U.S. District Court Southern District of Georgia (Waycross) CIVIL DOCKET FOR CASE #: 5:20-cv-00046-LGW-BWC

Benavides et al v. Gartland et al Assigned to: Judge Lisa G. Wood Referred to: Magistrate Judge Benjamin W. Cheesbro Cause: 28:2241 Petition for Writ of Habeas Corpus (Federal)

Date Filed: 04/08/2020 Date Terminated: 11/18/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

Petitioner
Jenner Benavides TERMINATED: 11/18/2020

represented by Amanda N. Brouillette KilpatrickTownsend & Stockton, LLP 1100 Peachtree St. NE Suite 2800 Atlanta, GA 30309 404-685-6775 Email: abrouillette@kilpatricktownsend.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Caitlin J. Sandley Southern Poverty Law Center 400 Washington Ave. Montgomery, AL 36104 334-303-6822 Email: cj.sandley@splcenter.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Melissa Crow Southern Poverty Law Center 1101 17th Street, NW Suite 705 Washington, DC 20036 202-355-4471 Email: melissa.crow@splcenter.org LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
Phi Nguyen Asian Americans Advancing JusticeAtlanta 5680 Oakbrook Parkway Suite 148 Norcross, GA 30093 404-409-4054 Email: pnguyen@advancingjusticeatlanta.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gracie Willis Southern Poverty Law Center 150 E. Ponce de Leon Avenue Suite 340 Decatur, GA 30030 404-221-4050 Email: gracie.willis@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
Hillary Li Asian Americans Advancing Justice Atlanta 5680 Oakbrook Pkwy Suite 148 Norcross, GA 30093 404-585-8446 Email: hli@advancingjusticeatlanta.org PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Isted Kilpatrict Townsend & Stockton, LLP 1100 Peachtree St. NE Suite 2800 Atlanta, GA 30309 404-532-6946 Email:

kisted@kilpatricktownsend.com PRO HAC VICE ATTORNEY TO BE NOTICED
Lorilei Williams Southern Poverty Law Center PO Box 1287 Decatur, GA 30031 404-858-2567 Email: lorilei.williams@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Howard Reeves Kilpatrick Townsend & Stockton, LLP 1450 Greene St Enterprise Mill Suite 230 Augusta, GA 30901 706-823-4206 Fax: 706-828-4488 Email: mreeves@kilpatricktownsend.com ATTORNEY TO BE NOTICED
Paul R. Chavez Southern Poverty Law Center 2 S. Biscayne Blvd. Suite 3200 Miami, FL 33101 786-347-2056 Email: paul.chavez@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Cassler Southern Poverty Law Center 150 E. Ponce de Leon Avenue Suite 340 Decatur, GA 30030 404-521-6700 Fax: 404-221-5857 Email: rebecca.cassler@splcenter.org ATTORNEY TO BE NOTICED
Victoria Mesa-Estrada

Petitioner
David Fernandez TERMINATED: 11/18/2020

Southern Poverty Law Center 2 S. Biscayne Blvd. Ste. 3200 Miami, FL 33101 786-347-2056 Email: victoria.mesa@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Amanda N. Brouillette (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Caitlin J. Sandley (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Crow (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Phi Nguyen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Victoria Mesa-Estrada (See above for address) LEAD ATTORNEY PRO HAC VICE
Gracie Willis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Hillary Li (See above for address)

Petitioner
Gerardo Arriaga TERMINATED: 11/18/2020

PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Isted (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lorilei Williams (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Howard Reeves (See above for address) ATTORNEY TO BE NOTICED
Paul R. Chavez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Cassler (See above for address) ATTORNEY TO BE NOTICED
represented by Amanda N. Brouillette (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Caitlin J. Sandley (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Crow (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Phi Nguyen

Petitioner
Winston Brown TERMINATED: 11/18/2020

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gracie Willis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Hillary Li (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Isted (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lorilei Williams (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Howard Reeves (See above for address) ATTORNEY TO BE NOTICED
Paul R. Chavez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Cassler (See above for address) ATTORNEY TO BE NOTICED
Victoria Mesa-Estrada (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Amanda N. Brouillette (See above for address)

Petitioner
Ajit Kumar TERMINATED: 11/18/2020

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Caitlin J. Sandley (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Crow (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hillary Li (See above for address) ATTORNEY TO BE NOTICED
Mark Howard Reeves (See above for address) ATTORNEY TO BE NOTICED
represented by Amanda N. Brouillette (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Caitlin J. Sandley (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Crow (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hillary Li (See above for address) ATTORNEY TO BE NOTICED

Petitioner Scott James TERMINATED: 11/18/2020
V. Respondent Patrick Gartland Warden, Folkston ICE Processing Center TERMINATED: 11/18/2020
Respondent

Mark Howard Reeves (See above for address) ATTORNEY TO BE NOTICED
represented by Amanda N. Brouillette (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Caitlin J. Sandley (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Crow (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hillary Li (See above for address) ATTORNEY TO BE NOTICED
Mark Howard Reeves (See above for address) ATTORNEY TO BE NOTICED
represented by Otto Woelke Leithart U.S. Attorney's Office - Savannah P.O. Box 8970 22 Barnard Street, Suite 300 Savannah, GA 31401 912-652-4422 Email: woelke.leithart@usdoj.gov ATTORNEY TO BE NOTICED

Thomas Giles Field Office Director U.S. Immigration and Customs TERMINATED: 11/18/2020
Respondent
Matthew T. Albence Deputy Director and Senior Official Performing the Duties of the Director TERMINATED: 11/18/2020
Respondent
Chad Wolf Acting Secretary Department of Homeland Security TERMINATED: 11/18/2020
Respondent
U.S Immigration and Customs Enforcement TERMINATED: 11/18/2020

represented by Otto Woelke Leithart (See above for address) ATTORNEY TO BE NOTICED
represented by Otto Woelke Leithart (See above for address) ATTORNEY TO BE NOTICED
represented by Otto Woelke Leithart (See above for address) ATTORNEY TO BE NOTICED
represented by Otto Woelke Leithart (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/08/2020
04/08/2020 04/08/2020 04/08/2020

#

Docket Text

1 PETITION for Writ of Habeas Corpus and Complaint for declaratory and injunctive relief, filed by David Fernandez, Jenner Benavides, Gerardo Arriaga. (Attachments: # 1 Civil Cover Sheet)(jrb) Modified on 4/9/2020 (jrb). (Entered: 04/08/2020)

2 Disclosure Statement pursuant to Local Rule 7.1.1 by Gerardo Arriaga, Jenner Benavides, David Fernandez. (jrb) (Entered: 04/08/2020)

3 Summons Issued as to Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S. Immagration and Customs Enforcement, Chad Wolf. (jrb) (Entered: 04/08/2020)

4 ******* MOTION for Temporary Restraining Order by Gerardo Arriaga, Jenner Benavides, David Fernandez. Responses due by 4/22/2020. (Attachments: # 1 Briefs, # 2 Exhibit Declaration of Mark H. Reeves, Esq., # 3 Exhibit 1 - Greifinger Declaration, # 4 Exhibit 2 - Cummings Declaration, # 5 Exhibit 3 - Zeidan Declaration, # 6 Exhibit 4 - Sandweg Declaration, # 7 Exhibit 5 -

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Yoon Declaration, # 8 Exhibit 6 - Rivera Declaration, # 9 Exhibit 7 - Benavides Declaration, # 10 Exhibit 8 - Fernandez Declaration, # 11 Exhibit 9 - Arriaga Declaration)(Reeves, Mark) (Entered: 04/08/2020)
5 ******* MOTION for Leave to Proceed Under Pseudonyms and, MOTION for Protective Order by Gerardo Arriaga, Jenner Benavides, David Fernandez. Responses due by 4/22/2020. (Attachments: # 1 Briefs)(Reeves, Mark) Modified on 4/20/2020 (WS). (Entered: 04/08/2020)
6 MOTION for Leave to Appear Pro Hac Vice for Rebecca Cassler Receipt Number AGASDC-2820034, Fee Amount $200, by Gerardo Arriaga, Jenner Benavides, David Fernandez. Responses due by 4/22/2020. (Attachments: # 1 Appendix Certificate of Good Standing)(Reeves, Mark) (Entered: 04/08/2020)
7 MOTION for Leave to Appear Pro Hac Vice for Paul Chavez Receipt Number AGASDC-2820037, Fee Amount $200, by Gerardo Arriaga, Jenner Benavides, David Fernandez. Responses due by 4/22/2020. (Attachments: # 1 Appendix Certificate of Good Standing)(Reeves, Mark) (Entered: 04/08/2020)
8 MOTION for Leave to Appear Pro Hac Vice Hillary Li Receipt Number AGASDC-2820050, Fee Amount $200, by Gerardo Arriaga, Jenner Benavides, David Fernandez. Responses due by 4/22/2020. (Attachments: # 1 Appendix Certificate of Good Standing)(Reeves, Mark) (Entered: 04/08/2020)
9 MOTION for Leave to Appear Pro Hac Vice for Phi Nguyen Receipt Number AGASDC-2820051, Fee Amount $200, by Gerardo Arriaga, Jenner Benavides, David Fernandez. Responses due by 4/22/2020. (Attachments: # 1 Appendix Certificate of Good Standing)(Reeves, Mark) (Entered: 04/08/2020)
10 MOTION for Leave to Appear Pro Hac Vice for Lorilei Williams Receipt Number AGASDC-2820052, Fee Amount $200, by Gerardo Arriaga, Jenner Benavides, David Fernandez. Responses due by 4/22/2020. (Attachments: # 1 Appendix Certificate of Good Standing)(Reeves, Mark) (Entered: 04/08/2020)
11 MOTION for Leave to Appear Pro Hac Vice for Gracie Willis Receipt Number AGASDC-2820053, Fee Amount $200, by

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04/09/2020 04/09/2020
04/09/2020 04/09/2020 04/10/2020

Gerardo Arriaga, Jenner Benavides, David Fernandez. Responses due by 4/22/2020. (Attachments: # 1 Appendix Certificate of Good Standing)(Reeves, Mark) (Entered: 04/08/2020)

Filing fee: $ 400.00, receipt number AGASDC-2819558. (jrb) (Entered: 04/09/2020)

12 NOTICE of Appearance by Otto Woelke Leithart on behalf of Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S. Immagration and Customs Enforcement, Chad Wolf (Leithart, Otto) (Entered: 04/09/2020)

13 Summons Issued as to U.S. Attorney General. (wwp) (Entered: 04/09/2020)

14 NOTICE of Filing Deficiency re 9 MOTION for Leave to Appear Pro Hac Vice for Phi Nguyen, 8 MOTION for Leave to Appear Pro Hac Vice Hillary Li, 7 MOTION for Leave to Appear Pro Hac Vice for Paul Chavez, 10 MOTION for Leave to Appear Pro Hac Vice for Lorilei Williams, 11 MOTION for Leave to Appear Pro Hac Vice for Gracie Willis, 6 MOTION for Leave to Appear Pro Hac Vice for Rebecca Cassler. (wwp) Modified on 4/9/2020 (slt). (Entered: 04/09/2020)

***Staff notes - All pro hac applicants (Docket entries 6-11) have never appeared in the SDGA. (wwp) (Entered: 04/09/2020)

MOTIONS REFERRED: 9 MOTION for Leave to Appear Pro Hac Vice for Phi Nguyen, 8 MOTION for Leave to Appear Pro Hac Vice Hillary Li, 7 MOTION for Leave to Appear Pro Hac Vice for Paul Chavez, 10 MOTION for Leave to Appear Pro Hac Vice for Lorilei Williams, 11 MOTION for Leave to Appear Pro Hac Vice for Gracie Willis, 6 MOTION for Leave to Appear Pro Hac Vice for Rebecca Cassler. (wwp) (Entered: 04/09/2020)

ORDER directing the Clerk of Court to Transfer this Case to the

15

Waycross Division. Signed by District Judge R. Stan Baker on

4/9/20. (jrb) (Entered: 04/09/2020)

Case assigned to Magistrate Judge Benjamin W. Cheesbro pursuant to divisional transfer of case. Magistrate Judge Christopher L. Ray no longer assigned to the case. (slt) (Entered: 04/09/2020)

*** Attorney Rebecca Cassler added for Petitioners. (edd) (Entered: 04/10/2020)

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04/10/2020
04/10/2020
04/10/2020
04/10/2020

*** Attorney Paul Chavez added for Petitioners. (edd) (Entered: 04/10/2020)
*** Attorney Hillary Li added for Petitioners. (edd) (Entered: 04/10/2020)
Attorney Phi Nguyen added for Petitioners. (edd) (Entered: 04/10/2020)
Attorney Lorilei Williams added for Petitioners. (edd) (Entered: 04/10/2020)
Attorney Gracie Willis added for Petitioners. (edd) (Entered: 04/10/2020)
16 TEXT ORDER granting 6 MOTION for Leave to Appear Pro Hac Vice by Rebecca Cassler. Mark H. Reeves has entered an appearance in this case and vouches he will satisfy the obligations of local counsel, as this Court's Local Rule 83.4 requires. Signed by Magistrate Judge Benjamin W. Cheesbro on April 10, 2020. (edd) (Entered: 04/10/2020)
17 TEXT ORDER granting 7 MOTION for Leave to Appear Pro Hac Vice by Paul Chavez. Mark H. Reeves has entered an appearance in this case and vouches he will satisfy the obligations of local counsel, as this Court's Local Rule 83.4 requires. Signed by Magistrate Judge Benjamin W. Cheesbro on April 10, 2020. (edd) (Entered: 04/10/2020)
18 TEXT ORDER granting 8 MOTION for Leave to Appear Pro Hac Vice by Hillary Li. Mark H. Reeves has entered an appearance in this case and vouches he will satisfy the obligations of local counsel, as this Court's Local Rule 83.4 requires. Signed by Magistrate Judge Benjamin W. Cheesbro on April 10, 2020. (edd) (Entered: 04/10/2020)
19 TEXT ORDER granting 9 MOTION for Leave to Appear Pro Hac Vice by Phi Nguyen. Mark H. Reeves has entered an appearance in this case and vouches he will satisfy the obligations of local counsel, as this Court's Local Rule 83.4 requires. Signed by Magistrate Judge Benjamin W. Cheesbro on April 10, 2020. (edd) (Entered: 04/10/2020)
20 TEXT ORDER granting 10 MOTION for Leave to Appear Pro Hac Vice by Lorilei Williams. Mark H. Reeves has entered an appearance in this case and vouches he will satisfy the obligations of local counsel, as this Court's Local Rule 83.4 requires. Signed

04/10/2020
04/10/2020
04/13/2020
04/13/2020 04/13/2020 04/13/2020 04/13/2020 04/14/2020

by Magistrate Judge Benjamin W. Cheesbro on April 10, 2020. (edd) (Entered: 04/10/2020)
21 TEXT ORDER granting 11 MOTION for Leave to Appear Pro Hac Vice by Gracie Willis. Mark H. Reeves has entered an appearance in this case and vouches he will satisfy the obligations of local counsel, as this Court's Local Rule 83.4 requires. Signed by Magistrate Judge Benjamin W. Cheesbro on April 10, 2020. (edd) (Entered: 04/10/2020)
22 NOTICE of Hearing BY ELECTONIC MEANS on Motion 5 MOTION for Leave to Proceed Under Pseudonyms and MOTION for Protective Order , 4 MOTION for Temporary Restraining Order : Motion Hearing set for 4/15/2020 10:00 AM in BWK-DistVTC before Judge Lisa G. Wood. Counsel will receive dial in instructions in a follow up email.(WS) (Entered: 04/10/2020)
23 MOTION for Leave to Appear Pro Hac Vice for Victoria MesaEstrada Receipt Number AGASDC-2822187, Fee Amount $200, by Gerardo Arriaga, Jenner Benavides, David Fernandez. Responses due by 4/27/2020. (Attachments: # 1 Appendix Certificate of Good Standing)(Reeves, Mark) (Entered: 04/13/2020)
MOTIONS REFERRED: 23 MOTION for Leave to Appear Pro Hac Vice for Victoria Mesa-Estrada. (MG) (Entered: 04/13/2020)
24 RESPONSE to Motion re 5 MOTION for Leave to Proceed Under Pseudonyms and MOTION for Protective Order filed by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf. (Leithart, Otto) (Entered: 04/13/2020)
25 MOTION for Leave to Appear Pro Hac Vice for Kathryn Isted Receipt Number AGASDC-2822401, Fee Amount $200, by Gerardo Arriaga, Jenner Benavides, David Fernandez. Responses due by 4/27/2020. (Attachments: # 1 Appendix Certificate of Good Standing)(Reeves, Mark) (Entered: 04/13/2020)
MOTIONS REFERRED: 25 MOTION for Leave to Appear Pro Hac Vice for Kathryn Isted. (MG) (Entered: 04/13/2020)
26 NOTICE of Filing Proposed Order re 5 MOTION for Leave to Proceed Under Pseudonyms and MOTION for Protective Order . (Reeves, Mark) Modified on 4/14/2020 (MG). (Entered: 04/14/2020)

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04/14/2020 04/16/2020

Attorney Victoria Mesa-Estrada added for Petitioners. (edd) (Entered: 04/14/2020)
Attorney Kathryn Isted added for Petitioners. (edd) (Entered: 04/14/2020)
27 TEXT ORDER granting 23 MOTION for Leave to Appear Pro Hac Vice by Victoria Mesa-Estrada. Mark H. Reeves has entered an appearance in this case and vouches he will satisfy the obligations of local counsel, as this Court's Local Rule 83.4 requires. Signed by Magistrate Judge Benjamin W. Cheesbro on April 14, 2020. (edd) (Entered: 04/14/2020)
28 TEXT ORDER granting 25 MOTION for Leave to Appear Pro Hac Vice by Kathryn Isted. Mark H. Reeves has entered an appearance in this case and vouches he will satisfy the obligations of local counsel, as this Court's Local Rule 83.4 requires. Signed by Magistrate Judge Benjamin W. Cheesbro on April 14, 2020. (edd) (Entered: 04/14/2020)
***Attorney Victoria Mesa-Estrada and Kathryn Isted added for Gerardo Arriaga, Jenner Benavides, and David Fernandez added. (MG) (Entered: 04/14/2020)
29 RESPONSE in Opposition re 4 MOTION for Temporary Restraining Order filed by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf. (Attachments: # 1 Exhibit Gartland Declaration, # 2 Exhibit Allen Declaration)(Leithart, Otto) (Entered: 04/14/2020)
30 MOTION for Leave to File Supplemental Declarations by Gerardo Arriaga, Jenner Benavides, David Fernandez. Responses due by 4/28/2020. (Attachments: # 1 Affidavit of Meredyth Yoon (Supplemental), # 2 Affidavit of Jenner Benavides (Supplemental), # 3 Affidavit of David Fernandez (Supplemental), # 4 Affidavit of Gerardo Arriaga (Supplemental), # 5 Text of Proposed Order Granting Motion for Leave to File Supplemental Declarations)(Li, Hillary) (Entered: 04/14/2020)
31 NOTICE re 22 Notice of Hearing on Motion - publicly accessible audio conference line instructions. (WS) (Entered: 04/14/2020)
ORAL ORDER granting 30 Motion Leave to File Supplemental Declarations ; granting 5 MOTION for Leave to Proceed Under Pseudonyms, MOTION for Protective Order. Signed by Judge Lisa G. Wood on 04/15/2020. (WS) Modified on 4/20/2020 (WS). (Entered: 04/16/2020)

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05/01/2020 05/01/2020 05/04/2020 05/07/2020
05/07/2020

ORDER denying 4 Motion for preliminary relief. Signed by Judge

32

Lisa G. Wood on 04/18/2020. (WS) (Entered: 04/18/2020)

33 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 04/15/2020, before Judge Lisa Godbey Wood. Court Reporter/Transcriber Debbie Gilbert, Telephone number (912) 262-2608. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. (Transcript Redaction Policy Issued or Click here to view Transcript Redaction Policy) Redaction Request due 5/10/2020. Redacted Transcript Deadline set for 5/20/2020. Release of Transcript Restriction set for 7/18/2020. (Gilbert, Debra) (Entered: 04/19/2020)

34 MOTION to Dismiss by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf. Responses due by 5/15/2020. (Leithart, Otto) (Entered: 05/01/2020)

35 MOTION to Seal Declaration Exhibit by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf. Responses due by 5/15/2020. (Attachments: # 1 Text of Proposed Order)(Leithart, Otto) (Entered: 05/01/2020)

MOTIONS REFERRED: 35 MOTION to Seal Declaration Exhibit, 34 MOTION to Dismiss. (MG) (Entered: 05/04/2020)

36 AMENDED COMPLAINT Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241 and Complaint for Declaratory and Injunctive Relief against David Fernandez, Jenner Benavides, Gerardo Arriaga, Winston Brown, Ajit Kumar, Scott James, filed by David Fernandez, Jenner Benavides, Gerardo Arriaga, Winston Brown, Ajit Kumar, Scott James.(Reeves, Mark) (Entered: 05/07/2020)

37 ******* MOTION for Emergency Inspection and Other Expedited Discovery In Support of Their Motion for Preliminary Injunction by Gerardo Arriaga, Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar. Responses due by 5/21/2020. (Attachments: # 1 Briefs Memo ISO Motion for Emergency Inspection, # 2 Affidavit Declaration of Rebecca Cassler, # 3 Exhibit Ex. 1 Notice of Inspection, # 4 Exhibit Ex. 2 Petitioners' First Interrogatories to Respondents, # 5 Exhibit Ex. 3 Declaration of Scott James, # 6 Exhibit Ex. 4 Declaration of Ajit

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05/08/2020

Kumar, # 7 Exhibit Ex. 5 Declaration of Winston Brown, # 8 Exhibit Ex. 6 Second Supplemental Declaration of Jenner Benavides, # 9 Exhibit Ex. 7 Second Supplemental Declaration of David Fernandez, # 10 Exhibit Ex. 8 Second Supplemental Declaration of Gerardo Arriago, # 11 Exhibit Ex. 9 Modeling Study, # 12 Exhibit Ex. 10 Chunn v. Edge, Dkt 43, # 13 Exhibit Ex. 11 Malam v. Adducci, Dkt. 53, # 14 Exhibit Ex. 12 Banks v. Booth, Dkt 34, # 15 Exhibit Ex. 13 Supplemental Declaration of Homer Venters, M.D., # 16 Exhibit Ex. 14 Supplemental Declaration of Meredyth Yoon, # 17 Text of Proposed Order Proposed Order)(Reeves, Mark) (Entered: 05/07/2020)
38 MOTION for Leave to Proceed Under Pseudonym and For a Protective Order by Winston Brown, Ajit Kumar. Responses due by 5/21/2020. (Attachments: # 1 Text of Proposed Order Proposed Order)(Reeves, Mark) (Entered: 05/07/2020)
TEXT ONLY NOTICE of Hearing: TELEPHONIC Status Conference set for 5/8/2020 12:15 PM in L G Wood Chambers before Judge Lisa G. Wood. To dial in as a participant dial 1-888684-8852, When prompted, enter Access Code: 1384176, When prompted, enter Security Code: 0046.(WS) (Entered: 05/07/2020)
39 Consent MOTION for Leave to File Excess Pages for Memo ISO Motion for Preliminary Injunction by Gerardo Arriaga, Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar. Responses due by 5/22/2020. (Reeves, Mark) (Entered: 05/08/2020)
40 ORDER granting 35 Motion to Seal Declaration Exhibit . Signed by Magistrate Judge Benjamin W. Cheesbro on 05/08/2020. (MG) (Entered: 05/08/2020)
41 ******* MOTION for Preliminary Injunction and Emergency Writ of Habeas Corpus by Gerardo Arriaga, Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar. Responses due by 5/22/2020. (Attachments: # 1 Briefs Memo ISO Motion for Preliminary Injunction and Emergency Writ of Habeas Corpus, # 2 Affidavit Declaration of Hillary Li, Esq., # 3 Exhibit Ex. 1 Declaration of Homer Venters, M.D.)(Reeves, Mark) (Entered: 05/08/2020)
42 Minute Entry for proceedings held before Judge Lisa G. Wood: Telephone Status Conference held on 5/8/2020. (Court Reporter Debbie Gilbert.) (WS) (Entered: 05/08/2020)

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ORAL ORDER granting 38 Motion for Leave to Proceed Under Pseudonym and For a Protective Order; granting 39 Motion for Leave to File Excess Pages. Signed by Judge Lisa G. Wood on 05/08/2020. (WS) (Entered: 05/08/2020)
TEXT ONLY NOTICE of Telephonic Status conference on Motion 37 MOTION for Emergency Inspection and Other Expedited Discovery In Support of Their Motion for Preliminary Injunction : Telephonic Status Conference set for 5/13/2020 03:00 PM in BWC Chambers before Magistrate Judge Benjamin W. Cheesbro. Counsel to receive dial-in instructions via email prior to hearing.(WS) (Entered: 05/08/2020)
MOTIONS REFERRED: 37 MOTION for Emergency Inspection and Other Expedited Discovery In Support of Their Motion for Preliminary Injunction, pursuant to 42 . (MG) (Entered: 05/08/2020)
Set/Reset Deadlines as to 37 MOTION for Emergency Inspection and Other Expedited Discovery In Support of Their Motion for Preliminary Injunction. Responses due by 5/11/2020, pursuant to 42 . (MG) (Entered: 05/08/2020)
Set/Reset Deadlines as to 41 MOTION for Preliminary Injunction and Emergency Writ of Habeas Corpus. Responses due by 5/21/2020. Replies due by 5/22/2020, pursuant to 42 . (MG) (Entered: 05/08/2020)
Motions No Longer Referred: 34 MOTION to Dismiss. (MG) (Entered: 05/11/2020)
44 RESPONSE in Opposition re 37 MOTION for Emergency Inspection and Other Expedited Discovery In Support of Their Motion for Preliminary Injunction filed by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf. (Leithart, Otto) (Entered: 05/11/2020)
45 Brief in Support re 37 MOTION for Emergency Inspection and Other Expedited Discovery In Support of Their Motion for Preliminary Injunction , 41 MOTION for Preliminary Injunction and Emergency Writ of Habeas Corpus filed by Gerardo Arriaga, Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar. (Attachments: # 1 Declaration of Gracie Willis, Esq., # 2 Exhibit 1 Dkt 52 Swain v. Miami-Dade County (20-cv-21457 S.D. Fla.), # 3 Exhibit 2 Dkt 53 Seth v. McDonough (20-cv-01028 D. Md.), # 4 Exhibit 3 Dkt 27 Cameron v. Bouchard (20-cv-10949 S.D. Mich.), # 5 Exhibit 4

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Dkt 53 Chun v. Edge (20-cv-01590 E.D. N.Y.), # 6 Exhibit 5 Dkt 72-1 Chun v. Edge (20-cv-01590 E.D. N.Y.))(Reeves, Mark) (Entered: 05/12/2020)
46 Minute Entry for proceedings held before Magistrate Judge Benjamin W. Cheesbro. Telephonic Status Conference held on 5/13/2020. (Tape #BWC-CHAMBERS.) (km) (Entered: 05/14/2020)
Set/Reset Deadlines: Status Report due by 5/18/2020, pursuant to 46 . (MG) (Entered: 05/14/2020)
NOTICE OF HEARING BY ELECTRONIC MEANS on Motion 41 MOTION for Preliminary Injunction and Emergency Writ of Habeas Corpus : The Motion hearing will be held on 6/9/2020 09:00 AM in BWK-DistVTC before Judge Lisa G. Wood. Parties will receive login instructions via email. For Public access to this hearing, please dial 1-888-684-8852, enter the call access code 2296092 and enter the security code 1234.(WS) (Entered: 05/18/2020)
47 MOTION to Dismiss Amended Petition by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf. Responses due by 6/1/2020. (Attachments: # 1 Exhibit Interim CDC Guidance)(Leithart, Otto) (Entered: 05/18/2020)
48 MOTION to Stay Discovery by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf. Responses due by 6/1/2020. (Attachments: # 1 Text of Proposed Order)(Leithart, Otto) (Entered: 05/18/2020)
MOTIONS REFERRED: 48 MOTION to Stay Discovery. (MG) (Entered: 05/18/2020)
49 STATUS REPORT by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf. (Leithart, Otto) (Entered: 05/18/2020)
50 STATUS REPORT by Gerardo Arriaga, Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar. (Attachments: # 1 Exhibit A - Second Supplemental Declaration of Homer Ventures, M.D.)(Reeves, Mark) (Entered: 05/18/2020)
51 MOTION for Leave to Appear Pro Hac Vice for Melissa Crow Receipt Number AGASDC-2843721, Fee Amount $200, by

05/19/2020 05/20/2020
05/20/2020 05/21/2020
05/21/2020 05/22/2020 05/27/2020 05/27/2020

Gerardo Arriaga, Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar. Responses due by 6/2/2020. (Attachments: # 1 Exhibit Certificate of Good Standing)(Reeves, Mark) (Entered: 05/19/2020)

MOTIONS REFERRED: 51 MOTION for Leave to Appear Pro Hac Vice for Melissa Crow Receipt Number AGASDC-2843721, Fee Amount $200. (MG) (Entered: 05/19/2020)

52 TEXT ORDER granting 51 MOTION for Leave to Appear Pro Hac Vice by Melissa Crow. Mark H. Reeves has entered an appearance in this case and vouches he will satisfy the obligations of local counsel, as this Court's Local Rule 83.4 requires. Signed by Magistrate Judge Benjamin W. Cheesbro on May 20, 2020. (edd) (Entered: 05/20/2020)

ORDER granting in part and denying in part 37 Motion for

53

Emergency Inspection and Other Expedited Discovery. Signed by

Magistrate Judge Benjamin W. Cheesbro on 5/20/2020. (ca)

(Entered: 05/20/2020)

54 MOTION for Extension of Time to File Response/Reply as to 41 MOTION for Preliminary Injunction and Emergency Writ of Habeas Corpus by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf. Responses due by 6/4/2020. (Attachments: # 1 Text of Proposed Order)(Leithart, Otto) (Entered: 05/21/2020)

55 ORDER granting 54 MOTION for Extension of Time to File Response/Reply as to 41 MOTION for Preliminary Injunction and Emergency Writ of Habeas Corpus . Responses due by 6/4/2020. Replies due by 6/5/2020. Signed by Judge Lisa G. Wood on 05/21/2020. (WS) (Entered: 05/21/2020)

Set/Reset Deadlines as to 41 MOTION for Preliminary Injunction and Emergency Writ of Habeas Corpus. Responses due by 6/4/2020. Replies due by 6/5/2020. (MG) (Entered: 05/22/2020)

56 OBJECTIONS to Petitioner's Requests for Production by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf. (Attachments: # 1 Exhibit Petitioners' Requests for Production)(Leithart, Otto). Modified on 5/28/2020 (MG). (Entered: 05/27/2020)

NOTICE of Hearing: Telephonic Status Conference set for 5/28/2020 01:30 PM in Chambers before Magistrate Judge

05/28/2020 05/29/2020 05/29/2020 06/01/2020 06/01/2020 06/01/2020

Benjamin W. Cheesbro. Dial-in instructions will be provided by Courtroom Deputy Clerk prior to scheduled call. (km) (Entered: 05/27/2020)
57 Minute Entry for proceedings held before Magistrate Judge Benjamin W. Cheesbro. Telephonic Status Conference held on 5/28/2020. (Tape #BWC-CHAMBERS.) (km) (Entered: 05/29/2020)
58 MOTION for Leave to Appear Pro Hac Vice for Caitlin J. Sandley Receipt Number AGASDC-2852463, Fee Amount $200, by Gerardo Arriaga, Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar. Responses due by 6/12/2020. (Attachments: # 1 Certificate of Good Standing)(Reeves, Mark) (Additional attachment(s) added on 6/1/2020: # 2 Statement of Cases) (MG). (Entered: 05/29/2020)
59 MOTION for Leave to Appear Pro Hac Vice for Amanda N. Brouillette Receipt Number AGASDC-2852490, Fee Amount $200, by Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar. Responses due by 6/12/2020. (Attachments: # 1 Certificate of Good Standing)(Reeves, Mark) (Additional attachment(s) added on 6/1/2020: # 2 Statement of Cases) (MG). (Entered: 05/29/2020)
MOTIONS REFERRED: 58 MOTION for Leave to Appear Pro Hac Vice for Caitlin J. Sandley Receipt Number AGASDC2852463, Fee Amount $200. 59 MOTION for Leave to Appear Pro Hac Vice for Amanda N. Brouillette Receipt Number AGASDC-2852490, Fee Amount $200. (MG) (Entered: 06/01/2020)
60 TEXT ORDER granting 58 MOTION for Leave to Appear Pro Hac Vice by Caitlin J. Sandley. Mark H. Reeves has entered an appearance in this case and vouches he will satisfy the obligations of local counsel, as this Court's Local Rule 83.4 requires. Signed by Magistrate Judge Benjamin W. Cheesbro on June 1, 2020. (edd) (Entered: 06/01/2020)
61 TEXT ORDER granting 59 MOTION for Leave to Appear Pro Hac Vice by Amanda N. Brouillette. Mark H. Reeves has entered an appearance in this case and vouches he will satisfy the obligations of local counsel, as this Court's Local Rule 83.4 requires. Signed by Magistrate Judge Benjamin W. Cheesbro on June 1, 2020. (edd) (Entered: 06/01/2020)

06/01/2020 06/01/2020 06/01/2020 06/02/2020 06/02/2020 06/02/2020 06/04/2020 06/04/2020
06/05/2020

62 RESPONSE in Opposition re 48 MOTION to Stay Discovery filed by Gerardo Arriaga, Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar. (Reeves, Mark) (Entered: 06/01/2020)
63 Consent MOTION for Protective Order by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf. Responses due by 6/15/2020. (Attachments: # 1 Protective Order)(Leithart, Otto) Modified on 6/2/2020 (slt). (Entered: 06/01/2020)
64 RESPONSE in Opposition re 47 MOTION to Dismiss Amended Petition filed by Gerardo Arriaga, Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar. (Reeves, Mark) (Entered: 06/01/2020)
65 NOTICE of Intent to Reply by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf re 62 Response in Opposition to Motion. (Leithart, Otto) (Entered: 06/02/2020)
66 NOTICE of Intent to Reply by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf re 64 Response in Opposition to Motion. (Leithart, Otto) (Entered: 06/02/2020)
67 ORDER granting 63 Motion for Protective Order. Signed by Magistrate Judge Benjamin W. Cheesbro on 6/2/2020. (ca) (Entered: 06/02/2020)
68 MOTION for Leave to File Under Seal by Gerardo Arriaga, Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar. Responses due by 6/18/2020. (Reeves, Mark) (Entered: 06/04/2020)
69 RESPONSE in Opposition re 41 MOTION for Preliminary Injunction and Emergency Writ of Habeas Corpus filed by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf. (Attachments: # 1 Exhibit Fontanazza Declaration, # 2 Exhibit Warren Declaration, # 3 Exhibit MDGA Order)(Leithart, Otto) (Entered: 06/04/2020)
70 ORDER granting 68 Motion for Leave to File Under Seal. The Clerk is DIRECTED to permit Petitioners to file their reply brief and exhibits under seal. Petitioners may file a redacted version for

06/05/2020 06/05/2020 06/05/2020 06/08/2020
06/09/2020
06/09/2020

public viewing by June 12, 2020. Signed by Judge Lisa G. Wood on 6/5/2020. (ca) (Entered: 06/05/2020)
Set Deadlines: Compliance re Order 70 due by 6/12/2020. (ca) (Entered: 06/05/2020)
NOTICE of Hearing: Telephonic Status Conference set for 6/5/2020 03:30 PM in Chambers before Magistrate Judge Benjamin W. Cheesbro. Dial-in instructions will be provided by Courtroom Deputy Clerk prior to the scheduled call. (km) (Entered: 06/05/2020)
82 Minute Entry for proceedings held before Magistrate Judge Benjamin W. Cheesbro: Telephonic Status Conference held on 6/5/2020. (Tape #BWC-CHAMBERS.) (KM) (Entered: 06/15/2020)
71 MOTION for Leave to File Supplemental Evidence and Authority by Gerardo Arriaga, Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar. Responses due by 6/22/2020. (Attachments: # 1 Exhibit Supplemental Authority, # 2 Affidavit of Edin Yovani Pop Coy, # 3 Affidavit of Josue Serrano Serrano)(Li, Hillary) (Entered: 06/08/2020)
72 Minute Entry for proceedings held before Judge Lisa G. Wood: Motion Hearing held on 6/9/2020 re 41 MOTION for Preliminary Injunction and Emergency Writ of Habeas Corpus filed by Gerardo Arriaga, David Fernandez, Winston Brown, Scott James, Ajit Kumar, Jenner Benavides. (Court Reporter Debbie Gilbert.) (WS) (Entered: 06/09/2020)
73 NOTICE of Filing Exhibits Under Seal re 74 by Gerardo Arriaga, Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar (Isted, Kathryn). Modified on 6/10/2020 (MG). (Additional attachment(s) added on 6/10/2020: # 1 Declaration of Caitlin J. Sandley, Esq- 6/5/2020, # 2 Exhibits 1-3) (MG). (Additional attachment(s) added on 6/10/2020: # 3 Exhibit 4, Part I) (MG). (Additional attachment(s) added on 6/10/2020: # 4 Exhibit 4, Part II) (MG). (Additional attachment(s) added on 6/10/2020: # 5 Exhibit 4, Part III) (MG). (Additional attachment(s) added on 6/10/2020: # 6 Exhibits 5-7) (MG). (Additional attachment(s) added on 6/10/2020: # 7 Exhibit 8, Part I) (MG). (Additional attachment(s) added on 6/10/2020: # 8 Exhibit 8, Part II) (MG). (Additional attachment(s) added on 6/10/2020: # 9 Exhibit 8, Part III) (MG). (Additional attachment(s) added on 6/10/2020: # 10 Exhibits 9-19) (MG). (Additional attachment(s) added on 6/11/2020: # 11 Declaration of Caitlin J. Sandley, Esq-

06/11/2020 06/11/2020
06/12/2020 06/12/2020 06/12/2020 06/13/2020 06/15/2020 06/15/2020

6/9/2020, # 12 Exhibit 1, # 13 Exhibit 2) (MG). (Entered: 06/09/2020)
75 MOTION for Leave to File Supplemental Brief Under Seal by Gerardo Arriaga, Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar. Responses due by 6/25/2020. (Li, Hillary) (Entered: 06/11/2020)
76 MOTION for Leave of Absence as to Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf for dates of : 07/06/2020-07/14/2020 by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf. Responses due by 6/25/2020. (Leithart, Otto) (Entered: 06/11/2020)
77 ORDER granting 75 MOTION for Leave to File Supplemental Brief Under Seal. Signed by Judge Lisa G. Wood on 06/12/2020. (MG) (Entered: 06/12/2020)
78 Brief in Support re 41 MOTION for Preliminary Injunction and Emergency Writ of Habeas Corpus filed by Gerardo Arriaga, Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar. (Reeves, Mark) (Entered: 06/12/2020)
MOTIONS REFERRED: 76 MOTION for Leave of Absence as to Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf for dates of : 07/06/2020-07/14/2020 (slt) (Entered: 06/12/2020)
79 REPLY to Response to Motion re 47 MOTION to Dismiss Amended Petition filed by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf. (Leithart, Otto) (Entered: 06/13/2020)
80 TEXT ORDER granting 76 Motion for Leave of Absence by Woelke Leithart for the dates of July 6, 2020 through and including July 14, 2020. Signed by Magistrate Judge Benjamin W. Cheesbro on June 15, 2020. (edd) (Entered: 06/15/2020)
81 Supplemental Briefing in Support of 41 MOTION for Preliminary Injunction and Emergency Writ of Habeas Corpus, filed by Gerardo Arriaga, Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar. (Attachments: # 1 Declaration of Caitlin J. Sandley, Esq.- 6/12/2020, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7) (MG) (Entered: 06/15/2020)

06/15/2020 06/15/2020
06/15/2020 06/16/2020 06/17/2020 06/19/2020
06/19/2020 07/08/2020
07/13/2020 08/11/2020

ORAL ORDER granting 71 Motion for Leave to File - see minute entry at 72 . Signed by Judge Lisa G. Wood on 06/09/2020. (WS) (Entered: 06/15/2020)

83 MOTION to Seal Supplemental Brief by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf. Responses due by 6/29/2020. (Attachments: # 1 Text of Proposed Order)(Leithart, Otto) (Entered: 06/15/2020)

84 REPLY to Response to Motion re 48 MOTION to Stay Discovery filed by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf. (Leithart, Otto) (Entered: 06/15/2020)

ORDER granting 83 Motion to Seal Supplemental Brief. Signed

85

by Judge Lisa G. Wood on 6/16/2020. (ca) (Entered: 06/16/2020)

86 Brief in Opposition to 41 MOTION for Preliminary Injunction and Emergency Writ of Habeas Corpus, filed by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf. (MG) (Entered: 06/17/2020)

87 Consent MOTION to Stay Petitioners' Deadline to file Redacted Brief by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf. Responses due by 7/3/2020. (Attachments: # 1 Text of Proposed Order)(Leithart, Otto) (Entered: 06/19/2020)

88 ORDER granting 87 Motion to Stay Petitioners' Deadline to file Redacted Brief. Signed by Judge Lisa G. Wood on 06/19/2020. (MG) (Entered: 06/19/2020)

ORDER denying 41 Motion for Preliminary Injunction and

89

Emergency Writ of Habeas Corpus. Respondents' evidentiary

objections raised at the hearing are OVERRULED as moot insofar

as they concern the Petitioners motion for preliminary relief.

Signed by Judge Lisa G. Wood on 7/8/2020. (ca) (Entered:

07/08/2020)

ORDER granting 48 Motion to Stay the parties discovery

90

deadlines in this case. Signed by Magistrate Judge Benjamin W.

Cheesbro on 7/13/2020. (ca) (Entered: 07/13/2020)

ORDER re 47 MOTION to Dismiss Amended Petition. The Court

91

orders the parties to submit supplemental briefing within seven (7)

08/11/2020 08/12/2020 08/13/2020
08/13/2020 10/09/2020 10/13/2020
10/13/2020 11/12/2020 11/12/2020 11/13/2020

days of the date of this Order. Signed by Judge Lisa G. Wood on 08/11/2020. (MG) (Entered: 08/11/2020)

Set/Reset Deadlines: Supplemental Briefing re 47 due by 8/18/2020. (MG) (Entered: 08/11/2020)

92 NOTICE of Voluntary Dismissal by Gerardo Arriaga, Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar (Li, Hillary) (Entered: 08/12/2020)

ORDER that all claims asserted in this action are dismissed

93

without prejudice. Each party shall bear its own fees and costs.

This case will be stayed for sixty (60) days in order for the parties

to submit motions and/or consent agreements regarding docket

filing restrictions. Signed by Judge Lisa G. Wood on 08/13/2020.

(MG) (Entered: 08/13/2020)

Set/Reset Deadlines: Lift Stay/Compliance with 93 10/12/2020. (MG) (Entered: 08/13/2020)

due by

94 Consent MOTION for Extension of Time to Continue Stay at Dkt. 93, by Gerardo Arriaga, Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar. Responses due by 10/23/2020. (Li, Hillary) (Entered: 10/09/2020)

95 ORDER granting 94 Motion for Extension of Time to Continue Stay. The Court extends the Stay of this case through November 11, 2020. The parties shall submit any motions and /or consent agreements regarding docket filing restrictions on or before that date. Signed by Judge Lisa G. Wood on 10/13/2020. (MG) (Entered: 10/13/2020)

Set/Reset Deadlines: End of Stay/Motions regarding Docket Restrictions due by 11/11/2020. (MG) (Entered: 10/13/2020)

96 Consent MOTION for Leave to File Redacted Documents Publicly by Gerardo Arriaga, Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar. Responses due by 11/26/2020. (Li, Hillary) (Entered: 11/12/2020)

MOTIONS REFERRED: 96 Consent MOTION for Leave to File Redacted Documents Publicly (slt) (Entered: 11/12/2020)

97 ORDER granting 96 Motion for Leave to File Redacted Documents. Petitioners may file the redacted versions of the documents they identify in their Motion within seven days of this

Order. Signed by Magistrate Judge Benjamin W. Cheesbro on November 13, 2020. (jrb) (Entered: 11/13/2020)

11/13/2020

Set/Reset Deadlines: Compliance due by 11/20/2020. (jrb) (Entered: 11/13/2020)

11/13/2020

98 NOTICE by Gerardo Arriaga, Jenner Benavides, Winston Brown, David Fernandez, Scott James, Ajit Kumar re 97 Order on Motion for Leave to File, Filing Redacted Documents Publicly (Attachments: # 1 Partial Deposition Transcript of Mr. Stephen Davis, # 2 Deposition Transcript of Warden Ronald Warren, # 3 Declaration of Dr. Homer Venters, # 4 Petitioners' Supp Briefing ISO PI, # 5 Respondents' Supp Briefing Opposing PI)(Li, Hillary) (Entered: 11/13/2020)

11/16/2020 99

ORDER that the Parties file, within seven days of this Order, a status update with the Court stating whether any issues remain. (Status Report due by 11/23/2020.) Signed by Judge Lisa G. Wood on 11/16/2020. (ca) (Entered: 11/16/2020)

11/17/2020

100 STATUS REPORT by Matthew T. Albence, Patrick Gartland, Thomas Giles, U.S Immigration and Customs Enforcement, Chad Wolf. (Leithart, Otto) (Entered: 11/17/2020)

11/18/2020 101

ORDER DISMISSING CASE. Petitioners having previously voluntarily dismissed this action without prejudice, dkt.

nos. 92 , 93 . The Clerk is directed to close this case. Signed by Judge Lisa G. Wood on 11/18/2020. (MG) (Entered: 11/18/2020)

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 Case 4:20-cv-00069-RSB-CLR Document 1 Filed 04/08/20 Page 1 of 41

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA

JENNER BENAVIDES DAVID FERNANDEZ GERARDO ARRIAGA Folkston ICE Processing Center P.O. Box 248 Folkston, GA 31537
Petitioners/Plaintiffs,
v.
PATRICK GARTLAND Warden, Folkston ICE Processing Center 3026 Hwy 252 E P.O. Box 98 Folkston, GA 31537;
and
THOMAS GILES Field Office Director U.S. Immigration and Customs Enforcement Atlanta Field Office, 180 Ted Turner Drive, SW, Suite 522 Atlanta, GA 30303;
and
MATTHEW T. ALBENCE Deputy Director and Senior Official Performing the Duties of the Director U.S. Immigration and Customs Enforcement 500 12th Street, SW Washington, D.C. 20536;
and
CHAD WOLF Acting Secretary Department of Homeland Security, 3801 Nebraska Avenue, NW Washington, D.C. 20016;
and

Case No.: HEARING REQUESTED

US2008 16763120 1

Case 4:20-cv-00069-RSB-CLR Document 1 Filed 04/08/20 Page 2 of 41 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 500 12th Street, SW Washington, D.C. 20536; Respondents/Defendants. PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 AND
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
ii
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Case 4:20-cv-00069-RSB-CLR Document 1 Filed 04/08/20 Page 3 of 41
TABLE OF CONTENTS
I. INTRODUCTION ...............................................................................................................1 II. PARTIES .............................................................................................................................3 III. JURISDICTION AND VENUE ..........................................................................................5 IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES .....................................................5 V. STATEMENT OF FACTS ..................................................................................................6
A. COVID-19 Is a Global Pandemic that Poses a Significant Risk of Death or Serious Illness to Petitioners................................................................................6 i. Transmission of COVID-19.........................................................................9 ii. Symptoms of COVID-19, Underlying Risks Factors, and LongTerm Effects...............................................................................................10 iii. Prevention of COVID-19 Transmission ....................................................11
B. COVID-19 Will Likely Ravage Jails, Prisons, and Detention Centers..................12 C. Folkston Detention Center Is Primed for COVID-19 Exposure and
Severe Outbreaks ...................................................................................................18 i. Existing Conditions at Folkston Will Further Enable COVID-19
Transmission ..............................................................................................18 ii. Folkston Has a Dismal Medical Care Track Record and Are
Currently Ignoring Reported Flu-like Symptoms Among the Detained Population...................................................................................19 iii. It Is Only a Matter of Time Before COVID-19 Reaches Folkston Detention Center ........................................................................................21 D. The Lack of Hospital Resources Near Folkston Will Put Petitioners at Even Greater Risk ..................................................................................................22 E. Respondents’ Actions to Address the Pandemic Thus Far Have Been Woefully Inadequate, and Release is the Only Adequate Response to Protect Petitioners ..................................................................................................24 F. Petitioners Are Particularly Vulnerable to Serious Illness or Death if Infected by COVID-19 and Should Be Released from Detention. ........................27 VI. LEGAL FRAMEWORK ...................................................................................................29 A. Petitioners Have a Constitutional Right to Reasonable Safety in Custody............29 B. This Court Has Authority to Order Petitioners’ Release to Vindicate Their Fifth Amendment Rights, and Such Relief Is Necessary Here. ...................31 C. Habeas Is a Broad, Flexible Remedy That Authorizes Courts to Order Release from Unlawful Detention Conditions as Law and Equity Requires..................................................................................................................32 VII. CLAIM FOR RELIEF .......................................................................................................34
US2008 16763120 1

Case 4:20-cv-00069-RSB-CLR Document 1 Filed 04/08/20 Page 4 of 41 A. Violation of Fifth Amendment Right to Substantive Due Process
(Unlawful Punishment; Freedom from Cruel Treatment and Conditions of Confinement)............................................................................34 VIII. PRAYER FOR RELIEF ....................................................................................................35
ii
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Case 4:20-cv-00069-RSB-CLR Document 1 Filed 04/08/20 Page 5 of 41
I. INTRODUCTION 1. The COVID-19 pandemic is wreaking havoc throughout the world. The United States has
now surpassed every other country in number of confirmed cases, and over 12,000 Americans have died. Experts estimate that the coronavirus will ultimately infect between 160 and 214 million people and taken the lives of up to 1.7 million people in the United States alone.
2. There is no vaccine against COVID-19 and no known cure. Currently, the only recognized strategies to reduce the risk of exposure to COVID-19 are social distancing and scrupulous hygiene, which have led to unprecedented public health measures around the world.
3. In light of the devastation COVID-19 has already caused and the extreme difficulty in stopping its transmission, the President has declared a national emergency; forty-eight U.S. states—including Georgia—have declared states of emergency; and numerous states and localities—including Georgia and many of its cities and counties—have issued “shelter-in-place” orders requiring residents to stay in their homes. These extreme measures all seek to reduce the spread of the virus and, ultimately, save lives.
4. Unfortunately, U.S. Immigration and Customs Enforcement (ICE), who detains immigrants who may be subject to removal from the United States, has failed to follow suit. Despite warnings from thousands of medical and public health professionals that releasing detained immigrants is the only viable option to avert an imminent public health threat, the agency has generally refused to do so in the absence of court intervention.
1
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Case 4:20-cv-00069-RSB-CLR Document 1 Filed 04/08/20 Page 6 of 41
5. Federal judges across the country have ordered the urgent release of numerous immigrants, explaining the pressing health risks created by ICE detention and other types of imprisonment.1
6. In immigration detention facilities—including Folkston ICE Processing Center “Folkston”) in Folkston, Georgia, where Plaintiffs-Petitioners (“Petitioners”) are imprisoned— social distancing is virtually impossible. In these congregate environments, hundreds or thousands of people live, eat, and sleep together in close quarters, and contact with other detainees and ICE personnel is a fact of life. ICE detention facilities are also notorious for their unsanitary conditions and meager provision of hygiene products. Under these circumstances, an outbreak of COVID-19 will “spread like wildfire,” according to a former high-level ICE official.
7. Due to their underlying medical conditions, Petitioners are particularly vulnerable to serious cases of COVID-19. If they contract the virus, there is a high risk they will require critical care—largely unavailable in southern Georgia where Folkston is located—and face serious illness and death.
1See, e.g., Xochihua-Jaimes v. Barr, 2020 WL 1429877 (9th Cir. Mar. 24, 2020); Hope v. Doll, Case No. 1:20-cv-00562-JEJ (M.D. Pa. Apr. 7, 2020), ECF No. 11; Martin Munoz v. Wolf, Case No. 20-cv-00625-TJH-SHK (C.D. Cal. Apr. 2, 2020), ECF No. 14; Robles Rodriguez v. Wolf, 20-cv-00627-TJH-GJS (C.D. Cal. Apr. 2, 2020), ECF No. 37; Hernandez v. Wolf, CV 20-60017TJH (KSx)(C.D. Cal. Apr. 1, 2020), ECF No. 17; Arana v. Barr, 2020 WL 1502039 (S.D.N.Y. Mar. 27, 2020); Xuyue Zhang v. Barr, 2020 WL 1502607 (C.D. Cal. March 27, 2020); Basank v. Decker, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020); Castillo v. Barr, 2020 WL 1502864 (C.D. Cal. March 27, 2020); Thakker v. Doll, No. 1:20-cv-00480-JEJ (M.D. Pa. Mar. 31, 2020), ECF No. 47; Coronel v. Decker, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020); Fraihat v. Wolf, No. ED CV 20-00590 TJH (KSx) (C.D. Cal. Mar. 30, 2020); Calderon Jimenez v. Wolf, No. 18 Civ. 10225 (D. Mass. Mar. 26, 2020), ECF No. 507; United States v. Stephens, 2020 WL 1295155, at *2 (S.D. N.Y. Mar. 19, 2020); Matter of Extradition of Toledo Manrique, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020).
2
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Case 4:20-cv-00069-RSB-CLR Document 1 Filed 04/08/20 Page 7 of 41
8. Petitioners bring this action to remedy ICE’s violations of their constitutional rights and to protect themselves—as well as others detained or employed at Folkston or living in the surrounding community—from the imminent harm that will result from their continued detention.
II. PARTIES 9. Petitioner Jenner Benavides2 is a 27-year-old transgender woman and citizen of Mexico
who has been detained by ICE at Folkston since May 2019. She entered the U.S. at the age of 10 and later became a DACA recipient. She applied for asylum based on continuous sexual assault and abuse she endured as a child in Mexico, and her gender and sexual identity. She is currently appealing the denial of this relief to the BIA and applying for a U-visa. In 2014 her mother died from stomach cancer, leaving Ms. Benavides as the sole caretaker and custodian of her four minor siblings in Nashville, Tennessee. Ms. Benavides is HIV positive and suffers from bipolar disorder and severe depression and anxiety. As a consequence of her health condition, she is at high risk for severe illness or death if she contracts COVID-19.
10. Petitioner David Fernandez is a 45-year-old citizen of Mexico who has been detained by at Folkston since December 2019. He has lived in the United States for nearly 18 years and has worked consistently in labor jobs, including farming, construction, and roofing. He is currently seeking asylum. Mr. Fernandez suffers from diabetes and has a history of tuberculosis. ICE has not consistently provided him with his necessary insulin injections, so his health has deteriorated while in detention. As a consequence of his health conditions, he is at high risk for severe illness or death if he contracts COVID-19.
2 Petitioner Jenner Benavides, David Fernandez, and Gerardo Arriaga have filed this action using pseudonyms. They seek leave to proceed pseudonymously in a concurrently filed motion.
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11. Petitioner Gerardo Arriaga is a 24-year-old citizen of Peru. He is married to a U.S. citizen and was living in Atlanta, Georgia before ICE detained him. He is eligible for adjustment of status. Mr. Arriaga is currently detained at Folkston and has been in ICE custody since March 2020. He suffers from Lupus, an autoimmune disease that causes him to be immunocompromised and causes inflammation and damage to his joints, skin, kidneys, blood, heart, and lungs. As a consequence of his health conditions, he is at high risk for severe illness or death if he contracts COVID-19.
12. Respondent-Defendant (“Respondent”) Patrick Gartland is the Warden of Folkston ICE Processing Center. Pursuant to a contract with ICE, Mr. Gartland is responsible for the operation of Folkston, where Petitioners are detained.
13. Respondent Thomas Giles is the Field Office Director for the ICE Atlanta Field Office. The ICE Atlanta Field Office has complete control over the admission and release of noncitizens detained at Folkston. Respondent Giles is a legal custodian of Petitioners. He is sued in his official capacity.
14. Respondent Matthew T. Albence is the Deputy Director and Senior Official Performing the Duties of the Director of ICE. Respondent Albence is responsible for ICE’s policies, practices, and procedures, including those relating to the detention of immigrants. He is sued in his official capacity.
15. Respondent Chad Wolf is the Acting Secretary of the United States Department of Homeland Security (DHS). In this capacity, he is responsible for the implementation and enforcement of immigration laws and oversees ICE. He is sued in his official capacity.
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16. Respondent ICE is a federal law enforcement agency within DHS. ICE is responsible for the criminal and civil enforcement of the immigration laws, including the detention and removal of immigrants.
III. JURISDICTION AND VENUE 17. This Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1331
(federal question), 28 U.S.C. § 1346 (United States as defendant), 28 U.S.C. § 2241 (habeas jurisdiction), 28 U.S.C. § 1651 (All Writs Act), Article I, Section 9, clause 2 of the U.S. Constitution (the Suspension Clause), and the Due Process Clause of the Fifth Amendment to the U.S. Constitution.
18. The district courts have jurisdiction to hear habeas corpus claims by noncitizens challenging the lawfulness of their detention. Jennings v. Rodriguez, 138 S. Ct. 830 (2018); Demore v. Kim, 538 U.S. 510, 516-17 (2003); Zadvydas v. Davis, 533 U.S. 678, 687 (2001).
19. Venue is proper in the Southern District of Georgia pursuant to 28 U.S.C. § 1391(e) because Respondents are federal officers sued in their official capacity; Respondent Gartland resides in this District; Petitioners are currently detained in this District; and a substantial part of the events or omissions giving rise to this action occurred in this District. Venue is also proper under 28 U.S.C. § 2241 because Respondents exercise control over Petitioners.
IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES 20. Petitioners have no administrative remedies to exhaust because no administrative
process exists to raise a constitutional challenge to their detention. “[A] petitioner need not exhaust his administrative remedies where the administrative remedy will not provide relief commensurate with the claim.” Boz v. United States, 248 F.3d 1299, 1300 (11th Cir. 2001). Thus, “[b]ecause the BIA does not have the power to decide constitutional claims—like the validity of a federal
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statute—[certain constitutional] need not be administratively exhausted.” Warsame v. U.S.
Attorney Gen., 796 Fed. Appx. 993, 1006 (11th Cir. 2020). See also Haitian Refugee Ctr., Inc. v.
Nelson, 872 F.2d 1555, 1561 (11th Cir. 1989), aff’d sub nom. McNary v. Haitian Refugee Ctr.,
Inc., 498 U.S. 479 (1991) (exhaustion had “no bearing” where petitioner sought to make a
constitutional challenge to procedures adopted by the INS).
V. STATEMENT OF FACTS A. COVID-19 Is a Global Pandemic that Poses a Significant Risk of Death or Serious Illness to Petitioners
21. Coronavirus disease 2019 (“COVID-19”) is a highly contagious respiratory disease
caused by a newly discovered coronavirus. Since the first case was reported in December 2019,
the transmission of COVID-19 has been growing exponentially. The number of reported cases
climbed from 1 to 100,000 in 67 days; from 100,000 to 200,000 in only 11 days; and from 200,000 to 300,000 in just 4 days.3
22. On March 11, 2020, the World Health Organization (“WHO”) declared the outbreak a global pandemic,4 and COVID-19 has now touched nearly every country on the planet..5
As of April 7, 2020, the number of confirmed cases worldwide has surpassed 1.4 million, including
3 Berkeley Lovelace Jr., et al., CNBC, Coronavirus pandemic is accelerating as cases eclipse 350,000, WHO says (last updated Mar. 23, 2020), https://www.cnbc.com/2020/03/23/coronavirus-pandemic-is-accelerating-as-cases-eclipse350000-who-says.html 4 Tedros Adhanom Ghebreyesus, WHO Director-General’s opening remarks at the media briefing on COVID-19 – 11 March 2020 (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-mediabriefing-on-covid-19---11-march-2020 5 Coronavirus disease 2019 (COVID-19) Situation Report – 73, World Health Organization (April 2, 2020), https://www.who.int/docs/default-source/coronaviruse/situationreports/20200402-sitrep-73-covid-19.pdf?sfvrsn=5ae25bc7_4https://www.who.int/docs/defaultsource/coronaviruse/situation-reports/20200330-sitrep-70-covid-19.pdf?sfvrsn=7e0fe3f8_2
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over 394,278 people in the United States. Over 81,858 people have died as a result of COVID-19 worldwide, including at least 12,717 in the United States.6
23. Nationally, projections by the Centers for Disease Control and Prevention (“CDC”) indicate that over 200 million people in the United States could be infected with COVID-19 over the course of the pandemic without effective public health intervention, with as many as 1.7 million deaths in the most severe projections.7 On March 23, 2020, the WHO warned that the United States could become the next epicenter of the pandemic.8 And indeed on March 26, 2020, the United States surpassed every other country in the world in number of confirmed COVID-19 cases.9
24. In the state of Georgia, transmission of COVID-19 has also been rampant. On March 14, 2020, Governor Brian Kemp declared a public health state of emergency, describing the spread of COVID-19 as an “unprecedented public health threat.”10 At the time, there were 64 diagnosed COVID-19 cases spread across 15 counties.11 As of April 7, 2020, less than a month
6 Worldometer: Coronavirus, https://www.worldometers.info/coronavirus/#countries (last accessed Apr. 7, 2020). 7 Sheri Fink, Worst-Case Estimates for U.S. Coronavirus Deaths, The New York Times (last updated Mar. 18, 2020), https://www.nytimes.com/2020/03/13/us/coronavirus-deathsestimate.html 8 Sarah Boseley, US may become next centre of coronavirus pandemic, says WHO, The Guardian (Mar. 24, 2020), https://www.theguardian.com/world/2020/mar/24/us-may-become-centre-ofcoronavirus-pandemic-who-says 9 U.S. Now Leads the World in Confirmed Cases, The New York Times (last updated Apr. 1, 2020), https://www.nytimes.com/2020/03/26/world/coronavirusnews.htmlhttps://www.nytimes.com/2020/03/26/world/coronavirus-news.html 10 Governor Brian P. Kemp, Kemp Declares Public Health State of Emergency, Office of the Governor (Mar. 16, 2020), https://gov.georgia.gov/press-releases/2020-03-16/kemp-declarespublic-health-state-emergency 11 Id.
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later, the number of reported cases had jumped to 8,818 with 155 counties now affected.12 The
number of reported deaths from COVID-19 is 329, making Georgia the state with the ninth highest number of COVID-19-related deaths in the United States.13 Governor Kemp issued a shelter in place order for the state of Georgia on April 3, 2020.14
25. The risk of serious illness or death from COVID-19 is greater in Georgia than in
other parts of the United States because the population is overall much less healthy. Georgia has
among the highest incidence of diabetes, hypertension, obesity and strokes in the country, particularly in areas with high poverty rates.15
26. Due to the lack of widespread testing available in most countries, including the
United States, the number of confirmed cases is likely but a fraction of the true number of COVID-
19 cases worldwide. As of April 6, 2020, approximately 1,917,095 tests have been administered in the entire United States; in Georgia, only 40,012.16 Because of the shortage of tests in the United States—admitted to be a “failing” by top infectious disease expert Dr. Anthony Fauci17—the CDC
12 Georgia Department of Public Health COVID-19 Daily Status Report (Apr. 7, 2020), https://dph.georgia.gov/covid-19-daily-status-report 13 Listing of United States Total Coronavirus Cases (last updated Apr. 7, 2020), https://www.worldometers.info/coronavirus/country/us/ 14 Governor Brian P. Kemp, Governor Kemp Issues Shelter in Place Order, Office of the Governor (Apr. 2, 2020), https://gov.georgia.gov/press-releases/2020-04-02/governor-kempissues-shelter-place-order 15 Alan Judd, In hard-hit Georgia, virus expected to linger, The Atlanta Journal-Constitution (Mar. 26, 2020), https://www.ajc.com/news/hard-hit-georgia-virus-expectedlinger/AYMvVN9SIq8A0RUgUzIt5O/ 16 The COVID Tracking Project, Our most up-to date data and annotations (last updated Apr. 6, 2020), https://covidtracking.com/data/ 17 Elizabeth Chuck, ‘It is a failing. Let’s admit,’ Fauci says of coronavirus testing capacity NBC News (Mar. 12, 2020), https://www.nbcnews.com/health/health-news/it-failing-let-s-admit-itfauci-says-coronavirus-testing-n1157036
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currently recommends prioritizing testing for symptomatic healthcare providers and hospitalized patients18—which means that the number of diagnosed COVID-19 cases may be only the tip of a very large iceberg.19
i. Transmission of COVID-19 27. COVID-19 easily spreads through respiratory droplets that an infected person expels when they cough, sneeze, speak, or breathe. Transmission occurs if these virus-carrying droplets land directly on a nearby person’s nose or mouth. It can also occur when a person inhales these droplets or touches a contaminated surface and then touches their mouth, nose, or eyes.20 The coronavirus can survive up to three hours in the air, four hours on copper, 24 hours on cardboard, and two to three days on plastic and stainless steel.21 28. Many people with COVID-19 remain completely asymptomatic and may never realize that they are infected, yet can still spread the disease. Likewise, infected people who may eventually develop symptoms are contagious even when they are pre-symptomatic and may account for 50% of transmissions. Interventions that isolate or quarantine only symptomatic individuals, therefore, cannot effectively contain transmission.
18 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), Evaluating and Testing Persons for Coronavirus Disease 2019 (COVID-19) (last updated Mar. 24, 2020), https://www.cdc.gov/coronavirus/2019-nCoV/hcp/clinical-criteria.html 19 George Citroner, How Many People in the United States Actually Have COVID-19?, Healthline (Mar. 18, 2020), https://www.healthline.com/health-news/how-many-coronaviruscases-are-there 20 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), How Coronavirus Spreads (last reviewed Mar. 4, 2020), https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/how-covid-spreads.html 21 Harvard Health Publishing, As coronavirus spreads, many questions and some answers Harvard Medical School, Coronavirus Resource Center (last updated Apr. 1, 2020), https://www.health.harvard.edu/diseases-and-conditions/coronavirus-resource-center
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ii. Symptoms of COVID-19, Underlying Risks Factors, and Long-Term Effects
29. Even though it causes only mild symptoms or no symptoms at all for some, COVID-19 can, for others, result in more serious injury, including respiratory failure, kidney failure, and death.
30. Older individuals and those with certain medical conditions are at particularly high risk for serious illness or death from COVID-19.
31. Medical conditions that increase the risk of severe illness or death from COVID-19 for individuals of any age include blood disorders, chronic kidney or liver disease, compromised immune system, diabetes and other endocrine disorders, metabolic disorders, heart and lung disease, neurological and neurodevelopmental conditions, and current or recent pregnancy.
32. Infected individuals can face prolonged treatment and recovery periods, requiring intensive hospital care and ventilators that are in increasingly short supply. Those who do not die can suffer serious damage to the lungs, heart, liver, or other organs.22
33. Complications from COVID-19 can manifest at an alarming pace. Patients can go from being medically stable with no need for supplemental oxygen to requiring intubation and ventilator-assisted breathing within 24 hours. Various studies estimate that the average length of time from onset of symptoms to hospitalization or the development of severe symptoms is only 79 days.
22 Lisa Maragakis, M.D., M.P.H., I’ve been diagnosed with the new coronavirus disease, COVID-19. What should I expect? Johns Hopkins Medicine, https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/diagnosed-withcovid-19-what-to-expect
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iii. Prevention of COVID-19 Transmission 34. There is currently no vaccine against COVID-19. Nor are there any known prophylactic medications that will prevent or reduce the risk of a COVID-19 infection. Therefore, the only effective way to protect people against the risk of serious illness or death from COVID19 is to limit their exposure to the virus through social distancing—i.e., physical separation of at least six feet from all others—and vigilant hygiene, including frequent and thorough handwashing with soap and water.23 35. The high incidence of asymptomatic transmission, alongside the nationwide dearth of diagnostic tests to identify and isolate infected individuals, necessitate strict social distancing measures to interrupt transmission. 36. Social distancing reduces the average number of contacts between people, which lowers every individual’s risk both for acquiring COVID-19 and transmitting it to another person. 37. Strict social distancing measures have proven effective in reducing the transmission of COVID-19. On January 23, 2020, the Chinese government instituted a complete lockdown of Wuhan, China, where the COVID-19 outbreak began, to attempt to fight the spread of the virus. They shut down all schools, offices, and factories and banned private vehicles from city streets. This lockdown expanded to other cities in Hubei province in the next several days, extending to 60 million people in China.24 Following the lockdown, Wuhan saw a sustained decrease in
23 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), How to Protect Yourself (last reviewed Apr. 1, 2020), https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/prevention.html 24 Amy Gunia, China’s Draconian Lockdown Is Getting Credit for Slowing Coronavirus. Would It Work Anywhere Else?, Time Magazine (Mar. 13, 2020), https://time.com/5796425/chinacoronavirus-lockdown/
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transmission of COVID-19, and two months later, the daily number of reported cases dropped to zero.25
38. Throughout the world, other countries have also implemented drastic social
distancing measures in an effort to control the COVID-19 pandemic and protect people’s health
and lives. France, for example, imposed a strict nationwide lockdown, prohibiting gatherings of any size and ordering all residents to stay at home.26 Overall, countries encompassing an estimated one third of the world’s population have enacted similar restrictions.27 Across the United States,
cities and states are imposing increasingly stringent measures to effectuate social distancing. As
of April 2, 2020, at least 38 states, 48 counties, and 14 cities, and had ordered their residents to “shelter in place” or stay at home.28
B. COVID-19 Will Likely Ravage Jails, Prisons, and Detention Centers 39. Imprisoned populations, including those in ICE detention facilities, are at higher
risk for infectious disease, as compared to the general population. Factors that heighten their risk
include poor sanitation, high population density, and “a higher prevalence of infectious and chronic diseases and . . . poorer health than the general population, even at younger ages.”29
25 Id. 26 Bryan Pietsch, ‘We are at war’: France’s president just announced a 15-day lockdown, banning public gatherings and walks outdoors, Business Insider (Mar. 16, 2020), https://www.businessinsider.com/coronavirus-france-president-macron-announces-15-daylockdown-2020-3 27 Juliana Kaplan, Lauren Frias, & Morgan McFall-Johnson, A Third of the Global Population Is On Coronavirus Lockdown, Business Insider (last updated Apr. 6, 2020) https://www.businessinsider.com/countries-on-lockdown-coronavirus-italy-2020-3 28 Sarah Mervosh, Denise Lu, and Vanessa Swales, See Which States and Cities Have Told Residents to Stay at Home, The New York Times (last updated Apr. 3, 2020) https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html 29 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and
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40. Dr. Scott Allen and Dr. Josiah Rich, experts in the fields of detention health, infectious disease, and public health who advise DHS’s Office of Civil Rights and Civil Liberties, have urged Congress to take immediate actions to slow the spread of COVID-19 in ICE detention centers, including releasing immigrants to facilitate social distancing—which, they say, is an “oxymoron” in congregate settings.30
41. In March 2020, over 3,000 medical professionals across the United States also urged ICE to release individuals and families from detention “to prevent the spread of COVID-19 and mitigate the harm of an outbreak” to detained individuals, as well as to facility staff.31 They warned that social distancing measures recommended by the CDC are nearly impossible in immigration detention and that large-scale quarantines may be unfeasible at ICE facilities that are already at maximum capacity. They also expressed concern that “isolation may be misused and place individuals at higher risk of neglect and death.”
42. Like these and other experts, 32 Drs. Allen and Rich also warned of the dire consequences that a COVID-19 outbreak within an ICE detention facility would have on the community outside the facility. They describe a “tinderbox” scenario where a rapid outbreak inside
Detention Facilities (last reviewed Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html 30 Scott A. Allen, MD, FACP and Josiah Rich, MD, MPH Letter to Congress (Mar. 19, 2020) https://assets.documentcloud.org/documents/6816336/032020-Letter-From-Drs-Allen-Rich-toCongress-Re.pdf 31 Janus Rose, Thousands of Doctors Deman ICE Release Detainees to Stop a COVID-19 Disaster, Vice.com (Mar. 18, 2020), https://www.vice.com/en_us/article/4agp4w/thousands-ofdoctors-demand-ice-release-detainees-to-stop-a-covid-19-disaster 32 See, e.g., Rich Schapiro, Coronavirus could ‘wreak havoc’ on U.S. jails, experts warn, NBC News (Mar. 12, 2020), https://www.nbcnews.com/news/us-news/coronavirus-could-wreakhavoc-u-s-jails-experts-warn-n1156586 (“An outbreak of the deadly virus inside the walls of a U.S. prison or jail is now a question of when, not if, according to health experts.”).
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a facility would result in the hospitalization of multiple detained people in a short period of time, which would then spread the virus to the surrounding community and create a demand for ventilators far exceeding the supply.
43. Once a disease is introduced into a jail, prison, or detention facility, it spreads faster than under most other circumstances due to overcrowding, poor sanitation and hygiene, and lack of access to adequate medical services. For these same reasons, the outbreak is harder to control.33 The severe outbreaks of COVID-19 in congregate environments, such as cruise ships and nursing homes, illustrate just how rapidly and widely COVID-19 would rip through an ICE detention facility. On the Diamond Princess cruise ship, for example, approximately 700 passengers and crew on board were infected over the course of three weeks despite the initiation of quarantine protocols.
44. Good hygiene is also critical to reducing exposure to COVID-19, but the notoriously unsanitary conditions in detention centers and ICE’s meager provision of hygiene and cleaning products rob detained individuals of the ability to practice good hygiene.
45. Despite the global pandemic and shelter-in-place orders across the country, ICE continues to bring new people into detention centers and to transfer previously detained people between facilities.34 Some detained people have staged public protests, including initiating hunger
33 Christina Potter, Outbreaks in Migrant Detention Facilities, Outbreak Observatory (Jul. 11, 2019), https://www.outbreakobservatory.org/outbreakthursday-1/7/11/2019/outbreaks-inmigrant-detention-facilities 34 U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, ICE Guidance on COVID-19 (last reviewed/updated Apr. 2, 2020), https://www.ice.gov/covid19 (“ . . . our law enforcement officers and agents continue daily enforcement operations to make criminal and civil arrests.”); see Richard Hall, Coronavirus: ICE Crackdown Stokes Fears for Safety of Undocumented Immigrants During Pandemic, Independent (Mar. 15, 2020) (noting that “[i]n New York, immigration advocates have noted a marked increase in ICE activity in recent months, which has not slowed as the coronavirus outbreak has worsened.”). On March 18,
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strikes and threatening suicide, to express their outrage at being housed with newly arriving
individuals who may have been exposed to COVID-19.35
46. Correctional staff is also an especially dangerous vector for a COVID-19 outbreak
within a detention center since they regularly travel back and forth between the outside world and
the detention facilities where they work.
47. ICE’s past inept handling of infectious disease outbreaks in detention centers
foreshadows the impact once COVID-19 hits Folkston. In 2019, a mumps outbreak across 57
immigration detention facilities throughout the country led to almost 900 cases of mumps
contracted inside the facilities36 before the outbreak spread to surrounding communities.37 ICE
2020, ICE announced it would “temporarily adjust” its enforcement practices during the COVID-19 outbreak,” but declined to say it would stop arresting people altogether. See Rebecca Klar, ICE Pausing Most Enforcement During Coronavirus Crisis, The Hill (Mar. 18, 2020), https://thehill.com/latino/488362-ice-pausing-most-immigration-enforcement-duringcoronavirus-crisis 35 Ice detainees threaten suicide, stage protests over coronavirus fears, The Washington Post (Mar. 25, 2020) https://www.washingtonpost.com/video/national/ice-detainees-threaten-suicidestage-protests-over-coronavirus-fears/2020/03/25/8232738e-0b1e-4fdb-8538456e269a8eb7_video.html 36 Leung J, Elson D, Sanders K, et al. Notes from the Field: Mumps in Detention Facilities that House Detained Migrants—United States, September 2018–August 2019, MMWR Morb Mortal Wkly, 749–50 (Aug. 30, 2019), https://www.cdc.gov/mmwr/volumes/68/wr/pdfs/mm6834a4H.pdf; Roxanne Scott, Stewart Detention Center Watches For New Cases Of Mumps, WABE (Mar. 8, 2019), https://www.wabe.org/stewart-detention-center-watches-for-new-cases-ofmumps/ 37 See Terrence McDonald, Bergen County Won’t Say if Mumps Outbreak Affects Only Immigrant Detainees, Northjersey.com (Jun. 13, 2019), https://www.northjersey.com/story/news/bergen/2019/06/13/bergen-county-nj-wont-say-if-jailmumps-outbreak-hit-only-ice-inmates/1448708001. In addition, in 2019, thousands of individuals in 39 immigration detention centers across the country were exposed to chickenpox. See Emma Ockerman, Migrant Detention Centers Are Getting Slammed with Mumps and Chickenpox, Vice News (Jun. 14, 2020), https://www.vice.com/en_us/article/mb8k5q/migrantdetention-centers-are-getting-slammed-with-mumps-and-chicken-pox.
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and CBP facilities have also been sites of other infectious outbreaks in recent years,38 as have other prisons and jails.39
48. COVID-19 has indeed already started to spread inside U.S. prisons and jails across the United States, including in Georgia 40and New York City.41
49. ICE has publicly reported 13 cases of COVID-19 among its detained population as of April 6, 2020, and identified 56 additional cases among its personnel, including seven employees who work at an ICE detention facility.42 In addition, according to a leaked internal report, ICE has placed at least nine detainees in medical isolation and is monitoring 24 more in ten different detention facilities—all likely due to suspicion of COVID-19.43
38 Christina Potter, Outbreak Observatory supra n. 33, (describing outbreaks of acute respiratory illnesses like influenza, and other diseases like scabies and chickenpox). 39 J. O’Grady, et al., Tuberculosis in prisons: anatomy of global neglect, European Respiratory Journal (2011), https://erj.ersjournals.com/content/38/4/752.short (stating that tuberculosis prevalence among prisoners worldwide can be up to 50 times higher than national averages). 40 Joshua Sharpe and Christian Boone, Ga. Inmate dies from COVID-19 as virus hits more prisons, The Atlanta Journal-Constitution (Mar. 27, 2020), https://www.ajc.com/news/local/breaking-inmate-dies-from-covid-outbreak-worsensprison/TzQZL4uXfK4GzH9ebSFNQN/ 41 Emma Grey Ellis, Covid-19 Poses a Heightened Threat in jails and Prisons, wired.com (Mar. 24, 2020), https://www.wired.com/story/coronavirus-covid-19-jails-prisons/ 42 ICE Guidance on COVID-19, supra n. 34 43 Ken Klippenstein, Exclusive: ICE Detainees Are Being Quarantined, A leaked document about the Department of Homeland Security’s Covid-19 response suggests that the crisis has made its way to border detention facilities, The Nation (Mar. 24, 2020), https://www.thenation.com/article/society/corona-covid-immigration-detention/
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50. Nationally and internationally, governments and jail and prison staff have already
recognized the threat posed by COVID-19. Authorities in Iran,44 Ethiopia,45 and the state of
Texas46 have all begun to release people to mitigate the harm that the impending spread of COVID-
19 will cause. Some jails in Georgia have done the same,47 including Dougherty County Detention
Center in Albany, which is suffering from one of the most severe outbreaks in the state.48 The
Federal Bureau of Prisons has also instructed prison directors to prioritize releasing federal inmates
to home confinement, taking into consideration factors including “[t]he age and vulnerability of
the inmate to COVID-19, in accordance with the [CDC] guidelines.”49
51. Still, ICE continues to detain even the most medically vulnerable noncitizens
despite the grave risk of serious illness or death.
44 Babk Dehghanpisheh and Stephanie Nebehay, Iran Temporarily Releases 70,000 Prisoners as Coronavirus Cases Surge, Reuters (Mar. 9, 2020), https://www.reuters.com/article/us-healthcoronavirus-iran/iran-temporarily-releases-70000-prisoners-as-coronavirus-cases-surgeidUSKBN20W1E5 45 Bukola Adebayo, Ethiopia pardons more than 4,000 prisoners to help prevent coronavirus spread, CNN (Mar. 26, 2020), https://www.cnn.com/2020/03/26/africa/ethiopia-pardons-4000prisoners-over-coronavirus/index.html 46 Dillon Collier, Bexar County jail population down more than 500 inmates after release of nonviolent offenders, KSAT.com (last updated Mar. 25, 2020), https://www.ksat.com/news/local/2020/03/25/bexar-county-jail-population-down-more-than500-inmates-after-release-of-nonviolent-offenders/ 47 Christian Boone, Hall, Fulton counties releasing nonviolent offenders early as virus looms, The Atlanta Journal-Constitution (Mar. 23, 2020), https://www.ajc.com/news/crime--law/hallfulton-counties-releasing-nonviolent-offenders-early-virus-looms/lOZTaZ9lVSwoy38Cp6XJIP/; 48 Stanley Dunlap, Georgia jailers cope with COVID-19; release inmates, quarantine arrivals, Georgia Recorder (Mar. 30, 2020), https://georgiarecorder.com/2020/03/30/georgia-jailers-copewith-covid-19-release-inmates-quarantine-arrivals/ 49 Office of the Attorney General, Washington, DC, Memorandum for Director of Bureau Prisons, Prioritization of Home Confinement As Appropriate in Response to COVID-19 Pandemic (Mar. 26, 2020), https://www.politico.com/f/?id=00000171-1826-d4a1-ad77fda671420000
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C. Folkston Detention Center Is Primed for COVID-19 Exposure and Severe Outbreaks i. Existing Conditions at Folkston Will Further Enable COVID-19 Transmission
52. The ICE Atlanta Field Office currently detains an estimated 1,000 noncitizens at Folkston.
53. Preventing the spread of COVID-19 inside Folkston is impossible. The design of immigration detention facilities generally, and Folkston in particular, requires detained individuals to remain in close contact with one another—the opposite of the social distancing recommended for stopping the spread of lethal coronavirus.
54. Folkston houses people in very close quarters, making social distancing and the recommended hygiene measures effectively impossible. Most people sleep in bunk rooms housing dozens of immigrants—where beds are feet apart from each other—and use shared toilets and showers. Folkston also has some smaller cells housing multiple people with shared bathrooms. People eat together in shared cafeterias and regularly congregate in common areas of their housing units.50
55. The conditions at Folkston are also flagrantly unsanitary and dangerous to the health of detained individuals. Private contractors operate Folkston, and the DHS Office of Inspector General has repeatedly concluded that ICE fails to hold detention facility contractors accountable for meeting performance standards required to ensure humane conditions.51
50 Keith Gardner, dvids.net, Folkston Processing Center B-Roll (Apr. 4, 2017), https://www.dvidshub.net/video/529423/folkston-processing-center-b-roll 51 See U.S. Department of Homeland Security, Office of the Inspector General, OIG-19-18, ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards, 1 (Jan. 29, 2019),
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56. At Folkston, food preparation and service are communal with little opportunity for surface disinfection. Detained people, overseen by food service contractors, staff the kitchens. People detained in Folkston have for reported being served food that is undercooked or spoiled.
ii. Folkston Has a Dismal Medical Care Track Record and Are Currently Ignoring Reported Flu-like Symptoms Among the Detained Population
57. Respondents have consistently failed to provide even minimally adequate medical care to individuals detained at Folkston. They cannot possibly be trusted to protect those in their custody from a potentially lethal infectious disease outbreak that has overwhelmed healthcare systems around the world.
58. Critical medical care is routinely delayed—sometimes for months—or denied outright.
59. Detained people at Folkston have reported to advocates that medical staff dismiss detained people’s medical concerns or ridicule them as “dramatic.” On one occasion, other detained individuals had to stage a protest to demand a response to a person exhibiting signs of severe medical distress. In another case, Folkston staff ignored a man and his attorney’s repeated requests to go to the emergency room due to excruciating abdominal pain. His appendix later ruptured.
60. When detained people at Folkston do manage to get the attention of a medical provider, they are often given substandard care or are not provided with the proper medications.
https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf; U.S. Department of Homeland Security, Office of the Inspector General, OIG-18-67, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, 1 (Jun. 26, 2018), https://www.oig.dhs.gov/sites/default/files/assets/20//18-06/OIG-18-67-Jun18.pdf.
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61. Detained individuals with diabetes—a condition that the CDC considers a risk factor for severe COVID-19, “particularly if not well controlled”52—have reported diets that are inadequate given their medical needs. Petitioner David Fernandez has received as few as three out of the fourteen insulin injections per week he requires to manage his diabetes, which has left him so weak and tired that he could not stand up.
62. In the context of the COVID-19 pandemic, early reports indicate that ICE is using the same playbook—ignoring pleas for help, threatening those who seek medical care with punishment, and waiting until it may be too late.
63. For example, on March 19, 2020, a man detained at Folkston reported that he was afraid of contracting COVID-19 because he feared Folkston would not provide proper medical treatment. Another man at Folkston reported that there was at least one person in his housing unit who was experiencing coughing, fever, and shortness of breath but had not been moved to another location.
64. Preliminary data suggests that a person with COVID-19 is most infectious during the early stage of the disease.53 Early, proactive action is necessary to prevent the virus’s spread. The well-documented failure to provide adequate and timely medical care at Folkston is the mark of a system that cannot possibly cope with the spread of COVID-19.
52 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), People who are at higher risk for severe illness (last reviewed Mar. 31, 2020), https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/people-at-higher-risk.html 53 Helen Branswell, People ‘shed’ high levels of coronavirus, study finds, but most are likely not infectious after recovery begins, statnews.com (Mar. 9, 2020), https://www.statnews.com/2020/03/09/people-shed-high-levels-of-coronavirus-study-finds-butmost-are-likely-not-infectious-after-recovery-begins/
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iii. It Is Only a Matter of Time Before COVID-19 Reaches Folkston Detention Center
65. COVID-19 is bound to reach Folkston if it has not already. In Charlton County, where Folkston is located, there were three confirmed case of COVID-19 as of April 7, 202054— including a woman who lives in Folkston with two family members who work in the local public schools and came into contact with students.55 Duval County, Florida, includes the city of Jacksonville, which is the closest metro area to Folkston—about 45 miles away. Duval County had 524 confirmed cases as of April 7, 2020.56
66. There is great risk that people traveling in and out of Folkston will expose Petitioners to COVID-19.
67. Staff at Folkston arrive and leave on a shift basis, and there is limited ability to adequately screen incoming staff for new, asymptomatic infection.
68. Attorneys continue to visit their detained clients in Folkston because most immigration court hearings are still proceeding and many filing deadlines still apply. Since the pandemic began, ICE has permitted attorneys to enter Folkston without taking adequate precautions to limit exposure in the event that a visiting attorney is a COVID-19 carrier. At Folkston, attorneys were permitted to enter for legal visits in late March without wearing any
54 Georgia Department of Public Health COVID-19 Daily Status Report (Apr. 7, 2020). 55 Gordon Jackson, Folkston coronavirus case confirmed, The Brunswick News (Mar. 17, 2020), https://thebrunswicknews.com/news/local_news/folkston-coronavirus-caseconfirmed/article_79dd9c5d-f2dc-554b-8993-1ae66bcd127f.html 56 Florida Department of Health, Division of Disease Control and Health Protection, Florida’s COVID-19 data and Surveillance Dashboard, (last updated April 7, 2020) https://experience.arcgis.com/experience/96dd742462124fa0b38ddedb9b25e429
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PPE. They merely had to submit to temperature checks and answer a brief set of questions about whether they had traveled recently or had contact with a confirmed case of COVID-19.
69. On March 25, an attorney visiting Folkston observed 50-60 detained people in the same room, sitting inches away from each other, waiting for their court hearings to be conducted by video teleconferencing (VTC). She attended two hearings with clients that day in small VTC rooms that provide just enough space for two people to sit next to each other facing the VTC camera.
70. There are myriad ways in which COVID-19 is likely to enter or has already entered Folkston, none of which Respondents can meaningfully address without blanket testing of every individual who enters. However, testing shortages make such a measure impossible.
71. Once the virus appears in Folkston, it will be effectively impossible for Petitioners to protect themselves from infection through social distancing and vigilant hygiene— the only known mitigation measures. If they do contract COVID-19, Petitioners—who are already at particularly high risk of serious illness and death—are unlikely to receive the medical care they need.
D. The Lack of Hospital Resources Near Folkston Will Put Petitioners at Even Greater Risk
72. The local and regional hospitals near Folkston are ill-equipped to handle a COVID19 outbreak within the facility, increasing the life-threatening risks to Petitioners.
73. An outbreak of COVID-19 at Folkston would put at risk not only detained populations but also the thousands of ICE officers, medical personnel, contract workers, and many others who work in the facility, diverting crucial and limited medical resources.
74. Patients who are hospitalized for COVID-19 commonly require intensive care and a ventilator to assist breathing. Even some younger and healthier individuals who contract COVID-
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19 may require supportive care.57 And those who develop serious complications will need advanced support, including highly specialized equipment that is in limited supply and an entire team of care providers. This level of support is especially difficult to provide to detained individuals because ICE detention facilities lack adequate medical care infrastructure.
75. Folkston is geographically isolated from appropriate levels of medical care to treat COVID-19. The disease requires an intensive care unit with appropriate medical equipment and staff. The closest hospitals to Folkston are either critical access hospitals without the necessary facilities or regional hospitals that serve many counties and are already overwhelmed or will quickly become overwhelmed if there are outbreaks within these detention centers.
76. Critical access hospitals are generally located in rural areas where the access to nearby hospitals is extremely limited. They have fewer than 25 beds and are designed to care for patients who will require fewer than 96 hours of care. Importantly, even if some have ICU-type beds, they do not have capacity for the type of long-term treatment required for COVID-19 patients. Critical access hospitals are not designed to care for critically ill patients; they are designed to stabilize and transfer them.
77. The nearest hospital to Folkston detention center with ICU capabilities is Southeast Georgia Health System in Camden with only 40 beds, including 5 ICU beds, approximately 26 miles away. Patients would likely require initial transport or transfer to Southeast Georgia Health System – Brunswick with 300 beds, including 24 ICU beds, which is about 45 miles away and serves five different counties in Southeast Georgia.
57 Fei Zhou, MD, et al., Clinical course and risk factors for mortality of adults in patients with COVID-19 in Wuhan, china: a retrospective cohort study, The Lancet, vol. 395, issue 10229 (Mar. 11, 2020), available at https://www.thelancet.com/journals/lancet/article/PIIS01406736(20)30566-3/fulltext
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78. With the increasing shortage of PPE, healthcare providers, hospital capacity, and ICU resources like ventilators, it is impossible to know when specific hospitals in Georgia will run out of any of these requisite resources. However, predictions suggest that Georgia currently has an ICU bed shortage of 755 beds and 1,075 ventilators and that all state hospital resources will be used by April 22, 2020.
E. Respondents’ Actions to Address the Pandemic Thus Far Have Been Woefully Inadequate, and Release is the Only Adequate Response to Protect Petitioners
79. Respondents’ failure to recognize the inevitability of an outbreak at Folkston and to take adequate precautions, including releasing people, demonstrates its complete disregard for the lives of detained immigrant, including Petitioners.
80. Instead of releasing Petitioners and other vulnerable people, ICE has issued guidance reflecting certain changes to its operations. These changes fail to adequately protect those in ICE’s custody, especially Petitioners, who are particularly vulnerable to infection and illness. Indeed, given the realities of detention, no conditions of confinement can possibly protect Petitioners from the risk of COVID-19.
81. Moreover, many of the changes ICE claims to have implemented at Folkston are either patently ineffective or contradicted by reports from individuals with first-hand experience in the detention centers.
82. Reports from Petitioners and other detained immigrants belie ICE’s assertions that it has implemented “[c]omprehensive protocols” for the protection of staff and patients, including the appropriate use of [PPE].” Detained immigrants and visiting attorneys have not observed ICE staff routinely using PPE, even during close interactions, or regularly washing their hands since the start of the COVID-19 outbreak. Due to national shortages, some of the top trauma centers and
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hospitals in the state of Georgia have had difficulty obtaining sufficient PPE and other medical supplies, and ICE is presumably dealing with the same issues.
83. Several Petitioners and other detained immigrants at Folkston have indicated that ICE personnel never informed them of COVID-19 or advised them on recommended hygiene or social distancing practices. One detained woman at Folkston reported that when detained people asked for explanations and information around COVID-19, guards and staff responded by threatening to take away their possessions and put them in solitary confinement.
84. Detained immigrants also report a severe lack of access to hygiene supplies. Petitioner Jenner Benavides described only receiving four single-use squares of liquid soap a week, which she needed to use for both hand washing and showers. This would be an unacceptable hygiene practice even before the COVID-19 pandemic; now, it is egregious.58
85. Other measures ICE claims to have taken, including temporarily suspending social visitation in detention and screening new detained immigrants and arriving visitors for certain symptoms of COVID-19, are insufficient to curb the risk of infection within the detention centers. Moreover, ICE’s screening procedures for visitors, which are limited to temperature checks and a questionnaire, will no doubt fail to identify some infected individuals. Many COVID-19 patients may be asymptomatic or have only mild or less common symptoms that do not include fever or respiratory symptoms. As symptoms of COVID-19 can present anywhere from 2 to 14 days after
58 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), Interim Guidance on management of Coronavirus Disease 2019 (COVID-19) in correctional and Detention Facilities (Mar. 23, 2020) https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html (about providing soap supply)
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exposure, people who pass ICE’s screenings can expose detained individuals, as well as detention center staff.
86. The limited options available to ICE to mitigate the risk of COVID-19, like solitary confinement for all medically vulnerable people, are problematic and unsafe. Placing an individual with significant medical needs in solitary confinement not only exacerbates underlying medical conditions, including any mental health issues, but also creates significant, life-threatening risks. This is particularly true given the rapid and severe progression of COVID-19 and the need for responsive medical observation. Folkston does not have the space or staff to safely care for patients for this period of time.
87. Locking any detained person, with or without underlying medical conditions, in a jail cell for extended periods of time, is psychologically damaging and could lead to a spike in severe depression, suicides, and other medical emergencies. In the context of an infectious disease outbreak, where onsite medical staff are operating at or over capacity, these problems will only accelerate. Isolation also increases the amount of physical contact between detention center staff and detained people due to increased handcuffing, escorting individuals to and from the showers, and increased use of force due to the increased psychological stress of isolation.
88. Experts believe release from custody is both the most effective public health measure to curb transmission of COVID-19 and the only meaningful and ethical strategy to protect medically vulnerable people like Petitioners from further harm in detention. ICE’s response to COVID-19 has made abundantly clear that they do not plan to establish special protections for high-risk patients, instead waiting for them to become symptomatic. This puts not only Petitioners but ICE’s own personnel and the larger community at risk of a preventable disaster.
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F. Petitioners Are Particularly Vulnerable to Serious Illness or Death if Infected by COVID-19 and Should Be Released from Detention.
89. Petitioners in this case individuals who are currently detained at Folkston and are particularly vulnerable to serious illness or death if infected by COVID-19.
90. Jenner Benavides. Jenner Benavides is a 27-year-old transgender woman and citizen of Mexico who has been in ICE custody since May 2019. Ms. Benavides is living with HIV and bipolar disorder. She also suffers from depression, anxiety and suicidal ideation exacerbated by her conditions of confinement. At Folkston, she is constantly bullied and harassed by other immigrants detained there. She was recently sexually assaulted more than once by men in her pod unit. When she reported the assault, she was put on suicide watch, and then moved to protective custody, which further worsens her anxiety and depression. She has also experienced delays and inconsistencies in medical services at Folkston, and she is not provided enough soap or toiletries to keep herself clean and protected from illness.
91. Ms. Benavides is critically vulnerable to COVID-19 because of her autoimmune disease and other health problems. Her U.S. citizen friend is waiting to care for her in Nashville once she is released, where her two youngest siblings also eagerly await her return. An immigration attorney submitted a humanitarian parole request on her behalf on April 2, 2020. ICE denied the request on April 5, 2020.
92. David Fernandez. Mr. Fernandez is a 45-year-old citizen of Mexico who has been detained at Folkston since December 2019. Mr. Fernandez has diabetes and has suffered from tuberculosis in the past. A doctor has told him that if he does not manage his blood sugar levels, he is at risk of suffering a heart attack. Prior to his detention by ICE, he had his sugar levels under control, and he felt well. However, maintenance of his diabetes requires fourteen injections of insulin per week, and he has not consistently received all of these necessary injections. Some
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weeks he receives as few as three. His health has deteriorated, and he sometimes cannot stand up from fatigue. Mr. Fernandez is now suffering flu-like symptoms in a facility where he cannot practice social distancing, he is not provided sufficient soap, testing for COVID-19 is unavailable, and staff are not taking precautions to protect him from infection.
93. Mr. Fernandez is critically vulnerable to COVID-19 because of his significant health problems. Upon his release, he plans to self-quarantine in South Carolina, where friends eagerly wait to welcome him home.
94. Gerardo Arriaga. Mr. Arriaga is a 24-year-old citizen of Peru who has Lupus, an autoimmune disease that causes him to be immunocompromised and causes inflammation and damage to his joints, skin, kidneys, blood, heart, and lungs. Because of his condition, he is predisposed to infections, and needs medications and topical creams to manage the symptoms. While he has been at Folkston, he has not received these necessary medications. He has also requested medical attention that has been ignored, and staff are not taking precautions to protect him from COVID-19. He has also not been provided any soap by ICE since he has been detained.
95. Mr. Arriaga is critically vulnerable to COVID-19 because of his significant health problems. Upon his release, he plans to self-quarantine with his wife in Atlanta, Georgia.
96. Public health experts with experience in immigration detention and correctional settings have unequivocally concluded that vulnerable people, like Petitioners, will be safer if they are released from custody.
97. ICE has a longstanding practice of exercising its authority to release from custody particularly vulnerable immigrants with significant medical or humanitarian needs, including on bond, parole, or under other conditions including highly effective alternatives to detention
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(“ATD”) such as GPS monitoring and telephone check-ins. See, e.g., 8 U.S.C. § 1182(d)(5)(a); 8 C.F.R. § 212.5(b)(1); 8 C.F.R. § 235.3(b)(1)(iii); 8 C.F.R. § 235.3(b)(4)(ii); 8 C.F.R. § 241.4.
VI. LEGAL FRAMEWORK A. Petitioners Have a Constitutional Right to Reasonable Safety in Custody
98. All noncitizens who are in ICE, even those with prior criminal convictions, are civil detainees held pursuant to civil immigration laws. Zadvydas, 533 U.S. at 690. Their constitutional protections while in civil custody are thus derived from the due process clause of the Fifth Amendment. Id.
99. The Fifth Amendment Due Process Clause, which mirrors the Fourteenth Amendment, prohibits punishment of people in civil custody. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979); Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004); Hamm v. Dekalb County, 774 F.2d 1567, 1572 (11th Cir. 1985) (citing Ingraham v. Wright, 430 U.S. 651, 671 n. 40 (1977)). (1989).
100. Civilly detained people “are generally ‘entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Marsh v. Fla. Dep’t of Corrections, 330 F. App’x 179 (11th Cir. 2009) (quoting Youngberg v. Romeo, 457 U.S. 307, 322 (1982)); accord Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209 n.5 (4th Cir. 2017).
101. To establish that a particular condition or restriction of detention constitutes impermissible punishment, a petitioner must show either (1) an expressed intent to punish; or (2) lack of a reasonable relationship to a legitimate governmental purpose, from which an intent to punish may be inferred. See Wolfish, 441 U.S. at 538. Absent an explicit intention to punish, a court must apply a two-part test: “First, a court must ask whether any ‘legitimate goal’ was served
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by the prison conditions. Second, it must ask whether the conditions are ‘reasonably related’ to that goal.” Jacoby v. Baldwin County, 835 F.3d 1338, 1345 (11th Cir. 2016). “[I]f conditions are so extreme that less harsh alternatives are easily available, those conditions constitute ‘punishment.’” Telfair v. Gilberg, 868 F. Supp. 1396, 1412 (S.D. Ga. 1994) (citing Wolfish, 441 U.S. at 538-39 n.20).
102. “[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago Cty. Dep’t. of Soc. Servs., 489 U.S. 189, 199-200 (1989). The government must provide detained individuals with basic necessities, such as adequate medical care, food, clothing, and shelter; the failure to provide these necessities violates due process. Hamm, 774 F.2d at 1573; Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., 402 F.3d 1092, 1115 (11th Cir. 2005).
103. At a minimum, the Fifth Amendment Due Process Clause prohibits Respondents’ deliberate indifference to a substantial risk of serious harm that would rise to the level of an Eighth Amendment violation in the post-conviction criminal context. Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, (1983) (“[T]he due process rights of a [detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner.”); see also Hale v. Tallapoosa County, 50 F. 3d 1579, 1582 n.4 (11th Cir. 1995).
104. In order to show that Respondents are acting with deliberate indifference, Petitioners must show exposure to a substantial risk of serious harm of which Respondents are aware and have disregarded. Farmer v. Brennan, 511 U.S. 825, 834, 837-38 (1994); Marbury v. Warden, 936 F.3d 1227, 1233 (11th Cir. 2019); Hale v. Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995).
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105. The government may violate the Eighth Amendment when it “ignore[s] a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33; see also id. at 34 (citing with approval Gates v. Collier, 501 F.2d 1291, 1300 (5th Cir. 1974), which held that prisoners were entitled to relief under the Eighth Amendment when they showed, inter alia, the mingling of “inmates with serious contagious diseases” with other prison inmates).
106. Thus, the harm that Petitioners fear—i.e., that their confinement will result in a COVID-19 infection that will seriously injure and possibly kill them—need not become a reality to establish a violation of their constitutional rights. Courts do not require a plaintiff to “await a tragic event” before seeking relief from a condition of confinement that unconstitutionally endangers them. See Helling, 509 U.S. at 33 (holding prisoner’s Eight Amendment claim could be based upon possible future harm to health, as well as present harm).
107. “Nor does it matter that some inmates may not be affected by the condition, and that the harm is thus, in a sense, only potential harm. The Court has found an Eighth Amendment violation ‘even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed.’” Tittle v. Jefferson Cty. Comm’n, 10 F.3d 1535, 1543 (11th Cir. 1994) (quoting Helling, 509 U.S. at 33).
B. This Court Has Authority to Order Petitioners’ Release to Vindicate Their Fifth Amendment Rights, and Such Relief Is Necessary Here.
108. Courts have broad power to fashion equitable remedies to address constitutional violations in prisons, Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978), and “[w]hen necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011); see also Stone v. City & County
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of San Francisco, 968 F.2d 850, 861 (9th Cir. 1992) (“Federal courts possess whatever powers are necessary to remedy constitutional violations because they are charged with protecting these rights.”)
109. This authority extends to “placing limits on a prison’s population” when necessary to ensure compliance with the Constitution. Brown, 563 U.S. at 511; see also Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (concluding that court did not exceed its authority in directing release of low-bond pretrial detainees as necessary to reach a population cap).
110. The same principle applies here. As the constitutional principles and public health experts make clear, releasing Petitioners is the only viable remedy to ensure their safety from the threat to their health that COVID-19 poses. Petitioners are older adults and/or people with medical conditions who are at particularly grave risk of severe illness or death if they contract COVID-19.
111. In the face of this great threat, social distancing and hygiene measures are Petitioners’ only defense against COVID-19. Those protective measures are impossible in the environment of an immigration detention center, where Petitioners sleep in close quarters; share toilets, sinks, and showers; eat in communal spaces, and are regularly in close contact with the many other detained people and officers around them. These conditions pose a particularly high risk of exposure to COVID-19, and as a result, Petitioners face unreasonable harm from continued detention and should be released immediately.
C. Habeas Is a Broad, Flexible Remedy That Authorizes Courts to Order Release from Unlawful Detention Conditions as Law and Equity Requires.
112. Petitioner also seek relief under the federal habeas statute, 28 U.S.C. § 2241, which is itself infused with long-standing common law equitable principles. See 28 U.S.C.§ 2241(c)(3) (the writ extends to those prisoners “in custody in violation of the Constitution or laws or treaties
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of the United States”). “Habeas is at its core a remedy for unlawful executive detention.” Munaf v. Geren, 553 U.S. 674, 693 (2008).
113. Habeas invests in federal courts broad, equitable authority to “dispose of the matter as law and justice require,” 28 U.S.C. § 2243, as the “very nature of the writ demands that it be administered with the initiative and flexibility.” Harris v. Nelson, 394 U.S. 286, 291 (1969); see Boumediene v. Bush, 553 U.S. 723, 780 (2008) (“Habeas is not ‘a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose.’”) (quoting Jones v. Cunningham, 371 U.S. 236, 243 (1963)).
114. Accordingly, the illegality of custody under the “Constitution or laws . . . of the United States” may stem from the fact of detention and the duration of detention—what is often referred to as the historical core of habeas—and for unlawful placement or conditions of detention. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (habeas challenging “living conditions and disciplinary measures” is “cognizable in federal habeas corpus”); Johnson v. Avery, 393 U.S. 483 (1969) (permitting federal habeas challenge to legality of prison regulation prohibiting provision of legal assistance to other prisoners). See also Aamer v. Obama, 742 F.3d 1023, 1031-38 (D.C. Cir. 2014) (surveying history, purpose and Supreme Court jurisprudence and “the weight of the reasoned precedent in the federal Courts of Appeal” relating to habeas and concluding “habeas corpus tests not only the fact but also the form of detention” (citation omitted)).
115. A court is fully empowered to remediate the particular illegality here—an outbreak of lethal and unavoidable virus that threatens Petitioners and violates their constitutional rights to be free from arbitrary and punitive detention—by ordering their release. Habeas corpus is, “above all, an adaptable remedy,” Boumediene, 553 U.S. at 779, and federal courts retain “broad discretion in conditioning a judgment granting habeas relief . . . ‘as law and justice require.’” Hilton v.
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Braunskill, 481 U.S. 770, 775 (1987) (quoting 28 U.S.C. § 2243). That authority includes an order of release, Boumediene, 553 U.S. at 779, so as “to insure that miscarriages of justice within [the writ’s] reach are surfaced and corrected.” Harris, 395 U.S. at 291.
VII. CLAIM FOR RELIEF A. Violation of Fifth Amendment Right to Substantive Due Process (Unlawful Punishment; Freedom from Cruel Treatment and Conditions of Confinement)
116. Petitioners reallege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
117. The Fifth Amendment to the U.S. Constitution guarantees individuals in immigration detention the right to be free from punishment. The government violates this guarantee when conditions of confinement lack a reasonable relationship to any legitimate governmental purpose, i.e. when a custodian’s actions are excessive in relation to their purpose.
118. Respondents’ continued detention of Petitioners during the COVID-19 pandemic is excessive in relation to any legitimate governmental purpose. Less harsh measures are available to satisfy any government interest in continuing to detain Plaintiffs, including release with conditions. Under these circumstances, Respondents’ detention of Petitioners amount to impermissible punishment.
119. Conditions of confinement for individuals in immigration detention also violate the Fifth Amendment when the government fails, with deliberate indifference, to safeguard the health and safety of those in custody. The government acts with deliberate indifference when it knowingly exposes an individual in its custody to a substantial risk of serious harm.
120. Respondents have subjected Petitioners to conditions of confinement that create a substantial risk of contracting a serious case of COVID-19, for which there is no known vaccine,
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treatment, or cure. Respondents know or should be aware of the fact that Petitioners’ underlying conditions render them especially vulnerable to severe illness or even death if they contract COVID-19. Respondents are therefore knowingly subjecting Petitioners to an unreasonable risk of serious harm, in violation of constitutional due process.
121. Respondents’ continued detention of Petitioners fails to adequately protect Petitioners from the risks of contracting COVID-19.
122. Petitioners’ ongoing confinement lacks a reasonable relationship to any legitimate governmental purpose and is excessive in relation to their purpose.
123. Respondents have exposed Petitioners to a substantial risk of serious harm. 124. Respondents have known of or disregarded the substantial risk of harm to Petitioners’ health and safety. 125. Respondents have acted with deliberate indifference to Petitioners’ health and safety. 126. Respondents’ continued detention of Petitioners violates the Due Process Clause of the Fifth Amendment.
VIII. PRAYER FOR RELIEF WHEREFORE Petitioners request that the Court grant the following relief: a. Issue a Writ of Habeas Corpus on the ground that Respondents’ continued detention of Petitioners violates the Due Process Clause and order Petitioners’ immediate release, with appropriate precautionary public health measures; b. In the alternative, issue injunctive relief ordering Respondents to immediately release Petitioners, with appropriate precautionary public health measures, on the grounds that continued detention violates Petitioners’ constitutional due process rights;
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c. Issue a declaration that Respondents’ continued detention of individuals at increased risk for severe illness, including all people fifty-five and older and persons of any age with underlying medical conditions that may increase the risk of serious COVID-19, violates the Due Process Clause;
d. Award Petitioners their costs and reasonable attorneys’ fees in this action under the Equal Access to Justice Act (“EAJA”), as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, and on any other basis justified under law; and
e. Grant any other and further relief that this Court may deem fit and proper.

Dated: April 8, 2020

Respectfully submitted,

SOUTHERN POVERTY LAW CENTER

KILPATRICK TOWNSEND & STOCKTON LLP

Gracie Willis* (GA Bar #851021) Rebecca Cassler* (GA Bar #487886) Lorilei Williams* (NY Bar #5302617) 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 Fax: (404) 221-5857 gracie.willis@splcenter.org rebecca.cassler@splcenter.org
Paul R. Chavez* (FL Bar #1021395) Victoria Mesa-Estrada* (FL Bar #076569) 2 S. Biscayne Blvd., Ste. 3200 Miami, FL 33101 Tel: (786) 347-2056 paul.chavez@splcenter.org victoria.mesa@splcenter.org
Melissa Crow* (DC Bar #453487) 1101 17th Street, NW, Ste. 705 Washington, DC 20036 Tel: (202) 355-4471 Fax: (404) 221-5857 melissa.crow@splcenter.org

By: /s/ Mark H. Reeves Mark H. Reeves (GA Bar #141847) Enterprise Mill 1450 Greene Street, Ste. 230 Augusta, GA 30901 Tel: (706) 823-4206 Fax: (706) 828-4488 mreeves@kilpatricktownsend.com
Tamara Serwer Caldas* (GA Bar #617053) Kathryn E. Isted* (GA Bar #908030) Amanda Brouillette* (GA Bar #880528) 1100 Peachtree St., NE, Ste. 2800 Atlanta, GA 30309 Tel: (404) 815-6006 Fax: (404) 541-4754 tcaldas@kilpatricktownsend.com kisted@kilpatricktownsend.com abrouillette@kilpatricktownsend.com
ASIAN AMERICANS ADVANCING JUSTICEATLANTA

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*pro hac vice motions forthcoming

Hillary Li* (GA Bar #898375) Phi Nguyen* (GA Bar #578019) 5680 Oakbrook Pkwy, Ste. 148 Norcross, GA 30093 Tel: (404) 585-8466 Fax: (404) 890-5690 hli@advancingjustice-atlanta.org pnguyen@advancingjustice-atlanta.org

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EXHIBIT 1

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DECLARATION OF ROBERT B. GREIFINGER, MD
I, Robert B. Greifinger, M.D., hereby declare under the penalty of perjury pursuant to 28 U.S.C. § 1746:
1. I am a physician who has worked in health care for prisoners for more than 30 years. I have managed the medical care for inmates in the custody of New York City (Rikers Island) and the New York State prison system. I have authored more than 80 scholarly publications, many of which are about public health and communicable disease. I am the editor of Public Health Behind Bars: from Prisons to Communities, a book published by Springer (a second edition is due to be published in early 2021); and co-author of a scholarly paper on outbreak control in correctional facilities.1
2. I have been an independent consultant on prison and jail health care since 1995. My clients have included the U.S. Department of Justice, Division of Civil Rights (for 23 years) and the U.S. Department of Homeland Security, Section for Civil Rights and Civil Liberties (for six years). I am familiar with immigration detention centers, having toured and evaluated the medical care in approximately 20 immigration detention centers, out of the several hundred correctional facilities I have visited during my career. I currently monitor the medical care in three large county jails for Federal Courts. My resume is attached as Exhibit A.
COVID-19 Background
3. COVID-19 is a coronavirus disease that has reached pandemic status. As of today, according to the World Health Organization, more than 850,000 people have been diagnosed with COVID-19 around the world and 42,000 have died.2 In the United States, about 214,000 people have been diagnosed and 4,800 people have died thus far.3 These numbers are likely an underestimate, due to the lack of availability of testing, especially in the United States.
1 Parvez FM, Lobato MN, Greifinger RB. Tuberculosis Control: Lessons for Outbreak Preparedness in Correctional Facilities. Journal of Correctional Health Care OnlineFirst, published on May 12, 2010 as doi:10.1177/1078345810367593. 2 See https://experience.arcgis.com/experience/685d0ace521648f8a5beeeee1b9125cd, accessed April 2, 2020. 3 See https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html?searchResultPosition=1, accessed April 2, 2020.
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4. There is emerging evidence, from researchers in Singapore, that the virus that causes COVID-19 is transmissible from an asymptomatic person for one to two days before the person develops symptoms.4
5. COVID-19 is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death in older patients and patients with chronic underlying conditions. There is no vaccine to prevent COVID-19. There is no known cure or anti-viral treatment for COVID-19 at this time. In the absence of a vaccine, the only way to mitigate the spread of COVID-19 is scrupulous hand hygiene and social distancing.
6. People in the high-risk category for COVID-19, i.e., the elderly or those with underlying disease, are likely to suffer serious illness and death when they are infected. According to preliminary data from China, 20% of people in high risk categories who contract COVID-19 have died.
7. Those who do not die have prolonged serious illness, for the most part requiring expensive hospital care, including ventilators that are in very short supply.
8. The Centers for Disease Control and Prevention (CDC) has identified underlying medical conditions that may increase the risk of serious COVID19 for individuals of any age: blood disorders, chronic kidney or liver disease, compromised immune system, endocrine disorders, including diabetes, metabolic disorders, heart and lung disease, neurological and neurologic and neurodevelopmental conditions, and current or recent pregnancy.
9. Social distancing and hand hygiene are the only known ways to prevent the rapid spread of COVID-19. For that reason, public health officials have recommended extraordinary measures to combat the spread of COVID-19. Schools, courts, collegiate and professional sports, theater and other congregate settings have been closed as part of risk mitigation strategy.
Risk of Outbreak of COVID-19 in Detention Centers
10.The conditions of immigration detention facilities pose a heightened public health risk to the spread of COVID-19, even greater than other non-carceral institutions. ICE will not be able to stop the spread of COVID-19 within its
4 https://www.cdc.gov/mmwr/volumes/69/wr/mm6914e1.htm?s_cid=mm6914e1_w, accessed April 2, 2020.
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facilities. ICE has already reported the presence of detainees with confirmed COVID-19 in multiple detention facilities.5
11.One of the few means of preventing a COVID-19 infection is through social distancing—that is maintaining a distance of at least six feet between individuals so as not to unintentionally spread the virus to others. This is nearly impossible in a detention center, where crowding of individuals is commonplace. Immigration detention facilities are enclosed environments, much like the cruise ships that have been sites of large concentrated outbreaks of COVID-19. Immigration detention facilities have even greater risk of virus transmission because of crowding, the proportion of vulnerable people detained, the ingress and egress of staff, and often scant medical care resources.
Take the sally-port or control port, for example. This is a series of two locked gates that bring all staff and detained persons past a guard in a window control room. These areas often become severely crowded, especially during shift changes for staff or leading up to count for the detained people. In this context, close contact is unavoidable; it creates a breeding ground for COVID-19 infection.
These sally-ports are also a focal point for staff to transfer keys, radios, and other equipment through a hand to hand transaction, intensifying the risk of transmitting infection from a staff member to others.
12.In a detention center, people live in close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread of COVID-19. Toilets, sinks, and showers are shared, without disinfection between use. Food preparation and food service is communal, with little opportunity for surface disinfection. Staff arrive and leave on a shift basis; there is little to no ability to adequately screen staff for new, asymptomatic infection.
13.Many immigration detention facilities lack adequate medical care infrastructure to address the spread of infectious disease and treatment of high-risk people in detention. As examples, immigration detention facilities often use practical nurses who practice beyond the scope of their licenses; have part-time physicians who have limited availability to be on-site; and facilities with no formal linkages with local health departments or hospitals.
5 https://www.ice.gov/coronavirus, accessed April 2, 2020.
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14.It is difficult to capture the full extent of the problem because testing materials have been in very short supply and the fact that people who are infected with COVID-19, as far as we know, can be asymptomatic for up to two days before showing the symptoms associated with the disease.
15.ICE is not set up to be able to contain the disease once it is inside of its facilities or the facilities of its contractors. This is because of the realities of an infectious disease within the tight confines of a detention center and the history of inadequate health care that ICE has provided to detainees, directly or through its contractors. The CDC has warned detention centers to plan for staffing shortages due to the impact of COVID-19 on detention center staff.6 The COVID-19 crisis only exacerbates ICE’s longstanding struggle to maintain adequately staffed facilities.
16.Moreover, the Georgia detention centers have well-documented problems in the provision of adequate medical care.7 Extended wait times for detained individuals who are ill to see a medical professional, compounds the risk of transmission. Densely congregated living areas and food preparation practices fail to comply with the standards that would prevent the spread of COVID-19.
17.The only viable public health strategy available is risk mitigation. Even with the best-laid plans to address the spread of COVID-19 in detention facilities, the release of vulnerable individuals is a key part of a risk mitigation strategy.
ICE’S Ameliorative Measures Will Not Be Effective
18.There are no changes in procedure that can alleviate these concerns. Approaches like solitary confinement or keeping individuals locked into their cells more hours of the day will make the problem worse. These approaches are psychologically damaging to detained people and may lead to a spike in severe depression, attempted and completed suicides, and medical emergencies. In the context of an outbreak in the facility, when
6 3 https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html#social_distancing, accessed April 2, 2020 7 https://www.oig.dhs.gov/sites/default/files/assets/FOIA/OIG_FOIA_Stewart-Detention-Center-Work-Papers.pdf; https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-32-Dec17.pdf. Accessed April 2, 2020.
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onsite medical staff are operating at or over capacity, the problems can accelerate.
19.In addition to social distancing, another key measure to prevent the spread of COVID-19 is frequent and thorough hand washing. Handwashing stations are often few and far between in detention centers; soap is often in short supply. Many facilities do not have handwashing stations that allow water to be turned on and remain on. Instead, the faucets automatically shut off after a period of time, making it nearly impossible to wash one’s hands for the recommended twenty seconds.
20.In addition to these challenges, ICE has failed to adequately respond to the COVID-19 pandemic. Both the March 6, 2020 interim guidance sheet8 produced by ICE Health Services Corps, the body that oversees ICE detention facilities’ medical care, ICE’s guidance on its website,9 and the ICE internal guidance dated March 27, 2020 are wholly insufficient to adequately face the crisis at hand. They fail in these ways:
a. The protocol focuses on travel contacts, instead of community spread. Questions focus on detainee’s recent travel history. This misses the mark. At this point in the course of the pandemic, nearly everyone who is not practicing social distancing is in contact with someone who has the virus. The correct focus is monitoring active symptoms, including fever and interaction with sick individuals upon entry into the ICE facility, including sick detained people and staff. Staff is an especially important vector in this outbreak. Since they go back and forth between the detention centers and the communities where they live, the detention centers will be hit by COVID-19 at the same time as the surrounding communities, staff and their families included.
b. The ICE protocol does not follow the measures in the CDC guidelines for long term care facilities. Specifically, it does not ensure access to hand sanitizer or provide masks for individuals with a cough. Although the March 27, 2020 guidance recommends access to hand sanitizer inside the detention centers, it does so only for ICE-operated facilities, not contract detention centers like those in Georgia. It also fails to specify the alcohol content of the hand sanitizer, leading to the risk of low-content hand sanitizers that are not effective.
8 https://www.aila.org/infonet/ice-interim-reference-sheet-coronavirus, accessed April 2, 2020. 9 https://www.ice.gov/covid19, accessed April 2, 2020.
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c. The ICE protocol does not provide guidance on how to deal with surge capacity, which will almost certainly be necessary as the number of cases in the detention facility increases and the number of healthy staff who can treat detained people decreases. The March 27, 2020, guidance merely recommends that detention centers continue to hire staff, which is not a meaningful suggestion where individuals are instructed to shelter in place and socially distance.
d. There is no guidance on when to test detained people. ICE Health Service Corps leadership should provide daily updates to medical staff disseminating criteria for testing in this rapidly changing environment. Epidemiologists working in conjunction with local and federal COVID-19 responders must be part of the decision-making process guiding this daily protocol. The March 27, 2020, guidance to simply follow CDC guidelines with regard to testing is insufficient and will lead to inconsistent testing.
e. The protocol does require close contacts of people with suspected COVID-19 to be monitored for 14 days for symptoms. However, many people who arrive at the detention facility, including both staff and detained persons, will have had contact with someone with COVID-19. The detention facility’s medical unit simply cannot handle the volume of patients that would need this level of monitoring. There needs to be significantly more facilities and staffing to meet these needs, but, to my knowledge, ICE has not made the appropriate changes to accommodate such a level.
f. There is no guidance in the protocol to identify the highest risk patients or steps to protect them from contracting COVID-19. The plan needs to include an improved intake process, cohorted housing areas for high-risk patients, increased infection control measures, and increased medical surveillance, including daily checks for signs and symptoms. And these measures will mean nothing if social distancing is not followed. Social distancing of six feet, as recommended by the CDC, will be impossible in all ICE facilities, especially in light of practices such as double celling.
g. There are no clear criteria for hospital transfer. As clinical staff have no experience with this disease, ICE should develop rational clinical criteria for transfer to an acute care hospital.
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21.The ICE response envisions using isolation rooms to monitor individuals with COVID-19 symptoms. However, most facilities only have one to four of these rooms. There will be many more than one to four people with COVID-19 in the detention center. Instead, ICE must create entire housing units reserved for people with COVID-19 symptoms, so that symptomatic patients can live separately from those who are asymptomatic or at risk.
22.Isolation is not a proper solution for people without symptoms or confirmed disease. Detainees who are isolated are monitored less frequently. If they develop COVID-19 symptoms, or their symptoms escalate, they may not be able to get the medical attention they desperately need in a timely fashion. It also makes it more likely that these detained people will attempt suicide or self-harm, giving rise to more medical problems in the midst of a pandemic. Isolation also increases the amount of physical contact between staff and detained people—in the form of increased handcuffing, escorting individuals to and from the showers, and increased use of force due to the increased psychological stress of isolation. My expert opinion is that the use of isolation or lockdown is not a medically appropriate method for abating the substantial risks of COVID-19.
23.Transferring individuals between facilities, a common ICE practice, is medically inappropriate during the outbreak. ICE does not have the staffing needed to monitor the transferred patients for the appropriate 14-day period to check for symptoms. However, ICE has not provided guidance to halt or limit transfers.
Release is the Most Effective Public Health Measure to Curb Morbidity and Mortality
24.In my opinion, the public health recommendation is to release vulnerable people from detention, given the heightened risks to their health and safety, especially given the lack of a viable vaccine for prevention or effective treatment at this stage. To the extent that vulnerable detainees have had exposure to known cases with laboratory-confirmed infection with the virus that causes COVID-19, they should be tested immediately in concert with the local health department. Those who test negative should be released.
25.Releasing the most vulnerable patients reduces the burden on local health care resources, as it reduces the risk of transmission of the disease to a large number of people living in close proximity for an extended period of time.
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26.This release cohort can be separated into two groups. Group 1 could be released to home quarantine for 14 days, assuming they can be picked up from detention centers by their families or sponsors. Group 2 comprises those who cannot be easily transported to their homes by their families or sponsors. Group 2 could be released to a housing venue for 14 days, determined in concert with the Georgia Department of Health.
27.ICE must release all people with risk factors who pose no danger to society. This will prevent serious illness including death. ICE’s response has made abundantly clear that they do not plan to establish special protections for high-risk patients, instead waiting for them to become infected, symptomatic, and in danger. The lack of special protections will lead to unnecessary illness and death for the people most vulnerable to this disease. ICE is walking willingly into a preventable disaster by keeping high-risk and vulnerable patients in detention facilities during the rapid spread of COVID19.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this _2nd____ day in April 2020 in New York City, New York.
Robert B. Greifinger, M.D.
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EXHIBIT A

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ROBERT B. GREIFINGER, M.D.

380 Riverside Drive, Apt 4F New York, New York 10025

(646) 559-5279 bob@rgreifinger.com

Physician consultant with extensive experience in development and management of complex community and institutional health care programs. Demonstrated strength in leadership, program development, negotiation, communication, operations and the bridging of clinical and public policy interests. Teacher of health and criminal justice.

SUMMARY OF EXPERIENCE
MEDICAL MANAGEMENT AND QUALITY IMPROVEMENT SERVICES 1995-Present
Consultant on the design, management, operations, quality improvement, and utilization management for correctional health care systems.
•   Recent clients include (among others) the U.S. Department of Justice Civil Rights Division, monitoring multiple correctional systems and the U.S. Department of Homeland Security Office of Civil Rights and Civil Liberties. Federal court monitor for the Metropolitan Detention Center, Albuquerque, New Mexico, Orleans Parish Sheriff’s Office, New Orleans, Louisiana, and MiamiDade Corrections and Rehabilitation Department.
•   National Commission on Correctional Health Care. Principal Investigator for an NIJ funded project to make recommendations to Congress on identifying public health opportunities in soon-to-bereleased inmates.
•   Associate Editor, Puisis M (ed), Clinical Practice in Correctional Medicine, Second Edition, St. Louis. Mosby 2006.
•   Editor, Greifinger, RB (ed), Public Health Behind Bars: From Prisons to Communities, New York. Springer 2007.
•   John Jay College of Criminal Justice. Professor (adjunct) of Health and Criminal Justice and Distinguished Research Fellow 2005 – 2016.
•   Co-Editor, International Journal of Prison Health 2010 – 2016.

NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES

1989 - 1995

Operating budget of $1.4 Billion. Responsible for inmate safety, program, and security. Sixty-nine facilities housing over 68,000 inmates with 30,000 employees.

Deputy Commissioner/Chief Medical Officer, 1989 - 1995

•   Operating budget of $140 million; health services staff of 1,100. Accountable for inmate health services and public health. Directed major initiatives in policy and program development, quality and utilization management.

•   Developed and implemented comprehensive program for HIV prevention, surveillance, education, and treatment in nation's largest AIDS medical practice.

•   Managed the rapid implementation of an infection control program responding to a major outbreak of multidrug-resistant tuberculosis. Helped bring the nation's tuberculosis epidemic to public attention.

•   Developed $360 million five-year capital plan for inmate health services. Opened the first of five regional medical units for multispecialty ambulatory and long-term care.

•   Implemented a centralized and regional pharmacy system, improving quality, service and cost management.

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ROBERT B. GREIFINGER, M.D.

MONTEFIORE MEDICAL CENTER, Bronx, NY

1985 - 1989

A major academic medical center with 8,000 employees and annual revenue of $500 million.

Vice President, Health Care Systems, 1986 - 1989

Director, Alternative Delivery Systems, 1985 - 1986

Operating budget of $60 million with 1,100 employees. Managed a multi-specialty group, a home health agency, and prison health programs.

•   Negotiated contracts, including bundled service, risk capitation, fee-for-service arrangements, and major service contracts. Developed a high technology home care joint venture.

•   Taught epidemiology and health care organization at Albert Einstein College of Medicine. Lectured nationally on health care delivery and managed care.

•   Conceived and collaborated in development of a consortium of six academic medical centers, leading to a metropolitan area-wide, joint venture HMO. Organized a network of physicians to contract with HMO's preparing for cost-containment.

WESTCHESTER COMMUNITY HEALTH PLAN, White Plains, NY

1980 - 1985

Independent, not-for-profit, staff-model HMO, acquired by Kaiser-Permanente in 1985. Operating revenue $17 million with 200 employees and 27,000 members.

Vice President and Medical Director

Chief medical officer and COO. Managed the delivery of comprehensive medical services. Accountable to the Board of Directors for quality assurance and utilization management. Practiced pediatrics.

•   Accomplished turnaround with automated utilization management, improved service, sound personnel management principles, and quality management programs.

•   Implemented performance based compensation program.

COMMUNITY HEALTH PLAN OF SUFFOLK, INC.

1977 - 1980

Community based, not-for-profit, staff model HMO, with enrollment of 18,000.

Medical Director

•   Developed and operated clinical services. Accountable for quality of care. Practiced clinical pediatrics, and taught community health and medical ethics at SUNY Stony Brook School of Medicine.

MONTEFIORE MEDICAL CENTER, Bronx, NY

1976 - 1977

Residency Program in Social Medicine, Deputy Director, 1976-1977

Unique clinical training program focused on community health and change agentry. Developed curriculum and supervised 40 residents in internal medicine, pediatrics and family medicine.

UNITED STATES PUBLIC HEALTH SERVICE

1972 - 1974

Commissioned officer in the National Health Service Corps. Functioned as medical director and family physician in a federally funded neighborhood health center in Rock Island, Illinois. Honorable Discharge.

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ROBERT B. GREIFINGER, M.D.

FACULTY APPOINTMENTS
1976 - 2002 Assistant Professor of Epidemiology and Social Medicine, Albert Einstein College of Medicine
2005 - 2016 Professor (adjunct) of Health and Criminal Justice and Distinguished Research Fellow, John Jay College of Criminal Justice

NATIONAL COMMITTEE FOR QUALITY ASSURANCE

Worked with NCQA since its inception in 1980. Began training surveyors in 1989, and continued as faculty for NCQA sponsored educational sessions. Served for six years as a charter member of the Review Oversight (accreditation) Committee. Served on the Reconsideration (appeals) Committee for six years. Surveyed dozens of managed care organizations, and reviewed several hundred quality management programs.

OTHER PROFESSIONAL ACTIVITIES

2012 – present Member, Board of Directors, Prison Legal Services, New York

2012 – present Member, Board of Directors, National Health Law Program

2011 – 2015 Member, Board of Directors, Academic Consortium of Criminal Justice Health

2010 - 2016 Co-editor, International Journal of Prisoner Health

2009

Recipient, B. Jaye Anno Award for Lifetime Achievement in Communication

2007-2015 Member, National Advisory Group on Academic Correctional Health Care

2007

Recipient, Armond Start Award, Society of Correctional Physicians

2005 - 2011 Member, Advisory Board to the Prisoner Reentry Institute, John Jay College

2002 - present Member, Editorial Board, Journal of Correctional Health Care

2002 - present Peer reviewer for multiple journals, including Journal of Correctional Health Care, International Journal of Prison Health, Journal of Urban Health, Journal of Public Health Policy, Annals of Internal Medicine, American Journal of Public Health, Health Affairs, and American Journal of Drug and Alcohol Abuse.

2001 - 2003 Member, Advisory Board to CDC on Prevention of Viral Hepatitis in Correctional Facilities

1999 - 2003 Member, Advisory Board to CDC on Prevention and Control of Tuberculosis in Jails

1997 - 2003 1997 - 2001

Member, Reconsideration Committee, NCQA
Moderator, Optimal Management of HIV in Correctional Systems, World Health Communications

1997 - 2000 Member, Reproductive Health Guidelines Task Force, CDC

1993 - 1995 Co-chair, AIDS Clinical Trial Community Advisory Board, Albany Medical Center 1992 - Present Society of Correctional Physicians

1991 - 1997 Member, Review Oversight (accreditation) Committee, NCQA

Case 4:20-cv-00069-RSB-CLR Document 4-3 Filed 04/08/20 Page 14 of 19
ROBERT B. GREIFINGER, M.D.
1983 - 1985 Executive Committee, Medical Directors' Division, Group Health Association of America (Secretary, 1984-1985) EDUCATION
University of Pennsylvania, College of Arts and Sciences, Philadelphia; B.A., 1967 (Amer. Civilization) University of Maryland, School of Medicine, Baltimore; M.D., 1971 Residency Program in Social Medicine (Pediatrics), Montefiore Medical Center, Bronx, NY; 1971-1972,
1974-1976, Chief Resident 1975-1976
CERTIFICATION Diplomate, National Board of Medical Examiners, 1971 Diplomate, American Board of Pediatrics, 1976 Fellow, American Academy of Pediatrics, 1977 Fellow, American College of Physician Executives, 1983 Fellow, American College of Correctional Physicians (formerly Society of Correctional Physicians), 2000 License: New York, Pennsylvania (inactive)

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ROBERT B. GREIFINGER, M.D.

PUBLICATIONS

Updated February 2018

Greifinger RB, A Summer Program in Life Sciences. Journal of Medical Education 1970; 45: 620-622.
Greifinger RB, Sidel VW, American Medicine - Charity Begins at Home. Environment 1977; 18(4): 718.
Greifinger RB, An Encounter With the System. The New Physician 1977; 26(9): 36-37.
Greifinger RB, Sidel VW, Career Opportunities in Medicine. In Tice's(eds) Practice of Medicine. Hagerstown: Harper & Row 1977; 1(12): 1-49.
Greifinger RB, Grossman RL, Toward a Language of Health. Health Values 1977; 1(5): 207-209.
Grossman RL, Greifinger RB, Encouraging Continued Growth in the Elderly. In Carnevali DL & Patrick M (eds), Nursing Management for the Elderly. Philadelphia: Lippincott 1979: 543-552.
Greifinger RB, Jonas S, Ambulatory Care. In Jonas S (ed), Health Care Delivery in the United States (second edition). New York: Springer 1980: 126-168.
Greifinger RB, Toward a New Direction in Health Screening. In Health Promotion: Who Needs It? Washington: Medical Directors Division, Group Health Association of America 1981: 61-67.
Greifinger RB, Sidel VW, American Medicine. In Lee, Brown & Red (eds), The Nation's Health. San Francisco: Boyd & Fraser 1981: 122-134.
Greifinger RB, Bluestone MS, Building Physician Alliances for Cost-Containment. Health Care Management Review 1986: 63-72.
Greifinger RB, An Ethical Model for Improving the Patient-Physician Relationship. Chicago: Inquiry 1988: 25(4): 467-468.
Glaser J, DeCorato DR, Greifinger RB, Measles Antibody Status of HIV-Infected Prison Inmates. Journal of Acquired Immunodeficiency Syndrome 1991; 4(5): 540-541.
Ryan C, Levy ME, Greifinger RB, et al, HIV Prevention in the U.S. Correctional System, 1991. MMWR 1992; 41(22): 389-397.
Greifinger RB, Keefus C, Grabau J, et al, Transmission of Multidrug- resistant Tuberculosis Among Immunocompromised Persons in a Correctional System. MMWR 1992; 41(26): 509-511.
Greifinger RB, Tuberculosis Behind Bars, in Bruce C Vladeck ed, The Tuberculosis Revival: Individual Rights and Societal Obligations In a Time of AIDS. New York: United Hospital Fund 1992: 5965.
Bastadjian S, Greifinger RB, Glaser JB. Clinical characteristics of male homosexual/bisexual HIVinfected inmates. J AIDS 1992;5:744-5.
Glaser JB, Greifinger R. Measles antibodies in HIV-infected adults. J Infect Dis. 1992 Mar;165(3):589.
Glaser J, Greifinger RB, Correctional Health Care: A Public Health Opportunity. Annals of Internal Medicine 1993; 118(2): 139-145.
Greifinger RB, Glaser JG and Heywood NJ, Tuberculosis In Prison: Balancing Justice and Public Health, Journal of Law, Medicine and Ethics 1993; 21 (3-4):332-341.

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ROBERT B. GREIFINGER, M.D.
Valway SE, Greifinger RB, Papania M et al, Multidrug Resistant Tuberculosis in the New York State Prison System, 1990-1991, Journal of Infectious Disease 1994; 170(1):151-156.
Wolfe P, Greifinger RB, Prisoners in Service of Public Health: Focus New York State. New York Health Sciences Journal 1994 1(1):35-43.
Valway SE, Richards S, Kovacovich J, Greifinger RB et al, Outbreak of Multidrug-Resistant Tuberculosis in a New York State Prison, 1991. American Journal of Epidemiology 1994 July 15; 140(2):113-22.
Smith HE, Smith LD, Menon A and Greifinger RB, Management of HIV/AIDS in Forensic Settings, in Cournos F(ed), AIDS and People with Severe Mental Illness: A Handbook for Mental Health Professionals. New Haven: Yale Press 1996.
Greifinger RB, La Plus Ca Change . . . ., Public Health Reports 1996 July/August; 111(4):328-9.
Greifinger RB, TB and HIV, Health and Hygiene 1997;18,20-22.
Greifinger RB, Horn M, “Quality Improvement Through Care Management,” chapter in Puisis M (ed), Clinical Practice in Correctional Medicine, St. Louis: Mosby 1998.
Greifinger RB, Glaser JM, “Desmoteric Medicine and the Public’s Health,” chapter in Puisis M (ed), Clinical Practice in Correctional Medicine, St. Louis: Mosby 1998.
Greifinger RB, Commentary: Is It Politic to Limit Our Compassion? Journal of Law, Medicine & Ethics, 27(1999):213-16.
Greifinger RB, Glaser JG and Heywood NJ, “Tuberculosis In Prison: Balancing Justice and Public Health,” chapter in Stern V (ed), Sentenced to die? The problem of TB in prisons in Eastern Europe and Central Asia, London: International Centre for Prison Studies, 1999.
Greifinger RB (Principal Investigator). National Commission on Correctional Healthcare. The Health Status of Soon-to-be-Released Inmates, a Report to Congress. August 2002. http://www.ncchc.org/pubs_stbr.html.
Kraut JR, Haddix AC, Carande-Kulis V and Greifinger RB, Cost-effectiveness of Routine Screening for Sexually Transmitted Diseases among inmates in United States Prisons and Jails. National Commission on Correctional Healthcare. The Health Status of Soon-to-be-Released Inmates, a Report to Congress. August 2002. http://www.ncchc.org/stbr/Volume2/Report5_Kraut.pdf.
Hornung CA, Greifinger RB, and Gadre S, A Projection Model of the Prevalence of Selected Chronic Diseases in the Inmate Population. National Commission on Correctional Healthcare. The Health Status of Soon-to-be-Released Inmates, a Report to Congress. August 2002. http://www.ncchc.org/stbr/Volume2/Report3_Hornung.pdf.
Hornung CA, Anno BJ, Greifinger RB, and Gadre S, Health Care for Soon-to-be-Released Inmates: A Survey of State Prison Systems,” National Commission on Correctional Healthcare. The Health Status of Soon-to-be-Released Inmates, a Report to Congress. August 2002. http://www.ncchc.org/stbr/Volume2/Report1_Hornung.pdf.
Patterson RF & Greifinger RB, Insiders as Outsiders: Race, Gender and Cultural Considerations Affecting Health Outcome After Release to the Community, Journal of Correctional Health Care 10:3 2003; 399-436.
Howell E & Greifinger RB, What is Known about the Cost-Effectiveness of Health Services for Returning Inmates? Journal of Correctional Health Care 10:3 2003; 437-455.
Kraut JR, Haddix AC, Carande-Kulis V and Greifinger RB, Cost-effectiveness of Routine Screening for Sexually Transmitted Diseases among inmates in United States Prisons and Jails, J Urban Health:

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ROBERT B. GREIFINGER, M.D.
Bulletin of the New York Academy of Medicine 2004: 81(3):453-471. (Finalist, Charles C. Shepard Science Award)
Greifinger RB. Health Status in U.S. and Russian Prisons: More in Common, Less in Contrast. Journal of Public Health Policy 2005 26:60-68. http://www.palgrave-journals.com/cgitaf/DynaPage.taf?file=/jphp/journal/v26/n1/full/3200003a.html&filetype=pdf
Greifinger RB. Health Care Quality Through Care Management, M. Puisis (ed). Clinical Practice in Correctional Medicine, Second Edition. St. Louis. Mosby 2006: pp. 510-519.
Greifinger RB. Pocket Guide Series on tuberculosis, HIV, MRSA, sexually transmitted disease, viral hepatitis and management of outbreaks. See http://www.achsa.org/displaycommon.cfm?an=1&subarticlenbr=23
Greifinger RB. Inmates are Public Health Sentinels. Washington University Journal of Law and Policy. Volume 22 (2006) 253-64.
Greifinger RB. Disabled Prisoners and “Reasonable Accommodation.” Journal of Criminal Justice Ethics. Winter Spring 2006: 2, 53-55.
Mellow J, Greifinger RB. Successful Reentry: The Perspective of Private Health Care Providers. Journal of Urban Health. November 2006 doi:10.1007/s11524-006-9131-9.
Mellow J, Greifinger RB. The Evolving Standard of Decency: Post-Release Planning? Journal of Correctional Health Care January 2008 14(1):21-30.
Williams B, Greifinger RB. Elder Care in Jails and Prisons: Are We Prepared? Journal of Correctional Health Care January 2008 14(1):4-5.
Greifinger RB (editor). Public Health Behind Bars: From Prisons to Communities. Springer. New York 2007.
Greifinger RB. Thirty Years Since Estelle v. Gamble: Looking Forward Not Wayward. Greifinger, RB (ed). Public Health Behind Bars: From Prisons to Communities. Springer. New York 2007.
Patterson RF, Greifinger RB. Treatment of Mental Illness in Correctional Settings. Greifinger, RB (ed). Public Health Behind Bars: From Prisons to Communities. Springer. New York 2007.
MacDonald M, Greifinger RB. and Kane D. Use of electro-muscular disruption devices behind bars: Progress or regress. Editorial',International Journal of Prisoner Health,4:4,169 — 171. 2009.
Hoge SK, Greifinger RB, Lundquist T, Mellow J. Mental Health Performance Measurement in Corrections. International Journal of Offender Therapy and Criminology, 53:6 634-47, 2009. Abstract accessed January 12, 2010 at http://www.ncjrs.gov/App/Publications/abstract.aspx?ID=251100.
Williams BA, Lindquist K . . . Greifinger RB et al. Caregiving Behind Bars: Correctional Officer Reports of Disability in Geriatric Prisoners. J Am Geriatr Soc 57:1286–1292, 2009.
Baillargeon J, Williams B . . . Greifinger RB, et al. Parole Revocation among Prison Inmates with Psychiatric and Substance Use Disorders. Psychiatric Services 60:11: 1516-21, 2009.
Parvez FM, Lobato MN, Greifinger RB. Tuberculosis Control: Lessons for Outbreak Preparedness in Correctional Facilities. Journal of Correctional Health Care OnlineFirst, published on May 12, 2010 as doi:10.1177/1078345810367593.
Stern MF, Greifinger RB, Mellow J. Patient Safety: Moving the Bar in Prison Health Care Standards. Am J Public Health. Nov 2010; 100: 2103 - 2110.
Blair P, Greifinger R, Stone TH, & Somers S. Increasing Access to Health Insurance Coverage for Pretrial Detainees and Individuals Transitioning from Correctional Facilities Under the Patient

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ROBERT B. GREIFINGER, M.D.
Protection and Affordable Care Act. American Bar Association. Accessed on March 23, 2011 at http://www.cochs.org/files/ABA/aba_final.pdf
Williams BA, Sudore RL, Greifinger R, Morrison RS. Balancing Punishment and Compassion for Seriously Ill Prisoners. Ann Int Med 2011; 155:122-126.
Weilandt C, Greifinger RB , Hariga F. HIV in Prison: New Situation and Risk Assessment Toolkit. Int. J. Prisoner Health 2011; 7(2/3):17-22.
Williams, B., Stern, M., Mellow, J., Safer, M., Greifinger, RB. Aging in correctional custody: Setting a policy agenda for older prisoner health. Am J Public Health. Published online ahead of print June 14, 2012: e1– e7. doi:10.2105/AJPH.2012.300704.
Greifinger, RB. Independent review of clinical health services for prisoners. Int. J. Prisoner Health 2012; 8(3/4):141-150.
Greifinger RB. Facing the facts, Int J Prisoner Health, Vol. 8 (3/4) (editorial).
Greifinger, RB. The Acid Bath of Cynicism. Correctional Law Reporter June/July 2013: 3, 14, 16.
Ahalt C, Trestman RL, Rich JD, Greifinger RB, Williams BA. Paying the price: the pressing need for quality, cost and outcomes data to improve correctional healthcare for older prisoners. J Am Geriatr Soc 61:2013– 2019, 2013.
Williams BA, Ahalt C, Greifinger RB. The older prisoner and complex medical care. Chapter in WHO guide Prisons and Health. WHO Copenhagen. 2014: 165-170.
Rich JD, Chandler R . .. . Greifinger RB et al. How health care reform can transform the health of criminal justice-involved individuals. Health Affairs 33, No. 3(2014: -
Allen SA, Greifinger RB. Asserting Control: A Cautionary Tale. International Journal of Prisoner Health 11:3, 2015.
Junod V, Wolff H, Scholten W, Novet B, Greifinger R, Dickson C & Simon O. Methadone versus torture: The perspective of the European Court of Human Rights. Heroin Addict Relat Clin Probl. Heroin Addict Relat Clin Probl 2018; 20(1): 31-36.
Pont J, Enggist S, Stover H, Williams B, Greifinger R, Wolff H. Prison Health Care Governance: Guaranteeing Clinical Independence. Published online ahead of print February 22, 2018.
ABSTRACTS & RESEARCH PRESENTATIONS Mikl J, Kelley K, Smith P, Greifinger RB, Morse D, Survival Among New York State Prison Inmates
With AIDS. Florence: Seventh International Conference on AIDS 1991 (poster session).
Sherman M, Coles B, Buehler J, Greifinger RB, Smith P, The HIV Epidemic in Inmates. Atlanta: Centers for Disease Control. 1991
Mikl J, Kelley K, Smith P, Greifinger RB, Morse D, Survival Among New York State Prison Inmates With AIDS, American Public Health Association. 1991 (poster session)
Mikl J, Smith P, Greifinger RB, Forte A, Foster J, Morse D, HIV Seroprevalence of Male Inmates Entering the New York State Correctional System. American Public Health Association. 1991 (poster session)
Valway SE, Richards S, Kovacovich J, Greifinger R, Crawford J, Dooley SW. Transmission of Multidrug-resistant Tuberculosis in a New York State Prison, 1991. Abstract No 15-15, In: World Congress on TB Program and Abstracts, Washington, D.C., November, 1992.

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ROBERT B. GREIFINGER, M.D.
Mikl J, Smith PF, Greifinger RB, HIV Seroprevalence Among New York State Prison Entrants. Ninth International Conference on AIDS 1993 (Poster Session)
Hornung CA, Greifinger RB, McKinney WP. Projected Prevalence of Diabetes Mellitus in the Incarcerated Population. J Gen Int Med 14 (Supplement 2):40, April 1999.

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EXHIBIT 2

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DECLARATION OF DEREK CUMMINGS
I, Derek Cummings, hereby declare under the penalty of perjury pursuant to 28 U.S.C. § 1746:
1. I make this declaration based on my personal knowledge except where I have indicated otherwise. If called as a witness, I could and would testify competently and truthfully to these matters.
2. I am a Professor of Biology at the University of Florida and at the Emerging Pathogens Institute. I am a specialist in infectious disease epidemiology. I specialize in influenza, dengue and other mosquito-borne pathogens, and other respiratory illnesses. Before the pandemic of COVID-19, I had worked on multiple aspects of coronaviruses including an outbreak investigation of the first major outbreak of MERS (genetically related to SARS and SARSCoV-2) in a hospital setting (in Saudi Arabia), efforts to estimate the extent of outbreaks of MERS and work to estimate the natural history of SARS. I have also conducted a large, multisite study of personal protective equipment to protect health care personnel from respiratory viruses including coronaviruses. My work on coronaviruses has been published in the New England Journal of Medicine, the Journal of American Medical Association and the Proceedings of the National Academy of Science. 1

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Presently, I am providing guidance to the US CDC on personal protective equipment policy for the SARS-CoV-2 outbreak and providing input on models of the outbreak as part of a CDC working group.
3. COVID-19 is a disease caused by a novel zoonotic coronavirus, called SARS-CoV-2. It emerged in the Chinese province of Hubei in late 2019 and has since spread to 173 countries. The World Health Organization declared COVID-19 a pandemic on March 11, 2020. As of March 25, 2020, over 468,000 confirmed cases have been reported worldwide, causing over 21,000 deaths. The United States has had local transmission since January 2020, and since March has been experiencing an exponential rise in confirmed cases and widespread transmission across the country.
4. COVID-19 can cause severe symptoms, in particular pneumonia (inflammation of the lungs associated with infection), and can lead to death. Certain populations are at particularly high risk of severe outcomes. The CDC advises that individuals over 65 years old, individuals who are immunocompromised, and individuals with certain comorbidities including lung disease, heart disease, obesity, diabetes are at high risk for severe COVID-19 illness. Various studies have examined the time from symptom onset to hospitalization or severe symptoms, with estimates of the average
2

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currently ranging from 7-9 days.
5. The case fatality rate among individuals presenting with symptoms has been estimated at 1.4% in Wuhan, the capital city of Hubei province, with higher rates in those over 65 and those with comorbidities. Case fatality rates are likely to vary from setting to setting, increasing as the healthcare system in an area becomes overburdened and sick patients are unable to be prioritized. Case fatality rates are also affected by surveillance practices in any setting which affect the number of cases included in the denominator of this rate.
6. Hospitalization with COVID-19 commonly is associated with need for intensive care and a ventilator to assist breathing. There are currently estimated to be ~45,000 ICU beds and ~160,000 ventilators in the USA, many of which are occupied by individuals sick with illnesses other than COVID-19. Uncontrolled spread of the virus would likely result in over 50% of the population becoming infected. Model projections, except under the most strict control measures, predict incidence of patients requiring hospitalization or ventilators rising well above the US capacity.
7. SARS-CoV-2 is a respiratory pathogen, meaning that it is spread through respiratory secretions, for example droplets expelled by an infected individual coughing or sneezing, in which the pathogen can remain viable 3

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for at least 3 hours. Transmission can occur either by direct person-to-person contact, inhalation of these droplets, or by touching surfaces contaminated with these droplets.
8. There are multiple sources of evidence documenting pre-symptomatic transmission (i.e. the ability of an infected individual to infect others before their symptoms appear). A study in Singapore and Tianjin, China, estimated that 50% of transmission is due to pre-symptomatic individuals. Interventions targeting only transmission by sick individuals (such as isolation of those with symptoms) are therefore unlikely to contain transmission.
9. Timely and widespread testing of symptomatic individuals and their contacts is therefore essential to slowing transmission of the virus. The success of massive testing, active contact tracing, and isolation of individuals showing any COVID-19 symptoms has been demonstrated by the case of the Republic of Korea, which appears to have controlled local transmission. The scale and extent of transmission in the United States makes these tactics on their own infeasible, as contact tracing is very resource-intensive. However, without widespread availability of testing for individuals experiencing symptoms, it is impossible to know if local transmission is occurring in a
4

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county or city and impossible to refine interventions in a specific location with the information that accurate surveillance provides.
10.There is no vaccine against SARS-CoV-2 infection, nor are there prophylactic pharmaceutical interventions or treatments that have been shown to reduce infection risk or symptom severity. Experimental treatments are, at a minimum, months from widespread availability due to the need to demonstrate effectiveness and obtain regulatory approval.
11.In the absence of pharmaceutical interventions, the only way to slow the rate of transmission is through a combination of preventive measures, chiefly social distancing, hygiene and isolation of cases. The lockdown in Wuhan, an extreme form of social distancing, was followed by a sustained decrease in transmission, and two months later the daily number of reported cases has dropped to zero, and lockdown restrictions will be lifted on April 8, 2020.
12.The goal of social distancing is to reduce the average number of contacts that individuals in the population have. All individuals should practice social distancing to the extent they can, not just to reduce their own risk of acquiring COVID-19, but to reduce their risk of infecting others. Reduced transmission reduces the growth rate of cases, easing pressure on hospitals and giving institutions more time to prepare. 5

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13.Detained populations, including those in immigration detention facilities, are at high risk for infectious disease compared to the general population. Factors contributing to this excess risk include poor sanitation, lack of access to hygiene precautions, and high population density. In addition, transfer of detained immigrants between facilities complicates efforts to control infection and trace contacts. A recent outbreak of mumps in immigration detention facilities demonstrate the ability of an infectious agent to spread rapidly between centers, infecting at least 900 people from September 2018-August 2019.
14.The ability of SARS-CoV-2 to spread rapidly and widely in a closed population is demonstrated by the experience of cruise ships, including the Diamond Princess, on which around 700 (19%) of passengers and crew on board were infected over the course of three weeks despite the initiation of quarantine protocols. 11 of these individuals subsequently died.
15.Transmission of SARS-CoV-2 in detention facilities in the United States would lead to widespread and severe illness among the detained population, particularly among those considered at high risk.
16.Personal hygiene measures are effective at reducing infection risk, but for a virus as transmissible as SARS-CoV-2 they will be not be sufficient on their 6

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own to curtail its spread. Furthermore, hygiene measures are only effective when there is sufficient access to them, and many individuals in incarcerated populations do not have adequate access to soap and water. Finally, other measures, such as regular disinfecting of surfaces, should supplement these efforts.
17.Due to the substantial amount of pre-symptomatic transmission observed in other settings, it is impossible to prevent intake of infectious individuals through screening for symptoms alone. Moreover, due to inadequate rates of COVID-19 testing in the United States, it is not possible to rule out local transmission because of lack of confirmed cases. Merely asking about travel history to areas with sustained community transmission, or contact with infected individuals, cannot rule out the possibility that an individual is infected with SARS-CoV-2 upon intake into a detention center.
18.Moreover, staff members who may be living in areas with sustained community transmission are able to transmit the disease to detained immigrants. This transmission too could occur while the staff members are asymptomatic, and thus cannot be controlled by screening for symptoms or contact history.
19.These concerns are not hypothetical: a detained immigrant in the Bergen 7

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County Jail, NJ, tested positive for SARS-CoV-2 on March 24, 2020, and that staffers at Elizabeth Detention Center, NJ, and Aurora Detention Center, CO, have also tested positive for SARS-CoV-2 20.Isolation of symptomatic individuals within detention settings similarly will not stop transmission before symptom onset. As there are several modes of transmission other than direct person-to-person contact, it is not possible to identify all individuals who have had contact with a COVID-19 case. Quarantine of suspected contacts will therefore likely reduce the rate of spread of the virus in a facility but will not eliminate transmission. Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 29 day in March, 2020 in Gainesville, Florida.
Prof. Derek Cummings
8

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EXHIBIT A

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CURRICULUM VITAE

DEREK A.T. CUMMINGS

PERSONAL DATA

Business Address:

Department of Biology University of Florida Bartram Hall Gainesville, FL 32608

Mobile: Fax: Email:

(410)-916-1371 (352)-392-9925 datc@ufl.edu

EDUCATION AND TRAINING

PhD, 2004

Johns Hopkins University, Whiting School of Engineering Geography and Environmental Engineering

MHS, 2004

Johns Hopkins University, Bloomberg School of Public Health International Health

MS, 2001

Johns Hopkins University, Whiting School of Engineering Geography and Environmental Engineering

ScB, 1996

Brown University Chemistry

PROFESSIONAL EXPERIENCE

UF Preeminence Professor

Department of Biology, University of Florida 2015-present

UF Preeminence Professor

Emerging Pathogens Institute 2015-present

Adjunct Professor

Department of Epidemiology, Johns Hopkins Bloomberg School of Public Health 2015-present

Adjunct Professor

Department of International Health, Johns Hopkins Bloomberg School of Public Health 2015-present

Associate Professor

Department of Epidemiology, Johns Hopkins Bloomberg School of Public Health 2013-2015

1

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Adjunct Associate Professor

Department of International Health, Johns Hopkins Bloomberg School of Public Health 2013-2015

Adjunct Associate Professor

Department of Epidemiology, University of Pittsburgh Graduate School of Public Health 2013-2015

Nonresident Fellow

Brookings Institution 2007-present

Assistant Professor

Department of Epidemiology, Johns Hopkins Bloomberg School of Public Health 2007-2013

Adjunct Assistant Professor

Department of International Health, Johns Hopkins Bloomberg School of Public Health 2007-2013

Adjunct Assistant Professor

Department of Epidemiology, University of Pittsburgh Graduate School of Public Health 2007-2013

Visiting Assistant Professor

Department of Epidemiology, University of Pittsburgh Graduate School of Public Health, University of Pittsburgh 2006 – 2007

Visiting Assistant Professor

Department of Biostatistics, Bloomberg School of Public Health, Johns Hopkins University 2006 – 2007

Research Associate

Department of International Health, Bloomberg School of Public Health, Johns Hopkins University 2004 – 2006

Program Coordinator

NIH Modeling Infectious Disease Agents Study (MIDAS) Center, University of Pittsburgh/Johns Hopkins University (pre-2006) 2003 - 2009

Research Assistant

Department of Geography and Environmental Engineering, GWC Whiting School of Engineering, Johns Hopkins University 1999-2004

Case Worker

Coalition for the Homeless, Crisis Intervention Program, NYC 1998

PROFESSIONAL ACTIVITIES

2

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Society Membership
Society for Epidemiological Research 2004-present
American Academy for the Advancement of Science 2004-present
Asia Pacific Society of Medical Virology 2001-present
American Society of Tropical Medicine and Hygiene 2000-present
DIMACS Focus on Computation and Mathematical Epidemiology 2000-2008
Participation on Advisory Panels
WHO Working Group on Dengue Burden Estimation 2014-present
EcoHealthNet Member of Steering Committee 2015-present
NIH P01 Flavivirus Infections: Pathogenesis and Prevention Member of External Advisory Committee 2013-present
WHO Disease Reference Group on Dengue and other Emerging Viral Diseases 2010-2011
Member of the WHO Informal Network for Mathematical Modeling, Working Group on Influenza A (H1N1), 2009 2009
U.S. Department of Health and Human Services, Secretary’s Advisory Council on Public Health Preparedness, Smallpox Modeling Working Group 2000-2002
Consultations World Health Organization-Immunization and Vaccine-related Implementation Research (IVIR) Advisory Committee Meeting-Consultation on Dengue Risk Maps 2017
MSF/Epicentre Design of vaccine trial to assess fractional dose of yellow fever vaccine. Trial to be conducted in Uganda and Kenya 2016-present
3

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MSF/Epicentre Analysis of vaccine trial data from Rotavirus vaccine trial 2016
World Health Organization Consultation on Mathematical Modeling of Dengue Intervention Impact 2014
Ministry of Health of Liberia Ebola Outbreak Epidemiological Investigation 2014-2015
Kingdom of Saudi Arabia MERS-CoV Outbreak Investigation Team 2013-2014
Medimmune Estimation of Burden of Influenza B 2011-2012
World Health Organization. Disease Reference Group on Dengue and other Emerging Viral Diseases of Public Health Importance. Scientific Committee. 2009
Epicentre and Medecins Sans Frontieres (MSF) Outbreak investigation of measles in Maroua, Cameroon 2009
World Health Organization. Center for Vaccine Research. Preparation of analysis of dengue models to assess future vaccine candidates. 2008
Data Safety and Management Boards (DSMB) MSF-Epicentre Randomized, double-blind non-inferiority trial of two antivenoms for the treatment of snakebite with envenoming, Central African Republican 2015-present
MSF-Epicentre Effect of systematic utilization of antibiotic therapy in the ambulatory treatment of uncomplicated severe acute malnutrition 2013-2014
EDITORIAL ACTIVITIES
Study Sections Member, NIH Clinical Research and Field Studies of Infectious Disease Study Section 2016-2019
NIH Special Emphasis Panel on International Collaborations in Environmental Health-ad hoc participation
4

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2014, 2015

NIH Clinical Research and Field Studies of Infectious Disease Study Section-ad hoc participation 2013, 2014, 2016

NIH Director’s Independence Award-ad hoc participation 2014, 2015, 2016

NIH Modeling and Analysis of Biological Systems-ad hoc participation 2013

NIH Infectious Disease, Reproductive Health, and Asthma/Pulmonary Conditions-ad hoc participation 2012, 2013

NSF/NIH Ecology and Evolution of Infectious Diseases-ad hoc participation 2012

Peer Review Activities

Associate Editor: American Journal of Epidemiology, 2010-2014

Academic Editor: PLoS Medicine, 2011, 2012, 2013, 2014, 2015 PLoS Computational Biology, 2009-2010, 2014

Referee: Nature, New England Journal of Medicine, Science, PLoS Biology, PLoS Medicine, Epidemiologic Reviews, American Journal of Epidemiology, Biostatistics, Emerging Infectious Diseases, Mathematical and Computer Modeling, PLoS Neglected Tropical Diseases, PLoS One, Biosecurity and Bioterrorism, Journal of Theoretical Biology, American Journal of Tropical Medicine and Hygiene, Journal of the Royal Society Interface, Proceedings of the Royal Society B, Physics Review A, Lancet, Proceedings of the National Academy of Science, Science, eLife

HONORS AND AWARDS

Awards

KAVLI Frontiers in Science University of Florida Term Professorship International Society for Disease Surveillance
Outstanding Research in Biosurveillance JHBSPH Teaching Excellence Award Advising, Mentoring, and Teaching Recognition Award (AMTRA) Burroughs Wellcome Career Award at the Scientific Interface UTRA Fellow, Brown University Meikeljohn Fellow, Brown University Rotary Scholarship National Merit Scholar

2017 2017
2015 2015 2012 2007 1996 1994 1992 1992

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PUBLICATIONS (*served as advisor/mentor) 127 peer-reviewed papers, cited 12334 times (Google Scholar), 21 papers have been cited more than 100 times, H-index of 44 (44 papers have been cited more than 44 times)
Journal Articles
1. Cummings DA, McMaster J, Rieger AL, Rieger PH. EPR spectroscopic and theoretical study chromium(I) carbonyl phosphine and phosphonite complexes. Organometallics 1997;16:4362-4368.
2. Epstein JM, Cummings DAT, Chakravarthy S, Singa RM, Burke DS. Toward a containment strategy for smallpox bioterror: An individual based computational approach. Brookings Monographs 2004.
3. Cummings DAT, Irizarry RA, Huang NE, Endy TP, Nisalak A, Ungchusak K, Burke DS. Travelling waves in the occurrence of dengue haemorrhagic fever in Thailand. Nature 2004;427:344-347.
4. Longini IM, Jr., Nizam A, Xu S, Ungchusak K, Hanshaoworakul W, Cummings DAT, Halloran ME. Containing pandemic influenza at the source. Science 2005;309:1083-7.
5. Ferguson NM, Cummings DAT, Cauchemez S, Fraser C, Riley S, Meeyai A, Iamsirithaworn S, Burke DS. Strategies for containing an emerging influenza pandemic in Southeast Asia. Nature 2005;437:209-214.
6. Cummings DAT, Schwartz IB, Billings L, Shaw LB, Burke DS. Dynamic effects of antibodydependent enhancement on the fitness of viruses. Proceedings of the National Academy of Sciences 2005;102:15259-64.
7. Schwartz IB, Shaw LB, Cummings DAT, Billings L, McCrary M, and Burke DS. Chaotic desynchronization of multistrain diseases. Physical Review E. 2005;72:066201.
8. Cummings DAT, Moss WJ, Long K, Wiysonge CS, Muluh TJ, Kollo B, Nomo E, Wolfe ND and Burke DS. Improved measles surveillance in Cameroon reveals two major dynamic patterns of incidence. International Journal of Infectious Diseases 2006;10:148-155.
9. Ferguson NM, Cummings DAT, Fraser C, Cajka JC, Cooley PC, Burke DS. Strategies for mitigating an influenza pandemic. Nature 2006;442:448-452.
10. Burke DS, Epstein JM, Cummings DAT, Parker JI, Cline KC, Singa RM, Chakravarty S. Individualbased computational modeling of smallpox epidemic control strategies. Academic Emergency Medicine 2006;13:1142-1149.
11. Longini, IM, Halloran ME, Nizam A, Yang Y, Xu S, Burke DS, Cummings DAT, Epstein JM. Containing a Large Bioterrorist Smallpox Attack: A Computer Simulation. International Journal of Infectious Diseases 2007;11:98-108.
12. Billings L, Schwartz IB, Shaw LB, McCrary M, Burke DS, Cummings DAT. Instabilities in multiserotype disease models with antibody-dependent enhancement. Journal of Theoretical Biology 2007;246:18-27.
13. Lessler J, Cummings DAT, Fishman S, Vora A, Burke DS. Transmissibility of Swine Flu at Fort Dix, 1976. Journal of the Royal Society Interfaces 2007;4:755-762.
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*14. Vora A, Burke DS, Cummings DAT. The impact of a physical geographic barrier on the dynamics of measles. Epidemiology and Infection 2008;136:713-720.
15. Halloran, M.E., Ferguson N.M., Eubank, S., Longini, I.M., Cummings, D.A.T., Lewis, B., Xu, S., Fraser, C., Vullikanti, A., Germann, T.C., Wagener, D., Beckman, R., Kadau, K., Barrett, C., Macken, C., Burke, D.S., Cooley, P. Modeling targeted layered containment of an influenza pandemic in the United States. Proceedings of the National Academy of Sciences 2008;105:4639-4644.
16. Epstein, JM, Parker J, Cummings DAT, Hammond RA. Coupled Contagion Dynamics of Fear and Disease: Mathematical and Computational Explorations. PLoS ONE 2008;3:e3955.
*17. Lessler, J, Reich, NG, Brookmeyer R, Perl TM, Nelson KE, Cummings DAT. A systematic review of the incubation periods of acute respiratory viral infections. Lancet Infectious Diseases 2009;9:291300.
18. Reich NG, Lessler J, Cummings DAT, Brookmeyer R. Estimating incubation period distributions with coarse data. Statistics in Medicine 2009;28:2769-84
19. Cummings DAT, Iamsirithaworn S, Lessler JT, McDermott A, Prasanthong R, Nisalak A, Jarman RG, Burke DS, Gibbons RV. The impact of the demographic transition on dengue in Thailand: insights from a statistical analysis and mathematical modeling. PLoS Medicine 2009;6:e1000139.
20. Cummings DAT. Temporal and Spatial Dynamics of Dengue Virus Transmission. Frontiers in Dengue Virus Research. 2009:173-181.
*21. Johansson M, Cummings DAT, Glass G. Multi-year climate variability and dengue: El Niño Southern Oscillation, Weather, and Dengue Incidence in Puerto Rico, Mexico, and Thailand. PLoS Medicine 2009;6:e1000168.
*22. Lessler J, Reich N, Cummings DAT, NYC DOHMH Swine Influenza Investigation Team. Outbreak of 2009 pandemic influenza A (H1N1) at a New York City High School. New England Journal of Medicine. 2009 Dec 31;361(27):2628-36.
23. Solomon BD, Lacbawan F, Mercier S, Clegg NJ, Delgado MR, Rosenbaum K, Dubourg C, David V, Olney AH, Wehner LE, Hehr U, Bale S, Paulussen A, Smeets HJ, Hardisty E, Tylki-Szymanska A, Pronicka E, Clemens M, McPherson E, Hennekam RCM, Hahn J, Stashinko E, Levey E, Wieczorek D, Roeder E, Schell-Apacik CC, Booth CW, Thomas RL, Kenwrick S, Cummings DAT, Bous SM, Keaton A, Balog JZ, Hadley D, Zhou N, Long R, Vélez JI, Pineda-Alvarez DE, Odent S, Roessler E, Muenke M. Mutations in ZIC2 in Human Holoprosencephaly: Description of a Novel ZIC2-Specific Phenotype and Comprehensive Analysis of 157 Individuals. Journal of Medical Genetics 2010;47:513-24.
*24. Abbott III GH, Word DP, Cummings, DAT, Laird, CD. Estimating Seasonal Drivers in Childhood Infectious Diseases with Continuous Time and Discrete-Time Models. Proceedings of the American Control Conference. 2010:5137-5142.
*25. Word DP, Young JK, Cummings DAT, Laird CD. Estimation of seasonal transmission parameters in childhood infectious disease using a stochastic continuous time model. Proceedings of the 20th European Symposium on Computer Aided Process Engineering 2010:229-234.
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*26. Fried J, Gibbons RV, Kalayanarooj S, Thomas S, Srikiatkhachorn A, Yoon IK, Jarman RG, Greene S, Cummings DAT. Serotype specific differences in the risk of dengue hemorrhagic fever in hospitalized cases in Bangkok, Thailand, 1994-2006. PLoS Neglected Tropical Diseases 2010;4:e617.
27. Solomon, BD, Pineda-Alvarez DE, Raam MS, Cummings DAT. Evidence for inheritance in patients with VACTERL association. Human Genetics 2010;127:731-3.
*28. Lessler J, Brookmeyer R, Reich NG, Nelson KE, Cummings DAT, Perl TM. Identifying probable sources of infection for respiratory viruses. Infection Control and Hospital Epidemiology 2010;31:80915.
*29. van Panhuis WG, Gibbons RV, Endy TP, Rothman AL, Nisalak A, Burke DS, Cummings DAT. Inferring the serotype of dengue virus infections based on pre- and post-infection neutralizing antibody titers. Journal of Infectious Diseases. 2010;202:1002-10.
30. Solomon BD, Pineda-Alvarez DE, Raam MS, Bous SM, Keaton AA, Vélez JI, Cummings DAT. Analysis of component findings in 79 patients diagnosed with VACTERL association. American Journal of Medical Genetics part A 2010;152A:2236-44.
*31. Lessler J, dos Santos T, Aguilera X, Brookmeyer R. PAHO Influenza Technical Working Group, Cummings, DAT. H1N1pdm in the Americas. Epidemics 2010;2:132-138.
*32. Lessler J, Moss WJ, Lowther SA, Cummings DAT. Maintaining high rates of measles immunization in Africa. Epidemiology and Infection 2010;5:1-11.
33. Yang Y, Halloran ME, Daniel MJ, Longini IM, Jr., Burke DS, Cummings DAT. Modeling competing infectious pathogens from a Bayesian perspective: application to influenza studies with incomplete laboratory results. Journal of the American Statistical Association 2011;105:1310-1322.
34. Stebbins S, Stark JH, Prasad RK, Thompson WW, Mitruka K, Rinaldo C, Vukotich, CJ Jr., Burke DS, Cummings DAT. Sensitivity and specificity of rapid influenza testing of children in a community setting. Influenza and Other Respiratory Viruses 2011;5:104-9.
*35. Rodriguez-Barraquer I, Cordiero MT, Braga C, de Souza WV, Marques ET, Cummings DAT. From re-emergence to hyperendemicity: the natural history of the dengue epidemic in Brazil. PLoS Neglected Tropical Diseases 2011;5:e935.
36. Stebbins S, Cummings DAT, Stark J, Vukotich C, Mitruka K, Thompson W, Rinaldo C, Roth L, Wagner M, Wisniewski SR, Dato V, Eng H, Burke DS. Reduction in the incidence of influenza A but not influenza B associated with use of hand sanitizer and cough hygiene in schools: a randomized controlled trial. Pediatric Infectious Disease Journal 2011;30:921-926.
*37. Lessler J, Reich N, Perl TM, Cummings DAT. Visualizing clinical evidence: citation networks for the incubation periods of respiratory viral infections. PLoS One 2011;6:e19496.
38. Fraser C, Cummings DAT, Klinkenberg D, Burke DS, Ferguson NM. Influenza transmission in households during the 1918 pandemic. American Journal of Epidemiology 2011;174:505-14.
39. Lee BY, Connor D, Kitchen S, Bacon K, Shah M, Brown S, Bailey R, Laosiritaworn Y, Burke DS, Cummings DAT. Economic value of dengue vaccine in Thailand. American Journal of Tropical Medicine and Hygiene 2011;84:764-72.
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*40. Van Panhuis W, Luxemburger C, Pengsaa K, Limkittikul K, Sabchareon A, Lang J, Durbin A, Cummings DAT. Decay and persistence of maternal dengue antibodies among infants in Bangkok. American Journal of Tropical Medicine and Hygiene 2011;85:355-62.
41. Lessler J, Cummings DAT, Read J, Wang S, Zhu H, Smith G, Guan Y, Jiang C, Riley S. Locationspecific patterns of exposure to recent pre-pandemic strains of influenza A in southern China. Nature Communications 2011;2:423.
42. Johansson M, Hombach J, Cummings DAT. Models of the impact of dengue vaccines: a review of current research and potential approaches. Vaccine 2011;29:5860-8.
43. Luquero FJ, Pham-Orsetti H, Cummings DAT, Ngaunji PE, Nimpa M, Fermon F, Ngoe N, Sosler S, Strebel P, Grais RF. A long-lasting measles epidemic in Maroua, Cameroon 2008-2009: mass vaccination as response to the epidemic. Journal of Infectious Diseases. 2011;204 Suppl 1:S243-51.
*44. Althouse BM, Ng YY, Cummings DAT. Prediction of dengue incidence using search query surveillance. PLoS Neglected Tropical Diseases. 2011;5:e1258.
45. Lessler JT, Metcalf CJE, Grais RF, Luquero F, Cummings DAT, Grenfell BT. Measuring the performance of vaccination programs using cross-sectional surveys: a likelihood framework and retrospective analysis. PLoS Medicine 2011;8:e1001110.
46. Chaninan Sonthichai, Iamsirithaworn S, Cummings DAT, Shokekird P, Niramitsantipong A, Khumket S, Chittaganpitch M, Lessler J. Effectiveness of non-pharmaceutical interventions in controlling an Influenza A outbreak in a school, Thailand, November 2007. Outbreak, Surveillance and Investigation Report 2011;4:6-11.
*47. Word DP, Cummings DAT, Burke DS, Iamsirithaworn S, Laird CD. A nonlinear programming approach for estimation of transmission parameters in childhood infectious disease using a continuous time model. Journal of the Royal Society Interface. 2012 Feb 15. [Epub ahead of print].
*48. Reich NG, Lessler J, Cummings DAT, Brookmeyer R. Estimating absolute and relative case fatality ratios from infectious disease surveillance data. Biometrics. 2012. doi: 10.1111/j.15410420.2011.01709.x. [Epub ahead of print]
49. Cummings DAT, Boni M, WHO-VMI Dengue Vaccine Modeling Group. Assessing the potential of a candidate dengue vaccine with mathematical modeling. PLoS Neglected Tropical Diseases. 2012 Mar;6(3):e1450.
*50. Stark JH, Sharma R, Ostroff S, Cummings DAT, Stebbins S, Ermentrout B, Burke DS, Wisniewski S. Local Spatial and Temporal Processes of Influenza in Pennsylvania, USA: 2003-2009, PLoS One, 2012;7(3):e34245.
51. Burton J, Cummings DAT, Schwartz I, Billings L. Disease Persistence in Epidemiological Models: The Interplay between Vaccination and Migration. Mathematical Biosciences. 2012:239(1):91-6.
52. Read JM, Edmunds WJ, Riley S, Lessler JT, Cummings DAT. Close encounters of the infectious kind: a review of methods to measure social mixing behavior. Epidemiology and Infection. 2012 Jun 12:1-14..
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*53. Salje H, Lessler J, Endy TP, Curriero F, Gibbons RV, Nisalak A, Nimmannitya S, Kalayanarooj S, Jarman RG, Thomas S, Burke DS, Cummings DAT. Revealing the micro-scale spatial signature of dengue transmission and immunity in an urban population. Proceedings of the National Academy of Sciences. 2012 Jun 12;109(24):9535-8.
54. Blackwood JC, Cummings DAT, Broutin H, Iamsirithaworn S, Rohani P. The population ecology of infectious diseases with pertussis as a case study. Parasitology. 2012 Apr 13:1-11.
55. Lessler J, Riley S, Read JM, Wang S, Zhu H, Smith GJD, Guan Y, Jiang CQ, Cummings DAT. Evidence for Antigenic Seniority in Influenza A (H3N2) Antibody Responses in Southern China. PLoS Pathogens. 2012 8(7): e1002802. doi:10.1371/journal.ppat.1002802
*56. Stark JH, Cummings DAT, Ermentrout B, Ostroff S, Sharma R, Stebbins S, Burke DS, Wisniewski S. Local variations in spatial synchrony of influenza epidemics. PLoS One. 2012;7(8):e43528. Epub 2012 Aug 16.
*57. Rainwater-Lovett K, Rodriguez-Barraquer I, Cummings DAT, Lessler J. Variation in dengue virus plaque reduction neutralization testing: systematic review and pooled analysis. BMC Infectious Diseases. 2012 Sep 28;12(1):233. [Epub ahead of print]
*58. Althouse BM, Lessler J, Sall A, Diallo M, Hanley K, Watts D, Weaver S, Cummings DAT. Synchrony of Sylvatic Dengue Isolations: A Multi-host, Multi-vector SIR Model of Dengue Virus Transmission in Senegal. PLoS Neglected Tropical Diseases. 2012 Nov;6(11):e1928.
*59. Azman A, Rudolph K, Cummings DAT, Lessler J. The incubation period of cholera: a systematic review. Journal of Infection. 2012 Nov 29. doi:pii: S0163-4453(12)00347-7.
60. Meltzer A, Pierce R, Cummings DAT, Pines JM, May L, Smith M, Marcotte J, McCarthy M. Rapid (13)C Urea breath test to identify Helicobacter Pylori infection in Emergency Department patients with upper abdominal pain. Western Journal of Emergency Medicine. 2013 May;14(3):278-82. doi: 10.5811/westjem.2012.12.15173.
61. Reiner RC, Perkins TA, Barker CM, Niu T, Fernando Chaves L, Ellis AM, George DB, Le Menarch A, Pulliam J, Bisanzio D, Buckee C, Chiyaka C, Cummings DAT, Garcia A, Gatton M, Gething PW, Hartley DM, Johnston G, Klein E, Michael E, Linsday SW, Lloyd AL, Pigott D, Reisen WK, Ruktanonchai N, Singh B, Tatem AJ, Kitron U, Hay SI, Scott TW, Smith DL. A systematic review of mathematical models of mosquito-borne pathogen transmission: 1970-2010. Journal of the Royal Society Interface. 2013 Feb 13;10(81):20120921. doi: 10.1098/rsif.2012.0921. Print 2013 Apr 6. Review.
62. Blackwood J, Cummings DAT, Broutin H, Iamsirithaworn S, Rohani P. Deciphering the impacts of vaccination, demographic transition and immunity on pertussis epidemiology in Thailand. Proceedings National Academy of Sciences USA. 2013 Jun 4;110(23):9595-600. doi: 10.1073/pnas.1220908110. Epub 2013 May 20.
*63. Mier-y-Teran-Romero L, Schwartz IB, Cummings DAT. Breaking the symmetry: Differences among serotypical transmission rates enhance persistence in dengue fever models. Journal of Theoretical Biology. 2013 Sep 7;332:203-10. doi: 10.1016/j.jtbi.2013.04.036. Epub 2013 May 7.
*64. Reich NG, Shrestha S, King AA, Rohani P, Lessler J, Kalayanarooj S, Yoon IK, Gibbons RV,
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Burke DS, Cummings DAT. Interactions between serotypes of dengue highlight epidemiological impact of cross-immunity. Journal of the Royal Society Interface. 2013 Jul 3;10(86):20130414. doi: 10.1098/rsif.2013.0414. Print 2013.
65. Assiri A, McGeer A, Perl TM, Price CS, Al Rabeeah AA, Cummings DAT, Alabdullatif ZN, Assad M, Almulhim A, Makhdoom H, Madani H, Alhakeem R, Al-Tawfiq JA, Cotten M, Watson SJ, Kellam P, Zumla AI, Memish ZA; the KSA MERS-CoV Investigation Team. Hospital outbreak of Middle East Respiratory Syndrome Coronavirus. New England Journal of Medicine. 2013. Jun 19. Epub ahead of Print.
66. Liu SH, Brotman RM, Zenilman JM, Gravitt PE, Cummings DAT. Menstrual cycle and detectable human papillomavirus in reproductive women: a time series study. Journal of Infectious Diseases. 2013 Jul 24. Epub ahead of Print.
*67. Rodriguez-Barraquer IB, Mier-y-Teran-Romero L, Burke DS, Cummings DAT. Challenges in the interpretation of dengue vaccine trial results. PLoS Neglected Tropical Diseases. 2013 Aug 29;7(8):e2126
68. Anderson KB, Gibbons RV, Cummings DAT, Nisalak A, Green S, Libraty DH, Jarman RG, Srikiatkhachorn A, Mammen MP, Darunee B, Yoon IK, Endy TP. A shorter time interval between first and second dengue infections is associated with protection from clinical illness in a school-based cohort in Thailand. Journal of Infectious Diseases. 2013 Aug 20. [Epub ahead of print]
69. Lee RM, Lessler JT, Lee RA, Rudolph K, Reich NG, Perl TM, Cummings DAT. Incubation periods of viral gastroenteritis: a systematic review. BMC Infectious Disease. 2013. 13(1):446.
70. Word DP, Young JK, Cummings DAT, Iamsirithaworn S, Laird CD. Interior-Point Methods for Estimating Seasonal Parameters in Discrete-Time Infectious Disease Models. PLoS One. 2013. 8(10):e74208.
*71. Liu SH, Cummings DAT, Zenilman JM, Gravitt PE, Brotman RM. Characterizing the Temporal Dynamics of Human Papillomavirus DNA Detectability Using Short-Interval Sampling. Cancer Epidemiology, Biomarkers and Prevention. 2013. Oct. 15. Epub ahead of print.
72. Live Dengue Vaccines Technical Consultation Reporting Group (including Cummings DAT), Bentsi-Enchill AD, Schmitz J, Edelman R, Durbin A, Roehrig JT, Smith PG, Hombach J, Farrar J. Longterm safety assessment of live attenuated tetravalent dengue vaccines: deliberations from a WHO technical consultation. Vaccine. 2013:31(23):2603-9.
*73. Rodriguez-Barraquer I, Buathong R, Iamsirithaworn S, Nisalak A, Lessler JT, Jarman RG, Gibbons RV, Cummings DAT. Revisiting Rayong: Shifting seroprofiles of dengue in Thailand and their implications for transmission and control. American Journal of Epidemiology. doi:10.1093/aje/kwt256.
*74. Rodriguez-Barraquer I, Mier-y-Teran-Romero L, Schwartz IB, Burke DS, Cummings DAT. Potential opportunities and perils of imperfect dengue vaccines. Vaccine. 2013. doi:pii: S0264410X(13)01537-5.
75. van Panhuis WG, Grefenstette J, Jung SY, Chock NS, Cross A, Eng H, Lee BY, Zadorozhny V, Brown S, Cummings DAT, Burke DS. Contagious diseases in the United States from 1888 to the present. New England Journal of Medicine. 2013. Nov. 28 369(22):2152-8.
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*76. Azman AS, Stark JH, Althouse BM, Vukotich CJ Jr., Stebbins S, Burke DS, Cummings DAT. Household transmission of influenza A and B in a school-based study of non-pharmaceutical interventions. Epidemics. 2013. 5(4): 181-6.
77. Smith DL, Perkins TA, Reiner RC, Barker CM, Niu T, Fernando Chaves L, Ellis AM, George DB, Le Menach A, Pulliam JRC, Bisanzio D, Buckee C, Chiyaka C, Cummings DAT, Garcia AJ, Gatton ML, Gething PW, Hartley DM, Johnston G, Klein EY, Michael E, Lloyd AL, Pigott DM, Reisen WK, Ruktanonchai N, Singh BK, Stoller J, Tatem AJ, Kitron U, Godfray HCJ, Cohen JM, Hay SI, Scott TW. Recasting the theory of mosquito-borne pathogen transmission dynamics and control. Trans R Soc Trop Med Hyg. 2014 April; 108(4): 185–197.
78. Grabowski MK, Lessler J, Redd AD, Kagaayi J, Laeyendecker O, Ndyanabo A, Nelson MI, Cummings DAT, Bwanika JB, Mueller AC, Reynolds SJ, Munshaw S, Ray SC, Lutalo T, Manucci J, Tobian AAR, Chang LW, Beyrer C, Jennings JM, Nalugoda F, Serwadda D, Wawer MJ, Quinn TC, Gray RH, and the Rakai Health Sciences Program. The role of viral introductions in sustaining communitybased HIV epidemics in rural Uganda: evidence from spatial clustering, phylogenetics, and egocentric transmission models. PLoS Medicine. 2014 Mar 4;11(3):e1001610.
79. Rudolph K, Lessler J, Moloney R, Kmush B, Cummings DAT. Incubation periods of mosquitoborne viral infections: a systematic review. American Journal of Tropical Medicine and Hygiene. 2014. May 90(5):882-91.
*80. Althouse BA, Durbin AP, Hanley KA, Halstead SB, Weaver SC, Cummings DAT. Viral kinetics of primary dengue virus infection in non-human primates: a systematic review and individual pooled analysis. Virology. 2014 Mar;452-453:237-46.
81. Bhoomiboonchoo P, Gibbons RV, Huang A, Yoon IK, Buddhari D, Nisalak A, Chansatiporn N, Thipayamongkolgul M, Kalanarooj S, Endy T, Rothman AL, Srikiatkhachorn A, Green S, Mammen MP, Cummings DAT, Salje H. The spatial dynamics of dengue virus in Kamphaeng Phet, Thailand. PLoS Neglected Tropical Diseases. 2014. Sep 11;8(9); e3138
*82. Salje H, Rodriguez-Barraquer I, Rainwater-Lovett K, Nisalak A, Thaisomboonsuk, Thomas SJ, Fernandez S, Jarman RG, Yoon IK, Cummings DAT. Variability in Dengue Titer Estimates from Plaque Reduction Neutralization Tests Poses a Challenge to Epidemiological Studies and Vaccine Development. PLoS Neglected Tropical Diseases. 2014. Jun 4;8(6).
82. Ferguson NM, Cummings DAT. How season and serotype determine dengue transmissibility. Proceedings of the National Academy of Science USA. 2014. Jun 19. pii: 201407648.
83. Read JM, Lessler J, Riley S, Wang S, Tan LJ, Kwok KO, Guan Y, Jiang CQ, Cummings DAT. Social mixing patterns in rural and urban areas of southern China. Proceedings of the Royal Society B. 2014 Apr 30;281(1785)20140268.
84. Kucharski AJ, Kwok KO, Wei VW, Cowling BJ, Read JM, Lessler J, Cummings DAT, Riley S. The contribution of social behavior to the transmission of influenza A in a human population. PLoS Pathogens. 2014 Jun;10(6):e1004206.
85. Velasco JMS, Alera MTP, Ypil-Cardenas CA, Dimaano EM, Jarman RG, Chinnawirotpisan P, Thaisomboonsuk B, Yoon IK, Cummings DAT, Mammen P Mammen Jr. Demographic, clinical and
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laboratory findings among adult and pediatric patients hospitalized with dengue in the Philippines. Southeast Asian Journal of Tropical Medicine and Public Health. 2014 45(2); 337-345.
*86. Reich NG, Cummings DAT, Lauer SA, Zorn M, Robinson C, Nyquist AC, Price CS, Simberkoff M, Radonovich LJ, Perl TM. Triggering Interventions for Influenza: The ALERT Algorithm. Clinical Infectious Diseases. 2014 doi: 10.1093/cid/ciu749
87. Kwok KO, Cowling BJ, Wei VW, Wu KM, Read JM, Lessler J, Cummings DAT, Malik Peiris JS, Riley S. Social contacts and the locations in which they occur as risk factors for influenza infection. Proc. R. Soc. B 2014 Aug; 281(1789); 20140709.
88. Kwok KO, Jiang C, Tan L, Justin L, Read JM, Zhu H, Guan Y, Cummings DAT, Riley S. [An international collaborative study on influenza viruses antibody titers and contact patterns of individuals in rural and urban household of Guangzhou]. Zhonghua liu zing bing xue za zhi. 2014 April; 35(4); 433-436. In Chinese.
*89. Althouse BA Hanley KA, Diallo M, Sall A, Ba Y, Faye O, Watts D, Weaver SC, Cummings DAT. Impact of climate and mosquito vector abundance on sylvatic arbovirus circulation dynamics in Senegal. Am J Trop Med Hyg. 2014 Nov. 13-0617.
90. Lessler JT, Rodriguez-Barraquer I, Cummings DAT, Garske T, Van Kerkhove M, Mills H, Truelove S, Hakeem A, Albarrak A, Ferguson NM. Estimating potential incidence of MERS-CoV associated with Hajj pilgrims to Saudi Arabia, 2014. PLoS Currents Outbreaks. OBK-14-0048.
91. Jiang CQ, Lessler J, Kim L, Kwok KO, Read JM, Wang S, Tan L, Zhu H, Guan Y, Riley S, Cummings DAT. A study of influenza immunity in urban and rural Guangzhou region of China, the Fluscape Study. Chinese Journal of Preventive Medicine. 2014 Apr;35(4):433-6.
92. Kucharski A, Lessler JT, Read J, Zhu H, Jiang CQ, Guan Y, Cummings DAT, Riley SR. Estimating the life course of influenza A(H3N2) antibody responses from cross-sectional data. 2015. PLoS Biology. 13(3):e1002082.
93. Mazet J, Daszak P, Wei Q, Zhao G, Cummings DAT, Desmond JS, Sung N, Rosenthal J, Zhang S, Xiao X, Xu J, Zhu G, Shi Z, Cao W, Feng F, Liu X, Pan W, Zuo L. A Joint China – US Call for an Interdisciplinary Approach to Emerging Infectious Diseases. EcoHealth. 2015 Dec;12(4):555-9. doi: 10.1007/s10393-015-1060-1.
*94. Van Panhuis W, Choisy M, Xiong X, Chok NS, Akarasewi P, Iamsirithaworn S, Lam SK, Chong CK, Lam FK, Phommasak B, Vongphrachanh P, Bouaphanh K, Rekol H, Hien NT, Thai PQ, Duong TN, Chuang JH, Liu YL, Ng LC, Shi Y, Tayag EA, Roque Jr. VG, Lee Suy LL, Jarman RG, Gibbons RV, Velasco JMS, Yoon IK, Burke DS, Cummings DAT. Synoptic epidemiology of dengue across eight countries in Southeast Asia reveals region-wide synchrony and traveling waves. Proceedings of the National Academy of Sciences. Proc Natl Acad Sci U S A. 2015 Oct 20;112(42):13069-74.
*95. Rodríguez-Barraquer I, Solomon SS, Kuganantham P, Srikrishnan AK, Vasudevan CK, Iqbal SH, Balakrishnan P, Solomon S, Mehta SH, Cummings DAT. The hidden/unseen burden of dengue and chikungunya in Chennai, India. PLoS Neglected Tropical Diseases. 2015. Jul 16;9(7):e0003906. doi: 10.1371/journal.pntd.0003906.
96. Lessler JT, Salje H, Van Kerkhove MD, Ferguson NM, Cauchemez S, Rodriquez-Barraquer I,
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Hakeem R, Jombart T, Aguas R, Al-Barrak A, Cummings DAT and the MERS-CoV Scenario and Modeling Working Group. Estimating the Severity and Subclinical Burden of MERS-CoV Infection in the Kingdom Saudi Arabia. American Journal of Epidemiology. Apr 1;183(7):657-63.
97. Blackwood J, Cummings DAT, Iamsirithaworn S, Rohani P. Does pertussis vaccination reduce transmission or symptomatic disease only? An example using age-structured data from Thailand. Epidemics. 16. 1-7.
*98. Clapham H, Cummings DAT, Nisalak A, Kalayanarooj S, Thaisomboonsuk B, Klungthong C, Fernandez S, Srikiatkhachorn A, Macareo LR, Lessler J, Reiser J, Yoon IK. Epidemiology of Infant Dengue Cases Illuminates Serotype-Specificity in the Interaction between Immunity and Disease, and Changes in Transmission Dynamics. PLoS Negl Trop Dis. 2015 Dec 11;9(12):e0004262.
99. Kraemer MU, Perkins TA, Cummings DAT, Zakar R, Hay SI, Smith DL, Reiner RC Jr. Big city, small world: density, contact rates, and transmission of dengue across Pakistan. J R Soc Interface. 2015 Oct 6;12(111):20150468
100. Jiang CQ, Lessler J, Kim L, Kwok KO, Read JM, Wang S, Tan L, Hast M, Zhu H, Guan Y, Riley S, Cummings DAT. Cohort Profile: A study of influenza immunity in the urban and rural Guangzhou region of China: the Fluscape Study. Int J Epidemiol. 2016 Feb 14.
101. Nisalak A, Clapham HE, Kalayanarooj S, Klungthong C, Thaisomboonsuk B, Fernandez S, Reiser J, Srikiatkhachorn A, Macareo LR, Lessler JT, Cummings DAT, Yoon IK. Forty Years of Dengue Surveillance at a Tertiary Pediatric Hospital in Bangkok, Thailand, 1973-2012. Am J Trop Med Hyg. 2016 Mar 28. pii: 15-0337.
102. Guclu H, Read J, Vukotich CJ Jr, Galloway DD, Gao H, Rainey JJ, Uzicanin A, Zimmer SM, Cummings DAT. Social Contact Networks and Mixing among Students in K-12 Schools in Pittsburgh, PA. PLoS One. 2016 Mar 15;11(3):e0151139
103. Lessler J, Cummings DAT.Mechanistic Models of Infectious Disease and Their Impact on Public Health. Am J Epidemiol. 2016 Mar 1;183(5):415-22.
*104. Chadsuthi S, Iamsirithaworn S, Triampo W, Cummings DAT. The impact of rainfall and temperature on the spatial progression of cases during the chikungunya re-emergence in Thailand in 2008-2009. Trans R Soc Trop Med Hyg. 2016 Feb;110(2):125-33.
*105. Clapham HE, Rodriguez-Barraquer I, Azman AS, Althouse BM, Salje H, Gibbons RV, Rothman AL, Jarman RG, Nisalak A, Thaisomboonsuk B, Kalayanarooj S, Nimmannitya S, Vaughn DW, Green S, Yoon IK, Cummings DAT. Dengue Virus (DENV) Neutralizing Antibody Kinetics in Children After Symptomatic Primary and Postprimary DENV Infection. J Infect Dis. 2016 May 1;213(9):1428-35.
106. Lessler J, Ott C, Carcelen A, Konikoff J, Williamson J, Bi Q, Kucirka LM, Cummings DAT, Reich NG, Chaisson LH. Times to key events in the course of Zika infection and their implications: a systematic review and pooled analysis. Bulletin of the World Health Organization. 2016. Nov. 1;94(11):841-849.
107. Rodriguez-Barraquer I, Salje H, Lessler J, Cummings DAT. Predicting intensities of Zika infection and microcephaly using transmission intensities of other arboviruses. bioRxiv, 041095
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108. Reich NG, Lessler JT, Sakrejda K, Lauer SA, Iamsirithaworn S, Cummings DAT. Evaluating timeseries prediction models using a generalization of the Mean Absolute Scaled Error. American Statistician. 2016;70(3):285-292.
109. Radonovich L, Bessesen MT, Cummings DAT, Gaydos C, Nyquist C, Price C, Gilbert CL, Gorse G, Reich NG, Rodriguez-Barradas M, Simberkoff M, Perl TM. The Respiratory Protection Effectiveness Clinical Trial (ResPECT): A cluster-randomized clinical trial to compare the effectiveness of respirator and medical mask effectiveness against respiratory infection and illness in healthcare workers. BMC Infectious Diseases. 2016 Jun 2;16:243.
110. Cauchemez S, Novellet P, Cori A, Thibaut J, Garske T, Clapham H, Moore S, Mills HL, Salje H, Collins C, Rodriguez-Barraquer I, Riley S, Truelove S, Algarni H, Alhakeem R, AlHarbi K, Turkistani A, Aguas RJ, Cummings DAT, Van Kerkhove MD, Donnelly CA, Lessler J, Fraser C, Al-Barrak A, Ferguson NM. Unraveling the drivers of MERS-CoV Transmission. PNAS. 2016 Aug.113(32):9081-6.
*111. Truelove S, Zhu H, Lessler J, Riley S, Read JM, Wang S, Kwok KO, Guan Y, Jiang CQ, Cummings DAT. A comparison of hemagglutination inhibition and neutralization assays for characterizing immunity to seasonal influenza A. Influenza and other Respiratory Infections. 2016 Jun 15;10(6):e00047
112. Salje H, Lessler J, Paul K, Azman AS, Rahman MW, Rahman M, Cummings DAT, Gurley E, Cauchemez S. How behaviors, social structures and space shape the spread of infectious diseases: chikungunya as a case study. PNAS. 2016. Nov. 22;113(47):13420-13425.
113. Grantz KH , Rane MS, Salje H, Glass GE, Schachterle SE, Cummings DAT. Disparities in influenza mortality and transmission related to socio-demographic factors within Chicago in the pandemic of 1918. PNAS. 2016. Nov. 29;113(48):13839-13844.
114. Salje H, Cummings DAT, Lessler JT. Estimating infectious disease transmission distances using the overall distribution of cases. Epidemics. 2016 Dec;17:10-18.
115. Hoang QC, Salje H, Rodriguez-Barraquer I, Yoon IK, Chau NVV, Hung NT, Tuan HM, Lan PT, Willis B, Nisalak A, Kalayanarooj S, Cummings DAT, Simmons CP. Synchrony of dengue incidence in Ho Chi Minh City and Bangkok. PLoS Neglected Tropical Diseases. 2016. Dec. 10(12):e0005188.
116. Neil Ferguson, Isabel Rodriguez-Barraquer, Luis Mier-y-Teran-Romero, Cummings DAT. Modelling the optimal use of the first licensed dengue vaccine: balancing benefit against potential risks. Science. 2016 Sep 2;353(6303):1033-1036.
117. Flasche S, Jit M, Rodríguez-Barraquer I, Coudeville L, Recker M, Koelle K, Milne G, Hladish TJ, Perkins TA, Cummings DAT, Dorigatti I, Laydon DJ, España G, Kelso J, Longini I, Lourenco J, Pearson CA, Reiner RC, Mier-Y-Terán-Romero L, Vannice K, Ferguson N. The long-term safety, public health impact and cost-effectiveness of routine vaccination with a recombinant, live-attenuated dengue vaccine (Dengvaxia): A model comparison study. PLoS Med. 2016 Nov 29;13(11):e1002181.
118. Salje J, Lessler J, Berry IM, Melendrez MC, Endy T, Kalayanarooj S, Atchareeya A, Chanama S, Sangkijporn S, Klungthong C, Thaisomboonsuk B, Nisalak A, Gibbons RV, Iamsirithaworn S, Macareo LR, Yoon IK, Sangarsang A, Jarman RG, Cummings DAT. Dengue diversity across spatial and temporal scales: Local structure and the effect of host population size. Science. 355(6331), 1302-1306.
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119. Kirsch TD, Moseson H, Massaquoi M, Nyenswah TG, Goodermote R, Rodriguez-Barraquer I, Lessler J, Cummings DAT, Peters DH. Impact of interventions and the incidence of ebola virus disease in Liberia-implications for future epidemics. Health Policy and Planning. 2017 Mar 1;32(2):205214
120. Grubaugh ND, Ladner JT, Kraemer MUG, Dudas G, Tan AL, Gangavarapu K, Wiley MR, White S, Theze J, Magnani DM, Preito K, Reyes D, Bingham A, Paul LM, Robles-Sikisaka R, Oliveira G, Pronty D, Metsky HC, Baniecki ML, Barnes KG, Chak B, Freije CA, Gladden-Young A, Gnirke A, Luo C, MacInnis B, Matranga CB, Park DJ, Qu J, Schaffner SF, Tomkins-Tinch C, West KL, Winnicki SM, Wohl S, Yozwiak NL, Quick J, Fauver JR, Khan K, Brent SE, Reiner RC, Lictenberger PN, Ricciardi M, Bailey VK, Watkins DI, Cone MR, Kopp EW, Hogan KN, Cannons AC, Jean R, Garry RF, Loman NJ, Faria NR, Porcelli MC, Vasquez C, Nagle ER, Cummings DAT, Stanek D, Rambaut A, SanchezLockhart M, Sabeti PC, Gillis LD, Michael SF, Bedford T, Pybus OG, Isem S, Palacios G, Andersen KG. Multiple introductions of Zika virus into the United States revealed through genomic epidemiology. Nature. 2017. 546(7658):401.
*121. Clapham HE, Cummings DAT, Johansson MA. Immune status alters the probability of apparent illness due to dengue virus infection: Evidence from a pooled analysis across multiple cohort and cluster studies. PLoS Negl Trop Dis. 2017 Sep 27;11(9):e0005926. doi: 10.1371/journal.pntd.0005926. eCollection 2017 Sep.
*122. Althouse BM, Guerbois M, Cummings DAT, Diop OM, Faye O, Faye A, Diallo D, Sadio BD, Sow A, Faye O, Sall AA, Diallo M, Benefit B, Simons E, Watts DM, Weaver SC, Hanley KA. Role of monkeys in the sylvatic cycle of chikungunya virus in Senegal. Nature Communications. 2018 Mar 13;9(1):1046. doi: 10.1038/s41467-018-03332-7.
123. Frederick J, Brown AC, Cummings DAT, Gaydos CA, Gibert CL, Gorse GJ, Los JG, Nyquist AC, Perl TM, Price CS, Radonovich LJ, Reich NG, Rodriguez-Barradas MC, Bessesen MT, Simberkoff MS. Protecting Healthcare Personnel in Outpatient Settings: The Influence of Mandatory Versus Nonmandatory Influenza Vaccination Policies on Workplace Absenteeism During Multiple Respiratory Virus Seasons. Infection Control and Hospital Epidemiology. 2018 Apr;39(4):452-461. doi: 10.1017/ice.2018.9. Epub 2018 Mar 8.
124. Lauer SA, Sakrejda K, Ray EL, Keegan LT, Bi Q, Suangtho P, Hinjoy S, Iamsirithaworn S, Suthachana S, Laosiritaworn Y, Cummings DAT, Lessler J, Reich NG. Prospective forecasts of annual dengue hemorrhagic fever incidence in Thailand, 2010-2014. Proc Natl Acad Sci USA. 2018 Mar 6;115(10):E2175-E2182. doi: 10.1073/pnas.1714457115. Epub 2018 Feb 20.
*125. Katzelnick LC, Harris E, Baric R, Coller BA, Coloma J, Crowe Jr JE, Cummings DAT et al. Immune correlates of protection for dengue: State of the art and research agenda. Vaccine 35, no. 36 (2017): 4659-4669.
126. Wesolowski A, Winter A, Tatem AJ, Qureshi T, Engø-Monsen K, Buckee CO, Cummings DAT, Metcalf CJE. Measles outbreak risk in Pakistan: exploring the potential of combining health system data with novel data-streams to strengthen control. Epidemiology and Infection. In press.
127. Salje H, Cummings DAT, Rodriguez-Barraquer I, Katzelnick LC, Lessler J, Klungthong C, Thaisomboonsuk B, Nisalak A, Weg A, Ellison D, Macareo L, Yoo IK, Jarman R, Thomas S, Rothman AL, Endy T, Cauchemez S. Reconstruction of dengue antibody titers and infection histories to characterize individual and population risk. Nature. 2018. May 23. Doi:10.1038/s41586-018-0157-4.
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128. Ball JD, Prosperi MA, Brown A, Chen X, Kenah E, Yang Y, Cummings DAT, Rivers CM. The role of benzathine penicillin G in predicting and preventing all-cause acute respiratory disease in military recruits: 1991-2017. Epidemiology and Infection. 2018. Jul 5:1-7.
129. Chadsuthi S, Althouse BM, Iamsirithaworn S, Triampo W, Grantz KH, Cummings DAT. Travel distance and human movement predict paths of emergence of spatial spread of Chikungunya. Epidemiology and Infection. 2018. Jul. 9:1-9.
130. Smith MK, Solomon SS, Cummings DAT, Srikrishnan AK, Kumar MS, Vasudevan CK, McFall AM, Lucas GM, Celentano DD, Mehta SH. Overlap between harm reduction and HIV service utilization among people who inject drugs in India: Implications for HIV combination prevention. International Journal of Drug Policy. 2018. Jul;57:111-118.
131. Pollett S, Melendrez MC, Maljkovic Berry I, Duchene S, Salje H, Cummings DAT, Jarman RG. Understanding dengue virus evolution to support epidemic surveillance and counter-measure development. Infection, Genetics and Evolution. 2018. Apr. 25;62:279-295.
132. Smith MK, Graham M, Latkin CA, Mehta SH, Cummings DAT. Quantifying potentially infectious sharing patterns among people who inject drugs in Baltimore, USA. Epidemiology and Infection. 2018. Aug. 2:1-9.
133. Kucharski AJ, Lessler J, Cummings DAT, Riley S. Timescales of influenza A/H3N2 antibody dynamics. PLoS Biology. 2018. Aug. 20; 16(8): e2004974.
Articles and Editorials not peer reviewed
1. Epstein JM, Cummings DA, Chakravarthy S, Singa RM, Burke DS. Toward a containment strategy for smallpox bioterror: an individual-based computational approach. Brookings Institution Center on Social and Economic Dynamics, 2002. Working Paper 31.
2. Epstein, JM, Parker J, Cummings DAT., Hammond R. Coupled Contagion Dynamics of Fear and Disease: Mathematical and Computational Explorations. Brookings Institution Center on Social and Economic Dynamics, 2007. Working Paper 50.
3. Yin Y, Cummings DAT, Burke, D.S., Louis, T.A. Bayesian analysis of infectious disease time series data. Technical report. Johns Hopkins Bloomberg School of Public Health Department of Biostatistics. 2007.
4. Johansson, M., Hombach, J. Cummings DAT. Models of the impact of dengue vaccines: a review of current research and potential approaches. WHO Report. Initiative for Vaccine Research. 2008.
5. Cummings DAT, Lessler J. Design and Analysis of Vaccine Studies by M. Elizabeth Halloran, Ira M. Longini, Jr., and Claudio J. Struchiner. Am J Epidemiol 2011;174:872-3.
6. Cummings DAT. Jumping Germs. Ecohealth. July. 2013. 1-2. Epub ahead of publication.
Letters
1. Bhandari A, Schaefer A, Cummings DAT. Comment on “Simple models of influenza progression with a heterogeneous population” by Richard Larson. Operations Research Forum. 2007. 55:3.
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2. Solomon B, Raam MS, Pineda-Alvarez DE, Cummings DAT. Patients with VACTERL association deserve careful scrutiny: Response to Jenetzky et al. American Journal of Medical Genetics Part A 2011;155:2042-3.
3. Rodriguez-Barraquer I, Mier-y-Teran-Romero L, Ferguson NM, Burke DS, Cummings DAT. Differential efficacy of dengue vaccine by immune status. Lancet. May 2;385(9979):1726. doi: 10.1016/S0140-6736(15)60889-3.
4. Rodriguez-Barraquer I, Salje H, Cummings DAT. Dengue Vaccine in Regions of Endemic Disease. N Engl J Med. 2016 Apr 7;374(14):1388.
5. Grantz KH, Rane MS, Salje H, Glass GE, Schachterle SE, Cummings DAT. Reply to Shanks and Brundage: Many plausible mechanisms of pandemic mortality disparities. Proceedings of the National Academy of Sciences (PNAS). 2017 Apr 6.
Chapters
1. Cummings DAT, Lessler J. Infectious Disease Dynamics. In Infectious Disease Dynamics: Theory and Practice. Third Edition. 2016.
2. Perkins TA, Reiner, Jr., RC, Rodriguez-Barraquer I, Smith DL, Scott TW, Cummings DAT. A review of transmission models of dengue: a quantitative and qualitative analysis of model features. In Dengue and Dengue Hemorrhagic Fever. Second Edition. 2014/8/29. CABI Publishing.
Meeting abstracts and presentations
*served as advisor/mentor; presenting author)
1. AL Roberts, Cummings DA, Totten LA, Leckta T. Computational methods for predicting heats of formation of halogenated methyl and ethyl radicals. National Meeting of the American Chemical Society, 2000, San Francisco, CA
2. Cummings DAT, Burke DS. Spatial Synchrony and Phase Coherency of Seasonal Variation in Temperature, Rainfall and Dengue in Thailand. GEOMED, 2003, Baltimore, MD
3. Cummings DAT, Huang NE, Nisalak A, Endy TP, Burke DS. Periodic traveling waves in dengue hemorrhagic fever incidence in Thailand. American Society of Tropical Medicine and Hygiene, 2003, Philadelphia, PA
4. Cummings DAT, Huang NE, Nisalak A, Endy TP, Burke DS. Traveling waves in dengue hemorrhagic fever incidence in Thailand.6th Asia Pacific Congress of Medical Virology. 2003, Kuala Lumpur, Malaysia
5. Cummings DAT, Huang NE, Nisalak A, Endy TP, Burke DS. Spatial coherence and association of temperature, rainfall and the incidence of dengue hemorrhagic fever in Thailand. 53rd Annual Meeting of the American Society of Tropical Medicine and Hygiene, 2004, Miami, FL
6. Cummings DAT, Schwartz IB, Shaw L, Billings L, Burke DS. Simulation of the Population Effects of Dengue Vaccination. First Asian Regional Dengue Research Network Meeting, 2004, Bangkok. Thailand
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7. Cummings DAT, Schwartz IB, Shaw L, Billings L, Burke DS. Dynamic effects of antibody-dependent enhancement on the fitness of dengue viruses. National Institutes of Allergy and Infectious Disease Modeling Immunity for Biodefense Annual Meeting, 2006, Boston, MA
*8. Cummings DAT, Rabaa MA. The relative timing of seasonal weather patterns and dengue incidence across the Southeast Asian region. 55th Annual Meeting of the American Society of Tropical Medicine and Hygiene, Atlanda, G, 2006. [Am J Trop Med Hyg 2005;75:S137-138].
*9. Fichtenberg CM, Cummings DAT, Glass TA, Ellen JM. The impact of differential mixing by sexual activity on racial/ethnic STI disparities: A simulation study. 2nd North American Congress of Epidemiology, Seattle, WA, 2006.
10. Cummings DAT, Schwartz I, Burke DS, Gibbons RV. Spatial heterogeneity in the force of infection of dengue in Thailand and the spatial structure of phase relationships in multiannual oscillations. 57th Annual Meeting of the American Society of Tropical Medicine and Hygiene, New Orleans, LA, 2008.
11. Cummings DAT, Imsirithaworn S, Lessler J, Prasanthong R, Jarman RG, Burke DS, Gibbons RV. Dengue and the demographic transition. 57th Annual Meeting of the American Society of Tropical Medicine and Hygiene, New Orleans, LA, 2008.
*12. Rodriguez-Barraquer I, Marques E, Cummings DAT. Age shifts of DHF in Brazil: insight from a serological survey in Recife. 58th Annual Meeting of the American Society of Tropical Medicine and Hygiene, Washington, DC, 2009.
*13. Benenson JD, Gibbons RV, Nisalak A, Kalayanarooj S, Cummings DAT. Susceptible reconstruction and serotype specific estimates of the transmissibility and seasonality of transmission of dengue viruses in Thailand. 58th Annual Meeting of the American Society of Tropical Medicine and Hygiene, Washington, DC, 2009.
*14. Van Panhuis WG, Gibbons RV, Endy T, Burke DS, Cummings DAT. Assessing the accuracy of inferring the serotype of dengue virus infections based on pre- and post-infection neutralizing antibody titers. 58th Annual Meeting of the American Society of Tropical Medicine and Hygiene, Washington, DC, 2009.
15. Cummings DAT, Iamsirithaworn S, Lessler JT, McDermott A, Prasanthong R, Nisalak A, Jarman RG, Burke DS, Gibbons RV. The impact of changes in human demography on cycles of dengue hemorrhagic fever incidence in Thailand. 42nd Annual Meeting of the Society for Epidemiologic Research, Anaheim, CA, 2009.
*16. Lessler J, Read JM, Riley SR, Cummings DAT. The use of satellite imagery in contact/travel questionnaires. 42nd Annual Meeting of the Society for Epidemiologic Research, Anaheim, CA, 2009.
*17. Lessler J, Cummings DAT, Read JM, Wang S, Zhu H, Smith GJD, Guan Y, Jiang CQ, Riley S. Location-specific patterns of exposure to recent pre-pandemic strains of Influenza A in Southern China. 3rd North American Congress of Epidemiology, Montreal, Canada, 2010.
18. Lessler J, Reich NG, Iamsirithaworn S, Cummings DAT. Predicition and imputation of spatiotemporal data: dengue surveillance in Thailand. 3rd North American Congress of Epidemiology, Montreal, Canada, 2010.
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*19. Althouse B, Sall A, Hanley K, Diallo M, Watts D, Weaver S, Cummings DAT. A multi-host, multivector SIR model of Dengue-2 virus in Senegal. 59th Annual Meeting of the American Society of Tropical Medicine and Hygiene, Atlanta, GA, 2010.
*20. Van Panhuis WG, Luxemburger C, Pengsaa K, Limkittkil K, Sabchareon A, Cummings DAT, Lang J, Durbin AP. A longitudinal analysis of maternal dengue antibody kinetics among infants in Bangkok. 59th Annual Meeting of the American Society of Tropical Medicine and Hygiene, Atlanta, GA, 2010.
*21. Reich NG, Shrestha S, King AA, Rohani P Gibbons RV, Cummings DAT. Using a discrete-time state-space model to estimate the degree of cross-protection between serotypes of dengue virus due to infection. 3rd International Conference on Infectious Disease Dynamics, Boston, MA, 2011.
*22. Lessler J, Metcalf CM, Cummings DA, Grenfell BT. The coverage of measles vaccinations activities in Africa. 3rd International Conference on Infectious Disease Dynamics, Boston, MA, 2011.
*23. Chadsuthi S, Althouse B, Iamsirithaworn S, Wannapong T, Cummings DAT. Climate, land use and travel times predict the spatial advance of cases of chikungunya during an outbreak in Southern Thailand. 60th Annual Meeting of the American Society of Tropical Medicine and Hygiene, Philadelphia, PA 2011.
*24. Rainwater-Lovett K, Rodriguez-Barraquer I, Cummings DAT, Lessler J. Variation in dengue virus plaque reduction neutralization testing: systematic review and pooled analysis. 60th Annual Meeting of the American Society of Tropical Medicine and Hygiene, Philadelphia, PA 2011.
*25. Althouse BM, Ng YY, Cummings DAT. Prediction of dengue incidence using search query surveillance. 60th Annual Meeting of the American Society of Tropical Medicine and Hygiene, Philadelphia, PA 2011.
26. Cummings DAT, Reich NG, Burke DS, Nisalak A, Jarman R, Gibbons RV. Estimates of the degree of length of cross-protection between dengue serotypes from time series models. 60th Annual Meeting of the American Society of Tropical Medicine and Hygiene, Philadelphia, PA 2011.
*27. Rodriguez-Barraquer I, Buathong R, Iasirithaworn S, Lessler JT, Jarman RG, Cummings DAT. The changing epidemiology of dengue in Thailand: insights from serological studies conducted in the same location, 30 years apart. 60th Annual Meeting of the American Society of Tropical Medicine and Hygiene, Philadelphia, PA 2011.
*28. Buathong R, Rodriguez-Barraquer I, Iasirithaworn S, Lessler JT, Jarman RG, Gibbons RV, Cummings DAT. Serological survey of dengue infections among individuals in Rayong, Thailand. 60th Annual Meeting of the American Society of Tropical Medicine and Hygiene, Philadelphia, PA 2011.
*29. Azman A, Salje J, Rodriguez-Barraquer I, Althouse BM, Endy TP, Nisalak A, Jarman R, Gibbons RV, Cummings DAT. Longitudinal characterization of antibody response to dengue virus in Bangkok, Thailand. 60th Annual Meeting of the American Society of Tropical Medicine and Hygiene, Philadelphia, PA 2011.
*30. Salje H, Lessler J, Endy T, Curriero F, Gibbons RV, Nisalak A, Nimmannitya S, Jarman R, Burke DS, Cummings DAT. Evidence for spatially and temporally clustered transmission and immunity of dengue virus from hostpial-based surveillance. 60th Annual Meeting of the American Society of Tropical Medicine and Hygiene, Philadelphia, PA 2011.
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31. Building models of school-based interventions to control influenza and other respiratory pathogens: the role of proximity detectors and contact surveys to describe the social mixing of school aged children. Cummings DAT, Cousins JH, Creppage K, Galloway D, Guclu H, Li K, Noble E, Brown S, Rainey J, Read J, Gao H, Uzicanin A, Vukotich CJ Sr., Zimmer SM. Dynamics of Preparedness. University of Pittsburgh.
32. Seroprevalence of dengue immunity among multiple species of non-human primates in Senegal. American Society of Tropical Medicine and Hygiene. Cummings DAT, Althouse BA, Cummings DAT, Guerbois M, Althouse BM, Sall AA, Diallo M, Diallo D, Diop O, Benefit B, Simons E, Watts DM, Weaver SC, Hanley KA. American Society of Tropical Medicine and Hygiene. 2013.
*33. Potential opportunities and perils of imperfect dengue vaccines: Direct vs. indirect vaccine effects Rodriguez-Barraquer I, Mier-y-Terán-Romero L, Schwartz IB, Burke DS, Cummings DAT. Epidemics. Amsterdam, 2013.
34. Recreating Historic Patterns of Influenza Incidence from Cross-Sectional Serologic Data. Lessler J, Riley S, Read JM, Zhu H, Jiang CQ, Guan Y, Derek AT Cummings. Epidemics. Amsterdam, 2013.
35. Social behavior and influenza infection. Kucharski AJ, Kwok KO, Wei VWI, Cowling BJ, Read JM, Lessler JT, Cummings DAT, Riley S, Epidemics. Amsterdam, 2013.
36. Social connectivity along a population density gradient in southern China. Read JM, Lessler J, Riley S, Wang S, Tan LJ, Kwok KO, Guan Y, Jiang CQ, Cummings DAT. Epidemics. Amsterdam, 2013.
37. Nonlinear Programming Techniques for Efficient Estimation of Large Spatio-Temporal Infectious Disease Models. Cummings DAT, Laird CD, Word D, Burke DS. MIDAS Annual meeting. 2014
38. Adjusting underreported real time case data for prediction of Dengue in Thailand. Sakrejda K, Reich NG, Cummings DAT, Suangtho P, Hinjoy S, Iamsirithaworn S, Clapham HE, Salje H. American Society of Tropical Medicine and Hygiene. 2014
*39. Characterizing global and local trends in dengue transmission: insight from age-specific surveillance data. Rodriguez Barraquer I, Cummings DAT. American Society of Tropical Medicine and Hygiene. 2014
*40. Estimating cross-enhancement and cross-protection of dengue viruses using time series data from Thailand. Clapham HE, Reich NG, Yoon IK, Jarman RG, Sakrejda K, Fernandez S, Nisalak A, Kalayanarooj S, Cummings DAT. American Society of Tropical Medicine and Hygiene. 2014
*41. Evidence for the recent emergence of dengue in Bangladesh: results from a seroprevalence study. Salje H, Naser AM, Rahman M, Rahman MZ, Lessler J, Cummings DAT, Luby SP, Gurley E. American Society of Tropical Medicine and Hygiene. 2014
*42. Mechanisms of traveling waves and periodic spatial synchronization of dengue hemorrhagic fever incidence in Thailand. Mier-y-Teran Luis, Grabowski K, Lessler J, Salje H, Rodriguez-Barraquer I, Burke D, Anantapreecha S, A-Nuegoonpipat A, Jarman R, Iamsirithaworn S, Bianco Si, Shaw LB, Schwartz IB, Cummings DAT. American Society of Tropical Medicine and Hygiene. 2014
43. Real-time forecasting of the 2014 dengue fever season in Thailand. Reich NG, Sakrejda K, Cummings DAT, Suarngtho P, Hinjoy S, Iamsiithaworn S, Clapham HE, Salje H, Lessler J. American Society of Tropical Medicine and Hygiene. 2014
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*44. Variability in dengue titer estimates from plaque reduction neutralization tests poses a challenge to epidemiological studies and vaccine development. Salje H, Rodriguez-Barraquer I, Rainwater-Lovett K, Nisalak A, Thaisomboonsuk B, Thomas SJ, Fernandez S, Jarman RG, Yoon IK, Cummings DAT. American Society of Tropical Medicine and Hygiene. 2014
*45. What proportion of dengue virus infections result in no apparent disease? Clapham HE, Cummings DAT, Johansson MA. American Society of Tropical Medicine and Hygiene. 2014
46. Reconstructing transmission chains of influenza among school children using deep sequencing and multiple sources of contact information. US NIH MIDAS Annual meeting. Washington, DC. May. 2016.
47. Dengue cohort comparison project. American Society of Tropical Medicine and Hygiene. Atlanta, GA.Nov. 2016.
48. Correlation of Corrective Eyewear to Acute Respiratory Infection (ARI) Among Outpatient Healthcare Personnel (HCP). ID Week. New Orleans, LA. Oct. 2016.
49. Predicting county-level influenza activity using school absenteeism data in Allegheny County, PA from 2010-2015. ID Week. New Orleans, LA. Oct. 2016.
50. Influenza and Other Respiratory Viral Infections Among School Children in Pittsburgh, Pennsylvania. ID Week. New Orleans, LA. Oct. 2016.
51. Ventilator-Associated Staphylococcus aureus and Pseudomonas aeruginosa Infections Among Intensive Care Unit (ICU) Patients in Six Healthcare Systems: Temporal Trends and Risk Factors. ID Week. New Orleans, LA. Oct. 2016.
52. Acute Respiratory Infections (ARIs) Among Outpatient Healthcare Personnel (HCP). ID Week. New Orleans, LA. Oct. 2016.
53. Predicting county-level influenza activity using school absenteeism data in Allegheny County, PA from 2010-2015. International Society for Disease Surveillance. Annual Meeting. Atlanta, Dec. 2016.
54. Utility of Nontraditional Data Sources for Early Detection of Influenza. International Society for Disease Surveillance. Annual Meeting. Atlanta, Dec. 2016.
Scientific Presentations (without abstracts)
1. Time-series decomposition methods for infectious disease epidemiology. North American Congress of Epidemiology, 2006, Seattle, WA.
2. Spatial coherence and association of temperature, rainfall and the incidence of dengue hemorrhagic fever in Thailand. DIMACS Workshop on Facing the Challenge of Infectious Diseases in Africa: The Role of Mathematical Modeling, 2006, Johannesburg, South Africa
3. Modeling new vaccines for measles. DIMACS Workshop on Facing the Challenge of Infectious Diseases in Africa: The Role of Mathematical Modeling, 2006, Johannesburg, South Africa
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4. Strategies for looking for pattern in spatio-temporal data. DIMACS Workshop on Spatio-temporal and network models of disease spread, 2007, Edinburgh, Scotland
5. Dengue and the demographic transition. 2nd International Conference on Dengue and Dengue Hemorrhagic Fever, 2008, Phuket, Thailand
6. Influenza transmission in households in 1918. Epidemics Conference on Infectious Disease Dynamics, 2008, Asilomar, CA
7. Immune landscapes of human influenza in southern China. Ecology and Evolution of Infectious Diseases, National Institutes of Health and National Science Foundation, 2010, Snowbird, UT
8. Location-specific patterns of exposure to recent pre-pandemic strains of influenza A in southern China: the Fluscape project. Ecology and Evolution of Infectious Diseases, National Institutes of Health and National Science Foundation, 2011, Madison, WI
9. The role of modeling epidemics. What do we learn? Infectious Disease Society of America, 2011, Washington, DC
10. Location-specific patterns of exposure to recent pre-pandemic strains of influenza A in southern China: the Fluscape project. Ecohealth, 2011, Baltimore, MD
11. Dengue Work of the VMI. Vaccine Modeling Initiative, 2011, Princeton, NJ.
12. Estimates of the degree and length of cross-protection between dengue serotypes from time series models. American Society of Tropical Medicine and Hygiene, 2011, Philadelphia, PA
13. Immunological landscapes of influenza in southern China: the Fluscape project. NIH MIDAS annual meeting, 2012, Boston, MA.
14. Estimates of the degree and length of cross-protection between dengue serotypes from time series models. NIMBioS Dengue Workshop, 2012, Knoxville, TN.
15. Interactions between serotypes of dengue highlight epidemiological impact of cross-immunity. Dynamical Systems Applied to Biology and Natural Sciences, 2013, Lisbon, Portugal.
16. Models of the impact of partially effective dengue vaccines. Gates Foundation Mathematical Modeling Summit. 2013. Seattle, WA.
17. Integrated dengue control strategies. Gates Foundation Mathematical Modeling Summit. 2013. Seattle, WA.
18. Mechanistic models of transmission utilizing contact data. Society for Epidemiologic Research. 2013, Boston, MA.
19. Natural History and Transmissibility of the MERS-CoV. American Society of Microbiology. Annual Meeting. 2014. Washington, DC.
20. Spatiotemporal patterns of Dengue and Chikungunya virus. NIH RAPIDD Annual Meeting. 2014. Bethesda, MD.
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21. Dengue modeling consortium: Analysis of CYD23 data. Sanofi. 2014. Lyon, France.
22. Spatiotemporal patterns of Dengue and Chikungunya virus. MIDAS Annual meeting. 2014. Atlanta, GA.
23. Middle Eastern Respiratory Syndrome (MERS): Investigating a Novel Coronavirus. MIDAS Annual meeting. 2014. Atlanta, GA.
24. Spatial dynamics of dengue at multiple scales. Gates Grand Challenges Meeting. 2014. Seattle, WA.
25. Transmission dynamics of dengue at multiple scales. WHO Consultation on Dengue Burden. 2014. Atlanta, GA.
26. Reporting requirements. Specific requirements for dengue intervention models. WHO Consultation on the impact of dengue vaccines. 2014. Geneva, Switzerland.
27. Transmission dynamics of dengue and immunization impact at multiple scales. WHO Consultation on the impact of dengue vaccines. 2014. Geneva, Switzerland.
28. Characterizing Ebola Transmission and Surveillance in West Africa. Society for Epidemiologic Research. June, 2015. Denver, CO.
29. Immunological landscapes of influenza in China. NIH RAPIDD Meeting on Landscape theory in infectious disease dynamics. September, 2015. Bethesda, MD.
30. Trends in cases of dengue in infants: insights into serotype differences in disease in naive and nonnaive individuals and population transmission dynamics. Clapham HE, Nisalak A, Kalayanarooj S, Thaisomboonsuk B, Klungthong C, Fernandez S, Srikiatkhachorn A, Macareo LR, Lessler J, Cummings DAT, Yoon IK. American Society of Tropical Medicine and Hygiene. 2016. New Orleans, LA.
31. Treatment as prevention strategies for HCV will require massive scale up to see benefits in prevention. Luis Mier-y-Teran-Romero, Derek Cummings, David Thomas, Carl Latkin, John Wong, Greg Kirk, David Thomas, Shruti Mehta. CROI, February, 2016. Boston, MA.
32. Age Sharing Patterns in People who Inject Drugs in Baltimore: Implications for HCV Treatment as Prevention Strategies. M. Kumi Smith, Matt Graham, Shruti Mehta, Luis Mier-y-Teran-Romero, Carl Latkin, Derek A.T. Cummings. Epidemics. 2016. Clearwater, FL.
Invited Seminars
1. Recurring spatial temporal traveling waves in dengue hemorrhagic fever incidence in Thailand. Capitol Area Dengue Research Meeting, 2004, Silver Spring, MD
2. Modeling outbreaks for public health response. Emerging Respiratory Infections Conference, Delaware Health and Social Services, 2004, Dover, DE
3. Spatial patterns of dengue hemorrhagic fever in Thailand. Department of Geography, University of Maryland, 2004, College Park, MD
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4. Periodic Traveling Waves in Dengue Hemorrhagic Fever Incidence in Thailand. Virginia Bioinformatics Institute, 2004, Blacksburg, VA
5. Processes impacting the incidence of dengue hemorrhagic fever on multiple temporal and spatial scales. 53rd Annual Meeting of the American Society of Tropical Medicine and Hygiene, 2004, Miami, FL
6. Dynamic effects of antibody dependent enhancement on the fitness of dengue viruses. Fogarty International Center, 2005, Washington, DC
7. Spatial synchrony of the waves of incidence of influenza in 1918. Influenza Modeling Workshop, Global Health Security Action Group, G8, 2005, London, UK.
8. Can pandemic influenza be contained with antivirals? Global Emerging Infections Surveillance and Response System, U.S. Department of Defense, 2005, Linthicum, MD
9. Dynamic effects of antibody dependent enhancement on the fitness of dengue viruses. Center for Infectious Disease Dynamics, Penn State University, 2005, State College, PA
10. Strategies for containing an emerging influenza pandemic in Southeast Asia. Modeling Working Group. Johns Hopkins Department of Biostatistics, 2005, Baltimore, MD
11. Simulating Pandemic Influenza. Global Pandemic Initiative. IBM Industry Solutions Laboratory, 2005, Hawthorne, NY
12. Containing Pandemic Influenza. Pandemic Influenza Preparedness Training, Johns Hopkins Center for Preparedness, 2006, Cumberland, MD
13. Dengue dynamics in Thailand over the last 20 years. Thailand Centers for Disease Control, 2006, Bangkok, Thailand
14. Containing Pandemic Influenza. Infectious Disease Informatics. Surveillance, Modeling and Response. National Center for Supercomputing Applications, 2006, Urbana-Champaign, IL
15. Dengue viruses: periodic traveling waves and serotype cycling in Thailand. Five decades of discovery: A symposium to honor the contributions of Monto Ho, 2006, Pittsburgh, PA
16. Shifts in the epidemiology of dengue in Thailand. University of Pittsburgh. Department of Epidemiology, 2007, Pittsburgh, PA
17. Dengue and the demographic transition. NIH Fogarty Center, 2008, Bethesda, MD
18. Open questions in dengue research. Penn State University: Research and Policy for Infectious Diseases Dynamics, 2008, University Park, PA
19. Shifts in the age of dengue hemorrhagic fever cases in Thailand. CDC Branch, 2008, Puerto Rico
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20. Models of the impact of dengue vaccines: a review of current research and potential approaches. WHO Scientific Consultation of Dengue Vaccines, 2008, Belem, Brazil
21. Swine H1N1 influenza A: transmissibility, natural history and the potential impact of nonpharmaceutical interventions. Johns Hopkins University, 2009, Baltimore, MD
22. Recent findings of transmission dynamics of dengue. WHO Dengue Reference Group, 2009, Havana, Cuba
23. Dynamics and natural history of H1N1 influenza. Grand Rounds, Welch Center, Johns Hopkins University, 2010, Baltimore, MD
24. The impact of spatial heterogeneity in the transmission of dengue on the synchrony of incidence. University of Michigan MAC-EPID Annual Seminar, Ann Arbor, MI 2010.
25. Spatial variation in the transmission of dengue in Thailand: the role of demography and density. Harvard School of Public Health, 2010, Boston, MA
26. Dengue Virus: Global trends, cycles and waves. University of Michigan, 2010, Ann Arbor, MI
27. Spatial heterogeneity in the transmission of dengue at multiple spatial scales. National Center for Medical Intelligence, 2011, Frederick, MD
28. Modeling approaches in long-term safety assessment of live attenuated dengue vaccines. Technical consultation on long term safety assessment of live attenuated dengue vaccines. WHO, 2011, Geneva
29. Immune landscapes of human influenza in southern China: The Fluscape Project. Harbin School of Public Health, 2011, Harbin, China
30. Modeling approaches in long-term safety assessment of live attenuated dengue vaccines. Technical Consultation on a Framework for Dengue Vaccine Safety Assessment. WHO, 2011, Geneva
31. Dengue modeling work at Johns Hopkins and the Vaccine Modeling Initiative. Secretaría de Salud (Ministry of Health), 2011, México
32. Spatial heterogeneity of influenza immunity and infection: the effect of population density and effective neighborhood size. University of Massachusetts Amherst, 2012, Amherst, MA
33. Models of the impact of partially effective dengue vaccines. 2013. Sanofi Pasteur. Lyon, France.
34. Spatial heterogeneity of influenza immunity and infection: the Fluscape study. Ecology and Evolution of Infectious Disease Meeting. 2013. State College, PA.
35. Techniques and Opportunities in Infectious Disease Modeling. Center for AIDS Research Seminar. Johns Hopkins Bloomberg School of Public Health. 2013. Baltimore, MD.
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36. The Fluscape study. Guangzhou Centers for Disease Control. 2013. Guangzhou, China.
37. Social Mixing and Respiratory Transmission in Schools Study. US Centers for Disease Control. 2013. Atlanta, GA.
38. Middle Eastern Respiratory Syndrome (MERS): Investigating a Novel Coronavirus. Johns Hopkins Health Advisory Board. 2013. Baltimore, MD.
39. Social Mixing and Respiratory Transmission in Schools. US Centers for Disease Control. 2013. Atlanta, GA.
40. Opportunities and challenges to treatment as prevention approaches for Hepatitis C virus control. Johns Hopkins University Center for AIDS Research. 2014. Baltimore, MD.
41. Review of Dengue Models. White House Office of Science and Technology Policy meeting on Integrating Prediction and Forecasting Models for Decision-making: Dengue Epidemic Prediction. 2014. Washington, DC.
42. Potential opportunities and peril of imperfect dengue vaccines. Johns Hopkins Medical School. 2014. Baltimore, MD.
43. Ventilator Associated Pneumonia among ICU patients: S. aureus and Pseudomonas spp. Medimmune. 2014. Gaithersburg, MD.
44. Assessing local transmission of Ebola virus in Liberia. Imperial College. 2014. London, UK.
45. Spatial dynamics of dengue and vaccine models. Royal Society. 2014. London, UK.
46. Spatial scales of influenza immunity: Results from the Fluscape project. RAPIDD Group. 2015. Washington, DC.
47. Prediction of dengue incidence in Thailand. Disease Forecasting Group. White House. 2015. Washington, DC.
48. Temporal variation in dengue case numbers and relation to climate and using age to map hazards of infection. WHO Dengue Global Burden Meeting. 2015. Geneva, Switzerland.
49. Immunological landscapes of influenza in China. NIH RAPIDD Meeting on Landscape theory in infectious disease dynamics. September, 2015. Bethesda, MD.
50. Hospital acquired infections among ICU and individuals undergoing Surgery in 6 Hospital systems: S. aureus and Pseudomonas spp. Derek Cummings, Rebecca Pierce, Eili Klein, and Trish Perl. Medimmune. October, 2015. Rockville, MD.
51. Temporal variation in dengue case numbers and relation to climate and using age to map hazards of infection. World Health Organization. Dec. 2015. Geneva, Switzerland.
52. Potential opportunities and perils of dengue vaccines. EpiCentre. June 2016. Paris, France.
53. Estimation of transmission processes using data augmentation. Institut Pasteur. Seminar. June 2016. Paris, France.
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54. Interactions of dengue viruses at multiple spatial and temporal scales. Harvard School of Public Health. February, 2016. Cambridge, MA. 55. An engineer’s experience in epidemiology. Plenary Speaker. Johns Hopkins Bloomberg School of Public Health Department of Environmental Health and Engineering Inaugural Research Retreat. Jan. 2017. Baltimore, MD. 56. Comparative modelling of dengue vaccine impact and Global estimates of the dengue transmissibility and seropositivity. WHO Immunization and vaccines related implementation research-Advisory Committee meeting. 2017. Annecy, France. 57. Spatial dynamics of dengue transmission. University of Florida Emerging Pathogens Institute External Advisory Committee Meeting. 2017. Gainesville, FL. 58. Characterizing the genetic and antigenic diversity of dengue at multiple spatial and temporal scales. University of Florida Veterinary Medicine Seminar. 2017. Gainesville, FL.
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CURRICULUM VITAE

DEREK A. T. CUMMINGS

TEACHING

PART II

Advisees

Current Advisees

Post-doctoral Leah Katzelnick Rebecca Borchering Bingyi Yang Alex Kirpich Bernardo Garcia-Carreras Diana Rojas-Alvarez

Biology/joint with UC Berkeley Biology Biology Biology Biology Biology/joint with UF Biostats

2016-present 2017-present 2017-present 2017-present 2017-present 2017-present

PhD Angkana Huang Diana Rojas-Araya

Biology Entomology

2017-present 2017-present

Undergraduate (undergraduates doing research with me)

Carlos Moreno

Applied Physiology and Kinesiology

Silvio Martinez-Daniel

Biomedical Engineering

Francesca Maurici

Biology

Chastity Perry

Biology

2015-present 2017-present 2016-2017 2017

Past Advisees

Post-doctoral

Hannah Clapham Current Position: Mathematical Epidemiologist Oxford University Clinical Research Unit

2013-2016

Henrik Salje Current Position: Faculty, Institut Pasteur

2014-2016

Luis Mier-y-Teran-Romero Current Position: US CDC Staff Scientist

2010-2014

Isabel Rodriguez-Barraquer

2012-2014

Current Position: Assistant Professor, University of California San Francisco

Kaitlin Rainwater-Lovett

2012-2013

Current Position: Research Associate, Johns Hopkins School of Medicine

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Nicholas Reich

2010-2011

Current Position: Associate Professor, University of Massachusetts, Biostatistics

Justin Lessler

2008-2011

Current position: Associate Professor, Johns Hopkins Bloomberg School of Public Health

Carl Laird

2007-2008

Current Position: Associate Professor, Texas A&M University, Department of Chemical Engineering

PhD

Stephanie Cinkovich

Biology

2015-2018

Thesis title:

The role of host composition and asymptomatic infection on the transmission dynamics of zoonotic

diseases

Jacob Ball

Epidemiology

2015-2018

(co with Xinguang Chen)

Thesis title:

Epidemiological models of infectious diseases for clinical and public health decision support

Talia Quandelacy

Epidemiology

Thesis title:

Characterizing micro-scale transmission dynamics of

influenza

2013-2017

Henrik Salje

Epidemiology

2009-2014

Thesis title:

Insights into the microscale spatial dynamics of dengue and chikungunya in Southeast Asia

Andrew Azman

Epidemiology

(co with Justin Lessler)

Thesis title: Heterogeneities in Cholera Transmission

2009-2014

Ben Althouse

Epidemiology

2009-2013

Thesis title: Mechanistic Modeling of Sylvatic Arboviruses in Senegal

Su-Hsun Liu

Epidemiology

2008-2012

Thesis title: Detectable Human Papillomavirus DNA: Prevalent vs. Incident Infection

Isabel Rodriguez-Barraquer Epidemiology

2007-2012

Thesis title: The Shifting Epidemiology Of Dengue: Insight From Serological Surveys

Justin Lessler

Epidemiology

2004-2008

Thesis title: Detection and characterization of respiratory pathogens in institutions

Masters

Jordan Johnson

MS in Epidemiology

2013-2015

Thesis title: Co-infections with multiple respiratory viruses in children in 9 Pittsburgh area schools in the

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winter of 2012-2013

Jacob Carey

MS in Epidemiology

2014-2016

Quantifying proximal contacts between school children during school, outside of school and during

school closures

Yanjie Huang

MS in Epidemiology

2013-2014

Thesis title: Quantifying Human Mobility Using The Longest Disease Traveled

Rome Buathong

MS in Tropical Medicine

2010-2014

Royal Tropical Institute, Amsterdam, Netherlands

Thesis title: Risk and protective factors for primary and secondary dengue infections among school-aged

children in Meuang district, Rayong province, Thailand

Madhura Rane

MS in Epidemiology

2012-2013

Socioeconomic determinants of mortality and disease transmission at census tract level during the 1918

H1N1 Influenza pandemic in Chicago

Katrina Mott

MS in Epidemiology

2010-2012

The Effect Of Age And Syndrome On Serotype Prevalence In Invasive Pneumococcal Disease: A Sub-

Analysis Of The Pneumococcal Global Serotype Project

Paul Maurizio MS in Molecular Microbiology and Immunology 2009-2011 Thesis Title: Detection And Vertical Transmission Of Culex Flavivirus In Culex Quinquefasciatus (Diptera: Culicidae) Mosquitoes From Zambia, Africa

Ben Althouse

MS in Biostatistics

2009-2010

Thesis Title: A Multi-Host Multi-Vector SIR Model of Dengue Fever in Senegal

Ripa Chakravorty

MS in Epidemiology

Thesis Title: Modeling the incubation period of Escherichia coli

2009-2010

Jon Benenson

MS in Biostatistics

2008-2010

Thesis Title: Susceptible reconstruction and serotype specific estimates of seasonality of transmission of

dengue viruses in Thailand using a Time-Series-Susceptible-Infected-Recovered model

Jodi Udd

MPH

2009-2010

Eileen Obe

MPH

2009-2010

Yih Yng Ng

MPH

2008-2009

Thesis title: Prediction of Influenza-Like Illness trends in Singapore using Internet search data

Hannah Lee

MPH

2008-2009

Katherine Lin

MHS in Epidemiology

2007-2008

Thesis Title: A Method to Geocode Rural Addresses and Post Office Boxes: Application to a Study of

Drinking Water Nitrate Exposure and Cancer Incidence

Duza Baba,

MHS in International Health

2006

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Heidi Hallman

MHS in International Health

2006

Kristin Kelling

MHS in International Health

2005

Alex Ruan

Undergraduate in Public Health

2012

Preliminary Oral Participation (*alternate)

Departmental

Name

Date

Talia Quandelacy Rebecca Pierce* Andrew Azman Henrik Salje Isabel Rodriguez-Barraquer Benjamin Althouse Su-Hsun Liu Amanda Latimore Bridget Ambrose

PhD 2015 PhD 2014 PhD 2012 PhD 2011 PhD 2011 PhD 2010 PhD 2009 PhD 2007 PhD 2006

Schoolwide

Sheldon Waugh Punam Amratia Stephanie Cinkovich Jacob Ball Talia Quandelacy Mariam Fofana Holly Schuh Kristen Little Huitong Qui Mufaro Kanyangarara Ian Craig Jessica Atwell Ricardo Castillo Andrew Azman Benjamin Althouse Genevieve Wojcik Michelle Mergier* Alison Turnbull* Emily Gurley Henrik Salje Su-Hsun Liu Amanda Latimore James Stark Isabel Rodriguez-Barraquer Nikolas Wada* Adrienne Shapiro Bridget Ambrose Willem van Panhuis

PhD Epidemiology

2017

PhD Forest Resources and Conservation 2017

PhD Biology

2017

PhD Epidemiology

2016

PhD Epidemiology

2015

PhD Epidemiology

2014

PhD International Health

2014

PhD Epidemiology

2014

PhD Biostatistics

2014

PhD International Health

2014

PhD International Health

2013

PhD International Health

2013

PhD Epidemiology

2012

PhD Epidemiology

2012

PhD Epidemiology

2012

PhD Epidemiology

2011

PhD International Health

2011

PhD Epidemiology

2011

PhD Epidemiology

2011

PhD Epidemiology

2011

PhD Epidemiology

2011

PhD Epidemiology

2010

PhD Epidemiology, University of Pittsburgh 2010

PhD Epidemiology

2010

PhD Epidemiology

2010

PhD Epidemiology

2009

PhD Epidemiology

2008

PhD International Health

2008

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Nicholas Reich Kathryn Anderson Tassanee Silawan

PhD Biostatistics PhD Epidemiology, Emory University PhD Epidemiology, Mahidol University

2008 2008 2007

Final Oral Participation

Henrik Salje Andrew Azman Kara Randolph* Ben Althouse Hannah Clapham
Melinda Munos* Alison Liu Isabel Rodriguez-Barraquer Kaitlin Rainwater Lovett Johns Ayers* Kathryn Anderson James Stark Nicholas Reich Emily Henkle* Willem van Panhuis Justin Lessler Michael Johansson Christina Schumaker David Dowdy Tassanee Silawan

PhD Epidemiology

2014

PhD Epidemiology

2014

PhD Epidemiology

2014

PhD Epidemiology

2013

PhD Infectious Disease Epidemiology

2013

Imperial College

PhD International Health

2012

PhD Epidemiology

2012

PhD Epidemiology

2012

PhD Epidemiology

2012

PhD Health, Behavior and Society

2011

PhD Epidemiology, Emory University

2010

PhD Epidemiology, University of Pittsburgh 2010

PhD Biostatistics

2010

PhD Epidemiology

2010

PhD International Health

2009

PhD Epidemiology

2008

PhD Molecular Microbiology & Immunology2008

PhD Epidemiology

2008

PhD Epidemiology

2008

PhD Epidemiology, Mahidol University 2008

Thesis Committee Participation

Mark Kartzinel (UF)
Punam Amratia (UF) Jacob Ball (UF)
Stephanie Cinkovich (UF)
Andrew Azman (JHU) Mary Grabowski (JHU)
Ben Althouse (JHU) Henrik Salje (JHU)
Isabel Rodriguez-Barraquer
Su-Hsun Liu (JHU)
Kaitlin Lovett (JHU)

The impact of the larval environment on post-emergence fitness of aedes aegypti Fine-scale mapping of malaria in Ghana: use of Bayesian models The ecology and epidemiology of respiratory diseases in high-risk populations The Role of Host Composition and Asymptomatic Infection on the Transmission Dynamics of Zoonotic Diseases Heterogeneities in Cholera Transmission Patterns and predictors of the epidemiological and evolutionary dynamics of HIV-1 infection in Rakai, Uganda Studies of Sylvatic Dengue in Senegal Combining surveillance data with genetic analysis in the characterization of spatiotemporal clustering of dengue cases in Bangkok Towards a better estimation of the force of infection and basic reproductive number of dengue virus Mathematical modeling to inform likelihood of second peak HPV prevalence in older women The Impact of Immune Reconstitution and Revaccination on Measles Immunity in HIV-infected Zambian Children initiating Antiretroviral Therapy

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Genevieve Wojcik (JHU)
Emily Gurley (JHU) Justin Lessler (JHU) Willem van Panhuis (JHU)
Christina Schumacher (JHU) Nicholas Reich (JHU) Michael Johansson (JHU) David Dowdy (JHU)

A Genome-Wide Association Study of Oral Polio Vaccine Failure in Infants from Bangladesh (MAL-ED Study):Gene-, and Pathway-Level Analyses Exposure to Indoor Air Pollution and Pneumonia in Dhaka, Bangladesh The Detection and Characterization of Respiratory Virus Transmission in Institutions Dynamics of Dengue Antibodies : Transplacental Transfer, Decline after Birth and the Serotype Specific Response to Infection among Infants and Children in Thailand Identifying, Chracterizing and Predicting the Role of Core Groups in Syphilis Epidemics Statistical Methods for Incomplete Data from Infectious Disease Outbreaks The Influence of Climate on Dengue Transmission in Puerto Rico Impact and Cost-Effectiveness of Improved Diagnostics for Tuberculosis in Developing Countries

Classroom Instruction

2017 Principal Instructor (and course developer) Department of Biology University of Florida Outbreaks Enrollment: 25 I developed a course called “Outbreaks” ZOO4926 which is an undergraduate course that teaches quantitative concepts in characterizing epidemics and dynamics of emerging infectious diseases in multiple hosts including humans, animals and plants. Development included creation of lectures, 5 labs (in class quantitative assignments), final projects and final exam.

2009-2015 Principal Instructor (and course developer) (with Dr. William Moss and Dr. Justin Lessler) Department of Epidemiology Bloomberg School of Public Health Johns Hopkins University Concepts and Methods in Infectious Disease Epidemiology Enrollment: 10, 35, 35, 35, 32, 27
2007-2008, 2009-2015 Principal Instructor (and course developer) Department of Epidemiology Bloomberg School of Public Health Johns Hopkins University Infectious Disease Dynamics: Theoretical and Computational Approaches Enrollment: 18, 25, 20, 30, 20, 22, 24, 20
2014 Principal Instructor (with Dr. Kenrad Nelson, Dr. Shruti Mehta, and Dr. Isabel Rodriguez-Barraquer) Department of Epidemiology Bloomberg School of Public Health

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Johns Hopkins University Epidemiology of Infectious Diseases Enrollment: 42
2011 Guest Lecturer “Modeling and prediction of DHF”, “Models of dengue transmission and dengue vaccines” PAHO/Instituto Pedro Kouri Dengue Institute Havana, Cuba Enrollment: 210
2010 Principal Instructor (and course developer) Infectious Disease Dynamics: Theoretical and Computational Approaches Johns Hopkins Bloomberg School of Public Health Fall Institute Barcelona, Spain Enrollment: 20
2007-2013 Instructor Department of Epidemiology Bloomberg School of Public Health Johns Hopkins University Epidemiologic Methods 3 Enrollment: 220 on average in class total each year, 60 in lab section each year.
2007-2013 Faculty Advisor Department of Epidemiology Bloomberg School of Public Health Johns Hopkins University Modeling of Spatial and Temporal Disease Epidemiology Forum-Student Group
2005-2006 Principal Instructor (and course developer) Department of International Health Bloomberg School of Public Health Johns Hopkins University Infectious Disease Dynamics: Theoretical and Computational Approaches Enrollment: 19, 15
2005-2013 (12 separate lectures) Guest Lecturer “Introduction to mathematical modeling of infectious diseases”, “Influenza" Department of Epidemiology Bloomberg School of Public Health Johns Hopkins University Infectious Disease Epidemiology
2012-2014 (5 separate lectures) Guest Lecturer “MERS Coronavirus”, “Dengue", “SARS Coronavirus”
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Department of Epidemiology Bloomberg School of Public Health Johns Hopkins University Emerging Infectious Disease
2008-2010 Guest Lecturer “Host demographics and infectious disease dynamics” Department of Molecular Microbiology and Immunology Bloomberg School of Public Health Johns Hopkins University Ecology of Infectious Disease
2007-2008 Co-organizer Departments of Epidemiology and Biostatistics Bloomberg School of Public Health Johns Hopkins University Epi/Biostats Working Group on Infectious Disease
2014, 2015 Guest Lecturer “Infectious Disease Epidemiology” Global Institute of Public Health New York University
2006-2008 Guest Lecturer University of Pittsburgh Graduate School of Public Health Department of Epidemiology Infectious Disease Epidemiology
2012 Guest Lecturer “A Practical Short Course in Infectious Disease Modeling” Harvard University/Mahidol University Bangkok
2006-2014 Guest Lecturer “Models of infectious disease dynamics” United States Uniformed Services University Bethesda, MD Infectious Disease Epidemiology
2006-2011 Instructor Field Epidemiology Training Program Thailand Ministry of Public Health Bangkok, Thailand Infectious Disease Dynamics
2003-2004 Guest Lecturer
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Department of Earth and Planetary Sciences Zanvyl Krieger School of Arts and Sciences Johns Hopkins University Climate Change and Global Health

2001 Tutorial Instructor GEOMED 2001 Université Pierre et Marie Curie, Paris Time-Series Analysis, Pre-conference Tutorial

1996 Teaching Assistant Inorganic Chemistry, Brown University

RESEARCH GRANT PARTICIPATION

Active Support

Linking antigenic and genetic variation of dengue to individual and population risk

02/01/15-1/31/2020, NIH R01 Total award: $3,800,000

Principal Investigator: Derek Cummings

Primary Goal:

Characterize the genetic and antigenic variability of dengue viruses circulating

over the last twenty years using a large repository of viral samples and build

population models of ecological interactions between dengue viruses and its

impact on human health.

Southeast Regional Center of Excellence in Vector-Borne Diseases: the Gateway Program.

12/31/2016-12/30/2021, US Centers for Disease Control Total award: $9,999,628.

Principal Investigator: co-PI’s Derek Cummings, Greg Glass, John Beier (University of Miami), Tom

Unnasch (University of South Florida), Rhoel Dinglasan, Program Director.

Primary Goal:

Conduct research to enhance our understanding of the transmission dynamics of

arthropod-borne disease transmission in order to effectively respond to detect and

control outbreaks.

Monitoring cause-specific school absences to estimate influenza transmission in Western PA

09/01/13-08/31/16, CDC U01 Total award: $1,500,000

Principal Investigator: Derek Cummings

Primary Goal:

To refine surveillance in communities for influenza and other respiratory disease

incidence using cause-specific absenteeism in school-children in western

Pennsylvania.

Role:

Principal Investigator

Methods for Reducing Spatial Uncertainty and Bias in Disease Surveillance

02/01/2013-01/31/2018, NIH R01 NIAID Total award to UF subcontract: $226,469

Principal Investigator: Justin Lessler

The goal of this research is to develop methods that can improve forecasting and current estimates of the

incidence of dengue and other infectious diseases. The project uses multiple approaches including

mechanistic models and models that traverse multiple temporal and spatial scales to produce estimates of

incidence.

Role:

Investigator

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Influenza Immunity and Survival in Aging Populations

09/01/15-08/31/2017, US NIH R56 Total award to UF subcontract: $26,395

Principal Investigator: Justin Lessler, Derek Cummings (local PI)

Primary Goal:

This study aims to understand how and why this increase in antibody titers

occurs, and what role survival effects, patterns of infection and the biology of the immune response over

multiple infections play in its development.

Role:

Investigator

University of Pittsburgh MIDAS Center of Excellence: Data and Statistical Inference Project

07/01/14-08/31/19, NIH U01 Total award to UF subcontract: $217,409

Principal Investigators: Derek Cummings (local PI), Donald Burke (overall PI)

Primary Goal:

Computational modeling for science and policy is driven by availability of data

to estimate model parameters. Insights for disease transmission dynamics are

derived from statistical inference using these models. This project will capitalize

on new opportunities provided by large scale genetic and epidemiological data

created during MIDAS-II to study infectious disease transmission dynamics at

the micro- and macro level using innovative statistical approaches and parameter

estimation methods.

Role:

Investigator

Modeling interactions between HIV interventions in key populations in India

7/1/2015-6/30/2017, US NIH R21 Total award: $448,573

Principal Investigators: Derek Cummings

Primary Goal:

The proposed study will use a novel modeling approach to help to disentangle

multiple dynamic effects of combination interventions in order to inform future

large-scale implementation of such combination interventions.

Completed Support

Staphylococcus aureus and Pseudomonas Hospital Acquired Infections

01/01/13-12/31/16, MedImmune

Principal Investigator: Derek Cummings (co) with Trish Perl

Funding Level:

0.6 months

Primary Goal:

Identify risk factors for hospital acquired infections of staphylococcus aureus and

pseudomonas in 7 hospital centers and assist in trial design for new intervention

products.

Role:

Principal Investigator

From Ebola Response to Sustainable Public Health Systems in Liberia

7/1/2015-6/30/2016, US CDC

Principal Investigator: David Peters, Derek Cummings (co-PI’s)

Funding Level:

2.4 calendar months

Primary Goal:

The goal of this project is to support the Ministry of Health of Liberia in building

an integrated disease surveillance system to conduct surveillance for a number of

infectious diseases as well as build general capacity to analyze infectious disease

surveillance data.

Role:

co-Principal Investigator

Inference for interacting pathogens with mechanistic and phenomenological models

38

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09/01/14-08/31/16, NIH

Principal Investigators: Derek Cummings (local PI), Nick Reich (overall PI)

Funding Level:

1.56 calendar months

Primary Goal:

Develop inference framework to estimate interactions of multiple pathogens that

co-circulate and induce immune responses that might create competitive and/or

enhancing relationships.

Role:

Investigator

Modeling of infectious disease; A study of repeat influenza vaccination, and how population based

immunity impacts the genetic makeup of dengue viruses.

04/01/14-9/30/2016, WRAIR

Principal Investigator: Derek Cummings

Funding Level:

0.12 calendar months

Primary Goal:

Two part project to determine the impact of successive influenza vaccine on

immunity and risk and 2) dengue population immunity and how this shapes the

dengue viral evolution.

Role:

Principal Investigator

09/01/10-08/31/15, CDC/VA

Principal Investigators: Trish Perl, Lew Radonovich (co-PI’s)

Funding Level:

1.2 calendar months

Primary Goal:

The goal of this research is to compare the efficacy of surgical masks to N95

respirators in protecting health care workers from respiratory viruses including

influenza.

Role:

Investigator

Analytic Support for the Ebola Outbreaks and Strengthening Primary Health Care in West Africa and

Democratic Republic of Congo

10/15/14-01/31/15, Unicef

Principal Investigators: David Peters (PI)

Funding Level:

0.12 calendar months

Primary Goal:

The goal of this project is to conduct analyses and simulations to support

UNICEF’s response to the Ebola virus outbreak in West Africa.

Role:

Investigator

VMI II: Application of Computational Models to Guide and Evaluate Global

07/01/13-06/30/15, University of Pittsburgh, Bill and Melinda Gates Foundation

Principal Investigator: Derek Cummings

Funding Level:

0.60 calendar months

Primary Goal:

To use theoretical models to evaluate multiple vaccination strategies and vaccine

candidates to control dengue and other vector-borne diseases

Role:

Principal Investigator

Quantifying Contact Rates and Mixing Patterns in School Aged Children

08/31/11 - 08/30/14, CDC

Principal Investigator: Derek Cummings (co) with Shanta Zimmer

Funding Level:

1.2 calendar months

Primary Goal:

The goal of this work is to use multiple methods to quantify the contacts that

school children make that could potentially transmit influenza including survey,

39

Case 4:20-cv-00069-RSB-CLR Document 4-4 Filed 04/08/20 Page 50 of 54

Role:

proximity detectors and GPS devices in order to evaluate each of these methods. We will also link measures of social contact to the risk of acquisition of influenza. co-Principal Investigator

Immune Landscapes of Human Influenza in Households, Towns and Cities in Southern China

10/01/08-8/31/14, NIH

Principal Investigator: Derek Cummings

Funding Level:

1.8 calendar months

Primary Goal:

The goal of this work is to characterize immunological profiles to human

influenza in space and time among individuals living in Guangzhou province,

China, and to build computational models that capture the transmission dynamics

that could create the specific distributions observed.

Role:

Principal Investigator

Career Award at the Scientific Interface

07/01/07 - 07/31/15, Burroughs Wellcome

Principal Investigator: Derek Cummings

Funding Level:

0.12 calendar months

Primary Goal:

To study natural and vaccine-induced immunity and spatial-temporal

dynamics of epidemic dengue

Role:

Principal Investigator

Using Viral Sequences to Characterize the Micro-scale Dispersal Dynamics of Dengue in Bangkok

2/1/2012-12/31/2014, Johns Hopkins Center for Global Health

Principal Investigator: Derek Cummings

Funding level:

$50,000 research funds (0 months)

Primary Goal:

Describe the micro-scale transmission of dengue in an urban environment using

genetic and geographic information on the occurrence of cases.

Role:

Principal Investigator

Computational Models of Infectious Disease Threats Center for Excellence

04/01/09 – 04/01/14, NIH-NIGMS

Principal Investigator: Don Burke

Funding Level:

3.0 calendar months

Primary Goal:

Integrate the most advanced and powerful techniques of epidemiological data

analysis with those of computer simulation to produce a unified computational

epidemiology.

Role:

Investigator

Vaccine Modeling Initiative

04/1/08-04/31/13, Bill and Melinda Gates Foundation

Principal Investigator: Don Burke

Funding Level:

1.0 calendar months

Primary Goal:

Evaluation of candidate vaccine technologies using computational models.

Role:

Investigator

Temporal and Spatial Dynamics of Sylvatic Arbovirus Transmission and Emergence

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Case 4:20-cv-00069-RSB-CLR Document 4-4 Filed 04/08/20 Page 51 of 54

10/1/08-09/31/13, NIH

Principal Investigator: Scott Weaver

Funding Level:

1.8 calendar months

Primary Goal:

The goal of this project is to study the dynamics of transmission of dengue and

chikungunya virus among non-human primate species in Senegal and determine

which species support transmission of these viruses endemically and which ones

appear to be only spillover species.

Role:

Investigator

Multi-Scale Modeling of Infectious Diseases in Fluctuating Environments

09/01/09 – 08/31/13, NIH

Principal Investigator: Derek Cummings, Lora Billings (co)

Funding Level:

0.6 calendar months

Primary Goal:

The objective of this proposal is to develop new mathematical models of

infectious disease transmission that effectively, capture the impact of

stochasticity on dynamics and lead to more effective control. The group will

study the dynamics of disease spread in fluctuating environments modeled at

various population scales.

Role:

Co-Principal Investigator

Preparedness and Catastrophic Event Response (PACER)

06/01/09 – 05/31/12, US department of Homeland Security

Principal Investigator: Gabe Kelen

Funding Level:

0.12 calendar months

Primary Goal:

PACER is a consortium of research institutions studying how the nation can best

prepare for and respond to potential large-scale incidents and disasters. My work

on this project is on model development for pandemic influenza models

particularly, methods for parameter estimation for individual based simulations.

Role:

Investigator

Immune Reconstitution of HIV-1 Infected Zambian Children Initiating Antiretroviral Therapy 03/01/07 –

02/28/12, NIH

Principal Investigator: William Moss

Funding Level:

0.6 calendar months

Primary Goal:

This project will study measles and measles vaccination in HIV-1-infected

children in Lusaka, Zambia to characterize measles virus-specific immune

reconstitution and immunologic memory in Zambian children initiating ART.

Role:

Investigator

Planning for Avian Influenza Outbreaks and Potential Pandemics

9/14/05 – 3/31/10, NIH-Fogarty International Center

Principal Investigator: Don Burke

Funding Level:

0.6 calendar months

Primary Goal:

Develop capacity among epidemiologists at the Thai Ministry of Public Health

to utilize new theoretical and computational tools in concert with

traditional epidemiologic approaches to address issues surrounding avian

influenza and potential influenza pandemics.

Role:

Investigator

Computational Models of Infectious Disease Threats

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04/01/04 – 04/01/09, NIH-NIGMS

Principal Investigator: Don Burke

Funding Level:

4.2 calendar months

Primary Goal:

Integrate the most advanced and powerful techniques of epidemiological data

analysis with those of computer simulation to produce a unified computational

epidemiology.

Role:

Program Coordinator and Investigator

Pittsburgh Influenza Prevention Program

10/01/06 - 09/31/08, CDC

Principal Investigator: Don Burke

Funding Level:

0.6 calendar months

Primary Goal:

Study the transmission dynamics of influenza in Pittsburgh elementary

schools and conduct trials of non-pharmaceutical interventions targeting

influenza transmission.

Role:

Investigator

Harmonic Decomposition and Compartmental Models in the Analysis of Epidemiologic and Climatic

Data: An Analysis of Dengue in Southeast Asia

07/01/04 - 06/31/07, NOAA

Principal Investigator: Don Burke

Funding Level:

2.4 calendar months

Primary Goal:

Apply methods developed under previous funding cycle to data from

Southeast Asia on dengue hemorrhagic fever.

Role:

Investigator

Ethical Issues in Influenza Pandemic Preparedness and Response

04/01/06 - 10/01/06, Rockefeller Foundation

Principal Investigators: Ruth Faden and Ruth Karron (co-PI’s)

Funding Level:

0.12 calendar months

Primary Goal:

Identify current and potential responses to the threat of pandemic

influenza that profoundly affect the world’s disadvantaged and to

undertake concrete action to prevent or at least to mitigate those responses

that are the most unjust. Simulate the impact of pandemic mitigation

responses in resource poor settings.

Role:

Investigator

Computational Modeling of Vaccination Strategies against Smallpox

08/01/02 - 07/31/04, Alfred P. Sloan Foundation

Principal Investigator: Joshua Epstein

Funding Level:

2.4 calendar months

Primary Goal:

Develop computer simulations of the introduction and spread of a bio-

terrorist agent such as smallpox in human populations, and evaluate

possible response strategies.

Role:

Investigator

Research to Guide Allocation of Public Resources in the Event of an Intentional Introduction of Smallpox

12/01/02 – 05/31/04, FIC / NIH / DHHS

Principal Investigator: Don Burke

Funding Level:

2.4 calendar months

Primary Goal:

Develop, evaluate, and utilize computational models of smallpox

42

Case 4:20-cv-00069-RSB-CLR Document 4-4 Filed 04/08/20 Page 53 of 54

Role:

introduction into the USA, and of public health strategies to contain smallpox epidemics. Investigator

Harmonic Deconstruction in the Analysis of Epidemiologic and Climatic Data.

08/01/02 – 07/31/03, NOAA

Principal Investigator: Don Burke

Funding Level:

2.4 calendar months

Primary Goal:

Develop and evaluate new computational methods for correlating dengue

epidemiologic data and weather data, such as wavelet transforms and

Empiric Mode Decomposition.

Role:

Investigator

ACADEMIC SERVICE
Department of Biology
Advisory Committee Strategic Planning Committee
Department of Epidemiology
Lead, Department of Epidemiology Self-study Chair of Faculty Executive Committee Faculty Executive Committee Infectious Disease Journal Club, Faculty Coordinator Admissions and Credentialing Committee, Member
Department of International Health
Steering Committee, Member
School-wide
Technology Transfer Committee, Member

2015-present 2016-present
2013-present 2013-present 2012-present 2009-2012 2009-2012
2005-2006
2010-2015

ADDITIONAL INFORMATION
Personal statement of research and research objectives
I am interested in developing effective strategies for the control infectious diseases. My approach in doing this is to develop temporally or spatially targeted administration of vaccines or other interventions to produce the largest reduction in morbidity and mortality. I utilize a mix of field study and theoretical models of infectious disease in order to understand the transmission dynamics of dengue, influenza, measles, hepatitis C and chikungunya and to estimate the impact of specific interventions.
Keywords
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Case 4:20-cv-00069-RSB-CLR Document 4-4 Filed 04/08/20 Page 54 of 54 Infectious disease, dynamics, influenza, dengue, measles, hepatitis C, ebola, social dynamics, vaccinepreventable, mathematical models, ecology
44

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EXHIBIT 3

Case 4:20-cv-00069-RSB-CLR Document 4-5 Filed 04/08/20 Page 2 of 30
DECLARATION OF AMY ZEIDAN, MD I, Amy J. Zeidan, MD, hereby declare under the penalty of perjury pursuant to 28 U.S.C. § 1746:
1. I make this declaration based on my personal knowledge except where I have indicated otherwise. If called as a witness, I could and would testify competently and truthfully to these matters.
2. I am an assistant professor in the Department of Emergency Medicine at Emory University School of Medicine in Atlanta, Georgia. I am also an attending physician in the Emergency Department at Grady Hospital in Atlanta. I have held these positions since July 2019. Previously, I was a clinical instructor in the Department of Emergency Medicine at the University of Kentucky. I am Board-Certified in Emergency Medicine.
3. I received my MD at George Washington University and completed my residency in Emergency Medicine at the University of Pennsylvania, where I was chief resident from 2017-2018. I completed an Emergency Ultrasound Fellowship at the University of Kentucky.
4. In addition to my practice as an emergency room physician and my professorship at Emory Medical School, I completed training on Forensic Medical Evaluations for Asylum Seekers through Physicians for Human Rights in 2015 and 2016. I was the Executive Director of Education at the Philadelphia Human Rights
1

Case 4:20-cv-00069-RSB-CLR Document 4-5 Filed 04/08/20 Page 3 of 30
Clinic from 2016-2018 and am currently co-Director of the Human Rights Clinic at Emory. I have conducted over 50 evaluations of asylum seekers throughout Pennsylvania and Georgia, including individuals detained in Stewart ICE Detention Center in Lumpkin, Georgia (“Stewart”). As part of that work, I have visited Stewart to evaluate individuals and reviewed medical records for nine individuals, including records of medical care provided during their time in ICE detention. I have published on best practices of forensic medical evaluations and my research focuses on barriers to acute care for refugees, asylees, and other immigrant populations.
5. As an Emergency Medicine physician at Grady Hospital, I evaluate and treat patients with COVID-19 on a daily basis. Since early March 2020 when the first COVID-19 cases were identified in Metro Atlanta, I estimate that I have treated over 50 patients who screened positive for symptoms consistent with COVID-19. I have treated patients with varying severity of symptoms, ranging from mild symptoms to severe symptoms requiring emergent intubation and prolonged stays in the intensive care unit. While many critically ill patients are older than 65 or people with multiple comorbidities including underlying lung disease and/or immunocompromised, I have also treated healthy patients as young as their late 20’s requiring intubation and admission to the Intensive Care Unit (ICU).
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6. Based on my experience treating COVID-19 patients, and daily research and review of emerging and rapidly evolving literature, it is my opinion that ICE detention facilities in Georgia create conditions ripe for an alarming and rapid spread of COVID-19. Based on my review of ICE’s Guidance on COVID19,1 it is my opinion that the measures described to mitigate the spread of COVID19 in detention centers are inadequate to protect detained individuals for the reasons outlined below. When COVID-19 disease spread occurs within ICE detention centers, there are few options to contain the spread. The first concern is that many individuals with COVID-19 may be asymptomatic but nonetheless contagious. Similarly, they may have very mild symptoms or symptoms that are less common with COVID-19, including gastrointestinal symptoms like diarrhea. Symptoms can present anywhere from 2 to 14 days after exposure/infection. As such, they can expose other detained individuals, as well as staff of the facility, to the virus before anyone is aware of their symptoms.
7. In fact, a number of patients I have treated in the Emergency Department presented with non-COVID-19 related symptoms but were found to have imaging findings (chest X-ray or CT scans of their chests) highly consistent with COVID-19. Others have presented with gastrointestinal symptoms only,
1 https://www.ice.gov/coronavirus 3

Case 4:20-cv-00069-RSB-CLR Document 4-5 Filed 04/08/20 Page 5 of 30
including vomiting or diarrhea, rather than the classic symptoms of fever and respiratory symptoms. A small percentage of patients have presented with hypoxia requiring oxygen/intubation despite having no respiratory symptoms. Only half of the patients with COVID-19 had a fever at the time of admission. Thus, assessing individuals who are detained for fever and respiratory symptoms only will exclude many individuals who have COVID-19. Finally, as community spread is highly prevalent now, assessing individuals for travel to high risk areas is no longer as helpful or clinically relevant.
8. From my work with individuals detained by ICE, I am aware that many detained immigrants with medical conditions are placed in medical isolation, which is equivalent to solitary confinement. In the context of COVID-19, this practice is unsafe. Placing an individual with significant medical needs in isolation exacerbates underlying medical conditions and places them at additional risk of being unable to call for help. This is an unacceptable and potentially deadly form of quarantine given the rapid and severe progression of COVID-19 in affected individuals. I have treated COVID-19 patients who have gone from stable, not requiring oxygen, to needing intubation and subsequent care in an ICU on a ventilator within 24 hours. Individuals with concerning or confirmed symptoms must be watched closely, with adequate access to medical care that is simply not available in ICE detention facilities.
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9. Moreover, the disease can progress over a period of 14 days, and patients can have symptoms for more than 14 days. This requires close observation and safe isolation for over 14 days in many cases. Safe isolation in this case would require continuous monitoring of an individual in isolation with vital sign monitoring every 2-4 hours depending on their condition, consisting of evaluation of temperature, blood pressure, heart rate, and oxygen levels at these intervals. Conditions of the room would consist of continuous access to hydration, three nutritionally adequate meals, and access to medications for specific symptoms (ex. Tylenol for temperature control and analgesia). Most detention facilities do not have the space or staff to safely isolate all patients with symptoms for this period of time.
10. I am also concerned that the Georgia ICE detention centers lack sufficient Personal Protective Equipment (PPE) to adequately protect personnel against the spread of COVID-19 and contain the spread of the disease. Indeed, it has been difficult for the top trauma centers and busiest hospitals in the state— including Grady Hospital—to obtain sufficient supplies, as there are national shortages. Appropriate protection requires all individuals in contact with suspected COVID-19 patients to be trained in appropriate donning and doffing of PPE. When I am caring for COVID-19 patients, for my safety, I have been instructed to wear a head covering, N95 mask with a surgical mask covering the N95 mask, goggles, a
5

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gown, shoe coverings, and two sets of gloves. I have gone through specific training on how to apply and remove PPE to avoid contamination of other sources. All individuals working with suspected COVID-19 individuals should be following this protocol to protect themselves and others.
11. It does not appear that ICE facilities are following similar protocols and are thus placing their employees and all detained individuals in danger. In addition, all employees and detained individuals should have regular access to appropriate hygiene products, including hand sanitizer, and should follow social distancing mandates by staying at least 6 feet apart. Based on reports of conditions in the Georgia ICE detention centers, Stewart, Irwin County Detention Center (“Irwin”), and Folkston ICE Processing Center (“Folkston”), I have serious concerns about the availability of hygiene products.
12. In addition, the Georgia ICE detention centers are geographically isolated from appropriate levels of medical care. Individuals with severe diseases like COVID-19 require an intensive care unit with appropriate medical equipment and staff. Stewart is at least one hour away from a facility where this level of care could be provided—Piedmont Columbus Regional Midtown Hospital in Columbus, Georgia (40 miles from Stewart) or Phoebe Putney Memorial Hospital in Albany, Georgia (53 miles from Stewart). Notably, Phoebe Putney is currently experiencing a Coronavirus outbreak and has severe limitations in caring for
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additional COVID-19 patients. Current data indicate that 16 people have died due to COVID-19 at Phoebe Putney alone, and Albany, Georgia, has the highest per capita COVID-19 infection rate in the state. Southwest Georgia Regional Medical Center is located about 22 miles from Stewart in Cuthbert, Georgia; however, this is a critical access hospital with essentially no long term ICU beds. Critical access hospitals are generally located in rural areas where the access to nearby hospitals is extremely limited. They have fewer than 25 beds and are designed to care for patients who will require fewer than 96 hours of care; importantly, even if some have ICU-type beds, those are designed for short term treatment and do not provide capacity for the type of long term treatment required for COVID-19 patients. Critical access hospitals provide excellent quality care, but are not designed to care for critically ill patients; they are designed to stabilize and transfer critically ill patients. For reference, Grady Hospital has 961 hospital beds including approximately 60 ICU beds.
13. The nearest hospital to Irwin with ICU capabilities is Tift Regional Medical Center, approximately 18 miles away. Tift Medical Center has 181 hospital beds, including 20 ICU beds. As a regional hospital, it serves 12 counties. A coronavirus outbreak in any of these counties would overwhelm the hospital and its ICU beds, as we have seen at Phoebe Putney. Even more concerning, the nearest hospital to Folkston detention center with ICU capabilities is Southeast
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Georgia Health System in Camden with only 40 beds, including 5 ICU beds, approximately 26 miles away. Patients would likely require initial transport or transfer to Southeast Georgia Health System – Brunswick with 300 beds, including 24 ICU beds, which is about 45 miles away.
14. It cannot be overstated that critical access and regional hospitals provide high quality care to all patients. However, critical access hospitals are not designed for high volumes of sick patients. Regional hospitals do not have as many specialty services necessary to treat COVID-19 patients as urban hospitals and serve such a large number of patients that they may quickly reach capacity. A coronavirus outbreak would overwhelm these systems, and many critically ill patients would require transfer to tertiary/quaternary hospitals.
15. It is important to remember that the nature of community spread means that without appropriate measures, just one person with COVID-19 can spread the disease to an entire community. An outbreak in one of the Georgia immigration detention centers would overwhelm the capacity of local hospitals. With the worsening shortage of PPE, providers, hospital capacity, and ICU resources like ventilators, it is impossible to know when specific hospitals in Georgia will run out of any of these necessary resources. However, predictions in Georgia suggest all hospital resources will be used by April 22, 2020, and that we currently have an ICU bed shortage of 755 beds and 1,075 ventilators.
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16. Additionally, the distance and time required to transfer individuals from one of the three Georgia detention centers to any of these hospitals can be significant. First, a call is made to local/regional Emergency Medical Service (EMS) providers. An available unit must be contacted and directed to the location. Upon arrival, they must stabilize the patient and transfer them to the closest facility with appropriate resources (i.e. an ICU) that is not on diversion, meaning that they are so full that they can no longer take additional patients from ambulance crews. The CDC recommendations for transport of patients suspected of having COVID19 by EMS are appropriately robust, and aim to protect the EMS providers, the patient, and all transfers thereafter. As a result, appropriate cleaning time and protective equipment will severely increase the transfer time and limit the number of units available for transporting patients to the hospital, and between hospitals. In consideration of all of these measures, the concern is that by the time a detained individual can be transferred appropriately, it may be too late. The danger that this lengthy process presents is compounded when individuals in detention do not have immediate access to adequate medical attention.
17. I have reviewed the declarations of Jaquelinne Murillo Figueroa, Meredyth Yoon, and Alexis Ruiz, attorneys who have visited Stewart, Folkston, and Irwin, respectively. Based on the information set forth in these declarations, the current practices of these detention centers with respect to entry of legal
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visitors and for staff personal hygiene measures are inadequate to limit the spread of COVID-19. According to these declarations, legal visitors are not required to engage in recommended hygienic practices such as washing their hands or using hand sanitizer despite the risk of sharing items that might carry COVID-19, such as documents or pens, with detained individuals. Nor are legal visitors provided with or required to wear PPE. Officers at the detention center are also failing to take recommended precautions such as wearing even the bare minimum of PPE such as gloves or masks. Legal visitors and staff are congregating in close quarters with each other and with detained individuals. As community spread is our biggest threat, following appropriate CDC recommendations is paramount. Anything but strict adherence to these guidelines poses a serious threat to all individuals.
18. All three declarants report that they had to have their temperatures taken and answer some questions about exposure risk before entering the facilities. As explained above, COVID-19 can be present and transmitted even when an infected individual is asymptomatic and afebrile, and increasing community spread in the United States renders questions about travel irrelevant. These measures are unlikely to prevent transmission of the virus by a legal visitor and moreover could increase transmission. The only safe mechanism for screening individuals prior to entering a facility is through testing.
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19. In addition, I have reviewed the declaration of Laura Rivera, summarizing calls that Southern Poverty Law Center’s detainee helpline has received over the last two weeks from all three Georgia facilities and notes from her tours of Stewart and Irwin in 2018. Based on this declaration, the living conditions at Stewart and Irwin are ripe for the spread of disease. The living conditions described are typical congregate environments where detainees sleep in large groups with less than six feet of space between beds. Throughout the day, individuals detained in these facilities must congregate within six feet of each other to access various services and activities. As we know from data in other countries, the only successful mitigation strategy is to self-isolate, and socially distance at least 6 feet apart. These reported conditions will actually increase rather than decrease the spread of disease.
20. Individuals detained at all three facilities reported a lack of information about COVID-19 and how to protect themselves. Especially concerning was the reported remark of an officer at the detention center that the critical protection of social distancing does not apply in detained settings, implying that detainees and employees may be misinformed or lack appropriate information. To the contrary and as stated previously, social distancing is the most effective measure we have found to prevent the rapid spread of COVID-19; the importance of this measure does not diminish in the context of detention.
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21. According to Laura Rivera’s declaration, callers to SPLC’s helpline also reported that individuals who display well-known symptoms of COVID-19 such as a cough are returned to the congregate housing units on the same day that they are taken to receive medical attention. Understandably, almost all facilities, including detention facilities, are not designed to appropriately protect individuals during a pandemic like this. Detainees in this situation have few options other than return to normal housing, or be placed in solitary confinement. Both options are highly unsafe to the individual or community.
22. Finally, I have reviewed ICE guidance on COVID-19 detention policies dated March 27, 2020. The measures described there are impracticable and also fail to effectively mitigate the risk of transmission and spread. As explained above, the only truly effective measure is social distancing and diligent hand hygiene. The March 27 guidance contemplates an amount of PPE for detention center staff that simply does not exist. Even if there was a sufficient supply of PPE, the guidance falls short of the only true way of determining whether an individual has contracted the virus and can therefore spread it: blanket testing. Such measures, though, are impossible as we do not have the number of tests needed to test every individual in detention and every staff member, officer, and visitor upon entry. The only appropriate measure is to release individuals so that they can practice social distancing.
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23. Based on the above information, Stewart, Irwin, and Folkston are failing to implement adequate COVID-19 infection control measures. It is my opinion based on review of ICE guidance, the above-referenced declarations, and my treatment of COVID-19 patients, ICE is unable to implement adequate measures to prevent the transmission of COVID-19 to these detention centers and its spread among the populations detained there. Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 2_n_d_ day in April, 2020 in Atlanta, Georgia. _________________________ Dr. Amy Zeidan, MD
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EXHIBIT A

Case 4:20-cv-00069-RSB-CLR Document 4-5 Filed 04/08/20 Page 16 of 30

CURRICULUM VITAE AMY J ZEIDAN

Revised: 2/21/20

1. Name:

Amy J Zeidan

2. Office Address: Department of Emergency Medicine 49 Jesse Hill Jr. Drive SE Atlanta, GA 30303

Tel: 267-324-7326 Fax: 404-688-6531

3. Email:

ajzeida@emory.edu

4. Citizenship: United States of America

5. Current Titles and Affiliations:

a. Academic Appointments:

i. Primary Appointment:

Assistant Professor, Department of Emergency Medicine, Emory University School of Medicine, Atlanta, GA, 07/2019-Present

ii. Joint and Secondary Appointments:

b. Clinical Appointments:

Attending Physician, Grady Memorial Hospital, Atlanta, GA, 07/2019-Present

c. Administrative Appointments

6. Previous Academic and Professional Appointments:

Clinical Instructor, Department of Emergency Medicine, University of Kentucky, 07/2018-07/2019

7. Previous Administrative and/or Clinical Appointments:

8. Licensures/Boards:

Pennsylvania State Board of Medicine, 2014-2018 Federal Drug Enforcement Agency, 2017-Present

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Kentucky Board of Medical Licensure, 2018-2018 Georgia Composite Medical Board (Physician), 2019 9. Specialty Boards: American Board of Emergency Medicine, 2019-2020 10. Education: 08/04-05/08, BA Biology, Gustavus Adolphus College, St. Peter, MN 06/08-07/10, Fellow, National Institutes of Health Postbaccalaureate Intramural Research Training Award (IRTA), Bethesda, MD 08/10-06/14, MD, George Washington University, Washington, D.C. 11. Postgraduate Training: 07/14-06/18, Emergency Medicine Residency, University of Pennsylvania, Philadelphia, PA, Program Director Dr. Francis DeRoos/Dr. Lauren Conlon *Chief Resident 04/17-05/18 07/18-06/19, Emergency Ultrasound Fellowship, University of Kentucky, Lexington, KY, Fellowship Director Dr. Jacob Avila 12. Continuing Professional Development Activities: 1. Physicians for Human Rights Asylum Training, NYC, NY, 05/16 & 10/17 2. ARMED Research Course, Society for Academic Emergency Medicine, 08/18-05/19 3. Clinical Teaching Course, University of Kentucky, Lexington, KY, 08/18-05/19 4. IDN Thought Leader Fellowship, The Op Ed Project, Atlanta, GA, 09/19 13. Military or Government Service 14. Committee Memberships: a. National and International: 1. Member at Large, Hospital of the University of Pennsylvania Housestaff Governing
Council, 06/16-06/17 2. Executive Director of Education, Philadelphia Human Rights Clinic, 12/16-06/18

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3. Treasurer, Awards Co-Chair, CORD Liaison, Resident Representative, and Member, Academy for Advancement of Academy for Women in Academic Emergency Medicine, SAEM, 09/18-Present
4. Co-Chair Finance, Director FemInEM Forward, FemInEM, 07/17-Present
5. Committee Member Consensus Conference & Population Health Advocacy Group, Social Emergency Medicine Section, SAEM, 6/18-Present
6. Member, Research Committee, North American Society of Refugee Healthcare Providers, 09/19-Present
7. Executive Board Member, Young Physicians Initiative (YPI), Doctor for a Day Leader (2020 Conference), 09/19-Present
8. Member, Georgia State University Prevention Research Center (GSU PRC) Community Advisory Board, 10/19-Present
b. Institutional
Trauma Informed Care Committee, 10/19-Present
15. Peer Review Activities:
a. Grants: a. National and International
AWAEM Internal Research Funding Grant Reviewer, 2/2020
b. Regional c. Institutional
b. Manuscript Reviewer:
Canadian Journal of Emergency Medicine (ad hoc reviewer), 2018 Cureus (ad hoc reviewer), 2018 World Journal of Emergency Medicine, 2019 American Journal of Emergency Medicine (ad hoc reviewer), 2019 Harvard Human Rights (ad hoc reviewer), 2019 JAMA Open (ad hoc reviewer, 2019 Journal of Forensic and Legal medicine, 2020
c. Conference Abstracts:

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SAEM 2020 Abstract Reviewer, January 2020
16. Consultantships/Advisory Boards: 1. Author, Quiz for Cause Champion, Rosh Review. Oversee and develop Quiz for Cause Question Banks including Human Trafficking, Sexual Assault, and Firearm Injury Prevention. Co-Developer of Point of Care Ultrasound Question Bank. 2. Co-Founder, Society of Asylum Medicine. Inaugural Society for an emerging field of Asylum Medicine. Goal to establish data driven practice guidelines.
17. Editorships and Editorial boards: 18. Honors and Awards
1. Leonard Tow Humanism in Medicine Award, George Washington University School of Medicine & Health Sciences, 05/14 2. Society for Academic Emergency Medicine Award, George Washington University School of Medicine & Health Sciences, 05/14 3. Chief Residents of the Year, Emergency Medicine Resident Association (EMRA), 04/18 4. Academy of Emergency Ultrasound (AEUS) Resident Educator of the Year, Society of
Academic Emergency Medicine (SAEM), 05/18 5. Resident Travel Grant Award, Academy of Women in Academic Emergency Medicine
(AWAEM), 05/18 6. Momentum Award, Academy of Women in Academic Emergency Medicine (AWAEM),
05/19 7. Emerging Scholars Award, International Conference on Diversity in Organizations,
Communities and Nations, 11/2019 8. Butterfly/Gates Foundation Global Health Program, 10/2020, Support for purchase and
ongoing use of Butterfly ultrasound probes in resource limited settings.
19. Society Memberships: 1. Emergency Medicine Residents’ Association, 2014-2019 2. ACEP, 2014-Present

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3. SAEM, 2014- Present 4. Society for Refugee Health Care Providers, 2016-Present 5. International Society for Traumatic Stress Studies, 2016-2017 20. Organization of Conferences: FemInEM Conference Planning Committee FIX17, FIX18, FIX19 Doctors Who Create (DWC) Conference Planning Committee, 12/18-4/19 21. Clinical Service Contributions: Co-Director, Human Rights Clinic at Emory, 9/1/2019-Present 22. Community Service a. General
Volunteer Physician Evaluator & Executive Director of Education, Philadelphia Human Rights Clinic, >200 service hours, >40 asylum evaluations/affidavits, 6/2014-Present Volunteer Physician & Clinic-Co Chief, Penn Center for Primary Care Refugee Clinic, 2/month with >200 service hours 12/15-6/18 Volunteer Physician, Puentes de Salud, 1/week with >300 service hours, 12/15-6/18 Volunteer Physician, Salvation Army Clinic & SHARES Clinic, Monthly Clinic, 9/185/19 Volunteer Physician, Grace Village Clinic, 7/19-Present Volunteer Physician, Clarkston Community Clinic, 7/19-Present b. Media Outreach 23. Formal Teaching a. Medical Students Ultrasound Instructor, Ultrasound Guided IV’s, Penn Medical School Introduction to Clinical Medicine Bootcamp for MSIII’s 2017. Ultrasound Instructor, Penn Internal Medicine Residency Orientation 2017, Central Line Placement.

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Ultrasound Instructor, Introduction to Clinical Ultrasound, >12 sessions (>40 hours) of instructions for pre-clinical students. Ultrasound Instructor, Hands-on Workshop. Philly Ultrafest at Jefferson University, 2017. Ultrasound Instructor, MD814 Ultrasound Lab. University of Kentucky, 8 sessions, >40 hours
b. Graduate Programs i. Residency Programs – Emergency Medicine Health Care for Refugee, Immigrant and Asylum Populations. University of Pennsylvania Emergency Medicine Conference Grand Rounds, May 2018. InnovatED Workshop. University of Pennsylvania Emergency Medicine Conference, May 2018. Mortality & Morbidity. University of Pennsylvania Emergency Medicine Conference, October 2017, February 2018, May 2018. Ultrasound instructor, Intern Boot Camp, University of Kentucky Emergency Medicine Residency. August & July 2018. Pelvic Pain. University of Kentucky Emergency Medicine Conference, November 2018. Ectopic Pregnancy. University of Kentucky Emergency Medicine Conference, November 2018.
ii. Other Residency Ultrasound Instructor, Internal Medicine Intern Orientation, PIV/CVC insertion, June 2018 ii. Undergraduate Programs 2019 Global Health Case Competition Mentor, University of Kentucky, 2/19 c. Other -Faculty Ultrasound Instructor, Hands-on Workshop. Resuscitative TEE Conference at University of Pennsylvania, 2018.

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Ultrasound Instructor, Hands-on Workshop. Castlefest Ultrasound Education Conference 2018, Lexington KY. Ultrasound Instructor, TEE Workshop at SAEM, Indianapolis, IN, May 2018 Ultrasound Instructor, TEE workshop, University of Pennsylvania, August 2018 Ultrasound Instructor, TEE workshop, Miami, FL, February 2018. Ultrasound Faculty, Point-of-Care Ultrasound in Resource-Limited Environments (PURE) East Africa Emergency Medicine Resident Ultrasound Mentorship Program & Bi-weekly Video Review, Monica Akwaso, PGY1 at Mbarara University of Science and Technology, Uganda. June 2018-Present.
24. Supervisory Teaching: b. Residents Asylum Mentor to Dr. Sunny Lee, MD, 2017-2018. Oversaw asylum evaluations and affidavits. Faculty Mentor to Dr. Kristen Bascombe, 2019-Present c. Graduate Students d. Medical Students Advisor to Dr. Vidya Viswanathan, 2016-2018 Pediatric Resident at CHOP, Pennsylvania, PA Research Advisor to Hannah Bogen, Penn Center for Primary Care Refugee Clinic Research Initiative, 2017-Present. Presented work at North American Refugee Healthcare Conference, publication under review. Discovery Advisor to Maggie Smith, Emory School of Medicine e. Undergraduate Students Pre-Medical Advisor to Maria Ordinola, Puentes de Salud, 2015-2018.
25. Lectureships, Seminar Invitations, and Visiting Professorships: a. National and International b. Regional

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Barriers to Healthcare for Refugee and Immigrant Patients, Georgia State University Nursing School Workshop, February 3, 2020
c. Institutional Healthcare Barriers for Refugees, Refugee Health Training Day, Emory School of Medicine, 9/19/2019 Keynote: Trauma Informed Care, Emory Law School Trauma-Informed Legal Services Workshop, 1/25/2020 Trauma Informed Care Approach with Asylum Seekers, Workshop Facilitator, Emory Law School Trauma-Informed Legal Services Workshop, 1/25/2020 Health & Human Rights of Asylum Seekers in the US, Health & Human Rights Public Health Course, Emory School of Public Health, 2/20/2020
26. Invitations to National/International, Regional, and Institutional Conferences: a. National and International Women’s health screening and mapped community resources for recently resettled refugees in Philadelphia. Oral Presentation at the North American Refugee Health Conference, June 2018 InnovatED Feedback Model. Didactic Presentation at CORD Academic Assembly, April 2019. The Unrecognized Trauma Assessment: Why Emergency Physicians Should Learn to Perform Medical Asylum Evaluations. Ignite Presentation at the Society for Academic Medicine Annual Meeting, May 2019. #Shemergency: Recruitment and Retention Strategies for Female Residents. Didactic Presentation at the Society for Academic Medicine Annual Meeting, May 2019. Resident Led Initiatives, Diversity, Equity and Inclusion, Didactic Presentation at the Society for Academic Medicine Annual Meeting, May 2020
b. Regional c. Institutional

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Refugees & The ER. Plenary Oral Presentation at the University of Pennsylvania Emergency Medicine Annual Research Day, University of Pennsylvania, April 2017.
Feminist Fight Club. University of Kentucky Women’s Forum, October 2018.
27. Abstract Presentations at National/International, Regional, and Institutional Conferences:
a. National and International:
Jennifer S. Love, MD, Mira Mamtani MD, Lauren W. Conlon MD, Francis DeRoos MD, Amy J. Zeidan MD, Kevin R. Scott MD. Using a Case-Based Blog to Supplement Emergency Medicine Education: One Residency’s Experience. Poster at 2017 CORD Academic Assembly Poster Session, April 2017.
Khatri U, Zeidan AJ, Frances Schofer, Lauren Conlon, Kevin Scott, Mira Mamtani, Jaya Aysola. Implicit Bias Training in Emergency Medicine Residency: “There’s a right answer.” Lightning Oral Presentation at the SAEM Annual Conference, May 2018.
Pwinica-Worms, W, Li J, Zahalka R, Zeidan AJ, Chan W. SonOlympics: An Innovative Ultrasound Review for Preclinical Medical Students. Oral presentation at AIUM, May 2018.
Khatri, UG, Bilger, A, Zeidan AJ, Samuels Kalow M, Meisel Z, Delgado KM, South EG. Facilitators and Barriers to Healthcare Access after Incarceration: Implications for Acute Care. e-Poster presentation at the Society of Academic Emergency Medicine Annual Meeting, May, 2019.
b. Regional
Zeidan AJ, Khatri U, Munyikwa M, Jones E, Barden-Mejia A, Samuels-Kalow M. Refugees & The ER. Lightning Oral Presentation at the SAEM Mid-Atlantic Regional Conference, March 2017.
Khatri U, Zeidan AJ, Frances Schofer, Lauren Conlon, Kevin Scott, Mira Mamtani, Jaya Aysola. Implicit Bias Training in Emergency Medicine Residency: “There’s a right answer.” Lightning Oral Presentation at the SAEM Mid-Atlantic Regional Conference, March 2018.
c. Institutional
Khatri U, Zeidan AJ, LaRiviere M, Sanchez S, Lynn J, Weaver L, Shofer F, Todd B, Aysola J. “Implicit Bias Training in Graduate Education: “Dissidence Between Bias and Reality.” Poster at The University of Pennsylvania Annual Health Equity Week, April 2018.

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Khatri U, Zeidan AJ, Frances Schofer, Lauren Conlon, Kevin Scott, Mira Mamtani, Jaya Aysola Implicit Bias Training in Emergency Medicine Residency: “There’s a right answer.” Poster at The University of Pennsylvania Annual Health Equity Week, April 2018.
Deshpande N, Zeidan AJ, Barden A, Truchill R, Salva C. OB/GYN referral service to enhance internal access to care for refugee women. Poster Presentation at Penn Health Equity Week, April, 2019. *Best Housestaff Abstract
28. Research Focus
My research currently focuses on healthcare access and barriers for refugees, immigrants, and asylums seekers. I am specifically interested in ED utilization, transitions of care, and collaborations with community based organizations. I am also interested in development of guidelines for asylum evaluation best practices and standards.
29. Grant Support
a. Previous b. Current

Active

AG2020-0000000042 (Zeidan, PI)

6/1/2020-6/1/2021 0.12 Calendar

SAEMF/Academy for Women in Academic Emergency Medicine (AWAEM)

$5000

Barriers to Reporting Incidents of Gender and Sexual Harassment in Training and Practice

(BRIGHT)

To understand perceived barriers to reporting sexual and/or gender harassment among

emergency department providers. We will perform semi-structured interviews with emergency

medicine physicians to understand a range of barriers to reporting sexual and gender harassment.

Overlap: There is no overlap with proposed work.

Pending

Emory University Pilot Grant Program (Yaffee, PI)

5/31/2020-5/31/2021 0.12 Calendar

Bidirectional Global Health Disparities Research

$25,000

The EMER/I (Electronic Medical Records for Ethiopian Refugees and Immigrants) Project:

Implementation of Emergency Department Triage Screen to Identify and Assess Healthcare

Utilization, Outcomes, and Needs of Ethiopian and Other Immigrants in Atlanta, Georgia.

The proposed research will focus on development and evaluation of a method for identifying

refuses and immigrants within the Emory/Grady healthcare systems electronic health records in

an ethically appropriate manner.

Overlap: There is no overlap with proposed work.

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ENAF/EMF/AFFIRM Research Grant (Zeidan, PI)

06/01/2020-05/31/2020 0.4 Calendar

Faculty Research Award in Firearm Injury Research

$75,000

Application of a Novel SBIRT Model to Reduce Symptoms of PTSD after Gunshot Injury

This project seeks to assess the feasibility of implementing the SBIRT model to screen and/or

treat for PTSD in patient with non self-inflicted gunshot wounds, and to assess the effects of

SBIRT on PTSD symptoms among patients admitted after non self-inflicted gunshot wounds.

EMCF Research Grant (Smith, PI)

06/01/2020-05/31/2020 0.4 Calendar

Faculty Research Award

$25,000

Application of a Novel SBIRT Model to Reduce Symptoms of PTSD after Gunshot Injury

This project seeks to assess the feasibility of implementing the SBIRT model to screen and/or

treat for PTSD in patient with non self-inflicted gunshot wounds, and to assess the effects of

SBIRT on PTSD symptoms among patients admitted after non self-inflicted gunshot wounds.

Field Scholars Program (Zeidan, PI) Emory Global Health Institute Assessing the Legal Need for Medical Evaluations of Asylum Seekers in Metropolitan Atlanta The proposed projects seeks to understand the current asylum case demand including case outcomes, explore the challenges faced by legal teams representing asylum clients, and explore medical-legal partnerships with local immigration attorneys to understand how attorneys and clinicians can collaborate to support asylum seekers.

Internal Research Funding (Love, PI) AWAEM Women Professional Development Outcome Metrics The proposed study will determine measurable outcome metrics for women PDGs by establishing expert consensus from a panel of emergency medicine department chairs and gender equity leaders.

Internal Research Funding (Salhi, PI) AWAEM Professional Development and Gender Identity Among Women Emergency Medicine Residents The proposed study will seek to elucidate how gender influences the professional identity of women emergency medicine residents as physicians, and how they negotiate and manage their multiple identities as women, physicians, and residents. Additionally, the study will explore strategies women emergency medicine residents utilize to manage conflicting roles and expectations.

30. Bibliography
a. Published and Accepted Research Articles in Refereed Journals:
Zeidan AJ, Khatri U, Munyikwa M, Jones E, Barden-Mejia A, Samuels-Kalow M. Barriers to accessing acute care for newly arrived refugees. West J Emerg Med. 2019;20(6):842-850.

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Zeidan AJ, Woodward M, Tiballi A, Di Bartolo MI. Targeting Implicit Bias in Medicine: Lessons from Art and Archaeology. West J Emerg Med. 2019;21(1)1-3.
Khatri UG, Love J, Zeidan AJ, Hsu C, Mills A. #Shemergency Presents: Recruitment & Retention of Female Residents. Academic Medicine. 2020;95(2):216-220.
Ferdowsian H, McKenzie K, Zeidan AJ. Asylum Medicine: Standard and Best Practices. Health and Human Rights Journal. 2019; 21(1).
Teran F, Dean AJ, Chan W, Panebianco N, Centeno C, Zeidan AJ, Abella B. Evaluation of Out-of-Hospital Cardiac Arrest using Transesophageal Echocardiography in the Emergency Department. Resuscitation. 2019; 137:140-147.
Zeidan AJ, Khatri UG, Aysola J, Shofer FS, Mamtani M, Scott KR, Conlon LW, Lopez BL. Implicit bias education and emergency medicine training: step one? awareness. Academic Emergency Medicine Education and Training. 2018; 3(1):81-85.
Zang RZ, Zeidan AJ, Scott K. Man with stridor. Annals of Emergency Medicine. 2017;69(2):265-266.
Chen YY, Khoury, P, Ware JM, Holland-Thomas NC, Stoddard JL, Gurprasad S, Waldner AJ, Klion AD. Marked and persistent eosinophilia in the absence of clinical manifestations. The Journal of Allergy & Clinical Immunology. 2014;133(4):1195-1202.
Moir S, Buckner CM, Ho J, Wang W, Chen J, Waldner AJ, Posada JG, Kardava L, O’Shea MA, Kottilil S, Chun TW, Proschan MA, Fauci AS. B Cells in early and chronic HIV infection: evidence for preservation of immune function associated with early initiation of antiretroviral therapy. Blood. 2010;116(25):5571-9.
b. Manuscripts Submitted:
Agrawal P, Madsen T, Lall M, Zeidan AJ. Gender Disparities in Academic Emergency Medicine: Strategies for the Recruitment, Retention and Promotion of Women. AEM Education in Training. Accepted, copyediting in progress.
Payton C, Zeidan AJ, Bogen H, Altshuler M. Women’s health screening and mapped community resources for refugees resettled in Philadelphia, Pennsylvania. Journal of Health Care for the Poor and Underserved. Accepted, copyediting in progress.
Khatri UG, Bilger A, Zeidan AJ, Meisel Z, Delgado MK, Samuels-Kalow, M, South EG. Life after incarceration: A firsthand account of barriers and facilitators to accessing healthcare during re-entry. American Journal of Preventive Medicine. Under Review.
c. Review Articles:

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d. Book Chapters:
Asylum Medicine Textbook Chapter, in process
e. Books edited and written f. Book review: g. Manuals, Videos, Computer Programs, and Other Teaching Aids:
Teran F, Zeidan AJ. TEE Instructional Video: https://www.resuscitativetee.com/lectures/
h. Published Abstracts:
i. Other Publications:
a. Digital Scholarship
Pellet, A., Zeidan, A., Avila, J. Acute Versus Chronic Right Heart Failure, EMResident, November 2019. Accessed at
Zeidan, AJ. Standing AFFIRM: Firearm Access Raises Teen’s Risk of Injury, Death. Emergency Medicine News. November 2019;41(11):12. Accessed at https://journals.lww.com/emnews/Fulltext/2019/11000/Standing_AFFIRM__Firearm_Access_Raises_Teen_s_Ris k.10.aspx
Khatri U, Zeidan A, LaRiviere M, Sanchez S, et al. An evaluation of implicit bias training in graduate medical education. MedEdPublish. 2019; 8(2). https://doi.org/10.15694/mep.2019.000109.1 *post publication peer reviewed
Zeidan, AJ. Teenagers and Firearms. AFFIRM Research Article. February 2019. Accessed at https://affirmresearch.org/learn/teenagers-and-firearms/
Flower A, Zeidan AJ. Risk of Clot When Imaging Says Not. February 2019. Accessed at http://www.emdocs.net/risk-of-clot-when-imaging-says-not/
Mohammadie S, Zeidan AJ. Hepatic Encephalopathy: Common Precipitants, Sneaky Precipitants and Clinical Pearls. March 2019. Accessed at http://www.emdocs.net/hepaticencephalopathy-common-precipitants-sneaky-precipitants-and-clinical-pearls/
Teran F, Zeidan AJ. Implementation of a Resuscitative TEE Program in the ED-ICU Interface. ACEP Critical Care Medicine Newsletter. April 2018. Accessed at https://www.acep.org/how-we-serve/sections/critical-care-medicine/news/march2018/implementation-of-a-resuscitative-tee-program-in-the-ed-icu-interface/

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Zeidan, AJ. #Shemergency - The Unstoppable Movement. Published in the AWAEM Awareness Newsletter and on the FemInEM Blog. April 2017. Accessed at https://feminem.org/2017/08/01/shemergency-unstoppable-movement/.
Waldner, Amy. The truth about refugees and healthcare: 5 myths busted. Posted on The Philadelphia Inquirer. January 2017. Accessed at http://www.philly.com/philly/blogs/healthcare/The-truth-about-refugees-and-healthcare-5-myths-busted.html.
Waldner A, Raven M, Lazar D, Pines J. Redefining frequent emergency department users. Urgent Matters Issue Brief. April 2014. Accessed at: https://smhs.gwu.edu/urgentmatters/issuebriefs
Waldner, Amy. Viewpoint: Physician Advocates Student-Led Support Groups for Grief and Loss. AAMC Reporter. Accessed at: https://www.aamc.org/newsroom/reporter/julyaugust2014/401384/viewpointphysicia nadvocatesstudent-ledsupportgroupsforgriefandl.html
b. Podcasts/Online Media
Lewiss RE, Zeidan AJ, Gutman A, Firew, T. An Episode Dedicated to the Letter “A” = Advocacy https://feminem.org/podcast/an-episode-dedicated-to-the-letter-aadvocacy/
Lewiss RE, Zeidan AJ, Perrone, JM. The Opioid Crisis and Advocacy https://feminem.org/podcast/dr-jeanmarie-perrone-chats-the-opioid-crisis-andadvocacy/
Lewiss RE, Zeidan AJ, Viswanathan. The First Doctors Who Create Conference https://feminem.org/podcast/the-1st-doctorswhocreate-conference-with-vidyaviswanathan/
Kass D, Mody S, Lema P, Zeidan AJ, Lewiss RE. #FIX18 is a Wrap! Discussing the Conference with Some of Original Otters https://feminem.org/podcast/fix18-is-awrap-discussing-the-conference-with-some-of-original-otters/
Zeidan AJ. Twitter Session Moderator, FemInEM FIX18 Conference, October 2018 & September 2019.
Online Panel Expert, NEJM Resident Expert, Challenges for Women in Medicine, September 2018.
Kass D, Zeidan AJ, Naples R, Lewiss RE. Entering the Shemergency Room. https://feminem.org/podcast/entering-the-shemergency-room/ (Podcast panel, March 2018)

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EXHIBIT 4

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DECLARATION OF JOHN SANDWEG I, John Sandweg, hereby declare under the penalty of perjury pursuant to 28 U.S.C. § 1746:
1. I make this declaration based on my personal knowledge except where I have indicated otherwise. If called as a witness, I could and would testify competently and truthfully to these matters.
2. I am currently a partner at Nixon Peabody LLP, where I lead the CrossBorder Risks team, focusing on complex national security, immigration, and Department of Homeland Security (DHS) compliance matters.
3. Before returning to private practice, I held many leadership positions with U.S. Immigration and Customs Enforcement (ICE) and DHS from 2009-2014. From 2013 to 2014, I served as Acting Director of U.S. Immigration and Customs Enforcement (ICE), where I led 20,000 employees in every state and 47 countries in fulfilling the agency’s mission to enhance public safety and border security through the enforcement of federal border control, customs, trade, and immigration laws. As Acting Director of ICE, I served as the chief legal officer for DHS, advising the Secretary and the Department’s senior leadership on all significant legal, policy, and operational issues. Prior to my position as the Acting Director of ICE, I held the position of Acting General Counsel of DHS from 2012-2013,
1

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advising the DHS Secretary and the Department’s senior leadership on all significant legal, policy, and operational issues. Prior to becoming Acting General Counsel, I server as a Senior Counselor in the Office of the DHS Secretary, where I served as a principal architect of the DHS’s immigration, border security, and law enforcement policy. I am an attorney licensed in the District of Columbia and Arizona.
4. The coronavirus pandemic has brought our nation to a standstill. It has strained our public health agencies and promises to overtax the American public health care system in the very near future.
5. ICE currently detains over 35,000 detainees across the country. ICE detention centers are extremely susceptible to outbreaks of infectious diseases. Based on my experience as Acting Director of ICE, I know that preventing the coronavirus from being introduced into these facilities is impossible. The design of these facilities requires inmates to remain in close contact with one another—the opposite of the social distancing now recommended for stopping the spread of the lethal coronavirus.
6. There is no question that ICE detention centers are vulnerable to outbreaks of contagious diseases. These detention centers present the very situation that public health experts around the world are warning against. There are a large
2

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number of people contained in a very small environment. Any outbreak (a single case) will spread like wildfire. The design of ICE detention facilities requires inmates to remain in close contact with one another. There is absolutely no way to prevent the virus from being introduced into these facilities.
7. When an outbreak of COVID-19 occurs in an ICE facility, the detainees will not be the only ones at risk. An outbreak will expose the hundreds of ICE agents and officers, medical personnel, contract workers, and others who work in these facilities to the virus. Once exposed, many of them will unknowingly take the virus home to their families and communities.
8. Moreover, once the virus tears through a detention center, crucial and limited medical resources will need to be diverted to treat those infected. ICE can, and must, reduce the risk a detention center outbreak poses to so many people, and the most effective way to do so is to drastically reduce the number of people it is currently holding.
9. It is my considered opinion, based on my years of experience working in leadership positions at DHS and ICE, that ICE has the operational capacity to quickly and drastically reduce the population of civil immigration detainees while still protecting public health as much as possible. Doing so will avoid an imminent grave public health threat. ICE should continue to detain those who threaten
3

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public safety or national security, but very drastically reducing the detainee population is clearly in the public interest. I declare under penalty of perjury that the foregoing is true and correct. Executed this 2nd day of April, 2020 in Phoenix, Arizona.
___________________ John Sandweg
4

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John R. Sandweg
1401 H Street NW, Suite 875, Washington, DC 20005 202-754-2303

PROFESSIONAL EXPERIENCE

Nixon Peabody LLP, Washington, DC

August 2019 – Present

Partner

• Leads the firm’s Cross-Border Risks practice group, focusing on complex international challenges involving

issues related to cross-border business, immigration, and national security.

• Defends individuals and corporations in federal and state criminal and regulatory matters.

• Works with businesses to discreetly conduct internal investigations into allegations or suspicions of

misconduct, of potential legal or regulatory risk, and in support of potential or on-going litigation.

• Heads up team that reviews current immigration compliance programs to develop proactive solutions to

mitigate the risk of civil and criminal penalties when responding to government inquiries and to implement

effective policies to ensure future compliance.

• Advises clients on a variety of topics including general immigration law, general enforcement practices,

USCIS policies, FOIA/government record keeping, as well as E-Verify/SAVE verification issues.

• Continue to be called upon as an expert by national media outlets on issues related to immigration

enforcement and border security.

Frontier Solutions, Washington, DC

April 2014 – August 2019

Founding and Managing Partner

• Managed and founded DC-based law firm specializing in complex national security, immigration, and

international criminal matters.

• Assembled team of attorneys, legal professionals and former law enforcement officials to provide legal and

consulting services to diverse array of clients.

• Established a law firm from the ground up and grew the firm’s client base into hundreds of individuals and

businesses.

• Served as a frequent commentator in national print and television outlets on issues related to immigration

enforcement and border security.

U.S. Immigration and Customs Enforcement, Washington, DC

August 2013 – March 2014

Director (Acting)

• Appointed by President Obama to serve as the head of the law enforcement agency responsible for enforcing

federal criminal and civil laws related to international trade, intellectual property rights, trans-national crime,

cyber security and immigration.

• Managed agency’s daily activities, overseeing federal criminal investigations into export control violations,

intellectual property theft, money laundering, cyber crimes, and unlawful employment

• Developed and implemented comprehensive strategy to enhance the focus of the nation’s interior immigration

enforcement efforts on individuals who pose the greatest threats to public safety and national security.

• Created new methodologies for the collection and public reporting of statistics related to ICE’s immigration

enforcement efforts.

• Supervised operations and activities of over 20,000 employees, including over 14,000 federal law

enforcement officers, 900 attorneys, 200 international attache officers and administered the agency’s $5.9

billion budget.

• Coordinated daily operations with Department of Homeland Security, Department of Justice, the White

House and other international, federal, state and local law enforcement agencies.

• Crafted the agency’s public relations and legislative affairs strategies, briefing members of Congress,

conducting press conferences and interviewing with print and televised media on agency strategy and

operations.

U.S. Department of Homeland Security, Washington, DC

August 2012 – August 2013

Case 4:20-cv-00069-RSB-CLR Document 4-6 Filed 04/08/20 Page 7 of 8
John R. Sandweg
1401 H Street NW, Suite 875, Washington, DC 20005 202-754-2303

General Counsel (Acting) • Appointed by President Obama to serve as the chief legal officer of the Department of Homeland Security, supervising the Department’s legal operations and managing all legal personnel throughout the Department. • Served as a member of the Secretary’s senior staff, managing the Department’s litigation portfolio and coordinating the Department’s response to congressional oversight while continuing to serve as the Department’s lead policy maker on immigration and border security. • Led the Department’s efforts to enact comprehensive immigration reform, working closely with the Senate on the drafting of S744, briefing members of Congress and their staff on issues related to immigration and border security, coordinating the Department’s efforts and serving as the Department’s principal liasion with the White House on all immigration issues. • Worked closely with the Department of Justice, the National Security Staff and interagency partners formulating the Administration’s legal positons on issues related to national security. • Advised the Secretary on terrorism investigations, emergency events and high-profile issues, including the Boston Marathon bombing, border security and criminal investigations. • Served as the United States’ lead negotiator on an international treaty with the United Arab Emirates regarding the establishment of a pre-clearance facility in Abu Dhabi and the exchange of security related information.

U.S. Department of Homeland Security, Washington, DC

January 2010 – August 2012

Senior Counselor to the Secretary

• One of three critical members of Secretary Napolitano’s senior staff, coordinating and developing policy with

particular emphasis on immigration and border security, counter-terrorism, cyber-security, transportation

security and privacy.

• Managed the Department’s responses to congressional oversight and oversaw the daily operations of the

Department on a wide array of issues.

• Represented the Department in the policy development process with the White House, Congress and external

stakeholders.

• Developed communications strategy and conducted media interviews and briefed Congressional and non-

governmental stakeholders on Departmental policy and operations.

U.S. Department of Homeland Security, Washington, DC

March 2009 – January 2010

Chief of Staff to the General Counsel

• Provided legal and strategic advice to the Secretary of Homeland Security and her senior staff on an array of

issues.

• Coordinated the daily operations of the Office of the General Counsel, overseeing the work of attorneys

across the department.

• Worked with the White House Counsel’s office and the Department of Justice on Homeland Security issues.

Quarles and Brady LLP, Phoenix, AZ

September 2002 – March 2009

Associate

• Developed a broad-based criminal defense practice, specializing in representing clients in federal and state

litigation and regulatory matters.

• Served as lead counsel in over twenty jury trials, and numerous evidentiary hearings, oral arguments and

administrative proceedings.

• Authored appellate briefs to both the Arizona Court of Appeals and the Arizona Supreme Court.

• Represented crime victims and assisted law enforcement in criminal investigations as victim’s counsel.

Case 4:20-cv-00069-RSB-CLR Document 4-6 Filed 04/08/20 Page 8 of 8
John R. Sandweg
1401 H Street NW, Suite 875, Washington, DC 20005 202-754-2303
EDUCATION

Arizona State University College of Law, Tempe, AZ Juris Doctor, cum laude, Order of the Coif, Pedrick Scholar
Arizona State University, Tempe, AZ Bachelor of Arts, Political Science

May 2002 May 1999

 
 Case 5:20-cv-00046-LGW-BWC Document 41 Filed 05/08/20 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA

JENNER BENAVIDES, et al.,

Petitioners/Plaintiffs,

v.

Case No.: 5:20-cv-46-LGW-BWC

PATRICK GARTLAND, et al., Respondents/Defendants.

HEARING REQUESTED

PETITIONERS-PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND EMERGENCY WRIT OF HABEAS CORPUS
Pursuant to Federal Rule of Civil Procedure 65, Petitioners-Plaintiffs Jenner Benavides, David Fernandez, Gerardo Arriaga, Ajit Kumar, Scott James, and Winston Brown (collectively, “Petitioners”) hereby submit this Motion for Preliminary Injunction and emergency habeas relief.1 Petitioners are medically vulnerable civil detainees at Folkston ICE Processing Center (“Folkston”). Due to their detention in a congregate setting, they are at a high risk of contracting COVID-19; given their medical vulnerabilities, they are at high risk of suffering severe negative health impacts, or even death, if they do. Because Respondents-Defendants’ (collectively, “Respondents”) continued detention of Petitioners, especially without consistent adherence to CDC Guidance, poses a severe risk of serious illness or death that vastly outweighs any legitimate government interest in continuing to detain them, that continued detention constitutes

1 Petitioners Jenner Benavides, David Fernandez, and Gerardo Arriaga are proceeding in this action using pseudonyms, as permitted by oral order of the Court on April 15, 2020. Petitioners Ajit Kumar and Winston Brown also use pseudonyms herein and filed a motion to proceed pseudonymously on May 7, 2020. Respondents have indicated that they will not take a position on Petitioners’ motion.
1

Case 5:20-cv-00046-LGW-BWC Document 41 Filed 05/08/20 Page 2 of 7
impermissible punishment. Because Respondents know or should know of the substantial risk of serious harm to Petitioners, their continued detention also demonstrates deliberate indifference. In addition, because Respondents have failed to comply with the Performance-Based National Detention Standards (PBNDS) or the CDC Guidance in managing the COVID-19 pandemic at Folkston, they have violated the Accardi doctrine. For all these reasons, Respondents’ conduct violates the Petitioners’ rights under the Fifth Amendment Due Process Clause. Accordingly, Petitioners move the Court to issue a Writ of Habeas Corpus or a temporary restraining order securing their immediate release from detention.
If the Court does not grant Petitioners’ release, Petitioners in the alternative request that the Court order the following relief to maximize their safety, to the extent possible, while in detention:
1. Respondents to immediately conduct custody redeterminations for all Petitioners, with specific consideration of the medical conditions that make Petitioners especially vulnerable to severe illness, long-term organ damage, or death from COVID-19. These custody redeterminations cannot consider deterrence of future migration as a factor justifying detention and must provide Petitioners the opportunity to submit medical records relevant to their risk of complications if they were to contract COVID-19;
2. Respondents to immediately comply with CDC Guidance regarding COVID-19 at Folkston, including but not limited to the provisions requiring: a. Implementation and enforcement of social distancing (maintaining at least 6 feet of distance) among all people in the detention center at all times; b. Provision of a supply of soap sufficient to allow frequent handwashing for 20 seconds at a time, as well as continual access to hygiene supplies (including PPE), running water, hand drying machines or disposable paper towels, and no-touch trash receptacles; 2

Case 5:20-cv-00046-LGW-BWC Document 41 Filed 05/08/20 Page 3 of 7
c. Intensified cleaning and disinfecting practices, including: (1) evaluating dilution levels of cleaning products; (2) cleaning, several times per day, all frequently touched surfaces with household cleaners and EPA-registered disinfectants that are effective against COVID-19 and appropriate for the surface, (3) taking relevant precautions needed when using these products, particularly around detained people with underlying respiratory conditions, and (4) adapting cleaning and disinfecting practices when suspected or confirmed COVID-19 cases have been identified;
d. Testing of all symptomatic individuals, including rapid identification and appropriate triage of those at highest risk of complication of infection;
e. Immediate response to symptoms of COVID-19, including: (1) placement of the symptomatic individual under safe medical isolation, with their own housing space and bathroom, and regular provision of a clean face mask, and (2) determination of whether the symptomatic individual is at higher risk for severe illness from COVID-19 due to an underlying condition, and provision of further evaluation and treatment as appropriate;
f. Halting of transfers of detained people to and from Folkston unless “absolutely necessary,” and adhering to infection control measures for the transportation of detained people if any transfers are “absolutely necessary”;
g. Implementation of routine quarantining of new intakes for 14 days at Folkston with regular assessment for symptomatic individuals; and
h. Consistent and effective screening of visitors to Folkston to limit exposure to COVID-19;
i. Clear and regular verbal and written communication about COVID-19 and risk reduction to the detained populations, including: (1) posting signs throughout the facilities that advise detained people of the symptoms of COVID-19, hand hygiene and cough etiquette, and other methods of protection against COVID-19, and that can be understood by non-English speakers and those with low literacy or needing other accommodations, and (2) clear and frequent in-person communication with detained people about risk reduction and the presence of COVID-19 cases inside the facilities;
3. Respondents to submit to monitoring to ensure ongoing compliance with CDC Guidance;
4. Respondents to provide reporting to this Court and Petitioners’ Counsel twice per
week with the following:
a. Total detainee population at Folkston; b. Total number of COVID-19 tests performed for detainees at Folkston, GEO Group staff employed at Folkston, ICE staff on site at Folkston, and any other contractors who visit Folkston; and dates of samples taken for testing; c. Number of positive results among tests performed and reported under 4.b.;
3

Case 5:20-cv-00046-LGW-BWC Document 41 Filed 05/08/20 Page 4 of 7

d. Number of suspected COVID-19 cases, or presumed positive cases among detainees at Folkston, GEO Group staff employed at Folkston, ICE staff on site at Folkston, and any other contractors who visit Folkston; e. Number of people quarantined due to COVID-19 at time of report; f. Number of people cohorted due to COVID-19 at time of report; g. Number of people in negative pressure rooms due to COVID-19 at time of report; h. Total number of medical appointment requests received since the last report (with the first report referring back to April 1, 2020) and number of medical appointments completed since the last report (with the first report referring back to April 1, 2020), including the date the medical appointment took place and where the medical appointment took place (i.e., in the medical unit or in the housing unit); i. Number of people transferred to Folkston since the last report (with the first report referring back to April 1, 2020), including the specific location where they were transferred from and the date(s) of transfer(s); j. Compliance with this Court’s order, to the extent not covered in the reporting and monitoring requirements above; and
5. Such other relief as this Court may deem appropriate.

In addition, Petitioners propose the following schedule for briefing and a hearing on this

and their other pending motion:

Friday, May 8

Status Conference with the Court on (a) Motion for Expedited Discovery (b) Motion for Preliminary Injunction

Monday, May 11 at 12:00pm

Respondents’ response to Motion for Expedited Discovery due

Tuesday, May 12 at 12:00pm

Petitioners’ reply in support of Motion for Expedited Discovery due

Wednesday, May 13 at 9:00am

Hearing on Motion for Expedited Discovery

Thursday, May 14 at 12:00pm

Respondents’ responses to interrogatories due

Friday, May 15

Dr. Homer Venters’ inspection of Folkston

Tuesday, May 19

Dr. Homer Venters’ report due to the Court

Thursday, May 21 at 12:00pm

Respondents’ response to Motion for Preliminary Injunction due

4

Case 5:20-cv-00046-LGW-BWC Document 41 Filed 05/08/20 Page 5 of 7

Friday, May 22 at 5:00pm Tuesday, May 26

Petitioners’ reply in support of Motion for Preliminary Injunction due
Hearing on Petitioners’ Motion for Preliminary Injunction

The grounds for Petitioners’ Motion are set forth in more detail in the accompanying Memorandum of Law in Support of their Motion for Preliminary Injunction.

Dated: May 8, 2020

Respectfully submitted,

SOUTHERN POVERTY LAW CENTER

KILPATRICK TOWNSEND & STOCKTON LLP

Gracie Willis* (GA Bar #851021) Rebecca Cassler* (GA Bar #487886) Lorilei Williams* (NY Bar #5302617) 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 Fax: (404) 221-5857 gracie.willis@splcenter.org rebecca.cassler@splcenter.org
Paul Chavez* (FL Bar #1021395) Victoria Mesa-Estrada* (FL Bar #076569) 2 S. Biscayne Blvd., Ste. 3200 Miami, FL 33101 Tel: (786) 347-2056 paul.chavez@splcenter.org victoria.mesa@splcenter.org
Melissa Crow** (DC Bar #453487) 1101 17th Street, NW, Ste. 705 Washington, DC 20036 Tel: (202) 355-4471 Fax: (404) 221-5857 melissa.crow@splcenter.org

By: /s/ Mark H. Reeves Mark H. Reeves (GA Bar #141847) Enterprise Mill 1450 Greene Street, Ste. 230 Augusta, GA 30901 Tel: (706) 823-4206 Fax: (706) 828-4488 mreeves@kilpatricktownsend.com
Tamara Serwer Caldas** (GA Bar #617053) Kathryn E. Isted* (GA Bar #908030) Amanda Brouillette** (GA Bar #880528) 1100 Peachtree St., NE, Ste. 2800 Atlanta, GA 30309 Tel: (404) 815-6006 Fax: (404) 541-4754 tcaldas@kilpatricktownsend.com kisted@kilpatricktownsend.com abrouillette@kilpatricktownsend.com
ASIAN AMERICANS ADVANCING JUSTICEATLANTA
Hillary Li* (GA Bar #898375) Phi Nguyen* (GA Bar #578019) 5680 Oakbrook Pkwy, Ste. 148
5

Case 5:20-cv-00046-LGW-BWC Document 41 Filed 05/08/20 Page 6 of 7

* admitted pro hac vice ** pro hac vice motion forthcoming

Norcross, GA 30093 Tel: (404) 585-8466 Fax: (404) 890-5690 hli@advancingjustice-atlanta.org pnguyen@advancingjustice-atlanta.org

6

Case 5:20-cv-00046-LGW-BWC Document 41 Filed 05/08/20 Page 7 of 7
CERTIFICATE OF SERVICE I hereby certify that I am counsel of record for the Petitioners in the above-captioned action and that on May 8, 2020, Petitioners’ counsel electronically filed the foregoing with the Clerk of the Court using the CM/ECF System. Given the emergency nature of this action, I further certify that on May 8, 2020, Petitioners’ counsel emailed copies of this filing to Woelke Leithart, Assistant United States Attorney in the Southern District of Georgia, at Woelke.Leithart@usdoj.gov.
/s/ Kathryn E. Isted Kathryn E. Isted
7

Case 5:20-cv-00046-LGW-BWC Document 41-1 Filed 05/08/20 Page 1 of 36

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA

JENNER BENAVIDES, et al.,

Petitioners/Plaintiffs,

v.

Case No.: 5:20-cv-46-LGW-BWC

PATRICK GARTLAND, et al., Respondents/Defendants.

HEARING REQUESTED

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION AND EMERGENCY WRIT OF HABEAS CORPUS

Petitioners1 are immigrants in ICE custody at Folkston ICE Processing Center (“Folkston”) in rural southeast Georgia. Petitioners have medical conditions that put them at high risk of serious illness or death if they contract COVID-19, which is almost certain to happen if they remain in detention. It is impossible for Petitioners to protect themselves from COVID-19 in a carceral setting like Folkston, where daily close contact with guards and dozens of other detained individuals is unavoidable and good personal hygiene unattainable. Petitioners fear for their lives if the Court does not emergently intervene.
Petitioners previously moved this Court for a preliminary injunction ordering Respondents to release them on April 8, 2020. See Dkt. 4. At the time, there were not yet any reported cases of COVID-19 at Folkston. The Court denied Petitioners emergency relief on the ground that the factual record “thus far” did not sufficiently prove release to be the only remedy that would cure

1 Petitioners Jenner Benavides, David Fernandez, and Gerardo Arriaga are proceeding in this action using pseudonyms, as permitted by oral order of the Court on April 15, 2020. Petitioners Ajit Kumar and Winston Brown also use pseudonyms herein and have filed a motion to proceed pseudonymously. Respondents have indicated that they will not take a position on Petitioners’ motion.
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Case 5:20-cv-00046-LGW-BWC Document 41-1 Filed 05/08/20 Page 2 of 36
the unconstitutional risk of harm that Petitioners face in detention.2 Dkt. 32 at 13. In denying Petitioners’ motion, the Court emphasized the “narrow reach” of its order and acknowledged the possibility that Petitioners could prove their entitlement to release with a more developed factual record. Id.
Petitioners now file this second motion for a preliminary injunction, urging the Court to order their release in light of additional evidence showing their imminent risk of injury in detention. A month has now passed since Petitioners’ first motion for a preliminary injunction, and Respondents continue to fail to implement adequate measures to minimize the risk of a COVID-19 outbreak at Folkston. On May 4, 2020, ICE publicly confirmed the first known case of COVID-19 among the detained population at Folkston.
Petitioners also seek injunctive relief compelling Respondents to implement measures to protect Petitioners as long as they are in custody. While Petitioners contend that release remains the sole remedy to prevent irreparable harm to them, there are immediate steps this Court can and should take pursuant to the Fifth Amendment and 28 U.S.C. § 1331 to mitigate risk to Petitioners if they remain in custody, including ordering Respondents to comply with provisions of the Centers for Disease Control and Prevention (“CDC”) Guidance; review the necessity of Petitioners’ confinement; and report certain data to ensure compliance.
I. FACTUAL BACKGROUND As of May 8, 2020, the COVID-19 pandemic has infected almost four million people and taken over 271,637 lives globally, including nearly 1.3 million confirmed cases and 76,942 deaths
2 The Court interpreted Petitioners’ claim for injunctive relief as arising under Rule 65, which provides no independent cause of action; however, the broad injunctive authority of the Court to enjoin unconstitutional action arises under the Fifth Amendment and 28 U.S.C. § 1331. See infra, Section II.A.5.
2

Case 5:20-cv-00046-LGW-BWC Document 41-1 Filed 05/08/20 Page 3 of 36
in the United States and 31,624 cases and 1,351 deaths in Georgia.3 COVID-19 is highly contagious and can be transmitted through respiratory droplets or aerosolized particles from coughing, sneezing, talking, breathing, or even flushing fecal matter in the toilet.4 Dkt. 4-4 ¶ 7; see also Ex. 1 ¶ 5a.5 It can require hospitalization and the use of a ventilator; may result in many months of recovery6 from long-term illness or organ damage; and can even lead to death. There is no known vaccine or cure. Dkt. 4-3 ¶¶ 5, 7; Dkt. 4-4 ¶¶ 6, 10. Diligent hand hygiene and social distancing—staying at least six feet away from all other people—are the only known ways to avoid exposure. Dkt. 4-3 ¶¶ 5, 9, 11; Dkt. 4-4 ¶ 11; Dkt. 4-5 ¶¶ 11, 22. A. Detention Endangers Petitioners and They Must Be Released
Petitioners have chronic medical conditions—including diabetes, heart and lung disease, neurological conditions, and compromised immune systems—that put them at high risk of lifethreatening cases of COVID-19. See generally Dkt. 4-9 to 4-11; Dkt. 37-5 to 37-7; see also Dkt. 4-3 ¶¶ 6, 8; Dkt. 4-4 ¶¶ 4-5; Dkt. 4-5 ¶ 5.
1. Continued Detention Puts Petitioners at High Risk Continued detention at Folkston puts Petitioners at imminent risk of COVID-19 exposure. Detention centers are particularly susceptible to rapid spread of infectious disease due to their congregate nature. Dkt. 4-3 ¶¶ 11, 12, 21; Dkt. 4-5 ¶¶ 19-20; Dkt. 4-6 ¶ 5. As more information is revealed from detention centers nationwide, it appears more likely that COVID-19 has infected
3Worldometer: Coronavirus, https://www.worldometers.info/coronavirus/#countries (last visited May 8, 2020); Georgia Department of Public Health COVID-19 Daily Status Report (last visited May 8, 2020), https://dph.georgia.gov/covid-19-daily-status-report. The number of cases is likely an underestimate “due to lack of availability of testing” in the United States. Dkt. 4-3 ¶ 3. 4See Lisa Brosseau, Commentary: COVID-19 transmission messages should hinge on science, U. Minn. Ctr. for Infectious Disease Res. & Pol’y (Mar. 16, 2020), https://bit.ly/2VOjKeg. 5 Exhibit 1 to this Memorandum is the Declaration of Dr. Homer Venters, attached to the concurrently-filed Declaration of Hillary Li. 6 David Templeton, Recovery from COVID-19 can take months or longer, local health experts say, Pittsburgh Post-Gazette (Apr. 28, 2020), https://bit.ly/3aQ646w.
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Case 5:20-cv-00046-LGW-BWC Document 41-1 Filed 05/08/20 Page 4 of 36
more detained people at Folkston than are currently reported.7 A recent study estimates that,
assuming a moderate rate of transmission, approximately 77% of the detained population, or about
600 people, at Folkston will be infected within 90 days of the date the first detained person at the
facility was infected. Dkt. 37-11 (data set available at www.icecovidmodel.org, which contains the
source data for the report). The current situation at Otay Mesa Detention Center in California
provides a chilling example. ICE reported its first case of COVID-19 at Otay Mesa Detention
Center on April 4, 2020.8 Only one month later, the number of confirmed cases had skyrocketed
to at least 132, and Otay Mesa had announced its first COVID-19-related death.9 Folkston reported
its first case of COVID-19 on May 4, 2020.10 Respondents must act now in order to avert a similar
public health crisis with irreversible consequences at Folkston. Detention center staff, ICE officers,
contractors, vendors, and legal visitors continue to enter and exit on a daily basis, and ICE
continues to transfer immigrants to Folkston. See Dkt. 30-2 ¶¶ 4-5; Dkt. 30-3 ¶¶ 4-5; Dkt. 30-4 ¶
6; Dkt. 37-5 ¶ 9; Dkt. 37-6 ¶ 21; Dkt. 37-7 ¶ 22; Dkt. 37-8 ¶ 8; Dkt. 37-10 ¶ 11 (describing new
detained people being brought into Folkston during the COVID-19 outbreak). Folkston also
continues to disregard basic CDC requirements for maintaining cleanliness, limiting transfers, and
7 See, e.g., Janet McConnaughey, Coronavirus: Nearly Entire Louisiana Prison Dorm Tests Positive for COVID-19, AP (May 4, 2020), https://bit.ly/3friVQ4 (after 39 women in a dorm at a prison first showed symptoms, universal testing was done and 192 out of 195 women in the dorm tested positive, and dozens more developed symptoms shortly); Jonathan Mattise, 1,299 inmates test positive for virus at Tennessee prison, Associated Press (May 1, 2020), https://apnews.com/5d0dde8eaa0385c9fd97e1545a5857da (1,299 out of 2,444 incarcerated individuals infected with COVID-19). 8 Compare ICE Guidance on COVID-19 (updated Apr. 3, 2020), https://web.archive.org/web/20200404085129/https://www.ice.gov/coronavirus#tab1 (reporting no confirmed cases at Otay Mesa) with ICE Guidance on COVID-19 (updated Apr. 4, 2020) https://web.archive.org/web/20200407091052/https://www.ice.gov/coronavirus (reporting one confirmed case at Otay Mesa). 9 Jennifer Lothspeich, 1st COVID-19 related death of Otay Mesa Detention Center detainee confirmed, CBS8 (May 6, 2020), https://bit.ly/2SHTVul; ICE Guidance on COVID-19 (last updated May 7, 2020), https://www.ice.gov/coronavirus. 10 See ICE Guidance on COVID-19, supra n.9.
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Case 5:20-cv-00046-LGW-BWC Document 41-1 Filed 05/08/20 Page 5 of 36
enforcing social distancing, see infra Section I.B. It is only a matter of time before COVID-19 touches Petitioners. Dkt. 4-3 ¶¶ 10, 15; Dkt. 4-4 ¶¶ 13-15; Dkt. 4-5 ¶ 6.
Folkston is ill-equipped to address this imminent threat, as demonstrated by its track record of failing to provide even basic medical care to detained people including Petitioners. Dkt. 36 ¶¶ 67-73 (collecting sources); Dkt. 4-8 ¶¶ 28-29; Dkt. 4-7 ¶¶ 15-17; Dkt. 4-9 ¶¶ 13, 15; Dkt. 4-10 ¶ 8; Dkt. 4-11 ¶¶ 13-15, 17; Dkt. 37-6 ¶¶ 4-5; Dkt. 37-7 ¶ 11; Dkt. 30-4 ¶ 4; see also Ex. 1 ¶¶ 13-39 (chronicling ICE’s failure to respond appropriately to COVID-19 since March 2020). Making matters worse, Folkston is geographically isolated from local hospitals with the capacity to treat COVID-19. Dkt. 4-5 ¶¶ 12-14.
2. Any Custody Reviews Respondents Have Conducted for Petitioners Have Been Largely Illusory
Release from custody is both the most effective public health measure to curb transmission of COVID-19 and the only viable strategy to protect medically vulnerable people like Petitioners. If release is not possible, at a minimum detention centers must strictly adhere to CDC Guidance.11 See Dkt. 4-3 ¶¶ 20a-g (explaining that ICE’s March 27 guidelines12 are ineffective in part because they fall short of CDC Guidance); Dkt. 4-4 ¶¶ 9, 11, 16, 20 (noting that efficacy of ameliorative measures requires strict adherence and availability of PPE and other hygiene supplies); see generally Ex. 1 (identifying the CDC Guidance as an appropriate baseline for best practices where detention is necessary) cf. Dkt. 4-5 ¶¶ 8-9 (explaining why CDC-recommended isolation can cause
11 “CDC Guidance” throughout refers to the “Printer friendly version” of Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctionaldetention.pdf. 12 ICE’s current COVID-19 guidance incorporates these March 27 guidelines. U.S. Immigration & Customs Enforcement, ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020), at 5, https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf.
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additional harm). ICE recognizes the ongoing danger of detention; on April 4, 2020, it directed
ICE field offices to conduct custody re-evaluations for people with some medical conditions.13
Under this one-time re-evaluation, ICE released fewer than 700 medically vulnerable immigrants;
Respondent Albence confirmed to the House Oversight Committee that the review process “has
been completed.”14 Approximately 29,000 men and women remain in immigration detention.15
Under the April 4 ICE guidance, ICE field office directors were instructed to determine on
a “case-by-case” basis the need for continued detention of medically vulnerable people.16
However, this process was inherently flawed because it impermissibly considered the impact of
individual custody decisions on deterring future migration generally.17 In addition, the custody re-
evaluation guidance gave significant discretion to individual officers to continue custody,
regardless of a person’s medical conditions, and did not require that the presence of a high risk
medical condition be the “determinative” factor for assessing the appropriateness of release.18
Moreover, the guidance allowed ICE officers with no medical training to identify potentially high
risk individuals without seeking medical evaluations or otherwise consulting any medical
professionals as part of the screening process. See Ex. 1 ¶ 25.
13 Id. at 14; U.S. Immigration & Customs Enforcement, Updated Guidance: COVID-19 Detained Docket Review (Apr. 4, 2020), https://www.ice.gov/doclib/coronavirus/attk.pdf. 14 House Committee on Oversight & Reform, DHS Officials Refuse to Release Asylum Seekers and Other Non-Violent Detainees Despite Spread of Coronavirus (Apr. 17, 2020), https://oversight.house.gov/news/press-releases/dhs-officials-refuse-to-release-asylum-seekersand-other-non-violent-detainees. 15 ICE, Detention Management, https://www.ice.gov/detention-management#tab2 (last updated May 2, 2020). 16 See ERO COVID-19 Pandemic Response Requirements, supra n. 12, at 14 (referring to a directive from April 4, 2020 guidance to re-evaluate custody); see also Updated Guidance: COVID-19 Detained Docket Review, supra n. 13. 17 DHS Officials Refuse to Release Asylum Seekers, supra n. 14 (“Acting Director Albence asserted that releasing non-violent immigrants to protect them from being infected and sickened with coronavirus could give the impression that the Administration is “not enforcing our immigration laws,” which would be a “huge pull factor” and create a “rush at the borders.”). 18 Updated Guidance: COVID-19 Detained Docket Review, supra n. 13.
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ICE is violating its own guidance in the case of Petitioners. Despite their high-risk status, Petitioners do not believe that they were identified for custody re-evaluation at all under this process, let alone that they received meaningful individualized custody reviews. They have not received specialized medical evaluations related to COVID-19 and were not given the opportunity to provide external records relevant to their risk of complications from COVID-19 to supplement potentially incomplete ICE medical records. See, e.g., Dkt. 4-11 ¶ 19; Dkt. 37-5 ¶ 11; Dkt. 37-6 ¶ 26; Dkt. 37-7 ¶ 25; Dkt. 37-8 ¶ 3; Dkt. 37-9 ¶ 3. B. Detention Remains Dangerous Because Respondents Have Failed to Implement CDC
Guidance Respondents are failing to take adequate steps to protect Petitioners from the risk of COVID-19 while they remain within Folkston, despite Petitioners’ filing of this lawsuit one month ago warning of the risks of serious harm posed by their continued detention at Folkston. Respondents recognize the CDC Guidance as an authoritative source regarding the standard of care required of them during the COVID-19 pandemic. See generally Dkt. 29-1; Dkt. 29-2. ICE guidance states that ICE detention facilities “must” comply with the CDC Guidance, which emphasizes the need for social distancing, proper hygiene and cleaning practices, access to testing, individual isolation of people with the virus, and quarantine of those who are exposed.19 However, reports from detained individuals and their attorneys indicate that conditions at Folkston continue to fall short of this guidance in many respects. 1. Social distancing The CDC Guidance directs social distancing of “6 feet between all individuals, regardless of the presence of symptoms” at all times and locations. CDC Guidance at 4, 11. The CDC also
19 ERO COVID-19 Pandemic Response Requirements, supra n. 12, at 5-6; see generally CDC Guidance, supra n. 11.
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advises that after an infected person has been present in a room for more than a few minutes while coughing or sneezing, air inside the room may remain potentially infectious.20 Respondent Gartland stated in his declaration to the Court, “[t]o stop the spread of COVID-19, Folkston has implemented a program of enhanced social distancing” by reducing pod unit counts “to the greatest extent possible.” Dkt. 29-1 ¶ 9. He further attested that “detainees [at Folkston] have been afforded every opportunity . . . to practice social distancing measures,” and detainees “are repeatedly advised by staff to practice social distancing measures.” Id.
However, Respondents cannot possibly implement social distancing at Folkston. See, e.g., Dkt. 37-5 ¶ 7 (“[T]here is no social distancing inside the facility.”); Dkt. 37-6 ¶¶ 8-10 (“We must either eat in our bunks” that are “approximately 2 to 3 feet” apart, or “at tables where the chairs are close to each other”); Dkt. 37-7 ¶¶ 15-18 (“I share a bunk bed with another person who sleeps an arm’s length away,” and “It is impossible to stay six feet apart from everyone we pass because the hallways are not big enough”); Dkt. 37-9 ¶¶ 4-5, 8-9 (“The seats at the tables [in the common space] are about two feet away from each other,” and “[w]henever we leave the pod unit, . . . we line up close to each other.”); Dkt. 37-10 ¶ 13 (“It is impossible to practice social distancing in my dorm unit. I try to stay in my cell unit as much as possible, but my cell mate and I cannot realistically be six feet away from each other.”). Multiple times a day, detained people at Folkston have no opportunity to stay a safe distance away from other people. They continue to live and eat in extremely close quarters, and share showers and toilets. See e.g., Dkt. 37-6 ¶¶ 8-10, 13; Dkt. 37-
20 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), Healthcare Infection Prevention and Control FAQs for COVID-19 (last visited Apr. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-faq.html (“[F]or a patient who was coughing and remained in the room for a longer period of time [than a few minutes] . . . the risk period” is longer than a few minutes, and advising compliance with CDC’s general guidance on clearance rates under differing ventilation conditions, found at Centers for Disease Control and Prevention, Infection Control, Appendix B. Air (last reviewed July 22, 2019), https://www.cdc.gov/infectioncontrol/guidelines/environmental/appendix/air.html#tableb1).
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7 ¶¶ 15-18; Dkt. 37-9 ¶¶ 4-6, 8-9; Dkt. 37-10 ¶¶ 12-13. In some cases, they even continue to be housed in crowded, open dorms with bunk beds lined up no more than 2-3 feet apart. See Dkt. 376 ¶¶ 8-9. Petitioner Kumar reports in his May 4, 2020 declaration that he is housed in such an open dormitory with approximately 58 other detainees. Id.
For some detained people at Folkston, housing conditions have worsened since the TRO hearing on April 15, 2020, and Respondents have regularly shuffled detained people between housing units with no regard for the possibility that some units could be contaminated with COVID-19. For example, on Friday, May 1, 2020, Petitioner Fernandez and others in his pod unit were forced to transfer from pod unit B5 to pod unit B3, despite the concerns they voiced regarding the risk that pod unit B3 could have been contaminated with COVID-19. See Dkt. 37-9 ¶ 4. Before Petitioner Fernandez was moved, he was in a cell by himself. He is now sharing a bunk bed with another person, in a smaller cell than before. Id. ¶¶ 5-6.
In addition, the common areas shared by detained people in their housing units are too small and crowded to allow for people to remain six feet apart. See, e.g., Dkt. 37-6 ¶ 9; Dkt. 37-7 ¶ 16. The people detained at Folkston also have no choice but to touch many shared items, such as microwaves, phones, door handles, water containers, and televisions. See Dkt. 37-7 ¶ 17; Dkt. 37-9 ¶ 8. Detained people are still required to line up close together to go to the cafeteria, recreational area, medical unit, and other places, often standing so close to one another that they are “back-to-belly” and passing within six feet of other detained people when they are walking to and from the unit. Dkt. 37-6 ¶ 10; see also Dkt. 37-7 ¶ 18; Dkt. 37-9 ¶ 9.
2. Cleaning The CDC Guidance identifies “intensified cleaning and disinfecting procedures” to be used during the pandemic, including for frequently touched surfaces, and “lifting restrictions on undiluted disinfectants.” CDC Guidance at 9, 17-19. Respondents must also take recommended
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precautions while using these products, such as wearing gloves and ensuring good ventilation. Id. At Folkston, detained people are responsible for cleaning their living spaces and common
areas, but often are not provided with adequate—or, in some cases, any—cleaning supplies or gloves. Dkt. 30-4 ¶ 11; Dkt. 37-6 ¶¶ 14-15; Dkt. 37-7 ¶¶ 19-20; Dkt. 37-8 ¶ 11; Dkt. 37-9 ¶ 6. Detainees report that the facility often runs out of cleaning supplies, Dkt. 37-7 ¶ 19, and the cleaning solutions provided are often significantly diluted or not proper disinfectants. Dkt. 37-7 ¶ 20; Dkt. 37-8 ¶ 11; Dkt. 37-10 ¶ 17 (Petitioner Arriaga describing that the only product that he received to clean his cell is a glass cleaner). Due to the inadequate provision of cleaning supplies, Petitioners Fernandez and Brown reported that they had no choice but to clean their cells with soap or shampoo provided for personal hygiene. Dkt. 37-7 ¶ 19; Dkt. 37-9 ¶ 6. Folkston also commonly fails to provide detained individuals with gloves or face masks to use while cleaning. Dkt. 37-6 ¶¶ 14-15; Dkt. 37-7 ¶ 20.
3. Transfers of Detained People Under the CDC Guidance, transfers of detained individuals between detention facilities with confirmed cases21 should be “suspend[ed]” unless “necessary.” CDC Guidance at 14. If a transfer is “absolutely necessary,” detention centers must take specific measures to screen and, where needed, isolate or quarantine, new intakes. Id; see infra Section I.B.7. New people continue to be moved in and out of Folkston during the COVID-19 outbreak. Folkston has received new intakes transferred from other facilities as late as the second half of
21 Similarly, even before a case of COVID-19 is confirmed inside a facility, the CDC Guidance requires facilities to “[r]estrict transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.” See CDC Guidance, supra n. 11, at 9.
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April.22 Detained immigrants have observed new people being moved in and out of Folkston as well, throughout the last month, and based on the limited information available to Petitioners, Respondents have not been complying with CDC Guidance related to screening, isolation, and quarantine of new intakes. Dkt. 30-2 ¶¶ 4-5; Dkt. 30-3 ¶¶ 4-5; Dkt. 30-4 ¶ 6; Dkt. 37-6 ¶ 21 (Folkston is “still consistently bringing new detainees into the detention center despite the risks of disease transmission, so problems relating to overcrowding are unlikely to change anytime soon,” and reporting a “bus load of new detainees” from Florida); Dkt. 37-7 ¶ 22; Dkt. 37-8 ¶ 8; Dkt. 3710 ¶ 11 (ten days ago guards attempted to place new transfers into Petitioner Arriaga’s dorm unit and only agreed not to after Petitioner Arriaga and his dorm-mates protested their placement, after which the new intakes were mixed in with other new detainees who had been transferred from other places ). As recently as May 4, 2020, Petitioner Benavides reported that she observed new people being brought into the building she is in just a few days prior. Dkt. 37-8 ¶ 8 (Petitioner Benavides saw new intakes entering on May 2 and an officer told her that as far as he knew, Folkston was “not going to stop” transferring in new detainees).
The frequency with which Folkston has been accepting transfers, particularly in a location with limited access to nearby medical treatment facilities, suggests that Respondents have been transferring new intakes to Folkston as a routine matter, rather than when truly necessary for the reasons permitted in the CDC Guidance. See CDC Guidance at 9. When Petitioners first moved for emergency relief, asserting that Folkston’s continued acceptance of new transfers put Petitioners at increased risk of exposure, there were no identified cases among the detained
22 Monique O. Madan, ‘It’s like a Shell game’: Immigration lawyers move to close ICE loophole in federal ruling, Miami Herald (May 2, 2020), https://hrld.us/35wS7td (noting that ICE transferred people to Folkston from south Florida detention facilities, including one facility with confirmed cases of COVID-19 (Krome Detention Center) sometime after April 13, 2020).
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population at Folkston. See Dkt. 4-1 at 3. Knowing now that transfers continue unabated, it comes as no surprise that COVID-19 has entered the facility, and it is even more concerning that the transfers continue.
4. Communication with Detained People The CDC Guidance requires Respondents to post signage throughout Folkston regarding COVID-19 symptoms, risk mitigation practices, and instructions to report symptoms to staff. CDC Guidance at 6, 10, 13. These materials need to be accessible to non-English speakers and those with low literacy or disabilities. Id. The CDC also requires ongoing communication with detained people about risk reduction and COVID-19 transmission in the facilities. CDC Guidance at 5, 6. Petitioners report that ICE has never informed them of COVID-19, advised them of recommended hygiene or social distancing practices or notified them of the number of confirmed COVID-19 cases at Folkston. Dkt. 37-6 ¶ 19 (“Folkston refuses to release this information to us.”); Dkt. 37-7 ¶ 24 (“The most the detention center staff has told me about COVID-19 is to wash my hands.”); Dkt. 37-8 ¶ 14 (“I have not observed any new signs or notices relating to COVID-19, and no one has provided me with any other information about COVID-19.”). Detained people at Folkston have reported that when they asked for explanations and information around COVID-19, or expressed their concern about the risk of COVID-19, guards and staff have responded by threatening to take away their possessions and put them in solitary confinement. See, e.g., Dkt. 376 ¶ 28 (after a detainee approached a guard expressing concern about working in the kitchen, the guard “threatened him to not raise any more questions or issues relating to COVID-19” or the guard would “send him to Bravo, a high-security building, if he continued to ask questions”). Notices or flyers about COVID-19 are sometimes provided only in English, and some Petitioners cannot understand them. Dkt. 4-11 ¶ 12. Petitioner Fernandez also reported that while Folkston
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previously put up signs about handwashing in his pod unit, many of them were taken down around April 27, 2020. Dkt. 37-9 ¶ 12.
5. Response to Symptoms of COVID-19 The CDC Guidance requires that “[a]s soon as” symptoms of COVID-19 develop, detainees should “wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.” CDC Guidance at 15. The symptomatic individual should receive immediate “medical evaluation and treatment” including an assessment of their risk factors for severe COVID-19. Id. at 23. Cohorting (medically isolating or quarantining as a group) should be used only if there are “no other available options”; if cohorting is required, confirmed cases (with laboratory confirmed diagnoses), suspected cases (those who are symptomatic who have not yet been confirmed through a test), and asymptomatic close contacts (those who have come within six feet of an infected individual in the last fourteen days) should all be cohorted separately from each other. Id. at 15-16, 19-20. Despite this guidance, Respondents routinely ignore reports of COVID-19 symptoms at Folkston. Detained people at Folkston report that symptomatic individuals in the general population are regularly ignored and go unseen by medical staff, and are not moved by the detention center to other units. Dkt. 4-8 ¶ 28; Dkt. 37-5 ¶¶ 9-10 (observing detained people “coughing and nothing is being done to quarantine them or even test them.”). The CDC also prioritizes testing any symptomatic person in a congregate setting.23 Testing is critical because it enables identification of those who have been exposed to the virus. See Dkt. 4-4 ¶ 9. It is likely that symptomatic people at Folkston have not been tested or even evaluated by
23 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), Evaluating and Testing Persons for Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-criteria.html (updated April 27, 2020), cited in CDC Guidance, supra n. 11, at 22.
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a medical provider. As of May 7, 2020, ICE had only tested 1,528 detained people in their custody across the country, 49% of whom tested positive.24 Respondent Albence reported to Congress on April 17, 2020 that ICE would “certainly do more testing” if it had more test kits.25 Therefore, if Folkston does have enough kits to test every symptomatic individual, then it should do so; it is likely to fail to, though, either because it lacks a sufficient number of tests or because symptomatic people are not seen by medical staff.
6. Other Failures to Implement CDC Guidance Respondents have failed to implement other aspects of the CDC Guidance at Folkston. Dkt. 36 ¶¶ 113-119, 140-143, 152-156. First, detained immigrants at Folkston receive soap for personal use only about once or twice a week, and no additional soap is available in the showers or pod units. Compare CDC Guidance at 7-8, 10 with Dkt. 30-3 ¶ 11; Dkt. 30-4 ¶ 10; Dkt. 37-6 ¶ 11; Dkt. 37-7 ¶ 14. Petitioners report that facility staff are unreceptive to requests for additional soap. Dkt. 30-4 ¶ 10. They also have limited or no access to hand sanitizer. Compare CDC Guidance at 7-8, 10 with Dkt. 4-10 ¶ 16; Dkt. 37-6 ¶ 11; Dkt. 37-7 ¶ 21; Dkt. 37-8 ¶ 13. Second, staff use of personal protective equipment (“PPE”) is inconsistent, even during close interactions, and detained people often do not receive PPE at all. Compare CDC Guidance at 8-10, 13-14, 16, 18, 20, 23-26, Table 1, with Dkt. 30-1 ¶ 4; Dkt. 37-5 ¶ 8; Dkt. 37-6 ¶ 17; Dkt. 37-7 ¶ 13; Dkt. 37-8 ¶¶ 16-17; Dkt. 37-9 ¶ 14; Dkt. 37-10 ¶ 10. Staff failure to take proper precautions in close interactions is particularly concerning since they are the primary vector for spread of the disease to Folkston from their communities. When detained people do receive PPE, they must use the same PPE for many days or weeks and receive nothing to use to sanitize it. Dkt. 37-6 ¶ 22; Dkt. 37-7 ¶ 13; Dkt. 37-9 ¶ 14. Petitioner Benavides reported that she has been denied both a face mask and gloves when she has
24 ICE Guidance on COVID-19, supra n. 9 (753 positives out of 1,528 total tests). 25 DHS Officials Refuse to Release Asylum Seekers, supra n. 14.
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requested them. Dkt. 37-8 ¶ 17. Even those detained people who should use PPE in the scope of their work at Folkston do not consistently receive it. See Dkt. 37-6 ¶ 14. Third, staff at Folkston are inconsistent in performing even the minimal screening of visitors that ICE purports to have implemented. Compare CDC Guidance at 5, 13-14, 26 with Dkt.4-7 ¶¶ 7-8, 12; Dkt. 30-1 ¶ 3. As recently as April 10, 2020, an attorney entering Folkston reported that these screenings were not consistently conducted in full or properly – for example, a guard filled out a questionnaire on her behalf without asking her the screening questions. Dkt. 30-1 ¶ 3. Finally, Respondents routinely provide medically vulnerable people with incorrect medications or care and delay or ignore medical requests. Compare CDC Guidance at 16, 2326 with Dkt. 4-10 ¶ 8; Dkt. 30-4 ¶ 4; Dkt. 376 ¶¶ 4-5; Dkt. 37-7 ¶ 11. For instance, diabetic Petitioners are not receiving the special diets they need to manage their diabetes and are not consistently provided with medically necessary insulin. Compare CDC Guidance at 16, 2327 with Dkt. 4-10 ¶ 8; Dkt. 37-7 ¶ 11. And Petitioner Kumar, who has tuberculosis, was not provided with necessary medication for more than six months after he was brought to Folkston and, during this time, unwittingly passed tuberculosis to his cellmate. Dkt. 37-6 ¶ 5. On April 14, 2020, he stopped receiving medication for tuberculosis, even though he is still actively symptomatic. Id. ¶ 4. Petitioner Arriaga found the lack of medical care for his lupus at Folkston so egregious that he agreed to voluntary departure. Dkt. 37-10 ¶ 6.
7. CDC Guidance That Must Be Implemented Given Confirmed COVID-19 Within Folkston
Now that COVID-19 is confirmed within Folkston, Respondents must also comply with portions of the CDC Guidance relevant to addressing this situation—including but not limited to
26 See also Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), People Who Are at Higher Risk for Severe Illness (last reviewed Apr. 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html, cited in CDC Guidance, supra n. 11, at 2, 16, 23. 27 See also People Who Are at Higher Risk for Severe Illness, supra n. 26.
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immediately responding to reports of symptoms of COVID-19, quarantining people who have been exposed to a known or suspected case of COVID-19 and screening people in units where COVID19 has been identified.
For example, the CDC Guidance requires that, for transfers of detained people between detention centers that are “absolutely necessary,” the facilities must conduct specific screenings for new entrants and immediately place any symptomatic intakes in medical isolation. CDC Guidance at 10, 14. Where COVID-19 is already suspected to be present, the CDC advises quarantining of all new intakes for 14 days before they enter the general population. CDC Guidance 14. CDC Guidance also requires that facilities “[i]mplement daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that … detained individuals are not notifying staff of symptoms.” CDC Guidance at 22. It requires that “detained persons who are close contacts of a confirmed or suspected COVID-19 case (whether the case is another incarcerated/detained person, staff member, or visitor)” be placed under quarantine for 14 days. Facilities should “make every possible effort” to quarantine these people individually. Cohort quarantine for close contacts of a COVID-19 case “should only be practiced if there are no other available options” because it can cause COVID-19 to be transmitted to people who are not yet infected; if quarantined individuals are cohorted, they must wear face masks at all times for this reason. Id. at 15-16, 20. C. Releasing Petitioners, and to a Lesser Extent, Ordering Compliance with CDC
Guidance, Would Reduce the Devastating Public Health Impact of COVID-19 on Georgia Petitioners’ continued detention not only threatens their own health but also subjects all other detained individuals and staff at Folkston to an increased risk of exposure to COVID-19. See Dkt. 4-3 ¶¶ 12, 25; Dkt. 4-6 ¶ 7; Dkt. 4-5 ¶¶ 15, 17. And the risks to staff are great: in the last week, two diabetic guards employed by LaSalle Corrections at a Louisiana ICE detention center
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died after contracting COVID-19. The facility reportedly had failed to provide staff with PPE and “told employees they would be required to work 12-hour shifts, seven days a week due to staff shortages cause by a ‘high number of positive COVID 19 staff cases.’”28 The release of vulnerable individuals mitigates the overall risk of a COVID-19 outbreak in any detention facility by reducing the total number of detained individuals, thereby permitting greater social distancing and reducing the staff’s risks and workload. Dkt. 4-6 ¶ 9; Dkt. 4-3 ¶¶ 17, 24-27; Dkt. 4-5 ¶ 22.29 At a minimum, ordering strict compliance with CDC Guidance is essential to protect Petitioners, as well as other detained individuals and staff, while this Court considers the merits of the case.
An outbreak of COVID-19 at Folkston would likely overwhelm local health infrastructure. Dkt. 4-5 ¶¶ 14-15. The closest hospitals to Folkston are either critical access hospitals without the necessary facilities or regional hospitals that serve many counties and could quickly become overwhelmed in the event of a localized outbreak. See, e.g., Dkt. 36 ¶¶ 85-87. If particularly vulnerable detained individuals like Petitioners fall critically ill, their need for intensive medical care would even further strain local hospitals. Dkt. 4-3 ¶ 25; Dkt. 4-4 ¶ 5 (fatality rates increase as hospitals become overburdened); Dkt. 4-5 ¶¶14-15.
The emergency nature of this situation cannot be overstated: because they are detained at Folkston, Petitioners are at imminent risk of exposure to a virus that will likely cause them severe illness, long-term organ damage, or death, and they are unlikely to be able to access life-saving medical treatment. Civil detention with such odds of grave harm cannot be constitutional. Petitioners implore the Court to grant an emergency writ of habeas corpus or injunctive relief ordering their immediate release or ordering Respondents to review the necessity of Petitioners’
28 Nomaan Merchant, 2 guards at ICE jail die after contracting coronavirus, AP (Apr. 29, 2020), https://apnews.com/20a500736171a977c7aba10c1d077476. 29Already, prisons and detention centers in other countries and many U.S. states are releasing people from custody or reducing new arrests. See, e.g., Dkt. 36 ¶ 58 (collecting examples).
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custody; comply immediately with CDC Guidance; and demonstrate the efficacy of these measures in eliminating the risk to Petitioners with regular reporting to the Court.
II. ARGUMENT A preliminary injunction is warranted when the movant demonstrates: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury; (3) threatened injury that outweighs any harm to the opposing party; and (4) the injunction would not undermine the public interest. Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995). “Where, as here, the ‘balance of the equities weighs heavily in favor of granting the [injunction]’ Petitioners need only show a ‘substantial case on the merits.’” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1298 (11th Cir. 2005) (alteration in original) (citation omitted). Petitioners easily satisfy all four factors.
A. Petitioners Are Likely to Succeed on the Merits All individuals in immigration custody, including those with prior criminal convictions, are civilly detained and thus entitled to certain protections under the Fifth Amendment Due Process Clause. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Respondents’ continued detention of Petitioners at Folkston during the COVID-19 pandemic: (1) violates Petitioners’ right to be free from punishment; (2) constitutes deliberate indifference to a substantial risk of serious harm to Petitioners; and (3) violates the Accardi doctrine. To redress these constitutional injuries, Petitioners seek relief available to them, either through a writ of habeas corpus or injunctive relief under the Fifth Amendment.
1. Petitioners’ Continued Detention During the COVID-19 Pandemic Constitutes Impermissible Punishment.
The Fifth Amendment Due Process Clause, like the Fourteenth Amendment, prohibits punishment of people in civil custody. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979); Magluta v.
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Samples, 375 F.3d 1269, 1273 (11th Cir. 2004). Civilly detained people “are generally ‘entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.’” Marsh v. Fla. Dep’t of Corr., 330 F. App’x 179, 182 (11th Cir. 2009) (quoting Youngberg v. Romeo, 457 U.S. 307, 322 (1982)).
To establish that a particular condition or restriction of detention constitutes impermissible punishment, a petitioner must show either (1) an expressed intent to punish; or (2) lack of a reasonable relationship to a legitimate governmental purpose, from which an intent to punish may be inferred. See Wolfish, 441 U.S. at 538-39. Absent explicit intent, courts must ask first “whether any ‘legitimate goal’ was served by the prison conditions” and second, “whether the conditions are ‘reasonably related’ to that goal.” Jacoby v. Baldwin County, 835 F.3d 1338, 1345 (11th Cir. 2016) (citation omitted). “[I]f conditions are so extreme that less harsh alternatives are easily available, those conditions constitute ‘punishment.’” Telfair v. Gilberg, 868 F. Supp. 1396, 1412 (S.D. Ga. 1994) (citing Wolfish, 441 U.S. at 539 n.20); see also Wolfish, 441 U.S. at 538 (punishment inferred when a restraint “appears excessive” in relation to its stated purpose).
Here, Respondents have openly admitted to an illegitimate purpose for continuing to detain immigrants during the COVID-19 pandemic: general deterrence. Supra n. 17 (Respondent Albence stated on April 17, 2020 that ICE declined to release more people during the pandemic to avoid the impression that it is “not enforcing our immigration laws,” which would be a “huge pull factor” for future migration). “[G]eneral deterrence [is] reserved for the criminal system alone.” Kansas v. Hendricks, 521 U.S. 346, 373 (1997) (Kennedy, J., concurring); see also id. at 361-62 (majority opinion); Wolfish, 441 U.S. at 539 n.20 (similar). The government has no legitimate interest in using civil immigration detention to deter future migration. R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 188-90 (D.D.C. 2015) (relying on Hendricks to reject government argument that deterrence of mass migration can justify civil detention, and noting the government “conced[ed] that it ha[d]
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“no ‘federal cases on point’ to support” its argument). Moreover, Petitioners’ continued detention under the current conditions at Folkston lacks
a reasonable relationship to any legitimate governmental purpose, bolstering the inference that their detention is punitive. The threat of serious illness, life-altering complications, and death that COVID-19 poses to Petitioners is not reasonably related to, and vastly outweighs, any purported government interest in Petitioners’ civil confinement. Detention inherently increases the chance of exposure to COVID-19.30 And there is no question that exposure to COVID-19 for people like Petitioners, who have certain co-morbidities identified by the CDC, is especially dangerous.31 “Preventing [Petitioners] from protecting their own health from a high risk of serious illness or death [by keeping them detained] does not reasonably relate to a legitimate governmental purpose and thus, violates the Fifth Amendment.” Vazquez Barrera v. Wolf, --- F. Supp. 3d ---, 2020 WL 1904497, at *5 (S.D. Tex. Apr. 17, 2020).
Nonetheless, Respondents continue to hold Petitioners under conditions of confinement at odds with public health guidance. As detailed above, Folkston is in widespread violation of CDC Guidance—among other things, they are completely ignoring symptoms of COVID-19 and even moving detained people to more crowded dorms in the middle of the pandemic as the virus enters the detention center. Supra Section I.B.1. As a stark illustration of the fact that detention at Folkston is punishment at this time, Petitioner Arriaga, who is married to a U.S. citizen, is “very
30 CDC Guidance, supra n. 11, at 2 (detained people live “within congregate environments, heightening the potential for COVID-19 to spread once introduced”); see also supra Section I.A.1. 31 Supra Section I.A.1; People Who Are at Higher Risk for Severe Illness, supra n. 26 (“Based on what we know now, those at high-risk for severe illness from COVID-19” include people with specified medical conditions); Basank v. Decker, 2020 WL 1481503, at *3 (S.D.N.Y. Mar. 26, 2020) (taking “judicial notice that, for people of advanced age, with underlying health problems, or both, COVID-19 causes severe medical conditions and has increased lethality,” because this fact is “not subject to reasonable dispute” (quoting, inter alia, Fed. R. Evid. 201(b))).
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afraid of contracting COVID-19 while in detention” because of his lupus and has given up fighting his immigration case in order to receive necessary medical care. Dkt. 37-10 ¶¶ 5-6. He “chose to do this because the medical care [he] has been receiving at Folkston is inadequate,” id. ¶ 6, despite CDC Guidance that people who are immunocompromised should “continue any recommended medications or treatments and follow the advice of [their] healthcare provider” in order to “[r]educe [their] risk of getting sick with COVID-19.”32 But he is stuck in limbo: his home country is not accepting any deportees due to the pandemic, but his requests for release have thus far been denied. Id. The conditions at Folkston are so harsh as to drive people to give up their legal rights in order to avoid serious harm from COVID-19. Under these circumstances, detaining Petitioners is excessive in relation to any countervailing government interest.
Finally, any government interest in detaining Petitioners can be easily satisfied with less harsh alternatives. Vazquez Barrera, 2020 WL 1904497, at *6. For fifteen years, ICE has used Alternatives to Detention (ATD), a “flight-mitigation tool that utilizes a combination of technology and strong case management” to facilitate compliance with release conditions including court appearances.33 Given the option of using ATDs, continuing to detain Petitioners is of little to no value in furthering the underlying reason for immigration detention: ensuring appearances at immigration court hearings. Demore v. Kim, 538 U.S. 510,531 (2003) (Kennedy, J., concurring) (noting the “ultimate purpose” of detention is “premised upon . . . deportability”).
32 People Who Are at Higher Risk for Severe Illness, supra n. 26. 33 DHS, U.S. ICE Budget Overview, FY 2021 Congressional Justification, at ICE–O&S–165, https://www.dhs.gov/sites/default/files/publications/u.s._immigration_and_customs_enforcement .pdf. ATD “provides a high level of supervision,” “enhances ICE’s operational effectiveness,” and has “significant program success rates while operating at a low average daily cost.” Id. at 165, 171. ICE already uses ATD to monitor people “not suitable for detention” due to “significant medical issues.” Id. at 171. In 2014, the Government Accountability Office found that 95% of those on ATD with case management appeared at their final hearings and 99% appeared overall at all scheduled hearings. GAO-15-26, Alternatives to Detention, at 30 (Nov. 2014), https://www.gao.gov/assets/670/666911.pdf.
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Detaining Petitioners in the context of the pandemic amounts to punishment for the following reasons: Respondent Albence expressly acknowledged an improper purpose; the conditions at Folkston evince punitive intent; continued detention is not rationally related to a legitimate government purpose; and less harsh alternatives are readily available.
2. Petitioners’ Continued Detention During the COVID-19 Pandemic Amounts to Deliberate Indifference to a Substantial Risk of Serious Harm
“[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago Cty. Dep’t. of Soc. Servs., 489 U.S. 189, 199200 (1989). To satisfy due process, the government must provide detained individuals with basic necessities, such as adequate medical care, food, clothing, and shelter. Hamm v. Dekalb County, 774 F.2d 1567, 1573 (11th Cir. 1985). At a minimum, the Fifth Amendment prohibits deliberate indifference to a substantial risk of serious harm that would violate the Eighth Amendment in the post-conviction criminal context.34 City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, (1983); Hale v. Tallapoosa County, 50 F. 3d 1579, 1582 n.4 (11th Cir. 1995).
To demonstrate deliberate indifference, Petitioners must show they are exposed to a substantial risk of serious harm and that Respondents are aware of, yet are disregarding this risk “by failing to respond to it in an (objectively) reasonable manner.” Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d 611, 617 (11th Cir. 2007); Farmer v. Brennan, 511 U.S. 825, 834, 837-38
34 Individuals in civil immigration detention should not have to satisfy the Eighth Amendment’s requirement that a prison official have subjective knowledge of a substantial risk in order to establish a Fifth Amendment violation related to conditions of confinement. See Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (requiring only objective deliberate indifference), cert. denied, 139 S. Ct. 794 (2019); Darnell v. Pineiro, 849 F.3d 17, 32-36 (2d Cir. 2017) (same). The Eleventh Circuit has not squarely addressed this issue, and the court need not address it here because the evidence is clear that Respondents are aware of the substantial risk of serious harm to Petitioners.
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(1994). “Known noncompliance with generally accepted guidelines for inmate health strongly indicates deliberate indifference to a substantial risk of serious harm,” even if the guidelines are not mandatory. Hernandez v. County of Monterey, 110 F. Supp. 3d 929, 943 (N.D. Cal. 2015) (failure to comply with CDC guidelines regarding screening and monitoring for tuberculosis could indicate deliberate indifference); see also Holland v. Hanks, 1998 WL 93974, at *4 (7th Cir. 1998) (suggesting similar). The government may violate a detained person’s due process rights even where exercising its “best efforts,” if protective measures in place are not working. Thakker v. Doll, --- F. Supp. 3d ---, 2020 WL 2025384, at *6 (M.D. Pa. Apr. 27, 2020).
The government may violate the Eighth Amendment when it “ignore[s] a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993); see also id. at 34 (citing Gates v. Collier, 501 F.2d 1291, 1300 (5th Cir. 1974), which held that prisoners were entitled to relief under the Eighth Amendment when they showed, inter alia, the mingling of “inmates with serious contagious diseases” with other prison inmates).
Thus, the harm that Petitioners fear—i.e., that their confinement will result in a COVID19 infection that will seriously injure and possibly kill them—need not become a reality in order to establish a constitutional violation. Courts do not require a plaintiff to “await a tragic event” before seeking relief from a condition of confinement that unconstitutionally endangers them. See Helling, 509 U.S. at 33. “Nor does it matter that some inmates may not be affected by the condition, and that the harm is thus, in a sense, only potential harm. The Court has found an Eighth Amendment violation ‘even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed.’” Tittle v. Jefferson Cty. Comm’n, 10 F.3d 1535, 1543 (11th Cir. 1994) (Kravitch, J., concurring) (quoting
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Helling, 509 U.S. at 33). a. Substantial Risk of Serious Harm
Petitioners’ continued detention under conditions that fail to mitigate their risk of exposure to COVID-19 subjects them a substantial risk of serious harm. As explained above, COVID-19 will be effectively impossible to control in detention centers once introduced, and if Petitioners are infected with COVID-19, they risk hospitalization requiring intensive care and use of a ventilator, long-term organ damage, and even death. See supra Section I.A. COVID-19 is now confirmed to be present inside Folkston, even though there were no reported cases among the detained population a month ago. One can “only assume” that positive cases are undercounted, given that Respondents are failing to respond to reports of COVID-19 symptoms among the detained population. Hope v. Doll, No. 20 Civ. 562, ECF. No. 11 at 7-8 (M.D. Pa. Apr. 7, 2020).
b. Knowing Disregard of the Substantial Risk Where a risk is obvious, such as the threat posed to medically vulnerable people during an infectious disease outbreak, courts can presume that government officials are aware of the risk. See, e.g., Farmer, 511 U.S. at 842. Moreover, there is ample evidence that Respondents have actual knowledge of the excessive risk of harm that the coronavirus presents to medically vulnerable individuals in their custody, given the February 25, 2020 DHS whistleblower report, the many letters from advocates, medical professionals, and Members of Congress, and the extensive news coverage the issue has received.35. The federal government’s own public health agency—the CDC—recognizes the heightened risk to people like Petitioners, and has developed guidance to
35See, e.g., Letter from Scott Allen & Josiah Rich, Med. Experts for DHS, to House Comm. on Homeland Sec. (Mar. 19, 2020), https://bit.ly/2zAYTSO; Dkt. 4-8 ¶ 30; Letter from 763 nongovernmental organizations to Matthew T. Albence, ICE Acting Director (Mar. 19, 2020), https://bit.ly/2UUKtUG; Abigail Hauslohner et al., Coronavirus Could Pose Serious Concern in ICE Jails, Immigration Courts, Wash. Post (Mar. 12, 2020), https://wapo.st/2X5BxOY.
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address the unique challenges of managing COVID-19 within carceral institutions, where social distancing and adequate hygiene measures are practically impossible.36
Having deprived Petitioners of their ability to practice the most effective defense against exposure to COVID-19—sheltering in place at home—Respondents must take reasonable precautions to reduce Petitioners’ risk of infection. Even with only a limited factual record before the Court, Respondents’ failure to implement the most crucial aspects of the CDC Guidance is clear. As explained in detail, supra Section I.B, Respondents are failing to ensure social distancing, proper hygiene and cleaning practices, access to testing, and communication with detained people, among other requirements. Respondents also continue to transfer new immigrants into Folkston, which not only makes social distancing more difficult by increasing the detained population, but also introduces new potential sources of disease into the facility. Worst of all, Respondents are ignoring requests for medical attention for COVID-19 symptoms, which both violates the CDC Guidance and independently evinces deliberate indifference. See, e.g., Farrow v. West, 320 F.3d 1235, 1246-47 (11th Cir. 2003) (denial or delay in access to needed medical care may amount to deliberate indifference); accord McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999); Brown v. Hughes, 894 F.2d 1533 (11th Cir. 1990); Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985). Respondents’ widespread violations of the CDC Guidance—which are mandatory under ICE’s own policy—amount to deliberate indifference to the substantial risk of serious harm that COVID-19 poses to Petitioners.
Courts across the United States have recognized that urgent release of medically vulnerable
36 People Who Are at Higher Risk for Severe Illness, supra n. 26 (recognizing heightened risk to people with medical vulnerabilities). Respondents agree that the CDC Guidance is an applicable and binding element of the standard of care during the pandemic. See ERO COVID-19 Pandemic Response Requirements, supra n. 12, at 5-6 (detention facilities “must” comply with the CDC Guidance); Dkts. 29 at 3-4, 9; 29-1 ¶¶ 5-6, 8-10; 29-2 ¶¶ 11, 15, 25.
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individuals from immigration detention is the only appropriate course of action in the face of a highly contagious disease with a death toll that continues to rise daily. See Dkt. 36 ¶ 5 n.1 (collecting cases). At a minimum, Respondents’ deliberate indifference towards Petitioners warrants a court order immediately compelling Respondents to comply with CDC Guidance at Folkston.
3. Respondents’ Failure to Comply with the CDC Guidance Violates Petitioners’ Rights under the Accardi Doctrine and the Fifth Amendment Due Process Clause
When the government promulgates “[r]egulations with the force and effect of law,” those regulations “supplement the bare bones” of federal statutes. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265 (1954) (petitioner granted new hearing after review of denial of relief revealed prejudgment, contrary to existing regulations). Agencies must follow those “existing valid regulations,” even where government officers would otherwise have broad discretion. Id. at 268; see also Gonzalez v. Reno, 212 F.3d 1338, 1349 (11th Cir. 2000) (“Agencies must respect their own procedural rules and regulations.”); Morton v. Ruiz, 415 U.S. 199, 235 (1974) (“[I]t is incumbent upon agencies to follow their own procedures . . . even where [they] are possibly more rigorous than otherwise would be required.”).
A violation of the Accardi doctrine may constitute a violation of the Fifth Amendment Due Process Clause. United States v. Teers, 591 F. App’x 824, 840 (11th Cir. 2014) (recognizing that an Accardi violation may be a due process violation); see also Jean v. Nelson, 727 F.2d 957, 976 (11th Cir. 1984). Accardi’s rule applies with full force when “the rights or interests of the objecting party” are “affected.” Montilla v. INS, 926 F.2d 162, 167 (2d Cir. 1991) (citing cases). The Due Process Clause is implicated here because Petitioners are relying on CDC Guidance promulgated for their benefit during the COVID-19 pandemic.
Respondents operate Folkston pursuant to ICE’s 2011 Performance-Based National
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Detention Standards, as amended in 2016 (“PBNDS”),37 which specify certain measures that must be taken to protect the health of detained people. The PBNDS in turn require compliance with CDC Guidance, including the CDC Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities.38 Yet, as discussed supra, Section I.B., their efforts to do so have been woefully inadequate. Respondents have failed to follow the CDC Guidance related to social distancing, hygiene, supplies (including PPE), cleaning, medical evaluation and treatment of COVID-19 symptoms, medical isolation of suspected and confirmed COVID-19 cases, transfers and screening of new entrants to the detained population, visitor screening, communication with detained people, testing, and care and protection of medically vulnerable individuals detained at Folkston.
A court in this Circuit recently found the Accardi doctrine applicable to this very set of circumstances. See Gayle v. Meade, No. 20-21553-CIV, 2020 WL 2086482, at *6 (S.D. Fla. Apr. 30, 2020) (Order Adopting in Part Magistrate Judge’s Report and Recommendation) (“It is abundantly clear that ICE is required to comply with CDC’s guidelines pursuant to its own regulations and policy statements. Yet, ICE has flouted its own guidelines by, inter alia, failing to ensure that each detainee practices social distancing. . . . ICE’s purported “substantial compliance” does not pass muster under the Accardi doctrine.”). For the same reason, Respondents have violated the Accardi doctrine in this case.
4. Petitioners Are Entitled to a Writ of Habeas Corpus Petitioners may challenge their unconstitutional detention under 28 U.S.C. § 2241. Habeas vests federal courts with broad, equitable authority to “dispose of the matter as law and justice
37 Performance-Based National Detention Standards 2011, https://www.ice.gov/doclib/ detentionstandards/2011/pbnds2011r2016.pdf. 38 Id. §§ 4.3(II)(1), (V)(C)(1).
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require.” 28 U.S.C. § 2243. Habeas is not “static, narrow, [or] formalistic,” but rather is “an adaptable remedy,” Boumediene v. Bush, 553 U.S. 723, 779-80 (2008) (citation omitted), conferring “broad discretion” on courts to right wrongs, Hilton v. Braunskill, 481 U.S. 770, 775 (1987). “The scope and flexibility of the writ—its capacity to reach all manner of illegal detention—its ability to cut through barriers of form and procedural mazes—have always been emphasized and jealously guarded by courts and lawmakers.” Harris v. Nelson, 394 U.S. 286, 291 (1969). Accordingly, the Court has the power to issue a writ of habeas corpus ordering either release, or alternatively, individualized custody re-determinations taking each Petitioner’s medical condition(s) into account. See Boumediene, 553 U.S. at 779 (courts may order release through habeas); Sopo v. U.S. Att’y Gen., 825 F.3d 1199, 1221 (11th Cir. 2016) (ordering individualized custody determination through habeas), vacated on other grounds, 890 F.3d 952 (11th Cir. 2018).
“Habeas is at its core a remedy for unlawful executive detention.” Munaf v. Geren, 553 U.S. 674, 693 (2008). “[T]he traditional function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S.475, 484 (1973). “[O]ver the years, the writ of habeas corpus [has] evolved as a remedy available to effect discharge from any confinement contrary to the Constitution or fundamental law . . . .” Id. at 485 (emphasis added). Because Petitioners have demonstrated that their detention amounts to unlawful punishment and that Respondents are acting with deliberate indifference towards the substantial risk of serious harm that COVID-19 poses to them in detention, a writ of habeas corpus is the proper remedy.
Some circuits, including the Eleventh, do not allow habeas as a remedy for run-of-themill challenges to conditions of confinement in criminal custody.39 These courts have generally
39 The purported distinction between habeas and “conditions” cases stems from the specific procedural interaction between statutory habeas for state prisoners under 28 U.S.C. § 2254, which unlike § 2241 requires state-court exhaustion, and statutory civil rights actions against
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concluded that “unconstitutional conditions of confinement can be remedied through injunctions that require abusive practices be changed.” Vazquez Barrera, 2020 WL 1904497, at *4. See, e.g., Dkt. 32 at 13 (finding the record “thus far” did not establish release only way to remedy conditions); Gayle v. Meade, 2020 WL 1949737, at *26 (S.D. Fla. Apr. 22, 2020) (report and recommendation) (the Eleventh Circuit’s rule on this point is “based on the implicit assumption that a ‘correction’ or ‘discontinuance’ of the unconstitutional practice is actually available” and that “[i]f no correction is feasible, then the remedy which the Eleventh Circuit relied upon would become illusory”) (emphasis in original); Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir. 1990) (asking whether adequate treatment within prison system was possible to remediate unconstitutional condition, absent release, and concluding that such treatment was possible).
In contrast, the Eleventh Circuit has never opined on whether a person in civil immigration detention is entitled to release under the Fifth Amendment when all steps short of release would fail to ameliorate a substantial risk of harm—as is the case here. The historic event in our midst— the COVID-19 pandemic—blurs the line between claims challenging conditions of confinement and claims challenging the fact or duration of confinement because being near other people poses an outsized risk to one’s health. See Money v. Pritzker, 2020 WL 1820660, at *9 (N.D. Il.. Apr. 10, 2020) (both habeas and § 1983 claims by state prisoners could proceed because “the[] unprecedented circumstances” of the COVID-19 pandemic “collapse the utility and purpose of drawing distinctions between” conditions claims and fact-or-duration claims) (citation omitted); Malam v. Adducci, No. 2:20-cv-10829-JEL-APP (E.D. Mich. Apr. 5, 2020), ECF No. 22
state officials under 28 U.S.C. § 1983. See Preiser, 411 U.S. 475 (concluding § 1983 could not be used to circumvent the exhaustion requirements in § 2254); Hutcherson v. Riley, 468 F.3d 750, 754-55 (11th Cir. 2006) (similar). But § 1983 and § 2254 do not apply in federal detention. Indeed, the Department of Justice’s own manual recognizes that § 2241 is the proper vehicle for federal prisoners to challenge conditions of confinement. Dep’t of Justice, Justice Manual § 937.000 (2018), https://www.justice.gov/jm/jm-9-37000-federal-habeas-corpus.
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(construing claim similar to Petitioners’ as challenge to the fact of detention because “no conditions of confinement . . . [could] prevent irreparable constitutional injury”). Petitioners’ only defenses against COVID-19 are stringent social distancing and hygiene measures—which are impossible in detention. The mere fact that Petitioners’ challenge “requires discussion of conditions in immigration detention does not necessarily bar such a challenge in a habeas petition.” Vazquez Barrera, 2020 WL 1904497, at *4. Petitioners face unreasonable harm from continued detention and should be released immediately.
Ultimately, cases such as this, seeking “immediate release from detention because there are no conditions of confinement that are sufficient to prevent irreparable constitutional injury” fall “squarely in the realm of habeas corpus.” See Vazquez Barrera, 2020 WL 1904497, at *4-5. When release is the only remedy that will end unlawful punishment or ameliorate a condition that violates the Fifth Amendment Due Process Clause, there must be a vehicle available for a detained person to seek release from a court. If no other cause of action allows release, habeas corpus must be available. U.S. Const. Art. I, § XI clause 2.
The “very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.” Harris v. Nelson, 394 U.S. 286, 291 (1969). The Court is fully empowered to remediate the particular illegality here—exposure to a highly contagious and potentially lethal virus that is substantially likely to harm Petitioners in the congregate environment where they are detained and violates their constitutional rights to be free from arbitrary and punitive detention—by ordering their release,40 or at a minimum, individualized custody re-evaluations.
5. Petitioners Are Entitled to Injunctive Relief Under the Fifth Amendment
40 Many other district courts around the country have ordered release from ICE detention for similar reasons. See Dkt. 36 ¶ 5 n.1 (collecting cases).
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Because of the operation of the Suspension Clause, if this Court determines that it does not have jurisdiction to consider release or individualized custody re-evaluations under habeas, it must be because it finds jurisdiction to do so under its broad implied injunctive authority. “[T]he Fifth Amendment provides Petitioner[s] with an implied cause of action,” and 28 U.S.C. § 1331 provides jurisdiction. Malam v. Adducci, 2020 WL 1672662, at *4 (E.D. Mich. Apr. 5, 2020). Petitioners may seek equitable relief for violation of their rights through an implied cause of action against Respondents in their official capacities that arises directly under the Fifth Amendment. Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1230-33 (10th Cir. 2005) (implied cause of action against officials in their official capacity under Eighth Amendment to enjoin unconstitutional prison conditions, as distinct from Bivens constitutional tort claims). Federal courts have long recognized an implicit private right of action under the Constitution for injunctive relief barring unlawful government action. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 491 n.2 (2010); see also Bell v. Hood, 327 U.S. 678, 684 (1946) (“[I]t is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution.”); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001).
Courts’ broad power to fashion equitable remedies to constitutional violations extends to custodial settings and includes the power to release or order injunctive measures short of release— such as CDC Guidance compliance and adequate feeding—as required to remedy the violations. See Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978); Simmat, 413 F.3d at 1230-33; Stone v. City & County of San Francisco, 968 F.2d 850, 861 (9th Cir. 1992).“When necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011); Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983) (court had authority to order release of low-bond pretrial detainees to reach a population
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cap), cert. denied, 465 U.S. 1108 (1984). Gomez poses no barrier because it does not constrain courts from ordering injunctive relief—including release—when measures short of release will not remedy the constitutional violation. Supra at 28-29. B. Petitioners Face an Imminent and Substantial Threat of Irreparable Harm from
COVID-19 An injury is irreparable when a plaintiff cannot obtain adequate compensatory or corrective relief through the ordinary course of litigation. Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir. 1987). The injury must be “actual and imminent, not remote or speculative.” Odebrecht Constr., Inc. v. Sec'y, Fla. Dep’t of Transp., 715 F.3d 1268, 1288 (11th Cir. 2013). A harm need not be inevitable or have already happened to be irreparable. See Helling, 509 U.S. at 33; Ball v. LeBlanc, 792 F.3d 584, 593-94 (5th Cir. 2015) (lack of prior heat-related incidents at prison or signs of heat-related illness among plaintiffs did not preclude finding that prisoners had substantial risk of serious harm from excessive heat). Due to their medical conditions, Petitioners face the most fundamental kind of irreparable harm—imminent and substantial risk of serious illness, organ damage, or death—if they contract COVID-19. See J.M. v. Crittendon, 2018 WL 7079177, at *7 (N.D. Ga. May 21, 2018); Vasquez Barrera, 2020 WL 1904497, at *6 (alleged harm to medically vulnerable detained immigrants as a result of COVID-19 is “both imminent and irreparable”). Petitioners are highly likely to contract COVID-19 if they remain in ICE detention. See supra Section I.A, B, C. The first case of COVID-19 at Folkston was publicly reported on May 4, 2020. Given that the virus is highly contagious and that infected individuals can remain asymptomatic, the actual numbers of confirmed cases at Folkston is likely to be much higher. The daily flow of people into and out of Folkston, as well as ICE’s continuing transfers of detained people between facilities, only increase the probability that the virus will spread more rapidly. Further exacerbating the risk of injury to Petitioners are Respondents’ failure to comply with
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applicable CDC guidance for reducing the transmission of COVID-19, see supra Section I.B. and Petitioners’ lack of access to life-saving medical treatment in the event of a serious COVID-19 infection, see supra Section I.A.1.
Continuing to detain Petitioners also violates the Fifth Amendment Due Process Clause. Supra Section II.A. Deprivations of constitutional rights that cannot be compensated monetarily generally amount to irreparable injury as a matter of law. See Cunningham, 808 F.2d at 822. Petitioners’ predicament is particularly dire given ICE’s failure to comply with applicable CDC Guidance. Where detention is necessary, the CDC Guidance represents the most comprehensive set of standards for risk mitigation. However, as public health experts make clear, Respondents cannot ameliorate the life-threatening risk to Petitioners or the violations of their rights through any means other than immediate release. C. The Balance of Equities and Public Interest Weigh Heavily in Petitioners’ Favor.
The final two factors of the preliminary injunction inquiry “merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). In contrast to Petitioners’ significant risk of serious illness, organ failure, or death, an injunction will not harm Respondents. Indeed, it is in both the Respondents’ and the broader public interest to release medically vulnerable individuals from custody—or, at a minimum, comply with CDC Guidance—rather than needlessly jeopardizing their health and lives. Moreover, “the public interest is served when constitutional rights are protected.” Jones v. Governor of Fla., 950 F.3d 795, 830 (11th Cir. 2020) (citation omitted); KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006). Here, continued detention violates Petitioners’ constitutional rights.
The equities weigh in favor of granting relief. Petitioners’ detention—especially under the existing conditions—threatens their own health and also subjects all other detained individuals, staff, and everyone else who has contact with Folkston to an increased risk of harm. See Dkt. 4-3
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¶¶ 24-27; Dkt. 4-6 ¶ 7; Dkt. 4-5 ¶¶ 19, 21, 23. Far from injuring the government, releasing Petitioners and complying with the CDC Guidance would further Respondents’ interests in maintaining a healthy and orderly environment.
These measures are also unquestionably in the public interest. Ex. 4 ¶ 6. See, e.g., Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (referring to “public health” as a “significant public interest[]”); see also Allen & Rich Ltr., supra n. 35 (“[I]t is essential to consider releasing all detainees who do not pose an immediate risk to public safety”). In the unprecedented and rapidly evolving circumstances of the COVID-19 crisis, continued civil detention of aging or ill individuals—especially under conditions that fall far short of CDC Guidance—does not serve the public’s interest. An outbreak of COVID-19 at Folkston would likely overwhelm the local health infrastructure in the surrounding communities. Dkt. 36 ¶¶ 8587; Dkt. 4-3 ¶ 25; Dkt. 4-4 ¶ 5; Dkt. 4-5 ¶¶ 14-15 and contribute to more massive community spread and more deaths. According to a recent study:
[D]ecisive action on the part of ICE will not only reduce morbidity and mortality outcomes in its population of detained immigrants, but minimize negative health outcomes in the communities that support ICE’s detention facilities with health care resources. If hesitation prevails instead, and more limited measures on the part of ICE prove ineffective, then the successful social distancing strategies implemented in a community may be undone by the large number of detainee infectious disease cases that its hospitals must care for. Dkt. 37-11 at 10. The health and safety of the public would thus be best served by requiring Respondents to comply immediately with CDC Guidance and rapidly decrease the number of individuals detained at Folkston. Dkt. 4-6 ¶ 9; see also id. at 7. Through these measures, ICE would reduce the spread and severity of infection inside Folkston. This, in turn, would reduce the number of people who will become ill enough to require hospitalization and thereby decrease the health and economic burden on local communities. Dkt. 4-3 ¶ 25.
To the extent the equities weigh in favor of some restraint of Petitioners’ liberty, that can
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be achieved by fashioning reasonable release conditions that ICE already uses and that have

demonstrated success. See supra Section II.A.1; Brief of Amicus Curiae at 36-37, Jennings v.

Rodriguez, No. 15-1204, 2016 WL 6276890 (Oct. 24, 2016); Vasquez Barrera, 2020 WL 1904497,

at *7. Because the Respondents’ interests can be served through alternatives to detention and the

Petitioners’ interests will be irreparably harmed if they remain detained, particularly under current

conditions, both the balance of equities and the public interest favor Petitioners.

D. The Court Should Not Require Petitioners to Provide Security Prior to Issuing a Preliminary Injunction.
Courts have discretion to waive the requirement in Federal Rule of Civil Procedure 65(c)

that a movant provide a security upon the issuance of a preliminary injunction or TRO. BellSouth

Telecomms., Inc. v. MCImetro Access Transmission Servs., LLC, 425 F.3d 964, 971 (11th Cir.

2005). District courts in this Circuit often exercise this discretion to require no security in cases

brought by indigent and/or incarcerated people. See, e.g., Schultz v. Alabama, 330 F. Supp. 3d

1344, 1376 (N.D. Ala. 2018) (county prisoners); Campos v. I.N.S., 70 F. Supp. 2d 1296, 1310

(S.D. Fla. 1998) (indigent immigrants). This Court should do the same here. III. CONCLUSION
For the foregoing reasons, Petitioners’ requested preliminary injunction should be granted.

Dated: May 8, 2020

Respectfully submitted,

SOUTHERN POVERTY LAW CENTER

KILPATRICK TOWNSEND & STOCKTON LLP

Gracie Willis* (GA Bar #851021) Rebecca Cassler* (GA Bar #487886) Lorilei Williams* (NY Bar #5302617) 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 Fax: (404) 221-5857 gracie.willis@splcenter.org rebecca.cassler@splcenter.org
Paul Chavez* (FL Bar #1021395)

By: /s/ Mark H. Reeves Mark H. Reeves (GA Bar #141847) Enterprise Mill 1450 Greene Street, Ste. 230 Augusta, GA 30901 Tel: (706) 823-4206 Fax: (706) 828-4488 mreeves@kilpatricktownsend.com
Tamara Serwer Caldas** (GA Bar #617053) Kathryn E. Isted* (GA Bar #908030)

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Case 5:20-cv-00046-LGW-BWC Document 41-1 Filed 05/08/20 Page 36 of 36

Victoria Mesa-Estrada* (FL Bar #076569) 2 S. Biscayne Blvd., Ste. 3200 Miami, FL 33101 Tel: (786) 347-2056 paul.chavez@splcenter.org victoria.mesa@splcenter.org
Melissa Crow** (DC Bar #453487) 1101 17th Street, NW, Ste. 705 Washington, DC 20036 Tel: (202) 355-4471 Fax: (404) 221-5857 melissa.crow@splcenter.org
* admitted pro hac vice ** pro hac vice motion forthcoming

Amanda Brouillette** (GA Bar #880528) 1100 Peachtree St., NE, Ste. 2800 Atlanta, GA 30309 Tel: (404) 815-6006 Fax: (404) 541-4754 tcaldas@kilpatricktownsend.com kisted@kilpatricktownsend.com abrouillette@kilpatricktownsend.com
ASIAN AMERICANS ADVANCING JUSTICEATLANTA
Hillary Li* (GA Bar #898375) Phi Nguyen* (GA Bar #578019) 5680 Oakbrook Pkwy, Ste. 148 Norcross, GA 30093 Tel: (404) 585-8466 Fax: (404) 890-5690 hli@advancingjustice-atlanta.org pnguyen@advancingjustice-atlanta.org

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA

JENNER BENAVIDES DAVID FERNANDEZ GERARDO ARRIAGA AJIT KUMAR SCOTT JAMES WINSTON BROWN Folkston ICE Processing Center P.O. Box 248 Folkston, GA 31537
Petitioners/Plaintiffs,
v.
PATRICK GARTLAND Warden, Folkston ICE Processing Center 3026 Hwy 252 E P.O. Box 98 Folkston, GA 31537;
and
THOMAS GILES Field Office Director U.S. Immigration and Customs Enforcement Atlanta Field Office, 180 Ted Turner Drive, SW, Suite 522 Atlanta, GA 30303;
and
MATTHEW T. ALBENCE Deputy Director and Senior Official Performing the Duties of the Director U.S. Immigration and Customs Enforcement 500 12th Street, SW Washington, D.C. 20536;
and
CHAD WOLF Acting Secretary Department of Homeland Security,

Case No.: 5:20-cv-46-LGWBWC
HEARING REQUESTED

Case 5:20-cv-00046-LGW-BWC Document 36 Filed 05/07/20 Page 2 of 80 3801 Nebraska Avenue, NW Washington, D.C. 20016; and U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 500 12th Street, SW Washington, D.C. 20536; Respondents/Defendants. AMENDED PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C.
§ 2241 AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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TABLE OF CONTENTS
I. INTRODUCTION ...............................................................................................................1 II. PARTIES .............................................................................................................................3 III. JURISDICTION AND VENUE ..........................................................................................7 IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES .....................................................7 V. STATEMENT OF FACTS ..................................................................................................8
A. COVID-19 Is a Global Pandemic that Poses a Significant Risk of Death or Serious Illness to Petitioners................................................................8 i. Transmission of COVID-19.......................................................12 ii. Symptoms of COVID-19, Underlying Risks Factors, and LongTerm Effects...............................................................................14 iii. Prevention of COVID-19 Transmission .................................... 15
B. COVID-19 Will Likely Ravage Jails, Prisons, and Detention Centers..17 C. Folkston Detention Center Is Primed for COVID-19 Exposure and
Severe Outbreaks ................................................................................... 26 i. Existing Conditions at Folkston Will Further Enable COVID-19
Transmission .............................................................................. 26 ii. Folkston Has a Dismal Medical Care Track Record and Are
Currently Ignoring Reported COVID-19 Symptoms Among the Detained Population...................................................................27 iii. COVID-19 Has Already Reached Folkston Detention Center and Will Continue to Spread.............................................................29 D. The Lack of Hospital Resources Near Folkston Will Put Petitioners at Even Greater Risk .................................................................................. 30 E. Respondents’ Actions to Address the Pandemic Thus Far Have Been Woefully Inadequate, and Release is the Only Adequate Response to Protect Petitioners .................................................................................. 32 i. Respondents’ Custody Review of High-Risk Individuals Has Been Largely Illusory ................................................................ 32 ii. Respondents Are Failing to Adhere to CDC Guidance ............. 34 a. Respondents Are Violating the CDC Guidance Regarding Social Distancing and Air Regulation.................................................................. 36 b. Respondents Are Violating the CDC Guidance Related to Hygiene . 39 c. Respondents Are Violating the CDC Guidance Related to Supplies, Including PPE ........................................................................................... 40 d. Respondents Are Violating the CDC Guidance Related to Cleaning 41

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e. Respondents Are Violating the CDC Guidance by Ignoring Symptoms Among the Detained Population and Failing to Place Sick People in Medical Isolation ...................................................................................... 42 f. Respondents Are Violating the CDC Guidance Related to Transfers and Screening of New Entrants to the Detained Population..................... 44 g. Respondents Are Violating CDC Guidance on Screening of Visitors 45 h. Respondents Are Violating the CDC Guidance Related to Communication with Detained People ..................................................... 47 i. Respondents Are Violating the CDC Guidance Related to Testing... 48 j. Respondents Are Violating CDC Guidance Related to Care and Protection of Medically Vulnerable Individuals in Their Custody........... 48 k. Respondents Must Follow Other CDC Guidance on COVID-19 ...... 50 F. Petitioners Are Particularly Vulnerable to Serious Illness or Death if Infected by COVID-19 and Should Be Released from Detention ......... 51 G. ICE’s Alternatives to Detention Program .............................................. 54 VI. LEGAL FRAMEWORK ...................................................................................................56 A. Petitioners Have a Constitutional Right to Be Free from Punishment...56 B. Petitioners Have a Constitutional Right to Reasonable Safety in Custody .................................................................................................. 58 C. The Court May Grant Petitioners’ Release Through a Writ of Habeas Corpus .................................................................................................... 60 D. The Court May Grant Petitioners’ Release and Other Equitable Relief Under 28 U.S.C. § 1331 and the Fifth Amendment...............................63 E. ICE’s Failure to Comply with CDC Guidance Violates the Accardi Doctrine .................................................................................................. 65 VII. CLAIMS FOR RELIEF .....................................................................................................67 FIRST CLAIM FOR RELIEF............................................................................67 Violation of Fifth Amendment Right to Substantive Due Process .................... 67 Detention Constituting Unlawful Punishment ................................................... 67 SECOND CLAIM FOR RELIEF.......................................................................69 Violation of Fifth Amendment Right to Substantive Due Process .................... 69 Detention Amounting to Deliberate Indifference to a Substantial Risk of Harm....................................................................................................... 69 THIRD CLAIM FOR RELIEF .......................................................................... 69 Accardi Doctrine (Fifth Amendment) Violation of Detention Standards .......... 69 VIII. PRAYER FOR RELIEF ....................................................................................................71
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I. INTRODUCTION 1. The COVID-19 pandemic is wreaking havoc throughout the world. The United
States has more confirmed cases than any other country, and more than 74,810 Americans have died. Experts estimate that the coronavirus will ultimately infect between 160 and 214 million people and take the lives of up to 1.7 million people in the United States alone.
2. There is no vaccine against COVID-19 and no known cure. Currently, the only recognized strategies to reduce the risk of exposure to COVID-19 are strict social distancing and scrupulous hygiene, which have led to unprecedented public health measures around the world.
3. In light of the devastation COVID-19 has already caused and the extreme difficulty of stopping its transmission, the President has declared a national emergency; all fifty U.S. states and the District of Columbia have declared states of emergency; and numerous states and localities—including Georgia—have issued “shelter-in-place” orders requiring all, or some, residents to stay in their homes. These extreme measures all seek to reduce the spread of the virus and, ultimately, save lives.
4. Jails and prisons across the nation—including in Georgia—have also implemented drastic measures to mitigate the spread of COVID-19, including reducing incarcerated populations, releasing medically vulnerable individuals, and slowing arrests. Unfortunately, U.S. Immigration and Customs Enforcement (ICE), which detains immigrants who may be subject to removal from the United States, has failed to follow suit. Despite warnings from thousands of medical and public health professionals that releasing people—especially those who are medically vulnerable—is the only viable option to avert an imminent public health threat, the agency has generally refused to do so in the absence of court intervention.
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5. Since the pandemic began, numerous judges across the country have ordered the
urgent release of individuals from ICE detention facilities, jails, and prisons, explaining the
pressing health risks created by ICE detention and other types of imprisonment.1
6. Petitioners, who are detained at Folkston ICE Processing Center (“Folkston”), now
seek the same relief from this Court. COVID-19 is already present inside of Folkston, and rapid
1See, e.g., Xochihua-Jaimes v. Barr, 2020 WL 1429877 (9th Cir. Mar. 24, 2020); Roman v. Wolf, No. 5:20-cv-00768-TJH-PVC, 2020 WL 1952656 (C.D. Cal. Apr. 23, 2020) (Findings of Fact and Conclusions of Law), and ECF No. 55 (Preliminary Injunction Order); Vazquez Barrera v. Wolf, Case No. 4:20-cv-01241 (S.D. T.X. Apr. 17, 2020), ECF No. 41; Barbecho v. Decker, Case No. 1:20-cv-02821 (S.D. N.Y. Apr. 15, 2020), ECF No. 20; Hope v. Doll, Case No. 1:20cv-00562-JEJ (M.D. Pa. Apr. 7, 2020), ECF No. 11; Martin Munoz v. Wolf, Case No. 20-cv00625-TJH-SHK (C.D. Cal. Apr. 2, 2020), ECF No. 14; Robles Rodriguez v. Wolf, 20-cv-00627TJH-GJS (C.D. Cal. Apr. 2, 2020), ECF No. 37; Hernandez v. Wolf, CV 20-60017-TJH (KSx)(C.D. Cal. Apr. 1, 2020), ECF No. 17; Arana v. Barr, 2020 WL 1502039 (S.D.N.Y. Mar. 27, 2020); Xuyue Zhang v. Barr, 2020 WL 1502607 (C.D. Cal. March 27, 2020); Basank v. Decker, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020); Castillo v. Barr, 2020 WL 1502864 (C.D. Cal. March 27, 2020); Coronel v. Decker, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020); Fraihat v. Wolf, No. ED CV 20-00590 TJH (KSx) (C.D. Cal. Mar. 30, 2020); Calderon Jimenez v. Wolf, No. 18 Civ. 10225 (D. Mass. Mar. 26, 2020), ECF No. 507; United States v. Stephens, 2020 WL 1295155 (S.D. N.Y. Mar. 19, 2020); Matter of Extradition of Toledo Manrique, 2020 WL 1307109 (N.D. Cal. Mar. 19, 2020); Alcantara v. Archambeault, No. 3:20-cv-00756-DMS-AHG (S.D. Cal. Apr. 30, 2020), ECF No. 38; Dada v. Witte, No. 1:20-cv-00458-DDD-JPM (W.D. La. April 30, 2020), ECF No. 17; Gayle v. Meade, 2020 WL 2086482 (S.D. Fl. Apr. 30, 2020); Favi v. Kolitwenzew, No. 2:20-CV-02087 2020 U.S. Dist. LEXIS 77772 (C.D. Ill. May 4, 2020); Hernandez v. Kolitwenzew, No. 2:20-cv-02088-SLD (C.D. Ill. Apr. 9, 2020), ECF. No. 9; Essien v. Barr, No. 20-cv-1034-WJM, 2020 WL 1974761 (D. Colo. Apr. 24, 2020); Savino v. Hodgson, No. 1:20-cv-10617-WGY (D. Mass. Apr. 4, 2020), ECF No. 44; United States v. Ramos, No. 3:18-cr-30009-FDS (D. Mass. Mar. 26, 2020), ECF No. 168; United States. v. Barkman, No. 3:19-cr-0052-RCJ-WGC, 2020 WL 1811343 (D. Nev. Mar. 17, 2020), ECF No. 21; United States v. McLean, No. 1:19-cr-00380-RDM (D. D.C. Mar. 28, 2020), ECF No. 21; Cristian A.R. v. Decker, No. 20-3600, 2020 WL 2092616 (D.N.J. Apr. 12, 2020); Durel B. v. Decker, No. 203430 (KM), 2020 WL 1922140 (D.N.J. Apr. 21, 2020); United States v. Kennedy, No. 18-20315, 2020 WL 1493481 (E.D. Mich. Mar. 27, 2020); Bent v. Barr, No. 19-cv-06123-DMR, 2020 WL 1812850 (N.D. Cal. Apr. 9, 2020); United States v. Grobman, No. 1:18-CR-20989[2] ALTMAN/GOODMAN (S.D. Fla. Mar. 29, 2020), ECF No. 397; Avendano Hernandez v. Decker, No. 20-CV-1589 (JPO), 2020 WL 1547459 (S.D.N.Y. Mar. 31, 2020); Umana Jovel v. Decker, No. 1:20-cv-00308-GBD-SN (S.D.N.Y. Mar. 26, 2020), ECF No. 27.
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spread is inevitable. At Folkston, hundreds of people live, eat, and sleep together in tight quarters; daily close contact with guards and other facility staff is also a fact of life. Social distancing and proper hygiene are impossible, and ICE has failed to take measures—including following their own guidelines—to mitigate the risk of a COVID-19 outbreak. ICE also continues to move new immigrants into the facility. Under these circumstances, COVID-19 will, in the words of a former high-level ICE official, “spread like wildfire.”
7. Due to their underlying medical conditions, Petitioners are particularly vulnerable to serious cases of COVID-19. If they contract coronavirus, there is a high risk they will require critical care—largely unavailable in South Georgia where Folkston is located—and face serious illness, including long-term organ damage, and possibly death.
8. Petitioners bring this action to remedy Respondents’ violations of their constitutional rights and to protect themselves—as well as others detained or employed at Folkston or living in the surrounding community—from the imminent harm that will result from their continued detention. II. PARTIES
9. Petitioner Jenner Benavides2 is a 27-year-old transgender woman and citizen of Mexico who has been detained by ICE at Folkston since May 2019. She entered the U.S. at the age of 10 and later became a DACA recipient. In 2014, her mother died from stomach cancer, leaving Ms. Benavides as the sole caretaker and custodian for her four minor siblings in Nashville, Tennessee. She applied for asylum based on sexual assault and abuse she endured as a child in
2 Petitioners Jenner Benavides, David Fernandez, and Gerardo Arriaga are proceeding in this action using pseudonyms, as permitted by oral order of the Court on April 15, 2020. Petitioners Ajit Kumar and Winston Brown also use pseudonyms herein and will file a motion to proceed pseudonymously. Respondents have indicated that they will not take a position on Petitioners’ motion.
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Mexico, as well as her gender identity and sexual orientation. She is currently appealing the denial of this relief to the BIA and applying for a U-visa. Ms. Benavides’ immigration attorney submitted a humanitarian parole request on her behalf on April 2, 2020, which ICE denied on April 5, 2020. On April 24, 2020, Ms. Benavides’ immigration attorney submitted a request for re-consideration of the parole request and custody re-determination under Fraihat v. ICE, No. 5:19-cv-01546-JGBSHK, at 21 (C.D. Cal. Apr. 20, 2020), ECF No. 132. On May 1, 2020, this request was denied as well. Ms. Benavides is HIV positive and suffers from bipolar disorder and severe depression and anxiety. As a consequence of her health conditions, she is at high risk for severe illness or death if she contracts COVID-19.
10. Petitioner David Fernandez is a 45-year-old citizen of Mexico who has been detained by ICE at Folkston since December 2019. He has lived in the United States for nearly 18 years and has worked consistently in labor jobs, including farming, construction, and roofing. He is currently seeking asylum. Mr. Fernandez suffers from diabetes and has a history of tuberculosis. ICE has not consistently provided him with his necessary insulin injections, so his health has deteriorated while in detention. As a consequence of his health conditions, he is at high risk for severe illness or death if he contracts COVID-19.
11. Petitioner Gerardo Arriaga is a 24-year-old citizen of Peru who is detained at Folkston and has been in ICE custody since March 2020. He is married to a U.S. citizen and was living in Atlanta, Georgia before ICE detained him. Mr. Arriaga suffers from lupus, an autoimmune disease that causes him to be immunocompromised and causes inflammation and damage to his joints, skin, kidneys, blood, heart, and lungs. He has not been receiving adequate medical care at Folkston for his lupus, and on May 5, 2020, he signed a voluntary departure order, choosing to be deported to Peru to obtain medical care for his lupus instead of remaining at
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Folkston. However, he was informed by the Peruvian Consulate that Peru is not currently accepting deported people back into the country. Mr. Arriaga’s previous requests for release on parole and bond were denied. As a consequence of his health conditions, he is at high risk for severe illness or death if he contracts COVID-19.
12. Petitioner Ajit Kumar is a 29-year-old citizen of Sri Lanka who has been detained by ICE at Folkston since January 2019. He fled Sri Lanka to escape persecution and sought asylum in the U.S. but was denied protection. However, he does not have a passport or travel document and cannot be deported without them. Mr. Kumar currently suffers from tuberculosis, which causes coughing and fatigue, but Folkston recently stopped providing him medication for his tuberculosis. He also suffers from severe headaches, depression, and anxiety; he previously attempted suicide due to the effects of detention on his mental health. As a consequence of his health conditions, Mr. Kumar is at high risk for severe illness or death if he contracts COVID-19.
13. Petitioner Scott James is a 58-year-old citizen of Belize who is detained at Folkston and has been in ICE custody since October 2018. He is married to a U.S. citizen, and he and his wife have four U.S. citizen children. He has lived in the U.S. since 1978; prior to his detention, he lived in Atlanta, Georgia with his family. He is seeking asylum, withholding of removal, and protections under the Convention Against Torture. Mr. James suffers from severe asthma and chronic obstructive pulmonary disease (COPD), which are aggravated by the conditions of his detention. He also has hypertension and a history of pre-diabetes. As a consequence of his age and health conditions, he is at high risk for severe illness or death if he contracts COVID-19.
14. Petitioner Winston Brown is a 61-year-old citizen of Jamaica who is detained at Folkston and has been in ICE custody since March 2019. He has lived in the United States since 1995 and been married to a U.S. citizen for over twenty years. They have two U.S. citizen children.
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He sought asylum based on violence committed against him in Jamaica by the police, but his application was denied. He is appealing the denial to the BIA. Mr. Brown suffers from diabetes and hypertension, and he has prostate issues as well. For a few weeks, he has also been experiencing shortness of breath and chest pain. As a consequence of his age and health conditions, he is at high risk for severe illness or death if he contracts COVID-19.
15. Respondent-Defendant (“Respondent”) Patrick Gartland is the Warden of Folkston ICE Processing Center. Pursuant to a contract with ICE, Respondent Gartland is responsible for the operation of Folkston, where Petitioners are detained. He is sued in his official capacity.
16. Respondent Thomas Giles is the Field Office Director for the ICE Atlanta Field Office. The ICE Atlanta Field Office has complete control over the admission and release of noncitizens detained at Folkston. Respondent Giles is a legal custodian of Petitioners. He is sued in his official capacity.
17. Respondent Matthew T. Albence is the Deputy Director and Senior Official Performing the Duties of the Director of ICE. Respondent Albence is responsible for ICE’s policies, practices, and procedures, including those relating to the detention of immigrants. He is sued in his official capacity.
18. Respondent Chad Wolf is the Acting Secretary of the United States Department of Homeland Security (DHS). In this capacity, he is responsible for the implementation and enforcement of immigration laws and oversees ICE. He is sued in his official capacity.
19. Respondent ICE is a federal law enforcement agency within DHS. ICE is responsible for the criminal and civil enforcement of the immigration laws, including the detention and removal of immigrants.
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III. JURISDICTION AND VENUE 20. This Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1331
(federal question), 28 U.S.C. § 1346 (United States as defendant), 28 U.S.C. § 2241 (habeas jurisdiction), 28 U.S.C. § 1651 (All Writs Act), Article I, Section 9, clause 2 of the U.S. Constitution (the Suspension Clause), and the Due Process Clause of the Fifth Amendment to the U.S. Constitution.
21. Federal district courts have jurisdiction to hear habeas corpus claims by noncitizens challenging the lawfulness of their detention. See Jennings v. Rodriguez, 138 S. Ct. 830 (2018); Demore v. Kim, 538 U.S. 510, 516-17 (2003); Zadvydas v. Davis, 533 U.S. 678, 687 (2001).
22. Venue is proper in the Southern District of Georgia pursuant to 28 U.S.C. § 1391(e) because Respondents Giles, Wolf, and Albence are federal officers sued in their official capacity; Respondent Gartland resides in this District; Petitioners are currently detained in this District; and a substantial part of the events or omissions giving rise to this action occurred in this District. Venue is also proper under 28 U.S.C. § 2241 because Petitioners are currently detained in this District. IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES
23. Petitioners need not exhaust any administrative remedies before seeking habeas relief under 28 U.S.C. § 2241. See Santiago-Lugo v. Warden, 785 F.3d 467, 474 (11th Cir. 2015) (there is no exhaustion requirement under Section 2241).
24. Moreover, there is generally no exhaustion requirement for constitutional challenges that an agency cannot address. See Tefel v. Reno, 972 F. Supp. 608, 616 (S.D. Fla. 1997) (citing Haitian Refugee Ctr., Inc. v. Nelson, 872 F.2d 1555, 1560 (11th Cir. 1989)); see also Crayton v. Callahan, 120 F.3d 1217, 1222 (11th Cir. 1997) (“Exhaustion may be excused when
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the only contested issue is constitutional, collateral to the consideration of [the] claim [before the agency], and its resolution therefore falls outside the agency’s authority. . . .”).
25. Exhaustion of administrative remedies is also not required where it would be futile; where administrative remedies are inadequate; or where irreparable harm would result from requiring exhaustion. See Nierenberg v. Heart Ctr. of Sw. Fla., P.A., 835 F. Supp. 1404, 1407 (M.D. Fla. 1993); see also Curry v. Contract Fabricators, Inc. Profit Sharing Plan, 891 F.2d 842, 846 (11th Cir. 1990) (exceptions to exhaustion requirement exist when resort to the administrative route is futile or the remedy inadequate). Under the exigent circumstances here, requiring exhaustion would cause irreparable injury.
V. STATEMENT OF FACTS A. COVID-19 Is a Global Pandemic that Poses a Significant Risk of Death or Serious Illness to Petitioners
26. COVID-19 is a highly contagious respiratory disease caused by a newly discovered coronavirus. Since the first case was reported in December 2019, the transmission of COVID-19 has been growing exponentially. The number of reported cases climbed from 1 to 100,000 in 67 days; from 100,000 to 200,000 in only 11 days; and from 200,000 to 300,000 in just 4 days.3
27. On March 11, 2020, the World Health Organization (“WHO”) declared the outbreak of a global pandemic,4 and COVID-19 has now touched nearly every country on the
3 Berkeley Lovelace Jr., et al., Coronavirus Pandemic Is Accelerating as Cases Eclipse 350,000, WHO Says, CNBC (last updated Mar. 23, 2020 20:14 EDT), https://www.cnbc.com/2020/03/23/coronavirus-pandemic-is-accelerating-as-cases-eclipse350000-who-says.html. 4 Tedros Adhanom Ghebreyesus, WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19 – 11 March 2020, World Health Organization (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-mediabriefing-on-covid-19---11-march-2020.
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planet.5 As of May 7, 2020, the number of confirmed cases worldwide has surpassed 3.8 million, including over 1.2 million people in the United States. At least 265,877 people have died as a result of COVID-19 worldwide, including 74,810 in the United States.6
28. Nationally, projections by the Centers for Disease Control and Prevention (“CDC”) indicate that over 200 million people in the United States could be infected with COVID-19 over the course of the pandemic without effective public health intervention, with as many as 1.7 million deaths in the most severe projections.7 On March 23, 2020, the WHO warned that the United States could become the next epicenter of the pandemic.8 And indeed on March 26, 2020, the United States surpassed every other country in the world in number of confirmed COVID-19 cases.9
29. In the state of Georgia, transmission of COVID-19 has been rampant. On March 14, 2020, Governor Brian Kemp declared a public health state of emergency, describing the spread
5 Coronavirus Disease 2019 (COVID-19) Situation Report – 73, World Health Organization (April 2, 2020), https://www.who.int/docs/default-source/coronaviruse/situationreports/20200402-sitrep-73-covid-19.pdf?sfvrsn=5ae25bc7_4https://www.who.int/docs/defaultsource/coronaviruse/situation-reports/20200330-sitrep-70-covid-19.pdf?sfvrsn=7e0fe3f8_2. 6 Worldometer: Coronavirus, https://www.worldometers.info/coronavirus/#countries (last accessed May 7, 2020). 7 Sheri Fink, Worst-Case Estimates for U.S. Coronavirus Deaths, The New York Times (last updated Mar. 18, 2020), https://www.nytimes.com/2020/03/13/us/coronavirus-deathsestimate.html. 8 Sarah Boseley, US may become next centre of coronavirus pandemic, says WHO, The Guardian (Mar. 24, 2020), https://www.theguardian.com/world/2020/mar/24/us-may-become-centre-ofcoronavirus-pandemic-who-says. 9 U.S. Now Leads the World in Confirmed Cases, The New York Times (last updated Apr. 1, 2020), https://www.nytimes.com/2020/03/26/world/coronavirusnews.htmlhttps://www.nytimes.com/2020/03/26/world/coronavirus-news.html.
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of COVID-19 as an “unprecedented public health threat.”10 At the time, there were 64 diagnosed COVID-19 cases spread across 15 counties.11 As of May 7, 2020, the number of reported cases had jumped to 31,150 with 158 counties now affected.12 A shelter-in-place order for particularly high risk individuals, including those with chronic lung disease, went into effect on March 24, 202013 and is scheduled to remain in effect until at least June 12, 2020.14
30. With 1,328 fatalities reported as of May 7 2020, Georgia is the state with the thirteenth highest number of COVID-19-related deaths in the United States.15 Approximately 19% of individuals with confirmed diagnoses have been hospitalized and 4.3% have died.16 The risk of serious illness or death from COVID-19 is greater in Georgia than in other parts of the United States because the population is overall much less healthy. Georgia has among the highest incidences of diabetes, hypertension, obesity, and stroke in the country, particularly in areas with
10 Governor Brian P. Kemp, Kemp Declares Public Health State of Emergency, Office of the Governor (Mar. 16, 2020), https://gov.georgia.gov/press-releases/2020-03-16/kemp-declarespublic-health-state-emergency. 11 Id. 12 Georgia Department of Public Health COVID-19 Daily Status Report (May 7, 2020), https://dph.georgia.gov/covid-19-daily-status-report. 13 Governor Brian P. Kemp, Executive Order No. 03.23.20.01 (March 23, 2020), file:///Users/aaajatl3/Downloads/03.23.20.01.pdf. 14 Governor Brian P. Kemp, Gov. Kemp Extends Protections for Vulnerable Georgians, Releases Guidance for Businesses (April 30, 2020), https://gov.georgia.gov/press-releases/2020-0430/gov-kemp-extends-protections-vulnerable-georgians-releases-guidance. 15 Listing of United States Total Coronavirus Cases (last updated May 7, 2020), https://www.worldometers.info/coronavirus/country/us/. 16 Georgia Department of Public Health COVID-19 Daily Status Report (May 7, 2020), https://dph.georgia.gov/covid-19-daily-status-report.
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high poverty rates.17 It is also in the top three states with the largest number of rural hospital closures in the last ten years.18
31. Moreover, elected leaders, medical professionals, and other public health experts have expressed concern over Governor Kemp’s recent decision to lift the statewide shelter-inplace order and permit the reopening of certain businesses.19 Indeed, early data shows that the incidence rate of COVID-19 (i.e., the number of cases for every 100,000 people) has increased by more than 40% since the reopening of the state.20
32. Due to the lack of widespread testing available in the United States, including in Georgia, the number of confirmed cases is likely but a fraction of the true number of COVID-19 cases. A new Harvard analysis shows that several states—and the United States as a whole—still
17 Alan Judd, In hard-hit Georgia, virus expected to linger, The Atlanta Journal-Constitution (Mar. 26, 2020), https://www.ajc.com/news/hard-hit-georgia-virus-expectedlinger/AYMvVN9SIq8A0RUgUzIt5O/. 18 Ayla Ellison. State-by-state breakdown of 113 rural hospital closures, Becker’s Hospital Review (August 26, 2019), https://www.beckershospitalreview.com/finance/state-by-statebreakdown-of-113-rural-hospital-closures-082619.html. 19 Ryan Kruger, Health officials worry Gov. Kemp reopening Georgia too soon, 11 Alive (April 21, 2020), https://www.11alive.com/article/news/health/coronavirus/georgia-reopening-toosoon-some-health-officials-worry/85-c19f2070-2d3e-4ed3-96f2-657d7a8f6c0f; Eric Bradner, Georgia Gov. Brian Kemp faces resistance over move to reopen economy, CNN (April 21, 2020), https://www.cnn.com/2020/04/21/politics/georgia-governor-coronavirusbacklash/index.html 20 Kevin Murnane, The Risk Of Exposure To Covid-19 In Georgia Has Increased By More Than 40% Since The State Reopened for Business, Forbes (May 4, 2020), https://www.forbes.com/sites/kevinmurnane/2020/05/04/the-risk-of-exposure-to-covid-19-ingeorgia-has-increased-by-more-than-40-since-the-state-reopened-for-business/#4a5393d221b9
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fall far short of the level of testing needed to safely relax shelter-in-place orders.21 According to the study, Georgia should be performing 9,600 to 10,000 tests daily but currently averages only 4,000 tests per day.22 Because of the shortage of tests in the United States—admitted to be a “failing” by top infectious disease expert Dr. Anthony Fauci23—the CDC currently recommends prioritizing testing for symptomatic healthcare providers and hospitalized patients24—which means that the number of diagnosed COVID-19 cases may be only the tip of a very large iceberg.25
i. Transmission of COVID-19 33. COVID-19 easily spreads through respiratory droplets that an infected person expels when they cough, sneeze, speak, or breathe. Transmission occurs if these virus-carrying droplets land directly on a nearby person’s nose or mouth. It can also occur when a person inhales these droplets or touches a contaminated surface and then touches their mouth, nose, or eyes.26
21 Sharon Begley, Many states are far short of Covid-19 testing levels needed for safe reopening, new analysis shows (April 27, 2020), https://www.statnews.com/2020/04/27/coronavirus-manystates-short-of-testing-levels-needed-for-safe-reopening. 22 Id. 23 Elizabeth Chuck, ‘It is a failing. Let’s admit,’ Fauci says of coronavirus testing capacity NBC News (Mar. 12, 2020), https://www.nbcnews.com/health/health-news/it-failing-let-s-admit-itfauci-says-coronavirus-testing-n1157036. 24 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), Evaluating and Testing Persons for Coronavirus Disease 2019 (COVID-19) (last updated Mar. 24, 2020), https://www.cdc.gov/coronavirus/2019-nCoV/hcp/clinical-criteria.html. 25 George Citroner, How Many People in the United States Actually Have COVID-19?, Healthline (Mar. 18, 2020), https://www.healthline.com/health-news/how-many-coronaviruscases-are-there. 26 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), How Coronavirus Spreads (last reviewed Apr. 13, 2020), https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/how-covid-spreads.html.
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The coronavirus can survive up to four hours on copper, 24 hours on cardboard, and two to three days on plastic and stainless steel.27
34. COVID-19 can also be transmitted through inhalation of smaller virus-carrying particles an infected person emits when they breathe.28 Compared with droplets, which are heavier and thought to travel only a short distance before falling to the floor or onto other surfaces, these particles can linger in the air for much longer (i.e., become aerosolized), travel farther, and build up over time in enclosed spaces.29 Coronavirus may also be spread through viral shedding in stool.30 New studies on the potential transmission of COVID-19 through aerosolized viral particles emphasize the importance of good ventilation, limiting crowds, and careful sanitation efforts.31
35. Many people with COVID-19 remain completely asymptomatic but can still spread the disease. Likewise, infected people who eventually develop symptoms are contagious even when they are pre-symptomatic and may account for 50% of transmissions. Interventions that
27 Harvard Health Publishing, COVID-19 Basics, Harvard Medical School, Coronavirus Resource Center (last updated Apr. 22, 2020), https://www.health.harvard.edu/diseases-andconditions/covid-19-basics. 28 Lisa Brosseau, ScD, Commentary: COVID-19 transmission messages should hinge on science, University of Minnesota Center for Infectious Disease Research and Policy (March 16, 2020), https://www.cidrap.umn.edu/news-perspective/2020/03/commentary-covid-19-transmissionmessages-should-hinge-science. 29 Id. 30 Joshua L. Santarpia, Danielle N Rivera, and Vicki Herrera, et al., Transmission Potential of SARS-CoV-2 in Viral Shedding Observed at the University of Nebraska Medical Center (March 26, 2020), https://www.medrxiv.org/content/10.1101/2020.03.23.20039446v2. 31 Marthe Foucade, Coronavirus Lingers in the Air of Crowded Spaces, New Study Finds (April 27, 2020), https://www.bloomberg.com/news/articles/2020-04-27/coronavirus-lingers-in-air-ofcrowded-spaces-new-study-finds.
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isolate or quarantine only symptomatic individuals, therefore, cannot effectively contain transmission.
ii. Symptoms of COVID-19, Underlying Risks Factors, and Long-Term Effects
36. Even though it causes only mild symptoms or no symptoms at all for some, COVID-19 can, for others, result in more serious injury, including respiratory failure, kidney failure, other long-term organ damage, and even death.
37. Older individuals and those with certain medical conditions are at particularly high risk for serious illness or death from COVID-19. Medical conditions that increase the risk of severe illness or death from COVID-19 for individuals of any age include blood disorders, chronic kidney or liver disease, diseases that compromise the immune system (e.g., HIV), diabetes and other endocrine disorders, metabolic disorders, heart and lung disease, neurological and neurodevelopmental conditions, and current or recent pregnancy.
38. Infected individuals can face prolonged treatment and recovery periods, requiring intensive hospital care and ventilators that are in increasingly short supply. Those who do not die can suffer serious damage to the lungs, heart, liver, or other organs.32 Preliminary data from the United States shows a high prevalence of one or more underlying medical conditions among patients requiring Intensive Care Unit (“ICU”) admission.33
32 Lisa Maragakis, M.D., M.P.H., I’ve been diagnosed with the new coronavirus disease, COVID-19. What should I expect? Johns Hopkins Medicine (last updated Apr. 17, 2020), https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/diagnosed-withcovid-19-what-to-expect. 33 CDC COVID-19 Response Team, Centers for Disease Control and Prevention, Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019 – United States, February 12-March 28, 2020 (Apr. 3, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6913e2.htm?s_cid=mm6913e2_w.
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39. Complications from COVID-19 can manifest at an alarming pace. Patients can go from being medically stable with no need for supplemental oxygen to requiring intubation and ventilator-assisted breathing within 24 hours. Various studies estimate that the average length of time from onset of symptoms to hospitalization or the development of severe symptoms is only 79 days.
iii. Prevention of COVID-19 Transmission 40. There is currently no vaccine against or cure for COVID-19. Nor are there any known prophylactic medications that will prevent or reduce the risk of a COVID-19 infection. Therefore, the only effective way to protect people against the risk of serious illness or death from COVID-19 is to limit their exposure to the virus through social distancing—i.e., physical separation of at least six feet from all others and staying at home as much as possible—vigilant hygiene, including frequent and thorough handwashing with soap and water, and frequent cleaning and disinfecting.34 41. The CDC advises that social distancing is “especially important for people who are at higher risk of getting very sick.”35 The CDC also now recommends that everyone wear cloth face coverings in public, though emphasizes that face coverings are in no way a replacement for social distancing measures.36
34 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), How to Protect Yourself (last reviewed Apr. 13, 2020), https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/prevention.html. 35 Id. 36 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), Recommendation Regarding the Use of Cloth Face Coverings, Especially in Areas of Significant Community-Based Transmission (last reviewed Apr. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html.
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42. The CDC also advises that after an infected person has been present in a room for more than a few minutes while coughing or sneezing, it is possible that air inside the room could remain potentially infectious.37 Thus, for a room to be safe for someone not wearing personal protective equipment (“PPE”), the CDC advises following its general guidance on airborne pathogen clearance rates under differing ventilation conditions.38
43. The high incidence of asymptomatic transmission, alongside the nationwide dearth of diagnostic tests to identify and isolate infected individuals, necessitate strict social distancing measures to interrupt transmission.
44. Social distancing reduces the average number of contacts between people, which lowers every individual’s risk both for acquiring COVID-19 and transmitting it to another person.
45. Strict social distancing measures have proven effective in reducing the transmission of COVID-19. On January 23, 2020, the Chinese government instituted a complete lockdown of Wuhan, China, where the COVID-19 outbreak began, to attempt to fight the spread of the virus. They shut down all schools, offices, and factories and banned private vehicles from city streets. This lockdown expanded to other cities in Hubei province over the next several days, eventually extending to some 60 million people in China.39 Following the lockdown, Wuhan saw a sustained
37 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), Healthcare Infection Prevention and Control FAQs for COVID-19 (last visited Apr. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-faq.html. 38 Id. (citing Centers for Disease Control and Prevention, Infection Control, Appendix B. Air (last reviewed July 22, 2019), https://www.cdc.gov/infectioncontrol/guidelines/environmental/appendix/air.html#tableb1). 39 Amy Gunia, China’s Draconian Lockdown Is Getting Credit for Slowing Coronavirus. Would It Work Anywhere Else?, Time Magazine (Mar. 13, 2020), https://time.com/5796425/chinacoronavirus-lockdown/.
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decrease in transmission of COVID-19, and two months later, the daily number of reported cases dropped to zero.
46. Throughout the world, other countries have also implemented drastic social distancing measures in an effort to control the COVID-19 pandemic and protect people’s health and lives. France, for example, imposed a strict nationwide lockdown, prohibiting gatherings of any size and ordering all residents to stay at home.40 Overall, countries encompassing an estimated one third of the world’s population have enacted similar restrictions.41 Across the United States, cities and states have also imposed different measures to effectuate social distancing.42
B. COVID-19 Will Likely Ravage Jails, Prisons, and Detention Centers 47. Imprisoned populations, including those in ICE detention facilities, are at higher risk for infectious disease, as compared to the general population. Factors that heighten their risk include poor sanitation, high population density, and “a higher prevalence of infectious and chronic diseases and . . . poorer health than the general population, even at younger ages.”43
40 Bryan Pietsch, ‘We are at war’: France’s president just announced a 15-day lockdown, banning public gatherings and walks outdoors, Business Insider (Mar. 16, 2020), https://www.businessinsider.com/coronavirus-france-president-macron-announces-15-daylockdown-2020-3. 41 Juliana Kaplan, Lauren Frias, & Morgan McFall-Johnson, A Third of the Global Population Is On Coronavirus Lockdown, Business Insider (last updated Apr. 23, 2020) https://www.businessinsider.com/countries-on-lockdown-coronavirus-italy-2020-3. 42 Sarah Mervosh Jasmine C. Lee, Lazaro Gamio, and Nadja Popovich, See Which States Are Reopening and Which Are Still Shut Down, The New York Times (last updated May 6, 2020) https://www.nytimes.com/interactive/2020/us/states-reopen-map-coronavirus.html. 43 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020, last reviewed May 6, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html [hereinafter CDC Guidance].
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48. Dr. Scott Allen and Dr. Josiah Rich, experts in the fields of detention health, infectious disease, and public health who advise DHS’s Office of Civil Rights and Civil Liberties, have urged Congress to take immediate actions to slow the spread of COVID-19 in ICE detention centers, including releasing immigrants to facilitate social distancing—which, they say, is an “oxymoron” in congregate settings.44
49. In March 2020, over 3,000 medical professionals across the United States also urged ICE to release individuals and families from detention “to prevent the spread of COVID-19 and mitigate the harm of an outbreak” to detained individuals, as well as to facility staff.45 They warned that social distancing measures recommended by the CDC are nearly impossible in immigration detention and that large-scale quarantines may be unfeasible at ICE facilities. They also expressed concern that “isolation may be misused and place individuals at higher risk of neglect and death.”
50. Like these and other experts,46 Drs. Allen and Rich also warned of the dire consequences that a COVID-19 outbreak within an ICE detention facility would have on the community outside the facility. They describe a “tinderbox” scenario where a rapid outbreak inside a facility would result in the hospitalization of multiple detained people in a short period of time,
44 Scott A. Allen, MD, FACP and Josiah Rich, MD, MPH Letter to Congress (Mar. 19, 2020) https://assets.documentcloud.org/documents/6816336/032020-Letter-From-Drs-Allen-Rich-toCongress-Re.pdf. 45 Janus Rose, Thousands of Doctors Demand ICE Release Detainees to Stop a COVID-19 Disaster, Vice.com (Mar. 18, 2020), https://www.vice.com/en_us/article/4agp4w/thousands-ofdoctors-demand-ice-release-detainees-to-stop-a-covid-19-disaster. 46 See, e.g., Rich Schapiro, Coronavirus could ‘wreak havoc’ on U.S. jails, experts warn, NBC News (Mar. 12, 2020), https://www.nbcnews.com/news/us-news/coronavirus-could-wreakhavoc-u-s-jails-experts-warn-n1156586 (“An outbreak of the deadly virus inside the walls of a U.S. prison or jail is now a question of when, not if, according to health experts.”).
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which would then spread the virus to the surrounding community and create a demand for ventilators far exceeding the supply.
51. Once a disease is introduced into a jail, prison, or detention facility, it spreads faster than under most other circumstances due to overcrowding, poor sanitation and hygiene, poor ventilation, and lack of access to adequate medical services. For these same reasons, the outbreak is harder to control.47 The severe outbreaks of COVID-19 in congregate environments, such as cruise ships and nursing homes, illustrate just how rapidly and widely COVID-19 would rip through an ICE detention facility. On the Diamond Princess cruise ship, for example, approximately 700 passengers and crew on board were infected over the course of three weeks despite the initiation of quarantine protocols.
52. Good hygiene is also critical to reducing exposure to COVID-19, but the notoriously unsanitary conditions in detention centers and ICE’s meager provision of hygiene and cleaning products rob detained individuals of the ability to practice good hygiene.
53. ICE’s past inept handling of infectious disease outbreaks in detention centers foreshadows the impact once COVID-19 hits these facilities. In 2019, a mumps outbreak across 57 immigration detention facilities throughout the country led to almost 900 cases of mumps
47 Christina Potter, Outbreaks in Migrant Detention Facilities, Outbreak Observatory (Jul. 11, 2019), https://www.outbreakobservatory.org/outbreakthursday-1/7/11/2019/outbreaks-inmigrant-detention-facilities.
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contracted inside the facilities48 before the outbreak spread to surrounding communities.49 ICE and
CBP facilities have also been sites of other infectious outbreaks in recent years,50 as have other
prisons and jails.51
54. COVID-19 is indeed already spreading rapidly inside prisons and jails across the
United States,52 including in Georgia.53 A jail in Chicago exploded from two confirmed cases to
more than 350 in the course of two weeks—despite isolation of the first two confirmed cases. 54 A
48 Leung J, Elson D, Sanders K, et al. Notes from the Field: Mumps in Detention Facilities that House Detained Migrants—United States, September 2018–August 2019, MMWR Morb Mortal Wkly, 749–50 (Aug. 30, 2019), https://www.cdc.gov/mmwr/volumes/68/wr/pdfs/mm6834a4H.pdf; Roxanne Scott, Stewart Detention Center Watches For New Cases Of Mumps, WABE (Mar. 8, 2019), https://www.wabe.org/stewart-detention-center-watches-for-new-cases-ofmumps/. 49 See Terrence McDonald, Bergen County Won’t Say if Mumps Outbreak Affects Only Immigrant Detainees, Northjersey.com (Jun. 13, 2019), https://www.northjersey.com/story/news/bergen/2019/06/13/bergen-county-nj-wont-say-if-jailmumps-outbreak-hit-only-ice-inmates/1448708001. In addition, in 2019, thousands of individuals in 39 immigration detention centers across the country were exposed to chickenpox. See Emma Ockerman, Migrant Detention Centers Are Getting Slammed with Mumps and Chickenpox, Vice News (Jun. 14, 2020), https://www.vice.com/en_us/article/mb8k5q/migrantdetention-centers-are-getting-slammed-with-mumps-and-chicken-pox. 50 Christina Potter, Outbreak Observatory supra n. 48, (describing outbreaks of acute respiratory illnesses like influenza, and other diseases like scabies and chickenpox). 51 J. O’Grady, et al., Tuberculosis in prisons: anatomy of global neglect, European Respiratory Journal (2011), https://erj.ersjournals.com/content/38/4/752.short (stating that tuberculosis prevalence among prisoners worldwide can be up to 50 times higher than national averages). 52 Emma Grey Ellis, Covid-19 Poses a Heightened Threat in jails and Prisons, wired.com (Mar. 24, 2020), https://www.wired.com/story/coronavirus-covid-19-jails-prisons/. 53 Joshua Sharpe and Christian Boone, Ga. Inmate dies from COVID-19 as virus hits more prisons, The Atlanta Journal-Constitution (Mar. 27, 2020), https://www.ajc.com/news/local/breaking-inmate-dies-from-covid-outbreak-worsensprison/TzQZL4uXfK4GzH9ebSFNQN/. 54 Timothy Williams and Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars, New York Times (April 8, 2020), https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jail-chicago.html.
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single prison in Ohio has reported that nearly 2,000 imprisoned individuals—approximately 80% of the total incarcerated population—have tested positive for COVID-19; so far, five prisoners and one correctional officer have died from this outbreak.55 In Louisiana, nearly every woman in a prison dormitory—approximately 200 in total—recently tested positive for COVID-19.56 At a privately run prison in Tennessee, 1,299 of 2,444 incarcerated individuals were confirmed to have COVID-19 as of May 1, 2020.57 A new analysis studying the spread of COVID-19 through jails projects that nearly 100,000 more people could die of coronavirus in the U.S. unless “drastic reforms” are made at jails, including significant population reductions and strict social distancing.58
55. These large prison outbreaks were discovered only after prison officials undertook mass testing that included asymptomatic individuals. At the Ohio prison, 95% of people who tested positive did not have any symptoms; in the case of the prison dormitory in Louisiana, two thirds. And at the prison in Tennessee where roughly half of the incarcerated population is infected, the vast majority of positive cases also exhibited no symptoms, prompting Tennessee to plan to test
55 Mohammed Syed and Jareen Imam, Inmates fear death as Ohio prison is overwhelmed by coronavirus, NBC News (April 29, 2020), https://www.nbcnews.com/news/us-news/inmatesfear-death-ohio-prison-overwhelmed-coronavirus-n1194786 56 Janet McConnaughey, Nearly entire Louisiana prison dorm tests positive for virus, Associated Press (May 5, 2020), https://apnews.com/f31d0a19272193a0f461eb96e5c3d23d 57 Jonathan Mattise, 1,299 inmates test positive for virus at Tennessee prison, Associated Press (May 1, 2020), https://apnews.com/5d0dde8eaa0385c9fd97e1545a5857da 58 American Civil Liberties Union, Flattening the Curve: Why Reducing Jail Populations Is Key to Beating COVID-19, (last visited Apr. 24, 2020) https://www.aclu.org/report/flattening-curvewhy-reducing-jail-populations-key-beating-covid-19?redirect=covidinjails. This analysis applies to jails alone, and “[doesn’t] even account for prisons and immigration detention centers.” Id. at 4.
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its entire state prison population and all state prison staff. The significant spread through asymptomatic people in each of these cases suggests that the true number of cases is grossly underreported in congregate settings where aggressive testing is not done.59
56. Even with insufficient testing and other known gaps in ICE’s data collection, the numbers show significant spread in ICE detention facilities. As of May 7, 2020, ICE had publicly reported that 705 detained individuals and 39 employees in at least 44 detention facilities had tested positive for COVID-19.60 These numbers do not include any contract staff, any detained individuals who tested positive after leaving ICE premises, or any individuals held in facilities not run by ICE.61
57. These numbers also fail to capture the scores of detained individuals who have been exposed to COVID-19 but not tested. Respondent Albence recently admitted to Members of Congress that the agency has a limited number of test kits but would “certainly do more testing” if more test kits were available.62 As of May 6, 2020, ICE had reportedly tested only 1,460 individuals in its custody, representing roughly 4.9% of its total detained population.63 Less than
59 See supra n. 56, 57, 58. 60 U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, ICE Guidance on COVID-19 (last updated May 6, 2020), https://www.ice.gov/covid19 [hereinafter ICE Guidance on COVID-19]. 61 Tanvi Misra, ICE’s COVID-19 test figures hint at health crisis in detention, Roll Call (April 17, 2020), https://www.rollcall.com/2020/04/17/ices-covid-19-test-figures-hint-at-health-crisisin-detention/?emci=28c66e67-2a80-ea11-a94c-00155d03b1e8&emdi=cf21f97e-6182-ea11-a94c00155d03b1e8&ceid=6006620. 62 House Committee on Oversight & Reform, DHS Officials Refuse to Release Asylum Seekers and Other Non-Violent Detainees Despite Spread of Coronavirus (Apr. 17, 2020), https://oversight.house.gov/news/press-releases/dhs-officials-refuse-to-release-asylum-seekersand-other-non-violent-detainees [hereinafter DHS Officials Refuse to Release Asylum Seekers]. 63 ICE Guidance on COVID-19 (last updated May 6, 2020).
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20% of the 7 million COVID-19 tests conducted nationally have come back positive; of the people in ICE detention who have been tested, roughly 50% have been infected.64
58. Nationally and internationally, governments and jail and prison staff are responding to the unique threat posed by COVID-19 in carceral settings. Authorities in Iran,65 Ethiopia,66 the Democratic Republic of Congo,67 Indonesia,68 Poland69, and several states across the U.S., including Texas,70Minnesota, Nevada, Alabama, Pennsylvania, New York, California, Maine, and
64 Gaby Del Valle and Jack Herrera, ICE Detention Centers First Brought Jobs to the Rural South. Now, They’re Bringing Covid-19, Politico (May 5, 2020), https://www.politico.com/news/magazine/2020/05/05/coronavirus-ice-detention-ruralcommunities-186688 65 Babk Dehghanpisheh and Stephanie Nebehay, Iran Temporarily Releases 70,000 Prisoners as Coronavirus Cases Surge, Reuters (Mar. 9, 2020), https://www.reuters.com/article/us-healthcoronavirus-iran/iran-temporarily-releases-70000-prisoners-as-coronavirus-cases-surgeidUSKBN20W1E5. 66 Bukola Adebayo, Ethiopia pardons more than 4,000 prisoners to help prevent coronavirus spread, CNN (Mar. 26, 2020), https://www.cnn.com/2020/03/26/africa/ethiopia-pardons-4000prisoners-over-coronavirus/index.html. 67 Human Rights Watch, SDR Congo: Prisons Face Covid-19 Catastrophe (Apr. 17, 2020), https://www.hrw.org/news/2020/04/17/dr-congo-prisons-face-covid-19-catastrophe#. 68 Nicky Aulia Widadio and Erric Permana, Indonesia releases 22,000 prisoners over COVID-19 fears, AA (Mar. 4, 2020), https://www.aa.com.tr/en/asia-pacific/indonesia-releases-22-000prisoners-over-covid-19-fears/1791209. 69 Adela Suliman, Andy Eckardt, and Gabe Joselow, Coronavirus prompts prisoner releases around the world, NBC News (March 26, 2020), https://www.nbcnews.com/news/world/coronavirus-prompts-prisoner-releases-around-worldn1169426. 70 Dillon Collier, Bexar County jail population down more than 500 inmates after release of nonviolent offenders, KSAT.com (last updated Mar. 25, 2020), https://www.ksat.com/news/local/2020/03/25/bexar-county-jail-population-down-more-than500-inmates-after-release-of-nonviolent-offenders/.
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Louisiana,71 have all released people to mitigate the harm that the spread of COVID-19 will cause.
Some jails in Georgia have done the same,72 including Dougherty County Detention Center in
Albany, which is suffering from one of the most severe outbreaks in the state.73 The Federal Bureau
of Prisons has also instructed prison directors to prioritize releasing federal inmates to home
confinement, taking into consideration factors including “[t]he age and vulnerability of the inmate
to COVID-19, in accordance with the [CDC] guidelines.”74
59. ICE, on the other hand, continues to bring new people into detention centers and
to transfer previously detained people between facilities.75 Some detained people have staged
public protests, including initiating hunger strikes and threatening suicide, to express their fear and
71 Prison Policy Initiative, Responses to the COVID-19 Pandemic (last updated April 23, 2020), https://www.prisonpolicy.org/virus/virusresponse.html. 72 Christian Boone, Hall, Fulton counties releasing nonviolent offenders early as virus looms, The Atlanta Journal-Constitution (Mar. 23, 2020), https://www.ajc.com/news/crime--law/hallfulton-counties-releasing-nonviolent-offenders-early-virus-looms/lOZTaZ9lVSwoy38Cp6XJIP/. 73 Stanley Dunlap, Georgia jailers cope with COVID-19; release inmates, quarantine arrivals, Georgia Recorder (Mar. 30, 2020), https://georgiarecorder.com/2020/03/30/georgia-jailers-copewith-covid-19-release-inmates-quarantine-arrivals/. 74 Office of the Attorney General, Washington, DC, Memorandum for Director of Bureau of Prisons, Prioritization of Home Confinement As Appropriate in Response to COVID-19 Pandemic (Mar. 26, 2020), https://www.politico.com/f/?id=00000171-1826-d4a1-ad77fda671420000. 75 See Richard Hall, Coronavirus: ICE Crackdown Stokes Fears for Safety of Undocumented Immigrants During Pandemic, Independent (Mar. 13, 2020), https://www.msn.com/engb/news/world/coronavirus-ice-crackdown-stokes-fears-for-safety-of-undocumentedimmigrants-during-pandemic/ar-BB119hw8 (noting that “[i]n New York, immigration advocates have noted a marked increase in ICE activity in recent months, which has not slowed as the coronavirus outbreak has worsened.”). On March 18, 2020, ICE announced it would “temporarily adjust” its enforcement practices during the COVID-19 outbreak,” but declined to say it would stop arresting people altogether. See Rebecca Klar, ICE Pausing Most Enforcement During Coronavirus Crisis, The Hill (Mar. 18, 2020), https://thehill.com/latino/488362-icepausing-most-immigration-enforcement-during-coronavirus-crisis.
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outrage at being housed with newly arriving individuals who may have been exposed to COVID19.76 The transference of detained people between different facilities is particularly risky because ICE often transports people over vast distances across multiple states.77 According to one immigration attorney, a typical trip for someone arrested by ICE might include a three-day stay at a jail in one state, then a transfer to another jail in another state—all before ending up at an ICE detention center in yet another state. During that time period, detained people are shuffled through different cramped jails, buses, and flights and come into contact with dozens, if not hundreds, of other people. By the time they enter the general population at an ICE detention facility, they are carrying germs from countless different places and people.78
60. Staff is also an especially dangerous vector for a COVID-19 outbreak within a detention center since they regularly travel back and forth between their outside communities and the detention facilities where they work. In addition, one public health expert worried that detention facility workers who juggle multiple jobs may feel pressure to downplay or even hide symptoms as they struggle to support their families.79 This unfortunate economic reality can have potentially deadly consequences to detained individuals.
76 Ice detainees threaten suicide, stage protests over coronavirus fears, The Washington Post (Mar. 25, 2020) https://www.washingtonpost.com/video/national/ice-detainees-threaten-suicidestage-protests-over-coronavirus-fears/2020/03/25/8232738e-0b1e-4fdb-8538456e269a8eb7_video.html. 77 Gaby Del Valle and Jack Herrera, ICE Detention Centers First Brought Jobs to the Rural South. Now, They’re Bringing Covid-19, Politico (May 5, 2020), https://www.politico.com/news/magazine/2020/05/05/coronavirus-ice-detention-ruralcommunities-186688. 78 Id. 79 Id.
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61. At the same time, infection will also flow in the opposite direction, from within a detention facility to the outside community. COVID-19 can spread from a detained individual to facility staff to family members of staff and, ultimately, to nearby cities and towns. An outbreak of COVID-19 within an ICE facility thus poses grave danger not only to the incarcerated population but also to guards, other facility staff, and everyone who lives and works in the surrounding local communities. Detention facility workers have expressed fear that ICE’s detention practices during the COVID-19 pandemic will endanger them and their families.80 In late April, two guards at an ICE detention facility in Louisiana died after contracting COVID-19.81
C. Folkston Detention Center Is Primed for COVID-19 Exposure and Severe Outbreaks i. Existing Conditions at Folkston Will Further Enable COVID-19 Transmission
62. The ICE Atlanta Field Office currently detains an estimated 1,000 noncitizens at Folkston.
63. ICE cannot prevent the spread of COVID-19 inside Folkston. The design of immigration detention facilities generally, and Folkston in particular, requires detained individuals to remain in close contact with one another.
64. Folkston houses people in very close quarters, making social distancing and the recommended hygiene measures effectively impossible. Most people sleep in bunk rooms housing dozens of immigrants—where beds are only a few feet apart from each other—and use shared
80 Id. 81 Nomann Merchant, 2 guards at ICE jail die after contracting coronavirus (April 29, 2020), https://abcnews.go.com/Health/wireStory/guards-ice-jail-die-contracting-coronavirus-70412840.
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toilets and showers. Folkston also has some smaller cells housing multiple people with shared bathrooms. People regularly congregate in common areas of their housing units.82
65. The conditions at Folkston are also flagrantly unsanitary and dangerous to the health of detained individuals. Private contractors operate Folkston, and the DHS Office of Inspector General has repeatedly concluded that ICE fails to hold detention facility contractors accountable for meeting performance standards required to ensure humane conditions.83
66. At Folkston, food preparation and service are communal with little opportunity for surface disinfection. Detained people, overseen by food service contractors, staff the kitchens. People detained in Folkston have reported being served food that is undercooked or spoiled.
ii. Folkston Has a Dismal Medical Care Track Record and Are Currently Ignoring Reported COVID-19 Symptoms Among the Detained Population
67. Respondents have consistently failed to provide even minimally adequate medical care to individuals detained at Folkston. They cannot possibly be trusted to protect those in their custody from a potentially lethal infectious disease outbreak that has overwhelmed healthcare systems around the world.
68. Critical medical care is routinely delayed—sometimes for months—or denied outright.
82 Keith Gardner, dvids.net, Folkston Processing Center B-Roll (Apr. 4, 2017), https://www.dvidshub.net/video/529423/folkston-processing-center-b-roll 83 See U.S. Department of Homeland Security, Office of the Inspector General, OIG-19-18, ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards, 1 (Jan. 29, 2019), https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf; U.S. Department of Homeland Security, Office of the Inspector General, OIG-18-67, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, 1 (Jun. 26, 2018), https://www.oig.dhs.gov/sites/default/files/assets/20//18-06/OIG-18-67-Jun18.pdf.
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69. Detained people at Folkston have reported to advocates that medical staff regularly dismiss detained people’s medical concerns or ridicule them as “dramatic.” On one occasion, other detained individuals had to stage a protest to demand a response to a person exhibiting signs of severe medical distress. In another case, Folkston staff ignored a man and his attorney’s repeated requests to go to the emergency room due to excruciating abdominal pain. His appendix later ruptured.
70. When detained people at Folkston do manage to get the attention of a medical provider, they are often given substandard care or are not provided with the proper medications.
71. Detained individuals with diabetes—a condition that the CDC considers a risk factor for severe COVID-19, “particularly if not well controlled”84—have reported diets that are inadequate given their medical needs. Petitioner David Fernandez has received as few as three out of the fourteen insulin injections per week he requires to manage his diabetes, which has left him so weak and tired that he could not stand up.
72. The history of inadequate medical care at Folkston is consistent with an alarming pattern of medical neglect among ICE detention facilities generally. Government records recently obtained through the Freedom of Information Act reveal several instances where investigators found that ICE’s medical negligence contributed to the death of an individual in its custody.85
84 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), People who are at higher risk for severe illness (last reviewed Mar. 31, 2020), https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/people-at-higher-risk.html 85 Katherine Hawkins and Emma Stodder, Past Deaths in Custody Highlight Dire Risks for Immigration Detainees During Coronavirus Outbreak (April 29, 2020), https://www.pogo.org/investigation/2020/04/past-deaths-in-custody-highlight-dire-risks-forimmigration-detainees-during-coronavirus-outbreak/
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73. In the context of the COVID-19 pandemic, early reports indicate that ICE is using the same playbook—ignoring pleas for help, threatening those who seek medical care with punishment, and waiting until it may be too late.
74. Preliminary data suggests that a person with COVID-19 is most infectious during the early stage of the disease.86 Early, proactive action is necessary to prevent the virus’s spread. The well-documented failure to provide adequate and timely medical care at Folkston is the mark of a system that cannot possibly cope with the spread of COVID-19.
iii. COVID-19 Has Already Reached Folkston Detention Center and Will Continue to Spread
75. As of May 6, 2020, there was at least one confirmed case of COVID-19 among the detained people at Folkston.87 And in Charlton County, where Folkston is located, there were 13 reported cases as of May 6, 2020.88 Jacksonville, Florida—which is about 45 miles away and the closest metro area to Folkston—is also experiencing community spread. In Duval County, where Jacksonville is located, there were 1,077 confirmed cases as of May 6, 2020.89
86 Helen Branswell, People ‘shed’ high levels of coronavirus, study finds, but most are likely not infectious after recovery begins, statnews.com (Mar. 9, 2020), https://www.statnews.com/2020/03/09/people-shed-high-levels-of-coronavirus-study-finds-butmost-are-likely-not-infectious-after-recovery-begins/ 87 ICE Guidance on COVID-19 (last updated May 6, 2020), https://www.ice.gov/coronavirus; Dkt. 29-1 ¶ 3. 88 Georgia Department of Public Health COVID-19 Daily Status Report (lasted updated May 6, 2020). 89 Florida Department of Health, Division of Disease Control and Health Protection, Florida’s COVID-19 data and Surveillance Dashboard, (last updated May 6, 2020) https://experience.arcgis.com/experience/96dd742462124fa0b38ddedb9b25e429
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76. Given the evidence of community spread in Folkston and other surrounding communities, the frequent comings and goings of people at the detention center increase Petitioners’ risk of exposure to COVID-19.
77. In particular, staff at Folkston arrive and leave on a shift basis, and there is limited ability to adequately screen incoming staff for new, asymptomatic infections.
78. Attorneys also continue to visit their detained clients in Folkston because most immigration court hearings are still proceeding. Filing deadlines still apply and must be met.
79. Detained people at Folkston have reported that transfers of new immigrants into Folkston have continued throughout the COVID-19 pandemic.
80. There are myriad ways in which COVID-19 is likely to enter or has already entered Folkston, none of which Respondents can meaningfully address without blanket testing of every individual who enters. Testing shortages, however, make that impossible.
81. Since the virus is already inside Folkston and additional sources of infection continue to be daily introduced to the facility, it will be effectively impossible for Petitioners to protect themselves from infection through social distancing and vigilant hygiene.
D. The Lack of Hospital Resources Near Folkston Will Put Petitioners at Even Greater Risk
82. The local and regional hospitals near Folkston are ill-equipped to handle a COVID19 outbreak within the facility, increasing the life-threatening risks to Petitioners.
83. An outbreak of COVID-19 at Folkston would put at risk not only detained populations but also the thousands of ICE officers, medical personnel, contract workers, and many others who work in the facility, diverting crucial and limited medical resources.
84. Patients who are hospitalized for COVID-19 commonly require intensive care and a ventilator to assist breathing. Even some younger and healthier individuals who contract COVID-
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19 may require supportive care.90 The disease requires an intensive care unit with specialized medical equipment and medical staff trained to care for critically ill patients. This level of support is especially difficult to provide to detained individuals because ICE detention facilities lack adequate medical care infrastructure.
85. Folkston is geographically isolated from appropriate levels of medical care to treat COVID-19. The closest hospitals to Folkston are either critical access hospitals without the necessary facilities or regional hospitals that serve many counties and will quickly become overwhelmed if there is an outbreak within Folkston Detention Center.
86. Critical access hospitals, which are common in rural areas, generally have fewer than 25 beds and are designed to care for patients who will require fewer than 96 hours of care. Importantly, even if some have ICU-type beds, they do not have capacity for the type of long-term treatment required for COVID-19 patients. Critical access hospitals are not designed to care for critically ill patients; they are designed to stabilize and transfer patients.
87. The nearest hospital to Folkston Detention Center with ICU capabilities is Southeast Georgia Health System in Camden with only 40 beds, including 5 ICU beds, approximately 26 miles away. Patients would likely require initial transport or transfer to Southeast Georgia Health System – Brunswick with 300 beds, including 24 ICU beds, which is about 45 miles away and serves five different counties in Southeast Georgia. A coronavirus outbreak in any of these counties would overwhelm the hospital and its ICU beds.
90 Fei Zhou, MD, et al., Clinical course and risk factors for mortality of adults in patients with COVID-19 in Wuhan, china: a retrospective cohort study, The Lancet, vol. 395, issue 10229 (Mar. 11, 2020), available at https://www.thelancet.com/journals/lancet/article/PIIS01406736(20)30566-3/fulltext
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E. Respondents’ Actions to Address the Pandemic Thus Far Have Been Woefully Inadequate, and Release is the Only Adequate Response to Protect Petitioners
88. Respondents’ failure to recognize the inevitability of an outbreak at Folkston and to take adequate precautions, including releasing people and following CDC Guidance related to COVID-19, demonstrates its complete disregard for the lives of detained immigrant, including Petitioners.
i. Respondents’ Custody Review of High-Risk Individuals Has Been Largely Illusory
89. ICE has engaged in extremely limited efforts to re-evaluate the necessity of detaining medically vulnerable people. The current ICE guidance governing custody re-evaluation does not mandate or meaningfully encourage the release of Petitioners or other medically vulnerable individuals from ICE custody.91 Indeed, no Petitioner in this action has, to their knowledge, received an individualized or specialized medical evaluation related to COVID-19.
90. Instead, the policy merely directs ICE field office directors to review the custody of detained individuals with certain underlying medical conditions to determine on a “case-bycase” basis whether their continued detention is appropriate. For these custody reviews, the medical condition that puts an individual at high risk for a serious COVID-19 infection is not necessarily the “determinative factor” in the decision-making process.92 In addition, the policy treats medically vulnerable individuals differently based on which immigration detention statute governs their detention.93 And by delegating the custody re-evaluation process to field directors
91 U.S. Immigration and Customs Enforcement, ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020). 92U.S. Immigration and Customs Enforcement, Updated Guidance: COVID-19 Detained Docket Review (April 4, 2020), https://www.ice.gov/doclib/coronavirus/attk.pdf. 93 Id.
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and their staff, requiring only after-the-fact consultation with any medical professionals, and failing to include all risk factors identified by the CDC, this docket review process apparently left many people with true risk factors in detention.
91. As of April 17, 2020 ICE had released fewer than 700 medically vulnerable noncitizens under this custody re-evaluation process and indicated it does not plan to release any more.94 As of April 25, 2020, at least 29,675 men and women remained in detention facilities across the country.95
92. DHS also made clear that it considered factors aside from risk of flight, danger to the community, and risk of harm from COVID-19 as part of its custody re-determination process; indeed, Respondent Albence testified to the House Oversight Committee on April 17, 2020, that continued detention of the majority of the detained population was intended to promote deterrence of additional migration.96
93. Experts believe release from custody is both the most effective public health measure to curb transmission of COVID-19 and the only meaningful and ethical strategy to protect medically vulnerable people like Petitioners from harm.
94. The limited options available to ICE to mitigate the risk of COVID-19 to people with medical vulnerabilities, like solitary confinement, are unsafe. Placing an individual with significant medical needs in solitary confinement not only exacerbates the underlying medical
94 DHS Officials Refuse to Release Asylum Seekers, supra n.63. 95 ICE Guidance on COVID-19 (last updated April 25, 2020). 96 DHS Officials Refuse to Release Asylum Seekers, supra n.63 (“Acting Director Albence asserted that releasing non-violent immigrants to protect them from being infected and sickened with coronavirus could give the impression that the Administration is ‘not enforcing our immigration laws,’ which would be a ‘huge pull factor’ and create a ‘rush at the borders.’”).
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conditions but also creates significant, life-threatening risks. This is particularly true given the rapid and severe progression of COVID-19 and the need for responsive medical observation. Folkston does not have the space or staff to safely care for patients for this period of time.
95. Locking any detained person, with or without underlying medical conditions, in a jail cell for extended periods of time is psychologically damaging and could lead to a spike in severe depression, suicides, and other medical emergencies. In the context of an infectious disease outbreak, where onsite medical staff are operating at or over capacity, these problems will only accelerate. Isolation also increases the amount of physical contact between detention center staff and detained people due to increased handcuffing, escorting individuals to and from the showers, and increased use of force due to the increased psychological stress of isolation.
96. ICE’s response to the COVID-19 pandemic, as reflected by its half-hearted custody re-evaluation process, makes clear that it is not committed to establishing special protections for high-risk patients and is instead waiting until people become symptomatic before taking action. This puts not only Petitioners but ICE’s own personnel and the community at large at risk of a preventable disaster.
ii. Respondents Are Failing to Adhere to CDC Guidance 97. The CDC has issued Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (“CDC Guidance”) which incorporates a variety of other CDC materials on specific topics, such as recommendations for protecting people with underlying medical vulnerabilities, recommendations for healthcare providers (including
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providers within detention centers), and recommendations for employers of essential workers (including law enforcement and workers at government facilities).97
98. The CDC Guidance stresses the vital importance of ensuring social distancing,
proper hygiene, access to testing, individual isolation of people who have the virus, and quarantine
of people exposed to the virus.
99. The CDC Guidance states that it is intended for ICE, as a law enforcement agency
with custodial authority of detained populations.
100. Respondents recognize the CDC Guidance as an authoritative source regarding the
standard of care required of them during the COVID-19 pandemic. ICE has released agency
guidance stating that both dedicated and non-dedicated ICE detention facilities “must” comply with the CDC Guidance.98 In a written declaration submitted to this Court, Respondent Gartland
97 See supra n.44; Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), People Who Are at Higher Risk for Severe Illness (last reviewed Apr. 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html; Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings (last updated Apr. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-controlrecommendations.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2 F2019-ncov%2Finfection-control%2Fcontrol-recommendations.html; Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19 (last reviewed Apr. 20, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/critical-workers/implementing-safety-practices.html. The CDC defines “critical infrastructure workers” to include federal law enforcement and workers, including contractors, at government facilities. 98 See U.S. Immigration and Customs Enforcement, ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020). ICE’s contract with Geo Group also requires compliance with federal guidelines related to communicable diseases. See Performance-Based National Detention Standards 2011 Section 4.3(II)(10), https://www.ice.gov/doclib/detentionstandards/2011/pbnds2011r2016.pdf (“Centers for Disease Control and Prevention (CDC)
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confirmed that “Folkston has implemented a number of procedures in accordance with the guidelines published by the [CDC],” and repeatedly referenced the CDC Guidance as the authority guiding their practices.99 Respondent Gartland generally asserted that Folkston is in compliance with measures outlined by the CDC.100 ICE also provided to the Court a written declaration from Brian Allen, Acting ICE Assistant Field Office Director, asserting that ICE applies the CDC Guidance at Folkston and that Folkston is generally in compliance with the CDC Guidance.101
101. But reports from detained individuals and their attorneys indicate that, contrary to Respondents’ testimony, conditions at Folkston fall short of the CDC Guidance in many respects.
102. Respondents’ failure to comply with the CDC Guidance is unsurprising. ICE is unlikely to be able to ensure compliance with the CDC Guidance due to longstanding lack of information systems, quality assurance, and oversight mechanisms that are standard in other carceral settings.
a. Respondents Are Violating the CDC Guidance Regarding Social Distancing and Air Regulation
103. The CDC Guidance instructs detention facilities to “[i]mplement social distancing strategies to increase the physical space between detained/incarcerated persons (ideally 6 feet between all individuals, regardless of the presence of symptoms).”102 Under the CDC Guidance, Respondents must enforce social distancing between individuals in all locations and at all times,
guidelines for the prevention and control of infectious and communicable diseases shall be followed.”) [hereinafter “2011 PBNDS”]. 99 See generally Dkt. 29-1. 100 Id. 101 Dkt. 29-2. 102 All quoted language in Section V.E.ii. is from the CDC Guidance, supra n.44, unless otherwise indicated.
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including in holding cells, in lines and waiting areas, in recreation spaces, in housing spaces, and during meal times.
104. The CDC Guidance also recognizes that exposure to COVID-19 may occur through “contaminated air” and that, therefore, air circulation, air exchange, and ventilation all impact whether a space is safe. For example, the CDC specifies periods of time and numbers of air changes necessary “to remove potentially infectious particles” from spaces that a person with COVID-19 has occupied.103
105. Respondent Gartland attested that “[t]o stop the spread of COVID-19, Folkston has implemented a program of enhanced social distancing” by reducing pod unit counts “to the greatest extent possible.”104 He further attested that “detainees [at Folkston] have been afforded every opportunity . . . to practice social distancing measures,” and detainees “are repeatedly advised by staff to practice social distancing measures.”105
106. Contrary to Respondent Gartland’s representations, any social distancing measures implemented at Folkston do not come close to complying with those set forth in the CDC Guidance. Instead of having “every opportunity” to practice social distancing, see Dkt. 29-1 ¶ 9,
103 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings (last updated Apr. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-controlrecommendations.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2 F2019-ncov%2Finfection-control%2Fcontrol-recommendations.html; Centers for Disease Control and Prevention, Infection Control, Appendix B. Air (last reviewed July 22, 2019), https://www.cdc.gov/infectioncontrol/guidelines/environmental/appendix/air.html#tableb1. 104 Dkt. 29-1 ¶ 9. 105 Id.
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every day, on multiple occasions, detained individuals at Folkston have no opportunity to stay a safe distance away from other people.
107. At Folkston, detained people continue to be housed in pairs in cells so small that two individuals cannot be in the cell at the same time and remain six feet apart. In some parts of the facility, they even continue to be housed in crowded, open dorms with bunk beds lined up no more than a few feet apart. Indeed, Petitioner Kumar reports in his May 4, 2020 declaration that he is housed in an open dormitory with approximately 58 other detainees who sleep in bunk beds 2 to 3 feet apart.
108. For some detained people, housing conditions have worsened since the TRO hearing on April 15, 2020. For example, on Friday, May 1, 2020, Petitioner Fernandez and others in his pod unit were forced to transfer from pod unit B5 to pod unit B3, despite the concerns they voiced that pod unit B3 may be contaminated with COVID-19. At the time Petitioner Fernandez was relocated, he was in a cell by himself. He is now sharing a cell and a bunk bed with another person. His current cell is smaller than his prior cell.
109. Social distancing outside cells also continues to be impossible at Folkston. The common areas shared by all detained people in each pod unit are too small and crowded to allow people to remain six feet apart. Each day, people detained in pod units together have no choice but to touch many shared items, such as microwaves, phones, door handles, water containers, and televisions.
110. Similarly, detained people at Folkston are still forced to shower and use the toilet in very close quarters. Some people have a shower and a toilet inside their small cells; others use communal showers and toilets that they share with their entire pod unit. Petitioner Kumar is in the latter category, and about 59 people in his pod unit use the same set of four toilets, two urinals,
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and six working showers. In both pod units with shared cells and dormitory housing, the toilets and showers are not cleaned between uses and the toilets do not have lids. In either situation, detained individuals are not able to shower or use the bathroom while maintaining six feet of distance from other people.
111. In addition to when they sleep, eat, shower, and use the toilet, there are numerous other times throughout the day when detained people cannot avoid close contact with each other. For example, at least three times a day, detained people are required to line up close together to go to the cafeteria or other places, often standing so close to one another that they are “back-to-belly.” When walking from their pod units to the cafeteria, yard, or medical unit, detained people not only come in contact with people from their own units, but also with individuals from other units they pass on their way.
112. Finally, contrary to directives in the CDC Guidance, the minimal social distancing practices implemented by Respondents are not enforced.
b. Respondents Are Violating the CDC Guidance Related to Hygiene 113. The CDC Guidance requires Respondents to “[p]rovide a no-cost supply of soap” to the detained population “sufficient to allow frequent handwashing” for 20 seconds at a time; to “provide and continually restock hygiene supplies throughout the facility”; and to provide “nocost access to” running water and either hand drying machines or disposable paper towels for hand washing. They must also supply detained individuals with tissues and no-touch trash receptacles for their disposal. 114. Contrary to Respondent Gartland’s testimony that hand sanitizer and soap are available in unlimited supply, detained immigrants at Folkston report that, until recently, the only soap provided for handwashing and showering was liquid soap or shampoo in single-use packages
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that ICE periodically passed out. Some petitioners report that they started receiving one bar of soap per week in April or May 2020.
115. No additional soap is available in the showers or pod units. Petitioner Brown reports having seen soap and paper towel dispensers in the bathroom in the medical unit, which are often empty. Petitioners report that facility staff have been unreceptive to requests for additional soap.
116. Detained people at Folkston have no access to hand sanitizer, which is not even available for purchase at the commissary.
c. Respondents Are Violating the CDC Guidance Related to Supplies, Including PPE
117. The CDC Guidance requires Respondents to “[e]nsure that sufficient stocks of hygiene supplies,” including PPE, “are on hand and available” and to have a plan in place to restock rapidly if needed. The CDC Guidance also specifies the circumstances under which staff and detained people are to wear PPE and mandates that those who are required to use PPE within the scope of their responsibilities be “trained to correctly don, doff, and dispose of” PPE.
118. Some detained people at Folkston state that they have recently begun to receive PPE, but generally in limited supply, and they have no way to sanitize it after use. Petitioner Benavides reports that she was denied both a face mask and gloves when she requested them. Even those who should use PPE in the scope of their work at Folkston do not consistently receive it. On information and belief, such individuals are also not properly trained on how to use PPE, and to the extent respirators are required, they are not properly fit tested.
119. Detained immigrants and visiting attorneys have observed ICE staff failing to regularly use PPE, even during close interactions, since the start of the COVID-19 outbreak. The ICE staff continue to move in and out of the facility and between units within the facility without consistent PPE.
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d. Respondents Are Violating the CDC Guidance Related to Cleaning 120. The CDC Guidance identifies “intensified cleaning and disinfecting procedures” to be used during the pandemic, including cleaning and disinfecting frequently touched surfaces with household cleaners and EPA-registered disinfectants effective against the virus, “as appropriate for the surface.” Respondents should also comply with manufacturer instructions on precautions to take while using these products, such as wearing gloves and ensuring good ventilation. 121. The CDC Guidance identifies a higher level of cleaning and disinfection of facilities and vehicles after a person has been identified as a suspected or confirmed COVID-19 case. Respondents must “[c]lose off areas used by the infected individual,” open doors and windows to increase air circulation if possible, and wait as long as practical (“up to 24 hours under the poorest air exchange conditions”) before cleaning begins. All areas where the suspected or confirmed case was located must be cleaned and disinfected according to specific procedures by individuals wearing appropriate PPE, including, at a minimum, gloves and a hospital gown or disposable coveralls. 122. At Folkston, detained people are responsible for cleaning their personal living spaces, as well as the common areas of housing units, but often are not provided with adequate cleaning supplies. Reports indicate that the facility often runs out of cleaning supplies and that the cleaning solutions provided are significantly diluted or not proper disinfectants. Petitioners Benavides and Brown state that the cleaning sprays they received were so diluted they had almost no chemical smell at all. Petitioner Arriaga stated that he was only provided with glass cleaner to clean his cell. Due to the inadequate provision of cleaning supplies, Petitioners Fernandez and Brown reported that they had no choice but to clean their cells with soap or shampoo provided for personal hygiene.
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123. Folkston also commonly fails to provide detained individuals with gloves or face masks to use while cleaning.106
124. Detained people at Folkston who have respiratory issues, like asthma, find that their health is negatively affected by some of the cleaning sprays provided. Petitioner James, who has asthma and COPD, for example, stated that “[o]n a daily basis [he has] issues breathing while at the detention center,” but those issues are only “aggravated by the fact that they . . . use certain cleaning sprays that affect my breathing.”
e. Respondents Are Violating the CDC Guidance by Ignoring Symptoms Among the Detained Population and Failing to Place Sick People in Medical Isolation
125. The CDC Guidance requires immediate action in response to symptoms of COVID19, even if the person has not yet been tested. “As soon as an individual develops symptoms . . . , they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.” While under medical isolation, a detained person should wear a face mask “at all times when outside of the medical isolation space and whenever another person enters that space,” and be provided with a clean mask “at least daily, and when visibly soiled or wet.”
126. The CDC Guidance directs facilities to provide “medical evaluation and treatment at the first signs of COVID-19 symptoms,” including an initial evaluation as to whether the “symptomatic individual is at higher risk for severe illness from COVID-19” due to an underlying condition. “If a facility is not able to provide such evaluation and treatment, a plan should be in place to safely transfer the individual to another facility or local hospital.”
106 Dkt. 29-1 ¶ 8.
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127. The CDC Guidance further states that “[f]acilities should make every possible effort to place suspected and confirmed COVID-19 cases under medical isolation individually. Each isolated individual should be assigned their own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options.”
128. If cohorting is necessary because there are “no other available options,” the CDC Guidance states that cohorted cases must “wear face masks at all times”; that “[o]nly individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort”; and that confirmed cases should not be cohorted with suspected cases or case contacts.
129. For staff interacting with people in medical isolation, the CDC Guidance requires use of PPE, including eye protection, gloves, a hospital gown or disposable coveralls, and an N95 respirator (or a face mask when the supple chain of N-95 masks cannot meet demand). Staff monitoring those in medical isolation should be designated to do so exclusively where possible, and “should limit their own movement between different parts of the facility to the extent possible.”
130. Instead of responding immediately to symptoms among the detained population at Folkston as required by the CDC Guidance, Respondents routinely do the opposite. They ignore reports of COVID-19 symptoms and requests for medical attention and allow people with COVID19 symptoms to continue sleeping and eating within a few feet of others.
131. For example, on March 19, 2020, a man detained at Folkston reported that he was afraid of contracting COVID-19 because he feared Folkston would not provide proper medical treatment. Another man at Folkston reported that there was at least one person in his housing unit who was experiencing coughing, fever, and shortness of breath but had not been moved to another
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location. Petitioner James observed that Folkston was not taking steps to evaluate detained people who had coughs.
f. Respondents Are Violating the CDC Guidance Related to Transfers and Screening of New Entrants to the Detained Population
132. CDC Guidance states that transfers of detained individuals between detention facilities should be “restricted” unless “absolutely necessary” (if COVID-19 is not already present in either facility) and transfers should be “suspended” unless “absolutely necessary” (if there has been a suspected or confirmed case of COVID-19 inside either facility). The Guidance further states that receiving facilities must have capacity to isolate symptomatic patients upon arrival.
133. The Guidance sets out required infection control measures for the transportation of detained people. These measures demand far more staffing and training than ICE has available for large scale transfers:
If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case – including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE . . . and that the transport vehicle is cleaned thoroughly after transport. 134. For new entrants into a facility, the CDC Guidance directs detention centers to conduct “pre-intake screening and temperature checks” and to place any new intakes with symptoms (fever, cough, or shortness of breath) in medical isolation “immediately.” 135. If COVID-19 is already present inside a facility, the CDC Guidance requires routine intake quarantining, which means “quarantining all new intakes for 14 days before they enter the facility’s general population (SEPARATELY from other individuals who are quarantined due to contact with a COVID-19 case).”
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136. As symptoms of COVID-19 can present anywhere from 2 to 14 days after exposure, individuals can expose other detained individuals, as well as detention center staff, if the CDC’s new intake quarantining protocols are not followed.
137. On information and belief, Respondents are not complying with the CDC Guidance regarding transfers, including by failing to sufficiently screen all transfers out of and into Folkston and failing to consistently impose adequate intake quarantining.107 On information and belief, Respondents also continue to engage in transfers that are not “absolutely necessary.”
138. Folkston received new intakes transferred from other facilities as late as the second half of April.108 Detained immigrants have observed new people being moved in and out of the facility as well, throughout the last month. As recently as May 4, 2020, Petitioner Benavides reported that she observed new people being brought into the building she is in just a few days prior.
139. On information and belief, Respondents have been placing new intakes with other detained individuals without first taking appropriate screening, isolation, or quarantining measures.
g. Respondents Are Violating CDC Guidance on Screening of Visitors 140. The CDC Guidance requires that visitors, like staff, have their temperatures taken and be screened before entering Folkston. Staff performing this screening should wear PPE
107 Dkt. 29-1 ¶ 7. 108 Monique O. Madan, ‘It’s like a Shell game’: Immigration lawyers move to close ICE loophole in federal ruling, Miami Herald (May 2, 2020), https://hrld.us/35wS7td (noting that ICE transferred people to Folkston from south Florida detention facilities, including one facility with confirmed cases of COVID-19 (Krome Detention Center) sometime after April 13, 2020).
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including a face mask, eye protection, gloves, and a hospital gown or disposable coveralls. Visitors who do not clear the screening process should not be permitted to enter Folkston.
141. Attorneys continue to visit their detained clients in Folkston because most immigration court hearings for detained individuals are still proceeding and many filing deadlines still apply. Contrary to testimony from Respondent Gartland,109 reports from immigration attorneys indicate that staff at Folkston are inconsistent in performing even the minimal screening that ICE purports to have implemented. They also do not comply with CDC Guidance on use of PPE during the visitor screening process.
142. Since the pandemic began, Respondents have permitted attorneys to enter Folkston without taking adequate precautions to limit exposure in the event that a visiting attorney is a COVID-19 carrier. Attorneys were permitted to enter Folkston for legal visits in late March 2020 without wearing any PPE. They merely had to submit to temperature checks and answer a brief set of questions about whether they had traveled recently or had contact with a confirmed case of COVID-19. As recently as April 10, 2020, an attorney entering Folkston reported that these screenings interviews were not always conducted in full or properly – on one occasion, for example, a guard filled out a questionnaire on her behalf without even asking her the screening questions.
143. On March 25, 2020, an attorney visiting Folkston observed 50-60 detained people in the same room, sitting inches away from each other, waiting for their court hearings to be conducted by video teleconferencing (VTC). She attended two hearings with clients that day in small VTC rooms that provide just enough space for two people to sit next to each other facing the VTC camera.
109 Dkt. 29-1 ¶ 6.
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h. Respondents Are Violating the CDC Guidance Related to Communication with Detained People
144. The CDC Guidance requires Respondents to post signage throughout Folkston advising detained people of the symptoms of COVID-19. Respondents should also provide instructions advising detained people on proper hand hygiene and cough etiquette; to avoid touching their faces without first washing their hands; to avoid sharing dishes and utensils; to avoid non-essential physical contact; and to report any symptoms to staff. Respondents must “[e]nsure that materials can be understood by non-English speakers and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.”
145. The CDC Guidance also directs Respondents to “[c]ommunicate clearly and frequently” with detained people about “how they can contribute to risk reduction.”
146. Once COVID-19 has entered a facility, the CDC Guidance directs that facilities should “[p]rovide clear information” to detained people “about the presence of COVID-19 cases within the facility.”
147. Several Petitioners and other detained immigrants at Folkston have indicated that ICE personnel have never informed them of the symptoms of COVID-19, provided information about confirmed cases at Folkston, or advised them on recommended hygiene or social distancing practices. Detained people at Folkston have reported that when they asked for explanations and information regarding COVID-19 or expressed their concern about the risk of exposure, guards and staff responded by threatening to take away their possessions and put them in solitary confinement. Petitioner Benavides stated that when she asked for information regarding COVID19, she was told simply that “they are following CDC Guidance.” The minimal information that has been provided is not sufficiently comprehensive to comply with the CDC Guidance.
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148. Notices or flyers about COVID-19 are sometimes provided only in English, and some Petitioners cannot understand them. Petitioner Fernandez also reported that while Folkston had previously posted signs about handwashing in his pod unit, many of them were taken down around April 27, 2020.
i. Respondents Are Violating the CDC Guidance Related to Testing 149. The CDC Guidance directs testing of symptomatic individuals based on the CDC’s general testing guidelines. The CDC’s testing guidelines direct that “[c]linicians should use their judgment to determine if a patient has signs and symptoms compatible with COVID-19 and whether the patient should be tested. Most patients with confirmed COVID-19 cases have developed fever and/or symptoms of acute respiratory illness (e.g., cough, difficulty breathing).”110 150. The CDC’s testing guidelines include as a priority rapid identification and appropriate triage of “those who are at highest risk of complication of infection,” including people with underlying conditions with symptoms.111 151. On information and belief, Respondents are not complying with CDC testing guidelines at Folkston. See supra n. 63-64 (Respondents Albence and ICE stating that the number of available tests is limited and the number of tests conducted among those in ICE custody is low).
j. Respondents Are Violating CDC Guidance Related to Care and Protection of Medically Vulnerable Individuals in Their Custody
152. The CDC Guidance includes additional precautions for persons, such as Petitioners, who are at higher risk of severe illness or death from COVID-19. For example, when
110 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), Evaluating and Testing Persons for Coronavirus Disease 2019 (COVID-19) (last updated Mar. 24, 2020) https://www.cdc.gov/coronavirus/2019-nCoV/hcp/clinical-criteria.html. 111 Id.
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recommending medical isolation of confirmed or suspected COVID-19 cases and quarantine of close contacts of COVID-19 cases, the CDC Guidance requires facilities to “be especially mindful of cases who are at higher risk.” Additionally, the CDC Guidance requires that symptomatic individuals should be immediately evaluated for medical vulnerability.
153. The CDC advises that the risk of severe illness from COVID-19 for people with underlying medical conditions is even higher when the underlying medical condition is “not well controlled.”112 It accordingly provides specific instructions on reducing the risks of COVID-19 for people with each underlying medical condition,113 including continuing prescribed medications and maintaining treatment plans provided by doctors.114 For people with asthma in particular, the CDC recommends continuing use of inhalers, avoiding asthma triggers, and avoiding close contact with cleaning and disinfecting products, particularly those that are sprayed directly onto a cleaning surface.115
154. Respondents fail to provide adequate and consistent medical care to detained people with medical conditions that give rise to a heightened risk of serious COVID-19 infection, including all Petitioners, in violation of the CDC Guidance.
112Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), People Who Are at Higher Risk for Severe Illness (last reviewed Apr. 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html. 113 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), Groups at Higher Risk for Severe Illness (last reviewed Apr. 17, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html. 114 Id. 115 Id.
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155. Respondents routinely provide medically vulnerable people with incorrect medications or care, and delay or ignore medical requests. Diabetic Petitioners are not receiving the special diets they need to manage their diabetes and are not consistently provided with medically necessary insulin. Petitioner Kumar, who suffers from tuberculosis, was not provided medication for more than six months after he was brought to Folkston. He passed tuberculosis to his cellmate before Folkston started providing medication. On April 14, 2020, he stopped receiving medication for tuberculosis, even though he is still actively symptomatic. Moreover, Respondents’ cleaning methods, supra ¶124, exacerbate breathing issues for Petitioners with asthma and other respiratory conditions. Petitioner Arriaga found the lack of medical care at Folkston for his lupus so egregious that he agreed to voluntary departure.
156. In addition, Respondents’ numerous violations of the CDC Guidance discussed above, supra ¶¶ 97-155, all increase the risk that COVID-19 will continue to spread within Folkston, magnifying the risk of infection to medically vulnerable people. Given the realities of detention at Folkston, no conditions of confinement can possibly protect Petitioners from the heightened risk of COVID-19 posed by their detention. As long as Petitioners remain detained, they are at greater risk of exposure than they would be if permitted to comply with state stay-athome orders and self-isolate outside of detention.
k. Respondents Must Follow Other CDC Guidance on COVID-19 157. On information and belief, Respondents are also not in compliance with other portions of the CDC Guidance. 158. As COVID-19 is now confirmed to be within the detained population at Folkston, Respondents must also comply with portions of the CDC Guidance relevant to addressing this situation – including but not limited to quarantining people who have been exposed to a known or suspected case of COVID-19 and screening people in units where COVID-19 has been identified.
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159. The CDC Guidance requires that “detained persons who are close contacts of a confirmed or suspected COVID-19 case (whether the case is another incarcerated/detained person, staff member, or visitor)” be placed under quarantine for 14 days. Facilities should “make every possible effort” to quarantine these people individually. Cohort quarantine for close contacts of a COVID-19 case “should only be practiced if there are no other available options” because it can cause COVID-19 to be transmitted to people who are not yet infected. If quarantined individuals are cohorted, the CDC Guidance requires them to wear face masks at all times to prevent transmission from infected to uninfected individuals.
160. The CDC Guidance also requires that facilities must “[i]mplement daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that … detained individuals are not notifying staff of symptoms.”
F. Petitioners Are Particularly Vulnerable to Serious Illness or Death if Infected by COVID-19 and Should Be Released from Detention
161. Petitioners in this case are individuals who are currently detained at Folkston and are particularly vulnerable to serious illness or death if infected by COVID-19.
162. Jenner Benavides. Ms. Benavides is currently detained at Folkston and has been in ICE custody since May 2019. She is living with HIV and bipolar disorder. She also suffers from depression, anxiety, and suicidal ideation exacerbated by her conditions of confinement. At Folkston, she is constantly bullied and harassed by other immigrants detained there. She was recently sexually assaulted more than once by men in her pod unit. When she reported the assault, she was put on suicide watch, and then moved to protective custody, which further worsens her anxiety and depression. She has also experienced delays and inconsistencies in medical services at Folkston, and she has not been provided with face masks or gloves despite multiple requests for them.
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163. Ms. Benavides is critically vulnerable to COVID-19 because of her autoimmune disease and other health problems. Upon her release, she plans to self-quarantine with her U.S. citizen friend in Nashville, where her two youngest siblings also eagerly await her return.
164. David Fernandez. Mr. Fernandez has been detained at Folkston since December 2019. He has diabetes and has suffered from tuberculosis in the past. A doctor has told him that if he does not manage his blood sugar levels, he is at risk of suffering a heart attack. Prior to his detention by ICE, he had his sugar levels under control, and he felt well. However, maintenance of his diabetes requires fourteen injections of insulin per week, and he has not consistently received all of these necessary injections. Some weeks he receives as few as three. His health has deteriorated, and he sometimes cannot stand up from fatigue. Mr. Fernandez is now forced to remain in a facility where he cannot practice social distancing, he is not provided sufficient soap, testing for COVID-19 is unavailable, and staff are not taking precautions to protect him from infection.
165. Mr. Fernandez is critically vulnerable to COVID-19 because of his significant health problems. Upon his release, he plans to self-quarantine in South Carolina, where friends eagerly wait to welcome him home.
166. Gerardo Arriaga. Mr. Arriaga is currently detained at Folkston, and has been in ICE custody since March 2020. He has lupus, an autoimmune disease that causes him to be immunocompromised and causes inflammation and damage to his joints, skin, kidneys, blood, heart, and lungs. Because of his condition, he is predisposed to infections, and needs medications and topical creams to manage the symptoms. While he has been at Folkston, he has not received these necessary medications. He has also requested medical attention that has been ignored, and staff are not taking precautions to protect him from COVID-19. The medical care has been so
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inadequate that, on May 5, 2020, he agreed to voluntary departure to Peru to get medical care there instead of remaining at Folkston.
167. Mr. Arriaga is critically vulnerable to COVID-19 because of his significant health problems. Upon his release, he plans to self-quarantine with his wife in Atlanta, Georgia before they both return to Peru.
168. Ajit Kumar. Mr. Kumar has been detained at Folkston since January 2019. He is currently suffering from tuberculosis, which causes him to cough and experience general fatigue. He also has severe headaches, depression, and anxiety. When Mr. Kumar was first transferred to Folkston, he informed staff that he had tuberculosis, but was not tested for it for over six months. This delay not only caused Mr. Kumar to suffer without medication, but also caused his cellmate to contract tuberculosis. Folkston then began providing Mr. Kumar with medication for his tuberculosis and his headaches, but recently stopped. The only medication he receives now is an antidepressant. Mr. Kumar continues to be detained in a crowded open dormitory at Folkston.
169. Mr. Kumar is critically vulnerable to COVID-19 because of his significant health problems. Upon his release, he plans to self-quarantine at his home with his brother-in-law in Baltimore, Maryland.
170. Scott James. Mr. James is currently detained at Folkston, and has been in ICE custody since October 2018. He suffers from severe asthma and chronic obstructive pulmonary disease (COPD), and needs to have an inhaler at all times. The conditions under which Mr. James is detained aggravate his respiratory conditions. He also has hypertension and a history of prediabetes. Many of his health issues are related to being shot in 2002 and a resultant surgery.
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171. Mr. James is critically vulnerable to COVID-19 because of his age and significant health problems. Upon his release, he plans to self-quarantine with his wife and four children in Atlanta, Georgia.
172. Winston Brown. Mr. Brown is currently detained at Folkston and has been in ICE custody since March 2019. About a year ago, he was diagnosed with diabetes and high blood pressure. He also has problems with his prostate. For the last few weeks, he has been experiencing shortness of breath and chest pain as well. He has been taking medications for all of these conditions. At Folkston, he does not receive the proper diet he needs to manage his diabetes effectively. The stress of detention and the risk of COVID-19 also causes his blood pressure to fluctuate dangerously.
173. Mr. Brown is critically vulnerable to COVID-19 because of his age and significant health problems. Upon his release, he plans to return to his home and self-quarantine with his family in Boynton Beach, Florida.
G. ICE’s Alternatives to Detention Program 174. ICE has a longstanding practice of exercising its authority to release from custody particularly vulnerable immigrants with significant medical or humanitarian needs, including on bond, parole, or under other alternatives to detention (“ATD”) such as GPS monitoring and telephone check-ins. See, e.g., 8 U.S.C. §§ 1182(d)(5)(a), 1226(a); 8 C.F.R. § 212.5(a)-(d); 8 C.F.R. § 235.3(b)(2)(iii), (b)(4)(ii); 8 C.F.R. § 241.4. The INA also provides for what is commonly known as “mandatory” detention for people with a history of certain criminal convictions under 8 U.S.C. § 1226(c), but despite the nominally "mandatory" nature of this detention, ICE has always, in fact, exercised discretion over individuals in this category, even if rarely exercising that discretion to release individuals.
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175. For over 15 years, DHS/ICE has sought and obtained congressional funding for its
ATD program, which uses supervised release, case management, and monitoring of individuals instead of detention.116 ICE has repeatedly told Congress that the ATD program increases ICE’s
operational effectiveness and individual compliance with release conditions.
176. The DHS FY2021 Congressional Budget Justification for ICE states that it costs
$125.06 per day to jail an adult immigrant in ICE custody. The average cost per ATD participant
is $4.43 per day. The DHS FY2021 funding request seeks to support 120,000 daily participants in the ATD program.117
177. A 2014 GAO Report found that 95% of those on full-service ATD (i.e. those that include case management) appear for their final hearings.118 According to 2017 contract data,
116 ICE’s current ATD program is called Intensive Supervision Appearance Program III (ISAP III). The program features different levels of case management including in-person or telephonic meetings, unannounced home visits, scheduled office visits, and court and meeting alerts. Some participants are also enrolled in technology-based monitoring including telephonic monitoring, GPS monitoring via ankle bracelet, and smart phone application monitoring called SmartLink that uses facial recognition and location monitoring via GPS. The private contractor that operates the program for ICE is BI, Inc., a wholly-owned subsidiary of The GEO Group, Inc. See CRS Report R45804, Immigration: Alternatives to Detention (ATD) Programs, (Jul. 8, 2019). On March 23, 2020, DHS awarded BI, Inc. a 5-year $2.2 billion contract for continued ISAP support. https://beta.sam.gov/opp/2479131ff88f405999e126b52ff105f5/view. 117 DHS/ICE FY2021 Congressional Budget Justification, at Operations & Support 132, 171, 173, https://www.dhs.gov/sites/default/files/publications/u.s._immigration_and_customs_enforcement .pdf. Due to court backlogs and delays for those who are non-detained, ATD participants are enrolled for a longer periods of time than they would have been detained. However, even considering the average length of stay in detention and the average length of time in ATD, taxpayers are paying an average of $4,000 more per individual detained than for each of those released on ATD. 118 GAO-15-26, Alternatives to Detention, at 30 (Nov. 2014), available at https://www.gao.gov/assets/670/666911.pdf.
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supervision coupled with some case management results in a more than 99% appearance rate for all immigration court hearings, and a more than 91% appearance rate for final hearings.119
178. As of April 25, 2020, ICE has 89,490 individuals enrolled in ATD, including 3,078 in the Atlanta area.120 VI. LEGAL FRAMEWORK
179. By continuing to detain Petitioners at Folkston at this time, Respondents are in violation of two different substantive standards flowing from the Fifth Amendment Due Process Clause: (1) the right to be free from punishment; and (2) the right to reasonable safety. The Court has the power to remedy constitutional violations by ordering Petitioners’ release or other available remedial actions short of release, either by issuing a writ of habeas corpus under 28 U.S.C. § 2241 and Art. I, § 9, cl. 2 of the U.S. Constitution, or alternatively, through the court’s longstanding equitable power to enjoin unconstitutional conduct in suits brought under 28 U.S.C. § 1331 seeking injunctive or declaratory relief against federal actors acting in their official capacity.
A. Petitioners Have a Constitutional Right to Be Free from Punishment 180. All noncitizens in ICE custody, even those with prior criminal convictions, are detained pursuant to civil immigration laws. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Their constitutional protections while in civil custody are thus derived from the Fifth Amendment Due Process Clause. Id. 181. The Fifth Amendment Due Process Clause, which mirrors the Fourteenth Amendment, prohibits punishment of people in civil custody. Bell v. Wolfish, 441 U.S. 520, 535
119 The Real Alternatives to Detention (June 2019), available at https://www.womensrefugeecommission.org/research-resources/alternatives-to-detention/. 120 ICE, Detention Management, https://www.ice.gov/detention-management#tab2 (last visited May 6, 2020).
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n.16 (1979); Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004); Hamm v. Dekalb County, 774 F.2d 1567, 1572 (11th Cir. 1985) (citing Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977)). (1989).
182. Civilly detained people “are generally ‘entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Marsh v. Fla. Dep’t of Corrections, 330 F. App’x’ 179 (11th Cir. 2009) (quoting Youngberg v. Romeo, 457 U.S. 307, 322 (1982)); accord Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209 n.5 (4th Cir. 2017).
183. The government must provide detained individuals with basic necessities, such as adequate medical care, food, clothing, and shelter; the failure to provide these necessities violates due process. Hamm, 774 F.2d at 1573; Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., 402 F.3d 1092, 1115 (11th Cir. 2005).
184. To establish that a particular condition or restriction of detention constitutes impermissible punishment, a petitioner must show either (1) an expressed intent to punish; or (2) lack of a reasonable relationship to a legitimate governmental purpose, from which an intent to punish may be inferred. See Wolfish, 441 U.S. at 538. Absent an explicit intention to punish, a court must apply a two-part test: “First, a court must ask whether any ‘legitimate goal’ was served by the prison conditions. Second, it must ask whether the conditions are ‘reasonably related’ to that goal.” Jacoby v. Baldwin County, 835 F.3d 1338, 1345 (11th Cir. 2016). “[I]f conditions are so extreme that less harsh alternatives are easily available, those conditions constitute ‘punishment.’” Telfair v. Gilberg, 868 F. Supp. 1396, 1412 (S.D. Ga. 1994) (citing Wolfish, 441 U.S. at 538-39 n.20).
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185. There is no legitimate interest in civil immigration detention of an individual for the purpose of deterring migration of others. See Bell, 441 U.S. at 539 n.20 (“Retribution and deterrence are not legitimate nonpunitive governmental objectives.”); see also R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 188-90 (D.D.C. 2015) (observing that deterring future mass migration is a “novel” justification for detention that is “out of line” with those endorsed by the Supreme Court, and ultimately holding that it is not a legitimate purpose for immigration detention).
B. Petitioners Have a Constitutional Right to Reasonable Safety in Custody 186. “[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199-200 (1989). 187. At a minimum, the Fifth Amendment Due Process Clause prohibits Respondents’ deliberate indifference to a substantial risk of serious harm that would rise to the level of an Eighth Amendment violation in the post-conviction criminal context. Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, (1983) (“[T]he due process rights of a [detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner.”); see also Hale v. Tallapoosa County, 50 F. 3d 1579, 1582 n.4 (11th Cir. 1995). 188. In order to show that Respondents are acting with deliberate indifference, Petitioners must show exposure to a substantial risk of serious harm of which Respondents are aware and have disregarded. Farmer v. Brennan, 511 U.S. 825, 834, 837-38 (1994); Marbury v. Warden, 936 F.3d 1227, 1233 (11th Cir. 2019); Hale v. Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995).
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189. The government may violate the Eighth Amendment, and by extension the Fifth Amendment, when it “ignore[s] a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33; see also id. at 34 (citing with approval Gates v. Collier, 501 F.2d 1291, 1300 (5th Cir. 1974), which held that prisoners were entitled to relief under the Eighth Amendment when they showed, inter alia, the mingling of “inmates with serious contagious diseases” with other prison inmates).
190. Thus, the harm that Petitioners fear—i.e., that their confinement will result in a COVID-19 infection that will seriously injure and possibly kill them—need not become a reality to establish a violation of their constitutional rights. Courts do not require a plaintiff to “await a tragic event” before seeking relief from a condition of confinement that unconstitutionally endangers them. See Helling, 509 U.S. at 33 (holding prisoner’s Eight Amendment claim could be based upon possible future harm to health, as well as present harm).
191. “Nor does it matter that some inmates may not be affected by the condition, and that the harm is thus, in a sense, only potential harm. The Court has found an Eighth Amendment violation ‘even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed.’” Tittle v. Jefferson Cty. Comm’n, 10 F.3d 1535, 1543 (11th Cir. 1994) (quoting Helling, 509 U.S. at 33).
192. The government may violate a detained person’s due process rights even where it is exercising its “best efforts,” Thakker v. Doll, 20 Civ. 480, 2020 WL 1671563, at *1, *10 (M.D. Pa. Mar. 31, 2020), partially rev’d on other grounds, Thakker v. Doll, --- F. Supp. 3d ---, 2020 WL 2025384, at *6 (M.D. Pa. Apr. 27, 2020), if “the protective measures in place . . . are not working,”
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Hope v. Doll, No. 20 Civ. 562, ECF. No. 11 at 13–14 (M.D. Pa. Apr. 7, 2020) (ordering release of medically vulnerable detainees, noting the increase in positive cases of COVID-19 in the detention centers at issue).
C. The Court May Grant Petitioners’ Release Through a Writ of Habeas Corpus
193. Petitioners may challenge their detention as unconstitutional under the federal habeas statute, 28 U.S.C. § 2241. Section 2241(c)(3) extends the writ of habeas corpus to any person who is “in custody in violation of the Constitution or laws or treaties of the United States.”
194. “It is clear, not only from the language of [the federal habeas statute], but also from the common-law history of the writ, that . . . the traditional function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (The writ is an “integral part of [the United States’] common-law heritage,” which “was given explicit recognition in the Suspension Clause of the Constitution, Art. I, § 9, cl. 2.”). See also Munaf v. Geren, 553 U.S. 674, 693 (2008) (“Habeas is at its core a remedy for unlawful executive detention.”). “[O]ver the years, the writ of habeas corpus [has] evolved as a remedy available to effect discharge from any confinement contrary to the Constitution or fundamental law . . . .” Preiser, 411 U.S. at 485 (emphasis added).
195. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.” Harris v. Nelson, 394 U.S. 286, 291 (1969); see also Jones v. Cunningham, 371 U.S. 236, 243 (1963) (“[Habeas] is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose.”).
196. Accordingly, habeas is undoubtedly an appropriate vehicle to obtain release from unlawful confinement when the illegality stems from the fact or duration of detention—what is
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often referred to as the historical core of habeas. Cases seeking “immediate release from detention because there are no conditions of confinement that are sufficient to prevent irreparable constitutional injury” fall “squarely in the realm of habeas corpus.” See Vazquez Barrera, Case No. 4:20-cv-01241, ECF No. 41 at 7-9.
197. Some circuit courts have drawn a distinction between prisoners’ claims that challenge the fact or duration of confinement and those that merely seek a change in conditions of their confinement, stating that the former sound in habeas corpus while the latter should be brought as a civil rights action under 42 U.S.C. § 1983 or an equivalent federal constitutional cause of action.
198. In circuits that draw this distinction, courts generally conclude that remediation of the condition is sufficient to remedy the injury. See, e.g., Report and Recommendations on Emergency Motion for Injunctive Relief, Gayle v. Meade, 2020 WL 1949737 (S.D. Fla. Apr. 22, 2020) at *26 (explaining that the Eleventh Circuit’s rule on this point, is “based on the implicit assumption that a ‘correction’ or [‘]discontinuance’ of the unconstitutional practice is actually available”); Vazquez Barrera, Case No. 4:20-cv-01241, ECF No. 41 at 8 (“[I]n most cases, unconstitutional conditions of confinement can be remedied through injunctions that require abusive practices be changed”). Alternatively, such courts sometimes determine that habeas is not the proper vehicle because the petitioner seeks a remedy other than release. See Spencer v. Haynes, 774 F.3d 467,a 469-70 (8th Cir. 2014) (claim that four-point physical restraints constituted cruel and unusual punishment did not sound in habeas where the prisoner did not “seek a remedy that would result in an earlier release from prison”); cf. Vazquez Barrera, Case No. 4:20-cv-01241, ECF No. 41 at 7 (noting that “even in its own cases limiting habeas petitions in conditions-of-
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confinement challenges, the Fifth Circuit states that habeas is appropriate if a ruling in the petitioner’s favor would ‘automatically entitle [the petitioner] to accelerated release.”).
199. Regarding the COVID-19 pandemic and the risk it presents to medically vulnerable individuals in detention, courts have acknowledged that the line between claims challenging conditions of confinement and claims challenging the fact or duration of confinement is blurry. See Money, 2020 WL 1820660, at *9 (both habeas and § 1983 claims by state prisoners could proceed because “the unprecedented circumstances” of the COVID-19 pandemic “collapse the utility and purpose of drawing distinctions between” conditions claims and fact-or-duration claims); Malam v. Adducci, No. 2:20-cv-10829-JEL-APP (E.D. Mich. Apr. 5, 2020), ECF No. 22 (construing claim as challenge to the fact of detention even though it arose out of the unconstitutionality of the conditions of confinement because there were “no conditions of confinement sufficient to prevent irreparable constitutional injury”); Vazquez Barrera, Case No. 4:20-cv-01241, ECF No. 41 at 8 (“The mere fact that Plaintiffs’ constitutional challenge requires discussion of conditions in immigration detention does not necessarily bar such a challenge in a habeas petition.”).
200. When release is the only remedy that will end unlawful punishment or ameliorate a condition that violates the Fifth Amendment Due Process Clause, there must be a vehicle available for a person in federal immigration detention to seek release from a court. If no other cause of action allows release, habeas corpus must be available pursuant to the Suspension Clause. Art. I, § XI clause 2.
201. Federal courts retain “broad discretion in conditioning a judgment granting habeas relief . . . ‘as law and justice require.’” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (quoting 28 U.S.C. § 2243). The Court is fully empowered to remediate the particular illegality here—exposure
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to a highly contagious and potentially lethal virus that is substantially likely to harm Petitioners in the congregate environment where they are detained and that violates their constitutional rights to be free from arbitrary and punitive detention—by ordering their release.
D. The Court May Grant Petitioners’ Release and Other Equitable Relief Under 28 U.S.C. § 1331 and the Fifth Amendment
202. Because of the operation of the Suspension Clause, if this Court determines that it does not have jurisdiction to consider release under habeas, it must be because it finds jurisdiction to do so under its broad implied injunctive authority. Petitioners may seek equitable relief for violation of their Fifth Amendment due process rights through an implied cause of action against Respondents in their official capacities.121 Federal courts have long recognized an implicit private right of action under the Constitution “as a general matter” for injunctive relief barring unlawful government action. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 491 n.2 (2010); accord Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (equitable relief “has long been recognized as the proper means for preventing entities from acting unconstitutionally”); Bolling v. Sharpe, 347 U.S. 497, 500 (1954) (holding that the Fifth Amendment and 28 U.S.C. § 1331 created a remedy for unconstitutional racial discrimination in public schools); Bell v. Hood, 327 U.S. 678, 684 (1946) (“[I]t is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution”). Indeed, “federal courts have broad equitable powers to remedy proven constitutional violations.” See
121 The implied constitutional cause of action available to Petitioners is distinct from a suit brought under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). A Bivens suit seeks damages from a federal official in his individual capacity as a tortfeasor. Here, Petitioners instead seek to enjoin unconstitutional official conduct based on the federal courts’ equity jurisdiction and the general grant of subject-matter jurisdiction in 28 U.S.C. § 1331. See Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1230-33 (10th Cir. 2005).
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Gibson v. Firestone, 741 F.2d 1268, 1273 (11th Cir. 1984); see also Swann v. CharlotteMecklenburg Bd. of Ed., 402 U.S. 1, 15-16 (1971) (similar).
203. Federal courts’ broad equitable powers include fashioning equitable remedies to address constitutional violations in custodial settings. See Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978); Stone v. City & County of San Francisco, 968 F.2d 850, 861 (9th Cir. 1992) (“Federal courts possess whatever powers are necessary to remedy constitutional violations because they are charged with protecting these rights.”).“When necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011); Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (concluding that court did not exceed its authority in directing release of low-bond pretrial detainees as necessary to reach a population cap).
204. Thus, there is both jurisdiction under 28 U.S.C. § 1331 and a cause of action under the Fifth Amendment to enjoin Petitioners’ unconstitutional confinement, either through release or remediation of the injurious conditions. See Malam, 2020 WL 1672662, at *4 (explaining that apart from habeas, “the Fifth Amendment provides [the] [p]etitioner with an implied cause of action, and accordingly 28 U.S.C. 1331 would vest the Court with jurisdiction”); cf. Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231-32 (10th Cir. 2005) (implied cause of action under Eighth Amendment to enjoin unconstitutional prison conditions).
205. The Eleventh Circuit has never opined on whether a person in civil immigration detention is entitled to release under the Fifth Amendment when all steps short of release would fail to ameliorate a substantial risk of harm—as is the case here. In Gomez v. United States, the Eleventh Circuit held that the proper remedy for a prisoner who proves cruel and unusual punishment is discontinuance of the improper practice or correction of the unconstitutional
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condition. 899 F.2d 1124, 1126 (11th Cir. 1990). But “the Gomez rule is based on the implicit assumption that a ‘correction’ or [‘]discontinuance’ of the unconstitutional practice is actually available. If no correction is feasible, then the remedy which the Eleventh Circuit relied upon would become illusory.” Gayle, 2020 WL 1949737 at *25-26 (S.D. Fla. Apr. 22, 2020); see also id. at 25 similarly distinguishing Vaz v. Skinner, which is based on the Gomez rule); Gomez, 899 F.2d at 1126 (asking whether adequate treatment within the prison system was possible, such that the unconstitutional condition could be corrected absent release, and concluding that such treatment was possible).
206. Releasing Petitioners, who are medically vulnerable to severe illness or death if they contract COVID-19, is the only remedy to cure the unconstitutionally high risk of injury that they suffer in detention. Petitioners’ only defenses against COVID-19 are stringent social distancing and hygiene measures—both of which are simply impossible in the environment of an ICE detention facility. Petitioners face unreasonable harm from continued detention and should be released immediately.
207. Alternatively, the Court has broad authority under section 1331 to order remediation of conditions. The federal government’s own source on appropriate standards for jails, prisons, and detention centers—the CDC Guidance—surely represents the minimum standard of care owed to Respondents under the Due Process Clause. This Court, then, has authority to order specific compliance with the terms of the CDC Guidance, or to order greater protections where necessary to address the constitutional harms Petitioners are suffering.
E. ICE’s Failure to Comply with CDC Guidance Violates the Accardi Doctrine 208. When the government has promulgated “[r]egulations with the force and effect of law,” those regulations “supplement the bare bones” of federal statutes. United States ex rel.
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Accardi v. Shaughnessy, 347 U.S. 260, 265 (1954) (petitioner granted new hearing after review of denial of relief revealed prejudgment, contrary to existing regulations). Agencies must follow their own “existing valid regulations,” even where government officers have broad discretion, such as in the area of immigration. Id. at 268; see also Gonzalez v. Reno, 212 F.3d 1338, 1349 (11th Cir. 2000) (“Agencies must respect their own procedural rules and regulations.”); Morton v. Ruiz, 415 U.S. 199, 235 (1974) (“[I]t is incumbent upon agencies to follow their own procedures . . . even where [they] are possibly more rigorous than otherwise would be required.”).
209. A violation of the Accardi doctrine may constitute a violation of the Fifth Amendments Due Process Clause. United States v. Teers, 591 F. App’x 824, 840 (11th Cir. 2014) (recognizing that an Accardi violation may be a due process violation); Jean v. Nelson, 727 F.2d 957, 976 (11th Cir. 1984) (“[A]gency deviation from its own regulations and procedures may justify judicial relief in a case otherwise properly before the court.” (citation omitted)).
210. While violations of “internal agency procedures” do not always require a remedy, Accardi’s rule applies with full force when “the rights or interests of the objecting party” are “affected.” Montilla v. INS, 926 F.2d 162, 167 (2d Cir. 1991) (citing cases) (“The Accardi doctrine is premised on fundamental notions of fair play underlying the concept of due process”). The Due Process Clause is implicated here because Petitioners are relying on CDC Guidance promulgated for their benefit during the COVID-19 pandemic.
211. Respondents operate Folkston pursuant to its 2011 Performance-Based National Detention Standards, as amended in 2016 (“PBNDS”),122 which specify certain measures that must be taken to protect the health of detained people.
122 2011 PBNDS, supra n. 99.
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212. Section 4.3(II)(10) of the PBNDS requires that “Centers for Disease Control and Prevention (CDC) guidelines for the prevention and control of infectious and communicable diseases shall be followed.” PBNDS at 258.
213. Section 4.3(V)(C)(1) of the PBNDS also provides that “[f]acilities shall comply with current and future plans implemented by federal, state or local authorities addressing specific public health issues including communicable disease reporting requirements.” PBNDS at 261-262.
214. Respondents are required to comply with the PBNDS, which in turn requires compliance with the CDC Guidance, pursuant to their own regulations and policy statements. Yet, as discussed supra, Section V.E.ii, their efforts to do so have been woefully inadequate.
215. A court in this Circuit recently found the Accardi doctrine applicable to this very set of circumstances. See Gayle v. Meade, No. 20-21553-CIV, 2020 WL 2086482, at *6 (S.D. Fla. Apr. 30, 2020) (Order Adopting in Part Magistrate Judge’s Report and Recommendation) (“It is abundantly clear that ICE is required to comply with CDC’s guidelines pursuant to its own regulations and policy statements. Yet, ICE has flouted its own guidelines by, inter alia, failing to ensure that each detainee practices social distancing. . . . ICE’s purported “substantial compliance” does not pass muster under the Accardi doctrine.”). The same is true here. VII. CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF Violation of Fifth Amendment Right to Substantive Due Process
Detention Constituting Unlawful Punishment 216. Petitioners reallege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 217. The Due Process Clause of the Fifth Amendment guarantees individuals in immigration detention the right to be free from punishment. The government violates this
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guarantee when conditions of confinement lack a reasonable relationship to any legitimate governmental purpose, i.e. when a custodian’s actions are excessive in relation to their purpose.
218. Petitioners have chronic medical conditions that put them at high risk for serious injury or death if they contract COVID-19, which is significantly likely if they remain in detention.
219. Respondents’ continued detention of Petitioners at Folkston during the COVID-19 pandemic, especially without consistent adherence to CDC Guidance, is excessive in relation to any legitimate governmental purpose. Less harsh measures are available to satisfy any government interest in continuing to detain Petitioners, including release with conditions.
220. Respondents’ continued detention at Folkston, especially without consistent adherence to CDC Guidance, subjects them to conditions tantamount to punishment.
221. The government does not have a legitimate interest in continuing civil detention of Petitioners. Deterrence of migration to the United States—which Respondents state as a justification for refusing to release individuals in response to the COVID-19 pandemic—is not a proper justification for Petitioners’ continued detention. Under these circumstances, Respondents’ detention of Petitioners amounts to impermissible punishment.
222. Petitioners’ ongoing confinement lacks a reasonable relationship to any legitimate governmental purpose or is excessive in relation to any such purpose.
223. Respondents’ continued detention of Petitioners violates the Due Process Clause of the Fifth Amendment.
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SECOND CLAIM FOR RELIEF Violation of Fifth Amendment Right to Substantive Due Process Detention Amounting to Deliberate Indifference to a Substantial Risk of Harm 224. Petitioners reallege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 225. Conditions of confinement for individuals in immigration detention also violate the Fifth Amendment when the government fails, with deliberate indifference, to safeguard the health and safety of those in custody. The government acts with deliberate indifference when it knowingly exposes an individual in its custody to a substantial risk of serious harm. 226. Respondents have subjected Petitioners to conditions of confinement that fail to comply with the CDC Guidance, and create a substantial risk that Petitioners will contract a serious case of COVID-19, for which there is no known treatment or cure. Respondents know or should be aware that Petitioners have underlying medical conditions that render them especially vulnerable to severe illness or even death if they contract COVID-19. Respondents are therefore knowingly subjecting Petitioners to an unreasonable risk of serious harm in violation of constitutional due process. 227. Respondents have knowingly exposed Petitioners to a substantial risk of serious harm. 228. Respondents have acted with deliberate indifference to Petitioners’ health and safety.
THIRD CLAIM FOR RELIEF Accardi Doctrine (Fifth Amendment) Violation of Detention Standards 229. Petitioners reallege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
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230. Under the Accardi doctrine, due process and the basic principles of administrative law dictate that rules promulgated by a federal agency regulating the rights and interests of others are controlling upon the agency. That doctrine is premised on the fundamental notion of fair play underlying the concept of due process.
231. The Accardi doctrine applies with particular force when “the rights of individuals are affected.” Morton, 415 U.S. at 235.
232. Folkston is subject to ICE’s PBNDS, which set forth certain measures that must be taken to protect the health of detained people.123 The PBNDS require ICE to follow CDC guidelines for the prevention and control of infectious disease, as well as plans implemented by federal, state, or local authorities to address public health crises.
233. Respondents have an obligation under the PBNDS to protect the Petitioners by following the CDC Guidance. However, Respondents have failed to comply with the PBNDS or the CDC Guidance in their management of the COVID-19 pandemic at Folkston.
234. In particular, Respondents have failed to follow the CDC Guidance related to social distancing, hygiene, supplies (including PPE), cleaning, medical evaluation and treatment of COVID-19 symptoms, medical isolation of suspected and confirmed COVID-19 cases, transfers and screening of new entrants to the detained population, visitor screening, communication with detained people, testing, and care and protection of medically vulnerable individuals detained at Folkston. Respondents have thereby failed to mitigate the risk of COVID-19 at Folkston.
123 2011 PBNDS, supra n. 99.
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235. Respndents have violated the Accardi doctrine and the Fifth Amendment Due Process Clause by failing to comply with their obligations under the PBNDS and failing to protect Petitioners. VIII. PRAYER FOR RELIEF WHEREFORE Petitioners request that the Court grant the following relief:
a. Issue a Writ of Habeas Corpus ordering Petitioners’ immediate release, with appropriate precautionary public health measures, on the ground that Respondents’ continued detention of Petitioners violates Petitioners’ constitutional due process rights;
b. In the alternative, issue injunctive relief ordering Respondents to immediately release Petitioners, with appropriate precautionary public health measures, on the ground that continued detention violates Petitioners’ constitutional due process rights;
c. In the alternative, issue injunctive relief ordering: a. Respondents to immediately comply with CDC Guidance regarding COVID-19 at Folkston, including the provisions requiring: i. Implementation and enforcement of social distancing (maintaining at least 6 feet of distance) among all people at Folkston at all times, with exceptions for emergency situations that require closer contact; ii. No-cost universal access for detained populations at all times to: (1) soap and 60% alcohol hand sanitizer sufficient to allow frequent handwashing, (2) running water and either hand drying machines or disposable paper towels, and (3) no-touch trash receptacles for disposal; iii. Maintaining sufficient stocks of PPE (N-95 respirators, face masks, eye protection, disposable gloves, disposable medical isolation gowns) at Folkston at all times and plans for rapid restocking when needed;
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iv. Provision of appropriate PPE to all staff and detained people required to use them, training on use of the PPE, and enforcement of the use of the PPE;
v. Intensified cleaning and disinfecting practices, including: (1) cleaning, several times per day, of all frequently touched surfaces with household cleaners and EPA-registered disinfectants that are effective against COVID19 and appropriate for the surface, (2) taking relevant precautions needed when using these products, particularly around detained people with underlying respiratory conditions, and (3) adapting cleaning and disinfecting practices when suspected or confirmed COVID-19 cases have been identified;
vi. Implementation of daily temperature checks in housing units where suspected, presumed, or positive COVID-19 cases have been identified, extending for fourteen days after the infected individual has been removed from the housing unit;
vii. Immediate response to symptoms of COVID-19, including: (1) placement of the symptomatic individual under medical isolation, with their own housing space and bathroom, and regular provision of a clean face mask to the individual, and (2) determination of whether the symptomatic individual is at higher risk for severe illness from COVID-19 due to an underlying condition, and provision of further evaluation and treatment as appropriate;
viii. Quarantine of all close contacts—defined as someone who has come within six feet of the infected individual in the last fourteen days—of a person with confirmed or suspected COVID-19 for 14 days, individually whenever
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possible, and provision of PPE as required by the Guidance; ix. Halting of transfers of detained people to and from Folkston unless
“absolutely necessary,” and adhering to infection control measures for the transportation of detained people if any transfers are “absolutely necessary”; x. Implementation of routine quarantining of new intakes for fourteen days at both Folkston; xi. Consistent and accurate screening of all visitors to Folkston, and not permitting those who do not clear the screening process to enter; xii. Clear and regular verbal and written communication about COVID-19 and risk reduction to the detained population, including: (1) posting signs throughout the Folkston that advise detained people of the symptoms of COVID-19, hand hygiene and cough etiquette, and other methods of protection against COVID-19, and that can be understood by non-English speakers and those with low literacy or needing other accommodations, and (2) clear and frequent in-person communication with detained people about risk reduction and the presence of COVID-19 cases inside Folkston; and xiii. Testing of all symptomatic individuals, including rapid identification and appropriate triage of those at highest risk of complication of infection; b. Respondents to provide adequate and consistent medical care to Petitioners for the medical conditions that put Petitioners at high risk of serious COVID-19 infection, as set out in CDC Guidance; c. Respondents to refrain from transferring Petitioners to other detention centers under
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ICE custody; if such transfer is absolutely necessary, this Court to retain jurisdiction over their claims at those detention centers; d. Respondents to absolutely cease all transfers into Folkston until this Court is satisfied that Folkston is fully compliant with CDC Guidance as outlined above; e. Respondents to immediately conduct custody redeterminations for all Petitioners, with specific consideration of the medical conditions that make Petitioners especially vulnerable to severe illness, long-term organ damage, or death from COVID-19; f. Respondents to provide weekly reports to this Court and Petitioners’ Counsel detailing progress toward compliance with the Court’s order, with evidence of compliance with each of the specified provisions in (c)(a)(i)-(xiii); d. Appoint a Special Master to assist the Court and the Parties in ensuring compliance with the relief ordered by the Court; e. Issue a declaration that Respondents’ continued detention of individuals at increased risk for severe illness, including all people fifty-five and older and persons of any age with underlying medical conditions that may increase the risk of serious harm due to COVID-19, violates the Due Process Clause; f. Issue a declaration that Respondents’ continued detention of individuals when not in compliance with CDC Guidance regarding COVID-19 violates the Due Process Clause; g. Award Petitioners their costs and reasonable attorneys’ fees in this action under the Equal Access to Justice Act (“EAJA”), as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, and on any other basis justified under law; and h. Grant any other and further relief that this Court may deem fit and proper.
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Dated: May 7, 2020 SOUTHERN POVERTY LAW CENTER

Respectfully submitted, KILPATRICK TOWNSEND & STOCKTON LLP

Gracie Willis* (GA Bar #851021) Rebecca Cassler* (GA Bar #487886) Lorilei Williams* (NY Bar #5302617) 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 Fax: (404) 221-5857 gracie.willis@splcenter.org rebecca.cassler@splcenter.org
Paul R. Chavez* (FL Bar #1021395) Victoria Mesa-Estrada* (FL Bar #076569) 2 S. Biscayne Blvd., Ste. 3200 Miami, FL 33101 Tel: (786) 347-2056 paul.chavez@splcenter.org victoria.mesa@splcenter.org
Melissa Crow** (DC Bar #453487) 1101 17th Street, NW, Ste. 705 Washington, DC 20036 Tel: (202) 355-4471 Fax: (404) 221-5857 melissa.crow@splcenter.org
*proceeding pro hac vice **pro hac vice motions forthcoming

By: /s/ Mark H. Reeves Mark H. Reeves (GA Bar #141847) Enterprise Mill 1450 Greene Street, Ste. 230 Augusta, GA 30901 Tel: (706) 823-4206 Fax: (706) 828-4488 mreeves@kilpatricktownsend.com
Tamara Serwer Caldas** (GA Bar #617053) Kathryn E. Isted* (GA Bar #908030) Amanda Brouillette** (GA Bar #880528) 1100 Peachtree St., NE, Ste. 2800 Atlanta, GA 30309 Tel: (404) 815-6006 Fax: (404) 541-4754 tcaldas@kilpatricktownsend.com kisted@kilpatricktownsend.com abrouillette@kilpatricktownsend.com
ASIAN AMERICANS ADVANCING JUSTICEATLANTA
Hillary Li* (GA Bar #898375) Phi Nguyen* (GA Bar #578019) 5680 Oakbrook Pkwy, Ste. 148 Norcross, GA 30093 Tel: (404) 585-8466 Fax: (404) 890-5690 hli@advancingjustice-atlanta.org pnguyen@advancingjustice-atlanta.org

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 Case 5:20-cv-00046-LGW-BWC Document 32 Filed 04/18/20 Page 1 of 14

In the United States District Court for the Southern District of Georgia
Waycross Division

JENNER BENAVIDES, et al.,

Plaintiffs/Petitioners, v.

No. 5:20-cv-46

PATRICK GARTLAND, et al.,

Defendants/Respondents.

ORDER

This matter is before the Court on a motion by

Plaintiff/Petitioners Jenner Benavides, David Fernandez, and

Gerardo Arriaga (collectively “Petitioners”), proceeding under

pseudonyms, for a Temporary Restraining Order and Emergency Writ

of Habeas Corpus. Dkt. No. 4.1 The motion has been fully briefed.

Additionally, the Court held a hearing on April 15, 2020 during

which the parties were afforded opportunities to present argument

and evidence to the Court. Petitioners are civil detainees at the

United States Immigration and Custom Enforcement (“ICE”)

Processing Center in Folkston, Georgia (the “Folkston Facility”).

They allege to have medical conditions that would increase their

risk of permanent injury or death if they were to contract COVID-

1 Because Respondents have already been notified of Petitioners’ motion and given an opportunity to respond, the Court will address the motion as one for a preliminary injunction. See Fed. R. Civ. P. 65.

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19, a respiratory illness spread by a novel Coronavirus that is proliferating throughout the United States and the rest of the world. They further allege that the conditions at the Folkston Facility have made them uniquely susceptible to contracting COVID19. Accordingly, they ask for “emergency release through a writ of habeas corpus or, alternatively, through injunctive relief under Rule 65.” Dkt. No. 4-1 at 15. For the reasons discussed below, the Court finds that Petitioners have not shown that they are likely to prevail on their underlying claims and will therefore DENY their motion for preliminary relief.
BACKGROUND The first outbreak of the virus causing COVID-19 is believed to have originated in late 2019 in Wuhan, China.2 Within months, the World Health Organization (“WHO”) declared COVID-19 to be a pandemic.3 In February 2020, community transmission of Coronavirus was detected in the United States.4 Since then, the virus has
2 See Lauren Gardner, Johns Hopkins Whiting School of Engineering, Mapping 2019-nCOV, available at https://systems.jhu.edu/research/public-health/ncov/ (last accessed Apr. 17, 2020); see also Centers for Disease Control and Prevention, CDC Newsroom, available at https://www.cdc.gov/media/dpk/diseases-andconditions/coronavirus/coronavirus-2020.html (last accessed Apr. 17, 2020). 3 See WHO, WHO Director-General’s Opening remarks at the media briefing on COVID-19, March 11, 2020, available at https://www.who.int/dg/speeches/detail/who-director-general-s-openingremarks-at-the-media-briefing-on-covid-19---11-march-2020 (last accessed Apr. 17, 2020). 4 CDC, Morbidity and Mortality Weekly Report, April 17, 2020, https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e4.htm?s_cid=mm6915e4_w (last accessed Apr. 17, 2020).
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continued to spread rapidly, infecting hundreds of thousands of
people in this country as of the writing of this opinion.5
To date, there is no known vaccine to protect against COVID-
19, nor is there an antiviral treatment for those who are infected.6
Instead, the most effective approach to minimizing fallout from
the disease is to stay clean and to avoid contact with others.
Specifically, the CDC recommends, inter alia, frequent hand-
washing, avoiding close contact with others, using face coverings
while in public, and cleaning and disinfecting frequently touched
surfaces.7
Symptoms from exposure to Coronavirus range from mild cold-
like symptoms to severe respiratory distress and even death.8
Though relatively little is known about the risk factors for COVID-
19, preliminary data suggests that older adults and individuals
with certain underlying medical conditions are most susceptible to
developing serious medical complications from the infection.9
Conditions that might increase the risk of death or permanent
5 Johns Hopkins University & Medicine, Coronavirus Resource Center, available at https://coronavirus.jhu.edu/map.html (last accessed Apr. 17, 2020). 6 See WHO, Q&A on coronaviruses (COVID-19), available at https://www.who.int/news-room/q-a-detail/q-a-coronaviruses (last accessed Apr. 17, 2020); see also Dkt. No. 4-3 at 3. 7 CDC, Coronavirus Disease 2019, Protect Yourself, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/prevention.html (last accessed Apr. 17, 2020). 8 See CDC, Coronavirus Disease 2019, Symptoms, available at https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last accessed Apr. 17, 2020). 9 CDC, Coronavirus Disease 2019, People Who Are At Higher Risk, available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-athigher-risk.html (last accessed Apr. 17, 2020).
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injury from COVID-19 include, but are not limited to, chronic lung disease, severe obesity, diabetes, liver disease, serious heart conditions, and other conditions that compromise the immune system, such as HIV or AIDS.10
Petitioners each allege that they have conditions that are believed to increase their risk of complications if exposed to COVID-19. Petitioner Benavides is a twenty-seven year-old transgender detainee who has been in ICE custody since approximately May 2019. Dkt. No. 4-9 ¶¶ 2-3. Benavides purports to have been diagnosed with HIV in 2015 and high cholesterol in 2019. Id. ¶¶ 6, 11. She also reports occasional high blood pressure and suffers from certain psychological conditions, including bipolar disorder and severe depression. Id. ¶ 11. Benavides is currently on medication for each of these conditions and receives treatment from healthcare providers for HIV and the mental health conditions. Id. ¶¶ 12, 14.
Petitioner Fernandez is forty-five years old and has been detained since approximately December 2019. Dkt. No. 4-10 ¶¶ 2,5. He was diagnosed with diabetes approximately three years ago and suffered from Tuberculosis approximately ten years prior to that. Id. ¶ 6. Fernandez alleges that since his time at the Folkston Facility, his health has deteriorated. Id. ¶ 8. He indicated that
10 Id.
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he is not able to get enough insulin injections to treat his condition and sometimes fears he is at risk of a heart attack. Id.
Finally, Petitioner Gerardo Arriaga is a twenty-four yearold detainee who has been in the Folkston facility since March 2020. Dkt. No. 4-11 ¶¶ 2-3. He indicates that when he was seventeen, he was diagnosed with Lupus, an autoimmune disease that causes inflammation, swelling, and damage to his joints, skin, kidneys, blood, heart, bones, and lungs. Id. ¶ 5. He also indicated that Lupus predisposes him to “all types” of infections and that he needs medication to manage his symptoms. Id.
Petitioners allege that the conditions at the Folkston Facility increase their risk of contracting COVID-19. First, they contend that the facility has not taken adequate measures to protect against infected individuals entering the facility. They contend that staff and other visitors are permitted to come and go from the facility without adequate screening and are not required to wear any sort of personal protective equipment. Dkt. No. 4-1 at 9-10. They also allege that despite the lack of screening, ICE continues to arrest and bring in new detainees while also transferring current detainees among facilities. Id. Petitioners point to a recent incident whereby detainees from a facility in Florida apparently had been moved to the Folkston Facility despite having been previously exposed to COVID-19 See Dkt. No. 30-2 ¶ 5.
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Second, Petitioners allege that the Folkston Facility lacks adequate hygiene and sanitation practices. Specifically, they contend that the facility uses shared living, eating, and recreation spaces and that Petitioners lack access to soap and cleaning materials. Dkt. No. 4-1 at 10-11. For example, Fernandez alleged in his declaration that detainees are only given small bags of soap each week to wash their hands and bodies and that there is no hand sanitizer available in either the commissary or the facility as a whole. Dkt. No. 4-10 ¶¶ 15-16. Similarly, Benavides alleges that the only soap available for washing and showering are single-use packets that are handed out inconsistently. Dkt. No. 4-9 ¶ 24. Benavides also contends that while detained people who serve food and clean common areas are given gloves, they are not offered face masks or other personal protective equipment. Id. ¶ 26. They are also not instructed to clean the doors or doorknobs. Id. ¶ 27.
Third, Petitioners allege that so-called “social distancing” measures recommended by health officials to prevent the spread of COVID-19 are impossible at the Folkston Facility. They contend that detained people live close together, often in shared dorms. Dkt. No. 4-1 at 11. Specifically, Arriaga stated that the cells detainees share with another roommate contain bunk beds that are no more than two feet apart and that detainees in the common areas are also close together. Dkt. No. 4-11 ¶ 6. To eat, Arriaga alleges
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that they all go to the cafeteria and sit in close proximity to one another. Id. ¶ 7. He acknowledges that this practice has changed recently such that food is given out in boxes. Id.
At least one of the Petitioners—Benavides—alleges that she has been placed in isolation and will remain there for the duration. See Dkt. No. 4-9 at 6-7. However, Benavides alleges that being shut in the small space exacerbates her anxiety and depression. Moreover, Petitioners’ medical experts have stated in declarations that isolation is not sufficient to prevent the spread and advancement of COVID-19 because isolated individuals are monitored less frequently and could come in contact with guards more regularly due to the need to be escorted around the facility. See Dkt. No.4-3 ¶ 22; see also Dkt. No. 4-4 ¶ 20; see also Dkt. No. 4-5 ¶ 8. Petitioners also contend that isolation increases the risk of psychological conditions and symptoms. See Dkt. No. 4-2 ¶ 22.
Finally, Petitioners argue that the location of the Folkston Facility makes Petitioners uniquely susceptible to harm if they were to contract COVID-19. They allege that Folkston is geographically isolated from medical facilities that are adequately equipped to handle the disease. Specifically, they contend that the nearest hospital with ICU capabilities is approximately 26 miles away. Dkt. No. 4-1 at 13. They note that patients would likely need to be transferred to a hospital in
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Brunswick, Georgia which is about 45 miles away. Id. Petitioners allege that the Folkston facility itself is not adequately equipped to address medical emergencies and disease outbreaks. Id. at 12.
Ultimately, Petitioners argue that an outbreak of COVID-19 at the Folkston facility is imminent. Given what they contend are inadequate measures at the Folkston Facility to prevent the spread of the disease and the Petitioners’ unique susceptibility to harm if they were to contract it, Petitioners urge the Court to order their immediate release.
LEGAL STANDARD A preliminary injunction is an “extraordinary and drastic” remedy. Siegel v. LePore, 234 F.3d 1163, 1176-77 (11th Cir. 2000). Indeed, “[w]hen a court employs the extraordinary remedy of injunction it directs the conduct of a party, and does so with the backing of its full coercive powers.” Nken v. Holder, 556 U.S. 418, 428 (2009) (internal quotations and citations omitted). A court should only exercise this power in the rarest of circumstances. For the court to grant such extraordinary relief, a movant must establish four essential elements: (1) a likelihood of success on the merits of the overall case; (2) irreparable injury; (3) the threatened injury outweighs the harm the preliminary injunction would cause the other litigants; and (4) the preliminary injunction would not be averse to the public interest. See Chavez v. Fla. SP Warden, 742 F.3d 1267, 1271 (11th
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Cir. 2014). An injunction is “not to be granted unless the movant clearly establish[es] the burden of persuasion as to all four elements.” CBS Broad v. Echostar Communs. Corp., 265 F.3d 1193, 1200 (11th Cir. 2001) (internal quotations omitted). Moreover, injunctions that do more than preserve the status quo are particularly disfavored. Powers v. Sec’y, Fla. Dep’t of Corr., 691 F. App’x 581, 583 (11th Cir. 2017) (internal quotations and citation omitted).
DISCUSSION Even assuming the truth of Petitioners’ factual contentions, the Court finds that Petitioners have failed to establish a likelihood of success on their claims because they have simply not stated a cognizable legal basis for release from confinement. Petitioners assert two legal grounds for relief. First, Petitioners contend that Courts have “broad power under Rule 65 to fashion equitable remedies to address constitutional violations in prisons.” Dkt. No. 4-1 at 15. Though this contention is somewhat vague, Petitioners seem to argue that Rule 65 creates a cause of action under which claimants may seek relief. This argument is without merit. It is well-settled that for Petitioners to be entitled to relief under Rule 65, they must tether their request for relief to a cause of action set forth in their pleading. See Fra. S.P.A. v. Surg-O-Flex of Am. Inc., 415 F. Supp. 421, 426 (S.D.N.Y. 1976)
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(stating that Rule 65 “is a mechanism to secure provisional relief for an underlying claim in extraordinary circumstances” but that it “does not introduce an independent cause of action”); see also Adelman v. Rheem Mfg. Co., No. 2:15-cv-190, 2015 U.S. Dist. LEXIS 107265, at *23 (D. Ariz. Aug. 14, 2015) (“[I]t is well-settled that a claim for ‘injunctive relief, standing alone, is not a cause of action.”); see also Alabama v. United States Army Corps of Eng’rs, 424 F.3d 1117, 1134 (11th Cir. 2005) (“[I]njunctive relief must relate in some fashion to the relief requested in the complaint.”). Indeed, the ‘likelihood of success’ prong itself suggests that Rule 65 does not operate as an independent mechanism of relief because the movants are required to show “a substantial likelihood of prevailing on at least one of the causes of action [they have] asserted.” Alabama, 424 F.3d at 1134 (emphasis added). Since Rule 65 is not a standalone basis upon which a petitioner can bring a constitutional claim, the Court finds that Petitioners are not likely to succeed on the merits of any claim predicated only on Rule 65.
Petitioners argue in the alternative that they are entitled to relief via a writ of habeas corpus under 28 U.S.C. § 2241. This argument also fails. Petitioners constitutional challenges to their confinement are ultimately objections to their conditions of confinement. Though circuit courts are divided on whether habeas is the appropriate mechanism for challenging conditions of
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confinement, the weight of authority in the Eleventh Circuit is that it is not. See Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir. 1990) (“If these claims are considered in a habeas corpus context, however, this Court has held that even if a prisoner proves an allegation of mistreatment in prison that amounts to cruel and unusual punishment, he is not entitled to release.”); Vaz v. Skinner, 634 Fed. App’x 778, 780 (11th Cir. 2015) (“Claims challenging the fact or duration of a sentence fall within the ‘core’ of habeas corpus, while claims challenging the conditions of confinement fall outside of habeas corpus law.”); Cook v. Baker, 139 Fed. App’x 167, 168 (11th Cir. 2005) (holding similarly to Vaz); Daker v. Warden, No. 18-cv-14984, 2020 U.S. App. LEXIS 4764, at *2 (11th Cir. 2020) (holding similarly to Vaz); A.S.M. v. Donahue, No. 7:20-cv-62, 2020 U.S. Dist. LEXIS 65226, at *2, 4 (M.D. Ga. Apr. 10, 2020) (finding that habeas “is not the appropriate mechanism” for the ICE detainee petitioner’s request for release from confinement due to COVID-19). Instead, the proper vehicle for bringing such claims is a civil rights action, such as under Bivens v. Six Unknown Named Agents, 403 U.S. 688 or 42 U.S.C. § 1983. See Hampton v. Fed. Corr. Inst., NO. 1:09-cv-00854, 2009 U.S. Dist. LEXIS 52368, at *5 (N.D. Ga. 2009) (“[T]he proper vehicle for a prisoner to challenge his conditions of confinement is a civil rights, rather than a habeas corpus, action.”) (citing McKinnis v. Mosely, 693 F.2d 1054, 1056-57) (11th Cir. 1982)).
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However, Petitioners insisted at the April 15 hearing that their action is not one under Bivens.
Instead, Petitioners contend that habeas actions can be used to challenge a detainee’s conditions of confinement where there are no other means of relief to remedy the conditions other than release. Assuming, without deciding, that this is a correct statement of the law, the Court finds that Petitioners have not shown a likelihood of success on such a claim. Indeed, the conditions in the Folkston Facility that Petitioners allege contribute to an increased risk of the spread of COVID-19—assuming these claims are true—could be remedied with internal facility changes, such as more vigilant screening measures, increased availability of cleaning supplies, and greater efforts to create distance between detainees. Petitioners’ expert, Robert B. Greifinger, M.D., urges that some of the available measures, such as solitary confinement for vulnerable detainees, would not be effective because the facility might not adequately implement solitary confinement procedures. However, testimony that changed conditions might be inadequately implemented proves too much. At bottom, Petitioners have not shown a likelihood of success in proving that release is the only means of remedying the conditions of which they complain. Moreover, even to the extent that some aspects of detention necessarily increase the risk of exposure to contagious diseases, the Constitution does not require that
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detention facilities reduce the risk of harm to zero. See Williams v. Scibana, No. 04-C-349-C, 2004 U.S. Dist. LEXIS 15548, at *10 (W.D. Wis. Aug. 3, 2004) (“Although the Fifth Amendment’s due process clause provides federal inmates with certain minimum procedural safeguards, it does not create a right to procedural perfection.”). Indeed, even if detainees were released, they—like all people—would still face some risk of exposure to COVID-19.
CONCLUSION The Court is sympathetic to the plight of Petitioners, but they have not shown that the form of remedy they seek—complete release—is appropriate. The evidence put forth thus far does not establish a likelihood of success in proving that release is the only way to remedy the conditions. For the reasons above, the Court finds that Petitioners have failed to show a likelihood of success on the merits of any claim that would entitle them to release. Therefore, the Court DENIES their motion for preliminary relief. As the Court in A.S.M. v. Donahue did, this Court emphasizes the narrow reach of this Order. It does not mean that Petitioners could not eventually prevail, just that the credible evidence brought forth thus far does not show that they are likely to do so. SO ORDERED, this 18th day of April, 2020.
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HON. LISA GODBEY WOOD, JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA
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 Case 5:20-cv-00046-LGW-BWC Document 89 Filed 07/08/20 Page 1 of 35

In the United States District Court for the Southern District of Georgia
Waycross Division

FILED John E. Triplett, Acting Clerk United States District Court
By CAsbell at 4:45 pm, Jul 08, 2020

JENNER BENAVIDES, DAVID FERNANDEZ, GERARDO ARRIAGA, AJIT JUMAR, SCOTT JAMES, and WINSTON BROWN,

No. 5:20-cv-46

Plaintiffs/Petitioners,

v.

PATRICK GARTLAND, THOMAS GILES, MATTHEW T. ALBENCE, and CHAD WOLF,

Defendants/Respondents.

ORDER

This matter is before the Court on a second motion by

Plaintiffs/Petitioners (“Petitioners”) seeking a preliminary

injunction and emergency habeas relief. Petitioners are civil

detainees at the United States Immigration and Custom Enforcement

(“ICE”) Processing Center in Folkston, Georgia (the “Folkston

Facility”). In their original motion (the “First Injunction

Motion”) Petitioners sought release from confinement from the

Folkston Facility based on their risk of exposure—and their unique

vulnerability to—COVID-19, a respiratory illness spread by a novel

Coronavirus. On April 18, 2020, this Court denied the First

Injunction Motion (the “April Order”) finding that habeas relief

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is not available to detainees seeking release from detention based on claims about conditions of confinement. Instead, the Court found, in part, that the proper vehicle for challenging unlawful conditions of confinement is a civil rights action, such as those brought under Bivens v. Six Unknown Named Agents, 403 U.S. 688 or 42 U.S.C. § 1983.
On May 8, 2020, Petitioners filed an amended pleading followed by a second Motion for Preliminary Injunction and Emergency Habeas Relief (the “Second Injunction Motion”) whereby they again seek release from the Folkston Facility. In the alternative, Petitioners ask for an order requiring Respondents to take certain actions to reduce their risk of exposure to COVID-19, including, inter alia, complying with guidelines issued by the Centers for Disease Control and Prevention (“CDC”). The Second Injunction Motion has been fully briefed and is ripe for review. Furthermore, on June 9, 2020, this Court held a hearing during which the parties were afforded an additional opportunity to present arguments to the Court. For the reasons below, the Court finds that the Second Injunction Motion should be DENIED.
BACKGROUND Most of the pertinent facts and procedural history are set forth in detail in this Court’s April Order. In their amended pleading, Petitioners added new parties as petitioners to their Petition/Complaint. Without dissertating on the details of these
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new Petitioners, the Court will accept as true that the new parties are detainees at the Folkston Facility who are uniquely vulnerable to permanent injury or death if exposed to COVID-19.1 The Primary new and relevant facts in the Second Injunction Motion concern allegations that Respondents are failing to adequately protect Petitioners from COVID-19 by failing to adhere to ICE’s 2011 Performance-Based National Detention Standards (“PBNDS”) and the CDC’s “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities.” (“CDC Guidance”)2. Specifically, Petitioners allege that under PBNDS, Respondents are required, inter alia, to comply with CDC Guidance on managing the spread of COVID-19 in detention facilities. Relying largely on Petitioners’ declarations describing conditions in the Folkston Facility, Petitioners outline a series of ways in which Respondents have allegedly failed to comply with CDC Guidance.
First, Petitioners contend that CDC Guidance recommends individuals maintain six feet of distance from one another regardless of whether they are experiencing symptoms. Dkt. No. 411 at 7. Petitioners allege that Respondents “cannot possibly
1 Petitioners concede that Gerardo Arriaga, a Petitioner in the First Injunction Motion, and Ajit Kumar, a new Petitioner, have been transferred to a different facility, effectively mooting their claims for injunctive relief. See Dkt. No. 74 at 16. The parties dispute, however, whether the Court retains jurisdiction over Arriaga and Kumar’s underlying claims. See id. The Court need not reach a decision on the latter issue at this stage. Instead, it simply finds that Arriaga and Kumar’s claims for injunctive relief are moot. 2 Available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidancecorrectional-detention.pdf.
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implement” this practice at the Folkston Facility given that detainees live and eat in close quarters, share showers and toilets, and line up close to one another to go to the cafeteria and other places. Id. at 8-9.
Second, Petitioners allege that CDC Guidance requires “intensified cleaning and disinfecting procedures” such as cleaning frequently touched surfaces and lifting restrictions on undiluted disinfectants. Id. at 9 (quoting CDC Guidance at 9). The CDC also recommends taking precautions while using these products, such as wearing gloves and ensuring proper ventilation. Id. at 910. Petitioners contend that detainees at the Folkston Facility are responsible for cleaning their own living spaces and common areas but are not offered adequate cleaning supplies, gloves or facemasks. Id. at 10. Cleaning solutions are also often diluted or otherwise inadequate. Id.
Third, Petitioners allege that CDC Guidance requires detention facilities to stop transferring detainees between facilities unless “necessary,” in which case specific measures should be taken to screen, isolate, or quarantine new intakes. Id. (citing CDC Guidance at 14). Petitioners cite to observations by detainees that new detainees have been moved in and out of the Folkston Facility throughout the previous month and that “based on the limited information available to Petitioners,” Respondents
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have not complied with CDC Guidance on screening, isolating, and quarantining new intakes. Id. at 10-11.
Fourth, Petitioners allege that CDC Guidance requires Respondents to “post signage throughout Folkston regarding COVID19 symptoms, risk mitigation practices, and instructions to report symptoms to staff.” Id. at 12. The guidance also requires “ongoing communication with detained people about risk reduction and COVID19 transmission in the facilities.” Id. Petitioners allege that ICE has never informed them about COVID-19 nor recommended hygiene or social distancing practices. Id. They further allege that when they ask about COVID-19, Folkston personnel threaten to take away possessions or place them in solitary confinement. Id. Moreover, Petitioners contend that, contrary to CDC Guidance, notices about COVID-19 are sometimes offered only in English, which some Petitioners cannot understand. Id.
Fifth, Petitioners point to CDC Guidance about when symptoms develop, in which case detainees are to wear a face mask, be placed in medical isolation, and receive immediate medical evaluation and treatment. Id. at 13. If facilities cannot quarantine detainees individually, the CDC has stated that “cohorting,” or quarantining as a group, is acceptable so long as separate cohorts are established for confirmed cases, suspected cases, and close contact cases. Id. at 13. Contrary to this guidance, Petitioners allege that Respondents “routinely ignore reports of COVID-19
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symptoms” at the Folkston Facility and that symptomatic individuals remain in the general population without being seen by medical staff. Id.
Finally, Petitioners point to a series of miscellaneous deficiencies at the Folkston Facility that they contend violate CDC guidelines. These include: 1) limited access to soap and hand sanitizer, 2) limited access to and limited use of personal protective equipment (“PPE”) by detainees and staff, respectively, 3) inadequate screening measures for people entering the Folkston Facility, and 4) generally inadequate medical care. Id. at 14-15.
Petitioners allege that on May 4, 2020, a few weeks after this Court denied the First Injunction Motion, ICE publicly confirmed the first known case of COVID-19 at the Folkston Facility. Id. at 2. This, according to Petitioners, obligates Respondents to respond in accordance with CDC guidance, including quarantines and screening. Id. at 15-16. Petitioners argue that the best way to mitigate the spread of COVID-19 at the Folkston Facility is to release vulnerable detainees. Id. at 17. Nevertheless, they assert that “[a]t a minimum” the Court should order “strict compliance with CDC Guidance” while the Court considers the merits of their case. Id.
Respondents deny that the Folkston Facility is failing to conform to CDC Guidance and identify several measures being taken to help reduce the spread of COVID-19. Specifically, Respondents
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contend that detainees entering the facility undergo medical screenings during which they are assessed for certain symptoms of COVID-19 and questioned about possible exposure. See Dkt. No. 691 ¶ 17; see also 69-2 ¶ 17. Detainees with symptoms are placed in isolation and tested for the disease; those who test positive are isolated and treated accordingly. Dkt. No. 69-1 ¶ 18; see also Dkt. No. 69-2 ¶ 18. All other detainees are placed in cohorts for a fourteen-day quarantine. Dkt. No. 69-2 ¶ 19; see also Dkt. No. 69-1 ¶ 19. Respondents contend that social visits to the Folkston Facility have been suspended and that “essential visitors,” such as attorneys, are required to undergo screening. See Dkt. No.69-2 ¶¶ 9-11. Those deemed to pose a risk to staff or detainees are denied entry, and those who are allowed to enter are required to wear PPE. Id. ¶¶ 10, 13.
Respondents contend that protective measures are also being taken within the Folkston Facility itself. In support, they cite to declarations submitted by Steven Fontanazza, the Acting Ice Field Office Director and Ronald Warren, the Interim Facility Administrator of the Folkston Facility. First, Respondents point to efforts to keep the facility clean. They allege that dorms and common areas undergo “sanitization procedures” every two hours during which various surfaces, including tables, doors, sinks, and restrooms are cleaned. See Dkt. No. 69-2 ¶¶ 25, 31, 32. Food carts and food preparation areas are also cleaned regularly. Id. ¶ 26.
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Detainees and staff assigned to clean certain areas are given gloves, and all detainees are given 24-hour access to soap, shampoo, and lotions. See id. ¶¶ 28-29.
Second, Respondents contend that there are efforts to reduce the spread of COVID-19 internally. They allege that staff are given masks that they are directed to wear in the Folkston Facility, and that detainees are issued new masks three times weekly. Id. ¶¶ 3637. Individuals entering the facility are advised to stand six feet apart, and dormitory populations have been reduced in an effort to accommodate social distancing. Dkt. No. 69-2 ¶¶ 16, 4850. Furthermore, the detainee dining hall has been closed and detainees now receive meals in their housing units. Id. ¶ 55.
Finally, Respondents allege that detainees are kept informed about COVD-19 prevention and given adequate access to medical treatment in the event there is an outbreak. Specifically, Respondents state that flyers discussing COVID-19 prevention are distributed throughout the facility. Id. ¶ 56. Administrative staff also deliver weekly addresses on prevention measures, which are presented to detainees in-person, over an intercom system, and through the detainees’ tablets. Id. ¶ 57. Medical staff also offer guidance and information about COVID-19 during screenings. Id. ¶ 58. In the event medical issues arise, Respondents also allege that the facility provides twenty-four-hour access to medical
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care, daily access to sick calls, and medical observation rooms. Dkt. No. 69-1 ¶ 22; see also Dkt. No. 69-2 ¶ 61.
LEGAL STANDARD A preliminary injunction is an “extraordinary and drastic” remedy. Siegel v. LePore, 234 F.3d 1163, 1176-77 (11th Cir. 2000). Indeed, “[w]hen a court employs the extraordinary remedy of injunction it directs the conduct of a party, and does so with the backing of its full coercive powers.” Nken v. Holder, 556 U.S. 418, 428 (2009) (internal quotations and citations omitted). A court should only exercise this power in the rarest of circumstances. For the court to grant such extraordinary relief, a movant must establish four essential elements: (1) a likelihood of success on the merits of the overall case; (2) irreparable injury; (3) the threatened injury outweighs the harm the preliminary injunction would cause the other litigants; and (4) the preliminary injunction would not be averse to the public interest. See Chavez v. Fla. SP Warden, 742 F.3d 1267, 1271 (11th Cir. 2014). An injunction is “not to be granted unless the movant clearly establish[es] the burden of persuasion as to all four elements.” CBS Broad v. Echostar Commc’ns. Corp., 265 F.3d 1193, 1200 (11th Cir. 2001) (internal quotations omitted). Moreover, injunctions that do more than preserve the status quo are particularly disfavored. Powers v. Sec’y, Fla. Dep’t of Corr., 691 F. App’x 581, 583 (11th Cir. 2017).
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DISCUSSION Petitioners contend that conditions at the Folkston Facility infringe on certain of their constitutional rights. Specifically, they allege that their continued detention during the COVID-19 pandemic constitutes impermissible punishment and deliberate indifference to a substantial risk of harm in violation of the Due Process Clause of the Fifth Amendment. They further contend that Respondents’ failure to comply with CDC Guidance violates the Accardi doctrine—developed in United States ex rel. Accardi v. Shaughenessy, 347 U.S. 260 (1954) and its progeny—which they also argue infringes on their Fifth Amendment due process rights. As an initial matter, the Court must determine whether Petitioners’ claims are grounded in a cause of action. Violations of the constitution, without more, do not necessarily form a basis for relief. Instead, claims must form a recognized cause of action, whether expressed by statute or implied in the constitution. Plaintiffs first argue that they are entitled to relief under 28 U.S.C. § 2241, the federal habeas statute. As this Court held in the April Order, however, habeas is not an appropriate mechanism for challenging conditions of confinement in the Eleventh Circuit. See Dkt. No. 32 at 10-11. Habeas actions function solely as a means to challenge the “fact or duration” of a sentence so as to secure release from confinement. See Vaz v. Skinner, 634 Fed. App’x 778, (11th Cir. 2015); see also Smith v. Southwood, 226 Fed. App’x 882,
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(11th Cir. 2007). Moreover, allegations of “mistreatment in prison”—even if sufficient to establish a constitutional violation—do not entitle a claimant to release. See Gomez v. United States, 889 F.2d 1124, 1126 (11th Cir. 1990) (“[E]ven if a prisoner proves an allegation of mistreatment in prison that amounts to cruel and unusual punishment, he is not entitled to release.”).
Here, Petitioners’ claims are ultimately a challenge to the conditions of confinement at the Folkston Facility; that is, Petitioners contend that Respondents have not offered them adequate protection against the spread of COVID-19. However, they allege that release via habeas is appropriate where “there are no conditions of confinement that are sufficient to prevent irreparable constitutional injury.” Dkt. No. 41-1 at 30 (quoting Vazquez Barrera v. Wolf, No. 4:20-cv-1241, 2020 WL 1904497, at *4 (S.D. Tex. Apr. 17, 2020).3 Furthermore, even assuming this is an accurate statement of the law, Petitioners have not shown that they are likely to succeed on a claim that the alleged unconstitutional conditions at the Folkston Facility are
3 The only authority Petitioners cite in support of this specific proposition is a recent case from the Southern District of Texas. Vazquez, 2020 WL 1904497, at *4. That decision, however, relies primarily on Preiser v. Rodriguez, a case in which state prisoners brought an action under 42 U.S.C. § 1983 challenging the state’s failure to provide them with good time credits. See Preiser v. Rodriguez, 93 S. Ct. 1827, 1829 (1973). There, the plaintiffs’ claims were far more suitable for habeas relief than the claims alleged here. Moreover, the Supreme Court in that case expressly declined to “explore the appropriate limits of habeas corpus as an alternative remedy to a proper action under § 1983.” Id. at 1841. Petitioners have not pointed to any authority from the Eleventh Circuit holding that habeas relief is available under the circumstances alleged.
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incurable. To the contrary, they point to a series of specific acts that they believe Respondents could take to help alleviate problems at the Folkston Facility. See Dkt. No. 41 at 3-7. Petitioners suggest that even with these measures in place, they would still face significant risks of exposure to COVID-19 while in detention. See Dkt. No. 74 at 15 (“Even with the best-laid plans to address the spread of COVID-19 in detention facilities, the release of vulnerable individuals is a key part of a risk mitigation strategy.”) (quoting Dkt. No. 4-3 ¶ 17). However, as this Court held in the April Order, “the Constitution does not require that detention facilities reduce the risk of harm to zero.” Dkt. No. 32 at 12-13 (citing Williams v. Scibana, No. 04-C-349-C, 2004 U.S. Dist. LEXIS 15548, at *10 (W.D. Wis. Aug. 3, 2004). Accordingly, the Court finds that Petitioners have failed to establish a substantial likelihood of success on a cause of action under 28 U.S.C. § 2241 and will therefore deny their motion on that ground.
Alternatively, Petitioners argue that they are entitled to relief under an implied cause of action arising out of the Fifth Amendment. It is clear, however, that a Bivens action, like an action under § 1983, cannot be used as a mechanism to secure release from detention. See Abella v. Rubino, 63 F.3d 1063, 1066 (11th Cir. 1995). Petitioners vaguely argue that the implied relief they seek is not derived from Bivens but rather some other form of
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implied cause of action arising out of the constitution. See Dkt. No. 41-1. As noted above, Petitioners also seek, in the alternative, injunctive relief modifying their conditions of confinement. Assuming, without deciding, that Petitioners have stated a viable implied cause of action under the constitution, the Court finds that Petitioners have simply not shown they are likely to succeed on the merits of their constitutional claims. The Court now turns to these specific claims.
A. Impermissible Punishment Claims for impermissible or unconstitutional punishment are
derived from the Fifth Amendment right to due process. In contrast to post-trial prisoners’ right to be free from cruel and unusual punishment under the Eighth Amendment, pre-trial or civil detainees may not be punished at all. Therefore, restrictions or conditions which are deemed “punishment” violate the Due Process clause under the Fifth Amendment. See Bell v. Wolfish, 99 S. Ct. 1861, 1872 n.16 (1979); see also Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004) (“Due process requires that a pretrial detainee not be punished prior to a lawful conviction.”). Ultimately, the question of whether restrictions or conditions constitute punishment turns on whether they are “imposed for the purpose of punishment or [are] but an incident of some other legitimate governmental purpose.” Bell, 99 S. Ct. at 1873. Pretrial or civil detainees seeking to show that they are being
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punished in violation of the Due Process Clause must show either an “intent to punish” or that a condition “is not reasonably related to a legitimate goal.” Magluta, 375 F.3d at 1273.
As an initial matter, the Court must determine which “restrictions or conditions” are alleged to violate the constitution. Petitioners seem to argue that the mere fact of their confinement, in light of circumstances at the Folkston Facility, constitutes punishment in violation of the Fifth Amendment. See Dkt. No. 41-1 at 20 (arguing that “Petitioners’ continued detention under the current conditions at Folkston lacks a reasonable relationship to any legitimate governmental purpose”) (emphasis in original). Specifically, they contend that the threats posed to them from exposure to COVID-19 “vastly outweigh[] . . . any purported governmental interest in Petitioners’ civil confinement.” Id. However, this argument misapprehends the nature of unconstitutional punishment jurisprudence. The inquiry into whether a condition amounts to punishment is not a question of whether a detainee should be detained, but rather whether there are certain aspects of detention that infringe on their constitutional rights, i.e. that constitute punishment. See Bell, 99 S. Ct. at 1871 (“We are not concerned with the initial decision to detain an accuse and the curtailment of liberty that such a decision necessarily entails.”) (citing Gerstein v. Pugh, 420 U.S.
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103 (1975)).4 Indeed, it is well-settled that after the government has exercised its authority to detain a person pending trial, “it obviously is entitled to employ devices that are calculated to effectuate this detention.” Id. at 1873.
Thus, the appropriate question is whether there are certain conditions of confinement that evince an “intent to punish” or are “not reasonably related to a legitimate goal.” Magluta, 375 F.3d at 1273. Petitioners have not offered any evidence—nor do they argue—that Respondents expressly intended to punish them by failing to take adequate measures to protect them from COVID-19. Instead, Petitioners rest on the argument that the Folkston Facility’s response to COVID-19—or more specifically, a lack thereof—lacks a legitimate governmental purpose. In support, they point to evidence from a range of sources that they contend show deficiencies at the Folkston Facility. While this evidence suggests a possibility of success on the merits, it falls short of satisfying Petitioners’ burden that they are likely to succeed. See Nken v. Holder, 556 U.S. 418, 434 (2009) (finding that “[m]ore than a mere possibility of relief is required” to satisfy the first element of injunctive relief) (quotations omitted).
4 In reaching this conclusion, the Court does not intend to foreclose the possibility that under some set of facts the circumstances of civil or pretrial detention could be so extreme or irreparable that the fact of confinement itself is the “condition” that constitutes punishment. However, as discussed supra, that is not the set of facts before the Court here.
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Most significantly, Petitioners rely on their own declarations describing experiences in the Folkston Facility. These declarations include, inter alia, allegations of limited social distancing, dkt. no. 37-6 at 4-5, 11; dkt. no. 37-7 at 5; dkt. no. 37-8 at 5; dkt. no. 37-9 at 3-4; dkt. no. 37-10 at 5; dkt. no. 7310 at 62, limited access to cleaning supplies, dkt. no. 37-6 at 5; dkt. no. 37-7 at 4-5; dkt. no. 37-8 at 5; dkt. no. 37-9 at 3; dkt. no. 37-10 at 6, deficient efforts to keep the facility clean, dkt. no. 37-6 at 6; dkt. no. 37-7 at 6; dkt. no. 37-8 at 4; dkt. no. 73-10 at 61, and a general failure to take measure to keep coronavirus from entering and spread through the facility, dkt. no. 37-6 at 9; dkt. no. 37-7 at 6; dkt. no. 37-8 at 3; dkt. no. 37-10 at 4. Many of these descriptions contrast sharply with declarations from both the Acting ICE Field Office Director and the Interim Facility Administrator for the Folkston Facility identifying a number of measures taken to protect detainees from exposure to COVID-19. Dkt. Nos. 69-1, 69-2. Such measures include screening and intake procedures, enhanced cleaning regimens, social distancing policies, and efforts to educate detainees on COVID-19 prevention. Id. However, the mere fact that Petitioners have offered a conflicting version of the facts does not entitle them to preliminary relief. See R. Miller Architecture, Inc. v. Edgington Enterprises, Inc., No. 6:06-cv-871, at *4 (M.D. Fla. Aug. 3, 2006) (concluding that disputed facts militated against a
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finding of a likelihood of success); see also Tradebank
International Franchising Corporation v. Florida Barter Exhcnage,
LLC, No. 1:12-cv-2810, 2013 WL 12122427 at *4 (N.D. Ga. Jan 7,
2013) (same). Rather, Petitioners must provide enough evidence to
show that their version of the facts is likely to prevail at trial.5
That they cannot do.
At this stage, Petitioners’ evidence leaves much room for
doubt. As Respondents point out, some of the detainee declarations
cited in support of Petitioners’ motion concede that, at least to
some degree, the Folkston Facility has incorporated measures to
protect against the spread of COVID-19. See Dkt. No. 69 at 7-9.6
Furthermore, many of the detainee declarations rely on speculation
and hearsay.7 Detainees tend to make assumptions about who has
5 Petitioners point to an inconsistency in the Warren and Fontanazza declarations, noting that the former claims all incoming detainees are placed into a fourteen-day cohort while the latter claims that only symptomatic detainees are placed into such a cohort. In his deposition, Warren discusses the automatic 14-day cohort in some detail, suggesting that his view more accurately captures the Folkston Facility’s screening procedure. See Dkt. No. 81-2 at 11. Furthermore, Stephen Davis, the Health Service Administrator, testified as to his understanding that new arrivals at the facility are quarantined for fourteen days. Dkt. No. 73-13 at 5. Regardless, the discrepancy between the Warren and Fontanazza depositions does not necessarily undermine the credibility of Respondents’ evidence such as to allow the Court to determine that Petitioners are likely to prevail at trial. This is particularly true where, as discussed below, there are also holes in Petitioners’ evidence. 6 Petitioners argue that these concessions are cherry-picked from the record and overlook “vastly more evidence from Petitioners that they have continued to observe and experience first-hand violations and inconsistencies around CDCrecommend practices related to social distancing.” Dkt. No. 74 at 4. This may be true. Indeed, the weight of Petitioners’ evidence is that the Folkston Facility is deficient in their efforts to prevent the spread of COVID-19. However, the fact that there is some equivocation in Petitioners’ evidence is significant in determining whether Petitioners are likely to prevail on their claims, particularly where declarations from ICE officials categorically insist that they are taking all recommended measures to protect detainees. 7 Admittedly, courts may rely on hearsay or other inadmissible forms of evidence at the preliminary injunction stage if it is “appropriate given the character
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potentially been exposed to COVID-19 and their corresponding risk of exposure based on conjecture or conversations with unidentified inmates or staff. See, e.g., Dkt. No. 73-10 at 63 (describing having learned about people with COVID-19 from a detainee who had been informed about it from another detainee); Dkt. No. 37-8 at 34 (stating that certain detainees were new “because they had their bags of belongings with them,” and referring to an “officer” who indicated “they were not going to stop” bringing in new people); Dkt. No. 37-9 at 4 (stating that they “heard that kitchen staff might be infected with COVID-19 or afraid to work because of COVID19”); Dkt. No. 37-10 at 5 (stating their “understanding” that detainees in a certain unit had COVID-19 and that “we learned” that detainees from that unit had cleaned their new dorm). They also make generalizations about facility-wide conditions based on limited or isolated information. See Dkt. No. 73-10 at 70 (“I see some detained people, guards and staff using face masks, but not all of them.”); see also Dkt. No. 37-5 at 4 (“To my knowledge, no detainees have been quarantined and new detainees are bring brought into Folkston without being quarantined”).8
and objectives of the injunctive proceeding.” Levi Strauss & Co. v. Sunrise Intern. Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995) (quoting Asseo v. Pan American Grain Company, 805 F.2d 23, 26 (1st Cir. 1986)). However, this does not necessarily mean courts must ignore indicia that this evidence is unreliable. 8 This is not to suggest that Petitioners’ evidence lacks all credibility, nor does the Court find that a reasonable jury could not disagree with the Court’s view of the evidence. Instead, the Court merely finds that the evidence presented at this stage is not sufficient to satisfy the Petitioners’ burden under the first element of the preliminary injunction standard to establish
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Petitioners also append to their motion declarations from Homer Venters, M.D., a physician and epidemiologist, who opines that the Folkston Facility is not adequately protecting detainees from COVID-19. See Dkt. Nos. 41-3, 73-10. However, Dr. Venters’ first declaration is of limited value to Petitioners as it primarily addresses ICE’s nationwide response to COVID-19 rather than offering any particularized assessment of the Folkston Facility. See, e.g., Dkt. No. 41-3 at 5 (identifying materials that contributed to Dr. Venters’ opinion, including ICE memorandums, guidance, and response requirements). To be sure, Respondents’ evidence suggests that at least some of the deficiencies that Dr. Venters attributes broadly to ICE facilities nationwide are not necessarily problems at the Folkston Facility. Compare id. at 6-7 (identifying the importance of screening “for active symptoms including fever and known sick contacts of any type every time a person, whether a staff member or detained person, enters an ICE facility.”), with Dkt. No. 69-2 at 4-5 (stating that essential visitors and detainees being processed must complete a temperature check and screening questionnaire and that anyone who poses a risk is not permitted into the facility’s general population).
that measures to protect detainees against COVID-19 are so deficient as to constitute punishment.
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Dr. Venters’ second declaration, though more specific to the Folkston Facility, relies heavily on detainee declarations as the factual basis for his opinions. See Dkt. No. 73-10 at 21 (“In order to assess the adequacy of the COVID-19 response inside the Folkston Detention Center, I relied on the affidavits of people currently detained at the detention center.”). As mentioned above, however, there are several aspects of the detainees’ declarations that call into question whether they accurately characterize conditions at the Folkston Facility.
Furthermore, even to the extent that Dr. Venters’ is working with accurate facts, his declarations opine on an ideal response to Coronavirus, rather than a constitutionally adequate one. Indeed, much of his focus is on whether ICE and the Folkston Facility are complying with CDC Guidance. See e.g., Dkt. No. 41-3 at 7 (critiquing ICE for mandating only one daily check for symptomatic or quarantined individuals as opposed to the two checks recommended by the CDC); see also Dkt. No. 73-10 (identifying questions assessed as part of the opinion analysis, two of which center on whether practices conform to CDC guidelines). CDC Guidance, however, does not define the standard for constitutional adequacy. See Swain v. Junior, No. 20-cv-11622, 2020 WL 3167628, at *8 (11th Cir. June 15, 2020) (finding that CDC Guidance was “not determinative” in addressing the question of whether civil detainees were offered constitutionally sufficient protection
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against COVDID-19). Nor is the standard perfection. See Matos v. Vega, No. 20-CIV-60784, 2020 WL 2298775, at *10 (S.D. Fla. May 6, 2020) (finding that inherent shortcomings in a detention facility’s ability to contain a communicable disease “do not automatically translate into a constitutional violation.”)
Ultimately, decisions about whether a restriction or condition is merited are “peculiarly within the province and professional expertise of corrections officials.” Bell, 99 S. Ct. at 1875 n. 23. “In the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Id. Therefore, the Court finds that neither the detainees’ declarations nor Dr. Venters’ declarations are sufficient to merit the conclusion that Petitioners’ are likely to prevail on the claim that their conditions of confinement constitute punishment.
Petitioners point to other miscellaneous pieces of evidence to suggest that conditions at the Folkston Facility are not adequate to protect them from COVID-19. However, much—if not all— of this evidence is again speculative or extrapolates facilitywide deficiencies from limited data. For example, Petitioners contend that out of 330 screening forms for new detainees arriving at the facility, only two were flagged as COVID-19 risks. See Dkt. No. 81 at 2. They argue that this “calls into question the
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reliability and effectiveness of the screening forms.” Id.
Petitioners do not offer any statistics or data to suggest that
this number is an error, much less that the number is so
inconsistent with existing data as to call for preliminary relief.9
Petitioners also piece together data on detainee intakes and
facility cohorts from May 20 to June 1 to conclude that there were
twenty-eight intakes who were not placed in cohorts for fourteen
days in accordance with CDC Guidance. See Dkt. No. 81 at 4-5
(citing Dkt. No. 73-2 at 66-70, 89). As Respondents point out,
however, the cohort data on which Petitioners rely is from June 3,
which is 14 days beyond the intake date of the six detainees
entering the facility on May 20.10 Therefore, while there is some
9 Petitioners also seem to have combed through hundreds of pages of screening forms in search of any aberrations that would suggest problems with the Folkston Facility’s intake process. They then deduce from any errors they find that there are gross deficiencies in Folkston’s screening measures. See, e.g., Dkt. No. 81 at 3 (identifying isolated documentation defects as an indication that the Folkston Facility “fails to implement infection containment measures for new intakes who are documented as presenting risk factors for COVID infection”); see id. at 2 (indicating that a discrepancy in the number of screening forms versus the number of intakes “calls into question the reliability and effectiveness of the screening forms”). Even assuming Petitioners are painting an accurate picture of the facts—which Respondents call into doubt in their supplemental briefing—errors or oversights in the screening process are not dispositive in resolving the question of whether Petitioners have been deprived of constitutionally adequate protection. Nor is it surprising that there may be some hiccups in the screening process as facility personnel respond to new and evolving circumstances. Ultimately, Petitioners may be able to convince a jury that these problems amount to more than inadvertent oversights. However, in light of the evidence before the Court at this stage, the Court cannot find that Petitioners are entitled to preliminary relief. 10 Respondents also conclude that by June 3 the mandatory cohort period would have also expired for the fifteen detainees who entered the Folkston Facility on May 21. Dkt. No. 86 at 10. Whether this is true depends partly on when Respondents begin to run the fourteen-day clock on detainees entering the facility. Nevertheless, it is sufficient to state here that the discrepancy between detainee intakes and detainees in cohort is less significant than what was cited by Petitioners.
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discrepancy between intakes and cohorts, it is not as large as Petitioners allege. Furthermore, the remaining discrepancy could be explained by the large number of outgoing transfers between May 20 and June 1. See Dkt. No. 73-2 at 80-88. Indeed, many—if not all—of the detainees brought into the facility between those dates could have also gone out between those dates as well.11
Petitioners also invest much ink protesting the number of transfers into the Folkston Facility despite what they characterize as CDC Guidance advising against transferring detainees unnecessarily. Petitioners argue that Respondents have “not presented evidence that they have made any attempts to limit or restrict transfers in a meaningful way.” Dkt. No. 81 at 6 (emphasis in original). However, it is not Respondents’ burden—at least at this stage—to do so. Furthermore, as Respondents point out, Petitioners offer no point of reference for determining whether total transfers are lower than their pre-pandemic numbers. To the contrary, Petitioners’ analysis of the Folkston Facility’s population and transfer data appears to show that from late April 2020 to early June 2020, outgoing detainees from the Folkston Facility exceed incoming detainees and the overall population of
11 Petitioners also complain that the Folkston Facility allows new intakes to join ongoing cohorts, which they contend infringes on CDC Guidance. Dkt. No. 81 at 5. In support, they rely on deposition testimony from Ronald Warren, the Folkston Facility Administrator. Id. (citing Dkt. No. 81-2 at 12). However, Warren testified only that this practice was “a possibility” and suggested that the number of pods available for cohorts was sufficient so as not to necessitate the practice at that time. See Dkt. No. 81-2 at 12.
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the facility decreased. Dkt. Nos. 87-7, 87-8.12 Further, Petitioners fail to show, even if Respondents did not reduce incoming transfers, that those transfers were not “necessary” under CDC Guidance. In fact, Petitioners seemingly concede Respondents’ position that about half of incoming transfers from late April to early June were “new arrests” that Respondents lacked discretion to decline. See DKt. No. 81 at 6. Petitioners do not offer any evidence concerning whether the remaining transfers were necessary. Instead, they rely on detainee declarations for the proposition that new people were being brought into the facility. See Dkt. No. 81 at 5. This is not sufficient to show that incoming transfers violated CDC Guidance, much less that they lacked a legitimate governmental purpose.
Petitioners argue that Respondents have failed to conform to CDC Guidance concerning social distancing because of the high population densities in the Folkston Facility generally and in the housing units specifically. Much of the parties’ debate on this topic concerns the accuracy of representations made by Respondents concerning the percentage of the facility’s capacity that has been filled. Regardless of this dispute, Petitioners concede that no individual unit is actually filled to capacity and that nearly half of them are at less than fifty percent full. See Dkt. No. 81-
12 Though CDC Guidance advises against unnecessary transfers generally, incoming transfers are the only ones that are alleged to pose a risk to Petitioners.
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5 at 2. Petitioners, however, point to a particular unit that is at almost eighty-five percent capacity and allege that to maintain the recommended six feet of separation, detainees in that unit would “have to stand practically perfectly still.” Dkt. No. 81 at 8. Respondents counter that space in the facility has been allocated to prioritize the availability of intake cohort units. Dkt. No. 86 at 11. Petitioners’ chart depicting the percentage capacity of units substantiates this contention, showing that no intake cohort or quarantine unit is more than thirty-four percent full. See Dkt. No. 81-5 at 2.13 Accordingly, the Court finds that the evidence as it stands now fails to show that the Respondents’ allocation of space lacks a legitimate purpose or was otherwise constitutionally inadequate.
Finally, Petitioners argue that Respondents have not adequately tested the detained population at the Folkston Facility. Dkt. No. 81 at 10. Specifically, they complain that from April 20 to June 2, only six individuals at the facility have been tested. See Dkt. No. 81 (citing Dkt. No. 73 at 53-54). However,
13 Petitioners contend that regardless of the capacity of the individual quarters, “detainees must still share common areas such as showers and tables and communication devices . . . thereby preventing detainees from socially distancing.” Dkt. No. 86 at 9. However, Petitioners are merely describing conditions intrinsic to a detention facility generally, rather than some punitive measure imposed by the Folkston Facility. As explained above, the question before the Court is not whether Respondents may detain Petitioners but whether the conditions of their detention amount to punishment. See Bell, 441 U.S. at 533. Respondents cannot infringe on a detainee’s constitutional rights by failing to do the impossible. See Swain, 2020 WL 3167628, at *7.
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Petitioners offer little explanation as to why six tests performed over roughly one and one-half months is so grossly inadequate as to amount to unconstitutional punishment. As Respondents point out, these six tests do not necessarily represent the universe of testing completed by the Folkston Facility during the coronavirus pandemic, but rather the number of tests performed during that relatively narrow window of time.
Petitioners also offer little evidence about specific testing that the Folkston Facility failed to perform. Petitioners rely primarily on statements by detainees who allegedly observed people with “symptoms” that are not being tested. For example, one detainee said that he “observed detainees coughing” and that they were not quarantined or tested. Dkt. No. 37-5 at 4-5. Another stated that they “cough and [their] bones ache” but are not given medical attention. DKt. No. 71-3 at 3. Admittedly, some of the symptoms described by detainees are less innocuous, such as breathing issues. See, e.g. Dkt. No. 71-2 at 3. However, even in these cases, descriptions tend to be exceedingly vague and do not necessarily substantiate that testing was merited, at least without more context. See, e.g., Dkt. No. 71-3 at 3 (“I think I have the covid-19 virus because I am struggling to breathe.”). The Court simply cannot find that Respondents are undertesting at the Folkston Facility because they do not perform a test on every detainee who coughs. Nor can the Court find that the constitution
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compels Respondents to test every detainee who subjectively perceives themselves to have symptoms. See Bell, 99 S. Ct. at 1875 n.23 (finding that courts should defer to the judgment of corrections officials absent “substantial evidence” that those officials are misrepresenting the need to respond in the way that they do). Rather, facility officials must exercise reasonable discretion in implementing testing procedures such that those procedures do not lack a legitimate purpose.
B. Deliberate Indifference Next, Petitioners contend that Respondents have infringed on
their due process rights by acting with deliberate indifference to a serious medical need. As a threshold matter, the Court must determine the appropriate standard for assessing a deliberate indifference claim under the Fifth Amendment. Under the Eighth Amendment, a deliberate indifference claim includes both an objective and subjective component:
First, the inmate must establish ‘an objectively serious medical need’—that is, ‘one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention’—that, ‘if left unattended, poses a substantial risk of serious harm’. . . Second, the inmate must prove that prison officials acted with deliberate indifference to that need by showing (1) that they had ‘subjective knowledge of a risk of serious harm’ and (2) that the ‘disregard[ed]’ that risk (3) by conduct that was ‘more than mere negligence.’
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Keyohane v. Florida Department of Corrections Secretary, 952 F.3d 1257, 1266 (11th Cir .2020) (quoting Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004).
Petitioners argue that civil detainees “should not have to satisfy the Eighth Amendment’s requirement that a prison official have subjective knowledge of a substantial risk in order to establish a Fifth Amendment violation.” Dkt. No. 41-1 at 22 n.34. They allege that while the “Eleventh Circuit has not squarely addressed this issue,” two other circuits have reached this finding. Id. (citing Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) and Darnell v. Pineiro, 849 F.3d 17, 3236 (2d Cir. 2017)). Petitioners’ characterization is not entirely accurate. In at least one unpublished opinion, the Eleventh Circuit has expressly held that “[t]he standard for providing basic human needs to those incarcerated or in detention is the same under both the Eighth Amendment and the Fifth Amendment’s Due Process Clause.” Daniel v. U.S. Marshall Service, 188 Fed. App’x 954, (11th Cir. 2006) (961-62) (citing Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000). Moreover, the Eleventh Circuit has also held in multiple published opinions that deliberate indifference claims under the Fourteenth and Eighth Amendments are analyzed under the same standard. See Taylor v. Adams, 221 F.3d 1254, 1257 n.3 (11th Cir. 2000); see also Marsh v. Butler County, Ala., 268 F.3d 1014, 1024 n.5 (11th Cir. 2001) (“We accept our precedents treating the
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[Eighth and Fourteenth] Amendments as the same in the context of incarceration.”) (abrogated on other grounds in Bell Atlantic Corporation v. Twombly, 127 S. Ct. 1995 (2007)). The Court sees no reason to depart from the clear trend in this circuit to analyze deliberate indifference claims the same regardless of whether the claim is raised by pre or post-trial detainees.14
Therefore, having determined that Fifth Amendment deliberate indifference claims are assessed under the same standard as their Eighth Amendment counterparts, the Court must assess whether Petitioners have demonstrated a substantial likelihood of success in satisfying that standard. The Court finds that they have not. First, the Court finds that Respondents have not disregarded a risk of harm to Petitioners because, for the reasons discussed above, the evidence at this stage does not establish that conditions at the Folkston Facility are deficient in the manner described by Petitioners. Respondents’ evidence suggests that they are taking ample measures to protect detainees from the spread of COVID-19, including screening and intake procedures, enhanced
14 The only circuit court cases that Petitioners cite on this topic both stand for the proposition that the Eighth and Fourteenth Amendments rely on different standards for assessing deliberate indifference claims, see Gordon, 888 F.3d 1118 at 1124 (“[W]e hold that claims for violations of the right to adequate medical care brought by pretrial detainees against individual defendants under the Fourteenth Amendment must be evaluated under an objective deliberate indifference standard.”) (quotation and citation omitted); see also Darnell v. Pineiro, 849 F.3d 17, 35 (finding that the subjective prong of a deliberate indifference claim is “defined objectively” under the Fourteenth Amendment), a proposition that—as discussed above—has been rejected by binding precedent in this circuit.
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cleaning regimens, social distancing policies, and efforts to educate detainees on COVID-19 prevention. As explained, the mere fact that Petitioners have offered a conflicting version of facts does not necessarily entitle them to relief.
Moreover, even to the extent Petitioners have identified more protective measures that the Folkston Facility could adopt, Respondents’ decision not to implement those measures does not necessarily render them indifferent to Petitioners’ medical needs. Indeed, the Fifth Amendment “doesn’t require that the medical care provided . . . be ‘perfect, the best obtainable, or even very good.’” Keohane v. Florida Dep’t of Corr. Secretary, 952 F.3d 1257, 1266 (11th Cir. 2020) (quoting Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991)). Instead, medical treatment—or lack thereof—constitutes deliberate indifference “only when it is so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Id. Though Petitioners assert that more should be done, “a simple difference in medical opinion between the prison’s medical staff and the inmate as to the . . . course of treatment” is not sufficient to support a claim for deliberate indifference. Keohane, 952 F.3d at 1266. Here, Respondents’ medical decisions and general treatment of Petitioners with respect to COVID-19 does not rise to the high threshold necessary to show deliberate
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indifference, at least not as it concerns the standard necessary on a motion for a preliminary injunction.
C. Accardi Doctrine Finally, Petitioners contend that Respondents violated their
constitutional rights under the Accardi doctrine because despite the PBNDS requiring ICE to conform to directives from the CDC, Respondents have failed to bring the Folkston Facility in compliance with CDC Guidance. It is well-settled that administrative agencies must “comply with the procedural requirements imposed by statute.” Romano-Murphy v. C.I.R., 816 F.3d 707, 720 (11th Cir. 2016) (quoting Gonzalez v. Reno, 212 F.3d 1338, 1349 (11th Cir. 2000)). However, in Accardi, the Supreme Court extended this principal, finding that agencies must also comply with their own internal regulations. See 347 U.S. 260, 26667.
In Accardi, the petitioner, a deportable immigrant, filed a habeas petition after the Board of Immigration Appeals (the “Board”) declined to suspend his deportation. See id. at 262-64. The petitioner argued that prior to the Board’s decision, the Attorney General circulated a list of “unsavory characters” that included the petitioner’s name. Id. at 262. This, according to the Petitioner, had prejudiced the Board, which pursuant to agency regulations, was supposed to rely on its independent judgment in making its determination. Id. at 262, 266. The Supreme Court
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agreed, finding that so long as such regulations were in place, “the Attorney General denies himself the right to sidestep the Board or dictate its decision in any manner.” Id. at 267.
Since its inception, the scope of Accardi has proven to be elusive. Early cases suggested that the doctrine was derived from the due process clause and implicated only where an agency deprived someone of a procedural right. See Bridges v. Wixon, 326 U.S. 135, 153 (1945) (finding that an agency’s obligation to follow its own rules is designed to safeguard against “essentially unfair procedures.”)15; see also Accardi,347 U.S. at 265-66 (finding that an agency may not deny someone of a procedural right guaranteed to them by its own regulations). However, later decisions suggested that Accardi claims might emanate from somewhere else, such as the Administrative Procedure Act (the “APA”). See United States v. Caceres, 440 U.S. 741, 752 (rejecting an Accardi-like claim, in part, because it was not a case “in which the Due Process Clause is implicated because an individual has reasonably relied on agency regulations promulgated for his guidance or benefit.”); see also Vitarelli v. Seaton, 359 U.S. 535, 547 (1959) (describing the Accardi doctrine as a “judicially evolved rule of administrative law.”) (Frankfurter, J. concurring); see also Aerial Banners, Inc.
15 Though Bridges predates Accardi, it articulates a similar principal and can be seen as a precursor to the doctrine itself. See Thomas W. Merrill, The Accardi Principle, 74 Geo. Wash. L. Rev. 569, 574 (2006) (describing Bridges as a pre-Accardi case that contributed to the development of the Accardi doctrine).
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v. F.A.A., 547 F.3d 1257, 1260 (11th Cir. 2008) (“An agency may also act arbitrarily and capriciously by failing to follow its own regulations and procedures.”). At least one scholar postulates that Accardi may have dual purposes, “one grounded in due process, the other in the APA.” See Thomas W. Merrill, The Accardi Principle, 74 Geo. Wash. L. Rev. 569, 581 (2006) (citing United States v. Caceres, 440 U.S. 741 (1979)).
Fortunately, the Court need not wade into this murky debate. As explained above, the evidence presented by both parties shows that there are factual disputes concerning whether Respondents violated CDC Guidance, but it does not resolve the issue clearly in favor of Petitioners. The evidence arguably suggests technical, inadvertent violations of CDC Guidance, such as mistakes on screening forms. However, even to the extent Accardi has constitutional implications—on which Petitioners rely here—they are not implicated where agency violations are, at worst, technical or de minimis. See First Alabama Bank, N.A. v. U.S., 981 F.2d 1226, 1230 n.5 (11th Cir. 1993) (finding that courts may force agencies to follow internal regulations where they would affect “substantive” individual rights). Indeed, this Court simply cannot find that every administrative oversight by an administrative agency gives rise to a constitutional claim under Accardi.
Moreover, CDC Guidance itself suggests that it was not intended to be followed with rigid precision. In bold letters on
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the first page, it states, “The Guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions.” See CDC Guidance at 1. This principal is reiterated throughout the document. See id. at 2 (“Where relevant, community-focused guidance documents are referenced in this document and should be monitored regularly for updates, but they may require adaptation for correctional and detention settings.”); see id. at 3 (“At this time, different facility types . . . and sizes are not differentiated. Administrators and agencies should adapt these guiding principles to the specific needs of their facility.”); id. at 23 (“Some of the specific language may not apply directly to healthcare settings within correctional facilities and detention centers, or to facilities without onsite healthcare capacity, and may need to be adapted to reflect operations and custody needs.”). That Respondents’ transfer policies, quarantine procedures, or other protective measures might not conform absolutely with CDC Guidance is not a basis to conclude that it violates that guidance. Ultimately, the evidence at this stage suggests that Respondents are making reasonable efforts to comply with CDC Guidance and reduce risks that detainees are exposed to COVID-19.
For these reasons, the Court cannot find that Petitioners are likely to succeed on a constitutional claim, whether under Accardi or otherwise. This decision is not meant to suggest that the
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evidence, especially after it is more fully developed, could be found by a jury to be sufficient to establish a constitutional violation. Nor is the Court’s decision here meant to be a finding on any of Respondents’ arguments in its pending Motion to Dismiss. Rather, the Court finds only that at this stage, and under Petitioners’ burden, the evidence before the Court is not adequate to merit injunctive relief.
CONCLUSION For the reasons above, Petitioners second Motion for a Preliminary Injunction and Emergency Writ of Habeas Corpus is DENIED. Respondents’ evidentiary objections raised at the hearing are OVERRULED as moot insofar as they concern the Petitioners’ motion for preliminary relief. Such objections may be re-urged, if relevant, in a subsequent motion in limine.
SO ORDERED, this 8th day of July, 2020.
_ HON. LISA GODBEY WOOD, JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA
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 Case 5:20-cv-00046-LGW-BWC Document 90 Filed 07/13/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

FILED John E. Triplett, Acting Clerk United States District Court
By CAsbell at 3:14 pm, Jul 13, 2020

JENNER BENAVIDES, et al., Petitioners/Plaintiffs,
v. PATRICK GARTLAND, et al.,
Respondents/Defendants.

CIVIL ACTION NO.: 5:20-cv-46

ORDER Presently before the Court is Respondents’ Motion to Stay Discovery. Doc. 48. Respondents assert they have filed a motion to dismiss which challenges the adequacy of the allegations contained in the Amended Petition and seeks dismissal of the Amended Petition in its entirety. Id. at 1. Thus, Respondents seek a stay in the discovery obligations in this case—aside from the matters subject to the Court’s ruling on Petitioners’ motion for expedited discovery— pending resolution of their motion to dismiss. Id. Petitioners oppose Respondents’ Motion. Doc. 62. Respondents field a Reply in support of their Motion to Stay. Doc. 84. Discovery stays are disfavored and “[g]enerally, a stay should be granted only where the motion to dismiss appears, upon preliminary review, ‘to be clearly meritorious and truly case dispositive,’ rendering discovery a mere futile exercise.” S. Motors Chevrolet, Inc. v. Gen. Motors, LLC, No. CV 414-152, 2014 WL5644089, at *1 (S.D. Ga. Nov. 4, 2014) (quoting Feldman v. Flood, 176 F.R.D. 651, 652–53 (M.D. Fla. 1997)). Courts routinely take a “preliminary peek” at the dispositive motion to judge its merits before ruling on a motion to stay discovery. Id. Here, the Court’s preliminary peek at Respondents’ motion to dismiss reveals

Case 5:20-cv-00046-LGW-BWC Document 90 Filed 07/13/20 Page 2 of 2 that Respondents raise nonfrivolous facial challenges to the sufficiency of Petitioners’ claims and, if the motion to dismiss is granted, this case will be significantly curtailed or dismissed in its entirety. Doc. 47. Accordingly, upon review and for good cause shown, the Court GRANTS Respondents’ Motion and STAYS the parties’ discovery deadlines in this case. Should this case remain pending after the resolution of Respondents’ motion to dismiss, this stay will be automatically lifted, and the parties shall fulfill their Rule 26 discovery obligations.
SO ORDERED, this 13th day of July, 2020.
____________________________________ BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA
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 Case 5:20-cv-00046-LGW-BWC Document 101 Filed 11/18/20 Page 1 of 1
FILED John E. Triplett, Acting Clerk United States District Court
By MGarcia at 11:13 am, Nov 18, 2020