U.S. District Court Eastern District of California - Live System (Fresno) CIVIL DOCKET FOR CASE #: 1:20-cv-01048-DAD-SAB

Criswell et al v. Boudreaux Assigned to: District Judge Dale A. Drozd Referred to: Magistrate Judge Stanley A. Boone Cause: 42:1983 Prisoner Civil Rights

Date Filed: 07/29/2020 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff Charles Criswell

represented by Anne Orelind Decker ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111 415-255-1478 Fax: 415-863-7832 Email: adecker@aclunc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Ashley McDermott Munger Tolles & Olson LLP 350 S. Grand Ave. 50th FLoor Los Angeles, CA 90071 213-683-9556 Email: sara.mcdermott@mto.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Rose Gilbert ACLU of Northern California 39 Drumm Street San Francisco, CA 94111-4805 415-293-6394 Fax: 415-255-1478 Email: agilbert@aclunc.org ATTORNEY TO BE NOTICED

Ariel Tal Teshuva Munger Tolles & Olson LLP 350 S. Grand Ave.

50th Floor Los Angeles, CA 90071 213-683-9589 Email: ariel.teshuva@mto.com ATTORNEY TO BE NOTICED
Estalyn Smyke Marquis Munger Tolles & Olson 350 S. Grand Ave. Floor 50 Los Angeles, CA 90071 213-683-9297 Email: estalyn.marquis@mto.com ATTORNEY TO BE NOTICED
Jacob S. Kreilkamp Munger Tolles and Olson LLP 355 S. Grand Ave. 35th Floor Los Angeles, CA 90071-1560 213-683-9260 Fax: 213-593-2960 Email: jacob.kreilkamp@mto.com ATTORNEY TO BE NOTICED
Kathleen Guneratne ACLU Foundation Of Northern California 39 Drumm Street San Francisco, CA 94111 415-621-2493 Fax: 415-255-1478 Email: kguneratne@aclunc.org TERMINATED: 01/20/2021 ATTORNEY TO BE NOTICED
Lauren M. Harding Munger, Tolles & Olson LLP 350 S. Grand Ave. 50th Floor Los Angeles, CA 90071-3426 213-683-9100 Fax: 213-687-3702 Email: lauren.harding@mto.com ATTORNEY TO BE NOTICED

Plaintiff Levi Johnson

Melinda Eades LeMoine Munger, Tolles & Olson, LLP 350 S. Grand Ave. 50th Floor Los Angeles, CA 90071-3426 213-683-9171 Fax: 213-683-4071 Email: melinda.lemoine@mto.com ATTORNEY TO BE NOTICED
Omar Hamdy Noureldin Munger, Tolles & Olson, LLP 350 S. Grand Ave. Floor 50 Los Angeles, CA 90071-3426 213-683-9593 Fax: 213-683-4073 Email: omar.noureldin@mto.com ATTORNEY TO BE NOTICED
Shilpi Agarwal ACLU of Northern California 39 Drumm Street San Francisco, CA 94111 415-293-6373 Email: sagarwal@aclunc.org ATTORNEY TO BE NOTICED
William David Temko Munger Tolles and Olson 355 S. Grand Ave. 35th Floor Los Angeles, CA 90071-1560 213-683-9100 Email: william.temko@mto.com ATTORNEY TO BE NOTICED
represented by Anne Orelind Decker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Ashley McDermott (See above for address) LEAD ATTORNEY

Plaintiff Samuel Camposeco

ATTORNEY TO BE NOTICED
Amy Rose Gilbert (See above for address) ATTORNEY TO BE NOTICED
Ariel Tal Teshuva (See above for address) ATTORNEY TO BE NOTICED
Estalyn Smyke Marquis (See above for address) ATTORNEY TO BE NOTICED
Jacob S. Kreilkamp (See above for address) ATTORNEY TO BE NOTICED
Kathleen Guneratne (See above for address) TERMINATED: 01/20/2021 ATTORNEY TO BE NOTICED
Lauren M. Harding (See above for address) ATTORNEY TO BE NOTICED
Melinda Eades LeMoine (See above for address) ATTORNEY TO BE NOTICED
Omar Hamdy Noureldin (See above for address) ATTORNEY TO BE NOTICED
Shilpi Agarwal (See above for address) ATTORNEY TO BE NOTICED
William David Temko (See above for address) ATTORNEY TO BE NOTICED
represented by Anne Orelind Decker (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Ashley McDermott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Rose Gilbert (See above for address) ATTORNEY TO BE NOTICED
Ariel Tal Teshuva (See above for address) ATTORNEY TO BE NOTICED
Estalyn Smyke Marquis (See above for address) ATTORNEY TO BE NOTICED
Jacob S. Kreilkamp (See above for address) ATTORNEY TO BE NOTICED
Kathleen Guneratne (See above for address) TERMINATED: 01/20/2021 ATTORNEY TO BE NOTICED
Lauren M. Harding (See above for address) ATTORNEY TO BE NOTICED
Melinda Eades LeMoine (See above for address) ATTORNEY TO BE NOTICED
Omar Hamdy Noureldin (See above for address) ATTORNEY TO BE NOTICED
Shilpi Agarwal (See above for address) ATTORNEY TO BE NOTICED
William David Temko

Plaintiff Adam Ibarra

(See above for address) ATTORNEY TO BE NOTICED
represented by Anne Orelind Decker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Ashley McDermott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Rose Gilbert (See above for address) ATTORNEY TO BE NOTICED
Ariel Tal Teshuva (See above for address) ATTORNEY TO BE NOTICED
Estalyn Smyke Marquis (See above for address) ATTORNEY TO BE NOTICED
Jacob S. Kreilkamp (See above for address) ATTORNEY TO BE NOTICED
Kathleen Guneratne (See above for address) TERMINATED: 01/20/2021 ATTORNEY TO BE NOTICED
Lauren M. Harding (See above for address) ATTORNEY TO BE NOTICED
Melinda Eades LeMoine (See above for address) ATTORNEY TO BE NOTICED
Omar Hamdy Noureldin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
California Attorneys for Criminal Justice

Shilpi Agarwal (See above for address) ATTORNEY TO BE NOTICED
William David Temko (See above for address) ATTORNEY TO BE NOTICED
represented by Anne Orelind Decker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Ashley McDermott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Rose Gilbert (See above for address) ATTORNEY TO BE NOTICED
Ariel Tal Teshuva (See above for address) ATTORNEY TO BE NOTICED
Estalyn Smyke Marquis (See above for address) ATTORNEY TO BE NOTICED
Jacob S. Kreilkamp (See above for address) ATTORNEY TO BE NOTICED
Kathleen Guneratne (See above for address) TERMINATED: 01/20/2021 ATTORNEY TO BE NOTICED
Lauren M. Harding (See above for address) ATTORNEY TO BE NOTICED
Melinda Eades LeMoine

V.
Defendant
Michael Boudreaux in his official capacity as Sheriff of Tulare County

(See above for address) ATTORNEY TO BE NOTICED
Omar Hamdy Noureldin (See above for address) ATTORNEY TO BE NOTICED
Shilpi Agarwal (See above for address) ATTORNEY TO BE NOTICED
William David Temko (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher M. Pisano Best Best & Krieger LLP 500 Capitol Mall Suite 1700 Sacramento, CA 95814 916-324-4000 Fax: 916-325-4010 Email: christopher.pisano@bbklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen A. Taylor Tulare County Counsels Office 2900 W. Burrel Ave. Visalia, CA 93291 (559) 636-4971 Fax: (559) 737-4319 Email: KTaylor@tularecounty.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

07/29/2020 1 COMPLAINT against Michael Boudreaux in his official capacity as Sheriff of Tulare County by Charles CRISWELL, Levi Johnson. Attorney

Marquis, Estalyn Smyke added. (Attachments: # 1 Exhibit 1, # 2

Exhibit 2, # 3 Exhibit 3, # 4 (Entered: 07/29/2020)

Exhibit 4)(Marquis, Estalyn)

07/29/2020 2 CIVIL COVER SHEET by Charles CRISWELL, Levi Johnson (Marquis, Estalyn) (Entered: 07/29/2020)

07/29/2020

RECEIPT number 0972-9024161 for $400.00 for Civil Filing Fee from Estalyn Smyke Marquis. (Lundstrom, T) (Entered: 07/29/2020)

07/29/2020

3 SUMMONS ISSUED as to *Michael Boudreaux* with answer to complaint due within *21* days. Attorney *Estalyn Smyke Marquis* *Munger Tolles & Olson* *350 South Grand Avenue, Floor 50* *Los Angeles, CA 90071*. (Jessen, A) (Entered: 07/29/2020)

07/29/2020

4 CIVIL NEW CASE DOCUMENTS ISSUED: Initial Scheduling Conference set for 10/29/2020 at 09:30 AM in Courtroom 9 (SAB) before Magistrate Judge Stanley A. Boone. (Attachments: # 1 Standing Order, # 2 Standing Order re Judicial Emergency, # 3 Consent Form, # 4 VDRP) (Jessen, A) (Entered: 07/29/2020)

07/30/2020 5 CERTIFICATE of SERVICE by California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi

Johnson re 1 Complaint, 2 Civil Cover Sheet. (McDermott, Sara) (Entered: 07/30/2020)

07/30/2020

6 CONSENT/DECLINE of U.S. Magistrate Judge Jurisdiction. Pursuant to Fed. R. Civ. P. 73(b)(1), this document is restricted to attorneys and court staff only. Judges do not have access to view this document and will be informed of a party's response only if all parties have consented to the referral. (Teshuva, Ariel) (Entered: 07/30/2020)

08/03/2020

7 CERTIFICATE of SERVICE by California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson re 3 Summons. (McDermott, Sara) (Entered: 08/03/2020)

08/04/2020

8 CLERK'S NOTICE to Attorney Sara McDermott re 7 Certificate of Service: When filing a Proof of Service of Summons and Complaint, please use the event Summons Returned Executed under the category, Service of Process. Please re-file your document using the correct event. (Jessen, A) (Entered: 08/04/2020)

08/04/2020

9 SUMMONS RETURNED EXECUTED: Michael Boudreaux served on 7/30/2020, answer due 8/20/2020. (McDermott, Sara) (Entered: 08/04/2020)

08/12/2020 10 EX PARTE APPLICATION by California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson for Provisional Class Certification. (Attachments: # 1

Proposed Order)(McDermott, Sara) (Entered: 08/12/2020)

08/12/2020

11 EX PARTE APPLICATION by California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson for Plaintiffs' Ex Parte Notice of Motion and Motion for Temporary Restraining Order and OSC Re Preliminary Inunction; Memorandum of Points and Authorities. (Attachments: # 1 Exhibit 1 McDermott Declaration, # 2 Exhibit 2 Goldenson Declaration, # 3 Exhibit 3 Meyer Declaration, # 4 Exhibit 4 Bundy Declaration, # 5 Exhibit 5 Guneratne Declaration, # 6 Exhibit 6 Gilbert Declaration, # 7 Exhibit 7 Verner-Crist Declaration, # 8 Exhibit 8 Davidian Declaration, # 9 Exhibit 9 Alford Declaration, # 10 Exhibit 10 Bradbury Declaration, # 11 Exhibit 11 Camposeco Declaration, # 12 Exhibit 12 Supp Camposeco Declaration, # 13 Exhibit 13 Criswell Declaration, # 14 Exhibit 14 Escobar Declaration, # 15 Exhibit 15 Hernandez Declaration, # 16 Exhibit 16 Ibarra Declaration, # 17 Exhibit 17 Johnson Declaration, # 18 Exhibit 18 Supp Johnson Declaration, # 19 Exhibit 19 Martinez Declaration, # 20 Exhibit 20 Nunes Declaration, # 21 Exhibit 21 Redmon Declaration, # 22 Exhibit 22 Robinson Declaration, # 23 Exhibit 23 Rodriguez Declaration, # 24 Exhibit 24 Ward Declaration, # 25 TRO Checklist, # 26 Proposed Order)(McDermott, Sara) (Entered: 08/12/2020)

08/12/2020 12 CERTIFICATE of SERVICE by California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi

Johnson re 11 Ex Parte Application,,,,, 10 (McDermott, Sara) (Entered: 08/12/2020)

Ex Parte Application.

08/14/2020 13 DESIGNATION of COUNSEL FOR SERVICE. Added attorney Kathleen A. Taylor for Michael Boudreaux (Taylor, Kathleen) (Entered: 08/14/2020)
08/14/2020 14 MINUTE ORDER: (TEXT ENTRY ONLY) signed by District Judge Dale A. Drozd on 8/14/2020. On August 12, 2020, plaintiffs filed 10

an ex parte application for provisional class certification and 11

an ex parte application and motion for a Temporary Restraining Order. The court now sets a hearing on the pending applications and

motion for August 26, 2020 at 9:30 a.m. Parties will receive Zoom ID number and password for the hearing by email. All other interested parties who will not be speaking are to phone in telephonically by dialing 877-402-9757, access code 6966236 at the time of hearing. Defendant's oppositions to the pending applications and motion shall be filed by August 20, 2020, and plaintiffs' replies thereto shall be filed by August 24, 2020. (Thorp, J) (Entered: 08/14/2020)
08/20/2020 15 RESPONSE by Michael Boudreaux to 11 Ex Parte Application,,,,,. (Attachments: # 1 Points and Authorities, # 2 Declaration Macias, # 3 Declaration Jones, # 4 Declaration Lehner, # 5 Declaration Silveira, # 6 Declaration Robles, # 7 Declaration Sigley, # 8 Proof of Service)(Taylor, Kathleen) (Entered: 08/20/2020)
08/20/2020 16 RESPONSE by Michael Boudreaux to 10 Ex Parte Application. (Attachments: # 1 Points and Authorities, # 2 Proof of Service)(Taylor, Kathleen) (Entered: 08/20/2020)
08/24/2020 17 REPLY by California Attorneys for Criminal Justice, Samuel
Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson re 10 Ex Parte Application. (Teshuva, Ariel) (Entered: 08/24/2020)
08/24/2020 18 REPLY by California Attorneys for Criminal Justice, Samuel
Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson re 11 Ex Parte Application,,,,,. (Attachments: # 1 Exhibit 25 Supplemental McDermott Declaration, # 2 Exhibit 26 Supplemental Verner-Crist Declaration)(McDermott, Sara) (Entered: 08/24/2020)
08/26/2020 19 MINUTES (Text Only) for proceedings held via video conference before District Judge Dale A. Drozd: Motion Hearing held on 8/26/2020. 10
Ex Parte Application for Provisional Class Certification and 11
Ex Parte Application for Temporary Restraining Order argued, submitted and taken under submission. Written order to follow. Plaintiffs' Counsel Sara McDermott, Ariel Teshuva and Amy Gilbert (Zoom) present. Defendant's Counsel Kathleen Taylor (Zoom) present. Court Reporter/CD Number: Karen Hooven. (Thorp, J) (Entered: 08/26/2020)
08/26/2020 20 TRANSCRIPT REQUEST by California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson for proceedings held on August 26, 2020 before Judge Dale A. Drozd. Court Reporter Karen Hooven. (Teshuva, Ariel) (Entered: 08/26/2020)

08/27/2020 21 TRANSCRIPT of Proceedings held on 8-26-20, Motions Hearing before District Judge Dale A. Drozd, filed by Court Reporter Karen Hooven, Phone number 559-264-0584 E-mail karenhooven@yahoo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 9/17/2020. Redacted Transcript Deadline set for 9/28/2020. Release of Transcript Restriction set for 11/27/2020. (Hooven, K) (Entered: 08/27/2020)
08/27/2020 22 SUPPLEMENT by Michael Boudreaux re 15 Response,. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Proof of Service)(Taylor, Kathleen) (Entered: 08/27/2020)
08/28/2020 23 OPPOSITION by Plaintiffs California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson to 22 Supplement. (Attachments: # 1 Exhibit 27 McDermott Declaration)(McDermott, Sara) (Entered: 08/28/2020)
08/28/2020 24 CLERK'S NOTICE to Attorney Kathleen Taylor re 22 Supplement: Your filing is entitled Supplement, however, the actual document attached is a Motion to Supplement. Please re-file your document using the correct event Motion for Miscellaneous Relief. If you need assistance, please contact the CM/ECF help desk at 866-884-5444, or refer to the CM/ECF User's Manual on the court's website. (Rivera, O) (Entered: 08/28/2020)
08/31/2020 25 MOTION Supplement to Def Opposition re 15 Response, by Michael Boudreaux. Motion Hearing set for 9/16/2021 at 08:30 AM in Courtroom 9 (SAB) before District Judge Dale A. Drozd. (Attachments: # 1 Exhibit 1. Overview of Testing, # 2 Exhibit 2. Duration of Isolation, # 3 Exhibit 3. When to Quarantine, # 4 Exhibit 4. Discontinuation of Transmission, # 5 Exhibit 5. Discontinuation of Isolation, # 6 Proof of Service)(Taylor, Kathleen) (Entered: 08/31/2020)
09/02/2020 26 ORDER GRANTING APPLICATION FOR PROVISIONAL CLASS CERTIFICATION AND GRANTING MOTION FOR A TEMPORARY
RESTRAINING ORDER, IN PART (Doc. Nos. 10 , 11 , 25 ) signed by District Judge Dale A. Drozd on 9/2/2020. (Thorp, J) (Entered: 09/02/2020)
09/08/2020 27 STATEMENT of Compliance filed by Defendant Michael Boudreaux
re 26 Order on Motion for Miscellaneous Relief. (Attachments: # 1 Exhibit Policy 716, # 2 Exhibit WellPath Screening Form, # 3 Exhibit

Legal Visitation Information, # 4 Proof of Service)(Taylor, Kathleen) (Entered: 09/08/2020)
09/09/2020 28 AMENDED STATEMENT of Compliance filed by Defendant Michael
Boudreaux re 26 Order on Motion for Miscellaneous Relief. (Attachments: # 1 Exhibit A, # 2 Proof of Service)(Taylor, Kathleen) (Entered: 09/09/2020)
09/14/2020 29 SUPPLEMENTAL STATEMENT of Compliance filed by Defendant
Michael Boudreaux re 26 Order on Motion for Miscellaneous Relief. (Attachments: # 1 Exhibit D Report to Court, # 2 Exhibit E Supp Declaration of Kevin Silveira, # 3 Proof of Service)(Taylor, Kathleen) (Entered: 09/14/2020)
09/28/2020 30 ASSOCIATION of ATTORNEY: Added attorney Christopher M. Pisano for Michael Boudreaux. (Attachments: # 1 Proof of Service)(Taylor, Kathleen) (Entered: 09/28/2020)
09/28/2020 31 RESPONSE by California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson to 26
Order on Motion for Miscellaneous Relief. (Noureldin, Omar) (Entered: 09/28/2020)
10/06/2020 32 MINUTE ORDER: (TEXT ONLY) signed by District Judge Dale A. Drozd on 10/6/2020. On September 28, 2020, the parties submitted a 31 joint proposed briefing schedule for plaintiffs' anticipated motion for a preliminary injunction. Due to the court's availability, the court sets a hearing date of Wednesday, December 2, 2020 at 10:00 AM for plaintiffs' anticipated motion for a preliminary injunction. All parties must appear via Zoom. Parties will receive Zoom ID number and password for the hearing by email. Plaintiffs' motion shall be filed no later than November 3, 2020. Defendant's opposition, if any, shall be filed no later than November 17, 2020, and plaintiffs' reply thereto shall be filed no later than November 24, 2020. (Thorp, J) (Entered: 10/06/2020)
10/06/2020 33 ORDER REQUIRING DEFENDANT TO FILE RESPONSIVE PLEADING. TEN DAY DEADLINE. Signed by Magistrate Judge Stanley A. Boone on 10/6/2020. (Hernandez, M) (Entered: 10/06/2020)
10/12/2020 34 STIPULATION and PROPOSED ORDER for Protective Order by California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson. (Attachments: # 1 Proposed Order For Protective Order)(Teshuva, Ariel) (Entered: 10/12/2020)

10/14/2020 35 ORDER Re Stipulation for Protective Order, signed by Magistrate Judge Stanley A. Boone on 10/13/2020. (Rivera, O) (Entered: 10/14/2020)
10/16/2020 36 ANSWER TO PRISONER CIVIL RIGHTS COMPLAINT by Michael Boudreaux. (Pisano, Christopher) (Entered: 10/16/2020)
10/22/2020 37 JOINT STATEMENT of Joint Case Management Statement filed by Plaintiffs California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson. (Teshuva, Ariel) (Entered: 10/22/2020)
10/29/2020 39 MINUTES (Text Only) for proceedings held via video conference before Magistrate Judge Stanley A. Boone: SCHEDULING CONFERENCE held on 10/29/2020. The Court to issue Scheduling Conference Order. NOTE: "SAB Chambers Procedures" emailed to the parties. Plaintiffs Counsel Amy Gilbert, Sara McDermott, Ariel Teshuva via video. Defendants Counsel Christopher Pisano via video. Court Reporter/CD Number: off record - via video. (Hernandez, M) (Entered: 10/30/2020)
10/30/2020 38 NOTICE of APPEARANCE by Lauren M. Harding on behalf of California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson. Attorney Harding, Lauren M. added. (Harding, Lauren) (Entered: 10/30/2020)
11/02/2020 40 STIPULATION and PROPOSED ORDER for Leave to File Briefing Exceeding Page Limitation by California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson. (Attachments: # 1 Proposed Order)(Harding, Lauren) (Entered: 11/02/2020)
11/02/2020 41 MINUTE ORDER: (TEXT ONLY) signed by District Judge Dale A. Drozd on 11/2/2020. Pursuant to the 40 parties' stipulation and good cause appearing, the parties are granted leave to exceed the page limits set forth in this court's standing order as follows. Plaintiffs may file a 32page memorandum of points and authorities in support of their anticipated motion for a preliminary injunction and an 18-page reply brief in support thereof. Defendant may file a 32-page brief in opposition thereto. (Thorp, J) (Entered: 11/02/2020)
11/02/2020 42 SCHEDULING ORDER signed by Magistrate Judge Stanley A. Boone on 10/30/2020: Discovery Deadlines:Non-Expert Discovery: March 26, 2021; Expert Disclosure: April 5, 2021; Supplemental Expert Disclosure: May 5, 2021; Expert Discovery: May 21, 2021; Dispositive Motion Deadlines: Filing: June 25, 2021; Hearing: Pursuant to Local Rules PreTrial Conference: November 15, 2021 at 1:30 pm Courtroom 5; Trial: No Trial Set. (Hernandez, M) (Entered: 11/02/2020)

11/02/2020 43 MOTION to CERTIFY CLASS by California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson. (Harding, Lauren) (Entered: 11/02/2020)
11/03/2020 44 MOTION for PRELIMINARY INJUNCTION by California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson. Motion Hearing set for 12/2/2020 at 10:00 AM in Courtroom 5 (DAD) before District Judge Dale A. Drozd. (Attachments: # 1 Exhibit 1 - Declaration of Omar Noureldin ISO Motion for Preliminary Injunction, # 2 Exhibit A to Declaration of Omar Noureldin, # 3 Exhibit B to Declaration of Omar Noureldin, # 4 Exhibit C to Declaration of Omar Noureldin, # 5 Exhibit D to Declaration of Omar Noureldin, # 6 Exhibit E to Declaration of Omar Noureldin, # 7 Exhibit F to Declaration of Omar Noureldin, # 8 Exhibit G to Declaration of Omar Noureldin, # 9 Exhibit H to Declaration of Omar Noureldin, # 10 Exhibit I to Declaration of Omar Noureldin, # 11 Exhibit J to Declaration of Omar Noureldin, # 12 Exhibit K to Declaration of Omar Noureldin, # 13 Exhibit L to Declaration of Omar Noureldin, # 14 Exhibit M to Declaration of Omar Noureldin, # 15 Exhibit 2 - Declaration of Dylan Verner-Crist, # 16 Exhibit A-C to Declaration of Dylan Verner-Crist, # 17 Exhibit 3 - Declaration of Dr. Jaimie Meyer, # 18 Exhibit 4 Declaration of Nina T. Harawa, # 19 Exhibit 5 - Declaration of Dr. Craig W. Haney, Ph.D., # 20 Exhibit 6-10, # 21 Exhibit 11-15, # 22 Exhibit 1620, # 23 Exhibit 21-25, # 24 Exhibit 26-30, # 25 Exhibit 31-35, # 26 Proposed Order)(Noureldin, Omar) (Entered: 11/03/2020)
11/17/2020 45 OPPOSITION by Michael Boudreaux to 44 Motion for Preliminary Injunction,,,,,. (Attachments: # 1 Memorandum of Points And Authorities in Opposition to Plaintiffs' Motion for Preliminary Injunction, # 2 Declaration of Michael K. Brady in Support of, # 3 Declaration of Benjamin Mitchell in Support of, # 4 Declaration of Kevin Silveira in Support of, # 5 Declaration of Jonathan Brown in Support of, # 6 Declaration of Corey Jones in Support of, # 7 Declaration of Gabriel Macias in Support of, # 8 Declaration of David Winters in Support of, # 9 Declaration of Cyrena Robles in Support of, # 10 Declaration of Cheri Lehner in Support of, # 11 Declaration of Julie Stamper in Support of, # 12 Declaration of Russell Murphey in Support of, # 13 Declaration of Andy Garcia in Support of, # 14 Declaration of Jerry Neves in Support of, # 15 Declaration of Dr. Karen Haught in Support of, # 16 Declaration of Dr. Sharon Minnick in Support of, # 17 Declaration of Philip Keiser in Support of)(Pisano, Christopher) (Entered: 11/17/2020)
11/24/2020 46 REPLY by California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson re 44 Motion for Preliminary Injunction,,,,,. (Attachments: # 1 Ex. 1 Teshuva Declaration, # 2 Ex. A Haught Depo Subpoena, # 3 Ex. B Emails re

Haught Depo Subpoena, # 4 Ex. C Objection to Haught Depo Subpoena, # 5 Ex. D Defendant Initial Disclosures, # 6 Ex. E TUL0008740, # 7 Ex. F TUL0000595, # 8 Ex. G CDC Guidelines re MVPs, # 9 Ex. H Silveria Dep Excerpts, # 10 Ex. I Liberstein Dep Excerpts, # 11 Ex. J Wellpath Log reason for test with Labcorp-c1-c102, # 12 Ex. 2 Second Supplemental Meyer Declaration, # 13 Ex. 3 Supplemental Verner-Crist Declaration, # 14 Ex. A Ibarra Grievance, # 15 Ex. B Benavidez Grievance, # 16 Ex. C Lehne Grievance, # 17 Ex. 4 Gilbert Declaration, # 18 Ex. A Gilbert email re Rigoberto Benavidez video working)(Harding, Lauren) (Entered: 11/24/2020)

11/24/2020

ACKNOWLEDGEMENT OF RECEIPT of Lodged Thumb Drive of Video Exhibits R, S, T, U, Y, Z and O as to 45 , dated 11/17/2020 from Christopher Pisano. (Text only entry) (Martin-Gill, S) (Entered: 11/25/2020)

12/02/2020 47 NOTICE of ERRATA by Michael Boudreaux re 45 Opposition to Motion,,,,.. (Attachments: # 1 Exhibit Exhibit 1)(Pisano, Christopher) (Entered: 12/02/2020)

12/02/2020 48 MINUTES (Text Only) for proceedings held via video conference before District Judge Dale A. Drozd: Motion Hearing held on 12/2/2020. 44 Motion for Preliminary Injunction argued, submitted and taken under submission. Written order to follow. Plaintiffs' Counsel Omar Noureldin, Lauren Harding, and Kathleen Guneratne (Zoom) present. Defendant's Counsel Christopher Pisano (Zoom) present. Court Reporter/CD Number: Karen Hooven. (Thorp, J) (Entered: 12/02/2020)

12/03/2020 49 TRANSCRIPT REQUEST by Michael Boudreaux for proceedings held on 12/02/2020 before Judge Dale A. Drozd. Court Reporter Karen Hooven. (Pisano, Christopher) (Entered: 12/03/2020)

12/03/2020 50 TRANSCRIPT REQUEST by California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson for proceedings held on 12/02/2020 before Judge Judge Dale A. Drozd. Court Reporter Karen Hooven. (Noureldin, Omar) (Entered: 12/03/2020)

12/16/2020 51 TRANSCRIPT of Proceedings held on 12-2-20, Preliminary Injunction Hearing before District Judge Dale A. Drozd, filed by Court Reporter Karen Hooven, Phone number 559-264-0584 E-mail karenhooven@yahoo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 1/7/2021. Redacted Transcript Deadline set for 1/19/2021. Release of Transcript Restriction set for 3/18/2021. (Hooven, K) (Entered: 12/16/2020)

12/21/2020 52 EX PARTE APPLICATION by California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson for Leave to Supplement the Record of Plaintiffs' Motion for Preliminary Injunction. (Attachments: # 1 Exhibit 1 Declaration of Omar Noureldin, # 2 Exhibit A Email re request for testing data, # 3 Exhibit B BSCC Tulare County Jails COVID-19 data 2020-12-06 to 2020-12-12, # 4 Exhibit C Email re outbreak in Tulare County Jails, # 5 Exhibit 2 Declaration of Antonio Estrada, # 6 Exhibit 3 Declaration of Dylan Verner-Crist, # 7 Proposed Order)(Noureldin, Omar) (Entered: 12/21/2020)

12/21/2020 53 STATUS REPORT by Michael Boudreaux. (Pisano, Christopher) (Entered: 12/21/2020)

12/22/2020 54 OPPOSITION by Michael Boudreaux to 52 Ex Parte Application,,. (Attachments: # 1 Declaration David Winters Declaration, # 2 Declaration Kevin Silveira Declaration)(Pisano, Christopher) (Entered: 12/22/2020)

12/23/2020

55 ORDER DENYING 43 Motion to Certify Class and DENYING 44 Motion for Preliminary Injunction without prejudice signed by District Judge Dale A. Drozd on 12/22/2020. (Lundstrom, T) (Entered: 12/23/2020)

01/14/2021 56 STIPULATION and PROPOSED ORDER for [Proposed] Stipulated Protective Order re: Discovery of Electronically Stored Information by California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson. (Attachments: # 1 Proposed Order)(Teshuva, Ariel) (Entered: 01/14/2021)

01/15/2021 57 ORDER entering PROTECTIVE ORDER 56 signed by Magistrate Judge Stanley A. Boone on 1/14/2021. (Lundstrom, T) (Entered: 01/15/2021)

01/19/2021 58 NOTICE of APPEARANCE by Anne Orelind Decker on behalf of California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson. Attorney Decker, Anne Orelind added. (Decker, Anne) (Entered: 01/19/2021)

02/25/2021 59 MOTION to File Supplemental Pleading Pursuant to Fed. R. Civ. P. 15

re 1 Complaint, by California Attorneys for Criminal Justice, Samuel Camposeco, Charles Criswell, Adam Ibarra, Levi Johnson. Motion Hearing set for 4/6/2021 at 09:30 AM in Courtroom 5 (DAD) before District Judge Dale A. Drozd. (Attachments: # 1 Exhibit A - [Proposed] Supplemental Complaint, # 2 Declaration of Lauren M. Harding ISO Rule 15 Motion Regarding Meet and Confer Efforts, # 3 Proposed Order)(Harding, Lauren) (Entered: 02/25/2021)

02/26/2021 60 MINUTE ORDER signed by District Judge Dale A. Drozd on 2/26/2021: (Text Only Entry) The parties are advised that pursuant to General Order No. 617, addressing the public health emergency posed by the coronavirus (COVID-19) outbreak, all civil motions set for hearing before District Judge Dale A. Drozd will be decided on the papers. The parties should not contact Judge Drozd's chambers to inquire about whether a hearing on a pending motion will be held. If the court determines that a hearing is necessary, the court will issue an order to specially set the motion for hearing by telephone or video conference. In accordance with Judge Drozd's Standing Order in Light of Judicial Emergency in the Eastern District of California, the hearing date selected by the movant will continue to govern the deadlines for opposition and reply briefs pursuant to Local Rule 230(c). (Thorp, J) (Entered: 02/26/2021)

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1.40

 
 Case 1:20-cv-01048-DAD-SAB Document 1 Filed 07/29/20 Page 1 of 48

1 JACOB S. KREILKAMP (State Bar No. 248210) jacob.kreilkamp@mto.com
2 WILLIAM D. TEMKO (State Bar No. 98858) william.temko@mto.com
3 MELINDA E. LEMOINE (State Bar No. 235670) melinda.lemoine@mto.com
4 SARA A. McDERMOTT (State Bar No. 307564) Sara.McDermott@mto.com
5 OMAR H. NOURELDIN (State Bar No. 301549) Omar.Noureldin@mto.com
6 ARIEL T. TESHUVA (State Bar No. 324238) Ariel.Teshuva@mto.com
7 ESTALYN S. MARQUIS (State Bar No. 329780) Estalyn.Marquis@mto.com
8 MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue
9 Fiftieth Floor Los Angeles, California 90071-3426
10 Telephone: (213) 683-9100 Facsimile: (213) 687-3702
11 KATHLEEN GUNERATNE (State Bar No. 250751)
12 KGuneratne@aclunc.org SHILPI AGARWAL (State Bar No. 270749)
13 SAgarwal@aclunc.org AMY GILBERT (State Bar No. 316121)
14 AGilbert@aclunc.org ACLU FOUNDATION OF NORTHERN CALIFORNIA
15 39 Drumm Street San Francisco, CA 94111
16 Telephone: (415) 621-2493

17 Attorneys for Plaintiffs

18

UNITED STATES DISTRICT COURT

19

EASTERN DISTRICT OF CALIFORNIA

20

21 Charles Criswell, Levi Johnson, Samuel Camposeco, Adam Ibarra, and California
22 Attorneys for Criminal Justice,

23

Plaintiffs,

24

vs.

Case No.
CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF HABEAS CORPUS

25 Michael Boudreaux in his official capacity as Sheriff of Tulare County,
26 Defendant.
27

28

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF HABEAS CORPUS

Case 1:20-cv-01048-DAD-SAB Document 1 Filed 07/29/20 Page 2 of 48

1

Plaintiffs Charles Criswell, Levi Johnson, Samuel Camposeco, and Adam Ibarra, on behalf

2 of a class of similarly situated incarcerated people in the custody of the Tulare County Sheriff’s

3 Office, and Plaintiff California Attorneys for Criminal Justice (collectively, “Plaintiffs”) allege as

4 follows:

5

JURISDICTION AND VENUE

6

1. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

7 § 1331, because it arises under the Constitution and laws of the United States, specifically 28

8 U.S.C. § 2241 and 42 U.S.C. § 1983. Plaintiffs allege that Defendant Michael Boudreaux, in his

9 official capacity as Sheriff of Tulare County, has violated the First, Eighth, and Fourteenth

10 Amendments to the United States Constitution. This Court has supplemental jurisdiction over

11 Plaintiffs’ claim under the Bane Act, Cal. Civ. Code § 52.1(b), because the state claim and federal

12 claims derive from a common nucleus of operative facts.

13

2. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C.

14 §§ 2201–02, by Federal Rules of Civil Procedure 57 and 65, and by the inherent equitable powers

15 of this Court.

16

3. Venue is proper in this District under 28 U.S.C. § 1391(b)(2), because a substantial

17 part of the events or omissions giving rise to this action occurred, and continue to occur, in this

18 District.

19

INTRODUCTION

20

4. Plaintiffs bring this action to prevent avoidable illness and death from COVID-19

21 among people incarcerated at Tulare County Jails.1 Plaintiffs challenge Defendant Sheriff Michael

22 Boudreaux’s callous indifference to their health and safety. And they challenge Defendant’s

23 callow attempts to prevent them from challenging his unconstitutional practices in court.

24 Plaintiffs, like many Americans in this age of pandemic, simply want the opportunity to be safe, to

25 protect themselves as best they can from a novel and frightening disease. But as long as Defendant

26

27 1 The term “Tulare County Jails” refers to the five detention facilities managed by the Tulare 28 County Sheriff’s Office: Bob Wiley Detention Facility (BWDF), Main Jail, Men’s Correctional
Facility, Adult Pre-Trial Facility (APTF), and South County Detention Facility. -2-
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Case 1:20-cv-01048-DAD-SAB Document 1 Filed 07/29/20 Page 3 of 48

1 continues to ignore the widely-known risk of COVID-19 to Tulare County Jails, the lives of

2 Plaintiffs, and the class they seek to represent, will remain imperiled.

3

5. The rapid spread of COVID-19 has been met with alarm by the media, public

4 health officials, and governments across the globe—and with good reason. COVID-19 is highly

5 contagious and potentially deadly. For those who become infected, COVID-19 creates a

6 significant risk of death or severe illness, which can include extreme chest pain and difficulty

7 breathing. In some cases, treatment requires highly invasive and psychologically traumatic life-

8 support measures. Even those who contract only a “mild” case experience unnecessary pain and

9 suffering, which may linger or recur for weeks or months after the initial onset of symptoms. Nor

10 do scientists yet know the long-term effects of contracting the disease.

11

6. In correctional facilities, congregate living and unsanitary conditions facilitate

12 rapid disease transmission. Public health officials have urged jails to ensure that incarcerated

13 people can eat, sleep, and recreate while maintaining at least six feet of physical distance from

14 others. They emphasize the importance of providing incarcerated people with masks, soap, and

15 sanitizer, and explain that common areas and cells should be frequently disinfected. Because

16 turnover is high, jails should quarantine newly-arrived people for at least 14 days before releasing

17 them into the general population. And given the risk of asymptomatic transmission, experts

18 recommend that quarantine be paired with testing of everyone in a facility. Those who fall ill

19 should be identified and humanely isolated. And sick people must be given appropriate medical

20 treatment responsive to their condition. Without these measures in place, the virus is likely to

21 spread not only through the incarcerated population, but also the staff and then to the community

22 living beyond its walls.2

23

24 2 That community is already struggling with a devastating outbreak. See, e.g., Sheyanne N.

25 Romero, COVID-19 Update: Tulare County Case Levels Still ‘Extremely High,’ Hospitals Fill,

Visalia Times-Delta (July 23, 2020, 2:03 p.m.), 26 https://www.visaliatimesdelta.com/story/news/2020/07/23/tulare-county-case-levels-still-

27

extremely-high/3288145001/ (explaining that “[p]ositive testing rates in the county are hovering between 12% and 14%, significantly higher than California’s threshold for the monitoring list at

28 8% positive rate”).

-3-
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Case 1:20-cv-01048-DAD-SAB Document 1 Filed 07/29/20 Page 4 of 48

1

7. It is critical that Tulare County Jails heed this public advice. As the COVID-19

2 pandemic has spread, jails and prisons have been among the hardest-hit. By mid-May, 10 of the 15

3 largest COVID-19 clusters had occurred in jails and prisons.3 Across the United States, the

4 number of known infections among people incarcerated in state prisons and correctional officers

5 has surged by 45 percent since July 1.4 The 13 largest known clusters of the virus in the United

6 States, and 87 of the top 100, can be found inside correctional institutions.5 Public health officials

7 believe that the virus is introduced into correctional facilities by officers and other facility staff.6

8 Prison outbreaks often occur in tandem with increases in infection in the surrounding

9 communities.7 Since the start of the pandemic, more than 100,000 people in prisons and jails have

10 been reported infected, with more than 800 reported dead.8 Given the lack of testing in many

11 locations, the actual numbers are likely to be much higher.

12

8. It would be difficult to live in America today and not know about the threat of

13 COVID-19. Officials across the nation have repeatedly implored—and in some instances,

14 required—Americans to practice “social distancing,” avoid congregating in groups, wash their

15 hands and use hand sanitizer regularly, disinfect frequently touched surfaces, wear cloth face

16 coverings, and seek prompt medical attention if symptoms develop. Officials have spent time,

17 money, and political capital to bring these messages to the public for one simple reason: Without

18

19

20 3 Daniel Fernandez, There is Only One Way to Prevent Mass Deaths in Prisons: Let them Out, The 21 Nation (May 14, 2020), https://www.thenation.com/article/activism/coronavirus-prison-danbury/.
4 New York Times, A surge in U.S. prisons is hitting inmates and officers alike (July 28, 2020), 22 https://www.nytimes.com/2020/07/28/world/coronavirus-covid23 19.html?action=click&campaign_id=154&emc=edit_cb_20200728&instance_id=20725&module
=Top+Stories&nl=coronavirus24 briefing&pgtype=Homepage&regi_id=85528050&segment_id=34584&te=1&user_id=920068633
50757aafcdd26d002680ab6#link-288d1535. 25 5 Id.
26 6 Id.
27 7 Id.
28 8 New York Times, Coronavirus in the U.S.: Latest Map and Case Count, (last visited July 28, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html. -4-
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1 these measures, the spread of COVID-19 will continue unabated, claiming countless lives in its

2 wake.

3

9. Defendant knows about the risk of COVID-19. And he knows how important

4 preventive measures are. On July 3, 2020, Defendant announced on Facebook a new campaign,

5 “MASK UP Tulare County,” seeking to raise awareness about the importance of masks. As

6 Defendant said, “The people of Tulare County have always taken care of each other. And we are

7 asking you to continue to do that now, by wearing masks, practicing good hygiene, and, of course,

8 social distancing.” Yet Defendant has categorically refused to extend that protection to the people

9 incarcerated in his jails. His explicit policy forbids incarcerated people from wearing masks while

10 in their housing units—even those with underlying medical conditions who are especially

11 vulnerable to death and serious injury from COVID-19.

12

10. Defendant has also ignored calls from the judicial branch to take action to prevent

13 the spread of COVID-19. On July 1, 2020, the Honorable Brett R. Alldredge, presiding judge of

14 the Tulare County Superior Court, and Stephanie Cameron, Court Executive Officer, recognizing

15 the threat of COVID-19 to the Court and the community, wrote a letter respectfully requesting that

16 the county “immediately implement testing of all inmates in the county jail facilities and entry

17 temperature checks for all shared county courthouse buildings open to the public.”9 Defendant has

18 flatly refused to implement even these simple procedures.

19

11. Defendant’s refusal to allow incarcerated people to wear cloth face coverings and

20 to implement COVID-19 testing is part of a pattern of reckless disregard for the people in his care.

21 Despite actual knowledge of public health directives and the grave risk posed by COVID-19,

22 Defendant has failed to implement many basic procedures that other facilities commenced long

23 ago: steps as simple as permitting incarcerated people to spread out where bed space is available

24 and providing prompt medical attention to those who report COVID-19 symptoms. Defendant’s

25 indifference has left incarcerated people with COVID-19 symptoms to suffer without proper

26 medical care, quarantine, or monitoring. And it has left incarcerated people crammed into close

27

28 9 Letter from Tulare County Superior Court (Ex. 1 at 1). -5-
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1 quarters despite available bed space, unable to practice social distancing or take other precautions.

2 In short, Defendant has created conditions that virtually ensure COVID-19 will spread like

3 wildfire in Tulare County facilities—if it has not already.

4

12. Even as he has failed to protect the health and lives of incarcerated people,

5 Defendant has engaged in a concerted effort to stymie attempts by incarcerated people to protect

6 themselves. Defendant has prevented incarcerated people from engaging in confidential attorney

7 visits and has engaged in systematic intimidation and retaliation against incarcerated people who

8 dared to pursue litigation challenging the unconstitutional conditions of confinement at Tulare

9 County Jails. Numerous people have reached out to the American Civil Liberties Union of

10 Northern California (ACLU) about conditions in the Jails. Defendant transferred one of those

11 individuals to a high-security unit without explanation. He transferred another to a less desirable

12 inmate work position. Others have been aggressively questioned about their attorney visits by

13 armed deputies, despite a “no firearm” policy in the Jails. By threat, intimidation, and retaliation,

14 Defendant has actively interfered with the constitutional right of Plaintiffs and the class they

15 represent—all to avoid revealing his own unconstitutional activities.

16

13. Defendant also created a new legal visitation policy in response to Plaintiffs’

17 counsel’s investigation. That policy was designed to frustrate Plaintiffs’ and prospective class

18 members’ efforts to meet confidentially with civil rights attorneys about the appalling conditions

19 in the jail—in violation of their constitutional right to access the courts under the First and

20 Fourteenth Amendments.

21

14. On May 28, 2020, Defendant abruptly canceled ACLU’s confidential visits with

22 incarcerated people at Tulare County Jails. The next day, on May 29, 2020, Defendant

23 promulgated a new policy limiting confidential legal visits to those with attorneys who had

24 already been designated as an incarcerated person’s “attorney of record.” Since the promulgation

25 of the new policy, as supplemented on June 4, 2020, no potential class members have been

26 afforded a confidential meeting with ACLU attorneys. And the policy has blocked at least some

27 incarcerated people from meeting with their criminal defense attorneys. The new policy has not

28 only frustrated potential class members’ right of access to the courts, in violation of the First and
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Case 1:20-cv-01048-DAD-SAB Document 1 Filed 07/29/20 Page 7 of 48

1 Fourteenth Amendments, it is so overbroad as to infringe at least some class members’ right to

2 counsel in their criminal cases, in violation of the Sixth Amendment.

3

15. In short: Defendant has failed to take any meaningful action to prepare for COVID-

4 19. In fact, he has actively interfered with incarcerated people’s ability to protect themselves, both

5 within the jail by failing to implement CDC-recommended virus response measures, and in court

6 by blocking Plaintiffs’ ability to petition the government to enforce their constitutional rights.

7 What is worse: Defendant has created a real, material risk that the Jails will face the pandemic

8 with absolutely no ability or preparation to address it.

9

16. When it comes to COVID-19 in jails and prisons, everything goes well until it

10 doesn’t. San Quentin, for example, did not see its first COVID-19 case until May 31.10 It is now

11 dealing with the second worst outbreak in a California prison, seeing thousands infected and 13

12 dead.11 What caused the outbreak in San Quentin, from initial reports, is strikingly similar to what

13 is happening in Tulare County right now: A failure to test new intakes, to release incarcerated

14 people to allow for social distancing, and to quarantine those who may be infected.12

15

17. Tulare County’s luck is already running out. Just weeks ago, the Jails saw their first

16 cases of COVID-19. On June 26, 2020, Defendant reported on the Tulare County Sheriff’s Office

17 Facebook page that 11 incarcerated people had tested positive, out of “more than 200 total

18 COVID-19 tests in the Tulare County Jail Facilities.”13 One month later, on July 28, 2020,

19 Defendant reported that in fact 22 incarcerated people had tested positive for COVID-19 during

20
21 10 Meredith Deliso and Meredith Longo, California’s San Quentin prison using tents, warehouse to treat inmates infected with COVID-19, ABC News, (July 9, 2020, at 4:50 p.m.),
22 https://abcnews.go.com/US/californias-san-quentin-prison-tents-warehouse-treatinmates/story?id=71690138
23 11 Colleen Shalby, 8th Death row inmate dies as COVID-19 surge continues in prison, Los Angeles 24 Times (July 22, 2020, at 11:53 a.m.), https://www.latimes.com/california/story/2020-07-22/13th-
prisoner-at-san-quentin-dies-from-suspected-coronavirus 25 12 Amy Maxmen, California’s San Quentin prison declined free coronavirus tests and urgent 26 advice—now that it has a massive outbreak, Nature (July 7, 2020),
https://www.nature.com/articles/d41586-020-02042-9 27 13 Tulare County Sheriff’s Office, Facebook (June 26, 2020), 28 https://www.facebook.com/TulareSheriff/posts/3939122956158707
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Case 1:20-cv-01048-DAD-SAB Document 1 Filed 07/29/20 Page 8 of 48

1 the June testing cycle—out of only 139 total tests administered in late June.14 Defendant also

2 reported that 37 deputies have been tested for COVID-19, five of which have tested positive.

3 Assuming that the most recent reported numbers are most accurate, if the test positivity rate—that

4 is, the number of positive tests divided by the number of total tests administered; here, 15.8%—is

5 applied to the Jails’ total population, there were likely more than 150 positive cases that went

6 undetected during the June round of testing. Those undetected cases will continue to silently and

7 unwittingly transmit the disease within the Jails.

8

18. The time to intervene is now. The warning signs could not be clearer. Tulare

9 County—where the deputies, nurses, and arrestees who come into the Tulare County Jails live—is

10 itself experiencing a COVID-19 outbreak, and its test positivity rates have skyrocketed to more

11 than 12%. And the fall is fast approaching, with a renewed wave of COVID-19 infections

12 predicted to hit at the same time as seasonal influenza, creating a devastating loss of life and

13 further straining the healthcare system’s capacity.15 Defendant is simply not prepared to handle a

14 COVID-19 outbreak of any scale, and through his deliberate indifference and lack of action, has

15 created a serious risk that one will occur.

16

PARTIES

17

19. Plaintiff-Petitioner Charles Criswell is currently in the custody of Defendant at the

18 Main Jail, where he is at risk of death or serious injury if exposed to COVID-19. He is being held

19 post-conviction.

20

20. Plaintiff-Petitioner Levi Johnson is currently in the custody of Defendant at the

21 Main Jail, where he is at risk of death or serious injury if exposed to COVID-19. He is being held

22 in pre-trial custody and is presumed innocent.

23

24 14 Tulare County Sherriff’s Office, Facebook (July 28, 2020), https://www.facebook.com/TulareSheriff/posts/4081234765280858. Defendant has not explained
25 the discrepancy between the numbers he reported in June and those he reported a month later in 26 July. The lack of transparency regarding the scope of Defendant’s testing efforts is yet another
indication that Defendant is not being fully forthcoming with the public. 27 15 Cory Stieg, What a ‘Second Wave’ of Covid-19 Could Look Like and How to Prevent It, 28 CNBC.com (Jun. 28, 2020, 9:00 a.m.), https://www.cnbc.com/2020/06/28/what-second-wave-of-
covid-19-means-and-how-to-prevent-it.html. -8-
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Case 1:20-cv-01048-DAD-SAB Document 1 Filed 07/29/20 Page 9 of 48

1

21. Plaintiff-Petitioner Samuel Camposeco is currently in the custody of Defendant at

2 the Bob Wiley Detention Facility, where he is at risk of death or serious injury if exposed to

3 COVID-19. He is being held in pre-trial custody and is presumed innocent.

4

22. Plaintiff-Petitioner Adam Ibarra is currently in the custody of Defendant at the Bob

5 Wiley Detention Facility, where he is at risk of death or serious injury if exposed to COVID-19.

6 He is being held in pre-trial custody and is presumed innocent.

7

23. Plaintiff California Attorneys for Criminal Justice (“CACJ”) is a membership

8 organization of criminal defense attorneys practicing in California. CACJ routinely engages in

9 advocacy and educational trainings to advance justice, fairness, and constitutional protections in

10 the criminal justice system in the courts and the Legislature. CACJ has approximately 1,300

11 attorney members, who handle criminal cases in every county in the state, including Tulare

12 County. CACJ members have clients and former clients now incarcerated in Tulare County Jails.

13 Because of the harms caused by Defendant’s current COVID-19 policies and practices, CACJ has

14 had to expend and divert its resources to ensure that our clients who are incarcerated in Tulare

15 County Jails do not become infected by COVID-19. Defendant’s current COVID-19 policies and

16 practices frustrate CACJ’s mission and goals. Time spent on this Tulare County litigation

17 interferes with time CACJ would otherwise be spending on bills that CACJ is sponsoring during

18 this legislative session.

19

24. Defendant Michael Boudreaux is sued in his official capacity as Sheriff of Tulare

20 County. Defendant directs the management of Tulare County Jails and is responsible under

21 California law “to keep the county jail[s] and the prisoners in it . . . .” Cal. Gov’t Code § 26605.

22

STATEMENT OF FACTS

23 I. COVID-19 is a Global Pandemic that Endangers Correctional Facilities.

24

A. COVID-19 is a Highly Infectious and Potentially Deadly Disease.

25

25. COVID-19 is the disease caused by the SARS-CoV-2 virus responsible for the

26 current global pandemic. The World Health Organization estimates that as of July 28, 2020, there

27

28
-9-
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Case 1:20-cv-01048-DAD-SAB Document 1 Filed 07/29/20 Page 10 of 48

1 are 16.3 million confirmed cases of COVID-19, 650,805 confirmed deaths, and 216 countries,

2 areas, or territories with confirmed cases.16

3

26. The Centers for Disease Control and Prevention (“CDC”) estimates that as of July

4 28, 2020, there are 4.28 million confirmed cases of COVID-19 and 147, 672 confirmed deaths

5 from the disease in all 50 states and the District of Columbia.17

6

27. Cases in California are surging: California now has more confirmed cases of

7 COVID-19 than any other state in the nation.18 As of July 28, 2020, there were at least 463,635

8 confirmed cases in California, 8,550 reported deaths, and at least 470,762 confirmed cases in

9 California, 8,679 reported deaths, and at least 8,862 confirmed cases and 172 reported deaths in

10 Tulare County.19

11

28. Because these numbers include only laboratory confirmed cases, they likely

12 understate the actual number of cases and deaths. Most medical and public health experts agree

13 that the situation, which is already dire, will continue to worsen over the coming weeks to months.

14

29. COVID-19 is a highly contagious respiratory illness. It is transmitted between

15 persons in close proximity (within about six feet) by airborne droplets released by infected

16 individuals when they cough, sneeze, speak, or breathe.20 The droplets can survive in the air for up

17

18 16 See World Health Org., Coronavirus disease (COVID-19) Pandemic (last visited July 28, 2020) https://www.who.int/emergencies/diseases/novel-coronavirus-2019.
19 17 See Ctrs. Disease Control & Prevention, Cases in U.S. (last visited July 28, 2020),
20 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.

21

18 Luke Money, California Has Most Covid-19 Cases in U.S., Surpassing New York, As Spike Continues, Los Angeles Times (July 22, 2020, 9:53 a.m.),

22 https://www.latimes.com/california/story/2020-07-22/california-has-most-covid-19-infections-of-anystate-as-surge-continues.

23 19 Los Angeles Times, Tracking coronavirus in California,

24

https://www.latimes.com/projects/california-coronavirus-cases-tracking-outbreak/ (last visited July 28, 2020, 4:12 p.m.); see also Johns Hopkins University COVID-19 Data Center,

25 https://coronavirus.jhu.edu/ (last visited July 28, 2020); Tulare County Health & Human Services Agency, COVID-19 (Novel Coronavirus) COVID Update July 28, 2020 as of 11:12 AM PDT,

26 https://tchhsa.org/eng/index.cfm/public-health/covid-19-updates-novel-coronavirus/ (last visited July 28, 2020).
27 20 Centers for Disease Control and Prevention, Interim Infection Prevention and Control
28 Recommendations for Healthcare Personnel During the Coronavirus Disease 2019 (COVID-19)

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1 to three hours. It may also be possible for an individual to become infected by touching a surface

2 or object that has the virus on it and then touching his or her own mouth, nose, or possibly eyes.

3 Infected droplets can survive on surfaces for variable lengths of time, ranging from up to four

4 hours on copper, to 24 hours on cardboard, to two to three days on plastic or stainless steel.

5

30. Signs and symptoms of COVID-19 may appear two to 14 days after exposure and

6 may include fever, cough, and shortness of breath or difficulty breathing. Some individuals who

7 have survived the illness—including those with so-called “mild” cases—have experienced fatigue

8 so extreme they cannot get out of bed or walk to the bathroom, and a cough severe enough to

9 prevent sleep. In more serious forms, the individual can experience excruciating pain, days or

10 weeks of fever and chills, uncontrollable diarrhea and inability to keep down food or water, and

11 extremely labored breathing requiring oxygen therapy.21 The virus may lead to acute respiratory

12 distress syndrome, in which fluid displaces the air in the lungs. The sensation of that illness is akin

13 to being drowned.22 The most severe forms require hospitalization and often artificial ventilation

14 to preserve life. The artificial ventilation process is highly invasive.

15

31. Some patients are placed in medically induced comas for such treatment. Some do

16 not survive. The overall case fatality rate has been estimated to range from 0.25 to 3.0%,23 which

17 is 2.5 to 30 times the fatality rate associated with influenza infection.

18

19

20 Pandemic (updated July 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-
21 recommendations.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019 -ncov%2Finfection-control%2Fcontrol-recommendations.html.
22 21 Leah Groth, Is Diarrhea a Symptom of COVID-19? New Study Says Digestive Issues May Be 23 Common With Coronavirus, HEALTH, March 20, 2020,
https://www.health.com/condition/infectious-diseases/coronavirus/is-diarrhea-a-symptom-of24 covid-19
25 22 Lizzie Presser, A Medical Worker Describes Terrifying Lung Failure From COVID-19 — Even in His Young Patients, PROPUBLICA (March 21, 2020), https://www.propublica.org/article/a-medical-
26 worker-describes--terrifying-lung-failure-from-covid19-even-in-his-young-patients.
27 23 Centers for Disease Control and Prevention, Emerging Infectious Diseases, Case-Fatality Risk Estimates for COVID-19 Calculated by Using a Lag Time for Fatality, June 2020,
28 https://wwwnc.cdc.gov/eid/article/26/6/20-0320, article (last visited July 16, 2020).
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1

32. In addition to the short-term risk of death posed by COVID-19, contracting the

2 virus can lead to other serious long-term medical conditions, including cardiovascular disease,

3 permanent reduction of lung function, and damage to organs, including permanent injury to the

4 kidneys and neurologic injury.24 Symptoms may persist for weeks or months after the initial

5 infection.25

6

33. A significant number of infected individuals do not exhibit symptoms. However,

7 asymptomatic individuals—either before the onset of symptoms or because no symptoms will ever

8 manifest—can nevertheless transmit the disease to others. According to the CDC, up to 25% of

9 people infected with COVID-19 will remain asymptomatic. Similarly, infected individuals may

10 experience only mild symptoms. These asymptomatic and mildly symptomatic individuals can,

11 and do, transmit the virus, contributing to its rapid spread. Because of the high risk of transmission

12 by asymptomatic individuals, in early April 2020, the CDC recommended everyone wear a mask

13 in public. Citing similar concerns, on June 18, 2020, California Governor Gavin Newsom ordered

14 all Californians to wear face coverings while in public or while in high risk settings. People who

15 violate this order can be charged with a misdemeanor.26

16

34. There is currently no medical treatment for COVID-19, other than supportive

17 measures. Nor is there a vaccine. Recommended preventive measures to slow the transmission of

18 COVID-19 include: social distancing (keeping persons separated by at least six feet), frequent

19 handwashing, respiratory hygiene (e.g., covering mouth and nose when coughing or sneezing),

20 wearing cloth face coverings, frequent cleansing of surfaces, isolating when ill, and tracing and

21 isolating contacts of people who are infected.

22

23 24 Tian-Yuan Xiong et al., Coronaviruses and the Cardiovascular System: Acute and Long-Term 24 Implications, EURO. HEART J (2020) 41, at pp. 1799-1800.

25

25 Pam Belluck, Here’s What Recovery From Covid-19 Looks Like for Many Survivors, New York Times (July 1, 2020), https://www.nytimes.com/2020/07/01/health/coronavirus-recovery-

26 survivors.html.

26 Phil Wilon, Hannah Fry & Luke Money, Californians Must Wear Face Masks in Public under 27 Coronavirus Order Issued by Newsom, L.A. TIMES (June 18, 2020), 28 https://www.latimes.com/california/story/2020-06-18/california-mandatory-face-masks-statewide-
order-coronavirus-gavin-newsom. -12-
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1

B. COVID-19 is Particularly Dangerous for Medically Vulnerable People

2

35. While COVID-19 threatens everyone, certain individuals are at a heightened risk.

3 Experts believe that older people and those suffering from certain underlying medical conditions

4 are at a higher risk of serious illness or death from the disease.

5

36. According to the CDC, the risk of severe illness from COVID-19 increases with

6 age, with older adults aged 65 and above at highest risk. This age is appropriately reduced to 55

7 for people who are incarcerated. Experts widely agree that because of their high rates of chronic

8 disease, poor previous health care, and histories of drug and alcohol abuse, incarcerated people are

9 physiologically 10 years older than their chronological age. Incarcerated people aged 55 or older

10 face a heightened risk of severe illness or death.

11

37. The CDC has identified people with the following medical conditions as being

12 particularly vulnerable to severe illness from COVID-19, regardless of age: type 2 diabetes

13 mellitus; chronic pulmonary disease; serious heart conditions; sickle cell disease; chronic kidney

14 disease; immunocompromised state from solid organ transplant; and obesity.

15

38. Additionally, the CDC notes that people with the following conditions might be at

16 an increased risk of severe illness from COVID-19: asthma; cerebrovascular disease; cystic

17 fibrosis; hypertension or high blood pressure; immunocompromised state from blood or bone

18 marrow transplant, immune deficiencies, HIV, use of corticosteroids, or use of other immune

19 weakening medicines; neurologic conditions, such as dementia; liver disease; pregnancy;

20 pulmonary fibrosis; smoking; thalassemia; and type 1 diabetes mellitus.

21

39. By virtue of their conditions, people falling in any of the categories discussed in the

22 preceding two paragraphs (collectively, the “Medically Vulnerable”) are particularly vulnerable to

23 the dangers of COVID-19 and require precautionary measures responsive to their heightened risk.

24

C. Correctional Facilities are Uniquely Primed for Viral Outbreak.

25

40. The risk of exposure to and transmission of infectious diseases, as well as the

26 potential harm to those who become infected, is significantly higher in jails than in the

27 community, putting jail inmates and correctional staff at high risk of becoming ill with COVID-

28 19.

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1

41. Correctional facilities like the Tulare County Jails face a significant risk for rapid

2 and deadly spread of COVID-19. Several factors contribute to this risk. Correctional facilities are

3 congregate environments where people live and sleep in close proximity. They are designed not

4 for reducing infection, but for maximizing security by grouping many people into a confined

5 space—an arrangement antithetical to social distancing. Correctional facilities often provide

6 insufficient medical and hygiene supplies, such as soap, hand sanitizer, and face coverings.

7 Incarcerated people are subject to frequent internal movement—between housing units, to

8 congregate eating areas, through commissary, laundry, and medication lines, and even to and from

9 other jails—which facilitates rapid disease transmission.

10

42. Correctional officers, like sheriff’s deputies, and other correctional facility staff

11 routinely have direct physical contact with incarcerated people, especially when handcuffing or

12 removing handcuffs from incarcerated people who are entering, exiting, or moving throughout the

13 facility. Staff also move around within the facility, which creates opportunities for transmission

14 both among staff in different parts of the facility and transmission to and from incarcerated people

15 in different parts of the facility.

16

43. Additionally, compared to the general population, correctional facilities house a

17 disproportionate number of Medically Vulnerable persons. Incarcerated populations have high

18 rates of chronic illnesses such as diabetes, respiratory illness, and heart disease that increase the

19 risk of serious illness from COVID-19. People often arrive at jails or prisons with poor or absent

20 prior health care, alcohol or drug abuse, and other factors that further heighten the risk of

21 contracting or dying from the disease. Thus, not only is COVID-19 more likely to spread in

22 correctional facilities, but the consequences of viral outbreak are more severe than among

23 healthier populations.

24

44. Viral outbreaks in jails and prisons have serious public health ramifications, which

25 extend far beyond the incarcerated population. Because people—staff, residents, contractors,

26 community members, and others— constantly cycle in and out of correctional facilities, there is an

27 ever-present risk that new carriers will bring the virus into the facility—or carry the virus from the

28 facility into the surrounding communities. And incarcerated populations have high turnover, as
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1 people are released while others are continuously admitted to the jail or prison. The revolving door

2 creates an ever-present risk that persons, including asymptomatic carriers, will carry the virus into

3 and out of the jail, spread infection, and trigger outbreaks both inside and outside the jailhouse

4 walls. Thus, viral outbreaks in jails and prisons also pose a significant threat to the surrounding

5 communities. Put simply: “Prison health is public health.”

6

45. Even if correctional institutions screen outsiders, including staff and visitors, for

7 symptoms of COVID-19, that will not stop the introduction of COVID-19 from the outside

8 because COVID-19 can be spread before an infected individual shows symptoms. Indeed, research

9 suggests that up to 25% of people infected with COVID-19 will remain totally asymptomatic.

10

46. The devastating impact of COVID-19 on United States’ correctional facilities has

11 already been felt throughout the country. Prisons in Iowa, Kentucky, and North Carolina are

12 experiencing serious COVID-19 outbreaks. Outbreaks in the Cook County Jail in Chicago and at

13 the Rikers Island Jail in New York were estimated to reflect the highest COVID-19 transmission

14 rates observed anywhere in the world.27 In Ohio, 78% of the approximately 2,500 prisoners at the

15 Marion Correctional Institute tested positive. This outbreak was discovered through mass testing

16 of the entire incarcerated population, suggesting that infection numbers in correctional facilities

17 that have not implemented universal testing—such as the Tulare County Jails—may be far higher

18 than reported.

19

47. In California, Avenal State Prison and North County Jail in Castaic have recently

20 seen rapid increases in their COVID-19 cases: The New York Times reports that upward of 1,251

21 people in Avenal and more than 1,376 people in North County Jail have tested positive for the

22

23

24

25 27 See Alleen Brown, Inside Rikers: An Account of the Virus-Stricken Jail from a Man Who

Managed to Get Out, Intercept(Apr. 21 2020 7:15 a.m.), 26 https://theintercept.com/2020/04/21/coronavirus-rikersisland-jail-nyc/; Timothy Williams &

27

Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars, N.Y. Times, Apr. 8, 2020; updated Apr. 23, 2020), https://www.nytimes.com/2020/04/08/us/coronaviruscook-

28 county-jail-chicago.html.

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1 virus.28 San Quentin prison is currently facing the third largest coronavirus outbreak in the United

2 States. Since the first case of COVID-19 was reported in the prison nearly six weeks ago, 2,000

3 people, more than half of the incarcerated people and staff, have tested positive for the virus, and

4 at least ten have died. In the federal Lompoc prison complex, a recent outbreak of COVID-19 has

5 killed four incarcerated people and infected more than 1,000 others.29

6

48. Officials and courts have recognized the need for drastic action to address the

7 rapidly escalating crisis in prisons and jails. California Governor Gavin Newsom has directed the

8 California Department of Corrections and Rehabilitation (“CDCR”) to release as many as 8,000

9 California state prisoners in an unprecedented attempt to stop the spread of COVID-19 inside state

10 prisons.30 Many cities, including San Francisco, Chicago, Cleveland, and New York, are also

11 releasing prisoners to reduce the risk of COVID-19.

12

49. Courts likewise continue to grapple with the acute and serious danger COVID-19

13 poses in correctional facilities. On July 14, 2020, a judge on the United States District Court for

14 the Central District of California ordered federal prison authorities to begin transferring Medically

15 Vulnerable incarcerated people at Lompoc’s prison complex to home confinement to prevent

16 further illness.31 Courts in other jurisdictions have also issued orders requiring the release of

17

18

19 28 New York Times, Coronavirus in the U.S.: Latest Map and Case Count,
20 https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (last visited July 28, 21 2020).
29 See Federal Bureau of Prisons: COVID-19 Cases, https://www.bop.gov/coronavirus/ (last 22 visited July 28, 2020); Richard Winton, Judge Orders Release of Vulnerable Inmates at Lompoc 23 Prisons Hit by Virus, Los Angeles Times (July 22, 2020, 2:39 p.m.),
https://www.latimes.com/california/story/2020-07-22/judge-orders-release-some-lompoc-prison24 inmates.

25 30 See California to Release 8,000 Prisoners in Hopes of Easing Coronavirus Crisis, Los Angeles Times, July 10, 2020, https://www.latimes.com/california/story/2020-07-10/california-release-
26 8000-prisoners-coronavirus-crisis-newsom

27

31 See Torres, et al. v. Milusnic, et al., Case No. CV 20-4450-CBM-PVC(x), 2020 WL 97285 (C.D. Cal. July 14, 2020), Order re: Plaintiff-Petitioners’ Motion for Preliminary Injunction, and

28 Ex Parte Application for Provisional Class Certification.

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1 incarcerated people and major adjustments to facility protocols and practices in an effort to reduce

2 the risk posed by COVID-19.32

3 II. Defendant Has Failed to Address the Threat Posed by COVID-19, Subjecting People

4

Incarcerated in Tulare County Jails to Imminent Danger of Serious Illness or Death

5

from the Virus.

6

A. Defendant Has Failed to Provide Necessary Personal Protective Equipment to

7

Staff and Incarcerated People.

8

50. Incarcerated people are not permitted to wear masks while housed in Tulare County

9 Jails. This policy is intentional and explicit: TCSO deputies have told incarcerated people

10 specifically they cannot wear masks in Tulare County Jails.

11

51. Incarcerated people have not been given personal protective equipment, including

12 masks, even after numerous requests. Nor are they permitted to wear masks of their own making.

13 TCSO staff denied one individual’s mask request while he was being treated in a medical facility

14 in Defendant’s custody, even though other patients near him had COVID-19. Others began

15 repeatedly asking for masks after there were confirmed cases of COVID-19 in the Jails, but those

16 requests likewise have been ignored.

17

52. Other individuals report being given masks before their court appearances. After

18 court, however, TCSO deputies promptly collect the masks, warning that a failure to return the

19 masks will result in disciplinary action. When one person tried to keep his mask, TCSO deputies

20 took it and gave him a disciplinary infraction. As retaliation for trying to keep a mask, TCSO

21 deputies now keep him locked in his cell all day.

22

53. Similarly, a TCSO deputy told Plaintiff Levi Johnson, who was returning from a

23 medical appointment, that he had to throw his mask away. The deputy said “I wish I could allow

24 you to keep your mask with you but they [superior officers] want you to throw them away.”

25

26 32 See, e.g., Martinez-Brooks v. Easter, Case No. 3:20-cv-00569 (MPS), 2020 WL 2405350 (D. Conn. May 12, 2020) (granting temporary restraining order requiring warden to speedily identify
27 Medically Vulnerable prisoners appropriate for home confinement and compassionate release); 28 United States v. Salvagno, Case No. 5:02-CR-051 (LEK), 2020 WL 3410601 (N.D.N.Y. Apr. 23,
2020) (ordering release of Medically Vulnerable prisoner). -17-
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1

54. When Plaintiff Adam Ibarra asked a TCSO nurse why incarcerated people were not

2 being given masks, she responded that incarcerated people were not likely to get sick from

3 COVID-19. After being refused a mask by deputies numerous times, Ibarra filed a grievance. In

4 response, he was told “[d]ue to you not reporting any signs and/or symptoms [of COVID-19], your

5 request for personal protective equipment is unapproved at this time.” Ibarra Grievance (Ex. 2 at

6 3). He has not been permitted to wear a mask since, except while in court for court appearances.

7

55. Plaintiff Samuel Camposeco also filed a grievance after being denied a mask. The

8 answer he received was even more direct: “At this time no inmates are being provided PPE

9 masks.” Camposeco Grievance (Ex. 3 at 1). On appeal, Camposeco received the same response as

10 Ibarra: “[d]ue to you not reporting any signs and/or symptoms [of COVID-19], your request for

11 personal protective equipment … is unapproved at this time.” Id. at 2.

12

56. In response to Defendant’s utter refusal to provide protective masks or other

13 protective equipment, Camposeco and others have begun making their own masks. But as soon as

14 the deputies spot them, the masks are whisked away. Camposeco has sometimes been given masks

15 to wear in court, but those masks are quickly confiscated following his court appearance. TCSO

16 deputies have continued to tell Camposeco that incarcerated people are not allowed to wear masks

17 in Tulare County Jails.

18

57. TCSO deputies have taken masks away from the Medically Vulnerable, including

19 Plaintiff Levi Johnson. Moreover, there have been many instances in which TCSO staff (including

20 deputies, nurses, and food workers) and outside volunteers have interacted with incarcerated

21 people, including the Medically Vulnerable, without wearing masks.

22

58. Nor do the deputies themselves regularly wear masks while working in the Jails.

23 When one individual told Defendant’s deputies that they should be wearing masks, the deputies

24 mimicked coughing noises at him.

25

59. Even kitchen workers have been refused the use of masks while they work. When

26 these incarcerated food workers pass out meal trays, their faces come in close contact to the food

27 and dishware. One individual asked a deputy for a grievance form to report this issue. The deputy

28 told him that the issue was not grievable and refused to give him a form.
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1

B. Defendant Refuses to Provide COVID-19 Tests—Or Timely Medical Care—

2

To People Incarcerated in Tulare County Jails.

3

60. Defendant has refused to test incarcerated people for COVID-19 in Tulare County

4 Jails, including the Medically Vulnerable. It is difficult even in the best of times for people

5 incarcerated in Tulare County Jails to get a medical appointment. Merely securing a sick call

6 slip—the form to request a medical visit—requires multiple requests to the nursing staff. Once

7 that’s done, it can take up to a week to get a medical appointment—which then typically lasts only

8 a few minutes. Nothing has improved since the pandemic began, and incarcerated people do not

9 have access to necessary COVID-19 testing or medical treatment.

10

61. When incarcerated people request a COVID-19 test, the deputies and nursing staff

11 refuse them. Jail staff have denied COVID-19 testing requests even if the incarcerated person

12 making the request has exhibited COVID-19 symptoms, or has been in close contact with other

13 incarcerated people who have exhibited COVID-19 symptoms.

14

62. When people ask Tulare County Jails’ nursing staff why they cannot be tested for

15 COVID-19 despite exhibiting symptoms or suffering a likely exposure, the nurses reply that

16 Defendant does not test incarcerated people in Tulare County Jails.

17

63. For example, in late May, Plaintiff Camposeco began to feel sick. He became

18 concerned when others on his unit also developed flu-like symptoms—he was surrounded by a

19 daily din of coughing. Yet despite the obvious need in the unit, TCSO staff refused to give him a

20 coronavirus test. When Camposeco filed a grievance in protest, deputies appeared more troubled

21 with how he’d found the form than with the egregious lack of testing.

22

64. Another person reported having flu-like symptoms since the beginning of July,

23 including chills, a cough, body aches, and a likely fever—although without access to a

24 thermometer, he cannot be sure. When he sought care from TCSO nursing staff, the nurse did

25 nothing but check his tonsils and give him a couple of Tylenols. She categorically refused a

26 coronavirus test. Despite continuing to experience symptoms, he has received no further medical

27 care.

28
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1

65. Yet another person, who cleaned cells in one of the Jails’ intake units, repeatedly

2 asked for COVID-19 testing due to his increased exposure to newly-booked individuals—

3 including those who tested positive for the virus. He was told that he would have to wait for his

4 release to be tested for COVID-19.

5

C. Defendant Refuses to Quarantine New Intakes or Implement Appropriate

6

Quarantine Measures in the Housing Units

7

66. Defendant does not quarantine people newly booked into Tulare County Jails upon

8 their admission to the jail. Sick people with obvious flu-like symptoms are sent straight to the

9 regular housing units after booking. One individual reports that while he was incarcerated, newly-

10 booked individuals—including those with a cough or a sore throat—were assigned straight to his

11 housing unit, without any quarantine period (or testing) whatsoever.

12

67. Similarly, incarcerated people who show COVID-19 symptoms in their cramped

13 housing units often remain in their units, unquarantined, where they mingle with other

14 incarcerated people in their cells or dorms, on the yard, in the showers, or in other common areas.

15 These individuals, if positive, continue to expose others in their unit—including the Medically

16 Vulnerable—to COVID-19.

17

68. Nor does Defendant quarantine individuals before transferring them to new housing

18 units. Plaintiff Campseco reports that significant numbers of people have been transferred into his

19 unit in Bob Wiley Detention Center from units all over the jail—without any quarantine period

20 between moves. Now, he says, his unit is almost completely full, crowded with individuals of

21 unknown prior exposure.

22

D. Defendant’s Policies Actively Prevent Incarcerated People from Practicing

23

Social Distancing.

24

i. Despite Available Space, Incarcerated People are Crammed Together

in Crowded Housing Units.

25

69. It is nearly impossible for incarcerated people in Tulare County Jails to socially

26

distance in their cells, units, or both.

27

28
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1

70. In one Bob Wiley women’s unit, for example, bunk beds are placed only three feet

2 apart, with approximately three feet between the top bunk and the lower bunk. Every lower bunk

3 is occupied, meaning each person sleeps only three feet apart from the next. This layout makes it

4 impossible for anyone to maintain more than three feet of distance—at the most—from anyone

5 else. What’s worse, the unit is only half-full, but rather than spacing people out across the unit so

6 individuals could sleep more than three feet apart, Defendant closed four of the eight total

7 “houses,” and crowded everyone into the remaining four.

8

71. Plaintiff Charles Criswell is housed in Main Jail Unit 222, a dorm-like setting with

9 15 other incarcerated people housed in bunk beds. Each double bunk bed is about two feet away

10 from the next, and all the beds are full. He spends nearly all of his time in close proximity to the

11 other people in his unit. No one can socially distance in this setting. Many other incarcerated

12 people, housed in units across Tulare County Jails, report similar conditions: closely-spaced bunks

13 and full or nearly-full units, despite the fact that the Jails themselves are below-capacity.

14

72. Others report being housed together in a nearly-full men’s unit, stocked with two-

15 person cells that make it impossible for cellmates to socially distance from one another. Cellmates

16 share a common bunk bed, toilet, and sink. Every day, deputies line up all the people housed in the

17 unit next to each other—so close they are nearly touching—for a routine search. Even in non-

18 dormitory settings, Defendant’s policies make it effectively impossible for the individuals

19 incarcerated in his Jails to practice responsible social distancing.

20

ii. Incarcerated People Also Cannot Practice Social Distancing When

They Leave Their Cells or Housing Units

21

73. Whether on the yard or in a dayroom, it is impossible as a practical matter for

22

individuals to practice social distancing. Not only are those spaces small and cramped, the phones

23

are close together, meaning the lines to speak are tightly packed. The phones are not cleaned

24

between uses.

25

74. Programs run by non-incarcerated volunteers have continued to operate in Tulare

26

County Jails during the COVID-19 pandemic, but Defendant has failed to provide any policy on

27

social distancing with respect to these programs. For example, incarcerated people who

28

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1 participated in a volunteer-run religious program during the pandemic sat side-by-side on a picnic-

2 like table in a small room.

3

75. When incarcerated people are searched or transported to work sites, court, or both,

4 they are placed in small holding cells and crowded trailers and vans with incarcerated people from

5 other units and Jails, sometimes elbow-to-elbow. Not only has Defendant refused to implement a

6 plan for social distancing among incarcerated people, but his policies make it impossible for them

7 to do so of their own accord.

8

E. Tulare County Jails Remain in Filthy Condition Because Defendant has Failed

9

to Provide Proper Cleaning and Hygiene Supplies.

10

76. Defendant has not implemented an adequate sanitation policy in Tulare County

11 Jails. Despite the well-known importance of sanitation to combat the COVID-19 virus,

12 incarcerated people have not been given adequate amounts of personal hygiene or other cleaning

13 supplies in Tulare County Jails.

14

77. Individuals incarcerated in Tulare County receive only one small bar of soap a

15 week—at best, every few days—for all their sanitation needs. These small bars of soap do not last

16 more than a day, which means people regularly go without soap several days a week. Nor does

17 Defendant provide hand sanitizer, or other personal disinfectants.

18

78. Showers are communal, shared by numerous people who all must bathe one after

19 the other. In one women’s unit, for example, there are only three showers, shared by 30 people.

20 Twelve people share a single toilet.

21

79. Defendant has also failed to provide incarcerated people with a consistent supply of

22 cleaning materials to disinfect their cells and other surfaces. When rats, birds, and insects

23 inevitably make their way into the already-unclean units, the floors, drinking fountains, and other

24 areas become crusted with feces and refuse. Despite the pandemic, many incarcerated people have

25 not been able to keep their units clean and sanitized, due to Defendant’s refusal to consistently

26 provide adequate cleaning supplies.

27

80. Outside of the incarcerated people’s units, common spaces like dayrooms, attorney

28 meeting rooms, holding rooms, and phone booths, including the phones themselves, are not
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1 disinfected regularly or between uses, and incarcerated people are not given cleaning supplies to

2 clean these common spaces and surfaces themselves.

3

81. Deputies do not observe appropriate hygiene when interacting with incarcerated

4 people. Deputies will pat down several different incarcerated people in a row, all with the same

5 pair of rubber gloves. Others will handcuff several different people with the same pair of

6 handcuffs without disinfecting the handcuffs in between uses.

7

82. What’s more, incarcerated people have not been educated on how to prevent the

8 spread of COVID-19. There are no signs or flyers in the jail instructing incarcerated people on

9 how to protect themselves from the virus. Worse, when the TV news begins broadcasting stories

10 or information about COVID-19, TCSO deputies turn off the television. Deputies have also cut

11 out articles about COVID-19 from newspapers before delivering them to incarcerated people.

12

F. Defendant Has Retaliated Against Incarcerated People Who Challenge the

13

Unconstitutional Conditions of Confinement at Tulare County Jails.

14

83. It is not enough for Defendant to leave people incarcerated in his jails helpless to

15 protect themselves from COVID-19. Defendant has also embarked on a retaliation campaign

16 against those individuals who have looked to outside counsel for help.

17

84. Incarcerated people have filed grievances regarding Defendant’s refusal to provide

18 masks to incarcerated people or to require his staff to wear masks; to test incarcerated people for

19 COVID-19; to provide adequate soap, hand sanitizer, and cleaning supplies; and to release any

20 incarcerated people to home confinement to prevent the spread of COVID-19.

21

85. In many cases, TCSO staff simply do not respond. Often, staff refuse even to

22 provide incarcerated people with grievance forms. And TCSO deputies have retaliated against and

23 intimidated those incarcerated people who have filed grievances, making them and others unlikely

24 to file grievances in the future.

25

86. One individual was moved to a maximum security unit after talking to an ACLU

26 investigator. He asked the deputies several times for a grievance form so that he could challenge

27 the retaliatory move. The deputies asked him why he wanted the form, and he responded that he

28 wanted to grieve his classification and security level changes. Yet the deputies refused to give him
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1 a grievance form. They told him that his security level change was not a grievable issue even

2 though security classification is a well-established grievable issue.33

3

87. When another individual asked for a grievance form to report deputies’ practice of

4 patting down incarcerated people without changing gloves, he was told that issues about COVID-

5 19 in Tulare County Jails were not grievable. He was informed that if he grieved the COVID-19

6 response, he would be given a disciplinary infraction or have this security classification raised.

7 III. Despite the Clear and Obvious Danger That COVID-19 Poses to Incarcerated People

8

in Tulare County Jails, Defendant Has Refused to Protect Them.

9

A. Defendant Not Only Refuses to Provide Face Coverings to Incarcerated

10

People, His Policy Explicitly Forbids Incarcerated People from Wearing Face

11

Coverings in the Housing Units.

12

88. Experts recommend that people, including incarcerated people, wear cloth face

13 coverings to prevent the spread of COVID-19.

14

89. The CDC recommends that all staff and incarcerated people in correctional

15 facilities be encouraged to wear a mask as frequently as possible.34 The CDC also recommends

16 that correctional facilities provide masks at no cost, and recommends that facilities launder masks

17 regularly. The CDC recommends that correctional facilities explain policies regarding the use of

18 masks to staff and incarcerated people, including when more protective gear may be appropriate.

19

90. Defendant has released no public policies on masks or other personal protective

20 equipment (“PPE”) in Tulare County Jails. Experiences of people incarcerated in Tulare County

21 show that Defendant has no evidence-based, updated, and comprehensive policies on masks or

22 other PPE in Tulare County Jails.

23

24

25 33 See, e.g., In re Martinez, 242 Cal. App. 4th 299, 307 (2015) (sustaining habeas corpus challenge 26 to classification as a gang member).
34 CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in 27 Correctional and Detention Facilities (updated July 22, 2020), 28 https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-
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1

91. In fact, Defendant has explicitly forbidden incarcerated people from wearing

2 masks. His policy persists to this very day, despite the CDC’s recommendation—in April—that all

3 people wear masks when they leave their home, and Governor Newsom’s June mandate requiring

4 all Californians to do so.

5

92. Defendant apparently understands the virtues of masking for the non-incarcerated

6 population. Indeed, he has extolled the virtues of mask-wearing to the general public: On July 3,

7 2020, Defendant announced on Facebook a new campaign, “MASK UP Tulare County,” seeking

8 to raise awareness about the importance of masks. The campaign directs TCSO deputies to

9 provide masks and an educational pamphlet whenever they see people in public without masks.35

10 As Defendant said, “The people of Tulare County have always taken care of each other. And we

11 are asking you to continue to do that now, by wearing masks, practicing good hygiene, and, of

12 course, social distancing.” Defendant has categorically refused to extend that protection to the

13 people incarcerated in his jails.

14

93. As Defendant himself recognizes, masks are necessary to combat COVID-19

15 effectively. For Californians outside of Tulare County Jails’ walls, it is a crime not to wear a mask

16 in public. Inside, wearing a mask is grounds for discipline. Defendant’s refusal to provide personal

17 protective equipment, including masks, to the people incarcerated in his Jails demonstrates a gross

18 and deliberate indifference to their health.

19

B. Defendant Has No Coherent Testing Policy, Despite an Active Outbreak of

20

COVID-19 in the Jails.

21

94. Experts warn that “[i]n the absence of an effective vaccine, one of the most

22 powerful tools we have in containing the spread of COVID-19 within facilities is testing.”

23 “[T]esting is critical for COVID-19 prevention and control” because “it allows people who are

24 diagnosed with COVID-19 to be medically isolated.”

25

26

27

35Tulare County Sherriff’s Office: Mask Up Tulare County!, Facebook (July 3, 2020, 11:29 a.m.) https://www.facebook.com/TulareSheriff/videos/3207308699315349/?comment_id=39719522462

28 09111

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1

95. The CDC recommends testing for all symptomatic individuals, and all

2 asymptomatic individuals who are close contacts of symptomatic individuals.36

3

96. The CDC recommends that correctional and detention facilities consider testing all

4 newly incarcerated people before they join the facility’s population and all people who have left

5 the facility and have since returned.37 Other recommended approaches for testing in correctional

6 and detentions facilities include an initial test of everyone who resides or works in the facility and

7 regular (or weekly) testing of all people living or working in that facility.

8

97. Testing is important because relying simply on symptoms offers an incomplete

9 picture of the prevalence of COVID-19. Many symptoms related to COVID-19 are not easily

10 observable, and incarcerated people may not be aware that they are experiencing symptoms of

11 COVID-19. Moreover, many individuals who are asymptomatic are still carriers of the virus,

12 meaning any symptom-based screening protocols will fail to identify them.

13

98. Defendant has released no public testing policies for COVID-19 in Tulare County

14 Jails. Nor have Plaintiffs observed from within the Jails any sort of comprehensive testing plan.

15 Defendant apparently has no evidence-based, up-to-date, comprehensive COVID-19 testing

16 policies for the Tulare County Jails. Any limited policies that Defendant may have are not only

17 inadequate to address—or even assess—the scale of the problem, but they also are only

18 sporadically enforced.

19

99. Defendant is well aware of the dire need for testing in Tulare County Jails. In fact,

20 on July 1, 2020, the Presiding Judge of the Tulare County Superior Court wrote a letter to the

21 Tulare County Board of Supervisors asking the County, among other things, to test all

22 incarcerated people in Tulare County Jails. Presiding Judge Alldredge emphasized that widespread

23 testing was necessary to gauge the spread of the virus in the Jails, given the at least twelve

24

25
26 36 CDC, Interim Considerations for SARS-CoV-2 Testing in Correctional and Detention Facilities (updated July 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-
27 detention/testing.html.
28 37 Id.
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1 individuals in the Jails who had already tested positive and the “alarming rate” of new COVID-19

2 deaths in Tulare County.38

3

100. In keeping with Defendant’s approach, the County flatly refused to conduct

4 widespread testing in the Jails.39

5

101. Defendant’s refusal to implement reasonable testing policies ignores a potentially

6 deadly risk of infection to incarcerated people in Tulare County Jails and constitutes deliberate

7 indifference to the serious medical needs of Plaintiffs and the class they seek to represent. And it

8 places the Medically Vulnerable in an especially precarious position, making it impossible for

9 them to identify and isolate from potential carriers.

10

C. Defendant has Prevented Incarcerated People from Practicing Social

11

Distancing, One of the Most Important and Simplest Methods of Preventing

12

the Spread of COVID-19.

13

102. Social distancing has been defined by the CDC as the “cornerstone of reducing

14 transmission of respiratory diseases such as COVID-19.” While true social distancing is nearly

15 impossible in correctional facilities, the CDC recommends certain strategies for keeping

16 incarcerated people safe from COVID-19.40 Defendant has implemented none of them.

17

103. Defendant has refused to take even limited steps to ensure the health and safety of

18 incarcerated people. For example, in-unit, Defendant can reassign and rearrange bunk beds to

19 provide 6 feet of space; arrange bunk beds so that individuals sleep head to toe; and schedule

20 movements to limit the mixing of people.41 Outside the unit, Defendant can rearrange common

21
22 38 Ex. 1 at 1. We now know, based on more recent reports, that the number of positive tests was even higher: 22 incarcerated people tested positive for COVID-19, out of only 139 total tests. See
23 Tulare County Sherriff’s Office, Facebook (July 28, 2020), https://www.facebook.com/TulareSheriff/posts/4081234765280858.
24 39 Id. at 3.
25 40 CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in 26 Correctional and Detention Facilities (updated July 22,2020),
https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance27 correctional-detention.html
28 41 Id.
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1 areas to create increased space between people, limit the size of group activities, stagger meal

2 times, and modify work details.42

3

104. On April 30, 2020, Defendant acknowledged that “the population in the jails is at

4 almost half of the total capacity.” Yet Defendant has refused to implement the measures, outlined

5 above, that would increase the protective space surrounding incarcerated people, citing budget

6 constraints. Instead, Defendant has insisted on closing down certain dormitories and cells within

7 the units, leaving those that remain in use at their full, packed capacity.

8

105. The ongoing crowding in the Jails makes clear that Defendant has no

9 comprehensive policy on social distancing—despite it being one of the simplest and most effective

10 strategies to prevent COVID-19 transmission. Prioritizing cost savings over the lives and health of

11 incarcerated people is deliberate indifference to the real threat that COVID-19 poses to their

12 health.

13

D. Defendant Does Not Adequately Screen Incarcerated People or Staff for

14

COVID-19 Symptoms, and Does Not Quarantine Newly-Booked Individuals,

15

Increasing the Risk that COVID-19 Will Spread Undetected Through Tulare

16

County Jails.

17

106. The CDC recommends that all staff working in correctional facilities undergo daily

18 verbal symptom screenings and temperature checks when arriving at work.43

19

107. The CDC recommends that if any incarcerated people or staff members are found

20 positive for COVID-19 anywhere in a facility, officials should consider performing regular

21 symptom screenings and temperature screenings on all employees and incarcerated people—even

22 if they are located in housing units where infections have not yet been identified.44

23

24 42 Id.
25 43 CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in 26 Correctional and Detention Facilities(updated July 22, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance27 correctional-detention.html
28 44 Id.
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1

108. On information and belief, Defendant has not implemented any CDC-compliant

2 screening policies, whether for staff or incarcerated people. Indeed, as reports from incarcerated

3 people show, when they do exhibit symptoms they are refused testing and sent back to their cells

4 without meaningful medical treatment.

5

109. CDC guidelines recommend testing and quarantining newly incarcerated people for

6 a period of 14 days before introducing them to the general population.45

7

110. Similarly, experts agree that new intakes should not be introduced into the general

8 population until they have been quarantined for a period of 14 days. If single cells are not

9 available, experts recommend cohorting new arrivals by arrival date in a setting where they can

10 maintain social distancing.

11

111. Reports from incarcerated people show that, despite well-publicized CDC

12 guidelines, Defendant continues to introduce newly booked individuals directly into the general

13 population.

14

112. The failure to institute symptom screening mechanisms for staff and incarcerated

15 people, and quarantine protocols for newly-booked individuals, allows the virus to spread through

16 the Jails undetected, carried by symptomatic and asymptomatic individuals alike.

17

E. Defendant Has Not Provided Incarcerated People With Adequate Hygiene

18

Supplies and Has Not Maintained Sanitary Conditions.

19

113. Aggressive decontamination and cleaning strategies are a crucial part of combating

20 COVID-19.

21

114. At a minimum, incarcerated people must be provided with cleaning supplies and

22 personal hygiene equipment. This includes, under the CDC recommendations, a free supply of

23 liquid soap where possible (liquid soap is more effective than bar soap).46

24

25

26

27 45 Id.
28 46 Id.

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1

115. Defendant has no policy requiring that incarcerated people be provided with the

2 supplies that they need to combat the spread of COVID-19. Defendant’s policies and measures are

3 not adequate to maintain sanitary conditions in the Jail.

4

F. Despite Defendant’s Refusal to Implement Social Distancing Measures,

5

Defendant Has Opposed Releases at Every Turn.

6

116. Releases are a crucial part of any COVID-19 response strategy. Overcrowding in

7 jails and prisons makes implementing crucial protective measures in prisons difficult. Releases are

8 necessary to reduce populations to a point where protective measures can be implemented.

9 Depopulation is an evidence-based and effective strategy at reducing the incidence of COVID-19

10 in a detention setting.

11

117. Recognizing the important role that releases play in COVID-19 prevention efforts,

12 jurisdictions around the world and in the United States have taken decisive action to save lives in

13 correctional facilities and in the community at large. Germany released “1,000 prisoners who are

14 close to the end of their sentences”; Canada released “1,000 inmates in the state of Ontario”; and

15 Iran “temporarily release[d] 85,000 prisoners, with 10,000 of them being granted pardons.”47

16

118. Closer to home, Governor Gavin Newsom has ordered the release of as many as

17 8,000 state prisoners to address COVID-19’s devastating impact in the state’s prisons.48 And

18 California is not alone in its efforts. As early as March, the New Jersey Supreme Court entered an

19 order releasing as many as 1,000 people from its jails, and New York City also began releasing

20 more than 1,000 people from its jails.49 Cuyahoga County, Ohio, announced plans to rapidly

21

22

47 Luke Baker., Lock ‘Em Up or Let ‘Em Out? Coronavirus Prompts Wave of Prisoner Releases, REUTERS (March 25, 2020), https://www.reuters.com/article/us-health-coronavirus-prisoners-

23 released/lock-em-up-or-let-em-out-coronavirus-prompts-wave-of-prisoner-releasesidUSKBN21C38R.
24 48 See John Myers, California to Release 8,000 Prisoners in Hopes of Easing Coronavirus Crisis, Los 25 Angeles Times (July 10, 2020), https://www.latimes.com/california/story/2020-07-10/california-
release-8000-prisoners-coronavirus-crisis-newsom.

26 49 Tracey Tully, 1,000 Inmates Will Be Released From N.J. Jails to Curb Coronavirus Risk, N.Y.

27 Times (March 23, 2020) https://www.nytimes.com/2020/03/23/nyregion/coronavirus-nj-inmatesrelease.html?action=click&module=Latest&pgtype=Homepage; NYC to Release More Than 1,000
28 Prison Inmates Due to Coronavirus Concerns, Assoc. Press (March 25, 2020),

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1 release around 600 people from the county jail just two days after President Trump declared a

2 national emergency; Washington County, Oregon, released more than 120 people from the local

3 jail; the Iowa Department of Corrections began to release 700 people from state prisons; Mercer

4 County, Pennsylvania, released 60 of 308 people in their jail.50

5

119. These depopulation efforts save lives: Corrections experts recognize that major

6 population reductions, together with aggressive, responsive prevention measures, are necessary to

7 protect incarcerated people, correctional officers, and the community at large from COVID-19.

8 Despite actual knowledge of the risk posed by COVID-19 and the appropriate responses available

9 to mitigate that risk, Defendant has failed to take these common sense and necessary steps—and

10 he has loudly decried efforts to reduce populations in jails and prisons. In Defendant’s simplistic

11 view: “Those inmates in our facilities are in there for a reason.”51

12

120. If a municipality cannot provide, or cannot afford to provide, adequate social

13 distancing in Jails, it should release people—at the very least, it should consider releasing those in

14 greatest danger from the virus, the Medically Vulnerable, to home confinement—until social

15 distancing becomes possible. Failure to do so is deliberate indifference.

16

121. California law provides Defendant clear authority to implement this lifesaving

17 measure. California Government Code section 8658 expressly authorizes him to protect

18 incarcerated people “endanger[ed]” by the COVID-19 pandemic by “remov[ing] them to a safe

19 and convenient place” for the duration of the emergency. Gov’t Code § 8658.

20

21

22 https://www.syracuse.com/coronavirus/2020/03/nyc-to-release-more-than-1000-prison-inmates-

23 due-to-coronavirus-concerns.html. 50 Kimberly Kindy et al., ‘Disaster Waiting to Happen’: Thousands of Inmates Released as Jails
24 and Prisons Face Coronavirus Threat, Washington Post (Mar. 25, 2020, 3:00 a.m. PDT),

25 https://www.washingtonpost.com/national/disaster-waiting-to-happen-thousands-of-inmatesreleased-as-jails-face-coronavirus-threat/2020/03/24/761c2d84-6b8c-11ea-b313-

26 df458622c2cc_story.html

27

51 Reggie Ellis, State Rule Allows Inmates to Walk Free for Free, Sun Gazette (April 22, 2020, 7:52 a.m.), https://thesungazette.com/article/news/2020/04/22/state-rule-allows-inmates-to-walk-

28 free-for-free/.

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1

122. Defendant is aware of his authority under Section 8658. On April 14, 2020, Edward

2 Medrano, Chief Division of Law Enforcement for the California Department of Justice, issued a

3 memorandum to all County Sheriffs, including Defendant, reminding them of their Section 8658

4 authority.52 The memorandum notified Sheriffs that Section 8658 applies to the COVID-19

5 pandemic and provides a tool for responding to the risk of viral outbreak within confinement

6 facilities.

7

123. Defendant has conceded that incarcerated people cannot practice social distancing

8 in Tulare County’s Jails. But although Defendant has the power to protect Medically Vulnerable

9 incarcerated people by releasing them to home confinement for the duration of the pandemic, he

10 has vehemently and staunchly refused to consider any releases, including any releases pursuant to

11 Section 8658.

12

124. In April, the Tulare Superior Court ordered Defendant to release a few dozen

13 nonviolent offenders. Although Defendant ultimately complied with the order, he did so with

14 marked reluctance. On social media, Defendant expressed strong opposition to releases in any

15 form because of COVID-19. A spokeswoman for Defendant said: “[r]eleasing inmates is not Sheriff

16 Boudreaux’s first line of defense against the coronavirus.”53 And in May, Defendant accused those

17 who support releasing incarcerated people due to COVID-19 of advancing a political agenda

18 “beyond the scope of need.”54

19

125. Defendant’s failure even to consider the release of Medically Vulnerable people

20 constitutes deliberate indifference to a substantial risk to the health and safety of the Medically

21 Vulnerable subclass that Plaintiffs seek to represent.

22

G. Defendant’s Response to COVID-19 Lacks Any Transparency.

23
24 52 Information Bulletin from Edward Medrano to All County Sheriffs and Probation Officers (April 14, 2020), https://oag.ca.gov/sites/all/files/agweb/pdfs/publications/2020-dle-05.pdf?
25 53 Daniel Gligich, Tulare Co. Sheriff clarifies he won’t be forced to release inmates quietly, The 26 San Joaquin Sun (April 6, 2020), http://sjvsun.com/news/visalia/tulare-co-sheriff-clarifies-he-
wont-be-forced-to-release-inmates-quietly/. 27 54 Boudreaux expresses his COVID-19 views on Facebook, The Porterville Recorder (May 1, 28 2020), https://www.recorderonline.com/news/boudreaux-expresses-his-covid-19-views-on-
facebook/article_5ec608fa-8bec-11ea-8a40-cb107b5bb2c2.html. -32-
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1

126. CDC guidelines emphasize the importance of transparency in responding to

2 COVID-19: because “limited outside information is available to many incarcerated/detained

3 persons, unease and misinformation regarding the potential for SARS-CoV-2 to spread may be

4 high, potentially creating security and morale challenges.” The guidelines recommend that

5 facilities “create and test communications plans to disseminate critical information to

6 incarcerated/detained persons, staff, contractors, vendors, and visitors as the pandemic

7 progresses.”55

8

127. Experts emphasize the importance of transparency in responding to COVID-19.

9 Without transparency and accurate reporting, it is impossible to tell whether any policies that exist

10 are actually working.

11

128. Transparency is crucial not only to incarcerated people living in the Jails, but also

12 to the surrounding community and individuals seeking to evaluate the efficacy of the Jail’s

13 response to COVID-19.

14

129. Tulare County seemingly recognizes the importance of transparency for non-

15 incarcerated people. Tulare County reports on its website the total number of people who have

16 tested positive for COVID-19 in the general public.56 Tulare County has a website with

17 comprehensive COVID-19 resources for people, including sections providing resources for

18 businesses, workers, people experiencing homelessness, and others.57

19

130. In comparison, Defendant has provided no public information about his COVID-19

20 response within the Tulare County Jails. The County website does not mention incarcerated

21 people or provide resources for understanding conditions in Tulare County Jails. Defendant has

22

23 55 CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in 24 Correctional and Detention Facilities (updated 7/22/2020),
https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance25 correctional-detention.html (last visited July 28, 2020).
26 56 Tulare Cty. Health & Human Servs. Agency, COVID-19 (Novel Coronavirus) COVID -19 Update (July 28, 2020 as of 11:12:43 AM PDT), https://tchhsa.org/eng/index.cfm/public-
27 health/covid-19-updates-novel-coronavirus/ (last visited July 28, 2020).
28 57 Tulare County Coronavirus (COVID-19) Response, https://covid19.tularecounty.ca.gov/ (last visited July 28, 2020). -33-
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1 not published an outbreak control plan, nor has he published information concerning current

2 testing data and COVID-19 response efforts within the Jails. And he has not shared information

3 about the Jail’s response to the pandemic—or any COVID-19 educational materials—with

4 incarcerated people. At every turn, Defendant has obfuscated and hidden from public scrutiny any

5 information about his (lack of a) COVID-19 response.

6 IV. Defendant has Actively Interfered with Incarcerated People’s Access to the Courts.

7

A. Defendant’s Staff Have Retaliated Against Individuals Seeking to Shed Light

8

on Defendant’s Apathetic Response to the Threat of COVID-19 in Tulare

9

County Jails.

10

131. Since counsel began investigating conditions at Tulare County Jails, Defendant has

11 engaged in an intentional campaign to prevent incarcerated people from retaining and

12 confidentially meeting with attorneys to develop a challenge to unconstitutional conditions of

13 confinement in the Jails. Confidential legal visits are crucial to incarcerated people’s ability to

14 exercise their right to meaningfully access the courts and pursue legal recourse. Defendant has

15 actively worked to deny incarcerated people confidential legal visits in violation of their right to

16 access the courts under the First and Fourteenth Amendments.

17

132. In mid-May 2020, an ACLU investigator met with Jeffery Nunes, who at the time

18 was incarcerated at the Adult Pre-Trial Facility. Nunes told the investigator his concerns about the

19 possible spread of COVID-19 in Tulare County Jails. At the end of the conversation, the

20 investigator told Nunes that he would schedule another legal visit to speak with him about his

21 concerns. Shortly afterward, on May 28, 2020, one of the deputies took Nunes out of his cell to

22 question him about his legal visit. The deputy told Nunes that he was cancelling all future legal

23 visits.

24

133. Later that night, another deputy hauled Nunes out of his housing unit to speak with

25 a supervising deputy. Nunes saw that the supervising deputy was wearing a firearm—a fact that

26 concerned Nunes, as it was his understanding that Defendant’s deputies do not carry firearms in

27 the Tulare County Jails. The supervising deputy interrogated Nunes about what he spoke to the

28 ACLU investigator about, whether Nunes had any upcoming meetings scheduled with ACLU staff
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1 or attorneys, and whether Nunes had encouraged other incarcerated people to talk to the ACLU.

2 The supervising officer asked Nunes for the names of other incarcerated people who had talked or

3 were trying to talk to the ACLU. Under duress, Nunes told the supervising deputy that he spoke

4 with the ACLU about conditions in Tulare County Jails. He refused to tell the supervising deputy

5 anything else. This questioning was retaliation, an intimidation tactic employed to interfere with

6 Nunes’ attempt to remedy conditions in Tulare County Jails.

7

134. Following this incident, Nunes became more reluctant to speak to the ACLU. He

8 feared for his safety. He also worried that Defendant’s deputies would retaliate against him,

9 including by finding a way to increase the length of his incarceration.

10

135. Nunes’ fears were confirmed in early June 2020. In retaliation for his conversation

11 with the ACLU investigator, Nunes was moved from his prior job working on the farm at the

12 Adult Pre-Trial Facility to working in the Pre-Trial intake unit as a unit cleaner. The Pre-Trial

13 intake unit is where almost all newly booked incarcerated people in Tulare County Jails are

14 processed. As described above, they are not quarantined. Suddenly, Nunes was put at significantly

15 higher risk of contracting COVID-19.

16

136. Mario Escobar had an initial conversation with an ACLU investigator on May 27,

17 2020. Again, Defendant’s deputies engaged in intimidation and retaliation against Escobar for his

18 effort to exercise his right to access the courts. After his conversation with the ACLU, Defendant’s

19 deputies took Escobar out of his housing unit and demanded to know why he was talking to the

20 ACLU. They pressed him to reveal what he was talking to the ACLU about, including whether

21 they spoke about conditions in Tulare County Jails. Escobar refused to answer their questions.

22 Later, the deputies tried again, pulling Escobar out of his housing unit and questioning him about

23 his conversations with ACLU staff. These multiple rounds of questioning were part of an effort to

24 intimidate Escobar and to prevent him from seeking to remedy issues related to COVID-19 in

25 Tulare County Jails.

26

137. Following his initial conversation, Escobar has tried several times to meet with

27 ACLU staff to discuss his concerns about conditions in Tulare County Jails. But his confidential

28 legal visits have been consistently cancelled by TCSO staff. Escobar has not been able to speak
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1 with ACLU staff except for a few minutes a day on a recorded and non-confidential phone line.

2 Escobar would like to work with ACLU staff on a civil rights case to remedy the unsafe conditions

3 in Tulare County Jails, but Defendant has prevented him from taking his case any further.

4

138. In late May 2020, Brandon Alford scheduled a confidential legal visit with ACLU

5 staff to discuss Defendant’s COVID-19 response. He, too, was met with intimidation from

6 Defendant’s staff. Before Alford had even had a chance to meet (by video) with counsel, TCSO

7 staff took Alford out of his housing unit and interrogated him about what he planned to say to the

8 ACLU. Deputies told Alford that because he refused to talk to the TCSO sergeant about his

9 upcoming confidential legal visit, the video visit was cancelled.

10

139. Shortly after, Alford was transferred to a high-security housing unit with

11 incarcerated people facing far more serious charges than he. There, he was allowed out of his cell

12 for only one hour per day—whereas in his previous non-high security unit, he could spend

13 multiple hours per day outside of his cell. Neither Defendant nor his staff ever told Alford why he

14 had been transferred to a high-security unit. Alford has since been transferred out of the high-

15 security housing unit, but he still has the same high-security classification.

16

140. Alford’s transfer to the high-security unit was retaliation for attempting to speak

17 with the ACLU about conditions in Tulare County Jails. Since being moved out of the high-

18 security unit, Alford has not been able to speak with ACLU staff.

19

141. Plaintiffs Adam Ibarra and Samuel Camposeco have also struggled to meet with

20 their retained civil attorneys. On May 18, 2020 and May 28, 2020, Ibarra spoke with an ACLU

21 investigator about his concerns. Not long after the second interview, one of the TCSO sergeants

22 took Ibarra out of his housing unit, ostensibly to speak with a TCSO investigator about his

23 conversations with the ACLU. Ibarra refused to speak with the investigator and was returned to

24 his cell.

25

142. Since then, Ibarra has not been able to meet confidentially with ACLU staff.

26 Ibarra’s only contact with ACLU attorneys takes place over recorded, non-confidential phone

27 lines. And those conversations are constrained by his limited out-of-cell time.

28
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1

143. Defendant’s restrictions on Ibarra’s ability to have confidential legal visits with

2 ACLU staff have hindered his ability to report his concerns about the dangerous conditions in

3 Tulare County Jails and to protect his civil and constitutional rights.

4

144. In early June 2020, Plaintiff Camposeco called an ACLU investigator to whom

5 Camposeco had previously sent a letter regarding conditions in Tulare County Jails. The ACLU

6 investigator, however, has not been able to schedule a legal visit with Camposeco because

7 Defendant has cancelled his confidential legal visits. Since then, Camposeco has not been able to

8 meet with the ACLU in a confidential setting. Camposeco can only write letters or call the ACLU

9 attorneys and staff on a non-confidential line during the brief time he spends outside his cell each

10 day. These restrictions have made it very difficult for Camposeco to contact ACLU attorneys and

11 staff about the spread of COVID-19 in the Jails.

12

B. Defendant Issued a New Policy Designed to Frustrate Incarcerated People’s

13

Ability to Participate in Confidential Legal Visits in the Jails.

14

145. On June 4, 2020, in an attempt to further impede incarcerated people from pursuing

15 legal action to challenge the unconstitutional conditions in Tulare County Jails, Defendant issued a

16 memo outlining new restrictions on confidential professional visits.58 Defendant’s new policy

17 makes it extremely difficult for attorneys to schedule confidential legal visits with incarcerated

18 people. The policy narrowly limits confidential legal visits to “attorneys of record,” on its face

19 interfering with the attorney-client privilege at the most critical stage, i.e. the first meeting before

20 an attorney has even entered an appearance on behalf of a client.

21

146. ACLU attorneys have been blocked from meeting confidentially with incarcerated

22 people in Tulare County Jails since the policy was implemented—and criminal defense attorneys

23 have also found their clients’ access cut off. The new policy, in concert with the systemic

24 harassment and retaliation faced by incarcerated people who attempt to speak with attorneys,

25 violates Plaintiffs’ right to access the courts under the First and Fourteenth Amendments and their

26 right to counsel under the Sixth Amendment.

27

28 58Tulare County Sheriff’s Office Visitation Guidelines (Ex. 4). -37-
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1

147. On Wednesday, July 8, 2020, an ACLU attorney scheduled confidential attorney

2 video visits with three incarcerated people in Tulare County Jails. After becoming aware of

3 Defendant’s June 4 memo regarding new procedures for confidential video visits on Thursday,

4 July 9, 2020, the attorney emailed Defendant’s representative with all the required information and

5 documentation to request a professional account to enable confidential attorney video visits with

6 incarcerated people in Tulare County Jails.

7

148. On Thursday, July 9, 2020, the attorney attempted to conduct a confidential

8 attorney video visit with Ronald Howard, an incarcerated person in one of the Tulare County Jails.

9 A prominent message displayed at the top of the video noted that the conversation was being

10 recorded. At the beginning of the conversation, the attorney identified herself as an attorney with

11 the ACLU and stated that she did not consent to the recording of the visit, which was a

12 confidential attorney-client communication. However, because the message prominently indicated

13 that the visit was recorded and not confidential, the attorney and Howard, a client, did not speak

14 about confidential matters and cut the visit short.

15

149. On Friday, July 10, 2020, an ACLU attorney received an email from Tulare County

16 Jails canceling a confidential attorney video visit with a then-incarcerated person, Jack Ward. No

17 explanation for the cancellation was included in the email. The attorney tried to contact

18 Defendant’s representatives by phone and email, but received no response.

19

150. Later that same day, the attorney attempted a second time to speak confidentially

20 with Ward. But no one appeared on the video feed—the screen remained blank. After

21 approximately three minutes, the visit abruptly ended, and the attorney was not able to re-enter the

22 video feed. The attorney called Defendant’s representative shortly after. This time, the attorney

23 was told that the visits were cancelled because the attorney was not yet set up for confidential

24 visits. Defendant’s representative told the attorney that she would probably be approved on

25 Monday, July 13, 2020, and would receive an email and phone call to let her know. But the

26 attorney heard nothing from TCSO on Monday, July 13, 2020.

27

151. On Tuesday, July 14, 2020, the attorney called Defendant’s representative to

28 inquire about the status of her professional account. She left a voicemail with her information and
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1 requested a call back to follow up on the status of the confidential attorney video visits. On

2 Wednesday, July 15, 2020, the attorney called Defendant’s staff again and left a voicemail in the

3 “video visitation” mailbox to inquire about the status of her professional account. On Thursday,

4 July 16, 2020, the attorney called Defendant’s representative for a third day in a row and left a

5 voicemail in the “video visitation” mailbox to inquire about the status of her professional account.

6 On Friday, July 17, 2020, the attorney emailed Defendant’s representative to inquire about the

7 status of her professional account.

8

152. The attorney called Defendant’s representative again on July 21, 2020, and again

9 left a voicemail in the “video visitation” mailbox. Later that afternoon—twelve days after the

10 initial request—the attorney finally received an email from TCSO stating that her account had

11 been confirmed, and that she was approved to schedule confidential legal visits with two clients,

12 Adam Ibarra and Samuel Camposeco. (She remains unapproved to visit seven others.)

13

153. That evening, the attorney attempted to schedule visits with Ibarra and Camposeco.

14 But for every date or time she selected in the online form, she received an error message, stating:

15 “No stations available.” As of the filing of this complaint—more than two weeks after the initial

16 request—the attorney still has not been able to conduct a confidential legal visit with any of her

17 clients in Tulare County Jails.

18

154. The only way the ACLU attorney has been able to communicate with incarcerated

19 people in Tulare County Jails is if they call her on a recorded line. At the beginning of every call,

20 she hears a message indicating the conversation is being recorded. At the beginning of each

21 conversation, the attorney identifies herself as an attorney with the ACLU, and states that she and

22 her client do not consent to the recording of their confidential attorney-client communication.

23

155. The deleterious impact of Defendant’s policy extends beyond meetings with ACLU

24 attorneys. It has prevented incarcerated people at Tulare County Jails from speaking confidentially

25 with their criminal defense attorneys, thus impeding their constitutional right under the Sixth

26 Amendment to present a thorough case in their defense against criminal charges. Indeed, a defense

27 attorney who practices in the county has not been able to confidentially visit a single incarcerated

28 client at Tulare County Jails since Defendant implemented the new legal visiting policy. Plaintiffs
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1 Ibarra and Camposeco have not been able to meet with any attorneys confidentially, criminal or

2 civil, since the promulgation of Defendant’s new legal visitation policy.

3

156. Defendant’s legal visitation policy threatens to chill incarcerated people’s assertion

4 of claims challenging the currently-unlawful conditions of their incarceration. Indeed, short of an

5 outright ban on speaking with a prospective attorney, it is hard to imagine a restriction better

6 calculated to discourage the formation of attorney client relationships relating to claims

7 concerning unlawful conditions of imprisonment, or more harmful to the vindication of the

8 substantive legal rights in question.

9

157. Defendant has violated—and continues to violate—the constitutional rights of

10 Plaintiffs and potential class members to access the courts under the First and Fourteenth

11 Amendments and to defense counsel under the Sixth Amendment. Immediate injunctive relief is

12 crucial to restore confidential legal visits at Tulare County Jails and to cease Defendant’s ongoing

13 constitutional violations.

14 V. Tulare County Jails are on the Brink of Disaster.

15

158. It is clear that Defendant’s policies are not adequate to prevent the spread of

16 COVID-19 in the jails, or to protect Medically Vulnerable people. Defendant refuses to test

17 currently incarcerated people or to quarantine them upon arrival. He actively prevents incarcerated

18 people from wearing masks. And although the jail currently has space for incarcerated people to

19 spread out, Defendant has prioritized costs over implementing necessary social distancing in the

20 housing units. He has not provided adequate sanitation supplies, and has said, over and over again,

21 that he will not consider releases. He has done this while hiding from public scrutiny at every turn,

22 including through interfering with incarcerated people’s right to access counsel and the courts.

23

159. Defendant has violated—and continues to violate—the rights of Plaintiffs and the

24 class they seek to represent under the First, Sixth, Eighth, and Fourteenth Amendments to the

25 United States Constitution. These violations have already resulted in 11 people becoming ill with

26 COVID-19 in Tulare County Jails, and risk causing even more avoidable pain, illness, and death.

27 Immediate action by this court is required to prevent this possibility from occurring.

28
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1

160. Because of Defendant’s ongoing, systemic violations of Plaintiffs’ constitutional

2 rights, Plaintiffs seek class-wide relief requiring Defendant to join other jurisdictions in enlarging

3 some portion of the current population to home confinement and to implement other basic policies

4 and procedures that would mitigate the risks of COVID-19 to Plaintiffs’ health and safety.

5 Plaintiffs also seek class-wide relief requiring Defendant to allow incarcerated people at Tulare

6 County Jails meaningful access to legal counsel.

7

CLASS ALLEGATIONS

8

161. Pursuant to Federal Rule of Civil Procedure 23(b)(1) and 23(b)(2), Plaintiffs bring

9 this action as a class consisting of all people who are now, or in the future will be, incarcerated in

10 Tulare County Jails, including as subclasses: (i) persons confined pre-trial, (ii) persons confined

11 pursuant to a judgment of conviction, and (iii) Medically Vulnerable persons confined pre-trial

12 and pursuant to a judgment of conviction. Plaintiffs reserve the right to amend the class definition

13 or establish additional subclasses as appropriate if discovery or further investigation reveals the

14 class should be expanded or otherwise modified.

15

162. Numerosity: The class is so numerous that joinder is impracticable. Based upon

16 information and belief, the size of the class is at least 1,900 people and is therefore so numerous

17 that joinder is inherently impracticable for that reason alone. Joinder is also inherently

18 impracticable for other, independent reasons. The class includes unnamed, future class members

19 who cannot by definition be joined. Further, proposed class members are highly unlikely to file

20 individual suits on their own, as all are incarcerated and many are indigent, and thus have limited

21 access to their retained or court-appointed counsel due to Defendant’s policies, are currently

22 incarcerated, fear retaliation from filing suits against Defendant, and lack access and financial

23 resources to obtain qualified counsel to bring such suits.

24

163. Commonality: The claims of the class share common issues of fact and law,

25 including but not limited to whether Defendant’s policies regarding health and hygiene as relevant

26 to the COVID-19 pandemic—policies that systemically affect all proposed class members—

27 violate the Eighth and Fourteenth Amendments to the United States Constitution, and whether

28 Defendant’s policy regarding access to counsel violates the First and Fourteenth Amendments to
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1 the United States Constitution. The resolution of these questions will drive the outcome of the

2 litigation.

3

164. Typicality: The claims of Plaintiffs are typical of those of the class as a whole,

4 because each Plaintiff is currently in Defendant’s custody and Plaintiffs’ claims arise from the

5 same policies and procedures (or lack thereof) that provide the basis for all proposed class

6 members’ claims.

7

165. Adequacy: Plaintiffs are adequate class representatives who meet all of the

8 requirements of Rule 23(a)(4). They have no conflicts of interest in this case with other class

9 members. They will fairly and adequately represent the interests of the class, and each understands

10 the responsibilities of a representative. Counsel for Plaintiffs will vigorously prosecute the

11 interests of the class and include attorneys with extensive experience with the factual and legal

12 issues involved in representing jail and prison inmates, in asserting constitutional rights, and/or in

13 pursuing class actions.

14

CAUSES OF ACTION

15

FIRST CLAIM FOR RELIEF

16

42 U.S.C. § 1983—FOURTEENTH AMENDMENT

17

166. The Fourteenth Amendment to the United States Constitution guarantees pretrial

18 detainees the right to be free from punitive conditions of confinement.

19

167. Defendant is violating Plaintiffs’ and the proposed class members’ Fourteenth

20 Amendment rights because he “recklessly failed to act with reasonable care to mitigate the risk

21 that the condition posed to the pretrial detainee even though the defendant-official knew, or should

22 have known, that the condition posed an excessive risk to health or safety.” Darnell v. Pineiro,

23 849 F.3d 17, 35 (2d Cir. 2017).

24

168. Defendant is also violating Plaintiffs’ and the proposed class members’ Fourteenth

25 Amendment rights because “the challenged governmental action is not rationally related to a

26 legitimate governmental objective or that it is excessive in relation to that purpose.” Kingsley v.

27 Hendrickson, 576 U.S. 389, 398-99 (2015).

28
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1

169. Defendant has recklessly failed to act with reasonable care to mitigate the risk of

2 COVID-19 to Plaintiffs and proposed class members.

3

170. Defendant knew, or should have known, about the substantial risks COVID-19

4 poses to Plaintiffs and the proposed class members’ health and safety, yet he disregarded those

5 risks.

6

171. Defendant has acted with deliberate indifference towards Plaintiffs and proposed

7 class members by failing adequately to safeguard their health and safety.

8

172. Defendant has exposed Plaintiffs and proposed class members to a substantial—

9 indeed grave—risk of serious harm, including death.

10

173. Defendant has subjected Plaintiffs and proposed class members to conditions of

11 confinement that increase their risk of contracting COVID-19, for which there is no known

12 vaccine, treatment, or cure.

13

174. Defendant’s continued detention of Plaintiffs and proposed class members fails to

14 protect them adequately from the risks of contracting COVID-19.

15

175. As a result of Defendant’s unconstitutional actions, Plaintiffs and the proposed

16 class are suffering irreparable injury.

17

SECOND CLAIM FOR RELIEF

18

42 U.S.C. § 1983—EIGHTH AMENDMENT

19

176. The Eighth Amendment to the United States Constitution protects Plaintiffs and

20 proposed class members from cruel and unusual punishment.

21

177. To amount to the infliction of cruel and unusual punishment, (1) jail or prison

22 conditions must pose “an unreasonable risk of serious damage” to a prisoner’s health (an objective

23 test), and (2) prison officials must have acted with deliberate indifference to the risk posed (a

24 subjective test). Helling v. McKinney, 509 U.S. 25, 33–35 (1993).

25

178. Plaintiffs and proposed class members are subject to a risk of harm that today’s

26 society does not tolerate.

27

179. Society does not tolerate the risk of exposure to COVID-19 to which Defendant’s

28 policies and procedures (or lack thereof) have subjected Plaintiffs and proposed class members.
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1

180. Plaintiffs and proposed class members suffer a substantial risk of serious harm to

2 their health and safety due to the presence of, and spread of, COVID-19.

3

181. Defendant has acted with deliberate indifference to the risks posed to Plaintiffs and

4 proposed class members by COVID-19.

5

182. Defendant at all times knew, or should have known, of the risks that COVID-19

6 poses to Plaintiffs and proposed class members.

7

183. The risk of COVID-19 was, and is, obvious to Defendant.

8

184. Defendant’s response to COVID-19 has not been reasonable.

9

185. As a result of Defendant’s actions, Plaintiffs and proposed class members are

10 suffering irreparable injury.

11

THIRD CLAIM FOR RELIEF

12

42 U.S.C. § 1983—FIRST AND FOURTEENTH AMENDMENTS

13

186. The First Amendment to the United States Constitution protects the rights of

14 Plaintiffs and the proposed class members “to petition the government for a redress of

15 grievances,” a right that requires meaningful access to the courts. Plaintiffs and proposed class

16 members also have a right to meaningfully access the courts under the Fourteenth Amendment to

17 the United States Constitution.

18

187. Through his policies and practices, Defendant has actively interfered with the

19 ability of Plaintiffs and proposed class members to exercise their right to meaningfully access the

20 courts.

21

188. As a result of Defendant’s actions, Plaintiffs and proposed class members are

22 suffering an actual injury.

23

FOURTH CLAIM FOR RELIEF

24

42 U.S.C. § 1983—SIXTH AMENDMENT

25

189. The Sixth Amendment to the United States Constitution protects the right of

26 Plaintiffs and proposed class members to the assistance of counsel for defense against criminal

27 charges.

28
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1

190. Through his policies and practices, Defendant has actively interfered with the

2 ability of Plaintiffs and proposed class members to exercise their right to access the assistance of

3 counsel for their defense against criminal charges.

4

191. As a result of Defendant’s actions, Plaintiffs and proposed class members are

5 suffering an actual injury.

6

FIFTH CLAIM FOR RELIEF

7

BANE ACT (Cal. Civ. Code § 52.1(b))

8

192. The Bane Act allows an individual to bring a civil action for injunctive and other

9 appropriate relief “[i]f a person or persons, whether or not acting under color of law, interferes by

10 threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion with

11 the exercise or enjoyment by any individual or individuals of rights” secured by the constitutions

12 or laws of the United States or California. Cal. Civ. Code § 52.1(b).

13

193. Defendant has interfered or attempted to interfere by threat, intimidation, or

14 coercion with the right of Plaintiffs and proposed class members to meaningful access to the

15 courts guaranteed by the First and Fourteenth Amendments to the Constitution, the right of

16 Plaintiffs and proposed class members to access defense counsel under the Sixth Amendment, and

17 the right of Plaintiffs and proposed class members to initiate civil actions as plaintiffs under

18 California Penal Code § 2601(d).

19

194. As a result of Defendant’s actions, Plaintiffs and proposed class members are

20 suffering an actual injury.

21
22
23 Court:
24 A.
25 B.
26
27

RELIEF REQUESTED WHEREFORE, Plaintiffs and proposed class members respectfully request that the
Certify the proposed class and subclasses; Enter a temporary restraining order, preliminary injunction, and permanent injunction and/or a writ of habeas corpus requiring Defendant to:

28
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1

1. Immediately take all actions within his power to release Medically Vulnerable

2

people incarcerated at the Tulare County Jails absent proof of judicially-recorded

3

findings by clear and convincing evidence that the individual poses such a serious

4 risk of flight or danger to others that no other conditions can mitigate. This
5 includes, but is not limited to, releasing as many Medically Vulnerable people as
6

7

possible to home confinement pursuant to California Government Code § 8658;

8

2. Appoint an expert under Federal Rule of Evidence 706 to make recommendations

9

to the Court regarding how many and which class members to order released so as

10

to ensure that the number of prisoners remaining at the Tulare County Jails can be

11 housed consistently with CDC guidance on best practices to prevent the spread of
12 COVID-19, including the requirement that prisoners be able to maintain six feet of
13
space between them and further order that such recommendations take into account 14

15

CDC guidance concerning health factors that put individuals at elevated risk of

16

death from COVID-19;

17

3. Conduct COVID-19 testing of all incarcerated people and staff at Tulare County

18

Jails facilities;

19 4. Provide access to unmonitored, confidential legal calls and video visits with

20
retained and prospective counsel; 21

22

5. Facilitate video conferencing and telephonic conferencing, when requested, as an

23

alternative to in-person court appearances;

24

6. Develop a Jails-specific policy for contact tracing in the event of an outbreak;

25

7. Ensure that each incarcerated person receives, free of charge, an individual supply

26

of hand soap, sufficient to allow frequent hand washing; cloth face coverings; paper

27 towels; toilet paper; running water; and facial tissue;
28

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1

8. Ensure that all incarcerated people, when not in cells with access to hand soap and

2

running water, have access to hand sanitizer containing at least 60% alcohol;

3

9. Provide access to daily showers for each incarcerated person and daily access to

4 clean laundry, including clean personal towels and washrags after each shower;
5 10. Require that all Tulare County Jails staff wear personal protective equipment,
6

7

including masks and gloves, when interacting with visitors and incarcerated people

8

or when touching surfaces in common areas;

9

11. Provide an anonymous mechanism for residents to report staff who violate these

10

guidelines so that appropriate corrective action can be taken to ensure staff

11 compliance;
12 12. Take each incarcerated person’s temperature daily (with a functioning and properly
13
operated thermometer) to identify potential COVID-19 infections; 14

15

13. Clean and disinfect frequently touched surfaces with disinfectant products effective

16

against the virus that causes COVID-19 (at the manufacturer’s recommended

17

concentration), as well as surfaces in common areas, every two hours during

18

waking hours, and at least once during the night;

19 14. Ensure that individuals identified as having COVID-19 or having been exposed to

20
COVID-19 are properly quarantined in a non-punitive setting, with continued 21

22

access to showers, recreation, mental health services, reading materials,

23

commissary, phone and video visitation with loved ones, communication with

24

counsel, and personal property;

25

15. Respond to all emergency (as defined by the medical community) requests for

26

medical attention within an hour; and

27

28
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1

16. Appoint an independent monitor with medical expertise to ensure compliance with

2

these conditions, and provide the monitor with unfettered access to medical units,

3

confidential communication with detained individuals in and out of quarantine, and

4 surveillance video of public areas of the facilities; and
5 C. Award such further relief as this Court deems appropriate.
6

7

8 DATED: July 29, 2020
9

MUNGER, TOLLES & OLSON LLP

10

11

By:

/s/ Sara A. McDermott

12

Sara A. McDermott

Attorneys for Plaintiffs 13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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EXHIBIT 2
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 Case 1:20-cv-01048-DAD-SAB Document 10 Filed 08/12/20 Page 1 of 10

1 JACOB S. KREILKAMP (State Bar No. 248210) jacob.kreilkamp@mto.com
2 WILLIAM D. TEMKO (State Bar No. 98858) william.temko@mto.com
3 SARA A. McDERMOTT (State Bar No. 307564) sara.mcdermott@mto.com
4 OMAR H. NOURELDIN (State Bar No. 301549) omar.noureldin@mto.com
5 ARIEL T. TESHUVA (State Bar No. 324238) ariel.teshuva@mto.com
6 ESTALYN S. MARQUIS (State Bar No. 329780) estalyn.marquis@mto.com
7 MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue
8 Fiftieth Floor Los Angeles, California 90071-3426
9 Telephone: (213) 683-9100 Facsimile: (213) 687-3702
10 KATHLEEN GUNERATNE (State Bar No. 250751)
11 kguneratne@aclunc.org AMY GILBERT (State Bar No. 316121)
12 agilbert@aclunc.org ACLU FOUNDATION OF NORTHERN CALIFORNIA
13 39 Drumm Street San Francisco, CA 94111
14 Telephone: (415) 621-2493

15 Attorneys for Plaintiffs

16

UNITED STATES DISTRICT COURT

17

EASTERN DISTRICT OF CALIFORNIA

18

19 Charles Criswell, Levi Johnson, Samuel Camposeco, Adam Ibarra, and California
20 Attorneys for Criminal Justice,

21

Plaintiffs,

Case No. 1:20-cv-01048-DAD-SAB
NOTICE OF APPLICATION AND EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

22

vs.

23 Michael Boudreaux in his official capacity as Sheriff of Tulare County,
24 Defendant.
25

Filed concurrently with [Proposed] Order Granting Provisional Class Certification
Judge: Hon. Dale A. Drozd Date: Time: Crtrm.: 5

26

27

28

EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

Case 1:20-cv-01048-DAD-SAB Document 10 Filed 08/12/20 Page 2 of 10

1

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE that organizational Plaintiff California Attorneys for Criminal

3 Justice and Plaintiffs Charles Criswell, Levi Johnson, Adam Ibarra, and Samuel Camposeco,

4 individually and on behalf of all others similarly situated, apply ex parte for an order provisionally

5 certifying Plaintiffs’ claims as a class action, appointing Plaintiffs as class representatives, and

6 appointing class counsel, pursuant to the Federal Rule of Civil Procedure 23.

7

Plaintiffs propose the following class definition: All people who are now, or in the future

8 will be, incarcerated in Tulare County Jails. If the Court disagrees with the above-stated definition

9 for the Proposed Class, Plaintiffs move for the Court to redefine or modify that definition, as such

10 determinations are within the Court’s discretion. Fed. R. Civ. P. 23(d)(1). Plaintiffs also move for

11 the appointment of Plaintiffs Charles Criswell, Levi Johnson, Adam Ibarra, and Samuel

12 Camposeco as representatives of the Proposed Class. Plaintiffs further move for the ACLU

13 Foundation of Northern California and the firm of Munger, Tolles & Olson to be appointed as

14 Class Counsel under the Federal Rule of Civil Procedure 23(g).

15

This ex parte application is based upon this Notice, the Memorandum of Points and

16 Authorities, the Ex Parte Motion for Temporary Restraining Order and OSC re: Preliminary

17 Injunction (“TRO Motion”), the declarations and exhibits filed in support thereof, the other filings

18 in this action, the Proposed Order, which is being lodged in accordance with Local Rule 205, and

19 any and all evidence, argument, or other matters that may be presented at the hearing. On August

20 11, 2020, Sara McDermott, counsel for Plaintiffs, met and conferred with counsel for Defendant

21 by telephone and gave notice of Plaintiffs’ application for provisional class certification. See Ex. 1

22 to TRO Motion (Declaration of Sara A. McDermott (“McDermott Decl.”)) ¶¶ 4, 7. Counsel

23 advised that Plaintiffs would be moving for a Temporary Restraining Order and would be seeking

24 provisional class certification for purposes of the motion. Id.

25 DATED: August 12, 2020

MUNGER, TOLLES & OLSON LLP

26

By:

/s/ Sara A. McDermott

27

Sara McDermott

Attorneys for Plaintiffs

28

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EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

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1

APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

2 I. INTRODUCTION

3

Plaintiffs have moved for preliminary relief under a temporary restraining order to prevent

4 immediate avoidable illness and death from COVID-19 among incarcerated people at Tulare

5 County Jails, which is being caused by Defendant Michael Boudreaux’s failure to take adequate

6 measures to address the threat of COVID-19.1 Plaintiffs further challenge Defendant’s attempts to

7 prevent them from challenging his unconstitutional practices in court. Specifically, Plaintiffs have

8 asked the Court to issue a narrow temporary restraining order requiring Defendant to (1) develop

9 CDC-compliant testing policies to effectively identify infected individuals and reduce the spread

10 of COVID-19 in Tulare County Jails; (2) develop CDC-complaint social distancing policies to

11 reduce overcrowding in the Jails; and (3) cease interference with the right of incarcerated people at

12 Tulare County Jails to contact and meet with counsel confidentially and access the courts.

13

In connection with the emergency relief requested, this ex parte application seeks

14 provisional certification of a class of all people who are now, or in the future will be, incarcerated

15 in Tulare County Jails, all of whom are affected by Defendant’s inadequate response to COVID-

16 19 and are in urgent need of protection. Federal courts in the Ninth Circuit “routinely grant

17 provisional class certification for purposes of entering [preliminary] injunctive relief” under Rule

18 23(b)(2), when plaintiffs establish that the four prerequisites in Rule 23(a) are met. Carrillo v.

19 Schneider Logistics, Inc., No. CV 11-8557 CAS, 2012 WL 556309, at *9 (C.D. Cal. Jan. 31, 2012)

20 (citing Baharona-Gomez v. Reno, 167 F.3d 1228, 1233 (9th Cir. 1999)); see also Meyer v.

21 Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1042 (9th Cir. 2012) (holding district court did

22 not abuse its discretion by provisionally certifying class for purpose of entering preliminary

23 injunction); Saravia v. Sessions, 280 F. Supp. 3d 1168, 1202 (N.D. Cal. 2017) (provisionally

24 certifying class of detained immigrant children), aff’d, Saravia for A.H. v. Sessions, 905 F.3d 1137

25

26

27

1 The term “Tulare County Jails” refers to the five detention facilities managed by Defendant: Bob Wiley Detention Facility (Bob Wiley), Main Jail, Men’s Correctional Facility, Adult Pre-Trial

28 Facility (Pre-Trial Facility), and South County Detention Facility (South County).

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EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

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1 (9th Cir. 2018). And numerous courts around the country have certified provisional classes for
2 purposes of injunctive relief in cases involving challenges to conditions of confinement during the
3 COVID-19 pandemic.2 This Court should join them, and provisionally certify the proposed class
4 defined as all people who are now, or in the future will be, incarcerated in Tulare County Jails
5 (the “Proposed Class”) for purposes of granting Plaintiffs injunctive relief, because Rule 23’s
6 requirements are satisfied here.
7 II. THE PROPOSED CLASS AND SUBCLASS MEET THE REQUIREMENTS OF RULE 23(a).
8 A. Numerosity
9 Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is
10 impracticable.” Fed. R. Civ. P. 23(a)(1). No specific number is needed, but “forty or more
11 members will generally satisfy the numerosity requirement.” Arroyo v. United States Dep’t of
12 Homeland Sec., No. SACV 19-815 JGB, 2019 WL 2912848, at *9 (C.D. Cal. June 20, 2019); see
13 also In re Cooper Cos. Inc. Sec. Litig., 254 F.R.D. 628, 634 (C.D. Cal. 2009). Numerosity is
14 satisfied when “general knowledge and common sense indicate that [the class] is large.” Inland
15 Empire-Immigrant Youth Collective v. Nielsen, No. EDCV 17-2048 PSG, 2018 WL 1061408, at
16 *7 (C.D. Cal. Feb. 26, 2018) (quoting Cervantez v. Celestica Corp., 253 F.R.D. 562, 569 (C.D.
17 Cal. 2008)). To be impracticable, joinder must be difficult or inconvenient but need not be
18 impossible. Keegan v. Am. Honda Motor Co., 284 F.R.D. 504, 522 (C.D. Cal. 2012).
19 The Proposed Class is sufficiently numerous. Plaintiffs seek relief on behalf of all persons
20 incarcerated at Tulare County Jails. As of August 1, 2020, there were approximately 1,086 people
21 in Defendant’s custody in Tulare County Jails. Ex. 1 to TRO Motion (McDermott Decl.) ¶ 11, Ex.
22
23 2 See, e.g., Torres v. Milusnic, No. CV204450CBMPVCX, 2020 WL 4197285, at *23 (C.D. Cal.
24 July 14, 2020); Gayle v. Meade, No. 20-21553-CIV, 2020 WL 3041326, at *16 (S.D. Fla. June 6, 2020); Ahlman v. Barnes, No. SACV20835JGBSHKX, 2020 WL 2754938, at 6 (C.D. Cal. May
25 26, 2020); Gomes v. Acting Sec’y, U.S. Dep’t of Homeland Sec., No. 20-CV-453-LM, 2020 WL 2113642, at *4 (D.N.H. May 4, 2020); Alcantara v. Archambeault, No. 20CV0756 DMS (AHG),
26 2020 WL 2315777, at *7 (S.D. Cal. May 1, 2020); Roman v. Wolf, No. 5:20-cv-768, (TJH) (PHV), 2020 WL 1952656 (C.D. Cal. Apr. 23, 2020); Fraihat v. U.S. Immigration & Customs
27 Enforcement, No. EDCV191546JGBSHKX, 2020 WL 1932570, at *20 (C.D. Cal. Apr. 20, 2020); Zepeda Rivas v. Jennings, No. 20-CV-02731-VC, 2020 WL 2059848, at *1 (N.D. Cal. Apr. 29,
28 2020); Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 1703844, at *6 (D. Mass. Apr. 8, 2020); Mays v. Dart, No. 20 C 2134, 2020 WL 1987007, at *23 (N.D. Ill. Apr. 27, 2020).
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EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

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1 F. Because there are more than 1,000 members in the Proposed Class, and joinder of all claims

2 would be impracticable, the numerosity requirement is satisfied.

3

B. Commonality

4

Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” Fed. R.

5 Civ. P. 23(a)(2). This requirement has “been construed permissively . . . .” Ellis v. Costco

6 Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011). Commonality requires plaintiffs to

7 demonstrate only that their claims “depend upon a common contention . . . [whose] truth or falsity

8 will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-

9 Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Commonality can be satisfied by even a

10 single common issue. See e.g., Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir.

11 2013) (Commonality “does not . . . mean that every question of law or fact must be common to the

12 class; all that Rule 23(a)(2) requires is a single significant question of law or fact.”) (citations and

13 internal quotation marks omitted) (emphasis in original).

14

Commonality is satisfied where a lawsuit challenges “systemic policies and practices that

15 allegedly expose inmates to a substantial risk of harm,” even where there are “individual factual

16 differences among class members.” Parsons v. Ryan, 754 F.3d 657, 681-82 (9th Cir. 2014)

17 (collecting cases); Hernandez v. Lynch, No. EDCV 16-00620-JGB, 2016 WL 7116611, at *17

18 (C.D. Cal. Nov. 10, 2016), aff’d sub nom. Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017);

19 see also Inland Empire-Immigrant Youth Collective, No. EDCV 17-2048 PSG, 2018 WL

20 1061408, at *8. “The existence of shared legal issues with divergent factual predicates is

21 sufficient, as is a common core of salient facts coupled with disparate legal remedies within the

22 class.” Arroyo, 2019 WL 2912848, at *9 (quoting Staton v. Boeing Co., 327 F.3d 938, 953 (9th

23 Cir. 2003)).

24

Here, the Proposed Class meets the commonality requirement because all class members

25 are subject to the same practices and lack of policies: (1) Defendant’s refusal to implement

26 appropriate social distancing policies, compliant with CDC guidelines, and insistence instead on

27 continuing to pack incarcerated people into dangerously crowded housing units and common

28 areas, despite available space within the Jails; (2) Defendant’s refusal to institute a testing policy,

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EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

Case 1:20-cv-01048-DAD-SAB Document 10 Filed 08/12/20 Page 6 of 10

1 compliant with CDC guidelines, that stands any chance of meaningfully identifying sick people

2 and preventing the spread of COVID-19 within the Jails; and (3) Defendant’s targeted interference

3 with the right of incarcerated people to communicate confidentially with counsel and access the

4 courts. COVID-19 does not discriminate—all incarcerated people are at risk. See TRO Motion Ex.

5 2 (Declaration of Dr. Joe Goldenson (“Goldenson Decl.”)), ¶ 22; Coronavirus Disease 2019

6 (COVID-2019), Centers for Disease Control (June 25, 2020), (“Everyone is at risk for getting

7 COVID-19 if they are exposed to the virus.”)3; see also Armstrong v. Davis, 275 F.3d 849, 868

8 (9th Cir. 2001) (“[C]ommonality is satisfied where the lawsuit challenges a system‐wide practice

9 or policy that affects all of the putative class members.”).

10

The claims brought by the named Plaintiffs on behalf of the Proposed Class raise several

11 common questions of fact and law, including but not limited to:

12

1. Whether Defendant continues to pack Proposed Class members into a few

13

crowded housing units, despite available living space elsewhere in the Jails;

14

2. Whether Defendant has implemented testing protocols to effectively

15

identify infected individuals and prevent the spread of COVID-19;

16

3. Whether Defendant has interfered with Proposed Class members’ rights to

17

communicate with counsel confidentially, and access the courts, by

18

implementing a restrictive visitation policy and permitting TCSO deputies’

19

practice of intimidating, threatening, and retaliating against Proposed Class

20

members who speak with counsel;

21

4. Whether Defendant’s failure to reduce crowding or provide testing exposes

22

the Proposed Class to a heightened risk of serious illness and death and

23

violates the Proposed Class members’ rights in violation of the Eighth and

24

Fourteenth Amendments;

25

26

27 28 3 Available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-
increased-risk.html.

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1

5. Whether Defendant’s interference with Proposed Class members’ access to

2

counsel and the courts violates the First, Sixth, and Fourteenth

3

Amendments; and

4

6. Whether Defendant’s use of intimidation, threats, and retaliation in an

5

attempt to prevent Proposed Class members from exercising their right to

6

access the courts violates the Bane Act.

7

Members of the Proposed Class are all incarcerated in facilities operated by Defendant, and

8 these claims focus on two primary issues: (1) whether Defendant has violated the Proposed Class

9 members’ constitutional rights to humane conditions of confinement in light of his failure to

10 respond appropriately to the immediate and urgent risks presented by COVID-19; and (2) whether

11 Defendant has violated the Proposed Class members’ constitutional rights to access counsel and

12 the courts in light of Defendant’s restrictive legal visitation policy and systematic use of

13 retaliation, threats, and intimidation against incarcerated people who attempt to access counsel.

14 These are common issues amenable to class treatment.

15

C. Typicality

16

Federal Rule of Civil Procedure 23(a)(3) requires that “the claims . . . of the representative

17 parties [be] typical of the claims . . . of the class.” “[T]he typicality requirement is permissive and

18 requires only that the representative’s claims are reasonably co-extensive with those of absent

19 class members; they need not be substantially identical.” Rodriguez v. Hayes, 591 F.3d 1105, 1124

20 (9th Cir. 2010) (quotation marks and citation omitted).

21

“The test of typicality is “‘whether other members [of the class] have the same or similar

22 injury, whether the action is based on conduct which is not unique to the named plaintiffs, and

23 whether other class members have been injured by the same course of conduct.’” Parsons, 754

24 F.3d at 685 (citation omitted). Typicality is satisfied “when each class member’s claim arises from

25 the same course of events, and each class member makes similar legal arguments to prove the

26 defendant’s liability.” Rodriguez, 591 F.3d at 1124 (quotation and citation omitted).

27

The Proposed Class meets the typicality requirement, because the named Plaintiffs and

28 Proposed Class members are all individuals who are incarcerated at Tulare County Jails, and their

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EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

Case 1:20-cv-01048-DAD-SAB Document 10 Filed 08/12/20 Page 8 of 10

1 claims all arise from the same failures of Defendant to develop CDC-compliant social distancing

2 policies that ease overcrowding by using available space and testing protocols to effectively

3 identify infected individuals and reduce the spread of COVID-19. Compl. ¶¶ 88–130.

4 Additionally, they are all subject to Defendant’s unconstitutionally restrictive legal visitation

5 policy. Compl. ¶¶ 131–158. Finally, without this Court’s intervention, all will suffer the same

6 harm: the significant and avoidable risk of serious illness or death from COVID-19.

7

D. Adequacy of Representation

8

Rule 23(a)(4) requires that the “representative parties will fairly and adequately protect the

9 interests of the class.” The adequacy inquiry asks: “(1) do the named plaintiffs and their counsel

10 have any conflicts of interest with other class members and (2) will the named plaintiffs and their

11 counsel prosecute the action vigorously on behalf of the class?” Lerwill v. Inflight Motion

12 Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978). This requirement “tend[s] to merge with the

13 commonality and typicality criteria of Rule 23(a).” Amchem Prods., Inc. v. Windsor, 521 U.S. 591,

14 626, n.20 (1997) (internal quotation marks and citation omitted).

15

Both requirements are plainly satisfied here. First, there is no conflict between the named

16 Plaintiffs and other members of the Proposed Class. The named Plaintiffs and other class members

17 have the same injury and seek the same relief. Second, the named Plaintiffs have confirmed their

18 willingness to vigorously prosecute this action, and their commitment to ensuring that all people

19 facing the current dangerous conditions in Tulare County Jails benefit from this case. Indeed,

20 named Plaintiff Adam Ibarra has even faced interrogation from Tulare County Jails staff in

21 response to his commitment to pursuing this litigation. Compl. ¶¶141–142. Moreover, the

22 Proposed Class is represented by counsel from the American Civil Liberties Union Foundation of

23 Northern California (“ACLU”) and Munger, Tolles & Olson (“MTO”). Counsel have extensive

24 experience litigating class action lawsuits and other complex cases in federal court, including

25 experience litigating cases on behalf of incarcerated people in general and involving conditions of

26 confinement related to COVID-19 in particular. Ex. 1 to TRO Motion (McDermott Decl.) ¶¶ 18–

27 20; Ex. 5 to TRO Motion (Guneratne Decl.) ¶¶ 2–3. Both MTO and the ACLU will zealously and

28

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EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

Case 1:20-cv-01048-DAD-SAB Document 10 Filed 08/12/20 Page 9 of 10

1 adequately represent Plaintiffs and the Proposed Class in this action. Ex. 1 to TRO Motion

2 (McDermott Decl.) ¶ 21.

3 III. THE PROPOSED CLASS MEETS THE REQUIREMENTS OF RULE 23(b)(2).

4

In addition to satisfying the four prerequisites of Rule 23(a), the Proposed Class qualifies

5 for class treatment under Rule 23(b)(2). Rule 23(b)(2) requires Plaintiffs to establish that “the

6 party opposing the class has acted or refused to act on grounds that apply generally to the class, so

7 that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as

8 a whole.” Fed. R. Civ. P. 23(b)(2). “[Rule] 23(b)(2) was adopted in order to permit the prosecution

9 of civil rights actions.” Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998). As a result, “‘it is

10 sufficient’ to meet the requirements of Rule 23(b)(2) that ‘class members complain of a pattern or

11 practice that is generally applicable to the class as a whole.’” Rodriguez, 591 F.3d at 1126

12 (citations omitted) (holding that class of noncitizens detained during immigration proceedings met

13 Rule 23(b)(2) criteria because “all class members’ [sought] the exact same relief as a matter of

14 statutory or, in the alternative, constitutional right”); id. (“The fact that some class members may

15 have suffered no injury or different injuries from the challenged practice does not prevent the class

16 from meeting the requirements of Rule 23(b)(2).”).

17

The Proposed Class meets these requirements for two reasons. First, Defendant’s actions

18 and omissions are generally applicable to the Proposed Class as a whole because his failure to (1)

19 develop an adequate, CDC-compliant social distancing policy to ease overcrowding by using

20 available space, (2) develop CDC-compliant testing protocols to effectively identify infected

21 individuals and prevent the spread of COVID-19, and (3) interfere with Proposed Class members’

22 access to the courts violates the rights of all Proposed Class members and puts them at serious risk

23 of substantial and avoidable illness and suffering. Second, the injunctive relief requested by

24 Plaintiffs is appropriate for the class as a whole. The class requests uniform relief: (1) the

25 development of COVID-19 testing protocols to prevent its spread, and the use of available space

26 to ease overcrowding; and (2) the cessation of Defendant’s restrictive legal visitation policy and

27 intimidating tactics to prevent incarcerated people from accessing counsel and the courts. All class

28

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1 members will benefit from the requested relief: All would receive increased protection from

2 COVID-19.

3

Certification under Rule 23(b)(2) is appropriate because the remedies being sought would

4 afford the same relief to all Proposed Class members. See Parsons, 754 F.3d at 689 (holding

5 declaratory and injunctive relief proper as to class where “every [member] . . . is allegedly

6 suffering the same (or at least a similar) injury and that injury can be alleviated for every class

7 member by uniform changes in . . . policy and practice”); Rodriguez, 591 F.3d at 1126 (certifying

8 Rule 23(b)(2) class of imprisoned immigrants where class sought uniform procedure for release,

9 because “relief from a single practice is requested by all class members”).

10 IV. CONCLUSION

11

For the foregoing reasons, Plaintiffs respectfully request that the Court provisionally

12 certify the Proposed Class.

13 DATED: August 12, 2020

MUNGER, TOLLES & OLSON LLP

14

15

16

By:

/s/ Sara A. McDermott

Sara McDermott

17

Attorneys for Plaintiffs

18

19

20

21

22

23

24

25

26

27

28

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EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

 
 Case 1:20-cv-01048-DAD-SAB Document 11 Filed 08/12/20 Page 1 of 34

1 JACOB S. KREILKAMP (State Bar No. 248210) jacob.kreilkamp@mto.com
2 WILLIAM D. TEMKO (State Bar No. 98858) william.temko@mto.com
3 SARA A. McDERMOTT (State Bar No. 307564) sara.mcdermott@mto.com
4 OMAR H. NOURELDIN (State Bar No. 301549) omar.noureldin@mto.com
5 ARIEL T. TESHUVA (State Bar No. 324238) ariel.teshuva@mto.com
6 ESTALYN S. MARQUIS (State Bar No. 329780) estalyn.marquis@mto.com
7 MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue
8 Fiftieth Floor Los Angeles, California 90071-3426
9 Telephone: (213) 683-9100 Facsimile: (213) 687-3702
10 KATHLEEN GUNERATNE (State Bar No. 250751)
11 KGuneratne@aclunc.org AMY GILBERT (State Bar No. 316121)
12 AGilbert@aclunc.org ACLU FOUNDATION OF NORTHERN CALIFORNIA
13 39 Drumm Street San Francisco, CA 94111
14 Telephone: (415) 621-2493

15 Attorneys for Plaintiffs

16

UNITED STATES DISTRICT COURT

17

EASTERN DISTRICT OF CALIFORNIA

18 Charles Criswell, et al.,

Case No. 1:20-cv-01048-DAD-SAB

19

Plaintiffs,

20

vs.

21 Michael Boudreaux, in his official capacity as Sheriff of Tulare County,
22 Defendant.
23

24

25

26

PLAINTIFFS’ EX PARTE NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER AND OSC RE: PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES
Filed concurrently with TRO Checklist; [Proposed] Temporary Restraining Order and Order to Show Cause re Preliminary Injunction
Judge: Hon. Dale A. Drozd Date: Time: Crtrm.: 5

27

28

EX PARTE APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION

Case 1:20-cv-01048-DAD-SAB Document 11 Filed 08/12/20 Page 2 of 34

1

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE that organizational Plaintiff California Attorneys for Criminal

3 Justice, and Plaintiffs Charles Criswell, Levi Johnson, Adam Ibarra, and Samuel Camposeco,

4 individually and on behalf of all others similarly situated, apply ex parte for a Temporary

5 Restraining Order requiring Defendant Michael Boudreaux to implement CDC-compliant policies

6 for effectuating social distancing and the immediate testing of incarcerated people in the Tulare

7 County Jails, and cessation of his interference in their rights to access counsel and this Court,

8 pursuant to Federal Rule of Civil Procedure 65 and Local Rule 231.

9

This Motion is based upon this Notice, the Memorandum of Points and Authorities, the

10 declarations and exhibits filed in support thereof, Plaintiffs’ Complaint, the filings in this action,

11 the Proposed Order, which is being filed in accordance with Local Rule 231 and lodged in

12 accordance with Local Rule 137, and any and all evidence, argument, or other matters that may be

13 presented at the hearing.

14

On August 11, 2020, Sara McDermott, counsel for Plaintiffs, met and conferred with

15 counsel for Defendant Kathleen A. Taylor by telephone and gave notice of Plaintiffs’ ex parte

16 application. See Ex. 1 (Declaration of Sara McDermott (“McDermott Decl.”)) ¶¶ 4–7. As outlined

17 in the McDermott Declaration, counsel continue to meet and confer regarding Plaintiffs’ request,

18 originally included in Plaintiffs’ requested relief, that Defendant draft a CDC-compliant written

19 masking policy substantially reflecting the current practice within the Jails. Id. ¶ 7. As to

20 Plaintiffs’ remaining requests, counsel have reached an impasse. Id. Plaintiffs’ counsel advised

21 that Plaintiffs would be moving for a Temporary Restraining Order as to those requests. Id.

22 DATED: August 12, 2020

MUNGER, TOLLES & OLSON LLP

23

24

25

By:

/s/ Sara A. McDermott

Sara A. McDermott

26

Attorneys for Plaintiffs

27

28

EX PARTE APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION

Case 1:20-cv-01048-DAD-SAB Document 11 Filed 08/12/20 Page 3 of 34

1
2 I.
3 II.
4
5
6
7
8
9
10
11 III.
12
13
14
15
16
17
18
19
20
21
22
23
24 IV.
25
26
27
28

TABLE OF CONTENTS
Page INTRODUCTION ..................................................................................................................1
FACTUAL BACKGROUND ................................................................................................2
A. Defendant Continues to Transfer Incarcerated People to Two Overcrowded Jails Despite Available Space Elsewhere ...................................................................3
B. Defendant’s Testing Policy: If You Don’t Test, You Get No Positives ....................4
C. Intentional Interference with Access to Courts and Counsel .....................................8
1. Defendant’s Attorney Visitation Policy Was Designed to—and Had the Effect of—Chilling Incarcerated People’s Access to Courts and Counsel ...........................................................................................................8
2. Defendant Has Intimidated, Interrogated, and Retaliated Against Incarcerated People Seeking to Exercise Constitutional Rights ..................10
ARGUMENT .......................................................................................................................11
A. Plaintiffs and the Proposed Class Are Likely to Succeed on the Merits..................12
1. Defendant Is Deliberately Indifferent to Plaintiffs’ Serious Medical Needs, In Violation of the Fourteenth and Eighth Amendments .................13
a. Defendant’s Decision to Increase Overcrowded Conditions During the Pandemic Is Deliberate Indifference ..............................17
b. Defendant’s Refusal to Test the Vast Majority of Detainees is Deliberately Indifferent ................................................................17
2. Defendant’s Active Interference with Plaintiffs’ Attempts to Meet with Counsel Violates Their First, Sixth, and Fourteenth Amendment Rights, and Also Runs Afoul of the Bane Act.........................19
3. Exhaustion Requirements Do Not Bar Relief ..............................................21
B. Plaintiffs and Proposed Class Members Will Suffer Irreparable Harm ...................22
C. The Balance of Equities and Public Interest Both Favor Plaintiffs and the Proposed Class .........................................................................................................23
D. Good Cause Exists to Grant Plaintiffs Early Discovery ..........................................24
CONCLUSION ....................................................................................................................25

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1

TABLE OF AUTHORITIES

2

Page(s)

FEDERAL CASES

3

All. for the Wild Rockies v. Cottrell, 4 632 F.3d 1127 (9th Cir. 2011)..............................................................................................11, 12

5 Apple Inc. v. Samsung Elecs. Co.,

6

No. 11-CV-01846-LHK, 2011 WL 1938154 (N.D. Cal. May 18, 2011)...................................24

7 Banks v. Booth, No. CV 20-849 (CKK), 2020 WL 3303006 (D.D.C. June 18, 2020) ..................................17, 23
8 Benjamin v. Fraser,
9 264 F.3d 175 (2d Cir. 2001) .......................................................................................................20

10 Bent v. Barr,

11

No. 19-cv-06123, 2020 WL 1812850 (N.D. Cal. Apr. 9, 2020) ................................................23

12 Bounds v. Smith, 430 U.S. 817 (1977) ...................................................................................................................19
13 Bradley v. Hall,
14 64 F.3d 1276 (9th Cir. 1995)......................................................................................................19

15 Brown v. Plata,

16

563 U. S. 493 (2011) ..................................................................................................................23

17 Cameron v. Bouchard, No. 20-10949, 2020 WL 1929876 (E.D. Mich. Apr. 17, 2020) ...........................................15, 16

18 Carranza v. Reams,
19 No. 20-CV-00977-PAB, 2020 WL 2320174 (D. Colo. May 11, 2020).....................................17

20 Casey v. Lewis, 4 F.3d 1516 (9th Cir. 1993)..................................................................................................19, 20
21

22

Castillo v. Barr, 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020) ...........................................................................23

23 Castro v. Cnty. of L.A.,
24 833 F.3d 1060 (9th Cir. 2016) ....................................................................................................16

25 Ching v. Lewis, 895 F.2d 608 (9th Cir. 1990)......................................................................................................19
26 In re Countrywide Fin. Corp. Derivative Litig.,
27 542 F. Supp. 2d 1160 (C.D. Cal. 2008)......................................................................................24
28

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1

TABLE OF AUTHORITIES

(Continued)

2

Page(s)

3 DeShaney v. Winnebago Cnty. Dept. of Soc. Servs., 489 U.S. 189 (1989) ...................................................................................................................12
4 Doe v. Barr,
5 No. 20-cv-02141, 2020 WL 1820667 (N.D. Cal. Apr. 12, 2020) ..............................................23
6 Duvall v. Dallas Cnty., Tex., 7 631 F.3d 203 (5th Cir. 2011)......................................................................................................18

8 Elrod v. Burns, 427 U.S. 347 (1976) ...................................................................................................................22
9 Farmer v. Brennan,
10 511 U.S. 825 (1994) .......................................................................................................12, 13, 15
11 Fraihat v. U.S. Immigr. & Customs Enforcement, 12 No. 19-CV-1546 JGB, 2020 WL 1932570 (C.D. Cal. Apr. 20, 2020) ......................................22

13 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) ...................................................................................................................18
14 Frontline Med. Assoc., Inc. v. Coventry Healthcare Workers Comp., Inc.,
15 620 F.Supp.2d 1109 (C.D. Cal. 2009)........................................................................................12
16 Gantt v. City of L.A., 17 717 F.3d 702 (9th Cir. 2013)......................................................................................................16
18 Gordon v. Cnty. of Orange, 888 F.3d 1118 (9th Cir. 2018)........................................................................................13, 14, 16
19 Hall v. Mims,
20 No. 1:11-CV-02047-LJO-BAM, 2012 WL 1498893 (E.D. Cal. Apr. 27, 2012) .......................25

21 Helling v. McKinney,

22

509 U.S. 25 (1993) .........................................................................................................12, 13, 22

23 Hernandez v. Cnty. of Monterey, 110 F. Supp. 3d 929 (N.D. Cal. 2015) .......................................................................................16
24 Hutto v. Finney,
25 437 U.S. 678 (1978) ...................................................................................................................13

26 Interserve, Inc. v. Fusion Garage PTE, Ltd., No. C 09-05812 JW (PVT), 2010 WL 143665 (N.D. Cal. Jan. 7, 2010) ...................................24
27

28

Kaur v. U.S. Dep’t of Homeland Sec., No. 2:20-cv-03172, 2020 WL 1939386 (C.D. Cal. April 22, 2020) ..........................................23

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1

TABLE OF AUTHORITIES

(Continued)

2

Page(s)

3 Kennedy v. City of Ridgefield, 439 F.3d 1055 (9th Cir. 2006) ....................................................................................................16
4 King v. Cnty. of L.A.,
5 885 F.3d 548 (9th Cir. 2018)........................................................................................................3
6 Klein v. City of San Clemente, 7 584 F.3d 1196 (9th Cir. 2009) ....................................................................................................23

8 L’Oreal USA Creative, Inc. v. Tsui, No. 16-cv-8673 FMO, 2016 WL 9275404 (C.D. Cal. Dec. 22, 2016) ......................................25
9 Laureau v. Manson,
10 651 F.2d 96 (2d Cir. 1981) .........................................................................................................18
11 Malibu Media, LLC v. Doe, 12 319 F.R.D. 299 (E.D. Cal. 2016)................................................................................................24

13 Martinez-Brooks v. Easter, No. 3:20-cv-00569, 2020 WL 2405350 (D. Conn. May 12, 2020)......................................15, 17
14 Mays v. Dart,
15 No. 20-C-2134, 2020 WL 1812381 (N.D. Ill. Apr. 9, 2020) .....................................................23
16 Melendres v. Arpaio, 17 695 F.3d 990 (9th Cir. 2012)................................................................................................22, 24
18 Morales Feliciano v. Rosselló Gonzáles, 13 F. Supp. 2d 151 (D.P.R. 1998) ..............................................................................................17
19 Muhammad v. Garrett,
20 66 F. Supp. 3d 1287 (E.D. Cal. 2014) ........................................................................................21

21 Norton v. LVNV Funding, LLC,

22

396 F. Supp. 3d 901 (N.D. Cal. 2019) .......................................................................................18

23 Rep. of the Phil. v. Marcos, 862 F.2d 1355 (9th Cir. 1988)......................................................................................................2
24 Rodde v. Bonta,
25 357 F.3d 988 (9th Cir. 2004)......................................................................................................22

26 Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013)....................................................................................................23
27

28

Ross v. Blake, 136 S. Ct. 1850 (2016) ...............................................................................................................22

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1

TABLE OF AUTHORITIES

(Continued)

2

Page(s)

3 Sas v. Sawabeh Info. Servs. Co., No. 11-cv-04147 GAF, 2011 WL 13130013 (C.D. Cal. May 17, 2011) ...................................25
4 Silva v. Di Vittorio,
5 658 F.3d 1090 (9th Cir. 2011)..............................................................................................19, 21
6 Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 7 240 F.3d 832 (9th Cir. 2001)......................................................................................................12

8 Texas v. Cobb, 532 U.S. 162 (2001) ...................................................................................................................20
9 Thakker v. Doll,
10 No. 20-cv-0480, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020).................................................23
11 Torres v. Milusnic, 12 No. 20-cv-4450-CBM-PVC(x), 2020 WL 4197285 (C.D. Cal. July 14, 2020) .........................15
13 United States v. Erie Cnty., NY, No. 09-CV-849S, 2010 WL 11578742 (W.D.N.Y. Mar. 6, 2010).............................................25
14 Univ. of Texas v. Camenisch,
15 451 U.S. 390 (1981) .....................................................................................................................2
16 Winter v. Nat’l Res. Def. Council, Inc., 17 555 U.S. 7 (2008) .................................................................................................................11, 12
18 STATE CASES

19 Cornell v. City & Cnty. of San Francisco, 17 Cal. App. 5th 766, 804 (2017)...............................................................................................21
20 Smith v. Ogbuehi,
21 38 Cal. App. 5th 453, 465 (2019)...............................................................................................20
22 FEDERAL STATUTES
23 Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) .......................................................................21
24 STATE STATUTES
25 Cal. Civ. Code § 52.1 .................................................................................................................20, 21
26 Cal. Pen. Code § 2601 ......................................................................................................................20
27

28

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1

TABLE OF AUTHORITIES

(Continued)

2

Page(s)

3 FEDERAL RULES

4 Fed. R. Civ. P. 26 .............................................................................................................................24

5 Fed. R. Civ. P. 65 .............................................................................................................................11
6 CONSTITUTIONAL PROVISIONS
7 First Amendment ........................................................................................................................19, 21
8 Sixth Amendment.............................................................................................................................20
9 Eighth Amendment ....................................................................................................................14, 16
10 Fourteenth Amendment ..................................................................................................13, 14, 19, 22
11 OTHER AUTHORITIES
12 California Department of Public Health, COVID-19: Cases (last visited Aug. 10,
13 2020), https://public.tableau.com/views/COVID14 19CasesDashboard_15931020425010/Cases?:embed=y&:showVizHome=no...........................5
15 Centers for Disease Control and Prevention, Cases in the U.S., Coronavirus Disease 2019, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-
16 us.html ..........................................................................................................................................2

17 Governor Newsom Declares State of Emergency to Help State Prepare for Broader

18

Spread of COVID-19, Office of Governor Gavin Newsom (March 4, 2020), https://www.gov.ca.gov/2020/03/04/governor-newsom-declares-state-of-

19 emergency-to-help-state-prepare-for-broader-spread-of-covid-19/ ...........................................14

20 Tulare County Sheriff’s Office: Bob Wiley Detention Facility (Bob Wiley), Main Jail, Men’s Correctional Facility, the Pre-Trial Facility, and South County
21 Detention Facility (South County). Tulare County Sheriff, Detentions,
https://tularecounty.ca.gov/sheriff/index.cfm/divisions/detentions1/. .........................................1 22

23

24

25

26

27

28

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1 I. INTRODUCTION

2

Plaintiffs bring this action to prevent avoidable illness and death from COVID-19 among

3 people incarcerated at Tulare County Jails. Plaintiffs challenge Defendant Sheriff Michael

4 Boudreaux’s callous indifference to their health and safety, and his callow attempts to prevent

5 them from challenging his unconstitutional practices in court. Plaintiffs, like all Americans in this

6 pandemic, have a right to be safe and to protect themselves as best they can from a novel and

7 frightening disease. But as long as Defendant continues to ignore the widely-known risks of

8 COVID-19 in Tulare County Jails,1 the lives of Plaintiffs, and the class they seek to represent, will

9 remain imperiled.

10

Defendant’s indifference to Plaintiffs’ and the prospective class members’ health is

11 particularly notable in two regards:

12

First, contrary to the advice of the CDC, Defendant has actually worked to increase

13 overcrowding in the Jails. In just the past two weeks, Defendant has directed 148 incarcerated

14 people be transferred out of the Main Jail and into the other three active jails (i.e., Bob Wiley, the

15 Pre-Trial Facility, and South County). These transfers have resulted in a marked increase in the

16 populations of Bob Wiley and the Pre-Trial Facility to nearly 80% of their rated capacity—despite

17 the fact that the Jails as a whole are at only 57% of rated capacity. What’s more, Defendant has

18 not tested the vast majority of the 148 incarcerated people that he transferred before initiating the

19 transfers. Far from providing for social distancing, Defendant, by initiating transfers without

20 testing, has actively encouraged the spread of the disease in the resultantly overcrowded dorms

21 and cell blocks.

22

Second, Defendant has administered an inadequate and dangerously low number of

23 COVID tests—about 150 tests in total since the pandemic began—and those tests have been

24 administered only in the Pre-Trial Facility. Incarcerated people in the remaining jails have been

25

26 1 The term “Tulare County Jails” refers to the five detention facilities managed by the Tulare County Sheriff’s Office: Bob Wiley Detention Facility (Bob Wiley), Main Jail, Men’s
27 Correctional Facility, the Pre-Trial Facility, and South County Detention Facility (South County). 28 Tulare County Sheriff, Detentions,
https://tularecounty.ca.gov/sheriff/index.cfm/divisions/detentions1/.

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1 denied tests despite exhibiting multiple symptoms of COVID-19. Instead they are flippantly told

2 —contrary to all evidence—that “incarcerated people [are] not likely to get sick from the

3 coronavirus . . . .” Ex. 16 (Declaration of Adam Ibarra (“Ibarra Decl.”)) ¶ 11.

4

At the same time Defendant has ensured conditions are ripe for an outbreak in his Jails, he

5 has also sought to deter incarcerated people from seeking redress in this Court. Incarcerated

6 people seeking to meet with their attorneys have faced armed interrogation, dangerous work

7 reassignments, and unwarranted and retaliatory reclassifications. When those didn’t work,

8 Defendant implemented a Kafkaesque visitation policy that continues to prevent counsel from

9 meeting with incarcerated people. The lack of access to counsel has made it extremely difficult for

10 Plaintiffs’ to pursue relief on behalf of themselves and the proposed class.

11

The spread of COVID-19 in Tulare County’s Jails threatens both incarcerated people in the

12 Jails and people in the surrounding community: Jails staff, volunteers, and others travel in and out

13 daily, potentially carrying COVID-19 beyond the prison walls. Immediate action is thus necessary

14 to prevent needless suffering and death inside and out of the Jails, and to allow incarcerated people

15 in the Tulare County Jails to exercise their constitutional right to access the courts. Defendant

16 must immediately reduce overcrowding by using the available space in the Jails to facilitate social

17 distancing; conduct universal testing to prevent the spread of COVID-19; and allow confidential

18 attorney visits to proceed immediately without intimidation or the threat of retaliation.

19 II. FACTUAL BACKGROUND

20

COVID-19 is terribly dangerous. The virus has already killed more than 165,000 people in

21 the United States, and it may cause long-term organ damage even in people who present with

22 minimal or no symptoms.2 Congregate living facilities, like the Tulare County Jails, are at

23 particularly high risk. Ex. 2 (Declaration of Dr. Joe Goldenson (“Goldenson Decl.”)) ¶ 13.

24

25 2 Centers for Disease Control and Prevention, Cases in the U.S., Coronavirus Disease 2019,

https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. A temporary 26 restraining order is customarily granted on the basis of evidence that is less complete than what is

27

presented at a trial on the merits. Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). The Court may consider hearsay and otherwise inadmissible evidence when considering whether to

28 issue a preliminary injunction. Rep. of the Phil. v. Marcos, 862 F.2d 1355, 1363 (9th Cir. 1988).

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1

Yet Defendant continues to operate the Jails as if it’s 2019, refusing testing, and crowding

2 individuals into tight quarters despite the well-known and obvious risks. Without this Court’s

3 immediate intervention, Plaintiffs and the members of the proposed class face the high likelihood

4 of needless suffering from the virus—and in some cases, even death.

5

A. Defendant Continues to Transfer Incarcerated People to Two Overcrowded

6

Jails Despite Available Space Elsewhere

7

Social distancing is a “cornerstone of reducing transmission of respiratory diseases such as

8 COVID-19.” Ex. 1 (McDermott Decl.) ¶ 8, Ex. C at 4. The CDC recommends that correctional

9 facilities reassign bunks to allow for six feet of space between individuals, and to the extent

10 possible, minimize the number of people housed in the same room. Id. at 10–11. The CDC

11 recommends ensuring that there is no mixing among housing units by staggering meals and

12 modifying work details. Id. Correctional institutions should modify group activities and the

13 delivery of medical services to increase opportunities for social distancing. Id. These and other

14 strategies can reduce the risk of transmission even in inherently dangerous settings like

15 correctional institutions. Id.

16

Right now, the population of the Tulare County Jails is only 57% of the Jails’ total rated

17 capacity. Ex. 1 (McDermott Decl.) ¶ 13. Yet despite the available space, Defendant crams

18 incarcerated people in overcrowded housing units, including barracks-style dormitories and cells.

19 In these close quarters, it is impossible for incarcerated people to maintain at least six feet of

20 distance between themselves at any time. See, e.g., Ex. 16 (Ibarra Decl.) ¶ 3 (reporting that nearly

21 all the cells in his unit are full); Ex. 22 (Declaration of Larry Robinson (“Robinson Decl.”)) ¶ 4;

22 Ex. 19 (Declaration of Martin Martinez (“Martinez Decl.”)) ¶ 3. So many people are locked

23 together that incarcerated people also cannot keep their distance on the yard or in other common

24 areas. Ex. 19 (Martinez Decl.) ¶¶ 7, 11. Plaintiff Camposeco reports that his “unit is very full and

25 deputies don’t seem to care that we are all crowded together” despite incarcerated people’s

26 complaints. Ex. 11 (Declaration of Samuel Camposeco (“Camposeco Decl.”)) ¶¶ 3, 13. Defendant

27 28 The Court may also take judicial notice of publicly accessible websites. See King v. Cnty. of L.A.,
885 F.3d 548, 555 (9th Cir. 2018).

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1 continues to book new people into the Jails and transfer them into the already-crowded units,

2 despite significant available space elsewhere in the Jails. Ex. 19 (Martinez Decl.) ¶ 12.

3

Nor does Defendant separate out medically vulnerable people—those with certain

4 preexisting conditions, and those over age 55—who are at particularly high risk from COVID-19.

5 Ex. 2 (Goldenson Decl.) ¶ 22. Defendant has not disclosed how many medically vulnerable people

6 are currently incarcerated in Tulare County, but the number may be in the hundreds.3 None are

7 afforded even basic CDC-recommended protections for their condition, and all continue to be

8 packed indiscriminately among the general population.

9

Indeed, Defendant appears to have begun intentionally increasing crowding in three of the

10 Jails, despite CDC’s recommendations for social distancing. From July 25 to August 1, 2020, the

11 total population of the Jails remained stable. Yet during that week, Defendant inexplicably moved

12 148 individuals from the Main Jail to Bob Wiley, the Pre-Trial Facility, and South County. Ex. 1

13 (McDermott Decl.) ¶ 13. As a result of the moves, Bob Wiley’s population increased from 72% of

14 rated capacity to 80% of rated capacity—and the population of the Pre-Trial Facility (where 22

15 people have tested positive for COVID-19) skyrocketed from 56% to 74% of rated capacity. Id.

16 Meanwhile, the population of the Main Jail plunged from 61% to only 6% of rated capacity. Id.

17 These transfers were accomplished without any prior testing of the transferees. Id.

18

Despite the clear and obvious danger, and despite the fact that the Jails are significantly

19 underpopulated, Defendant continues to crowd incarcerated people together in tight spaces,

20 significantly increasing the opportunities for transmission of COVID-19. Defendant’s

21 intentionally cruel transfer policy puts incarcerated people’s health at extreme risk.

22

B. Defendant’s Testing Policy: If You Don’t Test, You Get No Positives

23

Nearly six months into the pandemic, Defendant has tested a mere 153 people in his care—

24 out of a high-turnover jail population that hovers somewhere north of 1,000. See Ex. 1

25

26 3 Defendant reports that the following incarcerated people have conditions that make them medically vulnerable: 31 have chronic lung disease or moderate to severe asthma, 2 are
27 immunocompromised, 30 people have severe obesity, 46 people have diabetes, and 60 people have 28 liver disease. See Ex. 7 (Declaration of Dylan Verner-Crist (“Verner-Crist Decl.”) ¶ 19, Ex. F at 1.
Tulare County has not disclosed the number of incarcerated people over the age of 55.

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1 (McDermott Decl.) ¶¶ 10–11, Ex. E at 1; id. Ex. F at 1. Defendant’s refusal to implement

2 widespread testing, including prior to initiating transfers, is both ineffective and dangerous. The

3 CDC recommends that facilities test anyone before transferring them to another facility—

4 especially if there is a risk that they are transferred to a facility with medically vulnerable people.

5 See Ex. 1 (McDermott Decl.) ¶ 9, Ex. D at 4; see also Ex. 3 (Declaration of Jaimie Meyer (“Meyer

6 Decl.”)) ¶ 19. The CDC also recommends testing before release. See Ex. 1 (McDermott Decl.) ¶ 9,

7 Ex. D at 4.

8

For individuals already incarcerated in the facility, the CDC recommends testing

9 symptomatic individuals and close contacts of anyone with a confirmed case of COVID-19. Id. at

10 2–3. Because correctional and detention facilities “have potential for rapid and widespread

11 transmission of SARS-CoV-2,” and contact tracing can be resource-intensive, the CDC

12 recommends “a broader testing strategy, beyond testing only close contacts within the facility to

13 reduce the chances of a large outbreak.” Id. at 3. Thus, “[b]aseline testing for all” incarcerated

14 people is recommended when there is a moderate to high level of community transmission, id.at

15 4—which Tulare County has.4 Baseline testing is particularly important because over a quarter of

16 those infected with COVID-19 may be asymptomatic but still transmit the virus. Ex. 2 (Goldenson

17 Decl.) ¶ 18. Thus, experts also recommend that correctional facilities conduct an initial test of all

18 people living and working in a correctional facility, and conduct regular follow-up testing, in order

19 to prevent the spread of the disease. Ex. 3 (Meyer Decl.) ¶ 19.

20

Defendant’s policies fall far short of these standards. Defendant has refused to conduct

21 even the initial testing that experts recommend—despite a letter from the Tulare County Superior

22 Court requesting that he do so. See Compl. Ex. 1 at 50, 52. As of July 7th, the stated policy of

23 Defendant’s medical provider, Wellpath, was to deny COVID-19 testing unless an incarcerated

24

25 4 Tulare County has a 16.7%, 7-day positivity rate for the period of July 19–July 25. Ex. 1
26 (McDermott Decl.) ¶ 17, Ex. K at 1. By contrast, the test positivity rate in California is less than
half that, with a 5.8% 7-day positivity rate. See California Department of Public Health, COVID27 19: Cases (last visited Aug. 10, 2020), https://public.tableau.com/views/COVID-
28 19CasesDashboard_15931020425010/Cases?:embed=y&:showVizHome=no. Tulare County’s test positivity rate is currently twice California’s target rate of 8% (or less).

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1 person was actively symptomatic, as defined by Wellpath. See Ex. 7 (Declaration of Dylan

2 Verner-Crist (“Verner-Crist Decl.”)) ¶ 18, Ex. E at 41. To receive a test, incarcerated people must

3 present with specific symptoms: The patient must have a cough, shortness of breath, or difficulty

4 breathing, or at least two of the following symptoms: fever of 100 degrees Fahrenheit or greater,

5 repeated shaking with chills, congestion or runny nose, new loss of taste or smell, chills, sore

6 throat, nausea, headache, muscle pain, or diarrhea. See id.; id. ¶ 20, Ex. H at 107 (example of use

7 of screening form Assessment in practice). When there is no fever, Wellpath operators are to use

8 “clinical judgment” in determining whether to test for COVID-19. Id. Ex. E at 41 (small print).

9 This policy entirely ignores the possibility that COVID-19 may be transmitted asymptomatically.

10

Worse, even those who do have symptoms consistent with COVID-19 are regularly

11 refused tests. On April 19, 2020, named Plaintiff Adam Ibarra sought medical attention for a

12 cough, chest pains, and headaches. Ex. 7 (Verner-Crist Decl.) ¶ 20, Ex. G at 105. An examination

13 determined that he had redness in the back of his throat and a dry cough, and concluded that his

14 symptoms “exceed findings for testing of COVID 19.” Id. Yet Ibarra was never given a test.

15 Instead, he was told to take Tylenol, Robitussin and an antihistamine, drink more water, and seek

16 medical help if his symptoms worsened. Id.

17

On May 20, 2020, named Plaintiff Samuel Camposeco began to experience flu-like

18 symptoms. Ex. 11 (Camposeco Decl.) ¶ 10. He requested a test, but TCSO staff refused to see

19 him. Id. It was not until nine days later that medical staff finally responded to his request. Id. ¶ 11.

20 Camposeco was handcuffed, then brought to see a nurse (despite never having been handcuffed

21 for a medical visit in the past). Id. Camposeco told the nurse that he “had body aches, a cough,

22 severe headaches, joint pain, chills, shortness of breath, and a sore throat, and that [he] was

23 worried that [he] had the coronavirus.” Id. The nurse responded by asking whether Camposeco—

24 who has been detained in the Jails since February 16, 2017—had traveled outside of the country

25 recently. Id. ¶¶ 2, 11. When Camposeco responded that he had not, the nurse “told [him he] could

26 not get a coronavirus test because [he] hadn’t traveled recently.” Id. ¶ 11. The nurse’s only advice:

27 “[D]rink more water.” Id.

28

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1

Even more recently, on July 28, 2020, Luke Rodriguez—who was imminently due to be

2 released to the home of his elderly, cancer-stricken mother—asked to be tested for COVID-19,

3 consistent with CDC guidelines. Ex. 23 (Declaration of Luke Rodriguez (“Rodriguez Decl.”)) ¶ 3;

4 see also Ex. 1 (McDermott Decl.) ¶ 9, Ex. D at 4 (Guidelines). But the nurse refused: “She told

5 me that I could not get tested without a temperature of 104 degrees Fahrenheit or higher.” Id. ¶ 4.

6 And in a disturbing coda to Camposeco’s previous request for testing, he was again denied a test

7 as recently August 5, 2020—despite ostensibly meeting the Jail’s own criteria for testing of

8 incarcerated people with symptoms. Ex. 12 (Suppl. Decl. of Samuel Camposeco) ¶ 6.

9

Defendant’s testing strategy has been ad hoc and limited, meaning that the results are

10 essentially useless to determine whether COVID-19 is present in the Jail. On June 29, 2020—five

11 months into the pandemic—Defendant announced he had (finally) conducted a first round of

12 testing. Ex. 1 (McDermott Decl.) ¶ 14, Ex. H.5 He administered a grand total of 139 tests, of

13 which 22 were positive for COVID-19. Id. ¶ 15, Ex. I. Those numbers evince an extremely high

14 rate of infection: Dividing the number of positive tests by the total number of individuals tested

15 yields a 15.8% positive test rate. Compare Ex. 3 (Meyer Decl.) ¶ 41. By contrast, California’s

16 target test positivity rate is less than 8%. Ex. 1 (McDermott Decl.) ¶ 17, Ex. K. Moreover,

17 applying the 15.8% test positivity rate to the Jail’s population as a whole (1086 people as of

18 August 1) suggests that at least 150 people went undiagnosed in the initial round of testing.

19 Compare Ex. 3 (Meyer Decl.) ¶ 43. Yet despite the high likelihood that people are suffering

20 without a diagnosis—or unintentionally passing the virus on to the medically vulnerable—

21 Defendant has declared victory. Ex. 1 (McDermott Decl.) ¶ 15, Ex. I.

22

What’s more, statistics reported by the California Board of State and Community

23 Corrections (“BSCC”) confirm that all of the tests were administered in the Pre-Trial Facility,

24 meaning that Defendant has conducted no testing at all in Bob Wiley, South County, or the Main

25 Jail—where the majority of incarcerated people are housed. Id. ¶¶ 10, Exs. E at 1. The experiences

26 of incarcerated people confirm that this is not coincidence, but policy: When Mario Escobar

27 28 5 Defendant inflated the total number of tests in his initial June Facebook announcement, claiming
more than 200 given. In fact, Defendant has not administered 200 tests since the pandemic began.

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1 sought testing on May 30, 2020, he was told that “Bob Wiley [does] not test incarcerated people.”

2 Ex. 14 (Declaration of Mario Escobar (“Escobar Decl.”)) ¶ 12.

3

Moreover, BSCC statistics indicate that between the week of July 25 and August 1,

4 Defendant transferred 148 people out of the Main Jail and into the other facilities. See Ex. 1

5 (McDermott Decl.) ¶¶ 10-13, Exs. E–F. Only 14 people were tested during that period, and all

6 were housed in the Pre-Trial Facility—meaning Defendant initiated the transfers without testing

7 the transferees. This is contrary to CDC guidelines, which recommend testing before transfers,

8 especially to a facility where medically vulnerable people are likely to be. Because Defendant

9 does not cohort medically vulnerable people, these transfers put them at especially high risk.

10

Defendant is aware of the possibility of asymptomatic transmission. Yet he refuses to

11 provide meaningful access to testing in the jail, even to those who show some symptoms—let

12 alone those who are not yet symptomatic. And he has transferred incarcerated people between

13 facilities without testing the vast majority of them. Defendant is willfully exposing incarcerated

14 individuals to the virus via unidentified, asymptomatic carriers, putting them at unreasonable risk

15 of contracting the disease themselves.

16

C. Intentional Interference with Access to Courts and Counsel

17

Incarcerated people have reported being harassed, interrogated, or retaliated against after

18 speaking to counsel about Tulare County Jail’s response to COVID-19. Defendant has also

19 interfered with incarcerated peoples’ rights indirectly, by attempting to prevent counsel from

20 contacting incarcerated people in the first place. Both civil and criminal defense attorneys have

21 had trouble meeting with retained and prospective clients, seeing multiple visits cancelled.

22 Through overt intimidation and interference, Defendant has created unacceptable, and

23 unconstitutional, barriers for incarcerated people who seek to vindicate their constitutional rights.

24

1. Defendant’s Attorney Visitation Policy Was Designed to—and Had the

25

Effect of—Chilling Incarcerated People’s Access to Courts and Counsel

26

In early May, the American Civil Liberties Union Foundation of Northern California

27 (“ACLU”) began contacting incarcerated people who had reached out to the ACLU to voice

28 concerns about the Jails’ response to the COVID-19 pandemic. See Ex. 7 (Verner-Crist Decl.)

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1 ¶¶ 3–4. On May 28, the Jails abruptly canceled all of the ACLU’s confidential legal visits. Ex. 7

2 (Verner-Crist Decl.) ¶ 7. That day, Deputy County Counsel Diane Mendez, called Kathleen

3 Guneratne, a senior staff attorney with the ACLU, to ask about the visits. Ex. 5 (Declaration of

4 Kathleen Guneratne (“Guneratne Decl.”)) ¶ 3. The next day, on May 29, TCSO promulgated a

5 new policy that required attorneys to attest that they are an “attorney of record”—meaning,

6 attorneys would no longer be permitted to meet with prospective clients. Id. Ex. E. This significant

7 restriction on the right to an attorney was unprecedented. Prior to the COVID-19 pandemic, such

8 visits were routinely allowed. Ex. 8 (Declaration of Annie Davidian (“Davidian Decl.”)) ¶ 4.

9

Guneratne wrote to Mendez twice, demanding the ACLU’s confidential attorney visits be

10 reinstated immediately. Ex. 5 (Guneratne Decl.) ¶¶ 4–5, Exs. A–B. On June 4, Defendant modified

11 the policy to affirm that attorneys could no longer meet with prospective clients. Id. Ex. F.

12

Mendez responded to the ACLU’s letter on June 10. Ex. 5 (Guneratne Decl.) ¶ 5, Ex. C at

13 2. This response made clear that the Jail’s policy was no accident, but rather part of an active

14 attempt to deny the ACLU access to prospective clients. Although prospective clients are

15 privileged and a crucial part of the attorney-client relationship, see Ex. 4 (Declaration of Stephen

16 Bundy (“Bundy Decl.”)) ¶¶ 7–8, Mendez doubled down, claiming that visits with prospective

17 clients are not protected by the attorney-client privilege and must take place on recorded lines. Ex.

18 5 (Guneratne Decl.) Ex. C at 2. Despite attempts to further engage with TCSO, Ex. 5 (Guneratne

19 Decl.) Ex. D, the policy has remained in place.

20

The ACLU has, on numerous occasions, attempted to conduct confidential legal visits with

21 retained clients—with whom, according to the policy, they should be able to meet confidentially.

22 Ex. 5 (Guneratne Decl.) ¶ 8; Ex 6 (Declaration of Amy Gilbert (“Gilbert Decl.”)) ¶ 3. But those

23 visits have been repeatedly cancelled without explanation. Ex. 6 (Gilbert Decl.) ¶¶ 6-8. TCSO

24 delayed processing ACLU attorneys’ requests for confidential visits for weeks. Id. ¶¶ 6–16. And

25 Bob Wiley recently rescinded video visitation, meaning that attorneys wishing to speak with

26 clients in that facility must be willing to expose themselves to the possibility of contracting

27 COVID-19. Ex. 7 (Verner-Crist Decl.) ¶ 21. To this day, the ACLU has not been approved to visit

28 confidentially with named Plaintiff Charles Criswell.

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1

Defendant’s policy has prevented many incarcerated people from meeting confidentially

2 with the ACLU. Id. ¶¶ 15, 21. And the policy of denying access to counsel has not been limited to

3 civil counsel. Criminal defense attorneys have also reported being denied access to their clients.

4 Ex. 8 (Davidian Decl.) ¶¶ 9, 11. Because of TCSO’s policy, some criminal defendants can meet

5 with their attorneys only during hearings. Id. ¶ 12.

6

2. Defendant Has Intimidated, Interrogated, and Retaliated Against

7

Incarcerated People Seeking to Exercise Constitutional Rights

8

May 28 was the day that TCSO cancelled all of the ACLU’s future visits. The policies at

9 the Jails changed shortly after. Even as Defendant changed his policies to make it more difficult

10 for the ACLU to meet with incarcerated people, he worked to threaten, intimidate, and retaliate

11 against incarcerated people who reached out to ACLU attorneys.

12

Intimidation and Interrogation. Mario Escobar met with an ACLU investigator on May

13 27. Ex. 14 (Escobar ¶ 5). The next day, on May 28, TCSO deputies pulled Escobar out of his cell

14 and began interrogating him about his conversation. Id. ¶ 6. Adam Ibarra was also interrogated

15 after a May 28 visit with the ACLU. Ex. 16 (Ibarra Decl.) ¶¶ 5–6. Brandon Alford was also

16 scheduled to meet with an ACLU investigator in late May. Ex. 9 (Alford ¶ 4). But before the visit,

17 deputies interrogated Alford about the purpose of his meeting. Alford refused to talk to the

18 sergeant. In retaliation, the sergeant canceled Alford’s visit with the ACLU. Id. ¶ 5.

19

Deputies also interrogated Jeffrey Nunes, who had met with an ACLU investigator. Ex 20

20 (Declaration of Jeffrey Nunes (“Nunes Decl.”)) ¶ 7. Deputies told Nunes that they would cancel

21 all future legal visits. Id.¶ 8. Later that night, Nunes was taken out of his cell and interrogated by a

22 supervising deputy—visibly armed, despite a no-firearm policy in the Jails—about his meetings

23 with the ACLU, whether he had future meetings scheduled with the ACLU, and whether he had

24 encouraged other incarcerated people to talk to the ACLU. Id.

25

Retaliation. Defendant and his staff also retaliated against incarcerated people who

26 attempted to reach out to the ACLU. In early June, Nunes, who had been employed at the farm in

27 the Pre-Trial Facility, Ex. 20 (Nunes Decl.) ¶¶ 9–10, was moved to a job cleaning cells in the

28 intake unit. Id. at 11. This job put Nunes at much higher risk of catching COVID-19. Id. ¶ 11–12.

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1

After Brandon Alford spoke with the ACLU, Defendant transferred him, without warning

2 or reason, to a high-security unit populated with people facing far more serious charges than he

3 was. Ex. 9 (Alford Decl.) ¶ 6. While there, Alford was allowed only one hour of out-of-cell time

4 per day. Id. Although Alford has since been moved to another housing unit, he retains the same

5 high-security classification he received when he was moved to the high-security unit. Id. When

6 Alford attempted to grieve the reclassification, TCSO staff refused him a grievance form. Id.

7

Adam Ibarra and Mario Escobar were also the targets of retaliation: after speaking with the

8 ACLU, in mid-July, deputies conducted unauthorized searches of their cells, and both were given

9 disciplinary infractions for offenses that others were not written up for. See Ex. 16 (Ibarra ¶ 18).

10

One of the many reasons that incarcerated people must be afforded access to confidential

11 visits with attorneys is that it allows them to speak to attorneys without fear that the information

12 could get back to those with the power to harm them. See Ex. 4 (Bundy Decl.) ¶ 9. Defendant’s

13 actions are a case study of why privileged and confidential attorney visits are so important: By

14 denying incarcerated people the right to confidential visits and retaliating against them for

15 exercising their right to challenge the conditions of their confinement, Defendant has meaningfully

16 interfered with Plaintiffs’, and the proposed class members’, right to access the courts.

17 III. ARGUMENT

18

This Court should grant a temporary restraining order (“TRO”) to immediately protect

19 incarcerated people from Defendant’s callous refusal to protect their health and safety during the

20 COVID-19 pandemic. A TRO may issue upon a showing “that immediate and irreparable injury,

21 loss, or damage will result to the movant before the adverse party can be heard in opposition.”

22 Fed. R. Civ. P. 65(b)(1)(A). To obtain a TRO, a plaintiff must establish: (1) “that [the plaintiff] is

23 likely to succeed on the merits,” (2) “that [the plaintiff] is likely to suffer irreparable harm in the

24 absence of preliminary relief,” (3) “that the balance of equities tips in [the plaintiff’s] favor,” and

25 (4) “that an injunction is in the public interest.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7,

26 20 (2008). The Ninth Circuit employs a “sliding scale” approach to Winter’s four-element test. All.

27 for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011). Under this approach, a

28 preliminary injunction or temporary restraining order may issue if the plaintiff raises at least

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1 “serious questions going to the merits” and demonstrates that “the balance of hardships tips

2 sharply in the plaintiff’s favor” as long as the plaintiff also satisfies the other Winter factors. Id. A

3 stronger showing of one element may offset a weaker showing of another. See id.6

4

Here, Plaintiffs meet the standard for a TRO. Plaintiffs have gathered significant evidence

5 that Defendant has failed to take even the most basic and well-known measures to prevent the

6 spread of COVID-19 in the Tulare County Jails. Defendant’s shocking failure to abide by CDC

7 guidelines for testing incarcerated people, or to implement policies for social distancing in the

8 Jails despite available space, has created a substantial risk to the health of all people incarcerated

9 in Tulare County Jails, in violation of their constitutional rights. All the while, Defendant has

10 engaged in a concerted and targeted effort to stymie attempts by incarcerated people to protect

11 themselves in the courts. Not only do Defendant’s actions put Plaintiffs in danger of immediate,

12 irreparable harm; they also increase the likelihood of infection in the surrounding community,

13 contrary to the public interest in a County that is already struggling with high COVID-19 infection

14 rates. A TRO should immediately issue to protect incarcerated people and the public.

15

A. Plaintiffs and the Proposed Class Are Likely to Succeed on the Merits

16

“[W]hen the State takes a person into its custody and holds him there against his will, the

17 Constitution imposes upon it a corresponding duty to assume some responsibility for his safety

18 and general well-being.” DeShaney v. Winnebago Cnty. Dept. of Soc. Servs., 489 U.S. 189, 199–

19 200 (1989); Farmer v. Brennan, 511 U.S. 825, 833 (1994) (“[H]aving stripped [incarcerated

20 people] of virtually every means of self-protection and foreclosed their access to outside aid, the

21 government and its officials are not free to let the state of nature take its course.”). This principle

22 requires correctional officials to provide adequate medical care to incarcerated people and to

23 protect them from communicable disease. See Helling v. McKinney, 509 U.S. 25, 33 (1993)

24 (holding officials may not be “deliberately indifferent to the exposure of inmates to a serious,

25

26 6 The analysis for a TRO and a preliminary injunction are “substantially identical.” See Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir. 2001); Frontline
27 Med. Assoc., Inc. v. Coventry Healthcare Workers Comp., Inc., 620 F.Supp.2d 1109, 1110 (C.D. 28 Cal. 2009) (“The standard for a temporary restraining order . . . and a preliminary injunction are
the same.”).

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1 communicable disease”); Hutto v. Finney, 437 U.S. 678, 682 (1978) (finding constitutional

2 violation where incarcerated people were placed in conditions where infectious disease could

3 easily spread). An official’s “deliberate indifference” to a substantial risk of harm from infectious

4 disease violates the Constitution. See Helling, 509 U.S. at 33.

5

Plaintiffs need not wait until the risk of an outbreak has actually materialized in order to

6 meet this standard. Prison officials act with deliberate indifference when they “ignore a condition

7 of confinement that is sure or very likely to cause serious illness and needless suffering the next

8 week or month or year,” even when that risk has not yet materialized. Id. “It would be odd to deny

9 an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on

10 the ground that nothing yet had happened to them. . . . [A] remedy for unsafe conditions need not

11 await a tragic event.” Id.

12

Plaintiffs are likely to succeed on their constitutional claims because Defendant’s response

13 to the pandemic is deliberately indifferent to the substantial risk that his policies, wholly

14 uncompliant with CDC guidelines, will cause a COVID-19 outbreak to occur in Tulare County

15 Jails—if an outbreak has not begun already.

16

1. Defendant Is Deliberately Indifferent to Plaintiffs’ Serious Medical

17

Needs, In Violation of the Fourteenth and Eighth Amendments

18

Plaintiffs are likely to succeed on the merits of their claims because Defendant’s utter

19 failure to follow CDC guidelines is deliberately indifferent, whether evaluated objectively or

20 subjectively. For pre-trial detainees, whose claims are evaluated under the Fourteenth

21 Amendment, Plaintiffs need only prove objective deliberate indifference. See Gordon v. Cnty. of

22 Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018) cert. denied sub nom. Cnty. of Orange, Cal. v.

23 Gordon, 139 S. Ct. 794 (2019). The claims of post-conviction incarcerated people ordinarily

24 require proving subjective deliberate indifference. Farmer, 511 U.S. at 842.

25

26

27

28

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1

Throughout the Jails, however, Defendant mixes pre-trial detainees together with

2 individuals held post-conviction.7 And “claims for violations of the right to adequate medical care

3 ‘brought by pretrial detainees against individual defendants under the Fourteenth Amendment’

4 must be evaluated under an objective deliberate indifference standard.” Gordon, 888 F.3d at 1124–

5 25. Thus, to prove a claim of deliberate indifference under the Fourteenth Amendment, Plaintiffs

6 held pretrial must show that:

7

(i) the defendant made an intentional decision with respect to the conditions under

8

which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial

9

risk of suffering serious harm; (iii) the defendant did not take reasonable available

10

measures to abate that risk, even though a reasonable official in the circumstances

11

would have appreciated the high degree of risk involved—making the

12

consequences of the defendant’s conduct obvious; and (iv) by not taking such

13

measures, the defendant caused the plaintiff’s injuries.

14 Id. at 1125. Here, however, it is impossible to order separate relief for pretrial and post-conviction

15 prisoners. Defendant’s policies on testing and social distancing apply equally to pretrial detainees

16 and post-conviction prisoners: Whether an individual is entitled to a test, for example, is

17 determined without reference to an individual’s conviction status. Because Defendant’s policies

18 apply equally to all incarcerated people in the Jails, the Court can consider these claims under the

19 more-protective Fourteenth Amendment. Yet even if the Eighth Amendment standard were to

20 apply, Defendant’s refusal to implement policies in the Jails responsive to the pandemic

21 demonstrates a knowing and callous disregard for the incarcerated people in his care.

22

Five months after Governor Newsom declared a state of emergency in California,8 it would

23 be impossible for any state or local official not to appreciate the significant and ongoing threat of

24

25 7 For example, both pretrial detainee Brandon Alford and Mario Escobar, who has been sentenced
26 following a trial, are housed in Bob Wiley. Compare Ex. 9 (Alford Decl.) ¶ 2; with Ex. 14 (Escobar Decl.) ¶ 2.
27 8 Governor Newsom Declares State of Emergency to Help State Prepare for Broader Spread of
28 COVID-19, Office of Governor Gavin Newsom (March 4, 2020),

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1 COVID-19. As early as mid-March, cities and states around the country began to put drastic

2 measures into place, almost entirely halting normal economic and social activities, in an attempt to

3 protect citizens from the threat of COVID-19. It is well known that the disease is highly

4 contagious and spreads rapidly in congregate settings. Ex. 2 (Goldenson Decl.) ¶ 13. “[T]he

5 seriousness of the threat posed by COVID-19—and the particular vulnerability of elderly

6 individuals as well as those with certain preexisting medical conditions—are so well known that it

7 would be implausible to suggest that prison officials are unaware of this risk.” Martinez-Brooks v.

8 Easter, No. 3:20-cv-00569, 2020 WL 2405350, at *21 (D. Conn. May 12, 2020); see also Farmer,

9 511 U.S. at 842 (“[A] factfinder may conclude that a prison official knew of a substantial risk

10 from the very fact that the risk was obvious.”).

11

Defendant himself understands the risks presented by COVID-19. On July 1, 2020, the

12 Honorable Brett R. Alldredge, presiding judge of the Tulare County Superior Court, wrote a letter

13 warning that “[t]he pandemic has come to our collective doors[,]” respectfully requesting that the

14 County “immediately implement testing of all inmates in the county jail facilities and entry

15 temperature checks for all shared county courthouse buildings open to the public.” Compl. Ex. 1.

16 Yet despite actual notice that “[t]esting all inmates would identify those individuals who have the

17 potential to spread the virus,” id., Defendant continues to withhold testing.

18

Courts across the country have concluded that COVID-19 presents a substantial risk of

19 serious harm to prisoners. See, e.g., Torres v. Milusnic, No. 20-cv-4450-CBM-PVC(x), 2020 WL

20 4197285, at *9 (C.D. Cal. July 14, 2020) (“Petitioners show they are at substantial risk of

21 exposure to COVID-19, which is inconsistent with contemporary standards of human decency.”);

22 Cameron v. Bouchard, No. 20-10949, 2020 WL 1929876, at *2 (E.D. Mich. Apr. 17, 2020), as

23 modified on reconsideration, 2020 WL 1952836 (E.D. Mich. Apr. 23, 2020) (“It cannot be

24 disputed that COVID-19 poses a serious health risk to Plaintiffs and the putative class [consisting

25 of current and future jail detainees].”); Martinez-Brooks, 2020 WL 2405350, at *21. Yet despite

26 the widespread consensus that COVID-19 poses a substantial risk of serious harm to incarcerated

27 28 https://www.gov.ca.gov/2020/03/04/governor-newsom-declares-state-of-emergency-to-help-state-
prepare-for-broader-spread-of-covid-19/.

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1 people, Defendant has made a conscious decision not to implement responsive policies. Despite a

2 lawsuit and jails operating at half-capacity, he continues to compress incarcerated people into

3 shared dorms, without any testing available even when they display symptoms. Although the CDC

4 has made clear recommendations for testing and social distancing in correctional facilities—and

5 although Defendant himself has cautioned the people of Tulare County about these measures’

6 importance, see Ex. 1 (McDermott Decl.), ¶ 16, Ex. J—Defendant has failed to propagate a clear

7 written policy implementing any of these commonsense precautions.

8

A reasonable official would have appreciated the extreme risk posed by a failure to act

9 under these circumstances. Defendant knows it. To succeed on their claims, Plaintiffs need show

10 only that Defendant acted with “more than negligence but less than subjective intent—something

11 akin to reckless disregard.” Gordon, 888 F.3d at 1125 (quoting Castro v. Cnty. of L.A., 833 F.3d

12 1060, 1071 (9th Cir. 2016)); see also Gantt v. City of L.A., 717 F.3d 702, 708 (9th Cir. 2013)

13 (explaining objective deliberate indifference “entails something more than negligence but is

14 satisfied by something less than acts or omissions for the very purpose of causing harm or with

15 knowledge that harm will result”); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1062 n.2 (9th

16 Cir. 2006) (explaining that a state actor acts with deliberate indifference by ignoring “a known or

17 obvious danger” to another created by the actor’s own conduct).

18

Here, Plaintiffs can show more: Although Defendant demonstrably understands the risks

19 posed by COVID-19, he has recklessly disregarded those risks by actively transferring people to

20 more crowded settings and by failing to implement clear and effective policies for the testing of

21 incarcerated people. Defendant’s deliberate indifference violates the Eighth Amendment, as well

22 as the Fourteenth. See, e.g., Hernandez v. Cnty. of Monterey, 110 F. Supp. 3d 929, 943 (N.D. Cal.

23 2015) (stating that “known noncompliance with generally accepted guidelines for inmate health

24 strongly indicates deliberate indifference to a substantial risk of serious harm”); Cameron, 2020

25 WL 1929876, at *2 (preliminarily finding deliberate indifference in violation of the Eighth

26 Amendment when jail “has not imposed even the most basic safety measures recommended by

27 health experts, the Centers for Disease Control and Prevention, and Michigan’s Governor to

28 reduce the spread of COVID-19 in detention facilities”).

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1

a. Defendant’s Decision to Increase Overcrowded Conditions

2

During the Pandemic Is Deliberate Indifference

3

The evidence shows that Defendant continues to cluster individuals in just a fraction of the

4 housing available in the Jails—including increasing the population of the Adult Pretrial Detention

5 Facility from 56% to 74% of capacity over the course of just one week. Ex. 1 (McDermott Decl.) ¶

6 13. This flouts well-known CDC guidance for correctional facilities, which stresses that social

7 distancing of at least six feet “is a cornerstone of reducing transmission of respiratory illnesses.”

8 Ex. 2 (Goldenson Decl.) ¶ 13. Courts elsewhere agree: “[W]ithout social distancing measures,

9 reliable containment of a highly contagious disease is nearly impossible.” Martinez-Brooks, 2020

10 WL 2405350, at *23.

11

Defendant not only refused to implement even the most basic CDC guidelines to allow

12 incarcerated people to maintain some degree of distance from one another—he has actively made

13 the situation worse, transferring individuals between jails despite the lack of testing and despite

14 the lack of protections for medically vulnerable individuals. Defendant’s intentional actions are

15 deliberately indifferent to the serious risk of harm that such overcrowded conditions pose to

16 people incarcerated in his Jails. See, e.g., Banks v. Booth, No. CV 20-849 (CKK), 2020 WL

17 3303006, at *9 (D.D.C. June 18, 2020) (granting preliminary injunction where, “[d]espite

18 widespread understanding of the importance of social distancing, Defendants have taken

19 insufficient and delayed steps to ensure that social distancing is occurring consistently.”);

20 Carranza v. Reams, No. 20-CV-00977-PAB, 2020 WL 2320174, at *9 (D. Colo. May 11, 2020)

21 (granting preliminary injunction where jail refused to provide social distancing protections for

22 medically vulnerable incarcerated people); Morales Feliciano v. Rosselló Gonzáles, 13 F. Supp.

23 2d 151, 208–09 (D.P.R. 1998) (finding that the defendant’s “inability . . . to properly isolate cases

24 of active tuberculosis” constituted deliberate indifference).

25

b. Defendant’s Refusal to Test the Vast Majority of Detainees is

26

Deliberately Indifferent

27

Defendant’s failure to implement an appropriate testing policy—including refusing to test

28 anyone in three of the four facilities currently operating—also ignores the obvious risk of harm

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1 that COVID-19 poses for incarcerated people. Infected individuals can spread COVID-19 even

2 when they are entirely asymptomatic. The complete lack of testing at intake, before transfer

3 between housing units, and prior to re-entry to the community means that Defendant is likely

4 allowing infected prisoners to interact with healthy populations and spread the virus. Without

5 testing, it is impossible for incarcerated people or TCSO staff to track the course of the disease

6 through the Jail. This risk is particularly acute for medically vulnerable people, who may be

7 unknowingly exposed to asymptomatic carriers of COVID-19.

8

It is well-established that exposing non-infected incarcerated people to contagious

9 individuals in itself constitutes deliberate indifference. See, e.g., Duvall v. Dallas Cnty., Tex., 631

10 F.3d 203, 208 (5th Cir. 2011) (upholding a finding of unconstitutional conditions of confinement

11 where officials continued to house inmates in a facility despite the existence of an extensive

12 MRSA outbreak); Laureau v. Manson, 651 F.2d 96, 98–99 (2d Cir. 1981) (upholding finding of

13 unconstitutional conditions of confinement where healthy prisoners were housed with physically

14 ill cellmates). Without an effective testing plan, Defendant all but guarantees that incarcerated

15 people will continue to be exposed to a potentially-deadly disease, without knowledge or recourse.

16

Nor can Defendant escape liability by pointing to his supposed policies on testing. Any

17 policy that results in only a small fraction of the total population of the Jails—and only those

18 housed in a single facility—receiving COVID-19 testing is simply not compliant with CDC testing

19 guidelines. And even if Defendant were to provide evidence that, following the filing of this

20 action, he began testing more people in the Jails, that would not be sufficient to defeat Plaintiffs’

21 showing. “It is well settled that a defendant’s voluntary cessation of a challenged practice does not

22 deprive a federal court of its power to determine the legality of the practice. If it did, the courts

23 would be compelled to leave the defendant . . . free to return to his old ways.” Friends of the

24 Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). Given his months-long

25 history of ignoring incarcerated people’s serious medical needs, Defendant cannot meet “the

26 heavy burden of persuading” the Court that “the challenged conduct cannot reasonably be

27 expected to start up again” in the absence of judicial intervention. Id.; see also Norton v. LVNV

28 Funding, LLC, 396 F. Supp. 3d 901, 920 (N.D. Cal. 2019). Plaintiffs reasonably fear that absent

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1 injunctive relief, Defendant will revert to his previous policy of denying testing to all but a select

2 few. Immediate injunctive relief is necessary to guarantee the protection of Plaintiffs’ health and

3 constitutional rights.

4

In sum, Defendant’s refusal to respond to the pandemic has been conscious, active, and

5 deliberate. He has chosen to put incarcerated people at great risk, disregarding the substantial risk

6 to the real possibility of unnecessary suffering and even death they face from COVID-19.

7 Plaintiffs are likely to succeed on the merits of their Eighth and Fourteenth Amendment claims.

8

2. Defendant’s Active Interference with Plaintiffs’ Attempts to Meet with

9

Counsel Violates Their First, Sixth, and Fourteenth Amendment

10

Rights, and Also Runs Afoul of the Bane Act

11

Plaintiffs and proposed class members, like all incarcerated people, have a constitutional

12 right of access to the courts under the First and Fourteenth Amendments. See Bounds v. Smith, 430

13 U.S. 817, 821 (1977). Under the First Amendment, an incarcerated person has both a right to

14 meaningful access to the courts and a broader right to petition the government for redress of

15 grievances. See Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995) (overruled on other grounds

16 in Shaw v. Murphy, 532 U.S. 223, 230 n.2 (2001)). The Fourteenth Amendment’s guarantee to

17 substantive and due process also protects incarcerated people’s right to meaningful access to the

18 courts. See Ching v. Lewis, 895 F.2d 608, 609 (9th Cir. 1990). And under the First and Fourteenth

19 Amendments, incarcerated people have a right to meaningful access to the courts “without active

20 interference by prison officials.” Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011)

21 (overruled on other grounds by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015). “The

22 opportunity to communicate privately with an attorney is an important part of that meaningful

23 access.” Ching, 895 F.2d at 609. Thus, prison officials may not arbitrarily enforce a policy that

24 prevents “effective attorney-client communication and unnecessarily abridges the prisoner’s right

25 to meaningful access to the courts.” Id. at 610; see also Casey v. Lewis, 4 F.3d 1516, 1523 (9th

26 Cir. 1993) (holding that infringement on right to meaningful access to the courts must be

27 reasonably related to legitimate penological interests).

28

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1

The Bane Act allows an individual to bring a civil action for injunctive and other

2 appropriate relief “[i]f a person or persons, whether or not acting under color of law, interferes by

3 threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion with

4 the exercise or enjoyment by any individual or individuals of rights” secured by the constitutions

5 or laws of the United States or California. Cal. Civ. Code § 52.1(b). Additionally, California state

6 prisoners (including those sentenced to serve terms in county jails) have the statutory right “[t]o

7 initiate civil actions” as plaintiffs. Cal. Pen. Code § 2601(d). “This statute has been interpreted to

8 include within its scope the right to be afforded meaningful access to the courts to prosecute those

9 civil actions.” Smith v. Ogbuehi, 38 Cal. App. 5th 453, 465 (2019).

10

Here, Defendant has actively interfered with the rights of incarcerated people to access the

11 courts in two ways.

12

First, Defendant has imposed an arbitrary policy to frustrate Plaintiffs’ and prospective

13 class members’ efforts to meet confidentially with civil rights attorneys regarding the appalling

14 conditions in the Jails. See Casey, 4 F.3d at 1520 (holding that “the main concern” of the right of

15 meaningful access to the courts is “protecting the ability of an inmate to prepare a petition or

16 complaint”). And the policy is so overbroad as to infringe at least some class members’ right to

17 counsel in their criminal cases, Ex. 8 (Davidian Decl.) ¶ 11, in violation of the Sixth Amendment.

18 See Texas v. Cobb, 532 U.S. 162, 167 (2001) (“The Sixth Amendment provides that ‘[i]n all

19 criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for

20 his defence.’”); Benjamin v. Fraser, 264 F.3d 175, 188 (2d Cir. 2001) (restrictions on attorney

21 visits resulting in significant delays violated Sixth Amendment).

22

Second, Defendant has engaged in systematic intimidation and retaliation to discourage

23 incarcerated people from attempting to access the courts. On multiple occasions, Defendant’s

24 deputies have questioned, threatened, intimidated, and retaliated against incarcerated people who

25 have spoken or attempted to speak with ACLU investigators and counsel about conditions of

26 confinement in Tulare County Jails. See, e.g., Ex. 16 (Ibarra Decl.) ¶¶ 5–7; Ex. 11 (Camposeco

27 Decl.) ¶ 6; Ex. 14 (Escobar Decl.) ¶ 8; Ex. 20 (Nunes Decl.) ¶ 10; Ex. 9 (Declaration of Brandon

28

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1 Alford (“Alford Decl.”)) ¶¶ 5–6. The Constitution prohibits precisely this type of “active

2 interference by prison officials.” See Silva, 658 F.3d at 1103.

3

Defendant’s retaliation campaign also runs afoul of the Bane Act. A reasonable person,

4 standing in the shoes of Plaintiffs and class members, would have been intimidated. See

5 Muhammad v. Garrett, 66 F. Supp. 3d 1287, 1296 (E.D. Cal. 2014). Nor does a successful Bane

6 Act claim require a specific intent to violate a person’s rights. Instead, “reckless disregard of the

7 right at issue is all that is necessary.” Cornell v. City & Cnty. of San Francisco, 17 Cal. App. 5th

8 766, 804 (2017). By suffering this retaliation to continue, Defendant has recklessly disregarded

9 Plaintiffs’ and prospective class members’ well-established statutory and constitutional rights.

10

In short, Plaintiffs have presented compelling evidence that Defendant—through his

11 restrictive visitation policy and a systematic practice of intimidation and retaliation—has impeded

12 the ability of Plaintiffs and class members to pursue relief from unconstitutional conditions of

13 confinement. Plaintiffs are likely to succeed on their claims under the First, Sixth, and Fourteenth

14 Amendments, as well as their claims under the Bane Act.

15

3. Exhaustion Requirements Do Not Bar Relief

16

Named Plaintiffs Adam Ibarra and Samuel Camposeco both filed grievances challenging

17 Defendant’s COVID-19 response, and both were denied. Compl. Ex. 2 at 4; Ex. 3 at 2. Other

18 incarcerated people at Tulare County Jails have tried to file grievances, but these efforts have met

19 with no success. In some cases, TCSO staff refuse to provide incarcerated people with grievance

20 forms. See, e.g., Ex. 22 (Robinson Decl.) ¶¶ 5–6; Ex. 9 (Alford Decl.) ¶¶ 8–9, 16. One individual

21 was told that if he grieved the Jails’ coronavirus response, “I would be put on a ‘Disciplinary

22 Infraction’ or have my classification level raised.” Ex. 22 (Robinson Decl.) ¶ 6. As a result of this

23 threat, he declined to file a grievance.

24

The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), does not require

25 exhaustion when circumstances render administrative remedies “effectively unavailable.” As the

26 Supreme Court has explained, an administrative remedy is unavailable “when (despite what

27 regulations or guidance may promise) it operates as a simple dead end—with officers unable or

28 consistently unwilling to provide any relief to aggrieved inmates” or “when prison administrators

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1 thwart inmates from taking advantage of the grievance process.” Ross v. Blake, 136 S. Ct. 1850,

2 1859–60 (2016). Here, any grievance procedures that exist are simply incapable of addressing the

3 critical health and safety needs of incarcerated people in Tulare County Jails. Because Plaintiffs

4 have exhausted their administrative remedies and an administrative remedy is effectively

5 unavailable in any case, exhaustion is not a bar to Plaintiffs’ challenge to conditions of

6 confinement at Tulare County Jails.

7

B. Plaintiffs and Proposed Class Members Will Suffer Irreparable Harm

8

Plaintiffs and proposed class members are likely to suffer irreparable harm unless this

9 Court grants a temporary restraining order requiring Defendant to implement CDC-compliant

10 testing and social distancing policies, and to refrain from interfering with incarcerated people’s

11 immediate access to counsel.

12

“It is well established that the deprivation of constitutional rights ‘unquestionably

13 constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting

14 Elrod v. Burns, 427 U.S. 347, 373 (1976)). Here, as described above, not only Plaintiffs’ and

15 proposed class members’ Eighth and Fourteenth Amendment rights are at stake; so too are their

16 constitutional rights to counsel and access to the courts.

17

Moreover, as a direct consequence of the unconstitutional conditions, Plaintiffs and the

18 proposed class face a substantial and imminent risk of serious illness. The Constitution protects an

19 incarcerated person’s right to be free from the risk, not just the fact, of infection. Incarcerated

20 people need not wait for the risk to materialize before they challenge the practices causing the risk,

21 but have a right to prospectively remedy plainly unsafe conditions. Helling, 509 U.S. at 33;

22 Fraihat v. U.S. Immigr. & Customs Enforcement, No. 19-CV-1546 JGB (SHKx), 2020 WL

23 1932570, at *27 (C.D. Cal. Apr. 20, 2020); see also Rodde v. Bonta, 357 F.3d 988, 999 (9th Cir.

24 2004) (upholding preliminary injunction where plaintiffs would suffer “delayed and/or complete

25 lack of necessary treatment, and increased pain and medical complications”). People have already

26 fallen ill at Tulare County Jails—and the lack of testing means many more may be at risk than is

27 currently known. If Plaintiffs and class members succumb to the disease while this case remains

28

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1 pending, no relief from this Court will remedy the resulting injury. The risk to Plaintiffs’ health

2 undeniably rises to the level of irreparable harm.

3

Consistent with these principles, courts across the country have concluded that correctional

4 facilities’ failure to ameliorate the risk of contracting COVID-19 constitutes irreparable harm. See,

5 e.g., Castillo v. Barr, 2020 WL 1502864, at *1 (C.D. Cal. Mar. 27, 2020) (granting TRO and

6 finding that the immigration detainee petitioners were likely to suffer irreparable harm from

7 COVID-19 when they were not kept six feet apart from other detainees); see also, e.g., Banks v.

8 Booth, No. CV 20-849 (CKK), 2020 WL 3303006, at *9 (D.D.C. June 18, 2020), appeal docketed,

9 No. 20-5216 (D.D.C. July 22, 2020); Kaur v. U.S. Dep’t of Homeland Sec., No. 2:20-cv-03172,

10 2020 WL 1939386, at *3 (C.D. Cal. April 22, 2020); Doe v. Barr, No. 20-cv-02141, 2020 WL

11 1820667, at *1, 9 (N.D. Cal. Apr. 12, 2020); Bent v. Barr, No. 19-cv-06123, 2020 WL 1812850,

12 at *1–2 (N.D. Cal. Apr. 9, 2020); Thakker v. Doll, No. 20-cv-0480, 2020 WL 1671563, at *9

13 (M.D. Pa. Mar. 31, 2020). As in those cases, Plaintiffs have presented ample evidence that

14 immediate relief is necessary to protect all incarcerated people in Tulare County Jails, especially

15 the Medically Vulnerable, from an imminent health risk.

16

C. The Balance of Equities and Public Interest Both Favor Plaintiffs and the

17

Proposed Class

18

The balance of equities tips in Plaintiffs’ favor. Plaintiffs and the class face deprivations of

19 their constitutional rights to adequate medical care and humane conditions of confinement that far

20 outweigh any injury to Defendant. Defendant has no interest in maintaining unconstitutional

21 conditions at Tulare County Jails or in unlawfully interfering with Plaintiffs’ right to access the

22 courts. See Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013) (noting that the government

23 “cannot suffer harm from an injunction that merely ends an unlawful practice”). While “[c]ourts

24 must be sensitive to the . . . need for deference to experienced and expert prison administrators,”

25 they “may not allow constitutional violations to continue simply because a remedy would involve

26 intrusion into the realm of prison administration.” Brown v. Plata, 563 U. S. 493, 511 (2011).

27 Thus, any harm to Defendant pales in comparison to the imminent threat to Plaintiffs’ health. See

28 Klein v. City of San Clemente, 584 F.3d 1196, 1207-08 (9th Cir. 2009); Mays v. Dart, No. 20-C-

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1 2134, 2020 WL 1812381, at *14 (N.D. Ill. Apr. 9, 2020) (holding in a suit challenging a jail’s

2 COVID-19 containment efforts that detainees’ interest in avoiding infection outweighs sheriff’s

3 interest in maintaining current practices).

4

The public interest also favors Plaintiffs for at least two reasons. First, Plaintiffs’ suit

5 highlights systemic constitutional deficiencies at Tulare County Jails, and “it is always in the

6 public interest to prevent the violation of a party’s constitutional rights.” Melendres, 695 F.3d at

7 1002. Second, public safety requires containing COVID-19 everywhere it exists, including within

8 Tulare County Jails. The Jails are not hermetically sealed: People enter and leave every day,

9 creating vectors to spread the virus from the Jails to the outlying community. In addition, because

10 the Jails lack resources to treat COVID-19 patients internally, an outbreak would burden local

11 healthcare facilities, straining a system that is already overtaxed by the pandemic.

12

The relief requested here—particularly widespread testing and effective policies for social

13 distancing—would protect the staff at Tulare County Jails as well as the community at large. The

14 requested actions, which will help prevent burdening hospitals and healthcare systems, and allow

15 our communities to safely reopen sooner, are undeniably in the public interest.

16

D. Good Cause Exists to Grant Plaintiffs Early Discovery

17

Plaintiffs additionally seek leave to serve early discovery. A court may allow early

18 discovery for the convenience of the witnesses and parties and in the interests of justice. Fed. R.

19 Civ. P. 26(d). Courts in this district allow discovery to commence prior to the conference required

20 by Rule 26(f) upon a showing of good cause. See Malibu Media, LLC v. Doe, 319 F.R.D. 299, 302

21 (E.D. Cal. 2016). There is good cause when the need for discovery, “in consideration of the

22 administration of justice, outweighs the prejudice to the responding party.” Id. (quoting In re

23 Countrywide Fin. Corp. Derivative Litig., 542 F. Supp. 2d 1160, 1179 (C.D. Cal. 2008)).

24

Here, Plaintiffs’ need for discovery outweighs any prejudice to Defendant. Courts

25 routinely find that the good cause test is met when a plaintiff requires information in order to be

26 able to move for a preliminary injunction. Apple Inc. v. Samsung Elecs. Co., No. 11-CV-01846-

27 LHK, 2011 WL 1938154, at *2 (N.D. Cal. May 18, 2011) (allowing expedited discovery where

28 discovery was “likely to be central to any motion for preliminary injunction”); Interserve, Inc. v.

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1 Fusion Garage PTE, Ltd., No. C 09-05812 JW (PVT), 2010 WL 143665, at *2 (N.D. Cal. Jan. 7,

2 2010) (same); cf. Hall v. Mims, No. 1:11-CV-02047-LJO-BAM, 2012 WL 1498893, at *4 (E.D.

3 Cal. Apr. 27, 2012) (denying expedited discovery in part where plaintiff failed to show

4 “emergency circumstances reasonably creating the need for a potential preliminary injunction”).

5

As described throughout the Application, the situation in Tulare County Jails is precarious,

6 and outbreaks of COVID-19 have already been reported in the Jails. What’s more, Defendant has

7 blocked Plaintiffs’ attempts to investigate the extent of the crisis at every turn, including through

8 interfering with their right to counsel and the courts. Plaintiffs require immediate discovery to

9 assess the situation in the Jails and determine whether to seek further remedial measures to protect

10 Plaintiffs and the proposed class members from the threat of COVID-19. See United States v. Erie

11 Cnty., NY, No. 09-CV-849S, 2010 WL 11578742, at *4 (W.D.N.Y. Mar. 6, 2010) (granting

12 expedited discovery in lawsuit alleging unconstitutional conditions of confinement to allow DOJ

13 “to determine whether it should seek a preliminary injunction to impose immediate remedial

14 measures to decrease the number of preventable suicides”). Plaintiffs also require immediate

15 discovery to determine whether Defendant has made additional changes in response to the

16 changing facts on the ground or any orders by this Court.

17

By contrast, the burden on Defendant is likely to be minimal. Plaintiffs seek leave to serve

18 early discovery that they would otherwise be entitled to within the course of the case. See L’Oreal

19 USA Creative, Inc. v. Tsui, No. 16-cv-8673 FMO (FFMx), 2016 WL 9275404, at *7 (C.D. Cal.

20 Dec. 22, 2016) (“The burden on defendants is de minimis, as the discovery plaintiffs [seek] is

21 what they would ordinarily seek in the course of the case.”); Sas v. Sawabeh Info. Servs. Co., No.

22 11-cv-04147 GAF (MANx), 2011 WL 13130013, at *7 (C.D. Cal. May 17, 2011) (same). This

23 Court should grant Plaintiffs leave to serve early discovery.

24 IV. CONCLUSION

25

Plaintiffs have shown a high likelihood of success on the merits of their claims and an

26 imminent threat of irreparable injury. Moreover, the balance of harms and public interest weigh in

27 favor of immediate injunctive relief. Plaintiffs therefore respectfully request that the Court grant

28 the ex parte motion for a temporary restraining order.

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1 DATED: August 12, 2020 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

MUNGER, TOLLES & OLSON LLP

By:

/s/ Sara A. McDermott

Sara A. McDermott

Attorneys for Plaintiffs

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 Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 1 of 49

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 CHARLES CRISWELL, et al.,

No. 1:20-cv-01048-DAD-SAB

12

Plaintiffs,

13

v.

14 MICHAEL BOUDREAUX, in his official capacity as Sheriff of Tulare County,
15
Defendant. 16

ORDER GRANTING APPLICATION FOR PROVISIONAL CLASS CERTIFICATION AND GRANTING MOTION FOR A TEMPORARY RESTRAINING ORDER, IN PART
(Doc. Nos. 10, 11, 25)

17

18

This matter came before the court on August 26, 2020 for a hearing on the application for

19 provisional class certification (Doc. No. 10) and motion for a temporary restraining order (Doc.

20 No. 11) filed on August 12, 2020 on behalf of plaintiffs Charles Criswell, Levi Johnson, Samuel

21 Camposeco, Adam Ibarra, and California Attorneys for Criminal Justice (“CACJ”), (collectively

22 “plaintiffs”). Attorneys Sara McDermott of Munger, Tolles & Olson LLP and Amy Gilbert of the

23 American Civil Liberties Union Foundation of Northern California (“ACLU”) appeared via video

24 for plaintiffs. Tulare County Chief Deputy County Counsel Kathleen A. Taylor, appeared via

25 video for defendant Michael Boudreaux, in his official capacity as Sheriff of Tulare County. For

26 the reasons explained below, the court will grant plaintiffs’ application for provisional class

27 certification and grant their motion for a temporary restraining order, in part.

28 ///// 1

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 2 of 49

1

BACKGROUND

2

On July 29, 2020, plaintiffs filed their complaint against defendant, alleging the following

3 five causes of action: (1) 42 U.S.C. § 1983 claim for violation of the Fourteenth Amendment of

4 the U.S. Constitution as a result of defendant’s reckless failure to act with reasonable care to

5 mitigate the risk posed by COVID-19 to pretrial detainees; (2) 42 U.S.C. § 1983 claim for

6 violation of the Eighth Amendment of the U.S. Constitution by defendant’s deliberate

7 indifference to the obvious risks posed by COVID-19 to prisoners; (3) 42 U.S.C. § 1983 claim for

8 violation of the First and Fourteenth Amendments of the U.S. Constitution as a result of

9 defendant’s active interference with the ability of plaintiffs and the proposed class to

10 meaningfully access the courts; (4) 42 U.S.C. § 1983 claim for violation of the Sixth Amendment

11 of the U.S. Constitution by defendant’s active interference with the right of plaintiffs and the

12 proposed class to access the assistance of their criminal defense counsel; and (5) California Civil

13 Code § 52.1(b) (“Bane Act”) claim that defendant interfered or attempted to interfere by threat,

14 intimidation, or coercion with the rights of plaintiffs and the proposed class, including the right to

15 initiate civil actions under California Penal Code § 2601(d). (Doc. No. 1 (“Compl.”) at 42–45.)

16

In their complaint, plaintiffs challenge defendant’s “callous indifference to their health

17 and safety” and his “callow attempts to prevent them from challenging his unconstitutional

18 practices in court.” (Compl. at ¶ 4.) Plaintiffs “bring this action to prevent avoidable illness and

19 death from COVID-19 among people incarcerated at Tulare County Jails.” (Id.) Plaintiffs

20 explain in their complaint that their use of the term Tulare County Jails “refers to the five

21 detention facilities managed by the Tulare County Sheriff’s Office: Bob Wiley Detention Facility

22 (“BWDF”), Main Jail, Men’s Correctional Facility, Adult Pre-Trial Facility (“APTF”), and South

23 County Detention Facility.” (Id. at n.1.)

24

Plaintiffs Charles Criswell, Levi Johnson, Samuel Camposeco, and Adam Ibarra are

25 currently incarcerated in the Tulare County Jails (“the Jails”). (Id. at ¶¶ 19–22.) Plaintiff

26 Criswell, a 51-year-old man who suffers from Type II diabetes and hypertension, has been

27 incarcerated since October 9, 2019 for possession of a stolen vehicle and drug possession and will

28 ///// 2

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 3 of 49
1 be in custody until February 21, 2021. (Doc. No. 11-13 at ¶¶ 2–4.) As of July 1, 2020,1 plaintiff
2 Criswell declared that he was incarcerated in the Main Jail, following his transfer from BWDF in
3 January 2020. (Id. at 2.) Plaintiff Johnson, a 60-year-old man with congenital heart failure,
4 hypertension, and respiratory problems, has been incarcerated since June 21, 2020 as a pre-trial
5 detainee facing spousal battery charges. (Doc. No. 11-17 at ¶¶ 2–3, 5.) Plaintiff Johnson is
6 currently incarcerated in BWDF, though he was initially booked into APTF and had been
7 transferred to the Main Jail in mid-July. (Id. at ¶ 6; Doc. No. 11-18 at ¶ 2.) Plaintiff Camposeco,
8 a 24-year-old man, has been incarcerated in the Jails since February 16, 2017 as a pre-trial
9 detainee facing felony murder charges. (Doc. No. 11-11 at ¶ 2.) Plaintiff Camposeco is currently
10 in custody at BWDF. (Id.) Plaintiff Ibarra, a 33-year-old man, has been incarcerated in the Jails
11 since September 20, 2019 as a pre-trial detainee facing charges for drug possession, gun
12 possession, and attempted murder. (Doc. No. 11-16 at ¶ 2.) Plaintiff Ibarra is currently
13 incarcerated in BWDF. (Id.)
14 /////
15 /////
16 /////
17 /////
18 /////
19
20 1 Plaintiff Criswell declares that because of his confinement and the COVID-19 pandemic, he was unable to sign his declaration in person, but his declaration was read to him over the phone
21 by ACLU investigator Dylan Verner-Crist on July 1, 2020. (Doc. No. 11-13 at ¶ 13.) Plaintiff 22 Criswell understood and verified the contents of his declaration and authorized Verner-Crist to
sign the declaration on his behalf. (Id.) Defendant contends that plaintiff Criswell’s declaration 23 “is stale” because Main Jail was closed in the middle of July, and plaintiff Criswell was moved at
that time to one (without identifying which) of the other three facilities. (Doc. No. 16-1 at 9.) Be 24 that as it may, plaintiffs’ counsel, ACLU attorney Amy Gilbert has declared that “[a]s of the date
of executing this declaration [July 31, 2020], over three weeks since my initial request on July 9, I 25 have still not heard from TCSO [Tulare County Sheriff’s Office] as to whether I have been 26 authorized for professional, confidential legal visits with Chris Chriswell [sic].” (Doc. No. 11-6
at ¶ 29.) In the pending motion, plaintiffs’ counsel represents to the court that “[t]o this day, the 27 ACLU has not been approved to visit confidentially with named Plaintiff Charles Criswell.”
(Doc. No. 11 at 17.) Therefore, the court does not have any evidence before it indicating in 28 which facility plaintiff Criswell is currently incarcerated.
3

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1

These incarcerated plaintiffs seek to represent a class defined as “all people who are now,

2 or in the future will be, incarcerated in Tulare County Jails, including as subclasses: (i) persons

3 confined pre-trial, (ii) persons confined pursuant to a judgment of conviction, and (iii) Medically

4 Vulnerable persons confined pre-trial and pursuant to a judgment of conviction.” (Compl. at

5 ¶ 161.)2

6

Plaintiff CACJ is “a membership organization of criminal defense attorneys practicing in

7 California,” including member attorneys who handle criminal cases in Tulare County and who

8 have current and former clients now incarcerated in the Jails. (Id. at ¶ 23.) Plaintiffs allege that

9 CACJ’s mission and goals are frustrated by “[d]efendant’s current COVID-19 policies and

10 practices,” which have caused CACJ “to expend and divert its resources” to this litigation rather

11 than spend its time on advocacy work “to advance justice, fairness, and constitutional protections

12 in the criminal justice system in the courts and the Legislature.” (Id.)

13

The allegations of plaintiffs’ complaint detail defendant’s purported failures to address the

14 threat posed by COVID-19, including the following:

15

 Maintaining an explicit policy forbidding incarcerated people from wearing masks.

(Id. at ¶¶ 9, 88–93.) 16

 Failing to provide necessary personal protection equipment, including masks, to staff

17

and incarcerated people. (Id. at ¶¶ 50–59.)

18

 Refusing to test incarcerated people for COVID-19, even those who have symptoms or

have been exposed to someone infected with COVID-19. (Id. at ¶¶ 60–65, 98–101.) 19

 Refusing to quarantine new intakes on arrival or implement appropriate quarantine

20

measures in housing units in the Jails. (Id. at ¶¶ 66–68, 108–112.)

21

 Failing to implement a social distancing plan despite the Jails having the needed space

to spread out, and instead, maintaining policies to prevent incarcerated people from

22

practicing social distancing. (Id. at ¶¶ 69–75, 102–105.)

23 2 Based on information from the Centers for Disease Control (“CDC”), plaintiffs define
24 “Medically Vulnerable” to mean people who have the following medical conditions: “type 2 diabetes mellitus; chronic pulmonary disease; serious heart conditions; sickle cell disease; chronic
25 kidney disease; immunocompromised state from solid organ transplant; and obesity” as well as 26 people who have “asthma; cerebrovascular disease; cystic fibrosis; hypertension or high blood
pressure; immunocompromised state from blood or bone marrow transplant, immune 27 deficiencies, HIV, use of corticosteroids, or use of other immune weakening medicines;
neurologic conditions, such as dementia; liver disease; pregnancy; pulmonary fibrosis; smoking; 28 thalassemia; and type 1 diabetes mellitus.” (Doc. No. 1 at ¶¶ 37, 38.)
4

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1

 Failing to provide an adequate amount of proper cleaning and hygiene supplies to

incarcerated people and failing to adequately maintain sanitary conditions in the Jails.

2

(Id. at ¶¶ 76–82, 113–115.)

3

 Failing to consider releasing incarcerated people to reduce the population in the Jails

to make social distancing possible, including considering at a minimum, releasing the

4

Medically Vulnerable to home confinement until social distancing is possible. (Id. at

¶¶ 116–125.)

5

 Refusing to be transparent about his response to COVID-19 in the Jails, including

6

obfuscating and hiding from public scrutiny any information about his response, or

lack thereof, to COVID-19. (Id. at ¶¶ 126–130.)

7

8

In addition, plaintiffs have alleged several specific instances of retaliation and

9 intimidation taken against incarcerated people who challenge these purportedly unconstitutional

10 conditions of confinement, whether through the internal grievance procedure in the Jails or by

11 seeking legal assistance and access to the courts. (Id. at ¶¶ 83–87, 131–144.) For example,

12 incarcerated people who have spoken to the ACLU investigator and attorneys have been: (i)

13 repeatedly questioned by deputies about why they were meeting with the ACLU and what was

14 discussed during their legal visits (including one instance of questioning by an armed deputy); (ii)

15 transferred to less desirable work as a cleaner in the intake unit, which carries a higher risk of

16 exposure to COVID-19 due to defendant’s failure to quarantine newly-booked incarcerated

17 people; and (iii) reclassified as high-security inmates and transferred to a high-security unit,

18 despite not facing as serious charges as the others housed in that unit. (Id. at ¶¶ 131–144.)

19 Several incarcerated people, including the named plaintiffs, have also had their legal visits

20 cancelled and have been prevented from having confidential legal visits with counsel. (Id. at ¶¶

21 141–144.)

22

Plaintiffs further allege that in response to their counsel’s investigation, defendant

23 promulgated a new legal visitation policy on May 29, 2020 designed to frustrate the ability of

24 incarcerated people to participate in confidential legal visits in the Jails. (Id. at ¶¶ 13–14, 145–

25 157.) On June 4, 2020, defendant issued a memo outlining these new restrictions, which

26 specifically limit legal visits to attorneys who had already been designated as an incarcerated

27 person’s “attorney of record,” thereby precluding attorneys from meeting confidentially with

28 prospective clients or current clients for whom a lawsuit has not yet been filed. (Id.) Plaintiffs 5

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 6 of 49

1 contend that this policy on its face interferes “with the attorney-client privilege at the most critical

2 stage, i.e. the first meeting before an attorney has even entered an appearance on behalf of a

3 client.” (Id. at ¶ 145.) In practice, since the promulgation of this new policy, “no potential class

4 members have been afforded a confidential meeting with ACLU attorneys,” and “criminal

5 defense attorneys have also found their clients’ access cut off.” (Id. at ¶¶ 14, 146.) Moreover,

6 plaintiffs allege that even after their attorneys complied with the requirements of defendant’s

7 new policy, plaintiffs’ attorneys were unable to schedule visits because no matter which date or

8 time they selected on the required form appearing online, they received an error message stating

9 “No stations available.” (Id. at ¶ 153.) Plaintiffs’ counsel has been able to communicate with

10 plaintiffs only through short phone calls on recorded phone lines, or on recorded video feeds. (Id.

11 at ¶ 154.) In their complaint, plaintiffs allege that “[i]mmediate injunctive relief is crucial to

12 restore confidential legal visits at Tulare County Jails and to cease [d]efendant’s ongoing

13 constitutional violations.” (Id. at ¶ 157.)

14

On August 12, 2020, plaintiffs filed the pending application for provisional class

15 certification (“Application”) and the pending motion for a temporary restraining order

16 (“Motion”), seeking a court order requiring defendant to “immediately reduce overcrowding by

17 using the available space in the Jails to facilitate social distancing; conduct universal testing to

18 prevent the spread of COVID-19; and allow confidential attorney visits to proceed immediately

19 without intimidation or the threat of retaliation.” (Doc. Nos. 10; 11 at 10.) Plaintiffs contend that

20 “[i]mmediate action is [] necessary to prevent needless suffering and death inside and out of the

21 Jails, and to allow incarcerated people in the [] Jails to exercise their constitutional right to access

22 the courts.” (Doc. No. 11 at 10.) Plaintiffs seek provisional class certification for the purposes of

23 the emergency relief requested because all members of the proposed class “are affected by

24 [d]efendant’s inadequate response to COVID-19 and are in urgent need of protection.” (Doc. No.

25 10 at 3.)

26

In addition to their own declarations, plaintiffs filed several declarations in support of

27 their Application and Motion, including declarations attesting to the conditions of confinement in

28 the Jails from four pre-trial detainees currently incarcerated in the BWDF (Doc. Nos. 11-9 6

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 7 of 49

1 (“Alford Decl.”); 11-10 (“Bradbury Decl.”); 11-22 (“Robinson Decl.”); 11-23 (“Rodriguez

2 Decl.”)), five sentenced prisoners currently incarcerated in the Jails (Doc. Nos. 11-14 (“Escobar

3 Decl.”); 11-15 (“Hernandez Decl.”); 11-19 (“Martinez Decl.”); 11-21 (“Redmon Decl.”); 11-24

4 (“Ward Decl.”)), and one individual who was formerly incarcerated in APTF (Doc. No. 11-20

5 (“Nunes Decl.”). Regarding COVID-19 specifically and health care in correctional facilities,

6 plaintiffs submit the declarations of Dr. Joe Goldenson, a physician with 33 years of experience in

7 correctional health care (Doc. No. 11-2), and Dr. Jaimie Meyer, an Associate Professor of

8 Medicine and Clinical Professor of Nursing at Yale University (Doc. No. 11-3). Regarding

9 plaintiffs’ concerns with respect to the impact of defendant’s legal visitation policy on attorney-

10 client privilege and access, plaintiffs have submitted the declarations of Stephen Bundy, a lawyer

11 and Professor of Law, Emeritus at Berkeley Law (Doc. No. 11-4) and Annie Davidian, a local

12 criminal defense attorney who has approximately twenty-five clients currently incarcerated in the

13 Jails (Doc. No. 11-8).

14

On August 20, 2020, defendant filed his oppositions to the Application and Motion. (Doc.

15 Nos. 15, 16). In support of his oppositions, defendant filed declarations from officials in the

16 Tulare County Sheriff’s Department (“TCSD”) including Captain Gabriel Macias (Doc. No. 15-

17 2), Lieutenant Cory Jones (Doc. No. 15-3), Assistant Sheriff Cheri Lehner (Doc. No. 15-4),

18 Lieutenant Cyrena Robles (Doc. No. 15-6), and Undersheriff Tom Sigley (Doc. No. 15-7).

19 Defendant also filed a declaration from Kevin Silveira, the Health Services Administrator for

20 Wellpath, which contracts with TCSD to provide medical services in the Jails. (Doc. No. 15-5).

21

On August 24, 2020, plaintiffs filed their replies to defendant’s oppositions to the pending

22 Application and Motion. (Doc. Nos. 17, 18.) In further support of their motion, plaintiffs also

23 filed supplemental declarations from plaintiffs’ attorney Sara McDermott and ACLU investigator

24 Dylan Verner-Crist. (Doc. Nos. 18-1, 18-2.)

25

FACTS

26

Based on the evidence that the parties have submitted to the court, the relevant facts are

27 summarized as follows.

28 ///// 7

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 8 of 49

1 A. COVID-19 and CDC Guidance

2

COVID-19 is a serious and highly contagious respiratory disease that has reached

3 pandemic status. (Doc. No. 11-2 at ¶¶ 6, 7.) COVID-19 “is transmitted between persons in close

4 proximity (within about six feet) by airborne droplets released by infected individuals when they

5 cough or sneeze.” (Id. at ¶ 7.) COVID-19 symptoms may appear 2–14 days after exposure and

6 “may include fever, cough, and shortness of breath or difficulty breathing,” though infected

7 individuals do not always exhibit symptoms and these asymptomatic individuals can still transmit

8 the disease to others. (Id. at ¶¶ 8–9.) There is presently no cure, effective treatment, or vaccine

9 for COVID-19. (Id. at ¶ 10.) However, widely recognized preventative measures include:

10 “social distancing (keeping persons separated by at least six feet), frequent handwashing, and

11 respiratory hygiene (e.g., covering mouth and nose when coughing or sneezing), and frequent

12 cleansing of surfaces to prevent infection and the spread of the virus.” (Id. at ¶ 11.)

13

The risk of exposure and transmission of COVID-19 is particularly high in jails and

14 prisons where people are crowded in close quarters with limited ability to practice preventative

15 measures. (Id. at ¶¶ 12–16.) Recognizing this fact, the Centers for Disease Control (“CDC”) has

16 issued guidance specifically for correctional facilities “to assist in preparing for potential

17 introduction, spread, and mitigation of [COVID-19] in their facilities,” (“CDC Guidelines”).

18 (Doc. No. 11-1, Ex. C, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-

19 19) in Correctional and Detention Facilities, available at https://www.cdc.gov/coronavirus/2019-

20 ncov/community/correction-detention/guidance-correctional-detention.html (last updated July 22,

21 2020)). The CDC Guidelines recommend the following strategies to be employed to help prevent

22 the spread of COVID-19 within correctional facilities: “reinforcing hygiene practices;

23 intensifying cleaning and disinfection of the facility; regular symptom screening for new intakes,

24 visitors, and staff; continued communication with incarcerated/detained persons and staff; social

25 distancing measures; as well as, testing symptomatic and asymptomatic individuals in

26 correctional and detention facilities.” (Id.) In addition, the CDC guidelines recommend the

27 following strategies to help facilities clinically manage persons with confirmed and suspected

28 COVID-19 inside the facility: “medical isolation and care of incarcerated/detained persons with 8

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 9 of 49

1 COVID-19 (including considerations for cohorting), quarantine and testing of close contacts,

2 restricting movement in and out of the facility, infection control practices for interactions with

3 persons with COVID-19 and their quarantined close contacts or contaminated items, intensified

4 social distancing, and cleaning and disinfecting areas where infected persons spend time.” (Id.)

5

With regards to testing, the CDC Guidelines state: “Testing symptomatic and

6 asymptomatic individuals and initiating medical isolation for suspected and confirmed cases and

7 quarantine for close contacts can help prevent the spread of SARS-CoV-2, the virus that causes

8 COVID-19, in correctional and detention facilities.” Interim Considerations for SARS-CoV-2

9 Testing in Correctional and Detention Facilities, available at https://www.cdc.gov/coronavirus/20

10 19-ncov/community/correction-detention/testing.html (last updated August 10, 2020). The CDC

11 Guidelines advise that facilities “consider” various strategies, including “[b]aseline testing for all

12 current [incarcerated or detained persons].” Id.3

13 /////

14 /////

15 3 On August 27, 2020, defendant filed a motion to supplement his opposition to the pending

16 Motion by providing the court with copies of recent CDC guidance documents, some of which

were updated by the CDC after defendant filed his response. (Doc. Nos. 22, 25.) That motion 17 will be granted. However, the court was already aware of those updates and notes that as recently

18

as August 24, 2020, the CDC revised their generally applicable recommendations (not those relating to jails and prisons) on testing, reversing its prior recommendations, and now advising

19 that people who “have been in close contact (within 6 feet) of a person with a COVID-19

infection for at least 15 minutes but do not have symptoms” “do not necessarily need” to be

20 tested. Overview of Testing for SARS-CoV-2 (COVID-19), https://www.cdc.gov/coronavirus/201

9-ncov/hcp/testing-overview.html (last updated August 24, 2020). Nonetheless, that apparent 21 reversal by the CDC in its generally applicable recommendations came on the heels of a CDC

22 weekly report issued just three days earlier on August 21, 2020, in which the CDC found that “mass testing irrespective of symptoms, combined with periodic retesting, can identify infections

23 and support prevention of widespread transmission in correctional and detention environments,”

and concluded that “[i]n correctional and detention facilities, broad-based SARS-CoV-2 testing

24 provides a more accurate assessment of disease prevalence than does symptom-based testing and

generates data that can potentially help control transmission.” Mass Testing for SARS-CoV-2 in 25 16 Prisons and Jails — Six Jurisdictions, United States, April–May 2020, available at

26 https://www.cdc.gov/mmwr/volumes/69/wr/mm6933a3.htm?s_cid=mm6933a3_w (last visited on August 31, 2020). Of course, whatever the actual applicable CDC guidance is here, as one

27 district court has recently observed, “the CDC Guidelines represent the floor, not the ceiling, of

an adequate response to COVID-19 at the Jail . . ..” Ahlman v. Barnes, 445 F. Supp. 3d 671, 691

28 (C.D. Cal. 2020).

9

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 10 of 49

1 B. The Jails

2

Although plaintiffs identify five facilities in their complaint, TCSD currently operates

3 only three of those detention facilities: Adult Pre-Trial Facility (“APTF”), Bob Wiley Detention

4 Facility (“BWDF”), and the South County Detention Facility. (Doc. No. 15-2 at ¶ 3.) As to the

5 other two facilities referenced in plaintiffs’ complaint, defendant closed the Main Jail on August

6 1, 2020 (Doc. No. 15-4 at ¶ 15)4, and the Men’s Correctional facility has been inactive since

7 inmates were transferred out of that facility in September 2019 (Doc. No. 15-3 at ¶ 2).

8

The California Board of State and Community Corrections (“BSCC”) reports that as of

9 April 24, 2020, the rated capacities for the three active facilities are as follows: 384 inmates for

10 APTF, 696 inmates for BWDF, and 510 inmates for the South County Detention Facility. (Doc.

11 No. 11-1 at ¶ 12–13, Ex. G at 57.) Following the transfer of the 148 individuals who had been

12 incarcerated at the Main Jail to the other detention facilities, the population in each of those

13 facilities as of August 1, 2020 was as follows: 285 inmates in APTF, 558 inmates in BWDF, and

14 226 inmates in the South County Detention Facility. (Doc. No. 11-1 at ¶ 11, Ex. F at 53.) For the

15 reporting period of August 9–15, 2020, the BSCC reports the following populations: 281 in

16 APTF, 573 in BWDF, and 277 in the South County Detention Facility.5 Accordingly, the

17 population as a percent of the rated capacities for each of defendant’s facilities are as follows:

18 73% for APTF, 82% for BWDF, and 54% for South County Detention Facility.

19

According to defendant, South County currently has an empty unit, “which may be used if

20 an outbreak requires additional prisoner movement and/or separation.” (Doc. No. 15-2 at ¶ 9.)

21 With the exception of one housing unit in BWDF, which is a dormitory style unit of 25 female

22 prisoners who live and program together as kitchen workers, all prisoners are now housed in one

23 4 The Mail Jail was built in the late 1950s and had multiple ongoing problems related to its age
24 and design, including flooding. (Doc. No. 15-2 at ¶¶ 5–6.) As a result, the closing of the Main Jail had “been a part of future planning for some years.” (Id.) The fourth floor of the Main Jail
25 was closed in January 2020 due to flooding, and the other two housing floors were shut down in 26 late July. (Id.) “As a coronavirus prevention measure, no new prisoners were admitted to the
housing floors for 30 days prior to the prisoners being moved to other facilities.” (Id. at ¶ 6.)
27 5 See BSCC website at https://public.tableau.com/profile/kstevens#!/vizhome/BSCCCOVID-
28 19inDetentionFacilitiesDashboard/Instructions.
10

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 11 of 49

1 or two person cells in the three active detention facilities. (Id. at ¶ 7.) The single cells in each

2 facility are consistently occupied because of classification concerns requiring that certain

3 prisoners be housed alone. (Id. at ¶ 8.) Currently, all of the single cells are in use, except for

4 those in the infirmary that are reserved for medical use. (Id. at ¶ 9.)

5 C. Defendant’s Response to COVID-19

6

In consultation with Wellpath and local public health officials, TCSD “has implemented

7 and continues to implement measures to mitigate the risks related to coronavirus.” (Doc. No. 15-

8 4 at ¶ 2.) According to defendant, a wide variety of additional precautions are currently in place

9 in the Jails to prevent the spread of COVID-19, including: “posting of CDC posters regarding

10 steps to prevent the spread of germs for all inmates/detainees []; access to bar soap and water for

11 inmates/detainees; a 14 day quarantine period and testing for all new intakes; access to hygiene

12 and cleaning supplies for inmates/detainees; enhanced sanitation protocols implemented in the

13 detention facilities; segregation and isolation of symptomatic, exposed, or positive inmates and

14 detainees in three housing locations; wearing of masks by detentions staff in the facilities;

15 wearing of masks by inmates/detainees when outside their cells with daily replacements provided;

16 temperature checks on inmates when they enter and exit the facility or perform work details;

17 [and] verbal screening and temperature checks of all staff entering a facility.” (Doc. No. 15-4 at

18 ¶ 3.)6

19 6 Defendant initially prohibited all use of masks in the Jails, but that policy was finally changed
20 on July 30, 2020—the day after plaintiffs filed their complaint in this action. (Doc. Nos. 11-1 at 13; 15-4 at ¶ 4; 11-18 at ¶ 3.) Defendant contends that under its current policy, masks are
21 provided, and all staff are required to wear masks in the Jails and all inmates are required to wear 22 masks, except when in their own cells. (Doc. No. 15-4 at ¶ 4.) Although plaintiffs had
anticipated requesting injunctive relief to require defendant to create a CDC-compliant, written 23 mask policy, plaintiffs’ pending motion does not seek any such relief because plaintiffs’ counsel
and defense counsel met and conferred before plaintiffs filed the pending motion and had 24 expressed optimism that a resolution of this issue could be reached without need for litigation on
this issue. (Doc. No. 11-1 at ¶¶ 4, 7.) Plaintiffs’ counsel notes, however, that as of the date of 25 filing their replies, “[d]efendant has [] failed to make good on his agreement to meet and confer 26 on the masking policy.” (Doc. No. 18 at 16 n.6.) At the hearing on the pending motion, defense
counsel confirmed that there still as of that date had not been a follow-up to meet and confer with 27 plaintiffs’ counsel, but assured the court that defendant was working on memorializing the current
masking policy in writing. (Hr’g Tr. at 28–30.) The court notes, however, that the current 28 masking policy was purportedly enacted nearly a month ago, and the fact that defendant has yet to
11

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 12 of 49

1

1. COVID-19 Testing

2

On June 26, 2020, an employee at APTF tested positive for COVID-19. (Doc. No. 15-4 at

3 ¶ 11.) TCSD tested only the inmates in the unit where this employee worked and, according to

4 Assistant Sheriff Lehner, “[e]leven (11) of these inmates tested positive, two (2) refused to submit

5 to a test, the fifteen (15) inmates that tested positive or were at risk of testing positive, were

6 immediately moved into a sanitized unit and single celled for quarantine.” (Id.) The court is

7 puzzled by this declaration because the math does not appear to add up—11 plus 2 does not equal

8 15. Though Lehner does not explicitly state the total number of inmates who were administered

9 tests for COVID-19, she does state that 22 tested negative. (Id.) Thus, at least 11 of 35 people

10 (or 31%) tested positive from this single unit at APTF. Defendant did not administer tests in any

11 other unit as a result of this known outbreak inside the facility.

12

Then, at some unspecified later date, an inmate housed in a different unit in APTF also

13 tested positive for COVID-19, and “[i]nmates and staff from this unit were all tested, resulting in

14 some positive tests.” (Doc. No. 15-4 at ¶ 12.) However, defendant does not specify how many

15 inmates were tested in this instance nor does defendant report how many inmates tested positive,

16 and defendant’s counsel was unable to provide any specifics whatsoever in this regard at the

17 hearing on the pending Motion. (Hr’g Tr. at 6–7.) Again, defendant did not administer tests to

18 inmates in any other unit as a result of this second known outbreak.

19

Beyond the limited testing associated with these two known outbreaks of the virus, TCSD

20 has not conducted any widespread testing of other inmates. Notably, both of these outbreaks

21
22 memorialize any such policy in writing is quite concerning to the court, particularly in light of the fact that the COVID-19 pandemic and the risks it presents have been well known for over five
23 months. Accordingly, although not requested by plaintiffs—who had been optimistic of an informal resolution of this issue that for some unexplained reason defendant has not brought to
24 fruition—the court concludes that injunctive relief on this issue is now necessary and will order defendant to develop written policies with respect to masking in the Jails. Relatedly, defendant
25 previously limited the amount of soap and cleaning supplies provided to inmates at the Jails. 26 However, according to defendant, under the current policy, TCSD deputies “have been instructed
to provide new bars of soap upon request by any inmate” and cleaning supplies are available upon 27 request. (Doc. No. 15-2 at ¶¶ 12, 15.) Because plaintiffs do not challenge defendant’s purported
new policies regarding soap and cleaning supplies in their pending motion, the court will not 28 address these purported policies in this order. (See Doc. No. 18 at 5.)
12

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 13 of 49

1 occurred in APTF. Defendant has not presented any evidence that inmates from any of the other

2 facilities have been tested for COVID-19. Defendant also does not present any evidence (or even

3 assert) that the inmates who were transferred out of the Main Jail had been tested prior to being

4 moved to the other facilities. Indeed, BSCC’s reported COVID-19 testing data for the Jails shows

5 that zero incarcerated people were tested for COVID-19 both in BWDF and the South County

6 facility during the reporting period of August 9–15, 2020. (See Doc. No. 18-1, Ex. M.) During

7 that same period, BSCC reports that 52 incarcerated people in APTF were tested. (Id.)

8 Presumably, those 52 tests were conducted on new inmate intakes as part of TCSD’s new testing

9 plan, which was not enacted until July 14, 2020. (Doc. No. 15-4 at ¶ 13.) Under that plan, “fresh

10 bookings” are to be screened at intake to see if administration of a COVID-19 test is required

11 (i.e., if the new inmates have a fever above 100.4 and symptoms of respiratory illness), and they

12 remain housed in the Observation Unit at APTF for a 14-day observation period, after which they

13 receive a COVID-19 test. (Id.; Doc. No. 15-5 at ¶ 3.) Lehner declares that “[a]dditional inmates

14 have been placed in isolation based on positive tests, or refusal to test, during the Observation

15 period.” (Doc. No. 15-4 at ¶¶ 13, 14.) Again, actual figures are not provided in the declarations

16 submitted to the court by defendant, and defense counsel was unable to provide the court with any

17 details in that regard at the hearing. (Hr’g Tr. at 6–7.) In fact, defendant conceded that there has

18 been no testing of any inmates held in the BWDF and South County facilities at all. (Id. at 5–6.)

19

Aside from the COVID-19 testing process for new intakes, testing of all other inmates

20 only takes place if a clinician screens an inmate during a medical visit and determines that testing

21 is clinically indicated. (Doc. No. 15-5 at ¶ 12.) Even there, defendant has not come forward with

22 any evidence about the number of inmates, if any, that have been tested as a result of this medical

23 screening process. Considering the BSCC’s report and defendant’s concession that zero tests

24 were conducted at the other two detention facilities, the court is skeptical that any tests are being

25 performed beyond those for new intakes under observation.

26

2. Screening and Quarantining Efforts

27

According to defendant, as of July 14, 2020, the Jails use the following procedure for

28 isolation, quarantine, and observation: 13

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 14 of 49

1

1. Isolation Unit - Inmates who tested positive will be isolated for

14 days and must be symptom free for the last 3 days of isolation. If

2

they are not symptom free for the last 3 days, then the isolation period

will be extended an additional 7 days until symptom free for the last

3

3 days. This would be a 21-day maximum isolation. If they are

symptom free or qualify for release from isolation under CDC

4

guidelines, they can return to general population.

5

2. Quarantine Unit - Inmates that have been exposed to a positive

case of COVID -19 will be monitored by Wellpath daily. They will

6

be tested at day(s) 1, 7 and 14. If all tests come back negative and

they are symptom free, they will be transferred back to general

7

population. If they test positive they will be moved to the isolation

unit to begin the 14 day isolation protocol.

8

3. Observation Unit - All fresh bookings are housed in this unit for

9

14 days. If the arrestee shows symptoms at the time of booking, they

will be sent to the negative air flow cells pending test results. If they

10

test positive they will be sent to the isolation unit, if they test negative

they will be sent to the quarantine unit and the above listed protocols

11

will be followed. All others will be sent to the observation unit and

will be monitored daily by medical staff. If they are symptom free

12

after 14 days, they are tested. If negative, they are moved into

general population. If positive, they are placed in isolation and

13

quarantine is extended for contacts based on the new exposure.

14 (Doc. No. 15-4 at ¶ 13.) However, there is no evidence before the court that this procedure has

15 been memorialized in writing, or that any related policies (such as policies defining terms and

16 setting out operational details as to implementation) exist at all, let alone in writing.

17

Additional measures being taken by defendant include that “[a]ll inmates leaving the

18 facility for court or medical transports are being screened prior to leaving the facility and upon

19 return to the facility,” and “all inmates on a work program are being screened daily by Wellpath

20 prior to going to their work assignments.” (Doc. No. 15-4 at ¶ 5.) But, as plaintiffs note,

21 Wellpath is apparently using screening criteria from early March 2020 and the screening form

22 appears to be remarkably outdated—stating, for instance, that most COVID-19 infections are

23 associated with travel to Wuhan, China, and directing the screener to ask whether the patient has

24 spent time in China, Iran, S. Korea, Italy, and Japan. (See Doc. No. 15-5 at 10.)

25

3. Social-Distancing Efforts

26

Defendant has also not presented any evidence to the court of an adoption of any sort of

27 comprehensive social distancing policy. Instead, defendant asserts that a handful of distinct

28 efforts have been implemented (though it is unclear when those efforts were undertaken, or if 14

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 15 of 49

1 they are memorialized anywhere in writing).7 First, defendant established keeping cellmates

2 together “as a housing priority to reduce the potential for cross-contamination.” (Doc. No. 15-2

3 at ¶ 10.) But, as one inmate has declared, “[i]t is impossible to stay six feet away from your

4 cellmate when in your cell.” (Doc. No. 11-19 at ¶ 3.) Second, “[s]igns and markings have been

5 installed in each facility to create awareness of COVID-19 and its symptoms and to encourage

6 social distancing.” (Doc. No. 15-2 at ¶ 21.) Third, the court is told that “[p]risoners are

7 transported in reduced numbers to allow for distancing.” (Id. at ¶ 22.) Fourth, TCSD

8 implemented a plan at APTF “to stage inmates in the hallway at 6 ft. apart while awaiting video

9 court.” (Doc. No. 15-4 at ¶ 17.)

10 D. Legal Visitation Policy in the Jails

11

The video visitation process in the Jails is operated by an outside vendor, and it allows for

12 authorized persons to set up confidential video conference visits online. (Doc. No. 15-6 at ¶ 3.)

13 In May 2020, Undersheriff Sigley was informed8 that the confidential video conferencing system

14 may have been being misused based on two reported incidents of an ACLU investigator allegedly

15 meeting with inmates who did not expect to meet with him and did not want to talk to him. (Doc.

16 No. 15-7 at ¶ 3.) In the first incident, the inmate reportedly thought he would be visiting with his

17 wife. (Id.) In the second incident, the inmate allegedly reported feeling pressured and disturbed

18 by the interaction with the ACLU investigator who told her that he could get her released. (Id.)

19 Undersheriff Sigley declares only that “[a] review of a report on the visits reflected that access

20 was not being limited to those who qualified for confidential visits,” (id. at ¶ 4) and that

21 “[v]arious inmates were interviewed as a part of the investigation into whether the ACLU

22 investigator had arranged confidential visits under false pretenses,” (id. at ¶ 7).

23

Plaintiffs’ version of the events is that it was in fact deputies, not any ACLU investigator,

24 who threatened and intimidated inmates and in one instance did so while armed. Plaintiffs have

25 7 The only social-distancing related assertion that provides a date reference is Assistant Sheriff 26 Lehner’s statement that she visited the South County facility on April 23, 2020 and observed
medical staff and TCSD staff maintaining social distancing as safety permitted. (Doc. No. 15-4 at 27 8.) Her declaration does not address social distancing of inmates.

28 8 Who it was that allegedly so informed Undersheriff Sigley is not identified by defendant. 15

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 16 of 49

1 provided evidentiary support for their position by way of sworn declarations from inmates who

2 felt threatened and intimidated by the deputies who repeatedly asked about the inmates’ visits

3 with the ACLU, specifically demanding to know what was discussed, why inmates were talking

4 to the ACLU, which other inmates were also talking to the ACLU, and if additional visits had

5 been scheduled. (See Doc. Nos. 11-14 at ¶¶ 5–6; 11-20 at ¶¶ 8–9.) For example, inmate Mario

6 Escobar declares that he met confidentially with ACLU investigator Verner-Crist on May 27,

7 2020, and the next day, he was pulled out of his unit by deputies and questioned about that visit.

8 (Doc. No. 11-14 at ¶¶ 5, 6.) He refused to answer the deputies’ questions but it “was clear to

9 [him] that they were trying to intimidate [him] out of speaking with ACLU staff about the lack of

10 coronavirus prevention in the jails.” (Id. at ¶ 6.) Similarly, on May 28, 2020, inmate Jeffery

11 Nunes was questioned by Sergeant O’Rafferty and Commander Garcia about why he was talking

12 with the ACLU and what the ACLU was asking him about, to which Nunes answered that he was

13 talking to the ACLU about conditions in APTF. (Doc. No. 11-20 at ¶ 8.) Inmate Nunes was told

14 that his legal visits with Verner-Crist were going to be cancelled. (Id.) As a result, inmate Nunes

15 felt threatened and was reluctant to speak with Verner-Crist after that. (Id. at ¶ 9.) Even though

16 plaintiffs’ declarations were served on defendant weeks ago, defendant has not come forward

17 with any evidence refuting plaintiffs’ version of these events.

18

In addition, in his supplemental declaration Verner-Crist describes his extensive

19 experience interviewing incarcerated individuals in connection with his investigations in

20 prisoners’ rights cases, and he asserts that the allegations referenced by Undersheriff Sigley “do

21 not comport with [his] practice, experience or recollection,” and that he “did not pressure any

22 interviewee with whom [he] spoke” nor “promise to get someone released.” (Doc. No. 18-2 at

23 ¶¶ 4–6.) Verner-Crist further explains that with respect to inmates he interviewed in connection

24 with this case “[a]t the beginning of each interview, [he] told each of them that [he] was an

25 investigator with the ACLU, a civil rights organization, that the interview was completely

26 voluntary, and that [he] wanted to speak with them about whether they had any concerns about

27 how TCSD was preparing for the coronavirus pandemic.” (Id. at ¶ 8.) According to Verner-

28 Crist, everyone he spoke to had agreed to speak with him, and they all indicated interest in 16

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 17 of 49

1 speaking to him again except for one person who said he was unsure if he wanted to do so again

2 but that he would think about it and contact Verner-Crist if he was interested in doing so. (Id. at

3 ¶¶ 8, 9.) Verner-Crist declared that he is “unable to identify who allegedly made [the] remarks”

4 referenced in Undersheriff Sigley’s declaration. (Id. at ¶ 6.)

5

Defendant does not dispute that in response to the ACLU investigation and ACLU’s use

6 of video conferencing inmates, TCSD reset the video conferencing system at the Jails, thereby

7 requiring all attorneys to establish new accounts in that system, and TCSD instituted a new policy

8 of requiring inmates to complete a form to confirm that the inmate desired a confidential visit

9 with the attorney or the attorney’s agent. (Id. at ¶ 5.) Defendant has not provided the court with a

10 copy of the form inmates are now required to sign in this regard.9 Plaintiffs’ attorney Kathleen

11 Guneratne attached as exhibits to her declaration a “Video Visiting Directive” dated May 29,

12 2020 and a letter “Re: Professional Visits” dated June 4, 2020 from defendant (Doc. No. 11-5 at ¶

13 10, Exs. E, F), which state that under the new legal visitation policy, access will not be allowed

14 until “the inmate has verified that [the attorney/investigator] [is] in fact their attorney of record

15 and they wish to visit.” (Id. at 26) (emphasis added). At the hearing on the pending Motion,

16 plaintiffs’ counsel confirmed that despite taking the steps outlined in defendant’s new directive,

17 they have not been able to meet confidentially with prospective clients, all of whom have

18 expressed a desire to confer with counsel and seek legal advice in connection with this action.

19 (Hr’g Tr. at 51.) Plaintiffs’ counsel also confirmed at the hearing that neither they nor their

20 investigator had “cold called” any inmates in the Jails. (Id.)

21

Undersheriff Sigley declares that “[a]lthough the policy references ‘attorney of record’ it

22 has not been interpreted in a limited sense, and [TCSD] is revising the policy and related forms to

23 reflect that inmates seeking representation are also permitted confidential video visits.” (Id. at

24 ¶ 6.) But, once again, defendant has not submitted any evidence of a written revised policy

25 reflecting the change they now claim to have made after this lawsuit was filed.

26 /////

27 9 The court notes that Lieutenant Robles states that a copy of the form is attached as an exhibit to
28 her declaration, but there is no such attachment. (See Doc. No. 15-6 at ¶ 5.)
17

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1

Lieutenant Robles, who is responsible for the video visitation process, explains in her

2 declaration that after the system was reset, she was on vacation for an extended period of time

3 and, as a result, “there were some difficulties and confusion in implementation,” and “enquiries

4 may have gone unanswered.” (Doc. No. 15-6 at ¶ 9.) In addition, Lieutenant Robles has declared

5 that there is no requirement that the prisoner already have an attorney/client relationship with the

6 attorney for a confidential visit to be scheduled. (Id. at ¶ 5.) Lieutenant Robles does say that

7 there was a period of time where setting up confidential video visits at BWDF “was difficult

8 because the two rooms available for such visits were also used by pro per inmates for preparation,

9 resulting in overwhelming demand,” but that “the situation was rectified . . . within 1–2 days.”

10 (Id. at ¶ 6.)

11

Lieutenant Robles also declares that prisoners can make unrecorded telephone calls to

12 attorneys if the attorneys have their phone number entered into the Jails’ system, which blocks the

13 recording of calls made to specified numbers entered in the system. (Id.) Though it is not clear

14 that inmates or their attorneys know about this option. As one inmate declared, “[the] calls I

15 make to Mr. Verner-Crist are recorded and deputies can listen into what I tell the ACLU. There

16 is no privacy. The Sheriff’s obstruction of my right to talk to legal representatives has made it

17 very difficult to report my concerns about conditions in the jails. I’d like to work with ACLU

18 staff on a civil rights case about the jail conditions, but the Sheriff has made it very difficult for

19 me to do so.” (Doc. No. 11-14 at ¶ 8.)

20

LEGAL STANDARD

21 A. Provisional Class Certification

22

District courts in this circuit can provisionally certify a class for the purposes of a

23 preliminary injunction. See Al Otro Lado v. Wolf, 952 F.3d 999, 1005 (9th Cir. 2020) (noting that

24 the Ninth Circuit has “approved provisional class certification for purposes of preliminary

25 injunction proceedings”) (citing Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1041

26 (9th Cir. 2012) (concluding that “the district court acted within its discretion when it ruled that

27 [plaintiff] met the commonality, typicality, and adequacy requirements of [Federal Rule of Civil

28 Procedure] 23(a) and did not abuse its discretion by granting provisional class certification.”). 18

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 19 of 49

1

Pursuant to Federal Rule of Civil Procedure 23, a party seeking class certification must

2 establish the following prerequisites:

3

(1) the class is so numerous that joinder of all members is

4

impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are

5

typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests

6

of the class.

7 Fed. R. Civ. P. 23(a). If these prerequisites—commonly referred to as numerosity, commonality,

8 typicality, and adequacy—are satisfied, then the party seeking class certification must also satisfy

9 one of the three subsections of Rule 23(b). Here, plaintiffs seek class certification under Rule

10 23(b)(2), which requires a showing that defendant “has acted or refused to act on grounds that

11 apply generally to the class, so that final injunctive relief or corresponding declaratory relief is

12 appropriate respecting the class as a whole.” (Doc. No. 10 at 9) (quoting Fed. R. Civ. P. 23(b)).

13

The party seeking class certification bears the burden of establishing conformity with

14 these requirements and must do so by producing facts that “affirmatively demonstrate” that

15 certification is warranted. Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Wal-Mart

16 Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). Only after it has conducted a “rigorous

17 analysis” of these facts and determined that they show “actual, not presumed, conformance” with

18 Rule 23(a) and (b), may a district court certify a class. Ellis v. Costco Wholesale Corp., 657 F.3d

19 970, 981 (9th Cir. 2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 161 (1982));

20 see also Comcast, 569 U.S. at 33–34 (extending the “rigorous analysis” requirement to Rule

21 23(b)); Patel v. Nike Retail Servs., Inc., 14-cv-4781-RS, 2016 WL 1241777, at *3 (N.D. Cal. Mar.

22 29, 2016) (“This ‘rigorous’ analysis applies both to Rule 23(a) and Rule 23(b).”). A court must

23 review the merits of a party’s substantive claim only if they overlap with issues touching on class

24 certification. Ellis, 657 F.3d at 981 (citing Dukes, 564 U.S. at 350–51); Amgen Inc. v. Conn. Ret.

25 Plans & Tr. Funds, 568 U.S. 455, 466 (2013) (“Rule 23 grants courts no license to engage in free-

26 ranging merits inquiries at the certification stage. Merits questions may be considered to the

27 extent—but only to the extent—that they are relevant to determining whether the Rule 23

28 prerequisites for class certification are satisfied.”). 19

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1

“The decision to grant or deny class certification is within the trial court’s discretion.”

2 Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010) (citing Yamamoto v.

3 Omiya, 564 F.2d 1319, 1325 (9th Cir. 1977)). If a court does decide to certify a class, it must

4 define the class claims and issues and appoint class counsel. Fed. R. Civ. P. 23(c)(1). Finally,

5 “[w]hen appropriate, a class may be divided into subclasses that are each treated as a class under

6 this rule.” Fed. R. Civ. P. 23(c)(5).

7 B. Temporary Restraining Order

8

The standard governing the issuing of a temporary restraining order is “substantially

9 identical” to the standard for issuing a preliminary injunction. See Stuhlbarg Intern. Sales Co. v.

10 John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). “The proper legal standard for

11 preliminary injunctive relief requires a party to demonstrate ‘that he is likely to succeed on the

12 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

13 balance of equities tips in his favor, and that an injunction is in the public interest.’” Stormans,

14 Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter v. Nat. Res. Def. Council,

15 Inc., 555 U.S. 7, 20 (2008)); see also Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1172 (9th

16 Cir. 2011) (“After Winter, ‘plaintiffs must establish that irreparable harm is likely, not just

17 possible, in order to obtain a preliminary injunction.’”) (quoting All. for Wild Rockies v. Cottrell,

18 632 F.3d 1127, 1131 (9th Cir. 2011)). The Ninth Circuit has also held that an “injunction is

19 appropriate when a plaintiff demonstrates . . . that serious questions going to the merits were

20 raised and the balance of hardships tips sharply in the plaintiff’s favor.” All. for Wild Rockies,

21 632 F.3d at 1134–35 (quoting Lands Council v. McNair, 537 F.3d 981, 97 (9th Cir. 2008) (en

22 banc)).10 The party seeking the injunction bears the burden of proving these elements. See Klein

23 v. City of San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009); see also Caribbean Marine Servs.

24 Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“A plaintiff must do more than merely allege

25 10 The Ninth Circuit has found that this “serious question” version of the circuit’s sliding scale 26 approach survives “when applied as part of the four-element Winter test.” All. for the Wild
Rockies, 632 F.3d at 1134. “That is, ‘serious questions going to the merits’ and a balance of 27 hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction,
so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the 28 injunction is in the public interest.” Id. at 1135.
20

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1 imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened

2 injury as a prerequisite to preliminary injunctive relief.”) Finally, an injunction is “an

3 extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled

4 to such relief.” Winter, 555 U.S. at 22.

5

ANALYSIS

6 A. Plaintiffs’ Application to Provisionally Certify the Proposed Class

7

Plaintiffs seek to provisionally certify a class defined as “all people who are now, or in the

8 future will be, incarcerated in Tulare County Jails” (the “Proposed Class”). (Doc. No. 10 at 4.)

9 Because plaintiffs do not currently seek certification of the subclasses alleged in their complaint,

10 the court will not consider certification of any putative subclasses in this order.

11

Recently, several district courts have provisionally certified classes of detained and

12 incarcerated individuals seeking preliminary injunctive relief related to their conditions of

13 confinement and detention during the COVID-19 pandemic. See, e.g., Roman v. Wolf, No. 20-cv-

14 00768-TJH-PVCx, 2020 WL 3869729, at *4 (C.D. Cal. Apr. 23, 2020) (provisionally certifying

15 class of people who are “currently detained in civil immigration detention at the Adelanto

16 Immigration and Customs Enforcement Processing Center”); Ahlman v. Barnes, 445 F. Supp. 3d

17 671, 694 (C.D. Cal. May 26, 2020) (provisionally certifying subclasses of pre-trial detainees and

18 post-conviction prisoners incarcerated at the Orange County Jail).

19

In his opposition to the pending Application defendant argues, with minimal citation to

20 authority, that the Proposed Class fails to meet the requirements of Rule 23, except numerosity.

21 (Doc. No. 16-1.)

22

For the reasons explained below, the court will grant plaintiffs’ Application and

23 provisionally certify the Proposed Class.

24

1. Numerosity

25

A proposed class must be “so numerous that joinder of all members is impracticable.”

26 Fed. R. Civ. P. 23(a)(1). “‘[I]mpracticability’ does not mean ‘impossibility,’ but only the

27 difficulty or inconvenience of joining all members of the class.” Rodriguez v. Penske Logistics,

28 LLC, No. 2:14-cv-02061-KJM-CKD, 2017 WL 4132430, at *5 (E.D. Cal. Sept. 19, 2017) 21

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 22 of 49

1 (quoting Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913 (9th Cir. 1964)). While

2 there is no strict number requirement for numerosity, courts have routinely held that classes

3 comprised of more than forty members will satisfy this prerequisite. Rannis v. Recchia, 380 Fed.

4 App’x 646, 651 (9th Cir. 2010) (“In general, courts find the numerosity requirement satisfied

5 when a class includes at least 40 members.”)11; Gonzalez v. NCI Grp., Inc., No. 1:18-cv-00948-

6 AWI-SKO, 2020 WL 4547303, at *5 (E.D. Cal. Aug. 6, 2020) (“Generally, forty or more

7 members will satisfy the numerosity requirement.”); Ikonen v. Hartz Mt. Corp., 122 F.R.D. 258,

8 262 (S.D. Cal. 1988) (“As a general rule, classes of 20 are too small, classes of 20–40 may or

9 may not be big enough depending on the circumstances of each case, and classes of 40 or more

10 are numerous enough.”).

11

Here, plaintiffs have shown that the Proposed Class is sufficiently numerous. Plaintiffs’

12 counsel McDermott declared that according to data reported by defendant to BSCC, as of August

13 1, 2020, there were approximately 1,086 people incarcerated in the Jails. (Doc. Nos. 10 at 4; 11-1

14 at ¶ 11, Ex. F.) Defendant does not contest that the numerosity requirement is satisfied here.

15 (Doc. No. 16-1 at 15.)

16

2. Commonality

17

Rule 23 requires that there be “questions of law or fact common to the class.” Fed. R.

18 Civ. P. 23(a)(2). To satisfy Rule 23(a)’s commonality requirement, a class claim “must depend

19 upon a common contention . . . of such a nature that it is capable of classwide resolution—which

20 means that determination of its truth or falsity will resolve an issue that is central to the validity of

21 each one of the claims in one stroke.” Dukes, 564 U.S. at 350; see also Ellis, 657 F.3d at 983 (“If

22 there is no evidence that the entire class was subject to the same [] practice, there is no question

23 common to the class.”). Commonality turns on whether class treatment will “generate

24 common answers apt to drive the resolution of the litigation.” Wright v. Renzenberger, Inc., 656

25 F. App’x 835, 837 (9th Cir. 2016)12 (quoting Ellis, 657 F.3d at 981) (noting that “[w]hether

26 11 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 27 36-3(b).

28 12 See footnote 11, supra. 22

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1 Renzenberger’s policies complied with the law was a common question, whatever its merits”);

2 see also Stockwell v. City & County of San Francisco, 749 F.3d 1107, 1113 (9th Cir. 2014)

3 (finding the district court erred in denying class certification after evaluating the merits “rather

4 than focusing on whether the questions presented, whether meritorious or not, were common to

5 the members of the putative class”).13

6

Here, plaintiffs argue that commonality is satisfied because all members of the Proposed

7 Class “are subject to the same practices and lack of policies” related to social distancing, testing,

8 and legal visits. (Doc. No. 10 at 5–6.) Plaintiffs assert that there are several common questions

9 of fact and law, including whether: (i) defendant continues to pack class members into crowded

10 housing units despite available living space elsewhere in the Jails; (ii) defendant has implemented

11 effective testing protocols to prevent the spread of COVID-19 in the Jails; (iii) defendant has

12 interfered with class members’ confidential communications with counsel and access to the

13 courts, including by implementing the restrictive legal visitation policy and by permitting

14 intimidation, threats, and retaliation against class members who speak with counsel; (iv)

15 defendant’s failure to reduce overcrowding and to provide testing exposes class members to a

16 heightened risk of serious illness and death in violation of the Eighth and Fourteenth

17 Amendments; (v) defendant violated class members’ First, Sixth, and Fourteenth Amendments by

18 interfering with their access to counsel and the courts; and (vi) defendant’s use of intimidation,

19 threats, and retaliation violates the Bane Act. (Id. at 6–7.) Plaintiffs contend that these common

20 issues are amenable to class treatment. (Id. at 7.)

21

In opposition, defendant argues that “[t]he proposed class members’ differing risk profiles

22 preclude a single, indivisible remedy, because not all risk profiles necessitate the same

23 precautions.” (Doc. No. 16-1 at 19.) In particular, defendant argues that “[t]he imperative of

24 individualized determinations, makes this case inappropriate for class treatment.” (Id. at 18.) But

25
26 13 The commonality requirement of Rule 23(a) is less demanding than the requirement for certification under Rule 23(b)(3) that “questions of law or fact common to class members
27 predominate over any questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3) (emphasis added); see also Stockwell, 749 F.3d at 1113 (“Rule 23(b)(3) imposes a ‘far more
28 demanding’ standard than 23(a)(2).”).
23

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1 in advancing this argument defendant appears to be conflating Rule 23(a)’s commonality

2 requirement with the predominance requirement of Rule 23(b)(3), which plaintiffs need not

3 satisfy here. Moreover, defendant states that other courts have found the commonality

4 requirement not met by proposed classes of inmates in the COVID-19 context but cites only to

5 one district court’s decision in Money v. Pritzker, No. 20-cv-2093, 2020 WL 1820660, at *14

6 (N.D. Ill. Apr. 10, 2020). As plaintiffs note in their reply, the analysis in Money is out of step

7 with other courts’ decisions regarding certification of COVID-19 related classes. (Doc. No. 17 at

8 6 n.3.) Furthermore, defendant does not distinguish any of the cases plaintiffs cited in their

9 Application, which support their assertion that indeed several district courts, including those in

10 this circuit, have provisionally certified classes similar to the Proposed Class here after finding

11 that the requirements of Rule 23(a) and Rule 23(b)(2) had been satisfied. This court similarly

12 concludes that plaintiffs here have satisfied the commonality requirement.

13

3. Typicality

14

Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical

15 of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The purpose of the typicality

16 requirement is to assure that the interest of the named representative aligns with the interests of

17 the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). This “typicality

18 requirement is ‘permissive’ and requires only that the representative’s claims are “reasonably co-

19 extensive with those of absent class members; they need not be substantially identical.”

20 Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th Cir. 2010) (citing Hanlon v. Chrysler Corp., 150

21 F.3d 1011, 1020 (9th Cir. 1998), overruled on other grounds by Dukes, 564 U.S. 338.). This

22 requirement “is satisfied when each class member’s claim arises from the same course of events,

23 and each class member makes similar legal arguments to prove the defendant’s liability.”

24 Rodriguez, 591 F.3d 1105 at 1124 (internal quotation marks and citations omitted).

25

Here, plaintiffs contend that the typicality requirement is satisfied because they are

26 currently incarcerated in the Jails and all of their claims are brought on behalf of themselves and

27 the Proposed Class. (Doc. No. 10 at 7–8.) In addition, plaintiffs contend that their claims are

28 typical of the class claims, which all arise from the same alleged failures of defendant to 24

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1 adequately respond to COVID-19 and the same unconstitutionally restrictive legal visitation

2 policy. (Id.) Despite accurately stating the typicality standard, defendant argues in a confusing

3 manner that typicality is not satisfied here because “[t]he vague and unspecified forms of relief

4 requested demonstrate Petitioners’ [sic] inability to establish typicality.” (Doc. No. 16-1 at 21.)

5 Whatever elusive argument that might be, it does not speak to Rule 23(a)(3)’s typicality

6 requirement. It is telling that defendant does not argue that plaintiffs’ interests do not align with

7 those of the class, or that their claims are not reasonably coextensive with those of the class. The

8 court therefore finds that plaintiffs have satisfied the typicality requirement.

9

4. Adequacy of Representation

10

Rule 23(a)(4) requires plaintiffs to show that they “will fairly and adequately protect the

11 interests of the class.” Fed. R. Civ. P. 23(a)(4). Generally, the adequacy inquiry seeks to ensure

12 that class representatives are “part of the class and possess the same interest and suffer the same

13 injury as the class members.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625–26 (1997)

14 (internal quotations omitted). “Requiring the claims of the class representatives to be adequately

15 representative of the class as a whole ensures that the interests of absent class members are

16 adequately protected.” Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998) (citing Hansberry v.

17 Lee, 311 U.S. 32, 42 (1940)).

18

Whether the adequacy requirement is satisfied depends on “the qualifications of counsel

19 for the representatives, an absence of antagonism, a sharing of interests between representatives

20 and absentees, and the unlikelihood that the suit is collusive.” Crawford v. Honig, 37 F.3d 485,

21 487 (9th Cir. 1994). “To determine whether named plaintiffs will adequately represent a class,

22 courts must resolve two questions: ‘(1) do the named plaintiffs and their counsel have any

23 conflicts of interest with other class members and (2) will the named plaintiffs and their counsel

24 prosecute the action vigorously on behalf of the class?’” Ellis, 657 F.3d at 985 (quoting Hanlon,

25 150 F.3d at 1020). “An absence of material conflicts of interest between the named plaintiffs and

26 their counsel with other class members is central to adequacy and, in turn, to due process for

27 absent members of the class.” Rodriguez v. W. Publ’g Co., 563 F.3d 948, 959 (9th Cir. 2009)

28 (citing Hanlon, 150 F.3d at 1020). 25

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1

Here, plaintiffs assert that the adequacy requirement is satisfied because “there is no

2 conflict between the named plaintiffs and other members of the Proposed Class” and they will

3 “vigorously prosecute this action” to “ensur[e] that all people facing the current dangerous

4 conditions in Tulare County Jails benefit from this case.” (Doc. No. 10 at 8.) In addition,

5 plaintiffs contend that their counsel, the ACLU and Munger, Tolles & Olson, have extensive

6 experience litigating class action lawsuits, including representing incarcerated people in general

7 and in cases related to conditions of confinement during the COVID-19 pandemic. (Id.)

8 Defendant does not present any arguments regarding the adequacy requirement, despite his

9 general position that only the numerosity requirement of Rule 23(a) had been met by plaintiffs in

10 this case. The court finds that plaintiffs have satisfied the adequacy requirement.

11

Having concluded that all four requirements of Rule 23(a) have been satisfied, the court

12 will proceed to assess whether Rule 23(b)(2) has been satisfied as well.

13

5. Rule 23(b)(2) Requirements

14

Rule 23(b)(2) requires plaintiffs to show that defendant “has acted or refused to act on

15 grounds that apply generally to the class, so that final injunctive relief or corresponding

16 declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). For

17 class certification under Rule 23(b)(2), plaintiffs must primarily seek declaratory or injunctive

18 relief. Rodriguez, 591 F.3d at 1125. Courts are not required “to examine the viability or bases of

19 class members’ claims for declaratory and injunctive relief, but only to look at whether class

20 members seek uniform relief from a practice applicable to all of them.” Id. (noting that Rule

21 23(b)(2) requirements are met when “class members complain of a pattern or practice that is

22 generally applicable to the class as a whole”) (citing Walters, 145 F.3d at 1047).

23

Here, plaintiffs argue that the requirements of Rule 23(b)(2) are met because they seek

24 uniform injunctive relief and defendant’s actions and omissions in failing to adequately respond

25 to COVID-19 allegedly violate the rights of all putative class members and are generally

26 applicable to the class. (Doc. No. 10 at 9.) Defendant does not meaningfully oppose plaintiffs’

27 argument in this regard, beyond merely asserting without any elaboration that “[t]he key to the

28 ///// 26

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1 (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted.” (Doc.

2 No. 16-1 at 19.)

3

The court finds that plaintiffs have clearly satisfied the requirements of Rule 23(b)(2) and

4 will provisionally certified the Proposed Class. See Parsons v. Ryan, 754 F.3d 657, 688–89 (9th

5 Cir. 2014) (affirming certification under Rule 23(b)(2) where defendants had acted on grounds

6 that apply generally to the proposed class and subclass of prisoners who were “allegedly exposed

7 to a substantial risk of serious harm by a specified set of centralized [department of corrections]

8 policies and practices of uniform and statewide application” that placed every prisoner in peril).

9 The court will appoint plaintiffs Criswell, Johnson, Ibarra, and Camposeco as representatives of

10 the class. Pursuant to Rule 23(g), the court will also appoint the ACLU Foundation of Northern

11 California and the law firm Munger, Tolles & Olson as class counsel.

12 B. Plaintiffs’ Motion for a Temporary Restraining Order

13

Below, the court will address whether plaintiffs have satisfied each of the requirements for

14 the issuance of the temporary restraining order which they seek.

15

1. Likelihood of Success on the Merits

16

Plaintiffs contend that they are likely to succeed on the merits of all five claims asserted in

17 their complaint. (Doc. No. 11 at 21–29.) Defendant argues that plaintiffs are not likely to

18 succeed on the merits because: (1) plaintiffs failed to exhaust their administrative remedies, and

19 (2) plaintiffs cannot show deliberate indifference because defendant has implemented “reasonable

20 available measures.” (Doc. No. 15-1 at 18–25.) Defendant also emphasizes that “the evidence

21 presented [by plaintiffs] is largely outdated, and the requested measures are already in place as

22 the TCSD’s policies and processes have evolved in response to changing conditions in the

23 community and the facilities.” (Id. at 6.)

24

a. Exhaustion of Administrative Remedies

25

The Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e, provides that

26 “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or

27 any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until

28 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “[T]hat 27

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1 language is ‘mandatory’: An inmate ‘shall’ bring ‘no action’ (or said more conversationally, may

2 not bring any action) absent exhaustion of available administrative remedies.” Ross v. Blake, 136

3 S. Ct. 1850, 1856 (2016) (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)); Jones v. Bock, 549

4 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA.”).

5

“Courts may not engraft an unwritten ‘special circumstances’ exception onto the PLRA’s

6 exhaustion requirement. The only limit to § 1997e(a)’s mandate is the one baked into its text: An

7 inmate need exhaust only such administrative remedies as are ‘available.’” Ross, 136 S. Ct. at

8 1862. In Ross, the Supreme Court noted that there are “three kinds of circumstances in which an

9 administrative remedy, although officially on the books, is not capable of use to obtain relief.”

10 Id. at 1859. Remedies are unavailable when: (1) the administrative procedure “operates as a

11 simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved

12 inmates”; (2) the “administrative scheme might be so opaque that it becomes, practically

13 speaking, incapable of use”; or (3) “prison administrators thwart inmates from taking advantage

14 of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859–60.

15

With regards to the third circumstance, the Supreme Court cited several circuit court

16 decisions addressing when administrative remedies were effectively rendered unavailable. Id. at

17 1890, n.3 (citing Davis v. Hernandez, 798 F.3d 290, 295 (5th Cir. 2015) (“Grievance procedures

18 are unavailable . . . if the correctional facility’s staff misled the inmate as to the existence or rules

19 of the grievance process so as to cause the inmate to fail to exhaust such process” (emphasis

20 deleted)); Schultz v. Pugh, 728 F.3d 619, 620 (7th Cir. 2013) (“A remedy is not available,

21 therefore, to a prisoner prevented by threats or other intimidation by prison personnel from

22 seeking an administrative remedy”); Pavey v. Conley, 663 F.3d 899, 906 (7th Cir. 2011) (“[I]f

23 prison officials misled [a prisoner] into thinking that . . . he had done all he needed to initiate the

24 grievance process,” then “[a]n administrative remedy is not ‘available’”); Tuckel v. Grover, 660

25 F.3d 1249, 1252–1253 (10th Cir. 2011) (“[W]hen a prison official inhibits an inmate from

26 utilizing an administrative process through threats or intimidation, that process can no longer be

27 said to be ‘available’”); Goebert v. Lee County, 510 F.3d 1312, 1323 (11th Cir. 2007) (If a prison

28 “play[s] hide-and-seek with administrative remedies,” then they are not “available.”)). 28

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1

The Ninth Circuit has also “recognized that the PLRA does not require exhaustion when

2 circumstances render administrative remedies ‘effectively unavailable.’” Andres v. Marshall, 867

3 F.3d 1076, 1078 (9th Cir. 2017) (quoting Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010));

4 Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010) (holding that there is an “exception to the

5 PLRA’s exhaustion requirement where a prison official renders administrative remedies

6 effectively unavailable by improperly screening a prisoner’s grievances.”).

7

In addition, the PLRA exhaustion requirement is an affirmative defense, and defendants

8 bear the burden of raising and proving the absence of exhaustion. See Jones, 549 U.S. at 216

9 (“[I]nmates are not required to specially plead or demonstrate exhaustion in their complaints.”).

10 “[A] defendant must first prove that there was an available administrative remedy and that the

11 prisoner did not exhaust that available remedy.” Williams v. Paramo, 775 F.3d 1182, 1191 (9th

12 Cir. 2015). If defendant does so, then the burden shifts to the plaintiff, “who must show that there

13 is something particular in his case that made the existing and generally available administrative

14 remedies effectively unavailable to him . . ..” Id.

15

Here, defendant argues that the evidence shows that plaintiffs failed to exhaust their

16 administrative remedies by submitting grievances as required by the grievance policy in the Jails.

17 (Doc. No. 15-1 at 19–20.) Though defendant has not specified which of plaintiffs’ claims he

18 contends have not been exhausted, his arguments pertain only to a purported failure by plaintiffs

19 to exhaust their claims that he actively interfered with their right to access the courts and counsel.

20

Defendant contends that the grievance log, which reflects 450 inmate grievances

21 submitted in 2020 on various issues, shows that grievance forms can in fact be obtained and

22 submitted. (Doc. No. 15-1 at 19–20.) The grievance log also shows that the Jails processed the

23 grievances submitted by the inmates who provided declarations in support of plaintiffs’ Motion.

24 (Id.) According to defendant, this evidence shows that grievance forms were generally available,

25 and thus plaintiffs and putative class members were not denied access to the Jails’ grievance

26 process. (Id.) In addition, defendant asserts that “[t]here is no reference in any of the inmate

27 declarations of an attempt to submit a grievance, or even requesting a grievance form, in

28 connection with access to counsel or the confidential visit policy.” (Doc. No. 15-1 at 20.) 29

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1 Similarly, with regards to the declarants who described incidents of retaliation, none of those

2 declarations “establish any grievance, or attempt to grieve, perceived retaliation.” (Id.) For

3 example, despite the declarations of inmates Alford, Escobar, and Ibarra in which they aver that

4 they were questioned about their visits with the ACLU investigator, none of them submitted a

5 grievance about those incidents. (Id.)

6

In reply, plaintiffs argue that because of defendant’s interference and the threats and

7 intimidation by TCSD deputies, administrative remedies were effectively rendered unavailable to

8 them. (Doc. No. 18 at 8–9.) In particular, plaintiffs urge the court to conclude that the

9 administrative exhaustion requirement does not preclude their claims here because the inmates’

10 requests for grievance forms were denied. (Id.) Although Lieutenant Jones declares that inmates

11 are not required to provide a reason in order to receive a grievance form, and that “[d]eputies are

12 not to ‘screen’ grievances before providing the form,” that prohibition on screening by deputies is

13 not stated in the TCSD’s grievance policy. (Doc. No. 15-3 at ¶ 5, Ex. A.) The policy does state,

14 however, that “[g]rievances will not be accepted if they are challenging the rules and policies

15 themselves.” (Id.) This provision could fairly be interpreted as authorizing a deputy to refuse to

16 “accept” a grievance form and/or refuse to provide an inmate with a grievance form where the

17 intended grievance stated by the inmate could be construed as “challenging [the Jails’] rules and

18 policies.” Indeed, several inmates have submitted declarations attesting to their unsuccessful

19 attempts to pursue their administrative remedies with respect to the claims presented in this

20 action. (See Doc. Nos. 11-22 at ¶¶ 5–6; 11-16 at ¶¶ 8–10; 11-9 at ¶¶ 8, 9, 16.) For example,

21 inmate Alford declares that he attempted several times to submit an inmate grievance about the

22 retaliation he faced after speaking with ACLU attorneys (he was moved to a high security-

23 classification), but deputies refused to give him a grievance form after he explained why he

24 wanted it. (Doc. No. 11-9 at ¶ 8.)

25

Defendant presents no evidence to refute the version of events that these inmates have

26 described in considerable detail in their sworn declarations which are before the court.

27

On this record, the court concludes that the circumstances here—namely the deputies’

28 refusal to consistently provide grievance forms without screening the grievances and the deputies’ 30

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1 intimidation of inmates who spoke with the ACLU—have likely rendered administrative

2 remedies “effectively unavailable.” Accordingly, to the extent defendant asserts the affirmative

3 defense of failure to exhaust administrative remedies, plaintiffs have demonstrated that they are

4 likely to succeed in showing that those remedies were effectively unavailable to them.

5

b. Deliberate Indifference to Serious Medical Needs in Violation of the

6

Fourteenth Amendment (Claim 1)

7

Because plaintiffs challenge the conditions of their confinement in the Jails for pre-trial

8 detainees, their first deliberate indifference claim “arises under the Fourteenth Amendment’s Due

9 Process Clause, rather than under the Eighth Amendment’s Cruel and Unusual Punishment

10 Clause.” See Gordon v. County of Orange, 888 F.3d 1118, 1124 (9th Cir. 2018). To succeed on

11 their Fourteenth Amendment claim, plaintiffs will have to prove objective deliberate indifference.

12 Gordon, 888 F.3d at 1124–25 (holding that “claims or violations of the right to adequate medical

13 care brought by pretrial detainees against individual defendants under the Fourteenth Amendment

14 must be evaluated under an objective deliberate indifference standard”).

15

To satisfy this objective deliberate indifference standard, plaintiff must prove that:

16

(i) the defendant made an intentional decision with respect to the

conditions under which the plaintiff was confined; (ii) those

17

conditions put the plaintiff at substantial risk of suffering serious

harm; (iii) the defendant did not take reasonable available measures

18

to abate that risk, even though a reasonable official in the

circumstances would have appreciated the high degree of risk

19

involved—making the consequences of the defendant’s conduct

obvious; and (iv) by not taking such measures, the defendant caused

20

the plaintiff's injuries.

21 Id. at 1125. As to the third element, the plaintiff must “prove more than negligence but less than

22 subjective intent—something akin to reckless disregard.” Id.

23

Plaintiffs contend that they are likely to succeed on the merits of their Fourteenth

24 Amendment deliberate indifference claim because defendant has made conscious decisions not to

25 implement responsive policies to address COVID-19 despite his awareness of the ongoing risks

26 and threats posed to them by COVID-19. (Doc. No. 11 at 22–27.) Plaintiffs assert that they are

27 likely to prove defendant knew of the risks of COVID-19 because those risks are obvious to local

28 officials in light of Governor Newsom’s declaration of a state of emergency and in particular, the 31

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1 July 1, 2020 letter from the presiding judge of the Tulare County Superior Court requesting that

2 defendant immediately implement testing of all inmates in the county jail facilities. (Id. at 22–

3 23.) In addition, plaintiffs argue that defendant has shown a reckless disregard for the safety of

4 the incarcerated people in the Jails by failing to take reasonable available measures with regards

5 to testing and social distancing as recommended by the CDC. (Id. at 24.) As evidence of

6 defendant’s objective deliberate indifference, plaintiffs emphasize defendant’s failure to

7 propagate a clear written policy to implement precautions and his intentional decision to transfer

8 people to more crowded settings without any testing protocols in place at the Jails. (Id.)

9

Plaintiffs do not contend that they have a constitutional right to be tested for COVID-19.

10 (Hr’g Tr. at 15–16.) Rather, plaintiffs assert that “[i]t is well-established that exposing non-

11 infected incarcerated people to contagious individuals in itself constitutes deliberate

12 indifference.” (Doc. No. 11 at 26.)14 Therefore, plaintiffs contend that defendant’s failure to

13 adequately protect them and class members from exposure to COVID-19 constitutes deliberate

14 indifference. (Doc. No. 11 at 24.) Essentially, plaintiffs assert that the Constitution requires

15 defendant to take reasonable available measures to protect the incarcerated people in his care

16 from the risk of contracting COVID-19, and because of the nature of this highly infectious,

17 potentially-deadly disease and its mechanism for transmission, universal testing and social

18
19 14 See Duvall v. Dallas Cty., Tex., 631 F.3d 203, 208–209 (5th Cir. 2011) (affirming a jury’s finding of deliberate indifference to a MRSA outbreak where jury heard evidence “that the
20 Sheriff and other jail officials had long known of the extensive MRSA problem yet had continued to house inmates in the face of the inadequately controlled staph contamination,” and “that it was
21 feasible to control the outbreak through tracking, isolation, and improved hygiene practices, but 22 that the County was not willing to take the necessary steps or spend the money to do so”); Lareau
v. Manson, 651 F.2d 96, 109, 111 (2d Cir. 1981) (affirming a district court’s order requiring 23 defendant correctional center to institute “screening procedures to identify and isolate new
inmates who may have a ‘communicable disease,’” and directing that upon remand, defendants be 24 ordered to not introduce any new inmate into general population without first being examined,
including “such tests as are necessary in the opinion of the physician to identify and isolate those 25 who have communicable diseases”); Morales Feliciano v. Rossello Gonzalez, 13 F. Supp. 2d 151, 26 208–09 (D.P.R. 1998) (finding deliberate indifference where the defendant correctional officers
“neglected to fully screen incoming inmates for infectious diseases such as tuberculosis” and “the 27 inability of [defendants’] health care personnel to properly isolate cases of active tuberculosis
inflicts cruel and unusual punishment on particular individuals at present, endangers their health 28 in the future and threatens the health of all the members of the class”).
32

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1 distancing are not just reasonable available measures, they are critically important to abate the

2 risk of contracting COVID-19 in the Jails. (Hr’g Tr. at 32–34.) According to plaintiffs, without

3 testing, there is no way to know which people are infected and thus no way to isolate infected

4 individuals from the rest of the incarcerated population. Similarly, social distancing is recognized

5 by the CDC as the “cornerstone” of prevention efforts because of the manner in which this

6 disease spreads—via airborne droplets released by infected individuals in close proximity. (See

7 id. at 34; Doc. No. 11-2 at ¶ 7.)15 Plaintiffs emphasize that both common sense and science

8 dictates that if you do not know who is infected and you are not able to distance from others,

9 COVID-19—once present—will spread. Thus, plaintiffs argue, they are likely to succeed in

10 showing that defendant’s failure to implement an effective testing plan and social distancing

11 policy constitutes deliberate indifference to the known and obvious risks of the spread of COVID-

12 19 in the Jails. (Doc. No. 11 at 24.)

13

In opposition, defendant essentially argues that because he has consulted local public

14 health officials and CDC guidance in deciding to now take some precautionary measures (such as

15 providing masks and soap to inmates), those actions he has taken contradict a finding of

16 deliberate indifference. (Doc. No. 15-1 at 22.) Defendant also generally and repeatedly takes the

17 position that the court should defer to his judgment as sheriff. (Id.)

18

The court is not persuaded by defendant’s argument, in large part because he has

19 completely failed to address in response to the pending motion how social distancing and testing

20 are not reasonable and available here, especially in light of the CDC Guidelines recommending

21 that testing and social distancing measures be taken in correctional facilities to abate the risks of

22 COVID-19. Thus, the court finds that plaintiffs have shown a likelihood of success on the merits

23

24 15 The CDC Guidelines, as of August 26, 2020, state: “Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing
25 transmission of respiratory diseases such as COVID-19. People who have been infected with 26 SARS-CoV-2 but do not have symptoms can still spread the infection, making social distancing
even more important.” See Interim Guidance on Management of Coronavirus Disease 2019 27 (COVID-19) in Correctional and Detention Facilities, available at https://www.cdc.gov/coronavir
us/2019-ncov/community/correction-detention/guidance-correctional-detention.html (last updated 28 July 22, 2020).
33

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1 of their deliberate indifference claim. See Cameron v. Bouchard, No. 20-cv-10949, 2020 WL

2 1929876, at *2 (E.D. Mich. Apr. 17, 2020), modified on reconsideration, No. 20-cv-10949, 2020

3 WL 1952836 (E.D. Mich. Apr. 23, 2020) (“The Court finds that Plaintiffs are likely to succeed on

4 the merits of their claim alleging that jail conditions violate their Eighth and Fourteenth

5 Amendment rights. Plaintiffs’ allegations reflect that Oakland County has not imposed even the

6 most basic safety measures recommended by health experts, the Centers for Disease Control and

7 Prevention, and Michigan’s Governor to reduce the spread of COVID-19 in detention facilities.

8 It cannot be disputed that COVID-19 poses a serious health risk to Plaintiffs and the putative

9 class.”).

10

c. Deliberate Indifference to Serious Medical Needs in Violation of the Eighth

11

Amendment (Claim 2)

12

Because plaintiffs challenge the conditions of confinement in the Jails for convicted

13 prisoners, their second deliberate indifference claim arises under the Eighth Amendment. See

14 Estelle v. Gamble, 429 U.S. 97, 104 (1976) (holding that prison officials’ “deliberate indifference

15 to serious medical needs of prisoners” violates the Cruel and Unusual Punishment Clause of the

16 Eighth Amendment); see also Helling v. McKinney, 509 U.S. 25, 29–30 (1993) (“[T]he Eighth

17 Amendment applies to conditions of confinement that are not formally imposed as a sentence for

18 a crime.”). The Eighth Amendment “requires that inmates be furnished with the basic human

19 needs, one of which is ‘reasonable safety,’” and “hold[ing] convicted criminals in unsafe

20 conditions” constitutes cruel and unusual punishment. Id. at 33 (upholding a prisoner’s Eighth

21 Amendment claim that he faced possible future harm from exposure to environmental tobacco

22 smoke).

23

Unlike deliberate indifference claims under the Fourteenth Amendment, Eighth

24 Amendment deliberate indifference claims require a showing of both objective and subjective

25 indifference. See Helling, 509 U.S. at 35–36 (affirming remand to district court to provide

26 plaintiff with an opportunity to satisfy “both the subjective and objective elements necessary to

27 prove an Eighth Amendment violation”). As to the objective component, courts “assess whether

28 society considers the risk that the prisoner complains of to be so grave that it violates 34

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1 contemporary standards of decency to expose anyone unwillingly to such a risk. In other words,

2 the prisoner must show that the risk of which he complains is not one that today’s society chooses

3 to tolerate.” Id. at 36. As to the subjective component, the prisoner must show that a prison

4 official has a “sufficiently culpable state of mind,” which is one of deliberate indifference to the

5 prisoner’s health or safety. Farmer v. Brennan, 511 U.S. 825, 847 (1994). “[A] prison official

6 cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of

7 confinement unless the official knows of and disregards an excessive risk to inmate health or

8 safety; the official must both be aware of facts from which the inference could be drawn that a

9 substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.

10

Where a prisoner asserting a deliberate indifference claim seeks an injunction, “[i]f the

11 court finds the Eighth Amendment’s subjective and objective requirements satisfied, it may

12 grant appropriate injunctive relief. Id. at 846–47. In Farmer, the Supreme Court noted that “a

13 district court should approach issuance of injunctive orders with the usual caution, and may, for

14 example, exercise its discretion if appropriate by giving prison officials time to rectify the

15 situation before issuing an injunction. Id. Though in Helling, the Supreme Court clarified that

16

[i]t would be odd to deny an injunction to inmates who plainly

proved an unsafe, life-threatening condition in their prison on the

17

ground that nothing yet had happened to them. The Courts of

Appeals have plainly recognized that a remedy for unsafe conditions

18

need not await a tragic event. . . . We thus reject petitioners’ central

thesis that only deliberate indifference to current serious health

19

problems of inmates is actionable under the Eighth Amendment.

20 509 U.S. at 33–34.

21

Here, plaintiffs contend that they are likely to succeed on the merits of their Eighth

22 Amendment deliberate indifference claim for the same reasons described above with respect to

23 their Fourteenth Amendment claim. The court will not repeat those arguments here. As to the

24 subjective component, plaintiffs contend that defendant’s culpable state of mind is evidenced by

25 his refusal to implement an effective testing plan, which “all but guarantees that incarcerated

26 people will continue to be exposed to a potentially-deadly disease, without knowledge or

27 recourse.” (Doc. No. 11 at 26.) At the hearing on the pending Motion, plaintiffs’ counsel also

28 argued that defendant’s culpable state of mind is shown by: (1) his refusal to conduct testing on 35

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1 any inmate outside of the two units that had identified outbreaks of the virus despite the fact that

2 the testing of those two units yielded alarmingly high positivity rates; and (2) his intentional

3 decision to transfer inmates from the Mail Jail to the other two active facilities without first

4 conducting any testing of those inmates to reduce the risk of spreading the virus. (Hr’g Tr. at 3–

5 5.)

6

Defendant counters with the same unpersuasive arguments that the court rejected above—

7 that he has consulted local public health officials and followed CDC guidance in taking some

8 precautionary measures and that the court should simply defer to his judgment as to the adequacy

9 of those measures. The court further notes that to the extent defendant is relying on TCSD’s

10 “current” policies, the court is mindful of the timing of the adoption of those policies, shortly

11 after the filing of this lawsuit. For example, although not challenged in plaintiffs’ pending

12 Motion, it is undisputed that defendant actually prohibited the use of masks by inmates and

13 limited their supplies of soap for several months after the pandemic began, despite issuance of

14 CDC guidance to the contrary. Indeed, TCSD did not implement a policy allowing and providing

15 masks and more soap to inmates until the day after plaintiffs filed their complaint in this action.

16 Moreover, despite the fact that at least over five months have passed since the pandemic began,

17 and nearly a month has passed since the supposed implementation of TCSD’s masking policy,

18 defendant has still not memorialized that policy (or any others in response to the virus) in writing.

19 In the court’s view, this record does not support defendant’s argument that because he is currently

20 taking some precautions, he necessarily lacked the culpable state a mind sufficient for a finding of

21 subjective deliberate indifference.

22

Accordingly, the court concludes that plaintiffs are likely to succeed on their deliberate

23 indifference claim under the Eighth Amendment as well.

24 /////

25 /////

26 /////

27 /////

28 ///// 36

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1

d. Active Interference with Right to Petition The Government and Access

2

Courts in Violation of the First and Fourteenth Amendments (Claim 3)

3

Prisoners have a constitutional right of access to the courts.16 Lewis v. Casey, 518 U.S.

4 343, 350 (1996) (“The right that Bounds acknowledged was the (already well-established) right of

5 access to the courts.”); Bounds v. Smith, 430 U.S. 817, 821 (1977), limited in part on other

6 grounds by Lewis, 518 U.S. at 354 (“It is now established beyond doubt that prisoners have a

7 constitutional right of access to the courts.”); Smith v. Ogbuehi, 38 Cal. App. 5th 453, 465 (2019),

8 reh’g denied (Aug. 28, 2019) (“Access to the courts is ‘a right guaranteed to all persons by the

9 federal and state Constitutions.’”) (quoting Jersey v. John Muir Med. Ctr., 97 Cal. App. 4th 814,

10 821 (2002)). In addition, California state prisoners specifically have a statutory right under the

11 California Penal Code “[t]o initiate civil actions” as plaintiffs. Cal. Penal Code § 2601(d). The

12 California Courts of Appeal have interpreted that statute “to include within its scope the right to

13 be afforded meaningful access to the courts to prosecute those civil actions.” Apollo v. Gyaami,

14 167 Cal. App. 4th 1468, 1483 (2008).

15

“A prisoner’s right to meaningful access to the courts, along with his broader right to

16 petition the government for a redress of his grievances under the First Amendment, precludes

17 prison authorities from penalizing a prisoner for exercising those rights.” Bradley v. Hall, 64

18 F.3d 1276, 1279 (9th Cir. 1995) overruled on other grounds by Shaw v. Murphy, 532 U.S. 223,

19 230 n.2 (2001). “Prisoners have a right under the First and Fourteenth Amendments to litigate

20 claims challenging their sentences or the conditions of their confinement to conclusion without

21 active interference by prison officials.” Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011),

22 overruled on other grounds by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015). The

23 Ninth Circuit has specifically recognized that the right to access the courts includes contact

24 visitation with counsel. Ching v. Lewis, 895 F.2d 608, 610 (9th Cir. 1990) (holding that the

25 16 The Supreme Court has noted that the constitutional basis for the right of access to the courts 26 is somewhat unsettled, as shown by its decisions grounding the right in various provisions of the
U.S. Constitution, including: the Article IV Privileges and Immunities Clause, the First 27 Amendment Petition Clause, the Fifth Amendment Due Process Clause, and the Fourteenth
Amendment Due Process and Equal Protection Clauses. Christopher v. Harbury, 536 U.S. 403, 28 415 n.12 (2002) (citing cases).
37

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1 prison’s “apparently arbitrary policy of denying a prisoner contact visits with his attorney

2 prohibits effective attorney-client communication and unnecessarily abridges the prisoner’s right

3 to meaningful access to the courts”).

4

“Any infringement on prisoners’ constitutional rights must be reasonably related to

5 legitimate penological interests.” Casey v. Lewis, 4 F.3d 1516, 1520 (9th Cir. 1993) (citing

6 Turner v. Safley, 482 U.S. 78, 89 (1987).

7

Here, plaintiffs argue that defendant has actively interfered with their right to access to the

8 courts in two ways. First, plaintiffs contend that defendant’s arbitrarily restrictive legal visitation

9 policy was implemented with the intent to frustrate plaintiffs’ efforts to meet confidentially with

10 counsel regarding their conditions of confinement in the Jails. (Doc. No. 11 at 28.) Second,

11 plaintiffs point to their evidence of multiple incidents of intimidation and retaliation by

12 defendant’s deputies to show that defendant engaged in systematic intimidation and retaliation to

13 discourage incarcerated people in the Jails from attempting to access counsel and the courts. (Id.)

14

Defendant does not address plaintiffs’ likelihood of success on the merits of their right-to-

15 access claim under the First and Fourteenth Amendment, beyond his assertion that plaintiffs have

16 failed to exhaust their administrative remedies as to these claims. The court has addressed and

17 rejected defendant’s arguments in this regard above.

18

The court concludes that plaintiffs have shown a likelihood of success on the merits of

19 their right-to-access claim under the First and Fourteenth Amendments because plaintiffs have

20 presented ample evidence showing that defendant interfered with inmates’ access to counsel and

21 the courts.

22

e. Active Interference with Right to Access Assistance of Counsel for Defense

23

Against Criminal Charges in Violation of Sixth Amendment (Claim 4)

24

“The Sixth Amendment provides that ‘[i]n all criminal prosecutions, the accused shall

25 enjoy the right . . . to have the Assistance of Counsel for his defence.’” Texas v. Cobb, 532 U.S.

26 162, 166 (2001) (quoting U.S. Const. amend. VI). “The right to the assistance of counsel

27 guaranteed by the Sixth and Fourteenth Amendments is indispensable to the fair administration of

28 our adversarial system of criminal justice.” Maine v. Moulton, 474 U.S. 159, 168 (1985). “[T]o 38

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1 deprive a person of counsel during the period prior to trial may be more damaging than denial of

2 counsel during the trial itself.” Id. at 170; see also United States v. Helmandollar, 852 F.2d 498,

3 501 (9th Cir. 1988). “[I]n the context of the right to counsel, unreasonable interference with the

4 accused person’s ability to consult counsel is itself an impairment of the right.” Benjamin v.

5 Fraser, 264 F.3d 175, 185 (2d Cir. 2001).

6

Plaintiffs argue that they are likely to succeed on the merits of their Sixth Amendment

7 claim because the legal visitation policy that defendant has implemented is “so overbroad as to

8 infringe on at least some class members’ right to counsel in their criminal cases.” (Doc. No. 11 at

9 28.) To support their claim, plaintiffs cite to the declaration of local criminal defense attorney

10 Annie Davidian. Id. In her declaration, attorney Davidian states that since implementation of the

11 new restrictive policy, she is “unable to meet with incarcerated people or people to whom [she is]

12 appointed before their arraignment.” (Doc. No. 11-8 at ¶¶ 7–8.) In particular, on June 19, 2020,

13 she attempted to schedule a legal visit with a criminal defendant and was unable to do so due to

14 defendant’s policy. (Id. at ¶ 9.) Attorney Davidian also explained that before the pandemic

15 began in March 2020, she regularly had legal visits with incarcerated people in the Jails—even

16 before she was their attorney of record—including confidential visits with prospective clients.

17 (Id. at ¶¶ 2–4.) Since implementation of the new visitation policy, attorney Davidian declares that

18 she has “not been able to visit a single incarcerated client” and has “gone from meeting with

19 approximately half a dozen clients a week to none.” (Id. at ¶ 11.) In addition, the policy requires

20 that incarcerated people fill out a form and identify their attorney of record, but jail staff does not

21 inform them what the purpose of the form is or why they are being asked to complete and sign the

22 form, which has led to delays in access to counsel and difficulties in communicating with clients

23 who are unaware of this new requirement or are hesitant to sign forms without explanation. (Id.

24 at ¶ 10.)

25

Defendant does not present any argument responding to plaintiffs’ Motion as it relates to

26 their Sixth Amendment claim.

27

The court concludes again that plaintiffs have shown a likelihood of success on the merits

28 of their Sixth Amendment claim. Plaintiffs have submitted evidence that defendant’s new policy 39

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1 with respect to legal visits, as implemented, has prevented inmates from meeting with their

2 criminal defense counsel. (Doc. No. 11-8.) Defendant has presented no evidence to refute

3 plaintiff’s evidence but instead has merely asserted that the new visitation policy was

4 unintentionally restrictive and is being revised so as to not limit such visits to attorneys of record.

5 (Doc. No. 15-5.) Yet, it remains to be seen what the purported revised policy actually is since

6 defendant has not provided the court with a copy of it, and it remains unclear what steps, if any,

7 defendant is taking to address the impacts that TCSD’s restrictive new policy has already had.17

8

f. Interference by Threat, Intimidation, or Coercion with Exercise of Rights

9

Secured by Law in Violation of California’s Bane Act (Claim 5)

10

The Bane Act protects against interference “by threat, intimidation, or coercion” or an

11 attempt to do the same “with the exercise or enjoyment by any individual or individuals of rights

12 secured by the Constitution or laws of the United States, or of the rights secured by the

13 Constitution or laws of this state.” Cal. Civ. Code § 52.1(a). The Bane Act “does not extend to

14 all ordinary tort actions because its provisions are limited to threats, intimidation, or coercion that

15 interferes with a constitutional or statutory right.” Venegas v. County of Los Angeles, 32 Cal. 4th

16 820, 843 (2004).

17

Plaintiffs assert that they are likely to succeed on their Bane Act claim because defendant

18 interfered with their constitutional rights “through his restrictive visitation policy and a systematic

19 practice of intimidation and retaliation.” (Doc. No. 11 at 29.) Plaintiffs contend that because

20 they are likely to succeed on the merits of their claims under the First, Sixth, and Fourteenth

21 Amendments, they are also likely to succeed on their derivative Bane Act claim. (Id.) In

22 addition, plaintiffs argue that defendant interfered with their statutory right “to initiate civil

23 actions” as plaintiffs under California law, which includes “the right to be afforded meaningful

24 access to the courts to prosecute those civil actions.” (Doc. No. 11 at 28) (citing Cal. Pen. Code

25 § 2601(d)) (quoting Smith v. Ogbuehi, 38 Cal. App. 5th 453, 465 (2019)).

26 17 As to this issue, as has been the case with many others involved in this case, defendant has 27 simply not been forthcoming at this stage of the litigation. Thus, defendant does not
acknowledge that the new visitation policy has had any impact on inmate visitation other than a 28 temporary 1–2 day delay in such visits when the new policy was launched.
40

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1

In the opposition to the pending Motion, defendant does not present any argument

2 addressing plaintiffs’ Bane Act claim.

3

As noted above, the court has found the declarations from several inmates to be

4 compelling evidence that defendant has interfered, or at least attempted to interfere, by threat and

5 intimidation with the exercise of their constitutional rights and state statutory rights. (See Doc.

6 Nos. 11-14 at ¶¶ 5–6; 11-20 at ¶¶ 8–9; 11-22 at ¶¶ 5–6; 11-16 at ¶¶ 8–10; 11-9 at ¶¶ 8, 9, 16.)

7 Moreover, because the court has already concluded that plaintiffs are likely to succeed on the

8 merits of their claims brought under the First, Sixth, and Fourteenth Amendments, the court

9 agrees that plaintiffs have also shown a likelihood of success on the merits of their Bane Act

10 claim, which is derivative to an extent from those claims.

11

2. Irreparable Harm

12

Having found that plaintiffs have shown a likelihood of success on the merits of their

13 claims, the court now turns to the likelihood that they will suffer irreparable harm in the absence

14 of the granting of preliminary injunctive relief. The risk of irreparable harm must be “likely, not

15 just possible.” All. for the Wild Rockies, 632 F.3d at 1131. “Speculative injury does not

16 constitute irreparable injury sufficient to warrant granting a preliminary injunction.” Caribbean

17 Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988).

18

Several courts have found that the risk to incarcerated people of contracting COVID-19 is

19 not speculative and constitutes a risk of irreparable harm, even where there are few confirmed

20 COVID-19 cases at their institution of confinement. See Kaur v. U.S. Dep’t of Homeland Sec.,

21 No. 2:20-cv-03172-ODW-MRWx, 2020 WL 1939386, at *3 (C.D. Cal. Apr. 22, 2020) (rejecting

22 the argument that the petitioner’s “alleged harm is merely speculative because Respondents have

23 implemented precautions at Adelanto and there are currently no COVID-19 cases identified

24 there” as “missing the point”); Perez v. Wolf, 445 F. Supp. 3d 275, 293 (N.D. Cal. Apr. 14, 2020)

25 (“COVID-19 is a highly contagious and novel coronavirus. The mere fact that no cases have

26 been reported in the Aurora Facility is irrelevant—it is not a matter of if COVID-19 will enter the

27 facility, but when it will be detected there.”) (internal citation omitted); Banks v. Booth, No. 20-

28 cv-849-CKK, 2020 WL 3303006, at *16 (D.D.C. June 18, 2020), appeal docketed, No. 20-5216 41

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 42 of 49

1 (D.C. Cir. July 22, 2020) (“The Court concludes that Plaintiffs’ risk of contracting COVID-19

2 and the resulting complications, including the possibility of death, is the prototypical irreparable

3 harm.”) (citing Harris v. Bd. of Supervisors, L.A. Cty., 366 F.3d 754, 766 (9th Cir. 2004) (finding

4 irreparable harm from pain, infection, and possible death due to delayed treatment from the

5 reduction of hospital beds)).

6

In addition, “[i]t is well established that the deprivation of constitutional rights

7 ‘unquestionably constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th

8 Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); see also Basank v. Decker, No.

9 20-cv-2518-AT, 2020 WL 1481503, at *6 (S.D.N.Y. Mar. 26, 2020) (finding that “[t]he risk of

10 contracting COVID-19 in tightly-confined spaces, especially jails, is now exceedingly obvious”

11 and concluding that “[p]etitioners face irreparable injury—to their constitutional rights and to

12 their health”).

13

As described above, plaintiffs have shown a likelihood of success on the merits of their

14 constitutional claims, which involve both the risks associated with contracting COVID-19 and the

15 deprivation of their constitutional right to access the courts and counsel. Plaintiffs contend that

16 “[t]he risk to [their] health undeniably rises to the level of irreparable harm.” (Doc. No. 11 at 31.)

17 Similar to the arguments that have been rejected by courts in the above-referenced decisions,

18 defendant here argues that plaintiffs have not shown irreparable harm because “[t]he measures

19 already taken and being taken by Defendants [sic] has ensured that there has not been a single

20 inmate death in the jails,” “there has not been a single hospitalization for COVID-19 or flu-like

21 symptoms,” and “[o]ngoing efforts have further reduced the potential for contamination.” (Doc.

22 No. 15-1 at 26.) But as one district court recently explained in determining that “a significant risk

23 of probable irreparable harm” had been shown:

24

The fact that plaintiffs are exposed to some risk of contracting

25

COVID-19, however small, is probably not sufficient to prove irreparable harm, even though they are more vulnerable. For

26

example, if plaintiffs were released, they would still suffer some risk of exposure in the community. However, the plaintiffs who are

27

confined are not only confined in close quarters, but some inmates in the Jail have already contracted COVID-19. [citation] (defendant’s

28

declaration that at least ten inmates have tested positive for COVID-

42

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 43 of 49

1

19). Although defendant argues that the decreasing number of

confirmed COVID-19 cases in the Jail indicate that plaintiffs do not

2

have a risk of irreparable harm, defendant does not deny that some

inmates are still in isolation after contracting COVID-19 in the Jail,

3

and asymptomatic staff and new inmates present an ongoing

possibility of additional sources of infection. The Jail is taking the

4

preventative measures it is currently taking because of the real risk

of COVID-19 exposure to inmates.

5

6 Carranza v. Reams, No. 20-cv-00977-PAB, 2020 WL 2320174, at *11 (D. Colo. May 11, 2020).

7

This court concludes that plaintiffs have shown a likelihood that they will suffer

8 irreparable harm in the absence of the requested injunctive relief.

9

3. Balance of the Equities / Public Interest

10

Courts “must balance the competing claims of injury and must consider the effect on each

11 party of the granting or withholding of the requested relief,” and “should pay particular regard for

12 the public consequences in employing the extraordinary remedy of injunction.” Winter v. Nat.

13 Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “In assessing whether the plaintiffs have met this

14 burden, the district court has a duty to balance the interests of all parties and weigh the damage to

15 each.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th Cir. 2009) (internal quotation marks

16 and alteration omitted). “Where the government is a party to a case in which a preliminary

17 injunction is sought, the balance of the equities and public interest factors merge.” Padilla v.

18 Immigration & Customs Enf’t, 953 F.3d 1134, 1141 (9th Cir. 2020) (citing Drakes Bay Oyster

19 Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014)). “Generally, public interest concerns are

20 implicated when a constitutional right has been violated, because all citizens have a stake in

21 upholding the Constitution.” Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005).

22

Here, plaintiffs contend that the balance of equities tips in their favor because “defendant

23 has no interest in maintaining unconstitutional conditions . . . or in unlawfully interfering with

24 plaintiffs’ right to access the courts.” (Doc. No. 11 at 31.) In addition, plaintiffs argue that

25 consideration of the public interest weighs in their favor because “it is always in the public

26 interest to prevent the violation of a party’s constitutional rights,” and preventing a COVID-19

27 outbreak in the Jails benefits the public by preventing further spread of the virus in the

28 community and burden on local healthcare facilities. (Id. at 32) (quoting Melendres v. Arpaio, 43

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 44 of 49

1 695 F.3d 990, 1002 (9th Cir. 2012)).

2

Defendant argues that plaintiffs understate his interests, which include “the orderly

3 administration of the jails, the management of public resources, and in maintaining public and

4 institutional security and safety.” (Doc. No. 15-1 at 26.) But defendant stops short of arguing

5 that these interests outweigh the interests of plaintiffs and the public, particularly with regards to

6 public health. See Banks, 2020 WL 3303006, at *16 (concluding that an injunction that “lessens

7 the risk that Plaintiffs will contract COVID-19 is in the public interest because it supports public

8 health,” and “ordering Defendants to take precautions to lower the risk of infections for Plaintiffs

9 also benefits the public”). In addition, the court is mindful of the Supreme Court’s guidance that

10 “[c]ourts may not allow constitutional violations to continue simply because a remedy would

11 involve intrusion into the realm of prison administration.” Brown v. Plata, 563 U.S. 493, 511

12 (2011).18

13

Ultimately, the court finds defendant’s arguments in opposition to the pending motion to

14 be both perfunctory and unpersuasive. Notably, several district courts across the country have

15 recently rejected similar arguments advanced by defendants in cases like this one. See, e.g.,

16 Banks, 2020 WL 3303006, at *16 (granting injunctive relief and citing decisions by “other courts

17 [that] have also found that the balance of equities favors injunctive relief to ensure that inmates

18 are adequately protected from the threat of COVID-19”); Carranza, 2020 WL 2320174, at *11

19

20 18 The court is also mindful that jail administrators are entitled to deference “when there is evidence that the challenged medical decision was made pursuant to” a “policy or practice [that]
21 addresses bona fide safety and security concerns.” Chess v. Dovey, 790 F.3d 961, 974 (9th Cir. 22 2015). However, “in deciding whether there has been deliberate indifference to an inmate’s
serious medical needs,” the court “need not defer to the judgment of prison doctors or 23 administrators.” (Id.) (quoting Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014)); see
also Mendiola–Martinez v. Arpaio, 836 F.3d 1239, 1254 (9th Cir. 2016) (“[D]eliberate 24 indifference ‘can typically be established or disproved without the necessity of balancing
competing institutional concerns for the safety of prison staff or other inmates.’”) (quoting 25 Whitley v. Albers, 475 U.S. 312, 320 (1986)); Shorter v. Baca, 895 F.3d 1176, 1187 (9th Cir. 26 2018) (holding that prison officials are not entitled to deference for conditions of confinement
when motivated only by “a concern about overcrowding and understaffing in the facility”). Here, 27 unfortunately, defendant has simply declined to come forward with evidence even defining TCSD
policies or practices with any degree of specificity, let alone with evidence linking those policies 28 and practices to bona fide safety and security concerns.
44

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 45 of 49

1 (finding that the “high risk of serious illness or death if [plaintiffs] contract COVID-19 while in

2 the Weld County Jail [] outweighs the harms identified by the defendant, which include

3 maintaining control over the Jail without Court supervision and the costs of complying with

4 plaintiffs’ proposed preliminary injunction”); Mays v. Dart, No. 20-cv-2134, 2020 WL 1812381,

5 at *13 (N.D. Ill. Apr. 9, 2020) (rejecting the sheriff’s arguments that “an injunction requiring him

6 to implement additional health and protective measures would be disruptive to his ongoing efforts

7 to address the spread of coronavirus in the Jail” and “that the court should defer to the Jail’s

8 practices and its execution of policies that preserve internal order, discipline, and security in the

9 facility”); Ahlman v. Barnes, 445 F. Supp. 3d 671, 694 (C.D. Cal. May 26, 2020) (“mandating

10 compliance with the CDC Guidelines in the Jail serves the public interest”).

11

The court concludes that plaintiffs have satisfied their burden to show that the balance of

12 the equities and public interest weighs in their favor. Accordingly, the court will grant plaintiffs’

13 Motion, in part, and issue a temporary restraining order that provides some of the injunctive relief

14 that plaintiffs have requested. However, the court does not find that the evidentiary record before

15 it is sufficiently developed to support an injunction requiring defendant to immediately test all

16 inmates and staff in the Jails for COVID-19 at this time. Instead, the court finds it prudent at this

17 point to instead require defendant to develop written policies on key COVID-19 related issues, as

18 detailed below, and will order temporary injunctive relief accordingly. See Carranza, 2020 WL

19 2320174, at *15 (granting a preliminary injunction and ordering the defendant sheriff to institute

20 policies or procedures regarding social distancing, enhanced sanitation, masking and increased

21 medical monitoring and also requiring the sheriff to compile and provide to the court and

22 opposing counsel a list of those medically vulnerable inmates identifying the risk category for

23 each such inmate). In the court’s view, this minimally intrusive approach will enable the parties

24 (and the public for that matter) to finally gain an understanding of what exactly defendant’s

25 policies are with regard to the COVID-19 pandemic and to develop an updated factual record

26 regarding what is actually happening in the Jails with respect to COVID-19 related conditions.

27 To the extent plaintiffs wish thereafter to seek a preliminary injunction, or otherwise challenge

28 defendant’s policies and actions, they can so move based on a more adequately developed record. 45

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 46 of 49

1 C. Plaintiffs’ Request for Leave to Serve Early Discovery

2

Plaintiffs have also requested a court order authorizing them to serve discovery requests

3 without requiring them to wait for the Rule 26(f) conference to be held. (Doc. No. 11 at 32–33.)

4 Defendant responds to plaintiffs’ request by merely asserting that plaintiffs “provide no

5 substantive rationale as to why the normal discovery timelines are inappropriate.” (Doc. No. 15-1

6 at 28.)

7

Federal Rule of Civil Procedure Rule 26(d) provides that no discovery can be sought

8 “from any source before the parties have conferred as required by Rule 26(f), except . . .when

9 authorized . . . by court order.” Fed. R. Civ. P. 26(d)(1). Generally, courts require a showing of

10 good cause to permit expedited discovery. In re Countrywide Fin. Corp. Derivative Litig., 542 F.

11 Supp. 2d 1160, 1179 (C.D. Cal. 2008); Roadrunner Intermodal Servs., LLC v. T.G.S. Transp.,

12 Inc., No. 1:17-cv-01056-DAD-BAM, 2017 WL 3783017, at *3 (E.D. Cal. Aug. 31, 2017).

13

“Good cause may be found where the need for expedited discovery, in consideration of

14 the administration of justice, outweighs the prejudice to the responding party.” Semitool, Inc. v.

15 Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). In determining whether good

16 cause exists, courts consider: (1) whether a preliminary injunction is pending; (2) the breadth of

17 the discovery request; (3) the purpose for requesting the expedited discovery; (4) the burden on

18 the defendants to comply with the requests; and (5) how far in advance of the typical discovery

19 process the request was made.” Rovio Entm’t Ltd. v. Royal Plush Toys, Inc., 907 F. Supp. 2d

20 1086, 1099 (N.D. Cal. 2012).

21

Plaintiffs argue that good cause exists here because “outbreaks of COVID-19 have already

22 been reported in the Jails” and “[d]efendant has blocked Plaintiffs’ attempts to investigate the

23 extent of the crisis at every turn, including through interfering with their right to counsel and the

24 courts.” (Doc. No. 11 at 33.) According to plaintiffs, immediate discovery is necessary so that

25 they can “assess the situation in the Jails and determine whether to seek further remedial

26 measures” and “to determine whether Defendant has made additional changes in response to the

27 changing facts on the ground or any orders by this Court.” (Id.) With regard to the burden that

28 early discovery would place on defendant, plaintiffs argue that any such burden is minimal 46

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 47 of 49

1 because plaintiffs would seek the same discovery during the course of the litigation. Moreover,

2 defendant has not presented any evidence nor even any argument as to how early discovery would

3 be burdensome or otherwise problematic for him.

4

The court finds that good cause has been shown for early discovery by plaintiffs and will

5 authorize the parties to serve early discovery in this case.

6

CONCLUSION

7

The court pauses to note that at the conclusion of the hearing on the pending Motion it

8 encouraged the parties to meet and confer to determine whether resolution could be reached as to

9 at least some of the issues discussed above. The court did so because it appeared that there had

10 been a complete lack of meaningful communication between the parties and that at least some of

11 these issues should be capable of resolution without the need for intervention by this court.

12 Apparently the court’s hope in that regard was not well placed. Given the lack of meaningful

13 response by defendant to plaintiffs’ Motion and to the evidence presented by plaintiffs in support

14 thereof, the court is compelled to issue this order.

15

For all of the reasons stated above:

16

1. Plaintiffs’ application for provisional class certification (Doc. No. 10) is granted;

17

a. The provisionally certified class is defined as: “All people who are now, or

18

in the future will be, incarcerated in Tulare County Jails.”

19

b. The ACLU Foundation of Northern California and the law firm Munger,

20

Tolles & Olson are appointed as class counsel.

21

c. Plaintiffs Criswell, Johnson, Ibarra, and Camposeco are appointed as class

22

representatives.

23

2. Plaintiffs’ motion for a temporary restraining order (Doc. No. 11) is granted, in

24

part. The court orders that, pending a hearing on a motion for preliminary

25

injunction, defendant shall be required to take the following actions:

26

a. Adopt a policy designed to reduce contacts between incarcerated people in

27

all common areas, including (but not limited to) bathrooms, day rooms,

28

yards, and pill lines, and allow for the possibility of social distancing by

47

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 48 of 49

1

inmates. Defendant shall memorialize this policy in writing and provide a

2

copy of the policy to the court and plaintiffs’ counsel by September 14,

3

2020.

4

b. Adopt a policy with regards to masks, including the provision of masks to

5

inmates and requirements for the wearing of masks. Defendant shall

6

memorialize this policy in writing and provide a copy of the policy to the

7

court and plaintiffs’ counsel by September 8, 2020.

8

c. Memorialize in writing the policy and procedure TCSD enacted on July 14,

9

2020 with regards to isolation, quarantine, and observation, including

10

TCSD’s policy for conducing COVID-19 testing. Defendant shall provide

11

a copy of the policy to the court and plaintiffs’ counsel by September 8,

12

2020.

13

d. Provide to the court and plaintiffs’ counsel, by September 14, 2020, a

14

report detailing TCSD’s COVID-19 testing to date, including: how many

15

total tests have been conducted, how many inmates have been tested, how

16

many staff members have been tested, when those tests conducted, how

17

many inmates tested positive, how many staff members tested positive,

18

how many inmates refused to be tested, and how many staff members

19

refused to be tested. The report shall include how many “new intakes”

20

have been tested as part of the procedure TCSD enacted on July 14, 2020,

21

when those tests were conducted, and how many of those tests were

22

positive for COVID-19. In addition, the report shall provide the number of

23

inmates who have been tested as a result of Wellpath’s screening criteria,

24

how many of those inmates tested positive, when those tests were

25

conducted, and in which facility the inmates were incarcerated in at the

26

time they were tested. Defendant shall also provide a copy of the current

27

screening criteria being employed at the Jails by Wellpath and specify

28

when Wellpath began using that current screening criteria.

48

Case 1:20-cv-01048-DAD-SAB Document 26 Filed 09/02/20 Page 49 of 49

1

e. Ensure that Plaintiffs’ counsel have the ability to promptly (i.e., within two

2

days) and confidentially communicate via remote means (i.e., video call)

3

with incarcerated people at the Jails.

4

f. Immediately cease requiring inmates to complete authorization forms as

5

part of the attorney visitation policy enacted on May 29, 2020 (as revised

6

on June 4, 2020).

7

g. Provide to the court and plaintiffs’ counsel by September 8, 2020, TCSD’s

8

revised legal visitation policy in writing.

9

h. Ensure that no intimidation of or retaliation against incarcerated people

10

who speak with counsel takes place at the Jails.

11

3. No bond shall be required to be posted by plaintiffs pursuant to Rule 65(c) of the

12

Federal Rules of Civil Procedure;

13

4. Plaintiffs’ request for leave to serve early discovery is granted;

14

5. All other requests for relief in plaintiffs’ motion are denied;

15

6. The parties are directed to meet and confer and, if possible, submit a joint

16

proposed briefing schedule and hearing date with respect to any motion for a

17

preliminary injunction, with that proposed schedule being submitted to the court

18

no later than September 28, 2020.

19

7. Defendant’s motion to supplement his opposition to the pending Motion (Doc. No.

20

25) is granted; and

21

8. Defendant is further notified of his right to apply to the court for modification or

22

dissolution of this temporary restraining order, if appropriate and supported by a

23

showing of good cause, on two (2) days’ notice or such shorter notice as the court

24

may allow. See Fed. R. Civ. P. 65(b)(4) and Local Rule 231(c)(8).

25 26 IT IS SO ORDERED.

27

Dated: September 2, 2020

28

UNITED STATES DISTRICT JUDGE

49

 
 Case 1:20-cv-01048-DAD-SAB Document 33 Filed 10/06/20 Page 1 of 2

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

10

11 CHARLES CRISWELL, et al.,

Case No. 1:20-cv-1048-DAD-SAB

12

Plaintiffs,

13

v.

14 MICHAEL BOUDREAUX,

ORDER REQUIRING DEFENDANT TO FILE RESPONSIVE PLEADING
TEN DAY DEADLINE

15

Defendant.

16

17

On July 29, 2020, Plaintiffs Charles Criswell, Levi Johnson, Samuel Camposeco, Adam

18 Ibarra, and the California Attorneys for Criminal Justice filed a complaint in this matter against

19 Defendant Michael Boudreaux, the Sheriff of Tulare County, seeking declaratory and injunctive

20 relief and a petition for a writ of habeas corpus. (ECF No. 1.) On this same date, the scheduling 21 order issued setting a mandatory scheduling conference for October 29, 2020.1 (ECF No. 4.)

22 Defendant was personally served on July 30, 2020. (ECF No. 9.)

23

On August 12, 2020, Plaintiffs filed an ex parte application seeking provisional class

24 certification and motion seeking a temporary restraining order. (ECF Nos. 10, 11.) Defendant

25 filed a response to the ex parte motions on August 20, 2020. (ECF Nos. 15-16.) Plaintiffs filed a

26 reply on August 24, 2020. (ECF Nos. 17-18.) District Judge Dale A. Drozd held a hearing on

27 the motion on August 26, 2020. (ECF No. 19.) On August 27, 2020, Defendant filed a

28 1 The parties are reminded that a joint scheduling report shall be filed seven days prior to the scheduling conference.

1

Case 1:20-cv-01048-DAD-SAB Document 33 Filed 10/06/20 Page 2 of 2

1 supplement and Plaintiffs filed an opposition to the supplement on August 28, 2020. (ECF No

2 22, 23.) On August 31, 2020, Defendant filed a motion to supplement their opposition. (ECF

3 No. 25.) On September 2, 2020, an order was filed granting the application for provisional class

4 certification and granting the motion for a temporary restraining order in part. (ECF No. 26.)

5

On October 6, 2020, Judge Drozd issued an order setting a briefing schedule for a motion

6 for a preliminary injunction. (ECF No. 32.)

7

In this matter, Defendant was served on July 30, 2020, and has not filed a pleading in

8 response to the complaint. Rule 12 of the Federal Rules of Civil Procedure provides that a

9 defendant must serve an answer within 21 days after being served with the summons and

10 complaint. Fed. R. Civ. P. 12(a)(1)(A).

11

Accordingly, IT IS HEREBY ORDERED that Defendant shall file a responsive pleading

12 within ten (10) days of the date of entry of this order.

13 IT IS SO ORDERED.
14
15 Dated: October 6, 2020
16

UNITED STATES MAGISTRATE JUDGE

17

18

19

20

21

22

23

24

25

26

27

28

2

 
 Case 1:20-cv-01048-DAD-SAB Document 43 Filed 11/02/20 Page 1 of 14

1 JACOB S. KREILKAMP (State Bar No. 248210) jacob.kreilkamp@mto.com
2 WILLIAM D. TEMKO (State Bar No. 98858) william.temko@mto.com
3 SARA A. McDERMOTT (State Bar No. 307564) sara.mcdermott@mto.com
4 OMAR H. NOURELDIN (State Bar No. 301549) omar.noureldin@mto.com
5 LAUREN M. HARDING (State Bar No. 308029) lauren.harding@mto.com
6 ARIEL T. TESHUVA (State Bar No. 324238) ariel.teshuva@mto.com
7 ESTALYN S. MARQUIS (State Bar No. 329780) estalyn.marquis@mto.com
8 MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue
9 Fiftieth Floor Los Angeles, California 90071-3426
10 Telephone: (213) 683-9100 Facsimile: (213) 687-3702
11 KATHLEEN GUNERATNE (State Bar No. 250751)
12 KGuneratne@alcunc.org AMY GILBERT (State Bar No. 316121)
13 AGilbert@aclunc.org ACLU FOUNDATION OF NORTHERN CALIFORNIA
14 39 Drumm Street San Francisco, California 94111
15 Telephone: (415) 621-2493

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION

19

20 Charles Criswell, Levi Johnson, Samuel Camposeco, Adam Ibarra, and California
21 Attorneys for Criminal Justice,

22

Plaintiffs,

23

vs.

24 Michael Boudreaux, in his official capacity as Sheriff of Tulare County,
25 Defendant.
26

Case No. 1:20-cv-01048-DAD-SAB
NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION
Filed Concurrently with Motion for Preliminary Injunction and Supporting Exhibits
Judge: Hon. Dale A. Drozd Dept: 5
Submitted for decision without oral argument

27

28

Case No. 1:20-cv-01048-DAD-SAB NOTICE AND MOTION FOR PROVISIONAL CLASS CERTIFICATION

Case 1:20-cv-01048-DAD-SAB Document 43 Filed 11/02/20 Page 2 of 14

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE that Plaintiffs Charles Criswell, Levi Johnson, Samuel

3 Camposeco, Adam Ibarra, and California Attorneys for Criminal Justice will, and hereby do, move

4 for provisional certification of the Provisional Class and a Subclass of Medically Vulnerable

5 Persons, re-appointing Plaintiffs as class representatives, and re-appointing class counsel, pursuant

6 to Federal Rule of Civil Procedure 23 and Local Rule 205.

7

For purposes of their request for a preliminary injunction, Plaintiffs seek to provisionally

8 certify the following class: “all people who are now, or in the future will be, incarcerated in Tulare

9 County jails” (“Provisional Class”), along with a subclass of “persons whose age or medical

10 conditions put them at increased risk of severe illness from COVID-19 and who are confined pre-

11 trial and pursuant to a judgment of conviction in the Tulare County Jails” (“Medically Vulnerable

12 Subclass”).

13

This Motion is based upon this Notice, the accompanying Memorandum of Points and

14 Authorities, the Motion for Preliminary Injunction, the declarations and exhibits filed in support

15 thereof, the Class Action Complaint, the other filings in this action, and any and all evidence,

16 argument, or other matters that may be presented at a hearing.

17

On October 28, 2020, Amy Gilbert, Lauren Harding, Sara McDermott, Omar Noureldin,

18 and Ariel Teshuva, counsel for Plaintiffs met and conferred with counsel for Defendant by

19 telephone and gave notice of Plaintiffs’ application for provisional class certification. See Ex. 1 to

20 PI Motion (Noureldin Decl.) ¶ 2. Counsel advised that Plaintiffs would be moving for a

21 preliminary injunction and would also be seeking to certify the class for purposes of the motion.

22 Id. Defense counsel advised that they opposed the motion. Id.

23

On November 2, 2020, Counsel for Defendant advised Plaintiffs that Defendant does not

24 oppose provisional certification of the Provisional Class or the Medically Vulnerable Subclass in

25 the event the Court grants preliminary injunctive relief. See id. ¶ 3. Defendant will, however, be

26 opposing any request for preliminary injunctive relief. Id.

27

28

-2-

Case No. 1:20-cv-01048-DAD-SAB

NOTICE AND MOTION FOR PROVISIONAL CLASS CERTIFICATION

Case 1:20-cv-01048-DAD-SAB Document 43 Filed 11/02/20 Page 3 of 14

1 DATED: November 2, 2020 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

MUNGER, TOLLES & OLSON LLP

By:

/s/ Lauren M. Harding

Lauren M. Harding

Attorneys for Plaintiffs

Case No. 1:20-cv-01048-DAD-SAB NOTICE AND MOTION FOR PROVISIONAL CLASS CERTIFICATION

Case 1:20-cv-01048-DAD-SAB Document 43 Filed 11/02/20 Page 4 of 14

1

TABLE OF CONTENTS

2

Page

3 INTRODUCTION..............................................................................................................................1

4 ARGUMENT .....................................................................................................................................2

5 I.
6 II.
7
8
9
10
11 III.
12

THE COURT SHOULD RE-CERTIFY THE PROVISIONAL CLASS FOR PURPOSES OF THE PRELIMINARY INJUNCTION ........................................................2
THE PROPOSED SUBCLASS MEETS THE REQUIREMENTS OF RULE 23(A)...........4
A. The Subclass Is Too Numerous Such That Joinder Is Impracticable.........................4
B. There Are Common Questions of Law and Fact to the Subclass...............................5
C. The Plaintiffs’ Claims Are Typical of Subclass Members’ Claims ...........................6
D. Plaintiffs’ Representation Is Adequate.......................................................................7
THE PROPOSED SUBCLASS MEETS THE REQUIREMENTS OF RULE 23(B)(2) ..................................................................................................................................7

13 IV. CONCLUSION ......................................................................................................................9

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-i-

Case No. 1:20-cv-01048-DAD-SAB

NOTICE AND MOTION FOR PROVISIONAL CLASS CERTIFICATION

Case 1:20-cv-01048-DAD-SAB Document 43 Filed 11/02/20 Page 5 of 14

1

TABLE OF AUTHORITIES

2

Page(s)

3 FEDERAL CASES

4 Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952 (9th Cir. 2013)........................................................................................................5
5

6

Ahlman v. Barnes, 445 F. Supp. 3d 671 (C.D. Cal. 2020)..........................................................................................1

7 Alcantara v. Archambeault,
8 No. 20CV0756 DMS (AHG), 2020 WL 2315777 (S.D. Cal. May 1, 2020)................................1

9 Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001)........................................................................................................6
10 Arroyo v. United States Dep’t of Homeland Sec.,
11 No. SACV 19-815 JGB, 2019 WL 2912848 (C.D. Cal. June 20, 2019)......................................4
12 Ellis v. Costco Wholesale Corp., 13 657 F.3d 970 (9th Cir. 2011)........................................................................................................5

14 Inland Empire-Immigrant Youth Collective v. Nielsen, No. EDCV 17-2048 PSG, 2018 WL 1061408 (C.D. Cal. Feb. 26, 2018) ...................................4
15 Johnson v. California,
16 543 U.S. 499 (2005) .....................................................................................................................6
17 Parsons v. Ryan, 18 754 F.3d 657 (9th Cir. 2014) ................................................................................................3, 6, 8

19 Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010) ..................................................................................................6, 7
20 Torres v. Milusnic,
21 No. 20-cv-4450 CBM PVCx, 2020 WL 4197285 (C.D. Cal. July 14, 2020) ..............................1
22 Wal-Mart Stores, Inc. v. Dukes, 23 564 U.S. 338 (2011) .....................................................................................................................5
24 Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998)......................................................................................................7
25 FEDERAL RULES
26 Fed. R. Civ. P. 23 .................................................................................................................... passim
27

28

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NOTICE AND MOTION FOR PROVISIONAL CLASS CERTIFICATION

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1

INTRODUCTION

2

This Court already has provisionally certified a class of “all people who are now, or in the

3 future will be, incarcerated in Tulare County jails” (“Provisional Class”). See Order on Plaintiffs’

4 Application for Temporary Restraining Order (“TRO”), ECF No. 26, at 21. The Court need not

5 revisit that reasoned decision and should provisionally re-certify the Provisional Class for

6 purposes of Plaintiffs’ present request for preliminary injunctive relief.

7

In addition, the Court should provisionally certify a subclass of “persons whose age or

8 medical conditions put them at increased risk of severe illness from COVID-19 and who are

9 confined pre-trial and pursuant to a judgment of conviction in the Tulare County Jails”

10 (“Medically Vulnerable Subclass”).1 Like the Provisional Class, the Medically Vulnerable

11 Subclass readily meets all four requirements of Rule 23(a) and can be maintained as a class under

12 Rule 23(b)(2). Designating a subclass is appropriate to assist in managing Plaintiffs’ requested

13 emergency relief, which asks this Court to order Defendant to adopt policies and procedures to

14 identify and further protect incarcerated individuals who are predisposed to suffering severe illness

15 from COVID-19. See Fed. R. Civ. P. 23(c)(5) (“When appropriate, a class may be divided into

16 subclasses that are each treated as a class under this rule.”).

17

In certifying this subclass, this Court will find itself in good company, as federal courts

18 within the Ninth Circuit have granted class certification for purposes of entering preliminary

19 injunctive relief for medically vulnerable incarcerated individuals. See, e.g., Torres v. Milusnic,

20 No. 20-cv-4450 CBM PVCx, 2020 WL 4197285, at *23 (C.D. Cal. July 14, 2020) (provisionally

21 certifying class of persons with medical vulnerabilities); Ahlman v. Barnes, 445 F. Supp. 3d 671,

22 1 The conditions that increase the risk of severe illness from COVID-19 include: type 2 diabetes
23 mellitus; chronic kidney disease; cancer; COPD (chronic obstructive pulmonary disease);
24 immunocompromised state, weakened immune system from solid organ transplant; obesity (body mass index of 30 or higher); serious heart conditions such as heart failure, coronary artery disease,
25 or cardiomyopathies; sickle cell disease; asthma (moderate to severe); cerebrovascular disease; liver disease; cystic fibrosis; hypertension (high blood pressure); compromised immune system
26 (immunosuppression) from blood or bone marrow transplant, immune deficiencies, HIV, use of
corticosteroids, or use of other immune weakening medicines; neurological conditions, such as 27 dementia; pregnancy; pulmonary fibrosis (having damaged or scarred lung tissues); overweight 28 (BMI > 25kg/m2, but <30kg/m2); thalassemia; type 1 diabetes mellitus; people aged 55 or older.
See Ex. 4, Harawa Decl. at ¶ 36.

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1 687 (C.D. Cal. 2020) (same); Alcantara v. Archambeault, No. 20CV0756 DMS (AHG), 2020 WL

2 2315777, at *7 (S.D. Cal. May 1, 2020) (same). Defendant does not oppose certification of the

3 Provisional Class or the Medically Vulnerable Subclass in the event that the Court grants

4 preliminary injunctive relief; however, Defendant plans to oppose Plaintiffs’ request for

5 preliminary injunctive relief.

6

ARGUMENT

7

This Court has previously provisionally certified the Provisional Class because it met all

8 four requirements under Rule 23(a) and could be maintained as a class under Rule 23(b)(2). TRO

9 at 21. Because Defendant’s policies or lack of policies at the Jails continue to pose a substantial

10 threat to all incarcerated persons’ health and lives, the Court should provisionally re-certify the

11 Provisional Class for purposes of Plaintiffs’ request for a preliminary injunction.

12

Like the Provisional Class, the Medically Vulnerable Subclass meets each Rule 23(a)

13 requirement: (1) by Defendant’s own admission, at least 40 residents of Tulare County Jails are

14 medically vulnerable, rendering joinder of individual claims to be impracticable; (2) members of

15 the proposed Medically Vulnerable Subclass are subject to the same common questions as to

16 whether or not Defendant must enact policies that accommodate their particular medical

17 conditions; (3) Plaintiffs Levi Johnson and Charles Criswall, who each suffer from comorbidities

18 with COVID-19, are medically vulnerable and thus have claims typical of the class; (4) this Court

19 already has determined Plaintiffs are adequate class representatives, and Plaintiffs Johnson and

20 Criswall would be adequate representatives for the Subclass. The Medically Vulnerable Subclass

21 can also be maintained under Rule 23(b)(2) because, among other reasons, members would

22 directly benefit from any injunctive relief this Court orders for medically vulnerable persons.

23 I. THE COURT SHOULD RE-CERTIFY THE PROVISIONAL CLASS FOR PURPOSES OF THE PRELIMINARY INJUNCTION
24 This Court should provisionally certify the Provisional Class again for purposes of the
25 preliminary injunction, which the Court has previously determined meets the requirements of Rule
26 23(a) and Rule 23(b)(2). As Plaintiffs previously argued in connection with the TRO, the
27 Provisional Class meets all four requirements of Rule 23(a): (1) numerosity is satisfied because,
28

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1 according to data reported by Defendant, as of August 1, 2020, there were approximately 1,086

2 people incarcerated in the Jails; (2) there are common questions pertaining to the entire class

3 because class members are subject to the same policies or lack of policies related to social

4 distancing, testing, and legal visits; (3) Plaintiffs’ claims are typical of class members’ claims

5 because they are all currently incarcerated in the Jails and their claims arise from the same alleged

6 failures of Defendant to adequately respond to COVID-19; (4) Plaintiffs are adequate class

7 representatives because there is no conflict between the named Plaintiffs and members of the

8 Provisional Class and Plaintiffs will vigorously prosecute this action; and the law firm of Munger,

9 Tolles & Olson LLP and the ACLU of Northern California have extensive experience litigating

10 class action lawsuits, including representing incarcerated people and in cases related to conditions

11 of confinement during COVID-19. TRO at 22-26 (summarizing Plaintiffs’ arguments). Based on

12 those arguments, the Court provisionally certified the Provisional Class in connection with

13 Plaintiffs’ request for a TRO. Id. This Court also certified the class in response to Plaintiffs’

14 argument that the Provisional Class could be provisionally maintained as a class under Rule

15 23(b)(2) because Plaintiffs seek uniform injunctive relief and Defendant’s actions and omissions

16 in failing to adequately respond to COVID-19 violate the rights of all proposed class members.

17 See id. at 26-27 (citing Parsons v. Ryan, 754 F.3d 657, 688–89 (9th Cir. 2014)).

18

As explained further in Plaintiffs’ concurrently filed Motion for Preliminary Injunction,

19 not enough has changed in the Jails since this Court’s September 2, 2020 TRO to justify departure

20 from the Court’s previous decision to provisionally certify the class. Regarding numerosity, to

21 Plaintiffs’ knowledge, Defendant has not reduced the number of incarcerated individuals in the

22 Jails in response to the Court’s Order. And Defendant continues to operate the Jails in a manner

23 that violates the constitutional rights of incarcerated people, including by (1) failing to implement

24 an effective testing policy that would identify and help isolate persons infected with the virus,

25 (2) failing to identify and adequately protect the Medically Vulnerable Subclass, and (3) in

26 response to this Court’s TRO, implementing a punitive “social distancing” policy in which

27 incarcerated individuals are allowed out of their cells for only three hours per week. Those policies

28 (or lack of policies) raise questions common to the entire class, such as whether defendant has

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1 implemented effective testing protocols to prevent the spread of COVID-19 in the Jails. See TRO

2 at 23. Defendant’s post-TRO conduct also poses new common questions, such as whether

3 Defendant’s “social distancing” policy is punitive and whether it interferes with class members’

4 right to exercise under the U.S. Constitution. As before, Plaintiffs’ claims are typical of the class

5 because they all relate to the same alleged failures of Defendant to respond adequately to COVID-

6 19. See TRO at 24-25. Finally, Plaintiffs, who are still incarcerated in the Jails, are adequate class

7 representatives because they remain committed to zealously prosecuting this case on behalf of all

8 class members.

9

In short, the conditions at the Jails have not changed enough to justify departing from this

10 Court’s earlier, well-reasoned decision that the Provisional Class should be provisionally certified.

11 This Court should thus re-certify the Provisional Class for purposes of the preliminary injunction.

12 II. THE PROPOSED SUBCLASS MEETS THE REQUIREMENTS OF RULE 23(A)

13

A. The Subclass Is Too Numerous Such That Joinder Is Impracticable

14

This Court already has determined that the Provisional Class, totaling approximately 1,086

15 persons as of August 1, 2020, is too numerous such that joinder of individual parties would be

16 impracticable. See TRO at 22. The Medically Vulnerable Subclass is also sufficiently numerous.

17 For purposes of Rule 23(a)(1), although no specific number is needed, “forty or more members

18 will generally satisfy the numerosity requirement.” Arroyo v. United States Dep’t of Homeland

19 Sec., No. SACV 19-815 JGB, 2019 WL 2912848, at *9 (C.D. Cal. June 20, 2019).

20

There are significantly more than 40 persons residing in Tulare County Jails who have a

21 medical condition that render them predisposed to suffering severe illness from COVID-19: In

22 response to a Public Records Act request, Defendant has acknowledged that at least 46 of his

23 residents have diabetes, 31 have chronic lung disease or moderate to severe asthma, 30 have

24 severe obesity, and 60 have liver diseases. See ECF 11-7 (Verner-Crist Decl.), Ex. F. As explained

25 by Dr. Nina Harawa, each of these conditions predisposes the individual to suffering severe illness

26 from COVID-19. See Ex 4, Harawa Decl. ¶ 36. Accordingly, by Defendant’s own admission, over

27 40 persons in Tulare County Jails have conditions qualifying them for the Medically Vulnerable

28 Subclass.

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1

And there is reason to believe Defendant’s reported figures grossly underestimate the

2 figures of people with vulnerable medical conditions. See Inland Empire-Immigrant Youth

3 Collective v. Nielsen, No. EDCV 17-2048 PSG, 2018 WL 1061408, at *7 (C.D. Cal. Feb. 26,

4 2018) (numerosity satisfied when “general knowledge and common sense indicate that [the class]

5 is large”) (quotations omitted). The Centers for Disease Control (“CDC”) estimates that 33.2% of

6 adults over 20 have hypertension, 15% of the population has diabetes, 7.7% of adults over 18 have

7 asthma.2 Furthermore, incarcerated individuals are more likely to have health problems from

8 COVID-19 than the general population. See Harawa Decl. ¶ 35. If the population of the Tulare

9 County Jails is representative of those statistics, as many as 300 or more persons have

10 hypertension, 150 or more have diabetes, and 70 or more have asthma. The Medically Vulnerable

11 Subclass plainly satisfies Rule 23(a)’s numerosity requirement.

12

B. There Are Common Questions of Law and Fact to the Subclass

13

The Medically Vulnerable Subclass also raises “questions of law or fact common to the

14 [sub]class.” See Fed. R. Civ. P. 23(a)(2). This requirement has “been construed permissively,” see

15 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011), and can be satisfied with even

16 a single common issue. See e.g., Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir.

17 2013) (commonality “does not . . . mean that every question of law or fact must be common to the

18 class; all that Rule 23(a)(2) requires is a single significant question of law or fact.”) (citations and

19 internal marks omitted) (emphasis in original). Stated differently, commonality requires plaintiffs

20 to demonstrate only that their claims “depend upon a common contention . . . [whose] truth or

21 falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”

22 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).

23

24

25 2 See National Center for Health Statistics, FastStats: Hypertension (Oct. 30, 2020), https://www.cdc.gov/nchs/fastats/hypertension.htm; National Center for Health Statistics,
26 FastStats: Diabetes (Oct. 30, 2020), https://www.cdc.gov/nchs/fastats/diabetes.htm; National
Center for Health Statistics, FastStats: Asthma (Oct. 30, 2020), 27 https://www.cdc.gov/nchs/fastats/asthma.htm. The Court may also take judicial notice of publicly
28 accessible information displayed on government websites. See King v. Cnty. of L.A., 885 F.3d 548, 555 (9th Cir. 2018).

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1

This Court has already determined that there are questions of law and fact common to the

2 Provisional Class to satisfy the requirements under Rule 23(a)(2). See TRO at 24. Many of the

3 same questions pertaining to the Provisional Class also apply to the Medically Vulnerable

4 Subclass. Namely, all members of the Medically Vulnerable Subclass are subject to the same

5 practices and policies (or lack thereof) as non-medically vulnerable individuals. Whether or not

6 members of the Medically Vulnerable Subclass should be subject to additional practices and

7 policies that accommodate their increased risk of contracting COVID-19 is a question common to

8 the subclass. This question has several components that are also common to the class—for

9 instance, (a) if the Medically Vulnerable Subclass should be housed separately from the general

10 population; (b) if the Subclass should eat with, bathe with, and use the same facilities as the

11 general population; and (c) if the Subclass should receive additional testing and/or medical care.

12

Commonality is readily satisfied where, as here, a lawsuit challenges “systemic policies

13 and practices that allegedly expose inmates to a substantial risk of harm,” even if there may be

14 “individual factual differences among class members.” Parsons v. Ryan, 754 F.3d 657, 681-82

15 (9th Cir. 2014) (collecting cases and affirming certification of class and subclass of inmates

16 challenging Eighth Amendment violations in Arizona’s prison system); see also Armstrong v.

17 Davis, 275 F.3d 849, 868 (9th Cir. 2001), abrogated on other grounds by Johnson v. California,

18 543 U.S. 499 (2005), (“[C]ommonality is satisfied where the lawsuit challenges a system‐wide

19 practice or policy that affects all of the putative class members.”).

20

C. The Plaintiffs’ Claims Are Typical of Subclass Members’ Claims

21

Named Plaintiffs’ claims are also typical of those of both the Provisional Class and

22 proposed Medically Vulnerable Subclass. See Fed. R. Civ. P. 23(a)(3) (requiring “the claims . . .

23 of the representative parties [be] typical of the claims . . . of the class”). The test of typicality is

24 “‘whether other members [of the class] have the same or similar injury, whether the action is

25 based on conduct which is not unique to the named plaintiffs, and whether other class members

26 have been injured by the same course of conduct.’” Parsons, 754 F.3d at 685 (citation omitted).

27 Typicality is satisfied “when each class member’s claim arises from the same course of events,

28 and each class member makes similar legal arguments to prove the defendant’s liability.”

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1 Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th Cir. 2010) (quotation and citation omitted). “[T]he

2 typicality requirement is permissive and requires only that the representative’s claims are

3 reasonably co-extensive with those of absent class members; they need not be substantially

4 identical.” Id. (quotation marks and citation omitted).

5

In its September 2, 2020 Order, the Court found that the named Plaintiffs’ claims were

6 typical of the Proposed Class. See TRO at 25. Similarly, the claims of Plaintiff Levi Johnson, who

7 suffers from congenital heart failure, hypertension, and respiratory breathing problems, and

8 Plaintiff Charles Criswell, who suffers from diabetes and hypertension, are typical of those of the

9 Medically Vulnerable Subclass. See Decl. of Johnson, ECF 11-17 at ¶ 3; Decl. of Criswall, ECF

10 11-13. Like Plaintiffs Johnson and Criswall, the Medically Vulnerable Subclass’s claims all arise

11 from the same failure of Defendant to create adequate policies and procedures to protect the

12 unique vulnerabilities of those who are at increased risk of severe illness from COVID-19.

13 Without this Court’s intervention, all persons in the Medically Vulnerable Subclass will suffer the

14 same harm: The significant and avoidable risk of serious illness and even potential death from

15 COVID-19.

16

D. Plaintiffs’ Representation Is Adequate

17

This Court already has ruled that the named Plaintiffs met the adequacy requirement under

18 Rule 23(a)(4) because Plaintiffs were adequate class representatives and class counsel. See TRO at

19 26. The Court appointed the ACLU Foundation of Northern California and the law firm Munger,

20 Tolles & Olson as class Counsel. Id. at 27. The Court need not revisit those rulings for purposes of

21 this provisional class certification request and should reaffirm its ruling that named Plaintiffs and

22 their counsel are adequate representatives. In addition, because Plaintiffs Levi Johnson and

23 Charles Criswall have medical vulnerabilities and would be subject to any injunctive relief this

24 Court orders for the Subclass, they are adequate representatives for the Medically Vulnerable

25 Subclass.

26 III. THE PROPOSED SUBCLASS MEETS THE REQUIREMENTS OF RULE 23(B)(2)

27

In addition to satisfying the four prerequisites of Rule 23(a), the Medically Vulnerable

28 Subclass qualifies for class treatment under Rule 23(b)(2). Rule 23(b)(2) requires Plaintiffs to

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1 establish that “the party opposing the class has acted or refused to act on grounds that apply

2 generally to the class, so that final injunctive relief or corresponding declaratory relief is

3 appropriate respecting the class as a whole.” Rule 23(b)(2) was adopted precisely for

4 circumstances such as these—namely, to “permit the prosecution of civil rights actions.” Walters

5 v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998). Accordingly, Rule 23(b)(2) is satisfied when, as

6 here, “class members complain of a pattern or practice that is generally applicable to the class as a

7 whole.” Rodriguez, 591 F.3d at 1125-26 (citations omitted) (holding that class of noncitizens

8 bringing writs of habeas corpus claims relating to detention met Rule 23(b)(2) criteria because “all

9 class members’ [sought] the exact same relief as a matter of statutory or, in the alternative,

10 constitutional right”). That some class members “have suffered no injury or different injuries from

11 the challenged practice does not prevent the class from meeting the requirements of Rule

12 23(b)(2).” Id.

13

In its September 2, 2020 Order, the Court found the Provisional Class “clearly satisfie[s]

14 the requirements of Rule 23(b)(2).” TRO at 27 (citing Parsons v. Ryan, 754 F.3d 657 (9th Cir.

15 2014)). Like the Provisional Class, the Medically Vulnerable Subclass meet the requirements of

16 Rule 23(b)(2) for at least two reasons. First, Defendant’s actions and omissions are generally

17 applicable to the Medically Vulnerable Subclass as a whole because his failure to develop policies

18 and procedures that accommodate the unique vulnerabilities of persons who are at greater risk of

19 illness from COVID-19 significantly increases the risks for all of the members of the proposed

20 Medically Vulnerable Subclass. Second, Plaintiffs’ requested injunctive relief, if enacted, would

21 apply uniformly to each Subclass member and would benefit each member of the Medically

22 Vulnerable Subclass. For example, an order requiring the Jail to provide routine medical checks to

23 the Medically Vulnerable Subclass would apply to each Subclass member uniformly—regardless

24 of whether or not any class member has contracted COVID-19 and regardless of what medical

25 condition they have (e.g., diabetes or asthma).

26

In short, this Court’s decision to grant Plaintiffs’ request for preliminary injunctive relief

27 would afford all Subclass members constitutionally adequate protection from COVID-19.

28 Certification under Rule 23(b)(2) is appropriate under such circumstances. See Parsons, 754 F.3d

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1 at 689 (holding declaratory and injunctive relief proper as to class where “every [member] . . . is

2 allegedly suffering the same (or at least a similar) injury and that injury can be alleviated for every

3 class member by uniform changes in . . . policy and practice”).

4 IV. CONCLUSION

5

For the foregoing reasons, Plaintiffs respectfully request that the Court (1) provisionally re-

6 certify the Provisional Class for purposes of granting preliminary injunctive relief and (2)

7 provisionally certify the Medically Vulnerable Subclasss.

8

9 DATED: November 2, 2020

MUNGER, TOLLES & OLSON LLP

10

11

By:

/s/ Lauren M. Harding

Lauren M. Harding

12

Attorneys for Plaintiffs

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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NOTICE AND MOTION FOR PROVISIONAL CLASS CERTIFICATION

 
 Case 1:20-cv-01048-DAD-SAB Document 44 Filed 11/03/20 Page 1 of 39

1 JACOB S. KREILKAMP (State Bar No. 248210) jacob.kreilkamp@mto.com
2 WILLIAM D. TEMKO (State Bar No. 98858) william.temko@mto.com
3 SARA A. McDERMOTT (State Bar No. 307564) sara.mcdermott@mto.com
4 OMAR H. NOURELDIN (State Bar No. 301549) omar.noureldin@mto.com
5 LAUREN M. HARDING (State Bar No. 308029) lauren.harding@mto.com
6 ARIEL T. TESHUVA (State Bar No. 324238) ariel.teshuva@mto.com
7 ESTALYN S. MARQUIS (State Bar No. 329780) estalyn.marquis@mto.com
8 MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue
9 Fiftieth Floor Los Angeles, California 90071-3426
10 Telephone: (213) 683-9100 Facsimile: (213) 687-3702
11 KATHLEEN GUNERATNE (State Bar No. 250751)
12 KGuneratne@alcunc.org AMY GILBERT (State Bar No. 316121)
13 AGilbert@aclunc.org ACLU FOUNDATION OF NORTHERN CALIFORNIA
14 39 Drumm Street San Francisco, California 94111
15 Telephone: (415) 621-2493

16 Attorneys for Plaintiffs

17

18

UNITED STATES DISTRICT COURT

19

EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION

20

21 Charles Criswell, Levi Johnson, Samuel Camposeco, Adam Ibarra, and California
22 Attorneys for Criminal Justice,

23

Plaintiffs,

Case No. 1:20-cv-01048-DAD-SAB
NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION AND OSC RE: PERMANENT INJUNCTION

24

vs.

25 Michael Boudreaux, in his official capacity as Sheriff of Tulare County,
26 Defendant.
27

28

Filed Concurrently with Motion for Provisional Class Certification; [Proposed] Order Granting Motion for Preliminary Injunction; and Supporting Exhibits

Judge: Date: Time: Dept:

Hon. Dale A. Drozd December 2, 2020 10:00 am 5

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Case 1:20-cv-01048-DAD-SAB Document 44 Filed 11/03/20 Page 2 of 39

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE that on December 2, 2020, at 10:00 a.m., or as soon thereafter as

3 possible, before the Honorable Dale A. Drozd, by videoconference, Plaintiffs Charles Criswell,

4 Levi Johnson, Samuel Camposeco, Adam Ibarra, and California Attorneys for Criminal Justice

5 will, and hereby do, move for a Preliminary Injunction pursuant to Federal Rule of Civil

6 Procedure 65 and Local Rule 231. Plaintiffs request two hours for a hearing.

7

This Motion is based upon this Notice, the Memorandum of Points and Authorities, the

8 declarations and exhibits filed in support thereof, Plaintiffs’ Complaint, the filings in this action,

9 the Proposed Order, which is being filed in accordance with Local Rule 231 and lodged in

10 accordance with Local Rule 137, and any and all evidence, argument, or other matters that may be

11 presented at the hearing.

12

On October 28, 2020, Amy Gilbert, Lauren Harding, Sara McDermott, Omar Noureldin,

13 and Ariel Teshuva, counsel for Plaintiffs, met and conferred by telephone with Christopher

14 Pisano, counsel for Defendant, and gave notice of Plaintiffs’ application and motion. See Ex. 1

15 (Declaration of Omar Noureldin (“Noureldin Decl.”)) ¶¶ 2–4. As outlined in the Noureldin

16 Declaration, counsel have reached an impasse regarding Plaintiffs’ requested relief outlined in this

17 Motion. Id. Plaintiffs’ counsel advised Mr. Pisano that Plaintiffs would be moving for a

18 Preliminary Injunction as to that requested relief. Id.

19 DATED: November 3, 2020

MUNGER, TOLLES & OLSON LLP

20

21

By:

/s/ Omar H. Noureldin

22

OMAR H. NOURELDIN

Attorneys for Plaintiffs 23

24

25

26

27

28

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1 2 3 I. 4 II. 5 6 7 8 9 10 11 12 13 14
III. 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF CONTENTS

Page

INTRODUCTION ..................................................................................................................1

FACTS ...................................................................................................................................4

A. Defendant Actively Invites a COVID-19 Outbreak by Refusing to Test Appropriately .............................................................................................................5

1. Defendant Still Refuses to Test Anyone in Two of Three Operating Jails .................................................................................................................6

2. Defendant Still Refuses to Test Symptomatic People....................................6

3. Defendant Still Refuses to Set an Outbreak Prevention Testing Policy ..............................................................................................................9

4. Defendant Doesn’t Follow the One Testing Policy He Does Have, Leaving the Jails Vulnerable to COVID-19 from New Intakes ...................11

B. Defendant Doesn’t Protect the Medically Vulnerable .............................................13

C. Defendant Enforces Social Distancing with Solitary-Like Restrictive Housing ....................................................................................................................15

ARGUMENT .......................................................................................................................16

A. Plaintiffs and the Proposed Class Are Likely to Succeed on the Merits..................17

1. Defendant’s Continued Refusal to Test the Vast Majority of Detainees Is Deliberately Indifferent ...........................................................18

(a) Defendant is Objectively Deliberately Indifferent to the Serious Risk that Incarcerated People Will Suffer Serious Illness from COVID-19....................................................................18

(b) Defendant Is Well Aware of the Risk of COVID-19 to Incarcerated People and Has Chosen to Consciously Disregard It.......................................................................................21

2. Defendant Acts with Deliberate Indifference by Failing to Identify and Protect Medically Vulnerable Individuals Who Face a Substantial, Increased Risk of Harm ............................................................23

(a) Defendant is Objectively Indifferent to the Particular Medical Needs of Medically Vulnerable Persons ............................23

(b) Defendant Has Acted with Subjective Deliberate Indifference by Knowing of And Disregarding a Substantial, Increased Risk of Harm to Medically Vulnerable Persons ..............25

3. Defendant’s Punitive “Social Distancing” Policy Deprives Incarcerated Individuals of their Right to Exercise......................................27

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1 2 3 4 5
IV. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF CONTENTS (Continued)

Page

B. Plaintiffs and the Proposed Class Members Will Suffer Irreparable Harm .............30

C. The Balance of Equities and Public Interest Both Favor Plaintiffs and the Proposed Class .........................................................................................................31

CONCLUSION ....................................................................................................................32

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1

TABLE OF AUTHORITIES

2

Page

3 FEDERAL CASES

4 Alcantara v. Archambeault, 2020 WL 2315777 (S.D. Cal. May 1, 2020) ..............................................................................25
5

6

All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011)............................................................................................ passim

7 Bell v. Wolfish,
8 441 U.S. 520 (1979) .............................................................................................................29, 30

9 Castillo v. Barr, 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020) ...........................................................................31
10 Davenport v. DeRobertis,
11 844 F.2d 1310 (7th Cir. 1988)....................................................................................................28
12 DeGidio v. Pung, 13 920 F.2d 525 (8th Cir. 1990)......................................................................................................21

14 Duvall v. Dallas Cnty., Tex., 631 F.3d 203 (5th Cir. 2011)......................................................................................................19
15 Edmo v. Corizon, Inc.,
16 935 F.3d 757 (9th Cir. 2019)......................................................................................................31
17 Estelle v. Gamble, 18 429 U.S. 97 (1976) .....................................................................................................2, 17, 22, 26

19 Farmer v. Brennan, 511 U.S. 825 (1994) ...................................................................................................2, 17, 18, 21
20 Gordon v. County of Orange,
21 888 F.3d 1118 (9th Cir. 2018)....................................................................................................18
22 Helling v. McKinney, 23 509 U.S. 25 (1993) .........................................................................................................17, 18, 24
24 Hutto v. Finney, 437 U.S. 678 (1978) ...................................................................................................................30
25 Keenan v. Hall,
26 83 F.3d 1083 (9th Cir. 1996)......................................................................................................28

27 King v. Cnty. of L.A.,

28

885 F.3d 548 (9th Cir. 2018)........................................................................................................4

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1

TABLE OF AUTHORITIES

(Continued)

2

Page

3 Lareau v. Manson, 651 F.2d 96 (2d Cir. 1981) .........................................................................................................19
4 Lemire v. Cal. Dep’t of Corr. & Rehab.,
5 726 F.3d 1062 (9th Cir. 2013) ....................................................................................................20
6 Lopez v. Smith, 7 203 F.3d 1122 (9th Cir. 2000) ....................................................................................................28

8 Martinez-Brooks v. Easter, 2020 WL 2405350 (D. Conn. May 12, 2020) ................................................................21, 24, 25
9 Melendres v. Arpaio,
10 695 F.3d 990 (9th Cir. 2012)......................................................................................................31
11 Morales Feliciano v. Rossello Gonzalez, 12 13 F.Supp.2d 151 (D.P.R. 1998) ................................................................................................21
13 Pierce v. Cnty. of Orange, 526 F.3d 1190 (9th Cir. 2008) ....................................................................................................28
14 Preminger v. Principi,
15 422 F.3d 815 (9th Cir. 2005) ......................................................................................................32
16 Rep. of the Phil. v. Marcos, 17 862 F.2d 1355 (9th Cir. 1988) ......................................................................................................4
18 Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979)......................................................................................................28
19 Torres v. Milusnic,
20 2020 WL 4197285 (C.D. Cal. July 14, 2020) ............................................................................25

21 Univ. of Texas v. Camenisch,

22

451 U.S. 390 (1981) .....................................................................................................................4

23 Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) .................................................................................................................16, 31
24 CONSTITUTIONAL PROVISIONS
25 Eighth Amendment ........................................................................................................18, 25, 28, 30
26
Fourteenth Amendment ............................................................................................................ passim 27

28

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1

TABLE OF AUTHORITIES

(Continued)

2

Page

3 STATE STATUTES

4 Cal. Code Regs. Title 15, § 1065 .....................................................................................................28

5 OTHER AUTHORITIES

6 COVID-19 in a Correctional Facility Employee Following Multiple Brief

7 Exposures to Persons with COVID-19—Vermont, July–August 2020, Morbidity and Mortality Weekly Report (October 21, 2020),

8 https://www.cdc.gov/mmwr/volumes/69/wr/mm6943e1.htm?s_cid=mm6943e1

_w .................................................................................................................................................4 9

Centers for Disease Control and Prevention, Case Investigation & Contract Tracing 10 Guidance, Appendix A – Glossary of Key Terms: “Close Contact” (October 21,

11

2020), https://www.cdc.gov/coronavirus/2019-ncov/php/contacttracing/contact-tracing-plan/appendix.html#contact ....................................................................4

12 Centers for Disease Control and Prevention, Scientific Brief: SARS-CoV-2 and
13 Potential Airborne Transmission, (October 5, 2020), https://www.cdc.gov/coronavirus/2019-ncov/more/scientific-brief-sars-cov-
14 2.html............................................................................................................................................4

15 Disease Control and Prevention, Cases in the U.S., Coronavirus Disease 2019, 16 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html ............................5

17 Los Angeles Times, Tracking the coronavirus in Tulare County, (October 27, 2020), https://www.latimes.com/projects/california-coronavirus-cases-tracking-
18 outbreak/tulare-county/#trends.....................................................................................................4

19 Science, ‘There’s only one chance to do this right’—FDA panel wrestles with COVID-19 vaccine issues, (October 23, 2020),
20 https://www.sciencemag.org/news/2020/10/there-s-only-one-chance-do-right21 fda-panel-wrestles-covid-19-vaccine-issues ................................................................................5
22 See Solitary Confinement Should Be Banned in Most Cases, UN Expert Says, UN News (Oct. 18, 2011), https://news.un.org/en/story/2011/10/392012-solitary-
23 confinement-should-be-banned-most-cases-un-expert-says ......................................................29

24 U.S. Coronavirus Cases Surpass Summer Peak And Are Climbing Higher Fast, NPR (Oct. 27, 2020), https://www.npr.org/sections/health-
25 shots/2020/10/27/928062773/u-s-cases-surpass-summer-peak-and-are26 climbing-higher-fast .....................................................................................................................5

27

28

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1 I. INTRODUCTION

2

This Court’s well-reasoned September 2, 2020 Temporary Restraining Order (“TRO”) put

3 Defendant Sheriff Michael Boudreaux on notice that he was failing to comply with his

4 constitutional obligations to protect individuals incarcerated in the Tulare County Jails against the

5 dangers of COVID-19. Despite having over two months to remedy any constitutional violations,

6 Defendant continues to operate the Jails in a way that puts the Provisional Class at

7 unconstitutionally high risk of contracting the potentially lethal COVID-19 virus. Defendant’s

8 actions pose a particular threat to the proposed Medically Vulnerable Subclass, who have

9 comorbidities that place them at increased risk of serious illness if they contract COVID-19. Yet

10 Defendant has not taken steps to identify—much less actively monitor or protect—medically

11 vulnerable individuals in the Jails.

12

Plaintiffs and prospective class members do not have the luxury of waiting for Defendant

13 to get his act together. With each day that passes, Defendant’s deliberate indifference threatens

14 incarcerated people’s health and lives, creating a risk of an outbreak that could engulf the Jails and

15 create a public health calamity for the surrounding community in Tulare County.

16

Defendant’s continued deliberate indifference is apparent in three ways. First, even though

17 this Court found in the TRO that Plaintiffs were likely to prevail on their claims that Defendant

18 was deliberately indifferent by failing to enact an effective testing plan to prevent an outbreak of

19 COVID-19 in the Jails, Defendant continues to refuse to test residents in two of the three facilities.

20 His own testing data show that only one person has been tested at the Bob Wiley or South County

21 facilities over the course of the eight-month pandemic. In response to the Court’s TRO, Defendant

22 implemented a policy for testing new intakes within the first 24 hours of arriving at the Jails. But

23 this new policy fails to account for the hundreds of other incarcerated individuals residing at the

24 Jails who have no way of knowing if they have COVID-19. In the nearly eight months since the

25 pandemic started, Defendant has tested only 18 incarcerated individuals outside of intake or a

26 known exposure. Defendant’s own data show that Wellpath, the medical provider at the Jails, does

27 not even test symptomatic people 95% of the time. Defendant’s callous refusal to test even

28 symptomatic individuals, who may be at risk of serious injury or death and who may be actively

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1 spreading the disease within the Jails, reinforces the need for the Court to order Defendant to: (1)

2 conduct a one-time test of all residents of the Jails and (2) test individuals presenting with any

3 symptom of COVID-19. Defendant’s failure to take either step following this Court’s TRO shows

4 that Defendant cannot be trusted to identify individuals at risk of contracting COVID-19 and take

5 the constitutionally required measures to protect them from contracting this potentially fatal virus.

6

Second, despite his awareness that certain individuals with pre-existing conditions have an

7 increased risk of severe illness and death if they contract COVID-19, Defendant has not sought to

8 identify—much less to protect—all members of the Medically Vulnerable Subclass. Assistant

9 Sheriff Cheri Lehner, who is third-in-command at the Jails, and Lieutenant Cory Jones, who is

10 responsible for overseeing the only facility that conducts tests (Adult Pre-Trial), attempted in their

11 depositions to disclaim responsibility for the safety of these persons by pointing the finger at

12 Wellpath, the Jails’ medical provider, as the party that is responsible for identifying medically

13 vulnerable individuals. But under established Supreme Court precedent, Defendant is obligated to

14 provide “humane conditions of confinement,” which includes providing adequate medical care.

15 See Farmer v. Brennan, 511 U.S. 825, 832 (1994); accord Estelle v. Gamble, 429 U.S. 97, 103

16 (1976). Failing to attend to an incarcerated individual’s safety and medical needs is

17 unconstitutional regardless of whether the harm stems from a Jails’ doctor or prison officials

18 themselves. Estelle, 429 U.S. at 103–05.

19

And Wellpath itself clearly perceives a continued threat to Medically Vulnerable persons

20 from contact with incarcerated people in the Jails. Wellpath’s Medical Director testified that she

21 was so concerned that she would contract COVID-19 in the Jails and give it to a Medically

22 Vulnerable relative that she asked for an accommodation so that she would not have to work in the

23 Jails’ Adult Pre-Trial facility. Plaintiffs and members of the proposed Medically Vulnerable

24 Subclass thus need this Court’s help—now—to require Defendant to identify all Medically

25 Vulnerable persons in the Jails and take additional precautions to ensure their health and safety.

26

Finally, Defendant has responded to this Court’s TRO requiring him to adopt a social

27 distancing policy with what can only be described as punitive isolation and flagrant disregard for

28 incarcerated persons’ right to exercise. See TRO at 47-48 (ordering Defendant to “[a]dopt a policy

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1 designed to reduce contacts between incarcerated people in all common areas . . . and allow for the

2 possibility of social distancing by inmates”). In response to the Court’s TRO, Defendant has

3 implemented a policy that guarantees incarcerated individuals are out of their cells for only three

4 hours per week. In other words, they may be in their cells—without access to phones, TVs,

5 computers, or showers—for 165 out of 168 hours per week. The Sheriff’s Department rationalizes

6 this by saying only four (and possibly eight) incarcerated individuals can be let out of their cells at

7 any given time. This extreme punitive lock-down is excessive to any goal of ensuring social

8 distancing; for instance, Adult Pre-Trial has a large yard and common space that each can safely

9 accommodate many more than four persons at a time. Defendant’s policy, which he insists is

10 consistent with Title 15, instead violates Title 15 by allowing far less than three hours of exercise

11 each week. It also violates the U.S. Constitution, which guarantees a right to exercise, typically for

12 at least five hours each week. In short, Defendant’s response to this Court’s TRO not only fails to

13 protect incarcerated people from COVID-19, it also further infringes on incarcerated people’s

14 other constitutional rights.

15

Defendant’s conduct—before and during this litigation—makes clear that absent a Court

16 order, Plaintiffs and Provisional Class members will continue to face serious risks of harm,

17 including possibly death, in violation of their constitutional rights due to Defendant’s deliberate

18 indifference to the threat of COVID-19. Accordingly, and as described in greater detail in the

19 accompanying Proposed Order, Plaintiffs and the proposed Provisional Class and Medically

20 Vulnerable Subclass request the following:

21 1. On testing, Plaintiffs ask that Defendant conduct a one-time test of all incarcerated people

22

in all facilities. Plaintiffs also ask the Court to order Defendant to stop using the current

23

Supplemental Screening form that denies testing even to symptomatic individuals and

24

instead to provide testing to any person self-reporting a symptom of COVID-19. Plaintiffs

25

also ask that Defendant develop an affirmative outbreak control and prevention plan.

26 2. As to medically vulnerable people, Plaintiffs ask that Defendant (1) identify all medically

27

vulnerable people and (2) develop policies to affirmatively monitor them for COVID-19.

28 3. On Defendant’s social distancing policy, Plaintiffs ask that Defendant develop a plan to

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1

allow incarcerated people at least one hour per day of exercise.

2 4. Plaintiffs further request reporting, compliance, and monitoring of Defendant’s COVID-19

3

response, including the appointment of independent experts to evaluate Defendant’s

4

compliance with this Court’s Orders.

5 II. FACTS

6

Since the Court issued the TRO on September 2, 2020, society has learned more about how

7 to protect itself from COVID-19. The Centers for Disease Control and Prevention (“CDC”) has,

8 for example, told us that the most common way by which people are infected with COVID-19 is

9 through exposure to respiratory droplets (e.g., breathing, speaking, coughing, sneezing) that carry

10 the infectious virus, including through airborne transmission.1 And the virus can spread with even

11 minimal contact: 15 minutes cumulative within a 24-hour period.2

12

We also now know, through discovery and continued investigative efforts, that in stark

13 contrast to expert opinions and CDC guidelines, the overwhelming majority of people in the

14 Tulare County Jails (the “Jails”) who reported COVID-19 symptoms (including fever, cough, sore

15 throat, shortness of breath, or some combination) since the pandemic began have been denied

16 COVID-19 testing. And we know the rate of community transmission in Tulare County remains

17 “widespread,” and the rate of hospitalizations, as of October 27, 2020, is also growing.3

18

Unfortunately, however, one thing has not changed: COVID-19 remains a highly

19 infectious and deadly disease without a cure. As of November 1, 2020, over 229,000 people in the

20

21

1 See Centers for Disease Control and Prevention, Scientific Brief: SARS-CoV-2 and Potential Airborne Transmission, (October 5, 2020), https://www.cdc.gov/coronavirus/2019-ncov/more/scientific-brief-sars-cov-2.html. A preliminary

injunction is customarily granted on the basis of evidence that is less complete than what is presented at a trial on the
22 merits. Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). The Court may consider hearsay and otherwise

inadmissible evidence when considering whether to issue a preliminary injunction. Rep. of the Phil. v. Marcos, 862
23 F.2d 1355, 1363 (9th Cir. 1988). The Court may also take judicial notice of publicly accessible websites. See King v.

Cnty. of L.A., 885 F.3d 548, 555 (9th Cir. 2018).
24 2 Centers for Disease Control and Prevention, Case Investigation & Contract Tracing Guidance, Appendix A –

25

Glossary of Key Terms: “Close Contact” (October 21, 2020), https://www.cdc.gov/coronavirus/2019ncov/php/contact-tracing/contact-tracing-plan/appendix.html#contact; Centers for Disease Control and Prevention,

26

COVID-19 in a Correctional Facility Employee Following Multiple Brief Exposures to Persons with COVID-19— Vermont, July–August 2020, Morbidity and Mortality Weekly Report, (October 21, 2020),

27 https://www.cdc.gov/mmwr/volumes/69/wr/mm6943e1.htm?s_cid=mm6943e1_w.
3 Los Angeles Times, Tracking the coronavirus in Tulare County, (October 27, 2020),

28 https://www.latimes.com/projects/california-coronavirus-cases-tracking-outbreak/tulare-county/#trends

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1 United States have died from the disease.4 COVID-19 cases are again spiking across the country,

2 with cases reaching a peak in recent days.5 And the timeline for a widely available and accessible

3 vaccine remains an elusive guessing game.6

4

Most importantly, nearly eight months after the start of the pandemic, and two months

5 after the Court issued its TRO Order, Defendant continues to operate the Jails with deliberate

6 indifference to Plaintiffs’ and Provisional Class members’ health and safety. Defendant (1) has

7 still tested only one person in two of the three operational detention facilities and virtually no one

8 who is symptomatic; (2) ignores the increased risks of COVID-19 to members of the proposed

9 Medically Vulnerable Subclass; and (3) implements his purported social distancing measure in a

10 punitive manner that restricts incarcerated persons’ right to exercise by imposing dangerous

11 solitary-like restrictive housing conditions throughout the Jails.

12

A. Defendant Actively Invites a COVID-19 Outbreak by Refusing to Test

Appropriately

13

Eight months into the pandemic, the record is clear: Defendant has no testing policy in

14

place to identify incarcerated people infected with COVID-19 and isolate them, for their own

15

treatment and the protection of others. He still refuses to test anyone in two of the three Jail

16

facilities currently operating—which account for three quarters of the Jails’ total population. He

17

refuses to test the overwhelming majority of even symptomatic people, outside the context of new

18

intakes and known exposures (usually by staff). And the one policy he does have—a policy for

19

testing new intakes—is often abandoned in practice, giving COVID-19 yet another foothold into

20

the Jails. Yet, when confronted about Defendant’s refusal to protect incarcerated people from

21

COVID-19 through appropriate testing policies, Tulare County Sheriff’s Department (“TCSD”)

22

staff was content to point fingers at Wellpath and the Tulare County Health and Human Services

23

24
4 Centers for Disease Control and Prevention, Cases in the U.S., Coronavirus Disease 2019,
25 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.

26

5 Will Stone, U.S. Coronavirus Cases Surpass Summer Peak And Are Climbing Higher Fast, NPR (Oct. 27, 2020), https://www.npr.org/sections/health-shots/2020/10/27/928062773/u-s-cases-surpass-summer-peak-and-are-climbing-

27 higher-fast
6 Science, ‘There’s only one chance to do this right’—FDA panel wrestles with COVID-19 vaccine issues, (October

28 23, 2020), https://www.sciencemag.org/news/2020/10/there-s-only-one-chance-do-right-fda-panel-wrestles-covid-19-

vaccine-issues

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1 Agency (“HHSA”).

2

Dr. Alla Liberstein, Medical Director of the Tulare County Jails, summed up Defendant’s

3 approach to testing best: When asked what the Jails rely on to determine whether there is a

4 potential outbreak, Dr. Liberstein testified: “Nobody knows. Who knows? Do you know? Do I

5 know? Nobody knows.” Ex. 1 ¶ 14, Ex. I (Liberstein Depo.) at 157:5–6.

6

1. Defendant Still Refuses to Test Anyone in Two of Three Operating Jails

7

Eight months into the pandemic, Defendant has still tested only one person at two of the

8 three jail facilities—Bob Wiley and South County—whose combined populations account for

9 nearly 77% of the Jails’ total population. Ex. 1 ¶¶ 7–9, Exs. C–D. Defendant’s own testing data,

10 provided to the Court, reflect that only one person was tested at either Bob Wiley or South County

11 since March 2020. ECF No. 29-1 at 21. And according to data reported by the California Board of

12 State and Community Corrections (“BSCC”), between July 19, 2020, and October 31, 2020,

13 Defendant tested zero people for COVID-19 at Bob Wiley and South County. Ex. 1 ¶ 14, Ex. I

14 (Liberstein Depo.) at 118. Those two facilities have housed between 700 and 950 people at any

15 given time during the pandemic. Given the transient nature of the Jails’ population, thousands of

16 people have been housed at Bob Wiley and South County and likely hundreds have gone

17 undiagnosed for COVD-19. Ex. 3 (Supp. Meyer Decl.) ¶¶ 10, 12.

18

2. Defendant Still Refuses to Test Symptomatic People

19

Despite scientific consensus that symptomatic persons should be tested when they display

20 just one symptom of COVID-19, the record shows that even in Adult Pre-Trial—the one facility

21 where testing takes place—Defendant refuses to test individuals unless they display multiple

22 symptoms of COVID-19. Making matters worse, Defendant often refuses to test even these

23 symptomatic individuals for COVID-19.

24

Lt. Cory Jones, the Lieutenant in charge of Adult Pre-Trial and intake,7 testified that

25 anyone who reports COVID-19 symptoms “[a]nywhere in the facilities” is eligible for a COVID-

26

27
7 Lt. Jones testified that he was disciplined just four to five months ago by TSCD, but Plaintiffs’ counsel were unable
28 to determine whether the discipline was related to COVID-19: Defense counsel instructed the witness not to answer
the reasons for the discipline. Ex. 1 ¶ 12, Ex. G (Jones Depo.) at 21.

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1 19 test. Ex. 1 ¶ 12, Ex. G (Jones Depo.) at 62. Similarly, the Jails’ Medical Director testified that it

2 is her medical opinion that a person who shows any COVID-19 symptoms should be tested: “If

3 the patient . . . is symptomatic, patient has to be tested.” Ex. 1 ¶ 14, Ex. I (Liberstein Depo.) at

4 39:23–25.8 But that testimony is directly controverted by Defendant’s own testing data and the

5 experiences of incarcerated people in the Jails: The data establish that Defendant has failed to test

6 even those who show symptoms of COVID-19 and that only 18 individuals with symptoms were

7 tested over 8 months (independent of outbreaks or observations).

8

According to the Jails’ “Coronavirus Supplemental Screening” form—which screens

9 incarcerated people for referral to a medical provider to be evaluated for a COVID-19 test, not for

10 the test itself—a person must be experiencing multiple symptoms to obtain a referral. Ex. 3 (Supp.

11 Meyer Decl.) ¶ 15. The form, by requiring multiple symptoms, sets an unreasonably high bar to

12 obtain a test, which is not based on any existing scientific evidence or on any public health

13 guidance. Id. And even when the screening form results in a referral to a Wellpath medical

14 provider, the provider declines to test symptomatic people 95% of the time. Id. ¶ 14.

15

As one example, on several occasions, Francisco Arreola, a 57-year old man with diabetes,

16 asthma, and hypertension, who is currently incarcerated at Bob Wiley, was not tested despite

17 reporting to the Jails’ medical staff that he was experiencing multiple symptoms consistent with

18 COVID-19 (difficulty breathing, cough, chest pain, headaches, and fatigue). Ex. 7 (Arreola Decl.)

19 ¶¶ 5–10. It was not until Mr. Arreola was hospitalized on October 7, 2020, after passing out, that

20 he was tested for COVID-19. Id. ¶ 15. The doctor told him that his “medical conditions [were]

21 incredibly bad.” Id. Rigoberto Benavidez, currently incarcerated in Adult Pre-Trial, similarly

22 requested—more than once—that Defendant test him after he reported a COVID-19 symptom—a

23 severe cough. Ex. 9 (Benavidez Decl.) ¶¶ 10–15. He was never given a test. Id. Instead, he was

24 prescribed allergy medication despite never having had allergies before and despite having no

25

26 8 Dr. Liberstein was asked in her deposition: “And if the patient exhibits any of the symptoms that the CDC
recognizes in its guidelines are symptoms of coronavirus, then it would be your medical judgment that that person has
27 to be tested?” Her answer: “Yes.” See Ex. 1 ¶ 14, Ex. I (Liberstein Depo.) at 40:9–14. Similarly, Capt. Macias
testified, “If an inmate shows symptoms or has issues, they will be tested. Ex. 1 ¶ 15, Ex. J (Macias Depo.) at 8:21-22.
28 While Dr. Liberstein’s medical judgment as to who should be tested for COVID-19 is consistent with CDC guidelines
and Dr. Jaimie Meyer, that is sadly not TCSD’s practice in the Jails.

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1 allergy symptoms apart from a cough. Id. ¶ 12.

2

On September 5, 2020, after an in-person court appearance during which he was

3 transported in several crowded spaces, Plaintiff Samuel Camposeco, who is incarcerated in Bob

4 Wiley, started to experience multiple COVID-19 symptoms (fever, sore throat, trouble breathing,

5 chest pain, cough, and chills). Ex. 10 (Camposeco Decl.) ¶¶ 11–15. After repeated requests to see

6 a medical provider and receive a test, the nurse and a deputy told Camposeco that his symptoms

7 were likely the result of wildfires. Id. ¶ 15. The nurse also told him that she did not know how

8 testing worked in the Jails and had never tested anyone before. Id. It was not until October 6,

9 2020—a month after Camposeco first reported symptoms—that he saw a medical provider, who

10 decided Camposeco did not need a test despite displaying clear symptoms of COVID-19. Id. ¶ 17;

11 Ex. 3 (Supp. Meyer Decl.) ¶ 16. What’s more, the provider told him that the Jails were not testing

12 many people because the tests were not accurate and often led to false positives. Id.

13

Since this Court issued its TRO, several other incarcerated people, including Plaintiff

14 Adam Ibarra, have been refused a COVID-19 test despite requesting one and reporting COVID-19

15 symptoms. Ex. 14 (Hounihan Decl.) ¶¶ 5–6; Ex. 15 (Ibarra Decl.) ¶¶ 11–12; Ex. 17 (Kaupelis

16 Decl.) ¶ 7; Ex. 24 (Moreno, S. Decl.) ¶ 8; Ex. 31 (Stephens Decl.) ¶¶ 9–12; Ex. 33 (Vargas Decl.)

17 ¶¶ 7–8; Ex. 34 (Watson Decl.) ¶ 11.

18

As described above, Defendant tests only individuals housed in Adult Pre-Trial and the

19 overwhelming majority of those tests are administered to new intakes. Out of nearly 1,500 tests

20 administered since March 2020, only 18—just 1.2%—were administered because a person

21 reported COVID-19 symptoms. Ex. 3 (Supp. Meyer Decl.) ¶ 13. Nor do all of those tests represent

22 a unique case: Out of the 334 people in Adult Pre-Trial who reported COVID-19 symptoms, only

23 16—about 5%—were administered a test. Id. ¶ 12. Put differently, outside of intake and known

24 exposures, Defendant refuses to test symptomatic people 95% of the time. Id. ¶ 14.

25

In the few instances in which Defendant did test symptomatic people, the test positivity

26 rate was alarmingly high: 56% of persons tested were positive for COVID-19. Id. ¶ 12. Applying

27 the 56% positivity rate to the number of people who reported COVID-19 symptoms (334 people)

28 suggests that at least 187 people in Adult Pre-Trial went undiagnosed because of Defendant’s

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1 inadequate screening and testing procedures. And there is no way of knowing precisely how many

2 people have gone undiagnosed at the other two Jails—Bob Wiley and South County—which

3 account for more than three quarters of the Jails’ population.

4

3. Defendant Still Refuses to Set an Outbreak Prevention Testing Policy

5

The record is unequivocal: Defendant simply does not have a policy in place for testing

6 incarcerated people—making it impossible to identify those who are infected and isolate them

7 from the rest of the population. Experts agree that “a comprehensive and well-implemented testing

8 strategy is critical for COVID-19 prevention and control.” Ex. 3 (Supp. Meyer Decl.) ¶¶ 4, 11, 22,

9 28, 31. Where, as here, a congregate facility is otherwise unable to identify and segregate

10 individuals infected with COVID-19 from the rest of the population, broad-based testing strategies

11 are required. Ex. 3 (Supp. Meyer Decl.) ¶ 31.

12

But nearly eight months into the COVID-19 pandemic and two months after this Court’s

13 TRO, neither TCSD nor its medical provider have a COVID-19 testing policy to identify and

14 isolate positive cases of COVID-19 among the general population. Indeed, trying to understand

15 Defendant’s current testing practices, to the extent they exist, is an exercise in futility. The record

16 demonstrates that lead officials are unaware of basic information about COVID-19, including

17 CDC guidance on COVID-19. And when asked about the testing policy, Defendant sought to

18 avoid accountability by deferring to his medical provider, Wellpath, on matters of testing; yet

19 Wellpath’s staff deferred to TSCD, telling us they were just following orders.

20

Lt. Jones testified that the Jails’ testing policy “is a two-pronged approach” with oversight

21 split between TCSD and Wellpath, the Tulare County Jails’ contracted medical provider. Ex. 1

22 ¶ 12, Ex. G (Jones Depo.) at 57:18–22. Assistant Sheriff Cheri Lehner, the third-in-command

23 responsible for overseeing all of detentions, testified that the “medical people” are responsible for

24 disease response and prevention policies. Ex. 1 ¶ 13, Ex. H (Lehner Depo.) at 22–23, 30:9–16,

25 31:20–23, 132:1–9. Lehner could not answer even basic questions about the testing policy. See id.

26 at 37:23–38:6, 53:14–54:11, 84:7–86:9, 87:20–90:16, 96:23–97:3. She testified both that she is not

27 familiar with Wellpath’s testing policies and practices and that she has not tried to find out under

28 what circumstances an incarcerated person would be tested for COVID-19. Id.

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1

But, when we asked the so-called “medical people” about the testing policy, they displayed

2 an astonishing lack of basic knowledge about COVID-19, including lacking any understanding of

3 how to protect incarcerated people from contracting the virus via testing. When asked whether the

4 Jails had a testing policy with respect to COVID-19, Medical Director Dr. Liberstein testified

5 simply, “I don’t know.” Ex. 1 ¶ 14, Ex. I (Liberstein Depo.) at 39:4–7.

6

Lt. Jones also testified that “all testing requirements are left up to Wellpath and HHSA”

7 and that “[i]f the recommendation is to test, we test.” Ex. 1 ¶ 12, Ex. G (Jones Depo.) at 64:2–16.

8 But a representative from HHSA testified that HHSA’s role is not to “affirmatively analyze the

9 conditions of the jail and then develop policies for the Sheriff to implement,” but rather to provide

10 feedback to Wellpath and TCSO in response to questions. Ex. 1 ¶ 16, Ex. K (Mitchell Depo.) at

11 21:23-22:17.

12

Defendant has done no asymptomatic testing despite a scientific consensus that

13 asymptomatic people can spread the virus at rates as high as 45%. Ex. 3 (Supp. Meyer Decl.)

14 ¶¶ 21, 32. It is not controversial to state that symptomatic testing is necessary to contain or reduce

15 the transmission of COVID-19. Id. ¶ 32. Yet, despite clear scientific consensus on asymptomatic

16 spread, Dr. Liberstein—the Jails’ Medical Director—inexplicably testified: “There is no definite

17 proof that [an] asymptomatic person can transmit it or cannot transmit it. Therefore it doesn’t

18 really matter if he’s tested or not tested.” Ex. 1 ¶ 14, Ex. I (Liberstein Depo.) at 173:15–174:1.

19 When asked what the Jails rely on to determine whether there is a potential outbreak given that

20 they do not test symptomatic or asymptomatic people, Dr. Liberstein testified: “Nobody knows.

21 Who knows? Do you know? Do I know? Nobody knows.” Id. at 157:2–6.

22

When the test positivity rate in the Jails peaked at above 30% the week of June 20, 2020,

23 TCSD conducted only an additional 48 tests between June 25 and June 29, 2020. Ex. 3 (Supp.

24 Meyer Decl.) ¶ 7. At the time, the population in Adult Pre-Trial was about 300. Similarly, in

25 response to a confirmed positive case in early July, when the test positivity rate peaked at 19.2%,

26 TCSD conducted even fewer tests—5 tests the week starting on July 15 and 8 tests the week

27 starting on July 23. It is highly likely that positive COVID-19 infections in both the June and July

28 outbreaks were missed as a result of Defendant’s failure to test more. Id. A staff member—the

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1 Jails’ psychiatric registered nurse—also tested positive around mid-July, and had been in every

2 building in the Jails within the week preceding her diagnosis. See Ex. 1 ¶ 19, Ex. M. But as noted,

3 Defendant conducted no additional tests despite a positive among incarcerated people and a

4 known exposure in every facility. Without widespread testing and a strong outbreak prevention

5 plan going forward, infections will continue to be missed, and incarcerated people will be put at

6 unreasonable risk of contracting the virus.

7

The dangerous decision not to conduct widespread testing in the Jails after outbreaks is,

8 sadly, consistent with both Asst. Sheriff Lehner’s and Capt. Macias’s testimony that they had

9 never instructed Wellpath to conduct widespread testing or even considered it. Ex. 1 ¶ 13, Ex. H

10 (Lehner Depo.) at 107:22–108:6, 122:13–124:3; Ex. 1 ¶ 15, Ex. J (Macias Depo.) at 88:24-89:14.

11 Even more alarming, when it comes to ordering or even considering widespread testing, the Jails’

12 Medical Director does not believe “[she is] in the position to make such a determination and to

13 give such [ ] orders” and that she “[she] usually follow[s] what [she is] told rather than making

14 suggestions.” Ex. 1 ¶ 14, Ex. I (Liberstein Depo.) at 153:6–7. This is in contrast to Asst. Sheriff

15 Lehner’s testimony that disease response and prevention at the Jails is up to the “medical people.”

16 Ex. 1 ¶ 13, Ex. H (Lehner Depo.) at 30:9-19.

17

But if neither the Sheriff’s Department nor the Medical Director believes they have the

18 authority to order widespread testing in response to current or potential outbreaks, who can? The

19 Medical Director said it best: “Nobody knows.” Id. at 157:5. And it is incarcerated people who

20 suffer when Defendant fails to act.

21

4. Defendant Doesn’t Follow the One Testing Policy He Does Have,

Leaving the Jails Vulnerable to COVID-19 from New Intakes

22

Despite having an intake policy that, on paper, shows newly booked inmates are tested at

23

Day 1 and Day 14 of an observation period, in practice, there are multiple gaps in how the

24

“policy” is implemented that allow COVID-19 to gain a foothold in the Jails.

25

On September 9, 2020, Defendant submitted to the Court his “Coronavirus Prevention and

26

Protection” policy. ECF No. 28-1, Ex. A. The policy describes Defendant’s intake and observation

27

policy, which provides for testing at the end of a 14-day observation period where intakes are

28

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1 housed separately from the “General Population.” Id. at 3. The policy further states that newly

2 booked incarcerated people should be housed together with those who are booked within similar

3 timeframes. Id. at 4. And if newly booked individuals are housed together with those booked on

4 different days, the observation period should be extended for the longer-housed person. Id.

5

At the end of September, Defendant updated the intake process to include testing of new

6 intakes within 24-hours of booking. Ex. 1 ¶ 12, Ex. G (Jones Depo.) at 61:25–62:8. In the event

7 there is no room in the General Population, the updated policy allows people who have been tested

8 at the end of their 14-day observation period to be housed with a newly booked person who has

9 not yet been tested. Id. at 98. What’s more, Defendant houses tested new intakes in the quarantine

10 unit with untested new intakes, exposing people who have already been tested to asymptomatic

11 persons of unknown exposure to COVID-19. See ECF No. 28-1, Ex. A.

12

Incarcerated people’s accounts show that, in practice, Defendant does not follow even

13 these questionable policies. For instance, on September 15, 2020, Defendant moved 20 people out

14 of the observation unit into Rigoberto Benavidez’s General Population unit before they had

15 completed the 14-day observation or had been medically cleared. Ex. 9 (Benavidez Decl.) ¶ 22.

16 Similarly, on October 12, 2020, a person from the observation unit was placed in Benavidez’s

17 housing unit before the person got the results of a COVID-19 test. Id. ¶ 25.

18

That person was James Gonzalez. After being booked, Gonzalez was put in close

19 proximity to people with COVID-19 while in the infirmary. Ex. 12 (Gonzalez Decl.) ¶ 4. He

20 moved into the General Population on October 12, 2020—after being tested but before receiving

21 his results. Id. ¶¶ 5–6. A few days later, deputies pulled him out of his General Population unit

22 because he had tested positive. Id. ¶ 7.

23

After returning to Adult Pre-Trial from a court appearance on October 19, 2020,

24 Camposeco was placed in a holding cell with four other newly booked people, none of whom had

25 been tested. Ex. 10 (Camposeco Decl.) ¶ 10. He later developed COVID-19 symptoms, but was

26 repeatedly refused a test. Id. ¶¶ 10-17. Similarly, Destiny Lopez, who was booked on September

27 16, had four different cellmates during her intake quarantine. Ex. 18 (Lopez Decl.) ¶ 3. At the end

28 of a 20-day observation period, she was moved into a General Population unit at Bob Wiley

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1 without ever being tested. Id. ¶ 4.

2

Plaintiff Levi Johnson, who is Medically Vulnerable, was newly booked and placed in an

3 observation unit cell with someone who was on Day 10 of his 14-day observation period. Ex. 16

4 (Johnson Decl.) ¶ 11. Four days in, his cellmate was moved into a General Population unit.

5 Defendant did not extend the cellmate’s observation period, although the cellmate was exposed to

6 Johnson on Day 10 of the period. Id. During the remainder of Johnson’s 14-day observation, two

7 people were placed in and out of his cell. Id. ¶¶ 12–13. Johnson was moved into a General

8 Population unit in Bob Wiley without an extended observation period—contrary to TCSD’s

9 policy. Id. ¶ 15. These concerning failures demonstrate that the one testing policy Defendant has

10 put in place cannot stop the spread of COVID-19.

11

B. Defendant Doesn’t Protect the Medically Vulnerable

12

Despite the high risk posed by Defendant’s failure to implement any effective testing

13 policies, Defendant has failed to identify—much less take additional precautions to protect—

14 persons with comorbidities with COVID-19. When asked about these individuals, members of the

15 Sheriff’s Department sought to disclaim responsibility over their health and welfare by identifying

16 Wellpath as responsible.

17

The CDC and medical experts have identified people with certain underlying health

18 conditions and diseases as particularly vulnerable to severe illness from COVID-19 (the

19 “Medically Vulnerable”). See Ex. 4 (Harawa Decl.) ¶ 36. In general, incarcerated people are at a

20 higher risk of experiencing severe illness and death from COVID-19 than people of the same age,

21 gender, and race/ethnicity in the general community. Id. ¶ 35. Thus, incarcerated people who are

22 also Medicinally Vulnerable are at the highest risk of serious illness and death from COVID-19.

23 Id. ¶¶ 35-36.

24

Dr. Liberstein unfortunately missed that memo. When asked whether “COVID-19 presents

25 a substantial risk of serious harm to medically vulnerable people who are incarcerated in Tulare

26 County Jails,” she answered: “Any disease is potentially fatal . . . people do die from Corona,

27 people do die from diabetes, people die from high cholesterol . . . Flu is also [a] potentially fatal

28 disease.” Ex. 1 ¶ 14, Ex. I (Liberstein Depo.) at 169:17–170:16. That the Jails’ Medical Director,

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1 eight months into the pandemic, is still equating the risk of harm from COVID-19 to the flu,

2 especially as it relates to the Medically Vulnerable Subclass, is unconscionable.

3

Medical experts believe it is necessary for jails to put in place additional measures, beyond

4 those for the General Population, to protect the Medically Vulnerable Subclass from contracting

5 COVD-19. Ex. 4 (Harawa Decl.) ¶ 31-37. The first of these measures is to identify the Medically

6 Vulnerable at intake. Id. Again, TCSD falls short. Lt. Jones, who is in charge of the intake facility,

7 testified that neither TCSD nor Wellpath does anything to identify the Medically Vulnerable at

8 intake or otherwise. Ex. 1 ¶ 12, Ex. G (Jones Depo.) at 85:22–86:15, 92:2–15, 99:18–22.

9

While release from custody is the surest way to protect the Medically Vulnerable Subclass

10 from the increased risk of harm they face from COVID-19 while incarcerated, there are several

11 straightforward measures TCSD can and should take to protect the Medically Vulnerable Subclass

12 while incarcerated. Ex. 4 (Harawa Decl.) ¶¶ 37-38. These measures include housing the Medically

13 Vulnerable Subclass in single cells, monitoring and screening them by medical staff routinely, and

14 cohorting them (but only if TCSD staff implement strict anti-contamination procedures). Id. ¶ 37.

15 Yet Lt. Jones testified that TCSD has not taken any steps to specially protect Medically

16 Vulnerable people. Ex. 1 ¶ 12, Ex. G (Jones Depo.) at 88:2–22, 89:1–16. It is therefore no surprise

17 that Asst. Sheriff Lehner testified that she was “not sure” whether TCSD took any special

18 precautions to keep Medically Vulnerable people safe from contracting COVID-19. Ex. 1 ¶ 13,

19 Ex. H (Lehner Depo.) at 138:22–139:6.

20

Defendant has not even bothered to identify, much less specially attend to, all members of

21 the Medically Vulnerable Subclass. See Ex. 1 ¶ 15, Ex. J (Macias Depo.) at 109:4-8. Instead,

22 Defendant continues to house the Medically Vulnerable indiscriminately among the General

23 Population. TCSD has not disclosed how many Medically Vulnerable people are currently

24 incarcerated in the Jails (because TCSD itself does not know), but the number may be in the

25 hundreds.9 These individuals are at especially high risk, given Defendant’s failures to protect the

26

27 9 Defendant reports that the following incarcerated people have conditions that make them medically vulnerable: 31
have chronic lung disease or moderate to severe asthma, 2 are immunocompromised, 30 people have severe obesity,
28 46 people have diabetes, and 60 people have liver disease. See ECF 11-7 (Verner-Crist Decl.) ¶ 19, Ex. F at 1. These

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1 incarcerated population more broadly from COVID-19

2

C. Defendant Enforces Social Distancing with Solitary-Like Restrictive Housing

3

In response to this Court’s order to implement a social distancing policy, Defendant

4 implemented a policy so restrictive that it guarantees only three hours of out-of-cell time per

5 week—during which time incarcerated persons must shower, call their loved ones, call their

6 counsel, and conduct any other necessary out-of-cell activity.

7

Defendant has belatedly attempted to enforce social distancing. Ex. 11 (Cortez Decl.) ¶ 4.

8 But Defendant’s purported “social distancing” policy is more akin to punitive, solitary-type

9 confinement. Ex. 5 (Haney Decl.) ¶ 15, 30. People are kept in their six-by-nine, closet-like cells

10 for 23.5 hours a day or more. Ex. 9 (Benavidez Decl.) ¶ 3. Several housing units do not get any

11 out of cell time at all on Sundays. Id.; Ex. 6 (Alvidrez Decl.) ¶ 6; Ex. 35 (Williams Decl.) ¶ 4.

12 Defendant is not providing religious services at this time. See Ex. 1 ¶ 12, Ex. G (Jones Depo.) at

13 132–133. Some individuals have not been allowed fresh air outside of the facility in over a month.

14 Ex. 10 (Camposeco Decl.) ¶ 4; Ex. 15 (Ibarra Decl.) ¶ 5; Ex. 16 (Johnson Decl.) ¶ 6.

15

During their out of cell time—either 30 minutes per day or one hour every other day—

16 incarcerated people must take showers, call their family or attorney, go outside, and/or clean their

17 cells. Id. at 112. TCSD does not provide incarcerated people with phones, tablets, or TVs in their

18 cells so that they can spend their out of cell time on other activities. Id. at 112; Ex. 26 (Payan

19 Decl.) ¶ 9; Ex. 1 ¶ 12, Ex. G (Jones Depo.) at 130–132.

20

When Jose Ayala asked a deputy why they were being given so little time out of their cells,

21 the deputy responded that it was because people started complaining to the ACLU about COVID-

22 19.10 Ex. 8 (Ayala Decl.) ¶ 9. Jose Ayala, Adam Ibarra, and Drew Kaupelis have had to choose

23 between showering and calling their families. Ex. 8 (Ayala Decl.) ¶ 6; Ex. 15 (Ibarra Decl.) ¶ 7;

24 Ex. 17 (Kaupelis Decl.) ¶ 6. Others have had difficulty meeting with their lawyers. Ex. 9

25 (Benavidez Decl.) ¶ 9; Ex. 11 (Cortez Decl.) ¶ 5.

26

27

are, of course, not the only conditions that make someone Medically Vulnerable. See Harawa Decl. ¶ 36 (listing over 20 conditions that may make someone Medically Vulnerable to COVID-19).

28 10 Deputies also put Ayala on a 10-day lockdown when Ayala inadvertently tore a mask when attempting to clean it.
Ex. 8 (Ayala Decl.) ¶ 19. Deputies told him that he might be criminally prosecuted for destroying state property. Id.

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1

This punitive solitary-type confinement is causing severe physical and mental health

2 harms, including depression, anxiety, sleeplessness, violent outbursts, and suicidal thoughts. Ex. 6

3 (Alvidrez Decl.) ¶ 6–7; Ex. 8 (Ayala Decl.) ¶ 10; Ex. 9 (Benavidez Decl.) ¶ 5; Ex. 11 (Cortez

4 Decl.) ¶ 6; Ex. 20 (Lucero Decl.) ¶ ¶5–8; Ex. 24 (Moreno, S. Decl.) ¶ 6; Ex. 29 (Sanchez Decl.)

5 ¶ 8; Ex. 35 (Williams Decl.) ¶¶ 5–7; Ex. 33 (Vargas Decl.) ¶ 6; Ex. 34 (Watson Decl.) ¶¶ 7–8. One

6 person has even attempted to kill himself by throwing himself from the top tier of his unit. Ex. 8

7 (Ayala Decl.) ¶ 12. According to Dr. Craig Haney, a psychologist and expert in the effects of

8 solitary-type confinement on the mental health of incarcerated people who reviewed these

9 accounts, “[t]hese extreme solitary-type conditions of confinement are taking a significant toll on

10 the incarcerated population in general in the Tulare County Jails,” “psychological deterioration []

11 is occurring,” and the “worsening mental health is collectively affecting the atmosphere in the

12 housing units.” Ex. 5 (Haney Decl.) ¶¶ 23–24.

13

Defendant maintains that to ensure social distancing during out of cell time, he can only let

14 four people (and possibly eight) out at a time despite having a large yard and a dayroom each the

15 size of a basketball court and a half. Ex. 1 ¶ 12, Ex. G (Jones Depo) at 136:23–137:3. According

16 to Dr. Haney, these onerous lock-down procedures “are inappropriate, ill conceived, and counter-

17 productive for several reasons.” Ex. 5 (Haney Decl.) ¶ 29.

18 III. ARGUMENT

19

A preliminary injunction may issue if Plaintiffs show they are (1) likely to succeed on the

20 merits, (2) likely to suffer irreparable harm in the absence of injunctive relief, (3) the balance of

21 equities is in their favor, and (4) injunctive relief is in the public interest. See Winter v. Nat. Res.

22 Def. Council, 555 U.S. 7, 20 (2008). The Ninth Circuit employs a “sliding scale” approach to

23 Winter’s test. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011). Under

24 this approach, a stronger showing of one element may offset a weaker showing of another. Id. This

25 Court may issue a preliminary injunction if Plaintiffs raise at least “serious questions going to the

26 merits” and demonstrate that “the balance of hardships tips sharply” in Plaintiffs’ favor, as long as

27 Plaintiffs also satisfy the other Winter factors. Id.

28

In issuing a TRO, this Court has already determined that Plaintiffs are likely to prevail on

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1 their claim that Defendant’s Jails are constitutionally deficient. Unfortunately, Defendant has done

2 little in the intervening months to remedy those constitutional violations, and emergency relief is

3 once again necessary for three reasons. First, Plaintiffs are likely to succeed on the merits of their

4 claims that Defendant exposed them to a serious and unreasonable risk of contracting the

5 potentially deadly COVID-19 virus by failing to implement an effective testing policy and failing

6 to identify and attend to the increased risks of the proposed Medically Vulnerable Subclass, which

7 constitutes deliberate indifference in violation of the U.S. Constitution. Defendant’s punitive

8 “social distancing” policy, enacted in response to this Court’s TRO, also infringes on Plaintiffs’

9 and Provisional Class members’ right to exercise. Second, as this Court acknowledged in its TRO,

10 because Plaintiffs face severe risks to their health and allege constitutional violations, they are

11 likely to suffer irreparable injury absent a court order. Finally, the balance of equities and public

12 interest weigh in Plaintiffs’ favor given that Defendant cannot maintain an interest in violating

13 Plaintiffs’ and class members’ rights.

14

A. Plaintiffs and the Proposed Class Are Likely to Succeed on the Merits

15

Plaintiffs are likely to succeed on the merits of their Eighth and Fourteenth Amendment

16 claims. The Constitution guarantees “humane conditions of confinement,” meaning jails must

17 “take reasonable measures to guarantee the safety of,” incarcerated people, including providing

18 adequate medical care. See Farmer, 511 U.S. at 832; accord Estelle, 429 U.S. at 103. Failing to

19 attend to an incarcerated individual’s medical needs is “inconsistent with contemporary standards

20 of decency” and, as such, “[r]egardless of how evidenced, deliberate indifference to a prisoner’s

21 serious illness or injury states a cause of action under § 1983.” Estelle, 429 U.S. at 103–05.

22

Incarcerated people need not wait to become sick before invoking the Constitution’s

23 protections; rather, exposing an incarcerated person to a communicable disease or a condition that

24 may cause serious illness constitutes deliberate indifference. See ECF 26 (TRO Order) at 32 n.14

25 (citing cases); see also Helling v. McKinney, 509 U.S. 25, 33 (1993) (prison officials cannot be

26 deliberately indifferent to “a condition of confinement that is sure or very likely to cause serious

27 illness and needless suffering,” including the possibility of contracting a communicable disease).

28 Correctional officials act with deliberate indifference when they “ignore a condition of

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1 confinement that is sure or very likely to cause serious illness and needless suffering the next week

2 or month or year,” even when that risk has not yet materialized. Id. “It would be odd to deny an

3 injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on

4 the ground that nothing yet had happened to them. . . . [A] remedy for unsafe conditions need not

5 await a tragic event.” Id. (emphasis added).

6

Correctional officials violate a post-conviction prisoner’s Eighth Amendment right to

7 humane conditions of confinement by (1) incarcerating an individual “under conditions posing a

8 substantial risk of serious harm” (an objective test) and (2) “know[ing] of and disregard[ing] an

9 excessive risk to inmate health or safety” (a subjective test). Farmer, 511 U.S. at 834, 837. And,

10 as this Court has recognized, prison officials violate a pre-trial detainee’s rights under the

11 Fourteenth Amendment by proof of only objective deliberate indifference. See ECF 26 (TRO

12 Order) at 31 (citing Gordon v. County of Orange, 888 F.3d 1118, 1124 (9th Cir. 2018)). As

13 Plaintiffs have previously explained, because Defendant mixes pre-trial detainees together with

14 individuals being held post-conviction, it would be impossible to order separate relief for pretrial

15 and post-conviction prisoners. ECF No. 11 (TRO Order) at 14. Thus, the Court need only look to

16 whether the Fourteenth Amendment’s objective deliberate indifference standard is satisfied. Here,

17 however, Defendant’s conduct readily satisfies both tests because he has intentionally refused to

18 implement an adequate testing policy and to identify and protect Medically Vulnerable persons.

19

1. Defendant’s Continued Refusal to Test the Vast Majority of Detainees

Is Deliberately Indifferent

20

Defendant’s failure to apply his own intake policies and provide testing to people who are

21

symptomatic for COVID-19 has created a dangerous reality: COVID-19 can enter the Jails

22

through leaks in the intake process and from staff who live and work in the community. When the

23

virus inevitably enters the Jails, Defendant’s refusal to test allows the virus to transmit itself

24

undetected—until it’s too late. Because Defendant has failed to plan for any outbreak or test

25

widely when outbreaks have occurred, this latent danger has the potential to turn into a catastrophe

26

for both incarcerated persons and the surrounding community affected by any outbreak.

27

(a) Defendant is Objectively Deliberately Indifferent to the Serious Risk

28

that Incarcerated People Will Suffer Serious Illness from COVID-19

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1

As this Court stated in the TRO, Plaintiffs are likely to succeed on their claim that officials

2 violate the Constitution when they expose healthy incarcerated people to people infected with a

3 contagious disease. See ECF 26 (TRO Order) at 17-19; Duvall v. Dallas Cnty., Tex., 631 F.3d 203,

4 208 (5th Cir. 2011) (upholding a finding of unconstitutional conditions of confinement where

5 officials continued to house inmates in a facility despite the existence of an extensive MRSA

6 outbreak); Lareau v. Manson, 651 F.2d 96, 98–99 (2d Cir. 1981) (upholding finding of

7 unconstitutional conditions of confinement where healthy prisoners were housed with physically

8 ill cellmates).

9

In the case of COVID-19, Defendant’s refusal to implement an effective testing policy

10 violates incarcerated people’s right to be free from a serious risk of medical harm. To prevent

11 healthy people from being exposed to the virus, jail officials first have to figure out who is

12 infected—an inquiry made more difficult by the fact of asymptomatic spread. To identify the

13 infected, experts recommend a comprehensive testing strategy that includes implementing a broad-

14 based testing program, followed by testing at intake, testing symptomatic people, and testing staff.

15 Ex. 3 (Supp. Meyer Decl.) ¶¶ 4, 11, 21–22, 27–28, 31. Tulare County Jails have either been

16 woefully inadequate in implementing each of these strategies or have not implemented them at all.

17

The Tulare County Jails do not exist in a vacuum: They are in a community where

18 COVID-19 runs rampant. Ex. 3 (Supp. Meyer Decl.) ¶ 12; Ex. 5 (Haney Decl.) ¶ 7. And there are

19 numerous paths for COVID-19 to enter the Jails from that surrounding community. One obvious

20 point of entry for the virus is through people newly booked in the Jails. Yet Defendant fails to

21 consistently apply his own intake and observation policies, resulting in people being transferred

22 into the Jails’ General Population after being potentially exposed to COVID-19. See Ex. 3 (Supp.

23 Meyer Decl.) ¶¶ 23–25; Ex. 10 (Camposeco Decl.) ¶¶ 9–10; Ex, 12 (Gonzalez Decl.) ¶¶ 4–7; Ex.

24 16 (Johnson Decl.) ¶¶ 11–15; Ex. 18 (Lopez Decl.) ¶3. Another obvious point of entry for the

25 virus is through incarcerated persons’ contact with staff. Contact with staff has already resulted in

26 two outbreaks in the Jails in June and July. Ex. 1 ¶ 15, Ex. J (Macias Depo.) at 81:10–24. Yet

27 Defendant does not mandate that staff be tested for COVID-19. Ex. 1 ¶ 13, Ex. H (Lehner Depo.)

28 at 114:1–8. And as incarcerated people have complained and as at least one Tulare County

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1 Sherrif’s Department official has personally admitted, TCSD officials and Wellpath staff do not

2 always wear masks.11 See Ex. 22 (Mendez Decl.) ¶ 3; Ex. 31 (Stephens Decl.) ¶ 13.

3

Defendant has also consistently failed to test symptomatic people: Even in Adult Pre-Trial,

4 only 6% of individuals presenting with symptoms of COVID-19 have been tested, despite a 56%

5 test positivity rate among those actually tested. Ex. 3 (Supp. Meyer Decl.) ¶¶ 12–14. To the extent

6 that Defendant has implemented a testing policy for symptomatic people (and, as described above,

7 it is far from clear that he has), it is out of step with expert recommendations and, as a result, very

8 few clearly symptomatic persons have been tested. Ex. 3 (Supp. Meyer Decl.) ¶¶ 11–12, 15.

9

Finally, Defendant lacks any coherent outbreak control plan that includes testing and has

10 already failed to comprehensively test when there have been COVID-19 outbreaks at the Jails.

11 And although the dangers of asymptomatic transmission of COVID-19 are well known,

12 Defendant’s own data show that the Jails have tested only one person at either Bob Wiley or South

13 County—whose residents make up a combined two-thirds of the total Jails’ population—since the

14 pandemic began. ECF No. 29-1 at 21. In other words, Defendant has no idea whether or not the

15 vast majority of the people incarcerated in his Jails are positive for COVID-19. Ex. 3 (Supp.

16 Meyer Decl.) ¶¶ 31–32. As a result, he has no way to isolate those who are currently infectious

17 from the rest of the population, putting all residents of the Jails, staff, and the surrounding

18 community at increased risk of contracting the potentially fatal disease. Id. ¶ 28.

19

“[I]n order to satisfy the objective prong, it is enough for the inmate to demonstrate that he

20 was exposed to a substantial risk of some range of serious harms.” Lemire v. Cal. Dep’t of Corr. &

21 Rehab., 726 F.3d 1062, 1076 (9th Cir. 2013). Plaintiffs readily meet this standard: Defendant fails

22 to enforce his own intake and observation policy and fails to test staff, creating direct paths for

23 COVID-19 to enter the Jails and cause a substantial risk of serious harm to incarcerated people.

24 And his testing policies mean that Defendant is asleep at the wheel, with absolutely no way of

25 knowing whether COVID-19 has entered the Jails. By failing to implement an effective or

26 comprehensive testing plan, Defendant has created conditions that virtually assure not only that an

27

28 11 On October 30, 2020, Captain Gabriel Macias testified that the first time that he had ever worn a mask at work was
“last week.” Ex. 1¶ 15, Ex. J (Macias Depo) at 66:9-13.

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1 outbreak in the Jails will eventually occur, but also that it will go undetected until it is too late.

2 Defendant’s lackadaisical approach to testing has already exposed incarcerated people to a

3 substantial risk of serious harm from COVID-19. See Morales Feliciano v. Rossello Gonzalez, 13

4 F.Supp.2d 151, 208 (D.P.R. 1998) (the failure to “fully screen incoming inmates for infectious

5 diseases such as tuberculosis” constituted deliberate indifference); DeGidio v. Pung, 920 F.2d 525,

6 530 (8th Cir. 1990) (affirming a finding of deliberate indifference based on a prison’s “lack of

7 general awareness of the potential threat of tuberculosis and the lack of guidance from the health

8 services administrators,” which “caused delayed diagnoses of active cases and inadequate

9 responses when active cases were discovered,” including due to inadequate contact tracing).

10

(b) Defendant Is Well Aware of the Risk of COVID-19 to Incarcerated

People and Has Chosen to Consciously Disregard It

11

“[T]he seriousness of the threat posed by COVID-19—and the particular vulnerability of

12

elderly individuals as well as those with certain preexisting medical conditions—are so well

13

known that it would be implausible to suggest that prison officials are unaware of this risk.”

14

Martinez-Brooks v. Easter, No. 3:20-cv-00569, 2020 WL 2405350, at *21 (D. Conn. May 12,

15

2020); see also Farmer, 511 U.S. at 842 (“[A] factfinder may conclude that a prison official knew

16

of a substantial risk from the very fact that the risk was obvious.”). TCSD officials are, of course,

17

aware of the risk: In their own personal lives, these TCSD officials responded to the pandemic by

18

adopting social distancing measures and wearing masks. Ex. 1 ¶ 13, Ex. G (Jones Depo.) at 38:1–

19

41:17; Ex. 1 ¶ 13, Ex. H (Lehner Depo.) at 40:12–42:24; Ex. J (Macias Depo.) at 57:14-61:10.

20

Wellpath’s Medical Director testified that she was so concerned that she would contract COVID-

21

19 in the Jails and give it to a Medically Vulnerable family member that she asked for an

22

accommodation so that she would not have to work out of the Adult Pre-Trial facility. Ex. 1 ¶ 14,

23

Ex. I (Liberstein Depo.) at 70:6–12, 147:4–9.

24

A fair review of the record shows that Jails officials knew of the risks posed by their own

25

policies and chose to disregard them. As described above, eight months into a pandemic, not a

26

single witness for TCSD could articulate a coherent understanding of TCSD’s own testing policy,

27

because no such policy exists. E.g. Ex. 1 ¶ 13, Ex. H (Lehner Depo.) at 37:23 to 38:6, 53:14 to

28

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1 54:11, 84:7 to 86:9, 87:20 to 90:16, 96:23-25; see also supra at II.A.3. And it is clear why: The

2 officials who provide “oversight” at TCSD lack any interest in either setting policies or overseeing

3 their medical service provider, Wellpath, in carrying those policies out. They have instead

4 attempted to shift the burden of protecting incarcerated individuals’ health and safety entirely to

5 Wellpath, who has similarly disregarded the known risks posed by their own policies.

6

To take just one example: Part of the reason that so few symptomatic incarcerated people

7 have received tests is because of Wellpath’s facially inadequate screening form, which requires

8 multiple symptoms before an incarcerated person can even be referred to a medical provider to be

9 evaluated for a test. If it sounds convoluted, that’s because it is. The requirement that a person

10 have multiple—rather than one—symptoms, and undergo multiple screenings, lacks a basis in

11 science or public health guidance. Ex. 3 (Supp. Meyer Decl.) ¶ 15. It also goes against the medical

12 advice of Wellpath’s own doctors. As described above, Dr. Liberstein, Wellpath’s Medical

13 Director and the sole doctor in the Tulare County Jails, testified that in her medical opinion a

14 person with only one symptom of COVID-19 should be tested. Ex. 1 ¶ 14, Ex. I (Liberstein Depo.)

15 at 39:23–40:19. She admitted that, according to the screening criteria, someone with a 100.4

16 degree fever would not be referred to a provider for testing, and testified merely that she would

17 “usually” be notified anyway of such a result because “everybody [is] afraid of COVID.” Id. at

18 99:16–100:5. But despite this clear awareness that the screening form is inadequate, Wellpath’s

19 Medical Director also testified that there has been no recent consideration of updating the form. Id.

20 at 101:3–16. The system is broken, and neither Wellpath nor TCSD can be bothered to fix it.

21

Defendant claims to be relying on the “medical people” to make decisions regarding

22 testing. See Ex. 1 ¶ 13, Ex. H (Lehner Depo.) at 30:14–31:23. But Defendant has never taken any

23 interest in what Wellpath’s policies are and whether they’re working. See Ex. 1 ¶ 13, Ex. H

24 (Lehner Depo.) at 32:9-11. Whether Wellpath or Defendant is causing Plaintiffs’ exposure to

25 COVID-19, Plaintiffs can show deliberate indifference. Estelle, 429 U.S. at 104–05 (deliberate

26 indifference by prison doctors constitutes deliberate indifference).

27

As another example, there has never been any kind of widespread testing in the Jails. As

28 described above, the Jails experienced an outbreak in late June and early July. Not long after, the

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1 Tulare County Superior Court wrote a letter to Defendant, again asking Defendant to conduct a

2 one-time test of all incarcerated people in Tulare County. See Compl. Ex. 1 at 50, 52 (Letter from

3 Hon. Alldredge) at 1. Defendant refused to conduct widespread testing. Id. at 3.

4

Defendant’s failure either to supervise its medical team who are allegedly responsible for

5 testing, coupled with the obvious nature of the risk of COVID-19 and the fact that Defendant

6 failed to conduct widespread testing in the midst of an outbreak even when specifically asked to

7 do so, constitute subjective deliberate indifference.

8

At the TRO hearing, the Court expressed skepticism “that any tests [were] being

9 performed beyond those for new intakes and under observation.” ECF 26 (TRO Order) at 13. The

10 Court ordered Defendant to provide a summary of his testing efforts. Unfortunately, Defendant’s

11 own data and the Jails’ Medical Director’s testimony now confirm that Defendant tests virtually

12 no one with COVID-19 symptoms. As such, Defendant is willfully exposing incarcerated people

13 to COVID-19, putting them at substantial risk of severe illness and potential death from the virus.

14

To remedy the harm already caused by Defendant’s ongoing and persistent failure to

15 provide adequate testing within the Tulare County Jails, Defendant must conduct a one-time test

16 of all incarcerated people in the Jail. Defendant must also adopt constitutionally adequate policies

17 for testing symptomatic people and identifying and preventing outbreaks. Until Defendant takes

18 these measures, Defendant is willfully exposing incarcerated people to COVID-19, putting them at

19 substantial risk of severe illness and potential death from the virus.

20

2. Defendant Acts with Deliberate Indifference by Failing to Identify and

Protect Medically Vulnerable Individuals Who Face a Substantial,

21

Increased Risk of Harm

22

Defendant has admitted to doing nothing to identify—much less to protect—all members

23 of the Medically Vulnerable Subclass, who face substantial and increased risk of significant harm

24 from COVID-19. By knowingly failing to take any additional precautions for individuals who face

25 an increased risk of potentially lethal harm, Defendant has acted with deliberate indifference.

26

(a) Defendant is Objectively Indifferent to the Particular Medical Needs

of Medically Vulnerable Persons

27

This Court already has held that Plaintiffs are likely to succeed on their claims that

28

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1 Defendant’s failure to implement an effective testing plan and social distancing policy constitutes

2 objective deliberate indifference to the known and obvious risk of spreading COVID-19. See ECF

3 26 (TRO Order) at 33, 35. In other words, Defendant is not providing humane conditions that

4 guard against the risk of exposure to COVID-19 for any incarcerated individual in the Jails. See

5 Helling, 509 U.S. at 35 (objective prong required proof that inmate was being exposed to

6 unreasonably high levels of environmental tobacco smoke).

7

Defendant has similarly failed to take any precautions to mitigate the substantial and

8 increased risk of serious harm faced by members of the Medically Vulnerable Subclass. As the

9 CDC, medical experts, and courts recognize, individuals with certain pre-existing conditions have

10 a substantial and increased risk of serious illness if they contract COVID-19. See Ex. 4 (Harawa

11 Decl.) ¶¶ 29–34; see Martinez-Brooks, 459 F. Supp. 3d at 440 (“It is also undisputed—and,

12 indeed, by now common knowledge—that COVID-19 is a highly dangerous disease that poses a

13 significant risk of severe illness and death, particularly for members of the Medically Vulnerable

14 Subclass.”) (emphasis added). The CDC and medical experts have identified 20 conditions, such

15 as diabetes and obesity, that make someone particularly vulnerable to severe illness and death

16 from COVID-19. See Ex. 4 (Harawa Decl.) ¶ 36-37.

17

As a society, we recognize that individuals with certain preexisting conditions face an

18 increased risk of serious harm and, as such, we should take extra precautions consistent with their

19 risk level. See Helling, 509 U.S. at 36 (objective prong requires proof that the complained-of risk

20 “is not one that today’s society chooses to tolerate”). For instance, since March 2020, we have

21 closed nursing homes to outside visitors and offered special shopping hours for those at increased

22 risk of COVID-19, all in recognition that the elderly and sick need to take extra precautions during

23 the pandemic. See Ex. 4 (Harawa Decl.) ¶ 37. Individuals in detention facilities should be treated

24 no differently. As medical expert Dr. Harawa explains, “[c]orrectional facilities should put in

25 place additional measures to reduce the risk of transmission among the medically vulnerable

26 because detainees, in general, have an increased risk of death, severe illness, and long-term

27 complications related to COVID-19.” Id. ¶ 31. Her recommendations include, among other things,

28 affirmatively monitoring Medically Vulnerable persons for the virus on a routine basis. Id.

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1

Courts, too, have recognized that Medically Vulnerable incarcerated persons are entitled to

2 additional protections in light of with their increased risk levels. See Martinez-Brooks, 459 F.

3 Supp. 3d at 442-43 (inadequate implementation of protective measures for medically vulnerable

4 individuals qualified as deliberate indifference under the Eighth Amendment); Torres v. Milusnic,

5 No. CV 20-4450-CBM-PVC(x), 2020 WL 4197285, at *16 (C.D. Cal. July 14, 2020) (similar);

6 Alcantara v. Archambeault, No. 20CV0756 DMS (AHG), 2020 WL 2315777, at *9 (S.D. Cal.

7 May 1, 2020) (medically vulnerable immigration detainees’ confinement was excessive in relation

8 to its purpose). This Court should thus find that Plaintiffs are likely to succeed on their claim that

9 Defendant’s failure adequately to respond to the increased risk of severe illness and possible death

10 for Medically Vulnerable persons constitutes objective deliberate indifference.

11

(b) Defendant Has Acted with Subjective Deliberate Indifference by

Knowing of And Disregarding a Substantial, Increased Risk of

12

Harm to Medically Vulnerable Persons

13

Despite knowing that Medically Vulnerable individuals in his Jails are at increased risk of

14 severe illness or death if they contract COVID-19, Capt. Macias, who oversees all the TCSD

15 detention facilities, testified that Defendant has failed to take precautions to mitigate the increased

16 risk of harm posed to those individuals. Ex. 1 ¶ 15, Ex. J (Macias Depo.) at 109:4-8. Indeed,

17 Defendant has failed even to identify which incarcerated individuals are Medically Vulnerable. Ex.

18 1 ¶ 12, Ex. G (Jones Depo.) at 85, 92, 99. Plaintiffs are thus likely to succeed on their claim that

19 Defendant knew of and disregarded the substantial, increased risk of harm to members of the

20 Medically Vulnerable Subclass.

21

Both Asst. Sherriff Lehner, who is the third-in-command at the Jails, and Lt. Jones, who is

22 responsible for overseeing the Adult Pre-Trial Detention Center including all intakes, admitted

23 that certain preexisting conditions increase the risk of suffering illness from COVID-19. They had

24 even read the CDC guidelines describing what makes someone particularly vulnerable to COVID-

25 19. See Ex. 1 ¶ 12, Ex. G (Jones Depo.) at 84:6-25 to 85:1-15 (testifying to having reviewed the

26 CDC guidelines that describe what makes someone particularly vulnerable to COVID-19 and

27 providing examples like obesity, high blood pressure, diabetes, reduced lung function, and age as

28 some of the comorbidities); Ex. 1 ¶ 13, Ex. H (Lehner Depo.) at 128:13-25 to 129:1-6 (similar);

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1 see also Ex. 1 ¶ 14, Ex. I (Liberstein Depo.) at 160:8–21 (similar).

2

Despite knowing that particular conditions predispose individuals to an increased risk of

3 COVID-19 and despite knowing through this Court’s September 2, 2020 TRO that TCSD was

4 failing to comply with its constitutional obligations to protect individuals in its Jails against

5 COVID-19, Lt. Jones admitted that the Sheriff has not taken any steps even to identify people

6 already incarcerated or just entering the Jails who are Medically Vulnerable to COVID-19. See Ex.

7 1 ¶ 12, Ex. G (Jones Depo.) at 85:22–86:15, 92–95, 99:18–22.12

8

Consistent with Defendant’s favored response, Lt. Jones tried to shift the burden to protect

9 Medically Vulnerable persons’ health and safety over to Wellpath, saying it was responsible for

10 identifying and caring for Medically Vulnerable persons. See Ex. 1 ¶ 12, Ex. G (Jones Depo.) at

11 92:2–8. But the Supreme Court has made clear that deliberate indifference to the serious medical

12 needs of incarcerated individuals is unconstitutional “[r]egardless of how evidenced.” Estelle, 429

13 U.S. at 104–05. There is a violation “whether the indifference is manifested by prison doctors in

14 their response to the prisoner’s needs or by prison guards in intentionally denying or delaying

15 access to medical care or intentionally interfering with the treatment once prescribed.” Id. In short,

16 Defendant’s attempt to pass the buck to Wellpath not only fails to relieve him of his duty to

17 provide adequately preventative care to Medically Vulnerable persons, but also reinforces his

18 conscious disregard of the unique medical needs of those individuals.

19

Indeed, Lt. Jones acknowledged he had received a “chronic care list” from Wellpath in late

20 September, but did not know what qualified someone to be on the list and made clear that the

21 Sheriff’s Department “do[es] not receive that on a normal basis.” Ex. 1 ¶ 12, Ex. G (Jones Depo.)

22 at 86:16–87:10, 88:23–25. Despite receiving actual knowledge that persons in his custody have

23 “chronic” health conditions, Jones took no steps to address the increased risk of COVID-19 those

24 individuals may face. Instead, after receiving the list, the only step he took was to find where those

25

26
12 Cheri Lehner testified that there were discussions about identifying people who were in an older age group and
27 “making sure that we checked in with them about symptoms,” Ex. 1 ¶ 13, Ex. H (Lehner Depo.) at 131:10-21. But she
did not recall having any discussions about identifying other medical vulnerabilities and, unsurprisingly, said we
28 should speak with the “medical people” about whether other efforts have been taken to identify medically vulnerable
individuals. See id. at 131:1-132:22.

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1 persons were housed. See Ex. 1 ¶ 12, Ex. G (Jones Depo.) at 88:6–20, 89:1–16.

2

Defendant’s conscious disregard to the known, increased risk that Medically Vulnerable

3 persons in the Jails may suffer severe illness or death if they contract COVID-19 qualifies as

4 deliberate indifference. Those individuals cannot wait for relief; each day they live in Defendant’s

5 constitutionally inadequate Jails poses a severe risk to their health and potentially also their lives.

6 Plaintiffs thus request that this Court order Defendant to develop constitutionally adequate policies

7 to protect Medically Vulnerable persons incarcerated in the Jails, including by, among other

8 measures described in the Proposed Order, identifying all persons in the Jails who are medically

9 vulnerable, prioritize for single cell units persons who are medically vulnerable, and provide

10 regular monitoring of medically vulnerable persons for COVID-19.

11

3. Defendant’s Punitive “Social Distancing” Policy Deprives Incarcerated

Individuals of their Right to Exercise

12

In response to this Court’s TRO requiring Defendant to implement a social distancing

13

policy, TRO at 47–48, Defendant has implemented a purported “social distancing” policy in the

14

Jails. But the policy, which requires only three hours per week of out-of-cell time, is in such

15

excess of its intended purpose to mitigate exposure to COVID-19 that it amounts to punishment

16

under the Fourteenth Amendment and also amounts to deliberate indifference to incarcerated

17

persons’ right to exercise. As expert Dr. Haney explains, the cells at the Jails “are functioning in

18

ways that are essentially identical to the solitary confinement-type housing that has been shown to

19

place persons at significant risk of grave harm (including damage that is permanent, even fatal).”

20

See Ex. 5 (Haney Decl.) ¶ 32.

21

When asked how much time incarcerated individuals spend out of cell, Lt. Cory Jones

22

unabashedly responded that they receive only three hours per week. See Ex. 1 ¶ 12, Ex. G (Jones

23

Depo.) at 123:7–21. Some days they may not be allowed out of their cell at all “depend[ing] on

24

what is required to give them their three hours per week.” Id. at 130:5–10. Lt. Jones believed three

25

hours of out-of-cell time was the bare minimum necessary to satisfy California’s requirements

26

under Title 15. In Lt. Jones’s view, “Title 15 states that every incarcerated person . . . should be

27

allowed out of their cells for a minimum of three hours weekly.” Id. at 123:19–21. He is mistaken.

28

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1

Title 15 requires that Defendant provide “a minimum of three hours of exercise distributed

2 over a period of seven days.” Cal. Code Regs. tit. 15, § 1065 (emphasis added). The Fourteenth

3 and Eighth Amendments similarly protect detainees’ and prisoners’ right to exercise. See Pierce v.

4 Cnty. of Orange, 526 F.3d 1190, 1212 (9th Cir. 2008) (90 minutes per week of exercise for pre-

5 trial detainees a violation of the Fourteenth Amendment by “not giv[ing] meaningful protection to

6 this basic human necessity”); Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (“Deprivation of

7 outdoor exercise violates the Eighth Amendment rights of inmates confined to continuous and

8 long-term segregation.”). And under the Eighth Amendment, courts typically require at least five

9 hours of exercise per week. See e.g., Spain v. Procunier, 600 F.2d 189, 199-200 (9th Cir. 1979)

10 (affirming order requiring one hour of exercise five days per week); Davenport v. DeRobertis, 844

11 F.2d 1310, 1315 (7th Cir. 1988) (same). But Lt. Jones believed Title 15’s three-hour minimum

12 requirement applied to all out-of-cell time—during which incarcerated individuals must also make

13 phone calls to loved ones, calls to legal counsel, shower, and communicate with the outside world.

14 See Ex. 1 ¶ 12, Ex. G (Jones Depo.) at 142:3–19. In other words, Lt. Jones is aware that

15 incarcerated individuals are able to exercise only if and after they are able to accomplish all of the

16 other necessities of out-of-cell time, including communicating with the outside world and their

17 lawyer and maintaining basic personal hygiene (which is especially important in a pandemic).

18

Defendant’s policy thus “reduces the amount of exercise to a point at which there is no

19 meaningful vindication of the constitutional right [under the Fourteenth Amendment] to exercise

20 for this entire category of detainees.” See Pierce, 526 F.3d at 1212. And, because Lt. Jones is

21 aware of the limited (or non-existent) time post-conviction inmates have to exercise, the policy

22 also amounts to subjective deliberate indifference to a right to exercise. See Lopez v. Smith, 203

23 F.3d 1122, 1132-33 (9th Cir. 2000) (en banc) (finding that a prisoner who was denied access to

24 outdoor exercise for six-and-one-half weeks had a cognizable Eighth Amendment claim); Spain v.

25 Procunier, 600 F.2d 189, 199 (9th Cir. 1979) (prisoners had a right to outdoor exercise under the

26 Eighth Amendment when they were subject to “continuous segregation, spending virtually 24

27 hours every day in their cells” and their “contact with other persons was minimal”).

28

Not only is the three-hour-per-week policy a flagrant violation of incarcerated individuals’

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1 right to exercise, but it also constitutes punishment for pre-trial detainees in violation of the

2 Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 536–37 (1979) (“[T]he Government

3 concededly may detain [someone] to ensure his presence at trial and may subject him to the

4 restrictions and conditions of the detention facility so long as those conditions and restrictions do

5 not amount to punishment, or otherwise violate the Constitution.”). To determine whether a jail

6 condition amounts to punishment, courts evaluate several factors, many of which demonstrate that

7 the three-hour out-of-cell rule is an excessive restraint in relation to its stated purpose of “social

8 distancing.” See id. at 537–38 (listing factors).

9

First, being unable to leave one’s cell is one of the most “traditional” forms of punishment

10 in penal institutions. See id. (looking at “whether [the condition] has historically been regarded as

11 a punishment”). Being confined to a cell with just one other cellmate—and without any means of

12 contacting the outside word through phones, tablets, or computers, see Ex. 1 ¶ 12, Ex. G (Jones

13 Depo.) at 131:17-25 to 132:1-8—is akin to solitary confinement. As Dr. Haney explains, “[t]here

14 is a large scientific literature that documents the adverse psychological and physical effects of the

15 kind of isolated confinement to which persons incarcerated in the Tulare County Jails are now

16 being subjected.” Ex. 5 (Haney Decl.) ¶ 33. The United Nations consider solitary confinement to

17 be torture and have called for the practice to be banned since 2011.13 Second, without access to the

18 outside world, isolating incarcerated persons promotes the “traditional aims of punishment-

19 retribution and deterrence,” Bell, 441 U.S. at 537–38, by silencing those who speak out against the

20 Jails’ deficient conditions and deterring detainees from advocating for their lives and health. Cf.

21 Ex. 8 (Ayala Decl.) ¶ 9. As Lt. Jones admitted, there is no way to communicate with the outside

22 world inside the jail cell. See Ex. 1 ¶ 12, Ex. G (Jones Depo.) at 131:22–132:2. Third, confining

23 individuals to their cells for 165/168 hours per week by definition involves a restraint on

24 incarcerated individuals’ movement. Bell, 441 U.S. at 537–38 (looking at “[w]hether the sanction

25 involves an affirmative disability or restraint”).

26

Finally, while Defendant may argue that the purpose of the restrictive out-of-cell time

27

28 13 See Solitary Confinement Should Be Banned in Most Cases, UN Expert Says, UN News (Oct. 18, 2011),
https://news.un.org/en/story/2011/10/392012-solitary-confinement-should-be-banned-most-cases-un-expert-says.

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1 policy is to enforce social distancing, see Ex. 1 ¶ 12, Ex. G (Jones Depo.) at 136:7–10, the policy

2 is “excessive in relation to the alternative purpose assigned.” Bell, 441 U.S. at 537–38. The Adult

3 Pre-Trial facility alone is approximately 88,000 square feet and the common space and yard are

4 each the size of one-and-a-half basketball courts. Ex. 1 ¶ 12, Ex. G (Jones Depo.) at 133:20–25,

5 136:23–137:8. Despite this ample space, only four incarcerated individuals (and possibly eight)

6 are allowed into the space at any given time. See Ex. 1 ¶ 12, Ex. G (Jones Depo.) at 134:12–17.

7 Moreover, that incarcerated persons are given what Defendant believes to be the bare minimum

8 three hours out of cell per week demonstrates the policy is not designed to actually address the

9 rapid transmission of the disease, but instead to punish incarcerated people for speaking out about

10 the unconstitutional COVID-19 conditions at the Jails. Indeed, one incarcerated person overheard

11 a guard saying that the amount of in-cell time was because people had complained to the ACLU

12 about COVID-19. See Ex. 8 (Ayala Decl.) ¶ 9.14 As Dr. Haney explains, TCSD’s solitary-type

13 restrictive housing is “inappropriate, ill conceived, and counter-productive.” Haney Decl. ¶ 29.

14

The record reflects not only that Defendant is deliberately indifferent to the safety and

15 health of incarcerated persons at the Jails, but also that even when Defendant does act in response

16 to the COVID-19 virus, he does so in the most punitive manner possible—infringing Plaintiffs’

17 other Constitutional rights in the process. Plaintiffs thus ask this Court to order Defendant to

18 enforce social distancing in a way that not only protects incarcerated people from the risk of

19 COVID-19 exposure, but also allows them a constitutionally adequate amount of exercise time

20 and reduces the mental and physical harm caused by excessive isolated confinement.

21

B. Plaintiffs and the Proposed Class Members Will Suffer Irreparable Harm

22

To prevail on their Motion, Plaintiffs must show a likelihood that they will suffer

23 irreparable harm absent this Court granting preliminary injunctive relief. See All. For the Wild

24 Rockies, 632 F.3d at 1131. All residents of the Tulare County Jails are likely to suffer irreparable

25 harm absent this Court’s immediate intervention.

26

27
14 Because post-conviction inmates are being indefinitely held in their cells in near-solitary confinement, Defendant’s
28 policy could eventually run afoul of the Eighth Amendment. See Hutto v. Finney, 437 U.S. 678, 688 (1978) (evidence
sustained finding that over thirty days of punitive isolation in cells violates the Eighth Amendment)

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1

“It is well established that the deprivation of constitutional rights ‘unquestionably

2 constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (citation

3 omitted). That is particularly so when, as here, the constitutional injury may also cause irreparable

4 injury to Plaintiffs’ and class members’ health. See, e.g., Castillo v. Barr, No. CV 20-00605 TJH

5 (AFMx), 2020 WL 1502864, at *1 (C.D. Cal. Mar. 27, 2020) (immigration detainee petitioners

6 likely to suffer irreparable harm from COVID-19 due to jail’s policies and practices).

7

This Court has already held that Plaintiffs have shown a likelihood they will suffer

8 irreparable harm due to COVID-19 and from violations of their constitutional rights absent

9 judicial relief. See TRO at 41-43. Unfortunately, not enough has changed in the Jails since this

10 Court’s September 2 Order: Defendant continues to maintain a constitutionally deficient testing

11 policy and he has taken no additional precautions to address the risks posed to Medically

12 Vulnerable persons in the Jails. Members of the Medically Vulnerable Subclass, in particular, face

13 increased risk of severe illness and possibly death absent a Court order requiring Defendant to take

14 precautions to protect them. See Harawa Decl. ¶ 37.

15

Making matters worse, Defendant’s punitive “social distancing” measure is already

16 causing incarcerated individuals to suffer severe psychological distress. This policy creates a

17 serious risk that incarcerated people experience both mental and physical harm. See Ex. 5, Haney

18 Decl. ¶¶ 23-24, 33-43. One individual has even attempted suicide. See Ex. 8 (Ayala Decl.) ¶ 12.

19 Such levels of psychological distress constitute irreparable harm. See Edmo v. Corizon, Inc., 935

20 F.3d 757, 797–98 (9th Cir. 2019) (ongoing psychological distress and high risk of suicide

21 constituted irreparable harm).

22

C. The Balance of Equities and Public Interest Both Favor Plaintiffs and the

Proposed Class

23

As this Court has already acknowledged in its TRO, the balance of equities tips in

24

Plaintiffs’ favor. To award relief, the Court “must balance the competing claims of injury and

25

must consider the effect on each party of the granting or withholding of the requested relief,” and

26

“should pay particular regard for the public consequences” in granting an injunction. Winter, 555

27

U.S. at 24. In granting Plaintiffs’ request for a TRO, the Court concluded that Plaintiffs had

28

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1 satisfied their burden to show the balance of equities and public interest weighed in their favor.

2 TRO at 45. The same considerations that factored into the Court’s well-reasoned decision apply

3 again here: namely, Defendant has no interest in maintaining unconstitutional conditions, so

4 Plaintiffs’ and class members’ interest in their constitutionally protected rights to health, safety,

5 and exercise prevail. Similarly, the public interest weighs in Plaintiffs’ favor because it is always

6 in the public interest to prevent a violation of a party’s constitutional rights. See Preminger v.

7 Principi, 422 F.3d 815, 826 (9th Cir. 2005) (“Generally, public interest concerns are implicated

8 when a constitutional right has been violated, because all citizens have a stake in upholding the

9 Constitution.”). Society maintains a strong interest in keeping incarcerated persons safe from

10 COVID-19 because preventing a COVID-19 outbreak can help prevent the further spread of the

11 virus in the community and the burden on local healthcare facilities.

12 IV. CONCLUSION

13

Plaintiffs have shown a high likelihood of success on the merits of their claims and an

14 imminent threat of irreparable injury. Moreover, the balance of harms and public interest weigh in

15 favor of immediate injunctive relief. Plaintiffs therefore respectfully request that the Court grant

16 their motion for preliminary injunction.

17 DATED: November 3, 2020

MUNGER, TOLLES & OLSON LLP

18

By:

/s/ Omar H. Noureldin

19

OMAR H. NOURELDIN

Attorneys for Plaintiffs

20

21

22

23

24

25

26

27

28

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NOTICE AND MOTION FOR PRELIMINARY INJUNCTION

 
 Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 1 of 40

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 CHARLES CRISWELL, et al.,

No. 1:20-cv-01048-DAD-SAB

12

Plaintiffs,

13

v.

14 MICHAEL BOUDREAUX, in his official capacity as Sheriff of Tulare County,
15
Defendant. 16

ORDER DENYING PLAINTIFFS’ MOTION FOR PROVISIONAL CLASS CERTIFICATION AND MOTION FOR A PRELIMINARY INJUNCTION WITHOUT PREJUDICE
(Doc. Nos. 43, 44)

17

18

19

This matter came before the court on December 2, 2020 for a hearing on the motion for

20 provisional class certification (Doc. No. 43) and the motion for a preliminary injunction (Doc.

21 No. 44) filed on behalf of plaintiffs Charles Criswell, Levi Johnson, Samuel Camposeco, Adam

22 Ibarra, and California Attorneys for Criminal Justice, (collectively “plaintiffs”). Attorneys Omar

23 Noureldin and Lauren M. Harding of Munger, Tolles & Olson LLP and Kathleen Guneratne of

24 the ACLU Foundation of Northern California appeared via video for plaintiffs. Attorney

25 Christopher M. Pisano of Best, Best & Krieger LLP appeared via video for defendant Michael

26 Boudreaux, in his official capacity as Sheriff of Tulare County. For the reasons explained below,

27 the court will deny the pending motions without prejudice.

28 ///// 1

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 2 of 40

1

BACKGROUND

2

The court previously summarized plaintiffs’ allegations in its September 2, 2020 order

3 granting their application for provisional class certification and motion for a temporary

4 restraining order, in part. (Doc. No. 26 (“TRO”).) The court will not repeat that factual

5 background in this order.

6

In the TRO, the court ordered defendant to adopt COVID-19 related policies with regard

7 to social distancing, masks, testing, isolation, quarantine, and observation, and to memorialize

8 those policies in writing. (Id. at 47–48.) As explained in the TRO, the evidentiary record before

9 the court at that time had not been “sufficiently developed to support an injunction requiring

10 defendant to immediately test all inmates and staff in the [Tulare County] Jails for COVID-19.”

11 (Id. at 45.) The court found “it prudent at [that] point to instead require defendant to develop

12 written policies on key COVID-19 related issues,” and ordered temporary injunctive relief

13 accordingly. (Id.)

14

With the factual record now more fully developed, plaintiffs filed the pending motion for

15 a preliminary injunction (Doc. No. 44) and a motion for provisional certification of a subclass of

16 “medically vulnerable” inmates in the Jails (Doc. No. 43). Therein, plaintiffs argue that they are

17 likely to succeed on the merits of their first and second causes of action, in which they assert

18 claims pursuant to 42 U.S.C. § 1983 for deliberate indifference to the serious medical needs of

19 pretrial detainees and prisoners in violation of the Fourteenth and Eighth Amendments of the U.S.

20 Constitution, respectively. (Doc. Nos. 44 at 24; 46 at 8 n.6 (“Plaintiffs do not seek relief on their

21 third through fifth claims, which pertain to access to counsel.”)) In particular, plaintiffs contend

22 that “[d]espite having over two months to remedy any constitutional violations, Defendant

23 continues to operate the Jails in a way that puts the Provisional Class at [an] unconstitutionally

24 high risk of contracting the potentially lethal COVID-19 virus,” and his “actions pose a particular

25 threat to the proposed Medically Vulnerable Subclass” yet he “has not taken steps to identify—

26 much less actively monitor or protect—medically vulnerable individuals in the Jails.” (Doc. No.

27 44 at 8.) Plaintiffs maintain that by failing to implement an effective testing policy and failing to

28 identify and attend to medically vulnerable inmates, defendant’s conduct constitutes deliberate 2

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 3 of 40

1 indifference to their serious medical needs in violation of their constitutional rights. (Id. at 24.)

2 Plaintiffs also contend that defendant’s social distancing policy, which effectively limits inmates

3 to only thirty minutes of out-of-cell time per day, is not only untethered to defendant’s stated

4 social distancing purposes, but it is also punitive and deprives the inmates of their right to

5 exercise in violation of the Eighth and Fourteenth Amendments and Title 15 of the California

6 Code of Regulations. (Id. at 34–37.)

7

In support of their motion for a preliminary injunction, plaintiffs filed declarations from

8 thirty inmates attesting to the conditions of their confinement in the Jails (Doc. Nos. 44-20–44-

9 25), the declaration of Dr. Jaimie Meyer, an Associate Professor of Medicine and Clinical

10 Professor of Nursing at Yale University, regarding COVID-19 testing strategies (Doc. No. 44-

11 17), the declaration of Dr. Nina Harawa, an epidemiologist and Professor In-Residence at the

12 David Geffen School of Medicine at the University of California, Los Angeles, regarding

13 COVID-19 transmission and COVID-19-related risks posed to medically vulnerable inmates in

14 carceral facilities (Doc. No. 44-18), and the declaration of Dr. Craig W. Haney, a Professor of

15 Psychology at the University of California, Santa Cruz, regarding the psychological impact of

16 defendant’s COVID-19 social distancing policy on those incarcerated in the Jails. (Doc. No. 44-

17 19). In addition, plaintiffs have submitted excerpts of deposition testimony from the depositions

18 of several officials in the Tulare County Sheriff’s Department (“TCSD”) and the Tulare County

19 Health and Humans Services Agency (“HHSA”). (Doc. Nos. 44-8–44-12.)

20

On November 17, 2020, defendant filed his opposition to the pending motion for a

21 preliminary injunction. (Doc. Nos. 45, 45-1.) Defendant notes in his opposition, however, that

22 he does not oppose plaintiffs’ pending motion for provisional certification of a subclass of

23 medically vulnerable inmates, apart from his argument that granting provisional certification is

24 unnecessary because preliminary injunctive relief is not warranted. (Doc. No. 45-1 at 31.) In

25 support of his opposition, defendant has filed declarations from the following TCSD and HHSA

26 officials: Lieutenant Jonathan Brown (Doc. No. 45-5), Lieutenant Cory Jones (Doc. No. 45-6),

27 Captain Gabriel Macias (Doc. No. 45-7), Lieutenant David Winters (Doc. No. 45-8), Lieutenant

28 Cyrena Robles (Doc. No. 45-9), Assistant Sheriff Cheri Lehner (Doc. No. 45-10), Administrative 3

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 4 of 40

1 Sergeant Julie Stamper (Doc. No. 45-11), Correctional Sergeant Russell Murphey (Doc. No. 45-

2 12), Administrative Sergeant Andy Garcia (Doc. No. 45-13), Shift Sergeant Jerry Neves (Doc.

3 No. 45-14), Benjamin Mitchell, Health Services Manager for HHSA (Doc. No. 45-3), Dr. Karen

4 Haught, Public Health Officer for HHSA (Doc. No. 45-15), and Dr. Sharon Minnick, Senior

5 Epidemiologist for HHSA (Doc. No. 45-16). In addition, defendants filed declarations from

6 Kevin Silveira, the Health Services Administrator for Wellpath, which contracts with TCSD to

7 provide medical services in the Jails (Doc. No. 45-4); Michael K. Brady, a consultant who

8 defendant retained to conduct an independent, non-clinical COVID-19 inspection of the Jails

9 (Doc. No. 45-2); and Dr. Philip Keiser, a licensed infectious disease physician and Professor of

10 Medicine for the University of Texas, who defendant retained to review and analyze defendant’s

11 COVID-19 policies from a public health perspective (Doc. No. 45-17).

12

On November 24, 2020, plaintiffs filed their reply brief in support of the pending motion

13 for a preliminary injunction. (Doc. No. 46). In further support of their motion, plaintiffs also

14 filed a supplemental declaration from Dr. Meyer (Doc. No. 46-12), additional excerpts of

15 deposition testimony (Doc. No. 46-9, 46-10), and updated COVID-19 testing records (Doc. No.

16 46-11.)

17

FACTS

18

Based on the evidence that the parties have submitted to the court, the relevant facts are

19 summarized as follows.

20 A. The Jails

21

TCSD currently operates three detention facilities at issue in this case: Adult Pre-Trial

22 Facility (“APTF”), Bob Wiley Detention Facility (“Bob Wiley”), and South County Detention

23 Facility (“South County”) (collectively, the “Jails”). (Doc. No. 45-1 at 11.) APTF has an inmate

24 capacity of 394, Bob Wiley has an inmate capacity of 702, and South County has an inmate

25 capacity of 519, for a combined total capacity at the Jails of 1,615 inmates. (Id. at 12–13.) As of

26 November 6, 2020, there were 312 inmates in APTF (79% of capacity), 582 inmates in Bob

27 Wiley (82% of capacity), and 330 inmates in South County (64% of capacity). (Doc. No. 45-2 at

28 9, 13, 15.) The current average daily inmate count is 1,200, and the average length of detention in 4

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 5 of 40

1 the Jails is 90 days. (Doc. No. 45-1 at 13.) The Jails are designed for short and intermediate term

2 detentions, as most convicted inmates are transferred to the state prison system and the custody of

3 the California Department of Corrections and Rehabilitation (“CDCR”) after they are sentenced. 4 (Id.)1

5

APTF was built in the late ‘90s and is divided into four units, with each unit subdivided

6 into two housing pods “A” and “B.” (Doc. No. 45-6 at ¶ 3.) Each housing pod in Units 1, 2, and

7 4 has capacity for 50 inmates, whereas Unit 3-A has a capacity of 47 inmates and Unit 3-B has a

8 capacity of 37 inmates. (Id.) Each housing pod is a separate and self-contained housing area with

9 two stories and cells wrapping around 180 degrees of the pod. (Id. at ¶ 4.) Each housing pod has

10 two showers on each level, an indoor and outdoor program area, and a booth for in-person visits.

11 (Id.) APTF also has a hospital area with a capacity for 10 hospital beds and an intake area

12 consisting of “five multi-person holding cells, two single person holding cells, three classification

13 booths, and two showers,” and a medical screening area. (Id. at ¶¶ 3, 5.) “There is also a separate

14 area in this location of APTF where inmates are held for court hearings, which contains three

15 single person holding cells and five multi-person holding cells.” (Id. at 6.)

16

Bob Wiley was built in 1984 and is similarly divided into four units that each have

17 separate housing modules with varying capacities and contain both single- and double-occupancy

18 cells. (Doc. No. 45-8 at ¶¶ 5–6.) Female inmates are housed in the three modules of Unit 1:

19 Mod-11 has a capacity for 60 inmates in single- and double-occupancy cells; Mod-12 has a

20 capacity for 16 inmates in 16 single cells and is used to house inmates who must be kept 21 separate2; and Mod-13 has a capacity for 80 inmates and is the only dormitory-style unit in the

22 Jails. (Id. at ¶ 5.) Unit 2 has two modules with each having a capacity for 95 inmates in a

23 1 The undersigned notes, however, that in light of changes enacted in California over the last
24 several years it is generally recognized that more inmates are serving longer periods of time in all county jails and the court presumes that this trend has impacted Tulare County as well.
25
26 2 According to the lieutenants in charge of each of the Jails, there are various reasons that inmates would need to be kept separate, including: “because they have discipline problems[;]
27 mental health issues” (Doc. No. 45-8 at ¶ 5); “are violent, disruptive or combative” (Doc. No. 459 at ¶¶ 2, 11); or have gang affiliation, are sex offenders, “or are high profile, and thus likely to be
28 attacked.” (Doc. Nos. 45-8 at ¶ 5, 11; 45-9 at ¶¶ 2, 11).
5

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 6 of 40

1 mixture of single- and double-occupancy cells. (Id. at ¶ 6.) Unit 3 has two modules as well, with

2 Mod-31 having a capacity of 127 inmates in a mixture of single- and double-occupancy cells and

3 Mod-32 having a capacity for 32 inmates in single cells to house inmates who must be kept

4 separate. (Id.) Unit 4 also has two modules with each having a capacity for 95 inmates. (Doc.

5 No. 47-1 at ¶ 6.) Each unit in Bob Wiley has a separate heating and air conditioning system, and

6 like the housing pods in APTF, each module in Bob Wiley is a separate and self-contained

7 housing area with two stories, shower stalls on each story, and indoor and outdoor programming

8 areas. (Id. at ¶ 8.)

9

South County opened in 2019 and is divided into four units, though only Units 1 and 2,

10 which are self-contained living facilities, are currently being used to house inmates. (Doc. No.

11 45-9 at ¶ 2.) Each of those two units is divided into five pods. (Id. at ¶ 3–4.) In Unit 1, pods 1-

12 A, 1-B, 1-C, and 1-D each have a capacity for 60 inmates in a mix of single- and double-

13 occupancy cells, and 1-E has four single-occupancy cells used for inmates who must be kept

14 separate. (Id. at ¶ 3.) In Unit 2, pods 2-A and 2-B have a capacity for 64 inmates each, but they

15 “are currently unoccupied due to staffing” because, as Lieutenant Robles has explained, they

16 “need 15 additional deputies in order to use these pods to house inmates, and these positions are

17 currently not in the budget for the Tulare County Jails.” (Id. at ¶ 4.) Pods 2-C and 2-D each have

18 a capacity for 60 inmates, and pod 2-E consists of only two single occupancy cells that are used

19 for inmates who must be kept separate. (Id.) With the exception of the smaller pods used for

20 inmates who have to be kept separate, each housing pod has two stories with cells wrapping

21 around 180 degrees, shower stalls adjacent to the cells on each level, and an indoor and outdoor

22 program area. (Id. at ¶ 5.) Each unit has a separate heating and air conditioning system. (Id.)

23 Unit 3, which has a capacity for 16 inmates, is currently unoccupied and being used for remote

24 court appearances via Zoom. (Id. at ¶ 6.) The last unit, which is a standalone pod with a capacity

25 for 9 inmates, is also currently unoccupied and is being used as a law library for pro per inmates.

26 (Id.)

27

In deciding in which facility to house inmates, TCSD takes “into account numerous

28 factors, including classification of offense, gang affiliation, and whether the inmate has any 6

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 7 of 40

1 protective custody needs.” (Doc. No. 45-6 at ¶ 31.) There are three rival gangs in Tulare County

2 (Doc. No. 45-2 at 17), and Lieutenant Jones estimates that 70% of the inmates in the Jails “are

3 either in a gang, are a gang affiliate, or are a ‘drop out.’” (Doc. No. 45-6 at ¶ 20.) Accordingly,

4 Lieutenant Jones has explained that “[t]he process of determining where to house inmates is an

5 intricate process that requires a great deal of planning, as we have to try to avoid situations where

6 rival gang members, or gang members and drop outs, are in the same units, or worse yet on

7 program time together.” (Id. at ¶ 21.)

8 B. Defendant’s Current COVID-19-Related Policies

9

According to defendant, “[s]ince the start of the pandemic, TCSD has been preparing,

10 instituting, and updating COVID-19 prevention policies in cooperation with HHSA,” and “has

11 worked with HHSA to ensure that their policies for the prevention of COVID-19 have been

12 consistent with CDC guidelines.” (Doc. No. 45-1 at 10.) In particular, HHSA has approved

13 TCSD’s policies, including:

14

testing new inmates at intake, isolating inmates who test positive,

testing and quarantining inmates who come into contact with a

15

positive test case, social distancing, cleaning and sanitizing,

screening upon entry into the Tulare County Jails, the temporary

16

suspension of visitors other than by remote means, the wearing of

masks by inmates, and the wearing of masks and protective

17

eyewear by staff while in the jails.

18 (Doc. No. 45-15 at ¶ 12.)

19

Under TCSD’s policies, each inmate receives a face shield at booking and a clean,

20 reusable cloth mask each day.3 (Doc. No. 45-5 at ¶ 8.) Inmates must wear the face shield and the

21 mask when they are out of their cells. (Id.) As of July 2020, TCSD and Wellpath staff are

22 required to wear face masks and protective eye wear at all times in the Jails and have their

23

24 3 In August 2020, TCSD entered into a contract with a vendor “to supply reusable cloth masks and to provide laundering services” for the masks that inmates are provided. (Doc. No. 45-10 at
25 ¶ 19.) “These masks must be exchanged daily so that they may be cleaned and sanitized by [the 26 vendor] for future use.” (Doc. No. 45-12 at ¶ 10.) TCSD secured this contract with the help of
Benjamin Mitchell, HHSA’s Health Services Manager and liaison to TCSD and Wellpath, who 27 had previously contracted with the same vendor to provide the same cloth masks and laundering
services for HHSA employees. (Doc. No. 45-3 at ¶¶ 1, 3, 8–10.) That is, inmates in the Jails are 28 receiving the same laundered cloth masks as HHSA employees. (Id. at 10.)
7

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 8 of 40

1 temperatures checked upon entry to the Jails. (Doc. Nos. 54-4 at ¶ 25; 45-10 at ¶¶ 17–18.) TCSD

2 staff must also self-report any COVID-19 symptoms and not come to work if they are

3 experiencing any such symptoms. (Doc. No. 45-6 at ¶ 12.) In addition, a TCSD deputy must put

4 on gloves before making physical contact with an inmate, such as when placing leg restraints on

5 an inmate prior to transport. (Id.)

6

With regard to cleaning supplies, Assistant Sheriff Lehner declares that TCSD has

7 maintained “a sufficient supply of soap to give to any inmate who is in need of it,” has “mounted

8 hand sanitizer bottles in the intake area, in hallways and in the housing pods,” and has made

9 cleaning supplies and mops “available to inmates to clean their cells during their programming

10 time.” (Doc. No. 45-10 at ¶ 10.) With regard to sanitization practices, TCSD purchased new

11 industrial power washing and vacuuming machines that mix water and chemicals to spray, clean,

12 and sanitize, and TCSD uses those machines “to clean the intake area, hallways, and common

13 areas in the Jails.” (Id. at ¶ 11.)

14

Throughout the pandemic, TCSD command staff and Mr. Mitchell of HHSA discussed

15 various efforts to inform inmates and staff about COVID-19, which led to TCSD posting the

16 educational flyers received from the CDC in English and Spanish in April, posting informational

17 signage from HHSA in April and additional signage from Wellpath in July, and running an

18 informational video about COVID-19 in the intake area on a constant loop. (Id. at ¶¶ 12–13.)

19

1. COVID-19 Testing and Screening Policies at Intake

20

Beginning in mid-July 2020, TCSD adopted a new intake policy, which required new

21 intakes to be placed in an observation unit for 14 days. (Doc. No. 45-4 at ¶ 10.) Inmates were

22 tested for COVID-19 on day 14 and were cleared to enter general population if they tested

23 negative and had no symptoms. (Id.) Inmates were screened on both day 1 and day 14 by

24 Wellpath staff, who asked questions based on a supplemental screening form prepared by

25 Wellpath’s Associate Chief Clinical Officer in Wellpath’s corporate office. (Id. at ¶¶ 8, 9, ) Mr.

26 Silveira, the Wellpath Health Services Administrator for the Jails has explained that

27

while the supplemental screening form was not as important at the

day-14 screening due to the mandatory testing at that time, it was

28

still important for the initial intake screening because it gave the

8

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 9 of 40

1

Wellpath medical professionals guidance in determining whether

there was a risk that the detainee had been exposed to COVID-19

2

prior to being booked, which would allow the medical provider to

make the decision of whether to conduct a COVID-19 test

3

immediately on intake.

4 (Id. at ¶ 10.)

5

As of September 30, 2020, in accordance with a change in CDC guidelines, HHSA and

6 TCSD revised the intake policy at the Jails to require that all new inmates are tested for COVID-

7 19 within 24 hours4 of booking and again at the end of a 14-day observation period.5 (Doc. Nos.

8 45-4 at ¶ 11; 45-6 at ¶ 16.) While awaiting the test results from the HHSA lab, which typically

9 takes about 36 to 48 hours for individual inmate testing, new inmates are kept in isolation and

10 begin a 14-day observation period.6 (Doc. Nos. 45-3 at ¶ 29; 45-6 at ¶ 16.) Inmates are tested

11 again at the end of that observation period. (Doc. No. 45-4 at ¶ 11.) Lieutenant Jones, who is in

12 charge of APTF (the facility where all new intakes are processed for classification and housing in

13 the Jails), explained that if an inmate who has been “in observation for some duration of the 14

14 days” is then given a cellmate, then that inmate’s observation clock starts over “based on the

15 newer booked inmate’s start time.” (Doc. No. 45-6 at ¶ 14.) Inmates are not cleared to enter

16 general population unless they test negative on day 14 and are not showing any COVID-19

17 symptoms. (Doc. Nos. 45-6 at ¶ 13; 45-3 at 19.) TCSD attempts to keep inmates who have been

18 /////

19 4 According to defendant’s consultant Mr. Brady, COVID-19 test samples are not taken from the
20 new intakes who arrive on a Friday or Saturday until Sunday because test samples need to be processed within 72 hours of collection and the HHSA lab processes COVID-19 tests only on
21 Mondays through Fridays. (Doc. No. 45-2 at 5; see also Doc. No. 45-3 at ¶ 17.)
22 5 Mr. Silveira explained in his declaration that the supplemental screening form is still being used 23 by Wellpath to screen new intakes “for information and tracking purposes,” despite the fact that
“there is no clinical judgment in determining whether a COVID-19 test is needed at intake,” 24 because that testing is now required by TCSD’s policies. (Doc. No. 45-4 at ¶ 11.)

25 6 Mr. Mitchell notes in his declaration that since implementation of the revised intake policy on 26 September 30, 2020, “there have been multiple occasions where an inmate tested positive, but the
inmate had been released [from custody and] back into the community before the test result came 27 back,” and that when this happens, “HHSA’s contact tracers reach out and attempt to locate the
released individual to let him/her know of the positive test result, and [HHSA] help[s] those 28 individuals with contract tracing.” (Doc. No. 45-3 at ¶ 30.)
9

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1 cellmates during their observation period together when they are transferred to general

2 population. (Doc. No. 45-6 at ¶ 14.)

3

Any inmate who tests positive is then placed in isolation, and any inmate who has been

4 exposed to someone who has tested positive is placed in quarantine. (Doc. No. 45-6 at ¶ 16.) If

5 an inmate refuses to be tested for COVID-19, which Lieutenant Jones estimates in his experience

6 overseeing the intake process occurs one percent of the time, that inmate is placed in quarantine.

7 (Doc. No. 45-6 at ¶ 13.) TCSD’s policy is to continue offering COVID-19 testing to inmates who

8 have refused testing, and for inmates who maintain their refusal to be tested, seven days are added

9 onto their observation period (for a total of 21 days), and they are cleared to enter general

10 population if they do not have symptoms at the end of that extended observation period. (Doc.

11 No. 45-3 at 19.)

12

Since late March and early April 2020, TCSD has maintained Unit 3-A of APTF as the

13 unit to be used for isolation and quarantine of inmates. (Doc. No. 45-6 at ¶ 10). TCSD command

14 staff, which is comprised of Assistant Sheriff Lehner, Captain Macias, and the Lieutenant in

15 charge of each facility (Doc. No. 45-6 at ¶ 7), also made the decision to set the heating and air

16 conditioning system in Unit 3-A for maximum intake of outside air (80% outside air, 20%

17 recycled air), in an effort “to prevent recirculating air that was potentially contaminated with

18 COVID-19,” and TCSD has maintained that setting throughout the pandemic despite the

19 significant resulting increase in energy costs. (Doc. No. 45-6 at ¶¶ 9–10.)7

20

In approximately mid-July 2020, TCSD command staff decided to use APTF’s Units 1-A,

21 1-B, 2-A, and 4-B as observation units, each with 25 double-occupancy cells. (Doc. No. 45-6 at ¶

22 14). Lieutenant Jones notes in his declaration that on occasion, general population inmates have

23 been housed in Unit 4-B “when there is not enough room at the other detention facilities,” but that

24 “when this happens, [TCSD] make[s] sure that the general population inmates are not placed in

25
26 7 Lieutenant Jones had discussed this air flow plan with TCSD’s liaison to HHSA, Mr. Mitchell, who then spoke with HHSA’s Public Health Officer, Dr. Haught, who had agreed that the air flow
27 plan was a good idea for the quarantine and isolation units. (Doc. No. 45-3 at ¶¶ 18–19.) With regard to energy costs, because outside air is not climate controlled, “it can require more energy
28 to heat or cool, especially when it is excessively hot or cold outside.” (Id. at ¶ 18.)
10

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 11 of 40

1 the same cells with an observation inmate, and that general population inmates are not allowed to

2 program, i.e. be out of their cells at the same time as observation inmates.” (Id. at 15.)

3

2. COVID-19 Testing Policies for General Population Inmates

4

TCSD relies on its medical provider Wellpath to make medical decisions for inmates in

5 the Jails, and “Wellpath medical professionals are responsible for making all clinical judgments

6 regarding the care of an inmate patient, including whether or not an inmate patient is tested for

7 COVID-19 outside the intake process.” (Doc. No. 45-4 at ¶ 12.) According to Mr. Silveira,

8 when assessing inmates outside of the intake process, Wellpath staff use the same supplemental

9 screening form that is used at intake “because it guides the initial visiting nurse in determining

10 whether the patient needs to see a Wellpath professional with prescriptive authority to further

11 analyze the patient and determine whether a COVID-19 test is needed, based on the totality of the

12 evidence and clinical judgment.” (Doc. No. 45-4 at ¶ 15.) The supplemental screening form,

13 shown in part below, directs Wellpath staff to ask three questions of inmates to screen for

14 possible COVID-19:

15

16

17

18

19

20

21

22

23

24

25

26 (Doc. No. 27-2 at 2.) The form also notes for staff that “[f]ever may not be present in some

27 patients, such as those who are very young, elderly, immunosuppressed, or taking certain

28 medications,” and that “[c]linical judgement should be used to guide testing of patients in such 11

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 12 of 40

1 situations.” (Id.) According to Mr. Silveira, “[i]n determining whether a patient with one or

2 more of these symptoms should be tested for COVID-19, as opposed to another ailment, medical

3 professionals need to use clinical judgment,” because many symptoms of COVID-19 “overlap

4 with symptoms of other infectious diseases and physical ailments that can plague the human

5 body.” (Doc. No. 45-4 at ¶ 15.) In addition, according to Mr. Silveira, Wellpath follows CDC

6 guidelines, which “do not call for automatic testing of individuals who only display one symptom

7 of COVID-19, or even multiple,” but rather provide that “patients with COVID-19 symptoms

8 should be referred for evaluation for testing.” (Id. at ¶ 19.)

9

3. COVID-19 Testing Events and Results

10

a. June 2020 Outbreak in APTF8

11

On June 25 and 26, 2020, there was an exposure and outbreak of COVID-19 in APTF

12 after a TCSD deputy who unknowingly had COVID-19 came to work and later tested positive for

13 the virus. (Doc. No. 45-10 at 15.) Once the exposure was discovered, Mr. Silveira and TCSD

14 conducted contact tracing of that deputy’s movements to determine what areas and which inmates

15 had been exposed. With the aid of video surveillance, TCSD determined that exposure was

16 limited to two housing pods in APTF, and those pods were locked down. (Doc. Nos. 45-10 at ¶

17 15; 45-3 at ¶ 24.) In addition, Wellpath performed contact tracing of inmates by reviewing the

18 inmate logs and “determined that no inmates had been transferred out of those pods since the

19 exposure.” (Doc. No. 45-4 at ¶ 22.) Mr. Mitchell discussed the outbreak with Dr. Haught,

20 HHSA’s Public Health Officer, who advised that in her opinion, “if Wellpath could determine

21
22 8 In its order granting a temporary restraining order, the court discussed two distinct, known COVID-19 outbreaks in the Jails, one in June 2020 and another at an unspecified later date, based
23 on the declarations submitted by the parties in connection with plaintiffs’ request for temporary relief and defendant’s opposition thereto. (Doc. No. 26 at 12.) Though Assistant Sheriff Lehner
24 referred to the second known outbreak in her prior declaration dated August 20, 2020 (Doc. No. 15-4 at ¶ 12), she makes no mention of any such second outbreak in her declaration dated
25 November 16, 2020 (Doc. No. 45-10), which defendant submitted in support of his opposition to 26 the pending motion. Neither party has submitted evidence regarding any known outbreak of
COVID-19 in the Jails other than the June 2020 outbreak. Moreover, defendant asserts in his 27 opposition that plaintiffs incorrectly refer to two outbreaks in their pending motion, when there
was only one outbreak. (Doc. No. 45-1 at 29 n.6.) Accordingly, the court does not discuss any 28 purported second outbreak in this order.
12

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 13 of 40

1 through contact tracing that the deputy only had contact with inmates in the two housing pods,

2 then only the inmates in those two housing pods would need to be tested.” (Doc. No. 45-3 at ¶

3 25.) Mr. Mitchell, Wellpath, and TCSD command staff then decided to test all inmates in the two

4 exposed pods but not the inmates in other pods at APTF. (Doc. No. 45-4 at ¶ 23.) Wellpath

5 tested the exposed inmates on June 25 and 26, 2020, and retested the inmates a week later and

6 again after the second week. (Id. at ¶¶ 23–24.) Each time an inmate tested positive, that inmate

7 was placed in the isolation pod, and inmates who tested negative remained in the quarantine pod.

8 (Id.) In total, from June 25 through July 13, 2020, Wellpath administered 142 tests on the 86

9 exposed inmates, of which 20 inmates tested positive for COVID-19. (Id.; Doc. No. 45-2 at 5.)

10

b. September 2020 Testing of Inmates in Intake Observation

11

To bring the intake process into compliance with CDC guidelines and TCSD’s revised

12 intake policy of testing new inmates within 24 hours of their booking, in late September 2020

13 TCSD tested inmates who were between day 1 and day 10 of their 14-day observation period.

14 (Doc. No. 45-3 at ¶ 32.) Mr. Mitchell has explained in his declaration that “the reason [TCSD]

15 tested all inmates only up to day ten is that those inmates who were between day eleven and day

16 fourteen were too close to the fourteenth day, and by the time [TCSD] got the results, [TCSD]

17 would have retested them almost immediately.” (Id.) “The process began on September 29, 2020

18 with the initial testing being done by Wellpath, and the final test results were all received by

19 October 2, 2020.” (Id.) In total, 168 inmates were tested for COVID-19.9 (Id.) However,

20 defendant does not specify how many of those inmates tested positive. At the hearing on the

21 pending motion, defense counsel explained that defendant did not consider the test positivity rate

22 of this round of testing to be relevant but rather that this testing event was described merely to

23 demonstrate the logistical challenges defendant faces in testing large numbers of inmates at one

24 time. (Doc. No. 51 at 4–5.)

25 /////

26 /////

27 9 There were technically 174 total tests conducted because six of those tests had problems with
28 collection or results and had to be re-administered. (Doc. No. 45-3 at ¶ 32.)
13

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 14 of 40

1

c. October 2020 Testing of Inmates Transferring to State Prison

2

On June 30, 2020, CDCR suspended all inmate transfers from county jails to state prisons

3 in California due to the pandemic, causing “a backlog of convicted inmates remaining in the

4 Tulare County Jails.” (Doc. Nos. 45-10 at ¶ 5; 45-7 at ¶ 4.) In August 2020, CDCR resumed

5 transferring inmates from certain counties, and in late October 2020, “CDCR informed TCSD that

6 they would accept 135 inmates who were overdue for transfer upon proof of a negative COVID-

7 19 test.” (Doc. Nos. 45-4 at ¶ 31; 45-10 at ¶ 21.)

8

Accordingly, on October 22 and 23, 2020, TCSD tested 135 inmates who were overdue to

9 be transferred to state prison. (Doc. Nos. 45-4 at ¶ 31; 45-10 at ¶ 21.) Of the 135 inmates who

10 were tested, 52 of those inmates were housed in South County, 75 inmates were housed at Bob

11 Wiley, and 8 inmates were housed in APTF. (Doc. No. 45-4 at ¶ 32.) Of those 135 tested, 134

12 tested negative for the virus. (Id. at ¶ 31) The one inmate who tested positive in this October

13 round of testing had also tested positive during the outbreak in June 2020.10 (Id.) TCSD

14 explained this to CDCR, and CDCR “agreed to take this inmate, as well as the other 134 who

15 tested negative.” (Id.)

16

d. Results of Testing Symptomatic Inmates Outside of Intake Process

17

Pursuant to the TRO issued by this court, on September 14, 2020, defendant filed a report

18 detailing “the number of inmates who have been tested as a result of Wellpath’s screening

19 criteria, how many of those inmates tested positive, when those tests were conducted, and in

20 which facility the inmates were incarcerated in at the time they were tested.” (Doc. No. 26 at 48.)

21 The data reflected in that report shows that between March and early September 2020, Wellpath

22 10 Though not addressed by the parties, the undersigned notes that several local detention 23 facilities with which the court is familiar, as well as the U.S. Bureau of Prisons, appear to have
interpreted CDC guidelines to mean that an inmate who has tested positive for coronavirus can be 24 considered “recovered” at the end of a quarantine period of 14 days (or now even 10 days),
without administering another COVID-19 test to confirm that the inmate is no longer infected. It 25 is not entirely clear from the record in this case that defendant shares this interpretation of those 26 guidelines and deems inmates who have tested positive for coronavirus in the Jails to be
“recovered” and eligible for a transfer out of the quarantine unit without administration of a re27 test. Nevertheless, incidents like this one, in which an inmate who tested positive in June and
tested positive again in October, at the very least calls into question the soundness of such an 28 interpretation of those guidelines.
14

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 15 of 40

1 tested only 33 inmates solely as a result of Wellpath’s screening criteria (not as a part of intake or

2 due to a known exposure), and all but one of those inmates were housed in APTF at the time they

3 were tested. (Doc. No. 29-1 at 22.) Of those 33 inmates tested, 4 inmates from APTF tested

4 positive for the virus. (Id.) In other words, Wellpath staff—relying on the screening form and

5 their clinical judgment to assess symptomatic inmates—did not test a single inmate in South

6 County and tested only one inmate in Bob Wiley during that time period. (Id.)

7

Mr. Silveira declares that there have been other instances of testing inmates at Bob Wiley

8 and South County and that as of to November 16, 2020, “a total of 89 inmates housed at Bob

9 Wiley and 55 inmates housed at South County have been tested for COVID-19, with not a single

10 one of these tests yielding a positive test result.” (Doc. No. 45-4 at ¶ 32.)11 The court notes

11 however, that after accounting for the October 22 and 23, 2020 testing of 52 inmates in South

12 County and 75 inmates in Bob Wiley, the “other instances” of testing that Mr. Silveira refers to

13 amounts to testing just fourteen inmates in Bob Wiley and three inmates in South County. (Id.;

14 see also Doc. No. 46-12 at ¶ 18.) Moreover, in his declaration Mr. Silveira does not clarify

15 whether these few “other instances” of testing were as a result of Wellpath staff assessing

16 symptomatic patients and determining that a COVID-19 test is clinically indicated.

17

Based on spreadsheets of testing data that defendant has produced in response to

18 plaintiffs’ interrogatories, plaintiff calculated the following data points related to defendant’s

19 testing of symptomatic inmates, which defendant does not dispute in his opposition to the

20 pending motion. (Doc. No. 44-1 at ¶¶ 17, 18.) From April through the end of September 2020,

21 11 According to data reported by the California Board of State and Community Corrections 22 (“BSCC”), between July 19, 2020 and October 31, 2020, TCSD tested zero inmates in Bob Wiley
and South County. (Doc. No. 44-4 at 2–14.) But as noted above, according to Mr. Silveira, 52 23 inmates in South County and 75 inmates in Bob Wiley were all tested at the end of October 2020
so that they could be transferred to state prison upon proof to CDCR that they tested negative for 24 COVID-19. (Doc. No. 45-4 at ¶ 32.) The parties have not explained how BSCC collects the
testing data it reports, or why there would be a discrepancy in the data reported by BSCC and 25 defendant’s testing records. At the hearing on the pending motion, defendant could not explain 26 why the October 2020 testing was not reflected in BSCC’s reports. (Doc. No. 51 at 8.)
Nevertheless, plaintiffs confirmed that they have no reason to question Mr. Silveira’s declaration 27 that those inmates were in fact tested as a prerequisite to CDCR accepting their transfer to state
prison and, implicitly, not as a result of Wellpath’s screening and assessing inmates who 28 complained of symptoms. (Id. at 9.)
15

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 16 of 40

1 eighteen inmates were tested due to reported COVID-19 symptoms, representing only 1.2% of all

2 tests administered. (Id.; Doc. No. 44 at 15.) Ten of those eighteen inmates tested positive for

3 COVD-19, resulting in a test positivity rate with respect to symptomatic inmates of 56%. (Id.)

4 At APTF, 335 inmates reported symptoms but only sixteen—about 5%—were tested for COVID-

5 19. (Doc. No. 44 at 15.) In other words, outside of the intake process and known exposures,

6 defendant did not test symptomatic inmates 95% of the time. (Id.)

7

e. Overall Testing Data in the Jails

8

According to Mr. Silveira, as of November 16, 2020, “Wellpath and TCSD have

9 conducted 2,059 total COVID-19 inmate tests since the outset of the pandemic,” which is not the

10 total number of inmates tested because some inmates have been tested more than once. (Doc. No.

11 45-4 at ¶ 29.) In defendant’s opposition to the pending motion, defendant cites Mr. Silveira’s

12 declaration but states that 1,859 COVID-19 inmates tests have been conducted in the Jails. (Doc.

13 No. 45-1). At the hearing, defense counsel could not explain the 200-test discrepancy in these

14 two figures but speculated it might be that one total reflected the number of tests, whereas another

15 may reflect the number of inmates tested. (Doc. No. 51 at 6–7.) In any event, defense counsel

16 suggested that the total as stated by Mr. Silveira in his declaration is likely correct because

17 Silveira reviewed testing records and had that information readily available when preparing his

18 declaration. (Id.)

19

According to the plaintiffs’ summary of a spreadsheet that defendant produced in

20 discovery, which “lists every COVID-19 test administered by the Tulare County Jails since

21 March 25, 2020 to November 16, 2020,” 71 of the 1,969 inmates who have been tested received

22 positive test results and four staff members of the 42 Wellpath staff who were tested received

23 positive test results for the virus. (Doc. Nos. 46-1 at ¶ 11; 46-11 at 2.) In total, 2,576 tests were

24 administered during that time period. (Id.)

25

Lieutenant Jones declared that as of November 10, 2020, there were a total of 1,199

26 inmates in the Jails, and 705 of those inmates “had received at least one COVID-19 test since

27 his/her booking,” representing “58.8% of all inmates who are current[ly] housed in the [Jails].”

28 (Doc. No. 45-6 at ¶ 38.) 16

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 17 of 40

1

4. Social Distancing Policies

2

In the TRO, the court ordered defendant to “[a]dopt a policy designed to reduce contacts

3 between incarcerated people in all common areas, including (but not limited to) bathrooms, day

4 rooms, yards, and pill lines, and allow for the possibility of social distancing by inmates.” (Doc.

5 No. 26 at 48–49.) Pursuant to the TRO, on September 8, 2020, defendant filed a copy of TCSD’s

6 Coronavirus Prevention and Protection, Policy 716, which includes section 716.3 addressing

7 social distancing. (Doc. Nos. 27 at ¶ 2.a.; 27-1 at 3–4.) Defendant’s social distancing policy

8 outlined directives to be followed in the Jails, including: (i) suspending in-person visitation

9 except for legal visits; (ii) allowing only the number of inmates that can be kept six feet apart to

10 shower at one time; (iii) encouraging inmates to utilize the bathroom in their cells whenever

11 possible and allowing only the number of inmates that can be kept six feet apart to utilize a multi-

12 person bathroom; (iv) reminding inmates to socially distance by staying six feet apart while in the

13 day room and yard areas and requiring inmates to wear their face masks and shields while in

14 those areas, though “[s]taff will continue to allow only the number of inmates out to program at

15 one time that allows for six feet of distance in the day rooms and the yard areas”; and (v)

16 dispensing medication at the inmate’s cell by staff wearing face masks, shields, and gloves while

17 medication is dispensed. (Id.)

18

Between April and July 2020, Mr. Mitchell had several discussions with TCSD command

19 staff to convey Dr. Haught’s message that it was important to keep inmates socially distanced as

20 much as possible. (Doc. Nos. 54-3 at ¶ 22; 45-6 at ¶ 23.) To that end, Mr. Mitchell discussed

21 with TCSD command staff how to achieve social distancing during the time when inmates are out

22 of their cells (referred to as “programming time”), which jail officials had found to be a challenge

23 “because inmates tend to congregate together when they are out of their cells on programming

24 time, and it is very difficult to keep them apart.” (Id. at ¶¶ 22–23; Doc. No. 45-9 at ¶ 7.) Though

25 each facility operates its own programming time schedule, a common thread across the facilities

26 is that inmates continued to congregate and were not respecting the social distancing requirement

27 of keeping six feet apart. (Doc. Nos. 45-9 at ¶ 8–9; 45-6 at ¶¶ 18, 12; 45-8 at ¶ 9.) Lieutenant

28 Robles explained that “[i]n mid-July, after further conversations with Mr. Mitchell, the 17

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 18 of 40

1 Lieutenants at each facility reduced programming time and allowed fewer inmates out of their

2 cells at the same time in order to better prevent inmates from congregating within six feet of each

3 other.” (Doc. No. 45-9 at ¶ 9.)

4

At Bob Wiley and APTF, the number of inmates allowed out of their cells for

5 programming was reduced to two inmates, or one cell at a time, which reduced programming time

6 for each inmate from 1 hour per day to 30 minutes per day, six days a week (Monday through

7 Saturday), with Sundays reserved for making up missed programming time during that week.

8 (Doc. Nos. 45-6 at ¶¶ 23–25, 27; 45-9 at ¶ 10; 45-8 at ¶ 9.) Lieutenant Jones explained that it was

9 his understanding “that Title 15 of the California Code of Regulations requires that inmates

10 receive at least three hours of programming time per week,” and that when TCSD made the

11 decision to “reduce the number of inmates who would be allowed to program together, [he] had to

12 figure out a way to make sure that all inmates received at least their minimum out of cell time.”

13 (Doc. No. 45-6 at ¶ 24.) Lieutenant Jones reasoned that because most of the pods in APTF have a

14 capacity of 50 inmates in 25 two-person cells, “[i]f a pod is full, and we are limiting programming

15 to one cell at a time, and there is a maximum of 12 hours per day of programming time, then we

16 can only give each cell 30 minutes programming time per day, and that still leaves us one cell

17 short for programming time for that day.” (Doc. No. 45-6 at ¶ 24.) For that reason, Sundays

18 were reserved for make-up programming time that had been missed during that week. (Id. at ¶

19 25.)

20

At South County, the number of inmates allowed out of their cells at one time was

21 reduced from six to four inmates, and programming time for each inmate was reduced from 1.5

22 hours per day to 1 hour per day. (Doc. No. 45-9 at ¶ 9.) Lieutenant Robles explained that it is

23 easier “to have more inmates out of their cells at once, at South County, than at APTF or Bob

24 Wiley” because it is easier to schedule programming time at South County, which is a “newer and

25 more efficient facility space” and houses “lower level offenders.” (Id. at ¶ 10.)

26 /////

27 /////

28 ///// 18

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1

LEGAL STANDARDS

2 A. Provisional Class Certification

3

District courts in this circuit can provisionally certify a class for the purposes of a

4 preliminary injunction. See Al Otro Lado v. Wolf, 952 F.3d 999, 1005 n.4 (9th Cir. 2020) (noting

5 that the Ninth Circuit has “approved provisional class certification for purposes of preliminary

6 injunction proceedings”) (citing Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1041–

7 143 (9th Cir. 2012) (concluding that “the district court acted within its discretion when it ruled

8 that [plaintiff] met the commonality, typicality, and adequacy requirements of [Federal Rule of

9 Civil Procedure] 23(a) and did not abuse its discretion by granting provisional class

10 certification.”).

11

Pursuant to Federal Rule of Civil Procedure 23, a party seeking class certification must

12 establish the following prerequisites:

13

(1) the class is so numerous that joinder of all members is

14

impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are

15

typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests

16

of the class.

17 Fed. R. Civ. P. 23(a). If these four prerequisites—commonly referred to as numerosity,

18 commonality, typicality, and adequacy—are satisfied, then the party seeking class certification

19 must also satisfy one of the three subsections of Rule 23(b). Here, plaintiffs seek class

20 certification under Rule 23(b)(2), which requires a showing that defendant “has acted or refused

21 to act on grounds that apply generally to the class, so that final injunctive relief or corresponding

22 declaratory relief is appropriate respecting the class as a whole.” (Doc. No. 10 at 9) (quoting Fed.

23 R. Civ. P. 23(b)).

24

The party seeking class certification bears the burden of establishing conformity with

25 these requirements and must do so by producing facts that “affirmatively demonstrate” that

26 certification is warranted. Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Wal-Mart

27 Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). Only after it has conducted a “rigorous

28 analysis” of these facts and determined that they show “actual, not presumed, conformance” with 19

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 20 of 40

1 Rule 23(a) and (b), may a district court certify a class. Ellis v. Costco Wholesale Corp., 657 F.3d

2 970, 981 (9th Cir. 2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 161 (1982));

3 see also Comcast, 569 U.S. at 33–34 (extending the “rigorous analysis” requirement to Rule

4 23(b)); Patel v. Nike Retail Servs., Inc., 14-cv-4781-RS, 2016 WL 1241777, at *3 (N.D. Cal. Mar.

5 29, 2016) (“This ‘rigorous’ analysis applies both to Rule 23(a) and Rule 23(b).”). A court must

6 review the merits of a party’s substantive claim only if they overlap with issues touching on class

7 certification. Ellis, 657 F.3d at 981 (citing Dukes, 564 U.S. at 350–51); Amgen Inc. v. Conn. Ret.

8 Plans & Tr. Funds, 568 U.S. 455, 466 (2013) (“Rule 23 grants courts no license to engage in free-

9 ranging merits inquiries at the certification stage. Merits questions may be considered to the

10 extent—but only to the extent—that they are relevant to determining whether the Rule 23

11 prerequisites for class certification are satisfied.”).

12

“The decision to grant or deny class certification is within the trial court’s discretion.”

13 Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010) (citing Yamamoto v.

14 Omiya, 564 F.2d 1319, 1325 (9th Cir. 1977)). If a court does decide to certify a class, it must

15 define the class claims and issues and appoint class counsel. Fed. R. Civ. P. 23(c)(1). Finally,

16 “[w]hen appropriate, a class may be divided into subclasses that are each treated as a class under

17 this rule.” Fed. R. Civ. P. 23(c)(5).

18 B. Preliminary Injunctive Relief

19

“The proper legal standard for preliminary injunctive relief requires a party to demonstrate

20 ‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the

21 absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction

22 is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting

23 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)); see also Ctr. for Food Safety v.

24 Vilsack, 636 F.3d 1166, 1172 (9th Cir. 2011) (“After Winter, ‘plaintiffs must establish that

25 irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.’”)

26 (quoting All. for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)). The Ninth

27 Circuit has also held that an “injunction is appropriate when a plaintiff demonstrates . . . that

28 serious questions going to the merits were raised and the balance of hardships tips sharply in the 20

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 21 of 40

1 plaintiff’s favor.” All. for Wild Rockies, 632 F.3d at 1134–35 (quoting Lands Council v. McNair,

2 537 F.3d 981, 97 (9th Cir. 2008) (en banc)).12 The party seeking the injunction bears the burden

3 of proving these elements. See Klein v. City of San Clemente, 584 F.3d 1196, 1201 (9th Cir.

4 2009); see also Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“A

5 plaintiff must do more than merely allege imminent harm sufficient to establish standing; a

6 plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive

7 relief.”) Finally, an injunction is “an extraordinary remedy that may only be awarded upon a

8 clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.

9

ANALYSIS

10 A. Motion for Provisional Certification of the Class and Medically Vulnerable Subclass

11

For the purposes of the TRO, the court provisionally certified the proposed class of “all

12 people who are now, or in the future will be, incarcerated in the Tulare County Jails” (the

13 “Provisional Class”). (Doc. No. 26 at 27, 47). Now, for the purposes of their pending motion for

14 preliminary injunctive relief, plaintiffs seek provisional re-certification of the Provisional Class

15 and provisional certification of a subclass of “persons whose age or medical conditions put them

16 at increased risk of severe illness from COVID-19 and who are confined pre-trial and pursuant to

17 a judgment of conviction in the Tulare County Jails” (the “Medically Vulnerable Subclass”).13

18
19 12 The Ninth Circuit has found that this “serious question” version of the circuit’s sliding scale approach survives “when applied as part of the four-element Winter test.” All. for the Wild
20 Rockies, 632 F.3d at 1134. “That is, ‘serious questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction,
21 so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the 22 injunction is in the public interest.” Id. at 1135.
23 13 According to plaintiffs, those medical conditions include: type 2 diabetes mellitus; chronic kidney disease; cancer; COPD (chronic obstructive pulmonary disease); immunocompromised
24 state, weakened immune system from solid organ transplant; obesity (body mass index of 30 or higher); serious heart conditions such as heart failure, coronary artery disease, or
25 cardiomyopathies; sickle cell disease; asthma (moderate to severe); cerebrovascular disease; liver 26 disease; cystic fibrosis; hypertension (high blood pressure); compromised immune system
(immunosuppression) from blood or bone marrow transplant, immune deficiencies, HIV, use of 27 corticosteroids, or use of other immune weakening medicines; neurological conditions, such as
dementia; pregnancy; pulmonary fibrosis (having damaged or scarred lung tissues); overweight 28 (BMI > 25kg/m2, but <30kg/m2); thalassemia; type 1 diabetes mellitus; and those age 55 or older.
21

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 22 of 40

1 (Doc. No. 43 at 6.) As noted above, defendant does not oppose plaintiffs’ motion to provisionally

2 certify the Provisional Class and the Medically Vulnerable Subclass. (Doc. No. 45-1 at 31.)

3

Nevertheless, because the court will deny plaintiffs’ motion for preliminary injunctive

4 relief for the reasons explained below, the court will also deny plaintiffs’ motion for provisional

5 class certification without addressing Rule 23’s requirements. In doing so, the court does not

6 suggest that plaintiffs have failed to meet the Rule 23 class certification requirements with regard

7 to the Provisional Class, which plaintiffs clearly satisfied in connection with the TRO (see Doc.

8 No. 26 at 21–27), or that plaintiffs would not be able satisfy those requirements to provisionally

9 certify the Medically Vulnerable Subclass. In addition, the court recognizes that in this

10 pandemic, circumstances are ever-changing and conditions in the Jails are evolving as well.

11 Thus, the court’s denial of plaintiffs’ motion for provisional class certification is without

12 prejudice to plaintiffs renewing their request in light of changed conditions in the Jails.

13 B. Plaintiffs’ Motion for Preliminary Injunctive Relief

14

1. Applicable Legal Standard for Objective Deliberate Indifference Claim

15

Plaintiffs contend that they are likely to succeed on the merits of their deliberate

16 indifference claims. (Doc. No. 44 at 23–24.) Because plaintiffs’ first cause of action challenges

17 the conditions of confinement in the Jails for pre-trial detainees, their first deliberate indifference

18 claim “arises under the Fourteenth Amendment’s Due Process Clause, rather than under the

19 Eighth Amendment’s Cruel and Unusual Punishment Clause.” See Gordon v. Cnty. of Orange,

20 888 F.3d 1118, 1124 (9th Cir. 2018). Conversely, plaintiffs’ second cause of action based upon

21 alleged deliberate indifference challenges the conditions of confinement in the Jails for convicted

22 prisoners, and thus arises under the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104

23 (1976) (holding that prison officials’ “deliberate indifference to serious medical needs of

24 prisoners” violates the Cruel and Unusual Punishment Clause of the Eighth Amendment); see

25 also Helling v. McKinney, 509 U.S. 25, 29–30 (1993) (“[T]he Eighth Amendment applies to

26 /////

27 /////

28 ///// 22

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 23 of 40

1 conditions of confinement that are not formally imposed as a sentence for a crime.”).14

2

To succeed on their Fourteenth Amendment claim, plaintiffs will have to prove objective

3 deliberate indifference. Gordon, 888 F.3d at 1124–25 (holding that “claims or violations of the

4 right to adequate medical care brought by pretrial detainees against individual defendants under

5 the Fourteenth Amendment must be evaluated under an objective deliberate indifference

6 standard”). To satisfy this objective deliberate indifference standard, plaintiffs must prove that:

7

(i) the defendant made an intentional decision with respect to the

conditions under which the plaintiff was confined; (ii) those

8

conditions put the plaintiff at substantial risk of suffering serious

harm; (iii) the defendant did not take reasonable available measures

9

to abate that risk, even though a reasonable official in the

circumstances would have appreciated the high degree of risk

10

involved—making the consequences of the defendant’s conduct

obvious; and (iv) by not taking such measures, the defendant caused

11

the plaintiff's injuries.

12 Id. at 1125. As to the third element, plaintiffs must “prove more than negligence but less than

13 subjective intent—something akin to reckless disregard.” Id. Courts “assess whether society

14 considers the risk that the prisoner complains of to be so grave that it violates contemporary

15 standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner

16 must show that the risk of which he complains is not one that today’s society chooses to tolerate.”

17 Helling, 509 U.S. at 36.

18
19 14 Plaintiffs maintain that the court need only analyze plaintiffs’ claims under the objective deliberate indifference standard of the Fourteenth Amendment because pre-trial detainees and
20 convicted prisoners are housed together and experience the same conditions of confinement in the Jails, and “it would be impossible to order separate relief.” (Doc. Nos. 44 at 25; 46 at 9.) The
21 court acknowledges this fact and notes that defendant’s consultant has declared that “[a]s of 22 November 6, 2020, there was a total of 945 unsentenced inmates in the [Jails], and that represents
77 percent of the current inmate population of 1224.” (Doc. No. 45-2 at 18.) However, the court 23 disagrees that these facts necessarily render analysis of subjective deliberate indifference under
the Eighth Amendment unnecessary in all such circumstances. Indeed, in the TRO, the court 24 separately analyzed plaintiffs’ likelihood of success as to both of their deliberate indifference
claims. (Doc. No. 26 at 31–36.) Nevertheless, the court need not analyze whether plaintiffs have 25 shown a likelihood of success in proving subjective deliberate indifference here because the court 26 finds on the factual record now before it that they have failed to demonstrate a likelihood of
success in proving objective deliberate indifference, a necessary element under both the 27 Fourteenth and Eighth Amendments. See Helling, 509 U.S. at 35–36 (affirming remand to
provide plaintiff an opportunity to satisfy “both the subjective and objective elements necessary 28 to prove an Eighth Amendment violation”).
23

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 24 of 40

1

2. Parties’ Arguments and Evidence Regarding Deliberate Indifference Claims

2

Here, plaintiffs contend that they are likely to succeed on the merits of their Fourteenth

3 Amendment deliberate indifference claim because defendant’s “refusal to implement an effective

4 testing policy violates incarcerated people’s right to be free from a serious risk of medical harm.”

5 (Doc. No. 44 at 26.) In particular, plaintiffs contend that defendant has failed “to consistently

6 apply his own intake and observation policies” and “to supervise [the Wellpath] medical team

7 who are allegedly responsible for testing” but who consistently refuse to test symptomatic

8 inmates. (Id. at 26–27, 30.) In addition, plaintiffs assert that defendant has acted with deliberate

9 indifference by failing to identify which inmates are medically vulnerable, and by failing to take

10 additional precautions with respect to those medically vulnerable inmates, such as prioritizing

11 them for housing in single cells and providing “regular monitoring.” (Id. at 30, 32–34.)

12

As evidence in support of their argument, plaintiffs point to the declarations from several

13 inmates who have described various instances of TCSD not complying with the intake and

14 observation policies (id. at 19–20), including the following examples:

15

• On September 4, 2020, plaintiff Levi Johnson was booked as a new inmate in the

APTF observation unit 2-B and placed in a cell with an inmate who was on day ten of

16

his 14-day observation period. (Doc. No 44-22 at 3, ¶¶ 9–10.) Four days later, that

inmate was transferred to general population in Bob Wiley; TCSD did not restart that

17

inmate’s observation period as required by defendant’s stated policy. (Id.)

18

• In late September 2020, plaintiff Johnson’s observation period did not restart despite

the fact that a newly arrested inmate was placed in his cell for one weekend while

19

awaiting his court appearance, and after that inmate left, another newly booked inmate

was placed in his cell. (Id. at 4, ¶¶ 12–15.) 20

• On September 15, 2020, deputies moved twenty inmates from unit 4-A in APTF to

21

South County, leaving ten inmates, including inmate Rigoberto Benavidez in unit 4-A.

(Doc. No. 44-20 at 24, ¶ 22.) According to inmate Benavidez, the deputies then filled

22

the vacancies in his unit with twenty inmates from the quarantine unit who had not

been medically cleared or quarantined for the full 14-day period. (Id.) Upon realizing

23

this mistake, the next day, deputies moved those inmates back into the quarantine unit

and brought in another twenty inmates “who had been medically cleared and getting

24

off their 14-day quarantine,” into his unit. (Id.)

25

• On September 16, 2020, a newly booked inmate, Destiny Lopez, was placed in a

quarantine unit in APTF and stayed there for 20 days before transferring to Bob

26

Wiley. (Doc. No. 44-22 at 13–14, ¶¶ 3–4.) Inmate Lopez was not tested for COVID-

19 despite the fact that she had been moved around within the quarantine unit five

27

times and had a new cellmate four times during those 20 days. (Id.)

28 ///// 24

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 25 of 40

1

• On October 8, 2020, inmate James Gonzalez, an inmate who had been temporarily

housed in the APTF infirmary for medical care related to a car accident he had prior to

2

being booked into the Jails on September 21, 2020, was tested for COVID-19. (Doc.

No. 44-21 at 5, ¶¶ 4–5.) Before receiving the test results, on October 12, 2020, he was

3

moved into unit 4-A in APTF, where he used the day room, phones, yard, and

socialized with inmate Benavidez. (Id. at ¶ 6; see also Doc. No. 44-20 at 24, ¶ 25.)

4

Two days later, deputies moved inmate Gonzalez and his cellmate to unit 3-A because

inmate Gonzalez had tested positive for COVID-19. (Doc. No. 44-20 at 24, ¶ 7.)

5

6

Plaintiffs also point to the declarations from several inmates who described various

7 instances where COVID-19 testing was denied to symptomatic inmates (Doc. No. 44 at 14–15),

8 including the following examples:

9

• In May 2020, inmate Francisco Arreola started experiencing flu-like symptoms,

difficulty breathing, and a dry cough. (Doc. No. 44-20 at ¶ 5.) Inmate Arreola

10

submitted a sick call slip and was seen by both a nurse and a medical provider that

same day, but he was not tested for COVID-19. (Id. at ¶¶ 6–7.) When he was seen

11

two weeks later for a chronic care appointment, he still had chest pain and a bad

cough, but he was not offered a COVID-19 test. (Id. at ¶ 8.) Inmate Arreola’s

12

symptoms did not subside, and he submitted several sick call slips and was seen by

medical staff in June, July, August, and September 2020, but he was not tested for

13

COVID-19. (Id. at ¶¶ 9–14.) On October 7, 2020, inmate Arreola was taken to the

hospital after passing out during a medical appointment and the doctor at the hospital

14

thought that inmate Arreola had the coronavirus because of his symptoms and tested

him at the hospital for COVID-19. (Id. at ¶ 15) Inmate Arreola declares that he never

15

got his test results and still does not know whether he had or has the virus. (Id.)

16

• On September 5, 2020, plaintiff Samuel Camposeco, an inmate in Bob Wiley, had a

light cough, felt chills, and felt tightness in his chest and throat. (Doc. No. 44-20 at

17

31, ¶ 11.) After some difficulty obtaining a sick call slip, on September 8, 2020,

plaintiff Camposeco submitted a sick call slip, in which he requested a COVID-19 test

18

and detailed his symptoms and the fact that he had been in a holding tank with

quarantined inmates in late October. (Id. at ¶¶ 10–13.) On September 11, 2020, he

19

was taken out of his cell for a sick call appointment, and he again requested a COVID-

19 test and told the nurse that he had a heavy cough, chills, trouble breathing, and a

20

sore throat. (Id. at ¶¶ 14–15.) The nurse told him that his symptoms were likely due

to the wildfires. (Id. at 15.) The nurse told plaintiff Camposeco that she would ask a

21

medical provider whether he could be tested because under Wellpath and TCSD

policies, an inmate could not be tested without approval from a medical provider. (Id.)

22

• On October 6, 2020, plaintiff Camposeco was seen by a doctor for a chronic care

23

appointment, and he asked for a COVID-19 test because he was still experiencing

chills, aches, shortness of breath, headaches, and severe shoulder pains. (Id. at ¶ 17.)

24

According to plaintiff Camposeco, the doctor told him that he did not need a COVID-

19 test and that not many inmates were being tested “because the tests were not

25

accurate and often led to false positives.” (Id.)

26 /////

27 /////

28 ///// 25

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 26 of 40

1

• On September 5, 2020, plaintiff Adam Ibarra, an inmate in Bob Wiley, submitted a

sick call slip and requested a COVID-19 test because he had a cough, sore throat,

2

headaches, and body aches. (Doc. No. 44-21 at 17, ¶ 12.) Two days later, plaintiff

Ibarra was seen by a nurse who treated him for a cold and told him that she would talk

3

to a medical provider about ordering a COVID-19 test for him. (Id.) Plaintiff Ibarra

did not hear anything back and was not tested for COVID-19. (Id.)

4

• On September 17, 2020, inmate Drew Kaupelis submitted a sick call slip and

5

requested a COVID-19 test because he “had a very sore throat and an earache.” (Doc.

No. 44-22 at 9, ¶ 7.) Four days later, he saw medical staff who told him that he could

6

not get a COVID-19 test because he did not have clear symptoms of COVID-19. (Id.)

7

• On September 11 and October 7, 2020, inmate Santos Moreno, an inmate in South

County, was seen by medical staff after he submitted sick call slips and requested a

8

COVID-19 test because he had body aches, headaches, cotton mouth, and trouble

breathing. (Doc. No. 44-23 at 14, ¶¶ 8–12.) Both times, medical staff took inmate

9

Moreno’s temperature and vitals and told him that he did not need a COVID-19 test.

(Id.)

10

11

Plaintiffs posit that “[p]art of the reason that so few symptomatic [inmates] have received

12 tests is because of Wellpath’s facially inadequate screening form, which requires multiple

13 symptoms before an [inmate] can even be referred to a medical provider to be evaluated for a

14 test.” (Doc. No. 44 at 29.) Plaintiffs emphasize that Wellpath’s continued use of this screening

15 criteria is even contrary to the medical opinion of Dr. Liberstein, Wellpath’s own Medical

16 Director and the sole doctor in the Jails, who testified at her deposition that in her medical

17 judgment, if a patient exhibits any of the symptoms that the CDC recognizes in its guidelines as 18 symptoms of coronavirus, then that patient has to be tested.15 (Doc. No. 44-10 at 3–4.) As

19 plaintiffs point out, Dr. Liberstein confirmed that the screening form’s criteria does not direct the

20 screener to refer inmates who are experiencing only one symptom of coronavirus to a medical

21 provider for evaluation, and that despite this fact, there have been no discussions about updating

22 the screening form to reflect that an inmate with even just one symptom should be referred for

23 evaluation. (Id. at 6–8.) Plaintiffs argue that defendant’s failure to oversee Wellpath and to

24 ensure implementation of an effective testing strategy in the Jails—a testing policy that ensures

25
26 15 At the hearing, defense counsel disputed plaintiffs’ characterization of Dr. Liberstein’s testimony and asserted that the context of the question posed to Dr. Liberstein in her deposition
27 was about the CDC guidelines and her understanding of what the CDC requires, and according to defendant, Dr. Liberstein was mistaken in this regard because the CDC guidelines do not require
28 that symptomatic individuals be tested for COVID-19. (Doc. No. 51 at 45–46, 54.)
26

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 27 of 40

1 that symptomatic inmates are tested for COVID-19—constitutes deliberate indifference. (Id. at

2 28–30.)

3

Accordingly, in the pending motion, plaintiffs request that the court order defendant to

4 stop using the supplemental screening form and instead provide testing to any inmate self-

5 reporting a symptom of COVID-19. (Doc. No. 44 at 10.) In addition, plaintiffs request that the

6 court order defendant to immediately conduct a one-time test of all inmates, as a remedy to the

7 harm already caused by defendant’s “ongoing and persistent failure to provide adequate testing”

8 in the Jails. (Id. at 10, 30.) Plaintiffs also seek a court order requiring defendant to identify the

9 medically vulnerable inmates and to “develop policies to affirmatively monitor them for COVID-

10 19.” (Id. at 10.)

11

In his opposition, defendant contends that plaintiffs are not likely to succeed on the merits

12 of their deliberate indifference claims—and thus injunctive relief is not warranted—because

13 TCSD has worked closely with HHSA and Wellpath to develop policies consistent with CDC

14 guidelines and to implement preventative measures, and those COVID-19 related policies have

15 been working. (Doc. No. 45-1 at 9.) In particular, defendant points to the “near perfect score”

16 when 135 inmates (75 from Bob Wiley, 52 from South County, and 8 from APTF) who were

17 overdue for a transfer to state prison in late October 2020, were tested and only one inmate tested

18 positive for COVID-19. (Id.; see also Doc. No. 45-4 at ¶¶ 31–32.) In addition, defendant points

19 to the many significant steps that TCSD has taken to reduce the risk of COVID-19 entering the

20 Jails: “[f]rom the new intake testing policy, to the now mandatory mask and face shield wearing

21 while inmates are out of their cells, to the enhanced social distancing, to the availability of

22 cleaning supplies, to the extra precautions in transportation, and even down to the decision to

23 change the air flow at APTF.” (Doc. No. 45-1 at 26–27.)

24

Defendant also asserts that TCSD relies on Wellpath “to make to make medical decisions

25 and use clinical judgment, and Wellpath’s policies regarding medical decision-making are doing

26 the job.” (Id. at 27.) According to defendant, “getting rid of the supplemental screening form and

27 giving COVID-19 tests to all who complain of one symptom runs against the exercise of clinical

28 judgment, which can also do far more harm than good.” (Id.) In support of this assertion, 27

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 28 of 40

1 defendant cites only to the declaration of Mr. Silveira, in which he declares that because

2 COVID-19 symptoms overlap with symptoms of other ailments, a provider “blindly” testing

3 inmates for COVID-19 just because they have one or more of those symptoms would lead the

4 provider to miss the actual diagnosis of other ailments and delay delivery of appropriate treatment

5 to the patient. (Doc. No. 45-4 at ¶ 15–18.) In Mr. Silveira’s opinion, that “would be a terrible

6 approach to medical care” and “probably cause more harm than good.” (Id. at ¶ 18.)

7

According to defendant, “Wellpath already tracks medically vulnerable inmates.” (Doc.

8 No. 45-1 at 27.) In his declaration, Mr. Silveira explains that Wellpath staff assess new inmates’

9 need for chronic care and develop a monitoring and treatment plan, and Wellpath maintains a

10 chronic care list to track the treatment of those inmates. (Doc. No. 45-4 at ¶ 36.) According to

11 Mr. Silveira, Wellpath’s “chronic care list overlaps with the CDC’s list of identified conditions

12 that make a person particularly vulnerable to COVID-19, with two exceptions; age and obesity.”

13 (Id. at ¶ 37.) In any event, defendant asserts that the CDC guidelines do not recommend that

14 detention facilities affirmatively monitor medically vulnerable inmates for COVID-19, which is

15 the relief plaintiffs seek in their pending motion. (Doc. No. 45-1 at 32.) Moreover, to the extent

16 plaintiffs request that defendant be ordered to cohort the medically vulnerable inmates in the

17 same housing, defendant asserts that such a task would be a “logistical nightmare” and

18 “impossible to accomplish,” in light of the many safety-related factors (e.g., gang affiliation, type

19 of criminal offense) that defendant must consider when determining where to house inmates.

20 (Id.)

21

Defendant also maintains that immediately conducting a one-time test of all inmates is not

22 a practical, effective, or reasonable available measure. (Doc. No. 45-1.) In his declaration, Mr.

23 Mitchell explained that COVID-19 tests from the Jails are processed by HHSA’s public health

24 laboratory (“HHSA Lab”), which performs COVID-19 testing Monday through Friday and is the

25 only regional laboratory currently processing COVID-19 tests for six regional counties. (Doc.

26 No. 45-3 at ¶¶ 11–16). According to Mr. Mitchell, the HHSA Lab has the capacity to run 300

27 tests per day (450 tests per day with overtime) and each sample requires approximately 12-16

28 hours to process. (Id. at ¶ 15.) Assuming the HHSA Lab prioritized inmate tests over first 28

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 29 of 40

1 responders and health care workers who currently have testing priority and processed tests seven

2 days a week, processing 1,200 inmate tests would take 20 days to complete. (Id. at ¶¶ 35–36.)

3 According to Mr. Mitchell, “[i]f the goal of such mass testing was to identify and separate out

4 contagious carriers of COVID-19, by the time we obtained all the test results, any inmate who

5 may be infected would no longer be contagious.” (Id. at ¶ 36.)

6

In reply, plaintiffs recognize that “[d]efendant has implemented some measures in

7 response to Plaintiffs’ lawsuit and [the TRO],” but they argue that “much more must be done to

8 satisfy constitutional requirements and mitigate the risk of COVID-19 in the Jails.” (Doc. No. 46

9 at 7.) Plaintiffs reiterate their position that defendant’s multi-step screening and evaluation

10 process has resulted in an “unconstitutional pattern and practice of denying medical care to

11 persons in need absent clinical medical judgment.” (Id. at 12.) In particular, plaintiffs counter

12 defendant’s assertion that testing inmates just because they have symptoms is somehow harmful.

13 (Doc. No. 46 at 13.) Rebutting one of Mr. Silveira’s examples, plaintiffs note that Mr. Silveira is

14 not a doctor and “seems to be unaware that a medical provider evaluating a patient with a sore

15 throat could do both simultaneously: order a COVID-19 test and screen for tonsillitis;” and “it is

16 axiomatic that medical providers often screen for and treat multiple possible conditions with

17 similar symptoms at the same time.” (Doc. No. 46 at 13.)

18

With regard to the testing of 135 inmates in October 2020, plaintiffs emphasize that

19 defendant did not initiate that testing event of his own accord; rather, he only tested those inmates

20 because CDCR required proof of a negative test in order to accept an inmate’s transfer to state

21 prison. (Id. at 14.) Moreover, according to plaintiffs, those testing results “are of limited use in

22 determining the prevalence of COVID-19 in the Jails, because the group tested (1) represented

23 only about 11% of the population, (2) was not a representative cross-section of the Jails’ general

24 population, and (3) provides only a snapshot of the unrepresentative sample at that moment in

25 time.” (Id.)

26

With regard to defendant’s assertion of logistical challenges in immediately testing all

27 inmates, plaintiffs assert that “costs and logistics cannot excuse a constitutional violation,” and

28 that Mr. Mitchell acknowledged potential alternatives in his declaration, including use of private 29

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 30 of 40

1 labs to process tests (where the county would have to pay $180 per test, compared to HHSA’s

2 expense of $80 per test) and use of a new California Department of Public Health laboratory that

3 recently opened in Valencia, CA, but is not yet fully online. (Id. at 46; see also Doc. No. 45-3 at

4 ¶¶ 17, 37.)

5

3. Analysis of Whether Plaintiffs are Likely to Succeed on the Merits

6

As an initial matter, the court focuses on the issue presented by plaintiffs’ pending motion.

7 The question here is not whether defendant can or should do more, or whether the court would

8 adopt different policies if it were in charge of the Jails. The question is about what defendant has

9 done to date, and whether those actions were objectively reasonable. As one district court

10 recently explained in denying injunctive relief to state prisoners who had alleged deliberate

11 indifference claims based on CDCR’s response to COVID-19:

12 No one questions the magnitude of the challenge that COVID-19

13

presents in a prison setting, and if the Court were in the Governor’s

or the Secretary’s position, it might adopt additional or different

14

measures. But the question before the Court is not what it thinks is

the best possible solution. Rather, the question is whether

15

Defendants’ actions to date are reasonable.

16 Plata v. Newsom, 445 F. Supp. 3d 557, 568 (2020). The test of objective reasonableness

17 “necessarily turns on the facts and circumstances of each particular case.” Roman v. Wolf, 977

18 F.3d 935, 943 n.5 (9th Cir. Oct. 13, 2020) (alterations and citation omitted). Although in the

19 TRO this court previously determined that plaintiffs were likely to succeed on the merits of their

20 deliberate indifference claims, that determination was based on the facts and circumstances

21 presented to the court by the parties at that time. (Doc. No. 26 at 7, 45.) Notably, plaintiffs’

22 evidentiary showing had then been limited due to defendant’s legal visitation policy, which

23 hindered class counsel’s ability to communicate with plaintiffs and putative class members. (Id.

24 at 3 n.1, 38–39.) For his part, defendant had at that time submitted only scant evidence, much of

25 which the court found puzzling and incomplete, and he had made no effort to refute the evidence

26 plaintiffs had submitted. (Id. at 12–16, 17 n.9.) As noted above, the parties have now submitted

27 a more fully developed factual record for the court to review, and it is on this evidentiary record

28 ///// 30

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 31 of 40

1 that the court now proceeds to evaluate whether defendant’s actions to date have been objectively

2 reasonable.

3

The court is also mindful of the Ninth Circuit’s recent guidance provided in Roman v.

4 Wolf. There, detainees had alleged that the conditions at the Adelanto immigration facility

5 “placed them at an unconstitutional risk of contracting COVID-19,” because it was too crowded

6 to social distance and

7

detainees had inadequate access to masks, guards were not required

to wear masks, there was not enough soap or hand sanitizer to go

8

around, detainees were responsible for cleaning the facility with

only dirty towels and dirty water, detainees were compelled to sleep

9

with less than six feet of distance between them, and not all new

arrivals were being properly quarantined or tested. 10

11 977 F.3d at 938, 943. In that context, the Ninth Circuit held that the district court had correctly

12 concluded that plaintiffs were likely to prevail on the merits of their claim because the

13 government’s “inadequate response reflected a reckless disregard for detainee safety.” Id. at 933–

14 34. The district court had ordered injunctive relief tailored to those conditions in Adelanto as of

15 mid-April, but in May, the Ninth Circuit stayed the preliminary injunction order except to the

16 extent it required compliance with the CDC’s guidelines for managing COVID-19 in correctional

17 and detention facilities. Id. at 945–46; see also Roman v. Wolf, No. 20-55436, 2020 WL

18 2188048, at *1 (9th Cir. May 5, 2020) (granting and denying part emergency motion to stay the

19 injunction pending appeal). On October 13, 2020, the Ninth Circuit vacated the injunction order

20 and remanded to the district court “to assess what relief current conditions may warrant,”

21 recognizing that the circumstances at Adelanto had changed in the five months during the

22 pendency of the appeal and “the facts that motivated the district court’s preliminary injunction no

23 longer reflect the current realities at Adelanto.” Id. at 945. In doing so, the Ninth Circuit also

24 made several “observations for the district court to consider on remand,” including that it is now

25 clear that the CDC guidelines do not provide a workable standard for a preliminary injunction

26 because they lack specificity and contain key caveats. Id. at 945–46. The Ninth Circuit also

27 reiterated that “the district court possesses broad equitable authority to remedy a likely

28 constitutional violation,” but cautioned against “micromanag[ing]” and “wad[ing] into facility 31

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 32 of 40

1 administration at a granular level beyond what is required to remedy the constitutional violation

2 identified.” Id. at 946.

3

Here, the court must first determine if plaintiffs are likely to succeed on the merits of their

4 claim that defendant’s actions constitute deliberate indifference—the constitutional violation—

5 before addressing the propriety of plaintiffs’ requested relief and proposed remedies. For the

6 reasons explained below, the court concludes that plaintiffs have not shown a likelihood of

7 success on the merits of their deliberate indifference claims at this time. Recognizing that the

8 situation with regard to COVID-19 in the Jails may rapidly change, however, the court will deny

9 plaintiffs’ motion for a preliminary injunction at this time without prejudice.

10

a. Adherence to Intake and Observation Policies

11

Plaintiffs do not appear to challenge the adequacy of defendant’s revised intake and

12 observation policies, as written. Rather, plaintiffs focus on defendant’s failure to strictly adhere

13 to those written policies. The court notes that defendant did not dispute in his opposition or at the

14 hearing on the pending motion that there were instances where his intake and observation policies

15 were not followed, as shown by the declarations submitted by plaintiffs.16 Nevertheless, the court

16 concludes that these occurrences, whether they be due to mistake or carelessness, do not rise to

17 the level of reckless disregard. To show objective deliberate indifference, a “mere lack of due

18 care” is not enough; a plaintiff must show “something akin to reckless disregard.” Roman, 977

19 F.3d at 943 (citing Gordon, 888 F.3d at 1125) (internal quotation marks omitted).

20

Moreover, the court finds the test results from the October 2020 testing of 135 inmates,

21 which yielded only one positive test, to be at least somewhat persuasive. While the court

22 understands plaintiffs’ concerns that this testing event is not a representative sample and only

23 provides a snapshot at that particular time, it stands to reason that the policies employed by

24 /////

25
26 16 The court is aware that defendant has called into question the veracity and credibility of some of the declarants based on their assertions of staff failing to comply with defendant’s mask policy,
27 which is not at issue in the pending motion. (Doc. No. 45-1 at 30, n.7) (noting that video surveillance footage directly refutes inmates’ declarations that TCSD personnel and Wellpath
28 staff were not wearing masks and face shields at specified dates, times, and locations).
32

Case 1:20-cv-01048-DAD-SAB Document 55 Filed 12/23/20 Page 33 of 40

1 defendant must have been effective at least to some extent for there to be a nearly zero positivity

2 rate for those 135 inmates tested at that time.

3

b. Testing of Symptomatic Inmates

4

The crux of plaintiffs’ deliberate indifference argument is that defendant has failed to test

5 symptomatic inmates, not just some of the time, but 95% of the time. Defendant does not dispute

6 this testing rate. Indeed, plaintiffs point not only to several declarations from inmates who were

7 repeatedly refused COVID-19 testing despite complaining of multiple symptoms, but also to

8 defendant’s testing records which confirm his incredibly low rate of testing reportedly

9 symptomatic inmates. It is baffling to the court that defendant stands behind a testing policy that

10 resulted in only 18 inmates who presented with symptoms being tested for COVID-19 between

11 April and September 2020, especially when ten of the only 18 to whom tests were administered

12 tested positive—a 56% test positivity rate.

13

At the hearing on the pending motion, defense counsel could not tell the court how many

14 inmates had been tested in October and November 2020 based solely on reporting symptoms,

15 though counsel suggested that the testing records attached to plaintiffs’ reply probably contained

16 that information, albeit in raw data form. (Doc. No. 51 at 7.) The court has reviewed those

17 updated records, which include testing data from the Jail through November 18, 2020 and reflect

18 that a total of six symptomatic inmates were tested outside of the intake process: one inmate was

19 tested in October, and five inmates were tested in November. (Doc. No. 46-11 at 19–30.) All six

20 of those inmates tested negative for COVID-19. (Id.) As far as the court can discern from those

21 records, it appears that of the five symptomatic inmates tested in November, two of those inmates

22 were housed in Bob Wiley, and one inmate was housed in South County. (Id.) Based on the data

23 from these most recent months, it appears that the rate of testing symptomatic inmates in the Jails

24 may be trending in a more positive direction, though the court remains concerned about what may

25 be causing the overall low rate of testing symptomatic inmates.

26

Even more concerning to the court is that defendant has attempted to justify this low

27 testing rate by relying on Mr. Silveira’s highly questionable suggestion that testing symptomatic

28 inmates for COVID-19 would lead to missed diagnoses of other ailments whose symptoms 33

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1 overlap with COVID-19 symptoms. At the hearing, defense counsel clarified that despite

2 defendant’s assertion in his opposition brief that testing symptomatic inmates for COVID-19 may

3 cause more harm than good, defendant’s position is actually that he must be able to rely on the

4 clinical judgment of the medical professionals in determining whether an inmate needs to be

5 tested for COVID-19. (Doc. No. 51 at 32–37.) Thus, defendant maintains that his low testing

6 rate of symptomatic inmates is justified, but he clarified that his justification is based on the

7 purported exercise of clinical judgment, not based upon Mr. Silveira’s opinion.

8

To the extent defendant relies on the medical judgment of Wellpath providers who

9 evaluate inmates and decide in their clinical judgment whether any particular inmate should be

10 tested for COVID-19, that process only functions appropriately if the inmate is actually referred

11 to the provider for such an evaluation. While the court agrees with plaintiffs that the

12 supplemental screening form does not direct Wellpath staff to refer an inmate to a provider for an

13 evaluation unless the inmate is experiencing multiple symptoms, it is not clear that Wellpath staff

14 utilize the form in restrictive this manner. Dr. Liberstein’s deposition testimony acknowledged

15 that the form says what it says, but she also appeared to imply that in practice, she is usually

16 notified even if an inmate only presented with a high fever, for example. (See Doc. No. 44-10 at

17 6–8.) Further, many of the inmates who submitted declarations describing instances of defendant

18 refusing to test them for COVID-19, despite them suffering from multiple symptoms, were in fact

19 ultimately seen by a provider. In other words, those inmates were not blocked at the screening

20 stage from proceeding to be evaluated by a medical provider. There remain several unanswered

21 questions, including whether the providers have actually exercised their clinical judgment in

22 deciding whether to order a COVID-19 test for an inmate, or if Wellpath had directed providers to

23 refrain from ordering COVID-19 tests for inmates if possible, as plaintiff Camposeco’s

24 declaration suggests. (See Doc. No. 44-20 at 33, ¶ 17) (declaring that the medical provider told

25 him that “they were not testing many people [in the Jails], because the tests were not accurate and

26 often led to false positives”). It may be that the parties will decide to address these questions in

27 further discovery.

28 ///// 34

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1

“Deliberate indifference ‘may appear when prison officials deny, delay or intentionally

2 interfere with medical treatment, or it may be shown by the way in which prison physicians

3 provide medical care.’” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (quoting

4 Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). Further, “[i]n deciding whether

5 there has been deliberate indifference to an inmate’s serious medical needs, [courts] need not

6 defer to the judgment of prison doctors or administrators.” Hunt v. Dental Dep’t, 865 F.2d 198,

7 200 (9th Cir. 1989).

8

In the court’s view, while defendant’s testing rate of symptomatic inmates is shockingly

9 low, this alone does not support a finding that plaintiffs are likely to succeed on the merits of their

10 deliberate indifference claim, particularly in light of defendant’s implementation of many other

11 measures designed to prevent the spread of COVID-19 in the Jails. At the hearing, plaintiffs also

12 argued that defendant’s failure to test TCSD staff for COVID-19 constitutes deliberate

13 indifference. (Doc. No. 51 at 23, 27.) While the testing records filed with the court show that

14 TSCD staff are not tested for COVID-19, those records also reflect that Wellpath staff do receive

15 COVID-19 testing (see Doc. No. 46-11 at 2), thereby undercutting plaintiffs’ argument in this

16 regard to some extent. In addition, many of the measures implemented by defendant are

17 specifically targeted at staff (e.g., defendant’s policies requiring TCSD staff to self-report

18 symptoms and not come to work if they are symptomatic, to wear masks, to have their

19 temperatures checked upon entering the Jails). Again, the court is particularly mindful that the

20 question before it is not whether the court would implement different or better testing policies at

21 the Jail, but rather whether defendant’s actions in response to COVID-19 have been reasonable.

22

The court concludes based upon the evidence currently before it that plaintiffs have not

23 shown a likelihood of success on the merits of their deliberate indifference claims. Accordingly,

24 the court and will deny plaintiff’s motion for a preliminary injunction without prejudice.

25

c. Medically Vulnerable Inmates

26

The court is not persuaded by plaintiffs’ arguments regarding defendant’s purported

27 failure to adequately monitor medically vulnerable inmates. Wellpath’s chronic care list does

28 overlap substantially with plaintiffs proposed medically vulnerable subclass, and Wellpath staff 35

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1 employ its chronic care list to monitor and track the treatment of inmates who have chronic care

2 needs. Plaintiffs have not presented any evidence at this time to show that Wellpath’s process in

3 this regard is inadequate. In light of defendant’s process for tracking and monitoring inmates

4 who need chronic care, plaintiffs have not demonstrated that they are likely to succeed in showing

5 that defendant’s failure to also track inmates who are obese or over age 65 but are not in need of

6 chronic care, constitutes a reckless disregard for all medically vulnerable inmates.

7

Moreover, although plaintiffs refer to several cases in which courts have ordered

8 injunctive relief for medically vulnerable inmates (Doc. No. 44 at 32), the facts and circumstances

9 that led the courts to find deliberate indifference in those cases are not similar to defendant’s

10 actions in this case. In Martinez-Brooks, for instance, the court found that because there was a

11 serious, active outbreak of COVID-19 in a federal correctional institution with dormitory-style

12 housing, and because “Congress has provided statutory authority for, and the Attorney General

13 has directed the warden to ‘immediately’ implement, the broad use of home confinement for

14 vulnerable inmates . . . the warden’s failure to make prompter, broader use of this authority to

15 protect the lives of vulnerable inmates is likely to constitute deliberate indifference.” Martinez-

16 Brooks v. Easter, 459 F. Supp. 3d 411, 439–443 (D. Conn. 2020). Similarly, in Torres v.

17 Milusnic, No. 20-cv-4450-CBM-PVC, 2020 WL 4197285, at *18 (C.D. Cal. July 14, 2020), the

18 court concluded that the federal prisoners confined in FCI Lompoc and USP Lompoc were likely

19 to succeed on their Eighth Amendment claims because the warden at those prisons failed “to

20 make meaningful use of the home confinement authority as expanded by the CARES Act or

21 compassionate release which takes into account Lompoc inmates’ risk for severe illness or death

22 from COVID-19.” Unlike the wardens in these cases who failed to meaningfully and promptly

23 exercise their home confinement authority to protect vulnerable inmates, plaintiffs in this case

24 have not pointed to a comparable statutory authority that TCSD is failing utilize in the Jails in

25 order to address the risks posed by the virus. Finally, in Alcantara v. Archambeault, No. 20-cv-

26 0756-DMS-AHG, 2020 WL 2315777, at *8–9 (S.D. Cal. May 1, 2020), the court found that

27 immigration detainees were likely to succeed on their Fifth Amendment substantive due process

28 claim because in light of the COVID-19 outbreak at their detention facility, their continued 36

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1 confinement amounted to punishment and was “excessive in relation to its purpose, namely

2 preventing danger to the community and ensuring appearance at deportation hearings.” Unlike

3 the immigration detention facility at issue in Alcantara, plaintiffs have not shown that there is a

4 severe outbreak of COVID-19 in the Jails and that the conditions of confinement there amounts to

5 punishment or is excessive in relation to its purpose. Thus, plaintiffs’ reliance on the holdings in

6 these cases is therefore unavailing.

7

Accordingly, the court will deny plaintiffs’ request for injunctive relief related to their

8 proposed subclass of medically vulnerable inmates.

9

4. Social Distancing Policy Arguments

10

The court notes at the outset that plaintiffs are not challenging defendant’s social

11 distancing directives as outlined in section 716.3 of TCSD’s Coronavirus Prevention and

12 Protection Policy, a copy of which defendant filed with the court on September 8, 2020 in

13 compliance with the TRO issued by this court. (See Doc. Nos. 27 at ¶ 2.a.; 27-1 at 3–4.) Rather,

14 plaintiffs have challenged defendant’s implementation of a different policy than that reflected in

15 those directives, in which defendant reduced inmates’ out-of-cell programming time to 30

16 minutes (for Bob Wiley and APTF) and 60 minutes (for South County) for six days each week.

17 (See Doc. Nos. 45-6 at ¶¶ 23–25, 27; 45-9 at ¶ 10; 45-8 at ¶ 9.) Although the decision to limit

18 programming time in this manner was made in mid-July 2020 (see Doc. No. 45-9 at ¶ 9), defense

19 counsel was unable to explain at the hearing on the pending motion why this decision was not

20 reflected in the written policy filed with the court on September 8, 2020. (Doc. No. 51 at 42–44.)

21

Plaintiffs argue in their pending motion that defendant’s social distancing policy is

22 punitive and deprives inmates of their right to physical exercise in violation of the Eighth and

23 Fourteenth Amendments and Title 15 of the California Code of Regulations. (See Doc. No. 44 at

24 34–37.) However, plaintiffs have not alleged such a claim in their complaint nor have they

25 sought leave to amend their complaint to add such a claim. For this reason, defendant asserts that

26 plaintiffs’ argument in this regard “is not a cognizable ground upon which the motion for

27 injunctive relief may be premised.” (Doc. No. 45-1 at 33.) The court agrees. See Devose v.

28 Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (holding that “a party moving for a preliminary 37

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1 injunction must necessarily establish a relationship between the injury claimed in the party’s

2 motion and the conduct asserted in the complaint”); Pac. Radiation Oncology, LLC v. Queen’s

3 Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015) (adopting the rule of Devose and requiring “a

4 sufficient nexus between the claims raised in a motion for injunctive relief and the claims set

5 forth in the underlying complaint itself,” and explaining that “[a]bsent that relationship or nexus,

6 the district court lacks authority to grant the relief requested.”)17 In Devose, the Eight Circuit

7 found that the plaintiff’s motion was “based on new assertions of mistreatment that are entirely

8 different from the claim raised and the relief requested in his inadequate medical treatment

9 lawsuit,” and thus could not “provide the basis for a preliminary injunction” even though those

10 “new assertions might support additional claims against the same prison officials.” 42 F.3d at

11 471.

12

While plaintiffs attempt to save their argument in support of injunctive relief on their new

13 claim in reply by pointing to the relief requested in their complaint (Doc. No. 46 at 18), the court

14 finds that the single reference in their operative complaint upon which they rely to be unavailing.

15 Plaintiffs point to only one paragraph in the “Requested Relief” section of their complaint, in

16 which they request that defendant be ordered to “[e]nsure that individuals identified as having

17 COVID-19 or having been exposed to COVID-19 are properly quarantined in a non-punitive

18 setting with continued access to showers, recreation, mental health services, reading materials,

19 commissary, phone and video visitation with loved ones, communication with counsel, and

20 personal property.” (Doc. No. 1 at 47, ¶ 14.)

21 /////

22 /////

23 /////

24 /////

25 /////

26 17 In Pacific Radiation Oncology, LLC, the Ninth Circuit concluded that the district court 27 properly ruled that the plaintiff’s motion for injunctive relief related to an unpled claim of injury
to patients’ privacy rights was unrelated to its underlying complaint alleging unfair trade 28 practices. 810 F.3d at 638.
38

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1

Simply put, the issue of whether defendant is complying with Title 15 by providing

2 inmates the required amount of exercise time is not related to plaintiffs’ complaint, which seeks

3 relief only related to defendant’s COVID-19 policies. Indeed, apparently recognizing this in their

4 reply, plaintiffs “request the opportunity to submit a supplemental pleading addressing these

5 issues.” (Doc. No. 46 at 20.) However, plaintiffs’ request in this regard does not comply with

6 Federal Rule of Civil Procedure 15, which provides:

7

On motion and reasonable notice, the court may, on just terms,

permit a party to serve a supplemental pleading setting out any

8

transaction, occurrence, or event that happened after the date of the

pleading to be supplemented. The court may permit

9

supplementation even though the original pleading is defective in

stating a claim or defense. The court may order that the opposing

10

party plead to the supplemental pleading within a specified time.

11 Fed. R. Civ. P. 15(d). Plaintiffs have not filed a noticed motion requesting permission to file a

12 supplemental pleading; they have instead improperly included such a request in their reply brief.

13 Thus, the court will deny plaintiffs’ request, without prejudice to plaintiffs moving for permission

14 to serve a supplemental pleading, as they indicated at the hearing they intend to do. (Doc. No. 51

15 at 48–49.)

16

Accordingly, the court will deny plaintiffs’ request for injunctive relief related to

17 defendant’s social distancing policy because such a claim has not been properly alleged in the

18 operative complaint before the court. However, the court’s denial of this request should not be

19 construed as a decision on the substance of the parties’ arguments, which the court has not

20 reached or evaluated.

21 /////

22 /////

23 /////

24 /////

25 /////

26 /////

27 /////

28 ///// 39

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1

CONCLUSION

2

For the reasons explained above, plaintiffs’ motion for provisional class certification

3 (Doc. No. 43) and motion for a preliminary injunction (Doc. No. 44) are denied without 4 prejudice.18

5 IT IS SO ORDERED.
6
Dated: December 22, 2020
7

UNITED STATES DISTRICT JUDGE

8

9

10

11

12

13

14

15

16

18 On December 21, 2020, while the court was finalizing this order, the parties filed an update 17 with the court regarding recent testing of inmates incarcerated in unit Mod-22 at Bob Wiley.

18

(Doc. Nos. 52, 53.) On the morning of December 21, 2020, plaintiffs filed an ex parte application seeking leave to supplement the evidentiary record with the following: (i) the BSCC report for

19 the reporting period of December 6, 2020 through December 12, 2020, showing that 70 inmates in Bob Wiley were tested for COVID-19 and 38 of those inmates tested positive for the virus; (ii)

20 a declaration from an inmate currently housed in Bob Wiley’s Mod-22 who tested positive for

COVID-19 on December 18, 2020; and (iii) a supplemental declaration from Mr. Dylan Verner21 Crist, in which he describes his communications with family members of inmates who are

22 currently incarcerated in Mod-22 and are concerned for their safety. (Doc. No. 52.) In the late afternoon of December 21, 2020, defendant filed a status report providing several details about

23 the recent testing of inmates in Mod-22, the significant percentage of positive test results obtained

and the actions that defendant is taking in response. (Doc. No. 53.) It is clear to the court that the

24 parties have not had an adequate opportunity to consider and discuss these latest developments

and the actions that TCSD is taking in response. Thus, the court concludes that it is premature for 25 it to weigh in regarding these recent developments or to evaluate the adequacy and

26 reasonableness of defendant’s response to them. Most importantly, as recognized above, the circumstances posed by the COVID-19 pandemic are ever-changing and conditions in the Jails

27 are likely to evolve as well. This is why the court is denying plaintiffs’ pending motion for a

preliminary injunction without prejudice to plaintiffs renewing their request if sufficient evidence

28 of changed conditions and the adequacy of defendant’s response thereto becomes available.

40