U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:20-cv-00901-DJH-DMF

Romero-Lorenzo et al v. Koehn et al Assigned to: Judge Diane J Humetewa Referred to: Magistrate Judge Deborah M Fine Cause: 42:1983 Prisoner Civil Rights

Date Filed: 05/08/2020 Jury Demand: Both Nature of Suit: 555 Prisoner: Prison Condition Jurisdiction: U.S. Government Defendant

Plaintiff
Maria Guadalupe LuceroGonzalez each individually and on behalf of all others similarly situated TERMINATED: 11/03/2020

represented by Alejandro Agustin Ortiz ACLU - New York, NY 125 Broad St., 18th Fl. New York, NY 10004 212-549-2500 Fax: 212-549-2654 Email: ortiza@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Benjamin C Calleros Perkins Coie LLP - Phoenix, AZ 2901 N Central Ave., Ste. 2000 Phoenix, AZ 85012 602-351-8174 Email: bcalleros@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emma A Andersson ACLU - New York, NY 125 Broad St., 18th Fl. New York, NY 10004 212-284-7365 Fax: 212549-2654 Email: eandersson@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jean-Jacques Cabou

Perkins Coie LLP - Phoenix, AZ 2901 N Central Ave., Ste. 2000 Phoenix, AZ 85012 602-351-8000 Fax: 602-648-7000 Email: jcabou@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margo Rose Casselman Perkins Coie LLP - Phoenix, AZ 2901 N Central Ave., Ste. 2000 Phoenix, AZ 85012 602-351-8159 Fax: 602-648-7161 Email: mcasselman@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Robert Koerner Perkins Coie LLP - Phoenix, AZ 2901 N Central Ave., Ste. 2000 Phoenix, AZ 85012 602-351-8000 Fax: 602-648-7000 Email: mkoerner@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Somil Bharat Trivedi ACLU - Washington DC 915 15th St. NW, 7th Fl. Washington, DC 20005 202-904-7727 Email: strivedi@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Dean Ryerson Perkins Coie LLP - Phoenix, AZ 2901 N Central Ave., Ste. 2000 Phoenix, AZ 85012 602-351-8000 Fax: 602-648-7048

Plaintiff
Claudia Romero-Lorenzo each individually and on behalf of all others similarly situated

Email: tryerson@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christine Keeyeh Wee ACLU - Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602-650-1854 Email: cwee@acluaz.org ATTORNEY TO BE NOTICED
Jared G Keenan ACLU - Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602-650-1854 Email: jkeenan@acluaz.org ATTORNEY TO BE NOTICED
represented by Alejandro Agustin Ortiz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin C Calleros (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corene T Kendrick ACLU - Washington DC 915 15th St. NW, 7th Fl. Washington, DC 20005 202-393-4930 Email: ckendrick@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David Cyrus Fathi ACLU - Washington DC 915 15th St. NW, 7th Fl. Washington, DC 20005

202-548-6609 Fax: 202-393-4931 Email: dfathi@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emma A Andersson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jean-Jacques Cabou (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margo Rose Casselman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Carter ACLU - New York, NY 125 Broad St., 18th Fl. New York, NY 10004 646-885-8344 Email: MCarter@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Robert Koerner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Milo Rohr Inglehart ACLU - New York, NY 125 Broad St., 18th Fl. New York, NY 10004 718-954-7388 Email: minglehart@aclu.org LEAD ATTORNEY PRO HAC VICE

Plaintiff
Tracy Ann Peuplie each individually and on behalf of all others similarly situated

ATTORNEY TO BE NOTICED
Somil Bharat Trivedi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Dean Ryerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christine Keeyeh Wee (See above for address) ATTORNEY TO BE NOTICED
Jared G Keenan (See above for address) ATTORNEY TO BE NOTICED
represented by Alejandro Agustin Ortiz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin C Calleros (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corene T Kendrick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David Cyrus Fathi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emma A Andersson

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jean-Jacques Cabou (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margo Rose Casselman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Carter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Robert Koerner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Milo Rohr Inglehart (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Somil Bharat Trivedi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Dean Ryerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christine Keeyeh Wee (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
James Tyler Ciecierski each individually and on behalf of all others similarly situated

Jared G Keenan (See above for address) ATTORNEY TO BE NOTICED
represented by Alejandro Agustin Ortiz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin C Calleros (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corene T Kendrick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David Cyrus Fathi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emma A Andersson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jean-Jacques Cabou (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margo Rose Casselman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Carter

Plaintiff
Marvin Lee Enos each individually and on behalf of all others similarly situated

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Robert Koerner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Milo Rohr Inglehart (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Somil Bharat Trivedi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Dean Ryerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christine Keeyeh Wee (See above for address) ATTORNEY TO BE NOTICED
Jared G Keenan (See above for address) ATTORNEY TO BE NOTICED
represented by Alejandro Agustin Ortiz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin C Calleros (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Corene T Kendrick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David Cyrus Fathi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emma A Andersson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jean-Jacques Cabou (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margo Rose Casselman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Carter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Robert Koerner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Milo Rohr Inglehart (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
Brian Koehn Warden of the Central Arizona Florence Correctional Complex

Somil Bharat Trivedi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Dean Ryerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christine Keeyeh Wee (See above for address) ATTORNEY TO BE NOTICED
Jared G Keenan (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Patrick Struck Struck Love Bojanowski & Acedo PLC 3100 W Ray Rd., Ste. 300 Chandler, AZ 85226 480-420-1600 Email: dstruck@strucklove.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob Brady Lee Struck Love Bojanowski & Acedo PLC 3100 W Ray Rd., Ste. 300 Chandler, AZ 85226 480-420-1641 Fax: 480-420-1696 Email: JLee@strucklove.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas Daniel Acedo Struck Love Bojanowski & Acedo

Defendant David Gonzales U.S. Marshal for the District of Arizona, in their official capacities
Defendant Donald W Washington Director of the U.S. Marshals Service, in their official capacities
Defendant Michael Carvajal Director of the Federal Bureau of Prisons, in their official capacities

PLC 3100 W Ray Rd., Ste. 300 Chandler, AZ 85226 480-420-1600 Email: NAcedo@strucklove.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Love Struck Love Bojanowski & Acedo PLC 3100 W Ray Rd., Ste. 300 Chandler, AZ 85226 480-420-1600 Fax: 480-420-1696 Email: RLove@strucklove.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Charles Staes US Attorneys Office - Phoenix, AZ 2 Renaissance Square 40 N Central Ave., Ste. 1800 Phoenix, AZ 85004-4408 602-514-7659 Email: william.staes@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Charles Staes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Charles Staes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

05/08/2020 1

PRISONER CIVIL RIGHTS COMPLAINT (TRO Requested). Filing fee received: $ 400.00, receipt number 0970-18265715 filed by Tracy Ann Peuplie, Claudia Romero-Lorenzo, James Tyler Ciecierski, Maria Guadalupe Lucero-Gonzalez, Marvin Lee Enos. (Koerner, Matthew) (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(MCO) (Entered: 05/11/2020)

05/08/2020 2

* MOTION for Temporary Restraining Order by James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe Lucero-Gonzalez, Tracy Ann Peuplie, Claudia Romero-Lorenzo. (Koerner, Matthew) (Attachments: # 1 Text of Proposed Order)(MCO). * Added MOTION for Preliminary Injunction on 5/11/2020 (LAD). (Entered: 05/11/2020)

05/08/2020

3 MOTION to Certify Class (Motion for Class Certification and Memorandum in Support) by James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe Lucero-Gonzalez, Tracy Ann Peuplie, Claudia Romero-Lorenzo. (Koerner, Matthew) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Text of Proposed Order)(MCO) (Entered: 05/11/2020)

05/08/2020 4

NOTICE OF ASSIGNMENT (MCO) (Entered: 05/11/2020)

05/11/2020

5 SUMMONS Submitted by James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe Lucero-Gonzalez, Tracy Ann Peuplie, Claudia Romero-Lorenzo. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(Koerner, Matthew) (Entered: 05/11/2020)

05/11/2020 6

ORDER - Plaintiffs' Motion for a Temporary Restraining Order and
Preliminary Injunction (Doc. 2 ) is denied to the extent it seeks a temporary restraining order without notice to Defendants. If Plaintiffs do not obtain a waiver of service of the summons or complete service of the Summons and Complaint on a Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii). Defendants must respond to the Motion for Class

Certification (Doc. 3 ) and answer the Complaint (Doc. 1 ) or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. Any answer or response must state the specific Defendant by name on whose behalf it is filed. NO LATER than 5:00 p.m. on THURSDAY, MAY 14, 2020, Defendants must RESPOND to the

05/11/2020
05/12/2020 05/12/2020 05/12/2020 05/12/2020 05/13/2020

Motion for Temporary Restraining Order and Preliminary Injunction. Plaintiffs may file a reply no later than 5:00 p.m. on Friday, May 15, 2020. The Clerk of Court must send a copy of this Order to counsel for CoreCivic, Daniel P. Stuck, by email to dstruck@strucklove.com, and by certified mail to: Daniel P. Struck, Struck Love Bojanowski & Acedo PLC, 3100 W Ray Rd., Ste. The Clerk of Court must also send a copy of this Order by email to the United States Attorney for the District of Arizona, to the attention of Peter M. Lantka at peter.lantka@usdoj.gov and Mary Finlon at mary.finlon@usdoj.gov. This matter is referred to Magistrate Judge Deborah M. Fine pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). (See document for further details). Signed by Judge Diane J Humetewa on 5/11/2020. (LAD) (Entered: 05/11/2020)
8 Summons Issued as to Michael Carvajal, David Gonzales, Kris Kline, Donald W Washington. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(LAD). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (4 total) (Entered: 05/11/2020)
Remark: Pro hac vice motion(s) granted for Emma A Andersson on behalf of Plaintiffs James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe Lucero-Gonzalez, Tracy Ann Peuplie, and Claudia Romero-Lorenzo. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 05/12/2020)
9 NOTICE of Appearance by Christine Keeyeh Wee on behalf of James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe LuceroGonzalez, Tracy Ann Peuplie, Claudia Romero-Lorenzo. (Wee, Christine) (Entered: 05/12/2020)
10 NOTICE of Appearance by Daniel Patrick Struck on behalf of Kris Kline. (Struck, Daniel) (Entered: 05/12/2020)
11 NOTICE of Appearance by Jared G Keenan on behalf of James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe LuceroGonzalez, Tracy Ann Peuplie, Claudia Romero-Lorenzo. (Keenan, Jared) (Entered: 05/12/2020)
12 MOTION for Leave to File Excess Pages for Respondent Kline's Opposition to Motion for Preliminary Injunction by Kris Kline. (Attachments: # 1 Text of Proposed Order)(Acedo, Nicholas) (Entered: 05/13/2020)

05/14/2020

13 NOTICE OF ATTORNEY APPEARANCE: Wiliam C. Staes appearing for Michael Carvajal, David Gonzales, Donald W Washington. . (Staes, William) (Entered: 05/14/2020)

05/14/2020 14

ORDER that the referral to the Magistrate Judge is withdrawn as to Defendants' 12 Motion for Leave to Exceed Page Limit. ORDERED granting the 12 Motion for Leave to Exceed Page Limit. Signed by Judge Diane J Humetewa on 5/14/2020. (LFIG) (Entered: 05/14/2020)

05/14/2020

15 SUMMONS Submitted by James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe Lucero-Gonzalez, Tracy Ann Peuplie, Claudia Romero-Lorenzo. (Attachments: # 1 Summons)(Koerner, Matthew) (Entered: 05/14/2020)

05/14/2020 16

RESPONSE to Motion re: 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction, 12 MOTION for Leave to File Excess Pages for Respondent Kline's Opposition to Motion for Preliminary Injunction filed by Kris Kline. (Attachments: # 1 Declaration of Chief Deputy USMS Van D. Bayless, # 2 Declaration of K. Ivens, M.D., F.A.C.C.P. (w/Attachment 01), # 3 Declaration of Warden K. Kline, # 4 Attachments 01-11 to Declaration of Warden K. Kline, # 5 Attachments 12-18 to Declaration of Warden K. Kline, # 6 Attachements 19-27 to Declaration of Warden K. Kline, # 7 Attachments 28-32 to Declaration of Warden K. Kline, # 8 Declaration of A. Partain (w/Attachments 01-07))(Acedo, Nicholas) (Entered: 05/14/2020)

05/15/2020 17

Summons Issued as to U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Summons)(BAS) (Entered: 05/15/2020)

05/15/2020 18

REPLY to Response to Motion re: 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe LuceroGonzalez, Tracy Ann Peuplie, Claudia Romero-Lorenzo. (Attachments: # 1 Exhibit)(Koerner, Matthew) (Entered: 05/15/2020)

05/18/2020 19

ORDER that the referral to the Magistrate Judge is withdrawn as to Plaintiffs' Motion for Temporary Restraining Order and Preliminary

Injunction (Doc. 2 ). ORDERED setting a Telephonic Hearing re: Plaintiffs' Motion for Temporary Restraining Order and

Preliminary Injunction (Doc. 2 ) for 5/22/2020 at 10:00 AM

05/18/2020 05/19/2020 05/19/2020
05/21/2020

(Arizona Time) in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Diane J Humetewa. Counsel will receive dial-in instructions for the teleconference separately via electronic mail. ORDERED the parties must meet and confer prior to the hearing in order to agree upon an expert willing and able to immediately serve as a Rule 706 expert should the Court grant Plaintiffs' Motion. IT IS FURTHER ORDERED that if any member of the public wishes to listen to the telephonic hearing, they shall contact chambers via electronic mail to request dial-in instructions to listen to the hearing. All other matters must remain with the Magistrate Judge for disposition as appropriate. Signed by Judge Diane J Humetewa on 5/18/2020. (See Order for details.) (LFIG) (Entered: 05/18/2020)
20 SERVICE EXECUTED : Certified Mail Receipt re: Order upon Daniel Struck on 5/14/2020. (CLB) (Entered: 05/19/2020)
Remark: Pro hac vice motion(s) granted for Alejandro Agustin Ortiz on behalf of Plaintiffs James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe Lucero-Gonzalez, Tracy Ann Peuplie, and Claudia Romero-Lorenzo. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 05/19/2020)
21 NOTICE of Errata re: 16 Response to Motion Re: (Corrected) Index to Attachments of Declaration of K. Kline (Doc. 16-4, pgs. 12) by Defendant Kris Kline.. (Attachments: # 1 Exhibit 1 - Index to Attachments of Declaration of K. Kline (Doc 16-4) - Corrected)(Lee, Jacob) (Entered: 05/19/2020)
22 MINUTE ORDER: The Court has received inquiries from media representatives who wish to listen to the May 22, 2020, telephonic hearing. Although the standard is that federal district courts may not broadcast their proceedings, the Executive Committee of the Judicial Conference recently issued a guidance document that "approve[s] a temporary exception to the policy to allow a judge to authorize the use of teleconference technology to provide the public and the media audio access to court proceedings while public access to federal courthouses generally, or with respect to a particular district, is restricted due to health and safety concerns during the Coronavirus Disease (COVID-19) pandemic." Given this development, public access to the May 22, 2020 telephonic hearing will be permitted. Members of the media seeking access are directed to email: AZDPIO@azd.uscourts.gov to obtain dialing instructions. Participants and listeners are reminded that audio recording the proceedings

is prohibited. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (LFIG) (Entered: 05/21/2020)

05/21/2020

23 NOTICE re: Joint Supplemental Declarations in Support of Joint Response in Opposition to Motion for Temporary Restraining Order

and Preliminary Injunction by Kris Kline re: 2 MOTION for Temporary Restraining Order MOTION for Preliminary

Injunction, 21 Notice of Errata, 18 Reply to Response to

Motion, 16 Response to Motion . (Attachments: # 1

05/22/2020

Supplemental Declaration of Warden K. Kline, # 2 Supplemental Declaration of A. Partain)(Acedo, Nicholas) (Entered: 05/21/2020)
24 NOTICE re: Supplemental Authority Re: Exhaustion (Joint) by Michael Carvajal, David Gonzales, Donald W Washington, Kris

Kline re: 16 Response to Motion. (Acedo, Nicholas) *Modified to add filer on 5/22/2020 (DXD). (Entered: 05/22/2020)

05/22/2020 25

NOTICE re: Notice of Proposed Rule 706 Expert and Objections (Joint) by Michael Carvajal, David Gonzales, Kris Kline, Donald W

Washington re: 19 Order, Set/Reset Hearings . (Attachments:

# 1 Exhibit 1-3)(Acedo, Nicholas) (Entered: 05/22/2020)

05/22/2020

26 MINUTE ENTRY for proceedings held before Judge Diane J Humetewa: Telephonic Temporary Restraining Order/Preliminary

Injunction Hearing held on 5/22/2020 re: Plaintiffs' 2 Motion. Arguments heard. IT IS ORDERED taking this matter under advisement.

APPEARANCES: Telephonic appearances by Matthew Koerner, Emma Andersson, Jean-Jacques Cabou, Benjamin Calleros, Margo Casselman, Jared Keenan, Christine Wee, Alejandro Ortiz for Plaintiffs. Telephonic appearances by Nicholas Acedo and Jacob Lee for Defendants. Telephonic appearance by William Staes for the Federal Defendants. (Court Reporter Linda Schroeder.) Hearing held 9:59 AM to 11:23 AM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (LFIG) (Entered: 05/22/2020)

05/22/2020

27 NOTICE re: Identity of Petitioner Claudia Romero-Lorenzo (Joint) by Michael Carvajal, David Gonzales, Kris Kline, Donald W

Washington re: 16 Response to Motion . (Attachments: # 1 Exhibit 1-2)(Acedo, Nicholas) (Entered: 05/22/2020)

05/22/2020 28

NOTICE re: Plaintiffs' Proposed Rule 706 Expert and Objections by James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe LuceroGonzalez, Tracy Ann Peuplie, Claudia Romero-Lorenzo . (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Cabou, Jean-Jacques) (Entered: 05/22/2020)

06/02/2020 29

ORDER that the reference to the Magistrate Judge is withdrawn as to
Plaintiffs' 2 Motion for Temporary Restraining Order and Preliminary Injunction. ORDERED denying Plaintiffs' 2

Motion for Temporary Restraining Order and Preliminary Injunction. All other matters must remain with the Magistrate Judge for disposition as appropriate. Signed by Judge Diane J Humetewa on 6/2/2020. (See Order for details.) (LFIG) (Entered: 06/02/2020)

06/03/2020

30 TRANSCRIPT REQUEST of Hearing held on 5/22/2020 by James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe LuceroGonzalez, Tracy Ann Peuplie, Claudia Romero-Lorenzo for proceedings held on 5/22/2020, Judge Diane J Humetewa hearing judge(s). (Koerner, Matthew) (Entered: 06/03/2020)

06/03/2020

31 TRANSCRIPT REQUEST Amended to reflect daily rate by James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe LuceroGonzalez, Tracy Ann Peuplie, Claudia Romero-Lorenzo for proceedings held on 5/22/2020, Judge Diane J Humetewa hearing judge(s). (Koerner, Matthew) (Entered: 06/03/2020)

06/03/2020

32 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of TELEPHONIC MOTION FOR TRO/PRELIMINARY INJUNCTION HEARING proceedings held on 05/22/2020, before Judge DIANE J. HUMETEWA. [Court Reporter: Linda Schroeder, RDR, CRR, Telephone number (602) 322-7249]. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/24/2020. Redacted Transcript

06/15/2020 06/15/2020
06/16/2020 06/18/2020 06/24/2020 06/26/2020

Deadline set for 7/6/2020. Release of Transcript Restriction set for 9/1/2020. (RAP) (Entered: 06/05/2020)
33 *SERVICE EXECUTED : Rule 4 Waiver of Service of Summons. Waiver sent on 6/12/20 to Kris Kline by James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe Lucero-Gonzalez, Tracy Ann Peuplie, Claudia Romero-Lorenzo . (Koerner, Matthew) *Modified to correct event type on 6/16/2020 (EJA). (Entered: 06/15/2020)
34 *NOTICE of Service filed by James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe Lucero-Gonzalez, Tracy Ann Peuplie, Claudia Romero-Lorenzo: Notice of Service re: Summons, Complaint, Motion for Temporary Restraining Order and Motion for Class Certification upon David Gonzales, Donald W. Washington, Michael Carvajal, United States Attorney's office, United States Attorney General on 5/15/20, 6/11/20, 6/12/20. (Koerner, Matthew) *Modified to correct event type on 6/16/2020 (EJA). (Entered: 06/15/2020)
35 MOTION for Reconsideration re: 29 Order on Motion for TRO, Order on Motion for Preliminary Injunction by James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe Lucero-Gonzalez, Tracy Ann Peuplie, Claudia Romero-Lorenzo. (Attachments: # 1 Text of Proposed Order)(Casselman, Margo) (Entered: 06/16/2020)
36 ORDER that the reference to the Magistrate Judge is withdrawn as to the Motion for Reconsideration (Doc. 35 ). Defendants must file a response to the Motion for Reconsideration within 10 days of the date of this Order. Plaintiffs may file a Reply in support of their Motion within 5 days of the date Defendants' response is filed. All other matters must remain with the Magistrate Judge for disposition as appropriate. Signed by Judge Diane J Humetewa on 6/18/2020. (LFIG) (Entered: 06/18/2020)
37 *Joint MOTION to Vacate 6 Order, Set/Reset Motion and R&R Deadlines/Hearings Re: Defendants-Respondents Joint Motion to Vacate Class Certification Briefing by Kris Kline, David Gonzales, Donald W Washington, Michael Carvajal. (Attachments: # 1 Text of Proposed Order)(Lee, Jacob) *Modified to add filers on 6/26/2020 (EJA). (Entered: 06/24/2020)
38 RESPONSE to Motion re: 35 MOTION for Reconsideration re: 29
Order on Motion for TRO, Order on Motion for Preliminary

07/01/2020 07/06/2020 07/08/2020 07/08/2020
07/10/2020 07/14/2020

Injunction filed by Michael Carvajal, David Gonzales, Kris Kline, Donald W Washington. (Acedo, Nicholas) (Entered: 06/26/2020)
39 REPLY to Response to Motion re: 35 MOTION for Reconsideration
re: 29 Order on Motion for TRO, Order on Motion for Preliminary Injunction filed by James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe Lucero-Gonzalez, Tracy Ann Peuplie, Claudia Romero-Lorenzo. (Casselman, Margo) (Entered: 07/01/2020)
40 NOTICE re: PLAINTIFFS-PETITIONERS NOTICE OF THIRTYNINE (39) ADDITIONAL CONFIRMED COVID-19 CASES AT CORECIVIC by James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe Lucero-Gonzalez, Tracy Ann Peuplie, Claudia RomeroLorenzo . (Koerner, Matthew) (Entered: 07/06/2020)
41 RESPONSE re: 40 Notice (Other) Re: Joint Response to PlaintiffsPetitioners' Notice of Thirty-Nine (39) Additional Confirmed COVID-19 Cases by Defendant Kris Kline. (Attachments: # 1 Exhibit 1 - Declaration of Warden K. Kline)(Lee, Jacob) (Entered: 07/08/2020)
42 RESPONSE to Motion re: 37 Joint MOTION to Vacate 6
Order, Set/Reset Motion and R&R Deadlines/Hearings Re: Defendants-Respondents Joint Motion to Vacate Class Certification Briefing, 3 MOTION to Certify Class filed by James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe Lucero-Gonzalez, Tracy Ann Peuplie, Claudia Romero-Lorenzo. (Attachments: # 1 Exhibit Exhibit 1)(Koerner, Matthew) (Entered: 07/08/2020)
43 First MOTION for Extension of Time to File Answer re: 1
Complaint , MOTION for Extension of Time to File Response/Reply as to 3 MOTION to Certify Class by Michael Carvajal, David Gonzales, Donald W Washington. (Attachments: # 1 Text of Proposed Order)(Staes, William) (Entered: 07/10/2020)
44 ORDER that the reference to the Magistrate Judge is withdrawn as to Defendants-Respondents Joint Motion to Vacate Class Certification Briefing, which the Court construes as a Motion for Extension of Time. ORDERED that Defendants-Respondents' 37 Motion for Extension of Time is granted. Defendants-Respondents will have until August 11, 2020 to respond to the Motion for Class Certification. Federal Defendants' 43 Motion for Extension of Time to File Answer and Response to Motion for Class Certification is

07/17/2020
08/10/2020 08/10/2020 08/11/2020 08/11/2020 08/11/2020 08/11/2020

granted. Federal Defendants will have until August 11, 2020 to answer the Complaint and respond to the Motion for Class Certification. Signed by Judge Diane J Humetewa on 7/14/2020. (See Order for details.) (LFIG) (Entered: 07/14/2020)
45 ORDER that the reference to the Magistrate Judge is withdrawn as to the Motion for Reconsideration (Doc. 35 ). Plaintiffs' Motion for Reconsideration (Doc. 35 ) is granted to the extent that the Court clarifies that Monell v. Department of Social Services, 436 U.S. 658, 694 (1978), is inapplicable to Plaintiffs' claims, and is denied to the extent it seeks any other relief. All other matters must remain with the Magistrate Judge for disposition as appropriate. Signed by Judge Diane J Humetewa on 7/17/2020. (LFIG) (Entered: 07/17/2020)
Remark: Pro hac vice motion(s) granted for Somil Bharat Trivedi on behalf of Plaintiffs James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe Lucero-Gonzalez, Tracy Ann Peuplie, Claudia RomeroLorenzo. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 08/10/2020)
46 MOTION for Extension of Time to File Response/Reply as to 3 MOTION to Certify Class (Unopposed) by Kris Kline. (Attachments: # 1 Text of Proposed Order)(Acedo, Nicholas) (Entered: 08/10/2020)
47 ORDER: Defendant's Unopposed Motion for Extension of Time to File Response to Plaintiff's Motion to Certify Class (Doc. 46 ) is GRANTED. Defendant's Response shall be filed by August 12, 2020. ORDERED by Judge Diane J Humetewa on 8/11/2020. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (LFIG) (Entered: 08/11/2020)
48 *Joint MOTION to Dismiss for Lack of Jurisdiction , MOTION to Dismiss for Failure to State a Claim by Michael Carvajal, David Gonzales (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Staes, William) *Modified to correct filers on 8/12/2020 (GMP). (Entered: 08/11/2020)
49 MOTION to Expedite Discovery by James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe Lucero-Gonzalez, Tracy Ann Peuplie, Claudia Romero-Lorenzo. (Attachments: # 1 Exhibit Exhibits A-E, # 2 Text of Proposed Order)(Calleros, Benjamin) (Entered: 08/11/2020)
50 MOTION to Expedite Consideration of Plaintiffs-Petitioners' Motion for Accelerated and Expedited Discovery by James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe Lucero-Gonzalez, Tracy Ann

08/12/2020 08/12/2020 08/12/2020 08/13/2020 08/13/2020
08/18/2020 08/19/2020

Peuplie, Claudia Romero-Lorenzo. (Attachments: # 1 Text of Proposed Order)(Calleros, Benjamin) (Entered: 08/11/2020)
51 RESPONSE in Opposition re: 50 MOTION to Expedite Consideration of Plaintiffs-Petitioners' Motion for Accelerated and Expedited Discovery filed by Kris Kline. (Acedo, Nicholas) (Entered: 08/12/2020)
52 Additional Attachments to Main Document re: 48 Joint MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim Re: Attachment 1 to Exhibit A - Supplemental Declaration of Warden K. Kline [Doc. 48-1) by Defendant Kris Kline. (Acedo, Nicholas) (Entered: 08/12/2020)
53 RESPONSE in Opposition re: 3 MOTION to Certify Class (Joint Response) filed by Kris Kline. (Attachments: # 1 Exhibit 1)(Acedo, Nicholas) (Entered: 08/12/2020)
54 *REPLY re: 50 MOTION to Expedite Consideration of PlaintiffsPetitioners' Motion for Accelerated and Expedited Discovery by Plaintiffs James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe Lucero-Gonzalez, Tracy Ann Peuplie, Claudia RomeroLorenzo. (Koerner, Matthew) *Modified text and document link on 8/13/2020 (SLQ). (Entered: 08/13/2020)
55 ORDER - IT IS HEREBY ORDERED that Plaintiffs-Petitioners' Motion for Expedited Consideration of Plaintiffs-Petitioners' Motion for Accelerated and Expedited Discovery (Doc. 50 ) is granted. IT IS FURTHER ORDERED that Defendants-Respondents may file a responsive memorandum to the Motion for Accelerated and Expedited Discovery (Doc. 49 ) no later than five days after the issuance of this Order. IT IS FURTHER ORDERED that PlaintiffsPetitioners may file a reply in support of their Motion for Accelerated and Expedited Discovery (Doc. 49 ) no later than two days after Defendants-Respondents' responsive memorandum is filed. (See document for complete details). Signed by Magistrate Judge Deborah M Fine on 8/13/20. (SLQ) (Entered: 08/13/2020)
56 RESPONSE in Opposition re: 49 MOTION to Expedite Discovery filed by Kris Kline. (Attachments: # 1 Exhibit 01 03)(Acedo, Nicholas) (Entered: 08/18/2020)
57 NOTICE re: Notice of Filing Signed Declaration of Warden K. Kline in Support of Joint Response in Opposition to Plaintiffs-Petitioners Motion for Accelerated and Expedited Discovery by Kris Kline re: 56 Response in Opposition to Motion . (Attachments:

# 1 Declaration of Warden K. Kline (Signed))(Acedo, Nicholas) (Entered: 08/19/2020)

08/19/2020

58 REPLY to Response to Motion re: 3 MOTION to Certify Class filed by James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe Lucero-Gonzalez, Tracy Ann Peuplie, Claudia Romero-Lorenzo. (Calleros, Benjamin) (Entered: 08/19/2020)

08/20/2020

59 REPLY to Response to Motion re: 49 MOTION to Expedite Discovery filed by James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe Lucero-Gonzalez, Tracy Ann Peuplie, Claudia RomeroLorenzo. (Calleros, Benjamin) (Entered: 08/20/2020)

08/28/2020 60

ORDER granting in part, as set forth herein, Plaintiffs' motion for accelerated and expedited discovery to support Plaintiffs' forthcoming motion for preliminary injunctive relief (Doc. 49 ). See document for complete details. Signed by Magistrate Judge Deborah M Fine on 8/28/20. (EJA) (Entered: 08/28/2020)

09/04/2020

61 MOTION to Stay Defendants-Respondents Joint Motion to Stay Accelerated and Expedited Discovery by Kris Kline. (Attachments: # 1 Text of Proposed Order)(Lee, Jacob) (Entered: 09/04/2020)

09/04/2020

62 MOTION Defendants-Respondents Joint Motion for Expedited Consideration of Joint Motion to Stay re: 61 MOTION to Stay Defendants-Respondents Joint Motion to Stay Accelerated and Expedited Discovery by Kris Kline. (Attachments: # 1 Text of Proposed Order)(Lee, Jacob) (Entered: 09/04/2020)

09/08/2020

63 ORDER - IT IS ORDERED granting Defendants-Respondents' Joint Motion for Expedited Consideration (Doc. 62 ). IT IS FURTHER ORDERED granting Defendants-Respondents' Joint Motion to Stay Accelerated and Expedited Discovery (Doc. 61 ). IT IS FURTHER

ORDERED staying the August 28, 2020 Order (Doc. 60 ) requiring Defendants to respond to expedited discovery pending a ruling from the Court as to Defendants' objections to the August 28, 2020 Order, which shall be timely filed within fourteen days from the date of the August 28, 2020 Order. Signed by Magistrate Judge Deborah M Fine on 9/8/2020. (WLP) (Entered: 09/08/2020)

09/10/2020

64 RESPONSE in Opposition re: 48 Joint MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim (Response in Opposition to Joint Motion to Dismiss) filed by James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe LuceroGonzalez, Tracy Ann Peuplie, Claudia Romero-Lorenzo.

09/11/2020 09/14/2020
09/21/2020 09/25/2020 11/03/2020

(Attachments: # 1 Exhibit A - Proposed First Amended Complaint and Petition)(Koerner, Matthew) (Entered: 09/10/2020)
65 APPEAL OF MAGISTRATE JUDGE DECISION TO DISTRICT
COURT by Kris Kline re: 60 Order on Motion to Expedite. (Acedo, Nicholas) (Entered: 09/11/2020)
66 ORDER: Defendants have appealed a decision of the Magistrate Judge (Doc. 65 ). The Court finds cause to expedite briefing on the appeal. Accordingly, IT IS ORDERED that Plaintiffs shall file a response to the appeal by September 21, 2020. No reply will be permitted. ORDERED by Judge Diane J Humetewa on 9/14/2020. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (LFIG) (Entered: 09/14/2020)
67 RESPONSE to Defendants-Respondents' Objection to Discovery Order by Plaintiffs James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe Lucero-Gonzalez, Tracy Ann Peuplie, Claudia RomeroLorenzo. (Calleros, Benjamin) (Entered: 09/21/2020)
68 REPLY to Response to Motion re: 48 Joint MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim & (64) Plaintiffs-Petitioners' Response to Joint Motion to Dismiss filed by Michael Carvajal, David Gonzales, Kris Kline. (Staes, William) (Entered: 09/25/2020)
69 ORDER granting 3 Plaintiffs' Motion for Class Certification. The following Classes are certified pursuant to Rule 23: (a) The Pretrial Class, defined as All current and future persons held by Defendants Kline, Gonzalez, and Washington in pretrial detention at Central Arizona Florence Correctional Complex ('CoreCivic'), and (b) The Post-Conviction Class, defined as All current and future persons held by Defendants Kline and Carvajal in post-conviction detention at CoreCivic. Named Plaintiffs Tracy Ann Peuplie, James Tyler Ciecierski, and Marvin Lee Enos are appointed as class representatives for the Pretrial Class, and Plaintiff Claudia RomeroLorenzo is appointed as class representative for the Post-Conviction Class. Named Plaintiff Lucero-Gonzalez is dismissed from this action. The Clerk of Court must update the docket to reflect that named Plaintiff Maria Guadalupe Lucero-Gonzalez has been released from custody and is no longer a Plaintiff in this action. Signed by Judge Diane J Humetewa on 11/3/20. (EJA) (Entered: 11/03/2020)

11/09/2020 11/18/2020 11/19/2020
11/19/2020 11/20/2020 11/23/2020 11/23/2020 11/24/2020

70 ORDER affirming the Magistrate Judge's Order granting Plaintiffs'
Motion for Expedited Discovery (Doc. 60 ). Signed by Judge Diane J Humetewa on 11/9/2020. (See Order for details.) (LFIG) (Entered: 11/09/2020)
71 NOTICE re: Party Substitution Re: Warden Brian Koehn by Kris Kline . (Acedo, Nicholas) (Entered: 11/18/2020)
72 ORDER - Telephonic Discovery Dispute Hearing is set for 12/9/2020 at 10:00 AM before Magistrate Judge Deborah M Fine. ORDERED that on or before December 2, 2020, counsel for Plaintiffs and counsel for Defendants may separately file memoranda regarding the discovery dispute not to exceed five pages, including caption but excluding signature block, with exhibits of up to fifteen pages. FURTHER ORDERED that if any members of the public or of the media are seeking access to the hearing, they are directed to email AZD-PIO@azd.uscourts.gov to obtain dial-in instructions. Pursuant to Local Rule 43.1, participants are reminded that audiotaping court proceedings is prohibited. Signed by Magistrate Judge Deborah M Fine on 11/19/20. (EJA) (Entered: 11/19/2020)
73 *STIPULATION Proposed Protective Order by James Tyler Ciecierski, Marvin Lee Enos, Tracy Ann Peuplie, Claudia RomeroLorenzo. (Calleros, Benjamin) *Modified to remove filer on 11/20/2020 (EJA). (Entered: 11/19/2020)
74 ORDER - In all future filings, the case caption shall eliminate Maria Guadalupe Lucero-Gonzalez, making Claudia Romero-Lorenzo the first named Plaintiff; the case caption shall also reflect Defendant Brian Koehn, rather than Kris Kline, as Warden of the Central Arizona Florence Correctional Complex. Signed by Magistrate Judge Deborah M Fine on 11/20/20. (EJA) (Entered: 11/20/2020)
75 NOTICE of Service of Discovery filed by Brian Koehn. (Lee, Jacob) (Entered: 11/23/2020)
76 NOTICE of Service of Discovery filed by Michael Carvajal, David Gonzales, Donald W Washington. (Staes, William) (Entered: 11/23/2020)
77 PROTECTIVE ORDER - ORDERED granting the parties' Stipulation for Protective Order (Doc. 73 ). See document for complete details. Signed by Magistrate Judge Deborah M Fine on 11/24/20. (EJA) (Entered: 11/24/2020)

12/02/2020 12/02/2020 12/04/2020 12/09/2020 12/09/2020
12/09/2020

78 BRIEF re: 72 Order, Set/Reset Hearings Re: Respondent Koehn's Discovery Dispute Brief by Defendant Brian Koehn. (Lee, Jacob) (Entered: 12/02/2020)
79 MEMORANDUM On The Deposition of Warden Kris Kline by Plaintiffs James Tyler Ciecierski, Marvin Lee Enos, Tracy Ann Peuplie, Claudia Romero-Lorenzo. (Attachments: # 1 Exhibit AB)(Calleros, Benjamin) (Entered: 12/02/2020)
80 NOTICE of Service of Discovery filed by Brian Koehn. (Lee, Jacob) (Entered: 12/04/2020)
81 NOTICE of Appearance by Thomas Dean Ryerson on behalf of James Tyler Ciecierski, Marvin Lee Enos, Maria Guadalupe LuceroGonzalez, Tracy Ann Peuplie, Claudia Romero-Lorenzo. (Ryerson, Thomas) (Entered: 12/09/2020)
Remark: Pro hac vice motion(s) granted for Milo Rohr Inglehart on behalf of Plaintiffs James Tyler Ciecierski, Marvin Lee Enos, Tracy Ann Peuplie, Claudia Romero-Lorenzo. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/09/2020)
82 MINUTE ENTRY for proceedings held before Magistrate Judge Deborah M Fine: Telephonic Discovery Hearing held on 12/9/2020. Discovery Dispute discussed. The Court informs that it has carefully reviewed the dispute memoranda. Plaintiffs and Defendants are given opportunity to raise additional arguments, highlight key items in their memoranda, and update the Court on any factual developments. After discussion, IT IS ORDERED allowing Plaintiffs to conduct expedited, remote, video depositions of CAFCC Warden Koehn as well as former CAFCC Warden Kline, each deposition not to last more than four hours of on record time. The depositions shall be conducted within thirty days of this hearing. The Court encourages all counsel to work cooperatively towards trying to avoid a second deposition of former CAFCC Warden Kline later in the litigation.
APPEARANCES: Telephonic appearances by Benjamin Calleros, Margo Casselman, Matthew Koerner, Thomas Ryerson observing, will be filing a Notice of Appearance for Plaintiff. Telephonic appearances by Jacob Lee, William Staes for Defendants. (Recorded by COURTSMART.) Hearing held 10:02 am to 11:06 am. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MSA) (Entered: 12/10/2020)

12/21/2020 12/22/2020 12/22/2020
12/28/2020 01/12/2021 01/20/2021 01/26/2021 01/27/2021
02/02/2021
02/19/2021

83 NOTICE of Service of Discovery filed by James Tyler Ciecierski, Marvin Lee Enos, Tracy Ann Peuplie, Claudia Romero-Lorenzo. (Calleros, Benjamin) (Entered: 12/21/2020)
84 Additional Attachments to Main Document re: 83 Notice of Service of Discovery by Plaintiffs James Tyler Ciecierski, Marvin Lee Enos, Tracy Ann Peuplie, Claudia Romero-Lorenzo. (Calleros, Benjamin) (Entered: 12/22/2020)
Remark: Pro hac vice motion(s) granted for Mark Carter on behalf of Plaintiffs James Tyler Ciecierski, Marvin Lee Enos, Tracy Ann Peuplie, Claudia Romero-Lorenzo. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/22/2020)
85 *NOTICE of Service of Discovery filed by James Tyler Ciecierski, Marvin Lee Enos, Tracy Ann Peuplie, Claudia Romero-Lorenzo. (Attachments: # 1 Exhibit Exhibit A)(Koerner, Matthew) *Modified to remove filer on 12/29/2020 (MHW). (Entered: 12/28/2020)
86 NOTICE of Service of Discovery filed by Brian Koehn. (Lee, Jacob) (Entered: 01/12/2021)
87 NOTICE of Service of Discovery filed by Brian Koehn. (Lee, Jacob) (Entered: 01/20/2021)
88 NOTICE of Service of Discovery filed by Michael Carvajal, David Gonzales, Donald W Washington. (Staes, William) (Entered: 01/26/2021)
Remark: Pro hac vice motion(s) granted for Corene T Kendrick on behalf of Plaintiffs James Tyler Ciecierski, Marvin Lee Enos, Tracy Ann Peuplie, Claudia Romero-Lorenzo. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 01/27/2021)
Remark: Pro hac vice motion(s) granted for David Cyrus Fathi on behalf of Plaintiffs James Tyler Ciecierski, Marvin Lee Enos, Tracy Ann Peuplie, Claudia Romero-Lorenzo. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 02/02/2021)
89 ORDER that the reference to the Magistrate Judge is withdrawn as to Defendants-Respondents' Joint Motion to Dismiss (Doc. 48 ). IT IS ORDERED the Joint Motion to Dismiss (Doc. 48 ) is granted in part and denied in part. The Motion is granted in part as to (a) PlaintiffsPetitioners' claims seeking release under § 1331 and/or writs of

03/05/2021 03/05/2021 03/05/2021

habeas corpus under § 2241, and these claims are dismissed for lack of subject-matter jurisdiction under Rule 12(b)(1); and (b) Plaintiffs' Eighth Amendment claims on behalf of the post-conviction class, and these claims are dismissed for failure to state a claim under Rule 12(b)(6). The Motion is denied as to Defendants' Motion to Dismiss Plaintiff's Fifth Amendment claims on behalf of the pre-trial class. Signed by Judge Diane J Humetewa on 2/17/2021. (See Order for details.) (LFIG) (Entered: 02/19/2021)
90 Warden Brian Koehn's Answer to Class Action Complaint for
Declaratory and Injunctive Relief ANSWER to 1 Complaint with Jury Demand by Brian Koehn.(Lee, Jacob) (Entered: 03/05/2021)
91 ANSWER to 1 Complaint by Michael Carvajal, David Gonzales, Donald W Washington.(Staes, William) (Entered: 03/05/2021)
92 ORDER SETTING RULE 16 CASE MANAGEMENT CONFERENCE - Pursuant to Rule 16 of the Federal Rules of Civil Procedure, a Telephonic Case Management Conference is set for April 7, 2021, at 10:30 a.m. in courtroom 304, Sandra Day O'Connor U.S. Courthouse, 401 W. Washington St., Phoenix, Arizona 850032151. See document for complete details. Signed by Magistrate Judge Deborah M Fine on 3/5/2021. (WLP) (Entered: 03/05/2021)

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 Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 1 of 29

1 Jean-Jacques Cabou (#022835) Matthew R. Koerner (#035018)
2 Margo R. Casselman (#034963) Benjamin C. Calleros (#034763)
3 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
4 Phoenix, Arizona 85012-2788 Telephone: 602-351-8000
5 Facsimile: 602-648-7000 JCabou@perkinscoie.com
6 MKoerner@perkinscoie.com MCasselman@perkinscoie.com
7 BCalleros@perkinscoie.com DocketPHX@perkinscoie.com
8 Attorneys for Plaintiffs–Petitioners
9 (additional counsel identified on signature page)
10

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF ARIZONA

13 Maria Guadalupe Lucero-Gonzalez; Claudia
14 Romero-Lorenzo; Tracy Ann Peuplie; James Tyler Ciecierski; and Marvin Lee Enos; each
15 individually and on behalf of all others similarly situated,
16
17 Plaintiffs–Petitioners,
18 v.
19 Kris Kline, Warden of the Central Arizona
20 Florence Correctional Complex; David Gonzales, U.S. Marshal for the District of
21 Arizona; Donald W. Washington, Director of the U.S. Marshals Service; Michael Carvajal,
22 Director of the Federal Bureau of Prisons, in their official capacities,
23 Defendants–Respondents.
24

No.
CLASS-ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRITS OF HABEAS CORPUS
(Jury Trial Demanded)
(Immediate Relief Sought)

25

26

27

28

Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 2 of 29

1

I. INTRODUCTION

2

1. On March 11, 2020, Arizona declared a public health emergency to prepare

3 for, respond to, and mitigate the spread of COVID-19. On March 19, Arizona closed most

4 businesses and gathering places by executive order. On March 30, Arizona issued an order

5 requiring that individuals remain six feet apart when sharing space. And on May 5, “[t]he

6 number of new deaths reported . . . was 33, the largest single-day increase in COVID-19-

7 related deaths in Arizona since the pandemic began.”1 That day, Arizona’s total

8 identified cases rose to 9,305, with 395 known deaths.2

9

2. Today, social distancing is a necessary part of life, and the sight of people in

10 public wearing masks, gloves, and other personal protective equipment (“PPE”),

11 traditionally reserved for hospitals, is now commonplace. While COVID-19 has radically

12 altered life for most people, though, life remains largely the same for the federal detainees

13 at CoreCivic Inc.’s Central Arizona Florence Correctional Complex (“CoreCivic”). Up to

14 14 people are crammed into a cell and stacked on bunk beds against a single wall. Soap is

15 scarce; disinfecting products are all but non-existent. And those housed in these

16 conditions—afraid of contracting this deadly disease while increasingly noticing those

17 around them showing symptoms—have resorted to wiping down communal telephones

18 with either T-shirts or watered-down menstrual pads. No one outside these walls would

19 willingly risk these conditions in the face of the dangers posed by COVID-19. Nor should

20 those inside be forced to do so. But, as of today, 20 people at CoreCivic have tested positive

21 for COVID-19.3 More will soon.

22

23

1 Alison Steinbach, Arizona coronavirus update: 9,945 confirmed cases, 450 known

deaths as of Thursday, AZ CENTRAL (May 7, 2020 9:51 a.m.),

24 https://www.azcentral.com/story/news/local/arizona-health/2020/05/07/coronavirus-

arizona-update-may-7-9-945-cases-450-deaths/5179488002/.

25

2 Id.

3 About 400 Inmates Quarantined at CoreCivic Prison in Florence, After 13 Test

26 Positive for COVID-19, AZ CENTRAL (May 8, 2020 7:00 a.m.),

https://www.azcentral.com/story/news/local/arizona-health/2020/05/08/coronavirus-cases-

27 multiple-inmates-test-positive-corecivic-prison-covid-19/3093348001/ (reporting that “13

inmates” and “seven employees have contracted COVID-19”); see also Declaration of

28 Christina M. Woehr (“Woehr Decl.”) ¶ 19, attached as Ex. 1.

-1-

Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 3 of 29

1

3. Across the globe, COVID-19 has infiltrated our communities. As of May 8,

2 2020, there were 3,860,000 confirmed cases globally, with 270,000 deaths.4 The United

3 States has led the world in confirmed cases of COVID-19 since March 26, 2020.5 In

4 Arizona, the COVID-19 infection rate is still rising, with over 9,700 confirmed cases and

5 426 deaths statewide, as of May 6, 2020.6 Over the last few weeks, as many as 427 new

6 cases of COVID-19 are reported in Arizona, every day.7 But, although the Arizona

7 Department of Health Services (“ADHS”) warns that the coronavirus is “widespread”

8 throughout the state, a lack of testing may be causing a drastic undercounting of cases in

9 Arizona.8 Arizona, in fact, ranks last out of all 50 states for COVID-19 tests per 1 million

10 people, as of May 7, 2020.9

11

4. There is no vaccine or cure for COVID-19.10 The best course, according to

12 public health experts, is to slow and prevent transmission, primarily through a practice

13 known as “social distancing.”11 Social distancing requires all people to stay at least six feet

14 away from all other people to control the spread of the virus.12 These measures are

15 particularly important because the novel coronavirus spreads aggressively and because

16 people can spread the disease even if they do not feel sick or show any symptoms.13 The

17

4 Johns Hopkins University & Medicine, COVID-19 Dashboard by the Center for 18 Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU),

https://cutt.ly/StEyn2U.

19

5 Donald G. McNeil, Jr., The U.S. Now Leads the World in Confirmed Coronavirus

Cases, N.Y. TIMES (March 26, 2020), https://cutt.ly/QtQ7zz6.

20

6 Johns Hopkins University & Medicine, supra note 4.

7 Arizona Department of Health Services, Data Dashboard,

21 https://www.azdhs.gov/preparedness/epidemiology-disease-control/infectious-disease-

epidemiology/covid-19/dashboards/index.php (last visited May 7, 2020).

22

8 Lazaro Gamio, Weiyi Cai, & Adeel Hassan, Where the U.S. Stands Now on

Coronavirus

Testing,

N.Y.

TIMES

(Mar.

26,

2020),

23 https://www.nytimes.com/interactive/2020/03/26/us/coronavirus-testing-states.html

(ranking Arizona last among the states in Coronavirus testing).

24

9

Coronavirus,

Worldometer,

https://www.worldometers.info/coronavirus/country/us/ (last visited May 7, 2020)

25 (compiling data from state reports).

10 Declaration of Joseph Goldenson, M.D. (“Goldenson Decl.”) ¶ 17, attached as Ex.

26 2.

11 Goldenson Decl. ¶¶ 17, 21; World Health Organization, Coronavirus - Prevention,

27 https://www.who.int/health-topics/coronavirus#tab=tab_2 (last visited May 7, 2020).

12 Goldenson Decl. ¶ 17.

28

13 Centers for Disease Control and Prevention, How COVID-19 Spreads,

-2-

Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 4 of 29

1 only assured way to curb the pandemic is through dramatically reducing close physical

2 contact.14 So, public health officials have urged every American institution—from schools

3 to places of worship, from businesses to legislatures—to reduce the number of people in

4 close quarters, if not to empty entirely. These institutions also have been told to undertake

5 aggressive sanitation measures, such as cleaning and disinfecting all surfaces with products

6 containing particular alcohol concentrations, and closing off any areas used by a sick

7 person.15

8

5. These imperatives apply especially to jails, prisons, and detention facilities,

9 where the government almost entirely controls a person’s ability to avoid others and

10 maintain adequate sanitation. Yet jails and prisons face inherent challenges with

11 implementing these recommendations. And incarcerated people are already suffering and

12 dying nationwide, and in Arizona, as a result.

13

6. Despite the ubiquity of this guidance, those responsible for Plaintiffs’ custody

14 have failed to provide basic safeguards against COVID-19. People detained at CoreCivic

15 report insufficient access to soap, masks, and gloves. They also report no measures to

16 ensure appropriate social distancing and report, in fact, policies and practices requiring

17 close physical contact. At CoreCivic, detainees are housed in pods with up to 80 people

18 and live in cells with up to 14 people, sleeping on stacked bunk beds spaced only several

19 feet apart.

20

7. Jails are not hermetically sealed. By their nature, the people who go in—from

21 correctional and medical staff, to those detained prior to trial, to those serving short

22 sentences—typically come out in very short order. Failing to mitigate the spread of

23

24 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html

(last visited May 7, 2020).

25

14 Harry Stevens, Why outbreaks like coronavirus spread exponentially, and how to

“flatten

the

curve,”

WASH.

POST

(Mar.

14,

2020),

26 https://www.washingtonpost.com/graphics/2020/world/corona-simulator/.

15 Centers for Disease Control and Prevention, Cleaning and Disinfecting Your

27 Facility,

https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-

28 facility.html (last visited May 7, 2020).

-3-

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1 COVID-19 endangers not only those within the institution, but also the entire community.

2 Immediate action therefore is the only mitigation effort that can prevent the current onset

3 of COVID-19 cases at CoreCivic from devolving into a future outbreak.

4

8. Absent intervention from this Court, devastating, and in many cases deadly,

5 irreparable harm will befall incarcerated persons, jail staff, and the community. The

6 outbreaks in similar detention facilities around the country prove the need for immediate

7 action.16

8

9. Accordingly, the named Plaintiffs here, on behalf of themselves and all other

9 similarly situated persons detained by Defendants at CoreCivic (collectively, “Plaintiffs”),

10 bring this action requesting that this Court (1) appoint a Rule 706 expert to immediately

11 inspect CoreCivic and to recommend to this Court measures and practices sufficient to

12 protect those detained at CoreCivic from contracting COVID-19, and (2) implement the

13 expert’s recommendations to stop the spread of COVID-19 within CoreCivic and beyond.

14 Given the likelihood of COVID-19 spreading exponentially through CoreCivic now that 20

15 people (so far) have tested positive—there is no time to spare. Plaintiffs request a hearing

16 as soon as possible.

17

II. NATURE OF THE ACTION

18

10. Plaintiffs Maria Lucero-Gonzalez, Claudia Romero-Lorenzo, Tracy Peuplie,

19 James Ciecierski, Marvin Lee Enos, and the proposed class members bring this putative

20 class action, seeking constitutionally adequate conditions of confinement, including

21 possible release from confinement, to remedy ongoing violations of Plaintiffs’ rights under

22 the Fifth and Eighth Amendments to the United States Constitution.

23

11. Plaintiffs seek a declaratory judgment, injunctive relief, and writs of habeas

24 corpus.

25

12. Plaintiffs seek this relief from Defendants Kris Kline, David Gonzales,

26

16 See, e.g., Sam Kelly, 134 inmates at Cook County Jail confirmed positive for

27 COVID-19,

CHICAGO

SUN-TIMES

(Mar.

30,

2020),

HTTPS://CHICAGO.SUNTIMES.COM/CORONAVIRUS/2020/3/29/21199171/COOK-COUNTY-

28 JAIL-CORONAVIRUS-POSITIVE-134-CASES-COVID-19.

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 6 of 29

1 Donald W. Washington, Michael Carvajal, and their successors, as well as their officers,

2 employees, agents, and all persons acting in cooperation with them, under their authority or

3 supervision, at their direction, or under their control (“Defendants”).

4

13. An actual, definite, and concrete controversy exists between Plaintiffs and

5 Defendants, concerning Plaintiffs’ conditions of confinement at CoreCivic.

6

14. This controversy will be resolved through the declaratory and injunctive relief

7 that Plaintiffs seek in this action, as well as the writs of habeas corpus.

8

15. Specifically, Plaintiffs seek a declaratory judgment, under 28 U.S.C. §§ 2201

9 and 2202, that the current conditions of confinement at CoreCivic—exacerbated by the

10 COVID-19 pandemic—violate Plaintiffs’ rights under the Fifth and Eighth Amendments to

11 the United States Constitution and seek writs of habeas corpus under 28 U.S.C. § 2241.

12

16. And, under the Equal Access to Justice Act, 28 U.S.C. § 2412, and any other

13 applicable law, Plaintiffs seek an award of their reasonable attorneys’ fees and their costs.

14

III. JURISDICTION & VENUE

15

17. Because this action arises under the Constitution and laws of the United

16 States, this Court has subject-matter jurisdiction. See 28 U.S.C. § 1331 (federal-question

17 jurisdiction); 28 U.S.C. § 1346 (original jurisdiction); see also 28 U.S.C. §§ 2201–02

18 (Declaratory Judgment Act); 28 U.S.C. § 2241 (habeas corpus).

19

18. Venue is proper in the District of Arizona, under 28 U.S.C. § 1391(b),

20 because a substantial part of the acts or omissions giving rise to this action have occurred

21 in this judicial district. Venue also is proper, under 28 U.S.C. § 2241(d), because Plaintiffs

22 are in custody in this judicial district and venue.

23

IV. PARTIES

24

19. Plaintiff Maria Guadalupe Lucero-Gonzalez has been detained in CoreCivic

25 since November 2019. She is 50 years old and is the mother of three children. She suffers

26 from several medical conditions, including asthma, hypertension, diabetes, and kidney

27 cancer. Before being detained at CoreCivic, she was undergoing treatment for her kidney

28 cancer. She has asked CoreCivic staff, on several occasions, to allow her to continue her

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 7 of 29

1 cancer treatments. CoreCivic staff have refused, stating that she is not allowed to leave

2 CoreCivic due to the COVID-19 pandemic. Ms. Lucero’s last cancer treatment was in July

3 2019. That same month, she was convicted of illegally reentering the United States and

4 was sentenced to time served and three years of supervised release. She is being detained

5 at CoreCivic for allegedly violating these conditions of release by illegally reentering the

6 United States. In the last week, sometime around May 4, 2020, Ms. Lucero has developed

7 a fever and a cough. Despite requesting medical care, she has not been tested for COVID-

8 19.17

9

20. Plaintiff Claudia Romero-Lorenzo has been detained in CoreCivic since

10 January 2020. She was charged with illegal reentry and is awaiting sentencing. She is 39

11 years old and has three children, including a 9-year-old son. She has been diagnosed with

12 several medical conditions, including a type of leukemia. Before being detained at

13 CoreCivic, she was undergoing treatment for this condition, attending regular

14 appointments, and taking medicine. She has asked CoreCivic staff, at least twice, to

15 continue her medical treatments. Ms. Romero’s last treatment was in April 2019.18

16

21. Plaintiff Tracy Ann Peuplie has been detained in CoreCivic since December

17 2019. She is 49 years old and suffers from several medical conditions, including asthma,

18 hypertension, anxiety, substance-abuse disorder, and spinal stenosis. She has asked

19 CoreCivic staff for medicine to treat the pain from her spinal stenosis, a condition where

20 the spine pinches nerves in the lower back and neck. She has not received medication for

21 this pain. She has been told that she needs to go to the hospital for this treatment but that

22 she is not allowed to leave CoreCivic due to the COVID-19 pandemic. Ms. Peuplie was

23 indicted for several offenses and is awaiting trial on these charges. She is presumed

24 innocent of these charges.19

25 17 See generally Declaration of Maria Guadalupe Lucero-Gonzalez (“Lucero Decl.”),
26 attached as Ex. 3. 18 See generally Declaration of Claudia Romero-Lorenzo (“Romero Decl.”), attached
27 as Ex. 4. 19 See generally Declaration of Tracy Ann Peuplie (“Peuplie Decl.”), attached as
28 Ex. 5.

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 8 of 29

1

22. Plaintiff James Tyler Ciecierski has been detained in CoreCivic since

2 February 2020. He is 26 years old and has a fiancée and a 10-month-old daughter. He

3 suffers from severe asthma, requiring him to always carry an inhaler. He was indicted on

4 one count and is awaiting trial. He is presumed innocent of this charge.20

5

23. Plaintiff Marvin Lee Enos has been detained in CoreCivic since August 2019.

6 He is 29 years old and suffers from multiple severe medical conditions, including asthma

7 and hypertension. He is currently awaiting trial. He is presumed innocent of the charges

8 pending against him.21

9

24. Defendant Kris Kline is the warden of CoreCivic and currently has immediate

10 custody over Plaintiffs. He is sued in his official capacity only.

11

25. Defendant David Gonzales is the U.S. Marshal for the District of Arizona and

12 is responsible for all people housed, on behalf of the U.S. Marshals, in the District of

13 Arizona, including Plaintiffs who are housed at CoreCivic. He is sued in his official

14 capacity only.

15

26. Defendant Donald W. Washington is the Director of the U.S. Marshals

16 Service and is responsible for all people housed on behalf of the U.S. Marshals, including

17 Plaintiffs who are housed at CoreCivic. He is sued in his official capacity only.

18

27. Defendant Michael Carvajal is the Director of the Federal Bureau of Prisons

19 and is responsible for all people housed on behalf of the Bureau of Prisons, including

20 Plaintiffs who are housed at CoreCivic. He is sued in his official capacity only.

21

V. FACTUAL ALLEGATIONS

22 A. COVID-19 poses an unprecedented risk of illness, injury, and death.

23

28. The 2019 novel coronavirus known to cause coronavirus disease 2019

24 (“COVID-19”) spreads from person to person through respiratory droplets, close personal

25 contact, and contact with contaminated surfaces and objects.22 There is no vaccine, nor any

26

20 See generally Declaration of James Tyler Ciecierski (“Ciecierski Decl.”), attached

27 as Ex. 6.

21 See generally Declaration of Marvin Lee Enos (“Enos Decl.”), attached as Ex. 7.

28

22 Goldenson Decl. ¶ 21; Centers for Disease Control and Prevention, Interim

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 9 of 29

1 known medication to prevent or treat the virus.23 The only known measures for effectively

2 protecting against transmission of COVID-19 are social distancing—that is, keeping at least

3 six feet between persons to avoid transmission—and a vigilant hygiene regimen, including

4 frequent and thorough hand washing.24 Because the coronavirus spreads among people

5 who do not show symptoms, social distancing is the best way to prevent transmission. Up

6 to 25% of people infected with COVID-19, it is estimated, lack symptoms of COVID-19.25

7

29. Once contracted, COVID-19 can cause severe damage to lung tissue,

8 including a permanent loss of respiratory capacity. COVID-19 also can damage tissues in

9 other vital organs, such as the heart and liver.26 The overall fatality rate is estimated to

10 range from 0.1% to 3.5%, or up to 35 times the rate associated with influenza infection.27

11

30. People over the age of 50 face an increased risk of serious illness or death

12 from COVID-19.28 In a February 29, 2020 preliminary report, individuals from ages 50 to

13 59 had an overall mortality rate of 1.3%, those aged 60 to 69 had a 3.6% mortality rate, and

14 those aged 70 to 79 had an 8% mortality rate.29

15

31. People of any age who suffer from certain underlying medical conditions—

16 including lung disease, heart disease, chronic liver or kidney disease (including hepatitis

17 and dialysis patients), diabetes, epilepsy, hypertension, compromised immune systems

18 (such as from cancer, HIV, or autoimmune disease), blood disorders (including sickle cell

19 disease), inherited metabolic disorders, stroke, developmental delay, and asthma—also

20 have elevated risks due to COVID-19.30 Early reports estimate that the mortality rate for

21

22

Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), https://cutt.ly/etRPVRl (last visited May 7, 2020).

23

23 World Health Organization, supra note 12. 24 Goldenson Decl. ¶¶ 17, 24; Johns Hopkins Medicine, Coronavirus, Social and

24

Physical Distancing and Self-Quarantine, https://cutt.ly/VtYYiDG (last visited May 7, 2020).

25

25 Goldenson Decl. ¶ 28. 26 Centers for Disease Control and Prevention, supra note 22.

26

27 Goldenson Decl. ¶ 9. 28 Id., ¶ 10.

27

29 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths, Worldometer (Apr.

16, 2020, 7:00 GMT update), https://cutt.ly/ytEimUQ.

28

30 Goldenson Decl. ¶ 10; Coronavirus disease (COVID-19) advice for the public:

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 10 of 29

1 those with cardiovascular disease was 13.2%, 9.2% for diabetes, 8.4% for hypertension,

2 8.0% for chronic respiratory disease, and 7.6% for cancer.31

3

32. Most people in higher risk categories who develop serious illness will need

4 advanced medical support, requiring highly specialized equipment like ventilators that are

5 in limited supply, and an entire team of care providers, including 1:1 or 1:2 nurse to patient

6 ratios, respiratory therapists, and intensive care physicians.32

7

33. In serious cases, COVID-19 causes acute respiratory disease syndrome

8 (“ARDS”), which is life-threatening: those who receive ideal medical care with ARDS have

9 a 30% mortality rate.33 COVID-19 also can trigger an over-response of the immune system

10 and result in widespread damage to other organs, including permanent injury to the kidneys

11 and neurologic injury.34

12

34. Many of these complications can manifest at an alarming pace. Patients can

13 show the first symptoms of infection in as little as two days after exposure, and their

14 condition can seriously deteriorate in as little as five days or sooner.35

15

35. Beyond the general health concerns presented by the COVID-19 pandemic,

16 people in congregate environments—i.e., places where people live, eat, and sleep in close

17 proximity—face increased risks of contracting COVID-19. These risks are evidenced by

18 the rapid spread of the virus in cruise ships and nursing homes, as well as the dramatic

19 outbreaks in the Cook County Jail36 and Rikers Island in New York City, where the

20

21

Myth busters, World Health Organization, https://cutt.ly/dtEiCyc (last visited May 7, 2020).

22

31 World Health Organization, Report of the WHO-China Joint Mission on

23 Coronavirus Disease 2019 (COVID-19) at 12 (Feb. 28, 2020), https://www.who.int/publications-detail/report-of-the-who-china-joint-mission-on-

24 coronavirus-disease-2019-(covid-19).

32 Goldenson Decl. ¶ 11.

25

33 Letter from Faculty at Johns Hopkins School of Medicine, School of Nursing, and

Bloomberg School of Public Health to Hon. Larry Hogan, Gov. of Maryland, March 25,

26 2020, https://bioethics.jhu.edu/wp-content/uploads/2019/10/Johns-Hopkins-faculty-letter-

on-COVID-19-jails-and-prisons.pdf. .

27

34 Id.

35 Centers for Disease Control and Prevention, supra note 22.

28

36 See supra note 17.

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 11 of 29

1 transmission rate for COVID-19 is estimated to be among the highest in the world.37 These

2 congregate environments also are susceptible to “community spread,” where the virus

3 spreads easily and sustainably within a community and where the source of the infection is

4 unknown.38

5

36. Correctional settings—like CoreCivic—further increase the risk of

6 contracting COVID-19 due to the high numbers of people with chronic, often untreated,

7 illnesses housed in a setting with minimal levels of sanitation, limited access to personal

8 hygiene products, limited access to medical care, numerous high-contact surfaces, and no

9 possibility of staying at a distance from others.39 Correctional facilities house large groups

10 of people together, and move people in groups to eat, recreate, and go to court. They

11 frequently have insufficient medical care for the population even outside times of crisis.

12 Hot water, soap, and paper towels are often in limited supply. And detained people, rather

13 than professional cleaners, are responsible for cleaning the facilities and often are not given

14 appropriate supplies.

15

37. As CDC staff explained in a recent report: “Although symptom screening is

16 important, an investigation of a COVID-19 outbreak in a skilled nursing facility found that

17 approximately one half of cases identified through facility-wide testing were among

18 asymptomatic and presymptomatic persons, who likely contributed to transmission. These

19 data indicate that symptom screening alone is inadequate to promptly identify and isolate

20 infected persons in congregate settings such as correctional and detention facilities.

21 Additional strategies, including physical distancing, movement restrictions, use of cloth

22 face coverings, intensified cleaning, infection control training for staff members, and

23

37 See Legal Aid Society, Analysis of COVID-19 Infection Rate in NYC Jails,

24 https://cutt.ly/RtYTbWd (last visited May 7, 2020).

38 Centers for Disease Control and Prevention, see supra note 13.

25

39 Goldenson Decl. ¶¶ 18–30; David Waldstein, To Fight Virus in Prisons, C.D.C.

Suggests More Screenings, N.Y. TIMES (May 6, 2020),

26 https://www.nytimes.com/2020/05/06/health/coronavirus-prisons-cdc.html (“Jails and

prisons are among the most challenging places to control the outbreak of the coronavirus.

27 Similar to cruise ships and nursing homes, detention facilities have crowded living spaces

and shared dining areas, as well as communal bathrooms and a lack of space to isolate

28 infected detainees, all of which makes physical distancing practices difficult to achieve.”).

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 12 of 29

1 disinfection of high-touch surfaces in shared spaces are recommended to prevent and

2 manage spread within correctional and detention facilities. Some jurisdictions have

3 implemented decompression strategies to reduce crowding, such as reducing or eliminating

4 bail and releasing persons to home confinement or community supervision.”40

5

38. Numerous public health experts have all strongly cautioned that people

6 booked into and held in jails are likely to face serious, even deadly, harm due to the outbreak

7 of COVID-19.41

8 B. Governments, businesses, and communities have implemented stringent
preventative measures to slow the spread of COVID-19. 9
39. Due to the risks posed by the COVID-19 pandemic, people have implemented 10
responsive measures globally, nationally, and in Arizona. 11
40. On March 13, 2020, the President declared a national state of emergency.42 12
41. Numerous states also have issued “stay at home” orders, asking people to stay 13
home in order to stop the spread of COVID-19. 14
42. The State of Arizona similarly is taking unprecedented steps to manage the 15
public health crisis caused by COVID-19 and to minimize the spread of the virus. On March 16
11, 2020, Arizona Governor Doug Ducey declared a State of Emergency due to the COVID17
19 outbreak. Days later, on March 15, Governor Ducey closed all public schools, a closure 18

19

40 Megan Wallace et al., COVID-19 in Correctional and Detention Facilities—

20 United

States,

February–April

2020

(May

6,

2020),

https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e1.htm?s_cid=mm6919e1_w.

21

41 Kelan Lyons, Elderly prison population vulnerable to potential coronavirus

outbreak, CONNECTICUT MIRROR (Mar. 11, 2020), https://cutt.ly/BtRSxCF; Craig

22 McCarthy and Natalie Musumeci, Top Rikers doctor: Coronavirus ‘storm is coming,’ NEW

YORK POST (Mar. 19, 2020), https://cutt.ly/ptRSnVo; Marc F. Stern, MD, MPH,

23 Washington State Jails Coronavirus Management Suggestions in 3 “Buckets,” Washington

Assoc. of Sheriffs & Police Chiefs (Mar. 5, 2020), https://cutt.ly/EtRSm4R; Oluwadamilola

24 T. Oladeru et al., What COVID-19 Means for America’s Incarcerated Population – and

How to Ensure It’s Not Left Behind, Health Affairs Blog (Mar. 10, 2020),

25 https://cutt.ly/QtRSYNA; Anne C. Spaulding, MD, MPDH, Coronavirus and the

Correctional Facility, Emory Center for the Health of Incarcerated Persons (Mar. 9, 2020),

26 http://www.chip.sph.emory.edu/documents/For%20Correctional%20Facility%20Leadersh

ip_2020.pdf; Madison Pauly, To Arrest the Spread of Coronavirus, Arrest Fewer People,

27 MOTHER JONES (Mar. 12, 2020), https://cutt.ly/jtRSPnk.

42 Derek Hawkins et al., Trump declares coronavirus outbreak a national

28 emergency, WASH. POST (Mar. 13, 2020, 10:46 PM EST), https://cutt.ly/ftWyIPb.

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 13 of 29

1 later extended through the end of the 2019–2020 school year. Then, in a March 30 letter to

2 Governor Ducey, ADHS Director Dr. Cara M. Christ implored the State to “prioritize

3 physical distancing as a critical mitigation strategy to protect [the state’s] healthcare

4 system.”43 In response, on March 30 Governor Ducey ordered a statewide “stay-at-home”

5 order.44 And on April 29, Governor Ducey extended the stay-at-home order to at least May

6 15, 2020.45

7

43. Both this Court and the Arizona Supreme Court have implemented similar

8 measures in response to COVID-19. Since March 13, 2020, the Arizona Supreme Court

9 has limited or halted entirely in-person proceedings, including grand-jury proceedings,

10 hearings, trials, and sentencings.46 The U.S. District Court for the District of Arizona has

11 acted similarly, suspending certain in-person proceedings since March 16, 2020.47

12 C. Despite the grave risks posed by COVID-19, Defendants have not provided safe
conditions of confinement to protect Plaintiffs from infection. 13
44. Defendants must respond to and manage the continued risks posed by the 14
COVID-19 outbreak by following CDC and other public health guidelines.48 15
45. The conditions and policies at CoreCivic expose Plaintiffs to unreasonable 16
risks of contracting COVID-19. With at least 20 confirmed cases of COVID-19 at 17

18

43 Letter from ADHS Director Dr. Cara M. Christ to Hon. Douglas A. Ducey,

19 Governor

of

Arizona,

March

30,

2020,

https://www.azdhs.gov/documents/preparedness/epidemiology-disease-control/infectious-

20 disease-epidemiology/novel-coronavirus/governor-letter-recommendations-3-30-

2020.pdf.

21

44 State of Arizona, Exec. Order No. 2020-18, Stay Home, Stay Healthy, Stay

Connected: Physical Distancing to Mitigate COVID-19 Transmission, (Mar. 30, 2020),

22 https://www.azdhs.gov/documents/preparedness/epidemiology-disease-control/infectious-

disease-epidemiology/novel-coronavirus/eo-stay-home-stay-healthy-stay-connected.pdf.

23

45 State of Arizona, Exec. Order No. 2020-33, Returning Stronger: Amending the

Stay Home, Stay Healthy, Stay Connected Order (Apr. 29, 2020),

24 https://azgovernor.gov/sites/default/files/eo_2020-33_sw.pdf.

46 Admin. Order No. 2020-44, Matter of Judicial Review of Public Health

25 Emergency Orders to Control Communicable or Infectious Diseases (Ariz. Mar. 13, 2020),

http://www.azcourts.gov/Portals/22/admorder/Orders20/2020-44.pdf.

26

47 General Order 20-12, Matter of Suspension of Grand Jury Proceedings in the

District of Arizona in Response to Coronavirus Disease (COVID-19) (D. Ariz. Mar. 16,

27 2020), http://www.azd.uscourts.gov/sites/default/files/general-orders/20-12.pdf; see also

Woehr Decl. ¶¶ 4–17 (outlining changes to court procedures and resulting consequences).

28

48 See, e.g., Centers for Disease Control and Prevention, supra note 22.

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 14 of 29

1 CoreCivic already and hundreds of detainees reportedly under counterproductive “group

2 quarantine” without widespread testing,49 these risks increase daily.

3

46. At CoreCivic, Plaintiffs are detained in community “pods,” or housing units,

4 containing either 40 or 80 people.50 All 40 or 80 people in the pod share between four to

5 six showers and three to four telephones.51

6

47. Within their pods, Plaintiffs share a cell with either one person or as many as

7 13 other people.52 In cells with one other person, beds are placed only a couple feet, or

8 arms’ length, apart.53 In cells with bunk beds, as many as six bunks are often placed against

9 the same wall, within one or two feet apart.54 Everyone in a cell—regardless of whether it

10 houses two or 14 people—shares a single toilet and sink.55

11

48. In isolation, Plaintiff Enos is held in a small cell with two other people as

12 close to two feet apart without access to daily showers.56

13

49. When people are first transferred to CoreCivic, they are placed in a

14 “quarantine room” or “cohort” with other people who recently came to the facility.57 These

15 cohorts are held in a small room for 14 days.58 After 14 days, these people are moved to

16 the pod and are placed in a cell housing between two to 14 people.59 Sometimes before the

17 end of the 14 days, though, people in quarantine are removed from quarantine and placed

18 in the general population, “by mistake,” before eventually being returned to quarantine.60

19

50. Defendants have not attempted to implement social distancing.61 People

20 frequently stand close together in lines when waiting for food at mealtime, for medical

21

49 Woehr Decl. ¶¶ 19, 22.

22

50 Ciecierski Decl. ¶ 4; Peuplie Decl. ¶ 5; Lucero Decl. ¶ 8; Romero Decl. ¶ 7.

51 Ciecierski Decl. ¶ 4; Peuplie Decl. ¶ 5; Lucero Decl. ¶ 8; Woehr Decl. ¶ 33.

23

52 Ciecierski Decl. ¶¶ 4–5; Woehr Decl. ¶ 42; Peuplie Decl. ¶ 6; Lucero Decl. ¶ 10;

Romero Decl. ¶ 8.

24

53 Woehr Decl. ¶ 43; Ciecierski Decl. ¶ 4; Lucero Decl. ¶ 10; Romero Decl. ¶ 8.

54 Ciecierski Decl. ¶ 5; Peuplie Decl. ¶ 6.

25

55 Peuplie Decl. ¶ 6; Lucero Decl. ¶ 10; Romero Decl. ¶ 8.

56 Enos Decl. ¶¶ 13–15.

26

57 Peuplie Decl. ¶ 12.

58 Id.

27

59 Id.

60 Woehr Decl. ¶ 30.

28

61 Peuplie Decl. ¶ 7; Lucero Decl. ¶ 8; Romero Decl. ¶¶ 7, 16.

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 15 of 29

1 appointments at CoreCivic’s medical office, and for the communal telephones.62 These

2 telephones are placed “considerably less than six feet apart, requiring [detainees] to stand

3 within 2 to 3 feet to other detainees while using the phone to call their attorneys or

4 families.”63 There is nearly always a line of people waiting to use these phones.64 People

5 cram together at tables during mealtime.65 And jobs for detainees, including kitchen staff

6 and barbers, have continued as usual, with as many as 167 people working in close

7 quarters.66

8

51. Despite CDC and other public health recommendations, Plaintiffs did not

9 receive any sort of mask until mid-April 2020.67 Some still have not received masks.68 The

10 masks Plaintiffs did receive, if at all, were thin disposable paper masks, not the N95 masks

11 recommended by the CDC.69 CoreCivic’s guards also tease detainees that these disposable

12 masks “‘don’t work’ against the virus.”70

13

52. When Plaintiffs eventually received masks, Defendants did not require

14 everyone to wear a mask.71 And because masks were not required, most people—including

15 guards and other CoreCivic staff—did not wear a mask.72

16

53. Although beginning around April 30, 2020, Plaintiffs have been required to

17 wear masks when outside the pods, Plaintiffs are not required to wear masks when in their

18 pods or cells.73 Few people (if any) wear masks inside the pods and cells.74 Guards and

19 other CoreCivic staff began wearing masks beginning around April 30, 2020, after the first

20 confirmed case within the facility, but many still are not consistently wearing masks or

21

62 Ciecierski Decl. ¶ 9; Peuplie Decl. ¶ 7; Lucero Decl. ¶ 9; Woehr Decl. ¶ 40.

22

63 Woehr Decl. ¶ 36.

64 Id.; Peuplie Decl. ¶ 7.

23

65 Woehr Decl. ¶ 38; Ciecierski Decl. ¶ 9; Peuplie Decl. ¶ 7; Lucero Decl. ¶ 9.

66 Ciecierski Decl. ¶ 9; Romero Decl. ¶ 9; Woehr Decl. ¶¶ 72–73.

24

67 Ciecierski Decl. ¶ 7; Lucero Decl. ¶ 17; Romero Decl. ¶ 12.

68 Woehr Decl. ¶¶ 61–63.

25

69 Woehr Decl. ¶ 62; Ciecierski Decl. ¶ 7; Peuplie Decl. ¶ 9; Lucero Decl. ¶ 17; Romero

Decl. ¶ 11.

26

70 Woehr Decl. ¶ 68.

71 Ciecierski Decl. ¶ 7; Peuplie Decl. ¶ 9; Lucero Decl. ¶ 15.

27

72 Ciecierski Decl. ¶ 7; Peuplie Decl. ¶¶ 9, 11; Lucero Decl. ¶ 17.

73 Peuplie Decl. ¶ 9; Lucero Decl. ¶ 17; Romero Decl. ¶ 11.

28

74 Lucero Decl. ¶ 17; Woehr Decl. ¶ 62.

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 16 of 29

1 gloves.75

2

54. Plaintiffs have received only one or two masks, and when these masks are

3 broken or lost, Defendants have required Plaintiffs to share and swap each other’s masks in

4 order to leave the pod for things like laundry and legal calls.76

5

55. Plaintiffs receive, only once per week, a small amount of soap and shampoo.77

6 Plaintiffs have not received additional or different hygiene products since COVID-19

7 spread to Arizona.78 These bathroom supplies frequently are not enough to last the week,

8 especially because Plaintiffs—lacking other cleaning supplies—are forced to use their

9 personal allotment of soap to clean their plates, cups, or even cells.79 When people run out

10 of their weekly allotment of soap, they must purchase more—if they can afford to do so—

11 from the commissary at CoreCivic.80 If they cannot afford to do so, they have no soap at

12 all.81

13

56. Defendants also fail to adequately and consistently clean the pods and cells,

14 in order to disinfect and stop the spread of COVID-19. Plaintiffs are responsible for

15 cleaning their own pods and cells.82 When cleaning the pods and cells, Plaintiffs do not

16 receive or wear PPE, like gloves or masks.83 To clean both the pods and cells, Plaintiffs

17 receive only a small amount of cleaning solution—none of which is antibacterial.84 For

18 some, this cleaning solution runs out, every day, before the pod and cells are cleaned.85

19

20

75 Lucero Decl. ¶¶ 18–19; Romero Decl. ¶ 12; Woehr Decl. ¶¶ 31, 66–67.

21

76 Peuplie Decl. ¶ 10; Woehr Decl. ¶ 29.

77 Ciecierski Decl. ¶ 6; Lucero Decl. ¶ 15; Romero Decl. ¶ 10; Woehr Decl. ¶ 53.

22

78 Peuplie Decl. ¶ 8; Lucero Decl. ¶¶ 15–16; Romero Decl. ¶ 10; Woehr Decl. ¶ 29.

79 Lucero Decl. ¶ 15; Romero Decl. ¶ 10; Woehr Decl. ¶¶ 27–28, 52, 54.

23

80 Lucero Decl. ¶ 15; Romero Decl. ¶ 10.

81 Woehr Decl. ¶ 28 (“[D]etainees had requested additional soap and shampoo to clean 24 the showers with, since they frequently run out of ‘chemicals,’ but were told no by staff.”).

82 Peuplie Decl. ¶¶ 5–6; Lucero Decl. ¶¶ 12, 14; Romero Decl. ¶ 13; Woehr Decl. ¶¶ 48– 25 49.

83 Peuplie Decl. ¶ 5; Lucero Decl. ¶ 12; Romero Decl. ¶ 13.

26

84 Peuplie Decl. ¶ 5; Lucero Decl. ¶ 14.

85 Woehr Decl. ¶ 50; Peuplie Decl. ¶ 5; see also Woehr Decl. ¶ 51 (“At least two detainees 27 reported . . . . that they are not allowed to use the pink cleaner to clean their rooms, and stated

[they] have to resort to using their personal shampoo or soap to clean their rooms and their 28 toilets.”).

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 17 of 29

1 Some resort to cleaning with water only.86 And frequently used items—like communal

2 telephones—are not cleaned between uses, or even every day.87

3

57. Lacking any disinfecting products or wipes to clean the telephones between

4 uses and fearing the possibility of contracting COVID-19, women in the pods have resorted

5 to cleaning the phones with shirts or with menstrual pads wet down with water.88

6

58. Plaintiffs also have been exposed to numerous people who have showed

7 symptoms of COVID-19.89 Some of the people showing such symptoms were placed in

8 quarantine and then returned to the pod without being tested for COVID-19, even though

9 their symptoms continued.90

10

59. Despite the risks of COVID-19 spreading through CoreCivic and signs of

11 symptoms from people at CoreCivic, Defendants also have failed to even investigate the

12 spread at the facility. Only a handful of people at CoreCivic have been tested for COVID-

13 19 or checked for symptoms of COVID-19 by, for example, taking a person’s temperature.91

14 And even some showing symptoms of COVID-19 and requesting medical care have not

15 been tested.92

16

60. Defendants also have exposed Plaintiffs to unnecessary risk of exposure by

17 failing to provide them with information about COVID-19. Defendants generally have not

18 provided Plaintiffs with any information about COVID-19, measures for preventing its

19 spread, or the very real risks of contracting and spreading COVID-19 at CoreCivic.93 And

20 despite acknowledging elsewhere that COVID-19 has spread to CoreCivic and that at least

21 20 people have tested positive,94 Defendants have refused to inform the people most

22 needing this information: Plaintiffs. Defendants have failed to disclose to Plaintiffs that

23

86 Woehr Decl. ¶ 50.

24

87 Id. ¶¶ 33, 46; Lucero Decl. ¶ 13.

88 Lucero Decl. ¶ 13; Romero Decl. ¶ 13.

25

89 Lucero Decl. ¶ 19; Romero Decl. ¶ 15.

90 Romero Decl. ¶ 15.

26

91 Ciecierski Decl. ¶ 7; Peuplie Decl. ¶ 13; Lucero Decl. ¶ 20; Romero Decl. ¶ 14;

Woehr Decl. ¶¶ 19, 69–70.

27

92 Woehr Decl. ¶ 70.

93 Peuplie Decl. ¶ 11; Lucero Decl. ¶ 11; Ciecierski Decl. ¶ 8; Woehr Decl. ¶ 76.

28

94 Woehr Decl. ¶¶ 19, 76.

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 18 of 29

1 people at CoreCivic have tested positive for COVID-19.95 Defendants, in fact, have

2 affirmatively denied these positive tests, claiming they are merely “rumors” from other

3 facilities.96 But even the correctional officers at CoreCivic acknowledge (privately) these

4 positive tests.97

5

61. Furthermore, Defendants’ generic policies for “managing” COVID-19 are

6 inadequate to stop it from spreading.98 Defendants’ policy of quarantining groups of

7 persons who are transferred to CoreCivic on the same day, for example, will not stop

8 COVID-19 from continuing to spread within the facility. The World Health Organization

9 has reported that “the incubation period for COVID-19, which is the time between exposure

10 to the virus (becoming infected) and symptoms onset, is an average of 5–6 days, however

11 can be up to 14 days.”99 During this “pre-symptomatic” time, “infected persons can be

12 contagious.”100 Because Defendants have quarantined people together without social

13 distancing, proper PPE, or sanitation, detainees can spread the virus to each other and then

14 throughout the facility. One medical physician, in fact, concludes that this practice at

15 CoreCivic “does not conform to CDC guidelines and it would likely contribute to the overall

16 transmission rate.”101

17

62. Pursuant to CoreCivic Policy 14-103, Detainee Grievance Procedures (USMS

18 only), an emergency grievance is “[a] grievance for which the potential for personal injury

19 or irreparable harm exists.” By the terms of the same policy, “[g]rievance forms are readily

20

21

95 Peuplie Decl. ¶ 11; Ciecierski Decl. ¶ 8; Lucero Decl. ¶ 11; Romero Decl. ¶ 17.

96 Romero Decl. ¶ 17.

22

97 Ciecierski Decl. ¶ 8.

98 See CoreCivic Inc., How CoreCivic is Managing COVID-19,

23 https://www.corecivic.com/hubfs/_files/CoreCivic%20Response%20to%20COVID-1.pdf;

see also Media Statement, CoreCivic Inc., CoreCivic Statement on COVID-19 Prevention,

24 https://www.corecivic.com/en/corecivic-statement-on-covid-19-prevention; CoreCivic

Inc., Frequently Asked Questions Regarding COVID-19,

25 https://www.corecivic.com/hubfs/_files/FAQ%20Regarding%20COVID.pdf.

99 World Health Organization, Coronavirus disease 2019 (COVID-19) Situation

26 Report – 73 (Apr. 2, 2020), https://www.who.int/docs/default-

source/coronaviruse/situation-reports/20200402-sitrep-73-covid-

27 19.pdf?sfvrsn=5ae25bc7_2.

100 Id.

28

101 Goldenson Decl. ¶ 26.

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 19 of 29

1 available and easily accessible to detainees . . . in such a manner that the detainee is not

2 required to request a form from a correctional or other facility staff.” Where a grievance is

3 an emergency as defined above, “[a]n individual authorized to serve as Administrative Duty

4 Officer . . . shall take action to resolve the grievance within one (1) calendar day of receipt

5 of the grievance and provide a written response to the detainee.”

6

63. Fearful for her health and well-being at CoreCivic, Ms. Peuplie filed an

7 emergency grievance on or around April 22, 2020. She did not receive a response, so she

8 filed a second emergency grievance on April 30, 2020. At that time, she handed her

9 emergency-grievance form to a CoreCivic staff member and inquired about the status of her

10 first emergency grievance. The staff member replied that CoreCivic receives about 400

11 grievances per day and “we’ll get to it whenever we get to it.” Ms. Peuplie has not received

12 a response to either emergency grievance.102

13

64. Concerned for his safety given his health and the unsafe conditions at

14 CoreCivic, Mr. Ciecierski filed a grievance on or around April 15, 2020, requesting that

15 conditions be improved to reduce the risk of COVID-19 spreading in his pod. He did not

16 receive a response. He filed a second grievance asking for the same on April 30, 2020. He

17 tried to file both grievances as emergency grievances, but no emergency grievance forms

18 were available. He has continued to look for grievance forms, but they are rarely available.

19 He has not received a response to either grievance he filed.103

20

65. Concerned for her health and safety and survival under current conditions at

21 CoreCivic, Plaintiff Romero-Lorenzo attempted to file an emergency grievance on April

22 29, 2020. She went with several other people from her pod and asked for a grievance form

23 from an officer. The officer denied that anyone at CoreCivic had tested positive for COVID-

24 19 and told them that everything was fine. Ms. Romero-Lorenzo looked again and

25 eventually found a grievance form and filed an emergency grievance on May 1, 2020,

26 seeking improved conditions to protect against COVID-19. She has not received any

27

102 See Peuplie Decl. ¶¶ 14–15.

28

103 See Ciecierski Decl. ¶ 10.

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 20 of 29

1 response.104

2

66. Concerned for her health and safety, on May 1, 2020, Ms. Lucero-Gonzalez

3 filed an emergency grievance seeking improved conditions of confinement and protection

4 against the spread of COVID-19. She has not received a response. She also sought review

5 of her detention on April 20, 2020, based on her serious medical conditions and the risks

6 posed by the COVID-19 pandemic. That request was denied on April 28, 2020.105

7

67. Concerned about the conditions at CoreCivic, Mr. Enos filed emergency

8 grievances on April 19, 2020, and April 22, 2020, requesting safer and more sanitary

9 conditions to protect against the spread of COVID-19. Approximately one week after his

10 April 19 grievance he was informed by the unit manager in his pod that everything was

11 “fine” and there would be no changes. His grievance receipt was confiscated. Mr. Enos

12 also sought review of his detention in light of COVID-19 through the Bail Reform Act.

13 That request was denied on April 30, 2020.106

14

68. Now, with 20 confirmed cases among both detainees and staff, Defendants

15 have failed to implement policies and conditions to stop the outbreak of COVID-19

16 spreading through CoreCivic. Defendants thus have exposed Plaintiffs (and the public) to

17 unreasonable and increased risks of harm arising from this global pandemic.

18

VI. CLASS ACTION ALLEGATIONS

19

69. Plaintiffs bring this action, under Rule 23 of the Federal Rules of Civil

20 Procedure, on behalf of themselves and a class of similarly situated individuals.

21

70. Plaintiffs Romero, Peuplie, Ciecierski, and Enos seek to represent a class of

22 all current and future persons detained by Defendants Kline, Gonzales, and Washington at

23 CoreCivic pending trial (the “Pretrial Class”).

24

71. Plaintiff Lucero seeks to represent a class of all current and future persons

25 detained by Defendants Kline and Carvajal at CoreCivic following a judgment of

26

27

104 See Romero Decl. ¶¶ 17–18.

105 See Lucero Decl. ¶¶ 21–22.

28

106 See Enos Decl. ¶ 22.

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 21 of 29

1 conviction (the “Post-Conviction Class”).

2

72. Plaintiffs reserve the right to amend the class definitions or establish sub-

3 classes as appropriate if discovery or further investigation reveals that the class or a subclass

4 should be expanded or modified.

5

73. This action is brought, and may properly be maintained, as a class action

6 under federal law. It satisfies the numerosity, commonality, typicality, and adequacy

7 requirements for maintaining a class action under Rule 23(a) of the Federal Rules of Civil

8 Procedure.

9

74. Numerosity: The class is so numerous that joinder is impracticable. Joinder

10 is impracticable because (1) the classes are numerous; (2) the classes include future

11 members, and (3) the class members are incarcerated, rendering their ability to institute

12 individual lawsuits limited, particularly due to Defendants terminating legal visits at

13 CoreCivic, to reduced availability of legal calls at CoreCivic, and to court closures in

14 Arizona. Based on information and belief, there are several hundred people in the proposed

15 Pretrial Class and the proposed Post-Conviction Class.

16

75. Commonality: The claims of the Pretrial Class and the Post-Conviction Class

17 share common issues of fact and law, including whether Defendants’ policies and the

18 conditions of confinement at CoreCivic violate the Fifth and Eighth Amendments to the

19 United States Constitution. The resolution of these issues will drive the outcome of this

20 action.

21

76. Typicality: The claims of the named plaintiffs are typical of the claims of the

22 classes as a whole. Each named plaintiff is currently detained at CoreCivic and these

23 plaintiffs’ claims arise from the same policies, practices, and procedures (or lack thereof)

24 that provide the basis for all proposed class members’ claims.

25

77. Adequacy: The named plaintiffs are adequate class representatives who meet

26 all the requirements of Rule 23(a)(4) of the Federal Rules of Civil Procedure. The named

27 plaintiffs maintain the requisite personal interest in the outcome of this action, will fairly

28 and adequately represent the interests of the class, understand the responsibilities as a class

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 22 of 29

1 representative, and have retained pro bono counsel with experience and success in the

2 prosecution of civil-rights litigation. Counsel for Plaintiffs know of no conflicts among

3 proposed class members or between counsel and proposed class members.

4

78. Defendants have acted on grounds generally applicable to all proposed class

5 members, and this action seeks declaratory and injunctive relief. Plaintiffs therefore seek

6 class certification under Rule 23(b)(2).

7

79. In the alternative, the requirements of Rule 23(b)(1) of the Federal Rules of

8 Civil Procedure are satisfied, because prosecuting separate actions would create a risk of

9 inconsistent or varying adjudications with respect to individual class members that would

10 establish incompatible standards of contact for the party opposing the proposed classes.

11

VII. CLAIMS FOR RELIEF

12

First Claim for Relief

13

Unconstitutional Conditions of Confinement in Violation of

the Due Process Clause of the Fifth Amendment to the U.S. Constitution

14

The Pretrial Class against Defendants Kline, Gonzales, and Washington

15

80. The Pretrial Class incorporates by reference Paragraphs 1 through 79 above

16 as though fully set forth herein.

17

81. The Due Process Clause guarantees that no person shall “be deprived of life,

18 liberty, or property without due process of law.” U.S. Const. amend. V. Based on this

19 guarantee, “when the [government] takes a person into its custody and holds him there

20 against his will, the Constitution imposes upon [the government] a corresponding duty to

21 assume some responsibility for [the person’s] safety and general well-being.” DeShaney v.

22 Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199–200 (1989). This responsibility

23 includes the “unquestioned duty to provide reasonable safety for all residents and personnel

24 within the institution” and “to provide adequate … medical care.” Youngberg v. Romeo,

25 457 U.S. 307, 324 (1982); accord DeShaney, 489 U.S. at 200 (observing that “when the

26 State by the affirmative exercise of its power so restrains an individual’s liberty that it

27 renders him unable to care for himself,” then the State assumes the responsibility “to

28 provide for his basic human needs—e.g., food, clothing, shelter, medical care, and

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 23 of 29

1 reasonable safety”). The government violates these obligations by exposing pretrial

2 detainees—i.e., individuals who have not been convicted of the charges for which they

3 stand—to conditions that are “objectively unreasonable.” Kingsley v. Hendrickson, 135 S.

4 Ct. 2466, 2473 (2015); Gordon v. Cty. of Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018)

5 (“[C]laims for violations of the right to adequate medical care ‘brought by pretrial detainees

6 against individual defendants under the [Due Process Clause]’ must be evaluated under an

7 objective deliberate indifference standard.” (quoting Castro v. County of Los Angeles, 833

8 F.3d 1060, 1070 (9th Cir. 2016) (en banc))).

9

82. Defendants have violated the Pretrial Class’s rights under the Due Process

10 Clause of the Fifth Amendment to the United States Constitution, by failing to provide for

11 the Pretrial Class’s reasonable safety and by failing to provide adequate medical care.

12

83. Defendants also have violated the Pretrial Class’s Fifth Amendment rights

13 because “the challenged governmental action is not rationally related to a legitimate

14 governmental objective or . . . it is excessive in relation to that purpose.” Kingsley, 135 S.

15 Ct. at 2473–74.

16

84. Defendants have made an intentional decision regarding the conditions under

17 which the Pretrial Class have been confined and regarding the denial of medical care.

18

85. The conditions of confinement and the denial of needed medical care have

19 put the Pretrial Class at substantial risk of suffering serious harm.

20

86. Defendants have not taken reasonable available measures to abate or reduce

21 the risk of serious harm, even though a reasonable custodian under the circumstances would

22 have understood the high degree of risks involved—making the consequences of

23 Defendants’ conduct obvious.

24

87. By not taking such measures, Defendants have placed the Pretrial Class at risk

25 of irreparable harm or even death.

26

88. Defendants have known, or reasonably should have known, about the

27 substantial risk to the Pretrial Class’s health or safety—including the risks posed by

28 COVID-19—and have disregarded such risks.

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 24 of 29

1

89. Defendants have subjected the Pretrial Class to conditions of confinement that

2 increase the risk of contracting COVID-19, a disease for which there is no known vaccine,

3 treatment, or cure.

4

90. Defendants have exposed the Pretrial Class to a substantial, grave, and

5 unjustifiable risk of serious harm, including death.

6

91. Defendants’ continued detention of the Pretrial Class under the current

7 conditions fails to protect the Pretrial Class from the risks of contracting COVID-19.

8

92. As a result of Defendants’ unconstitutional actions and omissions, the Pretrial

9 Class members have suffered—and likely will continue to suffer—irreparable injury.

10

Second Claim for Relief

11

Unconstitutional Conditions of Confinement in Violation of

the Eighth Amendment to the U.S. Constitution

12

Pretrial Class against Defendants Kline, Gonzales, and Washington

13

Post-Conviction Class against Defendants Kline and Carvajal

93. Plaintiffs incorporates by reference Paragraphs 1 through 92 above as though 14

fully set forth herein. 15

94. The Eighth Amendment to the United States Constitution protects Plaintiffs 16

from “cruel and unusual punishments.” As part of this right, the government must protect 17

incarcerated persons from a substantial risk of serious harm to their health and safety. See 18

Farmer v. Brennan, 511 U.S. 825, 832-33 (1994); Estelle v. Gamble, 429 U.S. 97, 104 19

(1976); see also DeShaney, 489 U.S. at 200 (“[W]hen the [government] takes a person into 20

its custody and holds him there against his will, the Constitution imposes upon [the 21

government] a corresponding duty to assume some responsibility for [the person’s] safety 22

and general well-being.”). This obligation requires Defendants to protect Plaintiffs from 23

infectious diseases like COVID-19; Defendants may not wait until Plaintiffs or others test 24

positive for the virus and an outbreak grows larger. See Helling v. McKinney, 509 U.S. 25, 25

33-34 (1993) (“That the Eighth Amendment protects against future harm to inmates is not 26

a novel proposition.”); Farmer, 511 U.S. at 833 (“[H]aving stripped [prisoners] of virtually 27

every means of self-protection and foreclosed their access to outside aid, the government 28

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 25 of 29

1 and its officials are not free to let the state of nature take its course.”).

2

95. By failing to provide such protection, Defendants have shown and continue

3 to show deliberate indifference to a substantial risk of serious harm. Thus, Defendants have

4 violated and continue to violate the Eighth Amendment.

5

96. Defendants’ acts and failures to act have placed the Plaintiffs at risk of

6 irreparable harm or even death.

7

97. Defendants have exposed the Plaintiffs to a risk of harm that today’s society

8 does not tolerate, namely the risk of exposure to COVID-19.

9

98. Plaintiffs are exposed to a substantial risk of serious harm to their health and

10 safety, including the possibility of death, due to the presence and spread of COVID-19.

11

99. Defendants have acted with deliberate indifference to the risks posed to

12 Plaintiffs, due to the presence and spread of COVID-19.

13

100. Defendants have known of, or are presumed to have known of, the risks that

14 COVID-19 poses to Plaintiffs.

15

101. The risks posed by COVID-19 are and have been obvious to Defendants.

16

102. Defendants’ response to COVID-19 has not been reasonable.

17

103. As a result of Defendants’ actions, Plaintiffs have suffered—and likely will

18 continue to suffer—irreparable injury.

19

VIII. PRAYER FOR RELIEF

20

WHEREFORE, Plaintiffs respectfully request that this Court grant the following

21 relief:

22

1. Assume jurisdiction over this action;

23

2. Certify the proposed classes;

24

3. Issue a declaration that Defendants’ acts and omissions violate,

25

a. with respect to the Pretrial Class, the Due Process Clause of the Fifth

26

Amendment to the United States Constitution,

27

b. with respect to the Post-Conviction Class, the Eighth Amendment to

28

the United States Constitution;

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 26 of 29

1

4. Enter a temporary restraining order and/or preliminary injunction requiring

2 an independent Rule 706 expert to lead a review of CoreCivic to determine whether

3 Defendants have implemented consistent social (or physical) distancing, novel coronavirus

4 testing procedures, and hygienic practices sufficient to reasonably protect Plaintiffs and

5 proposed class members from contracting COVID-19 while in Defendants’ custody. The

6 initial review will be completed within 48 hours of this Court’s order. If the expert

7 concludes that Defendants have not implemented the social and physical distancing, novel

8 coronavirus testing procedures, and hygienic practices sufficient to reasonably protect

9 Plaintiffs and Class Members from contracting COVID-19, then the expert will submit

10 within 24 hours recommendations as to how such practices should be achieved and this

11 Court will order Defendants to: (a) begin implementing the expert’s recommendations

12 immediately, (b) provide weekly updates to Plaintiffs’ counsel and this Court on their

13 progress, and (c) complete the implementation of the recommendations within the timeline

14 established by the expert, unless Defendants can show good cause as to why an extension

15 is necessary;

16

5. Enter a preliminary and/or permanent injunction to ensure:

17

a. That all detainees and staff can practice social (or physical) distancing

18

at all times (with exceptions for exigent medical and security needs),

19

b. That every detainee is able to practice adequate hygiene including by

20

providing access, free of charge to:

21

i. a sufficient supply of hand soap, disposable paper towels,

22

and hot water, for frequent and adequate hand washing,

23

ii. hand sanitizer containing at least 60% alcohol, when not in

24

a location where the detainee can access hot water and soap

25

for adequate hand washing, and

26

iii. disinfectant hand wipes or cleaning products effective

27

against the virus that causes COVID-19,

28

c. That frequently touched surfaces be cleaned and disinfected with

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 27 of 29

1

disinfectant products effective against the virus that causes COVID-19

2

multiple times per day,

3

d. That every staff member and detainee has access to adequate personal

4

protective equipment including masks and gloves,

5

e. That every staff member and detainee exposed to COVID-19 is

6

quarantined in a non-punitive setting and tested for COVID-19, and

7

f. That CoreCivic implement novel coronavirus testing procedures

8

consistent with CDC and other public health guidance;

9

6. If the expert’s recommendations cannot be achieved without reducing the

10 detained population at CoreCivic, issue writs of habeas corpus on the ground that Plaintiffs’

11 continued detentions violate the Due Process Clause or the Eighth Amendment, and order

12 Plaintiffs’ release;

13

7. Award Plaintiffs their attorneys’ fees and costs under 5 U.S.C. § 504 and 28

14 U.S.C. § 2412 (the Equal Access to Justice Act, as amended), and any other applicable law;

15 and

16

8. Award any further relief that this Court deems appropriate.

17

18

19

20

21

22

23

24

25

26

27

28

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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 28 of 29

1 Dated: May 8, 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

PERKINS COIE LLP
By: /s/ Matthew R. Koerner Jean-Jacques Cabou (#022835) Matthew R. Koerner (#035018) Margo R. Casselman (#034963) Benjamin C. Calleros (#034763) PERKINS COIE LLP 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788
Emma Andersson* eandersson@aclu.org Taylor Brown* tbrown@aclu.org Alejandro Ortiz* ortiza@aclu.org Chase Strangio* cstrangio@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Fl. New York, New York 10004 Telephone: 917-345-1742
Somil Trivedi* strivedi@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th St., NW Washington, DC 20012 Telephone: 202-715-0802
Jared G. Keenan (#027068) jkeenan@acluaz.org Christine K. Wee (#028535) CWee@acluaz.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF ARIZONA 3707 N. 7th Street, Suite 235 Phoenix, AZ 85014
Attorneys for Plaintiffs *Applications for pro hac vice forthcoming.
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Case 2:20-cv-00901-DJH--DMF Document 1 Filed 05/08/20 Page 29 of 29

1

CERTIFICATE OF SERVICE

2

I hereby certify that on May 8, 2020, I electronically transmitted the attached

3 documents to the Clerk’s Office using the CM/ECF System for filing and transmittal of

4 same to:

5

6

Kris Kline, Warden of the Central Arizona Florence Correctional Complex Kristopher.kline@corecivic.com

7

publicaffairs@corecivic.com

8

David Gonzales, U.S. Marshal for the District of Arizona

9

District of Arizona (D/AZ)

U.S. Marshal: David Gonzales

10

Sandra Day O'Connor U.S. Courthouse

401 W. Washington St., SPC 64, Suite 270

11

Phoenix, AZ 85003-2159

12

David.Gonzales2@usdoj.gov

13

Donald W. Washington, Director of the U.S. Marshals Service

14

District of Arizona (D/AZ)

U.S. Marshal: Donald W. Washington

15

Sandra Day O'Connor U.S. Courthouse

401 W. Washington St., SPC 64, Suite 270

16

Phoenix, AZ 85003-2159

17

Michael Carvajal, Director of the Federal Bureau of Prisons

18

Two Renaissance Square 40 N. Central Avenue, Suite 1800

19

Phoenix, AZ 85004-4449

mcarvajal@bop.gov

20

21 By: Jennifer McNamara Perkins Coie, LLP
22

23

24

25

26

27

28

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5/8/2020

Case 2:20-cv-00901-DJH--DwwMw.Fazd.uDscoocurutsm.goev/ncgti-1bi-n1/genFerialtee_dciv0il5_j/s0448.p/l20 Page 1 of 2
UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Civil Cover Sheet

This automated JS-44 conforms generally to the manual JS-44 approved by the Judicial Conference of the United States in September 1974. The data is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. The information contained herein neither replaces nor supplements the filing and service of pleadings or other papers as required by law. This form is authorized for use only in the District of Arizona.
The completed cover sheet must be printed directly to PDF and filed as an attachment to the Complaint or Notice of Removal.

Maria Guadalupe Lucero-Gonzalez ;

Plaintiff(s):

Claudia Romero-Lorenzo ; Tracy Peuplie ; James Tyler Ciecierski ;

Ann

Marvin Lee Enos

Kris Kline , Warden of the Central Arizona Florence Correction Complex; David Gonzalez , U.S. Defendant(s): Marshal for the District of Arizona; Michael Carvajal , Director of the Federal Bureau of Prisons; Donald W. DWashington

County of Residence: Pinal

County of Residence: Pinal

County Where Claim For Relief Arose: Pinal

Plaintiff's Atty(s):
Jean-Jacques Cabou (Maria Guadalupe LuceroGonzalez ; Claudia Romero-Lorenzo ; Tracy Ann Peuplie ; James Tyler Ciecierski ; Marvin Lee Enos ) Perkins Coie LLP 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012 6023518119

Defendant's Atty(s):

Matthew R. Koerner (Maria Guadalupe LuceroGonzalez ; Claudia Romero-Lorenzo ; Tracy Ann Peuplie ; James Tyler Ciecierski ; Marvin Lee Enos ) Perkins Coie LLP 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012 6023518119

Margo Casselman (Maria Guadalupe LuceroGonzalez ; Claudia Romero-Lorenzo ; Tracy Ann Peuplie ; James Tyler Ciecierski ; Marvin Lee Enos ) Perkins Coie LLP 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012 6023518119

www.azd.uscourts.gov/cgi-bin/generate_civil_js44.pl

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5/8/2020

Case 2:20-cv-00901-DJH--DwwMw.Fazd.uDscoocurutsm.goev/ncgti-1bi-n1/genFerialtee_dciv0il5_j/s0448.p/l20 Page 2 of 2

Benjamin C. Calleros (Maria Guadalupe LuceroGonzalez ; Claudia Romero-Lorenzo ; Tracy Ann Peuplie ; James Tyler Ciecierski ; Marvin Lee Enos ) Perkins Coie LLP 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012 6023518119

II. Basis of Jurisdiction:

2. U.S. Government Defendant

III. Citizenship of Principal Parties (Diversity Cases Only)
Plaintiff:- N/A Defendant:- N/A

IV. Origin :

1. Original Proceeding

V. Nature of Suit:

440 Other Civil Rights

VI.Cause of Action:

Violations of Fifth and Eighth Amendment rights

VII. Requested in Complaint Class Action: Yes
Dollar Demand: Jury Demand: Yes

VIII. This case is not related to another case.

Signature: Matthew R. Koerner Date: 2020-05-08
If any of this information is incorrect, please go back to the Civil Cover Sheet Input form using the Back button in your browser and change it. Once correct, save this form as a PDF and include it as an attachment to your case opening documents.
Revised: 01/2014

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Case 2:20-cv-00901-DJH--DMF Document 1-2 Filed 05/08/20 Page 1 of 1

INDEX OF EXHIBITS TO COMPLAINT

Exhibit 1 2 3 4 5 6 7

Document Declaration of Christina M. Woehr (May 7, 2020) Declaration of Joseph Goldenson, M.D. (May 7, 2020) Declaration of Maria Guadalupe Lucero-Gonzalez (May 4, 2020) Declaration of Claudia Romero-Lorenzo (May 4, 2020) Declaration of Tracy Ann Peuplie (May 4, 2020) Declaration of James Tyler Ciecierski (May 4, 2020) Declaration of Marvin Lee Enos (Apr. 30, 2020)

148162106.1

Case 2:20-cv-00901-DJH--DMF Document 1-3 Filed 05/08/20 Page 1 of 12
EXHIBIT 1

Case 2:20-cv-00901-DJH--DMF Document 1-3 Filed 05/08/20 Page 2 of 12

1

DECLARATION OF CHRISTINA M. WOEHR

2

1. My name is Christina M. Woehr, and I am an Assistant Federal Public Defender in

3

Tucson, Arizona. I have been employed by the Federal Public Defender (“FPD”) for

4

the District of Arizona since 2017; previously I worked as an AFPD in the

5

Southern District of Texas. The statements and opinions in this declaration are my

6

own, and do not represent those of my employer, the FPD.

7

2. The FPD represents hundreds of indigent people charged with federal crimes in the

8

District of Arizona, many of whom remain detained in U.S. Marshal Service custody

9

prior to conviction and sentencing. The majority of our detained pretrial clients are

held at the Central Arizona Florence Correctional Complex (“CCA”) in Florence, 10

Arizona.

11 3. At this time, based on a search of FPD records, the FPD has hundreds of clients with

12 open cases who are detained at CCA. This number includes pretrial detainees. as

13

well as post-conviction detainees who are awaiting sentencing. It is also my

14

understanding, based on communications with my colleagues and clients, that a

15

higher-than-normal number of our clients who have been sentenced remain at CCA,

16

instead of being transferred into Bureau of Prisons custody, due to the pandemic.

17

4. Due to COVID-19, court procedures in the District of Arizona have changed

18

drastically. General Order 20-15, dated March 20, 2020, noted the national

19

emergency, as well as the CDC recommendation that people practice social

20

distancing and “attempt to keep physical distance between themselves and other

21

people,” in order to slow the spread of COVID-19. General Order 20-15 continued

22

all civil and criminal jury trials set to commence in the District of Arizona on or

23

before May 4, 2020, pending further order of the court. A later General Order

20-20, dated April 16, 2020, extended this continuance and continued civil and 24
criminal jury trials set to commence on or before June 1, 2020, pending further order. 25
5. Furthermore, for felony criminal cases, General Order 20-20 suspended grand jury 26
proceedings through June 1, and ordered that the period of time for presenting the

27

case to the grand jury shall be extended 30 days from the indictment deadline for any

28

cases that would have required presentment to the grand jury during this period.

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1

6. Notably, General Order 20-20 found that “the period of the continuances

2

implemented by this General Order will be excluded under the Speedy Trial Act,”

3

with leave for individual defendants to file a motion seeking an exception to this

4

order to exercise their speedy trial rights. This means that our clients face significant

5

delay in adjudication of their criminal cases. For example, I have one client who

6

was arrested and detained at the end of February, who has yet to be indicted.

7

7. In response to the outbreak, our clients are no longer transported to court for

hearings, including initial appearances (“IAs”). Instead, IAs in the district are 8

conducted via videoconference, with our clients appearing via videolink from CCA. 9
This means that clients that could otherwise have been released at initial appearances 10
must instead go to the CCA facility, where they seem to be held with others in their
11 arrest cohort. If they are released, it is from the CCA facility, putting the burden on

12

the indigent client’s family to arrange their transportation home from Florence.

13

8. This also means that FPD and defense attorneys only have a very limited time in

14

which they can speak to their clients prior to IAs. Defense attorneys are allowed 15

15

minutes apiece to meet with their clients via phone; the call disconnects

16

automatically after 15 minutes, which is an extremely short time period in which to

17

explain charges, explain the initial appearance procedure, exchange contact

18

information with the client, explain the upcoming preliminary and detention hearing

19

procedures, and obtain a knowing and voluntary waiver, if applicable, of either of

20

those hearings.

21

9. Generally over the past month or so, it has been my experience that magistrate judges

22

in Tucson have not been able to schedule Change of Plea hearings until the summer,

except for defendants facing very short sentences, meaning that even if a felony 23
client wants to plead guilty and proceed to sentencing, it is very difficult for them to 24
begin that process. Particularly in the Tucson division, priority for Change of Plea
25 hearings has been given to “flip/flop” cases, or defendants who are pleading guilty

26

to a misdemeanor and are facing less time than defendants in felony cases.

27

28

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1

10. This means that a felony defendant in Tucson whose sentencing guideline

2

calculations reflect a recommended sentence of over six months, but who has

3

mitigating health or disability factors justifying a downward variance in sentencing,

4

will face delays and cannot swiftly plead guilty and proceed to sentencing, even if

5

they desire to do so, because of the delays they face in pleading guilty.

6

11. In addition, it is my understanding, based on communications from the Tucson CJA

7

Panel Representative, that we can make requests to expedite the normally-lengthy

period it takes for completion of a Presentence Report, but only for clients facing 8

sentences of six months or less. 9

12. Due to the outbreak of COVID-19, our ability to consult with our clients has been 10
severely restricted. Out of concern for the safety of our clients, as well as attorneys

11 and staff, the FPD office shifted to videoconference and teleconference meetings in

12

lieu of in-person visitation, following the advice of health experts and the CJA Panel

13

Representative, who strongly discourage in-person legal visitation.

14

13. The pandemic has made it very difficult to effectively communicate with our clients.

15

In March, we began moving away from in-person visitation and shifted to video-

16

teleconference (“VTC”) or teleconference meetings with our clients at CCA.

17

However, as the court began having our clients appear by VTC for their hearings, it

18

has become very difficult to obtain a VTC timeslot to meet with our clients. Many

19

of our VTC meetings have been abruptly cancelled. Some VTC timeslots are

20

available before 8 am or after 5 pm, but attorneys have to compete with each other

21

for those timeslots, as well as the probation office, which conducts Presentence

22

Interviews at those times as well. It is also my understanding from speaking to my

colleagues that currently, detainees housed in certain pods have no access to VTC. 23

14. Timeslots are also scarce for dedicated legal calls at CCA, which must be requested 24
at least 48 hours in advance. In addition, many of my colleagues have had legal calls

25 cancelled by the facility. This means that the fastest way to get a message to my

26

detained clients is to ask a family member to have them call me, or to ask the facility

27

to send them a message to call me from one of the telephones in their pod. Such

28

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1

communication is, of course, better than nothing, but background noise and lack of

2

privacy make such calls suboptimal for privileged legal discussions. And if their

3

pod is placed on “lockdown,” my clients generally cannot use the phone to call me.

4

15. This has made it very difficult to meaningfully consult with our clients about their

5

cases. Some of my clients have mental health issues or developmental delays. They

6

have been found competent, but additional time and care is still required in

7

explaining complex legal concepts to them. Conversing only by phone or blurry

VTC means that I cannot show them the discovery in their case, and cannot use 8

visual aids to help explain complex concepts, such as the Sentencing Guidelines. 9

This means that extra time is required to speak to them, which we do not always 10
have. At least one of my clients speaks O’Odham as his first language, and English

11 is his second language, and the lack of visual aids and sufficient time to speak with

12

him makes communication very difficult. Another one of my clients spoke an

13

indigenous dialect, and I could not communicate with him without an interpreter,

14

making it nearly impossible for him to call me himself and communicate any sudden

15

emergencies or problems.

16

16. For my English-speaking clients, it is still very difficult to have a conversation about

17

difficult decisions in their case when they are surrounded by other inmates making

18

noise near the phone, and they lack privacy.

19

17. This, combined with the continuances and delays in their cases, has left many of my

20

clients frustrated, frightened, and feeling abandoned. I frequently receive client

21

phone calls in which detained clients ask me “what is going on” with their case or

22

ask me why their sentencing or plea deadlines were continued.

18. Due to outbreaks in jails and prisons across the country, as well as the opinions of 23

public health experts that incarcerated individuals are particularly vulnerable to an 24
outbreak of COVID-19, our office is extremely concerned about the health of our

25 detained clients.

26

19. As of May 6, 2020, five detainees at CCA have tested positive for COVID-19; with

27

eleven detainees awaiting test results. At least four CCA staff have tested positive.

28

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1

20. It is my understanding, from emails from a FPD supervisor and from speaking to

2

clients, that CCA now requires staff to wear masks. Notably, detainees are forbidden

3

from wearing N95 masks, which is considered contraband for detainees. Based on

4

the statements of about 8 detainees, it is my understanding that CCA now requires

5

detainees to wear surgical masks when they leave their pod, but does not require

6

detainees to wear masks while within their “pod,” or the housing unit where

7

detainees live.

21. Despite the drop in new arrests, CCA still sees turnover, both from new detainees 8

arrested on new charges, as well as arrests of defendants previously released on 9

pretrial conditions of release. Pretrial violation arrests for minor violations are 10
ongoing, despite the pandemic. For example, one of my clients now detained at

11 CCA, who was previously residing in a halfway house, was arrested at the end of

12

March for the alleged pretrial violation of possession of a tobacco product—a legal

13

substance that was against halfway house rules. Another one of my clients at CCA

14

had been released pretrial for about a year without incident, but was arrested at the

15

end of March for walking out of his apartment (without leaving the apartment

16

complex) for 20 minutes at night, a violation of his home confinement.

17

22. It is my understanding, based on communications from the CJA Panel

18

Representative, new arrestees at CCA are placed in “cohorts,” so that groups of

19

detainees are housed together based on their arrest date, and remain together for 14

20

days in separate housing.

21

23. As of May 5, 2020, it is my understanding, based on communications from a trial

22

unit supervisor in my office, that five detainees at CCA developed symptoms and

tested positive for COVID-19; they were previously housed in “Lima” (where new 23

intakes were housed). More detainees previously housed in Lima are awaiting 24
COVID-19 test results. Detainees in Lima had been exposed to an employee who

25 tested positive for COVID-19. Notably, at least two CCA detainees from other

26

housing units—not Lima—have also developed symptoms and are awaiting

27

COVID-19 test results.

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1

24. Given the concern for our clients’ health and safety, I spoke with several of my

2

detained clients, as well my colleagues and detained clients of my colleagues at the

3

FPD, regarding conditions within CCA. This declaration summarizes the responses

4

of 11 of our clients between April 24, 2020 to May 6, 2020, with respect to what

5

they have observed at CCA.

6

25. I do not have personal knowledge of the conditions in any of these facilities. My

7

knowledge of these conditions is based on information relayed to me through clients

or attorneys working in my office. 8

26. On or around April 29, 2020, one detainee in the Lima unit told me that he was 9
housed in a 2-man cell and shared a room with another detainee. He shared a 10
common area (the “day room”) with his entire pod.
11 27. He reported that the communal showers should be cleaned twice a day, but that

12

detainees were only given enough “chemicals” (cleaner) to do a proper cleaning once

13

a day, so they cleaned the showers with water alone in the afternoon.

14

28. He reported that he and his fellow detainees had requested additional soap and

15

shampoo to clean the showers with, since they frequently run out of “chemicals,” but

16

were told no by staff.

17

29. Detainees in his pod were given one disposable mask per person and instructed to

18

reuse them. Detainees did not have gloves, nor did they have access to hand

19

sanitizer.

20

30. He reported that his pod was released from quarantine last week for a few hours,

21

seemingly by mistake, because they went back to general population for a few hours,

22

and then were returned back to quarantine.

31. He stated that nurses had begun to take their temperatures twice per day. Staff wear 23
masks and gloves, but he reported that he sees staff remove their mask and put them 24
back on.
25 32. Staff bring their meals on disposable Styrofoam trays, and detainees can either eat

26

in the day room or their cell.

27

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Case 2:20-cv-00901-DJH--DMF Document 1-3 Filed 05/08/20 Page 8 of 12

1

33. He reported that his pod had 4 phones, placed very close to each other, meaning that

2

he had to stand close to others while on the phone. The phones are not cleaned in

3

between individual uses.

4

34. Social distancing is not possible for detainees in regular housing.

5

35. Beyond the Lima unit, US Marshals inmates are housed in housed in several

6

pods/units across two buildings. Nine detainees that I spoke with, across different

7

pods and units, indicated that their pod had shared rooms where detainees slept,

along with a common area or “day room” with tables, chairs, televisions, and 8

microwaves, as well as communal showers. 9
36. Eight detainees indicated telephones in the day room areas of their pods were placed 10
considerably less than six feet apart, requiring them to stand within 2 to 3 feet to
11 other detainees while using the phone to call their attorneys or families.

12

37. Eight detainees stated that there is almost always a line of detainees waiting to use

13

telephones in their pod, and that it was not possible to stand 6 feet away from others

14

in the line.

15

38. Nine detainees reported that they eat meals in the day room for their pod, where each

16

table seats 4 detainees; detainees sit less than 6 feet apart while eating meals. Each

17

table has four stools around it. The stools and the tables are bolted to the ground. The

18

tables are generally close together, less than six feet apart.

19

39. Detainees are also able to buy additional food from the commissary, which they cook

20

in the microwaves and eat in the day room.

21

40. Moreover, several detainees indicated that there is almost always a line of detainees

22

waiting to use the microwaves, and that it was not possible to stand 6 feet away from

others in the line. 23
41. Microwaves and telephones are generally cleaned once or twice a day, and are not 24
cleaned between individual uses.
25 42. Nine detainees reported that they share rooms. Some detainees share a room with

26

one other person, others share a room with up to 13 other detainees. Each shared

27

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1

room has one toilet to be shared by all occupants; that toilet is not sanitized between

2

individual uses.

3

43. These detainees reported that their beds are much closer than 6 feet apart from their

4

cellmates’ beds, meaning they generally sleep a few feet away from other detainees.

5

44. Nine detainees reported that they use their pod’s communal showers.

6

45. Four or five detainees reported that other detainees blow their noses and cough in

7

the shower in the communal showers at times. One woman reported that there were

often feminine hygiene products and sometimes feces on the shower floor. 8

46. The communal showers are not cleaned or disinfected between individual uses. 9
47. One detainee housed in the medical unit, for non COVID-19 reasons, reported on 10
April 29, 2020, that she had her own room, but did not have access to daily showers,
11 nor did she have a toilet in her room. She had to urinate and defecate in a bedpan.

12

48. CCA relies on detainee cleaning crews for sanitation.

13

49. Nine detainees reported that showers, common areas, and even their own cells had

14

to be cleaned by the detainees themselves.

15

50. Detainee cleaning crews are provided with a pink liquid disinfectant or “chemicals”

16

to clean the common areas, such as the day room or showers. Three detainees report

17

that the facility does not provide sufficient disinfectant to conduct thorough twice-a-

18

day cleanings, and they have to resort to cleaning common areas and showers with

19

water or else dilute the cleaning chemicals with water.

20

51. At least two detainees reported on April 30, 2020, and May 5, 2020, that they are not

21

allowed to use the pink cleaner to clean their rooms, and stated have to resort to using

22

their personal shampoo or soap to clean their rooms and their toilets.

52. Detainees are not always given a sufficient amount of personal hygiene products 23
to last through the week. 24
53. Once a week on “hygiene day,” detainees are given two small travel size bars of
25 soap, along with a small travel size bottle of shampoo (approximately 100 ml), toilet

26

paper, a small toothpaste, and toothbrush.

27

28

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1

54. At least three detainees reported that the soap provided did not always last them until

2

the end of the week, because they had to use it for personal hygiene, hand hygiene,

3

as well as cleaning their cell on occasion. Another detainee stated that he bought

4

soap through the commissary to supplement the soap provided by CCA.

5

55. Detainees have the option of buying full-sized bar soap at the commissary, but not

6

all detainees can afford this option.

7

56. Detainees are not provided with Kleenex or tissue. Detainees reported that if you

had to sneeze or blow your nose, you had to use your hand or toilet paper, if you 8

were in your cell and had some nearby. 9
57. Temperature checks are not conducted daily in normal pods. CCA places the burden 10
on detainees to seek medical attention if they feel sick.
11 58. One detainee in the medical unit for non-COVID-19 reasons reported that she did

12

have her own room, but that there was no toilet in the room. She had to use a bedpan

13

to urinate and defecate. There was no shower in her room, and she could not shower

14

daily. In order to make a phone call, she had to request to use a cordless phone that

15

staff brought to her. She did not see it disinfected between uses.

16

59. The lack of personal protective equipment is also a concern for detainees at CCA.

17

60. Detainees are not given gloves unless they are on duty in a specific job (such as food

18

server or kitchen worker), nor are they given hand sanitizer.

19

61. Not all detainees have been given masks yet; and not all detainees who have a mask

20

wear it daily.

21

62. CCA has given many, but not all, detainees a single disposable mask, to be worn

22

when leaving their pod. One detainee reported on April 30, 2020, that “mask usage

isn't mandatory within the tank, and we have to hold on to our [disposable] masks, 23
but I don’t even have one yet. The only ones that get masks are the detainees that 24
leave the tank.”
25 63. One detainee reported on May 5, 2020, that he still did not have a mask, even though

26

“I have been asking for a mask since I got here.”

27

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1

64. Detainees wear masks when leaving their pod to visit the medical provider or their

2

counselor.

3

65. One detainee who visited the medical provider in mid-April reported that for that

4

visit, neither he nor the medical provider wore a mask.

5

66. One detainee told me on May 5, 2020, that he had visited the CCA medical provider

6

the week before, and reported that although he was wearing a mask and the medical

7

provider wore a mask, the guard in the medical area was not wearing a mask.

67. Detainees state that guards do not all wear N95 masks; instead guards wear a variety 8

of masks, including cloth masks, N95 masks, surgical masks, or simply neckgaiters 9
pulled up over their mouth. Guards do not always wear gloves. 10
68. One client told me that guards had made fun of the detainees’ surgical masks, telling
11 her “they don’t work” against the virus.

12

69. The lack of widespread testing in the facility is a concern to detainees. It is my

13

understanding based on communications from a FPD supervisor that, at this time,

14

less than 20 detainees in the facility have been tested in the facility.

15

70. One detainee told me she had symptoms of a cough, chest pain, and shortness of

16

breath, and that she made a medical request on about May 4, 2020. She was able to

17

visit the CCA medical provider on May 6, 2020. Both the detainee and the provider

18

were wearing masks during the visit, but detainees within her pod are not wearing

19

masks inside her pod. This detainee was not moved out of her pod, nor was she

20

tested for COVID-19 at that time.

21

71. Food preparation and service is also a safety concern for detainees.

22

72. One detainee housed in Golf pod, who works in the CCA kitchen, reported on April

28, 2020, that all meals for detainees in the facility are prepared by detainees. 23
Normally, approximately 16 detainees work together in one shift in the kitchen. 24
Detainees preparing food stand about arms-length apart, while a guard watches.
25 73. Detainees also work as servers, distributing meals to fellow detainees. Not all

26

servers wear masks while distributing meals.

27

28

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Case 2:20-cv-00901-DJH--DMF Document 1-3 Filed 05/08/20 Page 12 of 12

74. For pods that are not in quarantine, meals are generally served on plastic reusable

trays. The trays are returned after meals and then cleaned with water and soap, then

with disinfectant, then rinsed off in clean water.

75. Kitchen workers are patted down and searched after their shift by guards who, as of

April 28, 2020, did not always use masks or gloves when conducting the searches.

76. At least three detainees reported a lack of overall communication from CCA about

7

the virus. One told me on April 28, 2020, that "a supervisor told us there is no virus

in our pod, but we don't believe him." Another reported on May 5, 2020, that on the

day there were community protests in the Florence area regarding detainees'

conditions, CCA was "locked down" and no one was allowed to make calls, stating
10
that "we only saw the protests later on the news."

77. A common refrain from detainees is fear for their safety while detained. One

12

detainee told me on April 28,2020, "we are afraid of the COVID-19, we know things

are bad." Another told me the same day, "we see the news in here, we know what

happens. I don't want to die in here."
15

16

17 || I state under penalty of perjury that the foregoing is true and correct

18

19
Executed on: /---> ^
20 11 May ^,2020 By: C
Christina M. Woehr
21

22

23

24

25

26

27

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EXHIBIT 2

Case 2:20-cv-00901-DJH--DMF Document 1-4 Filed 05/08/20 Page 2 of 22

1

DECLARATION OF JOSEPH GOLDENSON, MD

2 1. I am a medical physician with 33 years of experience in correctional health care. For
3 28 years, I worked for Jail Health Services of the San Francisco Department of Public
4 Health. For 22 of those years, I served as the Director and Medical Director. In that
5 role, I provided direct clinical services, managed public health activities in the San
6 Francisco County jail, including the management of HIV, tuberculosis, Hepatitis C,
7 and other infectious diseases in the facility and the planning and coordination of the
8 jail’s response to H1N1, and administered the correctional health enterprise,
9 including its budget, human resources services, and medical, mental health, dental,
10 and pharmacy services.
11 2. I served as a member of the Board of Directors of the National Commission on
12 Correctional Health Care for eight years and am past President of the California
13 chapter of the American Correctional Health Services Association. In 2014, I
14 received the Armond Start Award of Excellence from the Society of Correctional
15 Physicians, which recognizes its recipient as a representative of the highest ideals in
16 correctional medicine.
17 3. For 35 years, I held an academic appointment as an Assistant Clinical Professor at
18 the University of California, San Francisco.
19 4. I have worked extensively as a correctional health medical expert and court monitor.
20 I have served as a medical expert for the United States District Court for the Northern
21 District of California for 25 years. I am currently retained by that Court as a medical
22 expert in Plata v. Newsom, Case No. 3:01-cv-01351 (N.D. Cal.), to evaluate medical
23 care provided to inmate patients in the California Department of Correctional
24 Rehabilitation. I have also served as a medical expert and monitor at Cook County
25 Jail in Chicago; Los Angeles County Jail; at other jails in Washington state, Texas,
26 and Florida; and at prisons in Illinois, Ohio, and Wisconsin.
27 5. My curriculum vitae is attached as exhibit A.
28

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Case 2:20-cv-00901-DJH--DMF Document 1-4 Filed 05/08/20 Page 3 of 22

1

6. The Nature of COVID-19

2

7. The SARS-nCoV-2 virus (“COVID-19”), and the human infection it causes,

3

COVID-19 disease, is a global pandemic and has been termed a global health

4

emergency by the World Health Organization (“WHO”). Cases first began appearing

5

between December 1 and December 31, 2019, in Hubei Province, China.

6

8. On January 7, 2020, the virus was isolated. The virus was analyzed and discovered

7

to be a coronavirus closely related to the SARS coronavirus that caused the 2002–

8

2003 SARS epidemic.

9

9. COVID-19 is a serious disease. The overall case fatality rate has been estimated to

10

range from 0.1 to 3.5%, which is up to 35 times the fatality associated with influenza

11

infection. COVID-19 is characterized by a flu-like illness. While more than 80% of

12

cases are self-limited and generally mild, overall some 20% of cases will have more

13

severe disease requiring medical intervention and support.

14

10. The case fatality rate varies significantly depending on the presence of certain

15

demographic and health factors. The case fatality rate varies significantly with

16

advancing age, rising after age 50, and above 5% (1 in 20 cases) for those with pre-

17

existing medical conditions including cardiovascular diseases, hypertension,

18

respiratory diseases, like asthma and COPD, diabetes, and immune compromise.

19

11. Among patients who have more serious disease, some 30% will progress to Acute

20

Respiratory Distress Syndrome (ARDS), which has a 30% mortality rate overall,

21

higher in those with other health conditions. Some 13% of these patients will require

22

mechanical ventilation, which is why intensive care beds and ventilators have been

23

in insufficient supply in Italy, Iran, and in parts of China.

24

12. COVID-19 is widespread. Since it first appeared in China in late 2019, outbreaks

25

have subsequently occurred in more than 160 countries and all populated continents;

26

heavily affected countries include Italy, Spain, Iran, South Korea, and the U.S. The

27

U.S. is now the world’s most affected country. As of May 7, 2020, there have been

28

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1

3,784,085 confirmed human cases globally and 264,679 known deaths.1 It is not

2

contained, and cases are growing exponentially.

3

13. In the United States alone, the Centers for Disease Control and Prevention (“CDC”)

4

reports 1,193,813 cases and 70,802 deaths as of May 7, 2020.2 Arizona Department

5

of Health Services reports 9,945 cases and 450 deaths as of May 7, 2020.3 All these

6

numbers are likely underestimates because of limited availability of testing.

7

14. COVID-19 is now known to be fully adapted to human-to-human spread. This is

8

almost certainly a new human infection, which also means that there is no pre-

9

existing or “herd” immunity, allowing for very rapid chains of transmission once the

10

virus is circulating in communities.

11

15. The CDC estimates that the reproduction rate of the virus, the R0, is 2.4-3.8, meaning

12

that each newly infected person is estimated to infect on average 3 additional

13

persons. This is highly infectious and only the great influenza pandemic of 1918 (the

14

Spanish Flu as it was then known) is thought to have higher infectivity. This again

15

is likely a function of all human populations currently being highly susceptible. The

16

attack rate given an exposure is also high, estimated at 20–30% depending on

17

community conditions, but may be as high as 80% in some settings and populations.

18

The incubation period is thought to be 2–14 days, which is why isolation is generally

19

limited to 14 days.

20

16. The CDC has recently added to the list of possible signs and symptoms of COVID-

21

19 to include fever, cough, shortness of breath or difficulty breathing, chills, repeated

22

shaking with chills, muscle pain, headache, sore throat, or new loss of taste or smell.4

23

This means the questionnaires currently used to screen staff and prisoners need to be

24 1 https://coronavirus.jhu.edu/map.html (last accessed May 7, 2020).
25 2 https://www.cdc.gov/covid-data-tracker/index.html (last accessed May 7, 2020). 3 https://www.azdhs.gov/preparedness/epidemiology-disease-control/infectious-disease-
26 epidemiology/covid-19/dashboards/index.php (last accessed May 7, 2020). 27 4 Centers for Disease Control and Prevention, Symptoms of Coronavirus,
https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last 28 accessed May 7, 2020).

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1

updated and the numbers of suspect cases will increase.

2

17. There is currently no vaccine for COVID-19, and no cure. The only known ways to

3

prevent the spread of COVID-19 involve measures such as thorough handwashing,

4

frequent decontamination of surfaces, and maintaining six feet of physical distance

5

between individuals (“social distancing”).

6

18. The Risks of COVID-19 in Detention Facilities

7

19. COVID-19 poses a serious risk to prisoners, workers, and anyone else in detention

8

facilities. Detention facilities, including facilities like CoreCivic’s Central Arizona

9

Florence Correctional Complex (“CoreCivic”), have long been associated with high

10

transmission probabilities for infectious diseases, including tuberculosis, multi-drug

11

resistant tuberculosis, MRSA (methicillin resistant staph aureus), and viral hepatitis.

12

20. The severe epidemic of tuberculosis in prisons in Central Asia and Eastern Europe

13

was demonstrated to increase community rates of tuberculosis in multiple states in

14

that region, underscoring the risks prison outbreaks can lead to for the communities

15

surrounding a prison.

16

21. Infections that are transmitted through droplets, like influenza and COVID-19, are

17

particularly difficult to control in detention facilities, as social distancing and proper

18

decontamination of surfaces are virtually impossible.

19

22. For example, several deaths were reported in the U.S. in immigration detention

20

facilities associated with ARDS following influenza A, including a 16-year old

21

immigrant child who died of untreated ARDS in custody in May 2019.

22

23. It is estimated that during the Spanish influenza of 1918 half of the 1900 inmates at

23

San Quentin Prison in California contracted the disease during the first wave of the

24

epidemic. Sick calls increased from 150 to 700 daily. Most of the ill were kept in the

25

general prison population because the hospital ward was full.5

26
27 5 L.L. Stanley, M.D., 43 Public Health Reports (1896-1970), Influenza at San Quentin Prison, California (May 9, 1919),
28 https://www.jstor.org/stable/4575142?seq=1#metadata_info_tab_contents (last accessed

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1

24. Current recommendations for social distancing, frequent hand washing, and frequent

2

cleansing of surfaces to prevent infection and the spread of the virus are extremely

3

difficult, if not impossible, to implement in the correctional setting. A number of

4

features of these facilities can heighten risks for exposure, acquisition, transmission,

5

and clinical complications of these infectious diseases. These include

6

physical/mechanical risks such as overcrowding; population density in close

7

confinement; insufficient ventilation; shared toilet, shower, and eating

8

environments; and limits on hygiene and personal protective equipment (“PPE”)

9

such as masks and gloves in some facilities. Shared spaces and equipment (such as

10

telephones) are commonly not adequately disinfected, especially during the current

11

pandemic when more frequent cleaning and disinfecting are required. Limits on soap

12

(copays are common) and hand sanitizer, since they can contain alcohol, are also

13

risks for spread. The nationwide shortage of PPE, as well as ancillary products (such

14

as cleaning supplies and thermometer probes) further impacts the ability of

15

correctional facilities to implement necessary precautions.6

16

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

17

harm from developing severe complications or death if infected, is significantly

18

higher in jails, prisons, and detention centers than in the community.

19

26. Close, poorly ventilated living quarters and often overcrowded conditions in these

20

facilities foster the rapid transmission of infectious diseases, particularly those

21

transmitted by airborne droplets through sneezing, speaking, or coughing. In these

22

congregate settings, large numbers of people are closely confined and forced to share

23

living spaces, bathrooms, eating areas, and other enclosed spaces. Groups of persons

24

are often moved from space to space, for example, from a dormitory to a cafeteria.

25

Persons congregate and come in close contact while standing in lines for medication,

26
27 May 7, 2020). 6 Study of COVID-19 in Correctional Facilities, Harvard University and National
28 Commission on Correctional Health Care, April 9, 2020.

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1

commissary, fresh laundry, telephones, showers, restroom use or court appearances.

2

These group movements, which may cluster large numbers of people together in

3

small spaces, increase the risk of transmission. It is common for detainees in a given

4

housing unit to routinely be subjected to such group movements multiple times each

5

day. They are physically unable to practice social distancing, which the CDC has

6

identified as the “cornerstone of reducing transmission of respiratory diseases such

7

as COVID-19.”7

8

27. This forced congregation spreads infection from one area of a prison to other areas,

9

too. In addition, detention facilities often rely on detainees to perform work that

10

supports the operation of the facility, such as food service, laundry, and cleaning. To

11

perform these work assignments, they typically travel from their housing units to

12

other parts of the facility. Officers and other detention facility staff routinely have

13

direct physical contact with detainees, especially when handcuffing or removing

14

handcuffs from detainees who are entering or exiting the facility. Staff members also

15

move around within the facility, which creates opportunities for transmission both

16

among staff in different parts of the facility and transmission to and from detainees

17

in different parts of the facility. This regular circulation makes the spread of infection

18

throughout a prison all but inevitable.

19

28. While jails, prisons, and detention centers are often thought of as closed

20

environments, this is not the case. Custody, medical, and other support staff and

21

contractors enter and leave the facility throughout the day. New detainees arrive on

22

a frequent basis. Since there is no effective way to screen for newly infected or

23

asymptomatic individuals, they can unknowingly transmit COVID-19 to those

24

25 7 Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (April
26 18, 2020),
27 https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html (last accessed May 7, 2020)(hereinafter “CDC Interim
28 Guidance”).

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1

housed in the facility. Detainees and inmates are often transferred between housing

2

units, into and out of isolation, to other facilities, and to and from court. This further

3

increases the likelihood of transmission of COVID-19.

4

29. It has long been known that jails, prisons, and detention centers can be hotbeds of

5

disease transmission. Due to the frequent ingress and egress of employees at these

6

facilities, an outbreak within a jail, prison, or detention center can quickly spread to

7

surrounding communities. For example, the tuberculosis epidemic that broke out in

8

New York City in the early 1990s began in jails and was spread to the community

9

by jail employees who became infected and then returned home to their families and

10

communities.

11

30. In addition to the nature of the prison environment, prison and jail populations are

12

also at additional risk due to high rates of chronic health conditions, substance use,

13

mental health issues, and, particularly in prisons, aging and chronically ill

14

populations who may be vulnerable to death or severe illnesses after infection from

15

COVID-19 disease.

16

31. Testing kits are widely unavailable, and it can take anywhere from a day to a week

17

or more to obtain test results. Someone who is tested shortly after he or she was

18

infected may test negative. In most symptomatic individuals, the test does not

19

become positive until the onset of symptoms.8 Non-test-based screens like taking

20

people’s temperatures or asking them for subjective reports of symptoms—cannot

21

adequately screen for new, asymptomatic or pre-symptomatic infections. The time

22

between exposure to COVID-19 and the moment when symptoms start is commonly

23

around five to six days but can range from 1 – 14 days.9 According to the CDC, up

24

to 25 percent of people infected with COVID-19 will remain asymptomatic.10

25 8 Sethuraman, MD, Interpreting Diagnostic Tests for SARS-CoV-2, JAMA, May 6, 2020.
26 9 World Health Organization, Q&A on coronaviruses (COVID-19) April 17, 2020,
27 https://www.who.int/news-room/q-a-detail/q-a-coronaviruses (last accessed May 7, 2020). 10 Apoorva Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders,
28 N.Y. Times (Mar. 31, 2020), https://www.nytimes.com/2020/03/31/health/coronavirus-

-7-

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1

Similarly, infected individuals may experience only mild symptoms. These newly

2

infected, asymptomatic, and mildly symptomatic individuals can, and do, transmit

3

the virus, contributing to its rapid spread. As a result, such inadequate screening

4

presents a critical problem. The possibility of asymptomatic transmission means that

5

monitoring staff and incarcerated people for symptoms and fever is inadequate to

6

identify all who may be infected and to prevent transmission.

7

32. Social distancing is the most effective method of preventing the spread of COVID-

8

19. It must be utilized conjointly with other practices, like testing, isolation, and

9

quarantine, to achieve maximal efficacy in reducing transmission. If a facility is not

10

practicing social distancing, CDC testing protocols are not sufficient to prevent the

11

spread of the illness.

12

33. It is my understanding that CoreCivic may be quarantining individuals, with

13

confirmed and unconfirmed COVID-19 infections, together in one unit. If this is

14

CoreCivic’s protocol, it does not conform to CDC guidelines11 and it would likely

15

contribute to the overall transmission rate. This protocol can and would result in the

16

housing of individuals with differing incubation periods together and the

17

transmission of COVID-19 from an infected individual to an uninfected one, some

18

of whom will be asymptomatic. As mentioned above, individuals with an

19

asymptomatic presentation, are still able to transmit COVID-19.

20

34. As of May 7, 2020, it is my understanding that CoreCivic has 10 confirmed cases of

21

COVID-19, 8 detainees and 2 staff members. It is my understanding that CoreCivic

22

has at least 480 detainees quarantined in response to possible COVID-19 exposure.

23

Data from April 28, 2020, listed the total number of quarantined individuals at 115.

24

That is an increase of 365 detainees exposed and/or infected with COVID-19 over a

25

9-day window of time. It is my understanding that detainees have reported that there

26

is no social distancing, a general lack of sanitation, no access to hand sanitizer or

27 asymptomatic-transmission.html (last accessed May 7, 2020).
28 11 CDC Interim Guidance at 15.

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1

gloves, and that detainees have been given only one mask and no new masks have

2

been issued to detainees since the initial mask over three weeks ago. The rapid

3

increase in exposure and potential infections are a natural consequence of these

4

conditions. Without meaningful intervention conditions will likely continue to

5

deteriorate.

6

35. It is my understanding that in lieu of social distancing, CoreCivic is using contact

7

tracing as a major method of prevention and identification of possible COVID-19

8

exposure and infections. Contact tracing is essentially identification of all people that

9

a confirmed infected individual has come into contact with within a given window

10

of time. The difficulty with contact tracing in a detention facility is that there are

11

likely many asymptomatic individuals, coupled with constant staff movement in and

12

out of the facility. Without constant and widespread testing, potential sources of

13

infection would be very difficult to establish. Without constantly testing everyone to

14

detect asymptomatic individuals, contact tracing alone is not a meaningful method

15

of prevention. Contact tracing is important but it does not replace social distancing,

16

adequate PPE, and testing.

17

36. Ultimately, once confirmed cases of COVID-19 exist in a detention facility like

18

CoreCivic, the population density, lack of PPE, and inability to properly sanitize

19

areas of dense congregation will result in widespread transmission of the disease

20

inside of the facility and in the broader community through daily staff ingress and

21

egress.

22

37. While every effort should be made to reduce exposure in detention facilities through

23

internal mitigation efforts, this may be extremely difficult to achieve and sustain

24

quickly enough. Further, no mitigation effort can change the inherent nature of

25

detention facilities, which force people to live in close proximity to one another. It

26

is therefore an urgent priority in this time of national public health emergency to

27

reduce the number of persons in detention as quickly as possible. Indeed, that is the

28

only public health solution available at this time to reduce the spread of COVID-19

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1

and potentially save lives.

2

38. Given the experience in China as well as the literature on infectious diseases in jail,

3

additional outbreaks of COVID-19 among the U.S. jail and prison populations are

4

highly likely. Releasing as many inmates as possible is important to protect the

5

health of inmates, correctional facility staff, health care workers at jails and other

6

detention facilities, and the community as a whole. Indeed, according to the WHO,

7

“enhanced consideration should be given to resorting to non-custodial measures at

8

all stages of the administration of criminal justice, including at the pre-trial, trial and

9

sentencing as well as post-sentencing stages.”12

10

39. It is difficult to overstate the devastation that a COVID-19 outbreak could inflict on

11

a correctional facility such as CoreCivic. At Rikers Island jail in New York, between

12

April 1 and April 15, 2020, the number of COVID-19 positive incarcerated

13

individuals and staff members grew by 104 and 114 people, respectively, upping the

14

jail’s total numbers of confirmed cases to 288 among the incarcerated population,

15

488 among correction staff, and 78 among health care workers.13,14 The first known

16

case of COVID-19 at Rikers was confirmed on March 18,15 illustrating just how

17

quickly this disease can and will overwhelm detention facilities. Two Ohio prisons,

18

Marion Correctional Institution and Pickaway Correctional Institution, have

19

emerged as the largest-known sources of U.S. coronavirus infections, according to

20

21 12 World Health Organization, Regional Office for Europe, Preparedness, prevention and

22 control of COVID-19 in prisons and other places of detention: Interim guidance (Mar. 15, 2020), http://www.euro.who.int/__data/assets/pdf_file/0019/434026/Preparedness-

23 prevention-and-control-of-COVID-19-in-prisons.pdf (last accessed May 7, 2020).

24

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

25 (last accessed May 7, 2020).

14 Jan Ranson, Jailed on a Minor Parole Violation, He Caught the Virus and Died, N.Y. 26 Times (Apr. 10, 2020).

27 15 New York Times, As Testing Expands, Confirmed Cases of Coronavirus in N.Y.C. Near 2,000 (Mar. 18, 2020), https://www.nytimes.com/2020/03/18/nyregion/coronavirus-new-

28 york-update.html (last accessed May 7, 2020).

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Case 2:20-cv-00901-DJH--DMF Document 1-4 Filed 05/08/20 Page 12 of 22

1

data compiled by The New York Times. To date 3,808 cases have been connected

2

to the two prisons.16 Over 80% of the approximately 2,500 prisoners in Marion tested

3

positive.17 In addition, 169 staff have tested positive for COVID-19.18 Eight of the

4

ten largest-known infections sources in the U.S. are jails or prisons.

5

40. At Ohio’s Marion Correctional, close to 95% of those who tested positive were

6

asymptomatic and would otherwise not have been tested.19 This underscores the risk

7

of the spread of COVID-19 by asymptomatic individuals.

8

41. Based on these understandings, it is my opinion that the exponential infection of rate

9

for COVID-19 we already see in the community would be magnified within

10

CoreCivic. Adequate social distancing would be impossible to achieve. What’s

11

more, the infection in CoreCivic would not stay limited to the facility, but would

12

worsen infection rates in the broader community. The infection rate will increase

13

substantially before it starts to diminish without major interventions. The number at

14

risk for death is substantial. This is why leaving implementation in the hands of local

15

officials alone, who lack the expertise and resources and were incapable of

16

preventing the outbreak in the first place, is insufficient.

17

42. Conclusions

18

43. For the reasons above, it is my professional opinion that persons currently detained

19

at CoreCivic are at significantly greater risk of contracting COVID-19 than if they

20

21 16 New York Times, Coronavirus in the U.S.: Latest Map and Case Count,

22 https://www.nytimes.com/interactive/2020/us/coronavirus-uscases.html?action=click&module=Top%20Stories&pgtype=Homepage&action=click&m

23 odule=Spotlight&pgtype=Homepage#states (last accessed May 7, 2020).

24

17 Ohio Department of Rehabilitation & Correction, COVID-19 Inmate Testing Updated May 7, 2020, https://coronavirus.ohio.gov/static/DRCCOVID-19Information.pdf (last

25 accessed May 7, 2020).

18 Id. 26 19 Linda So & Grant Smith, In Four U.S. State Prisons, Nearly 3,300 Inmates Test

27 Positive for Coronavirus -- 96% Without Symptoms, New York Times (April 25, 2020), https://www.nytimes.com/reuters/2020/04/25/us/25reuters-health-coronavirus-prisons-

28 testing-insight.html?searchResultPosition=8 (last accessed May 7, 2020).

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Case 2:20-cv-00901-DJH--DMF Document 1-4 Filed 05/08/20 Page 13 of 22

1

were permitted to shelter in place in their home communities. If infected, many are

2

at increased risk of suffering severe complications and outcomes particularly given

3

the underlying health conditions of many people in detention settings as well as the

4

constrained provision of health care within facilities during the pandemic.

5

44. It is my professional opinion that conditions in CoreCivic threaten the health and

6

safety of every individual within the prison—detained persons and staff alike—and

7

in their surrounding communities.

8

45. It is my professional opinion that a necessary component of bringing CoreCivic into

9

compliance with the recommendations of the CDC to minimize the risk of COVID-

10

19 transmission within the facility and to the larger community is to substantially

11

reduce the population. Doing so will allow the facility to significantly reduce the risk

12

of infection for both incarcerated people and correctional officers, which in turn

13

protects the communities where corrections staff live.

14

46. It is my professional opinion that those who are medically vulnerable20 need to be

15

moved out of CoreCivic to the absolute maximum extent possible. In addition, the

16

overall population needs to be significantly lowered to reduce the density in the jails

17

to allow for adequate social distancing, minimize the strain on the jail’s medical care

18

system, ensure adequate space is available for necessary quarantining.

19

20

21 20 Persons held at CoreCivic over the age of 50, as well as all current and future persons

22 held at CoreCivic of any age who experience (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions

23 associated with impaired lung function; (b) heart disease, such as congenital heart disease,

24

congestive heart failure and coronary artery disease, or other chronic conditions associated with impaired heart function; (c) chronic liver or kidney disease (including hepatitis and

25 dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension;

(g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone 26 marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood

27 disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; and/or (l) a current or recent (last two weeks)

28 pregnancy.

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Case 2:20-cv-00901-DJH--DMF Document 1-4 Filed 05/08/20 Page 14 of 22

1

47. It is my public health recommendation that a public health expert be appointed to

2

oversee operations related to preventing further spread of COVID-19 in CoreCivic,

3

which may include authorizing further staggered release of detainees until it is

4

possible to maintain consistent social distancing and appropriate hygiene within the

5

facility.

6 7 I state under penalty of perjury that the foregoing is true and correct

8

9 Executed on:
10 May 7, 2020
11

By: __________________________

12

JOSEPH GOLDENSON, MD

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

References

2

1. Dolan K, Wirtz A, Maazen B., et al. Global Burdern of HIV, viral hepatitis, and

3

tuberculosis in prisoners and detainees. The Lancet, July 14, 2016.

4

2. Stuckler D, Basu S, McKee M, King I. Mass incarceration can explain population

5

increases in TB and multi-drug resistant TB in European and Central Asian

6

countries. Proceedings of the National Academy of Science USA, 2008. 105:13280-

7

85.

8

3. Beyrer C, Kamarulzaman A, McKee M; Lancet HIV in Prisoners Group. Prisoners,

9

prisons, and HIV: time for reform. The Lancet. 2016 Jul 14. pii: S0140-

10

6736(16)30829-7. doi: 10.1016/S0140-6736(16)30829-7. [Epub ahead of print] No

11

abstract available. PMID: 27427447.

12

4. Marusshak LM, Sabol W, Potter R, Reid L, Cramer E. Pandemic Influenza and Jail

13

Facilities and Populations. American Journal of Public Health. 2009 October;

14

99(Suppl 2): S339–S344.

15

5. Rubenstein LS, Amon JJ, McLemore M, Eba P, Dolan K, Lines R, Beyrer C. HIV,

16

prisoners, and human rights. The Lancet. 2016 Jul 14. pii: S0140-6736(16)30663-8.

17

doi: 10.1016/S0140-6736(16)30663-8

18

6. Wang J, Ng, CY, Brook R. Response to COVID-19 in Taiwan: Big Data Analytics,

19

New Technology, and Proactive Testing. March 3, 2020. JAMA. Published online

20

March 3, 2020. doi:10.1001/jama.2020.3151.

21

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23

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25

26

27

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Case 2:20-cv-00901-DJH--DMF Document 1-4 Filed 05/08/20 Page 16 of 22
EXHIBIT A

Case 2:20-cv-00901-DJH--DMF Document 1-4 Filed 05/08/20 Page 17 of 22
CURRICULUM VITAE
JOE GOLDENSON, MD 1406 CYPRESS STREET BERKELEY, CA 94703
(510) 557-1086 jgoldenson@gmail.com

EDUCATION

Post Graduate Training

February 1992
1979-1980 1976-1979

University of California, San Francisco, CPAT/APEX Mini-Residency in HIV Care Robert Wood Johnson Fellowship in Family Practice University of California, San Francisco Residency in Family Practice

Medical School 1973-1975
1971-1973

Mt. Sinai School of Medicine, New York M.D. Degree University of Michigan, Ann Arbor

Undergraduate Education

1967-1971

University of Michigan, Ann Arbor B.A. in Psychology

PROFESSIONAL EXPERIENCE

Practice Experience 1993-2015 1991-1993 1990-1991 1987-1990

Director/Medical Director Jail Health Services San Francisco Department of Public Health Medical Director Jail Health Services San Francisco Department of Public Health Chief of Medical Services, Hall of Justice Jail Health Services San Francisco Department of Public Health Staff Physician Jail Health Services San Francisco Department of Public Health

Case 2:20-cv-00901-DJH--DMF Document 1-4 Filed 05/08/20 Page 18 of 22

1980-1987 1975-1976

Sabbatical Staff Physician United Farm Workers Health Center, Salinas, CA

Consulting 6/16-8/19 4/02-Present
6/14-9/14 6/10-12/13
6/08-6/12 5/08-9/09 1/08
9/07-1/10
8/06-8/12 6/05 11/02-4/03 4/02-8/06
1/02-3/02
8/01-4/02 7/01-4/02 1/96-1/14

Consultant to Los Angeles Department of Health Services re: provision of health care services in the LA County Jail Federal Court Medical Expert, Plata v. Newsome, Class Action Lawsuit re: prisoner medical care in California State Prison System Medical expert for the Illinois Department of Corrections and the ACLU of Illinois Federal Court appointed Medical Monitor, U.S.A. v. Cook County, et al., United States District Court for the Northern District of Illinois, No. 10 C 2946, re: medical care in the Cook County Jail Member, Plata v. Schwarzenegger Advisory Board to the Honorable Thelton E. Henderson, U.S. District Court Judge Medical Expert for ACLU re Maricopa County Jail, Phoenix, AZ Member of the National Commission on Correctional Health Care’s Technical Assistance Review Team for the Miami Dade Department of Corrections Federal Court appointed Medical Expert, Herrera v. Pierce County, et al., re: medical care at the Pierce County Jail, Tacoma, WA State Court Appointed Medical Expert, Farrell v. Allen, Superior Court of California Consent Decree re medical care in the California Department of Juvenile Justice Member of Technical Assistance Review Team for the Dallas County Jail Medical Expert for ACLU re Jefferson County Jail, Port Townsend, Washington Federal Court Medical Expert, Austin, et. al vs Wilkinson, et al, Class Action Law Suit re: Prisoner medical care at the Ohio State Penitentiary Supermax Facility Consultant to the Francis J. Curry, National Tuberculosis Center re: Tuberculosis Control Plan for the Jail Setting: A Template (Jail Template), Medical Expert for ACLU re Wisconsin Supermax Correctional Facility, Boscobel, WI Medical Expert for Ohio Attorney General’s Office re Ohio State Prison, Youngstown, OH Member and Surveyor, California Medical Association

Case 2:20-cv-00901-DJH--DMF Document 1-4 Filed 05/08/20 Page 19 of 22

5/95-6/08
3/98-12/98 2/98 6/94

Corrections and Detentions Health Care Committee Medical Expert for the Office of the Special Master, Madrid vs Alameida, Federal Class Action Law Suit re: Prisoner medical care at the Pelican Bay State Prison Supermax Facility Member, Los Angeles County Department of Public Health Jail Health Services Task Force Medical Expert, Department of Justice Investigation of Clark County Detention Center, Las Vegas, Nevada Surveyor, National Commission on Correctional Health Care, INS Detention Center, El Centro, CA

Work Related Committees

1/14 to present 10/11 to 5/19

Member, Editorial Advisory Board, Correctional Health Care Report Member, Board of Directors of the National Commission on

5/07-10/12

Correctional Health Care Liaison to the CDC Advisory Council for the Elimination of

Tuberculosis (ACET) from the National Commission on

12/04-3/06 6/03-8/03

Correctional Health Care Member of the CDC Advisory Council for the Elimination of Tuberculosis (ACET) Ad Hoc Working Group on the Prevention and Control of Tuberculosis in Correctional and Detention Facilities: Recommendations from CDC (MMWR 2006; 55(No. RR-9)) Member of the Advisory Panel for the Francis J. Curry National

3/02-1/03 6/01-1/15

Tuberculosis Center and National Commission on Correctional Health Care, 2003: Corrections Tuberculosis Training and Education Resource Guide Member of the Advisory Committee to Develop the Tuberculosis Control Plan for the Jail Setting: A Template (Jail Template), Francis J. Curry, National Tuberculosis Center Director’s Cabinet San Francisco Department of Public Health

3/01

Consultant to Centers for Disease Control on the Prevention and

9/97-6/02

Control of Infections with Hepatitis Viruses in Correctional Settings (MMWR 2003; 52(No. RR-1)) Member, Executive Committee of Medical Practice Group, San Francisco Department of Public Health

3/97-3/02
3/96-6/12 2/00-12/00

American Correctional Health Services Association Liaison with American Public Health Association Chairperson, Bay Area Corrections Committee (on tuberculosis) Medical Providers’ Subcommittee of the Office-based Opiate Treatment Program, San Francisco Department of public Health

Case 2:20-cv-00901-DJH--DMF Document 1-4 Filed 05/08/20 Page 20 of 22

12/98-12/00 7/94-7/96 6/93-6/95 2/92-2/96 3/90-7/97 1/93-7/93

Associate Chairperson, Corrections Sub-Committee, California Tuberculosis Elimination Advisory Committee Advisory Committee for the Control And Elimination of Tuberculosis, San Francisco Department of Public Health Managed Care Clinical Implementation Committee, San Francisco Department of Public Health Tuberculosis Control Task Force, San Francisco Department of Public Health San Francisco General Hospital Blood Borne Pathogen Committee Medical Staff Bylaws Committee, San Francisco Department of Public Health

ACADEMIC APPOINTMENT

1980-2015

Assistant Clinical Professor

University of California, San Francisco

PROFESSIONAL AFFILIATIONS Society of Correctional Physicians, Member of President’s Council, Past-Treasurer and Secretary American Correctional Health Services Association, Past-President of California Chapter American Public Health Association, Jails and Prison’s Subcommittee Academy of Correctional Health Professionals

PROFESSIONAL PRESENTATIONS Caring for the Inmate Health Population: A Public Health Imperative, Correctional Health Care Leadership Institutes, July 2015 Correctional Medicine and Community Health, Society of Correctional Physicians Annual Meeting, October, 2014 Identifying Pulmonary TB in Jails: A Roundtable Discussion, National Commission on Correctional Health Care Annual Conference, October 31, 2006 A Community Health Approach to Correctional Health Care, Society of Correctional Physicians, October 29, 2006 Prisoners the Unwanted and Underserved Population, Why Public Health Should Be in Jail, San Francisco General Hospital Medical Center, Medical Grand Rounds, 10/12/04
TB in Jail: A Contact Investigation Course, Legal and Administrative Responsibilities, Francis J. Curry National Tuberculosis Center, 10/7/04
Public Health and Correctional Medicine, American Public Health Association Annual Conference, 11/19/2003
Hepatitis in Corrections, CA/NV Chapter, American Correctional Health Services Association Annual Meeting, 1/17/02

Case 2:20-cv-00901-DJH--DMF Document 1-4 Filed 05/08/20 Page 21 of 22
Correctional Medicine, San Francisco General Hospital Medical Center, Medical Grand Rounds, 12/16/02 SuperMax Prisons, American Public Health Association Annual Conference, 11/8/01 Chronic Care Programs in Corrections, CA/NV Chapter, American Correctional Health Services Association Annual Meeting, 9/19/02 Tuberculosis in Corrections - Continuity of Care, California Tuberculosis Controllers Association Spring Conference, 5/12/98 HIV Care Incarcerated in Incarcerated Populations, UCSF Clinical Care of the AIDS Patient Conference, 12/5/97 Tuberculosis in Correctional Facilities, Pennsylvania AIDS Education and Training Center, 3/25/93 Tuberculosis Control in Jails, AIDS and Prison Conference, 10/15/93 The Interface of Public Health and Correctional Health Care, American Public Health Association Annual Meeting, 10/26/93 HIV Education for Correctional Health Care Workers, American Public Health Association Annual Meeting, 10/26/93
PUBLICATIONS Structure and Administration of a Jail Medical Program. Correctional Health Care: Practice, Administration, and Law. Kingston, NJ: Civic Research Institute. 2017. Structure and Administration of a Jail Medical Program – Part II. Correctional Health Care Report. Volume 16, No. 2, January-February 2015. Structure and Administration of a Jail Medical Program – Part I. Correctional Health Care Report. Volume 16, No. 1, November-December 2014. Pain Behind Bars: The Epidemiology of Pain in Older Jail Inmates in a County Jail. Journal of Palliative Medicine. 09/2014; DOI: 10.1089/jpm.2014.0160 Older jail inmates and community acute care use. Am J Public Health. 2014 Sep; 104(9):1728-33. Correctional Health Care Must be Recognized as an Integral Part of the Public Health Sector, Sexually Transmitted Diseases, February Supplement 2009, Vol. 36, No. 2, p.S3–S4 Use of sentinel surveillance and geographic information systems to monitor trends in HIV prevalence, incidence, and related risk behavior among women undergoing syphilis screening in a jail setting. Journal of Urban Health 10/2008; 86(1):79-92. Discharge Planning and Continuity of Health Care: Findings From the San Francisco County Jail, American Journal of Public Health, 98:2182–2184, 2008 Public Health Behind Bars, Deputy Editor, Springer, 2007 Diabetes Care in the San Francisco County Jail, American Journal of Public Health, 96:1571-73, 2006 Clinical Practice in Correctional Medicine, 2nd Edition, Associate Editor, Mosby, 2006. Tuberculosis in the Correctional Facility, Mark Lobato, MD and Joe Goldenson, MD,

Case 2:20-cv-00901-DJH--DMF Document 1-4 Filed 05/08/20 Page 22 of 22
Clinical Practice in Correctional Medicine, 2nd Edition, Mosby, 2006. Incidence of TB in inmates with latent TB infection: 5-year follow-up. American Journal of Preventive Medicine. 11/2005; 29(4):295-301. Cancer Screening Among Jail Inmates: Frequency, Knowledge, and Willingness Am J Public Health. 2005 October; 95(10): 1781–1787 Improving tuberculosis therapy completion after jail: translation of research to practice. Health Education Research. 05/2005; 20(2):163-74. Incidence of TB in Inmates with Latent TB Infection, 5-Year Follow-up, American Journal of Preventive Medicine, 29(4), 2005 Prevention and Control of Infections with Hepatitis Viruses in Correctional Settings, Morbidity and Mortality Reports, (External Consultant to Centers for Disease Control),Vol. 52/No. RR-1 January 24, 2003 Randomized Controlled Trial of Interventions to Improve Follow-up for Latent Tuberculosis Infection After Release from Jail, Archives of Internal Medicine, 162:1044-1050, 2002 Jail Inmates and HIV care: provision of antiretroviral therapy and Pneumocystis carinii pneumonia prophylaxis, International Journal of STD & AIDS; 12: 380-385, 2001 Tuberculosis Prevalence in an urban jail: 1994 and 1998, International Journal of Tuberculosis Lung Disease, 5(5):400-404, 2001 Screening for Tuberculosis in Jail and Clinic Follow-up after Release, American Journal of Public Health, 88(2):223-226, 1998 A Clinical Trial of a Financial Incentive to Go to the Tuberculosis Clinic for Isoniazid after Release from Jail, International Journal of Tuberculosis Lung Disease, 2(6):506512,1998
AWARDS Armond Start Award of Excellence, Society of Correctional Physicians, 2014 Award of Honor, San Francisco Board of Supervisors, 2014 Award of Honor, San Francisco Health Commission, 2014 Certificate of Appreciation, San Francisco Public Defender’s Office, 2014 Certificate for Excellence in Teaching, California Department of Health Services, 2002 Employee Recognition Award, San Francisco Health Commission, July 2000 Public Managerial Excellence Award, Certificate of Merit, San Francisco, 1997
LICENSURE AND CERTIFICATION Medical Board of California, Certificate #A32488 Fellow, Society of Correctional Physicians Board Certified in Family Practice, 1979-1986 (Currently Board Eligible)

Case 2:20-cv-00901-DJH--DMF Document 1-5 Filed 05/08/20 Page 1 of 5
EXHIBIT 3

Case 2:20-cv-00901-DJH--DMF Document 1-5 Filed 05/08/20 Page 2 of 5

1

DECLARATION OF MARIA GUADALUPE LUCERO-GONZALEZ

2

3

I, Maria Guadalupe Lucero-Gonzalez, do hereby declare, under penalty of perjury

4 under the laws of the United States of America, that the following is true and correct to

5 the best of my knowledge and belief:

6

1. I am currently detained at Central Arizona Florence Correctional Complex

7 (“CCA”). I have been detained at CCA since November 2019.

8

2. In July 2019, I was convicted of illegal reentry and sentenced to time served

9 and three years of supervised release, in case No. 2:19-cr-00426-JGZ-BGM-1. In January

10 2020, the United States petitioned to revoke my supervised release, alleging that I had

11 violated the conditions of this release. Based on these allegations, I also am charged with

12 illegal reentry in case No. 4:19-cr-03359-JGZ-BGM-1.

13

3. On April 20, 2020, I asked the U.S. District Court for the District of Arizona

14 to reopen my detention hearing. This request was based on my serious medical conditions

15 and the risks posed by the COVID-19 pandemic. On April 28, 2020, the Court denied this

16 motion.

17

4. I am 50 years old. I am the mother of three children: a 30-year-old

18 daughter, a 28-year-old daughter, and a 25-year-old-son.

19

5. I have been diagnosed with several serious medical conditions, including

20 asthma, high blood pressure, diabetes, and kidney cancer. All these conditions require 21 medical care. For my asthma, I frequently use an inhaler. For my kidney cancer, I was 22 receiving treatment before I was detained at CCA. My last treatment for my kidney 23 cancer was in July 2019. At this treatment, the doctor told me I needed surgery to remove 24 either my kidney or the tumor. The doctor asked me to return for a follow-up 25 appointment in three months. Before this follow-up appointment, I was arrested and then 26 detained at CCA. Staff at CCA have refused my requests to arrange this follow-up 27 appointment and have told me that I am not allowed to leave for treatment, due to the 28 COVID-19 pandemic.

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Case 2:20-cv-00901-DJH--DMF Document 1-5 Filed 05/08/20 Page 3 of 5

1

6. I also have requested medicine to help with the pain from my medical

2 conditions. Previously, medical staff at CCA provided me with this medicine, but for the

3 last month they have suspended my medicine, stating that it will ruin my kidneys. They

4 give me Tylenol or Ibuprofen instead, but this does not help with my pain. I need to see

5 my urologist to determine which medicine I can take without harming my kidneys. I have

6 been waiting over two months for an appointment with my urologist.

7

7. I am unable to work at CCA because of my serious health conditions. Due

8 to these conditions, I do not have the energy to work, and I am in too much pain.

9

8. I live in a pod with about 40 people. The 40 people in my pod share five

10 showers and three telephones. When we are not in our cells, we are able to interact and

11 typically are in close contact with each other. We are not physically separated.

12

9. At mealtimes, the people in my pod wait in a line to receive a tray with

13 food. The people in this line stand closer than six feet apart. During mealtimes, most

14 people congregate and eat at ten tables, each with four chairs. These tables are full during

15 mealtimes. The people in my pod also stand closer than six feet apart when waiting in

16 lines for medical visits at CCA.

17

10. I also share a cell with one other woman. Our beds are placed about arms’

18 length apart. There is one toilet and sink in my cell that I share with the woman in my

19 cell.

20

11. I saw information on television about COVID-19, but the staff here have not

21 provided any information about COVID-19.

22

12. About six people from my pod are responsible for cleaning the pod. They

23 do not wear any personal protective equipment, like masks or gloves. They clean the

24 showers and sweep and mop the pod. Although they clean the showers twice a day, they

25 clean the rest of the pod only once a day, around 6 p.m.

26

13. The people who clean my pod only occasionally clean the

27 telephones. Because the telephones are not cleaned after they are used and because I am

28 afraid of contracting COVID-19, I clean the telephone myself before using it. People in

-2-

Case 2:20-cv-00901-DJH--DMF Document 1-5 Filed 05/08/20 Page 4 of 5

1 my pod do so as well. To clean the telephones, we wipe them down with our shirts or

2 with feminine pads that we wet down with water.

3

14. My cellmate and I are responsible for cleaning our cell. Twice a day, we

4 receive cleaning supplies to clean the cell, including a bottle with pink liquid that is not

5 antibacterial. We are allowed to use these supplies only briefly, and they are immediately

6 taken away after the cell is cleaned.

7

15. Once a week, all the people in my pod receive a bag with bathroom

8 supplies, including a small amount of soap and shampoo. We have not received any hand

9 sanitizer or any antibacterial cleaning products. Because I do not have access to other

10 soap or cleaning materials, I use my shampoo to clean my dishes, in addition to using it

11 for personal hygiene. If someone runs out of soap or shampoo, they either need to buy

12 more supplies from the commissary or wait until the next week to get more. We are not

13 given more soap if we need it.

14

16. We have received this same bag of bathroom supplies since I have been

15 detained at CCA. We have not received different or additional cleaning products since the

16 COVID-19 pandemic.

17

17. Around April 15, 2020, everyone in my pod received a thin paper

18 mask. We were told that no one needs to wear a mask, so no one wore a mask for the last

19 few weeks. On April 30, 2020, correctional officers began requiring us to wear masks

20 when we go outside our pod. We are not required to wear masks inside our pod or cells,

21 and no one in my pod is wearing a mask in the pod.

22

18. Correctional officers started wearing masks on April 28, 2020; they did not

23 wear masks before this date. Many correctional officers still are not wearing gloves.

24

19. At CCA I have been exposed to at least two people who showed symptoms

25 of COVID-19. One woman was in my pod for ten days before she was placed in

26 quarantine. Another woman who also showed symptoms was in my pod for about ten

27 days. I am very scared because I often sat at the same table as these two women and was

28 in close contact with them for long periods of time. Some correctional officers also have

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Case 2:20-cv-00901-DJH--DMF Document 1-5 Filed 05/08/20 Page 5 of 5

1 shown symptoms of COVID-19, but they do not consistently wear masks or gloves.

2

20. Despite women showing symptoms of COVID-19, CCA staff have not

3 tested people in my pod for COVID-19. CCA staff also have not taken the temperatures

4 of the people in my pod, except during our periodic medical checks.

5

21. I am concerned for my health, well-being, and ability to survive under these

6 conditions at CCA. Based on these concerns, I filed with CCA an emergency grievance

7 on May 1, 2020, asking for improved conditions of confinement based on the risks posed

8 by COVID-19. I still have not received a response to this grievance.

9

22. I am worried that by filing a grievance I will be retaliated against. The

10 correctional officers are always listening to our conversations and telephone calls.

11

23. If I was released from CCA during the pendency of my criminal

12 proceedings, I would be able to live with my family in the United States. I would be able

13 to self-isolate in this location for at least 14 days.

14

24. I am afraid of contracting COVID-19 at CCA and of continuing to live and

15 interact with people who show symptoms of COVID-19. I recently asked to see a doctor

16 because I have developed a fever and a cough. I am in delicate health and am trying to

17 survive in these difficult conditions.

18

19

I, Matthew R. Koerner, certify that I reviewed the information contained in this

20 declaration with Maria Guadalupe Lucero-Gonzalez by telephone on May 4, 2020, and

21 that she certified that the information contained in this declaration was true and correct to

22 the best of her knowledge.

23

Executed this 4th day of May, 2020.

24

25

/s/ Matthew R. Koerner

26

27

28

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Case 2:20-cv-00901-DJH--DMF Document 1-6 Filed 05/08/20 Page 1 of 5
EXHIBIT 4

Case 2:20-cv-00901-DJH--DMF Document 1-6 Filed 05/08/20 Page 2 of 5

1

DECLARATION OF CLAUDIA ROMERO-LORENZO

2

3

I, Claudia Romero-Lorenzo, do hereby declare, under penalty of perjury under the

4 laws of the United States of America, that the following is true and correct to the best of

5 my knowledge and belief:

6

1. I am currently detained at Central Arizona Florence Correctional Complex

7 (“CCA”). As of May 2, 2020, I have been detained at CCA for five months.

8

2. My case number is 4:20-cr-00171-1. I am charged with illegal reentry and

9 am awaiting sentencing.

10

3. I am 39 years old. I am the mother of three children: a 22-year-old son, a

11 19-year-old daughter, and a 9-year-old son.

12

4. I have been diagnosed with several serious health conditions, including a

13 type of leukemia or cancer of the blood. Before my arrest, I had been receiving therapy

14 treatments for this condition. I would receive four intravenous steroid treatments

15 throughout a single day. Then, three weeks after this treatment, I would return for a

16 checkup. I also was prescribed and would take medicine between these treatments. My

17 last treatment for this medical condition was over one year ago, in April 2019.

18

5. I have asked CCA to continue my therapy treatments, on at least two

19 separate occasions. Medical staff at CCA tested my blood, told me everything was fine,

20 and recommended that I go on walks and drink water instead.

21

6. I also suffer from anxiety and depression. I have asked for medical

22 treatment, but I have received only Tylenol, which does not help.

23

7. I live in a pod with about 40 people. We share four showers and four

24 telephones. When we are not in our cells, the people in my pod are able to interact and

25 we often are in close contact with each other. We are not physically separated.

26

8. I also share a cell with another woman. Our beds are placed about one

27 meter (or about 3 feet) apart. From my bed, I can touch my cellmate’s bed. There is one

28 toilet and sink in my cell that I share with the woman in my cell.

-1-

Case 2:20-cv-00901-DJH--DMF Document 1-6 Filed 05/08/20 Page 3 of 5

1

9. At CCA I work in the sewing workshop with four other people. We are not

2 physically separated, and we work within a close distance of each other. When one

3 worker sews something, the other worker cuts it at the same time. We also share tools in

4 the workshop that are not cleaned or disinfected.

5

10. Once a week, every person in my pod receives a hygiene bag containing

6 toothpaste, a toothbrush, a razor, shampoo, and soap. This is the same as what we

7 received before COVID-19. We receive only a small amount of soap and shampoo. We

8 do not receive either hand sanitizer or cleaning supplies to clean our pods, cells, cups, or

9 dishes. Because we do not receive these cleaning supplies, I often use my own soap or

10 shampoo to clean things like cups and dishes. Because I use my soap and shampoo for

11 both personal hygiene and cleaning, I sometimes run out of soap or shampoo. If I need

12 more soap or shampoo, I am required to purchase these items from CCA’s commissary or

13 to wait until the next week’s hygiene bag.

14

11. On April 30, 2020, the people in my pod received thin paper masks. We

15 are required to wear these masks when we go outside of our pods, but we are not required

16 to wear the masks inside our cells or pods. CCA staff also began wearing masks last

17 week.

18

12. Before last week, the people in my pod had not received any masks. The

19 staff at CCA also did not wear masks or gloves until last week. CCA staff had worn

20 gloves only when searching someone’s cell.

21

13. A group of people from my pod clean the pod. When they clean, I have not

22 seen them wear masks or gloves. They clean the pod once per day, between 8:00 a.m.

23 and 10:00 a.m. I have not seen anyone clean the four telephones in the pod. Because I

24 am afraid of contracting COVID-19, I use my own shirt to clean the telephone before

25 placing a call.

26

14. Neither I nor the people in my pod have been tested for COVID-19. The

27 staff at CCA also are not taking the temperatures of the people in the pod, except during

28 our periodic medical check-ups.

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Case 2:20-cv-00901-DJH--DMF Document 1-6 Filed 05/08/20 Page 4 of 5

1

15. I know of at least two women who showed symptoms of COVID-19. One

2 woman in my pod was placed in quarantine because she had a fever. She was removed

3 from quarantine and returned to my pod, even though she said she still felt sick. We were

4 in the same pod for about one week, and I came into close contact with her on several

5 occasions. I remember sitting at the same table as her and listening to her tell a story

6 about being in quarantine. Another woman, who also showed symptoms of COVID-19,

7 was transported past my sewing workshop. CCA staff placed us in lockdown until she

8 passed through the hallway and told the people in my workshop that the woman had

9 some kind of infection or contagion. I do not know what happened to these two women.

10

16. There is no social distancing in my pod. People in the pod—including both

11 detainees and CCA staff—frequently interact with each other and are within six feet of

12 each other.

13

17. Concerned for my health, safety, and ability to survive under these

14 conditions, I attempted to file a grievance on April 29, 2020. I went with several other

15 people from my pod and asked a correctional officer for a grievance form. This officer

16 denied that anyone at CCA has tested positive for COVID-19 and told us that everything

17 at CCA is just fine. The officer also said that the stories about positive tests at CCA are

18 merely rumors relating to some positive tests at the other jails and prisons in Florence,

19 Arizona. I again tried to file a grievance and eventually found a grievance form. I filed a

20 grievance on May 1, 2020, asking for improved conditions of confinement due to

21 COVID-19. I still have not received a response.

22

18. I am afraid to file a grievance because CCA staff might retaliate against me.

23 Staff at CCA have acted badly when people complain or file grievances. I previously

24 filed a grievance for another medical issue, and the doctor summoned me and then

25 scolded me for filing the grievance. The doctor said that I filed the grievance only

26 because my lawyer put me up to it. Another woman in my pod also filed a grievance

27 asking for certain medical care. CCA staff told her that the only reason we file grievances

28 is to get attention. The correctional officers and medical staff have been very difficult

-3-

Case 2:20-cv-00901-DJH--DMF Document 1-6 Filed 05/08/20 Page 5 of 5

1 when a grievance is filed. Based on these incidents, I never want to file another grievance

2 at this facility.

3

19. I have a family whom I support and care for, including my young son. I

4 lived in Philadelphia, Pennsylvania, for 10 years. In Philadelphia, I have a close

5 community, including my siblings and my church. If I was released from CCA during the

6 pendency of my criminal proceeding, I would be able to live with my family in

7 Philadelphia. I would be able to self-isolate in this location for at least 14 days.

8

20. My health is not good, and I am afraid of contracting COVID-19.

9

10

I, Casey Arellano, certify that I reviewed the information contained in this

11 declaration with Claudia Romero-Lorenzo by telephone on May 4, 2020, and that she

12 certified that the information contained in this declaration was true and correct to the best

13 of her knowledge.

14

Executed this 4th day of May, 2020.

15

16

/s/ Casey Arellano

17

18

19

20

21

22

23

24

25

26

27

28

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Case 2:20-cv-00901-DJH--DMF Document 1-7 Filed 05/08/20 Page 1 of 5
EXHIBIT 5

Case 2:20-cv-00901-DJH--DMF Document 1-7 Filed 05/08/20 Page 2 of 5

1

DECLARATION OF TRACY ANN PEUPLIE

2

3

I, Tracy Ann Peuplie, do hereby declare, under penalty of perjury under the laws of

4 the United States of America, that the following is true and correct to the best of my

5 knowledge and belief:

6

1. I am currently detained at Central Arizona Florence Correctional Complex

7 (“CCA”). I have been detained at CCA since December 28, 2019.

8

2. My case number is 4:20-cr-00299-CKJ-DTF. I am charged with several

9 drug offenses and am awaiting trial in this case.

10

3. I am 49 years old. I have several serious medical conditions, including

11 high blood pressure, asthma, anxiety, substance-abuse disorder, and spinal stenosis. I

12 also was transported to the hospital recently for heavy menstrual bleeding. My physical

13 and mental-health conditions are serious, and I am afraid of contracting COVID-19 due

14 to these serious medical conditions.

15

4. I have asked CCA staff for medicine to help treat the pain from my spinal

16 stenosis, a condition where the spine puts pressure on nerves in the lower back and neck.

17 I still have not received any medication. CCA staff have refused to give me medicine for

18 this condition and my pain, stating that I need to go to the hospital but that I cannot do so

19 because of COVID-19.

20

5. I live in a pod with about 80 people. These 80 people share six showers

21 and four telephones. The people in my pod are responsible for cleaning the pod,

22 including the showers and floors. We are given one bottle of pink liquid to clean the

23 entire pod and all the cells. This cleaning solution runs out every day before the pod and

24 all the cells are cleaned. When we clean, we are not given personal protective equipment,

25 like gloves. The showers are cleaned twice a day, and the pods are cleaned once or

26 maybe twice a day. We do not have access to disinfecting chemicals, cleaning supplies,

27 or wipes.

28

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Case 2:20-cv-00901-DJH--DMF Document 1-7 Filed 05/08/20 Page 3 of 5

1

6. In the pod, I live in a cell with ten people. We sleep on six bunk beds that

2 are pushed against the same wall. The bunks are only about two feet apart from each

3 other. The ten people in my cell share a single toilet and sink. We are responsible for

4 cleaning our cell and are given only one bottle of chemicals to do so.

5

7. There is no social distancing in our pod or cells. When we are allowed out

6 of our cells, people wait in lines, standing closer than six feet apart, to use the four

7 telephones that are available. There are always lines to use the telephones. Also, during

8 mealtimes, everyone in the pod waits in line for food or the microwaves. Everyone

9 stands in line closer than six feet apart and then sits to eat at about 18 tables, each of

10 which has four chairs. The tables are always full of people during mealtime because

11 there are not enough chairs for everyone in the pod.

12

8. Once a week, the people in my pod receive a hygiene bag that includes

13 soap, shampoo, and rolls of toilet paper. We have received the same hygiene bag since I

14 have been detained at CCA.

15

9. Several weeks ago, we received thin paper masks. These masks are not

16 N95 masks. After receiving the masks, CCA staff told us that we were not required to

17 wear the masks, so no one was wearing a mask. Beginning on April 30, 2020, we were

18 told that we are required to wear the masks when we go outside our pod. We are not

19 required to wear the masks inside the pod or our cells.

20

10. Although we are required to wear masks now, we did not receive new

21 masks until recently. My original mask was broken, so I requested a new one on April

22 30, 2020. CCA staff refused to provide me with a mask and would not let me leave my

23 pod for a legal call until I found another mask. I was required to borrow another person’s

24 mask in order to leave my pod and speak with my attorney. I did not receive a new mask

25 until later that night. Other people in my pod also did not have masks and have not been

26 provided with them. Last week, the people who work in the laundry room did not have

27 masks, so they were not allowed to leave the pod to do laundry. As a result, the people in

28 my pod did not have clean clothes, towels, or bedsheets.

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Case 2:20-cv-00901-DJH--DMF Document 1-7 Filed 05/08/20 Page 4 of 5

1

11. Until recently, CCA staff were not wearing masks. On April 30, 2020,

2 CCA staff told us they would begin wearing masks, but they reassured us that no one at

3 CCA has tested positive for COVID-19. I have seen a few signs posted about COVID-

4 19, but CCA staff otherwise have not told us anything about COVID-19 or the measures

5 at CCA in response to COVID-19.

6

12. CCA staff have set-up a room that is referred to as the “quarantine room.”

7 When new detainees come to CCA, they all stay in the quarantine room for 14 days.

8 After these 14 days, the detainees are released from the quarantine room. They are

9 moved into the pod with 80 other people and into a cell with ten people.

10

13. CCA staff have not tested people in my pod for COVID-19. CCA staff also

11 have not taken the temperatures of the people in my pod, except during our periodic

12 medical checks.

13

14. I am afraid of contracting COVID-19 and am concerned for my health and

14 well-being at CCA. Based on these concerns, I filed an emergency grievance with CCA

15 around April 22, 2020. I still have not received a response to this emergency grievance.

16 Having received no response, I filed a second emergency grievance on April 30, 2020. I

17 handed my grievance form to a member of the CCA staff and asked about the status of my

18 first emergency grievance. The staff member replied that they receive about 400

19 grievances a day and that “we’ll get to it whenever we get to it.” I still have not received a

20 response to either my first or my second emergency grievance.

21

15. Grievance forms are not always available at CCA. On several recent

22 occasions, I attempted to fill out a grievance form, but no grievance form was available.

23

16. If I was released from CCA during the pendency of my criminal proceeding,

24 I would be able to live and stay with my family in Oklahoma. I would be able to self-

25 isolate in this location for at least 14 days.

26

17. I am scared that if conditions do not improve at CCA or if I am not released,

27 then something horrible will happen to me. I am afraid of contracting COVID-19.

28

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Case 2:20-cv-00901-DJH--DMF Document 1-7 Filed 05/08/20 Page 5 of 5

1

I, Matthew R. Koerner, certify that I reviewed the information contained in this

2 declaration with Tracy A. Peuplie by telephone on May 4, 2020, and that she certified that

3 the information contained in this declaration was true and correct to the best of her

4 knowledge.

5

Executed this 4th day of May, 2020.

6

7

/s/ Matthew R. Koerner

8

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Case 2:20-cv-00901-DJH--DMF Document 1-8 Filed 05/08/20 Page 1 of 3
EXHIBIT 6

Case 2:20-cv-00901-DJH--DMF Document 1-8 Filed 05/08/20 Page 2 of 3

1

DECLARATION OF JAMES TYLER CIECIERSKI

2

3

I, James Tyler Ciecierski, do hereby declare, under penalty of perjury under the

4 laws of the United States of America, that the following is true and correct to the best of

5 my knowledge and belief:

6

1. I am currently detained at Central Arizona Florence Correctional Complex

7 (“CCA”). I have been detained at CCA since the end of February 2020. My case number

8 is 4:19-cr-03122-RM-LAB-1. I am charged with bank robbery and am awaiting trial.

9

2. I am 26 years old. I have a fiancée and 10-month-old daughter.

10

3. I have been diagnosed with severe asthma and always need to keep my

11 inhaler nearby. I also have a history of substance-use disorder.

12

4. I live in a pod with about 40 people. We share three telephones and five

13 showers. I also share a cell with one other person. Our beds are placed about one foot

14 apart, and we share a bathroom and a sink.

15

5. Before moving to my current cell, I lived in a cell with 14 people. In this

16 cell, we slept on bunk beds that were about one foot apart. The 14 people in my cell

17 shared one bathroom and one sink.

18

6. Once a week, the people in my pod receive bathroom products like soap

19 and toothpaste. I do not know how to get more soap if I need it.

20

7. Around April 15, 2020, the people in my pod received paper masks, but we

21 were not required to wear them. No one wore the masks, including CCA staff. The staff

22 is not taking anyone’s temperature unless people go to the medical unit. Nor is anyone in

23 my pod being tested for COVID-19.

24

8. On April 30, 2020, the guards told us that they would begin wearing masks,

25 but they reassured us that no one at CCA has tested positive for COVID-19. A guard at

26 CCA separately told me that someone has tested positive for COVID-19.

27

9. There is no social distancing. People in my pod can interact closer than six

28 feet apart, and they frequently do so. During mealtimes, people wait in lines for food and

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Case 2:20-cv-00901-DJH--DMF Document 1-8 Filed 05/08/20 Page 3 of 3

1 then sit at the 12 tables in the pod. Each table has 4 chairs, and these tables are full

2 during mealtimes. Inmate jobs also are continuing as usual, despite the risks from

3 COVID-19. These jobs include shower porters, tray washers, table washers, kitchen

4 staff, and barbers. The people working these jobs typically work close to each other and

5 often work in small rooms or spaces.

6

10. Due to the conditions at CCA, I am afraid of contracting COVID-19. This

7 particularly worries me because of my severe asthma. Based on these concerns, I filed a

8 grievance around April 15, 2020, asking for conditions that would reduce the risk of

9 COVID-19 spreading through my pod. I did not receive a response, so I filed another

10 grievance on April 30, 2020. On both occasions, I tried to file an emergency grievance,

11 but no emergency-grievance forms were available. Grievance forms are rarely available,

12 and I have looked for them on several different occasions. I still have not received a

13 response to either grievance that I filed.

14

11. I have a young family, including my fiancée and 10-month-old daughter. If

15 I was released from CCA during the pendency of my criminal proceeding, I would be able

16 to live with my family in Tucson, Arizona. I would be able to self-isolate in this location

17 for at least 14 days.

18

19

I, Matthew R. Koerner, certify that I reviewed the information contained in this

20 declaration with James T. Ciecierski by telephone on May 4, 2020, and that he certified

21 that the information contained in this declaration was true and correct to the best of his

22 knowledge.

23

Executed this 4th day of May, 2020.

24

25

/s/ Matthew R. Koerner

26

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Case 2:20-cv-00901-DJH--DMF Document 1-9 Filed 05/08/20 Page 1 of 5
EXHIBIT 7

Case 2:20-cv-00901-DJH--DMF Document 1-9 Filed 05/08/20 Page 2 of 5

1

DECLARATION OF MARVIN LEE ENOS

2 I, Marvin Lee Enos, do hereby declare, under penalty of perjury under the laws of the United

3 States of America, that the following is true and correct to the best of my knowledge and belief:

4 5 1.

I am currently detained at Central Arizona Florence Correctional Complex awaiting trial.

6 I have been here since August of 2019. My case number is 19-cr-02041-JAS-DTF.

7 2. I am charged with two counts of aggravated sexual abuse and two counts of assault with

8 intent to commit aggravated sexual abuse.
9 3. I am 29 years old. I have a number of serious medical conditions including hypertension 10
and asthma. Before I was incarcerated I smoked a pack a day of cigarettes and have a Body Mass 11
Index of 41.96. I am scared for my well-being because of these conditions. 12 13 4. I am generally held in a segregated housing unit. In that unit there are 56 people in our

14 pod and 14 people in our shared room. We sleep in bunk beds about five feet apart. We share a

15 single toilet and four showerheads.

16 5. The toilet and showers are not cleaned between individual uses.
17 6. We have only been provided one mask since the COVID-19 outbreak started. It is a thin 18
blue mask, not an N95 mask. I am wearing mine but most people are not wearing masks inside 19
the pod. We have no gloves. 20
21 7. Until recently, no staff members were wearing masks.

22 8. Once a week, on Wednesdays, we receive two small bars of soap and a small bottle of

23 shampoo, which is often not enough to keep clean for the week. When I run out of soap, I just

24 have to wait until the next Wednesday to get more. They have not provided us more soap since

25 the pandemic started.

26

9. 27

In my regular housing unit, I work as a shower cleaner and am responsible for cleaning

28 the showers with one other inmate. We are not given protective equipment and only a small

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Case 2:20-cv-00901-DJH--DMF Document 1-9 Filed 05/08/20 Page 3 of 5

1 amount of cleaning supplies, which are not enough to clean the showers at all. Sometimes I try to

2 use my personal shampoo to clean the showers for my job.
3 10. We eat meals in the shared dayroom area. The tables in the dayroom seat four people per
4 table, and we sit and eat meals together on trays. Neither the tables nor the trays are cleaned as
5 6 far as I can tell. Inmates used to have a job of cleaning the tables before we would eat but that is
7 not happening anymore.

8 11. In the segregated housing unit there is no social distancing. We are all very close to each

9 other.
10 12. There is no hand sanitizer. 11
13. On April 29 after an incident in my housing pod I was sent to isolation. Things are even 12
worse here. 13 14 14. In isolation, I am in a cell with two other people. We cannot be further than 2 feet from

15 each other. Staff checks on us every hour.

16 15. We are not permitted to shower every day so I am worried about staying clean.

17 16. We are sharing a shower and a toilet. They are filthy.

18 17. I still only have the one mask I was given weeks ago. It is not clean.

19 18.
20

I was not tested for COVID before being moved from my regular housing unit into

isolation. Nobody that I know has been tested for COVID. 21

22 19. I have not had my temperature taken at any time.

23 20. When we speak on the phone to our lawyers, we are near other people and the phones are

24 not cleaned between calls. During my most recent legal call, I was crammed into a room with

25 about 10 people and we were given a cordless phone to use that was not being cleaned as far as I
26 could tell.
27

28

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Case 2:20-cv-00901-DJH--DMF Document 1-9 Filed 05/08/20 Page 4 of 5
1 21. This week we heard that someone tested positive for COVID-19 within the facility. I 2 heard from another inmate whose sister informed him based on something she saw on Facebook. 3
No one informed us directly. Nothing has changed within the facility except now the staff are 4
wearing their masks. They also have blue masks but theirs are much thicker than ours. I do not 5 6 know how often they change out their masks. 7 22. Concerned for my safety and well-being and my ability to survive under these conditions,
8 I filed an emergency grievance April 19 and April 22 asking to be protected from COVID-19.
9 After about one week, the unit manager responded to my April 19 grievance and said that 10 everything was fine. I still have not received a response to my April 22 grievance. I kept the 11
receipt from the grievance in a book in my cell but it was taken away from me so now I do not 12
have it. 13 14 23. I am scared that if conditions do not improve in here that I will get really sick and that I 15 could die.
16 24. My defense lawyer appealed my detention here based on COVID-19 in court but it was
17 denied. 18 25. If I were released I would live with my mother at our home in the Sif Oidak District 19
within the Tohono O’Odham Nation Reservation in Arizona, south of Florence. She has a vehicle 20
and could transport me safely home. The only people in the house would be me, my mother and 21 22 her boyfriend and I could safely quarantine for fourteen days or longer as needed.
23
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Case 2:20-cv-00901-DJH--DMF Document 1-9 Filed 05/08/20 Page 5 of 5

1 I, Chase Strangio, certify that I reviewed the information contained in this declaration

2 with Marvin Lee Enos by telephone on April 30, 2020, and that he certified that the information
3 contained in this declaration was true and correct to the best of his knowledge.
4

5

6

7 Executed this 30th day of April, 2020.

8

9

/s/Chase Strangio

10

Chase Strangio

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 Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 1 of 20

1 Jean-Jacques Cabou (#022835) Matthew R. Koerner (#035018)
2 Margo R. Casselman (#034963) Benjamin C. Calleros (#034763)
3 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
4 Phoenix, Arizona 85012-2788 Telephone: 602-351-8000
5 Facsimile: 602-648-7000 JCabou@perkinscoie.com
6 MKoerner@perkinscoie.com MCasselman@perkinscoie.com
7 BCalleros@perkinscoie.com DocketPHX@perkinscoie.com
8 Attorneys for Plaintiffs–Petitioners
9 (additional counsel identified on signature page)

10 IN THE UNITED STATES DISTRICT COURT
11 FOR THE DISTRICT OF ARIZONA
12

13 Maria Guadalupe Lucero-Gonzalez; Claudia Romero-Lorenzo; Tracy Ann Peuplie; James
14 Tyler Ciecierski; and Marvin Lee Enos, each individually and on behalf of all others similarly
15 situated,

16

17

Plaintiffs–Petitioners,

No. ____________________ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AND MEMORANDUM IN SUPPORT

18 v.
19 Kris Kline, Warden of the Central Arizona Florence Correctional Complex; David Gonzales,
20 U.S. Marshal for the District of Arizona; Donald W. Washington, Director of the U.S. Marshals
21 Service; Michael Carvajal, Director of the Federal Bureau of Prisons, in their official capacities,
22 Defendants–Respondents.
23

(Oral Argument and Expedited Ruling Requested)

24

25

26

27

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Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 2 of 20

1

MOTION FOR TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION

2

3

Plaintiffs–Petitioners (“Plaintiffs”), on behalf of themselves and the proposed class

4 members, respectfully move for a temporary restraining order (“TRO”) and a preliminary

5 injunction against Defendants–Respondents (“Defendants”). See Fed. R. Civ. P. 65. Plaintiffs

6 seek injunctive relief to remedy unconstitutional conditions of confinement at CoreCivic Inc.’s

7 Central Arizona Florence Correctional Complex (“CoreCivic”), due to a growing outbreak of

8 COVID-19 transmissions among detainees, guards, and medical staff. Plaintiffs specifically

9 request that this Court: (1) issue an order (a) appointing an independent expert, under Rule 706

10 of the Federal Rules of Civil Procedure, to inspect CoreCivic and its social-distancing and

11 hygienic practices, and (b) directing the expert to submit to the Court a report on whether these

12 measures comply with recommendations of public-health experts and are adequate to protect

13 Plaintiffs from COVID-19; and (2) if based on this report the Court concludes that these

14 conditions violate Plaintiffs’ constitutional right not to be subjected to unreasonable conditions

15 of confinement, issue an order directing Defendants to (a) immediately implement the expert’s

16 recommendations and (b) provide weekly updates on their progress.

17

Plaintiffs meet the requirements, under Federal Rules of Civil Procedure (“Rule”) 65,

18 for a TRO and a preliminary injunction. Defendants have failed to protect Plaintiffs from the

19 known and serious risks posed by the COVID-19 pandemic. These failures have violated

20 Plaintiffs’ rights under the Fifth and Eighth Amendments to the United States Constitution.

21 Absent such relief, Plaintiffs will suffer irreparable harm up to and including their deaths. And

22 both the balance of equities and the public interest favor granting Plaintiffs’ requested relief.

23

Plaintiffs also have satisfied the notice requirements of Rule 65. On May 8, 2020,

24 counsel for Plaintiffs notified Defendants that they have failed to protect against COVID-19

25 transmission and must remedy these unconstitutional conditions. Plaintiffs’ counsel also

26 disclosed that this litigation was imminent. After filing, Plaintiffs’ counsel promptly will send

27 Defendants a copy of Plaintiffs’ Class-Action Complaint for Declaratory and Injunctive Relief

28 and Petition for Writs of Habeas Corpus (the “Complaint”), along with a copy of this Motion.

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Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 3 of 20

1 Due to Plaintiffs’ immediate and irreparable injury, no further notice should be required. See

2 Fed. R. Civ. P. 65(b)(1)(A), (B). Plaintiffs also request that this Court waive any security

3 requirement. See Fed. R. Civ. P. 65(c).

4

This Motion is based on the below Memorandum in Support; the Complaint and its

5 supporting documents and exhibits; and other evidence and arguments as may be presented.

6 For these reasons, Plaintiffs respectfully request that this Court issue a TRO and a preliminary

7 injunction, and grant such other relief as appropriate, to prevent the serious and deadly risks

8 that Plaintiffs face at CoreCivic during this global pandemic.

9

MEMORANDUM IN SUPPORT

10

For the past six weeks, much of the United States has been socially distancing as a result

11 of the COVID-19 pandemic. While knowing of this crisis and the dangers posed by unsanitary

12 conditions and inadequate social distancing and testing, though, Defendants have failed to

13 protect Plaintiffs from these risks. Now, COVID-19 diagnoses are increasing at CoreCivic.

14 Plaintiffs are crammed in 80-person pods, masks and gloves are unavailable or inadequate, and

15 without action it is only a matter of time before this initial outbreak engulfs the entire facility.

16 The window for averting widespread infection will soon close without this Court’s intervention.

17

Detaining Plaintiffs in these conditions violates Plaintiffs’ rights under the Fifth and

18 Eighth Amendments to the United States Constitution. Therefore, for the reasons below,

19 Plaintiffs respectfully request that the Court issue a TRO and a preliminary injunction.

20 I. 21

BACKGROUND The ongoing pandemic presented by COVID-19 already has altered many aspects of

22 our society and will continue to do so. As of May 8, 2020, over 1,239,000 people have tested

23 positive for COVID-19 and over 76,000 have died as a result of the disease, in the United

24 States alone. In Arizona, nearly 10,000 people have tested positive and 426 have died. These

25 numbers rise daily.

26

Individuals held in detention, and staff in detention facilities, are among the most

27 vulnerable to an outbreak. Without social distancing and hygienic measures, the virus spreads

28 uncontrollably in close quarters. At CoreCivic, Defendants have crammed up to 80 people into

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Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 4 of 20

1 one pod and up to 14 people in one cell, where beds are stacked on beds fewer than six feet

2 apart. Defendants likewise have created unsanitary conditions: soap is scarce, cleaning supplies

3 are limited, and social distancing is impossible. With at least 20 positive COVID-19 diagnoses

4 at the facility so far,1 the chances of stopping an outbreak grow increasingly slim each passing

5 day. Everyone at CoreCivic—including Plaintiffs, correctional officers, and medical staff—will

6 be affected. Many will become infected. Too many of those will die without immediate action.

7 And many of these infected individuals—especially those who are asymptomatic—will further

8 circulate the virus throughout CoreCivic, the broader community, and beyond.

9 A. 10

Defendants have detained federal pretrial and post-conviction detainees— including Plaintiffs—at CoreCivic.

11

The named Plaintiffs are five individuals detained in federal custody at CoreCivic, who

12 seek to represent a class of all detainees in federal custody at CoreCivic. Plaintiff Maria

13 Guadalupe Lucero-Gonzalez is detained at CoreCivic for a supervised-release violation,

14 following a conviction for illegal reentry. She seeks to represent the class of post-conviction

15 detainees (“Post-Conviction Class”). The remaining Plaintiffs—Claudia Romero-Lorenzo,

16 Tracy Ann Peuplie, James Tyler Ciecierski, and Marvin Lee Enos—are detained at CoreCivic

17 while they await trial or sentencing on various federal criminal charges, for which they are

18 presumed innocent.2 They seek to represent the class of pretrial detainees (“Pretrial Class”).

19

Many of the Plaintiffs and proposed class members have one or more underlying

20 medical conditions that make them particularly vulnerable to COVID-19. Ms. Lucero-

21

1 About 400 Inmates Quarantined at CoreCivic Prison in Florence, After 13 Test Positive for

22 COVID-19,

AZ

Central

(May

8,

2020

7:00

a.m.),

https://www.azcentral.com/story/news/local/arizona-health/2020/05/08/coronavirus23 cases-multiple-inmates-test-positive-corecivic-prison-covid-19/3093348001/.

2 Several circuits have held that the Fifth Amendment’s Due Process Clause applies to 24 both pretrial detainees and people who have been convicted but not yet sentenced. See, e.g.,

Lewis v. Downey, 581 F.3d 467, 474 (7th Cir. 2009). The Supreme Court also has observed that 25 “Eighth Amendment[] protections d[o] not attach until after conviction and sentence.” Graham

v. Connor, 490 U.S. 386, 392 n.6 (1986). And the Ninth Circuit has addressed this issue only in 26 the context of the standard for determining a due-process liberty interest in being free from

segregated housing. See Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000). Here, because a 27 court has not yet issued a judgment and commitment for Plaintiffs Romero, Peuplie, Ciecierski,

and Enos, they have not received a “formal adjudication of guilt” subjecting them to the Eighth 28 (rather than the Fifth) Amendment. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).

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Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 5 of 20

1 Gonzalez suffers from asthma, hypertension, diabetes, and kidney cancer. Ms. Romero-

2 Lorenzo suffers from several medical conditions, including a type of leukemia. Ms. Peuplie

3 suffers from multiple conditions, including asthma, hypertension, anxiety, substance-abuse

4 disorder, and spinal stenosis. Mr. Ciecierski suffers from severe asthma. And Mr. Enos suffers

5 from multiple severe medical conditions, including asthma and hypertension.

6

Defendants are the federal and private officials who have immediate custody over

7 Plaintiffs and all class members whom Plaintiffs seek to represent. Defendant Kris Kline is the

8 warden of CoreCivic. Defendant David Gonzales is the U.S. Marshal for the District of

9 Arizona, and Defendant Donald W. Washington is the Director of the U.S. Marshals Service.

10 And Defendant Michael Carvajal is the Director of the Federal Bureau of Prisons.

11 B. COVID-19 poses an unprecedented risk of illness, injury, and death.

12

The 2019 novel coronavirus known to cause coronavirus disease 2019 (“COVID-19”)

13 spreads from person to person through respiratory droplets, close personal contact, and

14 contact with contaminated surfaces and objects. [Compl. ¶ 28 & Ex. 2 (Declaration of Joseph

15 Goldenson, M.D. (“Goldenson Decl.”)) ¶ 21] There is no vaccine, nor any known medication

16 to prevent or treat the virus. [Compl. ¶ 28 & Ex. 2, ¶¶ 17, 24] The only known measures for

17 effectively protecting against transmission of COVID-19 are “social distancing”—that is,

18 keeping at least six feet between persons to avoid transmission—and a vigilant hygienic

19 regimen, including frequent and thorough hand washing. [Compl. ¶ 28 & Ex. 2, ¶¶ 17, 24]

20 Because the coronavirus spreads among people who do not show symptoms, social distancing

21 is the best way to prevent transmission. [Compl. ¶ 28] Up to 25% of people infected with

22 COVID-19, it is estimated, lack symptoms of COVID-19. [Compl. ¶ 28 & Ex. 2, ¶ 31]

23

Once contracted, COVID-19 can cause severe damage or even death. [Compl. ¶ 29]

24 People of any age who suffer from certain underlying medical conditions—including lung

25 disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis patients),

26 diabetes, epilepsy, hypertension, compromised immune systems (such as from cancer, HIV, or

27 autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic

28 disorders, stroke, developmental delay, and asthma—also have elevated risks due to COVID-

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Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 6 of 20

1 19. [Compl. ¶ 31 & Ex. 2, ¶ 10] Most people in higher risk categories who develop serious

2 illness will need advanced medical support, requiring highly specialized equipment like

3 ventilators that are in limited supply, and an entire team of care providers. [Compl. ¶ 32]

4 Patients can show the first symptoms of infection in as little as two days after exposure, and

5 their condition can seriously deteriorate in as little as five days or sooner. [Compl. ¶ 34]

6

Correctional settings—like CoreCivic—further increase the risk of contracting

7 COVID-19 due to the high numbers of people with chronic, often untreated, illnesses housed

8 in a setting with minimal levels of sanitation, limited access to personal hygiene products,

9 limited access to medical care, numerous high-contact surfaces, and no possibility of staying at

10 a distance from others. [Compl. ¶ 36 & Ex. 2, ¶¶ 19–30] Numerous public health experts have

11 all strongly cautioned that people booked into and held in jails and prisons are likely to face

12 serious, even deadly, harm due to the outbreak of COVID-19. [Compl. ¶ 38]

13 C. Governments, businesses, and communities have implemented stringent

preventative measures to slow the spread of COVID-19. 14

Due to the risks posed by the COVID-19 pandemic, people have implemented 15

responsive measures globally, nationally, and in Arizona. On March 13, 2020, the President 16

declared a state of emergency. [Compl. ¶ 40] Numerous states also have issued “stay at home” 17

orders, asking people to stay home in order to stop the spread of COVID-19. [Compl. ¶ 41] 18

The State of Arizona similarly is taking unprecedented steps to manage the public health 19

crisis caused by COVID-19 and to minimize the spread of the virus. On March 11, 2020, 20

Arizona Governor Doug Ducey declared a State of Emergency due to the COVID-19 21

outbreak. [Compl. ¶ 42] Days later, on March 15, Governor Ducey closed all public schools, a 22

closure later extended through the end of the 2019–2020 school year. [Id.] Then, on March 30 23

Governor Ducey ordered a statewide “stay-at-home” order. [Id.] And on April 29, Governor 24

Ducey extended the stay-at-home order to at least May 15, 2020. [Id.] 25

D. Despite the grave risks posed by COVID-19, Defendants have not provided safe

26

conditions of confinement to protect Plaintiffs from infection.

27

Defendants must address these risks above by following public-health guidelines,

28

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Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 7 of 20

1 including those by the Centers for Disease Control and Prevention (“CDC”).3 But Defendants

2 have failed to do so, exposing Plaintiffs to unreasonable risks of contracting COVID-19.

3

Detainees at CoreCivic are detained in community “pods,” or housing units, typically

4 containing either 40 or 80 people. [Compl. Ex. 6 (Declaration of James Tyler Ciecierski

5 (“Ciecierski Decl.”)) ¶ 4; Compl. Ex. 5 (Declaration of Tracy Ann Peuplie (“Peuplie Decl.”))

6 ¶ 5; Compl. Ex. 3 (Declaration of Maria Guadalupe Lucero-Gonzalez (“Lucero Decl.”)) ¶ 8;

7 Compl. Ex. 4 (Declaration of Claudia Romero-Lorenzo (“Romero Decl.”)) ¶ 7] All 40 or 80

8 people in the pod share between four to six showers and three to four telephones. [Ciecierski

9 Decl. ¶ 4; Peuplie Decl. ¶ 5; Lucero Decl. ¶ 8; Romero Decl. ¶ 7; Compl. Ex. 1 (Declaration of

10 Christina M. Woehr (“Woehr Decl.”) ¶ 33] Within their pods, Plaintiffs share a cell with either

11 one person or as many as 13 other people. [Ciecierski Decl. ¶¶ 4–5; Woehr Decl. ¶ 42; Peuplie

12 Decl. ¶ 6; Lucero Decl. ¶ 10; Romero Decl. ¶ 8] In cells with one other person, beds are placed

13 only a couple feet, or arms’ length, apart. [Woehr Decl. ¶ 43; Ciecierski Decl. ¶ 4; Lucero Decl.

14 ¶ 10; Romero Decl. ¶ 8] In cells with bunk beds, as many as six bunks are often placed against

15 the same wall, within one or two feet apart. [Ciecierski Decl. ¶ 5; Peuplie Decl. ¶ 6] Everyone

16 in a cell—regardless of whether it houses two or 14 people—shares a single toilet and sink.

17 [Peuplie Decl. ¶ 6; Lucero Decl. ¶ 10; Romero Decl. ¶ 8] In isolation, Plaintiff Enos is held in

18 a small cell with two other people as close to two feet apart without access to daily showers.

19 [Compl. Ex. 7 (Declaration of Marvin Lee Enos) ¶¶ 13–15]

20

When people are first transferred to CoreCivic, they are placed in a “quarantine room”

21 or “cohort” with other people who recently came to the facility. [Peuplie Decl. ¶ 12] These

22 cohorts are held in a small room for 14 days. [Id.] After 14 days, they are moved to the pod and

23 are placed in a cell housing between two to 14 people. [Id.] Sometimes before the end of the

24 14 days, though, people in quarantine are removed from quarantine and placed in the general

25 population, “by mistake,” before eventually being returned to quarantine. [Woehr Decl. ¶ 30]

26 3 See, e.g., Centers for Disease Control and Prevention, Interim Guidance on Management of
27 Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-
28 correctional-detention.html (last visited May 7, 2020).

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Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 8 of 20

1

Defendants have not attempted to implement social distancing by any means. [Peuplie

2 Decl. ¶ 7; Lucero Decl. ¶ 8; Romero Decl. ¶¶ 7, 16] People frequently stand close together in

3 lines when waiting for meals, for medical appointments, and for the communal telephones.

4 [Ciecierski Decl. ¶ 9; Peuplie Decl. ¶ 7; Lucero Decl. ¶ 9; Woehr Decl. ¶ 40] These telephones

5 are placed “considerably less than six feet apart, requiring [detainees] to stand within 2 to 3 feet

6 to other detainees while using the phone to call their attorneys or families.” [Woehr Decl. ¶ 36]

7 There is nearly always a line of people waiting to use these phones. [Woehr Decl. ¶ 37; Peuplie

8 Decl. ¶ 7] People cram together at tables during mealtime. [Woehr Decl. ¶ 38; Ciecierski Decl.

9 ¶ 9; Peuplie Decl. ¶ 7; Lucero Decl. ¶ 9] And jobs for detainees, including kitchen staff and

10 barbers, have continued as usual, with as many as 17 people working in close quarters.

11 [Ciecierski Decl. ¶ 9; Romero Decl. ¶ 9; Woehr Decl. ¶¶ 72–73]

12

Despite CDC and other public health recommendations, Plaintiffs did not receive any

13 sort of mask until mid-April 2020. [Ciecierski Decl. ¶ 7; Lucero Decl. ¶ 17; Romero Decl. ¶ 12]

14 Some still have not received masks. [Woehr Decl. ¶¶ 61–63] The masks Plaintiffs did receive,

15 if at all, were thin disposable paper masks, not the N95 masks recommended by the CDC.

16 [Woehr Decl. ¶ 62; Ciecierski Decl. ¶ 7; Peuplie Decl. ¶ 9; Lucero Decl. ¶ 17; Romero Decl.

17 ¶ 11] CoreCivic’s guards also tease detainees that these disposable masks “‘don’t work’ against

18 the virus.” [Woehr Decl. ¶ 68]

19

When Plaintiffs eventually received masks, Defendants did not require everyone to wear

20 a mask. [Ciecierski Decl. ¶ 7; Peuplie Decl. ¶ 9; Lucero Decl. ¶ 17] And because masks were

21 not required, most people—including guards and other CoreCivic staff—did not wear a mask.

22 [Ciecierski Decl. ¶ 7; Peuplie Decl. ¶¶ 9, 11; Lucero Decl. ¶ 17] Although beginning around

23 April 30, 2020, Plaintiffs have been required to wear masks when outside the pods, Plaintiffs

24 are not required to wear masks when in their pods or cells. [Peuplie Decl. ¶ 9; Lucero Decl.

25 ¶ 17; Romero Decl. ¶ 11] Few people (if any) wear masks inside the pods and cells. [Lucero

26 Decl. ¶ 17; Woehr Decl. ¶ 62] Guards and other staff began wearing masks beginning around

27 April 30, 2020, after the first confirmed case within the facility, but many still are not

28 consistently wearing masks or gloves. [Lucero Decl. ¶¶ 18–19; Romero Decl. ¶ 12; Woehr Decl.

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Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 9 of 20

1 ¶¶ 31, 66–67] Plaintiffs have received only one or two masks, and when these masks are broken

2 or lost, Defendants have required Plaintiffs to share and swap each other’s masks in order to

3 leave the pod for things like laundry and legal calls. [Peuplie Decl. ¶ 10; Woehr Decl. ¶ 29]

4

Plaintiffs receive, only once per week, a small amount of soap and shampoo. [Ciecierski

5 Decl. ¶ 6; Lucero Decl. ¶ 15; Romero Decl. ¶ 10; Woehr Decl. ¶ 53] Plaintiffs have not received

6 additional or different hygiene products since COVID-19 spread to Arizona. [Peuplie Decl.

7 ¶ 8; Lucero Decl. ¶¶ 15–16; Romero Decl. ¶ 10; Woehr Decl. ¶ 28] These bathroom supplies

8 frequently are not enough to last the week, especially because Plaintiffs—lacking other cleaning

9 supplies—are forced to use their personal allotment of soap to clean their plates, cups, or even

10 cells. [Lucero Decl. ¶ 15; Romero Decl. ¶ 10; Woehr Decl. ¶¶ 27–28, 52, 54] When people run

11 out of their weekly allotment of soap, they must purchase more—if they can afford to do so—

12 from the commissary at CoreCivic. [Lucero Decl. ¶ 15; Romero Decl. ¶ 10] If they cannot

13 afford to do so, they have no soap at all. [Woehr Decl. ¶ 55]

14

Defendants also fail to adequately and consistently clean the pods and cells, in order to

15 disinfect and stop the spread of COVID-19. Plaintiffs are responsible for cleaning their own

16 pods and cells. [Peuplie Decl. ¶¶ 5–6; Lucero Decl. ¶¶ 12, 14; Romero Decl. ¶ 13; Woehr Decl.

17 ¶¶ 48–49] When cleaning the pods and cells, Plaintiffs do not receive or wear personal

18 protective equipment (“PPE”), like gloves or masks. [Peuplie Decl. ¶ 5; Lucero Decl. ¶ 12;

19 Romero Decl. ¶ 13] To clean both the pods and cells, Plaintiffs receive only a small amount of

20 cleaning solution—none of which is antibacterial. [Peuplie Decl. ¶ 5; Lucero Decl. ¶ 14] For

21 some, this cleaning solution runs out, every day, before the pod and cells are cleaned. [Woehr

22 Decl. ¶ 50; Peuplie Decl. ¶ 5] Some resort to cleaning with water only. [Woehr Decl. ¶ 50] And

23 frequently used items—like communal telephones—are not cleaned between uses, or even

24 every day. [Woehr Decl. ¶¶ 33, 46; Lucero Decl. ¶ 13] Lacking any disinfecting products or

25 wipes to clean the telephones between uses and fearing the possibility of contracting COVID-

26 19, women in the pods have resorted to cleaning the phones with shirts or with menstrual pads

27 wet down with water. [Lucero Decl. ¶ 13; Romero Decl. ¶ 13]

28

Plaintiffs also have been exposed to numerous people who have showed symptoms of

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Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 10 of 20

1 COVID-19. [Lucero Decl. ¶ 19; Romero Decl. ¶ 15] Some of the people showing such

2 symptoms were placed in quarantine and then returned to the pod without being tested for

3 COVID-19, even though their symptoms continued. [Romero Decl. ¶ 15] Despite the risks of

4 COVID-19 spreading through CoreCivic and signs of symptoms from people at CoreCivic,

5 Defendants also have failed to even investigate the spread at the facility. Only a handful of

6 people at CoreCivic have been tested for COVID-19 or checked for symptoms of COVID-19

7 by, for example, taking a person’s temperature. [Ciecierski Decl. ¶ 7; Peuplie Decl. ¶ 13; Lucero

8 Decl. ¶ 20; Romero Decl. ¶ 14; Woehr Decl. ¶¶ 19, 69–70] And even some showing symptoms

9 of COVID-19 and requesting medical care have not been tested. [Woehr Decl. ¶ 70]

10

Defendants also have exposed Plaintiffs to unnecessary risk of exposure by failing to

11 provide them with information about COVID-19, measures for preventing its spread, or the

12 very real risks of contracting and spreading COVID-19 at CoreCivic. [Peuplie Decl. ¶ 11;

13 Lucero Decl. ¶ 11; Ciecierski Decl. ¶ 8; Woehr ¶ 76] And despite acknowledging elsewhere that

14 COVID-19 has spread to CoreCivic [Woehr Decl. ¶¶ 19, 76], Defendants have refused to

15 inform the people most needing this information: Plaintiffs. Defendants have failed to disclose

16 to Plaintiffs that people at CoreCivic have tested positive for COVID-19. [Peuplie Decl. ¶ 11;

17 Ciecierski Decl. ¶ 8; Romero Decl. ¶ 17] Defendants, in fact, have affirmatively denied these

18 positive tests, claiming they are merely “rumors” from other facilities. [Romero Decl. ¶ 17] But

19 even the correctional officers at CoreCivic acknowledge (privately) these positive tests.

20 [Ciecierski Decl. ¶ 8]

21

Furthermore, Defendants’ generic policies for “managing” COVID-19 are inadequate

22 to stop it from spreading.4 Defendants’ policy of quarantining groups of persons who are

23 transferred to CoreCivic on the same day, for example, will not stop COVID-19 from

24 continuing to spread within the facility. The World Health Organization has reported that “the

25

4 See CoreCivic Inc., How CoreCivic is Managing COVID-19, 26 https://www.corecivic.com/hubfs/_files/CoreCivic%20Response%20to%20COVID-1.pdf;

see also Media Statement, CoreCivic Inc., CoreCivic Statement on COVID-19 Prevention, 27 https://www.corecivic.com/en/corecivic-statement-on-covid-19-prevention; CoreCivic Inc.,

Frequently

Asked

Questions

Regarding

COVID-19,

28 https://www.corecivic.com/hubfs/_files/FAQ%20Regarding%20COVID.pdf.

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Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 11 of 20

1 incubation period for COVID-19, which is the time between exposure to the virus (becoming

2 infected) and symptoms onset, is an average of 5–6 days, however can be up to 14 days.” World

3 Health Organization, Coronavirus Disease 2019 (COVID-19) Situation Report – 73 (Apr. 2, 2020),

4 https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200402-sitrep-

5 73-covid-19.pdf?sfvrsn=5ae25bc7_2. During this “pre-symptomatic” time, “infected persons

6 can be contagious.” Id. Because Defendants have quarantined people together without social

7 distancing, proper PPE, or sanitation, detainees can spread the virus to each other and then

8 throughout the facility. One medical physician, in fact, concludes that this practice “does not

9 conform to CDC guidelines and it would likely contribute to the overall transmission rate.”

10 [Goldenson Decl. ¶ 33]

11

Now, 20 people at CoreCivic—detainees, guards, and medical staff—have tested

12 positive for COVID-19. Defendants have failed to implement policies and conditions to stop

13 this outbreak now spreading through the facility. And Defendants thus have exposed Plaintiffs

14 (and the public) to unreasonable risk of harm arising from this global pandemic.

15 II. 16

LAW AND DISCUSSION A court may grant injunctive relief when the movant “establish[es] [1] that he is likely

17 to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of

18 preliminary relief, [3] that the balance of equities tip in his favor, and [4] that an injunction is

19 in the public interest.” Aleman Gonzalez v. Barr, 955 F.3d 762, 768 (9th Cir. 2020) (quoting Winter

20 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). Courts have applied this approach to

21 motions both for a preliminary injunction and for a TRO. See, e.g., Stuhlbarg Int’l Sales Co. v. John

22 D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). “Under this approach, the elements of

23 the preliminary injunction test are balanced, so that a stronger showing of one element may

24 offset a weaker showing of another.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th

25 Cir. 2011). Thus, “[a] preliminary injunction is appropriate when the [movant]

26 demonstrates . . . that serious questions going to the merits were raised and the balance of the

27 hardships tips sharply in the [movant]’s favor, . . . so long as the [movant] also shows that there

28 is a likelihood of irreparable injury and that the injunction is in the public interest.” Id. at 1134–

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Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 12 of 20

1 35 (citation omitted). Each of these elements is satisfied here.

2

A. Plaintiffs are likely to succeed on the merits of their claims.

3

Plaintiffs divide into a Pretrial Class governed by the Fifth Amendment and a Post-

4 Conviction Class governed by the Eighth Amendment. The Eighth Amendment’s deliberate

5 indifference test “provide[s] a minimum standard of care” for both classes. Gordon v. County of

6 Orange, 888 F.3d 1118, 1122 (9th Cir. 2018) (citation omitted); see also Estelle v. Gamble, 429 U.S.

7 97, 104-05 (1976) (applying test to post-conviction detainees). Plaintiffs are likely to succeed in

8 establishing that Defendants have acted with deliberate indifference to Plaintiffs’ safety and

9 serious medical needs, thereby violating the constitutional rights of both classes. The Pretrial

10 Class also is likely to establish that Defendants have subjected the class to unconstitutional

11 punishment under the Fifth Amendment.

12

1. Defendants are subjecting all Plaintiffs to unconstitutional

conditions of confinement under the Eighth Amendment. 13

Under the Eighth Amendment, corrections officials have a constitutional obligation to

14

“provide humane conditions of confinement,” including adequate medical care, and to “take

15

reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825,

16

832–33 (1994). “[H]aving stripped [prisoners] of virtually every means of self-protection and

17

foreclosed their access to outside aid, the government and its officials are not free to let the

18

state of nature take its course.” Id. at 833. Corrections officials violate this obligation by

19

showing “deliberate indifference” to a substantial risk of serious harm. Estelle, 429 U.S. at 104

20

(“deliberate indifference to serious medical needs of prisoners” is “proscribed by the Eighth

21

Amendment”).

22

The deliberate-indifference test contains both an objective-knowledge and a subjective-

23

intent prong. See Wilson v. Seiter, 501 U.S. 294, 298 (1991); Allen v. Sakai, 48 F.3d 1082, 1083

24

(9th Cir. 1994). Defendants have violated both prongs of the deliberate-indifference test.

25

For an impending infectious disease like COVID-19, both prongs are satisfied when

26

officials “ignore a condition of confinement that is sure or very likely to cause serious illness

27

and needless suffering the next week or month or year,” even when “the complaining inmate

28

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Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 13 of 20

1 shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33–34 (1993). In Helling,

2 an asymptomatic plaintiff’s showing of pervasive secondhand smoke in the detention facility

3 was sufficient to order injunctive relief: “That the Eighth Amendment protects against future

4 harm to inmates is not a novel proposition. . . . It would be odd to deny an injunction to

5 inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground

6 that nothing yet had happened to them.” Id. at 33.

7

The conditions at CoreCivic, as described above, are objectively unreasonable.

8 Defendants have failed to implement adequate social-distancing measures. Up to 80 people are

9 crammed into pods, up to 14 people share a single cell with a single bathroom, and detainees

10 are forced to wait in lines—standing closer than six feet apart—to collect food trays, receive

11 medical attention, or use the telephone. These lines are a hotbed for transmission. And making

12 matters only worse, Plaintiffs share masks or lack proper masks because Defendants have

13 provided only some people with one or two disposable masks. Defendants similarly have failed

14 to disinfect CoreCivic from the spread of COVID-19. Plaintiffs lack cleaning supplies to clean

15 their cells and pods. So, instead, they use only water. Some detainees, in fact, are forced to use

16 their personal hygiene products (like soap) to clean their own cups and cells, leaving them

17 without soap until the next week’s allotment. And women at CoreCivic—lacking any

18 disinfecting products or wipes to clean the telephones and fearing COVID-19—have resorted

19 to cleaning telephones with shirts or with menstrual pads wet down with water. Based on these

20 facts, Plaintiffs are likely to establish that their conditions are objectively unreasonable.

21

As to the subjective prong, a court “may infer the existence [of subjective deliberate

22 indifference] from the fact that the risk of harm is obvious.” Hope v. Pelzer, 536 U.S. 730, 738

23 (2002). Here, Defendants have acted with deliberate indifference to the serious risk of harm

24 posed by COVID-19. Defendants undoubtedly have known of the obvious risks posed by

25 COVID-19. This historic pandemic has struck both across the globe and within Arizona.

26 Communities, governments, and organizations have implemented stringent preventative

27 measures to slow the spread of COVID-19, as detailed above. Defendants cannot seriously

28 dispute they have known of the risks posed by COVID-19. Cf. Hare v. City of Corinth, 74 F.3d

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Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 14 of 20

1 633, 644 (5th Cir. 1996) (“[E]ven where a State may not want to subject a detainee to inhumane

2 conditions of confinement or abusive jail practices, its intent to do so is nevertheless presumed

3 when it incarcerates the detainee in the face of such known conditions and practices.”).

4

Based on the obviousness of these risks, Plaintiffs are likely to establish the subjective

5 prong of deliberate indifference. And combined with the unreasonable risks of COVID-19,

6 Plaintiffs are likely to succeed on their claim under the Eighth Amendment.

7

2. Defendants are subjecting the Pretrial Class to unconstitutional

punishment under the Fifth Amendment. 8

Because Defendants have violated all Plaintiffs’ Eighth Amendment rights, they

9

necessarily have violated the Pretrial Class’s Fifth Amendment rights. The Fifth Amendment’s

10

Due Process Clause governs the Pretrial Class’s claims. Because these individuals are

11

presumptively innocent and lack a “formal adjudication of guilt” for their charges, City of Revere,

12

463 U.S. at 244, the Supreme Court has held that “due process rights . . . are at least as great as

13

the Eighth Amendment protections available to a convicted prisoner.” Id. The Ninth Circuit

14

recognizes that, where an individual’s rights arise under the Due Process Clause, “the

15

guarantees of the Eighth Amendment provide a minimum standard of care for determining their

16

rights, including the rights to medical and psychiatric care.” Or. Advocacy Ctr. v. Mink, 322 F.3d

17

1101, 1120 (9th Cir. 2003) (quoting City of Revere, 463 U.S. at 244). Here, as shown above,

18

Defendants have failed to meet even the more exacting Eighth Amendment standard and

19

Plaintiffs have therefore shown a likelihood of success on the merits of their Fifth Amendment

20

claims as well.

21

Furthermore, the Pretrial Class, unlike the Post-Conviction Class, need not establish

22

“subjective indifference”—i.e., that “‘[a] prison official . . . knows of and disregards an

23

excessive risk to inmate health or safety.’” Gordon, 888 F.3d at 1120, 1125 n.4 (citation omitted);

24

accord Darnell v. Pineiro, 849 F.3d 17, 36 (2d Cir. 2017); see Kingsley v. Hendrickson, 135 S. Ct. 2466,

25

2472 (2015). This purely objective analysis requires a court to consider several factors:

26

27

(i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined;

28

(ii) those conditions put the plaintiff at substantial risk of suffering serious

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Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 15 of 20

1

harm;

2

(iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have

3

appreciated the high degree of risk involved—making the consequences

of the defendant’s conduct obvious; and

4

(iv) by not taking such measures, the defendant caused the plaintiff’s injuries.

5 Gordon, 888 F.3d at 1125. Every one of these factors is satisfied here.

6

First, Defendants cannot dispute they have “made an intentional decision with respect

7 to the conditions under which [Plaintiffs] [are] confined.” Id. at 1125. Defendants have

8 confined Plaintiffs to CoreCivic while they either await trial or serve their short terms of

9 incarceration. The conditions of confinement at CoreCivic—including inadequate social

10 distancing, disinfecting, and PPE—have resulted from Defendants’ deliberate decisions.

11

Second, Defendants also have “put [Plaintiffs] at substantial risk of suffering serious

12 harm,” Gordon, 888 F.3d at 1125, as the above establishes (at 12). Though the risks and spread

13 of COVID-19 are well known, the record here establishes that Plaintiffs face heightened and

14 unreasonable exposure to these serious—and often deadly—risks at CoreCivic. In this

15 pandemic, few places are more dangerous than a jail. The declaration of Dr. Joe Goldenson,

16 who has extensive experience in correctional health care, further establishes the unreasonable

17 risks at CoreCivic due to the COVID-19 pandemic. [Goldenson Decl. ¶¶ 19, 33–36].

18

Third, Defendants have not “take[n] reasonable available measures to abate that risk,

19 even though a reasonable official in the circumstances would have appreciated the high degree

20 of risk involved—making the consequences of [Defendants’] conduct obvious.” Gordon, 888

21 F.3d at 1125. Defendants, despite publicly acknowledging the importance of measures to

22 protect those in their custody, have not implemented public-health experts’ recommended

23 measures to abate the risks of COVID-19. Defendants have not implemented social distancing,

24 the primary tool recommended to prevent contracting COVID-19. Defendants also have not

25 provided Plaintiffs with adequate soap, hand sanitizer, masks, or other PPE, to prevent the

26 spread of COVID-19. And Defendants have tested only a few people for COVID-19.

27

Fourth, “by not taking such measures,” Defendants will cause Plaintiffs’ injuries and

28

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Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 16 of 20

1 perhaps even deaths. Gordon, 888 F.3d at 1125. Without the measures recommended by public-

2 health experts and with the close quarters and lack of mitigation measures to stop the spread

3 of COVID-19, it is inevitable that the virus—which already has entered the facility— will

4 continue to envelop CoreCivic. This not only will infect dozens of individuals, but also will

5 lead to numerous deaths. [Goldenson Decl. ¶¶ 33–37] In sum, the Pretrial Class is likely to

6 establish the objective factors enumerated above. See Gordon, 888 F.3d at 1125.

7

Separately, the Pretrial Class may establish likelihood of success by showing Defendants

8 have subjected them to unconstitutional pre-adjudication punishment. The Fifth Amendment’s

9 Due Process Clause prohibits the government from punishing detainees before “a formal

10 adjudication of guilt in accordance with due process of law.” Bell v. Wolfish, 441 U.S. 520, 535

11 n.16 (1979) (quoting Ingraham v. Wright, 430 U.S. 651, 671–72 n.40 (1977)). Thus, the

12 government violates a detained person’s rights if conditions of confinement amount to

13 punishment. See Doe v. Kelly, 878 F.3d 710, 720 (9th Cir. 2017) (quoting Bell, 441 U.S. at 539).

14 A punitive condition can be established “where the challenged restrictions serve an alternative,

15 non-punitive purpose but are nonetheless excessive in relation to the alternative purpose, or

16 are employed to achieve objectives that could be accomplished in so many alternative and less

17 harsh methods.” Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004) (internal quotation marks and

18 citations omitted).

19

Here, the relevant “restriction” is CoreCivic’s refusal to facilitate social distancing as

20 needed to prevent further spread of COVID-19. Given the current outbreak at CoreCivic,

21 without immediate action further spread of the virus is inevitable. Once the virus spreads

22 further, the consequences will be catastrophic. And even if Defendants’ current approach to

23 COVID-19 prevention could be described as serving a non-punitive purpose, their inadequate

24 approach to social distancing and hygienic measures are excessive in relation to that purpose.

25 By enacting these measures at CoreCivic, Defendants can avert these harms. The Pretrial Class

26 therefore is likely to establish that Defendants’ policies are unconstitutional punishment.

27

B. Without injunctive relief, Plaintiffs face irreparable injury and even death.

28

Plaintiffs face “a likelihood of irreparable injury.” All. for the Wild Rockies, 632 F.3d at

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Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 17 of 20

1 1135. “It is well established that the deprivation of constitutional rights ‘unquestionably

2 constitutes irreparable injury.’” Hernandez v. Sessions, 872 F.3d 976, 994 (9th Cir. 2017) (quoting

3 Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)). As shown above, Plaintiffs are likely to

4 prevail on their claims that Defendants have violated their constitutional rights.

5

Even more concerning are the actual risks COVID-19 poses to those at CoreCivic. The

6 risk of illness or death is not theoretical. At least 20 people so far already are infected at

7 CoreCivic, and expanded testing likely will reveal more. And without the requested relief,

8 Plaintiffs face intolerable risks of COVID-19 infection, injury, and even death. See Harris v. Bd.

9 of Supervisors, L.A. Cty., 366 F.3d 754, 766 (9th Cir. 2004) (finding “irreparable harm” from

10 “pain, infection,” and possible “death due to delayed treatment”).

11

C. The balance of the equities and the public interest favor Plaintiffs.

12

Similarly, both “the balance of equities” and “the public interest” favor granting

13 Plaintiffs injunctive relief. Aleman Gonzalez, 955 F.3d at 768 (quoting Winter, 555 U.S. at 20).

14 “[I]t is always in the public interest,” the Ninth Circuit has held, “to prevent the violation of a

15 party’s constitutional rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (citation

16 omitted). And as Plaintiffs establish above (at II.A), the conditions at CoreCivic combined with

17 the risks posed by the COVID-19 pandemic violate Plaintiffs’ constitutional rights. Thus, “by

18 establishing a likelihood that Defendants’ policy violates the U.S. Constitution, Plaintiffs have

19 also established that both the public interest and the balance of the equities favor [injunctive

20 relief].” Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014). Defendants, by

21 comparison, “cannot suffer harm from an injunction that merely ends an unlawful practice.”

22 Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013).

23

Also, granting Plaintiffs their requested relief will help mitigate the spread of COVID-

24 19 not only inside CoreCivic, but also through neighboring communities, the state, and across

25 the country. With the numerous individuals (including staff) who come and go from CoreCivic

26 each week, COVID-19 will continue to spread both inside and outside the walls of this facility.

27

Allowing Defendants to maintain these conditions will cause Plaintiffs irreparable harm,

28 and the balance of the equities and the public interest favor granting Plaintiffs their requested

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Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 18 of 20

1 relief. Injunctive relief is designed precisely for situations like this global pandemic.

2

D. Immediate injunctive relief in the form of a Rule 706 expert is a first step

toward remedying Defendants’ constitutional failings.

3

To date, several courts have agreed that the risks posed by COVID-19 require jails and

4

prisons around the country to implement changes far more significant than the minimal, and

5

even counterproductive, measures Defendants have adopted.

6

Plaintiffs seek immediate, expert assistance to implement constitutionally required social

7

distancing and hygiene practices at CoreCivic. Rule 706 experts can “assist the court in

8

evaluating contradictory evidence about an elusive disease of unknown cause.” Walker v. Am.

9

Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). And “under Ninth

10

Circuit law, district courts enjoy wide latitude to make these appointments.” Monolithic Power

11

Sys., Inc. v. O2 Micro Int’l Ltd., 558 F.3d 1341, 1348 (Fed. Cir. 2009). Other courts have appointed

12

experts in similar circumstances. See, e.g., Stickney v. List, 519 F. Supp. 617, 619 (D. Nev. 1981)

13

(ordering Rule 706 expert to determine “whether or not said institution has met its obligation

14

under the Eighth Amendment to the Constitution to furnish sentenced prisoners with adequate

15

food, clothing, shelter, sanitation, medical care and physical safety”); Karsjens v. Jesson, 6 F. Supp.

16

3d 958, 978 (D. Minn. 2014) (ordering Rule 706 expert to assess conditions at detention facility

17 and crafting remedies therefrom). And an expert similarly is needed here.5

18

III. CONCLUSION 19

For the reasons above, Plaintiffs respectfully request that the Court issue a temporary

20

restraining order and a preliminary injunction as described in the accompanying Motion.

21

22 5 Order, Wilson v. Williams, No. 20-3447 (6th Cir. May 4, 2020), ECF No. 23-2 (denying
23 government’s motion to stay district court’s preliminary injunction directing government to evaluate medically vulnerable prisoners’ “eligibility for transfer out of [the prison] by any means
24 within two weeks”); Order, Banks v. Booth, No. 1:20-cv-00849-CCK (D.D.C. Apr. 20, 2020), ECF No. 50 (granting in part TRO sought by putative class of jail detainees alleging their
25 conditions of confinement during COVID-19 pandemic violates their constitutional rights, and adopting recommendations of amici curiae experts who inspected jail to assess the risk of
26 COVID-19 infection); Order, Costa v. Bazron, No. 1:19-cv-03185-RDM (D.D.C. May 1, 2020), ECF No. 68 (appointing experts, as amici curiae, to inspect the conditions inside a hospital and
27 assess the risk of COVID-19 infection to people held through involuntary civil commitment).

28

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Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 19 of 20

1 Dated: May 8, 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

PERKINS COIE LLP By: /s/ Matthew R. Koerner
Jean-Jacques Cabou (#022835) Matthew R. Koerner (#035018) Margo R. Casselman (#034963) Benjamin C. Calleros (#034763) PERKINS COIE LLP 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788 Emma Andersson* eandersson@aclu.org Taylor Brown* tbrown@aclu.org Alejandro Ortiz* ortiza@aclu.org Chase Strangio* cstrangio@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Fl. New York, New York 10004 Telephone: 917-345-1742 Somil Trivedi* strivedi@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th St., NW Washington, DC 20012 Telephone: 202-715-0802 Jared G. Keenan (#027068) jkeenan@acluaz.org Christine K. Wee (#028535) CWee@acluaz.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF ARIZONA 3707 N. 7th Street, Suite 235 Phoenix, AZ 85014 Attorneys for Plaintiffs *Applications for pro hac vice forthcoming.
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Case 2:20-cv-00901-DJH--DMF Document 2 Filed 05/08/20 Page 20 of 20

1

CERTIFICATE OF SERVICE

2

I hereby certify that on May 8, 2020, I electronically transmitted the attached

3 documents to the Clerk’s Office using the CM/ECF System for filing and transmittal of same

4 to:

5

6

Kris Kline, Warden of the Central Arizona Florence Correctional Complex Kristopher.kline@corecivic.com

7

publicaffairs@corecivic.com

8

David Gonzales, U.S. Marshal for the District of Arizona

9

District of Arizona (D/AZ) U.S. Marshal: David Gonzales

10

Sandra Day O'Connor U.S. Courthouse

401 W. Washington St., SPC 64, Suite 270

11

Phoenix, AZ 85003-2159

12

David.Gonzales2@usdoj.gov

13

Donald W. Washington, Director of the U.S. Marshals Service

District of Arizona (D/AZ)

14

U.S. Marshal: Donald W. Washington

15

Sandra Day O'Connor U.S. Courthouse

401 W. Washington St., SPC 64, Suite 270

16

Phoenix, AZ 85003-2159

17

Michael Carvajal, Director of the Federal Bureau of Prisons

18

Two Renaissance Square 40 N. Central Avenue, Suite 1800

Phoenix, AZ 85004-4449

19

mcarvajal@bop.gov

20

21

By: Jennifer McNamara Perkins Coie, LLP

22

23

24

25

26

27

28

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Case 2:20-cv-00901-DJH--DMF Document 2-1 Filed 05/08/20 Page 1 of 2

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8 Maria Guadalupe Lucero-Gonzalez; Claudia

9

Romero-Lorenzo; Tracy Ann Peuplie; James Tyler Ciecierski; and Marvin Lee Enos; each

10

individually and on behalf of all others similarly situated,

11

Plaintiffs–Petitioners,

12 v.

13 Kris Kline, Warden of the Central Arizona

14

Florence Correctional Complex; David Gonzales, U.S. Marshal for the District of

15

Arizona; Donald W. Washington, Director of the U.S. Marshals Service; Michael Carvajal,

16

Director of the Federal Bureau of Prisons, in their official capacities,

17

Defendants–Respondents.

18

No. ____________________
[PROPOSED] ORDER GRANTING PLAINTIFFS– PETITIONERS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION

19

The Court having considered the briefs, supporting documents, and arguments of

20 counsel, the evidence filed in support of and opposition to Plaintiffs’ Motion for Temporary

21 Restraining Order and Preliminary Injunction and Memorandum in Support, and being fully

22 advised, the Court finds that Plaintiffs have met their burden of demonstrating a need for a

23 temporary restraining order and/or preliminary injunction in this case.

24

Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ Motion for Temporary

25 Restraining Order and Preliminary Injunction (Doc. __ ) is GRANTED as follows:

26 (1) The Court appoints a Rule 706 expert to lead a review of CoreCivic to determine

27

whether Defendants have implemented consistent social (or physical) distancing,

28

novel coronavirus testing procedures, and hygienic practices sufficient to reasonably

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Case 2:20-cv-00901-DJH--DMF Document 2-1 Filed 05/08/20 Page 2 of 2

1 2 3 (2) 4 5 (3) 6 7 8 9 10 11 (4) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

protect Plaintiffs and Class Members from contracting COVID-19 while in Defendants’ custody. The initial review by the appointed expert shall be completed and filed with this Court within 48 hours of the issuance of this Order. If the appointed expert concludes that Defendants have not implemented the social distancing, novel coronavirus testing procedures, and hygienic practices sufficient to reasonably protect Plaintiffs and Class Members from contracting COVID-19, then the expert shall submit to the Court, within 24 hours after filing the initial report, recommendations as to how such practices should be achieved and within what approximate timeline. Consistent with the recommendations of the appointed expert, Defendants shall, consistent with this and any subsequent Order of the Court: (a) begin implementing the expert’s recommendations immediately; (b) provide weekly updates to Plaintiffs’ counsel and this Court on their progress;
and (c) complete the implementation of the recommendations within the timeline
established by the expert, unless Defendants can show good cause as to why an extension is necessary.

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 Case 2:20-cv-00901-DJH--DMF Document 3 Filed 05/08/20 Page 1 of 15

1 Jean-Jacques Cabou (#022835) Matthew R. Koerner (#035018)
2 Margo R. Casselman (#034963) Benjamin C. Calleros (#034763)
3 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
4 Phoenix, Arizona 85012-2788 Telephone: 602-351-8000
5 Facsimile: 602-648-7000 JCabou@perkinscoie.com
6 MKoerner@perkinscoie.com MCasselman@perkinscoie.com
7 BCalleros@perkinscoie.com DocketPHX@perkinscoie.com
8 Attorneys for Petitioners-Plaintiffs
9 (additional counsel identified on signature page)
10

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF ARIZONA

13 Maria Guadalupe Lucero-Gonzalez; Claudia
14 Romero-Lorenzo; Tracy Ann Peuplie; James Tyler Ciecierski; and Marvin Lee Enos; each
15 individually and on behalf of all others similarly situated,
16
17 Plaintiffs–Petitioners,
18 v.
19 Kris Kline, Warden of the Central Arizona
20 Florence Correctional Complex; David Gonzales, U.S. Marshal for the District of
21 Arizona; Donald W. Washington, Director of the U.S. Marshals Service; Michael Carvajal,
22 Director of the Federal Bureau of Prisons, in their official capacities,
23 Defendants-Respondents.
24

No. ____________________
MOTION FOR CLASS CERTIFICATION AND
MEMORANDUM IN SUPPORT
(Oral Argument and Immediate Consideration Requested)

25

26

27

28

Case 2:20-cv-00901-DJH--DMF Document 3 Filed 05/08/20 Page 2 of 15

1

MOTION FOR CLASS CERTIFICATION

2

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Petitioners–Plaintiffs

3 (“Plaintiffs”) respectfully move the Court to certify the following proposed classes and

4 appoint Plaintiffs’ counsel as class counsel:

5

• Pretrial Class: All current and future persons held by Defendants Kline,

6

Gonzales, and Washington in pretrial detention at Central Arizona Florence Correctional Complex (“CoreCivic”)1;

7

• Post-Conviction Class: All current and future persons held by Defendants

8

Kline and Carvajal in post-conviction detention at CoreCivic.2

9 This Motion is based on the below Memorandum in Support; Plaintiffs’ Class-Action
10 Complaint for Injunctive and Declaratory Relief and Petition for Writs of Habeas Corpus
11 (“Complaint”) and its supporting documents and exhibits; Plaintiffs’ Motion for Temporary
12 Restraining Order and Preliminary Injunction and Memorandum in Support (“Motion for
13 TRO”) and its supporting documents and exhibits; the attached Declarations of Chase
14 Strangio, Victoria Lopez, and Jean-Jacques Cabou; and other evidence and arguments as
15 may be presented. For the reasons therein, Plaintiffs respectfully request that this Court
16 certify the proposed classes, including provisional certification if necessary, and appoint
17 Plaintiffs’ counsel as class counsel.
18

19

20

21

22

23

24

25

26 1 Plaintiffs Claudia Romero-Lorenzo, Tracy Ann Peuplie, James Tyler Ciecierski,
27 and Marvin Lee Enos are members of, and seek to represent, the Pretrial Class. 2 Plaintiff Maria Guadalupe Lucero-Gonzalez is a member of, and seeks to represent,
28 the Post-Conviction Class.

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Case 2:20-cv-00901-DJH--DMF Document 3 Filed 05/08/20 Page 3 of 15

1

MEMORANDUM IN SUPPORT

2

This class action challenges Defendants’ unconstitutional treatment of all detainees

3 in federal custody at CoreCivic in the midst of the crisis surrounding the 2019 novel

4 coronavirus that causes coronavirus disease 2019 (“COVID-19”). Both of Plaintiffs’

5 proposed classes, which collectively consist of hundreds of individuals, satisfy the

6 requirements of Federal Rule of Civil Procedure (“Rule”) 23. Every class member faces a

7 substantial and imminent risk of bodily harm as a result of their detention at CoreCivic,

8 where Defendants have adopted facility-wide policies that utterly fail to protect class

9 members from a rapidly escalating global pandemic. All class members share a core

10 common factual issue and a core common legal issue: what actions or inactions are

11 Defendants taking at CoreCivic to protect detainees from COVID-19, and do those actions

12 and inactions fall below minimum constitutional standards? Plaintiffs propose two separate

13 classes because of a sole legal issue that is distinct for the two classes: whether their claims

14 are analyzed under the framework of the Fifth Amendment or the Eighth Amendment.

15 These frameworks largely overlap, and in all other respects, the two classes share every

16 material issue in common. The named Plaintiffs respectfully ask this Court to appoint them

17 and their counsel to represent the cohesive and urgent interests of both classes.

18 I. BACKGROUND

19

Plaintiffs respectfully refer the Court to the facts as stated in detail in their

20 Complaint, Motion for TRO, and respective supporting documents.

21 II. 22

LAW AND DISCUSSION A party “whose suit meets the specified criteria” of Rule 23(a) and Rule 23(b) has a

23 “categorical” right “to pursue his claim as a class action.” Shady Grove Orthopedic Assocs.,

24 P.A. v. Allstate Ins., Co., 559 U.S. 393, 398 (2010). “Under Rule 23(a), a party seeking

25 certification of a class or subclass must satisfy four requirements: (1) numerosity; (2)

26 commonality; (3) typicality; and (4) adequacy of representation.” Parsons v. Ryan, 754 F.3d

27 657, 674 (9th Cir. 2014). The party’s “proposed class or subclass must also satisfy the

28 requirements of one of the sub-sections of Rule 23(b), which defines three different types

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Case 2:20-cv-00901-DJH--DMF Document 3 Filed 05/08/20 Page 4 of 15

1 of classes.” Id. (internal quotation marks and citation omitted). Relevant here, Rule 23(b)(2)

2 requires that “the party opposing the class has acted or refused to act on grounds that apply

3 generally to the class, so that final injunctive relief or corresponding declaratory relief is

4 appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).

5

Plaintiffs’ proposed classes satisfy Rule 23(a) and Rule 23(b)(2). Plaintiffs are

6 therefore entitled to pursue their claims as a class action.3

7

A. The Proposed Classes Satisfy Rule 23(a)(1)-(4).

8

1. Plaintiffs’ Proposed Classes Satisfy Numerosity.

9

Each of Plaintiffs’ proposed classes—which together contain hundreds of

10 individuals, and which seek only class-wide injunctive relief—satisfies numerosity.

11 Numerosity requires that “the class is so numerous that joinder of all members is

12 impracticable.” Fed. R. Civ. P. 23(a)(1). To be impracticable, joinder must be difficult or

13 inconvenient but need not be impossible. See Harris v. Palm Springs Alpine Estates, Inc.,

14 329 F.2d 909, 913-14 (9th Cir. 1964) (noting that “impracticability does not mean

15 impossibility, but only the difficulty or inconvenience of joining all members of the class”)

16 (internal quotation marks and citation omitted). “In addition to class size, courts consider

17 other indicia of impracticability, such as . . . the size of individual claims, the financial

18 resources of class members, and the ability of claimants to institute individual suits.” Torres

19 v. Goddard, 314 F.R.D. 644, 654 (D. Ariz. 2010); see also Jordan v. County of Los Angeles,

20 669 F.2d 1311, 1319 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982) (noting

21 that when a class is not large in numbers, “other factors such as the geographical diversity

22 of class members, the ability of individual claimants to institute separate suits, and whether

23 injunctive or declaratory relief is sought, should be considered in determining

24 impracticability of joinder” (citing Newberg on Class Actions § 1105 (1977))).

25

Generally, courts find numerosity satisfied “when a class includes at least 40

26 3 Alternatively, Plaintiffs’ proposed classes also satisfy Rule 23(b)(1) because
27 requiring hundreds of individual class members to prosecute separate actions on the same claims would create a significant risk of inconsistent or varying adjudications that would
28 establish incompatible standards of conduct for Defendants.

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Case 2:20-cv-00901-DJH--DMF Document 3 Filed 05/08/20 Page 5 of 15

1 members.” Rannis v. Recchia, 380 F. App’x 646, 651 (9th Cir. 2010). Where the exact

2 number of class members is unknown, the court may find that numerosity is met if “general

3 knowledge and common sense indicate that joinder would be impracticable.” Knapper v.

4 Cox Commc’ns, Inc., 329 F.R.D. 238, 241 (D. Ariz. 2019).

5

Here, the exact numbers and identities of members in each class are unknown—

6 because this information is exclusively within Defendants’ control. However, it is

7 exceedingly likely that both classes consist of far more than the 40-member threshold.

8 CoreCivic is designed to house over 4,000 inmates.4 And there are “hundreds” of

9 individuals in the combined Pretrial and Post-Conviction Classes who have open cases with

10 the Office of the Federal Public Defender for the District of Arizona (“FPD”) alone.

11 [Compl. Ex. 1, ¶ 3 (Declaration of Christina M. Woehr (“Woehr Decl.”))] Moreover, the

12 number of individuals in the Post-Conviction Class is currently higher than normal because

13 of a decrease in transfers due to the pandemic. [Id.]

14

Finally, even setting aside the numbers, other factors make joinder impracticable in

15 this case. First, because of the extremely time-sensitive nature of the relief requested in this

16 case, joining all class members is impracticable. COVID-19 spreads rapidly, and multiple

17 cases have already been confirmed at CoreCivic. [See generally Compl. ¶¶ 28–61] There is

18 simply no time to identify every person in the facility and join them to this action. Second,

19 both classes are inherently transitory and include unidentifiable future members. Third, all

20

4 See CoreCivic-Central Arizona Florence Correctional Complex-East PREA Audit

21 Report

(July

14,

2017),

https://www.corecivic.com/hubfs/_files/PREA/Facilities/CoreCivic-

22 Central%20Arizona%20Florence%20Correctional%20Complex-

East%20%20final%20PREA%20Report.pdf (noting that CoreCivic East is designed for a

23 capacity of 1,824), and CoreCivic-Central Arizona Florence Correctional Complex-West

PREA

Audit

Report

(July

11,

2017),

24 https://www.corecivic.com/hubfs/_files/PREA/Facilities/CoreCivic-

Central%20Arizona%20Florence%20Correctional%20Complex-

25 West%20%20final%20PREA%20Report.pdf (noting that CoreCivic West is designed for a

capacity of 2,555).

26

See also About 400 Inmates Quarantined at CoreCivic Prison in Florence, After 13

Test Positive for COVID-19, AZ CENTRAL (May 8, 2020 7:00 a.m.),

27 https://www.azcentral.com/story/news/local/arizona-health/2020/05/08/coronavirus-cases-

multiple-inmates-test-positive-corecivic-prison-covid-19/3093348001/ (noting that “most

28 of the 4,000 inmates at the [CoreCivic] facility are in federal custody, awaiting trial”).

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Case 2:20-cv-00901-DJH--DMF Document 3 Filed 05/08/20 Page 6 of 15

1 class members are incarcerated, and many are indigent, rendering their ability to seek

2 counsel and file individually limited, at best. Any limited potential for individuals to seek

3 counsel is further complicated by recent measures implemented in light of COVID-19. For

4 example, in-person legal visits are no longer possible, and time slots for legal calls with

5 incarcerated clients at CoreCivic are backlogged. [Woehr Decl. ¶¶ 12, 14] Quarantined

6 detainees—who may be most in need of access to legal assistance—may be barred from

7 taking legal calls entirely. [Id.] Lastly, where, as here, the relief sought is “only injunctive

8 or declaratory,” the numerosity requirement is somewhat relaxed. See Sueoka v. United

9 States, 101 F. App’x 649, 653 (9th Cir. 2004).

10

Because Plaintiffs reliably estimate that there are hundreds of individuals in their

11 proposed classes, and because joinder is nearly impossible under the circumstances,

12 numerosity is satisfied for the Pretrial Class and the Post-Conviction Class.

13

2. Plaintiffs’ Proposed Classes Satisfy Commonality.

14

Commonality requires plaintiffs to show that “there are questions of law or fact

15 common to the class.” Fed. R. Civ. P. 23(a)(2). “A clear line of precedent . . . firmly

16 establishes that when inmates provide sufficient evidence of systemic and centralized

17 policies or practices in a prison system that allegedly expose all inmates in that system to a

18 substantial risk of serious future harm, Rule 23(a)(2) is satisfied.” Parsons, 754 F.3d at 684.

19 That is precisely the case here. Defendants’ policies and practices fail to protect the class

20 members from COVID-19 exposure and infection. These failings expose all inmates at

21 CoreCivic to a substantial risk of serious, immediate harm.

22

Commonality requires plaintiffs to assert claims that “depend upon a common

23 contention . . . capable of classwide resolution—which means that determination of its truth

24 or falsity will resolve an issue that is central to the validity of each one of the claims in one

25 stroke.” Dukes v. Wal-Mart Stores, Inc., 564 U.S. 338, 350 (2011). Under the Dukes

26 standard, “numerous courts have concluded that the commonality requirement can be

27 satisfied by proof of the existence of systemic policies and practices that allegedly expose

28 inmates to a substantial risk of harm.” Parsons, 754 F.3d at 681 (collecting cases); see also

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Case 2:20-cv-00901-DJH--DMF Document 3 Filed 05/08/20 Page 7 of 15

1 Unknown Parties v. Johnson, 163 F. Supp. 3d 630, 635 (D. Ariz. 2016) (“In the civil rights

2 context, commonality is satisfied ‘where the lawsuit challenges a system-wide practice or

3 policy that affects all of the putative class members.’” (quoting Armstrong v. Davis, 275

4 F.3d 849, 868 (9th Cir. 2001))). Moreover, commonality “does not . . . mean that every

5 question of law or fact must be common to the class.” Abdullah v. U.S. Sec. Assocs., Inc.,

6 731 F.3d 952, 957 (9th Cir. 2013). In fact, “even a single common question” may satisfy

7 Rule 23(a)(2). Parsons, 754 F.3d at 675.

8

All members of the proposed Pretrial and Post-Conviction Classes share a common

9 core of facts: all are (or will be) confined at CoreCivic. And all are subject to the same

10 practices: Defendants are unwilling to implement facility-wide measures regarding social

11 distancing and other hygienic practices consistent with the CDC’s and other public health

12 officials’ guidance on preventing the spread of COVID-19 at CoreCivic and protecting

13 detained persons against serious illness or death. See Unknown Parties, 163 F. Supp. 3d at

14 640 (holding that “claims involving overall conditions that affect the rights of all putative

15 class members are sufficient to satisfy commonality” and that “[w]hether such conditions

16 result from Defendants’ stated policies or from their alleged failure to create or adhere to

17 those policies does not change the commonality analysis”); cf. Parsons, 754 F.3d at 678

18 (finding commonality where “all members of the putative class and subclass have in

19 common . . . their alleged exposure, as a result of specified statewide ADC policies and

20 practices . . . , to a substantial risk of serious future harm to which the defendants are

21 allegedly deliberately indifferent”). Thus, the question of law and fact shared by all class

22 members is whether Defendants’ policies subject them to a heightened risk of serious illness

23 and death in violation of their Fifth Amendment due process rights and/or Eighth

24 Amendment rights against cruel and unusual punishment. The commonality requirement is

25 satisfied here for both classes—consisting of individuals detained at the same facility under

26 the same conditions with respect to COVID-19.

27

Federal courts in this Circuit have provisionally certified classes of persons in

28 immigration detention in constitutional challenges arising out of similar detention

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Case 2:20-cv-00901-DJH--DMF Document 3 Filed 05/08/20 Page 8 of 15

1 conditions in the face of the COVID-19 pandemic, where petitioners are seeking similar

2 relief as Plaintiffs here. See Provisional Class Certification Order, Hernandez Roman v.

3 Wolf, No. 20-00768 TJH (PVCx) (C.D. Cal. Apr. 23, 2020), ECF No. 52. There, the court

4 reasoned that “[t]he specific reason why each Petitioner and putative class member is being

5 detained is immaterial.” Id. at 4. “The issue before the Court is whether the manner of their

6 detention—the conditions of their confinement—violates their Fifth Amendment

7 substantive due process rights.” Id. So too here.

8

Similarly, in Fraihat v. U.S. Immigration and Customs Enforcement, the court

9 observed that “[d]espite Plaintiffs’ admitted differences, each putative class member finds

10 herself in similar situation.” -- F. Supp. 3d --, 2020 WL 1932570, at *18 (C.D. Cal. Apr.

11 20, 2020). “Indeed, the variety of facility COVID-19 countermeasures tends to support

12 Plaintiffs’ contention that ICE has failed to institute the well-ordered, mandatory relief

13 effort to which they claim entitlement.” Id. Acknowledging the varying problems with

14 ICE’s COVID-19 countermeasures from facility to facility and the different reasons

15 COVID-19 might be especially deadly from person to person, the court stressed that

16 “[y]et[,] across all facilities and individuals, the question remains: is ICE required to adopt

17 a global response, and is that response adequate?” Id. The court concluded, “[a]s a result,

18 the factual differences are not the sort that likely affect entitlement to relief or that are likely

19 to change the outcome of the legal analysis.” Id.

20

As evident from these recent cases, whether Defendants’ inadequate policies in

21 response to COVID-19 violate Plaintiffs’ constitutional rights depends “upon a common

22 contention . . . capable of classwide resolution.” Dukes, 564 U.S. at 350. And the

23 “determination of its truth or falsity will resolve an issue that is central to the validity of

24 each one of the claims in one stroke.” Id. The commonality requirement therefore is

25 satisfied here.

26

3. Plaintiffs’ Proposed Classes Satisfy Typicality.

27

The named Plaintiffs in this case each assert claims that are typical of their respective

28 proposed classes. Plaintiffs Claudia Romero-Lorenzo, Tracy Ann Peuplie, James Tyler

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Case 2:20-cv-00901-DJH--DMF Document 3 Filed 05/08/20 Page 9 of 15

1 Ciecierski, and Marvin Lee Enos assert claims under the Fifth Amendment on behalf of the

2 Pretrial Class, and Plaintiff Maria Guadalupe Lucero-Gonzalez asserts claims under the

3 Eighth Amendment on behalf of the Post-Conviction Class.

4

Typicality exists if “the claims or defenses of the representative parties are typical

5 of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “[T]he typicality

6 requirement is permissive and requires only that the representative’s claims are reasonably

7 coextensive with those of absent class members; they need not be substantially identical.”

8 Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th Cir. 2010) (internal quotation marks and

9 citation omitted). “The test of typicality is ‘whether other members [of the class] have the

10 same or similar injury, whether the action is based on conduct which is not unique to the

11 named plaintiffs, and whether other class members have been injured by the same course

12 of conduct.’” Parsons, 754 F.3d at 685 (quoting Hanon v. Dataproducts Corp., 976 F.2d

13 497, 508 (9th Cir. 1992)). Typicality is “satisfied when each class member’s claim arises

14 from the same course of events, and each class member makes similar legal arguments to

15 prove the defendant’s liability.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001)

16 (citation omitted). Variations among individual plaintiffs’ circumstances, or the extent of

17 their injuries, will not defeat typicality as long as the named plaintiffs’ injuries arise “from

18 the same event or practice or course of conduct that [gives] rise to the claims of other class

19 members,” and the named plaintiffs’ claims are “based on the same legal theory” as the

20 class’s claims. Ramirez v. TransUnion LLC, 951 F.3d 1008, 1033 (9th Cir. 2020) (citations

21 omitted).

22

Here, the proposed classes meet the typicality requirement because the named

23 Plaintiffs and proposed class members are detained in the same facility under the same

24 overall conditions. Their claims all arise from the same failure to adequately implement

25 social distancing and other appropriate health and safety measures in response to COVID-

26 19. [See, e.g., Compl. ¶¶ 80–103] They bring the exact same claims, based on the exact

27 same legal theories—the Fifth Amendment for the Pretrial Class and the Eighth

28 Amendment for the Post-Conviction Class. And they all suffer the same or similar risk of

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Case 2:20-cv-00901-DJH--DMF Document 3 Filed 05/08/20 Page 10 of 15

1 imminent harm: the significant yet avoidable risk of serious illness and death from

2 contracting COVID-19. See Unknown Parties, 163 F. Supp. 3d at 641 (finding typicality

3 satisfied where the named plaintiffs suffered the same harm because they “experienced the

4 same overall conditions of confinement”).

5

4. Plaintiffs’ Proposed Classes Satisfy Adequacy.

6

The named Plaintiffs and their counsel will adequately represent the interests of both

7 classes, which are aligned and intertwined. Adequacy is satisfied when “the representative

8 parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4).

9 “Whether the class representatives satisfy the adequacy requirement depends on ‘the

10 qualifications of counsel for the representatives, an absence of antagonism, a sharing of

11 interests between representatives and absentees, and the unlikelihood that the suit is

12 collusive.’” Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998) (quoting Crawford v.

13 Honig, 37 F.3d 485, 487 (9th Cir. 1994)). The adequacy requirement “tend[s] to merge with

14 the commonality and typicality criteria of Rule 23(a).” Amchem Prods., Inc. v. Windsor,

15 521 U.S. 591, 626 n.20 (1997) (alteration in original) (citation and quotation marks

16 omitted). The adequacy requirement is met here.

17

Class counsel are “qualified” when they can establish their experience in previous

18 class actions and cases involving the same area of law. Lynch v. Rank, 604 F. Supp. 30, 37

19 (N.D. Cal. 1984), aff’d, 747 F.2d 528 (9th Cir. 1984). Here, class counsel are attorneys from

20 the American Civil Liberties Union Foundation (“ACLU”), the ACLU of Arizona, and

21 Perkins Coie LLP who, collectively, have extensive relevant experience to litigate this

22 matter to completion. [See Declaration of Chase Strangio, attached as Ex. 1; Declaration of

23 Victoria Lopez, attached as Ex. 2; Declaration of Jean-Jacques Cabou, attached as Ex. 3]

24 Collectively, these attorneys have participated as class counsel in numerous civil-rights

25 related cases before this Court and others, including in other cases related to COVID-19 in

26 the detention context. [Id.] Counsel know of no conflicts among proposed class members

27 or between counsel and proposed class members, and counsel will vigorously represent the

28 proposed classes.

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Case 2:20-cv-00901-DJH--DMF Document 3 Filed 05/08/20 Page 11 of 15

1

The named Plaintiffs have the requisite personal interest in the outcome of this case

2 and will fairly and adequately protect the interests of the proposed classes. The named

3 Plaintiffs and other class members have the same injury and seek the same relief—namely,

4 declaratory and injunctive relief requiring Defendants to protect all class member. See

5 Complaint; Unknown Parties, 163 F. Supp. 3d at 642 (holding adequacy satisfied despite

6 “a lack of individual medical ailments while in [government] custody” among the named

7 plaintiffs, where the named plaintiffs generally “suffered harms typical of the class” under

8 the conditions of confinement).

9

Named Plaintiffs’ aim is to secure relief that will protect both themselves and all

10 members of the classes they represent from Defendants’ unconstitutional policies and

11 practices and to enjoin the Defendants from further violations of class members’ rights.

12 This case therefore satisfies Rule 23(a)(4)’s adequacy requirement.

13

B. The Proposed Classes Meet the Requirements of Rule 23(b)(2).

14

Plaintiffs’ proposed classes are prototypical Rule 23(b)(2) classes. “Rule 23(b)(2)

15 permits class actions for declaratory or injunctive relief where ‘the party opposing the class

16 has acted or refused to act on grounds generally applicable to the class.’” Amchem, 521 U.S.

17 at 614 (quoting Fed. R. Civ. P. 23(b)(2)). “[T]he primary role of this provision has always

18 been the certification of civil rights class actions.” Parsons, 754 F.3d at 686. “Civil rights

19 cases against parties charged with unlawful, class-based discrimination are prime examples

20 [of Rule 23(b)(2) actions].” Amchem, 521 U.S. at 614; see also Walters, 145 F.3d at 1047

21 (Rule 23(b)(2) “was adopted in order to permit the prosecution of civil rights actions.”).

22 Thus, “courts have repeatedly invoked [Rule 23(b)(2)] to certify classes of inmates seeking

23 declaratory and injunctive relief for alleged widespread Eighth Amendment violations in

24 prison systems.” Parsons, 754 F.3d at 686; cf. Carrillo v. Schneider Logistics, Inc., No. CV

25 11-8557 CAS (DTBx), 2012 WL 556309, at *9 (C.D. Cal. Jan. 31, 2012), aff’d, 501 F.

26 App’x 713 (9th Cir. 2012) (noting that courts “routinely grant provisional class certification

27 for purposes of entering injunctive relief”).

28

In the Ninth Circuit, “[i]t is sufficient to meet the requirements of Rule 23(b)(2)

-10-

Case 2:20-cv-00901-DJH--DMF Document 3 Filed 05/08/20 Page 12 of 15

1 [when] class members complain of a pattern or practice that is generally applicable to the

2 class as a whole.” Rodriguez, 591 F.3d at 1125-26 (internal quotation marks and citation

3 omitted) (finding certification under Rule 23(b)(2) proper where “proposed members of the

4 class each challenge Respondents’ practice of prolonged detention of detainees without

5 providing a bond hearing and seek as relief a bond hearing with the burden placed on the

6 government”). Thus, the critical inquiry is “whether class members seek uniform relief from

7 a practice applicable to all of them.” Id. at 1125.

8

That is the case here. First, Defendants are acting on grounds that are generally

9 applicable to the proposed classes because Defendants have subjected all proposed class

10 members to the same policies or practices that expose Plaintiffs to an unreasonable risk of

11 serious harm in violation of the Due Process Clause or the Eighth Amendment. Second, the

12 injunctive relief requested by Plaintiffs is appropriate for each class as a whole. Each class

13 requests uniform relief in the form of certain declarations and an injunction. [See Compl.

14 Prayer for Relief] In order to comply with the requested injunction, Defendants would have

15 to implement facility-wide changes applicable to, and for the benefit of, all class members.

16 This requested relief—“a single injunction [and] declaratory judgment”—“would provide

17 relief to each” class member, without any need for “individualized” determinations by the

18 Court. Dukes, 564 U.S. at 360–61. Thus, Rule 23(b)(2) is satisfied.5

19

C. Provisional Certification Is Urgently Needed for the Plaintiffs Due to

the Imminent Risks Posed by COVID-19.

20

Because COVID-19 has already begun spreading at CoreCivic, placing all class

21

members at risk, urgent action is needed on a class-wide basis. This Court therefore should

22

grant provisional certification and issue a temporary restraining order, preliminary

23

injunction, and/or writs of habeas corpus directed at Defendants to protect class members

24

from the imminent threat of serious illness or death.

25

26 5 Alternatively, Plaintiffs’ proposed classes also satisfy Rule 23(b)(1) because
27 requiring hundreds of individual class members to prosecute separate actions on the same claims would create a significant risk of inconsistent or varying adjudications that would
28 establish incompatible standards of conduct for Defendants.

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Case 2:20-cv-00901-DJH--DMF Document 3 Filed 05/08/20 Page 13 of 15

1

“Courts in the Ninth Circuit ‘routinely grant provisional class certification for

2 purposes of entering injunctive relief’” under Rule 23(b)(2) when the plaintiffs establish

3 that the four prerequisites in Rule 23(a) are also met. Fraihat, -- F. Supp. 3d --, 2020 WL

4 1932570, at *15 (citation omitted). Indeed, in two recent COVID-19-related cases, the U.S.

5 District Court for the Central District of California provisionally certified classes of persons

6 in immigration detention facilities seeking similar relief as Plaintiffs here. See id. at *29;

7 Provisional Class Certification Order, Hernandez Roman v. Wolf, No. 20-00768 TJH

8 (PVCx), (C.D. Cal. Apr. 23, 2020), ECF No. 52; see also Meyer v. Portfolio Recovery

9 Assocs., LLC, 707 F.3d 1036, 1041 (9th Cir. 2012) (finding district court did not abuse its

10 discretion by provisionally certifying class for purpose of entering preliminary injunction).

11

Provisional certification—in addition to immediate injunctive relief—is urgently

12 needed here to remedy the ongoing constitutional violations at CoreCivic and protect

13 Plaintiffs, class members, and the local community from the spread of COVID-19. With

14 multiple confirmed cases now at CoreCivic, and staff and others entering the facility every

15 day and potentially taking the virus back to the community every night, there is no time to

16 spare.

17 III. CONCLUSION

18

For the reasons stated in this Motion, Plaintiffs respectfully request that the Court

19 certify their proposed Pretrial Class and Post-Conviction Class, including provisional

20 certification, and appoint Plaintiffs’ counsel as counsel for both classes pursuant to Rule

21 23(g).

22

23

24

25

26

27

28

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Case 2:20-cv-00901-DJH--DMF Document 3 Filed 05/08/20 Page 14 of 15

1 Dated: May 8, 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

PERKINS COIE LLP
By: /s/ Matthew Koerner Jean-Jacques Cabou (#022835) Matthew R. Koerner (#035018) Margo R. Casselman (#034963) Benjamin C. Calleros (#034763) PERKINS COIE LLP 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788
Emma Andersson* eandersson@aclu.org Taylor Brown* tbrown@aclu.org Alejandro Ortiz* ortiza@aclu.org Chase Strangio* cstrangio@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Fl. New York, New York 10004 Telephone: 917-345-1742
Somil Trivedi* strivedi@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th St., NW Washington, DC 20012 Telephone: 202-715-0802
Jared G. Keenan (#027068) jkeenan@acluaz.org Christine K. Wee (#028535) CWee@acluaz.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF ARIZONA 3707 N. 7th Street, Suite 235 Phoenix, AZ 85014
Attorneys for Petitioners–Plaintiffs *Applications for pro hac vice forthcoming.
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Case 2:20-cv-00901-DJH--DMF Document 3 Filed 05/08/20 Page 15 of 15

1

CERTIFICATE OF SERVICE

2

I hereby certify that on May 8, 2020, I electronically transmitted the attached

3 documents to the Clerk’s Office using the CM/ECF System for filing and transmittal of

4 same to:

5

6

Kris Kline, Warden of the Central Arizona Florence Correctional Complex Kristopher.kline@corecivic.com

7

publicaffairs@corecivic.com

8

David Gonzales, U.S. Marshal for the District of Arizona

9

District of Arizona (D/AZ)

U.S. Marshal: David Gonzales

10

Sandra Day O'Connor U.S. Courthouse

11

401 W. Washington St., SPC 64, Suite 270 Phoenix, AZ 85003-2159

12

David.Gonzales2@usdoj.gov

13

Donald W. Washington, Director of the U.S. Marshals Service

14

District of Arizona (D/AZ)

U.S. Marshal: Donald W. Washington

15

Sandra Day O'Connor U.S. Courthouse

401 W. Washington St., SPC 64, Suite 270

16

Phoenix, AZ 85003-2159

17

Michael Carvajal, Director of the Federal Bureau of Prisons

18

Two Renaissance Square 40 N. Central Avenue, Suite 1800

19

Phoenix, AZ 85004-4449

mcarvajal@bop.gov

20

21 By: Jennifer McNamara Perkins Coie, LLP
22

23

24

25

26

27

28

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Case 2:20-cv-00901-DJH--DMF Document 3-1 Filed 05/08/20 Page 1 of 1

INDEX OF EXHIBITS TO MOTION FOR CLASS CERTIFICATION

Exhibit 1 2 3

Document Declaration of Chase Strangio (May 8, 2020) Declaration of Victoria Lopez (May 8, 2020) Declaration of Jean-Jacques Cabou (May 8, 2020)

148162488.1

Case 2:20-cv-00901-DJH--DMF Document 3-2 Filed 05/08/20 Page 1 of 5
EXHIBIT 1

Case 2:20-cv-00901-DJH--DMF Document 3-2 Filed 05/08/20 Page 2 of 5

1

DECLARATION OF CHASE STRANGIO

2

I, Chase Strangio, declare as follows:

3

1. I am over 18 years of age and competent to make this declaration. I, along

4 with my colleagues and co-counsel, Somil Trivedi, Emma Andersson, Alejandro Ortiz, and

5 Taylor Brown, seek to be appointed class counsel for the Pretrial Class and the Post-

6 Conviction Class, as defined in the above-captioned litigation.

7

2. I am Deputy Director for Transgender Justice for the LGBT & HIV Project at

8 the American Civil Liberties Union Foundation (“ACLU”). In this capacity, I litigate civil

9 rights and civil liberties cases at trial and appellate levels, in state and federal court. I

10 specialize in representing people who are living with HIV or who are lesbian, gay, bisexual,

11 or transgender (LGBT). I have appeared before the U.S. Supreme Court as counsel in R.G.

12 & G.R. Harris Funeral Homes v. EEOC, Gloucester County School Board v. G.G., and

13 Obergefell v. Hodges. I have also appeared before the Sixth Circuit, the Fourth Circuit, and

14 the Seventh Circuit. I was previously an Equal Justice Works Fellow and Director of

15 Prisoner Justice at the Sylvia Rivera Law Project, where I litigated at federal, state, and

16 administrative levels primarily on behalf of incarcerated people in civil rights cases.

17

3. I am a 2010 graduate of Northeastern University School of Law, where I was

18 a Public Interest Law Scholar. I was admitted to practice law in New York in 2011. I

19 previously served on the Corrections Committee of the New York City Bar Association and

20 currently serve on a New York City Council appointed task force overseeing conditions in

21 custody for transgender individuals in New York City jails. I have given dozens of invited

22 talks at schools and conferences such as Harvard School of Law, NYU School of Law,

23 Washington University School of Law in St. Louis, UCLA School of Law, Prisoners’

24 Advocates Conference, Lavender Law and the American Bar Association Annual Meeting.

25

4. My co-counsel Somil Trivedi is a Senior Staff Attorney at the ACLU’s

26 Criminal Law Reform Project. In this capacity, he litigates civil rights and civil liberties

27 cases at the trial and appellate levels in state and federal courts, including the U.S. Supreme

28 Court. He specializes in cases against jailers, prosecutors, and other law enforcement

-1-

Case 2:20-cv-00901-DJH--DMF Document 3-2 Filed 05/08/20 Page 3 of 5

1 officials and is currently lead or co-counsel on several cases similar to this one, seeking

2 redress for detainees in light of the grave risk of COVID-19. He was previously a Trial

3 Attorney at the United States Department of Justice, a white-collar criminal and regulatory

4 attorney at an international law firm, and a law clerk at the Center for Constitutional Rights.

5

5. Mr. Trivedi is a 2009 graduate of Boston University School of Law and was

6 admitted to practice in New York in 2010. He is an adjunct professor at George Mason Law

7 School, where he teaches Public Interest Litigation, and has guest lectured at the law schools

8 at Columbia, Georgetown, and Howard Universities. This year he will publish academic

9 papers on criminal law reform in the Stanford Review of Civil Rights and Civil Liberties

10 and the Boston University Law Review. He is also on the board of the Innocence Project of

11 Texas and has previously held advisory board positions to the Center for Constitutional

12 Rights and Brooklyn Defender Services.

13

6. My co-counsel Emma Andersson is a Senior Staff Attorney in the Criminal

14 Law Reform Project at the ACLU. In this capacity, she litigates civil rights and civil liberties

15 cases at trial and appellate levels, in state and federal court. She specializes in litigation

16 relating to the criminal legal system including police practices, indigent defense, and

17 sentencing. Ms. Andersson is appointed class counsel in Davis v. Nevada, No. 170C02271B

18 (1st Jud. Dist. Nev. June 14, 2019) (order certifying class of indigent defendants).

19

7. Ms. Andersson is a 2008 graduate of Yale Law School. She is admitted to

20 practice in California, the United States Court of Appeals for the Ninth Circuit, and the

21 United States Supreme Court. She was previously a law clerk to the Honorable Richard

22 Paez of the United States Court of Appeals for the Ninth Circuit.

23

8. My co-counsel Alejandro Ortiz is a Senior Staff Attorney with the Racial

24 Justice Program at the ACLU. In this capacity, he litigates civil rights cases at trial and

25 appellate levels in federal court. He specializes in representing workers and people of color.

26 He has appeared in cases before the First Circuit Court of Appeals, U.S. district courts in

27 New York, California, Virginia, Minnesota, and Puerto Rico and a state court in Colorado.

28 He was previously a law clerk for three federal judges and a Senior Field Attorney with the

-2-

Case 2:20-cv-00901-DJH--DMF Document 3-2 Filed 05/08/20 Page 4 of 5

1 National Labor Relations Board (NLRB), where he co-led the longest trial in its history,

2 including over 90 days of witness testimony, in McDonald’s USA, LLC, No. 02-CA-

3 093893, et al., 368 N.L.R.B. 134 (2019).

4

9. Mr. Ortiz is a 2008 graduate of the University of Colorado Law School,

5 where, among other activities, he represented indigent clients in a criminal defense clinic.

6 He was admitted to practice in Colorado in 2009 and in New York in 2019.

7

10. My co-counsel Taylor Brown is a Staff Attorney with the LGBT & HIV

8 Project at the ACLU. In this capacity, Ms. Brown advocates for the civil rights and freedoms

9 of LGBT people and people living with HIV. Ms. Brown has appeared as counsel in the

10 Eleventh Circuit in Adams v. the School Board of St. John’s County, Florida. Ms. Brown

11 has also appeared as counsel in federal district courts in Alaska, Indiana, and North

12 Carolina, litigating cases involving sex discrimination against transgender people in health

13 care and public education. Previously, Ms. Brown was an attorney with Lambda Legal

14 Defense and Education Fund and was also the Tyron Garner Memorial Law Fellow at

15 Lambda Legal, conducting civil rights litigation and advocacy on behalf of black and brown

16 LGBT people and black and brown people living with HIV.

17

11. Ms. Brown graduated from the Benjamin N. Cardozo School of Law in 2017,

18 where she was a Nathaniel E. Gates Scholar. She was admitted to the New York Bar in

19 2019. Ms. Brown has given numerous speeches, presentations, and CLE courses on LGBT

20 and HIV legal issues at leading business, law firms, law schools, conferences, and

21 government agencies. Ms. Brown is also a board member of the National Trans Bar

22 Association.

23

12. Founded in 1920, the American Civil Liberties Union Foundation is a non-

24 partisan 26 U.S.C. § 501(c)(3) organization that provides legal representation free of charge

25 to individuals and organizations in civil rights and civil liberties cases and educates the

26 public about civil rights and civil liberties issues across the country. With more than 1.5

27 million members and nearly 300 staff attorneys, the ACLU is the nation’s largest public

28 interest law firm, with a 50-state network of staffed, autonomous affiliate offices. The

-3-

Case 2:20-cv-00901-DJH--DMF Document 3-2 Filed 05/08/20 Page 5 of 5

1 ACLU appears before the United States Supreme Court more than any other organization

2 except the U.S. Department of Justice. About 100 ACLU staff attorneys collaborate with

3 about 2,000 volunteer attorneys in handling close to 2,000 cases annually. The ACLU has

4 nearly five decades of experience in complex prisoner rights class actions and has

5 represented prisoners in five cases before the U.S. Supreme Court. Since its founding, the

6 ACLU has litigated challenges to conditions of confinement in almost every state, as well

7 as the District of Columbia.

8

13. I and my co-counsel have reviewed current clients, former clients, and other

9 matters we are handling and have handled in the past to determine whether we may have

10 any professional conflict of interest or potential conflict of interest that might inhibit our

11 ability to represent a class of federal Pretrial and Post-conviction Detainees incarcerated at

12 Central Arizona Florence Correctional Complex (as further defined in the

13 Petition/Complaint). We have also considered the information that we are aware of,

14 including confidential and privileged information, concerning the named

15 petitioners/plaintiffs and proposed class representatives of that class to determine whether

16 there may be a conflict of interest or potential conflict of interest between class

17 representatives or between any class representative and any absent class member. We have

18 not identified any potential conflict of interest that we believe would prevent us, or the

19 ACLU generally, from fairly and adequately representing the class, or that would prevent

20 the proposed class representatives from serving as class representatives for the absent class

21 members.

22

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

23

24

Executed this 8th day of May, 2020.

25

/s/ Chase Strangio

26

CHASE STRANGIO (pro hac vice application forthcoming)

27

28

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Case 2:20-cv-00901-DJH--DMF Document 3-3 Filed 05/08/20 Page 1 of 3
EXHIBIT 2

Case 2:20-cv-00901-DJH--DMF Document 3-3 Filed 05/08/20 Page 2 of 3

1

DECLARATION OF VICTORIA LOPEZ

2

I, Victoria Lopez, declare as follows:

3

1. This declaration is submitted in support of Plaintiffs’ Motion for Class

4 Certification. The facts set forth herein are within my personal knowledge or knowledge

5 gained from review of the pertinent documents. If called upon, I could and would testify

6 competently thereto.

7

2. I am the Advocacy and Legal Director of the American Civil Liberties

8 Union Foundation of Arizona (“ACLU of Arizona”), a nonprofit organization with

9 501(c)(3) tax-exempt status.

10

3. In addition to myself, ACLU of Arizona attorneys Jared Keenan and

11 Christine K. Wee as well as paralegal Gloria Torres are working on this case.

12

4. I am a member in good standing of the State Bar of Arizona and State Bar

13 of Illinois. I received my Juris Doctor degree from the University of Pennsylvania in 2001.

14 From 2001- 2007, I was an attorney and executive director of the Florence Immigrant and

15 Refugee Rights Project in Arizona. I joined the ACLU of Arizona in 2009 as a staff

16 attorney and later served as Policy and Advocacy Director and Legal Director. From

17 March 2017 through April 2019, I was a senior staff attorney at the ACLU National Prison

18 Project. Since August 2019, I serve as the Advocacy and Legal Director at the ACLU of

19 Arizona where I oversee the litigation program and serve as counsel in ACLU of Arizona

20 matters.

21

5. In my time as an attorney with the ACLU, I have served as counsel in a

22 number of matters involving jail and prison conditions, the First Amendment and

23 immigration enforcement issues. I have served as class counsel in the following cases:

24 Parsons v. Ryan, No. CV-12-00601-PHX-ROS (D. Ariz.); Doe v. Nielsen, No. CV-15-

25 00250-TUC-DCB (D. Ariz.); and Teneng v. Trump, No. 5:18-CV-01609-JGB-KK (C.D.

26 Cal.).

27

6. My colleague Jared Keenan is the Criminal Justice Staff Attorney at the

28 ACLU of Arizona since November 2017. He is a member in good standing of the Arizona

-1-

Case 2:20-cv-00901-DJH--DMF Document 3-3 Filed 05/08/20 Page 3 of 3

1 bar. He is a 2008 graduate of Boston University School of Law. Before joining the ACLU

2 of Arizona, he worked as a public defender for eight years in Boston, Massachusetts and

3 in Mohave and Yavapai counties in Arizona. He is counsel in the following class action

4 cases at the ACLU of Arizona, Parsons v. Ryan, No. CV-12-00601-PHX-ROS (D. Ariz.);

5 Puente v. City of Phoenix, No. CV-18-02778-PHX-JJT (D. Ariz.).

6

7. My colleague Christine K. Wee is Senior Staff Attorney at the ACLU of

7 Arizona since January 2020. She is a 2001 graduate of Northeastern University School of

8 Law in Boston, Massachusetts, and has civil rights litigation experience as a former public

9 defender in both Massachusetts and New Jersey. Most recently, she was an Assistant

10 Corporation Counsel representing the City of Chicago in complex federal civil rights cases

11 before the U.S. District Court for the Northern District of Illinois, Eastern Division. She

12 is also counsel in the case Doe v. Nielsen, No. CV-15-00250-TUC-DCB (D. Ariz.).

13

8. ACLU of Arizona paralegal Gloria Torres has been with the organization

14 since 2010. She is involved in all currently pending class action cases in our office and

15 has been involved in several other class action cases that have since concluded.

16

9. I have no conflicts of interest with any members of the class nor, to my

17 knowledge, do any of the other of Plaintiffs’ counsel.

18

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

19

20

Executed this 8th day of May, 2020.

21

/s/ Victoria Lopez

22

(Bar No. 330042)

23

24

25

26

27

28

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Case 2:20-cv-00901-DJH--DMF Document 3-4 Filed 05/08/20 Page 1 of 3
EXHIBIT 3

Case 2:20-cv-00901-DJH--DMF Document 3-4 Filed 05/08/20 Page 2 of 3

1

DECLARATION OF JEAN-JACQUES CABOU

2

I, Jean-Jacques Cabou, declare as follows:

3

1. I am over 18 years of age, and I have personal knowledge of the matters

4 contained herein.

5

2. I am a partner with the law firm of Perkins Coie LLP (“Perkins Coie”).

6

3. I make this declaration in support of Plaintiffs’ Motion for Class Certification

7 in the above-captioned matter.

8

4. Along with co-counsel from the ACLU and ACLU of Arizona, Perkins Coie

9 seeks to be appointed as class counsel for the proposed Classes as defined in the above-

10 captioned litigation.

11

5. I am a 2003 graduate of the University of Chicago Law School and have been

12 practicing law for more than 15 years. I am a member of the bars of Arizona and New York,

13 and I am admitted to practice in the U.S. District Court for the District of Arizona, the

14 Supreme Court of the United States, and the U.S. Courts of Appeals for the Fifth, Ninth,

15 and Tenth Circuits, among other courts. I have extensive experience in constitutional

16 litigation and have litigated numerous complex actions in Arizona and federal courts. I also

17 have extensive experience litigating cases on behalf of criminal defendants and inmates. I

18 am a member of the American Law Institute, have received numerous professional

19 recognitions for my advocacy and have engaged in substantial pro bono activities, including

20 complex pro bono constitutional litigation on behalf of incarcerated individuals.

21

6. Perkins Coie was founded in 1912 and has more than 1,100 lawyers in offices

22 across the United States and Asia. Perkins Coie has been consistently recognized for

23 excellence nationally and locally in Arizona. Perkins Coie also has a long history of

24 commitment to pro bono work, including in the Phoenix Office and including with co-

25 counsel in this matter. For example, Perkins Coie was named ACLU of Arizona’s

26 Outstanding Pro Bono Law Firm.

27

7. Collectively, the attorneys of Perkins Coie have extensive experience in all

28 areas of litigation, including pro bono civil rights litigation, class action litigation, and

-1-

Case 2:20-cv-00901-DJH--DMF Document 3-4 Filed 05/08/20 Page 3 of 3

1 complex commercial litigation, including specifically before this Court. These cases

2 include, but are not limited to Cox v. Voyles, No. CV-15-01386-PHX-DJH, 2017 WL

3 11205981 (D. Ariz. Aug. 18, 2017) (constitutional challenge to Arizona’s Forfeiture Act),

4 Parsons v. Ryan, No. CV-12-00601-PHX-ROS (D. Ariz.) (prisoner civil rights class action

5 litigation), and Urdaneta v. Keeton, No. CV-20-00654-PHX-SPL (JFM) (D. Ariz.) (habeas

6 petition challenging constitutionality of immigration detention in light of COVID-19).

7

8. The attorneys of Perkins Coie are committed to the vigorous, effective, and

8 efficient prosecution of this case and will vigorously defend the interests of the proposed

9 Classes. Along with co-counsel, Perkins Coie has already devoted substantial time and

10 resources identifying and investigating the claims at issue in this case and drafting the initial

11 papers.

12

9. Perkins Coie also has sufficient resources to litigate this matter to completion.

13 We are providing, and will continue to provide, our services pro bono to the Classes.

14

10. Based on my collaboration with co-counsel thus far, and my prior, extensive

15 experience with them, it is my belief that the attorneys of the ACLU and ACLU Arizona

16 are likewise committed to the vigorous representation of the Classes in this matter.

17

11. Plaintiffs’ counsel have agreed to act jointly as class counsel, if the Court so

18 appoints them.

19

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

20

21

Executed this 8th day of May, 2020.

22

/s/ Jean-Jacques Cabou

23

(Bar No. 022835)

24

25

26

27

28

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Case 2:20-cv-00901-DJH--DMF Document 3-5 Filed 05/08/20 Page 1 of 2

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8 Maria Guadalupe Lucero-Gonzalez, Claudia
9 Romero-Lorenzo; Tracy Ann Peuplie; James Tyler Ciecierski; and Marvin Lee Enos; each
10 individually and on behalf of all others similarly situated,
11
12 Plaintiffs–Petitioners,
13 v.
14 Kris Kline, Warden of the Central Arizona
15 Florence Correctional Complex; David Gonzales, U.S. Marshal for the District of
16 Arizona; Donald W. Washington, Director of the U.S. Marshals Service; Michael Carvajal,
17 Director of the Federal Bureau of Prisons, in their official capacities,
18 Defendants–Respondents.
19

No. ____________________
[PROPOSED] ORDER GRANTING PLAINTIFFS– PETITIONERS’ MOTION FOR CLASS CERTIFICATION

20

The Court having reviewed Plaintiffs–Petitioners’ (“Plaintiffs”) Motion for Class

21 Certification (Doc. __) and supporting documents, as well as Plaintiffs’ Class-Action

22 Complaint for Declaratory and Injunctive Relief and Petition for Writs of Habeas Corpus

23 (Doc. 1) and supporting documents, and Plaintiffs’ Motion for Temporary Restraining

24 Order and Preliminary Injunction (Doc. __) and supporting documents, and good cause

25 appearing in support thereof,

26

IT IS ORDERED that:

27 (1) Plaintiffs’ Motion for Class Certification is GRANTED.

28

148151187.1

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Case 2:20-cv-00901-DJH--DMF Document 3-5 Filed 05/08/20 Page 2 of 2

1 (2) 2 3 4 5 6 7 8 9 10 (3) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Pursuant to Federal Rule of Civil Procedure (“Rule”) 23, the Court hereby certifies the following two classes, which each satisfy the requirements of Rule 23(a) and 23(b)(2): (a) The Pretrial Class, defined as: All current and future persons held by
Defendants–Respondents Kline, Gonzales, and Washington in pretrial detention at the Central Arizona Florence Correctional Complex. (b) The Post-Conviction Class, defined as: All current and future persons held by Defendants–Respondents Kline and Carvajal in post-conviction detention at the Central Arizona Florence Correctional Complex. Pursuant to Rule 23(g), the Court hereby appoints Plaintiffs’ counsel—Perkins Coie LLP, American Civil Liberties Union Foundation, and American Civil Liberties Union Foundation of Arizona—as class counsel for the Pretrial Class and the PostConviction Class.

148151187.1

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 Case 2:20-cv-00901-DJH--DMF Document 6 Filed 05/11/20 Page 1 of 5

1

ASH

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Maria Guadalupe Lucero-Gonzalez, et

No. CV-20-00901-PHX-DJH (DMF)

10 al.,

ORDER

11

Plaintiffs,

12 v.

13 Kris Kline, et al.,
14 Defendants.
15

16

Plaintiffs Maria Guadalupe Lucero-Gonzalez, Claudia Romero-Lorenzo, Tracy Ann

17 Peuplie, James Tyler Ciecierski, and Marvin Lee Enos, who are confined in CoreCivic’s

18 Central Arizona Florence Correctional Complex (CAFCC), have filed, through counsel on

19 behalf of themselves and all others similarly situated, a civil rights Complaint pursuant to

20 28 U.S.C. §§ 1331, 1346, 2201-02, and 2241 (Doc. 1). Plaintiffs have also filed a Motion

21 for Temporary Restraining Order and Preliminary Injunction (Doc. 2), and a Motion for

22 Class Certification (Doc. 3). The Court will order Defendants to answer the Complaint,

23 and respond to the Motions.

24 I. Statutory Screening of Prisoner Complaints

25

The Court is required to screen complaints brought by prisoners seeking relief

26 against a governmental entity or an officer or an employee of a governmental entity. 28

27 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff

28 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which

Case 2:20-cv-00901-DJH--DMF Document 6 Filed 05/11/20 Page 2 of 5

1 relief may be granted, or that seek monetary relief from a defendant who is immune from

2 such relief. 28 U.S.C. § 1915A(b)(1)–(2).

3

A pleading must contain a “short and plain statement of the claim showing that the

4 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does

5 not demand detailed factual allegations, “it demands more than an unadorned, the-

6 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

7 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere

8 conclusory statements, do not suffice.” Id.

9

“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

10 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

11 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content

12 that allows the court to draw the reasonable inference that the defendant is liable for the

13 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for

14 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

15 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual

16 allegations may be consistent with a constitutional claim, a court must assess whether there

17 are other “more likely explanations” for a defendant’s conduct. Id. at 681.

18

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts

19 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342

20 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent

21 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551

22 U.S. 89, 94 (2007) (per curiam)).

23 II. Complaint

24

In their Complaint, Plaintiffs name as Defendants: CAFCC Warden Kris Kline;

25 United States Marshal for the District of Arizona David Gonzales; Director of the United

26 States Marshals Service Donald W. Washington; and Director of the Federal Bureau of

27 Prisons Michael Carvajal. All Defendants are sued in their official capacities. Put broadly,

28 Plaintiffs allege that Defendants have violated their Fifth or Eighth Amendment rights by

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Case 2:20-cv-00901-DJH--DMF Document 6 Filed 05/11/20 Page 3 of 5

1 placing them at unconstitutional risk from exposure to COVID-19. They seek declaratory

2 and injunctive relief.

3

The Court will require Defendants to answer the Complaint.

4 III. Motions

5

A. Motion for Class Certification

6

Plaintiffs bring this action on behalf of themselves and a putative class consisting

7 of “[a]ll current and future persons held by Defendants Kline, Gonzales[] and Washington

8 in pretrial detention at [CAFCC]” (the “Pretrial Class”), and “[a]ll current and future

9 persons held by Defendants Kline and Carvajal in post-conviction detention at [CAFCC]”

10 (the “Post-Conviction Class”). Plaintiffs assert that the requirements of numerosity,

11 commonality, typicality, and adequacy for a class action under Federal Rule of Civil

12 Procedure 23 are satisfied.

13

Defendants will be required to respond to the Motion.

14

B. Motion for Temporary Restraining Order and Preliminary Injunction

15

Plaintiffs seek a “Rule 706 expert”1 to “lead a review of CoreCivic to determine

16 whether Defendants have implemented consistent social (or physical) distancing, novel

17 coronavirus testing procedures, and hygienic practices sufficient to reasonably protect

18 Plaintiffs and Class Members from contracting COVID-19 while in Defendants’ custody,”

19 and, if not, to “submit to the Court … recommendations as to how such practices should

20 be achieved and within what approximate timeline,” and that Defendants be required to

21 comply with and implement those recommendations.

22

Plaintiffs assert that they have provided Defendants with sufficient notice of this

23 action and its requests for relief to justify entrance of a temporary restraining order without

24 further notice. Fed. R. Civ. P. 65(b)(1). However, given that Plaintiffs themselves seek an

25 expert witness to determine the scope and specifics of any substantive injunctive order, the

26

27

1 Rule 706 of the Federal Rules of Evidence provides for court-appointed expert

28

witnesses. Under that Rule “[t]he Court may appoint any expert that the parties agree on and any of its own choosing,” “[b]ut the Court may only appoint someone who consents to

act.” Fed.R.Evid. 706(a).

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Case 2:20-cv-00901-DJH--DMF Document 6 Filed 05/11/20 Page 4 of 5

1 Court finds that irreparable harm will not occur prior to hearing from Defendants. Plaintiffs

2 do not discuss who might serve as an expert, which only further supports providing

3 Defendants an opportunity to respond.

4

Accordingly, Defendants will be required to respond to the Motion. However, given

5 the time-sensitive nature of Plaintiffs’ request and the harms alleged, the Court will

6 expedite this matter.

7

IT IS ORDERED:

8

(1) Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary

9 Injunction (Doc. 2) is denied to the extent it seeks a temporary restraining order

10 without notice to Defendants.

11

(2) Plaintiffs must either serve Defendants in compliance with the applicable

12 rules of the Federal Rules of Civil Procedure, and the Local Rules of this Court, or seek a

13 waiver of service from Defendants.

14

(3) If Plaintiffs do not obtain a waiver of service of the summons or complete

15 service of the Summons and Complaint on a Defendant within 90 days of the filing of the

16 Complaint or within 60 days of the filing of this Order, whichever is later, the action may

17 be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv

18 16.2(b)(2)(B)(ii).

19

(4) Defendants must respond to the Motion for Class Certification (Doc. 3) and

20 answer the Complaint (Doc. 1) or otherwise respond by appropriate motion within the time

21 provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure.

22

(5) Any answer or response must state the specific Defendant by name on whose

23 behalf it is filed. The Court may strike any answer, response, or other motion or paper that

24 does not identify the specific Defendant by name on whose behalf it is filed.

25

(6) NO LATER than 5:00 p.m. on THURSDAY, MAY 14, 2020, Defendants

26 must RESPOND to the Motion for Temporary Restraining Order and Preliminary

27 Injunction. Plaintiffs may file a reply no later than 5:00 p.m. on Friday, May 15, 2020.

28

(7) The Clerk of Court must send a copy of this Order to counsel for CoreCivic,

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Case 2:20-cv-00901-DJH--DMF Document 6 Filed 05/11/20 Page 5 of 5

1 Daniel P. Stuck, by email to dstruck@strucklove.com, and by certified mail to:

2 Daniel P. Struck

3

Struck Love Bojanowski & Acedo PLC

4

3100 W Ray Rd., Ste. 300 Chandler, AZ 85226

5

(8) The Clerk of Court must also send a copy of this Order by email to the United

6 States Attorney for the District of Arizona, to the attention of Peter M. Lantka at

7 peter.lantka@usdoj.gov and Mary Finlon at mary.finlon@usdoj.gov.

8

(9) This matter is referred to Magistrate Judge Deborah M. Fine pursuant to

9 Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as

10 authorized under 28 U.S.C. § 636(b)(1).

11

Dated this 11th day of May, 2020.

12

13

14

Honorable Diane J. Humetewa

15

United States District Judge

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 2:20-cv-00901-DJH--DMF Document 18 Filed 05/15/20 Page 1 of 14

1 Jean-Jacques Cabou (#022835) Matthew R. Koerner (#035018)
2 Margo R. Casselman (#034963) Benjamin C. Calleros (#034763)
3 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
4 Phoenix, Arizona 85012-2788 Telephone: 602-351-8000
5 Facsimile: 602-648-7000 JCabou@perkinscoie.com
6 MKoerner@perkinscoie.com MCasselman@perkinscoie.com
7 BCalleros@perkinscoie.com DocketPHX@perkinscoie.com
8 Attorneys for Plaintiffs–Petitioners
9 (additional counsel identified on signature page)

10 IN THE UNITED STATES DISTRICT COURT
11 FOR THE DISTRICT OF ARIZONA
12

13 Maria Guadalupe Lucero-Gonzalez; Claudia Romero-Lorenzo; Tracy Ann Peuplie; James
14 Tyler Ciecierski; and Marvin Lee Enos, each individually and on behalf of all others similarly
15 situated, 16

No. 2:20-CV-00901-DJH (DMF) REPLY IN SUPPORT OF
MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

17 18 v.

Plaintiffs–Petitioners,

(Oral Argument and Expedited Ruling Requested)

19 Kris Kline, Warden of the Central Arizona Florence Correctional Complex; David Gonzales,
20 U.S. Marshal for the District of Arizona; Donald W. Washington, Director of the U.S. Marshals
21 Service; Michael Carvajal, Director of the Federal Bureau of Prisons, in their official capacities,
22 Defendants–Respondents.
23

24

25

26

27

28

Case 2:20-cv-00901-DJH--DMF Document 18 Filed 05/15/20 Page 2 of 14

1

At CoreCivic, Inc.’s Central Arizona Florence Correctional Complex (“CoreCivic”),

2 only a fraction of the population has been tested for COVID-19, but at least 24 people have

3 tested positive (so far). More will soon. And absent this Court’s needed intervention, the entire

4 population at CoreCivic is at risk of contracting COVID-19. Despite the increasing number of

5 positive tests—and the mere handful of individuals to be tested—at CoreCivic, though,

6 Defendants assure the Court (at 5) that the Plaintiffs’ factual “allegations do not reflect at all

7 the reality of what is actually happening at [CoreCivic].” Defendants assert—no fewer than six

8 times—that Plaintiffs’ factual allegations about the conditions at CoreCivic are “false.” [Doc.

9 16 at 6, 10; Doc. 16-3, ¶¶ 45–46, 110, 114] But those detained at CoreCivic—across different

10 units, pods, and cells—consistently tell a different story: no social distancing, slipshod cleaning

11 practices, rationed cleaning supplies, and shared personal protective equipment (“PPE”), like

12 masks. Plaintiffs’ factually supported allegations are sufficient to grant Plaintiffs their requested

13 injunctive relief and to maintain the status quo. The stark differences between Plaintiffs’ and

14 Defendants’ stories, though, reaffirm the need for an independent expert to inspect the facility

15 and advise the Court on the conditions inside. And in the face of the serious risks posed by

16 COVID-19 spreading through CoreCivic, prompt action is needed.

17 I. 18

Injunctive relief is needed to prevent further spread of COVID-19 at CoreCivic. “‘A preliminary injunction is appropriate when the [movant] demonstrates . . . that

19 serious questions going to the merits were raised and the balance of the hardships tips sharply

20 in the [movant]’s favor,’ . . . so long as the [movant] also shows that there is a likelihood of

21 irreparable injury and that the injunction is in the public interest.” All. for the Wild Rockies v.

22 Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011) (first alteration in original) (citation omitted).

23 Plaintiffs have established each of these elements.

24

A. Plaintiffs raise, at a minimum, serious questions going to the merits.

25

Plaintiffs are likely to succeed in establishing that they are subject to unconstitutional

26 conditions of confinement at CoreCivic, based on the risks posed by COVID-19 and

27 Defendants’ failure to address these unreasonable risks. These conditions violate Plaintiffs’

28 rights under the Fifth and Eighth Amendments to the U.S. Constitution.

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Case 2:20-cv-00901-DJH--DMF Document 18 Filed 05/15/20 Page 3 of 14

1

1. Plaintiffs are likely to succeed on the merits of their claims that the

conditions at CoreCivic violate the Fifth and Eighth Amendments.

2

Plaintiffs are likely to establish that the conditions at CoreCivic violate the “minimum

3 standard of care” required under the Eighth Amendment. Gordon v. County of Orange, 888 F.3d

4 1118, 1122 (9th Cir. 2018) (citation omitted). For an infectious disease like COVID-19, the

5 Eighth Amendment’s deliberate-indifference test is satisfied when officials “ignore a condition

6 of confinement that is sure or very likely to cause serious illness and needless suffering the next

7 week or month or year,” even when “the complaining inmate shows no serious current

8 symptoms.” Helling v. McKinney, 509 U.S. 25, 33–34 (1993). “That the Eighth Amendment

9 protects against future harm to inmates is not a novel proposition. . . . It would be odd to deny

10 an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison

11 on the ground that nothing yet had happened to them.” Id. at 33. Plaintiffs here satisfy both

12 the objective and subjective prongs of this test. See Wilson v. Seiter, 501 U.S. 294, 298 (1991).

13 First, Plaintiffs are likely to establish that the current conditions at CoreCivic—

14 exacerbated by the COVID-19 pandemic—are “objectively unreasonable.” Kingsley v.

15 Hendrickson, 135 S. Ct. 2466, 2473 (2015). This objective analysis “turns on the ‘facts and

16 circumstances of each particular case,’” id. (citation omitted), and considers whether a detainee

17 is confined in “unsafe, life-threatening conditions” that threaten “reasonable safety” or pose

18 an “unreasonable risk of serious damage to his future health,” McKinney, 509 U.S. at 33, 35.

19 Though Defendants dispute on several grounds the serious risks posed by COVID-19

20 at CoreCivic, their arguments fail. Defendants first contend (at 15) that Plaintiffs present in

21 their Motion a “truncated and conclusory analysis.” Not so. Plaintiffs’ Motion—and the seven

22 declarations submitted in support—detail at length the serious risks posed by COVID-19. [Doc.

23 2 at 13; see also id. at 7–11 (citing declarations)] These declarations from numerous detainees

24 and from an assistant federal public defender, all corroborate the same inadequacies at

25 CoreCivic: non-existent social distancing, minimal disinfecting and cleaning supplies, and

26 rationed PPE.1 And as further detailed in the supplemental declaration of Dr. Goldenson, even

27

28

1 Defendants complain (at 5, 13, 14) that Plaintiffs’ declarations are not signed “by the

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Case 2:20-cv-00901-DJH--DMF Document 18 Filed 05/15/20 Page 4 of 14

1 CoreCivic’s COVID-19 policies as written only recommend maintaining distance from people

2 who are sick, an inadequate measure to prevent the spread of a virus that frequently spreads

3 through asymptotic individuals. [Supp. Decl. of Joseph Goldenson, MD, attached as Ex. 1]

4 Other declarations further prove that the social distancing recommended under existing policy

5 is not happening in practice. [See, e.g., Supp. Decl. of Christina M. Woehr, attached as Ex. 2]

6 Furthermore, as Dr. Goldenson explains, CoreCivic appears to be quarantining unconfirmed

7 cases together when CDC guidelines provide that unconfirmed, symptomatic individuals must

8 be held in isolation. Quarantining unconfirmed cases together only facilitates the spread of the

9 virus. Simply put, Defendants’ response to COVID-19 has not been, as they claim (at 7),

10 “ample and appropriate.” See Hutto v. Finney, 437 U.S. 678, 681, 683 (1978) (upholding district

11 court’s orders to remedy unconstitutional conditions at prison).

12

Defendants next claim (at 5) that “only 15 detainees [and nine employees] . . . have

13 tested positive for COVID-19” and (at 7) that these “low infection numbers are a testament to

14 the success of” CoreCivic’s response. Defendants fail to disclose, however, that Defendants

15 generally have failed to test detainees for COVID-19—including those who exhibit symptoms.

16 Indeed, nowhere in Defendants’ 300 pages of exhibits do Defendants disclose the total number

17 of detainees and employees who have been tested for COVID-19. Comprehensive testing

18 would likely confirm the inevitable: COVID-19 has begun to spread throughout the facility.

19 See These Prisons are Doing Mass Testing for COVID-19--And Finding Mass Infections, Marshall Project

20 (Apr. 24. 2020), https://www.themarshallproject.org/2020/04/24/these-prisons-are-doing-

21 mass-testing-for-covid-19-and-finding-mass-infections (“From California to North Carolina,

22 prisons that do aggressive testing are finding that infection is spreading quickly.”).

23
24 [Plaintiffs] themselves.” To the extent Defendants imply these declarations are improper, Defendants are incorrect. See Order at 10 n.21, Urdaneta v. Keeton, No. CV-20-00654-PHX-SPL
25 (JFM) (D. Ariz. May 5, 2020), ECF No. 52 (“Keeton Order”) (overruling similar evidentiary objections based on Rule 807 of the Federal Rules of Evidence). The declarations reflect
26 Plaintiffs’ statements, taken by telephone due to the unavailability of in-person visits as a result 27 of the pandemic. [Doc. 1-3 ¶¶ 12–14] Defendants do not suggest how Plaintiffs’ counsel could
have done otherwise. And each Plaintiff certified “under penalty of perjury” that their 28 statements were true and correct. [Docs. 1-5 at 2; 1-6 at 2; 1-7 at 2; 1-8 at 2; 1-9 at 2]

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Case 2:20-cv-00901-DJH--DMF Document 18 Filed 05/15/20 Page 5 of 14

1

Many of Defendants’ factual assertions, in fact, are contradicted by not only Plaintiffs’

2 papers, but also Defendants’ own exhibits. And though Plaintiffs cannot address every

3 contradiction under the circumstances here, a few examples are worth noting. For example,

4 Warden Kline’s sworn narrative insists that “if a detainee’s mask becomes soiled or otherwise

5 unusable, the detainee can request a new mask, and it will be provided to them.” [Doc. 16-3

6 ¶ 89] But, as numerous Plaintiffs explained, that isn’t true. And other information submitted

7 by Kline himself proves as much. Also attached to Kline’s Declaration are the minutes of

8 various “Town Hall Meetings.” These minutes clearly tell detainees they “will only be issued

9 the 1 mask.” [Doc. 16-6 at 65] These minutes corroborate the Declaration of Christina Woehr,

10 who explained that detainees were only “given one disposable mask per person.” [Doc. 1-3

11 ¶ 29] And the minutes corroborate the account of Mr. Enos, who says: “We have only been

12 provided one mask.” [Doc. 1-9 ¶ 6]2

13

Similarly, Warden Kline’s opinion of the situation is that CoreCivic has “ensure[d] that

14 regular cleaning and disinfecting measures are taking place.” [Doc. 16-3 ¶ 115] Again, his sworn

15 conclusion is undone by the Town Hall minutes, which candidly reflect CoreCivic staff’s

16 assessment that “sanitation is not what it needs to be.” [Doc. 16-6 at 64] And again the meeting

17 minutes corroborate what Plaintiffs, who live at CoreCivic every day, know and swear to be

18 true including that their bathroom facilities are “filthy” [Doc. 1-9 ¶ 16] and they lack “cleaning

19 supplies to clean [their] pods, cells, cups, or dishes” [Doc. 1-6 ¶ 10].

20

Second, Plaintiffs are likely to establish the subjective prong as well. This prong is satisfied

21 when an official is both “aware of facts from which the inference could be drawn that a

22 substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan,

23 511 U.S. 825, 837 (1994). Despite acknowledging this standard (and the risks from COVID-

24 19), though, Defendants appear to dispute (at 15–16) they have the requisite subjective

25 knowledge. But in arguing (at 16) that Defendants have not “disregarded known dangers,”

26

27

2 Oddly, Defendants assert that “[a]fter searching various databases, no detainee by th[e]

name [Claudia Romero-Lorenzo] . . . has been detained at [CoreCivic].” That is false. As

28 Defendants acknowledge elsewhere, she is assigned to a pod at CoreCivic. [Doc. 16-3 ¶ 132]

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Case 2:20-cv-00901-DJH--DMF Document 18 Filed 05/15/20 Page 6 of 14

1 Defendants largely revert to their argument on the objective prong—i.e., that “their response

2 has been reasonable.” As Plaintiffs establish in their Motion (at 13–14), though, the obvious

3 risks posed by the global COVID-19 pandemic satisfy this subjective standard because “the

4 risk of harm is obvious.” Hope v. Pelzer, 536 U.S. 730, 738 (2002).3

5

And third, the Pretrial Class is likely to succeed under the objective-only analysis from

6 the Ninth Circuit’s opinion in Gordon. In addressing Plaintiffs’ argument under Gordon,

7 Defendants contend (at 17) that “the significant measures that [Defendants] have implemented

8 at [CoreCivic] in response to COVID-19 show, at the very least, that [Defendants] have not

9 recklessly disregarded the health and safety of inmates and detainees in their care.” But

10 Defendants’ subjective intentions are irrelevant to the Pretrial Class’s claim. “[T]he proper

11 standard of review for [these] claims,” the Ninth Circuit has held, “is one of objective

12 indifference, not subjective indifference.” Gordon, 888 F.3d at 1120. And as Plaintiffs’ Motion

13 (at 14–16) establishes, the Pretrial Class is likely to succeed on their claims under Gordon.

14

2. Exhaustion does not apply to Plaintiffs’ alternative habeas claims,

and Plaintiffs exhausted their available remedies. 15

Defendants argue (at 13) that Plaintiffs’ claims are unlikely to succeed because Plaintiffs

16

failed to exhaust their administrative remedies as required by the Prison Litigation Reform Act

17

(“PLRA”). This argument fails for at least three reasons. First, the PLRA does not apply to

18

Plaintiffs’ habeas petitions. See 42 U.S.C. § 1997e; Walker v. O’Brien, 216 F.3d 626, 634 (7th Cir.

19

2000) (joining three other circuits in holding that “habeas corpus petitions are not subject to

20

the PLRA”); Grier v. Hood, 46 F. App’x 433, 440 (9th Cir. 2002) (holding that PLRA exhaustion

21

did not apply to § 2241 habeas petition).

22

Second, even if the PLRA applies to Plaintiffs’ other claims, Plaintiffs have satisfied its

23

requirements to “complete the administrative review process in accordance with the applicable

24

procedural rules.” Woodford v. Ngo, 548 U.S. 81, 88 (2006). Each Plaintiff here properly pursued

25

administrative remedies in accordance with CoreCivic policy. Plaintiffs cannot control the fact

26

27 3 Defendants also attach statements establishing their subjective knowledge, including,
28 for example: “sanitation is not what it needs to be.” [Doc. 16-6 at 64]

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Case 2:20-cv-00901-DJH--DMF Document 18 Filed 05/15/20 Page 7 of 14

1 that CoreCivic failed to do the same. Under CoreCivic policies, detainees may raise complaints

2 by seeking informal resolution or filing a formal or emergency grievance. [Doc. 16-8 at 15]

3 When a formal grievance is filed, CoreCivic must respond within ten days of its submission (or

4 five days if the grievance relates to medical care). [Id. at 16] For emergency grievances, detainees

5 must receive a response within one day. [Id. at 5 ¶ 32]

6

Here, all Plaintiffs filed formal or emergency grievances about CoreCivic’s failure to

7 protect detainees from COVID-19. Ms. Lucero-Gonzalez filed an emergency grievance on May

8 1, 2020 [Doc. 1-5 ¶ 21]; Ms. Romero-Lorenzo attempted, but was unable, to file a grievance

9 on April 29, 2020, and then successfully filed a grievance on May 1, 2020 [Doc. 1-6 ¶ 17]; Ms.

10 Peuplie filed emergency grievances on April 22 and 30, 2020 [Doc. 1-7 ¶ 14]; Mr. Ciecierski

11 filed a grievance around April 15, 2020, and again on April 30, and attempted to file emergency

12 grievances, but no forms were available [Doc. 1-8 ¶ 10]; and Mr. Enos filed emergency

13 grievances on April 19 and 22, 2020 [Doc. 1-9 ¶ 22]. But CoreCivic not only failed to respond

14 to these grievances within the timeframes mandated, but also still has not responded to most

15 of these grievances. This violates CoreCivic’s own policy requiring responses to formal

16 grievances in ten days and emergency grievances in one day. [Doc. 16-8 ¶¶ 24, 32]4

17

Defendants’ suggestion (at 14) that all five Plaintiffs are lying is unfounded and

18 unfortunate. Defendants submit a declaration from CoreCivic Grievance Coordinator A.

19 Partain, who claims “none of the Petitioners submitted a Formal Grievance with respect to

20 allegations related to [CoreCivic’s] COVID-19 response protocols” aside from Mr. Enos. [Doc.

21 16-8 ¶ 35] Partain further states that there is “no record” of grievances from Mr. Ciecierski “on

22 either April 15, 2020 or April 30, 2020” [Id. ¶ 41]; from Mr. Enos “on April 19, 2020, or on

23 April 22, 2020” [Id. ¶ 46]; from Ms. Lucero-Gonzalez “on May 1, 2020” [Id. ¶ 56]; or from Ms.

24 Peuplie “on April 22, 220[sic], or on April 30, 2020” [Id. ¶ 60]. To reach these conclusions,

25 Partain reviewed Plaintiffs’ grievance history in CoreCivic’s Apps electronic database and an

26

27

4 Notably, in the two grievances that Defendants admit they received, Plaintiffs

complained that “my life is in danger” [Doc. 16-8 at 34] or that Plaintiff “[could] die” [Id. at

28 31], but Defendants nonetheless took about a week to respond to both.

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Case 2:20-cv-00901-DJH--DMF Document 18 Filed 05/15/20 Page 8 of 14

1 Excel document referred to as the Grievance Log. [Doc. 16-8 ¶ 33] But grievance information

2 is not added until what CoreCivic deems the “receipt” of the grievance. [See id. ¶¶ 12–13] Thus,

3 while it could be true that there was “no record” of Plaintiffs’ grievances that was (1) received,

4 (2) added in Apps or the Grievance Log, and (3) done so on those specific dates, Partain does not

5 address the possibility that the grievances were inputted on different dates—or have not yet

6 been inputted at all. Indeed, Partain’s own declaration and attachments demonstrate there can

7 be a significant delay from when a detainee files a grievance to when CoreCivic marks the

8 grievance as “received.”5 Considering that staff recently informed Ms. Peuplie that CoreCivic

9 is receiving about 400 grievances per day and would get to her grievance “whenever we get to

10 it” [Doc. 1-7 ¶ 14], it is likely that the COVID-19 outbreak at CoreCivic and corresponding

11 influx of grievances has exacerbated the delay between grievance submission and “receipt” so

12 that “no record” of Plaintiffs’ grievances yet existed when Partain reviewed the records.

13

In any event, “[f]ailure to exhaust under the PLRA is ‘an affirmative defense the

14 defendant must plead and prove.’” Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc)

15 (citation omitted). Defendants have not met their burden to show they are likely to succeed on

16 this defense by submitting their policies on the books and vague record searches, without

17 engaging with Plaintiffs’ specific assertions.

18

3. Further exhaustion was unavailable, as evinced by the concessions

of CoreCivic’s staff that “we’ll get to it whenever we get to it.” 19

Even if Plaintiffs have not exhausted administrative remedies, they were not required

20

to—because CoreCivic’s grievance procedures are not “available” to remedy Plaintiffs’ claims.

21

Under the PLRA, Plaintiffs only need to exhaust “such administrative remedies as are available,”

22

42 U.S.C. § 1997e(a) (emphasis added), and “need not exhaust unavailable” remedies, Ross v.

23

Blake, 136 S. Ct. 1850, 1858 (2016). The circumstances here fall squarely within the Supreme

24

25 5 For instance, Ms. Lucero-Gonzalez submitted a medical-care grievance on April 20,
26 2020. [Doc. 16-8 at 40 & ¶ 51] CoreCivic did not “receive” the grievance until April 28, 2020 27 [Id. at 40], three days after CoreCivic’s response was due under its grievance procedure [Id. at
16]. Additionally, Mr. Ciecierski submitted an informal resolution request on April 28, 2020, 28 that CoreCivic did not “receive” until May 4, 2020. [Id. at 31 & ¶ 36]

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Case 2:20-cv-00901-DJH--DMF Document 18 Filed 05/15/20 Page 9 of 14

1 Court’s holding in Ross that “an administrative procedure is unavailable when (despite what

2 regulations or guidance materials may promise) it operates as a simple dead end—with officers

3 unable or consistently unwilling to provide any relief to aggrieved inmates.” 136 S. Ct. at 1859.

4

As noted above, during the past month the five named Plaintiffs have filed eight

5 grievances expressing fear for their lives and safety, which CoreCivic has (at best) lost, or (at

6 worst) ignored. It is no surprise that Plaintiffs’ pleas have gone unanswered. CoreCivic staff

7 have explicitly told Plaintiffs that they receive hundreds of grievances per day and would get to

8 the grievance “whenever we get to it” [Doc. 1-7 ¶ 14], and that “everything at [CoreCivic] is

9 just fine” when one Plaintiff asked for a grievance form [Doc. 1-6 ¶ 17]. Moreover, “[g]rievance

10 forms are not always available” [Doc. 1-7 ¶ 15] or “rarely available” [Doc. 1-8 ¶ 10]. See Marella

11 v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (reversing district court’s dismissal of claim

12 based on failure to exhaust where prisoner alleged that he “did not have access to the necessary

13 forms”). Thus, CoreCivic staff has been “unable or consistently unwilling to provide any relief”

14 to Plaintiffs via CoreCivic’s official grievance procedures. Ross, 136 S. Ct. at 1859. There is no

15 available process that can provide timely relief in the face of imminent danger. Fuqua v. Ryan,

16 890 F.3d 838, 850 (9th Cir. 2018) (“[T]he particular circumstances of the prisoner’s case must

17 be considered when deciding whether administrative remedies were properly exhausted.”).

18

What Plaintiffs have explained they are experiencing at CoreCivic—significant hurdles

19 to filing grievances and insurmountable hurdles to obtaining adjudication of those grievances—

20 is “the reality of what is actually happening at [CoreCivic]” [Doc. 16 at 5], while Defendants’

21 accounts from the facility-wide Grievance Coordinator and attached vague record searches are

22 not. Plaintiffs have followed CoreCivic grievance policy to the absolute best of their abilities,

23 and have faced a “simple dead end.” Ross, 136 S. Ct. at 1859.

24

4. Plaintiffs’ habeas claims are cognizable under 28 U.S.C. § 2241.

25

Defendants next challenge, on two separate grounds, only part of Plaintiffs’ pleading:

26 the additional request for writs of habeas corpus. Neither argument passes scrutiny.

27

First, Defendants contend (at 20–21) that “[i]ndividual motions pursuant to the Bail

28 Reform Act (“BRA”) . . . are the proper legal vehicle” for part of Plaintiffs’ requested relief

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Case 2:20-cv-00901-DJH--DMF Document 18 Filed 05/15/20 Page 10 of 14

1 (i.e., release through writs of habeas corpus). Defendants thus imply that Plaintiffs are barred

2 from seeking relief except through the BRA. But Defendants cite no binding authority for this

3 proposition; nor could they. Rather, in support of this supposed BRA bar, Defendants cite (at

4 21) two inapposite district-court cases. One explicitly “decline[d] to address . . . [the

5 government’s argument] under the Bail Reform Act.” Alvarez v. Larose, No. 20-cv-00782-DMS

6 (AHG), 2020 WL 2315807, at *2 (S.D. Cal. May 9, 2020). The other never mentioned the BRA.

7 See Plata v. Newsom, No. 01-cv-01351-JST, 2020 WL 1908776 (N.D. Cal. Apr. 17, 2020).

8

On the merits, the dearth of caselaw supporting Defendants’ contention is unsurprising.

9 Defendants appear to argue that the BRA serves as the exclusive (or predominant) legal remedy

10 for Plaintiffs’ habeas claims. Not so. The BRA establishes an initial inquiry for district courts

11 considering whether a person’s release pending trial “will reasonably assure the appearance of

12 the person as required and the safety of any other person and the community.” 18 U.S.C.

13 § 3142(g). Nothing in the BRA contemplates the conditions and constitutionality of

14 confinement after a district court has made this determination. The BRA simply does not apply.

15

Second, Defendants claim (at 18) that Plaintiffs are unlikely to succeed through habeas

16 because “[Plaintiffs] cannot seek release from detention in a Habeas action but must instead

17 pursue relief under the . . . [PLRA].” But the PLRA did not suspend writs of habeas corpus,

18 nor did Plaintiffs seek release under the PLRA. See U.S. Const. art I, § 9 cl. 2. Habeas relief is

19 available to individuals (like Plaintiffs) who are “in custody in violation of the Constitution or

20 laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Generally, “[c]hallenges to the

21 validity of any confinement or to particulars affecting its duration are the province of habeas

22 corpus,” where a civil-rights action is the avenue for “requests for relief turning on

23 circumstances of confinement.” Muhammad v. Close, 540 U.S. 749, 750 (2004). The Supreme

24 Court, in fact, has repeatedly refused to foreclose detainees from using “the writ with respect

25 to claims of unlawful conditions of treatment or confinement.” Boumediene v. Bush, 553 U.S.

26 723, 792 (2008); see also, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1862 (2017). And release from

27 unconstitutional confinement falls “within the core of habeas corpus.” Preiser v. Rodriguez, 411

28 U.S. 475, 487 (1973). The PLRA, by comparison, does not apply to “habeas corpus proceedings

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Case 2:20-cv-00901-DJH--DMF Document 18 Filed 05/15/20 Page 11 of 14

1 challenging the fact or duration of confinement.” 18 U.S.C. § 3626(g)(2).

2

Here, Plaintiffs bring (in part) petitions for habeas corpus, challenging the fact or

3 duration of confinement. Plaintiffs specifically ask that the Court “issue writs of habeas corpus

4 on the ground that Plaintiffs’ continued detentions” are unconstitutional, “[i]f the expert’s

5 recommendations cannot be achieved without reducing the detained population at CoreCivic.”

6 [Doc. 1 at 27] This requested relief and its corresponding claims “challeng[e] the fact [and]

7 duration of confinement in prison.” 18 U.S.C. § 3626(g)(2). “The fact that [Plaintiffs’] claims

8 require consideration of detention conditions does not necessarily preclude habeas corpus

9 review,” as this Court recently held; “these claims are cognizable under § 2241.” Keeton Order

10 at 12. Thus, the PLRA and its requirements neither apply to nor bar Plaintiffs’ claims for relief.

11

B. The remaining injunctive-relief factors similarly favor granting relief.

12

The likelihood of irreparable harm to Plaintiffs, without injunctive relief, is far from

13 “speculative,” as Defendants claim (at 21–22)—it is exceedingly urgent. Conditions that are

14 “very likely to cause serious illness and needless suffering the next week or month or year”

15 violate the Constitution, and a court “need not await a tragic event” before granting relief.

16 Helling, 509 U.S. at 33; see also Parsons v. Ryan, 754 F.3d 657, 680 (9th Cir. 2014). And “the

17 deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’” Melendres v.

18 Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (citation omitted). In fact, courts have found

19 irreparable harm for detainees facing similar circumstances. See, e.g., Carranza v. Reams, 2020 WL

20 2320174, at *11 (D. Colo. May 11, 2020) (finding “irreparable harm” at jail where “at least ten

21 inmates have tested positive for COVID-19”); Barbecho v. Decker, No. 20-cv-2821 (AJN), 2020

22 WL 2317876, at *6 (S.D.N.Y. May 11, 2020) (finding risk of irreparable harm where jailers “do

23 not offer evidence that testing is widely offered or used to ascertain the scope of the outbreak

24 among the detainee and inmate populations” (internal quotation marks and citation omitted)).

25 In this case, the balance of equities tips sharply in Plaintiffs’ favor. See Ariz. Dream Act Coal. V.

26 Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014) (“[B]y establishing a likelihood that Defendants’

27 policy violates the U.S. Constitution, Plaintiffs have also established that both the public

28 interest and the balance of the equities favor [injunctive relief].”).

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Case 2:20-cv-00901-DJH--DMF Document 18 Filed 05/15/20 Page 12 of 14

1

Plaintiffs do not, as Defendants suggest (at 22), seek a “boundless” preliminary

2 injunction that will result in a “facility czar.” Rather, they seek a remedy that is well within this

3 Court’s discretion: confinement that complies with the Constitution. See, e.g., Swann v. Charlotte-

4 Mecklenburg Bd. of Educ., 402 U.S. 1, 15–16 (1971) (“Once a right and a violation have been

5 shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for

6 breadth and flexibility are inherent in equitable remedies.”); Stone v. City & Cty. of San Francisco,

7 968 F.2d 850, 861 (9th Cir. 1992) (“Federal courts possess whatever powers are necessary to

8 remedy constitutional violations because they are charged with protecting these rights.”).

9 II. 10

An expert is appropriate here, and Plaintiffs have identified five such individuals. Defendants last argue (at 23) that a preliminary injunction is inappropriate because such

11 relief should only serve to maintain “the status quo.” That is exactly what Plaintiffs seek. The

12 “status quo” in this case is that Petitioners remain alive and (seemingly) uninfected by COVID-

13 19. Defendants’ similar argument (at 22) that appointment of an expert is “premature” is belied

14 by the rapid spread of COVID-19 in these congregate living settings. Defendants’ remaining

15 arguments—that there will be concerns with the expert’s neutrality, that the Court will “rubber

16 stamp” the expert’s report, that the expert’s report will be so unreliable that it will fail under

17 Daubert, and that there will not be an opportunity to cross-examine the expert—are premature

18 and unfounded. It is well within this Court’s competence to craft orders and implement

19 procedures to protect against these concerns as it sees fit, including at a later time.

20

Plaintiffs thus respectfully request that this Court appoint any of these highly qualified

21 individuals as an expert in this case, to promptly inspect CoreCivic and advise the Court on the

22 facility’s conditions and compliance with recommendations by public-health experts.6

23 III. Conclusion

24

Plaintiffs request that this Court issue a temporary restraining order and a preliminary

25 injunction, as detailed in Plaintiffs’ Motion and the proposed order lodged with the Court.

26

27

6 Counsel for Plaintiffs have worked to identify someone whom this Court can

immediately appoint as an expert. Plaintiffs’ counsel have identified five such experts, and

28 résumés and letters from these individuals are attached collectively as Exhibits 3–7.

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Case 2:20-cv-00901-DJH--DMF Document 18 Filed 05/15/20 Page 13 of 14

1 Dated: May 15, 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

PERKINS COIE LLP By: /s/ Matthew R. Koerner
Jean-Jacques Cabou (#022835) Matthew R. Koerner (#035018) Margo R. Casselman (#034963) Benjamin C. Calleros (#034763) PERKINS COIE LLP 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788 Emma Andersson* eandersson@aclu.org Taylor Brown* tbrown@aclu.org Alejandro Ortiz* ortiza@aclu.org Chase Strangio* cstrangio@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Fl. New York, New York 10004 Telephone: 917-345-1742 Somil Trivedi* strivedi@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th St., NW Washington, DC 20012 Telephone: 202-715-0802 Jared G. Keenan (#027068) jkeenan@acluaz.org Christine K. Wee (#028535) CWee@acluaz.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF ARIZONA 3707 N. 7th Street, Suite 235 Phoenix, AZ 85014 Attorneys for Plaintiffs *Applications for pro hac vice forthcoming.
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Case 2:20-cv-00901-DJH--DMF Document 18 Filed 05/15/20 Page 14 of 14

1

CERTIFICATE OF SERVICE

2

I hereby certify that on May 15, 2020, I electronically transmitted the attached

3 documents to the Clerk’s Office using the CM/ECF System for filing and transmittal of same

4 to: 5 6 7 8 9 10 11 12

Daniel P. Struck, Bar No. 012377 Rachel Love, Bar No. 019881 Nicholas D. Acedo, Bar No. 021644 Jacob B. Lee, Bar No. 030371 STRUCK LOVE BOJANOWSKI& ACEDO, PLC 3100 West Ray Road, Suite 300 Chandler, Arizona 85226 Telephone: (480) 420-1600 dstruck@strucklove.com rlove@strucklove.com nacedo@strucklove.com jlee@strucklove.com Attorneys for Respondent Kline

13

AUSA William Staes

14

Two Renaissance Square

40 N. Central Ave, Suite 1200

15

Phoenix, Arizona 85004

William.Staes@usdoj.gov

16

Attorney for David Gonzlaes, Donald W. Washington and Michael Carvajal

17

18 By: Jennifer McNamara 19 Perkins Coie, LLP

20

21

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23

24

25

26

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Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 1 of 95
EXHIBIT 1

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 2 of 95

1

SUPPLEMENTAL DECLARATION OF JOSEPH GOLDENSON, MD

2

3

1. As detailed in my previously submitted declaration dated May 7, 2020, I am a

4

medical physician with 33 years of experience in correctional health care. I submit

5

this declaration to supplement the information and opinions detailed in my previous

6

declaration.

7

2. In preparing this declaration, I have reviewed the Declaration of Dr. Ivens as well as

8

the declaration of Warden K. Kline and relevant attachments. I have also reviewed

9

daily USMS Quarantine Rosters.

10

3. Based on my review of the submissions of both Dr. Ivens and Warden Kline, existing

11

Quarantine Rosters, the declarations of incarcerated individuals detainees at

12

CoreCivic and my general understanding of correctional health care, it is my

13

professional opinion that adequate measures are not being taken to protect detainees

14

against the risk of COVID-19. It is also my professional opinion that without further

15

review of the policies and practices within CoreCivic, implementation of meaningful

16

social distancing, testing, and hygiene, more and more individuals will contract the

17

virus and become ill.

18

4. According to Warden Kline, as of May 13, 2020, there were 3090 total detainees at

19

the CoreCivic facility. Among those, the Warden emphasizes, only 15 have tested

20

positive for COVID-19. However, based on my review of the quarantine rosters only

21

28 detainees have been tested. It is not possible to draw conclusions about the rate

22

of infection among a concentrated group of people when fewer than 1% of the

23

detainees have been tested for the virus.

24

5. Without widespread testing it is impossible to know the extent of the spread of the

25

virus within a facility. Recent examples highlight how concentrated COVID

26

infection is within correctional facilities. In Marion Correctional Institution, a prison

27

in Ohio, of the 2,500 prisoners housed, 2,300 tested positive for the coronavirus with

28

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Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 3 of 95

1

close to 95% showing no symptoms.1

2

6. Though quarantining individuals exposed to COVID-19 can help minimize the

3

spread of the virus, those quarantining efforts are undermined where groups of

4

people are quarantined together without social distancing, without clean and

5

regularly replaced masks, and where symptomatic individuals are not immediately

6

and adequately isolated from other individuals and tested.

7

7. Dr. I ens declaration and CoreCi ic polic indicate that confirmed and unconfirmed

8

cases of COVID-19 are not housed together but this is not sufficient if unconfirmed

9

cases are held together. In order to prevent the spread of the virus, symptomatic,

10

unconfirmed individuals need to be held in isolation. Without placing unconfirmed

11

and symptomatic cases in isolation, any unconfirmed individual who turns out to be

12

positive will spread the virus to those in close contact who may be negative. CDC

13

guidelines e plicitl state that As soon as an individual develops symptoms of

14

COVID-19, they should wear a face mask (if it does not restrict breathing) and

15

should be immediately placed under medical isolation in a separate environment

16

from other individuals. 2 CoreCivic policy seems to permit cohorting among

17

unconfirmed cases, which can dangerously facilitate the spread of the virus.

18

8. Existing policy documents and Dr. Ivens declaration indicate that though an

19

extensive video system exists to potentially identify who people have had contact

20

with, that knowledge does not prevent the spread of the virus unless those contacts

21

are appropriately, medically isolated (if symptomatic) or quarantined for 14 days (if

22

asymptomatic).

23

9. Existing policy states that in the medical areas, All hea il touched areas such as

24
1 Linda So, In four U.S. state prisons, nearly 3,300 inmates test positive for 25 coronavirus -- 96% without symptoms Reuters (April 25, 2020),
https://www.reuters.com/article/us-health-coronavirus-prisons-testing-in26 idUSKCN2270RX (last accessed May 15, 2020).
2 Centers for Disease Control and Prevention, Interim Guidance on Management 27 of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (May
7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional28 detention.pdf (last accessed May 15, 2020).

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Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 4 of 95

1

doors waiting rooms, bathrooms, chairs, tables, and medical offices will be cleaned

2

immediately following 1030, 1800 & 2300 counts. These areas require more

3

frequent cleaning and disinfecting to effectively stop the spread of COVID-19.

4

10. The fact that CoreCivic is currently not close to capacity could help to facilitate

5

social distancing. However, with detainees held in congested pods, double bunked

6

and without access to proper hygiene, the fact that the facility is not full does not

7

alone lead to social distancing in the ways needed to effectively limit the spread of

8

COVID-19. Rated capacities for correctional facilities were not established with a

9

pandemic requiring social distancing in mind. Images from the facility attached to

10

Warden Kline s declaration sho that e en in larger ph sical spaces, indi iduals are

11

congregating closer than six feet. Individual detainees also report being forced into

12

close proximity due to the layout of the facility, crowded work conditions, or double

13

bunking.

14

11. CoreCi ic s policies, e en for staff in medical units, specif that staff should A oid

15

close contact with sick people. Maintaining 6 feet hen ou can. Staff should be

16

maintaining six feet where possible from all people given how often individuals can

17

be COVID-19 positive but asymptomatic. Instructing staff to only maintain distance

18

from sick people would do nothing to prevent infected asymptomatic staff from

19

spreading COVID-19 to detainees. All staff must wear masks and maintain 6 feet of

20

distance whenever they are around detainees in order to minimize the possibility of

21

transmission of the virus.

22

12. Dr. Ivens notes that per CoreCivic policy individuals are screened for multiple

23

communicable diseases but does not explain how that screening happens. Based on

24

CoreCivic COVID-19 policy documents it appears that screening for COVID is

25

based exclusively on temperature. This is inadequate where screening does not also

26

include questions about symptoms. Many COVID-19 positive cases include

27

individuals who are otherwise symptomatic but do not present with fever.

28

Furthermore, verbal screening must include all symptoms noted by CDC to be

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Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 5 of 95

1

associated with COVID-19 infection (cough, shortness of breath or difficulty

2

breathing, fever, chills, muscle pain, sore throat, and new loss of taste or smell).

3

13. Though Dr. I ens declaration states that staff are all earing masks, in man

4

facilities where policy requires mask-wearing, staff continue not to wear masks or

5

keep masks below their mouth and nose, which does nothing to minimize the spread

6

of COVID-19. Verification that all staff are properly wearing masks when around

7

detainees needs to be obtained.

8

14. Though Dr. Ivens devotes considerable space to arguing that individuals under 50

9

do not face elevated risk of complications related to COVID-19, he ignores that

10

generally the population of individuals incarcerated have physical and health

11

conditions that mirror individuals between and 10 and 15 years older as a result of

12

the physical impacts of life conditions that lead people into prisons and jails.3 As

13

Owen Murray, Chief physician for Correctional Managed Care, University of Texas

14

Medical Branch, which overseas health care for most of that state s prisons,

15

explained: The norm in prisons is to use 55-and-older as the metric associated with

16

older prisoners primarily because the consensus is that our population is 10 years

17

ahead, clinicall , of people on the outside.4

18

15. Based on a review of available information and documents, I reiterate my previous

19

recommendation that an expert should be appointed as soon as possible to oversee

20

operations related to preventing further spread of COVID-19 in CoreCivic.

21

22

23

24

25

26

3 Ann Goetting, The Elderly in Prison: Issues and Perspectives, 20 J. Res. Crime &

Delinq. 291 (1983).

27

4 Michael Olive, Elderly Inmates Burden State Prisons, PEW (March 17, 2016),

https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2016/03/17/elderly-

28 inmates-burden-state-prisons (last accessed May 15, 2020).

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Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 6 of 95

1 I state under penalty of perjury that the foregoing is true and correct

2

3

4

5

6 Executed on:

7 May 15, 2020

By: _________________________

8

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Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 7 of 95
EXHIBIT 2

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 8 of 95

1

SUPPLEMENTAL DECLARATION OF CHRISTINA M. WOEHR

2

3

1. My name is Christina M. Woehr, and I am an Assistant Federal Public Defender in

4

Tucson, Arizona. My background and qualifications are enumerated in my

5

previously submitted declaration in this matter. The statements and opinions in this

6

declaration are my own, and do not represent those of my employer, the FPD.

7

2. I have reviewed the Declaration of Warden K. Kline dated May 14, 2020 and relevant

8

attachments.

9

3. According to Warden Kline’s declaration: “When a detainee who is not in a cohorted

10

status displays symptoms of COVID-19, such as fever over 101 degrees, coughing,

11

body aches, or shortness of breath, they are removed from their pod and quarantined

12

in J Pod pending medical assessment and testing for COVID-19 as deemed necessary

13

by medical staff.” I have had at least one client with symptoms of COVID-19

14

including cough and shortness of breath and have alerted CoreCivic staff to their

15

condition; they have not been tested for COVID-19 or removed from their housing

16

facility.

17

4. A colleague told me on May 14, 2020, that one of her female clients states that she

18

is housed with a symptomatic detainee who has not been removed from her pod or

19

quarantined.

20

5. Although Warden Kline claims that no females have displayed symptoms of

21

COVID-19, I have alerted the facility about one female client who reported both

22

shortness of breath and cough and no action was taken. I contacted the facility about

23

this individual on May 6, 2020, and was told that this was because she had asthma

24

and no fever, body aches, or chills, and that there was no known COVID-19

25

exposure.

26

6. Detainees report that they are not required to wear masks in the day room – only

27

when they leave their pod so they spend large portions of each day in close proximity

28

to others without masks.

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Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 9 of 95

1

7. Warden Kline also stated that “Lima Unit did not go on quarantine status until May

2

1, 2020.” This contradicts an email my office received on Monday April 27, 2020,

3

notifying us that a CCA staff member had tested positive for COVID-19, and as of

4

April 27, 2020, Lima Unit was placed on Quarantine and restricted to their pods due

5

to a staff exposure that tested positive.

6

8. A colleague reported that on May 14, 2020, he was informed by a client that they

7

were not always provided with soap, shampoo or toilet paper. This individual

8

detainee informed my colleague that even after asking for what she needed, it took

9

staff days to bring the items because they appeared to have forgotten.

10

9. One detainee reported to a colleague that he works in the laundry room and last week

11

was told that they were washing the clothing for the individuals quarantined in J-pod

12

with COVID-19. The detainees working in the laundry room were not give any extra

13

protective gear when doing laundry including laundry for quarantined individuals

14

both exposed to and diagnosed with COVID-19.

15

10. According to detainees, social distancing in the day rooms is made difficult not by

16

the overall square footage of the space but due to the fact that the tables and chairs

17

are close together and bolted to the floors so it is difficult to maneuver around the

18

space without coming into close contact with others.

19

11. Warden Kline’s description of CoreCivic claims that the housing units are largely

20

self-contained and there is little detainee traffic in the hallways under regular

21

circumstances is contradicted by the experiences that my colleagues and I have had

22

at the facility. Visiting clients, particularly in segregation, often involves walking

23

through what feels like a congested gauntlet of detainees and staff. Detainees

24

regularly are moved throughout the facility and the units are not self-contained.

25

12. On May 14, 2020, one colleague in my office observed at least four or five CCA

26

staff persons during video initial appearances not wearing any protective equipment

27

while cleaning the video pods between clients and while sitting in the waiting areas

28

with the new arrestees.

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Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 10 of 95

1

13. When my clients are in quarantine status it is my experience that they do not have

2

VTC access and are not permitted to attend court. I had a court appearance for a

3

client that was set for May 13, 2020, which was cancelled because the client was in

4

quarantine because of potential COVID-19 exposure. He was released from

5

quarantine before the full 14-day period had elapsed.

6

14. Another one of my colleagues has a client who similarly reports that his entire cohort

7

was accidentally released from quarantine and then sent back.

8

15. As discussed in greater detail in my previous declaration, many VTCs for legal

9

visitation with our clients have been cancelled. VTC court appearances are given

10

priority, such that legal visitation VTCs generally have to take place after hours.

11

They are also scheduled for either 30- or 60-minute blocks and cut off automatically

12

once the limit is reached.

13 I state under penalty of perjury that the foregoing is true and correct

14

15

16 Executed on:

17 May 14, 2020

By:

18

19

___________________________

20

CHRISTINA WOEHR

21

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Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 11 of 95
EXHIBIT 3

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 12 of 95

May 13, 2020

THE UNIVERSITY of NORTH CAROLINA at CHAPEL HILL
MACNIDER HALL CAMPUS BOX 7240 CHAPEL HILL, NC 27599-7240

Dear Judge Humetewa and Magistrate Judge Fine:

I am willing and able to conduct an in-person inspection of the Central Arizona Florence Correctional Complex to assess its social-distancing and hygienic practices and whether these practices comply with recommendations of public-health experts and are adequate to protect detainees in the facility from COVID-19. I am available to do this on short notice, including the week of May 18, 2020 and am willing to work alone or in consultation with others as the court may prefer. I can produce a written report and/or summary within a few days of the on-site visit, assuming access to needed materials.

In conducting an in-person review, I propose the following as necessary: visiting the medical unit, all units under quarantine, the area where people are processed for intake, areas of recreation, areas where people congregate to eat, any units that are being used for or would be used for medical isolation; interviewing people who are incarcerated, medical staff, and correctional officers; and having access to any documents or policies that are being used to guide decision making relevant to COVID-19.

As to my qualifications, I am a trained PhD-level expert on incarceration and health. I am on faculty at the University of North Carolina at Chapel Hill with over 15 years of experience working in correctional settings, at the intersection of incarceration and health disparities. To date, I have written over 60 articles that have appeared in both the scholarly and popular press, most of which are on the topic of correctional health. These articles have been cited almost 900 citations in subsequent articles in the field. Relevant to this review, I am very familiar with jail, jail healthcare, the built environment, and the very particular reasons why correctional settings can act as a transmission hub for infectious diseases writ large.

I am extremely familiar with the guidelines on management of COVID-19 in Correctional and Detention Facilities provided by the Centers for Disease Control and Prevention and other professional infectious disease groups. I am also very familiar with various state-level policy relevant to COVID-19. I have been collecting data on COVID-19 cases in each state prison system and tracking them over time. Using these data, we have been comparing the case and testing rates for COVID-19 of correctional populations to the general population.

I have reviewed Federal Rule of Evidence 706 and understand that under that rule I may be deposed by either party, cross-examined, and called by the court to testify.

Sincerely,

Lauren Brinkley-Rubinstein, PhD

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 13 of 95
Assistant Professor Social Medicine Center for Health Equity Research University of North Carolina at Chapel Hill Lauren_Brinkley@med.unc.edu

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 14 of 95

Lauren Brinkley-Rubinstein, PhD 333 S. Columbia Street 341b MacNider Hall Chapel Hill, NC 27599
Lauren_Brinkley@med.unc.edu

EDUCATION

05/15 – 06/16

T32 Postdoctoral Fellow, HIV, Incarceration, and Other Complications of Substance Abuse Division of Infectious Diseases, Warren Alpert Medical School Brown University, Providence, RI

01/12 – 05/15

Ph.D., Community Research and Action Vanderbilt University, Nashville, TN

05/13

Graduate Certificate, Scholarship of Teaching and Learning Scholars Vanderbilt, University, Nashville, TN

08/09 – 12/11

M.S., Community Research and Action Vanderbilt University, Nashville, TN

08/04 – 12/06

M.A., Criminal Justice Policy City University of New York (CUNY), John Jay College of Criminal Justice, New York, NY

08/01 – 05/04

B.A., Sociology Western Kentucky University, Bowling Green, KY

PROFESSIONAL EXPERIENCE

04/19—Present

Adjunct Assistant Professor of Health Behavior, Gillings School of Public Health, University of North Carolina at Chapel Hill

06/16 – Present

Assistant Professor of Social Medicine, University of North Carolina at Chapel Hill

06/16 – Present

Core Faculty in the Center for Health Equity Research, University of North Carolina at Chapel Hill

06/16 – Present

Research Fellow at the Sheps Center for Health Services Research, University of North Carolina at Chapel Hill

06/16 – Present

Affiliated Faculty at the Center for Prisoner Health and Human Rights at Brown University

09/17 – Present

Health Criminology Research Consortium Faculty Fellow, Saint Louis University

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09/07 – 6/10

Research Associate, Metro Nashville Public Health Department

08/05 – 12/06

Research Assistant, Vera Institute of Justice

BIBLIOGRAPHY AND SCHOLARLY PRODUCTS

Special Journal Issues Edited

Cloud, D. Brinkley-Rubinstein, L., Bassett, M.T., Graves, J., & Fullilove, R.E. (2020). Special Issue of the American Journal of Public Health: Mass Incarceration as a Socio-Structural Determinant of Health Disparities.

Brinkley-Rubinstein, L., Sadacharan, R., Macmadu, A., & Rich, J.D. (2018). Special Issue of the Journal of Urban Health on Incarceration and Health.

Journal Articles

Nowotny, K., Bailey, Z., Omori, M., & Brinkley-Rubinstein, L. (2020). COVID-19 exposes need for progressive criminal justice reform. American Journal of Public Health

Wurcel, A.G., Dauria, E., Zaller, N., Nijhawan, A., Beckwith, C., Nowotny, K., & BrinkleyRubinstein, L. (2020). Clinical Infectious Diseases. pii: ciaa346. doi: 10.1093/cid/ciaa346.

Zaller, N.D., Nehrer, T., Marshall, S.A., Zielinski, M., & Brinkley-Rubinstein, L. (2020). Barriers and facilitators to linking high-risk jail detainees to HIV pre-exposure prophylaxis. PLOSOne.

Rennie, S., Buchbinder, M., Blue, C., Juengst, E., Brinkley-Rubinstein, L., & Rosen, D.L. (2020). Scraping the web for public health gains: Ethical considerations from a “big data” research project on HIV and incarceration. Public Health Ethics.

Buchbinder, M., Blue, C., Juengst, E., Brinkley-Rubinstein, L., Rennie, S., & Rosen, D.L. (2020). Expert stakeholders’ perspectives on a Data-to-Care strategy for improving care among HIV-positive individuals incarcerated in jails. AIDS Care.

Cloud, D.H., Bassett, M.T., Graves, J., Fullilove, R.E., & Brinkley-Rubinstein, L. (2020). Editors Choice. American Journal of Public Health.

Brinkley-Rubinstein, L. & Cloud, D.H. (2020). Mass incarceration as a driver of socio-structural health inequities. American Journal of Public Health.

Brinkley-Rubinstein, L., Allen, S.A., & Rich, J.D. (2020). Incarceration negatively impacts the health of children. The Lancet Public Health.

Macmadu, A., Goedel, W.C,, Adams, J.W., Brinkley-Rubinstein, L., Green, T.C., Clarke, J.G., Martin, R.A., Rich, J.D., Marshall, B.D.L. (2020). Estimating the impact of wide scale uptake of screening and medications for opioid use disorder in US prisons and jails. Drug and Alcohol Dependence.

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Tomar, N., Brinkley-Rubinstein, L., Ghezzi, M.A., VanDeinse, T.B., Burgin, S., & Cuddeback, G.S. (2019). Internalized stigma and its correlates among justice-involved individuals with mental illness. International Journal of Mental Health. 1-11.
Brinkley-Rubinstein, L. & Johnson, T. (2019). Solitary confinement and health. NC Med J. 80(6). 359360. doi: 10.18043/ncm.80.6.359.
Callander, D., Duncan, D.T., Hyun Park, S., Bowleg, L., Brinkley-Rubinstein, L., Theall, K.P., & Hickson, D.A. (in press). An intersectional analysis of life stress, incarceration and sexual health risk practices among cisgender Black gay, bisexual and other men who have sex with men in the Deep South of the United States: The MARI Study. Sexual Health.
Brinkley-Rubinstein, L., Crowley, C., Montgomery, M., Zaller, N.D., Martin, R., Clarke, J., Dubey, M., Chan, P.A. (in press). Knowledge and interest of pre-exposure prophylaxis among men in a criminal justice setting. Journal of Correctional Healthcare.
Brinkley-Rubinstein, L., Sivaraman, J., Shanahan, M., Proescholdbell, S., Rosen, D.L., Cloud, D.H., Junker, G., & Ranapurwala, S. (2019). Restrictive housing during incarceration is associated with increased post-release risk of death from suicide, homicide, and opioid overdose. JAMA Open Network: 2(10): e1912516. doi:10.1001/jamanetworkopen.2019.12516.
Peterson, M. Rich, J.D., Clarke, J.C., Macmadu, A., Truong, A., Pognon, K., & Brinkley-Rubinstein, L. (2019). Pre-Exposure Prophylaxis Awareness and Interest among Participants in a Medications for Addiction Treatment Program in a Unified Jail and Prison Setting in Rhode Island. Journal of Substance Abuse Treatment. 106:73-78. doi: 10.1016/j.jsat.2019.08.015.
Martin, R., Gresko, S.A., Brinkley-Rubinstein, L., Stein, L., & Clarke, J. (in press). Post-release treatment uptake among participants of the Rhode Island Department of Corrections Comprehensive Medication Assisted Treatment Program. Preventive Medicine. 4 (105766). doi: 10.1016/j.ypmed.2019.105766.
Rhodes B., Costenbader, B., Wilson, L., Hershow, R., Carroll, J., Zule, W., & Brinkley-Rubinstein, L. (2019). Urban, Black and multi-racial individuals are impacted by fentanyl-contaminated heroin. International Journal of Drug Policy. 19 (73).1-6. doi: 10.1016/j.drugpo.2019.07.008.
Brinkley-Rubinstein, L., Peterson, M., Macmadu, A., Truong, A.Q., Clarke, J.C., Marshall, B.D., Green, T.G., Parker, M., Pognon, K., Martin, R., Stein, L., & Rich, J.D. (2019). The benefits and implementation challenges of the first state-wide comprehensive medication for addictions program in a unified jail and prison setting. Drug and Alcohol Dependence. 7;205:107514. doi: 10.1016/j.drugalcdep.2019.06.016.
Hershow, R., Gonzalez, M., Costenbader, B., Golin, C., Zule, W., & Brinkley-Rubinstein, L. (2019). Medical providers and harm reduction views on Pre-Exposure Prophylaxis for HIV prevention among people who inject drugs. AIDS Education and Prevention. 31(4). 363-379. doi: 10.1521/aeap.2019.31.4.363.
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Peterson, M., Rich, J.D., Macmadu, A., Truong, A.Q., Green, T.C., Beletesky, L., Pognon, K. & Brinkley-Rubinstein, L. (2019). One guy goes to jail, two people are ready to take his spot: Perspectives on drug-induced homicide laws among incarcerated individuals. International Journal of Drug Policy.
Zaller, N.D., Zielinski, M., Coffey, J., & Brinkley-Rubinstein, L. (2019). Screening for opioid use disorder in the largest jail in Arkansas: A brief report. Journal of Correctional Healthcare. 25(3). 214218. doi: 10.1177/1078345819852133.
Brinkley-Rubinstein, L., Peterson, M., Zaller, N.D., & Wohl, D.A. (2019). Best practices for identifying men who have sex with men for corrections-based pre-exposure prophylaxis provision. Health & Justice. 7(7). 1-5. doi: doi.org/10.1186/s40352-019-0088-7
Ramsey, S.E., Ames, E.G., Brinkley-Rubinstein, L., Teitelman, A.M., Clarke, J., & Kaplan, C. (2019). Linking Women Experiencing Incarceration to Community-Based HIV Pre-Exposure Prophylaxis Care: Protocol of a Pilot Trial, Addiction Science & Clinical Practice. Addiction Science & Clinical Practice. 14(8), 1-13. doi: 10.1186/s13722-019-0137-5.
Chadwick, C.N., Brinkley-Rubinstein, L., McCormack, M., & Mann, A. (2019). Experiences of HIV stigma in rural Southern religious settings. International Journal of Culture and Mental Health. 11(3), 1-17. doi:10.1080/17542863.2018.1556718.
Zaller, N. & Brinkley-Rubinstein, L. (2018). Incarceration, drug use, and infectious diseases: A syndemic still not addressed. Lancet HIV. 18(12): P1301-1302. doi: 10.1016/S1473-3099(18)30438-3.
Brinkley-Rubinstein, L., Peterson, M., Arnold, T., Nunn, A.S., Beckwith, C.G., Castonguay, B., Junious, E., Lewis, C., Chan, P.A. (2018). Knowledge, interest, and anticipated barriers of pre-exposure prophylaxis uptake and adherence among gay, bisexual, and men who have sex with men who are incarcerated. PLoS One, 13(12):e0205593. doi: 10.1371/journal.pone.0205593.
Peterson, M., Nowotony, K., Dauria, E., Arnold, T., & Brinkley-Rubinstein, L. (2018). Institutional distrust among gay, bisexual, and other men who have sex with men as a barrier to accessing preexposure prophylaxis (PrEP). AIDS Care, 1-6. doi: https://doi.org/10.1080/09540121.2018.1524114.
Beckwith, C.G., Kuo, I., Fredricksen, R., Brinkley-Rubinstein, L., Loeliger, K., Young, R., Cunningham, W., Kahana, S., Franks, J., Zawitz, C., Seal, D., Springer, S., Christopoulos, K., Lorvick, J., Delaney, J.A., Crane, H.M., & Biggs, M.L. (2018). Risk behaviors and HIV care continuum outcomes among criminal justice-involved HIV infected transgender women and cisgender men: Data from the Seek, Test, Treat, and Retain Harmonization Initiative. PLoS ONE, 13(5), e0197730. doi: https://doi.org/10.1371/journal. pone.0197730.
Brinkley-Rubinstein, L., Dauria, E., Tolou-Sham, M., Christopolous, K., Chan, P.A., Beckwith, C.G., Parker, S., & Meyer, J. (2018). The path to implementation of HIV pre-exposure prophylaxis for people involved in criminal justice systems. Current HIV/AIDS Reports, 15(2), 93-95. doi: 10.1007/s11904018-0389-9.
Brinkley-Rubinstein, L., Drucker, E., Cloud, D.C., & Zaller, N. (2018). Opioid use among those who
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have criminal justice experience: Harm reduction strategies to lessen HIV risk. Current HIV/AIDS Reports, 15(3), 225-258. https://doi.org/10.1007/s11904-018-0394-z.
Brinkley-Rubinstein, L., Macmadu, A., Marshall, B.D.L., Heise, A., Ranapurwala, S., Rich, J.A., & Green, T.C. (2018). Risk of fentanyl-involved overdose associated with recent criminal justice system involvement: Findings from a recent outbreak of illicit synthetic fentanyl overdose in 2014 and 2015. Drug and Alcohol Dependence, 185, 189-191. doi: 10.1016/j.drugalcdep.2017.12.014.
Brinkley-Rubinstein, L., McKenzie, M., Macmadu, A., Zaller, N., Larney, S., Dauria, E., & Rich, J. (2018). A randomized, open label trial of methadone continuation versus forced withdrawal in a combined US prison and jail: Findings at 12-months post-release. Drug and Alcohol Dependence, 184, 57-63. doi: 10.1016/j.drugalcdep.2017.11.023.
Brinkley-Rubinstein, L. Sandacharan, R., Macmadu, A., & Rich, J.D. (2018). Introduction to the special issue of the journal of urban health: Incarceration and health. Journal of Urban Health, 95(4), 441-443.
Brinkley-Rubinstein, L., Zaller, N.D., Martino, S., Cloud, D.H., McCauley, E., Heise, A., & Seal, D. (2018). Criminal justice continuum for opioid users at risk of overdose. Addictive Behaviors, 86, 104110. doi: https://doi.org/10.1016/j.addbeh.2018.02.024.
Cloud, D.C., Castillo, T., Brinkley-Rubinstein, L., Dubey, M., & Childs, R. (2018). Syringe decriminalization advocacy in red states: Lessons from the North Carolina Harm Reduction Coalition. Current HIV/AIDS Reports, 15(3), 276-282. doi: 10.1007/s11904-018-0397-9.
Green, T.C., Clarke, J., Brinkley-Rubinstein, L., Marshall, B.D.L., Alexander-Scott, N., Boss, R., & Rich, J. (2018). Reduced post-incarceration fatal overdoses after implementation of a comprehensive program of medications for opioid use disorder in a statewide correctional system. JAMA Psychiatry. 75(4), 405-407. doi: 10.1001/jamapsychiatry.2017.461.
McCauley, E.M., Eckstrand, K., Desta, B., Brockmann, B., Bouvier, B., & Brinkley-Rubinstein, L. (2018). Exploring healthcare experiences for incarcerated individuals who identify as transgender in a southern jail. Transgender Health, 3(1), 34-41. doi: 10.1089/trgh.2017.0046.
Rebeiro, P.F., McPherson, T., Goggins, K., Turner, M.M., Bebawy, S.S., Brinkley-Rubinstein, L., Person, A.K., Sterling, T.R., Kripalani, S., & Pettit, A.C. (2018). Health literacy and demographic disparities in HIV-1 viral suppression. AIDS & Behavior, 22(8), 2604-1614. doi: 10.1007/s10461-0182092-7.
Stopka, T.J., Brinkley-Rubinstein, L., Johnson, K., Chan, P.A., Hutcheson, M., Crosby, R.A., Burke, D., Mena, L., & Nunn, A. (2018). HIV clustering in Mississippi: Spatial epidemiology study to inform implementation science in the Deep South. JMIR, 4(2), e35. doi: 10.2196/publichealth.8773.
Arnold, T., Brinkley-Rubinstein, L., Chan, P., Perez-Brumer, A., Mena, L., Beauchamps, L., Bologna, E., Johnson, K., & Nunn, A. (2017). Social, structural, behavioral, and clinical factors influencing retention in pre-exposure prophylaxis (PrEP) care in Mississippi. PLOSOne, 12(2), e0172354. doi: 10.1371/journal.pone.0172354.
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Zaller, N.D., Cloud, D.H., Brinkley-Rubinstein, L., Martino, S., Bouvier, B., & Brockmann, B. (2017). The importance of Medicaid expansion for criminal justice populations in the South. Health & Justice, 5(1), 2. doi: 10.1186/s40352-017-0047-0.
Brinkley-Rubinstein, L., Cloud, D.H., Davis, C., Zaller, N., Delany-Brumsey, A., Pope, L., Bouvier, B., & Rich, J.D. (2017). Addressing excess risk of overdose among recently incarcerated people in the USA: Harm reduction interventions in correctional settings. Special Issue: “Translating Research into Policy to Advance Correctional Health” of the International Journal of Prisoner Health, 13(1), 25-31. doi: 10.1108/IJPH-08-2016-0039.
Brinkley-Rubinstein, L., Rosen, D.L., Christopher, P., Bazerman, L., & Beckwith, C. (2017). Long acting injectable anti-retroviral therapy: An opportunity to improve HIV treatment and reduce HIV transmission among persons being released from prison facilities. Clinical Infectious Diseases, 65(7), 1247-1248. doi: 10.1093/cid/cix493.
Kipp, A.M., Rebeiro, P.F., Shepherd, B.E., Brinkley-Rubinstein, L., Turner, M., Bebawy, S., Sterling, T.R., & Hulgan, T. (2017). Daily marijuana use is associated with missed clinic appointments among HIV-infected persons engaged in HIV care. AIDS & Behavior, 21(7), 1996-2004. doi: 10.1007/s10461017-1716-7.
Nunn, A, Brinkley-Rubinstein, L., Oldenberg, C., Mayer, K., Mimiaga, M., Patel, R., & Chan, P. (2017). Defining the HIV pre-exposure prophylaxis care continuum. AIDS, 31(5), 731-734. doi: 10.1097/QAD.0000000000001385.
Nunn, A., Brinkley-Rubinstein, L., Towey, C., Yolken, A., Trooskin, S., Smith, E., Beckwith, C., Rose, J., & Chan, P. (2017). Latent class analysis of acceptability and willingness to identify individuals for self-HIV testing in community settings. Journal of the International AIDS Society, 20(1). 1-9. doi: 10.7448/IAS.20.1.21290.
Tomar, N., Ghezzi, M.A., Brinkley-Rubinstein, L., Blank Wilson, A., Van Deinse, T.B., Burgin, S., & Cuddeback, G.S. (2017). Statewide mental health training for probation officers: Improving knowledge and decreasing stigma. Health & Justice. 5(1), 11. doi: 10.1186/s40352-017-0057-y.
Brinkley-Rubinstein, L., Parker, S., Chan, P., Gjelsvik, A., Mena, L., Marshall, B., Harvey, J., Beckwith, C., Riggins, R. & Nunn, A. (2016). Condom use and incarceration among STI clinic attendees in the Deep South. BMC Public Health, 16(1), 971. doi: 10.1186/s12889-016-3590-z.
Marshall, B.D.L., Perez-Brumer, A.G., MacCarthy, S., Mena, L., Chan, P.A., Towey, C., Barnett, N., Parker, S., Barnes, A., Brinkley-Rubinstein, L., Rose, J.S., & Nunn, A. (2016). Individual and partnerlevel factors associated with condom non-use among African American STI clinic attendees in the Deep South: An event-level analysis. AIDS & Behavior, 20(6), 1334-1342. doi: 10.1007/s10461-015-1266-9.
Rich, J.D., Beckwith, C., Macmadu, A., Marshall, B., Brinkley-Rubinstein, L., Milloy, M.J., Atwoli, L., Sanchez, J. & Altice, F. (2016). Clinical care of the incarcerated patient with HIV, Hepatitis B and C, and TB. Lancet, 388(10049), 1103-114 doi: 10.1016/S0140-6736(16)30379-8.
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Brinkley-Rubinstein, L. (2015). Understanding the effects of multiple stigmas among formerly incarcerated HIV-positive African American men. AIDS Education & Prevention, 27(2), 168-180. doi: 10.1521/aeap.2015.27.2.167.
Brinkley-Rubinstein, L., Bethune, M., & Doykos, B. (2015). HIV health literacy as a process: A casemanagement perspective. Social Work in Public Health, 30(3), 250-259. doi: 10.1080/19371918.2014.994724.
Griffith, D.M., Brinkley-Rubinstein, L., Thorpe, R., Bruce, M. & Metzl, J.M. (2015). The interdependence of African American men’s definitions of manhood and health. Journal of Family & Community Health, 38(4), 284-296. doi: 10.1097/FCH.0000000000000079.
Brinkley-Rubinstein, L., & Craven, K. (2014). HIV risk and stigma: A latent class analysis of perceptions among youth in post-apartheid South Africa. PLOSOne, 9(2), e89915. doi: 10.1371/journal.pone.0089915.
Craven, K., McCormack, M. & Brinkley-Rubinstein, L. (2014). Navigating the margins: How a culturally responsive and relevant pedagogical framework can inform the creation of a positive developmental context for African American male youth. Journal of Interdisciplinary Studies in Education, 2(2), 61-80.
Doykos, B., Brinkley-Rubinstein, L., Craven, K., McCormack, M. & Geller, J. (2014). Leveraging identity, gaining access: Explorations of self in diverse field-based research settings. Journal of Community Practice, 22(1-2), 130-149.
McCormack, M.M., Brinkley-Rubinstein, L., & Craven, K. (2014). Leadership religiosity: A critical analysis of leadership within a juvenile justice community based organization. Journal of Leadership & Organization Development, 35(7), 622-636.
Meinbresse, M., Brinkley-Rubinstein, L., Grassette, A., Benson, J., Hall, C., Hamilton, R., Malott, M. & Jenkins, D. (2014). Exploring the experiences of violence among individuals who are homeless using a consumer-led approach. Journal of Violence and Victimization, 29(1), 122-136.
Brinkley-Rubinstein, L. (2013). Incarceration as a catalyst for worsening health. Health & Justice, 1(3), 1-17. doi: 10.1186/10.1186/2194-7899-1-3.
Brinkley-Rubinstein, L., Chadwick, C., & Graci, M. (2013). The connection between serious life events, anti-retroviral adherence, and mental health among HIV-positive individuals in the Western Cape, South Africa. AIDS Care, 25(12), 1581-1585. doi:10.1080/09540121.2013.793270.
Brinkley-Rubinstein, L., Craven, K.L., & McCormack, M.M. (2013) Shifting perceptions of race and incarceration as adolescents age: The importance of understanding the ways in which social environment informs racial identity. Journal of Child and Adolescent Social Work, 31(1), 25-38. doi: 10.1007/s10560013-0306-4.
Brinkley-Rubinstein, L., & Turner, W.L. (2013). Health impact of incarceration on HIV positive African American males: A qualitative exploration. Journal of AIDS Patient Care and STDs, 27(8), 450-
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458. doi: 10.1089/apc.2012.0457.
Slobogin, C. & Brinkley-Rubinstein, L. (2013) Putting desert in its place. Stanford Law Review, 65(2), 1-52.
Brinkley-Rubinstein, L., & Cornett, M.B. (2011). Is Mandatory HIV testing a violation of prisoners’ rights? An examination of the existing prison testing policies. Health Law & Policy Forum, 3(1), 35-37.
Books and Chapters
Brinkley-Rubinstein, L. (2018). Prison populations: Epidemiology of HIV/AIDS. In T.J. Hope, M. Stevenson & D. Richman (Eds.), Encyclopedia of AIDS (pp.1175-1178). New York, NY: Springer.
McCauley, E. & Brinkley-Rubinstein, L. (2017). Institutionalization and incarceration of LGBT individuals. In K. Eckstrand & J. Potter (Eds.) Trauma, resilience, and health promotion for LGBT patients, (pp.149-161). New York, NY: Springer.
Barnes, S., Brinkley-Rubinstein, L., Doykos, B., Martin, N., & McGuire, A. (2015). Academics in action! A model for community-engaged research, teaching, and service. New York, NY: Fordham University Press.
Barnes, S., Brinkley-Rubinstein, L., Doykos, B., Martin, N., & McGuire, A. (2015). Introduction. In S. Barnes, L. Brinkley-Rubinstein, B. Doykos & N. Martin (Eds.) Academics in action! A model for community-engaged research, teaching, and service, (pp.1-26). New York, NY: Fordham University Press.
Brinkley-Rubinstein, L., Chatman, V., Lunn, L. Mann, A. & Heflinger, C.A. (2015). Putting Boyer’s four types of scholarship into practice: A community research and action perspective on public health. In S. Barnes, L. Brinkley-Rubinstein, B. Doykos & N. Martin (Eds.) Academics in action! A model for community-engaged research, teaching, and service, (pp.124-141). New York, NY: Fordham University Press.
Brinkley-Rubinstein, L., & Mann, A. (2014). The complexity of culture: Culture’s impact on health disparities. In R. Gurung (Ed.), Multicultural approaches to health and wellness in America, (pp. 29-50). Westport, CT: Praeger.
Brinkley-Rubinstein, L. (2014). Historical perspectives on race and the war on drugs and prolonged effects of racially biased laws and policies. In S. Bowman (Ed.), Color behind bars: Racism in the U.S. prison system (pp. 171-190). Santa Barbara, CA: ABC-CLIO. Brinkley-Rubinstein, L., & Turner, W.L. (2013). Creating healthier communities: Advancing from science to policy to practice. In K. Fitzpatrick (Ed.), Poverty and health: A crisis among America’s most vulnerable, (pp.241- 258). Westport, CT: Praeger.
Commentaries
Brinkley-Rubinstein, L. (2014). Drug users need treatment, not punishment, The Tennessean, 14A.
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Brinkley-Rubinstein, L. (2013). Three possible strategies for eliminating racial bias in the criminal justice system, The Tennessean, 16A.

GRANTS

Active

Langeloth Foundation

6/2020 – 5/20201

$20,000

Principal Investigator (no salary support)

The COVID Prison Project

These funds will be used to launch data collection of prison COVID cases across the country.

U01DA050442 (Brown University)

08/2019 – 07/2024

$11,457,579

National Institute of Drug Abuse

Multiple Principal Investigator (15% of salary)

Using Implementation Interventions and Peer Recovery Support to Improve Opioid Treatment

Outcomes in Community Supervision

We propose to conduct an implementation and outcome evaluation to improve medication assisted

treatment uptake at sites in North Carolina, Rhode Island, and Pennsylvania.

UG1DA050072-01 (Yale University)

08/2019 – 07/2024

$11,828,050

Site Principal Investigator and Co-Investigator (20% of salary)

Transitions Clinic Network: Post Incarceration Treatment, Healthcare, and Social Support Study

We propose to adapt the Transitions Clinic Network model to use community health workers to connect

individuals leaving jails in New Haven, Durham, San Juan, the Bronx, and Milwaukee to community-

based medication assisted treatment.

R01MD013573 (University of North Carolina, Chapel Hill)

09/2018 – 08/2023

$2,721,528

National Institute of Minority Health Disparities

Principal Investigator (20% of salary)

The Southern Pre-Exposure Prophylaxis (PrEP) Cohort Study: Longitudinal PrEP initiation and

adherence among Parolees.

In this study, we are conducting an observational PrEP cohort study among parolees in three Southern

states: NC, KY, and FL.

U54MD002329

11/2017 – 10/2022

$1,402,893

National Institute of Minority Health Disparities (University of Arkansas for Medical Sciences)

Co-Investigator (20% of salary)

Linking High-Risk Jail Detainees to HIV pre-exposure prophylaxis: Pre-Exposure

Prophylaxis (PrEP)-LINK

In this study, we are assessing the facilitators and barriers to PrEP uptake among high-risk jail detainees

to optimize a future PrEP intervention.

Brinkley-Rubinstein 9

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 23 of 95

R01AI129731 (University of North Carolina, Chapel Hill)

07/2017 – 06/2021

$681,959

National Institute of Allergy and Infectious Disease

Co-Investigator (7% of salary)

Leveraging Big Data to understand and improve continuity of care among HIV positive jail

Inmates

In this study, we are developing a database combining jail and state HIV records, use the database to

examine burden of known HIV in county jails, assess inmates’ use of HIV services before, during and

after incarceration, and identify inmate and facility factors associated with services before, during and

after incarceration.

R34MH114654 (Brown University)

07/2017 – 06/2020

$681,959

National Institute of Drug Abuse

Co-Investigator (5% of salary)

Linkage to Community-Based HIV Pre-Exposure Prophylaxis Care Among at Risk

Women upon Release from Incarceration

In this study, we will test a HIV prevention intervention among women at the Rhode Island Department

of Corrections.

Completed

Robert Wood Johnson Foundation (University of North Carolina at Chapel Hill)

11/2018-11/2019

$149,245

Principal Investigator (no salary support)

Focusing a special issue of the American Journal of Public Health on how incarceration

exacerbates health disparities

This grant funds a special issue of the American Journal of Public Health and pays for the coordination of

the issue.

R21DA043487-Supplement

10/2018 – 09/2019

$150,000

Co-Investigator (7% of salary)

Adapting an Agent Based Model to Understand the Impact of Medication Assisted Treatment

Accessibility during Prison and Jail on Overdose Outcomes in the Community

In this study, we are using agent-based modeling to demonstrate the effect that access to medication

assisted treatment while incarcerated has on overdose outcomes in the community post-release.

Center for AIDS Research Supplement

09/2018 – 08/2019

$150,000

Co-Principal Investigator (15% of salary)

PrEP-aring for Prison Release

In this study, we are conducting qualitative research on how to adapt a community health worker

intervention to aid in linkage to PrEP care after release from prison.

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R01MD010403 (Yale University)

09/2016 – 08/2019

$1,314,190

National Institute of Minority Health Disparities

Co-Investigator (9.8% of salary)

Building Resilient Neighborhoods and Positive Social Networks to Prevent Gun Violence

We are applying a novel framework to mitigate the impact of gun violence in New Haven

neighborhoods by defining gun violence as a chronic, manmade disaster, where prevention efforts can

be planned and include the participation of neighborhood residents most impacted.

R21DA043487 (Brown University)

08/2017 – 07/2019

$476,602

National Institute of Drug Abuse

Co-Investigator (10% of salary)

Evaluating the implementation and impact of a novel medication assisted treatment program in a

unified jail and prison system

In this study, we are evaluating the implementation and impact of a comprehensive medication assisted

treatment program at the Rhode Island Department of Corrections.

The John and Laura Arnold Foundation (Brown University)

08/2017 – 07/2019

$296,234

Improving the Treatment of Opioid Use Disorders among People

Transitioning through Correctional Settings

Co-Investigator (10% of salary)

In this study, are evaluating the post-release treatment follow-up of individuals who participate in the

Rhode Island Department of Corrections comprehensive medication assisted treatment program.

UNC Committee of Faculty Research and Scholarly Leaves $10,000 Principal Investigator (no salary support) Small Grant to supplement other research activities This is an internal UNC grant that will be used to pay for research assistance.

01/2018 – 01/2019

UNC Center for AIDS Research Developmental Award

01/2018 – 12/2018

Principal Investigator (no salary support)

Exploring the use of pre-exposure prophylaxis among people who inject drugs in Durham County,

North Carolina

This project includes conducting qualitative interviews with people who inject drugs to explore HIV risk

behaviors, drug use trajectory, and interest in pre-exposure prophylaxis.

R25DA037190 (Brown University)

National Institute of Drug Abuse

05/2015 – 05/2017

Trainee

Criminal Justice Research Program on Substance Use and HIV

This program provided mentoring to promote training in clinical research for new investigators in

clinical research with a focus on HIV/AIDS, criminal justice, substance use, mental illness, global health

and health disparities.

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R25DA035692 (University of California, Los Angeles)

National Institute of Drug Abuse

05/2015 – 05/2017

Trainee

HIV/AIDS, Substance Abuse and Trauma Training Program

This program provided multi-disciplinary, state-of-the-art training to better equip postdoctoral fellows

and early career investigators to submit and receive grant funding.

T32DA013911 (Brown University)

National Institute of Drug Abuse

05/2015 – 06/2016

Trainee

Training in HIV and Other Infectious Consequences of Substance Abuse

This training program provided multi-disciplinary training in clinical research in the areas of prevention,

diagnosis and treatment of HIV and other infectious aspects of substance abuse.

INVITED PRESENTATIONS

Brinkley-Rubinstein, L. (2019, October). Incarceration as a Social Determinant of Health. Invited talk at University of Buffalo, Buffalo, NY.

Brinkley-Rubinstein, L. (2019, March). HIV infection among people who are incarcerated. Invited talk at the Southeast AIDS Education and Training Center coordinated by Vanderbilt University, Nashville, TN.

Brinkley-Rubinstein, L. (2019, March). Barriers and facilitators to implementation of a medication assisted treatment program in a statewide unified correctional setting in Rhode Island. Invited talk at the Mental Health Seminar Series at Duke University, Durham, NC.

Brinkley-Rubinstein, L. (2019, January). Fentanyl-contaminated heroin among communities of color. Invited talk at the Drug Policy Alliance, New York, NY.

Brinkley-Rubinstein, L. (2018, October). Opioid use among incarcerated populations. Invited talk at St. Louis University, St. Louis, MO.

Brinkley-Rubinstein, L. (2018, October). Initiating medication assisted treatment in incarcerated populations. Invited talk at the Vermont Center on Behavior and Health, Burlington, VT.

Brinkley-Rubinstein, L. (2018, September). Understanding substance use, mental illness, and involvement in the criminal justice system: Theory, interventions, and opportunities. Invited talk at the AHEC, Raleigh, NC.

Brinkley-Rubinstein, L. (2018, June). Introduction to the social determinants of health and health equity. Center for Health Equity Research Summer Training Program, University of North Carolina at Chapel Hill, Chapel Hill, NC.

PEER-REVIEWED CONFERENCE PRESENTATIONS

Brinkley-Rubinstein, L. (2019, March). Solitary Confinement is Associated with Increased Risk of

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Death. Presented at the Academic and Health Policy Conference on Correctional Health. Las Vegas, NV.
Neher, T.L., Brinkley-Rubinstein, L., Marshall, S.A., Zielinski, M., & Zaller, N.D. (2018, November). HIV risk factors and PrEP knowledge of incarcerated women in a county jail. Presented at the meeting of the American Public Health Association, San Diego, CA.
Macmadu, A., Brinkley-Rubinstein, L, & Rich, J. (2018, March). Fentanyl. Paper presented at the Academic and Health Policy Conference on Correctional Health. Houston, TX.
Ashkin, E., Rosen, D., & Brinkley-Rubinstein, L. (2018, March). NC Re-missioning. Presented at the Academic and Health Policy Conference on Correctional Health. Houston, TX.
Zaller, N., Brinkley-Rubinstein, L., Cloud, D., & Peterson, M. (2018, March). The CJ continuum for opioid users at risk of overdose. Presented at the Academic and Health Policy Conference on Correctional Health. Houston, TX.
Brinkley-Rubinstein, L. (2017, March). Exploring knowledge, interest, and barriers related to PrEP use among criminal justice involved men who have sex with men. Presented at the Academic and Health Policy Conference on Correctional Health. Atlanta, GA.
Marshall, B.D.L., King, M., Macmadu, A., Brinkley-Rubinstein, L., Sanchez, J., Beckwith, C.G., Altice, F.L., & Rich, J.D. (2016, June). The effect of incarceration on HIV care continuum outcomes in the United States: An agent-based modeling approach. Presented at the Epidemiology Congress of the Americas, Miami, FL.
Brinkley-Rubinstein, L. & Eckstrand, K. (2015, November). Exploring the health experiences of transgender individuals in a local jail. Presented at the American Public Health Association Annual Meeting, Chicago, Illinois.
Brinkley-Rubinstein, L. (2015, March). Health and incarceration of HIV positive individuals. Presented at the Academic and Health Policy Conference on Correctional Health. Boston, Massachusetts.
Brinkley-Rubinstein, L. (2014, November). Measuring the health impact of incarceration on the HIV positive individuals. Presented at the American Public Health Association Annual Meeting, New Orleans, Louisiana.
Brinkley-Rubinstein, L., & Griffith, D. (2014, November). How do African American men define health and what implications do these definitions have for health practices? Presented at the American Public Health Association Annual Meeting, New Orleans, Louisiana.
Brinkley-Rubinstein, L. (2014, October). The usefulness of mixed methods in assessing the health of formerly incarcerated individuals. Presented at the American Evaluation Association Annual Meeting, Denver, Colorado.
Brinkley-Rubinstein, L. (2014, March). Measuring the health impact of incarceration on HIV positive
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individuals. Presented at the Academic and Health Policy Conference on Correctional Health, Houston, Texas.
Griffith, D.M., Brinkley-Rubinstein, L., & Metzl, J. (2013, December). How do African American men define health and what implications do these definitions have for health practices? Presented at the meeting of International Congress on Men’s Health, Arlington, Virginia.
Brinkley-Rubinstein, L. (2013, October). Dual identities of formerly incarcerated HIV positive individuals and the impact on health. Presented at the American Public Health Association Annual Meeting, Boston, Massachusetts.
Brinkley-Rubinstein, L. & Turner, W.L. (2013, August). Incarceration as an exacerbation of worsening health among African American HIV positive men. Presented at the Annual Meeting of the American Sociological Association, New York, New York.
Brinkley-Rubinstein, L. (2013, March). Difficult pasts, uncertain futures: An exploration of the lived experiences of formerly incarcerated HIV positive African American males. Presented at the 5th Annual Health Disparities Conference at Teachers College, Columbia University, New York, New York.
Brinkley-Rubinstein, L. & Turner, W.L. (2013, March). Understanding the compounding effect of stigma among formerly incarcerated HIV positive African Americans: A qualitative exploration. Presented at the 6th Academic and Health Policy Conference on Correctional Health, Chicago, Illinois.
Brinkley-Rubinstein, L. & Mann, A. (2013, February). The complexity of culture: Using an intersectional and social ecological lens to examine the impact of culture on health disparities. Presented at the Cross Cultural Health Care Conference, Honolulu, Hawaii.
Brinkley-Rubinstein, L. (2012, October) Incarceration as a catalyst for worsening health. Presented at the Annual Meeting of the American Public Health Association, San Francisco, CA.
Meinbresse, M. & Brinkley-Rubinstein, L. (2012, September). Exploring the incidence of violence among high-risk homeless populations. Presented at the National Association for Community Health Centers Annual Conference. Orlando, FL.
Craven, K., Geller, J., Doykos, B., O’Connor, B., Brinkley-Rubinstein, L. & Bess, K. (2012, February). Contextual barriers to collective action and community organizing in a high poverty, high crime neighborhood. Presented at the Annual Meeting of the Association of American Geographers, New York, NY.
Brinkley-Rubinstein, L., Craven, K.L. & McCormack, M.M. (2011, November). Incarceration as exposure: An assessment of the efficacy of community organization to mediate involvement with the juvenile justice system. Presented at the International Conference on Urban Health, Belo Horizonte, Brazil.
Brinkley-Rubinstein, L. (2011, August). The cascading effects of social capital: From parenting to mediating sexual behavior. Presented at the Society for the Study of Social Problems Annual Meeting. Las Vegas, NV.
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Brinkley-Rubinstein, L. (2011, July) Type of charge most often associated with HIV positive prisoners. Presented at the International AIDS Society Biannual Meeting. Rome, Italy.
DiPietro, B. & Brinkley-Rubinstein, L. (2011, June). Show me the (UDS) Data: Difference between homeless & non-homeless health center patients. Presented at the National Health Care for the Homeless Conference & Policy Symposium. Washington, DC.
Brinkley-Rubinstein, L. (2011, June). Investigating the premises of empirical desert. Presented at the Law and Society Annual Meeting. San Francisco, CA.
Brinkley-Rubinstein, L. (2011, May). Perceived barriers to successful reintegration after release from prison. Presented at the 7th Annual International Congress of Qualitative Inquiry. Champaign-Urbana, IL.
Brinkley-Rubinstein, L., Rhodes, L., & O’Connor, B. (2011, April). Examining spatial distribution of incidence rates of sexually transmitted diseases and socio-economic measures. Presented at the American Association of Geographers Annual Meeting, Seattle, WA.
Rhodes, J., & Brinkley-Rubinstein, L. (2010, October). Examining incidence rates of sexually transmitted infections and socio-economic measures: A cross-sectional study in Nashville/Davidson County, TN. Presented at the 9th Annual International Conference on Urban Health, New York City, NY.
Brinkley-Rubinstein, L. (2010, July). Demographics and other characteristics associated with increased risk of incarceration and re-incarceration among HIV positive individuals. Presented at the International AIDS Conference, Vienna, Austria.
Brinkley-Rubinstein, L., Rhodes, J., McKelvey, B., & Solivan, A. (2010, June) Demographics and characteristics associated with the incidence of HIV among youth. Presented at the NIMH Annual International Research Conference on the Role of Families in Preventing and Adapting to HIV/AIDS, Nashville, TN.
Brinkley-Rubinstein, L. & Rhodes, J. (2010, March). Syphilis and HIV co-infection in Nashville/Davidson Co., Tennessee: A case for improving syphilis and STI testing among persons living with HIV. Presented at the 4th Annual Southeast Regional HIV/AIDS Conference sponsored by the Jefferson Comprehensive Care System, Inc., Little Rock, AR.
Brinkley-Rubinstein, L., & Rhodes, J. (2010, March). Early Syphilis and HIV syndemic in Nashville/Davidson Co., Tennessee: Implications for improving syphilis screening for people living with and at risk for HIV. Presented at the National STD Prevention Conference, Atlanta, GA.
TEACHING ACTIVITIES
University of North Carolina, Chapel Hill, Chapel Hill, NC Instructor of Record, Fall 2018
• Taught Social and Health Systems III to 16 second year medical students. This class focused on incarceration and health and covered the following subtopics: women and incarceration,
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substance use, HIV/AIDS, post-release healthcare access issues, how incarceration affects known social determinants of health (housing, employment, etc.), and healthcare delivery in correctional settings.

University of North Carolina, Chapel Hill, Chapel Hill, NC Instructor of Record, Fall and Spring, 2017, 2018
• Taught Social and Health Systems I & II to 15 first year medical students • Lectures given encompassed topics such as: influence of race, culture, gender, and sex on health
outcomes and health disparities; health reform; bioethics; and health policy as clinically relevant for medical professionals.

Brown University, School of Public Health, Providence, RI Co-Instructor of Record, Spring, 2016
• Taught the Tri-Lab: Designing better education for prisoner and community health • Gave lectures related to race and incarceration, community-based participatory research
methods, and the impact of incarceration on health • Mentored student groups who were designing education interventions to improve prisoner health.
Group topics included: Hepatitis C, PrEP, navigating the healthcare system post-release, and PTSD

Vanderbilt University, Department of Human and Organizational Development, Nashville, TN Co-Instructor of Record, Spring, 2015
• Taught HOD 3600: Ethnography • Gave lectures related to field work, data analysis, ethnographic methods • Mentored students to develop ethnographic research projects and research proposals

HONORS AND AWARDS

2014- 2016

Recipient, Langeloth Scholarship for the Academic and Health Policy Conference on Correctional Health

2015

Participant, SBSRN Mentor Day

2015

Winner, Newbrough Award for best scholarly work in the Department of Human and Organizational Development at Vanderbilt University

2013-2014

Winner, Society for Community, Research & Action Southeast region graduate student of the year

2012-2014

Recipient, Peabody College Honor Scholarship

2010-2014

Recipient, Peabody College tuition and stipend award

2014

Recipient, of a Vanderbilt Graduate School dissertation enhancement grant

2013

Recipient, Social Justice Institute Training for Mass Incarceration Scholarship

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2012-2013

Nominated, Vanderbilt University Teaching Award

PROFESSIONAL SERVICE

Associate Editorial Board: BMC Public Health, 2017-Present; BMC Infectious Diseases 2018-Present

Editorial Board: Health & Justice 2016-Present

Peer Reviewer 2018-2019: PLOSone, Journal of Healthcare for the Poor and Underserved, SAHARA-J: Journal of Social Aspects of HIV/AIDS, AIDS Care, HIV/AIDS and Social Services, Health & Justice, Drug and Alcohol Dependence, Addictive Behaviors, Preventive Medicine, American Journal of Public Health, American Journal of Preventive Medicine, Annals of Internal Medicine, AIDS & Behavior, American Journal of Public Health

Local Host Committee: Academic and Health Policy Conference on Correctional Health 2020 annual meeting

Executive Steering Committee Member: Justice, Substance Use, HIV/AIDS Involved Populations InterCFAR working group

DSMB Member: Integrated Treatment Adherence Program for Bipolar Disorder at the Time of Prison Release (R34MH117198; PI: Weinstock, Lauren)

DSMB Member: Kentucky Communities and Researchers Engaging to Halt the Opioid Epidemic (CARE2HOPE) (UH3DA44798; PIs: Young, April & Cooper, Hannah)

PROFESSIONAL AFFILIATIONS

American Public Health Association International Association of Urban Health International AIDS Society Society for Community Research and Action Academic Consortium on Criminal Justice and Health

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EXHIBIT 4

Case 2:20-cv-00901-DJH--DMF

Document 18-1

Filed 05/15/20

PaRgieck3y2Coamf 9pl5ain, PhD
Ricky.Camplain@nau.edu 928-523-5165 office 505-658-5262 cell PO Box 4065 Flagstaff, AZ 86011

Dear Judge Humetewa and Magistrate Judge Fine:
I am willing and able to conduct an in-person inspection of the Central Arizona Florence Correctional Complex to assess its social-distancing and hygienic practices and whether these practices comply with recommendations of public-health experts and are adequate to protect detainees in the facility from COVID-19. I am available to do this on short notice, including the week of May 18, 2020, and am willing to work alone or in consultation with others as the court may prefer. I can produce a written report and/or summary within a few days of the on-site visit, assuming access to needed materials. I have also reviewed Federal Rule of Evidence 706 and understand that under that rule I may be deposed by either party, cross-examined, and called by the court to testify.
In conducting the in-person inspection, I would suggest:
• Visiting the medical unit, any unit under quarantine, intake and processing areas, and admission/intake units for new admittees
• Conduct interviews of inmates and correctional officers • Assessment of personal protective equipment (PPE) supplies • Review the facility’s outbreak and disaster preparedness plans, COVID-19 response and
mitigation plans, cleaning and disinfecting practices, and testing and screening procedures
As to my qualifications, I am a trained PhD-level epidemiologist with eight years of public health experience. I have conducted public health research and program evaluations in correctional institutions in the state of Arizona since 2017.
I am extremely familiar with the guidelines on management of COVID-19 in Correctional and Detention Facilities provided by the Centers for Disease Control and Prevention (CDC, https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf).
I have recently compiled available COVID-19 response documents from the Arizona County Jails and have compared facilities’ responses to the pandemic to best practices provided by the CDC. During the COVID-19 pandemic, I have additionally conducted surveillance of COVID-19 testing in Arizona prisons via publicly available data sources. Through this work, I have provided evidence for comprehensive COVID-19 diagnostic testing in prisons as diagnostic testing is a right afforded by the Eighth and Fourteenth Amendments of the US Constitution (work currently under review).
I currently assist with the Coconino County COVID-19 Response in infectious disease epidemiology, healthcare capacity surveillance, disease predictions, and public health mitigation. We have compiled best practices for the mitigation of the spread of COVID-19 for Coconino County and multiple sectors of our community, including among incarcerated populations. Please fine the executive summary of the report here: https://www.coconino.az.gov/DocumentCenter/View/34829/Corona-Virus-ResponsePlan-_Coconino-County-_Exec-Summary).
Sincerely,

Ricky Camplain, PhD

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 33 ofR9ic5ky Camplain

Physical Location 1395 S. Knoles Drive ARD Building, Suite 140 Flagstaff, AZ 86011 Ricky.Camplain@nau.edu

Ricky L. Camplain, PhD, MSPH

Mailing Address PO Box 4065
Northern Arizona University Flagstaff, AZ 86011-4065 (928) 523-5165

CURRENT POSITION

June 2019-Present

Assistant Professor Center for Health Equity Research, Department of Health Sciences Northern Arizona University http://cher.nau.edu/index.php/ricky-camplain-phd/

EDUCATION

2017-2019

Postdoctoral Scholar, Health Equity Northern Arizona University, Center for Health Equity Research, Flagstaff, AZ

2015-2017

PhD in Epidemiology University of North Carolina at Chapel Hill, Gillings School of Global Public Health, Chapel Hill, NC

2012-2014

MSPH in Epidemiology University of North Carolina at Chapel Hill, Gillings School of Global Public Health, Chapel Hill, NC

2007-2011

Bachelor of Arts in Chemistry, Minor in Political Science University of New Mexico, Albuquerque, NM

OTHER TRAINING AND FELLOWSHIPS

2020

Promoting Indigenous Research Leadership Scholar, Center for American Indian and Rural Health Equity, Montana State University, Bozeman, MT

2018

Physical Activity and Public Health Research Course Fellow, Centers for Disease Control and Prevention and the University of South Carolina, Columbia, SC

2018

Indigenous Substance Abuse, Medicines, and Addictions Research Training Program (ISMART) Fellow, The Indigenous Wellness Research Institute at the University of Washington, Seattle, WA

2018

Selected Scholar, Health Equity Leadership Institute (HELI), the University of Wisconsin-Madison and the University of Maryland, Maryland Center for Health Equity in the School of Public Health, Madison, WI

2014

Centers for Disease Control and Prevention Millennial Health Leadership Summit, Atlanta, GA

2010-2011 University of Maryland Summer Training and Research (UM STAR) Scholar, College Park, MD

PROFESSIONAL EXPERIENCE

June 2019 - Present

Assistant Professor University of Northern Arizona, Center for Health Equity Research, Department of Health Sciences, Flagstaff, AZ

June 2017 - May 2019

Postdoctoral Scholar University of Northern Arizona, Center for Health Equity Research, Flagstaff, AZ

August 2012 - May 2017

Graduate Research Assistant University of North Carolina at Chapel Hill, Department of Epidemiology, Chapel Hill, NC

March 2013 - December 2013 Contracted Epidemiologist California Tribal Epidemiology Center (CTEC), Sacramento, CA
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PUBLICATIONS
1. Camplain R, Camplain C, Trotter, RT, Pro G, Sabo S, Eaves E, Peoples M, Baldwin JA. Racial/Ethnic Differences in Drug- and Alcohol-Related Arrest Outcomes in a Southwest County from 2009-2018. Am J Public Health. 2020;110(S1):S85–S92. doi:10.2105/AJPH.2019.305409. PMID: 31967892.
2. Camplain R, Sotres-Alvarez D, Alvarez C, Wilson R, Perreira KM, Castaneda SF, Merchant G, Chambers EC, Gellman MD, Gallo L, Evenson KR. The association of acculturation with accelerometer-assessed and self-reported physical activity and sedentary behavior: The Hispanic Community Health Study/Study of Latinos. Prev Med Rep. In Press.
3. Pro G, Camplain R, Sabo S, Baldwin JA, Gilbert PA. Substance abuse treatment in correctional versus community settings: Analysis of racial/ethnic and gender differences. J Health Dispar Res Pract. In Press.
4. Pro G, Camplain R, de Heer BA, Chief C, Teufel-Shone N. A national epidemiologic profile of physical intimate partner violence, adverse childhood experiences, and supportive childhood relationships: Group differences in predicted trends and associations. J Racial Ethn Health Disparities. 2020 Jan; 1-11.
5. Camplain R, Pinn TA, Williamson H, Pro G, Becenti L, Bret J, Luna C, Baldwin JA. Adaptation of the System for Observing Play and Recreation in Communities (SOPARC) for the Measurement of Physical Activity in Jail Settings. Int J Environ Res Public Health. 2020 Jan; 17(1):349.
6. Rock T, Camplain R, Teufel-Shone N, Ingram J. Traditional Sheep Consumption by Navajo People in Cameron, Arizona. Int J Environ Res Public Health. 2019 Oct. 16(21):4196. DOI: 10.3390/ijerph16214195. PMCID: PMC6862166.
7. Camplain R, Baldwin JA. Invited Commentary: The search for health equity among individuals incarcerated in jail. Pract Anthropol. 2019 Sep; 41(4):46-48.
8. Trotter RT, Fofanov VY, Camplain R, Arazan C, Camplain C, Eaves E, Hanabury, M, Hepp C, Kohlbeck B, Lininger M, Peoples IM, Traustadottir T, Dmitrieva NO, Baldwin JA. Health disparities in Jail Populations: Mixed Methods and Multi-Disciplinary Community Engagement for Justice and Health Impacts. Pract Anthropol. 2019 Sep; 41(4):2-16.
9. Camplain R, Warren M, Baldwin JA, Camplain C, Fofanov VY, Trotter RT. Epidemiology of incarceration: Characterizing jail incarcerations in Coconino County for public health research. Epidemiology. 2019 July 1; 30(4):561568. DOI: 10.1097/EDE.0000000000001021. PMCID: PMC6559241.
10. Camplain R, Baldwin JA, Warren M, Camplain C, Lininger M, Trotter RT. Physical activity among individuals incarcerated in jail: A social justice issue. J Phys Act Health. 2019 May 1; 16(5):306-307. DOI: 10.1123/jpah.20190055. PMID: 30966856.
11. Valdez ES, Sabo, S, Butler M, Camplain R, Koch B, Simpson R, Castro Y. Perinatal Depression Symptom Prevalence at the US-Mexico Border. Rural Ment Health. 2019 Jan; 43(1):38.
12. Trotter RT, Lininger MR, Camplain R, Fofanov VY, Camplain C, Baldwin JA. A survey of health disparities, social determinants of health, and converging morbidities in a county jail: A cultural-ecological assessment of health conditions in jail populations. Int J Environ Res Public Health. 2018 Nov 8; 15(11):1-16. DOI: 10.2196/10337. PMCID: PMC6267226.
13. Trotter RT, Camplain R, Eaves, ER, Fofanov VY, Dmitrieva, NO, Hepp CM, Warren M, Barrios BA, Pagel N, Mayer A, Baldwin JA. Health Disparities and Converging Epidemics in Jail Populations: Protocol for a Mixed-Methods Study. JMIR Res Protoc. 2018 Oct 24;7(10):e10337. DOI: 10.2196/20337. PMID: 30355562.
14. Cuthbertson C, Heiss G, Wright JD, Camplain R, Patel MD, Foraker RE, Matsushita K, Puccinelli-Ortega N, Shah AM, Kucharska-Newton AM. Incident Heart Failure Diagnosis in the Inpatient and Outpatient Setting Among CMS Medicare Beneficiaries – Socio-Economic Status and Access to Care Factors. Ann Epidemiol. 2018 Jun; 28(6):350-355. DOI: 10.1016/j.anepidem.2018.04.003. PMID: 29709334.
15. Camplain R, Kucharska-Newton A, Layton JB, Keyserling TC, Loehr L, Heiss G. Incidence of heart failure observed in emergency departments, ambulatory clinics, and hospitals. Am J Cardiol. 2018 Jun 1; 121(11):1328-1335. DOI: 10.1016/j.amjcard.2018.02.014. NIHMS: NIHMS948703.
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16. Camplain R, Kucharska-Newton A, Loehr L, Keyserling TC, Layton JB, Wruck L, Folsom AR, Wright JD, Shah AM, Bertoni A, Heiss G. Accuracy of self-reported heart failure. The Atherosclerosis Risk in Communities (ARIC) Study. Journal of Cardiac Failure. 2017 Nov; 23(11):802-808. DOI: 10.1016/j.cardfail.2017.09.002. PMCID: PMC5671356.
17. Camplain R, Kucharska-Newton A, Cuthbertson C, Wright J, Alonso A, Heiss G. Misclassification of incident hospitalized and outpatient heart failure in administrative claims data: The Atherosclerosis Risk in Communities Study. Pharmacoepidemiol Drug Saf. 2017 Apr; 26(4):608-624. DOI: 10.1002/pds.4162. PMCID: PMC5380482.
18. Fleischhacker S, Roberts E, Camplain R, Evenson KR, Gittelsohn J. Promoting physical activity among Native American youth: A systematic review of the methodology and current evidence of physical activity interventions and community-wide initiatives. J Racial Ethn Health Disparities. 2016 Dec;3(4):608-624. DOI: 10.1007/s40615-015-01801. PMCID: PMC4911341.
19. Camplain R, Meyer ML, Tanaka H, Palta P, Agarwal S, Aguilar D, Butler K, Heiss G. Smoking behaviors and arterial stiffness measured by pulse wave velocity: The Atherosclerosis Risk in Communities (ARIC) Study. Am J Hypertens. 2016 Nov; 29(11):1268-1275. DOI: 10.1093/ajh/hpv189. PMCID: PMC5055735.
20. Meyer ML, Tanaka H, Palta P, Patel MD, Camplain R, Couper D, Cheng S, Qunaibet AA, Poon AK, Heiss G. Response to “Repeatability of Different Segmental Pulse Wave Velocity Measurements”. Am J Hypertens. 2016 Jul;29(7):890. DOI: 10.1093/ajh/hpw051.
21. Evenson KR, Brown DR, Pearce E, Camplain R, Jernigan J, Epping J, Shepard DM, Dorn JM. Evaluation of the Physical Activity and Public Health Course for Practitioners. J Phys Act Health. 2016 Jun;87(2):207-213. DOI: 10.1080/02701367.2016.1146942. PMCID: PMC4946847.
22. Meyer ML, Tanaka H, Palta P, Patel M, Camplain R, Couper D, Cheng S, Al Qunaibet A, Poon A, Heiss G. Repeatability of central and peripheral pulse wave velocity measures: The Atherosclerosis Risk in Communities (ARIC) Study. Am J Hypertens. 2016 Apr;29(4):470-475. DOI: 10.1093/ajh/hpv127. PMCID: PMC4850900.
23. Evenson KR, Dorn JM, Camplain R, Pate RR, Brown DR. Evaluation of the Physical Activity and Public Health Course for Researchers. J Phys Act Health. 2015 Aug; 12(8):1052-1060. DOI: 10.1123/jpah.2014-0284. PMCID: PMC4949596.
Under Review
24. Camplain R, Lininger M, Baldwin JA, Trotter RT. Validity of the International Physical Activity Questionnaire among jail inmates. J Correct Health Care. (Under Review).
25. Camplain R, Camplain C. COVID-19 Testing in the United States’ Prisons. Am J Public Health. (Under Review).
26. Camplain R, Becenti L, Pinn TA, Williamson H, Pro G, Baldwin JA. Physical activity among women incarcerated in jail. Am J Public Health. (Under Review).
27. Camplain R, Warren M, Trotter RT, Baldwin J. Cardiovascular disease risk factors among individuals incarcerated in a rural county jail. Int J Prison Health. (Under Review).
28. Pro G, Camplain R, Lea C. The competing effects of racial discrimination and racial identity on the likelihood of lifetime incarceration and number of days incarcerated. J Health Soc Behav. (Under Review).
29. Giano Z, Camplain R, Pro G, Camplain C, Baldwin JA, Wheeler DL, Hubach RD. Adverse Childhood Experiences in American Indian/Alaska Native Populations. Am J Prev Med. (Under Review).
30. Pro G, Giano Z, Camplain R, Haberstroh S, Camplain C, Wheeler DL, Hubach RD, Baldwin JA. The role of state Medicaid expansions in integrating comprehensive mental health services into Opioid Treatment Programs: Differences across the rural/urban continuum. J Rural Health. (Under Review).
31. Pro G, Giano Z, Camplain R, Haberstroh S, Camplain C, Wheeler DL, Hubach RD, Baldwin JA. Differences in COVID19 case rates and case fatality rates across the urban/rural continuum. J Rural Health. (Under Review).
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In Progress

32. Camplain R, Camplain C, Baldwin J. Recreation time use and acute depression among individuals incarcerated in jail. Am J Prev Med. (In Progress).

33. Camplain R, Trotter RT, Sears G, Begay A, Baldwin J. Housing stability and sleep quality prior to and during incarceration. Am J Public Health. (In Progress).
34. Camplain R, Teufel-Shone N, Jiang L, Bullock A, Manson S. Relationships of physical activity and food choice with glycemic control: Special Diabetes Program for American Indians Healthy Heart Intervention. Prev Med. (In Progress).

35. Camplain C, Camplain R, Baldwin JA, Trotter, RT. Barriers to healthcare access and utilization while incarcerated. Jurimetrics. (In Progress).

36. Eaves E, Lininger M, Camplain R, Trotter RT. Pain and substance use among individuals incarcerated in jail. J Correct Health Care. (In Progress).

37. Eaves E, Camplain R, Lininger M, Trotter RT. Adverse childhood experiences and substance use among individuals incarcerated in jail. J Correct Health Care. (In Progress).

38. deHeer B, Camplain R, Trotter RT, Baldwin JA. Arrest Outcomes among Individuals Charged with Rape and Sexual Assault in Coconino County. (In Progress).

39. Camplain C, Camplain R. Healthcare in Tribal Jails. (In Progress).

REPORTS

1. Sabo S, Verebelyi E, Camplain R, Warren M, Mihaljevic J, O’Connor B, Neal A, McAnnich T, Jimenez D, O’Meara L, Pinn T, Robinson B. Coconino County COVID-19 Public Health Report. Flagstaff, AZ. 2020. https://www.coconino.az.gov/DocumentCenter/View/34829/Corona-Virus-Response-Plan-_Coconino-County-_ExecSummary
2. Sabo S, O’Meara LM, Camplain R. The Community Health Representative Impact Evaluation. Flagstaff, AZ. 2019. https://nau.edu/wp-content/uploads/sites/160/CHR-Workforce-Assessment_Final.pdf

3. Pro G, Camplain R. Yavapai County Detention Center Reach Out Evaluation. Camp Verde, AZ. 2019. https://nau.edu/cher/cher-researchers-finish-reach-out-program-study/

4. Sanderson K, Williamson HJ, Eaves E, Barger S, Elwell K, Hepp C, Camplain R, Winfree K, Trotter R, Baldwin JA. Advancing Wellbeing in Northern Arizona: A Regional Health Assessment. Flagstaff, AZ. 2017. http://cher.nau.edu/index.php/regional-needs-and-assets-assessment/.

5. Joseph A, Camplain R, Harklerode R. California Tribal Epidemiology Center. Indian Health Priorities. Sacramento, CA. 2013. https://www.crihb.org/wp-content/uploads/2015/05/CTEC-Priorities-Report-Final-2014.pdf.

6. Evenson KR, Camplain R, Pearce E, Richardson J, Goto M. Centers for Disease Evaluation Report on the Physical Activity and Public Health Course for Researchers and Practitioners. Atlanta, GA. 2013.

RESEARCH GRANTS

Current

Title: Role: Grant Type: Funding: Grant Period:

Epidemiological Modeling to Facilitate Regional Response to Epidemic Threats in Northern Arizona Co-I COVID-19 Rapid Response Grant ($75,000) Flinn Foundation (Grant #2305) May 1, 2020 – April 30, 2021

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Title: Role: Grant Type: Funding: Grant Period:

Diets of Individuals Incarcerated in Jail PI Faculty Research Seed Grant Program ($2,000) Northern Arizona University’s College of Health and Human Services November 26, 2019 – November 25, 2020

Title: Role: Grant Type: Funding: Grant Period:

Physical Activity among Women Incarcerated in Jail PI Pilot Project Program ($60,000) Southwest Health Equity Research Collaborative / NIMHD (1U54MD012388-01) August 13, 2019 – August 12, 2021

Submitted

Title:
Role: Grant Type:
Funding: Submitted:

Community Health Representative Workforce Integration: A mixed methods study of health systems serving American Indians (Sabo, PI) Co-I Addressing Disparities; Assessment of Prevention, Diagnosis, and Treatment Options; Communication and Dissemination Research; and Improving Healthcare Systems ($2,927,853) Patient Centered Outcomes Research Institute January 2020

Title:
Role: Grant Type: Funding:
Submitted:

State Family and Medical Leave Laws and Health Outcomes among Children with Special Healthcare Needs (Lindly, PI) Co-PI R40 Maternal and Child Health Secondary Data Analysis Research (MCH SDAR) Program ($100,000) Health Resources and Service Administration, Maternal and Child Health Bureau, Division of Research, Office of Epidemiology and Research January 2020

Title: Role: Grant Type: Funding: Submitted:

Promoting Physical Activity and Recreation Time among Individuals Incarcerated in Jail PI K01 Mentored Career Development Award ($650,535) National Institute on Minority Health and Health Disparities February 2020

Title: Role: Grant Type: Funding: Submitted:

Native American and Rural Health Research Center Investigator Rural Health Research Center Program ($2,800,000) Health Resources and Service Administration Federal Office of Rural Health Policy Research Division February 2020

Title: Role: Grant Type: Funding: Submitted:

Intersectionality among LGBTQIA and Indigenous Populations (Levandowski, PI) Co-I Novel Biostatistical and Epidemiologic Methods Award ($35,000) University of Rochester Medical Center Clinical and Translational Science Institute March 2020

Title: Role: Grant Type: Funding: Submitted:

Developing Partnerships to Establish Health Care in Tribal Jails Co-I Community-Campus Partnership Support ($5,000) Southwest Health Equity Research Collaborative / NIMHD (1U54MD012388-01) May 2020

Completed

Title:
Role: Grant Type: Funding: Grant period:

Health Disparities in Jail Populations: Converging Epidemics that Impact Population Health and Health Care in Coconino County (Baldwin & Trotter, MPIs) Co-I Pilot Funding NARBHA Institute (no number) June 1, 2017 – December 31, 2018

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Title: Role: Grant Type: Funding: Grant period:

Non-Hospitalized Heart Failure (Heiss, Mentor) Student/Trainee Research Supplement to Promote Diversity in Health-Related Research National Heart, Lung, and Blood Institute (HHSN268201100007C) August 1, 2013 – May 15, 2017

AWARDS AND HONORS

2019

University of Rochester Clinical and Translational Science Institute RCMI Scholarly Exchange

2019

Native American Role Model Guest Speaker, Northern Arizona University Bridges’ Program

2018

Southwest Health Equity Research Collaborative Methods Training Award, Northern Arizona University

2015

University of North Carolina Gillings School of Global Public Health Koch Travel Award

2014-2016 University of North Carolina Native American Incentive Grant

2014

Centers for Disease Control and Prevention Millennial Health Leader

2012

University of North Carolina Gillings School of Global Public Health Annual Fund Scholarship

2007-2011 University of New Mexico Scholars Program (Presidential Scholarship)

PRESENTATIONS

Scientific Presentations

1. Camplain C, Camplain R, and Russel K. Healthcare in Tribal Jails: A Collaboration during a Crisis. Accepted for oral presentation at the Academic and Health Policy Conference on Correctional Health. Raleigh, NC. June 2021. [POSTPONED DUE TO COVID-19 PANDEMIC]

2. Camplain R, de Heer B, Elzer H, Peoples M, Baldwin JA. Sexual Assault Arrests Outcomes in a Rural, Southwest County. Submitted to the American Public Health Association Annual Conference. San Francisco, CA. October 2020.

3. Camplain R, Becenti L, Pro G, Pinn TA, Williamson H. The importance of physical activity among women in correctional settings. Submitted to the American Public Health Association Annual Conference. San Francisco, CA. October 2020.

4. Pinn TA*, Pro G, Williamson H, Becenti L, Robinson B, Evans M, Camplain R. Detention officers’ perceptions of incarcerated women’s physical activity. Submitted to the American Public Health Association Annual Conference. San Francisco, CA. October 2020.

5. Spilkin A*, Lopez NV, Phillips R, Brauer J, Camplain R. Pregnant women who are incarcerated in an Arizona county jail and risks of not meeting micronutrient requirements during pregnancy. Submitted to the American Public Health Association Annual Conference. San Francisco, CA. October 2020.

6. Phillips R*, Lopez NV, Brauer J, Camplain R. Adherence of an Arizona county jail’s seven-day cycle menu to the 2015-2020 USDA dietary guidelines for Americans. Submitted to the American Public Health Association Annual Conference. San Francisco, CA. October 2020.

7. Brauer J*, Lopez NV, Spilkin A, Camplain R. Meeting macronutrient recommendations in an Arizona County Jail. Submitted to the American Public Health Association Annual Conference. San Francisco, CA. October 2020.

8. Camplain R, Williamson HJ, Pro G, Becenti L, Pinn TA. Adapting the System for Observing Play and Recreation in Communities (SOPARC) for Incarcerated Populations. Accepted for oral presentation at Active Living Research. Orlando, FL. February 2020.

9. Camplain R, Becenti L*, Pinn TA*, Williamson HJ, Pro G. Preliminary Results from a Physical Activity Study in a Southwest Jail. Oral presentation at RCMI Program National Conference. Washington, D.C. December 2019.

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10. Becenti L*, Pinn TA*, Williamson HJ, Pro G, Camplain R. Preliminary Results from a Physical Activity Study in a Southwest Jail. Poster presented at RCMI Program National Conference. Washington, D.C. December 2019.
11. Pinn TA*, Becenti L*, Williamson HJ, Pro G, Camplain R. Potential Staff-Created Barriers to Incarcerated Women being Physically Active. Poster presented at RCMI Program National Conference. Washington, D.C. December 2019.
12. Pro G, Camplain R, Lea C. Competing Effects of Racial Discrimination and Racial Identity on the Predicted Number of Days Incarcerated across the Lifespan. Oral presentation at the American Public Health Association’s 2019 Annual Meeting and Expo. November 2019.
13. Camplain R, Pro G, Williamson HJ, Baldwin JA. Physical Activity among Women Incarcerated in a Rural Jail. Oral presentation at the Annual Rural Women’s Health Symposium. Sedona, Arizona. June 2019.
14. Camplain R, Warren M, Camplain C, Lininger MR, Trotter RT, Baldwin JA. Recreation time use among individuals incarcerated in jail. Oral peer presentation at the Academic and Health Policy Conference on Correctional Health. Las Vegas, Nevada. March 2019.
15. Camplain R. Promoting recreation time among individuals incarcerated in jail. Webinar presented for the Society for Behavioral Medicine. December 2018.
16. Camplain R, Trotter RT, Warren M, Fofanov VY, Hepp CM, Pagel N, Baldwin JA. Challenges of longitudinal health research in jail populations: Identifying and linking incarceration and health records. Poster presented at the Society for Epidemiologic Research, Baltimore, Maryland. June 2018.
17. Camplain R, Kucharska-Newton A, Loehr L, Keyserling TC, Layton JB, Wruck L, Folsom AR, Bertoni AG, Heiss G. Accuracy of self-reported heart failure following a hospitalized heart failure event: The ARIC Study. Poster presented at American Heart Association EPI/Lifestyle Scientific Sessions, Phoenix, Arizona. March 2016.
18. Camplain R, Kucharska-Newton A, Cuthbertson CC, Wright JD, Alonso A, Heiss G. Misclassification of incident heart failure hospitalizations in administrative claims data. Moderated poster presented at American Heart Association EPI/Lifestyle Scientific Sessions, Baltimore, Maryland. March 2015.
19. Camplain R, Fleischhacker S, Roberts E, Evenson KR, Gittelsohn J. Fostering community changes that promote active living among American Indian and Alaska Native Communities: Promising Strategies and Research Opportunities. Oral presentation at Active Living Research Annual Conference, San Diego, California. February 2015.
20. Camplain R, Meyer ML, Tanaka H, Palta P, Agarwal SK, Aguilar D, Butler KR, Heiss G. Time since smoking cessation and pulse wave velocity: The Atherosclerosis Risk in Communities Study. Poster presented at American Heart Association EPI/NPAM 2014 Scientific Sessions, San Francisco, California. March 2014.
21. Camplain R, Young DR. Is location associated with the perceived body size of its users? Oral and poster presentations at the University of New Mexico Undergraduate Research Day, Albuquerque, New Mexico. April 2011.
* Denotes students advised
Community Presentations
22. Sabo S, Camplain R. Coconino County Coronavirus Response Report. Coconino County Board of Supervisors Special Session on COVID-19. April 2020.
23. Camplain R. Racial/Ethnic Differences in Drug- and Alcohol-Related Arrest Outcomes. Coconino County Criminal Justice Coordinating Council. Flagstaff, Arizona. November 2019.
24. Camplain R, Teufel-Shone NI. Potentials of Data. Missing and Murdered Diné Relatives Forum. Flagstaff, Arizona. August 2019.
25. Camplain R. Administrative Data in the Quest for Health Equity among Jail Populations. Understanding the Impacts of Incarceration on Health: Research, Policy, and Community Engagement Workshop. Flagstaff, Arizona. June 2019.
26. Camplain R, Fofanov V, Trotter RT. Health among individuals incarcerated in Coconino County Detention Facility. Coconino County Detention Facility, Flagstaff, Arizona. April 2019.
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27. Camplain R, Camplain C, Trotter RT. Health disparities in jail populations: Preliminary results from health surveys. Navajo County Criminal Justice Coordinating Council Meeting, Holbrook, Arizona. July 2018.

28. Camplain R, Fofanov V, Trotter RT. Health disparities in jail populations: Preliminary results from health surveys. Coconino County Criminal Justice Coordinating Council, Behavioral Health Subcommittee Meeting, Flagstaff, Arizona. February 2018.

Invited Talks

29. Camplain R. Promoting health among individuals involved in the criminal justice system. University at Buffalo School of Public Health and Health Professions, Incarceration and Public Health. Buffalo, NY. February 2020.

30. Camplain R. Failure as a means to success. Native American Role Model Guest Speaker Series. Northern Arizona University Bridges’ Program. Flagstaff, AZ. August 2019.

TEACHING ACTIVITIES

Spring 2020* Research Methods and Program Evaluation, HS 622 Lead Instructor Department of Health Sciences MPH Program, Northern Arizona University, Flagstaff, AZ

Fall 2019*

Principals of Biostatistics, HS 503 Lead Instructor Department of Health Sciences MPH Program, Northern Arizona University, Flagstaff, AZ

2018-Present* Journal Club Facilitator Department of Health Sciences MPH Program, Northern Arizona University, Flagstaff, AZ

February 2019 Physical Activity and Public Health: Physical Activity Measurement Southwest Health Equity Research Collaborative Research Infrastructure Core Workshop Series Northern Arizona University, Center for Health Equity Research, Flagstaff, AZ

October 2019 Public Health Epidemiology, HS 612 October 2018 Guest Lecturer – Confounding Assessment via Causal Diagrams
Department of Health Sciences MPH Program, Northern Arizona University, Flagstaff, AZ

October 2018 Clinical Epidemiology and Population Health, PT 664 Lab Facilitator – Data Analysis using SAS Department of Physical Therapy and Athletic Training, Northern Arizona University, Flagstaff, AZ

Fall 2015

Clinical Measurement and Evaluation, EPID 711 Teaching Assistant Department of Epidemiology, University of North Carolina at Chapel Hill, Chapel Hill, NC

Spring 2012

Spanish I and II Permanent Substitute Teacher Grants High School, Grants, NM

*Denotes developed course

STUDENTS ADVISED

Advisor/Chair

2019-2022

Travis Alexander Pinn, Interdisciplinary Health PhD Student, Health Science, Northern Arizona University Academic Advisor

2020-2021

Hannah Elzer, Master of Public Health Student, Health Science, Northern Arizona University Masters Project Chair: Sexual Assault Perpetrators at Coconino County Detention Facility

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2020-2021

Julianne Bauer, Master of Public Health Student, Health Science, Northern Arizona University Masters Project Chair: Diets in Jail: Macronutrients in a 7-day cycle menu at Coconino County Detention Facility

2020-2021

Ary Spilkin, Master of Public Health Student, Health Science, Northern Arizona University Masters Project Chair: Are the Diets in Jail Appropriate for Pregnant Women?

2020-2021

Bonnie Kuss, Master of Public Health Student, Health Science, Northern Arizona University Masters Project Chair: Diet Quality in Jail: HEI 2015 Scores

2020-2021

Rachelle Phillips, Master of Public Health Student, Health Science, Northern Arizona University Masters Project Chair: My Plate Adherence in Jail

2020-2021

Gabrielle Delio, Master of Public Health Student, Health Science, Northern Arizona University Masters Project Chair

2019-2020

Lyle Lars Becenti, Master of Public Health Student, Health Science, Northern Arizona University Masters Project Chair: Physical Activities during Recreation Time among Women Incarcerated in Jail

Committee Member

2019-2020

Davona Blackhorse, Interdisciplinary PhD Health Student, Health Science, Northern Arizona University Dissertation Committee Member

INSTITUTIONAL, NATIONAL, AND INTERNATIONAL SERVICE ACTIVITIES

2020-present Academic Consortium on Criminal Justice Health, Board of Directors

2020-present Diversity Committee Member, Academic Consortium on Criminal Justice Health

2020

Judge, Undergraduate Research Symposium, Office of Undergraduate Research and Creative Activity, Northern Arizona University

2019-present Honors and Scholarship Committee Member, College of Health and Human Services, Northern Arizona University

2019-present Master of Public Health Committee Member, Department of Health Sciences, Northern Arizona University

2019-present Research Committee Member, Department of Health Sciences, Northern Arizona University

2019-present Healthy Eating and Active Living Think Tank, Department of Health Sciences, Northern Arizona University

2014-2015

Cardiovascular Disease Epidemiology Peer-Led Student Organization Leader, University of North Carolina at Chapel Hill, Chapel Hill, NC

2013-2014 Cardiovascular Disease Epidemiology Journal Club Organizer, University of North Carolina at Chapel Hill

REVIEWER ACTIVITIES

2020

College of Health and Human Services Dean’s Faculty Seed Grant Review Committee, Northern Arizona University, Flagstaff, AZ

2020

Hooper Undergraduate Research Award Review Committee, Northern Arizona University, Flagstaff, AZ

2015-2018

Atherosclerosis Risk in Communities (ARIC) Manuscript Reviewer, University of North Carolina at Chapel Hill, Chapel Hill, NC

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Journal Reviewer American Journal of Public Health PLOS ONE International Journal of Environmental Research and Public Health Sports International Journal of Offender Therapy and comparative Criminology American Journal of Hypertension BMC Methodology Pharmacoepidemiology and Drug Safety Journal of Medical Internet Research Journal of Cardiac Failure Nutrients

COMMUNITY SERVICE

2020

Coconino County COVID-19 Epidemiology Response Team, Northern Arizona University Epidemiology Team Lead, Flagstaff, AZ

2020

Arizona Department of Health, COVID-19 Community Think Tank Member, Phoenix, AZ

2019-present Yavapai County Detention Center, Reach Out Program Evaluator, Camp Verde, AZ

2017-present Coconino County Detention Center Volunteer, Flagstaff, Arizona

2013

Shape it Up for Spring Health and Wellness Fair, Asheboro, NC; Burlington, NC

2013

Student Health Action Coalition (SHAC), Carrboro, NC

2010, 2011 Higher Achievement Program for Washington DC Youth, College Park, MD

OTHER PROFESSIONAL

2011-2012 Research Assistant University of New Mexico, Department of Health/Clinical Psychology, Albuquerque, NM

2012

Nutrition/Fitness Counselor, Camp Shane, Ferndale, NY

2012

Spanish Teacher and Athletic Coach, Grants High School, Grants, NM

2007-2011 Football Equipment Manager, University of New Mexico Athletic Department, Albuquerque, NM

MEMBERSHIPS

2018-present Society for Behavioral Medicine

2018-present Academic Consortium on Criminal Justice Health

2017-present Society for Epidemiologic Research

2012-present American Heart Association

2017-present Criminal Justice Working Group, University of North Carolina at Chapel Hill

2018-present Public Health Law Network

2017-present Arizona Wellbeing Commons

2018-2019 Society for Prevention Research

2015-2017 Physical Activity Policy Research Network Plus

2012-2017 Epidemiology Student Organization, University of North Carolina at Chapel Hill

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2012-2017 First Nations Graduate Circle, University of North Carolina at Chapel Hill TECHNICAL SKILLS SAS, R, ATLAS ti, Qualtrics, RedCap
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EXHIBIT 5

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Carlos Franco-Paredes, MD, MPH Division of Infectious Diseases Department of Medicine Director, Infectious Diseases Fellowship Training Program
Mail Stop B168 Reearch Complex 2 12700 E. 19th Avenue | Aurora, Colorado 80045 o 123 456 7890 | f 123 456 7890 | carlos.franco-paredes@ucdenver.edu
May 13, 2020
Dear Judge Humetewa and Magistrate Judge Fine:
I am an infectious diseases physician with a public health degree in global infectious diseases. I have been a clinician for more than 20 years. I have participated as a consultant in developing the pandemic global preparedness plans for influenza with the World Health Organization.
Since the beginning of the COVID-19 pandemic in the U.S., I have participated in several COVID-19– specific cases addressing the medical care and overall conditions in jails and prisons in the U.S. In addition to preparing declarations for West Metro Center in Miami, one for the L.A. county jail system, and others, I have participated in four in-person jail inspections with ongoing COVID-19 outbreaks: two at Weld County Jail in Colorado, one at Oakland County Jail in Michigan and one in Prince George’s County in Maryland. I conducted the latter inspection as an independent court appointed inspector.
I am willing and able to conduct an in-person inspection review of the Central Arizona Florence Correctional Complex regarding the ability of the facility to meet public health recommendations for the prevention of Coronavirus Disease 2019 (COVID-19) on short notice. This inspection will be conducted to assess social-distancing and hygienic practices in this facility and whether these practices comply with recommendations of public-health experts and are adequate to protect detainees in the facility from COVID-19. I am available to do this on short notice, including the week of May 18, 2020, and am willing to work alone or in consultation with others as the court may prefer. I can produce a written report and/or summary within a few days of the on-site visit, assuming access to needed materials. In conducting this review, I would suggest visiting the medical unit, any unit under quarantine, intake and processing areas, admission or intake unit for new admittees, conduct interviews of inmates and correctional officers.
I have also reviewed Federal Rule of Evidence 706 and understand that under that rule I may be deposed by either party, cross-examined, and called by the court to testify.
Warmly,
Carlos Franco-Paredes, MD, MPH Associate Professor of Medicine Division of Infectious Diseases Department of Medicine Program Director Infectious Disease Fellowship Training Program

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 46 of 95

Carlos Franco-Paredes, MD, MPH

Revised: 05/11/2020

PERSONAL INFORMATION Carlos Franco-Paredes, M.D., M.P.H. Carlos.franco-paredes@cuanschutz.edu carlos.franco.paredes@gmail.com U.S. Citizen and Mexican Citizen Languages: English and Spanish

CURRENT PROFESSIONAL POSITION AND ACTIVITIES: x Associate Professor of Medicine, Division of Infectious Diseases, University of Colorado Denver School of Medicine, Anschutz Medical Campus and Infectious Diseases (July 2018 - ongoing). x Fellowship Program Director, Division of Infectious Diseases, University of Colorado Denver School of Medicine, Anschutz Medical Campus (March 2019- ongoing).

EDUCATION 1989 -1995 1996-1999
1999-2002
1999-2002
1999 - 2002
2001-2002
2006

M.D. - La Salle University School of Medicine, Mexico City, Mexico Internship and Residency in Internal Medicine, Emory University School of Medicine Affiliated Hospitals, Atlanta, GA Fellowship in Infectious Diseases, Emory University School of Medicine Affiliated Hospitals, Atlanta, GA Fellow in AIDS International Training and Research Program, NIH Fogarty Institute, Rollins School of Public Health, Emory University, Atlanta, GA Masters Degree in Public Health (M.P.H.) Rollins School of Public Health, Emory University, Atlanta, GA, Global Health Track Chief Medical Resident, Grady Memorial Hospital, Emory University School of Medicine, Atlanta, GA Diploma Course in Tropical Medicine, Gorgas. University of Alabama, Birmingham and Universidad Cayetano Heredia, Lima Peru

CERTIFICATIONS 1999-Present 2001-present
2005-present 2007-present

Diplomat in Internal Medicine American Board of Internal Medicine (Recertification 11/2010-11/2020) Diplomat in Infectious Diseases, American Board of Internal Medicine, Infectious Diseases Subspecialty (Recertification 04/2011-04/2021) Travel Medicine Certification by the International Society of Travel Medicine Tropical Medicine Certification by the American Society of Tropical Medicine – Diploma in Tropical Medicine and Hygiene (DTMH - Gorgas)

EMPLOYMENT HISTORY: x 2002 - 2004 - Advisor to the Director of the National Center for Child and Adolescent Health and of the National Immunization Council (NIP), Ministry of Health Mexico; my activities included critical review of current national health plans on
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Carlos Franco-Paredes, MD, MPH
vaccination, infectious diseases, soil-transmitted helminthic control programs; meningococcal disease outbreaks in the jail system, an outbreak of imported measles in 2003-2004 and bioterrorism and influenza pandemic preparedness. I represented the NIP at meetings of the Global Health Security Action Group preparation of National preparedness and response plans for Mexico x 2005 – 2011- Co-Director Travel Well Clinic, Emory University Emory Midtown Hospital x 2004- 8/2009 -Assistant Professor of Medicine Department of Medicine, Division of Infectious Diseases Emory University School of Medicine, Atlanta GA x 3/2008-10/2009 Consultant WHO, HQ, Geneva, Influenza Vaccine x 9/2009- 3/2011 Associate Professor of Medicine Department of Medicine, Division of Infectious Diseases Emory University School of Medicine, Atlanta GA x 1/2007 – 3/2011 Assistant Professor of Public Health Hubert Department of Global Health Rollins School of Public Health, Emory University, Atlanta GA x 4/2011 –5/2013 - Associate Professor of Public Health in Global Health Hubert Department of Global Health Rollins School of Public Health, Emory University, Atlanta GA x 2010 - WHO HQ Consultant for a 4-month-period on the Deployment of H1N1 influenza vaccine in the African Region, Jan to March 2010, Switzerland Geneva, WHO HQ 2010 sponsored by John Snow Inc. USAID, Washington, D.C. x 2014-2015 - Consultant International Association of Immunization Managers, Regional Meeting of the Middle Eastern and North African Countries and Sub Saharan Africa, held in Durban South Africa, Sept 2014; and as rapporteur of the Inaugural Conference, 3-4 March 2015, Istanbul, Turkey. x 3/2011- 5/2017 - Phoebe Physician Group –Infectious Diseases Clinician Phoebe Putney Memorial Hospital, Albany, GA. x 5/2015 - 9/2015 - Consultant Surveillance of Enteric Fever in Asia (Pakistan, Indonesia, Bangladesh, Nepal, India) March 2015-October 2015. x June 19, 2017-June 31, 2018–Visiting Associate Professor of Medicine, Division of Infectious Diseases, University of Colorado Denver, Anschutz Medical Campus x June 2004- present - Adjunct Professor of Pediatrics, Division of Clinical Research, Hospital Infantil de México, Federico Gómez, México City, México. Investigador Nacional Nivel II, Sistema Nacional de Investigadores (12/2019); SNI III Sistema Nacional de Investigadores (1/2020-); Investigador Clínico Nivel E, Sistema Nacional de Hospitales
HONORS AND AWARDS 1995 Top Graduating Student, La Salle School of Medicine 1997 Award for Academic Excellence in Internal Medicine, EUSM 1999 Alpha Omega Alpha (AOA) House staff Officer, EUSM
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Carlos Franco-Paredes, MD, MPH

2002 2002 2002
2002
2006 2006 2007 2007 2009
2012 2012 2018

Pillar of Excellence Award. Fulton County Department of Health and Wellness Communicable Disease Prevention Branch, Atlanta GA Emory University Humanitarian Award for extraordinary service in Leadership Betterment of the Human Condition the Emory University Rollins School of Public Health Winner of the Essay Contest on the Health of Developing Countries: Causes and Effects in Relation to Economics or Law, sponsored by the Center for International Development at Harvard University and the World Health Organization Commission on Macroeconomics Health with the essay "Infectious Diseases, Non-zero Sum Thinking and the Developing World” “James W. Alley” Award for Outstanding Service to Disadvantaged Populations, Rollins School of Public Health of Emory University May 2002. Received during Commencement Ceremony Graduation to obtain the Degree of Masters in Public Health Golden Apple Award for Excellence in Teaching, Emory University, School of Med Best Conference Award Conference, “Juha Kokko” Best Conference Department of Medicine, EUSM “Jack Shulman” Award Infectious Disease fellowship, Excellence in Teaching Award, Division of Infectious Diseases, EUSM Emerging Threats in Public Health: Pandemic Influenza CD-ROM, APHA’s Public Health Education and Health Promotion Section, Annual Public Health Materials Contest award National Center for Preparedness, Detection, and Control of Infectious Diseases. Honor Award Certificate for an exemplary partnership in clinical and epidemiologic monitoring of illness related to international travel. NCPDCID Recognition Awards Ceremony, April 2009. CDC, Atlanta, GA The ISTM Awards Committee, directed by Prof. Herbert DuPont, selected the article "Rethinking typhoid fever vaccines" in the Journal of Travel Medicine (Best Review Article) Best Clinical Teacher. Albany Family Medicine Residency Program Outstanding Educator Award – Infectious Diseases Fellowship, Division of Infectious Diseases, University of Colorado, Anschutz Medical Center, Aurora Colorado

EDITORSHIP AND EDITORIAL BOARDS 2007-Present Deputy/Associate Editor PLoS Neglected Tropical Disease
Public Library of Science 2017-2018 Deputy Editor, Annals of Clinical Microbiology and Antimicrobials
BMC 2007-2019 Core Faculty International AIDS Society-USA -Travel and Tropical Medicine/HIV/AIDS

INTERNATIONAL COMMITTEES 2018- Member of the Examination Committee of the International Society of Travel Medicine.
Developing Examination Questions and Proctoring the Certificate in Traveler’s Health Examination
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Carlos Franco-Paredes, MD, MPH
Proctor Certificate of Traveler’s Health Examination (CTH) as part of the International Society of Travel Medicine– 12th Asia-Pacific Travel Health Conference, Thailand 21-24 March 2019 Proctor Certificate of Traveler’s Health Examination (CTH), Atlanta, GA, September, 2019
PRESENTATIONS AT NATIONAL/INTERNATIONAL MEETINGS 2017- Meeting of the Colombian Society of Infectious Diseases, August 2017: Discussion of Clinical Cases Session, Influenza, MERS-Coronavirus, Leprosy, Enteric Fever 2018 – Cutaneous Mycobacterial Diseases, Universidad Cayetano Heredia, Lima, Peru, Mayo 2018 2018 – Scientific Writing Seminar, ACIN, Pereira, Colombia, August 2-4, 2018 2019 – First International Congress of Tropical Diseases ACINTROP 2019. March 21, 2019, Monteria, Colombia, Topic: Leishmaniasis 2019 – One Health Symposium of Zoonoses, Pereira Colombia, August 16-17, 2019, Topic: Zoonotic Leprosy 2019 – Congress Colombian Association of Infectious Diseases (ACIN), Topic: Leprosy in Latin America, Cartagena, Colombia, August 21-24, 2019 2019 – World Society Pediatric Infectious Diseases, Manila Philippines, November 7-9, 2019 - Tropical Medicine Symposium: Diagnosis, Treatment, and Prevention of Leprosy. 2019 – FLAP. Federacion Latino Americana de Parasitologia, Panama, Panama, November 26, 2019, Oral Transmission of Leprosy Symposium 2019 – FLAP. Federacion Latino Americana de Parasitologia, Panama, Panama, November 27, 2019, Leprosy Situation in the Americas.
PUBLICATIONS BOOKS Franco-Paredes C, Santos-Preciado JI. Neglected Tropical Diseases in Latin America and the Caribbean, Springer-Verlag, 2015. ISBN-13: 978-3709114216 ISBN-10: 3709114217 Franco-Paredes C. Core Concepts in Clinical Infectious Diseases, Academic Press, Elsevier, March 2016. ISBN: 978-0-12-804423-0
RESEARCH ORIGINAL ARTICLES (clinical, basic science, other) in refereed journals: 1. Del Rio C, Franco-Paredes C, Duffus W, Barragan M, Hicks G. Routinely Recommending HIV Testing at a Large Urban Urgent-Care Clinic – Atlanta, GA. MMWR Morbid Mortal Wkly Rep 2001; 50:538-541. 2. Del Rio C, Barragán M, Franco-Paredes C. Pneumocystis carinii Pneumonia. N Engl J Med 2004; 351:1262-1263. 3. Barragan M, Hicks G, Williams M, Franco-Paredes C, Duffus W, Del Rio C. Health Literacy is Associated with HIV Test Acceptance. J Gen Intern Med 2005; 20:422-425. 4. Rodriguez-Morales A, Arria M, Rojas-Mirabal J, Borges E, Benitez J, Herrera M, Villalobos C, Maldonado A, Rubio N, Franco-Paredes C. Lepidopterism Due to the Exposure of the Moth Hylesia metabus in Northeastern Venezuela. Am J Trop Med Hyg 2005; 73:991-993. 5. Rodriguez-Morales A, Sánchez E, Arria M, Vargas M, Piccolo C, Colina R, Franco-Paredes C. White Blood Cell Counts in Plasmodium vivax. J Infect Dis 2005; 192:1675-1676.
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6. Franco-Paredes C, Nicolls D, Dismukes R, Kozarsky P. Persistent Tropical Infectious Diseases among Sudanese Refugees Living in the US. Am J Trop Med Hyg 2005; 73: 1. 7. Osorio-Pinzon J, Moncada L, Franco-Paredes C. Role of Ivermectin in the Treatment of Severe Orbital Myiasis Due to Cochliomyia hominivorax. Clin Infect Dis 2006; 3: e57-9. 8. Rodriguez-Morales A, Franco-Paredes C. Impact of Plasmodium vivax Malaria during Pregnancy in Northeastern Venezuela. Am J Trop Med Hyg 2006; 74:273-277. 9. Rodriguez-Morales A, Nestor P, Arria M, Franco-Paredes C. Impact of Imported Malaria on the Burden of Malaria in Northeastern Venezuela. J Travel Med 2006; 13:15-20. 10. Rodríguez-Morales A, Sánchez E, Vargas M, Piccolo C, Colina R, Arria M, Franco-Paredes C. Is anemia in Plasmodium vivax More Severe and More Frequent than in Plasmodium falciparum? Am J Med 2006; 119:e9-10. 11. Hicks G, Barragan M, Franco-Paredes C, Williams MV, del Rio C. Health Literacy is a Predictor of HIV Knowledge. Fam Med J 2006; 10:717-723. 12. Cardenas R, Sandoval C, Rodriguez-Morales A, Franco-Paredes C. Impact of Climate Variability in the Occurrence of Leishmaniasis in Northeastern Colombia. Am J Trop Med Hyg 2006; 75:273-7. 13. Franco-Paredes C, Nicolls D, Dismukes R, Wilson M, Jones D, Workowski K, Kozarsky P. Persistent and Untreated Tropical Infectious Diseases among Sudanese Refugees in the US. Am J Trop Med Hyg 2007; 77:633-635. 14. Rodríguez-Morales AJ, Sanchez E, Arria M, Vargas M, Piccolo C, Colina R, Franco-Paredes C. Hemoglobin and haematocrit: The Threefold Conversion is also Non Valid for Assessing Anaemia in Plasmodium vivax Malaria-endemic Settings. Malaria J 2007; 6:166. 15. Franco-Paredes C, Jones D, Rodriguez-Morales AJ, Santos-Preciado JI. Improving the Health of Neglected Populations in Latin America. BMC Public Health 2007; 7. 16. Kelly C, Hernández I, Franco-Paredes C, Del Rio C. The Clinical and Epidemiologic Characteristics of Foreign-born Latinos with HIV/AIDS at an Urban HIV Clinic. AIDS Reader 2007; 17:73-88. 17. Hotez PJ, Bottazzi ME, Franco-Paredes C, Ault SK, Roses-Periago M. The Neglected Tropical Diseases of Latin America and the Caribbean: Estimated Disease Burden and Distribution and a Roadmap for Control and Elimination. PLoS Negl Trop Dis 2008; 2:e300. 18. Tellez I, Barragan M, Nelson K, Del Rio C, Franco-Paredes C. Pneumocystis jiroveci (PCP) in the Inner City: A Persistent and Deadly Pathogen. Am J Med Sci 2008; 335:192-197. 19. Rodriguez-Morales AJ, Olinda, Franco-Paredes C. Cutaneous Leishmaniasis Imported from Colombia to Northcentral Venezuela: Implications for Travel Advice. Trav Med Infect Dis 2008; 6(6): 376-9. 20. Jacob J, Kozarsky P, Dismukes R, Bynoe V, Margoles L, Leonard M, Tellez I, Franco-Paredes C. FiveYear Experience with Type 1 and Type 2 Reactions in Hansen’s Disease at a US Travel Clinic. Am J Trop Med Hygiene 2008; 79:452-454. 21. Delgado O, Silva S, Coraspe V, Ribas MA, Rodriguez-Morales AJ, Navarro P, Franco-Paredes C. Epidemiology of Cutaneous Leishmaniasis in Children and Adolescents in Venezuela. Trop Biomed. 2008; 25(3):178-83. 22. Franco-Paredes C, Lammoglia L, Hernandez I, Santos-Preciado JI. Epidemiology and Outcomes of Bacterial Meningitis in Mexican Children: 10-Years' Experience (1993-2003). Int J Infect Dis 2008; 12:380386. 23. Pedroza A, Huerta GJ, Garcia ML, Rojas A, Lopez I, Peñagos M, Franco-Paredes C, Deroche C, Mascareñas C. The Safety and Immunogenicity of Influenza Vaccine in Children with Asthma in Mexico. Int J Infect Dis 2009; 13(4): 469-75.
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24. Museru O, Franco-Paredes C. Epidemiology and Outcomes of Hepatitis B Virus Infection among Refugees Seen at U.S. Travel Medicine Clinic: 2005-2008. Travel Med Infect Dis 2009; 7: 171-179. 25. Rodriguez-Morales AJ, Olinda M, Franco-Paredes C. Imported Cases of Malaria Admitted to Two Hospitals of Margarita Island, Venezuela: 1998-2005. Travel Med Infect Dis 2009: (1): 48-45. 26. Kelley CF, Checkley W, Mannino DM, Franco-Paredes C, Del Rio C, Holguin F. Trends in Hospitalizations for AIDS-associated Pneumocystis jiroveci Pneumonia in the United States (1986-2005). Chest 2009; 136(1): 190-7. 27. Carranza M, Newton O, Franco-Paredes C, Villasenor A. Clinical Outcomes of Mexican Children with Febrile Acute Upper Respiratory Infection: No Impact of Antibiotic Therapy. Int J Infect Dis 2010; 14(9): e759-63. 28. Museru O, Vargas M, Kinyua M, Alexander KT, Franco-Paredes C, Oladele A. Hepatitis B Virus Infection among Refugees Resettled in the U.S.: High Prevalence and Challenges in Access to Health Care. J Immigrant Minor Health 2010; 29. Moro P, Thompson B, Santos-Preciado JI, Weniger B, Chen R, Franco-Paredes C. Needlestick injuries in Mexico City sanitation workers. Revista Panamericana de Salud Pública/Pan American Journal of Public Health 2010; 27 (6): 467-8. 30. Barragan M, Holtz M, Franco-Paredes C, Leonard M. The Untimely Misfortune of Tuberculosis Diagnosis at time of Death. Infect Dis Clin Pract 2010; 18(6):1-7. 31. Hochberg N, Armstrong W, Wang W, Sheth A, Moro R, Montgomery S, Steuer F, Lennox J, FrancoParedes C. High Prevalence of Persistent Parasitic Infections in Foreign-born HIV-infected Persons in the United States. PLoS Neglect Dis 2011; 5(4): e1034. 32. Larocque RC, Rao SR, Lee J, Ansdell V, Yates JA, Schwartz BS, Knouse M, Cahill J, Hagmann S, Vinetz J, Connor BA, Goad JA, Oladele A, Alvarez S, Stauffer W, Walker P, Kozarsky P, Franco-Paredes C, Dismukes R, Rosen J, Hynes NA, Jacquerioz F, McLellan S, Hale D, Sofarelli T, Schoenfeld D, Marano N, Brunette G, Jentes ES, Yanni E, Sotir MJ, Ryan ET; the Global TravEpiNet Consortium. Global TravEpiNet: A National Consortium of Clinics Providing Care to International Travelers--Analysis of Demographic Characteristics, Travel Destinations, and Pretravel Healthcare of High-Risk US International Travelers, 2009-2011. Clin Infect Dis. 2012; 54(4):455-462. 33. Espinosa-Padilla SE, Murata C, Estrada-Parra S, Santos-Argumendo L, Mascarenas C, Franco-Paredes C, Espinosa-Rosales FJ. Immunogenicity of a 23-valent pneumococcal polysaccharide vaccine among Mexican children. Arch Med Res 2012; 34. Harris JR, Lockhart SR, Sondermeyer G, Vugia DJ, Crist MB, D'Angelo MT, Sellers B, Franco-Paredes C, Makvandi M, Smelser C, Greene J, Stanek D, Signs K, Nett RJ, Chiller T, Park BJ. Cryptococcus gattii infections in multiple states outside the US Pacific Northwest. Emerg Infect Dis. 2013; 19 (10):1620-6. 35. Franco-Paredes C. Aerobic actinomycetes that masquerade as pulmonary tuberculosis. Bol Med Hosp Infant Mex 2014; 71(1): 36-40. 36. Chastain DB, Ngando I, Bland CM, Franco-Paredes C, and Hawkins WA. Effect of the 2014 Clinical and Laboratory Standard Institute urine-specific breakpoints on cefazolin susceptibility rates at a community teaching hospital. Ann Clin Microbiol Antimicrob 2017; 16(1): 43. 37. Kashef Hamadani BH, Franco-Paredes C, MCollister B, Shapiro L, Beckham JD, Henao-Martinez AF. Cryptococcosis and cryptococcal meningitis- new predictors and clinical outcomes at a United States Academic Medical Center. Mycoses 2017; doi: 10.1111/myc.12742. 38. Chastain DB, Franco-Paredes C, Wheeler SE, Olubajo B, Hawkins A. Evaluating Guideline Adherence regarding Empirical Vancomycin use in patients with neutropenic fever. Int J Infect Dis 2018; Feb 22. pii: S1201-9712(18)30052-3. doi: 10.1016/j.ijid.2018.02.016. PMID: 29477362
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39. Parra-Henao G, Amioka E, Franco-Paredes C, Colborn KL, Henao-Martinez AF. Heart failure symptoms and ecological factors as predictors of Chagas disease among indigenous communities in the Sierra Nevada de Santa Marta, Colombia. J Card Fail 2018; Mar 26. pii: S1071-9164(18)30119-2. doi: 10.1016/j.cardfail.2018.03.007. 40. Vela Duarte D, Henao-Martinez AF, Nyberg E, Castellanos P, Franco-Paredes C, Chastain DB, Lacunar Stroke in Cryptococcal Meningitis: Clinical and Radiographic Features. J Stroke and Cerebrovascular Disease 2019; 41. Chastain DB, Henao-Martinez AF, Franco-Paredes C. A clinical pharmacist survey of prophylactic strategies used to prevent adverse events of lipid-associated formulations of amphotericin B. Infect Dis 2019; 42. Henao-Martínez AF, Chadalawada S, Villamil-Gomez WE, DeSanto K, Rassi A Jr, Franco-Paredes C. Duration and determinants of Chagas latency: an etiology and risk systematic review protocol. JBI Database System Rev Implement Rep. 2019 Jul 22. doi: 10.11124/JBISRIR-D-18-00018.
CONSENSUS STATEMENTS
Pritchett MA, Oberg CL, Belanger A, De Cardenas J, Cheng G, Cumbo Nacheli G, Franco-Paredes C, Singh J, Toth J, Zgoda M, Folch E. Society for Advanced Bronchoscopy Consensus Statement and Guidelines for bronchoscopy and airway management amid the COVID-19 pandemic. J Thorac Dis 2020; http:/dx.doi.org/10.21037/jtd.2020.04.32
RESEARCH ORIGINAL ARTICLES AS COLLABORATOR (clinical, basic science, other) in refereed journals: 43. Benator D, Bhattacharya M, Bozeman L, Burman W, Cantazaro A, Chaisson R, Gordin F, Horsburgh CR, Horton J, Khan A, Lahart C, Metchock B, Pachucki C, Stanton L, Vernon A, Villarino ME, Wang YC, Weiner M, Weis S; Tuberculosis Trials Consortium. Rifapentine and Isoniazid Once a Week versus Rifampicin and Isoniazid twice a week for Treatment of Drug-susceptible Pulmonary Tuberculosis in HIVNegative Patients: a Randomised Clinical Trial. Lancet 2002; 360:528-34. 44. Weiner M, Burman W, Vernon A, Benator D, Peloquin CA, Khan A, Weis S, King B, Shah N, Hodge T; Tuberculosis Trials Consortium. Low INH Concentrations and Outcome of Tuberculosis Treatment with Once-weekly INH and Rifapentine. Am J Rev Crit Care Med 2003; 167:1341-1347. 45. Jasmer RM, Bozeman L, Schwartzman K, Cave MD, Saukkonen JJ, Metchock B, Khan A, Burman WJ; Tuberculosis Trials Consortium. Recurrent Tuberculosis in the United States and Canada: Relapse or Reinfection? Am J Respir Crit Care Med 2004; 170:1360-1366. Mendelson M, Davis XM, Jensenius M, Keystone JS, von Sonnenburg F, Hale DC, Burchard GD, Field V, Vincent P, Freedman DO; GeoSentinel Surveillance Network. Health risks in travelers to South Africa: the GeoSentinel experience and implications for the 2010 FIFA World Cup. Am J Trop Med Hyg. 2010; 82(6): 991-5. 46. Hagmann S, Neugebauer R, Schwartz E, Perret C, Castelli F, Barnett ED, Stauffer WM; GeoSentinel Surveillance Network. Illness in children after international travel: analysis from the GeoSentinel Surveillance Network. Pediatrics. 2010; 1 25(5): e1072-80.
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47. Schlagenhauf P, Chen LH, Wilson ME, Freedman DO, Tcheng D, Schwartz E, Pandey P, Weber R, Nadal D, Berger C, von Sonnenburg F, Keystone J, Leder K; GeoSentinel Surveillance Network. Sex and gender differences in travel-associated disease. Clin Infect Dis. 2010; 50 (6): 826-32. 48. Jensenius M, Davis X, von Sonnenburg F, Schwartz E, Keystone JS, Leder K, Lopéz-Véléz R, Caumes E, Cramer JP, Chen L, Parola P; GeoSentinel Surveillance Network. Multicener GeoSentinel analysis of rickettsial diseases in international travelers, 1996-2008. Emerg Infect Dis. 2009; 15(11):1791-8. 49. Chen LH, Wilson ME, Davis X, Loutan L, Schwartz E, Keystone J, Hale D, Lim PL, McCarthy A, GkraniaKlotsas E, Schlagenhauf P; GeoSentinel Surveillance Network. Emerg Infect Dis. 2009; 15(11): 1773-82. 50. Nicolls DJ, Weld LH, Schwartz E, Reed C, von Sonnenburg F, Freedman DO, Kozarsky PE; GeoSentinel Surveillance Network. Characteristics of schistosomiasis in travelers reported to the GeoSentinel Surveillance Network 1997-2008. Am J Trop Med Hyg 2008; 79(5): 729-34. 51. Greenwood Z, Black J, Weld L, O'Brien D, Leder K, Von Sonnenburg F, Pandey P, Schwartz E, Connor BA, Brown G, Freedman DO, Torresi J; GeoSentinel Surveillance Network. Gastrointestinal infection among international travelers globally. J Travel Med 2008; 1 5(4):221-8. 52. Davis XM, MacDonald S, Borwein S, Freedman DO, Kozarsky PE, von Sonnenburg F, Keystone JS, Lim PL, Marano N; GeoSentinel Surveillance Network. Health risks in travelers to China: the GeoSentinel experience and implications for the 2008 Beijing Olympics. Am J Trop Med Hyg 2008; 79(1): 4-8. 53. Boggild AK, Castelli F, Gautret P, Torresi J, von Sonnenburg F, Barnett ED, Greenaway CA, Lim PL, Schwartz E, Wilder-Smith A, Wilson ME; GeoSentinel Surveillance Network. Vaccine preventable diseases in returned international travelers: results from the GeoSentinel Surveillance Network. Vaccine 2010; 28(46):7389-95. 54. Esposito DH, Han PV, Kozarsky PE, Walker PF, Gkrania-Klotsas E, Barnett ED, Libman M, McCarthy AE, Field V, Connor BA, Schwartz E, MacDonald S, Sotir MJ; GeoSentinel Surveillance Network. Characteristics and spectrum of disease among ill returned travelers from pre- and post-earthquake Haiti: The GeoSentinel experience. Am J Trop Med Hyg 2012 Jan; 86(1):23-8. 55. Boggild AK, Castelli F, Gautret P, Torresi J, von Sonnenburg F, Barnett ED, Greenaway CA, Lim PL, Schwartz E, Wilder-Smith A, Wilson ME; GeoSentinel Surveillance Network. Latitudinal patterns of travel among returned travelers with influenza: results from the GeoSentinel Surveillance Network, 1997-2007. J Travel Med 2012; 19(1):4-8. doi: 10.1111/j.1708-8305.2011.00579.x.
REVIEW, EDITORIALS, CASE SERIES, CASE REPORT ARTICLES: 56. Franco-Paredes C, Jurado R. Ankylosing Spondylitis Fibrocavitary Lung Disease. Clin Infect Dis 2001; 32:1062. 57. Franco-Paredes C, Evans J, Jurado R. Diabetes Insipidus due to Streptococcus pneumoniae Meningitis. Arch Intern Med 2001; 161; 1114-15. 58. Franco-Paredes C, Blumberg H. Tuberculosis Psoas Abscess caused by Mycobacterium tuberculosis and Staphylococcus aureus: Case Report and Review. Am J Med Sci 2001; 321:415-17. 59. Jurado R, Franco-Paredes C. Aspiration Pneumonia: A Misnomer. Clin Infect Dis 2001;33:1612-3. 60. Del Rio Carlos, Franco-Paredes C. Bioterrorism: A New Public Health Problem. Sal Publ Mex 2001; 43:585-88.
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61. Franco-Paredes C, Blumberg H. New Concepts in the Diagnosis of Latent Tuberculosis Infection. Consultant 2001; 41:1105-1121. 62. Franco-Paredes C, Bellehemeur T, Sanghi P, et al. Aseptic Meningitis and Retrobulbar Optic Neuritis Caused By VZV Preceding the Onset of PORN in a Patient with AIDS. AIDS 2002; 16:1045-1049. 63. Franco-Paredes C, Mehrabi D, Calle J, Jurado R. Night Sweats Revisited. Infect Dis Clin Pract 2002; 11:291-293. 64. Franco-Paredes C, Jurado R, Del Rio C. The Clinical Utility of the Urine Gram Stain. Infect Dis Clin Pract 2002; 11:561-563. 65. Franco-Paredes C, Agudelo C. Editorial Response: The Ever Expanding Clinical Spectrum of Tuberculosis. J Clin Rheumatol 2002;8:1-2. 66. Franco-Paredes C, Rebolledo P, Folch E, Hernandez I, Del Rio C. Diffuse CD8 Lymphocytosis Syndrome in HIV-infected Patients. AIDS Reader 2002; 12:408-13. 67. Franco-Paredes C. Human Immunodeficiency Virus Infection as a Risk Factor for Tuberculosis Infection and Clinical Disease. Infect Med 2002; 19:475-479. 68. Franco-Paredes C, Leonard M, Jurado R, Blumberg H. Tuberculosis of the Pancreas. Report of two cases and Review of the Literature. Am J Med Sci 2002; 323(1): 54-58. 69. DiazGranados C, Franco-Paredes C, Steinberg J. A Long Suffering Patient with New Abdominal Pain. Clin Infect Dis 2002; 34(9):1213-1214; 1267-1268. 70. Franco-Paredes C, Martin K. Extranodal Rosai-Dorfman Manifested in the Meninges. Southern Med J 2002; 95(9): 1101-1104. 71. Franco-Paredes C, Workowski K, Harris M. Infective Endocarditis-Endarteritis Complicating Coarctation of the Aorta. Am J Med 2002; 112(7):590-92. 72. Folch E, Hernandez I, Barragan M, Franco-Paredes C. Infectious Disease, Non-Zero Sum Thinking and the Developing World. Am J Med Sci 2003; 326:66-72. 73. Franco-Paredes C, Santos Preciado JI. Parasitology Resources on the World Wide Web: A Powerful Tool for Infectious Diseases Practitioners. Clin Infect Dis 2003; 37:694-701. 74. Franco-Paredes C, Tellez I, Santos-Preciado JI. Monkeypox Virus Infection Appears in the Americas. Salud Publ Mex 2003; 45:428-430. 75. Franco-Paredes C, Del Rio C, Nava Frías M, Rangel Frausto S, Téllez I, Santos Preciado JI. Confronting Bioterrorism: Epidemiologic, Clinical, and Preventive Aspects of Smallpox. Sal Publ Mex 2003; 45:298309. 76. Franco-Paredes C, Kuri-Morales P, Alvarez-Lucas C, Zavala E, Betancourt M, Nava-Frias M, SantosPreciado JI. Severe Acute Respiratory Syndrome: A Global View of the Epidemic. Sal Publ Mex 2003; 45:211-220. 77. Huneycut D, Folch E, Franco-Paredes C. Atypical Manifestations of Infections in Patients with Familial Dysautonomia. Am J Med 2003; 115(6): 505-506. 78. Franco-Paredes C, Sanghi P. Progressive Multifocal Leukoencephalopathy. Infect Med 2003; 20(8):376. 79. Franco-Paredes C, Guarner J, McCall C, Mehrabi D, Del Rio C. Clinical and Pathological Recognition of Leprosy. Am J Med 2003; 114(3):246-7. 80. Franco-Paredes C, Lammoglia L, Santos Preciado JI. Historical Perspective of Smallpox in Mexico: Origins, Elimination, and Risk of Reintroduction due to Bioterrorism. Gac Med Mex 2004; 141:321-328. 81. Santos-Preciado JI, Franco-Paredes C. Influenza Vaccine in Childhood: a Preventive Strategy of National Priority. Salud Publ Mex 2004; 46:498-500.
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82. Almeida L, Franco-Paredes C, Pérez LF, Santos JI. Meningococcal Disease: Preventive and Clinical Aspects. Salud Publ Mex 2004; 46(5):438-50. 83. Franco-Paredes C, Téllez I, Del Rio C. The Inverse Relationship between Decreased Infectious Diseases and Increased Inflammatory Disease Occurrence. Arch Med Res 2004; 35:258-26. 84. Arria M, Rodríguez-Morales A, Franco-Paredes C. Galeria Eco-epidemiológica de la Cuenca Amazónica. Rev Peru Salud Publ 2005; 22:236-240. 85. Franco-Paredes C, Lammoglia L, Santos-Preciado JI. The Spanish Royal Philanthropic Expedition to Bring Smallpox Vaccination to the New World and Asia in the 19th Century. Clin Infect Dis 2005; 41:12851289. 86. Diaz-Borjon A, Lim S, Franco-Paredes C. Multifocal Septic Arthritis: An Unusual Complication of Invasive Streptococcus pyogenes Infection. Am J Med 2005. 118(8): 924-925. 87. Franco-Paredes C, Rodríguez A. Lepromatous Leprosy. Infect Med 2005 88. Santos-Preciado JI, Franco-Paredes C. Tratamiento Acortado Estrictamente Supervisado (TAES o DOTS) Para Tuberculosis en Poblaciones Con Niveles Moderados de Farmacorresistencia: Perspectiva del Impacto Internacional. Rev Inv Clin 2005; 57:488-490. 89. Rodríguez-Morales A, Sánchez E, Vargas M, Piccolo C, Colina R, Arria M, Franco-Paredes C. Severe Thrombocytopenia, Reply to Spinello et al. Clin Infect Dis 2005; 41:1211-1212. 90. Franco-Paredes C, Dismukes R, Nicolls D, Kozarsky P. Reply to Newton et al. Clin Infect Dis 2005;41:1688-1689. 91. Rodríguez-Morales A, Sánchez E, Vargas M, Piccolo C, Colina R, Arria M, Franco-Paredes C. Occurrence of Thrombocytopenia in Plasmodium vivax malaria. Clin Infect Dis 2005;41:130-131. 92. Franco-Paredes C, Rodríguez-Morales A, Santos-Preciado JI. Bioterrorism: Preparing for the Unexpected. Rev Inv Clin 2005; 57: 57(5):695-705. 93. Franco-Paredes C, Tellez I, Del Rio C, Santos-Preciado JI. Pandemic Influenza: Impact of Avian Influenza. Salud Publ Mex 2005; 2: 47(2):107-9. 94. Franco-Paredes C, Dismukes R, Nicolls D, Kozarsky D. Neurotoxicity Associated To Misdiagnosis of Malaria. Clin Infect Dis 2005; 40:1710-1711. 95. Rodríguez-Morales A, Benitez J, Franco-Paredes C. Plasmodium vivax Malaria Imported from a rural Area Near Caracas Venezuela? J Trav Med 2006; 13:325-326. 96. Franco-Paredes C, Tellez I, Del Rio C. Rapid HIV Testing. Current HIV/AIDS Reports 2006; 3:169-75. 97. Franco-Paredes C, Hidron A, Steinberg JP. Photo Quiz: An 82-year-old Female from Guyana with Fever and Back pain. Chyluria due to Wuchereria bancrofti Infection. Clin Infect Dis 2006; 42 (9): 1297; 1340-1341. 98. Franco-Paredes C, Kozarsky P, Nicolls D, Dismukes R. Pelvic Echinococcosis in a Northern Iraqi Refugee. J Trav Med 2006. 13 (2): 119-122. 99. Franco-Paredes C, Santos-Preciado JI. Prevention of Malaria in Travelers. Lancet Infect Dis 2006; 6:139-149. 100. Franco-Paredes C, Santos-Preciado JI. Reply to Christenson. Clin Infect Dis 2006; 42: 731-732. 101. Franco-Paredes C, Diaz-Borjon A, Barragán L, Senger M, Leonard M. The Ever Expanding Association between Tuberculosis and Rheumatologic Diseases. Am J Med 2006; 119:470-477. 102. Franco-Paredes C, Rouphael N, Del Rio C, Santos-Preciado JI. Vaccination Strategies to Prevent Tuberculosis in the New Millennium: From BCG to New Vaccine Candidates. Int J Infect Dis 2006; 10:93102. 103. Tellez I, Calderon O, Franco-Paredes C, Del Rio C. West Nile Virus: A Reality in Mexico. Gac Med Mex 2006; 142:493-9.
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104. Franco-Paredes C, Santos-Preciado JI. Reply to Christenson. Clin Infect Dis 2006; 42:731-732. 105. Kieny MP, Costa A, Carrasco P, Perichov Y, Franco-Paredes C, Santos-Preciado JI, et al. A Global Pandemic Influenza Vaccine Action Plan. Vaccine 2006; 24:6367-6370. 106. Franco-Paredes C, Anna Von, Alicia Hidron, Alfonso J. Rodríguez-Morales, Ildefonso Tellez, Maribel Barragán, Danielle Jones, Cesar G. Náquira, Jorge Mendez. Chagas Disease: An Impediment in Achieving the Millennium Development Goals in Latin America. BMC Int Health Hum Rights 2007; 7:7. 107. Von A, Zaragoza E, Jones D, Rodriguez-Morales A, Franco-Paredes C. New Insights into Chagas Disease: A Neglected Disease in Latin America. J Infect Developing Countries 2007; 1:99-111. 108. Tellez I, Franco-Paredes C, Caliendo A, Del Rio C. Rapid HIV Test: A Primer for Clinicians. Infect Med 2007; 24:381-385. 109. Franco-Paredes C, Rouphael N, Rodríguez-Morales A, Folch E, Mendez N, Hurst JW. Cardiac Manifestations of Parasitic Diseases Part 1. General Aspects and Immunopathogenesis. Clin Cardiol 2007; 30:195-199. 110. Franco-Paredes C, Rouphael N, Rodríguez-Morales A, Folch E, Mendez N, Hurst JW. Cardiac Manifestations of Parasitic Diseases Part 2. Myocardial Manifestations of Parasitic Diseases. Clin Cardiol 2007; 30:218-222. 111. Franco-Paredes C, Rouphael N, Rodríguez-Morales A, Folch E, Mendez N, Hurst JW. Cardiac Manifestations of Parasitic Diseases Part 3. Pericardial Manifestations of Parasitic Diseases and Other Cardiopulmonary Manifestations. Clin Cardiol 2007; 30:277-280. 112. Rouphael N, Talati N, Franco-Paredes C. A Painful Thorn in the Foot: Eumycetoma. Am J Med Sci 2007; 334:142-144. 113. Zimmer S, Franco-Paredes C. Efficacy of Nitazoxanide in the Treatment of Cyclospora cayetanensis in a Patient Allergic to Sulfas. Clin Infect Dis 2007; 44(3):466-7. 114. Kaplan R, Rebolledo P, Gonzalez E, Franco-Paredes C. An Unexpected Visitor: Mycobacterium kansasii Cutaneous Infection. Am J Med 2007; 120(5):415-6. 115. Seybold U, Blumberg H, Talati N, Franco-Paredes C. Hematogenous Osteomyelitis Mimicking Osteosarcoma due to Community Associated Methicillin-Resistant Staphylococcus aureus. Infect 2007; 35(3): 190-3. 116. Liff D, Kraft C, Pohlel K, Sperling L, Chen E, Franco-Paredes C. Nocardia Nova Aortitis Following Coronary Artery Bypass Surgery. J Am Soc Echo 2007; 20(5):537:e7-8. 117. Rodriguez-Morales AJ, Franco-Paredes C. Paracoccidiodomycosis (South American Blastomycosis) of the Larynx Mimicking Carcinoma. Am J Med Sci 2008; 335:149-150. 118. Franco-Paredes C. Filariasis due Loa loa is also a cause of Angioedema. Am J Med 2008; 121(10): e29. 119. Rodriguez-Morales A, Benitez J, Tellez I, Franco-Paredes C. Chagas Disease Screening among Latin American Immigrants in Non-endemic Settings. Travel Medicine and Infectious Disease 2008; 6:162-3. 120. Talati N, Rouphael N, Kuppali K, Franco-Paredes C. Spectrum of Central Nervous System Manifestations due to Rapidly Growing Mycobacteria. Lancet Infect Dis 2008; 8:390-8. 121. Rifakis P, Rodríguez-Morales A, Franco-Paredes C. Atypical Plasmodium vivax Malaria in a Traveler: Bilateral hydronephrosis, Severe Thrombocytopenia, and Hypotension. J Trav Med 2008; 15(2): 119-21. 122. Osorio-Pinzon J, Carvajal C, Sussman O, Buitrago R, Franco-Paredes C. Acute liver failure due to dengue virus infection. Int J Infect Dis 2008; 12: 444-445. 123. Jacob J, Franco-Paredes C. The Stigmatization of leprosy in India and its Impact on future approaches to elimination and control. PloS Neglected Tropical Diseases 2008; 30:e113.
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124. Difrancesco L, Mora L, Doss M, Small J, Williams M, Franco-Paredes C. Short of Breath: Not short of diagnosis. J Hosp Med 2009; 4(1):60-7. 125. Whitaker JA, Edupuganti S, Del Rio C, Franco-Paredes C. Rethinking Typhoid Fever Vaccines: Implications for travelers and those living in endemic areas. J Travel Med 2009, 16(1): 46-52. 126. Franco-Paredes C, Hidron A, Lesesne J, Tellez I, Del Rio C. HIV-AIDS: Pretravel recommendations and health-related risks. Topics in HIV 2009; 17(1): 2-11. 127. Franco-Paredes C, Jacob JT, Stryjewska B, Yoder L. Two patients with leprosy and the sudden appearance of Inflammation in the skin and new sensory loss. PLoS Negl Trop Dis 2009; 3(9): e425. 128. Franco-Paredes C, Hidron A, Jacob J, Nicolls D, Kuhar D, Caliendo A. Transplantation and Tropical Infectious Diseases. Int J Infect Dis 2009; 14(3): e189-96. 129. Parker S, Vogenthaler N, Franco-Paredes C. Leishmania tropica Cutaneous and Presumptive Concomitant Viscerotropic Leishmaniasis with Prolonged Incubation. Arch Dermatol 2009; 145(9): 10236. 130. DiazGranados C, Franco-Paredes C. HIV and Chagas Disease Co-Infection: An Evolving Epidemiologic and Clinical Association. Lancet Infect Dis 2009; 9:324-330. 131. Hidron A, Franco-Paredes C, Drenkard C. A rare opportunistic infection in a woman with systemic lupus erythematous and multiple skin lesions. Lupus 2009; 18 (12): 1100-3. 132. Franco-Paredes C, Kozarsky P. The Bottom Line. Am J Med 2009; 122(12): 1067-8. 133. Franco-Paredes C, Bottazzi ME, Hotez PJ. The Unfinished Agenda of Chagas Disease Control in the Era of Globalization. PLoS Negl Trop Dis. 2009 Jul 7; 3(7): e470. 134. Franco-Paredes C, Carrasco P, Del Rio C, Santos Preciado JI. Respuesta al Brote de Influenza A H1N1. Salud Publ Mex 2009; 51 (3): 183-186. 135. Franco-Paredes C. An Unusual Clinical Presentation of Posttraumatic Stress Disorder in a Sudanese Refugee. Journal of Immigrant and Minority Health 2009; 12(2): 267-9. 136. Kempker R, DiFrancesco L, Gorgojo A, Franco-Paredes C. Xantogranulomathous pyelonephritis caused by Community-Associated MRSA. Cases Journal 2009; 2: 7437. 137. Franco-Paredes C, Carrasco P, Santos-Preciado JI. The First Influenza Pandemic in the New Millennium: Lessons Learned Hitherto for Current Control Efforts and Overall Pandemic Preparedness. Journal of Immune Based Therapies and Vaccines 2009, 7:2. 138. Livorsi D, Qureshi S, Howard M, Franco-Paredes C. Brainstem Encephalitis: An Unusual Presentation of Herpes Simplex Virus Infection. J Neurol 2010; 257(9): 1432-7. 139. Del Rio C, Franco-Paredes C. The Perennial threat of influenza viruses: The Mexican Experience during the Influenza A (H1N1) 2009 Pandemic. Arch Med Res 2010; 40(8):641-2. 140. Santos-Preciado JI, Franco-Paredes C, Hernandez-Ramos MI, Tellez I, Del Rio C, Roberto TapiaConyer R. What have we learned from the Novel Influenza A (H1N1) Influenza Pandemic in 2009 for strengthening Pandemic Influenza Preparedness? Arch Med Res 2010; 40(8): 673-6. 141. Franco-Paredes C, Hernandez-Ramos MI, Del Rio C, Alexander KT, Tapia-Conyer R, Santos-Preciado JI. H1N1 Influenza Pandemics: Comparing the Events of 2009 in Mexico with those of 1976, and 19181919. Arch Med Res 2010; 40(8): 6730-6.
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142. Graham A, Furlong S, Owusu K, Margoles L, Franco-Paredes C. Clinical Management of Leprosy Reactions. Infect Dis Clin Pract 2010; 18: 234-7. 143. Hidron A, Vogenthaler N, Santos-Preciado JI, Rodriguez-Morales AJ, Franco-Paredes C, Rassi A. Cardiac Involvement with Parasitic Diseases. Clin Microb Rev 2010; 23 (2): 1-27. 144. Franco-Paredes C, Zeuli J, Hernandez-Ramos I, Santos-Preciado JI. Preserving Idealism in Global Health. Global Health Prom 2010; 17(4): 57-60. 145. Franco-Paredes C. Reconstructing the Past of Poliovirus Eradication. Lancet Infect Dis 2010; 10(10): 660-1. 146. Franco-Paredes C, Ko AI, Aksoy S, Hotez PJ. A New Clinical Section in PLoS Neglected Tropical Diseases: NTD Photo Quiz. PLoS Neglect Trop Dis 2010; 4(9): e760. 147. Tellez I, Franco-Paredes C. Actinomycetoma. PLoS Neglect Trop Dis 2010; 4(9): e772. 148. Franco-Paredes C, Hernandez I, Santos-Preciado JI. Equidad en inmunizaciones en las poblaciones más vulnerables en Mesoamérica: Plan Regional del Sistema Mesoamericano de Salud Pública. Salud Publ. Mex 2011; 53 Suppl 3:S323-32. 149. Santos-Preciado JI, Rodriguez MH, Franco-Paredes C. Equidad en Salud en America Latina: De la Oficina Panamericana de Salud Pública a la Iniciativa de Salud Pública. Salud Publ. Mex 2011; 53 Suppl 3:S289-94. 150. Rassi A Jr., Rassi A, Franco-Paredes C. A Latin-American woman with palpitations, a right bundle branch block, and an apical aneursym. PLoS Neglect Trop Dis 2011; 5(2):e852. doi: 10.1371/journal.pntd.0000852. 151. Gupta D, Green J, Franco-Paredes C, Lerakis S. Challenges in the Clinical Management of BloodCulture Negative Endocarditis: the case of Bartonella henselae infection. Am J Med 2011; 124(3):e1-2. doi: 10.1016/j.amjmed.2010.09.022. 152. Franco-Paredes C. Health Equity is not only Healthcare Delivery. Lancet 2011; 377: 1238. 153. Franco-Paredes C, Santos-Preciado JI. Freedom, Justice, and the Neglected Tropical Diseases. PLoS Neglect Trop Dis 2011; 5(8):e1235. 154. Sellers B, Hall P, Cine-Gowdie S, Hays AL, Patel K, Lockhart SR, Franco-Paredes C. Cryptococcus gattii: An Emerging Fungal Pathogen in the Southeastern United States. Am J Med Sci. 2012; 343(6):5101. doi: 10.1097/MAJ.0b013e3182464bc7. 155. Franco-Paredes C. Poliovirus eradication. Lancet Infect Dis 2012; 12(6):432-3. doi: 10.1016/S14733099(12)70102-0. 156. Franco-Paredes C, Ray S. Causes of persistent of acid-fast positive smears in patients with pulmonary tuberculosis. Am J Med 2012; 125(12):e3-4. doi: 10.1016/j.amjmed.2012.03.002. 157. Franco-Paredes C. Causes of persistent of acid-fast positive smears in patients with pulmonary tuberculosis. Am J Med 2013: 126(7):e17. doi: 10.1016/j.amjmed.2013.03.001. 158. Franco-Paredes C. Illness and Death in the Universe. Perm J. 2013; 17(4):90-1. 159. Hare A, Franco-Paredes C. Ocular Larva Migrans: A Severe Manifestation of an Unseen Epidemic. Curr Trop Med Rep 2014; 1: 69-73. 160. Franco-Paredes C. Recovering our Human Story. J Cosmology and Philosophy 2014;12: 210-213.
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161. Powell DR, Patel S, Franco-Paredes C. Varicella-Zoster virus vasculopathy: The growing association between herpes zoster virus and strokes. Am J Med Sci 2014; 350(3):243-5. 162. Franco-Paredes C. The growing threat of leishmaniasis in travelers. Trav Med Infect Dis 2014; 12(6 Pt A):559-60. doi: 10.1016/j.tmaid.2014.10.020. 163. Franco-Paredes C, Sellers B, Hayes A, Chane T, Patel K, Lockhart S, Marr K. Management of Cryptococcus gattii meningoencephalitis. Lancet Infect Dis 2014; 15(3):348-55. 164. White C, Franco-Paredes C. Leprosy in the 21st Century. Clin Microb Rev 2014; 28(1): 80-94. 165. Carrasco P, Franco-Paredes C, Andrus J, Waller K, Maassen A, Symenouh E, Hafalia G. Inaugural conference of the International Association of Immunization Managers (IAIM), Istanbul Turkey, 3-4 March 2015; Vaccine 2015; 33(33):4047-50. 166. Franco-Paredes C, Rodriguez-Morales AJ. Unsolved matters in leprosy: a descriptive review and call for further research. Ann Clin Microbiol Antimicrob 2016; 15(1):33. 167. Rodriguez-Morales AJ, Banderia AC, Franco-Paredes C. The expanding spectrum of modes of transmission of Zika virus: a global concern. Ann Clin Microbiol Antimicrob 2016; 15:13. doi: 10.1186/s12941-016-0128-2. 168. Khan MI, Katrinak C, Freeman A, Franco-Paredes C. Enteric Fever and Invasive Nontyphidal Salmonellosis – 9th International Conference on typhoid and Invasive NTS Disease, Bali, Indonesia, April 30-May 3, 2015. Emerg Infect Dis 2016; 22(4): doi: 10.3201/eid2204.151463. 169. Franco-Paredes C, Khan MI, Santos-Preciado JI, Gonzalez-Diaz E, Rodriguez-Morales AJ, Gotuzzo E. Enteric Fever: A Slow Reponse to An Old Plague. PLoS Negl Trop Dis 2016; 10(5):e0004597. doi: 10.1371/journal.pntd.0004597. 170. Rodriguez-Morales AJ, Villamil-Gomez WE, Franco-Paredes C. The arboviral burden of disease caused by co-circulation and co-infection of dengue, chikungunya and Zika in the Americas. Trav Med Infect Dis 2016; 14(3):177-9. doi: 10.1016/j.tmaid.2016.05.004. 171. Alvarado-Socarras JL, Ocampo-Gonzalez M, Vargas Soler JA, Rodriguez-Morales AJ, Franco-Paredes C. Congenital and neonatal Chikungunya in Colombia. J Pediatric Infect Dis Soc. 2016;5(3): e17-20. 172. Franco-Paredes C, Chastain DB, Ezigbo C, Callins KR. Reducing transmission of HIV in the Southeastern U.S. Lancet HIV 2017; 4(3):e101-e102. 173. Franco-Paredes C, Chastain D, Marcos LA, Rodriguez-Morales AJ. Cryptococcal meningoencephalitis in AIDS: When to start antiretroviral therapy? Ann Clin Microbiol Antimicrob 2017; 16:9. 174. Khan MI, Franco-Paredes C, Ochiai RL, Mogasale V, Sushant S. Barriers to typhoid fever vaccine access in endemic countries. Research and Reports in Tropical Medicine; 2017; 8:37-44. 175. Franco-Paredes C, Chastain D, Taylor P, Stocking S, Sellers B. Boar hunting and brucellosis caused by Brucella suis. Trav Med Infect Dis 2017; S1477-8939(17): 30037-6. 176. Chastain DB, Henao-Martinez AF, Franco-Paredes C. Cryptococcal Antigen Negative Cryptococcal Meningoencephalitis. Diagn Microbiol Infect Dis 2017; 89(2): 143-145. 177. Chastain DB, Henao-Martinez A, Franco-Paredes C. Opportunistic invasive fungal infections in HIV/AIDS: Cryptococcosis, Histoplasmosis, Coccidioidomycosis and Talaromycosis. Current Infect Dis Rep 2017; 19(10): 36.
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178. Chastain DB, Kayla Stover, Franco-Paredes C. Adressing Antiretroviral Therapy-Associated DrugDrug Interactions in Patients Requiring Treatment for Opportunistic Infections in Low-Income and Resource-Limited Settings. J Clin Pharmacol 2017; 57(11):1387-1399. 179. Franco-Paredes C. The Harmony of Disequilibrium. Permanente J. 2017; 22. doi: 10.712/TPP/17-067. 180. Franco-Paredes C, Henao-Martinez A, Chastain DB. A 27-year-old male with blurry vision, oral and nasal mucosal lesions, and a skin rash. Clin Infect Dis 2018; 181. Henao-Martinez AF, Olague N, Franco-Paredes C. Spontaneous Mycobacterium bolletti skin abscesses —an under recognized zoonosis from raw bovine milk. Trav Med Infect Dis 2018 Jan 29. pii: S1477-8939(18)30003-6. doi: 10.1016/j.tmaid.2018.01.003. PMID: 29477362. 182. Franco-Paredes C, Henao-Martinez AF, Mathur S, Villamil-Gomez W. A Man Who Harvest Peanuts with Verrucous Lesions in his Right Index Finger. Am J Med Sci 2018; Mar; 355(3):e7. doi: 10.1016/j.amjms.2017.11.010. Epub 2017 Nov 22. No abstract available. PMID: 2954993 183. Henao-Martinez AF, Franco-Paredes C, Palestine A, Montoya G. Symptomatic acute toxoplasmosis in returning travelers. Open Forum Infect Dis 2018;5(4):ofy058. doi: 10.1093/ofid/ofy058. eCollection 2018 Apr. PMID: 29644250. 184. Steele GM, Franco-Paredes C, Chastain DB. Non-infectious causes of fever in adults. Nurse Pract 2018Apr 19; 43(4):38-44. doi: 10.1097/01.NPR.0000531067.65817.7d. 185. Henao-Martinez AF, Chastain DB, Franco-Paredes C, Treatment of cryptococcosis in non-HIV immunocompromised patients. Curr Opin Infect Dis 2018; PMID 29738314. 186. Chastain DB, Sam JI, Steele GM, Lowder LO, Franco-Paredes C. Expanding Spectrum of Toxoplasmosis gondii: Thymoma and Toxoplasmic encephalitis. Open Forum Infect Dis 2018; Jul 7;5(7):ofy163. doi: 10.1093/ofid/ofy163. eCollection 2018 Jul.. 187. Bruner KT, Chastain DB, Henao-Martinez AF, Franco-Paredes C. Cryptococcus gattii complex infections in HIV-infected patients, Southeastern United States. Emerg Infect Dis 2018; 24(11): 19982002. 189. José A. Suárez, Lolimar Carreño, Alberto E. Paniz-Mondolfi, Francisco J. Marco-Canosa, Héctor Freilij, Jorge A. Riera, Alejandro Risquez, Andrea G. Rodriguez-Morales, Evimar Hernández-Rincón, Jorge Alvarado-Socarras, Gustavo Contreras, Maritza Cabrera, Rosa M. Navas, Fredi Díaz-Quijano, Tamara Rosales, Rosa A. Barbella-Aponte, Wilmer E. Villamil-Gómez, Marietta Díaz, Yenddy Carrero, Anishmenia Pineda, Nereida Valero-Cedeño, Cesar Cuadra-Sánchez, Yohama Caraballo-Arias, Belkis J. MenoniBlanco, Giovanni Provenza, Jesús E. Robles, María Triolo-Mieses, Eduardo Savio-Larriera, Sergio Cimerman, Ricardo J. Bello, Carlos Franco-Paredes, Juliana Buitrago, Marlen Martinez-Gutierrez, Julio Maquera-Afaray, Marco A. Solarte-Portilla, Sebastián Hernández-Botero, Krisell Contreras, Jaime A. Cardona-Ospina, D. Katterine Bonilla-Aldana, Alfonso J. Rodriguez-Morales. Infectious Diseases, Social, Economic and Political Crises, Anthropogenic Disasters and Beyond: Venezuela 2019-Implications for public health and travel medicine. Rev Panam Enf Inf 2018; 1(2):73-93. 190. Gharamati A, Rao A, Pecen PE, Henao-Martinez AF, Franco-Paredes C, Montoya JG. Acute Disseminated Toxoplasmosis with Encephalitis. Open Forum Infect Dis 2018; Oct 17; 5 (11):ofy259. doi: 10.1093/ofid/ofy259.
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191. Franco-Paredes C, Rodriguez-Morales AJ, Luis A. Marcos, Henao-Martinez AF, Villamil-Gomez WE, Gotuzzo E, Bonifaz A. Cutaneous Mycobacterial Diseases. Clin Microb Rev 2018; 14; 32(1). pii: e00069-18. doi: 10.1128/CMR.00069-18. 192. Henao-Martínes AF, Pinto N, Henao San Martin V, Franco-Paredes C, Gharamati A. Successful Treatment of Gonococcal Osteomyelitis with One Week of Intravenous Antibiotic Therapy. Int J STDs HIV 2019; 193. Reno E, Foster G, Franco-Paredes C, Henao-Martinez AF. Fatal fulminant hepatitis A in a US traveler returning from Peru. J Trav Med 2019. 194. Canfield G, C, Mann S, Zimmer S, Franco-Paredes C. A 31-Year-Old Micronesian Man with Shoulder Fungating Mass. Clin Infect Dis 2019; 195. Parra-Henao G, Oliveros H, Hotez PJ, Motoa G, Franco-Paredes C, Henao-Martínez AF. In Search of Congenital Chagas Disease in the Sierra Nevada de Santa Marta, Colombia. Am J Trop Med Hyg. 2019;101(3):482-483. doi: 10.4269/ajtmh.19-0110. PMID: 31264558. 196. Bonilla-Aldana DK, Suárez JA, Franco-Paredes C, Vilcarromero S, Mattar S, Gómez-Marín JE, VillamilGómez WE, Ruíz-Sáenz J, Cardona-Ospina JA, Idarraga-Bedoya SE, García-Bustos JJ, Jimenez-Posada EV, Rodríguez-Morales AJ. Brazil burning! What is the potential impact of the Amazon wildfires on vectorborne and zoonotic emerging diseases? - A statement from an international experts meeting. Travel Med Infect Dis. 2019:101474. doi: 10.1016/j.tmaid.2019.101474. 197. Henao-Martinez AF, Archuleta S, Vargas D, Franco-Paredes C. A Latin American patient with a left ventricular pseudoaneurysm presenting with progressive dyspnea and palpitations. Am J Med 2019; doi: 10.1016/j.amjmed.2019.10.006 198. Canfield GS, Henao-Martinez AF, Franco-Paredes C, Zhelnin K, Wyles D, Gardner EM. Corticosteroids for post-transplant Immune reconstitution syndrome in Cryptococcus gattii Meningoencephalitis: Case report and literature review. Open Forum Infect Dis 2019; 6(11): ofz460. Doi: 10.1093/ofid/ofz460. PMID: 31737740. 199. Kon S, Hawkins K, Franco-Paredes C. Intramedullary Spinal Cord Lesions in an Immunocompromised Host due to Mycobacterium Haemophilum. ID Cases 2019; 200. Franco-Paredes C, Rodriguez-Morales AJ, Henao-Rodriguez AJ, Carrasco P, Santos-Preciado JI. Vaccination Strategies to prevent paralytic poliomielitis due to cVDPV2. Lancet Infect Dis 2019; 201. Motoa G, Pate A, Franco-Paredes C, Chastain D, Henao-Martinez Aj, Hojat L. Use of procalcitonin to guide discontinuation of antimicrobial therapy in patients with persistent intra-abdominal collections: A case series. Case Rep Infect Dis 2019; 202. Murillo-Garcia D, Galindo J, Pinto N, Motoa G Benamu E, Franco-Paredes C, Chastain D, HenaoMartinez AF. Anaerobic bacteremias in left ventricular assist devices and advanced heart failure. Case Rep Infect Dis 2019; 204. Franco-Paredes, C, Villamil-Gómez Wilmer E., Schultz, J, Henao-Martínez AF, Parra-Henao, G, Rassi Jr. A, Rodriguez-Morales AJ, Suarez JA. A Deadly Feast: Elucidating the Burden of Orally Acquired Acute Chagas Disease in Latin America - Public Health and Travel Medicine Importance. Trav Med Infect Dis 2020;
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205. Reno E, Quan N, Franco-Paredes C, Chastain DB, Chauhan L, Rodriguez-Morales AJ, Henao-Martinez A. Prevention of Yellow Fever in Travelers: An Update. Lancet Infect Dis 2020; 206. Franco-Paredes C, Griselda Montes de Oca Sanchez, Cassandra White. Global Leprosy Status 2020: Still Losing Touch. Ann Acad Med Singapore 2020; 207. Rodriguez-Morales AJ, Gallego V, Escalera-Antezana JP, Mendez CA, Zambrano LI, Franco-Paredes C, Suarez JA, Rodriguez-Enciso HD, Balbin-Ramon GH, Savio-Larriera E, Risquez A, Cimerman S. COVID-19 in Latin America: The implications of the first confirmed case in Brazil. Travel Med Infect Dis 2020; doi: 10.1016/j.tmaid.2020.101613. 208. Rodríguez-Morales AJ, Cardona-Ospina JA, Gutiérrez-Ocampo E, Villamizar-Peña R, Holguin-Rivera Y, Escalera-Antezana JP, Alvarado-Arnez LE, Bonilla-Aldana DK, Franco-Paredes C, Henao-Martinez AF, Paniz-Mondolfi A, Lagos-Grisales GJ, Ramírez-Vallejo E, Suárez JA, Zambrano LI, Villamil-Gómez WE, Balbin-Ramon GJ, Rabaan AA, Harapan H, Dhama K, Nishiura H, Kataoka H, Ahmad T, Sah R, On behalf of the Latin American Network of Coronavirus Disease 2019-COVID-19 Research (LANCOVID-19) (www.lancovid.org). Clinical, Laboratory and Imaging Features of COVID-19: A systematic review and meta-analysis. Travel Med Infect Dis 2020; 209. Meyer J, Franco-Paredes C, Yaizal F, Gartland M, Parmar P. COVID-19 and the Coming Plague in U.S. Immigration Detention Centers. Lancet Infect Dis 2020; 210. Basco SA, Steele GM, Henao-Martinez AF, Franco-Paredes C, Chastain DB. Unexpected etiology of a pleural empyema in a patient with chronic lymphocytic leukemia (CLLL): Capnocytophaga ochracea. ID Cases 2020: Mar 20;20:e00747. doi: 10.1016/j.idcr.2020.e00747. eCollection 2020. 211. Franco-Paredes C. Albert Camus’ ‘The COVID-19 Plague” Revisited. Clin Infect Dis 2020 Apr 17. pii: ciaa454. doi: 10.1093/cid/ciaa454 212. Pritchett MA, Oberg CL, Belanger A, De Cardenas J, Cheng G, Cumbo Nacheli G, Franco-Paredes C, Singh J, Toth J, Zgoda M, Folch E. Society for Advanced Bronchoscopy Consensus Statement and Guidelines for bronchoscopy and airway management aid the COVID-19 pandemic. J Thorac Dis 2020 | http://dx.doi.org/10.21037/jtd.2020.04.32.
BOOK CHAPTERS: Franco-Paredes C, Albrecht H. Anisakiasis (2007). In: Antimicrobial Therapy and Vaccines; Volume I: Microbes (www.antimicrobe.org), Yu VL, et al. (Ed). ESun Technologies, Pittsburgh, PA. 2007. Franco-Paredes C, Albrecht H. Visceral Larva Migrans (2007). In: Antimicrobial Therapy and Vaccines; Volume I: Microbes (www.antimicrobe.org), Yu VL, et al. (Ed). ESun Technologies, Pittsburgh, PA. 2007. Franco-Paredes C. American Trypanosomiasis. Chagas’Disease. In: Eds: Kozarsky P, Arguin P, Reed C. Yellow Book: Health Information for Travelers 2007-2008, Centers for Disease Control and Prevention, Elsevier Ltd. Franco-Paredes C. The Post-travel Period. In: Eds: Kozarsky P, Arguin P, Reed C. Yellow Book: Health Information for Travelers 2007-2008, Centers for Disease Control and Prevention, Elsevier Ltd.
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Carlos Franco-Paredes, MD, MPH
Hidron A, Franco-Paredes C. American Trypanosomiasis. Chagas’Disease. In: Eds: Brunnete GW, Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2009-2010, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-3481-7. Franco-Paredes C. General Approach to the Returned Traveler. In: Eds: Brunnete GW, Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2009-2010, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-3481-7. Franco-Paredes C. Asymptomatic Screening of the Returned Traveler. In: Eds: Brunnete GW, Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2009-2010, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-3481-7. Franco-Paredes C, Santos-Preciado JI. Introduction of Antimicrobial Agents in Poor-Resource Countries: Impact on the Emergence of Resistance. In: Antimicrobial Resistance in Developing Countries. Ed. Byarugaba DK, Sosa A. Springer Science & Business Media, 2010. Hidron A, Franco-Paredes C. American Trypanosomiasis. Chagas’Disease. In: Eds: Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2011-2012. Centers for Disease Control and Prevention, Elsevier Ltd, 2011. ISBN: 978-0-7020-3481-7. Franco-Paredes C, Hochberg N. General Approach to the Returned Traveler. In: Eds: Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2011-2012, Centers for Disease Control and Prevention, Elsevier Ltd, 2011. ISBN: 978-0-7020-3481-7. Franco-Paredes C. Asymptomatic Screening of the Returned Traveler. In: Eds: Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2011-2012, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-3481-7. Hochberg N, Franco-Paredes C. Emerging Infections in Mobile Populations. In: Emerging Infections 9. Ed. Scheld WM, Grayson ML, Hughes JM. American Society of Microbiology Press 2010. ISBN. 978-1-55581525-7. Franco-Paredes C, Chagas Disease (American Trypanosomiasis). In: Farrar J, Hotez P, Junghanss T, Kang G, Lalloo D, White NJ. Manson’s Tropical Medicine 23rd Edition, Elsevier, London, U.K., 2014. Franco-Paredes C, Keystone J. Fever in the Returned Traveler. In: Empiric, Antimicrobial Therapy and Vaccines (www.antimicrobe.org). Yu VL, et al (Ed). ESun Technologies, Pittsburgh, PA, 2014. Franco-Paredes C. Mycobacterium leprae (Leprosy). In: Antimicrobial Therapy and Vaccines (www.antimicrobe.org). Yu VL, et al (Ed). ESun Technologies, Pittsburgh, PA, 2015 Franco-Paredes C, Albrecht H. Anisikasis In: Antimicrobial Therapy and Vaccines (www.antimicrobe.org). Yu VL, et al (Ed). ESun Technologies, Pittsburgh, PA, 2015. Franco-Paredes C. Illness and Death in the Universe. In: Narrative Medicine Anthology. Ed: Tom Janisse. The Permanente Press, Oakland, California, Portland Oregon, 2016, pp. 23-25. ISBN: 978-0-9770463-4-8. Villamil-Gomez W, Reyes-Escalante M, Franco-Paredes C. Severe and complicated malaria due to Plasmodium vivax. In: Current Topics in Malaria. Ed: Rodriguez-Morales AJ. ISBN 978-953-51-2790-1, Print ISBN 978-953-51-2789-5. InTechOpen 2016. Franco-Paredes C. Mycobacterial Infections of the Central Nervous System. In: The Microbiology of the Central Nervous System Infections. Ed. Kon K, Rai M. Elsevier 2018. ISBN 978-0-12-813806-9 Franco-Paredes C. Leprosy. In: Neglected Tropical Diseases. Drug Discovery and Development. Ed: Swinney D, Pollastri. Wiley-VCH Verlag GmbH & Co. KGaA, 2019. Franco-Paredes C, Henao-Martinez AJ. Legal Perspectives in Travel Medicine. In: Eds: Kozarksy P, Weinberg M. Yellow Book: Health Information for Travelers 2019-2020, Centers for Disease Control and Prevention, Elsevier Ltd, 2011. ISBN: 978-0-7020-3481-7.
18

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 64 of 95
Carlos Franco-Paredes, MD, MPH
Franco-Paredes C. Prevención de la transmisión. In: Guerrero MI, Hernández CA y Rodríguez G Editores La lepra: una enfermedad vigente. Centro Dermatológico Federico Lleras Acosta Bogotá DC, Colombia. Panamericana Formas e Impresos. 2019. p. 309-322.
Published Abstracts in Peer-Reviewed Journals: Kleinschmidt-DeMasters B, Hawkins K, Franco-Paredes C. Non-tubercular mycobacterial spinal cord abscesses in an HIV plus male due M. haemophilum. J Neuropathol Experim Neurol 2018; 77(6): 532. Pate A, Franco-Paredes C, Henao-Martinez A. Cryptococcal meningitis: A comparison of clinical features and outcomes by HIV Status. Open Forum Infect Dis 2019; Oct 6 (Suppl 2): S629-S630. PMC6809090.

FORMAL TEACHING

Medical Student Teaching

2001 - 2002 Clinical Methods, Emory University School of Medicine

2001 - 2002 Clinical Instructor Harvey Cardiology Course, Emory University School of Medicine

2001 - 2002 Problem-Based Learning for Second year Medical Students, EUSM

2005-2011 Clinical Methods Preceptor, ECLH

2006-2008 Medical Spanish - Instructor for M2, EUSM

2006-2007 Directed Study on Social Determinants of Infectious Diseases for M2 students (Lindsay

Margolis and Jean Bendik), EUSM

2007-2011 Instructor - Global Health for M2 Students, EUSM

2007-2008 Presentation-Case Discussion – Social Determinants of Diseases – Coordinated by Dr. Bill

Eley – Emory School of Medicine New Curriculum.

2018-

Small Group: Parasitic Diseases, Microbiology Course for First Year Medical Students,

University of Colorado, Anschutz Medical Center.

2019-

MS-2 Small group discussion Microbiology, University of Colorado, Anschutz Medical

Center: Parasitic Diseases, CNS Infections, Septic Arthritis-Cat Bite

2019-

Class Global Health and Underserved Populations of the New SOM CU Curriculum.

Course Co-Director. Pilot Class (Jan 6-Jan 17, 2020).

2020-

MS-2 Small group discussion Microbiology, University of Colorado, Anschutz Medical

Center: Parasitic Diseases, CNS Infections, Septic Arthritis-Cat Bite

Graduate Program

Training programs

2006-2011 Professor - GH511 (Global Health 511) International Infectious Diseases Prevention and

Control, Rollins School of Public Health

2009-2011 Professor – GH500 D – Key Issues in Global Health, Career MPH Program

2006-2011 Thesis Advisor to students Global Health Track – Hubert Department of Global Health,

Rollins School of Public Health of Emory University

2008-2011 Coordinator International Exchange between Rollins School of Public Health and

National Institute of Public Health, Cuernavaca, Mexico – Supported by the Global Health

Institute of Emory University

Residency and Fellowship Program:

2004-2011 Resident Report – Noon Conferences Emory Crawford Long Hospital and Grady

19

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Carlos Franco-Paredes, MD, MPH

Memorial Hospital

2004-2011 Didactic Lectures on Parasitic Diseases and Non-tuberculous mycobacterial diseases for

Internal Medicine Residents and Infectious Disease Fellows

2005-2008 Coordinator Journal Club Infectious Disease Division

2005-2011 Travel Medicine Elective, Internal Medicine Residents (2 internal residents per month)

2005

Grand Rounds – EUH - Department of Medicine: “Travel Medicine”

2006

Grand Rounds – ECLH – Department of Medicine: “Malaria”

2008

Grand Rounds - ECLH – Department of Medicine: “Leprosy”

2008-2011 Journal Club Coordinator, Internal Medicine Residency Program – ECLH

2009

Grand Rounds - EUH – Department of Medicine: “Leprosy a Modern Perspective of an

Ancient Disease”

2009

Grand Rounds – Pulmonary and Critical Care Division – Neglected Tropical Diseases of

the Respiratory Tract, June 16, 2009

2017

Grand Rounds – Leprosy, University of Colorado, Anschutz Medical Center, Division of

Infectious Diseases, December 2017

2017

Grand Rounds – Infections associated with Secondary Antiphospholid Syndrome,

University of Colorado, Anschutz Medical Center, Division of Rheumatology,

2018

Didactic Session – Travel Medicine (Pretravel and Postravel) Infectious Diseases

Fellowship Anschutz Medical Center, Division of Infectious Diseases

2017-

Infectious Diseases Fellows Clinic, University of Colorado, Anschutz Medical Center,

IDPG.

2019

Invited Speaker: Travel Medicine, Pretravel/Postravel Care, Physician Assistant Program,

September 12, 2019, University of Colorado, Anschutz Medical Center

Other categories:

2000-2002 Physician Assistant Supervision during Fellowship/Junior Faculty, Emory University

2004-2007 Mentoring of four College Students to enter into Medical School (Emory, Southern

University, and Dartmouth):

Lindsay Margolis 2004-Emory University

Michael Woodworth 2005 – Emory University

Peter Manyang 2007 – Southern University

Padraic Chisholm 2007 – Southern University/Emory University

2009-2011 Project Leader. Partnership – Emory Global Health Institute – University-wide - Emory

Travel Well Clinic and is titled Hansen’s disease in the state of Georgia: A Modern

Reassessment of an Ancient Disease”.

http://www.globalhealth.emory.edu/fundingOpportunities/projectideas.php. Students:

5 MPH students (RN/MPH, MD/MPH)

2017-

Infectious Diseases Fellowship Program, University of

Colorado, Anschutz Medical Center. Teaching activities

Inpatient and outpatient (ID Fellows Weekly Clinic)

2019-

Infectious Diseases Fellowship Program Director

University of Colorado, Aurora Colorado

Supervisory Teaching: Ph.D. students directly supervised: Global Health, Rollins School of Public Health - PhD Task Force Member – 2007-2009
20

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 66 of 95
Carlos Franco-Paredes, MD, MPH
Residency Program: Emory University: Internal Medicine Residents and Infectious Disease Fellows Supervision – Inpatient Months – 3-4 months per year on Grady Wards. I participated in the presentation and discussion of clinical cases, and discussion of peer-reviewed journal with medical students, residents, and fellows. Overall evaluations: Outstanding Teacher. (Anna Von 2005-2006; Seth Cohen 2008, Susana Castrejon 2007; Lindsay Margoles 2007-2008; Jean Bendik 2006-2008; Meredith Holtz 2007-2008) University of Colorado, Anschutz Medical Center (since June 2017- present). Case discussion in infectious diseases during clinical rounds inpatient services (ID Gold, ID Blue, ID Orthopedics). 2004-2009 Thesis advisor – MPH Students – Hubert Department of Global Health – Concentration Infectious Diseases: Brenda Thompson 2004; Katrina Hancy 2004; Trina Smith 2006; Melissa Furtado 2007-2008; Oidda Museru 2008-2009; Hema Datwani 2010; Ruth Moro 2010; Talia Quandelacy 2010 2015 – Class GH511, Topic: “Leprosy” as part of the International Infectious Diseases, Global Health Track, Rollins Schoolf of Public Health, Emory University, Atlanta GA 2017 – Class GH511, Topic: “Leprosy” as part of the International Infectious Diseases, Global Health Track, Rollins School of Public Health, Emory University, Atlanta GA 2019 - Project Mentorship – Diffuse lepromatous leprosy. Undergraduate Student, University of Colorado, Boulder. Mikali Ogbasselassie. Project was carried out in Collaboration with the Dermatology Center of the Hospital General de Mexico. Poster presentation by Mikali Ogbasselassie September 22, 2019, UMBC, Baltimore, Maryland.
21

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EXHIBIT 6

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 68 of 95
5175 Chase Oaks Dr. Sarasota, Fl 34241
May 14, 2020
Dear Judge Humetewa and Magistrate Judge Fine:
Although I am unable to appear in-person, I am willing and able to advise the court and inspectors appointed by the court in any inspection of the Central Arizona Florence Correctional Complex to assess its social-distancing and hygienic practices and whether these practices comply with recommendations of public-health experts and are adequate to protect detainees in the facility from COVID-19.
I am available to do this on short notice, including the week of May 18, 2020, and am willing to work alone or in consultation with others as the court may prefer.
I have also reviewed Federal Rule of Evidence 706 and understand that under that rule I may be deposed by either party, cross-examined, and called by the court to testify.
I am uniquely qualified to help given my practical experience working in and around jails all my professional life, beginning in 1969 as a parole officer. More recently, in 2012, I was appointed Commissioner of the New York City Department of Probation; a year later, I also became Commissioner of the New York City Department of Correction (the City’s jail system) and held both positions from 2013 until 2019. Additionally, from 2010 until 2018 I served as executive director and chief operating officer for the New York State Division of Parole and held a variety of positions within the Department of Correctional Services including Superintendent of Hudson (New York State) Correctional Facility. From March 1995 until January 2000, I served as Pennsylvania’s Secretary of Corrections. I retired in January 2020 from a ten year term as Distinguished Lecturer at John Jay College of Criminal Justice, City University of New York.
I have also served as co-chair of the American Bar Association Corrections Committee and have chaired the policy and resolutions committees of both the American Correctional Association and the Association of State Corrections Administrators. I served as a member of the Commission on Accreditation for Corrections and am a member of the Advisory Board of the New York State Commission on Quality of Care for Persons with Disabilities established by the State’s Special Housing Unit Exclusion Law.
Given my experience, I am confident I can help the court and any inspectors formulate a plan for inspection and/or help decide how to best execute such a plan, in light of the unique operating structures of jail systems.
Sincerely,
Martin F. Horn

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 69 of 95

MARTIN F. HORN 917-513-7877
mfhorn626@yahoo.com

EMPLOYMENT

EXECUTIVE DIRECTOR SYSTEM NEW YORK STATE SENTENCING JAY COMMISSION OCTOBER, 2010-OCTOBER 2018

NEW YORK STATE UNIFIED COURT APPOINTMENT CONCURRENT WITH JOHN COLLEGE APPOINTMENT

DISTINGUISHED LECTURER JUSTICE SEPTEMBER 2009-PRESENT

JOHN JAY COLLEGE OF CRIMINAL CITY UNIVERSITY OF NEW YORK

COMMISSIONER OF CORRECTION January 2003-August 2009

CITY OF NEW YORK

COMMISSIONER OF PROBATION January 2002-August 2009

CITY OF NEW YORK

SECRETARY OF ADMINISTRATION January 2001 – December 2001

COMMONWEALTH OF PENNSYLVANIA

SECRETARY OF CORRECTIONS March 1995 – December 2000

COMMONWEALTH OF PENNSYLVANIA

EXECUTIVE DIRECTOR August 1991 – February 1995

NEW YORK STATE DIVISION OF PAROLE

DIRECTOR OF PAROLE OPERATIONS April 1985 – August 1991

NEW YORK STATE DIVISION OF PAROLE

SUPERINTENDENT April 1984 – April 1985

HUDSON CORRECTIONAL FACILITY

ASSISTANT COMMISSIONER SERVICES December 1980 – April 1984

DEPARTMENT OF CORRECTIONAL STATE OF NEW YORK

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 70 of 95

CONFIDENTIAL ASSISTANT SERVICES TO THE COMMISSIONER December 1978 – December 1980
DIRECTOR SERVICES TEMPORARY RELEASE PROGRAMS June 1977 – December 1978
ASSISTANT PROFESSOR CRIMINAL JUSTICE January 1975 – June 1977
SENIOR PAROLE OFFICER PAROLE OFFICER June 1969 – January 1975

DEPARTMENT OF CORRECTIONAL STATE OF NEW YORK
DEPARTMENT OF CORRECTIONAL STATE OF NEW YORK
STATE UNIVERSITY COLLEGE, SUNY UTICA, NEW YORK
NEW YORK STATE DIVISION OF PAROLE

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 71 of 95

EDUCATION
M.A., CRIMINAL JUSTICE 1974
B.A., GOVERNMENT 1969

JOHN JAY COLLEGE CITY UNIVERSITY OF NEW YORK
FRANKLIN & MARSHALL COLLEGE LANCASTER, PA

PUBLICATIONS
Bonacum, William T., Farmer, Michael T., Fein, Scott N., and Horn, Martin F. Crime and Justice in New York: Proceedings of the Governor’s Conference on Crime. Albany: Office of the Governor, 1982.
Dvoskin, J. and Horn, M. (July August 1994). Parole Mental Health Evaluations, Community Corrections Report, 1(6), 5-6.
Greifinger, R.B., Horn, M. Quality Improvement through Care Management, chapter in Puisis, M. (Ed.), Clinical Practice in Correctional Medicine, St. Louis: Mosby, 1998.
Horn, M. (1999, Feb.-March). Avoiding 20-20 Hindsight by Getting Back to Basics: Lessons Learned From a Major Escape. Correctional Security Report, 1(1), 1-2, 13.
Horn, M. (1999, winter). Change and Challenge: Pennsylvania’s Prison System. Corrections: The Newsletter of the Pennsylvania Bar Association Committee on the Corrections System, 1(3), 1-4.
Horn, M. (2001, summer). Rethinking Sentencing. Corrections Management Quarterly, 5(3), 34-40.
Smith, D. and Horn, M, Public Safety Policy in New York State. Chapter in Benjamin, G. (Ed.), Oxford Handbook of New York State Politics, New York: Oxford University Press, 2012.
Horn, M. F. Corrections in the 21st Century. Chapter in Carlson, Peter (Ed.), Prison and Jail Administration: Theory and Practice (3 ed.) (2013). Sudbury, MA: Jones and Bartlett.
Horn, M.F. and Moser, R.J. (Winter 2014) NYC FUSE Reentry Housing: A Scalable, Data-Driven Solution for a “Wicked Issue,” Government Law and Policy Journal, 16:2. New York State Bar Association and Albany Law School.
PAPERS PRESENTED
Horn, M. “Project Zero: Pathway to Reform,” a paper presented at the Disproportionate Minority Confinement Conference of the Franklin H. Williams Judicial Commission on Minorities, New York State Judicial Institute, White Plains NY(September 18, 2006);“Overall Systems Management in Corrections,” A paper presented at the US Dept of State Latin America Regional Workshop,

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 72 of 95
Bridgetown, Barbados October 23, 2009; “Creating Safe Correctional Environments,” A paper presented at the AGM of the International Corrections and Prisons Association, Bridgetown Barbados, October 27,2009;”Practitioner Reflections on the Use of Evidence in Management of Correctional Facilities,” Fall Research Conference of the Association for Policy Analysis and Management Washington, DC November 6, 2009;“Using Performance Measurement to Improve Human Rights in Prisons and Jails,” A Paper presented at the 9th Biennial International Conference, John Jay College of Criminal Justice, Marrakech, Morocco June 4.2010;“Acts of Violence, Death and Suicide in the Context of Prisons” A paper presented at the IId Latin American Regional Corrections Seminar, Buenos Aires, Argentina, June 9, 2010; “Safe Lawful and Ethical Correctional Environments and Human Rights,” a paper presented at Conferencia Regional Penitenciaria Sur-Sureste de Mexico, Sistema Penitenciario Federal Mexico, Quintana Roo, Mexico, Non-Academic, International, Invited. (May 6, 2012). “Creating A Jail Reentry Program in a Large Urban Setting,” a paper presented at the Annual General Meeting and Conference, International Corrections and Prisons Association, Singapore. (September 13, 2012). “Determining Readiness to Undertake Prison Reform: A Modest Proposal,” a paper presented with Gabriela Perez Garcia at the Annual General Meeting of the International Corrections and Prisons Association, Colorado Springs, CO. October 30, 2013.
Horn, M. “Prison Reform: Problematic Necessity,” The Human Dignity Lecture presented at the Center for Church Life, University of Notre Dame, October 8, 2014, Notre Dame, IN.
EXPERT WITNESS
Jeanette Perez v State of New York, et. Al New York State Court of Claims, Claim No. 108710 (2010) (Testified as Expert in New York Court of Claims on behalf of respondent Defendant State of New York)
Alan Newton v. City of New York et. Al SDNY 07-CV6211SAS (2010) (Prepared report on behalf of respondent defendant City of New York)
Tamarra Sowell, (as personal representative,) administrator for the Estate, and on behalf of the heirs ) of Adekunle Odumabo v. Roy Dominguez, individually and in his official capacity as sheriff of Lake County, Indiana; Northern District Indiana, Hammond, 2:09-CV-0047 (Prepared report and provided deposition on behalf of plaintiff)
Israel Bornstein as Administrator v County of Monmouth, Monmouth County Sheriff’s Office, et. Al U. S. District Court District of New Jersey 3:11-cv-05336-PGS-DEA (Testified as expert on behalf of plaintiff Israel Bornstein, US District Court, District of New Jersey.)
Farris v. Franklin County, 14-cv-05083 Eastern District of Washington (report for plaintiff0
Ellis Walker, v. Deborah Schult, et. Al Civil Action No. 11-CV-00287 (LEK-RFT) United States District Court for the Northern District of New York (report and deposition for plaintiff)
State v Daniel Charles, resentencing hearing, Meade Co. South Dakota October 22, 2015, (report and testified as expert for defendant Daniel Charles)
Sheppard v Zavis, 1:11-cv-02398-NLH-KMW, United States District Court for the District of New Jersey, deposition. (report and deposition for plaintiff)

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 73 of 95
Bradley Peterson v Christopher Holmes; James Kiel, Captain R. Ortiz, et. Al 11-cv-02594, United States District Court for the District of New Jersey, deposition. (report, deposition and court appearance for plaintiff)
Reginald Potts v John Manos et. Al, 11-cv-3952, United States District Court, Northern District of Illinois, (report and deposition for defendant) Reginald Potts v Daniel Moreci et. Al, 11-cv-5310, United States District Court, Northern District of Illinois, (report and deposition for defendant)
Mark Duke, et al v Jefferson Dunn, et. Al, 4:14-CV-1952 VEH, United States District Court, Northern District of Alabama, deposition (for plaintiff)
Arthur Johnson v. John Wetzel, et. Al, 1:16-cv-00863-CCC-MCC, United States District Court, Middle District of Pennsylvania, (testified as expert for plaintiff)
Lillyan Ryan, as Administrator, of the Estate Bartholomew Ryan, deceased, and Lillyann Ryan, individually v. County of Nassau, et al. 12-CV-5343, United States District Court, Eastern District of New York (expert trial testimony for plaintiff)
Charles Gifford v. Orlando Harper, et. Al, 2:15-cv-00613, United States District Court for the Western District of Pennsylvania (report and expert trial testimony for plaintiff)
Kalvin Donnell Howard v. A. David Robinson, et. Al 1:10-cv-147 (LMB/TRJ) United States District Court for the Eastern District of Virginia (report and expert trial testimony for plaintiff)
Kendrid Hamlin, petitioner v William J. Smith, et. Al respondents Case No. 2015 CF3 9721, Case No. 2015 CF 18179 Superior Court of the District of Columbia, Criminal Division. (Report and testimony for petitioner)
Mary Jane Rivas v. WA State Dept of Corrections, Dick Morgan, Bernie Warner, Dan Pacholke, Donna Zavislan, Margaret Gilbert, George Gilbert Superior Court of Washington, County of Thurston (October 2017 Report for Defendant State employees)
Elliot Cortes v. Correctional Officers Donovan Bynum, Terrell Felts, et. Al Court of Common Pleas, Philadelphia PA Docket 000744 (report for plaintiff December 2017)
P.D. (a pseudonym) v Middlesex Co. Superior Court of the State of New Jersey, Law Division: Middlesex Co. MID-L-3811-14 (report and deposition for respondent County)
Reynolds v. Arnone, et. Al United States District Court, District of Connecticut CV3: 13: CV 1465 (SRU) (report and deposition for plaintiff)
Carol Ann Conforti, Individually and as Administratrix ad Prosequendum of the Estate of Kenneth Conforti and as Parent, Natural Guardian and Guardian ad Litem of A.C., a minor, Plaintiff, v. County of Ocean; Ocean County Board of Chosen Freeholders (in their individual and official capacities); Ocean County Department of Corrections; Warden Theodore J. Hutler (in his individual and official capacity); et. Al, Defendants. Superior Court of New Jersey, Law Division: Ocean County Docket No.: OCN-L-2340-15 (consolidated with Docket No. OCN-L-1215-15) (report and testimony for plaintiff)

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 74 of 95
Antoine Miles v. David Guice, et al., 5:13-CT-3193-FL, United States District Court, Eastern District of North Carolina (report for plaintiff)
Johnny Morgan v. United States of America, 14 Civ. 7921 (DCF) United States District Court, Southern District of New York (report, deposition and trial testimony for plaintiff)
MATTHEW ANDERSON v. LIEUTENANT JOHN BONNEWELL, individually, SERGEANT BRUCE TAYLOR, individually, CORRECTIONAL OFFICER ZACHARY PETTYJOHN, individually, CORRECTIONAL OFFICER EDGAR VERDE, individually, and CORRECTIONAL OFFICER JOHN BUNTING, individually C.A. No. N17C-02-080 FWW, SUPERIOR COURT OF THE STATE OF DELAWARE (report and deposition for plaintiff)
Walker v City of St Ann Case No. 4:16-cv-1302 Unite States District Court Eastern District of Missouri Eastern Division (report for plaintiff)
Kelvin A. Alexander, plaintiff v. Willis J. Fowler et. Al. No. 16 CVS 13337 General Court of Justice Superior Court Division, State of North Carolina, County of Wake (report for plaintiff)
Ellis Walker, plaintiff v. Deborah G. Schult, et. Al., defendants N. 9:11-ov-287 (LKE/RFT) United States District Court, Northern District of New York (report, deposition and trial testimony for plaintiff)
DOMESTIC AND INTERNATIONAL CONSULTING
• Morocco Juvenile Corrections Project- consultant to Government of Morocco through KeyPoint Government Solutions under their subcontract with BlueLaw International, as part of an initiative funded by the US State Department Bureau of International Narcotics and Law Enforcement Affairs. I assisted in the development of standards for Child Protection Centers, advised on creation of inspection services and provided training of their first inspectors.
• Training consultant to the Federal Penitentiary Service United States of Mexico 2010-2012
• Developed Corrections Needs Assessment Methodology for Inter-American Development Bank, Washington, D.C. November 2013. Contract purchase order 72524
• Consultant to Gartner Consulting 2012-2016

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 75 of 95
EXHIBIT 7

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 76 of 95

Department of Sociology P.O. Box 284162 Coral Gables, FL 33124-2030

Phone: 305.284.6762 FAX: 305.284.5310

May 13, 2020
Dear Judge Humetewa and Magistrate Judge Fine:
I am willing and able to conduct an in-person inspection of the Central Arizona Florence Correctional Complex to assess its social-distancing and hygienic practices and whether these practices comply with recommendations of public-health experts and are adequate to protect detainees in the facility from COVID-19. I am available to do this on short notice, including the week of May 18, 2020, and am willing to work alone or in consultation with others as the court may prefer. I can produce a written report and/or summary within a few days of the on-site visit, assuming access to needed materials.
I have also reviewed Federal Rule of Evidence 706 and understand that under that rule I may be deposed by either party, cross-examined, and called by the court to testify.
In conducting the in-person inspection, I propose visiting the medical unit, any unit under quarantine, intake and processing areas, standard living areas and admission or intake units for new admittees; conduct interviews with inmates, correctional officers, and medical staff; and review all pertinent documents and records.
As to my qualifications, I am a trained PhD-level medical sociologist with four years of public health experience. I have conducted public health research with correctional institutions in the state Florida and Colorado. I have also conducted a national survey of health care practices in U.S. jails.
I am extremely familiar with the guidelines on management of COVID-19 in Correctional and Detention Facilities provided by the Centers for Disease Control and Prevention (CDC, https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf).
I co-authored recommendations for COVID-19 mitigation in jails early in the pandemic (https://academic.oup.com/cid/advance-article/doi/10.1093/cid/ciaa346/5812998) and have written more broadly about the need for progressive criminal justice reform in the time of COVID-19 (https://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2020.305707). I am a co-founder and lead investigator on the COVID Prison Project (https://covidprisonproject.com). We have been compiling and analyzing epidemiologic data on COVID-19 from the 50 state departments of correction (DOC), Federal Bureau of Corrections, and Immigration and Customs Enforcement since April 18. We have also tracked changes in state DOC policy related to COVID-19 across 17 domains (e.g., increased sanitation, access to masks for inmates and staff, etc.).
Sincerely,

Kathryn M. Nowotny, PhD

Case 2:20-cv-00901-DJH--DMF Document 18-1 Filed 05/15/20 Page 77 of 95

KATHRYN M. NOWOTNY
Curriculum Vitae University of Miami, Department of Sociology, 5202 University Dr., Room 120D, Coral Gables, FL 33146
E: Kathryn.Nowotny@Miami.edu; P: 305-284-6154 Last Updated April 2020

EDUCATION

PhD Graduate Certificate MA BA

Sociology, Chancellor’s Fellow, University of Colorado Boulder, 2016 Demography, University of Colorado Boulder, 2016 Sociology, University of Houston, 2008 Sociology & Anthropology, Summa cum Laude, University of Houston, 2006

ACADEMIC APPOINTMENTS

2016-

Assistant Professor, University of Miami, Department of Sociology

OTHER PROFESSIONAL APPOINTMENTS

2009-2011 Research Coordinator, University of Houston Center for Drug & Social Policy Research

RESEARCH AREAS

Correctional Health & Healthcare; Health Disparities; Drug Use and Abuse; HIV-Related Syndemics

HONORS

2019 UM College of Arts & Sciences Faculty Scholarly and Creative Activities Award 2018 Junior Scholar Award, Alcohol, Drugs, & Tobacco Section, American Sociological Association 2016 Ralph and Barbara Dakin Award for Research in Social Justice, CU Department of Sociology 2015 National Award of Excellence in Research by a Student, National Hispanic Science Network 2015 Bruce D. Johnson Student Paper Award, SSSP Drinking & Drugs Division 2014 Silver Award, Communicating Complex Ideas: CU Grad Students Share Their Cutting-Edge Research 2014 Outstanding Student Paper Award, ASA Section on Alcohol, Drugs, & Tobacco 2013 New Investigator Outstanding Abstract Award, National Hispanic Science Network 2012 Distinction in Comprehensive Examination in Sociological Research Methods and Statistics

PUBLICATIONS
*graduate student; **undergraduate student; †equal authorship; ^community member
Peer-reviewed manuscripts
Nowotny, K.M., Z. Bailey, M. Omori, L. Brinkley-Rubinstein. (2020). “Novel Coronavirus Exposes Need for Progressive Criminal Justice Reform.” American Journal of Public Health, online first. PMID: 32352850. https://doi.org/10.2105/AJPH.2020.305707.
Wurcel, A.G., E. Dauria, N. Zaller, A. Nijhawan, C. Beckwith, K.M. Nowotny, L. Brinkley-Rubinstein. 2020. Spotlight on Jails: COVID-19 Mitigation Policies Needed Now. Clinical Infectious Diseases, ciaa346.
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PMID: 32221515. https://doi.org/10.1093/cid/ciaa346.
Cepeda, A., K.M. Nowotny, J. Frankeberger*, E. Ramirez^, V. Rodriguez*, T,. Perdue*, A. Valdez. 2020. “Examination of Multilevel Domains of Minority Stress: Implications for Drug Use and Mental and Physical Health among Latina Women who have Sex with Women and Men.” PLoS ONE 15(3): e0230437. PMID: 32214323. https://doi.org/10.1371/journal.pone.0230437.
Nowotny, K.M.†, M. Zielinski†, K. Stringer, T. Pugh, E. Wu, L. Rosen-Metsch, N. El-Bassel, A. Nunn, C.G. Beckwith. 2020. “Editorial: Training the Next Generation of Researchers Dedicated to Improving Health Outcomes for Justice-Involved Populations.” American Journal of Public Health, 110 (S1): S18-S20. PMID: 31967875. doi: 10.2105/AJPH.2019.305411.
Nowotny, K.M., M. Omori, M. McKenna**, J. Kleinman**. 2020. “Incarceration Rates and Incidence of Sexually Transmitted Infections in U.S. Counties (2011-2016).” American Journal of Public Health, 110 (S1): S130-S136. PMID: 31967898. doi: 10.2105/AJPH.2019.305425.
Nowotny, K.M., J. Frankeberger*, A. Cepeda, A. Valdez. 2019. “Trajectories of Heroin Use: a 15-Year Follow-Up Study of Mexican American Men who were Affiliated with Gangs During Adolescence.” Drug & Alcohol Dependence, 204(1): 107505. PMID: 31550612. doi: 10.1016/j.drugalcdep.2019.06.008
Valdez, A., K.M. Nowotny, Q. Zhou,* A. Cepeda. 2019. “Interpersonal Partner Relationships, Bonds to Children, and Informal Social Control among Persistent Male Offenders.” Social Problems, 66 (3): 468–483. PMID: 31354176. doi: 10.1093/socpro/spy018.
Nowotny, K.M., A. Kuptsevych-Timmer*, C. Oser. 2019. “Criminal Justice Contact and Health Service Utilization among Women across Health Care Settings: Analyzing the Role of Arrest.” Women’s Health Issues, 9(2): 125–134. PMID: 30718139. doi: 10.1016/j.whi.2018.12.005.
Peterson, M.*, K.M. Nowotny, E. Dauria, T. Arnold*, L. Brinkley-Rubenstein. 2019. “Institutional Distrust among Gay, Bisexual, and Other Men Who Have Sex with Men as a Barrier to Accessing Pre-Exposure Prophylaxis (PrEP).” AIDS Care: Psychological & Socio-Medical Aspects of AIDS/HIV, 31(3): 364-369. PMID: 30227719. doi: 10.1080/09540121.2018.1524114.
Bacak, V., K.M. Nowotny. 2018. “Race and the Association Between Police Stops and Depression Among Young Adults.” Race & Justice, 1-13. https://doi.org/10.1177/2153368718799813.
Nowotny, K.M. 2018. “A Social Ecological Framework of Inmate Health: Implications for Black-White Health Disparities” in Marino A. Bruce , Darnell F. Hawkins (ed.) Inequality, Crime, and Health Among African American Males (Research in Race and Ethnic Relations, Volume 20) Emerald Publishing Limited, pp.7 – 34. https://doi.org/10.1108/S0195-744920180000020002.
Cepeda, A., K.M. Nowotny, J. Frankeberger*, J. Saint Onge, A. Valdez. 2018. “Biological Risk and Infection Profiles of Young Adult Mexican American Male Gang Members.” Public Health Reports, 133(5): 551-558. PMID: 30067450. doi: 10.1177/0033354918782495.
Nowotny, K.M., J. Frankeberger*, V. Rodriguez*, A. Valdez, A. Cepeda. 2018. “Behavioral, Psychological, Gender, and Health Service Correlates to Herpes Simplex Virus Type 2 Infection among Young Adult Mexican-American Women Living in a Disadvantaged Community.” Behavioral Medicine, 45(1): 52-61. PMID: 29558260. doi: 10.1080/08964289.2018.1447906.
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Nowotny, K.M., A. Kuptsevych-Timmer*. 2018. “Health & Justice: Framing Incarceration as a Social Determinant of Health for Black Men in the United States.” Sociology Compass, e12566: 1-15. doi: 10.1111/soc4.12566.
Nowotny, K.M., A. Cepeda, T. Perdue*, N. Negi, A. Valdez. 2017. “Risk Environments and Substance Use among Mexican Female Sex Work on the U.S.-Mexico Border.” Journal of Drug Issues, 47(4): 528-542. doi: 10.1177/0022042616678609.
Nowotny, K.M., T. Purdue*, A. Cepeda, A. Valdez. 2017. “Mental Health of Heroin Users with Differing Injection Drug Use Histories: A Non-Treatment Sample of Mexican American Young Adult Men.” Drug & Alcohol Dependence, 181(1): 124-131. PMID: 29054031. doi: 10.1016/j.drugalcdep.2017.08.041.
Nowotny, K.M., R.G. Rogers, J.D. Boardman. 2017. “Racial Disparities in Health Conditions among Prison Inmates Compared with the General Population.” Social Science & Medicine - Population Health, 3: 487496. PMID: 28824953. doi: 10.1016/j.ssmph.2017.05.011.
Nowotny, K.M. 2017. “Health Care Needs and Service Use among Male Prison Inmates in the United States.” Health & Justice, 5: 9. PMID: 28597357. doi: 10.1186/s40352-017-0052-3.
Cepeda, A., J.L. Baily*, J. Frankeberger*, K.M. Nowotny, G. Natera-Rey, A. Valdez. 2017. “HIV and STI Knowledge, Testing, and Risk among Adult Crack Users in Mexico City: Baseline Findings from a Feasibility Study.” AIDS Care: Psychological & Socio-Medical Aspects of AIDS/HIV, 29(3): 350-354. PMID: 27832703. doi: 10.1080/09540121.2016.1255707.
Cepeda, A., K.M. Nowotny, J. Frankeberger*, A. Valdez. 2016. “Precocious Transitions and Long-Term Heroin Use Outcomes: A Longitudinal Study of Gang-Affiliated Mexican-American Males.” Addictive Behaviors, 60: 48-52. PMID: 27092995. doi: 10.1016/j.addbeh.2016.03.023.
Nowotny, K.M., R.K. Masters, J.D. Boardman. 2016. “The Relationship between Education and Health among Incarcerated Men and Women in the United States.” BMC Public Health, 16(1): 916. PMID: 27586136. doi: 10.1186/s12889-016-3555-2.
Valdez, A., K.M. Nowotny, N. Negi, E. Zafra Mora^, A. Cepeda. 2016. “Un Jalón, Un Volteón y Otra Vez: High Risk Crack Smoking Paraphernalia in Mexico City.” Journal of Psychoactive Drugs, 48(4): 295-302. PMID: 27356211. doi: 10.1080/02791072.2016.1198510.
Nowotny, K.M. 2016. “Social Factors Related to the Utilization of Healthcare among Prison Inmates.” Journal of Correctional Health Care, 22: 129-138. PMID: 26984136. doi: 10.1177/1078345816633701.
Cepeda, A., A. Valdez, K.M. Nowotny. 2016. “Childhood Trauma among Mexican-American Gang Members and Delinquent Youth: A Comparative Study.” Child Abuse Review, 25: 205–217. doi: 10.1002/car.2340.
Nowotny, K.M., A. Cepeda, L. James-Hawkins*, J.D. Boardman. 2016. “Growing Old Behind Bars: Health Profiles of the Older Male Inmate Population in the United States.” Journal of Aging & Health, 28(6): 935-56. PMID: 26553724. doi: 10.1177/0898264315614007.
 Media: University of Colorado Press Release  Media: Colorado Public Radio Interview
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Cepeda, A., K.M. Nowotny, A. Valdez. 2016. “Trajectories of Long-Term Mexican-American Heroin Injectors: The “Maturing Out” Paradox.” Journal of Aging and Health, 28(1):19-39. PMID: 25953814. doi: 10.1177/0898264315585503.
Cepeda, A., J.M. Saint Onge, K.M. Nowotny, A. Valdez. 2016. “Associations between Long-term Gang Membership and Informal Social Control Processes, Drug Use and Delinquent Behavior among MexicanAmerican Youth.” International Journal Offender Therapy & Comparative Criminology, 60(13): 1532-48. PMID: 25979430. doi: 10.1177/0306624X15584985.
Cepeda, A., K.M. Nowotny, A. Valdez. 2015. “Injecting Drug Use among Mexican Female Sex Workers on the U.S.-Mexico Border.” Journal of Ethnicity in Substance Use, 14(4): 351-363. PMID: 26211392. doi: 10.1080/15332640.2014.991467.
Valdez, A., C.D. Kaplan, K.M. Nowotny, G. Natera-Rey, A. Cepeda. 2015. “Emerging Patterns of Crack Use in Mexico City.” International Journal of Drug Policy, 26(8):739–745. PMID: 26003928. doi: 10.1016/j.drugpo.2015.04.010.
Nowotny, K.M., R. Peterson*, J.D. Boardman. 2015. “Gendered Contexts: Variation in Suicidal Ideation by Female and Male Youth across U.S. States.” Journal of Health & Social Behavior, 56(1): 114-130. PMID: 25722128. doi: 10.1177/0022146514568350.
Nowotny, K.M. 2015. “Race/Ethnic Disparities in the Utilization of Treatment by Drug Dependent Inmates in State Correctional Facilities.” Addictive Behaviors, 40:148–153. PMID: 25270722. doi: 10.1016/j.addbeh.2014.09.005.
 2014 Outstanding Student Paper Award, ASA Section on Alcohol, Drugs, & Tobacco  Media: Who Does, and Who Doesn’t, Get Drug Treatment in Prison
Cepeda, A., K.M. Nowotny. 2014. “A Border Context of Violence: Mexican Female Sex Workers on the U.S.-Mexico Border.” Violence Against Women, 20(12): 1506-1531. PMID: 25409891. doi: 10.1177/1077801214557955.
Nowotny, K.M., J. Belknap, S. Lynch, D. DeHart. 2014. “Risk Profiles and Treatment Needs of Women in Jail with Co-occurring Serious Mental Illness and Substance Use Disorders.” Women & Health, 58(8): 781795. PMID: 25204664. doi: 10.1080/03630242.2014.932892.
Daw, J., K.M. Nowotny, J.D. Boardman. 2013. “Changing Patterns of Tobacco and Alcohol Co-use by Gender in the United States, 1976-2010.” Demographic Research, 28(22): 637-648. PMID: 25493070. doi: 10.4054/demres.2013.28.22.
Nowotny, K.M., J.L. Graves*. 2013. “Substance Use and Intimate Partner Violence among White, African American, and Latina Women.” Journal of Interpersonal Violence, 28(17): 3310-3318. PMID: 23946141. doi: 10.1177/0886260513496903.
Nowotny, K.M., J.L. Fackler (Graves)*, G. Muschi*, C. Vargas*, L. Wilson*, J.A. Kotarba. 2010. “Established Latino Music Scenes: Sense of Place and the Challenge of Authenticity.” Studies in Symbolic Interaction, 35: 29-50. doi: 10.1108/S0163-2396(2010)0000035006.
Kotarba, J.A., J.L. Fackler (Graves)*, and K.M. Nowotny. 2009. “An Ethnography of Latino Music Scenes.” Symbolic Interaction, 32(4): 310-333. doi: 10.1525/si.2009.32.4.310.
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Manuscripts under review
Kuptsevych-Timmer, A.*, K.M. Nowotny. “Mental Illness and Mental Health Care Treatment among Persons with Criminal Justice Involvement in the United States.” Journal of Health Care for the Poor and Underserved. (Conditional Acceptance)
Cowell, M.*, K.M. Nowotny, E. Dauria, L. Brinkley-Rubenstein. “Use of Pre-Exposure Prophylaxis Therapy (PrEP) for HIV/AIDS Prevention in U.S. Prisons: A Survey of State Medical Directors.” AIDS Care. (Under 1st Review)
Nowotny, K.M., L. Brinkley-Rubenstein, M. Omori, K. Seide*, C.G. Beckwith. “Medications for Opioid Use Disorder in US Jails: A Cross-Sectional National Survey.” JAMA Psychiatry. (Under 1st Review)
Wurcel, A., G. Chen*, J. Zubiago*, J. Reyes*, K.M. Nowotny. “Heterogeneity in Jail Nursing Medical Intake Forms: A Content Analysis Focusing on Viral Hepatitis, HIV, and Substance Use Disorder.” Journal of Correctional Health Care. (Under 1st Review)
Manuscripts in progress
McCaully, E.*, K.M. Nowotny, A. Wurcel, L. Brinkley-Rubinstein. “COVID-19 Testing and Case Rates in Prisons compared to the Community.” In preparation for New England Journal of Medicine.
Novitsky, M.A., K.M. Nowotny, D.B. Jackson, A. Testa, M.G. Vaughn. “Incarceration as a Fundamental Social Cause of Health Inequalities: The Case of COVID-19.” In preparation for Journal of Health and Social Behavior.
Nowotny, K.M., M. Omori, Z. Bailey, L. Brinkley-Rubenstein, C.G. Beckwith. “The Health Care Capacity of Jails: What does this mean in the context of COVID-19?” In preparation for Health Affairs.
Nowotny, K.M., K. Seide*, M. McKenna**, M. Omori, M. Stern. Medical Staffing and Medical Care in U.S. Jails compared to Prisons: Results from a National Survey.” In preparation for Health & Justice.
Nowotny, K.M., S. Steel**, M. Omori, L. Brinkley-Rubenstein, C.G. Beckwith. “HIV Screening Practices during Medical Intake in U.S. Jails.” In preparation for JAIDS.
Nowotny, K.M., M. Omori, L. Brinkley-Rubenstein, C.G. Beckwith. “The Health Care Challenges for Rural Jails.” In preparation for Journal of Correctional Health Care.
Nowotny, K.M., K. Seide*, F. Casanova*. “Are Adults with Recent Criminal Justice Contact Under or Over Utilizers of Medical Services?: Examining Outpatient Care and Emergency Department Use.” In preparation for Journal of Health and Social Behavior.
Nowotny, K.M., V. Bacak. “Health Service Outcomes among Formerly Incarcerated Young Adults: Implications for Race/Ethnic Health Disparities.” In preparation for Journal of Health and Social Behavior.
Cepeda, A., K.M. Nowotny, J. Frankeberger*, E. Ramirez^, A. Valdez. “Cumulative Trauma Exposure across the Life Course of Mexican American Women Living in a Disadvantaged Social Context.” In preparation for Journal of Interpersonal Violence.
Cepeda, A., K.M. Nowotny, J. Frankeberger*, E. Zafra Mora^, V.H. Carapia Jimenez^, G. Natera-Rey, A.
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Valdez. “Implementation of a Projection Mapping “Behavioral Nudge” Intervention for Crack Users in Mexico City: Tirando Esquina - Interviniendo Muros de Salud (TE:IMS).” In preparation for AIDS and Behavior.
Nowotny, K.M., S.P. Thomas*, M. McKenna**, L. James-Hawkins. “Reproductive Justice Behind Bars: A Systematic Review of Birth and Pregnancy Outcomes for Women Incarcerated During Pregnancy in the United States.” In preparation for Perspectives on Sexual and Reproductive Health.
Non-peer-reviewed book chapters
Rodriguez, V.E.*, E. Ramirez^, J. Frankeberger*, K.M. Nowotny, A. Cepeda. (in press). “Reasons for Not Reporting Partner Abuse to Law Enforcement: A Qualitative Study with Vulnerable Mexican-American Young Adult Women.” In preparation for Violando La Ley: Latinas in the Justice System edited by Vera Lopez and Lisa Pasko, NYU Press.
Nowotny, K.M., Q. Zhao*, C.D. Kaplan, A. Cepeda, A. Valdez. 2016. “Gender Dynamics of Violent Acts among Young Adult Mexican-American Men with a History of Gang Membership” Pages 159-173 in Global Perspectives on Youth Gang Behavior, Violence, and Weapons Use, edited by Marek Palasinski. Hershey, PA: IGI Global.
Nowotny, K.M., J. Frankeberger*, A. Cepeda. 2015. “Research on Drugs and Social Characteristics” Pages 320-334 in Handbook on Drugs and Society, edited by Henry H. Brownstein. Hoboken, NJ: Wiley Blackwell.
Nowotny, K.M., J.L. Graves*, G. Muschi*, C. Vargas*, L. Wilson*, J.A. Kotarba. 2013. “Established Latino Music Scenes: Sense of Place and the Challenge of Authenticity.” Pages 70-80 in Music Sociology: The Role of Music in Social Life, edited by Sara Towe Horsfall, Jan-Martijn Meij, and Meghan Probstfield. Boulder, CO: Paradigm Press. [Reprint]
Cepeda, A., N. Negi, K.M. Nowotny, J. Arango**, C.D. Kaplan, A. Valdez. 2012. “Social Stressors, Special Vulnerabilities and Violence Victimization among Immigrant Day Laborers in Post Katrina New Orleans.” Pages 207-231 in Punishing Immigrants: Policy, Politics, and Injustice, edited by Charis E. Kubrin, Majorie S. Zatz, and Ramiro Martinez, Jr. New York, NY: NYU Press.
Valdez, A., K.M. Nowotny, A. Cepeda. 2012. “Intersections of Drug Use and Crime over the Life Course of Mexican American Former Gang Members.” Pages 71-79 in Drugs and the American Dream, edited by Patricia Adler, Peter Adler, and Patrick O’Brien. Hoboken, NJ: Wiley.
Other non-peer-reviewed publications
“National Health Care in U.S. Jails.” Kathryn M. Nowotny, Melanie McKenna**, Marisa Omori, Lauren Brinkley-Rubinstein, and Curt Beckwith. Report in progress for the American Jail Association.
“The State of Higher Education in Florida Prisons Compared to Other Southern States.” Windy Hinshaw†, Kathie Klarrich†^, Danae Lalley†**, Kerra Masso†**, Sofia Mohammad†**, Kathryn M. Nowotny†, and Katrina Riveron†**. Report for Exchange for Change, 2020.
“Fatal and Nonfatal Opioid Overdose among Hispanics in California.” Avelardo Valdez, Kathryn M. Nowotny, Kyle Nowotny*, Jessica Frankeberger*, Tasha Purdue*, and Alice Cepeda. Report for Drug Policy Alliance, 2020.
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“Cultivating Effective Mentoring Relationships.” Alice Cepeda and Kathryn M. Nowotny. El Faro Newsletter, National Hispanic Science Network on Drug Abuse, Volume 11, Issue 1, 2014.
“A Celebration of Nine Years: Program Evaluation Report for Boulder Youth Body Alliance Peer Education Program.” Carmen Cool^, Maggie Miller^, Laurie James-Hawkins, Kathryn M. Nowotny, and Jessica Levin**. Report for Boulder Youth Body Alliance, 2013.
“Substance Use and Other Health Consequences among Hurricane Katrina Evacuees in Houston,” Avelardo Valdez, Alice Cepeda, Alexandra Canga**, Kathryn M. Nowotny, and Jarron M. Saint Onge. Report for Center for Drug & Social Policy Research, 2009.
“Houston Area Women’s Center: Quality of Service and Needs Assessment Survey.” Report for Houston Area Women’s Center [Master’s Thesis Project], 2008.
EXTERNAL RESEARCH GRANTS AND FELLOWSHIPS

Active

P30MH116867 (University of Miami)

6/2020 - 5/2021

$40,000

National Institute of Mental Health/Center for HIV and Research in Mental Health (CHARM)

Pilot Principal Investigator (11% effort)

The Syndemic of Criminal Justice Involvement, Mental Illness, Substance Use, and Interpersonal

Violence among Marginalized Adults Living with HIV

We are conducting qualitative life history interviews with 30 justice-involved adults living with HIV to

examine the syndemic pathways to suboptimal care.

U2CDA050097 (George Mason University)

4/2020 - 3/2022

National Institute on Drug Abuse/ Justice Community Opioid Intervention Network (JCOIN)

Coordinating and Translational Center

Fellow (Investigator Track), Project Principal Investigator

Release from Prison and Death from Fatal Opioid Overdose, Nonfatal Opioid Overdose, and Acute

Hospitalization Related to Opioids

The goal of this JCOIN program is to grow the capacity and diversity of high impact research related to

opioids and criminal justice systems. My project is a retrospective cohort study using linked administrative,

medical, and vital records to assess how demographic factors, incarceration history, health conditions, and

medical encounters following release from prison are associated with death from opioid overdose, nonfatal

opioid overdose, and acute hospitalizations related to opioid use. [start date delayed due to COVID-19

pandemic]

U54MD002266 (University of Miami/ Florida International University)

12/2019 - 11/2020

$50,000

National Institute on Minority Health and Health Disparities/ Center for Latino Health Research

Opportunities

Pilot Principal Investigator (18.5% effort)

Minority Stress and Sexual Identity across the Life Course of Mexican-American Women Who

Have Sex with Women and Men

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We are conducting an exploratory qualitative study to describe, in-depth, the health risk (discrimination, stressful life events) and protective (social support) factors for high-risk substance use among WSWM from the perspective of socioeconomically disadvantaged Latinas, and how these factors are influenced by their multiple minority identity statuses.

R01MD013628 (University of Southern California)

4/2019 - 12/2023

$2,900,000

National Institute on Minority Health and Health Disparities

Co-Investigator (10% effort)

Disparities in Health among Floating Immigrant Populations

We are recruiting a sample of 600 that will include two subgroups of substance using floating populations

representing “recent” immigrants that have arrived to Los Angeles and a group of immigrants who have

returned to Mexico City either voluntarily or forced to examine how immigrants are exposed to health risks.

R01MD013573 (University of North Carolina)

9/2018 - 8/2023

$2,700,000

National Institute on Minority Health and Health Disparities

Site Principal Investigator and Co-Investigator (23% effort)

The Southern Pre-Exposure Prophylaxis Cohort Study: Longitudinal PrEP Initiation and

Adherence among Parolees (SPECS)

We are conducting a observational multi-site longitudinal cohort study to characterize knowledge and

acceptability of PrEP and to identify the multi-level factors that predict PrEP initiation and sustained use

among persons recently released from prison and under post-release community supervision (parole). We

will recruit cohorts of 660 adults in North Carolina, Florida, and Kentucky.

Completed

R01DA03926 (University of Southern California)

7/2015 - 5/2020

$2,900,000

National Institute on Drug Abuse

Consultant

Health Consequences of Drug Use and IPV Trajectories for Young Latinas

The purpose of this study was to identify and determine how distinct drug use and intimate partner violence

victimization trajectories that emerge in adolescence through young adulthood contribute to physical and

mental health outcomes among Mexican American women within the context of a highly disadvantaged

community.

P30AI073961 (University of Miami)

9/2018 - 8/2019

$50,000

National Institutes of Health/ Miami Center for AIDS Research

Pilot Principal Investigator (10% effort)

National Survey of Health Care in U.S. Jails

The goal was to expand the data collection on health care in U.S. county jails including administrative

surveys, assessment of infectious disease screening during clinical intake, and qualitative case studies of

selected counties. The overall goals are to document admissions testing for HIV and other health

conditions, discharge referrals to HIV/AIDS care, and routine provision of medical, mental, and substance

abuse care.

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R25 DA037190 (Brown University)

5/2018 - 4/2019

$15,000

National Institute of Drug Abuse/ Criminal Justice Research Training (CJRT) Program

Pilot Principal Investigator (5% effort)

The National Jail Health Care Survey

The goal was to provide novel administrative data on health care in U.S. county jails including admissions

testing for HIV and other health conditions, discharge referrals to HIV/AIDS care, and routine provision

of medical, mental, and substance abuse care.

R25DA037190 (Brown University)

10/2016 - 9/2018

National Institute of Drug Abuse

Early Career Fellow

The Lifespan/Brown Criminal Justice Research Training (CJRT) Program on Substance Use,

HIV, and Comorbidities

The goal of this two-year training program was to increase the number and capacity of clinical scientists

working with justice-involved populations.

NSF #1401061 (University of Colorado Boulder)

7/2014 - 12/2015

$11,994

National Science Foundation

Co-Principal Investigator

Doctoral Dissertation Research: Applying a Social Ecological Framework to Inmate Health

The goal of this project was to develop a conceptual framework for understanding inmate health and the

influence of mass incarceration on population race/ethnic health disparities, and then to examine health

inequalities for incarcerated adults.

F31DA037645 (University of Colorado Boulder)

6/2014 - 8/2016

$105,238

National Institute on Drug Abuse

Principal Investigator

Examining Health Disparities: The Health and Healthcare of Incarcerated Adults

The goal of this Ruth L. Kirschstein National Research Service Award Fellowship project was to examine

disparities in morbidity and health service utilization for adults incarcerated in prison.

R25DA026401 (University of Southern California)

6/2012 - 5/2014

National Institute on Drug Abuse

Early Career Fellow

Interdisciplinary Research Training Institute on Hispanic Drug Abuse

The Interdisciplinary Research Training Institute (IRTI) promotes the career development of pre-doctoral,

post-doctoral and early career scientists interested in conducting research on drug abuse among Hispanics

R01DA023857 (University of Houston)

9/2008 - 8/2013

$2,400,000

National Institute on Drug Abuse

Project Director (100% effort)

At Risk Hispanic Gangs: Long-Term Consequences for HIV, Hepatitis, and STI

This study examined among former Mexican American gang members the associations between adolescent,

early young adulthood and young adult-specific risk factors and the outcomes of infection with HIV,

hepatitis B and C, sexually transmitted infections, and related infection risks.

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Pending

P30CA240139 Supplement (University of Miami)

Submitted 4/2020

$150,000

National Cancer Institute/ Sylvester Cancer Center

Co-Investigator (9% effort)

The Role of Incarceration in the Development of Lung Cancer and HIV among People Living with

HIV

We propose to examine the progression of lung cancer and HIV among adults living with HIV, and how

incarceration contributes to this progression, accounting for other syndemic factors, using the MACS/

WIHS cohort, the largest ongoing cohort of people living with HIV and people at risk for HIV.

U01 Proposal (University of North Carolina [prime])

Submitted 4/2020

$8,750,000

National Institute on Drug Abuse

Multi-Principal Investigator (20% effort)

Opioid Use and HIV Prevention for Justice Affected Individuals (OHPAL)

In response to RFA-DA-20-028, we propose to conduct a type-1 hybrid implementation effectiveness trial

in four performance sites in Durham, NC, Miami, FL, Brooklyn, NY, and New Haven, CT. Following

completion of an implementation study to improve linkage to the continuum of evidence-based care for

OUD and PrEP, 800 people reentering the community from correctional confinement will be recruited and

randomly assigned to one of three treatment conditions: (1) Transitions Clinic Network (TCN) and (2)

Mobile Health Services (MHS) versus (3) Treatment as Usual (TAU) with follow-ups at 3-, 6-, and 12-

months.

Loan Repayment Grant

Submitted 11/2019

National Institute on Minority Health and Health Disparities

Principal Investigator

Barriers and Facilitators to Implementation of PrEP for HIV in Correctional Settings

I propose to conduct a mixed methods study to examine the institutional barriers and facilitators for PrEP

implementation in correctional settings as well as PrEP acceptability among people with recent criminal

justice experience.

INTERNAL RESEARCH GRANT/FELLOWSHIP/SCHOLARSHIP AWARDS

University of Miami Research Grants

$15,000

4/2020 - 3/2021

College of Arts & Sciences

Principal Investigator (uncompensated effort)

COVID-19 Community Corrections Project

The goals of this study are to assess the effect of the COVID-19 pandemic on the health and wellbeing of

adults under community supervision, and assess the institutional response to COVID-19 within community

corrections.

PRA2021-1871 $17,000 Provost Research Award

6/2020 - 5/2021
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Principal Investigator (10% effort) Community Needs and Resource Assessment for the Establishment of the Miami Transitions Clinic The objective of this study is to identify the primary health needs and existing service gaps in reentry, and document, map, and assess community assets that can be mobilized to support the Miami Transitions Clinic based on the Transitions Clinic Network model.

PRA2018

6/2017 - 5/2018

$17,000

Provost Research Award

Principal Investigator (10% effort)

Use of Health Services Following Release from Prison: A Longitudinal Examination of Women

The objective of this study is to examine the use of health services for African American women following

release from prison and the health enabling factors, including social networks, that hinder or facilitate use of

these services.

University of Miami Teaching/Pedagogy Grants & Fellowships

2019 College of Arts & Sciences Pedagogy Workshop, “Teaching for Change: Creating a Curriculum for Social Justice,” $2,000 [canceled due to COVID-19 pandemic]
2019 SEEDS “You Choose” Leadership Award in support of research forum and networking event: “Navigating Fieldwork: Intersectional Identities and Personal Safety”, $2,380
2019 Faculty Advisor for Beyond the Book Grant awarded to Joshua Kleinman, $5,000 2018 Faculty Summer Writing Institute, College of Arts and Sciences 2017 Faculty Learning Community Fellowship, “Flipped and Active Learning”

INVITED PARTICIPATION
“2nd Annual Jail Research Network Meeting.” Sponsored by the Bureau of Justice Statistics (BJS), National Institute of Corrections (NIC), and Crime and Justice Institute (CJI). National Corrections Academy, Aurora, CO April 25 – 26, 2017.
“Jails Research Network Meeting: Technical Review Panel for the Survey of Inmates in Local Jails.” Sponsored by the Bureau of Justice Statistics (BJS), National Institute of Corrections (NIC), and Crime and Justice Institute (CJI). National Corrections Academy, Aurora, CO June 6 – 7, 2016.

COURSES TAUGHT
University of Colorado Boulder (ratings out of 6.0)
Undergraduate Crime & Society (Spring 2014) – Overall Average Student Rating: 5.5
University of Miami (ratings out of 5.0)
Undergraduate Health & Justice (Fall 2016; 2017) – Overall Average Student Rating: 4.8

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Health Disparities-Writing Credit∫ (Spring 2017; 2018; 2019) – Overall Average Student Rating: 4.8 Medical Sociology (Fall 2017; 2018; 2019) – Overall Average Student Rating: 4.7
Graduate Medical Sociology (Fall 2018#; 2020) Gender Based Violence (Spring 2020)
∫Writing intensive course #No course evaluations due to small class size.
PROFESSIONAL MEMBERSHIPS
Academic Consortium on Criminal Justice Health American Society of Criminology (ASC) – Divisions of Women & Crime and People of Color & Crime American Sociological Association (ASA) – Alcohol, Drugs, & Tobacco Section National Hispanic Science Network on Drug Abuse (NHSN) [nominated membership] Society for the Study of Social Problems (SSSP) – Drinking & Drugs Division
SELECTED CONFERENCE PRESENTATIONS
2020 Omori, M. K.M. Nowotny, A. Boessen. “The Local Context of the Shifting Welfare State.” Vera Institute of Justice Research Symposium, April 16-17, New York, NY. [Cancelled due to COVID-19 pandemic]
K.M. Nowotny. “Climate Change and Corrections: Extreme Heat in Florida Prisons.” Academic and Health Policy Conference on Correctional Health, April 2-3, Raleigh, NC. [Cancelled due to COVID-19 pandemic]
2019 Nowotny, K.M., M. Omori, L. Brinkley-Rubenstein. “Use of Medication for Opioid Use Disorder in US Jails: Results from a National Survey.” American Society of Criminology (ASC), November 13-16, San Francisco, CA.
Kuptsevych-Timmer*, A., K.M. Nowotny. “Mental Illness and Mental Health Care Treatment among Persons with Criminal Justice Involvement in the United States.” Society for the Study of Social Problems (SSSP), August 9-11, New York, NY.
Nowotny, K.M., K. Seide*, C. Hough*, M. Omori. “The National Survey of Health Care in U.S. Jails: An Overview of ‘JailCare’.” Society for the Study of Social Problems (SSSP), August 9-11, New York, NY.
Kleinman**, J., S. Steel**, K.M. Nowotny. “Infectious Disease Screening in Jails: Results from the National Survey of Health Care in U.S. Jails.” Academic and Health Policy Conference on Correctional Health, March 21-22, Las Vegas, NV.
Nowotny, K.M. “The National Survey of Health Care in U.S. Jails: Overview of Findings.” Academic and Health Policy Conference on Correctional Health, March 21-22, Las Vegas, NV.
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2018 Nowotny, K.M., M. Omori. “Who is Providing Health Care to Jail Inmates?: Examining Demographic, Health, and Criminal Justice Correlates to Medical Staffing across U.S. County Jails.” Vera Institute of Justice Research Symposium, October 25-26, New York, NY.
Nowotny, K.M., J. Frankeberger*, A. Cepeda, A. Valdez. “Trajectories of Heroin Use: Longitudinal Models Based on a 15-Year Follow-up Study of Mexican American Men.” National Hispanic Science Network, October 3-5, Rockville, MD.
Cepeda, A. K.M. Nowotny, J. Frankeberger*, E. Ramirez^, V. Rodriguez*, A. Valdez. “Drug Use, Incarceration, and Health Indicators of Latina Women who have Sex with Women and Men.” American Sociological Association, August 11-14, Philadelphia, PA.
Nowotny, K.M., K. Seide*, F. Casanova*. “Are Adults with Recent Criminal Justice Contact Under or Over Utilizers of Medical Services?: Examining Emergency Department Use.” Society for the Study of Social Problems, August 10-12, Philadelphia, PA.
Thomas*, S.P., M. McKenna**, K.M. Nowotny. “Reproductive Justice Behind Bars: A Systematic Review of Birth and Pregnancy Outcomes for Women Incarcerated During Pregnancy in the United States.” Academic and Health Policy Conference on Correctional Health, March 22-23, Houston, TX.
2017 Nowotny, K.M., O. Johnson*, K. Pericak*. “Criminal Justice Contact and Exposure to Incarceration: An Examination of Depression among Young Adults” American Society of Criminology (ASC), November 15-18, Philadelphia, PA.
Pericak*, K., K.M. Nowotny. “High School Sport Participation and Depression in Young Adulthood” Society for the Study of Social Problems (SSSP), August 11-13, Montreal, QB.
Nowotny, K.M. “Inequalities in Health Service Use among Former Inmates” Population Association of America (PAA), April 27-29, Chicago, IL.
2016 Nowotny, K.M. “Inequalities in Use of Medical Services for Formerly Incarcerated Young Adult Men and Women” Society for the Study of Social Problems (SSSP), August 19-21, Seattle, WA, and American Society of Criminology (ASC), November 16-19, New Orleans, LA.
Nowotny, K.M., J.D. Boardman, R.G. Rogers. “Racial Disparities in Health Conditions among Prison Inmates Compared with the General Population.” Population Association of America (PAA), March 31 – April 2, Washington DC.
Nowotny, K.M. “The Impact of Imprisonment on Mental Health: A Propensity Score Approach.” Academic and Health Policy Conference on Correctional Health, March 17-18, Baltimore, MD.
2015 Valdez, A., A. Cepeda, K.M. Nowotny. “Longitudinal Outreach Strategies in the Relocation and Street Recruitment of Latino Young Adults with Histories of Adolescent Gang Membership and Drug Use.” International Conference on Outreach Work: Youth Gangs, Violence and Female Delinquency, December 3-5, Hong Kong [international].
Nowotny, K.M., “The Complex Healthcare Needs of Elderly Male Inmates.” American Society of Criminology (ASC), November 19-22, Washington DC.
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Nowotny, K.M., J.D. Boardman, R.G. Rogers. “Racial Disparities in Health Conditions among Prison Inmates Compared with the General Population.” Southern Demographic Association (SDA), October 14-16, San Antonio, TX.
Nowotny, K.M., “Variations in Drug and Alcohol Treatment Utilization across Men's Prisons.” Society for the Study of Social Problems (SSSP), August 21-23, Chicago, IL.
Nowotny, K.M., A. Cepeda, A. Valdez, “Mental Health and Drug Abuse Profiles of Latino Inmates: Ethnicity, Nativity, and Treatment History.” National Hispanic Science Network (NHSN), June 24-26, San Antonio, TX.
Nowotny, K.M., A. Cepeda, L. James-Hawkins, J.D. Boardman, “Growing Old Behind Bars: The Health Profile and Healthcare Needs of Older Men.” Population Association of America (PAA), April 30-May 2, San Diego, CA.
Nowotny, K.M., R.K. Masters, J.D. Boardman, “The Relationship between Education and Health among Incarcerated Men and Women in the United States.” Southwest Social Science Association (SSSA), April 8-11, Denver, CO.
Nowotny, K.M., “Aging in Prions and Multimorbidity of Chronic Health Conditions.” Academic and Health Policy Conference on Correctional Health, March 19-20, Boston, MA.
2014 Nowotny, K.M., “Disparities in the Utilization of Healthcare among Inmates in State Correctional Facilities.” American Society of Criminology (ASC), November 19-22, San Francisco, CA.
Nowotny, K.M., A. Cepeda, “Health Profile and Healthcare Needs of Elderly Hispanic Male Inmates” and Negi, N., K.M. Nowotny, “High Risk Drug and Sexual Behavior Patterns among Crack Using Women in Mexico City.” National Hispanic Science Network (NHSN), September 3-6, El Paso, TX.
Nowotny, K.M., “Race/Ethnic Disparities in the Utilization of Treatment for Drug Dependent Inmates in U.S. State Correctional Facilities.” American Sociological Association (ASA), August 1619, San Francisco, CA.
Nowotny, K.M., J.D. Boardman, “Gender Differences in the Influence of Child Sexual Abuse on Drug Use and Related Health Risks during Young Adulthood: The Moderating Effects of DRD4.” The College on Problems of Drug Dependence (CPDD), June 14-19, San Juan, Puerto Rico.
Nowotny, K.M., R. Peterson*, J.D. Boardman, “Gendered Contexts: Examining the Variation of Suicide Ideation for Adolescent Girls and Boys across States.” Population Association of America (PAA), May 1-3, Boston, MA.
2013 Nowotny, K.M., A. Cepeda, A. Valdez, “Crime and Drug Use among Mexican-American Adult Men: The Influence of Partnership, Parenthood, Employment, and Gang Membership.” American Society of Criminology (ASC), November 20-23, Atlanta, GA.
Nowotny, K.M., “Hispanic-White Disparities in the Utilization of Treatment among Drug Dependent Inmates.” National Hispanic Science Network (NHSN), October 9-11, Bethesda, MD.
Nowotny, K.M., J. Belknap, S. Lynch, D. DeHart, “Risk Profile and Service Needs of Women in
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Jail with Co-Occurring Serious Mental Illness and Substance Use Disorders.” Society for the Study of Social Problems (SSSP), August 9-11, New York, NY.
Nowotny, K.M., A. Cepeda, A. Valdez, “Drug Dependence among Hurricane Katrina Evacuees: Before, During, and Post-Disaster Risk Factors.” Southwest Social Science Association (SSSA), March 27-30, New Orleans, LA.
2012 Nowotny, K.M., J. Belknap, S. Lynch, D. DeHart, B. Green, “Racial Differences in the Exposure to Violent Events and Drug Use among Incarcerated Women.” American Society of Criminology (ASC), November 14-17, Chicago, IL.
Nowotny, K.M., A. Cepeda, A. Valdez, “Adult Social Bonds, Crime, and Drug Use among Mexican American Gang Members.” National Hispanic Science Network (NHSN) on Drug Abuse, September 26-29, San Diego, CA.
Nowotny, K.M., “Gender Differences in Perceived Discrimination and Substance Use among Hispanics.” American Sociological Association (ASA), August 17-20, Denver, CO.
Nowotny, K.M., J.L. Graves*, “Racial Differences in the Bidirectional Relationship between Intimate Partner Violence and Substance Use among Women.” Society for the Study of Social Problems (SSSP), August 16-18, Denver, CO.
2011 Nowotny, K.M., A. Cepeda, “A Border Milieu of Violence: Mexican Female Sex Workers on the U.S.-Mexico Border.” American Society of Criminology (ASC), November 16-19, Washington DC.
Nowotny, K.M., A. Valdez, A. Cepeda, “Drug Use Health Consequences for Mexican American Former Gang Members.” American Sociological Association (ASA), August 21-23, Las Vegas, NV.
Nowotny, K.M., A. Valdez, A. Cepeda, “’I’m always mad and always ready to Fight’: Mexican American Former Gang Members’ Experiences of Violence.” Southwestern Social Science Association (SSSA), March 16-19, Las Vegas, NV.
2010 Cepeda, A. Kathryn M. Nowotny, A. Valdez, “The Influence of Social Networks on the Drug Careers of Aging Mexican American Heroin Users.” International Conference on Urban Health, October 27-29, New York, NY.
Nowotny, K.M., A. Valdez A. Cepeda, “Health Consequences among Aging Mexican American Heroin Users: An Ethnographic Analysis.” American Sociological Association (ASA), August 14-17, Atlanta, GA.
Valdez, A., K.M. Nowotny, “Trajectories of Substance Use and Crime over the Life Course: A 13 year follow-up of Mexican American Gang Members.” Society for the Study of Social Problems (SSSP), August 13-15, Atlanta, GA.
Nowotny, K.M., A. Cepeda, A. Valdez, “Black on Brown Violence: Victimization of Latino Immigrant Day Laborers in Post-Katrina New Orleans.” Southwestern Social Science Association (SSSA), March 31-April 3, Houston, TX.
2009 Cepeda, A. K.M. Nowotny, A. Valdez, “NIU Transition Risks to IDU.” American Sociological Association (ASA), August 8-11, San Francisco, CA.
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2008 Nowotny, K.M., J.L. Fackler (Graves), L. Wilson*, “Emerging Latino Music Scenes in Houston: An Ethnographic Analysis.” Southwestern Social Science Association (SSSA), March 12-15, Las Vegas, NV. *co-presenters

INVITED SPEAKER
University of Miami Gender and Sexuality Studies Colloquium, April 17, 2020: “Framing Mass Incarceration as a Social Determinant of Health.” [held remotely due to COVID-19 pandemic]
Miami CFAR Rapid Fire Seminar Series, August 13, 9019: “Screening for HIV and Other Infectious Diseases: Findings from the National Survey of Health Care in U.S. Jails.”
University of Southern California Interdisciplinary Research Training Institute, June 8, 2019: “NIH F31 Grant Submission: Lessons Learned.”
Florida Bar Association Continuing Education Credits sponsored by LEAP: Ladies Education and Action Program, September 22, 2018. “Substance Abuse, Mental Health, and Incarceration.”
University of Southern California Interdisciplinary Research Training Institute, June 1, 2018: “NIH F31 Grant Submission: Lessons Learned.”
University of Southern California Interdisciplinary Research Training Institute, June 6, 2017: “Incarceration and Health: Implications for Racial/Ethnic Health Disparities”
University of Miami Miller School of Medicine Cultural Awareness Week, January 25, 2017: “Health & Justice: Issues in Correctional Health & Healthcare.”
Florida International University (FIU) Center for Research on U.S. Latino HIV/AIDS and Drug Abuse (CRUSADA) Brown Bag Lunch Lecture Series, November 22, 2016: “Inequalities in Health Service Use among Former Inmates: Implications for Health Disparities.”

SERVICE

University of Miami Department of Sociology & College of Arts and Sciences (CAS)

2019 - 2021 2019 - 2020 2019 2019 2018 - 2019 2018 - 2019 2018 2017 - 2019 2017 - 2018 2016 - 2017 2016 - 2017

College Curriculum Committee Department of Sociology Chair Search Committee Member Academic Advisory Board Member, Master of Arts in Global Health and Society Reviewer for CAS Beyond The Book program Medical Sociology Candidate Search Committee Co-Chair Medical Sociology Comprehensive Examination Committee Chair Reviewer for CAS Beyond The Book program, College of Arts & Sciences Media Director, Criminology & Criminal Justice Program Evaluation Committee for Arts & Sciences Graduate Student Awards Website & Social Media Committee, Department of Sociology Undergraduate Committee, Department of Sociology
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2016 - 2018 Medical Sociology Comprehensive Exam Committee, Department of Sociology

2016 -

Medical Sociology Planning Committee, Department of Sociology

Student Advisee

Role

Expected/ Awarded

Title

Doctoral Dissertation Committee Member

Oshea Johnson

Chair

2022

Mass Incarceration, Critical Geographies, and Racial Health Disparities [tentative]

Kaitlin Pericak

Chair

2021

Perpetuating a Culture of Distrust: Experiences Surrounding Injury Among Collegiate Athletes

Felicia Casanova

CoChair

2021

Navigating Health Disparities: The Role of the Community Health Worker in the South Florida Farm Worker Community

Kapriske Seide

Member

2021

Bringing in the Black Body: A Phenomenological Study of Acquired Physical Disability Among Earthquake Survivors in Haiti

Alcohol Consumption in Botswana: “What’s the Problem

Tebogo Banthusi Member 2021 Represented to be” An Analysis of Policy, Governmentality and the

Logics of Alcohol Control Measures in Botswana. 2008-2018.

Master’s Thesis Committee Member

Oshea Johnson

Chair

2018

Assessment of Racial/Ethnic Differences in ‘Patient Satisfaction’ that Impact Perceived Quality of Health Care Treatment

Senior Honor’s Thesis Committee Member

Naomi Campbell

Chair 2020 (Fall) TBD

Katrina Riveron

Chair 2020 (Fall) TBD

Joshua Kleinman Chair

2020

Neighborhood Racial Segregation and Biological Risk

Leah Stern

Chair

2019

Connor Fleischacker

Chair

2019

Noureen Ahmed Chair

2018

Committee for Independent Major

Sydney Steel

Member 2019

Health Disparities in HPV Attitudes and Vaccination Rates: Results from a National Survey of Parents Relationship between Measures of Juvenile Delinquency and Mental Health Outcomes The Correlation between Family Involvement, Health Care and a Kindergarten Students Academic Performance
Global Health & Social Medicine

Sofia Mohammad Member 2021 Global Health Disparities

Discipline 2020 2020 - 2022
2020 - 2021
2019 - pres. 2019 - 2020
2019 - pres.
2019

SSSP Conference Session Organizer, Presider, and Discussant Member, Board of Directors of the Academic Consortium on Criminal Justice Health [elected position] Division Chair, Drinking & Drugs Division, Society for the Study of Social Problems [elected position] Member, MACS/WIHS Combined Cohort Study (CCS) Psychobehavioral Working Group Planning Committee Member for J-SHIP Inaugural Meeting supported through a CFAR Supplement Award (P30A1042853) Steering Committee, Justice, Substance Use, & HIV Involved Persons (J-SHIP), Inter-CFAR Working Group NHSN PODS Networking Luncheon Organizer
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2019 2018 - 2019 2018 2018 2018 2018 2017 - 2019 2017 2017 - pres. 2016 2016 2016 2016 2016 2015 - 2019 2015 - 2019 2015 2015 2015 2014 - 2016
2014 2014 2014 - 2016 2014 2013 - 2015 2013 2013 2013 - 2015 2012

Student Paper Award Committee, ASA Alcohol, Drugs, & Tobacco Section Conference Planning Committee, 2019 annual meeting of American Society of Criminology NHSN Conference Planning Committee SSSP Conference Session Organizer Student Paper Award Committee Chair, ASA Alcohol, Drugs, & Tobacco Section Student Paper Award Committee, SSSP Drinking & Drugs Division Secretary and Treasurer, ASA Alcohol, Drugs, & Tobacco Section SSSP Conference Session Organizer SSSP Meeting Mentor ASC Conference Session Organizer NHSN Awards Selection Committee NHSN Conference Panel Organizer & Session Chair SSSP Conference Session Organizer, Presider, & Discussant SSSP Arlene Kaplan Daniels Paper Award Committee Editorial Committee Chair & Webmaster, ASA Alcohol, Drugs, & Tobacco Section Social Media Committee Chair, SSSP Drinking & Drugs Division Junior Scholar Award Committee Chair, ASA Alcohol, Drugs, & Tobacco Section ASA Conference Session Organizer Co-Editor, The Student Sociologist, American Sociological Association Student Member, Board of Directors of the Society for the Study of Social Problems [elected position] Co-Editor, Society for the Study of Social Problems Drinking & Drugs Newsletter Senior Scholar Award Committee, ASA Alcohol, Drugs, & Tobacco Section Student Representative, Society for the Study of Social Problems Board of Directors ASA Conference Session Organizer Member, Student Forum Advisory Board of the American Sociological Association Elections Committee, ASA Alcohol, Drugs, & Tobacco Section Session Chair, American Society of Criminology Student Affairs Committee, American Society of Criminology Junior Scholar Award Committee, ASA Alcohol, Drugs, & Tobacco Section

Ad Hoc Reviewer Journal of Drug Issues; Social Forces; Journal of Correctional Health Care; Criminal Behaviour and Mental Health; Women & Health; Journal of Immigrant and Minority Health; Journal of Urban Health; Psychology, Health, & Medicine; Journal of Affective Disorders; Journal of Adolescent Health; Journal of Health & Social Behavior; Substance Use and Misuse; Journal of Applied Gerontology; International Journal of Prisoner Health; Justice Quarterly; Social Science & Medicine; American Journal of Public Health; Women’s Health Issues

EXTERNAL TRAVEL AWARDS & OTHER HONORS
2019 UM Center for AIDS Research Travel Award Recipient 2018 NIDA National Hispanic Science Network Scientific Development Travel Award Recipient 2017 NIDA National Hispanic Science Network Scientific Development Travel Award Recipient 2016 NIDA National Hispanic Science Network Scientific Development Travel Award Recipient
3rd Annual Institute of Behavioral Science Student Research Symposium Poster Award Langeloth Scholarship, 9th Academic and Health Policy Conference on Correctional Health 2015 NIDA National Hispanic Science Network Scientific Development Travel Award Recipient
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 Case 2:20-cv-00901-DJH--DMF Document 16 Filed 05/14/20 Page 1 of 28

1 Daniel P. Struck, Bar No. 012377 Rachel Love, Bar No. 019881
2 Nicholas D. Acedo, Bar No. 021644 Jacob B. Lee, Bar No. 030371
3 STRUCK LOVE BOJANOWSKI & ACEDO, PLC 3100 West Ray Road, Suite 300
4 Chandler, Arizona 85226 Telephone: (480) 420-1600
5 dstruck@strucklove.com rlove@strucklove.com
6 nacedo@strucklove.com jlee@strucklove.com
7 Attorneys for Defendant-Respondent Kris
8 Kline

9 MICHAEL BAILEY United States Attorney
10 District of Arizona WILLIAM C. STAES
11 Assistant United States Attorney Illinois State Bar No. 6314835
12 40 North Central Avenue, Suite 1800 Phoenix, AZ 85004-4449
13 Telephone: (602) 514-7500 Fax: (602) 514-7693
14 William.Staes@usdoj.gov

15 Attorneys for Defendants-Respondents David Gonzales, Donald Washington,
16 and Michael Carvajal

17

UNITED STATES DISTRICT COURT 18

DISTRICT OF ARIZONA 19

Maria Guadalupe Lucero-Gonzalez, et al., 20

NO. CV-20-00901-PHX-DJH (DMF)

21 v.
22 Kris Kline, et al.,
23
24

Plaintiffs-Petitioners, Defendants-Respondents.

DEFENDANTS-RESPONDENTS’ JOINT RESPONSE IN
OPPOSITION TO MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION

25

Defendants-Respondents Kris Kline, Warden of the Central Arizona Florence

26 Correctional Complex (“CAFCC”); David Gonzales, U.S. Marshal for the District of

27 Arizona; Donald W. Washington, Director of the U.S. Marshals Service (“USMS”); and

28

Case 2:20-cv-00901-DJH--DMF Document 16 Filed 05/14/20 Page 2 of 28

1 Michael Carvajal, Director of the Federal Bureau of Prisons (“BOP”), by and through their

2 undersigned counsel, submit this Joint Response in opposition to Plaintiffs-Petitioners’

3 Motion for Temporary Restraining Order and Preliminary Injunction (Dkt. 2).1 For the

4 following reasons, Petitioners’ Motion should be denied.

5 I. 6

Procedural Background and Relevant Facts. Petitioners and Their Allegations.

7

Petitioners are five pretrial or post-conviction federal criminal detainees at the

8 Central Arizona Florence Correctional Complex (“CAFCC”). (Dkt. 1, ¶¶ 19–23.) CAFCC

9 is owned and operated by CoreCivic, Inc., and houses federal criminal detainees pursuant

10 to a service agreement with the United States Marshals Service. (Bayless Decl., ¶¶ 5–6.)

11 The following summarizes each Petitioner’s criminal case:2

12

Maria Guadalupe Lucero-Gonzalez, Case No. 4:19-cr-03359-JGZ-BGM-1 (related

13 case 2:19-cr-00426-JGZ-BGM-1). She is charged with illegal reentry of removed alien, in

14 violation of 8 U.S.C. § 1326(a), enhanced by 8 U.S.C. § 1326(b). After holding a bond

15 hearing pursuant to 18 U.S.C. § 3142(f), the court ordered Ms. Lucero-Gonzalez detained,

16 finding probable cause to believe that she has committed an offense and a serious risk that

17 she will not appear. On April 28, 2020, the court denied Ms. Lucero-Gonzalez’s motion to

18 review detention order.

19

Claudia Romero-Lorenzo, Case No. 4:20-cr-00171-JGZ-EJM-1. She entered a

20 guilty plea to one count of illegal reentry of removed alien, in violation of 8 U.S.C.

21 §§ 1326(a), enhanced by 8 U.S.C. § 1326(b), which the court accepted on January 30, 2020.

22 Following a bond hearing pursuant to 18 U.S.C. § 3142(f), on February 4, 2020, the court

23 ordered Ms. Romero-Lopez detained, finding probable cause to believe that she has

24

25

1 There is no personal jurisdiction over Defendants-Respondents with respect to non-

habeas subject matter jurisdiction and claims because there has been no service of process.

26 In providing this court-ordered Response, they do not waive any available defenses.

27

2 The Court may take judicial notice of the factual and procedural posture of each

criminal case. See Rosciano v. Sonchik, 2002 WL 32166630, at *6 (D. Ariz. Sept. 9, 2002);

28 Fed. R. Evid. 201.

2

Case 2:20-cv-00901-DJH--DMF Document 16 Filed 05/14/20 Page 3 of 28

1 committed an offense and a serious risk that she will not appear. The court reset her

2 sentencing hearing for June 12, 2020, pursuant to General Order 20-17.

3

Tracy Ann Peuplie, Case No. 4:20-cr-00299-CKJ-DTF. She is charged in a four-

4 count Indictment with conspiracy to possess with intent to distribute methamphetamine, in

5 violation of 21 U.S.C. § 846; possession and intent to distribute methamphetamine, in

6 violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii); importation of methamphetamine

7 into the United States from Mexico, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and

8 960(b)(1)(H); and conspiracy to import methamphetamine into the United States from

9 Mexico, in violation of 21 U.S.C. § 963. Following a bond hearing pursuant to 18 U.S.C.

10 § 3142(f), on January 30, 2020, the court ordered Ms. Peuplie detained, finding, among

11 other things, that she presents a flight risk and danger to the public safety. The court granted

12 her motion to continue trial until July 21, 2020.

13

James Tyler Ciecierski, Case No. 4:19-cr-03122-RM-LAB-1. He is charged in a

14 one-count Indictment with bank robbery by force or violence, in violation of 18 U.S.C.

15 § 2113(a). On December 3, 2019, Magistrate Judge D. Thomas Ferraro held a detention

16 hearing and ordered Mr. Ciecierski released to a residential treatment facility subject to

17 various conditions of release. Upon the Government’s petition to revoke pre-trial release,

18 alleging that Mr. Ciecierski had violated the conditions of his release, on April 1, 2020,

19 Magistrate Judge Ferraro ordered him detained pending trial. The court affirmed that

20 decision, finding, among other things, that Mr. Ciecierski presents a flight risk and he had

21 not shown that release would mitigate the risk to his health posed by COVID-19 to

22 overcome the factors set forth in 18 U.S.C. § 3142(g) weighing in favor of detention.

23

Marvin Lee Enos, Case No. 4:19-cr-02041-JAS-DTF. He is charged in a four-count

24 Indictment with aggravated sexual abuse, in violation of 18 U.S.C. §§ 2241(a)(1),

25 2246(2)(A), and 1153, and assault with intent to commit aggravated sexual abuse, in

26 violation of 18 U.S.C. §§ 113(a)(1) and 1153. Following a detention hearing on September

27 3, 2019, the court ordered Mr. Enos detained, finding, among other things, that he presents

28 a flight risk and danger to the safety of other persons or the community. On April 30, 2020,

3

Case 2:20-cv-00901-DJH--DMF Document 16 Filed 05/14/20 Page 4 of 28

1 the court denied his emergency motion for reconsideration of detention in light of COVID-

2 19 and his alleged health conditions that place him at especially high risk from the virus.

3 Trial in his case is set for July 28, 2020.

4

Petitioners allege that the conditions of their confinement at CAFCC expose them to

5 “unreasonable risk of contracting COVID-19,” in violation of their Fifth Amendment right

6 to due process and their Eighth Amendment right to be free from cruel and unusual

7 punishment. (Dkt. 1, ¶¶ 45, 80–103.) More specifically, they allege the following: up to

8 80 detainees share the same housing unit (pod); up to 14 detainees share the same cell, toilet,

9 and sink within each pod; “[s]ometimes” a detainee who is in quarantine is removed “by

10 mistake” and placed in general population before the end of the 14-day quarantine period;

11 detainees “frequently stand close together in lines when waiting for food at mealtime, for

12 medical appointments … and for the communal telephones”; Petitioners did not receive

13 masks until mid-April 2020 or not at all; detainees are not required to wear masks when in

14 the housing units or cells; staff are not consistently wearing masks or gloves; Petitioners

15 receive, only once per week, a small amount of soap and shampoo and are required to

16 purchase additional supplies from the commissary; the housing units and cells are not

17 “adequately and consistently” cleaned; only a “handful” of detainees have been tested for

18 COVID-19 or checked for symptoms; and detainees are not provided information regarding

19 COVID-19. (Id., ¶¶ 46–60.) Petitioners also criticize Respondents’ policy of “quarantining

20 groups of persons who are transferred to [CAFCC] on the same day.” (Id., ¶ 61.)

21

Petitioners contend that Respondents “must address [the risk of contracting COVID-

22 19] by following public-health guidelines, including those by the Centers for Disease

23 Control and Prevention (‘CDC’).” (Id., ¶ 44.) They seek a non-descript permanent

24 injunction that will “ensure” all detainees can “practice social (or physical) distancing at all

25 times” and “practice adequate hygiene”; “frequently touched surfaces” are “cleaned and

26 disinfected with disinfectant products effective against” COVID-19; every detainee and

27 staff member have access to “adequate personal protective equipment”; every detainee or

28 staff member “exposed to COVID-19” is quarantined in a non-punitive setting and tested

4

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1 for COVID-19; Respondents “implement novel coronavirus testing procedures”; and, if all

2 else fails, that the Court order Respondents to “release” an unstated number of detainees

3 pursuant to a “writs of habeas corpus.” (Id. at 26–27.)

4

The Extensive Measures Taken by Respondents to Protect Detainees and

Staff at CAFCC from Exposure to COVID-19. 5

The aforementioned allegations derive from the Declarations of the five Petitioners,

6

none of which are signed under penalty of perjury by the Petitioners themselves, and one

7

Assistant Federal Public Defender, who admittedly has no personal knowledge of the

8

conditions at CAFCC (Dkt. 1-3, ¶ 25). Petitioners’ allegations do not reflect at all the reality

9

of what is actually happening at CAFCC or the significant efforts and measures

10

Respondents have taken in response to COVID-19 to safeguard the health and well-being

11

of inmates and detainees in their care at CAFCC. (See Declarations of Acting Chief Deputy

12

Bayless, Dr. Ivens, and Warden Kline.)

13

CAFCC has a total design capacity of 5,003 detainees, including 3,110 USMS

14

detainees, who are housed across 15 units of varying layouts and designs, including

15

traditional two-person cells and larger cells housing 14–16 detainees. (Kline Decl., ¶¶ 9–

16

11.) As of May 13, 2020, CAFCC was operating at 62% of its design capacity, with 3,090

17

total detainees and 3,045 USMS detainees. (Id., ¶ 13.) New intakes have decreased from

18

an average of 100 per day to an average of five per day since March 19, 2020, and the total

19

detainee population at CAFCC has decreased by approximately 1,300 in that same

20

timeframe. (Id., ¶ 14.)

21

As of May 13, 2020, only 15 detainees at CAFCC—less than 0.5% of the total

22

population—have tested positive for COVID-19. (Id., ¶¶ 13, 15.) More importantly, only

23

one positive test has come out of CAFCC’s general population; 13 were new intakes

24

identified during their initial 14-day cohort period, and one was confirmed positive at

25

another facility before being transferred to CAFCC. (Id., ¶¶ 16–17, 62.)

26

This low infection rate is due to CAFCC’s prompt and coordinated efforts to comply

27

with CDC Interim Guidance regarding COVID-19 in correctional and detention facilities

28

5

Case 2:20-cv-00901-DJH--DMF Document 16 Filed 05/14/20 Page 6 of 28

1 beginning as early as February 2020. (Id., ¶¶ 20–135.) Since the beginning of the

2 pandemic, CoreCivic has coordinated with facility leadership to implement protocols

3 consistent with CDC guidelines, which have been adapted by CAFCC leadership based on

4 the facility’s unique detainee population, physical plant, and safety and security concerns.

5 (Id., ¶¶ 20–25, 28–30; see also Ivens Decl., ¶¶ 11–13.) CAFCC Warden Kline has also

6 been in continual contact with USMS, ICE, and the City of Mesa—all of whom have

7 detainees at CAFCC—as well as the Pinal County Public Health Services District and other

8 local government bodies and officials to coordinate CAFCC’s response. (Kline Decl.,

9 ¶¶ 26-27; Ivens Decl., ¶¶ 11–13; Bayless Decl., ¶¶ 9–11.)

10

1. Cohort/Quarantine Strategies.

11

CAFCC is constantly reviewing and adapting its contingency plans as circumstances

12 and guidelines evolve. (Id., ¶¶ 31–32.) Beginning March 19, 2020, CAFCC has been

13 cohorting new arrivals and detainees returning from outside transports for 14 days based on

14 their intake/facility return date in order to minimize the risk that these detainees may bring

15 COVID-19 into the facility. (Id., ¶¶ 33–40; Ivens Decl., ¶ 20.) While they are cohorted,

16 detainees are housed individually as much as possible. (Kline Decl., ¶ 37.) They are only

17 allowed to be out of their cells with other detainees from their own cohort group, and the

18 dayroom and other common areas are sanitized between groups with a disinfectant

19 registered by the EPA as effective against COVID-19. (Id., ¶ 39.)

20

Any allegations that CAFCC is allowing healthy detainees to be exposed to

21 symptomatic detainees are false. (Id., ¶¶ 45-46; Ivens Decl., ¶¶ 22–23.) Detainees who

22 display symptoms of COVID-19 are quarantined in J Pod pending medical assessment and

23 testing as directed by medical staff, and the detainee’s pod in placed on quarantine status

24 for 14 days. (Kline Decl., ¶ 41.) Symptomatic detainees are transported from their pod to

25 J Pod via facility transport vehicle, which is disinfected before and after each use. (Id.,

26 ¶ 42.) They remain in J Pod until they are symptom-free for 72 hours, then they are cohorted

27 for an additional 14 days before they return to a general population (“GP”) pod. (Id.,

28 ¶¶ 43–44.)

6

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1

Staff entering a cohort or quarantine area observe strict PPE requirements, including

2 a full suit/coveralls, rubber boots, gloves, N-95 mask, and goggles/face shield. (Id., ¶ 47.)

3 Upon exiting, staff proceed through a decontamination zone where their PPE is sanitized or

4 disposed of as appropriate, and where they practice appropriate hygiene. (Id., ¶¶ 48–49.)

5

Cohorting and quarantining are not punitive measures. (Id., ¶ 50.) Detainees in these

6 statuses are provided the same opportunities and services as they would receive in GP. (Id.,

7 ¶¶ 50–51, 58–60.)

8

On March 18, 2020, CAFCC identified 67 detainees at higher risk of severe illness

9 based on CDC guidelines, and it updates that list regularly as new detainees are booked into

10 CAFCC and others are transferred or released. (Id., ¶ 52.) CAFCC monitors the detainees

11 on that list and ensures they continue to receive medical care for their underlying conditions,

12 but does not cohort them in order to avoid inadvertently exposing them to COVID-19. (Id.,

13 ¶¶ 53–56.) As of May 13, 2020, none of these higher-risk detainees have been exposed or

14 suspected of being exposed to COVID-19, and none have tested positive. (Id., ¶ 57.)

15

2. Efforts to Mitigate Risk of Introduction/Spread of COVID-19.

16

Consistent with CDC guidelines, CAFCC has taken ample and appropriate steps to

17 reduce COVID-19 exposure and infection for detainees and staff. (Id., ¶ 61.) CAFCC’s

18 low infection numbers are a testament to the success of these efforts. (Id., ¶ 62.)

19

CAFCC suspended social visitation and volunteer entry on March 12, 2020. (Id.,

20 ¶ 63.) Legal visitation has not been suspended, but non-contact visitation, including through

21 the use of telephones or the facility video teleconferencing (“VTC”) system is encouraged.

22 (Id., ¶¶ 64, 66.) If an attorney requests a contact visit, the visitation area is sanitized before

23 and after the visit. (Id., ¶ 65.) The VTC system is also used for various court appearances,

24 as CAFCC does not currently transport detainees for in-person court hearings due to

25 restrictions imposed by the District of Arizona. (Id., ¶¶ 67–68.)

26

All persons entering the facility are subject to screening consisting of a series of

27 questions and a temperature check. (Id., ¶¶ 69–75, 77.) All entrants are required to wear a

28 mask, and staff conducting the screening wear full PPE, including coveralls, gloves, N-95

7

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1 mask, and face shield, and social distancing measures are employed. (Id., ¶¶ 70–73.)

2 CAFCC employs contact tracing to identify any additional employees or detainees who may

3 require additional surveillance, precautions, or testing in order to minimize the spread of

4 COVID-19 within the facility after an employee or detainee tests positive or is denied entry

5 to the facility. (Id., ¶¶ 75–76.)

6

CAFCC has also limited detainee movement within and outside of the facility, and

7 requires detainees to wear face masks any time they leave their pod. (Id., ¶¶ 78–80.) All

8 non-urgent transports for outside medical consults have ceased, and those detainees who

9 are transported are screened before transport and cohorted for 14 days when they return.

10 (Id., ¶¶ 79–80.)

11

CAFCC began increasing its stock of PPE and sanitation supplies in February, and

12 has plenty of supplies on-hand. (Id., ¶¶ 81–82, 106.) CAFCC has always required staff to

13 wear gloves when interacting with detainees, their cells, and their personal property as part

14 of universal precautions. (Id., ¶ 83.) And CAFCC continues to adjust its policies and

15 procedures as circumstances evolve, such as with regard to the wearing of face masks by

16 persons who are well, which the CDC only recently began recommending. (Id., ¶¶ 84–89.)

17 Staff have been permitted to wear a cloth or paper face mask since April 11, 2020, and

18 CAFCC distributed paper face masks to detainees on April 13, 2020, and again on May 11,

19 2020. (Id., ¶¶ 87–89.) The masks were provided at no cost to the detainees, and will be

20 replaced as needed and requested. (Id., ¶¶ 88–89.)

21

Detainees are encouraged to wear masks inside their housing pods, but CAFCC does

22 not enforce the failure to do so as a rules violation for various safety, security, and

23 operational concerns. (Id., ¶¶ 90–91.) As noted above, however, they are required to wear

24 them to leave the pod for any reason. (Id., ¶ 78.) Detainees participating in the facility

25 Voluntary Work Program (“VWP”) as pod porters, kitchen workers, commissary workers,

26 and laundry workers are provided with masks, gloves, and other appropriate equipment.

27 (Id., ¶¶ 92, 103, 120.)

28

8

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1

3. Staff and Detainee Education.

2

CAFCC has long trained its staff with respect to exposure to pathogens, preventing

3 the spread of disease, emergency response, and adherence to universal precautions. (Id.,

4 ¶ 93.) Consistent with CDC guidelines, CAFCC has posted educational materials

5 throughout the facility and in all housing units regarding COVID-19 symptoms, what to do

6 if you are sick, hand-washing, sanitation and cleanliness, mask use, and steps to reduce the

7 risk of exposure. (Id., ¶ 94.) Unit staff also hold regular town halls meetings each time

8 procedures change, resulting in these meetings occurring once or twice per week on

9 average, all of which are documented in written Town Hall Meeting Records that are posted

10 in the housing units as well. (Id., ¶¶ 95–96.) Town hall meetings in recent weeks have

11 covered such topics as the issuance and use of face masks, the number of infected persons

12 at the facility, and social distancing strategies. (Id., ¶ 96.) During these town hall meetings,

13 staff regularly remind detainees to maintain appropriate social distances, and staff are

14 always available to answer questions or respond to detainees’ concerns. (Id., ¶¶ 97–98.)

15

4. Maintaining Social Distancing.

16

CAFCC has implemented practices to promote social distancing. (Id., ¶ 99.) The

17 dayroom areas of CAFCC’s housing pods are large and allow ample space for detainees to

18 practice social distancing, and they are regularly advised of the importance of doing so.

19 (Id., ¶¶ 100–101.) Although they are encouraged to practice social distancing within their

20 pods, CAFCC does not enforce the failure to do so for various safety, security, and

21 operational concerns. (Id., ¶ 104.)

22

CAFCC has not eliminated programming, but has reduced it by limiting activities to

23 groups of less than 10 to comply with applicable guidelines and to allow six feet of social

24 distancing. (Id., ¶ 102.) Additionally, CAFCC used a satellite feeding procedure long

25 before COVID-19 in which meals are delivered to the housing units rather than having the

26 detainees come to a dining hall. (Id., ¶ 103.) Kitchen workers wear appropriate PPE, and

27 detention officers inside the pod remind detainees to practice appropriate social distancing

28 while they wait in line for their meal. (Id.) Once they receive their trays, detainees are

9

Case 2:20-cv-00901-DJH--DMF Document 16 Filed 05/14/20 Page 10 of 28

1 permitted to eat wherever they would like within the pod, such as at the dayroom tables or

2 in their cells, in order to further facilitate social distancing. (Id.)

3

5. Enhanced Sanitation Procedures.

4

Consistent with CDC guidelines, CAFCC has enhanced its already robust sanitation

5 practices in response to COVID-19. (Id., ¶ 105.) CAFCC checks and restocks its inventory

6 of cleaning chemicals and supplies, which it began increasing in February 2020, every day

7 to maintain a sufficient supply on hand and to guard against shortages in the public market,

8 and has updated and enhanced its facility housekeeping plan to specifically include the use

9 of EPA-registered disinfectants and use of PPE in areas where COVID-19 might be present.

10 (Id., ¶¶ 106–107.) CAFCC staff also instruct detainees on proper sanitization of common

11 area surfaces before and after each use, such as telephones and kiosks, and provides

12 detainees with ample supplies to do so, including HDQC2, which has been confirmed by

13 the EPA as effective against COVID-19. (Id., ¶¶ 108–114.) Detainees are also provided

14 two bars of soap and a bottle of shampoo/body wash each week, and will be provided

15 replacements if they run out before the weekly distribution. (Id., ¶ 109.) Any allegations

16 that detainees are not provided sufficient cleaning supplies or soap are false. (Id., ¶¶ 110,

17 114.) In April 2020 alone, CAFCC distributed approximately 27,960 bars of soap and

18 13,980 bottles of shampoo/body wash free of charge to detainees. (Id., ¶ 110.)

19

CAFCC has divided the facility into zones and assigned a staff supervisor to each

20 zone who is tasked with verifying that all hard-surface, high-touch areas in their zone are

21 cleaned and disinfected multiple times per day on a regular schedule. (Id., ¶ 115.) Detainees

22 performing these tasks are given masks and gloves. (Id.) Each housing pod also has 10-20

23 detainee pod porters who are assigned to clean the common areas, including hard-surface,

24 high-touch areas, at various times during the day. (Id., ¶ 116.) Between the two activities,

25 high-touch hard surfaces are cleaned and disinfected at least once per hour. (Id.) CAFCC

26 has also made changes to employee time clock procedures, and requires that mattresses,

27 library books and carts, commissary and meal carts, library kiosks, laundry, and medical

28 areas are cleaned and disinfected frequently. (Id., ¶¶ 117–121.) When cleaning an area

10

Case 2:20-cv-00901-DJH--DMF Document 16 Filed 05/14/20 Page 11 of 28

1 where a confirmed COVID-19-positive detainee was housed, staff wear full PPE, treat any

2 trash coming out of such units as medical waste, and follow strict Environmental Cleaning

3 and Disinfection Recommendations. (Id., ¶¶ 122–123.) CAFCC also cleans and disinfects

4 all transport vehicles before and after each use, and requires the use of masks and proper

5 personal hygiene for staff and detainees. (Id., ¶ 124.)

6

6. Restrictive Housing Units.

7

The RHU houses detainees in administrative or disciplinary detention. (Id., ¶ 125.)

8 Detainees in the RHU are housed individually as much as possible, remain in their cells for

9 up to 23 hours per day with limited interaction with other detainees, receive their meals in-

10 cell, and typically recreate alone in single-occupancy enclosures, meaning they are already

11 in a semi-quarantined state. (Id., ¶¶ 126–128.)3 Detainees in the RHU have been provided

12 paper masks, and have been educated on appropriate hand-washing, hygiene, and

13 cleanliness per CDC Interim Guidance. (Id., ¶¶ 130–131.) Additionally, pod porters

14 assigned to the RHU perform the same enhanced sanitation practices described above,

15 including regular deep cleanings of the unit, and detainees in the RHU are provided cleaning

16 and disinfecting supplies as described above to clean their cells. (Id., ¶ 131.)

17

7. Conditions of Confinement in Housing Pods.

18

Petitioners are currently assigned to Pods 900C, 1100A, 1100B, 1100F, and 1200C;

19 Unit 900 is the RHU. (Id., ¶ 132.) The dayrooms of these pods are large, and allow ample

20 space for detainees to practice proper social distancing. (Id., ¶ 133.) Detainees in these

21 pods—as in all pods throughout the facility—are regularly advised of the importance of

22 wearing face masks and social distancing when outside of their cells. (Id., ¶ 134.) All

23 facility-wide COVID-19 response operations described above are in place for these pods as

24 well. (Id., ¶ 135.)

25

26

27

3 Staff check on detainees in the RHU every 30 minutes; medical staff make rounds

twice each day, and mental health staff make daily rounds; and detainees are given the

28 opportunity to participate in weekly Segregation Committee meetings. (Id., ¶ 129.)

11

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1

Petitioners’ Motion for Preliminary Injunction.

2

Petitioners’ Motion for Preliminary Injunction seeks an order appointing a Rule 706

3 expert to inspect CAFCC and review “whether Defendants have implemented consistent

4 social (or physical) distancing, novel coronavirus testing procedures, and hygienic practices

5 sufficient to reasonably protect [them] from contracting COVID-19.” (Dkt. 2-1, ¶ 1.) The

6 appointed expert must do this within 48 hours of granting Petitioners’ request and, if the

7 expert concludes that the practices at CAFCC are inadequate, the expert must submit

8 (within 24 hours of the review) recommendations “as to how such practices should be

9 achieved.” (Id., ¶¶ 2–3.) Respondents “shall” then implement the expert’s

10 recommendations “immediately,” provide weekly updates on their progress, and “complete

11 the implementation within the timeline established by the expert,” unless good cause is

12 shown. (Id., ¶ 4.)

13 II. Standard of Review.

14

“The grant of a preliminary injunction is the exercise of a very far reaching power

15 never to be indulged in except in a case clearly warranting it.” Dymo Indus., Inc. v.

16 Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964). Because an injunction is “an

17 extraordinary remedy,” it “may only be awarded upon a clear showing that the plaintiff is

18 entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)

19 (emphasis added). Petitioners must demonstrate “‘[they are] likely to succeed on the merits,

20 that [they are] likely to suffer irreparable harm in the absence of preliminary relief, that the

21 balance of equities tips in [their] favor, and that an injunction is in the public interest.’” Am.

22 Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting

23 Winter, 555 U.S. at 20). Alternatively, “serious questions going to the merits and a hardship

24 balance that tips sharply towards the plaintiff can support issuance of an injunction,

25 assuming the other two elements of the Winter test are also met.” Alliance for Wild Rockies 26 v. Cottrell, 632 F.3d 1127, 1131–32 (9th Cir. 2011). This is a “heavy burden.” Center for 27 Competitive Politics v. Harris, 784 F.3d 1307, 1312 (9th Cir. 2015).

28

12

Case 2:20-cv-00901-DJH--DMF Document 16 Filed 05/14/20 Page 13 of 28

1 III. Petitioners Have Failed to Make a Clear Showing That They Are Entitled to a

Preliminary Injunction.

2

Petitioners Have Not Established That They Are Likely to Succeed on

3

the Merits of Their Claims.

4

“Likelihood of success on the merits is the most important factor; if a movant fails

5 to meet this threshold inquiry, [the Court] need not consider the other factors.” California

6 v. Azar, 911 F.3d 558, 575 (9th Cir. 2018) (internal quotations and citation omitted). A

7 court may deny a preliminary injunction if the request involves “doubtful and difficult

8 questions of law or disputed questions of fact,” Dymo, 326 F.2d at 143, or if there are

9 “material disputed issues of fact which cast reasonable doubt upon the certainty of

10 plaintiff’s prevailing at a trial on the merits,” Knudsen Corp. v. Ever-Fresh Foods, Inc., 336

11 F. Supp. 241, 248 (C.D. Cal. 1971). The substantial evidence recounted in Section II.B—

12 particularly when compared to the unsworn Declarations of the five Petitioners—forecloses

13 any conclusion that Petitioners have clearly shown that they are likely to succeed on the

14 merits of their claims.

15

1. Petitioners did not exhaust their administrative remedies.

16

The Prison Litigation Reform Act (“PLRA”) mandates that “[n]o action shall be

17 brought with respect to prison conditions under … any … Federal law, by a prisoner

18 confined in any jail, prison, or other correctional facility until such administrative remedies

19 as are available are exhausted.” 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 85

20 (2006) (“Exhaustion … is mandatory.”). The PLRA’s mandatory exhaustion requirement

21 applies equally to pretrial criminal detainees, 42 U.S.C. § 1997e(h), and, indeed, “all inmate

22 suits about prison life[.]” Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion requires

23 compliance with “all steps” of the facility’s grievance system. Woodford, 548 U.S. at 88,

24 90–91. Strict compliance is necessary so that officials are alerted to “the nature of the wrong

25 for which redress [is] sought” and can “take corrective action where appropriate.” Fuqua 26 v. Ryan, 890 F.3d 838, 844 (9th Cir. 2018) (quoting Griffin v. Arpaio, 557 F.3d 1117, 1120 27 (9th Cir. 2009), and citing Reyes v. Smith, 810 F.3d 654, 658 (9th Cir. 2016)).

28

13

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1

Claims that were not properly and fully exhausted prior to filing suit are barred.

2 Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199–1201

3 (9th Cir. 2002). “This exhaustion obligation is mandatory—there are no ‘futility or other

4 judicially-created exceptions to the statutory exhaustion requirements.” Valentine v.

5 Collier, 956 F.3d 797, __ (5th Cir. 2020) (quoting Booth v. Churner, 532 U.S. 731, 741 n.6

6 (2001)). Nor is a detainee or inmate excused from complying with a facility’s grievance

7 process because of the “special circumstances of the COVID-19 crisis.” Id.; see also

8 Marlowe v. LeBlanc, No. 20-30276, 2020 WL 2043425, at *3 (5th Cir. Apr. 27, 2020).

9

Here, CAFCC has a specific grievance process. (Partain Decl., ¶¶ 7–32.) None of

10 the Petitioners, however, have exhausted that process. (Id., ¶¶ 33–60.) Their unsworn,

11 uncorroborated, and vague assertions that they submitted grievances that went unanswered

12 are controverted by evidence that they did not. They have also not established that the

13 process was unavailable to them. See Ross v. Blake, 136 S. Ct. 1850, 1853–54, 1859–60

14 (2016) (articulating only three circumstances). Because Petitioners have not exhausted their

15 administrative remedies, which is a threshold issue, they cannot succeed on the merits of

16 their claims and the Court should deny their motion for preliminary relief. See Swain v.

17 Junior, No. 20-11622-C, 2020 WL 2161317, at *7 (11th Cir. May 5, 2020); see also United

18 States v. Tomlinson, 2020 WL 1935522, at *1 (D. Ariz. Apr. 22, 2020) (denying federal

19 prisoner’s request for an early release in light of COVID-19 where he failed to exhaust

20 administrative remedies in strict compliance with 18 U.S.C. § 3582(c)(1)(A)(i)). Even if

21 there were a disputed fact as to exhaustion, that dispute precludes a “clear showing” that

22 they are likely to succeed.

23

2. Petitioners have not clearly shown that they will likely succeed on

their Eighth Amendment claim.

24

Petitioners’ Second Claim for Relief alleges unconstitutional conditions of

25 confinement in violation of the Eighth Amendment. (Dkt. 1, ¶¶ 93–103.) An Eighth

26 Amendment conditions-of-confinement claim alleging involuntary exposure to an

27 environmental hazard “requires an inmate to prove both an objective and a subjective

28

14

Case 2:20-cv-00901-DJH--DMF Document 16 Filed 05/14/20 Page 15 of 28

1 factor.” Hines v. Youseff, 914 F.3d 1218, 1228 (9th Cir. 2019). The objective component

2 requires the inmate to show an “objectively intolerable risk of harm,” Farmer v. Brennan,

3 511 U.S. 825, 846 (1994), i.e., the challenged conditions present an “unreasonable risk of

4 serious damage to his future health,” Helling v. McKinney, 509 U.S. 25, 35 (1993). The

5 subjective component requires the inmate to show that the prison official acted with

6 “deliberate indifference,” which means the official “knows of and disregards an excessive

7 risk to inmate health or safety, Farmer, 511 U.S. at 837. In other words, the official “must

8 both be aware of facts from which the inference could be drawn that a substantial risk of

9 serious harm exists, and he must also draw the inference.” Id. Even if a prison official

10 “actually knew of a substantial risk to inmate health or safety,” a petitioner cannot show

11 deliberate indifference where the official “reasonably responded to the risk, even if the

12 ultimate harm was not averted.” Id. at 844–45 (“[P]rison officials who act reasonably

13 cannot be found liable under the Cruel and Unusual Punishment Clause.”).

14

Here, Petitioners merely assert that the “risk of harm [posed by COVID-19] is

15 obvious” and that the measures Respondents have taken are “objectively unreasonable.”

16 This truncated and conclusory analysis—of both the objective and subjective prongs—is

17 woefully insufficient to establish an Eighth Amendment violation, much less “clearly” show

18 that Petitioners are likely to succeed on the merits of their claim. “There is no doubt that

19 infectious diseases generally and COVID-19 specifically can pose a risk of serious or fatal

20 harm to prison inmates.” Valentine, 956 F.3d 797, ___. But the “legal question is whether

21 the Eighth Amendment requires [Respondents] to do more” than what they have already

22 done. Id.; see also Marlowe, 2020 WL 2043425, at *2. Petitioners insist that Respondents

23 must comply with CDC guidelines and other unspecified public-health standards. But as

24 discussed above, Respondents are complying with CDC guidelines, which are legally

25 sufficient. See Valentine, 956 F.3d 797, ___ (“Plaintiffs have cited no precedent holding

26 that the CDC recommendations are insufficient to satisfy the Eighth Amendment.”); see

27 also Marlowe, 2020 WL 2043425, at *2 n.2 (noting that the warden’s declaration “blunts

28 many (if not all) of Plaintiffs’ concerns, giving us further cause to doubt that Plaintiff has

15

Case 2:20-cv-00901-DJH--DMF Document 16 Filed 05/14/20 Page 16 of 28

1 come close to satisfying the ‘extremely high burden’ of deliberate indifference”); Swain,

2 2020 WL 2043425 at *5 (same).

3

Petitioners also impermissibly “collapse[] the objective and subjective components

4 of the Eighth Amendment inquiry established in Farmer, treating inadequate measures as

5 dispositive of [Respondents’] mental state.” Valentine, 956 F.3d 797, ___; see also

6 Marlowe, 2020 WL 2043425, at *3 (condemning district court’s treatment of inadequate

7 measures as dispositive of defendant’s mental state, and noting that “an increase in infection

8 rate alone is insufficient to prove deliberate indifference”). General awareness of the

9 dangers posed by COVID-19 is not enough. Id. Nor is an allegation that social-distancing

10 policies are not uniformly enforced. Swain, 2020 WL 2161317, at *5. Only if Respondents

11 disregarded known dangers can they be considered deliberately indifferent. See id. at *4

12 (no deliberate indifference where prison officials did not subjectively believe that the

13 measures they were taking were inadequate). Here, the evidence shows that Respondents

14 “ha[ve] taken and continue[] to take measures—informed by guidance from the CDC and

15 medical professionals—to abate and control the spread of virus.” Id. At a minimum, their

16 response has been reasonable and any “disagreement” does not render them indifferent. Id.;

17 see also Swain, 2020 WL 2161317, at *4 (holding that the “inability to ‘achieve meaningful

18 social distancing’” does not evince a reckless state of mind); Marlowe, 2020 WL 2043425,

19 at *2 n.2 (“Defendants point to a plethora of measures they are taking to abate the risks

20 posed by COVID-19…”).

21

On this record, Petitioners have not established that they are likely to prove an Eighth

22 Amendment violation. See Grinis v. Spaulding, 2020 WL 2300313, at *1, 4 (D. Mass. May

23 8, 2020) (denying BOP inmates’ motion for a preliminary injunction requiring respondents

24 to “comply with CDC guidelines and best practices to prevent the spread of COVID-19,

25 including, without limitation, by reducing the prisoner population at FMC Devens

26 sufficiently to permit effective social distancing”).

27

28

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1

3. Petitioners have not clearly shown that they are likely to succeed

on their Fifth Amendment claim. 2
Petitioners contend that the objective deliberate indifference standard set forth in

3 Gordon v. County of Orange, 888 F.3d 1118 (9th Cir. 2018), applies to their Fifth

4 Amendment due process claims. (Dkt. 2 at 14–15.) Under that standard, a plaintiff must

5 establish that “the defendant made an intentional decision with respect to the conditions

6 under which the plaintiff was confined” and “did not take reasonable available measures to

7 abate” a “substantial risk of suffering serious harm” where “a reasonable official in the

8 circumstances would have appreciated the high degree of risk involved.” See Gordon, 888

9 F.3d at 1125. Moreover, “the defendant’s conduct must be objectively unreasonable,”

10 which requires the plaintiff to prove “more than negligence but less than subjective intent

11 — something akin to reckless disregard,” and which “turn[s] on the facts and circumstances

12 of each particular case.” Id. (internal quotations and citation omitted).

13

Even assuming the objective standard applies, 4 Petitioners are still unlikely to

14 succeed on the merits because the significant measures that Respondents have implemented

15 at CAFCC in response to COVID-19 show, at the very least, that Respondents have not

16 recklessly disregarded the health and safety of inmates and detainees in their care.

17 Petitioners’ bald assertions that Respondents have not taken reasonable measures is belied

18 by the record, as set out above in Section I.B. It is also belied by their request for a Rule

19 706 expert to “determine whether Defendants have implemented” adequate measures. (Dkt.

20 2-1 at 1–2, emphasis added.) Moreover, Petitioners have failed to establish that, in light of

21 those substantial precautionary measures Respondents have implemented, they are at

22 substantial risk of contracting COVID-19. Less than 0.5% of the total detainee population

23 have tested positive for COVID-19. (Kline Decl., ¶¶ 13, 15.) Petitioners’ Declaration from

24

25

4 Respondents do not concede the objective deliberate indifference standard applies

26

to Petitioners’ garden-variety conditions of confinement claims but assume it applies solely for purposes of this Response. See, e.g., Bulltail v. Yellowstone Cty. Judge Det. Facility,

27

2018 WL 3421375, at *2 (D. Mont. June 28, 2018) (noting “the Ninth Circuit has not expressly extended the objective deliberate indifference standards to all conditions of

28 confinement claims”).

17

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1 Dr. Goldenson is refuted by the Declaration of Dr. Ivens (¶¶ 17, 22, 24, 26, 33–34). In

2 addition, they cannot point to any intentional decision that has caused any risk of harm.

3 Even the failure to implement particular measures is not an “intentional decision.” See

4 Moriarty v. Cty. of San Diego, 2019 WL 4643602, at *10 (S.D. Cal. Sept. 24, 2019) (ruling

5 that the “failure to appreciate that he was suicidal was not an ‘intentional decision’” under

6 the objective-reasonableness test).

7

Petitioners alternatively argue that the conditions in CAFCC amount to pre-

8 adjudication punishment because of its “refusal to facilitate social distancing as needed to

9 prevent further spread of COVID-19.” (Dkt. 2 at 16.) Petitioners cannot dispute that their

10 detention serves “a permissible nonpunitive objective.” Bell v. Wolfish, 441 U.S. 520, 561

11 (1979). The premise of their argument—that CAFCC is refusing to take reasonable

12 measures—is simply incorrect and ignores the many measures that are currently in place to

13 prevent the spread inside the facility. At a minimum, those measures—which meet or

14 exceed CDC guidelines—are a reasonable response to COVID-19.

15

4. Petitioners cannot seek release from detention in a Habeas action

but must instead pursue relief under the Bail Reform Act and

16

Prison Litigation Reform Act.

17

The PLRA precludes this Court from ordering Petitioners’ request for release from

18 detention and reduction of detainee population. (Dkt. 1, Prayer for Relief, ¶ 6.) Congress

19 enacted the PLRA to “revive the hands-off doctrine,” which was “a rule of judicial

20 quiescence derived from federalism and separation of powers concerns[,]” in order to

21 remove the federal judiciary from day-to-day prison management. Gilmore v. California,

22 220 F.3d 987, 991, 996–97 (9th Cir. 2000) (ref. 141 Cong. Rec. S14418, at S14418-19

23 (1995); H.R. Rep. No. 104-378, at 166 (1995); and H.R. Rep. No. 104-21, at 24 n.2 (1995)).

24 The PLRA “restrict[s] the equity jurisdiction of federal courts,” Gilmore, 220 F.3d at 999,

25 and, “[b]y its terms . . . restricts the circumstances in which a court may enter an order ‘that

26 has the purpose or effect of reducing or limiting the prison population,’” Brown v. Plata,

27 563 U.S. 493, 511 (2011). The PLRA’s “requirements ensure that the ‘last remedy’ of a

28 population limit is not imposed ‘as a first step.’” Id. at 514 (quoting Inmates of Occoquan

18

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1 v. Barry, 844 F.2d 828, 843 (D.C. Cir. 1988)). “The release of prisoners in large numbers

2 . . . is a matter of undoubted, grave concern.” Plata, 563 U.S. at 501.

3

By its terms, the PLRA places strict limits on a district court’s ability to order the

4 release of inmates “in any civil action with respect to prison conditions,” and expressly

5 precludes a single district judge from doing so. 18 U.S.C. § 3626(a)(3)(B). That prohibition

6 applies to “any civil proceeding arising under Federal law with respect to the conditions of

7 confinement or the effects of actions by government officials on the lives of persons

8 confined in prison, but does not include habeas corpus proceedings challenging the fact or

9 duration of confinement in prison[.]” 18 U.S.C. § 3626(g)(2). In non-prohibited suits, the

10 court “may enter a temporary restraining order or an order for preliminary injunctive relief,”

11 but such injunctive relief “must be narrowly drawn, extend no further than necessary to

12 correct the harm the court finds requires preliminary relief, and be the least intrusive means

13 necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). Moreover, “[t]he authority to

14 release prisoners as a remedy to cure a systemic violation of the Eighth Amendment is a

15 power reserved to a three-judge district court, not a single-judge district court.” Plata, 563

16 U.S. at 500 (citing 18 U.S.C. § 3626(a)); see 18 U.S.C. § 3626(a)(3)(B). And a three-judge

17 court may not enter such an order unless “(i) a court has previously entered an order for less

18 intrusive relief that has failed to remedy the deprivation of the Federal right sought to be

19 remedied through the prisoner release order; and (ii) the defendant has had a reasonable

20 amount of time to comply with the previous court orders.” 18 U.S.C. § 3626(a)(3)(A).

21

Here, there can be no dispute that Petitioners’ lawsuit is a “civil action with respect

22 to prison conditions” governed by the PLRA. Although Petitioners invoke habeas corpus

23 and 28 U.S.C. § 2241, (Dkt. 1 at ¶¶ 17, 18), this is not a “habeas corpus proceeding[]

24 challenging the fact or duration of confinement in prison.” 18 U.S.C. § 3626(g)(2). Indeed,

25 a plain reading of the Complaint shows that Petitioners do not challenge the fact or duration

26 of their detention but instead challenge the conditions of their confinement at CAFCC as

27 inadequate to address the threat to health and safety posed by COVID-19. (Dkt. 1, ¶¶ 10,

28 15, 80–103.) Thus, this case is a “civil proceeding arising under Federal law with respect

19

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1 to the conditions of confinement or the effects of actions by government officials on the

2 lives of persons confined in prison” governed by the PLRA. 18 U.S.C. § 3626(g)(2).

3

The PLRA strictly limits the relief this Court may grant. Under the PLRA, a single

4 district court judge may not enter “a prisoner release order,” § 3626(a)(3)(B), which is

5 broadly defined to “include[ ] any order, including a temporary restraining order or

6 preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison

7 population, or that directs the release from or nonadmission of prisoners to a prison[.]” 18

8 U.S.C. § 3626(g)(4). Therefore, to the extent Petitioners seek an order or injunction that

9 would require Respondents to “release” an unstated number of class members “from

10 confinement” (Dkt. 1, Prayer for Relief, ¶ 10), the PLRA precludes that relief. Moreover,

11 courts have held that habeas is an inappropriate collateral attack when detainees can seek

12 release in their pending criminal cases, as Petitioners can here. Reese v. Warden

13 Philadelphia FDC, 904 F.3d 244, 246–48 (3d Cir. 2018); Medina v. Choate, 875 F.3d 1025,

14 1029 (10th Cir. 2017); Falcon v. U.S. Bureau of Prisons, 52 F.3d 137, 139 (7th Cir. 1995);

15 Fassler v. United States, 858 F.2d 1016, 1017–19 (5th Cir. 1988).

16

As another district court recently recognized, although “the issue of inmate health

17 and safety is deserving of the highest degree of attention,” an “order imposing a court-

18 ordered and court-managed ‘process’ for determining who should be released” from a state

19 prison in response to the COVID-19 pandemic falls “squarely within Section 3626(a)(3) –

20 which forbids this Court from granting it.” Money v. Pritzker, 2020 WL 1820660, at *13

21 (N.D. Ill. Apr. 10, 2020). “[T]he release of inmates requires a process that gives close

22 attention to detail, for the safety of each inmate, his or her family, and the community at

23 large demands a sensible and individualized release plan – especially during a pandemic.”

24 Id. at *1. Individual motions pursuant to the Bail Reform Act (“BRA”), under which a

25 person charged with an offense may be released or detained pending trial, 18 U.S.C.

26 § 3142(a), and which requires the court to “take into account the available information

27 concerning,” inter alia, “the history and characteristics of the person, including . . . the

28 person’s . . . physical and mental condition” in making that determination, allows judges to

20

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1 undertake that “inherently inmate-specific inquiry,” id. at *2, and are the proper legal

2 vehicle for Petitioners to attempt to obtain release due to health risks posed by the COVID-

3 19 pandemic. See, e.g., Alvarez v. Larose, 2020 WL 2315807, at *1 (S.D. Cal. May 9,

4 2020) (holding “the PLRA applies to Plaintiffs’ claims and divests the Court of authority to

5 grant” their “release”); Plata v. Newsom, 2020 WL 1908776, at *1 (N.D. Cal. Apr. 17,

6 2020) (similar). Moreover, Petitioners have all made appearances in BRA hearings, already

7 heard by other courts in this district, with one district court denying Petitioner Enos’s

8 contention that his continued pretrial confinement deprives him of adequate medical care

9 and constitutes punishment in violation the Fifth Amendment—i.e., the same claims that

10 Petitioners raise here.

11

Petitioners Have Not Established That They Are Likely to Suffer

Irreparable Harm in the Absence of Preliminary Injunctive Relief. 12

A plaintiff seeking a preliminary injunction bears the burden of demonstrating that

13

irreparable harm is likely in the absence of such relief. Herb Reed Enterprises, LLC v. Fla.

14

Entm’t Mgmt., Inc., 736 F.3d 1239, 1249 (9th Cir. 2013). “Speculative injury cannot be the

15

basis for a finding of irreparable harm,” In re Excel Innovations, Inc., 502 F.3d 1086, 1098

16

(9th Cir. 2007), rather a movant “must establish a likelihood of irreparable harm that is

17

grounded in evidence, not in conclusory or speculative allegations of harm,” Pom

18

Wonderful LLC v. Hubbard, 775 F.3d 1118, 1133 (9th Cir. 2014). As one leading

19

commentator has explained, “[p]erhaps the single most important prerequisite for the

20

issuance of a preliminary injunction is a demonstration that … the applicant is likely to

21

suffer irreparable harm” in the absence of such relief. C. Wright, A. Miller & M. Kane,

22

11A Fed. Practice and Procedure § 2948.1 (3d ed.).

23

Petitioners contend that the “risk of illness or death is not theoretical” (Dkt. 2 at 17),

24

but that is not enough. “There is no doubt that COVID-19 poses risks of harm to all

25

Americans.” Valentine, 956 F.3d 797, __. “But the question is whether Plaintiffs have

26

shown that they will suffer irreparable injuries even after accounting for the protective

27

measures in [CAFCC].” Swain, 2020 WL 2161317, at *5; Valentine, 956 F.3d 797, __.

28

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1 Petitioners do not even attempt to make that showing for them individually, instead only

2 generally asserting that everyone is at risk of infection unless they are granted relief. But

3 the relief they seek—a court-appointed expert to determine whether they are at risk or not—

4 is proof that their claims are merely speculative. Moreover, it is important to note that the

5 preliminary relief Petitioners seek is appointment of a Rule 706 expert. Petitioners will not

6 suffer irreparable harm in the event the Court denies their requested relief, which it should

7 for the reasons explained herein, including that appointing a Rule 706 expert is premature

8 at this early stage in the litigation, because Plaintiffs can renew their request a more

9 appropriate time. Nowhere in their Motion do Petitioners even attempt to explain how they

10 will suffer irreparable harm in the absence of an order appointing a Rule 706 expert. Thus,

11 they have failed to establish this factor as well. See Bean v. Pearson Educ., Inc., 2011 WL

12 1211684, at *1 (D. Ariz. Mar. 30, 2011) (citing Faiveley Transp. Malmo AB v. Wabtec

13 Corp., 559 F.3d 110, 118 (2d Cir. 2009)) (“[I]rreparable harm is the ‘single most important

14 prerequisite’ for a preliminary injunction to issue.”).

15

The Balance of Equities Does Not Favor a Preliminary Injunction, Nor

Is a Preliminary Injunction in the Public Interest. 16

Because the government is opposing the preliminary injunction, the remaining two

17

factors—balance of harms and the public interest—merge. California v. Azar, 911 F.3d

18

558, 575 (9th Cir. 2018). Both weigh sharply against an injunction.

19

Petitioners seek a preliminary injunction that is boundless in scope and will

20

effectively result in a facility czar who will dictate the government’s COVID-19 response

21

at CAFCC. It requires the immediate implementation of recommendations by an appointed

22

expert 72 hours after an order granting the injunction, weekly progress reports, and

23

completion within the timeframe set by the expert. (Dkt. 2-1.) But “[p]rison administration

24

is … a task that has been committed to the responsibility of [the legislative and executive]

25

branches, and separation of powers concerns counsel a policy of judicial restraint.” Turner

26

v. Safley, 482 U.S. 78, 85 (1987). Because of that delegation of responsibility, “judges …

27

must defer to prison officials’ expert judgments.” Norwood v. Vance, 591 F.3d 1062, 1066–

28

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1 67 (9th Cir. 2010); see also LeMaire v. Maass, 12 F.3d 1444, 1454 (9th Cir. 1993)

2 (recognizing the “limited competence of federal judges to micromanage prisons”). Indeed,

3 the Supreme Court has cautioned that “the problems that arise in the day-to-day operation

4 of a corrections facility are not susceptible of easy solutions,” and therefore prison

5 administrators “should be accorded wide-ranging deference in the adoption and execution

6 of policies and practices that in their judgment are needed to preserve internal order and

7 discipline and maintain institutional security.” Bell, 441 U.S. at 547; see also Whitley v.

8 Albers, 475 U.S. 312, 322 (1986) (noting that this deference requires “that neither judge nor

9 jury freely substitute their judgment for that of officials who have made a considered

10 choice”).

11

The preliminary injunction intrudes upon this separation of powers and tramples the

12 deference that prison officials are owed. See Alvarez, 2020 WL 2315807, at *5 (third and

13 fourth prongs not satisfied because the court “could not issue injunctive relief without

14 unfairly intruding on Defendants’ operation of the prison system”). The proposed

15 preliminary injunction also creates “an administrative nightmare” for Respondents to

16 comply with, particularly during a time in which they must remain flexible in their response

17 to this unprecedented pandemic. See Valentine, 956 F.3d at __. The burden “in terms of

18 time, expense, and administrative red tape is too great.” Id.

19 IV. The Injunctive Relief Petitioners Seek Is Not Appropriate.

20

“A preliminary injunction can only be employed for the ‘limited purpose’ of

21 maintaining the status quo.” Zepeda v. U.S. I.N.S., 753 F.2d 719, 728 n.1 (9th Cir. 1983)

22 (citing omitted). Petitioners’ motion for preliminary injunction does not seek to maintain

23 the status quo, but instead requests the appointment of a Rule 706 expert to investigate the

24 conditions at CAFCC. The Motion is improper for that reason alone. See Frohwerk v.

25 Levenhagen, 2013 WL 6839915, at *1 (N.D. Ind. Dec. 27, 2013) (“[N]either selecting a

26 Special Master nor appointing a medical expert can be properly described as an emergency

27 nor achieved via a preliminary injunction.”).

28

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1

Even outside of the preliminary relief context, “[c]ourts do not commonly appoint

2 an expert pursuant to Rule 706 and usually do so only in exceptional cases in which the

3 ordinary adversary process does not suffice or when a case presents compelling

4 circumstances warranting appointment of an expert.” Hart v. Agnos, 2008 WL 2008966, at

5 *5 (D. Ariz. Apr. 25, 2008); 29 Charles Allen Wright & Victor James Gold, Federal Practice

6 and Procedure: Evidence § 6304 (2d ed.) (“The most important factor in favor of appointing

7 an expert is that the case involves a complex or esoteric subject beyond the trier-of-fact’s

8 ability to adequately understand without expert assistance.”).

9

Here, Petitioners seek “immediate, expert assistance to implement constitutionally

10 required social distancing and hygiene practices” at CAFCC. (Dkt. 2 at 17.) Yet Petitioners

11 have made no showing that the evidence or claims are so complex that it is beyond the

12 Court’s ability to understand without the assistance of a Rule 706 expert, much less that

13 appointment of an expert is warranted as a matter of extraordinary preliminary relief.

14 Indeed, courts routinely evaluate prison conditions of confinement under the Constitution

15 without the assistance of court-appointed experts under Rule 706. See, e,g., Ledford v.

16 Sullivan, 105 F.3d 354, 358-60 (7th Cir. 1997) (upholding denial of prisoner’s motion to

17 appoint an expert in section 1983 action, regarding whether prison officials showed

18 deliberate indifference to the prisoner’s serious medical needs); Owens v. Clark, 2017 WL

19 6513214, at *2 (E.D. Cal. Dec. 20, 2017) (holding “claims of deliberate indifference . . . are

20 not so complex that the court requires a neutral expert at the summary judgment stage”);

21 Ellsworth v. Prison Health Servs., Inc., 2013 WL 6587876, at *8 (D. Ariz. Dec. 12, 2013)

22 (similar); Hart, 2008 WL 2008966 at *5 (denying motion to appoint health care expert and

23 an environmental health and safety expert to investigate prison conditions); Skylstad v.

24 Reynolds, 248 F. App’x 808, 810 (9th Cir. 2007) (in prisoner’s civil rights action for medical

25 malpractice, excessive force, deliberate indifference to medical needs, and due process

26 violations, district court did not error in declining to appoint expert because action did not

27 involve complex scientific evidence of complex issues).

28

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1

In addition, “Rule 706 does not contemplate the appointment of . . . an expert to aid

2 one of the parties.” See, e.g., Womack v. GEO Grp., Inc., 2013 WL 2422691, at *2 (D.

3 Ariz. June 3, 2013) (internal quotations omitted). Again, Petitioners here seek “expert

4 assistance” in diminishing the numerous measures Respondents have implemented in

5 response to COVID-19 and “implement[ing] constitutionally required social distancing and

6 hygiene practices” in light of those ostensible deficiencies. (See Dkt. 2 at 17.) Rule 706

7 does not contemplate the appointment of an expert for such a purpose. Moreover, even if

8 Petitioners are truly seeking a neutral expert, the appointment of a neutral expert under Rule

9 706 is not warranted at this early stage of the litigation. Respondents have not yet answered

10 the Complaint or submitted evidence on the issues raised in this case. Hence, it is

11 “premature” to decide whether appointment of a Rule 706 expert is warranted at this early

12 stage in the litigation. See, e.g., Womack, 2013 WL 2422691 at *3 (“[Because there is a

13 summary judgment motion pending on Plaintiff’s Eighth Amendment liability claim . . . it

14 premature to decide whether appointment of a medical or sleep expert is warranted on issues

15 related to causation or damages.”); Estrada v. Rowe, 2011 WL 249453, at *4–5 (N.D. Cal.

16 Jan. 25, 2011) (“[U]ntil the Court has had the opportunity to review the arguments and

17 evidence submitted by the parties . . . no determination can be made that the issues are so

18 complex as to require the testimony of an expert to assist the trier of fact.”); Wallace v.

19 Dep’t of Corr., 2019 WL 3944315, at *1 (W.D. Wash. Aug. 21, 2019); Garcia v. Wright,

20 2012 WL 2681797, at *1 (D. Colo. July 6, 2012).

21

Furthermore, Petitioners’ requested relief—which seeks (a) appointment of an

22 expert, (b) an expert report, (c) the Court’s review of that report, and then (d) an order

23 directing Respondents to implement the expert’s recommendations (Dkt. 2 at 1)—

24 forecloses any opportunity for Respondents to examine the admissibility of the Rule 706

25 expert’s report under Daubert v. Merrell Dow Pharmaceuticals or otherwise subject his or

26 her opinions to cross-examination. In other words, Petitioners’ requested relief contravenes

27 Rule 706’s established “procedural framework for nomination and selection of an expert

28 witness and for the proper performance of his role after an appointment is accepted (e.g.,

25

Case 2:20-cv-00901-DJH--DMF Document 16 Filed 05/14/20 Page 26 of 28

1 [show cause], advising the parties of his findings, submitting to depositions, being called to

2 testify, being cross-examined).” Reilly v. United States, 863 F.2d 149, 156 (1st Cir. 1988);

3 see also Ass’n of Mexican-Am. Educators v. State of California, 231 F.3d 572, 591 (9th Cir.

4 2000) (court-appointed experts must be subject to cross-examination); 29 Charles Allen

5 Wright & Victor James Gold, Federal Practice and Procedure: Evidence § 6304 (2d ed.)

6 (explaining “testimony from an expert appointed by the court under Rule 706 is treated no

7 differently under the Evidence Rules than testimony from the parties’ experts”).

8

Lastly, Petitioners’ request for preliminary relief effectively requires the Court to

9 rubber stamp the appointed expert’s findings and order Respondents to comply with those

10 recommendations. Although an expert may present recommendations, it “may not issue

11 findings of fact or conclusions of law.” Armstrong v. Brown, 768 F.3d 975, 987–88 (9th

12 Cir. 2014) see also Fed. Trade Comm’n v. Enforma Nat. Prod., Inc., 362 F.3d 1204, 1214

13 (9th Cir. 2004) (district court improperly relied on appointed expert’s findings and

14 conclusions where it stated it “was unlikely to disagree with the court-appointed expert”

15 and then immediately issued an injunction after hearing expert’s opinions); Reilly, 863 F.2d

16 at 155 (“[T]he grasp of Rule 706 is confined to court-appointed expert witnesses; the rule

17 does not embrace expert advisors or consultants.”).

18 V. 19

Conclusion. For these reasons, the Court should deny Petitioners’ Motion for Preliminary

20 Injunction. If the Court is not inclined to deny the Motion on the briefs, Respondents

21 request a hearing.

22

23 / / /

24

25 / / /

26

27 / / /

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1

Respectfully submitted this 14th day of May 2020.

2

STRUCK LOVE BOJANOWSKI & ACEDO, PLC

3

4

By /s/ Nicholas D. Acedo Daniel P. Struck

5

Rachel Love Nicholas D. Acedo

6

Jacob B. Lee 3100 West Ray Road, Suite 300

7

Chandler, Arizona 85226

8

Attorneys for Defendant-Respondent Kris Kline

9

10

MICHAEL BAILEY United States Attorney

11

District of Arizona

12

By /s/ Nicholas D. Acedo (with authority)

William Staes

13

Assistant United States Attorney

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15
3705719.1
16

Attorneys for Defendants-Respondents David Gonzales, Donald W. Washington, and Michael Carvajal

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on May 14, 2020, I electronically transmitted the attached

document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a

3 Notice of Electronic Filing to the following CM/ECF registrants:

4 Benjamin C. Calleros bcalleros@perkinscoie.com

Emma A. Andersson eandersson@aclu.org

5 Jean-Jacques Cabou

jcabou@perkinscoie.com

Margo R. Casselman mcasselman@perkinscoie.com

6 Mathew R. Koerner

mkoerner@perkinscoie.com

William Staes

William.Staes@usdoj.gov

7

I hereby certify that on this same date, I served the attached document by U.S. Mail,

8 postage prepaid, on the following, who is not a registered participant of the CM/ECF

System:

9

10 /s/ Nicholas D. Acedo
11

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Case 2:20-cv-00901-DJH--DMF Document 16-1 Filed 05/14/20 Page 1 of 3
DECLARATION OF (A) CHIEF DEPUTY UNITED STATES MARSHAL VAN D. BAYLESS
I, Van D. Bayless, Acting Chief Deputy United States Marshal ((A)CDUSM) for the District of Arizona (DIAZ), make the following statements under oath and subject to the penalty of perjury:
1. I am employed by the U.S. Department of Justice, United States Marshals Service (USMS), and currently serve as the Acting CDUSM for the USMS District of Arizona. I have been an Assistant Chief Deputy in 0/AZ since July 2018 and the Acting Chief Deputy since May 2020. I have been employed by the USMS since 2003.
2. I provide this declaration based on my personal knowledge, belief, reasonable inquiry, and information obtained from various records, systems, databases, other USMS employees, and information portals maintained and relied upon by USMS in the regular course of business.
3. The USMS houses prisoners that have been remanded to its custody by a federal judicial officer pursuant to 18 U.S.C. §3142. All named petitioners in case number 20cv-00901-DJH--DMF are either currently in a pre-trial status or a post-conviction/presentence status. Decisions regarding the appropriateness of releasing prisoners in these statuses from USMS custody remains with the U.S. District Court responsible for issuing the remand order. The USMS has no authority to grant release in these situations.
4. As the USMS does not own or maintain detention facilities, the USMS must house federal prisoners in Federal Bureau of Prisons (BOP) Pretrial facilities, in state and local detention facilities pursuant to Intergovernmental Agreements (IGA), or private jails pursuant to a contract.
5. Central Arizona Florence Correctional Complex (CAFCC) is a private jail operated by CoreCivic in Florence, Arizona.
6. The USMS holds the contract with CAFCC which also has an allotted bedspace usage rider for Immigration & Customs Enforcement Agency (ICE) to house ICE detainees. The contract was originally signed and administered by the former Office of the Federal Detention Trustee (OFDT), the federal agency that was previously responsible for administration of the federal prisoner detention fund. OFDT, however, was subsumed by the USMS pursuant to a Congressional mandate. Thereafter, the USMS assumed administration of the contract with CAFCC. The CAFCC provides the USMS bedspace for 3,420 prisoners at a fixed monthly rate. The USMS may also utilize additional beds at varying tiers of contract per diem to include overflow capacities when utilization rises over 4,944 prisoners.
7. Under the contract, CAFCC is required to provide secure custody, safekeeping, housing, subsistence, and care of USMS prisoners in accordance with all state and local laws, standards, regulations, policies, and court orders applicable to the operation of the facility. CAFCC is required to house USMS prisoners pursuant to the Federal
1

Case 2:20-cv-00901-DJH--DMF Document 16-1 Filed 05/14/20 Page 2 of 3
Performance Based Detention Standards (FPBDS), and/or any other standards delineated in the agreement. To ensure compliance with the contract terms, the USMS conducts yearly on-site Quality Assurance Reviews (QARs). Additionally, there is an on-site administrative Detention Contract Monitor to monitor daily contract compliance.
8. Medical care at CAFCC is provided by CoreCivic through the USMS private contract.
9. In March of this year, I was invited to participate in an interagency COVID-19 group. This group, set up by the Chief Judge in conjunction with the USMS, is comprised of representatives from each of the agencies that have a part in ensuring the smooth operation of the court process during the pandemic. In addition to me, the committee members are the Chief Judge of the District Court, several Magistrate Judges, the U.S. Attorney and several Assistant U.S. Attorneys, the Executive Director of Federal Defenders and several of his attorney staff, the coordinator(s) for the Panel of Defense Attorneys (CJA), the Clerk of the U.S. District Court, the Chief of U.S. Probation, the Chief of U.S. Pretrial, and the U.S. Marshal. The group meets often telephonically to discuss all aspects of the Covid-19 crisis' effect on the court, the staff of the represented offices, technical needs, scheduling needs for impacted court family, known COVID-19 positive cases and the prisoner housing facilities.
10. In addition to the telephonic meetings of the interagency group, I have nearly daily contact with the Federal Defenders of Arizona leadership and CJA Administrators. I am also in frequent contact with other members of their offices, sometimes on a daily basis. These conversations include general discussion of the changes to processes caused by COVID-19 as well as specific discussions about the status of particular defendants.
11. I have multiple staff members within my office who are assigned to liaison with defense attorneys and jail facilities. These staff members are in almost daily or daily contact with attorneys from Federal Defenders and CJA to coordinate meetings, provide updates on facility statuses, and ensure concerns the attorneys have are addressed. Many of these staff members have been working out of CAFCC to ensure quick action and response on needs from the courts, defense, or Pre-Trial/Probation as most hearings and interviews have been conducted via VTC under the CARES Act authority during the COVID-19 pandemic.
12. Each of the named petitioners in case number 20-cv-00901-DJH--DMF is represented in his/her respective criminal case by Federal Defenders/CJA of Arizona.
13. Due to the work of the interagency group, between February 25th and May 13th of this year, the overall number of prisoners in the custody of the USMS DIAZ has fallen 35%, from 5,365 down to 3,512. During the same period the population at CAFCC has fallen by 27%, from 4,184 to 3,056.
14. As of this date, 27% of the USMS prisoners housed at CAFCC do not share a cell. In its current configuration, the average population level of each housing unit at CAFCC
2

Case 2:20-cv-00901-DJH--DMF Document 16-1 Filed 05/14/20 Page 3 of 3

\\'ith USMS prisoners is approximate ly 69.5% of its capacity. with the lowest unit at 25% or capac ity.
I declare. under penalty of perjury under 28 U.S.C. § 1746. that the fo rego ing is true and correct to the best or my knowledge.

Dated: May 13. 2020

Yan D. Bayless (A) Chief Deputy U.S. Marshal Distri ct of Ari zona United States Marshals Service

3

Case 2:20-cv-00901-DJH--DMF Document 16-2 Filed 05/14/20 Page 1 of 17

1

DECLARATION OF K. IVENS, M.D., F.A.C.C.P.

2

I, K. IVENS, M.D., make the following Declaration:

3

1. I am over the age of 18 years and competent to testify to the matters set

4 forth in this Declaration.

5

2. I have personal knowledge of the facts set forth in this Declaration, and

6 if called as a witness, could testify competently thereto.

7

3. I am a Medical Doctor, and am currently licensed to practice medicine

8 in Tennessee, Arizona, California, Indiana, Michigan, Mississippi, Colorado,

9 Kansas, Montana, Wyoming, New Jersey, Ohio, New Mexico, and Oklahoma.

10

4. I hold an undergraduate degree from Michigan State University in

11 Physiology. I performed my graduate studies at Howard University, Department of

12 Anatomy, in cell and molecular biology. My main focus was working as a biochemist

13 developing antibodies for research in different disease states. I received my medical

14 degree from Stanford University School of Medicine. I did my surgical residency at

15 the University of Southern California from 1992-1995.

16

5. I am past President of the American College of Correctional Physicians

17 and am on the Board of Trustees of the National Commission of Correctional Health

18 Care. I am on the Board of Directors of the Correctional Medical Institute, the

19 Academy of Correctional Healthcare Professionals, and the American Telemedicine

20 Association. I am a Fellow of the American College of Correctional Physicians.

21

6. I have been actively providing health care to inmates and detainees in

22 jails, prisons, and detention facilities since 1995. I have held such positions as

23 Medical Director for the Indiana Department of Corrections; Western Regional

24 Medical Director for Prison Health Services, providing health care at Alameda

25 County Jail; and East Coast Medical Director for Prison Health Services in the

26 Delaware Department of Corrections. See Curriculum Vitae of K. Ivens, M.D.,

27 attached hereto as Attachment 1.

28

Case 2:20-cv-00901-DJH--DMF Document 16-2 Filed 05/14/20 Page 2 of 17

1

7. I have been employed by CoreCivic, Inc. since 2007. I have provided

2 health care to inmates and detainees at Central Arizona Florence Correctional

3 Complex (“CAFCC”) on and off since 2007 and am very familiar with the facility.

4

8. From 2007–2014, I served as CoreCivic’s Regional Medical Director,

5 overseeing the provision of medical care to the detainee and prisoner populations at

6 several CoreCivic facilities, including CAFCC.

7

9. I am currently the Chief Medical Officer (“CMO”) for CoreCivic, a

8 position I have held since 2014. As CMO, I oversee the medical services at 71 jail,

9 detention, correctional, and re-entry facilities throughout the United States, including

10 CAFCC.

11

10. As the CMO for CoreCivic, I am familiar with the appropriate methods

12 to treat and contain contagious illness in a detention setting, including tuberculosis,

13 influenza, mumps, measles, varicella, scabies, and COVID-19.

14

11. Since the outbreak of COVID-19, I have been working closely with

15 infectious disease specialists and correctional medical professionals on the most up-

16 to-date protocols and practices to prevent the spread of this illness in the jails,

17 detention centers and correctional facilities owned and/or operated by CoreCivic.

18 This also includes monitoring updates and information from the Centers for Disease

19 Control and Prevention (“CDC”), which updates statistical information on a daily

20 basis and promulgates appropriate protocols for managing this illness in a detention

21 setting, such as CAFCC. I monitor the CDC information on a daily basis.

22

12. I am responsible for ensuring the overall practices and procedures at the

23 Medical Units in facilities where CoreCivic provides health care are in compliance

24 with evolving CDC guidelines and recommendations, including intake screening,

25 quarantine, isolation, cohorting measures, personal protection equipment (“PPE”),

26 COVID-19 testing, and treatment of the virus should any detainee at the facility test

27 positive.

28

2

Case 2:20-cv-00901-DJH--DMF Document 16-2 Filed 05/14/20 Page 3 of 17

1

13. I am familiar with the protocols in place at CAFCC to reduce exposure

2 of COVID-19 to the detainee population and staff. In my opinion, in conjunction with

3 the CDC’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-

4 19) in Correctional and Detention Facilities, CAFCC has taken ample and

5 appropriate steps to reduce COVID-19 exposure and infection for the detainee or

6 staff population.

7

14. All incoming detainees at CAFCC are screened for multiple

8 communicable diseases including, but not limited to, COVID-19, at the time of their

9 arrival at the facility prior to booking. Screening protocols comport with the CDC

10 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in

11 Correctional and Detention Facilities (“Interim Guidance”), and have been updated

12 based upon evolving CDC recommendations.

13

15. Staff are also screened upon arrival at the facility for each shift, and staff

14 who do not pass the verbal screening and temperature checks are not permitted to

15 enter the facility. I am unaware of any research which supports requiring more

16 frequent than daily screening of correctional and detention personnel. All employees

17 are required to wear masks in the facility.

18

16. If an employee tests positive for COVID-19, CAFCC performs contact

19 tracing by tracking the employee’s contacts within the facility during the 48 hours

20 prior to showing signs of the virus. Additionally, the infected employee will be

21 required to quarantine themselves for at least 14 days before returning to work. This

22 requirement is in addition to the three standards – fever free for 72 hours,

23 improvement of other symptoms and the passage of at least 7 days since onset of

24 symptoms – set forth by the CDC and Pinal County Health Department. The contract

25 tracing performed by the facility exceeds the CDC Interim Guidance

26 recommendations.

27

17. Joe Goldenson, M.D.’s criticism of contact tracing in a prison or

28 detention facility is not well taken. Indeed, the contact tracing performed at CAFCC

3

Case 2:20-cv-00901-DJH--DMF Document 16-2 Filed 05/14/20 Page 4 of 17

1 is detailed and effective, as the facility is equipped with MileStone digital security

2 cameras, which make it easy to track an employee after a positive test by reviewing

3 who he or she may have been in close contact with prior to the onset of symptoms.

4 This is much more difficult to accomplish in the free world and is far more effective

5 than contact tracing performed outside a detention setting. Dr. Goldenson’s opinion

6 is likely flawed because he has no knowledge as to the tracking capabilities within

7 CAFCC. Moreover, he is incorrect in his assumption that contact tracing is being

8 used “in lieu of social distancing.” The facility has taken numerous steps to ensure

9 social distancing, through reduction of the population, to continually educating the

10 detainee population, to restricting detainees from bunching together during meals and

11 recreation. Moreover, his opinion that “constant widespread testing” is the only way

12 to determine sources of infection is incorrect, and is not suggested as a part of the

13 CDC guidelines.

14

18. In addition, I understand that the USMS population at CAFCC has

15 remained far below the available capacity of the housing units, permitting ample

16 social distancing should detainees choose to comply with recommendations to do so.

17 Indeed, the facility is currently operating at 62% capacity.

18

19. All detainees are instructed on CDC guidelines to prevent transmission

19 of COVID-19, including the importance of frequent hand washing, covering coughs,

20 and not touching the face. All detainees were provided with masks on April 13, 2020

21 and receive masks when requested if theirs becomes dirty, torn, or lost. Additionally,

22 detainees are no longer being transported to federal court to prevent potential spread

23 of the virus. While non-quarantined detainees may meet with their attorneys in person,

24 videoconferencing options are available. Additionally, effective March 12, 2020,

25 CAFCC suspended all social visits in order to limit spread of the virus.

26

20. CAFCC cohorts/quarantines pods from which a COVID-19 positive test

27 derived for a period of at least 14 days from the last date a positive detainee was

28 living in a pod. Cohorting is a widely recognized best practice in correctional

4

Case 2:20-cv-00901-DJH--DMF Document 16-2 Filed 05/14/20 Page 5 of 17

1 healthcare, to limit the spread of infectious diseases across different housing units of

2 a facility, but restricting the off-unit contacts of detainees in a particular housing unit,

3 and cohorting in this sense is recommended as part of the CDC Interim Guidance.

4

21. CAFCC has done a remarkable job at preventing the spread of COVID-

5 19 into the general population of the facility. As of May 12, 2020, not one general

6 population detainee has tested positive for COVID-19. Of the 13 detainees who

7 tested positive, all were diagnosed upon entry into the facility. The facility

8 quarantines all newly admitted detainees for 14 days, checking them daily for signs

9 and symptoms of the virus. If, after 14 days, they clear symptoms and temperature

10 checks, they are allowed to transfer to the general population. It was during this

11 initial intake process that these 13 detainees tested positive, indicating that they

12 arrived at the facility already infected.

13

22. Contrary to Dr. Goldenson’s “understanding,” once a detainee tests

14 positive for COVID-19, they are immediately transferred, via the exterior of the

15 building, to J pod, a quarantine cohort for those testing positive. They are continually

16 monitored and treated by medical staff, until they are medically cleared to leave the

17 unit. Any staff entering that unit is fully suited up in protective equipment, including

18 a full barrier jump suit, gloves, booties, N-95 masks and plastic shields. All

19 equipment is removed, sanitized and dried after leaving the unit from one exit

20 dedicated to exiting J pod. Detainees with confirmed and unconfirmed COVID-19

21 infections are not housed together.

22

23. All meals, medical, recreation, and programming services are provided

23 to these detainees on-unit, further protecting against the risk of exposure and

24 infection. In addition, all detainees in a cohort units only attend recreation with

25 detainees in the same cohort. These practices, specifically restrictions on recreation,

26 on-unit satellite feeding, and on-unit medical care, are CDC recommended social

27 distancing guidelines contained in the Interim Guidance.

28

5

Case 2:20-cv-00901-DJH--DMF Document 16-2 Filed 05/14/20 Page 6 of 17

1

24. I have reviewed the declarations attached to Plaintiff-Petitioners’ Class

2 Action Complaint and Petition for Writ of Habeas Corpus, specifically those of Joe

3 Goldenson, MD. Based upon my review of his declaration, it is clear that he has never

4 been to CAFCC, and is providing testimony based on inaccurate information relating

5 to the manner in which CAFCC is implementing protocols to manage the spread of

6 COVID-19 within the facility. For example, he ignores the fact that the detainee

7 population at the facility is less than 62% of its capacity and the intake of new

8 detainees has been substantially reduced. Most of the protocols listed by Dr.

9 Goldenson have been instituted at CAFCC.

10

25. In addition, the Petitioner declarants provide inaccurate information in

11 their declarations. For example, all detainees at CAFCC have access to unlimited

12 supplies of soap and disinfecting solution to clean their housing areas.

13

26. Dr. Goldenson suggest that detainees over the age of 50 or with an

14 expansive list of medical conditions be deemed medically vulnerable. The age group

15 of 50 to 64, however, without an underlying medical condition that might put them

16 at risk, is not at heightened risk of serious illness or death from COVID-19. The

17 CDC has identified people over the age of 65, or people with certain underlying

18 medical conditions, particularly if not controlled, as being at higher risk. Goldenson

19 fails to support his opinion that the CDC’s recommendation of medically vulnerable

20 should be expanded with any scientific analysis or data.

21

27. Indeed, CDC statistics clearly show that the overwhelming number of

22 deaths from COVID-19 occur in those over the age of 65. CDC data as of May 13,

23 2020 shows that 80% of all deaths involving COVID-19 occurred in individuals over

24 the age of 65; only 5% of COVID deaths occurred within the 45-54 age group, while

25 12.25% of COVID deaths occurred within the 55-64 age group—a far greater rate.

26 See https://www.cdc.gov/nchs/nvss/vsrr/COVID19/. Moreover, deaths from all

27 causes in the 45-54 age group mirrored the COVID-19 percentage at 5.3%,

28

6

Case 2:20-cv-00901-DJH--DMF Document 16-2 Filed 05/14/20 Page 7 of 17

1 suggesting that COVID-19 was no more significant a factor in deaths of this age

2 group than any other cause of death.

3

28. I am aware of the release of another study, “Characteristics and Clinical

4 Outcomes of Adult Patients Hospitalized with COVID-19 – Georgia, March 2020”,

5 https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6918e1-H.pdf. This study was

6 limited to a selection of 305 of 698 patients hospitalized between March 1 and March

7 30, 2020 at only eight hospitals in Georgia, with laboratory-confirmed COVID-19.

8 The study reports that 95.5% and 83.8% of those patients studied between the ages

9 of 18-49 and 50-64 respectively, were discharged from the hospital, it does not

10 differentiate between those with and without one or more underlying high-risk

11 conditions.

12

29. Due in large part to developing diagnostic criteria, and lack of

13 widespread testing, data reflecting the rate of hospitalization or death, based upon

14 earlier reported studies are less likely to be reliable. The most-recent data reported

15 by the CDC, for the week ending May 2, 2020, is an overall cumulative

16 hospitalization rate of 29.2 per 100,000 population. When adjusting for age, the

17 highest rate for adults aged 65 of higher (162.2 per 100,000 population), followed by

18 adults aged 50-64 years (79 per 100,000), and then adults aged 18-49 years (26.2 per

19 100,000). See https://gis.cdc.gov/grasp/covidnet/COVID19_3.html.

20

30. These results do not differentiate among those with and without

21 underlying medical conditions. Of all 1,393 reported laboratory-confirmed COVID-

22 19 related hospitalizations, where information on underlying medical conditions was

23 available, only 9.8% of those hospitalized did not have a history of any underlying

24 medical condition. On the other hand, the most commonly reported underlying

25 conditions were hypertension (55.7%); obesity (51.8%); chronic metabolic disease

26 (40.7%); cardiovascular disease (32.2%); chronic lung disease (20.2%); neurologic

27 disease (17.9%); renal disease (14.4%); asthma (13.3%); immune suppression

28 (9.9%); gastrointestinal/liver disease (4.8%); other disease (3.8%); and, autoimmune

7

Case 2:20-cv-00901-DJH--DMF Document 16-2 Filed 05/14/20 Page 8 of 17

1 disease (3.1%). See https://www.cdc.gov/coronavirus/2019-ncov/covid-data/pdf/

2 covidview-04-24-2020.pdf at 9.

3

31. While the data continues to improve with time, there are several key

4 conclusions which can reliably be drawn from the most recent CDC data. First, the

5 fact that the major CDC reports only use three broad adult age ranges, 18-49, 50-64,

6 and 65+, reflects the expert opinion that there is no basis to differentiate ages less

7 than 65 as being at higher risk for COVID-19 infection. Second, absent a specific

8 underlying medical condition, there is no reliable scientific basis to conclude that age

9 alone, is a relevant factor for those under the age of 65.

10

32. Further, the context of the data is relevant. These studies are based upon

11 infection and hospitalization rates among those studied. However, data as of April

12 29, 2020 reflects 1,005,147 cases of COVID-19 in the United States. See

13 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-

14 us.html#accordion-1-collapse-3. However, even here, the CDC cautions that the data

15 is not reliable, and that “COVID-19 can cause mild illness, symptoms might not

16 appear immediately, there are delays in reporting and testing, not everyone who is

17 infected gets tested or seeks medical care” which implies than any effort to calculate

18 mortality or hospitalization rates are and will continue to be significantly overstated

19 until widespread testing is implemented.

20

33. In addition, Dr. Goldenson, without citation, cites a range of estimated

21 case mortality rates, as high as 3.5%. The 3.5% rate most likely is related to the early

22 March 2020 WHO estimate, which has been widely criticized as being overstated.

23 See, e.g., https://www.medicalnewstoday.com/articles/why-are-covid-19-death-

24 rates-so-hard-to-calculate-experts-weigh-in. Mortality rates cannot be accurately

25 determined, until there is an accurate report of the number of people infected with

26 COVID-19. While serologic COVID-19 antibody testing in the U.S. has only

27 recently begun, and the results are not peer reviewed and may be subject to such

28 flaws, the preliminary conclusion of those studies is that mortality rates are likely

8

Case 2:20-cv-00901-DJH--DMF Document 16-2 Filed 05/14/20 Page 9 of 17

1 skewed upwards. See, e.g., https://www.livescience.com/coronavirus-antibodies-

2 widespread-in-santa-clara.html and https://news.usc.edu/168987/antibody-testing-

3 results-covid-19-infections-los-angeles-county/.

4

34. Further, while I agree with Dr. Goldenson that statistics reflecting the

5 number of COVID-19 infected persons are “likely underestimates because of limited

6 availability of testing” (paragraph 13), there is no basis of which I am aware for

7 applying that fact to draw the conclusion that the number of deaths attributable to

8 COVID-19 is underestimated.

9

35. Similarly, the lack of widespread testing renders estimates of the

10 hospitalization rate highly suspect. While the number of hospitalized confirmed and

11 presumed COVID-19 hospitalizations is not subject to being underestimated, the

12 number of the population at large infected with COVID-19 is.

13

36. In my opinion, based upon my experience in dealing with contagious

14 diseases, my experience with the COVID-19 pandemic and my review of COVID-

15 19 information available to practitioners, such as CDC statistics, only those over the

16 age of 65 or those with certain chronic underlying conditions should be considered

17 at risk of serious illness or death should they contract this virus.

18

37. It is also my opinion, however, that the COVID-19 protocol and

19 practices at CAFCC are within the standard of care and exceed CDC Interim

20 Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional

21 and Detention Facilities and that the Petitioners and other medically vulnerable

22 detainees are not at serious risk of contracting COVID-19 due to the reasonable steps

23 being taken by CAFCC to control the spread of this virus.

24

25 / / /

26

27 / / /

28

9

Case 2:20-cv-00901-DJH--DMF Document 16-2 Filed 05/14/20 Page 10 of 17 10

Case 2:20-cv-00901-DJH--DMF Document 16-2 Filed 05/14/20 Page 11 of 17
ATTACHMENT 1 Declaration of K. Ivens, MD

Case 2:20-cv-00901-DJH--DMF Document 16-2 Filed 05/14/20 Page 12 of 17

Curriculum Vitae

Keith W. Ivens, MD, ACCP

____________________________________________________

Position

Chief Medical Officer, CoreCivic President, Correctional Medicine Associates, PC

Office Address

5501 Virginia Way Brentwood, TN 37207 (615) 263-3277 Keith.Ivens@corecivic.com

Medical Licenses

California Indiana Tennessee Mississippi Michigan Arizona Oklahoma Colorado Kansas New Mexico Montana Ohio Wyoming New Jersey

G079310 01044224-A MD36733 18235 4301085294 37806 28157 DR-0054698 04-37944 MD2015-0757 55170 35.132516 12303A
25MA10747600

DEA numbers

BI-4277744 XI-4277744 FI8544264 FI8599411

(Buprenorphine Provider)

Education

Medical 1987 – 1992

Stanford University School of Medicine Stanford, California MD 1992

Graduate 1985 – 1987

Howard University Department of Anatomy Washington, DC No degree awarded

Internship and Residency

Undergraduate 1979 – 1985
1992 –1995

Michigan State University East Lansing, Michigan BS – Physiology, 1983
Los Angeles County-USC Medical Center Department of Surgery Los Angeles, California

CORECIVIC-MLG000001

Case 2:20-cv-00901-DJH--DMF Document 16-2 Filed 05/14/20 Page 13 of 17 Page 2 – CV - Ivens

Professional Organizations

President – American Coll. of Correctional Physicians (2017-2019) Board of Trustees – NCCHC (Appointment starts in 2020) Delegate Assembly - American Correctional Association American Correctional Association – Health Care Committee Board of Directors – Correctional Medical Institute Academy of Correctional Healthcare Professionals American Telemedicine Association

Fellowship

Fellow – American College of Correctional Physicians

Professional Experience

September 2014 – Present

Nashville, TN

Chief Medical Officer

Corrections Corporation of America (Now CoreCivic)

Oversee the medical services at 60+ correctional facilities (>50,000 patient inmates) in 17

states plus the District of Columbia

Chair, Morbidity and Mortality Committee

Chair, Professional Practice Executive Committee

Chair, Pharmacy and Therapeutics Committee

Chair, Peer Review Committee

Chair, Telehealth Steering Committee

Member, Medical Risk Management Committee

Participate in budgeting, cost control, partner relations, contract negotiation, policy

development, and corporate medical responses

September 2014 – Present

Nashville, TN

President/Owner

Correctional Medicine Associates, PC

Oversee PC member hiring, benefits, retention, and discipline of >150 physicians, nurse

practitioners, physician assistants, and mental health professionals.

Supervise Deputy CMO and Regional Medical Directors in utilization management and quality

of care issues

Perform staff development in the way of articles, conferences, conference calls, and onsite

meetings to improve quality health care

Dec 2007 – September 2014 Regional Medical Director Corrections Corporation of America Direct patient care in Arizona, Oklahoma, California and Mississippi Oversee the medical services at several CCA Facilities in California, Arizona, Tennessee, Mississippi, Oklahoma, Colorado, New Mexico, and Montana including Utilization review, Non – formulary Medication authorization and Case Care Review.

Florence, AZ

Jan 2009 – November 2011 President and Chief Financial Officer Correctional Medicine Associates of California

California City, CA

CORECIVIC-MLG000002

Case 2:20-cv-00901-DJH--DMF Document 16-2 Filed 05/14/20 Page 14 of 17 Page 3 – CV - Ivens

Professional Experience
(Continued)

Sep 2011 – Present Telehealth Medical Staff Provide telehealth services in AZ, OK, KS, NM, TN and MS Corrections Corporation of America

February 2005 – Dec 2007 Regional Medical Director Correctional Medical Services, Inc. Michigan Regional Office – CMS

June 2003 – Feb 2005 Regional Medical Director and Consultant Surgeon Correctional Medical Services, Inc. MS Regional Office

July 2002 – May 2003 Regional Medical Director and Consultant Surgeon Lois DeBerry Special Needs Facility and Tennessee Regional Office Correctional Medical Services, Inc.
July 2000 – June 2002 Regional Medical Director and Consultant Surgeon Correctional Medical Services, Inc. DE Regional Office

August 1998 – June 2000 Regional Medical Director and Consultant Surgeon Prison Health Services, Inc. DE Regional Office – PHS
May 1998 – Aug 1998 Interim Regional Medical Director Prison Health Services, Inc. Indiana Regional Office – PHS

May 1997-May 1998 Assistant Regional Medical Director Prison Health Services, Inc. Alameda County Jails
August 1995 – May 1997 Medical Director Plainfield Correctional Facility Indiana Department of Correction

Florence, AZ East Lansing, MI
Jackson, MS Nashville, TN New Castle, DE Newark, DE Indianapolis, IN Alameda, CA
Plainfield, IN

CORECIVIC-MLG000003

Case 2:20-cv-00901-DJH--DMF Document 16-2 Filed 05/14/20 Page 15 of 17 Page 4 – CV - Ivens

August 1995 – May 1997 Medical Director Reception and Diagnostic Center
Indiana Department of Correction
August 1995 – May 1997 Medical Director Putnamville Correctional Facility
Indiana Department of Correction

Plainfield, IN Putnamville, IN

Publications Ivens, K., CorrDocs, President's Column, Volume 22, Issue 4, Fall 2019
Ivens, K., CorrDocs, President's Column, Volume 22, Issue 3, Summer 2019
Ivens, K., CorrDocs, President's Column, Volume 22, Issue 1 Spring 2019
Ivens, K., CorrDocs, President's Column, Volume 21, Issue 4, Winter 2018
Ivens, K., CorrDocs, President's Column, Volume 21, Issue 3, Fall 2018
Ivens, K., CorrDocs, President's Column, Volume 21, Issue 2, Summer 2018
Ivens, K., CorrDocs, President's Column, Volume 21, Issue 1, Spring 2018
Ivens, K., CorrDocs, President's Column, Volume 20, Issue 4, Winter 2017
Ivens K., Gazzano, H., O’Hanley, P., and Waldman, S.A. Heterogenicity of Intestinal Receptors for Escherichia coli Heat-Stable Enterotoxin. Infection and Immunity, 58 (6), 1990: pp1817-20.
Flavin, T., Shizuru, J., Seydel, K., Wu, A., Fujimoto, N., Hoyt, E.G., Ivens, K., Billingham, M., Fathman, C.G., and Starnes, V. A. Selective T-cell Depletion with Ox-38 Anti CD-4 Monoclonal Antibody Prevent Cardiac Allograft Rejection in Rats. Journal of Heart Transplantation. 9 (5), 1990: pp482-488.
Flavin, T., Ivens, K., Rothelin, R., Faanes, R., Cayberger, C., Billingham, M., and Starnes, V.A. Monoclonal Antibodies Against Intercellular Adhesion Molecule 1 Prolong Cardiac Allograft Survival in Cynomolgus Monkeys. Transplant Proceedings. 23 (1), February, 1991: pp533-534.
Falvin, T., Ivens, K., Wang, J., Gutierrez, J., Hoyt, E.G., Billingham, M., and Morris, R.E. Initial Experience with FK506 as an immunosuppresant for Nonhuman Primate Recipients of Cardiac Allografts. Transplant Proceedings. 23 (1) February, 1991: pp531-532.
Starnes, V.A., Griffin, M., Pitlick, P., Bernstein, D., Baum, D., Ivens, K., and Shumway, N.E. Current Approach to Hypoplastic Left Heart Syndrome: Palliation, Transplant or Both? Journal of Cardiovascular and Thoracic Surgery, November, 1992.

CORECIVIC-MLG000004

Case 2:20-cv-00901-DJH--DMF Document 16-2 Filed 05/14/20 Page 16 of 17 Page 5 – CV - Ivens
Chen, R., Ivens, K., Griffith, G., Shizuru, J. Starnes, V.A., and Weissman, I. Granzyme, A. Expression as a Test of Early Detection of Rat Heart Allograft rejection. Published in 1993.
Ivens, K., Lymphangioleiomyomatosis. Chapter in Fifty Mores Diseases, Fifty More Diagnoses. Edited by M. Perlroth and D. Weiland. Chapter submitted for publication. 1992.
Ivens, K., Herfkins. R., Bergen, C., Billingham, M., Berry, G., Starnes, V.A., and Shumway, N.E. Twelve Year Follow-up Studies After Combined Heart-Lung Transplantation in a Rhesus Monkey.

Teaching Experience

JOHNS HOPKINS UNIVERSITY August 2001 - 2006 Faculty-Correctional Medical Institute, Baltimore, MD Suturing and Surgical issues in a correctional setting – Lecture and workshop. Presented in 2001 through 2006. Chronic wound Management – Presented in September 2007

2005 - 2010
Organizing Committee-Correctional Medical Institute, Baltimore MD
On the committee that arranges the annual CMI conference. We select date of the conference, location, topics, faculty, advertisement, corporate and foundation sponsorship.

2007 – 2010 President -Correctional Medical Institute, Baltimore MD Elected to lead CMI after the September 2007 conference.

STANFORD UNIVERSITY Lecturer-Pathophysiology
Fall – 1988, Fall – 1989, Fall – 1990, Fall – 1991, Fall – 1992, Fall – 1993

Presentations

August 2018 – American Correctional Association Summer Conference, Minneapolis, MN, Moderator – Cancer Care Behind Bars
May 2014 – National Corrections Institute Meeting in Denver, CO – Remote Presentation on Telehealth in Corrections with Marc Stern, MD

May 2014 – National Corrections Institute Meeting in Denver, CO – Remote Presentation on Telehealth in Corrections with Marc Stern, MD

NCCHC and ACHSA National Conferences I have made presentations in the following correctional topics: -Sleep Hygiene -The use of bedside Troponin testing in the Assessment of Chest Pain -Traumatic Wound Care

CORECIVIC-MLG000005

Case 2:20-cv-00901-DJH--DMF Document 16-2 Filed 05/14/20 Page 17 of 17 Page 6 – CV - Ivens
Society of Correctional Physicians Annual Meetings
Several presentations on surgical issues, including laceration care and I&D of Abscesses. Most recently, October 2012 in Las Vegas, but others at conferences in Anaheim, CA; Nashville, TN; Saint Louis, MO; and Baltimore, MD.
CORECIVIC-MLG000006

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 1 of 27

1

DECLARATION OF WARDEN K. KLINE

2

I, K. Kline, make the following Declaration:

3

1. I am over the age of 18 years and competent to testify to the matters set forth

4 in this Declaration. I make this Declaration in support of Defendants’ Opposition to

5 Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction based on

6 my own personal knowledge and my review of the relevant documents as maintained by

7 CoreCivic in the usual course of business.

8

2. I am currently the Warden of CoreCivic’s Central Arizona Florence

9 Correctional Complex (“CAFCC”), located in Florence, Arizona, a position I have held

10 since August 2016.1 Prior to that, I was the Warden of CoreCivic’s Kit Carson Correctional

11 Center, located in Burlington, Colorado, for two years.

12

3. I have been in corrections for over 20 years, having started as a Correctional

13 Officer at CoreCivic’s Bay Correctional Facility, located Panama City, Florida, in February

14 2000.

15

4. All document exhibits attached to this Declaration are true and accurate

16 copies of documents generated and/or maintained in the normal course of CAFCC’s

17 business operations.

18

5. All photos attached to this Declaration fairly and accurately depict the subject

19 matter shown in the photos, as that subject matter existed on May 13, 2020.

20

CAFCC Design and Population

21

6. CAFCC is owned and operated by CoreCivic, Inc. (“CoreCivic”). CAFCC

22 was formerly two facilities—Central Arizona Detention Center (“CADC”) and Florence

23 Correctional Center (“FCC”)—both owned and operated by CoreCivic, and located in close

24 proximity to each other in Florence, Arizona. The two facilities were administratively

25

26

1 CAFCC was formerly two facilities—Central Arizona Detention Center (“CADC”)

and Florence Correctional Center (“FCC”)—both owned and operated by CoreCivic. The 27 two facilities were administratively combined into CAFCC in 2017. I was the Warden of

28 FCC when the facilities were combined.

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 2 of 27

1 combined into CAFCC in 2017. Internally, the former CADC is referred to as CAFCC East,

2 and the former FCC is referred to as CAFCC West.

3

7. CoreCivic provides immigration and criminal detention services for U.S.

4 Immigration and Customs Enforcement (“ICE”), the United States Marshals Service

5 (“USMS”), and the City of Mesa (“Mesa”) pursuant to detention service contracts with

6 those entities. CoreCivic provides healthcare services to CAFCC’s detainee population.

7

8. Neither I, as Warden of CAFCC, nor CoreCivic, determine which USMS

8 detainees are assigned to CAFCC, or for how long. Rather, such assignments, as well as

9 transfer and release determinations, are made by USMS and/or the federal courts.

10

9. CAFCC has a total design capacity of 5,003 detainees, with capacity for 3,110

11 USMS detainees. CAFCC operates 15 housing units of varying layouts and designs,

12 including traditional two-person cells and larger cells housing 14-16 detainees.

13

10. CAFCC operates two receiving and discharge units (one in East, and one in

14 West), eight medical units (four medical departments (one in East and three in West), three

15 satellite medical units (two in East and one in West), and one infirmary (West)), 15 laundry

16 facilities (one in each housing unit, with two commercial washers and two commercial

17 dryers in each one), four kitchens (three food production kitchens (one in East and two in

18 West) and one dish room kitchen (West)), two commissaries (one in East, one in West), one

19 chapel (located in East, with chapel services in West conducted in multi-purpose rooms),2

20 three libraries (two in East, one in West), 14 recreation yards (five in East, nine in West),

21 social and legal visitation facilities, warehouse, and maintenance department.

22

11. The medical units can house up to 29 detainees—17 in the medical units and

23 12 in the infirmary. CAFCC has five negative pressure rooms, none of which are currently

24 in use, and has access to two additional negative pressure rooms at CoreCivic’s Saguaro

25 Correctional Center, located in Eloy, Arizona, as overflow units.

26

27

2 Religious services in groups are not currently being held due to social distancing

28 rules.

2

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 3 of 27

1

12. USMS, ICE, and Mesa detainees (as well as male and female detainees) are

2 housed separately and do not intermix with other populations in housing, programming,

3 recreation, meal services, facility movement, etc., except in special circumstances. For

4 example, detainees of two or more jurisdictions may be housed in the Restrictive Housing

5 Unit (“RHU”) at the same time, but they are not housed in the same cells, and

6 movement/activity is restricted such that detainees from the different jurisdictions do not

7 have contact with or access to each other. Additionally, detainees of two or more

8 jurisdictions who have demonstrated symptoms of COVID-19 may be housed in one of

9 CAFCC’s quarantine units—J Pod, Lima Unit, or Delta Unit—but again,

10 movement/activity is restricted such that detainees from the different jurisdictions do not

11 have contact with or access to each other.

12

13. As of May 13, 2020, CAFCC was operating at 62% of its design capacity,

13 with 3,090 total detainees and 3,045 USMS detainees.

14

14. New intakes have decreased since March 19, 2020 from an average of

15 approximately 100 detainees per day to approximately five detainees per day. During that

16 same timeframe, the total detainee population has decreased by approximately 1,300

17 detainees.

18

COVID-19 Test Data

19

15. As of May 13, 2020, 15 USMS detainees tested positive for COVID-19 at

20 CAFCC; seven detainees tested negative, and two were pending results. No ICE or Mesa

21 detainees have tested positive. The first positive detainee was identified on May 1, 2020.

22

16. Prior to May 13, 2020, no COVID-19-positive detainees at CAFCC had

23 contracted the virus from the general population—all cases of COVID-19 at CAFCC came

24 from new intakes, and were identified during the 14-day quarantine period all new intakes

25 are subject to when they arrive at CAFCC, as described more fully below.

26

17. On May 12, 2020, a general population detainee in Golf Delta Pod presented

27 with a fever, and was taken to J Pod to quarantine, where he was tested for COVID-19. His

28

3

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 4 of 27

1 test came back positive on May 13, 2020, at which point Golf Delta Pod was placed in

2 quarantine status.

3

18. No CAFCC detainees have been hospitalized due to COVID-19, and none

4 have died due to COVID-19.

5

19. As of May 13, 2020, CAFCC employed 923 staff members, only nine of

6 whom have tested positive for COVID-19. Two of those nine have fully recovered and are

7 back to work.

8

CAFCC/CoreCivic COVID-19 Response Coordination

9

20. CoreCivic recognizes the unique and exceptional nature of the current

10 COVID-19 pandemic, and takes seriously its responsibility to protect the safety and security

11 of the detainees in its facilities, its staff, its contractors’ employees, its governmental

12 partners’ employees, and the public in general.

13

21. CoreCivic’s Facility Support Center (“FSC”), located in Brentwood,

14 Tennessee, has developed company-wide protocols in response to COVID-19, which are

15 implemented at the facility level based on each facility’s unique detainee population,

16 physical plant, and safety and security concerns. FSC is providing ongoing guidance and

17 instruction to its facilities, consistent with recommendations of the Centers for Disease

18 Control and Prevention (“CDC”) and CoreCivic’s governmental partners, as well as state

19 and local health authorities where its facilities are located. As additional recommendations

20 are made in consideration of localized health conditions, practices to prevent the spread of

21 COVID-19 at CAFCC have evolved, with changes occurring sometimes on a daily basis.

22

22. FSC has also activated its Emergency Operations Center, which allows for

23 effective communication and guidance to all CoreCivic facilities in a timely manner as to

24 daily developments regarding COVID-19 information, CDC guidance, and developing

25 operational modifications and enhancements.

26

23. Each day and based upon need, CoreCivic facility administrators with a first

27 COVID-19 positive test or significant change in circumstances participate in a conference

28 call with CoreCivic’s Emergency Operations Center to review current and new protocols,

4

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 5 of 27

1 receive CDC updates, and discuss additional concerns and requests. CoreCivic facility

2 leaders also participate in a call three times a week to discuss new protocols, receive CDC

3 updates, and discuss additional concerns and requests related to COVID-19 response.

4 Further, all CoreCivic facility administrators have access to an intranet SharePoint site

5 containing all company-wide information, communications, and updated protocols related

6 to COVID-19.

7

24. CAFCC has its own daily briefing with facility leadership and designated

8 supervisory staff to discuss daily issues and assign tasks associated with COVID-19

9 operational responses. Facility leadership is tasked with speaking to staff and detainees

10 about precaution requirements; encouraging staff and detainees to seek medical care if they

11 feel ill or show signs of illness; monitoring staff and detainees for signs of illness; engaging

12 in ongoing efforts with staff and detainees to promote cleanliness and social distancing;

13 verifying ample supplies of appropriate materials; and conducting sanitation inspections on

14 a daily basis in their delegated areas of responsibility. CAFCC’s COVID-19 Sanitation

15 Schedule and Protocols further guide daily responsibilities to ensure the facility is properly

16 and regularly cleaned and sanitized. (Memorandum re: COVID-19 Sanitation Schedule and

17 Protocols at Attachment 1; Exemplar Unit Sanitization Log for Zone 7 at Attachment 2.)

18

25. The facility has developed a staffing contingency plan in the event there are

19 increased staff absences due to the virus. In addition, certain posts have been collapsed as

20 detainee movement is restricted to prevent COVID-19 exposure and these staff are

21 reassigned to accommodate staffing needs in other operational areas.

22

26. I am in continual contact with USMS, ICE, and Mesa officials in order to

23 keep CAFCC’s government partners updated on all protocols and procedures in place at the

24 facility, to report on the status of facility operations and detainee health statistics, and to

25 address any concerns or directives they may have regarding CAFCC operations.

26

27. I am also in frequent contact with the Pinal County Public Health Services

27 District as well as other local government bodies and government officials such as the

28 Florence City Manager, local law enforcement, and local emergency medical services to

5

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 6 of 27

1 provide status updates as to infection rates, ensure that any applicable state and local

2 protocols are met, and discuss emergency procedures and plans of action.

3

28. CoreCivic/CAFCC has security-sensitive and confidential emergency plans

4 for Medical Emergency (including specifically COVID-19) and Pandemic Flu

5 Preparedness, as part of its Emergency Response Policy—policies in effect long before

6 COVID-19. The disclosure of the specific details of those plans poses a legitimate safety,

7 security, and operations risk should they be communicated to the detainee population or the

8 public. Furthermore, CAFCC already has policies in place to manage and treat potential

9 outbreaks of communicable diseases, such as influenza or tuberculosis.

10

29. In February 2020, CoreCivic issued an initial Pandemic Coronavirus Plan that

11 has been continually updated as more has become known about the virus and as guidance

12 is provided by the CDC. (CoreCivic Pandemic Coronavirus Plan, updated May 7, 2020, at

13 Attachment 3.)

14

30. CoreCivic has also initiated a COVID-19 Medical Emergency Plan that has

15 been implemented at all CoreCivic facilities, including CAFCC. (Medical Emergency:

16 Pandemic Coronavirus (COVID-19) Plan at Attachment 4.)

17

Cohort/Quarantine Strategies

18

31. CAFCC has developed and is constantly reviewing its contingency plans for

19 confirmed or presumptive COVID-19-positive detainees to promote containment and

20 prevent further exposure and infection.

21

32. CAFCC has the ability to adjust housing unit use and dedicate particular

22 housing pods for cohort or quarantine purposes in order to limit exposure to other detainees

23 or staff.

24

33. Starting on March 19, 2020, CAFCC began cohorting new arrivals and

25 detainees returning from outside transports based on their intake/facility return date.

26

34. For example, all detainees arriving at the facility on March 19, 2020 would

27 be assigned to a cohort with an expected release date of April 2, 2020, assuming no

28 detainees from that cohort showed symptoms of COVID-19 or tested positive for the virus

6

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 7 of 27

1 during that time. All detainees arriving at the facility on March 20, 2020 would be assigned

2 to a cohort with an expected release date of April 3, 2020, and so on.

3

35. If a detainee from the cohort displays symptoms of COVID-19, such as fever

4 over 101 degrees, coughing, body aches, or shortness of breath, or is confirmed to be

5 positive for COVID-19, the cohort’s release date is extended to 14 days from the last such

6 instance. There are at least 14 active cohort groups at any given time.

7

36. Prior to May 1, 2020, most new arrivals were cohorted in Lima Unit, which

8 consists of eight pods of two-man cells. Since May 1, 2020, most new arrivals are cohorted

9 in Delta Unit, which also consists of eight pods of two-man cells.3

10

37. These cohorted detainees are housed individually as much as possible. To the

11 extent it is necessary to house them with a cellmate, detainees are housed with another

12 detainee from their cohort. Signs are posted on each cell indicating the cohort group number

13 and anticipated end date.

14

38. Although a particular pod may house detainees in different cohort groups, the

15 detainees are in a lockdown status in which they are only allowed be out of their cells with

16 other detainees from their own cohort group.

17

39. The dayroom and other common areas are sanitized between groups,

18 following CAFCC’s COVID-19 Sanitation Schedule and Protocols. Specifically, this

19 requires that: HDQC2, a quaternary disinfectant that is EPA-registered for use against

20 COVID-19,4 be sprayed on showers, tables, door handles, knobs, handrails, push buttons,

21 intercoms, and workout equipment, and that phones and kiosks be wiped with a towel that

22 has been sprayed with HDQC2. (Memorandum re: COVID-19 Sanitation Schedule and

23

24 3 Some detainees, such as females, detainees who require protective custody, or
25 material witnesses are not able to be housed in Lima or Delta Unit, but were housed in units
26 suitable to their particular needs following the general guidelines outlined here. 4 See https://www.spartanchemical.com/products/product/470202/#top and https://
27 www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2#filter_col1,
28 search for “1839-169,” both last accessed May 13, 2020.

7

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 8 of 27

1 Protocols at Attachment 1; Environmental Cleaning and Disinfection Recommendations at

2 Attachment 5.)

3

40. Once the cohort has completed their 14-day period, they are assigned to a

4 general population unit as appropriate in light of their custody status and other classification

5 criteria.

6

41. When a detainee who is not in a cohorted status displays symptoms of

7 COVID-19, such as fever over 101 degrees, coughing, body aches, or shortness of breath,

8 they are removed from their pod and quarantined in J Pod pending medical assessment and

9 testing for COVID-19 as deemed necessary by medical staff. The detainee’s pod is then

10 placed on quarantine status for a period of 14 days. As of May 13, 2020, 137 detainees were

11 on quarantine status due to either a positive test or exposure to a symptomatic/positive

12 detainee.

13

42. To ensure that the detainee does not contaminate others while being moved

14 to J Pod, they are taken outside the facility (but still within the secure perimeter) and

15 transported to J Pod in a facility transport vehicle, which is cleaned and disinfected before

16 and after each use. (COVID-19 Transport Sanitation Guidelines at Attachment 6.)

17

43. If the detainee tests positive for COVID-19, they are kept in J Pod until they

18 have been symptom-free for at least 72 hours, at which point they are moved to a recovery

19 pod for a further 14-day cohort period before returning them to a general population unit.

20 If the detainee tests negative for COVID-19, they are kept in quarantine for 14 days before

21 being returned to a general population pod.

22

44. Detainees in J Pod are generally housed individually, but may be housed with

23 a cellmate if both detainees are confirmed positive or confirmed negative for COVID-19.

24

45. I am aware that detainees Maria Lucero-Gonzalez and Claudia Romero-

25 Lorenzo claim they were exposed to other detainees who showed symptoms of COVID-19

26 but were not removed from their pods. This is false. Detainees are responsible for reporting

27 their symptoms to staff so they can be immediately assessed and quarantined if necessary.

28 To date, no females at CAFCC have reported any symptoms related to COVID-19.

8

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 9 of 27

1

46. I am also aware that attorney Christina Woehr claims an unidentified male

2 detainee in Lima Unit told her his pod was released from quarantine “seemingly by mistake”

3 sometime during the week of April 27, 2020 (Ms. Woehr, who signed her Declaration on

4 May 7, 2020, stated only that this detainee told her this incident occurred sometime the

5 week before). This is false. Lima Unit did not go on quarantine status until May 1, 2020.

6 Even after Lima Unit was placed on quarantine status, however, detainees were still

7 permitted to mingle in their assigned dayrooms. No detainees were moved from Lima Unit

8 to a general population pod and then moved back several hours later at any time during the

9 week of April 27, 2020, or at any time since then.

10

47. All staff entering a cohort or quarantine area must wear full personal

11 protective equipment (“PPE”), including a full suit/coveralls, rubber boots, gloves, N-95

12 respirator, and goggles/face shield.

13

48. Upon exiting a cohort or quarantine area, staff must stop at the designated

14 decontamination zone and remove their PPE and any contaminated materials. Boots,

15 goggles/face shields, and any other PPE that can be cleaned and sanitized is sprayed with

16 HDQC2. Any PPE that cannot be cleaned and sanitized is disposed of in a red biohazard

17 bag. Staff must then wash their hands thoroughly; a shower is also available if needed. Staff

18 then exit the decontamination zone through a pre-designated route to minimize the transfer

19 of any contaminants. (CAFCC Facility Operational Plan at Attachment 7; Photos of Lima

20 Unit Entry/Exit Areas at Attachment 8.)

21

49. All trash from the cohort and quarantine housing areas is treated as medical

22 waste/biohazardous material.

23

50. Cohort and quarantine housing are not punitive measures, and do not subject

24 detainees to conditions of confinement similar to heightened restrictions placed on RHU

25 detainees. Rather, detainees are provided with the same activities and opportunities as they

26 would receive in a general population pod, including access to recreation, dayroom time,

27 programming, commissary, legal visitation (including virtual legal visits when possible),

28 video court appearances, telephone calls, detainee mail operations, legal research access via

9

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 10 of 27

1 housing pod kiosks, library access via request/delivery from the librarian, and legal copy

2 requests via the facility librarian, subject to restricted movement protocols.

3

51. Detainees in cohort status receive 7-day and 14-day medical assessments,

4 unless they report and/or display symptoms of COVID-19, in which case they are evaluated

5 by medical staff immediately. In between those assessments, cohorted detainees with

6 medical issues have access to medical through the use of the sick call system by filling out

7 a Sick Call Request form and depositing it in the drop box, where it is checked daily and

8 triaged by facility nursing staff. Detainees in quarantine status receive daily medical

9 assessments. Detainees not in either a cohort or quarantine have access to medical through

10 the use of the sick call system as well. Detention and unit staff are also available 24 hours

11 a day to all detainees to report any emergent medical needs.

12

52. On or about March 18, 2020, CAFCC Health Services Administrator

13 (“HSA”) K. Jaramillo, in consultation with Senior Physician John Osteen, M.D., created a

14 list of 67 who are at higher risk for severe illness if they become infected with COVID-19

15 based on CDC guidelines. See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-

16 precautions/people-at-higher-risk.html, last accessed May 13, 2020. That list is updated

17 regularly as new detainees are booked into CAFCC and others are transferred or released.

18

53. On or about April 7, 2020, CAFCC initiated a High-Risk Detainee Plan for

19 COVID-19 that outlines operational strategies to identify, monitor, and care for these

20 higher-risk detainees. (High-Risk Detainee Plan for COVID-19 at Attachment 9.)

21

54. A copy of the higher-risk list is provided to the Chief of Unit Management to

22 ensure continued monitoring of the higher-risk detainees and prompt treatment if they are

23 exposed or potentially exposed to COVID-19.

24

55. CAFCC does not cohort detainees at higher risk of severe illness, however,

25 to avoid inadvertently exposing the more vulnerable detainees to COVID-19.

26

56. Detainees on the higher-risk list continue to receive regular medical care for

27 their underlying medical conditions.

28

10

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 11 of 27

1

57. As of May 13, 2020, none of the higher-risk detainees have been exposed or

2 suspected of being exposed to COVID-19, and none have tested positive for COVID-19.

3

58. All detainees are regularly advised via postings throughout the facility and

4 regular Town Hall Meetings, including written Town Hall Meeting Records posted in the

5 housing units, to let staff know immediately if they have fever, chest congestion, difficulty

6 breathing, or other symptoms of COVID-19. All unit and security staff have also been

7 instructed on COVID-19 symptoms and to contact medical personnel immediately if such

8 symptoms are reported or observed.

9

59. Detention staff are also trained in the normal course of operation to administer

10 emergency first aid. Medical staff provide support around the clock through medical

11 providers available on-site and on-call.

12

60. There are no vaccines for COVID-19. All detainees who test positive for

13 COVID-19, or are awaiting test results, are treated according to existing clinical criteria

14 with acetaminophen, fluids, and rest, unless a higher level of care requiring hospitalization

15 is indicated. If hospitalization is required, CAFCC has agreements with several area

16 hospitals, including but not limited to Mountain Vista Medical Center in Florence, Banner

17 Ironwood Hospital Medical Center in Queen Creek, Mercy Gilbert Medical Center in

18 Gilbert, and St. Joseph’s Hospital in Phoenix.

19

Efforts to Mitigate Risk of Introduction/Spread of COVID-19 at CAFCC

20

61. Consistent with CDC Interim Guidance on Management of [COVID-19] in

21 Correctional and Detention Facilities (“CDC Interim Guidance”),5 USMS guidelines, and

22 industry practices, CAFCC has taken ample and appropriate steps to reduce COVID-19

23 exposure and infection for the detainee population and staff.

24

62. These steps have been highly effective. As of May 13, 2020, CAFCC only

25 has 15 COVID-19-positive detainees. Of those, only one has come from the general

26

27

5 See https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention

28 /guidance-correctional-detention.html, last accessed May 13, 2020.

11

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 12 of 27

1 population, which did not occur until May 12, 2020. Thirteen were cohorted new intakes

2 who were likely infected before they arrived at CAFCC, and one was confirmed positive at

3 another facility before being transferred to CAFCC.

4

63. CAFCC suspended social visitation on March 12, 2020 to protect CAFCC

5 from outside COVID-19 exposure. Volunteer entry was also suspended for the same reason.

6

64. Legal visitation has not been suspended, but non-contact visitation, including

7 through the use of telephones or the facility video teleconferencing (“VTC”) system is

8 encouraged. The VTC system is available from 7:00 a.m. to 9:00 p.m. Monday-Friday. No

9 firm time limits are placed on detainees using the VTC, but detainees are encouraged to be

10 efficient with their use of it to ensure that all detainees who want/need to use it are able to

11 do so, given that CAFCC houses detainees from several jurisdictions (who do not intermix),

12 of varying custody levels (who do not intermix), of both sexes (who do not intermix), and

13 who may be under cohort or quarantine status (and do not intermix).

14

65. If an attorney requests a contact visit, the visitation area is sanitized with

15 HDQC2 before and after the visit, including, but not limited to, by wiping down chairs,

16 tables, telephones, and other surfaces and equipment. Very few contact legal visits have

17 occurred since these precautions went into effect, however, as most attorneys prefer to use

18 the VTC system.

19

66. Detainees may also call their attorneys from their housing pods (the calls are

20 not monitored/recorded if the detainee has previously designated the recipient as an

21 attorney) including placing collect calls to their attorneys. If the attorneys are already on the

22 facility pro bono counsel legal call list, the calls are free of charge and not

23 monitored/recorded. Although the in-pod telephones are fixed in place and cannot be

24 moved, detainees have ample space in the dayroom to ensure social distancing between

25 those on the telephone and those waiting to use the telephone, and they can wear masks

26 while on the telephone or waiting to use the telephone to provide additional protection as

27 well.

28

12

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 13 of 27

1

67. In addition to attorney-client visits, the VTC system is used for court

2 appearances, including probation interviews, initial appearances, and other court hearings.

3 CAFCC facilitates approximately 650-700 such uses each week.

4

68. CAFCC does not currently transport detainees for in-person court hearings,

5 as the District of Arizona suspended in-person hearings as of March 20, 2020. Similarly,

6 pursuant to USMS directives, CAFCC stopped all transports for non-urgent outside medical

7 consults as of April 2, 2020 (but continues to make emergency transports as needed).

8

69. All persons entering CAFCC, whether they are a CoreCivic employee,

9 contractor, USMS/ICE/Mesa employee, or attorney, are subject to screening as a pre-

10 requisite to entrance to the facility.

11

70. Signs at the front gate advise all persons entering CAFCC that they must wear

12 a mask to enter. If they do not have a mask, they are directed to maintain social distancing

13 and obtain and immediately put on a mask once they are in the lobby. (Photos of Entry Gate

14 at Attachment 10.)

15

71. Signs on the door to the lobby again advise all persons entering CAFCC that

16 they must wear a mask to enter. If they do not have a mask, they are directed to maintain

17 social distancing and obtain and immediately put on a mask once they are in the lobby.

18 (Photos of Front Entrance Door at Attachment 11.)

19

72. Signs in the lobby remind all persons entering the facility to wear their masks

20 to protect themselves and others. (Photos of Lobby at Attachment 12.)

21

73. Consistent with CDC Interim Guidance, the entry screening consists of a

22 series of questions and a temperature check with a no-touch thermometer. (Entry Screening

23 Tool at Attachment 13.) Staff administering the screening wear full PPE, including

24 coveralls, gloves, N-95 respirator, and face shield, and social distancing is also employed

25 during the entrance screening process. (Photos of Entry Point Screening at Attachment 14.)

26

74. If any person answers affirmatively to the screening questions, or if the person

27 exhibits symptoms of COVID-19, including a fever in excess of 100.4 degrees, they are

28 denied entry to the facility.

13

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 14 of 27

1

75. If a CoreCivic employee is denied entry, the employee is sent home and

2 directed to see a healthcare provider for further screening. Those that have been denied

3 entrance must obtain clearance from their medical provider and provide documentation

4 before they will be admitted into the facility. Likewise, if any staff member experiences

5 symptoms at work, that individual is immediately sent home and directed to see a healthcare

6 provider as soon as possible.

7

76. When an employee has been denied entry, or reports a confirmed positive test

8 or close contact with a confirmed positive individual, CAFCC performs a contact tracing

9 analysis, using the facility surveillance system to document each contact the infected or

10 potentially infected person had during the employee’s last 48 hours at the facility. This

11 allows CAFCC to identify any other employees or detainees who may require additional

12 surveillance, precautions, or testing in order to minimize the spread of COVID-19 within

13 the facility. CAFCC performs a similar contact tracing analysis for any detainees who are

14 confirmed positive for COVID-19.

15

77. Following entrance health screening, persons permitted to access the facility

16 are still required to complete security screening. Only one person may enter security

17 screening at a time. Generally, the security screening resembles most airport security

18 screenings, where items carried by, or to be removed from, a person screened are placed on

19 bins and sent through a scanner. At CAFCC, officers that manage the scanners disinfect the

20 bins after each use. The security screening officers wear gloves such that only the owners

21 of the items screened touch the property with ungloved hands. (Photos of Entry Point

22 Screening at Attachment 14.)

23

78. The housing units at CAFCC are largely self-contained, such that there is little

24 detainee traffic in the hallways even under normal circumstances. Nevertheless, detainee

25 movement within the facility has been significantly limited to reduce COVID-19 exposure.

26 Moreover, detainees are required to wear paper surgical masks any time they leave their

27 pod, especially when they are going to an area where social distancing is more difficult,

28 such as the medical unit, a case manager’s office, or a legal visit.

14

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 15 of 27

1

79. The transportation of detainees to off-site medical providers has been limited

2 to only essential and/or emergency medical services. In the event it is necessary to transport

3 a detainee to an offsite hospital or clinic, staff are required to screen the detainee for

4 COVID-19 by checking the detainee’s temperature and noting it on the transfer of custody

5 receipt or transport orders. If the temperature is 100 degrees or above, the detainee is given

6 a paper mask and escorted to medical immediately. A thermometer and 25 paper masks are

7 kept in the Transportation Senior Correctional Officer’s Office for this purpose. Staff are

8 required to wear an N-95 mask.

9

80. Once the detainee returns to the facility, they are screened at intake in

10 accordance with CDC Interim Guidance and cohorted for 14 days. All CoreCivic transport

11 vehicles are disinfected completely both before and after each transport. (COVID-19

12 Transport Sanitation Guidelines at Attachment 6.)

13

81. As in the rest of the country, one challenge at CAFCC has been to gauge the

14 ordering and availability of PPE and sanitation products to ensure the facility is prepared,

15 while understanding the possibility that such supplies may become unavailable in the future

16 due to heightened demand. For this reason, CAFCC began increasing its stock of PPE and

17 sanitation supplies in February.

18

82. As of May 13, 2020, CAFCC had the following PPE items in stock:

19

• 475 Eye Protection

20

• 500 Coveralls

21

• 1,740 N-95 Masks

22

• 14,267 paper surgical masks

23

• 1,718 Boxes Gloves (50 Count)

24 (Photos of Masks and Gloves at Attachment 15.)

25

83. CAFCC personnel have long been issued protective gloves as part of

26 universal precautions to reduce the risk of exposure to or transmission of any pathogen. In

27 the normal course of operations, detention staff are required to wear gloves when

28

15

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 16 of 27

1 conducting searches of detainees, their cells, and their personal property. These normal

2 protocols did not change with onset of COVID-19.

3

84. Like the nation at large, both CoreCivic and CAFCC are continually adjusting

4 to the rapid changes brought about by the COVID-19 pandemic, including the adaptation

5 of practices and policies in accordance with guidance from health experts, particularly the

6 CDC, to ensure the health and safety of detainees, staff, and the community.

7

85. One area of recent change in guidance from national health experts pertains

8 to the utilization of face masks to decrease COVID-19 transmission. Initially, the CDC did

9 not recommend face masks for individuals who are well. As guidance from the CDC has

10 evolved in this regard, so have CAFCC operations.

11

86. When CAFCC began cohorting detainees on March 19, 2020, the use of

12 masks by staff working outside of the protective cohorts was optional, but such use was

13 required if working in the cohort or quarantine pods.

14

87. Since April 11, 2020, CAFCC staff have been permitted to use their own

15 personal paper or cloth masks while on duty, or may request facility-issued masks. Staff are

16 instructed that the mask should cover both the mouth and nose and be adjusted by the wearer

17 as frequently as needed to ensure the best coverage of the mouth and nose. Staff have also

18 been instructed on re-use and cleaning/laundering of paper and cloth masks per CDC

19 guidelines.

20

88. CAFCC has also offered all detainees paper face masks, without cost. Masks

21 were first offered to detainees on April 13, 2020, and again on May 11, 2020. (Photos of

22 Mask Distribution at Attachment 16.)

23

89. Detainees were advised that the masks should be used for as long as they

24 remain usable. At any time, however, if a detainee’s mask becomes soiled or otherwise

25 unusable, the detainee can request a new mask, and it will be provided to them.

26

90. Detainees are not required to wear their masks inside their housing units if

27 they do not wish to, but they are encouraged to do so and have been educated as to the

28

16

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 17 of 27

1 reasons for such use, as detailed below. (Inmate/Resident Use of Cloth or Surgical Paper

2 Masks (English/Spanish) at Attachment 17.)

3

91. Although the use of face masks is encouraged repeatedly and often, the

4 decision was made not to enforce 100% mask use during waking hours for several reasons.

5 First, there would be detainees who would push back, requiring the use of graduated

6 disciplinary measures, up to and including placement in the RHU. Second, and related to

7 the first, filling the RHU with detainees who refuse to wear masks would (1) take away

8 beds that could be used to cohort or quarantine detainees, (2) take away beds that are needed

9 for other, more serious disciplinary infractions, and (3) eventually result in detainees having

10 to be double-celled in a situation in which they are in their cells for up to 23 hours per day,

11 during which time they would be unable to practice proper social distancing.

12

92. Gloves and masks are provided to detainees who participate in the Voluntary

13 Work Program (“VWP”) as pod porters. Similarly, detainees who participate in the VWP

14 as kitchen workers are given masks, gloves, and other protective equipment as required by

15 applicable guidelines, such as hair nets. Detainees who participate as commissary workers

16 and in-pod laundry workers are also provided masks.

17

Staff and Detainee COVID-19 Education

18

93. CAFCC has a long track record of training its staff with respect to potential

19 exposure to pathogens, disease spread prevention, emergency response, and adherence to

20 universal precautions.

21

94. In accordance with CDC Interim Guidance, educational materials have been

22 posted throughout the facility and in all housing units regarding COVID-19 symptoms, what

23 to do if you are sick, hand-washing, sanitation and cleanliness, mask use, and steps to reduce

24 the risk of exposure. (Photos of 900A at Attachment 18; Photos of 900C at Attachment 19;

25 Photos of 1100A at Attachment 20; Photos of 1100B at Attachment 21; Photos of 1100F at

26 Attachment 22; Photos of 1200C at Attachment 23; Photos of Entry Point Screening at

27 Attachment 14; COVID-19 Information for Inmates and Detainees at Attachment 24; Social

28 Distancing 101 at Attachment 25.)

17

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 18 of 27

1

95. Communication is key. Unit staff hold Town Hall Meetings every time there

2 is a change in procedure, such as when social visitation was cancelled, when the sanitization

3 schedule was updated, when mask procedures were updated, etc. Because guidelines and

4 recommendations with regard to COVID-19 are constantly evolving, this results in Town

5 Hall Meetings being conducted once or twice per week on average. Town Hall Meeting

6 Records are posted in the housing units to remind detainees of the topics discussed, and

7 record both the topics presented by unit staff as well as any concerns expressed by detainees

8 during the meeting and written responses to those concerns. I also prepared a Notice to the

9 Population regarding the facility’s COVID-19-related efforts and directed that it be posted

10 in the housing units. (Photos of 1200C at Attachment 23; Exemplar Town Hall Meeting

11 Records for Units 800, 900, and 1200 and Warden Notice for March 12, 2020 to May 8,

12 2020 at Attachment 26.)

13

96. Exemplar Town Hall Meeting Records for April and May 2020 demonstrate

14 that detainees have been amply educated regarding COVID-19 prevention and response

15 strategies. For example, detainees were educated as follows:

16

• 4/13/20—We have been doing several things at this facility in keeping the

17

population safe from Covid19. Continue to keep your areas clean. Keep your

18

hands away from your face and be mindful of everyone’s personal space. We

19

are continuing to spray down handles, doors, etc. We hung up new

20

information this week from our Corporate office regarding Covid. Review it

21

and let us know if you have questions…. All population at CAFCC have been

22

issued a mask for your personal wear. You will only be issued the 1 mask.

23

You are not required to wear the mask but you can. If you are wearing it, you

24

will have to remove it at staff’s request for verification purposes. Remember,

25

keep your hands away from your face and washing them is the best

26

prevention.

27

28

18

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 19 of 27

1

• 4/13/20—COVID-19 We do NOT currently have any cases at our facility.

2

We are issuing masks-each inmate will ONLY get one. You may choose to

3

wear it, or not, but expect to remove it for any identification purposes.

4

• 4/17/20—We have been doing several things at this facility in keeping the

5

population safe from Covid19. Continue to keep your areas clean. Keep your

6

hands away from your face and be mindful of everyone’s personal space. We

7

are continuing to spray down handles, doors, etc. We hung up new

8

information this week from our Corporate office regarding Covid. Review it

9

and let us know if you have questions…. All population at CAFCC have been

10

issued a mask for your personal wear. You will only be issued the 1 mask.

11

You are not required to wear the mask but you can. If you are wearing it, you

12

will have to remove it at staff’s request for verification purposes. Remember,

13

keep your hands away from your face and washing them is the best

14

prevention.

15

• 5/1/20—MANDATORY USE OF MASKS - ALL Inmates will wear masks

16

when exiting their housing pods going to rec, medical, VTC, etc. NO

17

Exceptions.

18

• 5/8/20—COVID-19 We currently [have] a very minimal amount of

19

confirmed cases at our facility. Several negative tests. We are strictly

20

following all CDC requirements. We will continue all sanitation procedures.

21

Further Precautions you may take:

22

o Social Distancing- Separate yourselves from each other as much as the

23

area allows.

24

o Wear your mask- wear your mask at all times even in the pods and in

25

your cells.

26

o Distance yourself when eating- eat in your cell or stagger when you

27

eat at the table among other inmates.

28

19

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 20 of 27

1

o Sleep away from one another- Sleep with your feet toward the other

2

person’s head. If you’re in a gang cell attempt to sleep feet to feet to

3

the person next to you.

4

o Wash your hands- wash as much as possible after touching multiple

5

surfaces or surfaces others frequently touch.

6 (Exemplar Town Hall Meeting Records for Units 800, 900, and 1200 and Warden Notice

7 for March 12, 2020 to May 8, 2020 at Attachment 26.)

8

97. Additionally, if detainees have any questions or concerns about COVID-19,

9 they may always speak with detention and unit staff, who are trained to answer their

10 questions.

11

98. Detainees are not required to forego social distancing recommendations in

12 order to attend Town Hall Meetings conducted by unit staff. To the contrary, unit staff

13 regularly have to direct detainees not to group up and to maintain social distancing—for

14 which there is plenty of room in the dayrooms—during the Town Hall Meetings.

15

Maintaining Social Distancing Among Staff and Detainees

16

99. Although it is challenging to always maintain six feet of physical distance in

17 a custodial setting, practices have been implemented at CAFCC to promote social

18 distancing.

19

100. The dayroom areas of CAFCC’s housing pods are large and allow ample

20 space for detainees to socially distance themselves from each other. (Photos of 900A at

21 Attachment 18; Photos of 900C at Attachment 19; Photos of 1100A at Attachment 20;

22 Photos of 1100B at Attachment 21; Photos of 1100F at Attachment 22; Photos of 1200C at

23 Attachment 23;) This is especially true where CAFCC’s total population is at 62% of its

24 design capacity.

25

101. Detainees are regularly advised of the importance of social distancing during

26 Town Hall Meetings and everyday interactions with staff.

27

102. Programming has been reduced, but not eliminated, and is limited to groups

28 of less than 10 to comply with applicable guidelines and to allow six feet of social

20

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 21 of 27

1 distancing. Recreation is largely unchanged, as CAFCC’s 14 recreation yards already

2 allowed proper social distancing, except for the cohort groups, which are run one cohort at

3 a time to ensure the cohorts do not intermix.

4

103. Even before COVID-19, CAFCC used a satellite feeding procedure for meal

5 service in which meals are delivered to the housing units. Kitchen workers bring the food,

6 dishes, and other equipment to the pod. Kitchen workers wear masks, gloves, and hair nets

7 as needed, and the food is protected by sneeze guards. (Photo of Meal Service at Attachment

8 27.) Workers deliver the trays through the food port to detainees waiting in line in the pod.

9 Detention officers in the pod monitor the line and remind detainees to practice proper social

10 distancing when they bunch up. Detainees are permitted to eat their meals wherever they

11 would like within the pod, such as at the dayroom tables or in their cells, in order to further

12 facilitate social distancing.

13

104. As with the masks, although social distancing is encouraged repeatedly and

14 often, the decision was made not to enforce 100% social distancing within the housing units

15 for several reasons. First, there would be detainees who would push back, requiring the use

16 of graduated disciplinary measures, up to and including placement in the RHU. Second, and

17 related to the first, filling the RHU with detainees who refuse to socially distance inside the

18 housing units would (1) take away beds that could be used to cohort or quarantine detainees,

19 (2) take away beds that are needed for other, more serious disciplinary infractions, and (3)

20 eventually result in detainees having to be double-celled in a situation in which they are in

21 their cells for up to 23 hours per day, during which time they would be unable to practice

22 proper social distancing.

23

Enhanced Sanitation Procedures

24

105. Consistent with CDC Interim Guidance, CAFCC has enhanced its already

25 robust sanitation practices in response to COVID-19.

26

106. In recognition of the potential future shortage of sanitation supplies, CAFCC

27 increased its inventory of cleaning chemicals and supplies beginning in February 2020. That

28 inventory is checked and restocked daily to maintain a sufficient supply on hand,

21

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 22 of 27

1 particularly if additional shortages occur in the public market. (Photos of Bleach and

2 HDQC2 at Attachment 28.)

3

107. CAFCC’s facility housekeeping plan was reviewed, updated and enhanced to

4 comply with CDC Interim Guidance. In particular, instructions were added pertaining to

5 the safe and recommended use of EPA-registered disinfectants, as well as appropriate use

6 of PPE in areas where the COVID-19 virus may be present. (Memorandum re: COVID-19

7 Sanitation Schedule and Protocols at Attachment 1; Environmental Cleaning and

8 Disinfection Recommendations at Attachment 5.)

9

108. During Town Hall meetings, detainees are instructed on how to safely sanitize

10 the common area surfaces that they may use during the day before and after use—such as

11 detainee telephones and kiosks.

12

109. Per CDC Interim Guidance, soap and water is still the most effective

13 mechanism to kill COVID-19. To that end, CAFCC gives each detainee two bars of soap

14 and a bottle of shampoo/body wash each week, and each housing unit has sufficient clean

15 running water and paper towels for the detainees who live there. If a detainee runs out of

16 either one before the next weekly distribution, all they have to do is ask for a replacement,

17 and it will be provided to them. A one-for-one exchange is only required for the

18 shampoo/body wash, which comes in a bottle, to prevent stockpiling by detainees of

19 materials that can be used in larger quantities to create safety and security risks to staff and

20 other detainees.

21

110. Any allegation that soap is not readily available is false. In April 2020 alone,

22 CAFCC issued approximately 27,960 bars of soap and 13,980 bottles of shampoo/body

23 wash free of charge to detainees. (Photos of Soap and Body Wash at Attachment 29.)

24

111. For legitimate and corrections-industry-accepted safety and security reasons,

25 detainees are not provided with alcohol-based hand sanitizer, as it is inflammatory and can

26 be used to make homemade alcohol.

27

112. In the normal course of operation, CAFCC detainees are provided with

28 facility-approved cleaning and EPA-registered disinfecting supplies, such as HDQC2, to

22

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 23 of 27

1 clean and sanitize their immediate living areas on a daily basis. In response to COVID-19,

2 detainees are provided access to extra cleaning supplies and disinfectant chemicals to clean

3 their cells/immediate living areas.

4

113. Detainees are also provided HDQC2 to sanitize common-area equipment such

5 as tables, telephones, and kiosks before and after they use it.

6

114. Any allegation that detainees are not provided sufficient chemicals and other

7 supplies to clean and disinfect their living areas and high-touch common surfaces, or that

8 they are required to clean these areas using their personal soap and/or shampoo/body wash,

9 is false. Each pod has a cleaning closet with mops, brooms, towels, and cleaning and

10 disinfecting supplies such as HDQC2. Spray bottles containing these chemicals are

11 available for detainee use, and can be refilled as needed from five-gallon jugs kept in the

12 cleaning closets. (Exemplar Photo of Cleaning Closets at Attachment 30.)

13

115. To ensure that regular cleaning and disinfecting measures are taking place,

14 the facility is divided into zones, and each zone is assigned a staff supervisor who is tasked

15 with tracking these activities on a log. (Exemplar Unit Sanitization Log for Zone 7 at

16 Attachment 2.) This includes spraying showers, tables, door handles, knobs, handrails, push

17 buttons, intercoms, workout equipment, toilets, and shelves with HDQC2, wiping

18 telephones and kiosks with towels sprayed with HDQC2, and mopping dayroom floors and

19 hallways with HDQC2. Detainees performing these tasks are given masks and gloves.

20 (Exemplar Photos of Detainees Cleaning at Attachment 31.) Staff are also required to spray

21 the staff restroom, door handles, and hard surfaces in their offices with HDQC2, and to use

22 a towel sprayed with HDQC2 to wipe down telephones, keyboards, computers, and other

23 equipment.

24

116. Additionally, each housing pod has 10-20 detainee pod porters who are

25 assigned to clean the common areas at different times during the day. These porters clean

26 showers, doors handles, floors, tables, microwaves, and anything else that gets touched on

27 a regular basis with HDQC2. As a result of these activities, high-touch hard surfaces in the

28 housing units are cleaned and disinfected at least once per hour.

23

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 24 of 27

1

117. In addition, employee time clocks have been adjusted so that employees are

2 no longer required to use their fingerprints to gain entry to the facility; only their

3 identification cards are required for entry and identification purposes. This measure

4 decreases solid surfaces touched by a volume of employees and thus decreases COVID-19

5 exposure risk.

6

118. All detainee mattresses are disinfected between uses by different individuals.

7

119. All library books delivered/retrieved from the housing pods are disinfected

8 (as is the library cart). The same goes for the carts used to deliver commissary items and

9 meals. Detainees have access to the law library via electronic kiosks in the housing pods.

10 Kiosks are disinfected frequently, and after each use. (Exemplar Photos of Staff

11 Disinfecting Equipment at Attachment 32.)

12

120. Detainee laundry is cleaned in commercial washers and dryers at the required

13 temperatures according to American Correctional Association standards. Detainees place

14 their laundry in personal laundry bags that are collected and taken to the in-unit laundry

15 facilities. Detainees who work in the laundry facilities wear masks and gloves, and are

16 trained not to shake laundry out so as not to distribute germs into the air, and to ensure the

17 laundry is dried completely.

18

121. All medical personnel clean and disinfect their areas after seeing a detainee,

19 ensuring that all medical equipment is cleaned and disinfected, as well.

20

122. When cleaning an area where a confirmed COVID-19 individual was housed,

21 the person tasked with cleaning must wear full PPE, including an N-95 mask. CoreCivic

22 has provided Environmental Cleaning and Disinfection Recommendations as a guidance

23 tool when cleaning an area where a suspected or confirmed person with a case of COVID-

24 19 has been housed. (Environmental Cleaning and Disinfection Recommendations at

25 Attachment 5.)

26

123. Any trash coming out of units where COVID-19 positive detainees are

27 cohorted or quarantined is treated as medical waste and disposed of accordingly.

28

24

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 25 of 27

1

124. CAFCC facility transport vehicles are also subject to enhanced cleaning and

2 disinfecting procedures to include use of antiviral cleaning agents both before and after each

3 transport. All transportation officers must practice appropriate hand-washing before and

4 after transport. Both transport staff and detainees wear masks during transport. (CAFCC

5 Facility Operational Plan at Attachment 7.)

6

Restrictive Housing Units

7

125. The RHU houses detainees in administrative or disciplinary segregation. Each

8 cell has a solid cell door with a window and food port, double bunk, toilet, and sink.6

9

126. Detainees in the RHU are housed individually as much as possible, although

10 detainees are sometimes housed with cellmates even during the current pandemic to ensure

11 that adequate space remains available in the RHU for use as overflow cohort or quarantine

12 housing, or for RHU placements necessitated by serious disciplinary infractions. For safety

13 and security reasons, any detainees who must be housed with a cellmate are housed only

14 with detainees from the same jurisdiction and of similar custody levels.

15

127. Additionally, detainees assigned to the RHU typically remain in their cells for

16 up to 23 hours per day and have limited interaction with other detainees, which means they

17 are already in a semi-quarantined state.

18

128. Detainees in the RHU are provided with at least one hour of recreation per

19 day, five days per week, and typically recreate alone in secure single-occupancy enclosures.

20 Detainees in the RHU receive all meals in their cells.

21

129. Staff perform checks of detainees in the RHU every 30 minutes on an

22 irregular schedule. Additionally, medical staff make rounds twice each day (i.e., once per

23 12-hour shift), and mental health staff make daily rounds. Detainees are also given the

24 opportunity to participate in weekly Segregation Committee meetings.

25

6 At times, CAFCC has been required to triple-bunk detainees as an overflow

26 capacity measure. As such, some double-occupancy cells have a third bunk in them.

Because CAFCC is currently at only 62% of its design capacity, however, no detainees— 27 in the RHU or elsewhere in the facility—are triple-bunked currently, and many of them are

28 housed individually.

25

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 26 of 27

1

130. Like general population detainees, detainees in the RHU have been provided

2 with paper surgical masks.

3

131. All RHU detainees have been educated on appropriate hand-washing,

4 hygiene, and cleanliness per CDC Interim Guidance. In addition, detainee pod porters

5 assigned to this unit have undertaken enhanced cleaning practices as described above, and

6 conduct deep cleanings of the unit on a regular basis. RHU detainees are also provided with

7 cleaning/disinfecting supplies as described above to clean their cells.

8

Conditions of Confinement in USMS Detainee Housing Pods

9

132. Plaintiffs are currently assigned to the following locations: Pods 900C,

10 1100A, 1100B, 1100F, and 1200C. Unit 900 is the RHU.

11

133. Again, the dayroom areas of these pods are large, and allow ample space for

12 detainees to socially distance themselves from each other. (Photos of 900C at Attachment

13 19; Photos of 1100A at Attachment 20; Photos of 1100B at Attachment 21; Photos of 1100F

14 at Attachment 22; Photos of 1200C at Attachment 23.)

15

134. Detainees in these pods—as in all pods throughout the facility—are regularly

16 advised of the importance of wearing face masks and social distancing when outside of their

17 cells during Town Hall Meetings and everyday interactions with staff.

18

135. All facility-wide COVID-19 response operations, including but not limited to

19 PPE requirements for staff, provision of medical care, provision of educational postings and

20 frequent Town Hall Meetings, provision of face masks to detainees, provision of soap and

21 cleaning/disinfecting supplies to detainees, social distancing opportunities, enhanced

22 sanitation practices, meal service, laundry service, commissary service, library service, and

23 legal visitation as described above are in place for Pods 900C, 1100A, 1100B, 1100F, and

24 1200C as well.

25 / / /

26 / / /

27 / / /

28 / / /

26

Case 2:20-cv-00901-DJH--DMF Document 16-3 Filed 05/14/20 Page 27 of 27

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 1 of 89

INDEX TO ATTACHMENTS DECLARATION OF K. KLINE

Lucero-Gonzales, et al. v. Kline, et al. No. 2:20-cv-00901-DJH-DMF

ATTACHMENT

DESCRIPTION

BATES NOS.

1

Memorandum re: COVID-19 Sanitation Schedule and Protocols

CORECIVIC-MLG0000007CORECIVIC-MLG0000008

2

Exemplar Unit Sanitization Log for

CORECIVIC-MLG0000009

Zone 7

3

CoreCivic Pandemic Coronavirus Plan, updated May 7, 2020

CORECIVIC-MLG0000010CORECIVIC-MLG0000049

4

Medical Emergency: Pandemic

Coronavirus (COVID-19) Plan

CORECIVIC-MLG0000050CORECIVIC-MLG0000055

5

Environmental Cleaning and

Disinfection Recommendations

CORECIVIC-MLG0000056CORECIVIC-MLG0000061

6

COVID-19 Transport Sanitation

CORECIVIC-MLG0000062

Guidelines

7

CAFCC Facility Operational Plan

CORECIVIC-MLG0000063CORECIVIC-MLG0000070

8

Photos of Lima Unit Entry/Exit Areas

CORECIVIC-MLG0000071CORECIVIC-MLG0000076

9

High-Risk Detainee Plan for COVID-19

CORECIVIC-MLG0000077 CORECIVIC-MLG0000079

10

Photos of Entry Gate

CORECIVIC-MLG0000080 CORECIVIC-MLG0000081

11

Photos of Front Entrance Door

CORECIVIC-MLG0000082

12

Photos of Lobby

13

Entry Screening Tool

CORECIVIC-MLG0000083CORECIVIC-MLG0000088 CORECIVIC-MLG0000089

14

Photos of Entry Point Screening

CORECIVIC-MLG0000090CORECIVIC-MLG0000093

15

Photos of Masks and Gloves

CORECIVIC-MLG0000094CORECIVIC-MLG0000097

16

Photos of Mask Distribution

CORECIVIC-MLG0000098CORECIVIC-MLG0000100

17

Inmate/Resident Use of Cloth or Surgical Paper Masks (English/Spanish)

CORECIVIC-MLG0000101CORECIVIC-MLG0000102

18

Photos of 900A

CORECIVIC-MLG0000103CORECIVIC-MLG0000108

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 2 of 89

ATTACHMENT

DESCRIPTION

BATES NOS.

19

Photos of 900C

CORECIVIC-MLG0000109CORECIVIC-MLG0000114

20

Photos of 1100A

CORECIVIC-MLG0000115CORECIVIC-MLG0000122

21

Photos of 1100B

CORECIVIC-MLG0000123CORECIVIC-MLG0000133

22

Photos of 1100F

CORECIVIC-MLG0000134CORECIVIC-MLG0000142

23

Photos of 1200C

CORECIVIC-MLG0000143CORECIVIC-MLG0000156

24

COVID-19 Information for Inmates and CORECIVIC-MLG0000157

Detainees

25

Social Distancing 101

CORECIVIC-MLG0000158

26

Exemplar Town Hall Meeting Records for Units 800, 900, and 1200 and

CORECIVIC-MLG0000159CORECIVIC-MLG0000176

Warden Notice for March 12, 2020 to

May 8, 2020

27

Photo of Meal Service

CORECIVIC-MLG0000177

28

Photos of Bleach and HDQC2

CORECIVIC-MLG0000178CORECIVIC-MLG0000180

29

Photos of Soap and Body Wash

CORECIVIC-MLG0000181CORECIVIC-MLG0000183

30

Exemplar Photos of Cleaning Closets CORECIVIC-MLG0000184

31

Exemplar Photos of Detainees Cleaning

CORECIVIC-MLG0000185CORECIVIC-MLG0000187

32

Exemplar Photos of Staff Disinfecting CORECIVIC-MLG0000188

Equipment

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 3 of 89
ATTACHMENT 1 Declaration of K. Kline

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 4 of 89 CORECIVIC-MLG000030

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 5 of 89 CORECIVIC-MLG000031

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 6 of 89
ATTACHMENT 2 Declaration of K. Kline

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 7 of 89 CORECIVIC-MLG000032

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 8 of 89
ATTACHMENT 3 Declaration of K. Kline

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 9 of 89
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Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 10 of 89

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ůŽƐĞĐŽŶƚĂĐƚŽĨĂKs/ͲϭϵĐĂƐĞʹ/ŶƚŚĞĐŽŶƚĞǆƚŽĨKs/Ͳϭϵ͕ĂŶŝŶĚŝǀŝĚƵĂůŝƐĐŽŶƐŝĚĞƌĞĚĂĐůŽƐĞ ĐŽŶƚĂĐƚŝĨƚŚĞǇĂͿŚĂǀĞďĞĞŶǁŝƚŚŝŶĂƉƉƌŽǆŝŵĂƚĞůǇϲĨĞĞƚŽĨĂKs/ͲϭϵĐĂƐĞĨŽƌĂƉƌŽůŽŶŐĞĚƉĞƌŝŽĚŽĨ ƚŝŵĞŽƌďͿŚĂǀĞŚĂĚĚŝƌĞĐƚĐŽŶƚĂĐƚǁŝƚŚŝŶĨĞĐƚŝŽƵƐƐĞĐƌĞƚŝŽŶƐĨƌŽŵĂKs/ͲϭϵĐĂƐĞ;Ğ͘Ő͕͘ŚĂǀĞďĞĞŶ ĐŽƵŐŚĞĚŽŶͿ͘ůŽƐĞĐŽŶƚĂĐƚĐĂŶŽĐĐƵƌǁŚŝůĞĐĂƌŝŶŐĨŽƌ͕ůŝǀŝŶŐǁŝƚŚ͕ǀŝƐŝƚŝŶŐ͕ŽƌƐŚĂƌŝŶŐĂĐŽŵŵŽŶƐƉĂĐĞ ǁŝƚŚĂKs/ͲϭϵĐĂƐĞ͘ĂƚĂƚŽŝŶĨŽƌŵƚŚĞĚĞĨŝŶŝƚŝŽŶŽĨĐůŽƐĞĐŽŶƚĂĐƚĂƌĞůŝŵŝƚĞĚ͘ŽŶƐŝĚĞƌĂƚŝŽŶƐǁŚĞŶ ĂƐƐĞƐƐŝŶŐĐůŽƐĞĐŽŶƚĂĐƚŝŶĐůƵĚĞƚŚĞĚƵƌĂƚŝŽŶŽĨĞǆƉŽƐƵƌĞ;Ğ͘Ő͕͘ůŽŶŐĞƌĞǆƉŽƐƵƌĞƚŝŵĞůŝŬĞůǇŝŶĐƌĞĂƐĞƐ ĞǆƉŽƐƵƌĞƌŝƐŬͿĂŶĚƚŚĞĐůŝŶŝĐĂůƐǇŵƉƚŽŵƐŽĨƚŚĞƉĞƌƐŽŶǁŝƚŚKs/Ͳϭϵ;Ğ͘Ő͕͘ĐŽƵŐŚŝŶŐůŝŬĞůǇŝŶĐƌĞĂƐĞƐ ĞǆƉŽƐƵƌĞƌŝƐŬ͕ĂƐĚŽƐĞĞǆƉŽƐƵƌĞƚŽĂƐĞǀĞƌĞůǇŝůůƉĂƚŝĞŶƚͿ͘
ůŽƐĞWƌŽǆŝŵŝƚǇʹ/ŶƚŚĞĐŽŶƚĞǆƚŽĨKs/Ͳϭϵ͕ĂŶŝŶĚŝǀŝĚƵĂůŝƐĐŽŶƐŝĚĞƌĞĚŝŶĐůŽƐĞƉƌŽǆŝŵŝƚǇŝĨƚŚĞǇĂƌĞ ǁŝƚŚŝŶƐŝǆ;ϲͿĨĞĞƚŽĨĂƉĞƌƐŽŶƚŚĂƚŚĂƐďĞĞŶƐĐƌĞĞŶĞĚĂƐďĞŝŶŐKs/ͲϭϵƉŽƐŝƚŝǀĞŽƌŚĂǀĞďĞĞŶŝŶĐůŽƐĞ ĐŽŶƚĂĐƚǁŝƚŚĂƉŽƐŝƚŝǀĞKs/ͲϭϵƉĞƌƐŽŶ͕ŝ͘Ğ͘ƉĂƚƐĞĂƌĐŚŝŶŐ͕ƚƌĂŶƐƉŽƌƚŝŶŐĂƌĞƐŝĚĞŶƚƚŽĂŶŽĨĨͲƐŝƚĞ ĂƉƉŽŝŶƚŵĞŶƚ͕ĞƚĐ͘
ŽŚŽƌƚŝŶŐʹŽŚŽƌƚŝŶŐƌĞĨĞƌƐƚŽƚŚĞƉƌĂĐƚŝĐĞŽĨŝƐŽůĂƚŝŶŐŵƵůƚŝƉůĞůĂďŽƌĂƚŽƌǇͲĐŽŶĨŝƌŵĞĚKs/ͲϭϵĐĂƐĞƐ ƚŽŐĞƚŚĞƌĂƐĂŐƌŽƵƉ͕ŽƌƋƵĂƌĂŶƚŝŶŝŶŐĐůŽƐĞĐŽŶƚĂĐƚƐŽĨĂƉĂƌƚŝĐƵůĂƌĐĂƐĞƚŽŐĞƚŚĞƌĂƐĂŐƌŽƵƉ͘/ĚĞĂůůǇ͕ ĐĂƐĞƐƐŚŽƵůĚďĞŝƐŽůĂƚĞĚŝŶĚŝǀŝĚƵĂůůǇ͕ĂŶĚĐůŽƐĞĐŽŶƚĂĐƚƐƐŚŽƵůĚďĞƋƵĂƌĂŶƚŝŶĞĚŝŶĚŝǀŝĚƵĂůůǇ͘,ŽǁĞǀĞƌ͕ ƐŽŵĞĐŽƌƌĞĐƚŝŽŶĂůĨĂĐŝůŝƚŝĞƐĂŶĚĚĞƚĞŶƚŝŽŶĐĞŶƚĞƌƐĚŽŶŽƚŚĂǀĞĞŶŽƵŐŚŝŶĚŝǀŝĚƵĂůĐĞůůƐƚŽĚŽƐŽĂŶĚŵƵƐƚ ĐŽŶƐŝĚĞƌĐŽŚŽƌƚŝŶŐĂƐĂŶĂůƚĞƌŶĂƚŝǀĞ͘^ĞĞYƵĂƌĂŶƚŝŶĞĂŶĚDĞĚŝĐĂů/ƐŽůĂƚŝŽŶƐĞĐƚŝŽŶƐďĞůŽǁĨŽƌƐƉĞĐŝĨŝĐ ĚĞƚĂŝůƐĂďŽƵƚǁĂǇƐƚŽŝŵƉůĞŵĞŶƚĐŽŚŽƌƚŝŶŐƚŽŵŝŶŝŵŝǌĞƚŚĞƌŝƐŬŽĨĚŝƐĞĂƐĞƐƉƌĞĂĚĂŶĚĂĚǀĞƌƐĞŚĞĂůƚŚ ŽƵƚĐŽŵĞƐ͘
ŽŵŵƵŶŝƚǇƚƌĂŶƐŵŝƐƐŝŽŶŽĨKs/ͲϭϵʹŽŵŵƵŶŝƚǇƚƌĂŶƐŵŝƐƐŝŽŶŽĨKs/ͲϭϵŽĐĐƵƌƐǁŚĞŶŝŶĚŝǀŝĚƵĂůƐ ĂĐƋƵŝƌĞƚŚĞĚŝƐĞĂƐĞƚŚƌŽƵŐŚĐŽŶƚĂĐƚǁŝƚŚƐŽŵĞŽŶĞŝŶƚŚĞŝƌůŽĐĂůĐŽŵŵƵŶŝƚǇ͕ƌĂƚŚĞƌƚŚĂŶƚŚƌŽƵŐŚƚƌĂǀĞů ƚŽĂŶĂĨĨĞĐƚĞĚůŽĐĂƚŝŽŶ͘KŶĐĞĐŽŵŵƵŶŝƚǇƚƌĂŶƐŵŝƐƐŝŽŶŝƐŝĚĞŶƚŝĨŝĞĚŝŶĂƉĂƌƚŝĐƵůĂƌĂƌĞĂ͕ĐŽƌƌĞĐƚŝŽŶĂů ĨĂĐŝůŝƚŝĞƐĂŶĚĚĞƚĞŶƚŝŽŶĐĞŶƚĞƌƐĂƌĞŵŽƌĞůŝŬĞůǇƚŽƐƚĂƌƚƐĞĞŝŶŐĐĂƐĞƐŝŶƐŝĚĞƚŚĞŝƌǁĂůůƐ͘&ĂĐŝůŝƚŝĞƐƐŚŽƵůĚ ĐŽŶƐƵůƚǁŝƚŚůŽĐĂůƉƵďůŝĐŚĞĂůƚŚĚĞƉĂƌƚŵĞŶƚƐŝĨĂƐƐŝƐƚĂŶĐĞŝƐŶĞĞĚĞĚŝŶĚĞƚĞƌŵŝŶŝŶŐŚŽǁƚŽĚĞĨŝŶĞ͞ůŽĐĂů ĐŽŵŵƵŶŝƚǇ͟ŝŶƚŚĞĐŽŶƚĞǆƚŽĨKs/ͲϭϵƐƉƌĞĂĚ͘,ŽǁĞǀĞƌ͕ďĞĐĂƵƐĞĂůůƐƚĂƚĞƐŚĂǀĞƌĞƉŽƌƚĞĚĐĂƐĞƐ͕Ăůů ĨĂĐŝůŝƚŝĞƐƐŚŽƵůĚďĞǀŝŐŝůĂŶƚĨŽƌŝŶƚƌŽĚƵĐƚŝŽŶŝŶƚŽƚŚĞŝƌƉŽƉƵůĂƚŝŽŶƐ͘
ŽŶĨŝƌŵĞĚǀƐ͘^ƵƐƉĞĐƚĞĚKs/ͲϭϵĐĂƐĞʹĐŽŶĨŝƌŵĞĚĐĂƐĞŚĂƐƌĞĐĞŝǀĞĚĂƉŽƐŝƚŝǀĞƌĞƐƵůƚĨƌŽŵĂ Ks/ͲϭϵůĂďŽƌĂƚŽƌǇƚĞƐƚ͕ǁŝƚŚŽƌǁŝƚŚŽƵƚƐǇŵƉƚŽŵƐ͘ƐƵƐƉĞĐƚĞĚĐĂƐĞƐŚŽǁƐƐǇŵƉƚŽŵƐŽĨKs/Ͳϭϵ ďƵƚĞŝƚŚĞƌŚĂƐŶŽƚďĞĞŶƚĞƐƚĞĚŽƌŝƐĂǁĂŝƚŝŶŐƚĞƐƚƌĞƐƵůƚƐ͘/ĨƚĞƐƚƌĞƐƵůƚƐĂƌĞƉŽƐŝƚŝǀĞ͕ĂƐƵƐƉĞĐƚĞĚĐĂƐĞ ďĞĐŽŵĞƐĂĐŽŶĨŝƌŵĞĚĐĂƐĞ͘
DĞĚŝĐĂů/ƐŽůĂƚŝŽŶʹDĞĚŝĐĂůŝƐŽůĂƚŝŽŶƌĞĨĞƌƐƚŽĐŽŶĨŝŶŝŶŐĂĐŽŶĨŝƌŵĞĚŽƌƐƵƐƉĞĐƚĞĚKs/ͲϭϵĐĂƐĞ ;ŝĚĞĂůůǇƚŽĂƐŝŶŐůĞĐĞůůǁŝƚŚƐŽůŝĚǁĂůůƐĂŶĚĂƐŽůŝĚĚŽŽƌƚŚĂƚĐůŽƐĞƐͿ͕ƚŽƉƌĞǀĞŶƚĐŽŶƚĂĐƚǁŝƚŚŽƚŚĞƌƐĂŶĚ ƚŽƌĞĚƵĐĞƚŚĞƌŝƐŬŽĨƚƌĂŶƐŵŝƐƐŝŽŶ͘DĞĚŝĐĂůŝƐŽůĂƚŝŽŶĞŶĚƐǁŚĞŶƚŚĞŝŶĚŝǀŝĚƵĂůŵĞĞƚƐƉƌĞͲĞƐƚĂďůŝƐŚĞĚ ĐůŝŶŝĐĂůĂŶĚͬŽƌƚĞƐƚŝŶŐĐƌŝƚĞƌŝĂĨŽƌƌĞůĞĂƐĞĨƌŽŵŝƐŽůĂƚŝŽŶ͕ŝŶĐŽŶƐƵůƚĂƚŝŽŶǁŝƚŚĐůŝŶŝĐĂůƉƌŽǀŝĚĞƌƐĂŶĚƉƵďůŝĐ ŚĞĂůƚŚŽĨĨŝĐŝĂůƐ;ĚĞƚĂŝůĞĚŝŶŐƵŝĚĂŶĐĞďĞůŽǁͿ͘/ŶƚŚŝƐĐŽŶƚĞǆƚ͕ŝƐŽůĂƚŝŽŶĚŽĞƐEKdƌĞĨĞƌƚŽƉƵŶŝƚŝǀĞ ŝƐŽůĂƚŝŽŶĨŽƌďĞŚĂǀŝŽƌĂůŝŶĨƌĂĐƚŝŽŶƐǁŝƚŚŝŶƚŚĞĐƵƐƚŽĚŝĂůƐĞƚƚŝŶŐ͘^ƚĂĨĨĂƌĞĞŶĐŽƵƌĂŐĞĚƚŽƵƐĞƚŚĞƚĞƌŵ ͞ŵĞĚŝĐĂůŝƐŽůĂƚŝŽŶ͟ƚŽĂǀŽŝĚĐŽŶĨƵƐŝŽŶ͘

 Ž ŵ ŵ Ƶ Ŷ ŝ ƚ Ǉ  K s /  Ͳ ϭ ϵ  W Ă Ŷ Ě Ğ ŵ ŝ Đ  W ů Ă Ŷ  Ͳ  ƌĞǀ͘Ϯ;DĂǇϳ͕ϮϬϮϬͿ 

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CORECIVIC-MLG000036

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 13 of 89

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YƵĂƌĂŶƚŝŶĞʹYƵĂƌĂŶƚŝŶĞƌĞĨĞƌƐƚŽƚŚĞƉƌĂĐƚŝĐĞŽĨĐŽŶĨŝŶŝŶŐŝŶĚŝǀŝĚƵĂůƐǁŚŽŚĂǀĞŚĂĚĐůŽƐĞĐŽŶƚĂĐƚǁŝƚŚ ĂKs/ͲϭϵĐĂƐĞƚŽĚĞƚĞƌŵŝŶĞǁŚĞƚŚĞƌƚŚĞǇĚĞǀĞůŽƉƐǇŵƉƚŽŵƐŽĨƚŚĞĚŝƐĞĂƐĞ͘YƵĂƌĂŶƚŝŶĞĨŽƌKs/Ͳϭϵ ƐŚŽƵůĚůĂƐƚĨŽƌĂƉĞƌŝŽĚŽĨϭϰĚĂǇƐ͘/ĚĞĂůůǇ͕ĞĂĐŚƋƵĂƌĂŶƚŝŶĞĚŝŶĚŝǀŝĚƵĂůǁŽƵůĚďĞƋƵĂƌĂŶƚŝŶĞĚŝŶĂƐŝŶŐůĞ ĐĞůůǁŝƚŚƐŽůŝĚǁĂůůƐĂŶĚĂƐŽůŝĚĚŽŽƌƚŚĂƚĐůŽƐĞƐ͘/ĨƐǇŵƉƚŽŵƐĚĞǀĞůŽƉĚƵƌŝŶŐƚŚĞϭϰͲĚĂǇƉĞƌŝŽĚ͕ƚŚĞ ŝŶĚŝǀŝĚƵĂůƐŚŽƵůĚďĞƉůĂĐĞĚƵŶĚĞƌŵĞĚŝĐĂůŝƐŽůĂƚŝŽŶĂŶĚĞǀĂůƵĂƚĞĚĨŽƌKs/Ͳϭϵ͘/ĨƐǇŵƉƚŽŵƐĚŽŶŽƚ ĚĞǀĞůŽƉ͕ŵŽǀĞŵĞŶƚƌĞƐƚƌŝĐƚŝŽŶƐĐĂŶďĞůŝĨƚĞĚ͕ĂŶĚƚŚĞŝŶĚŝǀŝĚƵĂůĐĂŶƌĞƚƵƌŶƚŽƚŚĞŝƌƉƌĞǀŝŽƵƐƌĞƐŝĚĞŶĐǇ ƐƚĂƚƵƐǁŝƚŚŝŶƚŚĞĨĂĐŝůŝƚǇ͘
^ŽĐŝĂůŝƐƚĂŶĐŝŶŐWWE/yϳʹ^ŽĐŝĂůĚŝƐƚĂŶĐŝŶŐŝƐƚŚĞƉƌĂĐƚŝĐĞŽĨŝŶĐƌĞĂƐŝŶŐƚŚĞƐƉĂĐĞďĞƚǁĞĞŶ ŝŶĚŝǀŝĚƵĂůƐĂŶĚĚĞĐƌĞĂƐŝŶŐƚŚĞĨƌĞƋƵĞŶĐǇŽĨĐŽŶƚĂĐƚƚŽƌĞĚƵĐĞƚŚĞƌŝƐŬŽĨƐƉƌĞĂĚŝŶŐĂĚŝƐĞĂƐĞ;ŝĚĞĂůůǇƚŽ ŵĂŝŶƚĂŝŶĂƚůĞĂƐƚϲĨĞĞƚďĞƚǁĞĞŶĂůůŝŶĚŝǀŝĚƵĂůƐ͕ĞǀĞŶƚŚŽƐĞǁŚŽĂƌĞĂƐǇŵƉƚŽŵĂƚŝĐͿ͘^ŽĐŝĂůĚŝƐƚĂŶĐŝŶŐ ƐƚƌĂƚĞŐŝĞƐĐĂŶďĞĂƉƉůŝĞĚŽŶĂŶŝŶĚŝǀŝĚƵĂůůĞǀĞů;Ğ͘Ő͕͘ĂǀŽŝĚŝŶŐƉŚǇƐŝĐĂůĐŽŶƚĂĐƚͿ͕ĂŐƌŽƵƉůĞǀĞů;Ğ͘Ő͕͘ ĐĂŶĐĞůŝŶŐŐƌŽƵƉĂĐƚŝǀŝƚŝĞƐǁŚĞƌĞŝŶĚŝǀŝĚƵĂůƐǁŝůůďĞŝŶĐůŽƐĞĐŽŶƚĂĐƚͿ͕ĂŶĚĂŶŽƉĞƌĂƚŝŽŶĂůůĞǀĞů;Ğ͘Ő͕͘ ƌĞĂƌƌĂŶŐŝŶŐĐŚĂŝƌƐŝŶƚŚĞĚŝŶŝŶŐŚĂůůƚŽŝŶĐƌĞĂƐĞĚŝƐƚĂŶĐĞďĞƚǁĞĞŶƚŚĞŵͿ͘ůƚŚŽƵŐŚƐŽĐŝĂůĚŝƐƚĂŶĐŝŶŐŝƐ ĐŚĂůůĞŶŐŝŶŐƚŽƉƌĂĐƚŝĐĞŝŶĐŽƌƌĞĐƚŝŽŶĂůĂŶĚĚĞƚĞŶƚŝŽŶĞŶǀŝƌŽŶŵĞŶƚƐ͕ŝƚŝƐĂĐŽƌŶĞƌƐƚŽŶĞŽĨƌĞĚƵĐŝŶŐ ƚƌĂŶƐŵŝƐƐŝŽŶŽĨƌĞƐƉŝƌĂƚŽƌǇĚŝƐĞĂƐĞƐƐƵĐŚĂƐKs/Ͳϭϵ͘
^ǇŵƉƚŽŵƐWWE/yϵʹ^ǇŵƉƚŽŵƐŽĨKs/ͲϭϵŝŶĐůƵĚĞĨĞǀĞƌ͕ĐŽƵŐŚ͕ĂŶĚƐŚŽƌƚŶĞƐƐŽĨďƌĞĂƚŚ͘>ŝŬĞ ŽƚŚĞƌƌĞƐƉŝƌĂƚŽƌǇŝŶĨĞĐƚŝŽŶƐ͕Ks/ͲϭϵĐĂŶǀĂƌǇŝŶƐĞǀĞƌŝƚǇĨƌŽŵŵŝůĚƚŽƐĞǀĞƌĞ͘tŚĞŶƐĞǀĞƌĞ͕ ƉŶĞƵŵŽŶŝĂ͕ƌĞƐƉŝƌĂƚŽƌǇĨĂŝůƵƌĞ͕ĂŶĚĚĞĂƚŚĂƌĞƉŽƐƐŝďůĞ͘Ks/ͲϭϵŝƐĂŶŽǀĞůĚŝƐĞĂƐĞ͕ƚŚĞƌĞĨŽƌĞƚŚĞĨƵůů ƌĂŶŐĞŽĨƐŝŐŶƐĂŶĚƐǇŵƉƚŽŵƐ͕ƚŚĞĐůŝŶŝĐĂůĐŽƵƌƐĞŽĨƚŚĞĚŝƐĞĂƐĞ͕ĂŶĚƚŚĞŝŶĚŝǀŝĚƵĂůƐĂŶĚƉŽƉƵůĂƚŝŽŶƐ ŵŽƐƚĂƚƌŝƐŬĨŽƌĚŝƐĞĂƐĞĂŶĚĐŽŵƉůŝĐĂƚŝŽŶƐĂƌĞŶŽƚǇĞƚĨƵůůǇƵŶĚĞƌƐƚŽŽĚ͘DŽŶŝƚŽƌƚŚĞǁĞďƐŝƚĞĨŽƌ ƵƉĚĂƚĞƐŽŶƚŚĞƐĞƚŽƉŝĐƐ͘
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 Ž ŵ ŵ Ƶ Ŷ ŝ ƚ Ǉ  K s /  Ͳ ϭ ϵ  W Ă Ŷ Ě Ğ ŵ ŝ Đ  W ů Ă Ŷ  Ͳ  ƌĞǀ͘Ϯ;DĂǇϳ͕ϮϬϮϬͿ 

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CORECIVIC-MLG000037

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 14 of 89

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 ^ƚĂƌƚŝŶŐŶŽǁ͕ĞǀĞƌǇŽƌĞŝǀŝĐŽŵŵƵŶŝƚǇĨĂĐŝůŝƚǇƐŚŽƵůĚĐƌĞĂƚŝǀĞůǇĂŶĚĂŐŐƌĞƐƐŝǀĞůǇƉƌŽŵŽƚĞƚŚƌĞĞ ŚĞĂůƚŚŚĂďŝƚƐƚŚĂƚŝŶƚĞƌƌƵƉƚĐŽŵŵƵŶŝĐĂďůĞĚŝƐĞĂƐĞĂŶĚǀŝƌƵƐƚƌĂŶƐŵŝƐƐŝŽŶ͗ƌĞŐƵůĂƌŚĂŶĚŚǇŐŝĞŶĞ͕ ƌĞƐƉŝƌĂƚŽƌǇĞƚŝƋƵĞƚƚĞ;ĐŽƵŐŚŝŶŐŽƌƐŶĞĞǌŝŶŐŝŶƚŽĂƐůĞĞǀĞŽƌƚŝƐƐƵĞͿ͖ĂŶĚĂǀŽŝĚŝŶŐƚŽƵĐŚŝŶŐŽŶĞΖƐŵŽƵƚŚ͕ ŶŽƐĞ͕ŽƌĞǇĞƐ͘
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  Ž ŵ ŵ Ƶ Ŷ ŝ ƚ Ǉ  K s /  Ͳ ϭ ϵ  W Ă Ŷ Ě Ğ ŵ ŝ Đ  W ů Ă Ŷ  Ͳ  ƌĞǀ͘Ϯ;DĂǇϳ͕ϮϬϮϬͿ
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CORECIVIC-MLG000038

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 15 of 89

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x tĂƐŚǇŽƵƌŚĂŶĚƐŽĨƚĞŶǁŝƚŚƐŽĂƉĂŶĚǁĂƚĞƌĨŽƌĂƚůĞĂƐƚϮϬƐĞĐŽŶĚƐĞƐƉĞĐŝĂůůǇĂĨƚĞƌǇŽƵŚĂǀĞ ďĞĞŶŝŶĂƉƵďůŝĐƉůĂĐĞ͕ŽƌĂĨƚĞƌďůŽǁŝŶŐǇŽƵƌŶŽƐĞ͕ĐŽƵŐŚŝŶŐ͕ŽƌƐŶĞĞǌŝŶŐ͘
x /ĨƐŽĂƉĂŶĚǁĂƚĞƌĂƌĞŶŽƚƌĞĂĚŝůǇĂǀĂŝůĂďůĞ͕ƵƐĞĂŚĂŶĚƐĂŶŝƚŝǌĞƌƚŚĂƚĐŽŶƚĂŝŶƐĂƚůĞĂƐƚϲϬй ĂůĐŽŚŽů͘ŽǀĞƌĂůůƐƵƌĨĂĐĞƐŽĨǇŽƵƌŚĂŶĚƐĂŶĚƌƵďƚŚĞŵƚŽŐĞƚŚĞƌƵŶƚŝůƚŚĞǇĨĞĞůĚƌǇ͘
x ǀŽŝĚƚŽƵĐŚŝŶŐǇŽƵƌĞǇĞƐ͕ŶŽƐĞ͕ĂŶĚŵŽƵƚŚǁŝƚŚƵŶǁĂƐŚĞĚŚĂŶĚƐ͘
ǀŽŝĚĐůŽƐĞĐŽŶƚĂĐƚ
x ǀŽŝĚĐůŽƐĞĐŽŶƚĂĐƚǁŝƚŚƉĞŽƉůĞǁŚŽĂƌĞƐŝĐŬ x WƵƚĚŝƐƚĂŶĐĞďĞƚǁĞĞŶǇŽƵƌƐĞůĨĂŶĚŽƚŚĞƌƉĞŽƉůĞ͘
o ZĞŵĞŵďĞƌƚŚĂƚƐŽŵĞƉĞŽƉůĞǁŝƚŚŽƵƚƐǇŵƉƚŽŵƐŵĂǇďĞĂďůĞƚŽƐƉƌĞĂĚǀŝƌƵƐ͘ o <ĞĞƉŝŶŐĚŝƐƚĂŶĐĞĨƌŽŵŽƚŚĞƌƐŝƐĞƐƉĞĐŝĂůůǇŝŵƉŽƌƚĂŶƚĨŽƌƉĞŽƉůĞǁŚŽĂƌĞĂƚŚŝŐŚĞƌƌŝƐŬŽĨ
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CORECIVIC-MLG000041

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 18 of 89
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x zŽƵĐŽƵůĚƐƉƌĞĂĚKs/ͲϭϵƚŽŽƚŚĞƌƐĞǀĞŶŝĨǇŽƵĚŽŶŽƚĨĞĞůƐŝĐŬ͘ x ǀĞƌǇŽŶĞƐŚŽƵůĚǁĞĂƌĂĐůŽƚŚĨĂĐĞĐŽǀĞƌǁŚĞŶƚŚĞǇŚĂǀĞƚŽŐŽŽƵƚŝŶƉƵďůŝĐ͕ĨŽƌĞǆĂŵƉůĞƚŽƚŚĞ
ŐƌŽĐĞƌǇƐƚŽƌĞŽƌƚŽƉŝĐŬƵƉŽƚŚĞƌŶĞĐĞƐƐŝƚŝĞƐ͘ o ůŽƚŚĨĂĐĞĐŽǀĞƌŝŶŐƐƐŚŽƵůĚŶŽƚďĞƉůĂĐĞĚŽŶǇŽƵŶŐĐŚŝůĚƌĞŶƵŶĚĞƌĂŐĞϮ͕ĂŶǇŽŶĞǁŚŽŚĂƐ
ƚƌŽƵďůĞďƌĞĂƚŚŝŶŐ͕ŽƌŝƐƵŶĐŽŶƐĐŝŽƵƐ͕ŝŶĐĂƉĂĐŝƚĂƚĞĚŽƌŽƚŚĞƌǁŝƐĞƵŶĂďůĞƚŽƌĞŵŽǀĞƚŚĞŵĂƐŬ ǁŝƚŚŽƵƚĂƐƐŝƐƚĂŶĐĞ͘ x dŚĞĐůŽƚŚĨĂĐĞĐŽǀĞƌŝƐŵĞĂŶƚƚŽƉƌŽƚĞĐƚŽƚŚĞƌƉĞŽƉůĞŝŶĐĂƐĞǇŽƵĂƌĞŝŶĨĞĐƚĞĚ͘ x ŽEKdƵƐĞĂĨĂĐĞŵĂƐŬŵĞĂŶƚĨŽƌĂŚĞĂůƚŚĐĂƌĞǁŽƌŬĞƌ͘ x ŽŶƚŝŶƵĞƚŽŬĞĞƉĂďŽƵƚϲĨĞĞƚďĞƚǁĞĞŶǇŽƵƌƐĞůĨĂŶĚŽƚŚĞƌƐ͘dŚĞĐůŽƚŚĨĂĐĞĐŽǀĞƌŝƐŶŽƚĂ ƐƵďƐƚŝƚƵƚĞĨŽƌƐŽĐŝĂůĚŝƐƚĂŶĐŝŶŐ͘
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x /ĨǇŽƵĂƌĞŝŶĂƉƌŝǀĂƚĞƐĞƚƚŝŶŐĂŶĚĚŽŶŽƚŚĂǀĞŽŶǇŽƵƌĐůŽƚŚĨĂĐĞĐŽǀĞƌŝŶŐ͕ƌĞŵĞŵďĞƌƚŽ ĂůǁĂǇƐĐŽǀĞƌǇŽƵƌŵŽƵƚŚĂŶĚŶŽƐĞǁŝƚŚĂƚŝƐƐƵĞǁŚĞŶǇŽƵĐŽƵŐŚŽƌƐŶĞĞǌĞŽƌƵƐĞƚŚĞŝŶƐŝĚĞŽĨ ǇŽƵƌĞůďŽǁ͘
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CORECIVIC-MLG000042

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 x WƌŽŵŽƚĞŐŽŽĚŚĞĂůƚŚŚĂďŝƚƐĂŵŽŶŐĞŵƉůŽǇĞĞƐĂŶĚƌĞƐŝĚĞŶƚƐ͗ x ZĞŐƵůĂƌŚĂŶĚŚǇŐŝĞŶĞ x ZĞƐƉŝƌĂƚŽƌǇĞƚŝƋƵĞƚƚĞ;ĐŽƵŐŚŝŶŐŽƌƐŶĞĞǌŝŶŐŝŶƚŽƐůĞĞǀĞŽƌƚŝƐƐƵĞͿ x ǀŽŝĚƚŽƵĐŚŝŶŐŽŶĞΖƐĞǇĞƐ͕ŶŽƐĞ͕ŽƌŵŽƵƚŚ x ŽŶĚƵĐƚĨƌĞƋƵĞŶƚĞŶǀŝƌŽŶŵĞŶƚĂůĐůĞĂŶŝŶŐŽĨΗŚŝŐŚƚŽƵĐŚΗĂƌĞĂƐ x ^ĞƉĂƌĂƚĞƚŚĞƐŝĐŬĨƌŽŵƚŚĞǁĞůů͗ o ŝƌĞĐƚĞŵƉůŽǇĞĞƐƚŽƐƚĂǇŚŽŵĞĨƌŽŵǁŽƌŬŝĨƚŚĞǇĂƌĞƐŝĐŬ o ŽŶƚĂĐƚŵĞĚŝĐĂůĂƵƚŚŽƌŝƚŝĞƐŝĨĂƌĞƐŝĚĞŶƚƐĞůĨͲƌĞƉŽƌƚƐŽƌŝƐŝĚĞŶƚŝĨŝĞĚĂƐŚĂǀŝŶŐĐŽƌŽŶĂǀŝƌƵƐ

ƐǇŵƉƚŽŵƐ o /ƐŽůĂƚĞƌĞƐŝĚĞŶƚ;ƐͿŝĚĞŶƚŝĨŝĞĚĂƐŚĂǀŝŶŐĐŽƌŽŶĂǀŝƌƵƐƐǇŵƉƚŽŵƐ͕ŝĨƉŽƐƐŝďůĞ x ƌĞĂƚĞΗƐŽĐŝĂůĚŝƐƚĂŶĐĞΗďĞƚǁĞĞŶƉĞŽƉůĞ͘^ĞĞWWE/yϳĨŽƌƉŽƚĞŶƚŝĂů^ŽĐŝĂůŝƐƚĂŶĐŝŶŐƚĂĐƚŝĐƐ͘ x hƐĞƉĞƌƐŽŶĂůƉƌŽƚĞĐƚŝǀĞĞƋƵŝƉŵĞŶƚ;WWͿĨŽƌĐůŽƐĞĐŽŶƚĂĐƚǁŝƚŚƐƵƐƉĞĐƚĞĚĂŶĚĐŽŶĨŝƌŵĞĚ

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CORECIVIC-MLG000043

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 20 of 89
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x EŽƚŝĨŝĐĂƚŝŽŶŽĨ^ĐƌĞĞŶŝŶŐWƌŽĐĞĚƵƌĞƐĨŽƌƚŚĞWƵďůŝĐĂŶĚsŝƐŝƚŽƌƐ o 'ĞŶĞƌĂů o ǀĂůƵĂƚŝŽŶ o EŽƚŝĨŝĐĂƚŝŽŶ
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x ŵƉůŽǇĞĞDŽŶŝƚŽƌŝŶŐ o ǀĂůƵĂƚŝŽŶ o EŽƚŝĨŝĐĂƚŝŽŶ
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 o ůůŶŽŶͲƌĞƐŝĚĞŶƚƐŵƵƐƚƐĞůĨͲĞǀĂůƵĂƚĞƉƌŝŽƌƚŽĞŶƚĞƌŝŶŐƚŚĞĨĂĐŝůŝƚǇƵƐŝŶŐƚŚĞĨŽůůŽǁŝŶŐĐƌŝƚĞƌŝĂ͗ ϭ͘ ,ĂǀĞǇŽƵƚƌĂǀĞůĞĚŽƵƚƐŝĚĞŽĨƚŚĞhŶŝƚĞĚ^ƚĂƚĞƐĂŶĚƌĞƚƵƌŶĞĚǁŝƚŚŝŶƚŚĞůĂƐƚϭϰĚĂǇƐ͍ Ϯ͘ ,ĂǀĞǇŽƵŚĂĚĐůŽƐĞĐŽŶƚĂĐƚǁͬĂŶǇŽŶĞĚŝĂŐŶŽƐĞĚǁͬƚŚĞKs/ͲϭϵŝůůŶĞƐƐǁŝƚŚŝŶƚŚĞůĂƐƚ ϭϰĚĂǇƐ͍ ϯ͘ ,ĂǀĞǇŽƵƌĞƚƵƌŶĞĚĨƌŽŵh^DŝůŝƚĂƌǇŽƌEĂƚŝŽŶĂů'ƵĂƌĚĚĞƉůŽǇŵĞŶƚƌĞůĂƚĞĚƚŽƚŚĞ Ks/ͲϭϵƌĞƐƉŽŶƐĞǁŝƚŚŝŶƚŚĞůĂƐƚϭϰĚĂǇƐ͍ ϰ͘ /ŶƚŚĞůĂƐƚϮϰŚŽƵƌƐŚĂǀĞǇŽƵĞǆƉĞƌŝĞŶĐĞĚĂŶǇŽĨƚŚĞĨŽůůŽǁŝŶŐƐǇŵƉƚŽŵƐ͗ x ^ƵďũĞĐƚŝǀĞ&ĞǀĞƌ;ĨĞůƚĨĞǀĞƌŝƐŚͿ͍
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CORECIVIC-MLG000044

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 21 of 89

 x EĞǁŽĨǁŽƌƐĞŶŝŶŐŽƵŐŚ͍ x ^ŚŽƌƚŶĞƐƐŽĨƌĞĂƚŚ͍ x ŚŝůůƐ͍ x ^ŽƌĞdŚƌŽĂƚ͍ x ŝĂƌƌŚĞĂ͍ ϱ͘ ƌĞǇŽƵĞǆƉĞƌŝĞŶĐŝŶŐĂŶĞůĞǀĂƚĞĚďŽĚǇƚĞŵƉĞƌĂƚƵƌĞŽĨшϭϬϬ͘ϰΣ&͍ ϲ͘ /ĨĂƉĞƌƐŽŶͬǀŝƐŝƚŽƌŵĞĞƚƐĐƌŝƚĞƌŝĂϭ͕ϮŽƌϯ;ĞǆƉŽƐƵƌĞƌŝƐŬͿ͕ĞŶƚƌǇƚŽƚŚĞĨĂĐŝůŝƚǇŝƐŶŽƚ
ƉĞƌŵŝƚƚĞĚĂŶĚƚŚĞƉĞƌƐŽŶƐŚŽƵůĚďĞĚŝƌĞĐƚĞĚƚŽŶŽƚŝĨǇĂƉƉƌŽƉƌŝĂƚĞŵĞĚŝĐĂůĂƵƚŚŽƌŝƚŝĞƐ͘ ϳ͘ /ĨƚŚĞƉĞƌƐŽŶͬǀŝƐŝƚŽƌƐĞůĨͲƌĞƉŽƌƚƐĂƚĞŵƉĞƌĂƚƵƌĞŽĨшϭϬϬ͘ϰΣ&ŽƌĂŶƐǁĞƌƐǇĞƐƚŽĂŶǇ
ƋƵĞƐƚŝŽŶŝŶϰĂďŽǀĞ;ƐǇŵƉƚŽŵƐͿ͕ĞŶƚƌǇƚŽƚŚĞĨĂĐŝůŝƚǇŝƐŶŽƚƉĞƌŵŝƚƚĞĚĂŶĚƚŚĞƉĞƌƐŽŶ
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ϭ͘ ŽĞƐƚŚĞƌĞƐŝĚĞŶƚŚĂǀĞĂďŽĚǇƚĞŵƉĞƌĂƚƵƌĞŽĨшϭϬϬ͘ϰΣ&͍ x dŚĞƌĞƐŝĚĞŶƚΖƐƚĞŵƉĞƌĂƚƵƌĞƐŚŽƵůĚďĞƚĂŬĞŶǁŚĞŶƚŚĞǇĞŶƚĞƌƚŚĞĨĂĐŝůŝƚǇ͘/ĨƚŚĞ
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ďĞůŽǁ͗ o ZĞĐŽƌĚŝŶŝƚŝĂůƚĞŵƉĞƌĂƚƵƌĞŽĨƚŚĞƌĞƐŝĚĞŶƚĂŶĚƚŝŵĞŽĨĚĂǇǁŚĞŶƚŚĞƌĞĂĚŝŶŐ
ǁĂƐƚĂŬĞŶ o ƐŬƚŚĞƌĞƐŝĚĞŶƚƚŽǁĂŝƚŝŶĂĚĞƐŝŐŶĂƚĞĚĂƌĞĂĂƚŽƌŶĞĂƌƚŚĞĞŶƚƌĂŶĐĞ;ǁŝƚŚŝŶƚŚĞ
ďƵŝůĚŝŶŐͿ o tĂŝƚϭϬŵŝŶƵƚĞƐĂŶĚƚĂŬĞƚŚĞƌĞƐŝĚĞŶƚΖƐƚĞŵƉĞƌĂƚƵƌĞĂŐĂŝŶ o /ĨƚŚĞƌĞƐŝĚĞŶƚΖƐƚĞŵƉĞƌĂƚƵƌĞŝƐƐƚŝůůĞůĞǀĂƚĞĚŚĂǀĞƚŚĞƌĞƐŝĚĞŶƚǁĂŝƚĂŶ
ĂĚĚŝƚŝŽŶĂůϮϬŵŝŶƵƚĞƐ o /ĨƚŚĞƌĞƐŝĚĞŶƚΖƐƚĞŵƉĞƌĂƚƵƌĞŝƐшϭϬϬ͘ϰΣ&ĂĨƚĞƌϯϬŵŝŶƵƚĞƐ͕ŝŶŝƚŝĂƚĞŝƐŽůĂƚŝŽŶĂŶĚ
ŶŽƚŝĨŝĐĂƚŝŽŶƉƌŽƚŽĐŽů Ϯ͘ ,ĂƐƚŚĞƌĞƐŝĚĞŶƚďĞĞŶŝŶĐůŽƐĞĐŽŶƚĂĐƚǁͬĂŶǇŽŶĞĚŝĂŐŶŽƐĞĚǁͬƚŚĞKs/ͲϭϵŝůůŶĞƐƐ
ǁŝƚŚŝŶƚŚĞůĂƐƚϭϰĚĂǇƐ͍ x ,ĂƐƚŚĞƌĞƐŝĚĞŶƚďĞĞŶŶŽƚŝĨŝĞĚŽĨĂƉŽƐŝƚŝǀĞKs/ͲϭϵĐĂƐĞĂƚƚŚĞŝƌƉůĂĐĞŽĨ
ĞŵƉůŽǇŵĞŶƚ͕ƐĐŚŽŽů͕ŽĨĨƐŝƚĞƚƌĞĂƚŵĞŶƚĨĂĐŝůŝƚǇ͕ŚŽŵĞ͕ŽƌĂŶǇŽƚŚĞƌůŽĐĂƚŝŽŶƚŚĞ
ƌĞƐŝĚĞŶƚĨƌĞƋƵĞŶƚƐ͍,ĂƐƚŚĞƌĞƐŝĚĞŶƚďĞĞŶŝŶĐůŽƐĞĐŽŶƚĂĐƚǁŝƚŚƚŚĞƉŽƐŝƚŝǀĞKs/Ͳ
ϭϵĐĂƐĞ͍

 Ž ŵ ŵ Ƶ Ŷ ŝ ƚ Ǉ  K s /  Ͳ ϭ ϵ  W Ă Ŷ Ě Ğ ŵ ŝ Đ  W ů Ă Ŷ  Ͳ  ƌĞǀ͘Ϯ;DĂǇϳ͕ϮϬϮϬͿ 

W Ă Ő Ğ ϭϯͮϰϬ

CORECIVIC-MLG000045

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 22 of 89
 ϯ͘ /ŶƚŚĞůĂƐƚϮϰŚŽƵƌƐŚĂƐƚŚĞƌĞƐŝĚĞŶƚĞǆƉĞƌŝĞŶĐĞĚĂŶǇŽĨƚŚĞĨŽůůŽǁŝŶŐƐǇŵƉƚŽŵƐ͗
x ^ƵďũĞĐƚŝǀĞ&ĞǀĞƌ;ĨĞůƚĨĞǀĞƌŝƐŚͿ͍ x EĞǁŽƌǁŽƌƐĞŶŝŶŐŽƵŐŚ͍ x ^ŚŽƌƚŶĞƐƐŽĨƌĞĂƚŚ͍ x ŚŝůůƐ͍ x ^ŽƌĞdŚƌŽĂƚ͍ x ŝĂƌƌŚĞĂ͍ ϰ͘ /ĨĂƌĞƐŝĚĞŶƚŵĞĞƚƐĐƌŝƚĞƌŝĂϭŽƌϮĂďŽǀĞ͕ŝŶŝƚŝĂƚĞŝƐŽůĂƚŝŽŶĂŶĚŶŽƚŝĨŝĐĂƚŝŽŶƉƌŽƚŽĐŽů͘ ϱ͘ /ĨĂƌĞƐŝĚĞŶƚŚĂƐĂŶĞůĞǀĂƚĞĚƚĞŵƉĞƌĂƚƵƌĞ;ďƵƚďĞůŽǁϭϬϬ͘ϰΣ&ͿĂŶĚĂŶǇƚǁŽŽƚŚĞƌ ƐǇŵƉƚŽŵƐ͕ŝŶŝƚŝĂƚĞŝƐŽůĂƚŝŽŶĂŶĚŶŽƚŝĨŝĐĂƚŝŽŶƉƌŽƚŽĐŽů͘ ϲ͘ ŽŵƉůĞƚĞƚŚĞŽƌŽŶĂǀŝƌƵƐ;Ks/ͲϭϵͿZĞƐŝĚĞŶƚ^ĐƌĞĞŶŝŶŐ>ŽŐʹWWE/yϯƚŽ ĚŽĐƵŵĞŶƚƚŚĞƐĐƌĞĞŶŝŶŐǁĂƐĐŽŵƉůĞƚĞĚ͘ ϳ͘ hƚŝůŝǌĞƚŚĞWWE/yϯĨŽƌŵƵŶůĞƐƐĚŝƌĞĐƚĞĚďǇƚŚĞĐŽŶƚƌĂĐƚƉĂƌƚŶĞƌƚŽƵƐĞĂƐƉĞĐŝĨŝĐ ĨŽƌŵĨŽƌƌĞƐŝĚĞŶƚƐĐƌĞĞŶŝŶŐ͘dŚĞKWĂƉƉƌŽǀĞĚƌĞƐŝĚĞŶƚƐĐƌĞĞŶŝŶŐĨŽƌŵĐĂŶďĞĨŽƵŶĚ ĂƚƚŚĞĞŶĚŽĨƚŚŝƐĚŽĐƵŵĞŶƚ͘  x /ƐŽůĂƚŝŽŶ  o ^ǇŵƉƚŽŵĂƚŝĐ;ĚŝƐƉůĂǇŝŶŐĂŶǇŽĨƚŚĞĂďŽǀĞƐǇŵƉƚŽŵƐͿ͗ x ,ĂǀĞƚŚĞƌĞƐŝĚĞŶƚĚŽŶĂŶĞǁƐƵƌŐŝĐĂůŵĂƐŬĂŶĚŵŝŶŝŵŝǌĞƉƌŽǆŝŵŝƚǇƚŽƐƚĂĨĨĂŶĚŽƚŚĞƌ ƌĞƐŝĚĞŶƚƐ͘/ĨĂƐƵƌŐŝĐĂůŵĂƐŬŝƐŶŽƚĂǀĂŝůĂďůĞ͕ƚŚĞƌĞƐŝĚĞŶƚŵĂǇďĞŐŝǀĞŶĂEͲϵϱƌĞƐƉŝƌĂƚŽƌ ĂƐĂůĂƐƚƌĞƐŽƌƚ͘ x /ĨĨĞĂƐŝďůĞ͕ŚĂǀĞƚŚĞƌĞƐŝĚĞŶƚǁĂŝƚŽƵƚƐŝĚĞŽĨƚŚĞĨĂĐŝůŝƚǇƵŶƚŝůŶŽƚŝĨŝĐĂƚŝŽŶƐĂƌĞŵĂĚĞĂŶĚ ĚŝƌĞĐƚŝŽŶŝƐƉƌŽǀŝĚĞĚ͘/ĨǁĂŝƚŝŶŐŽƵƚƐŝĚĞŝƐŶŽƚĨĞĂƐŝďůĞ͕ŝƐŽůĂƚĞƚŚĞƌĞƐŝĚĞŶƚŝŶƐŝĚĞƚŚĞ ĨĂĐŝůŝƚǇƵŶƚŝůĚŝƌĞĐƚŝŽŶŝƐƌĞĐĞŝǀĞĚŽƌƚƌĂŶƐƉŽƌƚŚĂƐďĞĞŶĂƌƌĂŶŐĞĚ͘ x /ĨĚŝƌĞĐƚĞĚƚŽĚŽƐŽ͕ŚŽƵƐĞƚŚĞƌĞƐŝĚĞŶƚŝŶŝĚĞŶƚŝĨŝĞĚŝƐŽůĂƚŝŽŶůŽĐĂƚŝŽŶŝĨĂǀĂŝůĂďůĞ͘/Ĩ ƵŶĂďůĞƚŽŚŽƵƐĞƌĞƐŝĚĞŶƚŝŶĂŶŝƐŽůĂƚŝŽŶĂƌĞĂ͕ĐŽŶƚĂĐƚĐŽŶƚƌĂĐƚƉĂƌƚŶĞƌĨŽƌĚŝƌĞĐƚŝŽŶ͘ x ,ĂǀĞƚŚĞƌĞƐŝĚĞŶƚĚŽŶĂŶĞǁƐƵƌŐŝĐĂůŵĂƐŬĂŶĚƚŽƚŚĞĞǆƚĞŶƚƉŽƐƐŝďůĞŵŝŶŝŵŝǌĞ ƉƌŽǆŝŵŝƚǇƚŽƐƚĂĨĨĂŶĚŽƚŚĞƌƌĞƐŝĚĞŶƚƐ͘ x DŽŶŝƚŽƌƌĞƐŝĚĞŶƚĚĂŝůǇ͕ĚŽĐƵŵĞŶƚŝŶŐĞǀĂůƵĂƚŝŽŶĐƌŝƚĞƌŝĂƵƐĞĚĨŽƌĂůůƌĞƐŝĚĞŶƚƐĞŶƚĞƌŝŶŐ ƚŚĞĨĂĐŝůŝƚǇ͘ůůĞŵƉůŽǇĞĞƐĞƐĐŽƌƚŝŶŐ͕ĞǀĂůƵĂƚŝŶŐ͕ŽƌŽƚŚĞƌǁŝƐĞŝŶĐůŽƐĞƉƌŽǆŝŵŝƚǇƚŽƚŚĞ ƌĞƐŝĚĞŶƚƐŚŽƵůĚĚŽŶĂƉƉƌŽƉƌŝĂƚĞWWĂƐŽƵƚůŝŶĞĚŝŶWWE/yϴ͘ x ŽŶƚŝŶƵĞŝƐŽůĂƚŝŽŶĂŶĚŵŽŶŝƚŽƌŝŶŐƵŶƚŝůϭϰĚĂǇƐĂĨƚĞƌƉŽƐƐŝďůĞĞǆƉŽƐƵƌĞĚĂƚĞŽƌƵŶƚŝů ĚŝƌĞĐƚĞĚŽƚŚĞƌǁŝƐĞďǇƚŚĞĐŽŶƚƌĂĐƚƉĂƌƚŶĞƌŽƌ,ĞĂůƚŚĐĂƌĞWƌŽĨĞƐƐŝŽŶĂů͘ x >ŝŵŝƚƌĞƐŝĚĞŶƚΖƐŵŽǀĞŵĞŶƚǁŚŝůĞŝŶĨĂĐŝůŝƚǇ;ĚĞůŝǀĞƌŵĞĂůƐ͕ŵĞĚŝĐĂƚŝŽŶƐ͕ĞƚĐ͘Ϳ͘  o ƐǇŵƉƚŽŵĂƚŝĐ;ŶŽƚĚŝƐƉůĂǇŝŶŐƐǇŵƉƚŽŵƐďƵƚŚĂƐďĞĞŶŝŶĐůŽƐĞĐŽŶƚĂĐƚǁͬƐŽŵĞŽŶĞŬŶŽǁŶ ƚŽďĞKs/ͲϭϵƉŽƐŝƚŝǀĞͿ͗ x /ĨĨĞĂƐŝďůĞ͕ŚĂǀĞƚŚĞƌĞƐŝĚĞŶƚǁĂŝƚŽƵƚƐŝĚĞŽĨƚŚĞĨĂĐŝůŝƚǇƵŶƚŝůŶŽƚŝĨŝĐĂƚŝŽŶƐĂƌĞŵĂĚĞĂŶĚ ĚŝƌĞĐƚŝŽŶŝƐƉƌŽǀŝĚĞĚ͘/ĨǁĂŝƚŝŶŐŽƵƚƐŝĚĞŝƐŶŽƚĨĞĂƐŝďůĞ͕ŝƐŽůĂƚĞƚŚĞƌĞƐŝĚĞŶƚŝŶƐŝĚĞƚŚĞ ĨĂĐŝůŝƚǇƵŶƚŝůĚŝƌĞĐƚŝŽŶŝƐƌĞĐĞŝǀĞĚŽƌƚƌĂŶƐƉŽƌƚŚĂƐďĞĞŶĂƌƌĂŶŐĞĚ͘ x /ĨĚŝƌĞĐƚĞĚƚŽĚŽƐŽ͕ŚŽƵƐĞƚŚĞƌĞƐŝĚĞŶƚŝŶŝĚĞŶƚŝĨŝĞĚŝƐŽůĂƚŝŽŶůŽĐĂƚŝŽŶŝĨĂǀĂŝůĂďůĞ͘/Ĩ ƵŶĂďůĞƚŽŚŽƵƐĞƌĞƐŝĚĞŶƚŝŶĂŶŝƐŽůĂƚŝŽŶĂƌĞĂ͕ĐŽŶƚĂĐƚĐŽŶƚƌĂĐƚƉĂƌƚŶĞƌĨŽƌĚŝƌĞĐƚŝŽŶ͘ x ,ĂǀĞƚŚĞƌĞƐŝĚĞŶƚĚŽŶĂŶĞǁƐƵƌŐŝĐĂůŵĂƐŬĂŶĚƚŽƚŚĞĞǆƚĞŶƚƉŽƐƐŝďůĞŵŝŶŝŵŝǌĞ ƉƌŽǆŝŵŝƚǇƚŽƐƚĂĨĨĂŶĚŽƚŚĞƌƌĞƐŝĚĞŶƚƐ͘
 Ž ŵ ŵ Ƶ Ŷ ŝ ƚ Ǉ  K s /  Ͳ ϭ ϵ  W Ă Ŷ Ě Ğ ŵ ŝ Đ  W ů Ă Ŷ  Ͳ  ƌĞǀ͘Ϯ;DĂǇϳ͕ϮϬϮϬͿ W Ă Ő Ğ ϭϰͮϰϬ
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CORECIVIC-MLG000046

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 23 of 89
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ĞŵƉůŽǇĞĞƐƚŽŬĞĞƉĂĐŽŵĨŽƌƚĂďůĞĚŝƐƚĂŶĐĞďĞƚǁĞĞŶƚŚĞŵƐĞůǀĞƐ͘ o dŚĞĞŵƉůŽǇĞĞĐŽŶĚƵĐƚŝŶŐƚŚĞƚĞŵƉĞƌĂƚƵƌĞĐŚĞĐŬǁŝůůǁĞĂƌWWĂƐŽƵƚůŝŶĞĚŝŶWWE/y
ϴ͘dŽƚŚĞĞǆƚĞŶƚƚŚĂƚŝƐƌĞƋƵŝƌĞĚďǇůĂǁŽƌƉĂƌƚŶĞƌ͕ƚŚĞĚĞƐŝŐŶĂƚĞĚƐƚĂĨĨŵĞŵďĞƌĐŽŶĚƵĐƚŝŶŐ ƚŚĞƚĞŵƉĞƌĂƚƵƌĞĐŚĞĐŬŽƌƐĐƌĞĞŶŝŶŐƋƵĞƐƚŝŽŶŶĂŝƌĞͬƚŽŽůŵƵƐƚǁĞĂƌĂŶǇŶĞĐĞƐƐĂƌǇWW
ƌĞĐŽŵŵĞŶĚĞĚͬƌĞƋƵŝƌĞĚďǇƚŚĞĐƵƐƚŽŵĞƌĂŶĚͬŽƌƐƚĂƚĞĂŶĚĨĞĚĞƌĂůK^,ĨŽƌƉƵƌƉŽƐĞƐŽĨ ĐŽŶĚƵĐƚŝŶŐƐƵĐŚƐĐƌĞĞŶƐ͘
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 Ž ŵ ŵ Ƶ Ŷ ŝ ƚ Ǉ  K s /  Ͳ ϭ ϵ  W Ă Ŷ Ě Ğ ŵ ŝ Đ  W ů Ă Ŷ  Ͳ  ƌĞǀ͘Ϯ;DĂǇϳ͕ϮϬϮϬͿ 

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CORECIVIC-MLG000048

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 25 of 89
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o hŶůĞƐƐƌĞƋƵŝƌĞĚďǇƚŚĞĨĂĐŝůŝƚǇΖƐƉĂƌƚŶĞƌ͕ĨŽƌŵWWE/yϮƐŚŽƵůĚďĞĐŽŵƉůĞƚĞĚďǇƚŚĞ ƐĐƌĞĞŶĞƌKE>zŝĨĂŶĞŵƉůŽǇĞĞĂŶƐǁĞƌƐĂĨĨŝƌŵĂƚŝǀĞůǇƚŽĂŶǇŽĨƚŚĞƐĐƌĞĞŶŝŶŐƋƵĞƐƚŝŽŶƐŽƌŝĨ ƚŚĞǇŚĂǀĞĂĨĞǀĞƌŝŶĞǆĐĞƐƐŽĨϭϬϬ͘ϰĚĞŐƌĞĞƐ͘tŚĞŶĐŽŵƉůĞƚŝŶŐƚŚĞĨŽƌŵ͕ƚŚĞĚĞƐŝŐŶĂƚĞĚ ĞŵƉůŽǇĞĞƐĐƌĞĞŶĞƌƐŚŽƵůĚŽŶůǇƵƐĞƚŚĞĞŵƉůŽǇĞĞ/ŶƵŵďĞƌ͘ŽŵƉůĞƚĞƚŚĞĨŽƌŵĂŶĚ ĐŽŶƚĂĐƚƚŚĞŵŽƐƚƐĞŶŝŽƌ,ZWƌŽĨĞƐƐŝŽŶĂůĂƚƚŚĞĨĂĐŝůŝƚǇŽƌĚĞƐŝŐŶĞĞƚŽĚĞƐŝŐŶĂƚĞŶĞĐĞƐƐĂƌǇ ůĞĂǀĞŽĨĂďƐĞŶĐĞƐƚĂƚƵƐ͘ 
x EŽƚŝĨŝĐĂƚŝŽŶ 
o /ŶƚŚĞĞǀĞŶƚƚŚĂƚĂƐǇŵƉƚŽŵŽĨKs/ͲϭϵŝƐŝĚĞŶƚŝĨŝĞĚ͕ƚŚĞŝŶĨŽƌŵĂƚŝŽŶƐŚŽƵůĚďĞƌĞƉŽƌƚĞĚ ƚŽƚŚĞ,ƵŵĂŶZĞƐŽƵƌĐĞƐDĂŶĂŐĞƌ;ŝĨ,ZDŝƐŶŽƚƉƌĞƐĞŶƚĂƚƚŚĞƚŝŵĞͿĂŶĚĂƉƉƌŽƉƌŝĂƚĞ ĚĞƐŝŐŶĂƚĞĚKƚĞĂŵŵĞŵďĞƌƐŽƚŚĂƚƚŚŽƐĞǁŚŽŵĞĞƚĐƌŝƚĞƌŝĂƚŽďĞƐĞŶƚŚŽŵĞĂƌĞ ĂƉƉƌŽǀĞĚƚŽďĞƉůĂĐĞĚŽŶůĞĂǀĞĂŶĚĂƌĞŐŝǀĞŶĂƉƉƌŽƉƌŝĂƚĞŝŶƐƚƌƵĐƚŝŽŶ͘
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CORECIVIC-MLG000049

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 26 of 89
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x ǀĂůƵĂƚŝŽŶ͗ o ůůǀĞŶĚŽƌƐͬĐŽŶƚƌĂĐƚŽƌƐǁŝůůďĞĞǀĂůƵĂƚĞĚƵƐŝŶŐƚŚĞĐƌŝƚĞƌŝĂĂďŽǀĞƵŶĚĞƌEKd/&/d/KEK& ^ZE/E'WZKhZ^&KZd,'EZ>Wh>/͕ĞǀĞŶŝĨǀĞŶĚŽƌͬĐŽŶƚƌĂĐƚŽƌŚĂƐƐĞůĨͲ ĞǀĂůƵĂƚĞĚŝŶĂĚǀĂŶĐĞ͘ o ůůǀĞŶĚŽƌƐͬĐŽŶƚƌĂĐƚŽƌƐƚŚĂƚƐĞůĨͲĞǀĂůƵĂƚĞĂŶĚĞŶƚĞƌƚŚĞĨĂĐŝůŝƚǇǁŝůůƐƚŝůůďĞƌĞƋƵŝƌĞĚƚŽ ǀĞƌďĂůůǇĂŶƐǁĞƌƚŚĞĂďŽǀĞƋƵĞƐƚŝŽŶƐĂƐŬĞĚďǇĂŽƌĞŝǀŝĐĞŵƉůŽǇĞĞĂƚƚŚĞĨĂĐŝůŝƚǇĞŶƚƌĂŶĐĞ ŽƌůŽďďǇĂŶĚŚĂǀĞƚŚĞŝƌƚĞŵƉĞƌĂƚƵƌĞĐŚĞĐŬĞĚƉĞƌWWE/yϮƌĞŐĂƌĚůĞƐƐŽĨƚŚĞŝƌƐĞůĨͲ ĞǀĂůƵĂƚŝŽŶƌĞƐƵůƚƐ͘ o ŶǇƐǇŵƉƚŽŵĂƚŝĐŽƌĂƐǇŵƉƚŽŵĂƚŝĐǀĞŶĚŽƌͬĐŽŶƚƌĂĐƚŽƌǁŝůůďĞĂƐŬĞĚƚŽůĞĂǀĞƚŚĞƉƌĞŵŝƐĞƐ ŝŵŵĞĚŝĂƚĞůǇ͘
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CORECIVIC-MLG000050

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 27 of 89

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ŵĞŵďĞƌǁŝůůŶŽƚŝĨǇƚŚĞKƉĞƌĂƚŝŽŶƐ^ƵƉĞƌǀŝƐŽƌǁŚŽǁŝůů;ŝĨƌĞƋƵŝƌĞĚŽƌĂƉƉƌŽƉƌŝĂƚĞƉĞƌƚŚĞ ĨĂĐŝůŝƚǇƉŽůŝĐŝĞƐͬƉƌŽĐĞĚƵƌĞƐͿ͗  /ŶŝƚŝĂƚĞĂĚŝƐĐŝƉůŝŶĂƌǇƌĞƉŽƌƚĨŽƌĨĂŝůƵƌĞƚŽĨŽůůŽǁĨĂĐŝůŝƚǇƌƵůĞƐŽƌƉĂƌƚŶĞƌŵĂŶĚĂƚĞĚ
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ƌĞƉƌĞƐĞŶƚĂƚŝǀĞĂŶĚƌĞƋƵĞƐƚĂǁƌŝƚƚĞŶƐƵďŵŝƐƐŝŽŶďĞŵĂĚĞƚŽƉůĂĐĞƚŚĞƌĞƐŝĚĞŶƚŽŶϳϮ ŚŽƵƌƌĞƐƚƌŝĐƚĞĚŵŽǀĞŵĞŶƚ͘  /ŶŝƚŝĂƚĞĂŶ/ŶĐŝĚĞŶƚZĞƉŽƌƚ͘  ^ŚŽƵůĚƚŚĞƌĞƐŝĚĞŶƚƌĞĐĞŝǀĞŵŽƌĞƚŚĂŶŽŶĞĚŝƐĐŝƉůŝŶĂƌǇĂŶĚͬŽƌ/ZƌĞůĂƚĞĚƚŽĨĂŝůƵƌĞƚŽ ǁĞĂƌĂŵĂƐŬŝŶƚŚĞĐŽŵŵƵŶŝƚǇŽƌǀĞŚŝĐůĞĂƌĞƋƵĞƐƚǁŝůůďĞƐƵďŵŝƚƚĞĚƚŽŚĂǀĞƚŚĞ ƌĞƐŝĚĞŶƚƌĞƐƚƌŝĐƚĞĚĨƌŽŵďĞŝŶŐĂďůĞƚŽŚĂǀĞĂƉƉƌŽǀĞĚ^ĐŚĞĚƵůĞƐͬWĂƐƐĞƐŽƚŚĞƌƚŚĂŶ ǀĞƌŝĨŝĞĚŵĞĚŝĐĂůĂƉƉŽŝŶƚŵĞŶƚƐ͘ x dŚĞǀĂŶǁŝůůďĞĐůĞĂŶĞĚĂŶĚĚŝƐŝŶĨĞĐƚĞĚĂĨƚĞƌĞĂĐŚƚƌĂŶƐƉŽƌƚƚƌŝƉĂĐĐŽƌĚŝŶŐƚŽWWE/yϲ͘ x ůůƌĞƐŝĚĞŶƚƐǁŝůůďĞƐĐƌĞĞŶĞĚƉĞƌƚŚĞZĞƐŝĚĞŶƚDŽŶŝƚŽƌŝŶŐƐĞĐƚŝŽŶŽĨƚŚŝƐĚŽĐƵŵĞŶƚƵƉŽŶ ƌĞƚƵƌŶ͘ x dŚĞĚƌŝǀĞƌǁŝůůďĞƐĐƌĞĞŶĞĚƉĞƌWWE/yϮƵƉŽŶĐŽŵƉůĞƚŝŽŶŽĨƚŚĞƚƌĂŶƐƉŽƌƚ;ƐͿ͘ x dƌĂŶƐƉŽƌƚƐƌĞůĂƚĞĚƚŽƉŝĐŬŝŶŐƵƉƌĞƐŝĚĞŶƚƐĨŽƌ/ŶƚĂŬĞƐŚŽƵůĚĨŽůůŽǁƚŚŽƐĞƐĂŵĞƐƚĞƉƐĂďŽǀĞ ƌĞŐĂƌĚŝŶŐŵĂƐŬƐ͕ƐŽĐŝĂůĚŝƐƚĂŶĐŝŶŐƚŽƚŚĞĞǆƚĞŶƚƉŽƐƐŝďůĞ͕ĂŶĚƚŚĞǀĞŚŝĐůĞĐůĞĂŶŝŶŐĂŶĚ ĚŝƐŝŶĨĞĐƚŝŶŐƉƌŽĐĞƐƐ͘ x ^ŚŽƵůĚĂƌĞƐŝĚĞŶƚƉƌĞƐĞŶƚŝůůŶĞƐƐĚƵƌŝŶŐƚŚĞ/ŶƚĂŬĞƚƌĂŶƐƉŽƌƚƚŚĞĚƌŝǀĞƌǁŝůů͗  ƚƚĞŵƉƚƚŽƐĞƉĂƌĂƚĞƚŚĂƚƌĞƐŝĚĞŶƚĨƌŽŵŚŝŵͬŚĞƌƐĞůĨĂŶĚƚŚĞŽƚŚĞƌƌĞƐŝĚĞŶƚƐĂƐŵƵĐŚĂƐ ƉŽƐƐŝďůĞ͘  ŶƐƵƌĞĞǀĞƌǇŽŶĞŝŶƚŚĞǀĞŚŝĐůĞŝƐǁĞĂƌŝŶŐĂŵĂƐŬ͘  WƵůůŽǀĞƌƚŽĂƐĂĨĞƐƚŽƉ͕ĐĂůůƚŚĞĨĂĐŝůŝƚǇƐŚŝĨƚƐƵƉĞƌǀŝƐŽƌŽƌKĂŶĚĂĚǀŝƐĞŽĨƚŚĞ ƌĞƐŝĚĞŶƚΖƐƐǇŵƉƚŽŵƐ͘ĚĞƚĞƌŵŝŶĂƚŝŽŶǁŝůůďĞŵĂĚĞĂƚƚŚĂƚƉŽŝŶƚǁŚĞƚŚĞƌƚŽĐĂůůϵϭϭŽƌ ĐŽŶƚŝŶƵĞǁŝƚŚƚŚĞƚƌĂŶƐƉŽƌƚ͘
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ŵŝŶŝŵŝǌĞĞǆƉŽƐƵƌĞƚŽƐƵƐƉĞĐƚĞĚŽƌĐŽŶĨŝƌŵĞĚKs/ͲϭϵƉĞƌƐŽŶƐ͘ o EͲϵϱƌĞƐƉŝƌĂƚŽƌƐƉƌŽǀŝĚĞĚƚŽĞĂĐŚĨĂĐŝůŝƚǇĂƌĞŶŽƚĨŽƌĚĂŝůǇƵƐĞďƵƚĨŽƌƚĂƌŐĞƚĞĚƵƐĞŝĨ͕ĂŶĚ
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ĐŽŶĨŝƌŵĞĚƚŽŚĂǀĞKs/Ͳϭϵ͘  /ŶŽƌĚĞƌĨŽƌƚŚĞEͲϵϱƌĞƐƉŝƌĂƚŽƌƚŽƉƌŽǀŝĚĞŵĂǆŝŵƵŵĞĨĨĞĐƚŝǀĞŶĞƐƐ͕ƚŚĞǁĞĂƌĞƌƐŚŽƵůĚ
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x dŚĞƌĞƐƉŝƌĂƚŽƌƐĂƌĞƚŽďĞƐĞĐƵƌĞĚĂŶĚĐůŽƐĞůǇŵĂŶĂŐĞĚĚƵĞƚŽƚŚĞĐŽƐƚĂŶĚĚĞŵĂŶĚ ŝŶƚŚĞƉƵďůŝĐ͘
x hŶƚŝůĞŵƉůŽǇĞĞƐĂƌĞŵĞĚŝĐĂůůǇĐůĞĂƌĞĚĂŶĚĨŝƚƚĞƐƚĞĚ͕ĨĂĐŝůŝƚŝĞƐƐŚŽƵůĚƵƐĞƚŚĞŝƌďĞƐƚ ũƵĚŐĞŵĞŶƚǁŚĞŶƵƐŝŶŐEͲϵϱƌĞƐƉŝƌĂƚŽƌƐ͘
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CORECIVIC-MLG000052

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ƚŚĞĨŽůůŽǁŝŶŐƌĞƐŽƵƌĐĞƐŽƌƌĞĂĐŚŽƵƚƚŽǇŽƵƌĚŝƌĞĐƚƐƵƉĞƌǀŝƐŽƌĂƐŶĞĞĚĞĚ͘ o 'ĞŶĞƌĂůƋƵĞƐƚŝŽŶƐĐĂŶďĞƐƵďŵŝƚƚĞĚƚŽƚŚĞĨŽůůŽǁŝŶŐŝŶƚĞƌŶĂůĞŵĂŝů  ĐŽƌŽŶĂǀŝƌƵƐŝŶƋƵŝƌǇΛĐŽƌĞĐŝǀŝĐ͘ĐŽŵ o /ŶĨŽƌŵĂƚŝŽŶĂůƌĞƐŽƵƌĐĞƐĐĂŶďĞĨŽƵŶĚŽŶƚŚĞŽƌĞŝǀŝĐŝŶƚƌĂŶĞƚƐŝƚĞĂƚ͗  KƉĞƌĂƚŝŽŶƐŽƌŽŶĂǀŝƌƵƐ^ŚĂƌĞWŽŝŶƚ^ŝƚĞ o dŚĞĞŶƚĞƌƐĨŽƌŝƐĞĂƐĞŽŶƚƌŽůĂŶĚWƌĞǀĞŶƚŝŽŶǁĞďƐŝƚĞŝŶĐůƵĚĞƐŵĂŶǇŝŶĨŽƌŵĂƚŝǀĞ

ƌĞƐŽƵƌĐĞƐ͗  ŚƚƚƉƐ͗ͬͬǁǁǁ͘ĐĚĐ͘ŐŽǀͬ
o dŚĞKĐĐƵƉĂƚŝŽŶĂů^ĂĨĞƚǇĂŶĚ,ĞĂůƚŚĚŵŝŶŝƐƚƌĂƚŝŽŶ;K^,ͿǁĞďƐŝƚĞŚĂƐĂůƐŽƉƵďůŝƐŚĞĚĂ

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CORECIVIC-MLG000053

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 ϭ͘ ,ĂǀĞǇŽƵƚƌĂǀĞůĞĚŽƵƚƐŝĚĞŽĨƚŚĞhŶŝƚĞĚ^ƚĂƚĞƐĂŶĚƌĞƚƵƌŶĞĚǁŝƚŚŝŶƚŚĞůĂƐƚϭϰĚĂǇƐ͍ Ϯ͘ ,ĂǀĞǇŽƵŚĂĚĐůŽƐĞĐŽŶƚĂĐƚǁͬĂŶǇŽŶĞĚŝĂŐŶŽƐĞĚǁͬƚŚĞKs/ͲϭϵŝůůŶĞƐƐǁŝƚŚŝŶƚŚĞůĂƐƚ
ϭϰĚĂǇƐ͍ ϯ͘ ,ĂǀĞǇŽƵƌĞƚƵƌŶĞĚĨƌŽŵh^DŝůŝƚĂƌǇŽƌEĂƚŝŽŶĂů'ƵĂƌĚĚĞƉůŽǇŵĞŶƚƌĞůĂƚĞĚƚŽƚŚĞ
Ks/ͲϭϵƌĞƐƉŽŶƐĞǁŝƚŚŝŶƚŚĞůĂƐƚϭϰĚĂǇƐ͍ ϰ͘ /ŶƚŚĞůĂƐƚϮϰŚŽƵƌƐŚĂǀĞǇŽƵĞǆƉĞƌŝĞŶĐĞĚĂŶǇŽĨƚŚĞĨŽůůŽǁŝŶŐƐǇŵƉƚŽŵƐ͗
x ^ƵďũĞĐƚŝǀĞ&ĞǀĞƌ;ĨĞůƚĨĞǀĞƌŝƐŚͿ͍ x EĞǁŽĨǁŽƌƐĞŶŝŶŐŽƵŐŚ͍ x ^ŚŽƌƚŶĞƐƐŽĨƌĞĂƚŚ͍ x ŚŝůůƐ͍ x ^ŽƌĞdŚƌŽĂƚ͍ x ŝĂƌƌŚĞĂ͍ ϱ͘ ƌĞǇŽƵĞǆƉĞƌŝĞŶĐŝŶŐĂŶĞůĞǀĂƚĞĚďŽĚǇƚĞŵƉĞƌĂƚƵƌĞŽĨшϭϬϬ͘ϰΣ&͍  /ĨǇŽƵĂŶƐǁĞƌĞĚΗzĞƐΗƚŽƋƵĞƐƚŝŽŶϭ͕Ϯ͕Žƌϯ;ĞǆƉŽƐƵƌĞƌŝƐŬͿ͕ĞŶƚƌǇƚŽƚŚĞĨĂĐŝůŝƚǇŝƐŶŽƚ
ƉĞƌŵŝƚƚĞĚĂƚƚŚŝƐƚŝŵĞ͘WůĞĂƐĞŝŵŵĞĚŝĂƚĞůǇŶŽƚŝĨǇĂƉƉƌŽƉƌŝĂƚĞŵĞĚŝĐĂůĂƵƚŚŽƌŝƚŝĞƐ͘
/ĨǇŽƵŚĂǀĞĂƚĞŵƉĞƌĂƚƵƌĞŽĨшϭϬϬ͘ϰΣ&ŽƌĂŶƐǁĞƌĞĚǇĞƐƚŽĂŶǇƋƵĞƐƚŝŽŶŝŶϰĂďŽǀĞ ;ƐǇŵƉƚŽŵƐͿ͕ĞŶƚƌǇƚŽƚŚĞĨĂĐŝůŝƚǇŝƐŶŽƚƉĞƌŵŝƚƚĞĚ͘WůĞĂƐĞŝŵŵĞĚŝĂƚĞůǇŶŽƚŝĨǇĂƉƉƌŽƉƌŝĂƚĞ ŵĞĚŝĐĂůĂƵƚŚŽƌŝƚŝĞƐ͘  ůůǀŝƐŝƚŽƌƐƚŚĂƚƐĞůĨͲĞǀĂůƵĂƚĞĂŶĚĞŶƚĞƌƚŚĞĨĂĐŝůŝƚǇǁŝůůƐƚŝůůďĞƌĞƋƵŝƌĞĚƚŽǀĞƌďĂůůǇĂŶƐǁĞƌ ƚŚĞĂďŽǀĞƋƵĞƐƚŝŽŶƐĂƐŬĞĚďǇĂŽƌĞŝǀŝĐĞŵƉůŽǇĞĞĂƚƚŚĞĨĂĐŝůŝƚǇĞŶƚƌĂŶĐĞŽƌůŽďďǇĂŶĚ ŚĂǀĞƚŚĞŝƌƚĞŵƉĞƌĂƚƵƌĞĐŚĞĐŬĞĚ͘  dŚĂŶŬǇŽƵĨŽƌǇŽƵƌĂƐƐŝƐƚĂŶĐĞŝŶŬĞĞƉŝŶŐƚŚĞĐŽŵŵƵŶŝƚǇƐĂĨĞ͘
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 Ž ŵ ŵ Ƶ Ŷ ŝ ƚ Ǉ  K s /  Ͳ ϭ ϵ  W Ă Ŷ Ě Ğ ŵ ŝ Đ  W ů Ă Ŷ  Ͳ  ƌĞǀ͘Ϯ;DĂǇϳ͕ϮϬϮϬͿ 

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CORECIVIC-MLG000054

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WWE/yϭďͲs/^/dKZKZKEs/Zh^/^^ϮϬϭϵ;Ks/ͲϭϵͿEKd/&/d/KE ;^WE/^,Ϳ 
ŶƵŶĞƐĨƵĞƌǌŽƉŽƌŵĂǆŝŵŝǌĂƌůĂƐĞŐƵƌŝĚĂĚĚĞŶƵĞƐƚƌŽƐĞŵƉůĞĂĚŽƐ͕ƌĞƐŝĚĞŶƚĞƐǇǀŝƐŝƚĂŶƚĞƐ͕ ǇŵŝŶŝŵŝǌĂƌůĂƉƌŽƉĂŐĂĐŝſŶƉŽƚĞŶĐŝĂůĚĞKs/Ͳϭϵ͕ŽƌĞŝǀŝĐƌĞƋƵŝĞƌĞƋƵĞƚŽĚĂƐůĂƐ ƉĞƌƐŽŶĂƐƋƵĞŝŶŐƌĞƐĞŶĂĞƐƚĂŝŶƐƚĂůĂĐŝſŶƌĞĂůŝĐĞŶůĂƐŝŐƵŝĞŶƚĞĂƵƚŽĞǀĂůƵĂĐŝſŶ͗ 
ϭ͘ ͎,ĂǀŝĂũĂĚŽĨƵĞƌĂĚĞůŽƐƐƚĂĚŽƐhŶŝĚŽƐǇŚĂƌĞŐƌĞƐĂĚŽĞŶůŽƐƷůƚŝŵŽƐϭϰĚşĂƐ͍ Ϯ͘ ͎,ĂƚĞŶŝĚŽĐŽŶƚĂĐƚŽĐĞƌĐĂŶŽĐŽŶĂůŐƵŝĞŶĚŝĂŐŶŽƐƚŝĐĂĚŽĐŽŶůĂĞŶĨĞƌŵĞĚĂĚKs/ͲϭϵĞŶ
ůŽƐƷůƚŝŵŽƐϭϰĚşĂƐ͍ ϯ͘ ͎,ĂƐŝĚŽĚĞƐƉůĞŐĂĚŽ;ũĠƌĐŝƚŽĚĞůŽƐ͘hh͕͘'ƵĂƌĚŝĂEĂĐŝŽŶĂůͿƉĂƌĂĂƚĞŶĚĞƌͬĂǇƵĚĂƌĞŶ
ƌĞƐƉƵĞƐƚĂĚĞůKs/ͲϭϵǇƌĞŐƌĞƐſĚĞůĚĞƐƉůŝĞŐƵĞĞŶůŽƐƷůƚŝŵŽƐϭϰĚşĂƐ͍ ϰ͘ ͎ƐƚĄĞǆƉĞƌŝŵĞŶƚĂŶĚŽĞƐĐĂůŽĨƌşŽƐƉĞƌƐŝƐƚĞŶƚĞƐŽƌĞŐƵůĂƌĞƐ͕ĚŽůŽƌĞƐĐŽƌƉŽƌĂůĞƐŽ
ŵƵƐĐƵůĂƌĞƐ͕ĚŽůŽƌĞƐĚĞĐĂďĞǌĂ͕ǀſŵŝƚŽƐŽĚŝĂƌƌĞĂ͍ ϱ͘ ͎ƐƚĄĞǆƉĞƌŝŵĞŶƚĂŶĚŽƵŶĂƚŽƐƉĞƌƐŝƐƚĞŶƚĞŽƌĞŐƵůĂƌ͍ ϲ͘ ͎ǆƉĞƌŝŵĞŶƚĂĨĂůƚĂĚĞĂůŝĞŶƚŽƉĞƌƐŝƐƚĞŶƚĞŽƌĞŐƵůĂƌŽĚŝĨŝĐƵůƚĂĚƉĂƌĂƌĞƐƉŝƌĂƌ͍ ϳ͘ ͎dŝĞŶĞĚŽůŽƌĚĞŐĂƌŐĂŶƚĂƉĞƌƐŝƐƚĞŶƚĞŽƌĞŐƵůĂƌ͍ ϴ͘ ͎ƐƚĄĞǆƉĞƌŝŵĞŶƚĂŶĚŽƵŶĂƚĞŵƉĞƌĂƚƵƌĂĐŽƌƉŽƌĂůĞůĞǀĂĚĂĚĞшϭϬϬ͘ϰΣ&͍
 ^ŝƌĞƐƉŽŶĚŝſΗ^şΗĂůĂƐƉƌĞŐƵŶƚĂƐϭ͕ϮŽϯ͕ĞŶĞƐƚĞŵŽŵĞŶƚŽŶŽƐĞůĞƉĞƌŵŝƚĞůĂĞŶƚƌĂĚĂĂů ĐĞŶƚƌŽ͘WŽƌĨĂǀŽƌŶŽƚŝĨŝƋƵĞĚĞŝŶŵĞĚŝĂƚŽĂůĂƐĂƵƚŽƌŝĚĂĚĞƐŵĠĚŝĐĂƐĐŽƌƌĞƐƉŽŶĚŝĞŶƚĞƐ͘  ^ŝƚŝĞŶĞƵŶĂƚĞŵƉĞƌĂƚƵƌĂĐŽƌƉŽƌĂůĞůĞǀĂĚĂ;ƉĞƌŽŝŶĨĞƌŝŽƌĂϭϬϬ͘ϰΣ&ͿǇĐƵĂůƋƵŝĞƌŽƚƌŽ ƐşŶƚŽŵĂ͕ĞŶĞƐƚĞŵŽŵĞŶƚŽŶŽƐĞůĞƉĞƌŵŝƚĞůĂĞŶƚƌĂĚĂĂůĐĞŶƚƌŽ͘WŽƌĨĂǀŽƌŶŽƚŝĨŝƋƵĞĚĞ ŝŶŵĞĚŝĂƚŽĂůĂƐĂƵƚŽƌŝĚĂĚĞƐŵĠĚŝĐĂƐĐŽƌƌĞƐƉŽŶĚŝĞŶƚĞƐ͘  'ƌĂĐŝĂƐƉŽƌƐƵĂǇƵĚĂƉĂƌĂŵĂŶƚĞŶĞƌƐĞŐƵƌĂĂůĂĐŽŵƵŶŝĚĂĚ͘
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 Ž ŵ ŵ Ƶ Ŷ ŝ ƚ Ǉ  K s /  Ͳ ϭ ϵ  W Ă Ŷ Ě Ğ ŵ ŝ Đ  W ů Ă Ŷ  Ͳ  ƌĞǀ͘Ϯ;DĂǇϳ͕ϮϬϮϬͿ 

W Ă Ő Ğ ϮϯͮϰϬ

CORECIVIC-MLG000055

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 32 of 89

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EŽƚĞ͗WůĞĂƐĞĂƐŬĂůůƋƵĞƐƚŝŽŶƐǀĞƌďĂůůǇ͘/ĨĂƐƚĂĨĨͬƉĞƌƐŽŶͬǀŝƐŝƚŽƌĂŶƐǁĞƌƐǇĞƐƚŽĂŶǇƋƵĞƐƚŝŽŶ͕ƉůĞĂƐĞ ĐŽŵƉůĞƚĞĂŶĚƌĞƚƵƌŶƚŚĞĨŽƌŵƚŽƚŚĞ,ZĞƉĂƌƚŵĞŶƚ͘^ĞĞĂĚĚŝƚŝŽŶŝŶƐƚƌƵĐƚŝŽŶƐďĞůŽǁ͘
ϭ͘ ƐƐĞƐƐƚŚĞZŝƐŬKĨǆƉŽƐƵƌĞʹƐŬƚŚĞĨŽůůŽǁŝŶŐƋƵĞƐƚŝŽŶƐ͗
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͘ /ĨĂƚĞŵƉĞƌĂƚƵƌĞŽĨхϭϬϬ͘ϰŝƐƌĞŐŝƐƚĞƌĞĚ͕ĂƐŬƚŚĞƐƚĂĨĨͬƉĞƌƐŽŶͬǀŝƐŝƚŽƌƚŽƐŝƚĚŽǁŶĨŽƌϭϬŵŝŶƵƚĞƐĂŶĚ ƌĞƚĂŬĞƚŚĞŝƌƚĞŵƉĞƌĂƚƵƌĞĂƐĞĐŽŶĚƚŝŵĞƚŽĐŽŶĨŝƌŵƚŚĂƚƚŚĞŝƌƚĞŵƉĞƌĂƚƵƌĞŝƐĞůĞǀĂƚĞĚ͘
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CORECIVIC-MLG000056

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ƚŚĞƌĞƐŝĚĞŶƚƚŚĞĨŽůůŽǁŝŶŐƋƵĞƐƚŝŽŶƐ͗ Ă͘ ,ĂǀĞǇŽƵďĞĞŶŝŶĐůŽƐĞĐŽŶƚĂĐƚǁͬĂŶǇŽŶĞĚŝĂŐŶŽƐĞĚǁͬƚŚĞKs/ͲϭϵŝůůŶĞƐƐǁŝƚŚŝŶƚŚĞůĂƐƚ
ϭϰĚĂǇƐ͍ ŝ͘ ,ĂǀĞǇŽƵďĞĞŶŶŽƚŝĨŝĞĚŽĨĂƉŽƐŝƚŝǀĞKs/ͲϭϵĐĂƐĞĂƚǇŽƵƌƉůĂĐĞŽĨĞŵƉůŽǇŵĞŶƚ͕
ƐĐŚŽŽů͕ŽĨĨƐŝƚĞƚƌĞĂƚŵĞŶƚĨĂĐŝůŝƚǇ͕ŚŽŵĞ͕ŽƌĂŶǇŽƚŚĞƌůŽĐĂƚŝŽŶǇŽƵĨƌĞƋƵĞŶƚ͍,ĂǀĞ ǇŽƵďĞĞŶŝŶĐůŽƐĞĐŽŶƚĂĐƚǁŝƚŚƚŚĞƉŽƐŝƚŝǀĞKs/ͲϭϵĐĂƐĞ͍ ŝŝ͘ /ŶƚŚĞůĂƐƚϮϰŚŽƵƌƐŚĂƐƚŚĞƌĞƐŝĚĞŶƚĞǆƉĞƌŝĞŶĐĞĚĂŶǇŽĨƚŚĞĨŽůůŽǁŝŶŐƐǇŵƉƚŽŵƐ͗
x ^ƵďũĞĐƚŝǀĞ&ĞǀĞƌ;ĨĞůƚĨĞǀĞƌŝƐŚͿ͍ x EĞǁŽƌǁŽƌƐĞŶŝŶŐŽƵŐŚ͍ x ^ŚŽƌƚŶĞƐƐŽĨƌĞĂƚŚ͍ x ŚŝůůƐ͍ x ^ŽƌĞdŚƌŽĂƚ͍ x ŝĂƌƌŚĞĂ͍ ϱ͘ WůĂĐĞĂŶyŝŶƚŚĞΗdĞŵƉĞƌĂƚƵƌĞŚĞĐŬΗĐŽůƵŵŶ;ƌĞŐĂƌĚůĞƐƐŽĨŽƵƚĐŽŵĞͿĂĨƚĞƌŵĞĂƐƵƌŝŶŐƚŚĞ ƌĞƐŝĚĞŶƚΖƐďŽĚǇƚĞŵƉĞƌĂƚƵƌĞ͘ ϲ͘ ^ŝŐŶŝŶƚŚĞΗ^ƚĂĨĨ^ŝŐŶĂƚƵƌĞΗĐŽůƵŵŶ  ZĞĨĞƌƚŽƉĂŐĞϱŽĨƚŚŝƐĚŽĐƵŵĞŶƚŝĨĂƌĞƐŝĚĞŶƚŚĂƐĂŶĞůĞǀĂƚĞĚĨĞǀĞƌĂŶĚŽƚŚĞƌƐǇŵƉƚŽŵƐƚŽ ĚĞƚĞƌŵŝŶĞĐŽƵƌƐĞŽĨĂĐƚŝŽŶ͘ 
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CORECIVIC-MLG000057

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CORECIVIC-MLG000058

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 x WĞƌĨŽƌŵZŽƵƚŝŶĞŶǀŝƌŽŶŵĞŶƚĂůůĞĂŶŝŶŐ͗

 o ŽŶĚƵĐƚĨƌĞƋƵĞŶƚĞŶǀŝƌŽŶŵĞŶƚĂůĐůĞĂŶŝŶŐƐŽĨΗŚŝŐŚƚŽƵĐŚΗĂƌĞĂƐ͘ZŽƵƚŝŶĞůǇĐůĞĂŶ

ƐƵƌĨĂĐĞƐƚŚĂƚĂƌĞĨƌĞƋƵĞŶƚůǇƚŽƵĐŚĞĚĂŶĚƚŚĞƌĞĨŽƌĞŵĂǇďĞĐŽŵĞĐŽŶƚĂŵŝŶĂƚĞĚǁŝƚŚ ŐĞƌŵƐ͘dŚĞƐĞĐĂŶŝŶĐůƵĚĞĚŽŽƌŬŶŽďƐ͕ŚĂŶĚƌĂŝůƐ͕ŬĞǇƐ͕ƚĞůĞƉŚŽŶĞƐ͕ĐŽŵƉƵƚĞƌŬĞǇďŽĂƌĚƐ͕ ŚĂƌĚͲďĂĐŬĞĚĐŚĂŝƌƐ͕ƌĞŵŽƚĞƐ͕ůŝŐŚƚƐǁŝƚĐŚĞƐ͕ĞƚĐ͘/ŶĐƌĞĂƐŝŶŐƚŚĞĨƌĞƋƵĞŶĐǇŽĨ

ĞŶǀŝƌŽŶŵĞŶƚĂůĐůĞĂŶŝŶŐŽĨƚŚĞƐĞƐƵƌĨĂĐĞƐŝƐĂŵĞĂƐƵƌĞƚŚĂƚĐĂŶďĞŝŶŝƚŝĂƚĞĚŝŵŵĞĚŝĂƚĞůǇ͕

ƚŚĞƌĞďǇůŝŵŝƚŝŶŐƚƌĂŶƐŵŝƐƐŝŽŶŽĨŽƚŚĞƌŝŶĨĞĐƚŝŽŶƐƐƵĐŚĂƐƚŚĞĐŽŵŵŽŶĐŽůĚ͕ƐĞĂƐŽŶĂůĨůƵ͕
ĂŶĚDZ^͘hƐĞƚŚĞĐůĞĂŶŝŶŐĂŐĞŶƚƐƚŚĂƚĂƌĞƵƐƵĂůůǇƵƐĞĚŝŶƚŚĞƐĞĂƌĞĂƐĂŶĚĨŽůůŽǁƚŚĞ
ĚŝƌĞĐƚŝŽŶƐŽŶƚŚĞůĂďĞů͘ o EŽĂĚĚŝƚŝŽŶĂůĚŝƐŝŶĨĞĐƚŝŽŶďĞǇŽŶĚƌŽƵƚŝŶĞĐůĞĂŶŝŶŐŝƐƌĞĐŽŵŵĞŶĚĞĚĂƚƚŚŝƐƚŝŵĞ͘

 x ŝƐŝŶĨĞĐƚŝŶŐWƌŽĐĞĚƵƌĞƐ

 o dŚĞůŝƐƚďĞůŽǁŝŶĐůƵĚĞƐĐŚĞŵŝĐĂůƐƚŚĂƚŚĂǀĞďĞĞŶĂƉƉƌŽǀĞĚĂƚŽƌĞŝǀŝĐĨƌŽŵ^ƉĂƌƚĂŶ

ĂŶĚŚĂǀĞďĞĞŶůŝƐƚĞĚĂƐĞĨĨĞĐƚŝǀĞƚƌĞĂƚŵĞŶƚĂŐĂŝŶƐƚĐŽƌŽŶĂǀŝƌƵƐĞƐǁŚĞŶƵƐĞĚĂƐ
ĚŝƌĞĐƚĞĚ͗ ϭ͘ ,YϮ Ϯ͘ ,YEĞƵƚƌĂů ϯ͘ ,Ăůƚ ϰ͘ W^Y// ϱ͘ ŝĨĨĞŶƐĞ ϲ͘ ,ĂƌĚ^ƵƌĨĂĐĞŝƐŝŶĨĞĐƚŝŶŐtŝƉĞƐ o ůůŽĨƚŚĞƐĞĐŚĞŵŝĐĂůƐŵƵƐƚƌĞŵĂŝŶǁĞƚŽŶƚŚĞƐƵƌĨĂĐĞĨŽƌϭϬŵŝŶƵƚĞƐƚŽĚŝƐŝŶĨĞĐƚ͘ o KƚŚĞƌĐŚĞŵŝĐĂůƐŵĂǇďĞƐƵďƐƚŝƚƵƚĞĚĨŽƌƚŚĞĂďŽǀĞŝƚĞŵƐŝĨŶĞĞĚĞĚǁŝƚŚ^ĂĨĞƚǇĂƉƉƌŽǀĂů͘ o tŝƉŝŶŐƚŚĞƐƵƌĨĂĐĞƐŝƐƚŚĞƌĞĐŽŵŵĞŶĚĞĚŵĞƚŚŽĚĂŶĚŝƐŵŽƌĞĞĨĨĞĐƚŝǀĞĂŶĚƐĂĨĞƌƚŚĂŶ

ƐƉƌĂǇŝŶŐ͘ o WƌŽƉĞƌŝƐŝŶĨĞĐƚŝŶŐWƌŽĐĞĚƵƌĞ͗
ϭ͘ ƉƉůǇĚŝƐƉŽƐĂďůĞŐůŽǀĞƐ Ϯ͘ ,ĞĂǀŝůǇĂƉƉůǇĚŝƐŝŶĨĞĐƚĂŶƚƚŽĂĐůŽƚŚĂŶĚǁŝƉĞĚŽǁŶĂůůŵĂũŽƌƚŽƵĐŚƉŽŝŶƚĂƌĞĂƐŽƌ

ŚĂƌĚƐƵƌĨĂĐĞǇŽƵǁŝƐŚƚŽĚŝƐŝŶĨĞĐƚ͘ ϯ͘ KŶĐĞĐůĞĂŶŝŶŐŝƐĐŽŵƉůĞƚĞ͕ĐĂƌĞĨƵůůǇƌĞŵŽǀĞŐůŽǀĞƐ͘ ϰ͘ /ŵŵĞĚŝĂƚĞůǇǁĂƐŚŚĂŶĚƐǁŝƚŚƐŽĂƉĂŶĚǁĂƚĞƌĨŽƌĂŵŝŶŝŵƵŵŽĨϮϬƐĞĐŽŶĚƐ͘ 

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 Ž ŵ ŵ Ƶ Ŷ ŝ ƚ Ǉ  K s /  Ͳ ϭ ϵ  W Ă Ŷ Ě Ğ ŵ ŝ Đ  W ů Ă Ŷ  Ͳ  ƌĞǀ͘Ϯ;DĂǇϳ͕ϮϬϮϬͿ

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CORECIVIC-MLG000059

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 36 of 89
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x ^ƚĂŶĚĂƌĚZĞĨĞƌĞŶĐĞƐ x ĂĐŬŐƌŽƵŶĚ x WƵƌƉŽƐĞ x ĞĨŝŶŝƚŝŽŶƐ x ůĞĂŶŝŶŐĂŶĚŝƐŝŶĨĞĐƚŝŽŶĨƚĞƌWĞƌƐŽŶƐ^ƵƐƉĞĐƚĞĚͬŽŶĨŝƌŵĞĚƚŽ,ĂǀĞKs/Ͳϭϵ,ĂǀĞ
ĞĞŶŝŶƚŚĞ&ĂĐŝůŝƚǇ x ,ŽǁƚŽůĞĂŶĂŶĚŝƐŝŶĨĞĐƚ x WĞƌƐŽŶĂůWƌŽƚĞĐƚŝǀĞƋƵŝƉŵĞŶƚ;WWͿĂŶĚ,ĂŶĚ,ǇŐŝĞŶĞ  ^ƚĂŶĚĂƌĚZĞĨĞƌĞŶĐĞƐ͗ Ϯϵ&ZϭϵϭϬ͘ϭϮϬϬʹK^,,ĂǌĂƌĚŽŵŵƵŶŝĐĂƚŝŽŶ^ƚĂŶĚĂƌĚ Ϯϵ&ZϭϵϭϬ͘ϭϮϬʹK^,,ĂǌĂƌĚŽƵƐtĂƐƚĞKƉĞƌĂƚŝŽŶƐĂŶĚŵĞƌŐĞŶĐǇZĞƐƉŽŶƐĞ Ϯϵ&ZϭϵϭϬ͘ϭϬϯϬʹK^,ůŽŽĚďŽƌŶĞWĂƚŚŽŐĞŶ^ƚĂŶĚĂƌĚ Ϯϵ&ZϭϵϭϬ͘ϭϯϰʹK^,ZĞƐƉŝƌĂƚŽƌǇWƌŽƚĞĐƚŝŽŶ^ƚĂŶĚĂƌĚ Ϯϵ&ZϭϵϭϬ͘ϭϯϮʹK^,WW^ƚĂŶĚĂƌĚ  ĂĐŬŐƌŽƵŶĚ͗ ĂƐĞĚŽŶǁŚĂƚŝƐĐƵƌƌĞŶƚůǇŬŶŽǁŶĂďŽƵƚƚŚĞǀŝƌƵƐ͕ŝƚŝƐŵŽƐƚůǇƐƉƌĞĂĚĨƌŽŵƉĞƌƐŽŶͲƚŽͲƉĞƌƐŽŶ ĂŶĚŚĂƉƉĞŶƐŵŽƐƚĨƌĞƋƵĞŶƚůǇĂŵŽŶŐĐůŽƐĞĐŽŶƚĂĐƚƐ;ǁŝƚŚŝŶĂďŽƵƚϲĨĞĞƚͿ͘  dŚŝƐƚǇƉĞŽĨƚƌĂŶƐŵŝƐƐŝŽŶŽĐĐƵƌƐǀŝĂƌĞƐƉŝƌĂƚŽƌǇĚƌŽƉůĞƚƐ͘ƵƌƌĞŶƚĞǀŝĚĞŶĐĞƐƵŐŐĞƐƚƐƚŚĂƚŶŽǀĞů ĐŽƌŽŶĂǀŝƌƵƐŵĂǇƌĞŵĂŝŶǀŝĂďůĞĨŽƌŚŽƵƌƐƚŽĚĂǇƐŽŶƐƵƌĨĂĐĞƐŵĂĚĞĨƌŽŵĂǀĂƌŝĞƚǇŽĨŵĂƚĞƌŝĂůƐ͘ ůĞĂŶŝŶŐŽĨǀŝƐŝďůǇĚŝƌƚǇƐƵƌĨĂĐĞƐĨŽůůŽǁĞĚďǇĚŝƐŝŶĨĞĐƚŝŽŶŝƐĂďĞƐƚƉƌĂĐƚŝĐĞŵĞĂƐƵƌĞĨŽƌ ƉƌĞǀĞŶƚŝŽŶŽĨKs/ͲϭϵĂŶĚŽƚŚĞƌǀŝƌĂůƌĞƐƉŝƌĂƚŽƌǇŝůůŶĞƐƐĞƐŝŶĐŽŵŵƵŶŝƚǇƐĞƚƚŝŶŐƐ͘  WƵƌƉŽƐĞ͗ dŚŝƐŐƵŝĚĂŶĐĞƉƌŽǀŝĚĞƐƌĞĐŽŵŵĞŶĚĂƚŝŽŶƐŽŶƚŚĞĐůĞĂŶŝŶŐĂŶĚĚŝƐŝŶĨĞĐƚŝŽŶŽĨƌŽŽŵƐŽƌĂƌĞĂƐŽĨ ƚŚŽƐĞǁŝƚŚƐƵƐƉĞĐƚĞĚŽƌǁŝƚŚĐŽŶĨŝƌŵĞĚKs/ͲϭϵŚĂǀĞǀŝƐŝƚĞĚ͘/ƚŝƐĂŝŵĞĚĂƚůŝŵŝƚŝŶŐƚŚĞ ƐƵƌǀŝǀĂůŽĨŶŽǀĞůĐŽƌŽŶĂǀŝƌƵƐŝŶŬĞǇĞŶǀŝƌŽŶŵĞŶƚƐ͘dŚĞƐĞƌĞĐŽŵŵĞŶĚĂƚŝŽŶƐǁŝůůďĞƵƉĚĂƚĞĚŝĨ ĂĚĚŝƚŝŽŶĂůŝŶĨŽƌŵĂƚŝŽŶďĞĐŽŵĞƐĂǀĂŝůĂďůĞ͘  ĞĨŝŶŝƚŝŽŶƐ͗ x ůĞĂŶŝŶŐƌĞĨĞƌƐƚŽƚŚĞƌĞŵŽǀĂůŽĨĚŝƌƚĂŶĚŝŵƉƵƌŝƚŝĞƐ͕ŝŶĐůƵĚŝŶŐŐĞƌŵƐ͕ĨƌŽŵƐƵƌĨĂĐĞƐ͘ ůĞĂŶŝŶŐĂůŽŶĞĚŽĞƐŶŽƚŬŝůůŐĞƌŵƐ͕ďƵƚďǇƌĞŵŽǀŝŶŐƚŚĞŐĞƌŵƐ͕ŝƚĚĞĐƌĞĂƐĞƐƚŚĞŝƌŶƵŵďĞƌ ĂŶĚƚŚĞƌĞĨŽƌĞĂŶǇƌŝƐŬŽĨƐƉƌĞĂĚŝŶŐŝŶĨĞĐƚŝŽŶ͘ x ŝƐŝŶĨĞĐƚŝŶŐǁŽƌŬƐďǇƵƐŝŶŐĐŚĞŵŝĐĂůƐƚŽŬŝůůŐĞƌŵƐŽŶƐƵƌĨĂĐĞƐ͘dŚŝƐƉƌŽĐĞƐƐĚŽĞƐŶŽƚ ŶĞĐĞƐƐĂƌŝůǇĐůĞĂŶĚŝƌƚǇƐƵƌĨĂĐĞƐŽƌƌĞŵŽǀĞŐĞƌŵƐ͕ďƵƚŬŝůůŝŶŐŐĞƌŵƐƌĞŵĂŝŶŝŶŐŽŶĂƐƵƌĨĂĐĞ ĂĨƚĞƌĐůĞĂŶŝŶŐĨƵƌƚŚĞƌƌĞĚƵĐĞƐĂŶǇƌŝƐŬŽĨƐƉƌĞĂĚŝŶŐŝŶĨĞĐƚŝŽŶ͘
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CORECIVIC-MLG000060

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 37 of 89

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x ŽŶƚĂŵŝŶĂƚŝŽŶŝƐƚŚĞƉƌĞƐĞŶĐĞŽĨŐĞƌŵƐŽŶďŽĚǇƉĂƌƚƐ͕ƐƵƌĨĂĐĞƐʹƐƵĐŚĂƐĐůŽƚŚĞƐ͕ŐŽǁŶƐ͕ ŐůŽǀĞƐ͕ďĞĚĚŝŶŐ͕ĂŶĚŽƚŚĞƌŝŶĂŶŝŵĂƚĞŽďũĞĐƚƐ͘
x ƌŽƐƐͲĐŽŶƚĂŵŝŶĂƚŝŽŶŝƐƚŚĞƚƌĂŶƐĨĞƌŽĨŚĂƌŵĨƵůŐĞƌŵƐĨƌŽŵŽŶĞƉĞƌƐŽŶ͕ŽďũĞĐƚŽƌƉůĂĐĞƚŽ ĂŶŽƚŚĞƌ
x ŝƐŝŶĨĞĐƚĂŶƚŝƐĂƉƌŽĚƵĐƚƵƐĞĚŽŶƐƵƌĨĂĐĞƐŽƌŵĞĚŝĐĂůĞƋƵŝƉŵĞŶƚͬĚĞǀŝĐĞƐǁŚŝĐŚƌĞƐƵůƚƐŝŶ ĚŝƐŝŶĨĞĐƚŝŽŶŽĨƚŚĞĞƋƵŝƉŵĞŶƚͬĚĞǀŝĐĞ͘
x ƌǇŵŽƉƉŝŶŐŝƐƚŚĞƉƌŽĐĞƐƐŽĨƌĞŵŽǀŝŶŐĚŝƌƚĂŶĚĚĞďƌŝƐĨƌŽŵĨůŽŽƌƐƵƐŝŶŐŽŶůǇŵŽƉŚĞĂĚ ǁŝƚŚŽƵƚǁĂƚĞƌŽƌĚĞƚĞƌŐĞŶƚ͘
x ,ŝŐŚĚƵƐƚŝŶŐŝŶĐůƵĚĞƐĂůůŚŽƌŝǌŽŶƚĂůƐƵƌĨĂĐĞƐĂŶĚĨŝǆƚƵƌĞƐĂďŽǀĞƐŚŽƵůĚĞƌŚĞŝŐŚƚ͕ŝŶĐůƵĚŝŶŐ ǀĞŶƚƐ͘
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ŚŽƵƐŝŶŐŝĨŶĞĞĚĞĚ͘ x /ƚŝƐƌĞĐŽŵŵĞŶĚĞĚƚŽĐůŽƐĞŽĨĨĂƌĞĂƐƵƐĞĚďǇƚŚĞŝůůƉĞƌƐŽŶƐĂŶĚǁĂŝƚĂƐůŽŶŐĂƐƉƌĂĐƚŝĐĂů
ďĞĨŽƌĞďĞŐŝŶŶŝŶŐĐůĞĂŶŝŶŐĂŶĚĚŝƐŝŶĨĞĐƚŝŽŶƚŽŵŝŶŝŵŝǌĞƉŽƚĞŶƚŝĂůĨŽƌĞǆƉŽƐƵƌĞƚŽƌĞƐƉŝƌĂƚŽƌǇ ĚƌŽƉůĞƚƐ͘KƉĞŶŽƵƚƐŝĚĞĚŽŽƌƐĂŶĚǁŝŶĚŽǁƐƚŽŝŶĐƌĞĂƐĞĂŝƌĐŝƌĐƵůĂƚŝŽŶŝŶƚŚĞĂƌĞĂ͘/ĨƉŽƐƐŝďůĞ͕
ǁĂŝƚƵƉƚŽϮϰŚŽƵƌƐďĞĨŽƌĞďĞŐŝŶŶŝŶŐĐůĞĂŶŝŶŐĂŶĚĚŝƐŝŶĨĞĐƚŝŽŶ͘ x /ŶĂƌĞĂƐǁŚĞƌĞŝůůƉĞƌƐŽŶƐŚĂǀĞǀŝƐŝƚĞĚŽƌƵƐĞĚ͕ĐŽŶƚŝŶƵĞƌŽƵƚŝŶĞĐůĞĂŶŝŶŐĂŶĚĚŝƐŝŶĨĞĐƚŝŽŶĂƐ
ŝŶƚŚŝƐŐƵŝĚĂŶĐĞ͘
 WĞƌƐŽŶĂůWƌŽƚĞĐƚŝǀĞƋƵŝƉŵĞŶƚ;WWͿĂŶĚ,ĂŶĚ,ǇŐŝĞŶĞ͗ x ůĞĂŶŝŶŐƐƚĂĨĨƐŚŽƵůĚǁĞĂƌĚŝƐƉŽƐĂďůĞŐůŽǀĞƐ͕ŐŽŐŐůĞƐ͕ƌĞƐƉŝƌĂƚŽƌƐĂŶĚŐŽǁŶƐĨŽƌĂůůƚĂƐŬƐŝŶ
ƚŚĞĐůĞĂŶŝŶŐƉƌŽĐĞƐƐ͘ZĞĨĞƌƚŽƚƚĂĐŚŵĞŶƚĨŽƌƉƌŽƉĞƌĚŽŶŶŝŶŐŽĨWW͘ o WĞƌĨŽƌŵĐůĞĂŶŝŶŐǁŝƚŚƚŚĞĨĞǁĞƐƚƉĞƌƐŽŶƐƉŽƐƐŝďůĞƚŽĐŽŶƚƌŽůŽĐĐƵƉĂƚŝŽŶĂůĞǆƉŽƐƵƌĞ͘ o 'ůŽǀĞƐĂŶĚŐŽǁŶƐƐŚŽƵůĚďĞĐŽŵƉĂƚŝďůĞǁŝƚŚƚŚĞĚŝƐŝŶĨĞĐƚĂŶƚƉƌŽĚƵĐƚƐďĞŝŶŐƵƐĞĚ͘ o ĚĚŝƚŝŽŶĂůWWŵŝŐŚƚďĞƌĞƋƵŝƌĞĚďĂƐĞĚŽŶƚŚĞĐůĞĂŶŝŶŐͬĚŝƐŝŶĨĞĐƚĂŶƚƉƌŽĚƵĐƚƐďĞŝŶŐ ƵƐĞĚĂŶĚǁŚĞƚŚĞƌƚŚĞƌĞŝƐĂƌŝƐŬŽĨƐƉůĂƐŚ͘ o ZĞŵŽǀĞWWĐĂƌĞĨƵůůǇƚŽĂǀŽŝĚĐŽŶƚĂŵŝŶĂƚŝŽŶŽĨƚŚĞǁĞĂƌĞƌĂŶĚƚŚĞƐƵƌƌŽƵŶĚŝŶŐ
ĂƌĞĂ͘WůĞĂƐĞƌĞĨĞƌƚŽƚŚĞƚƚĂĐŚŵĞŶƚŽŶŚŽǁƚŽƉƌŽƉĞƌůǇƌĞŵŽǀĞWW͘ x 'ůŽǀĞƐƐŚŽƵůĚďĞƌĞŵŽǀĞĚĂĨƚĞƌĐůĞĂŶŝŶŐĂƌŽŽŵͬĂƌĞĂͬǌŽŶĞŽĐĐƵƉŝĞĚďǇŝůůƉĞƌƐŽŶƐ͘ůĞĂŶ
ŚĂŶĚƐŝŵŵĞĚŝĂƚĞůǇĂĨƚĞƌŐůŽǀĞƐĂƌĞƌĞŵŽǀĞĚ͘ x ůĞĂŶŝŶŐƐƚĂĨĨƐŚŽƵůĚŝŵŵĞĚŝĂƚĞůǇƌĞƉŽƌƚďƌĞĂĐŚĞƐŝŶWW;Ğ͘Ő͕͘ƚĞĂƌŝŶŐůŽǀĞƐͿŽƌĂŶǇ
ƉŽƚĞŶƚŝĂůĞǆƉŽƐƵƌĞƐƚŽƚŚĞŝƌƐƵƉĞƌǀŝƐŽƌ͘
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 Ž ŵ ŵ Ƶ Ŷ ŝ ƚ Ǉ  K s /  Ͳ ϭ ϵ  W Ă Ŷ Ě Ğ ŵ ŝ Đ  W ů Ă Ŷ  Ͳ  ƌĞǀ͘Ϯ;DĂǇϳ͕ϮϬϮϬͿ 

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CORECIVIC-MLG000061

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ĨƵƌŶŝƚƵƌĞĂŶĚƐƵƌĨĂĐĞƐ͘ x ĨƚĞƌĞǀĞƌǇƚŚŝŶŐŚĂƐďĞĞŶĐůĞĂŶĞĚŝŶƚŚĞƌŽŽŵ͕ĚŝƐŝŶĨĞĐƚĂůůƐƵƌĨĂĐĞƐƐƚĂƌƚŝŶŐĨƌŽŵƚŚĞĚŽŽƌ
ĂŶĚĨŽůůŽǁĂƉĂƚŚĂƌŽƵŶĚƚŚĞďĞĚǁŽƌŬŝŶŐǇŽƵƌǁĂǇďĂĐŬƚŽƚŚĞĚŽŽƌǁŚĞƌĞǇŽƵƐƚĂƌƚĞĚ͘ dŚŝƐƐŚŽƵůĚŝŶĐůƵĚĞďƵƚŝƐŶŽƚůŝŵŝƚĞĚƚŽĂůůůĞĚŐĞƐďĞůŽǁƐŚŽƵůĚĞƌŚĞŝŐŚƚ͕ĚŽŽƌƐ͕ĚŽŽƌ ŚĂŶĚůĞƐ͕ŬŶŽďƐ͕ůŝŐŚƚƐǁŝƚĐŚĞƐ͕ƐƚŽƌĂŐĞďŽǆĞƐ͕ĐĂďŝŶĞƚƐ͕ĚƌĂǁĞƌƐ͕ĂŶĚǁŝŶĚŽǁƐŝůůƐ͘ x WůĂĐĞǁĞƚĨůŽŽƌƐŝŐŶ;ƐͿǁŚĞƌĞǀŝƐŝďůĞ x DŽƉĨůŽŽƌǁŽƌŬŝŶŐĨƌŽŵĂƌĞĂĨƵƌƚŚĞƐƚĨƌŽŵƚŚĞĚŽŽƌĂŶĚǁŽƌŬďĂĐŬǁĂƌĚƐ͘ x EĞǀĞƌƐŚĂŬĞƚŚĞŵŽƉ͘ x ŝƐƉŽƐĞŽĨŵŽƉŚĞĂĚŝŶƚƌĂƐŚ͘ x ZĞŵŽǀĞĂůůWWĂŶĚƉůĂĐĞŝŶƚƌĂƐŚĐĂŶ͘ZĞĨĞƌƚŽƚƚĂĐŚŵĞŶƚĨŽƌƉƌŽƉĞƌĚŽĨĨŝŶŐŵĞƚŚŽĚ͘ x tĂƐŚŚĂŶĚƐƚŚŽƌŽƵŐŚůǇďƵƚĨŽƌĂŵŝŶŝŵƵŵŽĨϮϬƐĞĐŽŶĚƐďĞŝŶŐƐƵƌĞƚŽŐĞƚŶĂŝůƐ͕ŝŶ ďĞƚǁĞĞŶĨŝŶŐĞƌƐ͕ĂŶĚŽƵƚĞƌĞĚŐĞƐŽĨŚĂŶĚƐ͘ x KŶĐĞĨůŽŽƌŝƐĚƌǇ͕ƌĞŵŽǀĞǁĞƚĨůŽŽƌƐŝŐŶ;ƐͿ͘
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Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 49 of 89
ATTACHMENT 4 Declaration of K. Kline

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Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 53 of 89

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Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 54 of 89
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CORECIVIC-MLG000077

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 55 of 89
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CORECIVIC-MLG000078

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ATTACHMENT 5
Declaration of K. Kline

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 57 of 89 CORECIVIC-MLG000079

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ATTACHMENT 6
Declaration of K. Kline

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 64 of 89
COVID-19 PROTOCOLS
FOR R&D, TRANSPORTATION AND CELLBLOCK AREAS
Objective: Screening for Corona Virus prior to transportation. To identify potential Corona Virus suspects in order to isolate, contain, test, treat, and protect uninfected individuals.
West R&D: Prior to any transfer via bus, airlift, or facility vehicle to include court, every detainee will be screened for a temperature by designated security staff in R&D. Any temperature that reads 100 degree F or above will be given a simple mask and escorted to medical immediately. They will not be able to transfer or attend court. A USMS notification will be made upon notice by security staff. A thermometer and 25 simple mask has been placed in a red plastic case in the Transportation Sc/o, Office. Temperature assessment of all detainees will be noted on the transfer of custody receipt or transport orders by security staff and filed for record.
Cellblocks: All new arrivals will be screened prior to being transported to the facility. Once you take the detainees temperature you will note the level of their temperature on their USMS-129 or equivalent paperwork that is returned to the facility. If the detainee has a temperature of 100 degrees or higher a simple mask will be placed on him/her immediately and transferred to the facility with medical being immediately notified upon their arrival. Attempts will be made to keep separate from other inmates on the transport. Thermometer's and 25 simple mask each have been made available and stored in a Red plastic case for both the Tucson and Phoenix Cellblocks. Tucson's case will be stored in box #41 in the bus bay. Phoenix will be stored in the processing office of cellblock.
East R&D: Prior to any transfer via bus, airlift, or facility vehicle to include court, every detainee will be screened for a temperature by designated security staff in R&D. Any temperature that reads 100 degree F or above will be given a simple mask and escorted to medical immediately. They will not be able to transfer or attend court. A USMS/Mesa notification will be made upon notice by security staff. A thermometer and 25 simple mask has been placed in a red plastic case in the Transportation Sc/o, Office. Temperature assessment of all detainees will be noted on the transfer of custody receipt or transport orders by security staff and filed for record.
Mesa Transports: A second transport case with a thermometer and 25 simple mask has also been placed in the Sc/o, Office (East side) for Mesa transport pick-ups . When you arrive at the Mesa Jail, you will scan the new detainee's temperature and log it on their booking packet. If they have a temperature of 100 degrees or higher they will be mask an attempted to keep separate from other inmates being transported. Do not forget your transport case for your Mesa pick-ups
*Thermometers need to be wiped clean with sanitizer by staff once completed with all scans.
*Simple mask are for inmates only as a barrier to not potentially infect others. Recommend staff use N95 mask.
Sanitation Regiment
R&D East and West, will conduct cleaning of all surface areas, inmate holding enclosures and restrooms utilizing HDQC2, allowing the product to set for a minimum of 10 minutes before wiping down. The sanitation schedule is as follows, 0700, 1500 and 0300 hours.
Transportation will incorporate sanitation as part of their pre-trip and post-trip of all transport vehicles utilizing HDQC2. Once the vehicles are pulled into the back of R&D a bottle of HDQC2 will be utilized to spray seating and all surface areas. This does not need to be saturate, but coated. Allow to dry no need to wipe down and board inmates. HDQC2 will be utilized again on the post-trip after offloading all inmates.
Restraints will be sprayed with HDQC2 after each use. Once sprayed allow ten minutes to take affect and wipe down immediately to prevent rust. Additionally the BOSS Chair will need to be wiped after each inmate scan. Thank you all for your support during this time. As always remember your Personal Protective Equipment.
CORECIVIC-MLG000085

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ATTACHMENT 7
Declaration of K. Kline

Case 2:20-cv-00901-DJH--DMF Document 16-4 Filed 05/14/20 Page 66 of 89 CORECIVIC-MLG000086

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ATTACHMENT 8
Declaration of K. Kline

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ATTACHMENT 9
Declaration of K. Kline

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ATTACHMENT 10
Declaration of K. Kline

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ATTACHMENT 11
Declaration of K. Kline

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ATTACHMENT 12
Declaration of K. Kline

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ATTACHMENT 13
Declaration of K. Kline

Case 2:20-cv-00901-DJH--DMF Document 16-5 Filed 05/14/20 Page 9 of 33 Employee ID No. _____________________ Date: ______________________________
COVID-19 ENTRY SCREENING TOOL

Note: Please ask all questions verbally. If a staff/person/visitor answers yes to any question, please complete and return the form to the HR Department. See addition instructions below.
1. Assess the Risk Of Exposure – Ask the following questions:
Yes No Have you traveled outside the United States and returned within the last 14 days? Date of Return: ____________
Yes No Have you had close contact with anyone diagnosed with the COVID-19 illness within the last 14 days? If YES, Dates of Exposure:__________________________
Yes No Have you returned from US Military or National Guard deployment related to the COVID19 response within the last 14 days? Date of Return: _____________

2. Assess Symptoms: Ask the following question:

In last 24 hours have you experienced any of the following symptoms:

Yes No

Subjective Fever (felt feverish)

Yes No

New or worsening Cough

Yes No

Shortness of Breath

Yes No

Chills

Yes No

Sore Throat

Yes No

Diarrhea

3. Perform a temperature check ______මF

4. Instructions
A. If the staff/person/visitor answers Yes to any question in section 1 (exposure risk), with or without symptoms, the staff/person/visitor will be assessed for return home.
B. If the staff/person’s/visitor's temperature is ш 100.4ӑF or answers Yes to any question in section 2 (symptoms), the staff/person/visitor will be assessed for return home.
C. If a temperature of > 100.4 is registered, ask the staff/person/visitor to sit down for 10 minutes and retake their temperature a second time to confirm that their temperature is elevated.

Note: If staff member answers yes to any question, complete the form and contact the most senior HR Professional at the facility or designee to designate necessary leave of absence status. Completed forms must be kept in separate file.
(revised 4/30/2020)

CORECIVIC-MLG000112

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ATTACHMENT 14
Declaration of K. Kline

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ATTACHMENT 15
Declaration of K. Kline

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ATTACHMENT 16
Declaration of K. Kline

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ATTACHMENT 17
Declaration of K. Kline

Case 2:20-cv-00901-DJH--DMF Document 16-5 Filed 05/14/20 Page 25 of 33

Inmate/Resident Use of Cloth or Surgical Paper Masks
You will soon be provided with a cloth or surgical paper face mask you may voluntarily wear inside the facility. Here are a few answers to common questions regarding the use of these masks.
WHAT MASK CAN I WEAR? You have the option to immediately begin wearing a cloth or paper mask provided to you by CoreCivic. These masks should not be altered in any way, including adding designs, coloring, or lettering.
CAN I KEEP THE MASK ON ALL THE TIME? You can wear your mask as long as you aren’t being asked to remove it to provide positive identiﬁcation.
HOW DO I WEAR THE MASK? Make sure the mask covers both your nose and mouth at all times, and adjusted as needed. Keep it below your eyes and out of your ﬁeld of vision, and don’t let it hang down below your neck.
WHEN SHOULDN’T I WEAR A MASK? Don’t wear a mask if it impairs your ability to breathe, fogs up your eye glasses, or impairs your vision.
HOW SHOULD I TAKE MY MASK OFF IF I WANT TO REUSE IT? Act as though the front of the mask is contaminated. Wash your hands thoroughly and remove the mask slowly and carefully using the ear loops on the side. Visually inspect it for contamination, or distortion in shape or form. Don’t lay the mask on a surface as it may contaminate the surface.
WHAT SHOULD I DO IF THE MASK IS DAMAGED? Any mask that is soiled, torn, or saturated should be thrown away in standard garbage bin as long as you don’t show any of the symptoms of COVID-19. If you are symptomatic, contact health services, and follow the current medical policies and procedures.
HOW LONG CAN I CONTINUE TO WEAR A MASK? You can continue to wear a cloth or paper mask as long as a State of Emergency is in effect for the COVID-19 outbreak in your state. However, permission may be revoked at the discretion of CoreCivic if necessary in order to comply with applicable state or federal orders, partner directives, to ensure the orderly operation of CoreCivic institutions, or to promote the health and safety of inmates and staff.
REMEMBER Even if you use a cloth or surgical paper mask, you should still follow all CDC issued guidelines to prevent the spread of COVID-19, including social distancing, frequent hand washing, and avoiding skin to skin contact with others.

Revised April 13, 2020

CORECIVIC-MLG000124

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Uso de Máscaras de tela o de papel quirúrgicas para Reos/Residentes
Pronto se le proporcionará con un paño o una mascarilla quirúrgica de papel que puede usar de forma voluntaria dentro de la instalación . Aquí hay algunas respuestas a preguntas comunes sobre el uso de estas máscaras.
¿QUÉ MÁSCARA PUEDO USAR? Tiene la opción de comenzar a usar inmediatamente un paño o una máscara de papel que CoreCivic le proporcionó. Estas mascaras no deben de alterarse de ninguna manera, ni agregar diseños, colores, o letras.
¿PUEDO MANTENER LA MÁSCARA TODO EL TIEMPO? Puede usar su máscara siempre que no le pidan que se la quite para proporcionar una identiﬁcación positiva.
¿CÓMO ME PONGO LA MÁSCARA? Asegúrese de que la máscara cubra su nariz y boca en todo momento, y ajústela según sea necesario. Manténgalo debajo de sus ojos y fuera de su campo de visión, y no permita que cuelgue debajo de su cuello.
¿CUÁNDO NO DEBERÍA USAR UNA MÁSCARA? No use una mascara si deteriora su capacidad de respirar, empaña sus ojos, o deteriora su visión.
¿CÓMO DEBO QUITARME LA MÁSCARA SI QUIERO REUTILIZARLA? Actúa como si el frente de la máscara estuviera contaminado. Lávese bien las manos y quítese la máscara lentamente y con cuidado usando los ganchos para los oídos a los lados. Inspeccione la mascara visualmente por contaminación o distorsion. No coloque la máscara sobre una superﬁcie, ya que puede contaminarla.
¿QUÉ DEBO HACER SI LA MÁSCARA ESTÁ DAÑADA? Cualquier máscara que esté sucia, rasgada o saturada debe tirarse a la basura estándar siempre que no muestre ninguno de los síntomas de COVID-19 . Si usted tiene síntomas contacte a los servicios de salud, y siga las políticas y procedimientos de médicos actuales.
¿CUÁNTO TIEMPO PUEDO SEGUIR USANDO UNA MÁSCARA? Puede continuar usando una máscara de tela o papel siempre y cuando exista un estado de emergencia para el brote de COVID-19 en su estado. Sin embargo, se puede revocar el permiso a discreción de CoreCivic si es necesario para cumplir con las órdenes estatales o federales aplicables, las directivas de los socios, para garantizar el funcionamiento ordenado de las instituciones de CoreCivic o para promover la salud y la seguridad de los reclusos y el personal.

RECUERDA Si usa una máscara de tela o papel quirúrgica , debe seguir todas las direcciones de la CDC publicadas para prevenir la propagación de COVID-19, incluyendo el distanciamiento social, lavado frecuente de manos y evitar el contacto piel a piel con otros.

Revised April 13, 2020

CORECIVIC-MLG000125

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ATTACHMENT 18
Declaration of K. Kline

Case 2:20-cv-00901-DJH--DMF Document 16-5 Filed 05/14/20 Page 28 of 33 CORECIVIC-MLG000126

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 Case 2:20-cv-00901-DJH--DMF Document 16-6 Filed 05/14/20 Page 1 of 78
ATTACHMENT 19
Declaration of K. Kline

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ATTACHMENT 20
Declaration of K. Kline

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ATTACHMENT 21
Declaration of K. Kline

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ATTACHMENT 22
Declaration of K. Kline

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ATTACHMENT 23
Declaration of K. Kline

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ATTACHMENT 24
Declaration of K. Kline

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COVID-19 Information for Inmates and Detainees
The novel coronavirus, or COVID-19, is a respiratory illness that is easily transmissible through the air and on surfaces if prevention measures are not followed.
We all need to do our part to keep our facility safe and healthy. SYMPTOMS OF COVID-19

Fever

Coughing

Shortness of breath

COVID-19 SPREADS THROUGH

Close contact (about 6 feet)

Coughing and sneezing

Touching a contaminated surface and then touching your eyes, nose or mouth

HOW TO PREVENT COVID-19

KEEP 6 FEET DISTANCE

• Avoid close contact with people who are sick • Don’t touch your eyes, nose, or mouth • Cover your cough or sneeze with a sleeve, not your
hand

• Wash your hands often with soap and water for at least 20 seconds, especially before eating, and after going to the bathroom, blowing your nose, coughing, or sneezing

If you start to feel any of the symptoms listed, ﬁll out a sick call request immediately. Alert a staff member if you notice someone else looking unwell. Requests consistent with the symptoms of COVID-19 will be prioritized.

CORECIVIC-MLG000180

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ATTACHMENT 25
Declaration of K. Kline

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ATTACHMENT 26 Declaration of K. Kline

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CoreCivic/Central Arizona Florence Correctional Complex TOWN HALL MEETING RECORD

Unit: ______800__________________

Time Meeting started: __ 0904 hrs._____

Date of Meeting: ____3/12/2020_______

Time Meeting Ended: ___ 1033 hrs._____

Staff Attending the Meeting:

A_____0904-0918__________________ B_____0919-0932__________________ C_____0932-0947__________________ D_____0947-1001__________________ E_____1007-1024__________________ F_____1024-1033__________________

Unit Manager: ______Aguilar ____________

Correctional Counselor: ___Madoneczky and Cordova ________________

Case Manager: __B. Gonzalez and J. Gomez_________________Other: __________

Subject Covered by Unit Management Team:

1. PREA - Zero tolerance, you can report any occurrence to any staff member or use the phone number provided in the pods.
Verbal Reporting Calling the facility's twenty-four (24) hour toll-free notification telephone
number;
Verbally telling any employee, including the facility Chaplain;
Calling or writing someone outside the facility who can notify facility staff;
Calling the Office of Inspector General (OIG).
Written Reporting
Submitting a request to meet with Health Services staff and/or reporting to a Health Services staff member during sick call;
Submitting a facility grievance form as outlined below in 14-2.4. L.;
Forwarding a letter, sealed and marked “confidential”, to the Warden/Administrator or any other employee;
Forwarding a letter to the CoreCivic Managing Director, Facility Operations,
Calling or writing someone outside the facility who can notify facility staff;
PREA – Cero tolerancias, puede informar de cualquier suceso a cualquier miembro del personal o usar el número de teléfono proporcionado en las unidades.
Informes verbales
Llamar a número de teléfono de notificación de veinticuatro 24 horas de la institución;

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Case 2:20-cv-00901-DJH--DMF Document 16-6 Filed 05/14/20 Page 60 of 78 Diciendo verbalmente a cualquier empleado, incluyendo al capellán de
la institución;
Informes escritos
Presentando una solicitud para reunirse con el personal de servicios de salud o informe a un miembro del personal de los servicios de salud durante llamada de enfermos;
Enviar un formulario de queja de institución como se indica a continuación en 14-2.4. L.;
Una carta, sellado y marcado "confidencial", el director o administrador o cualquier otro empleado;
Envío una carta al Director Gerente de CoreCivic, las operaciones de institución,
Llamando o escribiendo a alguien fuera de la institución que puede notificar a personal de la institución;
2. CELL COMPLIANCE- All cells need to be in compliance as posted on the housing/pod rules in each pod. Specifically all beds need to be made by 0800 daily, there are to be no pictures up on the walls, clotheslines are NOT permitted. Lights, window and vents will remain clear at all times. Failure to comply may result in disciplinary action.
Todos los cuartos necesitan estar en cumplimiento como en la normativa de vivienda en cada unidad. Específicamente todas las camas necesitan que estar tendidas para las 0800 horas todos los días. No pueden tener fotos en las paredes, líneas de ropa no se permiten. No tapen la luz, ventanas, ventilaciones en ningún tiempo. Puede ser sujeto a disciplinario
3. PERSONAL ITEMS LEFT OUT -You cannot leave out any personal items in the dayroom during counts or lockdowns. You can only have them out while you are currently using them and need to put them away in your cells when you are finished using them and during all lock down times. No clothing or personal items on the shower wall. No clothing draped on the laundry cart.
No se puede dejar artículos personales en las mesas o cualquier parte de la vivienda. Sólo puede tener hacia fuera mientras que usted está usando actualmente y necesita ponerlos lejos en sus cuartos cuando haya terminado de usarlos y durante de las cuentas. No pongan artículos personales o ropa en el área de los baños y no ponga a secar ropa en el carro de lavandería.
4. 3RD BUNK and SECURITY LIGHTS -All items must be cleared off the third bunk and light fixtures. No items are allowed on the third bunk or security lights. No exceptions.
Todos los articulo deben ser liberados de la tercera cama. Artículos no están permitidos en la tercera cama o arriba de las lámparas de seguridad. No hay excepciones.
5. PROPERTY BAGS – You are only allowed one property bag.
Se admite una bolsa de pertenencia por detenido.

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6. SANITATION -You cannot keep or store chemicals in your cell for any reason. If you are found to have chemicals in your cells, you will be subject to receive disciplinary action.
No pueden mantener o almacenar productos químicos en tu cuarto por cualquier motivo. Si encuentran para tener productos químicos en los cuartos, usted será sujeto a recibir acción disciplinaria
7. INMATE MOVEMENT – All inmates/detainees must be escorted by a staff to and from the departments calling for them. There will be no movement of unescorted inmates/detainees.
Todos los reclusos/detenidos deben ser acompañados por un personal hacia y desde los departamentos que los llaman. No habrá movimiento de reclusos/detenidos no escoltados.
8. TOP TIER TRAFFIC – The top tier is used for passing traffic. There should be no detainee sitting or standing on the top tier to watch TV or talking to one another. Please sit at the tables. Officers should be hindered from walking the stairs or top tier during a security check.
El nivel superior se utiliza para pasar el tráfico. No debe haber ningún detenido sentado o de pie en el nivel superior para ver la televisión o hablar entre sí. Por favor, siéntese en las mesas. Los oficiales deben de tener libre para caminar por las escaleras o el nivel superior durante un control de seguridad.
9. HALL PASSES – Be advised, passes are to be used during the times noted on the pass. Do not abuse the pass system to come out at any time with it. You will be addressed immediately to report back to your housing unit after advising you of the proper times.
Tenga en cuenta que los pases deben utilizarse durante los horarios indicados. No abuse del sistema de pases para salir en cualquier momento con él. Se le dirigirá inmediatamente para regreso a su unidad de vivienda después de informarle de los tiempos indicados.
10. DAYROOM ACTIVITIES – Shirts must be worn at all times in the dayroom.
Las camisas deben usarse en todo momento en la vivienda.
11. POD PORTERS – Pod porters will no longer work during counts. Your job detail needs to be done during dayroom time. Chemicals and cleaning supplies will be issued to accommodate this change.
Los trabajadores ya no se quedarán afuera durante las cuentas. El detalle del trabajo debe hacerse durante el día. Se expedirán productos químicos y artículos de limpieza para adaptarse a este cambio.
12. VENTS – Please do not cover vents with paper/etc. or clog the vents with deodorant/toothpaste. Notify unit staff if the temperature is too cold in the cells or housing unit. Maintenance will then be contacted.
Por favor, no cubra las ventilaciones con papel/ etc. o obstruya las ventilaciones con desodorante / pasta de dientes. Informe al personal de la unidad si la temperatura es demasiado fría en las celdas o en la vivienda. A continuación, se pondrá en contacto con el mantenimiento.

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Case 2:20-cv-00901-DJH--DMF Document 16-6 Filed 05/14/20 Page 62 of 78 15. RAZORS -Razors need to be turned in for exchange even if it is broken with the blade.
Los rastreos de afeitar deben ser entregados para el intercambio, incluso si está roto con la navaja.
16. TOWELS/CLOTHE LINES –Please do not hang towels from the bunks to obstruct front view. Hang them on the side of the bunk. Do not hang clothing lines.
Por favor, no cuelgue toallas de las camas para obstruir la vista frontal. Cuelge las toallas a los lados y por favor no cuelgue las líneas de ropa.
17. BLUE UNIFORMS – Blue uniforms are not to be worn in the dayroom nor are you to sleep in them. They are to be worn for kitchen detail or working as a line server.
Los uniformes azules no deben usarse en la vivienda. Deben usarse para detalles de cocina o trabajar como servidor de línea.
18. CELL MOVES – You cannot move cells without permission. If you do a disciplinary report will be issued to you. All moves must be approved by the unit team after a review.
No puede mover celdas sin permiso. Si usted lo hace sin permiso, un informe disciplinario será entregado a usted. Todos los movimientos deben ser aprobados por el equipo de la unidad después de una revisión.
19. LINE FOOD AND CONSUMPTION - You are to consume your food from the chow line within one hour of receiving. Do not keep uncovered food in your cell as it attracts insects (ants) into your cell. It is unhygienic for food to be left out uncovered and untouched for days.
Usted debe consumir su comida de la línea dentro de una hora de recibir. No guarde los alimentos descubiertos en su celda, ya que atrae insectos (hormigas) a su celda. No es higiénico que los alimentos se dejen al descubierto y que los dejen durante días así.
20. FLAT RATE PRIORITY ENVELOPES AND BOXES – You are to bring your property you want mailed out to the office to pack up in priority boxes or envelopes. You cannot take them to your cell/housing unit.
Usted debe traer su propiedad que desea enviar por correo a la oficina para empacar en cajas de prioridad o sobres. No puede llevarlos a su celda/unidad de vivienda.
21. CORONA VIRUS (COVID-19) - Effective immediately, the following restrictions are being implemented as a preventative measure to limit exposure to US Marshals Service detainees to the COVID-19 virus:
x All social visitation (both contact and non-contact) is canceled.
x All volunteer activities are canceled and volunteer access to the facility is restricted.
x Attorney visitation will continue.

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Efecto inmediato, las siguientes restricciones se están aplicando como medida preventiva para limitar la exposición a los detenidos del servicio de Mariscal los Estados Unidos al virus COVID-19:
x Todas las visitas sociales (tanto de contacto como sin contacto) se cancelan.
x Todas las actividades de voluntariado se cancelan y el acceso voluntario de la institución está restringido.
x Las visitas de abogado continuarán
Concerns brought up by the Detainees:
Comments/Questions:
1. Can the TV's be on at night after 11pm? * No. TV's are not allowed to be on after 11pm.
Preocupaciones supuestas por los detenidos:
Comentarios/preguntas:
1. Se pueden prender las televisiones después de las 11pm? * No. Las televisiones no pueden prenderse después de las 11pm.

Chief of Unit Management:

Date:

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CoreCivic/Central Arizona Florence Correctional Complex TOWN HALL MEETING RECORD

Unit:______900__________________

Time Meeting Started:___0950

Date of Meeting:_4/13, 4/17 2020_______

Time Meeting Ended:____1015

Staff Attending the Meeting:

Unit Manager:______Fernandez_____________

Correctional Counselor: Melendrez, Muse______________________

Case Manager: Quintero_______________ Other: ___ Subject Covered by Unit Management Team:
1. PREA – There is ZERO tolerance for PREA. NO means NO and yes is NOT ALLOWED. Verbal comments, gestures, or actions that are sexual or insulting are not tolerated. There are /several ways to report PREA. One way to report is by report it to a staff member immediately. Respect one another including staff and inmates.
** PREA - Hay zero tolerancia para PREA. NO significa NO y SI no está permitido. Los comentarios verbales, gestos o acciones sexuales o insultantes no son tolerados. Hay varias maneras de informar PREA. No se permite masaje, no se acueste en la cama de otro preso, no se permite estar tocando, abrazando, ni besarse con otra confinada.
____________________________________________________________________ 2. Sanitation in cells and pods – We have noticed in the last week the sanitation is not what it needs to be. We have a new Unit Staff team here and we will be more engaged in the what goes on in the pods. We will conduct daily walks, looking for things in your cells which you can improve. ** Saneamiento en celdas y vainas: hemos notado en la última semana que el saneamiento no es lo que debe ser. Tenemos un nuevo equipo de personal de la unidad aquí y estaremos más comprometidos con lo que sucede en las cápsulas. Realizaremos caminatas diarias, buscando cosas en sus celdas que pueda mejorar. __________________________________________________________________ 3. We have been doing several things at this facility in keeping the population safe from Covid19. Continue to keep your areas clean. Keep your hands away from your face and be mindful of everyone's personal space. We are continuing to spray down handles, doors, etc. We hung up new information this week from our Corporate office regarding Covid. Review it and let us know if you have questions. ** Hemos estado haciendo varias cosas en esta instalación para mantener a la población a salvo de Covid19. Continúa manteniendo tus áreas limpias. Mantenga las manos alejadas de su rostro y tenga en cuenta el espacio personal de todos. Continuamos rociando manijas, puertas, etc. Esta semana colgamos nueva información de nuestra oficina corporativa sobre Covid. Revíselo y háganos saber si tiene preguntas. ____________________________________________________________________ 4. Lights being covered, bunks being made into tents at night - We are still seeing messy rooms, lights and vents covered. This must be fixed and must remain fixed all during the day. You cannot cover lights and vents at night time. Keep your cells and areas clean. You cannot hang sheets around your bunk while you sleep, prohibiting staff from walking by to see you. We will begin to remove the sheets, towels, blankets if you cover your areas. This will wake you up and cause issues for the cell. Keep them uncovered. ** Luces cubiertas, literas convertidas en carpas por la noche. Todavía vemos habitaciones desordenadas, luces y conductos de ventilación cubiertos. Esto debe ser

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reparado y debe permanecer fijo durante todo el día. No puede cubrir luces y respiraderos por la noche. Mantenga sus celdas y áreas limpias. No puedes colgar sábanas alrededor de tu litera mientras duermes, lo que prohíbe que el personal pase a verte. Comenzaremos a quitar las sábanas, toallas, mantas si cubre sus áreas. Esto lo despertará y causará problemas a la célula. Manténgalos descubiertos. ____________________________________________________________________ 5. The court movement and transfer movement has changed a lot with Covid19 here. We are conducting court appearances here at this facility on VTC (video teleconference.) As of right now, BOP movement has slowed down but they are still taking people they want. We do not know who or what the criteria is but they are still moving who they feel meets their criteria. ** El movimiento de la corte y el movimiento de transferencia ha cambiado mucho con Covid19 aquí. Estamos llevando a cabo apariciones en la corte aquí en este centro en VTC (video teleconferencia). En este momento, el movimiento de BOP se ha ralentizado pero todavía están tomando a las personas que quieren. No sabemos quién o cuáles son los criterios, pero todavía están moviendo a quienes consideran que cumplen con sus criterios. ____________________________________________________________________ 6. All population at CAFCC have been issued a mask for your personal wear. You will only be issued the 1 mask. You are not required to wear the mask but you can. If you are wearing it, you will have to remove it at staff's request for verification purposes. Remember, keep your hands away from your face and washing them is the best prevention. ** Toda la población de CAFCC recibió una máscara para su uso personal. Solo se le emitirá la 1 máscara. No está obligado a usar la máscara, pero puede hacerlo. Si lo lleva puesto, deberá quitarlo a solicitud del personal para fines de verificación. Recuerde, mantenga las manos alejadas de su cara y lavarlas es la mejor prevención.
Concerns brought up by the Detainees: 1. Can we have wax for the tables we are redoing? 2. My family said they sent in money a week ago but I haven't received it. 3. Can we get the book cart swapped out with different books? 4. Are staff washing their hands when they get here? 5. Are they doing early releases from here because of Covid? Comments: 1. We are looking for some sealer for the tables, we will get some soon. 2. See us after this and we will get your info. 3. Yes, we can get it changed out. 4. Staff are well aware of the precautions we are taking here at this facility. We are all in this together. It's not us against you. We have several stations around the facility for staff to use hand sanitizer. We do not want to take anything home to our families nor do we want to bring any contamination into here. 5. We have not heard anything for this facility about early releases. If we do, we will let you know.
Preocupaciones planteadas por los detenidos: 1. ¿Podemos rehacer las mesas de la sala de día? 2. Tengo un problema con mi pin, ¿a quién puedo preguntar al respecto? 3. ¿Podemos intercambiar el carrito de libros con diferentes libros? 4. Se supone que el miércoles es día de ropa blanca, ¿está quieto cuando lo cambias a mantas? Comentarios: 1. No tenemos el suministro de papel de lija en este momento, solo mantenga las mesas limpias. 2. Véanos después de esto. 3. Sí, podemos cambiarlo. 4. Terminaremos esta semana y ajustaremos el horario. Lo verás publicado pronto.

Chief of Unit Management:

Date:

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CoreCivic/Central Arizona Florence Correctional Complex TOWN HALL MEETING RECORD

Unit:______1200__________________

Time Meeting Started:___0930

Date of Meeting:____5/8/2020_______

Time Meeting Ended:____1440

Staff Attending the Meeting:

Unit Manager:______Meyer_____________

Correctional Counselor: _________Valenzuela_____________

Case Manager:_____Rodriguez_______

Other: ___C/O Orozco

Subject Covered by Unit Management Team:

1.__ PREA – There is ZERO tolerance for PREA. NO means NO and yes is NOT ALLOWED. Verbal
comments, gestures, or actions that are sexual or insulting are not tolerated. There are /several ways to report PREA. One way to report is by report it to a staff member immediately. Respect one another including staff and inmates. Report!
**PREA - Hay zero tolerancia para PREA. NO significa NO y SI no está permitido. Los comentarios verbales, gestos o acciones sexuales o insultantes no son tolerados. Hay varias maneras de informar PREA. No se permite masaje, no se acueste en la cama de otro preso, no se permite estar tocando, abrazando, ni besarse con otra confinada.Report!
______________________________________________________________________
2 COVID-19 We currently a very minimal amount of confirmed cases at our facility. Several negative tests. We are strictly following all CDC requirements. We will continue all sanitation procedures. Further Precautions you may take.
1. Social Distancing- Separate yourselves from each other as much as the area allows. 2. Wear your mask- wear your mask at all times even in the pods and in your cells. 3. Distance yourself when eating- eat in your cell or stagger when you eat at the table
among other inmates. 4. Sleep away from one another- Sleep with your feet toward the other persons head. If
you're in a gang cell attempt to sleep feet to feet to the person next to you. 5. Wash your hand- wash as much as possible after touching multiple surfaces or surfaces
others frequently touch
COVID-19 Actualmente tenemos una cantidad mínima de casos confirmados en nuestras instalaciones. Varias pruebas negativas. Estamos siguiendo estrictamente todos los requisitos de los CDC. Continuaremos todos los procedimientos de saneamiento. Precauciones adicionales que puede tomar. 1. Distanciamiento social: separarse el uno del otro tanto como lo permita el área. 2. Use su máscara: use su máscara en todo momento, incluso en las vainas y en sus celdas. 3. Distanciarse al comer: comer en su celda o tambalearse cuando come en la mesa entre otros reclusos. 4. Duerma lejos el uno del otro: duerma con los pies hacia la cabeza de la otra persona. Si estás en una celda de pandillas, intenta dormir pies a pies con la persona que está a tu lado. 5. Lávese las manos

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Case 2:20-cv-00901-DJH--DMF Document 16-6 Filed 05/14/20 Page 67 of 78 lo más posible después de tocar múltiples superficies o superficies que otras tocan con frecuencia.
3. Medical Record Requests. There will now be a charge. See posting for procedure.
Solicitudes de registros médicos. Ahora habrá un cargo. Ver publicación para el procedimiento
4. Opioid Exposure. We have had several instances of attempted
introduction of opioids into our facility that thankfully have been discovered. On the chance that something gets through, be advised of the symptoms of overdose: Respiratory Distress/Depression, Nervous System depression, Drowsiness, Reduced or lost consciousness, Dizzy, Vomiting, Limp Body. Contact Staff Immediately!
Exposición a opioides. Hemos tenido varios casos de intentos de introducción de opioides en nuestras instalaciones que afortunadamente se han descubierto. En caso de que algo pase, tenga en cuenta los síntomas de una sobredosis: dificultad respiratoria / depresión, depresión del sistema nervioso, somnolencia, disminución o pérdida de la conciencia, mareos, vómitos, cojera. ¡Comuníquese con el personal de inmediato!
4. Laundry-SCHEDULE- if you mix colors or send the wrong things, they will NOT be washed.
HORARIO DE LAVANDERÍA: si mezcla colores o envía cosas incorrectas, NO se lavarán
5. KIOSKS and RESPECT- I hear about respect from you all. Think about it. Damaging your living space and kiosks is disrespectful to EVERYONE! The facility, your fellow inmates, and yourself.
KIOSCOS Y RESPETO: escucho sobre el respeto de todos ustedes. Piénsalo. ¡Dañar su espacio vital y sus quioscos es una falta de respeto para TODOS! La instalación, sus compañeros de prisión y usted mismo.
6. Pill Call. Expect to comply with a proper hand and mouth check!
. Llamada de píldora. ¡Espere cumplir con un control adecuado de la mano y la boca!

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7. Grievances are for grievances only. If you need something that we can provide, ask us in person or via the kiosks. A grievance takes 10 days to respond. Other forms are much quicker. When requesting Medical-Do not use a grievance. Face to Face form is what gets you to medical the quickest.
Las quejas son solo para quejas. Si necesita algo que podamos proporcionar, pregúntenos en persona o a través de los quioscos. Una queja toma 10 días para responder. Otras formas son mucho más rápidas. Cuando solicite un servicio médico, no utilice un reclamo. La forma cara a cara es lo que te lleva al médico más rápido.
8. When leaving the facility you must have your razor, clothing, towels, cup, spork and all other items that were issued to you. No Hobby Craft! Al salir de la instalación, debe tener su navaja, ropa, toallas, taza, spork y todos los demás artículos que le fueron entregados. No Hobby Craft!
9. Doors will only open with staff present. Be Patient!
Las puertas solo se abrirán con el personal presente. ¡Se paciente!
10. Después de usar el quiosco, asegúrate de cerrar sesión. No deje su cuenta abierta para que otros la usen. . Después de usar el quiosco, asegúrate de cerrar sesión. No deje su cuenta abierta para que otros la usen.
. Después de usar el quiosco, asegúrate de cerrar sesión. No deje su cuenta abierta para que otros la usen.
11. Health and Welfare- There is much sickness going around now. Wash hands. Keep your living area clean. Cover sneeze and cough.
Salud y Bienestar- Hay mucha enfermedad pasando por ahí ahora. Lávate las manos. Mantenga su sala de estar limpia. Cubra el estornudo y tose.
12. INCENTIVES-You must earn them. Cell compliance, sanitation, and Incidents are all taken into consideration.
. INCENTIVOS: debes ganarlos. El cumplimiento de las celdas, el saneamiento y los incidentes se tienen en cuenta.

Revised 06/13/19

CORE1C8-I1V0I3CB-MLG000191

Case 2:20-cv-00901-DJH--DMF Document 16-6 Filed 05/14/20 Page 69 of 78 Concerns brought up by the Detainees:
1. Are we going to be released because of COVID? 2. Has anyone died here from COVID? 3. Can we have more playstations to help with the stress? 4. When will visits begin again? 5. Where do we get the form for medical record requests.
Comments:
1. There is no talk of that, that I have heard. That would be a better question for the USMS or BOP.
2. No. 3. The play stations will continue to be used as a pod incentive, only. 4. Unfortunately, we have no way of knowing that. 5. I will find it and get it to you.

Chief of Unit Management:

Date:

Revised 06/13/19

CORE1C8-I1V0I3CB-MLG000192

Case 2:20-cv-00901-DJH--DMF Document 16-6 Filed 05/14/20 Page 70 of 78
CoreCivic/Central Arizona Florence Correctional Complex TOWN HALL MEETING RECORD

Unit: ______800__________________

Time Meeting started: __ 1134 hrs._____

Date of Meeting: ___5/1/2020_______

Time Meeting Ended: ___ 1250 hrs._____

Staff Attending the Meeting:

A_____SEG COHORT______________ B_____1238-1247_________________ C_____1134-1150_________________ D_____1250-1219__________________ E_____1222-1228__________________ F_____1230-1236__________________

Unit Manager: ______Aguilar ____________

Correctional Counselor: ___Madoneczky and Cordova ________________

Case Manager: __E. Selby and J. Gomez_________________ Other: __________

Subject Covered by Unit Management Team:

1. PREA - Zero tolerance, you can report any occurrence to any staff member or use the phone number provided in the pods.
Verbal Reporting Calling the facility's twenty-four (24) hour toll-free notification telephone
number;
Verbally telling any employee, including the facility Chaplain;
Calling or writing someone outside the facility who can notify facility staff;
Calling the Office of Inspector General (OIG).
Written Reporting
Submitting a request to meet with Health Services staff and/or reporting to a Health Services staff member during sick call;
Submitting a facility grievance form as outlined below in 14-2.4. L.;
Forwarding a letter, sealed and marked “confidential”, to the Warden/Administrator or any other employee;
Forwarding a letter to the CoreCivic Managing Director, Facility Operations,
Calling or writing someone outside the facility who can notify facility staff;
PREA – Cero tolerancias, puede informar de cualquier suceso a cualquier miembro del personal o usar el número de teléfono proporcionado en las unidades.
Informes verbales
Llamar a número de teléfono de notificación de veinticuatro 24 horas de la institución;

Revised 06/13/19

CORE1C8-I1V0I3CB-MLG000193

Case 2:20-cv-00901-DJH--DMF Document 16-6 Filed 05/14/20 Page 71 of 78 Diciendo verbalmente a cualquier empleado, incluyendo al capellán de
la institución;
Informes escritos
Presentando una solicitud para reunirse con el personal de servicios de salud o informe a un miembro del personal de los servicios de salud durante llamada de enfermos;
Enviar un formulario de queja de institución como se indica a continuación en 14-2.4. L.;
Una carta, sellado y marcado "confidencial", el director o administrador o cualquier otro empleado;
Envío una carta al Director Gerente de CoreCivic, las operaciones de institución,
Llamando o escribiendo a alguien fuera de la institución que puede notificar a personal de la institución;
2. CELL COMPLIANCE- All cells need to be in compliance as posted on the housing/pod rules in each pod. Specifically all beds need to be made by 0800 daily, there are to be no pictures up on the walls, clotheslines are NOT permitted. Lights, window and vents will remain clear at all times. Failure to comply may result in disciplinary action.
Todos los cuartos necesitan estar en cumplimiento como en la normativa de vivienda en cada unidad. Específicamente todas las camas necesitan que estar tendidas para las 0800 horas todos los días. No pueden tener fotos en las paredes, líneas de ropa no se permiten. No tapen la luz, ventanas, ventilaciones en ningún tiempo. Puede ser sujeto a disciplinario
3. PERSONAL ITEMS LEFT OUT -You cannot leave out any personal items in the dayroom during counts or lockdowns. You can only have them out while you are currently using them and need to put them away in your cells when you are finished using them and during all lock down times. No clothing or personal items on the shower wall. No clothing draped on the laundry cart.
No se puede dejar artículos personales en las mesas o cualquier parte de la vivienda. Sólo puede tener hacia fuera mientras que usted está usando actualmente y necesita ponerlos lejos en sus cuartos cuando haya terminado de usarlos y durante de las cuentas. No pongan artículos personales o ropa en el área de los baños y no ponga a secar ropa en el carro de lavandería.
4. 3RD BUNK and SECURITY LIGHTS -All items must be cleared off the third bunk and light fixtures. No items are allowed on the third bunk or security lights. No exceptions.
Todos los articulo deben ser liberados de la tercera cama. Artículos no están permitidos en la tercera cama o arriba de las lámparas de seguridad. No hay excepciones.
5. PROPERTY BAGS – You are only allowed one property bag.
Se admite una bolsa de pertenencia por detenido.

Revised 06/13/19

CORE1C8-I1V0I3CB-MLG000194

Case 2:20-cv-00901-DJH--DMF Document 16-6 Filed 05/14/20 Page 72 of 78 6. SANITATION -You cannot keep or store chemicals in your cell for any reason. If you are found to have chemicals in your cells, you will be subject to receive disciplinary action.
No pueden mantener o almacenar productos químicos en tu cuarto por cualquier motivo. Si encuentran para tener productos químicos en los cuartos, usted será sujeto a recibir acción disciplinaria
7. INMATE MOVEMENT – All inmates/detainees must be escorted by a staff to and from the departments calling for them. There will be no movement of unescorted inmates/detainees.
Todos los reclusos/detenidos deben ser acompañados por un personal hacia y desde los departamentos que los llaman. No habrá movimiento de reclusos/detenidos no escoltados.
8. TOP TIER TRAFFIC – The top tier is used for passing traffic. There should be no detainee sitting or standing on the top tier to watch TV or talking to one another. Please sit at the tables. Officers should be hindered from walking the stairs or top tier during a security check.
El nivel superior se utiliza para pasar el tráfico. No debe haber ningún detenido sentado o de pie en el nivel superior para ver la televisión o hablar entre sí. Por favor, siéntese en las mesas. Los oficiales deben de tener libre para caminar por las escaleras o el nivel superior durante un control de seguridad.
9. DAYROOM ACTIVITIES – Shirts must be worn at all times in the dayroom.
Las camisas deben usarse en todo momento en la vivienda.
10. VENTS – Please do not cover vents with paper/etc. or clog the vents with deodorant/toothpaste. Notify unit staff if the temperature is too cold in the cells or housing unit. Maintenance will then be contacted.
Por favor, no cubra las ventilaciones con papel/ etc. o obstruya las ventilaciones con desodorante / pasta de dientes. Informe al personal de la unidad si la temperatura es demasiado fría en las celdas o en la vivienda. A continuación, se pondrá en contacto con el mantenimiento.
11. RAZORS -Razors need to be turned in for exchange even if it is broken with the blade.
Los rastreos de afeitar deben ser entregados para el intercambio, incluso si está roto con la navaja.
12. TOWELS/CLOTHE LINES –Please do not hang towels from the bunks to obstruct front view. Hang them on the side of the bunk. Do not hang clothing lines.
Por favor, no cuelgue toallas de las camas para obstruir la vista frontal. Cuelge las toallas a los lados y por favor no cuelgue las líneas de ropa.
13. BLUE UNIFORMS – Blue uniforms are not to be worn in the dayroom nor are you to sleep in them. They are to be worn for kitchen detail or working as a line server.
Los uniformes azules no deben usarse en la vivienda. Deben usarse para detalles de cocina o trabajar como servidor de línea.

Revised 06/13/19

CORE1C8-I1V0I3CB-MLG000195

Case 2:20-cv-00901-DJH--DMF Document 16-6 Filed 05/14/20 Page 73 of 78 14. LINE FOOD AND CONSUMPTION - You are to consume your food from the chow line within one hour of receiving. Do not keep uncovered food in your cell as it attracts insects (ants) into your cell. It is unhygienic for food to be left out uncovered and untouched for days. Usted debe consumir su comida de la línea dentro de una hora de recibir. No guarde los alimentos descubiertos en su celda, ya que atrae insectos (hormigas) a su celda. No es higiénico que los alimentos se dejen al descubierto y que los dejen durante días así. 15. FLAT RATE PRIORITY ENVELOPES AND BOXES – You are to bring your property you want mailed out to the office to pack up in priority boxes or envelopes. You cannot take them to your cell/housing unit. Usted debe traer su propiedad que desea enviar por correo a la oficina para empacar en cajas de prioridad o sobres. No puede llevarlos a su celda/unidad de vivienda. 16. MANDATORY USE OF MASKS- ALL Inmates will wear mask when exiting their housing pods going to rec, medical, vtc, etc. NO Exceptions.
Uso de mascaras sera mandetorio. Cuando salgan al recreo, medico, vtc, etc. NO vera excepciones.
Concerns brought up by the Detainees:
Comments/Questions: 1. Can K1 workers trade out their masks?
Preocupaciones supuestas por los detenidos: 1. Pueden cambiar las mascaras los que trabajan la cocina?
Comentarios/preguntas:

Chief of Unit Management:

Date:

Revised 06/13/19

CORE1C8-I1V0I3CB-MLG000196

Case 2:20-cv-00901-DJH--DMF Document 16-6 Filed 05/14/20 Page 74 of 78 CORECIVIC-MLG000197

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Case 2:20-cv-00901-DJH--DMF Document 16-6 Filed 05/14/20 Page 76 of 78 CORECIVIC-MLG000199

Case 2:20-cv-00901-DJH--DMF Document 16-6 Filed 05/14/20 Page 77 of 78
ATTACHMENT 27 Declaration of K. Kline

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Case 2:20-cv-00901-DJH--DMF Document 16-7 Filed 05/14/20 Page 1 of 16
ATTACHMENT 28 Declaration of K. Kline

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ATTACHMENT 29 Declaration of K. Kline

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Case 2:20-cv-00901-DJH--DMF Document 16-7 Filed 05/14/20 Page 9 of 16
ATTACHMENT 30
Declaration of K. Kline

Case 2:20-cv-00901-DJH--DMF Document 16-7 Filed 05/14/20 Page 10 of 16 CORECIVIC-MLG000207

Case 2:20-cv-00901-DJH--DMF Document 16-7 Filed 05/14/20 Page 11 of 16
ATTACHMENT 31
Declaration of K. Kline

Case 2:20-cv-00901-DJH--DMF Document 16-7 Filed 05/14/20 Page 12 of 16 CORECIVIC-MLG000208

Case 2:20-cv-00901-DJH--DMF Document 16-7 Filed 05/14/20 Page 13 of 16 CORECIVIC-MLG000209

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Case 2:20-cv-00901-DJH--DMF Document 16-7 Filed 05/14/20 Page 15 of 16
ATTACHMENT 32
Declaration of K. Kline

Case 2:20-cv-00901-DJH--DMF Document 16-7 Filed 05/14/20 Page 16 of 16 CORECIVIC-MLG000211

Case 2:20-cv-00901-DJH--DMF Document 16-8 Filed 05/14/20 Page 1 of 41

1

DECLARATION OF GRIEVANCE COORDINATOR, A. PARTAIN

2

I, A. PARTAIN, make the following Declaration:

3

1. I am over the age of 18 years and competent to testify to the matters set

4 forth in this Declaration. I make this Declaration in support of the Defendants-

5 Respondents’ Joint Response to Plaintiffs-Petitioners’ Motion for Temporary

6 Restraining Order and Preliminary Injunction filed in Lucero-Gonzalez v. Kline, No.

7 CV-20-00901-PHX-DJH (DMF).

8
2. I am currently employed by CoreCivic as the Grievance Coordinator
9
(aka Grievance Officer) at CoreCivic’s Central Arizona Florence Correctional
10
Complex (“CAFCC”), located in Florence, Arizona. I have held this position since
11
June 2006, and have been employed with CoreCivic since November 15, 1999.
12
3. As the CAFCC Grievance Coordinator, I am familiar with CoreCivic’s
13
grievance policies and related systems and records discussed herein.
14
4. My duties and responsibilities as the Grievance Coordinator include
15
coordinating the detainee grievance process and insuring that grievance process is
16
administered in compliance with CoreCivic and government partner requirements. I
17
coordinate the investigation of grievances to determine the facts and reach a
18
reasonable and effective resolution. I also track detainee grievances to ensure timely
19
responses and maintain accurate records and logs in accordance with company
20
policy, procedure, and contract requirements.
21
5. I make the statements in this Declaration based upon my personal
22
knowledge and review of the grievance records of the detainees who are discussed
23
herein.
24
6. All Attachments to this Declaration are true and correct copies of the
25
documents indicated, and are records generated and maintained in the ordinary and
26
normal course of CoreCivic/CAFCC operations.
27

28

Case 2:20-cv-00901-DJH--DMF Document 16-8 Filed 05/14/20 Page 2 of 41

1

CAFCC GRIEVANCE PROCEDURE

2

7. CoreCivic/CAFCC Policy 14-103 sets forth the administrative remedies

3 available to United States Marshals Service (“USMS”) detainees for complaints

4 regarding facility conditions, treatment, policies, and procedures. This Policy is

5 included in the CAFCC/USMS Detainee Handbook, which is provided to detainees

6 during the intake process, and it is also available for detainees to review upon request

7 through the CAFCC law library. (See Excerpts of CAFCC/USMS Detainee

8 Handbook, Attachment 1).

9

8. Detainees sign an acknowledgement of receipt of the Detainee

10 Handbook during the intake/orientation process. (See Acknowledgments executed

11 by Petitioners, Attachment 2.)

12

9. Detainees are also provided education and instruction on the grievance

13 process by CAFCC detention staff during orientation and ongoing, as requested

14 and/or needed.

15

10. All grievance-related forms are available in all the housing units and,

16 for detainees in restrictive housing, in the indoor recreation enclosures. Forms are

17 also available upon request from staff.

18

11. Detainees may obtain assistance from a staff member or another

19 detainee when necessary to communicate the problem on the grievance form.

20

12. Upon receipt, all informal resolutions, grievances, and appeals are

21 entered into an electronic database called CoreCivic Apps. When an informal

22 resolution or grievance form is submitted, I enter the information into the system

23 (detainee name, number, and housing, date, category, and type of form), which then

24 generates a grievance number. Information regarding staff responses and subsequent

25 related forms are also docketed.

26

13. In addition to entering grievance information into CoreCivic Apps, I

27 enter the information into a Grievance Log, which is in an Excel format. (See

28 Excerpts of the relevant pages of the Grievance Log, Attachment 3).

2

Case 2:20-cv-00901-DJH--DMF Document 16-8 Filed 05/14/20 Page 3 of 41

1

14. Grievance forms (14-5A, 14-5B) are triplicate. One copy is given to the

2 detainee; one copy is placed in the detainees’ institutional file; and I retain a copy. A

3 copy is also scanned and kept in CoreCivic Apps.

4

15. Complaints submitted on a Sick Call form to medical staff is not a

5 grievance and does not comply with the grievance procedure.

6

16. CAFCC’s grievance process for USMS detainees is three steps:

7 (1) informal resolution (optional); (2) formal grievance (required); and (3) appeal

8 (required).

9

Step One: Informal Resolution

10

17. Detainees are encouraged to informally resolve their issue with the

11 appropriate staff prior to filing a grievance. (Attachment 1 at 31.)

12

18. If a detainee chooses to use the informal resolution process, the detainee

13 must submit an Informal Resolution Form 14-5A (“Information Resolution Form”)

14 within seven (7) calendar days of the alleged incident resulting in the grievance. (Id.)

15 They must place the Informal Resolution Form into the grievance mailbox located in

16 each housing unit.

17

19. Unless unusual circumstances are present, the detainee will receive a

18 response to an Informal Resolution Form within ten (10) calendar days of

19 submission. The Unit Manager for the particular housing unit responds. If unusual

20 circumstances exist, the Unit Manager will provide the detainee with written

21 documentation extending the response deadline. (Id.)

22

Step Two: Formal Grievance

23

20. If a detainee is not satisfied with the result of the informal resolution

24 process, or the detainee elects to forego the informal resolution process, the detainee

25 may proceed to step two of the grievance process. (Id.)

26

21. If the detainee utilized the informal resolution process, the detainee must

27 submit a Detainee Grievance Form 14-5B (“Grievance Form”) within five (5)

28 calendar days of the response date listed on the Informal Resolution Form and must

3

Case 2:20-cv-00901-DJH--DMF Document 16-8 Filed 05/14/20 Page 4 of 41

1 attach a copy of the Informal Resolution Form to the Grievance From. A detainee

2 may also file a Grievance Form at any time while the Informal Resolution Form is

3 still pending. (Id.)

4

22. If the detainee bypassed the informal grievance process, the detainee

5 must submit a Grievance Form within seven (7) calendar days of the date of the

6 alleged incident. The time for filing begins from the date the problem or incident

7 became known to the detainee. (Id.)

8

23. The detainee must complete page 1 of the Grievance Form and place it

9 into the grievance mailbox in the housing unit.

10

24. Unless a time extension has been granted, the detainee will receive a

11 response to the formal grievance from the Unit Manager within ten (10) calendar

12 days of submission. (Id.)

13

Step Three: Appeal

14

25. If a detainee is not satisfied with the decision of a formal or emergency

15 grievance, the detainee may complete the Appeal section of Detainee Grievance

16 Form 14-5B and resubmit the grievance in the grievance mailbox. The detainee must

17 file the Appeal within five (5) calendar days of the response date listed on the

18 Grievance Form. (Id. at 32–33)

19

26. The Grievance Officer will then forward the grievance appeal to the

20 Warden for review and a final response. (Id.) The Warden has ten (10) calendar

21 days to respond.

22

27. To fully and properly exhaust CAFCC’s grievance process, a detainee

23 must timely submit both a Formal Grievance and Appeal. Once the Warden has

24 responded, the attempt to administratively resolve will be considered exhausted.

25

28. The total time for the grievance process from filing of the Grievance

26 Form to a final Appeal decision is no more than twenty-seven (27) days, unless

27 unusual circumstances are present. (Id.)

28

4

Case 2:20-cv-00901-DJH--DMF Document 16-8 Filed 05/14/20 Page 5 of 41

1

Emergency Grievances

2

29. If the subject matter of a grievance is such that compliance with the

3 regular time requirements would subject the detainee to risk of personal injury, the

4 detainee may request that the grievance be considered an emergency grievance. (Id.

5 at 32)

6

30. The emergency grievance must detail the basis for requiring an

7 immediate response. (Id.)

8

31. If a detainee believes it is an emergent situation, the detainee must fill

9 out a Grievance Form and either affix the word “Emergency Grievance” on the

10 Grievance Form or place it in a sealed envelope with that label on the outside. (Id.)

11 Emergency grievances must be placed in the grievance mailbox.

12

32. Emergency grievances are forwarded to a designated Administrative

13 Duty Officer, who will review the grievance and determine whether it sets forth an

14 emergency. If it is determined that the grievance is not of an emergent nature, the

15 standard procedures for a Formal Grievance are followed. (Id.) If it is determined

16 that the grievance is an emergency, it will be resolved within one (1) calendar day of

17 receipt of the grievance and a written response provided to the detainee. (Id.)

18

PETITIONERS’ GRIEVANCE HISTORY

19

33. I have reviewed the grievance files, both in CoreCivic Apps and the

20 Grievance Log, of the Petitioners in this matter with the exception of “Claudia

21 Romero-Lorenzo.” After searching various databases, no detainee by that name (or

22 “Claudia Romero Lorenzo”) has been detained at CAFCC.

23

34. With the exception of detainee James Tyler Ciecierski, none of the

24 Petitioners submitted an Informal Resolution Form regarding allegations related to

25 CAFCC’s COVID-19 response protocols (e.g., complaints regarding sanitation,

26 social distancing, meal service, access to cleaning supplies, access to facial masks or

27 gloves, access to facial masks, access to medical care, COVID-19 testing, or COVID-

28 19 exposure/infection risk).

5

Case 2:20-cv-00901-DJH--DMF Document 16-8 Filed 05/14/20 Page 6 of 41

1

35. With the exception of detainee Marvin Lee Enos, none of the Petitioners

2 submitted a Formal Grievance with respect to allegations related to CAFCC’s

3 COVID-19 response protocols (e.g., complaints regarding sanitation, social

4 distancing, meal service, access to cleaning supplies, access to facial masks or gloves,

5 access to facial masks, access to medical care, COVID-19 testing, or COVID-19

6 exposure/infection risk).

7

Petitioner James Tyler Ciecierski

8

36. On May 4, 2020, an Informal Resolution Form was received from

9 Detainee Ciecierski and assigned No. W-US-2020-0487. He alleged that due to the

10 housing conditions not allowing social distancing and his severe Asthma, he could

11 die if he contracted COVID-19. (Grievance No. W-US-2020-0487, Attachment 4 at

12 1.) He requested hand sanitizer and a single cell.

13

37. On May 8, 2020, Unit Manager L. Meyer responded, reporting that

14 CAFCC was following all CDC guidelines for sanitation as well as providing a mask,

15 and that no housing change would be made at that time. (Id. at 2) Unit Manager

16 Meyer encouraged Detainee Ciecierski to notify staff immediately if he began to

17 display any symptoms, and assured him he would be seen by medical. (Id. at 2.)

18

38. Informal Resolution No. W-US-2020-0487 was entered into the

19 Grievance Log. (Attachment 3 at 4.)

20

39. Detainee Ciecierski noted on the Informal Resolution that he wanted to

21 appeal but, to date, Detainee Ciecierski has not filed a 14-5B Formal Grievance Form,

22 nor has he filed any additional Informal Resolutions related to

23 COVID-19 response protocols or any other matter.

24

40. Consequently, he has not exhausted available administrative remedies

25 on this complaint.

26

41. There is no record of Detainee Ciecierski submitting an informal

27 resolution, an emergency grievance, or a non-emergency grievance on either April

28 15, 2020 or April 30, 2020.

6

Case 2:20-cv-00901-DJH--DMF Document 16-8 Filed 05/14/20 Page 7 of 41

1

Petitioner Marvin Lee Enos

2

42. On April 20, 2020, Detainee Enos submitted a Grievance Form, No. W-

3 US-2020-0402, alleging the facility was not taking proper precautions such as

4 providing hand sanitizer for detainees, not giving correction officers face masks, and

5 not issuing enough cleaning supplies to allow detainees to disinfect their housing

6 units, and that the detainees were unable to socially distance themselves. He alleged

7 he felt that his life was in danger due to COVID-19. (Grievance No. W-US-2020-

8 0402, Attachment 5 at 1.) He also reported that the day room porters were not coming

9 out as often and that sometimes chemicals did not come back until a day later. This

10 grievance was not submitted as an emergency grievance. (Id.)

11

43. Unit Manager Fernandez responded on April 27, 2020, reporting that

12 CAFCC had several precautions in place for staff and detainees to clean and sanitize,

13 and that each cell had an assigned spray bottle. (Id.) Case Manager Fernandez

14 further responded that the facility was following CDC guidelines pertaining to

15 sanitation, that masks had been distributed to all detainees, that all staff would wear

16 a mask, and that supervisors in the units would adjust some porter schedules to allow

17 day room sanitation, shower sanitation, and cell cleaning. (Id.)

18

44. Grievance No. W-US-2020-0402 was entered into the Grievance Log.

19 (Attachment 3 at 2.)

20

45. To date, Detainee Enos has not appealed this grievance response, and

21 therefore he has not exhausted available administrative remedies on this complaint.

22

46. There is no record of Detainee Enos filing an informal resolution, an

23 emergency grievance, or a non-emergency grievance on April 19, 2020, or on April

24 22, 2020.

25

Petitioner Maria Guadalupe Lucero-Gonzalez

26

47. Although Detainee Lucero-Gonzalez submitted only two (2) medical

27 grievances, neither contained any allegations related to CAFCC’s COVID-19

28 response protocols.

7

Case 2:20-cv-00901-DJH--DMF Document 16-8 Filed 05/14/20 Page 8 of 41

1

48. On March 3, 2020, Detainee Lucero-Gonzalez submitted a Grievance

2 Form, No. W-US-2020-0161, alleging her prescription for Flexerol had expired, she

3 was not receiving proper medical care for her kidney problem that “may be

4 cancerous,” and her pain medication, Naproxen, was not adequate. (Grievance No.

5 W-US-2020-0161, Attachment 6 at 1.) She requested better pain medication, proper

6 medical care/attention, and to see a physician ASAP to avoid the progression or

7 spread of her health issue. This grievance was not submitted as an emergency

8 grievance. (Id.)

9

49. A Registered Nurse (“RN”) responded on March 11, 2020, reporting

10 that Detainee Lucero-Gonzalez had been seen by a nurse, her Flexerol had been

11 reordered, orders for Naproxen and Acetaminophen as needed were placed, she was

12 seen for an outside consult, had been seen by Licensed Independent Contractor, and

13 had follow appointments scheduled. (Id. at 2) It was noted that this Grievance Form

14 was resolved per detainee Lucero-Gonzales who acknowledged receipt of the

15 Response. (Id. at 2.)

16

50. Grievance No. W-US-2020-0161 was entered into the Grievance Log.

17 (Attachment 3 at 1.)

18

51. On April 20, 2020, Detainee Lucero-Gonzalez submitted a Grievance

19 Form, No. W-US-2020-0458, alleging that medical staff was not taking the measures

20 needed and that she needed to be seen by someone who understood her condition.

21 (Grievance No. W-US-2020-0458, Attachment 7 at 1.) She requested medical staff

22 to find a solution and treat for her medical issues. This grievance was not submitted

23 as an emergency grievance. (Id.)

24

52. An RN responded on May 5, 2020, reporting that she had investigated

25 Detainee Lucero-Gonzalez’s grievance and had found she had been seen by an LIP

26 who explained that due to the pandemic, additional outside testing had been delayed

27 at that time, her medications had been reordered, and she had follow up appointments

28 with the LIP at the facility at which time she could discuss the matter and would be

8

Case 2:20-cv-00901-DJH--DMF Document 16-8 Filed 05/14/20 Page 9 of 41

1 provided updates. (Id. at 2) It was noted that this Grievance was resolved per

2 detainee Lucero-Gonzales who acknowledged receipt of the Response. (Id. at 2.)

3

53. Grievance No. W-US-2020-0458 was entered into the Grievance Log.

4 (Attachment 3 at 3.)

5

54. To date, Detainee Lucero-Gonzalez has not appealed either of these

6 grievance responses and therefore she has not exhausted available administrative

7 remedies related to same.

8

55. Detainee Lucero-Gonzalez has not submitted any grievances related to

9 CAFCC’s COVID-19 response protocols. As such she has not exhausted available

10 administrative remedies on these complaints.

11

56. There is no record that Detainee Lucero-Gonzalez submitted an

12 informal resolution, an emergency grievance, or a non-emergency grievance on May

13 1, 2020.

14

Petitioner Claudia Romero-Lorenzo

15

57. As noted above, there is no record of a detainee by the name of Claudia

16 Romero-Lorenzo currently or previously detained at CAFCC, and therefore there is

17 no grievance history relating to an individual by that name.

18

58. I searched CoreCivic Apps and the Grievance Log, and there are only

19 four detainees with the first name Claudia: Claudia Isabel Romero, Claudia Romero

20 Lopez, Claudia Castello, and Claudia Garcia-Quiroz. None of these detainees have

21 submitted any grievances related to CAFCC’s COVID-19 response protocols. In

22 fact, only Claudia Castello and Claudia Garcia-Quiroz have any grievance history.

23 On March 10, 2020, Detainee Claudia Castello submitted a Formal Grievance related

24 to food service. In 2018, Detainee Claudia Garcia-Quiroz submitted a Formal

25 Grievance regarding housing at another facility.

26

Petitioner Tracy Ann Peuplie

27

59. Detainee Peuplie has not submitted any grievances related to CAFCC’s

28 COVID-19 response protocols.

9

Case 2:20-cv-00901-DJH--DMF Document 16-8 Filed 05/14/20 Page 10 of 41

Case 2:20-cv-00901-DJH--DMF Document 16-8 Filed 05/14/20 Page 11 of 41

INDEX TO ATTACHMENTS DECLARATION OF A. Partain
Lucero-Gonzalez v. Chris Kline, et al. No. 2:20-cv-00901-DJH-DMF

ATTACHMENT

DESCRIPTION

1

CAAFCC USMS Detainee Handbook

2

Acknowledgments of Receipt of Handbook

3

Excerpts of CAFCC Grievance Log

4

Enos Informal Resolution W-US-2020-0487

5

Ciecierski Grievance W-US-2020-0402

BATES NOS.
CORECIVICMLG0000007CORECIVICMLG000013-000017 CORECIVICMLG000018-000021 CORECIVICMLG000022-000023 CORECIVICMLG000024-000025

6

Lucero-Gonzalez Grievance W-US-2020-0161

CORECIVIC-

MLG000026-000027

7

Lucero-Gonzalez Grievance W-US-2020-0458

CORECIVIC-

MLG000028-000029

Case 2:20-cv-00901-DJH--DMF Document 16-8 Filed 05/14/20 Page 12 of 41
ATTACHMENT 1 Declaration of A. Partain

Case 2:20-cv-00901-DJH--DMF Document 16-8 Filed 05/14/20 Page 13 of 41 CORECIVIC-MLG000007

Case 2:20-cv-00901-DJH--DMF Document 16-8 Filed 05/14/20 Page 14 of 41

Table of Contents

Page

3

Introduction/Introducción

Page

3

Admittance/Admitencia

Page

4

Basic Responsibilities/Responsabilidades Basico

Page

5

Unit Rules/Reglas de la unidad

Page

6

Security Information/Información de Seguridad

Page

8

Emergency-Evacuation/Emergencia-Evacuación

Page

8

Property/Propiedad

Page

9

Clothing-Laundry-Barber/Ropa-Lavandería-Corte de Pelo

Page

11 Sanitation/Sanitación

Page

11 Meals/Comida

Page

12 Health Services/Servicios de Salud

Page

13 Detainee Account/Cuenta de Detenido

Page

15 Commissary/Comisario

Page

16 Indigent Supplies/Suministros Indigentes

Page

17 Detainee Programs/Programas Para Detenidos

Page

18 Library/Law Library/Telephone/Legal Services

Biblioteca/Biblioteca de Ley/Teléfono/Servicios Legales

Page

19 Correspondence/Correspondencia

Page

20 Visitation/Visitación

Page

23 Court Appearances/Presentación a Corte

Release-Transfer Preparation/Preparación de Libertad-Transferencia

Page

24 Drug/Intoxicant Testing/Examen de Droga/Bebida Alcohólica

Page

25 STG- Gang Activity/STG-Actividad de Pandillas

Page

25 Offense and Penalty Code & Disciplinary Procedures

Ofensa y Multas y Procedimientos Disciplinarios

Page

31 Grievance Procedure/Procedimiento de Quejas

Page

34 Access to Programs/Accesso a Programas

Page

35 Detainee Rights and Responsibilities

Derechos y Responsabilidades de Detenidos

Page

37 Detainee Classification System/Proceso de clasificación

2 CORECIVIC-MLG000008

Case 2:20-cv-00901-DJH--DMF Document 16-8 Filed 05/14/20 Page 15 of 41
permanecer callado durante la corte y lo que dice durante la corte podrá ser usado en su contra en una corte de criminal.
Procedimientos Después de una Emergencia En evento de un desorden en la institución, que necesita acción de emergencia, todas o parte de esta regulas pueden temporalmente ser suspendidas. Cualquier Detenido que está involucrado en la emergencia puede ser retenido sin una corte disciplinaria o durante la emergencia. Al restablecer el orden, todos los detenidos que estaban retenidos estarán sujetos al procedimientos de esta regula.
Grievance Procedure/Procedimento de Quejas
CAFCC has an informal resolution process in place. Detainees are encouraged to utilize the informal resolution process, through the Unit Team, concerning questions, disputes or complaints prior to the submission of a formal grievance. Informal Grievance Forms (14-5A) and Formal Grievance Forms (14-5B) are available in your housing areas. We ask that you make a genuine effort to resolve your issue with the appropriate staff prior to filing a grievance. If a Detainee does not receive resolution in the informal process, he/she may file a formal grievance. CoreCivic will provide a means for all detainees to address complaints regarding facility conditions, treatment, and policies and procedures. Many matters can and should be resolved directly and promptly between the detainee and institutional staff. The grievance process will include an informal resolution option and an appeal process. (FPBDS g.9.1) all complaints should be assessed in a fair and impartial manner. Resolution in the best interest of the detainee and the facility should be the primary goal.
The grievance system is not intended to be used for requests. Please utilize the kiosk system or request forms for facility requests.
Grievable matters Violation of the state and federal laws, regulations, or court decisions, including but not limited to violations of the Americans with Disabilities Act (ADA), constitutional rights, etc. ; -application of rules, policies, and/or procedures towards Detainees over which CoreCivic has control. -Individual staff and Detainee actions, including any denial of access to the informal resolution or grievance procedure. -Reprisals against Detainees for utilizing the informal resolution or grievance processes; and -Any other matter relating to the conditions of care and supervision within the authority of CoreCivic.
Non-Grievable Matters -State and Federal court decisions -State and Federal laws and regulations -U.S. Marshals Service (USMS) Standards, Decision, Or Matters; -Note: USMS standards, decisions, or matters shall be grieved in accordance with the regulations of the USMS. -Disciplinary actions (all disciplinary action must be addressed in accordance with disciplinary procedures in place at the facility); -Property issues (all property issues must be addressed in accordance with property procedures in place at the facility); -Classification status (all classification status must be addressed in accordance with classification procedures in place at the facility); and -Alleged PREA (Prison Rape Elimination Act) incidents. Should a report be submitted and received as a detainee grievance, it will be immediately referred to the facility investigator or Administrative Duty Officer (ADO) and processed in accordance with CoreCivic policy 14-103 Sexual Abuse And Prevention And Response (USMS).
If you do wish to pursue a formal complaint, it is important that the procedures outlined below be followed in order to ensure that your grievance is promptly addressed. You shall never be subjected to retaliation, reprisal or harassment for use of or participation in the grievance procedure. The Warden will promptly and thoroughly investigate any allegations of this nature. Grievance forms are available in your housing areas. Informal Grievance Procedures
31
CORECIVIC-MLG000009

Case 2:20-cv-00901-DJH--DMF Document 16-8 Filed 05/14/20 Page 16 of 41

INFORMAL RESOLUTIONS Detainees may utilize the informal resolution process concerning questions, disputes, or complaints prior to the submission of a formal grievance. If a detainee is not satisfied with the results of the informal resolution process, the detainee may file a formal grievance. Detainees may bypass or terminate the informal resolution process at any point and proceed directly to the formal grievance process. Filing
x The 14-5A Informal Resolution form must be utilized to initiate the informal resolution process. x All 14-5A’s related to medical care and treatment must be submitted to qualified health services
staff through facility mail, and/or designated grievance mailboxes. x With the exception of grievances related to medical care and treatment, Detainees are required to
submit 14-5A’s through facility mail or into the request box located in your unit. In the absence of unit management, the Warden/Administrator will designate a staff member to receive informal resolution forms. x The Detainee must submit the 14-5A within seven (7) calendar days of the alleged incident. x The time for filing begins from the date the problem or incident became known to the Detainee. x Unless unusual circumstances are present, the detainee will receive a response to an informal grievance within ten (10) calendar days of submission. In the event of unusual circumstances, the assigned staff member will provide the detainee with written documentation extending the response deadline. x In the event the Detainee is not satisfied with the response, the Detainee will have five (5) calendar days to submit a formal grievance to the Grievance Officer. In the event the Detainee/resident pursues a formal grievance, the Detainee will be required to attach a copy of the 14-5A to the formal grievance form.

EMERGENCY GRIEVANCES If the subject matter of the grievance is such that compliance with the regular time guidelines would subject the Detainee to risk of personal injury, the Detainee may request that the grievance be considered an emergency grievance. The emergency grievance must detail the basis for requiring an immediate response. When the grievance is of an emergency nature, utilization of the informal resolution process is not required. Filing
x The 14-5B Detainee Grievance form must be utilized to file an emergency grievance. The Detainee will complete Page 1 of the 14-5B and place it in a sealed envelope marked “Emergency Grievance”. Sealed envelopes may be placed in the grievance mail box or give it directly to the grievance officer. AFTER HOURS OR ON WEEKENDS THE SEALED EMERGENCY GRIEVANCE WILL BE GIVEN TO THE UNIT MANAGER OR SHIFT SUPERVISOR AND DELIVERED TO THE ADMINISTRATIVE DUTY OFFICER ASSIGNED.
Formal Grievance Procedure

Filing x x
x
x x x

The Detainee must file the grievance within five (5) calendar days of the response date listed on the 14-5A Informal Resolution form. In the event a detainee decides to bypass the informal grievance process, the detainee will have seven (7) calendar days from the date of the alleged incident to file a formal grievance. The time for filing begins from the date the problem or incident became known to the detainee. The 14-5B Detainee Grievance form must be utilized to file a formal grievance. The Detainee will complete Page 1 of the 14-5B and place into the grievance mailbox in your unit. If a grievance mail box is not used, the formal grievance will be forwarded to the Grievance Coordnator. Grievances related to medical care will be responded to within five (5) business days of submission. Unless a time extension has been granted, the Detainee will receive a response to the formal grievance within ten (10) calendar days of submission. The total time for the formal grievance process will be no more than TWENTY-SEVEN (27) days from filing to a final appeal decision, unless unusual circumstances are present.

Appeals Procedure Filing

32 CORECIVIC-MLG000010

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x If a Detainee is not satisfied with the decision of a formal or emergency grievance, the Detainee may complete the appeal section of the 14-5B and resubmit the grievance to the grievance Coordinator. The Detainee must file the appeal within five (5) calendar days of the response date listed on the 14-5B Detainee Grievance form. If you wish to review the 14-103 Detainee Grievance Procedures (USMS ONLY) policy, you may request to review it through the Law Library.
--------------------------------------------------------------------------------------------------------------------------------CoreCivic proporcionará un medio para que todos los detenidos aborden las quejas relacionadas con las condiciones, el tratamiento, las políticas y los procedimientos de la instalación. Muchos asuntos pueden y deben resolverse directa y rápidamente entre el detenido y el personal institucional.El proceso de reclamo incluirá una opción de resolución informal y un proceso de apelación. (FPBDS g.9.1) todas las quejas deben ser evaluadas de manera justa e imparcial. La resolución en el mejor interés del detenido y la instalación debe ser el objetivo principal.
El sistema de quejas no está destinado a ser utilizado para solicitudes. Utilice el sistema de kiosco o los formularios de solicitud para solicitudes de instalaciones.
Asuntos quebrantables Violación de las leyes, regulaciones o decisiones judiciales estatales y federales, incluidas, entre otras, violaciones de la Ley de Estadounidenses con Discapacidades (ADA), derechos constitucionales, etc.aplicación de reglas, políticas y / o procedimientos a detenidos sobre los cuales CoreCivic tiene control.-El personal individual y las acciones de los detenidos, incluida cualquier denegación de acceso a la resolución informal o procedimiento de queja.-Represalias contra detenidos por utilizar la resolución informal o los procesos de queja; y-Cualquier otro asunto relacionado con las condiciones de cuidado y supervisión dentro de la autoridad de CoreCivic.
Asuntos no quebrantables -Decisiones judiciales estatales y federales -Las leyes y reglamentos estatales y federales -NOSOTROS. Estándares, decisiones o asuntos del Servicio de Alguaciles (USMS); -Nota: los estándares, decisiones o asuntos de USMS serán objeto de reclamo de acuerdo con las reglamentaciones de USMS. -Acciones disciplinarias (todas las acciones disciplinarias deben abordarse de acuerdo con los procedimientos disciplinarios establecidos en la instalación); -Problemas de propiedad (todos los problemas de propiedad deben abordarse de acuerdo con los procedimientos de propiedad establecidos en la instalación); -Estado de clasificación (todo el estado de clasificación debe abordarse de acuerdo con los procedimientos de clasificación establecidos en la instalación); y - Incidentes PREA (Ley de eliminación de violación en prisión) permitidos. Si se presenta y recibe un informe como un reclamo de un detenido, se lo remitirá inmediatamente al investigador de la instalación o al Oficial de Servicio Administrativo (ADO) y se procesará de acuerdo con la política de CoreCivic 14-2 Abuso sexual y prevención y respuesta (USMS).
RESOLUCIONES INFORMALES Los detenidos pueden utilizar el proceso de resolución informal con respecto a preguntas, disputas o quejas antes de la presentación de una queja formal. Si un detenido no está satisfecho con los resultados del proceso de resolución informal, el detenido puede presentar una queja formal. Los detenidos pueden omitir o finalizar el proceso de resolución informal en cualquier momento y proceder directamente al proceso formal de queja. Presentación • El formulario de resolución informal 14-5A debe utilizarse para iniciar el proceso de resolución informal. • Todos los 14-5A relacionados con la atención y el tratamiento médicos deben enviarse al personal calificado de servicios de salud a través del correo del centro y / o buzones de reclamos designados. • Con la excepción de las quejas relacionadas con la atención y el tratamiento médicos, los detenidos deben enviar 14-5A a través del correo del centro o en el cuadro de solicitud ubicado en su unidad. En ausencia de la administración de la unidad, el Guardián / Administrador designará a un miembro del personal para recibir formularios informales de resolución. • El Detenido debe presentar el 14-5A dentro de los siete (7) días calendario posteriores al supuesto incidente.
33
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• El momento de la presentación comienza a partir de la fecha en que el detenido conoció el problema o incidente. • A menos que existan circunstancias inusuales, el detenido recibirá una respuesta a una queja informal dentro de los diez (10) días calendario posteriores a la presentación. En caso de circunstancias inusuales, el miembro del personal asignado le proporcionará al detenido documentación escrita que amplíe el plazo de respuesta. • En caso de que el Detenido no esté satisfecho con la respuesta, el Detenido tendrá cinco (5) días calendario para presentar una queja formal ante el Oficial de Quejas. En el caso de que el Detenido / residente presente una queja formal, se requerirá que el Detenido adjunte una copia de la 14-5A al formulario de queja formal. QUEJAS DE EMERGENCIA Si el tema de la queja es tal que el cumplimiento de las pautas de tiempo regular expondría al Detenido al riesgo de lesiones personales, el Detenido puede solicitar que la queja se considere una queja de emergencia. La queja de emergencia debe detallar las bases para requerir una respuesta inmediata. Cuando la queja es de naturaleza de emergencia, no se requiere la utilización del proceso de resolución informal. Presentación • El formulario de queja formal para detenidos 14-5B se debe utilizar para presentar una queja formal de emergencia. El Detenido completará la Página 1 del 14-5B y lo colocará en un sobre sellado marcado como "Queja de emergencia". Los sobres sellados se pueden colocar en el buzón de quejas o entregarlos directamente al oficial de quejas. DESPUÉS DE HORAS O EN FINES DE SEMANA, LA QUEJA DE EMERGENCIA SELLADA SE ENTREGARÁ AL GERENTE DE LA UNIDAD O AL SUPERVISOR DE TURNO Y SE ENTREGARÁ AL OFICIAL DE SERVICIO ADMINISTRATIVO ASIGNADO.
Procedimiento de queja formal Presentación • El Detenido debe presentar la queja dentro de los cinco (5) días calendario posteriores a la fecha de respuesta que figura en el formulario de Resolución informal 14-5A. • En caso de que un detenido decida omitir el proceso informal de queja, el detenido tendrá siete (7) días calendario a partir de la fecha del supuesto incidente para presentar una queja formal. El momento de la presentación comienza a partir de la fecha en que el detenido conoció el problema o incidente. • El formulario de queja formal para detenidos 14-5B debe utilizarse para presentar una queja formal. El Detenido completará la Página 1 del 14-5B y lo colocará en el buzón de reclamos de su unidad. Si no se utiliza un buzón de reclamos, el reclamo formal se enviará al Coordinador de reclamos. • Las quejas relacionadas con la atención médica se responderán dentro de los cinco (5) días hábiles posteriores a la presentación. • A menos que se haya otorgado una extensión de tiempo, el Detenido recibirá una respuesta a la queja formal dentro de los diez (10) días calendario posteriores a la presentación. • El tiempo total para el proceso formal de queja no será más de VEINTE SIETE (27) días desde la presentación de una decisión de apelación final, a menos que existan circunstancias inusuales. Procedimiento de apelaciones Presentación • Si un Detenido no está satisfecho con la decisión de una queja formal o de emergencia, el Detenido puede completar la sección de apelaciones de la 14-5B y volver a presentar la queja al Coordinador de quejas. El Detenido debe presentar la apelación dentro de los cinco (5) días calendario posteriores a la fecha de respuesta que figura en el formulario 14-5B de Quejas de Detenido.
Si desea revisar la política de Procedimientos de quejas de detenidos 14-103 (SOLO USMS), puede solicitar revisarla a través de la Biblioteca de Derecho.
Access to Programs/Accesso a Programas
The facility’s commitment to equality of access to programs and services without regard to race, gender or national origin are:
-practice religion, subject only to the limitation necessary to maintain facility order and security -to unlimited access to the courts and to address uncensored communication to governmental authorities without being subject to reprisals or penalties as a consequence -access to attorneys and their authorized representatives -access to legal materials to provide assistance to help them with criminal, civil and administrative legal matters
34
CORECIVIC-MLG000012

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ATTACHMENT 2 Declaration of A. Partain

Case 2:20-cv-00901-DJH--DMF Document 16-8 Filed 05/14/20 Page 20 of 41 CORECIVIC-MLG000013

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ATTACHMENT 3 Declaration of A. Partain

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ATTACHMENT 4 Declaration of K. A. Partain

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ATTACHMENT 5
Declaration of A. Partain

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ATTACHMENT 6
Declaration of A. Partain

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ATTACHMENT 7
Declaration of A. Partain

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 Case 2:20-cv-00901-DJH--DMF Document 29 Filed 06/02/20 Page 1 of 19

1

ASH

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Maria Guadalupe Lucero-Gonzalez, et

No. CV-20-00901-PHX-DJH (DMF)

10 al.,

ORDER

11

Plaintiffs,

12 v.

13 Kris Kline, et al.,
14 Defendants.
15

16

Plaintiffs Maria Guadalupe Lucero-Gonzalez, Claudia Romero-Lorenzo, Tracy Ann

17 Peuplie, James Tyler Ciecierski, and Marvin Lee Enos, who are confined in CoreCivic’s

18 Central Arizona Florence Correctional Complex (CAFCC), have filed, through counsel on

19 behalf of themselves and all others similarly situated, a civil rights Complaint pursuant to

20 28 U.S.C. §§ 1331, 1346, 2201-02, and 2241 (Doc. 1). Before the Court is Plaintiffs’

21 Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 2), which is

22 fully briefed, and the Court has taken oral argument from the parties on the Motion.

23 I. Injunctive Relief Standard

24

“A preliminary injunction is ‘an extraordinary and drastic remedy, one that should

25 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’”

26 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520

27 U.S. 968, 972 (1997) (per curiam)); see also Winter v. Natural Res. Def. Council, Inc., 555

28 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy

Case 2:20-cv-00901-DJH--DMF Document 29 Filed 06/02/20 Page 2 of 19

1 never awarded as of right”). A plaintiff seeking a preliminary injunction must show that

2 (1) s/he is likely to succeed on the merits, (2) is likely to suffer irreparable harm without

3 an injunction, (3) the balance of equities tips in his or her favor, and (4) an injunction is in

4 the public interest. Winter, 555 U.S. at 20. “But if a plaintiff can only show that there are

5 ‘serious questions going to the merits’—a lesser showing than likelihood of success on the

6 merits—then a preliminary injunction may still issue if the ‘balance of hardships tips

7 sharply in the plaintiff’s favor,’ and the other two Winter factors are satisfied.” Shell

8 Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance

9 for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under this serious

10 questions variant of the Winter test, “[t]he elements . . . must be balanced, so that a stronger

11 showing of one element may offset a weaker showing of another.” Lopez, 680 F.3d at

12 1072.

13

Regardless of which standard applies, the movant “has the burden of proof on each

14 element of the test.” See Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016,

15 1027 (E.D. Cal. 2000). Further, there is a heightened burden where a plaintiff seeks a

16 mandatory preliminary injunction, which should not be granted “unless the facts and law

17 clearly favor the plaintiff.” Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1441 (9th

18 Cir. 1986) (citation omitted).

19

The Prison Litigation Reform Act imposes additional requirements on prisoner

20 litigants who seek preliminary injunctive relief against prison officials and requires that

21 any injunctive relief be narrowly drawn and the least intrusive means necessary to correct

22 the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 987,

23 999 (9th Cir. 2000).

24 II. Motion for Injunctive Relief

25

Put broadly, Plaintiffs allege in their Complaint that Defendants have violated their

26 Fifth or Eighth Amendment rights by placing them at unconstitutional risk from exposure

27 to COVID-19. In their Motion, Plaintiffs seek the appointment of a Rule 706 expert1 to

28 1 Rule 706 of the Federal Rules of Evidence provides for court-appointed expert

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Case 2:20-cv-00901-DJH--DMF Document 29 Filed 06/02/20 Page 3 of 19

1 inspect CAFCC’s facility in order “to determine whether Defendants have implemented

2 consistent social (or physical) distancing, novel coronavirus testing procedures, and

3 hygienic practices sufficient to reasonably protect Plaintiffs and Class Members from

4 contracting COVID-19 while in Defendants’ custody.” (Doc. 2-1 at 1-2). If the expert

5 determines that Plaintiffs are at unreasonable risk from contracting COVID-19, then the

6 expert shall submit “recommendations as to how such practices should be achieved and

7 within what approximate timeline.” (Id. at 2). Thereafter, Defendants would be required

8 to “begin implementing the expert’s recommendations immediately,” “provide weekly

9 updates to Plaintiffs’ counsel and this Court on their progress,” and, absent good cause,

10 “complete the implementation of the recommendations within the timeline established by

11 the expert.” (Id.).

12 IV. Discussion

13

A. COVID-19

14

COVID-19, a disease caused by a novel strain of coronavirus (SARS-CoV-2), was

15 declared by the World Health Organization as a global pandemic on March 11, 2020. As

16 of June 1, 2020, 1,817,785 individuals have been confirmed as positive for COVID-19 in

17 the United States, of which 105,644 have died.2 In Arizona, 21,264 cases have been

18 identified, of which 943 have died.3

19

The United States Department of Health and Human Services Centers for Disease

20 Control and Prevention (“CDC”) reports that individuals who contract and transmit

21 COVID-19 experience symptoms that range from negligible, with some individuals

22 remaining entirely asymptomatic, to mild, such as fever, coughing, and difficulty

23 breathing, to severe, including acute respiratory distress, severe pneumonia, septic shock,

24

25

26

witnesses. Under that Rule “[t]he Court may appoint any expert that the parties agree on and any of its own choosing,” “[b]ut the Court may only appoint someone who consents to

27

act.” Fed.R.Evid. 706(a). 2 Coronavirus Resource Center: COVID-19 Dashboard, Johns Hopkins Univ. &

28 Med., https://coronavirus.jhu.edu/map.html (last accessed June 2, 2020).

3 Id.

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Case 2:20-cv-00901-DJH--DMF Document 29 Filed 06/02/20 Page 4 of 19

1 and multi-organ failure, or even death.4 The CDC estimates that serious illness or death

2 occurs in 16% of all cases.5 Those at high-risk of suffering severe illness or death from

3 COVID-19 include individuals who are 65 years and older, or individuals of any age with

4 underlying medical conditions including chronic lung disease, moderate to severe asthma,

5 a serious heart condition, a weakened immune system, severe obesity, diabetes, chronic

6 kidney disease, or liver disease.6

7

The virus that causes COVID-19 “is thought to spread mainly through close contact

8 from person-to-person in respiratory droplets from someone who is infected.”7 The

9 incubation period for COVID-19 extends 14 days on average, with a median time of 4-5

10 days from exposure to symptoms onset.8 The CDC recommends that to avoid exposure

11 and transmission, the public should maintain a physical distance of at least six feet from

12 others, wear cloth face covers, frequently wash hands or use hand sanitizer, and disinfect

13 frequently touched surfaces.9 High-risk individuals should take additional “special

14 precautions,” such as continue active treatment of their underlying medical conditions,

15 obtain vaccinations against other diseases like influenza and pneumococcal illness, stay

16 home, and remain away from others “as much as possible.”10

17

B. Detention Facility COVID-19 Guidance

18

On March 23, 2020, the CDC issued an “Interim Guidance on Management of

19

20

4 CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clini

21 cal-guidance-management-patients.html (last accessed June 1, 2020). 5 CDC Situation Summary, https://www.cdc.gov/coronavirus/2019-ncov/summary.

22 html (last accessed June 1, 2020).

23

6 CDC People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/cor onavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last accessed June

24 1, 2020).

7 CDC How COVID-19 Spreads, https://www.cdc.gov/coronavirus/2019-ncov/pre

25 vent-getting-sick/how-covid-spreads.html (last accessed June 1, 2020).

26

8 See n.3, supra.

9 CDC How to Protect Yourself & Others, https://www.cdc.gov/coronavirus/2019-

27 ncov/prevent-getting-sick/prevention.html (last accessed June 1, 2020).

28

10 CDC Groups at Higher Risk for Severe Illness, https://www.cdc.gov/coronaviru s/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (last accessed June 1,

2020).

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Case 2:20-cv-00901-DJH--DMF Document 29 Filed 06/02/20 Page 5 of 19

1 Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities” (“CDC

2 Guidance”)11 which “provides interim guidance specific for correctional facilities and

3 detention centers during the outbreak of COVID-19, to ensure continuation of essential

4 public services and protection of the health and safety of incarcerated and detained persons,

5 staff, and visitors.” (CDC Guidance at 2.) The guidance reports there is a heightened risk

6 of transmission of COVID-19 to and among individuals within detention facilities due to,

7 among other things, the number of sources which can introduce them into a facility’s

8 population, including detention staff, visitors, contractors, vendors, legal representatives,

9 court staff, and new detainees; the congregate environment in which detainees “live, work,

10 eat, study, and recreate”; and limited medical isolation options, hygiene supplies, and

11 dissemination of accurate information among detainees. (CDC Guidance at 2.)12 For those

12 reasons, the guidance recommends that detention facilities implement specific measures to

13 prepare for potential transmission of COVID-19, to prevent the spread of COVID-19, and

14 to manage confirmed and suspected COVID-19 cases to prevent further transmission and

15 provide treatment.

16

The guidance states that “[a]lthough social distancing is challenging to practice in

17 correctional and detention environments, it is a cornerstone of reducing transmission of

18 respiratory diseases such as COVID-19.” (CDC Guidance at 4.) It recommends

19 implementing social distancing strategies to increase the physical space between detained

20 persons “(ideally 6 feet between all individuals, regardless of the presence of symptoms),”

21 such as increasing space between individuals in cells, increasing space between individuals

22 in lines and waiting areas; choosing recreation spaces where individuals can spread out and

23 staggering time in those spaces; staggering meals and rearrange seating in the dining hall

24

25

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

19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019-

26 ncov/community/correction-detention/guidance-correctional-detention.html (last accessed

June 1, 2020).

27

12 “People in correctional and detention facilities are at greater risk for some

28

illnesses, such as COVID-19.” CDC FAQs for Correctional and Detention Facilities, http s://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/faq.html#Peopl

e (last accessed June 1, 2020).

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Case 2:20-cv-00901-DJH--DMF Document 29 Filed 06/02/20 Page 6 of 19

1 so that there is more space between individuals; providing meals inside housing units or

2 cells; limiting the size of group activities and increasing space between individuals during

3 group activities. (Id. at 4, 11.) It further recommends that facilities should house

4 quarantined individuals who have had close contact with a COVID-19 case, or individuals

5 in medical isolation who are suspected or confirmed positive with COVID-19, in order of

6 preference, separately in single cells or as a cohort, although “[c]ohorting should only be

7 practiced if there are no other available options.” (Id. at 15-20.)13 “If cohorting is

8 unavoidable, [facilities should] make all possible accommodations to reduce exposure risk

9 for the higher-risk individuals.” (Id. at 19.)

10

CDC Guidance also recommends that facilities implement intensified cleaning and

11 disinfecting procedures and provide education on, and reinforcement of, hygiene practices.

12 (CDC Guidance at 9-10.) Facilities should, among other things, provide adequate supplies

13 to support intensified cleaning and disinfection practices, and “continually restock hygiene

14 supplies throughout the facility.” Facilities should provide detainees and staff no-cost

15 access to soap, running water, hand drying machines or disposable paper towels, tissues,

16 no-touch trash receptacles, and alcohol-based hand sanitizer with at least 60% alcohol

17 where security restrictions allow. (Id.) The guidance underscores that because the virus

18 can be transmitted from contagious, yet asymptomatic individuals who are present within

19 the facilities, “[b]oth good hygiene practices and social distancing are critical in preventing

20 further transmission.” (Id. at 8.)

21

Notably, the CDC does not specify when testing for COVID-19 shall occur, stating

22 only that “Clinicians should use their judgment to determine if a patient has signs and

23 symptoms compatible with COVID-19 and whether the patient should be tested.”14

24 However, the CDC does note that “[r]esidents in long-term care facilities or other

25

26

13 “Cohorting refers to the practice of isolating multiple laboratory-confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case

27 together as a group.” (CDC Guidance at 3.)

28

14CDC Evaluating and Testing Persons for Coronavirus Disease 2019 (COVID19), https://www.cdc.gov/coronavirus/2019-nCoV/hcp/clinical-criteria.html (last accessed

June 1, 2020).

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Case 2:20-cv-00901-DJH--DMF Document 29 Filed 06/02/20 Page 7 of 19

1 congregate living settings, including prisons and shelters, with symptoms” are a “high

2 priority” for testing.15

3

C. CAFCC

4

CAFCC has a total design capacity of 5,003 detainees. (Kline Decl. ¶¶ 9-11). As

5 of May 13, 2020, CAFCC had a total of 3,090 detainees. (Id. ¶ 13).16 As of May 13, 2020,

6 15 detainees have tested positive for COVID-19; 13 of those cases were identified during

7 intake, one was identified at another facility before transfer to CAFCC, and one was

8 identified in general population. (Id. ¶¶ 16-17, 62). At oral argument, the parties

9 represented that this number has subsequently increased; as of the date of the hearing (May

10 22, 2020), 26 detainees have tested positive (including the 15 previously identified), of

11 which three have been identified in general population (including the one previously

12 identified).17 Defendants’ avowed at oral argument that no detainees have been

13 hospitalized, and none have died.

14

On March 19, 2020, CAFCC began cohorting new arrivals and detainees returning

15 from outside transports. (Id. ¶¶ 33-40; Ivers Decl. ¶ 20). While cohorted, detainees are

16 only allowed out of their cells with other members of their cohort, and the dayroom and

17 common areas are sanitized between groups. (Kline Decl. ¶ 39). Detainees — whether in

18 a cohort or general population — who display symptoms of COVID-19 are quarantined in

19

20

15 Id. (emphasis in original).

21

16 Per the parties’ representations at oral argument, that number has decreased in the interim.

22

17 Defendants assert that these positive cases reflect that “less than 0.5% of the total

23

detainee population have tested positive for COVID-19,” and that “this low infection rate is due to CAFCC’s prompt and coordinated efforts to comply” with CDC guidance. (Doc.

24

16 at 17-18). This statement is misleading, and conflates two distinct statistics. While only 26 detainees have tested positive, testing has not been widespread. At oral argument,

25

Defendants conceded that only 45 total tests COVID-19 tests have been conducted on detainees at CAFCC. As such, the total number of positive tests does not, as Defendants’

26

style it, reflect a “low infection rate.” Rather, the infection rate at CAFCC is nearly 58% (26 positive cases out of 45 total tests, or 57.8%), significantly above Arizona’s statewide

27

average of 9.3%. See Coronavirus Resource Center: COVID-19 Dashboard, Johns Hopkins Univ. & Med.,

28

https://coronavirus.jhu.edu/map.html (last accessed June 2, 2020) (reflecting that, as of June 2, 2020, Arizona has conducted 228,070 COVID-19 tests, and has identified 21,264

positive cases).

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Case 2:20-cv-00901-DJH--DMF Document 29 Filed 06/02/20 Page 8 of 19

1 J-Pod, evaluated, and tested if necessary; the pod from which the detainee came is placed

2 on quarantine status for 14 days. (Id. ¶ 41). Quarantined detainees remain in J-Pod until

3 they are symptom free for 72 hours, at which point they are cohorted for 14 days before

4 release in general population. (Id. ¶¶ 43-44).

5

Staff entering a cohort or quarantined area are required to wear a full suit/coveralls,

6 rubber boots, gloves, N-95 mask, and goggles/face shield. (Id. ¶ 47). Upon exiting, staff

7 are decontaminated in a dedicated decontamination zone where their protective equipment

8 is decontaminated or disposed of as appropriate. (Id. ¶¶ 48-49).

9

Beginning on March 12, 2020, CAFCC suspended social visitation and volunteer

10 entry. (Id. ¶ 63).18 All persons entering the facility are subjected to screening, which

11 consists of a series of questions and a temperature check, and are required to wear a mask.

12 (Id. ¶¶ 69-75, 77). Detainees are required to wear masks whenever they are outside their

13 pod, and are encouraged to wear masks within the pods, although CAFCC does not enforce

14 noncompliance within the pods for reasons of safety, security, and operational concerns.

15 (Id. ¶ 78-80, 90-91). Detainees were originally provided with one paper-style mask each

16 on April 13, 2020 (id. ¶ 87-89), and were provided with cloth masks on May 21, 2020

17 (Doc. 23-1 at 4).

18

CAFCC has posted materials throughout the facility regarding COVID-19

19 symptoms, hand washing, sanitation and cleanliness, mask use, and steps to reduce the risk

20 of exposure. (Kline Decl. ¶ 94). Staff also conduct “town hall” meetings to discuss topics

21 such as face masks, social distancing strategies, and updating detainees on the number of

22 infected persons in the facility. (Id. ¶ 95-96).

23

Each pod in CAFCC has a dayroom shared by the detainees. The dayrooms are

24 large and have space for the detainees to practice social distancing while in the dayrooms.

25 (Id. ¶ 100-101). Detainees are encouraged to practice social distancing while in the

26 dayrooms, but CAFCC does not enforce violations for reasons of safety, security, and

27

28

18 Legal visitations have not been suspended, but non-contact legal visits using videoconferencing technology is encouraged. (Kline Decl. ¶¶ 64, 66). When contact legal

visits are unavoidable, the visitation area is sanitized before and after the visit. (Id. ¶ 65).

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Case 2:20-cv-00901-DJH--DMF Document 29 Filed 06/02/20 Page 9 of 19

1 operational concern. (Id. ¶ 104). Programming within CAFCC has not been eliminated,

2 but programs are now limited to groups of no more than 10 detainees in order to allow for

3 social distancing. (Id. ¶ 102). CAFCC has also begun delivering meals to detainees in

4 their detention unit rather than having detainees take their meals in a dining hall. (Id. ¶

5 103). Detainees are reminded to practice social distancing while waiting in line to receive

6 their meals. (Id. ¶ 103). Once a detainee receives their meal, they are allowed to eat it

7 anywhere they wish within the pod. (Id.).

8

Detainees are provided with two bars of soap and one bottle of shampoo each week,

9 and are provided with additional supplies if they run out before weekly distribution. (Id. ¶

10 109). CAFCC uses EPA-approved disinfectants to clean common areas. (Id. ¶¶ 106-107).

11 CAFCC has been divided into several zones, with a staff supervisor assigned to each zone

12 to verify that all hard-surface, high-touch areas are cleaned and disinfected multiple times

13 per day. (Id. ¶ 115). Detainee cleaning porters are provided with masks and gloves in

14 order to clean these common areas. (Id.). High-touch employee-only areas — such as

15 timecards — are also cleaned multiple times per day (Id. ¶¶ 117-121). When cleaning an

16 area where a confirmed COVID-19 detainee was housed, staff wear full-body personal

17 protective equipment, treat any trash coming out of the area as medical waste, and follow

18 strict environmental cleaning and disinfection recommendations. (Id. ¶¶ 122-123).

19 Transport vehicles are also cleaned and disinfected before and after each use. (Id. ¶ 124).

20

Detainees housed in administrative or disciplinary segregation are housed

21 individually as much as possible, remain in their cells for 23 hours each day, receive their

22 meals in-cell, and typically recreate alone in single-occupancy enclosures. (Id. ¶¶ 125-

23 128). As with detainees in general population, segregated inmates have been provided with

24 masks and educated on proper hygiene and sanitation. (Id. ¶¶ 130-131). Staff check on

25 detainees in segregated housing every 30 minutes, medical staff make rounds twice per

26 day, and mental health staff make rounds once per day. (Id. ¶ 129). Segregated housing

27 pods are cleaned in the same manner as general population pods, and segregated housing

28 inmates are provided with the same personal hygiene supplies. (Id. ¶ 131).

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Case 2:20-cv-00901-DJH--DMF Document 29 Filed 06/02/20 Page 10 of 19

1

D. Plaintiffs

2

Plaintiffs each suffer from one or more conditions that place them at higher risk

3 from adverse effects of COVID-19.19 Plaintiff Lucero-Gonzalez suffers from asthma,

4 hypertension, diabetes, and kidney cancer. (Doc. 2 at 5); Plaintiff Romero-Lorenzo suffers

5 from leukemia (id.); Plaintiff Peuplie suffers from asthma, hypertension, anxiety,

6 substance-abuse disorder, and spinal stenosis (id.); Plaintiff Ciecierski suffers from severe

7 asthma (id.); and Plaintiff Enos suffers from asthma and hypertension (id.).

8

Plaintiffs report that the pods at CAFCC contain either 40 or 80 detainees. (Doc. 2

9 at 7) (citations to specific exhibits omitted). In each pod, detainees share between four and

10 six showers, and three or four telephones. (Id.). Plaintiffs are celled with as few as one,

11 and as many as thirteen, other detainees. (Id.). In cells with one other person, beds are

12 placed against the walls one or two feet apart. (Id.). In cells with multiple people, bunk

13 beds are placed against the same wall one or two feet apart. (Id.). Everyone in a cell shares

14 a single toilet and sink. (Id.). Plaintiff Enos — who is in segregated housing — shares a

15 cell with two other detainees. (Id.) Given the size of the cell, Plaintiff Enos is as close as

16 two feet to the other detainees for up to 23 hours each day, and does not have daily access

17 to a shower. (Id.).

18

Plaintiffs state that detainees frequently stand close together while waiting for

19 meals, medical appointments, or to use the telephones. (Id. at 8). The telephones are

20 spaced less than six feet apart, requiring people to stand within two or three feet of each

21 other when using the phone. (Id.). Detainees working in jobs are required to be in close

22 proximity with as many as 17 other detainees. (Id.).

23

Plaintiff’s further assert that they did not receive any sort of mask until mid-April,

24 that some detainees did not receive masks at all, and that the masks were thin, paper-masks

25 rather than the N95 masks recommended by the CDC. (Id.). Further, even after receiving

26 masks, Plaintiffs report that many detainees do not wear them, and that Defendants have

27

28

19 The Court notes that Plaintiff do not seek relief based on their alleged heightened risk to COVID-19, but instead seek to represent subclasses of detainees based on their

status as pre-trial detainees or post-conviction prisoners.

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Case 2:20-cv-00901-DJH--DMF Document 29 Filed 06/02/20 Page 11 of 19

1 not required people to wear them. (Id.). Plaintiff also report that many guards do not wear

2 masks, and that even though (as of April 30, 2020) detainees have been required to wear

3 masks when out of their pod, they are not required to wear masks when in their pod or

4 cells, and that few detainees do so. (Id.). Plaintiffs also report that when their masks have

5 broken or been lost, Defendants have required them to swap and share masks in order to

6 leave the pods for things like laundry or legal calls. (Id. at 8-9).

7

Additionally, Plaintiffs report that they receive only a small amount of soap and

8 shampoo each week, and that it often does not last the entire week, especially because

9 detainees are forced to use these supplies to clean items such as plates and cups, as well as

10 their cells. (Id. at 9). Plaintiff’s assert that if they are unable to purchase additional soap

11 at the commissary, they “have no soap at all.” (Id.).

12

Plaintiffs also report that their cells and pods are not adequately and consistently

13 cleaned. (Id.). Detainees are responsible for cleaning their own pods and cells, but are not

14 given PPE such as a mask or gloves to do so. (Id.). Detainees also only receive a small

15 amount of cleaning solution, “none of which is antibacterial.”20 (Id.). Often, this cleaning

16 solution runs out before all of the pod or cells are cleaned, and that detainees sometime

17 resort to cleaning with water only. (Id.). Plaintiffs also report that frequently touched

18 surfaces — such as the communal telephones — are not cleaned between uses, or even

19 every day, and that some detainees have taken to wiping them down with their shirts or

20 dampened menstrual pads. (Id.).

21

Plaintiffs also report that they have been exposed to other detainees exhibiting

22 symptoms of COVID-19. (Id.). Some of these people were quarantined and then returned

23 to the pods without being tested for COVID-19 even though their symptoms continued.

24 (Id. at 10). Plaintiffs further assert that Defendants have failed to investigate the spread of

25 COVID-19 within the facility, and that only “a handful” of people have been tested for

26 COVID-19 or checked for COVID-19 symptoms. (Id.). Plaintiffs further report that even

27

28

20 The Court notes that an antibacterial solution would have no effect on viruses

such as COVID-19, though it would help to prevent other forms of infection.

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Case 2:20-cv-00901-DJH--DMF Document 29 Filed 06/02/20 Page 12 of 19

1 detainees exhibiting symptoms and requesting medical attention have not been tested for

2 COVID-19. (Id.).

3

Plaintiffs also assert that Defendants have failed to provide them with information

4 about COVID-19, measures for preventing its spread, or the risks of contracting COVID-

5 19. (Id.). Defendants have not informed Plaintiffs of the number of people who have

6 tested positive for COVID-19. (Id.).

7

Finally, Plaintiffs assert that Defendants have not taken steps to mitigate the risks

8 of spread of COVID-19 by “pre-symptomatic” or asymptomatic carriers. (Id. at 10-11).

9

E. Plaintiff Lucero-Gonzalez

10

Plaintiff Lucero-Gonzalez is currently being held at CAFCC pursuant to a

11 supervised release violation stemming from her underlying conviction for illegal reentry.

12 (Doc. 2 at 4). Accordingly, Plaintiff Lucero-Gonzalez seeks to represent herself and a

13 putative class of “post-conviction” detainees at CAFCC protected under the Eighth

14 Amendment.

15

To state an Eighth Amendment conditions-of-confinement claim, plaintiffs must

16 meet a two-part test. “First, the alleged constitutional deprivation must be, objectively,

17 sufficiently serious” such that the “official’s act or omission must result in the denial of the

18 minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834

19 (1994) (internal quotations omitted). Second, the prison official must have a “sufficiently

20 culpable state of mind,” i.e., he must act with “deliberate indifference to inmate health or

21 safety.” Id. (internal quotations omitted). Deliberate indifference is a higher standard than

22 negligence or lack of ordinary due care for the prisoner’s safety. Id. at 835. In defining

23 “deliberate indifference” in this context, the Supreme Court has imposed a subjective test:

24 “the official must both be aware of facts from which the inference could be drawn that a

25 substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837

26 (emphasis added).

27

Similarly, not every claim by a prisoner relating to inadequate medical treatment

28 states a violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff

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Case 2:20-cv-00901-DJH--DMF Document 29 Filed 06/02/20 Page 13 of 19

1 must show (1) a “serious medical need” by demonstrating that failure to treat the condition

2 could result in further significant injury or the unnecessary and wanton infliction of pain

3 and (2) the defendant’s response was deliberately indifferent. Jett v. Penner, 439 F.3d

4 1091, 1096 (9th Cir. 2006).

5

“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d

6 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both

7 know of and disregard an excessive risk to inmate health; “the official must both be aware

8 of facts from which the inference could be drawn that a substantial risk of serious harm

9 exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).

10 Deliberate indifference in the medical context may be shown by a purposeful act or failure

11 to respond to a prisoner’s pain or possible medical need and harm caused by the

12 indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a

13 prison official intentionally denies, delays, or interferes with medical treatment or by the

14 way prison doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S.

15 97, 104-05 (1976); Jett, 439 F.3d at 1096.

16

Deliberate indifference is a higher standard than negligence or lack of ordinary due

17 care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross

18 negligence will constitute deliberate indifference.” Clement v. Cal. Dep’t of Corr., 220 F.

19 Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458,

20 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice”

21 do not support a claim under § 1983). “A difference of opinion does not amount to

22 deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d

23 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to

24 state a claim against prison officials for deliberate indifference. See Shapley v. Nev. Bd. of

25 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be

26 substantial. The action must rise to a level of “unnecessary and wanton infliction of pain.”

27 Estelle, 429 U.S. at 105.

28

Further, because all of the Defendants are named in their official capacities only,

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Case 2:20-cv-00901-DJH--DMF Document 29 Filed 06/02/20 Page 14 of 19

1 Plaintiff Lucero-Gonzalez must demonstrate that her injuries were caused by a policy,

2 practice, or custom of the Defendants’ agencies. Monell v. Department of Social Services,

3 436 U.S. 658, 694 (1978); Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).

4

There are three ways to meet the policy, practice, or custom

requirement for municipal liability under § 1983: (1) the

5

plaintiff may prove that a public entity employee committed

the alleged constitutional violation pursuant to a formal policy

6

or a longstanding practice or custom, which constitutes the

standard operating procedure of the local government entity;

7

(2) the plaintiff may establish that the individual who

committed the constitutional tort was an official with “final

8

policy-making authority” and that the challenged action itself

thus constituted an act of official government policy; or (3) the

9

plaintiff may prove that an official with final policy-making

authority ratified a subordinate=s unconstitutional decision or

10

action . . . . An unconstitutional policy need not be formal or

written to create municipal liability under § 1983; however, it

11

must be so permanent and well settled as to constitute a custom

or usage with the force of law. Adickes v. S.H. Kress & Co.,

12

398 U.S. 144, 167-68, . . . (1970). Furthermore, “[p]roof of a

single incident of unconstitutional activity is not sufficient to

13

impose liability under Monell, unless proof of the incident

includes proof that it was caused by an existing,

14

unconstitutional municipal policy, which policy can be

attributed to a municipal policy maker.” Oklahoma City v.

15

Tuttle, 471 U.S. 808, 823-24, . . . (1985).

16 Avalos v. Baca, 596 F.3d 583, 587-88 (9th Cir. Feb. 24, 2010) (quoting Avalos v. Baca,

17 517 F. Supp 2d 1156, 1162 (C.D. Cal. 2007).

18

Here, the Court concludes that Plaintiff Lucero-Gonzalez has failed to demonstrate

19 that the Defendants have violated her Eighth Amendment rights. Specifically, Plaintiff has

20 not demonstrated that Defendants, through any policy, practice, or custom they have

21 implemented, have been subjectively deliberately indifferent to her health or safety. There

22 is no dispute between the parties that Defendants have enacted various policies in response

23 to the risks posed by COVID-19. Nor have Plaintiffs presented evidence to support that

24 these policies are, subjectively, deliberately indifferent to the real risks posed by COVID-

25 19. Rather, the main dispute between the parties is whether these policies are, objectively,

26 sufficient. However, as noted, Plaintiff Lucero-Gonzalez and those situated similarly to

27 her, must demonstrate that Defendants’ policies are both objectively insufficient and

28 subjectively deliberately indifferent to her health and safety. The very fact that Defendants

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Case 2:20-cv-00901-DJH--DMF Document 29 Filed 06/02/20 Page 15 of 19

1 have enacted such policies supports that they have not been subjectively indifferent to the

2 risks posed by COVID-19 to Plaintiffs like Ms. Lucero-Gonzalez. Accordingly, the Court

3 concludes that, on the record before it at this time, Plaintiff Lucero-Gonzalez has not

4 demonstrated that she is likely to succeed on the merits of her Eighth Amendment claim,

5 and is therefore not entitled to preliminary injunctive relief.

6

F. Plaintiffs Romero-Lorenzo, Peuplie, Ciecierski, and Enos

7

Plaintiffs Romero-Lorenzo, Peuplie, Ciecierski, and Enos assert that they are pre-

8 trial detainees. (Doc. 2 at 4). As such, unlike Plaintiff Lucero-Gonzalez, their protections

9 arise from the Fourteenth Amendment rather than the Eighth Amendment. A pretrial

10 detainee has a right under the Due Process Clause of the Fourteenth Amendment to be free

11 from punishment prior to an adjudication of guilt. Bell v. Wolfish, 441 U.S. 520, 535

12 (1979). “Pretrial detainees are entitled to ‘adequate food, clothing, shelter, sanitation,

13 medical care, and personal safety.’” Alvarez-Machain v. United States, 107 F.3d 696, 701

14 (9th Cir. 1996) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)). To state

15 a claim of unconstitutional conditions of confinement against an individual defendant, a

16 pretrial detainee must allege facts that show:

17

(i) the defendant made an intentional decision with respect to

18

the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of

19

suffering serious harm; (iii) the defendant did not take

reasonable available measures to abate that risk, even though a

20

reasonable official in the circumstances would have

21

appreciated the high degree of risk involved—making the

consequences of the defendant’s conduct obvious; and (iv) by

22

not taking such measures, the defendant caused the plaintiff’s

23

injuries.

24 Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018).

25

Whether the conditions and conduct rise to the level of a constitutional violation is

26 an objective assessment that turns on the facts and circumstances of each particular case.

27 Id.; Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). However, “a de minimis

28 level of imposition” is insufficient. Bell, 441 U.S. at 539 n.21. In addition, the “‘mere lack

- 15 -

Case 2:20-cv-00901-DJH--DMF Document 29 Filed 06/02/20 Page 16 of 19

1 of due care by a state official’ does not deprive an individual of life, liberty, or property

2 under the Fourteenth Amendment.” Castro v. County of Los Angeles, 833 F.3d 1060, 1071

3 (9th Cir. 2016) (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). Thus, a

4 plaintiff must “prove more than negligence but less than subjective intent—something akin

5 to reckless disregard.” Id.

6

Similarly, the Ninth Circuit Court of Appeals has held that “claims for violations of

7 the right to adequate medical care ‘brought by pretrial detainees against individual

8 defendants under the Fourteenth Amendment’ must be evaluated under an objective

9 deliberate indifference standard.” Gordon v. County of Orange, 888 F.3d 1118, 1124-25

10 (9th Cir. 2018) (quoting Castro v. County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir.

11 2016)). To state a medical care claim, a pretrial detainee must show

12

(i) the defendant made an intentional decision with respect to

13

the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering

14

serious harm; (iii) the defendant did not take reasonable

available measures to abate that risk, even though a reasonable

15

official in the circumstances would have appreciated the high

16

degree of risk involved—making the consequences of the

defendant’s conduct obvious; and (iv) by not taking such

17

measures, the defendant caused the plaintiff’s injuries.

18 Id. at 1125. “With respect to the third element, the defendant’s conduct must be objectively

19 unreasonable, a test that will necessarily ‘turn[] on the facts and circumstances of each

20 particular case.’” Castro, 833 F.3d at 1071 (quoting Kingsley v. Hendrickson, ___ U.S.

21 ___, ___, 135 S. Ct. 2466, 2473 (2015); Graham v. Connor, 490 U.S. 386, 396 (1989)).

22

The “‘mere lack of due care by a state official’ does not deprive an individual of

23 life, liberty, or property under the Fourteenth Amendment.” Castro, 833 F.3d at 1071

24 (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). A plaintiff must “prove more

25 than negligence but less than subjective intent—something akin to reckless disregard.” Id.

26 A mere delay in medical care, without more, is insufficient to state a claim against prison

27 officials for deliberate indifference. See Shapley v. Nev. Bd. of State Prison Comm’rs, 766

28 F.2d 404, 407 (9th Cir. 1985).

- 16 -

Case 2:20-cv-00901-DJH--DMF Document 29 Filed 06/02/20 Page 17 of 19

1

Further, as with Defendant Lucero-Gonzalez, because all of the Defendants are

2 named in their official capacities only, Plaintiffs Romero-Lorenzo, Peuplie, Ciecierski, and

3 Enos must demonstrate that their injuries were caused by a policy, practice, or custom of

4 the Defendants’ agencies. Monell v. Department of Social Services, 436 U.S. 658, 694

5 (1978); Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).

6

As an initial observation, the Court notes that the current global pandemic is

7 unprecedented, at least in the past century. It is a new virus for which our understanding

8 of how best to combat its transmission and symptoms is rapidly and continuously evolving.

9 There is not, to put it mildly, a large and well-developed body of either research or caselaw

10 against which to measure, objectively, the policies implemented in response to COVID-

11 19. As such, the Court relies on those recommendations provided by the CDC, and

12 specifically the CDC’s recommendations for prison populations.21

13

Upon its own review of the CDC’s Interim Guidance on Management of

14 Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, and

15 comparison between those Guidelines and those implemented by defendants, the Court

16 concludes that Defendants’ policies related to COVID-19 at CAFCC have not been,

17 objectively, deliberately indifferent to Plaintiffs’ health or safety. Rather, Defendants’

18 policies reflect the recommendations from the CDC, and have been implemented without

19 unreasonable delay as the CDC’s recommendations have been promulgated and updated.

20 Indeed, while Plaintiffs acknowledge that Defendants “must address [the risks posed by

21 COVID-19] by following public-health guidelines, including those by the Centers for

22 Disease Control and Prevention” (Doc. 2 at 7), Plaintiffs have not identified a single

23 instance in which Defendants’ policies have not complied with CDC guidance,22 or where

24

25

21 CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019-

26

ncov/community/correction-detention/guidance-correctional-detention.html (last accessed June 1, 2020).

27

22 The Court notes that Plaintiffs do argue that they were only initially provided with

28

thin, paper masks, “not the N95 masks recommended by the CDC.” (Doc. 2 at 8). However, while the CDC recommends that N95 be worn by both detainees and guards, it

also recognizes that shortages of N95 masks may require the use of alternatives. The CDC

- 17 -

Case 2:20-cv-00901-DJH--DMF Document 29 Filed 06/02/20 Page 18 of 19

1 their implementation has been unreasonably delayed. Yet, Plaintiffs’ contend that

2 Defendants’ still need to do more.23 Further, the fact that Plaintiffs seek, as injunctive

3 relief, the appointment of an expert “to determine whether Defendants have implemented

4 consistent social (or physical) distancing, novel coronavirus testing procedures, and

5 hygienic practices sufficient to reasonably protect Plaintiffs and Class Members from

6 contracting COVID-19 while in Defendants’ custody” (Doc. 2-1 at 1-2) (emphasis added),

7 supports that Plaintiffs have not made the requisite showing that they are likely to succeed

8 on the merits of their claims at this time.24

9

Although there may be instances in which Defendants’ policies have not been

10 followed — such as lack of cleaning supplies or inconsistent cleaning, or where the

11 detainees themselves do not practice social distancing or wear their masks — this does not

12 reflect that the policies themselves are objectively insufficient. Rather, it supports only that

13 various staff, detainees, or other individuals — who are not named as Defendants to this

14 action — have failed to comply with Defendants’ COVID-19-related policies. Such

15 failures do not, however, support that Defendants, named in their official capacities only,

16 are liable for Plaintiffs’ alleged injuries. Accordingly, based on the record presented at this

17 time, Plaintiffs Romero-Lorenzo, Peuplie, Ciecierski, and Enos have failed to demonstrate

18 that they are likely to succeed on the merits of their Fourteenth Amendment claim, and are

19 thus not entitled to preliminary injunctive relief.

20 / / /

21 / / /

22 specifically states that face masks are an acceptable alternative in the event of a shortage

23

of N95 respirators. CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2

24

019-ncov/community/correction-detention/guidance-correctional-detention.html accessed June 1, 2020).

(last

25

23 Plaintiffs offer the opinion of Dr. Goldenson who states that CoreCivic must

26

“substantially reduce the population” . . . “those who are medically vulnerable” and “over the age of 50” . . . “need to be moved out of Core Civic to the absolute maximum extent

27 possible.” (Doc.1-4 at 13) (Goldenson Dec’l at ¶¶ 45 & 46).

28

24 Indeed, and notwithstanding the clear risks posed by COVID-19, that Plaintiffs seek an expert to determine “whether” Defendants have violated their rights smacks of a

fishing expedition.

- 18 -

Case 2:20-cv-00901-DJH--DMF Document 29 Filed 06/02/20 Page 19 of 19

1

2 V. Conclusion

3

Because neither of the two classes of Plaintiff (pre-trial and post-conviction) have

4 met their burden for preliminary injunctive relief, the Court will deny the Motion. The

5 Court notes, however, that the denial of Plaintiffs’ Motion for Preliminary Injunction is

6 without prejudice, and if circumstances develop to where Plaintiffs again believe

7 irreparable harm may result without preliminary injunctive relief, they may seek such relief

8 by new motion to this Court.

9

IT IS ORDERED:

10

(1) The reference to the Magistrate Judge is withdrawn as to Plaintiffs’ Motion

11 for Temporary Restraining Order and Preliminary Injunction (Doc. 2).

12

(2) Plaintiffs’ Motion for Temporary Restraining Order and Preliminary

13 Injunction (Doc. 2) is denied.

14

(3) All other matters must remain with the Magistrate Judge for disposition as

15 appropriate.

16

Dated this 2nd day of June, 2020.

17

18

19

Honorable Diane J. Humetewa

20

United States District Judge

21

22

23

24

25

26

27

28

- 19 -

 
 Case 2:20-cv-00901-DJH--DMF Document 35 Filed 06/16/20 Page 1 of 8

1 Jean-Jacques Cabou (#022835) Matthew R. Koerner (#035018)
2 Margo R. Casselman (#034963) Benjamin C. Calleros (#034763)
3 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000
4 Phoenix, Arizona 85012-2788 Telephone: 602-351-8000
5 Facsimile: 602-648-7000 JCabou@perkinscoie.com
6 MKoerner@perkinscoie.com MCasselman@perkinscoie.com
7 BCalleros@perkinscoie.com DocketPHX@perkinscoie.com
8
Attorneys for Plaintiffs-Petitioners 9 (additional counsel identified on signature page)

10 IN THE UNITED STATES DISTRICT COURT
11 FOR THE DISTRICT OF ARIZONA
12

13 Maria Guadalupe Lucero-Gonzalez; Claudia Romero-Lorenzo; Tracy Ann Peuplie; James
14 Tyler Ciecierski; and Marvin Lee Enos; each individually and on behalf of all others similarly
15 situated,

No. 2:20-cv-00901-DJH
MOTION FOR RECONSIDERATION

16

17

Plaintiffs–Petitioners,

18 v.

19 Kris Kline, Warden of the Central Arizona Florence Correctional Complex; David Gonzales,
20 U.S. Marshal for the District of Arizona; Donald W. Washington, Director of the U.S. Marshals
21 Service; Michael Carvajal, Director of the Federal Bureau of Prisons, in their official capacities,
22
Defendants–Respondents.
23

24

25

26

27

28

Case 2:20-cv-00901-DJH--DMF Document 35 Filed 06/16/20 Page 2 of 8

1

MOTION FOR RECONSIDERATION

2

Pursuant to LRCiv 7.2(g) and Federal Rules of Civil Procedure 54(b) and 60, Plaintiffs-

3 Petitioners (“Plaintiffs”) move for partial reconsideration of the reasoning in the Court’s

4 June 2, 2020 Order denying Plaintiffs’ Motion for Temporary Restraining Order and

5 Preliminary Injunction (Doc. 29) (the “Order”). Plaintiffs respectfully request that the Court

6 reconsider the applicability of the standard set forth in Monell v. Department of Social Services, 436

7 U.S. 658, 694 (1978), to Plaintiffs’ claims in this case.

8

MEMORANDUM IN SUPPORT

9

Though the Court’s Order relied on Monell, no party argued that Monell applied or

10 referenced it in the briefing submitted to this Court or at the hearing on Plaintiffs’ Motion.

11 This is because Monell does not apply to Plaintiffs’ claims, which are for injunctive relief against

12 federal officials. In Monell, the Supreme Court interpreted 42 U.S.C. § 1983, a statute that

13 creates a cause of action for victims of constitutional torts committed by state and local actors

14 under color of state law. Monell, and the cases citing it that this Court references in its Order,

15 involve only state and local actors. Plaintiffs’ claims, by contrast, involve only federal actors;

16 these claims do not, and cannot, arise under 42 U.S.C. § 1983. Plaintiffs therefore respectfully

17 request that the Court reconsider this portion of the Order.

18 I. 19

Background. The Order concluded that Plaintiffs failed to demonstrate they were likely to succeed

20 on the merits of their claims, for purposes of injunctive relief, because Plaintiffs sued

21 Defendants-Respondents (“Defendants”) in their official capacities but did not demonstrate

22 that Plaintiffs could satisfy the standard set forth in Monell, 436 U.S. 658. (Doc. 29 at 13–14, 17–

23 18.) Defendants did not rely on—or even cite—Monell in their Response (see Doc. 16) or at the

24 May 22, 2020 hearing (see Doc. 32). Nor did any party brief or argue the issue.

25 II. 26

Argument. Any decision “that adjudicates fewer than all the claims or the rights and liabilities of

27 fewer than all the parties . . . may be revised at any time before the entry of a [final] judgment.”

28 Fed. R. Civ. P. 54(b); see also id. 60(a), (b) (noting that courts may correct an order or relieve a

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Case 2:20-cv-00901-DJH--DMF Document 35 Filed 06/16/20 Page 3 of 8

1 party from an order because of mistake or “any other reason that justifies relief”). A motion

2 for reconsideration must “point out with specificity the matters that the movant believes were

3 overlooked or misapprehended by the Court, any new matters being brought to the Court’s

4 attention for the first time and the reasons they were not presented earlier, and any specific

5 modifications being sought in the Court’s Order.” LRCiv 7.2(g)(1).

6

Plaintiffs request that the Court modify its Order to clarify that Monell does not apply

7 to Plaintiffs’ claims. Plaintiffs did not raise this argument earlier because, as noted above, this

8 issue was not raised either in Defendants’ Response or at the May 22 hearing. The Court’s

9 Order was the first time Plaintiffs were notified of the issue.

10

A. Monell Does Not Apply Here.

11

The Ninth Circuit has held that there is “no valid basis for a claim under” 42 U.S.C.

12 § 1983 where, as here, a plaintiff sues “federal officials acting under color of federal law,”

13 because § 1983 “provides a remedy only for deprivation of constitutional rights by a person

14 acting under color of law of any state or territory or the District of Columbia.” Daly-Murphy v.

15 Winston, 837 F.2d 348, 355 (9th Cir. 1987).

16

Monell applies to § 1983 claims. Specifically, Monell held that a plaintiff can sue a

17 municipality or other local government entity directly (rather than indirectly against the officers

18 in their individual capacities) under § 1983, if the plaintiff can demonstrate that the plaintiff’s

19 constitutional rights were violated pursuant to the municipality’s official policy, custom, or

20 practice. 436 U.S. at 690 (“Congress did intend municipalities and other local government units

21 to be included among those persons to whom § 1983 applies. Local governing bodies,

22 therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief

23 where, as here, the action that is alleged to be unconstitutional implements or executes a”

24 policy, custom, or usage of the government entity.) (footnotes omitted). Thus, Monell sets forth

25 the standard applicable to claims that are (a) brought under § 1983, (b) against municipalities,

26 (c) acting under color of state law. See Hudson v. Michigan, 547 U.S. 586, 597 (2006) (noting that

27 “the § 1983 remedy was extended to reach the deep pocket of municipalities [in Monell]”);

28 District of Columbia v. Carter, 409 U.S. 418, 424 (1973) (Section 1983 “deals only with those

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Case 2:20-cv-00901-DJH--DMF Document 35 Filed 06/16/20 Page 4 of 8

1 deprivations of rights that are accomplished under the color of the law of ‘any State or

2 Territory.’” (footnote omitted) (quoting a prior version of § 1983, which did not yet include

3 the District of Columbia)); Avalos v. Baca, 596 F.3d 583, 587 (9th Cir. 2010) (holding that Monell

4 is the standard applicable to “a public entity defendant” under § 1983).

5

Here, Plaintiffs seek only injunctive relief against federal officials in their official

6 capacities. Plaintiffs do not assert a claim under § 1983, nor do they assert claims against a

7 municipal entity. Indeed, Plaintiffs are prohibited from asserting a § 1983 claim because the

8 Defendants are federal officials, and § 1983 “does not apply to federal officials acting under

9 color of federal law.” Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1104 (D.C. Cir. 2005); see also

10 Daly-Murphy, 837 F.2d at 355. Nor do Plaintiffs assert a claim under Bivens v. Six Unknown Named

11 Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the “federal analog” to § 1983. See Ashcroft

12 v. Iqbal, 556 U.S. 662, 675–76 (2009). Plaintiffs cannot bring a Bivens claim for the injunctive

13 relief they seek because “Bivens is both inappropriate and unnecessary for claims seeking solely

14 equitable relief against actions by the federal government.” Solida v. McKelvey, 820 F.3d 1090,

15 1094–95 (9th Cir. 2016). And Plaintiffs must assert their injunctive-relief claims against

16 Defendants in their official capacities. Id. at 1094 (noting that the Supreme Court has held that

17 courts may grant injunctive relief if the Eighth Amendment’s requirements are satisfied, but

18 has “distinguished between [a] plaintiff’s damages claims against defendants in their individual

19 capacities and [a] plaintiff’s related claims for injunctive relief” (citing Farmer v. Brennan, 511

20 U.S. 825, 850–51 (1994))); see also Vaccaro v. Dobre, 81 F.3d 854, 856 (9th Cir. 1996) (holding

21 that “a Bivens action is, by definition, against defendants in their individual and not their official

22 capacity”); Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001) (“There is no such animal as a

23 Bivens suit against a public official tortfeasor in his or her official capacity.”).

24

B. This Court Has Inherent Authority to Enjoin Constitutional Violations

25

by Federal Officials and Is Not Constrained by Monell.

26

Plaintiffs’ claims are brought under the Fifth and Eighth Amendments to the U.S.

27 Constitution, and 28 U.S.C. §§ 2241 and 1331. The Supreme Court has noted that where, as

28 here, a Bivens claim is unavailable against federal prison officials, the “alternative remedies” of

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Case 2:20-cv-00901-DJH--DMF Document 35 Filed 06/16/20 Page 5 of 8

1 “a writ of habeas corpus,” “an injunction requiring the warden to bring his prison into

2 compliance,” or “some other form of equitable relief” are often still available. Ziglar v. Abbasi,

3 137 S. Ct. 1843, 1865 (2017); see also Vanaman v. Molinar, No. CV-17-00222-TUC-JGZ, 2018

4 WL 4698655, at *4 (D. Ariz. Sept. 28, 2018) (noting that, “[e]ven if Plaintiff cannot seek

5 monetary damages pursuant to Bivens, he may still seek declaratory or injunctive relief pursuant

6 to 28 U.S.C. § 1331”). In fact, “it is established practice for [the Supreme Court] to sustain the

7 jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the

8 Constitution.” Bell v. Hood, 327 U.S. 678, 684 (1946); see also Simmat v. U.S. Bureau of Prisons, 413

9 F.3d 1225, 1231 (10th Cir. 2005) (“Federal courts have long exercised the traditional powers

10 of equity, in cases within their jurisdiction, to prevent violations of constitutional rights.”).

11 Thus, in a landmark case regarding alleged unconstitutional deliberate indifference by federal

12 prison officials, the Supreme Court stated that district courts may “grant appropriate injunctive

13 relief” to prevent the ongoing violation of a federal prisoner’s Eighth Amendment rights.

14 Brennan, 511 U.S. at 827. And the Court specifically distinguished between the petitioner’s

15 damages claims brought against federal officials “in their individual capacities” and his

16 injunctive-relief claims. See id. at 850; Solida, 820 F.3d at 1094.

17

Monell does not constrain this Court’s authority to remedy the constitutional violations

18 by federal officials in this case through injunctive relief. See, e.g., Brennan, 511 U.S. at 846 (noting

19 that courts may grant injunctive relief against federal prison officials to stop ongoing violations

20 of an inmate’s Eighth Amendment rights if the inmate can demonstrate deliberate indifference

21 to substantial risk of serious harm—without mention of Monell or any requirement of an official

22 policy, practice, or custom, and notwithstanding that some defendants were sued in their

23 official capacities); Ziglar, 137 S. Ct. at 1860–62 (finding that a Bivens claim was inappropriate

24 against high-level federal executives because “Bivens is not designed to hold officers responsible

25 for acts of their subordinates,” but nonetheless finding that the “detainees may seek injunctive

26 relief” to address their concerns).

27

28

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Case 2:20-cv-00901-DJH--DMF Document 35 Filed 06/16/20 Page 6 of 8

1 III. Conclusion.

2

Because this case is still in its early stages, and to clarify the record going forward,

3 Plaintiffs respectfully request that the Court modify the Order to clarify that Monell—and its

4 requirement of an official “policy, practice, or custom” (see Doc. 29 at 14, 17)—does not apply

5 to Plaintiffs’ claims.1

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

1 Should the Court still conclude that Monell has some application here, Plaintiffs request

25

that the Court clarify that Monell is not limited to formal or written policies. Rather, Monell is also satisfied if there is an unwritten unconstitutional practice or custom. See, e.g., Board of County

26

Com’rs v. Brown, 520 U.S. 397, 404 (1997) (“[A]n act performed pursuant to a ‘custom’ that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality

to liability on the theory that the relevant practice is so widespread as to have the force of

27 law.”). Corrections officials cannot excuse a pattern of unconstitutional conduct simply by

28

writing a facially constitutional policy. See Price v. Sery, 513 F.3d 962, 972 (9th Cir. 2008) (custom or practice can establish a Monell claim “even though the formal written police does not”).

-5-

Case 2:20-cv-00901-DJH--DMF Document 35 Filed 06/16/20 Page 7 of 8

1 Dated: June 16, 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

PERKINS COIE LLP
By: s/ Margo R. Casselman Jean-Jacques Cabou (#022835) Matthew R. Koerner (#035018) Margo R. Casselman (#034963) Benjamin C. Calleros (#034763) PERKINS COIE LLP 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788
Emma Andersson (admitted pro hac vice) eandersson@aclu.org Taylor Brown* tbrown@aclu.org Alejandro Ortiz (admitted pro hac vice) ortiza@aclu.org Chase Strangio* cstrangio@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Fl. New York, New York 10004 Telephone: 917-345-1742
Somil Trivedi* strivedi@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th St., NW Washington, DC 20012 Telephone: 202-715-0802
Jared G. Keenan (#027068) jkeenan@acluaz.org Christine K. Wee (#028535) CWee@acluaz.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF ARIZONA 3707 N. 7th Street, Suite 235 Phoenix, AZ 85014
Attorneys for Plaintiffs–Petitioners
*Applications for pro hac vice forthcoming.
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Case 2:20-cv-00901-DJH--DMF Document 35 Filed 06/16/20 Page 8 of 8

1

CERTIFICATE OF SERVICE

2

I hereby certify that on June 16, 2020, I electronically transmitted the attached

3 documents to the Clerk’s Office using the CM/ECF System for filing and transmittal of same

4 to:

5

Daniel P. Struck, Bar No. 012377

6

Rachel Love, Bar No. 019881

7

Nicholas D. Acedo, Bar No. 021644

Jacob B. Lee, Bar No. 030371

8

STRUCK LOVE BOJANOWSKI& ACEDO, PLC

3100 West Ray Road, Suite 300

9

Chandler, Arizona 85226

10

Telephone: (480) 420-1600

dstruck@strucklove.com

11

rlove@strucklove.com

nacedo@strucklove.com

12

jlee@strucklove.com

13

Attorneys for Respondent Kline

14

AUSA William Staes

15

Two Renaissance Square 40 N. Central Ave, Suite 1200

16

Phoenix, Arizona 85004

William.Staes@usdoj.gov

17

Attorney for David Gonzlaes, Donald W. Washington and Michael Carvajal

18

19 By: s/ Daniel R. Graziano
20 Perkins Coie, LLP

21

22

23

24

25

26

27

28

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Case 2:20-cv-00901-DJH--DMF Document 35-1 Filed 06/16/20 Page 1 of 1

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8 Maria Guadalupe Lucero-Gonzalez; Claudia
9 Romero-Lorenzo; Tracy Ann Peuplie; James Tyler Ciecierski; and Marvin Lee Enos; each
10 individually and on behalf of all others similarly situated,
11
12 Plaintiffs–Petitioners,
13 v.
14 Kris Kline, Warden of the Central Arizona
15 Florence Correctional Complex; David Gonzales, U.S. Marshal for the District of Arizona; Donald
16 W. Washington, Director of the U.S. Marshals Service; Michael Carvajal, Director of the Federal
17 Bureau of Prisons, in their official capacities,

No. 2:20-cv-00901-DJH
[PROPOSED] ORDER GRANTING PLAINTIFFSPETITIONERS’ MOTION FOR
RECONSIDERATION

18

Defendants–Respondents.

19

20

The Court having reviewed Plaintiffs–Petitioners’ Motion for Reconsideration,

21 Defendants-Respondents’ response, and Plaintiffs–Petitioners’ reply, and good cause 22 appearing in support thereof, IT IS ORDERED THAT Plaintiffs–Petitioners’ Motion for 23 Reconsideration is GRANTED.

24

25

26

27

28

-1-

 
 Case 2:20-cv-00901-DJH--DMF Document 38 Filed 06/26/20 Page 1 of 4

1 Daniel P. Struck, Bar No. 012377 Rachel Love, Bar No. 019881
2 Nicholas D. Acedo, Bar No. 021644 Jacob B. Lee, Bar No. 030371
3 STRUCK LOVE BOJANOWSKI & ACEDO, PLC
3100 West Ray Road, Suite 300 4 Chandler, Arizona 85226
Telephone: (480) 420-1600 5 dstruck@strucklove.com
rlove@strucklove.com 6 nacedo@strucklove.com
jlee@strucklove.com 7
Attorneys for Defendant-Respondent Kris Kline 8
MICHAEL BAILEY 9 United States Attorney
District of Arizona 10 WILLIAM C. STAES
Assistant United States Attorney 11 Illinois State Bar No. 6314835
40 North Central Avenue, Suite 1800 12 Phoenix, AZ 85004-4449
Telephone: (602) 514-7500 13 Fax: (602) 514-7693
William.Staes@usdoj.gov 14
Attorneys for Defendants-Respondents 15 David Gonzales, Donald Washington,
and Michael Carvajal 16

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF ARIZONA

19 Maria Guadalupe Lucero-Gonzalez, et al.,

NO. CV-20-00901-PHX-DJH (DMF)

20

21

v.

22 Kris Kline, et al.,

Plaintiffs-Petitioners,

DEFENDANTS-RESPONDENTS’ RESPONSE TO PLAINTIFFSPETITIONERS’ MOTION FOR RECONSIDERATION (Dkt. 35)

23

Defendants-Respondents.

24

25

Defendants-Respondents Kris Kline, Warden of the Central Arizona Florence

26 Correctional Complex (“CAFCC”); David Gonzales, U.S. Marshal for the District of

27 Arizona; Donald W. Washington, Director of the U.S. Marshals Service (“USMS”); and

28

Case 2:20-cv-00901-DJH--DMF Document 38 Filed 06/26/20 Page 2 of 4

1 Michael Carvajal, Director of the Federal Bureau of Prisons (“BOP”), through their

2 respective counsel, hereby respond to Plaintiffs-Petitioners’ Motion for Reconsideration.

3 Plaintiffs correctly note that the Supreme Court in Monell v. Department of Social Services,

4 436 U.S. 658, 690–95 (1978), addressed whether a municipality (or other local entity) is

5 considered a “person” for purposes of liability under 42 U.S.C. § 1983. Plaintiffs are also

6 correct that their claims are not brought pursuant to § 1983; Defendants are federal officials

7 or private individuals acting under color of federal law and sued in their official capacity;

8 and Plaintiffs seek only injunctive relief.1 (Dkt. 1, ¶¶ 17, 24–27 & Prayer for Relief.)

9

But the Court’s brief reference in its Order to Monell did not affect its subsequent

10 substantive analysis or its conclusion—that Plaintiffs “failed to demonstrate that they are

11 likely to succeed on the merits of their [constitutional] claim[s], and are thus not entitled to

12 preliminary injunctive relief.” (Dkt. 29 at 15, 18.) See, e.g., Farmer v. Brennan, 511 U.S.

13 825, 829–30 (1994) (analyzing constitutionality of federal prison officials’ practices to

14 determine whether injunctive relief was available); Simmat v. U.S. Bureau of Prisons, 413

15 F.3d 1225, 1238 (10th Cir. 2005) (same); Hallinan v. Scarantino, No. 5:20-HC-2088-FL,

16 2020 WL 3105094, at *15 (E.D.N.C. June 11, 2020) (same). Indeed, Plaintiffs do not raise

17 any argument concerning, or otherwise take issue with, the ultimate result of the Court’s

18 Order; they do not request that the Court reconsider the result of its Order, nor do they

19 request the Court to vacate its ruling. (Dkt. 35 at 6.) In other words, although styled as a

20 Motion for Reconsideration, Plaintiffs’ motion—which asks the Court to do no more than

21

22

1 Defendants disagree with Plaintiffs’ contentions that their claims are cognizable in

an action for writ of habeas corpus under 28 U.S.C. § 2241 and that release from detention

23

is an available remedy. (See Dkt. 16 at 18–21.) See also, e.g., Ibarra-Perez v. Howard, No. CV-20-00739-PHX-DWL, 2020 WL 3440298, at *10 (D. Ariz. June 23, 2020) (“Were the

24

Court forced to answer the question, it would rule that Counts Two, Three, and Four of the Petition are subject to dismissal because they are not cognizable in a § 2241 action. The

25

appropriate way to address complaints about health care deficiencies in a detention facility is to order the facility (via injunctive relief) to fix the deficiencies, not to compel the facility

26 to release all of its detainees (or the subset of detainees who happened to file § 2241 petitions).”). While Plaintiffs’ Motion for Reconsideration does not require a robust

27 response, given its limited scope, Defendants expressly state, out of an abundance of caution, that any and all arguments not raised herein are not waived for any purposes going

28 forward.

2

Case 2:20-cv-00901-DJH--DMF Document 38 Filed 06/26/20 Page 3 of 4

1 “clarify the record” as to Monell’s applicability “going forward”—is more akin to a

2 conspicuously narrow motion for clarification. (Id.) Defendants defer to the Court as to

3 whether further clarification is necessary.

4

DATED this 26th day of June 2020.

5

STRUCK LOVE BOJANOWSKI & ACEDO, PLC

6 By /s/ Nicholas D. Acedo

7

Daniel P. Struck

Rachel Love

8

Nicholas D. Acedo

Jacob B. Lee

9

3100 West Ray Road, Suite 300

Chandler, Arizona 85226

10 Attorneys for Defendant-Respondent Kris

11

Kline

12 MICHAEL BAILEY

13

United States Attorney

District of Arizona

14

15

By /s/ Nicholas D. Acedo (with authority) William Staes

16

Assistant United States Attorney

17

Attorneys for Defendants-Respondents David Gonzales, Donald W. Washington,

18

and Michael Carvajal

19

20

21

22

23

24

25

26

27

28

3

Case 2:20-cv-00901-DJH--DMF Document 38 Filed 06/26/20 Page 4 of 4

1

CERTIFICATE OF SERVICE

2

I hereby certify that on June 26, 2020, I electronically transmitted the attached

document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a

3 Notice of Electronic Filing to the following CM/ECF registrants:

4

Alejandro Agustin Ortiz ortiza@aclu.org

Benjamin C. Calleros

bcalleros@perkinscoie.com

5

Emma A. Andersson

eandersson@aclu.org

Jean-Jacques Cabou

jcabou@perkinscoie.com

6

Margo R. Casselman

mcasselman@perkinscoie.com

Mathew R. Koerner

mkoerner@perkinscoie.com

7

Christine K. Wee

cwee@acluaz.org

Jared G. Keenan

jkeenan@acluaz.org

8

William Charles Staes

William.Staes@usdoj.gov

9

10

/s/ Nicholas D. Acedo

11 3724390

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

 
 Case 2:20-cv-00901-DJH-DMF Document 48 Filed 08/11/20 Page 1 of 19

1 MICHAEL BAILEY United States Attorney
2 District of Arizona WILLIAM C. STAES
3 Assistant United States Attorney Illinois State Bar No. 6314835
4 40 North Central Avenue, Suite 1800 Phoenix, AZ 85004-4449
5 Telephone: (602) 514-7500 Fax: (602) 514-7693
6 William.Staes@usdoj.gov Attorneys for the Federal Defendants-Respondents
7 Daniel P. Struck, Bar No. 012377
8 Rachel Love, Bar No. 019881 Nicholas D. Acedo, Bar No. 021644
9 Jacob B. Lee, Bar No. 030371

STRUCK LOVE BOJANOWSKI & ACEDO, PLC
10 3100 West Ray Road, Suite 300 Chandler, Arizona 85226
11 Telephone: (480) 420-1600 dstruck@strucklove.com
12 rlove@strucklove.com nacedo@strucklove.com
13 jlee@strucklove.com Attorneys for Defendant-Respondent Kris Kline
14

IN THE UNITED STATES DISTRICT COURT 15
FOR THE DISTRICT OF ARIZONA 16

Maria Guadalupe Lucero-Gonzalez, et al., 17

NO. CV-20-00901-PHX-DJH (DMF)

Plaintiffs-Petitioners,

18

DEFENDANTS-RESPONDEN TS’

v. 19

JOINT MOTION TO DISMISS

Kris Kline, et al., 20

Defendants-Respondents. 21

22

Defendants-Respondents Kris Kline, Warden of the Central Arizona Florence

23 Correctional Complex (“CAFCC”); David Gonzales; Donald W. Washington; and Michae l

24 Carvajal (“Defendants”), by and through their undersigned counsel, move to dismiss the

25 Class-Action Complaint for Declaratory and Injunctive Relief and Petition for Writs of

26 Habeas Corpus (Doc. 1) filed by Plaintiff-Petitioners (“Plaintiffs”) under Federal Rules of

27

28

Case 2:20-cv-00901-DJH-DMF Document 48 Filed 08/11/20 Page 2 of 19

1 Civil Procedure 12(b)(1) and 12(b)(6). This motion is supported by the follo wing

2 memorandum of points and authorities.1

3

MEMORANDUM OF POINTS AND AUTHORITIES

4

Plaintiffs commenced this action by filing a Class-Action Complaint for Declarator y

5 and Injunctive Relief and Petition for Writs of Habeas Corpus (“Complaint”). As an initia l

6 matter, Plaintiff Lucero-Gonzalez’s claims should be dismissed under Rule 12(b)(1)

7 because she has been released from custody and therefore her challenge to the conditions at

8 CAFCC and request for release are moot. Plaintiff Romero-Lorenzo’s challenge to her

9 conditions of confinement under the Due Process Clause of the Fifth Amendment should

10 be dismissed because she has received a “formal adjudication of guilt,” and thus her rights

11 are derived from the Eighth Amendment, rather than the Fifth Amendment.

12

More generally, this action should also be dismissed under Rule 12(b)(1) insofar as

13 Plaintiffs seek release from custody pursuant to writs of habeas corpus because, as

14 explained below, their conditions-of-confinement claims fall well outside the core of habeas

15 corpus. Moreover, to the extent that Plaintiffs seek release as a remedy for the alleged

16 unconstitutional conditions at CAFCC, the Prison Litigation Reform Act (“PLRA”) bars

17 the Court from granting the relief they request. In addition, Plaintiffs’ conditions- o f-

18 confinement claims should be dismissed under Rule 12(b)(6), as Plaintiffs have not pleaded

19 facts sufficient to state a claim under the Fifth or Eighth Amendments.

20

RELEVANT BACKGROUND

21

Plaintiffs are federal pretrial detainees and post-conviction prisoners at CAFCC.

22 (Doc. 1, ¶¶ 19-23.) The following summarizes each Plaintiff’s criminal proceedings: 2

23

Maria Guadalupe Lucero-Gonzalez, Case No. 4:19-cr-03359-JGZ-BGM-1 (related

24 Case No. 2:19-cr-00426-JGZ-BGM-1). On August 7, 2020, the court entered a judgme nt

25 adjudicating Ms. Lucero-Gonzalez guilty and sentencing her to time served. Id. at ECF No.

26 1 Undersigned counsels certify that they met and conferred with counsel for Plaintiffs on
27 the issues discussed herein on August 10, 2020. 2 The Court may take judicial notice of the factual and procedural posture of each crimina l
28 case. See Rosciano v. Sonchik, 2002 WL 32166630, at *6 (D. Ariz. Sept. 9, 2002).

2

Case 2:20-cv-00901-DJH-DMF Document 48 Filed 08/11/20 Page 3 of 19

1 48. On that same day, the court entered a judgment in her related case, revoking her term of

2 supervised release and committing her to a term of custody of time served. Case No. 2:19-

3 cr-00426-JGZ-BGM-1, at ECF No. 48. She was released from CAFCC on August 8, 2020.

4 See Declaration of K. Kline, ¶ 136, attached hereto as Exhibit A.3

5

Claudia Romero-Lorenzo, Case No. 4:20-cr-00171-JGZ-EJM-1. She entered a guilt y

6 plea to one count of illegal reentry, in violation of 8 U.S.C. §§ 1326(a), enhanced by 8

7 U.S.C. § 1326(b). On July 22, 2020, the court entered a judgment adjudicating Ms. Romero-

8 Lorenzo guilty and sentencing her to 10 months imprisonment. Id. at ECF No. 28.4

9

Tracy Ann Peuplie, Case No. 4:20-cr-00299-CKJ-DTF. She is charged with

10 conspiracy to possess with intent to distribute methamphetamine, 21 U.S.C. § 846;

11 possession and intent to distribute methamphetamine, §§ 841(a)(1) and (b)(1)(A)(viii) ;

12 importation of methamphetamine into the United States, §§ 952(a), 960(a)(1), and

13 960(b)(1)(H); and conspiracy to import methamphetamine into the United States, § 963.

14 Following a bond hearing, on January 28, 2020, the court ordered her detained, finding that

15 she presents a flight risk and danger to the public safety. Id. at ECF No. 22.

16

James Tyler Ciecierski, Case No. 4:19-cr-03122-RM-LAB-1. He is charged in a with

17 bank robbery by force or violence, 18 U.S.C. § 2113(a). On April 1, 2020, Magistrate Judge

18 D. Thomas Ferraro determined that Mr. Ciecierski violated the conditions of his pretrial

19 release and ordered him detained. The district court affirmed, finding that he presents a

20 flight risk and had not shown that release would mitigate the risk to his health posed by

21 COVID-19. Id. at ECF No. 37. On July 27, 2020, Magistrate Judge Ferraro denied Mr.

22 Ciecierski petition seeking review of his detention order. Id. at ECF No. 57.

23

Marvin Lee Enos, Case No. 4:19-cr-02041-JAS-DTF. He is charged with aggravate d

24 sexual abuse, 18 U.S.C. §§ 2241(a)(1), 2246(2)(A), and 1153, and assault with intent to

25 commit aggravated sexual abuse, §§ 113(a)(1) and 1153. On April 30, 2020, the Honorable

26

27 3 For purpose of this motion, Defendants submit the Declaration of Warden Kline to the extent that it relates to Plaintiff Lucero-Gonzalez’s release from CAFCC.
28 4 A copy of the judgment entered in Ms. Romero-Lorenzo’s case is attached as Exhibit B.

3

Case 2:20-cv-00901-DJH-DMF Document 48 Filed 08/11/20 Page 4 of 19

1 Judge Soto denied his motion for reconsideration of detention in light of COVID-19 Id. at

2 ECF No. 67. Mr. Enos filed an interlocutory appeal; the Ninth Circuit affirmed the distric t

3 court’s detention order, C.A. No. 20-10160, at ECF No. 11.

4

Plaintiffs commenced this action, on behalf of themselves and a putative class,

5 seeking “a declaratory judgment, injunctive relief, and writs of habeas corpus” under 28

6 U.S.C. § 2241, to remedy alleged violations of their “rights under the Fifth and Eighth

7 Amendments.” (Doc. 1, ¶¶ 10, 11, 15.) Plaintiff Lucero-Gonzalez seeks to represent herself

8 and a putative class of all current and future persons in post-conviction detention at CAFCC

9 (“Post-Conviction Class”); Plaintiffs Romero-Lorenzo, Peuplie, Ciecierski, and Enos seek

10 to represent themselves and a putative class of all current and future persons in pretrial

11 detention at CAFCC (“Pretrial Class”). (Doc. 1, ¶¶ 69-71.)

12

The Complaint includes two claims. In their first claim, the pretrial Plaintiffs allege

13 that Defendants have subjected them and the putative Pretrial Class members to conditio ns

14 of confinement that violate the Due Process Clause of the Fifth Amendment. (Doc. 1, ¶¶

15 80-91.) In claim two, Plaintiff Lucero-Gonzalez alleges that Defendants subjected her and

16 the putative Post-Conviction Class members to conditions of confinement that violate the

17 Eighth Amendment’s proscription on “cruel and unusual punishments.” (Doc. 1, ¶¶ 93-

18 103.) Plaintiffs’ “claims arise from the same policies, practices, and procedures (or lack

19 thereof) that provide the basis for the proposed class members’ claims.” (Doc. 1, ¶ 21). In

20 other words, as this Court noted, “Plaintiffs’ claims are … directed at the policie s

21 Defendants established in response to the ongoing COVID-19 pandemic.” (Doc. 45 at 3.)

22

Plaintiffs allege that the pods at CAFCC contain either 40 or 80 detainees. (Id., ¶ 46.)

23 Individual cells house from two to 14 detainees, who share a single toilet and sink. (Id., ¶

24 47.) Defendants place arriving detainees in quarantine for a period of 14 days, but

25 “[s]ometimes” a detainee is removed from quarantine “by mistake” before the end of the

26 14-day period. (Id., ¶ 49.) Detainees “frequently stand close together in lines when waiting

27 for food at mealtime, for medical appointments,” and “for the communal telephones.” (Id.,

28 ¶ 50.) Defendants provided detainees with masks in mid-April but “Plaintiffs ha[d] received

4

Case 2:20-cv-00901-DJH-DMF Document 48 Filed 08/11/20 Page 5 of 19

1 only one or two masks” as of the filing of this action. (Id., ¶¶ 51, 54.) Since approxima te ly

2 April 30, 2020, Defendants have required Plaintiffs to wear masks when outside of their

3 pods but not when inside their pods or cells. (Id., ¶ 53.) Defendants have also required staff

4 to wear masks but “many are still not consistently wearing masks or gloves.” (Id.) Plaintif fs

5 receive a small amount of soap and shampoo once a week and must purchase additiona l

6 soap from the commissary, should they run out before the next allotment. (Id., ¶ 55.)

7 Housing units and cells are not “adequately and consistently” cleaned (id., ¶ 56), with Ms.

8 Peuplie reporting that “showers are cleaned twice a day” and “pods are cleaned once or

9 maybe twice a day” (Doc. 1-7, ¶ 5), and Ms. Lucero-Gonzalez reporting that she “receive [s ]

10 cleaning supplies” to clean her cell “twice a day” (Doc. 1-5, ¶ 14). “Only a handful of people

11 at [CAFCC] have been tested for COVID-19 or checked for symptoms,” and Defendants

12 have not provided Plaintiffs with information about COVID-19, although Ms. Peuplie “has

13 seen a few signs posted about COVID-19” at CAFCC. (Doc. 1, ¶¶ 59-60; Doc. 1-7, ¶ 11.)

14

Plaintiffs contend that the “conditions and policies at [CAFCC] expose [them] to

15 unreasonable risk of contracting COVID-19” and that Defendants “must respond” to the

16 “risks posed by the COVID-19 outbreak by following [Centers for Disease Control and

17 Prevention (“CDC”)] and other public health guidelines.” (Doc. 1, ¶¶ 44-45.) They ask the

18 Court to enter an injunction to “ensure” that all detainees can “practice social (or physica l)

19 distancing at all times” and “practice adequate” hygiene; “frequently touched surfaces” are

20 cleaned “with disinfectant products effective against” COVID-19; every detainee has access

21 to “adequate” personal protective equipment; every detainee “exposed to COVID-19” is

22 quarantined in a non-punitive setting and tested; Defendants “implement testing

23 procedures” consistent with CDC and public health guidance; and that the Court order the

24 “release” of Plaintiffs pursuant to “writs of habeas corpus.” (Id., Prayer for Relief.)

25

LEGAL STANDARDS

26

A Rule 12(b)(1) motion challenges the federal court’s jurisdiction over the subject

27 matter of the complaint. Plaintiffs bear the burden of establishing that subject matter

28 jurisdiction exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

5

Case 2:20-cv-00901-DJH-DMF Document 48 Filed 08/11/20 Page 6 of 19

1 A Rule 12(b)(1) motion will be granted when, looking at the entirety of the complaint, its

2 allegations fail to establish jurisdiction either facially or factually. Safe Air for Everyone v.

3 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

4

Under Rule 12(b)(6), a plaintiff’s complaint must allege “enough facts to state a

5 claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

6 (2007). A plaintiff must allege facts that add up to “more than a sheer possibility that a

7 defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). The court

8 accepts as true all well-pleaded facts in the complaint, but is not required to accept

9 “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonab le

10 inferences.” In re Gilead Sci. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Nor is the

11 court required to “accept as true allegations contradicting documents that are referenced in

12 the complaint or that are properly subject to judicial notice.” Lazy Y Ranch Ltd. v. Behrens,

13 546 F.3d 580, 588 (9th Cir. 2008). Moreover, the court may consider “documents attached

14 to the complaint, documents incorporated by reference in the complaint, or matters of

15 judicial notice” without “converting [a Rule 12(b)(6)] motion to dismiss into a motion for

16 summary judgment.” United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003).

17

ARGUMENT

18 I. PLAINTIFF LUCERO-GONZALEZ’S CLAIMS ARE MOOT

19

Article III restricts federal court jurisdiction to actual “[c]ases” and

20 “[c]ontroversies.” U.S. Const., art. III, § 2. “One element of the case-or-controvers y
21 requirement is that plaintiffs must establish that they have standing to sue.” Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 408 (2013) (internal quotations omitted). The standing 22
doctrine demands that a plaintiff have “a personal stake in the outcome of the controvers y 23
[so] as to warrant his invocation of federal-court jurisdiction.” Warth v. Seldin, 422 U.S. 24
490, 498 (1975) (internal quotations omitted). Plaintiff Lucero-Gonzalez challenges the 25
conditions of her confinement under the Eighth Amendment, seeking prospective injunc tive
26 relief and release pursuant to a writ of habeas corpus. Because she has been released from
27 CAFCC (see Ex. A, ¶ 163), her Eighth Amendment challenge to conditions at CAFCC and

28

6

Case 2:20-cv-00901-DJH-DMF Document 48 Filed 08/11/20 Page 7 of 19

1 petition for writ of habeas corpus are therefore moot. See Munoz v. Rowland, 104 F.3d 1096,

2 1097–98 (9th Cir.1997) (“Because Munoz has been released from the SHU,” his

3 “challenges to the … conditions of confinement in the SHU are therefore moot[.]”) ;

4 Johnson v. Moore, 948 F.3d 517, 519 (9th Cir. 1991) (where prisoner is released his or her

5 claim for injunctive relief concerning conditions of confinement is moot).

6 II. PLAINTIFF ROMERO-LORENZO HAS NO FIFTH AMENDMENT CLAIM

7

Plaintiff Romero-Lorenzo is “awaiting sentencing” and seeks to represent a class of

persons detained at CAFCC “pending trial.” (Doc. 1, ¶¶ 20, 70.) A pretrial detainee’s 8
constitutional rights derive from the Due Process Clause of the Fifth Amendment, rather 9
than the Eighth Amendment. Kingsley v. Hendrickson, 576 U.S. 389, 400 (2015). Plaintiff
10 Romero-Lorenzo’s claims, as currently pleaded, challenge the conditions of her

11 confinement under Fifth Amendment. (Doc. 1, ¶¶ 70, 80-92.) A judgment and commitme nt

12 of guilt has now been issued in her criminal case (see Ex. B), thus, she has received a

13 “formal adjudication of guilt” and her rights must be found in the Eighth Amendment. City

14 of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). Since Plaintiff Romero-Lorenzo’ s

15 constitutional rights are derived from the Eighth Amendment, rather than the Fifth

16 Amendment, her claims as currently pleaded should be dismissed.

17 III. THE COURT LACKS JURISDICTION OVER PLAINTIFFS’ PETITION FOR WRITS OF HABEAS CORPUS UNDER 28 U.S.C. § 2241
18 Plaintiffs seek an order providing for the “release” of detainees pursuant to “writs of
19 habeas corpus under 28 U.S.C. § 2241.” (Doc. 1, ¶¶ 10-11, 15, Prayer for Relief.) Plaintif fs'
20 petition for writs of habeas corpus should be dismissed under Rule 12(b)(1) because their
21 conditions-of-confinement claims fall well outside the core of habeas corpus and are not
22 cognizable under 28 U.S.C. § 2241. The Supreme Court has repeatedly drawn a line
23 between “two broad categories of prisoner petitions: (1) those challenging the fact or
24 duration of confinement itself; and (2) those challenging the conditions of confineme nt. ”
25 McCarthy v. Bronson, 500 U.S. 136, 140 (1991). Challenges to the fact or duration of
26 confinement are those in which the prisoners’ success would “necessarily imply the
27 invalidity of their convictions or sentences.” Wilkinson v. Dotson, 544 U.S. 74, 82 (2005).
28

7

Case 2:20-cv-00901-DJH-DMF Document 48 Filed 08/11/20 Page 8 of 19

1 “[W]here an inmate seeks injunctive relief challenging the fact of his conviction or the

2 duration of his sentence,” his claim “fall[s] within the ‘core’ of federal habeas.” Nelson v.

3 Campbell, 541 U.S. 637, 643 (2004). “By contrast, constitutional claims that merely

4 challenge the conditions of a prisoner’s confinement, whether the inmate seeks monetar y

5 or injunctive relief, fall outside of that core.” Id.

6

The Ninth Circuit also recognizes this distinction: “Habeas corpus proceedings are

7 the proper mechanism for a prisoner to challenge the ‘legality or duration’ of confineme nt.
8 A civil rights action, in contrast, is the proper method of challenging ‘conditions of
9 confinement.’” Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (citations omitted) ;
10 Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979) (“[T]he writ of habeas corpus is limite d
11 to attacks upon the legality or duration of confinement.”).5 In Nettles v. Grounds, 830 F.3d
12 922 (9th Cir. 2016) (en banc), the Ninth Circuit emphasized this distinction, holding that a
13 prisoner’s claim which “does not lie at the core of habeas corpus … may not be brought in
14 habeas corpus” but instead “must be brought, if at all, under § 1983.” Id. at 931, 933 (internal quotations and citations omitted). To be sure, Nettles involved a state prisoner and
15 the court declined to address whether its holding would extend to federal prisoners, but its
16 reasoning applies with equal force to such prisoners, who may challenge their conditions of
17 confinement through a federal civil rights action (as Plaintiffs do here) instead of pursuant
18 to § 1983. Id at 931 n.6; see also Chester v. Carr, 2018 WL 5862823, at *8 (C.D. Cal. July
19 10, 2018) (“District courts have also applied the reasoning of Nettles to habeas petitions
20 brought by federal prisoners.”).6 Moreover, a recent majority of district courts within this 21
5 See also, e.g., Shook v. Apker, 472 F. App’x 702, 702-03 (9th Cir. 2012) (“Shook’s claims 22 [of inadequate medical care] concern the conditions of his confinement and are properly
brought under Bivens” rather § 2241); Alcala v. Rios, 434 F. App’x 668, 669-70 (9th Cir. 23 2011) (“Alcala’s claims are not cognizable under 28 U.S.C. § 2241[.] … [T]he petitio n
challenges the conditions of confinement and therefore should have been brought as a civil 24 rights action.”); Greenhill v. Lappin, 376 F. App’x 757, 757 (9th Cir. 2010).
6 Notably, the Third, Fourth, Seventh, Eighth, and Tenth Circuits have held that suits 25 challenging conditions of confinement are not cognizable in habeas. See, e.g., Spencer v.
Haynes, 774 F.3d 467, 469-470 (8th Cir. 2014); Braddy v. Wilson, 580 Fed. Appx. 172, 173 26 (4th Cir. 2014); Cardona v. Bledsoe, 681 F.3d 533, 535-537 (3d Cir.), cert. denied, 568
U.S. 1077 (2012); Palma-Salazar v. Davis, 677 F.3d 1031, 1035-1038 (10th Cir. 2012); 27 Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005). By contrast, the D.C., Second, and
Sixth Circuits have permitted petitioners to bring conditions of confinement claims under 28 section 2241. Wilson v. Williams, 961 F.3d 829, 839 (6th Cir. 2020); Aamer v. Obama, 742

8

Case 2:20-cv-00901-DJH-DMF Document 48 Filed 08/11/20 Page 9 of 19
1 circuit appear to hold that challenges to prison conditions based on COVID-19 are not
2 cognizable in a habeas action under § 2241. See, e.g., Wilson v. Ponce, 2020 WL 3053375,
3 at *10 (C.D. Cal. June 8, 2020); Smith v. Blanckensee, 2020 WL 4370954, at *3 (C.D. Cal. 4 July 2, 2020), report and rec. adopted, 2020 WL 4368060 (C.D. Cal. July 30, 2020); Ibarra5 Perez v. Howard, 2020 WL 3440298, at *10 (D. Ariz. June 23, 2020); Hunter v. Martinez, 6 2020 WL 3258398, at *4 (C.D. Cal. June 12, 2020); Alvarez v. Larose, 2020 WL 2315807, 7 at *3 (S.D. Cal. May 9, 2020); Bolden v. Ponce, 2020 WL 2097751, at *2 (C.D. Cal. May 8 1, 2020); Merino v. Figueroa, et al., 20-CV-00600-PHX-JJT, ECF No. 7 at 5 (D. Ariz. Apr. 9 3, 2020). But see, e.g., Torres v. Milusnic, 2020 WL 4197285, at *7 (C.D. Cal. July 14,
2020); Urdaneta v. Keeton, 2020 WL 2319980, at *6 (D. Ariz. May 11, 2020). 10
Here, Plaintiffs’ claims cannot be characterized as anything but a challenge to their 11
conditions of confinement. Plaintiffs assert that they “bring this putative class action, 12
seeking constitutionally adequate conditions of confinement.” (Doc. 1, ¶ 10.) They seek a 13
declaratory judgment that “the current conditions of confinement at [CAFCC]” violate the 14
Fifth and Eighth Amendments. (Doc. 1, ¶ 15.) And their claims for relief are captioned 15
“Unconstitutional conditions of confinement in violation of the Due Process Clause of the 16
Fifth Amendment” and “Unconstitutional conditions of confinement in violation of the 17 Eighth Amendment.” (Doc. 1, pp. 22, 23.) At no point do Plaintiffs challenge the reason for 18 their confinement, the validity of their conviction or charge, or the length of their 19 sentence—i.e., the type of claims that the Supreme Court has characterized as “the core of 20 habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 487 (1973); Alvarez, 2020 WL 21 2315807 at *3; Hallinan v. Scarantino, 2020 WL 3105094, at *11 (E.D.N.C. June 11, 22 2020); Wragg v. Ortiz, 2020 WL 2745247, at *18 (D.N.J. May 27, 2020). Rather, as the 23 substance of the Complaint makes clear, their claims are based exclusively on the conditio ns
24 inside CAFCC. “In other words, unlike a claim concerning the fact of confineme nt,
25 Plaintiffs’ claims would not exist but for their current conditions of confinement at
26 [CAFCC].” Alvarez, 2020 WL 2315807 at *3. Plaintiffs’ action must be construed for what 27 it was filed as and what it is—a civil rights action challenging their conditions of their
28 F.3d 1023, 1038 (D.C. Cir. 2014); Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008).
9

Case 2:20-cv-00901-DJH-DMF Document 48 Filed 08/11/20 Page 10 of 19

1 confinement at CAFCC. Accordingly, their claims fall outside of the core of habeas corpus

2 and their petition for writs of habeas corpus must be dismissed for lack of jurisdiction.

3 III. THE PLRA PREVENTS THE COURT FROM GRANTING PLAINTIFFS ’ REQUEST FOR THE RELEASE OF DETAINEES FROM CAFCC
4 Plaintiffs’ request for release should also be dismissed under the PLRA, which
5 precludes this Court from releasing detainees from CAFCC. Congress enacted the PLRA to 6 “revive the hands-off doctrine” and remove the federal judiciary from day-to-day prison
7 management. Gilmore v. California, 220 F.3d 987, 991, 996-97 (9th Cir. 2000). The PLRA
8 “restrict[s] the equity jurisdiction of federal courts,” id. at 999, and “the circumstances in

9 which a court may enter an order ‘that has the purpose or effect of reducing or limiting the

10 prison population,’” Brown v. Plata, 563 U.S. 493, 511 (2011). Because “[t]he release of

11 prisoners . . . is a matter of undoubted, grave concern,” the PLRA “ensure[s] that the ‘last

12 remedy’ of a population limit is not imposed ‘as a first step.’” Id. at 501, 514.

13

To that end, the PLRA places strict limits on a district court’s ability to order the

14 release of inmates “in any civil action with respect to prison conditions,” and precludes a
15 single district court judge from doing so. 18 U.S.C. § 3626(a)(3)(A)-(B). The law applies to “any civil proceeding arising under Federal law with respect to the conditions of
16 confinement or the effects of actions by government officials on the lives of persons
17 confined in prison, but does not include habeas corpus proceedings challenging the fact or
18 duration of confinement in prison.” Id. § 3626(g)(2). In such a suit, the court “may enter a
19 temporary restraining order or an order for preliminary injunctive relief,” but such relie f
20 “must be narrowly drawn, extend no further than necessary to correct the harm,” and “be

21 the least intrusive means necessary to correct that harm.” Id. § 3626(a)(2). A “prisone r

22 release order,” which “includes any order … that has the purpose or effect of reducing or

23 limiting the prison population” or “directs the release from or nonadmission of prisoners to

24 a prison,” § 3626(g)(4), may “be entered only by a three-judge court,” § 3623(a)(3)(B).

25

Insofar as Plaintiffs seek release as a remedy for the alleged unconstitutio na l

26 conditions at CAFCC—either for themselves or for the putative class members—the PLRA 27 prevents this Court from granting that relief. Under § 3626(a)(3)(B), “[t]he authority to 28 order release of prisoners as a remedy to cure a systemic violation of the Eighth Amend me nt

10

Case 2:20-cv-00901-DJH-DMF Document 48 Filed 08/11/20 Page 11 of 19

1 is a power reserved to a three-judge district court, not a single-judge district court.” Plata,

2 563 U.S. at 500; 18 U.S.C. § 3626(a)(3)(B). Such an order may not be entered unless “(i) a

3 court has previously entered an order for less intrusive relief that has failed to remedy the

4 deprivation … and (ii) the defendant has had a reasonable amount of time to comply with
5 the previous court orders.” Id. § 3626(a)(3)(A). Even then, a three-judge court may order
6 prisoners released only upon “clear and convincing evidence” that “crowding is the primar y
7 cause of the violation” and “no other relief will remedy [it.]” Id. § 3626(a)(3)(E)(i)-(ii). As discussed above, there can be no dispute that the instant lawsuit is a “civil action
8 with respect to prison conditions” governed by § 3626, which defines “civil action with
9 respect to prison conditions” broadly to mean “any civil proceeding arising under Federal
10 law with respect to the conditions of confinement or the effects of actions by governme nt
11 officials on the lives of persons confined in prison.” 18 U.S.C. § 3626(g)(2). See, e.g.,
12 Alvarez, 2020 WL 2315807, at *3-4 (holding “the PLRA applies to Plaintiffs’ claims and
13 divests the Court of authority to grant” their “release” in identical case); Money v. Pritzker,
14 2020 WL 1820660, at *10-14 (N.D. Ill. Apr. 10, 2020) (same). In turn, the PLRA precludes

15 the Court from releasing detainees from CAFCC as requested by Plaintiffs. Id. §

16 3626(a)(3)(B). As “[t]he release of prisoners … is a matter of undoubted, grave concern,”

17 Plata, 563 U.S. at 501, the Court should dismiss Plaintiffs’ action insofar as it seeks the

18 release of detainees because (i) such relief is precluded by the PLRA and (ii) disposing of

19 this matter now would significantly narrow the issues should this case move forward.

20 IV. PLAINTIFFS FAILS TO STATE AN EIGHTH AMENDMENT CLAIM

21

Plaintiff Lucero-Gonzalez claims that policies, practices, and procedures that

22 Defendants have implemented at CAFCC violate the Eighth Amendment. (Doc. 1, ¶¶ 71,

23 76, 93-103.) In addition to her claim being moot, as discussed above, the Court should

24 dismiss her Eighth Amendment claim because the Complaint does not include any facts

25 whatsoever showing that Defendants, through any policy, practice, or custom impleme nte d

26 at CAFCC, have acted with subjective deliberate indifference. To state an Eighth

27 Amendment conditions-of-confinement claim, plaintiffs must allege facts plausib ly

28 showing that prison officials acted with “deliberate indifference to inmate health or safety. ”

11

Case 2:20-cv-00901-DJH-DMF Document 48 Filed 08/11/20 Page 12 of 19

1 Farmer v. Brennan, 511 U.S. 825, 834 (1994). To act with deliberate indifference, “the

2 official must both be aware of facts from which the inference could be drawn that a

3 substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837. This

4 “is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). It

5 requires more than negligence or lack of ordinary due care. Farmer, 511 U.S. at 835.

6 “[E]ven gross negligence” will “not suffice.” Wood v. Housewright, 900 F.2d 1332, 1334

7 (9th Cir. 1990). “A difference of opinion,” Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.

8 1989), or “mere delay” in medical care, without more, is also insufficient, Shapley v. Nev.

9 Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985).

10

The Complaint as pleaded does not satisfy this high standard. As an initial matter,

11 Plaintiffs acknowledge that detainees are quarantined for 14 days upon admission to

12 CAFCC (Doc.1, ¶ 49); Defendants have provided detainees with masks (id., ¶¶ 51, 54);

13 Defendants require detainees to wear masks when outside of their pods (id., ¶ 53);

14 Defendants require staff to wear masks (id.); and Defendants have enacted various polices

15 at CAFCC in response to COVID-19 (id., ¶ 61.) As reflected in the materials that Plaintif fs

16 cite in their Complaint, Defendants have implemented an array of policies to protect

17 detainees from the risks posed by COVID-19. Among other things, Defendants screen all

18 employees upon entry; require staff conducting entry screenings to wear appropriate

19 personal protective equipment (“PPE”); have adopted policies consistent with CDC

20 recommendations on sanitation, including cleaning and disinfecting frequently touched

21 surfaces with EPA-registered disinfectants effective against COVID-19; have adopted

22 policies consistent with CDC recommendations on PPE; and have routinely encouraged

23 staff and detainees to practice social distancing, including at regular town hall meetings and

24 through materials posted in the facility.7 Defendants have suspended visitation, purchased

25 COVID-19 testing kits, secured additional stores of PPE, communicated best practices for

26

27 7 See CoreCivic, Inc., CoreCivic Statement on COVID-19 Prevention, available at https://www.corecivic.com/en/corecivic-statement-on-covid-19-prevention, which is cited
28 in the Complaint (Doc. 1) at page 17, footnote 98, and attached as Exhibit C.

12

Case 2:20-cv-00901-DJH-DMF Document 48 Filed 08/11/20 Page 13 of 19

1 personal hygiene, and taken measures to ensure that detainees have access to medical care. 8

2 Defendants have made soap and hygiene materials readily available; adopted increased

3 sanitation practices; educated staff and detainees on prevention measures recommended by

4 the CDC; and implemented processes to detect and track COVID-19, collect, analyze and

5 report data on individuals exhibiting signs of the virus, and segregate infected individua ls . 9

6

Plaintiffs acknowledge that Defendants aggressively implemented an array of health

7 and safety measures in response to COVID-19, but allege that these efforts are “inadeq uate

8 to stop the virus from spreading.” (Doc. 1, ¶ 61.) A bare allegation that prison officials have

9 taken “inadequate measures” does not suffice to show deliberate indifference because, as

10 explained in Valentine v. Collier, such an allegation (even if true) says nothing about the

11 officials’ state of mind. 956 F.3d 797, 802 (5th Cir. 2020). Rather, to allege deliberate

12 indifference, Plaintiffs must plead facts showing that Defendants “subjectively believe the

13 measures they are taking are inadequate.” Id. Plaintiffs allege no such facts here.

14

Inasmuch as Plaintiffs report instances of alleged noncompliance with the policie s

15 Defendants have implemented, such as inadequate cleaning of their pods, infreq ue nt

16 sanitation of high-touch surfaces, insufficient soap, detainees themselves not maintaining

17 social distance, or officers not “consistently” wearing masks, these allegation “at most show

18 that [D]efendants’ response was imperfect,” which “is not enough to establish deliberate

19 indifference.” Cameron v. Bouchard, 2020 WL 3867393, at *6 & n.3 (6th Cir. July 9, 2020);

20 Valentine, 956 F.3d at 802 (explaining the subjective deliberate indifference standard does

21 not look to “whether or how [a prison’s] policy is being administered”). Simila r ly,

22 allegations that detainees cannot practice social distancing at all times or that social

23 distancing policies are not uniformly enforced cannot alone establish deliberate

24 indifference. Swain v. Junior, 961 F.3d 1276, 1287, 1290 (11th Cir. 2020). Nor can a

25 8 See CoreCivic, Inc., How CoreCivic is Managing COVID-19, available at

26

https://www. core c ivic.co m/hub fs/_ f iles /CoreC ivic%20 Re spo ns e%20 to %20COVID- 1.pd f, cited in the Complaint (Doc. 1) at page 17, footnote 98, and attached as Exhibit D.

27

9 See CoreCivic Inc., Frequently Asked Questions Regarding COVID-19, available at https://www.corecivic.com/hubfs/_files/FAQ%20Regarding%20COVID.pdf, cited in the

28 Complaint (Doc. 1) on page 17, at footnote 98, and attached as Exhibit E.

13

Case 2:20-cv-00901-DJH-DMF Document 48 Filed 08/11/20 Page 14 of 19

1 “general awareness of the dangers posed by COVID-19” suffice to show deliberate

2 indifference. Valentine, 956 F.3d at 802. However, aside from stating legal conclusio ns ,

3 that’s all Plaintiffs seem to allege here. (Doc. 1, ¶ 101.)

4

At bottom, Plaintiffs have not stated any facts whatsoever that show Defendants

5 implemented a policy, practice, or custom at CAFCC which they “subjectively believe [d] ”

6 to be “inadequate,” Valentine, 956 F.3d at 802, or “failed to take any steps to address [a

7 known] risk,” Wilson v. Williams, 961 F.3d 829, 843 (6th Cir. 2020) (emphasis added).

8 Indeed, “the very fact that Defendants have enacted such policies supports that they have

9 not been subjectively indifferent.” Doc. 29 at 14-15.

10 V. PLAINTIFFS FAIL TO STATE A FIFTH AMENDMENT CLAIM

11

The Court should dismiss the pretrial Plaintiffs’ Fifth Amendment claim under Rule

12 12(b)(6) because they have not alleged facts sufficient to show that Defendants, through a

13 policy, practice, or custom they implemented at CAFCC, have recklessly disregarded the

14 Plaintiffs’ health or safety or that their detention constitutes punishment.

15

A. Defendants Have Not Disregarded The Health Or Safety Of Detainees.

16

Plaintiffs allege that Defendants “have violated the Pretrial Class’s rights under the

17 Due Process Clause of the Fifth Amendment” by “failing to provide for [their] reasonable

18 safety” and “adequate medical care.” (Doc. 1, ¶ 82.) Under the so-called “specia l

19 relationship” doctrine, when the State takes a person into its custody, the Due Process

20 Clause of the Fifth Amendment requires the government to provide for his or her “basic

21 human needs—e.g., food, clothing, shelter, medical care, and reasonable safety.” DeShaney

22 v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989). To state a claim under

23 the special relationship doctrine, a pretrial detainee must allege facts that show:

24

(i) the defendant made an intentional decision with respect to the conditio ns

under which the plaintiff was confined; (ii) those conditions put the plaintiff at

25

substantial risk of suffering serious harm; (iii) the defendant did not take

26

reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk

27

involved—making the consequences of the defendant’s conduct obvious; and

(iv) by not taking such measures, the defendant caused the plaintiff’s injuries. 28

14

Case 2:20-cv-00901-DJH-DMF Document 48 Filed 08/11/20 Page 15 of 19

1 Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018); Doc. 29 at 15-16. The

2 third element incorporates an “objective deliberate indifference standard.” Id. This element

3 requires a plaintiff to show “more than negligence but less than subjective intent—

4 something akin to reckless disregard.” Id. (internal quotations and citation omitted); Castro

5 v. County of Los Angeles, 833 F.3d 1060, 1068-71 (9th Cir. 2016). In other words, Plaintiffs ’

6 due process claim requires them to show more than that Defendants acted unreasonably.

7

As discussed above, the Complaint alleges facts or incorporates materials evidenc ing

8 that Defendants have adopted an array of policies in response to COVID-19, includ ing

9 quarantining new arrivals for a period of 14-days; providing detainees with face masks and

10 requiring them to wear masks when outside of their pods; requiring staff to wear face masks;

11 screening employees upon entering the facility; requiring staff conducting entry screenings

12 to wear appropriate PPE; adopting policies consistent with CDC recommendations on

13 sanitation; adopting policies consistent with CDC recommendations on PPE; encouraging

14 staff and detainees to practice social distancing; suspending visitation; purchasing COVID-

15 19 testing kits; securing additional stores of PPE; educating staff and detainees on

16 prevention measures recommended by the CDC; making soap and hygiene materials readily

17 available to detainees; communicating best practices for personal hygiene; ensuring that

18 detainees have access to medical care; and adopting processes to detect and track COVID-

19 19, collect, analyze and report data on individuals exhibiting signs of the virus, and

20 segregate infected detainees. The fact that Defendants aggressively moved to adopt and

21 implement these policies does not evidence a reckless disregard for the health or safety of

22 detainees. To the contrary, it shows that Defendants have responded to COVID-19 with

23 seriousness, diligence, and to safeguard the well-being of the detainees in their care.

24

At any rate, although Plaintiffs acknowledge that Defendants have enacted these

25 policies, they do not allege facts showing that these policies themselves are objective ly

26 insufficient. Indeed, Plaintiffs assert that Defendants must respond to risks posed by the

27 COVID-19 by following CDC guidelines. (Doc. 1, ¶¶ 44-45.) However, consistent with this

28 Court’s finding (albeit on a more robust record) that “Defendants’ policies reflect the

15

Case 2:20-cv-00901-DJH-DMF Document 48 Filed 08/11/20 Page 16 of 19

1 recommendations from the CDC,” even Plaintiffs’ allegations fail to point to discrete

2 policies that Defendants have implemented that fall short of CDC recommendations. Doc.

3 29 at 17-18 (finding “Plaintiffs have not identified a single instance in which Defendants ’

4 policies have not complied with CDC guidance”).

5

To be sure, Plaintiffs report alleged instances of inadequate cleaning of their pods,

6 infrequent cleaning of high-touch surfaces, insufficient soap, detainees not practicing social

7 distance or wearing their masks, or officers not “consistently” wearing masks, but as the

8 Court explained in denying Plaintiffs’ request for preliminary injunction, these alleged

9 instances do “not reflect that [Defendants’] policies themselves are objectively insufficie nt, ”

10 but instead concern how those policies are being administered. See id. at 18; Ibarra-Perez,

11 2020 WL 3440298 at *12 (holding “instances in which staff failed to adequately sanitize

12 units, detainees failed to report COVID-19 symptoms,” and “detainees failed to receive

13 certain types of soap … may show that Respondents’ implementation … has been less than

14 perfect,” but “it does not demonstrate … reckless disregard”). Similarly, Plaintiff’ s

15 allegation that “[s]ometimes” a detainee is removed from quarantine “by mistake” (Doc. 1,

16 ¶ 49) does not reflect that Defendants have acted with reckless disregard, let alone that

17 Defendants’ quarantine policy itself is objectively insufficient. And Plaintiffs have not

18 pleaded any facts showing that Defendants—all high-level officials sued in their offic ia l

19 capacities—knew of the alleged noncompliance and failed to take action, or that the

20 noncompliance was so widespread to amount to a de facto policy, practice, or custom in

21 reckless disregard to Plaintiffs’ health or safety. Accordingly, the Complaint does not

22 contain factual material sufficient to show that Defendants can he held liable under the Due

23 Process Clause of the Fifth Amendment.

24

B. Plaintiffs’ Detention Is Not Punitive.

25

The Ninth Circuit has held that a pretrial detainee “cannot be subjected to conditio ns

26 that amount to punishment.” Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004) (inter na l

27 quotations omitted); Bell v. Wolfish, 441 U.S. 520, 535 (1979). A condition is punitive when

28 “imposed for the purpose of punishment” or “excessive in relation” to its non-punitive

16

Case 2:20-cv-00901-DJH-DMF Document 48 Filed 08/11/20 Page 17 of 19

1 purpose. See Bell, 441 U.S. at 538-39. The Supreme Court has long held that the governme nt

2 may “detain a person suspected of committing a crime prior to a formal adjudication of

3 guilt,” id. at 534, and that pretrial detention is a legitimate means of furthering the

4 government’s “substantial interest in ensuring that persons accused of crimes are availab le

5 for trials and, ultimately, for service of their sentences,” id.

6

As recounted above, the pretrial Plaintiffs have all been charged with serious federal

7 crimes, including drug crimes, bank robbery, and aggravated sexual abuse. They have all

8 been determined a serious flight risk, a danger to the community, or both, and they are all

9 subject to valid orders of detention. Plaintiffs allege that the “challenged governme nta l

10 action is not rationally related to a legitimate governmental objective or … it is excessive

11 in relation to that purpose” (Doc. 1, ¶ 83 [quoting Kinglsey, 135 S.Ct. at 2473-74].) Apart

12 from that threadbare legal conclusion, the Complaint does not appear to contain any factua l

13 allegations support to their claim. At any rate, the government has a substantial interest in

14 the pretrial Plaintiffs’ continued detention to secure their presence at future court

15 proceedings and protect the safety of other persons in the community. Given the array of

16 precautionary measures that Defendants have taken to protect the safety and health of

17 detainees at CAFCC, the pretrial Plaintiffs’ continued detention simply cannot be

18 considered excessive in relation to the government’s substantial and legitimate, non-

19 punitive interests. Accordingly, the pretrial Plaintiffs’ Fifth Amendment claims should be

20 dismissed. See, e.g., United States v. Enos, Case No. 19-cr-02041-JAS-DTF, ECF No. 67

21 at 16-17 (D. Ariz. April 30, 2020) (holding “Mr. Enos’s continued detention does not

22 constitute pretrial punishment” and “he has not shown that his continued detention violate s

23 his due process right to be free from deliberate indifference to his medical needs”).

24

CONCLUSION

25

For the above reasons, Defendants respectfully request that the Court grant their

26 motion and dismiss the Complaint and Petition.

27

28

17

Case 2:20-cv-00901-DJH-DMF Document 48 Filed 08/11/20 Page 18 of 19

1

RESPECTFULLY SUBMITTED this 11th day of August, 2020.

2

MICHAEL BAILEY

United States Attorney

3

District of Arizona

4

s/William C. Staes

WILLIAM C. STAES

5

Assistant United States Attorney

Attorneys for the Federal Defendants-Respondents 6

7

STRUCK LOVE BOJANOWSKI & ACEDO, PLC

8

s/Daniel P. Struck (with permission)

Daniel P. Struck

9

Rachel Love

Nicholas D. Acedo

10

Jacob B. Lee

Attorneys for Defendant-Respondent Kris Kline

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Case 2:20-cv-00901-DJH-DMF Document 48 Filed 08/11/20 Page 19 of 19

1

CERTIFICATE OF SERVICE

2 I hereby certify that on August 11, 2020, I electronically transmitted the attached

3 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a

4 Notice of Electronic Filing to the following CM/ECF registrants:

5

Benjamin C. Calleros bcalleros@perkinscoie.com

6 Emma A. Andersson

eandersson@aclu.org

Jean-Jacques Cabou

jcabou@perkinscoie.com

7 Margo R. Casselman mcasselman@perkinscoie.com

Mathew R. Koerner

mkoerner@perkinscoie.com

8 Daniel P. Struck

DStruck@strucklove.com

Rachel Love

RLove@strucklove.com

9 Nicholas D. Acedo

NAcedo@strucklove.com

Jacob B. Lee

JLee@strucklove.com

10

11 /s/Irene Millsaps
12 U.S. Attorney’s Office

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Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 1 of 27
EXHIBIT A
EXHIBIT A

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 2 of 27

1

SUPPLEMENTAL DECLARATION OF WARDEN K. KLINE

2

I, K. Kline, make the following Declaration:

3

1. I am over the age of 18 years and competent to testify to the matters set forth

4 in this Declaration. I make this Declaration in support of Defendants’ Opposition to

5 Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction based on

6 my own personal knowledge and my review of the relevant documents as maintained by

7 CoreCivic in the usual course of business.

8

2. I am currently the Warden of CoreCivic’s Central Arizona Florence

9 Correctional Complex (“CAFCC”), located in Florence, Arizona, a position I have held

10 since August 2016.1 Prior to that, I was the Warden of CoreCivic’s Kit Carson Correctional

11 Center, located in Burlington, Colorado, for two years.

12

3. I have been in corrections for over 20 years, having started as a Correctional

13 Officer at CoreCivic’s Bay Correctional Facility, located Panama City, Florida, in February

14 2000.

15

4. All documents attached to this Declaration are true and accurate copies of

16 documents generated and/or maintained in the normal course of CAFCC’s business

17 operations.

18

CAFCC Design and Population

19

5. CAFCC is owned and operated by CoreCivic, Inc. (“CoreCivic”). CAFCC

20 was formerly two facilities—Central Arizona Detention Center (“CADC”) and Florence

21 Correctional Center (“FCC”)—both owned and operated by CoreCivic, and located in close

22 proximity to each other in Florence, Arizona. The two facilities were administratively

23 combined into CAFCC in 2017. Internally, the former CADC is referred to as CAFCC East,

24 and the former FCC is referred to as CAFCC West.

25

26

1 CAFCC was formerly two facilities—Central Arizona Detention Center (“CADC”)

and Florence Correctional Center (“FCC”)—both owned and operated by CoreCivic. The 27 two facilities were administratively combined into CAFCC in 2017. I was the Warden of

28 FCC when the facilities were combined.

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 3 of 27

1

6. CoreCivic provides immigration and criminal detention services for U.S.

2 Immigration and Customs Enforcement (“ICE”), the United States Marshals Service

3 (“USMS”), and the City of Mesa (“Mesa”) pursuant to detention service contracts with

4 those entities. CoreCivic provides healthcare services to CAFCC’s detainee population.

5

7. Neither I, as Warden of CAFCC, nor CoreCivic, determine which USMS

6 detainees are assigned to CAFCC, or for how long. Rather, such assignments, as well as

7 transfer and release determinations, are made by USMS and/or the federal courts.

8

8. CAFCC has a total design capacity of 5,003 detainees, with capacity for 3,110

9 USMS detainees. CAFCC operates 15 housing units of varying layouts and designs,

10 including traditional two-person cells and larger cells housing 14-16 detainees.

11

9. CAFCC operates two receiving and discharge units (one in East, and one in

12 West), eight medical units (four medical departments (one in East and three in West), three

13 satellite medical units (two in East and one in West), and one infirmary (West)), 15 laundry

14 facilities (one in each housing unit, with two commercial washers and two commercial

15 dryers in each one), four kitchens (three food production kitchens (one in East and two in

16 West) and one dish room kitchen (West)), two commissaries (one in East, one in West), one

17 chapel (located in East, with chapel services in West conducted in multi-purpose rooms),2

18 three libraries (two in East, one in West), 14 recreation yards (five in East, nine in West),

19 social and legal visitation facilities, warehouse, and maintenance department.

20

10. The medical units can house up to 29 detainees—17 in the medical units and

21 12 in the infirmary. CAFCC has five negative pressure rooms, none of which are currently

22 in use, and has access to two additional negative pressure rooms at CoreCivic’s Saguaro

23 Correctional Center, located in Eloy, Arizona, as overflow units.

24

11. USMS, ICE, and Mesa detainees (as well as male and female detainees) are

25 housed separately and do not intermix with other populations in housing, programming,

26

27

2 Religious services in groups are not currently being held due to social distancing

28 rules.

2

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 4 of 27

1 recreation, meal services, facility movement, etc., except in special circumstances. For

2 example, detainees of two or more jurisdictions may be housed in the Restrictive Housing

3 Unit (“RHU”) at the same time, but they are not housed in the same cells, and

4 movement/activity is restricted such that detainees from the different jurisdictions do not

5 have contact with or access to each other. Additionally, detainees of two or more

6 jurisdictions who have demonstrated symptoms of COVID-19 may be housed in one of

7 CAFCC’s quarantine units, but again, movement/activity is restricted such that detainees

8 from the different jurisdictions do not have contact with or access to each other.

9

12. As of August 7, 2020, CAFCC was operating at 68% of its design capacity,

10 with 3,380 total detainees and 3,222 USMS detainees.

11

13. New intakes have decreased since March 19, 2020 from an average of

12 approximately 100 detainees per day to approximately 5-10 detainees per day.

13

COVID-19 Test Data

14

14. Prior to August 4, 2020, CAFCC policy was to test symptomatic detainees for

15 COVID-19 as determined necessary by a licensed independent medical provider based on

16 a particular detainee’s symptoms. Since August 4, 2020, CAFCC now also tests detainees

17 who have been in close contact with a confirmed COVID-19-positive individual, consistent

18 with recent changes to CDC guidelines. See https://www.cdc.gov/coronavirus/2019-ncov/

19 community/correction-detention/guidance-correctional-detention.html, last accessed

20 August 7, 2020. “Close contact” is defined as being within six feet of a COVID-19-positive

21 individual for 15 minutes or more.

22

15. As of August 7, 2020, there were only 17 detainees at CAFCC who are

23 currently positive for COVID-19. Since the first positive detainee was identified on May 1,

24 2020 through August 7, 2020, a total of 323 detainees have tested positive for COVID-19

25 at CAFCC, 71 detainees have tested negative, and 28 were pending results.

26

16. Prior to May 13, 2020, no COVID-19-positive detainees at CAFCC had

27 contracted the virus from the general population—all cases of COVID-19 at CAFCC came

28

3

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 5 of 27

1 from new intakes, and were identified during the 14-day quarantine period all new intakes

2 are subject to when they arrive at CAFCC, as described more fully below.

3

17. On May 12, 2020, a general population detainee in Golf Delta Pod presented

4 with a fever, and was taken to J Pod to quarantine, where he was tested for COVID-19. His

5 test came back positive on May 13, 2020, at which point Golf Delta Pod was placed in

6 quarantine status.

7

18. As of August 7, 2020, 11 CAFCC detainees have been hospitalized due to

8 COVID-19; no detainees are currently in the hospital. Unfortunately, one detainee died due

9 to COVID-19 on July 30, 2020.

10

19. As of August 7, 2020, CAFCC employed 880 staff members, only 11 of

11 whom are currently positive for COVID-19. A total of 146 staff members have tested

12 positive, but 135 have recovered and are back to work.

13

CAFCC/CoreCivic COVID-19 Response Coordination

14

20. CoreCivic recognizes the unique and exceptional nature of the current

15 COVID-19 pandemic, and takes seriously its responsibility to protect the safety and security

16 of the detainees in its facilities, its staff, its contractors’ employees, its governmental

17 partners’ employees, and the public in general.

18

21. CoreCivic’s Facility Support Center (“FSC”), located in Brentwood,

19 Tennessee, has developed company-wide protocols in response to COVID-19, which are

20 implemented at the facility level based on each facility’s unique detainee population,

21 physical plant, and safety and security concerns. FSC is providing ongoing guidance and

22 instruction to its facilities, consistent with recommendations of the Centers for Disease

23 Control and Prevention (“CDC”) and CoreCivic’s governmental partners, as well as state

24 and local health authorities where its facilities are located. As additional recommendations

25 are made in consideration of localized health conditions, practices to prevent the spread of

26 COVID-19 at CAFCC have evolved, with changes occurring sometimes on a daily basis.

27

22. FSC has also activated its Emergency Operations Center, which allows for

28 effective communication and guidance to all CoreCivic facilities in a timely manner as to

4

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 6 of 27

1 daily developments regarding COVID-19 information, CDC guidance, and developing

2 operational modifications and enhancements.

3

23. Each day and based upon need, CoreCivic facility administrators with a first

4 COVID-19 positive test or significant change in circumstances participate in a conference

5 call with CoreCivic’s Emergency Operations Center to review current and new protocols,

6 receive CDC updates, and discuss additional concerns and requests. CoreCivic facility

7 leaders also participate in a call three times a week to discuss new protocols, receive CDC

8 updates, and discuss additional concerns and requests related to COVID-19 response.

9 Further, all CoreCivic facility administrators have access to an intranet SharePoint site

10 containing all company-wide information, communications, and updated protocols related

11 to COVID-19.

12

24. CAFCC has its own daily briefing with facility leadership and designated

13 supervisory staff to discuss daily issues and assign tasks associated with COVID-19

14 operational responses. Facility leadership is tasked with speaking to staff and detainees

15 about precaution requirements; encouraging staff and detainees to seek medical care if they

16 feel ill or show signs of illness; monitoring staff and detainees for signs of illness; engaging

17 in ongoing efforts with staff and detainees to promote cleanliness and social distancing;

18 verifying ample supplies of appropriate materials; and conducting sanitation inspections on

19 a daily basis in their delegated areas of responsibility. CAFCC’s COVID-19 Sanitation

20 Schedule and Protocols further guide daily responsibilities to ensure the facility is properly

21 and regularly cleaned and sanitized.

22

25. The facility has developed a staffing contingency plan in the event there are

23 increased staff absences due to the virus. In addition, certain posts have been collapsed as

24 detainee movement is restricted to prevent COVID-19 exposure and these staff are

25 reassigned to accommodate staffing needs in other operational areas.

26

26. I am in continual contact with USMS, ICE, and Mesa officials in order to

27 keep CAFCC’s government partners updated on all protocols and procedures in place at the

28

5

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 7 of 27

1 facility, to report on the status of facility operations and detainee health statistics, and to

2 address any concerns or directives they may have regarding CAFCC operations.

3

27. I am also in frequent contact with the Pinal County Public Health Services

4 District as well as other local government bodies and government officials such as the

5 Florence City Manager, local law enforcement, and local emergency medical services to

6 provide status updates as to infection rates, ensure that any applicable state and local

7 protocols are met, and discuss emergency procedures and plans of action.

8

28. CoreCivic/CAFCC has security-sensitive and confidential emergency plans

9 for Medical Emergency (including specifically COVID-19) and Pandemic Flu

10 Preparedness, as part of its Emergency Response Policy—policies in effect long before

11 COVID-19. The disclosure of the specific details of those plans poses a legitimate safety,

12 security, and operations risk should they be communicated to the detainee population or the

13 public. Furthermore, CAFCC already has policies in place to manage and treat potential

14 outbreaks of communicable diseases, such as influenza or tuberculosis.

15

29. In February 2020, CoreCivic issued an initial Pandemic Coronavirus Plan that

16 has been continually updated as more has become known about the virus and as guidance

17 is provided by the CDC.

18

30. CoreCivic has also initiated a COVID-19 Medical Emergency Plan that has

19 been implemented at all CoreCivic facilities, including CAFCC.

20

Cohort/Quarantine Strategies

21

31. CAFCC has developed and is constantly reviewing its contingency plans for

22 confirmed or presumptive COVID-19-positive detainees to promote containment and

23 prevent further exposure and infection.

24

32. CAFCC has the ability to adjust housing unit use and dedicate particular

25 housing pods for cohort or quarantine purposes in order to limit exposure to other detainees

26 or staff.

27

33. Starting on March 19, 2020, CAFCC began cohorting new arrivals and

28 detainees returning from outside transports based on their intake/facility return date.

6

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 8 of 27

1

34. For example, all detainees arriving at the facility on March 19, 2020 would

2 be assigned to a cohort with an expected release date of April 2, 2020, assuming no

3 detainees from that cohort showed symptoms of COVID-19 or tested positive for the virus

4 during that time. All detainees arriving at the facility on March 20, 2020 would be assigned

5 to a cohort with an expected release date of April 3, 2020, and so on.

6

35. If a detainee from the cohort displays symptoms of COVID-19, such as fever

7 over 101 degrees, coughing, body aches, or shortness of breath, or is confirmed to be

8 positive for COVID-19, the cohort’s release date is extended to 14 days from the last such

9 instance. There are at least 14 active cohort groups at any given time.

10

36. Prior to May 1, 2020, most new arrivals were cohorted in Lima Unit, which

11 consists of eight pods of two-man cells. Since May 1, 2020, most new arrivals are cohorted

12 in either Delta Unit, which also consists of eight pods of two-man cells, or Juliet Unit, which

13 consists of eight pods of two-man cells.3

14

37. These cohorted detainees are housed individually as much as possible. To the

15 extent it is necessary to house them with a cellmate, detainees are housed with another

16 detainee from their cohort. Signs are posted on each cell indicating the cohort group number

17 and anticipated end date.

18

38. Although a particular pod may house detainees in different cohort groups, the

19 detainees are in a lockdown status in which they are only allowed be out of their cells with

20 other detainees from their own cohort group. This is done to permit cohorted detainees to

21 have dayroom time with other detainees while preventing detainees from different cohorts

22 from intermixing and potentially cross-contaminating.

23

39. The dayroom and other common areas are sanitized between groups,

24 following CAFCC’s COVID-19 Sanitation Schedule and Protocols. Specifically, this

25 requires that: HDQC2, a quaternary disinfectant that is EPA-registered for use against

26 3 Some detainees, such as females, detainees who require protective custody, or
27 material witnesses are not able to be housed in Lima, Delta, or Juliet Unit, but were housed
28 in units suitable to their particular needs following the general guidelines outlined here.

7

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 9 of 27

1 COVID-19,4 be sprayed on showers, tables, door handles, knobs, handrails, push buttons,

2 intercoms, and workout equipment, and that phones and kiosks be wiped with a towel that

3 has been sprayed with HDQC2.

4

40. Once the cohort has completed their 14-day period, they are assigned to a

5 general population unit as appropriate in light of their custody status and other classification

6 criteria.

7

41. When a detainee who is not in a cohorted status displays symptoms of

8 COVID-19, such as fever over 101 degrees, coughing, body aches, or shortness of breath,

9 they are removed from their pod and quarantined in Lima Unit pending medical assessment

10 and testing for COVID-19 as deemed necessary by medical staff.5 The detainee’s pod is

11 then placed on quarantine status for a period of 14 days.

12

42. To ensure that the detainee does not contaminate others while being moved

13 to Lima Unit, they are moved through the facility in face mask, goggles, and gloves, and

14 the hallways are shut down and cleared of all other staff and inmates while the movement

15 is taking place.

16

43. If the detainee tests positive for COVID-19, they are kept in Lima Unit until

17 they have been symptom-free for at least 72 hours, at which point they are moved to a

18 recovery pod for a further 14-day cohort period before returning them to a general

19 population unit. If the detainee tests negative for COVID-19, they are kept in quarantine for

20 14 days before being returned to a general population pod.

21

44. Detainees in Lima Unit are generally housed individually, but may be housed

22 with a cellmate if both detainees are confirmed positive or confirmed negative for COVID-

23 19.

24

25

4 See https://www.spartanchemical.com/products/product/470202/#top and https://

26

www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2#filter_col1, search for “1839-169,” both last accessed August 7, 2020.

27

5 Since August 4, 2020, close contacts of confirmed COVID-19-positive detainees

28 are tested for COVID-19 as well.

8

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1

45. I am aware that detainees Maria Lucero-Gonzalez and Claudia Romero-

2 Lorenzo claim they were exposed to other detainees who showed symptoms of COVID-19

3 but were not removed from their pods. This is false. Detainees are responsible for reporting

4 their symptoms to staff so they can be immediately assessed and quarantined if necessary.

5

46. I am also aware that attorney Christina Woehr claims an unidentified male

6 detainee in Lima Unit told her his pod was released from quarantine “seemingly by mistake”

7 sometime during the week of April 27, 2020 (Ms. Woehr, who signed her Declaration on

8 May 7, 2020, stated only that this detainee told her this incident occurred sometime the

9 week before). This is false. Lima Unit went from cohort status to quarantine status on April

10 27, 2020. As a practical matter, however, the daily lives of detainees in Lima Unit were

11 unaffected as a result of the change in status, as they were still permitted to mingle in their

12 assigned dayrooms. No detainees were moved from Lima Unit to a general population pod

13 and then moved back several hours later at any time during the week of April 27, 2020, or

14 at any time since then.

15

47. All staff entering a cohort or quarantine area must wear full personal

16 protective equipment (“PPE”), including a full suit/coveralls, rubber boots, gloves, N-95

17 respirator, and goggles/face shield.

18

48. Upon exiting a cohort or quarantine area, staff must stop at the designated

19 decontamination zone and remove their PPE and any contaminated materials. Boots,

20 goggles/face shields, and any other PPE that can be cleaned and sanitized is sprayed with

21 HDQC2. Any PPE that cannot be cleaned and sanitized is disposed of in a red biohazard

22 bag. Staff must then wash their hands thoroughly; a shower is also available if needed. Staff

23 then exit the decontamination zone through a pre-designated route to minimize the transfer

24 of any contaminants.

25

49. All trash from the cohort and quarantine housing areas is treated as medical

26 waste/biohazardous material.

27

50. Cohort and quarantine housing are not punitive measures, and do not subject

28 detainees to conditions of confinement similar to heightened restrictions placed on RHU

9

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 11 of 27

1 detainees. Rather, detainees are provided with the same activities and opportunities as they

2 would receive in a general population pod, including access to recreation, dayroom time,

3 programming, commissary, legal visitation (including virtual legal visits when possible),

4 video court appearances, telephone calls, detainee mail operations, legal research access via

5 housing pod kiosks, library access via request/delivery from the librarian, and legal copy

6 requests via the facility librarian, subject to restricted movement protocols.

7

51. Detainees in cohort status receive 7-day and 14-day medical assessments,

8 unless they report and/or display symptoms of COVID-19, in which case they are evaluated

9 by medical staff immediately. In between those assessments, cohorted detainees with

10 medical issues have access to medical through the use of the sick call system by filling out

11 a Sick Call Request form and depositing it in the drop box, where it is checked daily and

12 triaged by facility nursing staff. Detainees in quarantine status receive daily medical

13 assessments. Detainees not in either a cohort or quarantine have access to medical through

14 the use of the sick call system as well. Detention and unit staff are also available 24 hours

15 a day to all detainees to report any emergent medical needs.

16

52. On or about March 18, 2020, CAFCC Health Services Administrator

17 (“HSA”) K. Jaramillo, in consultation with Senior Physician John Osteen, M.D., created a

18 list of 67 detainees who are at higher risk for severe illness if they become infected with

19 COVID-19 based on CDC guidelines. See https://www.cdc.gov/coronavirus/2019-ncov/

20 need-extra-precautions/people-at-higher-risk.html, last accessed August 7, 2020. That list

21 is updated regularly as new detainees are booked into CAFCC and others are transferred or

22 released.

23

53. On or about April 7, 2020, CAFCC initiated a High-Risk Detainee Plan for

24 COVID-19 that outlines operational strategies to identify, monitor, and care for these

25 higher-risk detainees.

26

54. A copy of the higher-risk list is provided to the Chief of Unit Management to

27 ensure continued monitoring of the higher-risk detainees and prompt treatment if they are

28 exposed or potentially exposed to COVID-19.

10

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1

55. CAFCC does not cohort detainees at higher risk of severe illness, however,

2 to avoid inadvertently exposing the more vulnerable detainees to COVID-19.

3

56. Detainees on the higher-risk list continue to receive regular medical care for

4 their underlying medical conditions.

5

57. All detainees are regularly advised via postings throughout the facility and

6 regular Town Hall Meetings, including written Town Hall Meeting Records posted in the

7 housing units, to let staff know immediately if they have fever, chest congestion, difficulty

8 breathing, or other symptoms of COVID-19. All unit and security staff have also been

9 instructed on COVID-19 symptoms and to contact medical personnel immediately if such

10 symptoms are reported or observed.

11

58. Detention staff are also trained in the normal course of operation to administer

12 emergency first aid. Medical staff provide support around the clock through medical

13 providers available on-site and on-call.

14

59. There are no vaccines for COVID-19. All detainees who test positive for

15 COVID-19, or are awaiting test results, are treated according to existing clinical criteria

16 with acetaminophen, fluids, and rest, unless a higher level of care requiring hospitalization

17 is indicated. If hospitalization is required, CAFCC has agreements with several area

18 hospitals, including but not limited to Mountain Vista Medical Center in Florence, Banner

19 Ironwood Hospital Medical Center in Queen Creek, Mercy Gilbert Medical Center in

20 Gilbert, and St. Joseph’s Hospital in Phoenix.

21

Efforts to Mitigate Risk of Introduction/Spread of COVID-19 at CAFCC

22

60. Consistent with CDC Interim Guidance on Management of [COVID-19] in

23 Correctional and Detention Facilities (“CDC Interim Guidance”),6 USMS guidelines, and

24 industry practices, CAFCC has taken ample and appropriate steps to reduce COVID-19

25 exposure and infection for the detainee population and staff.

26

27

6 See https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention

28 /guidance-correctional-detention.html, last accessed August 7, 2020.

11

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1

61. These steps have been highly effective. As of August 7, 2020, CAFCC has

2 only had 323 COVID-19-positive detainees, only 17of which are currently positive, despite

3 having an average daily population of 3,375 detainees since March 19, 2020.

4

62. CAFCC suspended social visitation on March 12, 2020 to protect CAFCC

5 from outside COVID-19 exposure. Volunteer entry was also suspended for the same reason.

6

63. Legal visitation has not been suspended, but non-contact visitation, including

7 through the use of telephones or the facility video teleconferencing (“VTC”) system is

8 encouraged. The VTC system is available from 7:00 a.m. to 9:00 p.m. Monday-Friday. No

9 firm time limits are placed on detainees using the VTC, but detainees are encouraged to be

10 efficient with their use of it to ensure that all detainees who want/need to use it are able to

11 do so, given that CAFCC houses detainees from several jurisdictions (who do not intermix),

12 of varying custody levels (who do not intermix), of both sexes (who do not intermix), and

13 who may be under cohort or quarantine status (and do not intermix).

14

64. If an attorney requests a contact visit, the visitation area is sanitized with

15 HDQC2 before and after the visit, including, but not limited to, by wiping down chairs,

16 tables, telephones, and other surfaces and equipment. Very few contact legal visits have

17 occurred since these precautions went into effect, however, as most attorneys prefer to use

18 the VTC system.

19

65. Detainees may also call their attorneys from their housing pods (the calls are

20 not monitored/recorded if the detainee has previously designated the recipient as an

21 attorney) including placing collect calls to their attorneys. If the attorneys are already on the

22 facility pro bono counsel legal call list, the calls are free of charge and not

23 monitored/recorded. Although the in-pod telephones are fixed in place and cannot be

24 moved, detainees have ample space in the dayroom to ensure social distancing between

25 those on the telephone and those waiting to use the telephone, and they can wear masks

26 while on the telephone or waiting to use the telephone to provide additional protection as

27 well.

28

12

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1

66. In addition to attorney-client visits, the VTC system is used for court

2 appearances, including probation interviews, initial appearances, and other court hearings.

3 CAFCC facilitates approximately 650-700 such uses each week.

4

67. CAFCC does not currently transport detainees for in-person court hearings,

5 as the District of Arizona suspended in-person hearings as of March 20, 2020. Similarly,

6 pursuant to USMS directives, CAFCC stopped all transports for non-urgent outside medical

7 consults as of April 2, 2020 (but continues to make emergency transports as needed).

8

68. All persons entering CAFCC, whether they are a CoreCivic employee,

9 contractor, USMS/ICE/Mesa employee, or attorney, are subject to screening as a pre-

10 requisite to entrance to the facility.

11

69. Signs at the front gate advise all persons entering CAFCC that they must wear

12 a mask to enter. If they do not have a mask, they are directed to maintain social distancing

13 and obtain and immediately put on a mask once they are in the lobby.

14

70. Signs on the door to the lobby again advise all persons entering CAFCC that

15 they must wear a mask to enter. If they do not have a mask, they are directed to maintain

16 social distancing and obtain and immediately put on a mask once they are in the lobby.

17

71. Signs in the lobby remind all persons entering the facility to wear their masks

18 to protect themselves and others.

19

72. Consistent with CDC Interim Guidance, the entry screening consists of a

20 series of questions, including whether the person has returned from international travel, had

21 close contact with anyone diagnosed with COVID-19, or returned from military deployment

22 related to COVID-19 response in the past 14 days, as well as whether the person has

23 experienced any COVID-19-related symptoms in the past 24 hours, as well as a temperature

24 check with a no-touch thermometer. Staff administering the screening wear full PPE,

25 including coveralls, gloves, N-95 respirator, and face shield, and social distancing is also

26 employed during the entrance screening process.

27

28

13

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1

73. If any person answers affirmatively to the screening questions, or if the person

2 exhibits symptoms of COVID-19 as defined by CDC guidelines, including but not limited

3 to a fever in excess of 100.4 degrees, they are denied entry to the facility.

4

74. If a CoreCivic employee is denied entry, the employee is sent home and

5 directed to see a healthcare provider for further screening. Those that have been denied

6 entrance must obtain clearance from their medical provider and provide documentation

7 before they will be admitted into the facility. Likewise, if any staff member experiences

8 symptoms at work, that individual is immediately sent home and directed to see a healthcare

9 provider as soon as possible.

10

75. When an employee has been denied entry, or reports a confirmed positive test

11 or close contact with a confirmed positive individual, CAFCC performs a contact tracing

12 analysis, using the facility surveillance system to document each contact the infected or

13 potentially infected person had during the employee’s last 48 hours at the facility. This

14 allows CAFCC to identify any other employees or detainees who may require additional

15 surveillance, precautions, or testing in order to minimize the spread of COVID-19 within

16 the facility. CAFCC performs a similar contact tracing analysis for any detainees who are

17 confirmed positive for COVID-19.

18

76. Following entrance health screening, persons permitted to access the facility

19 are still required to complete security screening. Only one person may enter security

20 screening at a time. Generally, the security screening resembles most airport security

21 screenings, where items carried by, or to be removed from, a person screened are placed on

22 bins and sent through a scanner. At CAFCC, officers that manage the scanners disinfect the

23 bins after each use. The security screening officers wear gloves such that only the owners

24 of the items screened touch the property with ungloved hands.

25

77. The housing units at CAFCC are largely self-contained, such that there is little

26 detainee traffic in the hallways even under normal circumstances. Nevertheless, detainee

27 movement within the facility has been significantly limited to reduce COVID-19 exposure.

28 Moreover, detainees are required to wear paper surgical masks any time they leave their

14

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 16 of 27

1 pod, especially when they are going to an area where social distancing is more difficult,

2 such as the medical unit, a case manager’s office, or a legal visit.

3

78. The transportation of detainees to off-site medical providers has been limited

4 to only essential and/or emergency medical services. In the event it is necessary to transport

5 a detainee to an offsite hospital or clinic, staff are required to screen the detainee for

6 COVID-19 by checking the detainee’s temperature and noting it on the transfer of custody

7 receipt or transport orders. If the temperature is 100 degrees or above, the detainee is given

8 a paper mask and escorted to medical immediately. A thermometer and 25 paper masks are

9 kept in the Transportation Senior Correctional Officer’s Office for this purpose. Staff are

10 required to wear an N-95 mask.

11

79. Once the detainee returns to the facility, they are screened at intake in

12 accordance with CDC Interim Guidance and cohorted for 14 days. All CoreCivic transport

13 vehicles are disinfected completely both before and after each transport.

14

80. As in the rest of the country, one challenge at CAFCC has been to gauge the

15 ordering and availability of PPE and sanitation products to ensure the facility is prepared,

16 while understanding the possibility that such supplies may become unavailable in the future

17 due to heightened demand. For this reason, CAFCC began increasing its stock of PPE and

18 sanitation supplies in February.

19

81. As of August 7, 2020, CAFCC had the following PPE items in stock:

20

• 575 Eye Protection

21

• 400 Coveralls

22

• 2,200 N-95 Masks

23

• 24,007 paper surgical masks

24

• 940 Boxes Gloves (50 Count)

25

82. CAFCC personnel have long been issued protective gloves as part of

26 universal precautions to reduce the risk of exposure to or transmission of any pathogen. In

27 the normal course of operations, detention staff are required to wear gloves when

28

15

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 17 of 27

1 conducting searches of detainees, their cells, and their personal property. These normal

2 protocols did not change with onset of COVID-19.

3

83. Like the nation at large, both CoreCivic and CAFCC are continually adjusting

4 to the rapid changes brought about by the COVID-19 pandemic, including the adaptation

5 of practices and policies in accordance with guidance from health experts, particularly the

6 CDC, to ensure the health and safety of detainees, staff, and the community.

7

84. One area of recent change in guidance from national health experts pertains

8 to the utilization of face masks to decrease COVID-19 transmission. Initially, the CDC did

9 not recommend face masks for individuals who are well. As guidance from the CDC has

10 evolved in this regard, so have CAFCC operations.

11

85. When CAFCC began cohorting detainees on March 19, 2020, the use of

12 masks by staff working outside of the protective cohorts was optional, but such use was

13 required if working in the cohort or quarantine pods.

14

86. Since April 13, 2020, CAFCC staff have been permitted to wear a face mask

15 while on duty. Since April 28, 2020, CAFCC staff have been required to wear a face mask

16 while on duty. Staff are instructed that the mask should cover both the mouth and nose and

17 be adjusted by the wearer as frequently as needed to ensure the best coverage of the mouth

18 and nose. Staff have also been instructed on re-use and cleaning/laundering of paper and

19 cloth masks per CDC guidelines.

20

87. CAFCC has also offered all detainees paper and cloth face masks, without

21 cost to them. Paper masks were first offered to detainees on April 13, 2020, and again on

22 May 11, 2020. Cloth masks were offered to all detainees on May 21, 2020. Detainees were

23 not required to return or dispose of their paper masks in order to receive cloth masks.

24

88. On April 13, 2020, when CAFCC first offered paper face masks to detainees,

25 CAFCC’s supply of such masks was limited. In order to effectively manage this resource,

26 detainees were instructed to take care of the masks and make them last. At any time,

27 however, if a detainee’s mask became soiled, torn, or otherwise unusable, they could request

28 a new mask, and it would be provided to them.

16

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 18 of 27

1

89. Detainees are not required to wear their masks inside their housing units if

2 they do not wish to, but they are encouraged to do so and have been educated as to the

3 reasons for such use, as detailed below. They are, however, required to wear their masks

4 any time they are outside their housing units, including but not limited to while in the

5 hallways, at kitchen assignments, in staff offices, in the medical unit, or in any other area

6 where social distancing cannot be accomplished.

7

90. Although the use of face masks within the housing units is encouraged

8 repeatedly and often, the decision was made not to enforce 100% mask use during waking

9 hours for several reasons. First, there would be detainees who would push back, requiring

10 the use of graduated disciplinary measures, up to and including placement in the RHU.

11 Second, and related to the first, filling the RHU with detainees who refuse to wear masks

12 would (1) take away beds that could be used to cohort or quarantine detainees, (2) take away

13 beds that are needed for other, more serious disciplinary infractions, and (3) eventually

14 result in detainees having to be double-celled in a situation in which they are in their cells

15 for up to 23 hours per day, during which time they would be unable to practice proper social

16 distancing.

17

91. Gloves and masks are provided to detainees who participate in the Voluntary

18 Work Program (“VWP”) as pod porters. Similarly, detainees who participate in the VWP

19 as kitchen workers are given masks, gloves, and other protective equipment as required by

20 applicable guidelines, such as hair nets. Detainees who participate as commissary workers

21 and in-pod laundry workers are also provided masks.

22

Staff and Detainee COVID-19 Education

23

92. CAFCC has a long track record of training its staff with respect to potential

24 exposure to pathogens, disease spread prevention, emergency response, and adherence to

25 universal precautions.

26

93. In accordance with CDC Interim Guidance, educational materials have been

27 posted throughout the facility and in all housing units regarding COVID-19 symptoms, what

28

17

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 19 of 27

1 to do if you are sick, hand-washing, sanitation and cleanliness, mask use, and steps to reduce

2 the risk of exposure.

3

94. Communication is key. Unit staff hold Town Hall Meetings every time there

4 is a change in procedure, such as when social visitation was cancelled, when the sanitization

5 schedule was updated, when mask procedures were updated, etc. Because guidelines and

6 recommendations with regard to COVID-19 are constantly evolving, this results in Town

7 Hall Meetings being conducted once or twice per week on average. Town Hall Meeting

8 Records are posted in the housing units to remind detainees of the topics discussed, and

9 record both the topics presented by unit staff as well as any concerns expressed by detainees

10 during the meeting and written responses to those concerns. I also prepared a Notice to the

11 Population regarding the facility’s COVID-19-related efforts and directed that it be posted

12 in the housing units.

13

95. Exemplar Town Hall Meeting Records for June and July 2020 demonstrate

14 that detainees continue to be educated regarding COVID-19 prevention and response

15 strategies. For example, detainees were educated (in English and Spanish) as follows:

16

6/22/20—Practice good hygiene habits: Wash your hands as often as you can

17

for at least 20 seconds. Avoid touching your eyes, nose, mouth as much

18

as possible. Avoid contact with other individuals. No hugs or

19

handshakes, wave hi instead. Wipe down surfaces and other areas that

20

are frequently touched throughout the day (Doors, Phones,

21

microwaves, etc.)

22

6/22/20—Facility changes due to COVID-19 virus: Masks issued to all

23

inmates. Staff are being questioned and temp checked each day upon

24

entrance to the facility to prevent any spread of covid-19. There are

25

currently over 40 confirmed cases of covid-19 at CAFCC. Most of

26

which have recovered and returned to general population. Wear your

27

mask anytime you exit your pod for any reason. In addition wear your

28

18

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 20 of 27

1

mask in the pod when coming into close contact with staff or other

2

inmates. Masks must be worn to receive commissary.

3

6/22/20—Things you can do to protect yourself from covid-19: Sleep feet to

4

feet with you[r] cell mate, not head to head. Wear your mask at all

5

times even when you are inside your cell. Clean commonly touched

6

items as frequently as possible and wash your hands as often as

7

possible. Try to avoid touching your mouth, nose and eyes. Please

8

check your board posting for sign[s] and symptoms and how to protect

9

yourself. Practice social distancing at all time[s].

10

6/22/20—Quarantine procedure: If medical suspects that someone may have

11

covid-19 that individual will be removed from the pod [and] placed on

12

isolation in medical. The remaining inmates in the pod will be placed

13

on cell restriction until the results come back. The pod will [be] offered

14

a dayroom time schedule, however rec will be suspended until

15

quarantine status is lifted. If the covid test comes back negative the

16

quarantine status will be lifted immediately. If the test is positive then

17

the pod will remain on quarantine status for 14 days. At the end of each

18

dayroom time. Spray down all commonly touched surfaces and let air-

19

dry for 10 minutes. Laundry will be conducted daily by 1 porter per

20

pod. Feed will be done by staff in cell on Styrofoam trays.

21

7/13/20—Masks: If you need a new mask or yours is defective please contact

22

unit staff to get a new one. We are not going to give masks so you can

23

stock pile them.

24 (Exemplar Town Hall Meeting Records for Unit 11 for June 22, 2020 and July 31, 2020 at

25 Attachment 1.)

26

96. Additionally, if detainees have any questions or concerns about COVID-19,

27 they may always speak with detention and unit staff, who are trained to answer their

28 questions.

19

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1

97. Detainees are not required to forego social distancing recommendations in

2 order to attend Town Hall Meetings conducted by unit staff. To the contrary, unit staff

3 regularly have to direct detainees not to group up and to maintain social distancing—for

4 which there is plenty of room in the dayrooms—during the Town Hall Meetings.

5

Maintaining Social Distancing Among Staff and Detainees

6

98. Although it is challenging to always maintain six feet of physical distance in

7 a custodial setting, practices have been implemented at CAFCC to promote social

8 distancing.

9

99. The dayroom areas of CAFCC’s housing pods are large and allow ample

10 space for detainees to socially distance themselves from each other. This is especially true

11 where CAFCC’s total population is at 68% of its design capacity.

12

100. Detainees are regularly advised of the importance of social distancing during

13 Town Hall Meetings and everyday interactions with staff.

14

101. Programming has been reduced, but not eliminated, and is limited to groups

15 of less than 10 to comply with applicable guidelines and to allow six feet of social

16 distancing. Recreation is largely unchanged, as CAFCC’s 14 recreation yards already

17 allowed proper social distancing, except for the cohort groups, which are run one cohort at

18 a time to ensure the cohorts do not intermix.

19

102. Even before COVID-19, CAFCC used a satellite feeding procedure for meal

20 service in which meals are delivered to the housing units. Kitchen workers bring the food,

21 dishes, and other equipment to the pod. Kitchen workers wear masks, gloves, and hair nets

22 as needed, and the food is protected by sneeze guards. Workers deliver the trays through

23 the food port to detainees waiting in line in the pod. Detention officers in the pod monitor

24 the line and remind detainees to practice proper social distancing when they bunch up.

25 Detainees are permitted to eat their meals wherever they would like within the pod, such as

26 at the dayroom tables or in their cells, in order to further facilitate social distancing.

27

103. As with the masks, although social distancing is encouraged repeatedly and

28 often, the decision was made not to enforce 100% social distancing within the housing units

20

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 22 of 27

1 for several reasons. First, there would be detainees who would push back, requiring the use

2 of graduated disciplinary measures, up to and including placement in the RHU. Second, and

3 related to the first, filling the RHU with detainees who refuse to socially distance inside the

4 housing units would (1) take away beds that could be used to cohort or quarantine detainees,

5 (2) take away beds that are needed for other, more serious disciplinary infractions, and (3)

6 eventually result in detainees having to be double-celled in a situation in which they are in

7 their cells for up to 23 hours per day, during which time they would be unable to practice

8 proper social distancing.

9

Enhanced Sanitation Procedures

10

104. Consistent with CDC Interim Guidance, CAFCC has enhanced its already

11 robust sanitation practices in response to COVID-19.

12

105. In recognition of the potential future shortage of sanitation supplies, CAFCC

13 increased its inventory of cleaning chemicals and supplies beginning in February 2020. That

14 inventory is checked and restocked daily to maintain a sufficient supply on hand,

15 particularly if additional shortages occur in the public market.

16

106. CAFCC’s facility housekeeping plan was reviewed, updated and enhanced to

17 comply with CDC Interim Guidance. In particular, instructions were added pertaining to

18 the safe and recommended use of EPA-registered disinfectants, as well as appropriate use

19 of PPE in areas where the COVID-19 virus may be present.

20

107. During Town Hall meetings, detainees are instructed on how to safely sanitize

21 the common area surfaces that they may use during the day before and after use, such as

22 detainee telephones and kiosks.

23

108. Per CDC Interim Guidance, soap and water is still the most effective

24 mechanism to kill COVID-19. To that end, CAFCC gives each detainee two bars of soap

25 and a bottle of shampoo/body wash each week, and each housing unit has sufficient clean

26 running water and paper towels for the detainees who live there. If a detainee runs out of

27 either one before the next weekly distribution, all they have to do is ask for a replacement,

28 and it will be provided to them. A one-for-one exchange is only required for the

21

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 23 of 27

1 shampoo/body wash, which comes in a bottle, to prevent stockpiling by detainees of

2 materials that can be used in larger quantities to create safety and security risks to staff and

3 other detainees.

4

109. Any allegation that soap is not readily available is false. For the months of

5 June and July 2020, CAFCC issued an average of 27,200 bars of soap and 13,600 bottles of

6 shampoo/body wash free of charge to detainees each month.

7

110. For legitimate and corrections-industry-accepted safety and security reasons,

8 detainees are not provided with alcohol-based hand sanitizer, as it is inflammatory and can

9 be used to make homemade alcohol.

10

111. In the normal course of operation, CAFCC detainees are provided with

11 facility-approved cleaning and EPA-registered disinfecting supplies, such as HDQC2, to

12 clean and sanitize their immediate living areas on a daily basis. In response to COVID-19,

13 detainees are provided access to extra cleaning supplies and disinfectant chemicals to clean

14 their cells/immediate living areas.

15

112. Detainees are also provided HDQC2 to sanitize common-area equipment such

16 as tables, telephones, and kiosks before and after they use it.

17

113. Any allegation that detainees are not provided sufficient chemicals and other

18 supplies to clean and disinfect their living areas and high-touch common surfaces, or that

19 they are required to clean these areas using their personal soap and/or shampoo/body wash,

20 is false. Each pod has a cleaning closet with mops, brooms, towels, and cleaning and

21 disinfecting supplies such as HDQC2. Spray bottles containing these chemicals are

22 available for detainee use, and can be refilled as needed from five-gallon jugs kept in the

23 cleaning closets.

24

114. To ensure that regular cleaning and disinfecting measures are taking place,

25 the facility is divided into zones, and each zone is assigned a staff supervisor who is tasked

26 with tracking these activities on a log. This includes spraying showers, tables, door handles,

27 knobs, handrails, push buttons, intercoms, workout equipment, toilets, and shelves with

28 HDQC2, wiping telephones and kiosks with towels sprayed with HDQC2, and mopping

22

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 24 of 27

1 dayroom floors and hallways with HDQC2. Detainees performing these tasks are given

2 masks and gloves. Staff are also required to spray the staff restroom, door handles, and hard

3 surfaces in their offices with HDQC2, and to use a towel sprayed with HDQC2 to wipe

4 down telephones, keyboards, computers, and other equipment.

5

115. Additionally, each housing pod has 10-20 detainee pod porters who are

6 assigned to clean the common areas at different times during the day. These porters clean

7 showers, doors handles, floors, tables, microwaves, and anything else that gets touched on

8 a regular basis with HDQC2. As a result of these activities, high-touch hard surfaces in the

9 housing units are cleaned and disinfected at least once per hour.

10

116. In addition, employee time clocks have been adjusted so that employees are

11 no longer required to use their fingerprints to gain entry to the facility; only their

12 identification cards are required for entry and identification purposes. This measure

13 decreases solid surfaces touched by a volume of employees and thus decreases COVID-19

14 exposure risk.

15

117. All detainee mattresses are disinfected between uses by different individuals.

16

118. All library books delivered/retrieved from the housing pods are disinfected

17 (as is the library cart). The same goes for the carts used to deliver commissary items and

18 meals. Detainees have access to the law library via electronic kiosks in the housing pods.

19 Kiosks are disinfected frequently, and after each use.

20

119. Detainee laundry is cleaned in commercial washers and dryers at the required

21 temperatures according to American Correctional Association standards. Detainees place

22 their laundry in personal laundry bags that are collected and taken to the in-unit laundry

23 facilities. Detainees who work in the laundry facilities wear masks and gloves, and are

24 trained not to shake laundry out so as not to distribute germs into the air, and to ensure the

25 laundry is dried completely.

26

120. All medical personnel clean and disinfect their areas after seeing a detainee,

27 ensuring that all medical equipment is cleaned and disinfected, as well.

28

23

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 25 of 27

1

121. When cleaning an area where a confirmed COVID-19 individual was housed,

2 the person tasked with cleaning must wear full PPE, including an N-95 mask. CoreCivic

3 has provided Environmental Cleaning and Disinfection Recommendations as a guidance

4 tool when cleaning an area where a suspected or confirmed person with a case of COVID-

5 19 has been housed.

6

122. Any trash coming out of units where COVID-19 positive detainees are

7 cohorted or quarantined is treated as medical waste and disposed of accordingly.

8

123. CAFCC facility transport vehicles are also subject to enhanced cleaning and

9 disinfecting procedures to include use of antiviral cleaning agents both before and after each

10 transport. All transportation officers must practice appropriate hand-washing before and

11 after transport. Both transport staff and detainees wear masks during transport.

12

Restrictive Housing Units

13

124. The RHU houses detainees in administrative or disciplinary segregation. Each

14 cell has a solid cell door with a window and food port, double bunk, toilet, and sink.7

15

125. Detainees in the RHU are housed individually as much as possible, although

16 detainees are sometimes housed with cellmates even during the current pandemic to ensure

17 that adequate space remains available in the RHU for use as overflow cohort or quarantine

18 housing, or for RHU placements necessitated by serious disciplinary infractions. For safety

19 and security reasons, any detainees who must be housed with a cellmate are housed only

20 with detainees from the same jurisdiction and of similar custody levels.

21

126. Additionally, detainees assigned to the RHU typically remain in their cells for

22 up to 23 hours per day and have limited interaction with other detainees, which means they

23 are already in a semi-quarantined state.

24

25

7 At times, CAFCC has been required to triple-bunk detainees as an overflow

26 capacity measure. As such, some double-occupancy cells have a third bunk in them.

Because CAFCC is currently at only 68% of its design capacity, however, no detainees— 27 in the RHU or elsewhere in the facility—are triple-bunked currently, and many of them are

28 housed individually.

24

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 26 of 27

1

127. Detainees in the RHU are provided with at least one hour of recreation per

2 day, five days per week, and typically recreate alone in secure single-occupancy enclosures.

3 Detainees in the RHU receive all meals in their cells.

4

128. Staff perform checks of detainees in the RHU every 30 minutes on an

5 irregular schedule. Additionally, medical staff make rounds twice each day (i.e., once per

6 12-hour shift), and mental health staff make daily rounds. Detainees are also given the

7 opportunity to participate in weekly Segregation Committee meetings.

8

129. Like general population detainees, detainees in the RHU have been provided

9 with paper surgical masks.

10

130. All RHU detainees have been educated on appropriate hand-washing,

11 hygiene, and cleanliness per CDC Interim Guidance. In addition, detainee pod porters

12 assigned to this unit have undertaken enhanced cleaning practices as described above, and

13 conduct deep cleanings of the unit on a regular basis. RHU detainees are also provided with

14 cleaning/disinfecting supplies as described above to clean their cells.

15

Conditions of Confinement in USMS Detainee Housing Pods

16

131. Plaintiffs are currently assigned to the following locations: Pods FG, GC,

17 1100A, 1100E, and 900F. Unit 900 is the RHU.

18

132. Again, the dayroom areas of these pods are large, and allow ample space for

19 detainees to socially distance themselves from each other.

20

133. Detainees in these pods—as in all pods throughout the facility—are regularly

21 advised of the importance of wearing face masks and social distancing when outside of their

22 cells during Town Hall Meetings and everyday interactions with staff.

23

134. All facility-wide COVID-19 response operations, including but not limited to

24 PPE requirements for staff, provision of medical care, provision of educational postings and

25 frequent Town Hall Meetings, provision of face masks to detainees, provision of soap and

26 cleaning/disinfecting supplies to detainees, social distancing opportunities, enhanced

27 sanitation practices, meal service, laundry service, commissary service, library service, and

28

25

Case 2:20-cv-00901-DJH-DMF Document 48-1 Filed 08/11/20 Page 27 of 27

Case 2:20-cv-00901-DJH-DMF Document 48-2 Filed 08/11/20 Page 1 of 5
EXHIBIT B
EXHIBIT B

CCasaese2:42:02-0c-vc-r0-00910711-D-JJGHZ-D-EMJFM DDooccuummeenntt4288-2 FiFleilded070/82/21/12/020 PPagaege12ofo4f 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America v.

JUDGMENT IN A CRIMINAL CASE
(For Offenses Committed On or After November 1, 1987)

Claudia Romero-Lorenzo

No. CR-20-00171-001-TUC-JGZ (EJM)

USM#: 23350-508

Jordan Perry Malka (FPD)
Attorney for Defendant
ICE# A079658357

THE DEFENDANT ENTERED A PLEA OF guilty on 1/15/2020 to the Indictment.

ACCORDINGLY, THE COURT HAS ADJUDICATED THAT THE DEFENDANT IS GUILTY OF THE FOLLOWING OFFENSE(S): violating Title 8, U.S.C. §1326(a), Reentry of Removed Alien, with sentencing enhancement pursuant to Title 8, U.S.C. §1326(b)(1), a Class C Felony offense, as charged in the Indictment.

IT IS THE JUDGMENT OF THIS COURT THAT the defendant is committed to the custody of the Bureau of Prisons for a term of TEN (10) MONTHS, with credit for time served. Upon release from imprisonment, the defendant shall be placed on supervised release for a term of THIRTY-SIX (36) MONTHS.

CRIMINAL MONETARY PENALTIES

The defendant shall pay to the Clerk the following total criminal monetary penalties:

SPECIAL ASSESSMENT: REMITTED FINE: WAIVED RESTITUTION: N/A

The Court finds the defendant does not have the ability to pay a fine and orders the fine waived.

On motion of the Government, the special assessment is REMITTED.

SUPERVISED RELEASE

It is ordered that while on supervised release, the defendant must comply with the mandatory and standard conditions of supervision as adopted by this court, in General Order 17-18, which incorporates the requirements of USSG §§ 5B1.3 and 5D1.2. Of particular importance, the defendant must not commit another federal, state, or local crime during the term of supervision. Within 72 hours of sentencing or release from the custody of the Bureau of Prisons the defendant must report in person to the Probation Office in the district to which the defendant is released. The defendant must comply with the following conditions:

CCasaese2:42:02-0c-vc-r0-00910711-D-JJGHZ-D-EMJFM DDooccuummeenntt4288-2 FiFleilded070/82/21/12/020 PPagaege23ofo4f 5

CR-20-00171-001-TUC-JGZ (EJM) USA vs. Claudia Romero-Lorenzo

Page 2 of 4

MANDATORY CONDITIONS
1) You must not commit another federal, state or local crime. 2) You must not unlawfully possess a controlled substance. The use or possession of marijuana,
even with a physician's certification, is not permitted. 3) You must refrain from any unlawful use of a controlled substance. The use or possession of
marijuana, even with a physician's certification, is not permitted. Unless suspended by the Court, you must submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court.
STANDARD CONDITIONS
1) You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of sentencing or your release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time frame.
2) After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and when you must report to the probation officer, and you must report to the probation officer as instructed.
3) You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the court or the probation officer.
4) You must answer truthfully the questions asked by your probation officer. 5) You must live at a place approved by the probation officer. If you plan to change where you live
or anything about your living arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of becoming aware of a change or expected change. 6) You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to take any items prohibited by the conditions of your supervision that he or she observes in plain view. 7) You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses you from doing so. If you plan to change where you work or anything about your work (such as your position or your job responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of becoming aware of a change or expected change.

CCasaese2:42:02-0c-vc-r0-00910711-D-JJGHZ-D-EMJFM DDooccuummeenntt4288-2 FiFleilded070/82/21/12/020 PPagaege34ofo4f 5

CR-20-00171-001-TUC-JGZ (EJM) USA vs. Claudia Romero-Lorenzo

Page 3 of 4

8) You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the probation officer.
9) If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.
10) You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers).
11) You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without first getting the permission of the court.
12) If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.
13) You must follow the instructions of the probation officer related to the conditions of supervision.

SPECIAL CONDITIONS
The following special conditions are in addition to the conditions of supervised release or supersede any related standard condition:
1) If deported, you must not re-enter the United States without legal authorization.

THE DEFENDANT IS ADVISED OF DEFENDANT'S RIGHT TO APPEAL BY FILING A NOTICE OF APPEAL IN WRITING WITHIN 14 DAYS OF ENTRY OF JUDGMENT.
The Court may change the conditions of probation or supervised release or extend the term of supervision, if less than the authorized maximum, at any time during the period of probation or supervised release. The Court may issue a warrant and revoke the original or any subsequent sentence for a violation occurring during the period of probation or supervised release.
// // // //

CCasaese2:42:02-0c-vc-r0-00910711-D-JJGHZ-D-EMJFM DDooccuummeenntt4288-2 FiFleilded070/82/21/12/020 PPagaege45ofo4f 5

CR-20-00171-001-TUC-JGZ (EJM) USA vs. Claudia Romero-Lorenzo

Page 4 of 4

The Court orders commitment to the custody of the Bureau of Prisons.

Date of Imposition of Sentence: Monday, July 20, 2020

Dated this 20th day of July, 2020.

RETURN

I have executed this Judgment as follows:

defendant delivered on

to

at

designated by the Bureau of Prisons with a certified copy of this judgment in a Criminal case.

United States Marshal

By:

Deputy Marshal

CR-20-00171-001-TUC-JGZ (EJM)- Romero-Lorenzo

, the institution

Case 2:20-cv-00901-DJH-DMF Document 48-3 Filed 08/11/20 Page 1 of 6
EXHIBIT C
EXHIBIT C

8/6/2020

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MENU
Media Statement

CoreCivic Statement on COVID-19 Prevention
CoreCivic is working hard to protect our employees, those entrusted to our care, and our communities during the COVID-19 pandemic. We have a Coronavirus Medical Action Plan in place at each of our facilities, which we’ve been working on since January. This plan includes:
Having medical staff participate in the intake process to identify those who are deemed high-risk of being infected with or contracting COVID-19; Isolating those who are deemed high-risk as needed; and Working with local and state health departments to conduct appropriate testing.
All of our facilities are actively promoting the following three health habits for inmates, detainees and residents, as well as staff: regular hand hygiene, respiratory etiquette (coughing or sneezing into a sleeve or tissue), and avoiding touching one’s face. We also encourage the practice of social distancing for all individuals within our facilities.
Our health services administrators cooperate fully with local and state health departments, and our protocols mirror local, state, and federal recommendations. Our plan and practices build on the extensive work we do every day to run clean, healthy and safe facilities. We appreciate the hard work and dedication of all our medical staff during this time.
We have asked all of our employees to help prevent the spread of COVID-19 and other respiratory diseases by adhering to the following recommendations:
Avoid close contact with people who are sick. Avoid touching your eyes, nose, and mouth with unwashed hands. Stay home when you are sick. Cover your cough or sneeze with a tissue, then throw the tissue in the trash. Clean and disinfect frequently touched objects and surfaces using a regular household cleaning spray or wipe.

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Follow the CDC's recommendations for using a facemask.

Wash your hands often with soap and water for at least 20 seconds, especially after going to the bathroom; before eating; and after blowing your nose, coughing, or sneezing.

Screening

All employees are screened upon entering a CoreCivic facility. Procedures are specific to correctional and detention facilities, designed to prevent the introduction and spread of the COVID19 virus. These steps include answering a screening questionnaire related to symptoms of infection, and a safe temperature check.

Social Distancing

Staff routinely encourage appropriate social distancing and model that behavior for those in our care. Social distancing is encouraged through regular town hall meetings, posted flyers, information presented over the closed circuit television system, and the routine instruction of staff all serve to encourage those known effective steps to prevent the transmission of the COVID-19 virus.

Cleaning and Disinfecting Practices

In all CoreCivic facilities, staff adhere to the CDC recommendations for cleaning and disinfection during the COVID-19 response. This will include cleaning and disinfecting surfaces, objects and shared equipment that are frequently touched or used by staff members and those entrusted to our care. Our facilities use commercial cleaners and EPA-registered disinfectants that are effective against the virus that causes COVID-19, following label instructions to ensure their safe and effective use. We have adequate supplies to support these intensified cleaning and disinfecting practices

Personal Protective Equipment (PPE)

Consistent with Centers for Disease Control and Prevention (CDC) recommendations, face masks are provided to all staff and those in our care. Disposable gloves are readily available for staff conducting searches and handling property. Staff working at the front lobby screening sites wear personal protective equipment (PPE).

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Giving Back
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Facility Locator Contact
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Address: 5501 Virginia Way, Suite 110
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Phone: 615-263-3000
Fax: 615-263-3140
Fax (for employment verification only): 615-242-5826
©2020 CoreCivic

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EXHIBIT D
EXHIBIT D

Case 2:20-cv-00901-DJH-DMF Document 48-4 Filed 08/11/20 Page 2 of 2
How CoreCivic is Managing COVID-19
For more than 35 years, CoreCivic has been a valued partner for government when it comes to public safety. During that time, we’ve implemented industry best practices to handle the potential spread of infectious diseases. Here’s what CoreCivic is doing to keep our employees and all those in our care safe from COVID-19. • Implemented current guidelines from the CDC and World
Health Organization for COVID-19 at all CoreCivic facilities • Revised policies and procedures to include best practices
for the prevention and handling of novel coronavirus • Purchased COVID-19 testing kits • Communicated best practices for personal hygiene to prevent the spread of the
disease • Urged employees to stay home if they are ill and expanded PTO policies for sick em-
ployees or those caring for ill family members • Developed plan to separate high-risk individuals in our care who are more suscepti-
ble to COVID-19 • Worked closely with our government partners to suspend visitation at facilities as
necessary • Secured additional stores of personal protective equipment • Activated our Emergency Operations Center to provide real-time support to facilities
and monitor the impacts of the pandemic on our organization
As a reminder
• All those in our care have access to around-the-clock medical care • Our faciliites are well-staffed and trained to contain or treat this virus if necessary • We are in constant communication with our government partners and local, state, and
federal health agencies as we work to keep our employees and those in our care safe and healthy

Case 2:20-cv-00901-DJH-DMF Document 48-5 Filed 08/11/20 Page 1 of 2
EXHIBIT E
EXHIBIT E

Case 2:20-cv-00901-DJH-DMF Document 48-5 Filed 08/11/20 Page 2 of 2
Frequently Asked Questions Regarding COVID-19
1. Has visitation at my loved one’s facility been suspended? In an effort to prevent the spread of coronavirus, many of our Government Partners have decided to halt visitations temporarily until the significant risk has passed. We have provided a list to each facility’s updated visitation policy here.
2. How can I stay in contact with my friend or family member if visitation is suspended? Telephone calls will not be affected by changes in visitation policy. Review the facility visitation policy here to learn what is and is not permitted at this time.
3. Are facilities on lockdown due to coronavirus? No. Facilities are not locked down at this time due to coronavirus.
4. Do the individuals at CoreCivic facilities have access to hand washing supplies? Yes. Soap, washing facilities, and other supplies are available for staff and inmates/ detainees/residents to use often.
5. How is CoreCivic working to prevent the spread of COVID-19? We are continuously educating staff and those in our care about the best prevention measures recommended by the CDC. Additionally, we have increased the disinfecting of high touch areas in our facilities and are adhering to updated visitation policies mandated by our government partners. We continue to monitor the situation and will adjust as necessary to protect the wellbeing of everyone in our care.
6. How will CoreCivic address coronavirus in a facility? Each of our facilities has a comprehensive plan in place to address coronavirus which includes processes to: detect and track disease, collect, analyze and report data on individuals exhibiting signs of illness; and separate the sick from the well. All of our facilities are actively promoting the following recommended prevention habits: regular hand hygiene, respiratory etiquette (coughing or sneezing into a sleeve or tissue), and avoiding touching one’s mouth, nose, or eyes. Our health services administrators cooperate fully with local and state health departments and our protocols mirror local, state and federal recommendations.

 
 Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 1 of 20

1 Daniel P. Struck, Bar No. 012377 Rachel Love, Bar No. 019881
2 Nicholas D. Acedo, Bar No. 021644 Jacob B. Lee, Bar No. 030371
3 STRUCK LOVE BOJANOWSKI & ACEDO, PLC 3100 West Ray Road, Suite 300
4 Chandler, Arizona 85226 Telephone: (480) 420-1600
5 dstruck@strucklove.com rlove@strucklove.com
6 nacedo@strucklove.com jlee@strucklove.com
7 Attorneys for Defendant-Respondent Kris Kline
8 MICHAEL BAILEY
9 United States Attorney District of Arizona
10 WILLIAM C. STAES Assistant United States Attorney
11 Illinois State Bar No. 6314835 40 North Central Avenue, Suite 1800
12 Phoenix, AZ 85004-4449 Telephone: (602) 514-7500
13 Fax: (602) 514-7693 William.Staes@usdoj.gov
14 Attorneys for Defendants-Respondents
15 David Gonzales, Donald Washington, and Michael Carvajal
16

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF ARIZONA

19 Maria Guadalupe Lucero-Gonzalez, et al.,

NO. CV-20-00901-PHX-DJH (DMF)

20

21

v.

22 Kris Kline, et al.,

Plaintiffs-Petitioners,

DEFENDANTS-RESPONDENTS’ JOINT RESPONSE IN
OPPOSITION TO MOTION FOR CLASS CERTIFICATION (Dkt. 3)

23

Defendants-Respondents.

24

25

26

27

28

Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 2 of 20

1

Defendants-Respondents Kris Kline, Warden of the Central Arizona Florence

2 Correctional Complex (“CAFCC”); David Gonzales, U.S. Marshal for the District of

3 Arizona; Donald W. Washington, Director of the U.S. Marshals Service (“USMS”); and

4 Michael Carvajal, Director of the Federal Bureau of Prisons (“BOP”), through their

5 respective counsel, oppose Plaintiffs-Petitioners’ Motion for Class Certification. Plaintiffs

6 fall woefully short of demonstrating compliance with Rule 23’s certification requirements.

7 The Class Representatives are inadequate and atypical. Their claims are not capable of

8 generating classwide answers. And a single classwide injunction and declaration cannot be

9 tailored. At a minimum, Plaintiffs’ request for release is not certifiable, and their request

10 for provisional certification is moot. The Motion should be denied.

11 I. 12

Factual and Procedural Background. On May 8, 2020, Plaintiffs filed a Class-Action Complaint for Declaratory and

13 Injunctive Relief and Petition for Writs of Habeas Corpus (“Complaint”), a Motion for

14 Preliminary Injunction, and a Motion for Class Certification. (Dkt. 1, 2, 3.) All three were

15 supported with the unsworn declarations of the five named Plaintiffs (Dkt. 1-5 through Dkt.

16 1-9), the declarations of an Assistant Federal Public Defender (Dkt. 1-3; see also Dkt. 18-1

17 at 8–10), and the declaration of their expert (Dkt. 1-4; see also Dkt. 18-1 at 2–6). Their

18 Motion for Class Certification was also supported by declarations from three of their

19 counsel. (Dkt. 3-2 through Dkt. 3-4.)

20

Plaintiffs are federal pretrial detainees or post-conviction prisoners who are or were

21 detained at CAFCC. (Dkt. 1, ¶¶ 2, 19–23.) They allege that the “conditions and policies at

22 [CAFCC] expose [them] to unreasonable risk of contracting COVID-19,” in violation of

23 their Fifth and Eighth Amendment rights. (Id., ¶¶ 44–45, 80–103.) Plaintiffs Romero-

24 Lorenzo, Peuplie, Ciecierski, and Enos seek to represent the Pretrial Class, consisting of

25 “[a]ll current and future persons … in pretrial detention at [CAFCC].” (Id., ¶¶ 70; Dkt. 3

26 at 2 & n.1.) Plaintiff Lucero-Gonzalez seeks to represent the Post-Conviction Class,

27 consisting of “[a]ll current and future persons … in post-conviction detention at [CAFCC].”

28 (Id., ¶ 71; Dkt. 3 at 2 & n.2.)

1

Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 3 of 20

1

After reviewing Plaintiffs’ evidence and Defendants’ rebuttal evidence, the Court

2 denied Plaintiffs’ request for a preliminary injunction, finding Plaintiffs failed to

3 demonstrate a violation of their constitutional rights. (Dkt. 29.) Regarding the Fifth

4 Amendment claim, the Court “conclude[d] that Defendants’ policies related to COVID-19

5 at CAFCC have not been, objectively, deliberately indifferent to Plaintiffs’ health or safety.

6 Rather, Defendants’ policies reflect the recommendations from the CDC, and have been

7 implemented without unreasonable delay as the CDC’s recommendations have been

8 promulgated and updated.” (Id. at 17.) Regarding Plaintiffs’ Eighth Amendment claim,

9 the Court concluded that the evidence did not demonstrate that Defendants’ policies were

10 “objectively insufficient and subjectively deliberately indifferent” to Plaintiffs’ health and

11 safety. (Id. at 14.)

12

After these rulings, Defendants moved the Court to suspend briefing on Plaintiffs’

13 Motion for Class Certification so that the litigation could follow the normal course,

14 including allowing class discovery. (Dkt. 37.) Plaintiffs opposed that request. (Dkt. 42-

15 1.) The Court did not suspend briefing, but did extend the response deadline to align with

16 Defendants’ deadline to answer the Complaint. (Dkt. 44.)

17

Several days before filing this Joint Response, Defendants’ counsel asked Plaintiffs’

18 counsel if they intended to “stand by the proposed classes and your arguments and

19 evidence” or if they would “like an opportunity to withdraw and refile” it with additional

20 evidence. (Exhibit 1.) Defendants’ counsel also advised that Lucero-Gonzalez has been

21 released from CAFCC and Romero-Lorenzo has been adjudicated guilty and is no longer a

22 pretrial detainee. Plaintiffs’ counsel informed that they were standing by their already filed

23 Motion and evidence, and would not file an amended complaint.

24

Defendants support this Opposition with all of their previously filed declarations and

25 evidence. The extensive measures taken by Defendants to protect the detainees, inmates,

26 and staff at CAFCC from exposure to COVID-19 are outlined in their Opposition to the

27 Motion for Preliminary Injunction (Dkt. 16) and the declarations of Warden Kline (Dkt. 16-

28 3, 23-1) and Dr. Ivens (Dkt. 16-2), and are incorporated here. Defendants further

2

Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 4 of 20

1 incorporate the declaration of Warden Kline filed on August 11, 2020. (Dkt. 48-1.) That

2 declaration explains CAFCC’s new policy, effective August 4, 2020, requiring testing of

3 any detainee who has been in close contact with a confirmed COVID-19 positive individual,

4 consistent with recently amended CDC recommendations. (Id., ¶ 14.) Detainees are also

5 now required to wear face masks any time they are outside their housing units (id., ¶ 89),

6 and have been provided additional education regarding COVID-19 prevention (id., ¶ 95).

7

Since the first positive detainee was identified on May 1, 2020 (and through August

8 7, 2020), there have been a total of 323 detainees and 146 staff members who have tested

9 positive for COVID-19 at CAFCC; 11 detainees have been hospitalized due to COVID-19

10 and one detainee died (on July 30, 2020). (Id., ¶¶ 15, 18.) On August 7, 2020, however,

11 there were only 17 detainees (out of 3,380) and 11 staff (out of 880) who were positive for

12 COVID-19 at CAFCC. (Id., ¶¶ 12, 15, 19.) Since March 19, 2020, CAFCC receives

13 approximately 5–10 new detainees each day, and has had an average daily population of

14 3,375 detainees. (Id., ¶¶ 13, 61.) CAFCC is currently operating at 68% design capacity.

15 (Id., ¶ 12.)

16 II. 17

The Standard for Class Certification. Plaintiffs’ burden to certify any class is extraordinarily high. “Rule 23 does not set

18 forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).

19 Rather, “[a] party seeking class certification must affirmatively demonstrate his compliance

20 with the Rule—that is, he must be prepared to prove that there are in fact sufficiently

21 numerous parties, common questions of law or fact, etc.” Id. (emphasis in original). In

22 addition, the Court cannot simply default to certification orders in other, similar cases. It

23 must conduct a “rigorous analysis” and conclude that Plaintiffs have established each Rule

24 23 element. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 980 (9th Cir. 2011).

25

Rule 23(a) consists of four elements—numerosity, commonality, typicality, and

26 adequacy. Fed. R. Civ. P. 23(a)(1)–(4). Since Plaintiffs seek injunctive relief, they must

27 also satisfy Rule 23(b)(2), which requires proof that Defendants “acted or refused to act on

28

3

Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 5 of 20

1 grounds that generally apply to the class.”1 Fed. R. Civ. P. 23(b)(2). Failure to meet “any

2 one of Rule 23’s requirements destroys the alleged class action.” Rutledge v. Elec. Hose &

3 Rubber Co., 511 F.2d 668, 673 (9th Cir. 1975).

4 III. The Court Should Not Certify Either Putative Class.

5

Defendants do not contest numerosity, but Plaintiffs have failed to establish any

6 other Rule 23 element. Although Plaintiffs were permitted to rely on unsworn declarations

7 and hearsay testimony in conjunction with their request for preliminary injunction, that is

8 not enough for class certification. Wal-Mart Stores, 564 U.S. at 350. They have failed to

9 affirmatively prove typicality, adequacy, commonality, or Rule 23(b)(2).

10

A. Plaintiffs Have Not Satisfied Typicality or Adequacy.

11

“A litigant must be a member of the class which he or she seeks to represent at the

12 time the class action is certified by the district court.” Sosna v. Iowa, 419 U.S. 393, 403

13 (1975); E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (a “class

14 representative must be part of the class”). If a named plaintiff is not a member of the class,

15 she lacks typicality and therefore may not seek relief on their behalf. NEI Contracting &

16 Eng’g, Inc. v. Hanson Aggregates Pac. Sw., Inc., 926 F.3d 528, 532 (9th Cir. 2019) (quoting

17 O’Shea v. Littleton, 414 U.S. 488, 494 (1974)).

18

If a named plaintiff is a member of the defined class, they may serve as a

19 representative only if: (1) they have suffered “the same or similar injury,” Hanon v.

20 Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992); (2) they do not “‘have any conflicts

21 of interest with other class members,’” Ellis, 657 F.3d at 985 (citation omitted); and (3) they

22 will “‘prosecute the action vigorously on behalf of the class,’” id. (citation omitted).

23 “Adequate representation depends on, among other factors, an absence of antagonism

24

25

1 In a footnote, Plaintiffs state that they “also satisfy Rule 23(b)(1) because requiring

hundreds of individual class members to prosecute separate actions on the same claims

26

would create a significant risk of inconsistent or varying adjudications that would establish incompatible standards of conduct for Defendants.” (Dkt. 3 at 12 n.3.) But they do not

27

provide any argument or authority to support that assertion. Merely reciting the Rule and conclusively stating they have satisfied it is not enough to satisfy their burden to

28 “affirmatively demonstrate” compliance with this element. Wal-Mart, 564 U.S. at 350.

4

Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 6 of 20

1 between representatives and absentees, and a sharing of interest between representatives

2 and absentees.” Id.; see also Fed. R. Civ. P. 23(a)(4) (class representatives must “fairly and

3 adequately protect the interests of the class”). A named plaintiff should not represent a

4 class if they are subject to “unique defenses.” Hanon, 976 F.2d at 508; see also Navellier

5 v. Sletten, 262 F.3d 923, 941 (9th Cir. 2001) (holding district court correctly applied Rule

6 23 in finding named plaintiff could not adequately represent the class because he was

7 “subject to unique defenses”); Williams v. Warner Music Grp. Corp., 2020 WL 1270331,

8 at *4 n.2 (C.D. Cal. Feb. 27, 2020) (noting that the “unique defenses” inquiry can go to

9 either typicality or adequacy elements).

10

1. The only Proposed Class Representative for the Post-Conviction

Class—Plaintiff Lucero-Gonzalez—is no longer a member of that

11

Class.

12

The Post-Conviction Class is defined as all “persons … in post-conviction detention

13 at [CAFCC].” (Dkt. 1, ¶¶ 2, 71; Dkt. 3 at 2 & n.2.) Plaintiffs selected Lucero-Gonzalez to

14 represent this Class. (Id.) But on August 7, 2020, Lucero-Gonzalez was sentenced to time

15 served, see No. 4:19-cr-03359-JGZ-BGM-1, Dkt. 48, and on August 8, she was released

16 from CAFCC (Dkt. 48-1, ¶ 136). Because she is no longer detained at CAFCC, she is not

17 a member of the Post-Conviction Class and therefore lacks typicality and adequacy. See

18 NEI Contracting, 926 F.3d at 532; see also Parsons v. Ryan, 289 F.R.D. 513, 524 (D. Ariz.

19 2013) (“The Court agrees that Parsons’ release undermines his adequacy as a Class

20 representative and he will be dismissed.”). Consequently, the Post-Conviction Class cannot

21 be certified. See also B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir.

22 1999) (“A class of plaintiffs does not have standing to sue if the named plaintiff does not

23 have standing.”).

24

Any attempt by Plaintiffs to argue that there is “‘a sufficient likelihood that [Lucero-

25 Gonzalez] will again be wronged in a similar way,’” Bates v. United Parcel Serv., Inc., 511

26 F.3d 974, 985 (9th Cir. 2007) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

27 (1992), and City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)), is unavailing. To do

28 so, Plaintiffs “must establish a ‘real and immediate threat of repeated injury.’” Fortyune v.

5

Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 7 of 20

1 Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004) (quoting O’Shea, 414 U.S. at

2 496). “[T]he threat of injury must be ‘actual and imminent, not conjectural or

3 hypothetical.’” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018)

4 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). “In other words, the

5 ‘threatened injury must be certainly impending to constitute injury in fact’ and ‘allegations

6 of possible future injury are not sufficient.’” Id. (quoting Clapper v. Amnesty Int’l USA,

7 568 U.S. 398, 409 (2013)).

8

Lucero-Gonzalez has served her sentence and has been released from CAFCC. Any

9 assertion that she may at some point in the future commit a federal crime, be arrested and

10 charged, and then detained at CAFCC again are too speculative to retain standing to pursue

11 prospective relief in this lawsuit. See Lyons, 461 U.S. at 108 (holding that it “is no more

12 than conjecture to suggest that in every instance of a traffic stop, arrest, or other encounter

13 between the police and a citizen, the police will act unconstitutionally and inflict injury

14 without provocation or legal excuse. And it is speculation to assert either that Lyons himself

15 will again be involved in one of those unfortunate instances, or that he will be arrested in

16 the future and provoke the use of a chokehold by resisting arrest, attempting to escape, or

17 threatening deadly force or serious bodily injury”); O’Shea, 414 U.S. at 497 (“[W]e are

18 nonetheless unable to conclude that the case-or-controversy requirement is satisfied by

19 general assertions or inferences that in the course of their activities respondents will be

20 prosecuted for violating valid criminal laws. We assume that respondents will conduct their

21 activities within the law and so avoid prosecution and conviction as well as exposure to the

22 challenged course of conduct said to be followed by petitioners.”); Diamond v. Corizon

23 Health, Inc., 2016 WL 7034036, at *5 (N.D. Cal. Dec. 2, 2016) (holding that a former

24 detainee did not have standing to bring injunctive relief claim where the alleged threat of

25 future injury first required his arrest and placement in jail).

26

Finally, Plaintiffs cannot substitute a new class representative at this point because

27 Lucero-Gonzalez’s claim became moot before any certification of the Post-Conviction

28 Class. See Kuahulu v. Employers Ins. of Wausau, 557 F.2d 1334, 1337 (9th Cir. 1977)

6

Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 8 of 20

1 (“But where the class was not certified before appellant’s claim became moot, Board of

2 School Commissioners of the City of Indianapolis v. Jacobs (1975) 420 U.S. 128, 129 …

3 requires us to dismiss the entire appeal as moot.”); accord Garcia v. Lane Bryant, Inc., 2012

4 WL 293544, at *4 (E.D. Cal. Jan. 31, 2012); Velazquez v. GMAC Mortg. Corp., 2009 WL

5 2959838, at *3 (C.D. Cal. Sept. 10, 2009). And Plaintiffs’ counsel knew her claim was

6 moot before Defendants filed this Response, but did not amend their Complaint. Id.

7

2. Plaintiff Romero-Lorenzo is no longer a member of the Pretrial

Class. 8

The Pretrial Class is defined as all “persons … in pretrial detention at Central

9

Arizona Florence Correctional Complex.” (Dkt. 1, ¶ 70; Dkt. 3 at 2 & n.2.) Romero-

10

Lorenzo was selected to be one of the Class Representatives. (Id.) But on July 20, 2020,

11

Romero-Lorenzo pleaded guilty and was sentenced to 10 months’ imprisonment. (Dkt. 48-

12

2.) Thus, she is no longer a pretrial detainee or a member of the Pretrial Class. Any

13

assertion that Romero-Lorenzo will at some point in the future be a pretrial detainee at

14

CAFCC is conjecture. Consequently, she lacks standing, typicality, and adequacy, and

15

cannot be a Class Representative, and Plaintiffs cannot substitute another class

16

representative because Romero-Lorenzo’s claim mooted before any certification of the

17

Pretrial Class, a fact Plaintiffs’ counsel was aware of. Kuahulu, 557 F.2d at 1337.

18

3. Plaintiffs’ requests for their release creates an inherent conflict of

19

interest.

20

Plaintiffs request a permanent injunction ensuring for “all detainees” adequate social

21 distancing, hygiene supplies, personal protective equipment, quarantine protocols, and

22 testing procedures, and adequate daily cleaning of surfaces. (Dkt. 1, Prayer for Relief,

23 ¶¶ 5.b-f.) But if such measures are not effective, Plaintiffs request that they be released.

24 (Id., ¶ 6.) This creates a perverse incentive for Plaintiffs to argue that no set of measures

25 can adequately protect all detainees (the Classes), requiring the Court to order Plaintiffs

26 release, instead of strenuously arguing for injunctive relief that they contend would benefit

27 the Classes. This conflict of interest presents “serious questions” regarding Plaintiffs’

28 adequacy to protect their interests. See Wilson v. Conair Corp., 2016 WL 7742772, at *4

7

Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 9 of 20

1 (E.D. Cal. June 3, 2016) (finding potential conflict of interest destroyed adequacy where

2 there was a “substantial risk that plaintiff [had] different priorities and litigation incentives

3 than the class members”); Estate of Felts v. Genworth Life Ins. Co., 250 F.R.D. 512, 524

4 (W.D. Wash. 2008) (class representative’s lack of incentive to pursue classwide relief raised

5 “serious questions” regarding its adequacy to represent the class).

6

4. There is no evidence that Plaintiffs will vigorously represent the

class. 7

Plaintiffs assert that they have the “requisite personal interest in the outcome of this

8

case” (Dkt. 3 at 11), but there is no evidence to affirmatively prove it. None of their

9

unsworn declarations suggests that they are aware of their responsibilities as Class

10

Representatives or willing to take on that role, much less that they have been designated as

11

such by their counsel. (See Dkt. 1-5 through Dkt. 1-9.) Rather, each have stated that they

12

are anxious to be released. (Id.) Only two Plaintiffs would remain in Arizona. (Dkt. 1-8 13

[Ciecierski]; Dkt. 1-9 [Enos].) 14

Plaintiff Romero-Lorenzo is disqualifying for an additional reason: her demonstrated 15

dishonesty. “The credibility and honesty of a class representative are relevant ‘because an 16

untrustworthy plaintiff could reduce the likelihood of prevailing on the class claims.’”

17

Wilson, 2016 WL 7742772, at *4 (quoting Harris v. Vector Mktg. Corp., 753 F. Supp. 2d

18

996, 1015 (N.D. Cal. 2010)) (citation omitted). As explained in Defendants’ Joint Notice

19

Re: Identity of Claudia Romero-Lorenzo (Dkt. 27), Romero-Lorenzo told USMS and a

20

magistrate judge that her name was Romero-Lopez. She subsequently admitted that her

21

real name was Romero-Lorenzo. (Id.) She should not represent any Class. See Bohn v.

22

Pharmavite, LLC, 2013 WL 4517895, at *1 (C.D. Cal. Aug. 7, 2013) (quoting Harris, 753

23

F. Supp. 2d at 1015) (inadequacy established if there are “confirmed examples of

24

dishonesty”).

25

5. Each Plaintiff is subject to unique defenses. 26
In addition to the standing and mootness issues that Plaintiffs will face, each one is

27 subject to a unique exhaustion defense, which they must overcome. Navellier, 262 F.3d at

28

8

Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 10 of 20

1 941. As Defendants argued in their Joint Response to Plaintiffs’ Motion for Preliminary

2 Injunction, none of the Plaintiffs exhausted their administrative remedies under the Prison

3 Litigation Reform Act (“PLRA”). (Dkt. 16 at 13–14; Dkt. 16-8; Dkt. 23-2.) Plaintiffs

4 contend that they did. (Dkt. 18 at 6–9.) The Court presumably did not reach this issue

5 because it denied a preliminary injunction on other grounds. (Dkt. 29.) If Plaintiffs’

6 Complaint survives Defendants’ Motion to Dismiss (Dkt. 48), Defendants will raise the

7 defense again. And if Plaintiffs did not exhaust available administrative remedies before

8 filing suit, their claims are barred. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v.

9 Carey, 311 F.3d 1198, 1199–1201 (9th Cir. 2002). This hotly contested issue will become

10 a major focus of the litigation, and each Plaintiff will have to separately establish

11 compliance with the PLRA, a highly individualized inquiry. (Dkt. 16-8: Dkt. 23-3.) This

12 presents yet another conflict of interest for Plaintiffs and defeats adequacy. See Hanon, 976

13 F.3d at 508 (class certification should be denied “if ‘there is a danger that absent class

14 members will suffer if their representative is preoccupied with defenses unique to it’”)

15 (citation omitted); Amador v. Superintendents of Dep’t of Corr. Servs., 2005 WL 2234050,

16 at *9 (S.D.N.Y. Sept. 13, 2005) (PLRA exhaustion defense can defeat adequacy).

17

B. Plaintiffs Have Not Satisfied Commonality or Rule 23(b)(2).

18

For purposes of commonality, it is not enough to simply allege that all class members

19 share the same characteristics—for example, that they have the same employer or make the

20 same request for relief. See Wal-Mart, 564 U.S. at 349–50 (“Reciting these questions is not

21 sufficient to obtain class certification.”). (See also Dkt. 3 at 7 [“all are (or will be) confined

22 at CoreCivic”].) Nor is it enough to allege “that they have all suffered a violation of the

23 same provision of law.” Id. (See also Dkt. 3 at 3 [“[D]o those actions and inactions fall

24 below minimum constitutional standards?”].) Such claims “give[] no cause to believe that

25 all their claims can productively be litigated at once.” Id. A qualifying common question

26 must be able to generate an answer that “resolve[s] an issue that is central to the validity of

27 each” class member’s claim “in one stroke.” Id. Dissimilarities within a proposed class

28 potentially impede the generation of common answers. Id.

9

Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 11 of 20

1

The commonality requirement is especially rigorous when seeking classwide

2 injunctive relief based on an alleged policy or practice. In that instance, a plaintiff must

3 present “significant proof” that the alleged practice in fact exists and that the entire class

4 was subjected to it. Wal-Mart, 564 U.S. at 353; Ellis, 657 F.3d at 983. Moreover, Rule

5 23(b)(2) certification is appropriate only when the alleged conduct “is such that it can be

6 enjoined or declared unlawful only as to all of the class members or as to none of them.”

7 Wal-Mart, 564 U.S. at 360. “It does not authorize class certification when each individual

8 class member would be entitled to a different injunction or declaratory judgment against the

9 defendant.” Id.

10

The commonality analysis begins with and “necessarily depends on the nature of the

11 underlying legal claims that the class members have raised.” Jimenez v. Allstate Ins. Co.,

12 765 F.3d 1161, 1165 (9th Cir. 2014). Plaintiffs do not distinguish between their Fifth and

13 Eighth Amendment claims, and instead rely almost exclusively on the Ninth Circuit’s

14 decision in Parsons v. Ryan, 754 F.3d 657, 662 (9th Cir. 2014), a case involving only an

15 Eighth Amendment claim.

16

At first blush, Plaintiffs’ Eighth Amendment claims seems impossible to resolve on

17 a classwide basis. Individual inquiries abound. Whether a detainee is exposed to a

18 “substantial risk of serious harm,” Farmer v. Brennan, 511 U.S. 825, 828 (1994) (emphasis

19 added), necessarily requires a case-by-case evaluation of, inter alia, the detainee’s age,

20 preexisting medical conditions, and exposure to COVID-19. See Phillips v. Sheriff of Cook

21 Cty., 828 F.3d 541, 544–56 (7th Cir. 2016) (affirming decertification of class of “[a]ll

22 persons presently confined at [a] jail who are experiencing dental pain” on ground that

23 claims could “only be answered by looking at the unique facts of each detainee’s case”);

24 Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (in the context of conditions claims,

25 “[t]he circumstances, nature, and duration of a deprivation . . . must be considered in

26 determining whether a constitutional violation has occurred”).

27

Parsons, however, affirmed class certification of an Eighth Amendment claim

28 alleging systemic deficiencies in the Arizona Department of Corrections’ provision of

10

Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 12 of 20

1 healthcare. The court held that commonality was satisfied simply because all class

2 members were exposed to the same policies or practices, and, therefore, whether those

3 policies and practices exposed them to a substantial risk of serious harm could be resolved

4 in one stroke. Parsons, 754 F.3d at 678–79. “[E]ither each of the policies and practices is

5 unlawful as to every inmate or it is not.” Id.

6

Defendants do not dispute that the Court is bound by Parsons.2 But Parsons does

7 not compel a finding of commonality in this case for at least two reasons.

8

First, Parsons made clear that a finding of commonality based on a systemic-

9 deficiency theory must be based on “sufficient evidence of systemic and centralized policies

10 or practices in a prison system that allegedly expose all inmates in that system to a

11 substantial risk of serious future harm.” Id. at 683–84. In Parsons, the inmates exceeded

12 that requirement—they submitted “four thorough and unrebutted expert reports, the detailed

13 allegations in the 74-page complaint, hundreds of internal ADC documents, and

14 declarations by the named plaintiffs”; the defendants’ “near-utter[ly] fail[ed] to respond to

15 it with evidence of their own.” Id. at 663–672, 683 & n.29. The evidence thus “adequately

16 demonstrated the existence of the challenged statewide policies and practices.” Id.

17

By contrast, Plaintiffs’ declarations regarding the alleged conditions are unsworn

18 (Dkt. 1-5 through Dkt. 1-9); the declarations of Ms. Woehr rely largely on untested hearsay

19 (Dkt. 1-3; Dkt. 18-1 at 8–10); and the declarations of Dr. Goldenson—Plaintiffs’ only

20 expert—hardly speaks to the conditions at CAFCC (Dkt. 1-4; Dkt. 18-1 at 2–6), and the

21 handful of avowals that do pertain to CAFCC were thoroughly rebutted by Defendants’

22 experts and evidence (Dkt. 16-1, 16-2, 16-3, 16-4 through 16-7; Dkt. 23-1). This is “worlds

23 away” from the requisite “significant proof” of the alleged unconstitutional practices. Wal-

24

2 But see Parsons v. Ryan, 784 F.3d 571, 573 (9th Cir. 2015) (Ikuta, J., joined by five

25

judges, dissenting from the denial of rehearing en banc) (stating that the panel’s decision “endorses a view of the Eighth Amendment and class actions that is at odds with the binding

26

authority of the Supreme Court”); Sabata v. Nebraska Dep’t of Corr. Servs., 2020 WL 3047479, at *46 (D. Neb. June 8, 2020) (disagreeing with Parsons and ruling: “Under the

27

Ninth Circuit’s logic, almost any disparate group of plaintiffs could be certified as a class by reducing the relevant inquiry to an oversimplified question of ‘legality’ and ignoring the

28 pesky facts and details that might differentiate class members.”).

11

Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 13 of 20

1 Mart, 564 U.S. at 355; see also Willis v. City of Seattle, 943 F.3d 882, 885 (9th Cir. 2019)

2 (“Allegations of individual instances of mistreatment, without sufficient evidence, do not

3 constitute a systemic deficiency or overarching policy of wrongdoing.”); Civil Rights Educ.

4 & Enf’t Ctr. v. Hosp. Properties Tr., 867 F.3d 1093, 1104 (9th Cir. 2017) (“[M]erely

5 pointing to a pattern of harm, untethered to the defendant’s conduct, is insufficient.”). In

6 fact, after reviewing all this evidence, the Court concluded that Plaintiffs failed to establish

7 either a Fifth or Eighth Amendment violation. (Dkt. 29.) And as discussed in Section I,

8 CAFCC has taken additional precautionary measures since that ruling.

9

Second, Parsons disregarded the effect of the systemically deficient practices on

10 each inmate, which removed the necessity of individualized determinations, because at

11 some point they would eventually need to rely on the system for medical care:

12

And any one of them could easily fall ill, be injured, need to fill

a prescription, require emergency or specialist care, crack a

13

tooth, or require mental health treatment. It would indeed be

surprising if any given inmate did not experience such a health

14

care need while serving his sentence. … [I]nadequate health

care in a prison system endangers every inmate: [e]ven

15

prisoners with no present physical or mental illness may

become afflicted, and all prisoners … are at risk so long as the

16

State continues to provide inadequate care. Prisoners who are

not sick or mentally ill … are that system’s next potential

17

victims.

18 754 F.3d at 678 (internal quotations and citation omitted). This case is different. It is

19 contingent on “the dangers posed by COVID-19.” (Dkt. 1, ¶ 2.) But as even Plaintiffs

20 acknowledge, not everyone who contracts COVID-19 is impacted in the same way and

21 many have no symptoms at all. (Dkt. 1-4, ¶ 31 [“infected individuals may experience only

22 mild symptoms”], ¶ 35 [“there are likely many asymptomatic individuals”], ¶ 40 [“close to

23 95% of those who tested positive [at an Ohio facility] were asymptomatic”].) Indeed,

24 studies suggest that at least 40% of individuals who test positive for COVID-19 are

25 asymptomatic.3 Moreover, any resulting health effects depend on a variety of factors,

26
3 See, e.g., Enrico Lavezzo el al., Suppression of a SARS-CoV-2 outbreak in the 27 Italian municipality of Vo’, Nature (June 30, 2020),
https://www.nature.com/articles/s41586-020-2488-1, last visited Aug. 11, 2020 (“Our 28 finding that 42.5% (95% CI: 31.5–54.6%) of all confirmed SARS-CoV-2 infections across

12

Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 14 of 20

1 including age, underlying medical conditions, and race,4 and even the CDC concedes that

2 the “impact” of any particular medical condition is still uncertain. See

3 https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-

4 conditions.html (last visited Aug. 11, 2020).

5

Thus, the relevant question is not whether “Defendants’ policies and practices fail to

6 protect the class members from COVID-19 exposure and infection.” (Dkt. 3 at 6.) Even

7 exposure and infection can result in no harm. The question that will “drive the resolution

8 of the litigation,” Wal-Mart, 564 U.S. at 350, is whether every detainee is at substantial risk

9 of serious harm even if they contract COVID-19. To answer that question will require an

10 individualized determination of each detainee’s circumstance. That defeats commonality,

11 and a blanket injunction runs afoul of Rule 23(b)(2).

12

Plaintiffs make no attempt to show commonality on their Fifth Amendment claim.

13 Parsons does not help them because it did not involve the same due process theories. And

14 simply citing other cases that certified Fifth Amendment claims (in the immigration

15 detention context) hardly demonstrates commonality in this case. See Richey v. Matanuska-

16

the two surveys were asymptomatic is in accordance with other population surveys.”); 17 Daniel Oran & Eric Topol, Prevalence of Asymptomatic SARS-CoV-2 Infection, Annals of

Internal Medicine (Jun. 3, 2020), https://www.acpjournals.org/doi/10.7326/M20-3012, last 18 visited Aug. 11, 2020 (“Asymptomatic persons seem to account for approximately 40% to

45% of SARS-CoV-2 infections …”).

19

4 See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-

20 adults.html, last visited Aug. 11, 2020 (reporting that “8 out of 10 COVID-19 deaths reported in the U.S. have been in adults 65 years old and older”);

21 https://www.cdc.gov/nchs/nvss/vsrr/covid_weekly/index.htm, (for week ending August 1, 2020, 82% of all COVID-19 deaths involved individuals who were 65 years old or older,

22 13% involved individuals between 55 and 64 years old, and 4% involved individuals between the ages of 45 and 65 years old); https://www.cdc.gov/coronavirus/2019-

23 ncov/covid-data/covidview/index.html#hospitalizations (based on data through July 25, 2020, hospitalization rate for persons 65 years old and older is 360.2 per 100,000;

24 hospitalization rate for persons between 50 and 64 years old is 196.3 per 100,000; hospitalization rate for persons between 18 and 49 years old is 85.5 per 100,000;

25

hospitalization rate for non-Hispanic Blacks and Hispanic or Latinos was 265.1 and 266.6 per 100,000, respectively; and hospitalization rate for non-Hispanic Asian or Pacific

26

Islander and non-Hispanic White was 72.8 and 56.5 per 100,000, respectively); https://www.cdc.gov/coronavirus/2019-ncov/covid-

27

data/covidview/index.html#hospitalizations (based on data through July 25, 2020, 90.8% of laboratory-confirmed COVID-19 adult hospitalizations reported at least one underlying

28 medical condition).

13

Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 15 of 20

1 Susitna Borough, 2015 WL 1542546, at *5 (D. Alaska Apr. 7, 2015) (plaintiffs failed to

2 meet their burden of demonstrating commonality where they failed to identify the elements

3 of their claims or explain why a determination of their proposed common questions was

4 central to the validity of them).

5

Nonetheless, Plaintiffs’ Fifth Amendment claim fails commonality for the same

6 reasons. Like their Eighth Amendment claim, a due process claim requires proof that “the

7 conditions under which the plaintiff was confined … put the plaintiff at substantial risk of

8 suffering serious harm.” Gordon v. Cty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018).

9 They must also show that the defendant’s conduct in failing to abate the risk of harm was

10 “objectively unreasonable.” Id. That inquiry “turns on the ‘facts and circumstances of each

11 particular case,” including each putative class member’s age, medical history, and unique

12 risk profile. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015); Gordon, 888 F.3d at

13 1125; see also Derron B. v. Tsoukaris, 2020 WL 2079300, at *8 (D.N.J. Apr. 30, 2020)

14 (“[A] petitioner’s individual circumstances … are critical to the [Fifth Amendment]

15 analysis.”). Indeed, the Supreme Court has recently questioned whether a due process claim

16 can ever be resolved in a class action since such claims are best resolved on a case-by-case

17 basis. Jennings v. Rodriguez, 138 S. Ct. 830, 852 (2018). Plaintiffs’ due process claim is

18 not capable of classwide resolution. See C.G.B. v. Wolf, 2020 WL 2935111, at *16–19

19 (D.D.C. June 2, 2020) (ruling detainees’ “varying levels of susceptibility to COVID-19”

20 precluded certification of Fifth Amendment claim).5

21

C. At a Minimum, the Court Should Not Certify a Class that Seeks Release.

22

As noted above, it does not appear that Plaintiffs seek classwide release, but even if

23 they did seek classwide release, such relief could not be certified. Under the PLRA, in

24

5 Although Plaintiffs’ Complaint alternatively raises an “intent to punish” theory, see

25

Bell v. Wolfish, 441 U.S. 520, 535 (1979) (conditions amount to punishment only if defendant acted with “express intent” to punish that is not “reasonably related to a legitimate

26

governmental objective”), their Motion makes no attempt to certify it. (Dkt. 3.) Therefore, they have waived certification of that theory. Defendants note that any impermissible

27

punishment claim cannot be certified, as it requires an evaluation of whether detention is excessive in relation to a legitimate government interest (Dkt. 1, ¶ 83), which necessarily

28 turns on each detainee’s unique criminal background, flight risk, and medical history.

14

Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 16 of 20

1 granting any prospective relief “in any civil action with respect to prison conditions,” a

2 court must “give substantial weight to any adverse impact on public safety.” 18 U.S.C.

3 §§ 3626(a)(1)(A), (a)(2). 6 Thus, before releasing any class member, the Court must

4 “consider the circumstances of the detained persons and any threat they pose to public

5 safety, which plainly would vary from one person to another.” Mays v. Dart, 2020 WL

6 1987007, at *20 (N.D. Ill. Apr. 27, 2020). Courts routinely find that this individualized

7 inquiry necessarily defeats commonality and/or Rule 23(b)(2). See Gayle v. Meade, 2020

8 WL 3041326, at *43 (S.D. Fla. June 6, 2020) (“[T]he claims for release are inappropriate

9 for class treatment because they do not meet the commonality element.”); Mays, 2020 WL

10 1987007, at *20 (“This is a process that would render the claim unsuitable to certification

11 under Rule 23(b)(2) or its analogy for representative actions.”).

12

For example, the district court in Money v. Pritzker, 2020 WL 1820660, at *15 (N.D.

13 Ill. Apr. 10, 2020), recognized that classwide release was inappropriate because “[e]ach

14 putative class member comes with a unique situation—different crimes, sentences,

15 outdates, disciplinary histories, age, medical history, places of incarceration, proximity to

16 infected inmates, availability of a home landing spot, likelihood of transmitting the virus to

17 someone at home detention, likelihood of violation or recidivism, and danger to the

18 community.” The “permutations here are endless” and “so vast and fundamental” that class

19 treatment “is completely unworkable.” Id. And in Wragg v. Ortiz, 2020 WL 2745247, at

20 *28 (D.N.J. May 27, 2020), the district court ruled that it “seems extremely unlikely to this

21 Court that the issues in common here are capable of class-wide resolution “in one stroke,”

22 short of ordering the BOP to throw open the gates of Fort Dix. Rather, the Court would be

23 required to engage in an intensive, multi-step, individualized inquiry as to whether each

24 prisoner met criteria for conditional release.” See also Gayle v. Meade, 2020 WL 2744580,

25 at *23 (S.D. Fla. May 22, 2020) (“Because release orders must be made individually, there

26 cannot be a class-wide injunction for all detainees (i.e., there would not be one injunction

27

6 As discussed in other filings, which Defendants incorporate here, the PLRA applies

28 to Plaintiffs’ claims. (Dkt. 16 at 18–21; Dkt. 48 at 10–11.)

15

Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 17 of 20

1 requiring a mass release of all 1,214 detainees). Thus, Rule 23(b)(2) is inapplicable.”); id.

2 at n.22 (“These assessments would have to be made on an individualized basis, which is

3 contrary to the class-wide requirement of Rule 23(b)(2) relief.”).

4

Plaintiffs have been charged with different crimes, including intent to distribute

5 methamphetamine, bank robbery by force or violence, and aggravated sexual abuse. (Dkt.

6 16 at 2–4.) They have also already been denied bond, two because they posed a danger to

7 public safety. (Id.) The varying criminal histories and resulting threat to public safety that

8 each putative class member poses necessarily require a case-by-case determination as to

9 whether their release complies with the PLRA. See also 18 U.S.C. §§ 3142(f)–(g) (Bail

10 Reform Act inquiry). In addition, the Court will have to review whether each putative class

11 member can be released into a situation that will not place them or the general public at a

12 heightened risk of contracting COVID-19. Those thousands of individual inquiries defeat

13 commonality, and because release orders cannot be made individually, there cannot be an

14 indivisible classwide injunction for all detainees, which defeats and Rule 23(b)(2).

15 IV. The Court Should Not Certify the Habeas Action.

16

The Supreme Court “has never addressed whether habeas relief can be pursued in a

17 class action,” Jennings, 138 S. Ct. at 858 n.7 (Thomas, J., concurring), and it does not appear

18 that Plaintiffs seek to certify the habeas aspect of their Complaint. Plaintiffs’ Complaint is

19 vague at best. (Dkt. 1, ¶¶ 11, 14, 15, 17, 69–73 & Prayer for Relief, ¶ 6). More importantly,

20 their Motion does not make any particular argument that the habeas aspect should be

21 certified. (Dkt. 3.) See Rodriguez v. Hayes, 591 F.3d 1105, 1117 (9th Cir. 2010) (noting

22 that, although the Ninth Circuit has permitted class certification in certain habeas actions,

23 it is “ordinarily disfavored”). Thus, they have not “affirmatively demonstrated” entitlement

24 to class certification. Wal-Mart, 564 U.S. at 350.

25

Nonetheless, certification is not appropriate for all the reasons articulated in Section

26 III. See also Grinis v. Spaulding, 2020 WL 3097360, at *4 (D. Mass. June 11, 2020) (“There

27 is nothing in the long history of the writ that would support permitting prisoner A to seek

28 the writ to effect prisoner B’s discharge from custody …”). Furthermore, even assuming

16

Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 18 of 20

1 the Court has jurisdiction to review Plaintiffs’ habeas claims (Dkt. 48 at 7–10), one

2 additional hurdle is that Plaintiffs must demonstrate that they exhausted their administrative

3 remedies before filing their Petition. See, e.g., Martinez v. Roberts, 804 F.2d 570, 571 (9th

4 Cir. 1986) (“Federal prisoners are required to exhaust their federal administrative remedies

5 prior to bringing a petition for a writ of habeas corpus in federal court.”); Tucker v. Carlson,

6 925 F.2d 330, 332 (9th Cir. 1991); Alvarez-Caceres v. Kline, 2020 WL 3064461, at *2 (D.

7 Ariz. June 9, 2020); Trevino v. Apker, 2010 WL 5090486, at *1 (D. Ariz. Nov. 3, 2010),

8 report and recommendation adopted, 2010 WL 5090472 (D. Ariz. Dec. 8, 2010). That

9 unique, individualized defense will further detract from the merits of the class claims and

10 defeats typicality and adequacy.

11 V. 12

Plaintiffs’ Request for Provisional Certification Is Moot. The last section in Plaintiffs’ Motion requests provisional certification of the Classes.

13 (Dkt. 3 at 12-13.) But as the cases they cite demonstrate, the purpose of provisional

14 certification at the outset of litigation is to extend any granted preliminary injunctive relief

15 to all putative class members. See Al Otro Lado v. Wolf, 952 F.3d 999, 1005 n.4 (9th Cir.

16 2020) (citing Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1041–43 (9th Cir.

17 2012)) (“We have approved provisional class certification for purposes of preliminary

18 injunction proceedings.”).

19

Here, the Court has denied Plaintiffs’ requests for preliminary injunctive relief and

20 no new requests are pending. (Dkt. 6 at 4; Dkt. 29.) Thus, the reason for provisional

21 certification no longer exists. Their request should be denied. See Alcantara v.

22 Archambeault, 2020 WL 4201665, at *3 n.1 (S.D. Cal. July 22, 2020) (denying motion for

23 provisional certification in light of denial of request for preliminary injunctive relief); id.,

24 ECF 83-1 at 42-43, filed June 12, 2020 (request for provisional certification).

25 VI. Conclusion.

26

For these reasons, Plaintiffs’ Motion for Class Certification should be denied.

27

28

17

Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 19 of 20

1

DATED this 12th day of August 2020.

2

STRUCK LOVE BOJANOWSKI & ACEDO, PLC

3

4

By /s/ Nicholas D. Acedo Daniel P. Struck

5

Rachel Love Nicholas D. Acedo

6

Jacob B. Lee 3100 West Ray Road, Suite 300

7

Chandler, Arizona 85226

8

Attorneys for Defendant-Respondent Kris Kline

9

10

MICHAEL BAILEY United States Attorney

11

District of Arizona

12

By /s/ William C. Staes

William C. Staes

13

Assistant United States Attorney

14

Attorneys for Defendants-Respondents

David Gonzales, Donald W. Washington,

15

and Michael Carvajal

16

17

18

19

20

21

22

23

24

25

26

27

28

18

Case 2:20-cv-00901-DJH-DMF Document 53 Filed 08/12/20 Page 20 of 20

1

CERTIFICATE OF SERVICE

2

I hereby certify that on August 12, 2020, I electronically transmitted the attached

document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a

3 Notice of Electronic Filing to the following CM/ECF registrants:

4

Alejandro Agustin Ortiz ortiza@aclu.org

Benjamin C. Calleros

bcalleros@perkinscoie.com

5

Emma A. Andersson

eandersson@aclu.org

Jean-Jacques Cabou

jcabou@perkinscoie.com

6

Margo R. Casselman

mcasselman@perkinscoie.com

Mathew R. Koerner

mkoerner@perkinscoie.com

7

Christine K. Wee

cwee@acluaz.org

Jared G. Keenan

jkeenan@acluaz.org

8

William Charles Staes

William.Staes@usdoj.gov

9

10

/s/ Nicholas D. Acedo

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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Case 2:20-cv-00901-DJH-DMF Document 53-1 Filed 08/12/20 Page 1 of 2
EXHIBIT 1

Case 2:20-cv-00901-DJH-DMF Document 53-1 Filed 08/12/20 Page 2 of 2

 
 Case 2:20-cv-00901-DJH-DMF Document 89 Filed 02/19/21 Page 1 of 27

1

SKC

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Claudia Romero-Lorenzo, et al.,

No. CV-20-00901-PHX-DJH (DMF)

10

Plaintiffs-Petitioners,

ORDER

11 v.

12 Brian Koehn, et al.,

13

Defendants-Respondents.

14

15

Plaintiffs-Petitioners Claudia Romero-Lorenzo, Tracy Ann Peuplie, James Tyler

16 Ciecierski, and Marvin Lee Enos, who are confined in CoreCivic’s Central Arizona

17 Florence Correctional Complex (CAFCC), brought this civil rights/habeas action pursuant

18 to 28 U.S.C. §§ 1331, 1346, 2201-02, and 2241. (Doc. 1).

19

In their “Class-Action Complaint for Declaratory and Injunctive Relief and Petition

20 for Writs of Habeas Corpus,” Plaintiffs-Petitioners allege on behalf of themselves and all

21 similarly situated individuals confined by CoreCivic that Defendants are failing to protect

22 them from exposure to COVID-19 in violation of their due process rights and their rights

23 to be free from “cruel and unusual punishment” under the Fifth and Eighth Amendments

24 to the U.S. Constitution. (Id.) Plaintiffs-Petitioners seek various forms of injunctive relief

25 aimed at preventing the spread of COVID-19 within CAFCC. (Id. at 26−27.) Plaintiffs-

26 Petitioners further request that, if expert recommendations for doing so “cannot be

27 achieved without reducing the detained population at CoreCivic,” the Court “issue writs of

28 habeas corpus on the ground that Plaintiffs’ continued detentions violate the Due Process

Case 2:20-cv-00901-DJH-DMF Document 89 Filed 02/19/21 Page 2 of 27

1 Clause or the Eighth Amendment, and order Plaintiffs’ release.” (Id. at 27.) Plaintiffs-

2 Petitioners also filed a Motion for Temporary Restraining Order (Doc. 2), which the Court

3 denied, and a Motion for Class Certification (Doc. 3), which the Court granted, certifying

4 two classes of individuals, a pre-trial class, whose claims arise under the Fifth Amendment,

5 and a post-conviction class, whose claims arise under the Eighth Amendment. (See

6 Doc. 69.)

7

Before the Court is a Joint Motion to Dismiss pursuant to Federal Rules of Civil

8 Procedure 12(b)(1) and 12(b)(6) filed by Defendants-Respondents’ Kris Kline, Warden of

9 the CAFCC, David Gonzales, U.S. Marshall for the District of Arizona, Donald

10 Washington, Director of the U.S. Marshall’s Service, and Michael Carvajal, Director of the

11 Federal Bureau of Prisons (BOP). (Doc. 48.) The Motion has been fully briefed.

12 (Docs. 64, 68.)

13

The Court will grant in part and deny in part the Joint Motion to Dismiss.

14 I. Legal Standards

15

A. Rule 12(b)(1)

16

Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense that

17 the court lacks jurisdiction over the subject matter of an entire action or of specific claims

18 alleged in the action. A motion to dismiss for lack of subject-matter jurisdiction pursuant

19 to Rule 12(b)(1) may facially attack the existence of subject-matter jurisdiction or may

20 challenge the truth of the alleged facts that would confer subject-matter jurisdiction on the

21 court. Renteria v. United States, 452 F. Supp. 2d 910, 919 (D. Ariz. 2006) (citing Thornhill

22 Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979)).

23

B. Rule 12(b)(6)

24

Dismissal of a complaint, or any claim within it, for failure to state a claim under

25 Federal Rule of Civil Procedure 12(b)(6) may be based on either a “‘lack of a cognizable

26 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’”

27 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting

28 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In determining

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Case 2:20-cv-00901-DJH-DMF Document 89 Filed 02/19/21 Page 3 of 27

1 whether a complaint states a claim under this standard, the allegations in the complaint are

2 taken as true and the pleadings are construed in the light most favorable to the nonmovant.

3 Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A

4 pleading must contain “a short and plain statement of the claim showing that the pleader is

5 entitled to relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not necessary; the

6 statement need only give the defendant fair notice of what . . . the claim is and the grounds

7 upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation

8 omitted). To survive a motion to dismiss, a complaint must state a claim that is “plausible

9 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. v.

10 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff

11 pleads factual content that allows the court to draw the reasonable inference that the

12 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

13

As a general rule, when deciding a Rule 12(b)(6) motion, the court looks only to the

14 face of the complaint and documents attached thereto. Van Buskirk v. Cable News

15 Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach Studios, Inc. v. Richard Feiner

16 & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). If a court considers evidence outside

17 the pleading, it must convert the Rule 12(b)(6) motion into a Rule 56 motion for summary

18 judgment. United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003). A court may,

19 however, consider documents incorporated by reference in the complaint or matters of

20 judicial notice without converting the motion to dismiss into a motion for summary

21 judgment. Id.

22 II. Plaintiffs-Petitioners’ Allegations

23

The 2019 novel coronavirus, known as COVID-19, is a viral illness that spreads

24 from person to person though respiratory droplets, close personal contact, and contact with

25 contaminated surfaces or objects. (Doc. 1 ¶ 28.) At the time of filing this action, there was

26 no vaccine or known medication to prevent the virus. (Id.) Once contracted, COVID-19

27 can cause severe damage to lung tissue, including permanent loss of respiratory capacity.

28 (Id. ¶ 29.) It can also damage tissues of other vital organs, including the liver and the heart,

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Case 2:20-cv-00901-DJH-DMF Document 89 Filed 02/19/21 Page 4 of 27

1 and the overall fatality rate for COVID-19 is up to 35 times greater than the fatality rate

2 for influenza, with individuals over the age of 50 at increased risk of experiencing serious

3 illness or death. (Id. ¶¶ 29−30.) Additionally, individuals with underlying medical

4 conditions, including lung disease, heart disease, liver or kidney disease, epilepsy,

5 hypertension, and other diseases causing compromised immune systems, face greater risks

6 and higher mortality rates from contracting COVID-19. (Id. ¶ 31.)

7

The risk of contracting COVID-19 is especially high in congregate environments,

8 where people live, eat, and sleep in close proximity, which has led to rapid spreads in cruise

9 ships, nursing homes, and correctional settings, including the Cook County Jail and Riker’s

10 Island, where the transmission rate for COVID-19 has been estimated to be among the

11 highest in the world. (Id. ¶ 36.)

12

On March 11, 2020, Arizona declared a public health emergency to prepare for,

13 respond to, and mitigate the spread of COVID-19. (Doc. 1 ¶ 1.) On March 19, 2020,

14 Arizona closed most businesses and gathering places by executive order, and on March 30,

15 2020, Arizona issued another executive order for individuals to remain six feet apart while

16 sharing space. (Id.) On May 5, 2020, three days before Plaintiffs filed this action, Arizona

17 recorded 33 deaths from COVID-19, its highest single day count, and the State had, by

18 then, identified 9,305 cases of infection, with 395 known deaths. (Id.)

19

Even though COVID-19 radically altered life for most people, such that social

20 distancing and wearing masks, gloves, and other personal protective equipment (PPE)

21 rapidly increased, federal inmates at CoreCivic’s CAFCC continued to be housed with up

22 to 14 people to a cell with bunkbeds stacked against a single wall. (Id. ¶ 2.) Additionally,

23 soap and disinfecting products were scarce, and detainees—noticing others around them

24 were increasingly showing symptoms—had to resort to wiping down communal property,

25 such as shared telephones, with t-shirts or watered-down menstrual pads. (Id.) At the time

26 Plaintiffs filed this action, 20 people housed at CAFCC had tested positive for COVID-19.

27 (Id.)

28

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1

COVID-19 has spread across the globe, and on March 26, 2020, the United States

2 led the world in confirmed cases. (Id. ¶ 3.) As of May 6, 2020, Arizona had 9,700 cases

3 and 426 deaths, with as many as 427 new cases added each day; however, the Arizona

4 Department of Health Services (ADHS) warned that a lack of testing could be causing an

5 undercount. (Id.) As of May 7, 2020, Arizona ranked last of all 50 states for COVID-19

6 tests per 1 million people. (Id.)1

7

According to public health experts, the best way to slow the spread of COVID-19

8 is through “social distancing,” which requires people to stay at least six feet apart. (Id.

9 ¶ 4.) Consequently, health experts have urged all American institutions, including

10 businesses, schools, places of worship, and legislatures, to reduce the number of people in

11 close proximity or to close down altogether, undertake aggressive sanitation measures, and

12 close off any areas used by a sick person. (Id.) This guidance is particularly important in

13 detention facilities, where the government controls every aspect of inmates’ ability to

14 maintain social distance and have adequate sanitation. (Id.)

15

Individuals confined at CAFCC have insufficient access to soap, masks, and gloves;

16 inability to social distance; and are housed in pods of up to 80 people, in cells of up to 14

17 people, and with bunk beds stacked against a single wall only several feet apart. (Id. at 6.)

18 Detention facilities, by their nature, require correctional and medical staff as well as

19 detainees awaiting trial or detained for only short periods of time to go in and out,

20 increasing the risk of spreading COVID-19, both to those within and outside the institution.

21 (Id. ¶ 7.) COVID-19 outbreaks in other institutions around the country demonstrate the

22 need for immediate intervention to protect Plaintiffs and all similarly situated individuals

23 housed at CAFCC. (Id. ¶ 8.)

24 . . . .

25 . . . .

26

27

1 As of February 3, 2021, the ADHS had recorded 767,379 cases of COVID-19 in

the state, with 13,576 deaths and a current rate of 10,674 cases per 100,000 people. See

28 https://www.azdhs.gov/preparedness/epidemiology-disease-control/infectious -disease-

epidemiology/covid-19/dashboards/index.php (last visited February 3, 2021).

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1 III. Discussion

2

Defendants-Respondents argue that this action should be dismissed in part under

3 Rule 12(b)(1) because the Court lacks jurisdiction over Plaintiffs-Petitioners’ writs of

4 habeas corpus under 28 U.S.C. § 2241. (Doc. 48 at 7−11.) Defendants-Respondents also

5 argue that Plaintiffs-Petitioners’ Fifth and Eighth Amendment claims should be dismissed

6 pursuant to Rule 12(b)(6) for failure to state a claim. (Id. at 11−17.)2

7

A. Jurisdiction

8

Defendants-Respondents argue that Plaintiffs-Petitioners’ prayer for relief seeking

9 writs of habeas corpus ordering their release due to the alleged unconstitutional conditions

10 of confinement at CAFCC should be dismissed for lack of subject-matter jurisdiction

11 because habeas corpus relief under 28 U.S.C. § 2241 is only available when challenging

12 the legality or duration of one’s confinement, not to remedy civil rights violations. (Id. at

13 7.) Defendants-Respondents further argue that, even if construed as an alternative form of

14 injunctive relief stemming from Plaintiffs-Petitioners’ alleged unconstitutional conditions

15 of confinement, Plaintiffs-Petitioners’ requests for release should be dismissed because the

16 Prison litigation Reform Act (PLRA) prevents this Court from granting prisoner release as

17 a remedy in a civil rights action. (Id. at 10−11.)

18

1. 28 U.S.C. § 2241

19

A federal district court is authorized to grant a writ of habeas corpus under 28 U.S.C.

20 § 2241 where a petitioner is “in custody under or by color of the authority of the United

21

22

23 2 Defendants-Respondents additionally argue that Plaintiffs-Petitioners’ Eighth
24 Amendment claims should be dismissed because the named representative for the post-
25 conviction class has been released from custody, making those claims moot, and their Fifth Amendment claims should be dismissed because the named representative for the pre-trial
26 detainee class has been sentenced and therefore can no longer assert Fifth Amendment
27 claims. (Doc. 48 at 6−7.) The Court already addressed and resolved these issues in its Order on class certification by ordering the substitution of other named representatives, as
28 needed, and the docket has been updated accordingly. (See Doc. 69 at 20−25.) The Court
therefore need not address these arguments here.

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Case 2:20-cv-00901-DJH-DMF Document 89 Filed 02/19/21 Page 7 of 27

1 States . . . in violation of the Constitution or laws or treaties of the United States.” 28

2 U.S.C. §§ 2241(c)(1), (3).

3

In general, “[h]abeas corpus proceedings are the proper mechanism for a prisoner

4 to challenge the ‘legality or duration’ of confinement. A civil rights action, in contrast, is

5 the proper method of challenging ‘conditions of . . . confinement.’” Badea v. Cox, 931

6 F.2d 573, 574 (9th Cir. 1991) (citation omitted). See also Muhammad v. Close, 540 U.S.

7 749, 750 (2004) (“Federal law opens two main avenues to relief on complaints related to

8 imprisonment: a petition for habeas corpus . . . and a complaint under . . . 42 U.S.C.

9 § 1983.”) Thus, [c]hallenges to the validity of any confinement or to particulars affecting

10 its duration are the province of habeas corpus; requests for relief turning on circumstances

11 of confinement may be presented in a § 1983 action.” (Id.) For this reason, when a federal

12 detainee believes the fact of his detention is unconstitutional, he may seek release by filing

13 a habeas corpus petition under 28 U.S.C. § 2241. See also Trinidad y Garcia v. Thomas,

14 683 F.3d 952, 956 (9th Cir. 2012) (“The writ of habeas corpus historically provides a

15 remedy to non-citizens challenging executive detention”). In contrast, when a federal

16 detainee or prisoner wishes to challenge the conditions in which he is being held, the usual

17 vehicle for asserting such a claim is a civil rights action.

18

The United States Supreme Court, however, has not explicitly or implicitly

19 foreclosed the use of habeas corpus for conditions-of-confinement claims. See Ziglar v.

20 Abbasi, 582 U.S. ___, 137 S. Ct. 1843, 1862 (2017) (leaving open the question of whether

21 alien detainees challenging “large-scale policy decisions concerning the conditions of

22 confinement imposed . . . might be able to challenge their confinement conditions via a

23 petition for a writ of habeas corpus”); Boumediene v. Bush, 553 U.S. 723, 792 (2008)

24 (declining to determine “the reach of the writ with respect to claims of unlawful conditions

25 of treatment or confinement”); Bell v. Wolfish, 441 U.S. 520, 526, n. 6 (1979) (leaving for

26

27

28

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Case 2:20-cv-00901-DJH-DMF Document 89 Filed 02/19/21 Page 8 of 27

1 “another day the question of the propriety of using a writ of habeas corpus to obtain review

2 of the conditions of confinement”).3

3

The Ninth Circuit has found as to a federal prisoner’s combined civil rights/habeas

4 action challenging the conditions—not the fact—of his confinement that dismissal of the

5 habeas petition was appropriate under the “traditional interpretation” that a “writ of habeas

6 corpus is limited to attacks upon the legality or duration of confinement.” Crawford v.

7 Bell, 599 F.2d 890, 891 (9th Cir. 1979) (citing Preiser, 411 U.S. at 484−86.) However,

8 since Crawford, other Ninth Circuit cases have not expressly foreclosed the ability of

9 courts to order habeas relief under 28 U.S.C. § 2241 in response to alleged civil rights

10 violations. See Badea, 931 F.2d at 574 (declining to address “whether Badea should have

11 sought relief through a habeas petition or a civil rights complaint” because his release on

12 parole made the issue moot); Nettles v. Grounds, 830 F.3d 922, 931-32 (9th Cir. 2016)

13 (observing that the PLRA reflects statutory intent to make § 1983 the exclusive remedy for

14 state inmate suits “about prison life,” but declining to address whether its holding applied

15 “to relief sought by prisoners in federal custody”). And Courts of Appeals in other circuits

16 have recognized the applicability of habeas relief to remedy unconstitutional conditions of

17 confinement caused by COVID-19. See Hope v. Warden York County Prison, 972 F.3d

18 310, 325 (3d Cir. 2020) (holding “Petitioners’ claim that unconstitutional conditions of

19 confinement at York and Pike require their release [was] cognizable in habeas.”); Wilson

20 v. Williams, 961 F.3d 829, 838 (6th Cir. 2020) (holding that “[b]ecause petitioners [sought]

21 release from confinement, ‘the heart of habeas corpus,’ . . . jurisdiction [was] proper under

22 § 2241.” (internal citation omitted)).

23

24

3 See also Brown v. Plata, 563 U.S. 493, 563 (2011) (Scalia, J., dissenting) (stating

25 that prisoner-release injunction was “the functional equivalent of 46,000 writs of habeas corpus” and release should be ordered only if it is determined “that the prisoner is suffering
26 from a violation of his constitutional rights, and that his release, and no other relief, will

27 remedy that violation. Thus, if the court determines that a particular prisoner is being denied constitutionally required medical treatment, and the release of that prisoner (and no

28 other remedy) would enable him to obtain medical treatment, then the court can order his

release”).

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1

In Ibarra-Perez v. Howard, a sister court in this District found “a strong argument”

2 that an immigration detainee’s habeas claims based on the respondents’ alleged “failure to

3 implement sufficient safety precautions related to COVID-19 at his detention facility” were

4 not cognizable under § 2241, but the district court did not ultimately decide the issue,

5 finding instead that the petitioner’s claims failed on the merits. 468 F. Supp. 3d 1156, 1170

6 (D. Ariz. 2020).4 Moreover, in Gebreweldi v. Barr, this Court recently found that a federal

7 immigration detainee could seek habeas relief based on exposure to COVID-19, opining

8 that, “in the absence of binding authority to the contrary, Petitioner’s claims are cognizable

9 under § 2241.” CV-20-00875-PHX-DJH (MTM), Doc. 37 at 14.

10

Defendants-Respondents argue that Gebreweldi is distinguishable because it

11 involved a civil immigration detainee, not, as here, classes of criminal detainees and

12 prisoners,5 and they point out that there is no Ninth Circuit precedent finding that a class

13 of federal criminal detainees or prisoners may seek writs of habeas corpus under § 2241

14 based on conditions of confinement due to the threat of COVID-19. (Doc. 68 at 3, 4.)

15 Further, Torres v. Milusnic, 472 F. Supp. 3d 713, 726 (C.D. Cal. 2020), a lone district court

16 case within the Ninth Circuit that found federal criminal detainees could seek habeas relief

17 under § 2241 based on alleged COVID-19 related conditions of confinement, is

18 distinguishable. In Torres, the court premised its § 2241 jurisdiction on the petitioners’

19

20 4 Notably, in Ibarra-Perez, the court’s reluctance to find the petitioner’s habeas
21 request cognizable under § 2241 was due, in part, to its reasoning that the appropriate

22 remedy for unconstitutional conditions of confinement is judicially mandated changes in those conditions or damages, not immediate release. See 468 F. Supp. 3d at 1169. This

23 reasoning is less applicable here, where Plaintiffs-Petitioners seek both injunctive relief to

24

remedy the alleged unconstitutional conditions at CAFCC, and, in the alternative, writs of habeas corpus, limited to the degree to which an expert determines that available changes

25 to current conditions would not adequately remedy the risk of harm of contracting COVID-

26 19 absent a reduction in the existing detainee/prisoner population. (See Doc. 1 at 27.)

27

5 Defendants-Respondents correctly note that civil immigration detainees do not

have all the statutory and regulatory avenues of relief that are otherwise available to

28 criminal detainees/prisoners, such at the Cares Act and the Bail Reform Act. (Doc. 64 at

4.)

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Case 2:20-cv-00901-DJH-DMF Document 89 Filed 02/19/21 Page 10 of 27

1 allegations that “no set of conditions of confinement under the present circumstances could

2 be constitutional,” making the very fact of their confinements unconstitutional. Id.

3 Plaintiffs-Petitioners in this action have not alleged that Defendants-Respondents cannot

4 cure the unconstitutional conditions of confinement through other forms of injunctive relief

5 short of a “highly expedited process” of class-wide habeas corpus release, as the petitioner

6 class sought in Torres. See id. Rather, it is undisputed that Plaintiffs-Petitioners seek writs

7 of habeas corpus only to the extent that other forms of relief may prove inadequate to

8 remedy the alleged unconstitutional conditions at CAFCC. Because Plaintiffs-Petitioners

9 do not actually allege that the unconstitutional conditions in this action cannot be cured

10 through other forms of injunctive relief short of release, their claims do not challenge the

11 very “fact or duration” of their confinements.

12

At most, the Court’s review of relevant cases shows that there is, as yet, no definitive

13 precedent in this Circuit establishing that the Court has jurisdiction under § 2241 over

14 Plaintiffs-Petitioners’ alternative requests for writs of habeas corpus based solely on their

15 alleged unconstitutional conditions of confinement. The Court need not ultimately

16 determine, however, whether it has jurisdiction under § 2241 to issue writs of habeas

17 corpus on this basis because the Court has jurisdiction to order injunctive relief for

18 constitutional violations—including targeted reductions in the inmate population—under

19 28 U.S.C. § 1331, which Plaintiffs-Petitioners have also asserted as a statutory basis for

20 their claims. (See Doc. 1 ¶ 17.)

21

2. 28 U.S.C. § 1331

22

“Section 1331 provides jurisdiction for the exercise of the traditional powers of

23 equity in actions arising under federal law. No more specific statutory basis is required.”

24 Simmat v. United States Bureau of Prisons, 413 F.3d 1225, 1232 (10th Cir. 2005); see also

25 Bell v. Hood, 327 U.S. 678, 684 (1946) (recognizing the “ jurisdiction of federal courts to

26 issue injunctions to protect rights safeguarded by the Constitution”).

27

As this Court noted in Gebreweldi, even if the Court lacks jurisdiction under § 2241,

28 Plaintiffs-Petitioners’ claims for injunctive relief “remain cognizable for review because

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Case 2:20-cv-00901-DJH-DMF Document 89 Filed 02/19/21 Page 11 of 27

1 [they] ha[ve] alternatively pleaded a cause of action under the Fifth [and Eighth]

2 Amendment[s] for injunctive and declaratory relief, over which the Court would have

3 jurisdiction under 28 U.S.C. § 1331, as an equitable cause of action under the Constitution.”

4 CV-20-00875-PHX-DJH (MTM), Doc. 37 at 14 (citing Ziglar, 137 S. Ct. at 1865

5 (observing that alien detainees challenging their conditions of confinement could seek “an

6 injunction requiring the warden to bring his prison into compliance with the regulations

7 discussed above [] or some other form of equitable relief”); Swann v. Charlotte-

8 Mecklenburg Bd. of Educ., 402 U.S. 1, 15-16 (1971) (“Once a right and a violation have

9 been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad,

10 for breadth and flexibility are inherent in equitable remedies.”); Sierra Club v. Trump, 929

11 F.3d 670, 694 (9th Cir. 2019) (federal courts have equitable authority to grant injunctive

12 relief “against federal officials violating federal law”); Stone v. City & Cnty. of San

13 Francisco, 968 F.2d 850, 861 (9th Cir. 1992) (“Federal courts possess whatever powers

14 are necessary to remedy constitutional violations because they are charged with protecting

15 these rights.”)).

16

In addition to the above cases, shortly after briefing on Defendants-Respondents’

17 Motion to Dismiss was complete, the Ninth Circuit found in the civil immigration context

18 that federal courts have the authority under § 1331 to order preliminary injunctive relief,

19 including the reduction of a detention facility’s population, when such relief is required to

20 remedy unconstitutional conditions of confinement associated with the risks of contracting

21 COVID-19. Roman v. Wolf, 977 F.3d 935 (9th Cir. 2020). In Roman, a class of civil

22 immigration detainees alleged they were being subjected to unconstitutional conditions of

23 confinement due to the risk of contracting COVID-19.6 Id. at 938. As here, the class

24 likewise sought declaratory, injunctive, and habeas corpus relief. Id. at 939. The district

25 court in Roman granted preliminary injunctive relief, which included ordering the

26

27 6 Because Roman involved civil immigration detainees, the claims were brought
28 only under the Fifth Amendment, not under both the Fifth and Eighth Amendments relied
upon by the two classes of federal criminal detainees and prisoners in this action.

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Case 2:20-cv-00901-DJH-DMF Document 89 Filed 02/19/21 Page 12 of 27

1 reduction of the facility’s detainee population to a level that would allow appropriate social

2 distancing in compliance with the Center for Disease Control (CDC) guidance for reducing

3 the spread of COVID-19. Id. Notably, the injunction “left to the Government’s discretion

4 whether to achieve the requisite population reduction by deporting selected detainees,

5 transferring selected detainees to other facilities, or releasing selected detainees with

6 appropriate conditions of release” and “likewise allowed the Government to determine

7 which detainees to release, deport, or transfer.” Id. On appeal, the Ninth Circuit declined

8 to reach the government’s argument that the district court lacked jurisdiction to order

9 habeas corpus relief, finding that the plaintiffs’ “action for declaratory and injunctive relief

10 independently provided the district court jurisdiction to hear [their] challenges and

11 authority to grant the types of relief that [they] sought.” Id. at 941. It reasoned that because

12 the plaintiffs’ claims arose under the Constitution, the district court had subject-matter

13 jurisdiction to order appropriate injunctive relief under 28 U.S.C. § 1331 “irrespective of

14 the accompanying habeas petition” and “an implied cause of action exists for Plaintiffs to

15 challenge allegedly unconstitutional conditions of confinement.” Id. at 941−42 (citing

16 cases). Of particular relevance here, the Ninth Circuit found that “the district court’s power

17 to grant injunctive relief included the authority to order a reduction in population, if

18 necessary to remedy a constitutional violation.” Id. at 942 (citing Plata, 563 U.S. at

19 500−502, 545 (affirming a three-judge district court’s findings that overcrowding was the

20 primary cause of constitutional violations in California prisons and that a reduction in the

21 prison population, even if it required the release of some prisoners, was an appropriate

22 remedy)).

23

Even though Roman supports that federal courts have the authority to order

24 constitutionally-required reductions in the civil detainee/prisoner population of a given

25 facility by various means, including through transfers, home confinement, and release, it is

26 not dispositive of the Court’s authority to order class-wide release of criminal detainees

27 and prisoners in this action. (Doc. 1 at 27 ¶ 6.) First, Roman did not expressly order the

28 plaintiffs’ release to reduce the detainee population; instead, it gave discretion to the

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Case 2:20-cv-00901-DJH-DMF Document 89 Filed 02/19/21 Page 13 of 27

1 government to determine the means by which it would achieve such a reduction. Second,

2 Roman ordered only preliminary injunctive relief, not final relief, and to the extent it found

3 that federal courts have the authority to order final relief in the form of release, it relied on

4 Plata, 563 U.S. at 512, which specifically involved a three-judge district court, consistent

5 with PLRA requirements for ordering such relief in cases involving prisoners. Therefore,

6 to the extent Plaintiffs-Petitioners specifically seek their release, the Court must determine

7 whether the PLRA permits the Court to order such relief.

8

3. The PLRA

9

The PLRA sets forth strict guidelines whereby courts may order injunctive relief

10 regarding prison conditions. As relevant to Plaintiffs-Petitioners alternative requests for

11 release in this action, these include that “[i]n any civil action with respect to prison

12 conditions, no court shall enter a prisoner release order unless--

13

(i) a court has previously entered an order for less

14

intrusive relief that has failed to remedy the deprivation of the

Federal right sought to be remedied through the prisoner

15

release order; and

16

(ii) the defendant has had a reasonable amount of time

17

to comply with the previous court orders.

18 18 U.S.C. § 3626(a)(3)(A) (emphasis added).7 Additionally, § 3626(a)(3)(B) provides that

19 “a prisoner release order shall be entered only by a three-judge court,” which may do so

20 only upon finding ‘clear and convincing evidence that--

21

(i) crowding is the primary cause of the violation of a Federal

22

right; and

23

(ii) no other relief will remedy the violation of the Federal right.

24

25

26

27

7 In this context, “the term ‘prisoner’ means any person subject to incarceration,

detention, or admission to any facility who is accused of, convicted of, sentenced for, or

28 adjudicated delinquent for, violations of criminal law or the terms and conditions of parole,

probation, pretrial release, or diversionary program.” 18 U.S.C. § 3626(g)(3).

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Case 2:20-cv-00901-DJH-DMF Document 89 Filed 02/19/21 Page 14 of 27

1 Id. § 3626(a)(3)(B) & (F) (emphasis added); see Plata, 563 U.S. at 512 (recognizing that

2 “[u]nder the PLRA, only a three-judge court may enter an order limiting a prison

3 population”). For this reason, “[a] party seeking a prisoner release order in Federal court

4 shall file with any request for such relief, a request for a three-judge court and materials

5 sufficient to demonstrate that the requirements of subparagraph (A) have been met.” 18

6 U.S.C. § 3626(a)(3)(C).

7

Plaintiffs-Petitioners’ prayer for relief is facially consistent with the first of these

8 provisions, requiring, in effect, that orders of release be a last resort to cure constitutional

9 violations, to be used only after all other lesser measures of injunctive relief have proven

10 ineffective. See 28 U.S.C. § 3626(a)(3)(F). In their Complaint/Petition, Plaintiffs-

11 Petitioners first seek an injunction mandating that Defendants-Respondents take specific

12 corrective measures to cure the alleged unconstitutional conditions at CAFCC with respect

13 to the risk of contracting COVID-19. (Doc. 1 at 26−27 ¶ 5.) These measures include

14 ensuring adequate social distancing for all detainees and staff; access to hygiene supplies;

15 regular cleaning of touched surfaces; adequate PPE; quarantining of staff and inmates

16 exposed to COVID-19; and the implementation of testing procedures “consistent with CDC

17 and other public health guidance.” (Id.) Only in the event an expert’s recommendations

18 for relief “cannot be achieved without reducing the detained population,” do Plaintiffs-

19 Petitioners seek “writs of habeas corpus on the ground that Plaintiff’s continued detentions

20 violate the Due Process Clause or the Eighth Amendments.” (Id. at 27 ¶ 7.)

21

Plaintiffs-Petitioners have nonetheless failed to acknowledge or comply with the

22 PLRA’s other requirements that, in a prisoner civil rights action challenging conditions of

23 confinement, only a three-judge court may issue a release order and that a party seeking

24 such an order in federal court must file a specific request to convene a three-judge court,

25 along with materials showing that the preliminary grounds for making such a request have

26 been met. See 18 U.S.C. § 3626(a)(3)(C); Plata, 563 U.S. at 512. Instead, Plaintiffs-

27 Petitioners argue only that the PLRA does not apply here. (Doc. 64 at 18.) This is because,

28 they argue, their alternative requests for release are “cognizable under habeas,” and the

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Case 2:20-cv-00901-DJH-DMF Document 89 Filed 02/19/21 Page 15 of 27

1 PLRA by its own terms does not apply to “habeas corpus proceedings challenging the fact

2 or duration of confinement.” (Id. (citing 18 U.S.C. § 3626(g)).)

3

These arguments are unpersuasive. First, the PLRA does not, as Plaintiffs-

4 Petitioners imply, exempt from its statutory reach all actions in which criminal

5 detainees/prisoners seek their release from custody. Instead, it is clear from the above-

6 cited statutory provisions that the PLRA squarely applies to requests for release “in any

7 civil action with respect to prison conditions,” as is the case here. See 18 U.S.C.

8 § 3626(a)(3)(A); see also § 3626(g)(4) (“the term ‘prisoner release order’ includes any

9 order . . . that has the purpose or effect of reducing or limiting the prison population, or that

10 directs the release . . . of prisoners”). True, the PLRA distinguishes between such actions

11 and more traditional habeas corpus actions, stating that the term “civil action with respect

12 to prison conditions” means “any civil proceeding arising under Federal law with respect

13 to the conditions of confinement . . . , but does not include habeas corpus proceedings

14 challenging the fact or duration of confinement in prison.” Id. § 3626(g)(2). But as

15 previously discussed, here, Plaintiffs-Petitioners do not claim there is no set of conditions

16 that would cure the alleged unconstitutional conditions at CAFCC apart from their release,

17 such that they challenge the “fact or duration” of their confinements. For this reason, the

18 Court’s jurisdiction to order Plaintiffs-Petitioners’ release as an alternative form of relief,

19 whether invoked under § 1331 or § 2241, remains squarely in the context of a “civil action

20 with respect to prison conditions” to which the requirements of the PLRA apply. 18 U.S.C.

21 §§ 3626(a)(3).

22

Absent any authority to the contrary, the PLRA applies to all the claims and requests

23 for relief in this action. Plaintiffs-Petitioners, however, have not requested a three-judge

24 panel or otherwise shown that the preliminary requirements under the PLRA, 18 U.S.C.

25 § 3626(a)(3)(A), have been met as to Plaintiffs-Petitioners’ alternative request for release.

26 This Court therefore does not have jurisdiction to grant such relief.

27

The Court will therefore grant Defendants-Respondents’ Motion to Dismiss as to

28 Plaintiffs-Petitioners’ claims to the extent they seek writs of habeas corpus under 28 U.S.C.

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Case 2:20-cv-00901-DJH-DMF Document 89 Filed 02/19/21 Page 16 of 27

1 § 2241 or release under 28 U.S.C. § 1331 and will dismiss these claims without prejudice

2 for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1). Further, in the absence of

3 any cognizable petitions for habeas corpus, the Court will hereinafter refer to Plaintiffs-

4 Petitioners only as Plaintiffs and Defendants-Respondents solely as Defendants.

5

B. Eighth Amendment Claims (Post-Conviction Class)

6

1. Legal Standard

7

The Eighth Amendment’s prohibition against cruel and unusual punishment

8 protects prisoners from inhumane conditions of confinement. Morgan v. Morgensen, 465

9 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 847 (1994) and

10 Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).8 While conditions of confinement may

11 be, and often are, restrictive and harsh, they must not involve the wanton and unnecessary

12 infliction of pain. Morgan, 465 F.3d at 1045. Prison officials have a duty to ensure that

13 prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and

14 personal safety. See Farmer, 511 U.S. at 832; Keenan v. Hall, 83 F.3d 1083, 1089 (9th

15 Cir. 1996); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982).

16

To state an Eighth Amendment conditions-of-confinement claim, plaintiffs must

17 meet a two-part test. First, the plaintiff must make an “objective” showing that the alleged

18 deprivation is “sufficiently serious.” Farmer, 511 U.S. at 834. To be sufficiently serious

19 to form the basis of an Eighth Amendment violation, “a prison official’s act or omission

20 must result in the denial of ‘the minimal civilized measure of life’s necessities.’” Id. (citing

21 Rhodes, 452 U.S. at 347). Second, the plaintiff must make a “subjective” showing that the

22 prison official acted with a “sufficiently culpable state of mind”; that is, that the defendant

23 acted with deliberate indifference to the plaintiff’s health or safety. Farmer, 511 U.S. at

24 834. To show deliberate indifference, the plaintiff must establish that the defendant knew

25 of and disregarded an excessive risk to inmate health or safety. Id. at 837. To satisfy the

26

27 8 “[T]he Eighth Amendment’s Cruel and Unusual Punishment Clause . . . applies to
28 convicted criminals while the [the Fifth Amendment’s Due Process Clause] applies to pretrial and immigration detainees.” Ziglar, 137 S. Ct. at 1877 (Breyer, J., dissenting).

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Case 2:20-cv-00901-DJH-DMF Document 89 Filed 02/19/21 Page 17 of 27

1 knowledge component, “the official must both be aware of facts from which the inference

2 could be drawn that a substantial risk of serious harm exists, and he must also draw the

3 inference.” Id. Deliberate indifference is a higher standard than negligence or lack of

4 ordinary due care for the prisoner’s safety. Id. at 835.

5

Prison officials may avoid Eighth Amendment liability for the harm suffered by an

6 inmate if they show that: (1) “they did not know of the underlying facts indicating a

7 sufficiently substantial danger and that they were therefore unaware of a danger”; (2) “they

8 knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts

9 gave rise was insubstantial or nonexistent”; or (3) they responded reasonably to the risk.

10 Id. at 844.

11

2. Discussion

12

Defendants do not dispute that, as alleged, the risk to Plaintiffs of contracting

13 COVID-19 at CAFCC, particularly among detainees and prisoners with other serious

14 medical conditions, is sufficient to constitute a serious medical need. They argue, however,

15 that the Court should dismiss Plaintiffs’ Eighth Amendment challenge for failure to state a

16 claim because Plaintiffs have failed to allege any facts from which to infer “that

17 Defendants, through any policy, practice, or custom implemented at CAFCC, have acted

18 with subjective deliberate indifference” to the risks of serious harm posed by COVID-19.

19 (Doc. 48 at 11.)

20

Defendants point out that the allegations in the Complaint, together with additional

21 facts appropriate for consideration here because they are set forth in materials cited by the

22 Complaint, show that Defendants have enacted policies at CAFCC to protect detainees and

23 prisoners from COVID-19. (Id.) These include that CAFCC requires detainees and

24 prisoners to be quarantined for 14 days upon admission; CAFCC staff provide masks and

25 require detainees and prisoners to wear masks when outside their pods; CAFCC requires

26 staff to wear masks; CAFCC staff screen all employees upon entry, and those conducting

27 the screening are required to wear appropriate PPE; CAFCC has adopted policies

28 consistent with CDC guidelines for cleaning and disinfecting surfaces; CAFCC routinely

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1 encourages staff and inmates to practice social distancing, including at regular town hall

2 meetings and through materials posted at the facility; CAFCC has suspended visitation,

3 purchased COVID-19 test kits, secured additional stores of PPE, and communicated best

4 practices for personal hygiene; CAFCC staff have made soap and hygiene supplies readily

5 available; CAFCC has taken measures to ensure that detainees and prisoners have access

6 to medical care; and the facility has implemented processes to detect and track COVID-19;

7 to collect, analyze, and report data on individuals exhibiting signs of the virus; and to

8 segregate infected individuals. (Id. at 12−13.)

9

Defendants argue based on Plaintiff’s direct and indirect acknowledgement of these

10 measures in the Complaint, that the mere allegation that Defendants’ efforts are

11 “inadequate to stop the virus from spreading” (see Doc. 1 ¶ 61) does not suffice to show

12 deliberate indifference because it says nothing about the officials’ state of mind,” and

13 Plaintiffs cannot state an Eighth Amendment claim absent facts showing that Defendants

14 “subjectively believe the measures they are taking are inadequate.” (Id. at 13 (quoting

15 Valentine v. Collier, 956 F.3d 797, 802 (5th Cir. 2020)).) Defendants further argue that

16 Plaintiffs’ allegations of non-compliance with the above policies—such as inadequate

17 cleaning, infrequent sanitation of high-touch areas, non-compliance with social distancing,

18 inconsistent mask wearing by staff, the inability to practice social distancing at all times,

19 and the lack of uniform enforcement of COVID-19 policies at CAFCC—are insufficient

20 to show deliberate indifference because “these allegations ‘at most show that [D]efendants’

21 response was imperfect,’ which ‘is not enough to establish deliberate indifference.’” (Id.

22 (quoting Cameron v. Bouchard, 815 F. App’x 978, 986 (6th Cir. 2020) (unreported)).)

23

Plaintiffs argue in their Response that they have alleged sufficient facts to establish

24 deliberate indifference. (Doc. 64 at 14−15.) As to the knowledge component of this

25 standard, they argue that the allegations in the Complaint are sufficient to show that the

26 risk of contracting COVID-19 in the incarceration context is obvious. (Id. at 14.) They

27 point out that the Complaint details how both the President of the United States and the

28 Governor of Arizona declared states of emergency in response to the COVID-19 pandemic;

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1 governments, businesses, and courts have implemented responsive measures globally,

2 nationally, and in Arizona; COVID-19 has caused millions of illnesses and deaths

3 worldwide; and, at the time Plaintiffs filed this lawsuit, 20 inmates at CAFCC had tested

4 positive for COVID-19. (Doc. 64 at 14; see Doc. 1 ¶¶ 1−2, 39−43.) Plaintiffs also point

5 to allegations in the Complaint that the CDC has issued warnings of facility-wide COVID-

6 19 outbreaks in nursing homes, where half of those who tested positive for COVID-19

7 were either asymptomatic or pre-symptomatic, thereby unknowingly contributing to the

8 spread of COVID-19. (Doc. 1 ¶ 37.)

9

Plaintiffs have also alleged known conditions of confinement at CAFCC that

10 allegedly place them at an unreasonable risk of contracting COVID-19. They allege, for

11 instance, that they are housed in pods of up to 80 people and in cells of up to 14 people,

12 where they cannot maintain adequate social distancing; their beds are stacked close

13 together; and they must stand close together when lining up for meals, medical

14 appointments, and to use communal telephones, in contravention of CDC guidelines for

15 proper distancing within correctional facilities. (Id. ¶¶ 1−4, 28, 46−50.) Likewise,

16 Plaintiffs allege having inadequate disinfectants and cleaning supplies; insufficient masks,

17 leading to mask sharing or non-compliance with mask requirements; a lack of COVID-19

18 testing or checks for COVID-19 symptoms among prisoners and detainees; and the failure

19 to test or separate those showing active symptoms of COVID-19, also in contravention of

20 CDC guidelines. (Id. ¶¶ 4, 37, 55−61.)

21

These allegations, taken as true, are sufficient to infer that Defendants and CAFCC

22 staff know that prisoners face a substantial risk of serious harm from exposure to COVID-

23 19 while confined in a congregate setting. The allegations are likewise sufficient to show

24 that the policies in place within CAFCC have either been insufficient to address that risk

25 or have been inconsistently enforced, such that prisoners are nonetheless being subjected

26 to conditions of confinement that pose a serious risk to their health.

27

As Defendants argue, however, these alleged deficiencies say nothing about

28 Defendants’ subjective intent. Therefore, absent additional allegations from which to infer

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1 a culpable state of mind, they are insufficient to demonstrate the “wanton and unnecessary

2 infliction of pain.” See Farmer, 511 U.S. at 834 (to show an Eighth Amendment violation

3 “a prison official must have a ‘sufficiently culpable state of mind,’” because “only the

4 unnecessary and wanton infliction of pain implicates the Eighth Amendment.”) (quoting

5 Wilson v. Seiter, 501 U.S. 294, 297 (1991)).

6

To be sure, it is deliberately indifferent for prison officials to intentionally disregard

7 a prisoner’s known serious medical needs; likewise, it is deliberately indifferent to “ignore

8 a condition of confinement that is sure or very likely to cause serious illness and needless

9 suffering the next week or month or year.” Helling v. McKinney, 509 U.S. 25, 33 (1993)

10 (non-smoking prisoner with health issues stated an Eighth Amendment claim based on

11 allegedly being forced to share a cell with a prisoner who smoked 5 packs of cigarettes a

12 day); see also Hutto v. Finney, 437 U.S. 678, 682–83, (1978) (cited in Helling) (Eighth

13 Amendment violation where 4−11 prisoners were placed for indeterminant periods of time

14 in 8 x 10 cells without separating out those with known infectious diseases, and their

15 mattresses were “jumbled together each morning, then returned to the cells at random in

16 the evening.”)

17

Unlike in the above-cited cases, however, the allegations in Plaintiffs’ Complaint

18 and the materials referenced therein do not demonstrate that Defendants have simply

19 ignored the risks associated with the spread of COVID-19. Nor have they, as in Hutto,

20 failed to make any attempts to separate and quarantine infected prisoners from those in the

21 general prison population. See 437 U.S. at 682–83. Instead, the Complaint acknowledges

22 that individuals transferred to CAFCC are quarantined for 14 days; are given masks; are

23 required to wear masks when outside their pods; and that Defendants have implemented

24 numerous policies for managing the spread of COVID-19. (Doc. 1 ¶¶ 49−54, 61.) These

25 same allegations also identify various insufficiencies in these measures, such as that the

26 14-day quarantine period does not properly account for an up to 14-day incubation period

27 or for pre-symptomatic cases of COVID-19, and that masks have not always been

28 available, are too thin, and are swapped between inmates when an inmate is required to

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1 wear a mask to leave the pod. (See id.) But mere inadvertence and negligence in carrying

2 out protective measures, as are alleged here, are not enough to show deliberate indifference.

3 See Wilson, 501 U.S. at 297 (allegations of “inadvertent failure to provide adequate medical

4 care,” or mere negligence “simply fail to establish the requisite culpable state of mind”).

5 “A prison official’s duty under the Eighth Amendment is to ensure ‘reasonable safety,’”

6 not to avert all possible harm. Farmer, 511 U.S. at 844 (internal citations omitted).

7

Plaintiff’s citation to Hope v. Pelzer, 536 U.S. 730, 738 (2002) for the proposition

8 that the requisite culpable state of mind may be inferred where, as here, the potential for

9 serious harm from contracting COVID-19 is obvious (Doc. 64 at 15), does not compel a

10 different conclusion. Hope involved a prison disciplinary incident in which officers

11 shackled a non-compliant work-crew prisoner to a hitching post, where he remained

12 shirtless and outside in the hot sun for 7 hours, and the officers taunted him and gave him

13 water only once but no bathroom breaks. Hope, 536 U.S. at 734−35. Under these

14 circumstances, the Supreme Court found that it could infer a culpable state of mind on the

15 parts of the officers because the overt cruelty and risk of harm to a prisoner forced to remain

16 shackled in this way was “obvious.” (Id. at 738.) Plaintiffs, however, have not alleged any

17 such willful, deliberate exposure of prisoners to a substantial risk of serious harm by

18 Defendants or prison staff; nor have they alleged any other facts suggestive of a sufficiently

19 culpable state of mind to give rise to an equivalent Eighth Amendment claim.

20

Plaintiff’s arguments based on the “obviousness” of the risk are also reminiscent of

21 the Supreme Court’s finding in Canton v. Harris, that, in the failure-to-train context, “the

22 need for more or different training [may be] so obvious, and the inadequacy so likely to

23 result in the violation of constitutional rights, that the policymakers of the city can

24 reasonably be said to have been deliberately indifferent to the need.” 489 U.S. 378, 390

25 (1989). But the Supreme Court in Farmer specifically rejected Canton’s standard for

26 showing deliberate indifference by prison officials in the Eighth Amendment conditions of

27 confinement context. 511 U.S. at 841. The Court reasoned that showing a city’s mental

28 state is nearly impossible, and so the plaintiffs’ Eighth Amendment claim had to rely on

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1 more objective indicia of indifference. Id. But with individual prison officials, for whom

2 subjective intent is more readily discernable, parties may not rely on “obvious” needs for

3 new policies to demonstrate deliberate indifference. Id. at 841–42. In other words, it is

4 not enough for Plaintiffs to allege that Defendants’ current COVID-19 policies show an

5 obvious need for change. Deliberate indifference here requires a greater showing of actual

6 subjective intent, which is lacking from the Complaint.

7

Absent such a showing, Plaintiff’s allegations fail to establish the required “culpable

8 state of mind” to state an Eighth Amendment claim. Farmer, 511 U.S. at 834; Wilson v.

9 Seiter, 501 U.S. at 297. Accordingly, the Court will grant Defendants’ Motion to Dismiss

10 as to Plaintiff’s Eighth Amendment deliberate indifference claims and will dismiss these

11 claims from this action.

12

C. Fifth Amendment Claims (Pre-Trial Class)

13

1. Legal Standard

14

The Fifth Amendment’s Due Process Clause prohibits the federal government from

15 depriving “any ‘person . . . of . . . liberty . . . without due process of law,’” and its protections

16 extend “to all ‘persons’ within the United States.” Zadvydas v. Davis, 533 U.S. 678, 690,

17 693 (2001).

18

(a) Conditions of Reasonable Health and Safety

19

Freedom from physical restraint falls at the core of the liberty interest protected

20 from arbitrary governmental action by the Due Process Clause. Youngberg v. Romeo, 102

21 457 U.S. 307, 316 (1982). The government deprives an individual of this substantive

22 liberty interest without due process when it restrains his “freedom to act on his own

23 behalf—through incarceration, institutionalization, or other similar restraint of personal

24 liberty—” thereby “render[ing] him unable to care for himself, and at the same time fails

25 to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and

26 reasonable safety.” DeShaney v. Winnebago County Dept. of Social Services, 489 U.S.

27 189, 200 (1989).

28

In the Ninth Circuit, the government has violated its duty under the Due Process

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1 Clause to provide a detainee “conditions of reasonable health and safety” when:

2

(i) [It] made an intentional decision with respect to the conditions

3

under which the plaintiff was confined; (ii) those conditions put

the plaintiff at substantial risk of suffering serious harm; (iii) the

4

[government] did not take reasonable available measures to abate

5

that risk, even though a reasonable official in the circumstances

would have appreciated the high degree of risk involved . . . ; and

6

(iv) by not taking such measures, the [government] caused the

7

plaintiff’s injuries.

8 Roman, 977 F.3d at 943 (alternations in original) (quoting Gordon v. County of Orange,

9 888 F.3d 1118, 1125 (9th Cir. 2018) (discussing the “objective deliberate indifference

10 standard”)).

11

“With respect to the third element, the [government’s] conduct must be objectively

12 unreasonable, a test that will necessarily ‘turn[] on the facts and circumstances of each

13 particular case.’” Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016)

14 (en banc) (second alteration in original) (quoting Kingsley v. Hendrickson, 576 U.S. 389,

15 397 (2015)). Objective unreasonableness is “more than negligence but less than subjective

16 intent—something akin to reckless disregard”; “mere lack of due care” is not enough.

17 Gordon, 888 F.3d at 1125 (quoting Castro, 833 F.3d at 1071). “To satisfy the fourth

18 element, a plaintiff need only prove a ‘sufficiently imminent danger[],’ because a ‘remedy

19 for unsafe conditions need not await a tragic event.’” Roman, 977 F.3d at 943 (alternation

20 in original) (quoting Helling, 509 U.S. at 33-34).

21

(b) Punitive Conditions

22

Where pretrial detention is incident to legitimate government objectives, a detainee

23 has a protected liberty interest in freedom from punishment absent an adjudication of guilt.

24 Bell, 441 U.S. at 534. The government deprives a detainee of this substantive liberty

25 interest without due process when it detains him or her under conditions that “amount to

26 punishment.” Bell, 441 U.S. at 535. Conditions resulting in harm or “disability” amount

27 to punishment if (1) they are expressly imposed for the purpose of punishment, (2) they are

28 not “rationally related to a legitimate nonpunitive governmental purpose,” or (3) they

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1 “appear excessive in relation to” a legitimate governmental purpose. Bell, 441 U.S. at 538-

2 39, 561; see also Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct. 2466, 2473 (2015)

3 (government action amounts to punishment if it is “objectively unreasonable”); Vazquez v.

4 County of Kern, 949 F.3d 1153, 1163 (9th Cir. 2020).

5

2. Discussion

6

Defendants argue that Plaintiffs also fail to state Fifth Amendment Due Process

7 claims on behalf of the pre-trial detainee class. (Doc. 48 at 14−17.) They argue that this

8 is because the array of policies they have implemented at CAFCC to protect detainees from

9 the spread of COVID-19 are not, themselves, objectively deliberately indifferent and do

10 not fall below CDC guidelines. (Id. at 15−16.) They also argue that, given these policies,

11 the conditions of confinement at CAFCC are also rationally related to and not excessive in

12 relation to the government’s legitimate interests in ensuring the presence of pre-trial

13 detainees at future court proceedings and safe-guarding the community and therefore do

14 not amount to punishment. (Id. at 16−17.)

15

Plaintiffs argue in response that the Complaint alleges sufficient facts to show both

16 that Defendants do not take reasonable available measures to abate the risks to detainees

17 of contracting COVID-19 and that the resulting conditions at CAFCC are thereby excessive

18 in relation to the purpose of confinement, resulting in punishment. (Doc. 64 at 6−11.)

19

As an initial matter, Plaintiffs’ asserted Fifth Amendment claims do not fail simply

20 because, as Defendants argue, Plaintiffs have not alleged that the policies at CAFCC are,

21 themselves, objectively unreasonable. Instead, “[a] policy, practice, or custom may be

22 inferred from widespread practices or evidence of repeated constitutional violations for

23 which the errant officials are not reprimanded.” Menotti v. City of Seattle, 409 F.3d 1113,

24 1147 (9th Cir. 2005) (citing Nadell v. Las Vegas Metro. Police Dep’t., 268 F.3d 924, 929

25 (9th Cir. 2001)). When assessing liability for an improper custom or practice, courts should

26 look at whether the practice at issue is one of sufficient duration, frequency, and

27 consistency such that the alleged conduct may be the “traditional method of carrying out

28 policy.” Trevino v. Gates, 99 F.3d 991, 918 (9th Cir. 1996).

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1

Here, Plaintiffs have alleged that, in practice, detainees are placed into cells of up

2 to 14 people without adequate social distancing or adequate cleaning supplies, all sharing

3 a single toilet and only a few telephones and showers; they must stand close together to

4 wait for meals, medical appointments, and to use communal telephones; they are not

5 provided sufficient masks or are asked to share masks; they have been exposed to numerous

6 people showing COVID-19 symptoms, including some who were placed in quarantine, but

7 not tested, and then returned from quarantine while still symptomatic; and only a small

8 number of detainees have been tested for COVID-19 or checked for symptoms, with even

9 those showing symptoms not receiving medical care or tests. (See Doc. 1 ¶¶ 46−50.

10 53−59.) These allegations, based on six declarations attesting to the same or similar

11 treatment and conditions, are sufficient to infer widespread practices and customs bearing

12 on the spread of COVID-19 at CAFCC and to infer that these practices are “the traditional

13 method[s] of carrying out policy.” These allegations therefore satisfy the requirement that,

14 to state a Fifth Amendment claim, Plaintiffs must allege that Defendants made intentional

15 decisions respecting the conditions under which detainees are confined. Likewise, given

16 the alleged serious health risks associated with the spread of COVID19, it is possible to

17 infer that these same alleged conditions have placed detainees at substantial risk of

18 suffering serious harm. Roman, 977 F.3d at 943.

19

The essential question then, for Fifth Amendment purposes, and at this juncture, is

20 whether the facts alleged show that Defendants have failed to “take reasonable available

21 measures to abate that risk, even though a reasonable official in the circumstances would

22 have appreciated the high degree of risk involved.” Id. Because this is an objective

23 standard, a showing of a “culpable mind” is not required; instead, the Court looks only to

24 whether the allegations in the Complaint support that a reasonable official under the same

25 circumstances would have apprehended the high degree of risk involved to CAFCC

26 detainees of contracting COVID-19, and that Defendants have failed to take reasonable

27 available measures to abate that risk. Id.; Gordon, 888 F.3d at 1125.

28

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1

Plaintiffs argue that “in a pandemic where [adequate sanitation, social distancing,

2 and mask wearing], among [other measures], are essential to save lives,” the allegations in

3 the Complaint are sufficient to make this showing. (Doc. 64 at 9−10.) Defendants do not

4 address whether a reasonable official would have appreciated the seriousness of the risk to

5 detainees at CAFCC due to the facility’s alleged failures to adhere to its own COVID-19

6 policies and CDC guidelines. Instead, they focus only on the reasonableness of the official

7 policies, themselves, and they deny that the allegations in the Complaint are sufficient to

8 show “a de facto policy, practice, or custom in reckless disregard to Plaintiff’s health and

9 safety.” (Doc. 48 at 16.) On the same basis, they argue that the conditions to which pretrial

10 detainees are allegedly subjected at CAFCC are not “punitive” or excessive in relation to

11 the government’s substantial and legitimate interest in holding individuals charged with

12 serious federal crimes. (Id. at 16−17.)

13

As already noted, Defendants’ argument based solely on the asserted reasonableness

14 of their official policies, as incorporated by reference in the Complaint, is misplaced. For

15 purposes of a 12(b)(6) Motion, the Court must accept Plaintiffs’ allegations in the

16 Complaint as true and draw all reasonable inferences in Plaintiffs favor. Outdoor Media

17 Group, 506 F.3d at 900; Iqbal, 556 U.S. at 678. And based on the above-discussed

18 allegations of specific, widespread deficiencies in CAFCC’s policies and practices for

19 preventing the spread of COVID-19, it is possible to infer both that Defendants made

20 intentional decisions regarding Plaintiff’s conditions of confinement and that a reasonable

21 official, knowing the seriousness of the risks associated with COVID-19, could appreciate

22 the high degree of risk these conditions posed to the health and welfare of detainees.

23 Additionally, many of Plaintiffs allegations in the Complaint, including CAFCC’s alleged

24 failures to check inmates for COVID-19 symptoms or to test or quarantine even those

25 showing active symptoms, are sufficient to show that Defendants have failed to take

26 reasonable available measures to abate that risk. (See Doc. 1 ¶¶ 4, 37, 55−61.)

27

For the above reasons, the allegations in the Complaint are sufficient to show that

28 the conditions of confinement to which pre-trial detainees are subjected are objectively

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1 unreasonable and excessive in relation to the government’s legitimate interests in confining

2 these detainees. See Castro, 833 F.3d at 1085 (Ikuta, J., dissenting) (“objectively

3 unreasonable action has no legitimate nonpunitive governmental purpose”). Moreover,

4 because a “remedy for unsafe conditions need not await a tragic event,” the final, injury

5 prong required to state a Fifth Amendment claim is also met. Roman, 977 F.3d at 943.

6 Accordingly, the Court will deny Defendants’ Motion to Dismiss Plaintiff’s Fifth

7 Amendment claims on behalf of the pre-trial class.

8

IT IS ORDERED:

9

(1) The reference to the Magistrate Judge is withdrawn as to Defendants-

10 Respondents’ Joint Motion to Dismiss (Doc. 48).

11

(2) The Joint Motion to Dismiss (Doc. 48) is granted in part and denied in

12 part. The Motion is granted in part as to (a) Plaintiffs-Petitioners’ claims seeking release

13 under § 1331 and/or writs of habeas corpus under § 2241, and these claims are dismissed

14 for lack of subject-matter jurisdiction under Rule 12(b)(1); and (b) Plaintiffs’ Eighth

15 Amendment claims on behalf of the post-conviction class, and these claims are dismissed

16 for failure to state a claim under Rule 12(b)(6).

17

(3) The Motion is denied as to Defendants’ Motion to Dismiss Plaintiff’s Fifth

18 Amendment claims on behalf of the pre-trial class.

19

Dated this 17th day of February, 2021.

20

21

22

Honorable Diane J. Humetewa

23

United States District Judge

24

25

26

27

28

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