 1 - Decl King)(Rodriguez-Taseff, Lida) (Entered: 05/15/2020)

05/17/2020

123 PAPERLESS ORDER. THIS MATTER is before the Court on Plaintiff Anthony Swain's emergency motion for release. 116 . A telephonic status conference is set for tomorrow, May 18, 2020 at 2:00 PM in the Miami Division before Judge Kathleen M. Williams. The Parties shall dial in 5 minutes before the scheduled start of the telephonic hearing. Dial Toll-Free Number: 1-888-684-8852 Access Code: 7369700# Security Code: 1133# Signed by Judge Kathleen M. Williams on 5/18/2020. (jws) (Entered: 05/17/2020)

05/18/2020

124 PAPERLESS Minute Entry for proceedings held before Judge Kathleen M. Williams: Telephone Conference held on 5/18/2020. Counsel or record present. Court Reporter: Patricia Sanders, 305-523-5548 / Patricia_Sanders@ﬂsd.uscourts.gov. (mso) (Entered: 05/18/2020)

05/18/2020

125 REPLY to Response to Motion re 84 MOTION for Leave to File Motion to Convene Three-Judge Panel and to Exceed Page Limit ﬁled by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. (Attachments: # 1 Exhibit 1 - Decl Marinho, # 2 Exhibit 2 - Decl Brown, # 3 Exhibit 3 Decl Benn) (Rodriguez-Taseff, Lida) (Entered: 05/18/2020)

05/18/2020

126 REPLY to Response to Motion re 109 MOTION release of Plaintiff Bayardo Cruz on bail pending the Courts ultimate decision on the class action habeas petition re 1 Complaint,, ﬁled by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. (Rodriguez-Taseff, Lida) (Entered: 05/18/2020)

05/19/2020 127 NOTICE by Daniel Junior, Miami-Dade County, Florida of Filing State Court Criminal Judge's Procedures (Attachments: # 1 Exhibit) (Pastor, Bernard) (Entered: 05/19/2020)

05/22/2020 128 NOTICE by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis re 109 MOTION release of Plaintiff Bayardo Cruz on

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bail pending the Courts ultimate decision on the class action habeas petition re 1 Complaint,, Notice of Mootness (Attachments: # 1 Exhibit 1 - Decl Ragsdale) (RodriguezTaseff, Lida) (Entered: 05/22/2020)
129 Notice of Supplemental Authority re 116 EMERGENCY MOTION with Certiﬁcation of Emergency included , to Release Plaintiff Anthony Swain On Bail Pending Review of the Class Action Habeas Petition and Incorporated Memorandum Of Law by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis (Attachments: # 1 Exhibit 1 - Memorandum Opinion, # 2 Exhibit 2 - Order) (Rodriguez-Taseff, Lida) (Entered: 05/22/2020)
130 PAPERLESS ORDER denying as moot 109 Plaintiffs' Motion for Release. In light of Plaintiffs' notice that Plaintiff Bayardo Cruz is no longer in custody, 128 , his motion for release is DENIED AS MOOT. Signed by Judge Kathleen M. Williams on 5/22/2020. (jws) (Entered: 05/22/2020)
131 TRANSCRIPT of hearing held on 4-6-20 before Judge Kathleen M. Williams, 20 pages, re: 101 Notice of Appeal,, Court Reporter: Patricia Sanders, 305-523-5548 / Patricia_Sanders@ﬂsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/12/2020. Redacted Transcript Deadline set for 6/22/2020. Release of Transcript Restriction set for 8/20/2020. (ps) (Entered: 05/22/2020)
132 TRANSCRIPT of hearing held on 4-7-20 before Judge Kathleen M. Williams, 36 pages, re: 101 Notice of Appeal,, Court Reporter: Patricia Sanders, 305-523-5548 / Patricia_Sanders@ﬂsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/12/2020. Redacted Transcript Deadline set for 6/22/2020. Release of Transcript Restriction set for 8/20/2020. (ps) (Entered: 05/22/2020)
133 TRANSCRIPT of hearing held on 4-14-20 before Judge Kathleen M. Williams, 14 pages, re: 101 Notice of Appeal,, Court Reporter: Patricia Sanders, 305-523-5548 / Patricia_Sanders@ﬂsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/12/2020. Redacted Transcript Deadline set for 6/22/2020. Release of Transcript Restriction set for 8/20/2020. (ps) (Entered: 05/22/2020)
134 TRANSCRIPT of hearing held on 4-27-20 before Judge Kathleen M. Williams, 99 pages, re: 101 Notice of Appeal,, Court Reporter: Patricia Sanders, 305-523-5548 / Patricia_Sanders@ﬂsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/12/2020. Redacted Transcript Deadline set for 6/22/2020. Release of Transcript Restriction set for 8/20/2020. (ps) (Entered: 05/22/2020)
135 TRANSCRIPT of hearing held on 4-28-2020 before Judge Kathleen M. Williams, 53 pages, re: 101 Notice of Appeal,, Court Reporter: Patricia Sanders, 305-523-5548 / Patricia_Sanders@ﬂsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/12/2020. Redacted Transcript Deadline set for 6/22/2020. Release of Transcript Restriction set for 8/20/2020. (ps) (Entered: 05/22/2020)
136 REPLY to Response to Motion re 66 MOTION to Dismiss with Prejudice 1 Complaint,,

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for Failure to Exhaust Administrative Remedies ﬁled by Daniel Junior, Miami-Dade County, Florida. (Viciana, Ana) (Entered: 05/22/2020)
137 TRANSCRIPT of hearing held on 4-13-20 before Judge Kathleen M. Williams, 48 pages, re: 101 Notice of Appeal,, Court Reporter: Patricia Sanders, 305-523-5548 / Patricia_Sanders@ﬂsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/16/2020. Redacted Transcript Deadline set for 6/26/2020. Release of Transcript Restriction set for 8/24/2020. (ps) (Entered: 05/26/2020)
138 TRANSCRIPT of hearing held on 4-17-20 before Judge Kathleen M. Williams, 19 pages, re: 101 Notice of Appeal,, Court Reporter: Patricia Sanders, 305-523-5548 / Patricia_Sanders@ﬂsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/16/2020. Redacted Transcript Deadline set for 6/26/2020. Release of Transcript Restriction set for 8/24/2020. (ps) (Entered: 05/26/2020)
139 MOTION for Entry of Scheduling Order by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. (Rodriguez-Taseff, Lida) (Entered: 05/27/2020)
140 PAPERLESS ORDER denying as moot 139 Plaintiffs' Motion. THIS MATTER is before the Court on Plaintiffs' motion for entry of a scheduling order. 139 . Pursuant to the Court's prior order of referral 21 , the Parties' joint conference report and joint proposed scheduling order was due "WITHIN TWENTY (20) DAYS from the date that the last defendant respond[ed] to the complaint." Thus, the Parties' proposed scheduling order was due May 12, 2020. Upon a review of the record, the Court ORDERS that Plaintiffs' motion is DENIED AS MOOT. Based on the litigation history of this matter, the Court sua sponte extends the deadline. The Parties shall submit a joint conference report and joint proposed scheduling order that complies with the Court's prior order 21 by June 16, 2020. Signed by Judge Kathleen M. Williams on 5/27/2020. (jws) (Entered: 05/27/2020)
141 Unopposed MOTION to Withdraw as Attorney for Plaintiffs by Meena Jagannath for / by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain. Responses due by 6/12/2020 (Attachments: # 1 Text of Proposed Order Proposed Order for Motion to Withdraw of Meena Jagannath as Co-Counsel for Plaintiffs)(Jagannath, Meena) (Entered: 05/29/2020)
142 MOTION for Reconsideration re 130 Order on Motion for Miscellaneous Relief, of Interlocutory Ruling Contained In Injunction Order by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. (Attachments: # 1 Afﬁdavit Supplemental Declaration of Ragsdale)(Rodriguez-Taseff, Lida) (Entered: 06/02/2020)
143 RESPONSE to Motion re 142 MOTION for Reconsideration re 130 Order on Motion for Miscellaneous Relief, of Interlocutory Ruling Contained In Injunction Order [Defendants' Statement of Non-Opposition] ﬁled by Daniel Junior, Miami-Dade County, Florida. Replies due by 6/23/2020. (Vosseler, Zachary) (Entered: 06/16/2020)
144 Statement of: Suggestion of Mootness by Daniel Junior, Miami-Dade County, Florida re 116 EMERGENCY MOTION with Certiﬁcation of Emergency included , to Release Plaintiff Anthony Swain On Bail Pending Review of the Class Action Habeas Petition and Incorporated Memorandum Of Law (Vosseler, Zachary) (Entered: 06/16/2020)
145 Joint SCHEDULING REPORT - Rule 16.1 by Peter Bernal, Alen Blanco, Bayardo Cruz,

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Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis (Attachments: # 1 Text of Proposed Order)(Rodriguez-Taseff, Lida) (Entered: 06/16/2020)
146 PAPERLESS ORDER. THIS MATTER is before the Court on Plaintiff Anthony Swain's emergency motion 116 for release on bail. In light of Defendant's notice 144 stating that Plaintiff was released from Metro West Detention Center to monitored release on June 12, 2020, Plaintiff's motion 116 is DENIED AS MOOT. Signed by Judge Kathleen M. Williams on 6/17/2020. (sgi) (Entered: 06/17/2020)
147 PAPERLESS ORDER. THIS MATTER is before the Court on Plaintiffs' motion for reconsideration 142 . Plaintiffs seek reconsideration of the Court's dismissal of Plaintiff Winfred Hill's claims as moot, as set forth in the Court's Order 100 . Defendants ﬁled a response stating they do not oppose Plaintiffs' motion 143 . Upon review of the record and applicable law, the Court ﬁnds that Mr. Hill's claims on behalf of the class, and the claims of other released Plaintiffs, are not dismissed as moot. Signed by Judge Kathleen M. Williams on 6/17/2020. (sgi) (Entered: 06/17/2020)
148 SCHEDULING ORDER: Jury Trial set for 3/1/2021 in Miami Division before Judge Kathleen M. Williams. Calendar Call set for 2/23/2021 11:00 AM before Judge Kathleen M. Williams. Signed by Judge Kathleen M. Williams on 6/25/2020. See attached document for full details. (cds)

06/30/2020 07/01/2020 07/01/2020 07/07/2020 07/10/2020 07/16/2020 07/17/2020
07/20/2020

Pattern Jury Instruction Builder - To access the latest, up to date changes to the 11th Circuit Pattern Jury Instructions go to https://pji.ca11.uscourts.gov or click here. (Entered: 06/25/2020)
149 MOTION to Expedite Discovery by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. (Attachments: # 1 Exhibit 1 Interrogatories to Defendants, # 2 Exhibit 2 - Request for Production to Defendants) (Rodriguez-Taseff, Lida) (Entered: 06/30/2020)
150 PAPERLESS ORDER. THIS MATTER is before the Court on Plaintiffs' motion 149 for expedited discovery. Defendants shall ﬁle a response to Plaintiffs' motion on or before July 7, 2020. Signed by Judge Kathleen M. Williams on 7/1/2020. (sgi) (Entered: 07/01/2020)
Set/Reset Deadlines/Hearings as to 149 MOTION to Expedite Discovery. Responses due by 7/7/2020 per DE 150 (cbr) (Entered: 07/02/2020)
151 RESPONSE in Opposition re 149 MOTION to Expedite Discovery ﬁled by Daniel Junior, Miami-Dade County, Florida. Replies due by 7/14/2020. (Pastor, Bernard) (Entered: 07/07/2020)
152 ORDER, denying 149 Motion to Expedite. Signed by Judge Kathleen M. Williams on 7/10/2020. See attached document for full details. (mee) (Entered: 07/10/2020)
153 MOTION for Reconsideration re 152 Order on Motion to Expedite by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill. (Rodriguez-Taseff, Lida) (Entered: 07/16/2020)
154 PAPERLESS ORDER. THIS MATTER is before the Court sua sponte. A telephonic status conference is SET for July 24, 2020 at 11:00 AM in the Miami Division before Judge Kathleen M. Williams.The Parties shall dial in 5 minutes before the scheduled start of the telephonic hearing. Dial Toll-Free Number: 1-888-684-8852 Access Code: 7369700# Security Code: 1133# Signed by Judge Kathleen M. Williams on 7/17/2020. (sgi) (Entered: 07/17/2020)
155 PAPERLESS ORDER. THIS MATTER is before the Court sua sponte. The telephonic

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status conference in this matter set for July 24, 2020 154 is CANCELED and RESET to July 27, 2020 at 2:00 PM. The Parties shall dial in 5 minutes before the scheduled start of the telephonic hearing. Dial Toll-Free Number: 1-888-684-8852 Access Code: 7369700# Security Code: 1133# Signed by Judge Kathleen M. Williams on 7/20/2020. (sgi) (Entered: 07/20/2020)
156 PAPERLESS ORDER. THIS MATTER is before the Court sua sponte. The telephonic status conference in this matter set for July 27, 2020 is CANCELED and RESET to July 28, 2020 at 3:00 PM. The Parties shall dial in 5 minutes before the scheduled start of the telephonic hearing. Dial Toll-Free Number: 1-888-684-8852 Access Code: 7369700# Security Code: 1133# Signed by Judge Kathleen M. Williams on 7/20/2020. (sgi) (Entered: 07/20/2020)
157 MOTION Order Requiring Release of Medical Records and HIPAA Qualiﬁed Protective Order by Daniel Junior, Miami-Dade County, Florida. (Attachments: # 1 Text of Proposed Order)(Pastor, Bernard) (Entered: 07/27/2020)
158 Unopposed MOTION for Extension of Time to ﬁle joint notice scheduling mediation re 148 Scheduling Order,, by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. Responses due by 8/11/2020 (Attachments: # 1 Text of Proposed Order)(Rodriguez-Taseff, Lida) (Entered: 07/28/2020)
159 PAPERLESS ORDER granting 158 Motion for Extension of Time. The Parties shall ﬁle their joint notice scheduling mediation as set forth in the Court's order 148 on or before July 30, 2020. Signed by Judge Kathleen M. Williams on 7/28/2020. (sgi) (Entered: 07/28/2020)
160 PAPERLESS Minute Entry for proceedings held before Judge Kathleen M. Williams: Telephone Status Conference held on 7/28/2020. Counsel of record present. Court Reporter: Patricia Sanders, 305-523-5548 / Patricia_Sanders@ﬂsd.uscourts.gov. (mso) (Entered: 07/28/2020)
161 PAPERLESS ORDER. THIS MATTER is before the Court following the July 28, 2020 telephonic hearing. Plaintiffs' motion for reconsideration 153 is DENIED with leave to readdress interrogatory request number 3 and production of videos after consultation with opposing counsel, as stated during the hearing. Additionally, the Parties shall advise the Court by 3:00 PM, July 31, 2020, whether they have reached a full or partial resolution of Defendants' motion 157 , and what, if any, issues (including the interrogatory 3 and video production matter) remain pending. Signed by Judge Kathleen M. Williams on 7/28/2020. (sgi) (Entered: 07/28/2020)
162 Unopposed EXPEDITED MOTION for Stay and to Continue All Deadlines re 148 Scheduling Order,, by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. (Attachments: # 1 Text of Proposed Order) (Rodriguez-Taseff, Lida) (Entered: 07/30/2020)
163 PAPERLESS ORDER GRANTING MOTION TO STAY 162 AND STAYING CASE. THIS MATTER is before the Court on Plaintiffs' unopposed motion to stay this matter. Plaintiffs' motion 162 is GRANTED. This matter is STAYED for 45 days. On or before September 14, 2020, the Parties shall ﬁle a status report indicating whether there has been full or partial resolution on all discovery disputes, including Defendants' motion requiring release of medical records 157 . Signed by Judge Kathleen M. Williams on 7/30/2020. (sgi) (Entered: 07/30/2020)
164 PAPERLESS ORDER granting 141 Unopposed Motion to Withdraw as Attorney. Meena Jagannath representing Plaintiffs is withdrawn from this case. Signed by Judge Kathleen

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M. Williams on 8/5/2020. (sgi) (Entered: 08/05/2020)
165 Unopposed MOTION to Stay re 163 Order Staying Case,,, Terminate Motions,, by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis. Responses due by 9/23/2020 (Attachments: # 1 Text of Proposed Order) (Rodriguez-Taseff, Lida) (Entered: 09/09/2020)
166 PAPERLESS ORDER granting 165 Motion to Extend Stay. Plaintiffs' unopposed motion to extend the stay in this matter is GRANTED. The stay in this matter is extended to September 30, 2020. The Parties shall ﬁle a status report on or before September 30, 2020, identifying the issues, if any, that remain to be resolved. Signed by Judge Kathleen M. Williams on 9/9/2020. (sgi) (Entered: 09/09/2020)
Set/Reset Deadlines/Hearings Status Report due by 9/30/2020. per DE 166 (cbr) (Entered: 09/10/2020)
167 NOTICE of Voluntary Dismissal Without Prejudice by Peter Bernal, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Anthony Swain, Deondre Willis (RodriguezTaseff, Lida) (Entered: 09/28/2020)
168 PAPERLESS ORDER DISMISSING CASE. THIS MATTER is before the Court on Plaintiffs' notice of voluntary dismissal without prejudice. 167 . Upon review of the notice and the record, the Court ORDERS AND ADJUDGES that this action is DISMISSED WITHOUT PREJUDICE. All deadlines and hearings are CANCELED. All pending motions are DENIED AS MOOT. This case is CLOSED. Signed by Judge Kathleen M. Williams on 9/29/2020. (sgi) (Entered: 09/29/2020)
169 MANDATE of USCA, VACATED AND REMANDED. After considering the merits, and with the beneﬁt of outstanding written briefs and oral arguments, we now conclude that the district court erred in issuing the injunction. Accordingly, we vacate the injunction and remand the case to the district court (see order for details) as to 101 Notice of Appeal, ﬁled by Daniel Junior, Miami-Dade County, Florida, Date Issued: 10/14/20 ; USCA Case Number: 20-11622-CC (hh) (Entered: 10/15/2020)

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 Case 1:20-cv-21457-KMW Document 1 Entered on FLSD Docket 04/05/2020 Page 1 of 46

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

ANTHONY SWAIN; ALEN BLANCO; BAYARDO CRUZ; RONNIEL FLORES; WINFRED HILL; DEONDRE WILLIS; PETER BERNAL, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
DANIEL JUNIOR, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department; MIAMIDADE COUNTY, FLORIDA,
Defendants.

Case No. 1:20-cv-21457 Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief Class Action
IMMEDIATE RELIEF SOUGHT

CLASS ACTION COMPLAINT 1. Jails and prisons are rapidly becoming the epicenter of this country’s fight against the novel coronavirus and its resulting disease, COVID-19. The rate at which this disease is ravaging the globe is unprecedented in modern society, and an outbreak in Miami-Dade County’s jails will cause death and devastation to countless lives, including the people jailed, the people who work in the jail, and their families. Understanding the need for immediate action to slow the spread of this virus and to protect public health, medical experts have urged sweeping protective measures in everyday life. Yet the very steps they deem necessary—such as social distancing, regular handwashing, adequately cleaning their surroundings, access to testing, prompt medical attention, and wearing protective gear—have been made impossible for the people jailed in the Metro West Detention Center by the very officials responsible for their well-being.
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2. Given reports that at least fifteen County jail employees have already tested positive for COVID-19,1 an outbreak in the County’s jails is imminent. However, the County and the officials responsible for operating the Metro West Detention Center (“Metro West”) have failed to respond to the obvious and urgent threats posed by this growing pandemic. The over 1,800 people jailed at Metro West are forced to suffer unconstitutional conditions that deny them the precautions and protections necessary to mitigate against the risks of COVID-19.
3. In contradiction to public claims by the jail, the human beings confined inside the jail do not have adequate soap, have no safe way to dry their hands, sleep within one to two feet of one another, must wait days to seek medical attention, share with dozens of other people hightouch surfaces that are infrequently cleaned, and are denied basic hygienic supplies such as laundry detergent, cleaning supplies, or tissues. Disregarding known, obvious risks of illness and death and needlessly exposing people to a highly fatal infectious disease violates the Eighth and Fourteenth Amendment rights of the people jailed at Metro West. This indifference also puts the broader community at risk from the creation of a site of widespread contagion.
4. People confined in jails and prisons must “be furnished with the basic human needs, one of which is ‘reasonable safety.’” Helling v. McKinney, 509 U.S. 25, 33-34 (1993) (citations omitted). Yet Plaintiffs, as well as the class and subclass they represent, all face imminent risk of serious injury or death due to COVID-19 at Metro West. In the midst of a public health crisis, the people confined at Metro West have not been provided adequate safeguards against the severe threat of the coronavirus. They ask to be treated humanely while they are in Miami-Dade County’s custody during this perilous time.

1 David Ovalle, Behind bars, in tight quarters, Miami inmates and officers alike dread coronavirus

spread,

Miami

Herald

(Apr.

4,

2020),

https://amp.miamiherald.com/news/local/crime/article241740576.html.

2

Case 1:20-cv-21457-KMW Document 1 Entered on FLSD Docket 04/05/2020 Page 3 of 46
5. Because of the ongoing, systemic violations of Petitioners/Plaintiffs’ constitutional rights, Petitioners/Plaintiffs seek class-wide relief requiring Defendants to take basic and necessary steps to safeguard the health of people who, due to the nature of their confinement, are not only at heightened risk of infection and death but are also rendered unable to take the simple steps to protect themselves that have become a necessary part of everyday life for those people not in jail. Petitioners/Plaintiffs further request a writ of habeas corpus for all those who are medically vulnerable and at particularly grave risk of infection and death from COVID-19.
JURISDICTION AND VENUE 6. This is a civil rights action arising under 42 U.S.C. § 1983, 22 U.S.C. § 2241, and 28 U.S.C. § 2201, et seq., as well as the Eighth and Fourteenth Amendments to the United States Constitution. 7. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343, 28 U.S.C. § 2241, and 28 U.S.C. § 1651. 8. Venue is proper pursuant to 28 U.S.C. § 1391 because a substantial part of the events and omissions giving rise to these claims occurred and continue to occur in this district.
PARTIES 9. Petitioner/Plaintiff Anthony Swain is a forty-three year-old man who currently resides in Miami-Dade County, Florida. At all times relevant to this Complaint, Mr. Swain was in the custody of Miami Dade Corrections and Rehabilitation (“MDCR”) at Metro West. He has cystic myelomalacia from the C3 to C6 vertebrae, which causes respiratory issues and difficulty breathing, and is a paraplegic. He is awaiting trial and is presumptively innocent. 10. Petitioner/Plaintiff Alen Blanco is a thirty-nine year-old man who currently resides in Miami-Dade County, Florida. At all times relevant to this Complaint, Mr. Blanco was in MDCR
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Case 1:20-cv-21457-KMW Document 1 Entered on FLSD Docket 04/05/2020 Page 4 of 46
custody at Metro West. He has had severe asthma since birth. He is awaiting trial and is presumptively innocent.
11. Petitioner/Plaintiff Bayardo Cruz is a thirty year-old man who currently resides in Miami-Dade County, Florida. At all times relevant to this Complaint, Mr. Cruz was in MDCR custody at Metro West. He has asthma and chronic bronchitis. He is awaiting trial and is presumptively innocent.
12. Petitioner/Plaintiff Ronniel Flores is a twenty-three year-old man who currently resides in Miami-Dade County, Florida. At all times relevant to this Complaint, Mr. Flores was in MDCR custody at Metro West. He has Type 1 diabetes, with blood sugar that has been spiking to more than 600 while in the jail. He is awaiting trial and is presumptively innocent.
13. Petitioner/Plaintiff Winfred Hill is a fifty-nine year-old man who currently resides in Miami-Dade County, Florida. At all times relevant to this Complaint, Mr. Hill was in MDCR custody at Metro West. He is HIV positive and also has diabetes. He is awaiting trial and is presumptively innocent.
14. Petitioner/Plaintiff Deondre Willis is a twenty-four year-old man who currently resides in Miami-Dade County, Florida. At all times relevant to this Complaint, Mr. Willis was in MDCR custody at Metro West. He has epilepsy and has had over twenty seizures in jail over a fifteen-month period. He is awaiting trial and is presumptively innocent.
15. Petitioner/Plaintiff Peter Bernal is a thirty-five year-old man who currently resides in Miami-Dade County, Florida. At all times relevant to this Complaint, Mr. Bernal was in the custody of MDCR at Metro West. He suffers from chronic asthma, which causes severe respiratory problems. He is confined in the jail because he does not have enough cash to pay the financial condition of his pretrial release.
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16. Defendant Daniel Junior is the Director of the Miami-Dade Department of Corrections and Rehabilitation and is being sued in his official capacity. As the Director, Defendant Junior has custody of all people incarcerated in MDCR facilities, including Metro West, and is responsible for developing, administering, and enforcing MDCR policies, including those that relate to health and safety.
17. Defendant Miami-Dade County is a political subdivision of the State of Florida that can be sued in its own name. Miami-Dade County is responsible for the acts of MDCR, an administrative department of Miami-Dade County that operates the County’s jails, including Metro West. MDCR is responsible for the custody and care of all persons detained or incarcerated in the County’s jails, and it currently has immediate custody over Petitioners/Plaintiffs and other putative class members.
THE GRAVE RISK OF HARM POSED BY THE COVID-19 PANDEMIC REQUIRES AN EMERGENCY RESPONSE
18. We are in the midst of an unprecedented global health emergency.2 On March 11, 2020, the World Health Organization declared the outbreak of COVID-19 a global pandemic.3 Citing “deep[] concern[] both by the alarming levels of spread and severity, and by the alarming levels of inaction,” it called for countries to take “urgent and aggressive action.”4
19. The number of people infected by COVID-19 is growing exponentially.5 On
2 See World Health Organization, Director-General Opening Remarks (March 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-mediabriefing-on-covid-19---11-march-2020. 3 Id. 4 Id.; see also Coronavirus: COVID-19 Is Now Officially A Pandemic, WHO Says, NPR (March 11, 2020), https://www.npr.org/sections/goatsandsoda/2020/03/11/814474930/coronavirus-covid19-is-now-officially-a-pandemic-who-says. 5 The death toll in Italy, which began experiencing this epidemic about a week earlier than the first diagnosed American case, saw a rise of 30% overnight in the 24 hours between March 5, 2020,
5

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January 1, 2020, the first confirmed COVID-19 case was diagnosed in the United States.6 As of April 4, 2020, 277,205 people have been diagnosed with COVID-19 in the United States, with 6,593 deaths confirmed.7 Nationally, CDC projections indicate that over 200 million individuals in the United States could be infected with COVID-19 over the course of the epidemic without effective public health intervention,8 with as many as 2.2 million deaths in the worst projections.9
20. COVID-19 is highly contagious. The virus is thought to spread through respiratory droplets or by touching a surface or object that has the virus on it.10 COVID-19 is thought to survive for three hours in the air in droplet form, up to twenty-four hours on cardboard, up to two days on plastic, and up to three days on steel.11
21. Infected people—who may be asymptomatic and not even know they are infected—

and March 6, 2020 and a rise of 25% on March 15 alone—a day that killed 368 people in Italy. Crispian Balmer & Angelo Amante, Italy coronavirus deaths near 200 after biggest daily jump, Reuters (Mar. 6, 2020), https://www.reuters.com/article/us-health-coronavirus-italy/italycoronavirus-deaths-near-200-after-biggest-daily-jump-idUSKBN20T2ML.
6 Derrick Bryson Taylor, A Timeline of the Coronavirus, New York Times (Mar. 2020), https://www.nytimes.com/article/coronavirus-timeline.html (last visited March 24, 2020).

7 Coronavirus 2019, Centers for Disease Control, https://www.cdc.gov/coronavirus/2019ncov/cases-in-us.html (last visited Apr. 4, 2020).

8 James Glanz, et al., Coronavirus Could Overwhelm U.S. without Urgent Action, Estimates Say,

N.Y.

Times

(Mar.

20,

2020),

available

at

https://www.nytimes.com/interactive/2020/03/20/us/coronavirus-model-us-outbreak.html.

9 Holly Yan, More than 3,000 people in the US have died from coronavirus, CNN (last updated: Mar. 31, 2020), https://www.cnn.com/2020/03/30/health/us-coronavirus-updatesmonday/index.html.

10 Coronavirus Factsheet, Centers for Disease Control (Mar. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/2019-ncov-factsheet.pdf.

11 Neeltje van Doremalen et al., Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1, NEW ENGLAND J. MEDICINE (March 17, 2020), https://www.nejm.org/doi/full/10.1056/NEJMc2004973.

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Case 1:20-cv-21457-KMW Document 1 Entered on FLSD Docket 04/05/2020 Page 7 of 46
can spread the disease even through indirect contact with others.12 Given that many people are asymptomatic transmitters and very few people have been tested,13 the number of people diagnosed with COVID-19 reflects only a small portion of those infected.14
22. Everyone is at risk of contracting the novel coronavirus disease, but certain populations are at higher risk for severe illness from COVID-19. People of any age with lung disease or other conditions like asthma, chronic liver or kidney disease, diabetes, epilepsy, hypertension, compromised immune systems, blood disorders, inherited metabolic disorders, stroke, and pregnancy face increased risk of serious COVID-19 disease.15 Older individuals also face greater chances of serious illness or death from COVID-19.16 For people over the age of 50 or with medical conditions that increase the risk of serious COVID-19 infection, symptoms such

12 See, e.g., Marilynn Marchione/AP, Novel Coronavirus Can Live on Some Surfaces for Up to 3 Days, New Tests Show. TIME, (Mar. 11, 2020), https://time.com/5801278/coronavirus-stays-on-surfaces-daystests/; Cai J, Sun W, Huang J, Gamber M, Wu J, He G. Indirect virus transmission in cluster of COVID-19 cases, Wenzhou, China, 2020. 26 Emerg Infect Dis. 6, (2020), https://doi.org/10.3201/eid2606.200412 (last visited Mar. 20, 2020).

13 Roni Caryn Rabin, They Were Infected with the Coronavirus. They Never Showed Signs, N.Y.

Times

(Feb.

26,

2020,

updated

Mar.

6,

2020),

https://www.nytimes.com/2020/02/26/health/coronavirus-asymptomatic.html; Aria Bendix, A

Person Can Carry And Transmit COVID-19 Without Showing Symptoms, Scientists Confirm, Bus.

Insider (Feb. 24, 2020), https://www.sciencealert.com/researchers-confirmed-patients-can-

transmit-the-coronavirus-without-showing-symptoms.

14 Melissa Healy, True Number of US Coronavirus Cases is Far Above Official Tally, Scientists Say, L.A. Times (Mar. 10, 2020), https://www.msn.com/en-us/health/medical/true-number-of-uscoronavirus-cases-is-far-above-official-tally-scientists-say/ar-BB110qoA.

15 Ex. 1, Expert Declaration of Dr. Jonathan Golob ¶ 4, ECF Doc. 5, Dawson v. Asher, Case No. 2:20-cv-00409-JLR-MAT (D. Or. Filed March 16, 2020).

16 Golob Decl. ¶ 3; Xianxian Zhao, et al., Incidence, clinical characteristics and prognostic factor of patients with COVID-19: a systematic review and meta-analysis (March 20, 2020), https://cutt.ly/etRAkmt.

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Case 1:20-cv-21457-KMW Document 1 Entered on FLSD Docket 04/05/2020 Page 8 of 46
as fever, coughing, and shortness of breath can be especially severe.17 23. COVID-19 can severely damage lung tissue (sometimes leading to a permanent
loss of respiratory capacity), lead to acute respiratory distress syndrome, affect cardiac functions (including the possibility of heart failure), and cause widespread damage to other organs.18 Emerging evidence also suggests that COVID-19 can trigger an over-response in the immune system and further damage the body’s tissues or organs, including permanent harm to the kidneys or neurologic injury.19
24. The experiences of those infected with COVID-19 are “a lot more frightening” than the flu.20 The sensation of acute respiratory distress syndrome has been compared to “essentially drowning in [one’s] own blood.”21 Even relatively young people with minimal health history can be “wiped out” by the virus, “like they’ve been hit by a truck,” and people who are infected by the virus can “all of a sudden” go into complete respiratory failure.22
25. These complications can manifest at an alarming pace, and the required levels of support can quickly exceed local health care resources.23 Patients with serious cases of COVID-
17 Golob Decl. ¶ 5; see also Ex. 15, Declaration of Dr. Carlos Franco Paredes, Fraihat, et al. v. U.S. Immigration and Customs Enforcement, ECF Doc. 81-12, 5:19-cv-01546-JGB-SHK (E.D. Cal., filed Mar. 24, 2020) (outlining the heightened risk of severe harm or death for those populations deemed medically vulnerable to COVID-19, including higher fatality rates, severe damage to organs and other capacities, and the need for advanced support). 18 Golob Decl. ¶ 7. 19 Golob Decl. ¶ 7. 20 Lizzie Presser, A Medical Worker Describes Terrifying Lung Failure From COVID-19 — Even in His Young Patients, Propublica (Mar. 21, 2020), https://www.propublica.org/article/a-medicalworker-describes--terrifying-lung-failure-from-covid19-even-in-his-young-patients. 21 Id. 22 Id. 23 Golob Decl. ¶ 6.
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19 will need advanced medical support requiring highly specialized equipment that is in limited supply, such as ventilator or oxygenation assistance, as well as an entire team of care providers that can include 1:1 nurse-to-patient ratios, respiratory therapists, and intensive care physicians.24
26. The current estimated incubation period is between 2 and 14 days.25 Approximately 20% of people infected experience life-threatening complications, and of those infected, between 1% and 3.4% die.26 According to recent estimates, the fatality of people infected with the coronavirus is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems.27 Patients who do not die from serious cases of COVID19 may face prolonged recovery periods, including extensive rehabilitation from neurologic damage and loss of respiratory capacity.28
27. There is neither a vaccine nor any known medication to prevent or cure infection from the virus.29 A vaccine is likely at least 12 months away.30
28. The only known effective measure to reduce the risk of severe illness or death to
24 Golob Decl. ¶¶ 5-6. 25 Coronavirus Disease COVID-19 Symptoms, Centers for Disease Control (updated: Feb. 29 2020), https://www.cdc.gov/coronavirus/2019-ncov/about/symptoms.html. 26 Why Covid-19 is worse than the flu, in one chart, Vox (Mar. 18, 2020), https://www.vox.com/science-and-health/2020/3/18/21184992/coronavirus-covid-19-flucomparison-chart. 27 Betsy McKay, Coronavirus vs. Flu Which Virus is Deadlier, WALL ST. J. (Mar. 10, 2020), https://www.wsj.com/articles/coronavirus-vs-flu-which-virus-is-deadlier-11583856879. 28 Golob Decl. ¶ 4. 29 Golob Decl. ¶ 8. 30 Saralyn Cruickshank, Experts Discuss Covid-19 and Ways to Prevent Spread of Disease, John Hopkins Mag. (Mar. 17, 2020), https://hub.jhu.edu/2020/03/17/coronavirus-virology-vaccinesocial-distancing-update.
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individuals is to prevent them from being infected with the coronavirus in the first place.31
Accordingly, officials and experts urge “social distancing”—isolating oneself from other people
as much as possible.32 For this reason, governors and mayors across the country are ordering entire
cities and states to “shelter in place” and “stay at home.”33 Other federally recommended
precautions include frequent hand-washing, alcohol-based hand sanitizers, and frequent cleaning
and disinfecting of any surfaces touched by any person.34
INCARCERATED PEOPLE AND CORRECTIONAL STAFF ARE AT HEIGHTENED RISK DURING THE COVID-19 PANDEMIC
29. Substantial epidemiological research “shows that mass incarceration raises
contagion rates for infectious disease—both for people in jails, and for the community at large.”35
31 Golob Decl. ¶ 8. 32 Given COVID-19’s contagiousness and relatively high death rate, particularly in vulnerable populations, the President ordered a 15-day directive to avoid gatherings in groups of more than 10 people. The President’s Coronavirus Guidelines for America, Whitehouse.gov (Mar. 16, 2020), https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirusguidance_8.5x11_315PM.pdf. See also Saralyn Cruickshank, Experts Discuss Covid-19 and Ways to Prevent Spread of Disease, John Hopkins Mag. (Mar. 17, 2020), https://hub.jhu.edu/2020/03/17/coronavirus-virology-vaccine-social-distancing-update. 33 The governors of California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Vermont, Washington, West Virginia, and Wisconsin, as well as local officials of numerous counties in Florida, Georgia, Kansas, Missouri, North Carolina, Pennsylvania, Tennessee, and Texas, have all ordered residents to “shelter in place” or stay at home. See Which States and Cities Have Told Residents to Stay at Home, N.Y. Times (Mar. 27, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-homeorder.html. 34 Centers for Disease Control, Steps to Prevent Illness, available at https://www.cdc.gov/coronavirus/2019ncov/about/prevention.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronaviru s%2F2019-ncov%2Fabout%2Fprevention-treatment.html; see also Saralyn Cruickshank, Experts Discuss Covid-19 and Ways to Prevent Spread of Disease, John Hopkins Mag. (Mar. 17, 2020), https://hub.jhu.edu/2020/03/17/coronavirus-virology-vaccine-social-distancing-update. 35 Sandhya Kajeepeta & Seth J. Prins, Why Coronavirus in Jails Should Concern All of Us, The Appeal (Mar. 24, 2020), https://theappeal.org/coronavirus-jails-public-health/.
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During pandemics, jail facilities become “ticking time bombs” as “[m]any people crowded
together, often suffering from diseases that weaken their immune systems, form a potential breeding ground and reservoir for diseases.”36
30. According to Dr. Jaimie Meyer, an expert in public health in jails and prisons:
“[T]he risk posed by COVID-19 in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected.”37
This is due to a number of factors, including:
a. The close proximity of individuals in those facilities;
b. Their reduced ability to protect themselves through social distancing;
c. The lack of necessary medical and hygiene supplies ranging from hot water, soap or hand sanitizer, to protective equipment;
d. Ventilation systems that encourage the spread of airborne diseases;
e. Difficulties quarantining individuals who become ill;
f. The enhanced susceptibility of the population in jails and prisons due to chronic health conditions;
g. The fact that incarcerated people, rather than professional cleaners, are often responsible for cleaning the facilities and are not given appropriate supplies;
h. The fact that jails and prisons normally have to rely heavily on outside hospitals that will become unavailable during a pandemic, as well as the loss of both medical and correctional staff to illness.38
36 See St. Louis Univ., “Ticking Time Bomb,” Prisons Unprepared For Flu Pandemic, ScienceDaily (2006), https://www.sciencedaily.com/releases/2006/09/060915012301.htm. 37 Ex. 2, Expert Declaration of Dr. Jaimie Meyer ¶ 7, ECF Doc. 42, Velesaca v. Wolf, Case No. 1:20-cv-01803-AKH (S.D.N.Y. Mar. 16, 2020). 38 See Meyer Decl. ¶¶ 7-19; “The pathway for transmission of pandemic influenza between jails and the community is a two-way street. Jails process millions of bookings per year. Infected individuals coming from the community may be housed with healthy inmates and will come into contact with correctional officers, which can spread infection throughout a facility.” Pandemic Influenza & Jail Facilities & Populations, Am. J. of Pub. Health, October 2009; See also Dr. Anne Spaulding, Coronavirus and the Correctional Facility: for Correctional Staff Leadership, Mar. 9,
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31. Additional reasons for the increased risk of transmission and infection include the constant cycling of people in and out of the jail (including correctional staff)39 and inadequate medical care within the jail itself.
32. And jail screening procedures are ineffective. COVID-19 poses a particular threat to public health because a person can be asymptomatic yet spread the disease to others. Most people do not show symptoms for two to fourteen days while being contagious. Others never exhibit any symptoms at all. Thus, while screening for fevers and other symptoms associated with COVID-19 may stop some infected people from entering, it cannot catch many of those actively spreading the virus. The drastic social distancing measures that have been imposed across the country are designed to combat exactly this problem—staying at home, we are able to limit our contact with other persons, even the asymptomatic. But every day hundreds of jail employees, working on multiple different shifts, travel into and out of the jail. Any one of those employees can be asymptomatically carrying and transmitting COVID-19, and the jail has no means of stopping this disease vector.
33. The guidance from the Centers for Disease Control and Prevention (“CDC”) for correctional and detention facilities, including local jails, was published on March 23, 2020.40 The guidance acknowledges that incarcerated people are forced to exist “within congregate

2020,

available

at

https://www.ncchc.org/filebin/news/COVID_for_CF_Administrators_3.9.2020.pdf.

39 See Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020), https://www.prisonpolicy.org/blog/2020/03/06/pandemic.

40 Ex. 3, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control and Prevention (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html.

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Case 1:20-cv-21457-KMW Document 1 Entered on FLSD Docket 04/05/2020 Page 13 of 46
environments” that “heighten[] the potential for COVID-19 to spread once introduced,” especially
given that “[t]here are many opportunities for COVID-19 to be introduced into a correctional or
detention facility,” including “daily staff ingress and egress” as well as “high turnover” of
“admit[ted] new entrants.”41 In light of these concerns, the guidance recommends that the
correctional facility:
a. Post signage throughout the facility communicating COVID-19 symptoms and hand hygiene instructions, ensure such signage is understandable for non-English speaking people as well as those with low literacy, and provide clear information about the presence of COVID-19 cases within a facility and the need to increase social distancing and maintain hygiene precautions;
b. Ensure sufficient stocks of hygiene and cleaning supplies, including tissues; liquid soap where possible; hand drying supplies; alcohol-based hand sanitizer; cleaning supplies effective against the coronavirus; and recommended personal protective equipment like face masks, disposable medical gloves, and N95 respirators;
c. Provide incarcerated people no-cost access to soap (providing liquid soap where possible), running water, hand drying machines or disposable paper towels for hand washing, and tissues (providing no-touch trash receptacles for disposal);
d. Consider relaxing restrictions on allowing alcohol-based hand sanitizer where security concerns allow;
e. Provide a no-cost supply of soap sufficient to allow frequent hand washing, providing liquid soap where possible;
f. Suspend co-pays for incarcerated people seeking medical evaluation for respiratory symptoms;
g. Even if COVID-19 cases have not been identified locally or inside, implement “intensified cleaning and disinfecting procedures” that clean and disinfect high-touch surfaces and objects “[s]everal times per day,” and ensure adequate supplies to support intensified cleaning and disinfection practices”;
h. Perform pre-intake screening and temperature checks for all new entrants.
41 Id.
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i. If an individual has symptoms of COVID-19 (fever, cough, shortness of breath), require the individual to wear a face mask and place her under medical isolation;
j. Implement social distancing strategies to increase the physical space between incarcerated people, ideally a distance of six feet “regardless of the presence of symptoms”; and
k. Implement daily temperature checks in housing units where COVID-19 cases have been identified.
34. Correctional officials around the country agree that particular care must be taken to
stop the spread of COVID-19 within the nation’s jails. For example, Leann Bertsch, the Director
of the North Dakota Department of Corrections and Rehabilitation, concluded that “ignoring the
health of those living and working inside the walls of our nation’s correctional facilities poses a
grave threat to us all” and that “putting public health first is the best, and only, way to effectively achieve [a department of correction’s] public safety mission during the COVID-19 pandemic.”42
35. The global path of the virus confirms that jails and prisons are epicenters for
transmission. Approximately one month into the pandemic in the province of Hubei, China, over half of reported COVID-19 cases were from jails.43 In South Korea, which has had tremendous
success in slowing and stopping the spread of the virus, “the single largest COVID-19 outbreak
and mortality cluster was from the Daenam Prison Hospital, where 101 inmates were infected and seven died.”44

42 Brie Williams and Leanne Bertsch, A public health doctor and head of corrections agree: we must immediately release people from jails and prisons, The Appeal (Mar. 27, 2020), https://theappeal.org/a-public-health-doctor-and-head-of-corrections-agree-we-mustimmediately-release-people-from-jails-and-prisons/.

43 Zi Yang, Cracks in the System: COVID-19 in Chinese Prisons, Diplomat (Mar. 9, 2020), https://thediplomat.com/2020/03/cracks-in-the-system-covid-19-in-chinese-prisons/.

44 Nancy Gertner & John Reinstein, Compassionate Release Now for Prisoners Vulnerable to the

Coronavirus,

Boston

Globe

(Mar.

23,

2020),

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36. The coronavirus has already started to spread inside other prisons, jails, and detention centers in the United States. Experts predict that a mass contagion is only a matter of time and that “[a]ll prisons and jails should anticipate that the coronavirus will enter their facility.”45
37. Once the virus enters a jail or prison, infection rates are much higher than in the broader community. In New York City, for example, the COVID-19 infection rate in the city’s jails is about eight times higher than the rest of the city, which already sits at one of the highest rates in the world.46 The first case of COVID-19 on Rikers Island, New York City’s largest jail complex, was confirmed on March 18, 2020.47 By Thursday, April 2, 2020, 231 people incarcerated at Rikers as well as 223 jail staff had tested positive;48 two jail officers have died; and more than 800 incarcerated people were held in isolation or quarantined.49 The dramatic outbreak

https://www.bostonglobe.com/2020/03/23/opinion/compassionate-release-now-prisonersvulnerable-coronavirus/.

45 Evelyn Cheng & Huileng Tan, China Says More than 500 Cases of the New Coronavirus Stemmed from Prisons, CNBC, (Feb. 20, 2020), available at https://www.cnbc.com/2020/02/21/coronavirus-china-says-twoprisons-reported-nearly-250cases.html (quoting Tyler Winkelman, co-director of the Health, Homelessness, and Criminal Justice Lab at the Hennepin Healthcare Research Institute in Minneapolis).

46 COVID-19 Infection Tracking in NYC Jails, The Legal Aid Society NYC (last visited Mar. 28, 2020), https://www.legalaidnyc.org/covid-19-infection-tracking-in-nyc-jails/.

47 21 Inmates, 17 Employees Test Positive for COVID-19 on Rikers Island: Officials, NBC New York (Last updated: Mar. 22, 2020), https://www.nbcnewyork.com/news/coronavirus/21-inmates17-employees-test-positive-for-covid-19-on-rikers-island-officials/2338242/

48 Julia Craven, Coronavirus Cases Are Spreading Rapidly on Rikers Island, Slate (Apr. 2, 2020) https://slate.com/news-and-politics/2020/04/rikers-coronavirus-cases-increase.html.

49 Jay Ransom and Alan Feuer, ‘We’re Left for Dead’: Fears of Virus Catastrophe at Rikers Jail,

N.Y.

Times

(Last

updated:

Mar.

31,

2020),

https://www.nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html.

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Case 1:20-cv-21457-KMW Document 1 Entered on FLSD Docket 04/05/2020 Page 16 of 46
of COVID-19 in the Cook County Jail is also illustrative.50
38. For this reason, medical and public health experts have urged emergency action to
fight the spread of COVID-19 in jails and other carceral facilities, including decarceration, improved access to medical care, and compliance with CDC guidelines.51 Medical experts explain
that the need for action is urgent given that “[t]he window of opportunity is rapidly narrowing for
mitigation of COVID-19” — outbreaks are measured “in a matter of days, not weeks,” with this type of novel virus.52
39. Medical experts have also explained that urgent action in the jails is an essential
public health priority given that any outbreaks will place incredible strain on regional hospitals
and health centers. These institutions would bear the brunt of having to treat all infected people
and would have fewer resources available to treat anyone who required medical attention, which will be disastrous when medical needs overwhelm the institutions’ resources.53 Experts, like Dr.
50 Cook County Jail Coronavirus Tracker, Injustice Watch (last visited: Apr. 4, 2020), https://datastudio.google.com/reporting/1AI4THiXJ_6Nt9NXwE0MfO_DUaa1Koxi/page/hcyJB?s=oQGghs5nYPk (210 incarcerated people and 60 people working in the jail tested positive for COVID-19 as of April 3, 2020). 51 See, e.g., Ex. 4, Brad Lander, Doctors in NYC Hospitals, Jails, and Shelters Call on the City to Take More Aggressive Action to Combat the Spread of Coronavirus, Medium (Mar. 12, 2020), https://medium.com/@bradlander/doctors-in-nyc-hospitals-jails-and-shelters-call-on-the-city-totake-more-aggressive-action-to-fb75f0b131c2; Ex. 5, Letter from Johns Hopkins faculty to Governor Hogan, Mar. 25, 2020, https://bioethics.jhu.edu/wp-content/uploads/2019/10/JohnsHopkins-faculty-letter-on-COVID-19-jails-and-prisons.pdf; Ex. 6, Declaration of Marc Stern ¶ 11, ECF Doc. 6, Dawson v. Asher, Case No. 2:20-cv-00409-JLR-MAT (D. Or. Filed March 16, 2020); Ex. 7, Declaration of Dr. Ranit Mishori ¶ 46, ECF Doc. 2-3, Coreas v. Bounds, et al., Case No. 8:20-cv-00780 (D. Md., filed March 24, 2020); Ex. 8, Declaration of Robert B. Greifinger ¶ 13, ECF Doc. 4, Dawson v. Asher, Case No. 2:20-cv-00409-JLR-MAT (D. Or., filed March 16, 2020). 52 Mishori Decl. ¶ 46, supra note 51. 53 See Meyer Decl. ¶¶ 16, 22, supra note 37; Ex. 9, Expert Declaration of Elizabeth Y. Chaio ¶ 28, Russell, et al. v. Harris County, Texas, No. 4:19-cv-00226, ECF Doc. 32-2 (S.D. Tex. Mar. 27, 2020).
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Meyer, make clear that “[r]educing the size of the population in jails and prisons is crucially

important to reducing the level of risk both for those within those facilities and for the community

at large.”54 40.

Numerous public health experts, including Dr. Gregg Gonsalves,55 Ross

MacDonald,56 Dr. Marc Stern,57 Dr. Oluwadamilola T. Oladeru and Adam Beckman,58 Dr. Anne

Spaulding,59 Homer Venters,60 and Josiah Rich61 have all strongly cautioned that people booked

into and held in jails are likely to face serious, even grave, harm due to the outbreak of COVID-

19.

41. Given this urgency, jails and prisons nationwide have released people with the aim

of preventing community outbreaks of severe illness and death from COVID-19. States and

counties that have released people from incarceration in response to the COVID-19 crisis include,

54 Meyer Decl. ¶ 37, supra note 37. 55 Kelan Lyons, Elderly Prison Population Vulnerable to Potential Coronavirus Outbreak, Connecticut Mirror (March 11, 2020), https://cutt.ly/BtRSxCF. 56Craig McCarthy and Natalie Musumeci, Top Rikers Doctor: Coronavirus ‘Storm is Coming,’ New York Post (March 19, 2020), https://cutt.ly/ptRSnVo. 57 Marc F. Stern, MD, MPH, Washington State Jails Coronavirus Management Suggestions in 3 “Buckets,” Washington Assoc. of Sheriffs & Police Chiefs (March 5, 2020), https://cutt.ly/EtRSm4R. 58 Oluwadamilola T. Oladeru, et al., What COVID-19 Means for America’s Incarcerated Population – and How to Ensure It’s Not Left Behind, (March 10, 2020), https://cutt.ly/QtRSYNA. 59 Anne C. Spaulding, MD MPDH, Coronavirus COVID-19 and the Correctional Jail, Emory Center for the Health of Incarcerated Persons (March 9, 2020). 60 Madison Pauly, To Arrest the Spread of Coronavirus, Arrest Fewer People, Mother Jones (March 12, 2020), https://cutt.ly/jtRSPnk. 61 Amanda Holpuch, Calls Mount to Free Low-risk US Inmates to Curb Coronavirus Impact on Prisons, The Guardian (March 13, 2020 3:00 p.m.), https://cutt.ly/itRSDNH.
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but are not limited to: Los Angeles County, California (1,700 people);62 New York (more than 1,100 people);63 New Jersey (1,000 people);64 Cuyahoga County, Ohio (approx. 600 people),65
among others.
42. Internationally, governments have also responded to the threat posed by COVID-
19 by releasing people from incarceration. To take one of many examples, in Iran, more than
80,000 people were temporarily released from prison in the early stages of the pandemic to protect them and to protect the community from propagation of an outbreak.66 In Ethiopia, more than
4,000 people were pardoned and released from incarceration to help prevent the spread of COVID19.67
43. States and other local jurisdictions have also made changes to existing carceral
policies in response to the COVID-19 pandemic, including eliminating medical co-pays for
62 LA County Releases 1,700 Inmates to Reduce Jail Population Due to Coronavirus, NBC Los Angeles (Mar. 24, 2020), https://www.nbclosangeles.com/news/local/la-county-releases-1700inmates-to-reduce-jail-population-due-to-coronavirus/2334809/. 63 Brendan Lyons, NY to release 1,100 parole violators as coronavirus spreads, Times Union (Mar. 27, 2020), https://www.timesunion.com/news/article/Deaths-surge-again-in-New-Yorkfrom-coronavirus-15160973.php. 64 1,000 Inmates Will Be Released From N.J. Jails to Curb Coronavirus Risk, N.Y. Times (Mar. 23, 2020), https://www.nytimes.com/2020/03/23/nyregion/coronavirus-nj-inmates-release.html. 65 Scott Noll, Cuyahoga County Jail releases hundreds of low-level offenders to prepare for coronavirus pandemic, News 5 Cleveland (Mar. 20, 2020), https://www.news5cleveland.com/news/local-news/oh-cuyahoga/cuyahoga-county-jail-releaseshundreds-of-low-level-offenders-to-prepare-for-coronavirus-pandemic. 66 Parisa Hafezi, Iran Temporarily Frees 85,000 From Jail Including Political Prisoners, Reuters (Mar. 17, 2020), available at https://www.reuters.com/article/us-health-coronavirus-iranprisoners/iran-temporarily-frees-85000-from-jail-including-political-prisoners-amid-coronavirusidUSKBN21410M. 67 Bukola Adebayo, Ethiopia pardons more than 4,000 prisoners to help prevent coronavirus spread, CNN (Mar. 26, 2020), https://www.cnn.com/2020/03/26/africa/ethiopia-pardons-4000prisoners-over-coronavirus/index.html.
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incarcerated people and waiving fees for phone calls and video communication.68 Others have required facilities to distribute and make available sanitation supplies and hand sanitizer to everyone who is incarcerated, arranged for the immediate evaluation and treatment of anyone with symptoms, and enacted screening procedures for everyone who enters the jail or prison.69
44. Over the past two weeks, multiple courts have also acknowledged the severe and urgent threats posed by COVID-19 and have accordingly ordered the release of detained and incarcerated persons.70
THE COVID-19 PANDEMIC HAS REACHED MIAMI-DADE COUNTY, WHERE THERE HAVE BEEN WIDESPREAD CALLS FOR PREVENTIVE MEASURES AND
HUMANE TREATMENT FOR INCARCERATED PEOPLE 45. As of April 4, 2020, 3,667 people have been diagnosed with COVID-19 in Miami-

68 Responses to the COVID-19 Pandemic, Prison Policy (Mar. 27, 2020), https://www.prisonpolicy.org/virus/virusresponse.html.

69 See, e.g., Preparedness and Response Plan 5-8, Indiana Dep’t of Correction (2020), available

at

https://www.in.gov/idoc/files/IDOC%20Pandemic%20Response%20Plan%203-3-

2020.pdf#response%20plan

70 See, e.g., Castillo et al. v. Barr, 5:20-cv-00605, ECF Doc. 32 (C.D. Cal. Mar. 27, 2020) (ordering petitioners be released from immigration detention in light of COVID-19 and noting “the risk of infection in immigration detention facilities – and jails – is particularly high”); USA v. Garlock., No. 18 Cr 00418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (ordering, sua sponte, extension of convicted defendant’s surrender date and noting “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided”); Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir. Mar. 24, 2020) (ordering, sua sponte, that petitioner be immediately released from immigration detention “[i]n light of the rapidly escalating public health crisis” related to COVID-19 that”public health authorities predict will especially impact immigration detention centers”); U.S. v. Stephens, 15 Cr. 95 (AJN), 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020) (granting motion for reconsideration of defendant’s bail conditions and releasing him from jail to home confinement, explaining that “the unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic has become apparent” and that “inmates may be at a heightened risk of contracting COVID-19 should an outbreak develop”); In re. Extradition of Alejandro Toledo Manrique, 2020 WL 1307109, (N.D. Cal. March 19, 2020) (ordering release on bond despite government assertions that facility has preparedness plan in place and no cases have been confirmed).

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Dade County, with 30 deaths confirmed.71
46. The Governor of Florida declared a public health emergency (March 1, 2020) as
well as a state of emergency (March 9, 2020) due to the presence of COVID-19 in Florida.72 On
March 12, 2020, Miami-Dade County Mayor Carlos A. Gimenez declared a local state of
emergency to respond to the threat posed by COVID-19, which remains in effect.73 Understanding
the preventive measures that each person “must take . . . to help stop the spread of this virus,”
including sanitation and “strict social distancing of at least six feet between people,” County Mayor
Gimenez took further executive action.74 He cancelled mass gatherings,75 prohibited groups of 10
or more people from congregating in public spaces,76 ordered nonessential establishments to
close,77 and required all essential establishments to ensure that customers and employees
71 Florida Dep’t of Health, Division of Disease Control and Health Protection, Florida’s COVID19 Data and Surveillance Dashboard (last visited Apr. 4, 020), https://fdoh.maps.arcgis.com/apps/opsdashboard/index.html#/8d0de33f260d444c852a615dc7837 c86 72 Miami-Dade County Executive Order Extending Declaration of Local State of Emergency, Miami-Dade County (Mar. 25, 2020), https://www.miamidade.gov/information/library/2020-0325-state-of-emergency-extension-2.pdf. 73 Id. 74 Mayor-Dade County Mayor Carlos A. Gimenez issues Executive Order closing all non-essential businesses, Miami-Dade County News Release (Mar. 19, 2020), https://www.miamidade.gov/releases/2020-03-18-COVID-business-closures.asp. 75 Statement from Miami-Dade County Mayor Carlos A. Gimenez on cancellation of mass gatherings, Office of the Mayor (Mar. 12, 2020), https://www.miamidade.gov/releases/2020-0312-mayor-covid-events.asp. 76 Miami-Dade County Emergency Order 10-20, Miami-Dade County (Mar. 24, 2020), https://www.miamidade.gov/information/library/coronavirus-emergency-order-10-20-publicgatherings.pdf. 77 Mayor-Dade County Mayor Carlos A. Gimenez issues Executive Order closing all non-essential businesses, Miami-Dade County News Release (Mar. 19, 2020), https://www.miamidade.gov/releases/2020-03-18-COVID-business-closures.asp.
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maintained appropriate social distancing while present.78 47. On March 12, 2020, MDCR suspended all visitation in the Miami-Dade County
jails to protect “[t]he health of individuals in []MDCR custody” given fears of COVID-19 transmission.79
48. On March 15, 2020, a coalition of civil rights, public health, and grassroots community organizations published an open letter to the State Attorney’s Office, the Eleventh Judicial Circuit, and police departments across the county to urge immediate action in response to COVID-19.80 The letter observed that “incarcerated people are at increased risk of exposure and death” given the “unsanitary and dangerous living conditions” in the jails, the impossibility of practicing physical distancing, the forced proximity to other people in cells and other communal spaces within the jails, “sparse and inadequate” medical care, and the jail’s lack of “capacity to handle such a large outbreak.”81 Given that the jails are “a petri dish for viral infection,” the letter demanded immediate steps, including the release of people and a moratorium on new bookings.82
49. Around that same time, State Attorney Candidate Melba Pearson issued a press release demanding that the County take steps to decarcerate and improve conditions within the
78 Miami-Dade County Emergency Order 13-20, Miami-Dade County (Mar. 27, 2020), https://www.miamidade.gov/information/library/coronavirus-emergency-order-13-20-socialdistancing.pdf. 79 Ex. 10, MiamiDadeCorrections (@MDCCorrections), Twitter (Mar. 12, 2020, 5:27 PM), https://twitter.com/MDCCorrections/status/1238215082275938307. 80 Freedom from Cages is a Public Health Issue: Legal experts, Healthcare professionals, and Local Activists Urge Action to Immediately Decrease Miami Jail Population In Order to Save Lives Amid COVID-19 Crisis, Medium (Mar. 15, 2020), https://medium.com/@dreamdefenders/legalexperts-healthcare-professionals-and-local-activists-urge-action-to-immediately-decrease44e500043ef7. 81 Id. 82 Id.
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jails, including providing sanitation supplies, hiring more medical personnel and suspending costs for phone calls, in response to the growing COVID-19 crisis.83 Pearson similarly noted that “[j]ails are notorious for the spread of disease to staff and incarcerated persons.”84
50. On March 16, 2020, State Attorney Katherine Fernandez Rundle acknowledged that COVID-19 poses a “threat to inmates who may be at heightened risk” and stated that she had reached out to the Public Defender’s Office, MDCR, and the Eleventh Judicial Circuit of Florida to develop a process of releasing certain populations of people from the jails.85 On April 3, 2020, she announced that, “as a result of [this] collaborative effort,” eighteen individuals whose term of incarceration was due to expire in the next two months would be released early.86 This coalition of decision makers correctly “recognize that [they] need to reduce the number of people held in our local jails to reduce the chances that COVID-19 could spread among the officers, staff, and inmates.” Id.
51. On March 20, 2020, MDCR posted a video from St. Mary’s County Sherriff’s Office that “provides some helpful tips on how to prevent the introduction and spread of COVID19 into jails nationwide.”87 The video features Dr. Anne Spaulding, a physician trained in internal medicine and infectious disease, who has multiple decades of experience working in carceral facilities. Dr. Spaulding’s recommendations included: conducting daily screening procedures for
83 See Jerry Iannelli, Advocates Demand Miami-Dade Empty Jails During COVID-19 Outbreak, Miami New Times (Mar. 15, 2020), https://www.miaminewtimes.com/news/miami-jails-shouldrelease-inmates-amid-coronavirus-activists-say-11596818. 84 Id. 85 Ex. 11, Kathy Rundle (@KathyFndzRundle), Twitter (Mar. 16, 2020, 6:14 PM), https://twitter.com/KathyFndzRundle/status/1239676493464252418. 86 Ex. 12, Apr. 3, 2020 Press Release from State Attorney Katherine Fernandez Rundle. 87 Ex. 13, MiamiDadeCorrections (@MDCCorrections), Twitter (Mar. 20, 2020, 10:05 PM), https://twitter.com/MDCCorrections/status/1241184064977149953.
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symptoms for each person who enters the facility; providing N-95 masks, surgical masks or other personal protective equipment to staff and incarcerated people; providing sufficient physical distance between incarcerated people; ensuring sufficient cleaning of high-touch areas (like door handles); providing sufficient cleaning materials that will destroy coronaviruses; and providing sufficient space or facilities (like a negative pressure room) to care for individuals who experience symptoms.88 MDCR said it was “implementing some of the same preventative measures” in its facilities but did not specify which measures it put into place.89
52. On March 24, 2020, the County confirmed that three corrections officers had tested positive for COVID-19. The three officers had worked at three jails—Metro West, the Turner Guilford Knight Correctional Center, and the Pre-Trial Detention Center—where all three individuals had shared contact with incarcerated people.90 On April 4, 2020, reports indicate that fifteen people who work in the County jails have tested positive for COVID-19 and that hand sanitizer, masks, and gloves are in short supply.91
53. Hospitals in Miami-Dade County are already suffering. Jackson Memorial Hospital, one of the largest hospitals in the United States and the largest hospital in the state of Florida, is also the hospital where the jail sends the people in its custody who require serious medical attention. Jackson Hospital is already experiencing a shortage of supplies as its intensive care unit is beginning to reach capacity, and a trauma physician who works there says they “are

88 Id.

89 Id.

90 Charles Rabin, Miami-Dade corrections officers who worked courthouse, 3 jails test positive for

COVID-19,

The

Miami

Herald

(Mar.

24,

2020),

https://www.miamiherald.com/news/coronavirus/article241484201.html.

91 Ovalle, see supra note 1.

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slowly descending into chaos.”92
54. On March 27, 2020, the MDCR issued a press release identifying steps it claims to have taken “to protect the health and well-being of [its] employees and inmates in [its] custody.”93
These steps include:
a. “Following the Centers for Disease Control and Prevention’s Interim Guidance on the Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities”;
b. “Cancelled inmate visitation and all other non-essential public access”;
c. “Working with our criminal justice partners to identify inmates who could be released to minimize the inmate population”;
d. “Conducting daily screening of anyone, including MDCR employees, medical staff, police officers, entering our facilities”;
e. “Screening all inmates at intake for possible COVID-19”;
f. “Separately housing newly arrested persons, and inmates who are being investigated for possible COVID19 or test positive, from the general population inmates”;
g. “Conducting enhanced cleaning and sanitizing of high touch areas within our facilities”;
h. “Practicing social distancing among all persons, staff, and inmates”;
i. “Issuing personal protective equipment to our staff”;
j. “Collaborated with our vendors to provide free weekly telephone calls for inmates and additional postage to encourage continued communication with their families”;
k. “Increased recreational activities”;
l. “Limiting inmate movement inside, outside, and within the facilities”; and
92 Paul Murphy, Trauma physician at Florida’s biggest hospital: ‘We are slowly descending into chaos,’ CNN (Mar. 29, 2020), https://www.cnn.com/world/live-news/coronavirus-outbreak-0329-20-intl-hnk/h_7375d7e4bc0904963554159cb3f2cfc0. 93 Ex. 14, MDCR Mar. 27, 2020 News Release.
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m. “Working with our Criminal Justice Partners to increase the use [of] videoconferencing for court proceeding and attorney visitation.”
55. Many of the measures listed in the MDCR March 27 news release have not been implemented at Metro West.
DEFENDANTS’ RESPONSES TO THE COVID-19 PANDEMIC ARE CONSTITUTIONALLY DEFICIENT AND PLACE THE PEOPLE IN ITS CUSTODY
AT HEIGHTENED RISK 56. All people incarcerated in the Miami-Dade County jails face a significant risk of exposure to COVID-19. Defendants are aware of the heightened threat of COVID-19 in the jails— the CDC, the County Mayor, medical experts, and various advocates have already alerted them of this risk as well as the preventive measures needed to protect against the further spread of COVID19. 57. Despite these widespread warnings, Defendants remain woefully unprepared and incapable of taking necessary precautions to protect the people in their custody against this unprecedented, life-threatening public health crisis. 58. Urgent action is required, or many people will die. 59. Currently in Metro West, up to sixty people are forced to live in the same jail cell where dozens of bunk beds are placed only one to two feet apart. Even if they sleep head to foot, they remain within less than six feet apart. 60. Defendants do not give Class Members the ability to practice safe social distancing, and conditions force them to sit, stand, walk, eat, and sleep within six feet of another person. 61. People are also forced to share communal sinks, showers, and toilets in small common areas in each cell. Because sinks, toilets, and showers are often broken, there are only a handful of each available for everyone in the cell, which can range from 45 to over 60 people.
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They are not cleaned or disinfected between each use, and Defendants do not provide supplies for disinfection or cleaning between each use.
62. In each cell, the people incarcerated in Metro West are forced to share a limited number of phones, approximately five to six, when calling family members, loved ones, or lawyers. Defendants do not provide people with disinfectant supplies in this high-touch area, nor do they provide for the cleaning of phones between each use. Each person must therefore risk COVID-19 infection when touching and speaking through the phone.
63. Defendants do not provide free hygiene or personal sanitation supplies to anyone jailed at Metro West beyond a small, non-antibacterial bar of soap that is insufficient for the routine handwashing and cleaning necessary to mitigate against the spread of COVID-19. Those without access to the jail’s commissary due to lack of funds or status are unable to access more substantial anti-bacterial soap during the growing escalation of COVID-19.
64. Defendants have also not provided access to hand sanitizer, have denied requests to use hand sanitizer, or have removed hand sanitizer that was previously available to incarcerated people.
65. Staff often do not wear protective personal equipment like gloves or masks when interacting with people jailed at Metro West, and there have been shortages in protective personal equipment for all people incarcerated and working in the jails. Defendants do not provide any personal protective equipment for the people jailed at Metro West, even if they exhibit symptoms of COVID-19, are within close proximity of someone exhibiting symptoms of COVID-19, or request such equipment.
66. Defendants do not post or provide sufficient information about COVID-19, including protective or preventive measures to avoid transmission, to the people jailed in Metro
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West. 67. Defendants do not provide adequate cleaning supplies, free of charge and in the
proper concentrations of strength to prevent transmission of the virus, to anyone jailed at Metro West.
68. Incarcerated people are forced to conduct their own cleanings of the cells and communal areas once per eight-hour shift. Defendants designate particular people in each cell to be a “trustee” for this cleaning purpose. Even when asked, Defendants do not provide the protective personal equipment needed, such as masks or gloves, that allow the people burdened with cleaning duties to protect themselves from the virus. When gloves are provided, they are in scarce supply and people are forced to reuse them for multiple days, practically eliminating any protective benefit in slowing virus transmission.
69. Defendants do not provide adequate cleaning supplies to anyone jailed at Metro West so they can clean their own personal living spaces or high-touch surfaces or objects, ensuring that the dozens of people who share the same cell will quickly transmit the illness to each other.
70. Defendants have provided neither paper towels nor other sanitary means to dry hands after washing them, meaning that people who do wash their hands must reuse the same bath towels repeatedly, or wipe their hands on their jail-issued uniforms which are exposed to contaminated surfaces or laundered infrequently (due to lack of access or cost).
71. Prior to the COVID-19 pandemic, people were required to fill out a written request to see a doctor before they were permitted to do so, and they were often forced to wait three days before visiting a nurse. During the pandemic, people are forced to wait three days or more to visit a nurse, even when they exhibit known physical symptoms of COVID-19.
72. When people confirm they have symptoms of COVID-19 and request a test, they
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are denied. They are told there are no tests available in the jail. 73. People jailed at Metro West are still required to pay a monetary co-pay for each
visit to the doctor, when the visit finally occurs. 74. When people begin to show symptoms of COVID-19, such as a dry cough, they are
not tested or quarantined. Nor are the people in proximity of others who exhibit symptoms. 75. In the last two weeks, approximately 60 people were told by jail officials at Metro
West that they were being “quarantined” due to someone testing positive for COVID-19. Instead of being separated and provided additional medical care as advised by public health experts, they were all placed in the same room and forced into close proximity to one another.
IMMEDIATE RELEASE FOR THE SUBCLASS OF MEDICALLY VULNERABLE INDIVIDUALS IS THE ONLY RESPONSE THAT ENSURES THEIR SAFETY 76. Immediate release of medically vulnerable Plaintiffs, as well as the subclass of
medically vulnerable people they represent, is a necessary public health intervention.94 77. Dr. Ranit Mishori, Senior Medical Consultant for Physicians for Human Rights and
an expert in correctional health issues, has concluded that “[r]eleasing people from incarceration is the best and safest way to . . . reduce the threat to the most vulnerable incarcerated people,” and that “[i]mmediate release is crucial for individuals with chronic illnesses or other preexisting
94 See Meyer Decl., supra note 37 at ¶¶ 37–38 (noting that population reduction in jails will be “crucially important to reducing the level of risk both for those within [jail] facilities and for the community at large,” and that stemming the flow of intakes is a part of the necessary intervention); Greifinger Decl., supra note 51 at ¶ 13 (“In my opinion, the public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety, especially given the lack of a viable vaccine for prevention or effective treatment at this stage.”); Stern Decl., supra note 51 ¶¶ 9–10 (noting that release is “a critically important way to meaningfully mitigate” the risks of harm to persons who are at high risk of serious illness or death, as well as to support the broader community health infrastructure).
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conditions.”95 Release of these vulnerable individuals is “both necessary and urgent” given that “[t]he window of opportunity is rapidly narrowing for mitigation of COVID-19.”96
78. Dr. Jonathan Giftos, the former Medical Director for Correctional Health Services at Riker’s Island, has urged “releasing as many people as possible with a focus on those at highest risk of complication.”97
79. Other correctional medical and public health experts have also urged the release of medically vulnerable people from incarceration given the heightened risk of transmission and infection, including Dr. Marc Stern (the former Assistant Secretary for Health Care at the Washington State Department of Corrections),98 Dr. Robert B. Greifinger (former manager of medical care for people incarcerated in the New York State prison system and current monitor of medical care in three large county jails for federal courts),99 and a group of doctors who work in New York City’s jails, hospitals and shelters,100 as well as a group of more than 200 Johns Hopkins faculty in public health, bioethics, medicine, and nursing.101
80. The unprecedented coronavirus pandemic unquestionably requires release of at-risk individuals, as multiple health experts have opined that no other measures would be a sufficient or appropriate response to protect their health.
95 Mishori Decl. ¶ 46, supra note 51. 96 Id. 97 Recipe for disaster: The spread of corona virus among detained populations, MSNBC (Mar. 18, 2020), https://www.msnbc.com/all-in/watch/-recipe-for-disaster-the-spread-of-coronavirusamong-detained-populations-80947781758. 98 Stern Decl. ¶¶ 9-10, supra note 51. 99 Greifinger Decl. ¶ 13, supra note 51. 100 NYC Doctors Open Letter, supra note 51. 101 Johns Hopkins Faculty Letter, supra note 51.
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CLASS ACTION ALLEGATIONS 81. The named Petitioners/Plaintiffs bring this action on behalf of themselves and all others similarly situated as a class action under Federal Rules of Civil Procedure 23(a) and 23(b)(2). 82. The class that Petitioners/Plaintiffs seek to represent is defined as all current and future persons detained at Metro West during the course of the COVID-19 pandemic (“Metro West Class”). The class allegations and law are set forth in more detail in the accompanying motion for class certification. 83. Petitioners/Plaintiffs also seek to represent a subclass of all persons in pretrial custody at Metro West who, by reason of age or medical condition, are particularly vulnerable to injury or death if they were to contract COVID-19 (“Medically-Vulnerable Subclass”). 84. The “Medically-Vulnerable Subclass” is defined as all current and future persons held at Metro West over the age of fifty, as well as all current and future persons held at Metro West of any age who experience (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure or coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; (l) a current or recent (within the last two weeks) pregnancy; and/or (m) any other condition identified either now or in the future as being a particular risk for severe illness and/or death caused by COVID-
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19. 85. This action is brought and may properly be maintained as a class action pursuant to
Rule 23 of the Federal Rules of Civil Procedure. This action satisfies the requirements of numerosity, commonality, typicality, and adequacy. Fed. R. Civ. P. 23(a).
86. On April 3, 2020, Metro West confined 1,820 people, all of whom are eligible members of this class. The class meets the numerosity requirement of Federal Rule of Civil Procedure 23(a).
87. The subclass is also too numerous for joinder of all members to be practicable. Demographic data regarding the health of correctional populations indicates that the subclass is likely to contain hundreds of people.102
88. Joinder is impracticable because the class members are numerous; the class includes future, unknown members; and the class is fluid due to the inherently transitory nature of pretrial incarceration. Certifying this class supports judicial economy.
102 Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020), www.prisonpolicy.org/blog/2020/03/06/pandemic/.
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89. Common questions of law and fact exist as to all members of the class and subclass respectively. The named Petitioners/Plaintiffs seek common declarative and injunctive relief concerning whether Defendants’ policies, practices, and procedures violate the constitutional rights of the class members. These common questions of fact and law include, but are not limited to:
1) Whether COVID-19 presents a substantial risk of harm to people detained in Metro West;
2) Whether the conditions of confinement at Metro West during the COVID19 pandemic amount to constitutional violations;
3) What measures Defendants implemented in Metro West in response to the COVID-19 crisis and what the conditions of confinement are;
4) Whether Defendants’ practices during the COVID-19 pandemic exposed people jailed at Metro West to a substantial risk of serious harm;
5) Whether Defendants knew of and disregarded a substantial risk of serious harm to the safety and health of the class; and
6) Whether medically vulnerable individuals are at a particularly grave risk of serious illness or death that cannot be mitigated while confined in MetroWest under current conditions.
90. Additionally, members of the subclass share the common question of their particular vulnerability to the COVID-19 pandemic.
91. Plaintiffs’ claims are typical of the class members’ claims. That typicality stems from their claim that Defendants have placed them at significant risk of harm by failing to take appropriate steps to address the risk of COVID-19 throughout the Metro West Detention Facility.
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Every person at the Jail faces a heightened risk of contracting COVID-19 if they are not adequately protected by Defendants. All class members seek the same declaratory and injunctive relief.
92. The claims of Petitioners/Plaintiffs are also typical of the subclass members. The claims of Plaintiffs are typical as each member is subject to increased risk as a result of their existing age or medical conditions. All members of the subclass seek the same relief in the form of immediate release through habeas corpus.
93. The Petitioners/Plaintiffs are adequate representatives of the class and subclass because their interests in the vindication of the legal claims they raise are entirely aligned with the interests of the other class members, each of whom has the same constitutional claims. There are no known conflicts of interest among members of the proposed class or subclass, and the interests of the named Petitioners/Plaintiffs do not conflict with those of the other class or subclass members.
94. Petitioners/Plaintiffs are represented by counsel with experience and success in litigating complex civil rights matters in federal court. The interests of the members of the class will be fairly and adequately protected by the named Petitioners/Plaintiffs and their attorneys.
95. Because the putative class challenges Defendants’ system as unconstitutional through declaratory and injunctive relief that would apply the same relief to every member of the class, certification under Rule 23(b)(2) is appropriate and necessary.
96. A class action is a superior means, and the only practicable means, by which the named Petitioners/Plaintiffs and class members can challenge the Defendants’ unconstitutional actions and obtain the necessary immediate declaratory and injunctive relief sought for themselves and all other members of the class.
DEFENDANTS’ FAILURE TO ADEQUATELY MITIGATE AGAINST THE SPREAD OF COVID-19 CONSTITUTES DELIBERATE INDIFFERENCE TO THE SERIOUS
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MEDICAL NEEDS OF PETITIONERS/PLAINTIFFS AND CLASS MEMBERS 97. Defendants violate Plaintiffs’ Eighth and Fourteenth Amendment rights by
incarcerating them in conditions that fail to adequately mitigate against the spread of a potentially fatal virus in the midst of a growing pandemic in spite of their knowledge and ability to do so.
98. All people held in Metro West, whether detained pre-trial or incarcerated post-trial, are entitled to be protected from conditions of confinement that create a substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (correctional officer violated Eighth Amendment by consciously failing to prevent “a substantial risk of serious harm”); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“deliberate indifference” to serious medical needs violates the Eighth Amendment). Corrections officials have a constitutional obligation to provide for detainees’ reasonable safety and to address their serious medical needs. See DeShaney v. Winnebago County Dept. of Soc. Services, 489 U.S. 189, 200 (1989) (“[W]hen the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.” ); Youngberg v. Romeo, 457 U.S. 307, 315–16, 324 (1982) (the state has an “unquestioned duty to provide adequate . . . medical care” for detained persons); Wilson v. Seiter, 501 U.S. 294, 300 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976); Brown v. Plata, 563 U.S. 493, 531-32 (2011);
99. “[T]he standard for providing basic human needs to those incarcerated or in detention is the same under both the Eighth and Fourteenth Amendments.” Keith v. DeKalb County, Georgia, 749 F.3d 1034, 1044 n.35 (11th Cir. 2014). See also City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (“[T]he due process rights of a [pretrial detainee] are at least
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as great as the Eighth Amendment protections available to a convicted prisoner.”). 100. Exposure to an infectious disease like COVID-19 without adequate preventive
measures constitutes deliberate indifference to a serious risk to health and safety, thereby violating the Eighth and Fourteenth Amendments. Helling, 509 U.S. at 33-34 (“Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease”); Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation to protect [forcibly confined] inmates from infectious disease.”); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990) (plaintiff's allegations that “the defendants forced him to remain in a dormitory [whose] atmosphere was filled with friable asbestos” and that “defendants knew of the health danger and yet refused to move the plaintiff to an asbestos-free environment” stated a claim for “deliberate indifference to the plaintiff's serious medical needs.”); see also Farmer v. Brennan, 511 U.S. 825, 833 (1994) (“[H]aving stripped [prisoners] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.”).
101. Jail officials violate this affirmative obligation by showing “deliberate indifference” to the substantial risk of serious harm. Wilson, 501 U.S. at 303. With respect to an impending infectious disease like COVID-19, deliberate indifference is satisfied when corrections officials “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” even when “the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33 (holding that a prisoner “states a cause of action . . . by alleging that [corrections officials] have, with deliberate indifference, exposed him to conditions that pose an unreasonable risk of serious damage to future health”) (emphasis added); see also Hope v. Pelzer, 536 U.S. 730, 738 (2002) (citing Farmer, 511 U.S. at 842) (court “may
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infer the existence of [deliberate indifference] from the fact that the risk of harm is obvious”). 102. This Court need not “await a tragic event” to find that Defendants are maintaining
unconstitutional conditions of confinement in the midst of a global pandemic. See Helling, 509 U.S. at 33. So long as the risk of serious harm is “likely,” as it is here, the Eighth Amendment is violated even if “the complaining inmate shows no serious current symptoms,” it is “not alleged that the likely harm would occur immediately,” and “the possible infection might not affect all of those exposed.” Id.
103. As established above, Petitioners/Plaintiffs face a significant risk of exposure to the novel coronavirus, which poses a serious threat of severe illness or death given their known vulnerable health conditions. Defendants were well aware of these serious risks to their health and safety, and their failure to provide constitutionally adequate conditions of confinement during this growing global pandemic constitutes deliberate indifference.
104. Defendants’ deliberate indifference to the health and safety of people incarcerated in the jails satisfies both objective and subjective standards. As alleged in detail above, the heightened risk of COVID-19 transmission in jails and other carceral facilities have been widely reported, and the need for risk mitigation—including testing, physical distancing, and sanitation— has been well established locally and nationwide. Advocates, including a coalition of civil rights organizations and candidate for State Attorney Melba Pearson, have called for decarceration, the release of people from the jails, and changes to the conditions of the County jails in light of the threats posed by COVID-19. State Attorney Katherine Rundle has highlighted the need for release for people who are at heightened risk of infection and death while incarcerated, and MDCR has been made aware of the need for urgent steps—including release and changes to its conditions— to respond to the growing COVID-19 crisis. MDCR has acknowledged receipt and understanding
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of the CDC guidelines for correctional facilities published on March 23, 2020, and MDCR itself has repeatedly communicated—but failed to implement—the types of changes required to its conditions to adequately protect against COVID-19 transmission and infection within its walls.
105. To file a grievance in Metro West, people are first required to obtain a grievance form from a jail guard, and they are limited to identifying one issue per form. Petitioners/Plaintiffs repeatedly asked for grievance forms to challenge the various conditions in the jail that made (and continue to make) it difficult for them to protect themselves against COVID-19. Jail employees denied their requests by explaining that paper grievance forms were unavailable. To the extent a small amount of forms became available on the day before this filing, many Petitioners/Plaintiffs were not able to access them, and no one was able to access enough of them to submit a grievance on each issue relating to Defendants’ failure to provide basic protective measures. Moreover, even for those Petitioners/Plaintiffs who were able to file a grievance on April 3, 2020, the typical grievance procedure would take too long to result in any changes to Plaintiffs’ confinement that could protect them from imminent bodily injury and death. Accordingly, administrative remedies were unavailable at the time of this suit’s filing.
106. Given that Plaintiffs were informed that grievance forms were unavailable and were denied the opportunity to engage in the administrative relief process, as well as the imminent danger of serious injury or death posed by COVID-19 and the urgency required to safeguard the health and safety of people jailed at Metro West, administrative remedies “offer[ed] no possible relief in time to prevent the imminent danger from becoming an action harm” and were therefore unavailable. See Fletcher v. Menard Correctional Center, 623 F.3d 1171, 1173 (7th Cir. 2010); see also Fuqua v. Ryan, 890 F.3d 838, 848 (9th Cir. 2018) (holding that administrative procedure was “unavailable” when it required 30-day notice but unconstitutional requirement would occur
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in 72 hours). 107. Section 2241(c)(3) allows this court to order the release of inmates like Plaintiffs
who are held “in violation of the Constitution.” 28 U.S.C. 2241(c)(3); Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (“It is clear, not only from the language of ss 2241(c)(3) and 2254(a), but also from the common-law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody.”); Peyton v. Rowe, 391 U.S. 54, 67 (1968) (Section 2241(c)(3) can afford immediate release for claims other than those challenging the sentence itself).
108. While this circuit has indicated that “conditions of confinement” claims do not sound in Section 2241 because such cases do not typically seek or require release,103 it has not addressed how Section 2241 would apply where, as in the current context, release is the only medically sound relief to protect a person’s life in a deadly pandemic. See Skinner v. Switzer, 562 U.S. 521, 534 (2011) (preferring Section 1983 to Section 2241 where outcome of challenge is not inevitable) (citing Heck); see also Jones v. Cunningham, 371 U.S. 236, 243 (1963) (Habeas “is not now and never has been a static, narrow, formalistic remedy.”); Eve Brensike Primus, A Structural Vision of Habeas Corpus, 98 Cal. L. Rev. 1, 12-14 (an original purpose of habeas was to rectify systemic violations by state actors).
109. Federal courts apply a judge-made exhaustion doctrine in § 2241 cases. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 490 (1973).104 Unlike the statutory
103 Vaz v. Skinner, 634 Fed. Appx. 778, 780 (11th Cir. 2015) (unpublished) (“Claims challenging the fact or duration of a sentence fall within the ‘core’ of habeas corpus, while claims challenging the conditions of confinement fall outside of habeas corpus law.”). 104 Cf. Deere v. Superior Court of Cal., No. 07-56109, 2009 WL 2386677, at *1 (9th Cir. Aug. 5, 2009) (declining to decide the question of whether a § 2241 petitioner must first exhaust his state
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exhaustion requirement in § 2254, though, the judge-made exhaustion requirement for § 2241 petitions is prudential, flexible, and non-jurisdictional. See, e.g. Santiago-Lugo v. Warden, 785 F.3d 467, 474 (11th Cir. 2015). The Supreme Court has described the exhaustion doctrine in § 2241 cases as a “judicially crafted instrument which reflects a careful balance between important interests of federalism and the need to preserve the writ of habeas corpus as a ‘swift and imperative remedy in all cases of illegal restraint or confinement.’” Braden, 410 U.S. at 490 (citation omitted). Courts, accordingly, apply it with those dual purposes in mind. See, e.g., Park v. Thompson, 356 F. Supp. 783, 788 (D. Haw. 1973) (“It is the legal issues that are to be exhausted, not the petitioner.”).
110. Courts have also recognized that exhaustion is excused where it would be futile. See, e.g., Davis v. Cline, 525 Fed. Appx. 658, 659 (10th Cir. 2013) (unpublished) (“We will not excuse a failure to exhaust state remedies unless it is affirmatively shown that resort to them would be useless.”) (state prisoner seeking federal 2241 habeas); Lowe v. Duckworth, 663 F.2d 42, 43 (7th Cir. 1981) (finding that the district court’s dismissal of petitioner’s habeas petition was erroneous because, where a state court delay is inordinate and unjustifiable, the court must hear the petition on its merits); Schandelmeier v. Cunningham, 819 F.2d 52, 53 (3d Cir. 1986) (applying futility doctrine to state prisoner seeking Section 2241 habeas relief); Sanchez v. United States, No. 1201540 (CBA), 2012 WL 5987858, at *1 (E.D.N.Y. Nov. 29, 2012) (quoting Beharry v. Aschcroft, 329 F.3d 51, 62 (2d Cir. 2003).
111. It would be not only futile, but dangerous to force Petitioners/Plaintiffs and Class
remedies “to the extent this question has not been decided.”); U.S. v. Castor, 937 F.2d 293, 296297 (7th Cir. 1991) (“While these applicants [defendants awaiting trial] are not subject to the statutory requirement of exhaustion remedies, 28 U.S.C. § 2254(b)(1988) … federal courts nevertheless may require, as a matter of comity, that such detainees exhaust all avenues….”).
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Members to exhaust state remedies when their risk of COVID-19 contraction is increasing by the minute. Further, traditional exhaustion remedies are less available in the face of reduced court function as a response to the COVID-19 outbreak. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (“It may further be that even where the state provides the process but in fact the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process, the federal intrusion may still be warranted.”). Finally, exhaustion is futile for proposed class members, because requiring each member to individually petition the court would burden the limited judicial resources during this emergency and cause further delay. The risk of irreparable harm to Petitioners/Plaintiffs and Class Members is too high to require exhaustion here: their lives depend on immediate relief.
CLAIMS FOR RELIEF COUNT I: Declaratory and Injunctive Relief for Violation of the Eighth and Fourteenth
Amendments (42 U.S.C. § 1983) Metro West Class versus All Defendants 112. Petitioners/Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 113. Under the Fourteenth Amendment, corrections officials are required to provide for the reasonable health and safety of persons in pretrial custody. Youngberg v. Romeo, 457 U.S. 307, 315–16, 324 (1982) (the state has an “unquestioned duty to provide adequate . . . medical care” for detained persons). 114. Under the Eighth Amendment, post-convicted persons in carceral custody have a right to be free from cruel and unusual punishment. As part of the right, the government must provide incarcerated persons with reasonable safety and address serious medical needs that arise in jail. See, e.g., Estelle, 429 U.S. at 104; DeShaney, 489 U.S. at 200.
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115. “[T]he standard for providing basic human needs to those incarcerated or in detention is the same under both the Eighth and Fourteenth Amendments.” Keith v. DeKalb County, Georgia, 749 F.3d 1034, 1044 n.35 (11th Cir. 2014). See also City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (“[T]he due process rights of a [pretrial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner.”)
116. As part of this right, the government must provide incarcerated persons with reasonable safety and address serious medical needs that arise in jail. Deliberate indifference to the serious risk COVID-19 poses to members of the Pretrial Class, and particularly members of the Medically-Vulnerable Subclass, violates this right.
117. Plaintiffs, and the class they represent, suffer a substantial risk of serious harm to their health and safety due to the presence of, and spread of, COVID-19.
118. Defendants knew of and disregarded the serious risks that COVID-19 poses to Plaintiffs, including severe illness, permanent physical damage, and death. These risks were wellestablished and obvious to Defendants.
119. Metro West has neither the capacity nor the ability to comply with public health guidelines to prevent an outbreak of COVID-19 and cannot provide for the safety of the Pretrial Class. Defendants’ actions and inactions result in the confinement of members of the Metro West Class in a jail where they do not have the capacity to test for, treat, or prevent COVID-19 outbreaks, which violates Plaintiffs’ rights to treatment and adequate medical care.
120. Defendants have subjected Petitioners/Plaintiffs to conditions of confinement that increased their risk of contracting COVID-19, for which there is no known vaccine, treatment, or care. Due to the conditions at Metro West, Petitioners/Plaintiffs are unable to take steps to protect themselves—such as social distancing, accessing medical attention or testing, or washing their
41

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hands regularly—and Defendants have failed to provide adequate protections or mitigation measures. Defendants acted with deliberate indifference towards Petitioners/Plaintiffs by failing to adequately safeguard their health and safety in the midst of a potential outbreak of a contagious, infectious disease.
121. As a result of Defendants’ unconstitutional actions, Petitioners/Plaintiffs are suffering irreparable injury.
122. Accordingly, Defendants, as supervisors, direct participants, and policy makers for Miami-Dade County, have violated the rights of the Metro West Class under the Eighth and Fourteenth Amendments.
Count II: Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (on behalf of Medically Vulnerable Subclass)
123. Petitioners/Plaintiffs repeat and re-allege paragraphs 1 through 111 as if fully set forth in this Count.
124. Petitioners/Plaintiffs are not in custody pursuant to a judgment of conviction of a state court.
125. Petitioners/Plaintiffs should be deemed to have exhausted state court remedies. Because they seek release in light of the immediate and urgent risks to their health and lives, there is no remedy that could be pursued in the courts of the State of Florida that would protect their rights. Exhaustion of any such remedy would be futile.
126. Respondents/Defendants are holding Petitioners/Plaintiffs in custody in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. Due Process forbids exposing Petitioners/Plaintiffs to a severe risk of death, pain, or permanent severe injury, and at this time no options available to Respondents/Defendants will adequately mitigate that risk other than immediate release from custody.
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PRAYER FOR RELIEF WHEREFORE, Petitioners/Plaintiffs and the Class Members respectfully request that the Court: A. Certify the proposed class; B. Enter a declaratory judgment that Defendants violated Named Plaintiffs’ and Class Members’ constitutional rights by failing to adequately safeguard their health and safety in the midst of a potential outbreak of a contagious, infectious disease; C. Grant a writ of habeas corpus for members of the Medically Vulnerable Subclass, as defined in paragraph 84; D. Enter a temporary restraining order, preliminary injunction, and permanent injunction requiring Defendants, at Metro West during the COVID-19 pandemic, to:
a. Effectively communicate to all incarcerated people, including low-literacy and nonEnglish-speaking people, sufficient information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices to reasonably ensure that individuals are able to take precautions to prevent infection;
b. Provide adequate spacing of six feet or more between incarcerated people so that social distancing can be accomplished;
c. Ensure that each incarcerated person receives, free of charge: (1) an individual supply of liquid hand soap and paper towels sufficient to allow frequent hand washing and drying each day; and (2) an adequate supply of disinfectant hand wipes or disinfectant products effective against the virus that causes COVID-19 for daily cleanings;
d. Ensure that all incarcerated people have access to hand sanitizer containing at least
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60% alcohol; e. Provide access to daily showers and daily access to clean laundry, including clean
personal towels and washrags after each shower; f. Require that all MDCR staff wear personal protective equipment, including CDC-
recommended surgical masks, when interacting with any person or when touching surfaces in cells or common areas; g. Require that all MDCR staff wash their hands, apply hand sanitizer containing at least 60% alcohol, or change their gloves both before and after interacting with any person or touching surfaces in cells or common areas; h. Take each incarcerated person’s temperature daily (with a functioning and properly operated thermometer) to identify potential COVID-19 infections; i. Assess (through questioning) each incarcerated person daily to identify potential COVID-19 infections; j. Conduct immediate testing for anyone displaying known symptoms of COVID-19; k. Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 receive adequate medical care and are properly quarantined in a nonpunitive setting, with continued access to showers, recreation, mental health services, reading materials, phone and video calling with loved ones, communications with counsel, and personal property; l. Respond to all emergency (as defined by the medical community) requests for medical attention within an hour; m. Provide sufficient disinfecting supplies, free of charge, so incarcerated people can clean high-touch areas or items (including, but not limited to, phones and
44

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headphones) between each use; n. Waive all medical co-pays for those experiencing COVID-19-related symptoms;
and o. Waive all charges for medical grievances during this health crisis; E. If immediate release is not granted to the medically vulnerable on the basis of this habeas Petition alone, then expedited review of the Petition, including oral argument, via telephonic or videoconference if necessary; F. Enter an order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; and G. Order such other and further relief as this Court deems just, proper, and equitable.

DATED: April 4, 2020

Respectfully submitted,
/s/ Quinn Smith R. Quinn Smith, Fla. Bar No. 59523  e-mail: quinn.smith@gstllp.com  Katherine Alena Sanoja, Fla. Bar No. 99137  e-mail: katherine.sanoja@gstllp.com  GST LLP  1111 Brickell Avenue, Suite 2715  Miami, Florida 33131  Telephone: (305) 856-7723 
/s/ Meena Jagannath Meena Jagannath, Fla. Bar No. 102684 meena@communityjusticeproject.com COMMUNITY JUSTICE PROJECT 3000 Biscayne Blvd. Ste 106 Miami, Florida 33137 Telephone: (305) 907-7697
/s/ Maya Ragsdale Maya Ragsdale, Fla. Bar No.: 1015395 maya@dreamdefenders.org DREAM DEFENDERS
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6161 NW 9th Ave. Miami, Florida 33127 Tel: 786-309-2217 /s/ Alexandria Twinem Alexandria Twinem, D.C. Bar No. 1644851 Pro Hac Vice Admission Pending alexandria@civilrightscorps.org Katherine Hubbard, DC Bar No. 1500503 Pro Hac Vice Admission Pending katherine@civilrightscorps.org CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 2009 Telephone: (202) 894-6126 /s/ Tiffany Yang Tiffany Yang, DC Bar. No. 230836 tyang@advancementproject.org Pro Hac Vice Admission Pending Thomas B. Harvey, MO Bar. No. 61734 Pro Hac Vice Admission Pending tharvey@advacementproject.org ADVANCEMENT PROJECT 1220 L Street NW, Ste 850 Washington, DC 20005 Telephone: (202) 728-9557 Attorneys for Plaintiffs
46

JS 44 (Rev. 0C6/1a7)sFeLS1D:R2ev0is-edc0v6-/021/12041757-KMW DocumeCnIt V1I-1L CEOnVteEreRdSoHnEFELTSD Docket 04/05/2020 Page 1 of 1

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) NOTICE: Attorneys MUST Indicate All Re-filed Cases Below.

I. (a) PLAINTIFFS Anthony Swain, et. al. and other individuals similarly situated

DEFENDANTS Daniel Junior, in his official capacity; Miami-Dade County

(b) County of Residence of First Listed Plaintiff Miami-Dade
(EXCEPT IN U.S. PLAINTIFF CASES)
(c) Attorneys (Firm Name, Address, and Telephone Number) Quinn Smith, GST LLP 1111 Brickell Avenue, Ste. 2715 305-856-7723 Meena Jagannath, Community Justice Project, 305-907-7697

County of Residence of First Listed Defendant Miami-Dade

(IN U.S. PLAINTIFF CASES ONLY)

NOTE:

IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

Attorneys (If Known)

Abigail Price-Williams, County Attorney

(d) Check County Where Action Arose: ✔ MIAMI- DADE

MONROE

BROWARD PALM BEACH MARTIN ST. LUCIE INDIAN RIVER OKEECHOBEE HIGHLANDS

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

1 U.S. Government Plaintiff

✔3

Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff)

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

1

1 Incorporated or Principal Place

4

4

of Business In This State

2 U.S. Government Defendant

4

Diversity

(Indicate Citizenship of Parties in Item III)

Citizen of Another State

2

2 Incorporated and Principal Place

of Business In Another State

5

5

Citizen or Subject of a

3

3 Foreign Nation

6

6

Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only)

Click here for: Nature of Suit Code Descriptions

CONTRACT

TORTS

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment
& Enforcement of Judgment 151 Medicare Act

PERSONAL INJURY 310 Airplane 315 Airplane Product
Liability 320 Assault, Libel &
Slander 330 Federal Employers’

PERSONAL INJURY 365 Personal Injury -
Product Liability 367 Health Care/
Pharmaceutical Personal Injury Product Liability

625 Drug Related Seizure of Property 21 USC 881
690 Other

152 Recovery of Defaulted

Liability

368 Asbestos Personal

Student Loans (Excl. Veterans) 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise
REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment
240 Torts to Land

340 Marine 345 Marine Product
Liability 350 Motor Vehicle 355 Motor Vehicle
Product Liability 360 Other Personal
Injury 362 Personal Injury -
Med. Malpractice CIVIL RIGHTS 440 Other Civil Rights 441 Voting
442 Employment
443 Housing/ Accommodations

Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability
PRISONER PETITIONS Habeas Corpus: 463 Alien Detainee 510 Motions to Vacate Sentence
Other:

LABOR 710 Fair Labor Standards
Act 720 Labor/Mgmt. Relations 740 Railway Labor Act 751 Family and Medical
Leave Act 790 Other Labor Litigation 791 Empl. Ret. Inc.
Security Act

245 Tort Product Liability

445 Amer. w/Disabilities - 530 General

IMMIGRATION

290 All Other Real Property

Employment

535 Death Penalty

462 Naturalization Application

446 Amer. w/Disabilities - 540 Mandamus & Other

Other

✘ 550 Civil Rights

465 Other Immigration Actions

448 Education

555 Prison Condition

560 Civil Detainee –

Conditions of

Confinement

V. ORIGIN ✔ 1 Original
Proceeding

(Place an “X” in One Box Only)

2 Removed from State Court

3 Re-filed (See VI below)

4 Reinstated or Reopened

5 Transferred from another district (specify)

6 Multidistrict Litigation Transfer

422 Appeal 28 USC 158 423 Withdrawal
28 USC 157
PROPERTY RIGHTS 820 Copyrights 830 Patent 835 Patent – Abbreviated New Drug Application 840 Trademark
SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))
FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff
or Defendant) 871 IRS—Third Party 26 USC 7609

375 False Claims Act 376 Qui Tam (31 USC
3729 (a)) 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce
460 Deportation
470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/ Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information Act 896 Arbitration 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
950 Constitutionality of State Statutes

7 Appeal to
District Judge
from Magistrate Judgment

8 Multidistrict Litigation – Direct File

9

Remanded from Appellate Court

VI. RELATED/

(See instructions): a) Re-filed Case YES ✔ NO

b) Related Cases YES ✔ NO

RE-FILED CASE(S)

JUDGE:

DOCKET NUMBER:

Cite the U.S. Civil Statute under which you are filing and Write a Brief Statement of Cause (Do not cite jurisdictional statutes unless diversity):
VII. CAUSE OF ACTION 42 U.S.C. § 1983, 22 U.S.C. § 2241, and 28 U.S.C. § 2201, et seq., 8th and 14 Amendments to U.S. Constitution

LENGTH OF TRIAL via

days estimated (for both sides to try entire case)

VIII. REQUESTED IN COMPLAINT:

✔

CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23

DEMAND $ TRO

CHECK YES only if demanded in complaint:

JURY DEMAND:

Yes ✔ No

ABOVE INFORMATION IS TRUE & CORRECT TO THE BEST OF MY KNOWLEDGE

DATE
April 4, 2020

SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT #

AMOUNT

IFP

JUDGE

MAG JUDGE

Case 1:20-cv-21457-KMW Document 1-2 Entered on FLSD Docket 04/05/2020 Page 1 of 1

AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
S_o_u_t_h_e_r_n_D_i_stDriicsttroifctFolofr_id_a________

ANTHONY SWAIN; ALEN BLANCO; BAYARDO CRUZ; RONNIEL FLORES; WINFRED HILL;
DEONDRE WILLIS; PETER BERNAL, individually and on behalf of all others similarly situated
Plaintiff(s)
v.
DANIEL JUNIOR, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department; MIAMI-DADE COUNTY, FLORIDA,
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 1:20-cv-21457

)

)

)

)

)

SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) Daniel Junior, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department 2525 NW 62nd Street Miami, Florida 33147

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Rodney Quinn Smith, II
GST LLP 1111 Brickell Avenue, Ste 2715 Miami, Florida 33131

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 1:20-cv-21457-KMW Document 1-3 Entered on FLSD Docket 04/05/2020 Page 1 of 1

AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
S_o_u_t_h_e_r_n_D_i_stDriicsttroifctFolofr_id_a________

ANTHONY SWAIN; ALEN BLANCO; BAYARDO CRUZ; RONNIEL FLORES; WINFRED HILL;
DEONDRE WILLIS; PETER BERNAL, individually and on behalf of all others similarly situated
Plaintiff(s)
v.
DANIEL JUNIOR, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department; MIAMI-DADE COUNTY, FLORIDA,
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 1:20-cv-21457

)

)

)

)

)

SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) Daniel Junior, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department 2525 NW 62nd Street Miami, Florida 33147

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Rodney Quinn Smith, II
GST LLP 1111 Brickell Avenue, Ste 2715 Miami, Florida 33131

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 1:20-cv-21457-KMW Document 1-4 Entered on FLSD Docket 04/05/2020 Page 1 of 5
EXHIBIT 1

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EXHIBIT 2

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Case 1:20-cv-01803-AKH Document 42 Filed 03/16/20 Page 1 of 23
Declaration of Dr. Jaimie Meyer
Pursuant to 28 U.S.C.§ 1746, I hereby declare as follows:
I. Background and Qualifications
1. I am Dr. Jaimie Meyer, an Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut. I am board certified in Internal Medicine, Infectious Diseases and Addiction Medicine. I completed my residency in Internal Medicine at NY Presbyterian Hospital at Columbia, New York, in 2008. I completed a fellowship in clinical Infectious Diseases at Yale School of Medicine in 2011 and a fellowship in Interdisciplinary HIV Prevention at the Center for Interdisciplinary Research on AIDS in 2012. I hold a Master of Science in Biostatistics and Epidemiology from Yale School of Public Health.
2. I have worked for over a decade on infectious diseases in the context of jails and prisons. From 2008-2016, I served as the Infectious Disease physician for York Correctional Institution in Niantic, Connecticut, which is the only state jail and prison for women in Connecticut. In that capacity, I was responsible for the management of HIV, Hepatitis C, tuberculosis, and other infectious diseases in the facility. Since then, I have maintained a dedicated HIV clinic in the community for patients returning home from prison and jail. For over a decade, I have been continuously funded by the NIH, industry, and foundations for clinical research on HIV prevention and treatment for people involved in the criminal justice system, including those incarcerated in closed settings (jails and prisons) and in the community under supervision (probation and parole). I have served as an expert consultant on infectious diseases and women’s health in jails and prisons for the UN Office on Drugs and Crimes, the Federal Bureau of Prisons, and others. I also served as an expert health witness for the US Commission on Civil Rights Special Briefing on Women in Prison.
3. I have written and published extensively on the topics of infectious diseases among people involved in the criminal justice system including book chapters and articles in leading peer-reviewed journals (including Lancet HIV, JAMA Internal Medicine, American Journal of Public Health, International Journal of Drug Policy) on issues of prevention, diagnosis, and management of HIV, Hepatitis C, and other infectious diseases among people involved in the criminal justice system.
4. My C.V. includes a full list of my honors, experience, and publications, and it is attached as Exhibit A.
5. I am being paid $1,000 for my time reviewing materials and preparing this report.
6. I have not testified as an expert at trial or by deposition in the past four years.
II. Heightened Risk of Epidemics in Jails and Prisons
1

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7. The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected. There are several reasons this is the case, as delineated further below.
8. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. People often need to be transported to and from facilities to attend court and move between facilities. Prison health is public health.
9. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater. When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
10. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and staff.
11. Reduced prevention opportunities: During an infectious disease outbreak, people can protect themselves by washing hands. Jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcohol-based sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons because of a lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
12. Reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have
2

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access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and ill-equipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak.
13. Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.1 This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.
14. Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24-hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large outbreaks of infectious diseases. To prevent transmission of droplet-borne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes both containing the illness and caring for those who have become infected much more difficult.
15. Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, and medications.
16. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
17. Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited.
18. Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to
1 Active case finding for communicable diseases in prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
3

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work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public.
19. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.2 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.3 Even facilities on “quarantine” continued to accept new intakes, rendering the quarantine incomplete. These scenarios occurred in the “best case” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
III. Profile of COVID-19 as an Infectious Disease4
20. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but it is possible that people can transmit the virus before they start to show symptoms or for weeks after their symptoms resolve. In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for another year to the general public. Antiviral medications are currently in testing but not yet FDA-approved, so only available for compassionate use from the manufacturer. People in prison and jail will likely have even less access to these novel health strategies as they become available.
2 Influenza Outbreaks at Two Correctional Facilities — Maine, March 2011, Centers for Disease Control and Prevention (2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 3 David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-fluwidespread-in-prisons-and-jails-but-deaths-are-few/. 4 This whole section draws from Brooks J. Global Epidemiology and Prevention of COVID19, COVID-19 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virtual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www.ncchc.org/blog/covid-19-coronavirus-what-youneed-to-know-in-corrections.
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21. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.5 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.6 Death in COVID-19 infection is usually due to pneumonia and sepsis. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.
22. The care of people who are infected with COVID-19 depends on how seriously they are ill.7 People with mild symptoms may not require hospitalization but may continue to be closely monitored at home. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities.
23. COVID-19 prevention strategies include containment and mitigation. Containment requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. Jails and prisons are totally under-resourced to meet the demand for any of these strategies. As infectious diseases spread in the community, public health demands mitigation strategies, which involves social distancing and closing other communal spaces (schools, workplaces, etc.) to protect those most vulnerable to disease. Jails and prisons are unable to adequately provide social distancing or meet mitigation recommendations as described above.
24. The time to act is now. Data from other settings demonstrate what happens when jails and prisons are unprepared for COVID-19. News outlets reported that Iran temporarily released 70,000 prisoners when COVID-19 started to sweep its facilities.8 To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in
5 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease Control and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/summary.html. 6 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study. The Lancet (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext 7 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidancemanagement-patients.html. 8 Iran temporarily releases 70,000 prisoners as coronavirus cases surge, Reuters (March 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases70000-prisoners-as-coronavirus-cases-surge-idUSKBN20W1E5.
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place.9 Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and potentially transmit the virus to others.
IV. Risk of COVID-19 in ICE’s NYC-Area Detention Facilities
25. I have reviewed the following materials in making my assessment of the danger of COVID-19 in the Bergen, Essex, Hudson, and Orange County jails (“ICE’s NYC-area jails”): (1) a declaration by Marinda van Dalen, a Senior Attorney in the Health Justice Program at New York Lawyers for the Public Interest (NYLPI); (2) the report Detained and Denied: Healthcare Access in Immigration Detention, released by NYLPI in 2017; and (3) the report Ailing Justice: New Jersey, Inadequate Healthcare, Indifference, and Indefinite Confinement in Immigration Detention, released by Human Rights First in 2018.
26. Based on my review of these materials, my experience working on public health in jails and prisons, and my review of the relevant literature, it is my professional judgment that these facilities are dangerously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, which would result in severe harm to detained individuals, jail and prison staff, and the broader community. The reasons for this conclusion are detailed as follows.
27. The delays in access to care that already exist in normal circumstances will only become worse during an outbreak, making it especially difficult for the facilities to contain any infections and to treat those who are infected.
28. Failure to provide individuals with continuation of the treatment they were receiving in the community, or even just interruption of treatment, for chronic underlying health conditions will result in increased risk of morbidity and mortality related to these chronic conditions.
29. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected.
30. People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention. Failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by COVID-19 outbreaks, may result in poor health outcomes. Moreover, mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation.
9 Luke Barr & Christina Carrega, State prisons prepare for coronavirus but federal prisons not providing significant guidance, sources say, ABC News (March 11, 2020), https://abcnews.go.com/US/state-prisons-prepare-coronavirus-federal-prisons-providingsignificant/story?id=69433690.
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31. Failure to keep accurate and sufficient medical records will make it more difficult for the facilities to identify vulnerable individuals in order to both monitor their health and protect them from infection. Inadequate screening and testing procedures in facilities increase the widespread COVID-19 transmission.
32. Language barriers will similarly prevent the effective identification of individuals who are particularly vulnerable or may have symptoms of COVID-19. Similarly, the failure to provide necessary aids to individuals who have auditory or visual disabilities could also limit the ability to identify and monitor symptoms of COVID-19.
33. The commonplace neglect of individuals with acute pain and serious health needs under ordinary circumstances is also strongly indicative that the facilities will be ill-equipped to identify, monitor, and treat a COVID-19 epidemic.
34. The failure of these facilities to adequately manage single individuals in need of emergency care is a strong sign that they will be seriously ill-equipped and underprepared when a number of people will need urgent care simultaneously, as would occur during a COVID-19 epidemic.
35. For individuals in these facilities, the experience of an epidemic and the lack of care while effectively trapped can itself be traumatizing, compounding the trauma of incarceration.
V. Conclusion and Recommendations
36. For the reasons above, it is my professional judgment that individuals placed in ICE’s NYC-area jails are at a significantly higher risk of infection with COVID-19 as compared to the population in the community and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death.
37. Reducing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for those within those facilities and for the community at large.
38. As such, from a public health perspective, it is my strong opinion that individuals who can safely and appropriately remain in the community not be placed in ICE’s NYC-area jails at this time. I am also strongly of the opinion that individuals who are already in those facilities should be evaluated for release.
39. This is more important still for individuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune system, diabetes) or who are over the age of 60. They are in even greater danger in these facilities, including a meaningfully higher risk of death.
40. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in these facilities is a matter of days, not weeks. Once a case of
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COVID-19 identified in a facility, it will likely be too late to prevent a widespread outbreak.
41. Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.

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

March 1__5, 2020 New Haven, Connecticut

_______________________ Dr. Jaimie Meyer

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EXHIBIT A

Case 1:20-cv-21457-KMW Document 1-5 Entered on FLSD Docket 04/05/2020 Page 11 of 24 Case 1:20-cv-01803-AKH Document 42 Filed 03/16/20 JPaiamgieeM1e0yeor,fM2D3, MS, FACP

CURRICULUM VITAE

Date of Revision: Name: School:

November 20, 2019 Jaimie Meyer, MD, MS, FACP Yale School of Medicine

Education:
BA, Dartmouth College Anthropology 2000 MD, University of Connecticut School of Medicine 2005 MS, Yale School of Public Health Biostatistics and Epidemiology 2014

Career/Academic Appointments:
2005 - 2008 Residency, Internal Medicine, NY Presbyterian Hospital at Columbia, New York, NY 2008 - 2011 Fellowship, Infectious Diseases, Yale University School of Medicine, New Haven, CT 2008 - 2012 Clinical Fellow, Infectious Diseases, Yale School of Medicine, New Haven, CT 2010 - 2012 Fellowship, Interdisciplinary HIV Prevention, Center for Interdisciplinary Research on
AIDS, New Haven, CT 2012 - 2014 Instructor, AIDS, Yale School of Medicine, New Haven, CT 2014 - present Assistant Professor, AIDS, Yale School of Medicine, New Haven, CT 2015 - 2018 Assistant Clinical Professor, Nursing, Yale School of Medicine, New Haven, CT

Board Certification:
AB of Internal Medicine, Internal Medicine, 08-2008, 01-2019 AB of Internal Medicine, Infectious Disease, 10-2010 AB of Preventive Medicine, Addiction Medicine, 01-2018

Professional Honors & Recognition:

International/National/Regional

2018

NIH Center for Scientific Review, Selected as Early Career Reviewer

2017

Doris Duke Charitable Foundation, Doris Duke Charitable Foundation Scholar

2016

American College of Physicians, Fellow

2016

NIH Health Disparities, Loan Repayment Award Competitive Renewal

2016

AAMC, Early Career Women Faculty Professional Development Seminar

2014

NIH Health Disparities, Loan Repayment Program Award

2014

NIDA, Women & Sex/Gender Differences Junior Investigator Travel Award

2014

International Women's/Children's Health & Gender Working Group, Travel Award

2014

Patterson Trust, Awards Program in Clinical Research

2013

Connecticut Infectious Disease Society, Thornton Award for Clinical Research

2011

Bristol Myers-Squibb, Virology Fellows Award

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2006 2005 2005 2000 2000

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Jaimie Meyer, MD, MS, FACP
NY Columbia Presbyterian, John N. Loeb Intern Award American Medical Women’s Association, Medical Student Citation Connecticut State Medical Society, Medical Student Award Dartmouth College, Hannah Croasdale Senior Award Dartmouth College, Palaeopitus Senior Leadership Society Inductee

Yale University

2014

Women’s Faculty Forum, Public Voices Thought Leadership Program Fellow

Grants/Clinical Trials History:

Current Grants Agency: I.D.#: Title:
P.I.: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Center for Interdisciplinary Research on AIDS (CIRA) 2019-20 Pilot Project Awards Optimizing PrEP’s Potential in Non-Clinical Settings: Development and Evaluation of a PrEP Decision Aid for Women Seeking Domestic Violence Services Tiara Willie Principal Investigator 2% $29,993.00
$29,993.00 7/11/2019 - 7/10/2020

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

SAMHSA H79 TI080561 CHANGE: Comprehensive Housing and Addiction Management Network for Greater New Haven Principal Investigator 20% $389,054.00
$1,933,368.00 11/30/2018 - 11/29/2023

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project

Gilead Sciences, Inc. Investigator Sponsored Award, CO-US-276-D136 Delivering HIV Pre-Exposure Prophylaxis to Networks of Justice-Involved Women Principal Investigator 8% $81,151.00

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Jaimie Meyer, MD, MS, FACP

period: Project period:

$306,199.00 6/19/2018 - 1/31/2020

Agency: I.D.#: Title: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIDA R21 DA042702 Prisons, Drug Injection and the HIV Risk Environment Principal Investigator 22% $129,673.00
$358,276.00 8/1/2017 - 7/31/2020

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Doris Duke Charitable Foundation Clinical Scientist Development Award Developing and Testing the Effect of a Patient-Centered HIV Prevention Decision Aid on PrEP uptake for Women with Substance Use in Treatment Settings Principal Investigator 27% $149,959.00
$493,965.00 7/1/2017 - 6/30/2020

Past Grants Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIDA K23 DA033858 Evaluating and Improving HIV Outcomes in Community-based Women who Interface with the Criminal Justice System Principal Investigator 75% $149,509.00
$821,147.00 7/1/2012 - 11/30/2017

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year:

Robert Leet & Clara Guthrie Patterson Trust R12225, Award in Clinical Research Disentangling the Effect of Gender on HIV Treatment and Criminal Justice Outcomes Principal Investigator 10% $75,000.00

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Total costs for project

period:

$75,000.00

Project period:

1/31/2014 - 10/31/2015

Filed 03/16/20

Page 13 of 23
Jaimie Meyer, MD, MS, FACP

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Bristol-Myers Squibb HIV Virology Fellowship Award Effect of newer antiretroviral regimens on HIV biological outcomes in HIVinfected prisoners: a 13 year retrospective evaluation Principal Investigator 10% $34,390.00
$34,390.00 12/1/2011 - 11/30/2012

Pending Grants Agency: I.D.#: Title:
P.I.: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIMH R01 MH121991 Identifying Modifiable Risk and Protective Processes at the Day-Level that Predict HIV Care Outcomes among Women Exposed to Partner Violence Sullivan, Tami Principal Investigator 30% $499,755.00
$4,148,823.00 1/1/2020 - 12/31/2024

Invited Speaking Engagements, Presentations, Symposia & Workshops Not Affiliated With Yale:
International/National 2019: CME Outfitters, Washington, DC. "A Grassroots Approach to Weed out HIV and HCV in Special
OUD Populations" 2019: US Commission on Civil Rights, Washington, DC. "An Analysis of Women’s Health, Personal
Dignity and Sexual Abuse in the US Prison System" 2018: College of Problems on Drug Dependence, College of Problems on Drug Dependence, San
Diego, CA. "Research on Women who Use Drugs: Knowledge and Implementation Gaps and A Proposed Research Agenda" 2018: Clinical Care Options, Washington, DC. "Intersection of the HIV and Opioid Epidemics" 2016: Dartmouth Geisel School of Medicine, Hanover, NH. "Incarceration as Opportunity: Prisoner Health and Health Interventions" 2010: Rhode Island Chapter of the Association of Nurses in AIDS Care, Providence, RI. "HIV and Addiction"

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Jaimie Meyer, MD, MS, FACP
Regional 2018: Clinical Directors Network, New York, NY. "PrEP Awareness among Special Populations of
Women and People who Use Drugs" 2018: Frank H. Netter School of Medicine, Quinnipiac University, Hamden, CT. "HIV prevention for
justice-involved women" 2017: Clinical Directors Network, New York, NY. "Optimizing the HIV Care Continuum for People who
use Drugs" 2016: Frank H. Netter School of Medicine, Quinnipiac University, Hamden, CT. "Topics in Infectious
Diseases" 2016: Connecticut Advanced Practice Registered Nurse Society, Wethersfield, CT. "Trends in HIV
Prevention: Integration of Biomedical and Behavioral Approaches"
Peer-Reviewed Presentations & Symposia Given at Meetings Not Affiliated With Yale: International/National
2019: CPDD 81st Annual Scientific Meeting, CPDD, San Antonio, TX. "Punitive approaches to pregnant women with opioid use disorder: Impact on health care utilization, outcomes and ethical implications"
2019: 14th International Conference on HIV Treatment and Prevention Adherence, IAPAC Adherence, Miami, FL. "Decision-Making about HIV Prevention among Women in Drug Treatment: Is PrEP Contextually Relevant?"
2019: 2019 NIDA International Forum, NIDA, San Antonio, TX. "Diphenhydramine Injection in Kyrgyz Prisons: A Qualitative Study Of A High-Risk Behavior With Implications For Harm Reduction"
2019: 11th International Women’s and Children’s Health and Gender (InWomen’s) Group, InWomen’s Group, San Antonio, TX. "Uniquely successful implementation of methadone treatment in a women’s prison in Kyrgyzstan"
2019: Harm Reduction International, Porto, Porto District, Portugal. "How does methadone treatment travel? On the ‘becoming-methadone-body’ of Kyrgyzstan prisons"
2019: APA Collaborative Perspectives on Addiction Annual Meeting, APA Collaborative Perspectives on Addiction Annual Meeting, Providence, RI. "Impact of Trauma and Substance Abuse on HIV PrEP Outcomes among Women in Criminal Justice Systems. Symposium: “Partner Violence: Intersected with or Predictive of Substance Use and Health Problems among Women.”"
2019: Society for Academic Emergency Medicine (SAEM), Worcester, MA. "Effects of a Multisite Medical Home Intervention on Emergency Department Use among Unstably Housed People with Human Immunodeficiency Virus"
2019: Conference on Retroviruses and Opportunistic Infections (CROI), IAS, Seattle, WA. "Released to Die: Elevated Mortality in People with HIV after Incarceration"
2019: 12th Academic and Health Policy on Conference on Correctional Health, 12th Academic and Health Policy on Conference on Correctional Health, Las Vegas, NV. "PrEP Eligibility and HIV Risk Perception for Women across the Criminal Justice Continuum in Connecticut"
2019: Association for Justice-Involved Female Organizations (AJFO), Atlanta, GA. "Treatment of Women’s Substance Use Disorders and HIV Prevention During and Following Incarceration"
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Jaimie Meyer, MD, MS, FACP

2018: 2018: 2018: 2018:
2018: 2018: 2018: 2017: 2017: 2017: 2017: 2017: 2017: 2016: 2015:

American Public Health Association (APHA) Annual Meeting, American Public Health Association (APHA) Annual Meeting, San Diego, CA. "New Haven Syringe Service Program: A model of integrated harm reduction and health care services" 12th National Harm Reduction Conference, 12th National Harm Reduction Conference, New Orleans, LA. "Service needs and access to care among participants in the New Haven Syringe Services Program" 22nd International AIDS Conference, 22nd International AIDS Conference, Amsterdam, NH, Netherlands. "HIV risk perceptions and risk reduction strategies among prisoners in Kyrgyzstan: a qualitative study" 22nd International AIDS Conference, 22nd International AIDS Conference, Amsterdam, NH, Netherlands. "Methadone Maintenance Therapy Uptake, Retention, and Linkage for People who Inject Drugs Transitioning From Prison to the Community in Kyrgyzstan: Evaluation of a National Program" NIDA International Forum, NIDA, San Diego, CA. "HIV and Drug Use among Women in Prison in Azerbaijan, Kyrgyzstan and Ukraine" 2018 Conference on Retroviruses and Opportunistic Infections (CROI), CROI, Boston, MA. "From prison’s gate to death’s door: Survival analysis of released prisoners with HIV" 11th Academic and Health Policy on Conference on Correctional Health, Academic Consortium on Criminal Justice Health, Houston, TX. "Assessing Concurrent Validity of Criminogenic and Health Risk Instruments among Women on Probation in Connecticut" IDWeek: Annual Meeting of Infectious Diseases Society of America, Infectious Diseases Society of America, San Diego, CA. "Predictors of Linkage to and Retention in HIV Care Following Release from Connecticut, USA Jails and Prisons (Oral presentation)" International AIDS Society (IAS) Meeting, International AIDS Society, Paris, Île-de-France, France. "Late breaker: Predictors of Linkage to and Retention in HIV Care Following Release from Connecticut, USA Jails and Prisons" NIDA International Forum, NIDA, Montreal, QC, Canada. "A Mixed Methods Evaluation of HIV Risk among Women with Opioid Dependence in Ukraine" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Montreal, QC, Canada. "Assessing Receptiveness to and Eligibility for PrEP in Criminal Justice-Involved Women" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Montreal, QC, Canada. "A Mixed Methods Evaluation of HIV Risk among Women with Opioid Dependence in Ukraine" Annual Meeting of the Society for Applied Anthropology, Society for Applied Anthropology, Santa Fe, NM. "Where rubbers meet the road: HIV risk reduction for women on probation (Oral presentation)" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Palm Springs, CA. "An Event-level Examination of Successful Condom Negotiation Strategies among College Women" CDC National HIV Prevention Conference, CDC, Atlanta, GA. "Beyond the Syndemic: Condom Negotiation and Use among Women Experiencing Partner Violence (Oral presentation)"

6

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2015: 2015: 2014: 2014: 2014: 2013: 2013: 2012: 2012: 2012: 2011:

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Jaimie Meyer, MD, MS, FACP
International Harm Reduction Conference, International Harm Reduction, Kuala Lumpur, Federal Territory of Kuala Lumpur, Malaysia. "Evidence-Based Interventions to Enhance Assessment, Treatment, and Adherence in the Chronic Hepatitis C Care Continuum" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Phoenix, AZ. "Violence, Substance Use, and Sexual Risk among College Women" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, San Juan, San Juan, Puerto Rico. "Gender Differences in HIV and Criminal Justice Outcomes" College on Problems in Drug Dependence (CPDD), College on Problems in Drug Dependence (CPDD), San Juan, San Juan, Puerto Rico. "Gender Differences in HIV and Criminal Justice Outcomes" Conference on Retroviruses and Opportunistic Infections (CROI), Conference on Retroviruses and Opportunistic Infections (CROI), Boston, MA. "Longitudinal Treatment Outcomes in HIVInfected Prisoners and Influence of Re-Incarceration" HIV Intervention and Implementation Science Meeting, HIV Intervention and Implementation Science Meeting, Bethesda, MD. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" Conference on Retroviruses and Opportunistic Infections (CROI), Conference on Retroviruses and Opportunistic Infections (CROI), Atlanta, GA. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" IDWeek: Infectious Diseases Society of America Annual Meeting, Infectious Diseases Society of America, San Diego, CA. "Correlates of Retention in HIV Care after Release from Jail: Results from a Multi-site Study" IDWeek: Infectious Diseases Society of America Annual Meeting, Infectious Diseases Society of America, San Diego, CA. "Frequent Emergency Department Use among Released Prisoners with HIV: Characterization Including a Novel Multimorbidity Index" 5th Academic and Health Policy Conference on Correctional Health, 5th Academic and Health Policy Conference on Correctional Health, Atlanta, GA. "Effects of Intimate Partner Violence on HIV and Substance Abuse in Released Jail Detainees" IAPAC HIV Treatment and Adherence Conference, IAPAC, Miami, FL. "Adherence to HIV treatment and care among previously homeless jail detainees"

Regional 2019: Connecticut Infectious Disease Society, New Haven, CT. "Preliminary Findings from a Novel
PrEP Demonstration Project for Women Involved in Criminal Justice Systems and Members of their Risk Networks" 2017: Connecticut Public Health Association Annual Conference, Connecticut Public Health Association, Farmington, CT. "The New Haven syringe services program" 2014: Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Longitudinal Treatment Outcomes in HIV-Infected Prisoners and Influence of ReIncarceration"

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Jaimie Meyer, MD, MS, FACP

2013: 2011:

Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Emergency Department Use by Released Prisoners with HIV"

Professional Service:
Peer Review Groups/Grant Study Sections 2019 - present Reviewer, NIDA, NIH Reviewer: RFA-DA-19-025: HEAL Initiative: Justice Community
Opioid Innovation Network (JCOIN) Clinical Research Centers 2019 - present Reviewer, Yale DCFAR Pilot Projects 2018 - present Reviewer, Center for Interdisciplinary Research on AIDS (CIRA) 2015 - present Reviewer, University of Wisconsin-Milwaukee Research Growth Initiative

Advisory Boards

2017

Advisor, HIV Prevention and Treatment in Cis-Gendered Women, Gilead Sciences, Inc.

Journal Service
Editor/Associate Editor 2019 - present Associate Editor, Journal of the International Association of Providers of AIDS Care
(JIAPAC), Section Editor: Sex and Gender Issues

Reviewer 2019 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present

Reviewer, JAIDS Reviewer, Addiction Sci and Clin Pract Reviewer, Addictive Behav Reports Reviewer, AIDS Care Reviewer, Social Science and Medicine Reviewer, SpringerPlus Reviewer, Substance Abuse Treatment Prevention and Policy Reviewer, Women’s Health Issues Reviewer, Yale Journal of Biology and Medicine Reviewer, AIMS Public Health Reviewer, American Journal on Addictions Reviewer, American Journal of Epidemiology Reviewer, American Journal of Public Health Reviewer, Annals Internal Medicine Reviewer, BMC Emergency Medicine Reviewer, BMC Infectious Diseases Reviewer, BMC Public Health Reviewer, BMC Women’s Health

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Jaimie Meyer, MD, MS, FACP

2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present

Reviewer, Clinical Infectious Diseases Reviewer, Critical Public Health Reviewer, Drug and Alcohol Dependence Reviewer, Drug and Alcohol Review Reviewer, Epidemiologic Reviews Reviewer, Eurosurveillance Reviewer, Health and Justice (Springer Open) Reviewer, International Journal of Drug Policy Reviewer, International Journal of Prisoner Health Reviewer, International Journal of STDs and AIDS Reviewer, International Journal of Women’s Health Reviewer, JAMA Internal Medicine Reviewer, Journal of Family Violence Reviewer, Journal of General Internal Medicine Reviewer, Journal of Immigrant and Minority Health Reviewer, Journal of International AIDS Society Reviewer, Journal of Psychoactive Drugs Reviewer, Journal of Urban Health Reviewer, Journal of Women’s Health Reviewer, Open Forum Infectious Diseases Reviewer, PLoS ONE Reviewer, Public Health Reports

Professional Service for Professional Organizations
AAMC Group on Women in Medicine and Science (GWIMS) 2016 - present Member, AAMC Group on Women in Medicine and Science (GWIMS)

American College of Physicians 2016 - present Fellow, American College of Physicians 2013 - 2016 Member, American College of Physicians

American Medical Association 2005 - present Member, American Medical Association

American Medical Women’s Association 2011 - present Member, American Medical Women’s Association

American Society of Addiction Medicine 2009 - present Member, American Society of Addiction Medicine

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Connecticut Infectious Disease Society 2011 - present Member, Connecticut Infectious Disease Society

Infectious Disease Society of America 2008 - present Member, Infectious Disease Society of America

InWomen’s Network, NIDA International Program 2013 - present Member, InWomen’s Network, NIDA International Program

New York State Medical Society 2005 - 2008 Member, New York State Medical Society

Yale University Service University Committees 2016 - 2018 Council Member, Leadership Council, Women’s Faculty Forum

Medical School Committees 2015 - 2016 Committee Member, US Health and Justice Course, Yale School of Medicine 2014 - present Committee Member, Yale Internal Medicine Traditional Residency Intern Selection
Committee

Public Service 2019 - present 2017 - present 2013 - present 2012 - present 2009 - 2011 2002 1998 - 1999

Faculty Member, Yale University Program in Addiction Medicine Faculty Member, Arthur Liman Center for Public Interest Law, Yale Law School Mentor, Women in Medicine at Yale Mentoring Program Faculty Member, Yale Center for Interdisciplinary Research on AIDS Instructor, Preclinical Clerkship Tutor, Yale School of Medicine Fellow, Soros Open Society Institute Fellow, Costa Rican Humanitarian Foundation

Bibliography:
Peer-Reviewed Original Research 1. Meyer JP, Qiu J, Chen NE, Larkin GL, Altice FL. Emergency department use by released prisoners
with HIV: an observational longitudinal study. PloS One 2012, 7:e42416. 2. Chen NE, Meyer JP, Bollinger R, Page KR. HIV testing behaviors among Latinos in Baltimore City.
Journal Of Immigrant And Minority Health / Center For Minority Public Health 2012, 14:540-51. 3. Chitsaz E, Meyer JP, Krishnan A, Springer SA, Marcus R, Zaller N, Jordan AO, Lincoln T, Flanigan TP,
Porterfield J, Altice FL. Contribution of substance use disorders on HIV treatment outcomes and antiretroviral medication adherence among HIV-infected persons entering jail. AIDS And Behavior 2013, 17 Suppl 2:S118-27.

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4. Chen NE, Meyer JP, Avery AK, Draine J, Flanigan TP, Lincoln T, Spaulding AC, Springer SA, Altice FL. Adherence to HIV treatment and care among previously homeless jail detainees. AIDS And Behavior 2013, 17:2654-66.
5. Althoff AL, Zelenev A, Meyer JP, Fu J, Brown SE, Vagenas P, Avery AK, Cruzado-Quiñones J, Spaulding AC, Altice FL. Correlates of retention in HIV care after release from jail: results from a multi-site study. AIDS And Behavior 2013, 17 Suppl 2:S156-70.
6. Williams CT, Kim S, Meyer J, Spaulding A, Teixeira P, Avery A, Moore K, Altice F, Murphy-Swallow D, Simon D, Wickersham J, Ouellet LJ. Gender differences in baseline health, needs at release, and predictors of care engagement among HIV-positive clients leaving jail. AIDS And Behavior 2013, 17 Suppl 2:S195-202.
7. Meyer JP, Wickersham JA, Fu JJ, Brown SE, Sullivan TP, Springer SA, Altice FL. Partner violence and health among HIV-infected jail detainees. International Journal Of Prisoner Health 2013, 9:124-41.
8. Meyer JP, Qiu J, Chen NE, Larkin GL, Altice FL. Frequent emergency department use among released prisoners with human immunodeficiency virus: characterization including a novel multimorbidity index. Academic Emergency Medicine : Official Journal Of The Society For Academic Emergency Medicine 2013, 20:79-88.
9. Meyer JP, Cepeda J, Springer SA, Wu J, Trestman RL, Altice FL. HIV in people reincarcerated in Connecticut prisons and jails: an observational cohort study. The Lancet. HIV 2014, 1:e77-e84.
10. Meyer JP, Zelenev A, Wickersham JA, Williams CT, Teixeira PA, Altice FL. Gender disparities in HIV treatment outcomes following release from jail: results from a multicenter study. American Journal Of Public Health 2014, 104:434-41.
11. Meyer JP, Cepeda J, Wu J, Trestman RL, Altice FL, Springer SA. Optimization of human immunodeficiency virus treatment during incarceration: viral suppression at the prison gate. JAMA Internal Medicine 2014, 174:721-9.
12. Meyer JP, Cepeda J, Taxman FS, Altice FL. Sex-Related Disparities in Criminal Justice and HIV Treatment Outcomes: A Retrospective Cohort Study of HIV-Infected Inmates. American Journal Of Public Health 2015, 105:1901-10.
13. Boyd AT, Song DL, Meyer JP, Altice FL. Emergency department use among HIV-infected released jail detainees. Journal Of Urban Health : Bulletin Of The New York Academy Of Medicine 2015, 92:10835.
14. Shrestha R, Karki P, Altice FL, Huedo-Medina TB, Meyer JP, Madden L, Copenhaver M. Correlates of willingness to initiate pre-exposure prophylaxis and anticipation of practicing safer drug- and sexrelated behaviors among high-risk drug users on methadone treatment. Drug And Alcohol Dependence 2017, 173:107-116.
15. Peasant C, Sullivan TP, Weiss NH, Martinez I, Meyer JP. Beyond the syndemic: condom negotiation and use among women experiencing partner violence. AIDS Care 2017, 29:516-523.
16. Wickersham JA, Gibson BA, Bazazi AR, Pillai V, Pedersen CJ, Meyer JP, El-Bassel N, Mayer KH, Kamarulzaman A, Altice FL. Prevalence of Human Immunodeficiency Virus and Sexually Transmitted Infections Among Cisgender and Transgender Women Sex Workers in Greater Kuala Lumpur, Malaysia: Results From a Respondent-Driven Sampling Study. Sexually Transmitted Diseases 2017, 44:663-670.
17. Hoff E, Marcus R, Bojko MJ, Makarenko I, Mazhnaya A, Altice FL, Meyer JP. The effects of opioidagonist treatments on HIV risk and social stability: A mixed methods study of women with opioid use disorder in Ukraine. Journal Of Substance Abuse Treatment 2017, 83:36-44.
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18. Rutledge R, Madden L, Ogbuagu O, Meyer JP. HIV Risk perception and eligibility for pre-exposure prophylaxis in women involved in the criminal justice system. AIDS Care 2018, 30:1282-1289.
19. Peasant C, Sullivan TP, Ritchwood TD, Parra GR, Weiss NH, Meyer JP, Murphy JG. Words can hurt: The effects of physical and psychological partner violence on condom negotiation and condom use among young women. Women & Health 2018, 58:483-497.
20. Loeliger KB, Altice FL, Desai MM, Ciarleglio MM, Gallagher C, Meyer JP. Predictors of linkage to HIV care and viral suppression after release from jails and prisons: a retrospective cohort study. The Lancet. HIV 2018, 5:e96-e106.
21. Odio CD, Carroll M, Glass S, Bauman A, Taxman FS, Meyer JP. Evaluating concurrent validity of criminal justice and clinical assessments among women on probation. Health & Justice 2018, 6:7.
22. Loeliger KB, Altice FL, Ciarleglio MM, Rich KM, Chandra DK, Gallagher C, Desai MM, Meyer JP. Allcause mortality among people with HIV released from an integrated system of jails and prisons in Connecticut, USA, 2007-14: a retrospective observational cohort study. The Lancet. HIV 2018, 5:e617-e628.
23. Loeliger KB, Meyer JP, Desai MM, Ciarleglio MM, Gallagher C, Altice FL. Retention in HIV care during the 3 years following release from incarceration: A cohort study. PLoS Medicine 2018, 15:e1002667.
24. Azbel L, Wegman MP, Polonsky M, Bachireddy C, Meyer J, Shumskaya N, Kurmanalieva A, Dvoryak S, Altice FL. Drug injection within prison in Kyrgyzstan: elevated HIV risk and implications for scaling up opioid agonist treatments. International Journal Of Prisoner Health 2018, 14:175-187.
25. Peasant C, Montanaro EA, Kershaw TS, Parra GR, Weiss NH, Meyer JP, Murphy JG, Ritchwood TD, Sullivan TP. An event-level examination of successful condom negotiation strategies among young women. Journal Of Health Psychology 2019, 24:898-908.
26. Ranjit YS, Azbel L, Krishnan A, Altice FL, Meyer JP. Evaluation of HIV risk and outcomes in a nationally representative sample of incarcerated women in Azerbaijan, Kyrgyzstan, and Ukraine. AIDS Care 2019, 31:793-797.
27. Rhodes T, Azbel L, Lancaster K, Meyer J. The becoming-methadone-body: on the onto-politics of health intervention translations. Sociology Of Health & Illness 2019, 41:1618-1636.
28. Olson B, Vincent W, Meyer JP, Kershaw T, Sikkema KJ, Heckman TG, Hansen NB. Depressive symptoms, physical symptoms, and health-related quality of life among older adults with HIV. Quality Of Life Research : An International Journal Of Quality Of Life Aspects Of Treatment, Care And Rehabilitation 2019.
Chapters, Books, and Reviews 29. Azar MM, Springer SA, Meyer JP, Altice FL. A systematic review of the impact of alcohol use
disorders on HIV treatment outcomes, adherence to antiretroviral therapy and health care utilization. Drug And Alcohol Dependence 2010, 112:178-93. 30. Meyer JP, Springer SA, Altice FL. Substance abuse, violence, and HIV in women: a literature review of the syndemic. Journal Of Women's Health (2002) 2011, 20:991-1006. 31. Meyer JP, Chen NE, Springer SA. HIV Treatment in the Criminal Justice System: Critical Knowledge and Intervention Gaps. AIDS Research And Treatment 2011, 2011:680617. 32. Springer SA, Spaulding AC, Meyer JP, Altice FL. Public health implications for adequate transitional care for HIV-infected prisoners: five essential components. Clinical Infectious Diseases : An Official Publication Of The Infectious Diseases Society Of America 2011, 53:469-79.
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33. Chen NE, Meyer JP, Springer SA. Advances in the prevention of heterosexual transmission of HIV/AIDS among women in the United States. Infectious Disease Reports 2011, 3.
34. Meyer J, Altice F. HIV in Injection and Other Drug Users. Somesh Gupta, Bhushan Kumar, eds. Sexually Transmitted Infections 2nd ed. New Delhi, India: Elsevier, 2012: 1061-80. ISBN 978-81312-2809-8.
35. Meyer JP, Althoff AL, Altice FL. Optimizing care for HIV-infected people who use drugs: evidencebased approaches to overcoming healthcare disparities. Clinical Infectious Diseases : An Official Publication Of The Infectious Diseases Society Of America 2013, 57:1309-17.
36. Meyer J, Altice F. Chapter 47, Treatment of Addictions: Transition to the Community. Robert L. Trestman, Kenneth L. Appelbaum, Jeffrey L. Metzner, eds. Oxford Textbook of Correctional Psychiatry (Winner of the 2016 Guttmacher Award). Oxford University Press 2015. ISBN 9780199360574.
37. Meyer JP, Moghimi Y, Marcus R, Lim JK, Litwin AH, Altice FL. Evidence-based interventions to enhance assessment, treatment, and adherence in the chronic Hepatitis C care continuum. The International Journal On Drug Policy 2015, 26:922-35.
38. Mohareb A, Tiberio P, Mandimika C, Muthulingam D, Meyer J. Infectious Diseases in Underserved Populations. Onyema Ogbuagu, Gerald Friedland, Merceditas Villanueva, Marjorie Golden, eds. Current Diagnosis and Treatment- Infectious Diseases. McGraw-Hill Medical 2016.
39. Meyer JP, Womack JA, Gibson B. Beyond the Pap Smear: Gender-responsive HIV Care for Women. The Yale Journal Of Biology And Medicine 2016, 89:193-203.
40. Meyer JP, Muthulingam D, El-Bassel N, Altice FL. Leveraging the U.S. Criminal Justice System to Access Women for HIV Interventions. AIDS And Behavior 2017, 21:3527-3548.
41. Shrestha R, McCoy-Redd B, Meyer J. Pre-Exposure Prophylaxis (PrEP) for People Who Inject Drugs (PWID). Brianna Norton, Ed. The Opioid Epidemic and Infectious Diseases. Elsevier 2019.
42. Meyer JP, Isaacs K, El-Shahawy O, Burlew AK, Wechsberg W. Research on women with substance use disorders: Reviewing progress and developing a research and implementation roadmap. Drug And Alcohol Dependence 2019, 197:158-163.
Peer-Reviewed Educational Materials 43. The Fortune Society Reentry Education Project Detailing Kit. New York City Department of Health
and Mental Hygiene. October 2014 44. United Nations Office on Drugs and Crime. Vienna, Austria
Invited Editorials and Commentaries 45. Meyer JP. Capsule Commentary on Pyra et al., sexual minority status and violence among HIV
infected and at-risk women. Journal Of General Internal Medicine 2014, 29:1164. 46. Brinkley-Rubinstein L, Dauria E, Tolou-Shams M, Christopoulos K, Chan PA, Beckwith CG, Parker S,
Meyer J. The Path to Implementation of HIV Pre-exposure Prophylaxis for People Involved in Criminal Justice Systems. Current HIV/AIDS Reports 2018, 15:93-95. 47. Meyer JP. The Sustained Harmful Health Effects of Incarceration for Women Living with HIV. Journal Of Women's Health (2002) 2019, 28:1017-1018.
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Case Reports, Technical Notes, Letters 48. Paul J. Bullous pemphigoid in a patient with psoriasis and possible drug reaction: a case report.
Connecticut Medicine 2004, 68:611-5. 49. How J, Azar MM, Meyer JP. Are Nectarines to Blame? A Case Report and Literature Review of
Spontaneous Bacterial Peritonitis Due to Listeria monocytogenes. Connecticut Medicine 2015, 79:31-6. 50. Vazquez Guillamet LJ, Malinis MF, Meyer JP. Emerging role of Actinomyces meyeri in brain abscesses: A case report and literature review. IDCases 2017, 10:26-29. 51. Harada K, Heaton H, Chen J, Vazquez M, Meyer J. Zoster vaccine-associated primary varicella infection in an immunocompetent host. BMJ Case Reports 2017, 2017. 52. Bernardo R, Streiter S, Tiberio P, Rodwin BA, Mohareb A, Ogbuagu O, Emu B, Meyer JP. Answer to December 2017 Photo Quiz. Journal Of Clinical Microbiology 2017, 55:3568. 53. Bernardo R, Streiter S, Tiberio P, Rodwin BA, Mohareb A, Ogbuagu O, Emu B, Meyer JP. Photo Quiz: Peripheral Blood Smear in a Ugandan Refugee. Journal Of Clinical Microbiology 2017, 55:33133314. Scholarship In Press 54. Hoff E, Adams Z, Dasgupta A, Goddard D, Sheth S, Meyer J. Reproductive Health Justice and Autonomy: A systematic review of pregnancy planning intentions, needs, and interventions among women involved in US criminal justice systems. J Women’s Health
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EXHIBIT 3

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Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities

This interim guidance is based on what is currently known about the transmission and severity of coronavirus disease 2019 (COVID-19) as of March 23, 2020.
The US Centers for Disease Control and Prevention (CDC) will update this guidance as needed and as additional information becomes available. Please check the following CDC website periodically for updated interim guidance: https://www.cdc.gov/coronavirus/2019-ncov/index.html.
This document provides interim guidance specific for correctional facilities and detention centers during the outbreak of COVID-19, to ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff, and visitors. Recommendations may need to be revised as more information becomes available.

In this guidance
• Who is the intended audience for this guidance?
• Why is this guidance being issued?
• What topics does this guidance include?
• Definitions of Commonly Used Terms
• Facilities with Limited Onsite Healthcare Services
• COVID-19 Guidance for Correctional Facilities
• Operational Preparedness
• Prevention
• Management
• Infection Control
• Clinical Care of COVID-19 Cases
• Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
• Verbal Screening and Temperature Check Protocols for Incarcerated/ Detained Persons, Staff, and Visitors

Who is the intended audience for this guidance?
This document is intended to provide guiding principles for healthcare and non-healthcare administrators of correctional and detention facilities (including but not limited to federal and state prisons, local jails, and detention centers), law enforcement agencies that have custodial authority for detained populations (i.e., US Immigration and Customs Enforcement and US Marshals Service), and their respective health departments, to assist in preparing for potential introduction, spread, and mitigation of COVID-19 in their facilities. In general, the document uses terminology referring to correctional environments but can also be applied to civil and pre-trial detention settings.
This guidance will not necessarily address every possible custodial setting and may not use legal terminology specific to individual agencies’ authorities or processes. The guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions. Facilities should contact CDC or their state, local, territorial, and/or tribal public health department if they need assistance in applying these principles or addressing topics that are not specifically covered in this guidance.

CS 316182-A  03/27/2020

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Why is this guidance being issued?
Correctional and detention facilities can include custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting. The integration of these components presents unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors. Consistent application of specific preparation, prevention, and management measures can help reduce the risk of transmission and severe disease from COVID-19.
• Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.
• In most cases, incarcerated/detained persons are not permitted to leave the facility.
• There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.
• Persons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas.
• Options for medical isolation of COVID-19 cases are limited and vary depending on the type and size of facility, as well as the current level of available capacity, which is partly based on medical isolation needs for other conditions.
• Adequate levels of custody and healthcare staffing must be maintained to ensure safe operation of the facility, and options to practice social distancing through work alternatives such as working from home or reduced/alternate schedules are limited for many staff roles.
• Correctional and detention facilities can be complex, multi-employer settings that include government and private employers. Each is organizationally distinct and responsible for its own operational, personnel, and occupational health protocols and may be prohibited from issuing guidance or providing services to other employers or their staff within the same setting. Similarly, correctional and detention facilities may house individuals from multiple law enforcement agencies or jurisdictions subject to different policies and procedures.
• Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19.
• Because limited outside information is available to many incarcerated/detained persons, unease and misinformation regarding the potential for COVID-19 spread may be high, potentially creating security and morale challenges.
• The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and is determined by the supplies provided in the facility and by security considerations. Many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants.
• Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation.
CDC has issued separate COVID-19 guidance addressing healthcare infection control and clinical care of COVID-19 cases as well as close contacts of cases in community-based settings. Where relevant, community-focused guidance documents are referenced in this document and should be monitored regularly for updates, but they may require adaptation for correctional and detention settings.
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This guidance document provides additional recommended best practices specifically for correctional and detention facilities. At this time, different facility types (e.g., prison vs. jail) and sizes are not differentiated. Administrators and agencies should adapt these guiding principles to the specific needs of their facility.
What topics does this guidance include?
The guidance below includes detailed recommendations on the following topics related to COVID-19 in correctional and detention settings:
√ Operational and communications preparations for COVID-19
√ Enhanced cleaning/disinfecting and hygiene practices
√ Social distancing strategies to increase space between individuals in the facility
√ How to limit transmission from visitors
√ Infection control, including recommended personal protective equipment (PPE) and potential alternatives during PPE shortages
√ Verbal screening and temperature check protocols for incoming incarcerated/detained individuals, staff, and visitors
√ Medical isolation of confirmed and suspected cases and quarantine of contacts, including considerations for cohorting when individual spaces are limited
√ Healthcare evaluation for suspected cases, including testing for COVID-19
√ Clinical care for confirmed and suspected cases
√ Considerations for persons at higher risk of severe disease from COVID-19
Definitions of Commonly Used Terms
Close contact of a COVID-19 case—In the context of COVID-19, an individual is considered a close contact if they a) have been within approximately 6 feet of a COVID-19 case for a prolonged period of time or b) have had direct contact with infectious secretions from a COVID-19 case (e.g., have been coughed on). Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
Cohorting—Cohorting refers to the practice of isolating multiple laboratory-confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group. Ideally, cases should be isolated individually, and close contacts should be quarantined individually. However, some correctional facilities and detention centers do not have enough individual cells to do so and must consider cohorting as an alternative. See Quarantine and Medical Isolation sections below for specific details about ways to implement cohorting to minimize the risk of disease spread and adverse health outcomes.
Community transmission of COVID-19—Community transmission of COVID-19 occurs when individuals acquire the disease through contact with someone in their local community, rather than through travel to an affected location. Once community transmission is identified in a particular area, correctional facilities and detention centers are more likely to start seeing cases inside their walls. Facilities should consult with local public health departments if assistance is needed in determining how to define “local community” in the context of COVID-19 spread. However, because all states have reported cases, all facilities should be vigilant for introduction into their populations.
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Confirmed vs. Suspected COVID-19 case—A confirmed case has received a positive result from a COVID-19 laboratory test, with or without symptoms. A suspected case shows symptoms of COVID-19 but either has not been tested or is awaiting test results. If test results are positive, a suspected case becomes a confirmed case.
Incarcerated/detained persons—For the purpose of this document, “incarcerated/detained persons” refers to persons held in a prison, jail, detention center, or other custodial setting where these guidelines are generally applicable. The term includes those who have been sentenced (i.e., in prisons) as well as those held for pre-trial (i.e., jails) or civil purposes (i.e, detention centers). Although this guidance does not specifically reference individuals in every type of custodial setting (e.g., juvenile facilities, community confinement facilities), facility administrators can adapt this guidance to apply to their specific circumstances as needed.
Medical Isolation—Medical isolation refers to confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission. Medical isolation ends when the individual meets pre-established clinical and/or testing criteria for release from isolation, in consultation with clinical providers and public health officials (detailed in guidance below). In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Staff are encouraged to use the term “medical isolation” to avoid confusion.
Quarantine—Quarantine refers to the practice of confining individuals who have had close contact with a COVID-19 case to determine whether they develop symptoms of the disease. Quarantine for COVID-19 should last for a period of 14 days. Ideally, each quarantined individual would be quarantined in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, the individual should be placed under medical isolation and evaluated for COVID-19. If symptoms do not develop, movement restrictions can be lifted, and the individual can return to their previous residency status within the facility.
Social Distancing—Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19. Additional information about social distancing, including information on its use to reduce the spread of other viral illnesses, is available in this CDC publication.
Staff—In this document, “staff” refers to all public sector employees as well as those working for a private contractor within a correctional facility (e.g., private healthcare or food service). Except where noted, “staff” does not distinguish between healthcare, custody, and other types of staff including private facility operators.
Symptoms—Symptoms of COVID-19 include fever, cough, and shortness of breath. Like other respiratory infections, COVID-19 can vary in severity from mild to severe. When severe, pneumonia, respiratory failure, and death are possible. COVID-19 is a novel disease, therefore the full range of signs and symptoms, the clinical course of the disease, and the individuals and populations most at risk for disease and complications are not yet fully understood. Monitor the CDC website for updates on these topics.
Facilities with Limited Onsite Healthcare Services
Although many large facilities such as prisons and some jails usually employ onsite healthcare staff and have the capacity to evaluate incarcerated/detained persons for potential illness within a dedicated healthcare space, many smaller facilities do not. Some of these facilities have access to on-call healthcare staff or providers who visit the facility every few days. Others have neither onsite healthcare capacity nor onsite medical isolation/quarantine space and must transfer ill patients to other correctional or detention facilities or local hospitals for evaluation and care.
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The majority of the guidance below is designed to be applied to any correctional or detention facility, either as written or with modifications based on a facility’s individual structure and resources. However, topics related to healthcare evaluation and clinical care of confirmed and suspected COVID-19 cases and their close contacts may not apply directly to facilities with limited or no onsite healthcare services. It will be especially important for these types of facilities to coordinate closely with their state, local, tribal, and/or territorial health department when they encounter confirmed or suspected cases among incarcerated/detained persons or staff, in order to ensure effective medical isolation and quarantine, necessary medical evaluation and care, and medical transfer if needed. The guidance makes note of strategies tailored to facilities without onsite healthcare where possible.
Note that all staff in any sized facility, regardless of the presence of onsite healthcare services, should observe guidance on recommended PPE in order to ensure their own safety when interacting with confirmed and suspected COVID-19 cases. Facilities should make contingency plans for the likely event of PPE shortages during the COVID-19 pandemic.
COVID-19 Guidance for Correctional Facilities
Guidance for correctional and detention facilities is organized into 3 sections: Operational Preparedness, Prevention, and Management of COVID-19. Recommendations across these sections can be applied simultaneously based on the progress of the outbreak in a particular facility and the surrounding community.
• Operational Preparedness. This guidance is intended to help facilities prepare for potential COVID-19 transmission in the facility. Strategies focus on operational and communications planning and personnel practices.
• Prevention. This guidance is intended to help facilities prevent spread of COVID-19 from outside the facility to inside. Strategies focus on reinforcing hygiene practices, intensifying cleaning and disinfection of the facility, screening (new intakes, visitors, and staff), continued communication with incarcerated/ detained persons and staff, and social distancing measures (increasing distance between individuals).
• Management. This guidance is intended to help facilities clinically manage confirmed and suspected COVID-19 cases inside the facility and prevent further transmission. Strategies include medical isolation and care of incarcerated/detained persons with symptoms (including considerations for cohorting), quarantine of cases’ close contacts, restricting movement in and out of the facility, infection control practices for individuals interacting with cases and quarantined contacts or contaminated items, intensified social distancing, and cleaning and disinfecting areas visited by cases.
Operational Preparedness
Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staff and incarcerated/detained persons about these preparations and how they may temporarily alter daily life.
Communication & Coordination
√ Develop information-sharing systems with partners. ο Identify points of contact in relevant state, local, tribal, and/or territorial public health departments before cases develop. Actively engage with the health department to understand in advance which entity has jurisdiction to implement public health control measures for COVID-19 in a particular correctional or detention facility.
ο Create and test communications plans to disseminate critical information to incarcerated/detained persons, staff, contractors, vendors, and visitors as the pandemic progresses.
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ο Communicate with other correctional facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among staff.
ο Where possible, put plans in place with other jurisdictions to prevent confirmed and suspected COVID-19 cases and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.
ο Stay informed about updates to CDC guidance via the CDC COVID-19 website as more information becomes known.
√ Review existing pandemic flu, all-hazards, and disaster plans, and revise for COVID-19. ο Ensure that physical locations (dedicated housing areas and bathrooms) have been identified to isolate confirmed COVID-19 cases and individuals displaying COVID-19 symptoms, and to quarantine known close contacts of cases. (Medical isolation and quarantine locations should be separate). The plan should include contingencies for multiple locations if numerous cases and/ or contacts are identified and require medical isolation or quarantine simultaneously. See Medical Isolation and Quarantine sections below for details regarding individual medical isolation and quarantine locations (preferred) vs. cohorting. ο Facilities without onsite healthcare capacity should make a plan for how they will ensure that suspected COVID-19 cases will be isolated, evaluated, tested (if indicated), and provided necessary medical care. ο Make a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity. ο Designate officials who will be authorized to make decisions about escalating or de-escalating response efforts as the epidemiologic context changes.
√ Coordinate with local law enforcement and court officials. ο Identify lawful alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of COVID-19 transmission. ο Explore strategies to prevent over-crowding of correctional and detention facilities during a community outbreak.
√ Post signage throughout the facility communicating the following: ο For all: symptoms of COVID-19 and hand hygiene instructions ο For incarcerated/detained persons: report symptoms to staff ο For staff: stay at home when sick; if symptoms develop while on duty, leave the facility as soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms including self-isolating at home, contacting their healthcare provider as soon as possible to determine whether they need to be evaluated and tested, and contacting their supervisor. ο Ensure that signage is understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
Personnel Practices
√ Review the sick leave policies of each employer that operates in the facility. ο Review policies to ensure that they actively encourage staff to stay home when sick. ο If these policies do not encourage staff to stay home when sick, discuss with the contract company. ο Determine which officials will have the authority to send symptomatic staff home.
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√ Identify staff whose duties would allow them to work from home. Where possible, allowing staff to work from home can be an effective social distancing strategy to reduce the risk of COVID-19 transmission. ο Discuss work from home options with these staff and determine whether they have the supplies and technological equipment required to do so. ο Put systems in place to implement work from home programs (e.g., time tracking, etc.).
√ Plan for staff absences. Staff should stay home when they are sick, or they may need to stay home to care for a sick household member or care for children in the event of school and childcare dismissals. ο Allow staff to work from home when possible, within the scope of their duties. ο Identify critical job functions and plan for alternative coverage by cross-training staff where possible. ο Determine minimum levels of staff in all categories required for the facility to function safely. If possible, develop a plan to secure additional staff if absenteeism due to COVID-19 threatens to bring staffing to minimum levels. ο Consider increasing keep on person (KOP) medication orders to cover 30 days in case of healthcare staff shortages.
√ Consider offering revised duties to staff who are at higher risk of severe illness with COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions including lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Facility administrators should consult with their occupational health providers to determine whether it would be allowable to reassign duties for specific staff members to reduce their likelihood of exposure to COVID-19.
√ Offer the seasonal influenza vaccine to all incarcerated/detained persons (existing population and new intakes) and staff throughout the influenza season. Symptoms of COVID-19 are similar to those of influenza. Preventing influenza cases in a facility can speed the detection of COVID-19 cases and reduce pressure on healthcare resources.
√ Reference the Occupational Safety and Health Administration website for recommendations regarding worker health.
√ Review CDC’s guidance for businesses and employers to identify any additional strategies the facility can use within its role as an employer.
Operations & Supplies
√ Ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility. ο Standard medical supplies for daily clinic needs ο Tissues ο Liquid soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. ο Hand drying supplies ο Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions) ο Cleaning supplies, including EPA-registered disinfectants effective against the virus that causes COVID-19
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ο Recommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls). See PPE section and Table 1 for more detailed information, including recommendations for extending the life of all PPE categories in the event of shortages, and when face masks are acceptable alternatives to N95s.
ο Sterile viral transport media and sterile swabs to collect nasopharyngeal specimens if COVID-19 testing is indicated
√ Make contingency plans for the probable event of PPE shortages during the COVID-19 pandemic, particularly for non-healthcare workers. ο See CDC guidance optimizing PPE supplies.
√ Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow. If soap and water are not available, CDC recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60% alcohol. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty.
√ Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing. (See Hygiene section below for additional detail regarding recommended frequency and protocol for hand washing.) ο Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing.
√ If not already in place, employers operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit tested for any respiratory protection they will need within the scope of their responsibilities.
√ Ensure that staff and incarcerated/detained persons are trained to correctly don, doff, and dispose of PPE that they will need to use within the scope of their responsibilities. See Table 1 for recommended PPE for incarcerated/detained persons and staff with varying levels of contact with COVID-19 cases or their close contacts.
Prevention
Cases of COVID-19 have been documented in all 50 US states. Correctional and detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies.
Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified. Both good hygiene practices and social distancing are critical in preventing further transmission.
Operations
√ Stay in communication with partners about your facility’s current situation. ο State, local, territorial, and/or tribal health departments ο Other correctional facilities
√ Communicate with the public about any changes to facility operations, including visitation programs.
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√ Restrict transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding. ο Strongly consider postponing non-urgent outside medical visits. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ Implement lawful alternatives to in-person court appearances where permissible.
√ Where relevant, consider suspending co-pays for incarcerated/detained persons seeking medical evaluation for respiratory symptoms.
√ Limit the number of operational entrances and exits to the facility.
Cleaning and Disinfecting Practices
√ Even if COVID-19 cases have not yet been identified inside the facility or in the surrounding community, begin implementing intensified cleaning and disinfecting procedures according to the recommendations below. These measures may prevent spread of COVID-19 if introduced.
√ Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates. ο Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones). ο Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs). ο Use household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19 as appropriate for the surface, following label instructions. This may require lifting restrictions on undiluted disinfectants. ο Labels contain instructions for safe and effective use of the cleaning product, including precautions that should be taken when applying the product, such as wearing gloves and making sure there is good ventilation during use.
√ Consider increasing the number of staff and/or incarcerated/detained persons trained and responsible for cleaning common areas to ensure continual cleaning of these areas throughout the day.
√ Ensure adequate supplies to support intensified cleaning and disinfection practices, and have a plan in place to restock rapidly if needed.
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Hygiene
√ Reinforce healthy hygiene practices, and provide and continually restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms and waiting rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).
√ Encourage all persons in the facility to take the following actions to protect themselves and others from COVID-19. Post signage throughout the facility, and communicate this information verbally on a regular basis. Sample signage and other communications materials are available on the CDC website. Ensure that materials can be understood by non-English speakers and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
ο Practice good cough etiquette: Cover your mouth and nose with your elbow (or ideally with a tissue) rather than with your hand when you cough or sneeze, and throw all tissues in the trash immediately after use.
ο Practice good hand hygiene: Regularly wash your hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing your nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage.
ο Avoid touching your eyes, nose, or mouth without cleaning your hands first. ο Avoid sharing eating utensils, dishes, and cups. ο Avoid non-essential physical contact.
√ Provide incarcerated/detained persons and staff no-cost access to: ο Soap—Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin, as this would discourage frequent hand washing.
ο Running water, and hand drying machines or disposable paper towels for hand washing ο Tissues and no-touch trash receptacles for disposal
√ Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions. Consider allowing staff to carry individual-sized bottles to maintain hand hygiene.
√ Communicate that sharing drugs and drug preparation equipment can spread COVID-19 due to potential contamination of shared items and close contact between individuals.
Prevention Practices for Incarcerated/Detained Persons
√ Perform pre-intake screening and temperature checks for all new entrants. Screening should take place in the sallyport, before beginning the intake process, in order to identify and immediately place individuals with symptoms under medical isolation. See Screening section below for the wording of screening questions and a recommended procedure to safely perform a temperature check. Staff performing temperature checks should wear recommended PPE (see PPE section below).
ο If an individual has symptoms of COVID-19 (fever, cough, shortness of breath):  Require the individual to wear a face mask.  Ensure that staff who have direct contact with the symptomatic individual wear recommended PPE.  Place the individual under medical isolation (ideally in a room near the screening location, rather than transporting the ill individual through the facility), and refer to healthcare staff for further evaluation. (See Infection Control and Clinical Care sections below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care.
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ο If an individual is a close contact of a known COVID-19 case (but has no COVID-19 symptoms):  Quarantine the individual and monitor for symptoms two times per day for 14 days. (See Quarantine section below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective quarantine and necessary medical care.
√ Implement social distancing strategies to increase the physical space between incarcerated/ detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms). Strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Not all strategies will be feasible in all facilities. Example strategies with varying levels of intensity include: ο Common areas:  Enforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area) ο Recreation:  Choose recreation spaces where individuals can spread out  Stagger time in recreation spaces  Restrict recreation space usage to a single housing unit per space (where feasible) ο Meals:  Stagger meals  Rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table)  Provide meals inside housing units or cells ο Group activities:  Limit the size of group activities  Increase space between individuals during group activities  Suspend group programs where participants are likely to be in closer contact than they are in their housing environment  Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out ο Housing:  If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.)  Arrange bunks so that individuals sleep head to foot to increase the distance between them  Rearrange scheduled movements to minimize mixing of individuals from different housing areas ο Medical:  If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider staggering sick call.  Designate a room near the intake area to evaluate new entrants who are flagged by the intake screening process for COVID-19 symptoms or case contact, before they move to other parts of the facility.
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√ Communicate clearly and frequently with incarcerated/detained persons about changes to their daily routine and how they can contribute to risk reduction.
√ Note that if group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.
√ Consider suspending work release programs and other programs that involve movement of incarcerated/detained individuals in and out of the facility.
√ Provide up-to-date information about COVID-19 to incarcerated/detained persons on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Reminders to report COVID-19 symptoms to staff at the first sign of illness
√ Consider having healthcare staff perform rounds on a regular basis to answer questions about COVID-19.
Prevention Practices for Staff
√ Remind staff to stay at home if they are sick. Ensure that staff are aware that they will not be able to enter the facility if they have symptoms of COVID-19, and that they will be expected to leave the facility as soon as possible if they develop symptoms while on duty.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all staff daily on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο In very small facilities with only a few staff, consider self-monitoring or virtual monitoring (e.g., reporting to a central authority via phone). ο Send staff home who do not clear the screening process, and advise them to follow CDCrecommended steps for persons who are ill with COVID-19 symptoms.
√ Provide staff with up-to-date information about COVID-19 and about facility policies on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Employers’ sick leave policy ο If staff develop a fever, cough, or shortness of breath while at work: immediately put on a face mask, inform supervisor, leave the facility, and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. ο If staff test positive for COVID-19: inform workplace and personal contacts immediately, and do not return to work until a decision to discontinue home medical isolation precautions is made. Monitor CDC guidance on discontinuing home isolation regularly as circumstances evolve rapidly. ο If a staff member is identified as a close contact of a COVID-19 case (either within the facility or in the community): self-quarantine at home for 14 days and return to work if symptoms do not develop. If symptoms do develop, follow CDC-recommended steps for persons who are ill with COVID-19 symptoms.
√ If a staff member has a confirmed COVID-19 infection, the relevant employers should inform other staff about their possible exposure to COVID-19 in the workplace, but should maintain confidentiality as required by the Americans with Disabilities Act. ο Employees who are close contacts of the case should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
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√ When feasible and consistent with security priorities, encourage staff to maintain a distance of 6 feet or more from an individual with respiratory symptoms while interviewing, escorting, or interacting in other ways.
√ Ask staff to keep interactions with individuals with respiratory symptoms as brief as possible.
Prevention Practices for Visitors
√ If possible, communicate with potential visitors to discourage contact visits in the interest of their own health and the health of their family members and friends inside the facility.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all visitors and volunteers on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο Staff performing temperature checks should wear recommended PPE. ο Exclude visitors and volunteers who do not clear the screening process or who decline screening.
√ Provide alcohol-based hand sanitizer with at least 60% alcohol in visitor entrances, exits, and waiting areas.
√ Provide visitors and volunteers with information to prepare them for screening. ο Instruct visitors to postpone their visit if they have symptoms of respiratory illness. ο If possible, inform potential visitors and volunteers before they travel to the facility that they should expect to be screened for COVID-19 (including a temperature check), and will be unable to enter the facility if they do not clear the screening process or if they decline screening. ο Display signage outside visiting areas explaining the COVID-19 screening and temperature check process. Ensure that materials are understandable for non-English speakers and those with low literacy.
√ Promote non-contact visits: ο Encourage incarcerated/detained persons to limit contact visits in the interest of their own health and the health of their visitors. ο Consider reducing or temporarily eliminating the cost of phone calls for incarcerated/detained persons. ο Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health and reduce exposure from direct contact with community visitors.
√ Consider suspending or modifying visitation programs, if legally permissible. For example, provide access to virtual visitation options where available. ο If moving to virtual visitation, clean electronic surfaces regularly. (See Cleaning guidance below for instructions on cleaning electronic surfaces.) ο Inform potential visitors of changes to, or suspension of, visitation programs. ο Clearly communicate any visitation program changes to incarcerated/detained persons, along with the reasons for them (including protecting their health and their family and community members’ health). ο If suspending contact visits, provide alternate means (e.g., phone or video visitation) for incarcerated/detained individuals to engage with legal representatives, clergy, and other individuals with whom they have legal right to consult.
NOTE: Suspending visitation would be done in the interest of incarcerated/detained persons’ physical health and the health of the general public. However, visitation is important to maintain mental health.
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If visitation is suspended, facilities should explore alternative ways for incarcerated/detained persons to communicate with their families, friends, and other visitors in a way that is not financially burdensome for them. See above suggestions for promoting non-contact visits.
√ Restrict non-essential vendors, volunteers, and tours from entering the facility.
Management
If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing cases and individuals with symptoms under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE.
Operations
√ Implement alternate work arrangements deemed feasible in the Operational Preparedness section.
√ Suspend all transfers of incarcerated/detained persons to and from other jurisdictions and facilities (including work release where relevant), unless necessary for medical evaluation, medical isolation/quarantine, care, extenuating security concerns, or to prevent overcrowding. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to appropriately isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ If possible, consider quarantining all new intakes for 14 days before they enter the facility’s general population (SEPARATELY from other individuals who are quarantined due to contact with a COVID-19 case). Subsequently in this document, this practice is referred to as routine intake quarantine.
√ When possible, arrange lawful alternatives to in-person court appearances.
√ Incorporate screening for COVID-19 symptoms and a temperature check into release planning. ο Screen all releasing individuals for COVID-19 symptoms and perform a temperature check. (See Screening section below.)  If an individual does not clear the screening process, follow the protocol for a suspected COVID-19 case—including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing.  If the individual is released before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care.  Before releasing an incarcerated/detained individual with COVID-19 symptoms to a communitybased facility, such as a homeless shelter, contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
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√ Coordinate with state, local, tribal, and/or territorial health departments. ο When a COVID-19 case is suspected, work with public health to determine action. See Medical Isolation section below. ο When a COVID-19 case is suspected or confirmed, work with public health to identify close contacts who should be placed under quarantine. See Quarantine section below. ο Facilities with limited onsite medical isolation, quarantine, and/or healthcare services should coordinate closely with state, local, tribal, and/or territorial health departments when they encounter a confirmed or suspected case, in order to ensure effective medical isolation or quarantine, necessary medical evaluation and care, and medical transfer if needed. See Facilities with Limited Onsite Healthcare Services section.
Hygiene
√ Continue to ensure that hand hygiene supplies are well-stocked in all areas of the facility. (See above.)
√ Continue to emphasize practicing good hand hygiene and cough etiquette. (See above.)
Cleaning and Disinfecting Practices
√ Continue adhering to recommended cleaning and disinfection procedures for the facility at large. (See above.)
√ Reference specific cleaning and disinfection procedures for areas where a COVID-19 case has spent time (below).
Medical Isolation of Confirmed or Suspected COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities with Limited Onsite Healthcare Services, or without sufficient space to implement effective medical isolation, should coordinate with local public health officials to ensure that COVID-19 cases will be appropriately isolated, evaluated, tested (if indicated), and given care.
√ As soon as an individual develops symptoms of COVID-19, they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.
√ Keep the individual’s movement outside the medical isolation space to an absolute minimum. ο Provide medical care to cases inside the medical isolation space. See Infection Control and Clinical Care sections for additional details. ο Serve meals to cases inside the medical isolation space. ο Exclude the individual from all group activities. ο Assign the isolated individual a dedicated bathroom when possible.
√ Ensure that the individual is wearing a face mask at all times when outside of the medical isolation space, and whenever another individual enters. Provide clean masks as needed. Masks should be changed at least daily, and when visibly soiled or wet.
√ Facilities should make every possible effort to place suspected and confirmed COVID-19 cases under medical isolation individually. Each isolated individual should be assigned their own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options.
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ο If cohorting is necessary:  Only individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort confirmed cases with suspected cases or case contacts.  Unless no other options exist, do not house COVID-19 cases with individuals who have an undiagnosed respiratory infection.  Ensure that cohorted cases wear face masks at all times.
√ In order of preference, individuals under medical isolation should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above. ο Safely transfer individual(s) to another facility with available medical isolation capacity in one of the above arrangements (NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
If the ideal choice does not exist in a facility, use the next best alternative.
√ If the number of confirmed cases exceeds the number of individual medical isolation spaces available in the facility, be especially mindful of cases who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other infected individuals. If cohorting is unavoidable, make all possible accommodations to prevent transmission of other infectious diseases to the higher-risk individual. (For example, allocate more space for a higher-risk individual within a shared medical isolation space.) ο Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Note that incarcerated/detained populations have higher prevalence of infectious and chronic diseases and are in poorer health than the general population, even at younger ages.
√ Custody staff should be designated to monitor these individuals exclusively where possible. These staff should wear recommended PPE as appropriate for their level of contact with the individual under medical isolation (see PPE section below) and should limit their own movement between different parts of the facility to the extent possible.
√ Minimize transfer of COVID-19 cases between spaces within the healthcare unit.
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√ Provide individuals under medical isolation with tissues and, if permissible, a lined no-touch trash receptacle. Instruct them to: ο Cover their mouth and nose with a tissue when they cough or sneeze ο Dispose of used tissues immediately in the lined trash receptacle ο Wash hands immediately with soap and water for at least 20 seconds. If soap and water are not available, clean hands with an alcohol-based hand sanitizer that contains at least 60% alcohol (where security concerns permit). Ensure that hand washing supplies are continually restocked.
√ Maintain medical isolation until all the following criteria have been met. Monitor the CDC website for updates to these criteria.
For individuals who will be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  The individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart
For individuals who will NOT be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  At least 7 days have passed since the first symptoms appeared
For individuals who had a confirmed positive COVID-19 test but never showed symptoms: ο At least 7 days have passed since the date of the individual’s first positive COVID-19 test AND ο The individual has had no subsequent illness
√ Restrict cases from leaving the facility while under medical isolation precautions, unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns. ο If an incarcerated/detained individual who is a COVID-19 case is released from custody during their medical isolation period, contact public health to arrange for safe transport and continuation of necessary medical care and medical isolation as part of release planning.
Cleaning Spaces where COVID-19 Cases Spent Time
Thoroughly clean and disinfect all areas where the confirmed or suspected COVID-19 case spent time. Note—these protocols apply to suspected cases as well as confirmed cases, to ensure adequate disinfection in the event that the suspected case does, in fact, have COVID-19. Refer to the Definitions section for the distinction between confirmed and suspected cases.
ο Close off areas used by the infected individual. If possible, open outside doors and windows to increase air circulation in the area. Wait as long as practical, up to 24 hours under the poorest air exchange conditions (consult CDC Guidelines for Environmental Infection Control in Health-Care Facilities for wait time based on different ventilation conditions), before beginning to clean and disinfect, to minimize potential for exposure to respiratory droplets.
ο Clean and disinfect all areas (e.g., cells, bathrooms, and common areas) used by the infected individual, focusing especially on frequently touched surfaces (see list above in Prevention section).
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√ Hard (non-porous) surface cleaning and disinfection ο If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection. ο For disinfection, most common EPA-registered household disinfectants should be effective. Choose cleaning products based on security requirements within the facility.  Consult a list of products that are EPA-approved for use against the virus that causes COVID-19. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, etc.).  Diluted household bleach solutions can be used if appropriate for the surface. Follow the manufacturer’s instructions for application and proper ventilation, and check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted. Prepare a bleach solution by mixing:
- 5 tablespoons (1/3rd cup) bleach per gallon of water or
- 4 teaspoons bleach per quart of water
√ Soft (porous) surface cleaning and disinfection ο For soft (porous) surfaces such as carpeted floors and rugs, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning:  If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely.  Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 and are suitable for porous surfaces.
√ Electronics cleaning and disinfection ο For electronics such as tablets, touch screens, keyboards, and remote controls, remove visible contamination if present.  Follow the manufacturer’s instructions for all cleaning and disinfection products.  Consider use of wipeable covers for electronics.  If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Additional information on cleaning and disinfection of communal facilities such can be found on CDC’s website.
√ Ensure that staff and incarcerated/detained persons performing cleaning wear recommended PPE. (See PPE section below.)
√ Food service items. Cases under medical isolation should throw disposable food service items in the trash in their medical isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from a COVID-19 cases can be washed with other individuals’ laundry. ο Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
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Case 1:20-cv-21457-KMW Document 1-6 Entered on FLSD Docket 04/05/2020 Page 20 of 27
ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
√ Consult cleaning recommendations above to ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case.
Quarantining Close Contacts of COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity, or without sufficient space to implement effective quarantine, should coordinate with local public health officials to ensure that close contacts of COVID-19 cases will be effectively quarantined and medically monitored.
√ Incarcerated/detained persons who are close contacts of a confirmed or suspected COVID-19 case (whether the case is another incarcerated/detained person, staff member, or visitor) should be placed under quarantine for 14 days (see CDC guidelines). ο If an individual is quarantined due to contact with a suspected case who is subsequently tested for COVID-19 and receives a negative result, the quarantined individual should be released from quarantine restrictions.
√ In the context of COVID-19, an individual (incarcerated/detained person or staff) is considered a close contact if they: ο Have been within approximately 6 feet of a COVID-19 case for a prolonged period of time OR ο Have had direct contact with infectious secretions of a COVID-19 case (e.g., have been coughed on)
Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
√ Keep a quarantined individual’s movement outside the quarantine space to an absolute minimum. ο Provide medical evaluation and care inside or near the quarantine space when possible. ο Serve meals inside the quarantine space. ο Exclude the quarantined individual from all group activities. ο Assign the quarantined individual a dedicated bathroom when possible.
√ Facilities should make every possible effort to quarantine close contacts of COVID-19 cases individually. Cohorting multiple quarantined close contacts of a COVID-19 case could transmit COVID-19 from those who are infected to those who are uninfected. Cohorting should only be practiced if there are no other available options. ο If cohorting of close contacts under quarantine is absolutely necessary, symptoms of all individuals should be monitored closely, and individuals with symptoms of COVID-19 should be placed under medical isolation immediately. ο If an entire housing unit is under quarantine due to contact with a case from the same housing unit, the entire housing unit may need to be treated as a cohort and quarantine in place. ο Some facilities may choose to quarantine all new intakes for 14 days before moving them to the facility’s general population as a general rule (not because they were exposed to a COVID-19 case). Under this scenario, avoid mixing individuals quarantined due to exposure to a COVID-19 case with individuals undergoing routine intake quarantine.
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ο If at all possible, do not add more individuals to an existing quarantine cohort after the 14-day quarantine clock has started.
√ If the number of quarantined individuals exceeds the number of individual quarantine spaces available in the facility, be especially mindful of those who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other quarantined individuals. If cohorting is unavoidable, make all possible accommodations to reduce exposure risk for the higher-risk individuals. (For example, intensify social distancing strategies for higher-risk individuals.)
√ In order of preference, multiple quarantined individuals should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls, a solid door that closes fully, and at least 6 feet of personal space assigned to each individual in all directions ο As a cohort, in a large, well-ventilated cell with solid walls and at least 6 feet of personal space assigned to each individual in all directions, but without a solid door ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells creating at least 6 feet of space between individuals. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section to maintain at least 6 feet of space between individuals housed in the same cell. ο As a cohort, in individuals’ regularly assigned housing unit but with no movement outside the unit (if an entire housing unit has been exposed). Employ social distancing strategies related to housing in the Prevention section above to maintain at least 6 feet of space between individuals. ο Safely transfer to another facility with capacity to quarantine in one of the above arrangements
(NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
√ Quarantined individuals should wear face masks if feasible based on local supply, as source control, under the following circumstances (see PPE section and Table 1): ο If cohorted, quarantined individuals should wear face masks at all times (to prevent transmission from infected to uninfected individuals). ο If quarantined separately, individuals should wear face masks whenever a non-quarantined individual enters the quarantine space. ο All quarantined individuals should wear a face mask if they must leave the quarantine space for any reason. ο Asymptomatic individuals under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear face masks.
√ Staff who have close contact with quarantined individuals should wear recommended PPE if feasible based on local supply, feasibility, and safety within the scope of their duties (see PPE section and Table 1). ο Staff supervising asymptomatic incarcerated/detained persons under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear PPE.
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√ Quarantined individuals should be monitored for COVID-19 symptoms twice per day, including temperature checks. ο If an individual develops symptoms, they should be moved to medical isolation immediately and further evaluated. (See Medical Isolation section above.) ο See Screening section for a procedure to perform temperature checks safely on asymptomatic close contacts of COVID-19 cases.
√ If an individual who is part of a quarantined cohort becomes symptomatic: ο If the individual is tested for COVID-19 and tests positive: the 14-day quarantine clock for the remainder of the cohort must be reset to 0. ο If the individual is tested for COVID-19 and tests negative: the 14-day quarantine clock for this individual and the remainder of the cohort does not need to be reset. This individual can return from medical isolation to the quarantined cohort for the remainder of the quarantine period. ο If the individual is not tested for COVID-19: the 14-day quarantine clock for the remainder of the cohort must be reset to 0.
√ Restrict quarantined individuals from leaving the facility (including transfers to other facilities) during the 14-day quarantine period, unless released from custody or a transfer is necessary for medical care, infection control, lack of quarantine space, or extenuating security concerns.
√ Quarantined individuals can be released from quarantine restrictions if they have not developed symptoms during the 14-day quarantine period.
√ Meals should be provided to quarantined individuals in their quarantine spaces. Individuals under quarantine should throw disposable food service items in the trash. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from quarantined individuals can be washed with other individuals’ laundry. ο Individuals handling laundry from quarantined persons should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
Management of Incarcerated/Detained Persons with COVID-19 Symptoms
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity or without sufficient space for medical isolation should coordinate with local public health officials to ensure that suspected COVID-19 cases will be effectively isolated, evaluated, tested (if indicated), and given care.
√ If possible, designate a room near each housing unit for healthcare staff to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Incarcerated/detained individuals with COVID-19 symptoms should wear a face mask and should be placed under medical isolation immediately. Discontinue the use of a face mask if it inhibits breathing. See Medical Isolation section above.
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√ Medical staff should evaluate symptomatic individuals to determine whether COVID-19 testing is indicated. Refer to CDC guidelines for information on evaluation and testing. See Infection Control and Clinical Care sections below as well.
√ If testing is indicated (or if medical staff need clarification on when testing is indicated), contact the state, local, tribal, and/or territorial health department. Work with public health or private labs as available to access testing supplies or services. ο If the COVID-19 test is positive, continue medical isolation. (See Medical Isolation section above.) ο If the COVID-19 test is negative, return the individual to their prior housing assignment unless they require further medical assessment or care.
Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms
√ Provide clear information to incarcerated/detained persons about the presence of COVID-19 cases within the facility, and the need to increase social distancing and maintain hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19. ο Ensure that information is provided in a manner that can be understood by non-English speaking individuals and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
√ Implement daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that incarcerated/detained individuals are not notifying staff of symptoms. See Screening section for a procedure to safely perform a temperature check.
√ Consider additional options to intensify social distancing within the facility.
Management Strategies for Staff
√ Provide clear information to staff about the presence of COVID-19 cases within the facility, and the need to enforce social distancing and encourage hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19 from staff.
√ Staff identified as close contacts of a COVID-19 case should self-quarantine at home for 14 days and may return to work if symptoms do not develop. ο See above for definition of a close contact. ο Refer to CDC guidelines for further recommendations regarding home quarantine for staff.
Infection Control
Infection control guidance below is applicable to all types of correctional facilities. Individual facilities should assess their unique needs based on the types of exposure staff and incarcerated/ detained persons may have with confirmed or suspected COVID-19 cases.
√ All individuals who have the potential for direct or indirect exposure to COVID-19 cases or infectious materials (including body substances; contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air) should follow infection control practices outlined in the CDC Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. Monitor these guidelines regularly for updates.
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ο Implement the above guidance as fully as possible within the correctional/detention context. Some of the specific language may not apply directly to healthcare settings within correctional facilities and detention centers, or to facilities without onsite healthcare capacity, and may need to be adapted to reflect facility operations and custody needs.
ο Note that these recommendations apply to staff as well as to incarcerated/detained individuals who may come in contact with contaminated materials during the course of their work placement in the facility (e.g., cleaning).
√ Staff should exercise caution when in contact with individuals showing symptoms of a respiratory infection. Contact should be minimized to the extent possible until the infected individual is wearing a face mask. If COVID-19 is suspected, staff should wear recommended PPE (see PPE section).
√ Refer to PPE section to determine recommended PPE for individuals persons in contact with confirmed COVID-19 cases, contacts, and potentially contaminated items.
Clinical Care of COVID-19 Cases
√ Facilities should ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms. ο If a facility is not able to provide such evaluation and treatment, a plan should be in place to safely transfer the individual to another facility or local hospital. ο The initial medical evaluation should determine whether a symptomatic individual is at higher risk for severe illness from COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.
√ Staff evaluating and providing care for confirmed or suspected COVID-19 cases should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations.
√ Healthcare staff should evaluate persons with respiratory symptoms or contact with a COVID-19 case in a separate room, with the door closed if possible, while wearing recommended PPE and ensuring that the suspected case is wearing a face mask. ο If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Clinicians are strongly encouraged to test for other causes of respiratory illness (e.g., influenza).
√ The facility should have a plan in place to safely transfer persons with severe illness from COVID-19 to a local hospital if they require care beyond what the facility is able to provide.
√ When evaluating and treating persons with symptoms of COVID-19 who do not speak English, using a language line or provide a trained interpreter when possible.
Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
√ Ensure that all staff (healthcare and non-healthcare) and incarcerated/detained persons who will have contact with infectious materials in their work placements have been trained to correctly don, doff, and dispose of PPE relevant to the level of contact they will have with confirmed and suspected COVID-19 cases.
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ο Ensure that staff and incarcerated/detained persons who require respiratory protection (e.g., N95s) for their work responsibilities have been medically cleared, trained, and fit-tested in the context of an employer’s respiratory protection program.
ο For PPE training materials and posters, please visit the CDC website on Protecting Healthcare Personnel.
√ Ensure that all staff are trained to perform hand hygiene after removing PPE.
√ If administrators anticipate that incarcerated/detained persons will request unnecessary PPE, consider providing training on the different types of PPE that are needed for differing degrees of contact with COVID-19 cases and contacts, and the reasons for those differences (see Table 1). Monitor linked CDC guidelines in Table 1 for updates to recommended PPE.
√ Keep recommended PPE near the spaces in the facility where it could be needed, to facilitate quick access in an emergency.
√ Recommended PPE for incarcerated/detained individuals and staff in a correctional facility will vary based on the type of contact they have with COVID-19 cases and their contacts (see Table 1). Each type of recommended PPE is defined below. As above, note that PPE shortages are anticipated in every category during the COVID-19 response. ο N95 respirator
See below for guidance on when face masks are acceptable alternatives for N95s. N95 respirators should be prioritized when staff anticipate contact with infectious aerosols from a COVID-19 case. ο Face mask ο Eye protection—goggles or disposable face shield that fully covers the front and sides of the face ο A single pair of disposable patient examination gloves
Gloves should be changed if they become torn or heavily contaminated. ο Disposable medical isolation gown or single-use/disposable coveralls, when feasible
 If custody staff are unable to wear a disposable gown or coveralls because it limits access to their duty belt and gear, ensure that duty belt and gear are disinfected after close contact with the individual. Clean and disinfect duty belt and gear prior to reuse using a household cleaning spray or wipe, according to the product label.
 If there are shortages of gowns, they should be prioritized for aerosol-generating procedures, care activities where splashes and sprays are anticipated, and high-contact patient care activities that provide opportunities for transfer of pathogens to the hands and clothing of staff.
√ Note that shortages of all PPE categories are anticipated during the COVID-19 response, particularly for non-healthcare workers. Guidance for optimizing the supply of each category can be found on CDC’s website: ο Guidance in the event of a shortage of N95 respirators  Based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for staff engaging in activities that would expose them to respiratory aerosols, which pose the highest exposure risk. ο Guidance in the event of a shortage of face masks ο Guidance in the event of a shortage of eye protection ο Guidance in the event of a shortage of gowns/coveralls
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Table 1. Recommended Personal Protective Equipment (PPE) for Incarcerated/Detained Persons and Staff in a Correctional Facility during the COVID-19 Response

Classification of Individual Wearing PPE

N95 respirator

Face mask

Eye Protection

Gloves

Gown/ Coveralls

Incarcerated/Detained Persons

Asymptomatic incarcerated/detained persons (under Apply face masks for source control as feasible based on local supply, quarantine as close contacts of a COVID-19 case*) especially if housed as a cohort

Incarcerated/detained persons who are confirmed or

suspected COVID-19 cases, or showing symptoms of

–



–

–

–

COVID-19

Incarcerated/detained persons in a work placement

handling laundry or used food service items from a

–

–

–





COVID-19 case or case contact

Incarcerated/detained persons in a work placement Additional PPE may be needed based on

cleaning areas where a COVID-19 case has spent time the product label. See CDC guidelines for





more details.

Staff

Staff having direct contact with asymptomatic incarcerated/detained persons under quarantine as close contacts of a COVID-19 case* (but not performing temperature checks or providing medical care)

–

Face mask, eye protection, and gloves as local supply and scope of duties allow.

–

Staff performing temperature checks on any group

of people (staff, visitors, or incarcerated/detained persons), or providing medical care to asymptomatic

–

quarantined persons









Staff having direct contact with (including transport)

or offering medical care to confirmed or suspected

**

COVID-19 cases (see CDC infection control guidelines)







Staff present during a procedure on a confirmed

or suspected COVID-19 case that may generate respiratory aerosols (see CDC infection control



–







guidelines)

Staff handling laundry or used food service items from a COVID-19 case or case contact

–

–

–





Staff cleaning an area where a COVID-19 case has

Additional PPE may be needed based on

spent time

the product label. See CDC guidelines for





more details.

* If a facility chooses to routinely quarantine all new intakes (without symptoms or known exposure to a COVID-19 case) before integrating into the facility’s general population, face masks are not necessary.
** A NIOSH-approved N95 is preferred. However, based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for procedures that are likely to generate respiratory aerosols, which would pose the highest exposure risk to staff.

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Verbal Screening and Temperature Check Protocols for Incarcerated/Detained Persons, Staff, and Visitors
The guidance above recommends verbal screening and temperature checks for incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody. Below, verbal screening questions for COVID-19 symptoms and contact with known cases, and a safe temperature check procedure are detailed. √ Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include
the following questions: ο Today or in the past 24 hours, have you had any of the following symptoms?  Fever, felt feverish, or had chills?  Cough?  Difficulty breathing? ο In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)?
√ The following is a protocol to safely check an individual’s temperature: ο Perform hand hygiene ο Put on a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), gown/coveralls, and a single pair of disposable gloves ο Check individual’s temperature ο If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned routinely as recommended by CDC for infection control. ο Remove and discard PPE ο Perform hand hygiene
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EXHIBIT 4

4/4/2020Case 1:20D-occtvo-rs2i1n 4NY5C7H-KosMpitaWls, JaDilso, acnudmSheelntetrs1C-a7ll onEthnetCeitryetodTaokne MFoLreSADggrDesosicvekAecttio0n4to/0C5om/2b0at2th0e SpPreaadgoef C2oroonfa5virus
Anyone can publish on Medium per our Policies, but we don’t fact-check every story. For more info about the coronavirus, see cdc.gov.
Doctors in NYC Hospitals, Jails, and Shelters Call on the City to Take More Aggressive Action to Combat the Spread of Coronavirus
Brad Lander Follow Mar 12 · 3 min read
From NYC Council Members Brad Lander and Ritchie Torres:

https://medium.com/@bradlander/doctors-in-nyc-hospitals-jails-and-shelters-call-on-the-city-to-take-more-aggressive-action-to-fb75f0b131c2

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4/4/2020Case 1:20D-occtvo-rs2i1n 4NY5C7H-KosMpitaWls, JaDilso, acnudmSheelntetrs1C-a7ll onEthnetCeitryetodTaokne MFoLreSADggrDesosicvekAecttio0n4to/0C5om/2b0at2th0e SpPreaadgoef C3oroonfa5virus
As public representatives, we have been talking with constituents, public health experts, schools, and city officials about how to balance the urgent need to slow the spread of coronavirus with the need to continue providing services, maintain public order, and lessen the hardships on families and vulnerable populations. In that spirit, we are sharing the following letter, provided to us by a group of doctors working in the City’s hospitals, jails, clinics and shelters, which calls for the City to rapidly take far more aggressive steps (as they term it: “enforced solidarity”) to halt community spread.
***
March 12, 2020
An Open Letter to Mayor de Blasio and City Officials
As doctors and public health officials working in the City’s hospitals, jails, clinics, and shelters, we are extremely anxious about the impact of the COVID-19 virus on vulnerable populations and by the City’s hesitance to take more dramatic action. Given the information we have about the exponential growth of the virus and the limited capacity of our health system to care for the number of people who will become sick and need care at the same time, we believe that aggressive measures must be taken now. Actions taken now to encourage and facilitate what we are calling enforced solidarity (a more accurate description than social distancing) will mitigate the impact of the virus on vulnerable populations and our health system.
We call on the City to:
Act immediately and boldly to slow the spread of the virus:
Suspend classes at public schools, while keeping schools open for emergency childcare for essential workers and vulnerable families. Keep childcare groups small, under 10 kids per group. Close schools immediately and reopen some as centers of family support and mitigation.
Order the NYPD to stop making low level arrests for violations and misdemeanors, in order to prevent the spread of the virus through our jails, courts, and precincts.

https://medium.com/@bradlander/doctors-in-nyc-hospitals-jails-and-shelters-call-on-the-city-to-take-more-aggressive-action-to-fb75f0b131c2

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4/4/2020Case 1:20D-occtvo-rs2i1n 4NY5C7H-KosMpitaWls, JaDilso, acnudmSheelntetrs1C-a7ll onEthnetCeitryetodTaokne MFoLreSADggrDesosicvekAecttio0n4to/0C5om/2b0at2th0e SpPreaadgoef C4oroonfa5virus
Order the courts to consider release for anyone in pretrial detention over 60. Administratively reschedule all criminal court proceedings for people who are not currently incarcerated. Reschedule all other court proceedings.
Urge businesses to have all non-essential workers work from home. Employers may have discretion over who is “essential,” but give guidance that only those providing services that must be maintained during a state of emergency should be considered essential.
Strongly advise people over 60 to avoid public transit.
Cancel all City events and revoke permits for events.
Ensure that medical personnel have adequate personal protective equipment.
Open a virus hotline for residents to be able to call a nurse and get a home visit if needed for quarantined people with moderate symptoms rather than bring people into the ER.
Order the Administration of Children’s Services (ACS) to stop requiring parents to attend groups and programs; halt non-emergency family court proceedings, guarantee tele-visitation for parents and children.
Take steps to strengthen the social safety net to protect vulnerable New Yorkers.
Turn schools into centers for community aid: food pantry, crisis navigation, and eventually satellite testing sites once we have capacity to test widely.
Urge the State to adopt paid sick leave for up to 2 weeks for all workers immediately.
Work with the State to institute an immediate moratorium on evictions and provide benefits for families and businesses.
Divert workers from other non-essential services to Naturally Occurring Retirement Communities and public housing to check on quarantined elderly. Can do by phone/remote to minimize unnecessary contact.
Increase Meals-on-Wheels service.

https://medium.com/@bradlander/doctors-in-nyc-hospitals-jails-and-shelters-call-on-the-city-to-take-more-aggressive-action-to-fb75f0b131c2

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4/4/2020Case 1:20D-occtvo-rs2i1n 4NY5C7H-KosMpitaWls, JaDilso, acnudmSheelntetrs1C-a7ll onEthnetCeitryetodTaokne MFoLreSADggrDesosicvekAecttio0n4to/0C5om/2b0at2th0e SpPreaadgoef C5oroonfa5virus
Increase staffing for the City’s mental health hotline to deal with increased anxiety and suicidality exacerbated by isolation and uncertainty. Take steps to address the digital divide, including providing burner cell phones at crisis centers and shelters for people who do not have cell phones. We are grateful for the City’s caution and attention to the impact of the coronavirus and associated response on vulnerable populations. We urge the City to begin taking more aggressive steps to shut down business as usual to slow community spread, while also increasing support for vulnerable populations. Sincerely, Doctors and public health officials working in NYC’s hospitals, jails, clinics, and shelters
Healthcare Jail Shelter Doctors
About Help Legal

https://medium.com/@bradlander/doctors-in-nyc-hospitals-jails-and-shelters-call-on-the-city-to-take-more-aggressive-action-to-fb75f0b131c2

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EXHIBIT 5

Case 1:20-cv-21457-KMW Document 1-8 Entered on FLSD Docket 04/05/2020 Page 2 of 10
March 25, 2020
Hon. Larry Hogan Governor of Maryland Annapolis, MD
Dear Governor Hogan:
We are writing as faculty members of the Johns Hopkins Bloomberg School of Public Health, School of Nursing and School of Medicine to express our urgent concern about the spread of COVID-19 in Maryland’s prisons, jails, and juvenile detention centers. As you know, COVID19 is highly contagious, difficult to prevent except through social distancing, and especially dangerous to individuals over age 60 or with a chronic disease. Moreover, recent data suggest that the virus can remain on surfaces for up to 72 hours, thus rendering social distancing less effective in circumstances where the virus is present.
Jails, prisons, detention facilities and other closed settings have long been known to be associated with high transmission probabilities for infectious diseases, including tuberculosis, multi-drug resistant tuberculosis, influenza, MRSA (methicillin resistant staph aureus), and viral hepatitis. Several deaths were reported in the US in immigration detention facilities associated with ARDS (acute respiratory distress syndrome) following influenza A, including a 16 year old immigrant child who died of untreated ARDS in custody in May 2019. ARDS is the lifethreatening complication of COVID-19 disease and has a 30% mortality given ideal care. A correctional officer in New York has also died of the disease.
The close quarters of jails and prisons, the inability to employ effective social distancing measures, and the many high-contact surfaces within facilities, make transmission of COVID-19 more likely. Soap and hand sanitizers are not freely available in some facilities. Hand sanitizers like Purell, are banned in many facilities, because they contain alcohol. Further, for incarcerated individuals who are infected or very sick, the ability properly to treat them and save their lives is very limited. Testing kits are in short supply, and prisons and jails have limited options for proper respiratory isolation.
A number of features of these facilities can heighten risks for exposure, acquisition, transmission, and clinical complications of COVID-19 and other infectious diseases. These include physical/mechanical risks such as overcrowding, population density in close confinement, insufficient ventilation, shared toilets, showers, and eating environments and limited availability of hygiene and personal protective equipment such as masks and gloves in some facilities. The high rate of turnover and population mixing of staff and detainees also increases likelihoods of exposure. This has led to prison outbreaks of COVID-19 in multiple detention facilities in China, associated with introduction into facilities by staff.
These populations are also at additional risk, due to high rates of chronic health conditions; substance use; mental health issues; and, particularly in prisons, aging and chronically ill populations who may be vulnerable to more severe illnesses after COVID-19 infection, and to death. Given that Maryland prisons, jails, and juvenile detention centers incarcerate high

Case 1:20-cv-21457-KMW Document 1-8 Entered on FLSD Docket 04/05/2020 Page 3 of 10
numbers of marginalized populations and African Americans will be disproportionately affected by these risks.
Prison, jail, and detention center staff may bring the virus into the facility and are also at risk of acquisition from infected incarcerated individuals. Once infected, staff may also transmit the virus back into the communities and to their families. As jail, prison, and detention center health care staff themselves get sick with COVID-19, workforce shortages will make it even more difficult to adequately address all the health care needs in facilities.
Every effort should be made to reduce exposure in jails and other detention facilities, and we appreciate the efforts thus far of administrators toward this goal. To ensure that there are no impediments for inmates to come forward when sick, health care must be available to inmates without co-pays. But there should also be efforts to reduce the state prison population as well. It may be extremely difficult, however, to achieve and sustain prevention of transmission in these closed settings and given the design feature of the facilities. Moreover, lockdowns and use of solitary confinement should not be used as a public health measure, both because they have limited effectiveness and because they are a severe infringement of the rights of incarcerated people. It is therefore an urgent priority in this time of national public health emergency to reduce the number of persons in detention as quickly as possible.
Treatment needs of infected incarcerated individuals also need to be met, including expanded arrangements with local hospitals. It is essential that these facilities, which are public institutions, be transparent about their plans for addressing COVID-19. Such transparency will help public health officials and families of incarcerated people know what facilities are doing, and it also can help jurisdictions across the state share information and best practices. Other counties across the country have shared their action plans with the public and Maryland should follow these examples.
We therefore urge you to take the following steps:
1. Require correctional facility administrators to make their plans for prevention and management of COVID-19 in their institutions publicly available, as the San Francisco Sheriff’s Department has done. Protocols should be in line with national CDC guidance. Frequently updated recommendations and model protocols are available from the National Commission on Correctional Health Care (https://www.ncchc.org/blog/covid-19-coronavirus-what-you-need-to-know-incorrections)
2. Ensure that intake screening protocols are updated to include COVID-specific questions.
3. Ensure the availability of sufficient soap and hand sanitizer for incarcerated individuals without charge; restrictions on alcohol (in hand sanitizers) should be suspended.
4. Implement other precautions to limit transmission within prisons and jails without relying on widespread use of lockdowns and solitary confinement. Additional precautions jointly issued by the Vera Institute of Justice and Community Oriented

Case 1:20-cv-21457-KMW Document 1-8 Entered on FLSD Docket 04/05/2020 Page 4 of 10
Correctional Health Services are available at https://cochs.org/files/covid-19/covid19-jails-prison-immigration.pdf 5. Consider pre-trial detention only in genuine cases of security concerns. Persons held for non-payment of fees and fines, or because of insufficient funds to pay bail, or parole or probation violations, should be prioritized for release. No one in these categories should be sent to jail 6. Expedite consideration of all older incarcerated individuals and those with chronic conditions predisposing to severe COVID-19 disease (heart disease, lung disease, diabetes, immune-compromise) for parole or other form of release from prison, with alternative forms of supervision and with supports in the community once released. Clemency power and expanded authority in Maryland law for administrative parole should be employed. 7. Invest in increased resources for discharge planning and re-entry transitions to facilitate prison release of people under these revised policies. 8. Arrange for COVID-19 testing of incarcerated individuals and correctional facility workers who become ill. 9. Cease any collection of fees or co-pays or medical care. 10. Seek a Medicaid 1135 waiver to enable hospitals to provide an appropriate level of care to incarcerated individuals who are sick. See https://cochs.org/files/medicaid/COVID-19-Justicie-Involved-1135-Waiver.pdf
This pandemic is shedding a bright light on the extent of the connection between all members of society: jails, prisons and other detention facilities are not separate, but are fully integrated with our community. As public health experts, we believe these steps are essential to support the health of incarcerated individuals, who are some of the most vulnerable people in our society; the vital personnel who work in prisons and jail; and all people in the state of Maryland. Our compassion for and treatment of these populations impact us all.
Thank you very much.
This letter represents the views of the following signatories, and do not necessarily reflect the views of The Johns Hopkins University
Sincerely,
Patricia Davidson, Dean Johns Hopkins School of Nursing
Joshua Sharfstein, Vice Dean for Public Health Practice and Community Engagement Johns Hopkins Bloomberg School of Public Health
David Celentano, Chair Department of Epidemiology Johns Hopkins Bloomberg School of Public Health
David Peters, Chair Department of International Health Johns Hopkins Bloomberg School of Public Health

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Colleen Barry, Chair Department of Health Policy & Management Johns Hopkins Bloomberg School of Public Health
Rajiv Rimal, Chair Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health
Marsha Wills-Karp, Chair Department of Environmental Health and Engineering Johns Hopkins Bloomberg School of Public Health
Karen Bandeen-Roche, Hurley Dorrier Professor & Chair Department of Biostatistics Johns Hopkins Bloomberg School of Public Health
M. Daniele Fallin, Chair Department of Mental Health Johns Hopkins Bloomberg School of Public Health
Jeffrey Kahn, Andreas C. Dracopoulos Director Johns Hopkins Berman Institute of Bioethics.
Leonard Rubenstein, Senior Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health
Carolyn Sufrin, Assistant Professor Department of Gynecology and Obstetrics Johns Hopkins School of Medicine
Susan Sherman, Professor Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health
Chris Beyrer, Desmond Tutu Professor of Public Health and Human Rights Department of Epidemiology Johns Hopkins Bloomberg School of Public Health
Gabriel Eber, Senior Associate Department of Epidemiology Johns Hopkins Bloomberg School of Public Health
cc: Robert Greene, Secretary of Department of Public Safety and Correctional Services David Blumberg, Chair, Maryland Parole Commission Sam Abed, Secretary, Department of Juvenile Services
For additional signature please see below

Case 1:20-cv-21457-KMW Document 1-8 Entered on FLSD Docket 04/05/2020 Page 6 of 10

Carl Latkin, Professor Department of Health, Behavior and Society Johns Hopkins School of Public Health

Caleb Alexander, Practicing General Internist

David Dowdy, Associate Professor

Department of Epidemiology

Department of Epidemiology

Johns Hopkins Bloomberg School of Public Health Johns Hopkins Bloomberg School of Public Health

Stefan Baral, Associate Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Heather McKay, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Andrea Wirtz, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Amal Wanigatunga, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Renee M. Johnson, Associate Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Lorraine T. Dean, Assistant Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Curtis Meinert, Professor Emertius Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Corinne Joshu, Associate Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Moyses Szklo, Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Alden L. Gross, Associate Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Allison McFall, Research Associate Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Colleen Hanrahan, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Josef Coresh, Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Antonio J. Trujillo, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Sarah Murray, Assistant Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Li-Ching Lee, Senior Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Courtland Robinson, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Nancy Glass, Professor Johns Hopkins School of Nursing

Yusra Shawar, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Maria Merritt, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Hannah Tappis, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Alan Regenberg, Associate Faculty Johns Hopkins Berman Institute of Bioethics

Andrew Azman, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Tener Goodwin Veenema, Professor Johns Hopkins School of Nursing

Amelia Buttress, Assistant Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Katherine Smith, Professor Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Ju Nyeong Park, Assistant Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Sean Allen, Assistant Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Carol Underwood, Assistant Professor Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Zoé Hendrickson, Assistant Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Jennifer L. Glick, Assistant Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Graham Mooney, Associate Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health Johns Hopkins School of Medicine

Janet Holbrook, Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Stella Babalola, Associate Professor Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Margaret E. Ensminger, Professor Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Elizabeth Hazel, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Safia Jiwani, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Angela KC, Associate Faculty Johns Hopkins Center for Global Health Johns Hopkins Bloomberg School of Public Health

Kawsar Talaat, Assistant Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Seema Subedi, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Linnea Zimmerman, Assistant Professor Department of Population, Family, and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Henry Perry, Senior Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Case 1:20-cv-21457-KMW Document 1-8 Entered on FLSD Docket 04/05/2020 Page 7 of 10

Alain Labrique, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Jean H. Humphrey, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Joanne Katz, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Cyrus Engineer, Associate Chair Academic Programs Johns Hopkins Bloomberg School of Public Health

Priyanka Agrawal, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Daniela C. Rodriguez, Associate Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Talata Sawadogo-Lewis, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Lara Ho, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Sara Benjamin-Neelon, Associate Professor Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Rupali J. Limaye, Associate Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Shaun Truelove, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Matthew Fentress, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Caroline Moreau, Associate Professor Department of Population, Family, and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Pamela Surkan, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Svea Closser, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Melissa A. Marx, Assistant Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Susan Rifkin, Senior Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Jean C. Sack, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Ummekulsoom Lalani, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Jessica Atwell, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Swetha Manochar, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

S. Wilson Beckham, Assistant Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Amita Gupta, Professor Johns Hopkins School of Medicine

Henry Kalter, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Allison Jeffery, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Janice Bowie, Professor Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Yunhee Kang, Assisant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Gulam Kibria, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Lori Heise, Professor Department of Population, Family, and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Rebecca Heidkamp, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Justin Mayhew, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Jennifer Lee, Research Associate Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Cesar Ugarte-Gil, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Sabriya Linton, Assistant Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Amber Mehmood, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Peter Winch, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Dustin Gibson, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Melissa Davey-Rothwell, Associate Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Kathleen Norton, Administrative Director Johns Hopkins Center for American Indian Health

Tamar Mendelson, Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Candelaria Vergara Coggiano, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Anna Durbin, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Johannes Thrul, Assistant Professor

Kristin Mmari, Associate Professor

Ashley Sheffel, Assistant Scientist

Case 1:20-cv-21457-KMW Document 1-8 Entered on FLSD Docket 04/05/2020 Page 8 of 10

Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Department of Population, Family, and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Department of International Health Johns Hopkins Bloomberg School of Public Health

Hanna Pickard, Bloomberg Distinguished Professor William Robert Brieger, Professor

Department of Philosophy

Department of International Health

Berman Institute of Bioethics

Johns Hopkins Bloomberg School of Public Health

Kristen Hurley, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Judith Bass, Associate Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Halida Akhter, Senior Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Nicholas Reed, Assistant Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Alan Scott, Professor Department of Molecular Microbiology and Immunology Johns Hopkins Bloomberg School of Public Health

John Jackson, Assistant Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Hima Patel, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Donatella Massai, Senior Researcher Department of International Health Johns Hopkins Bloomberg School of Public Health

Robin McKenzie, Associate Professor of Medicine Johns Hopkins University School of Medicine

Michelle Colder Carras, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

David A Sack, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Harsha Rajashekharaiah, Research Associate Department of International Health, Center for Humanitarian Health Johns Hopkins Bloomberg School of Public Health

Ann Yelmokas McDermott, Associate Scientist Department of International Health Johns Hopkins School of Public Health

Hilary Bok, Associate Professor, Philosophy Berman Institute of Bioethics Krieger School of Arts and Sciences

Kate Wright, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Cui Yang, Assistant Professor Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Alexa Edmier, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Rebecca Fix, Assistant Scientist Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Smisha Agarwal, Assistant Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Michelle Kaufman, Assistant Professor Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Alene Kennedy-Hendricks, Assistant Scientist Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Stephen Tamplin, Associate Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public He

Sara Bennett, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Adam Koon, Assistant Scientist Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Nancy Kass, Vice-Provost and Professor of Bioethics and Public Health Johns Hopkins University and Bloomberg School of Public Health

Hojoon Sohn, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Vidhi Maniar, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Keith West, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Li Liu, Associate Professor Department of Population, Family and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Melinda Munos, Assistant Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Alain Koffi, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Terrinieka Powell, Associate Professor Department of Population, Family and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Sarah Dalglish, Associate Professor Department of International Health Johns Hopkins School of Public Health

Ghassan Hamra, Assistant Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Keri Althoff, Associate Professor Department of Epidemiology Johns Hopkins School of Public Health

Kathleen Page, Associate Professor Johns Hopkins School of Medicine

Elizabeth Stuart, Professor Departments of Mental Health, Biostatistics, and Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Case 1:20-cv-21457-KMW Document 1-8 Entered on FLSD Docket 04/05/2020 Page 9 of 10

Beth McGinty, Associate Professor Department of Health, Policy and Management Johns Hopkins Bloomberg School of Public Health

Shruti Mehta, Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Yeeli Mui, Assistant Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Alex McCourt, Assistant Scientist Department of Health Policy & Management Johns Hopkins Bloomberg School of Public Health

Eric Bass, Professor of Medicine Johns Hopkins University School of Medicine

Karin Tobin, Associate Professor Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Lilly Engineer, Assistant Professor Department of Health Policy and Management Johns Hopkins School of Medicine and Bloomberg School of Public Health

Elizabeth Skinner, Senior Scientist Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Philip Anglewicz, Associate Professor Department of Population, Family and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Jennifer Wolff, Professor Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Joanne Rosen, Senior Lecturer Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Tricia Aung, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Sachini Bandara, Assistant Scientist Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Hossein Zare, Assistant Scientist Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Mark Van Natta, Associate Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Daniel Webster, Bloomberg Professor of American Health Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Danielle German, Associate Professor Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Cassandra Crifasi, Assistant Professor Center for Gun Policy and Research Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Emily Gurley, Associate Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Jonathan Golub, Professor Department of Medicine, Epidemiology, and International Health Johns Hopkins Bloomberg School of Public Health

Subhra Chakraborty, Associate Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Michael Rosenblum, Associate Professor Department of Biostatistics Johns Hopkins Bloomberg School of Public Health

Haneefa Saleem, Assistant Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Amy Knowlton, Professor Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Neha Shah, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Trang Nguyen, Assistant Scientist Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Ingo Ruczinski, Professor Department of Biostatistics Johns Hopkins Bloomberg School of Public Health

Krystal Lee, Research Associate Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Elizabeth Letourneau, Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Chiara Altare, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

William W Eaton, Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Diana Yeung, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Jia Ahmad, Research Associate Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Sheppard G. Kellam, Professor Emeritus Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Sarah Polk, Assistant Professor Centro SOL, Johns Hopkins School of Medicine

Kathleen Page, Associate Professor Johns Hopkins School of Medicine

Corinne Keet, Associate Professor Johns Hopkins School of Medicine Johns Hopkins Bloomberg School of Public Health

Rachel Chan Seay, Assistant Professor Department of Gynecology and Obstetrics Johns Hopkins School of Medicine

Amanda Latimore, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Avonne Connor, Assistant Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Gail Geller, Professor Department of Medicine Johns Hopkins University School of Medicine Berman Institute of Bioethics

Noel Mueller, Assistant Professor Department of Epidemiology Johns Hopkins School of Public Health

Case 1:20-cv-21457-KMW Document 1-8 Entered on FLSD Docket 04/05/2020 Page 10 of 10

Michele Decker, Associate Professor Department of Population, Family and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Becky Genberg, Assistant Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Cecilia Tomori, Director of Global Public Health and Community Health Johns Hopkins School of Nursing

Anne Burke, Associate Professor Department of Gynecology and Obstetrics Johns Hopkins School of Medicine

Anthony D. So, Professor of the Practice Department of International Health Johns Hopkins Bloomberg School of Public Health

Baldeep Dhaliwal, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Shea Littlepage, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Julie Denison, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Joseph Carrese, Professor Johns Hopkins School of Medicine

Julie Evans, Research Associate Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Sheree Schwartz, Assistant Scientist Department of Epidemiology Johns Hopkins School of Public Health

Timothy Shields, Associate Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Paul Spiegel, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Case 1:20-cv-21457-KMW Document 1-9 Entered on FLSD Docket 04/05/2020 Page 1 of 4
EXHIBIT 6

Case 1:20-cv-21457-KMW Document 1-9 Entered on FLSD Docket 04/05/2020 Page 2 of 4
Case 2:20-cv-00409-JLR-MAT Document 6 Filed 03/16/20 Page 1 of 3
Declaration of Dr. Marc Stern
I, Marc Stern, declare as follows:
1. I am a physician, board-specialized in internal medicine, specializing in correctional health care. I most recently served as the Assistant Secretary for Health Care at the Washington State Department of Corrections. I also have considerable familiarity with the immigration detention system. I served for four years as a medical subject matter expert for the Officer of Civil Rights and Civil Liberties, U.S. Department of Homeland Security, and as a medical subject matter expert for one year for the California Attorney General’s division responsible for monitoring the conditions of confinement in Immigration and Customs Enforcement (ICE) detention facilities. I have also served as a consultant to Human Rights Watch in their preparation of two reports on health-related conditions of confinement in ICE detention facilities. In those capacities, I have visited and examined more than 20 ICE detention facilities and reviewed hundreds of records, including medical records and detention death reviews of individuals in ICE detention. Attached as Exhibit A is a copy of my curriculum vitae.
2. COVID-19 is a serious disease and has reached pandemic status. At least 132,758 people around the world have received confirmed diagnoses of COVID 19 as of March 13, 2020, including 1,629 people in the United States. At least 4,955 people have died globally as a result of COVID-19 as of March 13, 2020, including 41 in the United States. These numbers will increase, perhaps exponentially.
3. COVID-19 is a novel virus. There is no vaccine for COVID-19, and there is no cure for COVID-19. No one has immunity. The only way to control the virus is to use preventive strategies, including social distancing.
4. The time course of the disease can be very rapid. Individuals can show the first symptoms of infection in as little as two days after exposure and their condition can seriously deteriorate in as little as five days (perhaps sooner) after that.
5. The effects of COVID-19 are very serious, especially for people who are most vulnerable. Vulnerable people include people over the age of 50, and those of any age with underlying health problems such as – but not limited to – weakened immune systems, hypertension, diabetes, blood, lung, kidney, heart, and liver disease, and possibly pregnancy.
6. Vulnerable people who are infected by the COVID-19 virus can experience severe respiratory illness, as well as damage to other major organs. Treatment for serious cases of COVID-19 requires significant advanced support, including ventilator assistance for respiration and intensive care support. An outbreak of COVID-19 could put significant pressure on or exceed the capacity of local health infrastructure.
7. Detention facilities are congregate environments, i.e. places where people live and sleep in close proximity. In such environments, infectious diseases that are transmitted via the air or touch are more likely to spread. This therefore presents an increased danger for the spread of COVID-

Case 1:20-Ccavs-2e124:5270--KcvM-0W040D9o-cJuLmR-eMnAt 1T-9DoEcnutemrednto6n FFLilSeDd 0D3o/c1k6e/2t 004/P0a5g/2e020of 3Page 3 of 4
19 if and when it is introduced into the facility. To the extent that detainees are housed in close quarters, unable to maintain a six-foot distance from others, and sharing or touching objects used by others, the risks of spread are greatly, if not exponentially, increased as already evidenced by spread of COVID-19 in another congregate environment: nursing homes and cruise ships.
8. Social distancing in ways that are recommended by public health officials can be difficult, if not impossible in detention facilities, placing people at risk, especially when the number of detainees is high.
9. For detainees who are at high risk of serious illness or death should they contract the COVID-19 virus, release from detention is a critically important way to meaningfully mitigate that risk. Additionally, the release of detainees who present a low risk of harm to the community is also an important mitigation strategy as it reduces the total number of detainees in a facility. Combined, this has a number of valuable effects on public health and public safety: it allows for greater social distancing, which reduces the chance of spread if virus is introduced; it allows easier provision of preventive measures such as soap for handwashing, cleaning supplies for surfaces, frequent laundering and showers, etc.; and it helps prevent overloading the work of detention staff such that they can continue to ensure the safety of detainees.
10. The release of detainees, especially those with increased health-related vulnerability, also supports the broader community because carceral and detention settings, regardless of the level of government authorities that oversee them, are integral parts of the community’s public health infrastructure. Reducing the spread and severity of infection in a Federal immigration detention center slows, if not reduces, the number of people who will become ill enough to require hospitalization, which in turn reduces the health and economic burden to the local community at large.
11. As a correctional public health expert, I recommend release of eligible individuals from detention, with priority given to the elderly and those with underlying medical conditions most vulnerable to serious illness or death if infected with COVID-19.
12. Conditions related to COVID-19 are changing rapidly and may change between the time I execute this Declaration and when this matter appears before the Court. One of the most worrisome changes would be confirmation of a case of COVID-19 within the detention center, either among staff or detainees. In the event of this occurring, and eligible detainees being quarantined or isolated due to possible exposure to the virus, I recommend that the detainee(s) be tested for the virus if testing is available. Armed with the results of that test if it is available, or in the absence of other instructions from the health authority of the municipality to which they will be returning or the Washington State public health authority, those who can easily return to a home without exposure to the public, should be released to that home for continued quarantine or isolation for the appropriate time period. All others can be released to appropriate housing as directed or arranged in coordination with the relevant health authority.
13. I have reviewed Plaintiffs’ complaint and on the basis of the claims presented, conclude that Plaintiffs have underlying medical conditions that increase the risk of serious illness or death if exposed to COVID-19. Due to the risks caused by the congregate environment in immigration

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detention, compounded by the marked increase in risk conferred by their underlying medical conditions, I recommend their release.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed this __15th___ day in March, 2020 in Tumwater, Washington.
____________________________ Dr. Marc Stern

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EXHIBIT 7

Case 1:20-cv-21457-KMW Document 1-10 Entered on FLSD Docket 04/05/2020 Page 2 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

COREAS, et al.,

Petitioners-Plaintiffs, v. BOUNDS, et al,

Civil Action No.:

Respondents-Defendants.

DECLARATION OF Ranit Mishori, MD, MHS, FAAFP I, Ranit Mishori, make the following declaration based on my personal knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 that the following is true and correct. I. Background
1. I am Dr. Ranit Mishori. I am a senior medical advisor at Physicians for Human Rights (PHR), and Professor of Family Medicine at the Georgetown University School of Medicine, where I am the director of the department’s Global Health Initiatives, Health Policy fellowship and our practice-based research network. A fellow of the American Academy of Family Physicians and Diplomate of the American Board of Family Medicine, I did my residency training at the Georgetown University/Providence Hospital Family Medicine Residency program. I received my medical degree from Georgetown University School of Medicine and a master’s degree in International Health from the Johns Hopkins Bloomberg School of Public Health, in the Disease Control and Prevention Track (focusing on the science of how to halt the spread of infectious disease).

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2. I am the faculty leader for Georgetown University School of Medicine’s Correctional Health Interest group, where I supervise medical students placed at various area jails, prisons and detention centers. In addition, I am the director of Georgetown University’s Asylum program which focuses on the care and medico-legal issues of asylum seekers, including immigration detention. I have written extensively and given talks and lectures about such issues nationally and internationally. In my role as senior medical advisor at PHR (and prior to that, as a consultant for PHR), I have reviewed and analyzed dozens of cases related to health outcomes of individuals in correctional facilities, and advised the organization and other partners (civil society, legal aid organizations and the media) about issues related to incarceration, including hunger strikes, medical care quality, communicable disease management, violence, and care of pregnant women in such settings.1
3. As an attending physician at the Georgetown University/Washington Hospital Center Family Medicine Residency Program, I work with urban underserved populations, including the homeless, formerly incarcerated individuals, immigrants and refugees. I routinely come in contact with victims of abuse, trauma and poverty where I regularly assess their medical as well as psycho-social needs in the context of their social-determinants of health (such as housing and incarceration).

1 See, e.g., Ranit Mishori, Risk Behind Bars: Coronavirus and Immigration Detention, The Hill (Mar. 17, 2020),

https://thehill.com/opinion/immigration/487986-risk-behind-bars-coronavirus-and-immigration-detention; Amanda

Holpuch, Coronavirus Inevitable in Prison-Like US Immigration Centers, Doctors Say, The Guardian (Mar. 11, 2020),

https://www.theguardian.com/world/2020/mar/11/coronavirus-outbreak-us-immigration-centers;

Abigail

Hauslohner, et al., Coronavirus Could Pose Serious Concern in ICE Jails, Immigration Courts, The Washington Post

(Mar. 12, 2020), https://www.washingtonpost.com/immigration/coronavirus-immigration jails/2020/03/12/44b5e56a-

646a-11ea-845d-e35b0234b136_story.html; Silvia Foster-Frau, Coronavirus Cases in Migrant Detention Facilities

Called ‘Inevitable’, Express News (Mar. 15, 2020) https://www.expressnews.com/news/us-world/border-

mexico/article/Whether-in-detention-or-in-Mexico-U-S-15129447.php.

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4. For four years I was an elected member of the American Academy of Family Physicians’ Commission on the Health of the Public and Science, where I chaired the Public Health Issues sub-committee. During that time, I was a one of the lead authors of the Academy’s comprehensive position paper on Incarceration and Health.
5. My CV is attached as Exhibit A. II. COVID-19
6. The novel coronavirus, officially known as SARS-CoV-2 (Coronavirus), causes a disease known as COVID-19. COVID-19 has now reached pandemic status. As of March 24, 2020, according to the World Health Organization (WHO), more than 334,000 people have been diagnosed with COVID-19 around the world and 14,652 have died.2 In the United States, about 31,537 people have been diagnosed and more than 400 people have died as of the same date.3 The numbers of infection and death in the United States are likely underestimated due to the lack of test kits available.
7. The transmission of Coronavirus is expected to grow exponentially. Nationally, projections by the Centers for Disease Control and Prevention (CDC) indicate that over 200 million people in the United States could be infected with Coronavirus over the course of the pandemic without effective public health intervention, with as many as 1.5 million deaths in certain projections.
2 See Novel Coronavirus (COVID-19) Situation, World Health Organization, https://experience.arcgis.com/experience/685d0ace521648f8a5beeeee1b9125cd, accessed Mar. 18, 2020 (at noon EDT). 3 See Mitch Smith, et al., U.S. Coronavirus Map: Cases Now Reported in All 50 States, The New York Times, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html?searchResultPosition=1, accessed Mar. 18, 2020 (at noon EDT).
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8. The novel coronavirus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but it also survives on surfaces for some period of time. The virus can cause severe damage to lung tissue, requiring an extensive period of rehabilitation, and in some cases, a permanent loss of respiratory capacity. The virus also targets the heart muscle, leading to myocarditis, or inflammation of the heart muscle. It is possible that people can transmit the virus before they start to show symptoms or for weeks after their symptoms resolve. In China, where Coronavirus originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. The “contagiousness” of this novel coronavirus—its R0 (the number of people who can get infected from a single infected person)—is twice that of the flu. Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. For this reason, only with aggressive testing for the virus can we track the disease, isolate those affected, and stop its spread.
9. COVID-19 is a serious disease, which can lead to respiratory failure, kidney failure, and death. Older patients and patients with chronic underlying conditions are at a particularly high risk for severe cases and complications. 4 The need for care, including intensive care, and the likelihood of death, is much higher from COVID-19 than from influenza. According to recent estimates, the fatality rate of people infected with COVID-19 is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems.
4 Fei Zhou, et al., Clinical Course and Risk Factors for Mortality of Adult Inpatients with COVID-19 in Wuhan, China, The Lancet (published online Mar. 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS01406736(20)30566-3/fulltext.
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According to preliminary data from China, serious illness, sometimes resulting in death, occurs in up to 16% of cases, with a higher rate among those older and high-risk individuals. 5
10. The CDC previously identified underlying medical conditions that may increase the risk of serious COVID-19 for individuals of any age, including: blood disorders, chronic kidney or liver disease, immunosuppression, endocrine disorders (including diabetes), metabolic disorders, heart and lung disease, neurological and neurologic and neurodevelopmental conditions, and current or recent pregnancy.
11. Those in high-risk categories who do not die may have prolonged serious illness, for the most part requiring expensive hospital care, including ventilators that are likely to soon be in very short supply, and an entire team of care providers, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care physicians. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities. Patients who do not die from serious cases of COVID-19 may also face prolonged recovery periods, including extensive rehabilitation from neurological damage and loss of respiratory capacity.
12. Complications from COVID-19, including severe damage to lung, heart, liver, or other organs, can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner.
13. There is no vaccine to prevent COVID-19. There is no known cure or antiviral treatment for COVID-19 at this time.
5 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease Control and Prevention, accessed Mar. 14, 2020, https://www.cdc.gov/coronavirus/2019-ncov/summary.html.
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14. COVID-19 prevention strategies include containment and mitigation. Containment requires identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. Unfortunately, due to the lack of testing availability, most public health experts agree that it is too late to effectively implement a containment strategy in the United States at-large.
15. As the infectious disease spreads in a community, public health demands mitigation strategies, which include scrupulous hand hygiene and social distancing. For that reason, public health officials have recommended extraordinary measures to combat the rapid spread of coronavirus. Schools, courts, collegiate and professional sports, theater and other congregate settings have been closed as part of this risk mitigation strategy. III. Detention Centers, Jails, & Prisons
16. The risk posed by infectious diseases in immigration detention facilities, including jails and prisons, is significantly higher than in the community, both in terms of risk of exposure and transmission and harm to individuals who become infected. There are several reasons this is the case, as delineated further below.
17. Globally, outbreaks of contagious diseases are all too common in confined detention settings and are more common than in the community at large. Though they contain a captive population, these settings are not isolated from exposure. ICE has temporarily suspended social visitation in all detention facilities.6 However, staff arrive and leave on a shift basis; there is no ability to adequately screen staff for new, asymptomatic infection. Contractors and vendors
6 ICE Guidance on Covid-19, U.S. Immigration and Customs Enforcement, accessed Mar. 18, 2020 (at 1:00 p.m. EDT), https://www.ice.gov/covid19.
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also pass between communities and facilities and can bring infectious diseases into facilities. People are often transported to, from, and between facilities.
18. Jails, prisons and detention centers often do not have access to vital community health resources that can be crucial in identifying infectious diseases, including sufficient testing equipment and laboratories. This is especially true when, as now, there is a shortage in available test kits.
19. During an infectious disease outbreak, a containment strategy requires people who are ill to be isolated and that caregivers have adequate personal protective equipment (PPE). Jails and prisons are often under-resourced and ill-equipped to provide sufficient PPE for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak. Moreover, efforts to mitigate disease spread in jails, prisons and detention centers will help limit its transmission in the community, since staff members are able to come and go, and return to their family members at the end of their shifts. This is especially true when, as now, facemasks are already in short supply.
20. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people live in close, crowded quarters and must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater. Toilets, sinks, and showers are shared, without disinfection between use. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Detainees often have a small number of telephones that they share, and which form their only contact with the outside world—including
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their family and lawyers. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
21. Additionally, jails and prisons are often unable to adequately provide the mitigation recommendations described above. During an infectious disease outbreak, people can protect themselves by washing hands. Detention centers, jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often underresourced and ill-equipped with sufficient hand soap and alcohol-based sanitizers for people detained in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons.
22. People incarcerated in detention centers, jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.7 This is because people in detention centers, jails and prisons, for a variety of reasons, have higher rates of chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and suppressed immune systems from HIV or other conditions, than people in the community.
23. Detention centers, jails and prisons are often poorly equipped to manage infectious disease outbreaks. Some detention centers, jails and prisons lack onsite medical facilities or 24hour medical care. The medical facilities at detention centers, jails and prisons are almost never sufficiently equipped to handle large outbreaks of infectious diseases. To prevent transmission of
7 Active Case Finding For Communicable Diseases in Prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
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droplet-borne infectious diseases, people who are infected and symptomatic need to be isolated in specialized negative pressure rooms. Most detention centers, jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). ICE has admitted that not all of the detention centers it oversees have even one.8 In the course of an infectious disease outbreak, resources will become exhausted rapidly and any beds available will soon be at capacity.
24. Even assuming adequate space, solitary confinement is not an effective disease containment strategy. Isolation of people who are ill using solitary confinement is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms, air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and the staff. This makes both containing the illness and caring for those who have become infected much more difficult.
25. Infectious disease outbreaks, such as COVID-19, may exacerbate existing mental health conditions and contribute to the development of new mental health conditions.9 Mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation. Moreover, failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by an infectious
8 Brittny Mejia, ICE Says No Confirmed Coronavirus Among Detainees After 4 Test Negative, Los Angeles Times, accessed Mar. 18, 2020, https://www.latimes.com/california/story/2020-03-10/ice-says-no-detainees-havecoronavirus-four-being-tested 9 Brian Honermann, An “Epidemic Within an Outbreak:” The Mental Health Consequences of Infectious Disease Epidemics, O’Neill Institute for National and Global Health Law (Feb. 26, 2015), accessed Mar. 19, 2020, https://oneill.law.georgetown.edu/epidemic-within-outbreak-mental-health-consequences-infectious-diseaseepidemics/; Müller N, Infectious Diseases and Mental Health, Comorbidity of Mental and Physical Disorders; Shultz JM, Mental Health Consequences of Infectious Disease Outbreaks, accessed Mar. 19, 2020, https://www.urmc.rochester.edu/MediaLibraries/URMCMedia/flrtc/documents/Slides-MH-CONSEQUENCES-OFID-OUTBREAKSV2.pdf.
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disease outbreak such as COVID-19, may result in poor health outcomes and even death. The scientific evidence points to a bi-directional relationship between mental health conditions and infectious diseases. Not only are individuals with mental health conditions more at risk for communicable diseases, they are also harder to treat, once infected, due to the nature of their underlying mental health disorder. For individuals in these facilities, especially those with chronic mental health conditions, the experience of an epidemic and the lack of care while confined to small, crowded quarters can itself be traumatizing, compounding the trauma of incarceration.
26. A coronavirus brought into a detention facility can quickly spread among the dense detainee cohort. Soon many are sick—including high-risk groups such as those with chronic conditions—quickly overwhelming the already strained health infrastructure within the facility. This can also lead to a strain on the surrounding hospitals to which these individuals may be transferred.
27. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.10 Subsequent CDC investigation of 995 inmates and 235 staff members across the two facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.11 H1N1 is far less contagious than coronavirus. These scenarios occurred in the “best case” of influenza, a viral infection for which
10 Influenza Outbreaks at Two Correctional Facilities — Maine, March 2011, Centers for Disease Control and Prevention, Apr. 6, 2020, https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 11 David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-flu-widespread-in-prisons-and-jails-but-deathsare-few/.
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there was an effective and available vaccine and antiviral medications, unlike the coronavirus COVID-19, for which there is currently neither.
28. In recent years in immigration detention facilities, overcrowding, poor hygiene measures, medical negligence, and poor access to resources and medical care have led to outbreaks of other infectious diseases as well, including mumps and chickenpox.
29. Additionally, as health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these conditions.
30. We have ample basis to conclude that detention settings are equally unprepared for the rapid spread of Coronavirus. Not surprisingly, Chinese prison officials report that over 500 COVID-19 cases in the current outbreak stemmed from the Hubei province prisons. In Israel, an entire prison was quarantined. Recognizing that the release of those incarcerated is the only solution, US jails in at least a dozen states have begun releasing inmates. In Iran, over 80,000 prisoners were released as a means of preventing death in government prisons. Major human rights organizations such as Human Rights Watch, Physicians for Human Rights and Amnesty International have issued calls to release those detained in immigration facilities to prevent the spread of coronavirus.
31. In my professional opinion, it is inevitable that SARS-CoV-2, the virus that causes COVID-19, will infect prisons, jails, and/or other immigration detention centers in the United States. This is consistent with the prediction of other experts that all detention centers, prisons and jails should anticipate. Given the shortage of COVID-19 tests in the United States, it is likely that detention facilities are unable to conduct aggressive, widespread testing to identify all positive
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coronavirus cases. The ability to identify cases is crucial in order to be able to determine whether there is a risk for coronavirus transmission in an institution. IV. The Maryland Detention Facilities
32. Based on the description of the Maryland facilities contained in the Lopez Declaration, it is my professional opinion that the Maryland facilities are particularly susceptible to rapid spread of the virus and are not equipped to handle a coronavirus outbreak.
33. The living conditions described in the Lopez Declaration are not amenable to the necessary social distancing and hygiene measures that would be necessary to contain or minimize spread of the virus.
34. In particular, the fact that persons detained in those facilities share dorms, cells, living spaces, and bathroom space that is not disinfected between each use, and regularly interact with each other in narrow hallways and other areas where maintaining distance is not possible makes it all but inevitable that the virus would spread rapidly within the facility.
35. Because routine testing is not being undertaken at the facility, it is impossible to tell how many asymptomatic carriers of the disease may already be at the facility or to screen for new instances of the virus before an individual with COVID-19 becomes symptomatic. Since testing is not widely available, it is highly unlikely that the facility would even be able to keep up with the need to test individuals exhibiting symptoms for the virus. Rapid spread of the virus within the facility is therefore extremely likely.
36. The fact that medical units are shared spaces exacerbates this problem, as there appears to be no way to isolate individuals infected with the virus when this becomes necessary. The fact that there is only a small amount of space available in the medical unit makes it highly
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unlikely that the facility could accommodate expanded need for services as a result of a coronavirus outbreak.
37. Moreover, the absence of 24-hour onsite medical facilities, the minimal and parttime nature of medical staffing, and that detainees appear to have had difficulties accessing routine medical care in the past renders it highly unlikely that the facility would be able to provide appropriate screening or treatment should that become necessary.
38. Based on the description of the facilities I have reviewed, it is my professional opinion that an outbreak is highly likely and that the consequences of rampant COVID-19 infection in the facility would be disastrous, especially for high-risk individuals like the plaintiffs in this case. V. Specific Cases.
39. The two plaintiffs in this lawsuit present with personal health characteristics that put them at high risk for complications from COVID-19 should they be exposed to the virus in detention.
40. Mr. Coreas, who suffers from Diabetes is also at a higher risk for complications due to this chronic medical condition. According to the CDC and the American Diabetes Association, those with diabetes are at a higher risk for COVID-19 complications, but also to deadly conditions resulting from the viral infection itself overwhelming the body, such as DKA – or diabetic ketoacidosis.
41. Mr. Cedillo suffers from hypertension. Early research has shown that those with a diagnosis of hypertension have worse symptoms and are more likely to die from COVID-19. VI. Conclusion and Recommendations
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42. For the reasons above, it is my professional judgment that the plaintiffs, currently in ICE’s immigration detention centers, are at a significantly higher risk of infection with Coronavirus as compared to the population in the community, and that they are at a significantly higher risk of complications and poor outcomes if they do become infected. These outcomes include severe illness (including respiratory, cardiac and kidney failure) and even death.
43. Given that the only viable public health strategy available in the United States currently is risk mitigation, reducing the size of the population in detention centers, jails and prisons is crucially important to reducing the level of risk both for those within those facilities and for the community at large. Not doing so is not only inadvisable but also reckless given the public health realities we now face in the United States.
44. Even with the best-laid plans to address the spread of Coronavirus in detention facilities, the release of high-risk individuals is a key part of a risk mitigation strategy. In my professional opinion, the only viable public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety, especially given the lack of an effective vaccine for prevention or effective treatment for the disease at this stage. My professional opinion is consistent with the view of the medical profession as a whole that there are no conditions of confinement in carceral settings that can adequately manage the serious risk of harm for high-risk individuals during the COVID-19 pandemic.
45. Immediate release is crucial for the above-mentioned individuals. 46. Releasing people from incarceration is the best and safest way to prevent the spread of disease and reduce the threat to the most vulnerable incarcerated people. It is my professional opinion that this step is both necessary and urgent. The window of opportunity is rapidly narrowing
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for mitigation of COVID-19 in these facilities. It is a matter of days, not weeks. Once a case of Coronavirus is identified in a facility, it will likely be too late to prevent a widespread outbreak.
47. Release of the most vulnerable people also reduces the burden on these facilities’ limited health care infrastructure, as it lessens the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time.
48. Release of the most vulnerable people – such as the plaintiffs in this case -- also reduces the burden on regional hospitals and health centers, which will otherwise bear the brunt of having to treat these individuals when infected, thus reducing the number of hospital beds and equipment available for the general population. VII. Expert Disclosures
49. None. I declare under penalty of perjury that the foregoing is true and correct. Executed this 24th day of March, 2020 in Washington, D.C. Ranit Mishori, M.D, MHS, FAAFP
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EXHIBIT 8

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Case 2:20-cv-00409-JLR-MAT Document 4 Filed 03/16/20 Page 1 of 3
Declaration of Robert B. Greifinger, MD
I, Robert B. Greifinger, declare as follows:
1. I am a physician who has worked in health care for prisoners for more than 30 years. I have managed the medical care for inmates in the custody of New York City (Rikers Island) and the New York State prison system. I have authored more than 80 scholarly publications, many of which are about public health and communicable disease. I am the editor of Public Health Behind Bars: from Prisons to Communities, a book published by Springer (a second edition is due to be published in early 2021); and co-author of a scholarly paper on outbreak control in correctional facilities.1
2. I have been an independent consultant on prison and jail health care since 1995. My clients have included the U.S. Department of Justice, Division of Civil Rights (for 23 years) and the U.S. Department of Homeland Security, Section for Civil Rights and Civil Liberties (for six years). I am familiar with immigration detention centers, having toured and evaluated the medical care in approximately 20 immigration detention centers, out of the several hundred correctional facilities I have visited during my career. I currently monitor the medical care in three large county jails for Federal Courts. My resume is attached as Exhibit A.
3. COVID-19 is a coronavirus disease that has reached pandemic status. As of today, according to the World Health Organization, more than 132,000 people have been diagnosed with COVID-19 around the world and 4,947 have died.2 In the United States, about 1,700 people have been diagnosed and 41 people have died thus far.3 These numbers are likely an underestimate, due to the lack of availability of testing.
4. COVID-19 is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death in older patients and patients with chronic underlying conditions. There is no vaccine to prevent COVID-19. There is no known cure or antiviral treatment for COVID-19 at this time. The only way to mitigate COVID-19 is to use scrupulous hand hygiene and social distancing.
5. People in the high-risk category for COVID-19, i.e., the elderly or those with underlying disease, are likely to suffer serious illness and death. According to preliminary data from China, 20% of people in high risk categories who contract COVID-19 have died.
1 Parvez FM, Lobato MN, Greifinger RB. Tuberculosis Control: Lessons for Outbreak Preparedness in Correctional Facilities. Journal of Correctional Health Care OnlineFirst, published on May 12, 2010 as doi:10.1177/1078345810367593. 2 See https://experience.arcgis.com/experience/685d0ace521648f8a5beeeee1b9125cd, accessed March 13, 2020. 3 See https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html?searchResultPosition=1, accessed March 13, 2020.

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Case 2:20-cv-00409-JLR-MAT Document 4 Filed 03/16/20 Page 2 of 3
6. Those who do not die have prolonged serious illness, for the most part requiring expensive hospital care, including ventilators that will likely be in very short supply.
7. The Centers for Disease Control and Prevention (CDC) has identified underlying medical conditions that may increase the risk of serious COVID-19 for individuals of any age: blood disorders, chronic kidney or liver disease, compromised immune system, endocrine disorders, including diabetes, metabolic disorders, heart and lung disease, neurological and neurologic and neurodevelopmental conditions, and current or recent pregnancy.
8. Social distancing and hand hygiene are the only known ways to prevent the rapid spread of COVID-19. For that reason, public health officials have recommended extraordinary measures to combat the spread of COVID-19. Schools, courts, collegiate and professional sports, theater and other congregate settings have been closed as part of risk mitigation strategy. At least one nursing home in the Seattle area has had cases of COVID-19 and has been quarantined.
9. The Seattle metropolitan area, hit hard by COVID, is the epicenter of the largest national outbreak at this time. Therefore, it is highly likely, and perhaps inevitable, that COVID19 will reach the immigration detention facility in Tacoma, Washington. Immigration courts and the ICE field office in Seattle have already closed this month due to staff exposure to COVID-19.
10. The conditions of immigration detention facilities pose a heightened public health risk to the spread of COVID-19, even greater than other non-carceral institutions.
11. Immigration detention facilities are enclosed environments, much like the cruise ships that were the site of the largest concentrated outbreaks of COVID-19. Immigration detention facilities have even greater risk of infectious spread because of conditions of crowding, the proportion of vulnerable people detained, and often scant medical care resources. People live in close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread of COVID-19. Toilets, sinks, and showers are shared, without disinfection between use. Food preparation and food service is communal, with little opportunity for surface disinfection. Staff arrive and leave on a shift basis; there is little to no ability to adequately screen staff for new, asymptomatic infection.
12. Many immigration detention facilities lack adequate medical care infrastructure to address the spread of infectious disease and treatment of high-risk people in detention. As examples, immigration detention facilities often use practical nurses who practice beyond the scope of their licenses; have part-time physicians who have limited availability to be on-site; and facilities with no formal linkages with local health departments or hospitals.
13. The only viable public health strategy available is risk mitigation. Even with the best-laid plans to address the spread of COVID-19 in detention facilities, the release of high-risk individuals is a key part of a risk mitigation strategy. In my opinion, the public health recommendation is to release high-risk people from detention, given the heightened risks

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to their health and safety, especially given the lack of a viable vaccine for prevention or effective treatment at this stage. 14. To the extent that vulnerable detainees have had exposure to known cases with laboratory-confirmed infection with the virus that causes COVID-19, they should be tested immediately in concert with the local health department. Those who test negative should be released. 15. This release cohort can be separated into two groups. Group 1 could be released to home quarantine for 14 days, assuming they can be picked up from NWDC by their families or sponsors. Group 2 comprises those who cannot be easily transported to their homes by their families or sponsors. Group 2 could be released to a housing venue for 14 days, determined in concert with the Pierce County or Washington State Department of Health.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 14th day in March, 2020 in New York City, New York.
Robert B. Greifinger, M.D.

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EXHIBIT 9

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

)

RUSSELL, et al.

)

)

Plaintiffs,

)

)

Case No. 4:19-cv-00226

v.

)

(Class Action)

)

The Honorable Lee H. Rosenthal

HARRIS COUNTY, TEXAS, et al.

)

U.S. District Judge

)

Defendants.

)

)

Declaration of Dr. Chiao
I. Background and Qualifications
1. I am Dr. Elizabeth Chiao, Professor of Medicine, Division of Infectious Diseases and Health Services, Research, Baylor College of Medicine. I am board certified by the American Board of Internal Medicine (ABIM) in Medical Oncology and Infectious Diseases. I am licensed to practice medicine in the state of Texas, license number L8647. I earned my Doctor of Medicine from Cornell University Medical College, and Master Degree in Public Health from Yale University School of Medicine, Department of Epidemiology and Public Health. I completed my residency at the University of Utah, and completed Fellowships in Medical Oncology at Memorial Sloan Kettering, and in Infectious Diseases at Baylor College of Medicine.
2. I have worked for the past 14 years as Faculty in the Division of Infectious Diseases and Health Services Research at Baylor College of Medicine. My research interests focus on the epidemiology, prevention, treatment and outcomes of HIV-related comorbidities and Cancers, as well as health disparities for people living with HIV.
3. In the past 14 years I have received continuous funding by the National Institutes of Health (NIH) starting with an NCI funded K23 (K23 CA124318) in 2006. I subsequently received an NCI funded R01 (R01CA163103) entitled “The Effectiveness of Screening HIV-infected Women for Anal Cancer Precursors,” and a second R01 (R01CA206476) “(PQ 3) Identifying Novel Pharmacologic Risk factors for Common Non-AIDS Defining Cancers in Individuals with Well-controlled HIV Infection.” I am additionally a co-investigator on multiple national NIH funded projects. I also hold several leadership positions in the AIDS Malignancy Consortium (AMC): I am 1) the Baylor College of Medicine principal investigator for the AMC, 2) the co-chair of AMC 087: a phase 1 protocol of Cabozantinib for the treatment of advanced solid tumors in HIV-infected individuals (currently enrolling), and 3) the
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chair of the Solid Tumor Working Group in the AMC. Furthermore, I collaborate with U.S.-based and international researchers and I have been appointed to several national and international committees including the Board of Scientific Advisers subcommittee for HIV-related malignancies, scientific merit review committees for South Africa and the organizing committee for the International HIV Malignancy Conference. My clinical work as the clinical director of both the Anal Dysplasia and Medical Oncology clinics at the Thomas Street Health Center were recognized with a Baylor Clinician STAR award in 2017. Finally, I lead an active mentoring program where several mentees have successfully applied for and obtained career development awards and other various research funding. In summary, I am a clinician researcher whose goals are to improve survival and quality of life for people living with HIV (HIV), and individuals with virally mediated cancer by improving cancer prevention, screening and treatment outcomes.
4. I have written and published extensively on the topics of infectious diseases, and the epidemiology of people living with HIV (PLWH), including papers about PLWH involved in the criminal justice system. In particular, I have published in leading peer-reviewed journals on the health disparities and the ethical medical care for PLWH for people in detention; disparities in the outcomes of AIDS-related Kaposi Sarcoma; and how to improve screening for Human Papillomavirus-related cancers in PLWH to take just three examples.
5. My C.V. includes a full list of my honors, experience, and publications, and it is attached as Exhibit A.
6. I am donating my time reviewing materials and preparing this report. Any live testimony I provide will also be provided pro bono.
7. I have not testified as an expert at trial or by deposition in the past four years.
8. This declaration is substantially the same as a sworn declaration submitted by Dr. Jaimie Meyer, Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut, in federal court in New York. CITE. Dr. Meyer is board certified in Internal Medicine, Infectious Diseases and Addiction Medicine.
9. I have reviewed thoroughly Dr. Meyer’s report, and the sources cited in it. Based on my own independent training, expertise, and experience in epidemiology and infectious diseases, I fully agree with Dr. Meyer’s analysis of the dangers that the novel corona posed in New York City-area jails, and believe that they are applicable, as described below, to the Harris County jail.
II. Heightened Risk of Epidemics in Jails and Prisons
10. The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to
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individuals who become infected. There are several reasons this is the case, as delineated further below.
11. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. People often need to be transported to and from facilities to attend court and move between facilities. Prison health is public health.
12. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater. When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
13. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and staff.
14. Reduced prevention opportunities: During an infectious disease outbreak, people can protect themselves by washing hands. Jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcoholbased sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons because of a lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
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15. Reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and illequipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak.
16. Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.1 This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.
17. Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24-hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large outbreaks of infectious diseases. To prevent transmission of dropletborne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes both containing the illness and caring for those who have become infected much more difficult.
18. Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, and medications.
19. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
20. Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the
1 Active case finding for communicable diseases in prison, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
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care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited.
21. Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public. Furthermore, rapid spread of infectious diseases among the inmates can often worsen the epidemic outside of the incarcerated population because staff are more likely to be infected and spread the disease to their families and the wider population.
22. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.2 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.3 Even facilities on “quarantine” continued to accept new intakes, rendering the quarantine incomplete. These scenarios occurred in the “best case” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
III. Profile of COVID-19 as an Infectious Disease4
23. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but recent data from China has demonstrated that almost 13% of transmission occurs from asymptomatic individuals before they start to show symptoms, and it is possible that transmission can occur for weeks after their symptoms resolve.5 In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. Not only is the
2 Influenza Outbreaks at Two Correctional Facilities—Maine, March 2011, Centers for Disease Control and Prevention (2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 3 David. M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-flu-widespread-in-prisons-and-jails-but-deathsare-few/. 4 This whole section draws from Broks J. Global Epidemiology and Prevention of COVID19, COVID-10 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www.ncchc.org/blog/covid-19-coronavirus-what-you-need-toknow-in-corrections. 5 Du Z, Xu X, Wu Y, Wang L, Cowling BJ, Ancel Meyers L. Serial interval of COVID-19 among publicly reported confirmed cases. Emerg Infect Dis. 2020 Jun [date cited]. https://doi.org/10.3201/eid2606.200357
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virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for over a year to the general public. Antiviral medications are currently in testing but not yet FDA-approved. People in prison and jail will likely have even less access to these novel health strategies as they become available.
24. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.6 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.7 Among those individuals, the risk of poor outcomes, included the need for mechanical intervention is over 20%. Death in COVID-19 infection is usually due to pneumonia, and sepsis, and would occur between approximately 1-4% of the popultion. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.
25. The care of people who are infected with COVID-19 depends on how seriously they are ill.8 People with mild symptoms may not require hospitalization but may continue to be closely monitored at home. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID19 becomes more widespread in communities.
26. In order to prevent overwhelming the local health systems, aggressive containment and COVD-19 prevention is of utmost importance. To this end, certain states and jurisdictions, including Harris County have mandated COVID-19 prevention strategies, such as “shelter in place” or “stay at home”, which have gone beyond containment and mitigation. Jails and prisons already have difficulty with containment because it requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. However, even with these efforts, it is nearly impossible for
6 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/summary.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fsummary.html. 7 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study, The Lancel (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext. 8 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2002), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html.
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jails and prisons to provide the atmosphere of “shelter in place” or “stay at home” social distancing, given the number of individuals that work in and are housed in these facilities in the current system. Decreasing the population will help the prison facilities to develop “isolation” strategies that can nearly mirror Harris County mandates.
27. The time to act is now. Data from other settings demonstrate what happens when jails and prisons are unprepared for COVID-19. News outlets reported that Iran temporarily released 70,000 prisoners when COVID-19 started to sweep its facilities.9 To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in place.10 Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and potentially transmit the virus to others.
IV. Risk of COVID-19 in the Harris County Jail
28. In preparing this report I have spoken with Dr. Marc Robinson, who has worked as a physician in the medical clinic in the jail and therefore has first-hand knowledge of the medical facilities and jail conditions in the Harris County Jail. Based on my conversation with Dr. Robinson, I understand that the medical facilities in the jail are rudimentary and are not equipped to care for anyone with an acute illness. The Harris County Jail cannot do anything other than administer oxygen, and supplies are limited. Thus, anyone whose symptoms are more severe than mild would be sent to the local hospital. This would cause significant strain on both the local hospital and jail/prison staff. Because people wait for administrative disposition, and are housed/ live in close quarters, and because of the number of people detained of the Harris County Jail, it is impossible for inmates to comply with local health mandates and CDC recommendations, including social distancing. Moreover, because hundreds of people cycle in and out of the jail every day, it is virtually impossible to create stable units of people isolating those infected with those who are uninfected, which is necessary to contain infection.
29. Based on my conversations with Ms. Sarah Wood, Policy Director for the Harris County Office of the Public Defender, and Dr. Robinson, my experience working on public health and Infectious Diseases, and my review of the relevant literature, it is my professional judgment that the Harris County Jail is dangerously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, which would result in severe harm to detained individuals, jail and prison staff, and the broader community. The reasons for this conclusion are detailed as follows.
9 Iran temporarily releases 70,000 prisoners as coronavirus cases surge, Reuters (March 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases-70000-prisoners-ascoronavirus-cases-surge-idUSKBN20W1E5. 10 Luke Barr & Christina Carrega, State prisons prepare for coronavirus but federal prisons not providing significant guidance, sources say, ABC News (March 11, 2020), https://abcnews.go.com/US/state-prisons-preparecoronavirus-federal-prisons-providing-significant/story?id=69433690.
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30. Above and beyond the inability to prevent the spread of COVID-19 and increased risk for severe illness and inability to care for inmates in jail and prisons, the delays in access to care that already exist in normal circumstances will only become worse during an outbreak, making it especially difficult for the facilities to contain any infections and to treat those who are infected.
31. Failure to provide individuals with continuation of the treatment they were receiving in the community, or even just interruption of treatment, for chronic underlying health conditions will result in increased risk of morbidity and mortality related to these chronic conditions.
32. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected.
33. People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention. Failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by COVID-19 outbreaks, may result in poor health outcomes. Moreover, mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation.
34. Failure to keep accurate and sufficient medical records will make it more difficult for the facilities to identify vulnerable individuals in order to both monitor their health and protect them from infection. Inadequate screening and testing procedures in facilities increase the widespread COVID-19 transmission.
35. Language barriers will similarly prevent the effective identification of individuals who are particularly vulnerable or may have symptoms of COVID-19. Similarly, the failure to provide necessary aids to individuals who have auditory or visual disabilities could also limit the ability to identify and monitor symptoms of COVID19.
36. The commonplace neglect of individuals with acute pain and serious health needs under ordinary circumstances is also strongly indicative that the facilities will be illequipped to identify, monitor, and treat a COVID-19 epidemic.
37. The failure of these facilities to adequately manage single individuals in need of emergency care is a strong sign that they will be seriously ill-equipped and underprepared when a number of people will need urgent care simultaneously, as would occur during a COVID-19 epidemic.
38. For individuals in these facilities, the experience of an epidemic and the lack of care while effectively trapped can itself be traumatizing, compounding the trauma of incarceration.
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V. Conclusion and Recommendations 39. For the reasons above, it is my professional judgment that individuals placed in the Harris County Jail are at a significantly higher risk of infection with COVID-19 as compared to the population in the community, given the procedural and housing conditions in the facilities, and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death. 40. Reducing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for who both are housed and work within those facilities and for the community at large. 41. From a public health perspective, it is my strong opinion that individuals who can safely and appropriately remain in the community not be placed in the Harris County Jail at this time. I am also strongly of the opinion that individuals who are already in those facilities should be evaluated for release, and that a careful evaluation of procedural and housing guidance is created for those who remain in the facilities during the “stay at home” mandate, and possibly until the epidemic is contained. 42. This is more important still for individuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune systems, cancer, and diabetes) or who are over the age of 60.11 They are in even greater danger in these facilities, including a meaningfully higher risk of death. 43. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in these facilities is a matter of days, not weeks. 44. Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.
11 Report of the WHO-China Joint Mission of Coronavirus Disease 2019 (COVID-19) (Feb. 16-24 2020), available at https://www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf.
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I declare under penalty of perjury that the foregoing is true and correct to the best of my ability.

_______________________ Name

3/27/2020________ Date

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Case 1:20-cv-21457-KMW Document 1-12 Entered on FLSD Docket 04/05/2020 Page 12 of 30 Case 4:19-cv-00226 Document 32-2 Filed on 03/27/20 in TXSD Page 12 of 30 EXHIBIT A Curriculum Vitae
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Personal statement My research focuses on HIV clinical management, HIV co-morbidity research, HIV malignancy clinical management, and virally-mediated cancer research, with an emphasis on evaluating the epidemiology of HIVassociated cancers, cancer prevention and outcomes. My work involves both utilizing large databases and cohorts to improve cancer prevention strategies for HIV-infected individuals as well as clinical trial/clinical research elucidating the prevention and treatment of HIV-related cancers. My training in Epidemiology, HIV, Oncology, and Infectious Diseases make me uniquely qualified to conduct research in HIV-related and other viral malignancies. My group and I were the first to show the effect of cumulative measurements of combined antiretroviral therapy (cART) on multiple different HIV-associated cancers utilizing VA administrative databases. We have over 20 publications on HIV-associated malignancies focusing on elucidating the impact of HIV-related factors on the incidence of HIV-related malignancies in high impact journals such as JAMA, the Journal of Clinical Oncology, Clinical Infectious Diseases, and the Journal of Acquired Immune Deficiency Syndromes. In the past 12 years I have received continuous funding by the National Institutes of Health (NIH) starting with an NCI funded K23 (K23 CA124318) in 2006. I subsequently received an NCI funded R01 (R01CA163103) entitled “The Effectiveness of Screening HIV-infected Women for Anal Cancer Precursors,” and a second R01 (R01CA206476) “(PQ 3) Identifying Novel Pharmacologic Risk factors for Common NonAIDS Defining Cancers in Individuals with Well-controlled HIV Infection.” I am additionally a co-investigator on multiple national NIH funded projects. I also hold several leadership positions in the AIDS Malignancy Consortium (AMC): I am 1) the Baylor College of Medicine principal investigator for the AMC, 2) the co-chair of AMC 087: a phase 1 protocol of Cabozantinib for the treatment of advanced solid tumors in HIV-infected individuals (currently enrolling), and 3) the chair of the Solid Tumor Working Group in the AMC. Given my research productivity and expertise, I was recently selected to co-lead the Mechanisms of Cancer Evolution Scientific Working Group in the Dan L. Duncan Cancer Center. Furthermore, I collaborate with U.S.-based and international researchers and I have been appointed to several national and international committees including the Board of Scientific Advisers subcommittee for HIV-related malignancies, scientific merit review committees for South Africa and the organizing committee for the International HIV Malignancy Conference. My clinical work as the clinical director of both the Anal Dysplasia and Medical Oncology clinics at the Thomas Street Health Center were recognized with a Baylor Clinician STAR award in 2017. Finally, I lead an active mentoring program where several mentees have successfully applied for and obtained career development awards and other various research funding. In summary, I am a clinician researcher whose goals are to improve survival and quality of life for HIV-infected individuals, and individuals with virally mediated cancer by improving cancer prevention, screening and treatment outcomes.
I. GENERAL BIOGRAPHICAL INFORMATION
A. Personal 1. Name: Elizabeth Yu Chiao, MD, MPH 2. Date of Birth: 7/13/1969; citizenship: USA 3. Home Address: 416 Byrne St. Houston, TX 77009 4. Office Address: Houston VA Medical Center (152), 2002 Holcombe Blvd, Houston, TX 77030 5. Office Phone Number: 713-440-4485 6. Email: echiao@bcm.edu
B. Education: 1. Undergraduate Education: a. Cornell University, Ithaca, NY, School of Arts, (Biology and Society), May 1990
2. Medical Education or Graduate Education (with thesis/dissertation title, advisor): a. Yale University School of Medicine, New haven, CT, Department of Epidemiology and Public
Health, Master Degree in Public Health, December 1993, Graduated with Distinction, Thesis Title: Survival Analysis of Connecticut AIDS Cases reported through 1990 b. Cornell University Medical College, New York, NY, Doctor of Medicine, May 1998
3. Postgraduate Training: residency, fellowship (clinical or research), with source of support and advisor, if relevant):
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a. University of Utah, Salt Lake City, UT, Internal Medicine Department, Resident House staff, June 1998-2001
b. Postgraduate Training-Fellowship: Memorial Sloan Kettering Cancer Center, New York, NY, Department of Medicine, Medical Oncology Clinical Research Fellow, Advisor: Susan Krown, July 2002-2004
c. Postgraduate Training-Fellowship: Baylor College of Medicine, Houston, TX, Department of Medicine, Infectious Disease Fellow: July 2004-April 2005

C. Academic Appointments 1. Current Faculty position at BCM: a. Professor, Internal Medicine, Infectious Diseases, Health Services Research Section, Center for Innovation in Quality, Effectiveness, and Safety, Michael E. DeBakey VA Medical Center, Baylor College of Medicine, 7/2018-present b. Associate Professor, Internal Medicine, Infectious Diseases, Health Services Research Section, Center for Innovation in Quality, Effectiveness, and Safety, Michael E. DeBakey VA Medical Center, Baylor College of Medicine, 3/2014-7/2018 c. Assistant Professor, Internal Medicine, Infectious Diseases, Health Services Research Section Center for Innovation in Quality, Effectiveness, and Safety, Michael E. DeBakey VA Medical Center, Baylor College of Medicine, 1/2006-3/2014 d. Instructor, Internal Medicine, Infectious Diseases, 4/2005-1/2006

2. Previous faculty position at other institutions: a. University of Utah, Salt Lake City, UT, Instructor, Department of Medicine. Attending physician in
the HIV inpatient and outpatient services. Supervise and teach Internal Medicine house staff; 7/2001-7/2002

D. Other advanced training/experience: 1. Formal Sabbatical leave: a. None

2. Other specialized training following academic appointment: a. Trained high-resolution anoscopy (HRA). UCSF HRA training program 4/05

E. Other information: 1. Honors or Awards: titles, dates: a. Heather Belsey Faculty Award, University of Utah 2002 b. MPH with Distinction 1993 c. Martin Luther King Community Service Award, Yale Medical School (1992) d. Outstanding Reviewer Annals Internal Medicine 2007 e. Outstanding Reviewer Clinical Infectious Diseases Award 2008 f. NIH Loan Repayment Recipient 2007-2011 g. Baylor College of Medicine Star Clinician Award 2017 h. Co-Leader Mechanisms of Cancer Evolution, Dan L. Duncan NCI designated Cancer Center 2019

F. Board Certification:

1. Texas State License Number:

Physician: L8647 exp: 5/31/2021

2. New York State License Number:

Physicians and Surgeons: 224503-1

3. ABIM Board Certification

a.

Internal Medicine Boards:

Certified 08/2001 Exp: 8/2011

b.

Internal Medicine Subspecialty Oncology: Certified 11/2004 Exp: 11/2024

c.

Internal Medicine Subspecialty Inf Dis:

Certified 11/2006 Exp: 11/2026

4. Other non-academic positions: a. Board Member Voices Breaking Boundaries Non-Profit
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b. Board Member of Univerity of Houston’s Friends of Women’s, Gender and Sexuality Studies
II. RESEARCH INFORMATION
A. Research Support
Current Research Funding:
1. (PQ3) Identifying Novel Pharmacologic Risk factors for Common Non-AIDS Defining Cancers in Individuals with Well-controlled HIV Infection a. National Institute of Health b. Principal Investigator c. June 2016-March 2020 d. $1,968,930 e. 1R01 CA206476-01
2. The Effectiveness of High Resolution Microendoscopy (HRME) in High Grade Intraepithelial Lesions (HSIL) Diagnosis for People Living with HIV a. National Institute of Health b. Co-Principal Investigator c. November 2018-November 2023 d. $2,100,000 e. R01 CA232890
3. AIDS Cancer Specimen Resource a. National Institute of Health, NCI b. Co-Investigator c. September 2013- December 2018 d. $1,747,386 over 5 years e. NIH UM1CA181255 f. PI: M. McGrath
4. Texas NeuroAIDS Repository a. National Institute of Health, NIMH b. Co-Investigator (Baylor Principal Investigator) c. February 2018-February 2023 d. $650,000 over 5 years e. U24MH100930 f. PI: B. Gelman
5. Annual Anal Sampling using DNA Screening to Identify Men Who have Sex with Men at Increased Risk for Anal Cancer a. National Institute of Health, NCI b. Co-investigator c. Sep 2017 - Aug 2022 d. $380,613 e. R01CA215403-01A1 f. PI: A. Nyitray
6. AIDS Malignancy Clinical Trial Consortium a. National Institute of health, NCI b. Co-investigator (Baylor Principal Investigator) c. August 2015- August 2020 d. $ 453,000 e. UM1CA121974 f. PI: R. Mitsuyasu
7. Immunogenetic determinants of HPV-related head and neck cancer in Veterans a. MEDVAMC b. Co-Principal Investigator c. April 2018 - March 2020 d. $148,169
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Case 1:2C0a-csve-241:1495-7c-vK-0M0W226DoDcoucmuemnet n1t-132-2EnFteilereddoonn0F3L/2S7D/2D0oinckTeXt S04D/05P/a2g0e2016Poaf g3e0 16 of 30
e. VA 1 I01 BX004183-01A1 8. Determining the accuracy of self- and partner anal exams for detecting anal abnormalities
a. National Institutes of Health, NCI b. Co-investigator c. Sept 2018-Aug 2023 d. $ 1,100,173 e. R01CA232892-01 f. PI: A. Nyitray 9. Optimizing Age-Based Anal Cancer Screening Among People Living with HIV Using Decision Analytic Modeling
a. National Institutes of Health, NCI b. Co-Investigator c. February 2019-February 2024 d. $200,000 e. 1R01CA232888-01A1 f. PI: A. Deshmukh
10. A Randomized Controlled Trial of Mail-Self Stamped HPV Testing to Increase Cervical Cancer Screening Participation Among Minority/Underserved Women in an Integrated Safety Net Healthcare System a. National Institutes of Health, NIMHD b. Co-Investigator c. April 2019- April 2024 d. $140,000 e. R01 MD013715-01 f. PI: J. Montealegre
Past Research Funding: 1. Pilot Study of Valganciclovir in Patients with Classic, non-HIV-associated Kaposi’s Sarcoma
a. Roche Pharmaceuticals b. Fellow c. July 2004-July 2010 d. $47,000 e. Pharmaceutical Grant 2. The Epidemiology of HIV-related Anal Dysplasia a. Baylor Seed Fund Institutional Grant b. Principal Investigator c. July 2007-July 2008 d. $25,000 (project support only) 3. Risk of Monoclonal Gammopathy of Undetermined Significance (MGUS) and Subsequent Multiple Myeloma (MM) among African American and White Veterans in the United States a. Contract b. National Cancer Institute c. July 2007-July 2008 d. $50,000 (project support only) 4. HPV-related cancers in HIV infected veterans a. Pilot funds from HSR&D b. Baylor College of Medicine c. Principal Investigator d. January 2009-December 2009 e. $10,000 5. The Epidemiologic Effects of HAART on HIV-related Anal Cancer and Anal Dysplasia a. K23 Patient-Oriented Mentored Career Development Award b. National Institute of Cancer, NIH c. Principal Investigator d. July 2006-June 2011 e. $637,500 over 5 years (80% salary and project funds)
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Case 1:2C0a-csve-241:1495-7c-vK-0M0W226DoDcoucmuemnet n1t-132-2EnFteilereddoonn0F3L/2S7D/2D0oinckTeXt S04D/05P/a2g0e2017Poaf g3e0 17 of 30
6. NIH 1 K23 CA124318-06 K23 Patient-Oriented Mentored Career Development Award Supplement a. National Institute of Cancer, NIH b. Principal Investigator c. September 2009-August 2011 d. $100,000 over 2 years (project support only)
7. Behavioral Strategies to Accrue and Retain Diverse Underserved Populations in HIV Related Malignancy Clinical Trials a. Supplement to U10CA139519-01A1 b. Co-Investigator c. September 2011-September 2013 d. $80,000
8. AIDS Cancer Specimen Registry (ACSR) Pilot Funds a. Pilot Funds from the ACSR b. UCSF c. Principal Investigator d. September 2009- September 2013 e. $75,000 (project support only)
9. The Effect of HAART on the Epidemiology and Molecular Pathogenesis of HIV-related Hodgkin Lymphoma a. Pilot Funds from the AIDS Malignancy Consortium (AMC) b. Principal Investigator c. May 2011-June 2014 d. $65,000 e. NIH P30 CA125123
10. The Feasibility of Self/Partner-Assisted Digital Anal Exams for Cancer Screening a. National Cancer Institute b. Co-investigator c. September 2013- September 2016 d. $125,000 e. NIH R21 CA181901
11. The Effectiveness of Screening HIV-infected Women for Anal Cancer Precursors a. National Institutes of Health, NCI b. Principal Investigator c. September 2011- August 2016 d. $120,000 e. NIH 1 R01 CA163103 (S1)
12. Risk and Predictors of Esophageal and Esophagogastric Junction Adenocarcinomas in HIVInfected Individuals
a. National Institute of Health, NIAID b. Co-investigator c. June 2016-December 2018 d. $475,487 e. P30AI027767 13. Supplement for AMC 084: The Effectiveness of Screening HIV-Infected Women for Anal Cancer
Precursors a. National Institute of Health, NCI b. Co-investigator c. Sep 2017 - Aug 2019 d. $193,793 e. UM1CA121974
1. National Scientific Participation:
a. Journal Review editorial boards: a. Ad-hoc journal reviewer, Antiviral Therapy, June 2006-present b. Ad-hoc journal reviewer, Annals Internal Medicine, July 2007-present
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Case 1:2C0a-csve-241:1495-7c-vK-0M0W226DoDcoucmuemnet n1t-132-2EnFteilereddoonn0F3L/2S7D/2D0oinckTeXt S04D/05P/a2g0e2018Poaf g3e0 18 of 30
c. Ad-hoc journal reviewer, Clinical Infectious Disease, August 2007-present d. Ad-hoc journal reviewer, International Journal of Cancer, July 2011-present e. Ad-hoc journal reviewer, International Journal of Infectious Diseases, May 2013-present f. Ad-hoc journal reviewer, JAIDS, March 2006-present
b. Review panels: a. The Ontario HIV Network, grant review July 2006 b. Reviewer, Ad Hoc, American Re-investment and Renewal Acct (ARRA) AIDS Cancer Vaccines, NCI, NIH, August, 2009. Bethesda, MD c. Reviewer, Ad Hoc, D43 AIDS Malignancy Training Grants in Africa, NCI, NIH February, 2010. Bethesda, MD d. Reviewer, Ad Hoc, NCI: RFA CA 11-011 and 012 “Research Answers to NCI’s Provocative Questions”, March 26-28, 2012 e. Reviewer, Ad Hoc, NCI: J subcommittee-Career Development Awards, March, 2013 f. Reviewer, Ad Hoc, NCI J subcommittee-Career Development Awards, July, 2013 g. Reviewer, Ad Hoc, NCI J subcommittee-Career Development Awards, November, 2013 h. Reviewer, Ad Hoc, NIAID, HIV and Aging Provocative Questions, November, 2013 i. Reviewer, Ad Hoc, NIAID, Special Emphasis Panel, January, 2014 j. Reviewer, Ad Hoc, NCI: Subcommittee - HIV and AIDS Malignancy September, 2017 k. Reviewer Ad Hoc, NIAID HIV and Aging Special Emphasis Panel, March 2018 l. Reviewer, NCI U54 Prevention of HPV-related Cancers in HIV-infected individuals: United States-Latin American-Caribbean Clinical Trials Network: Partnership Centers Special Emphasis Panel, April 2019
c. Professional societies: i. American Society of Clinical Oncology, 2004-current ii. Infectious Diseases Society of America, 2007-current
d. National Committees i. ACTG co-infections and malignancies subcommittee 2011-2014 ii. ACTG 5298, “A Randomized, Double-Blinded, Placebo-Controlled, Phase 3 Trial of the Quadrivalent HPV Vaccine to Prevent Anal Human Papillomavirus Infection in HIV-Infected Men and Women” iii. NCI “Provocative Questions: AIDS Malignancy” Committee March, 2014 iv. AMC Steering Committee, Member 2016-2018 v. Chair, AMC Non-AIDS Defining Cancer Committee (April 2017-present) vi. International Conference of HIV Malignancies (ICMH) meeting organizing committee (2017current)
vii. NCI Board of Scientific Advisers, HIV Malignancies, June 2017 viii. Scientific Steering Committee of University of Washington /Fred Hutchinson CFAR, March 2018 ix. 2018 Eurogin Program Committee, March 2018
x. External Advisory Board Weil/Cornell CFAR, February 2019
e. Invited lectures, presentations, research seminars: a. International i. Chiao, E. Head and Neck Cancers in U.S. Veterans Living in HIV, IAS Mexico City 7/23/2019 ii. Chiao, E. Screening HIV-infected Women for Anal Cancer Precursors, Eurogin, Salzburg, Austria 6/10-6/13/2016 iii. Chiao, E. Screening People Living with HIV for Anal Cancer, Eurogin, Lisbon, Portugal 12/3-12/15/2018
b. National 1) Chiao, E. Co-Chair: International Conference on HIV-related Malignancies, Outcome Disparities of HIV-associated Malignancies, Bethesda, MD, October 21-22, 2019
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Case 1:2C0a-csve-241:1495-7c-vK-0M0W226DoDcoucmuemnet n1t-1322-2EnFteilereddoonn0F3L/2S7D/2D0oinckTeXt S04D/05P/a2g0e2019Poaf g3e0 19 of 30
2) Chiao, E. A Multi-Disciplinary Approach to Optimizing and Advancing Cancer Care for People Living with HIV, CFAR Seminar, University of Washington, Seattle WA July 11, 2019
3) Chiao, E. Co-Chair: International Conference on HIV-related Malignancies, Epidemiology of HIV-associated Malignancies, Bethesda, MD, October 22-24, 2017
4) Chiao, E. Co-Chair: Conference on Retroviruses and Opportunistic Infections (CROI): HPV-related malignancies, February 28-March 3, 2013, Atlanta, GA
5) Chiao, E. Chair person: AACR Annual Meeting, HIV Malignancies: Current Dilemmas and Future Directions, March 31-April 4, 2012, Chicago, IL.
6) Chiao, E. HIV- Related Anal Cancer and Cancer Precursors in the HAART Era, Association of Nurses in AIDS Care yearly meeting, September 26, 2008.
c. Local 1. Chiao, E. MD Anderson Cancer Center Institutional Grand Rounds: HIV and Maligncies, 5/18/2018 2. Chiao, E. Screening HIV-infected Individuals for Anal Cancer Precursors: What is the Evidence. Southern AIDS Education and Training Conference, 2/20/2018 3. Chiao, E. Viral and Molecular Oncogenesis Program meeting: "Evidence for screening HIV-infected women for anal cancer precursors”, 5/18/2011, 5/15/2016. 4. Chiao, E. TSH-HCHD HIV Conference 2017: Anal Cancer and HIV, 4/30/2017. 5. Chiao, E. CFAR AIDS Research Forum: Human Papilloma Virus and Cancer in HIVpositive Patients, 8/18/17.
2. Publications
a. Full papers in Peer Review Journals: I. Published
1) Clark E, Royse KE, Dong Y, Chang E, Raychaudhury S, Kramer J, White DL, Chiao E. Stable Incidence and Poor Survival for HIV-Related Burkitt Lymphoma Among the U.S. Veteran Population During the Anti-Retroviral Era. J Acquir Immune Defic Syndr. 2020 Jan 27. doi: 10.1097/QAI.0000000000002303. [Epub ahead of print] PubMed PMID: 31977597.
2) Stier EA, Abbasi W, Agyemang AF, Valle Álvarez EA, Chiao EY, Deshmukh AA. Recurrence of Anal High-Grade Squamous Intraepithelial Lesions among Women Living with HIV. J Acquir Immune Defic Syndr. 2020 Jan 16. doi: 10.1097/QAI.0000000000002304. [Epub ahead of print] PubMed PMID: 31977596.
3) Nyitray AG, DʼSouza G, Stier EA, Clifford G, Chiao EY. The Utility of Digital Anal Rectal Examinations in a Public Health Screening Program for Anal Cancer. J Low Genit Tract Dis. 2020 Jan 16. doi: 10.1097/LGT.0000000000000508. [Epub ahead of print] PubMed PMID: 31972661.
4) Sandulache VC, Wilde DC, Sturgis EM, Chiao EY, Sikora AG. A Hidden Epidemic of "Intermediate Risk" Oropharynx Cancer. Laryngoscope Investig Otolaryngol. 2019 Oct 17;4(6):617-623. doi: 10.1002/lio2.316. eCollection 2019 Dec. Review. PubMed PMID: 31890879; PubMed Central PMCID: PMC6929570.
5) Sandulache VC, Lei YL, Heasley LE, Chang M, Amos CI, Sturgis EM, Graboyes E, Chiao EY, Rogus-Pulia N, Lewis J, Madabhushi A, Frederick MJ, Sabichi A, Ittmann M, Yarbrough WG, Chung CH, Ferrarotto R, Mai W, Skinner HD, Duvvuri U, Gerngross P, Sikora AG. Innovations in risk-stratification and treatment of Veterans with oropharynx cancer; roadmap of the 2019 Field Based Meeting. Oral Oncol. 2019 Oct 21:104440. doi: 10.1016/j.oraloncology.2019.104440. [Epub ahead of print] PubMed PMID: 31648864.
6) White, DL; Oluyomi, A; Royse, K,; Dong, Y, Nguyen, H; Chang, E, Richardson, P; Jiao, L; Garcia, J.; Kramer, JR.; Thrift, A, Chiao, EY, Incidence of AIDS-related Kaposi Sarcoma in all 50 United States from 2000 to 2014. JAIDS. 2019 Aug 1;81(4):387-394. doi: 10.1097/QAI.0000000000002050. PMID: 31242141
7) Stier, A., Lensing,S., Darragh, M., Deshmukh, A., Einstein, M., Palefsky, J., Jay,N. BerryLawhorn, J.M., Wilkin, T., Wiley, D., Barroso, L., Cranston, R., Levine, R., Guiot, H., French, A., Citron, D., Rezaei, M.K., Goldstone, S., Chiao, E. Prevalence of and risk factors for anal high-
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Case 1:20-cv-21457-KMW Document 1-12 Entered on FLSD Docket 04/05/2020 Page 20 of 30 Case 4:19-cv-00226 Document 32-2 Filed on 03/27/20 in TXSD Page 20 of 30
grade squamous intraepithelial lesions in women living with HIV. Clin Infect Dis. 2019 Jul 11. pii: ciz408. doi: 10.1093/cid/ciz408. Epub ahead of print. PMID: 31292602 8) Kramer J, Hartman C, White DL, Royse K, Richardson P, Thirft A, Raychaudhury S, Desiderio R, Sanchez D, Chiao E. Validation of HIV cohort identification using automated clinical data in the Department of Veterans Affairs. HIV Medicine. 2019 May 26. doi: 10.1111/hiv.12757. Epub ahead of print. PMID: 31131549 9) El-Mallawany N, Kamiyango W, Villier J, Peckham-Gregory E, Scheurer M, McAtee C, Allen C, Kovarik C, Frank D, Eason A, Caro-Vegas C, Chiao E, Schutze G, Ozuah N, Mehta P, Kazembe P, Dittmer D. Kaposi Sarcoma Herpesvirus Inflammatory Cytokine Syndrome (KICS)-like Clinical Presentation in HIV-Infected Children in Malawi. Clin Infect Dis. 2019 Mar 22 pii: ciz250. doi: 10.1093/cid/ciz250. Epub ahead of print. PMID: 31102440. 10) Thrift AP, Kramer JR, Hartman CM, Royse K, Richardson P, Dong Y, Raychaudhury S, Desiderio, R, Sanchez D, Anandasabapathy S, White DL, Chiao EY. Risk and Predictors of Esophageal and Stomach Cancers in HIV-infected Veterans: A Matched Cohort Study. J Acquir Immune Defic Syndr. 2019 Mar 29. Epub ahead of print. PMID: 30939533 11) Harms A, Kansara S, Stach C, Richardson P, Chen G, Lai S, Sikora AG, Parke R, Donovan D, Chiao E, Skinner H, Sandulache VC. Swallowing Function in Survivors of Oropharyngeal Cancer Is Associated With Advanced T Classification. Ann Otol Rhinol Laryngol 2019 Mar 27:3489419839091. doi: 10.1177/0003489419839091. Epub ahead of print PMID:30913911 12) Fokom Domgue J, Messick C, Milbourne A, Guo M, Salcedo MP, Dahlstrom KR, Chiao EY, Deshmukh AA, Sturgis EM, Schmeler KM. Prevalence of high-grade anal dysplasia among women with high-grade lower genital tract dysplasia or cancer: Results of a pilot study. Gynecologic Oncology. 2019 Mar 1. Doi: 10.1016/j.ygyno. Epub ahead of print. PMID: 30827725 13) Kahn JA, Belzer M, Chi X, Lee J, Gaur AH, Mayer K, Martinez J, Futterman DC, Stier EA, Paul ME, Chiao EY, Reirden D, Goldstone SE, Ortiz Martinez AP, Cachay ER, Barroso LF, Da Costa M, Wilson CM, Palefsky JM; AIDS Malignancy Consortium and Adolescent Medicine Trials Network for HIV/AIDS Interventions. Pre-vaccination prevalence of anogenital and oral human papillomavirus in young HIV-infected men who have sex with men. Papillomavirus Res. 2019 Jan 15;7:52-61. doi: 10.1016/j.pvr.2019.01.002. Epub ahead of print. PMID: 30658128 14) Badr, H, Herbert, K, Chhabria, K, Sandulache, V, Bobby R, Chiao, E, Wagner, T. Couple-Based Self-Management for Head and Neck Cancer: Results of A Randomized Pilot Trial. Cancer. 2018 Dec 6. doi: 10.1002/cncr.31906. PMID: 30521075 15) Hicks, JT, Hwang, LY, Barnaiuk ,S, White, M, Chiao, EY, Onwuka, N, Ross, MW, Nyitray, AG. Factors associated with self-reported anal cancer screening history in men who have sex with men. Sex Health. 2018 Dec 6. Doi: 10.1071/SH18D39. PMID: 30517839 16) El-Mallawany,N, Villiera, J, Kamiyango, W, Peckham-Gregory, E, Scheurer, M, Allen,C, McAtee, C, Legarreta, A, Dittmer, D, Kovarik, C, Chiao, E, Martin,S, Ozuah,N, Mehta,P, Kazembe, P. Endemic Kaposi Sarcoma in HIV-Negative Children and Adolescents: An Evaluation of Overlapping and Distinct Clinical Features in Comparison with HIV-Related Disease. Infectious Agents and Cancer. Infect Agent Cancer.2018 Nov9; 13:33. doi:10.1186/s1307-018-0207-4. eCollection 2018. PMID: 30455728; PMCID: PMC6230225 17) Richardson P, Kansara S, Chen G, Sabichi A, Sikora A, Parke R, Donovan D, Chiao E, Sandulache V. Treatment Patterns in Veterans with Laryngeal and Oropharyngeal Cancer and Impact on Survival. Laryngoscope Investig Otolaryngol. 2018 Aug 9;3(4):275-282. doi: 10.1002/lio2.170. eCollection 2018 Aug. PMID: 30186958 ; PMCID: PMC6119785 18) Suk,R, Mahale,P, Sonawane, P, Sikora,A, Chhatwal, J, Schmeler, K, Sigel, K, Cantor, S, Chiao, E* , Deshmukh, A*. Trends in risks for second primary cancers associated with index Human Papillomavirus-Associated cancers. JAMA Network Open. 2018;1(5) e181999. doi:10.1001/jamanetworkopen.2018.1999. PMID: 30646145 ; PMCID: PMC6324459 19) Bender Ignacio R, Lin L, Rajdev L, Chiao E. Evolving Paradigms in HIV Malignancies: Review of Ongoing Clinical Trials. Journal of the National Comprehensive Cancer Network : JNCCN. 2018;16(8):1018-1026. doi:10.6004/jnccn.2018.7064. PMID: 30099376; PMCID: PMC6109631 20) Oseso LN, Chiao EY, Ignacio RAB. Evaluating Antiretroviral Therapy Ini tiation in HIV-Associated Malignancy: Is There Enough Evidence to Inform Clinical Guidelines? Send to J Natl Compr Canc Netw. 2018 Aug;16(8);927-932. doi: 10.6004/jnccn.2018.7057. PMID: 30099368 ; PMCID: PMC6207434
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21) Chang E, Sabichi AL, Kramer JR, Hartman C, Royse KE, White DL, Patel NR, Richardson P, Yellapragada SV, Garcia JM, Chiao EY. Nivolumab Treatment for Cancers in the HIV-infected Population. J Immunother. 2018 Jul 16. doi: 10.1097/CJI.0000000000000240. [Epub ahead of print] PMID: 30020193 ; PMCID: PMC6128753
22) Chang E, Mapakshi SR, Mbang P, El-Mallawany NK, Kramer JR, White DL, Chiao EY. The impact of protease inhibitors on HIV-associated Kaposi sarcoma incidence: a systematic review. J Acquir Immune Defic Syndr. 2018 Jul 6. doi: 10.1097/CJI.0000000000000240 [Epub ahead of print.] PMID: 29985803
23) Deshmukh AA, Shirvani SM, Likhacheva A, Chhatwal J, Chiao EY, Sonawane K. The Association Between Dietary Quality and Overall and Cancer-Specific Mortality Among Cancer Survivors, NHANES III. JNCI Cancer Spectr. 2018 Apr;2(2):pky022. doi: 10.1093/jncics/pky022. Epub 2018 Jun 5. PMID: 29905226 ; PMCID: PMC5989369
24) Thrift AP, Chiao EY. Are Non-HIV Malignancies Increased in the HIV-Infected Population? Curr Infect Dis Rep. 2018 May 26;20(8):22. doi: 10.1007/s11908-018-0626-9. Review. PMID: 29804238
25) Wilkin TJ, Chen H, Cespedes MS, Leon-Cruz JT, Godfrey C, Chiao EY, Bastow B, WebsterCyriaque J, Feng Q, Dragavon J, Coombs RW, Presti RM, Saah A, Cranston RD. A randomized, placebo-controlled trial of the quadrivalent HPV vaccine in HIV-infected adults age 27 or older: AIDS Clinical Trials Group protocol A5298. Clin Infect Dis. 2018 Apr 5. doi: 10.1093/cid/ciy274. [Epub ahead of print] PMID: 29659751 ; PMCID: PMC6186857
26) Cranston RD, Cespedes MS, Paczuski P, Yang M, Coombs RW, Dragavon J, Saah A, Godfrey C, Webster-Cyriaque JY, Chiao EY, Bastow B, Wilkin T; ACTG 5298 Study Team. High Baseline Anal Human Papillomavirus and Abnormal Anal Cytology in a Phase 3 Trial of the Quadrivalent Human Papillomavirus Vaccine in Human Immunodeficiency Virus-Infected Individuals Older Than 26 Years: ACTG 5298. Sex Transm Dis. 2018 Apr;45(4):266-271. doi: 10.1097/OLQ.0000000000000745. PMID: 29528986; PMCID: PMC5868482
27) Hwang JP, Ahmed S, Ariza-Heredia EJ, Duan Z, Zhao H, Schmeler KM, Ramondetta L, Parker SL, Suarez-Almazor ME, Ferrajoli A, Shih YT, Giordano SH, Chiao EY. Low rate of cervical cancer screening among women with hematologic malignancies after stem cell transplant. Biol Blood Marrow Transplant. 2018 May;24(5):1094-1098. doi: 10.1016/j.bbmt.2018.01.019. Epub 2018 Feb 9. PMID: 29378304
28) Chang E, Rivero G, Patel N, Chiao E, Lai S, Bajaj K, Mbue J, Yellapragada S. HIV-Related Refractory Hodgkin Lymphoma: A Case Report of Complete Response to Nivolumab. Clin Lymphoma Myeloma Leuk. 2018 Feb;18(2):e143-e146. doi: 10.1016/j.clml.2017.12.008. Epub 2018 Jan 3. PMID: 29342442; PMCID: PMC5809264
29) Stier EA, Chiao EY. Anal Cancer and Anal Cancer precursors in Women with a History of HPVRelated Dysplasia and Cancer. Semin Colon Rectal Surg. 2017 Jun;28(2):97-101. doi: 10.1053/j.scrs.2017.04.008. Epub 2017 Apr 26. PMID:29204065 ; PMCID: PMC5710808
30) Sonawane K, Suk R, Chiao EY, Chhatwal J, Qiu P, Wilkin T, Nyitray AG, Sikora AG, Deshmukh AA. Oral Human Papillomavirus Infection: Differences in Prevalence Between Sexes and Concordance with Genital Human Papillomavirus Infection, NHANES 2011 to 2014.Ann Intern Med. 2017 Nov 21;167(10):714-724. doi: 10.7326/M17-1363. Epub 2017 Oct 17 PMID:29049523 ; PMCID: PMC6203692
31) Deshmukh AA, Chiao EY, Cantor SB, Stier EA, Goldstone SE, Nyitray AG, Wilkin T, Wang X, Chhatwal J. Management of precancerous anal intraepithelial lesions in HIV-positive MSM: clinical and cost-effectiveness. Cancer. 2017 Dec 1;123(23):4709-4719. doi: 10.1002/cncr.31035. Epub 2017 Sep 26. [Available on 2018-12-01] PMID: 28950043 ;PMCID: PMC5693634
32) Biggerstaff KS, Frankfort BJ, Orengo-Nania S, Garcia J, Chiao E, Kramer JR, White D. Validity of code based algorithms to identify primary open angle glaucoma (POAG) in Veterans Affairs (VA) administrative databases. Ophthalmic Epidemiol. 2018 Apr;25(2):162-168. doi: 10.1080/09286586.2017.1378688. Epub 2017 Sep 25. PMID: 28945495
33) Nyitray AG, Hicks JT, Hwang L-Y, Baraniuk S, White M, Millas S, Onwuka N, Zhang X, Brown EL, Ross MW, Chiao EY. A Phase II clinical study to assess the feasibility of self- and partner anal exams to detect anal canal abnormalities including anal cancer. Sex Transm Infect. 2018 Mar;94(2):124-130. doi: 10.1136/sextrans-2017-053283. Epub 2017 Aug 23. PMID: 28835533; PMCID: PMC6173609
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34) Royse KE, El Chaer F, Amirian ES, Hartman C, Krown SE, Uldrick TS, Lee JY, Shepard Z, Chiao EY. Disparities in Kaposi Sarcoma Incidence and Survival in the United States: 2000-2013. PLoS One. 2017 Aug 22;12(8):e0182750. doi: 10.1371/journal.pone.0182750. eCollection 2017. PMID: 28829790; PMCID: PMC5567503
35) Deshmukh AA, Cantor SB, Fenwick E, Chiao EY, Nyitray AG, Stier EA, Goldstone SE, Wilkin T, Chhatwal J. Adjuvant HPV vaccination for anal cancer prevention in HIV-positive men who have sex with men: The time is now. Vaccine. 2017 Sep 12;35(38):5102-5109. doi: 10.1016/j.vaccine.2017.08.006. Epub 2017 Aug 12. PMID: 28807605; PMCID: PMC5581672 [Available on 2018-09-12]
36) Butame SA, Lawler S, Hicks JT, Wilkerson JM, Hwang LY, Baraniuk S, Ross MW, Chiao EY, Nyitray AG. (2017). A qualitative investigation among men who have sex with men on the acceptability of performing a self- or partner anal exam to screen for anal cancer. Cancer Causes Control. 2017 Oct;28(10):1157-1166. doi: 10.1007/s10552-017-0935-6. Epub 2017 Aug 4. [Available on 2018-10-01].PMID: 28779467; PMCID: PMC5731636
37) Chew EY, Hartman CM, Richardson PA, Zevallos JP, Sikora AG, Kramer JR, Chiao EY. Risk factors for oropharynx cancer in a cohort of HIV-infected veterans. Oral Oncol. 2017 May;68:6066. doi: 10.1016/j.oraloncology.2017.03.004. Epub 2017 Mar 23. PMID: 28438295 ; PMCID: PMC6365160
38) Kahn JA, Lee J, Belzer M, Palefsky JM, AIDS Malignancy Consortium and Adolescent Medicine Trials Network for HIV/AIDS Interventions (Chiao EY is listed as a senior author of this group). HIV-Infected Young Men Demonstrate Appropriate Risk Perceptions and Beliefs about Safer Sexual Behaviors after Human Papillomavirus Vaccination. AIDS Behav. 2017 Feb 20 [Epub ahead of print] PubMed [Available on 2018-08-20] PMID: 28220313; PMCID: PMC5563486
39) Oliver NT, Chiao EY. Malignancies in women with HIV infection. Curr Opin HIV AIDS. 2017 Jan;12(1):69-76. PMID: 27849632 ;PMCID: PMC5568069
40) Nyitray A, Chiao E. Maybe it isn't time to abandon the digital rectal exam for all conditions. Curr Med Res Opin. 2017 Feb;33(2):315-316. doi: 10.1080/03007995.2016.1254608. Epub 2016 Dec 8. PMID: 27805418
41) Deshmukh AA, Zhao H, Das P, Chiao EY, You YN, Franzini L, Lairson DR, Swartz MD, Giordano SH, Cantor SB. Clinical and economic evaluation of treatment strategies for T1N0 anal canal cancer. Am J Clin Oncol. 2016 Oct 17. [Epub ahead of print]. PMID: 27755059; PMCID: PMC5393969
42) Oliver, NT, Hartman, CM, Kramer, JR, Chiao, EY. Statin drugs decrease progression to cirrhosis in HIV/hepatitis C virus coinfected individuals. AIDS. 2016 Oct 23;30(16):2469-2476. PMID:27753678; PMCID: PMC5290260;
43) Lai S, Wenaas AE, Sandulache VC, Hartman C, Chiao E, Kramer J, Zevallos JP. Prognostic Significance of p16 Cellular Localization in Oropharyngeal Squamous Cell Carcinoma. Ann Clin Lab Sci. 2016 Mar;46(2):132-9. PMID:27098618
44) Varier I, Keeley BR, Krupar R, Patsias A, Dong J, Gupta N, Parasher AK, Genden E, Miles B, Teng M, Bakst RL, Gupta V, Misiukiewics K, Chiao E, Scheurer M, Laban S, Zhang DY, Ye F, Cui M, Demicco EG, Posner MR, Sikora A. Clinical Characteristics and Outcomes of Oropharyngeal Carcinoma Related to High Risk Non-HPV16 Viral Subtypes. Head Neck. 2016 Sep;38(9):1330-7. doi: 10.1002/hed.24442. Epub 2016 Apr 15. PMID:27080140
45) Mbang PA, Kowalkowski MA, Amirian ES, Giordano TP, Richardson PA, Hartman CM, Chiao EY. Association between Time on Protease inhibitors and the Incidence of Squamous Cell Carcinoma of the Anus among U.S. Male Veterans. PLoS One. 2015 Dec 2;10(12):e0142966. doi: 10.1371/journal.pone.0142966. PMID:26629701; PMCID:PMC4668039
46) Deshmukh AA, Zhao H, Franzini L, Lairson DR, Chiao EY, Swartz MD, Das P, Giordano SH, Cantor SB. Total Lifetime and Cancer-related Costs for Elderly Patients Diagnosed with Anal Cancer in the United States. Am J Clin Oncol. 2015 Oct 29. [Epub ahead of print] PMID:26523440 ; PMCID: PMC5592145;
47) Chiao E, Stier EA. Reply. Am J Obstet Gynecol. 2016 Mar;214(3):411-2. doi: 10.1016/j.ajog.2015.10.917. Epub 2015 Oct 30. PMID: 26522860
48) Battaglia TA, Gunn CM, McCoy ME, Mu HH, Baranoski AS, Chiao EY, Kachnic LA, Stier EA. Beliefs About Anal Cancer among HIV-Infected Women: Barriers and Motivators to Participation
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Case 1:2C0a-csve-241:1495-7c-vK-0M0W226DoDcoucmuemnet n1t-1322-2EnFteilereddoonn0F3L/2S7D/2D0oinckTeXt S04D/05P/a2g0e2023Poaf g3e0 23 of 30
in Research. Womens Health Issues. 2015 Nov-Dec;25(6) :720-6. doi:10.1016/j.whi.2015.06.008. Epub 2015 Aug 4. PMID:26253825; PMCID:PMC4641840 49) Hwang JP, Granwehr BP, Torres HA, Suarez-Almazor ME, Giordano TP, Barbo AG, Lin HY, Fish MJ, Chiao EY. HIV testing in patients with cancer at the initiation of therapy at a large US comprehensive cancer center. J Oncol Pract. 2015 Sep;11(5):384-90. doi: 10.1200/JOP.2015.005116. Epub 2015 Aug 4. PMID:26243649 ; PMCID:PMC4575402 50) Deshmukh AA, Chhatwal J, Chiao EY, Nyitray A, Das P, Cantor SB. Long-term outcomes of adding HPV vaccine to the anal intraepithelial neoplasia treatment regimen in HIV-positive men who have sex with men. Clin Infect Dis. 2015 Jul 29. pii: civ628. PMID:26223993; PMCID:PMC4614412 51) Robinson JO, Slashinski MJ, Chiao E, McGuire AL. It depends whose data are being shared; considerations for genomic data sharing policies. J Law Biosci. 2015 jul 21;2(3):697-704. doi: 10.1093/jlb/lsv030. eCollection 2015 Nov. PMID: 27774218 ; PMCID: PMC5034404; 52) Moscicki A, Darragh TM, Berry-Lawhorn JM, Roberts JM, Khan MJ, Boardman LA, Chiao E, Einstein MH, Goldstone SE, Jay N, Likes WM, Stier EA, Welton ML, Wiley DJ, Palefsky JM. Screening for Anal Cancer in Women. J Low Genit Tract Dis. 2015 Jul;19(3 Suppl 1):S26-41. doi:10.1097/LGT.0000000000000117. PMID:26103446; PMCID:PMC4479419 53) Stier EA, Sebring MC, Mendez AE, Ba FS, Trimble DD, Chiao EY. Prevalence of anal human papillomavirus infection and anal HPV-related disorders in women: a systematic review. Am J Obstet Gynecol. 2015 Sep;213(3):278-309. doi: 10.1016/j.ajog.2015.03.034. Epub 2015 Mar 19. PMID:25797230; PMCID:PMC4556545 54) Kowalkowski MA, Kramer JR, Richardson PR, Suteria I, Chiao EY. Use of boosted protease inhibitors reduces Kaposi sarcoma incidence among male veterans with HIV Infection. Clin Infect Dis. 2015 May 1;60(9):1405-14. doi:10.1093/cid/civ012.Epub 2015 Jan 13. PMID:25586682; PMCID:PMC4462659 55) Kim MH, Ahmed S, Hosseinipour MC, Giordano TP, Chiao EY, Yu X, Nguyen C,Chimbwandira F, Kazembe PN, Abrams EJ. Implementation and operational research: The impact of Option B+ on the antenatal PMTCT cascade in Lilongwe, Malawi. J Acquir Immune Defic Syndr. 2015 Apr 15;68(5):e77-83. doi:10.1097/QAI.0000000000000517. PMID:25585302; PMCID:PMC4359035 56) Ahmed S, Kim M, Dave A, Sabelli R, Kanjelo K, Preidis G, Giordano TP, Chiao EY, Hoessinipour M, Kazembe P, Chimbwandira F, Abrams E. Improved identification and enrollment into care of HIV-exposed and infected infants and children following a community health worker intervention in Lilongwe, Malawi. J Int AIDS Soc. 2015 Jan 7;18(1)19305. doi:10.7448/IAS.18.1.19305. eCollection 2015. PMID: 25571857; PMCID:PMC4287633 57) Kramer JR, Kowalkowski MA, Duan Z, Chiao EY. The Effect of HIV Viral Control on the Incidence of Hepatocellular Carcinoma in Veterans with Hepatitis C and HIV Coinfection. J Acquir Immune Defic Syndr. 2015 Apr 1;68(4):456-62. doi:10.1097/QAI.0000000000000494. PMID:25559606; PMCID:PMC4334674 58) Dailey Garnes NJ, D'Souza G, Chiao E. Number of Primary Care Visits Associated with Screening for Cervical Dysplasia among Women with HIV Infection in Harris County, Texas, United States of America. HIV Adv Res Dev. 2015;1(2). pii: 107. Epub 2015 Feb 16. PMID:27500276; PMCID:PMC4974513 59) Deshmukh AA, Chiao EY, Das P, Cantor SB. Clinical effectiveness and cost-effectiveness of quadrivalent human papillomavirus vaccination in HIV-negative men who have sex with men to prevent recurrent high-grade anal intraepithelial neoplasia. Vaccine. 2014 Nov;32(51):6941-6947 doi:10.1016/j.vaccine.2014.10.052. PMID:25444820; PMCID:PMC4254641 60) Zevallos JP, Hartman CM, Kramer JR, Strugis EM, Chiao EY. Increased Thyroid Cancer Incidence Corresponds to Increased Utilization of Thyroid Ultrasound and Fine Needle Aspiration: A Population-based Study in the Veterans Affairs Healthcare System. Cancer. 2014 Nov 6. doi: 10.1002/cncr.29122. PMID:25376872 61) Luu HN, Amirian ES, Chiao EY, Scheurer ME. Age patterns of Kaposi's sarcoma incidence in a cohort of HIV-infected men. Cancer Med. 2014 Aug 20. doi: 10.1002/cam4.312. PMID:25139791; PMCID:PMC4298390 62) Kowalkowski M, Day R, Du X, Chan W, Chiao E. Cumulative HIV Viremia and Non-AIDS-Defining Malignancies Among a Sample of HIV-Infected Male Veterans. J Acquir Immune Defic Syndr. 2014 Jul 30. PMID:25078536; PMCID:PMC4162758
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63) Zevallos JP, Sandulache VC, Hamblin J, Skinner HD, Kramer J, Hartman CM, Horter KL, Lai S, Zhou X, Chiao EY. The impact of race on oropharyngeal squamous cell carcinoma presentation and outcomes among veterans. Head Neck. 2016 Jan;38(1):44-50. doi: 10.1002/hed.23836. Epub 2015 Jan 27.PMID:24992520
64) Kowalkowski MA, Mims MA, Day RS, Du XL, Chan W, Chiao EY. Longer duration of combination antiretroviral therapy reduces the risk of Hodgkin lymphoma: A cohort study of HIV-infected male veterans. Cancer Epidemiol. 2014 Aug;38(4):386-92. doi: 10.1016/j.canep.2014.05.009. Epub 2014 Jun 16. PMID:24947588; PMCID:PMC4447432
65) Sandulache VC, Hamblin J, Lai S, Pezzi T, Skinner HD, Khan NA, Dioun SM, Hartman C, Kramer J, Chiao E, Zhou X, Zevallos JP. Oropharyngeal squamous cell carcinoma (OPSCCA) in the veteran population is associated with traditional carcinogen exposure and poor clinical outcomes. Head Neck. 2014 May 7; PMID:24801106; PMCID:PMC4496314
66) Dinardo AR, Lewis DS, Koo HL, Goodman JC, Chiao E, Andrade R. Paradoxical immune reconstitution inflammatory syndrome due to toxoplasmic encephalitis: two cases and review of initiation of antiretroviral timing in toxoplasmic encephalitis IRIS. F1000Res. 2013 May 30;2. doi: 10.12688/f1000research.2-133. PMID:24358883; PMCID:PMC3814919
67) Valentin L, Dinardo A, Chiao E, Woc-Colburn L, Nachiappan A. Tuberculosis IRIS a mediastinal problem. F1000Res. 2013 Feb 18;2. doi: 10.12688/f1000research.2-54 PMID:24358876; PMCID:PMC3799548
68) Kowalkowski MA, Lulla P, Mims MP, Amirian ES, Chiao EY. Effect of Immune Reconstitution on the Incidence of HIV-Related Hodgkin Lymphoma. PLoS One. 2013 Oct 2;8(10):e77409. doi: 10.1371/journal.pone.0077409. PMID:24098586 ; PMCID:PMC3788758
69) Kim MH, Ahmed S, Preidis GA, Abrams EJ, Hosseinipour MC, Giordano TP, Chiao EY, Paul ME, Bhalakia A, Nanthuru D, Kazembe PN. Low Rates of Mother-to-Child HIV Transmission in a Routine Programmatic Setting in Lilongwe, Malawi. PLoS One. 2013 May 31;8(5):e64979. PMID:23741437; PMCID:PMC3669205
70) Amirian ES, Chiao EY, Hill KT, Marquez-Do D, Scheurer ME. Preliminary findings from a pilot study on the effects of interferon-α treatment on human papillomavirus infection in HIV and hepatitis C virus co-infected men. Sexual health. 2013 November 22; 10(6):570-570 https://doi.org/10.1071/SHv10n6ab2
71) Chiao EY, Hartman CM, El-Serag HB , Giordano TP. The Impact of HIV Viral Control on the Incidence of HIV-Associated Anal Cancer. 2013 Apr 22 JAIDS PMID:23614995; PMCID:PMC3797186
72) Amirian ES, Fickey PA Jr, Scheurer ME, Chiao EY. Anal Cancer Incidence and Survival: Comparing the Greater San-Francisco Bay Area to Other SEER Cancer Registries. PLoS One. 2013;8(3):e58919. doi: 10.1371/journal.pone.0058919. PMID:23484057; PMCID:PMC3590168
73) Betancourt EM, Wahbah MM, Been LC, Chiao EY, Citron DR, Laucirica R. Anal cytology as a predictor of anal intraepithelial neoplasia in HIV-positive men and women. Diagn Cytopathol. 2013 Jan 3. doi: 10.1002/dc.22941. PMID:23288861
74) Kim M, Ahmed S, Buck W, Preidis G, Hosseinipour M, Bhalakia A, Nanthuru D, Kazembe P, Chimbwandira F, Giordano T, Chiao E, Schutze G, Kline M, The Tingathe program: a pilot intervention using community health workers to create a continuum of care in the Prevention of Mother to Child Transmission of HIV (PMTCT) cascade of services in Malawi, Journal International AIDS Society. 2012 Jul 11;15(4):1-11 PMID:22789644; PMCID:PMC3499848
75) Chiao EY, Nambi PV, Naik AD. The impact of diabetes process and outcome quality measures on overall survival in patients with co-morbid colorectal cancer. J Cancer Surviv. 2010 Dec;4(4):381-7. PMID:20721633; PMCID:PMC3175493
76) Chiao EY, Dezube BJ, Krown SE, Wachsman W, Brock MV, Giordano TP, Mitsuyasu R, Pantanowitz L. Time for oncologists to opt in for routine opt-out HIV testing? JAMA. 2010 Jul 21;304(3):334-9. PMID:20639567; PMCID:PMC3160789
77) Chiao EY, Engels EA, Kramer JR, Pietz K, Henderson L, Giordano TP, Landgren O. Risk of immune thrombocytopenic purpura and autoimmune hemolytic anemia among 120 908 US veterans with hepatitis C virus infection. Arch Intern Med. 2009 Feb 23;169(4):357-63. PMID:19237719; PMCID:PMC2782638
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78) Chiao EY. Duration of anal human papilloma virus infection among immunocompetent women: clues to anal cancer epidemiology and possible prevention strategies. Clin Infect Dis. 2009 Mar 1;48(5):547-9. PMID:19191637
79) El-Serag HB, Engels EA, Landgren O, Chiao E, Henderson L, Amaratunge HC, Giordano TP. Risk of hepatobiliary and pancreatic cancers after hepatitis C virus infection: A population-based study of U.S. veterans. Hepatology. 2009 Jan;49(1):116-23. PMID:19085911; PMCID:PMC2719902
80) Davila JA, Chiao EY, Hasche JC, Petersen NJ, McGlynn KA, Shaib YH. Utilization and determinants of adjuvant therapy among older patients who receive curative surgery for pancreatic cancer. Pancreas. 2009 Jan;38(1):e18-25.PMID:18797424; PMCID:PMC3835699
81) Chiao EY, Giordano, TP, Richardson, P, El-Serag, HB. Human immunodeficiency virusassociated squamous cell cancer of the anus: epidemiology and outcomes in the highly active antiretroviral therapy era. J Clin Oncol. 2008 Jan 20;26(3):474-9. PMID:18202423
82) Arora A, Chiao E, Tyring SK. AIDS malignancies. Cancer Treat Res. 2007;133:21-67. PMID:17672037
83) Giordano TP, Henderson L, Landgren O, Chiao EY, Kramer JR, El-Serag H, Engels EA. Risk of non-Hodgkin lymphoma and lymphoproliferative precursor diseases in US veterans with hepatitis C virus. JAMA. 2007 May 9;297(18):2010-7. PMID:17488966
84) Chiao EY, Giordano TP, Palefsky JM, Tyring S, El Serag H. Screening HIV-infected individuals for anal cancer precursor lesions: a systematic review. Clin Infect Dis. 2006 Jul 15;43(2):223-33. Review. PMID:16779751
85) Chiao EY, Krown SE, Stier EA, Schrag D. A population-based analysis of temporal trends in the incidence of squamous anal canal cancer in relation to the HIV epidemic. J Acquir Immune Defic Syndr. 2005 Dec 1;40(4):451-5. PMID:16280701
86) Fields KS, Petersen MJ, Chiao E, Tristani-Firouzi P. Case reports: treatment of nevirapineassociated dress syndrome with intravenous immune globulin (IVIG). J Drugs Dermatol. 2005 JulAug;4(4):510-3. PMID:16004028
87) Stier EA, Krown SE, Chi DS, Brown CL, Chiao EY, Lin O. Anal dysplasia in HIV-infected women with cervical and vulvar dysplasia. J Low Genit Tract Dis. 2004 Oct;8(4):272-5. PMID:15874871
88) Teruya-Feldstein J, Chiao E, Filippa DA, Lin O, Comenzo R, Coleman M, Portlock C, Noy A. CD20-negative large-cell lymphoma with plasmablastic features: a clinically heterogenous spectrum in both HIV-positive and -negative patients. Ann Oncol. 2004 Nov;15(11):1673-9. PMID:15520070
89) Chiao EY, Krown SE. Update on non-acquired immunodeficiency syndrome-defining malignancies. Curr Opin Oncol. 2003 Sep;15(5):389-97. PMID:12960522
90) Chiao EY, Ries KM, Sande MA. AIDS and the elderly. Clin Infect Dis. 1999 Apr;28(4):740-5. PMID:10825030
91) Chiao E, Hadler J. From the Centers for Disease Control. Early childhood vaccination levels. JAMA. 1992 Feb 5;267(5):628-9NB. As reported from: CDC. Early Childhood Vaccination Levels Among Urban Children in Connecticut 1990 and 1991. MMWR RR2; 40: 888-90.1991. PMID:1731124
II. In Press 1. Gutierrez AM, Hofstetter JD, Dishner E, Chiao EY, Rai D, McGuire AL. A right to privacy and confidentiality: Ethical medical care for patients in United States immigration detention. Journal of Law, Medicine, and Ethics; Spring 2020
2.Sandulache VC, Wilde DC, Sturgis, Chiao EY, Sikora AG. A Hidden Epidemic of “Intermediate Risk” Oropharynx Cancer. Laryngoscope Investigative Otolaryngology.
III. Submitted/Under Review
1. Suk R, Montealegre J, Nemutlu G, Nyitray A, Chhatwal J, Bauer C, Chiao E, Schmeler K, Sonawane K, Deshmukh A. Knowledge of Human Papillomavirus (HPV), HPV Vaccine, and HPV-associated Cancers: Sex Differences in the United States, HINTS-5. JAMA IM.
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b. Abstracts given during last three years:
1) Elizabeth Chiao, MD, MPH, Dorothy J. Wiley PhD, Shelly Y Lensing, MS, Teresa Darragh, MD, Mark H Einstein, MD, Naomi Jay, PhD, J. Michael Berry Lawhorn, MD, Ashish A Deshmukh, PhD, Joel M Palefsky, MD, Timothy Wilkin, MD, Luis F Barroso, MD, Rebecca Levine, MD, Audrey L French, MD, Humberto Guiot MD, Ross D Cranston, MD, Elizabeth Stier, MD. Screening Tests for Anal High-Grade Squamous Intraepithelial Lesion Detection in Women Living with HIV. Poster presented at 17th International Conference on Malignancies in HIV/AIDS (ICMH), Bethesda, MD, October 21-22, 2019.
2) Eva Clark, Liang Chen,Yongquan Dong, Suchismita Raychaudhury, Jennifer Kramer, Donna White, Elizabeth Chiao. HIV+ Female Veterans Are At Increased Risk of Developing Genital Cancers. Poster presented at 17th International Conference on Malignancies in HIV/AIDS (ICMH), Bethesda, MD, October 21-22, 2019.
3) Eva Clark MD, Kathryn E. Royse, Yongquan Dong, Elaine Chang, Suchismita Raychaudhury, Jennifer Kramer, Donna White, Elizabeth Chiao. Burkitt Lymphoma in The ART Era: Stable Incidence, Poor Survival. Poster presented at 17th International Conference on Malignancies in HIV/AIDS (ICMH), Bethesda, MD, October 21-22, 2019.
4) Kathryn E. Royse, Jose M. Garcia, Donna L. White, Jennifer R. Kramer, Yongquan Dong, Suchismita Raychaudhury, Peter A. Richardson, Christine Hartman, Elizabeth Y. Chiao. Prostate adenocarcinoma incidence and risk factors in Veterans with well controlled HIV infection. In: Proceedings of the American Association for Cancer Research Annual Meeting 2019, March 29- Apr 3; Atlanta, GA. Philadelphia
5) Domgue JF, Messick C, Milbourne A, Guo M, Salcedo M, Chiao E, Dahlstrom K, Sturgis E, Schmeler K. Prevalence of anal dysplasia and cancer in women with lower genital tract dysplasia and cancer: Preliminary results of the PANDA Study. Accepted for presentation at the 17th Biennial Meeting of the International Gynecologic Cancer Society. Kyoto, Japan. September 14-16, 2018.
6) Mapakshi S, Kramer JR, Royse K, Chiao E, Garcia J, Kanwal F, El-Serag HB, Jiao L, White DL. Statins Use and Overall Survival in Pancreatic Cancer Patients: A Systematic Review and Metaanalysis. Accepted for presentation at the annual Digestive Disease Week 2018. Washington, DC. June 2-5, 2018.
7) Chang E, Thrift AP, White DL, Kramer J, Sabichi AL, Hartman C, Royse KE, Richardson P, Chiao EY. Nivolumab efficacy and safety in veterans with and without HIV infection. Accepted for presentation at the annual American Association for Cancer Research 2018. Chicago, Illinois. April 14-18, 2018.
8) Garcia JM, Kramer JR, Richardson PA, White D, Raychaudhury S, Chang E, Hartman C, Chiao EY. Effect of Diabetes, Metabolic factors and Medications on Risk of Lung Cancer among HIVInfected Veterans. Accepted for presentation at the annual Endocrine Society 2018. Chicago, Illinois. March 17-20, 2018.
9) Thrift AP, Royse KE, Richardson PA, Raychaudhury S, Desiderio R, White DL, Kramer JR, Chiao E. Risk of Non-AIDS-Defining Cancers among Veterans with well-controlled HIV Infection. Accepted for presentation at the Conference on Retroviruses and Opportunistic Infections, Boston, MA, March 4-8, 2018.
10) Thrift AP, White DL, Nguyen HP, Royse KE, Kramer JR, Chiao EY. Trends in incidence of Kaposi Sarcoma among males in all 50 United States between 2000 and 2013. Accepted for presentation at the Conference on Retroviruses and Opportunistic Infections, Boston, MA, March 4-8, 2018.
11) Mapakshi S, Mbang P, Kramer JR, White DL, Chiao EY. Impact of Protease Inhibitor Based Regimens on Incidence of HIV associated Kaposi Sarcoma: A Systematic Review of Literature.
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Presented at the International Conference on Malignancies in HIV/AIDS. Bethesda, MD. October 23-24, 2017
12) Thrift AP, Royse KE, Richardson PA, Raychaudhury S, Desiderio R, White DL, Kramer JR, Chiao EY. Risk Of Non-AIDS-Defining Cancers Among Veterans With Well-Controlled HIV Infection. Presented at the International Conference on Malignancies in HIV/AIDS. Bethesda, MD. October 23-24, 2017
13) Chang E, Hartman C, Royse K, Kramer J, White D, Richardson P, Chiao EY. A Case Series of Nivolumab in Veterans with HIV Infection and Malignancy. Presented at the International Conference on Malignancies in HIV/AIDS. Bethesda, MD. October 23-24, 2017
14) Mapakshi SR, Kramer JR, Royse KE, Chiao E, Garcia JM, Kanwal F, El-Serag H, Jiao L, White D. Statins Use and Overall Survival in Pancreatic Cancer Patients: A Systematic Review and Meta-analysis. Presented at the annual Digestive Disease Week Meeting, Chicago, Illinois, May 6, 2017.
15) Biggerstaff K, Kramer J, Chiao E, Richardson P, Orengo-Nania S, Frankfort B, White D. Open Angle Glaucoma (OAG) and Uric Acid (UA) Levels in the Veteran Population. Presented at the 27th Annual Meeting of the American Glaucoma Society, Coronado, California. March 3, 2017.
16) Biggerstaff K, Frankfort B, Orengo-Nania S, Garcia J, Chiao E, Kramer J, White D. Diagnostic Algorithms to Identify Primary Open Angle Glaucoma in Veterans Affairs Administrative Databases. Poster presented at 2016 Michael E. DeBakey VA Medical Center Research Poster Day, Houston, Texas, October 26, 2016.
17) Biggerstaff K, Frankfort B, Orengo-Nania S, Garcia J, Chiao E, Kramer J, White D. Diagnostic Algorithms to Identify Primary Open Angle Glaucoma in Veterans Affairs Administrative Databases. Poster presented at 2016 Baylor Graduate Student Symposium, Houston, Texas, October 19, 2016.
18) Varier I, Chew E, Ramsey D, Sikora A, Chiao E. HEALTHCARE UTILIZATION IN HPV RELATED CANCERS. Presented at the AHNS 9th International Conference on Head and Neck Cancer, Seattle, WA, July 18, 2016.
19) Wilkin TJ, Chen H, Cespedes M, Paczuski P, Godfrey C, Chiao E, Luque A, Webster-Cyriaque JY, Bastow B, Cranston R. ACTG A5298: A Phase 3 Trial of the Quadrivalent HPV Vaccine in Older HIV+ Adults. CROI February 23, 2016.
20) Oliver N, Hartman CM, Kramer JR, Chiao EY. Statin Use and the Impact on Cirrhosis Progression in a HIV/HCV Co-infected Population. Poster Presented at the Conference on Retroviruses and Opportunistic Infections, Boston, MA, February 23, 2016.
21) Oliver N, Hartman CM, Kramer JR, Chiao EY. Metabolic Risk Factors Associated with HCC Development in an HIV/HCV Co-Infected Cohort. Poster Presented at the 15th Conference on Malignancies in AIDS and Other Acquired Immunodeficiencies, Bethesda, MD, October 26, 2015.
c. Books: a. complete books written: N/A b. books edited: N/A c. book chapters written 1) Chang E, Chiao EY. Oncologic Manifestations of HIV Infection. In The Sub-Specialty Care of HIV-Infected Patients. Nova Scientific Publications, 2018. 2) Oliver N, Chiao EY. Malignant Diseases in HIV. In AAHIVM Fundamentals of HIV Medicine. Oxford University Press. 2017 3) Chiao E. Malignant Diseases in HIV. In Looking for Daylight: Evidence in Medicine and Federal Policy on Comparative Effectiveness Research. Oxford University Press, 2016
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4) Mbang P, Chiao E. Malignancies and Neoplasms. In AAHIMV Fundamentals of HIV Medicine. AAHIVM, 2012
5) Tarakaji M, Chiao E. Anal Canal Carcinoma. In Tumor Board Reviews, Guidelines and Case Reviews in Oncology, Demos Medical. 2012
6) Chiao. E. Epidemiology and Clinical Characteristics of Non-AIDS-Defining Malignancies in Molecular basis for therapy of AIDS defining cancers, Springer 2010
7) Chiao EY, Krown SE. Non-AIDS-Defining Cancers in HIV Infected Individuals. In, Viral and Immunological Malignancies. PA Volberding and J Palefsky, eds. American Cancer Society, Atlas of Clinical Oncology. 2006
8) Arora A, Chiao E, Tyring S. Treatment of AIDS-Associated Viral Oncogenesis. In AIDS Associated Viral Oncogenesis. Myers, C editor. Springer publishing, 2007.
d. Other works communicating research results to scientific colleagues: N/A e. Other works communicating research results to general public : N/A
III. TEACHING INFORMATION
A. Educational Leadership Roles 1. CSTP research mentor, 2. T32 research mentor, Infectious Disease T32, medical oncology T32
B. Didactic course work 1. Courses taught at current institution: a. Implicit Association Test (IAT) “Best Intentions” Workshop for the LACE course 2009-present b. Patient Safety Course Steering Committee, 2011-2012 c. Infectious Diseases Course: Viruses and Cancer 2012-2018 2. Courses taught at other institutions: N/A 3. Courses expected to be taught at BCM: Undergraduate Medical Education: Infectious Diseases Course
C. Curriculum development work None
D. Non-didactic teaching 1. Resident training: 80 hours 2. Clinical Fellow training: Ben Taub General Hospital 4 weeks per year 3. Graduate Student training: PhD Dissertation Committee: Mark Kowalkowski, PhD September, 2013, Ashish Deshmukh, UTSPH PhD 2014, Hsuan-Chen Liu PhD 2019 (expected) 4. Estimate of kinds of non-didactic teaching expected at BCM: Mentor for internal Medicine Residents and Fellows Research; Dan Haim Cohen 2007-2008, and Natalie Dailey 2009-2010, Virginia Jackson 2011-2012, Pamela Mbang 2015-2016, Nora Oliver, Elaine Chang 2017-2018, Eva Clark 2018-2021 5. Medical School Mentor 2009-2011 Medical Students: Erin Chew 2016-2018, Alison Kremer Yoder 2018-2019 6. Mentor Junior Faculty: Maria Kim, MD; Saeed Ahmed, MD; Jose Zevallos, MD- recipient VISN 16 Pilot; Aaron Thrift, PhD, Michael Scheurer, PhD, Vlad Sandluche, MD/PhD, Bich Dang, MD, Andrew Dinardo, MD (pediatrics), Lillie Lin, MD (MDACC), Ashish Deshmukh, MD (University of Florida), Rachel Bender Ignacio, MD (University of Washington), Alan Nyitray, PHD (University of Texas School of Public Health)
E. Lectures and Presentations: 1. International: a. Chiao, E. Panelist, Confronting the Challenges Relevant to HIV/AIDS Malignancies in SubSaharan Africa Symposium, Capetown, South Africa 7/31-8/2/2015
2. National:
Page 16 of 18

Case 1:2C0a-csve-241:1495-7c-vK-0M0W226DoDcoucmuemnet n1t-1322-2EnFteilereddoonn0F3L/2S7D/2D0oinckTeXt S04D/05P/a2g0e2029Poaf g3e0 29 of 30
a. Chiao, E. Human Immunodeficiency Virus and Cancer: A Multi-disciplinary Approach to Optimizing and Advancing Clinical Care. Boston University Infectious Diseases Grand Rounds, March 21, 2019
b. Chiao, E. HIV in the Southern United States. Symposium: An Interdisciplinary History of the Struggle Against HIV/AIDS. University of Utah Law school, October 2, 2015
c. “HIV and the 50 plus population” 2007. AETC. Cornell University Medical College, NY, NY. June 15, 2007
d. “Oncology and HIV Disease” 2005. Quarterly Roundtable Discussion. Moderated by Kristen Ries, University of Utah.
3. Regional: a. The Epidemiology and Outcomes of HPV-Associated Malignancies. Cancer Program Continuing Medical Education, Alexandria, VA, 8/8/13 b. “HIV and the over 50 population” 15th Annual Thomas Street HIV Conference. Houston Hyatt. December 16, 2006 c. “HIV and the Elderly” West Houston Medical Center. Sponsored by Texas-Oklahoma AIDS Education Training Center. April 8, 2005
4. Local: (See FAP Educational Portfolio for additional recurring lectures) a. Research in Progress: VA Research Symposium, Michael E. Debakey, January 2018 b. Research in Progress: Infectious Diseases Division, Baylor College of Medicine, May 2017 c. Citywide Infectious Diseases Conference, Baylor College of Medicine, March 2016 d. BCM Grand Rounds: “Infectious Disease Update: HPV vaccine update”, January 2012 e. BCM Grand Rounds: “CPC: Lumps on the Head”, January 2012 f. Research in Progress: Infectious Diseases Division, Baylor College of Medicine, February 2008 g. CPC Internal Medicine, Baylor College of Medicine March 2007 h. “Update on AIDS-Related Maligancies” VA and Thomas Street Clinical Noon Conferences. January, 2006 i. Anal Cancer and Anal Cancer Precursors among HIV-Infected Individuals. Quality Research in Progress Seminar Series. Houston Center for Quality Care and Utilization Services (HCQCUS). October 8, 2005
F. Visiting professorships: N/A
IV. MEDICAL AND SERVICE INFORMATION
A. Patient care responsibilities 1. Department-wide: N/A 2. Section or specialty: a. HIV/Infectious Disease Attending: Ben Taub General Hospital 1. 1.5 months per year, 2006-current b. HIV/Infectious Disease Clinic: Thomas Street Clinic 1. ½ day every other week, 2006-current c. Medical Oncology Clinic: Thomas Street Clinic 1. ½ day every other week, plus emergency weekly visits, 2006-current d. Anal Dysplasia Clinic: Thomas Street Clinic 1. ½ day every week, 2006-current e. Research Clinic (Med Onc and Anal Dysplasia) for AMC trials 1. ½ day every week 2008-current
B. Clinical Leadership or Business Development: N/A
C. Voluntary Health Organization Participation: N/A
V. SERVICE CONTRIBUTIONS
Page 17 of 18

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A. Administrative assignments 1. Department administration, committees, etc: 2. College, School or University administration, committees, etc a. IRB member July 2006- July 2009, b. Baylor Department Medicine Research Committee, January 2018
B. National, Regional or Local Participation in Professional or Voluntary Organizations 1. Hurricane “Harvey” Hero September 2017
Last updated 12/30/2019
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Case 1:20-cv-21457-KMW Document 1-13 Entered on FLSD Docket 04/05/2020 Page 1 of 2
EXHIBIT 10

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EXHIBIT 11

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EXHIBIT 12

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EXHIBIT 13

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EXHIBIT 14

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EXHIBIT 15

Case 1:20-cv-21457-KMW Document 1-18 Entered on FLSD Docket 04/05/2020 Page 2 of 14

Case 5:19-cv-01546-JGB-SHK Document 81-12 Filed 03/24/20 Page 1 of 13 Page ID #:874

1 Timothy P. Fox (CA Bar 157750)

tfox@creeclaw.org 2 Elizabeth Jordan*

3

ejordan@creeclaw.org CIVIL RIGHTS EDUCATION AND

4

ENFORCEMENT CENTER 1245 E. Colfax Avenue, Suite 400

5 Denver, CO 80218 Tel: (303) 757-7901

6 Fax: (303) 872-9072

7 Lisa Graybill*

lisa.graybill@splcenter.org

8 Jared Davidson*

jared.davidson@splcenter.org 9 SOUTHERN POVERTY LAW

10

CENTER 201 St. Charles Avenue, Suite 2000

11

New Orleans, Louisiana 70170 Tel: (504) 486-8982

12 Fax: (504) 486-8947

Stuart Seaborn (CA Bar 198590) sseaborn@dralegal.org Melissa Riess (CA Bar 295959) mriess@dralegal.org DISABILITY RIGHTS ADVOCATES 2001 Center Street, 4th Floor Berkeley, California 94704 Tel: (510) 665-8644 Fax: (510) 665-8511

13

14

Attorneys for Plaintiffs (continued on next page)
15

16

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

17

EASTERN DIVISION – RIVERSIDE

18
FAOUR ABDALLAH FRAIHAT, et al., Case No.: 19-cv-01546-JGB(SHKx)

19

Plaintiffs,

20

v.

DECLARATION OF

DR. CARLOS FRANCO-PAREDES

21 U.S. IMMIGRATION AND CUSTOMS

22 ENFORCEMENT, et al.,

Date: March 24, 2020

23

Defendants.

24

25

26

27

28

Case 1:20-cv-21457-KMW Document 1-18 Entered on FLSD Docket 04/05/2020 Page 3 of 14

Case 5:19-cv-01546-JGB-SHK Document 81-12 Filed 03/24/20 Page 2 of 13 Page ID #:875

1 William F. Alderman (CA Bar 47381)

walderman@orrick.com 2 Jake Routhier (CA Bar 324452)

3

jrouthier@orrick.com ORRICK, HERRINGTON &

4

SUTCLIFFE LLP 405 Howard Street

5

San Francisco, CA 94105 Tel: (415) 773-5700

6 Fax: (415) 773-5759

7 Michael W. Johnson**

mjohnson1@willkie.com

8 Dania Bardavid**

dbardavid@willkie.com 9 Jessica Blanton**

10

jblanton@willkie.com Joseph Bretschneider**

11

jbretschneider@willkie.com WILLKIE FARR &

12 GALLAGHER LLP 787 Seventh Avenue

13 New York, NY 10019

Tel: (212) 728-8000

14 Fax: (212) 728-8111

15 Maia Fleischman*

16

maia.fleischman@splcenter.org SOUTHERN POVERTY LAW

17

CENTER 2 South Biscayne Boulevard

18

Suite 3750 Miami, FL 33131

19 Tel: (786) 347-2056

Fax: (786) 237-2949

20

Christina Brandt-Young*

21 cbrandt-young@dralegal.org

DISABILITY RIGHTS 22 ADVOCATES

23

655 Third Avenue, 14th Floor New York, NY 10017

24

Tel: (212) 644-8644 Fax: (212) 644-8636

25

Mark Mermelstein (CA Bar 208005) mmermelstein@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 777 South Figueroa Street Suite 3200 Los Angeles, CA 90017 Tel: (213) 629-2020 Fax: (213) 612-2499
Leigh Coutoumanos** lcoutoumanos@willkie.com WILLKIE FARR & GALLAGHER LLP 1875 K Street NW, Suite 100 Washington, DC 20006 Tel: (202) 303-1000 Fax: (202) 303-2000
Shalini Goel Agarwal (CA Bar 254540) shalini.agarwal@splcenter.org SOUTHERN POVERTY LAW CENTER 106 East College Avenue Suite 1010 Tallahassee, FL 32301 Tel: (850) 521-3024 Fax: (850) 521-3001
Maria del Pilar Gonzalez Morales (CA Bar 308550) pgonzalez@creeclaw.org CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER 1825 N. Vermont Avenue, #27916 Los Angeles, CA 90027 Tel: (805) 813-8896 Fax: (303) 872-9072

26 Attorneys for Plaintiffs (continued from previous page) *Admitted Pro Hac Vice
27 **Pro Hac Vice Application Forthcoming

28

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Case 5:19-cv-01546-JGB-SHK Document 81-12 Filed 03/24/20 Page 3 of 13 Page ID #:876

1

Declaration of Dr. Carlos Franco-Paredes

2

The Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2), is a

3 newly emerging zoonotic agent initially identified in December 2019 that, as of

4 today, has spread to more than 150 countries causing 297,000 confirmed cases and

5 12,755 deathsa. This viral pathogen causes the Coronavirus Disease 2019 (COVID-

6 19). Infection with COVID-19 is associated with significant morbidity and

7 mortality especially in patients above 55 years of age and those with chronic

8 medical conditionsb,c,d.

9

Immigration detention centers in the U.S. are tinderboxes for the

10 transmission of highly transmissible infectious pathogens including the SARS-

11 CoV-2, which causes COVID-19. Given the large population density of

12 immigration detention centers and the ease of transmission of this viral pathogen,

13 the attack rate inside these centers will take exponential proportions, consuming

14 significant medical and financial resources.

15

As an infectious disease clinician with a public health degree in the

16 dynamics of infectious disease epidemics and pandemics and twenty years of

17 clinical experience, I am concerned about the treatment of immigrants inside

18 detention centers which could make the current COVID-19 epidemic worse in the

19 U.S. by having a high case fatality rate among detainees and potentially spreading

20 the outbreak into the larger community. A copy of my CV is presented in Exhibit

21 A.

22

I have experience providing care to individuals in a civil detention center

23 and have performed approximately two medical forensic examinations and fifteen

24 medical second opinion evaluations for patients in the custody of the Department

25 of Homeland Security (DHS). Based on my conversations with patients, my own

26 observations, and information that exists regarding the resources available within

27 immigration detention facilities as detailed by the ICE Health Services Corps, it is

28 my professional opinion that the medical care available in DHS custody cannot

1

CasCea1s:e205-:c1v9--2c1v4-05175-K4M6-WJGBD-SoHcuKmeDnot c1u-1m8enEt 8n1te-r1e2d oFnileFdLS0D3/2D4o/2ck0etP0a4g/0e54/2o0f2103 PPaaggee5IDof 14 #:877

1 properly accommodate the needs of patients should there be an outbreak of 2 COVID-19 in an immigration detention facility. The physical and emotional 3 trauma that detainees and asylum seekers experience can weaken their immune 4 systems, resulting in increased risk of severe manifestations of infections. For 5 example cases of influenza virus infections causing pneumonia and respiratory 6 failure, - albeit influenza infection is not as communicable and not transmitted 7 during asymptomatic infection as it is the case with SARS-CoV-2 -, has caused 8 human deaths inside immigration detention centers e.

9 • For people in the highest risk populations, the fatality rate of COVID-19
10 infection is about 15 percent.
11

12

According to the CDC, groups deemed to be at high risk of developing

13 severe disease and dying from COVID-19 include those above 55 years of age and

14 those with underlying medical conditions (regardless of their age) (See Table 1).

15 These cases are also amplifiers or hyper-spreaders of the infection since they tend

16 to have high viral concentrations in their respiratory secretions.

17

The clinical experience in China, South Korea, Italy and Spain has shown

18 that 80% of confirmed cases tend to occur in persons 30-69 years of age regardless

19 of whether they had underlying medical conditions. Of these, 20% develop severe

20 clinical manifestations or become critically ill. Among those with severe clinical

21 manifestations, regardless of their age or underlying medical conditions, the virus

22 progresses into respiratory failure, septic shock, and multiorgan dysfunction

23 requiring intensive care support including the use of mechanical ventilator support.

24 The overall case fatality rate is 10-14% of those who develop severe disease. In

25 China, 80% of deaths occurred among adults > 60 yearsc.

26 Table 1. Risk factors for developing severe disease and death outside the U.S.

27 Age groups at high risk of

50-59 years (1% CFR)*

28 developing severe disease and dying 60-69 years (3.6% CFR)

without underlying medical

70-79 years (8% CFR)

2

Case 1:20-cv-21457-KMW Document 1-18 Entered on FLSD Docket 04/05/2020 Page 6 of 14
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1 conditions

2 Groups with underlying medical 3 conditions at high risk of dying 4 regardless of their age

-Cardiovascular Disease (congestive heart failure, history of myocardial infarction, history of cardiac surgery)

5

-Systemic Arterial Hypertension (high

6

blood pressure)

7

-Chronic Respiratory Disease (asthma,

8

chronic obstructive pulmonary disease including chronic bronchitis or

9

emphysema, or other pulmonary

10

diseases)

11

-Diabetes Mellitus

12

-Cancer

13

14

-Chronic Liver Disease

15

-Chronic Kidney Disease

16

-Autoimmune Diseases (psoriasis,

17

rheumatoid arthritis, systemic lupus

18

erythematosus)

19

-Severe Psychiatric Illness **

20 -History of Transplantation
21

22

-HIV/AIDS

23

-Pregnancy***

24 *CFR= Case Fatality Rate. This is an indicator of lethality used during outbreaks to identify the number of
individuals who succumb out of those infected.
25 ** In South Korea, 20% of deaths occurred in what they defined as Psychiatric Illness (J Korean Med Sci 2020;
35(10): e112).
26 *** Extrapolation from previous influenza pandemics including the 2009 pandemic that increased pregnancy-related
mortality 4-fold particularly during second and third trimesters. The reason is due to immune mediated changes
27 during pregnancy and lung function compromise due to gravid uterus (Omer S. N Engl J Med 2017;376(13): 1256-
1267.
28

3

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1

There is a growing number of confirmed cases in the U.S., increasing

2 number of hospitalizations and admissions to intensive care units, and many

3 deaths. In this wave of the pandemic or in subsequent ones, it is likely the number

4 of infected individuals will continue to augment. In the closed settings of

5 immigration detention centers, where there is overcrowding and confinement of a

6 large number of persons, networks of transmission become highly conducive to

7 spread rapidly. 8 As of March 16, 2020c, cases of COVID-19 in the U.S. reported by the CDC

9 shows that 31% of COVID-19 cases, 45% of hospitalizations, and 80% of deaths

10 occurred among adults > 65 years of age. Case-fatality in persons aged > 85 ranged

11 from 10-27%, followed by 3-11% among persons aged 65-84 years, 1% among

12 persons aged 55-64 and <1% among persons 20-54 years of age.

13

Reports by the Chinese CDC demonstrate that the case fatality rate is highest among critical

14 cases in the high-risk categories with COVID at 49%f. Case fatality was higher for patients with

15 comorbidities: 10.5% for those with cardiovascular disease, 7% for diabetes, and 6% each for

16 chronic respiratory disease, hypertension, and cancer. Case fatality for patients who developed 17 respiratory failure, septic shock, or multiple organ dysfunction was 49%b.

18 • For people with these risk factors, COVID-19 can severely damage
19 lung tissue, which requires an extensive period of rehabilitation, and
20 in some cases, can cause permanent loss of respiratory capacity.
21

22

There is preliminary evidence that persons with COVID-19 who are

23 recovering from severe disease and who have developed extensive pulmonary 24 disease including Acute Respiratory Distress Syndrome (ARDS)g may have long-

25 term sequelae similar to other infectious pathogens evolving in a similar pattern.

26 Long term sequelae of those with sepsis, ARDS and respiratory failure identified in

27 the literature include long-term cognitive impairment, psychological morbidities,

28 neuromuscular weakness, pulmonary dysfunction, and ongoing healthcare

4

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1 utilization with reduced quality of lifeh and need for rehabilitation servicesi.

2 • COVID-19 may also target the heart muscle, causing a medical
3 condition called myocarditis, or inflammation of the heart muscle.
4 Myocarditis can affect the heart muscle and electrical system,
5 reducing the heart’s ability to pump. This reduction can lead to
6 rapid or abnormal heart rhythms in the short term, and long-term
7 heart failure that limits exercise tolerance and the ability to work.
8

9

The full description of the pathogenesis of COVID-19 requires to be

10 completely elucidated. However, there is clinical evidence that in addition to the

11 severe lung injury associated to this viral infection, some persons may also develop

12 myocardial involvement that appears to be the result of either direct viral infection

13 or caused by the immune response to SARS-CoV-2. From the published case

14 reports, myocarditis caused by this viral pathogen is associated with congestive 15 heart failure, cardiac arrhythmias and deathj. Similar to other viral myocarditis, 16 most patients may develop long-term myocardial damagek.

17 • Emerging evidence also suggests that COVID-19 can trigger an over-
18 response of the immune system, further damaging tissues in a
19 cytokine release syndrome that can result in widespread damage to
20 other organs, including permanent injury to the kidneys and
21 neurologic injury. These complications can manifest at an alarming
22 pace.
23

24

Among persons infected with SARS-CoV-2 and developing COVID-19,

25 severe disease systemic inflammation is associated with adverse outcomes l.

26 However, there is evidence that the use of corticosteroids have not shown benefit

27 and they might be more likely to cause harm when administered to persons with 28 ARDS caused by COVID-19m. Similar to influenza infection, acute lung injury and

5

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1 acute respiratory distress syndrome are most likely caused by the respiratory
2 epithelial membrane dysfunction leading to acute respiratory distress syndrome l,n.

3 Preliminary evidence from case reports and small cases series from China and

4 South Korea confirm that there is minimal inflammation and evidence of cell 5 necrosis in the form of apoptosis of the respiratory epithelium o. The resultant

6 tissue hypoxia is responsible and potential concomitant bacterial sepsis contribute

7 to multiorgan dysfunction and death. If a patient with COVID-19 develops

8 myocarditis, cardiogenic shock caused by fulminant myocarditis may also 9 contribute to the overall occurrence of multiple organ failure k.

10 • Patients can show the first symptoms of infection in as little as two
11 days after exposure, and their condition can seriously deteriorate in
12 five days or sooner.
13

14

There is evidence of substantial undocumented infection facilitating the

15 rapid dissemination of novel coronavirus SARS-CoV-2 which is responsible for 16 79% of documented cases of COVID-19 in Chinao. Once an individual is exposed

17 to this virus from either a symptomatic individual (21% of cases) or from

18 asymptomatic individuals (79% of cases), the shortest incubation period is 3 days 19 with a median incubation period of 5.1 (95% CI 4.5 to 5.8 days)p. Overall, 97.5% 20 of persons who develop symptoms do so within 11.5 days of the initial exposure p.

21 Most persons with COVID-19 who develop severe disease do so immediately after 22 admission or within 3-5 days from their initial presentationc,q and represent 53% of 23 those requiring intensive care unit admissions and advanced supportive carec. At

24 my current institution, the two confirmed deaths occurred within 48 hours of

25 admission to the hospital.

26 • Most people in higher risk categories who develop serious disease
27 will need advanced support. This level of supportive care requires
28 highly specialized equipment that is in limited supply, and an entire

6

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1

team of care providers, including 1:1 or 1:2 nurse to patient ratios,

2

respiratory therapists, and intensive care physicians. This level of

3

support can quickly exceed local health care resources.

4 There is sufficient evidence that the SARS-CoV-2 pandemic has an
5 overwhelming impact in healthcare utilization in all settings (China, South Korea,
6 Italy, France, Germany, and others). In the U.S.c, current evidence demonstrates 7
that COVID-19 can result in severe disease, including hospitalization (31%) and 8
admission to an intensive care unit (53% of ICU admissions). To respond to this 9
overwhelming demand in ICU admissions, there is a need for a multidisciplinary 10
approach that is time consuming and requires highly trained personnel including 11
pulmonary and critical care physicians, nurses, respiratory therapists, 12
phlebotomists, social workers, and case managers. The care of this group of 13
patients also requires subspecialists including nephrologists, infectious disease 14
physicians, hematologists, hospitalists, and others. Patients on mechanical 15
ventilation or requiring extracorporeal membrane oxygenation require additional 16
staff including perfusionists and 1:1 dedicated nursing care. Currently, medical 17
centers in many urban and rural settings in the U.S. are functioning at full capacity. 18
Therefore, preventing the occurrence of an outbreak within a detention facility 19
would reduce the risk of overwhelming local healthcare systems. Indeed, a 20
potential outbreak occurring within an immigration detention center, the number of 21
detainees who will require transfer outside the facility for specialized care may 22
exceed the capacity of local hospitals. This is particularly important in rural and 23
semirural settings where many immigration detention centers are located, and 24
where they may have contact with a limited number of surrounding medical 25
centers. 26

27 Conclusions:

28 There is a need to proactively consider alternative strategies to dilute the

7

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1 potential community-based impact of an outbreak inside immigration detention

2 centers. Therefore, it is my professional view that releasing detainees/asylum

3 seekers on humanitarian parole from these centers constitutes a high-yield public

4 health intervention that may significantly lessen the impact of this outbreak not

5 only within detention centers but among the communities surrounding these

6 centers. In particular, targeting the release of persons in the age groups at risk of

7 severe disease and death; and persons with underlying medical conditions, may

8 lessen the human and financial costs that this outbreak may eventually impose on

9 ICE detention facilities nationwide. Responding to an outbreak requires significant

10 improvements in staffing, upgrading medical equipment, substantial supplies

11 including antibiotics, intravenous infusions, cardiac and respiratory monitors,

12 devices for oxygen supply, and personal protection supplies among persons at high

13 risk of severe COVID-19 disease.

14

15

A large outbreak of COVID-19 in an immigration detention facility would

16 put a tremendous strain on the medical system to the detriment of patients in the

17 communities surrounding these centers. It is reasonable to anticipate that there will

18 be the loss of additional lives that could have otherwise been saved.

19

20 I declare under penalty of perjury that the statements above are true and correct to

21 the best of my knowledge.

22

23 Date: March 21, 2020

24

25

26

27

28

Carlos Franco-Paredes, MD, MPH, DTMH (Gorgas) Associate Professor of Medicine

8

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1 Division of Infectious Diseases

2

Department of Medicine Program Director Infectious Disease Fellowship

3 Training Program, University of Colorado

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

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1 References

2

a. Johns Hopkins University. Coronavirus Resource Center Available at:

https://coronavirus.jhu.edu/map.html. Accessed: March 21, 2020.

3

b. CDC-Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease

(COVID-19) Available at: https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-

4

management-patients.html). Accessed: March 21, 2020.

c. CDC COVID 19 Response Team. Severe outcomes among patients with coronavirus disease 2019

5

(COVID-19) – United States, February 12-March 16, 2020. Available at:

6

https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm. Accessed: March 21, 2020. d. Rodriguez-Morales AJ, Cardona-Ospina JA, Gutiérrez-Ocampo E, Villamizar-Peña R, Holguin-Rivera Y,

7

Escalera-Antezana JP, Alvarado-Arnez LE, Bonilla-Aldana DK, Franco-Paredes C, Henao-Martinez AF,

Paniz-Mondolfi A, Lagos-Grisales GJ, Ramírez-Vallejo E, Suárez JA, Zambrano LI, Villamil-Gómez WE,

8

Balbin-Ramon GJ, Rabaan AA, Harapan H, Dhama K, Nishiura H, Kataoka H, Ahmad T, Sah R; Latin

American Network of Coronavirus Disease 2019-COVID-19 Research (LANCOVID-19). Electronic

9

address: https://www.lancovid.org. Clinical, laboratory and imaging features of COVID-19: A systematic

review and meta-analysis.Travel Med Infect Dis. 2020 Mar 13:101623. doi: 10.1016/j.tmaid.2020.101623.

10

[Epub ahead of print].

e. Foppian Palacios C, Opensahw JJ, Travassos MA. Influenza in U.S. detention centers- the desperate need

11

for immunization. N Engl J Med 2020; 382(9): 789-792.

f. Novel Coronavirus Pneumonia Emergency Response Epidemiology Teamexternal iconexternal icon. [The

12

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China]. Zhonghua Liu Xing Bing Xue Za Zhi. 2020;41(2):145–151. DOI:10.3760/cma.j.issn.02546450.2020.02.003.

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g. Mart M, Ware LB. The long-lasting effects of the acute respiratory distress syndrome. Expert Rev Respir Dis 2020; https://doi.org/10.1080/17476348.2020.1743182.

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h. Wu C, Chen X, Cai Y, Xia J, Zhou X, Xu S, Huang H, Zhang L, Zhou X, Du C, Zhang Y, Song J, Wang S, Chao Y, Yang Z, Xu J, Zhou X, Chen D, Xiong W, Xu L, Zhou F, Jiang J, Bai C, Zheng J, Song Y. Risk

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Factors Associated With Acute Respiratory Distress Syndrome and Death in Patients With Coronavirus Disease 2019 Pneumonia in Wuhan, China. JAMA Intern Med. 2020 Mar 13. doi:

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10.1001/jamainternmed.2020.0994. [Epub ahead of print]. i. Koh GC, Hoenig H. How should the rehabilitation community prepare for 2019-nCOV? Arch Phys Med

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Rehabil 2020 Mar 16. Pii: S0003-9993(20)30153-2. Doi: 10.1016/j.apmr.2020.03.003. (Epub ahead of

print].

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j. Chen C, Zhou Y, Wen WD. SARS-CoV-2: a potential novel etiology of fulminant myocarditis. Herz 2020;

March 5. https://doiorg/10.1007/s00059-020-04909-z.

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k. Hu H, Ma F, Wei X, Fang Y. Coronavirus fulminant myocarditis saved with glucocorticoid and human

immunoglobulin. Eur Heat J 2020; Mar 16. [Epub ahead of print].

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l. Li R, Pei S, Chen B, Song , Zhang T, Shaman J. Substantial undocumented infection facilitates the rapid

dissemination of novel coronavirus (SARS-CoV2). Science 10.1126/scienceabb3221 (2020).

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m. Russell CD, Millar JE, Baillie JK. Clinical evidence does not support corticosteroid treatment for 2019-

nCoV lung injury. Lancet Infect Dis 2020; 395: 474-475.

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n. Hoffmann M, Kleine-Weber H, Schroeder S, Krüger N, Herrler T, Erichsen S, Schiergens TS, Herrler

G, Wu NH, Nitsche A, Müller MA, Drosten C, Pöhlmann S. SARS-CoV-2 Cell Entry Depends on ACE2

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and TMPRSS2 and Is Blocked by a Clinically Proven Protease Inhibitor. Cell. 2020 Mar 4. pii: S0092-

8674(20)30229-4. doi: 10.1016/j.cell.2020.02.052. [Epub ahead of print]

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o. Tian S, Hu W, Niu L, Liu H, Su H, Xiao SY. Pulmonary pathology of early phase 2019 novel coronavirus

(COVID-19) pneumonia in patients with lung cancer. J Thorac Oncol 2020;

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p. Lauer SA, Grantz KH, Bi Q, Jones FK, Zheng Q, Meredith HR, Azman AS, Reich NG, Lessler J.The

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 Case 1:20-cv-21457-KMW Document 5 Entered on FLSD Docket 04/05/2020 Page 1 of 18

THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

)

ANTHONY SWAIN; ALEN BLANCO; )

BAYARDO CRUZ; RONNIEL FLORES; )

WINFRED HILL; DEONDRE WILLIS; )

PETER BERNAL, individually and on )

behalf of all others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

DANIEL JUNIOR, in his official capacity )

as Director of the Miami-Dade

)

Corrections and Rehabilitation Department; )

MIAMI-DADE COUNTY, FLORIDA, )

)

Defendants.

)

___________________________________ )

Case No. 1:20-cv-21457 (Class Action)

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND INCORPORATED MEMORANDUM OF LAW

Plaintiffs Anthony Swain, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill,

Deondre Willis, and Peter Bernal, hereby move the Court to certify this action as a class

action under Federal Rules of Civil Procedure 23(a) and 23(b)(2).

INTRODUCTION

This case is about Defendants’ failure to act to protect the lives of people jailed in Miami’s

Metro West Detention Center (“Metro West”) from novel coronavirus and its resulting disease,

COVID-19. Defendants have failed to respond to the urgent threat posed to people confined in the

jail by this growing pandemic, making it impossible for these individuals to observe the

precautionary steps necessary to keep themselves safe, such as social distancing, increased

personal hygiene, sanitizing one’s environment, access to testing, and wearing protective clothing.

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Defendants’ disregard of the known risks of illness and death exposes jail detainees to a highly fatal, infectious disease in violation of their rights under the Eighth and Fourteenth Amendments. Named Plaintiffs challenge these unconstitutional conditions and now move for class certification under Federal Rules of Civil Procedure 23(a) and 23(b)(2). Named Plaintiffs also move for appointment of the undersigned as class counsel under Rule 23(g).
CLASS DEFINITION This class action seeks to require Defendants to implement procedures that provide reasonable medical care for Plaintiffs and keep them reasonably safe from contracting communicable disease while in custody. But some people are so vulnerable to COVID-19 that no procedures could be implemented fast enough to protect them; these people must be released, and therefore seek a writ of habeas corpus. Plaintiffs, therefore, seek to certify one class with one subclass as follows: • The Class (“Metro West Class”) is defined as: “All current and future persons detained
at Metro West during the course of the COVID-19 pandemic.” • The Subclass (“Medically-Vulnerable Subclass”) is defined as: “All current and future
persons held at Metro West over the age of fifty, as well as all current and future persons held at Metro West of any age who experience an underlying medical condition that places them at particular risk of serious illness or death from COVID-19, including but not limited to (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure and coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy;
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(f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; (l) a current or recent (within the last two weeks) pregnancy; and/or (m) any other condition identified either now or in the future as being a particular risk for severe illness and/or death caused by COVID-19.”
MEMORANDUM OF LAW Plaintiffs’ suit for injunctive relief under the Fourteenth Amendment, and the Medically Vulnerable Subclass’s petition for habeas corpus, arise from Defendants’ failure to protect them from the severe risk of death or serious physical harm. Those risks affect each Class and Subclass member identically. This Court should, therefore, certify the Metro West Class and the MedicallyVulnerable Subclass. The claims of the class and subclass are ideally suited to proceed as a class action under Federal Rule of Civil Procedure 23(b)(2) and as an analogous class habeas proceeding. See, e.g. Ibrahim v. Acosta, 326 F.R.D. 696, 699 (S.D. Fla. 2018) (certifying class of plaintiffs seeking habeas relief). Rule 23(c)(5) further allows for a class to be divided into subclasses, where the subclasses are treated as a class under Rule 23. Defendants are subjecting Named Plaintiffs and putative Class and Subclass members to the same injury: confinement in conditions that they know present a high risk of infection of a deadly disease in violation of Class members’ rights under the Eighth and Fourteenth Amendments. The Named Plaintiffs and the proposed Class and Subclass meet Rule 23(a)’s prerequisites for class certification: joinder of all proposed class members in this numerous and transient class is impracticable; the questions of law and fact necessary for
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resolution of this claim are common to all members of the proposed class; the Named Plaintiffs’ claims are typical of the class; and the Named Plaintiffs and their counsel are dedicated to vindicating the constitutional rights of the proposed class. Additionally, as Rule 23(b)(2) requires, Defendants’ unconstitutional acts apply to every member of the Class and Subclass, such that the requested final declaratory and injunctive relief is appropriate for the class as a whole.
I. The Requirements of Rule 23(a) Are Satisfied Plaintiffs seeking class certification must meet four factors under Rule 23(a): (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). These class action prerequisites, known respectively as numerosity, commonality, typicality, and adequacy, are each met in this case.
a. Numerosity The numerosity requirement of Rule 23(a) is satisfied where the number of potential plaintiffs is “so numerous that joinder of all members” of the class would be “impracticable.” Fed. R. Civ. P. 23(a)(1). “Practicability of joinder depends on many factors, including, for example, the size of the class, ease of identifying its numbers and determining their addresses, facility of making service on them if joined and their geographic dispersion.” Kilgo v. Boman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986). Assessing impracticability requires a “common-sense approach which takes into account the objectives of judicial economy and access to the legal system.” Bradley v. Harrelson, 151 F.R.D. 422, 426 (M.D. Ala. 1993). There is no fixed size requirement to demonstrate numerosity, but “generally less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors.” Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986) (citations
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omitted); Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999) (citing 1 Newberg on Class Actions § 3.05, at 3–25 (3d ed. 1992) for the proposition that a class of more than forty members “should raise a presumption that joinder is impracticable”). “A plaintiff need not show the precise number of members in the class,” Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983), and “[e]stimates as to the size of the proposed class are sufficient for a class action to proceed,” Hively v. Northlake Foods, Inc., 191 F.R.D. 661, 666 (M.D. Fla. 2000). The Court may also “make common sense assumptions in order to find support for numerosity.” Evans, 696 F.2d at 930. Finally, “where the numerosity question is a close one, a balance should be struck in favor of a finding of numerosity, since the court has the option to decertify pursuant to Rule 23(c)(1).” Id.
Joinder of the proposed members of the Metro West Class is impracticable. The MiamiDade Corrections and Rehabilitation Department’s Daily Jail Population Statistics show that on April 3, 2020, 1,820 people were detained in the jail, all of whom are members of the proposed Class. This number will likely increase as additional people are arrested in the future and detained in the jail. Because the proposed Class contains well over forty members, it satisfies the numerosity requirement.
Moreover, because the proposed Class includes future members, traditional joinder is not practicable. Future Class Members will suffer the same injury absent injunctive relief from Defendants’ deliberate indifference to the unsafe conditions in the jail. Class relief targeting these unconstitutional conditions is therefore appropriate because, regardless of the size of the Class, traditional joinder is not practicable. See Phillips v. Joint Legislative Comm. on Performance &
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Expenditure Review of State of Miss., 637 F.2d 1014, 1022 (5th Cir. 1981)1 ([T]he alleged class includes future and deterred applicants, necessarily unidentifiable. In such a case the requirement of Rule 23(a)(1) is clearly met, for ‘joinder of unknown individuals is certainly impracticable.’” (citation omitted); Moore’s Federal Practice—Civil § 23.22(f) (“Class-action plaintiffs seeking injunctive or declaratory relief frequently seek to define a class to include people who might be injured in the future. Courts in these cases often find that joinder of separate suits would be impracticable because those who have not yet been injured, or who do not know that they have been injured, are unlikely to join a lawsuit.”); Newberg on Class Actions § 25:4 (4th ed.) (“Even a small class of fewer than 10 actual members may be upheld if an indeterminate number of individuals are likely to become class members in the future or if the identity or location of many class members is unknown for good cause.”); see also Kilgo, 789 F.2d at 878 (finding impracticability of non-class joinder for a class including future members, who necessarily could not yet be identified). In such cases, the numerosity requirement is satisfied because the putative class seeks declaratory and injunctive relief against an ongoing policy, a resolution will affect numerous people in the future, and the composition of the class is fluid and unknown. Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir. 1975) (granting liberal construction of numerosity prong in a case seeking injunctive relief on behalf of future class members because “[t]he general rule encouraging liberal construction of civil rights class actions applies with equal force to the numerosity requirement of Rule 23(a)(1).”); see also, e.g., Walker v. City of Calhoun, No. 4:15cv-170-HLM, 2016 WL 361580, at *6 (N.D. Ga. Jan. 28, 2016) (“[T]here is a future stream of class members who would suffer the same injury absent injunctive relief. Under those
1 The Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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Case 1:20-cv-21457-KMW Document 5 Entered on FLSD Docket 04/05/2020 Page 7 of 18
circumstances, the Court agrees with Plaintiff that joinder is impracticable.”). The proposed subclass also easily meets the numerosity threshold. The Medically-
Vulnerable Subclass is comprised of people who are medically vulnerable to COVID-19 because of underlying medical conditions—including people who live with diabetes and asthma, among other conditions. People of any age who suffer from certain underlying medical conditions, including lung disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis patients), diabetes, epilepsy, hypertension, compromised immune systems (such as from cancer, HIV, or autoimmune disease), blood disorder (including sickle cell disease), inherited metabolic disorders, stroke, developmental delay, and asthma, are at elevated risk as well. The WHO-China Joint Mission Report indicates that the mortality rate from COVID-19 for those with cardiovascular disease was 13.2%, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.2
According to one study, “asthma prevalence is 30%–60% higher among individuals with a history of incarceration as compared with the general population.”3 One study estimates that up to 15% of people who are in custody have asthma, 10% of people in custody live with a heart condition that requires medical care, 10% live with diabetes, and 30% have hypertension.4 Based on these estimates and assuming some overlap in these diagnoses, a fair estimate of the number of people who live with one or more of these medical vulnerabilities exceeds one thousand.
2 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12, available at https://www.who.int/docs/defaultsource/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf (last visited Apr. 1, 2020). 3 Elizabth M. Vigilanto et al., Mass Incarceration and Pulmonary Health: Guidance for Clinicians, 15 Ann. Am. Thoracic Soc. 409, 409 (2019). 4 Laura M. Marushack et al., Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-12, U.S. Dept. of Justice (2014).
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The number of potential and future class members, the difficulty in immediately identifying these potential class members, and the addition of future, unknown class members make joinder impracticable. Additionally, judicial economy will be significantly better served by resolving the central factual and legal issues concerning the unconstitutional conditions of confinement, as opposed to requiring multiple proceedings as Defendants continue to detain individuals in unsafe conditions. Rule 23(a)(1) is thus satisfied.
b. Commonality This case also satisfies Rule 23(a)(2)’s requirement that “there are questions of law or fact common to the class.” To meet the commonality requirement, there must “be at least one issue whose resolution will affect all or a significant number of the putative class members.” Williams v. Mohawk Industries, Inc., 568 F.3d 1350, 1355 (11th Cir. 2009) (quoting Stewart v. Winter, 669 F.2d 328, 335 (5th Cir. 1982) (quotations removed)). The threshold for satisfying the commonality requirement is “not high.” Cheney v. Cyberguard Corp., 213 F.R.D. 484, 490 (S.D. Fla. 2003). “[F]or purposes of Rule 23(a)(2) even a single common question will do.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 359 (2011). Traditionally, the Rule asks whether the disputed questions are capable of class-wide proof or resolution. Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 2001). Claims need not be identical to satisfy this requirement, and variations within the class are permissible. Prado-Steiman v. Bush, 221 F.3d 1266, 1279 n.14 (11th Cir. 2000). By their nature, civil rights cases often easily demonstrate commonality because the defendants’ actions are “central to the claims of all class members irrespective of their individual circumstances and the disparate effects of the conduct.” Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994) (citing 7A Charles A Wright, et al., Fed. Prac. & Proc. § 1763 at 219 (1986)).
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Although there need only be common issues of law or fact under Rule 23(a), this case presents numerous issues of both law and fact that are common to the Class and Subclass. Among the most important common questions of fact are:
• what measures Defendants implemented in Metro West in response to the COVID19 crisis;
• whether the conditions in Metro West comply with the Centers for Disease Control and Prevention’s guidelines for preventing the spread of COVID-19;
• whether Defendants’ practices during the COVID-19 pandemic exposed people jailed at Metro West to a substantial risk of serious harm;
• whether Defendants knew of and disregarded a substantial risk of serious harm to the safety and health of the class; and
• whether COVID-19 presents a risk of harm so severe to some people that the only constitutionally permissible way to protect them is to release them from custody immediately.
Among the most important common questions of law are: • whether Defendants are liable under the Eighth and Fourteenth Amendments for their deliberate indifference to conditions of confinement that are very likely to cause serious illness and needless suffering.
This case exemplifies the Supreme Court’s explanation of commonality in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). The Court clarified that it is not just the existence of hypothetical common questions that justify class treatment. Id. at 349–50. Rather, there must be common answers that resolve the factual or legal claims presented by the plaintiffs. Id. at 350. In this case, the answers to the fundamental common questions of fact and law listed above are
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dispositive in determining Defendants’ liability to all Class and Subclass members. If the conditions in Metro West expose people jailed therein to a substantial risk of serious harm, then this litigation turns on whether Defendants knew of and disregarded such a risk.
Although there may be factual variations in some details of Class and Subclass Members’ cases, such as whether they are pretrial or sentenced, these differences are immaterial to the merits and “will not defeat the commonality requirement, so long as a single aspect or feature of the claim is common to all proposed class members.” Bynum v. District of Columbia, 214 F.R.D. 27, 33 (D.D.C. 2003); see also Dukes, 564 U.S. at 350 (commonality satisfied if one can resolve an issue central to Plaintiffs’ claims “in one stroke.”). The claims raised by the Class Members are independent of issues like specific arrest charges; instead, the claims are based solely on the conditions to which each and every person detained in the jail are subjected.
c. Typicality Because the Named Plaintiffs’ claims are identical to the claims of the Class and Subclass Members, Rule 23(a)(3)’s “typicality” requirement is met. Under Rule 23(a)(3), “a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” East Texas Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (quoting Schlesinger v. Reservists Committee to Stop the War, 431 U.S. 395, 403 (1974)). “Typicality, however, does not require identical claims or defenses.” Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984). Rather, “typicality measures whether a sufficient nexus exists between the claims of the named representatives and those of the class at large.” Prado-Steiman, 221 F.3d at 1279. “A sufficient nexus is established if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory.” Kornberg, 741 F.2d at 1337; see also Moore’s Federal Practice - Civil
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§ 23.24 (“Because the claims need only share the same essential characteristics and need not be identical, courts have concluded that the typicality requirement is not highly demanding.”).
Here, the Named Plaintiffs’ legal claims are the same as the legal claims of the other members of the proposed Class and Subclass. The Named Plaintiffs and Class Members are all injured in the same way: Defendants are keeping them in conditions of confinement that put them at substantial risk of serious harm. For the Subclass, each person claims that she must be released because her health is at imminent and immediate risk from the same virus and same policy failures as each other person in the Subclass. Thus, the ongoing and future injury of the Class and the Class representatives arise from the same policy and practice. See Newberg on Class Actions § 23:4 (4th ed.) (“[T]he typicality requirement is generally satisfied when the representative plaintiff is subject to the same statute, regulation, or policy as class members.”). The claims of the Named Plaintiffs also rely on the same legal theories as the claims of all other Class members concerning whether Defendants’ deliberate indifference to the risk of serious harm is unconstitutional. See Auslander, 244 F.3d at 811 (“The typicality requirement may be satisfied despite substantial factual differences . . . when there is a ‘strong similarity of legal theories.’” (citation omitted). The proof concerning whether Defendants have acted with deliberate indifference in the face of the COVID19 pandemic and the legal argument about whether this inaction is unlawful are critical for each Class member in this case to establish the liability of Defendants.
Thus, if the Named Plaintiffs succeed in proving that Defendants’ deliberate indifference to the risk of severe harm as alleged in the Complaint is unlawful, then that ruling will necessarily benefit every other member of the Class. That is the essence of Rule 23(a)’s typicality requirement.
d. Adequacy The Class representatives will “fairly and adequately protect the interests of the class.” Fed.
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R. Civ. P. 23(a)(4). Adequacy means “that the class representative has common interests with unnamed class members and will vigorously prosecute the interests of the class through qualified counsel.” Piazza v. Ebsco Indus., Inc., 273 F.3d 1341, 1346 (11th Cir. 2001). The adequacy analysis “encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action.” Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003) (citation omitted).
Regarding the first inquiry, the Named Plaintiffs are adequate representatives of the Class because their interests in the vindication of the legal claims that they raise are completely aligned with, and are not antagonistic to, the interests of the other Class Members. The Named Plaintiffs, like other Class Members, have a strong interest in no longer being detained in unsafe conditions. The Named Plaintiffs who represent the Medically-Vulnerable Subclass share the Subclass’s interest in release because of the particular danger that the virus presents for them. There are no known conflicts of interest among Members of the proposed Class and Subclass, all of whom have a similar interest in vindicating their constitutional rights in the face of their unlawful treatment by Defendants. Moreover, the declaratory and injunctive relief sought by Named Plaintiffs will benefit the entire class equally.
Regarding the second inquiry, the Named Plaintiffs also meet the requirement that they will adequately prosecute the action. They are represented in this case by highly qualified and experienced civil rights attorneys who are able and willing to conduct this litigation on behalf of the class. Plaintiffs’ counsel from Community Justice Project, GST, Advancement Project, and Civil Rights Corps collectively have extensive experience litigating complex class action cases and civil rights cases. As discussed in greater detail below, infra Part III, Plaintiffs’ counsel are
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qualified and experienced counsel with a history of zealous advocacy on behalf of their clients, and Rule 23(a)(4)’s adequacy requirement is thus met.
II. The Requirements of Rule 23(b)(2) Are Met. In addition to satisfying the requirements of Rule 23(a), the proposed class satisfies Rule 23(b)(2). A putative class action must meet the requirements of either Rule 23(b)(1), Rule 23(b)(2), or Rule 23(b)(3). See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997). Rule 23(b)(2) provides for class certification when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “‘Generally applicable’ means the party opposing the class has acted in a consistent manner towards members of the class so that his actions may be viewed as part of a pattern of activity directed to all members.” Sanchez-Knutson v. Ford Motor Co., 310 F.R.D. 529, 541 (S.D. Fla. 2015) (quotations and alterations omitted). As the Supreme Court has recognized, “[c]ivil rights cases against parties charged with unlawful, class-based discrimination are prime examples” of cases in which class certification is proper under Rule 23(b)(2). Amchem, 521 U.S. at 614; see also Holmes v. Cont’l Can Co., 706 F.2d 1144, 1152 (11th Cir. 1983) (“Civil rights class actions . . . are generally treated under subsection (b)(2) of Rule 23.”); Newberg on Class Actions, supra, § 1:3 (“Rule 23(b)(2) . . . . is typically employed in civil rights cases and other actions not primarily seeking money damages. The (b)(2) class action is often referred to as a ‘civil rights’ or ‘injunctive’ class suit.”). This is because “[t]he key to the (b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’” Dukes, 564 U.S. at 360 (citation
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omitted). Thus, “Rule 23(b)(2) has been liberally applied in the area of civil rights, including suits challenging conditions and practices at various detention facilities.” Braggs v. Dunn, 317 F.R.D. 634, 667 (M.D. Ala. 2016) (citation omitted).
This case falls squarely within this requirement of the appropriateness of declaratory or injunctive relief to the class as a whole, because Defendants have acted with deliberate indifference to the health and safety of all members of the Class by failing to take the necessary action to avoid an outbreak of COVID-19 in the jail. The only way to remedy the injury to the Class is to enjoin Defendants’ conduct as to all of the class members.
The Class and Subclass therefore seek declaratory and injunctive relief to require Defendants to take the necessary steps to prevent an outbreak of COVID-19 in the jail. The relief sought—a declaration that Defendants violate Class Members’ constitutional rights by failing to adequately safeguard their health and safety in the midst of a potential outbreak of a deadly infectious disease and an injunction requiring them to release the Subclass and take the steps necessary to prevent such an outbreak—would apply equally to the entire Class and Subclass. See Holmes, 706 F.2d at 1155 (Rule 23(b)(2) applies to “claims resting on the same grounds and applying more or less equally to all members of the class.”). Therefore, certification under Rule 23(b)(2) is appropriate.
III. Undersigned Counsel Should Be Appointed Class Counsel Under Rule 23(g). Federal Rule of Civil Procedure 23(g) requires that the court appoint class counsel for any class that is certified. Fed. R. Civ. P. 23(g)(1). Class counsel must “fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B). In determining whether this requirement is met, courts must consider: (1) “the work counsel has done in identifying or investigating potential claims in the actions;” (2) “counsel’s experience in handling class actions, other complex litigation,
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and the types of claims asserted in the action;” (3) “counsel’s knowledge of the applicable law;” and (4) “the resources that counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A).
Undersigned Counsel satisfy these four requirements. The Plaintiffs and proposed Class are represented by attorneys from GST LLP, Community Justice Project, Dream Defenders, Advancement Project, and Civil Rights Corps, who have experience litigating complex civil rights matters and class action lawsuits in federal court and extensive knowledge of both the conditions in the jail and the relevant constitutional law. See Declaration of Quinn Smith (Ex. 1), Declaration of Maya Ragsdale (Ex. 2), Declaration of Katherine Hubbard (Ex. 3), Declaration of Thomas Harvey (Ex. 4), Declaration of Tiffany Yang (Ex. 5), Declaration of Meena Jagannath (Ex. 6). Class Counsel have conducted an extensive investigation into the conditions in Metro West and the sanitation and social distancing requirements that are necessary to prevent an outbreak of COVID-19. In addition, Class counsel has sufficient financial and human resources to litigate this matter. In sum, Plaintiffs’ attorneys are experienced advocates; possess “sufficient vigor” along with sufficient resources, to adequately represent the Class and prosecute this action; and are appropriate counsel for the matter. See Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 726 (11th Cir. 1987) (citations omitted).
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CONCLUSION For the reasons stated above, the Named Plaintiffs respectfully asks this Court to certify the Metro West Class and Medically-Vulnerable Subclass described in this Motion.

Dated: April 5, 2020.

Respectfully submitted,
/s/ Quinn Smith R. Quinn Smith, Fla. Bar No. 59523  e-mail: quinn.smith@gstllp.com  Katherine Alena Sanoja, Fla. Bar No. 99137  e-mail: katherine.sanoja@gstllp.com  GST LLP  1111 Brickell Avenue, Suite 2715  Miami, Florida 33131  Telephone: (305) 856-7723 
/s/ Meena Jagannath Meena Jagannath, Fla. Bar No. 102684 meena@communityjusticeproject.com COMMUNITY JUSTICE PROJECT 3000 Biscayne Blvd. Ste 106 Miami, Florida 33137 Telephone: (305) 907-7697
/s/ Maya Ragsdale Maya Ragsdale, Fla. Bar No.: 1015395 maya@dreamdefenders.org DREAM DEFENDERS 6161 NW 9th Ave. Miami, Florida 33127 Tel: 786-309-2217
/s/ Alexandria Twinem Alexandria Twinem, D.C. Bar No. 1644851 Pro Hac Vice Admission Pending alexandria@civilrightscorps.org Katherine Hubbard, DC Bar No. 1500503 Pro Hac Vice Admission Pending katherine@civilrightscorps.org CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 2009 Telephone: (202) 894-6126

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Case 1:20-cv-21457-KMW Document 5 Entered on FLSD Docket 04/05/2020 Page 17 of 18 /s/ Tiffany Yang Tiffany Yang, DC Bar. No. 230836 tyang@advancementproject.org Pro Hac Vice Admission Pending Thomas B. Harvey, MO Bar. No. 61734 Pro Hac Vice Admission Pending tharvey@advacementproject.org ADVANCEMENT PROJECT 1220 L Street NW, Ste 850 Washington, DC 20005 Telephone: (202) 728-9557 Attorneys for Plaintiffs
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Case 1:20-cv-21457-KMW Document 5 Entered on FLSD Docket 04/05/2020 Page 18 of 18 CERTIFICATE OF SERVICE
I hereby certify that on April 5, 2020 I electronically filed the foregoing with the clerk of the court for the U.S. District Court, Southern District of Florida, using the electronic case filing system of the Court. This Motion for Class Certification will be served in accordance with the Federal Rules of Civil Procedure.
/s/ Katherine A. Sanoja Katherine A. Sanoja, Fla. Bar. 99137
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EXHIBIT 1

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DECLARATION OF RODNEY QUINN SMITH II 1) My name is Rodney Quinn Smith II and, on behalf of GST LLP, I am one of the counsel for the named Plaintiffs and the putative Class members in this case. I submit this Declaration in support of the motion for class action treatment. 2) I am the Managing Partner of GST LLP (“GST”), a boutique focused on international dispute resolution. Clients retain GST in high-stakes disputes around the world, the vast majority of which involve amounts in dispute of more than $100 million. In my professional career, I have been involved in a number of class actions, including City Pension Fund for Firefighters and Police Officers in the City of Miami Beach v. Aracruz Celulose, et al., Case No. 08-23317-CIV-LENARD (S.D. Fla. Nov. 26, 2008) (settled in July 2013). 3) As a part of our firm’s pro bono practice, we have worked with Community Justice Project, one of the firms serving as co-counsel in this case. 4) GST LLP has committed to supporting this case on a pro bono basis. To the extent any fees are earned from this litigation on behalf of GST LLP, they will be donated to support the efforts of the organizations leading this litigation. I declare under penalty of perjury that the forgoing is true and correct to the best of my knowledge.

____/s/Quinn Smith__________________ Rodney Quinn Smith II

April 4, 2020 Date

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EXHIBIT 2

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DECLARATION OF MAYA RAGSDALE
1. My name is Maya Ragsdale and I am one of the counsel for the named Plaintiffs and the putative Class members in this case. I submit this Declaration in support of the motion for class action treatment.
2. I am an attorney who works for Dream Defenders, supported by a fellowship from a nonprofit organization with 501(c)(3) status called Justice Catalyst. Justice Catalyst advances innovative legal work in the public interest to protect marginalized groups. The organization awards fellowships to attorneys across the nation to engage in path-breaking approaches to social justice lawyering and affirmative litigation that have real-world impact and improve the lives of low-wage workers, the poor, and the marginalized. My legal advocacy at Dream Defenders is also supported by a fellowship from Law for Black Lives, which is a national network of lawyers building a legal infrastructure for movement organizations and cultivating a community of legal advocates trained in movement lawyering.
3. At Dream Defenders, I provide legal, organizing, and communications support to advocates for criminal justice reform within the organization and partnering organizations. Dream Defenders is fiscally sponsored by Tides Advocacy, Inc., a nonprofit with 501(c)(3) status. Dream Defenders was developed to build power in communities across Florida to protect the civil rights of marginalized people in our society, particularly those who are impacted by the criminal justice system. Dream Defender’s work includes movement building and public

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education on issues such as voting rights, juvenile justice, the school-to-prison pipeline, and restoration of civil rights for returning citizens.
4. Prior to my work with Dream Defenders, I was an assistant public defender in Miami, Florida, where I worked for the Miami-Dade Public Defender’s Office. Before working at the Miami-Dade Public Defender’s Office, I was a legal aid attorney and assistant public defender at Texas RioGrande Legal Aid in Edinburg, Texas and Raymondville, Texas, on the Texas-Mexico border. I represented people in their criminal cases, worked with immigration attorneys to protect people from the immigration consequences of criminal cases, assisted with expunction cases for people with criminal records, and represented people in civil matters including eviction proceedings, removal proceedings, and consumer protection matters. I graduated from Harvard Law School in May 2018, where I participated in numerous clinics to advance the public interest, including spending two years working as a student-attorney in the Harvard Immigration & Refugee Clinic, where I represented people applying for immigration relief and defending against removal proceedings.
5. Prior to law school, I was a legal assistant at the Law Offices of John Burton, a civil rights law firm in Pasadena, California. The Law Offices of John Burton specializes in representing people who have been injured by law enforcement and correctional officers, including serious injuries attributed to Electrical Control Devices in civil rights claims brought under 42 U.S.C. §1983.

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I declare under penalty of perjury that the forgoing is true and correct to the best of my knowledge. /s/ Maya Ragsdale Maya Ragsdale (Florida Bar No.: 1015395) DREAM DEFENDERS 6161 NW 9th Ave Miami, Florida 33127 Tel: 786-309-2217 maya@decarceratemiami.com Date: April 4, 2020

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EXHIBIT 3

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DECLARATION OF KATHERINE HUBBARD 1) My name is Katherine Hubbard and, on behalf of Civil Rights Corps, I am one of the counsel for the named Plaintiff and the putative Class members in this case. I submit this Declaration in support of the motion for class certification. 2) I received a Juris Doctor degree from Stanford University. After graduating law school, I worked as a Law Fellow at Equal Justice Initiative where I litigated criminal appeals. I then worked as a Litigation Fellow at Equal Justice Under Law, where I litigated federal civil rights class action lawsuits. 3) I have been an attorney at Civil Rights Corps, a non-profit civil rights organization based in Washington, D.C., since the founding of the organization in 2016. I have worked on numerous civil rights cases, including class actions and habeas petitions. 4) I currently serve as counsel on several constitutional civil rights class action lawsuits including Allison v. Allen (M.D.N.C. Case No. 19-cv-1126), Daves v. Dallas, (N.D. Tex. Case No. 3:18-cv-154), and have been appointed class counsel in other constitutional civil rights class action lawsuits, including Schultz v. State, 330 F. Supp. 3d 1344 (N.D. Ala. 2018) and Edwards v. Cofield, 265 F. Supp. 3d 1344 (M.D. Ala. 2017). I have also represented numerous individuals in state and federal habeas petitions challenging unconstitutional pretrial detention including Reem v. Hennessy, No. 17-CV-06628-CRB, 2017 WL 6765247 (N.D. Cal. Nov. 29, 2017), Rodriguez-Ziese v. Hennessy, No. 17-CV-06473-BLF, 2017 WL 6039705 (N.D. Cal. Dec. 6, 2017), Coleman v. Hennessy, No. 17-CV-06503-EMC, 2018 WL 541091 (N.D. Cal. Jan. 5, 2018), and Arevalo v. Hennessy, 882 F.3d 763, 767 (9th Cir. 2018).
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5) My colleague Alexandria Twinem graduated with a Juris Doctorate from Stanford Law School. She clerked for the late Honorable Stephen Reinhardt of the Ninth Circuit Court of Appeals and the Honorable Alison J. Nathan of the District Court for the Southern District of New York. Prior to working at Civil Rights Corps, she was the Fellow for Appellate and Constitutional Litigation at the law firm Gupta Wessler PLLC. She currently serves as counsel on two constitutional civil rights lawsuits that are putative class actions: McNeil v. Community Probation Services, No. 18-cv-33 (M.D. Tenn. Mar. 25, 2020), and Parga v. Board of County Commissioners of the County of Tulsa, No. 18-cv-298 (N.D. Okla. Apr. 3, 2020).
6) Civil Rights Corps has devoted significant time and resources to becoming familiar with the conditions in Miami’s Metro West jail, the health and safety risks that the coronavirus poses to people in jails, and the substantive and procedural law of challenging unconstitutional jail conditions.
7) Civil Rights Corps has sufficient funds available to litigate this case and is prepared to contribute significant resources to litigating this case.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

/s/ Katherine Hubbard Katherine Hubbard

Date: April 4, 2020

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EXHIBIT 4

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DECLARATION OF THOMAS B. HARVEY 1) My name is Thomas B. Harvey and, on behalf of Advancement Project, National Offices, I am one of the counsel for the named Plaintiffs and the putative Class members in this case. I submit this Declaration in support of the motion for class action treatment. 2) I am the Program Director for the Justice Project at Advancement Project, a nonprofit multi racial civil rights organization based in Washington, D.C. Advancement Project (“AP”) is a non-profit, next generation, multi-racial civil rights organization. Rooted in the great human rights struggles for equality and justice, AP exists to fulfill America’s promise of a caring, inclusive and just democracy. AP provides legal, organizing, and communications support to grassroots organizations across the country in its Power and Democracy Project, Justice Project, Opportunity to Learn Project, and the Immigrant Justice Project. Since 1999, AP has regularly filed federal litigation, including class action litigation, written reports in educating the public on issues such as voting rights, school discipline, restoration of civil rights for returning citizens, and criminalization of undocumented persons. AP staff have testified before state and federal legislative bodies on civil rights and racial justice. 3) While at Advancement Project, I have conducted an investigation into the use of secured money bail to detain impoverished people in St. Louis. This investigation has included interviews with witnesses, experts, government employees, people jailed for their poverty and their families, local attorneys, community members, experts in the functioning of courts and jails, and national experts in post-arrest procedures and constitutional law. 4) Prior to joining Advancement Project, I was the Co-Founder of ArchCity Defenders. ArchCity Defenders (ACD) is a 501(c)3 non-profit civil rights organization providing holistic legal advocacy and combating the criminalization of poverty and state violence against
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poor people and people of color. ACD uses direct services, impact litigation, and policy and media advocacy as its primary tools to promote justice, protect civil and human rights, and bring about systemic change on behalf of the poor and communities of color directly impacted by the abuses of the legal system.
5) While at ArchCity Defenders, I was the lead author of a paper investigating the St. Louis municipal legal system and documenting widespread practices involving the denial of the right to counsel, unconstitutional use of cash bail, debtors’ prisons, and police misconduct. I have also published academic articles detailing the specific processes in question in the City of St. Louis’s 22nd Judicial Circuit. I have therefore devoted significant time and resources to becoming familiar with the scheme in St. Louis and with all of the relevant state and federal laws and procedures that can and should govern it.
6) I have been counsel in a number of recent constitutional civil rights class action lawsuits raising similar and related issues issues. A small sampling of these cases includes: Pierce et al. v. City of Velda City, 2015 WL 10013006 (E.D. Mo. 2015); See, e.g., Templeton v. Dotson, 4:14-cv-01019 (E.D. Mo 2014, settlement approved in 2014); Jenkins et al. v. City of Jennings, 15-cv-252-CEJ (E.D. Mo. 2015, settlement approved in 2016); Fant et al. v. City of Ferguson, 15-cv-253-AGF (E.D. Mo. 2015); Thomas et al. v. St. Ann et al., 4:16-cv-1302 (E.D. Mo. 2016); Powell v. City of St. Ann 4:15-cv-840 (E.D. Mo. 2015, settlement approved in 2018 ); Pierce v. City of Velda City, 4:15-CV-570 (E.D. Mo. 2015, settlement approved in 2015); White v. City of Pine Lawn, 14SL-CC04194 (St. Louis Co. Cir. Ct., Dec. 2014); Pruitt v. City of Wellston, 14SL-CC04192 (St. Louis Co. Cir. Ct., Dec. 2014); Lampkin v. City of Jennings, 14SL-CC04207 (St. Louis Co. Cir. Ct., Dec. 2014); Wann v. City of St. Louis, 1422CC10272 (St. Louis City Cir. Ct., Dec. 2014, settlement approved in 2015);Reed v. City of Ferguson, 14SL-CC04195 (St. Louis Co. Cir. Ct., Dec. 2014); Eldridge v. City of St. John,
2

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15SL-00456 (St. Louis Co. Cir. Ct., Feb. 2015, settlement approved in 2018); Watkins v. City of Florissant, 16SL-CC00165 (St. Louis Co. Cir. Ct., Jan. 2016, Settled in 2017); among others.
7) Those cases have resulted in consent decrees and other settlements in the St. Louis region to change their post-arrest procedures to remove secured money bail for new arrestees, end debtors’ prisons practices, and cease the practice of collecting illegal fines and fees. I was also member of the Ferguson Commission’s working group that proposed changes to broader practices in the courts that were adopted throughout the region. I have also been counsel in lawsuits successfully challenging the treatment of indigent people with respect to money bond in the municipal courts and jails of Jennings and Ferguson, Missouri, see also Jenkins et al. v. City of Jennings, 15-cv-252-CEJ (E.D. Mo. 2015) (settled by consent decree); and Fant et al. v. City of Ferguson, 15-cv-253-AGF (E.D. Mo. 2015) (ongoing).
8) Advancement Project is prepared to contribute significant resources to litigating this case.
I declare under penalty of perjury that the forgoing is true and correct to the best of my knowledge.

/s/ Thomas B. Harvey______________ Thomas B. Harvey

04-04-2020 Date

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EXHIBIT 5

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DECLARATION OF TIFFANY YANG 1) My name is Tiffany Yang and, on behalf of Advancement Project, National Offices, I am one of the counsel for the named Plaintiffs and the putative Class members in this case. I submit this Declaration in support of the motion for class action treatment. 2) I am a Staff Attorney at the Justice Project and Immigrant Justice Project at Advancement Project, a non-profit multi racial civil rights organization based in Washington, D.C. Advancement Project (“AP”) is a non-profit, next generation, multi-racial civil rights organization. Rooted in the great human rights struggles for equality and justice, AP exists to fulfill America’s promise of a caring, inclusive and just democracy. AP provides legal, organizing, and communications support to grassroots organizations across the country. Since 1999, AP has regularly filed federal litigation, including class action litigation, written reports in educating the public on issues such as voting rights, school discipline, restoration of civil rights for returning citizens, and criminalization of undocumented persons. AP staff have testified before state and federal legislative bodies on civil rights and racial justice. 3) Prior to joining Advancement Project, I was a Skadden Legal Fellow at the Washington Lawyers’ Committee for Civil Rights, a non-profit civil rights organization working to create legal, economic and social equity through impact and appellate litigation, client and public education, and public policy advocacy. 4) While at the Washington Lawyers’ Committee, I was appointed class counsel in a constitutional civil rights class action lawsuit challenging the conditions of confinement for immigrant children. Doe 1, et al. v. Shenandoah Valley Juvenile Center, Case No. 5:17-cv-0097 (W.D. Va. 2017). I have also been counsel in other constitutional civil rights lawsuits and
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appeals representing individual clients. Parker v. Reema Consulting Services, Inc., 915 F.3d 297 (4th Cir. 2019); CASA de Maryland, Inc., et al. v. Trump, et al., Case No. 8:18-cv-00845-GJH (D. Md. 2017) (ongoing); Equal Rights Center v. Mid-America Apartment Communities, Inc., Case No. 1:17-cv-02659 (D.D.C. 2017) (settled with positive resolution in Oct. 2018); Alexander v. Edgewood Management Corporation, et al., Case No. 1:15-cv-01140-RCL (D.D.C. 2017).
5) Prior to joining the Washington Lawyers’ Committee, I was a judicial law clerk for the Honorable Andre M. Davis on the U.S. Court of Appeals for the Fourth Circuit, and I was also a judicial law clerk for the Honorable Josephine L. Staton on the U.S. District Court for the Central District of California. During these two judicial clerkships, I was exposed daily to federal litigation, including several constitutional civil rights class actions.
6) Advancement Project is prepared to contribute significant resources to litigating this case.
I declare under penalty of perjury that the forgoing is true and correct to the best of my knowledge.

/s/Tiffany Yang_________________ Tiffany Yang

April 4, 2020 Date

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EXHIBIT 6

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DECLARATION OF MEENA JAGANNATH 1. My name is Meena Jagannath and, on behalf of Community Justice Project, Inc., I am one
of the counsel for the named Plaintiffs and the putative Class members in this case. I submit this Declaration in support of the motion for class action treatment.
2. I am a Co-Director and Co-Founder of the Community Justice Project, Inc. (“CJP”), a nonprofit racial justice and human rights organization based in Miami, Florida. Founded in 2015, CJP provides legal support to community organizations and grassroots groups in South Florida leading efforts on a range of social justice issues, from housing rights and community development to immigrants rights and transformation of the criminal legal system. CJP’s work builds off of more than fifteen years of community lawyering work within Florida Legal Services, Inc. on behalf of public housing tenants, immigrants rights groups, and numerous community organizations. Its legal work ranges from litigation to policy advocacy, human rights advocacy, research and community legal education.
3. I have been involved in litigation in Miami related to workers’ rights, land use and zoning, tenants’ rights and other matters. I have led advocacy efforts regarding racial discrimination in the criminal legal system, police accountability and the disproportionate use of force before international human rights mechanisms under the auspices of the United Nations Office of the High Commissioner for Human Rights and the Inter-American Commission on Human Rights. I have published multiple articles in law journals and other publications on racial justice and human rights, and spoken on a range of equity and social justice issues related to low-income communities of color in South Florida.

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4. Prior to my practice in Florida, I served as a Legal Fellow at the Bureau des Avocats Internationaux in Port-au-Prince, Haiti, a human rights law office committed to advocating alongside and on behalf of poor and marginalized communities in Haiti. I coordinated the Rape Accountability and Prevention Project, which represented individual victims of sexual violence in their civil claims, supported grassroots women’s groups and conducted policy advocacy to reform the Haitian penal system and advance women’s rights legislation on the national and international levels.

5. Community Justice Project has been involved in class action lawsuits C.F.C. et al v. Miami-Dade County, Florida et al (FLSD-1:2018-cv-22956, ongoing) and Miami Workers Center et al v. Carroll et al (FLSD-1:2017-cv-24047, settlement achieved). I have also been counsel on Samuels et al v. Federal Housing Finance Agency et al (FLSD-1:2013-cv-22399, case dismissed), and numerous cases filed in the 11th Judicial Circuit of Florida.

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

/s/ Meena Jagannath______________ 04-04-2020

Meena Jagannath

Date

 
 Case 1:20-cv-21457-KMW Document 3 Entered on FLSD Docket 04/05/2020 Page 1 of 33

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

ANTHONY SWAIN; ALEN BLANCO; BAYARDO CRUZ; RONNIEL FLORES; WINFRED HILL; DEONDRE WILLIS; PETER BERNAL, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
DANIEL JUNIOR, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department; MIAMIDADE COUNTY, FLORIDA,
Defendants.

Case No. 1:20-cv-21457 Emergency Motion

EMERGENCY MOTION AND MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION An outbreak of the novel coronavirus is imminent in Miami-Dade County’s Metro West
Detention Center (“Metro West”), where Defendants are confining over 1,800 human beings in conditions that threaten their lives.
Plaintiffs have limited access to soap, have no safe way to dry their hands, sleep within one to two feet of one another, must wait days to seek medical attention, and are denied basic hygiene supplies such as laundry detergent, cleaning supplies, and tissues. Many human beings confined in Metro West are medically vulnerable to the COVID-19 disease, and they fear for their lives. And as of the filing of this motion, multiple staff members in the jail have tested positive for the virus.
As the reach of COVID-19 grows inside and outside the jail, time is running out to save
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Plaintiffs’ lives and to prevent the jail from becoming an epicenter of community infection. Absent intervention from this Court, the jail will become a site of widespread contagion wholly unable to cope with the deadly outbreak because of Defendants’ flagrant and deliberate indifference to basic medical and scientific consensus. Rather than complying with federal, state, and medical requirements, Defendants are largely ignoring the problem. Plaintiffs are “treat[ed] . . . like [they] are the scum of the earth, like [they] don’t deserve protection.” Ex. 1, Swain Decl. ¶ 3. In this case, they ask to be “acknowledged as people” in the face of a potentially fatal pandemic. Ex. 2, Hill Decl. ¶ 11.
In violation of the Eighth and Fourteenth Amendments, the people jailed at Metro West are forced to suffer conditions that deny them the precautions and protections necessary to mitigate the severe threat of COVID-19. Plaintiffs seek class-wide relief1 requiring Defendants to take basic steps to safeguard the health of people who, due to the nature of their confinement, are at heightened risk of infection and death in a global pandemic. Plaintiffs also seek relief for a subclass of all people who, because of age or preexisting medical conditions, are at particularly grave risk of death from COVID-19 (the “Medically Vulnerable Subclass”), and who therefore request immediate habeas corpus release.
This extraordinary moment requires the Court’s immediate intervention2—outbreaks are
1 Plaintiffs’ Motion for Class Certification is pending. Plaintiffs file this motion on behalf of the putative class members, but for ease of reference, describes them as “class members” throughout this brief. Although this is a prototypical case for which the class action vehicle was created, the Court need not rule on the Plaintiffs’ class certification motion or formally certify a class in order to issue the requested relief. See, e.g., Newberg on Class Actions § 24:83 (4th ed. 2002) (“The absence of formal certification is no barrier to classwide preliminary injunctive relief.”); Moore’s Federal Practice § 23.50, at 23-396, 23-397 (2d ed.1990) (“Prior to the Court’s determination whether plaintiffs can maintain a class action, the Court should treat the action as a class suit.”). 2 Because of the grave risk to health and life at stake, Plaintiffs request that this Court consider this motion on an emergency basis and that the Court grant a temporary restraining order requiring the release of subclass members pending briefing and argument. Plaintiffs’ counsel is contacting
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measured “in a matter of days, not weeks,” with this type of novel virus. Compl. ¶ 38. BACKGROUND
A. COVID-19 presents a lethal threat and requires an emergency response. We are in the midst of an unprecedented public health emergency. Compl. ¶ 18. On January
1, 2020, the first confirmed COVID-19 case was diagnosed in the United States. Id. ¶ 19. The number of people infected by COVID-19 grew exponentially in the months following. Id. By March 13, 2020, the World Health Organization defined the outbreak of COVID-19 as a global pandemic, and leaders over the world—as well as the President of the United States,3 the Governor of Florida, and the Mayor of Miami-Dade County—declared a state of emergency. Id. ¶ 46. As of April 4, 2020, 277,205 people have been diagnosed with COVID-19 in the United States, with 6,593 deaths confirmed. Id. ¶ 19. Without effective public health intervention, the Centers for Disease Control and Prevention (“CDC”) projects that as many as 2.2 million American people will die from the coronavirus. Id.
The sensation of severe illness caused by COVID-19 has been compared to “drowning in your own blood.” Id. ¶ 24. COVID-19 is a highly contagious virus that can severely damage lung tissue, affect cardiac functions (including the possibility of heart failure), and cause widespread damage or permanent harm to other organs. Id. ¶ 20. Complications manifest at an alarming pace, and the required levels of medical support—which include highly specialized equipment like
counsel for the Defendants contemporaneously with this filing to alert them that an emergency filing is forthcoming and providing defense counsel with copies of this motion, Plaintiffs’ complaint, and Plaintiffs’ motion for class certification. Plaintiffs’ counsel is prepared to appear by telephone immediately. Each day that passes risks Plaintiffs’ lives. This case cannot wait. 3 ‘Two Very Big Words’: Trump Announces National Emergency for Coronavirus, N.Y. Times (Mar. 13, 2020), https://www.nytimes.com/video/us/politics/100000007032704/trumpcoronavirus-live.html.
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ventilators as well as an entire team of care providers—will quickly exceed local health care resources. Id. ¶ 25. Approximately 20% of people infected experience life-threatening complications, and between 1% and 3.4% die. Id. ¶ 26. The fatality rate of people infected with COVID-19 is about ten times higher than a severe seasonal influenza, even in countries with highly effective health care systems. Id. ¶ 26.
Although everyone is at risk of contracting the novel coronavirus disease, certain populations are at higher risk for severe illness. Id. ¶ 22. Certain underlying medical conditions increase the risk of serious COVID-19 disease for individuals of any age, including lung disease or other respiratory conditions like asthma, chronic liver or kidney disease, diabetes, epilepsy, hypertension, compromised immune systems, blood disorders, inherited metabolic disorders, strokes, and pregnancy. Id. People over the age of fifty also face greater chances of serious illness or death. Id. There is neither a vaccine nor any medication to prevent or cure infection, and the only known effective measure to mitigate against the risk of severe illness or death is to prevent infection in the first instance. Id. ¶¶ 27, 28.
Accordingly, medical experts, officials, and the CDC urge “social distancing”—isolating oneself from other people at a minimum distance of six feet—as well as frequent hand-washing, a minimum of 60% alcohol-based hand sanitizers, and frequent cleaning and disinfecting of hightouch surfaces and objects. Id. ¶ 28. These measures are particularly important in carceral settings like local jails, which become “ticking time bombs” in the midst of a public health crisis as “[m]any people crowded together, often suffering from diseases that weaken their immune systems, form a potential breeding ground and reservoir for diseases.” Id. ¶ 29. B. A COVID-19 outbreak in Metro West is an extreme threat to public health and
safety. People incarcerated in Metro West are at heightened risk of infection and death from
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COVID-19. According to Dr. Jaimie Meyer, an expert in public health in jails and prisons: “the risk posed by COVID-19 in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected.” Id. ¶ 30; see also Greer Decl. ¶¶ 10-11. This is due to a number of factors, including forced close proximity of individuals in those facilities, their reduced ability to protect themselves through social distancing, lack of necessary medical and hygiene supplies, heavy reliance on outside hospitals for serious medical care, forced labor of incarcerated people in cleaning their own facilities with insufficient supplies, constant cycling of people through the jails, and inadequate medical care within the jail itself. Compl. ¶¶ 30-31; Greer Decl. ¶¶ 10-16.
The CDC’s own guidance for correctional and detention facilities acknowledges that incarcerated people live in conditions “heightening the potential for COVID-19 to spread.” Compl. ¶ 33. The growing devastation in other jails around the country is a harbinger for what awaits Miami-Dade County. In New York City, the COVID-19 infection rate in the city’s jails is eight times higher than the rest of the city, which already sits at one of the highest rates in the world. Id. ¶ 37. The first case of COVID-19 on Rikers Island was confirmed on March 18, 2020. Id. By Thursday, April 2, 2020, 231 people incarcerated at Rikers, 223 jail staff had tested positive; two jail officers have died; and more than 800 incarcerated people were held in isolation or quarantined. Id. Urgent action is required if Metro West is to avoid the fate of Rikers Island.
Concerns for people trapped inside these “ticking time bombs” extend to all people who cycle through these facilities, including correctional and medical staff, who are also at heightened risk of transmission and infection. Id. ¶¶ 1, 37, 52; Greer Decl. ¶ 10. An outbreak of COVID-19 in the jail will further increase the contagion rates for their families and the broader community. See Compl. ¶ 29, 39; Greer Decl. ¶ 11. Moreover, an outbreak in a jail will overwhelm the regional
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health care facility, and resources will be unavailable to treat anyone, whether incarcerated or not, suffering severe illness from COVID-19. Compl. ¶ 39; Greer Decl. ¶¶ 16-18. As Leann Bertsch the Director of the North Dakota Department of Corrections and Rehabilitation concluded, “ignoring the health of those living and working inside the walls of our nation’s correctional facilities poses a grave threat to us all,” and “putting public health first is the best, and only, way to effectively achieve [a department of correction’s] public safety mission during the COVID-19 pandemic.” Id. ¶ 34. C. Metro West is not taking sufficient precautions to prevent an outbreak among those
detained. This novel coronavirus has already reached the Miami-Dade County jails. Following the March 27th report of a Metro West jail employee and two others testing positive for COVID-19, Miami-Dade County Corrections and Rehabilitation (MDCR) released a list of preventive measures it claimed to “[be] taking” during the pandemic, some of which conformed to CDC recommendations. Compl. Ex. 14, MDCR Mar. 27, 2020 News Release. As of the time this Motion was filed, Defendants have failed to implement any of the precautionary measures listed in their press release at Metro West, and they have instead forced Plaintiffs to endure unconstitutional conditions that raise serious threats of harm to their bodies and lives. See infra.
1. Defendants have failed to achieve necessary social distancing. Each cell at Metro West is “a petri dish for disease.” Swain Decl. ¶ 13. Even during this pandemic, people detained at Metro West are “packed into a cell” with over sixty other people. Ex. 3, Blanco Decl. ¶¶ 8, 15. Bunk beds are positioned close together, and Plaintiffs are only one to two feet away from the person lying in the bed next to them and from the person lying in the bed above or below. Ex. 4, Willis Decl. ¶ 7; Ex. 5, Cruz Decl. ¶ 5; Hill Decl. ¶ 5. Even if people slept head to foot instead of head to head, they would remain within six feet of another person. Ex.
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6, Flores Decl. ¶ 6. Given that Plaintiffs are forced into a cell that becomes “so crowded . . . it feels like a health hazard,” Flores Decl. ¶ 6, it is “impossible” to “stay away from people” and practice the CDC recommendations of social distancing, no matter how hard people do try. Blanco Decl. ¶ 8; Willis Decl. ¶ 7. “In order to maintain the proper distance of six feet, there would have to be a maximum of 15 people in our cell at a time.” Ex. 7, Bernal Decl. ¶ 12.
Social distancing is also virtually impossible in the medical clinic. Plaintiffs express fear of going to the clinic for necessary medicine because everyone “is crowded into the same small room as [they] wait,” MDCR staff do not instruct people to be six feet apart, and Plaintiffs “can’t get far enough away from people to stay safe.” Flores Decl. ¶ 3; Blanco Decl. ¶ 6.
And although Defendants suggested that they needed to reduce the jail population to facilitate social distancing, they have not done so. Despite community advocacy and public pressure, State Attorney General Katherine Fernandez Rundle has only identified eighteen individuals for whom she supported release. Compl. ¶ 50. On February 25, 2020, before states of emergency were declared in Florida or Miami-Dade County, there were 2,061 people in custody at Metro West. Ex. 8, Feb. 25, 2020 Daily Jail Population Statistics. On April 3, 2020, over a month later, 1,820 people remained in custody at Metro West. Ex. 9, Apr. 3, 2020 Daily Jail Population Statistics. This means that an average cell that contained 60 people in February still holds 54 people—far too many for them to practice meaningful social distancing.
As the declarations demonstrate, the experiences of those who remain incarcerated at Metro West reveal the dangerous conditions they will endure if they are not allowed to practice social distancing. This crisis has laid bare the existing failures of Metro West in mitigating the spread of infectious diseases, see Swain Decl. ¶¶ 8-9 (describing the spread of other infectious diseases in his cell at Metro West), but the current pandemic has precipitated an unprecedented emergency
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that requires urgent action. 2. Defendants do not provide immediate health care, including testing, for medically vulnerable or COVID-19 symptomatic people jailed in Metro West.
Metro West is “under-equipped and ill-prepared to prevent and manage a COVID19 outbreak.” Greer Decl. ¶ 28. Even before COVID-19 reached Miami-Dade County, medical care was often delayed or unreliable. See Blanco Decl. ¶ 4 (received an inhaler to help manage his severe asthma nearly three months after his request); Swain Decl. ¶ 17 (taken to the hospital a year and a half after he fell and injured his wrist). To request medical attention, people were required to fill out a medical request slip, also known as a “sick card,” and wait approximately three days to see a nurse. Willis Decl. ¶ 6.
Now, even when Plaintiffs experience symptoms of COVID-19 (including difficulties breathing), they are still required to submit a medical request slip and are forced to wait three days to a week before seeing a nurse. See, e.g., Blanco Decl. ¶¶ 5, 7; Flores Decl. ¶ 4; Hill Decl. ¶ 10. Even an elderly man with multiple respiratory issues who expressed a need for a breathing machine has made three requests to see a doctor but has only been granted access to the nurse. Ebert Decl. ¶ 17. Nurses and MDCR staff have denied Plaintiffs’ requests for a test, even when they physically demonstrate and verbally confirm their COVID-19 symptoms. Blanco Decl. ¶ 6; Cruz Decl. ¶ 2. People are told there are no tests available in the jail, Blanco Decl. ¶ 6, and those who exhibit COVID-19 symptoms are denied even the minimal step of having their temperature taken, Willis Decl. ¶¶ 6-7; Cruz Decl. ¶ 2; Flores Decl. ¶ 4; Hill Decl. ¶ 9; Bernal Decl. ¶ 5. Those who are coughing and are refused a test for COVID-19 are instead given a Tylenol pill, and nothing more. Bernal Decl. ¶¶ 7-8; Blanco Decl. ¶ 6. “There are no measures taken to protect” even the people housed in the medical unit, where the “medically vulnerable people” are assigned to live. Swain
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Decl. ¶¶ 4, 12. 3. Defendants maintain dangerous conditions and fail to provide even basic hygiene supplies to the people jailed in Metro West.
Everyone who is jailed at Metro West receives one “hygiene pack” per month, which includes “a small soap that doesn’t sanitize, one pen, one envelope, one stamp, one deodorant that doesn’t work, and one comb.” Cruz Decl. ¶ 8. This single “small,” “thin bar of soap” is insufficient to handle frequent daily hand-washing, see Willis Decl. ¶ 11, and even if more were provided, it remains non-antibacterial, Cruz Decl. ¶ 8. To access hygienic anti-bacterial soap during this public health crisis, people are required to have sufficient funds to purchase it through the commissary. Cruz Decl. ¶ 8.
MDCR largely does not provide Plaintiffs with “anything to protect [themselves]” during this pandemic, such as gloves, face masks, or hand sanitizer. Cruz Decl. ¶ 8; Willis Decl. ¶ 11; Hill Decl. ¶ 7. None of these items are available for purchase in the commissary. Cruz Decl. ¶ 8. MDCR fails to provide even the most basic hygiene products – they do not provide toilet paper, paper towels, or tissues to the people jailed in Metro West. Willis Decl. ¶ 11; Blanco Decl. ¶ 12; Flores Decl. ¶ 8. Laundry detergent is often unavailable, and the laundry machines are often broken, so Plaintiffs are either unable to wash their clothes or are forced to hand-wash their clothing with purchased soap. Blanco Decl. ¶ 13; Cruz Decl. ¶ 11; Flores Decl. ¶ 8.
Nor is the situation safe for the guards, who are forced to bring their own protective gear into the jail to safeguard against the virus. Blanco Decl. ¶ 16. It is rare to see guards wearing gloves, Swain Decl. ¶ 7; Ex. 10, Ebert Decl. ¶¶ 14, MDCR staff do not change gloves or wash their hands between physical interactions with incarcerated people. Cruz Decl. ¶ 13. Even for guards, “[t]here aren’t enough masks to go around.” Swain Decl. ¶ 7.
MDCR does not hire janitorial staff to clean or sanitize the facility; instead, certain
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incarcerated people are assigned as “trustees” to help clean each cell, and incarcerated people are told they “have to clean [their] cells by [themselves].” Cruz Decl. ¶ 7. Trustees are “scared” and are “trying to find the best way to protect [themselves] and the people who [they] live with,” id., but MDCR does not provide sufficient protective gear or sanitation supplies to protect them from the virus. MDCR does not provide trustees with bleach or face masks, and the only cleaning supply that is available is a “really watered down” liquid that “do[es]n’t sanitize” any surfaces. Id.; Flores Decl. ¶ 7; Hill Decl. ¶ 6. One Plaintiff has “seen blood” remain on the floor, even after cleaning attempts, “because the supposed cleaning products [MDCR] gives [them] can’t even clean that up.” Swain Decl. ¶ 15. Even trustees are not provided with enough gloves to keep them safe from the virus, and they are often forced to reuse gloves so that “all [they]’re doing is carrying bacteria around.” Bernal Decl. ¶ 9; see also Ebert Decl. ¶ 9. Trustees who also serve food are told the jail has no more gloves but that they needed to use their bare hands to continue preparing the food trays. Bernal Decl. ¶ 10.
There is a “shift change” once every eight hours, which is when trustees make their best attempt at cleaning the cells with diluted and insufficient supplies. Willis Decl. ¶ 10. But because MDCR has not provided sanitation or hygiene products during this pandemic, people are rendered unable to properly sanitize high-touch items or areas between use. See supra.
In each cell, Plaintiffs are forced to “share everything,” heightening the likelihood of transmission. Blanco Decl. ¶ 10; Flores Decl. ¶ 7. Everyone shares a single “little water cooler” where used bottles often touch the spigots. Blanco Decl. ¶ 10. Everyone must touch the same button to release the water, and people avoid touching this button with their hands wherever possible given that it is “always dirty.” Cruz Decl. ¶ 10; Willis Decl. ¶ 11.
Every person in each cell must also share the bathrooms, where multiple sinks, showers,
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and toilets are often broken. Blanco Decl. ¶ 11; Cruz Decl. ¶ 9. At times, there are only three showers and six toilets for over 65 people in the same cell to share. Willis Decl. ¶ 9. The bathroom floor is “filled with standing water,” bathrooms and sinks are “really dirty,” and the showers are “disgusting.” Willis Decl. ¶ 9; Blanco Decl. ¶ 11.
People in each cell also share approximately six phones, Willis Decl. ¶ 8, which cannot be “sanitized between uses” even though these phones touch people’s faces and mouths. Blanco Decl. ¶ 11. As noted above, Defendants have provided no supplies to clean these frequently used surfaces. In an attempt to protect themselves from the virus, people have wrapped a sock or shirt around the phone when speaking into it. Blanco Decl. ¶ 11; Flores Decl. ¶ 7; Willis Decl. ¶ 10. There are similarly no sanitation supplies to disinfect other high-touch objects that must be shared in the cell, including the television remotes, furniture, cards, and dominoes. Willis Decl. ¶ 8.
4. Defendants fail to implement proper screening protocols and house newly arrested and symptomatic people together with the general population.
New people, including newly incarcerated people and jail staff, are “coming in and out constantly” of Metro West. Cruz Decl. ¶ 6; Blanco Decl. ¶ 9; Willis Decl. ¶ 4. Plaintiffs feel “trapped in [their] cells” with new people arriving daily, Blanco Decl. ¶ 9, Willis Decl. ¶ 4, including many who exhibit COVID-19 symptoms such as dry coughs, Flores Decl. ¶ 5; Blanco Decl. ¶ 7. Plaintiffs who exhibit COVID-19 symptoms (such as trouble breathing, dry coughs, and throat or chest pain) and request medical attention remain in general population for days as they wait to see the nurse. Blanco Decl. ¶ 5; Flores Decl. ¶ 4. Plaintiffs observe that many people in their cells are coughing “all the time” and appear “really sick,” though no efforts are made to treat or move symptomatic people. Cruz Decl. ¶ 2; Blanco Decl. ¶ 7; Swain Decl. ¶¶ 5-6.
Plaintiffs feel unsafe and “vulnerable” to others infecting them with COVID-19 given that “there’s nothing [they] can do to protect against” this infectious disease while inside Metro West.
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Blanco Decl. ¶ 9; Willis Decl. ¶ 4; Flores Decl. ¶ 5. Newly booked individuals do not have their temperatures taken and are not tested for COVID-19 before they enter the jail, even when they exhibit potential symptoms, and when screening does occur it consists solely of asking verbal questions about symptoms. Flores Decl. ¶ 5.
5. Defendants fail to provide proper medical care to people infected with or exposed to COVID-19.
At least one cell in Metro West has been “quarantined” as a result of a suspected case of COVID-19, but rather than quarantining each potentially exposed person (as recommended), all sixty people inside the cell are forced to remain together in close proximity with little protection. Swain Decl. ¶ 10. Approximately 22-25 people in the cell are currently sick and coughing. Id. Officers and nurses do not want to enter the cell, and they argue in the hall or try to encourage the younger officers to enter. Id. It is clear that the officers, too, “are in fear for their lives and don’t want to take the virus home to their families.” Id. The medical unit assigned to medically vulnerable people shares the same bathroom and air vents with the quarantined cell, with no protective measures in place to mitigate against the spread of the virus. Id. ¶¶ 4, 11.
6. Defendants fail to provide sufficient information concerning COVID-19. MDCR chooses to leave Plaintiffs “[i]n the dark” about COVID-19 and its necessary preventive measures. Blanco Decl. ¶ 17. MDCR has provided almost no instruction, information, or announcements concerning the coronavirus. Willis Decl. ¶ 3, Cruz Decl. ¶ 3. All that MDCR has done is place a memo on the wall explaining that court was canceled and that yard time is mandatory, but many people cannot read and therefore cannot understand the written memo. Cruz Decl. ¶ 3. Reports from family and friends or the news are the only sources of information available to people jailed in Metro West. Blanco Decl. ¶ 17; Hill Decl. ¶ 4; Willis Decl. ¶ 3. People are “scar[ed] because [they] don’t know what’s going on” or “how to protect [them]selves.” Hill Decl.
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¶ 4. D. COVID-19 is exceedingly dangerous for medically vulnerable Plaintiffs.
Plaintiffs suffer from moderate asthma and bronchitis, severe or chronic asthma, epilepsy, type 1 diabetes, HIV, as well as paraplegia and a spinal condition called cystic myelomalacia with a failing respiratory system. Cruz Decl. ¶ 2; Blanco Decl. ¶ 3; Willis Decl. ¶ 2; Flores Decl. ¶ 2; Hill Decl. ¶ 2; Swain Decl. ¶ 2; Bernal Decl. ¶ 2. They suffer underlying health conditions recognized by the CDC and medical experts as medically vulnerable, and possible exposure to COVID-19 is exceedingly dangerous, even fatal, for Plaintiffs. Compl. ¶ 22. Older people and those with these underlying conditions are more likely to develop serious illness if they contract COVID-19.4 Individuals with these conditions face a fatality rate of approximately 15% if they contract COVID-19.5
ARGUMENT In this case, Plaintiffs seek two forms of immediate relief. First, Plaintiffs, and the class as a whole, seek an order requiring the Defendants to follow several procedures, recommended by medical professionals and the CDC Guidance on the management of COVID-19 in jails and correctional settings, that ensure those detained at Metro West: 1) are informed about the existence of COVID-19; 2) can practice social distancing; 3) can maintain necessary hygiene; and 4) have access to adequate and timely medical treatment to screen, test, and treat symptoms. Second, the Medically Vulnerable Subclass, composed of the elderly and those with certain preexisting medical conditions, seek immediate release from the chaotic, infectious jail
4 World Health Organization, Q&A on coronaviruses (COVID-19) (Mar. 9, 2020), https://www.who.int/news-room/q-a-detail/q-a-coronaviruses. 5 Compl. Exhibit 15, Declaration of Dr. Carlos Franco Paredes, Fraihat v. U.S. ICE, No. 19-cv1546, ECF No. 81-12 (C.D. Cal. Mar. 24, 2020).
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environment through a writ of habeas corpus. Their lives depend on how quickly they are released from that environment. I. Plaintiffs are entitled to a temporary restraining order and preliminary injunction
requiring Defendants to change their practices at Metro West to conform to medically accepted means of preventing and mitigating the spread of COVID-19. To obtain either a temporary injunction or a preliminary injunction, a party must demonstrate that: “(1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.” Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247 (11th Cir. 2016). That standard is met here. A. Plaintiffs are likely to succeed on the merits because Defendants are
deliberately indifferent to the serious, possibly fatal threat of COVID-19. Plaintiffs and Class members are currently at imminent risk of death or serious injury from exposure to the coronavirus. If this litigation is decided in the ordinary course, many Class members may become seriously ill and die before final judgment is entered, and countless others will suffer severe pain or permanent organ damage. Class members are highly likely to succeed on their claims because Defendants are deliberately indifferent to the risk that Plaintiffs will contract COVID-19 within the current conditions of Metro West in violation of the Eighth Amendment and Fourteenth Amendment’s Due Process Clause. The Defendants’ failure to implement the basic steps recommended by both health experts and the CDC—including access to information about COVID-19, soap and water so that those detained can wash their hands after touching objects or other people, giving people sufficient space to stay at least six feet away from others at all times, the ability to clean and disinfect all surfaces touched by multiple people at least once per day, and access to basic medical screening and
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treatment protocols for infectious disease—constitutes deliberate indifference in violation of the Fourteenth Amendment.
The government has a constitutional duty to protect those it detains from conditions of confinement that create “a substantial risk of serious harm” to detained individuals. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The right to be free from exposure to serious harm arises under the Eighth Amendment for people convicted of a crime. Id.; Estelle v. Gamble, 429 U.S. 97, 104 (1976). This right and arises with equal force under the Fourteenth Amendment’s Due Process Clause for those detained pre-trial. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); Keith v. DeKalb County, Georgia, 749 F.3d 1034, 1044 n.35 (11th Cir. 2014). Under these Amendments, an official is liable if she displays “deliberate indifference” to “a condition of confinement that is sure or very likely to cause serious illness and needless suffering” to someone detained, which includes “exposure of inmates to a serious, communicable disease.” Helling v. McKinney, 509 U.S. 25, 33 (1993); see also Truss v. Warden, 684 F. App’x 794, 796 (11th Cir. 2017) (recognizing that exposure to tuberculosis can constitute a substantial risk of serious harm).
To demonstrate a violation of the Eighth and Fourteenth Amendments, a plaintiff must show “‘(1) a substantial risk of serious harm; (2) the defendants’ deliberate indifference to that risk; and (3) causation.’” Lane v. Philbin, 835 F.3d 13012, 1307 (11th Cir. 2016). Plaintiffs easily satisfy these requirements.
1. Risk of Serious Harm People detained at Metro West are at a substantial risk of serious harm from COVID-19. A plaintiff satisfies this requirement when conditions are “extreme and pose[] an unreasonable risk of serious injury to his future health or safety.” Lane, 835 F.3d at 1307. COVID-19 is just such a threat of serious injury. It is a novel disease with no vaccine, effective treatment, or cure. The
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disease can cause severe pain in even mild and moderate cases. It has been described as feeling like “having glass in your lungs” or “drowning in your own blood” and leaves patients choking and struggling to breathe.6 And it can cause permanent damage to a person’s lungs.7 In critical and severe cases, COVID-19 can cause pneumonia and inflammation of the lungs that can require days or weeks attached to a ventilator and blood oxygenation machines.8 Finally, in the most severe causes, COVID-19 results in death of between 1% and 3.4% of patients—a rate 10 times higher than the risk of death from influenza.9
And the risk of contracting COVID-19 is extreme and unreasonable. Across the country, cities, states, and the federal government have issued “shelter in place” orders closing public schools until further notice, shutting down all non-essential businesses, banning people from eating in restaurants or otherwise congregating in groups of more than 10 people, and requiring individuals to stay in their homes unless it is absolutely necessary to leave. Even when they leave, people are advised to stay at least six feet from other individuals, wear masks to prevent the risk of transmission through the air, avoid touching their faces while outside, and washing their hands immediately after returning home. These measures are unprecedented in the United States, and the message is clear: any risk of contracting COVID-19 is unacceptable for the American public. So too for Plaintiffs who are detained, where the risk of contracting the virus is even greater than in the general population.10
6 Compl. ¶ 25; Virus feels like ‘glass in lungs’: Fit mum’s chilling video, Chronicle (Mar. 21, 2020), https://www.thechronicle.com.au/news/glass-in-lungs-fit-mums-chilling-video/3977749/. 7 Compl. ¶ 25. 8 Ex. 11, Greer Decl. ¶¶ 23-24; Compl. ¶ 24. 9 Compl. ¶ 25. 10 Greer Decl. ¶¶ 10-11; Compl. ¶ 36.
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Recognizing that COVID-19 presents a particularly serious threat to people who are
detained, other federal courts have acted quickly in recent days to grant extraordinary relief to
release people from detention, including in the form of granting petitions for writ of habeas corpus,
reversing decisions to detain individuals before trial because they were found to be a safety risk,
and ordering compassionate release.11 These myriad opinions reflect the emerging consensus of
the federal courts: people cannot be detained if they are exposed to a serious risk of contracting
COVID-19. And COVID-19 is already in Metro West. Every possible step must be taken to
ameliorate the risk to those who remain detained.
11 See, e.g., United States v. Grobman, No. 18-cr-20989, Dkt. No. 397 (S.D. Fla. Mar. 29, 2020); United States v. Perez, 17-cr-513-3 (AT) (S.D.N.Y. Apr. 1, 2020); United States v. Underwood, No. 8:18-cr-201-TDC, Dkt. No. 179 (D. Md. Mar. 31, 2020); Thakker v. Doll, 20-cv-480 (M.D. Pa. Mar. 31, 2020), ECF No. 47; Castillo et al. v. Barr, 5:20-cv-00605, ECF Doc. 32 (C.D. Cal. Mar. 27, 2020); United States v. Meekins, Case No. 1:18-cr-222-APM, Dkt. No. 75 (D.D.C. Mar. 31, 2020); United States v. Marin, No. 15-cr-252, Dkt. No. 1326 (E.D.N.Y. Mar. 30, 2020); United States v. Davis, No. 1:20-cr-9-ELH, Dkt. No. 21, 2020 WL 1529158 (D. Md. Mar. 30, 2020); United States v. Muniz, Case No. 4:09-cr-199, Dkt. No. 578 (S.D. Tex. Mar. 30, 2020); United States v. Bolston, No. 1:18-cr-382-MLB, Dkt. No. 20 (N.D. Ga. Mar. 30, 2020); United States v. Mclean, No. 19-cr-380, Dkt. No. (D.D.C. Mar. 28, 2020); United States v. Powell, No. 1:94-cr316-ESH, Dkt. No 98 (D.D.C. Mar. 28, 2020); United States v. Hector, No. 2:18-cr-3-002, Dkt. No. 748 (W.D. Va. Mar. 27, 2020); United States v. Kennedy, 18-cr-20315 (JEL), Dkt. No. 77 (E.D. Mich. Mar. 27, 2020); United States v. Hector, 18-cr-3, Dkt. No. 17 (4th Cir. Mar. 27, 2020); United States v. Michaels, 8:16-cr-76-JVS, Minute Order, Dkt. No. 1061 (C.D. Cal. Mar. 26, 2020); United States v. Jaffee, No. 19-cr-88 (RDM) (D.D.C. Mar. 26, 2020); United States v. Harris, No. 19-cr-356 (RDM), 2020 WL 1503444 (D.D.C. Mar. 26, 2020); USA v. Garlock., No. 18 Cr 00418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020); Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir. Mar. 24, 2020); U.S. v. Stephens, 15 Cr. 95 (AJN), 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020); In re. Extradition of Alejandro Toledo Manrique, 2020 WL 1307109, (N.D. Cal. March 19, 2020); Committeefor Public Counsel Servs. v. Chief Justice, No. SJC-12926 (Mass. Apr. 3, 2020), https://www.mass.gov/files/documents/2020/04/03/12926.pdf; Press Release, Legal Aid Society, Legal Aid Secures Release of 106 Incarcerated New Yorkers at a high risk of COVID-19 from Technical Parole Violation Holds on Rikers Island (Mar. 27, 2020), https://legalaidnyc.org/wp-content/uploads/2020/03/03-27-20-Secures-Release-of-106Incarcerated-New-Yorkers-at-a-high-risk-of-COVID-19-from-Technical-Parole-ViolationHolds-on-Rikers-Island.docx.pdf?fbclid=IwAR3IvbeyQ1BdlVdnwjsZjVd_S71X06ppuQAyGK2vUj7n2XpOa5URMPyZfQ.
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2. Defendants’ Deliberate Indifference
The second prong of the deliberate indifference inquiry “has three components:
(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that
is more than mere negligence.” Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003). All three
requirements are met here.
First, it cannot be seriously disputed that any government official, including Defendants,
are subjectively unaware of the risk posed by the coronavirus both in general and particularly
within detention environments. Whether the source is government orders,12 CDC guidance aimed
particularly at jails and prisons,13 advocacy letters sent to Defendants,14 or articles written in
nationwide publications,15 the Defendants have been made well aware of the risks to those who
reside at Metro West. Their own communications and announcements emphasize this awareness.
12 Compl. ¶ 55; President’s Coronavirus Guidelines for America, Whitehouse.gov (Mar. 16, 2020), https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirusguidance_8.5x11_315PM.pdf. 13 CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/downloads/guidance-correctional-detention.pdf. 14 Compl. ¶ 47. 15 David Mills & Emily Galvin-Almanza, As many as 100,000 incarcerated people in our prisons will die from the coronavirus, unless the US acts now, Bus. Insider (Apr. 2, 2020), https://www.businessinsider.com/failure-to-release-prisoners-is-condemning-thousands-to-death2020-4; Anna Flagg & Joseph Neff, Why Jails Are So Important in the Fight Against Coronavirus, N.Y. Times (Mar. 31, 2020), https://nyti.ms/3aIBHjv; Timothy Williams et al., ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars, N.Y. Times (Mar. 30, 2020), https://nyti.ms/2Jmnf4z; Emma Grey Ellis, Covid-19 Poses a Heightened Threat in Jails and Prisons, Wired (Mar. 24, 2020), https://www.wired.com/story/coronavirus-covid-19-jails-prisons; Ryan Lucas, As COVID-19 Spreads, Calls Grow to Protect Inmates in Federal Prisons, NPR (Mar. 24, 2020), https://www.npr.org/sections/coronavirus-live-updates/2020/03/24/820618140/ascovid-19-spreads-calls-grow-to-protect-inmates-in-federal-prisons; Weihua Li & Nicole Lewis, This Chart Shows Why the Prison Population Is So Vulnerable to COVID-19, Marshall Proj. (Mar. 19, 2020), https://www.themarshallproject.org/2020/03/19/this-chart-shows-why-the-prisonpopulation-is-so-vulnerable-to-covid-19; German Lopez, A coronavirus outbreak in jails or
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Second, Defendants have disregarded that risk by failing to implement the steps urged by health experts, including the CDC, to stop the spread of the virus. An official demonstrates disregard of a risk by “failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847. Here, the list of reasonable measures to prevent the spread of COVID-19 is well delineated and publicized: “[s]ocial distancing and proper hygiene are the only effective means by which we can stop the spread of COVID-19.” Memo. & Order at 21, Thakkar v. Doll, No. 20-cv-480 (Mar. 31, 2020), ECF No. 47. As health professionals have explained to the general public, COVID-19 is best avoided by (1) “[w]ash[ing] your hands for at least 20 seconds with soap and water or hand sanitizer that contains at least 60% alcohol often (especially after touching common surface areas . . . and other social interactions),” (2) avoiding crowded places “and maintain[ing] at least 6 feet of distance between yourself and others,” and (3) “[d]isinfect[ing] surfaces that are used regularly, using household sprays or wipes.”16 The CDC has also recommended these same measures within jails and prisons, calling social distancing of at least six feet at all times the “cornerstone of reducing transmission” of COVID-19 within detention facilities, pushing facilities to “[p]rovide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent
prisons could turn into a nightmare, Vox (Mar. 17, 2020), https://www.vox.com/policy-andpolitics/2020/3/17/21181515/coronavirus-covid-19-jails-prisons-mass-incarceration. 16 Angel N. Desai & Rayal Patel, Am. Medical Ass’n, Stopping the Spread of COVID-19 (Mar. 20, 2020), https://jamanetwork.com/journals/jama/fullarticle/2763533; see also CDC, How to Protect Yourself (last updated Apr. 1, 2020), https://www.cdc.gov/coronavirus/2019ncov/prevent-gettingsick/prevention.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2 019-ncov%2Fprepare%2Fprevention.html (same).
19

Case 1:20-cv-21457-KMW Document 3 Entered on FLSD Docket 04/05/2020 Page 20 of 33
hand washing,”17 and advising that facilities must, “[s]everal times a day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas.”18
Despite these clear directives, Defendants have failed to provide the people jailed at Metro West with the space, soap, sanitizer, and cleaning supplies necessary to allow staff and inmates to remain safe. Nor have they provided timely and adequate medical care to identify, isolate, and treat people who develop symptoms. And as noted above, Defendants deny Plaintiffs basic preventive measures such as personal protective equipment, enough space to sleep or exist more than six feet away from another person, access to medical attention, or paper towels. As a result, Plaintiffs and the class they represent are at a substantial risk of contracting COVID-19.19 And Defendants’ failure to act puts them out of step with the action being taken by other jails and prisons around the country, who are implementing the steps urged by the medical community and federal government.20

17 The CDC likewise recommends that corrections officers be provided soap at no cost so that they can avoid contracting or transmitting the coronavirus when they touch surfaces or persons within the facility. Interim Guidance on Management of Coronavirus Disease 2019, at 10.

18 Interim Guidance on Management of Coronavirus Disease 2019, at 4, 8-9.

19 Greer Decl. ¶¶ 10-21.

20 See Gov. Gretchen Whitmer, Executive Order No. 2020-29 (COVID-19),

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html; Megan Harris

et al., With In-Person Visits Eliminated, PA Prisons Get More Phone & Video Privileges, WESA

(Mar. 19, 2020), https://www.wesa.fm/post/person-visits-eliminated-pa-prisons-get-more-phone-

video-privileges#stream/0; Arizona Dep’t of Corrections, Media Advisory, COVID-19

Management Strategy Update (Mar. 18 2020);Joe Szydlowski, Sheriff’s Office: Hunger strike ends

at

Monterey

County

Jail,

Californian

(Mar.

27,

2020),

https://www.thecalifornian.com/story/news/2020/03/27/sheriffs-office-hunger-strike-ends-

monterey-county-jail/2929726001/; Mela Seyoum, Santa Rita Jail adjusts as organizations call

for action amid COVID-19, Daily Californian (Apr. 2, 2020),

https://www.dailycal.org/2020/04/02/santa-rita-jail-adjusts-as-organizations-call-for-action-

amid-covid-19/;

20

Case 1:20-cv-21457-KMW Document 3 Entered on FLSD Docket 04/05/2020 Page 21 of 33
In the typical deliberate indifference case, courts often given latitude to jail and prison officials to decide what actions are “reasonable” to deal with safety within facilities. But COVID19 is an altogether different threat, and its spread within Metro West poses a danger not only to those confined and employed there, but to the entire surrounding community. There are currently few, if any, tests available, and symptom checks fail because of the virus’s long latency and ability to live in asymptomatic people.21 Moreover, no vaccine or prophylactics yet exist, and the morality rate is much higher than other diseases.22 At this moment, there is only one way to minimize the risk of COVID-19: prevent its spread.23 This means allowing people to keep six feet of distance, wash their hands frequently, disinfect regularly used surfaces, and identify, isolate, and medically treat those who develop symptoms.24 By failing to do these things, or allow detainees to do them, Defendants are knowingly exposing Plaintiffs, guards, and other jail staff to a risk of a painful and lethal disease. That risk is unacceptable.
3. Causation Plaintiffs are only exposed to an unacceptably high risk of contracting COVID-19 because Defendants are denying them access to sufficient space, information, personal cleaning supplies, cleaning supplies for the surfaces they touch, and medical care for those who may be infected. An injunction requiring these steps would minimize the risk of exposure to the virus and thus satisfy the requirements of the Eighth and Fourteenth Amendments.
21 Compl. ¶¶ 20-21, 26. 22 Compl. ¶¶26-27, 22 n.17. 23 Compl. ¶ 28. 24 Compl. ¶¶ 28, 33.
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B. Plaintiffs will suffer irreparable harm without a preliminary injunction. Plaintiffs allege injuries that are irreparable and, therefore, are not suitable for resolution in the ordinary course of litigation. There is no injury that is more irreparable than death, and Plaintiffs face a heightened risk of contracting a deadly virus. This risk is not speculative: in one Louisiana prison where COVID-19 has been allowed to spread, five people have been killed by the disease in less than a week.25 In addition to the risk of death, people who contract COVID-19 may develop symptoms that are acutely painful and may result in permanent, irreparable lung damage.26 An injunction here is appropriate to prevent a substantial risk of permanent, debilitating injury. See Thomas v. Bryant, 614 F.3d 1288, 1318 (11th Cir. 2010) (“[I]njunctive relief is appropriate ‘to prevent a substantial risk of serious injury from ripening into actual harm.’” (quoting Farmer v. Brennan, 511 U.S. 825, 845 (1994))); Hoffer v. Jones, 290 F. Supp. 3d 1292, 1304 (N.D. Fla. 2017) (finding prisoners would “undoubtedly suffer irreparable injury” if not treated properly for Hepatitis C virus because, left untreated, the virus causes liver damage). Moreover, as discussed above, Plaintiffs are likely to succeed on the merits of their argument that the conditions in the jail violate their constitutional rights, and “[t]he existence of a continuing constitutional violation constitutes proof of an irreparable harm.” Laube v. Haley, 234

25 Joseph Neff & Keri Blakinger, Federal Prisons Agency “Put Staff in Harms Way” of

Coronavirus,

Marshall

Proj.

(Apr.

3,

2020),

https://www.themarshallproject.org/2020/04/03/federal-prisons-agency-put-staff-in-harm-s-way-

of-coronavirus; Sarah N. Lynch, Death toll from COVID-19 at Oakdale prison in Louisiana

continues to climb, Reuters (Apr. 2, 2020) https://www.reuters.com/article/us-health-coronavirus-

prisons/death-toll-from-covid-19-at-oakdale-prison-in-louisiana-continues-to-climb-

idUSKBN21K2D4.

26 Erin Schumaker, What we know about coronavirus’ long-term effects, ABC News (Mar. 28, 2020).

22

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F. Supp. 2d 1227, 1251 (M.D. Ala. 2002) (finding irreparable harm prong of preliminaryinjunction test satisfied where plaintiffs made showing that prisoners were living in overcrowded and understaffed conditions in violation of Eighth Amendment).
These significant harms have led courts across the country to recognize that risk of exposure to the coronavirus constitutes an irreparable harm. See supra note 12 (collecting cases granting emergency release to people who are exposed to coronavirus). Plaintiffs easily meet the requirement of showing irreparable harm.
C. The harm Plaintiffs are suffering outweighs any potential harm to defendants caused by a preliminary injunction.
The substantial risk to Plaintiffs of contracting a deadly disease considerably outweighs any potential harm to Defendants. As discussed above, Plaintiffs will suffer significant harm, including possibly death, if forced to remain in the conditions currently prevailing in Metro West.
The only potential harm Defendants face if ordered to bring their jail into compliance with CDC guidelines is economic: MDCR staff may have to expend additional time, and the Department may have to expend additional money, to provide the information, hygiene products, cleaning agents, and medical treatment necessary to kill the virus. But the possibility that Defendants will have to spend money to reduce the substantial risk that Plaintiffs will be exposed to a deadly disease does not tip the balance in their favor because “[l]ack of funds for facilities cannot justify an unconstitutional lack of competent medical care and treatment for inmates.” Ancata v. Prison Health Servs. Inc., 769 F.2d 700, 705 (11th Cir. 1985); see Hoffer, 290 F. Supp. 3d at 1304 (finding balance of harms weighed in favor of plaintiffs seeking injunction against Florida Department of Corrections for inadequate treatment of Hepatitis C because “the only harm facing FDC is that it will have to spend more money than it wants to”); Laube, 234 F. Supp. 2d at
23

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1252 (“The threat of harm to the plaintiffs cannot be outweighed by the risk of financial burden or administrative inconvenience to the defendants.” (citing Ancata, 769 F.2d at 705)).27
In fact, the requested relief will benefit the jail staff employed by Defendants by decreasing their risk of contracting COVID. See Laube, 234 F. Supp. 2d at 1252 (finding harm to prisoners in overcrowded, understaffed prison outweighed harm to defendants in part because “the defendants will suffer no harm from providing sufficient staff and adequate facilities” and “[i]n fact, officers employed by the defendants face an extremely dangerous situation, and they, too, will benefit from injunctive relief”). Estimates show that if the infection spreads, a significant portion of jail staff are likely to contract the virus.28 This could also cause economic harm to Defendants as the significant loss of manpower may require them to pay overtime to those who remain on the job. An injunction is therefore in Defendants’ interest as well.
D. A preliminary injunction promotes the public interest. “‘[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (citation omitted); Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012). Accordingly, the public interest would be served by issuance of a preliminary injunction requiring Defendants to provide class members with constitutionally adequate measures to prevent the spread of COVID-19. Moreover, it is in the public interest to prevent the spread of COVID-19 within Metro West. An outbreak in Metro West will have serious ramifications for people incarcerated within its walls,
27 And as states and the federal government increasingly earmark funding specifically for COVID19 relief, any economic harm may well be offset. 28 See Greer Decl. ¶¶ 19-20; Letter from Employees of Cook County Jail to Toni Preckwinkle and Thomas Dart (Mar. 31, 2020), https://www.documentcloud.org/documents/6824768-Letter-toTom-Dart-and-Toni-Preckwinkle-3-31.html.
24

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employees and medical staff that carry the infection into their homes and communities, and MiamiDade County residents who will suffer from the ensuing rapid spread of this infectious disease. As Dr. Pedro Greer explains, “[a]s an outbreak spreads through jails,” both medical personnel and prison guards become sick and cannot show up to work. Greer Decl. ¶¶ 19-20. This absenteeism creates “substantial safety and security risk[s] to both the people inside the facilities and the public.” Id. ¶ 20. An outbreak in the jail will also place a heavy burden on regional health care institutions, which will be relied upon to manage and treat those experiencing complications or severe illness. Id. ¶¶ 18, 34. When this local medical institution is overwhelmed with a surge of patients, there will not be sufficient resources to treat everyone who requires medical attention. Id.
Hospitals in Miami-Dade County are already suffering. At least some people incarcerated in Metro West who require medical attention are sent to Jackson Memorial Hospital, see Swain Decl. ¶ 4, one of the largest hospitals in the United States and the largest hospital in the state of Florida. Jackson Hospital is already experiencing a shortage of supplies as its intensive care unit reaches capacity. A trauma physician who works there says they “are slowly descending into chaos.”29 An outbreak in Metro West will push nearby hospitals and communities into chaos, and an injunction requiring necessary safeguards in the midst of a pandemic will undoubtedly serve the public interest. II. Immediate habeas corpus release is necessary for the medically vulnerable at Metro
West. The members of the Medically Vulnerable Subclass all have conditions that render them exceptionally vulnerable to death or serious harm if exposed to COVID-19. Because of their
29 Paul Murphy, Trauma physician at Florida’s biggest hospital: ‘We are slowly descending into chaos,’ CNN (Mar. 29, 2020), https://www.cnn.com/world/live-news/coronavirus-outbreak-0329-20-intl-hnk/h_7375d7e4bc0904963554159cb3f2cfc0.
25

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medical vulnerability, there is no practicable way to ensure that they can avoid infection and no practicable way to ensure that, if infected, they receive prompt and reasonable medical treatment within the jail. Therefore, their continued detention is a grave risk to their lives and violates the Constitution. They must be released pursuant to a writ of habeas corpus under 28 U.S.C. § 2241.30
The subclass members face a heightened risk of contracting a deadly virus merely because they are incarcerated under these unique circumstances, and additionally they face a heightened risk of dying if they do. Most people (80%) will develop a mild upper respiratory infection if they contract the coronavirus, but serious illness can occur in up to 16% of cases, and older people and those with underlying medical conditions, such as lung disease, heart disease, or diabetes, are more likely to develop serious illness.31
As a practical matter, there is no way to constitutionally confine Medically Vulnerable Subclass members in the jail. Greer Decl. ¶¶ 27-34, 38. The coronavirus is already present at the jail; multiple jail officers have tested positive for COVID-19, and that number is growing over time. For the Medically Vulnerable Subclass, every interaction with a staff member or other
30 Medically Vulnerable Subclass members bring this action under 28 U.S.C. § 2241 and Article I, Section Nine of the United States Constitution. They, therefore, need not satisfy the heightened requirements of § 2254. Because they have not been convicted of a crime and are not in custody “pursuant to the judgment of a state court,” they may bring this action under § 2241 and need not bring this action under § 2254, which governs habeas petitions challenging state criminal convictions. See Medberry v. Crosby, 351 F.3d 1049, 1060 (11th Cir. 2003) (finding a person in state pretrial detention whose detention violates the Constitution of the United States “would file an application for a writ of habeas corpus governed by § 2241 only”). Section 2254’s heightened standards of review, therefore, do not apply to this case. See id.; Phillips v. Court of Common Pleas, Hamilton County, Ohio, 668 F.3d 804, 809 (6th Cir. 2012); Martinez v. Caldwell, 644 F.3d 238, 242 (5th Cir. 2011); Walck v. Edmondson, 472 F.3d 1227, 1234–35 (10th Cir. 2007); Stow v. Murashige, 389 F.3d 880, 888 (9th Cir. 2004). 31 World Health Organization, Q&A on coronaviruses (COVID-19) (Mar. 9, 2020), https://www.who.int/news-room/q-a-detail/q-a-coronaviruses.
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inmate, every breath they take, every meal spent in the communal facility, and even every surface they touch could bring them into contact with the coronavirus.
Although it is in theory possible for a jail to implement the social-distancing, sterilization, and other protective practices that the CDC requires in a jail, because subclass members are so vulnerable to death and serious injury from the disease, there is no time for those measures now at least as applied to them. And regardless, as explained below and in the Complaint, Defendants have failed to implement those procedures. Subclass members, then, are currently jailed in a facility that threatens their lives. They must be removed from those conditions.
For these reasons, in recent weeks, courts across the country have granted emergency habeas petitions ordering the release of medically vulnerable people from confinement. See, e.g., Francisco Hernandez v. Wolf, 20-cv-617 (TJH), Dkt. No. 17 (C.D. Cal., Apr. 1, 2020); Thakker v. Doll, No. 20-cv-480 (JEJ), Dkt. No. 47 (M.D. Pa, Mar. 31, 2020) (“Social distancing and proper hygiene are the only effective means by which we can stop the spread of COVID-19. Petitioners have shown that, despite their best efforts, they cannot practice these effective preventative measures in the Facilities. Considering, therefore, the grave consequences that will result from an outbreak of COVID-19, particularly to the high-risk Petitioners in this case, we cannot countenance physical detention in such tightly-confined, unhygienic spaces.”); Fraihat v. Wolf, 20-cv-590 (TJH), (C.D. Cal., Mar. 30, 2020) (“This is an unprecedented time in our nation’s history, filled with uncertainty, fear, and anxiety. But in the time of a crisis, our response to those at particularly high risk must be with compassion and not apathy. The Government cannot act with a callous disregard for the safety of our fellow human beings.”); Castillo v. Barr, 20-cv-605 (TJH)(AFM), Dkt. No. 32 (C.D. Cal. Mar. 27, 2020); Coronel, 2020 WL 1487274; Basank v. Decker, 20-cv-2518 (AT), Dkt. No. 11 (S.D.N.Y. Mar. 26, 2020) (“The risk that Petitioners will
27

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face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO.”); Ronal Umana Jovel v. Decker, 12-cv-308 (GBD), Dkt. No. 27 (S.D.N.Y. Mar. 26, 2020).
And for all of the reasons previously explained, the Medically Vulnerable Subclass is entitled to this relief on an emergency basis. See, e.g., Hernandez, No. 20-cv-617 (TJH), Dkt. No. 17 (issuing temporary restraining order granting habeas petition brought pursuant to section 2241). All of the arguments about why the class of all those detained at Metro West are entitled to a temporary restraining order and preliminary injunction apply all the more to the subclass. They are likely to succeed on the merits and demonstrate that the Defendants are deliberately indifferent to the serious risk of illness and death from the coronavirus. They face irreparable harm: they are far more likely than the average person to suffer complications and ultimately die from COVID-19. Their release will not harm Defendants. To the contrary, releasing medically vulnerable people will reduce the amount of soap and protective masks the jail will need to give out, reduce pressure on Metro West’s limited medical resources, and provide staff and remaining inmates with more space to use for social distancing. Finally, it is in the public interest to release medically vulnerable inmates. These individuals are most likely to need advanced medical care at local hospitals, overwhelming the local public health system.
For all of these reasons, the medically vulnerable now bring an extraordinary request for their release. They turn to this Court to save their lives.
CONCLUSION For the above-stated reasons, Plaintiffs request that the Court immediately: 1. Issue an order that a) requires Defendants to promptly provide Plaintiffs and the Court with a list of all individuals who are members of the Medically Vulnerable Subclass as defined in
28

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paragraph 84 of Plaintiffs’ Complaint, b) requires Defendants to promptly thereafter provide Plaintiffs and the Court with a list of any individuals in the Medically Vulnerable Subclass who Defendants object to releasing and the basis for that objection, and c) sets a time and date for a hearing in which the Court will resolve any disputes about whether certain listed individuals are entitled to relief; and
2. Issue a temporary restraining order requiring the Defendants to provide the following protections at Metro West Detention Center:
• Effectively communicate to all people incarcerated, including low-literacy and nonEnglish-speaking people, sufficient information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices to reasonably ensure that individuals are able to take precautions to prevent infection;
• Provide adequate spacing of six feet or more between people incarcerated, to the maximum extent possible at Metro West Detention Center’s current population level, so that social distancing can be accomplished;
• Ensure that each incarcerated person receives, free of charge: (1) an individual supply of liquid hand soap and paper towels sufficient to allow frequent hand washing and drying each day, and (2) an adequate supply of disinfectant hand wipes or disinfectant products effective against the virus that causes COVID-19 for daily cleanings;
• Ensure that all incarcerated people have access to hand sanitizer containing at least 60% alcohol;
• Provide access to daily showers and daily access to clean laundry, including clean personal towels and washrags after each shower;
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• Require that all MDCR staff wear personal protective equipment, including masks, when interacting with any person or when touching surfaces in cells or common areas;
• Require that all MDCR staff wash their hands with soap and water or use hand sanitizer containing at least 60% alcohol both before and after touching any person or any surface in cells or common areas;
• Take each incarcerated person’s temperature daily (with a functioning and properly operated thermometer) to identify potential COVID-19 infections;
• Assess (through questioning) each incarcerated person daily to identify potential COVID-19 infections;
• Conduct immediate testing for anyone displaying known symptoms of COVID-19; • Ensure that individuals identified as having COVID-19 or having been exposed to
COVID-19 receive adequate medical care and are properly quarantined in a nonpunitive setting, with continued access to showers, recreation, mental health services, reading materials, phone and video calling with loved ones, communications with counsel, and personal property; • Respond to all emergency (as defined by the medical community) requests for medical attention within an hour; • Provide sufficient disinfecting supplies, free of charge, so incarcerated people can clean high-touch areas or items (including, but not limited to, phones and headphones) between each use; • Waive all medical co-pays for those experiencing COVID-19-related symptoms; and
30

Case 1:20-cv-21457-KMW Document 3 Entered on FLSD Docket 04/05/2020 Page 31 of 33 • Waive all charges for medical grievances during this health crisis.
Plaintiffs further request that this Court issue an opinion as soon as is practicable that makes the findings required by 18 U.S.C. §3626(a)(2) and grans a preliminary injunction against Defendants. The required Emergency Certification is attached to this Motion.
Request for Hearing Under Local Rule 7.1(b)(2), Plaintiffs request a hearing on this motion. Plaintiffs submit that because the subject of this case, the protections due to individuals in jail during a pandemic, is novel, argument on this issue may assist the Court. Depending on the arguments Defendants raise in opposition to this motion, a hearing may be necessary to resolve factual disputes or to allow the Court to examine the full scope of the evidence. In the event that an evidentiary hearing is necessary, Plaintiffs seek leave to present testimony of witnesses, including experts, as may be appropriate. Depending on the scope of the evidence in dispute, Plaintiffs estimate that 2-3 hours will be necessary for the hearing.
31

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Date: April 5, 2020

Respectfully Submitted,
/s/ Quinn Smith R. Quinn Smith, Fla. Bar No. 59523  e-mail: quinn.smith@gstllp.com  Katherine Alena Sanoja, Fla. Bar No. 99137  e-mail: katherine.sanoja@gstllp.com  GST LLP  1111 Brickell Avenue, Suite 2715  Miami, Florida 33131  Telephone: (305) 856-7723 
/s/ Meena Jagannath Meena Jagannath, Fla. Bar No. 102684 meena@communityjusticeproject.com COMMUNITY JUSTICE PROJECT 3000 Biscayne Blvd. Ste 106 Miami, Florida 33137 Telephone: (305) 907-7697
/s/ Maya Ragsdale Maya Ragsdale, Fla. Bar No.: 1015395 maya@dreamdefenders.org DREAM DEFENDERS 6161 NW 9th Ave. Miami, Florida 33127 Tel: 786-309-2217
/s/ Alexandria Twinem Alexandria Twinem, D.C. Bar No. 1644851 Pro Hac Vice Admission Pending alexandria@civilrightscorps.org Katherine Hubbard, DC Bar No. 1500503 Pro Hac Vice Admission Pending katherine@civilrightscorps.org CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 2009 Telephone: (202) 894-6126
/s/ Tiffany Yang Tiffany Yang, DC Bar. No. 230836 tyang@advancementproject.org Pro Hac Vice Admission Pending Thomas B. Harvey, MO Bar. No. 61734
32

Case 1:20-cv-21457-KMW Document 3 Entered on FLSD Docket 04/05/2020 Page 33 of 33
Pro Hac Vice Admission Pending tharvey@advacementproject.org ADVANCEMENT PROJECT 1220 L Street NW, Ste 850 Washington, DC 20005 Telephone: (202) 728-9557 Attorneys for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on April 5, 2020 I electronically filed the foregoing with the clerk of the court for the U.S. District Court, Southern District of Florida, using the electronic case filing system of the Court. This Motion will be served in accordance with the Federal Rules of Civil Procedure.
/s/ Katherine A. Sanoja Katherine A. Sanoja, Fla. Bar. 99137
33

Case 1:20-cv-21457-KMW Document 3-1 Entered on FLSD Docket 04/05/2020 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

ANTHONY SWAIN; ALEN BLANCO; BAYARDO CRUZ; RONNIEL FLORES; WINFRED HILL; DEONDRE WILLIS; PETER BERNAL, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
DANIEL JUNIOR, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department; MIAMIDADE COUNTY, FLORIDA;,
Defendants.

Case No. 1:20-cv-21457

CERTIFICATION OF EMERGENCY
I hereby certify that, as a member of the Bar of this Court, I have carefully examined this matter and it is a true emergency.
I further certify that the necessity for this emergency hearing has not been caused by a lack of due diligence on my part, but has been brought about only by the circumstances of this case. The issues presented by this matter have not been submitted to the Judge assigned to this case or any other Judge or Magistrate Judge of the Southern District of Florida prior hereto.
I further certify that I have made a bona fide effort to resolve this matter without the necessity of emergency action.

Dated this 5th day of April 2020.
Signature: _____ _______________
Printed Name: Rodney Quinn Smith II Florida Bar Number: 59523 Telephone Number: 305-856-7723 =====================================================================
1

Case 1:20-cv-21457-KMW Document 3-1 Entered on FLSD Docket 04/05/2020 Page 2 of 2

FOR CLERK’S OFFICE USE ONLY
I hereby certify that the Judge assigned to this case is unavailable for this emergency. (A copy of notification to the Clerk is on file). In accordance with the Court’s Internal Operating Procedures, the matter has been assigned to the Honorable ________________________ through a blind random assignment process. The assignment of this emergency matter shall be of temporary duration, limited only to the immediate relief sought and the case for all other purposes or proceedings shall remain on the docket of the Judge to whom it was originally assigned.

[If Applicable] I hereby certify that the above Judge randomly assigned to this emergency is unavailable. (A copy of notification to the Clerk is on file). Therefore, in accordance with the Court’s Internal Operating Procedures, the Honorable ____________________________ has subsequently been assigned to the matter through a blind random assignment procedure. The assignment of this emergency matter shall be of temporary duration, limited only to the immediate relief sought and the case for all other purposes or proceedings shall remain on the docket of the Judge to whom it was originally assigned.
ANGELA E. NOBLE Court Administrator Clerk of Court

By:

, Deputy Clerk

2

Case 1:20-cv-21457-KMW Document 3-2 Entered on FLSD Docket 04/05/2020 Page 1 of 4
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION Case No.: 1:20-cv-21457
ANTHONY SWAIN et al., Plaintiffs,
v. DANIEL JUNIOR et al.,
Defendants. /
[PROPOSED] ORDER GRANTING PLAINTIFFS’ EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER
The Plaintiffs’ Motion for Temporary Restraining Order is GRANTED: 1. It is ORDERED that within six hours of this order (by _______ [a.m./p.m.] today), Defendants shall provide the Plaintiffs and this Court with a list of all individuals who are currently detained at Metro West Detention Facility awaiting trial and who meet any of the following criteria:
• Are 50 years of age or older; • Have lung disease, including asthma, chronic obstructive pulmonary disease (e.g.
bronchitis or emphysema), or other chronic conditions associated with impaired lung function; • Have heart disease, such as congenital heart disease, congestive heart failure, or coronary artery disease; • Have chronic liver or kidney disease (including hepatitis and dialysis patients); • Have diabetes or other endocrine disorders; • Have epilepsy; • Experience hypertension; • Have a compromised immune systems (such as from cancer, HIV, receipt of an

Case 1:20-cv-21457-KMW Document 3-2 Entered on FLSD Docket 04/05/2020 Page 2 of 4
organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); • Have a blood disorder (including sickle cell disease); • Have an inherited metabolic disorders; • Have a history of stroke; • Have a developmental disability; • Are or have been pregnant within the last two weeks; and/or • Have any other condition identified either now or in the future as being a particular risk for severe illness and/or death caused by COVID-19. Within 6 hours after that list has been submitted (by _______ [a.m./p.m.] today), Defendants shall notify the Plaintiffs and this Court whether they object to the temporary release of any individuals on the list of medically vulnerable people and the basis for that objection. The Court will schedule a hearing at _______ [a.m./p.m.] on ___________________, 2020 to resolve any disputes about whether certain listed individuals are entitled to release.
2. It is further ORDERED that Defendants must: • Effectively communicate to all people incarcerated at Metro West Detention Center, including low-literacy and non-English-speaking people, sufficient information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices to reasonably ensure that individuals are able to take precautions to prevent infection; • Provide adequate spacing of six feet or more between people incarcerated at Metro West Detention Center, to the maximum extent possible at Metro West Detention
2

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Center’s current population level, so that social distancing can be accomplished; • Ensure that each incarcerated person receives, free of charge: (1) an individual
supply of liquid hand soap and paper towels sufficient to allow frequent hand washing and drying each day, and (2) an adequate supply of disinfectant hand wipes or disinfectant products effective against the virus that causes COVID-19 for daily cleanings; • Ensure that all incarcerated people have access to hand sanitizer containing at least 60% alcohol; • Provide access to daily showers and daily access to clean laundry, including clean personal towels and washrags after each shower; • Require that all MDCR staff wear personal protective equipment, including masks, when interacting with any person or when touching surfaces in cells or common areas; • Require that all MDCR staff wash their hands with soap and water or use hand sanitizer containing at least 60% alcohol both before and after touching any person or any surface in cells or common areas; • Take each incarcerated person’s temperature daily (with a functioning and properly operated thermometer) to identify potential COVID-19 infections; • Assess (through questioning) each incarcerated person daily to identify potential COVID-19 infections; • Conduct immediate testing for anyone displaying known symptoms of COVID-19; • Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 receive adequate medical care and are properly quarantined in a non-
3

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punitive setting, with continued access to showers, recreation, mental health services, reading materials, phone and video calling with loved ones, communications with counsel, and personal property; • Respond to all emergency (as defined by the medical community) requests for medical attention within an hour; • Provide sufficient disinfecting supplies, free of charge, so incarcerated people can clean high-touch areas or items (including, but not limited to, phones and headphones) between each use; • Waive all medical co-pays for those experiencing COVID-19-related symptoms; and • Waive all charges for medical grievances during this health crisis. 3. Nothing in paragraph 2 above should be construed to require Defendants to release any person currently incarcerated at Metro West Detention Center. Defendants remain free to voluntarily release any person or group of people currently incarcerated at Metro West Detention Center to the extent allowed by law. 4. This Temporary Order is valid for a limited period of 14 days or until further order of this Court, and the Court’s ruling is subject to change based on a more fully developed record at preliminary injunction proceedings. DONE AND ORDERED in Chambers at Miami, Florida, this ____ day of April 2020.

Copies furnished to: All Counsel of Record

United States District Judge

4

Case 1:20-cv-21457-KMW Document 3-3 Entered on FLSD Docket 04/05/2020 Page 1 of 4
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Case No.: 1:20-cv-21457 ANTHONY SWAIN et al.,
Plaintiffs, v. DANIEL JUNIOR et al.,
Defendants. /
[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
For the reasons explained in the attached opinion, the Court finds that the preliminary injunctive relief requested by Plaintiffs is narrowly drawn, extends no further than necessary to correct the harm this Court finds requires preliminary relief, and is the least intrusive means necessary to correct the harm. 18 U.S.C. § 3626(a)(2). Further, this Court has reached its conclusion after giving substantial weight to any possible adverse impact on public safety and the operation of the criminal legal system that could possibly be caused by preliminary relief. Id. And the preliminary injunctive relief accords with comity principles embodied in 18 U.S.C. § 3626(a)(1)(B).
The Plaintiffs’ Motion for a Preliminary Injunction is GRANTED. It is ORDERED that Defendants must:
• Effectively communicate to all people incarcerated, including low-literacy and nonEnglish-speaking people, sufficient information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices to reasonably ensure that individuals are able to take precautions to prevent infection;
• Provide adequate spacing of six feet or more between people incarcerated, to the maximum extent possible at Metro West Detention Center’s current population level, so that social distancing can be accomplished;

Case 1:20-cv-21457-KMW Document 3-3 Entered on FLSD Docket 04/05/2020 Page 2 of 4
• Ensure that each incarcerated person receives, free of charge: (1) an individual supply of liquid hand soap and paper towels sufficient to allow frequent hand washing and drying each day, and (2) an adequate supply of disinfectant hand wipes or disinfectant products effective against the virus that causes COVID-19 for daily cleanings;
• Ensure that all incarcerated people have access to hand sanitizer containing at least 60% alcohol;
• Provide access to daily showers and daily access to clean laundry, including clean personal towels and washrags after each shower;
• Require that all MDCR staff wear personal protective equipment, including masks, when interacting with any person or when touching surfaces in cells or common areas;
• Require that all MDCR staff wash their hands with soap and water or use hand sanitizer containing at least 60% alcohol both before and after touching any person or any surface in cells or common areas;
• Take each incarcerated person’s temperature daily (with a functioning and properly operated thermometer) to identify potential COVID-19 infections;
• Assess (through questioning) each incarcerated person daily to identify potential COVID-19 infections;
• Conduct immediate testing for anyone displaying known symptoms of COVID-19; • Ensure that individuals identified as having COVID-19 or having been exposed to
COVID-19 receive adequate medical care and are properly quarantined in a nonpunitive setting, with continued access to showers, recreation, mental health
2

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services, reading materials, phone and video calling with loved ones, communications with counsel, and personal property; • Respond to all emergency (as defined by the medical community) requests for medical attention within an hour; • Provide sufficient disinfecting supplies, free of charge, so incarcerated people can clean high-touch areas or items (including, but not limited to, phones and headphones) between each use; • Waive all medical co-pays for those experiencing COVID-19-related symptoms; and • Waive all charges for medical grievances during this health crisis. This Preliminary Injunction shall automatically expire 90 days from its entry, on __________, 2020. 18 U.S.C. § 3626(a)(2). Therefore, Defendants must show cause why the preliminary injunction should not be converted into a permanent injunction at least seven days before the preliminary injunction expires, or ______________, 2020. No extensions of time will be given. The Court further sets a hearing for April _____, 2020 at ____________ [a.m./p.m.] to consider whether this Order has remedied the ongoing violations of the Plaintiffs’ and the purported class’s Eighth and Fourteenth Amendment rights. See 18 U.S.C. § 3626(a)(3)(A). If this Order has failed to remedy the deprivation of these federal rights, the Court shall compose a three-judge court to consider whether a prison release order shall be entered. See 18 U.S.C. § 3626(a)(3)(A); 28 U.S.C. § 2284.
3

Case 1:20-cv-21457-KMW Document 3-3 Entered on FLSD Docket 04/05/2020 Page 4 of 4 DONE AND ORDERED in Chambers at Miami, Florida, this ____ day of April 2020.

Copies furnished to: All Counsel of Record

United States District Judge

4

Case 1:20-cv-21457-KMW Document 3-4 Entered on FLSD Docket 04/05/2020 Page 1 of 6
EXHIBIT 1

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DECLARATION OF ANTHONY SWAIN
I, Anthony Swain, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
1. My name is Anthony Swain. I am 43 years old. I am currently incarcerated at the Metro West Detention Center in Miami, Florida in cell 1D2. I have been in jail since February 3, 2016.
2. I have cystic myelomalacia from my C3 to C6 vertebrae. I am a parapalegic. I only have 50 percent of my body remaining. My femur is amputated. I have a crack in my pelvis. I have no feeling in my left arm. I have no feeling in my fingers. I have severe pain in my spinal chord. My entire body aches. My breathing and respiratory system are failing. I am confined to a wheelchair.
3. I am trying my best to take care of myself in the midst of this pandemic, no different from you, no different from any other human being. But it’s impossible to do that at this jail. Corrections treats us like we are the scum of the earth, like we don’t deserve protection. The cell is filthy and we have no access to hygiene products. Today [on April 3rd] I had to make a mask out of my yellow sock and an elastic string from my catheter bag. We are crowded together with no space between us. We inmates are scared.
4. The cell that I am in houses the most medically vulnerable people in Metro West. There are people in here who have AIDS, people who are recently coming out of surgery, people who are elderly. Despite that, there are no measures taken to protect us from new people who circulate through our cell every day. We see people who are coughing, have fevers, and are otherwise ill, but they aren’t tested and we don’t know what they have.
5. There was one individual who came in here within the last month who was feeling terrible. They took his temperature and found that it was 103 degrees. It took Corrections almost a week to send him to the hospital. During the entire time he was waiting to go to the hospital, he was mixed in with the rest of us, using the same things we use. Soon after that, there was another person who came in with a sore throat. He told us that he didn’t feel well and told us to stay away from him. He was sweating in his sleep, and within a day, he couldn’t get up out of bed. They left him in our cell for two days before they sent him to Jackson hospital.
6. There are about five people in my cell who are coughing, or otherwise complaining about being sick.

Case 1:20-cv-21457-KMW Document 3-4 Entered on FLSD Docket 04/05/2020 Page 3 of 6
7. Even staff in here are sick. A cart nurse who passed out our medication was working in our cell for almost a month. The whole time he was here, he was coughing and sneezing. He finally he stopped coming to work, and is now in quarantine. On April 1 at 2 a.m., an officer came over to my friend telling him that she needed his help. She told him that she didn’t feel well and asked him to count the trays for her in the hallway. I told my friend to try to take care of himself when he was out there. Only God knows what she is sick with. And even with that being said, she was walking around without a mask. Guards don’t wear masks or gloves. There aren’t enough masks to go around.
8. During the four years I’ve been here, I’ve seen many infectious diseases spread around the cell. Just the other day, we had someone in here with MRSA [methicillin-resistant staphylococcus aureus], which is spread through skin-to-skin contact or contact with a contaminated object. He was in here using all the same things that the rest of us use, but it wasn’t until after he left that the officers told us that he was sick with MRSA. How can we protect ourselves if we don’t know about someone’s contagious disease until after the fact?
9. Earlier this year, one person in my cell had scabies, and they left him in here with us for weeks on end before they moved him to open population. By the time he left, more than ten people in the cell had scabies. Pink eye is always going around. There are about fifteen people who have it in my cell. In addition, new people bring in lice, which is then passed around the cell. There is nothing we can do to protect ourselves, no matter what we try, without the assistance of Corrections.
10. There are already people in Metro West who have coronavirus. The cell right next to mine, 1D4, is quarantined. Officers who work in my cell, 1D2, go over to 1D4 and come back in here. After we hounded them, they told us that one inmate in there has coronavirus, and all the people around him got sick and are quarantined. 1D4 has about 60 people in it, and the last I heard, 22-25 people of them are currently sick. The officers told us there’s a lot of people coughing in there, and the inmates don’t have masks. None of the officers or nurses want to go in there. I’ve heard officers from my cell argue in the hall about who is going into the unit, and they try to push the younger officers in the units that are infected. Then, those same officers come right back in here and have contact with us. When they come back, the other officers tell them, “don’t come near my desk, stay where you’re at.” The way I hear the officers talk, it’s clear to me that they are in fear for their lives and don’t want to take the virus home to their families.

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11. 1D2 and 1D4 share the same air vents. The only thing that divides our bathrooms is a door. This is the door that the corporal walk between to do checks between the two cells. If I were to write a note on a piece of paper, I could slide it under the door to their cell.
12. Despite all of these things that are happening in here, Corrections hasn’t issued any publications, flyers, pamphlets, announcements, or anything else to educate us about the coronavirus or how to keep ourselves safe. Every once in a while, an officer will say to make sure we wash our hands. It seems to me that Corrections is trying to stay out of the way, hoping that the situation in here doesn’t go public or hit the news. The information that we have is from the news, or based on things we overhear or get out from nurses, officers, or other inmates. That creates a lot of fear, especially given that we’re hearing that the coronaviruses is in the cell right next to us.
13. This place is a petri dish for disease. We are in such close quarters. You can stay six feet away from other people on the outside, but for us, we are less than two feet away from other people at all times. There are four rows of beds with eight beds per row. One of the walls has sixteen beds of “medical housing,” which is used for people who are coming out of the hospitals or off the streets with an illness. People in medical housing are often coming in here coughing, hacking, and dirty. Medical housing isn’t separated in any way from the rest of the cell. The air circulates in here horizontally, meaning that anything that happens on one side of the cell comes to the other side of the cell. In our unit, if you sneeze, cough, or even pass gas, the person on the other side of the unit can smell it.
14. All of us use the same toilets, the same sinks, the same remotes, and the same phones. People all crowd around the same TV. The remote is filthy. I would have to use gloves to touch that thing. We use the same water cooler and a little hot pot to heat water. We don’t even have access to personal hygiene products. We can’t take any preventative measures to protect ourselves from covid.
15. Corrections does not hire people to sanitize our cells. Instead, they have trustees who do it for free, and who aren’t provided with proper protective equipment. They aren’t giving masks or gloves to trustees who are doing all the dirty work and cleaning dirty people. The cleaning supplies that we are given aren’t real cleaning supplies: they are extremely watered down. We have people in this unit bleeding, yet we don’t even have bleach. I’ve seen blood on the floor because the supposed cleaning products they give us can’t even clean that up.
16. On top of that, our cell is disgusting -- which is especially horrible considering that officers tell us that our cell is the cleanest one in Metro West. The base of the telephone

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leaks because the shower is on the other side of the phone. The showers are dirty regardless of the cleaning supplies that the trustees use to clean it. I have written multiple grievances about the showers because there is something growing in the handicapped shower that I use. You see plants growing from the floor of the shower, ants running around the floor, and mildew everywhere. I have to write grievance after grievance for the shower to be cleaned -- it usually takes 2-3 months to even get a response. The windows are leaking, the sinks are broken, and there was a rag stuck in the handicapped toilet until recently. There are stains on the ground from people falling and busting their heads open on the floor.
17. I can’t trust Corrections to take care of us if we do contract the virus. In my experience, Corrections cuts costs and ignores the medical needs of inmates. For example, I slipped and fell in February 2017, and hurt my wrist. I filed grievance after grievance to be taken to the hospital, but my grievances went unanswered for more than a year. When I was finally taken to the hospital, more than a year and a half later, I no longer had any feeling in my left arm. The doctor at Jackson told that if I’d come sooner, they would have been able to save my wrist. Now, they are going to have to fuse my wrist together.
18. It has also been my experience that Corrections removes people from medical housing as soon as they possibly can because medical housing is more expensive. I have seen Corrections throw sick and injured people into open population with everyone else when they need to be in medical housing. This threatens their safety and the safety of everyone around them.
19. This is a place where I wouldn’t want to catch anything.
This declaration was orally sworn to by Anthony Swain on April 3, 2020 because the Metro West Detention Center is currently not permitting documents to be exchanged for signature.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Anthony Swain on April 3, 2020.
By: Maya Ragsdale Date: April 3, 2020

Case 1:20-cv-21457-KMW Document 3-4 Entered on FLSD Docket 04/05/2020 Page 6 of 6

Case 1:20-cv-21457-KMW Document 3-5 Entered on FLSD Docket 04/05/2020 Page 1 of 3
EXHIBIT 2

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DECLARATION OF WINFRED HILL
I, Winfred Hill, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
1. My name is Winfred Hill. I am 59 years old. I am currently incarcerated at the Metro West Detention Center in Miami, Florida in cell #1D3. I have been in jail since March 6, 2020.
2. I am terrified of getting the virus in here. I have been diagnosed with HIV and diabetes. My body and my immune system are already fighting two diseases, and if I am exposed to the virus, I’m scared that I’ll end up dead.
3. I have heard that the virus is already in two cells here. The cell next to mine has a big sign on the door that says “quarantine.” There are rumors that someone has the virus in there, but no one really knows what’s going on inside. I heard that there’s another cell on quarantine as well because someone else tested positive for the virus in there.
4. Corrections hasn’t been giving us sufficient information about the coronavirus. There haven’t been any announcements. They won’t tell us anything, not even if anyone in here has tested positive. We only know what we find out by watching TV. That’s scary because we don’t know what’s going on, how to protect ourselves, or what Corrections is doing to protect us. I don’t see anything that they’re doing to protect us.
5. I don’t feel like there is any way for me to stay safe in here. I am in a cell with 44 other people, and a lot of people in the cell are constantly coughing. We sleep right next to each other, not even a foot away from each other. On top of that, we are forced to share bunks with other people: I share a bunk with one other person. There are too many people in here to practice any kind of distancing.
6. They don’t even clean the cells to make sure they’re sanitary. We have to clean our cells ourselves. The people who are assigned to clean are called “trustees.” They wipe down the phones, but they don’t give us enough to actually clean. They give us watered down chemicals. In jail, they try to save, they try to cut stuff, to keep the chemicals stretched out.
7. We’re not getting what people outside get. They aren’t giving us gloves. People outside have gloves. What about the people in jail? Why don’t we have gloves?

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8. Every day, there are new people coming into the cell, usually around four people per day. There are new guards coming in here every day too. Some of them wear masks, some wear gloves, but not all of them. They go home every day. So if someone has gotten it on the outside, what are we going to do to prevent it from being spread in here? We are exposed to whatever people are bringing from the outside.
9. There are people being brought in from the streets who are coming into the cell coughing. We don’t know if they have coronavirus or not. Even when people are coughing, Corrections doesn’t send them down to get checked up. No one is coming through the cell and testing people for the virus or taking people’s temperatures to see if they have a fever.
10. If someone wants to get checked up, we have to make a “sick call” to go down to the medical clinic. It takes 4-5 days to get a response to a sick call. Most of the time, if we get a response to our sick calls, the most they’ll do for us is give us a cold pack. It isn’t until we’re feeling like we’re about to die that we get help.
11. We are people, but we aren’t being acknowledged as people. We’re just here and they aren’t protecting us from anything.
This declaration was orally sworn to by Winfred Hill on April 4, 2020 because the Metro West Detention Center is currently not permitting documents to be exchanged for signature.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Winfred Hill on April 4, 2020.
By: Maya Ragsdale Date: April 4, 2020

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EXHIBIT 3

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DECLARATION OF ALEN BLANCO
I, Alen Blanco, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
1. My name is Alen Blanco. I am 39 years old. I am currently incarcerated at the Metro West Detention Center in Miami, Florida in cell 2C2. I have been in jail since December 27, 2019.
2. The fear I have for my safety and health has been making me lose sleep. As inmates, we rely on MDCR to protect us during this time of crisis, but the precautions in here are slim to none. If the virus were to enter our cell, it would spread like wildfire.
3. I am particularly vulnerable to COVID-19. I have had severe asthma since I was born. If the virus comes in here, what happens then? I’m already compromised because of my asthma, and will be severely at risk. There are a lot of other people in here who have preexisting medical conditions or who are elderly. Older people and people with health problems are particularly worried. We are all scared.
4. Even during the best of times, getting medical help at Metro West isn’t easy. When I first came to the jail, I put in a medical request for an inhaler, but it took three months for MDCR to give me my inhaler. If I don’t have an inhaler, and I have an asthma attack, it’s hard for me to breathe. During the time I didn’t have an inhaler in jail, I had three asthma attacks. I rely on my inhaler a lot. Each inhaler they give us has 200 pumps, and I’ve already had to use it 15 times.
5. On top of this, I’ve been feeling terrible over the last week. My throat hurts, my chest hurts, I am having trouble breathing, I am constantly having a dry cough, and I feel weak. I have been really scared because my symptoms match the ones I’ve seen in the news for coronavirus, and the symptoms hurt especially badly because of my asthma. I put in the medical slip to get checked out, and I had to wait three days to get called down to see a nurse. During that three day period, I was in general population with everyone else.
6. When I was called down to the clinic to see the nurse, there were many people waiting, but we were not told to sit six feet apart. I asked for a mask and gloves, but was denied, despite the fact that there are sick people in the medical unit. When it was my time to talk to the nurse, I told him my symptoms, including that I have a dry cough. The nurse did a routine check up and gave me a cold pac, which is just a tylenol cold pill. I specifically asked to be tested for coronavirus due to my symptoms, but the nurse told me that there

Case 1:20-cv-21457-KMW Document 3-6 Entered on FLSD Docket 04/05/2020 Page 3 of 5
were no tests available. I don’t feel safe going back to the clinic, because I have no idea what I could catch down there. I still feel sick and am coughing constantly.
7. I’m not the only person in my cell who is coughing. There are numerous people who are sick and coughing, and new people come in coughing frequently. One person in my cell said his chest was hurting and he has been coughing, but he told me that MDCR refused to test him. No one in my cell, regardless of whether or not we have any symptoms, is being tested or screened. If we want to go to the clinic, we have to put in a medical slip ourselves, and then wait at least three days to be seen.
8. I’ve been hearing on the news how contagious the virus is, and how fast it’s spreading in other jails like Rikers. I’m really worried about the same thing happening in Metro West. We’re packed into a cell that makes it impossible to practice any of the recommendations that we see on the news. I share a cell with 63 other people, but I saw in the news that we are recommended not to be in gatherings of more than 10 people at a time. We sleep at arms length from each other, but I saw that we are supposed to stay at least six feet away from other people. I am 5 feet 6 inches tall and I can reach across and touch the other bunk. There is a bunk underneath me as well. There is no way to practice any kind of distancing.
9. There are also new people coming in and out every day. We never know what new inmates coming in may be exposing us to. A few weeks back, one inmate came in with a mask. The guards were scared of him. He was in the cell for two weeks, and he was coughing the entire time. We were never told what he had and I never saw him go to the medical unit. The same goes for officers. An officer told me they worked a shift right before coming into our unit where he was in a cell that was quarantined. He said that the whole cell was quarantined, which would include at least fifty people. We are trapped in our cells and are vulnerable to whatever people are bringing in.
10. To make matters worse, we are forced to share everything. Our only source of water is a tiny little water cooler. In order to get water, we have to fill up our empty, used water bottles. People drink out of the water bottle, and then put the water bottle right up to the spigot, touching the spigot, which means that any saliva left on the mouthpiece of the bottle gets on the spout where the water comes out of. I sometimes avoid drinking water for that reason.
11. We also share three showers, four sinks, and eight toilets between us (multiple sinks, showers, and toilets are broken). The bathrooms are really dirty, as are the sink areas. The

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showers are disgusting. We have to share phones, which are dirty and aren’t sanitized between uses. I always put a sock on the phone when I use it to try to protect myself.
12. We also don’t have free access to basic products to keep ourselves clean. We don’t have toilet paper. We don’t have tissue paper. We don’t have access to proper hygiene products. We are given state soap, which isn’t antibacterial. To have antibacterial soap, you have to buy it from the commissary, which I do once a week. I buy extra antibacterial soap when I can so that other people around me who can’t afford it can protect themselves too.
13. We can’t even wash our clothes right now. The laundry is broken, and even when it was working, there often wasn’t any laundry detergent available so I had to create my own mixture to wash my clothes. I’d mix my soap from the commissary with state soap and water.
14. The air ventilation system in here is also terrible. The air vents are extremely dirty and it’s so dusty in the cells. I can see the lining coming from the filter, from one room to the next, so it seems to me that the air is shared between cells, throughout the floor.
15. I think that these conditions are the reason why there have been other outbreaks since I’ve been in jail. We are too packed close to each other to prevent the spread of illnesses. For example, a simple cold has been going around for about two weeks now and more than 15 people are coughing and sneezing.
16. This situation isn’t safe for the correctional officers either. One of the officers told me this week that they have to bring their own protective gear to work, and if they do get sick on the job, that they will not get workman’s compensation. That concerns me because that is an incentive for people to come to work, even if they are feeling sick.
17. To make matters worse, Corrections isn’t telling us anything. We learned that there was an officer who tested positive for coronavirus from the news. We’re the last ones to know, we’re in the dark. Everything we find out about, we learn through the news. Every guard tells us something different, and there are no announcements that are made about what’s going on.
18. I have tried to file grievances repeatedly, asking the officers at every shift. Each time, officers tell me that they have to go somewhere else to get the forms, and when I check back with them, they tell me to just wait. I filed one grievance on April 3 because Corrections only brought a few grievances to our cell and other people wanted to file

Case 1:20-cv-21457-KMW Document 3-6 Entered on FLSD Docket 04/05/2020 Page 5 of 5
grievances as well, and so there were not enough grievance forms for me to file about every issue that I have. The grievance that I wrote pertained to our lack of access to masks. I could not write about any of the other concerns that I have about our lack of protection from coronavirus by Corrections, because each grievance must be very specific or it will be rejected.
19. I can only imagine what the coronavirus would do if it was in here, how far it would spread, how fast it would go. As much as they say we’re safe and the virus is not in the building, we hear and see otherwise. All I’m asking is a chance to have the medical care and protection that people have on the outside.
This declaration was orally sworn to by Alen Blanco on April 3, 2020 because the Metro West Detention Center is currently not permitting documents to be exchanged for signature.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Alen Blanco on April 3, 2020.
By: Maya Ragsdale Date: April 3, 2020

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EXHIBIT 4

Case 1:20-cv-21457-KMW Document 3-7 Entered on FLSD Docket 04/05/2020 Page 2 of 3
DECLARATION OF DEONDRE WILLIS
I, Deondre Willis, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
1. My name is Deondre Willis. I am 24 years old. I am currently incarcerated at the Metro West Detention Center in Miami, Florida in cell 2C2. I have been in jail since late 2019.
2. I suffer from epilepsy and have had over 20 seizures in jail already. Every time I have a seizure, I feel weak and need to sleep the rest of the day. I’ve had to be transported to Jackson Hospital multiple times due to my seizures.
3. I know about coronavirus only because of the news and by talking to friends and family. We watch the news all day to try to get any information and guidance we can. Corrections doesn’t give us any information or instructions about it. They haven’t made any announcements. The most any officer has told us is to just wash our hands. I don’t even know if anyone in the jail has coronavirus. I heard that an officer in Turner Guilford Knight has it, but I don’t know if that’s true.
4. I feel like my life is in danger in here because of coronavirus. I hate being in here because I see and hear people coughing around me all day. There are constantly new people coming in and out of the jail -- officers, medical personnel, and new people coming in from the streets who are coming from Turner Guilford Knight -- and we are just here, trapped, and don’t even know if the people around us are infected.
5. I’m worried about how coronavirus is going to affect my epilepsy. I know if it gets over here, I won’t be able to protect myself from it because we’re all so close together and nothing is sanitary. And when I get afraid or too excited, that’s when I catch seizures.
6. The medical service here is so bad. Corrections only takes you out of the cell if it is really bad, like if someone has seizures. If we have another issue, like symptoms of coronavirus, you have to request to go to the medical wing. Even if you request to go to the medical wing, you have to put in a sick card and wait at least 2-3 days to hear back. Medical isn’t making people go down to get their temperatures taken. I saw a paper saying they’re only taking care of emergencies. They said if it isn’t serious, don’t write a sick card.
7. It is impossible to stay away from people in here even though I try as much as I can. I live in a cell with 68 people. I sleep right next to another person, probably about one foot away from the person beside me and one foot away from the person on the top. I sleep next to an old man who is more than 60 years old, and he just eats and coughs all day. I

Case 1:20-cv-21457-KMW Document 3-7 Entered on FLSD Docket 04/05/2020 Page 3 of 3
always tell him to cover his mouth and go to the doctor, but he won’t. He still hasn’t gone to the doctor, and no one has come up to check his temperature or to test him for the virus.
8. We all share six phones and one water cooler. There are 6-8 tables in the common area, which also has two televisions. Everyone uses the same remote. In the common areas, everyone uses the same cards and dominoes every day. Corrections made the trustees wipe everything in the cells down about two weeks ago, but that area hasn’t been cleaned since.
9. There are 6 toilets, and there are always lines of people waiting to use them. The bathrooms are never clean. There are only three working showers for 68 people, and two of the showers are boarded up. The bathroom floor is always filled with standing water, which is disgusting.
10. Phones aren’t cleaned. To use the phones, we wrap a shirt around the phone to protect ourselves. The trustees clean the cell at shift change and at that time, they spray down the phones. But, there are 60-70 men using the phones, so as soon as they clean it, people line up to use the phone back to back. That cleaning isn’t enough to keep all the common areas sanitized given the number of people who are constantly crowded together, using everything throughout the day.
11. We have to drink out of the same water cooler. I try to press it with my elbow, and we all drink out of that together. I hate touching the sinks in the bathroom, and I try to put a whole lot of toilet paper on the toilet before I use it, when toilet paper is available. We don’t have anything to protect ourselves, not even hand sanitizer. We don’t have toilet paper. We don’t have gloves. All they give us is a thin bar of soap. The laundry has been broken and was finally hooked back up today.
12. It’s very cold in here, so people walking around with their hands in their pants all day.
This declaration was orally sworn to by Deondre Willis on April 3, 2020 because the Metro West Detention Center is currently not permitting documents to be exchanged for signature.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Deondre Willis on April 3, 2020.
By: Maya Ragsdale Date: April 3, 2020

Case 1:20-cv-21457-KMW Document 3-8 Entered on FLSD Docket 04/05/2020 Page 1 of 4
EXHIBIT 5

Case 1:20-cv-21457-KMW Document 3-8 Entered on FLSD Docket 04/05/2020 Page 2 of 4
DECLARATION OF BAYARDO CRUZ
I, Bayardo Cruz, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
1. My name is Bayardo Cruz. I am 30 years old. I am currently incarcerated at the Metro West Detention Center in Miami, Florida in cell 2C2. I have been in jail since May 22, 2019.
2. I am in fear for my life due to coronavirus because I have moderate asthma and chronic bronchitis. Recently, I have had a dry cough. People are coughing around me all the time, and some people look like they’re really sick. There are no routine check-ups for anyone, and people who are coughing aren’t being tested or getting their temperatures taken to see if we’re carrying the virus. I am really scared.
3. Despite how bad the situation seems from the news, Corrections isn’t doing anything to protect us. They haven’t given us any guidelines or information about how to stay safe in these times. They haven’t made any announcements. The most they did was put a memo on the wall saying that court was cancelled and that there is mandatory yard time. Many people in the cell with me can’t read, so they can’t even understand these memos.
4. Corrections also hasn’t given us any information about whether anyone in Metro West has tested positive for coronavirus. When I asked officers if anyone has tested positive, they told me that no one in Metro West has been affected by the coronavirus. In general, they act like they don’t want to talk about it. But, I have heard rumors that there are entire cells in Metro West that are on quarantine without any access to commissary, because one of the inmates in the cell tested positive for coronavirus.
5. We live in very close quarters, which makes me especially concerned for my safety. There are more than 50 people who live in the cell with me. The way our cell is set up is like a small gymnasium with beds all along the outside with a 10 foot by 10 foot area in the middle. The bunks are side by side, only 1-2 feet away from the next bunk, and 2 feet away from the top bunk. The common area in the middle has two TVs (one in Spanish, one in English), and multiple tables and chairs. There are at least five people in front of each TV at all times, and people sit at the tables playing dominoes. We can’t get more than an arms-length of distance from other people at any time.
6. Given how packed my cell is, I can’t get distance from new inmates who are recently arrested and might have coronavirus. There are new people coming in and out constantly.

Case 1:20-cv-21457-KMW Document 3-8 Entered on FLSD Docket 04/05/2020 Page 3 of 4
We don’t know if new people coming in have it, or even if officers have it -- we have to be worried about them too. The courts are closed and they aren’t transporting us to hearings anymore. Yet, new people are coming into the cell every day. If they are going to stop transporting us out of the jail, they should stop transporting new people into the jail too.
7. In terms of our general safety, Corrections is doing nothing to protect us. Our cells aren’t sanitized. Corrections doesn’t hire janitorial staff to clean or sanitize the facility cells or hallways. They say that we have to clean our cells by ourselves. I am a trustee in the cell, meaning that I have been assigned to help keep our cell clean. I do the best I can with what I’m given, but the chemicals they provide for us are really watered down and don’t sanitize the areas we’re cleaning. We don’t have bleach. We don’t have face masks. I am scared and am trying to find the best way to protect myself and the people who I live with.
8. To get products that are actually hygienic, we have to buy them. People who don’t have money for commissary get one hygiene pack per month, which includes a small soap that doesn’t sanitize, one pen, one envelope, one stamp, one deodorant that doesn’t work, and one comb. They don’t provide us with anything to protect ourselves such as gloves, face masks, or hand sanitizer, and these items aren’t available through commissary either. They started to give us more state soap recently, which aren’t antibacterial. I have to spend about $30/week to order my personal hygiene products, including antibacterial soap.
9. On top of that, we share just a few toilets, sinks, and showers between more than 50 people. There are ten open toilets in the back, but two are broken. There are seven phones, but one is broken. Each time I use a phone, I put a sock over it because phones aren’t cleaned between each use. There are three showers for all of us. There should be five showers, but two are boarded up (and have been for the entire time I’ve been in this cell). There is usually a line of at least 6 people waiting to use the showers, standing right next to each other. The showers aren’t cleaned between uses, and they’re dirty. The only time they’re clean is for the first person who uses them. You never know what the person who was in the shower before you was carrying.
10. We all get water from the same small water cooler, where you have to press a button in order for the water to come out. That button is always dirty, and so I try to protect myself by putting my shirt over my finger before I touch it.

Case 1:20-cv-21457-KMW Document 3-8 Entered on FLSD Docket 04/05/2020 Page 4 of 4
11. Our laundry machine is broken, so we have been hand washing our clothes using the state soap, which is not antibacterial. We were told they put a work order in, but in my experience, things take at least a month to get repaired.
12. On top of that, the ventilation in the cell is bad. The air is really dusty. The filters are dirty, and the floors are always dusty. I have never seen maintenance clean the filters or change them.
13. They do pat downs of us when we come back to the cell after rec time, but don’t change gloves between touching each person.
14. I am trying to take as many precautions as I can to protect myself and others around me, but there is only so much I can do.
15. I attempted to file a grievance on April 1, 2020, but Corrections said they did not have any forms. I asked them to talk to a corporal outside, but they said they didn’t have one either.
16. This is a serious situation and I hope somebody takes this matter into their hands.
This declaration was orally sworn to by Bayardo Cruz on April 3, 2020 because the Metro West Detention Center is currently not permitting documents to be exchanged for signature.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Bayardo Cruz on April 3, 2020.
By: Maya Ragsdale Date: April 3, 2020

Case 1:20-cv-21457-KMW Document 3-9 Entered on FLSD Docket 04/05/2020 Page 1 of 4
EXHIBIT 6

Case 1:20-cv-21457-KMW Document 3-9 Entered on FLSD Docket 04/05/2020 Page 2 of 4
DECLARATION OF RONNIEL FLORES
I, Ronniel Flores, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
1. My name is Ronniel Flores. I am 23 years old. I am currently incarcerated at the Metro West Detention Center in Miami, Florida in cell 2C2. I have been in jail since January 12, 2020.
2. I have asthma and Type 1 diabetes. Per my jail schedule, I am supposed to get insulin shots at 4 a.m. and 4 p.m., but my blood sugar has been all over the place since I’ve been incarcerated. It’s been spiking to more than 600. The medical staff at the jail has been totally unconcerned. When my insulin spikes, I’ve been told by nurses to go back to my cell because it’s not time for my shot. If I were not incarcerated, I would have insulin available to me at all times. Without insulin, I could go into a diabetic coma.
3. Since the coronavirus outbreak, I have been too worried to go to some of my 4 a.m. insulin sessions because the clinic is so crowded at that time with diabetics from everywhere in the jail. All the diabetics are supposed to go to the clinic at the same time, and everyone is crowded into the same small room as we wait to get our shots. We aren’t given masks or gloves, and I can’t get far enough away from people to stay safe. We sit right next to other inmates, side by side. Nurses do not take our temperature when we go to the clinic to manage our diabetes.
4. I started having difficulty breathing on Monday, March 30th. I put in a doctor’s request, but it takes 2-3 days before someone even sees the request, and in my experience, it usually takes a week before I’ll actually be called down to see anyone in the clinic. Today, which is Friday, April 3, I still haven’t been called down to see the nurse. No one is taking our temperatures in the cell or doing any other kind of testing. The last time I had my temperature taken was when I saw a doctor two months ago. That is the only time my temperature has ever been taken.
5. Every day, there are new people added to my cell who have come in from Turner Guilford Knight, which is where people are processed when they first get arrested, and a lot of them are coughing. I’ve asked them whether they were tested before they were transferred to Metro West and they told me that they haven’t been. There are also a lot of new officers in the cell. Before coronavirus, there used to be the same guards in our cells every day. Now, new officers come into my cell who I am not familiar with. Any one of the people who come in and out of our cell could bring the virus in and there’s nothing we can do to protect against it.

Case 1:20-cv-21457-KMW Document 3-9 Entered on FLSD Docket 04/05/2020 Page 3 of 4
6. My cell is so crowded that it feels like a health hazard. There is no way for me to stay away from other people, even though I try. There are about 65 people who live in the cell with me. The beds are about an arms-length away from each other. Today, Corrections put up a sign saying that we should sleep head to foot instead of head to head, which still doesn’t leave 6 feet of space away from each other. There are tables in a small common area inside of the dorm, where people sit right next to each other. People are also crammed together during rec time outside, where we play basketball.
7. We have to share everything in here. There are 7 phones in our unit, shared between all 65 of us. The phones are cleaned once at night. It isn’t safe to touch those phones, so I put a sock over the phones every time I use them to protect myself. We share showers, toilets, and sinks. None of the things that we share are cleaned between uses, and anyways, Corrections doesn’t clean, they have inmates clean with watered down products.
8. We don’t have any of the cleaning products necessary to protect ourselves from the coronavirus. We don’t have real soap. We don’t have hand sanitizer. We don’t have paper towels. We’re out of toilet paper. The laundry machine is broken, so we have to wash our clothes by hand with state soap. Yet, there are so many things around us that could transmit infection, because they are constantly touched by other people in here, like the TV remote and the button to get water from the water cooler. I have never seen those things cleaned, and so I use my uniform to press those buttons.
9. Corrections doesn’t give us any information about the coronavirus, not even telling us if other people in the jail have tested positive for the virus. I heard that the third floor is on quarantine and one entire unit has been shut down. I also heard that three officers in TGK have it.
10. We’re stuck in here without protection.
This declaration was orally sworn to by Ronniel Flores on April 3, 2020 because the Metro West Detention Center is currently not permitting documents to be exchanged for signature.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Ronniel Flores on April 3, 2020.
By: Maya Ragsdale

Case 1:20-cv-21457-KMW Document 3-9 Entered on FLSD Docket 04/05/2020 Page 4 of 4 Date: April 3, 2020

Case 1:20-cv-21457-KMW Document 3-10 Entered on FLSD Docket 04/05/2020 Page 1 of 4
EXHIBIT 7

Case 1:20-cv-21457-KMW Document 3-10 Entered on FLSD Docket 04/05/2020 Page 2 of 4
DECLARATION OF PETER BERNAL
I, Peter Bernal, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
1. My name is Peter Bernal. I am 35 years old. I’m a single father of two. I am currently incarcerated at the Metro West Detention Center in Miami, Florida in cell 1D3. I have been in jail since February 2, 2020.
2. I am writing this declaration to express my fear of the pandemic that is affecting us all, but particularly those of us who are incarcerated in jails in Miami-Dade County. I am writing as an inmate who is diagnosed with chronic asthma, which causes severe respiratory problems. As such, I am at high risk if I come into contact with the coronavirus.
3. I feel that I am in a petri dish for growth and contamination.
4. My declaration is based on my current knowledge of the coronavirus. It is important for me to note that my information is entirely based on what is being said on television and conversations with my loved ones outside. The Department of Corrections has not educated us sufficiently about the coronavirus or how to take precautions. When I ask correctional officers about the virus, they give me excuses about why they can’t answer, including that they are not permitted to tell us. I haven’t been told whether there are confirmed cases of coronavirus in the facility. I heard rumors that there were positive cases that were identified in Metro West, and that entire cells are on quarantine in the facility. We don’t know why they’re in quarantine -- I just heard that someone saw a sign on the door that says “quarantine.”
5. We as inmates do not have access to the medical care that is required to keep us safe. Corrections isn’t taking steps to test anyone or take people’s temperatures, even when people are displaying symptoms. We need to have our temperatures taken consistently and for people who are confined in our cells to be tested. It’s scary for us because there are people coming in from the outside who are coughing in our confined environment where there is no air circulation. Air filters in the cell aren’t changed.
6. There are people coming into the cell constantly who place us at risk. Nurses and correctional officers come from the outside, and oftentimes aren’t even wearing gloves or masks. When they are, they don’t change their gloves or masks when entering from another cell.

Case 1:20-cv-21457-KMW Document 3-10 Entered on FLSD Docket 04/05/2020 Page 3 of 4
7. I’ve been seeing a lot of people who are coughing in the cell. If we [people who are incarcerated] see someone coughing, we tell them to fill out a medical request form. When people do fill out a request form and go to the medical unit, they report back and tell us they were just given a pill as part of a cold pack with no testing.
8. Last week, I felt irritation in the back of my throat, so I filled out a request. Usually, it takes two to three days to be seen, but with everything going on with the coronavirus, it’s been taking longer than usual. When I finally was called down to the clinic, they didn’t take my temperature. They just gave me tylenol as part of a cold pack. They didn’t administer any tests.
9. As an in-cell trustee, I see how it is impossible to sanitize the cell. We lack cleaning supplies and equipment. It is difficult to get detergents to clean and to get equipment to clean up with, like mop heads and mop sticks. There is also a shortage of gloves. Sometimes we get gloves, sometimes we don’t. We try as much as we can not to reuse gloves but we can’t help it because of the shortage. When we have to reuse gloves, all we’re doing is carrying bacteria around.
10. Part of my duties as a trustee is to serve food. Food is transported from different facilities without proper sanitation. Sometimes we are being told to serve food without gloves, which means that we are required to open the trays and check the food in them with our bare hands. For example, on February 31, 2020 at around 3:40 pm, one of the officers came into the cell as we were receiving our dinner trays to pass out. He informed us quietly that they were out of gloves, but told us that we needed to keep preparing the trays. I prepared the trays with my bare hands.
11. When I’m not doing my duties as a trustee, I stay in my bunk to try to avoid contact with other people, but it is impossible to practice social distancing. The cell is set up as a day room, and the bunks are lined up around the wall. There is about two feet between bunks. The person who sleeps on top of you in the bunk bed is about three feet away from you. Correctional officers have a paper sign up saying to sleep opposite of the person next to you, but even following that procedure does not allow us to have six feet of distance.
12. According to an Inside Edition Report I saw on television, when someone coughs or sneezes, their mucus could travel up to four feet. Despite the fact that there are 32 people in my cell instead of the usual 60-70 people, we still can’t maintain more than a couple of feet of distance from each other. In order to maintain the proper distance of six feet, there

Case 1:20-cv-21457-KMW Document 3-10 Entered on FLSD Docket 04/05/2020 Page 4 of 4
would have to be a maximum of 15 people in our cell at a time. Why doesn’t the social distancing that people are urged to practice outside not apply to inmates?
13. We share everything in here. Where we drink water from, an orange water cooler, is touched by every inmate without being able to sanitize it between uses. There is a very small common area in the middle of the cell. In the common areas where we sit, we are unable to sanitize it due to lack of supplies and chemicals. The limited number of phones we share aren’t cleaned between each use.
14. I have tried to fill out grievances, but I haven’t been able to because of the lack of grievance forms in my cell. We get grievance forms from our counselor, who appears between one and three times a week. When the counselor comes and we ask him for grievances, he just says that “I’m working on it, I’m working on it” and then does not provide the grievance forms.
15. I feel worried because at least when you’re out there, you can control your diet which is really important. I’m a chef and I make sure I cook foods that keep me healthy and help with my immune system. In here, the food is unhealthy.
16. I firmly believe that we as inmates are not being protected adequately. We are not given the same chance to prevent contamination and avoid spreading the virus as people outside are. I cannot express enough how scary this experience has been for me.
17. I am writing this declaration not only to raise awareness but to be given the same fair chance of surviving this pandemic that is affecting everyone worldwide. As a firm believer that all lives are equal, I am begging for the Department of Corrections to take action to protect us.
This declaration was orally sworn to by Peter Bernal on April 4, 2020 because the Metro West Detention Center is currently not permitting documents to be exchanged for signature.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Peter Bernal on April 4, 2020.
By: Maya Ragsdale Date: April 4, 2020

Case 1:20-cv-21457-KMW Document 3-11 Entered on FLSD Docket 04/05/2020 Page 1 of 4
EXHIBIT 8

Case 1:20-cv-21457-KMW Document 3-11 Entered on FLSD Docket 04/05/2020 Page 2 of 4

Director Daniel Junior (786) 263-6010 In Facilities Inmate Population: 3,927 Total Inmates Booked: 138

Miami-Dade County Corrections and Rehabilitation Department
Daily Jail Population Statistics Data for: Tuesday, February 25, 2020
Outside Facilities Inmate Population: 941

Inmates by Gender

MALE 4,433

FEMALE 435

Inmates by Age Range
Age Range

1,620 1,019 1,069

17 and un... 18 - 24 25 - 34 35 - 44 45 - 54 55 +

622 510

28

Inmates by Primary Offense

4,409

332 57 70

Felony Misdemeanor Hold\No MDC Chrgs Traffic

Mayor Carlos A. Gimenez Total Inmates Supervised: 4,868
Total Inmates Released: 149 Total Inmates In Jail During Feb 25, 2020: 5,017
Inmates by Charge Status

3,703

Partial Sentence Sentenced Unsentenced

673 492

Average Daily Population (ADP) Over the Last 180 Days: 3,992

Average Length of Stay (ALOS) Over the Last 180 Days: 36.05

Top 12 Inmates with the Longest Length of Stay (In Days)

LOS JAIL NUMBER LAST NAME FIRST NAME RACE GENDER

HIGHEST OFFENSE

5,496 050010740 MANGHAM DANYAN

B

M MURDER 1ST DEGREE

5,122 060013544 LAWSON LARRY

B

M MURDER 1ST DEGREE

4,710 070029579 SULET

LEMAY

W

M MURDER 1ST DEGREE

4,521 070088206 CHARLES JOHNNY

B

M MURDER 1ST DEGREE

4,443 070113502 CADET

BENSON

B

M MURDER 1ST DEGREE

4,367 080022681 DANIEL

MAX

B

M MURDER 1ST DEGREE

3,830 090074528 BROWN

STEVIE

B

M MURDER 1ST DEGREE

3,713 090108604 MARTIN

GREGORY

B

M MURDER 1ST DEGREE

3,694 100003323 BROWN

WILLIAM

B

M MURDER 1ST DEGREE

3,631 100021756 JULMICE

LEOPOLE

B

M BURGLARY/ASSLT/ARMED

3,279 110015993 BARAHONA CARMEN

W

F

MURDER 1ST DEGREE

3,261 110020445 BARAHONA JORGE

W

M MURDER 1ST DEGREE

Length of Stay in Years/Months for Inmates Under Supervision

LOS in Years/Months

# of Inmates

LOS > 4 years

99

LOS > 3 years and LOS <= 4 years

125

LOS > 2 years and LOS <= 3 years

263

LOS > 18 months and LOS <= 24 months

276

LOS > 12 months and LOS <= 18 months

450

LOS > 9 months and LOS <= 12 months

360

LOS > 6 months and LOS <= 9 months

555

LOS > 3 months and LOS <= 6 months

838

LOS > 2 months and LOS <= 3 months

363

LOS > 1 month and LOS <= 2 months

486

LOS <= 1 month

1,053

Total:

4,868

Average Daily Population (ADP) now counts In-Custody Defendants only. Average Length of Stay (ALOS) counts all defendants, who have been released during the past 180 days, and totals the length of stay they have been in custody.

Case 1:20-cv-21457-KMW Document 3-11 Entered on FLSD Docket 04/05/2020 Page 3 of 4

Director Daniel Junior (786) 263-6010 In Facilities Inmate Population: 3,927 Total Inmates Booked: 138

Miami-Dade County Corrections and Rehabilitation Department
Daily Jail Population Statistics Data for: Tuesday, February 25, 2020
Outside Facilities Inmate Population: 941

Mayor Carlos A. Gimenez Total Inmates Supervised: 4,868
Total Inmates Released: 149 Total Inmates In Jail During Feb 25, 2020: 5,017

2,400 2,000 1,600

In Custody Inmate Population by Facility

2,061

TGKCC PTDC Hosp PTDC MWDC Boot Camp

1,200 774
800

1,051

400

5

36

0

Daily Bookings for the Past 4 Months
230 210 190 170 150 130 110
90 70 50
10-27 11-02 11-08 11-14 11-20 11-26 12-02 12-08 12-14 12-20 12-26 01-01 01-07 01-13 01-19 01-25 01-31 02-06 02-12 02-18 02-24 Booking Date (mm-dd)

Out of Facilities Inmate Population

900

800

782

PTDC Wknder

PTDC Loan

PTDC Furlough

700

TGKDC Wknder

600

TGKDC Loan

TGKCC Furlough

500

Mon. Release

Boot Camp III

400

300

200

100

78

63

6146

1

0

Daily Releases for the Past 4 Months
230 210 190 170 150 130 110
90 70 50
10-27 11-02 11-08 11-14 11-20 11-26 12-02 12-08 12-14 12-20 12-26 01-01 01-07 01-13 01-19 01-25 01-31 02-06 02-12 02-18 02-24 Release Date (mm-dd)

Inmate Count Inmate Count

Case 1:20-cv-21457-KMW Document 3-11 Entered on FLSD Docket 04/05/2020 Page 4 of 4

Director Daniel Junior (786) 263-6010

Miami-Dade County Corrections and Rehabilitation Department
Daily Jail Population Statistics Data for: Tuesday, February 25, 2020

Mayor Carlos A. Gimenez

In Facilities Inmate Population: 3,927 Total Inmates Booked: 138

Outside Facilities Inmate Population: 941

Total Inmates Supervised: 4,868 Total Inmates Released: 149
Total Inmates In Jail During Feb 25, 2020: 5,017

3,200 2,800 2,400 2,000 1,600 1,200
800 400
0

2,964

Men: 4,433 91%
Classification/Charge Status
Felony - Partially Sentenced Felony - Sentenced Felony - Unsentenced Hold/No MDC Charges - Unsentenced Misdemeanor - Partially Sentenced Misdemeanor - Sentenced Misdemeanor - Unsentenced Traffic - Unsentenced

630 433

276

55 5 12

58

Women: 435 9%

320

298

280

240

200

160

Classification/Charge Status
Felony - Partially Sentenced Felony - Sentenced Felony - Unsentenced Hold/No MDC Charges - Unsentenced Misdemeanor - Sentenced Misdemeanor - Unsentenced Traffic - Unsentenced

120

80 38 46
40
0

38

21

12

Demographics based on Arrest Affidavit Information

Hispanic Non-Hispanic
Unknown Totals:

Female
133 212
90
435

Male
1,500 2,035
898
4,433

Totals 1,633 2,247
988 4,868

Race based on Arrest Affidavit information

American Indian Asian Black
Unknown White Totals:

Female
0 0 207 0 228
435

Male
2 7 2,361 1 2,062
4,433

Totals 2 7
2,568 1
2,290 4,868

Case 1:20-cv-21457-KMW Document 3-12 Entered on FLSD Docket 04/05/2020 Page 1 of 4
EXHIBIT 9

Case 1:20-cv-21457-KMW Document 3-12 Entered on FLSD Docket 04/05/2020 Page 2 of 4

Director Daniel Junior (786) 263-6010 In Facilities Inmate Population: 3,383 Total Inmates Booked: 59

Miami-Dade County Corrections and Rehabilitation Department
Daily Jail Population Statistics Data for: Friday, April 3, 2020
Outside Facilities Inmate Population: 1,063

Inmates by Gender

MALE 4,084

FEMALE 362

Inmates by Age Range
Age Range

1,459

17 and un... 18 - 24

952 984

25 - 34 35 - 44 45 - 54 55 +

577 452

22

4,152

Inmates by Primary Offense

43 212 39

Felony Misdemeanor Hold\No MDC Chrgs Traffic

Mayor Carlos A. Gimenez Total Inmates Supervised: 4,446
Total Inmates Released: 80 Total Inmates In Jail During Apr 3, 2020: 4,526
Inmates by Charge Status

3,393

Partial Sentence Sentenced Unsentenced

654 399

Average Daily Population (ADP) Over the Last 180 Days: 3,854

Average Length of Stay (ALOS) Over the Last 180 Days: 36.82

Top 12 Inmates with the Longest Length of Stay (In Days)

LOS JAIL NUMBER LAST NAME FIRST NAME RACE GENDER

HIGHEST OFFENSE

5,160 060013544 LAWSON LARRY

B

M MURDER 1ST DEGREE

4,748 070029579 SULET

LEMAY

W

M MURDER 1ST DEGREE

4,559 070088206 CHARLES JOHNNY

B

M MURDER 1ST DEGREE

4,481 070113502 CADET

BENSON

B

M MURDER 1ST DEGREE

4,405 080022681 DANIEL

MAX

B

M MURDER 1ST DEGREE

3,868 090074528 BROWN

STEVIE

B

M MURDER 1ST DEGREE

3,751 090108604 MARTIN

GREGORY

B

M MURDER 1ST DEGREE

3,732 100003323 BROWN

WILLIAM

B

M MURDER 1ST DEGREE

3,669 100021756 JULMICE

LEOPOLE

B

M BURGLARY/ASSLT/ARMED

3,317 110015993 BARAHONA CARMEN

W

F

MURDER 1ST DEGREE

3,299 110020445 BARAHONA JORGE

W

M MURDER 1ST DEGREE

3,201 110045303 ROBINSON JAVON

B

M MURDER 1ST DEGREE

Length of Stay in Years/Months for Inmates Under Supervision

LOS in Years/Months

# of Inmates

LOS > 4 years

107

LOS > 3 years and LOS <= 4 years

127

LOS > 2 years and LOS <= 3 years

266

LOS > 18 months and LOS <= 24 months

288

LOS > 12 months and LOS <= 18 months

466

LOS > 9 months and LOS <= 12 months

368

LOS > 6 months and LOS <= 9 months

585

LOS > 3 months and LOS <= 6 months

760

LOS > 2 months and LOS <= 3 months

365

LOS > 1 month and LOS <= 2 months

495

LOS <= 1 month

619

Total:

4,446

Average Daily Population (ADP) now counts In-Custody Defendants only. Average Length of Stay (ALOS) counts all defendants, who have been released during the past 180 days, and totals the length of stay they have been in custody.

Case 1:20-cv-21457-KMW Document 3-12 Entered on FLSD Docket 04/05/2020 Page 3 of 4

Director Daniel Junior (786) 263-6010 In Facilities Inmate Population: 3,383 Total Inmates Booked: 59

Miami-Dade County Corrections and Rehabilitation Department
Daily Jail Population Statistics Data for: Friday, April 3, 2020
Outside Facilities Inmate Population: 1,063

Mayor Carlos A. Gimenez Total Inmates Supervised: 4,446
Total Inmates Released: 80 Total Inmates In Jail During Apr 3, 2020: 4,526

2,000 1,600 1,200

In Custody Inmate Population by Facility

1,820

TGKCC PTDC Hosp PTDC MWDC Boot Camp

957

1,000 800 600

Out of Facilities Inmate Population

912

PTDC Wknder

PTDC Loan

PTDC Furlough

TGKDC Wknder

TGKDC Loan

Mon. Release

Boot Camp III

800

400

571

400

1

34

0

Daily Bookings for the Past 4 Months
230 210 190 170 150 130 110
90 70 50
12-05 12-11 12-17 12-23 12-29 01-04 01-10 01-16 01-22 01-28 02-03 02-09 02-15 02-21 02-27 03-04 03-10 03-16 03-22 03-28 04-03 Booking Date (mm-dd)

200

76

61

7 12 4

0

Daily Releases for the Past 4 Months
230 210 190 170 150 130 110
90 70 50
12-05 12-11 12-17 12-23 12-29 01-04 01-10 01-16 01-22 01-28 02-03 02-09 02-15 02-21 02-27 03-04 03-10 03-16 03-22 03-28 04-03 Release Date (mm-dd)

Inmate Count Inmate Count

Case 1:20-cv-21457-KMW Document 3-12 Entered on FLSD Docket 04/05/2020 Page 4 of 4

Director Daniel Junior (786) 263-6010

Miami-Dade County Corrections and Rehabilitation Department
Daily Jail Population Statistics Data for: Friday, April 3, 2020

Mayor Carlos A. Gimenez

In Facilities Inmate Population: 3,383 Total Inmates Booked: 59

Outside Facilities Inmate Population: 1,063

Total Inmates Supervised: 4,446 Total Inmates Released: 80
Total Inmates In Jail During Apr 3, 2020: 4,526

3,200 2,800 2,400 2,000 1,600 1,200
800 400
0

2,837

Men: 4,084 92%
Classification/Charge Status
Felony - Partially Sentenced Felony - Sentenced Felony - Unsentenced Hold/No MDC Charges - Unsentenced Misdemeanor - Partially Sentenced Misdemeanor - Sentenced Misdemeanor - Unsentenced Traffic - Unsentenced

618 362

185

37 3 7

35

Women: 362 8%

280

273

240

200

160

Classification/Charge Status
Felony - Partially Sentenced Felony - Sentenced Felony - Unsentenced Hold/No MDC Charges - Unsentenced Misdemeanor - Sentenced Misdemeanor - Unsentenced Traffic - Unsentenced

120

80

40

33 29

0

2 1 16 8

Demographics based on Arrest Affidavit Information

Hispanic Non-Hispanic
Unknown Totals:

Female
110 176
76
362

Male
1,375 1,863
846
4,084

Totals 1,485 2,039
922 4,446

Race based on Arrest Affidavit information

American Indian Asian Black
Unknown White Totals:

Female
1 0 187 0 174
362

Male
3 5 2,189 1 1,886
4,084

Totals 4 5
2,376 1
2,060 4,446

Case 1:20-cv-21457-KMW Document 3-13 Entered on FLSD Docket 04/05/2020 Page 1 of 4
EXHIBIT 10

Case 1:20-cv-21457-KMW Document 3-13 Entered on FLSD Docket 04/05/2020 Page 2 of 4
DECLARATION OF JACQUELINE EBERT
I, Jacqueline Ebert, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
1. My name is Jacqueline Ebert. I am an attorney licensed to practice before the courts of the State of Florida.
2. On March 31, 2020, I participated in a visit to the Metro West Detention Center and interviewed four people incarcerated in the jail. I had to bring my own gloves and mask to protect myself during the visit, and another attorney who was conducting interviews brought a clean sock for me to cover the telephone with, because we did not know when the last time it was sanitized. A different attorney provided me with a wet wipe to additionally wipe off the phone.
3. I spent approximately four hours interviewing individuals held at the jail. During the course of these interviews I observed officers and Metro West Detention Center staff. The majority of staff members were not wearing gloves or face masks. I did not observe them practicing social distancing.
4. During the course of my interviews I spoke with four different individuals. All four individuals used the same phone to speak with me. During the course of my interviews, neither the phone nor the area in which interviewees were sitting was ever cleaned with sanitation products.
5. Every person I spoke with mentioned that there was no testing of COVID-19 being done, no masks available for those who are incarcerated, and no hand sanitizer available.
6. Several of the individuals I interviewed stated that there were entire cells on quarantine. They said they knew this because there was a “Quarantine” sign posted on the cell door. No one knew exactly how many people were being held in the quarantined cells, but one individual estimated there were well over 50 people in the unit.
7. One of the individuals I interviewed stated he has had a cough for a couple of weeks and that several other men in his cell have coughs as well. He stated there are over 50 people in his unit. He stated that their temperatures are not being taken nor have they received tests for COVID-19.
8. The individuals I spoke with said that new people entering the jail are not being tested for COVID-19.

Case 1:20-cv-21457-KMW Document 3-13 Entered on FLSD Docket 04/05/2020 Page 3 of 4
9. Each individual I spoke with stated a different protocol or procedure for cleaning the cells. When I asked one individual who is a head trustee and in charge of overseeing the cleaning of his cell if they had access to bleach, he told me no. He stated that they used a cleaning chemical that had been watered down to clean the unit. He told me​ they are given gloves to clean but lately they have been asked to save and reuse gloves because of shortages.
10. The individuals I spoke with mentioned that life was continuing in a way that prevented social distancing in the cell. They mentioned that people were still playing basketball during recreation time, that people were still sitting together to eat meals, and people play cards and checkers together.
11. Several of the individuals I spoke with specifically mentioned that the air filters in the jail had not been changed for some time and that this was concerning to them.
12. Every individual I spoke with expressed fear about the spread of COVID-19 in the jail and stated that those in their cells who are elderly or have underlying health conditions are extremely concerned about an outbreak in the jail.
13. Every individual I spoke with stated that they are not six feet apart from other people while they sleep. At the time of my interviews, the interviewees were sleeping head to head with those in the neighboring beds.
14. During the course of my interviews all the individuals I spoke with stated that many guards did not wear masks and gloves while in the cells.
15. All the of the people I spoke with advised that they were not getting clear information about what was happening with the coronavirus and what they could do to protect themselves while in jail. Some of the individuals noted that the most information they were getting was from the news.
16. The people I spoke with stated that phones were not disinfected between each use.
17. I interviewed an elderly man who had multiple respiratory issues. He expressed extreme concern about COVID-19 given his age and underlying health conditions. He currently has an inhaler but has been trying to get an appointment with the doctor since he entered the jail to get access to a breathing machine, which he needs. He has made three requests to see the doctor, who he is required to see in order to have access to the machine, but he has only been granted access to the nurses.

Case 1:20-cv-21457-KMW Document 3-13 Entered on FLSD Docket 04/05/2020 Page 4 of 4
18. The individuals only have a small bar soap, which is not antibacterial, available for washing their hands and taking showers. They do not have access to paper towels to dry their hands after they wash them.
19. One of the individuals I spoke with explained that he puts a sock on the phone when he uses it because the phones are not being cleaned.
20. I interviewed a man in his 20s who has diabetes and who requires insulin. He told me that they gather all of the people with diabetes in the clinic at the same time to give them insulin. He told me that he has skipped getting insulin on several days because he was so scared to be in the crowded clinic because of fear of getting COVID-19. He told me his sugar has spiked above 600 while he has been held. This individual told me the only time his temperature has been taken since he entered the jail was approximately 2 months ago, when he was meeting with the doctor. This individual is extremely scared of getting COVID-19 because of his diabetes.
21. Several of the individuals I spoke with mentioned that there had been temporary toilet paper shortages at which point they were not provided with their own roll of toilet paper, as usual, and as a result were required to ask other individuals to share toilet paper until more was provided.
22. One of the individuals I spoke with specifically mentioned he had never seen the remote for the television or the button used to get water from the water cooler cleaned.
23. The people I spoke to all mentioned that there was no testing, no masks provided for those incarcerated, and infrequent cleaning of the cells. All noted multiple people coughing in cells that held between 46-56 people. Three of the four people I interviewed told me that they had heard that some people were in quarantine.
24. Several of the individuals I interviewed mentioned that the officers act as if those being held are the ones that could infect them.
Under penalties of perjury, I declare that the statement above is true.
Jacqueline Ebert Date: April 4, 2020

Case 1:20-cv-21457-KMW Document 3-14 Entered on FLSD Docket 04/05/2020 Page 1 of 31
EXHIBIT 11

Case 1:20-cv-21457-KMW Document 3-14 Entered on FLSD Docket 04/05/2020 Page 2 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION

ANTHONY SWAIN; ALEN BLANCO; BAYARDO CRUZ; RONNIEL FLORES; WINFRED HILL; DEONDRE WILLIS; PETER BERNAL, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
DANIEL JUNIOR, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department; MIAMIDADE COUNTY, FLORIDA,
Defendants

Case No. _1:20-cv-21457 (Class Action)

Declaration of Dr. Pedro J. Greer, Jr.
I. Background and Qualifications
1. My name is Pedro J. Greer, Professor of Medicine, Founding Chair of Humanities, Health, and Society and Associate Dean for Community Engagement at Florida International University Herbert Wertheim College of Medicine (FIU HWCOM) in Miami, Florida. Throughout my career, I have been an advocate for health equity by engaging communities to create effective health and social policies and accessible health care systems.
2. I have worked for the past 36 years as a physician, from Resident to Internist, Gastroenterologist and Hepatologist, Department Chair and Associate Dean.
3. My bio, attached as Exhibit A, includes a brief description of my education and relevant experience.
4. My C.V. includes a full list of my honors, experience, and publications, and it is attached as Exhibit B.
1

Case 1:20-cv-21457-KMW Document 3-14 Entered on FLSD Docket 04/05/2020 Page 3 of 31
5. I am donating my time reviewing materials and preparing this report. Any live testimony I provide will also be provided pro bono.
6. I have testified as an expert at trial or by deposition in the past four years, in a federal case involving homeless sex offenders.
7. This declaration is similar to a sworn declaration submitted by Dr. Jaimie Meyer, Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut, in federal court in New York. Dr. Meyer is board certified in Internal Medicine, Infectious Diseases and Addiction Medicine.
8. I have reviewed Dr. Meyer’s report, and the sources cited in it. Based on my own independent training, expertise, and experience in epidemiology and infectious diseases, I strongly agree with Dr. Meyer’s analysis of the dangers that the novel corona posed in New York City-area jails, and believe that they are applicable, as described below, to Miami-Dade County’s Metro West Detention Center.
II. Heightened Risk of Epidemics in Jails and Prisons
9. As I will discuss below, the risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of multiple risks of transmission and exposure to individuals who become infected.
10. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. People often need to be transported to and from facilities to attend court and move between facilities. Prison health is public health.
11. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater. When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
2

Case 1:20-cv-21457-KMW Document 3-14 Entered on FLSD Docket 04/05/2020 Page 4 of 31
12. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and staff.
13. Reduced prevention opportunities: During an infectious disease outbreak, people can protect themselves by washing hands. Jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcoholbased sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons because of a lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
14. Reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and illequipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak.
15. Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.1 This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.
16. Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24-hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large outbreaks of infectious diseases. To prevent transmission of dropletborne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other
1 Active case finding for communicable diseases in prison, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
3

Case 1:20-cv-21457-KMW Document 3-14 Entered on FLSD Docket 04/05/2020 Page 5 of 31
conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes both containing the illness and caring for those who have become infected much more difficult.
17. Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, and medications.
18. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
19. Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited.
20. Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public. Furthermore, rapid spread of infectious diseases among the inmates can often worsen the epidemic outside of the incarcerated population because staff are more likely to be infected and spread the disease to their families and the wider population.
21. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.2 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.3 Even facilities on “quarantine” continued to accept new
2 Influenza Outbreaks at Two Correctional Facilities—Maine, March 2011, Centers for Disease Control and Prevention (2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 3 David. M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-flu-widespread-in-prisons-and-jails-but-deathsare-few/.
4

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intakes, rendering the quarantine incomplete. These scenarios occurred in the “best case” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
III. Profile of COVID-19 as an Infectious Disease4
22. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but recent data from China has demonstrated that almost 13% of transmission occurs from asymptomatic individuals before they start to show symptoms, and it is possible that transmission can occur for weeks after their symptoms resolve.5 In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for over a year to the general public. Antiviral medications are currently in testing but not yet FDA-approved. People in prison and jail will likely have even less access to these novel health strategies as they become available.
23. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.6 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.7 Among those individuals, the risk of poor outcomes, included the need for mechanical intervention is over 20%. Death in COVID-19 infection is usually due to pneumonia, and sepsis, and would occur between approximately 1-4% of the population. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due
4 This whole section draws from Broks J. Global Epidemiology and Prevention of COVID19, COVID-10 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www.ncchc.org/blog/covid-19-coronavirus-what-you-need-toknow-in-corrections. 5 Du Z, Xu X, Wu Y, Wang L, Cowling BJ, Ancel Meyers L. Serial interval of COVID-19 among publicly reported confirmed cases. Emerg Infect Dis. 2020 Jun [date cited]. https://doi.org/10.3201/eid2606.200357 6 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/summary.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fsummary.html. 7 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study, The Lancel (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext.
5

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to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.
24. The care of people who are infected with COVID-19 depends on how seriously they are ill.8 People with mild symptoms may not require hospitalization but may continue to be closely monitored at home. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID19 becomes more widespread in communities.
25. In order to prevent overwhelming the local health systems, aggressive containment and COVID-19 prevention is of utmost importance. To this end, certain states and jurisdictions, including Miami-Dade County have mandated COVID-19 prevention strategies, such as “shelter in place” or “stay at home” orders, which have gone beyond containment and mitigation. Jails and prisons already have difficulty with containment because it requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. However, even with these efforts, it is nearly impossible for jails and prisons to provide the atmosphere of “shelter in place” or “stay at home” social distancing, given the number of individuals that work in and are housed in these facilities in the current system.
26. The time to act is now. Data from other settings demonstrate what happens when jails and prisons are unprepared for COVID-19. News outlets reported that Iran temporarily released 70,000 prisoners when COVID-19 started to sweep its facilities.9 To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in place.10 Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and potentially transmit the virus to others.
IV. Risk of COVID-19 in the Metro West Detention Center
8 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2002), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html. 9 Iran temporarily releases 70,000 prisoners as coronavirus cases surge, Reuters (March 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases-70000-prisoners-ascoronavirus-cases-surge-idUSKBN20W1E5. 10 Luke Barr & Christina Carrega, State prisons prepare for coronavirus but federal prisons not providing significant guidance, sources say, ABC News (March 11, 2020), https://abcnews.go.com/US/state-prisons-preparecoronavirus-federal-prisons-providing-significant/story?id=69433690.
6

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27. In preparing this report I have reviewed the declarations of the Plaintiffs in this case.
28. Based on my review of the relevant literature, and my review of the Plaintiffs’ declarations it is my professional judgment that the Metro West Detention Center (“Metro West”) is under-equipped and ill-prepared to prevent and manage a COVID19 outbreak, which would result in severe harm to detained individuals, jail staff, and the broader community. The reasons for this conclusion are detailed as follows.
29. Plaintiffs state that at Metro West, common areas and high-touch surfaces are cleaned using diluted cleaning products only at “shift change,” or every eight hours. Failure to properly sanitize common areas and high-touch surfaces such as the phones that detained individuals heavily use, seriously increases the risk of the spread of COVID19 and demonstrates the failure to take the most fundamental precautions for preventing the spread of the disease.
30. Plaintiffs are held in dormitory-style cells, some with upwards of 60 people per cell, and sleep on bunk beds with just a few feet of distance between them. Given this layout and crowded environment in which individuals are held, it is impossible to provide an environment where social distancing can take place, depriving individuals of being able to use one of the most important CDC-recommended measures to protect themselves.
31. Even before the COVID-19 crisis, Plaintiffs attested to having to wait several days to have access to a medical doctor for serious medical concerns. Now, with the threat of the virus’ spread through the jail population, it is questionable whether the jail medical unit is equipped to address both underlying chronic conditions of individuals and a potential outbreak of COVID-19 in the jail.
32. For individuals in these facilities, the experience of an epidemic and the lack of care while effectively trapped can itself be traumatizing, compounding the trauma of incarceration.
33. The neglect of individuals with acute pain and serious health needs under ordinary circumstances is also strongly indicative that the facilities will be ill-equipped to identify, monitor, and treat a COVID-19 epidemic. Plaintiffs’ declarations attest to neglect of their serious medical conditions even under typical circumstances. It is unlikely that when the medical unit is strained both due to potential understaffing or additional burden from potential COVID-19 patients that it will be able to provide the care necessary for those with medical needs caused by conditions other than COVID19.
34. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected. Plaintiffs and others held in the jail have serious medical vulnerabilities, including diabetes, asthma, HIV and other respiratory conditions. An outbreak in Metro West would be disastrous 7

Case 1:20-cv-21457-KMW Document 3-14 Entered on FLSD Docket 04/05/2020 Page 9 of 31
for Plaintiffs and other medically vulnerable individuals. Not only is it questionable whether the facility has enough technology such as ventilators, personal protective equipment or medical personnel to treat serious cases of COVID-19, but it is also worrisome that, without proper precautions, patients from Metro West will likely put additional strain on Jackson Health Systems, the institution that will ultimately have to absorb patients from the jail.
V. Conclusion and Recommendations
35. For the reasons above, it is my professional judgment that individuals placed in the Metro West Detention Center are at a significantly higher risk of infection with COVID-19 as compared to the population in the community, given the procedural and housing conditions in the facilities, and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death.
36. Reducing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for who both are housed and work within those facilities and for the community at large.
37. From a public health perspective, it is my strong opinion that individuals who can safely and appropriately remain in the community not be placed in the Metro West Detention Center at this time. I am also strongly of the opinion that individuals who are already in those facilities should be evaluated for release, and that a careful evaluation of procedural and housing guidance is created for those who remain in the facilities during the “stay at home” mandate, and possibly until the epidemic is contained.
38. This is more important still for individuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune systems, cancer, and diabetes) or who are over the age of 60.11 They are in even greater danger in these facilities, including a meaningfully higher risk of death.
39. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in these facilities is a matter of days, not weeks.
40. Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.
11 Report of the WHO-China Joint Mission of Coronavirus Disease 2019 (COVID-19) (Feb. 16-24 2020), available at https://www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf.
8

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

Name

April 4, 2020 Date

9

Case 1:20-cv-21457-KMW Document 3-1E4XHEnIBteIrTedAon FLSD Docket 04/05/2020 Page 11 of 31
Pedro J. Greer Jr., MD
Dr. Greer is Professor of Medicine, Founding Chair of Humanities, Health, and Society and Associate Dean for Community Engagement at Florida International University Herbert Wertheim College of Medicine (FIU HWCOM) in Miami, Florida. Throughout his career Dr. Greer has been an advocate for health equity by engaging communities to create effective health and social policies and accessible health care systems. His advocacy began during medical training when Dr. Greer established Camillus Health Concern, Inc. and Saint John Bosco, health centers for underserved populations in Miami-Dade County, Florida.
Better known as “Joe,” Dr. Greer has received numerous awards and Honorary Doctoral degrees. Most recently The Bob Graham Center for Public Service, a nonpartisan civic engagement center at the University of Florida, named Dr. Greer its 2017 Citizen of the Year. The award recognizes “Florida citizens who have made extraordinary contributions to the state—individuals [who] have used their personal and professional talents to make Florida a better place for its citizens.” Dr. Greer was honored with the 2014 National Jefferson Award in the category of Greatest Public Service Benefiting the Disadvantaged. He has been recognized with the 2013 Great Floridian Award, the 2009 Presidential Medal of Freedom, and in 1993, he was honored as a MacArthur Foundation "Genius Grant" Fellow. He has also received a Papal Medal and has been knighted as a Knight of Malta and St. Gregory the Great. He has published more than 30 articles and book chapters on topics ranging from hepatic and digestive disorders to policy, poverty, medical education and health in America. He wrote Waking Up in America, a book about his life experiences, including providing care to homeless individuals under bridges in Miami, to career highlights, such as advising Presidents Bush Sr. and Clinton on health care.
As Associate Dean for Community Engagement, Dr. Greer promotes the social mission of FIU HWCOM to facilitate medical student training and improve community health. Working with various FIU colleges, Dr. Greer spearheaded a unique service-learning and community-based medical curriculum to prepare physicians and other health professionals to address the social determinants of health, while simultaneously caring for individuals and communities through a household-centered approach to clinical care.
Dr. Greer is currently serving in various capacities for a multitude of national, state, and local organizations. He is a Trustee at the RAND Corporation (America’s oldest and largest think tank) and is the current Chair of the Pardee RAND Graduate School Board of Governors, an institution that confers one of the highest numbers of PhDs in policy analysis in the world. Dr. Greer served as Chair for the Hispanic Heritage Awards Foundation from 2002 to 2012. He is an independent board member of American Funds 2016 to present. He is also a member of Alpha Omega Alpha National Medical Honor Society and a fellow in the American College of Physicians and the American College of Gastroenterology.
Dr. Greer did his undergraduate work at the University of Florida and medical studies at La Universidad Católica Madre y Maestra in the Dominican Republic. He trained in Internal Medicine and served as Chief Resident at the VA/University of Miami Miller School of Medicine in Miami, Florida. Dr. Greer completed two post-doctoral fellowships, one in Hepatology, the other one in Gastroenterology, where he was an Assistant Dean; he is board certified in Medicine and Gastroenterology. Before joining FIU HWCOM, Dr. Greer ran a successful private practice and was Chief of Gastroenterology and Hepatology at Mercy Hospital in Miami.

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Name: Position:
Address:

CURRICULUM VITAE
Pedro Jose Greer, Jr., M.D. FACP, FACG
Professor and Founding Chair, Department of Humanities, Health, and Society Associate Dean for Community Engagement Florida International University (FIU) Herbert Wertheim College of Medicine (HWCOM)
11200 SW 8th St., AHC2 596 Miami, FL 33199
Tel: (305) 348-0619 Email: greerp@fiu.edu

EDUCATION
1990-1991 Jackson Memorial Hospital University of Miami Miller School of Medicine, Miami, FL
1989-1991 Jackson Memorial Hospital University of Miami Miller School of Medicine, Miami, FL
1988-1989 University of Miami Miller School of Medicine, Miami, FL 1987-1988 University of Miami Miller School of Medicine, Veterans
Administration Medical Center, Miami, FL 1985-1987 University of Miami Miller School of Medicine, Miami, FL 1984-1985 University of Miami Miller School of Medicine, Miami, FL 1978-1984 Pontifica Universidad Católica Madre Y Maestra, Santiago de los
Caballeros, Dominican Republic 1974-1978 University of Florida, Gainesville, FL

Chief Fellow
Fellow
Fellow Chief Medical Resident Resident Intern M.D.

Gastroenterology
Gastroenterology
Hepatology Internal Medicine
Internal Medicine Internal Medicine Medicine

LICENSES, CERTIFICATIONS

1993

American Board of Internal Medicine, Subspecialty in Gastroenterology (#116332)

1989

American Board of Internal Medicine (#116332)

1986

Medical licensure (#ME 0047468), Florida; Renewed every 2 years; Jan 2018

1986

National Board of Medical Examiners (# ME 0047468); FLEX

PRINCIPAL POSITIONS HELD
2014-2015 Herbert Wertheim College of Medicine, Miami, FL

2014-Pres. Herbert Wertheim College of Medicine, Miami, FL 2009-Pres. Herbert Wertheim College of Medicine, Miami, FL

2007-Pres. Herbert Wertheim College of Medicine, Miami, FL

1998-2006 1994-2006 1992-Pres. 1992-Pres.

Mercy Hospital Mercy Hospital University of Miami Miller School of Medicine, Miami, FL University of Miami Miller School of Medicine, Miami, FL

1991-2005
1991-Pres. 1990-2007

St. John Bosco Clinic – SSJ Health Foundation (free clinic for undocumented immigrants) Gastro Health, P. L. University of Miami Miller School of Medicine, Miami, FL

Interim Chair, Department of Medicine*
*In AY2014-2015, I led the merger between the Department of Medicine and the Department of Humanities, Health, and Society (July 2015).
Associate Dean for Community Engagement Founding Chair, Department of Humanities, Health, and Society Professor of Medicine & Curricular Strand Leader for Medicine and Society Chief of Gastroenterology Department Director of Mercy Mission Services Adjunct Associate Clinical Professor of Medicine Adjunct Associate Professor of Epidemiology and Public Health Medical Director
Private Practice, Gastroenterology Assistant Dean for Homeless Education

Greer PJ. 1

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HONORS AND AWARDS

Honorary Degrees and Titles

2012

Wayne State University

2005

Salem State College

2004

Stonehill College

1997

University of Florida

1995

Barry University

1994

New York Medical College

1992

St. Thomas University

1992

University of Miami School of Medicine

Doctor of Law Doctor of Humane Letters Doctor of Humanities Distinguished Alumni Doctor of Law Doctor of Science Doctor of Humane Letters Honorary Alumnus

Honoris Causa Honoris Causa Honoris Causa
Honoris Causa Honoris Causa Honoris Causa

Honors and Awards

2019

Florida Trend 2019, Florida 500 Most Influential Business Leaders, Life Sciences

2019 2018

Pride in the Profession Award, Excellence in Medicine Awards, Chicago, IL AMA Foundation 35th Hispanics in Philanthropy (HIP) Anniversary Conference, San Francisco, CA, HIPGiver Award

2017

University of Florida Bob Graham Center, Gainesville, FL, 2017 Citizen of the Year Award

2016

Council for Latino Workplace Equity, North Miami, FL, Top Latino Leader Award

2014

Health Choice Network, Miami, FL, Jessie Trice Hero Award

2014

Jefferson Awards Foundation, Washington, DC, Outstanding Public Service Benefitting the Disadvantaged

2011

Miami Dolphins, Miami, FL, Humanitarian Award

2011

Florida International University, Miami, FL, Cal Kovens Distinguished Community Service Award

2010

AARP The Magazine, Washington, DC, Inspire Award

2010

Temple Beth David, Miami, FL, Public Citizen Award

2009

President Barack Obama, at the White House, Washington, DC, Presidential Award: Medal of Freedom

2008

Latino Leaders Magazine, Dallas, TX, 101 Top Leaders of the Latino Community in the USA

2007

Vista Magazine, Health Award

2007

Orange Bowl Foundation, Miami Lakes, FL, El Espíritu de La Comunidad Award

2007

Barry University, Miami Shores, Faith and Freedom Award

2005

Prospanica (Formerly, National Society of Hispanic MBAs), Dallas, TX, Board Leadership Award

2005

El Consejo de la Hispanidad de Los Estados Unidos de América (The Hispanic Heritage Council of the United States

of America), Don Quixote Award

2005

The Pan American Health Organization, Washington, DC, Public Health Hero of the Americas

2004

Hispanic Unity of Florida, Hollywood, FL, Amigos Award

2004

The Pan American Cuban Medical Convention, Miami, FL, Gold Medal of Honor

2004

Florida Department of Health, Board of Medicine, Tallahassee, FL, Board Chair Recognition Award

2002

Hispanic Magazine, Virginia Gardens, FL, Hispanic of the Year

2002

St. Luke’s Society of South Florida, Ft. Lauderdale, FL, Hispanic of the Year

2002

Kiwanis of Key Biscayne, Key Biscayne, FL, Citizen of the Year

2002

The Latin Chamber of Commerce of the United States, Miami, FL, Professional of the Year

2002

Big Brothers Big Sisters of Miami, Women’s Committee, Miami, FL, Miracle Makers Award

2002

Dade County Medical Association, Miami, FL, Physician Recognition Award

2002

Asociación Interamericana de Hombres de Empresa, Miami, FL, Leslie Pantin Award

2001

The Caring Institute, Washington, DC, Caring Award

2001

Catholic Charities of the Archdiocese of Miami, Miami, FL, Spirit of Charity Award

2001

Fundación Brugal, Santo Domingo, Dominican Republic, Brugal Cree en su Gente Award

2001

Juvenile Diabetes Research Foundation (JDRF), Oakland Park, FL, Tribute to the Family Award

2001

Ellis Island Foundation, New York, NY, Ellis Island Medal of Honor

2000

Greater Miami Chamber of Commerce, Miami, FL, Health Care Heroes Award

2000

Boy Scouts of America South Florida Council, Miami Lakes, FL, Hispanic Heritage Community Leader Award

1999

Broward County Hispanic Women’s Coalition, Broward, FL, Award

1999

Family Counseling Services of Greater Miami, Miami, FL, Family of the Year

1999

United Way of Miami, Miami, FL, Starfish Award

1997

Macy’s, Cincinnati, OH, Follow-A-Leader Mentor Program Award

1997

International Catholic Stewardship Council, Dearborn Heights, MI, Christian Stewardship Award

1997

Exito Magazine, Surprise, AZ, One of 50 Most Fascinating People of Miami

Greer PJ. 2

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1997 1997
1997 1996 1996 1996
1995 1995 1995 1995 1995 1995 1995 1994 1994 1994 1994 1993 1993 1993 1993 1993 1993 1993 1993 1993 1993 1993 1993 1993 1993 1992 1992 1992 1992
1992 1992 1992 1992 1992 1992 1992 1991 1991 1991
1991 1991 1991 1991 1990 1990 1990
1990 1990

New Times Magazine, Best of Miami, “Best Local Boy Done Good” President Bill Clinton, Ex-President George Bush and General Colin Powell, at Presidential Summit, Philadelphia, PA, Presidential Service Award Hippocrates: Health & Medicine for Physicians Journal, Doctor of the Year – Teaching Community Action Agency, Metropolitan Dade County, FL, Sgt. Shriver Award Miami Dade Community College, Homestead Campus, Homestead, FL, Drum Major Award for Humanitarian Effort Turner Broadcasting Systems, Miami, FL, Saluting African-American Achievement, Annual Trumpet Award, Special Honoree for Service to African American Community Florida Hospital Association, Tallahassee, FL, Florida Health Care Communicator of the Year Little Flower Catholic Church, First Annual Humanitarian Award NBC and Hispanic Magazine, Hispanic Achievement, Washington, DC, VIDA Award - Medicine and Sciences American Red Cross, South Florida Chapter, Humanitarian of the Year Visiting Nurse Association of Miami, Miami, FL, Person of the Year CBS, New York City, NY, The Newsweek American Achievement Award Rotary Club of Miami, Miami, FL, Citizen of the Year Time Magazine (Dec. 5, 1994), New York City, NY, 50 Future Leaders of America Under the Age of 40 Facts About Cuban Exiles (F.A.C.E.), Pro Bono Award Sigma Chi Fraternity (National), Annual Meeting, ON, Canada, Significant Sig Medal American College of Physicians, Philadelphia, PA, Special Recognition of Community Service Florida Gastroenterology Society, Opa-Locka, FL, Distinguished Service Award La Liga Contra El Cancer, Miami, FL, Special Recognition The Northern Trust Company, Miami, FL, Community Leadership Award Zeta Phi Beta Sorority, Beta Tau Zeta Chapter, Outstanding Community Service Greater Miami Jewish Federation, Miami, FL, Outstanding Community Leadership Award Veterans Caucus, affiliate of the American Academy of Physician Assistants, Dover, DE, Special Community Award South Florida Magazine, Miami, FL, Health Care Heroes Award Telemundo, Hialeah, FL, Persona de la Semana (July 5, 1993) MacArthur Foundation, Chicago, IL, MacArthur Fellow (June 15, 1993 – 1998) Jessie Ball DuPont Fund, Jacksonville, FL, Jessie Ball DuPont Award Dade County Bar Association, Miami, FL, Doctor of the Decade The Knights of Malta, Knighted The Order of Saint Gregory the Great, Knighted Catholic Church, Pro Eclesia et Pontifice, Papal Medal Maxwell House, Nashville, TN, 100 Real Heroes CNN en Español, Univisión, Personalidad de la Semana (Dec. 4, 1992) ABC World News, Peter Jennings, New York, NY, Person of the Week (Nov. 20, 1992) American College of Physicians, Florida Chapter, Jacksonville, FL, Charles K. Donegan, M.D. Memorial Award for Distinguished Community Service American Heart Association of Dade County, Hollywood, FL, Man of the Year Advertising Federation of Greater Miami, Miami, FL, Community Service Award Florida Humanist Association, Englewood, FL, Outstanding Humanitarian Social Workers of Dade County, Dad County, FL, Special Community Service Honor Dade County Medical Association Auxiliary, Miami, FL, Doctor of the Year The City of Miami, Miami, FL, Commendation National Association of Social Workers, Florida Chapter, Miami Dade Unit, Public Citizen of the Year Zeta Phi Beta Sorority, Washington, DC, Outstanding Community Service Zeta Phi Beta Sorority (Sigma Zeta Chapter), Leadership Role Model Award Hispanic Medical Student Organization, University of Miami Miller School of Medicine, Miami, FL, Hispanic Medical Achievement Award Office of the Mayor, Dade County, FL, Dade County Red Ribbon Annual Community Leadership Award Service Employees International Union, Washington, DC, Hispanic Leadership Award South Florida Business and Wealth, Ft. Lauderdale, FL, Up and Comers Winner – Medical Category Christopher Columbus High School, Miami, FL, Hall of Fame (induction: Jan 1991) Medical Business Magazine, Medical Humanitarian of the Year Hispanic Business Magazine, Top 100 Most Influential Hispanics in the United States (Nov 1990) Representative Ileana Ros-Lehtinen (FL, 27th Dist.). “A Tribute to Dr. Pedro Jose Greer, Jr.” Congressional Record 136:95 (July 23, 1990). Florida Medical Association, Tallahassee, FL, The Herald Strasser, MD Good Samaritan Award Hispanic Heritage Award Foundation (Subsequently: Hispanic Heritage Foundation), Washington, DC, Hispanic Heritage Award for Excellence in Leadership
Greer PJ. 3

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1990 1989 1989 1989 1989 1989 1989 1989 1989 1989 1989 1988
1987

Cedars of Lebanon Hospital Foundation, Beverly Hills, CA, Concern Award Miami Young Republicans (formerly, Biscayne Bay Young Republicans), Miami, FL, Award for Excellence Cuban Medical Association, Miami Beach, FL, Special Award Honoring Excellence The Miami Herald, Miami, FL, Spirit of Excellence Award Dade County Metropolitan Government, Dade County, FL, Commendation University of Miami Medical School Students, Class of 1989, Miami, FL, House Officer of the Year Directors of Volunteers in Agencies, Miami, FL, National Volunteer Week Award – Volunteer of the Year The City of Miami, Miami, FL, Certificate of Appreciation University of Miami Medical School Overseers Committee, Miami, FL, Helping Hands Special Recognition Award Public Health Trust Medical Social Workers, Miami, FL, Distinguished Community Service Award Saint Martin de Porres Society, Miami, FL Peace and Unity Award American Medical Association, Chicago, IL, AMA-Burroughs Wellcome Award in Leadership and Community Service American Medical Association, Chicago, IL, Outstanding Young Men of America

PROFESSIONAL ORGANIZATIONS
Memberships American College of Gastroenterology, Fellow (1993) American College of Physicians, Fellow (1991) American Gastroenterology Association American Association for the Study of Liver Disease Florida Gastroenterology Association American Society for Gastrointestinal Endoscopy American College of Medicine Dade County Medical Association Florida Medical Association
Service to Professional Organizations 1991-1992 Ad Hoc Committee on Physician Volunteerism, American College of Physicians 1989-1994 Health and Public Policy Committee, American College of Physicians 1989-1990 Ad Hoc Fellows Committee, American College of Physicians 1989-1990 American College of Physicians, Medicine, Resident Physician section (RPS) 1986-1992 Indigent Care Committee, American College of Physicians

Member Member Co-Chair Florida Delegate Member

BOARDS, COMMITTEES, AND COMMUNITY SERVICE

National 2016-Pres. 2016-Pres. 2015-2016
2014-2019
2010-Pres. 2010-Pres. 2010-Pres. 2006-Pres.
2006-2007 2001-Pres. 2001-2011 1999-2010

American Funds/ Capital Group, Board of Directors; Los Angeles, California Geisinger Commonwealth School of Medicine, Board of Directors; Scranton, PA Association of Academic Health Centers, Short-Term Social Determinant of Health (SDOH) Advisory Group; Washington, DC Dartmouth Geisel School of Medicine, Center for Health Equity, Board of Advisors; Hanover, NH RAND Pardee Graduate School, Board of Governors; Santa Monica, CA RAND Corporation, Executive Committee; Santa Monica, CA RAND Corporation, Board of Trustees; Santa Monica, CA Multicultural Education Training and Advocacy (META) Project, Board of Directors; Somerville, MA Smithsonian Latino Center, Board of Directors; Washington, DC RAND Health, Advisory Board; Santa Monica, CA Hispanic Heritage Foundation, Board of Directors; Washington, DC BNY/Mellon-United Bank, Board of Directors; New York, NY

Member Member Member
Member
Chair Member Member Member
Member Member Chair Member
Greer PJ. 4

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1999
1999
1998-Pres. 1996-2007 1996-1998 1995-1999 1994-1999 1994-1995 1993-Pres 1993 1993 1992-1998 1992-1995 1991-Pres. 1990-2003 1989-1995 1988 1987-2000

W. K. Kellogg Foundation, Fellowship in Health Policy Research Selective Committee; New York, NY Department of Health and Human Services, Agency for Health Care Policy & Research, Minority Health Services; Rockville, MD RAND Pardee Graduate School, Board of Governors; Santa Monica, CA RAND Corporation, Board of Trustees; Santa Monica, CA Physicians for Human Rights Board; Boston, MA National Hispanic Scholarship Board; Novato, CA Drug Strategies National Board, Washington, DC Dr. Pepper/7 Up Companies, Inc., Board of Directors; Dallas, Texas Comedy Relief USA, Inc., Board of Directors; New York, NY Presidential Health Professional Review Group, President Clinton; Washington, DC Governor Clinton’s Transition Team for Health Care; Washington, DC National Council of La RAZA; Washington, DC Drug Policy Research Center, Advisory Board; Santa Monica, CA Hispanic Heritage Foundation, Board of Directors; Washington, DC Drug Policy Research Center, Advisory Board; Santa Monica, CA Cuban American National Council, Executive Committee; Miami, FL Health Care for the Homeless, National Advisory Council; Washington, DC Cuban American National Council, Board; Miami, FL

Participant
Participant
Charter Member Member Member Member Member Member Member Member Member Member Chair Member Member Member Member Member

State/Local 2004-Pres. Orange Bowl Committee; Miami Lakes, FL 2002-2005 State of Florida, Department of Elderly Affairs Advisory Council; Tallahassee, FL

2002-2003 Miami-Dade County Mayor’s Health Care Task Force; Miami-Dade County, FL

2002

Destination Florida Committee; Miami, FL

Hon. Member Chair, Gov. Appointee Member Member, Gov. Appointee

1999-2001 1998-Pres. 1997 1995-Pres. 1994-2001 1994-1998 1992-2002 1992-1998 1992-1994 1992-1994 1992-1993 1992 1992
1991-1992 1990 1989-2001 1989-1993 1989-1991 1988-2001 1988 1988 1986-1987

Camillus House, Board of Directors; Miami, FL Junior League of Miami, Community Advisory Board; Miami, FL State of Florida, Department of Elderly Affairs, Committee; Tallahassee, FL University of Florida Foundation, Board of Directors; Gainesville, FL Miami-Dade County Homeless Trust Board; Miami-Dade County, FL Catholic Health Services, Board of Directors; Lauderdale Lakes, FL Miami Coalition for a Drug Free Community, Board of Directors; Miami, FL United Way of Dade County, Board of Directors Governor’s Commission of the Homeless, Ad-Hoc; Tallahassee, FL We Will Rebuild, Board of Directors; Miami, FL Miami Coalition for the Homeless, Board of Directors; Miami, FL Dade County, Public Health Trust, Citizens Advisory Board Migrant Camps, Hurricane Andrew Relief: University of Miami School of Medicine, United Way, & Camillus Health Concern Indigent Health Care Task Force for Dade County; Miami, FL Dade County, Committee for Health Reform, ad-hoc; Dade County, FL Camillus House, Board of Directors; Miami, FL Catholic Community Services, Board of Directors; Miami, FL Safe Space – Shelter for Battered Women, Advisory Board Camillus Health Concern, Board of Directors Homeless, Missing, and Exploited Children of Dade County, Board; Miami, FL Greater Miami Chamber of Commerce, Task Force for the Homeless; Miami, FL Miami Coalition for the Homeless, Board of Directors; Miami, FL

Chair Member Chair Member Member Member Member Member Member Member Member Member Coordinator
Chair Member Member Member Member Member Member Member Member

Greer PJ. 5

Case 1:20-cv-21457-KMW Document 3-14 Entered on FLSD Docket 04/05/2020 Page 17 of 31 INVITED PRESENTATIONS

International Topics Year Type 2017 Panelist
2017 Panelist
2017 Presenter

Occasion/Event
25th Anniversary International Conference of the Netter Center for Community Partnerships, University of Pennsylvania
25th Anniversary International Conference of the Netter Center for Community Partnerships, University of Pennsylvania
AMEE Symposium, AMEE (International Association for Medical Education)

Topic Community Health
Community Health
ASPIRE in Social Accountability

Location Philadelphia, PA
Philadelphia, PA
Helsinki, Finland

2013 Speaker 2012 Keynote 2012 Speaker 2010 Keynote 2006 Speaker

2004 Keynote

2003 Speaker 2000 Keynote

2000 Panelist

1999 Presentation

1997 1997

Convocation Lecture
Speaker

1989 Presentation

TEDx at Florida International University
American University of the Caribbean School of Medicine, St. Maarten, Graduating Class of 2012 TEDx at Coconut Grove, FL
American University of the Caribbean School of Medicine, St. Maarten, Graduating Class of 2010 Princeton University, Princeton-Harvard Cuba Conference
Caring Institute, 22nd National Association for Homecare & Hospice, 3rd World Congress on Homecare and Hospice International Symposium A Practical Approach to Infectious Diseases – 2003 5th Annual International Conference, International Institute of Human Understanding, Human Understanding Panelist, LASA Conference
XVIII Seminario Medicino Latino Americano, Mercy Hospital

Social Determinants of Health and Medical Curriculum Reform Social Justice

Coconut Grove, FL St. Maarten

Moving Upstream: Social Determinants of Health
Social Justice

Coconut Grove, FL St. Maarten

“Juventud Despierta”, “Capacity of the Cuban Diaspora”
Social Responsibility in Health Care

Newark, NY Orlando, FL

New Horizons in Hepatitis C Infections
The Art of Being

Miami, FL Coconut Grove, FL

Cuban Miami’s Multiple Identities, Memories, Myths and Realities
Hepatitis C: Current Therapy

Miami, FL Miami, FL

Alpha Omega Alpha (A.O.A.) Convocation Lecture, Ponce School of Medicine
Medical Grand rounds, Damas Hospital, Ponce School of Medicine
5th International AIDS Conference

Social Justice
Viral Hepatitis A-E
HIV Zero-Positivity in a Homeless Clinic

Ponce, PR Ponce, PR Montreal, Canada

Greer PJ. 6

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National Topics Year Type 2019 Keynote 2019 Keynote
2018 Lecturer
2018 Panelist

Occasion/Event Future of Medicine Symposium
4th Quarterly Faculty Development Meeting, CDU College of Medicine
Developing a Curriculum for Health Professionals Guided by Social Determinants of Health and Community Engagement Seminar, University of Pennsylvania School of Medicine and School of Nursing Health Journalism 2018

2017 Moderator

Aetna Hispanic Heritage Month Signature Event

2017 Keynote

GI Roundtable Conference: Patient and Community Engagement

2017 Lecture 2017 Keynote

Golden Apple Distinguished Lecture, East University Heart Institute
Patient and Community Engagement - My Perspective, GI Roundtable Conference

2017 2017

Speaker
Commencement Speaker

The U.S. News Healthcare of Tomorrow Conference
University of Illinois College of Medicine

2016 Speaker

10th Annual Future of Medicine Summit

2016 Moderator

10th Annual SFHHA Healthcare Summit

2016 Moderator

2016 AAHC Global Issues Forum

2016 Speaker 2016 Keynote 2016 Speaker
2016 Speaker

2016 AMSA Convention
2016 CIR (Committee of Interns and Residents) National Convention SEIU Healthcare AAMC 2016 Lean Serve Lead
Beyond Flexner 2016

2016 Speaker 2016 Keynote

Gold Humanism Conference, Thomas Jefferson University
Internal Medicine/Medical Humanities Grand Rounds, SIU School of Medicine

Topic
Roseman University Summerlin Campus Innovation in Clinical Education across the Medical Education continuum Social Accountability Where It Matters

Location Las Vegas, NV Los Angeles, CA
Philadelphia, PA

Transforming Medical Education: How are Medical Schools Adjusting?
A Conversation with Dr. Joe Greer
Patient and Community Engagement – My perspective
Why Physicians Need to Save the World
Social Determinants of Health and the Future of Health Education Addressing the Social Determinants of Health
Social Responsibility of Physicians and Health Professions The Quest for Healthy Aging- Mind, Body and Spirit How Health Systems Can Support Population Health Management Leadership in Social Determinants of Health Education
Bringing the Social Mission to Your School
The Role We Play in the Future of Health in America
Excellence in Medical Education: Standards for Best Practice Maintaining, Starting and Expanding the Social Mission of Medical Schools
Why We Need to Save the World, the Physicians Role
How Medical Schools and their Curricula Can make America Better

Phoenix, AZ
Hartford, CT Fort Worth, TX
Greenville, NC Forth Worth, TX Washington, DC Chicago, IL West Palm Beach, FL Davie, FL Washington, DC
Washington, DC Philadelphia, PA Seattle, WA Miami, FL
Philadelphia, PA Springfield, IL

Greer PJ. 7

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2016 Speaker 2016 Speaker 2016 Keynote 2016 Speaker
2015 Plenary 2015 Speaker

JSU RCMI Distinguished Seminar Series, Jackson State University Medicine Grand Rounds, New York Medical College at Westchester Medical Center RWJF Clinical Scholars 2016 Annual Meeting
The George Washington University, Internal Medicine Ground Rounds
11th Annual AAMC Health Workforce Research Conference 9th Annual Future of Medicine Summit: Innovations in Healthcare Delivery

Changing Medical Education
Changing Medical Education
Changing Medical Education
How Medical Schools Curricula Can Make America Better
Innovations in Caring for Underserved Communities
Innovations in Healthcare Delivery Systems

Jackson, MS Valhalla, NY Atlanta, GA Washington, DC
Alexandria, VA West Palm Beach, FL

2015 Moderator for Plenary
2015 Presentation
2015 Keynote
2015 Keynote 2014 Lunch conv.
with students 2014 Keynote 2014 Keynote 2014 Speaker
2014 Keynote
2013 Keynote 2013 Keynote 2013 Keynote
2013 Speaker 2013 Keynote

Beyond Flexner

Education and Social Mission

Albuquerque, NM

Institute of Medicine, The National Academies of Sciences Engineering Medicine
RAND Faculty Workshop: Conversations with Dr. Pedro Greer Jr. MD
The Dartmouth Symposium on Health Care Delivery Science Baylor College of Medicine
Catholic Health Partners Governance Annual Retreat Meeting Gold Humanism Honor Society Induction Ceremony, University of Washington Howard Dorsey Still (HDS) Lecture. Harvard Medical School
San Jose Clinic Speaker Series Luncheon
2013 Together on Diabetes Grantee Summit, Bristol-Myers Squibb Foundation American Diabetes Association, 6th Annual Disparities Partnership Forum Meharry Medical College
National Association of Free & Charitable Clinics Annual Summit UMDJNJ- New Jersey Medical School Humanism Day

Educating Health Professionals to Address the Social Determinants of Health A Consensus Study Diversifying the Medical Profession through Community Engagement and Outreach
Diffuse, Maintain, Sustain: Making Change Stick
Tomorrow’s Medicine: How DO We Make the World Healthier
Social Justice

Washington, DC Santa Monica, CA
Hanover, NH Houston, TX Miami, FL

Physicians Responsibility to the Most Vulnerable
Social Justice and Healthcare, Why We Need to Save the World?
Healthcare Crossroads: Influencing Policy and Social Responsibility
Social Determinants and Social Justice
Model for Transforming a High Risk Community
Immigrant Population and Social and Financial Implications That They Place On The Healthcare System Waking up America: Why we should Save the World
Humanism, Medicine, and Social Accountability

Seattle, WA Boston, MA Houston, TX Atlanta, GA Arlington, VA Nashville, TN
Baltimore, MD Newark, NJ

Greer PJ. 8

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2013
2013 2013
2013 2012 2012
2012 2011 2011 2011 2011 2010

Keynote
Guest
Speaker
Keynote Keynote Keynote
Commencement Speaker Keynote Keynote Speaker Commencement Speaker Keynote

University of Colorado Denver School of Medicine - 2013 Gold Humanism Honor Society Inaugural Event Denver University of St. Louis, Sharing Responsibility, Improving Community Health
University of Texas School of Dentistry of Houston. Ethics Forum, Escaping your Ethics Jail: Inter-Professional Ethics Education
West Virginia University, Diabetes Symposium & Workshop: Bridging the Gap in Education
Harvard Medical School, 2012 Latino Medical Student Association University of Michigan Health Systems, Leadership Day
Wayne State University, 2012 Graduation Commencement Academy of Managed Care Pharmacy, AMCP’S 2011 Educational Conference General Session Christus Health: Disparity in Healthcare in America The Colorado Health Symposium 2011, Colorado State of Mind UTMB School of Medicine Commencement
AMSA (American Medical Student Association) 60th Anniversary Annual Conference

Social Justice and Humanism
Sharing Responsibility, Improving Community Health What is ethics competency? Dispatches from the front line of a new integrated curriculum
The Value of Cultural Diversity
Social Justice
Social Justice, the Social Determinants of Health, and the Responsibilities of Healthcare Providers Social Justice
Impact of Social Determinants Disparity in Healthcare in America Social Determinants of Health and Social Justice Why The Worlds Is Yours To Save Social Justice and Social Determinants of Health

Colorado
St. Louis, MO Houston, TX
Morgantown, WV Boston, MA Detroit, MI
Detroit, MI Atlanta, GA Santa Fe, NM Denver, CO Galveston, TX Anaheim, CA

2010 Keynote 2010 Keynote
2009 Panelist 2009 Keynote

The University of Toledo College of Medicine
University of Chicago College of Medicine
Chicago Contributes, Health Care Panel, University of Chicago Harvard University

Issues in Migrant Worker Health Has American Medical Education Kept Up With The Needs of America Chicago Contributes
Latinos in Health Care

Toledo, Ohio Chicago, IL
Chicago, IL Boston, MA

2009 Panelist Annual Session Using Healthcare Reform to Create

CDC

Community Centric Efforts

2009 Keynote

Sisters of Charity of Leavenworth Health Systems

2009 Lecture

Williams College

Social Determinants of Health and Healthcare Reform Maintaining Mission In Today’s Society
Health, Humanities, and Society

Washington, DC Phoenix, AZ Williamstown, MA

2008 Keynote 2007 Keynote

St James Mercy Hospital
Seventeenth Annual Regional Conference, NNLAMS Midwest Region, University of Michigan Medical School

Social Justice and Healthcare in America
Salud Sin Barreras: Healthcare For All

Hornell, NY Detroit, MI

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2006
2006 2006
2005 2005 2005 2005 2005 2004
2004 2004

Keynote
Keynote
Keynote
Speaker
Keynote Commencement Speaker Guest Lecturer Keynote Keynote
Keynote Commencement Speaker

91st Annual Catholic Health Assembly, Catholic Health Association
Community Benefit Conference
University of Florida, 16th Annual HIV Conference
Medical Grand Rounds, Department of Medicine, University of Medicine and Dentistry of New Jersey, UMDNJ SACE (Southern Association of College Employees), Annual Meeting Salem State College, 151st Commencement
Stone Hill College, Martin Institute, Craig Higgins' "Class Healthcare Foundations & Evolutions." Stone Hill College, Martin Institute: Department of Public Health: The Peter Mareb Memorial Lectures Duke University
Orientation of first year Medical Students, University of Illinois Stone Hill College, Stonehill 53rd Commencement

The Next Generation of Community Benefit From Random Acts of Kindness to Strategic Thinking
How to Inspire and Be Inspired by Physicians in Healthcare Keeping with the Pace: An HIV Update, Dealing with Recalcitrant Patients: Tips From The Trenches
Medical Consequences of Inappropriate Social and Public Policies Social Justice
Social Justice
Lack of Social Justice in our Healthcare System Social Justice
Importance of Social Justice in Medicine and The Ability to use one’s Medical Profession to Better One’s Community Book Talk
Social Justice

Orlando, FL
Phoenix, AZ Gainesville, FL
Newark, NJ Miami, FL Salem, MA Easton, MA Easton, MA Raleigh Durham, NC
Chicago, IL Easton, MA

2003 Disting. Lecture Brown Medical School 2002-2003 Charles O. Cooke, M.D. Distinguished Visiting Lecture

2003 Keynote 2003 Keynote

Exxon-Mobil Headquarters Hispanic Heritage HISPANIC Magazines Achievement Awards

Sun, Fun, Politics and Suffering: What Happens to Patients When Doctors don’t Speak Up
Minorities in Engineering, Math, and Science Social Justice

Providence, RI
Mclean, VA San Francisco, CA

2003 Keynote 2003 Keynote 2003 Keynote 2002 Keynote 2002 Keynote 2001 Lecture

Iowa Hospital Association 74th Annual Meeting and Trade Show
People en Español Magazine Senior Staff Retreat
University of the Pacific, Latino Leadership Conference (El Concilio)
Society of Gastroenterology Nurses and Associates (SGNA), Annual Meeting
ULAMS Regional Conference, UT Southwestern Medical School
Begando Lecture Series Humanities in Medicine, University of Illinois, Chicago, Medical School

Social Justice Corporate Responsibility Social Justice Social Justice Social Justice Humanities in Medicine

Des Moines, Iowa Phoenix, AZ Stockton, CA Phoenix, AZ Dallas, TX Chicago, IL

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2000 Keynote
2000 Keynote 2000 Speaker 2000 Keynote 2000 Presenter 2000 Keynote 2000 Keynote

10th Annual National Abandoned Infants Assistance Grantees Conference, University of California at Berkeley 14th Annual Conference HIV/AIDS Jekyll Island
2000 National Healthcare for the Homeless Conference, Screening, Diagnosis, Treatment. Columbia University, Alumni Club of Miami
Health Affairs, Presenter, Narrative Matters
Hispanic Heritage Festival
Northwest Regional Primary Care Association

A1A, A Decade of Helping Families Achieve Healthy Futures
HIV, Hepatitis C, and Social Factors
Hepatitis C Among Homeless People
Social Justice and a Physicians’ Responsibility
Personal Stories and the Making of Health Policies
The Responsibility of Our Roles for Improving the World Social Justice

Washington, DC
Jekyll Island, GA Denver, CO Miami, FL Arlie House, VA Brunswick, NJ Denver, CO

2000 Keynote 2000 Keynote 2000 Keynote 1999 Keynote
1999 Lectures 1999 Keynote 1999 Lectures 1999 Keynote 1998 Plenary 1998 Speaker 1998 Lecture 1998 Keynote 1997 Speaker

United Way National De Tocqueville Meeting
United Way, Alexis De Tocqueville Society of Denver University of Alabama at Birmingham, VA Medical Center, Recognition Ceremony for Graduating Residents 13th Annual Minority Health Conference, University of Michigan
First Year Medical students and High School students regarding, Dearborn Fordson High School
Health Occupations Partner in Education (HOPE), Ypsilanti High School Seminars in Medicine, Third Year Medical Class, University of Michigan Medical School, Office of Multi-Ethnic Student Affairs Student National Medical Association (SNMA), 34th Annual National Medical Educational Conference 11th Annual Texas HIV/STD Conference at the Texas Department of Health Harvard Medical School Massachusetts Institute of Technology (MIT), Minority Scientist’s and Engineer’s Roles in the Future of America New England Biomedical Science Careers Program, sponsored by Commonwealth Fund and Harvard Medical School American Medical Student Association Annual Meeting, Homelessness and Student Responsibility

Social Responsibility translating into Social Justice Book Talk
Book Talk and Social Responsibility
Facing the Public Health Challenges of Tomorrow: Fresh Perspectives for the New Millennium Outreach to the Arabic Community of Greater Detroit Future Opportunities for All Students Various Topics
Diversity in Medicine: The Lifeline to Culturally Sensitive Healthcare Poverty and Disease
Physicians and Poverty The Role of Minority Scientists in the U.S. and the World Healthcare and the Homeless
Issues of Physicians and Responsibility

Coral Gables, FL Denver, CO Birmingham, AL Ann Arbor, MI
Detroit, MI Detroit, MI Ann Arbor, MI Miami, FL Austin, TX Boston, MA Cambridge, MA Boston, MA Orlando, FL

1997 Keynote

National Hispanic Medical Association First Annual Meeting

Social Justice

Washington, DC

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1997 Speaker

Physicians for Human Rights, 10th Annual Meeting

1996
1996 1996

Speaking Series
Keynote Speaker

Grand Rounds-The Dean Series, University of Medicine and Dentistry of New Jersey, School of Osteopathic Medicine
Masters in Pediatrics Annual Conference
National Association of Commission on Women

Health and Human Rights Issues in American Medicine Our Responsibility as Physicians
Social Justice Poverty and Women

Boston, MA
Stratford, NJ
Miami, FL Miami, FL

1995 1995 1995 1994 1994 1993

Commencement Speaker Keynote
Keynote
Lecture
Commencement Speaker Chair Briefing

East Tennessee State University, Medical Honors Graduation
Indianapolis Statewide Conference on the Homeless
State of Louisiana, 5th Annual Homeless Conference
A.O.A. Lecture and Medical Grand Rounds, Emory University School of Medicine
New York Medical College, Carnegie Hall, 135th Graduating Class, New York
Briefing to 103rd Congress on Drug Policy

Physicians and Social Responsibility Homelessness and our Collective Responsibility Physician Responsibility
Physicians and Social Responsibility Physicians and Social Responsibility Briefing on Drug Policy

Johnson City, TN Indianapolis, IN Baton Rouge, LA Atlanta, GA New York Washington, DC

1993 Keynote 1993 Speaker 1993 Speaker
1992 Keynote 1992 Speaker
1991 Keynote
1990 Speaker 1989 Presentation
1988 Speaker

CSAP, Resource link II Annual Meeting, Washington Hilton National Council of Jewish Women, Annual Luncheon The Forum, Institute of Politics at the John F. Kennedy School of Government, Harvard University Food Link, Annual Dinner
Medical Grand Rounds, Department of Medicine, St. Mary’s Hospital, University of Rochester
Critical Care Registered Nurse (CCRN), Annual Luncheon
AAMS National Convention
Southern Medical Association Annual Meeting
NACHC Regional Meeting

From Under the Bridges to the Executive Offices
Social Responsibility

Washington, DC Miami, FL

Current Policies with Homelessness

Cambridge, MA

Physicians and Social Responsibility
Medical Consequences of Healthcare and the Poor, a Physicians Responsibility
Healthcare Professionals' Responsibility for the Indigent
Homeless Healthcare and a Multicenter Clinic
Traumatic Neuromas as a cause of PostCholecystectomy Syndrome
Health, Homelessness and Coalition Building

Rochester, New York Rochester, New York Miami, FL
Washington, DC Washington, DC
New Orleans, LA

Local and Regional Topics

Year Type

Occasion/Event

2019 Speaker

2019 Future of Healthcare Conference and

2019 Keynote

Annual Meeting 8th Annual Senator Philip D. Lewis Luncheon

Topic The Joy of Medicine
Homeless Coalition Keynote Address

Location
Jacksonville, FL West Palm Beach, FL

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2017 Speaker 2017 Speaker 2016 Keynote 2015 Lecture
2015 Keynote 2014 Keynote 2014 Speaker 2014 Keynote 2014 Speaker
2012 Speaker 2011 Keynote 2010 Keynote 2009 Keynote 2008 Keynote 2008 Keynote 2004 Keynote 2004 Keynote
2004 Keynote
2004 Keynote 2003 Keynote 2003 Keynote
2003 Speaker 2003 Keynote 2003 Keynote

Bob Graham Center Public Program, University of Florida Our Lady of Lourdes Academy St. Anthony’s Healthcare Foundation
Diversity Day, University of Florida
Greater Kendall Business Association Luncheon Florida Association of Free and Charitable Clinics 2014 Annual Conference Florida State University College of Medicine. Humanism Grand Rounds Integrate HIMSS Fall Event 2014 MDCC North Campus
Bob Graham Center for Public Service, University of Florida 2011 NBCSK & NHCSL Promoting Healthy Lifestyles Conference University of Miami Primary Care Week
FIAC Community Forum: Immigrant Access to Healthcare Avera Health, Marriot City Center
Brevard County Barry University
Grant Makers in Health Conference
Miami-Dade Community College Honors Programs Students Orientation, Miami, Florida Wolfson Campus United Way of America, Alexis de Tocqueville Society 31st Annual Dinner Benefiting the Central Florida Health Care Clinics Central Florida Health Care Coalition
Invited by Governor Jeb Bush, talk to Governors Senior staff, Leadership Forum Kosher Food Bank, Grand Opening Ceremony
The Golden Rule Awards Benefit

What is a Citizens Responsibility to the Most Vulnerable
The Plunge Experience
Physicians and Social Justice
Innovation in Healthcare Education and Delivery: Why It Needs to Change FIU Unique Approach to Improve Health in the Community Social Determinants of Health and its Influence on Health Outcomes Physicians Roles and Responsibilities in Today’s Society Social Responsibility
Faces of the Homeless in an International City: Through the Eyes of the Artists
Social Responsibility and Social Justice Social Responsibility
Physician Responsibilities in Society FIAC Community Forum: Immigrant Access To Healthcare
Social Justice and Healthcare in America Health Issues Social Work Practice In These Troubled Times Physicians and Healthcare System’s Responsibility to the Poor Social Responsibility
Our Responsibility to the Most Vulnerable Social Responsibility in Health Care Social Determinants and Social Responsibility of Health Care Professionals Social Responsibility
Social Justice and Social Responsibility Healthcare and the Homeless

Gainesville, FL
Miami, FL St. Petersburg, FL Gainesville, FL
Miami, FL Orlando, FL Tallahassee, FL Davie, FL Miami, FL
Gainesville, FL Miami, FL Miami, FL Miami, FL
Minneapolis, MN Melbourne, FL Miami, FL Ft. Lauderdale, FL Miami, FL
Sarasota, FL Lake Wales, FL
Orlando, FL
Tallahassee, FL
Miami, FL Immokalee, FL

2003 Commencement University of Florida Medical School

Speaker

2002 Keynote

Hope Program Indigent Care

2002 Keynote

Minority Premedical Student Forum, University of Florida

Physician Responsibility and Social Justice
Social Responsibility and Social Justice Diversity, Responsibility, and Social Justice

Gainesville, FL Melbourne, FL Gainesville, FL
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2002 2001 2001 2001 2001 2001 2001 2000 2000 2000 2000 2000

Keynote Address Keynote Address Keynote
Book Lecture
Keynote
Lecture
Keynote
Speaker
Commencement Address Keynote
Keynote
Keynote

NACOPRW (National Conference of Puerto Rican Women), Miami Chapter
Annual Junior National Honor Society Induction, George W. Carver Middle School
Belen Jesuit Preparatory School, Annual Book Fair
American Association of University Women, Miami Chapter
Florida International University, Annual Honors Awards Ceremony
University of Florida Medical Students Annual Conference
University of West Florida, John C. Pace Speaker Series
Byblos Literary Feast 2000, Meeting of the Minds Novel Day for Students
Commencement Address for Graduating Class of 2000, Palmer Trinity School
Coral Gables Senior High School, National Honor Society
Coral Reef Senior High School, International Baccalaureate Pinning Ceremony
Florida AIDS Summit 2000 (AHEC)

Social Justice Social Responsibility Starts Now Waking up in America Book Lecture Social Justice Physicians and Poverty Social Responsibility Waking Up In America The Future and How You Can Make It Better Social Responsibility Social Responsibility AIDS Education Training

2000 Keynote 2000 Keynote 2000 Keynote 2000 Keynote 2000 Keynote 2000 Lecture 2000 Keynote
2000 Keynote 2000 Keynote 2000 Keynote 2000 Keynote 1999 Speaker

Florida Governor’s Health Care Summit, Solutions for the Uninsured Luncheon, University of Tampa, Honors Program, State of Florida Junior Colleges Media Appreciation Luncheon, Archdiocese of Miami Mercy Hospital
Our Lady of Lourdes Academy, Annual Assembly, Book Talk Pediatric Grand Round, University of Miami Department of Podiatry Public Education Foundation of Marion County, Leadership Ocala Class Frazier Graduation Selby Foundation, First Annual Scholar Symposium University of Florida, Hispanic Student Association University of Miami, Primary Care Week
Workshop, Hispanic Student Forum, University of Florida Festival of Readings

Solutions for the Uninsured
Book Talk
Social Justice
Liver Cancer Prevention in Hepatitis C Waking up in America
Physicians -The Poor and Our Responsibility Our Collective Social Responsibility
Book Talk
Book Talk
Innovative Approaches to Health Care Responsibility and Compassion
Waking Up In America

1999 Keynote 1999 Speaker

Florida Alcohol & Drug Abuse Administration (FADAA) 15th Annual Multicultural Symposium Miami International Book Fair

Just the Facts Alcohol & Drug Abuse in Hispanics
Waking Up In America

Miami, FL
Coconut Grove, FL Miami, FL
Miami, FL
Miami, FL
Gainesville, FL
Pensacola, FL
Fort Lauderdale, FL Miami, FL
Miami, FL
Miami, FL
Jacksonville, FL Miami, FL
Tampa, FL
Miami, FL
Miami, FL Miami, FL
Miami, FL
Ocala, FL
Sarasota, FL
Gainesville, FL
Miami, FL Gainesville, FL
St. Petersburg, FL Hollywood, FL
Miami, FL

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1999
1999 1998
1998
1998
1998 1998 1996 1996 1995
1995 1993 1993 1993 1993
1992 1992 1992 1992 1992
1991
1991 1991 1991

Speaker
Speaker Keynote
Collaborative Presentation
Keynote
Keynote
Keynote Commencement Speaker Speaker Convocation Speaker Commencement Speaker Keynote Commencement Speaker Speaker Keynote
Commencement Speaker Speaker Keynote Keynote Speaker
Keynote
Speaker
Keynote Speaker

Nursing Management of HIV Disease Workshops Jackson Memorial Medical Center, Florida AIDS Education and Training Center, Association of Nurses in AIDS Care, Metro Miami Chapter Sarasota Reading Festival 2nd Annual Conference of the Melissa Institute for Violence Prevention and Treatment at the Victor E. Clarke Educational Center, South Miami Hospital
Community Epidemiology Work Group Meeting
Florida Department of Health, Bureau of HIV/AIDS Conference
Health Care Heroes Award, Greater Miami Chamber of Commerce Walden University, Policy and the Advocates
Mast Academy
University of Florida School of Medicine
A.O.A. Convocation Speaker and Medical Grand Rounds, University of Florida School of Medicine Palmer-Trinity School
Florida Homeless Conference Ransom Everglades High School
Sarasota General Hospital University of Miami School of Medicine, Student Council Convention, Health Reform In Our Future Barry University School of Nursing
Barry University School of Podiatric Medicine, Senior Students FADA (Florida Alcohol and Drug Association) Annual Meeting Leadership Florida Medical Grand Rounds, Department of Medicine University of Florida, College of Medicine Alpha Epsilon Delta (Premed Honor Society) Annual Dinner and Induction, University of Miami, Marriot Hotel Barry University School of Podiatric Medicine, Senior Students Health Issues Conference, University of Florida College of Medicine The Homeless, University of Miami School of Law

HIV & the Homeless
Waking Up In America Physicians and Social Responsibility
HIV Surveillance of Drug Abuse and Sexual Risk Behaviors among homeless persons in Miami-Dade County, Florida The Future of HIV Counseling and Testing, Advanced Concepts and Techniques Social Responsibility and Professional Responsibility Policy and Advocacy How You Can Make the World Better How to Make a Living and a Difference Physicians and Responsibility
How You Can Make the World Better Healthcare for the Homeless How You Can Make the World Better Health and the Homeless Health Reform in Our Future
Social Responsibility
Indigent Care
Societal Factors, Drugs, and Behavioral Health Social Responsibility Physicians Responsibility, Not Just To Patients, But to Society
Social Responsibility
Indigent Care
Indigent Care
Law and Poverty

Miami, FL
Sarasota, FL Miami, FL
Miami, FL
Orlando, FL
Miami, FL Miami, FL Miami, FL Gainesville, FL Gainesville, FL
Miami, FL Tallahassee, FL Miami, FL Sarasota, FL Miami, FL
Miami Shores, FL Miami, FL Ft. Lauderdale, FL Miami, FL Gainesville, FL
Miami, FL
Miami, FL Gainesville, FL Miami, FL
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1991 1990 1990 1990 1990 1990 1990 1990 1989 1989

Commencement Speaker Keynote Speaker Speaker Keynote
Speaker Keynote Keynote Speaker Speaker

University of Miami School of Business
Best of the Class, (Graduating Seniors, Tricounty Area) WBFS TV, Atlantis Water Park Catholic Community Services Annual Conference, Social and Economic Justice Children in Crisis Conference, University of Miami Holy Cross Hospital (Luz del Mundo Clinic)
Omicron Delta Epsilon Leadership Conference, University of Miami Public Interest Seminar University of Miami School of Law University of Miami School of Law Homelessness and the Law Conference on Homeless, Mental Illness and Health, University of South Florida Homeless Symposium, Barry University

Inappropriate Social Policy
Social Responsibility
Health Care and the Homeless: A Local Approach Homelessness in the United States
Responsibility as Healthcare Providers to the Most Vulnerable Ethics In America
AIDS and the Homeless
Medical Consequences of the Law and Homelessness Health Aspects of the Homeless
Health and Homelessness

1989 Speaker

University of Miami School of Law

Volunteers and the Homeless

1988 Speaker

Barry University, School of Nursing

Health Care and the Homeless

1988 Keynote 1987 Speaker 1987 Lecture Series

Career Day, Cuban American National Council & Dade County School Board
Medical Grand Rounds University of Miami School of Medicine/Department of Medicine Emergency Lecture Series to University of Miami/Jackson Memorial Hospital Interns

Your Future and Your Responsibility
The Plight of the Homeless in an Affluent Society Approach to the Homeless Emergency Room Patient

Coral Gables, FL Paradise Island, Bahamas Miami, FL
Miami, FL
Ft. Lauderdale, FL Coral Gables, FL Coral Gables, FL Coral Gables, FL Tampa, FL
Miami Shores, FL Coral Gables, FL Miami Shores, FL Miami, FL
Miami, FL
Miami, FL

SERVICE TO PROFESSIONAL PUBLICATIONS
Reviewer, American Journal of Public Health Reviewer, Health Policy Journal Reviewer, The Journal of Family Practice Editorial Board Member, Medico Interamericano

RESEARCH AND CREATIVE OPPORTUNITIES
PEER-REVIEWED PUBLICATIONS
11. Greer PJ, Brown DR, Brewster LG, Lage OG, Esposito KF, Whisenant EB, Anderson FG, Castellanos NK, Stefano TA, Rock JA. Socially Accountable Medical Education: An Innovative Approach at Florida International University Herbert Wertheim College of Medicine. Acad. Med. 2018;93(1):60-65. doi: 10.1097/ACM.0000000000001811.
10. Campa A, Martinez SS, Sherman KE, Greer PJ, Li Y, Garcia S, Stewart T, Ibrahimou B, Williams OD, Baum MK. Cocaine Use and Liver Disease are Associated with All-Cause Mortality in the Mia mi Adult Studies in HIV (MASH) Cohort. J Drug Abuse. 2016;2(4):1-21. doi: 10.21767/2471-853X.100036.

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9. Rock JA, Acuña JM, Lozano JM, Martinez IL, Greer PJ, Brown DR, Brewster L, Simpson JL. Health impact of an academic community partnership for medical education: Evaluation of a novel student-based home visitation program. South Med J. 2014 Apr; 107(4):203-11. doi: 10.1097/SMJ.0000000000000080.
8. Parsons M, Campa A, Lai S, Li Y, Martinez JD, Murillo J, Greer PJ, Martinez SS, Baum MK. Effect of GSTM1Polymorphism on Disease Progression and Oxidative Stress in HIV Infection: Modulation by HIV/HCV CoInfection and Alcohol Consumption. J AIDS Clin Res. 2013 Aug 31;4(9):10002337. doi: 10.4172/21556113.1000237.
7. Fogel R, Rams H, Greer PJ, Jacobs M, Plasencia G, Gomez E, De Fogel JF. Investigating the Safety of Weight Reduction Via Endoluminal Vertical Gastroplasty – A U.S. Pilot Study with 6 Months Follow-Up. Gastrointestinal Endosc. 2008 Apr;67(5): S1478. doi: 10.1016/j.gie.2008.03.293.
6. Schultz JM, Greer PJ, LaLota M, Garcia LM, Valverde E, Collazo R, Waters M, McCoy CB. HIV seroprevalence and risk behaviors among clients attending a clinic for the homeless in Miami/Dade County, Florida, 1990-1996. Popul Res Policy Rev. 1999;18:357-372. doi: 10.1023/A:1006232827339.
5. Fournier AM, Tyler R, Iwasko N, LaLota M, Shultz J, Greer PJ. Human Immunodeficiency virus among the homeless in Miami: A new direction for the HIV Epidemic. Am J Med. 1996 May;100(5):582-584. doi: 10.1016/S00029343(95)000194.
4. Fournier AM, Perez-Stable A, Greer PJ. Lesson From a Clinic for the Homeless: The Camillus Health Concern. JAMA 1993;270(22):2721-2724. doi: 10.1001/jama.1993.03510220077038
3. Greer PJ, Lacayo L, Reiner DK, Smoak WM, Barkin JS. The rim sign: the ghostly portender of acute cholecystitis. Am J Gastroenterol. 1992 May;87(5):627-9.
2. Schultz J, Greer PJ, et al. Characteristic and Risk Behavior in Homeless Black Male Seeking Service from the Community Homeless Assistance Plan – Dade County, Florida, August 1991. MMWR Morb Mortal Wkly Rep. 1991 Dec 20;40(50): 865-868.
1. Hasan FA, Jeffers LJ, Dickinson G, Otrakji CL, Greer PJ, Reddy KR, Schiff ER. Hepatobiliary Cryptosporidiosis and Cytomegalovirus Infection Mimicking Metastatic Cancer to the Liver. Gastroenterology 1991;100:1743-1748.

INVITED EDITORIALS, SOLICITED PERSPECTIVES, COMMENTARIES & LETTERS

7. Greer PJ. Who is Accountable for Society’s Health? Implications for Future Directions. Journal on Anchor Institutions and Communities 2016;1:52-55. Available at: https://www.margainc.com/wpcontent/uploads/2017/05/AITF_Journal_2016_Vol_1.pdf

6. Greer PJ. Perspective: Medical Education – A Focus on Social Accountability. Minnesota Health Care News 2016 May;14(5):8. Available at: https://issuu.com/mppub/docs/mn_healthcare_news_may_2016.

5. Greer PJ. Editorial: Is Health Reform Dead? USA Today 1994 Jun 2.

4. Greer PJ. La Salud Como David Y Goliat. El Nuevo Herald 1993 Dec 1.

3. Greer PJ. Op/Ed: Homelessness. Miami Herald 1993 Sept 26.

2. Greer PJ. A Letter from Homestead, Florida. The Courtland Forum 1992 Nov:138-144.

1. Greer PJ. Editorial: Homelessness and Children. International Pediatric Journal 1991;6(30):249.

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BOOKS
2. Greer PJ, with Balmaseda L. Waking up in America: How One Doctor Brings Hope To Those Who Need It Most. Paperback. New York, NY: Touchstone; 2001.
1. Greer PJ, with Balmaseda L. Waking up in America: How One Doctor Brings Hope To Those Who Need It Most. Hardcover. New York, NY: Simon & Schuster Publishing; 1999.
BOOK CHAPTERS
3. Greer PJ, O’Connell JK. Hepatitis C Virus. In: O’Connell JK, Swain SE, Daniels CL, Allen JS, eds. The Health Care of Homeless Persons: A Manual of Communicable Diseases & Common Problems in Shelters & on the Streets. Boston, MA: The Boston Health Care for the Homeless Program, Guthrie Nixon Smith Printers; 2004:41-46.
2. Moreno MD, Jose N, Greer PJ. Co-infection with Hepatitis B & C. In: Steinhart CR, Orrick JJ, Simpson K, eds. HIV/AIDS Primary Care Guide. Gainesville, FL: Florida AIDS Education and Training Center; 2002.
1. Greer PJ, Munhall PL. The Culture of Poverty and Backyard Efforts. In: Munhall PL, Fitzsimons V, eds. The Emergence of Women in the 21st Century. Sudbury, MA: Jones & Bartlett; 1995: 75-83.
ABSTRACTS AND POSTERS
25. Lage OG, Esposito K, Bonnin R, Raventos V, Naranjo M, Li Y, Whisenant E, Brown D, Greer PJ. Utilizing Service Learning to Assess Students Perceptions of Interprofessional Teams (Follow-Up). Poster presentation at the: AMA Accelerating Change in Medical Education Consortium , Spring Conference; April 2018; Providence, RI.
24. Lage OG, Esposito K, Bonnin R, Raventos V, Naranjo M, Li Y, Whisenant E, Brown D, Greer PJ. Utilizing Service Learning to Assess Students Perceptions of Interprofessional Teams. Poster presentation at the: AMA Accelerating Change in Medical Education Consortium , Spring Conference; April 2017; Providence, RI.
23. Lage OG, Raventos V, Naranjo M, Bonnin R, Esposito K, Whisenant E, Brown D, Greer PJ. Longitudinal Interprofessional Assessment Tools for NeighborhoodHELP®. Poster presentation at the: AMA Accelerating Change in Medical Education Consortium, Spring Conference; March 2017; Scottsdale, AZ.
22. Whisenant E, Lage OG, Brown D, Greer PJ. Teaching Household Centered Care, Interprofessional Teamwork and Social Accountability through a Longitudinal Service Learning Curriculum. Innovation Oral Presentation at: Learn, Serve Lead: The 2016 AAMC Annual Meeting; November 2016; Seattle, Washington.
21. Brewster L, Greer PJ, Brown DR, Fluney E, Ryan GW, Lacroix S, Stewart A, Bendaña H. Social Determinants of Health Specialists: The role of community-based organizations in the household-centered care approach. The Beyond Flexner Conference; September 16, 2016; Miami, FL.
20. Lage OG, Whisenant E, Chonin A, Farnsworth B, Brown DR, Greer PJ. Florida International University Herbert Wertheim College of Medicine: Teaching social determinants of health through community immersion, reflection, and diverse interprofessional student teams. AMEE 2016 (abstract); August 16, 2016.
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19. Garba NA, Lage OG, Whisenant E, Wells A, Brown DR, Anderson F, Brewster L, Pedoussaut M, Greer PJ. NeighborhoodHELP® Linking Communities and Primary Care with a Focus on the Social Determinants of Health, Household-Centered Care, and Community Partnerships. Bringing Public Health & Primary Care Together: The Practical Playbook National Meeting; May 22-24, 2016.
18. Lage OG, Esposito K, Brown D, Whisenant E, Greer PJ, Rock J. Innovation in Education and Healthcare Delivery: Herbert Wertheim College of Medicine. Poster presentation at: AMA Accelerating Change in Medical Education Consortium, Spring Conference; March 2016; Hershey, PA.
17. Brown D, Brewster L, Towe V, Chen P, Valdez L Ta A, Metula A, Camps Romero E, Rockowitz E, Ryan G, and Greer PJ. Evaluation framework for a new model of integrated sociomedical outreach at Florida International University. Poster Presented at 45th Annual Urban Affairs Association Conference. Miami, FL, April 10, 2015
16. Stewart T, Campa A, Fleetwood C, Li Y, Martinez SS, Ramamoorthy V, Ibrahimou B, Greer PJ, Murillo J, Sherman KE, Baum MK. Bacterial translocation, oxidative stress, the fibrogenic cytokine TGF-β1 and liver fibrosis in a subset of the Miami Adult Studies on HIV (MASH) cohort. Poster presented at: HIV & Liver Meeting; Sept 18-20, 2014; Jackson Hole, WY.
15. Martinez SS, Campa A, Sherman K, Li T, Li Y, Murillo J, Greer PJ, Stewart T, Ramamoorthy V, Dizon K, Fleetwood C, Baum MK. Low plasma zinc is associated with higher mitochondrial DNA 8-hydoroxyguanosine (8-oxo-dG) and faster liver fibrosis in the Miami adult studies in HIV (MASH) Cohort. Poster presented at: HIV & Liver Meeting; Sept 18-20, 2014; Jackson Hole, WY.
14. Baum MK, Martinez S, Sherman K, Williams O, Li Y, Greer PJ, Murillo J, Stewart T, Fleetwood C, Ramamoorthy V, Dizon K, Alvarado G, Sneji A, Seminario L, Charlesworth A, Campa A. Association of hepatocyte apoptosis and cocaine use in the Miami adult studies in HIV (MASH) cohort. Poster exhibition at: 20th International AIDS Conference; July 2025, 2014; Melbourne, Australia.
13. Campa A, Martinez SS, Sherman K, Li Y, Greer PJ, Murillo J, Stewart T, Fleetwood C, Ramamoorthy V, Alvarado G, Sneji A, Seminario L, Charlesworth A, Baum MK. Heavy Alcohol Use is Associated with Hepatocyte Apoptosis in the Adult Studies in HIV (MASH) Cohort. Poster exhibition at: 20th International AIDS Conference; July 20-25, 2014; Melbourne, Australia.
12. Baum MK, Sherman KE, Martinez SS, Greer PJ, Stewart T, Jacobs C, Luisi S, Dizon K, Campa A. Microbial Translocation, Immune Activation, Apoptosis and Liver Fibrosis in the MASH Cohort. Poster presented at: International Antiviral Society—USA, 2014 Conference on Retroviruses and Opportunistic Infections, Session P-Q6; March 5, 2014; Boston, MA.
11. Nowakowski L, Perez-Stable A, Anderson F, Brown D, Greer PJ, Rock JA. The Green Family Foundation NeighborhoodHELP® Mobile Health Center: Training Future Health Care Professionals and Caring for Communities. Poster for Annual Mobile Health Clinics Forum/ Mobile Health Clinics Association. September 14-17, 2013 in Palm Springs, CA.
10. Martinez, IL, Brewster L, Brown DR, Greer PJ. Medicine & Society: Bringing Back Social Medicine to Change medical Education for the Better. Poster presented at the 109th Annual Meeting of the American Anthropological Association, New Orleans, LA, November 20, 2010.
9. Brown D, Greer PJ, Brewster L, Martinez I, Acuña J, Perez-Stable A, Harvin V, Simpson JL, and Rock JA. A New Model of Interdisciplinary Medical Education. Poster presented at: The American Board of Internal Medicine Foundation 2010 Forum; August 2010.
Greer PJ. 19

Case 1:20-cv-21457-KMW Document 3-14 Entered on FLSD Docket 04/05/2020 Page 31 of 31
8. Brown DR, Brewster L, Martinez I, Greer PJ, Perez-Stable A, Harvin V, Acuña J, Martin P, Mora C, Holder C, Botelho R, and Rock JA. A new model of community engaged medical and interdisciplinary education. Poster presented at the 36th annual STFM Predoctoral Education Conference; January 2010; Jacksonville, FL. 7. Greer PJ, Calmet FH, Edelstein M, Dickinson G, Klimas N, Soroka S, Baltodano L, Garrett B, De Medina M, Hill M, LaRue S, Schiff ER. Abstract: Prevalence of Hepatitis and Retrovirus among the Homeless of the City of Miami, Florida. Hepatology 1992;16(4 suppl; no. 2, pt. 2):203A(#635). 6. Greer PJ, Lacayo L, Reiner D, Barkin J. Abstract: Significance of a RIM sign in Patients with Cholecystitis. Am J Gastroenterol. May 1990. 5. Greer PJ, Erhinger G. Homelessness Health Care in a Multi-Service Clinic. Abstract & poster presented at: AAMS Annual Convention; April 1990; Washington, DC. 4. Greer PJ, Dickinson G, Holmes R, et al. HIV Seropositivity in a Homeless Clinic. Abstract & oral presentation at: 5th International AIDS Conference; June 5, 1989; Montreal, Canada. 3. Jeffers L, Hassan F, Greer PJ. Intrahepatic Stones in Primary Sclerosing Cholangitis. Abstract presentation at: International Liver Conference; June 1989; Geneva, Switzerland. 2. Greer PJ, O'Connell M, Perez-Stable A. Teaching Ambulatory Medicine at a Homeless Clinic. Poster & abstract presented at: AAMS Southeastern Regional Meeting; February 1988; Miami, FL. 1. Greer PJ, Gelbard M. Metastatic Carcinoid presenting as Chylous Ascites and masquerading as Retractile Mesenteritis. J FL Medical Association 1986;73(12).
OTHER PUBLICATIONS 5. Greer PJ. Healing The Homeless. The Peoples Journal: The Official Publication of Sociology-Anthropology of Florida International University 1992 Spr;5:76. 4. Greer, PJ. Medical Problems of the Homeless: Consequences of Lack of Social Policy-A Local Approach. U. Miami L. Rev. 1991;45(2):407-416. Available at: http://repository.law.miami.edu/umlr/vol45/iss2/7 3. Greer PJ. Indigent Care. Miami Medicine 1990 Aug:21(8):9. 2. Greer PJ. America’s New Homeless. Miami Medicine 1989 Feb;20(2):19-22. 1. Greer PJ, Castellanos D, Llanso R, Alvarez M. Prevalence of Positive Titers to Toxoplasmosis gondii in Pregnant Women. Doctoral Thesis. Santiago de los Caballeros, Dominican Republic; Jose Maria Cabral and Baez Hospital; 1984.
Greer PJ. 20

 
 Case 1:20-cv-21457-KMW Document 11 Entered on FLSD Docket 04/05/2020 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 1:20-cv-21457

ANTHONY SWAIN, et al., Plaintiffs, v.
DANIEL JUNIOR, et al., Defendants. / NOTICE OF FILING DECLARATION OF DR. FRED ROTTNEK
Plaintiffs, by and through undersigned counsel, hereby give notice of the filing of the Declaration of Dr. Fred Rottnek in support of their Emergency Motion for Temporary Restraining Order and Preliminary Injunction [ECF No. 2].

Date: April 5, 2020

Respectfully submitted,
/s/ Quinn Smith R. Quinn Smith, Fla. Bar No. 59523  e-mail: quinn.smith@gstllp.com  Katherine Alena Sanoja, Fla. Bar No. 99137  e-mail: katherine.sanoja@gstllp.com  GST LLP  1111 Brickell Avenue, Suite 2715  Miami, Florida 33131  Telephone: (305) 856-7723 
/s/ Meena Jagannath Meena Jagannath, Fla. Bar No. 102684 meena@communityjusticeproject.com COMMUNITY JUSTICE PROJECT 3000 Biscayne Blvd. Ste 106 Miami, Florida 33137

Case 1:20-cv-21457-KMW Document 11 Entered on FLSD Docket 04/05/2020 Page 2 of 3
Telephone: (305) 907-7697
/s/ Maya Ragsdale Maya Ragsdale, Fla. Bar No.: 1015395 maya@dreamdefenders.org DREAM DEFENDERS 6161 NW 9th Ave. Miami, Florida 33127 Tel: 786-309-2217
/s/ Alexandria Twinem Alexandria Twinem, D.C. Bar No. 1644851 Pro Hac Vice Admission Pending alexandria@civilrightscorps.org Katherine Hubbard, DC Bar No. 1500503 Pro Hac Vice Admission Pending katherine@civilrightscorps.org CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 2009 Telephone: (202) 894-6126
/s/ Tiffany Yang Tiffany Yang, DC Bar. No. 230836 tyang@advancementproject.org Pro Hac Vice Admission Pending Thomas B. Harvey, MO Bar. No. 61734 Pro Hac Vice Admission Pending tharvey@advacementproject.org ADVANCEMENT PROJECT 1220 L Street NW, Ste 850 Washington, DC 20005 Telephone: (202) 728-9557
Attorneys for Plaintiffs

Case 1:20-cv-21457-KMW Document 11 Entered on FLSD Docket 04/05/2020 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that on April 5, 2020 I electronically filed the foregoing with the clerk of the court for the U.S. District Court, Southern District of Florida, using the electronic case filing system of the Court. This Notice of Filing and its attachments will be served in accordance with the Federal Rules of Civil Procedure.
/s/ Katherine A. Sanoja Katherine A. Sanoja, Fla. Bar. 99137

Case 1:20-cv-21457-KMW Document 11-1 Entered on FLSD Docket 04/05/2020 Page 1 of 9

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

ANTHONY SWAIN; ALEN BLANCO; BAYARDO CRUZ; RONNIEL FLORES; WINFRED HILL; DEONDRE WILLIS; PETER BERNAL, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
DANIEL JUNIOR, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department; MIAMIDADE COUNTY, FLORIDA,

Case No. 1:20-cv-21457 Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief Class Action
IMMEDIATE RELIEF SOUGHT

Defendants.

Declaration of Dr. Fred Rottnek
I. Background and Qualifications
1. My name is Fred Rottnek, MD, MAHCM, a Professor of Medicine in the Saint Louis University School of Medicine, Professor in the Physician Assistant Program at the Doisy College of Health Sciences, and Professor in the Center for Health Law Studies in the School of Law. I am the Director of Community Medicine in the Department of Family and Community Medicine and the Program Director of the Addiction Medicine Fellowship. I am board-certified in Family Medicine and Addiction Medicine, and I am a certified Correctional Health Care Physician through the National Commission on Correctional Health Care.
2. I am a board-certified family physician and certified correctional health care physician with over 15 years of experience practicing correctional health care in Saint Louis County, Missouri.

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3. I was the lead physician and medical director of the Saint Louis County Jail from June 2001 through September 2016. In this role, contracted through the Saint Louis County Department of Health, I saw patients three days/week, took call on average 16 days/month, and participated in the leadership teams that were responsible for the health and well-being of inmates, correctional medicine staff, correctional staff, and visitors to the jail, which is located in the Buzz Westfall Justice Center as well as Juvenile Detention in the Family Courts of Saint Louis County.
4. As a large urban jail, during my years in this role, I was responsible for directing the medical care and supporting the correctional medicine staff in the care of a daily census of patients that varied from 900 to 1400, as well as annual intake screenings of 30,000 to 34,000 arrestees. The Saint Louis County Jail was (and is) the only jail in the State of Missouri that meets standards for accreditation by the American Correctional Association. Juvenile Detention is accredited by the National Commission on Correctional Health Care.
5. My bio, attached as Exhibit A, includes a brief description of my education and relevant experience.
6. My C.V., attached as Exhibit B, has a full list of my honors, experience, and publications.
7. I am donating my time reviewing materials and preparing this report. Any live testimony I provide will also be provided pro bono.
8. I have testified as an expert at trial or by deposition once in the past 3 years.
9. This declaration is similar to a letter I wrote to the Supreme Court of Missouri stating the threat COVID-19 posed to inmates in prisons and jails, detailing the impossibility of jails and prisons meeting the Center for Disease Control’s guidelines, supporting the release of medically vulnerable people.
II. Heightened Risk of Epidemics in Jails and Prisons
10. Based on my review of information from the CDC, National Commission on Correctional Health Care (NCCHC), and the National Institute of Corrections (NIC) on COVID-19, my experience working in primary care and public health in both jail and juvenile detention settings, and my review of the relevant medical literature, it is my professional judgment that the COVID-19 pandemic has the potential to devastate the lives of both incarcerated individuals and jail personnel, and result in a medical emergency that could overwhelm local medical infrastructure.
11. An outbreak in any jail or prison will affect all of Florida. Jails and prisons do not exist in isolation. Staff, contractors, vendors, and visitors regularly pass between communities and facilities, thereby carrying infectious disease both into and out of these facilities. The rapid turnover of jail and prison populations means that people often cycle between facilities and their local community. Even in times of limited visitation and movement,
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inmates will still need to be transported to and from facilities to attend court, move between facilities, and be released upon serving their sentence.
12. This poses a grave threat to the health and safety of Floridians, as an outbreak in a jail or prison could limit the ability of health professionals to contain, mitigate, and treat the spread of COVID-19. In my professional opinion, jails and prisons are particularly underequipped and ill-prepared to prevent and manage a COVID-19 outbreak, which I will detail further in the following points.
III. Jails and Prisons Cannot Implement Adequate Prevention, Containment, and Mitigation Strategies
13. COVID-19 is a highly infectious and easily communicable disease.1 The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing), but survives on inanimate surfaces for up to three days. The latest medical information indicates people are most contagious when they are actively symptomatic, but it is still possible that people can transmit the virus before they start to show symptoms or for weeks after their symptoms resolve. The CDC recommends people maintain a distance of 6 feet between them and anyone else in order to avoid contact with the disease.
14. COVID-19 prevention strategies necessitate both containment and mitigation. Containment requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill. Moreover, the use of appropriate personal protective equipment (PPE) is necessary for those tasked with decontaminating surfaces and interacting with potentially infected individuals.2 The CDC recommends mitigation strategies such as social distancing and closing communal spaces (schools, workplaces, etc.) to protect those most vulnerable to disease.3
15. Jails and prisons are unable to adequately implement containment strategies. During an infectious disease outbreak, most people can protect themselves by washing their hands. Unfortunately, inmates have limited opportunities to clean themselves, shower, or wash hands while incarcerated. Many jails and prisons charge inmates money for hand soap or other personal hygiene products. Most facilities also ban the use of alcohol-based antibacterial hand sanitizer. Further, under CDC guidance, high-touch surfaces (doorknobs, light switches, etc.) should be cleaned and disinfected several times a day with bleach or other approved cleansers, and the cleaner should use disposable gloves to prevent virus spread.4 That said, many jails and prisons place limitations on the amount of cleaning supplies available to inmates, and also have insufficient staff available to clean, particularly during a public health pandemic like this. Spaces within jails and
1 Coronavirus (COVID-19), CDC, https://www.cdc.gov/coronavirus/2019-ncov/index.html. 2 Id. 3 Id. 4 Disinfecting Your Facility if Someone is Sick, CDC, https://www.cdc.gov/coronavirus/2019ncov/prepare/disinfecting-building-facility.html
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prisons are often also poorly ventilated and share HVAC systems, which facilitates and accelerates the spread of diseases through droplets.
16. Jails and prisons are also unable to practice effective mitigation strategies. Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person-to-person.5 When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are far greater than normal. As such, when jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. The CDC suggests that jails and prisons implement social distancing strategies such as staggering meals, moving all bunks six feet apart, and limiting the distance inmates need to be transported to access medical care.6 From my professional experience, these distancing strategies will be difficult if not impossible for most Florida jails and prisons to implement.
17. The latest guidance from the CDC suggests that jails and prisons have a long list of hygiene supplies, cleaning supplies, PPE, and medical supplies on hand and available.7 For example, the CDC recommends facilities provide liquid soap, as harsh bar soap can irritate the skin and reduce handwashing. The CDC also recommends jails and prisons have enough face masks to require every individual displaying COVID-19 symptoms to wear one. In my professional experience, it is unlikely most Florida jails and prisons have or reasonably could obtain the required supplies to comply with this guidance.
IV. Jails and Prisons Cannot Adequately Treat Those Infected
18. To prevent transmission of droplet-borne infectious diseases, people who are infected and symptomatic should be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms and, in my experience, many jails and prisons have none. This makes both containing the illness and caring for those who have become infected much more difficult.
19. In my opinion, administrative or disciplinary segregation, or solitary confinement, of those who may be infected is not an effective disease containment strategy. The detrimental mental health effects of solitary confinement are well-known.8 Studies show the isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death.9 Solitary isolation is also an ineffective way to prevent transmission of the virus to others, because of the aforementioned lack of
5 Active Case Finding for Communicable Diseases in Prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext 6 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, CDC (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html (hereinafter CDC Interim Guidance). 7 Id. 8 David H. Cloud, et al., Public Health and Solitary Confinement in the United States, 105 Am. J. Pub. Health 18, 18 (2015). 9 Metzner & Fellner, Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics, 38 J. Am. Academy Psychiatry and Law 104–108 (2010).
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negative pressure rooms, and because correctional staff will still have to come into close proximity to check on these individuals. Moreover, placing inmates in solitary confinement will place a greater burden on already limited staff and resources. Per NCCHC guidelines, correctional facilities are responsible for meeting the medical and mental health needs of people in solitary or restrictive housing--particularly those with acute medical and mental health needs--which includes regular access to medicine and mental health treatment.10 Put simply, solitary confinement will not solve the problem.
20. During an infectious disease outbreak, a containment strategy requires that caregivers for people who are ill must have access to adequate PPE supplies. According to NCCHC guidance, jails and prisons must have adequate PPE, including gloves, masks, and respirators, eye protectors, gowns, uniforms and shoe covers.11 In my experience, jails and prisons are already under-equipped with medical supplies. A pandemic only exacerbates the shortage. These institutions just simply do not have sufficient PPE for increasing cases of COVID-19 among people who are incarcerated and staff who are required to care for those people, increasing the risk for everyone in the facility of a widespread outbreak.
21. Jails and prisons are often poorly equipped to diagnose infectious disease outbreaks. Most jails and prisons lack urgent or emergent access to testing equipment, laboratories, and ventilators, which means that they will be slow to adequately diagnose and address the outbreak.
22. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. It is unlikely jails or prisons will have adequate staff or PPE to safely transport individuals to these facilities, and guard the individuals while there. It can also create tremendous liability for a jail or prison if there are infected inmates and those outside facilities are over capacity.
V. A COVID-19 Outbreak in a Jail or Prison Creates Dangerous Staffing Shortages
23. Absenteeism can pose a substantial safety and security risk. As an outbreak spreads through jails, prisons, and communities, medical personnel and correctional staff will become sick and stop reporting to work. There is a physical limit to how much overtime other correctional staff can work to make up for lost employees.
24. In my experience, jails and prisons are already dangerously understaffed both in terms of correctional healthcare providers and correctional staff.12 Many jails and prisons do not have 24 hour on-site health professionals. A shortage of doctors or nurses onsite will
10 Restrictive Housing in the U.S.: Issues, Challenges, and Future Directions, National Institute of Justice, https://www.ncjrs.gov/pdffiles1/nij/250321.pdf (Nov. 2016). 11 Covid-19 Coronavirus: What You Need to Know in Corrections, NCCHC, https://www.ncchc.org/covidresources. 12 See, e.g., Kurt Erickson, Parson Calls for More Downsizing in Missouri Prison System, St. Louis Post-Dispatch (Jan. 20, 2020).
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impact the already limited ability to conduct testing, treat symptoms, and recommend care for sick individuals. Further, as health systems inside facilities are taxed with COVID-19, people with other serious physical or mental health conditions may not be able to receive the medical care they need for these conditions.
25. A staffing shortage for correctional staff will greatly impact the ability of a facility to respond to a COVID-19 outbreak, as guards or supervisors need to facilitate prevention measures, transport inmates to medical, rearrange housing, and many other tasks. Moreover, a staffing shortage for correctional staff also creates an unacceptable general risk of danger to inmates and other staff members in a facility.
VI. Contagious Disease Outbreaks in Jails and Prisons is a Public Health Nightmare
26. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more acute than in the community at large. In my experience, past epidemics have taken a greater toll on jails and prisons even when the outbreak is of a disease with available vaccines and medication. For example, during the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases. In 2002, an outbreak of MRSA in a Missouri prison caused significant health problems.13 And currently, jails and prisons across the United States are experiencing COVID-19 outbreaks. In New York, thirty-eight inmates in Rikers Island have tested positive for COVID-19, and officials report they expect the numbers to rise exponentially.14
27. To deal with a pandemic, society at large can increase resources and take emergency measures, like adding hundreds of hospital beds in a new facility. Jails and prisons have real and hard limitations of space, staffing, and supplies. It is unlikely most facilities will be able to reasonably put into place sufficient resources to address an outbreak.
VII. Risk of COVID-19 in the Metro West Detention Center
28. In preparing this report I have reviewed the declarations of the Plaintiffs in this case.
29. Based on my professional experience, my review of the relevant literature, and my review of the Plaintiffs’ declarations it is my professional judgment that the Metro West Detention Center (“Metro West”) is under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, which would result in severe harm to detained individuals, jail staff, and the broader community. The reasons for this conclusion are detailed as follows.
13 Tyrabelidze, et al. Personal Hygiene and Methicillin-resistant Staphylococcus aureus Infection, 12 Emerg. Infect. Dis. 422. 14‘Katie Shepherd, Trapped on Rikers’: Jails and prisons face coronavirus catastrophe as officials slowly authorize releases, Washington Post (Mar. 23, 2020), https://www.washingtonpost.com/nation/2020/03/23/coronavirus-rikersisland-releases/.
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30. Plaintiffs state that at Metro West, common areas and high-touch surfaces are cleaned using diluted cleaning products only at “shift change,” or every eight hours. Failure to properly sanitize common areas and high-touch surfaces such as the phones that detained individuals heavily use, seriously increases the risk of the spread of COVID- 19 and demonstrates the failure to take the most fundamental precautions for preventing the spread of the disease.
31. Plaintiffs are held in dormitory-style cells, some with upwards of 60 people per cell, and sleep on bunk beds with just a few feet of distance between them. Given this layout and crowded environment in which individuals are held, it is impossible to provide an environment where social distancing can take place, depriving individuals of being able to use one of the most important CDC-recommended measures to protect themselves.
32. Even before the COVID-19 crisis, Plaintiffs attested to having to wait several days to have access to a medical doctor for serious medical concerns. Now, with the threat of the virus’ spread through the jail population, it is questionable whether the jail medical unit is equipped to address both underlying chronic conditions of individuals and a potential outbreak of COVID-19 in the jail.
33. For individuals in these facilities, the experience of an epidemic and the lack of care while effectively trapped can itself be traumatizing, compounding the trauma of incarceration.
34. The neglect of individuals with acute pain and serious health needs under ordinary circumstances is also strongly indicative that the facilities will be ill-equipped to identify, monitor, and treat a COVID-19 epidemic. Plaintiffs’ declarations attest to neglect of their serious medical conditions even under typical circumstances. It is unlikely that when the medical unit is strained both due to potential understaffing or additional burden from potential COVID-19 patients that it will be able to provide the care necessary for those with medical needs caused by conditions other than COVID- 19.
35. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected. Plaintiffs and others held in the jail have serious medical vulnerabilities, including diabetes, asthma, HIV and other respiratory conditions. An outbreak in Metro West would be disastrous for plaintiffs and everyone in the jail.
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VI. Recommendations
36. For the reasons above, it is my professional judgment that individuals placed in the Metro West Detention Center are at a significantly higher risk of infection with COVID19 as compared to the population in the community, given the procedural and housing conditions in the facilities, and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death.
37. Reducing the size of the population in jails and prisons is crucially important to reducing the level of risk both for who both are housed and work within those facilities and for the community at large.
38. From a public health perspective, it is my strong opinion that there is no way short of release to protect the medically vulnerable from grave risk of imminent infection and death.
39. All jails and prisons should immediately implement robust training for correctional health staff, correctional staff, and all inmates to make sure the symptoms, risks, and strategies for COVID-19 are known. This should include adequate signage. This training and education should be understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
40. Anyone remaining in a jail or prison should be given access to free medical care and all available testing for COVID-19.
41. Anyone remaining in a jail or prison should be regularly evaluated with temperature checks and other inquiries to identify COVID-19 cases.
42. All detention facilities need to adopt and require adequate sanitation practices that comply with CDC recommendations at no cost to inmates, including free provision of hand soap and adequate cleaning supplies to clean inmate cells and living areas daily. Facilities should also consider relaxing restrictions on alcohol based hand sanitizers in accordance with CDC guidelines.
43. All jails and prisons should implement shifts for inmate access to showers, phones, dining halls, etc., with regular sanitation between shifts.
44. All detention facilities should avoid complete isolation of inmates whenever possible. But, if a part of any COVID-19 containment or response strategy involves isolation of inmates, the detention facility must acknowledge this requires increased monitoring of inmate safety, inmate mental health, and suicidality wellness checks, and increase staffing accordingly;
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45. All jails and prisons need to have written policies and protocols in place to capture the above recommendations.
I declare under penalty of perjury that the foregoing is true and correct to the best of my ability.

Name

April 4, 2020 Date

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 Case 1:20-cv-21457-KMW Document 17 Entered on FLSD Docket 04/06/2020 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 1:20-cv-21457

ANTHONY SWAIN, et al., Plaintiffs, v.
DANIEL JUNIOR, et al., Defendants. / NOTICE OF FILING DECLARATION OF DR. ARMEN HENDERSON
Plaintiffs, by and through undersigned counsel, hereby give notice of the filing of the Declaration of Dr. Armen Henderson in support of their Emergency Motion for Temporary Restraining Order and Preliminary Injunction [ECF No. 3].

Date: April 6, 2020

Respectfully submitted,
/s/ Quinn Smith R. Quinn Smith, Fla. Bar No. 59523  e-mail: quinn.smith@gstllp.com  Katherine Alena Sanoja, Fla. Bar No. 99137  e-mail: katherine.sanoja@gstllp.com  GST LLP  1111 Brickell Avenue, Suite 2715  Miami, Florida 33131  Telephone: (305) 856-7723 
/s/ Meena Jagannath Meena Jagannath, Fla. Bar No. 102684 meena@communityjusticeproject.com COMMUNITY JUSTICE PROJECT 3000 Biscayne Blvd. Ste 106 Miami, Florida 33137

Case 1:20-cv-21457-KMW Document 17 Entered on FLSD Docket 04/06/2020 Page 2 of 3
Telephone: (305) 907-7697
/s/ Maya Ragsdale Maya Ragsdale, Fla. Bar No.: 1015395 maya@dreamdefenders.org DREAM DEFENDERS 6161 NW 9th Ave. Miami, Florida 33127 Tel: 786-309-2217
/s/ Alexandria Twinem Alexandria Twinem, D.C. Bar No. 1644851 Admitted Pro Hac Vice 4/6/2020 alexandria@civilrightscorps.org Katherine Hubbard, DC Bar No. 1500503 Admitted Pro Hac Vice 4/6/2020 katherine@civilrightscorps.org Alec Karakatsanis alec@civilrightscorps.org Pro Hac Vice Admission Pending CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 2009 Telephone: (202) 894-6126
/s/ Tiffany Yang Tiffany Yang, DC Bar. No. 230836 tyang@advancementproject.org Admitted Pro Hac Vice 4/6/2020 Thomas B. Harvey, MO Bar. No. 61734 Admitted Pro Hac Vice 4/6/2020 tharvey@advacementproject.org ADVANCEMENT PROJECT 1220 L Street NW, Ste 850 Washington, DC 20005 Telephone: (202) 728-9557
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on April 6, 2020 I electronically filed the foregoing with the clerk of the court for the U.S. District Court, Southern District of Florida, using the electronic case filing system of the Court. This Notice of Filing and its attachments will be served in accordance with the Federal Rules of Civil Procedure.
/s/ Katherine A. Sanoja Katherine A. Sanoja, Fla. Bar. 99137

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

ANTHONY SWAIN; ALEN BLANCO; BAYARDO CRUZ; RONNIEL FLORES; WINFRED HILL; DEONDRE WILLIS; PETER BERNAL, individually and on behalf of all others similarly situated,
Plaintiffs,

Case No. 1:20-cv-21457
Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief

v.

Class Action

DANIEL JUNIOR, in his official capacity as Director of the MiamiDade Corrections and Rehabilitation Department; MIAMI-DADE COUNTY, FLORIDA,

IMMEDIATE RELIEF SOUGHT

Defendants

Declaration of Dr. Armen Henderson

I. Background and Qualifications

1. My name is Armen Henderson. I am an Assistant Professor of Medicine at University of Miami, Miller School of Medicine, a Hospitalist on the frontline of the COVID-19 pandemic both at the University of Miami Hospital and in the community with the Dade County Street Response Homeless Relief Team. Throughout my life, I have been an advocate for poor and working-class individuals and I have continued this mission as a physician organizer with Dream Defenders.
2. My C.V. includes a list of my education, honors, experience, and publications, and it is attached as Exhibit A.
3. I am donating my time reviewing materials and preparing this report. Any live testimony I provide will also be provided pro bono.
4. I have not testified as an expert at trial or by deposition.
5. This declaration incorporates the findings in sworn declaration submitted by Dr. Jaimie Meyer, Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut, in

Case 1:20-cv-21457-KMW Document 17-1 Entered on FLSD Docket 04/06/2020 Page 2 of 13
federal court in New York. Dr. Meyer is board certified in Internal Medicine, Infectious Diseases and Addiction Medicine.
6. I have reviewed Dr. Meyer’s report, as well as the declaration of Dr. Pedro J. Greer. Based on my own training and background, I strongly agree with those analyses.
II. Jails and Prisons are uniquely vulnerable
7. The Institute for Crime and Justice Policy identifies that there are over 2.1 million persons incarcerated in the USA1, and as I will discuss below, there is a very high risk of infectious diseases in jails and prisons.
8. Infectious diseases have a greater impact within the walls of jails and prisons than outside those walls, due to the number of people held their, their proximity to one another and the downplaying of the health concerns and needs of people held there.
9. Outbreaks of contagious diseases occur frequently in jails and prisons. Even before COVID19, infectious disease accounted for 17.5% of prison deaths. 2 The higher background prevalence of infection contributes significantly to the high risks of COVID19 spread and dissemination in prisons.
10. Prisons and jails are not isolated from communities. The multiplicity of people passing in and out of the facilities increase the likelihood that disease can be passed to those held within.
11. Jails and prisons are under-resourced within in terms of equipment, personnel, and medications, and thus rely on hospitals to provide emergency or more resourceintensive care.
III. COVID-193
12. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by speaking, coughing or sneezing) but also survives on inanimate surfaces. Van Doremalen et al. evaluated the stability of SARS-CoV-2 and discovered that the virus is stable and viable on plastic and stainless steel up to 3 days (72 hours) after application to these surfaces, and up to 24 hours on cardboard, 4 hours on copper and for at least 3 hours by aerosol.4
1 WPB World Prison Brief. Highest to Lowest Prison Population Total https://www.prisonstudies.org/highest-tolowest/prison-population-total?field_region_taxonomy_tid=All 2 Yang H, Thompson JR. Fighting covid-19 outbreaks in prisons. BMJ. 2020 Apr 2;369:m1362. doi: 10.1136/bmj.m1362. 3 This whole section draws from Broks J. Global Epidemiology and Prevention of COVID19, COVID-10 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www.ncchc.org/blog/covid-19-coronavirus-what-you-need-to-know-in-corrections. 4 van Doremalen N, Bushmaker T, Morris DH, Holbrook MG, Gamble A, Williamson BN, Tamin A, Harcourt JL, Thornburg NJ, Gerber SI, Lloyd-Smith JO, de Wit E, Munster VJ. Aerosol and Surface Stability of SARS-CoV-2 as

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13. People seem to be most able to transmit the virus to others when they are sickest but recent data from China has demonstrated that nearly 13% of transmission arises from asymptomatic or presymptomatic individuals,5 and it is possible that transmission can continue for weeks after symptoms resolve.6,7 In China, where COVID-19 was first detected, the average infected person passed the virus on to 2-3 other people; with transmission being most frequent among those within a distance of 3-6 feet. Recent work at MIT shows that coughs, common to patients with COVID19 include not only droplets but also create turbulent clouds of pathogen-bearing droplets that are propelled much farther than if they were emitted in isolation without a turbulent puff cloud trapping and carrying them forward and travel 23 to 27 feet (7-8 m). Based on these data, even the recommended separations of 3 to 6 feet (1-2 m) underestimate the distance, timescale, and persistence over which the pathogenic clouds of SARS-CoV2 travel.8
14. Not only is the virus very efficient at droplet transmission, this is a new virus and until its emergence all humans were immunologically naïve, thus everyone is at risk of infection. There are multiple current efforts towards the development of a safe and effective vaccine, however such a vaccine is extremely challenging based on the natural history of coronaviruses, which have antibody mediated enhancement.9 It is thus, highly optimistic that there would be such a vaccine within the next two years and more likely it will take 2 to 5 years or longer before a vaccine is available for general public. New and old compounds are under investigation as antiviral medications10 but, none has yet achieved FDA-approved. People in prison and jail will likely have even less access to these novel health strategies as they become available.
15. Most people (80%) who become infected with COVID-19 will develop either a mild upper respiratory infection (35%) or a moderate ‘walking’ pneumonia (55%), while
Compared with SARS-CoV-1. N Engl J Med. 2020 Mar 17. doi: 10.1056/NEJMc2004973. [Epub ahead of print] https://www.nejm.org/doi/full/10.1056/NEJMc2004973?url_ver=Z39.882003&rfr_id=ori:rid:crossref.org&rfr_dat=cr_pub%3dpubmed 5 Du Z, Xu X, Wu Y, Wang L, Cowling BJ, Ancel Meyers L. Serial interval of COVID-19 among publicly reported confirmed cases. Emerg Infect Dis. 2020 Jun [date cited]. https://doi.org/10.3201/eid2606.200357 6 Lan L, Xu D, Ye G, Xia C, Wang S, Li Y, Xu H. Positive RT-PCR Test Results in Patients Recovered From COVID19. JAMA. 2020 Feb 27. doi: 10.1001/jama.2020.2783. [Epub ahead of print] https://jamanetwork.com/journals/jama/fullarticle/2762452 7 AN J, Liao X, Xiao T, Qian S, et al. Clinical characteristics of the recovered COVID-19 patients with re-detectable positive RNA test. 30 March 2020 https://doi.org/10.1101/2020.03.26.20044222 https://www.medrxiv.org/content/10.1101/2020.03.26.20044222v1.full.pdf 8 Bourouiba L. Turbulent Gas Clouds and Respiratory Pathogen Emissions Potential Implications for Reducing Transmission of COVID-19. JAMA insights. Published online March 26, 2020. doi:10.1001/jama.2020.4756 https://jamanetwork.com/journals/jama/fullarticle/2763852?appId=scweb&fbclid=IwAR31jq_syyGWphf0mzdJNmdm sdLLcIHM8WBlbey5CHbVj72dNzoZ-o2abu8 9 Tetro JA. Is COVID-19 receiving ADE from other coronaviruses? Microbes and Infection. March 2020; 22(2):72-73 https://www.sciencedirect.com/science/article/pii/S1286457920300344?via%3Dihub 10 Milken Institute. COVID-19 Treatment and Vaccine Tracker. https://milkeninstitute.org/sites/default/files/202003/Covid19%20Tracker_WEB.pdf?fbclid=IwAR3-v7etWwPb8qMb1AZpShZF68UaNpuKHuDFY7R4Ot0q5TOY9dvUWwSgV0

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20% present with either serious illness to critical illness11, and 1 to 3% die.12 The risk of serious illness and death increases with age, and in those with underlying health conditions, especially cardiovascular disease, hypertension, chronic lung disease, and diabetes.13 Among those individuals, the risk of poor outcomes, included the need for mechanical intervention is over 20%. Death in COVID-19 infection is usually results from ARDS, sepsis, and cardiomyopathy, and without medical intervention would kill approximately 3-4% of the population. The emergence of COVID-19 during influenza season contributed to many persons with dual infection with COVID19 and flu, and there are a significant number of persons with bacterial pneumonia and flu, particularly among those unvaccinated for influenza vaccine or pneumococcal vaccine. Dual infections with COVID19 are common, because SARS-CoV2 causes lymphopenia14 and increases a person’s susceptibility of other infections.
16. Treatment of those infected with COVID-19 depends on how they ill they are at presentation and how their disease progresses.15 People with mild or moderate symptoms may not require hospitalization but should be treated in isolation from others in a home or hotel room but without contact with others unless a care-provider if needed, and such a care-provider should wear personal protective masks and gloves. People with moderate symptoms may at times require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms or critical symptoms may require ventilation and intravenous meds. Public health officials anticipate that hospital settings will be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities.
17. Prevention is the best approach to this disease, and this is why cities and states around the country have put “shelter in place” orders into effect and strongly urged people to practice “social distancing.”
IV. Metro West Detention Center
18. In preparing this report I have reviewed the declarations of the Plaintiffs in this case and the declarations of Dr. Greer and Dr. Meyer.
11 WHO-China Joint Mission Report. 16-14 Feb 2020. https://www.who.int/docs/default-source/coronaviruse/whochina-joint-mission-on-covid-19-final-report.pdf 12 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/summary.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fsummary.html. 13 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study, The Lancel (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext. 14 Bermejo-Martin JF, Almansa R, Menendez R Mendez R, Kelvin DJ, Torres A. 28 Feb 2020 J Infect. 2020 Mar 5. pii: S0163-4453(20)30110-9. doi: 10.1016/j.jinf.2020.02.029. [Epub ahead of print] https://linkinghub.elsevier.com/retrieve/pii/S0163-4453(20)30110-9 15 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2002), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html.

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19. In my professional judgment, the Metro West Detention Center does not have the resources to avoid a COVID-19 outbreak. There is a heightened risk of an outbreak for those held at the jail, the corrections staff and the whose Miami community both because the conditions fail to prevent further transmission of the disease and because of the potential burden this places on the public health system broadly.
20. Failure to properly sanitize common areas and high-touch surfaces coupled with failure to provide sufficient amounts of soap (for multiple washings per day), and failure to provide hand-drying materials like paper towels that can be thrown away (otherwise people are forced to reuse dirty towels or wipe down their hands on their uniforms, not CDC-recommended), as well as failure to provide basic hygienic products like tissues, place the inmates and corrections staff at high risk for COVID-19.
21. Failure to provide sufficient masks to staff or those held puts the staff at risk of infection from the people detained, and the people detained are placed at risk from presymptomatic and asymptomatic staff. Given the changing information about the transmission of COVID-19 and the possibility of it being airborne, especially in enclosed spaces, it is now advised that those in direct contact wear N95 masks. If this is not provided, the entire population and staff are at risk of being infected.
22. The jail is unable to provide an environment where social distancing is possible due to the proximity of the bunk beds both side by side and on top of each other, even while detained persons have alleged that there are multiple people coughing and present in the same cell.
23. The delays in access to care are concerning. Based on the plaintiff’s description that at Metro West they are asked to fill out a medical slip and then wait days before they see someone, even when they are exhibiting symptoms that suggest COVID-19 infection. This can prove to be deadly to those needing medical care as the virus causes rapid decline in function, especially in those with pre existing conditions.
24. People held in detention have an increased risk of death due to infection due to an inability to attend to any chronic conditions they may have. Many of these individual may also end up needing critical care and having to be transferred to Jackson Memorial Hospital, already overcrowded with critically ill patients.
25. Inadequate screening and testing procedures in facilities increase the widespread COVID-19 transmission both in the jail and outside in the community placing the publics health at great risk.
26. The neglect of individuals with acute pain and serious health needs under ordinary circumstances is also strongly indicative that the facilities will be ill-equipped to identify, monitor, and treat a COVID-19 epidemic.
V. Conclusion and Recommendations

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27. In my professional judgment, those held in detention at Metro West Detention Center are at a heightened risk of contracting COVID-19, and are also at a higher risk of severe harm if they do contracted the disease.
28. A reduction in the size of the population in jails and prisons is a key step to reducing the level of risk both for who both are housed and work within those facilities and for the community at large. On 30 March, the Daily Eagle reported that, roughly 3.6 percent of the city jail population has tested positive for COVID-19, noting that at least 167 inmates and 114 jail staffers were positive for COVID19.16 Given the epidemiological estimates we have seen in the community, these numbers have likely grown exponentially.
29. From a public health perspective, it is my strong opinion that individuals who can safely and appropriately remain in the community not be placed in the Metro West Detention Center at this time. I am also strongly of the opinion that individuals who are already in those facilities should be evaluated for release, and that a careful evaluation of procedural and housing guidance is created for those who remain in the facilities during the “stay at home” mandate, and possibly until the epidemic is contained.
30. Release is even more important for those individuals with preexisting conditions (e.g., heart disease, chronic lung disease such as asthma or bronchitis, chronic liver disease, suppressed immune systems due to conditions such as HIV, cancer, and diabetes) or who are over the age of 60.17 Their continued detention puts their health at greater risk and they run a meaningfully higher risk of death.
31. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in these facilities is a matter of days, not weeks.
32. Public health does not stop at the jail or prison’s walls. The health of those held in jails and prisons should be a concern to the whole community – if we do not protect their health, we are putting the whole community’s health at risk.
16 Brand D. At least 167 NYC inmates, 114 jail staffers now have COVID-19 March 30, 2020. The Daily Eagle. https://queenseagle.com/all/2020/3/30/at-least-167-nyc-inmates-114-jail-staffers-now-have-covid-19 17 Report of the WHO-China Joint Mission of Coronavirus Disease 2019 (COVID-19) (Feb. 16-24 2020), available at https://www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf.

Case 1:20-cv-21457-KMW Document 17-1 Entered on FLSD Docket 04/06/2020 Page 7 of 13 I declare under penalty of perjury that the foregoing is true and correct to the best of my ability.

_______________________ Name

4/6/2020 Date

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EXHIBIT A Curriculum Vitae

ARMEN HENDERSON, MD-MBA
Current Address 5575 SW 6th Street Coral Gables, FL 33134 Adh113@med.miami.edu 610.715.9989

EDUCATION
University of Miami/Jackson Memorial Hospital, FL Degree: Residency Concentration: Internal Medicine Graduation: May 2017

Meharry Medical College, TN Degree: M.D. Graduation: May 2014
Owen Graduate School of Management, TN Degree: MBA Concentration: Healthcare/Management Graduation: May 2014
Mansfield University of Pennsylvania, PA Degree: Bachelor of Science Concentration: Biology/Chemistry Graduation: May 2008
PROFESSIONAL EXPERIENCE

Founder, DADE COUNTY STREET RESPONSE

2018- present

• Teaching civilians how to approach gunshot wound victims using conflict mitigation, Stop the Bleed and CPR
• Leading a disaster relief team that responds to vulnerable communities during emergencies including hurricanes and pandemics.
• Educating physicians and patients on the effects of environmental destruction on health among vulnerable populations.
• Coordinating efforts to bring a trauma recovery center to liberty city that provides access to free mental health services, in conjunction with local medical institutions.

Assistant Professor of Medicine, UNIV OF MIAMI, MILLER SCHOOLOF MEDICINE

2017- present

• Providing top notched, patient centered, evidence based care to patients at University of Miami hospital
• Teaching medical students, residents and observers at UM and JMH hospitals • Serving on the admissions committee for the Miller School of Medicine and Jackson
Memorial hospital internal medicine programs.

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Health Policy Intern, AMERICAN COLLEGE OF PHYSICIANS

Summer 2016

• Provided assistance with researching and analyzing current issues in health and medical education policy, assisting with on-going advocacy initiatives, and the development of advocacy materials
• Attended Congressional hearings, coalition meetings, and accompany government affairs staff on lobby visits to members of congress and their staff
• Advised the organization to focus on social determinants of health by drafting future legislation in its favor

Board Member, TEEN UPWARD BOUND

January 2016- Present

• Reviewed and analyzed current practices and guidelines that govern the organization to make sure they were up to standard with funding opportunities
• Participated and organized fundraising initiatives • Reviewed grants and approved new rules along with conflict resolution among
stakeholders within the organization

Council Member, ALLEGHENY FRANCISCAN MINISTRY CGI

April 2015-Present

• Focused in the community of Overtown, the council decides where and how to spend $7M to bring jobs, youth opportunities and community voice to local government
• Advised to give $600K to a local coalition of 20 organizations that focus on education and social work for youth in Miami- Dade
• Strategy, organizing, finance, team building with community emphasis

Administrative Intern, THE METHODIST HOSPITAL SYSTEM

Summer 2013

• Reviewed and analyzed current pre-operative department processes and services offered to determine impact on patient satisfaction scores and proposed necessary changes to improve both patient flow and patient satisfaction
• Evaluated current OR Efficiency to identify obstacles and determined best practices that must be in place to achieve an on-time start percentage of 90% as measured by patient in room time

Project Pyramid Business Consultant, THE SHALOM FOUNDATION

2012-2014

• Interviewed members of the medical, administrative/operations and management teams to understand scope, current processes, organizational challenges, finances and budget
• Analyzed and mapped workflow from perspectives of management, medical and administrative teams
• Evaluated technical and operational feasibility needed to implement an electronic medical record system
• Proposed and strategized EMR types and financing options for each in a team presentation

Quality Improvement Officer, VANDERBILT UNIVERSITY MEDICAL CENTER

2012-2013

• Process mapped catheter lab from procedural intervention to inpatient care • Developed a protocol to establish a set pathway for returning patients to the appropriate
unit following catheterization procedures to decrease the lapse in healthcare delivery
• Finalized integral pathways steps and presented findings to cardiac team for
possible implementation

National Academic Affairs Chair, STUDENT NATIONALMEDICAL ASSOCIATION

2010-2012

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• Collaborated with companies including Kaplan, USMLE World and USMLE First Aid to offer discounts, free test prep courses and scholarships to 8000+ members. Led multiple online interactive webinars for members on how to pass board exams and excel in hospital rotations
• Led meetings with national, regional and local representatives about committee programming and progress
• Implemented workshops such as “Success on Boards and Wards”, “Business of Medicine” and “Where Medicine Can Take You” at the Annual Medical Education Conference of 1500+ medical student attendees

RESEARCH AWARDS

• 1st Place, American College of Physicians (ACP) National Poster Winner 2011
• 1st Place, American College of Physicians (ACP) Regional Poster Winner 2012 • 1st Place, 55th Annual C. W. Johnson Research Recipient 2010 • 4th Place, Student National Medical Association Research Competition 2010

RESEARCH EXPERIENCE

NIH Research Intern, UNIVERSITY OF PENNSYLVANIA-PHILADELPHIA, PA
• Aided in ovine open heart cardiopulmonary bypass procedures • Aided in perfusion techniques and blood sampling • Aided in ovine post surgical health upkeep and necropsies • Performed western blotting, tissue and blood isolations, and RT PCR • Attended weekly resident and PhD faculty research lectures

2008-2010

Intern, AFRICAN AMERICANS IN MEDICINE(AIM)–PHILADELPHIA, PA

Summer 2007

• Shadowed 12 doctors on their daily rounds for a week at a time • Sat in on heart valve replacement surgeries, reconstructive surgeries, colonoscopies, etc. • Researched general disparities in healthcare

Intern, FOX CHASE CANCER CENTER–PHILADELPHIA, PA

Summer 2006

• Performed western blot and cell culture, made solutions, kept track of chemical inventory. • Performed mitochondrial preparations and protein extractions • Presented findings for Group/Collaborator Discussions

Intern, UNIVERSITY OF PENNSYLVANIA –PHILADELPHIA, PA
• Performed RNA extractions and reverse transcription assays • Mastered cell culture, Western Blotting and Real Time PCR • Animal work, primarily bleeding and breeding mice • Presented work at National Leadership Alliance Conference • Shadowed two doctors on their daily rotations

Summer 2005

Lab Assistant, US DEPARTMENT OF AGRICULTURE, ERRC– WYNDMOOR, PA

Summer 2004

• Extracted proteins by performing the following techniques: gel electrophoresis, centrifugation and homogenization
• Analyzed data using a photo analysis program and sent results to the FDA

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POSTER/ORAL PRESENTATIONS
• The CLEO Institute- Empowering Capable Climate Communicators Symposium, Presenter Disaster Preparedness, a South Florida Model Post Hurricane Irma
• Committee of Interns and Residents, National Conference- presentation on racism in medicine
• American Medical Students Association- Poster presentation Molecular Cardiac Surgery with Recirculating delivery in the Treatment of Heart Failure
• Armen Henderson Danielle M. Thesier, JaBaris D. Swain, Michael G. Katz, Charles Yarnall, Anthony Fargnoli, Marina Sumaroka, Alice Isidro, Mihail Petrov, Lili Wang, David Holt, Rose Nolen-Walston, Walter J. Koch, Joseph Rabinowitz, Hansell H. Stedman& Charles R. Bridges, 2011
• American Society of Gene Therapy-Oral presentation Molecular Cardiac Surgery: ATranslatable, Highly Efficient, Global scAAV-6-Mediated Gene Delivery Technique to the Ovine Myocardium
• Jennifer White MD, Danielle Thesier BS, Armen Henderson BS, JaBaris Swain MD, Michael Katz MD PhD, Charles Yarnall BS, Alice Isidro MS, Haiying Chen MD, David Holt BVSc, Jacquie Farag BS, Mihail Petrov MD, Stephen Soltys BS, Hansell Stedman MD, Joseph Rabinowitz PhD, Charles R. Bridges MD ScD, 2009.
• British Society of Gene Therapy-Oral presentation. Adeno-associated Viral Vector-Mediated Gene Transfer to the Heart Using Molecular Cardiac Surgery: a Novel Translatable Closed Recirculation System for Myocardial Gene Delivery.
• Jennifer White MD, JaBaris Swain, MD, Danielle Thesier BS, Armen Henderson BS, Michael Katz MD PhD, Charles Yarnall BS, Alice Isidro MS, Haiying Chen MD, David Holt BVSc, Jacquie Farag BS, Mihail Petrov MD, Stephen Soltys BS, Hansell Stedman MD, Joseph Rabinowitz PhD, Charles R. Bridges MD ScD, 2009.
• University of Pennsylvania Cardiovascular Institute-Poster presentation. Molecular Cardiac Surgery with Closed Recirculation: A Translatable, Efficient, Global Vector-Mediated Gene Delivery Technique, 2009.
• Jennifer White MD, JaBaris Swain, MD, Danielle Thesier BS, Armen Henderson BS, Michael Katz MD PhD, Charles Yarnall BS, Alice Isidro MS, Haiying Chen MD, David Holt BVSc, Jacquie Farag BS, Mihail Petrov MD, Stephen Soltys BS, Hansell Stedman MD, Joseph Rabinowitz PhD, Charles R. Bridges MD ScD, 2009.
PUBLICATIONS (PEER REVIEWED AND OP-ED)
• https://www.beckershospitalreview.com/quality/viewpoint-as-a-black-physician-iunderstand-why-patients-distrust-medicine.html
• Inquirer Op Ed
• https://www.sun-sentinel.com/opinion/commentary/fl-viewpoint-health-20151218story.html

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• https://www.miamiherald.com/opinion/letters-to-the-editor/article51405915.html
• Katz M, Swain J, Thesier D, White, J, Henderson A, Stedman HH, Bridges CR Methods for Vector Mediated Cardiac Gene Delivery: Potential for Clinical Translation (Invited Review). Gene Therapy and Molecular Biology, 2010 (accepted for publication).
• M, Thesier D, White, J, Henderson A, Stedman HH, Bridges CR. Cardiac Gene Delivery Methods in Large Animals. In: Duan, Dongsheng, (ed.) Methods in Molecular Medicine: Muscle Gene Therapy – Methods and Protocols. Totowa, NJ: Humana Press (in press, 2010).
• Katz MG, Swain JD, White JD, Henderson A, Thesier DM, Fargnoli A, Sumaroka M Tomasulo C, Isidro A, Yarnall C, Stedman H, Rabinowitz J, Bridges CR. Molecular Cardiac Surgery with Recirculating Delivery (MCARD™) for Gene and Cell Therapy: Surgical Technique and Quantitative Assessment of Cardiac Isolation Efficiency. (submitted European J Card Thor Surg, 2010).
• Swain J, Katz M, Thesier D, White, J, Henderson A, Stedman HH, Bridges CR. Cardiac Gene Delivery Methods in Large Animals. In: Duan, Dongsheng, (ed.) Methods in Molecular Medicine: Muscle Gene Therapy – Methods and Protocols. Totowa, NJ: Humana Press (in press, 2010).
• Jennifer D. White, Danielle M. Thesier, JaBaris D. Swain, Michael G. Katz, Catherine Tomasulo,
Armen Henderson, Charles Yarnall, Anthony Fargnoli, Marina Sumaroka, Alice Isidro, Mihail Petrov, Lili Wang, David Holt, Rose Nolen-Walston, Walter J. Koch, Joseph Rabinowitz, Hansell H. Stedman& Charles R. Bridges: Myocardial Gene Delivery using Molecular Cardiac Surgery with Recombinant Adeno-associated Virus Vectors In vivo. Gene Therapy Accepted 2011.

AWARDS AND ACHIEVEMENTS

• 100 Great Ideas Incubator Recipient

2019

• People Matter Community Service Award

2019

• Black Male Empowerment (BMe) Grant and fellowship Recipient

2018

• Legacy Magazine’s Top Black Doctors in FL

Jan 2017

• American College of Physicians Research Scholar

March 2012

• Essex Sylvester Craven, M.D. Endowed Scholarship

October 2011

• Charles W. Johnson 55th Annual Research Award

March 2011

• The Links Inc. Scholar

September 2003- May 2008

• Pennsylvania State National Dean’s List

September 2003-2008

• Bristol Myers Squibb Scholar

June 2006- August 2006

• Trio Scholar

September 2006- May 2008

• Board of Governor’s Scholar

September 2003- May 2008

• National Institute of Health Grant for Minorities

September 2008-2009

• NCAA Presidential Scholar-Athlete Award

October 2006- 2008

• Who’s Who In American Colleges and Universities

March 2008

UNDERGRADUATE DIVERSIFIED ACTIVITIES
• Student Government, Representative • Men For Progress, Representative • Mansfield University Men’s Basketball • Mountianeer Leadership Program

September 2005- 2008 September 2006- 2008
August 2006-2008 September 2007- 2008

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• Biology Club • Participated in National Leadership Alliance Conference, Boston • Participated in AMP Research Symposium, Newark • Shadowed doctor at University of Penn • Calculus Tutor, Mansfield University • Mansfield Literary Society

September 2006- 2008 July 2005
August 2005 July 2005
December 2003 February 2008

GRADUATE DIVERSIFIED ACTIVITIES
• Economic Hardship Reporting Project Contributor • Herbert Werthriem Conference • Panelist, Beyond Flexner Conference • Presenter, National CIR/SEIU Conference • AAU Basketball Coach • Owen Ambassador • Herman Memorial Ironman, TX • Project Pyramid
Vanderbilt Global Health Case Competition February 2013
• Owen Black Students Association • Vanderbilt Healthcare Club • Bike New York • Music City Triathlon, TN • American Medical Students Association Conference Research • Nashville Rescue Mission Skate-a-thon • Be the Match, Bone Marrow Drive • Medical Missions Trip, Haiti • Habitat for Humanity • Relay for Life • Nashville Cares, Flood rebuild • Participated in Student National Medical Association Conference, Chicago • Shade Tree Student Medical Clinic • AIDS Walk

2019 August 2016 September 2016
2016 May 2014 June 2013 May 2013 March 2013
August 2012 August 2012
May 2011 July 2011 May 2011 March 2011 November 2010 May 2010 August 2010- Present March 2010 April 2010 April 2010 2010-2011 September 2010-2011

LEADERSHIP POSITIONS

• Founder, Dade County Street Response • Field Organizer, Dream Defenders • Founder, Mentors Like You • Academic Affairs National Committee Chair, SNMA • President, Student National Medical Association (Meharry Chapter) • Team Captain, Mansfield NCAA Division II Men’s Basketball

May 2014- Present May 2008-2014
February 2011-2013 March 2010- 2011 August 2007- 2008

 
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Case No. 20-cv-21457-KMW
ANTHONY SWAIN, et al., Plaintiffs,
v.
DANIEL JUNIOR, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department, and MIAMI-DADE COUNTY,
Defendants. /
DEFENDANTS’ MOTION TO DISMISS COUNT I OF THE COMPLAINT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
Daniel Junior, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department (MDCR), and Miami-Dade County move under Federal Rule of Civil Procedure 12(b) to dismiss Count I of the Complaint [ECF No. 1] for failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act (PLRA).
BACKGROUND The Plaintiffs are seven pretrial detainees who are currently conﬁned in three units at MDCR’s Metro West Detention Center. Compl. ¶¶ 9-15. They bring this prospective class action on behalf of inmates housed at Metro West, alleging unrealized health risks posed by the COVID-19 pandemic. They seek two remedies: (1) declaratory and injunctive relief under 42 U.S.C. § 1983 for violations of their Eighth and Fourteenth Amendment rights (Count I); and (2) entry of a writ of habeas corpus under 28 U.S.C. § 22411 effecting the immediate release of all members of what they have called the “Medically Vulnerable Subclass” of detainees (Count II). Id. ¶¶ 82-83, 112-26. Because this suit concerns prison life, because the suit asserts a claim pursuant to
1 Section 2241 has its own requirement that a habeas petitioner first exhaust all available state court remedies for consideration of his constitutional claim. See Braden v. 30th Judicial Cir. Ct. of Ky., 410 U.S. 484, 489-92 (1973); Skinner v. Wiley, 355 F.3d 1293, 1295 (11th Cir. 2004). As the Defendants discuss in their supplemental brief on habeas relief [ECF No. 35] and the response to the motion for preliminary injunction ﬁled contemporaneously with this motion, the Plaintiffs have not exhausted those remedies.
1

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federal statute, and because each of the seven Plaintiffs was conﬁned at Metro West when it was ﬁled, it is subject to the limitations and restrictions of the PLRA. The relevant limitation is the PLRA’s requirement that an inmate exhaust available administrative remedies before ﬁling suit. 42 U.S.C. § 1997e(a). Not one of the seven Plaintiffs has satisﬁed that requirement, so Count I must be dismissed with prejudice.
ARGUMENT “There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). The PLRA’s exhaustion requirement reads: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner conﬁned in any jail . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, [] and whether they allege excessive force or some other wrong,” Porter v. Nussle, 534 U.S. 516, 532 (2002), and regardless of the relief sought, Booth v. Churner, 532 U.S. 731, 741 (2001). See Farmer v. Brennan, 511 U.S. 825, 847 (1994) (advising that in cases seeking injunctive relief to address “current” prison conditions, inmates are not “free to bypass adequate internal prison procedures and bring their health and safety concerns directly to court”). “[T]he PLRA’s text suggests no limits on an inmate’s obligation to exhaust,” except that he need only exhaust those remedies that are “available” to him. Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). A court has no discretion to excuse an inmate’s failure to exhaust, “even to take special circumstances into account.” Id. at 1856-57 (cleaned up); see Nellson v. Barnhart, No. 20-0756, 2020 WL 1890670, at *3-5 (D. Colo. Apr. 16, 2020) (denying motion for temporary restraining order alleging COVID-19 concerns because inmate failed to exhaust under the PLRA before ﬁling suit). Failure to exhaust is an affirmative defense that the Eleventh Circuit explicitly directs defendants to raise in a motion to dismiss. Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir. 2015); see Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008) (“[A]n exhaustion defense . . . is not ordinarily the proper subject for a summary judgment; instead, it should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment.” (cleaned up)). Once the defense is raised, it “should be treated as a matter in abatement,” meaning that “procedurally the defense is treated ‘like a defense
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for lack of jurisdiction,’ although it is not a jurisdictional matter.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (quoting Bryant, 530 F.3d at 1374). Critically, “[t]he question of exhaustion is a threshold matter,” Oliver v. Warden, 761 F. App’x 960, 963 (11th Cir. 2019), that a court “must address” before it may consider the merits of a case, Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir. 2004).
A two-step framework governs the analysis of a motion to dismiss for failure to exhaust administrative remedies. See Turner, 541 F.3d at 1082-83. At step one, a district court accepts as true the plaintiff’s alleged facts relating to his exhaustion of administrative remedies. Id. at 1082. If the plaintiff ’s version of the facts entitles the defendant to dismissal, the court may dismiss the complaint at that step. Id. If it doesn’t, the court proceeds to step two, where it must consider the evidence presented and make speciﬁc factual ﬁndings on the exhaustion question, resolving any factual disputes between the parties’ versions. Id. The court must then decide, based on the speciﬁc factual ﬁndings it made, whether the plaintiff exhausted his available administrative remedies. Id. at 1083.2
A. To exhaust MDCR’s available administrative procedures under the PLRA, an inmate must timely ﬁle a grievance and timely appeal that grievance if it is rejected.
“The PLRA ‘requires proper exhaustion’ of ‘critical procedural rules’ governing the grievance process,” Dimanche v. Brown, 783 F.3d 1204, 1210 (11th Cir. 2015) (quoting Woodford v. Ngo, 548 U.S. 81, 95 (2006)), and demands that “prisoners must ‘properly take each step within the [prison’s] administrative process,’” Bryant, 530 F.3d at 1372 (quoting Johnson v. Meadows, 418 F.3d 1152, 1158 (11th Cir. 2005))). MDCR’s “critical procedural rules” take the form of an “established[,] multi-step grievance procedure—applicable to all inmates, regardless of their status—that allows inmates to complain about the conditions of conﬁnement.” Myles v. Green, 557 F. App’x 901, 903 (11th Cir. 2014). The procedure is outlined in the Department’s Standard Operating Procedure No. 15-001, attached as Exhibit 1. The section dealing with inmate access to the grievance process provides:
Inmate Grievance forms shall be accessible to inmates in all housing areas. The forms are available in English, Spanish, and Creole. Inmates seeking to grieve an issue shall:
2 Considering that this is a proposed class action, the County notes Eleventh Circuit law that “a class of prisoner-plaintiffs certiﬁed under Rule 23(b)(2) satisﬁes the PLRA’s administrative exhaustion requirement through ‘vicarious exhaustion.’” Chandler, 379 F.3d at 1287. In other words, “when one or more class members has exhausted his administrative remedies with respect to each claim raised by the class,” that exhaustion is imputed to the entire class. Id. (cleaned up). That said, no class has been certiﬁed. What’s more, the County will show that no Plaintiff has exhausted, meaning there’s nothing to impute.
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A. Complete the Inmate Grievance form; B. Place the completed Inmate Grievance form into any inmate request
drop box within 10 calendar days from the date of the incident. DSOP 15-001 § V, at 2.
Staff are required to provide an inmate with a grievance form upon request and as-
sist the inmate with ﬁlling it out, if needed. Id. § VII(A), at 3. Once submitted, a grievance
is forwarded to a counselor for review who must input it into MDCR’s system. Id. § VII(B),
at 3-4. After the facility responds to a grievance, a dissatisﬁed inmate may appeal within
two days of his receipt of the response: Inmates have the right to appeal a grievance response; however, an inmate that has signed and accepted a grievance resolution cannot appeal the response at a later date. Inmate Grievance Response Appeal forms are accessible to inmates in all housing units. Inmates shall complete an Inmate Grievance Response Appeal form and place it into an inmate request drop box within two calendar days from receipt of the grievance response. Assistance shall be provided to inmates in preparing the appeal . . . . The respective Division Chief or the IMP [Inmate Medical Provider] Director shall provide a response to the inmate grievance appeal within seven calendar days of receiving the Inmate Grievance Response Appeal form. The decision of the Division Chief or IMP Director is ﬁnal and there shall be no further appeal.
Id. § XIII, at 6-7. The MDCR Inmate Handbook outlines these procedures, as well: You can ﬁle a general grievance without ﬁling a complaint. To ﬁle a general grievance, you must ﬁll out an Inmate Grievance Form. The forms are available in all housing areas. If you need help writing your grievance, ask a counselor, officer, or any staff for. Give the completed grievance form to a counselor, officer, or staff within 10 workdays from when the situation/incident happened. If your complaint is about a staff member, give the form to any other staff member or your counselor. . . . If you do not agree with the result [of a grievance], you may reject it and/or request an appeal. You must then sign the form indicating your decision. If you do not sign the form, the grievance process will end. . . . If you want to appeal, you must ﬁll out a MDCR Inmate Grievance Appeal Form within 2 workdays after you receive the grievance resolution. You will receive the appeal response within 7 workdays. The grievance appeal decision is ﬁnal.
Inmate Handbook 7, attached as Exhibit 2.
The DSOP also provides an emergency grievance procedure, designating several cate-
gories of “emergency complaints/grievances” that require “immediate resolution.” DSOP
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15-001 § VIII, at 4. These categories include “[e]mergent medical, dental, and/or mental health issues” and “[i]mminent safety issues.” Id. When a staff member receives an emergency complaint or grievance from an inmate, that staff member shall “immediately” deliver a copy of the grievance to the Inmate Medical Provider (for medical, dental, or mental health grievances) or the Shift Supervisor/Commander (for all other grievances) for resolution. Id. § VIII(A)(1). Then, the burden falls to the Facility/Bureau Supervisor or IMP/ Director of Patient Care Services to investigate and prepare the written response within seven calendar days. Id. § VIII(C)-(D), at 4-5; see also Inmate Handbook 7-8 (“Emergency complaints or grievances that will be responded to immediately include: . . . Immediate medical and/or mental health issues” and “Safety issues . . . .” (emphasis added)).
In short, to exhaust MDCR’s available administrative remedies for purposes of satisfying the PLRA, an inmate must timely ﬁle a grievance, and then timely appeal the resolution of that grievance. This procedure has been upheld time and again by the Eleventh Circuit and courts in this District disposing of complaints for failing to exhaust. See, e.g., Myles, 557 F. App’x at 903; Bure v. Miami-Dade Corr. Dep’t, 507 F. App’x 904 (11th Cir. 2013); Wilson v. Greaves, No. 16-20651, 2016 WL 11643979, at *1 (S.D. Fla. Dec. 30, 2016); Ordunez v. Miami-Dade Corr. & Rehab. Dep’t, No. 14-23816, 2016 WL 11047148, at *7 (S.D. Fla. Jan. 8, 2016), report and recommendation adopted, 2016 WL 11047149 (S.D. Fla. Feb. 22, 2016); Francis v. Miami-Dade Dep’t of Corr., No. 07-21817, 2007 WL 3406764, at *1 (S.D. Fla. Nov. 13, 2007).
B. The Plaintiffs did not exhaust administrative remedies because grievances were available, and the Plaintiffs didn’t ﬁle any. 1. Supreme Court precedent bars one of the Plaintiffs’ proffered excuses for not exhausting; the other excuse is equivocal at best.
At step one of Turner’s two-step framework, the Plaintiffs concede that they did not complete MDCR’s grievance process. They contend, however, that they should be relieved of the obligation to exhausts because MDCR’s administrative remedies were “unavailable.” Compl. ¶ 105. First, they allege that they “repeatedly asked for grievance forms” but “[j]ail employees denied their requests by explaining that paper grievance forms were unavailable.” Id. They admit that “a small amount of forms became available on” April 4, the day before the Complaint was ﬁled, but “many” Plaintiffs “were not able to access them, and no one was able to access enough of them to submit a grievance on each issue.” Id. Second, they allege some number of them were able to ﬁle a grievance a day earlier, on April 3, but
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“the typical grievance procedure would take too long to result in any changes to [their] conﬁnement that could protect them from imminent bodily injury and death.” Id.
a. The latter excuse is invalid on its face, so the County addresses that one ﬁrst. The Supreme Court, in its most recent excursion on the issue of PLRA exhaustion, explained that “the only limit to § 1997e(a)’s mandate is the one baked into its text: An inmate need exhaust only such administrative remedies as are ‘available.’” Ross, 136 S. Ct. at 1858. With that as the jumping-off point, the Court identiﬁed three limited circumstances in which a grievance procedure could be deemed “unavailable”: (1) where officials are “unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) where the jail’s procedures are “so confusing that no reasonable prisoner can use them”; and (3) where officials “thwart” inmates from invoking the grievance procedure “through machination, misrepresentation, or intimidation.” Id. at 1859-60.
The list ends at three; there is no fourth circumstance. See Pearson v. Taylor, 665 F. App’x 858, 868 (11th Cir. 2016) (rejecting plaintiff’s unavailability arguments because they “do not appear to fall within any of [Ross’s] three ‘exceptions’ to exhaustion”). So, claiming “the typical grievance procedure would take too long,” Compl. ¶ 105, is not a valid excuse that obviates the mandatory exhaustion requirement. This excuse sounds awfully close to advocating for a futility exception, which this Circuit’s law foreclosed long before Ross. See Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000) (exhaustion “cannot be waived based upon the prisoner’s belief that pursuing administrative procedures would be futile”).
The Plaintiffs’ fears of “imminent danger of serious injury or death,” Compl. ¶ 106, do not grant them a ticket to sail past exhaustion. Quite the opposite, the Eleventh Circuit has ruled. See Bracero v. Sec’y, Fla. Dep’t of Corr., 748 F. App’x 200, 204 (11th Cir. 2018), cert. denied sub nom. Bracero v. Inch, 139 S. Ct. 1631 (2019). The plaintiff in Bracero argued that his complaint “should not have been dismissed because he alleged imminent danger.” Id. The court deemed this effort to overcome exhaustion “unavailing”: “exhaustion is a prerequisite for any prisoner suit.” Id. The grievance process was available to the plaintiff and the plaintiff did not follow it, so his complaint was properly dismissed for failing to exhaust administrative remedies. Id. “Any prisoner suit” means any prisoner suit—including this one. If a plaintiff’s claim that an administrative procedure was not capable of use can’t be squared with one of the “three kinds of circumstances” enumerated in Ross, then
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as far as the PLRA is concerned, it’s not worth the paper it’s written on. Both cases the Plaintiffs cite in support of this nonexistent excuse, Fletcher v. Menard
Corr. Ctr., 623 F.3d 1171 (7th Cir. 2010), and Fuqua v. Ryan, 890 F.3d 838 (9th Cir. 2018), are inapposite. The Plaintiffs correctly report Fletcher’s language that “administrative remedies that offer no possible relief in time to prevent [] imminent danger from becoming an actual harm can’t be thought available.” 623 F.3d at 1173. Two problems for them with that, though. For one thing, the continued viability of that passage is doubtful post-Ross, whose exhaustive list did not include an imminent-danger exception. But even if Fletcher survives intact, its actual holding—that the plaintiff failed to exhaust—undermines the Plaintiffs’ reliance on it. Granted, the Seventh Circuit recognized an imminent-danger exception, but it explained that that “does not excuse a prisoner from exhausting remedies tailored to imminent dangers.” Id. at 1175. The plaintiff had such a remedy—an emergency grievance procedure for prisoners with an urgent need of medical attention. Id. at 1174. The court saw “no reason to think that the [emergency] grievance procedure would take longer than judicial procedure,” so the imminent danger “did not excuse the plaintiff’s failure to exhaust.” Id. at 1175. MDCR too has an emergency grievance procedure (that the Plaintiffs didn’t use), see supra, at 4-5, so Fletcher wouldn’t salvage the Plaintiffs’ excuse anyway.
The Plaintiffs’ reliance on Fuqua is based on failing to read until the end of the decision. The Ninth Circuit didn’t hold that the administrative procedure was unavailable because “it required 30-day notice but unconstitutional requirement would occur in 72 hours.” Compl. ¶ 106 (citing Fuqua, 890 F.3d at 848). Its holding wasn’t based on the timing at all. Rather, two pages later, in a section titled “Only Available Remedies Must Be Exhausted,” the court, invoking Ross’s second exception, held that the procedure at issue was “precisely the sort of ‘essentially unknowable’ procedure that the Ross Court had in mind.” Fuqua, 890 F.3d at 850 (emphasis added).
The Plaintiffs muster no authority to support creation of this excuse. No matter which way you slice it, the ﬁrst excuse fails to overcome the exhaustion requirement.
b. Even accepting as true the Plaintiffs’ alternative excuse—that their repeated requests for grievance forms were denied on the grounds that there were no forms available—would not necessarily relieve them of the obligation to exhaust. The Plaintiffs allege, “To the extent a small amount of forms became available on the day before this ﬁling, many
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Petitioners/Plaintiffs were not able to access them, and no one was able to access enough of them to submit a grievance on each issue.” Compl. ¶ 105. This allegation concedes an important point: Some number of Plaintiffs did have access to blank forms on April 4, which would have allowed those Plaintiffs to grieve at least some issues. But the Plaintiffs don’t allege that any of them ﬁled a grievance on April 4. All they can do to attempt to justify why that is, is loop back to their defunct “imminent danger” excuse.
To the extent the Plaintiffs claim that some of them were able to ﬁle grievances on April 3, that still wouldn’t solve their no-exhaustion problem. The PLRA “requires proper exhaustion” of an issue before bringing suit, which “means using all steps that the [facility] holds out, and doing so properly,” to allow the facility an opportunity to address the issue on the merits. Woodford, 548 U.S. at 90, 93 (emphasis added) (cleaned up). Even the Plaintiffs who allegedly ﬁled grievances on April 3 did not properly use all of MDCR’s provided steps. They didn’t wait for the facility’s response to whatever grievances they ﬁled. And, if that response was a denial, they didn’t appeal it. Put simply, no Plaintiff used all the steps MDCR holds out—properly or otherwise—so there is no vicarious exhaustion to impute to the putative class. All Plaintiffs, therefore, have failed to satisfy the exhaustion requirement, so Count I should be dismissed at Turner step one.
Charitably, however, if the Court believes that the allegations of denials of requests for grievances for lack of blank grievance forms could lead to a ﬁnding that the grievance process was not available under the third circumstance described in Ross, see 136 S. Ct. at 1859-60, dismissal at step one would not be appropriate.
2. The County’s evidence reveals that the Plaintiffs’ convenient, conclusory allegations are not credible.
Should the Plaintiffs’ allegations not entitle the County to dismissal at step one, the Court must proceed to step two, where it resolves credibility issues and makes factual ﬁndings based on the evidence. See Bryant, 530 F.3d at 1377-78. The County’s evidence unequivocally shows that none of the seven Plaintiffs ﬁled a single grievance regarding their conditions of conﬁnement or Metro West’s alleged inaction in response to the threat of COVID-19. The Plaintiffs’ unsworn allegations are not credible. They failed to start—much less complete—MDCR’s established administrative process and necessarily failed to exhaust under the PLRA.
A plaintiff who claims that “prison officials prevent[ed] them from exhausting . . . must have some supporting proof of [their] assertions.” Kingcade v. Parker, 949 F. Supp. 2d
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1232, 1239 (S.D. Fla. 2013) (emphasis added) (cleaned up). Yet the Complaint offers no proof. The Defendants’ evidence relating to exhaustion, on the other hand, shows that grievance forms were, in fact, available, but the Plaintiffs never ﬁled any.
First off, the Plaintiffs cannot feign ignorance of the grievance process. Each one signed an Inmate Orientation Statement upon his arrival at Metro West, conﬁrming, among other things, that he received a copy of the Inmate Handbook and that he understood he was to comply with its rules and regulations—including those governing grievances. See Inmate Orientation Statements (Composite), attached as Exhibit 3.
Plaintiffs’ unsubstantiated claim that there were no grievance forms available is refuted handily by declarations, sworn to under penalty of perjury, from two MDCR employees: Reentry Program Services Bureau Inmate Services Administrator Reynaldo Romero, and Metro West Correctional Counselor Supervisor Terrence Mathews. See Declaration of Reynaldo L. Romero, attached as Exhibit 4; Declaration of Terrence Mathews, attached as Exhibit 5. Romero’s declaration attaches an Inmate Grievance Report, which shows all grievances ﬁled across MDCR’s multiple facilities between the ﬁrst of the year and April 10, ﬁve days after the Plaintiffs ﬁled this suit. Romero Decl. ¶ 4 & Ex. A. As summarized in the table on the next page, this report reveals that in the two weeks before this litigation began (March 22 through April 5), twenty-two Metro West inmates ﬁled a total of twenty-nine grievances—with at least one grievance ﬁled every day except April 4:

Date 3/22/2020 3/23/2020 3/23/2020 3/24/2020 3/25/2020 3/26/2020 3/27/2020 3/27/2020 3/28/2020 3/28/2020 3/28/2020 3/29/2020 3/30/2020 3/31/2020
4/1/2020
4/1/2020

Inmate Name Terrance Byrd Brandon Pop Alex Brown Mark Welch Amaury Perez-Gonzalez Sosthene Louis Nicholas Garcia Enrique Lexte-Vidal Antoinette March Arlene Antoine Mark Welch Clinton Bingham Justin Earnshaw Rudolph Gonzalez
Dashera Davis
Arlene Antoine

Grievance Type
complaint against mental health staff personal property staff complaints food services emergency grievance for dental care sanitation/cleanliness staff complaints personal property facility operations facility operations food services staff complaints food services personal property emergency grievance for sexual abuse/harassment facility operations

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Date (cont’d)
4/1/2020 4/1/2020 4/1/2020 4/1/2020 4/2/2020 4/3/2020 4/3/2020 4/3/2020 4/3/2020 4/3/2020 4/3/2020 4/3/2020 4/5/2020

Inmate Name (cont’d)
Carlos Escutary Carlos Escutary Mike Neal Mike Neal Tiwa Owonibi Luis Montalvan Sherman Douglas Samuel Thomas Jimmie Evans William Earnshaw Mike Neal Mike Neal Mike Neal

Grievance Type (cont’d)
inmate ﬁnance inmate ﬁnance legal sanitation/cleanliness emergency grievance for medical care personal property mail food services sanitation/cleanliness facility operations staff complaints staff complaints staff complaints

See Romero Decl. Ex. A., at 15-18. Romero’s declaration and this report also show that the Plaintiffs’ allegation that some of them “were able to file a grievance on April 3, 2020” (Compl. ¶ 105) lacks merit. He attests that none of the seven Plaintiffs ﬁled a grievance between January 1 and April 10. Romero Decl. ¶ 6.
Next up is Mathews, who declares under penalty of perjury that blank grievance forms are, and always have been, available to inmates at Metro West. Mathews Decl. ¶ 3. He explains that each housing unit at Metro West contains a box of blank grievance forms that are regularly restocked by counselors. Id. ¶ 5. Each correctional officer and counselor also carries blank forms that an inmate can ask for at any time. Id. ¶ 6. If a counselor has no copies on his or her person and the box is empty, she can print a new blank form to give to an inmate upon request. Id. ¶ 7. It is part of Mathews’s duties to periodically check the number of blank forms available at the facility and, when supplies are running low, to go to MDCR headquarters to pick up a new batch. Id. ¶ 8. As a matter of fact, supplies were recently getting low, so on or around April 3, he brought a box containing approximately 2,000 blank grievance forms from headquarters to Metro West. Id. ¶ 9.
These declarations stand in stark contrast to the Plaintiffs’ self-serving allegations that they have set forth “no details whatsoever to support,” such as when they requested grievance forms or the name of any Metro West official who denied a request. Teran v. Johns, No. 17-0009, 2017 WL 4678220, at *4 (S.D. Ga. Oct. 17, 2017), report and recommendation adopted, 2017 WL 6028400 (S.D. Ga. Dec. 5, 2017). The court in Teran dismissed the plaintiff’s complaint for failure to exhaust because he didn’t shore up his “bald[] state[ment] that ‘prison officials’ failed to provide him grievance forms,” id.—a statement oddly remi-

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niscent of the Plaintiffs’ “[j]ail employees denied their requests,” Compl. ¶ 105. See also, e.g., Louis-Charles v. Baker, No. 16-1417, 2018 WL 5728054, at *6 (N.D.N.Y. July 30, 2018) (“[P]laintiff has not introduced evidence that grievance forms were unavailable throughout [the facility], nor has plaintiff speciﬁed who informed him that there were no grievances in the cell block or that corrections officers were not permitted to issue the forms absent supervisor approval, or when these statements were made.” (cleaned up)), report and recommendation adopted, 2018 WL 4299982 (N.D.N.Y. Sept. 10, 2018).
Closer to home, just last month a court in the Middle District of Florida saw right through allegations as transparent as the Plaintiffs’. See Filmore v. Cooper, 18-0955, 2020 WL 1275385, at *6 (M.D. Fla. Mar. 17, 2020) (“Plaintiff’s contention that he was unable to obtain formal grievance forms is not only conclusory but is not credible.”). The plaintiff provided no factual detail explaining the steps he took to obtain grievance forms, “such as who he asked, how many times he asked, or whether he took other measures to obtain the forms.” Id. And while the court thought it plausible that one or a few employees may have declined to physically hand the plaintiff a grievance form, it found implausible the plaintiff’s statements “that absolutely no grievance forms were available throughout the prison,” or “that multiple employees would have refused Plaintiff grievance forms given employees are subject to discipline for such conduct.” Id.
The same results from Teran and Filmore should obtain here. Every detail those plaintiffs neglected to provide are details the Plaintiffs too have not provided. Further, MDCR counselors, like the employees in Filmore, would be subject to discipline for refusing to hand over grievance forms, as Mathews attests. Mathews Decl. ¶¶ 10-11. It deﬁes belief to imply, as the Plaintiffs do, that counselors would be willing to risk discipline and jeopardize the security of their jobs—at a time of rampant unemployment, no less—over something as trivial as handing an inmate a grievance form.
As incredible as the allegations in these cases were, one would have to multiply the incredulity by seven to approach the absurdity of the Plaintiffs’ allegations. Without one nonconclusory factual detail, they expect the Court to believe that Metro West employees in three different units thwarted every one of all seven Plaintiffs’ attempts to ﬁle grievances by refusing them forms because the facility had none available—plus no way to print any new ones. In short, these are nothing more than “bald assertions that attempts at exhaustion were thwarted by jail staff,” which courts ﬁnd “insufficient to overcome evidence of
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lack of exhaustion.” Kingcade, 949 F. Supp. 2d at 1239. The Plaintiffs’ claims of unavailability “readily wither when subjected to the crucible
of examination the second Turner step requires.” Teran, 2017 WL 4678220, at *4. In the light of the evidence the County has provided, the Court should make two factual ﬁndings. One, the administrative process was fully available to the Plaintiffs. And two, no Plaintiff ﬁled a grievance complaining about COVID-19 or his conditions of conﬁnement prior to the ﬁling of this lawsuit. Those factual ﬁndings will lead to one inexorable conclusion: the Plaintiffs failed to exhaust available administrative remedies.
CONCLUSION Seven Plaintiffs ﬁled zero grievances and then ﬁled a class action lawsuit in federal court. That is the opposite of what Congress had in mind when it enacted the PLRA. Accordingly, the Court should dismiss Count I of the Complaint for failure to exhaust administrative remedies. And as “[t]here is no question . . . that unexhausted claims cannot be brought in court,” Jones, 549 U.S. at 211, the dismissal should be with prejudice.

Dated: April 21, 2020.

Respectfully submitted,
ABIGAIL PRICE-WILLIAMS MIAMI-DADE COUNTY ATTORNEY
By: /s/ Zach Vosseler Zach Vosseler, Fla. Bar. No. 1008856 zach@miamidade.gov Bernard Pastor, Fla. Bar. No. 46582 pastor@miamidade.gov Erica Zaron, Fla. Bar. No. 514489 zaron@miamidade.gov Ezra S. Greenberg, Fla. Bar. No. 85018 ezrag@miamidade.gov Anita Viciana, Fla. Bar. No. 115838 anita@miamidade.gov Jennifer L. Hochstadt, Fla. Bar. No. 56035 hochsta@miamidade.gov Assistant County Attorneys
Stephen P. Clark Center 111 N.W. First Street, Suite 2810 Miami, Florida 33128 (305) 375-5151
Counsel for Defendants

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MOTION TO DISMISS COUNT I FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

Case 1:20-cv-21457-KMW Document 66 Entered on FLSD Docket 04/21/2020 Page 13 of 13 CERTIFICATE OF SERVICE
On April 21, 2020, I electronically ﬁled this document with the Clerk of Court via CM/ECF and served a copy on all counsel of record via CM/ECF.
/s/ Zach Vosseler Zach Vosseler Assistant County Attorney
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MOTION TO DISMISS COUNT I FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

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MIAMI-DADE CORRECTIONS AND REHABILITATION DEPARTMENT

VOLUME: 15

DSOP: 15-001

YEAR: 2020

VERSION: 2

SUBJECT:

INMATE COMPLAINT/GRIEVANCE PROCESS

EFFECTIVE DATE: January 06, 2020
SUPERSEDES: October 1, 2016
MODIFICATIONS: All pages
ANNUAL REVIEW:
I. POLICY
It is the policy of the Miami-Dade Corrections and Rehabilitation Department (MDCR) to provide a process for all inmates to have their complaints and/or grievances addressed in a fair and timely manner. Inmates shall not be subject to mistreatment or retaliation for filing a complaint and/or a grievance. The information gathered from the inmate grievance process shall be analyzed and used to improve MDCR operations. Staff shall never interfere with the inmate grievance process.
II. DEFINITIONS
Calendar Days, Emergency Complaint/Grievance, Emergent, Frivolous, Grievance, Grievance Clerk, Informal Complaint, Inmate Medical Provider, Staff Misconduct, Substantiated, Unsubstantiated
III. COMPLAINTS/GRIEVANCES
Inmates may use the following processes to resolve concerns and issues:
A. Informal Complaint;
B. Grievance.
The Intake and Release Bureau Classification Unit staff shall provide:
A. Orientation to all inmates;
B. The Inmate Handbook to all inmates after the first court appearance. The Inmate Handbook includes but is not limited to the following information:
1. Inmate’s rights and responsibilities;
2. Services and programs;
3. Procedures, rules, regulations, violations, and sanctions;
4. Complaint and grievance process.
C. Auxiliary aids and qualified sign language interpreters, when necessary, to communicate with hearing, vision, or speech impaired inmates;
D. Translation assistance for inmates with Limited English Proficiency (LEP).
Inmates shall sign the Inmate Orientation Statement form acknowledging receipt and understanding of the information provided.

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MIAMI-DADE CORRECTIONS AND REHABILITATION DEPARTMENT

VOLUME: 15

DSOP: 15-001

YEAR: 2020

VERSION: 2

SUBJECT:

INMATE COMPLAINT/GRIEVANCE PROCESS

IV. INFORMAL COMPLAINT PROCESS
Inmates may submit an Inmate Request form or verbally make an informal complaint, e.g., mail, recreation, to staff at any time. Inmates may choose to skip the informal complaint process and immediately utilize the formal grievance process.
A. Staff receiving an informal complaint shall:
1. Discuss the concerns/issues with the inmate;
2. Attempt to resolve the concerns/issues with the inmate within a calendar day;
3. Document the action taken on the Inmate Request form or identify the entity to provide resolution;
4. Place the form in the inmate request drop box for the Counselor to process.
B. The Counselor shall:
1. Collect the Inmate Request form from the drop box and within a calendar day:
a. Upload the form in the Inmate Request System and close the request in the system if a resolution was already provided; or
b. Input the Inmate Request into the Inmate Request System if the request is received and is unresolved, and upload the form in the system. The Inmate Request shall then be referred to the entity responsible to provide resolution;
2. Print the completed form and present it to the inmate within three calendar days once the entity responsible for providing a resolution updates the Inmate Request System. Once the Inmate Request has been signed by the inmate, it shall be uploaded and closed out in the system.
If an inmate rejects an informal resolution or no resolution is provided by staff, the inmate may choose to submit an Inmate Grievance form regarding the same concern/issue.
V. ACCESS TO THE GRIEVANCE PROCESS
Inmate Grievance forms shall be accessible to inmates in all housing areas. The forms are available in English, Spanish, and Creole. Inmates seeking to grieve an issue shall:
A. Complete the Inmate Grievance form;
B. Place the completed Inmate Grievance form into any inmate request drop box within 10 calendar days from the date of the incident. There is no time limit for inmates to submit a grievance for alleged sexual battery, sexual abuse, and/or sexual harassment. Inmate request drop boxes are secured and maintained by MDCR.
Note: Inmate health information is legally protected and shall remain confidential and disclosed only to authorized staff in accordance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and DSOP 14-001 “Inmate Health Care Services.”
VI. RETURNED INMATE GRIEVANCES
The Counselor may return Inmate Grievance forms to inmates for any of the following reasons:

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MIAMI-DADE CORRECTIONS AND REHABILITATION DEPARTMENT

VOLUME: 15

DSOP: 15-001

YEAR: 2020

VERSION: 2

SUBJECT:

INMATE COMPLAINT/GRIEVANCE PROCESS

A. Non-grievable concerns/issues:

1. State and federal court decisions;

2. Local, state, and federal laws/regulations;

3. Circumstances beyond the control of MDCR;

4. MDCR procedures that have an appeal process, e.g., classification level, disciplinary decision;

5. An incident older than 10 calendar days, with the exception of an allegation of sexual battery, sexual abuse, and/or sexual harassment;

6. Duplicate of a grievance already submitted regarding the same set of facts/circumstances.

B. Incomplete form;

C. More than one complaint/issue and/or grievant (inmate name) on the form;

D. Offensive language or frivolous complaint (e.g. complaints which are beyond MDCR scope of resolution, previously resolved complaints which add no new information).

VII. PROCESSING GRIEVANCES

Inmates may obtain assistance from other inmates, staff, or attorneys, when preparing the grievance form; however, only the involved inmate shall submit the grievance.

A. Staff shall provide assistance to inmates requesting a formal grievance as follows:

1. Ensure inmates can file and access grievances confidentially without the intervention of a correctional officer;

2. Instruct inmates to place the completed Inmate Grievance forms into an inmate request drop box if inmates attempt to give forms to staff, unless the Inmate Grievance is an emergency (refer to Section VIII);

3. Assist inmates unable to complete the form due to:

c. Illiteracy;

d. Mental health/physical reasons, etc.

4. Provide translation assistance for inmates with LEP in accordance with DSOP 17-005 “Limited English Proficiency”;

5. Provide auxiliary aids and qualified sign language interpreters when necessary to communicate with hearing, vision, or speech impaired inmates.

B. The Counselor shall:

1. Collect Inmate Grievance forms from the inmate request drop boxes daily, Monday through Friday, excluding holidays;

2. Sort grievance requests;

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MIAMI-DADE CORRECTIONS AND REHABILITATION DEPARTMENT

VOLUME: 15

DSOP: 15-001

YEAR: 2020

VERSION: 2

SUBJECT:

INMATE COMPLAINT/GRIEVANCE PROCESS

3. Take the original and a copy of medical/dental/mental health grievance forms to the Inmate Medical Provider (IMP)/Associate Nurse Manager (ANM)/Charge Nurse to:
a. Classify the request (e.g., medical, dental, mental health services);
b. Determine if the request is emergent or non-emergent;
c. Stamp date and time upon receipt (copy of the grievances are kept by the IMP and originals by the Counselor).
4. Input inmate grievance information into the IGS. The IGS generates a control number for each grievance. Refer to Inmate Grievance Process guidelines for staff responsibilities and instructions on the IGS.
C. The Reentry Program Services Bureau (RPSB) Supervisor shall ensure the collection, analysis, coordination, and management of the inmate grievance process to include:
1. Following up with the IMP/Director of Patient Care Services for medical/dental/mental health grievance responses not presented to inmates within seven calendar days from the date received;
2. Following up with the Facility/Bureau Supervisor for non-medical/dental/mental health grievance responses not served to the inmates within 20 calendar days from the date received.
VIII. EMERGENCY COMPLAINT/GRIEVANCE
An emergency complaint/grievance includes, but is not limited to the following:
A. Emergent medical, dental, or mental health issues;
B. Sexual battery, sexual abuse, and/or sexual harassment;
C. Imminent safety issues;
D. Spoiled food;
E. Missing meals;
F. Excessive/inappropriate use of force by staff.
An emergency complaint/grievance shall be processed as follows:
A. Staff receiving an emergency complaint/grievance shall:
1. Immediately deliver a copy of the grievance to the IMP (medical/dental/mental health grievances) or Shift Supervisor/Commander (all non-medical/dental/mental health grievances) for resolution;
2. Document on the original grievance form the name of the staff who received it and place the form into an inmate request drop box for processing if other than a Counselor.
B. The Counselor shall collect and input the Inmate Grievance form in the IGS to include the name of the staff who received the emergency grievance;
C. The Facility/Bureau Supervisor or IMP/Director of Patient Care Services (when applicable) shall investigate and prepare the response;
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MIAMI-DADE CORRECTIONS AND REHABILITATION DEPARTMENT

VOLUME: 15

DSOP: 15-001

YEAR: 2020

VERSION: 2

SUBJECT:

INMATE COMPLAINT/GRIEVANCE PROCESS

D. The inmate shall be presented with the written response to the emergency grievance within seven calendar days.
Note: MDCR/IMP staff receiving an inmate grievance regarding an inmate subject to a substantial risk of imminent sexual abuse, shall take immediate action to protect the inmate and notify the Shift Supervisor/Commander immediately (refer to IP-001 “Inmate Sexual Battery/Abuse/Harassment Prevention and Response” for additional information). The inmate shall be presented with an initial response within 48 hours, and a final response within five calendar days.
IX. WRITTEN GRIEVANCE RESPONSE
When responding to grievances in the IGS, the Administrative Sergeant or the IMP/Nurse Manager shall:
A. Restate or summarize the concern or issue;
B. Cite policies, procedures, standards, etc.;
C. Determine if evidence is provided by the inmate to support the grievance;
D. Provide a detailed response. The grievance resolution shall address all aspects of the concern or issue. The tone of the response shall be professional and courteous;
E. Determine the grievance “Substantiated” if there is evidence or proof that the grievance was valid for the period or circumstances at the time indicated on the request; otherwise, “Unsubstantiated” shall be selected.
Note: Documentation of “Substantiated” or Unsubstantiated” is only used for internal analysis and tracking purposes in the IGS and shall not be included in the response to the grievant.
X. TRACKING SUBSEQUENT ACTIONS
Grievances requiring subsequent action (e.g. referral to a medical specialist, consultation, arranging for special equipment, investigations) shall be processed as follows:
A. SECURITY AND INTERNAL AFFAIRS BUREAU (SIAB) INVESTIGATION
The RPSB Supervisor shall:
1. Update the IGS with the Internal Affairs case number issued by SIAB;
2. Conduct a weekly review of the IGS for grievances referred to SIAB and update all grievance records with the SIAB case number.
B. IMP FOLLOW-UP
The IMP/Director of Patient Care Services:
1. Monitors the outstanding subsequent actions on a monthly basis; and
2. Ensures the IGS is updated upon completion of any subsequent action.

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MIAMI-DADE CORRECTIONS AND REHABILITATION DEPARTMENT

VOLUME: 15

DSOP: 15-001

YEAR: 2020

VERSION: 2

SUBJECT:

INMATE COMPLAINT/GRIEVANCE PROCESS

XI. REPORTING SEXUAL BATTERY/ABUSE/HARASSMENT
The Shift Supervisor/Commander shall be immediately notified of any complaints/grievances alleging sexual battery, sexual abuse, and/or sexual harassment. Inmates may report any incident of sexual battery, sexual abuse, and/or sexual harassment anonymously, or through third parties as follows:
A. Informal complaint to MDCR/IMP staff (verbally or in writing);
B. Formal grievance process;
C. Calling the Rape Crisis Hotline telephone number posted in all housing areas.
The following applies to grievances for alleged sexual battery, sexual abuse, and/or sexual harassment:
A. There is no time limit for inmates to submit a grievance;
B. Inmates may submit grievances to any staff member. Inmates shall not be required to submit inmate grievance forms to the staff member who is the subject of the complaint;
C. Grievances shall not be referred for response to staff who is the subject of the complaint;
D. Inmates may be disciplined for filing a grievance related to alleged sexual battery, sexual abuse, and/or sexual harassment if an investigation determines that the inmate filed the grievance with intent to deceive the process.
Reports of sexual battery, sexual abuse, and/or sexual harassment shall be accepted, documented, and investigated in accordance with Interagency Policy (IP)-001 “Inmate Sexual Battery/Abuse/Harassment Prevention and Response.”
XII. INMATE COMPLAINT/GRIEVANCE AGAINST STAFF, CONTRACTORS, OR VOLUNTEERS
Inmate complaints or grievances alleging staff, contractor, or volunteer misconduct shall be immediately reported to the Facility/Bureau Supervisor for investigation in accordance with DSOP 4-015 “Complaints, Investigations and Dispositions.”
Cases involving allegations of sexual battery, sexual abuse, or use of force shall immediately be forwarded to the IMP/Director of Patient Care Services, Facility/Bureau Supervisor, and SIAB, and shall be processed as follows:
A. The IMP assesses the inmate and updates the IGS;
B. The Facility/Bureau Supervisor shall investigate the allegation, update the IGS, and refer the allegation to SIAB in accordance to DSOP 4-015 “Complaints, Investigations and Dispositions”;
C. SIAB shall investigate referred cases in accordance with DSOP 4-015 “Complaints, Investigations and Dispositions.”
Refer to DSOP 4-015 “Complaints, Investigations and Dispositions,” DSOP 11-041 “Response to Resistance,” and IP-001 “Inmate Sexual Battery/Abuse/Harassment Prevention and Response” for additional information.
XIII. INMATE GRIEVANCE RESPONSE APPEAL
Inmates have the right to appeal a grievance response; however, an inmate that has signed and accepted a grievance resolution cannot appeal the response at a later date.
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MIAMI-DADE CORRECTIONS AND REHABILITATION DEPARTMENT

VOLUME: 15

DSOP: 15-001

YEAR: 2020

VERSION: 2

SUBJECT:

INMATE COMPLAINT/GRIEVANCE PROCESS

Inmate Grievance Response Appeal forms are accessible to inmates in all housing units. Inmates shall complete an Inmate Grievance Response Appeal form and place it into an inmate request drop box within two calendar days from receipt of the grievance response. Assistance shall be provided to inmates in preparing the appeal as described in Section VII.A.
The respective Division Chief or the IMP Director shall provide a response to the inmate grievance appeal within seven calendar days of receiving the Inmate Grievance Response Appeal form.
The decision of the Division Chief or IMP Director is final and there shall be no further appeal. Refer to the Inmate Grievance Response Appeal Process for additional information.
XIV. RECORDS
The Grievance Clerk/IGS Administrator and the Trend Analysis and Action Planning Unit Supervisor shall use the IGS for record keeping and retrieval functions to:
A. Maintain records of all inmate grievances/appeals;
B. Categorize and document each inmate grievance/appeal;
C. Update and create reports (e.g., MDCR Inmate Grievance Report);
D. Follow-up with the bureau/entity on open grievances to ensure the grievance process is completed and a written response is provided to inmates within the established time frame;
E. Ensure records are available to staff with appropriate clearance.
These records shall be used by the RPSB to compile statistical data, conduct trend analysis, and prepare departmental reports (e.g., Quarterly Self-Audit Report).
XV. AUDITING
The inmate grievance process is monitored as follows:
A. The Grievance Task Force, composed of MDCR and IMP staff, shall meet on a monthly basis. The meeting agenda includes, but is not limited to, data analysis of monthly random audits conducted of the inmate grievance process, e.g., response to the requests, response time frames, subsequent actions, number of grievances; medical, dental, and mental health concerns; identifying trends. Findings and recommendations, including changes to policies and training curriculum, shall be presented at the monthly Medical and Corrections (MAC) meetings and the quarterly IMP/Clinical Quality Improvement review.
B. The Facility/Bureau Supervisors shall review the IGS quarterly to identify trends and systemic areas of concern, and submit plans to correct any deficiencies. Results of reviews, to include corrective action, shall be forwarded to the Compliance, Inspection, and Auditing Bureau.
XVI. TRAINING
Staff responsible for the process/resolution of grievances/appeals shall receive a two-hour training overview of the IGS. The training includes, but is not limited to:
A. Navigating through IGS;
B. Entering grievances;

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MIAMI-DADE CORRECTIONS AND REHABILITATION DEPARTMENT

VOLUME: 15

DSOP: 15-001

YEAR: 2020

VERSION: 2

SUBJECT:

INMATE COMPLAINT/GRIEVANCE PROCESS

XVII. XVIII.

C. Providing responses; D. Tracking; E. Entering appeals; F. Generating reports. Refer to the Inmate Grievance System (IGS) Training Manual for additional information. CROSS REFERENCES DSOP 4-003 “News Media and Public Relations” DSOP 4-015 “Complaints, Investigations and Dispositions” DSOP 4-017 “Early Warning and Intervention System” DSOP 4-018 “Quality Assurance” DSOP 6-029 “Discrimination, Harassment, and Retaliation” DSOP 11-021 “Overview of Supervisory Duties and Responsibilities” DSOP 11-041 “Response to Resistance” DSOP 14-001 “Inmate Health Care Services” DSOP 15-006 “Inmate Marriages” DSOP 16-001 “Inmate Disciplinary Procedures” DSOP 17-002 “Inmate Mail” DSOP 17-005 “Limited English Proficiency” DSOP 18-017 “Transgender Inmates” DSOP 19-006 “Subsistence Fee” DSOP 25-001 “Food Services Operation” IP-001 “Inmate Sexual Battery/Abuse/Harassment Prevention and Response” RELATED REFERENCES CHS-011 “Health Care Grievances” Florida Administrative Code Rules 33-103.001 thru 019 Florida Statutes 112.533(2)(a); 119; 944.09(a)(d); 944.331 Health Insurance Portability and Accountability Act of 1996 (HIPAA)

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MIAMI-DADE CORRECTIONS AND REHABILITATION DEPARTMENT

VOLUME: 15

DSOP: 15-001

YEAR: 2020

VERSION: 2

SUBJECT:

INMATE COMPLAINT/GRIEVANCE PROCESS

United States Department of Justice, 42 U.S.C. s. 1997e XIX. STANDARDS

PREA

115.51 (a), 115.52 (b)(1), (c)(1-2), (f) (1-2) (g), 115.54, 115.61 (a)

FMJS

2.10 (f), 3.2(d)

ACA 1. 1-ABC-3D-08; 2-CO-3C-01; 4-ALDF-2A-27; 4-ALDF-4C-01; 4-ALDF-4D-24; 4-ALDF-6B-01

FCAC 2. 11.14 NCCHC 3. J-A-11

XX. REVOCATIONS

Any language in a DSOP, Procedural Directive, Standard Operating Procedure, Post Order, and/or written correspondence that conflicts with this policy is hereby revoked.

FORMS/SUPPORTING DOCUMENTS Inmate Grievance Inmate Grievance Process Inmate Grievance Response Appeal Inmate Grievance Response Appeal Process Inmate Grievance System (IGS) Training Manual Inmate Handbook Inmate Orientation Statement Inmate Request

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DEFINITIONS
DSOP 15-001 “Inmate Complaint/Grievance Process”
Calendar Days All days in a month including weekends and holidays. Emergency Complaint/Grievance A complaint that includes but is not limited to the following: sexual battery, sexual abuse, and/or sexual harassment; emergent medical, dental, or mental health issues; imminent safety issues; food spoilage; missing meals and excessive/inappropriate use of force. Emergent
A medical or mental health condition which, in the absence of immediate treatment, could result in serious harm.
Frivolous Lacking in substance. Claim which has no basis in fact. Grievance A formal written complaint submitted by the affected inmate regarding an unresolved issue. Grievance Clerk An employee designated by the Reentry Program Services Bureau (RPSB) Supervisor in each facility/bureau who assists in the processing of complaints/grievances and serves as the custodian of such records. Informal Complaint A verbal and/or written communication with staff for informal resolution of an issue. Inmate Medical Provider A professional entity that provides medical services to the inmate population on behalf of MDCR. Staff Misconduct Actions performed by staff that is unethical, against established departmental guidelines, unconstitutional, or criminal in nature. Substantiated A ruling rendered supporting a complaint due to proof and/or evidence obtained concerning a formal written complaint/grievance. Unsubstantiated A ruling rendered not supporting a complaint due to lack of proof and/or evidence concerning a formal written complaint/grievance.

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MIAMI–DADE COUNTY
Corrections aM ndiaRmei-hDaabdileitaCtioounnty DCeoprraercttmioennstand Rehabilitation
Inmate Handbook

cv-21457-KMW Document 66-2 Entered on FLSD Docket 04/21/2020 P

cv-21457-KMW Document 66-2 Entered on FLSD Docket 04/21/2020 P
MIAMI–DADE COUNTY
Corrections and Rehabilitation Department
Here is What You Can Expect
You are in the custody of the Miami-Dade Corrections and Rehabilitation Department (MDCR). MDCR is committed to providing safe, secure and humane detention during your incarceration. We hope that you will take advantage of the opportunities, programs, and services available to you.
Information from this Handbook and the Inmate Orientation Video will help you become familiar with MDCR. It provides important information about available services, your rights, your responsibilities, and the rules you must follow while in jail. The purpose of this information is to not only keep you safe but protect the safety of visitors, the public and the staff.
Please remember that you must respect the rights of other inmates, staff, volunteers, and visitors. If you do not follow the Department’s rules, the directions of the corrections staff, or your actions become a threat to the safety and well-being of others, you may face disciplinary action and/or criminal charges.
MDCR does not permit discrimination because of race, color, national origin, gender, sexual orientation, or disability.
If you do not understand anything in the Handbook and need help, or if you have a problem/ concern, please feel free to ask any member of MDCR for assistance.
Thank you,
Miami-Dade Corrections and Rehabilitation Department

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MIAMI–DADE COUNTY
Corrections and Rehabilitation Department
Miami-Dade County Mission Statement Delivering excellent public services that address our community’s needs and enhance our quality of life.
MDCR Mission Statement We, the Miami-Dade County Corrections and Rehabilitation Department, serve our community by providing safe, secure and humane detention of individuals in our custody while preparing them for a successful return to the community.

The information described within this handbook may change from time to time with or without notice.

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MIAMI–DADE COUNTY
Corrections and Rehabilitation Department
Table of Contents
Directory – MDCR Entities...................................................................................................... v Directory – Other Entities...................................................................................................... vi Directory – Inmate Speed Dial Numbers............................................................................... vii
I. General Information................................................................................................. 1 II. Inmate Rights (RI) and Responsibilities (RE)........................................................ 1 III. Prison Rape Elimination Act..................................................................................... 2
A. Zero-Tolerance Policy.............................................................................................. 2 B. Prohibited Acts........................................................................................................ 2 C. Protecting Yourself from Sexual Abuse and Harassment........................................ 3 D. Reporting Sexual Acts............................................................................................. 3 E. Treatment................................................................................................................. 4 IV. The Americans with Disabilities Act...................................................................... 4 V. Limited English Proficiency (LEP)........................................................................... 4 VI. Processes.................................................................................................................. 5 A. Booking.................................................................................................................. 5 B. Intake .................................................................................................................... 5 C. Inmate Classification.............................................................................................. 5 D. Release................................................................................................................... 6 E. Foreign Nationals.................................................................................................... 6 VII. Inmate Complaint and Grievance Processes......................................................... 6 A. Sexual Abuse/Battery/Harassment ........................................................................ 6 B. Informal Complaints................................................................................................ 6 C. Grievances.............................................................................................................. 7 D. Things You Cannot Grieve....................................................................................... 7 E. Emergency Complaints/Grievances........................................................................ 7 VIII. Internal Affairs Complaints and Investigations..................................................... 8 IX. Health Care Services................................................................................................ 8 A. Sick Call.................................................................................................................. 8 B. Medication.............................................................................................................. 8 C. Co-Payments/Fees................................................................................................. 9 D. Post-Release Medication...................................................................................... 10 X. Headcount............................................................................................................... 10 XI. Authorized Property............................................................................................... 10 XII. Contraband.............................................................................................................. 10 XIII. Confiscated Items................................................................................................... 11 XIV. Shakedowns/Searches.......................................................................................... 11 XV. Emergency Procedures and Evacuation Drills..................................................... 11 XVI. Housekeeping......................................................................................................... 11 A. Things You Cannot Do.......................................................................................... 12 B. Personal Hygiene.................................................................................................. 12 C. County Property.................................................................................................... 13 D. Clothing, Uniform, Bedding and Linen.................................................................. 13 E. Dress Code........................................................................................................... 13 F. Meals..................................................................................................................... 14

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MIAMI–DADE COUNTY
Corrections and Rehabilitation Department

XVII. Bail Bonds............................................................................................................... 14 XVIII. Attorneys, Public Defenders and Regional Counsel............................................ 14 XIX. Legal Research Services....................................................................................... 15 XX. Programs and Services.......................................................................................... 15
A. Recreation............................................................................................................ 15 B. Faith-Based Services........................................................................................... 15 C. Reentry Program ................................................................................................. 15 D. Pretrial Release Program...................................................................................... 16 E. Veterans Justice Outreach (VJO) Program............................................................ 16 F. Inmate Gain Time.................................................................................................. 16 G. Credit Time Served............................................................................................... 16 XXI. Inmate Worker Status............................................................................................ 17 XXII. Inmate Mail...............................................................................................................17 A. General Guidelines..................................................................................................17 B. Privileged Mail........................................................................................................18 C. Personal Correspondence.......................................................................................18 XXIII. Inmate Telephone Use............................................................................................. 19 XXIV. Family Emergency................................................................................................... 19 XXV. Visitation.................................................................................................................. 20 A. Master Visitation List............................................................................................. 20 B. General Guidelines................................................................................................. 20 C. Rules and Regulations for Visitors......................................................................... 20 D. Things You Cannot Do........................................................................................... 21 E. Attorney Visits........................................................................................................ 21 XXVI. Inmate Financial Accounts..................................................................................... 22 A. Deposits................................................................................................................. 22 B. Indigent Inmates.................................................................................................... 22 C. One-Time Processing Fee...................................................................................... 22 D. Daily Inmate Subsistence Fee................................................................................ 22 E. Exempt Inmates .................................................................................................... 23 F. Inmate Commissary............................................................................................... 23 G. Account Discrepancy............................................................................................. 24 XXVII. Inmate Money Release Authorization.................................................................... 24 XXVIII.Suicide Prevention.............................................................................................. 24 XXIX. Inmate Disciplinary Process................................................................................... 25 A. Informal Discipline................................................................................................. 25 B. Formal Discipline................................................................................................... 25 C. Appeal Process...................................................................................................... 26 D. Criminal Prosecution.............................................................................................. 26 XXX. Violations and Sanctions........................................................................................ 26 A. Category I.............................................................................................................. 26 B. Category II............................................................................................................. 27 C. Category III............................................................................................................ 28 D. Category IV............................................................................................................ 29 XXXI. Confinement............................................................................................................. 30 A. Administrative........................................................................................................ 30
B. Disciplinary............................................................................................................ 30

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MIAMI–DADE COUNTY
Corrections and Rehabilitation Department

DIRECTORY — MDCR ENTITIES

BOOT CAMP PROGRAM 6950 NW 41 Street Miami, FL 33166 (786) 263-5810
CENTRALIZED INTAKE CENTER 7000 NW 41 Street Miami, FL 33166 (786) 263-5305
CORRECTIONS HEALTH SERVICES Medical/Mental Health (786) 263-4131
COMMISSARY UNIT 6950 NW 41 Street Miami, FL 33166 (786) 263-5700
FAITH-BASED SERVICES 13850 NW 41 Street Doral, FL 33178 (786) 263-4929 (MWDC & TTC) (786) 263-5392 (PTDC, TGK, Boot Camp)
FOOD SERVICES BUREAU 3595 NW 72 Avenue Miami, FL 33122 (786) 263-6350
INMATE FINANCE UNIT Inmate Accounts 2525 NW 62 Street, Suite 2117 Miami, FL 33147 (786) 263-5413, 5414, 6140
MDCR HEADQUARTERS 2525 NW 62 Street, Suite 2000 Miami, FL 33147 (786) 263-6000
MDCR PREA COORDINATOR (786) 263-6318

METRO WEST DETENTION CENTER (MWDC) 13850 NW 41 Street Doral, FL 33178 (786) 263-5110
MONITORED RELEASE UNIT 1401 NW 7 Avenue Miami, FL 33136 (786) 263-4899
PRE-TRIAL DETENTION CENTER (PTDC) 1321 NW 13 Street Miami, FL 33125 (786) 263-4110, 4111
PRETRIAL SERVICES BUREAU 1401 NW 7 Avenue Miami, FL 33136 (786) 263-5450 (TGK) (786) 263-6700
REENTRY PROGRAM SERVICES BUREAU 2525 NW 62 Street, Suite 2000 Miami, FL 33147 (786) 263-6070
SECURITY & INTERNAL AFFAIRS BUREAU 601 NW 1 Court, 17th Floor Miami, FL 33126 (786) 263-6500
TRAINING AND TREATMENT CENTER (TTC) (Temporarily Closed) 6950 NW 41 Street Miami, FL 33166 (786) 263-5710, 5711
TURNER GUILFORD KNIGHT CORRECTIONAL CENTER (TGK) 7000 NW 41 Street Miami, FL 33166 (786) 263-5341 (786) 263-5600 (Info Desk)

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DIRECTORY — OTHER ENTITIES

ARAMARK CORRECTIONAL SERVICES (Commissary) TouchPay/Inmate Deposit Service 1-800-777-7090 info@aramarkcorrections.com
GLOBAL TEL-LINK (GTL) (Telephone System) Customer Service (866) 230-7761
MIAMI-DADE OFFICE OF THE STATE ATTORNEY (305) 547-0100
MIAMI-DADE CLERK OF COURTS (305) 275-1155
MIAMI-DADE COUNTY GOVERNMENT SERVICES WEBSITE www.miamidade.gov
MIAMI-DADE CONTACT CENTER 311
MIAMI-DADE COUNTY DEPARTMENT OF TRANSPORTATION AND PUBLIC WORKS – CUSTOMER SERVICE Office Hours: Monday-Friday 7 a.m. to 8 p.m. Saturday 8 a.m. to 5 p.m.

HOMELESS TRUST HOTLINE (877) 994-4357
PUBLIC DEFENDER’S OFFICE County Court Division Misdemeanor and Traffic Cases (305) 545-3348
Domestic Representation Unit (Domestic Violence Cases) (305) 349-5780
Felony Division Bond Hearing Unit (305) 324-0747 (Inmate) (305) 545-1600 (Family/Friend)
Early Representation Unit (305) 324-0747 (Inmate) (305) 545-1600 (Family/Friend)
Post Arraignment Felony Division Information (305) 324-0747 (Inmate) (305) 545-1600 (Family/Friend)
OFFICE OF REGIONAL COUNSEL 401 NW 2 Avenue Miami, Florida 33128 (305) 679-6550, (305) 679-6590

English/Spanish Translation (305) 770-3131
For trip planning (305) 770-3131 (Option 1)

RAPE CRISIS HOTLINE (305) 585-7273

If you live south of SW 216 Street (305) 891-3131

TTY Users (DEAF/Hard of Hearing) (305) 468-5402

TOUCHPAY KIOSK www.touchpayonline.com

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DIRECTORY —INMATE SPEED DIAL NUMBERS (TOLL FREE FROM INMATES’ PHONES)
You may use the Inmate Telephone System's Speed Dial Numbers to contact these agencies to obtain assistance in planning for your release from jail. There is no cost for making these calls from inside any Miami-Dade Corrections and Rehabilitation Department jail cell.
To make a call, enter the * sign and the four-digit speed dial code followed by the # sign. The call will be connected as a traditional telephone call.

Speed Dial #

Agency

*9010#

United States Citizenship and Immigration Services

*9011# United States Department of Justice

*9012# *9013#

Florida Coalition Against Sexual Violence
Miami-Dade Crime Stoppers

*9014# *9016#

Florida Department of Law Enforcement
Social Security Administration

*9018# Florida Relay Service

*9019# *9020# *9021#

Substance Abuse and Mental Health Services
National Call Center for Homeless Veterans
Miami-Dade County Homeless Trust

Service Provided Assistance with Immigration Services and Issues Information Regarding Immigration Court Report Domestic Violence and Sexual Abuse Activities Report Information on Criminal Activity Report Security Concerns or Threats
Social Security Card and Disability Assistance Assistance for Hearing Impaired Individuals Treatment Referral Service
Assistance for Veterans
Emergency Shelter

*9022# Rape Crisis Hotline

Rape Treatment Center

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I. General Information
You were given a jail number when you were booked. This information is on your copy of the Complaint/Arrest Affidavit (A-Form) and the Inmate Property Receipt. Remember your jail number to request assistance and services.

You may be housed in a unit where officers work inside the unit (direct supervision) or in a housing unit where officers and other staff work outside the unit (indirect supervision). A counselor will be available to assist you while you are in jail. If you need an Inmate Request Form, Inmate Request for Health Services Form, Inmate Classification Appeal Form, Grievance Form, etc., that is not available in your housing area, tell your counselor during their daily rounds, or ask an officer.

You are encouraged to report any concern to staff immediately and allow them an opportunity to address those concerns. For example: • Need for emergency medical, mental health, and/or dental care; • Any illegal activities you hear about or see happening; • If you are requested by another inmate to do something that you don’t want to do; or, • Any problem with your housing area, such as plumbing, lighting, etc.

II. Inmate Rights (RI) and Inmate Responsibilities (RE) A. (RI) You have the right to be treated fairly and with respect.
(RE) You must respect MDCR staff, visitors and other inmates.

B. (RI) You have the right to be informed of the rules, procedures and schedules regarding some of the operations of MDCR facilities. (RE) You must become familiar with, and follow the rules of MDCR.

C. (RI) You have the right to practice the religion/faith of your choice. You may attend services and practice your religion/faith, as long as it will not interfere with the facility’s security, safety or internal order. (RE) You must respect other people’s right to practice their faith.

D. (RI) You have the right to basic healthcare services such as dental, medical, mental, and vision. You also have the right to meals, personal hygiene items, water, laundry, mattress and pillow, shower, proper ventilation, and exercise. (RE) You must keep yourself and your housing area clean. You must also take care of the items provided to you.

E. (RI) You have the right to visitation from family and friends, unless the visits interfere with the facility security, safety or internal order. You and your visitors must follow MDCR rules and visitation schedules at all times. (RE) You must conduct yourself properly during visits.

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F. (RI) If you are a pre-trial inmate, you have the right to legal assistance. A contracted vendor provides legal research services. (RE) You must make your request according to established guidelines and schedules.
G. (RI) You have the right to be protected from sexual abuse, sexual battery, sexual harassment, and sexual misconduct. There is no such thing as mutual sexual activity between inmates, or between staff and inmates. (RE) MDCR has zero-tolerance for any type of sexual activity. You are encouraged to report any of these acts immediately to an officer, counselor, Internal Affairs, or other staff.
III. Prison Rape Elimination Act It is against federal, state, and local laws to have sexual activity while in MDCR custody. MDCR rules prohibit inmates from performing a sexual act with another inmate, MDCR employee, volunteer or contractor. Violators will be guilty of sexual misconduct. Offenders may face criminal prosecution and administrative action. Prohibited sexual acts include, but are not limited to: rape, sexual abuse, sexual battery, sexual harassment, and sexual misconduct. A video will be shown on personal safety that talks about your right to be free from sexual abuse/harassment. The video also outlines policies and how to report any incidents if you see them happening, or if they happen to you.
A. Zero-Tolerance Policy MDCR has a “Zero-Tolerance” policy for sexual abuse and sexual harassment. MDCR has established standards to monitor, detect, and prevent these acts. MDCR will: • Report all complaints of sexual abuse and sexual harassment to local and federal authorities
immediately; • Train staff to recognize and respond to the signs and symptoms of abuse and harassment; • Make sure that no inmate is retaliated against by other inmates or staff for reporting such
acts, or cooperating with investigators; or, • Hold all staff, contractors, volunteers, and inmates (adult or juvenile) accountable to the
greatest extent possible.
B. Prohibited Acts The following acts are ALWAYS PROHIBITED (cannot be done with an inmate), are NOT TOLERATED, and should be reported immediately: • Any sexual/obscene activity or act by gesture (including masturbation), in writing or spoken
with or against staff, volunteers, contractors, or inmates (even if the inmate agrees); • Any sexual activity, including being touched or being forced to do something sexual
to someone; • Any oral, anal, or vaginal penetration by an object or in union with the sexual organ of some-
one else;

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• Any sexual advance or sexual comment to someone, or any attempt to touch someone’s genitalia, anus, groin, breast, inner thigh, or buttocks with the intent to abuse, humiliate, harass, degrade, arouse, or gratify;
• Any sexual contact with or by someone in exchange for gifts or protection; • Failure to respect an inmate’s limited privacy right in order to sexually harass or sexually
intimidate the inmate, such as gawking at someone in the shower; • Influencing or threatening an inmate’s safety, custody, privacy, housing, privileges, work
detail, or program status in exchange for sexual favors; or, • Retaliation against an inmate who reports a prohibited sexual act.

Report any of these acts or other sexual acts that involve you or others. By speaking up, you are protecting yourself and other inmates. You will also be making your stay safer.

C. Protecting Yourself from Sexual Abuse and Harassment There are steps that you can take to protect yourself from becoming a victim: • You should immediately report any sexual harassment or threat of sexual abuse. If you have
a fear/concern about your personal safety; tell any MDCR staff, chaplain, volunteer, teacher, supervisor, medical staff, mental health staff, or professional visitor, etc. • Place yourself in the housing area where staff can see you; • Avoid areas where no staff is present; • Have a confident body language; • Do not talk about sexual topics, family relationships, sexual experiences, etc.; • Do not gamble or become indebt to anyone who may want your debt paid with sexual favors; • Do not accept commissary items, gifts, or favors from other inmates; • Do not buy a lot of commissary items or say that you have money available because you may be approached to pay for protection, etc.; • Be aware that physically stronger inmates may look for victims who appear weaker (either physically or mentally).

D. Reporting Sexual Acts

All reported sexual acts will be taken seriously and will be investigated. If you think you were

sexually harassed, abused, or threatened while in custody, you should report it to MDCR staff

immediately. You may also:

• Report it to anyone you feel comfortable with such as a chaplain, teacher, volunteer, coun-

selor, medical or mental health staff, friend or loved one who can report it for you;

• Call the Rape Crisis Hotline at *9022# or (305) 585-RAPE (7273) 24 hours a day, 7 days

a week. The call is free and confidential. Other important telephone numbers are listed in

the Directory section of this handbook and on the Sexual Abuse Awareness posters in housing areas. If you call the hotline for counseling, you must give their counselor approval to contact MDCR and file a report for you;

BREAK the Silence!
REPORT SEXUAL ABUSE & ASSAULT TO STAFF OR CALL (305) 585-7273 OR *9022#
IT IS FREE AND CONFIDENTIAL!
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• Write or call the Security and Internal Affairs Bureau. Their telephone number is also located in the Directory section; or,
• File a grievance.
E. Treatment If you are sexually abused or assaulted, you may need to have a medical exam for collection of evidence, so do not: shower, clean yourself, use the toilet, brush your teeth, change clothes, drink or eat until you are cleared by medical staff. • The local police department will be contacted to start an investigation. • You and the offender will be moved to different housing assignments during the investigation. • An advocate will consult with you. You may receive a referral to a mental health specialist. • You will receive medicine to prevent a sexually transmitted disease (This is one of the rea-
sons why you should tell someone about the incident immediately). You will receive follow-up examinations. If you are a female, you will receive a pregnancy test, if needed. • You will be provided counseling services, crisis counseling, coping skills, suicide prevention, and mental health counseling.
IV. The Americans with Disabilities Act MDCR complies with the Americans with Disabilities Act (ADA). We do not discriminate against any inmate on the basis of a disability. If you have a disability, you may attend programs, services and activities for which you qualify. If you are deaf, hard of hearing, blind, visuallyimpaired, need a wheelchair, etc., you must notify staff so they may help you function while you are in jail. • If you need assistance, fill out the Inmate Request Form. Give the form to your counselor
when they visit the unit, or to an officer. • If you need help with reading or writing a document, let your counselor or an officer know. • If you have a disability, you will be housed in “general population” unless such housing
jeopardizes your safety, the safety of staff or other inmates. If you believe you need special housing because of your disability, your request will be reviewed by an Inmate Medical Provider, who will assess your medical needs. • If you are blind or visually-impaired, a person will read documents to you or give you large copy texts, based on your needs and availability. If you are deaf or hearing-impaired, at your or your family’s request, a sign language interpreter will be provided. If a family member or anyone linked to your case is deaf or hearing-impaired, you will have access to a Telecommunication Device for the Deaf (TDD/TTY) to communicate with them. • You will be provided with dental, medical, and mental health care, if needed. If you need crutches, wheelchair, hearing aid, glasses, etc., you must fill out an Inmate Request for Health Services Form. You must give the form to medical staff. You will be medically evaluated. If it is determined that you need the item, it will be provided.
V. Limited English Proficiency (LEP) If you have a limited ability to read, speak, write, or understand English, ask an officer or any

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staff member for help. A Point Book with pictures is available to assist you in communicating your needs. MDCR may use bilingual staff to communicate with you or we will contact our interpreting services for assistance. The interpreting services are available to help access programs and information. The interpreting services may also help you understand MDCR rules, medical and mental health care, gain eligibility for treatment programs, and/or housing assignments based on your classification.
VI. Processes Each inmate goes through a booking, intake and classification process.
A. Booking The jail number given to you during booking is used to identify you while in jail. It is used for all transactions, such as commissary, inmate financial account, mail, medical, visitation, etc.
B. Intake During the intake and booking process, a detailed receipt of your personal property was provided to you. This includes your clothes and/or money. Your money will be placed in an inmate financial account. Your other personal property will be kept in storage while you are in jail. If you prefer, you may provide a notarized statement that authorizes MDCR to dispose of your personal property or release it to a friend or relative. Your counselor can notarize the statement for you. Any unauthorized personal property and/or money found on you after this process is considered contraband and will be taken. The money will be placed in the Inmate Welfare Fund for the benefit of all inmates, not into your inmate financial account. Personal property will be disposed of according to our contraband policy. You must pick up your stored property within 30 days from your release date or it will be discarded.
During the intake process, you may have been asked for your social security number (SSN). It will be used for official reasons such as identification, verification of identity, criminal records checks, veteran status, etc.
A medical and mental health screening was provided to you. If you think something was missed during the screenings, such as any medical/mental/disability assistance issue, alcohol or drug addiction, prescription drugs that you have taken, etc., you must report it immediately. You also received information on reporting sexual abuse and sexual harassment. If you do not want to tell a staff member, write the information on an Inmate Request Form and give it to a counselor or officer.
C. Inmate Classification If you stay in custody after your first court appearance, a classification officer will evaluate you to determine your classification. Your classification will determine your housing area based on any disabilities, protective custody status, facility security risk, seriousness of current charges/convictions, serious offense history, escape history, previous disciplinary history, or prior felony convictions.

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The Classification Unit will review your classification at least every 90 days. Your classification may change because of:
1. Added charges 2. Changes to your sentence or your case is closed, or 3. Changes in your behavior.
A change in your classification may result in a change in your housing assignment. You have the right to appeal your classification once every 30 days. To appeal, you must fill out an Inmate Classification Appeal Form that you may request from an officer or counselor.
D. Release Inmates who are released from jail could expect the release process to take an average of 8-10 hours. However, in some cases, the release process could take longer.
E. Foreign Nationals If you are not a United States citizen or have dual citizenship with the United States and another country, you must tell us. In addition: • You are entitled to let your consulate/embassy know that you are in custody. It is your right
to communicate with them regardless of your visa or immigration status. • You may ask staff to let your consulate know that you are in custody. Depending on your
country, they may be informed by MDCR even if you do not ask.
VII. Inmate Complaint and Grievance Processes A complaint and grievance process is available to you so you may properly dispute your custody conditions (general complaint), such as facility operations, procedures, etc. The process for reporting sexual abuse, battery, or harassment is handled differently than general complaints. No one will retaliate against you for using the complaint or inmate grievance process.
A. Sexual Abuse/Battery/Harassment When you have an issue regarding sexual abuse, battery or harassment, it will be accepted, documented, and investigated. You may make this type of complaint by talking to any MDCR staff or by putting it in writing. You do not need to write it on a specific form. You do not have to tell us who you are. You can have someone report the complaint for you. There is no time limit to file this type of complaint, although it helps the investigation when you report it immediately.
B. Informal Complaints When you have a complaint about general issues, you should tell an officer or counselor in your housing area. Staff will discuss the issue with you and try to resolve it. If you do not agree with our resolution, you may use an Inmate Request Form to write and file your informal complaint. You must turn in the form within 5 workdays from when the situation/incident occurred.

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C. Grievances 1. You can file a grievance without filing a complaint. To file a grievance, you must fill out
an Inmate Grievance Form. The forms are available in all housing areas. If you need help writing your grievance, ask a counselor, officer, or any staff for help. Give the completed grievance form to a counselor, officer, or staff within 10 workdays from when the situation/ incident happened. If your complaint is about a staff member, give the form to any other staff member or your counselor. 2. The grievance will be returned to you if:
• The form is incomplete; • The form has more than 1 complaint (issue); • The form has more than 1 grievant (inmate filling the complaint); • The grievance is written offensively, e.g. profanity, threats; • The grievance has no basis in fact; or, • The form contains an issue that cannot be grieved. 3. If your grievance form is returned, you may fill out a new form. You must return the grievance form to staff within 2 workdays, unless the issue cannot be grieved. 4. You will be notified in writing that your grievance is being processed. You will receive a response/resolution: • Within 20 calendar days, if it is non-medically-related, or • Within 7 calendar days, if it is an emergency or medically-related. 	If the grievance is sent to Internal Affairs for investigation, you will be told in writing that the grievance is closed, and an investigation will begin. If the grievance is sent to Risk Management for a loss property grievance, you will be told in writing. 5. If you do not agree with the result, you may reject it and/or request an appeal. You must then sign the form indicating your decision. If you do not sign the form, the grievance process will end. 6. If you want to appeal, you must fill out a MDCR Inmate Grievance Appeal Form within 2 workdays after you receive the grievance resolution. You will receive the appeal response within 7 workdays. The grievance appeal decision is final.
D. Things You Cannot Grieve 1. State and federal court decisions; 2. Local, state, and federal laws/regulations; 3. Issues that are beyond MDCR’s authority; and, 4. Anything that you can appeal, such as your classification level, disciplinary findings, etc.
E. Emergency Complaints/Grievances Emergency complaints or grievances that will be responded to immediately include: 1. Sexual assault, battery, misconduct, abuse, or harassment; 2. Immediate medical and/or mental health issues; 3. Disability issues; 4. Safety issues;

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5. Spoiled food; 6. Missing meals; and, 7. Too much or inappropriate use of force by staff.
VIII. Internal Affairs Complaints and Investigations When the Security and Internal Affairs Bureau (SIAB) receives a complaint that involves inmate sexual abuse or misconduct by staff (excessive use of force, harassment, etc.), SIAB may notify the State Attorney’s Office, as appropriate. • If you file a complaint and you are released before the investigation is completed, the results
will be sent to you by certified mail, once the investigation is over. • If your complaint is sent by U.S. Mail, a certified letter will be sent telling you that an Internal
Affairs investigator will contact you. Please ensure that you have an up-to-date address and valid telephone number listed on your complaint. • If you make a complaint after you are released, but did not make it in person, an investigator will ask you to report to SIAB to give a sworn statement. Bring any supporting documents/ witnesses to assist in investigating the incident. • If you are still in our custody, an investigator may come to you to take a sworn statement.
IX. Health Care Services Medical staff will provide necessary medical, dental, and mental health care.
A. Sick Call If you are sick and need non-emergency medical, dental or mental health care, you must fill out an Inmate Request for Health Services Form. Medical staff will be available daily in your housing area to take your request form.
You must give the form to a nurse or other medical staff. Keep the pink copy of the form for your records. If you can’t fill out the form, ask a nurse while he/she is in your housing area and he/she will help you.
If you feel that you need help and can’t wait to fill out the form, notify any staff member. A health professional will evaluate your need immediately. If the health professional does not think it is urgent, they may ask you to fill out the Inmate Request for Health Services Form.
B. Medication If you need medication, qualified licensed medical staff will prescribe it, if appropriate. A nurse will give it to you. You may also buy some over-the-counter medications from the Commissary. You should not share any medications with anyone else, as this is a rule violation and may result in disciplinary action.
A nurse will give you prescribed medication in your housing unit. If you are not sure you are getting the correct medication, tell the nurse.

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You must swallow the medication in front of the nurse and the officer. You will be asked to open your mouth, hands and lift your tongue to ensure that you have swallowed the medicine. It is a rule violation if the nurse is not allowed to check your mouth and hands. The rule violation may result in disciplinary action.
To get your medication, you must wear your uniform shirt and pants.
C. Co-Payments/Fees Your account will be charged when you receive medical services. Once services are rendered, you will receive a receipt for each medical service charged to your account. If you do not have funds in your account, we will still provide all necessary care and medication, but a deduction will be made when money is deposited into your account.
Co-payments/fees* are: • Medical sick call.............................................................................................................$5.00 • Nurse sick call................................................................................................................$3.00 • Dentist sick call..............................................................................................................$5.00 • Dental Assistant sick call...............................................................................................$3.00 • Prescription fee (each Rx)..............................................................................................$5.00 • Diagnostic services........................................................................................................$2.00
*Outside providers may charge additional fees.
You may use the complaint/grievance process if there are any discrepancies with any charges made to your account.
You will not be charged for the following treatment initiated by medical/mental health providers: • Admission health screening (medical, dental, and mental health) or any required follow-up to
the screening; • Mental health care, including drug abuse and addiction treatment; • Required health assessments; • Emergency care; • Hospitalization; • Infirmary care; • Prenatal care; • Lab tests that may be done in the jail; • Diagnosis and treatment of contagious diseases; • Appointments or services, including follow-up appointments and referral visits that are initi-
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D. Post-Release Medication If you have a scheduled release, we will give you up to a 7-day supply of medication used to treat a serious or chronic illness. We will also refer you to a doctor in the community, if needed.

If you have an unscheduled release and do not get medications or a referral, please call the CHS Medication Hotline at (305) 585-6330 within 24 hours. If you are eligible, the Hotline will let you know how to get your medication.

X. Headcount Headcount, the process of identifying and counting inmates, is done 3 times a day to ensure inmates are safe and where they are supposed to be. During headcount, you are not allowed to talk or move without permission from MDCR staff. If you interfere with headcount procedures, you may be charged with a rule violation and face disciplinary action.

XI. Authorized Property If you are not released after your first court appearance, you may be given:

Uniform Uniform T-shirts Shorts

Bras &

Shower

Panties (F) Slides

or Briefs (M)

Sneakers Socks (for Inmate Workers)

1

2

2

2

1 pair

1 pair

2 pairs

Blanket Sheets

1

2

Towels and Pillowcase Laundry

Washcloths

Bag

2

1

1

Clear Inventory Bag
1

Welcome Kit
1

You may buy more clothing items from the inmate commissary, but you may not have more than the amount below.*

T-shirts 4

Bras

Panties Briefs

(Females (Females (Males

Only) Only) Only)

4

7

4

Socks Sneakers Shower Slides
4 pairs 1 pair 2 pairs

Sweatshirt and Sweatpants
1

*Extra clothing item(s) will be taken from you. You must keep clothing and commissary items inside your clear inventory bag.

XII. Contraband Contraband is anything inside a jail, on the property of a facility, or in your possession after intake that was not issued to you or approved by MDCR. Contraband is also considered any item that: • Presents a threat to the security or order of the facility/MDCR;

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• Was not bought from the commissary or approved methods; • Was changed from its original condition or shape, for example, a toothbrush that has been
sharpened into a knife or “shank”; or, • You have more than the quantity MDCR allows, such as 5 T-shirts.
It is against the law to have, make, or hide contraband in a county detention facility. If you violate this law, you may face administrative, disciplinary and criminal charges.
XIII. Confiscated Items If contraband is found in your possession, it will be taken. A. If you are found with cash or coins, it will be placed into the Inmate Welfare Fund for the
benefit of all inmates. B. If you are found with unauthorized or excessive personal property, it may be placed in our
Property Room for storage or destruction. C. If you are found with any other contraband during a search, you will be charged with a rule
violation. The rule violation may result in an administrative or criminal case against you.
XIV. Shakedowns/Searches MDCR staff will conduct shakedowns (security searches, including searches for unauthorized items) without letting you know in advance. You must allow staff to search you, your property, and the housing area at any time to ensure a safe and secure facility. Additionally, trained dogs may be used to help conduct the search.
XV. Emergency Procedures and Evacuation Drills You may have to participate in emergency/evacuation drills. During drills and/or actual emergencies, you must stay quiet and follow all of the instructions from MDCR staff.
XVI. Housekeeping You must keep your cell, immediate living area, and common housing areas clean at all times. Cleaning supplies will be provided such as detergent, mops, etc. You must also: • Make your bed when you get up in the morning. If you are not lying on the bed, it must stay made; • Put items away before any housing unit activities such as watching television, playing games
or recreational events can take place; • Eat your meals within one hour from when they are served. You are not allowed to save any
food item from your tray unless you are diabetic, pregnant or have been medically approved by the Inmate Medical Provider. You must keep food items that you buy from the commissary closed and stored in your clear inventory bag; • Ask for a storage box for legal documents that cannot fit in your inventory bag; and, • Report broken items such as tables, sink, toilet, etc., to staff immediately.

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A. Things You CANNOT Do • Bring blankets, sheets, towels or pillows to the dayrooms; • Hang blankets, sheets, pillowcases, towels, clothing items, etc., from bunks, doorways, or
handrails; • Make clotheslines or hang your laundry; • Place anything in, on, or between bars, doors, windows, windowsills, air vents, walls, or
activity areas; • Cover or block surveillance cameras; • Cover or block cell lights, air vents, bars, or doors; • Draw or write on walls, doors, or windows; • Bang or beat on glass, bunks, bars, or doors; • Store anything (cups, bowls, books, etc.) on empty bunks; • Sit on top of tables; • Spit on the floor; • Throw trash on catwalks or corridors; or, • Accumulate excessive papers - you should not have more than 3 books and 3 magazines, or
a combination of 6 periodicals, and no more than twenty-five (25) pictures.

B. Personal Hygiene

You will be living with other inmates. You must keep good personal hygiene to avoid catching

and/or spreading any contagious diseases and to keep a healthy environment. Basic items to

keep you clean will be provided. You may buy more items from the inmate commissary. Also:

• During the intake process, you were issued a Welcome Kit that contained a toothbrush,

toothpaste, deodorant, and a comb. Future kits may be received, free of charge, if you are

considered indigent by MDCR;

• You must wash your hands with soap and water after using the bathroom; before and after

eating, recreational activities, work details, and using cleaning chemicals;

• You have the opportunity to shower every day, but you must shower with soap and water, at

least twice a week. You must shower when you come back from recreation or work detail;

• Do not share your personal things (soap, sheets, towel, etc.);

• You will have the opportunity to stay well-groomed (facial hair, hair, nails):

 Your facial hair (beards, goatees, etc.) must be neat and clean;

 You can fill out an Inmate Request Form if you need hair clippers. The schedule for use of hair

clippers is posted in each unit. After using a shaving razor or hair clippers, you must clean them

with cleaning solution before they are returned;

 You must keep your nails clean and neatly cut. Your nails cannot be longer than ¼” from the end of your fingertip.

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C. County Property Criminal charges may be filed against you for destroying, tampering with or stealing Miami-Dade County property, including all things in the housing areas, facility, vehicles, etc. You must return items given to you in reasonable condition, when you are released. These items include the clear inventory bag, uniform, blanket, sheets, pillowcase, towel, or any other County property.
D. Clothing, Uniform, Bedding and Linen A laundry schedule is posted in your housing area that tells you when your personal clothes, uniform, blanket, sheets, pillowcase, and towels will be washed; you are not allowed to wash those items yourself. Uniforms will be exchanged twice a week; Metro West Detention Center uniforms will be exchanged once a week with two (2) uniforms issued during the exchange. Sheets, pillowcases, and towels will be exchanged once a week. Blankets will be exchanged once a month. Laundry service for your personal clothes is available at least twice a week. Your personal clothes must be placed in the laundry bag given to you before being washed.
When going to court, you must put all your sheets, blanket, pillowcase, towels and personal items in the clear inventory bag, and give it to the officer in your housing area for safe storage.
E. Dress Code 1. You must wear your uniform. 2. You must keep your uniform clean. 3. You must not make any changes (cut, write, design, etc.) to your uniform or clothes you buy
from the commissary. 4. You must wear your uniform properly; for example your pants should not be under your
waistline and you cannot tie your shirt around your head. 5. You must wear a uniform shirt and pants when leaving your housing area. 6. You can wear faith-based (religious) prayer shawls and head coverings, with the approval
of the chaplain when observing your religious holiday or involved in a faith-based activity. When not in use, you must, in most cases, keep these items in the Chapel’s storage or other designated area. 7. You must wear tennis shoes or shower slides when you are not in bed. Tennis shoes should only be worn for recreation or work-related activities. Shower slides can be worn when you are not in bed (in the units, to attend court or for any other activities that are not work-related). 8. You will be allowed to wear sweatshirts that you buy from the commissary to court, underneath your uniform, when the temperature is lower than 65 degrees outside. 9. You may be authorized to wear regular clothes to attend your trial. Trial clothing shall be provided during your trial proceeding by your attorney or family and returned to them by the end of each trial day. Under no circumstances will trial clothing be brought to the facility. 10. You cannot wear sweatpants or recreational shorts to court.

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F. Meals All meals served (general population, vegetarian, medical, special management) meet requirements for most faith-based diets and are free of pork, trans-fat, alcohol, and shellfish. If you believe your faith requires a different meal, please contact the chaplain.
You will be served 3 meals a day. Meals are prepared every day from menus that a registered nutritionist or dietitian approves. The menu and time you will receive your meals are posted in your housing area. If you only eat vegetarian meals, fill out an Inmate Request Form and give it to your counselor.
When medically necessary, you may be approved for a medical (therapeutic) diet. If you create a safety or security concern, a “special management meal” may be ordered for you.
If food items that you did not eat are found in your housing area 1 hour after meal service, it will be considered contraband, thrown away, and may result in disciplinary action. Fruit and medically authorized snacks for diabetics and pregnant inmates must be eaten before the next scheduled meal is delivered.
XVII. Bail Bonds You may contact a bail bonding agency to post a bond. A list of agency telephone numbers is posted in the Intake and Release and housing areas. Our staff is not allowed to give you recommendations or information on bail bond agents.
XVIII. Attorneys, Public Defenders and Regional Counsel Our staff is not allowed to give you any legal advice. If you need to know your court date, you can fill out an Inmate Request Form and give it to your counselor.
All inmates are required to attend court proceedings. Inmates cannot refuse to attend court. Attendance is imperative, as missed court dates create a backlog and may delay the criminal justice process. Any inmate who refuses to attend court may be disciplined and/or a “no refusal” court order may be entered against you to ensure you attend court.
You have the right to hire or have an attorney appointed to you by the courts. A private attorney, Public Defender, or Regional Counsel is the best source of information regarding all your legal matters. The Regional Counselor represents defendants whose case conflicts with the Public Defender’s Office.
If you are a pro se inmate, that means you want to represent yourself in court, you will have limited, but reasonable, access to legal materials to help you in filing most legal actions within the jurisdiction of the Florida courts.
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XIX. Legal Research Services You will have reasonable access to legal materials to help you in filing most types of legal actions within the jurisdiction of the Florida courts. An outside vendor provides the legal research services. When you have a legal question, require legal forms, or want legal research materials, you must fill out and return a Legal Information Request Form to your counselor. The vendor will respond to all requests within 3 workdays from the date they received your form. Inmates are limited to a maximum of 1 request with up to 3 items listed on the Legal Information Request Form per month except pro-se inmates.

All inmates granted pro se status by the courts are limited to a maximum of 1 request with up to 3 items listed on the Legal Information Request Form per week. MDCR reserves the right to adjust the amount of requests and items requested by the inmate. If you need a legal document notarized, you can fill out an Inmate Request Form and give it to your counselor.

XX. Programs and Services Each newly admitted inmate must attend orientation. During the orientation, you will be informed of programs and services that are offered at your facility and how you can participate in them, if you are eligible. You must obey the rules and regulations of each program/service. If you violate the rules and regulations, you may not be able to continue participating in the programs/services.

A. Recreation You will have an opportunity to exercise outside a minimum of 3 hours each week. While in the recreation area, you must wear uniform shorts and shirt. Horseplay (rough or loud playing, pranks, etc.) is not allowed. You may not be able to participate in outdoor recreation based on your health condition, weather, security issues, or disciplinary action. You have daily access to indoor activities such as board games, card games, television, etc.

B. Faith-Based Services Faith-based services, study, and counseling will be available. Staff, volunteers and other authorized representatives conduct services on a daily or weekly basis. The schedules are posted in your housing area. If you want to attend service or have a special request about a particular faith or religious matter, you must fill out an Inmate Request Form and give it to your counselor or other MDCR staff.

C. Reentry Program If you want to participate in a program that you qualify for, fill out an Inmate Request Form and give it to a MDCR staff. Availability of programs may change. To find out about current programs that you may participate in, ask your counselor. Programs offered include: 1. General counseling, reentry assistance, drug and alcohol referrals such as Alcoholics
Anonymous and Narcotics Anonymous. Additionally, referrals to other community service agencies are available. Miami-Dade County Public Schools (MDCPS) and community based organizations, companies, businesses, etc. can offer programs that will help you make a successful return to the community;

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2. Adult Basic Education (ABE), English for Speakers of Other Languages (ESOL), and General Educational Development (GED). Programs may be offered for Limited English Proficiency inmates. Americans with Disabilities Act inmates will have the same access to available programs. If you are a juvenile, you must enroll in the Alternative High School or GED program while in jail. Educational programs are offered to adult inmates depending on their security classification and how much space is available;
3. Life skills, self-betterment skills, vocational skills, carpentry, cabinet making, cosmetology, PREA education, yoga, Thinking for a Change, and Children of Inmates. All County inmates who are sentenced to 364 days or less may enroll in vocational programs. Each facility may have different programs.
D. Pre-Trial Release Program Only inmates who are charged with nonviolent bondable offenses and meet certain conditions are eligible for the Pre-Trial Release (PTR) Program. Before your first appearance in court, a PreTrial Services Officer will interview you. The Pre-Trial Services Officer will use the information you give to make a release recommendation to the judge. If you are accepted into the program, you must obey its rules and regulations, including any special conditions set by the judge. If you do not obey all of the conditions, you may be removed from the program and returned to jail.
E. Veterans Justice Outreach (VJO) Program If you are an incarcerated veteran in MDCR, you may be eligible for the Veterans Justice Outreach (VJO) Program. VJO provides incarcerated Veterans with access to Veterans Health Administration (VHA), mental health, substance abuse services, homelessness prevention and other Veterans Administration (VA) services. If you would like to learn more about Support for Incarcerated Veterans in Miami, Florida, call *9020#.
F. Inmate Gain Time “Statutory Gain Time” is a reduction from your County sentence of 364 days or less. This is determined by how many days you are sentenced and the time you have already served. If you are eligible, it will be credited monthly.
MDCR may award you “Incentive Gain Time” to reduce the time of your County sentence for your hard work, and to encourage good behavior and your participation in programs, training, and other positive activities. Incentive Gain Time is not a right, it is based on a recommendation.
MDCR may award you “Meritorious Gain Time” for doing a great deed and/or giving great service that deserves a reduction from your County sentence.
G. Credit Time Served Before your judge sentences you, he/she may award “Credit Time Served” to reduce the amount of time you would have to spend in jail.
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XXI. Inmate Worker Status Sentenced inmates must work. Once cleared by medical staff to work inside or outside of a MDCR facility, staff may grant gain time when you become an inmate worker. If you refuse to work, it may result in disciplinary action.
If you are in a court ordered program or have a medical and/or mental health condition, you may not have to work. If you are not sentenced, you may volunteer to work as an inmate worker after a classification review.
XXII. Inmate Mail For security purposes, MDCR opens and inspects mail that is sent to you, unless it is legal or privileged mail. Legal or privileged mail will be opened and inspected in front of you. When someone sends you mail, it may be returned if the envelope is not properly addressed. Your facility’s contact information is located in the Directory section of this handbook. Please consult the diagram below:

(Return Address) First and Last Name of Sender Address of Sender City, State and Zip Code

(Addressee) The Full Name You Were Booked Under Jail number and Unit or Cell Number for example, MW3A2 Facility Name Address of Facility City, State and Zip Code

A. General Guidelines • Mail that presents a threat to the safety, security, or internal order of a facility may be
rejected, delayed or investigated. • You can buy stamped envelopes from the inmate commissary. If you cannot afford one,
place an order through the inmate commissary for an Indigent Kit, if eligible. • When you send mail, do not seal the envelope because it may have to be inspected. • You may not write to or receive mail from another inmate who is in a MDCR jail or another
agency’s custody without authorization. • If anyone sends you something in the mail that is not authorized, it will be returned to the sender. • If for any reason mail is rejected, you will be told in writing the reason it was returned. • You cannot receive cash, checks, or money orders by mail. If cash is found in your mail, it will
be considered contraband, and it will be placed in the Inmate Welfare Fund – not in your Inmate Financial Account. Checks or money orders will be returned to the person who sent them.

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B. Privileged Mail All mail to and from a federal, state or local government official; embassy; consulate; news media; etc.; may be considered privileged mail. Privileged mail also includes legal mail to and from municipal, county, state, and federal courts; attorneys; judges; legal aid organizations; agency clerks; etc.
When you receive privileged mail, it will be opened and checked for contraband in your presence. The signature and letterhead may be read for verification purposes; any other portion of the mail will not be read.
When you need to send mail, you may give it to the officer in your housing area or the mail clerk. Outgoing privileged mail may be held for 1 business day; excluding weekends and holidays. This allows MDCR to verify that the mail is going to an attorney; federal, state or local government official; judge; court; embassy; or consulate.
C. Personal Correspondence It is encouraged that you keep in contact with family and friends. However, any contraband items that you receive or send in the mail will be confiscated and appropriately handled.
1. Types of Mail You May Receive You may receive magazines, newspapers and paperback books directly from the publisher, distributor, bookstore, or authorized vendor, as long as the U.S. Postal Service delivers them.
2. Types of Mail You May Not Receive You cannot receive hardcover books (even if you subscribed to it, bought it directly from the publisher or purchased it through an authorized vendor). Additionally, you many not receive any of the following: radios, pens/pencils, stamps, personal hygiene items, chewing gum, candy, edible food, liquids, gang-related material, instant-film type photos with backing attached, mail with stickers, buttons, feathers, telephone cards, plastic cards, musical cards, jewelry, perfume, flowers, credit cards, hair pieces, hair extensions, etc.
Other items that you may not receive include bus schedules, directions, maps, personal checks, bank statements, homemade artwork, glue, adhesives, pictures, materials that depict sexual acts, obscenity, or nudity (partial/full). This includes subscriptions to magazines such as Playboy, Playgirl, Hustler, Maxim, Smooth, XXL, etc.
3. Subscriptions If you want to subscribe to a publication, you must fill out an Inmate Request Form and return it to your counselor or the officer in your housing area. If this is not done, the mailroom staff will return the publication to the sender. The subscription must be ordered directly from a publisher, distributor, bookstore, or authorized vendor; delivered by the U.S. Postal Service;
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and labeled with the sender’s information, your name, jail number, cell number, and the name and address of your facility.
XXIII. Inmate Telephone Use You cannot receive incoming calls at MDCR; you may only make outgoing calls. There is a 30-minute limit for telephone calls. Before you reach the 30-minute limit, a 60-second and 10-second courtesy warning will be given. Once you have reached 30 minutes, the call will disconnect. However, time will be extended for inmates using the TTY or video telephone.
You may call the Homeless Trust Hotline, Public Defender’s Office, Office of Regional Counsel, most embassies, and the Rape Crisis Hotline for free.
You may make collect and prepaid calls through Global Tel-Link (GTL), MDCR’s inmate telephone service provider. Your calls will be monitored. Calls to the Rape Crisis Hotline, the Public Defender’s Office, or an attorney whose information is on the DO NOT RECORD list will not be monitored. Your attorney must call the Security and Internal Affairs Bureau to add his/her information to the DO NOT RECORD list.
Using the telephone is a privilege that you may not abuse. Abuse of telephone privileges includes, but is not limited to: • Damaging, destroying, or making changes to telephone equipment; • Making harassing, unwelcoming, threatening, or obscene calls; • Making calls that violate any state or federal law, or telephone company/MDCR rules and
regulations; • Making 3-way calls; or, • Using the telephone for illegal purposes.
If you abuse your telephone privileges, you may not be able to use the telephone. You will be charged with a rule violation and face disciplinary action, if found guilty. Also, criminal charges may be filed against you and anyone who helps you break the law.
Any housing area where fraudulent calls are made will lose telephone privileges and may result in disciplinary action.
XXIV. Family Emergency In case of an emergency such as death in an inmate’s family, a family member or someone close to you may call to notify the Shift Supervisor/Commander and/or Chaplain. After verification of the emergency, MDCR staff will inform you concerning the nature of the emergency as soon as possible.

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XXV. Visitation Visits with your family and friends are encouraged. The visitation schedule is posted in your housing area. Your family and friends should consult with the MDCR website for the schedule and visitation rules they must follow. The MDCR website is www.miamidade.gov/corrections/ visitation-guidelines.asp. They may also call the facility directly to ask about visiting schedules and rules.
A. Master Visitation List During the classification process, you should have completed a Master Visitation List. The names of your possible visitors must be on that list. You may list up to 6 visitors at a time. With the kiosk system located at Metro West and TGK, you may change your visitation list at your own discretion, as long as there are only 6 names on the list. At the Pre-Trial Detention Center, which does not have kiosks, the list can be changed every 30 days. A visitor “PASS” will not be given to anyone who is not on the approved list.
B. General Guidelines 1. You may have a maximum of 2 visits per week, unless you lose your visitation privileges as
a result of disciplinary or administrative action. 2. You may have up to 4 visitors at the same time if they are signed-in together. 3. All visitors must be approved prior to their visit. 4. You may refuse to see any visitor. 5. MDCR does not allow contact visits. The Facility Supervisor is the only one who can autho-
rize such visits, and only under special conditions. 6. MDCR staff may discontinue visitation at any time during a facility lockdown, unit lockdown,
or emergencies. 7. MDCR will not allow someone to visit you if there is a “Stay Away” order in place between
you and that person. 8. Visitors with open warrants will not be allowed in the facility and can be arrested. 9. If your visitor does not follow the rules, the visit will end. 10. Your future visitation privileges may be suspended and may result in disciplinary action
against you if you violate visitation rules.
C. Rules and Regulations for Visitors A visitor who does not comply with these instructions will not be allowed into the secure areas of the facility. 1. Visitors must provide current and valid government issued picture ID, such as a driver’s
license, state ID, military ID, passport, etc. The Shift Supervisor/Commander has the authority to approve the use of other types of identification. 2. Visitors under the age of 18 must come with and stay with a parent or legal guardian, at all times, while on the grounds of, or inside of, a MDCR facility. The parent or legal guardian must present legal documentation to prove custodial responsibility such as a birth certificate, adoption papers, documentation from the courts indicating custodial responsibility,
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etc. If the visitor is legally married to you, he or she must show his/her marriage certificate and a valid ID such as a driver’s license, state identification card, etc. 3. Visitors must comply with MDCR security measures, such as passing through metal detectors, being subject to a frisk search, and having their possessions searched by staff and/ or trained dogs. 4. Visitors with medical or religious claims that they cannot be exposed to metal detector devices must provide medical documentation, if applicable. They must consent to a frisk search. A supervisor will review all medical/religious claims and must be present during the frisk search. 5. Visitors are encouraged not to wear footwear, garments including underwire bras, jewelry, hairpins, etc., or other items that may contain metal because they may cause the metal detector to give an alert signal. All metal items must be removed prior to walking through the metal detector. If the metal detector gives an alert signal, the visitor will be frisk searched. 6. Visitors must not be, or appear to be, under the influence of alcohol or drugs. 7. Visitors must not pose a clear and present danger to the security of the facility. 8. Visitors must dress properly, wear covered shoes (no sandals or flip-flops), and remain fully dressed. 9. Visitors must check-in at the visitor entrance. 10. Visitors and their belongings may be searched. Failure to submit to a search will result in the visit being denied. 11. Visitors must not eat, chew gum, or drink inside the facility. 12. Visitors cannot carry any metal object, camera, laptop, portable computer, firearm, explosives, or similar object inside the facility. 13. Visitors cannot bring a briefcase, any bag (purse, diaper bags, etc.) pager, or cell phone inside the facility. 14. Visitors cannot bring alcohol, drugs or tobacco products (cigarettes, cigar, lighter, matches, etc.) inside the facility. 15. Visitors cannot have physical contact with inmates.
D. Things You CANNOT Do You will not be able to meet your visitors unless you are wearing your inmate uniform and shower slides. Also: 1. You cannot accept anything from, or give anything to, your visitor; 2. You or your visitor cannot talk loud, shout, or behave improperly during the visit; 3. You or your visitor cannot leave the visiting area or your visit will end.
Bringing contraband into a MDCR facility or on facility grounds is a felony in the third degree punishable by a term of up to 5 years in prison and/or a fine that is not more than $5,000.
E. Attorney Visits Authorized legal representatives may visit 24 hours a day, 7 days a week, except under certain circumstances, such as when the MDCR facility is doing headcount, facility lockdown or

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during emergency situations. A legal representative’s visit is a professional visit and may be a contact or non-contact visit. Your attorney can call the Shift Commander’s desk to get more information. Your facility’s contact number is located in the Directory section of this handbook.
XXVI. Inmate Financial Accounts While you are incarcerated, you may have to pay for fees from your Inmate Financial Account.
A. Deposits Deposits into your Inmate Financial Account may be made by family and friends online, by telephone, or by using one of the TouchPay kiosk machines (24 hours a day, 7 days a week) located in the lobby of the facility. Deposits can also be initiated on the TouchPay website from a computer or smart phone and then paid in cash at a walk-in retail store. The person making the deposit must have the name you are booked under, MDCR number (Facility #233101), and jail number. 1. TouchPay
TouchPay is available online or by telephone with a credit card or debit card. A convenience fee for these transactions will apply. 2. TouchPay Lobby Kiosks TouchPay machines are located at the Pre-Trial Detention Center, Metro West Detention Center and Turner Guilford Knight Correctional Center.
B. Indigent Inmates All inmates will be provided with basic hygiene items such as soap and feminine products upon request, regardless of indigent status. You are considered indigent if you do not have more than $2.00 in your Inmate Financial Account, at any time for 30 straight days. If you are considered indigent, you must fill out a Commissary Menu Form every week to receive a free Indigent Kit on the next commissary delivery day. This may include: toothpaste, deodorant, paper, a stamped envelope, writing instrument, and other items, depending on the type of Indigent Kit ordered.
C. One-Time Processing Fee You are required to pay a $25 processing fee each time you are booked into MDCR’s custody. The fee is not refundable. The fee will be deducted from your Inmate Financial Account on the day you are booked.
D. Daily Inmate Subsistence Fee You are required to pay a $2.00 daily subsistence fee to offset the cost of your incarceration. 1. If you have money in your Inmate Financial Account at the time you were booked, any
uncollected fees you owe MDCR from previous times in jail will be deducted prior to MDCR collecting the daily subsistence fee. 2. If you do not have enough money to pay for your fees, whenever you get an Inmate Financial Account deposit, after initial intake, 50% of such deposit will be deducted for uncollected fees. If you cannot pay for your fees upon release, your account shall be considered “delin-
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quent” after ninety (90) days of your release date. A civil restitution lien may be placed against your financial account or personal property, for a period of 3 years. Court-ordered liens against your money for child support, restitution, court fees, etc., will be collected before MDCR fees. The inmate grievance process may be used to present reasons against the lien only while in custody. 3. If the disposition of your case is “Acquittal on All Charges,” “Nolle Pros,” or “All Charges Dropped,” you may request to have the money you paid refunded. To get a refund, you must give a certified copy of the Clerk of Courts’ final case disposition document to the Property Room (Release Window). After the request is reviewed and verified, a check will be mailed to you at the last address on file, unless you provided a new address. The check will be mailed no later than 90 days from the date you submitted the final court disposition.
E. Exempt Inmates You will not have to pay subsistence fees if you are: 1. Sentenced to the Boot Camp Program; 2. Assigned as an inmate worker; 3. Ordered and placed into the Monitored Release Program; 4. Being held on an Immigration and Custom Enforcement (ICE) warrant, with no local charges; or, 5. Being held for the U.S. Marshal, regardless of having local charges.
F. Inmate Commissary You may buy food, stamped envelopes, over-the-counter medicines, and other items from the inmate commissary. Commissary orders are delivered once a week. A list of prices is posted in your housing area.
You may not exchange, gamble or negotiate with your commissary items. Commissary is a privilege that will be suspended, limited or canceled if you are found guilty of violating MDCR rules.
You cannot return items that you buy from the commissary. Several items on the commissary order list may not be available in every facility. For example, commissary items that need hot water to prepare are only available in facilities that have direct staff supervision and have enough electrical equipment/units for hot water.
If you want to check your commissary balance, fill out an Inmate Request Form and give it to your counselor. If you want to order from the commissary, you have to fill out a Commissary Menu Form and return it to MDCR staff. You may only purchase items up to the amount you have available in your account, not to exceed $150.00 weekly. If you are in a safety cell, the limit is $50.00 weekly. In some facilities, you may order your commissary items directly from a kiosk.
It is important that you keep copies of all your commissary invoices. Before you sign your commissary receipt, check for errors or missing items. If there is a problem with your order, tell the delivery person immediately. They will:

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• Verify the information; • Document the problem on your invoice; and, • Take necessary action.
G. Account Discrepancy If there is a problem with your Inmate Financial Account, you should fill out an Inmate Financial Inquiry Form and give it to your counselor. You may request a receipt from your counselor that shows all transactions for your Inmate Financial Account. If you find an error on the report, speak to your counselor.
XXVII. Inmate Money Release Authorization Within the first 30 days of being booked, you may release your money to anyone you choose, other than another in-custody inmate. You may make one Money Release Authorization (MRA) request for any money that was taken from you during the initial intake after your commissary orders, medical fees, etc., have been paid: • You must request a MRA form from your counselor and fill it out; • You must sign the form in front of MDCR staff; • MRA requests are subject to administrative review and approval. Additional information may
be requested for review; • Any exception may be authorized by the Budget and Finance Bureau Commander or
assigned staff.
XXVIII. Suicide Prevention When you are in jail, you may feel anxious, sad, depressed and/or desperate. If not treated, these feelings may get worse and put you at risk of hurting yourself. Your well-being matters to us, so please tell a staff member immediately if you: • Have tried to commit suicide in the past; • Have received bad news from home; • Have been sentenced by a court and are feeling overwhelmed; • Have thoughts about hurting yourself and have an idea of how you would do it; • Gave up on yourself and feel hopeless about your future; • Lost interest in the things that used to be fun for you; • Feel worthless or feel like a failure; • Feel sad and depressed. Depression and/or thoughts of suicide are nothing to be ashamed
of. You will not be punished or retaliated against because of the way that you feel; • Feel as though there is no way out of your situation; • Have given away things that once were important to you; • Feel guilty and ashamed; • Worry about your problems to the point that you cannot do anything or think about anything
else; or, • Cannot stop crying and are not interested in life anymore.
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If you or someone you know shows any of these signs, tell a counselor, officer, medical staff, mental health staff or other MDCR staff immediately.
XXIX. Inmate Disciplinary Process You must obey all rules and regulations, and respect all staff, volunteers, contractors, visitors, and other inmates. Criminal acts within our facilities will not be tolerated. If you violate MDCR rules, you will be subject to MDCR disciplinary sanctions. These sanctions include losing your privileges up to being criminally prosecuted to the fullest extent of the law, depending on the violation. Privileges are benefits that are available to you for obeying rules and regulations. Privileges include visitation (other than attorneys and clergy), telephone use, commissary, and educational programs.
MDCR has an informal and formal discipline process: A. Informal Discipline Informal discipline will be used to correct non-compliant behavior, and for minor rule (Category IV) violations. Minor rule violations may result in a suspension of your privileges and/or confinement to your housing area for up to 2 hours. Informal discipline will not be used against you more than 2 times in a 7-day period. When an officer uses informal discipline against you, you will get food, clothes, and have visitation. Also, the discipline must finish at the end of the shift it started.
B. Formal Discipline If you violate a rule or regulation that may require discipline, you will be given an Inmate Disciplinary Report. You will have the right to a disciplinary hearing. A Disciplinary Hearing Officer will handle minor rule (Category IV) violations. A Disciplinary Committee will handle major rule (Categories I through III) violations. Staff will be available to make sure you understand the charges during the hearing. You will be allowed to call witnesses as long as safety and security will not be jeopardized.
The Disciplinary Hearing Officer or Disciplinary Committee will make sure your hearing is processed within 7 workdays of the incident, but no more than 10 workdays of the incident. If you need assistance because of a disability or language barrier, let your counselor know.
The Disciplinary Hearing Officer or Disciplinary Committee will: 1. Explain the hearing procedure and possible sanctions to you; 2. Read the charges to you; and, 3. Find out if you understand the charges, and if you need help from staff during the hearing. You will have to enter a plea of “Guilty” or “Not Guilty.” • If you plead “Guilty,” you will be notified of the sanctions. • If you plead “Not Guilty,” you can provide information for your defense, testify on your behalf,
and/or call witnesses. The Disciplinary Hearing Officer or Disciplinary Committee will make

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MIAMI–DADE COUNTY
Corrections and Rehabilitation Department
a determination. You will be notified of the decision and the reason for the “Guilty” or “Not Guilty” finding, in writing.
C. Appeal Process To appeal a decision rendered by the Disciplinary Committee, you must fill out an Inmate Disciplinary Appeal Form and give it to staff within two workdays from the date that you received the hearing decision. The form will be forwarded to the Inmate Disciplinary Coordinator who will provide a response to the appeal within 7 work days of receiving it. The decision of the Inmate Disciplinary Committee is final and there shall be no further appeal.
D. Criminal Prosecution If you commit a crime in any MDCR facility (e.g. assault, battery, fighting, threats, indecent exposure, tampering with or blocking surveillance devices, etc.), Miami-Dade Police Department will investigate and submit the case to the State Attorney’s Office for criminal prosecution.
XXX. Violations and Sanctions Below is a list of violations and sanctions. Category I is the most serious and Category IV is the least serious.
A. Category I 1.1 Battery on a staff member; 1.2 Aggravated battery; 1.3 Attempting sexual battery or sexual battery; 1.4 Setting a fire; 1.5 Possessing or introducing an explosive or ammunition into a detention facility; 1.6 Possessing or introducing a gun, weapon, sharpened instrument, knife, telephone, or
other unauthorized tool; 1.7 Participating in a riot; 1.8 Throwing, tossing or expelling bodily, hazardous or chemical fluids/material.
If you are found guilty of any Category I violation, you may face any combination of these disciplinary sanctions: • Criminal prosecution; • Disciplinary confinement of up to 60 days for all violations rising out of 1 incident; • Recommended loss of up to 60 days of gain time earned or earned but not credited as of the
hearing date; • Loss of 1 or more privileges for up to 30 days; • Loss of gain time; and/or, • Pay restitution.
26 I N M A T E H A N D B O O K

cv-21457-KMW Document 66-2 Entered on FLSD Docket 04/21/2020 Pa
MIAMI–DADE COUNTY
Corrections and Rehabilitation Department
B. Category II
2.1 Battery on a person other than MDCR staff; 2.2 Extorting, blackmailing, demanding or receiving money or anything of value in return for
protection against others to avoid bodily harm or under threat of informing; 2.3 Possessing, introducing, or trafficking of drug paraphernalia or unauthorized drugs; 2.4 Inciting a riot, work strike, or mutinous disturbance; 2.5 Conveying any inflammatory or mutinous communication by voice, writing, sign, symbol,
or gesture; 2.6 Possession of tobacco products, smoking materials or smoking any substance; 2.7 Bribery or attempted bribery; 2.8 Fighting; 2.9 Wearing a disguise or mask; 2.10 Tampering with or blocking any locking device; 2.11 Counterfeiting, forging or reproducing unauthorized documents, articles of identification,
money, security, or official papers; 2.12 Flagrant failure to follow safety or sanitation regulations; 2.13 Exhibiting conduct that disrupts or interferes with the security or orderly running of the
detention facility; 2.14 Destroying, altering, damaging or defacing government property, to include graffiti or
damaging the property of another person; 2.15 Possessing any staff clothing; 2.16 Entering another inmate’s room, taking things from an inmate’s clear inventory bag or
personal property; 2.17 Failing to stand for headcount or interfering with headcount; 2.18 Being in an unauthorized area; 2.19 Threatening a MDCR staff, contractor, visitor, volunteer, etc., with bodily harm or any offense
against another person or property (this includes making sexual proposals or threats); 2.20 Subjecting MDCR staff, contractors, visitors, or volunteers to obscene acts, such as
indecent exposure, lewd exhibitionism, and/or masturbation; 2.21 Aggravated refusal to follow written or verbal order from staff; 2.22 Unauthorized Program Leave – Monitored Release Program, Boot Camp/Work Release
House Arrest Program, or inmate not at a job/interview/assignment or appointment; 2.23 Using unauthorized drugs, as evidenced by positive results from urinalysis test or observ-
able behavior; 2.24 Refusing to submit to substance abuse testing; 2.25 Possessing gang-related documents; 2.26 Recruiting another inmate to a gang-related and/or disruptive group; 2.27 Use of alcohol, as evidenced by positive results from urinalysis test or observable behavior; 2.28 Attempting to commit or assist in any Category I or Category II violations; 2.29 Repeating Category III violations.

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MIAMI–DADE COUNTY
Corrections and Rehabilitation Department
If you are found guilty of any Category II violation, you may face any combination of these disciplinary sanctions: • Criminal prosecution; • Disciplinary confinement of up to 30 days; • Confinement to housing area for a maximum of 14 days; • Recommended loss of up to 30 days of gain time earned or earned but not credited as of the
date of the hearing; • Loss of 1 or more privileges for up to 30 days; • Loss of gain time; and/or, • Pay restitution.
C. Category III 3.1 Assaulting or threatening another inmate with bodily harm or any offense against their
property (this includes making sexual proposals or threats); 3.2 Engaging in sexual acts not involving threat or force; 3.3 Misusing authorized medication; 3.4 Possessing money, currency, or other unauthorized negotiable items such as checks,
money orders, debit cards, or credit cards; 3.5 Loaning of property or anything of value for profit or increased return; 3.6 Stealing (theft); 3.7 Possessing stolen property or possession of someone else’s property; 3.8 Possessing any contraband (anything not authorized for retention or receipt by the inmate
and not issued to him through regular detention facility channels); 3.9 Possessing unauthorized clothing (not provided by MDCR or purchased from the inmate
commissary); 3.10 Destroying or altering clothing issued by the detention facility; 3.11 Possessing or manufacturing unauthorized beverages; 3.12 Adulterating any food or drink; 3.13 Refusing to work; 3.14 Having an unexcused absence from work or any other assignment; 3.15 Failing to follow written or verbal order from staff; 3.16 Insolence (disrespect towards MDCR staff); 3.17 Lying or providing a false statement to MDCR staff; 3.18 Violating visitation rules and regulations; 3.19 Participating in an unauthorized meeting or gathering; 3.20 Using any equipment or machinery that is not specifically authorized; 3.21 Using equipment or machinery contrary to instructions or posted safety standards; 3.22 Giving or accepting money or anything of value from another inmate, a member of his/
her family or his/her friend; 3.23 Violating mail, telephone, property, or commissary regulations;
28 I N M A T E H A N D B O O K

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MIAMI–DADE COUNTY
Corrections and Rehabilitation Department

3.24 Disrupting religious, medical or food services or any other detention facility activity/program; 3.25 Failing to perform work as instructed by MDCR staff; 3.26 Tattooing or self-mutilating; 3.27 Misusing Inmate Financial Account; 3.28 Failing to follow Monitored Release Program Boot Camp/Work Release rules and regula-
tion, and/or court mandated conditions; 3.29 Violating recreations rules and regulations; 3.30 Making unnecessary noise such as arguing, shouting, whistling, rattling/pounding on
doors or windows; 3.31 Attempting to commit or assist in any Category III violations; 3.32 Repeating Category IV violations.
If you are found guilty of any Category III violation, you may face any combination of these disciplinary sanctions: • Criminal prosecution; • Disciplinary confinement of up to 20 days; • Confinement to housing area for a maximum of 7 days; • Recommended loss of up to 20 days of gain time earned, but not credited, as of the date of
the hearing; • Loss of 1 or more privileges for up to 20 days; • Loss of gain time; and/or, • Pay restitution.
D. Category IV 4.1 Misusing or losing County/MDCR property; 4.2 Wasting food; 4.3 Being unsanitary or untidy, failing to keep yourself and your housing area in accordance
with established standards; 4.4 Using abusive/obscene language or gestures; 4.5 Malingering, feigning (faking) an illness; 4.6 Failing to follow safety or sanitation regulations; 4.7 Gambling or preparing/conducting a gambling pool; 4.8 Making unauthorized contact with the public; 4.9 Participating in disorderly conduct; 4.10 Loud talking or unnecessary noise after lockdown; 4.11 Horseplaying, teasing or verbally harassing another inmate.
If you are found guilty of any Category IV violation, you may face any combination of these disciplinary sanctions: • Loss of 1 or more privileges for up to 7 days;

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MIAMI–DADE COUNTY
Corrections and Rehabilitation Department
• Confinement to housing area for a maximum of 3 days; and/or, • Pay restitution.
XXXI. Confinement When you are in confinement, you will be separated from the general population. You may be housed in a single cell if your presence may become a serious threat to staff, other inmates, yourself, property, or the security and/or daily operations of a MDCR facility. You may be placed in confinement for administrative or disciplinary reasons.
While in administrative confinement, several visual checks and mental health evaluations will be conducted. You will be provided with similar privileges as inmates in general population, unless security or safety considerations dictate otherwise. Inmates who are in mental distress are treated by Mental Health Treatment Staff (MHTS) and cannot be housed in a confinement cell.
A. Administrative You can fill out and submit to your counselor an Inmate Classification Appeal Form to request that you be released from administrative confinement. You may be placed in administrative confinement: 1. If you requested “protective custody” on an Inmate Request Form to prevent being victim-
ized by other inmates; 2. If you are a high profile inmate; 3. If court ordered; 4. Depending on your criminal charges or gender, which may expose you to possible harm if
housed in general population; 5. Depending on your assessment status as a possible PREA victim or abuser; 6. To prevent possible victimization of others; 7. While you are waiting for an investigation to finish; 8. Based on the recommendation of the Intake and Release Bureau or Classification Unit; or, 9. For facility security reasons.
B. Disciplinary When you are found guilty of a major rule violation, you may be placed in disciplinary confinement. Disciplinary confinement may be imposed when other methods are unsuccessful in correcting non-complaint behavior.
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MIAMI–DADE COUNTY
Corrections and Rehabilitation Department

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Corrections and Rehabilitation Department
32 I N M A T E H A N D B O O K

cv-21457-KMW Document 66-2 Entered on FLSD Docket 04/21/2020 Pa

cv-21457-KMW Document 66-2 Entered on FLSD Docket 04/21/2020 Pa
Miami-Dade County

Carlos A. Gimenez
Mayor
Board of County Commissioners

Jean Monestime
Chairman
Esteban Bovo, Jr.
Vice Chairman

Barbara J. Jordan
District 1

Daniella Levine Cava
District 8

Jean Monestime
District 2

Dennis C. Moss
District 9

Audrey M. Edmonson Senator Javier D. Souto

District 3

District 10

Sally A. Heyman
District 4

Juan C. Zapata
District 11

Bruno A. Barreiro
District 5

José “Pepe” Díaz
District 12

Rebeca Sosa
District 6

Esteban Bovo, Jr.
District 13

Xavier L. Suarez
District 7

Harvey Ruvin
Clerk of Courts

Pedro J. Garcia
Property Appraiser

Abigail Price-Williams
County Attorney

Daniel Junior
Interim Director Corrections and Rehabilitation

Miami-Dade County provides equal access and equal opportunity in employment­and services and does not discriminate on the basis of disability­.
It is the policy of Miami-Dade County to comply with all of the requirements of the Americans with Disabilities Act.

134.01-211 10/16

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Case 1:20-cv-21457-KMW Document 66-4 Entered on FLSD Docket 04/21/2020 Page 1 of 21

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EXHIBIT A

Case 1:20-cv-21457-KMW Document 66-4 Entered on FLSD Docket 04/21/2020 Page 3 of 21
Miami-Dade Corrections and Rehabilitation Department
INMATE GRIEVANCE REPORT
FROM: 1/1/2020 TO: 4/10/2020

CURRENT CONTROL

FACILITY

NUMBER

MWDC MW20-01001

MW20-01002

MW20-01004

MW20-01005

MW20-01006

MW20-01007

MW20-01008

MW20-01009

MW20-01010

MW20-01011

MW20-01012

MW20-01013

MW20-01014

MW20-01015

MW20-01016

MW20-01017

CIN
727383 927278 1112656 1108368 809305 1222462 714106 364091 1211743 1085189 324530 877971 1151390 1175623 574796 1034030

1 of 19

INMATE NAME
NEAL, MIKE ROBERTS, AUDREY BARNES, SEAN HURT, CHRISTINA MARINA, PAULINE MCBRIDE, ANTHONY STLOUIS, CARLINTS CARBALLEIRA, CARLOS ANTOINE, ARLENE GONZALEZ, REINEL MADRIGAL, GUSTAVO ALFONSO, ERNESTO COLON, CHRISTIAN WALKER, KEVIN MARTINEZ, WILLIAM ZAPATA, MORRIS

CURR CELL
M142 M145 M3B1 M2D4 M2D4 M3D1 M3D1 M3D4 M2D1 M3B1 M3B1 M3A2 M3A2 M3A2 M3A2 M3C3

SUBST

GRIEV TYPE

GRIEV SUBTYPE

EMRG

IA

Yes

Facility

Operations

Yes

Facility

Operations

No Staff Complaints

Other

Pen

Food Services

Pen

Food Services

No Personal Property

Yes Personal Property

Yes

Dental Care Request for

Services

No

Facility

Operations

Yes

Dental Care Request for Immediate

Services

health issues

No

Facility

Operations

No

Recreation

No

Recreation

No

Recreation

No

Recreation

Yes Personal Property

APPL
Yes

GRIEV DATE
1/2/2020

No 1/1/2020

No 1/4/2020

No 1/2/2020

No 1/2/2020

No 1/7/2020

No 1/8/2020

No 1/6/2020

No 1/8/2020

No 1/6/2020

No 1/4/2020

No 1/9/2020

No 1/9/2020

No 1/9/2020

No 1/9/2020

No 1/8/2020

4/10/2020 11:13:14 AM

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Miami-Dade Corrections and Rehabilitation Department
INMATE GRIEVANCE REPORT
FROM: 1/1/2020 TO: 4/10/2020

CURRENT CONTROL

FACILITY

NUMBER

MW20-01018

MW20-01035

MW20-01036

MW20-01037

MW20-01038

MW20-01039

MW20-01040

MW20-01041

MW20-01042

MW20-01043

MW20-01044

MW20-01046

MW20-01047

MW20-01048

MW20-01049

MW20-01050

CIN
1086824 727383 1215611 972954 972954 926038 708754 859371 1162521 926038 926038 865798 1222290 1218708 1198132 499307

2 of 19

INMATE NAME
MALDONADO, JOSEPH NEAL, MIKE LEVY, GEORGE RAGAN,
ANTHAWN RAGAN,
ANTHAWN BRALEY, AMANDA DEJESUS, ANGEL DELATORRE, RODRIGO KIRKCONNELL,
DAWN BRALEY, AMANDA BRALEY, AMANDA MOJICA, CARLOS DAVIS, MICHAEL JAMES, MICHELLE KURZYM, JEFFREY WILLIAMS, CLARENCE

CURR CELL
M2B2 M145 M3B4 M129 M129 M2D3 M3B4 M3B4 M2D3 M2D3 M2D3 M3B1 M3C4 M2D3 M3D4 M2B3

SUBST

GRIEV TYPE

GRIEV SUBTYPE

EMRG

IA

No Personal Property

No

Inmate Finance

No

Medical Care Medical Illness Immediate

health issues

No

Medical Care Medical Illness Immediate

health issues

No

Medical Care

Other

No

Medical Care Medication

Yes Staff Complaints

Other

Yes

Maintenance

No

Medical Care Medication

Yes

Commissary

Yes Sanitation/Cleanli ness
No Staff Complaints

Other

No

Medical Care Medical Diet

No

Medical Care Medication

No

Medical Care Medication

No Sanitation/Cleanli ness

APPL
No

GRIEV DATE
1/1/2020

No 1/13/2020

No 1/10/2020

No 1/15/2020

No 1/8/2020

No 1/13/2020

No 1/13/2020

No 1/15/2020

No 1/13/2020

No 1/13/2020

No 1/13/2020

No 1/8/2020

No 1/15/2020

No 1/15/2020

No 1/14/2020

No 1/17/2020

4/10/2020 11:13:14 AM

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Miami-Dade Corrections and Rehabilitation Department
INMATE GRIEVANCE REPORT
FROM: 1/1/2020 TO: 4/10/2020

CURRENT CONTROL

FACILITY

NUMBER

MW20-01051

MW20-01052

MW20-01053

MW20-01054

MW20-01055

MW20-01056

MW20-01057

MW20-01058

MW20-01059

MW20-01060

MW20-01061

MW20-01062

MW20-01063

MW20-01065

MW20-01066

CIN
198221 996644 1178657 434914 1112656 727383 391498 391498 414614 1214345 1160039 391498 508882

INMATE NAME
HOLLINGSWORTH, LEO
ZAMOR, VLADIMIR
JONES, ALKIRA LANIER,
GUS BARNES,
SEAN NEAL, MIKE THOMAS, RANDY THOMAS, RANDY RAMOS, ORLANDO PEREZ, DOMINICK CALERO, JOSE THOMAS, RANDY WIMES, MICHAEL

CURR CELL
M3C2 M3C4 M2D2 M127 M3B1 M145 M135 M135 M3A1 M3A4 M3C4 M135 M125

391498

THOMAS, RANDY

M135

1069131

JONES, FRANKEYSHA

M110

SUBST
Yes

GRIEV TYPE

GRIEV SUBTYPE

EMRG

IA

Food Services

Food spoilage

No Personal Property

No Personal Property

No

Facility

Operations

Yes

Maintenance

No Staff Complaints

Other

No Staff Complaints

Other

Pen Staff Complaints

Other

No

Medical Care

Sick Call

Immediate

health issues

Yes

Medical Care

Special

Passes/Reque

No

Medical Care

Spestcial

Immediate

Passes/Reque health issues

No Staff misconduct

st

Imminent safety

issues

Yes

Medical Care Complaints

Against

Medical Staff

Pen

Medical Care Complaints

Against

Medical Staff

No Classification/Co

nfinement

APPL
No

GRIEV DATE
1/17/2020

No 1/17/2020

No 1/15/2020

No 1/9/2020

No 1/22/2020

Yes 1/17/2020

Yes 1/15/2020

No 1/15/2020

No 1/23/2020

No 1/23/2020

No 1/23/2020

Yes 1/15/2020

No 1/22/2020

No 1/15/2020

No 1/15/2020

3 of 19

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Miami-Dade Corrections and Rehabilitation Department
INMATE GRIEVANCE REPORT
FROM: 1/1/2020 TO: 4/10/2020

CURRENT CONTROL

FACILITY

NUMBER

MW20-01067

MW20-01068

MW20-01069

MW20-01070

MW20-01071

MW20-01072

MW20-01073

MW20-01074

MW20-01075

MW20-01076

MW20-01077

MW20-01078

MW20-01079

MW20-01080

MW20-01081

MW20-01082

CIN
1085995 1000892 604451 391498 1206965 1100263 1222065 364091 1116525 1116525 1211743 1218708 760038 1075884 1162521 1060008

INMATE NAME
FULTON, JAMEISHA BENDROSS, DENICIA
POLITE, JUSTIN THOMAS, RANDY CORRAL, RAINEY FINCH, ALEXIS SALDANA,
LUZ CARBALLEIRA,
CARLOS LOPEZ DE QUERALTA, LAOLFPOEZNSDOE QUERALTA, ALNFTOONINSEO, ARLENE
JAMES, MICHELLE JOSEPH,
JERRY HERNANDEZ,
MIGUEL KIRKCONNELL,
DAWN ORDONESMARTINEZ,
LAZARO

CURR CELL
M111 M105 M2B3 M135 M2D3 M2D1 M2D1 M3D4 M3B1 M3B1 M2D1 M2D3 M3D1 M3D1 M2D3 M3B3

SUBST

GRIEV TYPE

GRIEV SUBTYPE

EMRG

IA

No Classification/Co nfinement
No Classification/Co nfinement
No Personal Property

No Staff Complaints

Other

No Staff Complaints

Other

No Staff Complaints

Other

No Staff Complaints

Other

Yes

Facility

Operations

No

Medical Care Medical Illness Immediate

health issues

Yes

Medical Care Medication

No

Medical Care

Sick Call

No

Medical Care

Sick Call

Immediate

health issues

No Staff misconduct

Imminent safety

issues

No Staff Complaints

Other

Yes

Program

Assignment

No

Dental Care Request for Immediate

Services

health issues

APPL
No

GRIEV DATE
1/15/2020

No 1/15/2020

No 1/25/2020

Yes 1/15/2020

No 1/20/2020

No 1/18/2020

No 1/17/2020

No 1/28/2020

No 1/24/2020

No 1/24/2020

No 1/22/2020

No 1/22/2020

No 1/23/2020

No 1/23/2020

No 1/17/2020

No 1/25/2020

4 of 19

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Miami-Dade Corrections and Rehabilitation Department
INMATE GRIEVANCE REPORT
FROM: 1/1/2020 TO: 4/10/2020

CURRENT CONTROL

FACILITY

NUMBER

MW20-01083

CIN
508882

MW20-01084 MW20-01085 MW20-01021 MW20-01022 MW20-01024 MW20-01025 MW20-01026 MW20-01027 MW20-01028 MW20-01029 MW20-01030 MW20-01031 MW20-01032 MW20-01087

756063 1131853 668923 1189021 1217798 1182672 807529 1222290 613156 727383 1108368 727383 727383 1216968

INMATE NAME
WIMES, MICHAEL
BURCH, WADSHUN TOLBERT, RICHARD DIAZJIMENEZ, ORLANDO MARQUEZ, MAIKLER MARTINEZ, BRANDON
PEREZ, LUIS
VASALLO, LAZARO DAVIS, MICHAEL FLORENCE, LADONNA
NEAL, MIKE HURT, CHRISTINA NEAL, MIKE NEAL, MIKE DAWSON, ASHLEY

CURR CELL
M125
M2C3 M2A2 M2C2 M2C2 M2C2 M2C2 M2B4 M3C4 M110 M142 M2D4 M145 M145 M2D4

SUBST

GRIEV TYPE

GRIEV SUBTYPE

EMRG

IA

No

Medical Care Complaints

Against

Medical Staff

No

Medical Care

Sick Call

Immediate

health issues

Pen Transfer/Moveme

nts

Yes

Maintenance

Yes

Maintenance

Yes

Maintenance

Yes

Maintenance

No

Medical Care Medication

Yes

Medical Care Chest Pain

Immediate

health issues

Pen Staff Complaints

Other

No

Commissary

Yes

Food Services

No Staff Complaints

Other

No Staff Complaints

Other

No

Visitation

APPL
Yes

GRIEV DATE
1/28/2020

No 1/31/2020 No 1/28/2020 No 1/7/2020 No 1/7/2020 No 1/7/2020 No 1/7/2020 No 1/2/2020 No 1/9/2020 No 1/9/2020 Yes 1/3/2020 No 1/9/2020 No 1/10/2020 No 1/10/2020 Yes 1/29/2020

5 of 19

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Case 1:20-cv-21457-KMW Document 66-4 Entered on FLSD Docket 04/21/2020 Page 8 of 21
Miami-Dade Corrections and Rehabilitation Department
INMATE GRIEVANCE REPORT
FROM: 1/1/2020 TO: 4/10/2020

CURRENT CONTROL

FACILITY

NUMBER

MW20-02001

MW20-02002

MW20-02003

CIN
365688 1172271 1043625

MW20-02004 MW20-02005

1043625 1043625

MW20-02006 MW20-02007 MW20-02008 MW20-02010 MW20-02011 MW20-02012 MW20-02013 MW20-02014 MW20-02015 MW20-02016

409880 434914 434914 215972 215972 384372 745629 1190782 729890 1200674

6 of 19

INMATE NAME
MOORE, JOE
PEREZ, ASHLEY
VAL, DANIEL
VAL, DANIEL
VAL, DANIEL
BORN, WILLIAM LANIER,
GUS LANIER,
GUS RODRIGUEZ,
OMAR RODRIGUEZ,
OMAR JOHNSON,
JAMES BENN, ERIC BAILEY, JABARI SIERRA, ALBERTO CORRALESMOREJON, YAIDEL

CURR CELL
M3A4 M2D1 M142
M142 M142
M1D3 M148 M148 M2C1 M2C1 M1D2 M2B2 M2B3 M3B1 M3A4

SUBST

GRIEV TYPE

GRIEV SUBTYPE

EMRG

IA

Yes

Maintenance

No

Dental Care Delay in Care

No

Medical Care Medication -

Renewal/Expir

ed

No Staff misconduct

Imminent safety

issues

No

PREA

PREA

Sexual

Staff/Inmate abuse\harrass

ment

No

Food Services

Pen

Legal

No Staff Complaints

Other

Pen Staff Complaints

Other

Pen Staff Complaints

Other

No

Food Services

Yes Sanitation/Cleanli ness
Yes Personal Property

No Staff Complaints

Other

No Staff Complaints

Other

APPL
No

GRIEV DATE
2/4/2020

No 2/3/2020

No 1/29/2020

No 1/29/2020 No 1/29/2020

No 2/2/2020 No 2/5/2020 No 2/4/2020 No 2/5/2020 No 2/5/2020 No 1/29/2020 No 2/10/2020 No 2/10/2020 No 2/6/2020 No 2/11/2020

4/10/2020 11:13:14 AM

Case 1:20-cv-21457-KMW Document 66-4 Entered on FLSD Docket 04/21/2020 Page 9 of 21
Miami-Dade Corrections and Rehabilitation Department
INMATE GRIEVANCE REPORT
FROM: 1/1/2020 TO: 4/10/2020

CURRENT CONTROL

FACILITY

NUMBER

MW20-02017

MW20-02018

MW20-02019

MW20-02020

MW20-02021

MW20-02022

MW20-02023

MW20-02024 MW20-02025 MW20-02026 MW20-02027 MW20-02028 MW20-02029

MW20-02030 MW20-02031

CIN
1035412 1048172 898559 1223685 1223685 1223685 703602

INMATE NAME
VALDES, YOANKLE REYES-CABRERA, ALNALDO RIBEIRO, MICHAEL WELCH,
MARK WELCH,
MARK WELCH,
MARK ECHEMENDIA,
RAFAEL

CURR CELL
M3A4
M3A4
M3A4
M3A4
M3A4
M3A4
M3A2

1041942 1133955 920341 1201989 920341 727383

JOHNEKINS, MYKECE FONDIN, ROXANA
PEREZ-GONZALEZ, AMAURY
COSTASOSA, LUIS
PEREZ-GONZALEZ, AMAURY NEAL, MIKE

M1D2 M2D4 M3A2 M3A1 M3A2 M130

409880 727383

BORN, WILLIAM
NEAL, MIKE

M1D3 M130

SUBST

GRIEV TYPE

GRIEV SUBTYPE

EMRG

IA

No Staff Complaints

Other

No Staff Complaints

Other

Pen Staff Complaints

Other

No Staff Complaints

Other

No Sanitation/Cleanli

ness

Pen

Food Services

No

PREA

PREA

Sexual

Staff/Inmate abuse\harrass

ment

No Staff Complaints

Other

No

Medical Care

Sick Call

No

Dental Care Request for Immediate

Services

health issues

No

Medical Care

Special

Passes/Reque

No

Medical Care Medicsatl Diet

No

Mental Health Complaint

Care

Against Mental

Health Staff

Yes

Dental Care Request for Immediate

Services

health issues

Pen Classification/Co

nfinement

APPL
No

GRIEV DATE
2/11/2020

No 2/11/2020

No 2/11/2020

No 2/11/2020

No 2/11/2020

No 2/11/2020

No 2/11/2020

No 2/10/2020 No 2/10/2020 No 2/11/2020 No 2/11/2020 No 2/11/2020 No 2/9/2020

No 2/7/2020 No 2/8/2020

7 of 19

4/10/2020 11:13:14 AM

Case 1:20-cv-21457-KMW Document 66-4 Entered on FLSD Docket 04/21/2020 Page 10 of 21
Miami-Dade Corrections and Rehabilitation Department
INMATE GRIEVANCE REPORT
FROM: 1/1/2020 TO: 4/10/2020

CURRENT CONTROL

FACILITY

NUMBER

MW20-02032

MW20-02033

MW20-02034

MW20-02035

MW20-02036

MW20-02037

MW20-02038

MW20-02039

MW20-02040

MW20-02041

MW20-02042

MW20-02043

MW20-02044

MW20-02045

MW20-02046

MW20-02047

CIN
1121472 1205903 1208252 752647 1190782 1039090 1172271 945442 982560 968647 304631 1123486 1117418 949968 1208252 419433

8 of 19

INMATE NAME
TORRES, CHRISTOPHER
EARNSHAW, JUSTIN
BATTISTONE, ZACHARY BROWN, KEITH BAILEY, JABARI POWELL,
JACQUELYN PEREZ, ASHLEY MUGICA,
JACQUELINE ARGUETA, RONALD RICHARD, WILLIAM DUPONT, RANDY RUIZ LOBO, MIGUEL RILEY, DEONTAE SULET, LEMAY
BATTISTONE, ZACHARY WIGGINS, AIRON

CURR CELL
M2B3 M3B1 M1D3 M3A4 M2B3 M2D1 M2D1 M2D1 M2C1 M3C4 M3C4 M3C1 M3C2 M3C2 M1D3 M125

SUBST

GRIEV TYPE

GRIEV SUBTYPE

EMRG

IA

No Personal Property

Yes Personal Hygiene

No

Food Services

No Classification/Co

nfinement

No

Food Services

No Staff Complaints

Other

No Staff Complaints

Other

No Staff Complaints

Other

No

Medical Care

Sick Call

Immediate

health issues

No

Medical Care Medical Illness

No

Medical Care

Special

Immediate

Passes/Reque health issues

Yes

Medical Care MedicasltIllness Immediate

health issues

Yes

Other

Pen

Religious

Activities/Meals

No

Mail

Yes

Maintenance

APPL
No

GRIEV DATE
2/12/2020

No 2/11/2020

No 2/5/2020

No 2/13/2020

No 2/12/2020

No 2/12/2020

No 2/14/2020

No 2/14/2020

No 2/18/2020

No 2/17/2020

No 2/14/2020

No 2/17/2020

No 2/18/2020

No 2/19/2020

No 2/18/2020

No 2/19/2020

4/10/2020 11:13:14 AM

Case 1:20-cv-21457-KMW Document 66-4 Entered on FLSD Docket 04/21/2020 Page 11 of 21
Miami-Dade Corrections and Rehabilitation Department
INMATE GRIEVANCE REPORT
FROM: 1/1/2020 TO: 4/10/2020

CURRENT CONTROL

FACILITY

NUMBER

MW20-02048

MW20-02049

MW20-02050

MW20-02051

MW20-02052

MW20-02053

MW20-02054

MW20-02055

MW20-02056

MW20-02057

MW20-02058

MW20-02059 MW20-02060 MW20-02061

CIN

INMATE NAME

CURR

SUBST

GRIEV TYPE

GRIEV SUBTYPE

EMRG

IA

CELL

1221974

REESE,

M1D3

Pen

Mail

JASON

215972

RODRIGUEZ,

M2C1

Pen Staff Complaints

Other

OMAR

215972

RODRIGUEZ,

M2C1

Pen Staff Complaints

Other

OMAR

1034286

DUKES,

M3A1

No Staff Complaints

Other

WILLIS

898559

RIBEIRO,

M3A4

Pen Staff Complaints

Other

MICHAEL

1167015 RIVERO-ZERTUCHE, M3A4

No Staff Complaints

Other

JESUS

419433

WIGGINS,

M122

Yes

Dental Care Request for Immediate

AIRON

Services

health issues

1190782

BAILEY,

M2B3

No

Mail

JABARI

688784

BYRD,

M3D2

No Staff Complaints

Other

TERRANCE

727383

NEAL,

M2C3

No

Medical Care

Sick Call

MIKE

727383

NEAL,

M2C3

No

Mental Health Complaint

MIKE

Care

Against Mental

Health Staff

698936

CORCHO,

M2D1

No

Medical Care

Sick Call

LIZ

1211743

ANTOINE,

M2D1

Yes

Medical Care Medication

ARLENE

926038

BRALEY,

M2D3

Yes

Medical Care Complaints

AMANDA

Against

Medical Staff

APPL
No

GRIEV DATE
2/19/2020

No 2/18/2020

No 2/18/2020

No 2/20/2020

No 2/20/2020

No 2/20/2020

No 2/18/2020

Yes 2/20/2020

No 2/13/2020

No 2/17/2020

No 2/17/2020

No 2/16/2020 No 2/18/2020 No 2/19/2020

9 of 19

4/10/2020 11:13:14 AM

Case 1:20-cv-21457-KMW Document 66-4 Entered on FLSD Docket 04/21/2020 Page 12 of 21
Miami-Dade Corrections and Rehabilitation Department
INMATE GRIEVANCE REPORT
FROM: 1/1/2020 TO: 4/10/2020

CURRENT CONTROL

FACILITY

NUMBER

MW20-02062

CIN
1148896

MW20-02063 MW20-02064 MW20-02065 MW20-02066 MW20-02067 MW20-02068 MW20-02069 MW20-02070 MW20-02071 MW20-02072 MW20-02073 MW20-02074 MW20-02075 MW20-02076

698936 698936 575318 1174171 711603 627728 219635 427389 364091 652869 574796 1167515 1147481 592049

INMATE NAME
STRICKLAND, DESIRAY
CORCHO, LIZ
CORCHO, LIZ
HUDSON, BERNARD
TODD, JONATHAN TOWNSEND,
LARICA GAVARRETE,
CRISTINO BINGHAM, CLINTON FARINAS, EUGENIO CARBALLEIRA, CARLOS ROBINSON,
SHAUN MARTINEZ,
WILLIAM RATLIFF, DAVEY RENTE, LEANDRO ESPINAL, MARCOS

CURR CELL
M2D1
M2D1 M2D1 M3C3 M3C2 M2D2 M3B2 M3D3 M3D2 M3D4 M3A2 M3A2 M3A2 M3A3 M3A2

SUBST

GRIEV TYPE

GRIEV SUBTYPE

EMRG

IA

No

Medical Care Complaints

Against

Medical Staff

Yes Sanitation/Cleanli

ness

Pen

Commissary

No

Dental Care Request for Immediate

Services

health issues

Yes

Miscellaneous

No

Food Services

Food spoilage

No

Miscellaneous

Pen Personal Property

No

Dental Care Request for

Services

No

Food Services

Yes

Maintenance

Yes

Maintenance

Yes

Maintenance

Yes

Commissary

Yes

Maintenance

APPL
No

GRIEV DATE
2/19/2020

No 2/18/2020 No 2/20/2020 No 2/21/2020 No 2/20/2020 No 2/20/2020 No 2/19/2020 No 2/19/2020 No 2/14/2020 No 2/22/2020 No 2/25/2020 No 2/25/2020 No 2/25/2020 No 2/25/2020 No 2/25/2020

10 of 19

4/10/2020 11:13:14 AM

Case 1:20-cv-21457-KMW Document 66-4 Entered on FLSD Docket 04/21/2020 Page 13 of 21
Miami-Dade Corrections and Rehabilitation Department
INMATE GRIEVANCE REPORT
FROM: 1/1/2020 TO: 4/10/2020

CURRENT CONTROL

FACILITY

NUMBER

MW20-02077

MW20-02078

MW20-02079

MW20-02080

CIN
1196061 1220524 1116525 926038

MW20-02081 MW20-02082 MW20-02083 MW20-02084 MW20-02085 MW20-02086 MW20-02087 MW20-02088 MW20-02089 MW20-02090 MW20-02091

413299 1142468 1217589 837504 582593 1220524 304631 304631 945929 1071075 880305

INMATE NAME
EARNSHAW, WILLIAM MANNING, JESSICA LOPEZ DE
QUERALTA, ABLRFAOLNESYO, AMANDA
GARCIA, EFRAIN SOTELO, ALEXIS GREGGS, EDWARDS ANDERSON, CHRISTOPHER KING, TAMERA MANNING, JESSICA DUPONT, RANDY DUPONT, RANDY
POP, BRANDON ZAPATA, DYSTANY
REED, LATRAVIA

CURR CELL
M3A4 M2D3 M3B1 M2D3
M3A1 M2B3 M3D4 M3D4 M2D2 M2D3 M3C4 M3C4 M2C2 M2D4 M2D4

SUBST

GRIEV TYPE

GRIEV SUBTYPE

EMRG

IA

Pen Personal Property

Yes

Medical Care Medication

No

Medical Care Medical Illness Immediate

health issues

Pen

Medical Care Complaints

Against

Medical Staff

No Personal Property

No Personal Property

No Staff Complaints

Other

No Staff Complaints

Other

No

Facility

Operations

Yes

Maintenance

No

Medical Care

Sick Call

No

Medical Care

Sick Call

Yes

Facility

Operations

No

Food Services

No Staff misconduct

Imminent safety issues

APPL
No

GRIEV DATE
2/25/2020

No 2/21/2020

No 2/19/2020

No 2/24/2020

No 2/26/2020 No 2/24/2020 No 2/24/2020 No 2/24/2020 No 2/24/2020 No 2/23/2020 No 2/24/2020 No 2/24/2020 No 2/23/2020 No 2/26/2020 No 2/27/2020

11 of 19

4/10/2020 11:13:14 AM

Case 1:20-cv-21457-KMW Document 66-4 Entered on FLSD Docket 04/21/2020 Page 14 of 21
Miami-Dade Corrections and Rehabilitation Department
INMATE GRIEVANCE REPORT
FROM: 1/1/2020 TO: 4/10/2020

CURRENT CONTROL

FACILITY

NUMBER

MW20-03001

MW20-03002

MW20-03003

MW20-03004

MW20-03005

CIN
1175154 688784 1149775 650760 1215718

MW20-03006

347700

MW20-03007 MW20-03008 MW20-03009 MW20-03011 MW20-03012 MW20-03013 MW20-03014 MW20-03015 MW20-03016

757409 403267 1220524 727383 727383 727383 1205903 958716 1057519

12 of 19

INMATE NAME
EWERS, DALE BYRD,
TERRANCE WILLIAMS, JEREMIAH
EVANS, JIMMIE HALL, KRISTIAN
SMITH, CARL
RAMOS, JULIO
JIMENEZ, DAMIAN MANNING, JESSICA NEAL,
MIKE NEAL, MIKE NEAL, MIKE EARNSHAW, JUSTIN TURNAGE, MELVIN JIMENEZ, JOSE

CURR CELL
M3C4 M3D2 M150 M123 M3D4
M3D1
M2B1 M3C2 M2D3 M3A1 M3A1 M3A1 M3B1 M3B4 M3B4

SUBST

GRIEV TYPE

GRIEV SUBTYPE

No

Medical Care

Special

Passes/Reque

No Staff Complaints

Otshter

Pen

Grievance

Process

No Staff Complaints

Other

No

Medical Care Complaints

Against

Medical Staff

No

Medical Care Complaints

Against

Medical Staff

No Personal Property

No

Food Services

Yes

Facility

Operations

Pen Staff Complaints

Other

Pen Staff Complaints

RTR

No Staff Complaints

Other

No

Facility

Operations

No

Facility

Operations

No

Facility

Operations

EMRG

IA

APPL

GRIEV

DATE

No 2/28/2020

No 2/13/2020

No 2/28/2020

No 3/3/2020

No 2/29/2020

No 2/27/2020

Yes 2/29/2020 No 3/5/2020 No 3/5/2020 No 3/9/2020 No 3/9/2020 No 3/9/2020 No 3/9/2020 No 3/6/2020 No 3/5/2020

4/10/2020 11:13:14 AM

Case 1:20-cv-21457-KMW Document 66-4 Entered on FLSD Docket 04/21/2020 Page 15 of 21
Miami-Dade Corrections and Rehabilitation Department
INMATE GRIEVANCE REPORT
FROM: 1/1/2020 TO: 4/10/2020

CURRENT CONTROL

FACILITY

NUMBER

MW20-03017

MW20-03018

MW20-03019

MW20-03020

MW20-03021

MW20-03022

MW20-03023

MW20-03024

MW20-03025

MW20-03026

MW20-03027

MW20-03028

MW20-03029

MW20-03030

MW20-03031

MW20-03032

CIN

INMATE NAME

CURR

SUBST

GRIEV TYPE

GRIEV SUBTYPE

EMRG

IA

CELL

740962

BALBIN,

M3D2

No

Commissary

MANUEL

453494

DONALDSON,

M2D1

No

Facility

ROBIN

Operations

1211743

ANTOINE,

M2D2

No

Facility

ARLENE

Operations

926038

BRALEY,

M2D3

No Sanitation/Cleanli

AMANDA

ness

1211743

ANTOINE,

M2D2

No Staff Complaints

Other

ARLENE

1188636

BELL,

M2D3

No

Facility

MAIA

Operations

823052

TABLADA,

M2C2

Pen Personal Property

JOSE

1205104

CASTILLO,

M2C1

No Staff Complaints

Other

JAIRO

1020451

CYRIUS,

M137

No

Religious

JOHNSMITH

Activities/Meals

304631

DUPONT,

M3C4

Pen

Medical Care Medical Illness Immediate

RANDY

health issues

1143839

SANDS,

M3C1

No

Medical Care Medication -

ISAIH

Not Received

1205905

BILLINGS,

M2D1

Yes

Medical Care

Sick Call

CAMERON

628416

WILLIAMS,

M2D2

No Staff Complaints

Other

LISA

688784

BYRD,

M3D2

No

Dental Care Delay in Care Immediate

TERRANCE

health issues

863893

LEXTE-VIDAL,

M2B1

No Personal Property

ENRIQUE

959975 CASTRO-ARROYO, M2B2

Yes Personal Property

ONELIO

APPL
No

GRIEV DATE
3/6/2020

No 3/8/2020

Yes 3/7/2020

No 3/9/2020

Yes 3/7/2020

Yes 3/6/2020

No 3/10/2020

No 3/10/2020

No 3/9/2020

No 3/10/2020

No 3/8/2020

No 3/8/2020

No 3/9/2020

No 3/10/2020

No 3/3/2020

No 3/11/2020

13 of 19

4/10/2020 11:13:14 AM

Case 1:20-cv-21457-KMW Document 66-4 Entered on FLSD Docket 04/21/2020 Page 16 of 21
Miami-Dade Corrections and Rehabilitation Department
INMATE GRIEVANCE REPORT
FROM: 1/1/2020 TO: 4/10/2020

CURRENT CONTROL

FACILITY

NUMBER

MW20-03033

MW20-03034

MW20-03035

MW20-03036

MW20-03037

MW20-03038

MW20-03039

MW20-03040

MW20-03041

MW20-03042

MW20-03043

MW20-03044

MW20-03045

MW20-03047

MW20-03048

MW20-03049

CIN
1196061 1048256 1108368 427389 994230 324436 364091 1034286 1215611 1178954 578308 1115900 1204484 727383 727383 319135

14 of 19

INMATE NAME
EARNSHAW, WILLIAM RICALLS, ASHANAE HURT,
CHRISTINA FARINAS, EUGENIO JUNCO,
JULIAN DOUGLAS, SHERMAN CARBALLEIRA,
CARLOS DUKES, WILLIS LEVY, GEORGE NATAREN, CARLOS FLORES, MIGUEL GARCIA, NICHOLAS BECK, BERNARD NEAL,
MIKE NEAL, MIKE SANJURJO, JOSE

CURR CELL
M3A4 M2D4 M2D4 M3D2 M3D2 M3C3 M3B2 M3B1 M3B4 M3D2 M3A1 M3A2 M3A1 M3A1 M3A1 M3A4

SUBST

GRIEV TYPE

GRIEV SUBTYPE

EMRG

IA

No

Food Services

Yes Personal Property

No Sanitation/Cleanli ness
Pen Staff misconduct

Yes

Maintenance

Imminent safety issues

No

Inmate Finance

Yes

Medical Care Medication -

Not Received

Yes

Maintenance

No

Religious

Activities/Meals

Yes

Maintenance

Yes

ADA

Pen Personal Property

No Sanitation/Cleanli ness
No Staff Complaints

RTR

No Staff Complaints

Other

No

Food Services

APPL
No

GRIEV DATE
3/13/2020

No 3/8/2020

No 3/10/2020

No 3/4/2020

No 3/15/2020

Yes 3/17/2020

No 3/12/2020

No 3/9/2020

No 3/14/2020

No 3/15/2020

No 3/18/2020

No 3/18/2020

Yes 3/18/2020

No 3/18/2020

No 3/18/2020

No 3/18/2020

4/10/2020 11:13:14 AM

Case 1:20-cv-21457-KMW Document 66-4 Entered on FLSD Docket 04/21/2020 Page 17 of 21
Miami-Dade Corrections and Rehabilitation Department
INMATE GRIEVANCE REPORT
FROM: 1/1/2020 TO: 4/10/2020

CURRENT CONTROL

FACILITY

NUMBER

MW20-03050

MW20-03051

MW20-03052

MW20-03053

MW20-03054

MW20-03055

MW20-03056

MW20-03057 MW20-03058 MW20-03059 MW20-03060 MW20-03061 MW20-03062 MW20-03063 MW20-03064

CIN

INMATE NAME

CURR

SUBST

GRIEV TYPE

GRIEV SUBTYPE

EMRG

IA

CELL

588033

WILLIAMS,

M3A3

Yes

Facility

TERRANCE

Operations

1212015

WESBY,

M2C3

No

Food Services

OMANDO

820749

WILLIAMS,

M2C3

Pen

Miscellaneous

NATHAN

748011

DAVIS,

M3D1

No

Medical Care

Sick Call

Immediate

RASHAD

health issues

1121155

WILLIAMS,

M2D1

No

Medical Care

Sick Call

Immediate

TAMARA

health issues

688784

BYRD,

M3D2

No

Medical Care Complaints

TERRANCE

Against

Medical Staff

688784

BYRD,

M3D2

Pen

Mental Health Complaint

TERRANCE

Care

Against Mental

Health Staff

996644

ZAMOR,

M2C3

No Staff Complaints

Other

VLADIMIR

820749

WILLIAMS,

M2C3

Yes

Miscellaneous

NATHAN

945929

POP,

M2C2

Yes Personal Property

BRANDON

727383

NEAL,

M3A1

No

Other

MIKE

920341 PEREZ-GONZALEZ, M3A2

No

Dental Care Request for Immediate

AMAURY

Services

health issues

274301

ROBINSON,

M2B1

No Personal Property

KEITH

1223086

ALSTON,

M2D4

No Personal Property

FAITH

1122791

GUERRA,

M3B1

No Personal Property

JORGE

APPL
No

GRIEV DATE
3/18/2020

No 3/16/2020

No 3/18/2020

No 3/18/2020

No 3/18/2020

No 3/21/2020

No 3/22/2020

No 3/18/2020 No 3/19/2020 No 3/23/2020 No 3/18/2020 No 3/25/2020 Yes 3/20/2020 No 3/21/2020 No 3/20/2020

15 of 19

4/10/2020 11:13:14 AM

Case 1:20-cv-21457-KMW Document 66-4 Entered on FLSD Docket 04/21/2020 Page 18 of 21
Miami-Dade Corrections and Rehabilitation Department
INMATE GRIEVANCE REPORT
FROM: 1/1/2020 TO: 4/10/2020

CURRENT CONTROL

FACILITY

NUMBER

MW20-03065

MW20-03066

MW20-03067

MW20-03068

MW20-03069

MW20-03070

MW20-03071

MW20-04001

MW20-04002

MW20-04003

MW20-04004

MW20-04005

MW20-04006

MW20-04007 MW20-04008

CIN
1223685 853878 1115900 863893 545261 1096280 1211743 727383 1167332 1198474 219635 1223685 688784

INMATE NAME
WELCH, MARK
BROWN, ALEX
GARCIA, NICHOLAS LEXTE-VIDAL, ENRIQUE
LOUIS, SOSTHENE
MARCH, ANTOINETTE
ANTOINE, ARLENE
NEAL, MIKE LOPEZ, JOHNATHON HERNANDEZMEDINA, ENRIQUE BINGHAM, CLINTON WELCH, MARK BYRD, TERRANCE

CURR CELL
M3D3 M3D2 M3A2 M2B1 M2B1 M2D2 M2D2 M3A1 M3A1 M3A1 M3D3 M3D3 M3D2

937880 1118424

GONZALEZ, RUDOLPH DOPICO,
OMAR

M2B1 M3B2

SUBST

GRIEV TYPE

GRIEV SUBTYPE

EMRG

IA

No

Food Services

No Staff Complaints

Other

No Staff Complaints

Other

No Personal Property

No Sanitation/Cleanli

ness

Yes

Facility

Operations

Pen

Facility

Operations

Pen Staff Complaints

No Staff Complaints

RTR Other

Imminent safety issues

No Staff Complaints

Other

No Staff Complaints

Other

Pen

Food Services

No

PREA

PREA

Sexual

Staff/Inmate abuse\harrass

ment

Yes Personal Property

No

Medical Care Medical Illness

APPL
Yes

GRIEV DATE
3/24/2020

No 3/23/2020

No 3/27/2020

No 3/27/2020

No 3/26/2020

No 3/28/2020

No 3/28/2020

No 4/1/2020

No 4/1/2020

No 4/1/2020

No 3/29/2020

No 3/28/2020

No 4/1/2020

No 3/31/2020 No 4/1/2020

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Case 1:20-cv-21457-KMW Document 66-4 Entered on FLSD Docket 04/21/2020 Page 19 of 21
Miami-Dade Corrections and Rehabilitation Department
INMATE GRIEVANCE REPORT
FROM: 1/1/2020 TO: 4/10/2020

CURRENT CONTROL

FACILITY

NUMBER

MW20-04009

MW20-04010

CIN
1205903 1190820

MW20-04011 MW20-04012 MW20-04013 MW20-04014 MW20-04015 MW20-04016 MW20-04017 MW20-04018 MW20-04019 MW20-04020 MW20-04021 MW20-04022 MW20-04023

1162217 1210157 324436 334712 650760 1071075 1211743 553937 553937 727383 727383 1196061 727383

INMATE NAME
EARNSHAW, JUSTIN DAVIS,
DASHERA
MONTALVAN, LUIS
OWONIBI, TIWA
DOUGLAS, SHERMAN THOMAS, SAMUEL
EVANS, JIMMIE ZAPATA, DYSTANY ANTOINE, ARLENE ESCUTARY, CARLOS ESCUTARY, CARLOS NEAL, MIKE NEAL, MIKE EARNSHAW, WILLIAM NEAL, MIKE

CURR CELL
M3B1 M2D1
M3A2 M2D2 M3D1 M3B1 M123 M2D4 M2D2 M1D2 M1D2 M3A1 M3A1 M3A4 M132

SUBST

GRIEV TYPE

GRIEV SUBTYPE

EMRG

IA

No

Food Services

No

PREA

PREA

Sexual

Staff/Inmate abuse\harrass

ment

Pen Personal Property

No

Medical Care

Sick Call

Immediate

health issues

No

Mail

No

Food Services

Pen Sanitation/Cleanli

ness

Pen Sanitation/Cleanli

ness

Pen

Facility

Operations

No

Inmate Finance

Pen Inmate Finance

Pen

Legal

Pen Sanitation/Cleanli

ness

Pen

Facility

Operations

Pen

Medical Care Medical Illness Immediate

health issues

APPL
No

GRIEV DATE
3/30/2020

No 4/1/2020

No 4/3/2020 No 4/2/2020 No 4/3/2020 No 4/3/2020 No 4/3/2020 No 4/7/2020 No 4/1/2020 No 4/1/2020 No 4/1/2020 No 4/1/2020 No 4/1/2020 No 4/3/2020 No 4/9/2020

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Miami-Dade Corrections and Rehabilitation Department
INMATE GRIEVANCE REPORT
FROM: 1/1/2020 TO: 4/10/2020

CURRENT CONTROL

FACILITY

NUMBER

MW20-04024

MW20-04025

MW20-04026

MW20-04027

MW20-04028

MW20-04029

CIN
727383 727383 727383 727383 727383 727383

PTDC MW20-01020

532230

TGK

MW20-03010 MW20-02009 MW20-01033 MW20-01034 MW20-01086 MW20-01064

1220524 434914 727383 727383 1057795 727383

MW20-01019

499307

INMATE NAME
NEAL, MIKE NEAL, MIKE NEAL, MIKE NEAL, MIKE NEAL, MIKE NEAL, MIKE
MARTINEZ, EIXINHOWER
MANNING, JESSICA LANIER,
GUS NEAL, MIKE NEAL, MIKE BARAHONA, CARMEN NEAL, MIKE
WILLIAMS, CLARENCE

CURR CELL
M132 M135 M132 M132 M132 M132
P3A4
K22 K24 K41 K41 K22 K41
K24

SUBST

GRIEV TYPE

GRIEV SUBTYPE

Pen Staff Complaints

Other

EMRG

IA

APPL

GRIEV

DATE

No 4/5/2020

Pen Staff Complaints

Other

No 4/3/2020

Pen Staff Complaints

Other

No 4/8/2020

Pen Staff Complaints

Other

No 4/8/2020

Pen Staff Complaints

Other

No 4/8/2020

Pen Staff Complaints

Other

No 4/3/2020

METRO WEST DETENTION CENTER TOTAL GRIEVANCES: 266

No Personal Property

No PEN1D/I9N/2G0:2202

PRE-TRIAL DETENTION CENTER TOTAL GRIEVANCES: 1

No

Mail

No PEN3/D4I/N20G2:00

No Staff Complaints

Other

No 2/5/2020

No Staff Complaints

Other

No 1/13/2020

No Staff Complaints

Other

No 1/13/2020

No Staff Complaints

Other

No 1/25/2020

No

Medical Care Complaints Immediate

Against

health issues

Medical Staff

No

Food Services

No 1/17/2020 No 1/9/2020

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Miami-Dade Corrections and Rehabilitation Department
INMATE GRIEVANCE REPORT
FROM: 1/1/2020 TO: 4/10/2020

CURRENT CONTROL

CIN

FACILITY

NUMBER

TOTAL # of Grievances: 274

INMATE NAME

CURR CELL

SUBST

GRIEV TYPE

GRIEV SUBTYPE

EMRG

IA

APPL

GRIEV

DATE

TURNER GUILFORD KNIGHT CORRECTIONAL CENTER TOTAL GRIEVANCES: 7

PENDING: 0

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 Case 1:20-cv-21457-KMW Document 91 Entered on FLSD Docket 04/27/2020 Page 1 of 14
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
No. 20-cv-21457-KMW
ANTHONY SWAIN, et al., Plaintiffs,
v.
DANIEL JUNIOR, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department, and MIAMI-DADE COUNTY,
Defendants. /
DEFENDANTS’ REPLY1 IN FURTHER SUPPORT OF THEIR MOTION TO DISMISS COUNT I OF THE COMPLAINT
FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
The Plaintiffs’ argument that their failure to exhaust administrative remedies under the Prison Litigation Reform Act (PLRA), 42 U.S.C. 1997e(a), should be excused because no paper grievance forms were available at Metro West Detention Center is belied by the evidence in the record showing that paper forms have always been available at Metro West. The Plaintiffs raised this argument in their complaint and submitted no new evidence on this point in their response. To ﬁnd for the Plaintiffs, the Court would ﬁrst have to reject as incredible the two declarations the Defendants ﬁled with the motion. Romero Decl. [ECF No. 66-4]; Mathews Decl. [ECF No. 66-5]. The Court would then have to reject as incredible four additional declarations—already in the record—from MDCR officers who have personal knowledge of the availability of the grievance forms inside the Plaintiffs’ own housing units. Johnson Decl. [ECF No. 65-5]; Delancy Decl. [ECF No. 65-6]; Mayo Decl. [ECF No. 65-7]; Almonor Decl. [ECF No. 65-9].
1 The Defendants construe the portion of the Plaintiffs’ reply in support of their preliminary injunction motion that is dedicated to rebutting the Defendants’ administrative exhaustion arguments as the Plaintiffs’ response in opposition to the motion to dismiss. Pls.’ Reply 27–32 [ECF No. 85]; see Pls.’ Motion for Leave to Convene Three-Judge Panel and to Exceed Page Limit 1 [ECF No. 84] (characterizing the document the Plaintiffs were about to ﬁle as a “consolidated reply/response”).
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Alternatively, the Plaintiffs contend that MDCR’s procedures were “unavailable” because they would take too long to give them all of the relief they request. That ship runs aground on several different shores. First, the Plaintiffs misread Supreme Court precedent, which holds that an administrative procedure is “available” for purposes of the PLRA so long as there is the possibility that it will offer them some relief—not all relief or the precise relief they request. Second, as a matter of law they cannot claim that it would have been pointless for them to engage in the grievance process because there is no futility exception to the PLRA. Third, their argument that the process was too lengthy is based on speculation, divined from reading MDCR’s grievance procedures, that if the Plaintiffs had ﬁled a grievance (which the evidence establishes they didn’t), officials at Metro West would have taken the maximum time allowable to respond, and then if they ﬁled an appeal (which they didn’t), officials would have taken the maximum time allowable to respond. And fourth, the Plaintiffs implore the Court to adopt an “imminent danger” exception—in essence, a reworded futility exception—that no court in this Circuit has adopted, based on an improbable hypothetical in an out-of-circuit case. Dismissal is warranted.
ARGUMENT The Court, at the outset, should streamline its determination in two respects. First, it should conclude that the Plaintiffs did not exhaust administrative remedies. It is undisputed that none of them went through every steps of MDCR’s procedure (grievance, then appeal). The sole issue for decision is whether the Plaintiffs’ failure to exhaust should be excused because MDCR’s administrative remedies were not “available.” Second, the Court should dispense with step one of Turner v. Burnside’s two-step exhaustion analysis. See 541 F.3d 1077, 1082–83 (11th Cir. 2008). Accepting the statements in the declarations of Alen Blanco, [ECF No. 80-25] ¶ 18, Bayardo Cruz, [ECF No. 80-27] ¶ 15, and Peter Bernal, [ECF No. 80-29] ¶ 17, as true, the Court would potentially ﬁnd that MDCR officials prevented them from ﬁling grievances, rendering administrative remedies unavailable. Now, at step two, the Court must consider all the evidence and resolve credibility issues. Bryant v. Rich, 530 F.3d 1368, 1377–78 (11th Cir. 2008). When it does, it should conclude that the Defendants’ have shown that MDCR’s procedures were, in fact, available to the Plaintiffs. I. MDCR’s Grievance Procedure Was Available as a Matter of Fact. The Plaintiffs’ ﬁrst argument—that the administrative grievance procedure was “un-
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available” because they did not have access to grievance forms—is not supported by the record evidence. Their response brieﬁng leaves almost entirely undisputed declarations from six MDCR employees, some of whom are staffed in the Plaintiffs’ housing units, that consistently state that there has never been a shortage of grievance forms at Metro West. It also wholly ignores caselaw from this District and elsewhere concluding that generalized allegations that attempts to ﬁle grievances have been thwarted by jail staff are not sufficient to override exhaustion in the absence of supporting proof. The Court will see that the Plaintiffs have no supporting proof, though—just allegations from three of them that unnamed officers on unknown occasions refused to give them grievance forms, and an allegation from one of those three that he ﬁled one grievance on April 3. But the unrefuted MDCR records reﬂect that none of the seven Plaintiffs ﬁled any grievance on any issue between January 1 and April 10, 2020.
A. The record evidence, nearly all of which goes unrefuted, lies overwhelmingly in the Defendants’ favor on any disputed issue of fact.
The evidence in the record shows that paper grievance forms have always been available at Metro West and, as a result, have always been available to the Plaintiffs. The declaration of correctional counselor supervisor Terrence Mathews establishes that fact on its own. Mathews Decl. ¶ 3. The Plaintiffs proffer no evidence to rebut it. All they have is attorney argument (1) assuming that scores of inmates must have wanted to ﬁle grievances in the handful of days before they ﬁled the complaint, (2) assuming that there was such a run on grievances that counselors were unable to keep blank forms in stock; (3) speculating that Mathews is not aware of what’s going on in the units of the facility in which he is a supervisor, and (4) obtusely misreading the phrase “running low” to mean “none.” Pls. Reply 30–31. The Plaintiffs, of course, elect not to challenge (or acknowledge) Mathews’s statement that a counselor can print out a blank form at any time. Mathews Decl. ¶ 7. Nor do they refute administrator Reynaldo Romero’s declaration and the exhibit he attached, which together demonstrate (1) that no plaintiff ﬁled a grievance between January 1 and April 10, 2020; and (2) that twenty-two Metro West inmates ﬁled twenty-nine grievances in the fourteen days before the complaint was ﬁled. Romero Decl. ¶¶ 4–6 & Exh. A.
Even more unrefuted evidence of the availability of grievance forms can be found in the declarations—provided with the Defendants’ response to the preliminary injunction motion—of four MDCR officers with intimate knowledge of the Plaintiffs’ housing units. These declarations speak with one voice in describing the availability of paper grievance
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forms. First, Officer Beatrice Almonor, who is assigned to Anthony Swain’s unit (1D2), attests that MDCR’s “grievance process is available to all inmates in Unit 1D2,” and “there has been no shortage of grievance forms in Unit 1D2 at any point in 2020.” Almonor Decl. ¶¶ 3, 12 (emphasis added). Next, Officer Patricia Delancy, who is assigned to Winfred Hill and Peter Bernal’s unit (1D3), attests that (1) “[t]here are sufficient grievance forms in Unit 1D3”; (2) neither Bernal nor Hill asked her for a grievance at any point in 2020; (3) if she does not have grievance forms on her person, she “can always get extra forms from the counselors or [her] corporal”; and (4) “[t]here is no shortage of paper grievance forms in Unit 1D3 and there has never been one at any time during 2020.” Delancy Decl. ¶¶ 3, 6 (emphasis added). Further, Officer Dasmine Mayo, who is assigned to Deondre Willis, Bayardo Cruz, Ronniel Flores, and Alen Blanco’s unit (2C2), attests that inmates can request a grievance form at any time from MDCR staff members and that “[g]rievance forms are available in the unit and there has been no shortage of grievance forms in Unit 2C2 at any point in 2020.” Mayo Decl. ¶ 16. Finally, Corporal Bridgett Johnson, who oversees 1 Delta Wing, attests that (1) “[g]rievance forms are kept in every unit at the officer’s desk”; (2) she keeps grievance forms at her own desk; (3) “1 Delta Wing has sufficient grievance forms to be able to provide to any inmate upon request”; (4) “[t]here has been no shortage of grievance forms in 1 Delta Wing at any point in 2020”; (5) she has never refused to provide a grievance form to any inmate, nor is she aware of any officer under her command or at Metro West in general refusing to provide grievance forms; and (6) any MDCR employee refusing to provide a grievance form to an inmate would be subject to discipline. Johnson Decl. ¶ 3, 19.
Faced with that wealth of corroborative testimony from those with personal knowledge, the Plaintiffs muster one feeble response: Officer Mayo was out sick from March 25 through April 11. Pls.’ Reply 31. They argue that her testimony is not beneﬁcial to the Defendants because she wouldn’t know “that there were no grievance forms available to ﬁle an emergency grievance in the days before this lawsuit.” Id. That impliedly acknowledges that she would have known whether there were grievance forms available before March 25—during the ﬁrst critical weeks of Metro West’s response to the COVID-19 pandemic.
The Governor of Florida declared a state of emergency on March 9. Gov’r of Fla., Exec. Order No. 20-52 (Mar. 9, 2020), available at https://www.ﬂgov.com/wp-content/ uploads/orders/2020/EO_20-52.pdf. MDCR took two major remedial steps—canceling all visitation and limiting inmate movement—on March 12. Junior Decl. ¶¶ 44, 52 [ECF No.
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65-1]. Over the next twenty-one days, instead of ﬁling any grievances about the “unprecedented global pandemic” beginning “to reach the United States and Miami,” Pls.’ Reply. 31, the Plaintiffs rounded up ten experts, completed seven lengthy declarations, and prepared a class action complaint for ﬁling in federal court. This revelation that the Plaintiffs apparently planned to ﬁle grievances only in the days before they ﬁled that complaint—by which time the forms were suddenly unavailable throughout all of Metro West—betrays a critical truth: the Plaintiffs never intended to see the grievance process through to its conclusion. They had come to the foregone conclusion that the lawsuit would be ﬁled regardless, in open deﬁance of the PLRA’s policy goals of “eliminat[ing] unwarranted federal-court interference with the administration of prisons” and “‘affor[ding] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.’” Woodford v. Ngo, 548 U.S. 81, 93 (2006) (quoting Porter v. Nussle, 534 U.S. 516, 525 (2002)); see also United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020) (recognizing that “strict compliance with [statutory exhaustion requirements] takes on added—and critical importance” when prison officials, who have a “shared desire for a safe and healthy prison environment,” engage in “extensive and professional efforts to curtail the virus’s spread,” as the Defendants have here). It’s impossible to know how the grievance process would have played out because the Plaintiffs decided collectively to bypass it.
B. The Plaintiffs ignore, at their own peril, applicable caselaw holding that an inmate alleging that his attempts at exhaustion were thwarted must provide proof to support those allegations.
The Plaintiffs pay not one word of mind to the caselaw the Defendants cited in their motion standing for the proposition that a plaintiff alleging that prison officials prevented him from exhausting “must have some supporting proof of his assertions,” as “bald assertions that attempts at exhaustion were thwarted by jail staff are insufficient.” Kingcade v. Parker, 949 F. Supp. 2d 1232, 1239 (S.D. Fla. 2013); see also Filmore v. Cooper, No. 18-0955, 2020 WL 1275385, at *6 (M.D. Fla. Mar. 17, 2020); Teran v. Johns, No. 17-0009, 2017 WL 4678220, at *4 (S.D. Ga. Oct. 17, 2017), report and recommendation adopted, 2017 WL 6028400 (S.D. Ga. Dec. 5, 2017).2 It’s eminently clear why: these decisions cut to the heart
2 This view is shared by courts throughout the Circuit; the Plaintiffs cite not one decision even addressing the issue—let alone coming out the other way. See, e.g., Williams v. Barrow, 559 F. App’x 979, 987–88 (11th Cir. 2014) (affirming dismissal of complaint for failure to exhaust where the plaintiff’s allegation that he failed to exhaust because of “escalating retaliation” was not supported by evidence of actual threats of retaliation); Kozuh v. Nichols, 185 F. App’x 874, 878 (11th Cir. 2006) (affirming dismissal of complaint for
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of their only “evidence”—on the whole uncorroborated, nonspeciﬁc allegations from three
Plaintiffs. Blanco alleges that he “tried to ﬁle grievances repeatedly,” that he asked “the
officers at every shift” for grievance forms but every officer told him to wait, and that he
ﬁled one grievance on April 3 after forms were brought to his unit. Blanco Decl. ¶ 18. Cruz
claims he attempted to ﬁle a grievance on April 1, but “Corrections” said they did not have
any forms, and an unnamed corporal said the same. Cruz Decl. ¶ 15. And Bernal states that
he has not been able to submit grievances because of the lack of grievance forms in his cell,
and that his (also unnamed) counselor, when asked for grievance forms, said “I’m working
on it, I’m working on it,” but never provided the grievance forms. Bernal Decl. ¶ 17.
Not a one of these allegations is supported by any proof. And besides Blanco’s state-
ment that he ﬁled a grievance on April 3, none of the allegations contain any detail at all.
Compare Filmore, 2020 WL 1275385, at *6 (“Plaintiff does not provide any factual detail
explaining the steps he took to obtain formal grievance forms, such as who he asked, how
many times he asked, or whether he took other measures to obtain the forms.”), and Teran,
2017 WL 4678220, at *4 (“[H]e does not state when he requested grievance forms or iden-
tify the prison official who denied his request.”), with Minnis v. Jones, No. 17-20575, 2017
failure to exhaust where there was no evidence to support plaintiff’s allegations that he was thwarted from bringing his grievances or that the grievance process was unavailable); Crutchley v. Chambers, No. 19-0043, 2020 WL 1301633, at *4 (M.D. Ga. Feb. 6, 2020) (“While Plaintiff claims ‘several different officers’ refused to provide him a grievance form, he does not give the officers’ names, the dates these incidents allegedly occurred, or any other speciﬁc facts supporting his claims.”), report and recommendation adopted, 2020 WL 1289171 (M.D. Ga. Mar. 18, 2020); Hines v. Butts, No. 18-0456, 2019 WL 7842418, at *5 (M.D. Ga. Oct. 9, 2019) (“No evidence supports Plaintiff’s assertion that she was thwarted from accessing the grievance appeals process.”), report and recommendation adopted, 2019 WL 7208423 (M.D. Ga. Dec. 27, 2019), appeal dismissed sub nom. Hines v. Warden, Pulaski State Prison, No. 20-10252, 2020 WL 1951399 (11th Cir. Apr. 1, 2020); Rodriguez v. Clupper, No. 17-0387, 2018 WL 3525161, at *3 (M.D. Ga. July 20, 2018) (without evidence to support them, the plaintiff’s “allegations that the counselors deliberately hindered his grievance request simply are not credible”); Moss v. Knox, No. 16-0010, 2018 WL 1221868, at *3 (M.D. Ga. Feb. 2, 2018) (recommending rejecting plaintiff’s claim that he was prevented from ﬁling grievances because he supplied no evidence to support his allegations), report and recommendation adopted sub nom. Moss v. Blanks, 2018 WL 1221484 (M.D. Ga. Mar. 8, 2018); Purvis v. Dukes, No. 16-0015, 2017 WL 763931, at *3 (S.D. Ga. Jan. 19, 2017) (“Even if a hurdle to exhaustion existed as Purvis claimed in his Complaint, he has shown no evidence—or even cursorily rebutted defendants’ evidence—that it rose to the height of unavailability that the Supreme Court contemplated in Ross.”), report and recommendation adopted, 2017 WL 758294 (S.D. Ga. Feb. 27, 2017); Sanderson v. Marshall, 10-0878, 2013 WL 4763525, at *6 (M.D. Ala. Sept. 4, 2013) (plaintiff ’s “self-serving and conclusory” evidence did not establish that he attempted to, but was prevented from, ﬁling a grievance).
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WL 9605073, at *6 (S.D. Fla. Nov. 17, 2017) (ﬁnding that plaintiff had supported his claim of unavailability by providing detailed allegations like describing an interaction with a named warden who tore up a grievance form in front of him, told him it was not possible to grieve certain types of officers, and threatened him with transfer to another named facility if he didn’t stop ﬁling grievances), report and recommendation adopted, 2018 WL 3054803 (S.D. Fla. June 20, 2018). The Plaintiffs adduce no evidence to support vague, convenient, and self-serving allegations like “officers at every shift” said there were no forms, or “Corrections” said there were no forms, or a “counselor” never provided forms. The one speciﬁc allegation—that Blanco ﬁled a grievance on April 3—is belied by unrefuted record evidence, namely, the inmate grievance report attached to Romero’s declaration revealing no such grievance being ﬁled, and Romero’s own attestation that no Plaintiff ﬁled a grievance between January 1 and April 10. Romero Decl. ¶¶ 4–6 & Exh. A.
Lastly, the Court should ﬁnd it implausible that multiple Metro West employees would have refused to give all seven Plaintiffs grievance forms for weeks on end, given unrebutted testimony that MDCR employees are subject to discipline for such conduct. See Filmore, 2020 WL 1275382, at *6; Mathews Decl. ¶ 11; Johnson Decl. ¶ 19.
Step two of Turner asks a court to make “speciﬁc ﬁndings in order to resolve the disputed factual issues related to exhaustion.” 541 F.3d at 1082. The Court should resolve the factual dispute in the Defendants’ favor and conclude that grievance forms were available to the Plaintiffs. II. MDCR’s Grievance Procedure Was Available as a Matter of Law.
A. The Plaintiffs had the possibility of at least some kind of relief. The Plaintiffs’ alternative argument that “the typical grievance procedure would take too long to result in any changes to Plaintiffs’ conﬁnement that could protect them from imminent bodily injury and death,” Compl. ¶ 105, raises, in all pertinent respects, the same dispute the Supreme Court long ago resolved in Booth v. Churner, 532 U.S. 731 (2001). In that case, the Court held that a prison administrative procedure is “available” under the PLRA as long as it has “authority to take some action in response to [an inmate’s] complaint,” even if it cannot provide “the remedial action an inmate demands.” Id. at 736 (emphasis added). The Court reaffirmed Booth’s holding in Woodford: “a prisoner must now exhaust administrative remedies even where the relief sought . . . cannot be granted by the administrative process.” 548 U.S. at 85. And most recently, in Ross v. Blake, the Court explained that
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a grievance procedure is unavailable under a “dead-end exception” only if “officers [are] unable or consistently unwilling to provide any relief to aggrieved inmates.” 136 S. Ct. 1850, 1859 (2016) (emphasis added). In Booth, the relief that could not be granted by the process was money, but the plaintiff was required to exhaust anyway. 532 U.S. at 740–41. Here, swap out “money” for “a jail environment with an opportunity for maximum social distancing,” and it becomes clear that that precedent applies, and the Plaintiffs were required to exhaust.
Booth and its progeny—both in the Supreme Court and in the Eleventh Circuit, see Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir. 2005) (“[T]he modiﬁer ‘available’ in the PLRA means that inmates must exhaust administrative remedies so long as there is the possibility of at least some kind of relief.” (quoting Ross v. County of Bernalillo, 365 F.3d 1181, 1187 (10th Cir. 2004)))—foreclose any effort by the Plaintiffs to override exhaustion here. They do not argue (or, in light of the evidence of MDCR’s remedial efforts, cannot genuinely argue) that MDCR could not provide them any of the relief through the administrative process that they sought in their complaint, such as being given liquid hand soap, paper towels, wipes, hand sanitizer, or disinfecting supplies. Compl. 43–45. The facts on the ground defeat the argument, as MDCR began giving (or giving access to) nearly all of these same items to inmates long before the start of this lawsuit. E.g., Junior Decl. ¶¶ 29, 32; Johnson Decl. ¶¶ 11–12; Almonor Decl. ¶¶ 9, 13; Mayo Decl. ¶ 11; Delancy Decl. ¶¶ 4, 9, 11. The Plaintiffs have to admit, then, that MDCR’s procedure would, as a matter of law, afford “the possibility of some relief.” Booth, 532 U.S. at 738.
That’s all the PLRA asks of an “available” administrative remedy, so the Plaintiffs’ decision not to engage that remedy must lead to a ﬁnding that their failure to exhaust is not excused. See Nellson v. Barnhart, No. 20-0756, 2020 WL 1890670, at *4 (D. Colo. Apr. 16, 2020) (denying temporary restraining order to plaintiff who failed to exhaust administrative remedies but claimed concerns about COVID-19 excused that failure: “Plaintiff does not argue that he would be able to receive no relief whatsoever through the administrative grievance process but, rather, that the process would not be able to institute all the relief he requests immediately. But total and immediate relief is not the standard for exhaustion, ‘the possibility of some relief’ is.” (emphasis added) (quoting Ross, 136 S. Ct. at 1859)).
B. There is no futility exception to the PLRA. The Plaintiffs appear quite taken aback by the suggestion that their argument is essentially a request to create a futility exception to the exhaustion requirement. It’s unclear why,
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given that it’s exactly what they advocate for. The Supreme Court has “stress[ed] the point” that it “will not read futility or other exceptions into statutory exhaustion require-ments where Congress has provided otherwise.” Booth, 532 U.S. at 741 n.6. Congress has provided no such exception in the PLRA’s “uncompromising statutory text.” Ross, 136 S. Ct. at 1857. Futility is not a viable reason to bypass exhaustion, and the Plaintiffs’ insistence otherwise does not alter that reality.
Undaunted, the Plaintiffs make the puzzling choice to argue that on-point, precedential Eleventh Circuit caselaw is “irrelevant.” Pls.’ Reply 29 (citing Higginbottom v. Carter, 223 F.3d 1259 (11th Cir. 2000)). In Higginbottom, the Eleventh Circuit, ruling that a district court properly dismissed a plaintiff ’s complaint for fail to exhaust, declared that “the exhaustion requirement cannot be waived based upon the prisoner’s belief that pursuing administrative procedures would be futile.” Id. at 1261. The Plaintiffs attempt to cabin Higginbottom to its facts but cite no authority supporting their position that the bar on futility exceptions to the PLRA is applicable only in actions brought by inmates who didn’t ﬁle grievances because they believed they would lose. See Pls.’ Reply 29.3 “Futile” means “serving no useful purpose,” “completely ineffective.” Futile, Merriam-Webster (2020), https://www.merriam-webster. com/dictionary/futile. The Plaintiffs’ entire suit is built on the claim that MDCR’s processes—including its grievance process—are completely ineffective at stemming the risk of the spread of COVID-19, that they would serve no purpose. In other words, that they’re futile.
Perhaps the Plaintiffs lash out so forcefully at Higginbottom because it paints them into a corner by forbidding the argument that a failure to exhaust can be excused if they can convince a court that MDCR’s procedure could not give them all of the relief they wanted when they wanted it. Higginbottom is binding precedent with broad application in PLRA cases, as much as the Plaintiffs might wish otherwise. So too is Alexander v. Hawk, 159 F.3d 1321 (11th Cir. 1998), in which the Eleventh Circuit held more generally that a futility exception “do[es] not survive the new mandatory exhaustion requirement of the PLRA.” Id. at 1325. To hold otherwise, it reasoned, “would impose an enormous loophole in the PLRA, which Congress clearly did not intend.” Id.
At bottom, the claim that an inmate need not exhaust his administrative remedies because the process would take too long to provide all the relief the inmate wants is a claim for
3 Implicit in that cabining is the concession that the Plaintiffs did not share a subjective belief that, had they ﬁled grievances, they too would have lost.
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a judicially created futility exception that is unrecognized by the Supreme Court and expressly prohibited by binding Eleventh Circuit law. It is not a tool in the Plaintiffs’ arsenal.
C. The Plaintiffs’ remaining arguments are unpersuasive; COVID-19 does not make remedies unavailable, and there is no “imminent danger” exception that excuses the Plaintiffs’ failure to exhaust.
The best way to begin to address the Plaintiffs’ ﬁnal smattering of unavailability arguments is through the recent, and applicable, Fifth Circuit decision that expertly dispatched them. See Valentine v. Collier, — F.3d —, 2020 WL 1934431, at *5–7 (5th Cir. Apr. 22, 2020). In Valentine, two days after the district court granted the plaintiffs’ (inmates in a Texas jail) motion for preliminary injunction against the Texas Department of Criminal Justice (TDCJ) and two of its officials, ﬁnding it likely that the plaintiffs could prove an Eighth Amendment violation, the Fifth Circuit stayed the injunction pending appeal, concluding, inter alia, that the defendants were likely to show on appeal that the plaintiffs—who had not submitted any grievances prior to filing suit—failed to exhaust under the PLRA. Id. at *5–7.
Valentine provides this Court with an uncomplicated roadmap to dismissal that dismantles the Plaintiffs’ arguments along the way.
First, the Fifth Circuit rejected the argument that a grievance process that would take too long to provide relief to the plaintiffs given the circumstances posed by COVID-19 is “unavailable.” It explained that “reading a ‘special circumstances’ exception in the PLRA” because of concerns about the spread of COVID-19 “would undo the PLRA and ‘resurrect’ its predecessor.’” Id. at *6 (quoting Ross, 136 S. Ct. at 1858); see Nellson, 2020 WL 1890670, at *5 (“[T]he Court does not overlook the risks of COVID-19 at [the facility] or in the prison system generally. But the Court may not alter the mandatory requirements of the PLRA for COVID-19 or any other special circumstance.”). This Court should likewise reject the Plaintiffs’ indistinguishable argument.
Second, the court rejected the argument that TCDJ’s process was unavailable because it would be unable to provide relief if TCDJ used the full time allotted under state law to respond to a grievance. Id. The district court had not made the predicate ﬁnding that TDCJ “would take the full time if given the chance,” so the argument that it would was unfounded. Id. The same unfounded argument appears a staggering number of times over the Plaintiffs’ six-page response. See Pls.’ Reply 27 & n.38, 28, 29 n.39, 30, 31, 32. The Plaintiffs speculate that because MDCR’s DSOP instructs officials to provide written responses to an emergency or medical grievance “within seven calendar days,” that means officials will always
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wait seven days to take any action in response to an emergency or medical grievance. They engage in the same speculative reasoning about appeals—because the DSOP instructs officials to provide a written response to an appeal within seven days, that means officials will always take seven days to take any action in response to an emergency or medical grievance. By the end of their argument, the Plaintiffs have thoroughly convinced themselves that relief cannot be given to a defendant any earlier than “within 14-16 days.” Pls.’ Reply 32. But “[s]tatements by counsel in briefs are not evidence,” Skyline Corp. v. NLRB, 613 F.2d 1328, 1337 (5th Cir. 1980), and, much like the Valentine plaintiffs, the Plaintiffs submit no evidence to show that MDCR would take the full time if given the chance. If anything, the evidence shows the opposite. See generally Defs.’ Prelim. Inj. Response 2–10.
And third, the court turned its sights on the argument that there is some sort of “imminent danger” exception to exhaustion. The Fifth Circuit neutralized the Plaintiffs’ star case on this point, Fletcher v. Menard Correctional Center, 623 F.3d 1171 (7th Cir. 2010), a case that, since Ross, has never been cited outside the Seventh Circuit for the imminent-danger exception it created—that is, except in the district court order the Fifth Circuit stayed. The Fifth Circuit wisely declined to engage with Fletcher’s catastrophic hypothetical about an inmate who was going to die tomorrow and a procedure that prohibited responding to a grievance until two weeks after it was ﬁled. Valentine, 2020 WL 1934431, at *7. The hypothetical was irrelevant—as it is irrelevant here—because TDCJ, like MDCR, “faces no legal bar to offering timely relief” and “is empowered to act on a grievance any time up to— not after, as in Fletcher—the statutory limit.” Id.4
4 Courts across the country have refused to recognize this so-called imminent-danger exception, both in the COVID-19 context, see Nellson, 2020 WL 1890670, at *4 (declining to adopt Fletcher and the exception to excuse the plaintiff ’s failure to exhaust), and outside the COVID-19 context. See, e.g., Doering v. Kelley, No. 19-0045, 2019 WL 7500816, at *3 (E.D. Ark. Dec. 18, 2019) (recommending rejecting argument that grievances were unavailable due to allegedly dangerous living conditions; the department of corrections’ grievance procedure “includes an ‘emergency’ or expedited process when a prisoner faces ‘a substantial risk of personal injury’” that the plaintiff had not taken advantage of ), report and recommendation adopted, 2020 WL 90495 (E.D. Ark. Jan. 7, 2020); Morrow v. Capra, No. 18-9749, 2019 WL 3716009, at *4 (S.D.N.Y. Aug. 7, 2019) (“Nor does . . . the allegedly ‘ongoing and health threatening’ nature of plaintiff ’s injuries, render plaintiff ’s administrative remedies unavailable.”), appeal dismissed, No. 19-2905, 2020 WL 1188323 (2d Cir. Feb. 13, 2020); Coleman v. Washington, No. 18-13171, 2019 WL 6698063, at *4 (E.D. Mich. Oct. 31, 2019) (“Plaintiff improperly attempts to create an imminent danger exception to Section 1997e(a).”), report and recommendation adopted sub nom. Coleman v. Romanowski, 2019 WL 6683853 (E.D. Mich. Dec. 6, 2019); Brown v. May, No. 18-3347, 2019 WL 3225621, at *3 (D.S.C. June 27, 2019) (“The [PLRA’s] exhaustion requirement
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At least one Eleventh Circuit panel has held that there is no imminent-danger excep-
tion to exhaustion. The Plaintiffs disregard Bracero v. Secretary, Florida Department of Cor-
rections, 748 F. App’x 200 (11th Cir. 2018), cert. denied sub nom. Bracero v. Inch, 139 S. Ct. 1631
(2019), the case that held it, as an “unpublished pro se prisoner case[] that do[es] not support
Defendants’ position at all.” Pls.’ Reply 29. Their handwaving is an anemic effort to distract
from Bracero’s ﬂat rejection of the same imminent danger exception the Plaintiffs want the
Court to create. Like here, the plaintiff in Bracero did not comply with the offered adminis-
trative grievance procedure. From that point, the plaintiff advanced the Plaintiffs’ exact ar-
gument—that his failure to exhaust should be excused because his life and safety were in
danger. In particular, he claimed that the decision below was “not legally reasonable regard-
ing the issue of exhaustion of remedies” for several reasons, including “lack of remedy or
relief in the face of the danger appellant still face[s].” Br. of Appellant 16, Bracero v. Sec’y, Fla.
Dep’t of Corr., No. 17-14278 (11th Cir. Mar. 12, 2018) (emphasis added, underlining omitted);
see also id. at 1, 5 (“Complaint should not be dismissed when inmate allege danger.” (sic.)).
The Eleventh Circuit acknowledged that the argument was made and rejected it: Bracero’s other efforts to overcome the exhaustion requirement are unavailing. He asserts that his complaint should not have been dismissed before granting
will not be excused even where the plaintiff alleges he is in imminent danger.”), report and recommendation adopted as modiﬁed, 2019 WL 3219378 (D.S.C. July 17, 2019); Ramey v. Franco, No. 16-2107, 2019 WL 699135, at *9 (E.D. Cal. Feb. 20, 2019) (“[P]laintiff’s claim that his circumstances warranted an emergency appeal and therefore excused exhaustion is without merit.”); Williams v. Navarro, No. 18-1964, 2018 WL 5112218, at *4 (S.D. Cal. Oct. 19, 2018) (rejecting inmate’s argument that he was exempt from exhaustion due to “imminent danger”; “while ‘imminent danger’ is a statutory exception to § 1915(g)’s 3-strikes rule, the Court may not read ‘exceptions into 42 U.S.C. § 1997e(a)’s statutory exhaustion requirement where Congress has provided otherwise” (cleaned up) (quoting Booth, 532 U.S. at 741, n.6)); Hall v. Ballard, No. 15-12543, 2018 WL 3709049, at *4 (S.D. W. Va. July 11, 2018) (recommending rejecting the argument that exhaustion was excused “due to his fear of imminent danger, death by [jail] staff” and concluding that plaintiff had not “demonstrated that the administrative remedies were unavailable to him”), report and recommendation adopted, 2018 WL 3676946 (S.D. W. Va. Aug. 2, 2018); accord United States v. Rabadi, No. 13-0353, 2020 WL 1862640, at *3 (S.D.N.Y. Apr. 14, 2020) (“[T]he vast majority of courts to have considered the issue [of statutory exhaustion under the federal First Step Act, 18 U.S.C. § 3582(c)(1)(A)] have concluded that a failure to satisfy [the statute]’s ﬁling requirements bars defendants from ﬁling motions for compassionate release, and that the judiciary has no power to craft an exception to these requirements for defendants seeking release during the COVID-19 pandemic.” (cleaned up) (collecting seven cases denying motions for compassionate release where the inmate failed to exhaust even though the inmate cited the dangers of the risk of COVID-19 infection)).
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injunctive relief because he alleged imminent danger, but exhaustion is a prerequisite for any prisoner suit. Bracero, 748 F. App’x at 203 (emphases added). Put simply, the court concluded that the plaintiff’s allegation that he faced imminent danger was an unavailing effort to overcome the exhaustion requirement. The Plaintiffs offer the Court no principled reason to conclude differently. Fletcher is just as nonprecedential as Bracero, but Bracero—a twenty-month-old unanimous opinion by three Eleventh Circuit Judges (W. Pryor, Rosenbaum, Anderson)—is a far more suitable vehicle than a decade-old out-of-circuit decision for indicating how the Eleventh Circuit might treat the question of an imminent-danger exception in a future precedential decision. So too is Pearson v. Taylor, 665 F. App’x 858 (11th Cir. 2016), where another panel of three Eleventh Circuit Judges ( Jordan, Rosenbaum, J. Pryor) unanimously concluded that the plaintiff’s unavailability arguments “do not appear to fall within any of [Ross’s] three ‘exceptions’ exhaustion.” Id. at 868. Whether or not Pearson has “nothing to do with the question whether the timing of a grievance process can render the remedy ‘unavailable,’” as the Plaintiffs claim in their one-sentence treatment of the decision, Pls.’ Reply 29, is of no moment. Pearson signals the view that the three exceptions in Ross are an exhaustive list. That spells doom for the Plaintiffs, of course, because “imminent danger” is not on Ross’s list.
CONCLUSION In his concurring opinion in Valentine, Judge Higginson remarked that the plaintiffs “did not submit any grievance request to prison authorities before ﬁling this lawsuit, and I am not aware of any case, nor do [the plaintiffs] or the district court cite one, in which a prisoner has been deemed compliant with the [PLRA] when there has been no attempt to ﬁle a grievance prior to suit in federal court.” Valentine, 2020 WL 1934431, at *7 (Higginson, J., concurring in the judgment). This Court should not be the ﬁrst. Under the PLRA, exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the procedure. Booth, 532 U.S. at 736; Johnson, 418 F.3d at 1156. The remedies a plaintiff must exhaust before ﬁling suit in federal court need not be “speedy,” or “effective”—they must only be available. Nussle, 534 U.S. at 524. The Court should ﬁnd against the Plaintiffs at step two of Turner, because the record evidence shows that MDCR’s administrative process was available to the Plaintiffs, and the Plaintiffs failed to exhaust their administrative remedies. Count I of the Complaint should be dismissed.
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Dated: April 27, 2020.

Respectfully submitted,
Abigail Price-Williams
Miami-Dade County Attorney
By: /s/ Zach Vosseler Zach Vosseler Fla. Bar. No. 1008856 zach@miamidade.gov
Bernard Pastor Fla. Bar. No. 46582 pastor@miamidade.gov
Erica Zaron Fla. Bar. No. 514489 zaron@miamidade.gov
Ezra S. Greenberg Fla. Bar. No. 85018 ezrag@miamidade.gov
Ana A. Viciana Fla. Bar. No. 115838 anita@miamidade.gov
Jennifer L. Hochstadt Fla. Bar. No. 56035 hochsta@miamidade.gov Assistant County Attorneys
Stephen P. Clark Center 111 N.W. First Street, Suite 2810 Miami, Florida 33128 (305) 375-5151
Counsel for Defendants

CERTIFICATE OF SERVICE On April 27, 2020, I electronically ﬁled this document with the Clerk of Court via CM/ECF and served a copy on all counsel of record via CM/ECF.
/s/ Zach Vosseler Zach Vosseler Assistant County Attorney

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 Case 1:20-cv-21457-KMW Document 100 Entered on FLSD Docket 04/29/2020 Page 1 of 52
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Case No.: 1:20-cv-21457-KMW ANTHONY SWAIN, et al.,
Plaintiffs, v. DANIEL JUNIOR, et al.,
Defendants. /
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ EMERGENCY MOTION FOR A PRELIMINARY INUNCTION
THIS MATTER is before the Court on Plaintiffs’ emergency motion for a preliminary
injunction. (DE 3). Defendant Daniel Junior, in his official capacity as Director of the Miami-
Dade Corrections and Rehabilitation Department (“MDCR”), and Defendant Miami-Dade
County (collectively, “Defendants”) oppose the motion. (DE 67; DE 65). This Order follows
the telephonic preliminary injunction hearing held on April 27-28, 2020, at which both
Parties presented argument and evidence for the Court’s consideration. (DE 96; DE 97).1
For the reasons set forth below, Plaintiffs’ motion for a preliminary injunction (DE 3) is
GRANTED IN PART AND DENIED IN PART. Plaintiffs’ motion for immediate release
under Section 2241 is DENIED; Plaintiffs’ motion for a preliminary injunction under Section
1983 is GRANTED IN PART for a period of 45 days.
1 In their reply brief, Plaintiffs for the first time request that this Court convene a three-judge panel pursuant to 18 U.S.C. § 3626(a)(3)(B), which states that “[i]n any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court.” (DE 85 at 1819). Because this issue was raised for the first time in the reply, the Court has not considered that portion of the brief and will not do so until Defendants have had the opportunity to respond to that argument. See United States v. Oakley, 744 F.2d 1553, 1556 (11th Cir. 1984) (“Arguments raised for the first time in a reply brief are not properly before the reviewing court.”); United States v. Benz, 740 F.2d 903, 916 (11th Cir. 1984) (same). Defendants may file a response addressing only Plaintiffs’ motion to convene a three-judge panel by May 11, 2020.
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I. BACKGROUND Plaintiffs Anthony Swain, Alen Blanco, Bayardo Cruz, Ronniel Flores, Deondre Willis, Peter Bernal and Winfred Hill,2 who are all pretrial detainees currently being held at Metro West Detention Center (“Metro West”) in Miami, Florida, filed their complaint, along with an emergency motion for a temporary restraining order and preliminary injunction, against Defendants, on April 5, 2020. (DE 1; DE 3). Plaintiffs present two primary claims in their complaint and emergency motion.3 First, Plaintiffs seek a preliminary injunction requiring Defendants to “follow several procedures, recommended by medical professionals and the CDC Guidance on the management of COVID-19 in jails and correctional settings, that ensure those detained at Metro West: 1) are informed about the existence of COVID-19; 2) can practice social distancing; 3) can maintain necessary hygiene; and 4) have access to adequate and timely medical treatment to screen, test, and treat symptoms.” (DE 3 at 13). This relief is sought pursuant to their claim under 42 U.S.C. § 1983. Plaintiffs argue that “Defendants are deliberately indifferent to the risk that Plaintiffs will contract COVID-19 within the current conditions of Metro West in violation of the Eighth Amendment and Fourteenth Amendment’s Due Process Clause.” Id. at 14. Second, Plaintiffs seek a writ of habeas corpus under 28 U.S.C. § 2241 requiring the immediate release of a class of all medically vulnerable pretrial detainees currently held at Metro West. Id. at 13-14.
2 It appears to be undisputed that named Plaintiff Winfred Hill was released on April 21, 2020. (DE 81-2). Accordingly, his claims against Defendants are dismissed as moot. 3 Plaintiffs seek class-wide relief on behalf of “all current and future persons detained at Metro West during the course of the COVID-19 pandemic.” (DE 1 at 30). Their motion for class certification (DE 5) remains pending.
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A. PROCEDURAL BACKGROUND After holding three telephonic conferences with the Parties over the two days immediately after this case was filed, the Court granted in part Plaintiffs’ emergency motion and entered a temporary restraining order (“TRO”) against Defendants on April 7, 2020. (DE 25). This TRO addressed the conditions of confinement challenged in Plaintiffs’ emergency motion, but did not address Plaintiffs’ 2241 claim because the Court found that further information and briefing was necessary before reaching a preliminary decision on that claim. As an initial matter, the Court ordered Defendants to provide the following information by April 9, 2020: (1) a list of individuals who met various criteria related to medical issues (as outlined in the order), and (2) “a notice describing the particular measures being employed to protect these individuals from the risk of COVID-19.” (DE 25 at 2). Defendants complied with the Court’s order and provided this information in a timely manner. (DE 29; DE 30). On April 9, 2020, the Court entered a paperless order (DE 28) setting a telephonic hearing to discuss an expedited briefing scheduling on Plaintiffs’ claim for habeas relief and allowing the Parties to file supplemental briefing as to that claim ahead of the scheduling conference, which both Parties did. (DE 35; DE 36). The paperless order also required Plaintiffs to submit “a notice containing the following information as to each named Plaintiff: (1) criminal case number(s) for current charges; (3) statement of the charge(s); and (3) bond and status of bond.” (DE 28). Plaintiffs timely submitted this information on April 12, 2020. (DE 36). After holding two additional telephonic hearings with the Parties, the Court entered an amended briefing schedule regarding Plaintiffs’ emergency motion on April 14, 2020.
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(DE 52). This order required Defendants to respond to Plaintiffs’ emergency motion by April 21, 2020, and Plaintiffs to file a reply by April 25, 2020. Id. The order also designated two doctors—one from each of the lists of candidates proposed by the Parties—to conduct an inspection of Metro West by April 18, 2020 and required a report to be filed outlining their observations as to the conditions and other factors contained in the order. Id. That joint report was filed under seal on April 20, 2020, and, with the consent of the Parties, the written portion of the report was unsealed on April 21, 2020 (the “Report”). (DE 61; DE 65). The April 14, 2020 order also required that “[o]n April 16, 2020, and every three days going forward, Defendants shall file a notice with the Court listing the number of inmates and staff tested for COVID-19 at Metro West Detention Center, including the number whose test results were positive as of that date. Defendants shall also provide information as to the number of inmates who are being quarantined each day and shall specify the numbers of individuals who: (1) are being quarantined as a result of exhibiting COVID-19 symptoms, and (2) are being quarantined as a result of possible exposure to another individual who has COVID-19.” (DE 52 at 3).4 As of April 28, 2020, 163 inmates and 17 staff tested positive for COVID-19. (DE 99).
B. THE COVID-19 PANDEMIC When this case was filed on April 5, 2020, no inmate at Metro West had tested positive for COVID-19. By April 28, 2020, 163 inmates had tested positive. (DE 99). As of the date of this Order, the United States is home to more than one million coronavirus
4 As of April 19, 2020, 15 inmates and 9 staff had tested positive for COVID-19 and over 300 inmates were being quarantined, either because they were exhibiting symptoms of the virus or because they had been exposed to someone who has tested positive for or is exhibiting symptoms of the virus. (DE 59). As of April 22, 2020, 31 inmates and 14 staff tested positive for COVID-19. (DE 72). As of April 25, 2020, 159 inmates and 16 staff tested positive for COVID-19. (DE 87).
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cases. This number represents nearly one-third of the world’s reported COVID-19 cases and includes at least 58,000 known deaths.5 See Joe Fox, et al., 58,132 people have died from coronavirus in the U.S., WASH. POST, (Mar. 27, 2020, updated Apr. 29, 2020), https://www.washingtonpost.com/graphics/2020/national/coronavirus-us-cases-deaths/. The one fact that is beyond peradventure is the unprecedented contagion of this virus and its potentially fatal consequences to medically vulnerable people, especially those living in dense congregate environments, such as assisted living facilities, detention centers and prisons. These extraordinary circumstances place us at the crossroads of public health and public safety, science and law, and constitutional and carceral demands and has occasioned judicial review in state and federal courts.
The following landscape is drawn from other orders that have been issued by courts addressing similar issues to those presented here. “COVID-19 is a disease caused by a novel coronavirus that began infecting humans in late 2019.” Money v. Pritzker, No. 20CV-2093, 2020 WL 1820660, at *2 (N.D. Ill. Apr. 10, 2020). “Symptoms include fever, cough, shortness of breath, congestion, sneezing, fatigue, and diarrhea.” Id. (internal citations omitted). “While some cases are mild, others require medical intervention, including hospitalization and intensive care.” Id. “The virus spreads from person to person through respiratory droplets, close personal contact, and from contact with contaminated surfaces and objects.” Id. “It is highly contagious.” Id.
5 Experts say these figures are likely underestimated. See, e.g., Brittany Shammas, U.S. Coronavirus death toll surpasses 50,000, WASH. POST, (Apr. 24, 2020) https://www.washingtonpost.com/nation/2020/04/24/uscoronavirus-death-toll-surpasses-50000/ (“Experts have warned that the number of reported fatalities probably underestimates the true toll of covid-19 . . . [because] methods have varied widely from state to state. And the Centers for Disease Control and Prevention initially included only those who tested positive for the virus, even with strict limitations on testing.”).
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“Currently, there is no vaccine to protect against infection by COVID-19.” Id. at 3. “To prevent infection and mitigate the spread of the virus, the Center for Disease Control (“CDC”) and other public health agencies have universally prescribed social distancing — every person should remain at a distance of at least six feet from every other person—and rigorous hygiene—including regular and thorough hand washing with soap and water, the use of alcohol-based hand sanitizer, proper sneeze and cough etiquette, and frequent cleaning of all surfaces.” Id. “The CDC recommends avoiding gatherings of more than 10 people.” Id. “Individuals in congregate environments—places where people live, eat, and sleep in close proximity—face increased danger of contracting COVID-19, as demonstrated by the rapid spread of the virus through cruise ships and nursing homes.” Id. “Despite social distancing recommendations, the disease has continued to spread [and] [t]he World Health Organization has declared COVID-19 to be a global pandemic.” Id.
On March 27, 2020, the CDC issued guidance directed at institutional facilities to combat the spread of COVID-19. See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Ctrs. for Disease Control & Prevention (Mar. 27, 2020), https://www.cdc.gov/coronavirus/2019-ncov/ downloads/guidance-correctional-detention.pdf (“CDC Guidance”). These guidelines formed the basis of the TRO issued on April 7, 2020.
Medical experts agree that a reduction in the population of correctional facilities is the best way to prevent the spread of COVID-19. The unrebutted testimony of all the experts cited by Plaintiffs—Doctors Golob, Meyer, Stern, Mishori, Greifinger, Chiao,
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Rottnek, Paredes and Greer—is the importance of either social distancing6 or reducing
the population of inmates to better achieve social distancing (many call for both). (DE 80-
14; DE 80-15; DE 80-16; DE 80-17; DE 80-18; DE 80-19; DE 80-20; DE 80-33; DE 80-34;
DE 80-35). Moreover, the two expert physicians chosen to conduct an inspection of Metro
West—Dr. Dushyantha Jayaweera and Dr. Hansel Tookes—concluded after their
inspection on April 18, 2020, that “an urgent reduction in the population in this facility and
increased screening for COVID19 infection among the staff and inmates” is necessary “to
mitigate the spread of this infection within the community.” (DE 70-1 at 1).7 The Report
also states that “[i]n our professional opinion, the high census of Metro West Detention
Center in addition to the dormitory style housing units, makes it impossible to follow CDC
guidance for social distancing measures, placing staff and inmates at risk for COVID-19
infection. We recommend an urgent decrease in the population density of the housing
units to allow for adequate social distancing for the prevention of COVID-19.” Id. And as
6 One of the declarations submitted by Defendants was sworn by Dr. Aileen Marty, MD, a “Fellow of Infectious Disease, Pathology, and an international expert on Infection Prevention, mass gathering medicine, and outbreak response.” (DE 65-10 at 1). Dr. Marty states in her declaration that “[t]he CDC’s prevention practices for incarcerated/detained persons includes implementing social distancing strategies to increase the physical space between incarcerated/detainedpersons, ‘ideally 6 feet between all individuals, regardless of the presence of symptoms.’” Id. at 4 (quoting CDC Guidance). And while Dr. Marty goes on to suggest that “the widespread use of masks ameliorates to a substantial extent the need to maintain strict social distancing of six feet to mit igate against the spread of COVID-19,” the CDC wholly disagrees. Id. at 6; see Recommendation Regarding the Use of Cloth Face Coverings, Especially in Areas of Significant Community-Based Transmission, (Apr. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html (“We now know from recent studies that a significant portion of individuals with coronavirus lack symptoms . . . and that even those who eventually develop symptoms . . . can transmit the virus to others before showing symptoms . . . In light of this new evidence, CDC recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies) especially in areas of significant community-based transmission. “It is critical to emphasize that maintaining 6-feet social distancing remains important to slowing the spread of the virus.” (emphasis added). 7 Most, if not all, experts also agree that jails and other detention facilities were not designed or equipped to handle a large-scale pandemic that spreads rapidly through populations in close quarters.
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the CDC has acknowledged, “[a]lthough social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19.” CDC Guidance, at 4.
II. LEGAL STANDARD A. PRELIMINARY INUNCTION
To obtain either a temporary restraining order or a preliminary injunction, a party must demonstrate that: “(1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.” Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247 (11th Cir. 2016). The Eleventh Circuit has characterized a preliminary injunction as an “extraordinary and drastic” remedy. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (quoting McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998)). Plaintiffs bear “the ‘burden of persuasion’ to clearly establish all four” elements. Wreal, LLC, 840 F.3d at 1247 (quoting Siegel, 234 F.3d at 1176).
Although Plaintiffs bear the burden to make a clear showing as to each of the four elements, “none of the four prerequisites has a fixed quantitative value. Rather a sliding scale is utilized, which takes into account the intensity of each in a given calculus.” State of Tex. v. Seatrain Intern., S.A., 518 F.2d 175, 180 (5th Cir. 1975). Thus, “when ‘the balance of the equities [identified in the other three factors] weighs heavily in favor of granting the stay,’” an injunction may be proper even absent overwhelming evidence demonstrating a likelihood of success on the merits. Garcia-Mir v. Meese, 781 F.2d 1450,
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1453 (11th Cir. 1986). As the Eleventh Circuit has recognized, “[a] showing of irreparable injury is ‘the sine qua non of injunctive relief.’” See Siegel, 234 F.3d at 1176 (quoting Northeastern Fla. Chapter of the Ass’n of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990)).
B. Section 1983 Claim Plaintiffs bring Count I of this action pursuant to 42 U.S.C. § 1983, which provides a private right of action against anyone who subjects any citizen of the United States, or other person within the jurisdiction thereof, to the deprivation of any rights or privileges secured by the Constitution and laws of the United States. See Rehberg v. Paulk, 566 U.S. 356 (2012). To succeed on a 1983 claim under Monell v. Dep’t of Social Services of the City of New York, 436 U.S. 658 (1978), Plaintiffs “must show: (1) the violation of a federal right occurred; (2) the existence of a municipal policy or custom; and (3) a causal connection between the violation and the municipal policy or custom.” Watts v. City of Hollywood, Fla., 146 F. Supp. 3d 1254, 1270 (S.D. Fla. 2015) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989)). The plaintiff must also show that the constitutional violation occurred “under color of State law.” Monell, 436 U.S. at 683. A plaintiff seeking to hold a municipality liable for a constitutional violation “must identify either (1) an officially promulgated county policy or (2) an unofficial custom or practice of the county shown through the repeated acts of a final policymaker for the county.” Grech v. Clayton Cty., 335 F.3d 1326, 1329 (11th Cir. 2003) (en banc).
C. Section 2241 Claim “Section 2241 provides that a writ of habeas corpus may issue to a prisoner . . . [who is] in custody in violation of the Constitution or laws or treaties of the United States.”
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Medberry v. Crosby, 351 F.3d 1049, 1059 (11th Cir. 2003) (“State pre-trial detention, for example, might violate the Constitution or the laws or treaties of the United States. . . . Such a prisoner would file an application for a writ of habeas corpus governed by § 2241.”). The Eleventh Circuit has held that “the petition for writ of habeas corpus is the sole remedy for prisoners challenging the fact or duration of their imprisonment.” Gomez v. United States, 899 F.2d 1124, 1125-26 (11th Cir. 1990) (citing Preiser v. Rodriguez, 411 U.S. 475, 504 (1973)).
“Prior to filing a habeas petition in federal court, a petitioner seeking relief from state custody must exhaust available state remedies.” Money, 2020 WL 1820660, at *20; see also Santiago-Lugo v. Warden, 785 F.3d 467, 475 (11th Cir. 2015) (holding that courts reviewing Section 2241 petitions may not “disregard a failure to exhaust and grant relief on the merits if the respondent properly asserts the defense”). “The crux of the exhaustion requirement is simply that the petitioner must have put the state court on notice that he intended to raise a federal claim.” Preston v. Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 457 (11th Cir. 2015). According to the Supreme Court, exhaustion requires that, “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
“In general, a habeas petitioner must bring suit against the warden of the facility in which he is detained.” Money, 2020 WL 1820660, at *21 (citing Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004)). “As the Supreme Court has explained, ‘[t]he federal habeas statute straightforwardly provides that the proper respondent to a habeas petition is “the person who has custody over [the petitioner]”’ and ‘[t]he consistent use of the definite
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article in reference to the custodian indicates that there is generally only one proper respondent to a given prisoner’s habeas petition.’” Id. (citing 28 U.S.C. § 2242).
III. DISCUSSION A. Plaintiffs’ Section 1983 Claim
Plaintiffs challenge their conditions of confinement at Metro West during this pandemic pursuant to Section 1983. They argue that Defendants are violating their constitutional rights by failing, at first instance, to require and then appropriately implement adequate safeguards to prevent and control the spread of COVID-19 throughout Metro West. Specifically, Plaintiffs contend that six different aspects of their confinement violate the Eighth Amendment: (1) lack of social distancing; (2) failure to provide adequate access to healthcare; (3) failure to provide sufficient hygiene supplies; (4) failure to institute screening protocols for those entering the facility; (5) failure to provide proper medical care for those who have COVID-19; and (6) failure to provide adequate information regarding COVID-19 to inmates.
Plaintiffs maintain that “[m]edically required social distancing is not possible with the current jail population at Metro West given its dormitory-style housing units.” (DE 85 at 1). And the doctors who inspected Metro West on April 18, 2020 pursuant to the Court’s order both agreed. The doctors concluded in the Report that “the high census of Metro West Detention Center in addition to the dormitory style housing units, makes it impossible to follow CDC guidance for social distancing measures, placing staff and inmates at risk for COVID-19 infection.” (DE 70-1 at 3). The Report also notes that “[a]lmost all of the units inspected (except medical housing) were too overcrowded to allow for adequate social distancing.” Id. at 2.
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B. Plaintiffs’ Evidence In support of their contention that Defendants are not taking adequate steps to ensure COVID-19 does not continue spreading throughout Metro West, Plaintiffs have submitted twenty-one declarations, many of which were “taken from detained individuals who largely do not know each other, live in different units of Metro West, and who over several weeks have detailed specific, consistent, and widespread ways in which CDC Guidelines are not being followed, putting them at serious risk” of contracting COVID-19. (DE 85 at 3). First, the Court notes that several of the declarations support the Report’s finding that social distancing—a benchmark that all medical experts agree is necessary to control the rapid spread of the virus8—is impossible to achieve given the current population at Metro West. Below is an overview of the common issues raised in multiple, if not all, of Plaintiffs’ declarations from current and former inmates, including many of the named Plaintiffs, as to circumstances surrounding social distancing in Metro West.
• Bunk beds/sleeping arrangements o “Our bunk beds are about 2 or 2.5 feet apart.” (DE 81-1 at 27). o “About a week ago, some guards came in and spread out the bunks to try to create more space in between them, but that did not work.
8 According to the CDC, “[l]imiting face-to-face contact with others is the best way to reduce the spread of coronavirus disease 2019 (COVID-19).” Social Distancing, Quarantine, and Isolation: Keep Your Distance to Slow the Spread, (Apr. 4, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/socialdistancing.html (“COVID-19 spreads mainly among people who are in close contact (within about 6 feet) for a prolonged period. Spread happens when an infected person coughs, sneezes, or talks, and droplets from their mouth or nose are launched into the air and land in the mouths or noses of people nearby. The droplets can also be inhaled into the lungs. Recent studies indicate that people who are infected but do not have symptoms likely also play a role in the spread of COVID-19.”).
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Most of our bunks are only two or three feet apart. I am about two feet from my bunkmate.” (DE 81-1 at 34). o “The bunk next to me is close enough that I can reach out and touch it.” (DE 81-1 at 50). • Bathrooms and showers o “It is also impossible to practice social distancing in the morning in the bathroom. This is because many people are trying to use the urinals at the same time. Many people are also trying to brush their teeth and wash their face at the same time.” (DE 81-1 at 12). o “The showers are only a couple feet across from the toilets. The sinks are just a few inches apart from each other. Certain times of the day, the bathroom gets very busy.” (DE 81-1 at 35). o “The toilets are just a foot apart from each other and are separated by a short piece of wood, a partition about five feet tall. There are no doors on the toilet stalls. The showers are directly across from the toilets, less than five feet away.” (DE 81-1 at 40). o “The bathroom will get very crowded, because we have 60 guys sharing one bathroom.” (DE 81-1 at 41). • Telephones o “It is also impossible to practice social distancing while using the telephones as the telephones are close together.” (DE 81-1 at 12). o “I still have to use a sock when I talk on the phone. I have no access to any kind of disinfectant to wipe down the phone, the remote, the
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water cooler, or anything else that is shared between inmates in the cell on a constant basis. The best I can do is take a paper towel, dip it in water, and wipe off high-touch areas.” (DE 81-1 at 15). o “Phones in the dorm are just a foot apart, maybe the length of three or four hands apart. Sometimes a lot of people are using phones at the same time, like late at night before bed.” (DE 81-1 at 27). • Daily headcount o “During count, we are all made to stand in front of the racks on our bunk beds. We are all standing only 2.5 or 3 feet apart from each other during count, and we stand shoulder-to-shoulder with our bunkmates.” (DE 81-1 at 27). o “Officers require us to participate in headcount three times a day. During count, we line up in front of our bunks shoulder to shoulder with each other.” (DE 81-1 at 60). • Clinic/medication distribution o “When we line up to get our medications each day, some nurses make us stand six feet apart in the line. But other nurses don’t enforce that, so the inmates will line up close together.” (DE 81-1 at 27). o “The guards take the inmates down to medical in groups of 8 or 10 people at a time. In the clinic, we are sitting in chairs while we wait to see the doctor, shoulder-to-shoulder.” (DE 81-1 at 56). o “When I’m in the clinic, I interact with people from other cells . . . there’s often six or more people down there at the same time from
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other cells.” (DE 81-1 at 61). • Food distribution
o “At mealtime, we line up to get our trays of food. We stand in line close together while we wait for the food to be ready. Some people eat at their bunks and other people eat at the tables. Mostly we are all within a few feet of each other while we eat.” (DE 81-1 at 34).
o “During meal times, we can eat anywhere. A lot of people eat at their bunk because the tables get crowded. You are literally on top of other people during meals.” (DE 81-1 at 41).
• Mandatory outdoor recreation o “When the guards line us up to go outside for rec, we are all close together against the wall while the guards pat us down. We are not even a foot apart from each other. And then we all walk out to the yard, through the hallway and down the stairs in the stairwell, all bunched together.” (DE 81-1 at 56). o “I am also very concerned because we are being forced to go to mandatory rec time with people who are in quarantined cells. We usually go to the yard with one other cell, which is separated from us only by a chain-link fence.” (DE 81-1 at 61). o “Corrections continues to do pat downs when we go to rec, and they aren’t changing gloves between people.” (DE 81-1 at 62).
• Inmate and staff movement between units o “I worked in the kitchen until recently. I was directed by jail staff to
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enter a quarantined unit to retrieve trays, and I refused.” (DE 81-1 at 19). o “A guy who was COVID-19 positive was in my cell, and I think I was exposed to the virus. On April 20, along with 6 other inmates, this inmate was moved out of his dorm in 2A3, tested for COVID-19, and brought into my cell before he had gotten his COVID-19 test results back. A day and a half later, late in the day on April 21, this inmate learned he was positive for COVID-19. The guards removed him from my dorm.” (DE 81-1 at 57). o “Trustees bring in food trays and commissary from outside the cell, and officers constantly travel in and out of the cell. The hallways are narrow, and we pass closely by people from other cells, within a couple of feet. There are also metal benches near the elevators that are packed with prisoners from different cells, often handcuffed to the bench for hours. When I am waiting to go down to the clinic in an elevator, I wait in that area.” (DE 81-1 at 61). Despite Defendants’ efforts, which are described below, these declarations by inmates across a variety of housing units at Metro West corroborate the Report’s conclusion that the social distancing required to curb the spread of the virus is simply not possible at Metro West without a dramatic, immediate reduction in the facility’s population. (DE 70-1 at 1) (recommending “an urgent reduction in the population in this facility and increased screening for COVID19 infection among the staff and inmates to mitigate the spread of this infection within the community”).
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Next, many of the declarations suggest that some of the measures Defendants are taking and that were ordered by the TRO are not being implemented in a way that furthers the stated goal of reducing the spread of COVID-19. As the Court in Mays remarked “establishing appropriate policies does not fully discharge the [Defendants’] constitutional obligations; a policy is only as good as its execution.” Mays v. Dart, No. 20-CV-2134, 2020 WL 1812381, at *9 (N.D. Ill. Apr. 9, 2020).
For example, Defendants say they provide all inmates and staff with masks and that these masks must be worn at all times. The evidence presented by Plaintiffs, however, suggests that adherence to this directive is problematic. (DE 81-1 at 12) (“Inmates receive masks about every seven days. However, some people have masks that break in two to three days.”); (DE 81-1 at 35) (“The masks are like disposable paper cloths and are probably supposed to be disposed of every day . . . The masks are soft and rip a lot, and they get really dirty.”). By the end of the week, the masks are “dirty,” “filthy” and “broken.” (DE 81-1 at 15) (“My mask is filthy after wearing it for more than a week non-stop, and it collects a lot of dust.”). According to the declarations, inmates are not always provided a new mask if their current mask breaks and may be chastised or threatened if they request a new one. (DE 81-1 at 15) (“I have asked officers for a new [mask], but my requests have been denied and the officer I asked got angry at me and told me I just need to take care of my mask because I’m not getting another one.”); (DE 81-1 at 19) (“The masks rip easily and people are having to repair the masks using the straps from other masks or pieces of the gloves used by trustees when passing out food.”); (DE 81-1 at 42) (“When the guards replaced our masks for the first time, I was in the shower and missed the opportunity to get a second mask. I asked my unit officer and the corporal
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multiple times for a new mask, because inmates are not allowed to go into the common area in our dorm or outside to recreation without a mask. Those guards told me that the captain instructed them not to pass out any extra masks.”); (DE 81-1 at 50) (“I was threatened by an officer that if my newest mask breaks, that I may receive a disciplinary write-up.”).
Defendants have also represented that inmates at Metro West have “continual” access to some cleaning supplies, including disinfectants, to clean their personal spaces or shared items like chairs, tables and remotes. None of the declarations Plaintiffs submitted suggest that is the case, and many of them directly contradict that assertion: “ I have not been given personal cleaning supplies. I have no way to disinfect my belongings or the high-touch surfaces I use in the dorm, like the phones and the water cooler.” (DE 81-1 at 6); “We have not been given hand sanitizer. We also have not been given cleaning materials to clean our own area or belongings.” (DE 81-1 at 35); “Only the trustees are given access to cleaning materials and disinfectants. If you wanted to take the initiative to clean your own personal area, you could not do that.” (DE 81-1 at 42); “We are not provided with any disinfectant to clean high-touch areas between uses. In the ‘day room,’ where the tables and TVs are, we still share phones that are not cleaned between uses. The only time that cleaning solution is available is during shift change, and even then, it is only available to trustees, not to the rest of us. We cannot clean the shower between uses, and still have no disinfecting supplies available to us to clean the water cooler.” (DE 81-1 at 60).
Finally, many of the declarations contend that inmates are not being provided with the expedient medical treatment that reducing the spread of the virus demands. (DE 81-
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1 at 39) (“I have put in about ten medical requests since I have been incarcerated to see
a nurse. It takes a few days for the medical clinic to respond to a medical request.”); (DE
81-1 at 45) (“I put in about three requests for medical attention through sick calls while I
was incarcerated. It would take about three days to get medical attention after placing the
sick call.”).
As to the availability of state court procedures for securing inmates’ release in light
of the unprecedented pandemic society is facing, Plaintiffs submit declarations from three
different criminal defense attorneys who represent three of the named Plaintiffs in their
underlying criminal cases. These lawyers testified that they have been unable to
successfully petition for release on bond for their clients, having had their motions
summarily denied without the opportunity for a hearing or to present additional evidence
to the state court.9 (DE 81-6; DE 81-7; DE 81-8).
C. Defendants’ Evidence
Defendants, relying on numerous declarations from Metro West officials, argue that
9 Frank E. Gil represents named Plaintiff Ronniel Martinez-Flores in his state court criminal case. Mr. Gil testified that he has “filed three motions to modify conditions of bond; on February 3, 2020, February 21, 2020, and April 2, 2020 that were ordered for Mr. Martinez-Flores, specifically requesting that the House Arrest condition be removed and his monetary bond modified. This would allow Mr. Martinez-Flores’s family to post bond to secure his release.” (DE 81-8 at 2). He further stated each of his motions was “denied . . . [t]he last being summarily denied without a hearing, apparently due to procedures adopted by the Eleventh Judicial Circuit Court of Florida in light of the COVID-19 pandemic.” Id. Carlos Fleites represents named Plaintiff Alen Blanco in his state court criminal case. Mr. Fleites testified that he filed a “motion to set bond on March 16, 2020 in light of the COVID-19 pandemic, due to Mr. Blanco’s increased susceptibility to the virus and the hardships that my client’s pretrial incarceration places on him and his family.” (DE 81-7 at 2). The motion was “denied without the opportunity to present evidence on the record.” Id. Theodore Mastos represents named Plaintiff Deondre Willis in his state court criminal cases. He testified that he has “filed multiple release motions including an ‘Emergency Motion for Release from Custody’ on April 7, 2020 in light of the COVID-19 pandemic. Because of the coronavirus pandemic and the conditions in Metro West Detention Center, my client and his family are deeply concerned about his wellbeing.” (DE 81-6 at 2). According to Mr. Mastos, each of his motions was “summarily denied without a hearing.” Id.
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the measures they have implemented in response to the COVID-19 pandemic are more than sufficient to safeguard the health and safety of the inmates and staff at Metro West. Defendants’ response in opposition contains numerous declarations from Metro West officials attesting to the measures implemented in the facility.10 These measures include, among other things (1) encouraging social distancing by all inmates and staff throughout Metro West; (2) requiring staff and inmates to wear face masks at all times (other than when sleeping); (3) conducting screening for all staff entering the facility; (4) conducting daily temperature screenings for all inmates; (5) suspending all outside visitation; and (6) providing disinfecting and hygiene supplies to all inmates.
In support of their arguments, Defendants submitted affidavits from Director Daniel Junior; Captain Safani Summons; Director Edith Wright, RN; Dr. Reggie Egins, MD; Dr. Aileen Marty, MD, FCAP; Corporals Bridgett Johnsons and Nicole Pieze; and Officers Patricia Delancy, Jasmine Mayo, and Beatrice Almonor. The various affidavits and accompanying exhibits describe Defendants’ response to COVID-19 at Metro West as follows.
• Provision of antibacterial and hygiene materials o “Inmates are provided bars of body soap for personal use and additional soap is available in each housing unit for replacement. Inmates are not limited in the number of bars of soap they can request; soap is free to the inmates.” (DE 65-1 at 6). o “Hand sanitizer dispensers have been installed at the ingress and egress area of MWDC and staff are permitted to bring personal hand
10 As noted elsewhere in this Order, many of these measures were implemented after the lawsuit was filed. 20

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sanitizers for use throughout their shift.” (DE 65-1 at 6). o “There are operating washing/dryer machines in each unit . . . with the
laundry detergent supplied inside the housing unit and provided through an automatic dispenser that is refilled, at a minimum, every two weeks and more often if needed.” (DE 65-1 at 6). • Provision of cleaning materials o “Each housing unit is supplied with sufficient cleaning materials for the bathroom and general areas. Bathroom and showers are cleaned twice daily with industrial grade disinfectants by inmate workers assigned to each housing unit. Cleaning supplies are located in the housing units during all three shifts, providing inmates continual access to these supplies. All inmates have access to cleaning supplies (not just inmate workers) and can use them on a more frequent basis, if desired. These cleaning supplies, which are industrial grade and are peroxide/bleach based, are refreshed on each shift.” (DE 65-1 at 6-7). o “MWDC utilizes 6 utility fogging machines, which were purchased in mid-March, 2020, to sanitize housing units one time a week. This is done in addition to the general cleaning that is done twice a week by MDCR staff and the cleanings that are done on each shift; there are three shifts every 24 hour period. High-touch areas that are cleaned on each shift include: dayrooms, tables, chairs, sinks, telephones, and door handles.” (DE 65-1 at 7).
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• Personal protective equipment o “As of April 3, 2020, personal protective masks were provided to all inmates and are currently mandated for inmate use.” (DE 65-1 at 7). o “MDCR staff have all been provided with N95 masks and gloves for use while on duty.” (DE 65-5 at 2). o “[A]ll MDCR staff are required to wear their issued personal protective masks throughout their entire shift.” (DE 65-1 at 7).
• Bunk beds/sleeping arrangements o “To allow for social distancing, bunk beds are staggered.” (DE 65-2 at 4). o “Where inmates are sleeping in bunk beds, they are instructed to sleep in staggered formation, head to toe, which creates social distancing of more than six feet between heads.” (DE 65-2 at 4).
• Screening and tracking o “On March 30, 2020, MDCR established the COVID-19 Incident Command Center and a Response Line.” (DE 65-1 at 16). o “On April 11, 2020, CHS began taking temperatures of inmates with chronic conditions or over the age of 60. That process has now been expanded. . . . Commencing today, all inmates, regardless of medical history, will receive daily temperature checks . . . .” (DE 65-1 at 1920). o “Any inmate showing symptoms of COVID-19 is removed from his housing unit and placed in the medical isolation unit at TGK, where
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he is tended to medically and his temperature is taken twice daily. If serious symptoms develop, they are taken to a hospital.” (DE 65-1 at 20). o “As of April 10, 2020, CHS now has the capability to collect swab specimens for COVID-19 onsite at all facilities. If an inmate tests positive, he will be evaluated and treated until he has not had a fever for at least seventy-two (72) hours (and without relying on fever reducer medication), his symptoms have all subsided, and a minimum of seven (7) days has passed since the first symptoms appeared. If an inmate tests negative, he will be monitored until his symptoms resolve and then he will be sent back to MWDC.” (DE 65-1 at 20). o “If there is a case of suspected COVID-19 in a housing unit at MWDC, the inmate is removed and placed in medical isolation and the entire housing unit will begin a 14-day quarantine period, be tested for COVID-19, and monitored daily by CHS medical staff.” (DE 65-1 at 20). • Access to information o “MDCR conducted meetings with inmate unit/cell representatives from MWDC inmate housing units on March 18, 2020 to discuss COVID-19 related concerns. Inmate cell representatives were provided information about COVID-19 including symptomology, importance of handwashing and social distancing.” (DE 65-1 at 13). o “Posters have been posted in all housing units in English, Creole and
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Spanish that encourage social distancing and proper hygiene. Posters have pictures for those with literacy issues. Information about COVID-19 has also been provided directly to inmates verbally by MDCR and CHS staff.” (DE 65-1 at 14). • Mandatory outdoor recreation o “Mindful of social distancing, and to help curb the possible spread of COVID-19, all inmates from a particular housing unit go to the recreation area together, and no other housing units are allowed to visit that area at the same time.” (DE 65-1 at 10). o “After the recreation time has elapsed, areas that are touched by inmates (e.g., pull-up bar) are cleaned and wiped down with EPAapproved disinfectant solutions by MDCR staff before another housing unit begins its recreational time.” (DE 65-1 at 10). o “Effective April 16, 2020, . . . recreational activities that require frequent personal or shared contact between inmates (e.g., basketball) have been discontinued until further notice.” (DE 65-1 at 22). • Inmate and staff movement o “All individuals entering MWDC, including inmates, correctional officers, civilian employees, vendors and medical personnel, are screened, including temperature checks, prior to entering the Facility. Masks are provided to the arrestees at the time of intake.” (DE 65-1 at 9).
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o “Staff are screened prior to beginning their shift and are identified with bright green wristbands to indicate they have been successfully screened. Anyone not feeling well or exhibiting a fever or other symptoms is prohibited from entering detention facilities and such individuals are directed to seek medical attention.” (DE 65-1 at 9).
o “[I]nmate movement has been limited since March 12, 2020. The only exception (other than when immediate medical care is needed) is for inmate recreation time . . .” (DE 65-1 at 9-10).
o “Inmates are required to wear a mask at virtually all times, unless sleeping or quietly sitting on their bunks.” (DE 65-2 at 3).
o “Effective April 16, 2020, . . . inmate meals will be staggered, or inmates may be permitted to eat on their bunks or in their rooms to eliminate congregating during meal time.” (DE 65-1 at 22).
On April 27, 2020, Defendants submitted supplemental affidavits for Director Daniel Junior, Director Edith Wright, RN, and Dr. Reggie Egins, MD to provide an update to the information initially provided. According to the supplemental materials, the process of reducing the inmate population remains ongoing and Metro West is operating more than 30% below its inmate capacity. (DE 92-2 at 5). Director Junior maintains that Defendants have voluntarily exceeded the measures imposed by the Court’s TRO, “including but not limited to, testing of asymptomatic inmates and staff who have been identified as a potential close contact of a positive case, daily monitoring and temperature checks of all inmates in the housing units, quarantining of new arrestees, and the purchase of additional air filtration technology.” (Id. at 3). Additionally, “[a]s of April 20, 2020, all inmates are
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issued two (2) masks per week, and all inmates who have tested positive for COVID-19 are issued new masks daily.” (Id. at 4). Notwithstanding the Defendants’ opposition to the TRO, Director Junior states that “MDCR will not discontinue any of the requirements in the TRO in the absence of a court order.” (Id. at 3).
During the second day of the telephonic preliminary injunction hearing, Defendants called state circuit court administrative Judge Nushin G. Sayfie as a witness to testify regarding the procedures in the criminal divisions of the Eleventh Judicial Circuit Court of Florida surrounding COVID-19.11 Judge Sayfie oversees the felony criminal court divisions, which includes 25 judges, 19 regular divisions and various special divisions, including the bond hearing division. Judge Sayfie testified that as early as March 9, 2020, she began mobilizing the judges in her divisions to prepare for the rapidly changing situation brought about by COVID-19. She also recounted that remote courtrooms have been established to continue holding virtual hearings, that orders are now being signed electronically, and that motions may be submitted via email to the state court criminal judges.
Judge Sayfie testified that judges in the criminal divisions have been reviewing requests for release and entering release orders continuously and immediately since the onset of COVID-19. Judge Sayfie acknowledged that while there is no way to numerically catalog which release orders are predicated on COVID-19 factors and which are being entered in the normal course of business, she believed that a significant number of releas e orders issued in the past month are related to the pandemic. Based on her testimony and
11 The Court heard Judge Sayfie’s testimony over Plaintiffs’ objection on the basis that she had not been disclosed as a witness and Defendants had not given them any notice that she might be testifying.
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that of Director Junior, it is clear that in the past six weeks the inmate population at Metro
West has been reduced from its “normal” level.12
But whether this reduction is sufficient to protect Plaintiffs’ constitutional rights
remains a question before this Court. Hopefully, it can be answered by the continued
adherence to the CDC guidelines set forth in the Court’s order and the reports issued by
Metro West pursuant to that order.13
D. Defendants’ Legal Arguments
First, the Court recognizes Defendants’ ongoing efforts to respond to an
unprecedented pandemic that has created uncertainty and fear for everyone. As many
other courts have recently noted when addressing the complex legal issues arising from
this emergency situation, “operating and administering a very large physical facility . . is
an extraordinarily difficult task.” Mays, 2020 WL 1812381, at *1 (N.D. Ill. Apr. 9, 2020).
12 In their Response (DE 67) Defendants also represented that as a result of the joint effort between the SAO and PD’s Offices, MDCR has released over 624 inmates to either house arrest, pretrial, or early sentence release. The Court requested that Defendants provide a detailed description of this “joint effort.” Defendants provided a sample of the orders it receives on a daily basis authorizing release. (DE 90-3). The Court reviewed the 105 orders and found the following. 12 of the orders were for the transport of defendants to Central Intake (5), Mercy Hospital-Behavioral Unit (3), Caroline Housing (1), New Hope CORPS (1), Here’s Help (1), and Miami Behavioral Center (Crisis) (1). Many specified that upon completion of assessments and recommendations, defendants are to be returned to the custody of Miami Dade Corrections and Rehabilitation Department. 31 of the defendants in the sample provided were granted some form of home confinement. 27 of the defendants were released on their own recognizance or received some form of bond or bond modification (of these 27, 9 related to quashed fugitive warrants, like those that Judge Sayfie mentioned in her testimony). 8 of the defendants were released into pretrial services. At least 3 defendants had their sentences mitigated/commuted. Finally, various orders within the sample were unrelated to the release of inmates, e.g., requesting defendant be held in protective custody. Indeed, one order directed the return of a defendant from Mercy Hospital Behavioral Unit to the Department of Corrections. Although only 4 of the orders addressed release in light of COVID-19, the Court has now heard from Judge Sayfie and credits her assessment that many of these orders are a result of the state court’s “hyper focus” on release because of the health risk presented at the jail. The Court also makes this finding based on the 2 additional administrative orders Defendants submitted on April 27, 2020, prior to Judge Sayfie’s testimony. (DE 94). 13 Although Defendants stated several times in their briefing and during the preliminary injunction hearing that they would already have taken the measures contained in the Court’s TRO of their own volition, the Court notes that the information regarding positive COVID-19 cases was not made available to the public until the Court ordered that it be provided.
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“Operating the Jail, even under normal circumstances, is a very challenging task that
occupies a large, full-time staff of policymakers, subject matter experts, and front-line
correctional officers, medical and mental health workers, counselors, and others.” Id. And
we are not, of course, experiencing “normal circumstances.” Id. “Fashioning a public
policy and public health response to the coronavirus pandemic has challenged
government officials across our country and throughout the world, who are facing a crisis
unlike any we have faced for decades, and perhaps generations.” Id. “The task is no less
difficult, and no less unfamiliar, for administrators of jails.” Id. But the fact that Metro West,
and society as a whole, are facing extraordinarily difficult circumstances “does not mean,
however, that constitutional protections fall by the wayside.” Id. at 2.
1. Exhaustion under the PLRA
The Court first addresses Defendants’ argument that Plaintiffs’ 1983 claim must be
dismissed for failure to exhaust administrative remedies.14 Although this contention will
be fully considered after Defendants’ motion to dismiss (DE 66) is ripe, the Court
addresses it here only to note that it is not an issue to be decided at the preliminary
injunction stage.15 Rather, the Supreme Court has held that under the PLRA, courts must
14 In addition to their response in opposition to Plaintiffs’ emergency motion for a preliminary injunction, Defendants also filed a motion to dismiss Count I (Plaintiffs’ 1983 claim) for failure to exhaust administrative remedies on April 21, 2020, which they purported to incorporate fully into their Response. (DE 66). Although the Parties at the hearing on April 27, 2020, expressed confusion as to whether this motion would be taken up by the Court simultaneously with the preliminary injunction motion, the Court clarified that it is not yet addressing the arguments contained in the motion to dismiss. First, Defendants have not properly raised the issues in the motion to dismiss with the Court by attempting to incorporate their entire motion in their Response. Moreover, although Plaintiffs characterized their reply brief as a “consolidated reply” that addressed, among other things, “arguments raised in Defendants’ Motion to Dismiss,” during the hearing Plaintiffs’ counsel expressed an expectation that they would file a formal response to the motion to dismiss. That response is due May 5, 2020 and Defendants’ reply is due May 12, 2020. 15 The exhaustion provision of the Prison Litigation Reform Act of 1995 (“PLRA”) states: “No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available
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“regard exhaustion as an affirmative defense,” not a pleading requirement. Jones v. Bock, 549 U.S. 199, 212 (2007) (“Federal Rule of Civil Procedure 8(a) requires simply a ‘short and plain statement of the claim’ in a complaint, while Rule 8(c) identifies a nonexhaustive list of affirmative defenses that must be pleaded in response. The PLRA itself is not a source of a prisoner’s claim; claims covered by the PLRA are typically brought under 42 U.S.C. § 1983, which does not require exhaustion at all . . . This is strong evidence that the usual practice should be followed, and the usual practice under the Federal Rules is to regard exhaustion as an affirmative defense.”) (citing Patsy v. Board of Regents of Fla., 457 U.S. 496, 516 (1982)).
Further, Defendants acknowledge that a person “need only exhaust those remedies that are ‘available’ to him.” (DE 66 at 2) (quoting Ross v. Blake, 136 S. Ct. 1850, 1856 (2016)). And there is both a factual dispute regarding whether and to what extent grievance forms were available to inmates to voice their concerns about COVID-19 at Metro West16 and a legal dispute regarding whether this type of administrative exhaustion may be considered “unavailable” because of exigent circumstances. See Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1173 (7th Cir. 2010) (“If a prisoner has been placed in imminent danger of serious physical injury by an act that violates his constitutional rights, administrative remedies that offer no possible relief in time to prevent the imminent danger from becoming an actual harm can’t be thought available.”). But, as noted above, the
are exhausted.” 42 U.S.C. § 1997e(a). 16 While Defendants contend that grievance forms have continually been made available to inmates at Metro West, several named Plaintiffs state in their declarations that they were unable to obtain grievance forms when requested. During the telephonic preliminary injunction hearing on April 27, 2020, named Plaintiff Alen Blanco testified that he was not given a grievance form until April 2, 2020, even though he requested forms from officers at Metro West on March 31 and April 1, 2020.
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Court will not resolve this factual dispute at this stage because exhaustion in the 1983 context is an affirmative defense.17 See Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008) (“Because exhaustion of administrative remedies is a matter in abatement and not generally an adjudication on the merits, an exhaustion defense should be raised in a motion to dismiss.”) (internal quotations omitted).
2. Mootness and Voluntary Cessation Exception Defendants cite the Eleventh Circuit case Keohane for the proposition that Plaintiffs ’ claim for injunctive relief is moot because “MDCR has already implemented, and has consistently maintained in place, all of the measures ordered by this Court in its TRO.” (DE 67 at 27); Keohane v. Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257, 1266 (11th Cir. 2020). Keohane, however, is readily distinguished from the present case because: (1) the district court issued a permanent injunction after a bench trial; (2) Keohane involved the formal repeal of an unambiguous policy; and (3) the medical community and all parties agreed on the necessary course of treatment for plaintiff’s medical needs. It is an undisputed fact in the record that all the medical experts agree that a reduction in the prison population is necessary to contain the spread of COVID-19. The Keohane court explained that, in determining whether a plaintiff has met its burden to establish that a challenge is not moot, courts must look to “three broad factors”:
17 During the telephonic preliminary injunction hearing on April 27, 2020, the Parties also discussed a recent case decided by the Fifth Circuit, Valentine v. Collier, No. 20-20207 (5th Cir. Apr. 22, 2020). There, the Fifth Circuit stayed an order granting injunctive relief to a class of petitioners on the basis that the district court’s order was not “narrowly drawn or the least intrusive means available,” would be too administratively burdensome on the Texas Department of Criminal Justice and inappropriately enjoined the state to follow state law. Id. at 14 (internal quotations omitted). This case is inapposite because, in addition to the different factual record and procedural posture, the Fifth Circuit’s opinion relied on a discussion of exhaustion under the PLRA that does not appear to be consonant with Jones. As discussed above, the Supreme Court has held that exhaustion under the PLRA is an affirmative defense, not a pleading requirement. Jones, 549 U.S. at 212.
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(1) “whether the change in conduct resulted from substantial deliberation or is merely an attempt to manipulate our jurisdiction”; (2) “whether the government’s decision to terminate the challenged conduct was unambiguous”; and (3) “whether the government has consistently maintained its commitment to the new policy.” Keohane, 952 F.3d at 1268 (citing Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs, 868 F.3d 1248, 1256 (11th Cir. 2017) (en banc)) (internal quotations omitted).
Here, after weighing these three factors, the Court finds that, even assuming Defendants are in full compliance with the Court’s TRO (which is highly disputed), the voluntary cessation exception to mootness would nonetheless apply because: (1) the measures taken by Defendants to curb the spread of COVID-19 at Metro West appear to have been initiated, to some degree, by this litigation given the timing of their implementation; (2) there is no formal policy indicating that the decision to implement these measures and terminate Defendants’ previous conduct was “unambiguous” and permanent; and (3) the pace at which this case and the conditions at Metro West have evolved have not provided an opportunity for Defendants to demonstrate whether they are committed to maintaining these new, informal policies and procedures—meaning the Court cannot weigh the third factor one way or another. See Mays, No. 20-CV-2134 (N.D. Ill. Apr. 27, 2020) (DE 73 at 58-59) (“Although the Sheriff appears to have complied with the TRO, the Court cannot say that the constitutional violations the Court sought to address will not recur absent an extension of the TRO’s requirements. The Sheriff’s actions to develop policies on sanitation and coronavirus testing, distribute soap and cleaning supplies, and distribute facemasks to detained persons who are quarantined—at least those done after the April 9 TRO—cannot be said to have been undertaken entirely
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voluntarily.”); see also United Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l, 563 F.3d 257, 275 (7th Cir. 2009) (“The court may consider how easily former practices might be resumed at any time in determining the appropriateness of injunctive relief.”).
3. Requirements under Monell Defendants also contend Plaintiffs are not entitled to a preliminary injunction because they have not shown that the County “has a custom or practice of permitting the constitutional violation” and have not “identif[ied] a final policymaker,” as required to prevail on a 1983 claim under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). (DE 67 at 2425). A plaintiff seeking to hold a municipality liable for a constitutional violation “must identify either (1) an officially promulgated county policy or (2) an unofficial custom or practice of the county shown through the repeated acts of a final policymaker for the county.” Grech, 335 F.3d at 1329. At the preliminary injunction stage, however, Plaintiffs are not required to “prove a custom” or “identify a final policymaker.”18 See, e.g., Groden v. City of Dallas, 826 F.3d 280, 283 n.3 (5th Cir. 2016) (noting that “no circuit has held that plaintiffs must, as a pleading requirement, identify the policymaker”). Moreover, the Eleventh Circuit has found that “a municipality can be held liable ‘on the basis of ratification when a subordinate public official makes an unconstitutional decision and when that decision is then adopted by someone who does have final policymaking authority.’” Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th Cir. 2016) (quoting Matthews v. Columbia Cty., 294 F.3d 1294, 1297 (11th Cir. 2002). “So not all
18 Similarly premature is Defendants’ contention that Plaintiffs have failed to “provide evidence of a single constitutional right that the County has actually been held to have violated or admitted to have violated.” (DE 67 at 25). The Court fails to understand how the County could be “held to have violated” any of Plaintiffs’ constitutional rights when this matter is at the preliminary injunction stage.
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theories of municipal liability under § 1983 require (or depend on) a single final policymaker.” Id. The Court in Hoefling went on to hold that “identifying and proving that a final policymaker acted on behalf of a municipality is ‘an evidentiary standard, and not a pleading requirement.’” Hoefling, 811 F.3d at 1280 (“Although Mr. Hoefling may ultimately have to identify (and provide proof concerning) a single final policymaker in order to survive summary judgment or prevail at trial . . . we do not think that he had to name that person in his complaint in order to survive a Rule 12(b)(6) motion. All he needed to do was allege a policy, practice, or custom of the City.”) (quoting Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510 (2002)).
Simply put, Defendants’ assertion that Plaintiffs must “prove” every element of their 1983 claim under the standards in Monell before they are entitled to injunctive relief is misplaced. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (“The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held. Given this limited purpose, and given the haste that is often necessary if those positions are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits. A party thus is not required to prove his case in full at a preliminary-injunction hearing.”). And as to the constitutional violation prong of Monell, Plaintiffs have demonstrated a likelihood of success as to their Eighth Amendment deliberate indifference claim, as discussed below.
4. Preliminary Injunction as to Plaintiffs’ 1983 Claim It is clear that there remain several factual disputes regarding the extent to which Defendants’ stated policies to protect inmates and staff from COVID-19 are being
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implemented and enforced. And where, as here, the medical reality is rapidly evolving
and lives are at stake, accurate information about the implementation of those stated
policies is critical. See Mays, No. 20-CV-2134 (N.D. Ill. Apr. 27, 2020) (DE 73 at 62)
(“[F]rom a constitutional-law standpoint, it is difficult to believe that ‘do what you can, but
if you can’t, so be it’ satisfies a jailer’s constitutional obligation to . . . mitigate known risks
to the life and health of people in his custody who are detained awaiting determination of
their guilt or innocence.”). What is not in dispute is the medical evidence and testimony
from numerous doctors that other measures—absent social distancing—are not alone
sufficient to stop the spread of the virus.19 Also unrebutted is the fact that over the brief
course of this litigation, which began April 5, 2020, the rate of inmate infections has
increased dramatically—inmate infections at Metro West have increased by approximately
994% so far this month.
19 The declarations from doctors submitted by Plaintiffs are uniform in their recommendation that a reduction in population is necessary to reduce the spread of COVID-19 and allow for adequate social distancing measures. See (DE 80-33 at 3) (“Upon reviewing the April 18, 2020 Inspection Report and noting the upward tick of positive cases within the jail, I must concur with the report’s overarching recommendation to reduce the population of the jail to prevent further spread of the virus. It is clear from this report that though the officials and staff of the Metro West Detention Center seem to be attempting t o comply with the conditions in the temporary restraining order, the number of people in each cell in this jail environment make it impossible to provide the adequate distance and protections necessary to prevent an outbreak at Metro West.”); (DE 1-5 at 8) (“Reducing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for those within those facilities and for the community at large.”); (DE 1-9 at 3) (“For detainees who are at high risk of serious illness or death should they contract the COVID-19 virus, release from detention is a critically important way to meaningfully mitigate that risk. Additionally, the release of detainees who present a low risk of harm to the community is also an important miti gation strategy as it reduces the total number of detainees in a facility.”); (DE 1-10 at 15) (“Even with the best-laid plans to address the spread of Coronavirus in detention facilities, the release of high-risk individuals is a key part of a risk mitigation strategy. In my professional opinion, the only viable public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety, especially given the lack of an effective vaccine for prevention or effective treatment for the disease at this stage. My professional opinion is consistent with the view of the medical profession as a whole that there are no conditions of confinement in carceral settings that can adequately manage the serious risk of harm for highrisk individuals during the COVID-19 pandemic.”); (DE 1-12 at 10) (“Reducing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for [those] who . . . are housed and work within those facilities and for the community at large.”).
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Thus, even if the Court were to credit all of Defendants’ evidence at this stage and discount the factual disputes about the implementation of Defendants’ policies and procedures, Plaintiffs have nonetheless made a clear showing as to each of the four factors required for injunctive relief on their Eighth Amendment claim. See Helling v. McKinney, 509 U.S. 25, 33 (1993) (“We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate’s current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illnes s and needless suffering the next week or month or year.”); see also Mays, (DE 73 at 5859) (entering a preliminary injunction against the Cook County Sheriff and noting that “the ongoing risk to detained persons at the Jail, confirmed by increases in the number who have tested positive for coronavirus and the death of six detained persons from coronavirus disease as of April 23, is the backdrop against which the Court must view the Sheriff’s conduct”). Because they have demonstrated that the lack of social distancing— which has not been and cannot be achieved absent an additional reduction in Metro West’s population or some other measure to achieve meaningful social distancing—and the issues attendant to effectively implementing CDC standards present an immediate, ongoing risk of harm to Plaintiffs, they have met their burden. See, e.g., FHR TB, LLC v. TB Isle Resort, LP, 865 F. Supp. 2d 1172, 1192 (S.D. Fla. 2011) (“When the moving party is seeking a mandatory injunction, it faces ‘a particularly heavy burden of persuasion’ . . . Moreover, if the requested injunction is mandatory, then [the movant’s] burden is elevated to making a ‘clear’ showing on each of the four elements (instead of proceeding under a preponderance of the evidence standard).”). The Court discusses the four factors necessary for the entry of a preliminary injunction below.
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i. Plaintiffs have shown a substantial likelihood of success on the merits of their Section 1983 claim
“Controlling precedent is clear that injunctive relief may not be granted unless the plaintiff establishes the substantial likelihood of success criterion.” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1226 (11th Cir. 2005). With respect to their first claim, the Emergency Motion seeks injunctive relief for violations of Plaintiffs’ rights under the Eighth and Fourteenth Amendments.20 The crux of the issue before the Court is whether “the conditions and procedures at Metro West to address COVID-19 show a deliberate indifference to the risk of serious and immediate harm to Plaintiffs.” (DE 67 at 13).
“The Eighth Amendment can give rise to claims challenging specific conditions of confinement, the excessive use of force, and the deliberate indifference to a prisoner’s medical needs.” Thomas v. Bryant, 614 F.3d 1288, 1303-04 (11th Cir. 2010); see also Fernandez v. United States, 941 F.2d 1488, 1494 (11th Cir. 1991) (“To establish a valid eighth amendment claim, ‘a prisoner must allege acts or omissions sufficiently harmful to evidence [the] deliberate indifference [of prison officials] to [his] serious medical needs.’”) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Kosilek v. Spencer, 774 F.3d 63, 91 (1st Cir. 2014) (en banc) (“The subjective element of an Eighth Amendment claim for injunctive relief requires not only that [the plaintiff] show that the treatment she received was constitutionally inadequate, but also that the DOC was—and continues to be— deliberately indifferent to her serious risk of harm.”). “The Fourteenth Amendment protects
20 The Court agrees with Defendants that “[b]ecause Plaintiffs are pretrial detainees, their claims technically arise under the Fourteenth Amendment, but the same Eighth Amendment caselaw and scrutiny applies.” (DE 67 at 11, n.8) (citing Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306 (11th Cir. 2009)).
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pretrial detainees, who are entitled to a constitutional presumption of innocence, from being held in conditions that amount to punishment.” Mays, No. 2020 WL 1812381, at *7 (citing Miranda v. County of Lake, 900 F.3d 335, 350-51 (7th Cir. 2018)).
Here, even considering the measures Defendants have adopted—and setting aside the numerous factual disputes as to the consistency and efficacy of those measures—the record nonetheless can be seen to demonstrate deliberate indifference to a serious risk of harm to Plaintiffs. See Helling, 509 U.S. at 33, 35 (holding, in the context of an Eighth Amendment deliberate indifference claim, that “exposure of inmates to a serious, communicable disease” that poses a risk of future harm is a deprivation sufficiently serious to invoke constitutional protections). Defendants’ contention that the actions they have taken to date are sufficient is belied by the exponential rate of infection since this case commenced: as of April 5, 2020, when Plaintiffs filed their emergency motion, there were no publicly known cases of inmates with COVID-19 within Metro West; as of April 28, 2020, 163 inmates have tested positive. And given the prevalence of asymptomatic hosts of the virus, the actual number is likely significantly higher.21 Moreover, the evidence adduced in the case shows that inmates at Metro West are not able to achieve meaningful social distancing and that the experts agree social distancing is a critical step in preventing or flattening the rate of contagion.
Several of the affidavits submitted by Plaintiffs from either current or recent Metro
21 Apoorva Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. TIMES (Mar. 31, 2020, updated Apr. 20, 2020), https://www.nytimes.com/2020/03/31/health/coronavirus-asymptomatictransmission.html (“As many as 25 percent of people infected with the new coronavirus may not show symptoms, the director of the Centers for Disease Control and Prevention warns [and] . . . the high level of symptom-free cases is leading the C.D.C. to consider broadening its guidelines on who should wear masks.”).
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West inmates indicate that social distancing is either not possible (such as when inmates are lying on their bunks 2-3 feet away from another bunk; when inmates are on the phones, which are stationary and one or two feet apart; when inmates are in the bathroom because the toilets and showers are all generally less than 6 feet apart; or when dozens of inmates are attempting to view one television) or is not uniformly enforced (such as when inmates line up to receive food and eat together in their unit; when inmates line up for headcount; when inmates line up outside the clinic to receive medication; and when inmates participate in mandatory outdoor recreation once a week).
Thus, Plaintiffs have met both the subjective and objective components of the Eighth Amendment’s deliberate indifference analysis.22 See Wilson v. Williams, No. 20cv-794 (N.D. Ohio Apr. 22, 2020) (DE 22 at 16) (“Petitioners obviously satisfy this [objective] component. At this moment a deadly virus is spreading amongst Elkton’s population and staff. For infected inmates, the virus can lead to pneumonia. In the worse pneumonia cases, COVID-19 victims suffer diminishing oxygen absorption, with resulting organ failure leading to death. Victims choke to death. While not every inmate who contracts the virus will die, the subclass members are at a much greater risk of doing so. They have a very serious medical need to be protected from the virus.”).
The court in Wilson found that Plaintiffs had satisfied the subjective component of
22 Although “Plaintiffs preserve the argument that the subjective component of the standard is not required for presumptively innocent pretrial detainees after Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473-74 (2015) (requiring pretrial detainees need only show the objective prong of the ‘deliberate indifference’ test in excessive force context),” they acknowledge that “the Eleventh Circuit’s decision in Dang ex rel. Dang v. Sheriff, Seminole Cty., 871 F.3d 1272, 1279 n.2 (11th Cir. 2017) (holding that pretrial detainee still must show the officer’s subjective knowledge of a risk of harm in cases involving a claim of inadequate medical treatment), created a circuit split.” (DE 85 at 17, n.19). The Court need not resolve the issue here because it finds that Plaintiffs have met both the subjective and objective components of the analysis.
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their Eighth Amendment claim at the preliminary injunction stage because, like here, the defendant has “failed to separate its inmates at least six feet apart, despite clear CDC guidance for some time that such measures are necessary to stop the spread and save lives.” Wilson, (DE 22 at 16); see also Farmer v. Brennan, 511 U.S. 825, 846 n.9 (1994) (“If, for example, the evidence before a district court establishes that an inmate faces an objectively intolerable risk of serious injury, the defendants could not plausibly persist in claiming lack of awareness . . . ”); Basank v. Decker, No. 20 CIV. 2518, 2020 WL 1953847, at *11 (S.D.N.Y. Apr. 23, 2020) (noting that “confining vulnerable individuals without enforcement of requisite social distancing and without specific measures to protect their delicate health poses an unreasonable risk of serious damage to their future health and demonstrates deliberate indifference”) (internal quotation marks, citation, and alternation omitted); Valenzuela Arias v. Decker, 2020 WL 1847986, at *7 (S.D.N.Y. Apr. 10, 2020) (“Petitioners have established that Respondents have left in place conditions of confinement that make COVID-19 an unreasonable risk of serious damage to their health . . . conditions in the Essex County Jail plainly do not allow for the social distancing measures recommended by the CDC—most obviously, maintaining at least six feet of distance from other persons at all times. . . To the contrary, Respondents conceded at oral argument that detainees sleep in bunk beds, necessarily putting them within six feet of one another for sustained periods of time.”); Ibrahim Fofana v. Albence, 2020 WL 1873307, at *8 (E.D. Mich. Apr. 15, 2020) (“The detainees eat 4 to 6 people per table. While Monroe County Jail has ceased accepting new detainees and is operating at half capacity, roughly 48 detainees are confined to one housing unit. This violates recommended guidelines to socially distance with at least six feet distance between people
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and for no more than ten people to gather in one space.”); Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989) (“Failure to respond to a known medical problem can also constitute deliberate indifference.”); Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004) (“[T]he continuing disregard of Brown’s HIV and hepatitis constitutes deliberate indifference.”).
Moreover, despite Defendants’ assurances, the record does not unequivocally demonstrate successful implementation of the policies, protocols and procedures identified in their declarations. At the start of this litigation, Defendants argued that everything that could be done was being done and that the de minimus numbers of COVID19 positive cases reflected this. As the numbers increased, Defendants continued to maintain that their efforts were sufficient to contain the virus. Even with the most recent, dramatic numbers, Defendants contend that the remedy of curative quarantine and appropriate medical treatment is available and successful. But the Court, on this record, cannot ignore the medical data and say that this is accurate. As the court recently noted in granting habeas to federal inmates in Wilson, while these may be “good efforts . . . at this preliminary stage of the litigation, the Petitioners have sufficiently met the threshold for showing that Respondents have been deliberately indifferent.” Wilson, (DE 22 at 16). And although Defendant Junior states that he planned to implement, or would have ultimately adopted, policies that are now required by the TRO, the Court cannot rest its analysis on this assurance alone. The Court must also rely on expert testimony, medical data on the presence and progress of the virus, and the inescapable fact that Metro West is in the crosshairs of this contagion.
Therefore, the Court finds that Plaintiffs have made a clear showing on both the
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objective and subjective components of their Eighth Amendment claim and, “[h]aving met both prongs of the Eighth Amendment analysis, [Plaintiffs] have demonstrated a likelihood of success on the merits.” Wilson, (DE 22 at 16).
ii. Plaintiffs have shown they will suffer irreparable harm absent an injunction
As the Eleventh Circuit has recognized, “[a] showing of irreparable injury is ‘the sine qua non of injunctive relief.’” See Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (quoting Northeastern Fla. Chapter of the Ass’n of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990)). Here, Plaintiffs have clearly shown that they will suffer irreparable injury without a preliminary injunction because, absent injunctive relief, COVID-19 will continue to spread throughout Metro West and infect additional inmates and staff, which could lead to serious medical complications, including death, for those who are exposed to the virus. See Wilson, (DE 22 at 17) (finding that petitioners had shown they would suffer irreparable harm because “it is more than mere speculation that the virus will continue to spread and pose a danger to inmates if [defendant] does not increase its efforts to stop the spread”); see also Basank, 2020 WL 1481503, at *7 (“The risk that Petitioners will face a severe, and quite possibly fatal, infection if they are returned to immigration detention constitutes irreparable harm warranting a preliminary injunction.”); Barbecho, 2020 WL 1876328, at *6 (S.D.N.Y. Apr. 15, 2020) (“[B]eing in immigration detention places these Petitioners at a significantly higher risk of contracting COVID-19. Indeed, numerous courts, including this one, have recognized that ‘individuals in carceral settings are at a ‘significantly higher’ risk of spreading infectious diseases.”); Valenzuela Arias, 2020 WL 1847986, at *5 (“Petitioners’ continued confinement in immigration detention poses a significant risk that they will contract COVID-19, and
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Petitioners’ infection with COVID-19 would almost certainly cause severe—or fatal— damage to their health. Such an injury constitutes irreparable harm and justifies the issuance of a TRO.”); Bharatkumar G. Thakker v. Doll, 2020 WL 1671563, at *4 (M.D. Pa. Mar. 31, 2020) (“Petitioners face a very real risk of serious, lasting illness, or death. There can be no injury more irreparable.”); Malam v. Adduci, 2020 WL 1672662, at *7 (E.D. Mich. Apr. 5, 2020) (“The ongoing COVID-19 pandemic creates a high risk that absent an injunction by this Court, Petitioner will suffer irreparable harm in the loss of health or life as a result of contracting the COVID-19 virus.”).
iii. Plaintiffs have shown that the threatened injury posed by the COVID-19 outbreak at Metro West outweighs any damage to Defendants resulting from an injunction
The threat of a continuing outbreak of COVID-19 among the inmates and staff at Metro West outweighs the damage to Defendants caused by an injunction requiring Defendants to comply with the CDC Guidance. See Wilson, (DE 22 at 18) (“[T]here is a continued risk of harm to others, including prison staff, if inmates remain in the prison and the virus continues to thrive among the dense inmate population.”); see also Castillo v. Barr, 2020 WL 1502864, at *6 (C.D. Cal. Mar. 27, 2020) (“The balance of the equities tip sharply in favor of the Petitioners. The Petitioners face[] irreparable harm to their constitutional rights and health. Indeed, there is no harm to the Government from engaging in unlawful practices.”); Fraihat v. U.S. Immigration & Customs Enf’t, 2020 WL 1932570, at *28 (C.D. Cal. Apr. 20, 2020) (“The balance of equities sharply incline in Plaintiffs’ favor. ‘It is always in the public interest to prevent the violation of a party’s constitutional rights.’”) (citation omitted); Hernandez Roman v. Wolf, 2020 WL 1952656, at *12 (C.D. Cal. Apr. 23, 2020) (“The balance of equities, here, tip sharply in favor of the class members; the
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class members face irreparable harm to their constitutional rights and health. The Government is not harmed when a court prevents the Government from engaging in unlawful practices.”). While Plaintiffs have made a clear showing that they face immediate, irreparable harm from COVID-19, Defendants have not offered any evidence as to why the administrative burden resulting from compliance with an injunctive order outweighs the threat of serious illness or death of inmates that will result from the spread of the virus throughout Metro West. Indeed, Defendants have repeatedly stated they were poised to take the measures in the TRO before its entry and have now implemented those measures and more; if so, there can be no appreciable impact on them as a result of the injunctive relief granted in this Order. (DE 92-2 at 3) (“Virtually all of the measures taken after April 5, 2020 would have been taken, regardless of the allegations in this case.”).
iv. Plaintiffs have shown the injunction will not be adverse to the public interest
Finally, Plaintiffs have clearly demonstrated that injunctive relief in this matter as to their 1983 claim will not adversely impact the public interest. In fact, because detention facilities have quickly become “hot spots” for COVID-19 throughout the country, an order requiring Defendants to implement various measures to reduce the spread of the virus in Metro West advances the public interest by reducing the chance of community spread in Miami-Dade County linked to COVID-19 cases at Metro West. Indeed, the Supreme Court has recognized that “[t]he third and fourth factors, harm to the opposing party and the public interest, merge when the Government is the opposing party.” Niken v. Holder, 556 U.S. 418, 435 (2009); see also Wilson, (DE 22 at 19) (holding that “it is always in the public interest to prevent the violation of a party’s constitutional rights”) (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994)); Castillo, 2020
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WL 1502864, at *6 (stating that “[t]he emergency injunctive relief sought, here, is absolutely in the public’s best interest. The public has a critical interest in preventing the further spread of the coronavirus. An outbreak at Adelanto would, further, endanger all of us”); Bent, 2020 WL 1812850, at *7 (noting that “an outbreak in a detention facility may strain the resources of regional hospitals and health centers, and reduce the number of hospital[] beds and equipment available for the general population”); Fraihat, 2020 WL 1932570, at *28 (“[T]here can be no public interest in exposing vulnerable persons to increased risks of severe illness and death.”); Thakker, 2020 WL 1671563, at *4 (“Efforts to stop the spread of COVID-19 and promote public health are clearly in the public’s best interest.”); Odebrecht Const., Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d 1268, 1290 (11th Cir. 2013) (“[T]he public has no interest in the enforcement of what is very likely an unconstitutional [policy].”).
For the reasons stated above, Plaintiffs have met their burden to demonstrate that they are entitled to a preliminary injunction on their Section 1983 claim. The terms of the preliminary injunction are set forth below.
E. Plaintiffs’ Section 2241 Claim Plaintiffs also seek an order requiring their immediate release pursuant to Section 2241. Plaintiffs argue that “[t]he members of the Medically Vulnerable Subclass all have conditions that render them exceptionally vulnerable to death or serious harm if exposed to COVID-19.” (DE 3 at 25). Thus, Plaintiffs contend, “there is no practicable way to ensure that they can avoid infection and no practicable way to ensure that, if infected, they receive prompt and reasonable medical treatment within the jail . . . [and] [t]herefore, their continued detention is a grave risk to their lives and violates the Constitution.” Id. at 25-
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26. Defendants argue that “Plaintiffs cannot obtain habeas relief under 28 U.S.C. §
2241 for three primary reasons: (1) the Eleventh Circuit expressly prohibits inmates from pursuing habeas relief as a remedy for conditions of confinement claims like theirs; (2) only immigration detainees (i.e., federal civil detainees) have been released under § 2241 for reasons involving COVID-19; and (3) Plaintiffs never exhausted their state court remedies prior to filing this suit.” (DE 67 at 31).
Plaintiffs have not shown a likelihood of success on the merits as to their 2241 claim seeking the extraordinary remedy of releasing all medically vulnerable inmates at Metro West because the Eleventh Circuit has held that “relief of an Eighth Amendment violation does not include release from confinement.” Gomez, 899 F.2d at 1126; see also Fernandez, 941 F.2d at 1494 (“Release from confinement is not a possible remedy.”); Vaz v. Skinner, 634 F. App’x 778, 781 (11th Cir. 2015) (“Petitioner’s § 2241 petition is not the appropriate vehicle for raising an inadequate medical care claim . . . [and] even if Petitioner established a constitutional violation, he would not be entitled to the relief he seeks because release from imprisonment is not an available remedy for a conditions-ofconfinement claim.”) (internal citations omitted).23 The Eleventh Circuit explained in Gomez that “[t]he appropriate Eleventh Circuit relief from prison conditions that violate the Eighth Amendment during legal incarceration is to require the discontinuance of any improper practices, or to require correction of any condition causing cruel and unusual punishment.” Gomez, 899 F.2d at 1126.
23 While it is correct that Vaz reiterates the language in Gomez, Vaz is an unpublished Eleventh Circuit opinion concerning a 2241 claim brought by a single petitioner who complained of dental issues. Vaz, 634 F. App’x at 781. It is therefore readily distinguishable from the case at hand.
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The Court wishes to make two observations. First, as Plaintiffs point out, the Eleventh Circuit is in the minority of a circuit split regarding whether a 2241 habeas claim — as opposed to a Section 1983 claim—is a proper avenue to challenge conditions of confinement. See Dawson v. Asher, No. C20-0409JLR-MAT, 2020 WL 1704324, at *8 (W.D. Wash. Apr. 8, 2020) (“The majority of federal circuit courts allow detainees to challenge their conditions of confinement via a habeas petition.”) (citing Aamer v. Obama, 742 F.3d 1023, 1036-37 (D.C. Cir. 2014); United States v. DeLeon, 444 F.3d 41, 59 (1st Cir. 2006); Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242 & n.5 (3d Cir. 2005); McNair v. McCune, 527 F.2d 874, 875 (4th Cir. 1975); Adams v. Bradshaw, 644 F.3d 481, 482-83 (6th Cir. 2011)).
Second, the precedent cited above may not be as clear cut as Defendants suppose. While the Eleventh Circuit has seemingly foreclosed habeas relief to those challenging conditions of confinement generally, in Gomez the court left open the question of whether habeas would be available in a context where there was no constitutional manner of continued confinement (i.e., no remedy absent release), which is precisely what Plaintiffs allege is their current situation. See Gomez, 899 F.2d at 1126-27. In Gomez, the Eleventh Circuit considered whether a petitioner suffering from AIDS was entitled to habeas relief because the prison in which he was detained could not provide him adequate treatment. Id. at 1125. The court stated that the relevant question for habeas relief was “not whether [the prison] can provide adequate treatment under court order, but whether the Bureau of Prisons can give adequate medical treatment any place in its system.” Id. at 1126. The court found that, because the BOP could provide adequate treatment at a federal facility in Missouri, petitioner was not entitled to be released but was instead entitled either to be
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transferred to that facility or to “a mandatory injunction to bring his treatment up to constitutional standards.” Id. at 1127. The Court agrees with Plaintiffs that this holding strongly implies that had no facility been able to treat Gomez as constitutionally required, he may have been entitled to habeas relief.
And other courts have suggested this may be the appropriate reading of Gomez. See Gayle v. Meade, Case No. 20-21553-COOKE/GOODMAN (Apr. 22, 2020) (DE 63, Report and Recommendations) (“[T]he Gomez rule is based on the implicit assumption that a correction or discontinuance of the unconstitutional practice is actually available. If no correction is feasible, then the remedy which the Eleventh Circuit relied upon would become illusory. If that were the case, then the Undersigned would reconsider the conclusion that there is no habeas corpus release remedy for the detainees.”) (internal quotations omitted); see also A.S.M. v. Donahue, No. 7:20-CV-62, 2020 U.S. Dist. LEXIS 65226, at *5 (M.D. Ga. Apr. 10, 2020) (denying emergency motion for preliminary injunctive relief filed by ICE detainees held at two local detention centers who alleged risk of COVID-19 virus infection, but noting that the court might reconsider habeas relief as persuasive if the conditions “cannot be modified to reasonably eliminate those risks”).
Nonetheless, Plaintiffs have not made a “clear showing” that they have exhausted their available state court remedies, a necessary prerequisite for injunctive relief on their 2241 claim.24 See Money, 2020 WL 1820660, at *21 (denying habeas relief and finding
24 The Court notes that, while Plaintiffs have not met the stringent requirements for obtaining injunctive relief in the form of immediate release of an entire class of inmates from Metro West under Section 2241, their habeas claim is not without viability, especially given the medical community’s consensus that there will likely be further “waves” of COVID-19 in the near future. See Coronavirus: US health official warns of dangerous second wave, BBC NEWS, https://www.bbc.com/news/world-us-canada-52378845 (“A second wave of coronavirus cases in the US could be even worse than the first, the country’s top health official has warned. [CDC] director Robert Redfield said the danger was higher as a fresh outbreak would likely coincide
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that “Plaintiffs have not made a satisfactory showing that the state court system was not every bit as available as the federal courts, if not more so”). The Court need not reach the other three factors of the injunction analysis because Plaintiffs have not shown a likelihood of success on their 2241 habeas claim at this time. See Keister v. Bell, 879 F.3d 1282, 1288 (11th Cir. 2018) (holding that where the moving party fails to demonstrate that they are likely to prevail, the Court “do[es] not need to address the remaining preliminary injunction requirements”).
Although Plaintiffs have not demonstrated that they are entitled to the extraordinary remedy of having this Court enter an injunctive order immediately releasing the named Plaintiffs or a medically vulnerable subclass at this stage, the Court strongly urges Defendants to continue to be guided by the joint conclusion of the expert doctors who inspected Metro West on April 18, 2020: “an urgent reduction in the population in this facility and increased screening for COVID19 infection among the staff and inmates to mitigate the spread of this infection within the community.” (DE 70-1 at 1). This recommendation is supported by the view of the CDC and physicians and medical experts nationwide.
Finally, the Court notes that the injunctive measures in this order were carefully crafted and, having examined relevant caselaw, the Parties’ written and oral submissions and evidence, and the entire record, the Court concludes that the relief set forth herein is “narrowly drawn, extends no further than necessary to correct the violation of” Plaintiffs’
with the flu season.”). And the Supreme Court in Ross explicitly recognized an exception to exhaustion where other state court remedies are “unavailable.” Ross, 136 S. Ct. at 1856. While the Court has not found that to be the case at this preliminary stage, circumstances may evolve over time that would necessitate revisiting this determination.
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Eighth Amendment rights, “and is the least intrusive means necessary to correct” Defendants’ violation of those rights. 18 U.S.C. § 3626(a)(1)(A). Additionally, the Court has carefully weighed the impact this injunctive relief will have on the public interest— which is, of course, benefitted by measures that reduce the spread of COVID-19 in our community—and has given “substantial weight” to any adverse impact this injunctive relief may have on Defendants’ operation of Metro West, which amounts primarily to the logistical and administrative burden of implementing narrowly-drawn measures critical to safeguarding the health and safety of the pretrial detainee Plaintiffs.
IV. CONCLUSION Accordingly, it is ORDERED and ADJUDGED that Plaintiffs’ motion for a preliminary injunction (DE 3) is GRANTED IN PART, for a period of 45 days,25 as follows: 1. It is ORDERED that Defendants shall take the following actions at the Metro
West Detention Center: • Effectively communicate to all people incarcerated at Metro West Detention
Center, including low-literacy and non-English-speaking people, sufficient information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices to reasonably ensure that individuals are able to take precautions to prevent infection; • To the maximum extent possible considering Metro West Detention Center’s current population level, provide and enforce adequate spacing of six feet or more between people incarcerated at Metro West so that social distancing
25 The PLRA states that “[p]reliminary injunctive relief shall automatically expire on the date that is 90 days after its entry.” 18 U.S.C. § 3626(a)(2).
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can be accomplished; • Ensure that each incarcerated person receives, free of charge: (1) an
individual supply of soap, preferably liquid as recommended by the CDC, sufficient to allow frequent hand washing each day; (2) hand drying machines, or disposable paper towels as recommended by the CDC, and individual towels, sufficient for daily use; (3) an adequate supply of disinfectant products effective against the virus that causes COVID-19 for daily cleanings; and (4) an adequate supply of toilet paper sufficient for daily use; • Provide reasonable access to showers and to clean laundry; • Require that all MDCR staff wear personal protective equipment, including masks, and gloves when physically interacting with any person, and require that, absent extraordinary or unusual circumstances, a new pair of gloves is worn each time MDCR staff touch a different person; and require all inmate workers who are cleaning facilities or preparing food to follow this same protocol; • Require that all MDCR staff regularly wash their hands with soap and water or use hand sanitizer containing at least 60% alcohol; • Ensure access to proper testing for anyone displaying known symptoms of COVID-19 in accordance with CDC guidelines and for anyone who has come in contact with an individual who has tested positive for COVID-19; • Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 receive adequate medical care and are properly
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quarantined, with continued access to showers, mental health services, phone calls with family, and communications with counsel; individuals identified as having COVID-19 or having been exposed to COVID-19 shall not be placed in cells normally used for disciplinary confinement absent emergency circumstances; • Respond to all emergency (as defined by the medical community) requests for medical attention as soon as possible; • Provide sufficient disinfecting supplies consistent with CDC recommendations in each housing unit, free of charge, so incarcerated people can clean high-touch areas or any other items in the unit between each use; • Waive all medical co-pays for those experiencing COVID-19-related symptoms; • Waive all charges for medical grievances during this health crisis; and • Provide face masks for all inmates at Metro West. The face masks must be replaced at medically appropriate intervals, and Defendants must provide inmates with instruction on how to use a face mask and the reasons for its use. 2. Defendants are further ORDERED to: • Continue providing the Court with updated information regarding the number of staff and inmates who have tested positive for, or are being quarantined because of, COVID-19. These notices shall be filed every three days for the duration of this Order; Defendants shall also continue to provide this
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• Provide the Court with weekly reports containing the current population data for Metro West; and
• Submit, within 7 days of this Order, a proposal outlining steps Defendants will undertake to ensure additional social distancing safeguards in terms of housing inmates and inmate activity (medical visits, telephones, etc.).
3. The injunctive provisions set forth in this Order shall expire 45 days from the date of this Order. At that time, the Court will review the record to determine whether it is necessary to extend the Order.
As to Plaintiffs’ 2241 claim, for the reasons stated above, the portion of the emergency motion (DE 3) seeking their immediate release from Metro West is DENIED without prejudice.
DONE AND ORDERED in chambers in Miami, Florida, this 29th day of April, 2020.
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 No. 20-11622

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
Anthony Swain, Alen Blanco, Bayardo Cruz, Ronniel Martinez-Flores, and Deondre Willis,
Plaintiffs-Appellees, Peter Bernal and Winfred Hill,
Plaintiffs, vs.
Daniel Junior, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department,
and Miami-Dade County, Defendants-Appellants.
Appeal from the United States District Court for the Southern District of Florida
APPELLANTS’ OPPOSED EMERGENCY MOTION TO STAY INJUNCTION PENDING APPEAL

ABIGAIL PRICE-WILLIAMS MIAMI-DADE COUNTY ATTORNEY

Ezra S. Greenberg Oren Rosenthal Zach Vosseler Bernard Pastor Assistant County Attorneys

Stephen P. Clark Center 111 N.W. First Street, Suite 2810 Miami, Florida 33128 (305) 375-5151

Counsel for Appellants

No. 20-11622, Swain v. Junior CERTIFICATE OF INTERESTED PERSONS AND
CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit Rule 26.1-1, Appellants Daniel Junior and Miami-Dade County certify that the following persons and entities may have an interest in the outcome of this case: 1. Advancement Project, Counsel for Plaintiffs-Appellees 2. Bernal, Peter, Plaintiff-Appellee* 3. Blanco, Alen, Plaintiff-Appellee 4. Civil Rights Corps, Counsel for Plaintiffs-Appellees 5. Community Justice Project, Counsel for Plaintiffs-Appellees 6. Cruz, Bayardo, Plaintiff-Appellee 7. DLA Piper LLP (US), Counsel for Plaintiffs-Appellees 8. Dream Defenders, Counsel for Plaintiffs-Appellees 9. Flores, Ronniel, Plaintiff-Appellee 10. Greenberg, Ezra S., Counsel for Defendants-Appellants 11. GST LLP, Counsel for Plaintiffs-Appellees 12. Harvey, Thomas B., Counsel for Plaintiffs-Appellees 13. Hill, Winfred, Plaintiff † 14. Hochstadt, Jennifer L., Counsel for Defendants-Appellants 15. Hubbard, Katherine, Counsel for Plaintiffs-Appellees 16. Jagannath, Meena, Counsel for Plaintiffs-Appellees
* Peter Bernal was released from custody on April 29 via state-court order. † Winfred Hill was released from custody on April 21 via state-court order.
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No. 20-11622, Swain v. Junior 17. Junior, Daniel, Defendant-Appellant 18. Karakatsanis, Alec, Counsel for Plaintiffs-Appellees 19. Miami-Dade County, Defendant-Appellant 20. Miami-Dade County Attorney’s Office 21. Pastor, Bernard, Counsel for Defendants-Appellants 22. Price-Williams, Abigail, Miami-Dade County Attorney 23. Ragsdale, Maya, Counsel for Plaintiffs-Appellees 24. Rodriguez-Taseff, Lida, Counsel for Plaintiffs-Appellees 25. Rosenthal, Oren, Counsel for Defendants-Appellants 26. Sanoja, Katherine Alena, Counsel for Plaintiffs-Appellees 27. Smith, R. Quinn, Counsel for Plaintiffs-Appellees 28. Swain, Anthony, Plaintiff-Appellee 29. Torres, Hon. Edwin G., United States Magistrate Judge 30. Twinem, Alexandria, Counsel for Plaintiffs-Appellees 31. Viciana, Ana Angelica, Counsel for Defendants-Appellants 32. Vosseler, Zach, Counsel for Defendants-Appellants 33. Williams, Hon. Kathleen M., United States District Judge 34. Willis, Deondre, Plaintiff-Appellee 35. Yang, Tiffany, Counsel for Plaintiffs-Appellees 36. Zaron, Erica, Counsel for Defendants-Appellants
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No. 20-11622, Swain v. Junior This appeal involves a governmental defendant, Miami-Dade County, which is a political subdivision of the State of Florida. There are no parent companies, subsidiaries, or affiliate companies that have issued shares to the public.
/s/ Ezra S. Greenberg Ezra S. Greenberg Assistant County Attorney
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TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT ............................ C1 INTRODUCTION AND NATURE OF EMERGENCY .................. 1 STATEMENT OF JURISDICTION .......................................... 5 STANDARD OF REVIEW ....................................................... 5 ARGUMENT ........................................................................ 6
I. Defendants Are Likely to Succeed on the Merits ........................... 6 A. The district court erred in ﬁnding deliberate indifference............ 6 B. The district court abused its discretion by refusing to consider Plaintiffs’ failure to establish municipal liability ........... 14 C. The district court abused its discretion by failing to address exhaustion....................................................... 15
II. Defendants Will Suffer Irreparable Injury Absent a Stay ................. 17 III. The Balance of Harms and Public Interest Favor a Stay .................. 20 CONCLUSION .................................................................... 21 CERTIFICATES OF COMPLIANCE........................................22 CERTIFICATE OF SERVICE ................................................. 23 EXHIBIT LIST .................................................................... 24
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INTRODUCTION AND NATURE OF EMERGENCY Miami-Dade Corrections and Rehabilitation Department (MDCR), a department of Miami-Dade County, operates Metro West Detention Center, the largest direct-supervision (officer embedded in the unit with inmates) jail facility in the State of Florida. Approximately 1,550 of MDCR’s 3,300 inmates are currently housed at Metro West. Before the ﬁrst case of COVID-19 was reported in Florida, MDCR began taking numerous steps to protect the inmate population from what would become a global pandemic. Those efforts began early in March 2020—weeks before this lawsuit— and have continually expanded as additional information becomes known and additional resources become available. On April 5, seven Metro West inmates ﬁled a two-count class action complaint. Count I challenged the conditions of their conﬁnement under 42 U.S.C. §1983. Count II sought habeas relief under 28 U.S.C. §2241 for Plaintiffs and a “medically vulnerable” subclass of individuals at Metro West over age 60 or with various chronic health conditions. R.1. Plaintiffs also moved for an emergency temporary restraining order, an emergency preliminary injunction, and class certiﬁcation. R.3; R.5. On April 7, the district court entered a TRO based solely upon the unveriﬁed declarations of the seven named Plaintiffs. R.25¶¶1, 6. Plaintiffs’ unchallenged allegations included that they had “limited access to soap,” “no safe way to dry their hands,” “sleep within one to two feet of one another, must wait days to seek medical attention, and are denied basic hygiene supplies such as laundry detergent, cleaning
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APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

supplies, and tissues.” R.3 at 1. As part of the TRO, the district court ordered Defendants to ﬁle a notice of the steps they had taken to protect medically vulnerable individuals from COVID-19, which Defendants filed. R.25¶¶2, 30. The TRO contained a mandate “[t]o the maximum extent possible considering [Metro West’s] current population level, provide adequate spacing of six feet or more between people . . . so that social distancing can be accomplished. R.25¶4.
On April 14, the district court extended the TRO six days beyond the initial fourteen to permit an independent inspection of Metro West to scrutinize Defendants’ compliance with the TRO. R.52¶¶1, 4. That inspection revealed Plaintiffs’ allegations as false: The inspection report, co-authored by two physicians, refuted Plaintiffs’ allegations regarding the cleanliness, hygiene and supplies within the facility; did not indicate a single area in the TRO where Defendants were noncompliant or had not taken the steps they claimed to have taken. R.70-1. The report concluded that MDCR officials were doing their “best” under the difficult circumstances of controlling the spread of a viral infection in Metro West’s dormitory-style housing units. Id. The report stated that MDCR “should be commended for their commitment to protect the staff and the inmates in this facility during this COVID19 pandemic” and were “doing their best balancing social distancing and regulation applicable to the facility.” Id.
In addition, Defendants submitted exhaustive evidence showing their continued efforts to mitigate the spread of COVID-19 and treat symptomatic individuals at
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Metro West. R.65; R.69; R.92.1 Those efforts include instituting comprehensive
procedures designed to respond to changing conditions on-site.2
The district court heard the preliminary injunction motion on April 27 and 28.
On April 27, the district court extended the TRO for an additional 48 hours based on
a conclusory recital of good cause. R.96. Although the TRO stated it would be valid
until Defendants demonstrated “substantial[] compli[ance],” the district court
ultimately never made any such ﬁnding. R.25¶5. Instead, as set forth below, it created
a new standard of liability reasoning that the increase in infections alone, without
regard to the voluntary and extensive remedial measures taken both before and during
the pendency of this case, proved that Defendants are deliberately indifferent.
Ignoring the ﬁndings of the inspection report that Metro West was “doing their
best” to achieve social distancing, the district court entered a preliminary injunction
on April 29, finding Defendants deliberately indifferent for failing to sufficiently
achieve meaningful social distancing. R.100 (“Order”). In addition to the TRO’s
requirements, the injunction imposes expanded testing requirements, a new facemask
change policy, inmate education requirements, a requirement to provide reports on
1 Both the TRO and the extending order contained onerous reporting requirements that, together with subsequent orders, required eight detailed notices of compliance before the evidentiary hearing. R.25¶2; R.52¶¶6-8; R.88 (reporting requirements); R.30; R.54; R.55; R.59; R.71; R.72; R.87; R.90 (notices of compliance). One order required a detailed report about the decisionmaking process of non-County officials with less than 24 hours’ notice over the weekend. R.88; R.90. The injunction imposes more reporting obligations every three days regarding testing of inmates and staff, and tallies of isolation and quarantine populations. R.52¶8; R.99.
2 No Plaintiff has exhibited COVID-19 symptoms. R.92-1; R.92-3¶19. No inmates at Metro West have died from COVID-19; three who were hospitalized later returned. R.92-3¶13. 3
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

the number of inmates and staff tested and quarantined every three days, a requirement to provide weekly population data for Metro West and, most onerously, a vague mandate to submit a proposal within seven days “outlining steps Defendants will undertake to ensure additional social distancing safeguards in terms of housing inmate and inmate activity (medical visits, telephones, etc.).” Order 49-52.
A stay is warranted. Ignoring the Supreme Court’s admonition that “[f ]ederal courts do not sit to supervise state prisons,” Meachum v. Fano, 427 U.S. 215, 229 (1976), the district court abused its discretion in enjoining the County despite a dearth of evidence supporting deliberate indifference. The injunction is without basis because Plaintiffs did not show a likely violation of the Eighth Amendment (or, more accurately, the Fourteenth Amendment). Defendants have implemented comprehensive policies to minimize the risk to Plaintiffs and other inmates, and they have continuously updated those policies as new information and new resources become available. Defendants are not ignoring a substantial risk at Metro West.
In addition to misapplying deliberate indifference, the district court abused its discretion by abdicating its obligation to address two threshold issues: municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (1978), and failure to exhaust administrative remedies under the PLRA.
Defendants ﬁled a notice of appeal and motion to stay pending appeal in the district court on April 29, requesting a ruling by 2:00 p.m. today (R.101; R.102). The court failed to afford the relief requested, so Defendants seek a stay under Federal
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APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

Rule of Appellate Procedure 8(a)(2) and respectfully request a ruling by 5:00 p.m. on May 5, 2020, or entry of an administrative stay.
STATEMENT OF JURISDICTION This Court has jurisdiction over the district court’s preliminary injunction order. 28 U.S.C. §1292(a)(1).
STANDARD OF REVIEW A stay applicant must satisfy four factors: (1) the applicant is likely to succeed on the merits; (2) the applicant will be irreparably harmed absent a stay; (3) issuance of the stay will not substantially harm the opposing parties; and (4) the public interest favors a stay. Nken v. Holder, 556 U.S. 418, 434 (2009). The ﬁrst two factors are “the most critical.” Id. “In considering whether to stay a preliminary injunction, . . . we examine the district court’s grant of the preliminary injunction for abuse of discretion, reviewing de novo any underlying legal conclusions and for clear error any findings of fact.” Democratic Exec. Comm. v. Lee, 915 F.3d 1312, 1317 (11th Cir. 2019). A district court abuses its discretion when it “applies the wrong legal standard, follows improper procedures in making its determination, bases its decision on clearly erroneous ﬁndings of fact, or applies the law in an unreasonable or incorrect manner.” Sellers v. Rushmore Loan Mgmt. Servs., LLC, 941 F.3d 1031, 1038 (11th Cir. 2019) (cleaned up). Importantly, “[t]he burdens at the preliminary injunction stage track the burdens at trial,” Gonzales v. O Centro Espirita Beneﬁcente Uniao do Vegetal, 546 U.S. 418, 429 (2006) (emphasis added), so “where a nonmovant would bear the burden of
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persuasion at trial” on an affirmative defense, a movant cannot be deemed likely to succeed on the merits if the nonmovant “make[s] an adequate showing” on that defense, LSSi Data Corp. v. Comcast Phone, LLC, 696 F.3d 1114, 1123 n.11 (11th Cir. 2012) (cleaned up).
ARGUMENT I. Defendants Are Likely to Succeed on the Merits.
The injunction goes beyond maintaining the status quo: it directs MDCR how to conduct its affairs. “[W]hen a plaintiff applies for a mandatory preliminary injunction” like Plaintiffs have, “such relief should not be granted except in rare instances in which the facts and law are clearly in favor of the moving party.” Exhibitors Poster Exch., Inc. v. Nat’l Screen Serv. Corp., 441 F.2d 560, 561-62 (5th Cir. 1971) (emphasis added) (cleaned up). The facts and law were not clearly in Plaintiffs’ favor. The district court abused its discretion in ﬁnding that they were.3
A. The district court erred in ﬁnding deliberate indifference. To prevail on an Eighth Amendment conditions-of-confinement claim, the plaintiff must ﬁrst show “that a condition of his conﬁnement poses an unreasonable risk of serious damage to his future health or safety,” and “deprive[s] [him] of the minimal civilized measure of life’s necessities.” Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004). “[O]nly those conditions which objectively amount to an ‘extreme deprivation’ violating contemporary standards of decency are subject to
3 The district court’s legal errors began here, invoking a “sliding scale” standard for injunctive relief that this Court has never applied in the case of a mandatory injunction. Order 8-9. 6
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

Eighth Amendment scrutiny.” Thomas v. Bryant, 614 F.3d 1288, 1306-07 (11th Cir.
2010) (cleaned up). Courts additionally consider whether the prison has objectively
enacted policies to limit that risk. Helling v. McKinney, 509 U.S. 25, 35-37 (1993).
Plaintiffs must also satisfy the state-of-mind requirement—deliberate indifference. Thomas, supra, at 1304.4 This standard precludes liability unless a prison
official “knows of and disregards an excessive risk to inmate health or safety.” Farmer
v. Brennan, 511 U.S. 825, 837 (1994). The plaintiff must show that prison officials are
both “aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists,” and “also draw the inference.” Marbury v. Warden, 936 F.3d
1227, 1233 (11th Cir. 2019) (cleaned up). The plaintiff must then show “disregard of
that risk . . . by conduct that is more than gross negligence.” Harrison v. Culliver, 746
F.3d 1288, 1298 (11th Cir. 2014) (emphasis added) (cleaned up). A prison official’s
mere failure to avoid harm or eliminate a risk does not violate the Eighth Amendment.
See Farmer, supra, at 847.
Plaintiffs cannot prevail under this standard, which the district court did not
even recite in its 52-page Order. MDCR officials have not been indifferent, let alone
deliberately so. Beginning weeks before the lawsuit was ﬁled, and continuing to this
4 The district court’s heavy reliance on Mays v. Dart, No. 20-2134, 2020 WL 1812381 (N.D. Ill. Apr. 9, 2020), is improper. Mays was decided under a standard that requires pretrial detainees asserting conditions-of-conﬁnement claims to show only that a defendant’s conduct was objectively unreasonable. Id. at *7. That is not the law in this Circuit. Dang ex rel. Dang v. Sheriff, Seminole Cty., 871 F.3d 1272, 1279 n.2 (11th Cir. 2017). This Court adheres to its long-held view that these claims are analyzed no differently than convicted prisoners’ claims under the Eighth Amendment. E.g., Taylor v. Hughes, 920 F.3d 729, 733 (11th Cir. 2019). 7
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

very day, MDCR implemented and updated numerous policies targeted at preventing the introduction and spread of COVID-19 within Metro West:
(1) screening all new arrestees for COVID-19 symptoms at intake and, if necessary, transferring them to a hospital for testing, treatment, and evaluation (R.65-1¶¶36, 67);
(2) enhancing cleaning and sanitization procedures, including using industrialgrade sanitation equipment to clean housing units (R.65-1¶¶32-34; R.655¶10; R.65-14; R.65-30);
(3) prohibiting visitation in the facility and requiring that attorney conferences be conducted behind glass or via telephone/video conference (R.65-1¶52; R.65-8¶4; R.65-14);
(4) halting all social activities that would enable inmates to come into contact with inmates from other housing units (R.65-1¶52);
(5) posting information throughout the facility, in English, Spanish, and Creole, about the risk of COVID-19 and how to reduce its transmission, and including pictures for inmates with literacy issues (R.65-5¶¶13-14; R.65-6¶12; R.65-9¶14; R.65-32);
(6) quarantining all new arrestees for fourteen days, a period which resets if any arrestee becomes symptomatic (R.65-1¶¶38, 67);
(7) conducting medical screenings, including temperature checks, of all staff, police officers, or other entrants to the facility (R.65-1¶42; R.65-2¶13; R.65-19); 8
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

(8) prohibiting anyone feeling unwell from entering the facility (R.65-2¶14; R.65-8¶4);
(9) providing gloves to staff to be worn when they have contact with any inmates (R.65-2¶17; R.65-5¶6);
(10) providing disinfectant wipes and hand sanitizer to staff and letting them bring additional personal sanitizer (R.65-1¶35);
(11) limiting recreation to one unit at a time, preventing inmates from using high-touch items during recreation (e.g., basketballs), enforcing social distancing during recreation, and disinfecting the equipment between each unit’s recreation time (R.65-1¶¶44, 102(vii); R.65-2¶31);
(12) requiring inmates to sleep head-to-toe and staggering bunks to maximize social distancing (R.65-1¶23; R.65-2¶25);
(13) cooperating with the State Attorney and Public Defender’s efforts to reduce overall inmate population by providing information about inmates, including medically vulnerable inmates, resulting in a decrease of close to 900 inmates and brining the Metro West overall population to below 70% of capacity in under two months (R.54; R.65-1¶¶17, 90-91; R.65-22; R.922¶¶16-17).
(14) updating the sick-call procedure to allow for immediate evaluation of inmates exhibiting ﬂu-like symptoms or symptoms that may be indicative of COVID-19 (R.65-3¶15);
(15) removing symptomatic inmates from the unit, testing them for COVID-19, 9
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

and placing them in medical isolation with negative air in a single inmate unit (R.65-3¶16; R.65-4¶15); (16) issuing surgical masks to inmates and N-95 masks to staff, and replacing these masks regularly or as needed (R.65-1¶79; R.65-2¶¶16, 17; R.70-1), and updating policy to issue two masks per week to inmates and daily masks to inmates testing positive (R.92-2¶10); (17) providing face shields to all staff interacting with inmates testing positive (Id.); (18) conducting daily temperature checks of all inmates (R.65-11¶93); (19) installing body-heat sensors at strategic places in Metro West to indicate temperatures of more than 100 degrees (R.92-2¶6); (20) purchasing and installing several dozen air puriﬁcation machines to neutralize and destroy bacteria and virus cells (Id.¶5); (21) quarantining inmates who may have had contact with symptomatic inmates (R.65-1¶97; R.65-3¶17); (22) increasing testing as resources became available, performing on-site testing of symptomatic inmates, and conducting contact tracing and testing of inmates who may have come into contact with inmates testing positive (R.92-1¶¶4-5, 9-10; R.92-2¶7; R.92-3¶¶4-5, 9-10); (23) cohorting asymptomatic positive inmates apart from asymptomatic negative inmates as a result of contact testing; providing additional quarantine periods for both groups and closely monitoring both groups for symptoms
10
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

(R.92-1¶11; R.92-2¶8; R.92-3¶11); and (24) conducting contact testing of staff in units with asymptomatic positive
inmates (R.92-1¶14; R.92-2¶11; R.92-3¶14). These policies reasonably respond to the COVID-19 threat. They demonstrate that Defendants have been anything but deliberately indifferent. The district court’s finding that those policies are inadequate or insufficient—based on unpublished, outof-circuit district court cases—does not give rise to a deliberate indifference claim. Given that the Fifth Circuit has twice stayed similar injunctions in recent days, it can hardly be said that the law is clearly in Plaintiffs’ favor. See Valentine v. Collier, — F.3d —, 2020 WL 1934431, at *4 (5th Cir. Apr. 22, 2020) (district court inappropriately “collapsed the objective and subjective components of the Eighth Amendment inquiry . . . [by] treating inadequate measures as dispositive of the Defendants’ mental state”); Marlowe v. LeBlanc, No. 20-30276, 2020 WL 2043425, at *3 (5th Cir. Apr. 27, 2020) (district court inappropriately applied civil negligence standard).
The district court’s analysis turns the deliberate-indifference inquiry on its head, focusing exclusively on the results of a remedial effort rather than its reasonableness in the face of the immense challenges facing MDCR. Replacing deliberate indifference with res ipsa loquitur, the court reasoned that Defendants must be deliberately indifferent because they failed to prevent the introduction and spread of a viral infection into Metro West. The district court specifically rejected the steps Defendants took as insufficient simply because it did not prevent widespread
11
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

asymptomatic infection. Order 37.5 This is inconsistent with Farmer’s holding that
prison officials who respond reasonably to risks cannot be liable “even if the harm
ultimately was not averted.” Farmer, supra, at 844; Marlowe, supra, at *3 (“[A]n
increase in infection rate alone is insufficient to prove deliberate indifference.”); Truss
v. Warden, 684 F. App’x 794, 796-97 (11th Cir. 2017) (reasonable policies to mitigate
spread of tuberculosis defeated deliberate indifference claim).
What’s more, the district court found Defendants deliberately indifferent
without ever explaining what Defendants should have done differently. The district
court specifically set aside any factual dispute regarding implementation of
Defendants’ policies yet still found that the record demonstrated deliberate
indifference. Order 37. The district court found Defendants failed to achieve
sufficient social distancing without identifying anything Defendants should have
done differently. The inspection report and Plaintiffs’ experts opined that ideal social
distancing could only be achieved through prison depopulation. The Court found that
5 As part of its COVID-19 strategy at Metro West, MDCR implemented widespread contact tracing and testing of asymptomatic inmates who had contact with positive inmates so that positive and negative inmates could be cohorted after testing. R.921¶¶11,14; R.92-2¶8,11; R.92-3¶11,14. The level of testing went beyond CDC guidelines and was not required by the TRO. Knowing that it would lead to an increase in their reported positives in the midst of litigation, Defendants nevertheless undertook these efforts to protect the inmate population when the resources became available to do so. R.92-1¶7; R.92-2¶7; R.92-3¶7. Amazingly, the district court then predicted its ﬁnding of deliberate indifference on these numbers, and discredited, in the absence of any contrary evidence, the sworn declarations of three high ranking individuals that none of the measures taken would cease and that they would continue to address the pandemic. R.92-1¶16; R.92-2¶7; R.92-3¶16. 12
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

Plaintiffs met their burden because social distancing could not be achieved “absent additional reduction in Metro West’s population or some other measure to achieve meaningful social distancing.” Order 35 (emphasis added). But the County, of course, is unable to release inmates without a court order, which must be obtained through the state criminal court. R.65-1¶¶89-90. The County has nevertheless cooperated with the State Attorney and Public Defender by providing information that they have used to seek the release of hundreds of inmates because of COVID-19. R.54; R.651¶¶17, 90-91; R.65-22; R.92-2¶¶16-17.
As for the other measures to achieve meaningful social distancing, the district court does not tell us what those are. Defendants’ expert opined that in assessing whether adequate measures have been taken to prevent the spread of infection, it is necessary to view all the steps that Metro West has taken as a whole, rather than each step in a vacuum. R.65-10¶18.6 And the CDC’s Guidance to Detention Facilities notes that while achieving six-foot social distancing is “ideal[]”, “[s]trategies will need to be tailored to the individual space in the facility and the needs of the population and staff” because “[n]ot all strategies will be feasible in all facilities.” R.65-10 p.89.
Without identifying any speciﬁc social distancing strategies that Metro West should have employed, the district court found Defendants deliberately indifferent for failing to achieve “meaningful social distancing.” Order 37. But since the district court lacked an evidentiary basis of how defendants could achieve such meaningful social distancing (absent mass inmate release), the only remedial step it took was
6 The district court neither cited nor rejected this opinion in its order. 13
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

ordering Defendants to submit “a proposal.” Id. 52. While Marlowe and Valentine
faulted the Fifth Circuit’s district courts for applying a negligence standard, the
district court here appears to have applied an even lower standard than that. By
labeling Defendants deliberately indifferent for failing to achieve additional reductions
in inmate population (which is almost entirely outside their control) or to implement
“other” unspeciﬁed social distancing measures in the face of an increase in positive
COVID tests at Metro West, the standard of culpability imposed by the district is
more akin to strict liability than to negligence.7
B. The district court abused its discretion by refusing to consider Plaintiffs’ failure to establish municipal liability.
The district court decided that it needn’t consider Defendants’ argument at
this stage that Plaintiffs completely failed to establish municipal liability under
Monell.8 Order 32-33. “[T]he Supreme Court has made clear that the bar to establish
municipal liability is very high.” Simmons v. Bradshaw, 879 F.3d 1157, 1169 (11th Cir.
2018). Because the Plaintiffs are suing a municipality, even if they showed a likelihood
of success of proving that a constitutional right was violated, they still must show a
likelihood of proving (1) that the County has either “an officially promulgated county
7 The district court’s findings of deliberate indifference are predicated on Defendants’ failure to adhere to an unknown standard of “meaningful social distancing,” so it is likely that whatever “other measures” defendants propose will be deemed insufficient and lead to the convening of a three-judge panel to order inmate release. Order 1 n.1.
8 The official-capacity claims against Director Junior are redundant of the claims against the County. Kentucky v. Graham, 473 U.S. 159, 165-66 (1986); Busby v. City of Orlando, 931 F.2d 764, 766 (11th Cir. 1991). Plaintiffs are not likely to succeed on any claim predicated against an improper party. 14
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

policy” or “an unofficial custom or practice of the county shown through the repeated acts of a ﬁnal policymaker for the county” constituting deliberate indifference to that right and (2) that the policy or custom caused the violation. Grech v. Clayton County, 335 F.3d 1326, 1329 (11th Cir. 2003) (en banc) (emphasis added). Plaintiffs presented no evidence that any inaction they claim is occurring at Metro West results from deliberate indifference by the County’s ﬁnal policymakers, the Mayor and the Board of County Commissions. The district court’s failure to address Monell was critical: its focus on anecdotal evidence of incomplete implementation of the County’s policies is precisely the type of respondeat superior theory that Monell prohibits. Knight ex rel. Kerr v. Miami-Dade County, 856 F.3d 795, 819 (11th Cir. 2017).
This failure to consider Monell flouts this Court’s holding in Church v. City of Huntsville, where it vacated a preliminary injunction solely because the plaintiffs “failed to establish the existence of a municipal policy or a pervasive practice that could serve as a predicate to municipal liability under section 1983,” meaning they had “not shown a substantial likelihood of success on the merits.” 30 F.3d 1332, 1347 (11th Cir. 1994). The district court ignored this. It decided it didn’t need to analyze, as Church did, whether Plaintiffs had met their burden to “show[] a likelihood of success on the merits with respect to the existence of a [county] policy” before granting mandatory injunctive relief. Id. (caps modiﬁed). This was an abuse of discretion.
C. The district court abused its discretion by failing to address exhaustion.
The district court’s abandonment of the PLRA’s exhaustion requirement was
15
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

also an abuse of discretion. “There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007); see 42 U.S.C. §1997e(a); see United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020) (“[S]trict compliance with [statutory exhaustion requirements] takes on added—and critical—importance” when prison officials, who have a “shared desire for a safe and healthy prison environment,” engage in “extensive and professional efforts to curtail the virus’s spread.”).
The County properly raised this affirmative defense through its motion to dismiss, and then argued Plaintiffs’ unlikelihood of overcoming it in its response to the preliminary injunction motion (R.66; R.67). See Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008) (“an exhaustion defense . . . should be raised in a motion to dismiss”). Once raised, the question of exhaustion is a threshold matter that a court “must address” before it may consider the merits of a case. Chandler, supra, at 1286.
Despite those instructions, the district court sidestepped any consideration of exhaustion based on an erroneous belief that affirmative defenses are irrelevant to a preliminary injunction determination. Order 29-30. Contra Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (“[O]nce the moving party has carried its burden of showing a likelihood of success on the merits, the burden shifts to the non-moving party to show a likelihood that its affirmative defense will succeed.”); Valentine, supra, at *5-7, and Marlowe, supra, at *3 (staying injunctions in part because plaintiffs hadn’t exhausted). This failure was an abuse of discretion.
16
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

II. Defendants Will Suffer Irreparable Injury Absent a Stay. Absent immediate relief from this Court, Miami-Dade County’s elected Mayor
and Commissioners, and all MDCR officials, will lose the discretion vested in them under state law to make decisions in response to the COVID-19 pandemic and to weigh the costs and demands of those decisions against the limited resources available to all County operations to ﬁght the pandemic. Limited testing resources must now be allocated to Metro West over any other County priority on pain of contempt. Jail housing classifications indicated by state law and departmental policies to ensure inmate and staff safety, Fla. Stat. §§951.23(4)(a)(2), 944.17-1905; R.65-48; R.65-49, will now be weighed and evaluated by a U.S. District Judge to ensure they comply with a heightened standard of social distancing beyond anything the CDC requires without regard to the resource allocation among the various responsibilities of the County. The professionals who have spent their careers running correctional systems and the elected officials they report to will lose the ability to allocate both the County’s and MDCR’s limited resources in the midst of their pandemic response.
Beyond this very real, immediate, and speciﬁc injury suffered by MDCR and the County as a result of the Order, “[a]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Maryland v. King, 567 U.S. 1301 (2012) (Roberts, C.J., in chambers) (cleaned up). The Florida Legislature assigned the prerogatives of county prison policy to the counties, whose commissioners “shall designate a chief correctional officer” who “shall see that all rules and regulations prescribed by law or the
17
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

department are fully observed and complied with.” Fla. Stat. §951.06(1)-(2). MiamiDade County’s Charter delegates to the Mayor responsibility “for the management of all administrative departments of the County government.” Miami-Dade Cty. Home Rule Charter art. 2, §2.02(A) (2018). The MDCR Director serves at the pleasure of the Mayor and is subject to his supervision. R.65-1¶2. The State has enacted speciﬁc statutes assigning the duties of county jails and regulating the terms and conditions of pretrial confinement. Fla. Stat. §§903.011-.36 (bond and bail); §§907.04-.045 (pretrial detention release); §§951.01-.29 (county jails).
In recent days, the Fifth Circuit stayed two injunctions against corrections departments, finding irreparable harm because the injunctions “prevent[ed] the State from effectuating the Legislature’s choice.” Valentine, supra, at *4; Marlowe, supra, at *3; accord Abbott v. Perez, 138 S. Ct. 2305, 2324 n.17 (2018) (“[T]he inability to enforce its duly enacted plans clearly inﬂicts irreparable harm on the State.”). The district court inﬂicts a similar harm: preventing MDCR from effectuating the Florida Legislature’s, the Board’s, and Mayor’s collective choice.
In short, the preliminary injunction creates “an administrative nightmare” for MDCR “to comply with the district court’s quotas and deadlines.” Ruiz v. Estelle, 650 F.2d 555, 571 (5th Cir. Unit A June 1981). “[T]he burden on [MDCR] in terms of time, expense, and administrative red tape is too great,” id., especially when it must simultaneously respond in rapidly evolving ways to “a crisis that deﬁes ﬁxed approaches,” Valentine, supra, at *5. The order “prevents [MDCR] from responding to the COVID-19 threat without a permission slip from the district court. That
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APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

constitutes irreparable harm.” Id. Prison officials, not judges, are the ones who “make the difficult judgments
concerning institutional operations.” Pesci v. Budz, 935 F.3d 1159, 1166 (11th Cir. 2019). Courts do not “sit[] as a super-warden to second-guess the decisions of the real wardens,” but rather
owe wide-ranging and substantial deference to the decisions of prison administrators because of the complexity of prison management, the fact that responsibility therefor is necessarily vested in prison officials, and the fact that courts are ill-equipped to deal with such problems. Prison Legal News v. Sec’y, Fla. Dep’t of Corr., 890 F.3d 954, 965 (11th Cir. 2018) (cleaned up). Contravening this, the order below is “tantamount to a presumption that Defendants will act in an unconstitutional manner” if their response to COVID19 is not subject to the supervision of the district court. McClendon v. City of Albuquerque, 79 F.3d 1014, 1023-24 (10th Cir. 1996) (irreparable harm shown when injunction would “interfere with law enforcement initiatives, prosecutorial discretion and state judicial power”). Rather than effectuate limited relief for the ﬁve remaining Plaintiffs, the Order places the district court in full control of nearly all aspects of the entire detention facility. The injunction now in force effectively reduces the County’s elected officials and the employees they control to mere agents of the court, which has appointed itself super-warden, overseeing and administrating the County’s response to COVID-19 at Metro West which must now submitted a plan for court approval.
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APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

III. The Balance of Harms and Public Interest Favor a Stay. The question to be determined on the balance-of-harms factor is “whether
Plaintiffs have shown that they will suffer irreparable injuries even after accounting for the protective measures” adopted by MDCR. Valentine, supra, at *5. Plaintiffs cannot show that they will be irreparably harmed because there is no evidence that Defendants will discontinue the protective measures they have taken in the absence of the preliminary injunction. R.92-1¶16; R.92-2¶7; R.92-3¶16. The district court’s rejection of Defendants’ unrebutted assertion that it will continue to address the COVID-19 pandemic without a court order improperly ﬂipped the burden of proof and fails to apply the presumption of voluntary cessation that governmental actions enjoy. Order 31, 40; Atheists of Florida, Inc. v. City of Lakeland, 713 F.3d 577, 594 (11th Cir. 2013). The district court’s application of the voluntary cessation doctrine in the case of mandatory injunction is especially awkward because there was never any conduct to cease. Like the rest of society, Defendants have continued to take steps to respond to COVID-19 even after this lawsuit was ﬁled nearly one month ago. And the district court’s assertion that an injunction must remain in place to ensure Defendants’ compliance with their own policies is, as the Fifth Circuit explained, an injunction prohibited by Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984). Marlowe, supra, *2.
Plaintiffs cannot seriously argue otherwise when they never even sought the preliminary injunction’s keystone relief—the social distancing proposal and mandatory contact testing. See RNC v. DNC, — S. Ct. —, 2020 WL 1672702, at *2 (Apr.
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APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

6, 2020) (staying injunction; noting the “critical point that the plaintiffs themselves did not ask for this additional relief in their preliminary injunction motions”). And because this factor and the public-interest factor “merge when the Government is the opposing party,” Nken, supra, at 435, both factors weigh in the Defendants’ favor.
CONCLUSION The district court’s preliminary injunction should be stayed pending appeal. If the injunction is not stayed, Defendants request that the Court expedite this appeal.

Dated: April 30, 2020.

Respectfully submitted,
Abigail Price-Williams
Miami-Dade County Attorney
By: /s/ Ezra S. Greenberg Ezra S. Greenberg Fla. Bar No. 85018 ezrag@miamidade.gov
Oren Rosenthal Fla. Bar No. 86320 orosent@miamidade.gov
Zach Vosseler Fla. Bar No. 1008856 zach@miamidade.gov
Bernard Pastor Fla. Bar No. 46852 pastor@miamidade.gov
Assistant County Attorneys
Stephen P. Clark Center 111 N.W. First Street, Suite 2810 Miami, Florida 33128 (305) 375-5151
Counsel for Appellants

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APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

CERTIFICATES OF COMPLIANCE 1. This document complies with the type-volume limitation of Fed. R. App. P. 27(d)(2)(A) because it contains 5,200 words. 2. This document complies with the typeface and type-style requirements of Fed. R. App. P. 27(d)(1)(E) because it was prepared using Microsoft Word for Office 365 in size 14 Equity font.
/s/ Ezra S. Greenberg Ezra S. Greenberg Assistant County Attorney
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APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

CERTIFICATE OF SERVICE

On April 30, 2020, this document was ﬁled electronically with the Court of

Appeals via ECF, and true and correct copies were served on counsel for the

Plaintiffs-Appellees via the below:

Lida Rodriguez-Taseff lida.rodriguez-taseff@dlapiper.com DLA Piper LLP (US)
200 South Biscayne Blvd., Ste. 2500 Miami, Florida 33131 (305) 423-8525
Alexandria Twinem alexandria@civilrightscorps.org Katherine Hubbard katherine@civilrightscorps.org Alec Karakatsanis alec@civilrightscorps.org Civil Rights Corps
1601 Connecticut Ave. NW, Ste. 800 Washington, DC 20009 (202) 894-6126

Tiffany Yang tyang@advancementproject.org Thomas B. Harvey tharvey@advacementproject.org Advancement Project
1220 L Street NW, Ste. 850 Washington, DC 20005 (202) 728-9557
R. Quinn Smith quinn.smith@gstllp.com Katherine Alena Sanoja katherine.sanoja@gstllp.com GST LLP
1111 Brickell Ave., Ste. 2715 Miami, Florida 33131 (305) 856-7723

Meena Jagannath meena@communityjusticeproject.com
Community Justice Project
3000 Biscayne Blvd., Ste. 106 Miami, Florida 33137 (305) 907-7697

/s/ Ezra S. Greenberg Ezra S. Greenberg Assistant County Attorney

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APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

EXHIBIT LIST (N.B. No sealed exhibits are attached to this motion.)

DE 1 Class Action Complaint

1-1

Civil Cover Sheet

1-2

Summons Daniel Junior

1-3

Summons Daniel Junior

1-4

Declaration of Jonathan Golob

1-5

Declaration of Jaime Meyer

1-6

Interim Guidance on Management of Coronavirus Disease 2019

1-7

03/12/2020 Doctors in NYC Hospitals, Jails, and Shelters Call on

the City to Take More Aggressive Action to Combat the Spread of

Coronavirus, Medium.com Editorial Article

1-8

03/25/2020 Letter to Hon. Larry Hogan, Governor of Maryland

1-9

Declaration of Marc Stern

1-10 Declaration of Ranti Mishori

1-11 Declaration of Robert Greiﬁnger, M.D.

1-12 Declaration of Dr. Chiao

1-13 03/12/2020 Miami-Dade Department of Corrections, Twitter post

1-14 03/16/2020 State Attorney Kathryn Rundle Twitter Post

1-15 04/03/2020 State Attorney Kathy Rundle, Miami-Dade County’s

“Prosecutors, Public Defenders & Courts Enact COVID-19 Early

Jail Release Plan 18 To Be Released

1-16 03/20/2020 Miami-Dade Department of Corrections, Twitter post

1-17 03/27/2020 Miami-Dade Corrections and Rehabilitation

Department Press Release 1-18 Declaration of Dr. Carlos

Franco Paredes

DE 3 Emergency Motion for Temporary Restraining Order and Preliminary

Injunction with Certiﬁcation of Emergency

3-1

Certiﬁcation Emergency Cert.

3-2

Text of Proposed Order TRO

3-3

Text of Proposed Order PI

3-4

Declaration of Anthony Swain

3-5

Declaration of Winfred Hill

3-6

Declaration of Alan Blanco

3-7

Declaration of Deondre Willis

3-8

Declaration of Bayardo Cruz

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APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

3-9

Declaration of Ronniel Flores

3-10 Declaration of Peter Bernal

3-11 Miami-Dade County Corrections and Rehabilitation Department

Daily Jail Population Statistics

3-12 Miami-Dade County Corrections and Rehabilitation Department

Daily Jail Population Statistics

3-13 Declaration of Jacqueline Ebert

3-14 Miami-Dade County Corrections and Rehabilitation Department

Daily Jail Population Statistics

DE 11 Notice of Filing Declaration of Dr. Fred Rottnek 11-1 Declaration of Dr. Fred Rottnek

DE 17 Notice of Filing Declaration of Dr. Armen Henderson 17-1 Declaration of Dr. Armen Henderson

DE 25 Order Granting in part Plaintiffs' Emergency Motion for a Temporary Restraining Order

DE 27 Motion for Scheduling Order

DE 30 Defendants’ Notice of Compliance with Paragraph Two of Order

DE 35 Defendants’ Supplemental Brief on Habeas Relief

DE 36 Plaintiffs’ Supplemental Brief in Support of Habeas Relief for Named Plaintiffs
36-1 Affidavit of Maya Ragsdale

DE 37 Notice of Requested Information Regarding Named Plaintiffs

DE 41 Notice of Requested Information Regarding Named Plaintiffs

DE 47 Paperless Order

DE 52 Amended Scheduling Order

25
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

DE 55 Defendant’s Notice of Compliance with Paragraph Eight of Amended Scheduling Order
DE 59 Defendant’s Second Notice of Compliance with Paragraph Eight of Amended Scheduling Order
DE 65 Notice of Filing 65-1 Declaration of Director Daniel Junior 65-2 Declaration of Captain Safani Summons (DE 65-2) 65-3 Declaration of Director Edith Wright, RN (DE 65-3) 65-4 Declaration of Dr. Reggie Egins, MD (DE 65-4) 65-5 Declaration of Corporal Bridgett Johnson (DE 65-5) 65-6 Declaration of Officer Patricia Delancy (DE 65-6) 65-7 Declaration of Officer Dasmine Mayo 65-8 Declaration of Corporal Nicole Pieze 65-9 Declaration of Officer Beatrice Almonor 65-10 Declaration of Dr. Aileen Marty (DE 65-10) 65-11 SOP 090 Communicable Disease Temporary Housing Plan, April 3, 2020 65-12 Notiﬁcation to Inmates re: COVID-19, March 12, 2020 65-13 Inmate notiﬁcation re: free calls, March 16, 2020 65-14 Memo re: COVID-19 Preparedness, March 12, 2020 (DE 65-14) 65-15 Memo Directing Non-Essential Personnel to Work from Home, Mask Use, Social Distancing and Hygiene, April 3, 2020 65-16 Wellness Screening Memo, March 16, 2020 65-17 Second Wellness Screening Memo, March 23, 2020 65-18 Third Wellness Screening Memo, March 27, 2020 65-19 Law Enforcement Screening Letter, March 20, 2020 65-20 Photographs of entry temperature check 65-21 Script of Director’s Video re: COVID-19 Pandemic 65-22 Directive re: cleaning of high-touch area and enhanced cleaning procedure attaching janitorial handbook, March 10, 2020 65-23 Release statistics (DE 65-23) 65-24 Notiﬁcation to all inmates re: use of PPEs 65-25 Emails re: Social Distancing and Personal Hygiene, March 28, 2020, March 31,2020, April 9, 2020 65-26 Memo to all MDCR staff re: COVID-19 preparedness, March 12, 2020 (DE 65-26)
26
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

65-27 65-28 65-29 65-30 65-31
65-32
65-33 65-34 65-35 65-36
65-37
65-38
65-39 65-40
65-41 65-42 65-43 65-44 65-45 65-46 65-47 65-48 65-49
65-50

Inmate Handbook in 3 languages Inventory of Critical Items at MDCR Inventory of distribution to MWDC Sanitation Schedule at MWDC (DE 65-30) Directive from Captain Summons Regarding Paper Towels (DE 6531) Inmate Notiﬁcations re: Hygiene and Social Distancing Posted in three language in housing units with pictures for low-literacy inmates Cell Representative Meeting, March 19, 2020 March 30, 2020 command staff meeting COVID-19 Incident Command Center Response Line Eleventh Judicial Circuit Miami-Dade County, Florida, Administrative Order No. 20-04 (DE 65-36) Omnibus Order to Terminate Jail Sentences Early, April 3, 2020 (DE 65-37) Second Omnibus Order to Terminate Jail Sentences Early, April 17, 2020 (DE 65-38) Motion to Set Bond for Inmate Blanco, March 16, 2020 Motion for Release from Custody by Plaintiff Willis, April 7, 2020 (DE 65-40) Criminal Justice Information System Information (Swain) (DE 65-41) Criminal Justice Information System Information (Blanco) (DE 65-42) Criminal Justice Information System Information (Cruz) (DE 65-43) Criminal Justice Information System Information (Flores) (DE 65-44) Criminal Justice Information System Information (Hill) (DE 65-45) Criminal Justice Information System Information (Willis) (DE 65-46) Criminal Justice Information System Information (Bernal) (DE 65-47) SOP 19-005: Inmate Classiﬁcations (DE 65-48) Intake and Release Bureau SOP CL 20-001: Classiﬁcation Procedures (DE 65-49) Pride Safety Data Sheet

DE 66 Defendants’ Motion to Dismiss Count I of the Complaint for Failure to Exhaust Administrative Remedies
66-1 DSOP 15-001: Inmate Complaint/Grievance Process 66-2 Inmate Handbook 66-3 Inmate Orientation Statements 66-4 Declaration of Reynaldo Romero

27
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

66-5 Declaration of Terrence Mathews
DE 67 Defendants’ Response to Emergency Motion for Preliminary Injunction
DE 69 Joint Notice of Filing Unsealed Inspection Report as required by Court’s Paperless Order (ECF 64)
DE 70 Joint Notice of Filing Unsealed Inspection Report as Required by Court’s Paperless Order (ECF 64)
70-1 Metro West Detention Center (MWDC) Inspection Report, April 18, 2020, by Dr. Dushyantha Jayaweera & Dr. Hansel Tookes
DE 72 Defendants’ Second Notice of Compliance with Paragraph Eight of Amended Scheduling Order
DE 74 Defendants’ Witness and Exhibit List 74-1 Motion for Release 74-2 New York Times Article
DE 76 Plaintiff’s Exhibit and Witness List
DE 80 Plaintiffs’ Notice of Filing 80-1 Miami-Dade County Corrections and Rehabilitation Department Daily Jail Population Statistics 80-2 03/12/2020 Miami-Dade Department of Corrections, Twitter post 80-3 03/12/2020 Doctors in NYC Hospitals, Jails, and Shelters Call on the City to Take More Aggressive Action to Combat the Spread of Coronavirus, Medium.com Editorial Article 80-4 03/16/2020 State Attorney Kathryn Rundle Twitter Post 80-5 03/20/2020 Miami-Dade Department of Corrections, Twitter post
80-6 Interim Guidance on Management of Coronavirus Disease 80-7 03/25/2020 Letter to Hon. Larry Hogan, Governor of Maryland 80-8 03/27/2020 Miami-Dade Corrections and Rehabilitation
Department Press Release 80-9 04/03/2020 State Attorney Kathy Rundle, Miami-Dade County’s
“Prosecutors, Public Defenders & Courts Enact COVID-19 Early Jail Release Plan 18 To Be Released
28
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

80-10
80-11
80-12 80-13 80-14 80-15 80-16 80-17 80-18 80-19 80-20 80-21 80-22 80-23 80-24 80-25 80-26 80-27 80-28 80-29 80-30 80-31 80-32 80-33 80-34 80-35

Miami-Dade County Corrections and Rehabilitation Department Daily Jail Population Statistics Miami-Dade County Corrections and Rehabilitation Department Daily Jail Population Statistics Correspondence from Deondre Willis 04/04/20 Email from Dr. Aillen Marty Declaration of Dr. Jonathan Louis Golob Declaration of Jaime Meyer Declaration of Dr. Marc Stern Declaration of Ranit Mishori, MD Declaration of Robert B. Greiﬁnger Declaration of Dr. Chiao Declaration of Dr. Carlos Franco-Paredes Declaration of Dr. Fred Rottnek Declaration of Dr. Arment Henderson Declaration of Anthony Swain Declaration of Winifred Hill Declaration of Alan Blanco Declaration of Deondre Willis Declaration of Bayardo Cruz Declaration of Ronniel Flores Declaration of Peter Bernal Declaration of Jacqueline Ebert Declaration of Pedro J. Greer, Jr. Declaration of Dr. Aileen Marty, MD Supplemental Declaration of Dr. Pedro Greer, Jr. Supplemental Declaration of Fred Rottnek Declaration of Carlos Franco- Paredes

DE 81 Plaintiffs’ Notice of Filing 81-1 Declaration of Adriano Nese 81-2 Declaration of Andre Smith 81-3 Declaration of Antwan Devon Lee 81-4 Supplemental Declaration of Deondre Willis 81-5 Declaration of Frankie Sierra

DE 84 Motion for Leave to File Motion to Convent Three-Judge Panel and to Exceed Page Limit

29
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

DE 85 Plaintiffs’ Combined Reply in Support of Motion for Preliminary Injunction and Motion for Convening of Three-Judge Panel
DE 86 Defendants’ Notice of Compliance with Paragraph Eight of Amended Scheduling Order
DE 87 Defendants’ Amended Notice of Compliance with Paragraph Eight of Amended Scheduling Order
DE 88 Paperless Order
DE 90 Defendants’ Notice of Compliance with Paperless Order 90-1 April 20, 2020 Daily Court Order Transmittal Receipt Log 90-2 April 21, 2020 Daily Court Order Transmittal Receipt Log 90-3 Sample of Orders Authorizing Release
DE 91 Defendants’ Reply in Further Support of Their Motion to Dismiss Count I of the Complaint for Failure to Exhaust and Administrative Remedies
DE 92 Notice of Filing 92-1 Supplemental Declaration of Director Edith Wright, RN 92-2 Supplemental Declaration of Director Daniel Junior 92-3 Supplemental Declaration of Dr. Reggie Egins, MD
DE 93 Paperless Order
DE 94 Notice of Filing 94-1 Eleventh Circuit Covid-19 Emergency Procedures for Courtroom 4-1 94-2 Administrative Order No. 20-03 94-3 Administrative Order No. 20-04
DE 95 Plaintiffs’ Notice of Filing in Support of the Motion for Preliminary Injunction (ECF No. 3)
95-1 Declaration of Maya Ragsdale 95-2 Emergency Motion to Reduce Bond
DE 96 Paperless Minute Entry
30
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

DE 97 Paperless Minute Entry DE 99 Notice of Compliance DE 100 Order Granting in Part and Denying in Part Plaintiffs’ Emergency Motion
for a Preliminary Injunction DE 101 Notice of Appeal DE 102 Defendants’ Opposed Emergency Motion to Stay Pending Appeal
31
APPELLANTS’ OPPOSED MOTION TO STAY INJUNCTION PENDING APPEAL

 
 No. 20-11622
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ANTHONY SWAIN, ALEN BLANCO, BAYARDO CRUZ, RONNIEL MARTINEZ-FLORES, WINFRED HILL, DEONDRE WILLIS, PETER BERNAL, INDIVIDUALLY AND ON BEHALF
OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Appellees,
v.
DANIEL JUNIOR, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE MIAMI-DADE CORRECTIONS AND REHABILITATION DEPARTMENT, AND MIAMI-DADE COUNTY,
Defendants-Appellants.
On Appeal from the United States District Court for the Southern District of Florida, No. 1:20-cv-21456 (Kathleen M. Williams, J.)
APPELLEES’ OPPOSITION TO EMERGENCY MOTION TO STAY INJUNCTION PENDING APPEAL

LIDA RODRIGUEZ-TASEFF DLA PIPER LLP (US) 200 SOUTH BISCAYNE BLVD., STE 2500 MIAMI, FLORIDA 33131 (305) 423.8525 LIDA.RODRIGUEZ-TASEFF@DLAPIPER.COM

ALEC KARAKATSANIS (Counsel of record) CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 20009 (202) 681-2409 alec@civilrightscorps.org

May 1, 2020

CERTIFICATE OF INTERESTED PERSONS Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit Rule 26.1-1, Appellees Anthony Swain, Alen Blanco, Bayardo Cruz, Ronniel Martinez-Flores, Winfred Hill, Deondre Willis, and Peter Bernal certify that the appellants’ certificate of interested persons is complete.
/s/ Alec Karakatsanis Alec Karakatsanis (Counsel of record)
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TABLE OF CONTENTS
Page CERTIFICATE OF INTERESTED PERSONS.........................................................i
TABLE OF AUTHORITIES ....................................................................................iv
INTRODUCTION AND ABSENCE OF EMERGENCY TO STAY THE DISTRICT COURT’S ORDER..............................................................1
BACKGROUND .......................................................................................................2
STANDARD OF REVIEW .......................................................................................5
ARGUMENT .............................................................................................................6
I. DEFENDANTS HAVE NOT MADE A “STRONG SHOWING” OF LIKELIHOOD OF SUCCESS ON THE MERITS.......................................................6
A. The District Court Correctly Concluded That Plaintiffs Are Likely To Prevail On Their Section 1983 Claim ...........................6
1. The district court correctly concluded that defendants have shown deliberate indifference to the serious and unreasonable risk of ongoing confinement in current conditions ..............................................6
2. The district court did not abuse its discretion in ruling that plaintiffs need not prove municipal liability at this juncture .............................................................12
3. Defendants’ exhaustion argument fails.....................................16
a. The district court did not abuse its discretion in declining to address exhaustion at this stage ................................................................................16
b. Exhaustion is not required ..............................................17
II. DENIAL OF A STAY WOULD NOT CAUSE IRREPARABLE INJURY......................20
III. THE BALANCE OF HARMS AND PUBLIC INTEREST DO NOT FAVOR A STAY............................................................................................................21
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CONCLUSION ........................................................................................................22 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
- iii -

TABLE OF AUTHORITIES

CASES

Page(s)

Ancata v. Prison Health Services, Inc., 769 F.2d 700 (11th Cir. 1985) ..................14

Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378 (2015)....................13

Brown v. Plata, 563 U.S. 493 (2011)...................................................................9, 14

Caldwell v. Warden, FCI Talladega, 748 F.3d 1090 (11th Cir. 2014)......................7

City of Canton v. Harris, 489 U.S. 378 (1989)........................................................15

Connick v. Thompson, 563 U.S. 51 (2011)..............................................................15

Cooper v. Dillon, 403 F.3d 1208 (11th Cir. 2005) ..................................................13

Dang ex rel. Dang v. Sheriff, Seminole County, 871 F.3d 1272 (11th Cir. 2017) ...............................................................................................7

Democratic Executive Committee of Florida v. Lee, 915 F.3d 1312 (11th Cir. 2019) ...............................................................................................6

Denno v. School Board of Volusia County, Florida, 218 F.3d 1267 (11th Cir. 2000) .......................................................................................12, 15

Ex Parte Young, 209 U.S. 123 (1908) .....................................................................13

Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir. 1980) .....................................13

Farmer v. Brennan, 511 U.S. 825 (1994)................................................................10

Fletcher v. Menard Correctional Center, 623 F.3d 1171 (7th Cir. 2010) ..............................................................................................................18

Georgia Muslim Voter Project v. Kemp, 918 F.3d 1162 (11th Cir. 2019) ..............................................................................................................20

Grech v. Clayton County, 335 F.3d 1326 (11th Cir. 2003) .....................................12

Helling v. McKinney, 509 U.S. 25 (1993) ...........................................................7, 10

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Holloman ex rel. Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004) ..............................................................................................................14
McMillian v. Johnson, 88 F.3d 1573 (11th Cir. 1996) ............................................15 McNeil v. Community Probation Services, Inc., 945 F.3d 991 (6th Cir.
2019) ..............................................................................................................13 Miranda v. County of Lake, 900 F.3d 335 (7th Cir. 2018) ........................................7 Monell v. Department of Social Services, 436 U.S. 658 (1978)..............................12 Moore v. Urquhart, 899 F.3d 1094 (9th Cir. 2018).................................................13 Nken v. Holder, 556 U.S. 418 (2009) ........................................................................5 Odebrecht Constrution, Inc. v. Secretary, Florida Department of
Transportation, 715 F.3d 1268 (11th Cir. 2013)...........................................22 Porter v. Ogden, 241 F.3d 1334 (11th Cir. 2001) ...................................................16 Robinson v. Attorney General, 2020 WL 1952370 (11th Cir. Apr. 23,
2020) ............................................................................................................1, 6 Ross v. Blake, 136 S. Ct. 1850 (2016) ...............................................................17, 18 Thakker v. Doll, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020) ..............................10 Valentine v. Collier, 2020 WL 1934431 (5th Cir. April 22, 2020) .........................19 Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244 (11th Cir. 2016).........................17
STATUTORY PROVISIONS 18 U.S.C. §3626.......................................................................................................11
OTHER AUTHORITIES Delegation of Powers to the Department of Corrections and
Rehabilitation, Administrative Order No. 9-22 (July 23, 2002), http://www.miamidade.gov/aopdfdoc/aopdf/pdffiles/AO922.pdf .............................................................................................................15
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INTRODUCTION AND ABSENCE OF EMERGENCY TO STAY THE DISTRICT COURT’S ORDER
Plaintiffs, pre-trial detainees at the Metro West Detention Center in Miami, Florida, filed suit to require defendants to provide reasonable safeguards to protect their health and safety during the COVID-19 pandemic. The district court concluded that plaintiffs (1) are likely to succeed on their claim that defendants’ failure to take adequate steps to prevent and minimize a COVID-19 outbreak inside the jail reflects deliberate indifference to their constitutional rights, and (2) will suffer irreparable harm absent a preliminary injunction. The court thus issued a preliminary injunction requiring defendants to implement basic measures that the Center for Disease Control (CDC) has recommended for correctional institutions—such as providing adequate soap and cleaning products—to reduce transmission of the virus as the court gives fuller consideration to the merits of plaintiffs’ constitutional claims.
While asserting that they are already implementing nearly all of the measures the district court required (and that they would do so on their own accord), Motion 20; R.102 at 2, defendants seek an emergency stay pending appeal. But as this Court recently observed, “[a] litigant who agrees with the substance of an order faces a steep uphill battle in seeking to have that order stayed on appeal.” Robinson v. Attorney General, 2020 WL 1952370, at *9 (11th Cir. Apr. 23, 2020). And not surprisingly given their claim of already being in compliance, defendants do not meaningfully explain how the provisions in the district court’s order cause them
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harm or create an emergency. By contrast, the harm from staying the injunction is substantial: Absent the minimal safeguards the district court ordered, COVID-19 will continue to spread throughout the jail at exponential rates, posing a serious risk of harm. Indeed, since the lawsuit was filed, the number of infected detainees has gone from 0 to 163. There is no sound basis to conclude that the district court abused its discretion in granting temporary relief to protect detainees’ health and safety.
BACKGROUND On April 5, 2020, seven individuals detained at Metro West Detention Center filed this putative class action, alleging that defendants are violating the Fourteenth Amendment rights of pre-trial detainees in their custody. The named plaintiffs sought a TRO and preliminary injunction. In support, plaintiffs presented evidence that defendants’ response to the threat of a COVID-19 outbreak at the jail is woefully inadequate and reflects deliberate indifference to the risk that COVID-19 poses, especially those who are medically vulnerable. Specifically, the evidence showed that detainees at Metro West are “packed” into dormitory-style cells housing over sixty people, and in which social distancing is impossible—indeed, the evidence showed that detainees sleep in bunks less than an arm’s length from the next and are forced to closely congregate in shared areas to receive and eat meals and use the handful of shared toilets and showers. E.g., R.3-6 ¶¶8, 15; R.3-7 ¶7; R.81-5 ¶¶1519; R.81-4 ¶¶13-16. The evidence also showed the defendants have failed to:
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• provide detainees sufficient access to soap, paper towels, toilet paper, cleaning products, and laundering facilities to enable detainees to practice good hygiene and disinfect high-touch surfaces between uses, R.81-1 (Ex. 37-11) ¶¶18-22; R.3-8 ¶¶7-8, 11; R.3-4 ¶¶14-15;
• provide detainees and staff with sufficient access to personal protective equipment (such as masks) to limit transmission, R.3-4 ¶¶3, 7, 15; R.3-8 ¶¶7-8, 13; R.3-10 ¶¶9-10;
• implement policies to screen and quarantine new detainees who may have been infected with COVID-19, R.3-6 ¶¶7-9; R.3-9 ¶5;
• separate individuals suspected of being infected with COVID-19 from those who were not, R.3-4 ¶¶5, 10; R.3-6 ¶¶5-7; and
• adequately respond to the medical needs of detainees, forcing those with symptoms to wait up to a week to be seen by medical staff, R.3-6 ¶¶5-7; R.3-9 ¶4; R.3-10 ¶¶7-8.
In short, the evidence showed that defendants had failed to implement even the most
basic recommendations from the CDC and public-health experts on how to mitigate
the COVID-19 infection in correctional facilities. R.3-14; R.11-1.
On April 6 and 7, 2020, the district court held telephonic hearings on
plaintiffs’ request for a TRO. The parties agreed on many of the TRO’s terms and
presented argument on disputed ones. On April 7, the district court issued a TRO,
which included the agreed-upon terms and largely adopted defendants’ less-
restrictive language on disputed terms. R.25.
Despite the TRO, however, defendants have failed to effectively implement
basic health measures, see R.100 at 17-19, even as the virus has spread rapidly within
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the jail: By April 19, 15 detainees had tested positive. But by April 28, 163 had tested positive—a more than 10-fold increase in less than 10 days. R.100 at 4.
On April 27 and 28, the district court held a two-day preliminary injunction hearing. The court received declarations from over twenty detainees and four medical experts supporting plaintiffs’ motion. The court also received an inspection report from two independent medical experts who toured Metro West. Over plaintiffs’ strenuous objections, the tour was on a preset date and limited to a handful of predetermined cells at Metro West. Numerous declarations submitted to the district court, moreover, detailed steps that defendants hurriedly took shortly before the inspection to make those cells appear safe and sanitary during the inspection, including painting over mold, repairing broken showers, moving furniture, and moving a significant number of detainees out of only those cells. See R.81-1 (Ex. 37-17) ¶¶17-19. Even so, the experts concluded that Metro West was overcrowded and required an “urgent” significant population reduction in order to allow social distancing necessary to mitigate a serious risk of the infection spreading. R.70-1.
On April 29, the district court issued a preliminary injunction after finding that the record indicates defendants have shown “deliberate indifference to a serious risk of harm to Plaintiffs.” R.100 at 37. The court noted, among other things, that plaintiffs’ evidence suggests defendants have not taken adequate steps to slow or stop the spread of COVID-19, R.100 at 17-19, including adequate steps to ensure
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detainees can “achieve meaningful social distancing,” which “experts agree … is a critical step in preventing or flattening the rate of contagion,” R.100 at 37. The court also questioned whether defendants would have implemented the measures required by the TRO in the absence of a TRO, as defendants claimed. R.100 at 40. The court’s preliminary injunction—with few exceptions—merely extends the provisions of its TRO for 45 days. Compare R.25 with R.100 at 49-52. The court denied plaintiffs’ request for habeas relief for a subclass of the most medically vulnerable detainees. R.100 at 1.
STANDARD OF REVIEW A stay pending appeal is an “‘intrusion into the ordinary processes of administration and judicial review,’ and accordingly ‘is not a matter of right, even if irreparable injury might otherwise result to the appellant.’” Nken v. Holder, 556 U.S. 418, 427 (2009). The applicant must establish (1) “a strong showing that it is likely to succeed on the merits,” (2) that it “will be irreparably injured absent a stay,” (3) that a stay will not “substantially injure the other parties interested in the proceeding,” and (4) that “the public interest lies” in its favor. Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1317 (11th Cir. 2019). This Court reviews the grant of a preliminary injunction under the “deferential abuse of discretion standard.” Robinson, 2020 WL 1952370, at *3. Accordingly,
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“the narrow question” presented by the first stay factor is whether defendants have
made “a strong showing that the district court abused its discretion.” Id.
ARGUMENT I. DEFENDANTS HAVE NOT MADE A “STRONG SHOWING” OF LIKELIHOOD
OF SUCCESS ON THE MERITS A. The District Court Correctly Concluded That Plaintiffs Are
Likely To Prevail On Their Section 1983 Claim 1. The district court correctly concluded that defendants have
shown deliberate indifference to the serious and unreasonable risk of ongoing confinement in current conditions The essence of plaintiffs’ claims for relief in this lawsuit is that defendants
have violated the Fourteenth Amendment rights of pretrial detainees in defendants’
custody by showing deliberate indifference to detainees’ health and safety. To
establish deliberate indifference, a plaintiff must prove: (1) that the defendant
“actually (subjectively) knew that an inmate face[s] a substantial risk of harm,” and
(2) that the defendant “disregarded that known risk by failing to respond to it in an
(objectively) reasonable manner.” Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1100 (11th Cir. 2014) (cleaned up).1
1 There is a circuit split on when a presumptively innocent pretrial detainee must satisfy the subjective component. Compare, e.g., Dang ex rel. Dang v. Sheriff, Seminole Cty., 871 F.3d 1272, 1279 n.2 (11th Cir. 2017), with, e.g., Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018). Although plaintiffs continue to believe that the Eleventh Circuit joined the wrong side of that split, that issue is irrelevant
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Here, defendants do not dispute that the substantial risk of serious harm presented by COVID-19 satisfies the objective component of a deliberateindifference claim. See Helling v. McKinney, 509 U.S. 25, 35 (1993) (Eighth Amendment protects against exposure to “an unreasonable risk of serious damage to … future health”). Defendants argue only that the district court erroneously held that they have displayed deliberate indifference. Their argument misunderstands the law and ignores the factual record supporting the court’s order.
First, defendants’ subjective knowledge of a risk of serious harm is indisputable. COVID-19 is a highly infectious, deadly disease. R.100 at 6-8; R.314 ¶¶22-24; R.11-1 ¶¶10-12. And defendants know that social distancing of at least six feet is an absolutely critical component of efforts to stop the spread of this virus. R.100 at 6-7 (describing “unrebutted testimony”); see also R.100 at 34; R.80-35 at ¶19 (“[F]rom an epidemiological perspective, ensuring that all detainees in Metro West Detention Center can socially distance from one another is the only way to prevent further, essentially uncontrolled, spread of the virus.”). Defendants conceded this point, writing in a memorandum to jail staff: “Now more than ever, it is important that everyone practice strict social distancing even while wearing the protective mask.” R.65-15 at 1. But social distancing will not be possible in the jail
here because the evidence demonstrates Plaintiffs are likely to prevail under either standard.
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unless the population is reduced. R.100 at 35. The joint report of independent infectious disease experts—one recommended by plaintiffs and one by defendants— concluded that social distancing is impossible given the current population, and it issued an “urgent” recommendation to immediately reduce the population to prevent further transmission of the disease. R.70-1.
Second, the district court correctly concluded that plaintiffs met their burden to show that defendants have been deliberately indifferent to the risk imposed on detainees by current jail conditions because (a) defendants know that the jail population remains too high to practice social distancing and (b) defendants have not implemented “other measure[s] to achieve meaningful social distancing.” R.100 at 35. As to the former, defendants complain that the overcrowding is out of their control, while as to the latter, defendants complain that the district court did not identify “specific social distancing strategies that Metro West should have employed,” Motion 13. The former point is legally wrong and the latter point is factually wrong.
Starting with the latter: The district court specifically found that defendants routinely fail to enforce feasible social distancing, including when inmates line up to receive food and eat together in their unit, when inmates line up to be counted, and when inmates line up outside the clinic to receive medication. See Dkt.100 at 37-38; see also id. at 14-15, 16 (citing record evidence). Defendants are not excused
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from making adequate effort to achieve meaningful social distancing simply because full social distancing is not feasible with the current overcrowding.
As to the former point, defendants contend, as noted, that they cannot be deliberately indifferent because they do not have control over the jail’s overcrowding. See Motion 13 (“[T]he County … is unable to release inmates without a court order, which must be obtained through state criminal court.”); see also R.67 at 20; id. at 21 (complaining that “social distancing at Metro West is difficult to achieve for reasons largely beyond the County’s control”). That is not the law. In Brown v. Plata, 563 U.S. 493 (2011), the Supreme Court held that if a prison population is such that reduction is the only way to cure a constitutional violation—i.e., if adequate care is “impossible” without a reduction—then an injunction may issue even if the defendant’s affirmative conduct did not cause the overcrowding, see id. at 521, 526-529.
Under defendants’ position, if defendants were told that a gas line at Metro West was likely to explode within a week and potentially kill those detained inside, the Constitution would offer the detainees no protection against defendants simply throwing up their hands and claiming they have no discretion to release them. In other words, federal courts would be powerless to protect confined individuals even against a threat of death so long as the jailer was not empowered under state law to
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take steps to move or release the individuals. The Constitution does not sanction that cruel result.
As another district court observed in a similar proceeding during these unprecedented times: “Respondents’ Facilities are plainly not equipped to protect Petitioners from a potentially fatal exposure to COVID-19. While this deficiency is neither intentional nor malicious, should we fail to afford relief to Petitioners we will be a party to an unconscionable and possibly barbaric result.” Thakker v. Doll, 2020 WL 1671563, at *9 (M.D. Pa. Mar. 31, 2020); Farmer v. Brennan, 511 U.S. 825, 845 (1994) (holding subjective factor in a prospective relief case depends on “current attitudes and conduct” even if a defendant did not create the risk and learns of the ongoing risk after the litigation); id.at 846 n.9 (holding that “prison officials who state during the litigation that they will not take reasonable measures to abate an intolerable risk of which they are aware” exhibit “deliberate indifference”); Helling v. McKinney, 509 U.S. 25, 36 (1993) (prohibiting prison conditions in which “the risk . . . is not one that today’s society chooses to tolerate”). Here, of course, our society has shut down nearly entirely to accomplish social distancing because it deems the risk of COVID-19 infection to be intolerable. In a case seeking prospective relief, the ongoing enforcement of the confinement of individuals with the knowledge that they are unable to practice medically prescribed social distancing at current population levels and are therefore exposed to a risk that society has
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deemed intolerable is “deliberately indifferent” under Helling and Farmer. Id. at 846 n.9.
Unfortunately, the Prison Litigation Reform Act does not allow the district court to enter (on plaintiffs’ §1983 claim) the only remedy that could fully correct the constitutional violations—i.e., release of some detainees—unless less intrusive measures are attempted first and unless the court asks the chief judge of this Court to convene a three-judge tribunal. 18 U.S.C. §3626(a)(3). Given that, the district reasonably imposed a less intrusive remedy and set a briefing schedule on plaintiffs’ motion to convene the three-judge tribunal. This less intrusive remedy was based not only on the district court’s finding that defendants’ ongoing confinement of plaintiffs under conditions that expose them to a serious risk of COVID-19 infection constituted deliberate indifference, but also on evidence of “problematic” compliance with the court’s TRO. R.100 at 17. In particular, dozens of mutually corroborating sworn declarations from detainees (in many different housing units covering conditions for hundreds of prisoners) demonstrated that defendants are not providing the minimal protections required by the TRO and by their own policies. See R.100 at 12-19. Defendants’ failure to comply with the TRO was also evinced by the 994% increase in inmate infections in Metro West between April 5 and April 29. See R.100 at 34.
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In sum, the district court did not abuse its discretion in finding that plaintiffs are likely to succeed on their claim that defendants exhibit deliberate indifference to a known risk by continuing to confine them in conditions that prevent medically prescribed social distancing. Nor did the court err in entering a preliminary injunction that maintains the status quo pending further adjudication of plaintiffs’ claim and that requires the less intrusive measures that are a necessary prerequisite to granting fuller relief if plaintiffs ultimately prove that such relief is warranted.
2. The district court did not abuse its discretion in ruling that plaintiffs need not prove municipal liability at this juncture
Under Monell v. Department of Social Services, 436 U.S. 658 (1978), local governments may be held liable for constitutional torts that result from official government policy or an unofficial custom or practice, Grech v. Clayton Cty., 335 F.3d 1326, 1329 (11th Cir. 2003) (en banc). An unofficial custom or practice can be shown through “the actions of an official fairly deemed to represent government policy, or a custom or practice so pervasive and well-settled that it assumes the force of law.” Denno v. Sch. Bd. of Volusia Cty., Fla., 218 F.3d 1267, 1276 (11th Cir. 2000). The district court did not err in concluding that plaintiffs do not need to “prove” an unofficial custom or practice to receive preliminary relief. R.100 at 33. At this stage, plaintiffs need only demonstrate that they are likely to establish an unofficial custom or practice that gave rise to their injury. Plaintiffs have done so.
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First, Monell is relevant only to plaintiffs’ claims against Miami-Dade
County. Plaintiffs have also sued defendant Daniel Junior in his official capacity.
Usually, claims against a municipal official in an official capacity are treated as
claims against the municipality. But there is an important exception: A municipal
official is deemed to also act for the state when state law requires the official to take
the relevant action. Familias Unidas v. Briscoe, 619 F.2d 391, 398-402, 404 (5th
Cir. 1980). Regardless, it has been the law since Ex parte Young, 209 U.S. 123 (1908),2 that the official can be enjoined from federal constitutional violations.3 A
classic example of this principle is a sheriff or jailor enforcing state court orders.
McNeil v. Community Probation Servs., Inc., 945 F.3d 991, 996 (6th Cir. 2019);
Moore v. Urquhart, 899 F.3d 1094, 1103 (9th Cir. 2018) (subsequent history
omitted).
Here, defendant Junior argues that he had “no discretion” to refrain from
enforcing state court orders that result in overcrowding. R.67 at 20; Motion 13. But
2 When the local official is also the relevant final policymaker, the official’s decision to follow state law can also subject the municipality to liability. See, e.g., Cooper v. Dillon, 403 F.3d 1208, 1223 (11th Cir. 2005) (“While the unconstitutional statute authorized [the municipal official] to act, it was his deliberate decision to enforce the statute that ultimately deprived [the plaintiff] of constitutional rights and therefore triggered municipal liability.”).
3 Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015) (“The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England. . . . It is a judge-made remedy . . . .”).
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it does not matter that defendants have no discretion under state law to release plaintiffs—if a prisoner release order is necessary to cure federal constitutional violations, a century of precedent empowers a federal tribunal to enjoin the official responsible for enforcing the constitutional violation and with the power to remedy it. See Plata, 563 U.S. at 500-501 (requiring prisoner release order against executive responsible for state prisons). Monell has nothing to say about that, and this alone is sufficient basis to reject defendants’ argument.
Second, as to Miami-Dade County’s liability directly, the county is responsible for the policies and practices of officials to whom relevant policymaking authority is delegated—such as Junior. See Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1292 (11th Cir. 2004). Defendants’ evidence shows that the county’s policymakers delegated final policymaking authority over day-to-day affairs of the jail to him. Defendants, for example, repeatedly cite directives and orders that he issued to change jail policies. E.g., R.65-14; R.65-18; R.65-24; see also Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 706 (11th Cir. 1985). This makes sense because the county issued an order delegating “[a]ll duties and functions which pertain to the … incarceration, … custody and release of prisoners [in the] County jail[s]” to Junior. Delegation of Powers to the Department of Corrections and Rehabilitation, Administrative Order No. 9-22 (July 23, 2002).
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Defendants do not seriously contest this evidence. Indeed, they appear not to dispute that Junior’s actions are “fairly deemed to represent government policy,” Denno, 218 F.3d at 1276. They instead suggest, without citation, that the Mayor and the Board of County Commissions are the county’s exclusive policymakers. Motion 15. However, because “final policymaking authority may be shared,” McMillian v. Johnson, 88 F.3d 1573, 1578 (11th Cir. 1996), the fact that the Mayor and the board members are final policymakers does not preclude the possibility that Junior is as well. Defendants have shown no reason why plaintiffs will not prevail on the argument that the county is liable for Junior’s deliberate indifference.
Plaintiffs are also likely to establish municipality liability based on the widespread failures to implement basic protections. As discussed, these failures are pervasive and have been ongoing for weeks. This consistent failure to follow purported policies strongly suggests deliberate indifference. See Connick v. Thompson, 563 U.S. 51, 62 (2011); see also City of Canton v. Harris, 489 U.S. 378, 394-395 (1989) (“policy of inaction” in light of notice that policy will cause constitutional violations “is the functional equivalent of a decision by the city itself to violate the constitution”). Defendants dismiss plaintiffs’ evidence of the county’s failure to follow its policies as “anecdotal,” Motion 15, but that characterization is belied by the record.
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3. Defendants’ exhaustion argument fails a. The district court did not abuse its discretion in declining to address exhaustion at this stage
In opposing plaintiffs’ preliminary-injunction request, defendants “incorporated … by reference” their motion to dismiss argument that plaintiffs’ failed to exhaust under the PLRA. R.67 at 12. Faced with an attempt to incorporate a new motion into an already over-length response brief raising numerous issues, the district court held that “Defendants have not properly raised the issues in the motion to dismiss with the Court by attempting to incorporate their entire motion in their Response.” R.100 at 28 n.14. On this basis alone, the merits panel will not reach defendants’ exhaustion arguments. Porter v. Ogden, 241 F.3d 1334, 1340 (11th Cir. 2001) (“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.” (quotation marks omitted)). That argument thus provides no basis for a stay.
Even if defendants had properly raised exhaustion, the district court did not err in reserving judgment on that argument until briefing on defendants’ motion to dismiss is completed on May 12. Disputing that, defendants argue that “exhaustion is a threshold matter that a court ‘must address’ before it may consider the merits.” Motion 16. But “the very idea of a preliminary injunction is … the need for speedy … action to protect a plaintiff’s rights before a case can be resolved on its merits.” Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1248 (11th Cir. 2016).
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b. Exhaustion is not required Even if the district court was required to consider an (improperly raised) exhaustion argument before granting preliminary relief, defendants’ argument that plaintiffs were required to exhaust grievance procedures lacks merit. Under the PLRA, “a prisoner need exhaust only ‘available’ administrative remedies.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). An administrative procedure is unavailable where it “operates as a simple dead end” and does not “provide any relief to aggrieved inmates.” Id. at 1859. That describes defendants’ grievance procedures. First, no grievance procedure is “available” for the urgent issues raised in this lawsuit. Defendants’ manual provides a timeline for resolving “emergency” or “medically related” grievances that can take in excess of two weeks. Hence, where, as here, individuals face emergencies that must be met immediately to prevent serious harm, defendants’ grievance procedures are not “available” to resolve those emergencies. Defendants argued below that the timing of the jail’s grievance procedures has nothing to do with the “availability” of a remedy. R.66 at 7. As they see it, even if the jail’s procedures provide no practical ability for a person to obtain redress (say, for example, a grievance that a person had been starved of food or water for three days), the grievance procedure is still “available” so long as a person could obtain
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food or water through a grievance heard a week or two in the future. This argument is both callous and nonsensical. As a sister circuit has said, “If it takes two weeks to exhaust a complaint that the complainant is in danger of being killed tomorrow, there is no ‘possibility of some relief’ and so nothing for the prisoner to exhaust.” Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1174 (7th Cir. 2010). Indeed, creating an “emergency” process that takes significant time is one of the main ways that jail officials could create a “dead end” that excuses exhaustion. Ross, 136 S. Ct at 1859.
The Supreme Court’s decision in Ross rejects defendant’s formalistic argument that the timing of an administrative process has nothing to do with its “availability.” The Supreme Court explained that the term “available” in the text of PLRA “has real content.” 136 S. Ct. at 1858. “[T]he ordinary meaning of … ‘available,’” the Court elaborated, “is ‘capable of use for the accomplishment of a purpose.’” Id. Here, if plaintiffs’ goal was compliance with CDC guidelines so that they could disinfect their cells, wash their hands, and maintain medically required social distancing before becoming infected with a rapidly spreading serious disease, the two-week grievance procedure is not “capable of use for the accomplishment” of that purpose, id., in any meaningful sense of those words. See Fletcher, 623 F.3d at 1173.
Defendants cite Valentine v. Collier, 2020 WL 1934431 (5th Cir. Apr. 22, 2020), which conflicts with Fletcher. Fletcher offers the more compelling
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explanation of the meaning of “available.” Valentine based its holding on the speculation that “[r]elief remains possible” so long as a grievance procedure does not bar prompt response to a grievance. Valentine, 2020 WL 1934431, at *7. But that distorts the meaning of “available” and ignores precedent that requires a person to wait for “available” remedies to conclude, meaning that even if it is theoretically possible for officials to respond to any grievance more quickly than they are required to do so, a prisoner would have no available remedy because they would not be permitted to sue until the allowed response period actually did expire.
Finally, even if defendants’ procedures were capable of providing the relief plaintiffs sought, plaintiffs lacked access to the grievance forms that defendants require, which is a complete excuse to exhaustion. Defendants ran out of such forms in multiple housing units, and jail staff told plaintiffs—who repeatedly asked for more—that no more forms were available. E.g., R.80-25 ¶18; R.80-27 ¶15; R.8029 ¶14. The record was unrebutted on this point; the declaration that defendants filed to suggest that there had not been a shortage of forms in the named plaintiffs’ housing unit was from an individual who had no basis to know the facts because the individual was out of the office on COVID-19 quarantine during the entire relevant time period. R.65-7 ¶9.
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II. DENIAL OF A STAY WOULD NOT CAUSE IRREPARABLE INJURY “[F]ailure to show that the injunction would cause irreparable injury is an
adequate and independent basis for denying the motion to stay pending appeal.” Ga. Muslim Voter Project v. Kemp, 918 F.3d 1162, 1268 (11th Cir. 2019) (Pryor, J., concurring). Here, defendants’ own admissions demonstrate they will not suffer any irreparable injury pending appeal. Defendants have fervently contended that they have already implemented and maintained virtually all of the measures in the district court’s order. R.67 at 27; R.102 at 2 (“It is unrefuted in the record that Defendants will not cease any of the processes and protections put in place to protect inmates from COVID-19 in the absence of an injunction[.]”). If, as Defendants contend, they are already carrying out those measures and intend to continue doing so, the district court’s injunction cannot have any “appreciable impact on them.” R.100 at 43. Moreover, despite being subject to a TRO containing nearly all of the same provisions, defendants do not point to any harm that has resulted. To the extent defendants now express a new worry that these same protections will “prevent[] Defendants from shifting resources and undertaking new measures in response to a constantly evolving public health crisis,” R.102 at 2, defendants are free to move the district court to modify the
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terms of the preliminary injunction. There is no reason to think that the district court would deny defendants flexibility on a showing of need.4 III. THE BALANCE OF HARMS AND PUBLIC INTEREST DO NOT FAVOR A STAY
The remaining stay factors weigh against a stay. As the district court found, the balance of harms is decidedly not in defendants’ favor. R.100 at 42-43. While defendants have not shown why the provisions in the district court’s order pose any non-speculative and tangible harm, plaintiffs have shown that COVID-19 is present in the jail, that the virus is rapidly spreading, and that if they contract the virus, they are at considerable risk of serious illness or death. R.11-1.
The public interest also weighs in plaintiffs’ favor. Metro West is not cut off from the rest of the world; corrections staff enter and leave the jail every day. Efforts to minimize the spread of COVID-19 in the jail “advances the public interest by reducing the chance of community spread in Miami-Dade County linked to COVID-19 cases” at the jail. R.100 at 43. Further, the public has no
4 In defendants’ motion, they suggest that the district court’s preliminary injunction imposes a social distancing requirement “beyond anything the CDC requires without regard to the resource allocation among the various responsibilities of the County.” Motion 17. Defendants fail to explain how. The injunction provides that defendants shall: “To the maximum extent possible considering [Metro West’s] current population level, provide and enforce adequate spacing of six feet or more between people incarcerated at Metro West so that social distancing can be accomplished.” R.100 at 49-50; R.1-06 at 11 (CDC guidelines). And again, defendants have claimed they are already implementing such measures.
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interest in the unconstitutional enforcement of the law. Odebrecht Const., Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d 1268, 1290 (11th Cir. 2013).
CONCLUSION The Court should deny defendants’ emergency motion to stay the district court’s preliminary injunction pending appeal.
Respectfully submitted,
/s/ Alec Karakatsanis Alec Karakatsanis (Counsel of record) CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 20009 (202) 681-2409 alec@civilrightscorps.org Lida Rodriguez-Taseff DLA Piper LLP (US) 200 South Biscayne Blvd., Ste 2500 Miami, Florida 33131 (305) 423.8525 lida.rodriguez-taseff@dlapiper.com
May 1, 2020
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CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(g)(1), the undersigned hereby certifies that this brief complies with the type-volume limitation of Fed. R. App. P. 27(d)(2)(A). 1. Exclusive of the exempted portions of the brief, the brief contains 5,149 words. 2. The brief has been prepared in proportionally spaced typeface using Microsoft Word for Office 365 in 14 point Times New Roman font. As permitted by Fed. R. App. P. 32(a)(7)(B), the undersigned has relied upon the word count feature of this word processing system in preparing this certificate.

May 1, 2020

/s/ Alec Karakatsanis Alec Karakatsanis (Counsel of record)

CERTIFICATE OF SERVICE I hereby certify that on this 1st day of May, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Eleventh Circuit using the appellate CM/ECF system. Counsel for all parties to the case are registered CM/ECF users and will be served by the appellate CM/ECF system.
/s/ Alec Karakatsanis Alec Karakatsanis (Counsel of record)

 
 Case: 20-11622 Date Filed: 05/05/2020 Page: 1 of 20
[PUBLISH] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT _________________________ No. 20-11622-C _________________________
ANTHONY SWAIN, et al. Plaintiffs - Appellees,
versus DANIEL JUNIOR, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department, and MIAMI-DADE COUNTY, FLORIDA
Defendants - Appellants. __________________________ On Appeal from the United States District Court for the Southern District of Florida __________________________ Before: WILSON, WILLIAM PRYOR and BRANCH, Circuit Judges. BY THE COURT: No part of our country has escaped the effects of COVID-19. It is thus not surprising that several inmates at the Metro West Detention Center (“Metro
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Case: 20-11622 Date Filed: 05/05/2020 Page: 2 of 20
West”)—the largest direct-supervision jail facility in the State of Florida—have tested positive for the virus. This appeal concerns the adequacy of the measures implemented by Metro West to protect its prisoners from the spread of COVID-19.
On April 5, 2020, seven Metro West inmates filed a class action complaint challenging the conditions of the inmates’ confinement under 42 U.S.C. § 1983 and seeking habeas relief under 28 U.S.C. § 2241 for the named plaintiffs along with a “medically vulnerable” subclass of inmates.
At issue in this motion for a stay pending appeal is the preliminary injunction issued by the United States District Court for the Southern District of Florida on April 29, 2020, against defendants Miami-Dade County and Daniel Junior, the Director of the Miami-Dade Corrections and Rehabilitations Department (“MDCR”). The injunction requires the defendants to employ numerous safety measures to prevent the spread of COVID-19 and imposes extensive reporting requirements. Pursuant to Rule 8 of the Federal Rules of Appellate Procedure, we stay the injunction pending appeal and expedite the appeal.
I. MDCR, a department of Miami-Dade County, operates Metro West. When the first case of COVID-19 in Miami-Dade County was reported in early March
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Case: 20-11622 Date Filed: 05/05/2020 Page: 3 of 20
2020, MDCR began enacting measures to protect inmates. Those measures included cancelling inmate visitation; screening arrestees, inmates, and staff; and advising staff of use of protective equipment and sanitation practices. On March 23, 2020, the U.S. Centers for Disease Control and Prevention (“CDC”) issued the Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correction and Detention Facilities, (the “CDC Guidance”). MDCR reviewed the CDC Guidance and updated its practices. As the situation developed, MDCR continued to implement additional safety measures, including daily temperature screenings of all persons entering Metro West, establishing a “COVID-19 Incident Command Center and Response Line” to track testing and identify close contacts with the virus, developing a social hygiene campaign, and mandating that staff and inmates wear protective masks at all times. MDCR also implemented social distancing efforts, including staggering the dormitory bunks, requiring inmates to sleep head-to-toe to ensure further distancing, and instructing staff to encourage social distancing between inmates. The district court accepted as true that the defendants implemented these measures for purposes of issuing the preliminary injunction and did not resolve any factual disputes in favor of the plaintiffs.
On April 5, 2020, the plaintiffs filed a class action complaint on behalf of “all current and future persons detained at Metro West during the course of the
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Case: 20-11622 Date Filed: 05/05/2020 Page: 4 of 20
COVID-19 pandemic.” Among other deficiencies, the class action complaint alleged that the inmates at Metro West did not have enough soap or towels to wash their hands properly, waited days for medical attention, were “denied basic hygienic supplies” like laundry detergent and cleaning materials, and were forced to sleep only two feet apart. They sought declaratory and injunctive relief for violations of the Eighth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 on behalf of the entire class and immediate release from custody pursuant to 28 U.S.C. § 2241 on behalf of the named plaintiffs and the medically vulnerable subclass.
The district court entered a temporary restraining order (“TRO”) against the defendants on April 7, two days after the complaint was filed. Consistent with the TRO, the defendants screened all new arrestees and staff as they entered the facilities, enhanced cleaning and sanitation measures, made efforts to increase social distancing, issued masks to all staff and inmates, supplied paper towels in the restrooms, and quarantined inmates showing COVID-19 symptoms.
On April 29, following a telephonic evidentiary hearing, the district court entered a preliminary injunction against the defendants on the plaintiffs’ § 1983
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Case: 20-11622 Date Filed: 05/05/2020 Page: 5 of 20
claim.1 The preliminary injunction enjoins the defendants to:
• “Effectively communicate to all people incarcerated at [Metro West], including low-literacy and non-English speaking people, sufficient information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices to reasonably ensure that individuals are able to take precautions to prevent infection”;
• “To the maximum extent possible considering [Metro West’s] current population level, provide and enforce adequate spacing of six feet or more between people incarcerated at Metro West so that social distancing can be accomplished”;
• “Ensure that each incarcerated person receives, free of charge (1) an individual supply of soap, preferably liquid as recommended by the CDC, sufficient to allow frequent hand washing each day; (2) hand drying machines, or disposable paper towels as recommended by the CDC, and individual towels, sufficient for daily use; (3) an adequate supply of disinfectant products effective against the virus that causes COVID-19 for daily cleanings; and (4) an adequate supply of toilet paper sufficient for daily use”;
• “Provide reasonable access to showers and to clean laundry”;
• “Require that all MCDR staff wear personal protective equipment, including masks, and gloves when physically interacting with any person, and require that, absent extraordinary or unusual circumstances, a new pair of gloves is worn each time MDCR staff touch a different person; and require all inmate workers who are cleaning facilities or preparing food to follow this same protocol”;
1 The district court did not make a finding as to whether the defendants had complied with the TRO. We do note, however, that a report commissioned by the district court and prepared by experts for each party following a review of the facility and of the TRO appears to indicate that the defendants were in compliance with the TRO.
The district court also denied the plaintiffs’ requested habeas relief under § 2241 without prejudice.
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Case: 20-11622 Date Filed: 05/05/2020 Page: 6 of 20
• “Require that all MDCR staff regularly wash their hands with soap and water or use hand sanitizer containing at least 60% alcohol”;
• “Ensure access to proper testing for anyone displaying known symptoms of COVID-19 in accordance with CDC guidelines and for anyone who has come in contact with an individual who has tested positive for COVID-19”;
• “Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 receive adequate medical care and are properly quarantined, with continued access to showers, mental health services, phone calls with family, and communications with counsel; individuals identified as having COVID-19 or having been exposed to COVID-19 shall not be placed in cells normally used for disciplinary confinement absent emergency circumstances”;
• “Respond to all emergency (as defined by the medical community) requests for medical attention as soon as possible”;
• “Provide sufficient disinfecting supplies consistent with CDC recommendations in each housing unit, free of charge, so incarcerated people can clean hightouch areas or any other items in the unit between each use”;
• “Waive all medical co-pays for those experiencing COVID-19-related symptoms”;
• “Waive all charges for medical grievances during this health crisis”; and
• “Provide face masks for inmates at Metro West. The face masks must be replaced at medically appropriate intervals, and Defendants must provide inmates with instruction on how to use a face mask and the reasons for its use.”
The district court observed that the CDC’s Guidance “formed the basis” of
these requirements. In order to ensure compliance, it further ordered the
defendants to:
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• “Continue providing the Court with updated information regarding the number of staff and inmates who have tested positive for, or are being quarantined because of, COVID-19. These notices shall be filed every three days for the duration of [the order]; Defendants shall also continue to provide this information to their state criminal justice partners”;
• “Provide the [district court] with weekly reports containing the current population data for Metro West”; and
• “Submit, within 7 days of [the order], a proposal outlining steps Defendants will undertake to ensure additional social distancing safeguards in terms of housing inmates and inmate activity (medical visits, telephones, etc.).”
II.
“In considering whether to stay a preliminary injunction . . . we examine the
district court’s grant of the preliminary injunction for abuse of discretion,
reviewing de novo any underlying legal conclusions and for clear error any
findings of fact.” Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1317
(11th Cir. 2019).
III.
A court considering whether to issue a stay “considers four factors:
‘(1) whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured absent a
stay; (3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.’” Nken v.
Holder, 556 U.S. 418, 426 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776
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Case: 20-11622 Date Filed: 05/05/2020 Page: 8 of 20
(1987)). The first two factors are “the most critical.” Id. at 434. We address each factor in turn and conclude that a stay is warranted.
A. Likelihood of Success on Appeal In their § 1983 claim, the plaintiffs allege that the defendants violated the Eighth and Fourteenth Amendments through their deliberate indifference to the risk that COVID-19 poses to the plaintiffs. The defendants ask us to stay the injunction pending appeal because they contend that the plaintiffs failed to establish that they were entitled to a preliminary injunction. To obtain a preliminary injunction, the plaintiffs were required to establish that (1) “a substantial likelihood of success on the merits” exists; (2) they would suffer irreparable harm absent an injunction; (3) “the threatened injury to the[m] . . . outweighs” any harm the injunction might cause the defendants; and (4) if issued, the injunction would not be adverse to the public interest. Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247 (11th Cir. 2016) (internal quotation marks omitted). The Eighth Amendment to the United States Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” “The ‘cruel and unusual punishments’ standard applies to the conditions of a prisoner’s confinement.” Chandler v. Crosby, 379
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Case: 20-11622 Date Filed: 05/05/2020 Page: 9 of 20
F.3d 1278, 1288 (11th Cir. 2004); see also Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306 (11th Cir. 2009) (explaining that a pre-trial detainee’s “rights exist under the due process clause of the Fourteenth Amendment” but “are subject to the same scrutiny as if they had been brought as deliberate indifference claims under the Eighth Amendment”). An Eighth Amendment challenge to the conditions of confinement has two components: one objective and the other subjective. See Farmer v. Brennan, 511 U.S. 825, 846 (1994).
First, to satisfy the “objective component,” the prisoner must show “an objectively intolerable risk of harm.” Id. He must show that the challenged conditions were “extreme” and presented an “‘unreasonable risk of serious damage to his future health’ or safety.” Chandler, 379 F.3d at 1289 (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)). The defendants do not contest for purposes of this motion that the plaintiffs can satisfy this component.
Second, to satisfy the “subjective component,” the prisoner must show that the prison official acted with deliberate indifference. Id. A prison official acts with deliberate indifference when he “knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837; see also Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004). A prison “official may escape liability for known risks ‘if [he] responded reasonably to the risk, even if the harm ultimately
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Case: 20-11622 Date Filed: 05/05/2020 Page: 10 of 20
was not averted.’” Chandler, 379 F.3d at 1290 (quoting Farmer, 511 U.S. at 844). Deliberate indifference requires the defendant to have a subjective “state of mind more blameworthy than negligence,” Farmer, 511 U.S. at 835, closer to criminal recklessness, id. at 839–40.
The defendants are likely to prevail on appeal because the district court likely committed errors of law in granting the preliminary injunction. In conducting its deliberate indifference inquiry, the district court incorrectly collapsed the subjective and objective components. The district court treated the increase in COVID-19 infections as proof that the defendants deliberately disregarded an intolerable risk. In doing so, it likely violated the admonition that resultant harm does not establish a liable state of mind. See Farmer, 511 U.S. at 844. The district also likely erred by treating Metro West’s inability to “achieve meaningful social distancing” as evincing a reckless state of mind. Although the district court acknowledged that social distancing was “impossible” and “cannot be achieved absent an additional reduction in Metro West’s population or some other measure to achieve meaningful social distancing,” it concluded that this failure made it likely that the plaintiffs would establish the subjective component of their claim. But the inability to take a positive action likely does not constitute “a state of mind more blameworthy than negligence.” Id. at 835.
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Case: 20-11622 Date Filed: 05/05/2020 Page: 11 of 20
The defendants are also likely to succeed on appeal because the plaintiffs offered little evidence to suggest that the defendants were deliberately indifferent. Indeed, the evidence supports that the defendants are taking the risk of COVID-19 seriously. For example, the expert report commissioned by the district court concluded that the staff at Metro West “should be commended for their commitment to protect the staff and inmates in this facility during this COVID-19 pandemic. They are doing their best balancing social distancing and regulation applicable to the facility.” According to the expert report, Metro West appears to have implemented many measures to curb the spread of the virus. While perhaps impossible for the defendants to implement social distancing measures effectively in all situations at Metro West’s current population level, the district court cited no evidence to establish that the defendants subjectively believed the measures they were taking were inadequate. See Valentine v. Collier, No. No. 20-20207, 2020 WL 1934431, at *4 (5th Cir. Apr. 27, 2020) (“[T]reating inadequate measures as dispositive of the Defendants’ mental state . . . resembles the standard for civil negligence, which Farmer explicitly rejected.”).
The only other evidence the district court relied on to establish deliberate indifference is that Metro West’s social-distancing policies are “not uniformly enforced.” But the district court made no finding that the defendants are ignoring
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or approving the alleged lapses in enforcement of social-distancing policies, so these lapses in enforcement do little to establish that the defendants were deliberately indifferent. See Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th Cir. 1995) (requiring plaintiffs establish a causal connection between the defendant’s conduct and the constitutional violation to prevail on a deliberateindifference claim). Accepting, as the district court did, that the defendants adopted extensive safety measures such as increasing screening, providing protective equipment, adopting social distancing when possible, quarantining symptomatic inmates, and enhancing cleaning procedures, the defendants’ actions likely do not amount to deliberate indifference. So the district court likely erred in this regard.
B. Irreparable Injury The defendants have also shown that they will be irreparably injured absent a stay. See Nken, 556 U.S. at 434. Absent a stay, the defendants will lose the discretion vested in them under state law to allocate scarce resources among different county operations necessary to fight the pandemic. Through its injunction, the district court has taken charge of many administrative decisions typically left to MDCR officials. For example, the injunction requires that the defendants provide each Metro West inmate with an individual supply of soap and
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disinfectant products. Under pain of contempt, therefore, MDCR must divert these high-demand supplies to Metro West, even though they may be more critical at another county facility. Similarly, the injunction requires that the defendants test all inmates with COVID-19 symptoms and everyone with whom they have been in contact. To avoid contempt, then, MDCR must allocate limited testing resources to Metro West at the expense of other county facilities. All the while, the district court has tasked itself with overseeing the steps the defendants are taking to “ensure additional social distancing safeguards,” even though it acknowledges that social distancing is “impossible” at the current inmate population level. In short, the district court assumed the role of “super-warden” that our decisions repeatedly condemn. See Pesci v. Budz, 935 F.3d 1159, 1167 (11th Cir. 2019); Prison Legal News v. Sec’y, Fla. Dep’t of Corr., 890 F.3d 954, 965 (11th Cir. 2018).
As the Supreme Court has cautioned, “it is ‘difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.’” Woodford v. Ngo, 548 U.S. 81, 94 (2006). In large measure, the injunction transfers the power to administer the Metro West facility in the midst of the pandemic from public officials to the district court. The injunction hamstrings
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MDCR officials with years of experience running correctional facilities, and the elected officials they report to, from acting with dispatch to respond to this unprecedented pandemic. They cannot respond to the rapidly evolving circumstances on the ground without first seeking “a permission slip from the district court.” Valentine, 2020 WL 1934431, at *5. Such a prohibition amounts to an irreparable harm.
C. Balance of Harms and Public Interest The final two factors are the balance of harms and the public interest. See Nken, 556 U.S. at 426. Here, both those factors weigh in favor of a stay. The district court found that because the inmates “face immediate, irreparable harm from COVID-19,” their risk of harm outweighs the harm imposed on the defendants from complying with the preliminary injunction. But the question is not whether COVID-19 presents a danger to the inmates—we do not dismiss the risk of harm that COVID-19 poses to everyone, including the inmates at Metro West. The question is instead whether the plaintiffs have shown that they will suffer irreparable injuries that they would not otherwise suffer in the absence of an injunction. See id.; cf. Valentine, 2020 WL 1934431, at *5. Nothing in the record indicates that the defendants will abandon the current safety measures absent a preliminary injunction, especially since the defendants implemented many
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of those measures before the plaintiffs even filed the complaint. Nor do the plaintiffs contend that they will abandon those measures. For that reason, the balance of harms weighs in the defendants’ favor.
Finally, where the government is the party opposing the preliminary injunction, its interest and harm merge with the public interest. Nken, 556 U.S. at 435. We therefore conclude that the defendants have satisfied all four requirements for a stay.
IV. Before concluding, we address two other probable errors in the district court’s order that make the defendants likely to succeed on appeal: its refusal to address whether the plaintiffs established that the county and defendant Junior were likely liable under Monell and its refusal to address the exhaustion requirement of the Prison Litigation Reform Act (“PLRA”). Both inquiries are necessary components of the likelihood of success inquiry a court must undertake in order to issue a preliminary injunction in the first instance. See Wreal, 840 F.3d at 1247. First, the district court likely erred in holding that the plaintiffs are not required to establish municipal liability under Monell at the preliminary injunction stage. A municipality may not be held liable under § 1983 unless a municipal
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policy or custom caused the plaintiffs’ injury. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). The policy or custom requirement of Monell applies to § 1983 claims for declaratory or injunctive relief no less than claims for damages. Los Angeles Cty. v. Humphries, 562 U.S. 29, 31 (2010). Because a district court cannot award prospective relief against a municipality unless the requirements of Monell are satisfied, id., plaintiffs must establish that they are likely to satisfy the requirements of Monell to obtain a preliminary injunction against a municipality. See Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994).
Contrary to Church, the district court ruled that the plaintiffs did not need to establish a likelihood of success under Monell to obtain a preliminary injunction, and it did not address whether they were likely to satisfy Monell. For that reason, Miami-Dade County is likely to succeed in arguing on appeal that the district court erred by enjoining it. And because the plaintiffs sued defendant Junior only in his official capacity, which “generally represent[s] only another way of pleading an action against an entity of which an officer is an agent,” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell, 436 U.S. at 690), they must also satisfy the requirements of Monell to obtain injunctive relief against him to the extent they challenge his conduct as an officer of Miami-Dade County. See Barnett v.
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MacArthur, No. 18-12238, 2020 WL 1870445, at *3 (11th Cir. Apr. 15, 2020); Familias Unidas v. Briscoe, 619 F.2d 391, 403–04 (5th Cir. 1980). The district court did not address whether the plaintiffs were likely to satisfy Monell as to defendant Junior, so he is also likely to succeed in having the injunction against him vacated on appeal.
Second, the district court also likely erred in declining to address PLRA exhaustion at the preliminary injunction stage. In no uncertain terms, the PLRA provides: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). So long as those remedies are “available” to the prisoner, a “court may not excuse a failure to exhaust, even to take [special] circumstances into account.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). But the district declined to address exhaustion because failure to exhaust is an affirmative defense, and therefore, according to the district court, is inapplicable at the preliminary injunction stage. That decision was misguided.
Just because failure to exhaust is an affirmative defense and not a pleading requirement, see Jones v. Bock, 549 U.S. 199, 216 (2007), does not render exhaustion irrelevant to determining whether the plaintiffs are entitled to a
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preliminary injunction. “[T]he burdens at the preliminary injunction stage track the burdens at trial.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006). Failure to exhaust is an affirmative defense, so the defendants bear the burden of proving it. See Jones v. Bock, 549 U.S. at 216. Because the defendants correctly raised and briefed the defense in a motion to dismiss and in their opposition to the plaintiffs’ motion for a preliminary injunction, the district court was obliged to decide whether the defendants were likely to establish the defense. See Gonzales, 546 U.S. at 428; Chandler, 379 F.3d at 1286 (explaining that exhaustion under the PLRA is “a threshold matter” that a court “must address” before reaching the merits). Although the district court determined that the existence of the defense turned on disputed questions of fact, district courts are required to resolve factual disputes regarding PLRA exhaustion—a “preliminary issue”—at the outset of a case. See Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008). The district court could not determine that the plaintiffs were likely to succeed on their § 1983 claim without, at the very least, finding that the defendants were unlikely to carry their burden of establishing failure to exhaust. See Gonzales, 546 U.S. at 428–29. Because it failed to do so, the defendants are likely to succeed on appeal.
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V. In conclusion, the defendants’ motion for a stay pending appeal and motion to expedite the appeal are GRANTED. The plaintiffs’ “Opposed Motion for Oral Argument on Appellants’ Emergency Motion to Stay Injunction Pending Appeal” is DENIED. The Court DIRECTS the Clerk to expedite the appeal for merits disposition purposes and to schedule it for oral argument before the earliest available panel. The Court sets the following briefing schedule: the initial brief is due on May 18, 2020, the response brief is due on May 28, 2020, and the reply brief is due on June 1, 2020. No motions for extensions of time will be considered.
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WILSON, Circuit Judge, dissenting from the order granting the stay: To persuade us to grant a stay, the County bore the burden of making “a strong
showing” that it is likely to succeed on the merits—a “most critical” factor. See Nken v. Holder, 556 U.S. 418, 433–34 (2009); Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1317 (11th Cir. 2019). It failed to do so. I see no strong showing of error as to the district court’s factual findings or legal conclusions about (1) meaningful social distancing and population reduction or other measures to achieve it, or (2) officials’ knowledge and the reasonableness of their response. See Brown v. Plata, 563 U.S. 493, 521, 526–30 (2011) (analyzing the necessity of reducing overcrowding after other failed remedial measures in the Eighth Amendment context); Helling v. McKinney, 509 U.S. 25, 36–37 (1993) (describing focus on both society’s and prison authorities’ current attitudes and conduct). And I otherwise fail to see an abuse of discretion here. Therefore, I dissent from the order granting the stay.
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David J. Smith Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
May 05, 2020

MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 20-11622-C Case Style: Anthony Swain v. Daniel Junior, et al District Court Docket No: 1:20-cv-21457-KMW

For rules and forms visit www.ca11.uscourts.gov

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. Non-incarcerated pro se parties are permitted to use the ECF system by registering for an account at www.pacer.gov. Information and training materials related to electronic filing, are available at www.ca11.uscourts.gov.
The enclosed Publish Order has been ENTERED.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Walter Pollard, C Phone #: (404) 335-6186

MOT-2 Notice of Court Action

 
 Case 1:20-cv-21457-KMW Document 119 Entered on FLSD Docket 05/15/2020 Page 1 of 21

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

ANTHONY SWAIN, et al., individually and on behalf of all others similarly situated,

Plaintiffs, v.

Case No.: 1:20-cv-21457-KMW

DANIEL JUNIOR, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department, et al.,

Defendants. _____________________________________/

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS COUNT I OF THE COMPLAINT

Plaintiffs hereby respond to Defendants’ Motion to Dismiss Count I of the Complaint [ECF 66] (“Motion to Dismiss”), and state as follows:
Central to the Supreme Court’s analysis of exhaustion under the Prison Litigation Reform Act (“PLRA”) is an understanding that jails should not be rewarded for designing systems or engaging in misconduct that render the administrative process functionally incapable of use. In this case, when attempting to secure basic protections against a rapidly escalating viral pandemic, the detained Plaintiffs were burdened with an “emergency” grievance process too lengthy to provide any relief from imminent harm, and they were repeatedly refused the paper forms necessary to access even that grievance process. Because the administrative procedure at Metro West Detention Center was not “available” for purposes of exhaustion, Plaintiffs had no obligation to exhaust the remedy. The Court should therefore deny Defendants’ Motion to Dismiss.
I. BACKGROUND To file a grievance in a MDCR facility, a detainee “must fill out an Inmate Grievance
Form” within ten workdays from the date of the incident. ECF No. 66-2 (“Inmate Handbook”) at 7. Detainees must place the completed grievance form into an “inmate request drop box” to properly “grieve an issue” according to MDCR policy; if a detainee “attempt[s] to give [the]
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form[] to staff,” staff are required to “[i]nstruct” the detainee to place the completed form into the drop box. ECF No. 66-1 at 2, 3. The grievance will be returned if the form is incomplete, contains more than one complaint or issue, lists more than one grievant, is written offensively, “has no basis in fact,” or “contains an issue that cannot be grieved.” Inmate Handbook at 7. If a grievance form is returned, the detainee “may fill out a new form” and return it “to staff within 2 workdays, unless the issue cannot be grieved.” Id.
Generally, MDCR policy states that a detainee will receive a response to his grievance within twenty calendar days. Id. There is no way for detainees to expedite the process by designating their grievances as an “emergency;” MDCR staff decide whether the grievance constitutes an emergency. Id.; ECF No. 66-1 at 4. For those grievances that MDCR staff choose to treat as an emergency, the policy states that a detainee will receive a response within seven calendar days. Inmate Handbook at 7. Regardless of whether the grievance is an emergency, the appeal process is the same: a detainee must fill out an “Inmate Grievance Appeal Form” within two workdays, and policy states that the detainee will receive a response within seven workdays. Id.
Plaintiffs attempted to file grievances prior to this lawsuit, but the grievance forms were unavailable in their dormitory cells and, when Plaintiffs repeatedly requested blank forms from MDCR staff, their requests were refused. See Blanco Decl. ¶ 18, ECF No. 3-6; Cruz Decl. ¶ 15, ECF No. 3-8; Bernal Decl. ¶ 14, ECF No. 3-10; Supp’l Blanco Decl. ¶¶ 2-6, Ex. 1 (identifying officer names and additional details); Supp’l Cruz Decl. ¶¶ 4-6, Ex. 2 (same). Plaintiffs were informed there were no grievance forms available and that they would have to wait for the arrival of their counselor to obtain a form, but counselors appeared infrequently due to the coronavirus pandemic. Supp’l Blanco Decl. ¶¶ 5-7; Supp’l Cruz Decl. ¶¶ 6-7; Bernal Decl. ¶ 14. Plaintiffs were therefore unable to access the grievance process before filing, with the exception of a few Plaintiffs who were finally provided one form each and, pursuant to Defendants’ constraints, filed grievances on only one issue each in the beginning of April. Blanco Decl. ¶ 18; Supp’l Blanco Decl. ¶ 8; Supp’l Cruz Decl. ¶ 7. As of May 14, 2020, Plaintiffs Alen Blanco and Bayardo Cruz have not yet received a response to the grievance they filed in early April. Supp’l Blanco Decl. ¶¶ 8-9; Supp’l Cruz Decl. ¶ 9.
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II. LEGAL STANDARD The PLRA requires an incarcerated person to exhaust “such administrative remedies as
are available” before filing an action in federal court to challenge prison conditions. 42 U.S.C. § 1997e(a). This exhaustion requirement “hinges on the ‘availability’ of administrative remedies: An inmate . . . must exhaust available remedies, but need not exhaust unavailable ones.” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (alternation marks omitted). Accordingly, incarcerated people are “required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’” Id. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). The Supreme Court has recognized at least three examples of circumstances “in which an administrative remedy, although officially on the books, is not capable of use to obtain relief”: (1) when the procedure “operates as a simple dead end” and officers are “unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) where the “administrative scheme is so opaque that it becomes, practically speaking, incapable of use”; and (3) “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859-60.
This exhaustion requirement is an affirmative defense, not a pleading requirement, and Defendants bear the burden of proving a failure to exhaust available administrative remedies. Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). In this Circuit, there is a two-step process for resolving motions to dismiss for failure to exhaust under the PLRA. Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir. 2015). First, the district court looks to the factual allegations raised in the motion to dismiss as well as the detainee’s response and accepts the detainee’s articulation of the facts as true. Id. (citing Turner, 541 F.3d at 1081). Where the facts as stated by the detainee do not demonstrate a failure to exhaust, dismissal is unwarranted. Id. The court then proceeds to the second step, where it “makes specific findings to resolve disputes of fact” related to exhaustion and should deny the motion if, based on those findings, defendants fail to adequately prove a failure to exhaust. Id. The district court is able to “consider facts outside of the pleadings and to resolve factual disputes so long as the factual disputes do not decide the merits and the parties have sufficient opportunity to develop a record.” Bryant v Rich, 530 F.3d 1368, 1376 (11th Cir. 2008) (citations omitted).
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III. RESPONSE IN OPPOSITION TO MOTION TO DISMISS Defendants fail to demonstrate that Plaintiffs did not exhaust available remedies.
Dismissal is unwarranted at the first step of the Turner inquiry, given Defendants’ admissions regarding the length of time allotted (and taken by the jail) to complete even the “emergency” grievance process, as well as Plaintiffs’ sworn testimony that jail officials repeatedly denied their requests for grievance forms to access even the process that would not have meaningfully addressed their concerns. Dismissal is also unwarranted at the second step. Much of the evidence proffered by Defendants corroborates Plaintiffs’ assertions, and given deficiencies in their evidence, Defendants fail to contradict or adequately dispute Plaintiffs’ sworn testimony at this stage. Accordingly, the Court should deny Defendants’ motion to dismiss.
If the Court makes it to step two, then the parties must engage in discovery so that Plaintiffs can test Defendants’ assertions and access evidence in Defendants’ possession that would further corroborate Plaintiffs’ testimony. Bryant 530 F.3d at 1376 (requiring that the parties be given “sufficient opportunity to develop a record” at step two).
A. Plaintiffs had no obligation to exhaust unavailable remedies. Defendants argue that, at step one of Turner’s two-step framework, Plaintiffs’ assertions do not support a finding that administrative remedies were “unavailable” at Metro West. ECF No. 66 at 5-8. Defendants are incorrect for two reasons. First, the grievance process in place at Metro West “offer[ed] no possible relief in time to prevent the imminent danger from becoming an actual harm” and was therefore unavailable under the PLRA. Fletcher v. Menard Correctional Center, 623 F.3d 1171, 1173 (7th Cir. 2010); see also Compl. ¶¶ 105-06, ECF No. 1. The unambiguous language of Defendants’ own written policies confirm there was no remedy available to address the urgent concerns raised in this lawsuit to provide basic protections to Plaintiffs as the viral infection spread exponentially inside the jail within days. Second, even if Defendants’ procedures were capable of providing any relief, MDCR employees denied Plaintiffs’ repeated requests for grievance forms. Compl. ¶¶ 105-06. Withholding the forms necessary to access the grievance process, as a matter of law, renders the remedy unavailable.
i. The administrative procedure at Metro West offered no possible relief in time to address the imminent threats posed by this viral pandemic.
As Defendants acknowledge, a person “need only exhaust those remedies that are ‘available’ to him.” ECF No. 66 at 2 (quoting Ross v. Blake, 136 S. Ct. 1850, 1856 (2016)). This
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“built-in exception to the exhaustion requirement” of the PLRA “has real content,” Ross, 136 S. Ct. at 1855, 1858-59, and the length of time required to access relief from an administrative remedy clearly bears on the availability of that remedy. For example, “[i]f a prisoner has been placed in imminent danger of serious physical injury by an act that violates his constitutional rights, administrative remedies that offer no possible relief in time to prevent the imminent danger from becoming an actual harm can’t be thought available.” Fletcher, 623 F.3d at 1173. Operating a grievance process that cannot be completed in time to remedy an urgent issue is one primary way that a jail can create a “dead end” to the process, thereby ensuring it is “unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross, 136 S. Ct. at 1859. The Supreme Court has noted that a grievance process with a “dead end” is unavailable for purposes of PLRA exhaustion, “despite what regulations or guidance materials may promise,” and “the inmate has no obligation to exhaust the remedy.” Id.
Defendants argue that Metro West employs an “emergency” grievance procedure that Plaintiffs should have fully exhausted prior to filing this lawsuit. But this “emergency” process is not available, on its face, to resolve issues requiring an urgent response. As stated in both the Employee Handbook and the written policies, the “emergency” grievance process at Metro West (which relies on Defendants to decide when something is an “emergency”)1 will take over two weeks to fully exhaust: seven calendar days to receive a response to the grievance, two workdays to properly submit an appeal of a denial, and seven additional workdays to receive a response to the appeal. Inmate Handbook at 7, ECF No. 66-2; ECF No. 66-1 at 5, 7. Accordingly, if a person had an emergency that must be addressed in less than two weeks — such as needing a sufficient supply of soap to wash one’s hands in a crowded dormitory cell as a viral pandemic spreads — Defendants’ grievance procedures are simply not available to resolve it. If it takes two weeks or more to exhaust a complaint but the detainee is in danger of imminent harm, there is no
1 Defendants have repeatedly asserted to this Court that Plaintiffs’ claims are not an emergency and have no basis in fact. See, e.g., ECF No. 67 at 22 (claiming Plaintiffs’ allegations about the cleanliness of Metro West are “at the very least incredible if not intentionally misleading”); id. (describing Plaintiffs’ allegations about movement between cells as “baseless accusations”); id. at 29-30 (describing Plaintiffs’ request for protection from COVID as “a wish list of additional mitigating measures” and arguing that they are unlikely to suffer irreparable harm). Given these representations, Defendants cannot now argue that they would have treated those grievances as emergencies having a “basis in fact,” ECF. No. 66-2 at 7, had they been made through the administrative process and not as part of a federal lawsuit. Accordingly, the 20-day limit for the initial response to non-emergency grievances is likely the appropriate timeframe when determining how long exhaustion would take.
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“possibility of some relief.” Ross, 136 S. Ct. at 1859 (quoting Booth, 532 U.S. at 738). As the Fletcher court reasoned, “there is no duty to exhaust, in a situation of imminent danger, if there are no administrative remedies for warding off such a danger.” 623 F.3d at 1173.
The situation at Metro West was one of imminent danger. Medical experts have explained that the “horizon of risk” is measured “in a matter of days, not weeks,” with this novel coronavirus. See, e.g., Greer Decl. ¶ 39, ECF No. 3-14; Henderson Decl. ¶ 31, ECF No. 17-1; Meyer Decl. ¶ 40, ECF No. 80-15; Paredes Decl. ¶ 9, ECF No. 80-35 (“A patient’s condition can seriously deteriorate in as little as five days (perhaps sooner) following initial detection of symptoms.”); Mishori Decl. ¶ 12, ECF No. 80-17 (“Complications from COVID-19, including severe damage to lung, heart, liver, or other organs, can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner.”). Data suggests, for example, that if social distancing policies had been imposed just one week earlier, there would have been a “substantial” reduction in deaths of approximately 50-80%.2
Defendants’ primary argument (that the length of time required to access relief is irrelevant when determining the remedy’s availability) is both callous and nonsensical. See ECF 66 at 6. Under Defendants’ theory, even if a jail’s “emergency” grievance process provided no practical ability for a person to obtain redress for an urgent issue, the process would nonetheless be “available” so long as the jail could respond at any time in the future — even where the process allowed the jail to respond multiple weeks (or even months) after the initial complaint. This position stretches the meaning of “available” beyond recognition. The Supreme Court’s commonsense approach in Ross, which explains that remedies are available only if they are actually “‘capable of use’ to obtain ‘some relief,’” 136 S. Ct. at 1859 (quoting Booth, 532 U.S. at 738), rejects Defendants’ formalistic argument that the timing of an administrative process has nothing to do with its availability. Here, Plaintiffs’ need was simple and urgent: compliance with CDC guidelines so they could disinfect their cells, wash their hands, receive proper care, and maintain medically required social distancing to protect themselves from becoming infected with a serious disease spreading rapidly within days inside jails throughout the country. For them, the more-than-two-week grievance procedure at Metro West was not “capable of use to obtain some
2 Britta L. Jewell and Nicholas P. Jewell, The Huge Cost of Waiting to Contain the Pandemic, N.Y. Times (Apr. 14, 2020), available at https://www.nytimes.com/2020/04/14/opinion/covid-social-distancing.html.
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relief” in any meaningful sense of those words. Id. (internal quotation marks omitted). Notably, Defendants cite no authority for the proposition that an “emergency” grievance procedure, specifically one with no hope of providing any relief to a detainee because the response would be delayed until after the person had suffered the very harm he sought to avoid, is considered “available” under the PLRA.
In incorrectly suggesting that the Eleventh Circuit has foreclosed Plaintiffs’ arguments about the unavailability of administrative remedies at Metro West, Defendants cite a single, unpublished decision that fails to support their position. ECF No. 66 at 6. In Bracero v. Secretary, Florida Department of Corrections, 748 F. App’x 200 (11th Cir. 2018), a pro se prisoner’s grievances were held to be procedurally improper because he did not properly fill out the informal grievance forms, and his grievances “were not submitted on the required forms and did not contain necessary information.” Id. at 203. The court relied on those reasons to find that this prisoner had not properly exhausted his administrative remedies, thereby warranting dismissal of the complaint. Id. at 203-04. The prisoner later “assert[ed] that his complaint should not have been dismissed before granting injunctive relief because he alleged imminent danger,” but the court dismissed this argument in a single clause with the unremarkable proposition that generally, “exhaustion is a prerequisite for any prisoner suit.” Id. at 204. Bracero did not consider, let alone opine on, the specific question of whether a grievance process incapable of addressing an imminent need is “available” under the PLRA.
Defendants’ remaining arguments similarly hold no merit. First, they suggest that Plaintiffs’ assertions about the unavailability of Metro West’s emergency grievance procedure are attempts to invoke a foreclosed “futility exception” to exhaustion. ECF No. 66 at 6. But this confuses and mischaracterizes the issue: “futility is not the same as unavailability.” Fletcher, 623 F.3d at 1173. Futility is concerned with the adequacy rather than the availability of relief, such as when the specific remedies sought in the lawsuit (like money damages) are not the remedies permitted by the prison’s grievance process, or when a prisoner chooses to not engage in the administrative process because he subjectively believes the prison may ultimately deny the relief they seek. See Alexander v. Hawk, 159 F.3d 1321, 1326 (11th Cir. 1998); Higginbotham v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000). Plaintiffs assert no such thing.
Second, Defendants incorrectly claim that even if the grievance procedures at Metro West were “not capable of use” to address the imminent danger suffered by Plaintiffs, the
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remedy cannot be deemed unavailable because it does not fall within any of the three exceptions enumerated in Ross. ECF No. 66 at 6. This argument fails for multiple reasons. As a threshold matter, this Court need not consider whether the three exceptions identified in Ross are exhaustive or demonstrative, given that the situation identified by Plaintiffs falls within the first Ross exception: where the administrative procedure is unavailable because it “operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross, 136 S. Ct. at 1859. The Supreme Court noted various examples of potential “dead end” scenarios—including one where the administrative office responsible for handling the grievance declines to exercise its apparent authority, and another where the relevant administrative procedure itself lacks authority to provide any relief. Id. Here, the substantial length of time allowed for responding to emergency grievances creates a system where “officers [are] unable or consistently unwilling to provide any relief to aggrieved inmates” suffering or fearing imminent harm, and it “demonstrate[s] that no such potential [of some relief] exists.” Id. The situation here, and the analysis offered in Fletcher, squarely satisfies the first exception enumerated in Ross.
Even if this Court were to find that the situation falls outside the three examples identified in Ross, the administrative remedy would still be properly deemed unavailable according to the Supreme Court’s articulation of availability. The Supreme Court has repeatedly relied on the “ordinary meaning of the word ‘available’” to guide its analysis, and it held in Ross that “an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’” Id. at 1858-59. The “three kinds of circumstances” identified later in the opinion are demonstrative examples “note[d]” by the court “as relevant” to the facts presented in Ross. Id. at 1859. The Eleventh Circuit itself has stated that the Supreme Court “identified at least three scenarios” of unavailable remedies in Ross, Montalban v. Doe, 801 F. App’x 710, 714 (11th Cir. 2020) (emphasis added), suggesting the list of examples is not exhaustive of all potential circumstances in all future situations inside a jail or prison, and multiple other courts of appeals agree. Williams v. Correction Officer Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016) (“We note that the three circumstances discussed in Ross do not appear to be exhaustive, given the Court’s focus on three kinds of circumstances that were ‘relevant’ to the facts of that case.”); Andres v. Marshall, 867 F.3d 1076, 1078 (9th Cir. 2017) (describing the three categories in Ross as “non-exhaustive”); Muhammad v. Mayfield,
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933 F.3d 993, 1000 (8th Cir. 2019) (“The Supreme Court recognizes at least three circumstances”); Shumanis v. Lehigh County, 675 F. App’x 145, 148 (3d Cir. 2017) (listing the three Ross circumstances as “example[s]”). Defendants are therefore incorrect to hyperbolically claim that “[t]he list ends at three; there is no fourth circumstance,” that the list is “exhaustive,” and that if an otherwise unavailable remedy “can’t be squared with one of the ‘three kinds of circumstances’ enumerated in Ross, then as far as the PLRA is concerned, it’s not worth the paper it’s written on.” ECF No. 66 at 6-7.
Defendants cite to a single unpublished decision to support their assertion that the list of Ross circumstances is exhaustive, and their reliance on this case is misplaced. ECF No. 66 at 6. In Pearson v. Taylor, 665 F. App’x 858 (11th Cir. 2016), an incarcerated person argued, in relevant part, that the grievance process was unavailable because the prison’s policy prevented him from having more than two grievances active at one time. Id. at 867. Because he already had two active grievances at the time of the incident, he argued he was prevented from grieving the relevant claim—denial of medical treatment. Id. The court in Pearson acknowledged that this argument “do[es] not appear to fall within any of [Ross’s] three ‘exceptions’ to exhaustion,” but its finding of availability relied on another reason: the same policy also allowed him to withdraw a pending grievance and file a new one. Id. at 868. The court therefore sidestepped the issue and found that the plaintiff had “an available route to exhaust his claims regarding the denial of medical treatment according to the applicable procedural rules,” but that he chose not to “prioritize” the relevant grievance. Id. Pearson therefore does not stand for the proposition supposed by Defendants.
Third, Defendants’ attempts to undermine the analysis offered by Fletcher is not persuasive. See ECF No. 66 at 7. For the reasons above, Fletcher’s analysis of availability in instances of imminent danger remains viable post-Ross: it fits squarely within the first Ross exception and, to the extent the Court finds it does not, it nonetheless conforms to the Supreme Court’s general articulation and analysis of availability in Ross.
Defendants also point to the language in Fletcher that this unavailability exception “does not excuse a prisoner from exhausting remedies tailored to imminent dangers,” and that the Fletcher court ultimately found that the plaintiff had such a remedy available in the form of an emergency grievance procedure in Illinois prisons. ECF No. 66 at 7 (quoting Fletcher, 623 F.3d at 1175). Defendants then point to the emergency grievance process available at Metro West. Id.
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However, the facts of Fletcher are easily distinguishable on this issue. For one, the danger feared by the plaintiff in Fletcher was “not of the greatest urgency”— the plaintiff himself admitted that the two days he waited between the beating he suffered (the same day he filed an emergency grievance) to filing the lawsuit was, “even on his own account[,] so short a delay” that the alleged denial of medical treatment “could not have endangered his health seriously.” Fletcher, 623 F.3d at 1174, 1175 (emphasis added). Moreover, the plaintiff in Fletcher gave “no reason to think that the prison’s grievance procedure would take longer than judicial procedure.” Id. at 1175. In this case, the opposite is true. As noted above, in the midst of a rapidly spreading viral pandemic, an administrative procedure requiring medically vulnerable people to wait more than two calendar weeks for a response to basic health and sanitation emergencies is not “available” to exhaust. The Plaintiffs in this case fear for their lives given the symptomatic people that surround them and the lack of adequate responses undertaken by MDCR to address the possibly fatal threats of the virus. See, e.g., Willis Decl. ¶ 4, ECF No. 3-7; Swain Decl. ¶ 3, ECF No. 3-4; Blanco Decl. ¶¶ 2-3, 19; Cruz Decl. ¶ 2; Bernal Decl. ¶¶ 2, 17; Flores Decl. ¶¶ 2-3, ECF No. 3-9. Indeed, they obtained relief far more quickly from this Court than the Metro West grievance procedure provides.
Moreover, the emergency procedure that formed the basis of the Fletcher court’s decision is itself distinguishable from the “emergency” process at Metro West. The Illinois prison system offered an expedited emergency grievance procedure where the “grievance is forwarded directly to the warden, who determines whether ‘there is a substantial risk of imminent personal injury or other serious or irreparable harm’” and, where there is such a risk, the warden handles the grievance on an emergency basis. Fletcher, 623 F.3d at 1174 (quoting 20 Ill. Admin. § 504.840). That is a far cry from the lengthy process at Metro West, where once a staff member determines that a grievance is emergent, the staff member delivers a copy of the grievance to the Inmate Medical Provider or Shift Supervisor/Commander for resolution, whereby the burden falls to the Facility/Bureau Supervisor or IMP/Director of Patient Care Services to investigate and prepare the written response, and there is no expedited appeals process for the denial of emergency grievances. See ECF No. 66 at 5; ECF No. 66-1 at 4-5. Metro West’s multi-step two-week process is easily distinguishable not only from the emergency procedure at issue in Fletcher, but also from the one in Nellson v. Barnhart. No. 20-cv-00756-PAB, 2020 WL 1890670, at *4 (D. Colo. Apr. 16, 2020) (finding that plaintiff failed to exhaust under the PLRA because he had
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available an expeditious emergency procedure that provided, if the issue “threatens the inmate’s immediate health or welfare, the Warden shall respond not later than the third calendar day after filing” (quoting 28 C.F.R. § 542.18) (emphasis added)).
Finally, Defendants’ reliance on Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020), is unpersuasive. Valentine based its holding on the speculation that “relief . . . remains possible” so long as there is no statutory or legal bar to the jail offering a prompt response to a grievance. Id. at 805. But that distorts the meaning of “available” and ignores precedent requiring a person to wait for “available” remedies to conclude in order to properly exhaust. Even if it is theoretically possible for officials to respond to a grievance more quickly than required, a detainee is not permitted to sue until the allowed response period actually expires or he receives a final response—and it is undisputed that jail officials are entitled to wait the maximum amount of time permitted under policy before responding to a grievance. Fletcher acknowledges this practical reality and therefore offers the more compelling analysis of the meaning of “available.” Moreover, here—unlike in Valentine—there is evidence supporting the finding that Metro West does take the full time allotted under its own policy—or longer—to respond to an emergency grievance. See, e.g., Supp’l Blanco Decl. ¶ 8 (has not yet received a response to the grievance he filed approximately six weeks ago); Supp’l Cruz Decl. ¶¶ 7, 9 (same); Stuhlmiller Decl. ¶¶ 3738, ECF No. 81-5 (an appeal has not been responded to after more than two weeks).
Accordingly, under Plaintiffs’ facts, which must be accepted as true, Metro West’s emergency grievance process presents no “possibility of some relief” and is thus unavailable to exhaust in accordance with Supreme Court precedent. See Ross, 136 S. Ct. at 1859. Dismissal of the complaint at step one of this inquiry is therefore unwarranted.
ii. The refusal to provide grievance forms necessary to access the administrative procedure rendered the remedy unavailable.
At step one, the grievance process at Metro West was unavailable for a second independent reason: Plaintiffs were repeatedly denied the grievance forms they needed to access this administrative remedy, thereby making it incapable of use to obtain relief. See Blanco Decl. ¶ 18; Cruz Decl. ¶ 15; Bernal Decl. ¶ 14; Supp’l Blanco Decl. ¶¶ 3-7; Supp’l Cruz Decl. ¶¶ 4-7. It is undisputed that according to MDCR policy, a detainee must fill out and submit an “Inmate Grievance Form” to properly file a grievance. See Inmate Handbook at 6. Accordingly, refusing to provide or withholding a grievance form at Metro West is akin to altogether denying access to
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the administrative remedy. As the Supreme Court noted in Ross, exhaustion is not required under the PLRA where “prison administrators thwart inmates from taking advantage of a grievance process” because “such interference with an inmate’s pursuit of relief renders the administrative process unavailable.” Ross, 136. Ct. at 1860. Accordingly, the remedy here was rendered unavailable by the machinations of MDCR staff.
The Eleventh Circuit has suggested that an administrative remedy is unavailable where prison staff refuse to provide the forms necessary to access the grievance process. See Abram v. Leu, 759 Fed. App’x 856, 861 (11th Cir. 2019) (allegations that “prison staff interfered with [a prisoner’s] pursuit of administrative remedies by refusing to provide him with the forms required to utilize the administrative process . . . pertain to the availability of his administrative remedies”); Booth v. Allen, 758 F. App’x 899, 902 (11th Cir. 2019) (allegations that “prison officials withheld certain necessary forms to thwart his efforts to timely file” suggest the remedy was not available). Other courts agree. See, e.g., Coleman v. Holden, No. CV 506-046, 2007 WL 201309, at *3 (S.D. Ga. Jan. 24, 2007) (“If the evidence shows that Plaintiff’s requests for the forms were indeed refused, Plaintiff would have indeed exhausted all of his ‘available’ administrative remedies, as he would no longer have had ‘the possibility of some relief for the action complained of.’” (quoting Booth, 532 U.S. at 738)); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003) (“[T]he District Court incorrectly dismissed this claim because it did not consider Mitchell’s allegations that he was denied grievance forms.”); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (finding that plaintiff’s allegations that the Arkansas Department of Corrections failed to respond to his request for grievance forms “were sufficient to raise an inference that he had exhausted his ‘available’ remedies”); Aceves v. Swanson, 75 F. App’x 295, at *1 (5th Cir. 2003) (“If the institutional authorities refuse to provide a prisoner with the forms needed to exhaust administrative remedies, then those remedies are not ‘available’ to the prisoner.”).
Defendants argue that even if those who finally received grievance forms well after their repeated requests were denied ultimately submitted a grievance before filing this lawsuit, they failed to “properly” exhaust because they did not wait to fulfill the entire obstructed grievance process. ECF No. 66 at 8. This argument holds no merit.3 Defendants cite no case law for their
3 Plaintiffs Alen Blanco and Bayardo Cruz also explain that even if grievance forms were ultimately provided, only “a few” forms were brought to the dormitory cell and, given the interest in forms from others, they were able to only file one grievance each despite having several issues to grieve. Blanco Decl. ¶ 18; Supp’l Blanco Decl. ¶ 7; Supp’l Cruz Decl. ¶ 7. The decision to refuse forms, and then to
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extraordinary position that where prison officials repeatedly thwart a detainee’s attempts to file an emergency grievance by withholding the necessary forms, the detainee must nonetheless wait for the official to eventually provide a form and, once that form is given, must then go through every step of the delayed and obstructed process in order to satisfy PLRA exhaustion. See ECF No. 66 at 8 (citing only to Woodford v. Ngo, 548 U.S. 81, 90, 93 (2006), for the general proposition that the PLRA requires proper exhaustion of available remedies). Accepting Defendants’ argument would erase entirely the Supreme Court’s guidance that a prison’s “interference with an inmate’s pursuit of relief renders the administrative process unavailable,” and it would in fact reward prisons and prison officials for “thwart[ing] inmates from taking advantage of a grievance process.” Ross, 136 S. Ct. at 1860. The PLRA “does not require inmates to craft new procedures when prison officials demonstrate . . . that they will refuse to abide by the established ones,” Turner, 541 F.3d at 1083, as MDCR officials did here.
Defendants ultimately concede that where “allegations of denials of requests for grievances for lack of blank grievance forms could lead to a finding that the grievance process was not available . . . dismissal at step one would not be appropriate.” ECF No. 66 at 8. Given Supreme Court precedent, the facts put forward by Plaintiffs, various case law supporting the unavailability of this remedy, and this Court’s obligation to accept Plaintiffs’ facts as true, dismissal at step one is unwarranted.
B. Defendants fail to carry their burden to demonstrate a failure to exhaust available remedies.
Dismissal is also unwarranted at step two of the Turner inquiry because Defendants have not proven that Plaintiffs failed to exhaust available remedies.
i. The grievance procedure at Metro West was incapable of use to provide any relief for the imminent danger.
At step two, in response to Plaintiffs’ arguments that the grievance procedure at Metro West was incapable of use to provide any relief for the imminent danger posed by the viral pandemic, Defendants rely solely on a conclusory statement that the administrative process was “fully available” to Plaintiffs in light of the evidence provided by the County. ECF No. 66 at 12.
restrict the number of accessible forms, is especially troubling given that MDCR policy also demands that a person may raise only one discrete issue per form, such that any practice of limiting access to grievance forms limits the very issues that can be grieved. See Inmate Handbook at 7 (noting that “[t]he grievance will be returned to you if: . . . [t]he form has more than 1 complaint (issue)”).
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However, Defendants provide no evidence to dispute Plaintiffs’ assertions that the “emergency” grievance process at Metro West was incapable of use, or that the dangers and harms posed by the pandemic were undoubtedly urgent. Accordingly, the Court should find that the grievance procedure was unavailable for purposes of exhaustion. This finding alone is dispositive and justifies denial of the motion.
ii. Defendants’ evidence corroborates and does not contradict Plaintiffs’ assertions that grievance forms were unavailable at Metro West.
Even if the Court continues the Turner analysis and considers Defendants’ remaining evidence regarding the grievance forms, dismissal is unwarranted.
To begin, Defendants repeatedly and incorrectly describe Plaintiffs’ allegations as “unsworn,”4 “self-serving,” and “unsubstantiated,” and even go so far as to argue that the “Complaint offers no proof” to support Plaintiffs’ statements. ECF No. 66 at 8-10. This mischaracterization ignores the robust factual record before this Court, including the sworn declarations by Named Plaintiffs filed alongside the Complaint in support of their motion for temporary restraining order and preliminary injunction—declarations that Defendants must acknowledge constitute “supporting proof,” given that they readily rely on the sworn declarations of MDCR employees to support their own assertions. ECF No. 66 at 8-9.
In pointing to various declarations filed in support of their motions, Defendants argue that their evidence demonstrates two points: that grievance forms were available and that Plaintiffs did not file any grievances prior to the filing of this lawsuit. ECF No. 66 at 8-9. However, much of Defendants’ evidence actually corroborates Plaintiffs’ assertions.
First, Defendants’ evidence corroborates that supplies of grievance forms had been “running low” at Metro West during the same period of time when Plaintiffs’ requests were repeatedly denied, and that supplies had diminished to such a degree that Correctional Counselor Supervisor Mathews had to deliver a box of 2,000 forms from headquarters to Metro West on or around April 3. Mathews Decl. ¶¶ 8-9, ECF No. 66-5. See also ECF No. 66 at 10 (“As a matter
4 As stated in their declarations, Plaintiffs’ declarations were sworn to orally because Metro West is currently not permitting documents to be exchanged for signatures due to the pandemic. Having made it impossible for Plaintiffs to sign their declarations, Defendants cannot now claim that a written signature is necessary in order for these declarations to constitute sworn statements, and they cite no law for that proposition.
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of fact, supplies were recently getting low”). Indeed, it is unsurprising that in late March and early April, as an unprecedented global pandemic spread throughout Miami-Dade County, concerned detainees had more grievances than normal (thereby depleting the supply of forms).5 And no declaration or piece of evidence provides that all the forms inside this box were actually dispersed to the dormitory cells at Metro West once delivered.
Defendants also point to Mathews’s Declaration for the general facts that a box of blank grievance forms inside each dormitory cell is supposed to be restocked by the correctional counselor assigned to the unit and that, if the box is empty and the counselor is not carrying any copies, she can print a blank form upon request. ECF No. 66 at 10; Mathews Decl. ¶¶ 5, 7. First, the generalized policies identified in this declaration fail to refute Plaintiffs’ specific testimony about their personal experiences attempting to obtain (and being refused) grievance forms. Moreover, the policies themselves corroborate Plaintiffs’ assertions once all the relevant facts are considered. As Mathews attests, it is the correctional counselor, not a correctional officer, that restocks the box and can print blank forms. However, since the pandemic began, correctional counselors have appeared at a dormitory cell infrequently. Bernal Decl. ¶ 14 (only once to three times a week); Supp’l Blanco Decl. ¶ 7, Ex. 1 (used to come in almost every day, but “hasn’t been coming in as often” since the pandemic began); Supp’l Cruz Decl. ¶ 7, Ex. 2 (counselor “[f]inally” appeared at his cell at the beginning of April). Given the infrequency of the counselors’ presence (compared to the officers stationed inside the cell), this evidence supports a finding that when a box of forms is depleted, it is not restocked with frequency. It also supports a finding that during the vast majority of the time when there is no correctional counselor in the dormitory cell, there is no one to print a blank form upon request. See Mathews Decl. ¶ 6. Accordingly, where—as here—the box is empty and has not been restocked, correctional officers do not have grievance forms on their person or at their desk, and the correctional counselor is unavailable, grievance forms are unavailable.
Remarkably, Defendants rely on the declaration of Officer Mayo, the only declarant with personal experience as an MDCR officer inside dormitory cell 2C2, to attest that he is unaware of any grievances filed by Plaintiffs Willis, Cruz, Flores, or Blanco and that he never refused to
5 Indeed, there is additional support in the record that grievance forms can and do run out. Although a declarant in a different dormitory cell than the Plaintiffs was able to file a grievance form on April 3, by April 22 “[t]here were no grievance forms in [his] dorm, and the guards did not supply [him or his cellmates] with forms when [they] asked.” Stuhlmiller Decl. ¶ 40, ECF No. 81-5.
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provide a grievance form. Mayo Decl. ¶ 16, ECF No. 65-7. However, this very officer underwent a fourteen-day quarantine and did not appear at work from March 25, 2020 to April 11, 2020, id. ¶ 9, the relevant time period at issue here. And although his and the remaining declarations of correctional officers filed by Defendants make conclusory statements that there were no shortage of grievance forms “at any point” in 2020, id. ¶ 16, ECF. 65-5 ¶ 19, ECF No. 65-6 ¶ 6, ECF No. 65-9 ¶ 12, such statements contradict the testimony of Correctional Counselor Supervisor Mathews as well as Defendants’ counsel’s own assertions that supplies had in fact been “running low” prior to the lawsuit. See Mathews Decl. ¶¶ 8-9; ECF No. 66 at 10.
Defendants’ remaining evidence is insufficient. For example, Defendants point to an “Inmate Grievance Report” (attached to the declaration of a MDCR employee) that purportedly identifies “all [the] grievances filed [at MDCR facilities] between January 1 and April 10, 2020,” Romero Decl. ¶ 4, ECF No. 66-4, and Defendants provide an edited version of this report in the body of the brief, ECF No. 66 at 9-10. Defendants argue that because, according to this report, twenty-two Metro West detainees filed a total of twenty-nine grievances in the two weeks prior to the filing of this lawsuit, grievance forms were amply available in Metro West. ECF No. 66 at 9.
This argument misses the point and ignores the relevant facts. Detainees at Metro West are housed across multiple different dormitory cells, and their access to grievance forms is limited to the supply of forms within their own cell and the MDCR officials with whom they interact in their cell. The possible presence of some forms in one or a handful of cells on any given day has no bearing on whether forms are available in all other cells. Moreover, the fact that certain detainees housed in other cells were able to obtain a grievance form does not contradict the Plaintiffs’ sworn statements that they were refused the forms they requested. Plaintiffs need not prove that everyone at Metro West was similarly thwarted from accessing the grievance process—they need only demonstrate that the grievance process was made unavailable to them.
Notably, Defendants edited out critical information from the Inmate Grievance Report when they provided a summary of the report in their brief. The original report, unlike the edited version in the brief, lists the dormitory cell number of the detainee who filed the grievance. Inmate Grievance Report, Romero Decl. Ex. A, ECF No. 66-4. From March 24, 2020 to April 5, 2020, there were no grievances filed from anyone housed in cell 2C2 (where Plaintiffs Blanco, Cruz, Flores, and Willis were held) or from anyone housed in cell 1D3 (where Plaintiffs Hill and
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Bernal were held). Accordingly, this Inmate Grievance Report corroborates, rather than contradicts, Plaintiffs’ assertions about the unavailability of grievances in their cells during the relevant time period.
Defendants also argue that an Inmate Services Administrator at MDCR “attests that none of the seven Plaintiffs filed a grievance between January 1 and April 10,” contrary to Plaintiffs’ assertions. ECF No. 66 at 10 (citing Romero Decl. ¶ 6). However, the cited declaration clarifies the Administrator’s sworn statement: that his review of the grievance records, presumably the attached Inmate Grievance Report “list[ing] all grievances filed system-wide,” demonstrates that no Plaintiff filed a grievance before filing this lawsuit. Romero Decl. ¶ 6, ECF No. 66-4. Evidence demonstrates that the grievance recordkeeping on which this statement relies is incomplete. For example, a detainee in a different dormitory cell than the Plaintiffs filed a grievance on April 3 and received a response denying the grievance with the explanation that “[t]his pandemic issue is beyond MDCR control,” yet his name does not appear on the Inmate Grievance Report filed by Defendants. Stuhlmiller Decl. ¶¶ 37-38, ECF No. 82-4; Stuhlmiller Grievance, Ex. 3. This fact alone—that Mr. Stuhlmiller is in possession of a document containing a written rejection of his grievance, but that he does not appear on Defendants’ list— fatally undermines Defendants’ evidence.6 Because MDCR’s grievance recordkeeping is not complete or credible, this evidence cannot contradict Plaintiffs’ sworn testimony that they filed grievances at the beginning of April.
Finally, Defendants argue that the information provided by Plaintiffs is insufficiently detailed, ECF. No. 66 at 10-11, but this argument is easily discredited by reviewing Plaintiffs’ sworn declarations and testimony before this Court.7 For example, Plaintiffs identified the dates
6 Stuhlmiller’s grievance form indicates that it was returned because Metro West staff deemed issues concerning the pandemic to be “non-grievable.” Notably, Defendants provide no evidence that MDCR is accurately and thoroughly documenting the grievances filed by detainees at Mero West or MDCR staff responses to those grievances (including whether the aggrieved issue was deemed non-grievable and the reasons justifying this decision), and they provide no records identifying the grievances filed by detainees that were rejected by staff. This is especially concerning given detainee experiences that the counselor is “known to be forgetful about grievances,” has “lost” their filed grievances, or informed detainees that the grievance they properly submitted will not ultimately be “file[d]” because the counselor believes “it would get denied.” Supp’l Blanco Decl. ¶ 10, Ex. 1. 7 Defendants’ reliance on three unpublished district court cases to challenge Plaintiffs’ sworn testimony does not survive scrutiny. See ECF No. 66 at 10-11. First, in Teran v. Johns, 2017 WL 4678220 (S.D. Ga. Oct. 17, 2017), Mr. Teran argued that the administrative remedy was unavailable because prison officers refused to give him the requested grievance forms. Id. at *3. However, it was the unique constellation of
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when they requested (but were refused) grievance forms, see Cruz Decl. ¶ 15; Prelim. Inj. Order at 29 n. 16 (summarizing Mr. Blanco’s testimony), ECF No. 100, and during Mr. Blanco’s testimony during the Preliminary Injunction hearing, he shared the names of the officials who refused his requests. The supplemental declarations of Mr. Blanco and Mr. Cruz provide similar and additional information, including the names of the officers who refused their requests, when they requested the forms, the officers’ actions and responses when the officers refused their requests, the reasons why they were limited to one grievance form each, the fact that they properly filed the grievance (in accordance with MDCR policy), the fact that no response has yet been provided, and actions done to follow-up on the filed grievance given the lack of response. Supp’l Blanco Decl. ¶¶ 6-9; Supp’l Cruz Decl. ¶¶ 6-9.
Accordingly, given that Defendants’ evidence corroborates and does not contradict Plaintiffs’ credible sworn testimony, the Court should find that the grievance procedure was not available to Plaintiffs. The motion should therefore be denied.
iii. In the alternative, Plaintiffs are entitled to discovery on the question of exhaustion.
The Court should deny Defendants’ motion outright for the two independent reasons discussed above. In the alternative, Plaintiffs are entitled to limited discovery on the issue of exhaustion before the Court rules on the motion to dismiss. As noted above, there are obvious questions about the accuracy and completeness of Defendants’ evidence, and many facts
facts that persuaded the district court to find the prison’s account to be more credible: although the form Mr. Teran used to file his petition asked why he had not filed a grievance, he “never mentioned” the denial of his requests for forms and instead “c[ame] up with [this] new [story]” for the first time in his reply; his bald statement said only that prison officials failed to provide him grievance forms, without any additional details; and the undisputed evidence also demonstrate that he filed numerous grievances during his incarceration. Id. None of those facts are present here. The details provided in Plaintiffs’ assertions also distinguish this case from Louis-Charles v. Baker, 2018 WL 5728054 (N.D.N.Y. July 30, 2018). The district court in that case was unpersuaded by Plaintiffs’ arguments for various other reasons: although he testified that he had refused grievance forms by the two supervisors allegedly responsible in the aggrieved incident, he admitted that he did not request a form from the other four supervisors accessible to him because he “wanted [the form] to come directly from’ the officers involved in the alleged incident,” and the court also found that the plaintiff’s arguments that he did not reach out to another officer due to his impending transfer to another jail “did not deprive him of a meaningful opportunity to access the grievance process.” Id. at *5-6. Again, none of those considerations apply to this case. And here, unlike in Filmore v. Cooper, 2020 WL 1275385 (M.D. Fla. Mar. 17, 2020), Plaintiffs provide factual detail explaining “who he asked,” “how many times he asked,” and why there were no “other measures to obtain the forms.” Id. at *6. The testimony provided here is credible, detailed, and far from conclusory. Id.
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regarding exhaustion lie squarely in Defendants’ possession and control. The Eleventh Circuit has noted that regarding exhaustion, the district court can properly consider facts outside the pleadings if “the parties have sufficient opportunity to develop a record,” and “‘the court has a broad discretion’” to determine the methods for resolving factual disputes. Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008) (citation omitted). District courts in this circuit have permitted discovery on the question of exhaustion. See, e.g.,Corporan v. Williams, No. 7:17-cv-124, 2019 WL 7176826, at *1 n.3 (M.D. Ga. May 23, 2019) (noting that the parties had been “allowed discovery on the issue of exhaustion”); Quinn v. Booz Allen Hamilton, Inc., No. 3:14-cv-111, 2014 WL 12323684, at *4 (N.D. Fla. Dec. 2, 2014) (providing the parties thirty days to conduct discovery on the issue of exhaustion on a federal whistleblower claim and an additional fourteen days to file a supplemental brief with evidentiary materials).
IV. CONCLUSION Defendants carry the burden to prove that Plaintiffs’ failed to exhaust available remedies.
They fail to do so. Accordingly, the Court should deny the motion to dismiss.8

Dated: May 15, 2020

Respectfully submitted,
/s/ Tiffany Yang Tiffany Yang, DC Bar. No. 230836 tyang@advancementproject.org (Admitted Pro Hac Vice 4/6/2020) Thomas B. Harvey, MO Bar. No. 61734 (Admitted Pro Hac Vice 4/6/2020) tharvey@advacementproject.org ADVANCEMENT PROJECT 1220 L Street NW, Ste 850 Washington, DC 20005 Tel: (202) 728-9557
Maya Ragsdale, Fla. Bar No. 1015395

8 Without any citation to caselaw, Defendants provide the conclusory statement at the end of their motion that “dismissal should be with prejudice.” ECF No. 66 at 12. In fact, given the facts and posture of this case, dismissal should be without prejudice if the Court were to grant Defendants’ motion. Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006) (“[T]he ‘[d]ismissal of a case with prejudice is considered a sanction of last resort, applicable only in extreme circumstances.’ Dismissal with prejudice is not proper unless ‘the district court finds a clear record of delay or willful conduct and that lesser sanctions are inadequate to correct such conduct.’”) (citations omitted).
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EAST\174197615.1

maya@dreamdefenders.org DREAM DEFENDERS 6161 NW 9thAve. Miami, Florida 33127 Tel: 786-309-2217
Alec Karakatsanis DC Bar No. 999294 (Admitted Pro Hac Vice 4/28/2020) alec@civilrightscorps.org Katherine Hubbard, DC Bar No. 1500503 (Admitted Pro Hac Vice 4/6/2020) katherine@civilrightscorps.org Alexandria Twinem, D.C. Bar No. 1644851 (Admitted Pro Hac Vice 4/6/2020) alexandria@civilrightscorps.org CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 2009 Tel: (202) 894-6126
Meena Jagannath, Fla. Bar No. 102684 meena@communityjusticeproject.com COMMUNITY JUSTICE PROJECT 3000 Biscayne Blvd. Ste 106 Miami, Florida 33137 Tel: (305) 907-7697
R. Quinn Smith, Fla. Bar No. 59523  quinn.smith@gstllp.com  Katherine Alena Sanoja, Fla. Bar No. 99137  katherine.sanoja@gstllp.com  GST LLP  1111 Brickell Avenue, Suite 2715  Miami, Florida 33131  Tel: (305) 856-7723
Lida Rodriguez-Taseff, Fla. Bar No. 39111 lida.rodriguez-taseff@dlapiper.com DLA Piper LLP (US) 200 South Biscayne Blvd., Ste 2500 Miami, Florida 33131 Tel.: (305) 423.8525
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Case 1:20-cv-21457-KMW Document 119 Entered on FLSD Docket 05/15/2020 Page 21 of 21 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 15, 2020 a true and correct copy of this document was electronically filed with the Clerk of the Court U.S. District Court, Southern District of Florida, using the CM/ECF system which will send notification of such filing to counsel of record.
/s/ Tiffany Yang Tiffany Yang
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Exhibit 1

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SUPPLEMENTAL DECLARATION OF ALEN BLANCO
I, Alen Blanco, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
1. My name is Alen Blanco. I am 39 years old. I am currently incarcerated at the Metro West Detention Center in Miami, Florida in cell 2C2.
2. When I filed this lawsuit, I felt that despite the fact that we rely on MDCR to protect us during this time of crisis, the protections they provided us were slim to none.
3. I began trying to file grievances during the time period between the end of March and the beginning of April. There were no grievance forms available in my cell until April 2, when I was finally able to get a grievance form from the social worker who comes into our cell.
4. There is a metal box where grievance forms are supposed to be kept. When I looked for grievance forms on March 31st, there were no grievance forms in the box. So I asked the officer in my cell who was working the shift at the time to please give me a grievance form.
5. When I asked, the officer looked inside of the drawer in their desk and told me that there were none. The officer told me that they would try to get it from the cell next door, but they never did.
6. I asked for grievance forms numerous times from March 31 and April 2. I specifically remember asking Officers Jackson, Wilkins, and Joseph. Each time, the same thing happened. They would look inside the drawer, find no grievance forms, say they’d ask in other cells, but they never did.
7. The social worker used to come in almost every day, but since coronavirus started, the social worker hasn’t been coming in as often. She hadn’t come into our cell on March 31st or April 1st. So when she came into our cell on April 2nd, I asked her for grievance forms. I was only able to get one grievance form because there were not enough grievance forms available for every person in my cell who wanted to file one.
8. I wrote a grievance about the jail not providing me with sufficient protection from COVID-19. I filed it on April 3rd. To this date, I have not received a response to my grievance.

Case 1:20-cv-21457-KMW Document 119-1 Entered on FLSD Docket 05/15/2020 Page 3 of 3
9. A few weeks after I still hadn’t received a response to my grievance form, I asked the counselor to please look into my grievance form. I told her I filed a grievance on April 3rd and asked her why I haven’t received a response. She told me she doesn’t know anything about it because she wasn’t there on April 3rd or April 4th, and so the forms probably wouldn’t have been picked up until Monday, the 6th. I asked her again to please look into it. I still haven’t heard back from her.
10. This social worker is known to be forgetful about grievances. I’ve heard other people in my cell say that she holds grievances, that she lost their grievance, or that she told them she wasn’t going to file it because it would get denied. It’s known in my cell that she has a problem filing grievances.
This declaration was orally sworn to by Alen Blanco on May 14, 2020 because the Metro West Detention Center is currently not permitting documents to be exchanged for signature.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Alen Blanco on May 14, 2020.
By: Maya Ragsdale Date: May 14, 2020

Case 1:20-cv-21457-KMW Document 119-2 Entered on FLSD Docket 05/15/2020 Page 1 of 3
Exhibit 2

Case 1:20-cv-21457-KMW Document 119-2 Entered on FLSD Docket 05/15/2020 Page 2 of 3
SUPPLEMENTAL DECLARATION OF BAYARDO CRUZ
I, BAYARDO CRUZ, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
1. My name is Bayardo Cruz. I am 30 years old. I am incarcerated at the Metro West Detention Center in Miami, Florida in cell 2C2.
2. During the month of March, I became extremely concerned for my life because from what I was hearing on the news, coronavirus was spreading throughout Miami and it was clear to me that MDCR was not providing anything for us to protect ourselves from the virus.
3. As a result, I wanted to file grievances asking for MDCR to take precautions to protect us.
4. At the end of March to the beginning of April, I tried to file a grievance, but there were no grievance forms available.
5. Grievance forms are supposed to be kept in a metal grievance box in the cell. However, the box was empty during the time period when I was trying to file a grievance. In fact, that box is usually empty. Even right now, there aren’t any grievance forms in that box.
6. Because the grievance box was empty, I asked guards about five times if they could get me a grievance form. I remember asking Officer Joseph and Officer Hopkins. When I asked, they looked into their desk for grievance forms, but there weren’t any forms available. Each of the guards told me I’d have to wait until the counselor came in and ask her for one.
7. Finally, the counselor came back in at the beginning of April. When she came back, I asked her for a grievance, which she gave me. I was only able to get a single grievance form because there were many other people in my cell who had been waiting to file a

Case 1:20-cv-21457-KMW Document 119-2 Entered on FLSD Docket 05/15/2020 Page 3 of 3
grievance and there were not enough forms to go around for everyone who wanted to file one. I wrote a grievance about MDCR’s failure to provide basic protections from COVID19. After I was done writing the grievance, I put it in the grievance box, where we are supposed to put grievance forms. 8. The counselor is supposed to pick up the grievance forms from that box. It’s a locked box, so she has to come with her key to pick up the grievance forms. 9. To this date, I still have not received a response to my grievance.
This declaration was orally sworn to by Bayardo Cruz on May 14, 2020 because the Metro West Detention Center is currently not permitting documents to be exchanged for signature. Under penalties of perjury, I declare that I have read the foregoing in its entirety to Bayardo Cruz on May 14, 2020.
By: Maya Ragsdale Date: May 14, 2020

Case 1:20-cv-21457-KMW Document 119-3 Entered on FLSD Docket 05/15/2020 Page 1 of 2
Exhibit 3

Case 1:20-cv-21457-KMW Document 119-3 Entered on FLSD Docket 05/15/2020 Page 2 of 2

MIAMI- -DADE CORRECTIONS

AND REHABILITATION DEPARTMENT

MIAMI-DA

Inmate Grievance

MATE NAME

CONTROL NUMBER

NUMBER

UNITICELLNUMBER

The inmate must complete and place this form into an inmate request drop box within 10 calendar days of when incident occurred. If an incident/situation

affects more than one inmate, each inmate must personally submit a separate

each complaint/grievance

must be submitted on a separate Inmate Grievance

complaint/grievance.

Also, if an inmate has more than one complaint/grievance

form. You must state what or who is the subject of the grievance, related dates

and places, and what effect the situation, problem, or person is causing.

State the title of any policy or standard that may be the subject of your grievance

if applicable

Attach copies of all forms (if applicable) used in an attempt to resolve your complaint.

If a specific staff member D Check if a staff member

is the subject of your grievance, is subject of your grievance

submit this form to a different staff member Name of the staff member

WHO IS NOT the subject of your grievance

PART I - PROVIDE SPECIFIC DETAILS OF YOUR GRIEVANCE

M
PARTII - WHAT: STEPS HAVE YOU TAKEN TO SOLVE THE GRIEVANCE?
S

PART III -WH

/ACTIONS ARE-YOU REQUESTNG7

LMC

I affirm that all

teme

ade are true and correct.

ignature PARTIV - GRIEVANCE RECEIVED

Staff Name (Print)

GRIEVANCE

RECENVED BYAIMP GRIEVANCE CATEGORY

Signature EMERGENT / NON-EMERGENT

Date
TIME I DATE

PARTV- GRIEVANCE

Staff Name (Print) RETURNED TO INMATE FOR THE FOLLOWING

REASON

INCOMPLETE

MORE THAN 1COMPLAINT AND 1 NAME ON FORM

Signature OFFENSIVE OR FRIVOLOUS

My signature below affirms that I have been informed this grievance fo

Is returned unprod essed Yor

39.82 ,PPB.146C
134 01-53 1/20

Inmate Signature

Distribution

White Copy RPSB File
Page 1 of 2

Pink Copy Inmate

ON-GRIEVABLE CONCERN/ISSUE
reason ind
4
Date E R01-06-20

 
 Case 1:20-cv-21457-KMW Document 122 Entered on FLSD Docket 05/15/2020 Page 1 of 7

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

ANTHONY SWAIN, et al., individually and on behalf of all others similarly situated,

Plaintiffs, v.

Case No.: 1:20-cv-21457-KMW

DANIEL JUNIOR, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department, et al.,

Defendants. _____________________________________/

PLAINTIFFS’ REPLY IN SUPPORT OF EMERGENCY MOTION TO RELEASE PLAINTIFF ANTHONY SWAIN ON BAIL PENDING REVIEW OF THE CLASS ACTION HABEAS PETITION

In their opposition brief to the emergency motion, ECF No. 118, Defendants mischaracterize various facts and misconstrue the relevant legal standards. In light of the urgency of Plaintiff Anthony Swain’s request for release on bail given his active diagnosis of COVID-19, his unique medical vulnerabilities, and the new evidence of extraordinary circumstances, Plaintiffs provide the following abbreviated reply to address these misstatements.1
First, Defendants argue that this Court has already denied Mr. Swain’s request for release and that his latest supplemental declaration “offers no basis” for the Court to revisit its prior ruling. ECF No. 118 at 1. Not so. In the Court’s order on Plaintiffs’ motion for preliminary injunction, it did not find a likelihood of success on the merits of the 28 U.S.C. § 2241 habeas claim on a class-wide basis for the medically vulnerable — but it noted the claim’s continued “viability” and observed that evolving circumstances may “necessitate revisiting this determination.” ECF No. 100 at 48-49 & n.24. The emergency motion asks that Mr. Swain be

1 Defendants correctly highlighted in their opposition brief a misstatement made by Plaintiffs’ counsel: that Mr. Swain had “never been arrested prior to [his current] charges.” ECF No. 118 at 2 (quoting ECF No. 116 at 5). Plaintiffs’ counsel regrets the error. What this statement was intended to convey was the understanding that Mr. Swain has never been convicted of a crime prior to his current charges.
1

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considered on an individual basis while the Court’s ultimate decision on the class action habeas petition is pending.
Defendants also ignore the presence of new, compelling evidence about Defendants’ deliberate indifference at Metro West that was not available when the Court addressed the motion for preliminary injunction (including the death of Mr. Hobbs, a detainee who experienced severe COVID-19 symptoms before his passing, unrebutted testimony from multiple declarants about the medical neglect experienced by Mr. Hobbs in his last days and hours, the inadequate care provided to Mr. Swain when he experienced COVID-19 related symptoms, his current medical concerns, and his active COVID-19 diagnosis) that provides a glimpse of the desperate situation that Mr. Swain now confronts. These are precisely the “evolving circumstances” that merit the Court making a determination on an individual basis for Mr. Swain.
The attached declaration of another detainee who was at Metro West further corroborates the sworn testimony already provided by Plaintiffs to the Court.2 Mr. King, who was at one point in the same cell as Charles Hobbs, joins the chorus of testimony that people who test positive at Metro West are transferred to and confined together in coronavirus cells. King Decl. ¶ 15, Ex. 1. Mr. King’s sworn statements also lend additional support to the accounts of medical neglect shared by Mr. Swain and cellmates of Mr. Hobbs. When Mr. Hobbs passed out and his “face smashed onto the table,” the medical emergency unit never responded when called—officers had to rely on another detainee to “wheel him down” to the clinic. King Decl. ¶ 10. And despite all his serious symptoms prior to the day he passed out, including a high fever, “bad[]” cough, congested nose and “seem[ingly]” “failing” respiratory system, Mr. Hobbs had not yet been tested for the virus or seen by a doctor. Id. ¶¶ 9-10, 13.
During that same time, Mr. King was experiencing serious symptoms himself: he had fevers between 102 and 105 degrees for multiple days, experienced headaches, diarrhea, vomiting, and dizzy spells, lost his sense of taste, and lost the ability to eat or drink. Id. ¶¶ 6-7. At one point, he became “so dehydrated” that he passed out in the shower. Id. ¶ 7. When the
2 Defendants claim, without citation or supporting evidence, that the facts contained in Mr. Swain’s declaration “are overwhelmingly false, particularly his inaccurate claims that Defendants are deliberately indifferent and purportedly failed to give him prompt medical treatment.” ECF No. 118 at 2-3. The sworn testimony of detained declarants attached to the emergency motion to release Plaintiff Bayardo Cruz on bail, ECF No. 109, as well as further evidence attached to this reply, provide a compelling corroboration of Mr. Swain’s general assertion of deliberate indifference and inadequate medical care.
2

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nurses took his temperature and read his 100+ fevers to him, they gave him Tylenol, then waited fifteen minutes before taking his temperature again. Id. ¶ 6. They “repeat[ed] this process over and over again” until his temperature fell below 99 degrees, which was the temperature they then wrote down in their notes. Id. Mr. King was taken to the clinic after he passed out, but they provided no treatment besides Ensure (a protein drink) and Gatorade, and he does not recall seeing a doctor. Id. ¶¶ 7-8. Mr. King “felt like [he] was being left to die.” Id. ¶ 8. He was eventually moved to a coronavirus cell in early May; by that time, he was “going in and out of consciousness.” Id. ¶ 15. He continued to exist in this state for a time, where he was “black[ing] out,” “barely conscious” and “not responsive,” and when his fever spiked to 108 degrees he was ultimately transferred out of Metro West. Id. ¶¶ 17-18. He is now at Turner Guilford Knight Correctional Center, id. ¶ 20, where Defendants say Mr. Swain is currently being confined, ECF No. 118 at 4.
The tragic experience of Mr. King, like the recent experience of Mr. Swain and the fatal experience of Mr. Hobbs, is new evidence of extraordinary circumstances in this case that merit Mr. Swain’s individual release on bail. See also ECF No. 109 at 4-5 (summarizing new evidence); ECF No. 116 at 2-5, 6-8 (summarizing new evidence). Defendants provide no evidence contradicting any of the sworn evidence submitted by Plaintiffs, all of which corroborates a multitude of declarations alleging similar medical neglect for months.
Defendants also insist, without evidentiary support, that Mr. Swain was not hospitalized for COVID-related symptoms — but they acknowledge that he experienced shortness of breath, tachycardia, and chest pain. ECF No. 118 at 3. It is undisputed that the Centers for Disease Control and Prevention identifies both “[t]rouble breathing” and “[p]ersistent pain or pressure in the chest” as “emergency warning signs” for COVID-19 that require “emergency medical care.”3 Moreover, Defendants also acknowledge that Mr. Swain did in fact test positive for COVID-19. ECF No. 118 at 3. Defendants attempt to minimize Mr. Swain’s condition by asserting that he did not require respiratory support or oxygen supplementation when he was hospitalized, ECF No. 118 at 3, but these exigent and severe interventions are required only for the most advanced symptoms—that Mr. Swain thankfully did not require such interventions in the last few days has
3 See ECF No. 116 at 3 (identifying shortness of breath as a symptom of COVID-19); “Symptoms of Coronavirus,” Centers for Disease Control and Prevention (last visited May 3, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html.
3

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no bearing on whether his condition will worsen as the disease progresses, given his active diagnosis and his pre-existing conditions.
Moreover, Defendants provide no basis for insisting that Mr. Swain rely on a state court process that he has already engaged in and that has failed to either schedule a hearing or produce a ruling in the month that has passed since he filed his emergency motion to reduce bond. ECF No. 95-2. Defendants attempt to place the blame at the feet of Mr. Swain or his attorney, ECF No. 118 at 4-5, but the undisputed fact remains that the state court has not set a hearing or ruled on a motion that has now, in the midst of an escalating pandemic, been pending for a full month (and which was followed by a supplement asking the court again to take action). Defendants instead rely on Judge Sayfie’s rebutted testimony that state court criminal judges are hearing motions for release en masse “on an expedited and daily basis,” ECF No. 118 at 5, but this generalized testimony is belied by Mr. Swain’s actual experience of a month-long delay — and it is Mr. Swain’s individual request for bail that is before the Court.
Defendants also argue that the court’s unreasonable delay in resolving Mr. Swain’s case “does not render the entire process unavailable,” especially given the release of others in the interim time period, id. — but Defendants confuse the relevant standard. Mr. Swain need only demonstrate that the state court remedy is unavailable to him, not to everyone detained at Metro West. The shifting goal posts in Defendants’ arguments are notable: during the preliminary injunction hearing, Defendants argued that Mr. Swain had never filed a bail reconsideration motion and, if he had, it would be heard within days; Mr. Swain then filed a copy of the April 15 motion with the Court, demonstrating not only that he had filed a motion, but that it had not even been scheduled to be heard in the thirteen days since filing, ECF No. 95, 95-2; now, they argue it is Mr. Swain’s fault that the very process they claimed to be expedient has inexplicably failed him, ECF No. 118 at 4-5. The copy of the motion that is already in the record demonstrates that he has presented the relevant constitutional claims to the state court, ECF No. 95-2, contrary to Defendants’ inaccurate assertion, ECF No. 119 at 5.
The delay that the state court process has already demonstrated, especially given Mr. Swain’s medical vulnerability as well as his recent diagnosis of COVID-19, amounts to futility and prejudice that excuses an obligation to exhaust. See, e.g., Martinez-Brooks et al. v. Carvajal, No. 3:20-cv-00569-MPS (D. Conn. filed May 12, 2020), Ruling on Mot. for Temporary Restraining Order and Mot. to Dismiss, ECF No. 30, at 39-40 (excusing plaintiffs from
4

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exhaustion given that “the rapid spread of COVID-19 at [the correctional facility],” the delays in the Warden’s determination of compassionate release and home confinement requests, and the prison’s two-layered review of the Warden’s decision provided “sufficient facts to support a finding” of undue prejudice from delay); see also Granberry v. Greer, 481 U.S. 129, 134 (1987) (exhaustion is excused “in rare cases where exceptional circumstances of peculiar urgency are shown to exist”). And as noted in the emergency motion, Judge Sayfie has testified that Mr. Swain’s only recourse would be the extraordinary writ of mandamus, and longstanding precedent states that a person is not required to pursue extraordinary writs to exhaust. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
Finally, Defendants cite no case suggesting there is a jurisdictional bar to hearing an individual request for temporary release on bail relating to a habeas claim while Defendants appeal the preliminary injunction concerning a separate § 1983 claim, let alone any case barring such emergency consideration based on new information.
Accordingly, in light of the new evidence of extraordinary circumstances and Mr. Swain’s unique medical vulnerability, Plaintiffs request that he be released on bail pending the Court’s ultimate decision on the class action habeas petition.

Dated: May 15, 2020

Respectfully submitted,
/s/ Tiffany Yang Tiffany Yang, DC Bar. No. 230836 tyang@advancementproject.org (Admitted Pro Hac Vice 4/6/2020) Thomas B. Harvey, MO Bar. No. 61734 (Admitted Pro Hac Vice 4/6/2020) tharvey@advacementproject.org ADVANCEMENT PROJECT 1220 L Street NW, Ste 850 Washington, DC 20005 Tel: (202) 728-9557
Maya Ragsdale, Fla. Bar No. 1015395 maya@dreamdefenders.org DREAM DEFENDERS 6161 NW 9thAve. Miami, Florida 33127 Tel: 786-309-2217
5

Case 1:20-cv-21457-KMW Document 122 Entered on FLSD Docket 05/15/2020 Page 6 of 7
Meena Jagannath, Fla. Bar No. 102684 meena@communityjusticeproject.com COMMUNITY JUSTICE PROJECT 3000 Biscayne Blvd. Ste 106 Miami, Florida 33137 Tel: (305) 907-7697
Alec Karakatsanis DC Bar No. 999294 (Admitted Pro Hac Vice 4/28/2020) alec@civilrightscorps.org Katherine Hubbard, DC Bar No. 1500503 (Admitted Pro Hac Vice 4/6/2020) katherine@civilrightscorps.org Alexandria Twinem, D.C. Bar No. 1644851 (Admitted Pro Hac Vice 4/6/2020) alexandria@civilrightscorps.org CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 2009 Tel: (202) 894-6126
R. Quinn Smith, Fla. Bar No. 59523  quinn.smith@gstllp.com  Katherine Alena Sanoja, Fla. Bar No. 99137  katherine.sanoja@gstllp.com  GST LLP  1111 Brickell Avenue, Suite 2715  Miami, Florida 33131  Tel: (305) 856-7723
Lida Rodriguez-Taseff, Fla. Bar No. 39111 lida.rodriguez-taseff@dlapiper.com DLA Piper LLP (US) 200 South Biscayne Blvd., Ste 2500 Miami, Florida 33131 Tel.: (305) 423.8525
6

Case 1:20-cv-21457-KMW Document 122 Entered on FLSD Docket 05/15/2020 Page 7 of 7 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 15, 2020 a true and correct copy of this document was electronically filed with the Clerk of the Court U.S. District Court, Southern District of Florida, using the CM/ECF system which will send notification of such filing to counsel of record.
/s/ Tiffany Yang Tiffany Yang
7

 
 Case 1:20-cv-21457-KMW Document 125 Entered on FLSD Docket 05/18/2020 Page 1 of 12

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

ANTHONY SWAIN, et al., individually and on behalf of all others similarly situated,
Plaintiffs, v.
DANIEL JUNIOR, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department, et al.,
Defendants. _____________________________________/

Case No.: 1:20-cv-21457-KMW

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR CONVENING OF THREE-JUDGE PANEL (ECF 85)

One important fact in this case is clear: Metro West currently detains too many people to allow medically necessary social distancing. And without such social distancing, the record evidence establishes that COVID-19 will continue to infect the human beings detained at Metro West. Indeed, the Defendants’ deliberate indifference to the medical needs of prisoners afflicted with the disease has already claimed one life. In considering this motion, it is appropriate for this Court to make the factual findings related to deliberate indifference that it deferred in its preliminary injunction opinion and to conclude that the prerequisites for convening a three-judge panel under the PLRA are met. Only that tribunal can provide the relief that is necessary to save lives, if Plaintiffs prove their case to that tribunal by “clear and convincing” evidence. Defendants raise a flurry of arguments in opposition to this clear and common sense proposition, but none are persuasive. I. The Court Has Jurisdiction to Hear This Case.
Defendants’ threshold jurisdictional argument—that this Court cannot “take any action that would advance the injunctive relief that Plaintiffs seek,” ECF 115 at 3 (emphasis added)— misunderstands the legal precedent on interlocutory appeals. Neither an appeal of, nor a stay of, a preliminary injunction divest this Court of jurisdiction over deciding other motions related to the merits of this case.
“[A]n interlocutory appeal does not completely divest the district court of jurisdiction.” Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1309 (11th Cir. 2003); 16A Wright & Miller, Federal Practice and Procedure § 3949.1 (4th ed.) (“An interlocutory appeal

1

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ordinarily suspends the power of the district court to modify the order subject to appeal, but does not oust district-court jurisdiction to continue with proceedings that do not threaten the orderly disposition of the interlocutory appeal.”); 11A Wright & Miller, Federal Practice and Procedure § 2962 (similar). Rather, an appeal of a district court’s preliminary injunction only divests the district court of jurisdiction to enforce or alter that preliminary injunction. See Fed. R. Civ. P. 62(c); Resolution Trust Corp. v. Smith, 53 F.3d 72, 76 (5th Cir. 1995); see also Moltan Co. v. Eagle-Picher Industries, Inc., 55 F.3d 1171, 1174 (6th Cir. 1995) (interlocutory appeal from the district court’s preliminarily injunction order did not divest the district court of jurisdiction to continue with the merits of litigation while the appeal from its interlocutory ruling was pending); Janousek v. Doyle, 313 F.2d 916, 921 (8th Cir. 1963) (district court had jurisdiction to dismiss an action while an appeal was pending from the denial of plaintiff's motion for a temporary injunction). Indeed, it is commonplace for district courts to render final merits decisions while an appeal of a preliminary injunction is pending. See, e.g., Heron Dev. Corp. v. Vacation Tours, Inc., 763 F. App’x 875, 876 (11th Cir. 2019) (recognizing district court’s ability to allow amended complaint and rule on motion to dismiss while appeal of preliminary injunction was pending).
Likewise, an order staying a preliminary injunction pending appeal does not divest a district court of authority to rule on other matters in the case. See 11A Wright & Miller, Federal Practice and Procedure § 2962 (recognizing that only a complete stay of lower court proceedings prevents a district court from ruling during pendency of appeal); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Stidham, 658 F.2d 1098, 1100 & n.4 (5th Cir. Unit B Oct. 15, 1981) (recognizing district court’s power to rule on permanent injunction even while preliminary injunction was stayed pending appeal).1 Nothing short of a complete stay of proceedings divests a district court to decide other motions, particularly in a fast-moving case like this, where the relevant facts are constantly evolving. Motions are thus beyond the district court’s jurisdiction only if a ruling on the motion would directly “alter[] the status of the case as it rests before the Court of Appeals.” Dayton Indep. Sch. Dist. v. U.S. Mineral Prods. Co., 906 F.2d 1059, 1063 (5th Cir. 1990); see also Green Leaf Nursery, 341 F.3d at 1309 (similar). This is a high bar, and the Eleventh Circuit has
1 Federal Rule of Civil Procedure 62(g) recognizes that appellate courts possess both the right to “stay proceedings . . . while an appeal is pending” and the right to, alternatively, “suspend, modify, restore, or grant an injunction” while the appeal is pending. Here, Defendants acknowledge that they only requested, and were only granted, a stay of the injunction rather than a stay of all litigation in this Court. See ECF 115 at 3.
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only found a court divested of jurisdiction to rule on a separate motion where that decision would fundamentally change the question pending before the Court of Appeals. See Green Leaf Nursery, 341 F.3d at 1309 (holding that district court could not grant leave to amend complaint to delete claims that were the subject of pending appeal but could rule on other motions not directly related to appeal); Doe, 1-13 ex rel. Doe Sr. 1-13 v. Bush, 261 F.3d 1037, 1064 (11th Cir. 2001) (holding that district court lacked jurisdiction to enter class certification order when issue on appeal was whether court exceeded its authority by granting relief without certifying a class). And neither an appeal nor a stay pending appeal “prevent[s] applicants from seeking new relief in the District Court, as appropriate, based on changed circumstances.” Valentine v. Collier, 2020 WL 2497541, at *3 (U.S. May 14, 2020) (Sotomayor, J., statement respecting the denial of application to vacate the stay). Although Defendants repeatedly assert that this Court lacks jurisdiction to decide any issues “related” to the issue on appeal, this novel suggestion has no basis in case law. To the contrary, it is only when the district court would alter the very judgment on appeal or alter the case in a way that would prevent the Court of Appeals from ruling on the question presented that a court exceeds its jurisdiction.2
No such concerns are implicated here. The Plaintiffs’ motion to convene a three-judge panel does not in any way affect the Court’s preliminary injunction opinion, which is what is currently before the Eleventh Circuit. Nor would this Court’s ruling be akin to enforcing the preliminary injunction. Defendants do not disagree: They do not argue that this Court’s ruling would in some way undermine or alter the case before the Eleventh Circuit. Instead, they argue the exact opposite—that the Eleventh Circuit’s decision on deliberate indifference might inform any decision this Court makes because this Court must find deliberate indifference. ECF 115 at 34. But that is not the standard. And given the emergency nature of this case and its rapidly changing facts, this Court should decide the freestanding motions before it because the necessity of taking action during the pandemic to reduce the jail population is measured in days, not months. The practical reality is this: the record in this case, including the shared opinion of the two independent infectious disease experts appointed by this Court, establishes that the release of enough people to
2 Based on Defendants’ own logic, this Court would be without jurisdiction to rule on their motion to dismiss because this Court’s ruling would decide questions “related to” Plaintiffs’ claims and this Court’s legal rulings in its preliminary injunction order. But that is incorrect: no part of the merits of this case is before the Eleventh Circuit. The only subject of the appeal is a preliminary injunction order that is legally distinct from any merits determination this Court makes.
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allow for adequate social distancing is the only way to reduce the risk of serious illness and death to prisoners, guards, and the general public. An untold number of additional Metro West inmates and staff will suffer the serious, often permanent, effects of COVID-19 if the process for convening the three-judge panel is delayed another month.
What’s more, the Eleventh Circuit’s stay order does not address, let alone undermine, the legal standard to prove a deliberate-indifference violation for purposes of a prisoner release order. This is not an oversight: The Supreme Court has made clear that a prisoner release order is appropriate where a prison’s crowding makes “the provision of [medical] care difficult or impossible to achieve,” even if the reasons for that crowding were beyond the control of defendants. Brown v. Plata, 563 U.S. 493, 502 (2011). In Brown, the Court recognized that the reasons for the prison’s crowding included the state legislature’s indefinite delay of funding to construct new prisons, the state’s lack of resources to transfer a sufficient number of prisoners to other facilities, and unwillingness of medical professionals to work at the dangerous and overcrowded prison. Id. at 527-29. Nevertheless, it held that plaintiffs had proven an Eighth Amendment violation and were entitled to a prisoner release order. Id. at 502, 545; see also id. at 567 (Alito, J., dissenting) (invoking deliberate indifference standard). The Eleventh Circuit could not hold that the deliberate indifference standard was not met in this case for purposes of a prisoner release order without running afoul of Brown. At the very least, the stay order cannot be read to reach such a conclusion without even citing or discussing Brown’s contrary holding. The stay panel merely concluded that it was improper for this Court, at least without resolving the factual disputes concerning the actual conditions, to order Defendant Junior to exercise his discretion differently over matters that he does control by faulting him for things beyond his control.
But there is a difference between faulting a municipal actor for “deliberate indifference” to things in his discretion and holding that following state law to enforce state court orders in a manner that creates an intolerable risk of illness and death renders a state law actor “deliberately indifferent” for purposes of population reduction. For the purposes of the remedy of release, Defendant Junior is a classic Ex Parte Young defendant acting as a state actor without discretion to enforce state laws, see Doc. 85 at 37-41; McNeil v. Community Probation Servs., Inc., 945 F.3d 991, 996 (6th Cir. 2019); Moore v. Urquhart, 899 F.3d 1094, 1103 (9th Cir. 2018), cert. denied sub nom. Johanknecht v. Moore, No. 18-1056, 2019 WL 569983 (U.S. May 20, 2019), and a quintessential feature of Ex Parte Young defendants is that they may not have discretion under
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state law to act differently. The facts this Court has already found regarding the serious risk of COVID-19, the impossibility of social distancing, and that social distancing is the “cornerstone” of preventing infection of detainees at Metro West3 compel the convening of a three-judge panel.
In any event, even if the Court’s previous factual findings are insufficient to establish deliberate indifference as to the need to consider a prisoner release order, there is ample evidence for this Court to make the factual findings about Defendants’ deliberate indifference that it declined to make when granting the motion for preliminary injunction. The Eleventh Circuit credited Defendants’ affidavits regarding the policies they purportedly adopted because this Court “accepted as true that the defendants implemented these measures . . . and did not resolve any factual disputes in favor of the plaintiffs.” Stay Order at 3, Swain v. Junior, No. 20-11622-C (11th Cir. May 5, 2020). But as this Court recognized in its opinion, Plaintiffs have adduced substantial evidence in the form of interlocking and corroborating declarations that Defendants have consistently, knowingly failed to actually implement its policies in any meaningful way. See ECF 100 at 12-19. And Plaintiffs have since provided overwhelming new evidence showing severe medical neglect of COVID-positive inmates in multiple housing units by numerous guards and medical staff, ultimately leading to the death of a man detained at Metro West. See ECF 109-1 (Arrington Decl.) ¶¶ 5-14; ECF 109-2 (Garcia Decl.) ¶¶ 7-16; ECF 122-1 (King Decl.); Ex. 1 (Marinho Decl.) ¶¶ 22-29; Ex. 2 (Brown Decl.) ¶¶ 12-19; Ex. 3 (Benn Decl.) ¶¶ 10-16.4. This evidence demonstrates institutional behavior that, if credited, unquestionably constitutes deliberate indifference, and Defendants have not challenged it. And that deliberate indifference urgently exacerbates the risk of serious illness. When resolving the factual background for this motion, the Court should therefore find as a factual matter that Defendants have exhibited subjective deliberate indifference. Such a finding is not “related” to the Court’s preliminary injunction order, which was stayed in part for allegedly “collaps[ing] the subjective and objective components” of deliberate
3 ECF 100, at 7-8, 12-16, 34-35, 37-41. 4 One declarant with a fever was given nothing more than a Tylenol before being returned to the general population—days later, when he was finally tested for COVID-19, he tested positive. Marinho Decl. ¶¶ 6-12; see also Brown Decl. ¶¶ 8-10. While in the COVID-positive cell, he was unable to socially distance and often had no soap. Marinho Decl. ¶¶ 16-18. And although he has tested positive for COVID-19 and experienced serious symptoms, he has not been seen by a doctor or received any medical treatment beyond temperature checks and blood pressure tests. Id. ¶ 20; see also Benn Decl. ¶¶ 4-7.
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indifference by not finding as a factual matter that Defendants had exhibited subjective deliberate indifference. II. A Three-Judge Panel Is Warranted.
There are only two findings that a district court must make to begin the process of convening a three-judge panel under the PLRA. First, the court must find that it has “previously entered an order for less intrusive relief that has failed to remedy the deprivation” of a federal right. Brown, 563 U.S. at 514 (quoting 18 U.S.C. § 3626(a)(3)(A)(i)). Second, the court must find that the defendants have had “a reasonable amount of time to comply with the previous court orders.” Id. (quoting 18 U.S.C. § 3626(a)(3)(A)(ii)). Both criteria are satisfied here. This Court entered a temporary restraining order on April 7, 2020 that was less intrusive than a release order. See ECF 25. For the reasons stated in this Court’s order granting a preliminary injunction, along with Plaintiffs’ extensive evidence, that order has failed to remedy the unconstitutional exposure to a serious risk of infection and death. And because Defendant Junior himself concedes that, as a state actor enforcing court orders, he cannot depopulate the jail without a court order no matter how much time he is given, he has been given a “reasonable” amount of time to comply with that TRO.
A. This Court Need Not Rule on Crowding Defendants primarily argue that a three-judge panel is unwarranted because Metro West is operating “below its rated inmate capacity.” ECF 115 at 7. According to Defendants, a jail cannot be “overcrowded”5 if it is operating below its rated capacity. As a preliminary matter, Defendants cite no authority for this proposition, let alone address that the unique facts of an unprecedented viral pandemic might change a facility’s safe population threshold. But this Court is not required to decide whether crowding is the primary cause of Plaintiffs’ constitutional deprivation. That is a decision a three-judge panel must make, and it is irrelevant to whether this Court should convene such a panel. See 18 U.S.C. § 3626(a)(3)(E) (requiring threejudge panel to determine whether “crowding is the primary cause of the violation” alleged by plaintiffs); Brown, 563 U.S. at 514 (identifying the two findings the district court must make); Mays v. Dart, 2020 WL 1987007, at *32 (“The [district] judge need not consider the likelihood of whether a three-judge court would issue a prisoner release order.”).
5 The word “overcrowded” does not appear in the PLRA. Instead, a three-judge panel may only enter a prisoner release order if it finds that “crowding is the primary cause of the violation of a Federal right.” 18 U.S.C. § 3626(a)(3)(E)(i) (emphasis added).
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Second, even if this Court considered whether Metro West is “crowded,” nothing in the PLRA ties the concept of “crowding” to the jail’s rated capacity. To the contrary, Brown found the
PLRA satisfied because there was a severe “shortfall of resources relevant to demand” that created “significant delays in treatment” for mentally ill prisoners. 563 U.S. at 518-19. The Court further concluded that the crowding created “unsafe and unsanitary living conditions,” in which “large numbers of prisoners may share just a few toilets and showers,” rendering these shared facilities
“breeding grounds for disease.” Id. The Court relied on the testimony of experts that such violations could not be cured without reducing the prison population. Id. The Supreme Court reached these conclusions without reference to the approved capacity of the prison. This Court has before it the same type of information considered in Brown, including expert testimony and the
independent inspection report it ordered, all of which conclude that Metro West cannot be made sufficiently safe unless the jail’s population is reduced. See ECF 100, at 7-8, 12-16, 34-35, 37-41
(collecting uncontested evidence of crowding at Metro West); ECF 70-1 (inspection report); ECF 80-33 (Greer Decl.); ECF 80-34 (Rottnek Decl.); ECF 80-35 (Franco-Paredes Decl.).6
6 The cases cited by Defendants (ECF 115 at 7-8) are not to the contrary. In Mays, the district court explicitly recognized that it need not consider the issue of crowding before deciding whether to convene a three-judge panel. 2020 WL 1987007, at *32. In Huerta v. Ewing, the court concluded that it had never entered a previous order, and therefore it did not have the authority to convene a panel. 2018 WL 780509, at *2 (S.D. Ind. Feb. 8, 2018). In Gilette v. Prosper, the court concluded that the defendants had not yet had a reasonable time to comply with its previous order because the monitor had reported that they were “starting to make positive strides toward compliance” of a broad remedial order. 2016 WL 912195, at *7 (D.V.I. Mar. 4, 2016). Rigsby v. Arizona concerned a plaintiff’s failure to submit any evidence showing that the prerequisites for a three-judge panel had been satisfied. 2013 WL 1283778, at *5 (D. Ariz. Mar. 28, 2013). As Defendants’ own parenthetical makes clear, Coleman v. Newsom is inapt because there, the three-judge panel found that COVID-19 was a new circumstance that warranted consideration before a district court before a three-judge panel could be convened, not that a three-judge panel might not be warranted after consideration in the first instance by the district judge. 2020 WL 1675775, at *7 (E.D. Cal. Apr. 4, 2020). In Plata v. Newsom, the district court concluded that the plaintiffs had not proven an Eighth Amendment violation because they agreed at oral argument that if the defendants followed through on their plan to implement a social-distancing plan created by the Receiver, social distancing would be possible at the facility, and any constitutional violation would be cured. Relief was therefore unwarranted. 2020 WL 1908776, at *7, *11 (N.D. Cal. Apr. 17, 2020). However, the court concluded that if it had found deliberate indifference, that a three-judge panel would be required because plaintiffs argued “population density must be reduced to alleviate crowding.” Id. at *10. In Money v. Pritzker, the court only interpreted the meaning of a “prisoner release order” under the PLRA and whether the district court had authority to enter such an order, it did not
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B. Defendants Have Had Reasonable Time to Comply Defendants argue that they have not had reasonable time to comply with the temporary restraining order, and that convening a three-judge panel would be premature. But this argument flies in the face of Defendants’ briefing—both before this Court and to the Eleventh Circuit— arguing that 1) it has fully complied with, and will voluntarily continue to comply with, all of the terms of the Court’s temporary restraining order and preliminary injunction, and 2) Defendants have no authority to reduce the population of Metro West.7 Given these undisputed facts, Defendants have had reasonable time to comply under the circumstances—there is literally nothing more the Defendants could do to reduce crowding (indeed, that appears to be their legal defense on the merits). Under such circumstances, this Court need not wait around doing nothing while more time passes and more lives are lost. See Brown, 563 U.S. at 516 (explaining that a court is not required to institute an “unnecessary period of inaction [that] would delay an eventual remedy and would prolong the courts’ involvement” to meet the requirements of 18 U.S.C. § 3626(a)(3)(A)(ii)). Indeed, Brown articulated that further orders and more time are not necessary when they are unlikely to succeed, to say nothing of a situation like this case where further orders and more time is guaranteed to fail. See Brown, 563 U.S. at 516 (“[T]he District Courts were not required to wait and see whether their more recent efforts would yield equal disappointment.”). This case is thus fundamentally different from Mays and Gillette, in which courts found that a reasonable time had not yet passed because the defendants were making significant progress in curing the alleged constitutional violations and were likely to make further progress in doing so. See Mays, 2020 WL 1987007, at *34 (“Unlike in Brown, however, the ongoing remedial efforts in this case might remedy the ongoing constitutional violation . . . if given adequate time.”); Gillette, 2016 WL 912195, at *7 (D.V.I. Mar. 4, 2016). But in Mays, the court recognized that, absent the possibility that more time would allow defendants to cure the constitutional violation, a matter of days might be a “reasonable amount of time” given the extreme and unprecedented nature of COVID-19:
suggest whether one might be appropriately entered in that case by a three-judge panel because no predicate relief had been previously ordered. 2020 WL 1830660, at *14 (N.D. Ill. Apr. 10, 2020). 7 ECF 67 at 13-24, 27; ECF 92-2 ¶ 7; ECF 102 at 2; Mot. to Stay Inj. at 12-13, Swain v. Junior, No. 20-11622-C (11th Cir. Apr. 30, 2020). Defendants made similar representations before the Court during its preliminary injunction hearing. The transcript of that hearing has not yet been made available.
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The Court recognizes that determination of what amounts to a “reasonable time” to comply with a court’s previous orders may depend on the circumstances, and here the circumstances are extraordinary, involving an infectious virus that can be transmitted quickly from person to person. So here, perhaps, a “reasonable time” may amount to days or a small number of weeks, not years as may be the case in other situations. Undue delays in responding to the coronavirus pandemic may place detained persons’ health and lives in imminent danger.
2020 WL 1987007, at *33. That is exactly the set of circumstances presented in this case, and it is thus proper to convene a three-judge panel now.
Defendants similarly suggest in a footnote that a temporary restraining order is not sufficient to serve as a predicate order under the PLRA. See ECF 115 at n.4. Defendants cite no authority for this proposition, which is inconsistent with the text of the PLRA, which requires only an “order” without qualification as to what type of order. At least one district court has concluded that a temporary restraining order is a sufficient order to satisfy 18 U.S.C. § 3626. Mays, 2020 WL 1987007, at *32-33 (“Because the TRO has not remedied the overall claimed constitutional violation—deficient conditions in the Jail during a pandemic—it satisfied the PLRA’s previous order requirement.”). This Court should reach the same conclusion based on the plain text of section 3626.
C. Only a Single Previous Order Is Required by the PLRA Defendants’ final argument—that multiple prior orders are required to convene a threejudge panel, ECF 115 at 9—has been explicitly rejected by the Supreme Court. In Brown, the Court recognized that 18 U.S.C. § 3626(a)(3)(A)(i) is “satisfied if the court has entered one order, and this single order has ‘failed to remedy’ the constitutional violation.” 563 U.S. at 514. While a court may enter multiple orders, and such orders will often be necessary when “a court attempts to remedy an entrenched constitutional violation through reform of a complex institution,” id. at 516, the entry of multiple orders is not a prerequisite for a prisoner release order. And where, as here, the plaintiffs do not challenge the complex overarching structure of a state prison system, but rather seek narrow, temporary relief, there is no justification for the Court to enter other forms of less intrusive relief that are guaranteed to fail.
CONCLUSION For the above-stated reasons, the Court should find that the requirements of 18 U.S.C. § 3626(a)(3)(A) are satisfied and convene a three-judge panel pursuant to 18 U.S.C. § 3626(a)(3)(B), (C) and 28 U.S.C. § 2284.
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Dated: May 18, 2020

Respectfully submitted,
/s/ Alexandria Twinem Alexandria Twinem, D.C. Bar No. 1644851 (Admitted Pro Hac Vice 4/6/2020) alexandria@civilrightscorps.org Katherine Hubbard, DC Bar No. 1500503 (Admitted Pro Hac Vice 4/6/2020) katherine@civilrightscorps.org Alec Karakatsanis alec@civilrightscorps.org (Pro Hac Vice Admission Pending) CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 2009 Tel: (202) 894-6126
R. Quinn Smith, Fla. Bar No. 59523  quinn.smith@gstllp.com  Katherine Alena Sanoja, Fla. Bar No. 99137  katherine.sanoja@gstllp.com  GST LLP  1111 Brickell Avenue, Suite 2715  Miami, Florida 33131  Tel: (305) 856-7723
Meena Jagannath, Fla. Bar No. 102684 meena@communityjusticeproject.com COMMUNITY JUSTICE PROJECT 3000 Biscayne Blvd. Ste 106 Miami, Florida 33137 Tel: (305) 907-7697
Maya Ragsdale, Fla. Bar No.: 1015395 maya@dreamdefenders.org DREAM DEFENDERS 6161 NW 9thAve. Miami, Florida 33127 Tel: 786-309-2217
Tiffany Yang, DC Bar. No. 230836 tyang@advancementproject.org (Admitted Pro Hac Vice 4/6/2020) Thomas B. Harvey, MO Bar. No. 61734 (Admitted Pro Hac Vice 4/6/2020) tharvey@advacementproject.org
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Case 1:20-cv-21457-KMW Document 125 Entered on FLSD Docket 05/18/2020 Page 11 of 12 ADVANCEMENT PROJECT 1220 L Street NW, Ste 850 Washington, DC 20005 Tel: (202) 728-9557 Lida Rodriguez-Taseff Florida Bar No. 39111 DLA Piper LLP (US) 200 South Biscayne Blvd., Ste 2500 Miami, Florida 33131 Tel.: (305) 423.8525 lida.rodriguez-taseff@dlapiper.com Secondary Email: dawn.perez@dlapiper.com Attorneys for Plaintiffs
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Case 1:20-cv-21457-KMW Document 125 Entered on FLSD Docket 05/18/2020 Page 12 of 12 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 18th day of May, 2020 a true and correct copy of the foregoing was electronically filed with the Clerk of the Court U.S. District Court, Southern District of Florida, using the CM/ECF system which will send notification of such filing to counsel of record.
/s/ Alexandria Twinem Alexandria Twinem
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 Case 1:20-cv-21457-KMW Document 136 Entered on FLSD Docket 05/22/2020 Page 1 of 11
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 20-cv-21457-KMW ANTHONY SWAIN, et al.,
Plaintiffs, v.
DANIEL JUNIOR, et al.,
Defendants. ______________________________/
DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION1 TO DEFENDANTS’ MOTION TO DISMISS
Plaintiffs, originally seven2 inmates currently in the custody of Defendants, have brought suit challenging the conditions of their confinement. Accordingly, their claims are subject to the administrative exhaustion requirements of the Prison Litigation Reform Act (“PLRA”). Plaintiffs, by their own admission, have failed to exhaust their administrative remedies through the process provided for by the Miami-Dade Corrections and Rehabilitation Department (“MDCR”).
Realizing this failure mandates dismissal of Count I of their Complaint, Plaintiffs make essentially two arguments in an effort to circumvent the PLRA’s exhaustion requirement: First, Plaintiffs ask this Court to find that administrative remedies were “unavailable” to them because they allegedly asked for, but did not receive, grievance forms in the days before they filed a federal class action. Second, Plaintiffs ask this Court to find that administrative remedies were “unavailable” to them because of a claimed “imminent danger exception” that is not recognized in the law (essentially, that the grievance process would take too long). See generally Plaintiffs’ Opposition to Defendants’ Motion to Dismiss Count I of the Complaint (“Response”) (DE 119).
1 Plaintiffs filed a separate Response in Opposition to Defendants’ Motion to Dismiss (DE 119), despite having already responded to Defendants’ arguments regarding exhaustion in their Combined Reply (DE 85) at 27-32. 2 Three of the seven named plaintiffs—Peter Bernal, Winfred Hill, and Bayardo Cruz—have since been released from MDCR custody. Accordingly, these Plaintiffs’ injunctive claims are moot, and they should be dismissed as plaintiffs. See Zatler v. Wainwright, 802 F.2d 397, 399 (11th Cir. 1986) (“In view of Zatler’s subsequent release, we find that his claims for declaratory and injunctive relief are now moot.”).

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Neither of these arguments is legally or factually sound. The inexorable result is this: Count I of the Complaint, for relief pursuant to 42 U.S.C. section 1983, must be dismissed for Plaintiffs’ failure to exhaust available administrative remedies prior to filing suit as required by the PLRA.
ARGUMENT I. The Record Shows MDCR’s Grievance Procedure Was Available as a Matter of Fact
Plaintiffs’ first argument, which claims the administrative grievance process was “unavailable” because they did not have access to grievance forms, is readily belied by the record. Plaintiffs’ allegations regarding availability, which lack any real specificity, run afoul of caselaw from this District and elsewhere concluding that generalized allegations that attempts to file grievances have been thwarted by jail staff are not sufficient to override exhaustion in the absence of supporting proof. These allegations are also conclusively refuted by declarations from six MDCR employees, several of whom are staffed to the Plaintiffs’ own housing units, which consistently reiterate that there has never been a shortage of grievance forms at Metro West such that inmates could not receive a grievance form upon request, as well as by MDCR administrative records which reflect that other inmates in the custody of MDCR filed grievances throughout this time—some inmates even filed more than one during this period—but not one of the seven Plaintiffs filed any grievance on any issue between January 1 and April 10, 2020.
Finally, even crediting Plaintiffs’ paltry factual allegations, they essentially concede they had no intention of exhausting prior to filing suit, as their own declarations admit Plaintiffs began to request grievance forms on March 31, mere days prior to filing a federal class action lawsuit on April 5. This last point is dispositive. Even accepting Plaintiffs’ allegations as true, they are tantamount to an admission that Plaintiffs never genuinely attempted to exhaust administrative remedies prior to suit, and their post hoc attempt to claim “unavailability” as a shield must be rejected.
A. Grievance Forms Have Always Been Available to All Inmates, Including Plaintiffs The evidence in the record shows that paper grievance forms have always been available
at Metro West and, as a result, have always been available to the Plaintiffs. The declaration of correctional counselor supervisor Terrence Mathews establishes that fact on its own. See Mathews Decl. ¶ 3 (DE 66-5). Plaintiffs cannot rebut this testimony, so they resort to attorney argument— not evidence—which (1) assumes scores of inmates must have wanted to file grievances in the handful of days before they filed the complaint; (2) assumes there was such a run on grievances
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that counselors were unable to keep blank forms in stock; (3) speculates Mathews is unaware of what is “actually” happening in the facility he supervises; and (4) obtusely misreads the phrase “running low” to mean “none.” See Resp. at 14-15 (claiming, without more, that Mathrews’s restocking of forms suggested supply had been “deplet[ed]”). Plaintiffs also offer no evidence to rebut Acting Commander Reynaldo Romero’s declaration and its exhibit, which together demonstrate (1) that not a single Plaintiff here filed a grievance between January 1 and April 10, 2020; and (2) that twenty-two different Metro West inmates filed twenty-nine grievances in the fourteen days before the complaint was filed—with some inmates even filing more than one grievance during that period, despite the purported unavailability of forms. See generally Romero Decl. (DE 66-4).
In addition to the sworn testimony of two supervisors, additional evidence in the record belies Plaintiffs’ general claims of unavailability. Specifically, four of the declarations provided with Defendants’ response to the motion for a preliminary injunction contain sworn testimony from MDCR officers with knowledge of Plaintiffs’ housing units. See Johnson Decl. (DE 65-5); Delancy Decl. (DE 65-6); Mayo Decl. (DE 65-7); Almonor Decl. (DE 65-9). These declarations speak with one voice in affirming the availability of paper grievance forms. Every single one of these declarations—submitted by Officer Beatrice Almonor, who is assigned to Anthony Swain’s unit (1D2); Officer Patricia Delancy, who is assigned to Winfred Hill and Peter Bernal’s unit (1D3); Officer Dasmine Mayo, who is assigned to Deondre Willis, Bayardo Cruz, Ronniel Flores, and Alen Blanco’s unit (2C2); and Corporal Bridgett Johnson, who oversees 1 Delta Wing— expressly and unequivocally states, under oath, that there has been no shortage of paper grievance forms in any of these units at any point in 2020. See Almonor Decl. ¶¶ 3, 12; Delancy Decl. ¶¶ 3, 6; Mayo Decl. ¶ 16; Johnson Decl. ¶ 19. Corporal Johnson further notes that any MDCR employee refusing to provide a grievance form to an inmate would be subject to discipline. Id.
Plaintiffs’ vague allegations regarding unavailability simply do not suffice under wellestablished case law in this Circuit. Courts in this Circuit have repeatedly held that a plaintiff alleging prison officials prevented him from exhausting “must have some supporting proof of his assertions,” as “bald assertions that attempts at exhaustion were thwarted by jail staff are insufficient.” Kingcade v. Parker, 949 F. Supp. 2d 1232, 1239 (S.D. Fla. 2013); see also Filmore v. Cooper, No. 18-0955, 2020 WL 1275385, at *6 (M.D. Fla. Mar. 17, 2020); Crutchley v. Chambers, No. 19-0043, 2020 WL 1301633, at *4 (M.D. Ga. Feb. 6, 2020) (“While Plaintiff
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claims ‘several different officers’ refused to provide him a grievance form, he does not give the officers’ names, the dates these incidents allegedly occurred, or any other specific facts supporting his claims.”), report and recommendation adopted, 2020 WL 1289171 (M.D. Ga. Mar. 18, 2020); Teran v. Johns, No. 17-0009, 2017 WL 4678220, at *4 (S.D. Ga. Oct. 17, 2017), report and recommendation adopted, 2017 WL 6028400 (S.D. Ga. Dec. 5, 2017); Purvis v. Dukes, No. 160015, 2017 WL 763931, at *3 (S.D. Ga. Jan. 19, 2017) (“Even if a hurdle to exhaustion existed as Purvis claimed in his Complaint, he has shown no evidence . . . that it rose to the height of unavailability that the Supreme Court contemplated in Ross.”), report and recommendation adopted, 2017 WL 758294 (S.D. Ga. Feb. 27, 2017).
Nor can Plaintiffs claim ignorance or confusion; even a cursory review of the case law reveals the level of factual detail necessary for a plaintiff to demonstrate that administrative exhaustion was truly unavailable. Compare Filmore, 2020 WL 1275385, at *6 (“Plaintiff does not provide any factual detail explaining the steps he took to obtain formal grievance forms, such as who he asked, how many times he asked, or whether he took other measures to obtain the forms.”), and Teran, 2017 WL 4678220, at *4 (“[H]e does not state when he requested grievance forms or identify the prison official who denied his request.”), with Minnis v. Jones, No. 17-20575, 2017 WL 9605073, at *6 (S.D. Fla. Nov. 17, 2017) (finding that plaintiff had supported his claim of unavailability by providing detailed allegations like describing an interaction with a named warden who tore up a grievance form in front of him, told him it was not possible to grieve certain types of officers, and threatened him with transfer to another named facility if he didn’t stop filing grievances), report and recommendation adopted, 2018 WL 3054803 (S.D. Fla. June 20, 2018).
And dismissals for failure to exhaust have been repeatedly affirmed by the Eleventh Circuit, even where the plaintiff alleged unavailability. See, e.g., Williams v. Barrow, 559 F. App’x 979, 987–88 (11th Cir. 2014) (affirming dismissal of complaint for failure to exhaust where allegation that plaintiff failed to exhaust because of “escalating retaliation” was not supported by evidence of actual threats of retaliation); Kozuh v. Nichols, 185 F. App’x 874, 878 (11th Cir. 2006) (affirming dismissal for failure to exhaust where plaintiff supplied no evidence to support allegations he was thwarted from bringing grievances or that grievance process was unavailable).
As in the plethora of cases cited above, Plaintiffs here adduce no evidence beyond their own claims to support vague, convenient, and self-serving allegations regarding unavailability, and their claims are simply incredible in light of record evidence regarding (1) the availability of
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forms testified to by six different MDCR employees; (2) the very fact that other inmates were able to file grievances throughout this time, some more than once; and (3) the implications of refusing to provide an inmate with a grievance form—namely, that such an action would subject an MDCR to discipline for such conduct.
Given the above, the factual record does not support crediting Plaintiffs’ factual allegations regarding the availability of paper forms in the days before they filed suit, and this Court should reject Plaintiffs’ attempt to circumvent the PLRA’s exhaustion requirement.
B. Plaintiffs’ Allegations Concede They Never Intended to Exhaust Pre-Suit Plaintiffs’ factual allegations regarding unavailability are sparse and vague, but they do
identify, with some specificity, the dates on which they allegedly requested paper grievance forms. Plaintiffs’ admission that they only began to attempt to grieve in the four days before filing this case on April 5—complete with a contemporaneously-filed motion for preliminary injunction and supplemented with a number of declarations from both inmates and physicians—on its face demonstrates that Plaintiffs never genuinely attempted to access the grievance process or attempt exhaustion. This point alone is sufficient to justify dismissal.
With their Response, Plaintiffs filed two declarations asserting various allegations in support of Plaintiffs’ claims of unavailability. See Supp. Blanco Decl. (DE 119-1); Supp. Cruz Decl. (DE 119-2). The problems with these declarations are myriad, but at least three are as follows: First, Cruz no longer has standing to pursue Count 1 of this Complaint in light of his release from custody. Second, Blanco’s vague allegations of unavailability fall far short of articulating the level of factual detail that would support crediting his claims of unavailability, not to mention that the few factual allegations in his declaration (such as naming officers from whom he purportedly requested grievance forms (see Supp. Blanco Decl. ¶ 6)) conflict with the testimony he gave during the Preliminary Injunction Hearing (see Transcript of Hearing Held 4-27-2020 (DE 134) at 28:1-5 (“PLAINTIFFS’ COUNSEL: Do you recall the names of the officer you asked for the grievance? BLANCO: Officer Mayo, the 7 to 3 shift; Officer Joseph, 7 to 3 shift; Officer Jackson 11 to 3 shift; Officer Simente the 11 to 3 shift; and Officer Wilkins the 3 to 11 shift.”). Third, and perhaps most saliently, the one factual allegation upon which Blanco has never wavered is that he did not request a grievance form for the first time until March 31. It also bears noting that the three other named Plaintiffs still in the custody of MDCR—Anthony Swain, Deondre
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Willis, and Ronniel Martinez-Flores—did not submit any declarations with Plaintiffs’ Response regarding exhaustion. Only Alen Blanco did. And his testimony does not help Plaintiffs.
The Governor of Florida declared a state of emergency on March 9. Gov’r of Fla., Exec. Order No. 20-52 (Mar. 9, 2020), available at https://www.flgov.com/wp-content/ uploads/orders/2020/EO_20-52.pdf. Days later, on March 12, MDCR took two major remedial steps: canceling all visitation and limiting inmate movement. Junior Decl. ¶¶ 44, 52 (DE 65-1). Over the next twenty-one days, despite being on notice regarding the existence and spread of COVID-19, Plaintiffs—seven different inmates, all familiar with the grievance process—failed to file a single grievance about what Plaintiffs have labeled an unprecedented global pandemic. They did have the time and foresight, however, to round up ten experts, complete seven lengthy declarations, and prepare a class action complaint and motion for preliminary injunction for filing in federal court. In other words, Plaintiffs accused Defendants of deliberate indifference on April 5 for an issue Plaintiffs themselves evidently discovered on March 31.
This revelation that Plaintiffs apparently planned to file grievances only days before they filed suit—by which time the forms were, according to Plaintiffs, suddenly unavailable throughout all of Metro West—betrays a critical truth: the Plaintiffs never intended to see the grievance process through to its conclusion. See Supp. Blanco Decl. ¶¶ 3, 6; see also Transcript of Hearing Held 4-27-2020 (DE 134) at 27:18-20 (“BLANCO: The first time I asked for a grievance was March 31st, which I believe was a Tuesday, around the beginning of the 3 o’clock shift.”).
In sum, Plaintiffs have only proffered factual detail from one still-incarcerated Plaintiff, Blanco, and his admission—that he began attempting to exhaust for the first time on March 31— reveals Plaintiffs had come to the foregone conclusion that the lawsuit would be filed regardless, in open defiance of the PLRA’s policy goals of “eliminat[ing] unwarranted federal-court interference with the administration of prisons” and “‘affor[ding] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.’” Woodford v. Ngo, 548 U.S. 81, 93 (2006) (quoting Porter v. Nussle, 534 U.S. 516, 525 (2002)); see also United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020) (recognizing that “strict compliance with [statutory exhaustion requirements] takes on added—and critical importance” when prison officials, who have a “shared desire for a safe and healthy prison environment,” engage in “extensive and professional efforts to curtail the virus’s spread,” as Defendants have
6

Case 1:20-cv-21457-KMW Document 136 Entered on FLSD Docket 05/22/2020 Page 7 of 11
here). Plaintiffs cannot hide behind a claim of purported unavailability where their own testimony reveals they never intended to genuinely pursue exhaustion pre-suit. II. Plaintiffs’ Legal Arguments Regarding Unavailability—Including Futility or an
Imminent Danger Exception—Are Not Valid Plaintiffs’ alternative argument that “the typical grievance procedure would take too long to result in any changes to Plaintiffs’ confinement that could protect them from imminent bodily injury and death,” Compl. ¶ 105, raises, in all pertinent respects, the same dispute the Supreme Court long ago resolved in Booth v. Churner, 532 U.S. 731 (2001). In that case, the Court held that a prison administrative procedure is “available” under the PLRA as long as it has “authority to take some action in response to [an inmate’s] complaint,” even if it cannot provide “the remedial action an inmate demands.” Id. at 736 (emphasis added). The Court reaffirmed Booth’s holding in Woodford: “a prisoner must now exhaust administrative remedies even where the relief sought . . . cannot be granted by the administrative process.” 548 U.S. at 85. And most recently, in Ross v. Blake, the Court explained that a grievance procedure is unavailable under a “dead-end exception” only if “officers [are] unable or consistently unwilling to provide any relief to aggrieved inmates.” 136 S. Ct. 1850, 1859 (2016) (emphasis added). In Booth, the relief that could not be granted by the process was money, but the plaintiff was required to exhaust anyway. 532 U.S. at 740–41. Booth and its progeny—both in the Supreme Court and in the Eleventh Circuit, see Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir. 2005)—foreclose any effort by Plaintiffs to override exhaustion here. They do not argue (or, in light of the evidence of MDCR’s remedial efforts, cannot genuinely argue) that MDCR could not provide them any of the relief they sought in their complaint, such as being given liquid hand soap, paper towels, wipes, or disinfecting supplies, through the administrative process.3 See Compl. 43-45. The facts on the ground defeat this argument, as MDCR began giving (or giving access to) nearly all of these same items to inmates long before the start of this lawsuit. See, e.g., Junior Decl. ¶¶ 29, 32; Johnson Decl. ¶¶ 11–12; Almonor Decl. ¶¶ 9, 13; Mayo Decl. ¶ 11; Delancy Decl. ¶¶ 4, 9, 11. Plaintiffs have to admit, then,
3 The ONE grievance Plaintiffs do provide, a form filled out by non-party Kellen Stuhlmiller (DE 119-3), on April 3, 2020 no less, when paper forms were allegedly rare and precious, requests the following:
“I hereby formally request my release from incarceration due to the lack of safety and precautions to prevent COVID19 from infecting me and other inmates.” It seems incredible, but apparently Defendants have to write it out once again: MDCR does not make release decisions. Stuhlmiller’s “grievance” to MDCR requesting release is not a meritorious request for relief.
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Case 1:20-cv-21457-KMW Document 136 Entered on FLSD Docket 05/22/2020 Page 8 of 11
that MDCR’s procedure would, as a matter of law, afford “the possibility of some relief.” Booth, 532 U.S. at 738.
That’s all the PLRA asks of an “available” administrative remedy, so Plaintiffs’ decision not to engage that remedy must lead to a finding that their failure to exhaust is not excused. See Nellson v. Barnhart, No. 20-0756, 2020 WL 1890670, at *4 (D. Colo. Apr. 16, 2020) (denying temporary restraining order to plaintiff who failed to exhaust administrative remedies but claimed concerns about COVID-19 excused that failure: “Plaintiff does not argue that he would be able to receive no relief whatsoever through the administrative grievance process but, rather, that the process would not be able to institute all the relief he requests immediately. But total and immediate relief is not the standard for exhaustion, ‘the possibility of some relief’ is.” (emphasis added) (quoting Ross, 136 S. Ct. at 1859)). The Supreme Court has “stress[ed]” that it “will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise.” Booth, 532 U.S. at 741 n.6. Congress has provided no such exception in the PLRA’s “uncompromising statutory text.” Ross, 136 S. Ct. at 1857. Futility is not a viable reason to bypass exhaustion, and Plaintiffs’ insistence otherwise does not alter that reality.
At bottom, the claim that an inmate need not exhaust his administrative remedies because the process would take too long to provide all the relief the inmate wants is a claim for a judicially created futility exception that is unrecognized by the Supreme Court and expressly prohibited by binding Eleventh Circuit law. It is not a tool in Plaintiffs’ arsenal.
Finally, Plaintiffs cannot genuinely distinguish the painfully applicable Fifth Circuit decision in Valentine v. Collier, — F.3d —, 2020 WL 1934431 (5th Cir. Apr. 22, 2020), which soundly rejected nearly identical arguments regarding exhaustion and unavailability. In Valentine, two days after the district court granted the plaintiffs’ (inmates in a Texas jail) motion for preliminary injunction against the Texas Department of Criminal Justice (TDCJ) and two of its officials, finding it likely that the plaintiffs could prove an Eighth Amendment violation, the Fifth Circuit stayed the injunction pending appeal, concluding, inter alia, that the defendants were likely to show on appeal that the plaintiffs—who had not submitted any grievances prior to filing suit— failed to exhaust under the PLRA. Id. at *5–7. Valentine provides this Court with an uncomplicated roadmap to dismissal that dismantles Plaintiffs’ arguments here along the way.
The Fifth Circuit rejected the argument that a grievance process that would take too long to provide relief to the plaintiffs given the circumstances posed by COVID-19 is “unavailable.” It
8

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explained that “reading a ‘special circumstances’ exception in the PLRA” because of concerns about the spread of COVID-19 “would undo the PLRA and ‘resurrect’ its predecessor.’” Id. at *6 (quoting Ross, 136 S. Ct. at 1858); see also Nellson, 2020 WL 1890670, at *5 (“[T]he Court does not overlook the risks of COVID-19 at [the facility] or in the prison system generally. But the Court may not alter the mandatory requirements of the PLRA for COVID-19 or any other special circumstance.”). Make no mistake: Plaintiffs here are making the same argument. See Resp. at 6 (“Defendants’ primary argument (that the length of time required to access relief is irrelevant when determining the remedy’s availability) is both callous and nonsensical.”). As in Valentine, this Court should likewise reject Plaintiffs’ argument.
Valentine also soundly rejected the argument that there is some sort of “imminent danger” exception to exhaustion. The Fifth Circuit neutralized Plaintiffs’ star case on this point, Fletcher v. Menard Correctional Center, 623 F.3d 1171 (7th Cir. 2010), a case that, since Ross, has never been cited outside the Seventh Circuit for the imminent-danger exception it created—that is, except in the district court order stayed by the Fifth Circuit in Valentine. The Fifth Circuit wisely declined to engage with Fletcher’s catastrophic hypothetical about an inmate who was going to die the next day and a procedure that prohibited responding to a grievance until two weeks after it was filed. Valentine, 2020 WL 1934431, at *7. The hypothetical was irrelevant—as it is irrelevant here—because TDCJ, like MDCR, “faces no legal bar to offering timely relief” and “is empowered to act on a grievance any time up to—not after, as in Fletcher—the statutory limit.” Id.4
At least one Eleventh Circuit panel has expressly held that there is no imminent-danger exception to exhaustion. Plaintiffs disregard Bracero v. Secretary, Florida Department of Corrections, 748 F. App’x 200 (11th Cir. 2018), cert. denied sub nom. Bracero v. Inch, 139 S. Ct. 1631 (2019), as a “single, unpublished decision that fails to support [Defendants’] position.” Resp. at 7. But this is an anemic effort to distract from Bracero’s flat rejection of the same imminentdanger exception Plaintiffs want the Court to create here. The plaintiff in Bracero did not comply with the offered administrative grievance procedure. From that point, the plaintiff advanced the exact argument offered here—that his failure to exhaust should be excused because his life and
4 Plaintiffs’ speculation that MDCR would take the entire permissible time to address a grievance and, if necessary, a grievance appeal, is just that: speculation. “Statements by counsel in briefs are not evidence.” Skyline Corp. v. NLRB, 613 F.2d 1328, 1337 (5th Cir. 1980). However, even if this were the case, there is no imminent danger exception recognized in the law, and Plaintiffs’ invitation to this Court to create one is a call to error and should be rejected.
9

Case 1:20-cv-21457-KMW Document 136 Entered on FLSD Docket 05/22/2020 Page 10 of 11
safety were in danger. In particular, he claimed that the decision below was “not legally reasonable regarding the issue of exhaustion of remedies” for several reasons, including “lack of remedy or relief in the face of the danger appellant still face[s].” Br. of Appellant 16, Bracero v. Sec’y, Fla. Dep’t of Corr., No. 17-14278 (11th Cir. Mar. 12, 2018); see also id. at 1, 5 (“Complaint should not be dismissed when inmate allege danger.” (sic.)). The Eleventh Circuit acknowledged that the argument was made and rejected it:
Bracero’s other efforts to overcome the exhaustion requirement are unavailing. He asserts that his complaint should not have been dismissed before granting injunctive relief because he alleged imminent danger, but exhaustion is a prerequisite for any prisoner suit. Bracero, 748 F. App’x at 203. Put simply, the court concluded that the plaintiff’s allegation that he faced imminent danger was an unavailing effort to overcome the exhaustion requirement. Here, Plaintiffs offer no principled reason to conclude differently. Bracero—a 2018 unanimous opinion by three Eleventh Circuit Judges (W. Pryor, Rosenbaum, Anderson)—is a far more suitable vehicle than Fletcher for indicating how the Eleventh Circuit might treat the question of an imminent-danger exception in a future precedential decision. So too is Pearson v. Taylor, 665 F. App’x 858 (11th Cir. 2016), where another panel of three Eleventh Circuit Judges (Jordan, Rosenbaum, J. Pryor) unanimously concluded that the plaintiff’s unavailability arguments “do not appear to fall within any of [Ross’s] three ‘exceptions’ exhaustion.” Id. at 868. Pearson, like Bracero, signals the view that the three exceptions in Ross are an exhaustive list. That spells doom for Plaintiffs, of course, because “imminent danger” is not on Ross’s list.
CONCLUSION Under the PLRA, exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the procedure. Booth, 532 U.S. at 736; Johnson, 418 F.3d at 1156. The remedies a plaintiff must exhaust before filing suit in federal court need not be “speedy,” or “effective”—they must only be available. Nussle, 534 U.S. at 524. Plaintiffs here have failed to establish either a factual basis or a legal basis for finding that the administrative process was not available to them prior to filing this action. Their admitted failure to exhaust prior to suit is fatal to Count I. Accordingly, Count I of the Complaint must be dismissed.
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Case 1:20-cv-21457-KMW Document 136 Entered on FLSD Docket 05/22/2020 Page 11 of 11

Dated: May 22, 2020

Respectfully submitted,
ABIGAIL PRICE-WILLIAMS Miami-Dade County Attorney Stephen P. Clark Center 111 N.W. 1st Street, Suite 2810 Miami, Florida 33128
By: s/ Anita Viciana Anita Viciana (Fla. Bar No. 115838) anita@miamidade.gov Zach Vosseler (Fla. Bar No. 1008856) zach@miamidade.gov Bernard Pastor (Fla. Bar No 0046582) pastor@miamidade.gov
Counsel for Defendants

CERTIFICATE OF SERVICE I hereby certify that on May 22, 2020, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record via electronic mail, to the email addresses indicated on CM/ECF.
s/ Anita Viciana Assistant County Attorney

11

 
 No. 20-11622
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ANTHONY SWAIN, et al.,
Plaintiffs-Appellees,
v.
DANIEL JUNIOR, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department, and
MIAMI-DADE COUNTY, FLORIDA,
Defendants-Appellants.
On Appeal from the United States District Court for the Southern District of Florida
Civil Action No. 1:20-cv-21457-KMW The Honorable Kathleen M. Williams, United States District Judge
BRIEF OF CORRECTIONS EXPERTS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMANCE
Danielle C. Jefferis* STUDENT LAW OFFICE | CIVIL RIGHTS CLINIC University of Denver College of Law 2255 East Evans Avenue, Suite 335 Denver, CO 80208 Tel: 303.871.6155 | Email: djefferis@law.du.edu *Counsel of Record
Counsel for Amici Curiae
May 28, 2020

No. 20-11622
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ANTHONY SWAIN, et al.,
Plaintiffs-Appellees,
v.
DANIEL JUNIOR, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department, and
MIAMI-DADE COUNTY, FLORIDA,
Defendants-Appellants.
On Appeal from the United States District Court for the Southern District of Florida
Civil Action No. 1:20-cv-21457-KMW The Honorable Kathleen M. Williams, United States District Judge
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit Rule 26.1-1, amici Martin F. Horn, Steve J. Martin, Richard Morgan, Dan Pacholke, Emmitt Sparkman, Phil Stanley, and Eldon Vail certify that the following persons and entities may have an interest in the outcome of this case:
Advancement Project, Counsel for Plaintiffs-Appellees
Barnet, Emily, Counsel for Plaintiffs-Appellees
Bernal, Peter, Plaintiff
Blanco, Alen, Plaintiff-Appellee
i

Buergel, Susanna M., Counsel for Amici Public Health and Human Rights Experts Civil Rights Corps, Counsel for Plaintiffs-Appellees Cohen, Robert L., Amicus Curiae Community Justice Project, Counsel for Plaintiffs-Appellees Cruz, Bayardo, Plaintiff-Appellee DLA Piper LLP (US), Counsel for Plaintiffs-Appellees Dream Defenders, Counsel for Plaintiffs-Appellees Giller, David, Counsel for Amici Public Health and Human Rights Experts Godfrey, Nicole B., Counsel for Amici Corrections Experts Goldenson, Joseph, Amicus Curiae Greenberg, Ezra S., Counsel for Defendants-Appellants GST LLP, Counsel for Plaintiffs-Appellees Harvey, Thomas B., Counsel for Plaintiffs-Appellees Hill, Winfred, Plaintiff Hochstadt, Jennifer L., Counsel for Defendants-Appellants Horn, Martin F., Amicus Curiae Hubbard, Katherine, Counsel for Plaintiffs-Appellees Jagannath, Meena, Counsel for Plaintiffs-Appellees Jefferis, Danielle C., Counsel for Amici Corrections Experts Johnson, Darren W., Counsel for Amici Public Health and Human Rights Experts
ii

Jones, Jenipher, Counsel for Amici Corrections Experts Junior, Daniel, Defendant-Appellant Karakatsanis, Alec, Counsel for Plaintiffs-Appellees Kimball-Stanley, David C., Counsel for Amici Public Health and Human Rights Experts Martin, Steve J., Amicus Curiae Martinez-Flores, Ronniel, Plaintiff-Appellee Miami-Dade County, Defendant-Appellant Miami-Dade County Attorney’s Office, Counsel for Defendants-Appellants Morgan, Richard, Amicus Curiae Pacholke, Dan, Amicus Curiae Pastor, Bernard, Counsel for Defendants-Appellants Paul, Weiss, Rifkind, Wharton & Garrison LLP, Counsel for Amici Public Health and Human Rights Experts Price-Williams, Abigail, Miami-Dade County Attorney Ragsdale, Maya, Counsel for Plaintiffs-Appellees Rodriguez-Taseff, Lida, Counsel for Plaintiffs-Appellees Rosenthal, Oren, Counsel for Defendants-Appellants Rovner, Laura, Counsel for Amici Corrections Experts Sanoja, Katherine Alena, Counsel for Plaintiffs-Appellees Simson, Emma, Counsel for Plaintiffs-Appellees
iii

Smith, R. Quinn, Counsel for Plaintiffs-Appellees Sparkman, Emmitt, Amicus Curiae Stanley, Phil, Amicus Curiae Swain, Anthony, Plaintiff-Appellee Torres, Hon. Edwin G., United States Magistrate Judge Twinem, Alexandria, Counsel for Plaintiffs-Appellees University of Denver Sturm College of Law – Student Law Office | Civil Rights Clinic, Counsel for Amici Corrections Experts Vail, Eldon, Amicus Curiae Viciana, Ana Angelica, Counsel for Defendants-Appellants Volchok, Daniel S., Counsel for Plaintiffs-Appellees Vosseler, Zach, Counsel for Defendants-Appellants Williams, Hon. Kathleen M., United States District Judge Williams, Brie, Amicus Curiae Willis, Deondre, Plaintiff-Appellee Wilmer Cutler Pickering Hale and Dorr, LLP, Counsel for Plaintiffs-Appellees Yang, Tiffany, Counsel for Plaintiffs-Appellees Zaron, Erica, Counsel for Defendants-Appellants

Amici Corrections Experts are individual persons.

May 28, 2020

s/ Danielle C. Jefferis Danielle C. Jefferis

iv

TABLE OF CONTENTS TABLE OF AUTHORITIES................................................................................ vi STATEMENT OF IDENTIFICATION ................................................................1 RULE 29(a)(4)(E) STATEMENT ..........................................................................3 STATEMENT OF THE ISSUES ………………………………………………..4 SUMMARY OF ARGUMENT…………………………………………………...4 ARGUMENT ...........................................................................................................6 1. COVID-19 Presents a Special and Exceptional Threat to Prisons and Jails, and
Puts Incarcerated People, Staff, and the Public at Serious Risk. ........................6 2. The Precautionary Measures the District Court Ordered Are Both Necessary to
Protect Incarcerated People, Prison Staff, and the Public, and Feasible from a Correctional Point of View. ..............................................................................11 CONCLUSION ......................................................................................................15 CERTIFICATE OF SERVICE ............................................................................17
v

TABLE OF AUTHORITIES
CASES Banks v. Booth, Doc. 23, No. 1:20-cv-00849-CKK (D.D.C., Apr. 2, 2020)...........10
Valentine v. Collier, 590 U.S. ___ (2020) (Sotomayor, J. respecting denial of application to vacate stay)....................................................................................16
Wilson v. Williams, No. 4:20-cv-00794, 2020 WL 1940882, at *2 (N.D. Ohio, Apr. 22, 2020) ..........................................................................................8, 9
OTHER AUTHORITIES A Message from CLEAT Executive Director: COVID-19, CLEAT (Mar. 13,
2020), https://bit.ly/2Z6Xu18 ..............................................................................10
Alice Speri, Mass Incarceration Poses a Uniquely American Risk in the Coronavirus Pandemic, The Intercept (May 6, 2020), https://bit.ly/2T49Ymw ..........................................................................................7
Cheryl Corley, The COVID-19 Struggle In Chicago’s Cook County Jail, NPR (Apr. 13. 2020), https://n.pr/3dNlYR0 ..........................................................8
Christina Carrega, Nearly 100 prison inmates in NY to produce 100K gallons of hand sanitizer weekly, ABC News (Mar. 10, 2020), https://abcn.ws/36um0ec ......................................................................................13
Coronavirus Infection Rates as of May 13, 2020, The Legal Aid Society (last accessed: May 14, 2020), https://bit.ly/2AmHZrt .................................................7
COVID-19 Frequently Asked Questions, Dep’t of Corrections, Wash. State, https://bit.ly/2TAoVga (last accessed: May 25, 2020) ........................................13
Deanna Paul & Ben Chapman, Rikers Island Jail Guards Are Dying in One of the Worst Coronavirus Outbreaks, Wall St. J. (Apr. 22, 2019), https://on.wsj.com/2AvVsgT .................................................................................8
Ed Pilkington, Mass incarceration could add 100,000 deaths to US coronavirus toll, study finds, The Guardian (Apr. 22, 2020), https://bit.ly/3fNXvgr ...........................................................................................10
vi

Elise Schmelzer, 238 inmates test positive for coronavirus at Sterling prison, the largest known outbreak in Colorado, The Denver Post (Apr. 28, 2020), https://dpo.st/2yNer69 ............................................................................................9
Emma Nicolas, A Michigan prison tested all of its inmates for COVID-19. More than half have the virus., WZZM13 (Apr. 27, 2020), https://bit.ly/3686Nzu ............................................................................................8
Interim Guidelines, Center for Disease Control, available at https://bit.ly/3fRYwUA ...........................................................................11, 12, 14
Jennifer Kendall, CLEAT threatens legal action if officers’ families not granted benefits for COVID-19 deaths, FOX 7 (Apr. 30, 2020), https://bit.ly/2WYulCz .........................................................................................10
John Herrick, Update: The latest on COVID-19 in Colorado, The Colorado Independent (May 13, 2020), https://bit.ly/2Avb9F3 ............................................9
The Marshall Project, A State-by-State Look at Coronavirus in Prisons (last updated: May 8, 2020), https://bit.ly/2WvQARd ..................................................6
vii

STATEMENT OF IDENTIFICATION Amici curiae are corrections experts with extensive experience overseeing and managing prisons and jails, including facilities facing infectious disease outbreaks like the one at issue in this case. Amici submit that Coronavirus Disease 2019 (COVID-19)—the illness caused by the novel coronavirus—presents a special and exceptional threat to prisons and jails that must be managed effectively and urgently to prevent widespread illness and deaths. Tens of thousands of incarcerated people and prison and jail employees have already contracted the virus; many hundreds have died. These numbers are growing every day. Amici are: Martin F. Horn served as Secretary of Corrections of Pennsylvania from 1995 to 2000. He also served as Commissioner of the New York City Departments of Correction and Probation for seven years. Additionally, Mr. Horn has served as Executive Director of the New York State Sentencing Commission. Steve J. Martin is the former General Counsel/Chief of Staff of the Texas prison system and has served in gubernatorial appointments in Texas on both a sentencing commission and a council for incarcerated people with mental impairments. He coauthored Texas Prisons, The Walls Came Tumbling Down, and has written numerous articles on criminal law issues. Mr. Martin is currently serving as the Federal Court Monitor in Nunez v. New York City Department of Corrections,
1

monitoring a Consent Judgment designed to remedy alleged unconstitutional practice in the Department’s facilities.
Richard Morgan was appointed Secretary of the Washington State Department of Corrections in 2016. He also was appointed to Washington State’s Parole Board and elected to the Walla Walla City Council, and he has served on the Board for the Washington State Coalition to Abolish the Death Penalty since 2012. Throughout the course of his career, Mr. Morgan was the Superintendent (Warden) of three prisons, including one facility with an inpatient hospital and two institutions with clinics. In 2002, as the Superintendent of the Washington State Penitentiary, Mr. Morgan managed an infectious disease outbreak in the prison, effectively containing the virus and mitigating the harm to incarcerated people and prison staff.
Dan Pacholke is the former Secretary for the Washington State Department of Corrections. He started his thirty-three-year career as a correctional officer, working his way to the senior-most position for the department. As a Superintendent (Warden), Mr. Pacholke managed flu outbreaks, and as Chief of Emergency Response and later Deputy Director and Director of Prisons, he was responsible for ensuring the prisons had an up-to-date epidemic response plan.
Emmitt Sparkman is the former Deputy Commissioner of Institutions for the Mississippi Department of Corrections. His adult and juvenile corrections career spans over forty-three years. He has held line and management positions in Texas,
2

Kentucky, and Mississippi. While serving as the Mississippi Department of Corrections Deputy Commissioner, he was instrumental in implementing reforms to reduce the use of restrictive housing.
Phil Stanley is the former Commissioner of the New Hampshire Department of Corrections, reporting directly to the Governor. He has served as a Regional Administrator for the Washington State Department of Corrections. He is currently a consultant for jail operations.
Eldon Vail served as Secretary of the Washington Department of Corrections from 2007 until 2011. As Director, he successfully reduced violence in the state prison system and implemented a wide array of evidence-based programs, including an intensive treatment program for people in prison with a mental illness and a stepdown program for people held for long terms in solitary confinement.
Plaintiffs-Appellees consent to this brief’s filing. Defendants-Appellants do not consent to its filing. Accordingly, pursuant to Federal Rule of Appellate Procedure 29(a)(2) and (3), amici have concurrently filed a motion seeking this Court’s leave to file this brief.
RULE 29(a)(4)(E) STATEMENT Amici certify that no party’s counsel authored this brief in whole or in part, and no person or entity other than amici and their counsel made a monetary contribution to this brief’s preparation and submission.
3

STATEMENT OF THE ISSUES Effective management of the COVID-19 outbreak in prisons and jails requires a multi-faceted, aggressive approach. Indeed, urgent and enforceable implementation of the measures the district court ordered of Defendants-Appellants at the Metro West Detention Center is both necessary and feasible from a correctional point of view to protect incarcerated people, jail staff, and the public from contracting and transmitting COVID-19 at this stage of the pandemic. Failing to ensure compliance with the district court’s order, which is based predominately on Center for Disease Control guidance, at this stage of the pandemic risks substantial and irreparable harm of serious illness and death to all people living and working in the Jail, as well as the public. Drawing upon their expertise in the corrections field, amici provide this Court unique information as to why this is so.
SUMMARY OF ARGUMENT COVID-19, the illness caused by the novel coronavirus, presents a special and exceptional threat to prisons and jails. Prisons and jails are incubators for infectious diseases. Close living quarters and often unsanitary conditions enable the rapid spread of germs. For many prisons and jails, including the one at issue in this case, social distancing at current population levels makes adequate social distancing impossible, which increases the risk and rate of exposure and infection.
4

Many prisons and jails are already sites of the country’s highest COVID-19 infection rates. More than twenty thousand incarcerated people across the country have reportedly tested positive for the illness. Hundreds have died. Thousands of prison and jail employees have contracted the virus; many have also died. And as prison and jail employees go to and from work each day—i.e., places where the infection rate dwarfs the infection rate among the general public—they risk carrying the virus with them and infecting their spouses, parents, children, and neighbors.
Adequate protective and preventive measures are critical to slowing the spread of COVID-19 infections and deaths. Prisons and jails must follow guidance from agencies like the Center for Disease Control (CDC) to ensure cleanliness and sanitation, social distancing measures and restrictions of movement, and adequate education among prison populations about the virus and its symptoms and proper protection measures. The measures the district court ordered Defendants-Appellants to implement at the Metro West Detention Center (MWDC) comply with those guidelines, and are both necessary and feasible from a correctional point of view to protect the Jail’s incarcerated people, staff, and the public from contracting and transmitting COVID-19. Indeed, during emergency times like the present, adopting each of the practices and procedures the district court ordered comports with sound correctional practice to mitigate the harm of the pandemic at its current stage. Failing
5

to do so risks substantial and irreparable harm of serious illness and death to all people living and working in the Jail as well as the public.
ARGUMENT 1. COVID-19 Presents a Special and Exceptional Threat to Prisons and
Jails, and Puts Incarcerated People, Staff, and the Public at Serious Risk. Prisons and jails are highly susceptible to infectious disease outbreaks, and even more so during this pandemic as COVID-19 proves to be a highly infectious, rapidly spreading illness for which there is not yet an effective treatment or cure. Social distancing and isolation are among the most effective measures to slow the virus’s spread. Incarcerated people, however, live together in close quarters, and conditions in prisons and jails are often unsanitary. At the same time, large numbers of prison employees enter and leave the facilities each day with the potential to bring or take the virus with them. Indeed, prisons and jails have been called the ticking time bomb of this pandemic. Once one person falls ill, transmission to many other people is inevitable. In many communities, the bomb may have already detonated. By early May, more than twenty thousand incarcerated people across the country had reportedly tested positive for COVID-19. See, e.g., The Marshall Project, A State-by-State Look at Coronavirus in Prisons (last updated: May 8, 2020), https://bit.ly/2WvQARd. Hundreds have died. Id. Eight of the ten largest COVID-19 outbreaks in the United States are in prisons and jails. See Alice Speri, Mass Incarceration Poses a Uniquely
6

American Risk in the Coronavirus Pandemic, The Intercept (May 6, 2020), https://bit.ly/2T49Ymw. As is the case in the general public, the availability of tests for COVID-19 in prisons and jails has varied from jurisdiction to jurisdiction but many fear the actual rate of infection among incarcerated people is much higher than the numbers systems have reported. Id.
Effective management of this infectious disease outbreak requires a multifaceted, aggressive approach. Ad hoc and inconsistent practices that do not account for all CDC guidelines are insufficient. And prison and jail systems that have failed to take adequate precautions to prevent the rapid spread of COVID-19 are bearing the grave consequences of their inaction. Rikers Island in New York City is especially hard-hit, with a COVID-19 infection rate exponentially higher among incarcerated people and jail staff than the national infection-rate average. The rate is of infection among the city’s incarcerated population is nearly four times higher than the rate of infection for New York City—one of the nation’s hardest-hit areas—as a whole. See Coronavirus Infection Rates as of May 13, 2020, The Legal Aid Society (last accessed: May 14, 2020), https://bit.ly/2AmHZrt. More than 1,000 New York City corrections employees have tested positive for the illness; at least eight have died. See, e.g., id.; Deanna Paul & Ben Chapman, Rikers Island Jail Guards Are Dying in One of the Worst Coronavirus Outbreaks, Wall St. J. (Apr. 22, 2019), https://on.wsj.com/2AvVsgT. The rate of COVID-19 infection among Rikers staff
7

is on par with the most infected American workplaces. See Paul & Chapman, supra at 7.
The virus has not spared ill-prepared prisons and jails outside of New York. The Cook County Jail is experiencing a disaster similar to the crisis at Rikers. In mid-April, the jail’s infection rate was reportedly higher than anywhere in the country. See Cheryl Corley, The COVID-19 Struggle In Chicago’s Cook County Jail, NPR (Apr. 13. 2020), https://n.pr/3dNlYR0. In Michigan, more than half of the people incarcerated in one of the state’s prison—nearly 800 people—have tested positive for COVID-19. See Emma Nicolas, A Michigan prison tested all of its inmates for COVID-19. More than half have the virus., WZZM13 (Apr. 27, 2020), https://bit.ly/3686Nzu. In late April, the Federal Bureau of Prisons (BOP) Federal Correctional Institution in Elkton, Ohio, had fifty-nine confirmed cases of COVID19 among prisoners and forty-six cases among prion employees. See Wilson v. Williams, No. 4:20-cv-00794, 2020 WL 1940882, at *2 (N.D. Ohio, Apr. 22, 2020) (appeal pending). In a federal lawsuit challenging the BOP’s response to the pandemic, the district court noted “it is unlikely that these figures represent the actual number of cases at the institution, given the paltry number of tests the federal government has made available for the testing of Elkton’s inmates.” Id. Among the Ohio state prisons, the Court noted in April that nearly 2,000 prisoners had tested positive for COVID-19. Id. In Colorado, hundreds of men at the state’s largest prison
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have tested positive for the virus. See, e.g., John Herrick, Update: The latest on COVID-19 in Colorado, The Colorado Independent (May 13, 2020), https://bit.ly/2Avb9F3; Elise Schmelzer, 238 inmates test positive for coronavirus at Sterling prison, the largest known outbreak in Colorado, The Denver Post (Apr. 28, 2020), https://dpo.st/2yNer69. At least two have died. See Herrick, supra at 8.
COVID-19 has also spread rapidly at MWDC, as the evolving record in this case demonstrates. On the day Plaintiffs-Appellees filed this case, there were no confirmed cases of COVID-19 at the Jail. Just three weeks later, 163 incarcerated people had tested positive and over 500 were quarantined. See ECF No. 100 at 4; ECF No. 99. At least one man, Charles Hobbs, has died after exhibiting COVID-19 symptoms while detained pretrial at the Jail. See ECF No. 109.
When prisons and jails do not take necessary and adequate measures to contain the outbreak, COVID-19 threatens not only incarcerated people and prison staff but also members of the public. Jails are at an exceptionally high risk for internal and community COVID-19 transmission if they do not take adequate precautionary measures due to the constantly in-flux nature of their populations, with releases and admissions of detainees every day. A recent epidemiological study suggests that nearly 100,000 more people may die as a result of contracting the virus due to the nation’s jail population alone, raising the U.S. death toll to twice the figures of the federal government’s modeling. See Ed Pilkington, Mass
9

incarceration could add 100,000 deaths to US coronavirus toll, study finds, The Guardian (Apr. 22, 2020), https://bit.ly/3fNXvgr.
The extreme risk of COVID-19 has not gone unnoticed among prison and jail employees. In Texas, the State’s law enforcement union has publicly urged officers across the state to comply with CDC guidelines, including by “rigorously” following all personal hygiene recommendations. See A Message from CLEAT Executive Director: COVID-19, CLEAT (Mar. 13, 2020), https://bit.ly/2Z6Xu18. And the union has begged the Texas governor to add COVID-19 to the list of presumptive illnesses for officers and threatened to sue on behalf of any family of an officer who dies as a result of contracting the virus. See Jennifer Kendall, CLEAT threatens legal action if officers’ families not granted benefits for COVID-19 deaths, FOX 7 (Apr. 30, 2020), https://bit.ly/2WYulCz. Still, at least five correctional officers have already died. Id. In the District of Columbia, the Fraternal Order of Police for the District of Columbia Department of Corrections Labor Committee—the labor union representing approximately 900 employees who work at the D.C. Jail—filed an amicus brief in support of the plaintiffs’ motion for a temporary restraining order regarding precautionary measures to mitigate the risk of COVID-19 infection and transmission. See Banks v. Booth, Doc. 23, No. 1:20-cv-00849-CKK (D.D.C., Apr. 2, 2020). And in Chicago, lawyers for employees of the Cook County Jail sent a
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letter to Sheriff Dart and the President of the Cook County Board of Commissioners urging the executives to take greater steps to ensure the safety of all lives in the Jail.
The numbers of confirmed cases of COVID-19 among incarcerate people and prison and jail employees increase every day. The deaths do, too. Prison systems and administrators must implement certain measures to account for this public health emergency to minimize harm and protect lives. And they must adhere to these measures for at least the duration of this stage of the pandemic.
2. The Precautionary Measures the District Court Ordered Are Both Necessary to Protect Incarcerated People, Prison Staff, and the Public, and Feasible from a Correctional Point of View. During times of emergency like the present, it is imperative for prison and jail
administrators to at minimum defer to the recommendations of agencies like the CDC for mitigating and managing the harm COVID-19 poses to incarcerated people, prison staff, and the public. Critically, the CDC does not recommend a one-size-fitsall approach. The agency’s Interim Guidelines on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities state that all guidelines “may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions. See Interim Guidelines, Center for Disease Control, available at https://bit.ly/3fRYwUA. Drawing from these CDC guidelines, the district court ordered DefendantsAppellants to implement measures regarding cleanliness, personal protective
11

equipment (face masks), COVID-19 testing, social distancing, and prisoner education at the Jail to mitigate the spread of COVID-19 among its population—all of which are necessary at this stage of the pandemic to protect the Jail’s incarcerated people, its staff, and the public, and feasible from a correctional point of view. Urgent and enforceable adoption of each of the practices and procedures the district court ordered comports with sound correctional practice to mitigate the harm of the pandemic. Failing to do so risks substantial and irreparable harm of serious illness and death to all people living and working in the Jail, as well as the public.
Adequate cleanliness and sanitation measures in prisons and jails are critical to slowing COVID-19’s infection rate. The CDC’s Interim Guidelines, for example, provide that facilities must ensure incarcerated people are able to frequently wash their hands and disinfect surfaces. See id. The CDC requires prisons to ensure sufficient stock of hygiene and cleaning supplies—including alcohol-based sanitizer containing at least sixty percent alcohol, liquid soap and hand-drying supplies, tissues, and disinfectants—are on hand and available. Id. The availability of hand sanitizer is especially important in areas of prisons where handwashing is not possible, including in certain areas of housing units, the cafeteria, the medical unit, the commissary and pill lines, and the laundry unit.
While the CDC retains the possibility of an exception to the hand-sanitizer requirement “based on [a prison’s] security restrictions,” prisons and jails can and
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should suspend any security-based restriction on alcohol-sanitizer during this pandemic. In fact, incarcerated people in other states are manufacturing and/or packaging large volumes of hand sanitizer for the general public’s use. See, e.g., Christina Carrega, Nearly 100 prison inmates in NY to produce 100K gallons of hand sanitizer weekly, ABC News (Mar. 10, 2020), https://abcn.ws/36um0ec. Other prison systems, including Washington, have suspended rules prohibiting alcoholbased sanitizer for the duration of the COVID-19 pandemic. See, e.g., COVID-19 Frequently Asked Questions, Dep’t of Corrections, Wash. State, https://bit.ly/2TAoVga (last accessed: May 25, 2020). Indeed, in addition to practicing social distancing, the use of hand sanitizer appears to be a cornerstone of addressing the spread of the virus. While there is some risk associated with the misuse of alcohol-based sanitizer, due usually to the fact that it is flammable, that risk pales in comparison to the benefit of hand sanitizer to the greater incarcerated population and prison staff. Prison and jail administrators may ameliorate any specific risk of this nature by providing, for example, alcohol-based sanitizing wipes or spray in sufficient quantity rather than liquid sanitizer.
Prisons and jails must also provide incarcerated people with sufficient quantities of hand soap, preferably in liquid form, and paper towels or access to hand-drying machines. Frequent, aggressive hand washing is another pillar to fighting COVID-19. One small bar of hand soap per week is grossly inadequate to
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foster the hand washing that must occur to mitigate the spread of the illness. See generally CDC Interim Guidelines, supra at 10 (prisons must provide soap “sufficient to allow frequent hand washing”). Incarcerated people must have enough supplies to wash and dry their hands frequently and for the duration the CDC recommends.
And regarding cleaning supplies (gloves and cleaning towels or rags) and disinfectants, prisons and jails must implement intensified cleaning and disinfecting of all surfaces in housing and common-use areas and ensure incarcerated people have access to these supplies to regularly clean their living areas. Facilities should ensure frequent, regular cleaning and implement procedures to record when each cleaning occurs to ensure accountability. Frequent cleaning of common surfaces in the housing units, bathrooms, and dining hall is necessary, given what is known about the spread of COVID-19, and is feasible from a correctional point of view, where incarcerated people often already work as janitors or porters in these areas.
Just as minimizing movement is key to mitigating the spread of COVID-19 among the general public, ensuring social distancing among incarcerated people is a cornerstone of combatting the transmission of this virus. Where social distancing is not possible, the risk of infection cannot be fully abated. Consistent use of clean facemasks is also necessary at this stage of the pandemic, and especially until widespread COVID-19 testing is available. Prison and jail administrators must work
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consistently and constantly to adapt to evolving circumstances, including reductions in the incarcerated populations, to ensure that they modify and adapt facilities to accommodate greater social distancing. Once widespread testing is available and implemented, any person who tests positive for COVID-19 must be quarantined for the duration of his illness.
Finally, the above measures are only as effective as those who are entrusted to implement and follow them are informed. Education among the Jail population is imperative. The men must receive general information and updates about COVID19, including the virus’s symptoms and how it is transmitted, in a format they understand. Jail staff must provide incarcerated people with instructions on how to use a facemask and why its use is important, as well as explain the importance of social distancing. Incarcerated people must understand how to protect themselves from the virus, including how to properly wash their hands. They need to know that they will not be responsible for medical copays for the duration of the pandemic and, thus, should seek medical attention if they feel ill. This information must be accessible in multiple formats—on written signage, via verbal presentations, in languages other than English, etc.—throughout the jail’s common areas.
CONCLUSION The nation’s prisons and jails are incubators for COVID-19. Without adequate protective measures in place, scores of people have and will fall ill. Many more will
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die. As the public acquires more information about the virus every day, certain

measures of mitigation and prevention are clear: vigorous methods of cleanliness

and sanitation, personal protective equipment, social distancing, and education. The

district court ordered Appellants to take measures in each of the above categories—

all of which are necessary and feasible from a correctional point of view. Immediate

and enforceable implementation of these measures in the Metro West Detention

Center is imperative and comports with sound correctional practice, and must be in

practice for the duration of this stage of the pandemic. As Justice Sotomayor

acknowledged recently in a similar case,

The stakes could not be higher.1

Respectfully submitted,

STUDENT LAW OFFICE

s/ Danielle C. Jefferis Danielle C. Jefferis* University of Denver Sturm College of Law 2255 E. Evans Avenue, Suite 335 Denver, CO 80208 Tel: 303.871.6155 | Fax: 303.871.6847 Email: djefferis@law.du.edu *Counsel of Record

May 28, 2020

Counsel for Amici Curiae

1 Valentine v. Collier, 590 U.S. ___ (2020) (Sotomayor, J. respecting denial of application to vacate stay).
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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Federal Rule of Appellate Procedure 29(a)(5) because it contains 3,609 words, excluding the parts of the brief exempt by Federal Rule of Appellate Procedure 32(f). This document complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a), because this document has been prepared in a proportionally spaced typeface using Times New Roman in font size 14. Dated: May 28, 2020
s/ Danielle C. Jefferis Danielle C. Jefferis
CERTIFICATE OF SERVICE I hereby certify that on May 28, 2020, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Eleventh Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
s/ Danielle C. Jefferis Danielle C. Jefferis
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 No. 20-11622

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Anthony Swain, Alen Blanco, Bayardo Cruz, Ronniel Martinez-Flores, and Deondre Willis,
Plaintiffs-Appellees, Peter Bernal and Winfred Hill,
Plaintiffs, vs.
Daniel Junior, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department,
and Miami-Dade County, Defendants-Appellants.
Appeal from the United States District Court for the Southern District of Florida

REPLY BRIEF FOR APPELLANTS

ABIGAIL PRICE-WILLIAMS MIAMI-DADE COUNTY ATTORNEY

Ezra S. Greenberg Oren Rosenthal Zach Vosseler Bernard Pastor Assistant County Attorneys

Stephen P. Clark Center 111 N.W. First Street, Suite 2810 Miami, Florida 33128 (305) 375-5151

Counsel for Appellants

No. 20-11622, Swain v. Junior
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit Rule 26.1-1, Appellants Daniel Junior and Miami-Dade County certify that the following persons and entities may have an interest in the outcome of this case: 1. Advancement Project, Counsel for Plaintiffs-Appellees 2. Barnet, Emily, Counsel for Plaintiffs-Appellees 3. Bernal, Peter, Plaintiff* 4. Blanco, Alen, Plaintiff-Appellee 5. Buergel, Susanna M., Counsel for Amici Curiae 6. Civil Rights Corps, Counsel for Plaintiffs-Appellees 7. Cohen, Robert L., Amicus Curiae 8. Community Justice Project, Counsel for Plaintiffs-Appellees 9. Cruz, Bayardo, Plaintiff-Appellee† 10. DLA Piper LLP (US), Counsel for Plaintiffs-Appellees 11. Dolovich, Sharon, Amicus Curiae 12. Dream Defenders, Counsel for Plaintiffs-Appellees 13. Giller, David, Counsel for Amici Curiae 14. Ginsburg, Betsy, Amicus Curiae 15. Goodwin Proctor LLP, Counsel for Amici Curiae 16. Goldenson, Joseph, Amicus Curiae
* Peter Bernal was released from custody on April 29, 2020, via state-court order. † Bayardo Cruz was released from custody on May 20 via state-court order.
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No. 20-11622, Swain v. Junior 17. Greenberg, Ezra S., Counsel for Defendants-Appellants 18. GST LLP, Counsel for Plaintiffs-Appellees 19. Harvey, Thomas B., Counsel for Plaintiffs-Appellees 20. Hill, Winfred, Plaintiff ‡ 21. Hochstadt, Jennifer L., Counsel for Defendants-Appellants 22. Horn, Martin, Amicus Curiae 23. Hubbard, Katherine, Counsel for Plaintiffs-Appellees 24. Jagannath, Meena, Counsel for Plaintiffs-Appellees 25. Jefferis, Danielle C., Counsel for Amici Curiae 26. Johnson, Darren W., Counsel for Amici Curiae 27. Junior, Daniel, Defendant-Appellant 28. Karakatsanis, Alec, Counsel for Plaintiffs-Appellees 29. Kim, Andrew, Counsel for Amici Curiae 30. Kimball-Stanley, David C., Counsel for Amici Curiae 31. Littman, Aaron, Amicus Curiae 32. Martin, Steve, Amicus Curiae 33. Martinez-Flores, Ronniel, Plaintiff-Appellee 34. Miami-Dade County, Defendant-Appellant 35. Miami-Dade County Attorney’s Office, Counsel for Defendants-Appellants 36. Morgan, Richard, Amicus Curiae 37. Pacholke, Dan, Amicus Curiae
‡ Winfred Hill was released from custody on April 21 via state-court order. C2 of 4
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No. 20-11622, Swain v. Junior 38. Paul, Weiss, Rifkind, Wharton & Garrison LLP, Counsel for Amici Curiae 39. Pastor, Bernard, Counsel for Defendants-Appellants 40. Pfaff, John, Amicus Curiae 41. Price-Williams, Abigail, Miami-Dade County Attorney 42. Ragsdale, Maya, Counsel for Plaintiffs-Appellees 43. Reinert, Alexander A., Amicus Curiae 44. Rodriguez-Taseff, Lida, Counsel for Plaintiffs-Appellees 45. Rosenthal, Oren, Counsel for Defendants-Appellants 46. Saleh, Sumayya, Counsel for Amici Curiae 47. Sanoja, Katherine Alena, Counsel for Plaintiffs-Appellees 48. Santos, Jaime Ann, Counsel for Amici Curiae 49. Schlanger, Margo, Amicus Curiae 50. Simson, Emma, Counsel for Plaintiffs-Appellees 51. Smith, R. Quinn, Counsel for Plaintiffs-Appellees 52. Southern Poverty Law Center, Counsel for Amici Curiae 53. Sparkman, Emmitt, Amicus Curiae 54. Stanley, Phil, Amicus Curiae 55. Swain, Anthony, Plaintiff-Appellee 56. Torres, Hon. Edwin G., United States Magistrate Judge 57. Twinem, Alexandria, Counsel for Plaintiffs-Appellees 58. University of Denver College of Law, Student Law Office/Civil Rights
Clinic, Counsel for Amici Curiae C3 of 4
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No. 20-11622, Swain v. Junior 59. Vail, Eldon, Amicus Curiae 60. Viciana, Ana Angelica, Counsel for Defendants-Appellants 61. Volchok, Daniel S., Counsel for Plaintiffs-Appellees 62. Vosseler, Zach, Counsel for Defendants-Appellants 63. Williams, Brie, Amicus Curiae 64. Williams, Hon. Kathleen M., United States District Judge 65. Willis, Deondre, Plaintiff-Appellee 66. Wilmer Cutler Pickering Hale and Dorr, LLP, Counsel for Plaintiffs-
Appellees 67. Yang, Tiffany, Counsel for Plaintiffs-Appellees 68. Zaron, Erica, Counsel for Defendants-Appellants This appeal involves a governmental defendant, Miami-Dade County, which is a political subdivision of the State of Florida. There are no parent companies, subsidiaries, or affiliate companies that have issued shares to the public.
/s/ Ezra S. Greenberg Ezra S. Greenberg Assistant County Attorney
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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT ....................... C1 TABLE OF AUTHORITIES ........................................................ ii REPLY BRIEF FOR APPELLANTS ...............................................1
I. The District Court Abused Its Discretion by Concluding that Plaintiffs Were Likely to Show Defendants Acted with Deliberate Indifference.....1 A. The district court’s ﬁndings on social distancing do not support a conclusion that Defendants were deliberately indifferent .......... 2 B. Director Junior lacks legal authority to release MDCR inmates, so his failure to do so is not evidence of deliberate indifference .... 11
II. The District Court Erred in Failing to Address Municipal Liability ..... 16 III. Defendants Properly Raised the PLRA Exhaustion Defense Below ..... 18 IV. The District Court Erred in Its Analyses on the Remaining
Preliminary Injunction Elements ............................................ 21 A. The district court erred in ﬁnding irreparable harm based
solely on the danger of COVID-19 ..................................... 21 B. The district court erred in balancing the harms ...................... 21 V. The Mandatory Injunction Violates the PLRA and Rule 65 .............. 23 CONCLUSION ........................................................................ 24 CERTIFICATES OF COMPLIANCE ........................................... 25 CERTIFICATE OF SERVICE..................................................... 25
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TABLE OF AUTHORITIES
Cases
Amos v. Taylor, No. 20-0007, 2020 WL 1978382 (N.D. Miss. Apr. 24, 2020) ...................... 8
Blue Martini Kendall, LLC v. Miami-Dade County, 816 F.3d 1343 (11th Cir. 2016)......................................................... 19
Brooks v. Warden, 706 F. App’x 965 (11th Cir. 2017) .................................................... 20
Brown v. Plata, 563 U.S. 493 (2011) ................................................................ 12, 13
Chandler v. Crosby, 379 F.3d 1278 (11th Cir. 2004) ........................................................ 10
Church v. City of Huntsville, 30 F.3d 1332 (11th Cir. 1994) ...................................................... 16, 17
Cita Tr. Co. AG v. Fifth Third Bank, 879 F.3d 1151 (11th Cir. 2018) ......................................................... 19
Cox Enters., Inc. v. News-Journal Corp., 510 F.3d 1350 (11th Cir. 2007) ......................................................... 8
Ex parte Young, 209 U.S. 123 (1908) .................................................................... 14
Farmer v. Brennan, 511 U.S. 825 (1994) ..........................................................2, 10, 11, 15
Frazier v. Kelley, No. 20-0434, 2020 WL 2561956 (E.D. Ark. May 19, 2020) ........................ 9
Grech v. Clayton County, 335 F.3d 1326 (11th Cir. 2003) (en banc) ............................................. 16
Hale v. Tallapoosa County, 50 F.3d 1579 (11th Cir. 1995) ...................................................... 7, 8, 9
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Hartley v. Parnell, 193 F.3d 1263 (11th Cir. 1999) ......................................................... 17
Kimbrough v. Sec’y, Fla. Dep’t of Corr., No. 18-10502, 2020 WL 1933929 (11th Cir. Apr. 22, 2020) ....................... 20
Knight ex rel. Kerr v. Miami-Dade County, 856 F.3d 795 (11th Cir. 2017) .......................................................... 17
Manning v. City of Roanoke ex rel. Caldwell, 930 F.3d 264 (4th Cir. 2019) .......................................................... 19
Marbury v. Warden, 936 F.3d 1227 (11th Cir. 2019) .......................................................7, 8
Marlowe v. LeBlanc, No. 20-30276, 2020 WL 2043425 (5th Cir. Apr. 27, 2020), application to vacate stay denied, 590 U.S. —, No. 19A1039 (May 29, 2020) ...................... 9
Martinez-Brooks v. Easter, No. 20-0569, 2020 WL 2405350 (D. Conn. May 12, 2020) ....................... 14
Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310 (1940) ...................................................................7, 8
Monell v. Department of Social Services, 436 U.S. 658 (1978) ................................................................16, 17
Ochran v. United States, 117 F.3d 495 (11th Cir. 1997) .......................................................... 20
P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993) .................................................................... 14
Reese v. Herbert, 527 F.3d 1253 (11th Cir. 2008) ........................................................ 19
Rodriguez v. Sec’y, Dep’t of Corr., 508 F.3d 611 (11th Cir. 2007).......................................................... 10
Rooﬁng & Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982 (11th Cir. 1982) ......................................................... 19
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Rosario v. Miami-Dade County, 490 F. Supp. 2d 1213 (S.D. Fla. 2007) ............................................... 17
South Bay United Pentecostal Church v. Newsom, 590 U.S. —, 2020 WL 2813056 (May 29, 2020) ................................... 22
Swain v. Junior, 958 F.3d 1081 (11th Cir. 2020) ................................................... passim
Taylor v. Freeman, 34 F.3d 266 (4th Cir. 1994) ............................................................ 22
Truss v. Warden, 684 F. App’x 794 (11th Cir. 2017) ..................................................... 9
Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020), application to vacate stay denied, 590 U.S. —, 2020 WL 2497541 (May 14, 2020) .................................................... 9
Verizon Md., Inc. v. Pub. Serv. Comm’n, 535 U.S. 635 (2002) .................................................................... 14
Wragg v. Ortiz, No. 20-5496, 2020 WL 2745247 (D.N.J. May 27, 2020) ........................... 9
Statutes 18 U.S.C. §§ 3626(a)(3)(B) & (g)(4).................................................... 12 Fla. Stat. §§ 903.011-.36 ................................................................. 13 Fla. Stat. §§ 907.04-.045 ................................................................ 13 Fla. Stat. §§ 951.01-.29................................................................... 13
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REPLY BRIEF FOR APPELLANTS I. The District Court Abused Its Discretion by Concluding that Plaintiffs
Were Likely to Show Defendants Acted with Deliberate Indifference. Rather than defend the order under review, Plaintiffs mischaracterize it, asking the Court to adopt their new version of the district court’s holdings in lieu of the defective order they now abandon. In doing so, Plaintiffs posit two alternative holdings for ﬁnding Defendants deliberately indifferent that the district court never made: First, Defendants are deliberately indifferent for failing to implement feasible social distancing measures; and second, astoundingly, Defendants are deliberately indifferent for refusing to depopulate Metro West Detention Center, which Plaintiffs acknowledge would itself violate state law and state court orders. Plaintiffs cannot cure the district court’s legal errors by improperly asking this Court to effectively rewrite the injunction and adopt alternative theories of liability based on factual findings and legal conclusions that the district court never made. The district court’s order twice makes clear that its deliberate indifference ﬁnding was not based on resolving any factual disputes against Defendants. R.100 at 35 (“[E]ven if the Court were to credit all of Defendants’ evidence at this stage and discount the factual disputes about implementation of Defendants’ policies and procedures, Plaintiffs have nonetheless made a clear showing as to each of the four factors required for injunctive relief.” (emphasis added)); id. at 37 (“[E]ven considering the measures Defendants have adopted—and setting aside the numerous factual disputes as to the consistency and efficacy of those measures—the record nonetheless can be seen to
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demonstrate deliberate indifference.” (emphasis added)). There is only one way to read these passages: “The district court accepted as true that the defendants implemented [numerous safety] measures for purposes of issuing the preliminary injunction and did not resolve any factual disputes in favor of the plaintiffs.” Swain v. Junior, 958 F.3d 1081, 1086 (11th Cir. 2020).
The Court should reject Plaintiffs’ attempt to create their own order, replete with new factual ﬁndings and new legal conclusions, and instead vacate the preliminary injunction.
A. The district court’s ﬁndings on social distancing do not support a conclusion that Defendants were deliberately indifferent.
A response to the initial brief ’s principal argument—that the district court abused its discretion by misapplying the subjective prong of deliberate indifference under Farmer v. Brennan, 511 U.S. 825, 844 (1994), see Initial Br. 25-35—is nowhere to be found in Plaintiffs’ answer brief. Plaintiffs ignore the district court’s central holding that deliberate indifference was evident from the spread of COVID-19 at Metro West. They have essentially abandoned most of the original reasons for seeking a preliminary injunction—that Defendants did not provide toilet paper, soap, basic hygiene, or sanitization—in favor of an ever-changing complaint that in its newest iteration is articulated as a failure to achieve some amorphous level of additional social distancing that, while feasible, is not being done.
The district court’s actual reason for ﬁnding deliberate indifference was that the measures Defendants implemented were not constitutionally sufficient in light of the
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“exponential rate of infection” at Metro West. R.100 at 37-38. The court, citing to another district court decision ﬁnding deliberate indifference because the virus was spreading inside that jail, concluded that the subjective intent prong was satisﬁed. Id. at 38-39. The court found that Plaintiffs had met their burden on that prong, not based on the reasonableness of their response (a response already implemented before the court’s order), but because the implemented measures were inadequate to stem the spread of the virus to the court’s satisfaction. Id. at 40-41.
Plaintiffs don’t defend this analysis. They conjure a new deliberate indifference ﬁnding based on a “failure to implement distancing measures feasible with the jail’s current population.” Answer Br. 26. In framing the issue this way, Plaintiffs misstate the district court’s actual determination regarding Defendants’ efforts to implement social distancing at Metro West. Plaintiffs argued below that social distancing “continues to be impossible” but that “the failure to achieve social distancing alone is sufficient to establish deliberate indifference, even if there is no evidence that social distancing [is] possible within the facility.” R.85 at 34 (emphases added). The district court adopted that argument, ﬁnding Plaintiffs had proven deliberate indifference because social distancing “has not and cannot be achieved” at Metro West’s current population level. R.100 at 35.
Plaintiffs’ new argument—which they audaciously claim was a holding below— cannot be gleaned from the district court’s order. Plaintiffs erroneously contend that the district court found that Defendants “neither adopted nor implemented feasible social-distancing measures.” Answer Br. 27-28. This concept of “feasible” social
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distancing measures appears nowhere in the district court’s order, but Plaintiffs’ brief references it no fewer than fourteen times. Most egregiously, Plaintiffs advance the novel claim that “medically required” social distancing (another new construct created on appeal) is still impossible, thereby requiring prison reduction, but that “feasible social distancing” has not occurred, thereby establishing deliberate indifference. Id. at 1, 4, 16, 27-29, 41 (emphases added). Plaintiffs expect this Court to buy this freshly baked social distancing dichotomy—entirely absent from the record—to save a deﬁcient preliminary injunction order.
The district court did not analyze deliberate indifference the way Plaintiffs now wish it had. Instead, it accepted as true that Defendants adopted social distancing measures. It “set[] aside the numerous factual disputes as to the consistency and efficacy” of those measures. Id. at 37. And it still found deliberate indifference on account of a lack of social distancing, just as Plaintiffs asked it to, because social distancing “cannot be achieved absent an additional reduction in Metro West’s population” or some other undeﬁned measure. Id. at 35, 37 (emphasis added). Plaintiffs characterize what the district court did as “reserving judgment” on the factual disputes, Answer Br. 29, but, however characterized, the district court “accepted as true that the defendants implemented [numerous safety] measures for purposes of issuing the preliminary injunction and did not resolve any factual disputes in favor of the plaintiffs,” Swain, 958 F.3d at 1086. And it found that social distancing cannot be achieved at current population levels, not that Defendants deliberately failed to achieve it.
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It is understandable that the district court failed to credit much of the “evidence” that Plaintiffs now improperly ask this Court to credit in the ﬁrst instance. Deviating from our legal system’s ordinary course of proof, Plaintiffs submitted the bulk of their evidentiary support for their motion for preliminary injunction in connection with their reply, ﬁled just two days before the preliminary injunction hearing. R.80; R.81; R.85.
Plaintiffs proffered declarations from twenty Metro West inmates that contain largely irrelevant, speculative, and inadmissible hearsay statements (almost exclusively from unnamed speakers) that cannot be veriﬁed or falsiﬁed. E.g., R.81-1 at 4 ¶ 12, 58 ¶ 41 (claiming “high-up officers” stated that social distancing is impossible); id. at 15-16 ¶ 6 (claiming that an unnamed officer said he is “scared of going in” to a cell); id. at 66-67 ¶ 11 (stating that unnamed nurses and officers are thankful for this lawsuit and do not speak out themselves for fear of losing their jobs); id. at 24 ¶ 22, 35 ¶ 17, 55 ¶ 13 (assuming dormitories are not actually being disinfected while inmates are at recreation because it “only takes 30 minutes” and they don’t smell like bleach afterwards); id. at 31-32 ¶¶ 15-17 (submitting, without personal knowledge, that two other inmates were ill and received delayed medical care). Several declarations were submitted by former Metro West inmates; their releases render their testimony irrelevant and stale, especially considering MDCR’s rapidly evolving response to the pandemic. E.g., id. at 9 ¶ 2 (released “three weeks to a month” before April 23), 19 ¶ 2 (released April 23), 23 ¶ 2 (released April 10), 31 ¶ 3 (released “around two weeks” before April 24), 45 ¶ 2 (released April 3).
Despite these obvious failings, the declarations largely, if unwittingly, corroborate 5
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the extensive remedial efforts undertaken by Defendants to prevent the spread of COVID-19 within Metro West. For example, Kellen Stuhlmiller, an inmate worker, explained his daily cleaning routine and veriﬁed that units are disinfected weekly with an industrial fogger. R.81-5 ¶¶ 22, 25. He stated that tables in the common area were reconﬁgured and marking tape was placed on the ﬂoor in certain areas to designate a distance of six feet to encourage social distancing. Id. ¶¶ 11, 13. He veriﬁed that units contain liquid hand soap and paper towels in addition to the individual bar soap each inmate receives. Id. ¶ 27; see also R.81-1 at 5-6 ¶¶ 26, 32, 36 (tape marking on ﬂoor for social distancing; liquid hand soap and paper towels available; signage posted in dorm listing symptoms of COVID-19; frequent intercom announcements reminding inmates to wash their hands and practice social distancing); id. at 12 ¶¶ 4, 7, 11-12 (inmates have masks; bunks are staggered to effect social distancing; inmates receive new uniforms and sheets once a week; there is a washer and dryer in the unit; inmate temperatures are checked twice daily); id. at 23-24 ¶¶ 11-12, 16 (officers wear masks, clean their areas, and attempt to minimize contact with inmates; inmate workers wear gloves to pass out food); id. at 60¶ 2 (conﬁrming a decrease in inmate population); id. at 69 ¶¶ 3, 9-11 (bunks removed from the unit to create more space; receives clean uniforms and sheets every week; has access to laundry facility); R.81-3 ¶¶ 5-7, 11, 14-17 (tested for COVID-19 upon displaying symptoms and medically isolated at another facility where he was monitored daily by medical providers).
It is beyond dispute that Defendants voluntarily adopted numerous policies to reduce the risk of COVID-19 before the lawsuit—some of which, ironically, appeared
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in the expanded requirements of the injunction. In the end, the district court failed to identify a single policy measure which Defendants knew would reduce the potential harm of COVID-19 but knowingly or recklessly declined to adopt. Swain, 958 F.3d at 1089; see Marbury v. Warden, 936 F.3d 1227, 1233 (11th Cir. 2019); Hale v. Tallapoosa County, 50 F.3d 1579, 1583-85 (11th Cir. 1995).
The entire answer brief appears to hinge on the district court’s observation that several inmates indicated that social distancing “is not uniformly enforced.” R.100 at 37-38. But the district court never linked this observation to Defendants’ subjective knowledge, “so these lapses in enforcement do little to establish that the defendants were deliberately indifferent.” Swain, 958 F.3d at 1089. It also never explained why it would credit these inmate declarations over (1) the independent inspection report— commissioned at its own insistence—that found that Defendants were “doing their best balancing social distancing and regulation applicable to the facility,” R.70-1, (2) Defendants’ numerous declarations showing that social distancing enforcement is an ongoing priority, R.65-1 ¶¶ 71, 100; R.65-5 ¶ 5; R.65-9 ¶ 10; R.65-25, and (3) other portions of inmate declarations which corroborate that social distancing is routinely enforced, see supra at 6. Given this factual record and the district court’s multiple statements that it arrived at its deliberate indifference ﬁnding after setting aside the factual disputes about the “implementation” and “consistency” of Defendants’ policies, R.100 at 35, 37, it is not plausible to read the district court’s remark about intermittent enforcement as a factual ﬁnding that supports deliberate indifference by Defendants. See Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310, 316 (1940)
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(requiring that factual ﬁndings supporting a preliminary injunction be speciﬁcally set out under Rule 52(a)).1
At any rate, inmates’ and staff members’ isolated failures to perfectly carry out Defendants’ policies, even if true, could not satisfy Plaintiffs’ burden. See Amos v. Taylor, No. 20-0007, 2020 WL 1978382, at *11 (N.D. Miss. Apr. 24, 2020) (denying preliminary injunction where plaintiff showed sporadic failures to implement policies). Grasping from the factual record, Plaintiffs cite Director Junior’s pre-suit directives to implement social distancing policy as evidence of his knowledge that social distancing is critical to support a ﬁnding of deliberate indifference. Answer Br. 27 (citing R.65-25). But the directive that everyone practice strict social distancing shows the opposite of deliberate indifference: a conscientious, positive action that demonstrates Director Junior’s conscious attempt to abate the risk of COVID-19. In furtherance of this directive, on April 16, Director Junior instituted ten additional policies to protect inmates from COVID-19, nearly all of which relate to social distancing. R.65-1 ¶ 102. Director Junior is not aware of systemic failures to carry out his social distancing directives. R.92-2 ¶ 14.
What Plaintiffs needed to show was that Defendants knew social distancing measures were lacking and still declined to act. Marbury, 936 F.3d at 1233; Hale, 50
1 Even if the Court accepted Plaintiffs’ improper invitation to reinvent the factual basis of the deliberate indifference ﬁnding, it would have been an abuse of discretion for the district court to make such a ﬁnding without some explanation for its resolution of disputed factual issues. Cf. Cox Enters., Inc. v. News-Journal Corp., 510 F.3d 1350, 1360 (11th Cir. 2007). 8
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F.3d at 1583. The district court did not and could not make this ﬁnding.2 See Wragg v.
Ortiz, No. 20-5496, 2020 WL 2745247, at *22 (D.N.J. May 27, 2020) (failing to
achieve full social distancing insufficient to establish likelihood of success on Eighth
Amendment claim); Frazier v. Kelley, No. 20-0434, 2020 WL 2561956, at *30 (E.D.
Ark. May 19, 2020) (defendants’ adoption of reasonable policies based on CDC
guidance precluded deliberate indifference claim).
In this respect, the answer brief picks up where the district court leaves off,
collapsing the objective and subjective portions of the deliberate indifference inquiry.
In arguing only that Defendants are aware of the dangers posed by COVID-19 and the
importance of social distancing, Plaintiffs sidestep their obligation to identify evidence
supporting a conclusion that Defendants subjectively disregarded a risk of harm. And
by avoiding any real analysis of the subjective intent prong, Plaintiffs scrupulously
downplay all the steps Defendants have taken to minimize the risk of COVID-19 at
Metro West. It is understandable that they do so, since the adoption of reasonable
2 The stay orders in this case, and in Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020), application to vacate stay denied, 590 U.S. —, 2020 WL 2497541 (May 14, 2020), and Marlowe v. LeBlanc, No. 20-30276, 2020 WL 2043425 (5th Cir. Apr. 27, 2020), application to vacate stay denied, 590 U.S. —, No. 19A1039 (May 29, 2020), as well as this Court’s opinion in Truss v. Warden, 684 F. App’x 794 (11th Cir. 2017), provide the proper lens for analyzing a case where the potential harm to inmates comes from an outside contagion. The Court in Truss reasoned that a jail’s adoption of various policies to mitigate the risk of tuberculosis in an over-crowded prison defeated a deliberate indifference claim based on the failure to satisfy the subjective prong of the analysis. Id. at 796-97. And, like the motions panel did here, it found that factual disputes regarding whether Defendants’ policies were uniformly implemented could not alone establish deliberate indifference. Id. at 798; Swain, 958 F.3d at 1089-90. 9
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measures and policies to address a substantial risk defeats a deliberate indifference claim, even if those efforts are insufficient to fully mitigate the risk. See Farmer, 511 U.S. at 844; Rodriguez v. Sec’y, Dep’t of Corr., 508 F.3d 611, 619-20 (11th Cir. 2007); Chandler v. Crosby, 379 F.3d 1278, 1290 (11th Cir. 2004).
Plaintiffs’ last resort is the argument that Defendants’ references to their myriad mitigation efforts amounts to a we’ve-done-enough-on-other-fronts basis for avoiding liability. Answer Br. 29. That has never been Defendants’ approach to the threat posed by COVID-19 at Metro West. Nevertheless, reasonable measures in a congregate setting will surely differ from those that would be taken if Defendants could wave a magic wand and redesign the entire layout of the facility.
Another tactic Plaintiffs employ to downplay Defendants’ substantial mitigation efforts is an overreliance on outlandish hypotheticals. They posit that Defendants would forgo an available, low-cost vaccine in lieu of other, easier measures. Answer Br. 39. But Defendants began responding to this pandemic before this lawsuit was ﬁled and, mid-suit, undertook contact tracing that was not required by the CDC or TRO— and was destined to produce more positive test results—in the days leading up to the injunction hearing. Initial Br. 12-13, 29. So it is beyond disingenuous for Plaintiffs to introduce the specter that Defendants will one day rest on their ongoing mitigation tactics as a basis to refuse to administer a low-cost vaccine to the inmate population.
In the end, the district court found that social distancing “cannot be achieved” at Metro West, not because Defendants ignored the issue, but because it found that the
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number of COVID-positive inmates belied their efforts. R.100 at 35, 37. Farmer precludes this sort of ends-driven reasoning. The district court erred in allowing the increase in positive cases to serve as the sine qua non of deliberate indifference. Pejorative references to rushed decision-making aside, the motions panel correctly found that the district court abused its discretion by failing to properly apply the law in the subjective portion of the deliberate indifference inquiry. The Court should reject Plaintiffs’ offer to paper over those errors by substituting a new rationale for deliberate indifference predicated on factual ﬁndings that the district court never made and legal analysis that still does not satisfy controlling precedent requiring evidence that Defendants knew how to reduce the risk of harm and recklessly refused to do so. Because Defendants have demonstrated an abuse of discretion in the district court’s deliberate indifference analysis, the injunction cannot stand.
B. Director Junior lacks legal authority to release MDCR inmates, so his failure to do so is not evidence of deliberate indifference.
The second finding Plaintiffs conjure on appeal is that Director Junior is deliberately indifferent for failing to release inmates even though doing so would violate state law. Plaintiffs’ arguments on Defendants’ authority to release inmates are downright schizophrenic. On the one hand, they claim that “Junior’s enforcement of pretrial detention orders when jail population size precludes adequate distancing” is a basis for a ﬁnding deliberate indifference. Answer Br. 26. Simultaneously, they concede that Director Junior is precluded from ordering release under state law and that inmates
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cannot be released from prison except by a three-judge panel. Answer Br. 22-23.3 But, as the unrebutted record shows, Director Junior is actively cooperating with the state court process that the district court found was responsible for releasing more than 600 inmates because of the risk posed by COVID-19. R.100 at 26-27 & n.12; R.54; R.651 ¶¶ 17, 90-91; R.65-22; R.92-2 ¶¶ 16-17; R.113. Plaintiffs’ three-judge panel concession makes their blind insistence that Director Junior is deliberately indifferent for not sua sponte releasing inmates from custody that much more puzzling. Director Junior cannot be deliberately indifferent for taking every action within his legal authority.
It bears repeating, this is not a ﬁnding that the district court actually made. Plaintiffs cite to pages 37-38 of the order, Answer Br. 26, but nothing on those pages remotely suggests that the district court found deliberate indifference in Director’s Junior’s failure to violate state law, ignore pretrial detention orders, and release inmates at will. Such a ﬁnding would run contrary to the district court’s crediting of Judge Sayﬁe’s testimony that the state court’s “hyper focus” on release, a process with which Defendants were cooperating fully, is working. R.100 at 26-27 & n.12.
Plaintiffs’ reliance on Brown v. Plata, 563 U.S. 493 (2011), is misplaced; that case provides the wrong lens through which to view this one. Brown addressed the propriety of the ultimate remedial order issued by a three-judge court to reduce California’s prison population after more than a decade of litigation had already addressed the underlying questions of liability. And Brown addresses a very different type of harm,
3 The PLRA expressly permits only an empaneled three-judge court to release prisoners. 18 U.S.C. §§ 3626(a)(3)(B) & (g)(4). 12
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one caused by the State of California itself in allowing its prisons to reach 200% of design capacity and failing to remediate the overcrowding after a decade of litigation. Unlike in Brown, Defendants did not create a situation involving overcrowding (Metro West is operating at one-third under capacity and falling), nor are they the reason why it can be difficult to achieve complete social distancing in dormitory style housing units. And since Defendants are not the source of these difficulties—they do not control the inmate population and cannot redesign the physical structure of Metro West in the midst of the pandemic—their failure to reduce the overall inmate population to some magic number cannot bear on the deliberate indifference inquiry. See supra note 2.
Brown undermines Plaintiffs for other reasons, too. Before upholding the population reduction order, the Supreme Court noted how numerous public officials, including the former governor of California and secretary of its prison system, decried overcrowding as the cause of substantial harm to inmates. 563 U.S. at 503, 535. But the Court never insisted that these actors should themselves have released inmates. No fair reading of Brown supports deliberate indifference here.
MDCR holds pretrial detainees like Plaintiffs on behalf of the State of Florida and, unless an inmate posts bond, cannot release the inmate without an order from the state court system. R.135 at 20:3-7; R.65-1 ¶ 89-90. Plaintiffs’ argument highlights their fundamental misunderstanding of Florida’s criminal justice system. The County and the State are separate legal entities. The State has enacted speciﬁc statutes regulating the terms and conditions of pretrial conﬁnement. Fla. Stat. §§ 903.011-.36 (bond and bail); §§ 907.04-.045 (pretrial detention release); §§ 951.01-.29 (county jails). Plaintiffs
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do not dispute that state law precludes Defendants from releasing them—indeed, they
argue that Defendants violated their rights by following state law.4
Plaintiffs fail to appreciate that violating state law is not an option, and Defendants
cannot be deliberately indifferent for failing to take steps that would violate state law.
And these failings infect their reasoning on deliberate indifference. Defendants’
adoption of policies that they are legally and logistically capable of implementing, and
which they subjectively believe are reasonable to mitigate the harm, necessarily
precludes a deliberate indifference claim.5
Here too Plaintiffs employ hyperbolic and false hypotheticals rather than address
the subjective prong of deliberate indifference. They concoct examples of a broken levee
about to ﬂood the jail or a disrupted supply-chain for the jail’s food vendor. Answer
4 In this respect, Defendants do not stand in the same shoes as ICE or the BOP, who have independent statutory discretion to transfer inmates to home conﬁnement. E.g., Martinez-Brooks v. Easter, No. 20-0569, 2020 WL 2405350, at *1 (D. Conn. May 12, 2020).
5 Plaintiffs’ invocation of Ex parte Young, 209 U.S. 123 (1908), both here and with respect to their arguments that they satisﬁed the requirements for municipal liability, is a distraction. Ex parte Young is a “narrow” exception to Eleventh Amendment state sovereign immunity, under which “suits seeking prospective, but not compensatory or other retrospective relief, may be brought against state officials in federal court challenging the constitutionality of official conduct enforcing state law.” P.R.Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 145-46 (1993). But there’s never been so much as a whisper of an argument from Defendants—a municipality and a municipal official sued in his official capacity—that this suit is barred by the Eleventh Amendment. And the Ex parte Young doctrine is entirely unsuited to the purpose for which Plaintiffs raise it—to support their likelihood of success on the merits of their deliberate indifference claim—because “the inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the claim.” Verizon Md., Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 646 (2002).
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Br. 35-36. In these chimerical scenarios Defendants would obviously take temporary measures to remove the inmates from harm while maintaining custody. Inmates would not drown or starve, but they would not be released back into society, either.
Although COVID-19 is a serious public health threat, it is not a temporary localized disaster than can be averted by a swift and short-term movement of inmates. It pervades every community and affects everyone with no clear end in sight. That said, the Constitution does not require a jailor to release inmates in violation of state law simply because the risk of COVID-19 spreading cannot be ameliorated in a jail setting to the same extent as it could on the outside. “No part of our country has escaped the effects of COVID-19,” Swain, 958 F.3d at 1085, and the mere fact that the virus is present in Metro West cannot give rise to an obligation on the jailor’s part to depopulate the prison.
The premise upon which Plaintiffs now rely to build their entire case—that ideal social distancing (redeﬁned as “medically required” distancing for purposes of this appeal) cannot be achieved at Metro West’s current population—is insufficient to override Farmer’s stringent culpability standard and to transfer control of the jail over to the district court. Were it otherwise, every dormitory-style prison in the United States in which COVID-19 infections have increased would be subject to federal judicial control, and every inmate in those prisons would have a constitutional right to be removed or to have a number of their fellow inmates removed. That is not the law.
Plaintiffs are clearly not likely to succeed on the merits when, to substitute for the district court’s failure to properly analyze deliberate indifference, this Court would be
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forced to adopt a radical new rule of law opening up every state and municipal jail in the Eleventh Circuit to a federal lawsuit claiming a jailor is deliberately indifferent for failing to release inmates in violation of state law. II. The District Court Erred in Failing to Address Municipal Liability.
Doubling down on the district court’s error, Plaintiffs argue that they can enjoin a municipality without showing they were likely to succeed in establishing municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (1978). If that doesn’t work, they make a half-hearted attempt to persuade this Court to rule in the ﬁrst instance that they fulﬁlled Monell’s requirements.
Plaintiffs’ attempt to distinguish Church v. City of Huntsville, 30 F.3d 1332 (11th Cir. 1994), is unavailing. Answer Br. 41 n.3. Church’s conclusion that the district court erroneously held that the plaintiffs would likely satisfy Monell is functionally indistinguishable from this Court’s conclusion that the district court had to ﬁnd a likelihood of success on Monell to enjoin Defendants. See Swain, 958 F.3d at 1091. The result is the same in either situation: vacatur of an injunction on account of a plaintiff’s failure to satisfy Monell.
On the merits, it is altogether unclear how Plaintiffs can so assuredly state that they will likely prevail when they have never pointed to evidence showing a policy or custom of violating constitutional rights. A plaintiff must show the existence of an officially promulgated county policy or an “unofficial custom or practice of the county shown through the repeated acts of a ﬁnal policymaker for the county.” Grech v. Clayton County, 335 F.3d 1326, 1329 (11th Cir. 2003) (en banc) (emphasis added). Plaintiffs’
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focus on anecdotal evidence of incomplete implementation of the County’s policies or on inmates failing to social distance raises precisely the type of respondeat superior liability Monell prohibits. Knight ex rel. Kerr v. Miami-Dade County, 856 F.3d 795, 819 (11th Cir. 2017). A plaintiff pursuing a municipal liability claim must demonstrate an unofficial policy by proving a pattern of constitutional violations that are “obvious, ﬂagrant, rampant and of continued duration, rather than isolated occurrences.” Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (emphasis added). Plaintiffs’ brief fails to address their burden of demonstrating their likelihood of success in establishing an unofficial policy, a burden which the district court improperly relieved them from undertaking.
As for Plaintiffs’ ﬁnal policymaker argument, no court has ever found delegation to the head of a Miami-Dade County department under Monell. “Whether an official has ﬁnal policymaking authority is a question of state law,” Church, 30 F.3d at 1342, a question the Southern District of Florida has conclusively answered, rejecting delegation arguments like Plaintiffs’. See Rosario v. Miami-Dade County, 490 F. Supp. 2d 1213, 1222-23 (S.D. Fla. 2007). Plaintiffs presented no evidence that any inaction they claim persists at Metro West results from deliberate indifference by the County’s ﬁnal policymakers, the Mayor and the Board of County Commissioners or, even under their ﬂawed delegation theory, Director Junior.
Plaintiffs elected to sue a municipality, so the requirement that they show a likelihood of proving municipal liability is not optional. The district court abused its discretion in failing to address the prerequisites to such liability in its preliminary
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injunction order. III. Defendants Properly Raised the PLRA Exhaustion Defense Below.
Plaintiffs do not defend the district court’s erroneous refusal to analyze Defendants’ PLRA exhaustion defense at the preliminary injunction stage. They implore the Court to disregard this error because Defendants’ decision not to waste the district court’s time by copy-pasting their entire motion to dismiss raising failure to exhaust, R.66, into the response to the preliminary injunction motion that they ﬁled (literally) two minutes later, R.67, had the unintended effect of “waiving” the exhaustion defense.
Plaintiffs’ argument is premised on a footnote statement that Defendants “have not properly raised the issues in the motion to dismiss with the Court by attempting to incorporate their entire motion in the Response.” R.100 at 28 n.14. But this Court found exactly the opposite, and Plaintiffs provide no authority justifying the Court’s departure from its prior conclusion that “defendants correctly raised and briefed the defense in a motion to dismiss and in their opposition to the plaintiffs’ motion for a preliminary injunction.” Swain, 958 F.3d at 1092. In any event, the district court’s throwaway statement did not weigh in its actual conclusion—announced not once, but twice—that exhaustion “is not an issue to be decided at the preliminary injunction stage.” Id. at 28; see also id. at 29-30.6
6 Plaintiffs fault Defendants for not mentioning the waiver argument in their initial brief but cite no caselaw supporting the proposition that an appellant abandons an issue if it does not discuss every jot and tittle a district court writes on the way to its ultimate conclusion. To the contrary, when a district court ﬁnds a waiver but then 18
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Even if this Court were to accept Plaintiffs’ formalistic contention that the exhaustion argument was waived in the district court, it should exercise its discretion to excuse any possible waiver. Manning v. City of Roanoke ex rel. Caldwell, 930 F.3d 264, 271 (4th Cir. 2019) (en banc). Excusal is warranted on three grounds.
First, the question whether a district court is required to consider an exhaustion defense at the preliminary injunction stage is “a pure question of law” that would “result in a miscarriage of justice” if it weren’t addressed now. Cita Tr. Co. AG v. Fifth Third Bank, 879 F.3d 1151, 1156 (11th Cir. 2018) (cleaned up); see also Blue Martini Kendall, LLC v. Miami-Dade County, 816 F.3d 1343, 1349 (11th Cir. 2016) (“[A]ny wrong result resting on the erroneous application of legal principles is a miscarriage of justice in some degree.”).
Second, a federal appellate court is justiﬁed in resolving an issue not passed on below, in this case administrative exhaustion, “where the proper resolution is beyond any doubt.” Cita Trust Co., 879 F.3d at 1156 (cleaned up). Plaintiffs impliedly concede this, as their brief puts all their eggs in the waiver basket and devotes not a word to the merits of the district court’s decision to defer analyzing exhaustion.
And third, any concern for avoiding prejudice is assuaged here because Plaintiffs took the opportunity to address the argument below. See Rooﬁng & Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 990 (11th Cir. 1982). Plaintiffs’ forty-
conducts analysis inconsistent with that ﬁnding, this Court is not bound by the waiver. Cf. Reese v. Herbert, 527 F.3d 1253, 1270 (11th Cir. 2008) (refusing to accept a “deemed admitted” record on summary judgment when district court analyzed the evidence).
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one-page “consolidated reply/response” in support of their preliminary injunction motion included a six-page “response to the main arguments in Defendants’ Motion to Dismiss that were incorporated into the preliminary injunction response.” R.84 at 1 (emphasis added); see R.85 at 27-32. In fact, Plaintiffs’ sole live witness at the injunction hearing was called to address exhaustion. R.134 at 27-35. If anything, this manifest lack of prejudice excuses any waiver on Defendants’ part. See Ochran v. United States, 117 F.3d 495, 503 (11th Cir. 1997) (ﬁnding no prejudice when the opponent “fully briefed all the issues”); Kimbrough v. Sec’y, Fla. Dep’t of Corr., No. 18-10502, 2020 WL 1933929, at *5-6 (11th Cir. Apr. 22, 2020) (same).
It cannot be disputed that the exhaustion defense was raised, in accordance with Circuit precedent, via Defendants’ motion to dismiss ﬁled before their response to the preliminary injunction motion.7 “The district court could not determine that the plaintiffs were likely to succeed on their § 1983 claim without, at the very least, ﬁnding that the defendants were unlikely to carry their burden of establishing failure to exhaust.” Swain, 958 F.3d at 1092 (cleaned up). But it made no such ﬁnding, so its entry of the preliminary injunction was an abuse of discretion.
7 Plaintiffs’ suggestion that Defendants didn’t need to raise the exhaustion defense in a motion to dismiss is wrong: a defendant “must raise the exhaustion defense in his ﬁrst Rule 12 motion, otherwise the defense is forfeited and cannot be raised in a later motion under Rule 12.” Brooks v. Warden, 706 F. App’x 965, 968 (11th Cir. 2017) (Martin, J.). 20
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IV. The District Court Erred in Its Analyses on the Remaining Preliminary Injunction Elements. A. The district court erred in ﬁnding irreparable harm based solely on the danger of COVID-19. Plaintiffs once again attempt to rewrite the district court’s order by discussing
the portions dealing with mootness instead of irreparable harm. Answer Br. 48. Still lacking, however, is any factual basis for the district court to reject Defendants’ assertion that Plaintiffs faced no irreparable harm because they would continue enforcing safety measures to respond to the virus, nearly all of which were in place before the district court ordered them. Initial Br. 42 & n.21 The district court grounded its rejection of the sworn assurances of three high-ranking officials in three non sequiturs: “expert testimony,” “medical data on the presence and progress of virus,” and the fact “that Metro West is in the crosshairs of this contagion.” R.100 at 40. But none of the medical experts or data indicated that Defendants would abandon safety measures absent an injunction. And Plaintiffs bypass the question of whether “they will suffer irreparable injuries that they would not otherwise suffer in the absence of an injunction.” Swain, 958 F.3d at 1090-91.
B. The district court erred in balancing the harms. Plaintiffs have no regard for the idea that decision-making on matters of jail administration should be left to jail officials, especially during a public health crisis. But as Chief Justice Roberts just days ago observed, decisions about public health and safety matters should generally be made by those with the most intimate knowledge of them, not by lawyers and judges:
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Our Constitution principally entrusts “the safety and health of the people” to the politically accountable officials of the States “to guard and protect.” When those officials “undertake to act in areas fraught with medical and scientiﬁc uncertainties,” their latitude “must be especially broad.” Where those broad limits are not exceeded, they should not be subject to secondguessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. South Bay United Pentecostal Church v. Newsom, 590 U.S. —, 2020 WL 2813056, at
*1-2 (May 29, 2020) (Roberts, C.J., concurring) (cleaned up).
“[A]bsent the most extraordinary circumstances, federal courts are not to
immerse themselves in the management of state prisons or substitute their judgment
for that of the trained penological authorities charged with the administration of such
facilities.” Taylor v. Freeman, 34 F.3d 266, 268 (4th Cir. 1994). Mandatory injunctive
relief of the type ordered here is only appropriate when a defendant abdicates
responsibility to address constitutional problems—a ﬁnding the district court never
made and which the record could not support. Id. at 269.
Like the district court, Plaintiffs do not address the inspection report—probably
because its ﬁnding that MDCR was doing its “best” to address the challenges of the
pandemic at Metro West conclusively undermines their case. No binding precedent
in this Circuit authorizes what the district court did here: enter a TRO, keep the TRO
in place without assessing Defendants’ compliance, and then supplement the TRO by
ordering Defendants to take actions (testing, masks, information sharing with criminal
justice system) that Defendants had already taken voluntarily, and many of which
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(masks and information sharing) they had taken before this lawsuit was ﬁled. While Plaintiffs may downplay the harm that comes from divesting elected representatives and local government officials of the authority to act during a pandemic, there is no basis to order injunctive relief against Defendants—whom the record shows are already committed to protecting Plaintiffs from COVID-19 and have taken substantial steps to do so—simply because Defendants’ wide-ranging remedial efforts failed to achieve social distancing perfection. The injunction works real and immediate harm on Defendants but provides only speculative beneﬁts to Plaintiffs. V. The Mandatory Injunction Violates the PLRA and Rule 65.
The district court entered a TRO, then a preliminary injunction, requiring Defendants to take numerous steps across a range of areas, including education, hygiene, sanitation, and medical care. R.25. at 2-5; R.100 at 49-52. Social distancing was but one of the aspects of detention about which the district court ordered mandatory injunctive relief. Plaintiffs do not dispute that the district court failed to analyze Defendants’ substantial compliance with the TRO. And given Plaintiffs’ apparent concession that the district court’s deliberate indifference ﬁnding was limited to social distancing, there is no basis for enjoining Defendants in any other area, making the preliminary injunction de facto overbroad.
With respect to social distancing, Plaintiffs argue the district court respected Defendants’ discretion in giving them leeway to propose additional social distancing measures. Answer Br. 55-67. But having already found that social distancing is impossible at current population levels, the district court set Defendants on a fool’s
23
miami-dade county attorney’s office (305) 375-5151

errand. A narrowly drawn injunction would have delineated factual ﬁndings supporting deliberate indifference as to any speciﬁc areas and ordered remedial relief. As Plaintiffs’ redeﬁnition of social distancing for purposes of appeal shows, the district court’s social distancing mandates are the very type of vague, overbroad, and inchoate standards that do not satisfy the PLRA or Rule 65.
CONCLUSION The district court’s preliminary injunction should be vacated, and this cause should be remanded with instructions to the district court to deny the motion for preliminary injunction with prejudice.

Dated: June 1, 2020.

Respectfully submitted,
Abigail Price-Williams
Miami-Dade County Attorney
By: /s/ Ezra S. Greenberg Ezra S. Greenberg, Fla. Bar No. 85018 ezrag@miamidade.gov Oren Rosenthal, Fla. Bar No. 86320 orosent@miamidade.gov Zach Vosseler, Fla. Bar No. 1008856 zach@miamidade.gov Bernard Pastor, Fla. Bar No. 46852 pastor@miamidade.gov Assistant County Attorneys
Stephen P. Clark Center 111 N.W. First Street, Suite 2810 Miami, Florida 33128 (305) 375-5151
Counsel for Appellants

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miami-dade county attorney’s office (305) 375-5151

CERTIFICATES OF COMPLIANCE 1. This document complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)(ii) because, excluding the parts of the document exempted by Fed. R. App. P. 32(f ), it contains 6,477 words. 2. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5)(A) and the type-style requirements of Fed. R. App. P. 32(a)(6) because it was prepared using Microsoft Word for Office 365 in size 14 Equity font.
/s/ Ezra S. Greenberg Ezra S. Greenberg Assistant County Attorney
CERTIFICATE OF SERVICE On June 1, 2020, I ﬁled this document electronically with the Court of Appeals via ECF and served a true and correct copy on counsel of record via ECF.
/s/ Ezra S. Greenberg Ezra S. Greenberg Assistant County Attorney
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miami-dade county attorney’s office (305) 375-5151

 
 Case No. 20-11622
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ANTHONY SWAIN, et al.,
Plaintiffs-Appellees, v.
DANIEL JUNIOR, Director of the Miami-Dade Corrections and Rehabilitation Department, et al.,
Defendants-Appellants. ______________________________
On Appeal from the United States District Court for the Southern District of Florida Case No. 1:20-cv-21457
BRIEF OF EIGHTH AMENDMENT SCHOLARS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES

Sumayya Saleh SOUTHERN POVERTY LAW CENTER 106 E. College Ave., #1010 Tallahassee, FL 32302 Tel.: 850-688-6770 sumayya.saleh@splcenter.org

Jaime A. Santos Andrew Kim GOODWIN PROCTER LLP 1900 N Street, N.W. Washington, D.C. 20036 Tel.: 202-346-4000 Fax: 202-346-4444 jsantos@goodwinlaw.com andrewkim@goodwinlaw.com

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit Rule 26.1-1, Amici Curiae Eighth Amendment Professors certify that the following persons and entities may have an interest in the outcome of this case:
1. Advancement Project, Counsel for Plaintiffs-Appellees 2. Barnet, Emily, Counsel for Plaintiffs-Appellees 3. Bernal, Peter, Plaintiff 4. Blanco, Alen, Plaintiff-Appellee 5. Buergel, Susanna M., Counsel for Amici Curiae Public Health and Human Rights Experts 6. Civil Rights Corps, Counsel for Plaintiffs-Appellees 7. Cohen, Robert L., Amicus Curiae (Public Health and Human Rights Experts) 8. Community Justice Project, Counsel for Plaintiffs-Appellees 9. Cruz, Bayardo, Plaintiff-Appellee 10. DLA Piper LLP (US), Counsel for Plaintiffs-Appellees 11. Dolovich, Sharon, Amicus Curiae (Eighth Amendment Scholars) 12. Dream Defenders, Counsel for Plaintiffs-Appellees 13. Giller, David, Counsel for Amici Curiae Public Health and Human Rights Experts
i

14. Ginsberg, Betsy, Amicus Curiae (Eighth Amendment Scholars) 15. Goodwin Procter LLP, Counsel for Amici Curiae Eighth Amendment Scholars 16. Goldenson, Joseph, Amicus Curiae (Public Health and Human Rights Experts) 17. Greenberg, Ezra S., Counsel for Defendants-Appellants 18. GST LLP, Counsel for Plaintiffs-Appellees 19. Harvey, Thomas B., Counsel for Plaintiffs-Appellees 20. Hill, Winifred, Plaintiff 21. Hochstadt, Jennifer L., Counsel for Defendants-Appellants 22. Horn, Martin, Amicus Curiae (Corrections Experts) 23. Hubbard, Katherine, Counsel for Plaintiffs-Appellees 24. Jagannath, Meena, Counsel for Plaintiffs-Appellees 25. Jefferis, Danielle C., Counsel for Amici Curiae Corrections Experts 26. Johnson, Darren W., Counsel for Amici Curiae Public Health and Human Rights Experts 27. Junior, Daniel, Defendant-Appellant 28. Karakatsanis, Alec, Counsel for Plaintiffs-Appellees 29. Kim, Andrew, Counsel for Amici Curiae Eighth Amendment Scholars
ii

30. Kimball-Stanley, David C., Counsel for Amici Curiae Public Health and Human Rights Experts 31. Littman, Aaron, Amicus Curiae (Eighth Amendment Scholars) 32. Martin, Steve, Amicus Curiae (Corrections Experts) 33. Martinez-Flores, Ronniel, Plaintiff-Appellee 34. Miami-Dade County, Defendant-Appellant 35. Miami-Dade County Attorney’s Office, Counsel for DefendantsAppellants 36. Morgan, Richard, Amicus Curiae (Corrections Experts) 37. Pacholke, Dan, Amicus Curiae (Corrections Experts) 38. Paul, Weiss, Rifkind, Wharton & Garrison LLP, Counsel for Amici Curiae Public Health and Human Rights Experts 39. Pastor, Bernard, Counsel for Defendant-Appellants 40. Pfaff, John, Amicus Curiae (Eighth Amendment Scholars) 41. Price-Williams, Abigail, Counsel for Defendant-Appellant 42. Ragsdale, Maya, Counsel for Plaintiffs-Appellees 43. Reinert, Alexander A., Amicus Curiae (Eighth Amendment Scholars) 44. Rodriguez-Taseff, Lida, Counsel for Plaintiffs-Appellees 45. Rosenthal, Oren, Counsel for Defendants-Appellants
iii

46. Saleh, Sumayya, Counsel for Amici Curiae Eighth Amendment Professors 47. Sanoja, Katherine Alena, Counsel for Plaintiffs-Appellees 48. Santos, Jaime Ann, Counsel for Amici Curiae Eighth Amendment Scholars 49. Schlanger, Margo, Amicus Curiae (Eighth Amendment Scholars) 50. Simson, Emma, Counsel for Plaintiffs-Appellees 51. Smith, R. Quinn, Counsel for Plaintiffs-Appellees 52. Southern Poverty Law Center, Counsel for Amici Curiae Eighth Amendment Scholars 53. Sparkman, Emmitt, Amicus Curiae (Corrections Experts) 54. Stanley, Phil, Amicus Curiae (Corrections Experts) 55. Swain, Anthony, Plaintiff-Appellee 56. Torres, Hon. Edwin G., United States Magistrate Judge 57. Twinem, Alexandria, Counsel for Plaintiffs-Appellees 58. University of Denver College of Law, Student Law Office/Civil Rights Clinic, Counsel for Amici Curiae Corrections Experts 59. Vail, Eldon, Amicus Curiae (Corrections Experts) 60. Viciana, Ana Angelica, Counsel for Defendants-Appellants 61. Volchok, Daniel S., Counsel for Plaintiffs-Appellees
iv

62. Vosseler, Zachary E., Counsel for Defendants-Appellants

63. Williams, Brie, Amicus Curiae (Public Health and Human Rights

Experts)

64. Williams, Hon. Kathleen M., United States District Judge

65. Willis, Deondre, Plaintiff-Appellee

66. Wilmer Cutler Pickering Hale and Dorr LLP, Counsel for Plaintiffs-

Appellees

67. Yang, Tiffany, Counsel for Plaintiffs-Appellees

68. Zaron, Erica, Counsel for Defendants-Appellants

Amici curiae Eighth Amendment Scholars are individual persons.

Dated: May 29, 2020

/s/ Andrew Kim Andrew Kim

v

TABLE OF CONTENTS
PAGE INTEREST OF THE AMICI CURIAE .....................................................................1 STATEMENT OF ISSUES .......................................................................................3 SUMMARY OF ARGUMENT .................................................................................4 ARGUMENT .............................................................................................................7
I. The focus of the deliberate indifference inquiry is on Defendants’ decision not to take a number of available measures to mitigate the danger posed by COVID-19, not whether state law authorizes them to take one such measure. ..............7
II. Whether a prison official’s ability to take the steps necessary to address harmful conditions is limited by the legal or fiscal constraints of state law is not relevant to the deliberate indifference inquiry, at least in a case for prospective relief. .............12
III. Release could be an appropriate remedy for correcting the constitutional violation resulting from Defendants’ deliberate indifference, even if they lack the authority to release absent a federal court order. ..............................................................................17
CONCLUSION ........................................................................................................21 CERTIFICATE OF COMPLIANCE.......................................................................22
vi

TABLE OF AUTHORITIES
PAGE(S)
CASES
Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415 (5th Cir. 2017) ................................................................................3
Bell v. Wolfish, 441 U.S. 520 (1979)..............................................................................................3
Brown v. Plata, 563 U.S. 493 (2011)................................................................................18, 19, 20
Bruno v. City of Schenectady, 727 F. App’x 717 (2d Cir. 2018) ..........................................................................3
Bryan v. Jones, 530 F.2d 1210 (5th Cir. 1976) ......................................................................13, 14
Cameron v. Bouchard, --- F. Supp. 3d ----, 2020 WL 2569868 (E.D. Mich. May 21, 2020) .................19
Castillo v. Cameron Cty., Tex., 238 F.3d 339 (5th Cir. 2001) ..............................................................................16
Castro v. Cty. of L.A., 833 F.3d 1060 (9th Cir. 2016) (en banc) ..............................................................3
Colbruno v. Kessler, 928 F.3d 1155 (10th Cir. 2019) ............................................................................3
Costello v. Wainwright, 525 F.2d 1239 (5th Cir. 1976) ............................................................................15
Dang ex rel. Dang v. Sheriff, Seminole Cty., Fla., 871 F.3d 1272 (11th Cir. 2017) ............................................................................3
Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017) ...................................................................................3
Farmer v. Brennan, 511 U.S. 825 (1994)..............................................................................................7 vii

Gordon v. Cty. of Orange, 888 F.3d 1118 (9th Cir. 2018) ..............................................................................3
Hale v. Tallapoosa Cty., 50 F.3d 1579 (11th Cir. 1995) ........................................................................7, 10
Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991) ..........................................................................12
Johnson v. Bessemer, Ala., 741 F. App’x 694 (11th Cir. 2018) .......................................................................3
Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015)..........................................................................................3
LaMarca v. Turner, 995 F.2d 1526 (11th Cir. 1993) ...................................................................passim
Miranda v. Cty. of Lake, 900 F.3d 335 (7th Cir. 2018) ................................................................................3
Moore v. Morgan, 922 F.2d 1553 (11th Cir. 1991) ..........................................................................15
Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc) ......................................................14, 15
Richmond v. Huq, 885 F.3d 928 (6th Cir. 2018) ................................................................................3
Smith v. Sullivan, 611 F.2d 1039 (5th Cir. 1980) ......................................................................15, 18
Whitley v. Albers, 475 U.S. 312 (1986)..............................................................................................3
Whitney v. City of St. Louis, 887 F.3d 857 (8th Cir. 2018) ................................................................................3
Williams v. Bennett, 689 F.2d 1370 (11th Cir. 1982) ..............................................................12, 14, 15
viii

Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974) ............................................................................15
STATUTES AND RULES 18 U.S.C. § 3626......................................................................................................18 18 U.S.C. § 3626(a)(1)(B) .......................................................................................16 18 U.S.C. § 3626(a)(3)(E)(ii)...................................................................................19 Fla. Stat. § 252.46 ....................................................................................................12 Fla. Stat. § 951.21(3)................................................................................................17 Fla. Stat. § 951.23(7)................................................................................................11 Fla. R. Crim. Proc. 3.125(c).....................................................................................11
ix

INTEREST OF THE AMICI CURIAE1 Amici are law professors who teach courses on federal and state constitutional and statutory law as it relates to prisons and jails. (Affiliations are listed only for purposes of identification.) Their academic work includes extensive study of the equitable powers of federal courts in tailoring relief for people experiencing unconstitutional conditions of confinement. Amici submit this brief because Defendants’ arguments on appeal mark a significant departure from controlling caselaw and would undermine the basic principles governing application of the Eighth Amendment. If adopted by this Court, Defendants’ construction of the subjective deliberate indifference standard will have sweeping implications in a broad range of Eighth Amendment cases where this Court and courts within this Circuit have accorded relief. Amici therefore have an interest in urging this Court not to decide this case on the question framed by Defendants—a question that is, for the reasons provided below, not critical to the resolution of this appeal. This brief draws on amici’s research and expertise in these areas to analyze this issue for the benefit of the Court. Sharon Dolovich is a Professor of Law at UCLA School of Law, and Director
1 No counsel for a party authored this brief in whole or in part. No counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici curiae or their counsel made a monetary contribution to the brief’s preparation or submission.
1

of the UCLA Prison Law & Policy Program. She teaches courses on criminal law, the constitutional law of prisons, and other post-conviction topics, and her scholarship focuses on the law, policy, and theory of prisons and punishment.
Betsy Ginsberg is a Clinical Professor of Law and Director of the Civil Rights Clinic at the Benjamin N. Cardozo School of Law, where she teaches, litigates, and conducts research about the rights of incarcerated people.
Aaron Littman is a Binder Clinical Teaching Fellow at UCLA School of Law, where he directs a prisoners’ rights clinic. His research focuses on the constitutional rights of incarcerated people, and on the state statutory systems that govern the management of prisons and jails.
John Pfaff is a Professor of Law at the Fordham University School of Law who focuses on criminal law, sentencing law, and law and economics.
Alexander A. Reinert is the Max Freund Professor of Litigation and Advocacy and the Director of the Center for Rights and Justice at Cardozo Law School. Professor Reinert teaches and conducts research in the areas of civil procedure, constitutional law, criminal law, federal courts, and the rights of incarcerated people.
Margo Schlanger is the Wade H. and Dores M. McCree Collegiate Professor of Law at the University of Michigan Law School. Her research and writing focus on prisoners’ constitutional and statutory rights, and she is the coauthor of the Law
2

of Incarceration: Cases and Materials (West 2020).
STATEMENT OF ISSUES
1. Did the district court correctly determine that Plaintiffs had
demonstrated a likelihood of showing that Defendants were deliberately indifferent
by failing to take measures available them to achieve social distancing, which is a
“critical step” in mitigating the unconstitutional conditions at Metro West?2
2 This Court has previously declined to resolve the question whether, under Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), liability for the unconstitutional treatment of pretrial detainees continues to require a showing of subjective deliberate indifference. Dang ex rel. Dang v. Sheriff, Seminole Cty., Fla., 871 F.3d 1272, 1279 n.2 (11th Cir. 2017) (“We cannot and need not reach this question.”); Johnson v. Bessemer, Ala., 741 F. App’x 694, 699 (11th Cir. 2018) (observing that Dang “refus[ed] to reach the issue of whether Kingsley requires a pretrial detainee to satisfy only the objective component in a deliberate indifference claim”). In a case like this, involving exposure-to-harm claims by pretrial detainees, the view of amici is that Kingsley requires an objective standard—that is, liability for intentional acts that create unreasonable conditions of confinement, without a showing of subjective deliberate indifference. See Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018); Gordon v. Cty. of Orange, 888 F.3d 1118, 1120, 1122-25 (9th Cir. 2018); Castro v. Cty. of L.A., 833 F.3d 1060, 1069-70 (9th Cir. 2016) (en banc); Bruno v. City of Schenectady, 727 F. App’x 717, 720 (2d Cir. 2018); Darnell v. Pineiro, 849 F.3d 17, 21 (2d Cir. 2017); see also Colbruno v. Kessler, 928 F.3d 1155, 1161 (10th Cir. 2019); Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th Cir. 2018), Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 424-25 (5th Cir. 2017) (Graves., J., specially concurring in part); but see Whitney v. City of St. Louis, 887 F.3d 857, 860 n.4 (8th Cir. 2018); Alderson, 848 F.3d at 420 (majority opinion). While Kingsley is an excessive force case, its analysis rested on Bell v. Wolfish, 441 U.S. 520 (1979), a conditions case. And its reasoning—that unreasonable results of intentional acts constitute punishment, which may not be inflicted upon pretrial detainees—applies equally to conditions and excessive force. Indeed, it would be bizarre if the liability standard for pretrial detention was lower for excessive force allegations than for unconstitutional conditions allegations. For all the reasons explained in Whitley v. Albers, 475 U.S. 312 (1986), one would expect the opposite to be true, if anything.
3

SUMMARY OF ARGUMENT COVID-19 is an extraordinary contagion that has created an unprecedented risk to health and safety in our nation’s jails and prisons. Because COVID-19 is a disease that thrives in crowded conditions, these facilities—especially overcrowded facilities like Metro West—have become fertile breeding grounds for the disease. And unlike ordinary citizens, there is little that incarcerated individuals can do to ameliorate the risk—they are required to be at close quarters with others at nearly all times. The District Court recognized that the risk of harm posed by the pandemic, exacerbated by the population density of Metro West, deprived individuals detained at Metro West of safe conditions of confinement. Recognizing that Metro West’s officials had taken some steps to address the COVID-19 pandemic generally, the District Court nevertheless determined that it was more likely than not that those officials were deliberately indifferent, as there were important and obvious steps they did not take to ameliorate the harm posed by the COVID-19 virus at Metro
If excessive force is judged using an objective standard, a similar approach to conditions cases follows. Under the correct, objective liability standard postKingsley, the deliberate indifference approach urged by Appellants and the arguments credited by the motions panel were entirely incorrect. But as we explain here, even under the subjective deliberate indifference standard (which would apply if all of the plaintiffs were post-conviction prisoners), the District Court’s order should be affirmed.
4

West. R. 100, at 37. It instructed Defendants to take the steps necessary to allow the people in their custody to engage in social distancing and prescribed a number of measures to mitigate the risk of infection from COVID-19 at the facility. R. 100, at 49-52. The court did not, however, order anyone’s release, or suggest that release was the only way to remedy the unconstitutional conditions at the jail.
Defendants hope to overturn the District Court’s ruling by mischaracterizing the District Court’s holding with respect to the subjective component of Plaintiffs’ claim. They argue that jail officials could not have been deliberately indifferent because, they contend, they took what measures they had available to them. In their words, this made them “deliberately proactive,” not deliberately indifferent, Appellants’ Br. 14, and thus they should not be held responsible for failing to take measures beyond their authority and control. In making this latter argument, they contend that the District Court concluded “social distancing was not possible absent reductions in the jail population.” Id. at 33. Because Defendants are unable to effect those reductions on their own, they reason their “inability to take a positive action” cannot amount to deliberate indifference. Id.
1. At the outset, Defendants’ arguments mischaracterize the District Court’s holding. The court determined that the absence of social distancing contributed to the unconstitutional conditions of confinement, and that Defendants’ failure to ensure, or even allow, social distancing was evidence of their deliberate
5

indifference. While releasing part of Metro West’s population would certainly help in stemming the spread of the COVID-19 virus, release was not the only means of mitigating the harmful conditions alleged by Plaintiffs. The District Court did not hold that Defendants were deliberately indifferent because they failed to release individuals from custody, but rather because they failed to take a number of steps well within their capacity and control regarding the proximity in which individuals at Metro West are confined.
2. Defendants’ arguments are also on the wrong legal footing: even if they were correct that effective measures were outside of their authority (or budget), circuit precedent makes clear that this is no defense in a case for prospective relief. Otherwise, state and local governments could evade their constitutional obligation to provide minimally acceptable conditions of confinement by enacting laws that preclude their officials from taking essential remedial measures and then throwing up their proverbial hands.
3. The deliberate indifference standard proposed by Defendants would foreclose the ability of incarcerated individuals to obtain equitable relief from federal courts in the most dire of circumstances. In the uncommon case where releasing individuals from custody is truly the only means of ameliorating harmful conditions of confinement and curing a constitutional violation, such that a federal court finds it appropriate to enter a release order, prison officials will generally lack
6

the authority under state law to release individuals absent that order. In those circumstances, Defendants reason, prison officials cannot be deliberately indifferent because they are unable to take the “positive action” necessary to cure the unconstitutional harm. Therefore, they contend, there is no Eighth Amendment violation. Even with the statutory strictures placed upon a district court’s power to accord equitable relief, such a blinkered view of the Eighth Amendment is unreasonable and unsupported by caselaw.
ARGUMENT I. The focus of the deliberate indifference inquiry is on Defendants’
decision not to take a number of available measures to mitigate the danger posed by COVID-19, not whether state law authorizes them to take one such measure. “[A] prison official violates the Eighth Amendment” when those in his custody are “incarcerated under conditions posing a substantial risk of serious harm,” and that official has a “sufficiently culpable state of mind,” i.e., he is deliberately indifferent about that harm. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citation omitted). “To be deliberately indifferent, a prison official must knowingly or recklessly disregard an inmate’s basic needs so that knowledge can be inferred.” LaMarca v. Turner, 995 F.2d 1526, 1535 (11th Cir. 1993). When “knowledge of the infirm conditions” is combined with an official’s “knowing[] or reckless[]” decision to “decline[] to take actions that would have improved the conditions,” a prison official is deliberately indifferent. Id. at 1537; accord Hale v.
7

Tallapoosa Cty., 50 F.3d 1579, 1583 (11th Cir. 1995). The inquiry is ultimately whether prison officials “could have, but did not, take steps to minimize” the dangerous, unconstitutional conditions of confinement. LaMarca, 995 F.2d at 1537.
Defendants argue that the district court erred by faulting them for failing to take what they describe as an “impossible” step. The district court determined that social distancing was necessary to address the harm posed by COVID-19. According to Defendants, the only way to permit social distancing is to reduce the population of people incarcerated at Metro West. See Appellants’ Br. 33. Defendants go on to argue that the only way to do this is to release people from custody, a measure they claim they cannot take. Id. The motions panel of this Court also focused on this characterization of the District Court’s opinion in granting a stay of the District Court’s preliminary injunction order. Stay Order 10. Defendants contend that the fact that they have taken some positive action, and the impossibility of other meaningful positive action, means they cannot be found to be deliberately indifferent. Appellants’ Br. 33.
1. Every aspect of that argument is wrong. The District Court never concluded that “Plaintiffs met their burden simply because social distancing could not be achieved ‘absent additional reduction in Metro West’s population or some other measure to achieve social distancing.’” Id. at 31-32. Rather, the District Court determined that the impact of COVID-19 was worsened by the absence of social
8

distancing, and Defendants failed to take adequate measures to mitigate the increased risk posed by Metro West’s population density—including measures to reduce that density. In other words, the absence of social distancing is part of the unconstitutional conditions of confinement, and the presence of it is part of the cure for the harm. R. 100, at 35 (“[T]he lack of social distancing . . . and the issues attendant to effectively implementing CDC standards present an immediate, ongoing risk of harm to Plaintiffs . . . .” (emphasis added)).
2. Defendants wrongly suggest that, because they have done some things to tackle the COVID-19 crisis, they have not been deliberately indifferent. Appellants’ Br. 26 (“MDCR officials have not been indifferent, let alone deliberately so. . . . MDCR implemented and updated numerous policies targeted at preventing the introduction and spread of COVID-19 within Metro West.”). Prison officials can be deliberately indifferent even if they take some action to mitigate harm. In LaMarca, for example, when a former prison superintendent faced allegations that he was deliberately indifferent to incidents of sexual assaults of incarcerated individuals, he pointed to his efforts to “improve[] [the] physical plant, modernize[] the prison’s infirmary, decrease[] staff overtime, increase[] the number of confinement cells, and . . . [improve the] document[ing of] incidents at [the prison] (an effort necessary to proper management and safety).” LaMarca, 995 F.2d at 1537 n.22. This Court concluded that the superintendent could have nevertheless
9

“recklessly disregarded the necessary means to protect inmate safety.” Id. at 1538. Similarly, when the sheriff in Hale was accused of being deliberately indifferent to violence exacerbated by overcrowding, the sheriff responded that he was making efforts to build “a new jail which, he contends, was the only way to reduce the risk of violence.” 50 F.3d at 1584. This Court explained that “such efforts would not necessarily absolve him or [his employing] County of liability.” Id. The Court noted that a jury could have found that, “despite any efforts he made toward construction of the new jail, [the sheriff] was deliberately indifferent by disregarding ‘alternative means’ or interim measures for reducing the risk of violence.” Id.
That is precisely the inquiry that the District Court conducted here. The court considered “whether ‘the conditions and procedures at Metro West to address COVID-19 show a deliberate indifference.’” R. 100, at 36. The court determined that “the measures Defendants have adopted” were not enough to mitigate the harm caused by the absence of “meaningful social distancing.” Id. at 37. It recited the conditions of which Defendants were aware, but failed to address in any meaningful way: the increased risk posed by close contacts at jail bunks, the telephones, the restroom, the showers, the infirmary, and in outdoor space. Id. at 38. Defendants’ measures did not even include measures available to reduce the situational risk posed by close contact in these densely populated settings, never mind the “critical step” of density reduction as necessary to allow incarcerated individuals to maintain social
10

distancing at all times. See id. at 37. Defendants had other measures available to prevent close contact and limit viral transmission, and failed to take those measures; this is what made them deliberately indifferent.
3. Even assuming that the District Court held that reducing the population density—as distinct from the population level—was the only way of accomplishing the social distancing necessary to reduce harm to those incarcerated at Metro West, Defendants are wrong in suggesting that such reduction is impossible, or that release from custody is the only way of effecting it. See Appellants’ Br. 33. There are several options at Defendants’ disposal. They can, for example, move part of the population of Metro West to other county facilities. Or they can create “reduced custody housing area[s]” to reduce the number of individuals in the general population—the “chief correctional officer,” Appellant Daniel Junior, is expressly empowered by state law to make that determination. See Fla. Stat. § 951.23(7). For those newly accused of misdemeanor offenses (who would add to Metro West’s population), the County’s booking officers can issue notices to appear, in lieu of placing them at Metro West for misdemeanor offenses. Fla. R. Crim. Proc. 3.125(c). And given the ongoing state of emergency in the State of Florida, the County can exercise the emergency plenary powers accorded to it as a political subdivision under Florida law to reduce the density at Metro West, either by expanding capacity (reallocating or constructing other facilities to be used for temporary housing) or by
11

other measures. Fla. Stat. § 252.46. These are steps that officials “could have, but did not, take [] to minimize” the risk posed by the spread of COVID-19 amidst the dense population at Metro West, making them deliberately indifferent to that risk. See LaMarca, 995 F.2d at 1537. II. Whether a prison official’s ability to take the steps necessary to address
harmful conditions is limited by the legal or fiscal constraints of state law is not relevant to the deliberate indifference inquiry, at least in a case for prospective relief. Like most health and safety measures, taking meaningful steps to reduce population density at Metro West will doubtless require coordination with other government officials and the expenditure of resources. But circuit precedent makes clear that Defendants can be deliberately indifferent even if they have not presently obtained that cooperation and those resources. This Court has held time and again that “Defendants clearly may not escape liability solely because of the legislature’s failure to appropriate requested funds.” Williams v. Bennett, 689 F.2d 1370, 1387-88 (11th Cir. 1982). That is true even if the legislature’s austerity is part of the reason the harmful conditions exist. See Harris v. Thigpen, 941 F.2d 1495, 1509 (11th Cir. 1991) (“We are aware that systemic deficiencies in medical care may be related to a lack of funds allocated to prisons by the statute legislature. Such a lack, however, will not excuse the failure of correctional systems to maintain a certain minimum level of medical service necessary to avoid the imposition of cruel and unusual punishment.”).
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Defendants assert they are not responsible for taking any actions beyond which they have already taken; they purport that any remaining measures are beyond their ability to command. In support of this, they cite Bryan v. Jones, 530 F.2d 1210 (5th Cir. 1976), which held that when “errors take place outside of [a prison official’s] realm of responsibility, he cannot be found liable because he has acted reasonably and in good faith.” Id. at 1215.
But the reliance on Bryan is misplaced for two reasons. First, Bryan does not stand for the proposition that the absence of express authority to fix a harmful condition means a prison official is absolved of deliberate indifference liability. When Bryan speaks of “errors” outside of a prison official’s “realm of responsibility,” it refers to actual mistakes made by someone else, not the absence of authority. In Bryan, a plaintiff sued the county sheriff, alleging that the sheriff had wrongfully detained him even after the district attorney had dropped the charges against the plaintiff. 530 F.2d at 1212. The plaintiff had been detained because of the district attorney’s clerical error: the plaintiff’s grand jury report had the correct name and indictment number, but listed the wrong warrant number. Id. As a result, when the charges were dropped and the plaintiff was to be released, the sheriff’s records incorrectly indicated that the plaintiff should remain detained on an active warrant, so the sheriff did not release the plaintiff. Id. The court held that the sheriff could not be held responsible; unlike a violation arising from the sheriff’s own
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negligent recordkeeping, the events that led to the plaintiff’s continued detention
were the result of someone else’s mistake, and outside of the sheriff’s “realm of
responsibility.” Id. at 1215.
Second, and perhaps more importantly, courts do not find relevant constraints
on an official’s ability to act where, as here, a plaintiff is seeking injunctive relief to
mitigate further harm from the official’s deliberate indifference.3 In Bryan, the
plaintiff sought damages, so the Fifth Circuit looked to what was within the sheriff’s
control. See id. at 1211. By contrast, when the relief sought is prospective, binding
precedent dictates that what a prison official is authorized to do is beside the point,
as the court can exercise its equitable powers to fashion a remedy that ensures those
being detained receive “adequate protection.” LaMarca, 995 F.2d at 1543.
This Court has applied this rule for decades: the Court reasoned in Williams,
even before LaMarca, that a prison official’s authority and ability to provide relief
3 Some courts have held that whether a prison official has the authority and ability to effect change plays a role when the claim is one for damages—because such a claim typically seeks to hold the prison official individually liable, this Court has reasoned that the choices the official could have made (along with the constraints placed on those choices) become relevant. See Williams, 689 F.2d at 1388. Because “damages” are “entirely retrospective,” as they “provide redress for something officials could have done but did not,” the courts that adopt this rule conclude that the “spectrum of choices that officials had at their disposal” factors into the deliberate-indifference analysis. Peralta, 744 F.3d at 1083. Amici express no opinion as to whether this is the proper approach in a case in which a plaintiff seeks damages, but the Court need not reach that question given that Plaintiffs here seek only injunctive relief.
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that addresses harmful, unconstitutional conditions is not relevant in a claim for prospective relief against a prison official in his official capacity. 689 F.2d at 1388; Moore v. Morgan, 922 F.2d 1553, 1557 & n.4 (11th Cir. 1991) (refusing to excuse a prison official’s failure to address harmful conditions on the basis of lack of funds); Wyatt v. Aderholt, 503 F.2d 1305, 1315 (5th Cir. 1974) (“Humane considerations and constitutional requirements are not, in this day, to be measured or limited by dollar considerations.” (citation omitted)); see also Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc) (“Lack of resources is not a defense to a claim for prospective relief because prison officials may be compelled to expand the pool of existing resources in order to remedy continuing Eighth Amendment violations.”).
This Court has also recognized that defendants cannot avoid liability by showing that addressing harmful conditions would require prison officials to violate state law. E.g., Smith v. Sullivan, 611 F.2d 1039, 1043 (5th Cir. 1980) (holding that there was “no merit” to defendants’ argument that “compliance with the order’s limitation on inmate population would require the sheriff to violate his statutory duty to accept prisoners”); Costello v. Wainwright, 525 F.2d 1239, 1243 (5th Cir. 1976).4
In the Prison Litigation Reform Act (PLRA), Congress, too, recognized that
4 The panel decision in Costello had been vacated by the en banc court at one point, 539 F.2d 547 (5th Cir. 1976) (en banc), but the original decision was restored after a reversal by the Supreme Court. 430 U.S. 325 (1977); 553 F.2d 506 (5th Cir. 1977) (en banc).
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federal courts would sometimes need to order—and authorized them to order—a
state or local official to “exceed his or her authority under State or local law” or
mandate a remedy that “otherwise violates State or local law.” 18 U.S.C. §
3626(a)(1)(B). It recognized that sometimes “Federal law [will] require[] such relief
to be ordered in violation of State or local law,” that such relief will be “necessary
to correct the violation of the Federal right,” and that “no other relief will correct the
violation of the Federal right.”5 Id.6
A contrary rule would allow states, local governments, and correctional
departments to circumvent the Eighth Amendment altogether by passing laws,
regulations, and policies stripping officials of authority to ensure safe, constitutional
prison conditions. A legislature that chose to appropriate no money toward
correctional health care or chose to forbid sheriffs from providing those in custody
with soap would enjoy legislative immunity, and individuals who sued their jailers
would be foreclosed from both establishing an Eighth Amendment violation and
5 To be clear, the District Court in this case need not have made findings under 18 U.S.C. § 3626(a)(1)(B), because, as discussed supra, it did not order Defendants to exceed their authority under State or local law. 6 Castillo v. Cameron Cty., Tex., 238 F.3d 339, 355-56 (5th Cir. 2001) (considering an order “permitting the Cameron County sheriff to decline to accept ‘blue warrant’ parole violators into the jail” in order to reduce the population of the jail, which the parties did not dispute “constitutes . . . a violation of state law,” and concluding that such an order entered following enactment of the PLRA would be permissible if it complied with 18 U.S.C. § 3626(a)(1)(B)).
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obtaining any recourse from the courts. III. Release could be an appropriate remedy for correcting the
constitutional violation resulting from Defendants’ deliberate indifference, even if they lack the authority to release absent a federal court order. Defendants are advocating for an impossible standard: they argue that the release of people from custody is the only way to mitigate the harm alleged by Plaintiffs, but because that relief can only be effectively provided by a federal court and not by prison officials who lack the power to release under state law, Plaintiffs cannot prove a deliberate indifference claim. Appellants’ Br. 32. At the outset, Defendants’ underlying premises are wrong. For example, there are other measures short of releasing individuals from custody that can address the harms associated with conditions of confinement at Metro West during the COVID19 pandemic, including some measures that would reduce population density. See supra Part I. There are, in fact, release-related alternatives that Defendants can employ: as one example, the County’s Board of Commissioners, on the recommendation of Appellant Junior, might effectively speed up the release of individuals who are serving their sentences at Metro West by authorizing additional gain-time for good conduct. See Fla. Stat. § 951.21(3). But even assuming that the District Court eventually concludes that the release is the only way to cure a constitutional violation in this case, there is nothing that prevents the District Court from providing such relief here. Despite Defendants’
17

assertions to the contrary, the law is clear that whether correctional officials have the power to engage in “prison depopulation . . . without a state criminal court order,” Appellants’ Br. 32, has no bearing on whether Plaintiffs have adequately established a constitutional claim for prospective relief. See supra Part II.
And there is no question that the District Court has the power to order such relief even in the absence of an authorizing state law. “Once invoked, the scope of a district court’s equitable powers . . . is broad, for breadth and flexibility are inherent in equitable remedies.” Brown v. Plata, 563 U.S. 493, 538 (2011) (citation and internal quotation marks omitted). When faced with cruel and unusual conditions of confinement, it is possible that, in the “equitable, remedial judgment[]” of the District Court, release becomes the only “efficacious remedy.” Id. at 541. Under such circumstances, there is no doubt that the District Court’s order is all that is needed to effect a remedy for the constitutional violation; whether state law authorizes such action is irrelevant. See Smith, 611 F.2d at 1044 (“[T]he federal courts have the power, and the duty, to make their intervention effective.”).
Of course, there are statutory constraints on a district court’s ability to order release from detention as an equitable remedy—namely, the PLRA. 18 U.S.C. § 3626. But even that statutory vise recognizes that a lack of authority to release detained individuals is not part of the Eighth Amendment analysis. The PLRA allows a district court to provide the remedy of release when the circumstances
18

compel it, which would make no sense if a lack of authority meant there was no Eighth Amendment violation to remedy. Plata, 563 U.S. at 511.7
Defendants seek to impose a standard that will strip incarcerated individuals of even that avenue of “last resort,” id. at 514—to seek the remedy of release when “no other relief will remedy” a constitutional violation, 18 U.S.C. § 3626(a)(3)(E)(ii). See Plata, 563 U.S. at 526, 527-29. Prison officials are generally not empowered by state law to release those in their custody at their discretion. So if release is truly the only means of correcting unconstitutional conditions of confinement, the ability to provide it is beyond the means of a prison official, and the prison official’s inability to provide it clears him of deliberate indifference and absolves him of the constitutional violation, see Appellants’ Br. 32, then an incarcerated individual will never be able to bring a claim for the relief of release, no matter how serious the constitutional violation or the underlying conditions that give rise to it.
That cannot be right. As the Supreme Court explained in Plata, “Congress limited the availability of limits on prison populations, but it did not forbid these
7 Even in cases like this one, it may well be that a federal court can order release without being bound by the strictures of the PLRA’s prisoner-release provision. E.g., Cameron v. Bouchard, --- F. Supp. 3d ----, 2020 WL 2569868, at *28 (E.D. Mich. May 21, 2020) (decision “to release particular inmates in response to COVID19 under § 1983 would not be a prison release order to which the requirement of § 3626 apply”).
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measures altogether.” 563 U.S. at 526. “Courts should presume that Congress was sensitive to the real-world problems faced by those who would remedy constitutional violations in the prisons and that Congress did not leave prisoners without a remedy for violations of their constitutional rights.” Id. Defendants’ understanding of deliberate indifference would, in these circumstances, “render population limits unavailable in practice,” which, in turn, “would raise serious constitutional concerns.” See id.
Here, the District Court has not yet considered release as a remedy, but it has already taken one of the preliminary steps necessary to order release under the PLRA’s prisoner-release provision: it has issued a preliminary injunction in an attempt to remedy the constitutional violation with “less intrusive relief.” Id. at 512. That injunction should be affirmed. If this Court were to vacate the injunction on the grounds offered by Defendants here, it would effectively foreclose any opportunity to seek judicial review of prison conditions when the only remedy for such conditions is limiting the population. The Supreme Court has made clear that the ability to call upon the equitable power of the federal courts to fix constitutional violations cannot be foreclosed completely in such a manner, and this Court should reject Defendants’ attempt to do so.
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CONCLUSION The District Court’s grant of a preliminary injunction should be affirmed.
Respectfully submitted,

Sumayya Saleh SOUTHERN POVERTY LAW CENTER 106 E. College Ave., #1010 Tallahassee, FL 32302 Tel.: 850-688-6770 sumayya.saleh@splcenter.org
May 29, 2020

/S/ Andrew Kim Jaime A. Santos Andrew Kim GOODWIN PROCTER LLP 1900 N Street, N.W. Washington, D.C. 20036 Tel.: 202-346-4000 Fax: 202-346-4444 jsantos@goodwinlaw.com andrewkim@goodwinlaw.com

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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitations of Federal Rule of Appellate Procedure 29(a)(5) because it contains 5,220 words, excluding the parts of the brief that are exempt under Federal Rule of Appellate Procedure 32(f). This document complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a), because this document has been prepared in a proportionally spaced typeface using 14-point Times New Roman font.

Date: May 29, 2020

/s/ Andrew Kim Andrew Kim

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CERTIFICATE OF SERVICE I hereby certify that on May 29, 2020, I electronically filed the foregoing with the Clerk of Court for the United States Court of Appeals for the Eleventh Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ Andrew Kim Andrew Kim
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 Case: 20-11622 Date Filed: 06/15/2020 Page: 1 of 55
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________ No. 20-11622 ________________________
D.C. Docket No. 1:20-cv-21457-KMW
ANTHONY SWAIN, ALEN BLANCO, BAYARDO CRUZ, RONNIEL FLORES, WINFRED HILL, et al.,
Plaintiffs - Appellees, versus DANIEL JUNIOR, MIAMI-DADE COUNTY, FLORIDA,
Defendants - Appellants. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________
(June 15, 2020)

Case: 20-11622 Date Filed: 06/15/2020 Page: 2 of 55
Before MARTIN and NEWSOM, Circuit Judges, and WATKINS,* District Judge. NEWSOM, Circuit Judge:
It would be a colossal understatement to say that the COVID-19 pandemic has had far-reaching effects. It has changed everything from the way that friends and families interact to the way that businesses and schools operate to the way that courts hear and decide cases. The virus, though, poses particularly acute challenges for the administration of the country’s jails and prisons. Because incarcerated inmates are necessarily confined in close quarters, a contagious virus represents a grave health risk to them—and graver still to those who have underlying conditions that render them medically vulnerable. And for their part, prison officials are faced with the unenviable (and often thankless) task of maintaining institutional order and security while simultaneously taking proper care of the individuals in their custody.
Our plaintiffs here—a group of medically vulnerable inmates—challenged the conditions of their confinement at Miami’s Metro West Detention Center. In particular, they assert that Miami-Dade County and Daniel Junior, the Director of the Miami-Dade Corrections and Rehabilitations Department, have inadequately responded to the COVID-19 outbreak and thereby violated their constitutional
* Honorable W. Keith Watkins, United States District Judge for the Middle District of Alabama, sitting by designation.
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rights. Holding that the plaintiffs were likely to succeed on the merits of their claim and would suffer irreparable injury in the absence of immediate relief, the United States District Court for the Southern District of Florida enjoined the county and Junior to take a number of precautionary measures to halt the virus’ spread and ordered them to file regular reports regarding the virus’ status.
A motions panel of this Court stayed the injunction pending resolution of the defendants’ appeal. After considering the merits, and with the benefit of outstanding written briefs and oral arguments, we now conclude that the district court erred in issuing the injunction.1 Accordingly, we vacate the injunction and remand the case to the district court.
1 For good reason, we have expedited the resolution of this case and the publication of this opinion. The district court issued its order on April 29, 2020, granting a preliminary injunction “for a period of 45 days.” A motions panel of this Court stayed the injunction on May 5, promulgated a condensed briefing schedule, and directed the Clerk to expedite the appeal for merits disposition and to schedule oral argument before the first available argument panel. See Swain v. Junior, 958 F.3d 1081, 1092 (11th Cir. 2020). Immediately after oral argument on June 9, we asked the parties to address (1) whether this appeal would become moot on June 15, the Monday following the expiration of the 45-day time period on Saturday, June 13, see Fed. R. Civ. P. 6(a), and (2) whether the motions panel’s stay order tolled the injunction’s 45-day period. The parties responded (in less than 24 hours) with very capable supplemental briefs that, perhaps not surprisingly, reached diametrically opposite conclusions. In light of the uncertainties surrounding the mootness issue—and because the parties, who have fully and skillfully briefed and argued the case, are entitled to a decision on the merits—we deemed it prudent to issue this opinion before the injunction was set to expire.
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I A This litigation began on April 5, 2020, when plaintiffs Anthony Swain, Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Deondre Willis, and Peter Bernal—medically vulnerable pretrial detainees at Metro West Detention Center in Miami, Florida—filed a class-action complaint against Miami-Dade County and Daniel Junior in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Center.2 They sought to represent themselves, a class of “all current and future persons detained at Metro West during the . . . pandemic,” and a subclass of medically vulnerable detainees. The plaintiffs asked for declaratory and injunctive relief under 42 U.S.C. § 1983, alleging that the defendants had violated (and were continuing to violate) the Eighth and Fourteenth Amendments by acting with “deliberate indifference” to the serious risk posed by COVID-19. In particular, the plaintiffs asserted that “Metro West has neither the capacity nor the ability to comply with public health guidelines to prevent an outbreak of COVID19 and cannot provide for” their safety. More particularly still, the plaintiffs claimed that the defendants didn’t “give [them] the ability to practice safe social distancing” and that “conditions force[d] them to sit, stand, walk, eat, and sleep
2 Hill and Bernal have both been released from custody. Unfortunately, the plaintiffs learned during the pendency of this appeal that one of the putative class members, Charles Hobbs, had died from COVID-related complications.
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Case: 20-11622 Date Filed: 06/15/2020 Page: 5 of 55
within six feet of another person,” and, furthermore, that the defendants weren’t providing adequate cleaning supplies or “free hygiene or personal sanitation supplies.” On behalf of the medically vulnerable subclass, the plaintiffs separately petitioned for a writ of habeas corpus under 28 U.S.C. § 2241, seeking immediate release. Along with their complaint, the plaintiffs also filed an emergency motion for a temporary restraining order and a preliminary injunction, as well as a motion to certify the class.
On April 7, the district court entered a 14-day TRO, based largely on the CDC’s guidance for correctional facilities. See Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (March 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctionaldetention.pdf [hereinafter CDC Guidance]. The guidance provided suggestions regarding cleaning, hygiene, and disease-prevention practices, and also recommended that detention facilities “[i]mplement social distancing strategies to increase the physical space between incarcerated/detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms).” Id. at 9–11 (emphasis omitted). Among other precautions, the district court’s TRO required the defendants to provide for six-foot spacing between inmates “[t]o the maximum extent possible” and to ensure that each inmate received soap and cleaning
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supplies. The TRO further ordered the defendants to file a notice describing the
measures that Metro West had employed and identifying medically vulnerable
individuals.
The defendants’ notice of compliance, filed two days later, advised the
district court that they had, among other things:
• provided inmates access to cleaning supplies; • provided personal hygiene supplies, including liquid soap and paper
towels; • acquired “industrial grade fogging type sanitization equipment to sanitize
housing units when inmates are in recreation (three times per week)”; • issued masks to all inmates and employees; • cancelled inmate visitation; • implemented mandatory wellness screenings for all staff; • formalized a “new intake quarantine protocol”; • made efforts “to successfully decrease overall inmate population and
allow for increased social distancing”; • increased awareness about social distancing and instructed staff “to
continually walk throughout [Metro West] to enforce social distancing by officers and inmates”; • modified the “sick call process” in order “to allow for an expedited review” of inmates with COVID-19 symptoms; • posted notices “in English, Creole and Spanish that encourage social distancing and proper hygiene” and provided other information about the virus; and • instituted a “COVID-19 Incident Command Center and a Response Line” for tracking the virus’ impact on inmates and staff.
The defendants’ notice indicated that they had taken many of these measures even
before the plaintiffs had filed suit.
On April 14, the district court extended the TRO and commissioned two
independent experts to inspect Metro West, evaluate the defendants’ compliance
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with the TRO, and submit a report with their findings. The experts’ report—which was filed seven days later—explained that Metro West’s administrators and employees were “doing their best balancing social distancing and regulation applicable to the facility” and that they “should be commended for their commitment to protect the staff and the inmates.” Expert Report at 2. In particular, the report observed that Metro West was conducting staff screenings, that the facility appeared clean, that cleaning supplies were available, that inmates and staff had masks, and that inmates were “staggered and appropriately distanced when going to medical.” Id. at 2–3. The report also stated, however, that while “[t]he bunks are staggered with head to foot configuration,” there wasn’t six feet between them, that inmates congregated around tables and televisions, that “[t]he areas with the telephones do not allow for social distancing,” and that most of the units “were too overcrowded to allow for adequate social distancing.” Id. at 2. The report recommended testing, increased screening of inmates, and “an urgent decrease in the population density” because “the high census of Metro West . . . in addition to the dormitory style housing units, makes it impossible to follow CDC guidance for social distancing measures.” Id. at 3.
B In the run-up to the preliminary-injunction hearing, both parties submitted additional evidence. For their part, the defendants notified the court that they had
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Case: 20-11622 Date Filed: 06/15/2020 Page: 8 of 55
purchased and installed ionizers to purify the air and body-heat cameras to measure inmates’ temperatures, and had begun testing even asymptomatic inmates. The defendants also explained that through their collaboration with state criminaljustice officials, nearly 900 inmates had been released—reducing Metro West’s population to less than 70% of its capacity—and that they would continue working to reduce the inmate population. The defendants further stated that “[v]irtually all of the measures taken after [the lawsuit was filed] would have been taken, regardless of the allegations made in th[e] case” and that “[t]he only aspect of the TRO that had not been in place prior to its entry was the Court-ordered use of paper towels and liquid soap”—which, the defendants had earlier clarified, had been supplied to all housing units by the time they filed their notice of compliance on April 9. The defendants also represented that they would continue to take necessary precautions “even in the absence of a court order.”
The plaintiffs’ additional inmate declarations acknowledged some improvements in Metro West’s conditions—for instance, they noted that jail staff had put tape on the floor in certain areas to encourage social distancing, made intercom announcements to remind inmates to practice social distancing and to wash their hands, checked inmates’ temperatures twice a day, and ensured that units contained liquid soap and paper towels. Still, though, the inmates continued to stress what they perceived to be a lack of adequate distancing. They stated that
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it was difficult or impossible to distance from other inmates in certain spaces or during certain times of the day—e.g., while using the bathrooms, showers, and telephones, when queuing to receive medication or go to the clinic, while in line to receive food at mealtime and while eating, during pre-recreation pat-downs, and during thrice-daily head counts, when inmates stand shoulder-to-shoulder with their bunkmates and only two to three feet apart from others. Some of the inmate declarations also indicated that the social-distancing measures that Metro West had promulgated weren’t being uniformly enforced. For example, one stated that while jail administrators had placed tape on the floor to indicate where inmates should stand while in line to receive medication, “mostly people still line up very close together.” For additional support, the plaintiffs presented declarations from four medical experts, who opined that social distancing and further population reductions were necessary.
On April 29, after holding a two-day hearing, the district court issued a preliminary injunction on the plaintiffs’ § 1983 claim. (The court separately denied the plaintiffs relief on their § 2241 petition, and thus refused to order the release of any inmates. That decision isn’t before us.) The court noted that “[i]t is clear that there remain several factual disputes regarding the extent to which Defendants’ stated policies to protect inmates and staff from COVID-19 are being implemented and enforced.” Dist. Ct. Order at 33–34. But it emphasized that it
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Case: 20-11622 Date Filed: 06/15/2020 Page: 10 of 55
was “unrebutted” that “the rate of inmate infections has increased dramatically” and that undisputed “medical evidence and testimony from numerous doctors” showed “that other measures—absent social distancing—are not alone sufficient to stop the spread of the virus.” Id. at 34. “Thus,” the court held, “even if [it] were to credit all of Defendants’ evidence at this stage and discount the factual disputes about the implementation of Defendants’ policies and procedures, Plaintiffs have nonetheless made a clear showing as to each of the four factors required for injunctive relief on their Eighth Amendment claim.” Id. at 35. The court reasoned that “[b]ecause [the plaintiffs] have demonstrated that the lack of social distancing—which has not been and cannot be achieved absent an additional reduction in Metro West’s population or some other measure to achieve meaningful social distancing—and the issues attendant to effectively implementing CDC standards present an immediate, ongoing risk of harm to Plaintiffs, they have met their burden.” Id.
When considering the plaintiffs’ likelihood of success on their constitutional claim, in particular, the district court said much the same thing. Specifically, it held that “even considering the measures Defendants have adopted—and setting aside the numerous factual disputes as to the consistency and efficacy of those measures—the record nonetheless can be seen to demonstrate deliberate indifference to a serious risk of harm to Plaintiffs.” Id. at 37. First, the court stated
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Case: 20-11622 Date Filed: 06/15/2020 Page: 11 of 55
that the “Defendants’ contention that the actions they have taken to date are sufficient is belied by the exponential rate of infection since this case commenced”—emphasizing that whereas no inmates had tested positive at the time the complaint was filed, 163 inmates had tested positive within the ensuing three weeks. Id. Second, the court explained that “the evidence adduced in the case shows that inmates at Metro West are not able to achieve meaningful social distancing, and that the experts agree social distancing is a critical step in preventing or flattening the rate of contagion.” Id. For support, the court referenced inmate declarations “indicat[ing] that social distancing is either not possible . . . or is not uniformly enforced.” Id. at 37–38. The court then concluded: “Thus, Plaintiffs have met both the subjective and objective components of the Eighth Amendment’s deliberate indifference analysis.” Id. at 38.
The district court held that the remaining preliminary-injunction factors favored relief, as well. It concluded—albeit in a single sentence—that the plaintiffs would suffer irreparable injury absent immediate relief because of the danger posed by the virus’ spread. Id. at 41. The balance of the harms also weighed in the plaintiffs’ favor, the court reasoned, because the defendants hadn’t shown that the administrative burden of the injunction overcame the threat posed by the virus: Because the defendants “repeatedly stated they were poised to take
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Case: 20-11622 Date Filed: 06/15/2020 Page: 12 of 55
the measures in the TRO before its entry and have now implemented those
measures and more,” the court explained that the injunction would result in “no
appreciable impact on them.” Id. at 43. Finally, the court held that injunctive
relief would advance the public interest by reducing the possibility of community
spread. Id.
The district court’s injunction required the defendants to take numerous
actions—many of which the court had already ordered in the TRO—including that
the defendants, “[t]o the maximum extent possible considering [Metro West’s]
current population level, provide and enforce adequate spacing of six feet or more
between people incarcerated at Metro West so that social distancing can be
accomplished.” Id. at 49–50. It also directed the defendants, among other things,
to communicate with inmates about COVID-19 and to ensure that all inmates have
access to testing, protective masks, cleaning and hygiene supplies, and adequate
medical care. Id. at 49–51. The injunction imposed reporting requirements, as
well, ordering the defendants to:
• file a notice with the court every three days detailing the number of staff and inmates quarantined or infected, and “continue to provide this information to their state criminal justice partners”;
• file a weekly report with the current population of Metro West; and • submit a proposal within seven days describing the steps that the
defendants “will undertake to ensure additional social distancing safeguards in terms of housing inmates and inmate activity (medical visits, telephones, etc.).”
Id. at 51–52.
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Case: 20-11622 Date Filed: 06/15/2020 Page: 13 of 55
The defendants immediately appealed the preliminary injunction and requested a stay, which we granted in a published order. Swain v. Junior, 958 F.3d 1081, 1092 (11th Cir. 2020). This is our review on the merits.
II “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). In order to obtain one, a party must establish four separate requirements—namely, that “(1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.” Jones v. Governor of Fla., 950 F.3d 795, 806 (11th Cir. 2020) (quotation omitted). We will consider each factor, although we will focus our attention where the district court did—on the likelihood that the plaintiffs will succeed on the merits of their constitutional claim.3
A The plaintiffs contend that the defendants have been “deliberately indifferent” to the serious risk that COVID-19 poses to them, in violation of the
3 “We review a district court’s grant of preliminary injunctive relief for abuse of discretion.” Jones v. Governor of Fla., 950 F.3d at 806. The court’s underlying legal conclusions are reviewed de novo, and its factual findings are reviewed for clear error. Id.
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Case: 20-11622 Date Filed: 06/15/2020 Page: 14 of 55
Fourteenth Amendment to the U.S. Constitution. Although the plaintiffs’ claim technically arises under the Fourteenth Amendment because they are pretrial detainees rather than convicted prisoners, it is “evaluated under the same standard as a prisoner’s claim of inadequate care under the Eighth Amendment.” Dang ex rel. Dang v. Sheriff, Seminole Cty. Fla., 871 F.3d 1272, 1279 (11th Cir. 2017). The Eighth Amendment—and therefore the Fourteenth also—is violated when a jailer “is deliberately indifferent to a substantial risk of serious harm to an inmate who suffers injury.” Lane v. Philbin, 835 F.3d 1302, 1307 (11th Cir. 2016).
To establish a deliberate-indifference claim, a plaintiff must make both an objective and a subjective showing. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Under the objective component, the plaintiff must demonstrate “a substantial risk of serious harm.” Id. Here, the defendants seem to agree—wisely, we think—that the risk of COVID-19 satisfies this requirement. Under the subjective component, the plaintiff must prove “the defendants’ deliberate indifference” to that risk of harm by making three sub-showings: “(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence.” Lane, 835 F.3d at 1308 (quotation omitted).4 Helpfully, the defendants seem not to
4 The Supreme Court’s decision in Kingsley v. Hendrickson, which held that pretrial detainees alleging excessive force need only show objective unreasonableness, doesn’t change our analysis here. 135 S. Ct. 2466, 2470 (2015). This case doesn’t arise in the excessive-force context, and we have otherwise continued to require detainees to prove subjective deliberate indifference. See Taylor v. Hughes, 920 F.3d 729, 733 (11th Cir. 2019) (explaining that a plaintiff suing on behalf of a deceased pretrial detainee had to prove deliberate indifference to the detainee’s serious
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dispute that they had “subjective knowledge” of the risk that the virus poses. The inquiry here thus hinges on whether the defendants “disregard[ed]” the risk “by conduct that is more than mere negligence,” id. (quotation omitted)—or more simply stated, whether they “recklessly disregard[ed] that risk,” Farmer, 511 U.S. at 836.
As applied in the prison context, the deliberate-indifference standard sets an appropriately high bar. A plaintiff must prove that the defendant acted with “a sufficiently culpable state of mind.” Id. at 834 (quotation omitted). Ordinary malpractice or simple negligence won’t do; instead, the plaintiff must show “subjective recklessness as used in the criminal law.” Id. at 839–40. Indeed, even where “prison officials . . . actually knew of a substantial risk to inmate health or safety,” they may nonetheless “be found free from liability if they responded reasonably to the risk”—and, importantly for present purposes, “even if the harm ultimately was not averted.” Id. at 844. This is so because “[a] prison official’s duty under the Eighth Amendment is to ensure reasonable safety, a standard that incorporates due regard for prison officials’ unenviable task of keeping dangerous men in safe custody under humane conditions.” Id. at 844–45 (quotations and
medical need); see also Dang, 871 F.3d at 1279 n.2 (stating that Kingsley didn’t abrogate our standard for considering claims of constitutionally deficient medical care brought by pretrial detainees because Kingsley “involved an excessive-force claim, not a claim of inadequate medical treatment due to deliberate indifference”).
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internal citations omitted); see also Marbury v. Warden, 936 F.3d 1227, 1233 (11th Cir. 2019) (“It is well settled that prison officials must take reasonable measures to guarantee the safety of the inmates . . . .” (quotation omitted)).
The district court here held that the plaintiffs were likely to succeed on the merits of their Eighth Amendment claim. In reviewing that determination, we consider two questions. First, and principally, we must evaluate whether the district court erred in concluding that the defendants acted with deliberate indifference. Second, and separately, we must assess whether the district court erred in refusing to address either the heightened standards for municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (1978), or the defendants’ contention that the plaintiffs failed to properly exhaust available administrative remedies under the Prison Litigation Reform Act.
1 a Any fair reading of the district court’s order demonstrates that it relied overwhelmingly—if not exclusively—on two considerations in concluding that the defendants acted with the required deliberate indifference: (1) the fact that COVID-19 was continuing to spread at Metro West and (2) the impossibility of achieving adequate social distancing. The order’s plain language tells the story. As an initial matter, when
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assessing whether the plaintiffs had met the four requirements to obtain injunctive relief, the district court acknowledged “that there remain several factual disputes regarding the extent to which Defendants’ stated policies . . . are being implemented and enforced,” but it insisted that two things were undeniable: (1) that “the rate of inmate infections [at Metro West] ha[d] increased dramatically” and (2) that “other measures—absent distancing—are not alone sufficient to stop the spread of the virus.” Dist. Ct. Order at 33–34. The court then held: “Thus, even if the Court were to credit all of Defendants’ evidence at this stage and discount the factual disputes about the implementation of Defendants’ policies and procedures, Plaintiffs have nonetheless made a clear showing as to each of the four factors required for injunctive relief on their Eighth Amendment claim.” Id. at 35 (emphasis added).
The district court made the basis of its decision even clearer when analyzing deliberate indifference specifically. There, the court again bracketed any factual disputes and yet still concluded the defendants had acted with deliberate indifference, holding that “even considering the measures Defendants have adopted—and setting aside the numerous factual disputes as to the consistency and efficacy of those measures—the record nonetheless can be seen to demonstrate deliberate indifference to a serious risk of harm to Plaintiffs.” Id. at 37. For support, the district court said two things in particular. First, it concluded that the
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“Defendants’ contention that the actions they have taken to date are sufficient is belied by the exponential rate of infection since this case commenced.” Id. Second, it explained that the evidence “show[ed] that inmates at Metro West are not able to achieve meaningful social distancing,” noting specifically that the inmates’ declarations asserted “that social distancing is either not possible . . . or is not uniformly enforced.” Id. at 37–38. From those two premises, the court concluded: “Thus, Plaintiffs have met both the subjective and objective components of the Eighth Amendment’s deliberate indifference analysis.” Id. at 38 (emphasis added).
Accordingly, even while the district court seemed to assume a state of affairs in which the defendants had taken numerous measures to combat the virus, it held that the defendants were nonetheless deliberately indifferent based on two considerations: (1) the increase in the rate of infections at Metro West and (2) the lack—and seeming impossibility—of meaningful social distancing at the facility. In so concluding, the district court erred. Neither the resultant harm of increasing infections nor the impossibility of achieving six-foot social distancing in a jail environment establishes that the defendants acted with “subjective recklessness as used in the criminal law.” Farmer, 511 U.S. at 839–40 (quotation omitted).
First, and most obviously, the district court erred in relying on the increased rate of infection. On this point, the Supreme Court’s decision in Farmer couldn’t
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be any clearer: “[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Id. at 844 (emphasis added). A resulting harm thus cannot alone establish a culpable state of mind. Cf. Wilson v. Seiter, 501 U.S. 294, 303 (1991) (stating that “the ‘wantonness’ of conduct” doesn’t “depend[] upon its effect upon the prisoner”); Wilson v. Williams, No. 203447, 2020 WL 3056217, at *10 (6th Cir. June 9, 2020) (rejecting the contention that “the [Bureau of Prisons] was deliberately indifferent to petitioners’ health and safety because [its] actions have been ineffective at preventing the spread of COVID-19”).
Second, and separately, the district court erred in concluding that the defendants’ inability to ensure adequate social distancing constituted deliberate indifference. The court stated no less than eight times in its order that adequate social distancing was “not possible” or “impossible.” See, e.g., Dist. Ct. Order at 7, 11, 12, 13, 16, 38. (The plaintiffs acknowledge the same at least six times in their brief. See, e.g., Br. of Appellees at 4, 8, 12, 15, 19, 54.) The courtcommissioned expert report likewise observed that Metro West’s population made it “impossible to follow CDC guidance for social distancing measures.” Expert Report at 3. And indeed, the district court noted that the inmates’ own declarations supported the conclusion that social distancing “is impossible to achieve given the
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current population at Metro West.” Dist. Ct. Order at 12. Failing to do the “impossible” doesn’t evince indifference, let alone deliberate indifference.
b So much for what the district court said. Now for what it didn’t say. As already explained, the fundamental question in any deliberate-indifference case is whether the defendants exhibited “a sufficiently culpable state of mind.” Farmer, 511 U.S. at 834 (quotation omitted). In evaluating that question, we must focus not on isolated failures—or impossibilities, as the case may be—but rather on the defendants’ entire course of conduct. And in assessing that course of conduct here, we must take the case as the district court left it—i.e., as one in which we “credit all of Defendants’ evidence,” “discount the factual disputes about the implementation of Defendants’ policies and procedures,” and “set[] aside the numerous factual disputes” about the various measures that the defendants claim to have adopted. Dist. Ct. Order at 35, 37. So framed, it seems to us quite unlikely that the plaintiffs can succeed on the merits of their constitutional claim. It bears repeating that deliberate indifference is not a constitutionalized version of common-law negligence. To the contrary, we (echoing the Supreme Court) have been at pains to emphasize that “the deliberate indifference standard . . . is far more onerous than normal tort-based standards of conduct sounding in negligence,” Goodman v. Kimbrough, 718 F.3d 1325, 1332 (11th Cir.
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2013), and is in fact akin to “subjective recklessness as used in the criminal law,” Farmer, 511 U.S. at 839–40; see also id. at 835 (“[D]eliberate indifference describes a state of mind more blameworthy than negligence.”). Were we to accept the district court’s determination that resulting harm, the failure to take impossible measures, or even the combination of both suffices to show a criminally (and thus constitutionally) reckless mental state, “the deliberate indifference standard would be silently metamorphosed into a font of tort law—a brand of negligence redux—which the Supreme Court has made abundantly clear it is not.” Goodman, 718 F.3d at 1334.
It is undisputed, as the district court said, that the defendants didn’t succeed in preventing the virus’ spread. It is also undisputed that they didn’t do the “impossible” by ensuring six-foot social distancing. But what did the defendants do? And can we say that their response was reckless? First, with respect to social distancing in particular, as the court-commissioned expert report summarized, the defendants “d[id] their best.” Expert Report at 2. In particular, the report observed that the defendants put “tape on the floor to encourage social distancing in lines,” that “bunks are staggered with head to foot configuration” in order to maximize the distance between faces during sleep, and that “[p]atients are staggered and appropriately distanced when going to medical.” Id. Importantly, we think, while the report noted some social-distancing violations, it concluded that Metro West’s
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administrators and employees were “doing their best balancing social distancing and regulation applicable to the facility,” and that they “should be commended for their commitment to protect the staff and the inmates.” Id. It’s worth noting, though not determinative, that the CDC’s guidance—on which the district court relied heavily—presupposes that some modification of its social-distancing recommendations will be necessary in institutional settings. The guidance states in bold-face type, on the very first page, that it “may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions.” CDC Guidance at 1. Regarding social distancing specifically, it says that while there should “ideally” be six feet between inmates, “[s]trategies will need to be tailored to the individual space in the facility and the needs of the population and staff,” and that “[n]ot all strategies will be feasible in all facilities.” Id. at 11. It therefore offers “strategies with varying levels of intensity,” such as—importantly here, because the defendants claimed to have done so—“[a]rrang[ing] bunks so that individuals sleep head to foot to increase the distance between them.” Id.
Moreover, the defendants have represented that they took numerous other measures—besides social distancing—to mitigate the spread of the virus. The district court summarized a few of them:
• “requiring staff and inmates to wear face masks at all times (other than when sleeping)”;
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• “conducting screening for all staff entering the facility”; • “conducting daily temperature screenings for all inmates”; • “suspending all outside visitation”; and • “providing disinfecting and hygiene supplies to all inmates.”
Dist. Ct. Order at 20. And as already explained, before the preliminary injunction
was entered, the defendants notified the district court that they had purchased and
installed ionizers to clean the facility’s air and body-heat cameras to measure
inmates’ temperatures, and had even begun testing asymptomatic detainees for the
virus as resources became more widely available. Remember, the district court
made no findings that these measures hadn’t been implemented. Quite the
opposite, in fact: The court assumed, for the sake of its deliberate-indifference
analysis, at least, that the defendants had implemented these measures, but
nonetheless concluded, as a matter of law, that they must have been inadequate
because (1) the rate of infections rose and (2) social distancing—which it took to
be the most critical measure—wasn’t possible.5
5 This marks a fundamental methodological disagreement with the dissent. We take the district court at its word that it assumed for purposes of its decision that the defendants had implemented numerous precautionary measures but nonetheless held that the defendants were deliberately indifferent. The dissent, by contrast—and we think incorrectly—takes the plaintiffs’ allegations as true and evaluates the case “[o]n th[e] record” as detailed therein. Dissenting Op. at 36; see also id. (“Plaintiffs also submitted nearly two dozen sworn affidavits describing . . . .”); id. at 38 (“My review of this record . . . .”); id. at 47 (“[T]he statements of the people detained at Metro West . . . paint a far different picture.”); id. at 48 (“Detainees say . . . .”); id. at 49 (“The detainee declarations also suggest . . . .”); id. at 50 (“In light of the plaintiffs’ evidence here . . . .”); id. (referring to “the practices attested to in the detainee declarations” and “the actual conditions described by detainees”).
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Whatever deliberate indifference is, the defendants’ conduct here doesn’t show it. The district court erred in holding that the defendants acted with a deliberately indifferent mental state, equivalent to “subjective recklessness as used in the criminal law.” Farmer, 511 U.S. at 839–40. We simply cannot conclude that, when faced with a perfect storm of a contagious virus and the space constraints inherent in a correctional facility, the defendants here acted unreasonably by “doing their best.” Because the defendants “act[ed] reasonably,” they “cannot be found liable” under the Eighth Amendment. See id. at 845; see also Williams, 2020 WL 3056217, at *7.
* * * We pause briefly to address two arguments that the plaintiffs have raised on appeal. They contend that whatever the district court’s order said, its deliberateindifference conclusion was actually premised on (1) the defendants’ failure to implement what the plaintiffs call “feasible” social-distancing measures and (2) Junior’s continued enforcement of pretrial-detention orders despite the fact that Metro West’s current population precludes adequate distancing. For reasons already explained, we don’t think the district court’s order says either of those things. And even if it did, our conclusion would remain unchanged. First, “feasible” distancing. The plaintiffs assert that the district court determined that the defendants—despite knowing that social distancing is critically
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important—were deliberately indifferent because they “neither adopted nor implemented feasible social-distancing measures.” Br. of Appellees at 27 (emphasis added). But the portion of the district court’s analysis that the plaintiffs cite doesn’t say that at all; indeed, although the plaintiffs refer to “feasible” social distancing some 14 times in their brief, see, e.g., id. at 3, 4, 10, 16, 19, 26, 27, 28, 29, 31, 41, 54, the district court didn’t mention “feasible” social distancing even once.
At most, it seems to us, the district court’s order can be read to hold that social distancing was “not uniformly enforced” in certain instances, “such as when inmates line up to receive food and eat together in their unit; when inmates line up for headcount; when inmates line up outside the clinic to receive medication; and when inmates participate in mandatory outdoor recreation once a week.” Dist. Ct. Order at 38. But again, assuming the same state of affairs that the district court did—one in which we “discount the factual disputes about the implementation of Defendants’ policies and procedures”—the allegedly nonuniform enforcement of social distancing cannot alone constitute deliberate indifference. The district court never found that the defendants knew of any potential lapses in enforcement and deliberately ignored them.6 As we have explained, while the expert report noted
6 Defendant Junior’s declaration stated that he was “not aware” of any lapses in the enforcement of Metro West’s policies, that he had deployed an “internal auditing team to ensure compliance
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some distancing violations, it also observed that social-distancing measures had been implemented and that Metro West’s staff members were “doing their best.”
Second, ongoing confinement. The plaintiffs assert that “[t]he district court separately found that plaintiffs will likely establish that Junior has exhibited deliberate indifference by enforcing plaintiffs’ ongoing confinement when the jail’s population precludes adequate distancing.” Br. of Appellees at 34. But again, that’s just not what the district court’s order says. To the contrary, in fact, the district court recognized state criminal-justice officials’ role—separate from Junior’s—in determining which inmates would be released; in its injunction order, the court ordered the defendants to provide “their state criminal justice partners” with updated information about the virus, presumably so that the defendants, in coordination with state-level actors, could reduce Metro West’s population. Dist. Ct. Order at 51–52.
Even if the plaintiffs’ posited determination existed, we would reject their reliance on it. Assuming for present purposes (only) that “failing to take an action one knows to be necessary to prevent serious harm—even if outside one’s legal authority—can establish the requisite intent for deliberate indifference,” Br. of
throughout the facility,” and that the defendants would “take appropriate corrective action” if procedures were violated.
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Appellees at 35, that intent hasn’t been shown here.7 By taking other measures,
besides release—including, among many other things, implementing some social-
distancing measures, distributing face masks, screening inmates and staff, and
providing cleaning and personal hygiene supplies—Junior has responded
reasonably to the risk of the virus. Moreover, Junior has been working toward
exactly what the plaintiffs seek: a reduction in Metro West’s population. Indeed,
by the time the district court entered its injunction, Junior and state criminal-justice
officials had together secured the release of 894 inmates, thereby reducing Metro
West’s population to less than 70% capacity.8
7 While we needn’t decide it now, legal authority must have some bearing on this question. We have suggested—albeit in dicta—that resource limitations cannot alone preclude deliberateindifference liability. See, e.g., Harris v. Thigpen, 941 F.2d 1495, 1509 (11th Cir. 1991) (stating that “a lack of funds allocated to prisons by the state legislature . . . will not excuse the failure of correctional systems to maintain a certain minimum level of medical service necessary to avoid the imposition of cruel and unusual punishment”). And some of our precedent suggests that “an allegedly contrary duty at state law” won’t “excuse the perpetuation of unconstitutional conditions of confinement.” Smith v. Sullivan, 611 F.2d 1039, 1043–44 (5th Cir. 1980). But it certainly isn’t the law that any person with physical capacity to provide relief to an inmate—say, a custodian at Metro West—can be deemed deliberately indifferent for failing to do so. 8 The plaintiffs’ reliance on Ex parte Young, 209 U.S. 123 (1908), is misplaced. They contend that their suit can be understood as an action against Junior “as enforcer of state-court detention orders, under the well-established doctrine of Ex parte Young.” Br. of Appellees at 37. Even if we were to assume that Junior is a proper defendant under Ex parte Young, that does no more than tell us that a suit could lie against him for “prospective equitable relief to end continuing violations of federal law.” Fla. Ass’n of Rehab. Facilities, Inc. v. State of Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1219 (11th Cir. 2000); see also McNeil v. Cmty. Prob. Servs., LLC, 945 F.3d 991, 992–93 (6th Cir. 2019) (upholding an injunction prohibiting a sheriff from detaining probation violators under possibly unconstitutional bail requirements); Moore v. Urquhart, 899 F.3d 1094, 1103 (9th Cir. 2018) (holding that injunctive relief could be sought against a sheriff due to his enforcement of an allegedly unconstitutional eviction procedure). Just because Junior could be ordered to take an action on pain of contempt doesn’t mean that failing to take such an action necessarily constitutes deliberate indifference. And for all the
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2 Shifting gears, the defendants separately contend that the district court erred in its likelihood-of-success-on-the-merits analysis because it failed to consider “two threshold issues”: (1) the heightened standard for municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (1978), and (2) PLRA exhaustion. We agree. Regarding municipal liability, the district court reasoned that “[a]t the preliminary injunction stage . . . Plaintiffs are not required to ‘prove a custom’ or ‘identify a final policymaker,’” Dist. Ct. Order at 32, as would normally be required under Monell, see 436 U.S. at 690–91. That is incorrect. The Supreme Court has recently reiterated that “[i]t is well established that in a § 1983 case a city or other local governmental entity cannot be subject to liability at all unless the harm was caused in the implementation of ‘official municipal policy.’” Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1951 (2018) (emphasis added) (quoting Monell, 436 U.S. at 691). Municipal liability is thus plainly part of the likelihood-of-success-on-the-merits inquiry at the preliminary-injunction stage, and the district court erred in sidestepping the issue. See Church v. City of Huntsville, 30 F.3d 1332, 1347 (11th Cir. 1994) (holding that “the plaintiffs have failed to
reasons explained in text, we reject the contention that the defendants have been deliberately indifferent.
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establish the existence of a municipal policy or a pervasive practice that could serve as a predicate to municipal liability under section 1983” and that “[t]herefore, they have not shown a substantial likelihood of success on the merits”).
The district court also erred in refusing to consider the defendants’ arguments with respect to PLRA exhaustion.9 “There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007) (emphasis added); see also Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir. 2004) (“A district court must dismiss the suit when it finds that the plaintiff-inmate has not exhausted his administrative remedies.”). Accordingly, the plaintiffs could show a substantial likelihood of success on the merits only if the defendants were unlikely to demonstrate a lack of PLRA exhaustion. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006) (explaining that “the burdens at the preliminary injunction stage track the burdens at trial”).
B While the failure to show likelihood of success on the merits alone warrants reversal, we briefly address the district court’s analysis of the remaining
9 We reject the plaintiffs’ argument that the district court declined to consider PLRA exhaustion because the defendants had waived it. The district court alluded to waiver in a footnote, but clearly explained that exhaustion would “be fully considered” as part of the defendants’ motion to dismiss at a later time, noting simply that it didn’t think exhaustion was an appropriate “issue to be decided at the preliminary injunction stage.” Dist. Ct. Order at 28.
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preliminary-injunction factors—irreparable harm, the balancing of the harms, and the public interest. Jones v. Governor of Fla., 950 F.3d at 806.
First, the district court erred in holding, without any meaningful analysis, that the plaintiffs would suffer irreparable injury absent an injunction on the ground that “COVID-19 will continue to spread throughout Metro West and infect additional inmates and staff.” Dist. Ct. Order at 41. We agree with the defendants that the inquiry isn’t whether the plaintiffs have shown that the virus poses a danger to the inmates in the abstract—it undoubtedly does—but rather whether they have shown that they will suffer irreparable injury “unless the injunction issues.” Jones v. Governor of Fla., 950 F.3d at 806.
Although the district court acknowledged that our precedent calls the irreparable-injury element “the sine qua non of injunctive relief,” it devoted only a single conclusory sentence to addressing that requirement—and it gave no consideration to whether the plaintiffs were likely to suffer irreparable injury absent an injunction. Dist. Ct. Order at 41. To be sure, the court asserted that without injunctive relief, the virus would continue to spread. But given the way it decided the case, the court couldn’t properly determine whether the plaintiffs would be injured absent injunctive relief because it declined to make factual findings about the extent and efficacy of the measures that the defendants were already taking. “As we have emphasized on many occasions, the asserted
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irreparable injury must be neither remote nor speculative, but actual and imminent.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (quotation omitted); see also Winter, 555 U.S. at 22 (“Issuing a preliminary injunction based only on a possibility of irreparable harm 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.”). Although the district court suggested that there were “factual disputes” regarding the degree to which the defendants were implementing protective measures, it opted not to resolve them. While the court didn’t have to accept the defendants’ representations that they would continue to take measures to safeguard inmates from COVID-19, it clearly had to reject those measures as insufficient before deciding that only a mandatory injunction could prevent the plaintiffs from suffering irreparable harm.
Second, the district court erred in its determination of the balance-of-theharms and public-interest factors, which “merge” when, as here, “the Government is the opposing party.” See Nken v. Holder, 556 U.S. 418, 435 (2009) (noting as much in the stay context). The district court held that “[t]he threat of a continuing outbreak of COVID-19” outweighed “the damage to Defendants caused by an injunction requiring Defendants to comply with the CDC Guidance” because, the court said, the defendants had “not offered any evidence as to why the administrative burden resulting from compliance with an injunctive order
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outweighs the threat of serious illness or death” that would result from the virus. Dist. Ct. Order at 42–43. With regard to the public interest, it held that “an order requiring Defendants to implement various measures to reduce the spread of the virus in Metro West advances the public interest by reducing the chance of community spread.” Id. at 43.
While the virus unquestionably poses a serious threat to inmates, the district court gave insufficient consideration to the burdens with which the injunction would saddle the defendants. Cf. Williams, 2020 WL 3056217, at *11 (noting that the district court’s preliminary-injunction analysis was “incomplete” because “the district court gave scant attention to the harms the BOP argued would result from the injunction”). And to be clear, this is not (solely) about weighing health and safety against security and administrative efficiency; it is also about weighing health and safety against health and safety. As this Court explained in its stay order, the injunction stripped away at least some of the defendants’ discretion “to allocate scarce resources among different county operations necessary to fight the pandemic.” Swain, 958 F.3d at 1090. For example, because “the injunction require[d] that the defendants test all inmates with COVID-19 symptoms and everyone with whom they have been in contact,” it forced the defendants to “allocate limited testing resources to Metro West at the expense of other county facilities,” under pain of contempt. Id. Perhaps especially in the prison context,
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government officials have a keen interest in maintaining the necessary flexibility to
react quickly in response to new information about the virus. The district court
therefore erred in failing to consider the “damage [its] proposed injunction may
cause” the defendants. Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247
(11th Cir. 2016) (quotation omitted).
Finally, while it doubtlessly advances the public interest to stem the spread
of COVID-19, at Metro West and everywhere, the same public interest just as
doubtlessly favors a proper allocation of public-health resources—an allocation
that politically accountable (and often local) officials are best equipped to make.
See S. Bay United Pentecostal Church v. Newsom, No. 19A1044, 2020 WL
2813056 (U.S. May 29, 2020) (Roberts, C.J., concurring in denial of application
for injunctive relief) (“Our Constitution principally entrusts ‘[t]he safety and the
health of the people’ to the politically accountable officials of the States ‘to guard
and protect.’” (quoting Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905)).10
10 Because we conclude that the district court erred in granting the preliminary injunction, we needn’t address whether the terms of the injunction violated the PLRA and Federal Rule of Civil Procedure 65. We pause to note, however, that the district court’s formulaic recitation at the end of its order—that “the relief set forth herein is ‘narrowly drawn, extends no further than necessary to correct the violation of’ Plaintiffs’ Eighth Amendment rights, ‘and is the least intrusive means necessary to correct’ Defendants’ violation of those rights,” Dist. Ct. Order at 48–49—may well be insufficient to meet this Court’s reading of PLRA § 3626(a)(1) “to require particularized findings that each requirement imposed by the preliminary injunction satisfies each of the need-narrowness-intrusiveness criteria,” United States v. Sec’y, Fla. Dep’t of Corr., 778 F.3d 1223, 1228 (11th Cir. 2015) (“We see no reason why the term ‘finds’ in § 3626(a)(1) does not require the same particularity as the term ‘findings’ in § 3626(b)(3).”); see also Cason v. Seckinger, 231 F.3d 777, 785 (11th Cir. 2000) (requiring particularized findings under 18
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III While COVID-19 poses novel health risks to incarcerated inmates—and novel administrative challenges for jail and prison administrators—the law that the district court was bound to apply is well established. In order to obtain a preliminary injunction, the plaintiffs had to show a substantial likelihood of success on the merits of their constitutional claim, which means that they had to demonstrate the defendants’ deliberate indifference—which is to say their utter recklessness. Because the district court erred, among other ways, in erroneously concluding that the plaintiffs had met that requirement, we conclude that it abused its discretion in granting the preliminary injunction.11 VACATED AND REMANDED.
U.S.C. § 3626(b)(3) and holding that a “district court’s summary conclusion” that relief met the PLRA’s requirements was “seriously deficient”). 11 There is one loose end: We recognize that, due to the evolving nature of both the COVID-19 virus and the public-health community’s recommended responses to it, the district court might be faced on remand with a factual landscape that has changed since it issued its injunction. We emphasize the Supreme Court’s admonition that, in a suit in which a plaintiff “seeks injunctive relief to prevent a substantial risk of serious injury from ripening into actual harm, ‘the subjective factor, deliberate indifference, should be determined in light of the prison authorities’ current attitudes and conduct’: their attitudes and conduct at the time suit is brought and persisting thereafter.” Farmer, 511 U.S. at 845 (emphasis added) (quoting Helling v. McKinney, 509 U.S. 25, 36 (1993)). Accordingly, any future assessment of the defendants’ conduct must take account of additional measures and precautions that the defendants have instituted during the pendency of this appeal.
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MARTIN, Circuit Judge, dissenting: The COVID-19 pandemic is a health crisis without precedent in living
memory. At the time we heard oral argument in this case, the virus had already claimed the lives of over 100,000 Americans. Ctrs. for Disease Control & Prevention, United States Coronavirus (COVID-19) Death Toll Surpasses 100,000 (May 28, 2020), https://www.cdc.gov/media/releases/2020/s0528-coronavirusdeath-toll.html. COVID-19 is highly infectious and easily communicable. Of those infected, approximately 20% will become seriously ill and 1 to 3% will die. People with common health conditions including lung or heart disease, diabetes, and chronic liver or kidney conditions are at much greater risk of death. About 15% of them will die if they contract COVID-19. Those who survive may nonetheless experience permanent organ and neurological damage. There is no known vaccine or effective antiviral medication to prevent or treat infection from COVID-19. The only effective way to protect people is to take precautionary measures to avoid infection.
Against this background, seven pretrial detainees held at the Miami-Dade Metro West Detention Center (“Metro West”) brought suit against Daniel Junior, the director of the Miami-Dade Corrections and Rehabilitation Department (“MDCR”), and Miami-Dade County. They sued on behalf of a putative class of people detained at Metro West during the COVID-19 pandemic, as well as a subset
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of people in pretrial custody at Metro West who are particularly vulnerable to injury or death if they contract the virus. The named plaintiffs all have preexisting medical conditions that place them among those at highest risk of death or serious illness if they are infected. They sought emergency declaratory and injunctive relief that would compel Metro West to take steps to reduce the risk of transmission of COVID-19 at the facility.1
As part of their emergency request for relief, Plaintiffs presented extensive evidence showing a unified expert consensus on two essential facts. First, the best way to prevent infection is through social distancing. Second, adequate social distancing was not possible at the population level in Metro West at the time they sought the injunction. Plaintiffs also submitted nearly two dozen sworn affidavits describing how jail staff and administrators had failed to implement adequate measures to maintain safe conditions even while Metro West remains dangerously crowded. On this record, I believe Plaintiffs are likely to succeed on their deliberate indifference claim. I would therefore affirm the preliminary injunction imposed by the District Judge.
1 Plaintiffs also sought a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on behalf of the subset of medically vulnerable individuals. Through this request, Plaintiffs sought the immediate release of themselves and all other members of the subset. The District Court denied the petition. The denial of that petition is not now before us.
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I. Because incarceration “strip[s] [detainees] of virtually every means of selfprotection and foreclose[s] their access to outside aid,” the Constitution imposes affirmative obligations on jail officials to provide prisoners with “adequate food, clothing, shelter, and medical care,” and to “take reasonable measures to guarantee [their] safety.”2 Farmer v. Brennan, 511 U.S. 825, 832–33, 114 S. Ct. 1970, 1976– 77 (1994) (quotation marks omitted). Jail officials violate the Eighth and Fourteenth Amendment when they fail to respond reasonably to a known, substantial risk of serious harm, such as “exposure . . . to a serious, communicable disease.” See Helling v. McKinney, 509 U.S. 25, 33, 113 S. Ct. 2475, 2480 (1993); see also Marbury v. Warden, 936 F.3d 1227, 1233 (11th Cir. 2019) (per curiam) (“It is well settled that prison officials must take reasonable measures to guarantee the safety of the inmates.” (quotation marks omitted)). Plaintiffs seeking to prove this type of Fourteenth Amendment violation must show that jail officials acted with “deliberate indifference.” Farmer, 511 U.S. at 840, 114 S. Ct. at 1980. Plaintiffs must show that they face a substantial risk of serious harm and that defendants were deliberately indifferent to that risk.
2 While the Fourteenth Amendment governs the constitutional limits of pretrial detention conditions, our circuit treats deliberate indifference claims brought under the Fourteenth Amendment similarly to those brought on behalf of convicted prisoners under the Eighth Amendment. See Taylor v. Hughes, 920 F.3d 729, 733 (11th Cir. 2019).
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Goodman, 718 F.3d at 1331. While the first prong is objective, the second prong has both subjective and objective components. There must be a showing that jail officials actually knew of the risk and either disregarded it or failed to respond in a reasonable manner. Marbury, 936 F.3d at 1233; see Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d 611, 620 (11th Cir. 2007).
My review of this record amply supports the District Court’s holding that Plaintiffs are likely to show their treatment amounted to deliberate indifference. Defendants acknowledge their subjective awareness of the objectively grave risk the COVID-19 pandemic poses to the safety of those detained at Metro West. But Defendants say they took reasonable steps, within the limits of their legal authority, to ensure detainee safety in the face of the COVID-19 threat. Unlike the majority, I see no abuse of discretion in the District Court’s finding to the contrary. This record shows that Defendants knowingly maintained conditions that placed detainees at an impermissibly high risk of illness and death in two ways: first, by maintaining a dangerously high jail population; and second, by failing to implement needed safety measures that would reduce the risk of infection in that already unsafe population level. I address these two independent bases for finding deliberate indifference in turn.
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A. First there is Metro West’s unsafe population density. I view the evidence that Defendants willfully incarcerated people at a population density that they knew to be unsafe as sufficient to show deliberate indifference. The majority opinion nonetheless concludes that Defendants cannot be found deliberately indifferent because they took other steps to decrease the risk of COVID-19 transmission and because they lack authority to release detainees without a state criminal court order. Maj. Op. at 27 & n.7. I reject this reasoning. Social distancing is the most effective measure for reducing the risk of COVID-19 transmission. But we have unrebutted expert testimony showing that adequate social distancing was not possible at Metro West’s population level at the time the preliminary injunction issued. Dr. Dushyantha Jayaweera and Dr. Hansel Tookes were appointed by the District Court to inspect and report on conditions at Metro West. They reflected the overwhelming expert consensus when they opined that the dense population of Metro West “makes it impossible to follow CDC guidance for social distancing measures, placing staff and inmates at risk for COVID-19 infection.” Because of this impossibility, the experts recommended an “urgent decrease” in the jail’s population and increased screening for COVID-19. Defendants do not dispute the importance of social distancing or that it was effectively impossible to achieve social distancing with the population levels at
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Metro West when the injunction issued. Yet despite knowledge that the population level was unsafe, Defendants continued to detain significantly more people than Metro West can safely hold during this pandemic. As a result, people at Metro West were much more likely to contract COVID-19 than if the jail population were reduced.
Taken together, these facts make out elements of a claim of deliberate indifference. Defendants knew of the risk posed by overcrowding, knew that this risk could be most effectively abated by lowering the jail population, and yet did not take that step. This knowing failure to take necessary steps to prevent grave harm sits comfortably at the heart of what our Court considers to be deliberate indifference. See Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985) (holding that “if necessary medical treatment has been delayed for nonmedical reasons, a case of deliberate indifference has been made out”). In the following sections I address the majority opinion’s two main reasons for rejecting this conclusion: that Defendants took other measures to address the pandemic and that they lacked the authority to release detainees.
1. The majority says that by taking other measures short of releasing detainees, Director Junior “has responded reasonably to the risk of the virus.” Maj. Op. at 27. But his taking some steps to reduce the risk of COVID-19 does not excuse his
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failure to take the most important step for ensuring detainee safety. That is an “urgent decrease” in the detained population of Metro West. Director Junior’s knowing failure to do so supports a finding of deliberate indifference.
Under this Court’s precedent, “good faith efforts” to resolve health risks are insufficient to overcome evidence that jail staff “recklessly disregarded the necessary means to protect inmate safety.” LaMarca v. Turner, 995 F.2d 1526, 1538 (11th Cir. 1993). We know deliberate indifference may be shown by proving that a detention center knowingly took “an easier but less efficacious course of [medical] treatment.” McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). And this Court has also found deliberate indifference where prison staff delayed or “fail[ed] to provide service acknowledged to be necessary.” Ancata, 769 F.2d at 704.
Here, the experts speak with one voice when they say reducing the population density at Metro West is “necessary” to reasonably prevent the spread of infection. Defendants were subjectively aware of the gravity of the threat posed by COVID-19. Director Junior familiarized himself with the CDC recommendations and communicated to jail staff that it was “now more important than ever that we all practice strict social distancing at all times, no exceptions.” It cannot seriously be doubted that Director Junior knew decreasing the jail population was the most effective way to reduce the risk of infection. Despite this,
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the population density of Metro West was still critically high at the time the preliminary injunction issued.
This record shows that Defendants recklessly failed to take the most essential step to ensuring the safety of Metro West detainees. In light of this, I am not persuaded that the other measures implemented at Metro West in place of lowering the jail population were sufficient to preclude a finding of deliberate indifference.
2. Defendants claim they cannot be found deliberately indifferent for their failure to address unsafe crowding at Metro West because they lacked the authority to release detainees without a state court order. Unlike the majority, I do not think the scope of Defendants’ authority under Florida law controls the outcome of the deliberate indifference inquiry. Maj. Op. at 27 n.7. State laws that compel jail officials to detain people in manifestly unsafe conditions cannot preclude a finding of deliberate indifference. In Smith v. Sullivan, 611 F.2d 1039 (5th Cir. 1980),3 our predecessor Court rejected a county sheriff’s objection to a court order requiring him to decrease the total jail population on the grounds that it would “violate his statutory duty to accept
3 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981.
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prisoners.” Id. at 1043. The Smith panel reasoned that an “allegedly contrary duty at state law” cannot “excuse the perpetuation of unconstitutional conditions of confinement.” Id. at 1044. In the same way, this Court has held that state-imposed budget limitations “will not excuse the failure of correctional systems to maintain a certain minimum level of medical service necessary to avoid the imposition of cruel and unusual punishment.” Harris v. Thigpen, 941 F.2d 1495, 1509 (11th Cir. 1991); see also Costello v. Wainwright, 525 F.2d 1239, 1252 (5th Cir. 1976) (“[T]he obligation of [prison officials] to eliminate unconstitutionalities does not depend upon what the Legislature may do . . . .” (quotation marks omitted)), vacated in part on reh’g, 539 F.2d 547 (5th Cir. 1976) (en banc), rev’d, 430 U.S. 325, 97 S. Ct. 1191 (1977), and opinion reinstated, 553 F.2d 506 (5th Cir. 1977). These cases reflect the longstanding rule that, in enforcing state law, officials may not knowingly detain people in jails that fall below the minimum constitutional standard of safety. See DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200, 109 S. Ct. 998, 1005 (1989) (“[W]hen the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment
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and the Due Process Clause.”); Helling, 509 U.S. at 33, 113 S. Ct. at 2481 (holding it is cruel and unusual punishment to hold prisoners “in unsafe conditions”).
If contrary state law obligations precluded finding deliberate indifference, federal courts would be powerless to enjoin unconstitutional prison conditions wherever state legislatures act to withhold prison officials’ authority to remedy them. But this cannot be the rule. In Brown v. Plata, 563 U.S. 493, 131 S. Ct. 1910 (2011), the Supreme Court affirmed relief given to address system-wide, Eighth-Amendment-violative conditions of confinement caused by overcrowding and lack of medical resources. See id. at 500, 520–25, 131 S. Ct. at 1922, 1936– 39. In doing so, the Supreme Court stood behind a court-imposed remedy even though it required measures beyond the authority given to some jail officials under state law. Compare Coleman v. Wilson, 912 F. Supp. 1282, 1317 (E.D. Cal. 1995) (finding that prison officials’ lack of power or authority to address unconstitutional prison conditions caused in part by overcrowding “does not necessarily contraindicate scienter”) with Brown, 563 U.S. at 500, 131 S. Ct. at 1922 (affirming remedial order of three-judge court convened at the request of the Coleman court). Congress has also empowered federal courts to exceed the bounds of state law in order to correct violations of federal constitutional rights. The Prison Litigation Reform Act (“PLRA”) authorizes district courts to “require[] or permit[] a government official to exceed his or her authority under State or local
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law” when that relief is necessary to correct the violation of a federal right and no other relief is sufficient. 18 U.S.C. § 3626(a)(1)(B). It is thus clear that federal courts may enjoin the knowing detention of people in unsafe conditions even when state law compels that detention.
This Court’s precedent interpreting Ex parte Young, 209 U.S. 123, 28 S. Ct. 441 (1908), further supports the idea that Director Junior’s state law obligations to the contrary do not preclude finding deliberate indifference. Under Young, a plaintiff may seek prospective injunctive relief to remedy ongoing state violations of federal law by suing a state official in his official capacity. See Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1219 (11th Cir. 2000). This type of remedy is “designed to end a continuing violation of federal law” and is “necessary to vindicate the federal interest in assuring the supremacy of that law.” Id. (quotation marks omitted); see also Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct. 423, 426 (1985) (“[T]he availability of prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy Clause.”). Here, Director Junior has repeatedly insisted that state law leaves him no discretion to release detainees even though continuing to detain them places them at a significantly heightened risk of contracting COVID-19. But if it is his non-discretionary, ministerial role in enforcing state laws that creates
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unsafe conditions of confinement in Metro West, he may properly be sued for
injunctive relief. See Luckey v. Harris, 860 F.2d 1012, 1015–16 (11th Cir. 1988).4
Because Plaintiffs seek injunctive relief against Director Junior in his
capacity as a state official, they are not required to prove he personally disregarded
the risk to their safety. In suits against state officials acting pursuant to state
authority, “[p]ersonal action by defendants individually is not a necessary
condition of injunctive relief.” Luckey, 860 F.2d at 1015. Director Junior’s
continuing enforcement of state law has created widespread, untenably dangerous
conditions for Metro West detainees and staff. And when state and local officials
knowingly fail to meet their affirmative constitutional obligation to ensure safe jail
conditions, “judicial authority may be invoked.” Hutto v. Finney, 437 U.S. 678,
4 That Director Junior is employed by Miami-Dade County, not the state of Florida, does not likely make him an improper defendant under Ex parte Young. A municipal official who “commits an alleged constitutional violation by simply complying with state mandates that afford no discretion . . . act[s] as an arm of the State, not the county.” McNeil v. Cmty. Prob. Servs., LLC, 945 F.3d 991, 995 (6th Cir. 2019) (alteration adopted) (quotation marks omitted); see also Moore v. Urquhart, 899 F.3d 1094, 1103 (9th Cir. 2018) (holding that “[a]ctions under Ex parte Young can be brought against both state and county officials”), cert. denied sub nom. Johanknecht v. Moore, 139 S. Ct. 2615 (2019); Huminski v. Corsones, 396 F.3d 53, 73 (2d Cir. 2005) (finding a county sheriff was “likely a state official when he was performing his general duties for the sheriff's department, particularly when he was acting pursuant to state law”); Scott v. O’Grady, 975 F.2d 366, 371 (7th Cir. 1992) (observing that “[t]he fact that [county sheriffs] normally act as county officials does not mean that they can never act as an arm of the state” and holding a function as an arm of the state when he had no discretion in enforcing state court order). In this Circuit, we determine whether a county sheriff was a state or municipal official for purposes of Eleventh Amendment liability, by examining “how state law defines the entity, what degree of control the state maintains over the entity, where funds for the entity are derived, and who is responsible for judgment against the entity.” Hufford v. Rodgers, 912 F.2d 1338, 1341 (11th Cir. 1990).
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687 n.9, 98 S. Ct. 2565, 2572 n.9 (1978) (quotation marks omitted). A rule that precludes federal judges from enjoining dangerous jail conditions mandated by state law would require those judges to abdicate a core function of their office.5
B. Setting aside Defendants’ failure to reduce Metro West’s population, I am also not persuaded Defendants took sufficient steps to minimize the risk of transmission at that unsafe population level. The District Judge rejected Defendants’ assurances that “everything that could be done was being done” and found that the record “does not unequivocally demonstrate successful implementation of the policies, protocols and procedures identified in their declarations.” This record supports her finding. The majority describes in detail the remedial measures Defendants claim to have taken, noting that the District Court accepted those claims. Maj. Op. at 21–24. However, the District Court also set out in great detail the statements of the people detained at Metro West, which paint a far different picture.6 Together, they support the finding that Defendants
5 The majority worries that finding deliberate indifference despite a lack of legal authority to act would mean that “any person with physical capacity to provide relief to an inmate” could be held deliberately indifferent. Maj. Op. at 27 n.7. I do not share this concern. Young defines a narrower range of parties who may be sued in their official capacity to remedy unconstitutional jail conditions mandated by state law. That is those who, by virtue of their office, have a connection to the unconstitutional act or conduct taken under requirement of state law. Luckey, 860 F.2d at 1015–16.
6 The majority notes that the District Court did not resolve factual disputes about the implementation of Defendants’ policies and procedures. I do not fault the majority for its careful
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systematically failed to implement policies adequate to ensure detainee safety at
this high population level. This is sufficient, in my view, to support a finding of
deliberate indifference.
In declarations submitted in support of Plaintiffs’ motion for a preliminary
injunction, Metro West detainees describe beds placed so close together they can
reach out and touch neighboring bunks. Tending to even their most basic daily
needs requires close contact with other detainees. The limited showers, toilets, and
telephones are placed close together and they are shared by up to 60 people.
Detainees say it is often difficult or impossible to clean shared surfaces, such as
phones, because they are not provided with disinfectant or other cleaning supplies.
Defendants tell us that all staff and detainees are required to wear masks, but it
appears adherence to this requirement is problematic. At the time the injunction
was issued, detainees were each given a mask approximately once a week, but the
exegesis of the District Court’s order, but I think this degree of scrutiny applied to the scope of the District Court’s factual findings is misplaced. See Maj. Op. at 16–20. Our review of preliminary injunction orders is meant to be “deferential” due to the expedited nature of preliminary injunction proceedings. See Jones v. Governor of Fla., 950 F.3d 795, 806 (11th Cir. 2020) (per curiam). In the preliminary injunction setting, district courts are in the unenviable position of both evaluating the viability of a plaintiff’s claims and balancing the equities of the case on an emergency timeline. See id.
The majority also faults Plaintiffs for raising arguments which the District Court did not address in the preliminary injunction order, including Defendants’ failure to implement “feasible” social distancing measures. See Maj. Op. at 24–25. It is a mistake to hold this against Plaintiffs. After all, an appellee who does not take a cross-appeal may urge affirmance based on “any ground that finds support in the record,” including through arguments at odds with the reasoning of the lower court. Jaffke v. Dunham, 352 U.S. 280, 281, 77 S. Ct. 307, 308 (1957) (per curiam); see also Jennings v. Stephens, 574 U.S. 271, 276, 135 S. Ct. 793, 798 (2015).
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masks are “soft,” “rip a lot,” and “get really dirty.” Sometimes the masks break after “two to three days.” Despite this, detainees are not always provided with replacements for broken masks and may be chastised or threatened with disciplinary action if they request a new one.
The detainee declarations also suggest Defendants have implemented policies that make it impossible to maintain adequate distancing. For example, three times a day, detainees must line up “shoulder-to-shoulder,” less than three feet apart, to be counted. Detainees also participate in mandatory outdoor recreation in a space shared with people from quarantined cells. Before going outside, they are lined up less than a foot apart for pat-down inspections. Three days can pass between placing a sick call and receiving medical attention. Trips to the clinic are made in groups of eight to ten and, once there, detainees must wait “shoulder-to-shoulder,” sometimes with people from other cells.
Taken together, the repeated failures to enact adequate social distancing measures documented in these declarations are sufficient to demonstrate a systemic, institutional pattern of deliberate indifference. The majority opinion is not sufficiently attentive to the way our Circuit has historically addressed deliberate indifference claims based on widespread unconstitutional conditions within a jail or prison. In cases like these, this Court has held that systemic deliberate indifference may be proved through a series of related examples that
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demonstrate a pattern of “indifference . . . to the suffering that results.” Thigpen, 941 F.2d at 1505 (quotation marks omitted). We have allowed plaintiffs to show deliberate indifference through a pattern of “systemic deficiencies” or “[r]epeated examples of delayed or denied medical care.” Rogers v. Evans, 792 F.2d 1052, 1057–59 (11th Cir. 1986). Similarly, a series of incidents closely related in time “may disclose a pattern of conduct amounting to deliberate indifference.” Id. at 1058–59. In light of the plaintiffs’ evidence here, I believe they are likely to prove a reckless failure to take medically necessary safety precautions at Metro West.
Remarkably, Defendants have not defended the practices attested to in the detainee declarations. The majority correctly points out that the CDC’s recommendations recognize that “[s]trategies will need to be tailored to the individual space in the facility and the needs of the population and staff.” Maj. Op. at 22 (alteration in original). Nevertheless, Defendants have given no explanation of why the actual conditions described by detainees were reasonably tailored to Metro West’s needs. With this gap in the evidentiary record, the District Court was not required to credit Director Junior’s assertion that the measures he implemented were adequate. “[A] factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Hale v. Tallapoosa County, 50 F.3d 1579, 1583 (11th Cir. 1995) (quoting Farmer, 511 U.S. at 842, 114 S. Ct. at 1981).
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The majority opinion also places too much weight on the broad, laudatory preamble to Dr. Jayaweera and Dr. Tookes’ court-ordered inspection report, which praised Metro West staff for “doing their best balancing social distancing and regulation applicable to the facility.” Maj. Op. at 7, 22, 24, 26. It appears the District Court either discredited or declined to give dispositive weight to this portion of the report, because it did not mention this language anywhere in the preliminary injunction order. Under the circumstances, this was not clear error. Over Plaintiffs’ objection, Dr. Tookes and Dr. Jayaweera’s inspection was conducted at a predetermined time and was limited to predetermined locations within the jail. And this record includes declarations from detainees stating that immediately before the inspection Metro West staff made numerous last minute changes, including moving people out of cells that were going to be inspected so they would be less crowded; restocking toilet paper and soap; painting bathroom walls to cover black mold; scrubbing down cells; and placing additional soap in the unit. There are also post-inspection declarations that document widespread failure to implement adequate social distancing measures. I therefore see no error in the District Court’s decision to give no weight to the notion that Metro West staff were doing their best.
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II. In closing, I will briefly describe why I part ways with the majority’s analysis of what it describes as “threshold issues”: municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 86 S. Ct. 2018 (1978), and the PLRA’s administrative exhaustion requirement. Maj. Op. at 28. Under Monell, a plaintiff seeking to hold a municipality liable for a constitutional violation must identify either an officially promulgated county policy or an unofficial custom or practice shown through the acts of a final policymaker. Grech v. Clayton County, 335 F.3d 1326, 1329 (11th Cir. 2003). I agree with the majority that, typically, district courts should address municipal liability in evaluating whether plaintiffs proceeding against a municipality are likely to succeed on the merits. Maj. Op. at 28–29. But I’ve set out why I think Plaintiffs may properly proceed against Director Junior as a state official under Ex parte Young. See supra, pages 45–47 & n.4. If Plaintiffs can get their desired relief by proceeding against Director Junior in his capacity as a state official, I don’t believe they are required to also show that they will prevail on their claims against Miami-Dade County under Monell. Neither do I think the District Court erred in deferring its ruling on exhaustion. Defendants’ brief in opposition to the preliminary injunction included a scant two paragraphs of argument on administrative exhaustion and no citations
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to the record. But they tried to incorporate the arguments they made about exhaustion in a separate motion that is 97 pages long, including a 13-page brief and 84 additional pages of exhibits. That motion was filed on a different briefing schedule, and Plaintiffs had not yet responded to Defendants’ filing at the time the District Court ruled on the preliminary injunction. The District Court found that Defendants’ opposition to the preliminary injunction improperly attempted to incorporate by reference their separate motion to dismiss for failure to exhaust.
Our Court certainly would not opine on an issue that was merely incorporated by reference by one party and not fully briefed (for lack of opportunity) by the other. I am aware of no basis for requiring district judges to live by a different standard. Beyond that, administrative exhaustion is an affirmative defense for which Defendants bear the burden of proof. See Jones v. Bock, 549 U.S. 199, 212, 127 S. Ct. 910, 919 (2007); Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). Before ruling on exhaustion, a district court must ensure the plaintiff has “sufficient opportunity to develop a record.” Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008). And although proving exhaustion is a “precondition to an adjudication on the merits,” it is not jurisdictional and may be raised by Defendants at various times in the course of litigation. Id. at 1374 & n.10.
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Here, the District Court acted well within its discretion when it rejected Defendants’ attempts to incorporate a separate, sizeable filing into its brief. This Court traditionally gives “great deference to a district court’s interpretation of its local rules,” Clark v. Hous. Auth. of City of Alma, 971 F.2d 723, 727 (11th Cir. 1992), including its authority to enforce page limitations, Yates v. Cobb Cty. Sch. Dist., 687 F. App’x 866, 868 (11th Cir. 2017) (per curiam) (unpublished). Certainly our Court actively polices its own page limits requirements. For example, we have said that an attempt to incorporate by reference 25 pages of lower-court briefing into an appellate brief “makes a mockery of our rules governing page limitations and length.” Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164, 1167 n.4 (11th Cir. 2004). I would do the District Judge the courtesy of allowing her, in turn, to manage her own docket and page limits.
III. The COVID-19 pandemic is a global health crisis that has taken the lives of thousands and strained every level of our society and government. But crises do not lower the constitutional limits on the conditions in which people may be confined against their will. People held in prisons and detention centers are among the most vulnerable to the ravages of this devastating illness. I do not understand the Fourteenth Amendment to permit the knowing and willful detention of human
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beings in circumstances that place them at great risk of death or grave illness. I would affirm the District Court Order granting Plaintiffs’ motion for a preliminary injunction.
I respectfully dissent.
55

Interim GuCidasae:n20c-e116o2n2 MDaatenFailegd:e0m6/1e5/2n0t20ofPCagoer: 1oonf 2a6virus Disease 2019 (COVID-19) in Correctional and Detention Facilities

This interim guidance is based on what is currently known about the transmission and severity of coronavirus disease 2019 (COVID-19) as of March 23, 2020.
The US Centers for Disease Control and Prevention (CDC) will update this guidance as needed and as additional information becomes available. Please check the following CDC website periodically for updated interim guidance: https://www.cdc.gov/coronavirus/2019-ncov/index.html.
This document provides interim guidance specific for correctional facilities and detention centers during the outbreak of COVID-19, to ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff, and visitors. Recommendations may need to be revised as more information becomes available.

In this guidance
• Who is the intended audience for this guidance?
• Why is this guidance being issued?
• What topics does this guidance include?
• Definitions of Commonly Used Terms
• Facilities with Limited Onsite Healthcare Services
• COVID-19 Guidance for Correctional Facilities
• Operational Preparedness
• Prevention
• Management
• Infection Control
• Clinical Care of COVID-19 Cases
• Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
• Verbal Screening and Temperature Check Protocols for Incarcerated/ Detained Persons, Staff, and Visitors

Who is the intended audience for this guidance?
This document is intended to provide guiding principles for healthcare and non-healthcare administrators of correctional and detention facilities (including but not limited to federal and state prisons, local jails, and detention centers), law enforcement agencies that have custodial authority for detained populations (i.e., US Immigration and Customs Enforcement and US Marshals Service), and their respective health departments, to assist in preparing for potential introduction, spread, and mitigation of COVID-19 in their facilities. In general, the document uses terminology referring to correctional environments but can also be applied to civil and pre-trial detention settings.
This guidance will not necessarily address every possible custodial setting and may not use legal terminology specific to individual agencies’ authorities or processes. The guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions. Facilities should contact CDC or their state, local, territorial, and/or tribal public health department if they need assistance in applying these principles or addressing topics that are not specifically covered in this guidance.

CS 316182-A  03/27/2020

cdc.gov/coronavirus

Case: 20-11622 Date Filed: 06/15/2020 Page: 2 of 26
Why is this guidance being issued?
Correctional and detention facilities can include custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting. The integration of these components presents unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors. Consistent application of specific preparation, prevention, and management measures can help reduce the risk of transmission and severe disease from COVID-19.
• Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.
• In most cases, incarcerated/detained persons are not permitted to leave the facility.
• There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.
• Persons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas.
• Options for medical isolation of COVID-19 cases are limited and vary depending on the type and size of facility, as well as the current level of available capacity, which is partly based on medical isolation needs for other conditions.
• Adequate levels of custody and healthcare staffing must be maintained to ensure safe operation of the facility, and options to practice social distancing through work alternatives such as working from home or reduced/alternate schedules are limited for many staff roles.
• Correctional and detention facilities can be complex, multi-employer settings that include government and private employers. Each is organizationally distinct and responsible for its own operational, personnel, and occupational health protocols and may be prohibited from issuing guidance or providing services to other employers or their staff within the same setting. Similarly, correctional and detention facilities may house individuals from multiple law enforcement agencies or jurisdictions subject to different policies and procedures.
• Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19.
• Because limited outside information is available to many incarcerated/detained persons, unease and misinformation regarding the potential for COVID-19 spread may be high, potentially creating security and morale challenges.
• The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and is determined by the supplies provided in the facility and by security considerations. Many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants.
• Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation.
CDC has issued separate COVID-19 guidance addressing healthcare infection control and clinical care of COVID-19 cases as well as close contacts of cases in community-based settings. Where relevant, community-focused guidance documents are referenced in this document and should be monitored regularly for updates, but they may require adaptation for correctional and detention settings.
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Case: 20-11622 Date Filed: 06/15/2020 Page: 3 of 26 This guidance document provides additional recommended best practices specifically for correctional and detention facilities. At this time, different facility types (e.g., prison vs. jail) and sizes are not differentiated. Administrators and agencies should adapt these guiding principles to the specific needs of their facility.
What topics does this guidance include?
The guidance below includes detailed recommendations on the following topics related to COVID-19 in correctional and detention settings:
√ Operational and communications preparations for COVID-19
√ Enhanced cleaning/disinfecting and hygiene practices
√ Social distancing strategies to increase space between individuals in the facility
√ How to limit transmission from visitors
√ Infection control, including recommended personal protective equipment (PPE) and potential alternatives during PPE shortages
√ Verbal screening and temperature check protocols for incoming incarcerated/detained individuals, staff, and visitors
√ Medical isolation of confirmed and suspected cases and quarantine of contacts, including considerations for cohorting when individual spaces are limited
√ Healthcare evaluation for suspected cases, including testing for COVID-19
√ Clinical care for confirmed and suspected cases
√ Considerations for persons at higher risk of severe disease from COVID-19
Definitions of Commonly Used Terms
Close contact of a COVID-19 case—In the context of COVID-19, an individual is considered a close contact if they a) have been within approximately 6 feet of a COVID-19 case for a prolonged period of time or b) have had direct contact with infectious secretions from a COVID-19 case (e.g., have been coughed on). Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
Cohorting—Cohorting refers to the practice of isolating multiple laboratory-confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group. Ideally, cases should be isolated individually, and close contacts should be quarantined individually. However, some correctional facilities and detention centers do not have enough individual cells to do so and must consider cohorting as an alternative. See Quarantine and Medical Isolation sections below for specific details about ways to implement cohorting to minimize the risk of disease spread and adverse health outcomes.
Community transmission of COVID-19—Community transmission of COVID-19 occurs when individuals acquire the disease through contact with someone in their local community, rather than through travel to an affected location. Once community transmission is identified in a particular area, correctional facilities and detention centers are more likely to start seeing cases inside their walls. Facilities should consult with local public health departments if assistance is needed in determining how to define “local community” in the context of COVID-19 spread. However, because all states have reported cases, all facilities should be vigilant for introduction into their populations.
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Case: 20-11622 Date Filed: 06/15/2020 Page: 4 of 26 Confirmed vs. Suspected COVID-19 case—A confirmed case has received a positive result from a COVID-19 laboratory test, with or without symptoms. A suspected case shows symptoms of COVID-19 but either has not been tested or is awaiting test results. If test results are positive, a suspected case becomes a confirmed case.
Incarcerated/detained persons—For the purpose of this document, “incarcerated/detained persons” refers to persons held in a prison, jail, detention center, or other custodial setting where these guidelines are generally applicable. The term includes those who have been sentenced (i.e., in prisons) as well as those held for pre-trial (i.e., jails) or civil purposes (i.e, detention centers). Although this guidance does not specifically reference individuals in every type of custodial setting (e.g., juvenile facilities, community confinement facilities), facility administrators can adapt this guidance to apply to their specific circumstances as needed.
Medical Isolation—Medical isolation refers to confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission. Medical isolation ends when the individual meets pre-established clinical and/or testing criteria for release from isolation, in consultation with clinical providers and public health officials (detailed in guidance below). In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Staff are encouraged to use the term “medical isolation” to avoid confusion.
Quarantine—Quarantine refers to the practice of confining individuals who have had close contact with a COVID-19 case to determine whether they develop symptoms of the disease. Quarantine for COVID-19 should last for a period of 14 days. Ideally, each quarantined individual would be quarantined in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, the individual should be placed under medical isolation and evaluated for COVID-19. If symptoms do not develop, movement restrictions can be lifted, and the individual can return to their previous residency status within the facility.
Social Distancing—Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19. Additional information about social distancing, including information on its use to reduce the spread of other viral illnesses, is available in this CDC publication.
Staff—In this document, “staff” refers to all public sector employees as well as those working for a private contractor within a correctional facility (e.g., private healthcare or food service). Except where noted, “staff” does not distinguish between healthcare, custody, and other types of staff including private facility operators.
Symptoms—Symptoms of COVID-19 include fever, cough, and shortness of breath. Like other respiratory infections, COVID-19 can vary in severity from mild to severe. When severe, pneumonia, respiratory failure, and death are possible. COVID-19 is a novel disease, therefore the full range of signs and symptoms, the clinical course of the disease, and the individuals and populations most at risk for disease and complications are not yet fully understood. Monitor the CDC website for updates on these topics.
Facilities with Limited Onsite Healthcare Services
Although many large facilities such as prisons and some jails usually employ onsite healthcare staff and have the capacity to evaluate incarcerated/detained persons for potential illness within a dedicated healthcare space, many smaller facilities do not. Some of these facilities have access to on-call healthcare staff or providers who visit the facility every few days. Others have neither onsite healthcare capacity nor onsite medical isolation/quarantine space and must transfer ill patients to other correctional or detention facilities or local hospitals for evaluation and care.
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Case: 20-11622 Date Filed: 06/15/2020 Page: 5 of 26 The majority of the guidance below is designed to be applied to any correctional or detention facility, either as written or with modifications based on a facility’s individual structure and resources. However, topics related to healthcare evaluation and clinical care of confirmed and suspected COVID-19 cases and their close contacts may not apply directly to facilities with limited or no onsite healthcare services. It will be especially important for these types of facilities to coordinate closely with their state, local, tribal, and/or territorial health department when they encounter confirmed or suspected cases among incarcerated/detained persons or staff, in order to ensure effective medical isolation and quarantine, necessary medical evaluation and care, and medical transfer if needed. The guidance makes note of strategies tailored to facilities without onsite healthcare where possible.
Note that all staff in any sized facility, regardless of the presence of onsite healthcare services, should observe guidance on recommended PPE in order to ensure their own safety when interacting with confirmed and suspected COVID-19 cases. Facilities should make contingency plans for the likely event of PPE shortages during the COVID-19 pandemic.
COVID-19 Guidance for Correctional Facilities
Guidance for correctional and detention facilities is organized into 3 sections: Operational Preparedness, Prevention, and Management of COVID-19. Recommendations across these sections can be applied simultaneously based on the progress of the outbreak in a particular facility and the surrounding community.
• Operational Preparedness. This guidance is intended to help facilities prepare for potential COVID-19 transmission in the facility. Strategies focus on operational and communications planning and personnel practices.
• Prevention. This guidance is intended to help facilities prevent spread of COVID-19 from outside the facility to inside. Strategies focus on reinforcing hygiene practices, intensifying cleaning and disinfection of the facility, screening (new intakes, visitors, and staff), continued communication with incarcerated/ detained persons and staff, and social distancing measures (increasing distance between individuals).
• Management. This guidance is intended to help facilities clinically manage confirmed and suspected COVID-19 cases inside the facility and prevent further transmission. Strategies include medical isolation and care of incarcerated/detained persons with symptoms (including considerations for cohorting), quarantine of cases’ close contacts, restricting movement in and out of the facility, infection control practices for individuals interacting with cases and quarantined contacts or contaminated items, intensified social distancing, and cleaning and disinfecting areas visited by cases.
Operational Preparedness
Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staff and incarcerated/detained persons about these preparations and how they may temporarily alter daily life.
Communication & Coordination
√ Develop information-sharing systems with partners. ο Identify points of contact in relevant state, local, tribal, and/or territorial public health departments before cases develop. Actively engage with the health department to understand in advance which entity has jurisdiction to implement public health control measures for COVID-19 in a particular correctional or detention facility.
ο Create and test communications plans to disseminate critical information to incarcerated/detained persons, staff, contractors, vendors, and visitors as the pandemic progresses.
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Case: 20-11622 Date Filed: 06/15/2020 Page: 6 of 26 Communicate with other correctional facilities in the same geographic area to share information

including disease surveillance and absenteeism patterns among staff.

ο Where possible, put plans in place with other jurisdictions to prevent confirmed and suspected COVID-19 cases and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.

ο Stay informed about updates to CDC guidance via the CDC COVID-19 website as more information becomes known.

√ Review existing pandemic flu, all-hazards, and disaster plans, and revise for COVID-19.
ο Ensure that physical locations (dedicated housing areas and bathrooms) have been identified to isolate confirmed COVID-19 cases and individuals displaying COVID-19 symptoms, and to quarantine known close contacts of cases. (Medical isolation and quarantine locations should be separate). The plan should include contingencies for multiple locations if numerous cases and/ or contacts are identified and require medical isolation or quarantine simultaneously. See Medical Isolation and Quarantine sections below for details regarding individual medical isolation and quarantine locations (preferred) vs. cohorting.
ο Facilities without onsite healthcare capacity should make a plan for how they will ensure that suspected COVID-19 cases will be isolated, evaluated, tested (if indicated), and provided necessary medical care.
ο Make a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity.
ο Designate officials who will be authorized to make decisions about escalating or de-escalating response efforts as the epidemiologic context changes.

√ Coordinate with local law enforcement and court officials.
ο Identify lawful alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of COVID-19 transmission.
ο Explore strategies to prevent over-crowding of correctional and detention facilities during a community outbreak.

√ Post signage throughout the facility communicating the following:
ο For all: symptoms of COVID-19 and hand hygiene instructions
ο For incarcerated/detained persons: report symptoms to staff
ο For staff: stay at home when sick; if symptoms develop while on duty, leave the facility as soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms including self-isolating at home, contacting their healthcare provider as soon as possible to determine whether they need to be evaluated and tested, and contacting their supervisor.
ο Ensure that signage is understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.

Personnel Practices
√ Review the sick leave policies of each employer that operates in the facility. ο Review policies to ensure that they actively encourage staff to stay home when sick. ο If these policies do not encourage staff to stay home when sick, discuss with the contract company. ο Determine which officials will have the authority to send symptomatic staff home.

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Case: 20-11622 Date Filed: 06/15/2020 Page: 7 of 26 √ Identify staff whose duties would allow them to work from home. Where possible, allowing
staff to work from home can be an effective social distancing strategy to reduce the risk of COVID-19 transmission.
ο Discuss work from home options with these staff and determine whether they have the supplies and technological equipment required to do so.
ο Put systems in place to implement work from home programs (e.g., time tracking, etc.).
√ Plan for staff absences. Staff should stay home when they are sick, or they may need to stay home to care for a sick household member or care for children in the event of school and childcare dismissals.
ο Allow staff to work from home when possible, within the scope of their duties. ο Identify critical job functions and plan for alternative coverage by cross-training staff where possible. ο Determine minimum levels of staff in all categories required for the facility to function safely. If
possible, develop a plan to secure additional staff if absenteeism due to COVID-19 threatens to bring staffing to minimum levels. ο Consider increasing keep on person (KOP) medication orders to cover 30 days in case of healthcare staff shortages.
√ Consider offering revised duties to staff who are at higher risk of severe illness with COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions including lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.
ο Facility administrators should consult with their occupational health providers to determine whether it would be allowable to reassign duties for specific staff members to reduce their likelihood of exposure to COVID-19.
√ Offer the seasonal influenza vaccine to all incarcerated/detained persons (existing population and new intakes) and staff throughout the influenza season. Symptoms of COVID-19 are similar to those of influenza. Preventing influenza cases in a facility can speed the detection of COVID-19 cases and reduce pressure on healthcare resources.
√ Reference the Occupational Safety and Health Administration website for recommendations regarding worker health.
√ Review CDC’s guidance for businesses and employers to identify any additional strategies the facility can use within its role as an employer.
Operations & Supplies
√ Ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility. ο Standard medical supplies for daily clinic needs ο Tissues ο Liquid soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. ο Hand drying supplies ο Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions) ο Cleaning supplies, including EPA-registered disinfectants effective against the virus that causes COVID-19
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Case: 20-11622 Date Filed: 06/15/2020 Page: 8 of 26 Recommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves, and

disposable gowns/one-piece coveralls). See PPE section and Table 1 for more detailed information,

including recommendations for extending the life of all PPE categories in the event of shortages, and

when face masks are acceptable alternatives to N95s.

ο Sterile viral transport media and sterile swabs to collect nasopharyngeal specimens if COVID-19 testing is indicated

√ Make contingency plans for the probable event of PPE shortages during the COVID-19 pandemic, particularly for non-healthcare workers.
ο See CDC guidance optimizing PPE supplies.

√ Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow. If soap and water are not available, CDC recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60% alcohol. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty.

√ Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing. (See Hygiene section below for additional detail regarding recommended frequency and protocol for hand washing.)
ο Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing.

√ If not already in place, employers operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit tested for any respiratory protection they will need within the scope of their responsibilities.

√ Ensure that staff and incarcerated/detained persons are trained to correctly don, doff, and dispose of PPE that they will need to use within the scope of their responsibilities. See Table 1 for recommended PPE for incarcerated/detained persons and staff with varying levels of contact with COVID-19 cases or their close contacts.

Prevention
Cases of COVID-19 have been documented in all 50 US states. Correctional and detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies.

Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified. Both good hygiene practices and social distancing are critical in preventing further transmission.

Operations
√ Stay in communication with partners about your facility’s current situation. ο State, local, territorial, and/or tribal health departments ο Other correctional facilities
√ Communicate with the public about any changes to facility operations, including visitation programs.

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Case: 20-11622 Date Filed: 06/15/2020 Page: 9 of 26 √ Restrict transfers of incarcerated/detained persons to and from other jurisdictions and
facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.
ο Strongly consider postponing non-urgent outside medical visits. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in
the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ Implement lawful alternatives to in-person court appearances where permissible.
√ Where relevant, consider suspending co-pays for incarcerated/detained persons seeking medical evaluation for respiratory symptoms.
√ Limit the number of operational entrances and exits to the facility.
Cleaning and Disinfecting Practices
√ Even if COVID-19 cases have not yet been identified inside the facility or in the surrounding community, begin implementing intensified cleaning and disinfecting procedures according to the recommendations below. These measures may prevent spread of COVID-19 if introduced.
√ Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates. ο Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones). ο Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs). ο Use household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19 as appropriate for the surface, following label instructions. This may require lifting restrictions on undiluted disinfectants. ο Labels contain instructions for safe and effective use of the cleaning product, including precautions that should be taken when applying the product, such as wearing gloves and making sure there is good ventilation during use.
√ Consider increasing the number of staff and/or incarcerated/detained persons trained and responsible for cleaning common areas to ensure continual cleaning of these areas throughout the day.
√ Ensure adequate supplies to support intensified cleaning and disinfection practices, and have a plan in place to restock rapidly if needed.
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Hygiene

Case: 20-11622 Date Filed: 06/15/2020 Page: 10 of 26

√ Reinforce healthy hygiene practices, and provide and continually restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms and waiting rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).

√ Encourage all persons in the facility to take the following actions to protect themselves and others from COVID-19. Post signage throughout the facility, and communicate this information verbally on a regular basis. Sample signage and other communications materials are available on the CDC website. Ensure that materials can be understood by non-English speakers and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
ο Practice good cough etiquette: Cover your mouth and nose with your elbow (or ideally with a tissue) rather than with your hand when you cough or sneeze, and throw all tissues in the trash immediately after use.
ο Practice good hand hygiene: Regularly wash your hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing your nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage.
ο Avoid touching your eyes, nose, or mouth without cleaning your hands first.
ο Avoid sharing eating utensils, dishes, and cups.
ο Avoid non-essential physical contact.

√ Provide incarcerated/detained persons and staff no-cost access to: ο Soap—Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin, as this would discourage frequent hand washing. ο Running water, and hand drying machines or disposable paper towels for hand washing ο Tissues and no-touch trash receptacles for disposal

√ Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions. Consider allowing staff to carry individual-sized bottles to maintain hand hygiene.

√ Communicate that sharing drugs and drug preparation equipment can spread COVID-19 due to potential contamination of shared items and close contact between individuals.

Prevention Practices for Incarcerated/Detained Persons
√ Perform pre-intake screening and temperature checks for all new entrants. Screening should take place in the sallyport, before beginning the intake process, in order to identify and immediately place individuals with symptoms under medical isolation. See Screening section below for the wording of screening questions and a recommended procedure to safely perform a temperature check. Staff performing temperature checks should wear recommended PPE (see PPE section below).
ο If an individual has symptoms of COVID-19 (fever, cough, shortness of breath):
 Require the individual to wear a face mask.
 Ensure that staff who have direct contact with the symptomatic individual wear recommended PPE.
 Place the individual under medical isolation (ideally in a room near the screening location, rather than transporting the ill individual through the facility), and refer to healthcare staff for further evaluation. (See Infection Control and Clinical Care sections below.)
 Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care.

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Case: 20-11622 Date Filed: 06/15/2020 Page: 11 of 26 If an individual is a close contact of a known COVID-19 case (but has no COVID-19

symptoms):

 Quarantine the individual and monitor for symptoms two times per day for 14 days. (See Quarantine section below.)

 Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective quarantine and necessary medical care.

√ Implement social distancing strategies to increase the physical space between incarcerated/ detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms). Strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Not all strategies will be feasible in all facilities. Example strategies with varying levels of intensity include:
ο Common areas:  Enforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area)
ο Recreation:  Choose recreation spaces where individuals can spread out
 Stagger time in recreation spaces
 Restrict recreation space usage to a single housing unit per space (where feasible)
ο Meals:  Stagger meals
 Rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table)
 Provide meals inside housing units or cells
ο Group activities:  Limit the size of group activities
 Increase space between individuals during group activities
 Suspend group programs where participants are likely to be in closer contact than they are in their housing environment
 Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out
ο Housing:  If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.)
 Arrange bunks so that individuals sleep head to foot to increase the distance between them
 Rearrange scheduled movements to minimize mixing of individuals from different housing areas
ο Medical:  If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider staggering sick call.
 Designate a room near the intake area to evaluate new entrants who are flagged by the intake screening process for COVID-19 symptoms or case contact, before they move to other parts of the facility.

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Case: 20-11622 Date Filed: 06/15/2020 Page: 12 of 26 √ Communicate clearly and frequently with incarcerated/detained persons about changes to their
daily routine and how they can contribute to risk reduction.
√ Note that if group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.
√ Consider suspending work release programs and other programs that involve movement of incarcerated/detained individuals in and out of the facility.
√ Provide up-to-date information about COVID-19 to incarcerated/detained persons on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Reminders to report COVID-19 symptoms to staff at the first sign of illness
√ Consider having healthcare staff perform rounds on a regular basis to answer questions about COVID-19.
Prevention Practices for Staff
√ Remind staff to stay at home if they are sick. Ensure that staff are aware that they will not be able to enter the facility if they have symptoms of COVID-19, and that they will be expected to leave the facility as soon as possible if they develop symptoms while on duty.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all staff daily on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο In very small facilities with only a few staff, consider self-monitoring or virtual monitoring (e.g., reporting to a central authority via phone). ο Send staff home who do not clear the screening process, and advise them to follow CDCrecommended steps for persons who are ill with COVID-19 symptoms.
√ Provide staff with up-to-date information about COVID-19 and about facility policies on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Employers’ sick leave policy ο If staff develop a fever, cough, or shortness of breath while at work: immediately put on a face mask, inform supervisor, leave the facility, and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. ο If staff test positive for COVID-19: inform workplace and personal contacts immediately, and do not return to work until a decision to discontinue home medical isolation precautions is made. Monitor CDC guidance on discontinuing home isolation regularly as circumstances evolve rapidly. ο If a staff member is identified as a close contact of a COVID-19 case (either within the facility or in the community): self-quarantine at home for 14 days and return to work if symptoms do not develop. If symptoms do develop, follow CDC-recommended steps for persons who are ill with COVID-19 symptoms.
√ If a staff member has a confirmed COVID-19 infection, the relevant employers should inform other staff about their possible exposure to COVID-19 in the workplace, but should maintain confidentiality as required by the Americans with Disabilities Act. ο Employees who are close contacts of the case should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
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Case: 20-11622 Date Filed: 06/15/2020 Page: 13 of 26 √ When feasible and consistent with security priorities, encourage staff to maintain a distance of
6 feet or more from an individual with respiratory symptoms while interviewing, escorting, or interacting in other ways.
√ Ask staff to keep interactions with individuals with respiratory symptoms as brief as possible.
Prevention Practices for Visitors
√ If possible, communicate with potential visitors to discourage contact visits in the interest of their own health and the health of their family members and friends inside the facility.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all visitors and volunteers on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο Staff performing temperature checks should wear recommended PPE. ο Exclude visitors and volunteers who do not clear the screening process or who decline screening.
√ Provide alcohol-based hand sanitizer with at least 60% alcohol in visitor entrances, exits, and waiting areas.
√ Provide visitors and volunteers with information to prepare them for screening. ο Instruct visitors to postpone their visit if they have symptoms of respiratory illness. ο If possible, inform potential visitors and volunteers before they travel to the facility that they should expect to be screened for COVID-19 (including a temperature check), and will be unable to enter the facility if they do not clear the screening process or if they decline screening. ο Display signage outside visiting areas explaining the COVID-19 screening and temperature check process. Ensure that materials are understandable for non-English speakers and those with low literacy.
√ Promote non-contact visits: ο Encourage incarcerated/detained persons to limit contact visits in the interest of their own health and the health of their visitors. ο Consider reducing or temporarily eliminating the cost of phone calls for incarcerated/detained persons. ο Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health and reduce exposure from direct contact with community visitors.
√ Consider suspending or modifying visitation programs, if legally permissible. For example, provide access to virtual visitation options where available. ο If moving to virtual visitation, clean electronic surfaces regularly. (See Cleaning guidance below for instructions on cleaning electronic surfaces.) ο Inform potential visitors of changes to, or suspension of, visitation programs. ο Clearly communicate any visitation program changes to incarcerated/detained persons, along with the reasons for them (including protecting their health and their family and community members’ health). ο If suspending contact visits, provide alternate means (e.g., phone or video visitation) for incarcerated/detained individuals to engage with legal representatives, clergy, and other individuals with whom they have legal right to consult.
NOTE: Suspending visitation would be done in the interest of incarcerated/detained persons’ physical health and the health of the general public. However, visitation is important to maintain mental health.
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Case: 20-11622 Date Filed: 06/15/2020 Page: 14 of 26 If visitation is suspended, facilities should explore alternative ways for incarcerated/detained persons to communicate with their families, friends, and other visitors in a way that is not financially burdensome for them. See above suggestions for promoting non-contact visits.
√ Restrict non-essential vendors, volunteers, and tours from entering the facility.
Management
If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing cases and individuals with symptoms under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE.
Operations
√ Implement alternate work arrangements deemed feasible in the Operational Preparedness section.
√ Suspend all transfers of incarcerated/detained persons to and from other jurisdictions and facilities (including work release where relevant), unless necessary for medical evaluation, medical isolation/quarantine, care, extenuating security concerns, or to prevent overcrowding. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to appropriately isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ If possible, consider quarantining all new intakes for 14 days before they enter the facility’s general population (SEPARATELY from other individuals who are quarantined due to contact with a COVID-19 case). Subsequently in this document, this practice is referred to as routine intake quarantine.
√ When possible, arrange lawful alternatives to in-person court appearances.
√ Incorporate screening for COVID-19 symptoms and a temperature check into release planning. ο Screen all releasing individuals for COVID-19 symptoms and perform a temperature check. (See Screening section below.)  If an individual does not clear the screening process, follow the protocol for a suspected COVID-19 case—including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing.  If the individual is released before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care.  Before releasing an incarcerated/detained individual with COVID-19 symptoms to a communitybased facility, such as a homeless shelter, contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
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Case: 20-11622 Date Filed: 06/15/2020 Page: 15 of 26 √ Coordinate with state, local, tribal, and/or territorial health departments.
ο When a COVID-19 case is suspected, work with public health to determine action. See Medical Isolation section below.
ο When a COVID-19 case is suspected or confirmed, work with public health to identify close contacts who should be placed under quarantine. See Quarantine section below.
ο Facilities with limited onsite medical isolation, quarantine, and/or healthcare services should coordinate closely with state, local, tribal, and/or territorial health departments when they encounter a confirmed or suspected case, in order to ensure effective medical isolation or quarantine, necessary medical evaluation and care, and medical transfer if needed. See Facilities with Limited Onsite Healthcare Services section.
Hygiene
√ Continue to ensure that hand hygiene supplies are well-stocked in all areas of the facility. (See above.)
√ Continue to emphasize practicing good hand hygiene and cough etiquette. (See above.)
Cleaning and Disinfecting Practices
√ Continue adhering to recommended cleaning and disinfection procedures for the facility at large. (See above.)
√ Reference specific cleaning and disinfection procedures for areas where a COVID-19 case has spent time (below).
Medical Isolation of Confirmed or Suspected COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities with Limited Onsite Healthcare Services, or without sufficient space to implement effective medical isolation, should coordinate with local public health officials to ensure that COVID-19 cases will be appropriately isolated, evaluated, tested (if indicated), and given care.
√ As soon as an individual develops symptoms of COVID-19, they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.
√ Keep the individual’s movement outside the medical isolation space to an absolute minimum. ο Provide medical care to cases inside the medical isolation space. See Infection Control and Clinical Care sections for additional details. ο Serve meals to cases inside the medical isolation space. ο Exclude the individual from all group activities. ο Assign the isolated individual a dedicated bathroom when possible.
√ Ensure that the individual is wearing a face mask at all times when outside of the medical isolation space, and whenever another individual enters. Provide clean masks as needed. Masks should be changed at least daily, and when visibly soiled or wet.
√ Facilities should make every possible effort to place suspected and confirmed COVID-19 cases under medical isolation individually. Each isolated individual should be assigned their own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options.
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Case: 20-11622 If cohorting is necessary:

Date Filed: 06/15/2020

Page: 16 of 26

 Only individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort confirmed cases with suspected cases or case contacts.

 Unless no other options exist, do not house COVID-19 cases with individuals who have an undiagnosed respiratory infection.

 Ensure that cohorted cases wear face masks at all times.

√ In order of preference, individuals under medical isolation should be housed:
ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully
ο Separately, in single cells with solid walls but without solid doors
ο As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above.
ο As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above.
ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.)
ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above.
ο Safely transfer individual(s) to another facility with available medical isolation capacity in one of the above arrangements (NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)

If the ideal choice does not exist in a facility, use the next best alternative.

√ If the number of confirmed cases exceeds the number of individual medical isolation spaces available in the facility, be especially mindful of cases who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other infected individuals. If cohorting is unavoidable, make all possible accommodations to prevent transmission of other infectious diseases to the higher-risk individual. (For example, allocate more space for a higher-risk individual within a shared medical isolation space.)
ο Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.
ο Note that incarcerated/detained populations have higher prevalence of infectious and chronic diseases and are in poorer health than the general population, even at younger ages.
√ Custody staff should be designated to monitor these individuals exclusively where possible. These staff should wear recommended PPE as appropriate for their level of contact with the individual under medical isolation (see PPE section below) and should limit their own movement between different parts of the facility to the extent possible.
√ Minimize transfer of COVID-19 cases between spaces within the healthcare unit.

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Case: 20-11622 Date Filed: 06/15/2020 Page: 17 of 26 √ Provide individuals under medical isolation with tissues and, if permissible, a lined no-touch
trash receptacle. Instruct them to: ο Cover their mouth and nose with a tissue when they cough or sneeze ο Dispose of used tissues immediately in the lined trash receptacle ο Wash hands immediately with soap and water for at least 20 seconds. If soap and water are not available, clean hands with an alcohol-based hand sanitizer that contains at least 60% alcohol (where security concerns permit). Ensure that hand washing supplies are continually restocked.
√ Maintain medical isolation until all the following criteria have been met. Monitor the CDC website for updates to these criteria.
For individuals who will be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  The individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart
For individuals who will NOT be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  At least 7 days have passed since the first symptoms appeared
For individuals who had a confirmed positive COVID-19 test but never showed symptoms: ο At least 7 days have passed since the date of the individual’s first positive COVID-19 test AND ο The individual has had no subsequent illness
√ Restrict cases from leaving the facility while under medical isolation precautions, unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns. ο If an incarcerated/detained individual who is a COVID-19 case is released from custody during their medical isolation period, contact public health to arrange for safe transport and continuation of necessary medical care and medical isolation as part of release planning.
Cleaning Spaces where COVID-19 Cases Spent Time
Thoroughly clean and disinfect all areas where the confirmed or suspected COVID-19 case spent time. Note—these protocols apply to suspected cases as well as confirmed cases, to ensure adequate disinfection in the event that the suspected case does, in fact, have COVID-19. Refer to the Definitions section for the distinction between confirmed and suspected cases.
ο Close off areas used by the infected individual. If possible, open outside doors and windows to increase air circulation in the area. Wait as long as practical, up to 24 hours under the poorest air exchange conditions (consult CDC Guidelines for Environmental Infection Control in Health-Care Facilities for wait time based on different ventilation conditions), before beginning to clean and disinfect, to minimize potential for exposure to respiratory droplets.
ο Clean and disinfect all areas (e.g., cells, bathrooms, and common areas) used by the infected individual, focusing especially on frequently touched surfaces (see list above in Prevention section).
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Case: 20-11622 Date Filed: 06/15/2020 Page: 18 of 26 √ Hard (non-porous) surface cleaning and disinfection
ο If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection. ο For disinfection, most common EPA-registered household disinfectants should be effective. Choose
cleaning products based on security requirements within the facility.  Consult a list of products that are EPA-approved for use against the virus that causes COVID-19. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, etc.).  Diluted household bleach solutions can be used if appropriate for the surface. Follow the manufacturer’s instructions for application and proper ventilation, and check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted. Prepare a bleach solution by mixing:
- 5 tablespoons (1/3rd cup) bleach per gallon of water or
- 4 teaspoons bleach per quart of water
√ Soft (porous) surface cleaning and disinfection ο For soft (porous) surfaces such as carpeted floors and rugs, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning:  If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely.  Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 and are suitable for porous surfaces.
√ Electronics cleaning and disinfection ο For electronics such as tablets, touch screens, keyboards, and remote controls, remove visible contamination if present.  Follow the manufacturer’s instructions for all cleaning and disinfection products.  Consider use of wipeable covers for electronics.  If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Additional information on cleaning and disinfection of communal facilities such can be found on CDC’s website.
√ Ensure that staff and incarcerated/detained persons performing cleaning wear recommended PPE. (See PPE section below.)
√ Food service items. Cases under medical isolation should throw disposable food service items in the trash in their medical isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from a COVID-19 cases can be washed with other individuals’ laundry. ο Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
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Case: 20-11622 Date Filed: 06/15/2020 Page: 19 of 26 Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible,

consider using a bag liner that is either disposable or can be laundered.

√ Consult cleaning recommendations above to ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case.

Quarantining Close Contacts of COVID-19 Cases

NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity, or without sufficient space to implement effective quarantine, should coordinate with local public health officials to ensure that close contacts of COVID-19 cases will be effectively quarantined and medically monitored.

√ Incarcerated/detained persons who are close contacts of a confirmed or suspected COVID-19 case (whether the case is another incarcerated/detained person, staff member, or visitor) should be placed under quarantine for 14 days (see CDC guidelines).
ο If an individual is quarantined due to contact with a suspected case who is subsequently tested for COVID-19 and receives a negative result, the quarantined individual should be released from quarantine restrictions.

√ In the context of COVID-19, an individual (incarcerated/detained person or staff) is considered a close contact if they:
ο Have been within approximately 6 feet of a COVID-19 case for a prolonged period of time OR
ο Have had direct contact with infectious secretions of a COVID-19 case (e.g., have been coughed on)

Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).

√ Keep a quarantined individual’s movement outside the quarantine space to an absolute minimum. ο Provide medical evaluation and care inside or near the quarantine space when possible. ο Serve meals inside the quarantine space. ο Exclude the quarantined individual from all group activities. ο Assign the quarantined individual a dedicated bathroom when possible.

√ Facilities should make every possible effort to quarantine close contacts of COVID-19 cases individually. Cohorting multiple quarantined close contacts of a COVID-19 case could transmit COVID-19 from those who are infected to those who are uninfected. Cohorting should only be practiced if there are no other available options.
ο If cohorting of close contacts under quarantine is absolutely necessary, symptoms of all individuals should be monitored closely, and individuals with symptoms of COVID-19 should be placed under medical isolation immediately.
ο If an entire housing unit is under quarantine due to contact with a case from the same housing unit, the entire housing unit may need to be treated as a cohort and quarantine in place.
ο Some facilities may choose to quarantine all new intakes for 14 days before moving them to the facility’s general population as a general rule (not because they were exposed to a COVID-19 case). Under this scenario, avoid mixing individuals quarantined due to exposure to a COVID-19 case with individuals undergoing routine intake quarantine.

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Case: 20-11622 Date Filed: 06/15/2020 Page: 20 of 26 If at all possible, do not add more individuals to an existing quarantine cohort after the 14-day

quarantine clock has started.

√ If the number of quarantined individuals exceeds the number of individual quarantine spaces available in the facility, be especially mindful of those who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other quarantined individuals. If cohorting is unavoidable, make all possible accommodations to reduce exposure risk for the higher-risk individuals. (For example, intensify social distancing strategies for higher-risk individuals.)

√ In order of preference, multiple quarantined individuals should be housed:
ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully
ο Separately, in single cells with solid walls but without solid doors
ο As a cohort, in a large, well-ventilated cell with solid walls, a solid door that closes fully, and at least 6 feet of personal space assigned to each individual in all directions
ο As a cohort, in a large, well-ventilated cell with solid walls and at least 6 feet of personal space assigned to each individual in all directions, but without a solid door
ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells creating at least 6 feet of space between individuals. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.)
ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section to maintain at least 6 feet of space between individuals housed in the same cell.
ο As a cohort, in individuals’ regularly assigned housing unit but with no movement outside the unit (if an entire housing unit has been exposed). Employ social distancing strategies related to housing in the Prevention section above to maintain at least 6 feet of space between individuals.
ο Safely transfer to another facility with capacity to quarantine in one of the above arrangements

(NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)

√ Quarantined individuals should wear face masks if feasible based on local supply, as source control, under the following circumstances (see PPE section and Table 1):
ο If cohorted, quarantined individuals should wear face masks at all times (to prevent transmission from infected to uninfected individuals).
ο If quarantined separately, individuals should wear face masks whenever a non-quarantined individual enters the quarantine space.
ο All quarantined individuals should wear a face mask if they must leave the quarantine space for any reason.
ο Asymptomatic individuals under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear face masks.

√ Staff who have close contact with quarantined individuals should wear recommended PPE if feasible based on local supply, feasibility, and safety within the scope of their duties (see PPE section and Table 1).
ο Staff supervising asymptomatic incarcerated/detained persons under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear PPE.

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Case: 20-11622 Date Filed: 06/15/2020 Page: 21 of 26 √ Quarantined individuals should be monitored for COVID-19 symptoms twice per day, including
temperature checks. ο If an individual develops symptoms, they should be moved to medical isolation immediately and further evaluated. (See Medical Isolation section above.) ο See Screening section for a procedure to perform temperature checks safely on asymptomatic close contacts of COVID-19 cases.
√ If an individual who is part of a quarantined cohort becomes symptomatic: ο If the individual is tested for COVID-19 and tests positive: the 14-day quarantine clock for the remainder of the cohort must be reset to 0. ο If the individual is tested for COVID-19 and tests negative: the 14-day quarantine clock for this individual and the remainder of the cohort does not need to be reset. This individual can return from medical isolation to the quarantined cohort for the remainder of the quarantine period. ο If the individual is not tested for COVID-19: the 14-day quarantine clock for the remainder of the cohort must be reset to 0.
√ Restrict quarantined individuals from leaving the facility (including transfers to other facilities) during the 14-day quarantine period, unless released from custody or a transfer is necessary for medical care, infection control, lack of quarantine space, or extenuating security concerns.
√ Quarantined individuals can be released from quarantine restrictions if they have not developed symptoms during the 14-day quarantine period.
√ Meals should be provided to quarantined individuals in their quarantine spaces. Individuals under quarantine should throw disposable food service items in the trash. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from quarantined individuals can be washed with other individuals’ laundry. ο Individuals handling laundry from quarantined persons should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
Management of Incarcerated/Detained Persons with COVID-19 Symptoms
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity or without sufficient space for medical isolation should coordinate with local public health officials to ensure that suspected COVID-19 cases will be effectively isolated, evaluated, tested (if indicated), and given care.
√ If possible, designate a room near each housing unit for healthcare staff to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Incarcerated/detained individuals with COVID-19 symptoms should wear a face mask and should be placed under medical isolation immediately. Discontinue the use of a face mask if it inhibits breathing. See Medical Isolation section above.
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Case: 20-11622 Date Filed: 06/15/2020 Page: 22 of 26 √ Medical staff should evaluate symptomatic individuals to determine whether COVID-19 testing
is indicated. Refer to CDC guidelines for information on evaluation and testing. See Infection Control and Clinical Care sections below as well.
√ If testing is indicated (or if medical staff need clarification on when testing is indicated), contact the state, local, tribal, and/or territorial health department. Work with public health or private labs as available to access testing supplies or services. ο If the COVID-19 test is positive, continue medical isolation. (See Medical Isolation section above.) ο If the COVID-19 test is negative, return the individual to their prior housing assignment unless they require further medical assessment or care.
Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms
√ Provide clear information to incarcerated/detained persons about the presence of COVID-19 cases within the facility, and the need to increase social distancing and maintain hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19. ο Ensure that information is provided in a manner that can be understood by non-English speaking individuals and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
√ Implement daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that incarcerated/detained individuals are not notifying staff of symptoms. See Screening section for a procedure to safely perform a temperature check.
√ Consider additional options to intensify social distancing within the facility.
Management Strategies for Staff
√ Provide clear information to staff about the presence of COVID-19 cases within the facility, and the need to enforce social distancing and encourage hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19 from staff.
√ Staff identified as close contacts of a COVID-19 case should self-quarantine at home for 14 days and may return to work if symptoms do not develop. ο See above for definition of a close contact. ο Refer to CDC guidelines for further recommendations regarding home quarantine for staff.
Infection Control
Infection control guidance below is applicable to all types of correctional facilities. Individual facilities should assess their unique needs based on the types of exposure staff and incarcerated/ detained persons may have with confirmed or suspected COVID-19 cases.
√ All individuals who have the potential for direct or indirect exposure to COVID-19 cases or infectious materials (including body substances; contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air) should follow infection control practices outlined in the CDC Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. Monitor these guidelines regularly for updates.
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Case: 20-11622 Date Filed: 06/15/2020 Page: 23 of 26 Implement the above guidance as fully as possible within the correctional/detention context. Some

of the specific language may not apply directly to healthcare settings within correctional facilities

and detention centers, or to facilities without onsite healthcare capacity, and may need to be adapted

to reflect facility operations and custody needs.

ο Note that these recommendations apply to staff as well as to incarcerated/detained individuals who may come in contact with contaminated materials during the course of their work placement in the facility (e.g., cleaning).

√ Staff should exercise caution when in contact with individuals showing symptoms of a respiratory infection. Contact should be minimized to the extent possible until the infected individual is wearing a face mask. If COVID-19 is suspected, staff should wear recommended PPE (see PPE section).

√ Refer to PPE section to determine recommended PPE for individuals persons in contact with confirmed COVID-19 cases, contacts, and potentially contaminated items.

Clinical Care of COVID-19 Cases
√ Facilities should ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms.
ο If a facility is not able to provide such evaluation and treatment, a plan should be in place to safely transfer the individual to another facility or local hospital.
ο The initial medical evaluation should determine whether a symptomatic individual is at higher risk for severe illness from COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.

√ Staff evaluating and providing care for confirmed or suspected COVID-19 cases should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations.

√ Healthcare staff should evaluate persons with respiratory symptoms or contact with a COVID-19 case in a separate room, with the door closed if possible, while wearing recommended PPE and ensuring that the suspected case is wearing a face mask.
ο If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.

√ Clinicians are strongly encouraged to test for other causes of respiratory illness (e.g., influenza).

√ The facility should have a plan in place to safely transfer persons with severe illness from COVID-19 to a local hospital if they require care beyond what the facility is able to provide.

√ When evaluating and treating persons with symptoms of COVID-19 who do not speak English, using a language line or provide a trained interpreter when possible.

Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
√ Ensure that all staff (healthcare and non-healthcare) and incarcerated/detained persons who will have contact with infectious materials in their work placements have been trained to correctly don, doff, and dispose of PPE relevant to the level of contact they will have with confirmed and suspected COVID-19 cases.

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Case: 20-11622 Date Filed: 06/15/2020 Page: 24 of 26 Ensure that staff and incarcerated/detained persons who require respiratory protection (e.g., N95s)

for their work responsibilities have been medically cleared, trained, and fit-tested in the context of

an employer’s respiratory protection program.

ο For PPE training materials and posters, please visit the CDC website on Protecting Healthcare Personnel.

√ Ensure that all staff are trained to perform hand hygiene after removing PPE.
√ If administrators anticipate that incarcerated/detained persons will request unnecessary PPE, consider providing training on the different types of PPE that are needed for differing degrees of contact with COVID-19 cases and contacts, and the reasons for those differences (see Table 1). Monitor linked CDC guidelines in Table 1 for updates to recommended PPE.

√ Keep recommended PPE near the spaces in the facility where it could be needed, to facilitate quick access in an emergency.

√ Recommended PPE for incarcerated/detained individuals and staff in a correctional facility will vary based on the type of contact they have with COVID-19 cases and their contacts (see Table 1). Each type of recommended PPE is defined below. As above, note that PPE shortages are anticipated in every category during the COVID-19 response.
ο N95 respirator

See below for guidance on when face masks are acceptable alternatives for N95s. N95 respirators should be prioritized when staff anticipate contact with infectious aerosols from a COVID-19 case. ο Face mask ο Eye protection—goggles or disposable face shield that fully covers the front and sides of the face ο A single pair of disposable patient examination gloves

Gloves should be changed if they become torn or heavily contaminated.
ο Disposable medical isolation gown or single-use/disposable coveralls, when feasible
 If custody staff are unable to wear a disposable gown or coveralls because it limits access to their duty belt and gear, ensure that duty belt and gear are disinfected after close contact with the individual. Clean and disinfect duty belt and gear prior to reuse using a household cleaning spray or wipe, according to the product label.
 If there are shortages of gowns, they should be prioritized for aerosol-generating procedures, care activities where splashes and sprays are anticipated, and high-contact patient care activities that provide opportunities for transfer of pathogens to the hands and clothing of staff.

√ Note that shortages of all PPE categories are anticipated during the COVID-19 response, particularly for non-healthcare workers. Guidance for optimizing the supply of each category can be found on CDC’s website:
ο Guidance in the event of a shortage of N95 respirators
 Based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for staff engaging in activities that would expose them to respiratory aerosols, which pose the highest exposure risk.
ο Guidance in the event of a shortage of face masks
ο Guidance in the event of a shortage of eye protection
ο Guidance in the event of a shortage of gowns/coveralls

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Case: 20-11622 Date Filed: 06/15/2020 Page: 25 of 26 Table 1. Recommended Personal Protective Equipment (PPE) for Incarcerated/Detained Persons and Staff in a Correctional Facility during the COVID-19 Response

Classification of Individual Wearing PPE

N95 respirator

Face mask

Eye Protection

Gloves

Gown/ Coveralls

Incarcerated/Detained Persons

Asymptomatic incarcerated/detained persons (under Apply face masks for source control as feasible based on local supply, quarantine as close contacts of a COVID-19 case*) especially if housed as a cohort

Incarcerated/detained persons who are confirmed or

suspected COVID-19 cases, or showing symptoms of

–



–

–

–

COVID-19

Incarcerated/detained persons in a work placement

handling laundry or used food service items from a

–

–

–





COVID-19 case or case contact

Incarcerated/detained persons in a work placement Additional PPE may be needed based on

cleaning areas where a COVID-19 case has spent time the product label. See CDC guidelines for





more details.

Staff

Staff having direct contact with asymptomatic incarcerated/detained persons under quarantine as close contacts of a COVID-19 case* (but not performing temperature checks or providing medical care)

–

Face mask, eye protection, and gloves as local supply and scope of duties allow.

–

Staff performing temperature checks on any group

of people (staff, visitors, or incarcerated/detained persons), or providing medical care to asymptomatic

–

quarantined persons









Staff having direct contact with (including transport)

or offering medical care to confirmed or suspected

**

COVID-19 cases (see CDC infection control guidelines)







Staff present during a procedure on a confirmed

or suspected COVID-19 case that may generate respiratory aerosols (see CDC infection control



–







guidelines)

Staff handling laundry or used food service items from a COVID-19 case or case contact

–

–

–





Staff cleaning an area where a COVID-19 case has

Additional PPE may be needed based on

spent time

the product label. See CDC guidelines for





more details.

* If a facility chooses to routinely quarantine all new intakes (without symptoms or known exposure to a COVID-19 case) before integrating into the facility’s general population, face masks are not necessary.
** A NIOSH-approved N95 is preferred. However, based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for procedures that are likely to generate respiratory aerosols, which would pose the highest exposure risk to staff.

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Case: 20-11622 Date Filed: 06/15/2020 Page: 26 of 26
Verbal Screening and Temperature Check Protocols for Incarcerated/Detained Persons, Staff, and Visitors
The guidance above recommends verbal screening and temperature checks for incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody. Below, verbal screening questions for COVID-19 symptoms and contact with known cases, and a safe temperature check procedure are detailed. √ Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include
the following questions: ο Today or in the past 24 hours, have you had any of the following symptoms?  Fever, felt feverish, or had chills?  Cough?  Difficulty breathing? ο In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)?
√ The following is a protocol to safely check an individual’s temperature: ο Perform hand hygiene ο Put on a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), gown/coveralls, and a single pair of disposable gloves ο Check individual’s temperature ο If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned routinely as recommended by CDC for infection control. ο Remove and discard PPE ο Perform hand hygiene
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Case: 20-11622 Date Filed: 06/15/2020 Page: 1 of 1

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303

David J. Smith Clerk of Court

June 15, 2020

MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 20-11622-X Case Style: Anthony Swain v. Daniel Junior, et al District Court Docket No: 1:20-cv-21457-KMW

For rules and forms visit www.ca11.uscourts.gov

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. Non-incarcerated pro se parties are permitted to use the ECF system by registering for an account at www.pacer.gov. Information and training materials related to electronic filing, are available at www.ca11.uscourts.gov. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).

The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.

Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .

Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for writ of certiorari (whichever is later) via the eVoucher system. Please contact the CJA Team at (404) 335-6167 or cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher system.

Pursuant to Fed.R.App.P. 39, each party to bear own costs.

For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Stephanie Tisa at (305) 579-4432.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Jeff R. Patch Phone #: 404-335-6151

OPIN-1A Issuance of Opinion With Costs

 
 Case 1:20-cv-21457-KMW Document 142 Entered on FLSD Docket 06/02/2020 Page 1 of 7

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

ANTHONY SWAIN, et al., individually and on behalf of all others similarly situated,

Plaintiffs, v.

Case No.: 1:20-cv-21457-KMW

DANIEL JUNIOR, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department, et al.,

Defendants. _____________________________________/

PLAINTIFFS’ MOTION FOR RECONSIDERATION OF INTERLOCUTORY RULING CONTAINED IN
INJUNCTION ORDER (ECF No. 100 at 2 n.2)
Plaintiffs respectfully move this Court to reconsider its dismissal of Plaintiff Winfred Hill’s claims as moot, which was contained in the Court’s Order relating to Plaintiffs’ request for a preliminary injunction, ECF No. 100 at 2 n.2, wherein the Court sua sponte “dismissed” Plaintiff Hill’s claims without a motion to dismiss those claims and without briefing on whether dismissal was appropriate. To the extent the Court intended to dismiss all of Mr. Hill’s claims, even those on behalf of the class, the Court’s dismissal of Mr. Hill’s claims is contrary to Eleventh Circuit and Supreme Court precedent. It is well-established that class claims involving inherently transitory claims are not mooted by an individual named plaintiff’s claims becoming moot. Accordingly, Plaintiffs seek an order clarifying that Mr. Hill’s claims on behalf of the class are not moot (or reinstating those claims if the Court intended to dismiss them) and clarifying that the claims of other Named Plaintiffs who have been released since filing this lawsuit are not moot.
BACKGROUND Named Plaintiffs are seven individuals in pretrial detention at the time they filed this case. ECF No. 1 ¶¶ 9-15. Plaintiffs filed the complaint/petition as a putative class action and contemporaneously moved for class certification. ECF No. 1; ECF No. 5. Since this case was filed
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Case 1:20-cv-21457-KMW Document 142 Entered on FLSD Docket 06/02/2020 Page 2 of 7
on April 5, 2020, several of the Named Plaintiffs have been released from pretrial detention. Plaintiff Winfred Hill was released from Metro West on April 21, 2020. ECF No. 81-2 ¶ 7. Plaintiff Peter Bernal was released on April 29, 2020, having been jailed pretrial for almost two months on misdemeanor charges because he could not afford to pay a $1,500 financial condition of release, when the state decided not to pursue charges against him. Ex. 1, Ragsdale Dec. ¶¶ 1-2. Plaintiff Bayardo Cruz, who had been detained since May 2019 for an alleged probation violation, which resulted from his inability to pay court debts, entered a plea on May 20, 2020 which resulted in his cases being closed and his release that same day. ECF No. 128-1 ¶ 4.
In the order granting a preliminary injunction, this Court sua sponte dismissed Plaintiff Winfred Hill’s claims as moot following his release. ECF No. 100 at 2 n.2. The Court stated as follows: “It appears to be undisputed that named Plaintiff Winfred Hill was released on April 21, 2020. (DE 81-2). Accordingly, his claims against Defendants are dismissed as moot.”
In their reply in support of their motion to dismiss, Defendants similarly request in a footnote without citation to any authority that the claims of the three Named Plaintiffs who have been released from MDCR custody since this case was filed—Peter Bernal, Winfred Hill, and Bayardo Cruz—be dismissed because their injunctive claims are “moot.” ECF No. 136 at 1 n.2.
ARGUMENT I. This Court should exercise its plenary power to reconsider its dismissal of Plaintiff
Hill’s claims. This Court’s dismissal of Plaintiff Hill’s claims was an interlocutory order under Fed. R. Civ. P. 54(b) ([A]ny order or other decision . . . that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”); Cf. Edwards v. Prime Inc., 602 F.3d 1276, 1289 (11th Cir. 2010) (federal appellate courts “have no jurisdiction to consider interlocutory orders outside the scope of [Rule 54(b)] certification, unless some other basis of jurisdiction exists”); SEC v. Carrillo, 325 F.3d 1268, 1272 (11th Cir. 2003) (One of final judgment rule’s “central objectives is to ensure that this court does not engage in piecemeal appellate review.”) (citation omitted). A district court has “plenary power” over its interlocutory orders, and its “power to reconsider, revise, alter or amend [an] interlocutory order is not subject to the limitations of Rule 59.” Toole v. Baxter Healthcare Corp., 235 F.3d 1307 (11th Cir. 2000) (internal quotation marks omitted); see also Lanier Const., Inc. v. Carbone Properties of Mobile, LLC, 253 F. App’x 861,
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Case 1:20-cv-21457-KMW Document 142 Entered on FLSD Docket 06/02/2020 Page 3 of 7
863 (11th Cir. 2007) (“[T]he district court’s denial of Lanier’s motion for leave to amend the complaint was simply an interlocutory decision . . . which the district court had ample discretion to reconsider.” (citation omitted)); Hardin v. Hayes, 52 F.3d 934, 938 (11th Cir. 1995). Thus, a court may reconsider or reverse an interlocutory ruling for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law. Court-Appointed Receiver for Lancer Mgmt. Grp., LLC v. Redwood Fin. Grp., Inc., No. 06-60919CIV, 2010 WL 2822053, at *1 (S.D. Fla. July 16, 2010); Canaday v. Household Retail Servs., Inc., 119 F. Supp. 2d 1258, 1260 (M.D. Ala. 2000).
For the reasons set forth more fully below, the Court should exercise its plenary power over its dismissal of Plaintiff Hill’s claims. The dismissal of Plaintiff Hill’s claims is contrary to well-settled Supreme Court and circuit precedent holding that inherently transitory class action claims of pretrial detainees are not mooted by an individual plaintiff’s release from jail. The sua sponte dismissal warrants the Court’s reconsideration. II. Plaintiff Hill’s and Plaintiffs’ class claims are not moot even if they are no longer
jailed in Metro West because their claims fall within the inherently transitory exception to the mootness doctrine. It is well settled “that the necessary personal stake in a live class-action controversy sometimes is present even when the named plaintiff’s own individual claim has become moot.” Stein v. Buccaneers Ltd. P’ship, 772 F.3d 698, 705 (11th Cir. 2014). This “well-recognized exception” to the mootness doctrine exists when a named plaintiff’s claim is inherently transitory, see Dunn v. Dunn, 148 F. Supp. 3d 1329, 1338-39 (M.D. Ala. 2015), and becomes moot “before the district court can reasonably be expected to rule on a certification motion.” Sosna v. Iowa, 419 U.S. 393, 402 n.11 (1975). “A claim is inherently transitory not only if there exists no plaintiff who could both establish standing at the outset of litigation and retain an active stake by the time class certification is decided, but also if it would be difficult to identify which prospective plaintiff that would be at the time of filing.” Dunn, 148 F. Supp. 3d at 1340. “The ‘inherently transitory’ rationale was developed to address circumstances in which the challenged conduct was effectively unreviewable, because no plaintiff possessed a personal stake in the suit long enough for litigation to run its course.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 76 (2013). “Claims that derive from potentially imminent release from custody are ‘a classic example of a transitory claim.’” Dunn, 148 F. Supp. 3d at 1340 (quoting Wade v. Kirkland, 118 F. 3d 667, 670 (9th Cir. 1997)). Indeed, the Supreme Court has found on at least three occasions that a
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Case 1:20-cv-21457-KMW Document 142 Entered on FLSD Docket 06/02/2020 Page 4 of 7
plaintiff seeking “to bring a class action challenging the constitutionality of temporary pretrial detentions” fits directly within the inherently transitory exception to the mootness doctrine. See Symczyk, 569 U.S. at 76 (noting that a plaintiff challenging the constitutionality of pretrial detention “would face the considerable challenge of preserving his individual claim from mootness, since pretrial custody likely would end prior to the resolution of his claim”); see also Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975) (county’s failure to provide probable cause determination was inherently transitory because “[t]he length of pretrial custody cannot be ascertained at the outset, and it may be ended at any time by release on recognizance, dismissal of the charges, or a guilty plea, as well as by acquittal or conviction after trial”); Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51-52 (1991) (county’s failure to provide prompt probable cause determination falls within inherently transitory exception to mootness doctrine); see also Edwards v. Cofield, 265 F. Supp. 3d 1344, 1347 (M.D. Ala. 2017) (“Courts routinely apply the Sosna exception in pretrial detention cases because pretrial detentions are the very sort of transitory subject matter for which the exception was created.”); Walker v. City of Calhoun, Georgia, No. 4:15-CV-170-HLM, 2016 WL 361580, at *4 (N.D. Ga. Jan. 28, 2016) (termination of class representative’s claim as a result of his release from jail did not moot the claims of the unnamed members of the class).
If a plaintiff’s claims are inherently transitory, “the ‘relation back’ doctrine is properly invoked to preserve the merits of the case for judicial resolution.” Riverside, 500 U.S. at 52. The relation back doctrine “allows the district court a reasonable opportunity to rule on a pending motion for class certification despite the intervening mootness of the named plaintiffs’ individual claims.” Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1047 (5th Cir. July 27, 1981);1 see also Symczyk, 569 U.S. at 76 (“[T]he relation-back doctrine may apply in Rule 23 cases where it is ‘certain that other persons similarly situated’ will continue to be subject to the challenged conduct and the claims raised are ‘so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.’”) (quoting Riverside, 500 U.S. at 52).
1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit cases submitted or decided prior to October 1, 1981.
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Case 1:20-cv-21457-KMW Document 142 Entered on FLSD Docket 06/02/2020 Page 5 of 7 Plaintiffs’ claims generally and Plaintiff Hill’s claims specifically, fit squarely within the
inherently transitory exception to the mootness doctrine because they challenge the conditions of their pretrial detention. As the Supreme Court explained in Gerstein, claims involving pretrial detention are inherently transitory because “[t]he length of pretrial custody cannot be ascertained at the outset, and it may be ended at any time by release on recognizance, dismissal of the charges, or a guilty plea, as well as by acquittal or conviction after trial.” 420 U.S. at 110 n.11. That is precisely what happened here: the length of time that any of the Named Plaintiffs would spend in the unconstitutional conditions in Metro West could not be ascertained at the time this case was filed, and pretrial detention has ended for several of the Named Plaintiffs because of release on alternative conditions of release, dismissal of charges, and a guilty plea. But because it is “certain that other persons similarly situated,” id. at 111, will remain detained in Metro West under unconstitutional conditions that have already resulted in the death of a putative class member, the relation-back doctrine applies to Named Plaintiffs’ claims and their claims are not moot.
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CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court reconsider its dismissal of Plaintiff Winfred Hill’s claims as moot, which was contained in the Court’s Order relating to Plaintiffs’ request for a preliminary injunction, ECF No. 100 at 2 n.2.

CERTIFICATE OF GOOD FAITH CONFERENCE

Pursuant to S.D. Fla. L. R. 7.1(a)(3), the undersigned hereby certifies that counsel for

Plaintiffs conferred with counsel for Defendants and, on June 2, 2020, and Defendants’ counsel

stated that Defendants opposed the instant Motion.

Dated: June 2, 2020

Respectfully submitted,

/s/ Katherine Hubbard Alexandria Twinem, D.C. Bar No. 1644851 (Admitted Pro Hac Vice 4/6/2020) alexandria@civilrightscorps.org Katherine Hubbard, DC Bar No. 1500503 (Admitted Pro Hac Vice 4/6/2020) katherine@civilrightscorps.org Alec Karakatsanis alec@civilrightscorps.org (Admitted Pro Hac Vice 4/28/2020) CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 2009 Tel: (202) 894-6126

R. Quinn Smith, Fla. Bar No. 59523  quinn.smith@gstllp.com  Katherine Alena Sanoja, Fla. Bar No. 99137  katherine.sanoja@gstllp.com  GST LLP  1111 Brickell Avenue, Suite 2715  Miami, Florida 33131 
Tel: (305) 856-7723

Maya Ragsdale, Fla. Bar No.: 1015395 maya@dreamdefenders.org DREAM DEFENDERS 6161 NW 9thAve. Miami, Florida 33127 Tel: 786-309-2217

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Case 1:20-cv-21457-KMW Document 142 Entered on FLSD Docket 06/02/2020 Page 7 of 7
Tiffany Yang, DC Bar. No. 230836 tyang@advancementproject.org (Admitted Pro Hac Vice 4/6/2020) Thomas B. Harvey, MO Bar. No. 61734 (Admitted Pro Hac Vice 4/6/2020) tharvey@advacementproject.org ADVANCEMENT PROJECT 1220 L Street NW, Ste 850 Washington, DC 20005 Tel: (202) 728-9557 Attorneys for Plaintiffs CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 2nd day of June, 2020 a true and correct copy of the foregoing was electronically filed with the Clerk of the Court U.S. District Court, Southern District of Florida, using the CM/ECF system which will send notification of such filing to counsel of record.
/s/ Katherine Hubbard Katherine Hubbard DC Bar No. 1500503
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