U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:19-cv-03185-RDM

COSTA et al v. BAZRON et al Assigned to: Judge Randolph D. Moss Case in other court: USCA, 20-07055 Cause: 42:1983 Civil Rights Act

Date Filed: 10/23/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff ENZO COSTA

represented by John Arak Freedman ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave, NW Washington, DC 20001 (202) 942-5316 Fax: (202) 942-5999 Email: john.freedman@arnoldporter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret Hart WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS 700 14th Street, NW Suite 400 Washington, DC 20005 202-319-1000 Email: margaret_hart@washlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tirzah S. Lollar Arnold & Porter Kaye Scholer LLP 601 Massachusetts Ave., NW Washington, DC 20001 202-942-6199 Email: tirzah.lollar@arnoldporter.com LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Kaitlin Rose Banner WASH.LAWYERS' CMTE FOR CIVIL RIGHTS & URB.AFFAIRS 700 14th Street NW Ste Fourth Floor Washington, DC 20005 202-319-1000 Email: kaitlin_banner@washlaw.org ATTORNEY TO BE NOTICED
Michael Krevans Perloff AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF THE DISTRICT OF 915 15th Street NW 2nd Floor Washington, DC 20005 202-601-4278 Email: mperloff@acludc.org ATTORNEY TO BE NOTICED
Scott Michelman AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street, NW 2nd Floor Washington, DC 20005 (202) 457-0800 Fax: (202) 457-0805 Email: smichelman@acludc.org ATTORNEY TO BE NOTICED
Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street NW Ste 2nd Floor Washington, DC 20005 202-601-4266 Fax: 202-457-0805 Email: artspitzer@gmail.com ATTORNEY TO BE NOTICED

Plaintiff VINITA SMITH
Plaintiff WILLIAM DUNBAR

represented by John Arak Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret Hart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tirzah S. Lollar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Rose Banner (See above for address) ATTORNEY TO BE NOTICED
Michael Krevans Perloff (See above for address) ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
represented by John Arak Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret Hart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tirzah S. Lollar (See above for address)

Plaintiff
STEFON KIRKPATRICK on behalf of themselves and all persons similarly situated TERMINATED: 04/22/2020

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Rose Banner (See above for address) ATTORNEY TO BE NOTICED
Michael Krevans Perloff (See above for address) ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
represented by John Arak Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret Hart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tirzah S. Lollar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Rose Banner (See above for address) ATTORNEY TO BE NOTICED
Michael Krevans Perloff (See above for address) ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) ATTORNEY TO BE NOTICED

Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
BARBARA J. BAZRON Director, Department of Behavioral Health, in her individual capacity

represented by Micah Ian Bluming OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 400 6th Street NW Suite 10100 Washington, DC 20001 (202) 724-7272 Fax: (202) 730-1833 Email: micah.bluming@dc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gavin Noyes Palmer OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 400 6th Street NW Washington, DC 20001 202-805-7440 Email: gavin.palmer@dc.gov ATTORNEY TO BE NOTICED
Honey C. Morton OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 400 Sixth Street, NW Suite 10100 20001 Washington, DC 20001 202-724-6591 Email: honey.morton@dc.gov ATTORNEY TO BE NOTICED
Robert A. DeBerardinis , Jr. OFFICE OF THE ATTORNEY

Defendant MARK J. CHASTANG Chief Executive Officer, Saint Elizabeths Hospital, in his individual capacity
Defendant DISTRICT OF COLUMBIA
Amicus

GENERAL/DC 400 6th Street, NW Washington, DC 20001 202-724-6642 Fax: 202-741-8895 Email: robert.deberardinis@dc.gov ATTORNEY TO BE NOTICED
represented by Micah Ian Bluming (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gavin Noyes Palmer (See above for address) ATTORNEY TO BE NOTICED
Honey C. Morton (See above for address) ATTORNEY TO BE NOTICED
Robert A. DeBerardinis , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Micah Ian Bluming (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gavin Noyes Palmer (See above for address) ATTORNEY TO BE NOTICED
Honey C. Morton (See above for address) ATTORNEY TO BE NOTICED
Robert A. DeBerardinis , Jr. (See above for address) ATTORNEY TO BE NOTICED

RONALD WALDMAN Dr.
Amicus JOAN HEBDEN
Amicus PATRICK CANAVAN Dr.

Date Filed 10/23/2019
10/25/2019 10/25/2019 10/25/2019 10/25/2019
10/30/2019 10/30/2019

# Docket Text

COMPLAINT against BARBARA J. BAZRON, MARK J.

1

CHASTANG, DISTRICT OF COLUMBIA ( Filing fee $ 400

receipt number ADCDC-6474930) filed by STEFON

KIRKPATRICK, ENZO COSTA, WILLIAM DUNBAR, VINITA

SMITH. (Attachments: # 1 Civil Cover Sheet, # 2 Summons,

# 3 Summons, # 4 Summons, # 5 Summons)(Spitzer, Arthur)

(Entered: 10/23/2019)

2 NOTICE of Appearance by John Arak Freedman on behalf of All Plaintiffs (Freedman, John) (Entered: 10/25/2019)

3 Amended NOTICE of Appearance by John Arak Freedman on behalf of All Plaintiffs (Freedman, John) (Entered: 10/25/2019)

4 NOTICE of Appearance by Tirzah S. Lollar on behalf of ENZO COSTA, WILLIAM DUNBAR, STEFON KIRKPATRICK, VINITA SMITH (Lollar, Tirzah) (Entered: 10/25/2019)

5 CIVIL COVER SHEET signed (corrected) by STEFON KIRKPATRICK, ENZO COSTA, WILLIAM DUNBAR, VINITA

SMITH re 1 Complaint, filed by STEFON KIRKPATRICK, ENZO COSTA, WILLIAM DUNBAR, VINITA SMITH. Related

document: 1 Complaint, filed by ENZO COSTA, STEFON KIRKPATRICK, WILLIAM DUNBAR, VINITA SMITH.(Spitzer, Arthur) (Entered: 10/25/2019)

Case assigned to Judge Christopher R. Cooper. (zmc) (Entered: 10/30/2019)

6 SUMMONS (4) Issued Electronically as to BARBARA J. BAZRON, MARK J. CHASTANG, District of Columbia Attorney

10/30/2019 10/31/2019 10/31/2019 11/05/2019
11/05/2019
11/06/2019 11/07/2019 11/07/2019

General, and the District of Columbia Mayor. (Attachment: # 1 Notice and Consent)(zmc) (Entered: 10/30/2019)

7 Case randomly reassigned to Judge Randolph D. Moss. Judge Christopher R. Cooper is no longer assigned to the case. (ztnr) (Entered: 10/31/2019)

8 NOTICE of Appearance by Scott Michelman on behalf of All Plaintiffs (Michelman, Scott) (Entered: 10/31/2019)

STANDING ORDER: The parties are hereby ORDERED to

9

comply with the directives set forth in the attached Standing

Order. See document for details. Signed by Judge Randolph D.

Moss on 10/31/19. (lcrdm2, ) (Entered: 10/31/2019)

WITHDRAWN PURSUANT TO DOCKET ENTRY NO. 22 . . . .

10

. Emergency MOTION to Take Deposition from 30(b)(6) Witness

and Leave to Conduct Expedited Discovery by WILLIAM

DUNBAR, STEFON KIRKPATRICK, VINITA SMITH

(Attachments: # 1 Text of Proposed Order)(Freedman, John)

Modified on 12/18/2019 (ztd). (Entered: 11/05/2019)

MINUTE ORDER: In light of Plaintiffs' Emergency Motion to Take Deposition, Dkt. 10, Plaintiffs are hereby ORDERED to confer with Defendants and, together with Defendants, jointly contact the Courtroom Deputy Clerk at or before 3:00 p.m. on November 6, 2019, to identify a day and time the parties are available for a hearing on Plaintiffs' motion. Signed by Judge Randolph D. Moss on 11/04/2019. (lcrdm2, ) Modified on 11/6/2019 to correct clerk title(kt). (Entered: 11/05/2019)

11 NOTICE of Appearance by Micah Ian Bluming on behalf of All Defendants (Bluming, Micah) (Entered: 11/06/2019)

12 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the District of Columbia Attorney General. Date of Service Upon District of Columbia Attorney General 11/4/2019. Answer due for ALL D.C. DEFENDANTS by 11/25/2019. (Freedman, John) (Entered: 11/07/2019)

13 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on the Mayor of the District of Columbia. Date of Service Upon the Mayor for the District of Columbia on 11/4/2019. (Freedman, John) (Entered: 11/07/2019)

11/07/2019 11/07/2019 11/12/2019
11/19/2019 11/19/2019 11/20/2019 11/20/2019
11/22/2019

14 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. BARBARA J. BAZRON served on 11/4/2019 (Freedman, John) (Entered: 11/07/2019)

15 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. MARK J. CHASTANG served on 11/4/2019 (Freedman, John) (Entered: 11/07/2019)

MINUTE ORDER: The parties are hereby ORDERED to appear for a hearing on Plaintiffs' Emergency Motion to Take Deposition, Dkt. 10, on November 21, 2019, at 10:00 a.m. in Courtroom 21. It is further ORDERED that the parties shall file a joint status report on or before November 19, 2019 apprising the Court whether the parties have conferred on the motion, and, if so, whether they have narrowed the issues in dispute with respect to it. Signed by Judge Randolph D. Moss on 11/12/2019. (lcrdm2, ) (Entered: 11/12/2019)

16 NOTICE of Appearance by Kaitlin Rose Banner on behalf of All Plaintiffs (Banner, Kaitlin) (Entered: 11/19/2019)

17 Joint STATUS REPORT by ENZO COSTA, WILLIAM DUNBAR, STEFON KIRKPATRICK, VINITA SMITH. (Banner, Kaitlin) (Entered: 11/19/2019)

18 MOTION for Extension of Time to Respond to Complaint by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 11/20/2019)

MINUTE ORDER: In light of the parties' joint status report, Dkt. 17, the hearing currently set for November 21, 2019 is hereby VACATED. It is further ORDERED that the parties shall file a joint status report on or before December 3, 2019 apprising the Court on the status of the dispute regarding Plaintiffs' November 5, 2019 Emergency Motion for Leave to Conduct Limited Expedited Discovery ("Pending Motion"), Dkt. 10. It is further ORDERED that the Court shall hold the Pending Motion, including Defendants' obligation to oppose, in ABEYANCE. Signed by Judge Randolph D. Moss on 11/20/2019. (lcrdm2, ) (Entered: 11/20/2019)

RESPONSE re 18 MOTION for Extension of Time to Respond to

19

Complaint filed by ENZO COSTA, WILLIAM DUNBAR,

STEFON KIRKPATRICK, VINITA SMITH. (Banner, Kaitlin)

(Entered: 11/22/2019)

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12/03/2019 12/03/2019 12/16/2019 12/17/2019 12/20/2019 12/20/2019 12/26/2019

MINUTE ORDER: Upon consideration of Defendants' motion for extension, Dkt. 18 , and Plaintiffs' opposition, Dkt. 19, it is hereby ORDERED that Defendants' motion is GRANTED in part and DENIED in part. Defendant shall file a responsive pleading or motion on the pleadings on or before December 16, 2019. Signed by Judge Randolph D. Moss on 11/22/2019. (lcrdm2, ) (Entered: 11/22/2019)

Joint STATUS REPORT re: Emergency Motion for Leave to

20

Conduct Limited Expedited Discovery by ENZO COSTA,

WILLIAM DUNBAR, STEFON KIRKPATRICK, VINITA

SMITH. (Banner, Kaitlin) (Entered: 12/03/2019)

NOTICE OF ERROR re 20 Status Report; emailed to kaitlin_banner@washlaw.org, cc'd 11 associated attorneys -- The PDF file you docketed contained errors: 1. On future filings, please make sure your signature is on the signature line of you document(s). (ztd, ) (Entered: 12/03/2019)

21 MOTION to Dismiss Plaintiffs' Complaint by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support of Defendants' Motion To Dismiss, # 2 Exhibit A (Declaration of K. Singh Taneja), # 3 Text of Proposed Order)(Bluming, Micah) (Entered: 12/16/2019)

22 WITHDRAWAL of Motion by ENZO COSTA, WILLIAM DUNBAR, STEFON KIRKPATRICK, VINITA SMITH For Leave to Conduct Limited Expedited Discovery. (Banner, Kaitlin) (Entered: 12/17/2019)

MOTION for Discovery for Jurisdictional Discovery by ENZO

23

COSTA, WILLIAM DUNBAR, STEFON KIRKPATRICK,

VINITA SMITH (Banner, Kaitlin) (Entered: 12/20/2019)

NOTICE OF PROPOSED ORDER to Add Proposed Order on

24

Motion for Jurisdictional Discovery by ENZO COSTA,

WILLIAM DUNBAR, STEFON KIRKPATRICK, VINITA

SMITH (Banner, Kaitlin) Modified text on 12/23/2019 (ztd).

(Entered: 12/20/2019)

25 Consent MOTION for Extension of Time to File Response/Reply as to 21 MOTION to Dismiss Plaintiffs' Complaint by ENZO COSTA, WILLIAM DUNBAR, STEFON KIRKPATRICK, VINITA SMITH (Attachments: # 1 Text of Proposed Order)(Freedman, John) (Entered: 12/26/2019)

12/27/2019 12/30/2019 01/03/2020 01/06/2020 01/07/2020 01/10/2020
01/10/2020

MINUTE ORDER: Upon consideration of Plaintiffs' unopposed motion to extend, Dkt. 25, it is hereby ORDERED that the motion is GRANTED. Plaintiffs shall file their opposition to Defendants' motion to dismiss, Dkt. 21, on or before January 13, 2020, unless otherwise directed by further order of the Court. Signed by Judge Randolph D. Moss on 12/27/2019. (lcrdm2, ) (Entered: 12/27/2019)
26 NOTICE of Appearance by Honey C. Morton on behalf of All Defendants (Morton, Honey) (Entered: 12/30/2019)
27 Memorandum in opposition to re 23 MOTION for Discovery for Jurisdictional Discovery filed by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Bluming, Micah) (Entered: 01/03/2020)
MINUTE ORDER: Upon consideration of the Plaintiffs' motion for leave to conduct jurisdictional discovery, Dkt. 23, the Court has determined that a motions hearing is appropriate. It is hereby ORDERED that the parties shall appear for a motions hearing on January 22, 2020, at 2:00p.m., in Courtroom 21. Signed by Judge Randolph D. Moss on 01/06/2020. (lcrdm2, ) (Entered: 01/06/2020)
28 Consent MOTION for Extension of Time to File Response/Reply as to 21 MOTION to Dismiss Plaintiffs' Complaint by ENZO COSTA, WILLIAM DUNBAR, STEFON KIRKPATRICK, VINITA SMITH (Attachments: # 1 Text of Proposed Order)(Banner, Kaitlin) (Entered: 01/07/2020)
MINUTE ORDER: Upon consideration of Plaintiffs' unopposed motion for extension, Dkt. 28, it is hereby ORDERED that the motion is GRANTED. Plaintiffs response to Defendants' motion to dismiss, Dkt. 21, shall be due fourteen days after (i) Defendants complete jurisdictional discovery production, or (ii) the Court denies Plaintiff' motion for jurisdictional discovery, Dkt. 23. Signed by Judge Randolph D. Moss on 01/10/2020. (lcrdm2, ) (Entered: 01/10/2020)
29 REPLY to opposition to motion re 23 MOTION for Discovery for Jurisdictional Discovery filed by ENZO COSTA, WILLIAM DUNBAR, STEFON KIRKPATRICK, VINITA SMITH. (Attachments: # 1 Exhibit Exhibit 1 - Testimony of Barbara J. Bazron)(Banner, Kaitlin) (Entered: 01/10/2020)

01/21/2020 01/22/2020
01/22/2020 01/22/2020 02/05/2020

30 MOTION to Certify Class by ENZO COSTA, WILLIAM DUNBAR, STEFON KIRKPATRICK, VINITA SMITH (Attachments: # 1 Text of Proposed Order)(Freedman, John) (Entered: 01/21/2020)

Minute Entry for proceedings held before Judge Randolph D.

Moss: Motion Hearing held on 1/22/2020 re: 23 MOTION for Discovery for Jurisdictional Discovery filed by ENZO COSTA, STEFON KIRKPATRICK, WILLIAM DUNBAR, VINITA SMITH. For the reasons stated on the record, the motion is GRANTED IN PART and DENIED IN PART; Discovery permitted as to items 1, 2, 4, 5, and 6 of Exhibit 1; As to item 8 of Exhibit 1, Plaintiffs' are allowed to serve a request for admission as outlined by the Court on the record. The Court will hold in abeyance Defendants' obligation to respond to Plaintiffs' pending 30 Motion to Certify Class. (Court Reporter: Jeff Hook.) (kt) (Entered: 01/22/2020)
31 Exhibit List by ENZO COSTA, WILLIAM DUNBAR, STEFON KIRKPATRICK, VINITA SMITH. (kt) (Entered: 01/22/2020)

PLAINTIFFS' EXHIBIT (Chart submitted in open court, in

32

support of Plaintiffs' Motion). "Let It Be Filed" by Judge Randolph

D. Moss. (kt) (Entered: 01/22/2020)

33 TRANSCRIPT OF MOTION HEARING before Judge Randolph D. Moss held on January 22, 2020. Page Numbers: 1 - 47. Date of Issuance: February 5, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter refer enced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

03/12/2020 03/13/2020 04/16/2020
04/16/2020
04/17/2020 04/17/2020 04/17/2020

Redaction Request due 2/26/2020. Redacted Transcript Deadline set for 3/7/2020. Release of Transcript Restriction set for 5/5/2020.(Hook, Jeff) (Entered: 02/05/2020)

Joint MOTION for Protective Order by BARBARA J. BAZRON,

34

MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming,

Micah) (Entered: 03/12/2020)

35 PROTECTIVE ORDER: It is hereby ORDERED that the parties shall comply with the terms of the stipulated Protective Order, which the Court adopts in full. See document for details. Signed by Judge Randolph D. Moss on 03/13/2020. (lcrdm2, ) (Entered: 03/13/2020)

Emergency MOTION for Hearing , MOTION for Leave to

36

File Amended Complaint by ENZO COSTA, WILLIAM

DUNBAR, STEFON KIRKPATRICK, VINITA SMITH

(Attachments: # 1 Exhibit Proposed Amended Complaint, # 2

Exhibit Redline of Proposed Amended Complaint, # 3

Text of Proposed Order)(Freedman, John) (Entered: 04/16/2020)

MINUTE ORDER: In light of Plaintiffs' motion for emergency hearing, Dkt. 36, it is hereby ORDERED that the parties shall appear telephonically for a status conference on April 17, 2020 at 12:00pm. The parties shall contact the Court's Deputy Clerk for logistical information concerning appearing telephonically. Signed by Judge Randolph D. Moss on 04/16/2020. (lcrdm2, ) (Entered: 04/16/2020)

Set/Reset Hearings: Telephonic Status Conference set for 4/17/2020 at 12:00 PM before Judge Randolph D. Moss. (kt) (Entered: 04/17/2020)

37 Joint MOTION to Reschedule Hearing by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Bluming, Micah) Modified event on 4/17/2020 (znmw). (Entered: 04/17/2020)

MINUTE ORDER: Upon consideration of the parties' joint motion to reschedule, Dkt. 37, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the status conference currently scheduled for today at noon is RESCHEDULED to April

04/17/2020 04/17/2020
04/18/2020
04/20/2020

17, 2020, at 2:00pm. Signed by Judge Randolph D. Moss on 04/17/2020. (lcrdm2, ) (Entered: 04/17/2020)
38 NOTICE of Appearance by Michael Krevans Perloff on behalf of All Plaintiffs (Perloff, Michael) (Entered: 04/17/2020)
Minute Entry for proceedings held before Judge Randolph D. Moss: Telephonic Status Conference held on 4/17/2020. All parties and the Court appeared via telephone. Plaintiffs shall file their Motion for Temporary Restraining Order by 12 noon on 4/18/2020; Defendants shall file their Response to Plaintiffs' Motion for Temporary Restraining Order by 4:00 PM on 4/21/2020, and their Opposition to Plaintiffs' Motion for Leave to File Amended Complaint by 10:00 AM on 4/21/2020. A Telephonic Motion Hearing is set for 4/22/2020, at 3:30 PM, before Judge Randolph D. Moss. The parties shall utilize the same conference call line and access code. (Court Reporter: Jeff hook.) (kt) (Entered: 04/17/2020)
39 MOTION for Temporary Restraining Order by ENZO COSTA, WILLIAM DUNBAR, VINITA SMITH (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1. Jones Declaration, # 3 Exhibit 2. Stern Declaration, # 4 Exhibit 3. Golob Declaration, # 5 Exhibit 4. Truettner Declaration, # 6 Exhibit 5. Costa Declaration, # 7 Exhibit 6. Dunbar Declaration, # 8 Exhibit 7. Smith Declaration, # 9 Exhibit 8. Guzman Declaration,
# 10 Exhibit 9. Rose Declaration, # 11 Exhibit 10. Mason Declaration, # 12 Exhibit 11. Donkar Declaration, # 13 Text of Proposed Order)(Freedman, John) (Entered: 04/18/2020)
MINUTE ORDER: In light of the upcoming motion hearing, Defendants are hereby ORDERED to file a notice on or before April 22, 2020, at 10:00 AM, containing the following information: the numbers of persons affiliated with St. Elizabeths Hospital who have been tested for COVID-19 and an anonymized break-down of those results by date of test, test results, housing unit, and status (e.g., resident or staff) and location (e.g., hospitalized, quarantined, general housing) of the person tested; whether all new residents and staff are tested and, if so, when that protocol took effect; and all relevant written procedures and practices concerning COVID-19, including the Emergency Preparedness Plan that was implemented on March 12, 2020. If any of this information could reveal personal medical information relating to an identifiable person, Defendants may file that information, but only that information, under seal. As the Court

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previously directed, Plaintiffs shall file its reply in support of its motion on or before April 22, 2020, at 12:00 PM. Signed by Judge Randolph D. Moss on 04/20/2020. (lcrdm2, ) (Entered: 04/20/2020)

40

Memorandum in opposition to re 36 Emergency MOTION

for Hearing MOTION for Leave to File Amended Complaint filed

by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT

OF COLUMBIA. (Attachments: # 1 Text of Proposed

Order)(Bluming, Micah) (Entered: 04/21/2020)

41 REPLY to opposition to motion re 36 Emergency MOTION for Hearing MOTION for Leave to File Amended Complaint filed by ENZO COSTA, WILLIAM DUNBAR, VINITA SMITH. (Freedman, John) (Entered: 04/21/2020)

42 Memorandum in opposition to re 39 MOTION for Temporary Restraining Order filed by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA. (Attachments: # 1

Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit

4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Text of Proposed Order)(Bluming, Micah) (Entered: 04/21/2020)

STIPULATION of Dismissal of Plaintiff Stefon Kirkpatrick's

43

Claims by ENZO COSTA, WILLIAM DUNBAR, STEFON

KIRKPATRICK, VINITA SMITH. (Banner, Kaitlin) (Entered:

04/21/2020)

44 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Memorandum in Support, # 2 Exhibit A Part 1, # 3 Exhibit A Part 2, # 4 Exhibit A Part 3, # 5 Exhibit A Part 4, # 6 Text of Proposed Order)(Bluming, Micah) (Entered: 04/22/2020)

45 RESPONSE TO ORDER April 20, 2020 Minute Order by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF

COLUMBIA (Attachments: # 1 Exhibit 1 - Patient Data, # 2

Exhibit 2 - Staff Data, # 3 Exhibit 3 - Administrative

04/22/2020
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04/22/2020 47
04/22/2020

Issuance)(Morton, Honey) Modified text on 4/22/2020 (ztd). (Entered: 04/22/2020)
MINUTE ORDER: Upon consideration of the parties' joint stipulation of dismissal, Dkt. 43, it is hereby ORDERED that the claims of Plaintiff Stefon Kirkpatrick are DISMISSED without prejudice. The Clerk's Office is directed to terminate Plaintiff Kirkpatrick as a party in this case. Signed by Judge Randolph D. Moss on 04/22/2020. (lcrdm2, ) Modified on 4/22/2020 to add clerk's office language (kt). (Entered: 04/22/2020)
REPLY to opposition to motion re 39 MOTION for Temporary Restraining Order filed by ENZO COSTA, WILLIAM DUNBAR,
VINITA SMITH. (Attachments: # 1 Exhibit Jones
Supplemental Declaration, # 2 Exhibit Stern Supplemental
Declaration, # 3 Exhibit Barkenow Declaration, # 4
Exhibit Mason Supplemental Declaration)(Freedman, John) (Entered: 04/22/2020)
ENTERED IN ERROR. . . . .NOTICE of additional Exhibit 5, Truettner Supplemental Declaration by ENZO COSTA, WILLIAM DUNBAR, STEFON KIRKPATRICK, VINITA
SMITH re 46 Reply to opposition to Motion, (Banner, Kaitlin) Modified on 4/22/2020 (ztd). (Entered: 04/22/2020)
MINUTE ORDER: There is a strong presumption in favor of public access to judicial records and documents, but that presumption "may be outweighed in certain cases by competing interests." Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 665 (D.C. Cir. 2017). Here, Defendants seek leave to file under seal Saint Elizabeths Hospital's Emergency Preparedness Plan ("EPP"). The EPP contains non -public details about operations at Saint Elizabeths Hospital and how the District plans to maintain operations during various emergency situations, including information about which kinds of patients are kept where, logistics for moving people in emergency situations, and locations of emergency supplies. The Court finds that the public interest in the disclosure of this document is low because little, if any of the EPP's contents bear on the matters being litigated in the case--the Defendants' response to COVID-19. Instead, the EPP's contents pertain to more general emergency preparedness measures. The reason for sealing, in contrast, is compelling. The

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04/22/2020

EPP contains sensitive operational and security details that could be compromised by public disclosure. Accordingly, Defendants' motion for leave to file under seal, Dkt. 44, is hereby GRANTED. The EPP, Dkt. 44-1 (attached exhibits to Dkt. 44), shall be filed under SEAL. Signed by Judge Randolph D. Moss on 04/22/2020. (lcrdm2, ) Modified on 4/23/2020 to add language for the Clerk's Office (kt). (Entered: 04/22/2020)

MEMORANDUM OPINION AND ORDER: It is hereby

48

ORDERED that Plaintiffs' motion to supplement their complaint,

Dkt. 36, is GRANTED, and Plaintiffs' supplemental pleading, Dkt.

36-1, is deemed filed. Signed by Judge Randolph D. Moss on

04/22/2020. (lcrdm2, ) Modified on 4/22/2020 to edit document

type to "opinion" (kt). (Main Document 48 replaced on 4/22/2020

to correct typo in first sentence.) (kt). (Entered: 04/22/2020)

49 NOTICE of Appearance by Margaret Hart on behalf of All Plaintiffs (Hart, Margaret) (Entered: 04/22/2020)

NOTICE OF ERROR re 47 Notice (Other); emailed to kaitlin_banner@washlaw.org, cc'd 17 associated attorneys -- The PDF file you docketed contained errors: 1. Please refile document, 2. The main document must be the title page Notice of Filing with the case caption etc.. then the declaration as an attachment to the Notice. (ztd, ) (Entered: 04/22/2020)
50 AMENDED COMPLAINT against BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA filed by WILLIAM DUNBAR, VINITA SMITH.(ztd) (Entered: 04/22/2020)
Minute Entry for proceedings held before Judge Randolph D. Moss: Telephonic Motion Hearing held on 4/22/2020 re: 39 MOTION for Temporary Restraining Order filed by ENZO COSTA, WILLIAM DUNBAR, VINITA SMITH. All parties and the Court appeared via telephone. Plaintiffs shall send a records citation to the relevant CDC guidelines, via email, to Defendants tonight; Plaintiffs shall send a list to Defendants by 9:00 AM on 4/23/2020; The parties shall meet and confer, and file a Joint Status Report by 4:00 PM on 4/23/2020. (Court Reporter Jeff Hook.) (kt) (Entered: 04/22/2020)
51 NOTICE of Filing of additional Exhibit 5 by ENZO COSTA,
WILLIAM DUNBAR, VINITA SMITH re 46 Reply to opposition to Motion, (Attachments: # 1 Exhibit Exhibit 5 to ECF

04/22/2020 04/23/2020 04/23/2020 04/24/2020 04/24/2020 04/24/2020

46, Truettner Supplemental Declaration)(Banner, Kaitlin) (Entered: 04/22/2020)
52 SEALED DOCUMENT filed by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit A2, # 2 Exhibit A3, # 3 Exhibit A4)(ztd) (Entered: 04/23/2020)
53 Joint STATUS REPORT filed on behalf of both parties by ENZO COSTA, WILLIAM DUNBAR, VINITA SMITH. (Attachments: # 1 Exhibit Plaintiffs' Request List, # 2 Exhibit Defendants' Response to Plaintiffs' Request List, # 3 Text of Proposed Order Plaintiffs' Revised Proposed Order)(Freedman, John) (Entered: 04/23/2020)
MINUTE ORDER: In light of the parties' joint status report, Dkt. 53, it is hereby ORDERED that the parties shall appear telephonically for a status conference on April 24, 2020, at 10:30am. The parties shall utilize the same telephone conference call number and access code. Signed by Judge Randolph D. Moss on 04/23/2020. (lcrdm2, ) Modified on 4/24/2020 to add last sentence. (kt). (Entered: 04/23/2020)
54 NOTICE of Filing CDC and DC Health Guidance by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Bluming, Micah) (Entered: 04/24/2020)
55 NOTICE OF FILING CDC GUIDANCE DOCUMENTS by ENZO COSTA, WILLIAM DUNBAR, VINITA SMITH (Attachments: # 1 Exhibit A: Preparing for COVID-19: Long-term Care Facilities, Nursing Homes, # 2 Exhibit B: Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities)(Spitzer, Arthur) (Entered: 04/24/2020)
Minute Entry for proceedings held before Judge Randolph D. Moss: Telephonic Status Conference held on 4/24/2020. All parties and the Court appeared via telephone. Any supplemental evidence shall be filed no later than 3:00 PM today. For the reasons stated on the record, the parties shall file a Joint Status Report by 6:00 PM, on 4/27/2020. A further Telephonic Status Conference is set for 4/28/2020, at 3:00 PM, before Judge Randolph D. Moss. The parties shall utilize the same telephone

04/24/2020 04/24/2020 04/24/2020 04/25/2020
04/25/2020
04/27/2020 04/28/2020 04/28/2020 04/28/2020

conference call number and access code. (Court Reporter: Jeff Hook.) (kt) (Entered: 04/24/2020)

RESPONSE TO ORDER OF THE COURT Court's Minute Order

56

of April 24, 2020 by BARBARA J. BAZRON, MARK J.

CHASTANG, DISTRICT OF COLUMBIA (Morton, Honey)

Modified text on 4/27/2020 (ztd). (Entered: 04/24/2020)

RESPONSE TO ORDER OF THE COURT April 24, 2020 Minute

57

Order by ENZO COSTA, WILLIAM DUNBAR, VINITA SMITH

(Banner, Kaitlin) Modified text on 4/27/2020 (ztd). (Entered:

04/24/2020)

NOTICE of Seventh Patient Death by ENZO COSTA, WILLIAM

58

DUNBAR, VINITA SMITH (Banner, Kaitlin) (Entered:

04/24/2020)

MEMORANDUM OPINION: The Court will grant in part and

59

defer in part Plaintiffs' motion for temporary restraining order,

Dkt. 39. A separate order will issue. See document for details.

Signed by Judge Randolph D. Moss on 04/25/2020. (lcrdm2, )

Modified on 4/28/2020 to modify document type as "opinion" (kt).

(Entered: 04/25/2020)

ORDER: For reasons set forth in the accompanying Memorandum

60

Opinion, Dkt. 59, it is hereby ORDERED that Plaintiffs' motion

for a temporary restraining order, Dkt. 39, is GRANTED in part

and DEFERRED in part. It is further ORDERED that Defendants

shall comply with the conditions set forth herein. See document

for details. Signed by Judge Randolph D. Moss on 04/25/2020.

(lcrdm2, ) (Entered: 04/25/2020)

Joint STATUS REPORT by ENZO COSTA, WILLIAM

61

DUNBAR, VINITA SMITH. (Banner, Kaitlin) (Entered:

04/27/2020)

62 NOTICE of Appearance by Robert A. DeBerardinis, Jr on behalf of All Defendants (DeBerardinis, Robert) (Entered: 04/28/2020)

Joint STATUS REPORT by BARBARA J. BAZRON, MARK J.

63

CHASTANG, DISTRICT OF COLUMBIA. (Bluming, Micah)

(Entered: 04/28/2020)

Minute Entry for proceedings held before Judge Randolph D. Moss: Telephonic Status Conference held on 4/28/2020. All parties and the Court appeared via telephone. As described on the record, Defendants shall provide daily reports to Plaintiffs. For the

04/28/2020 04/30/2020
04/30/2020
05/01/2020 05/01/2020 05/01/2020

reasons stated on the record, the parties shall meet and confer, and provide a Joint Status Report as to the appointment of a third party, by 10:00 AM on 4/30/2020. By 5/5/2020 the parties shall meet and confer as to a schedule going forward, and by 5/7/2020 they shall file a Joint Status Report with the Court as to further scheduling. (Court Reporter: Jeff Hook.) (kt) (Entered: 04/28/2020)

64 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 04/28/2020)

Joint STATUS REPORT filed on behalf of Both Parties by ENZO

65

COSTA, WILLIAM DUNBAR, VINITA SMITH. (Attachments:

# 1 Exhibit Exhibit A (Canavan CV), # 2 Exhibit Exhibit B

(Hebden CV), # 3 Exhibit Exhibit C (Waldman CV), # 4 Exhibit

Exhibit D (Plaintiffs List of Proposed Records to Be

Provided))(Freedman, John) (Entered: 04/30/2020)

MINUTE ORDER: In light of the parties' joint status report, Dkt. 65, it is hereby ORDERED that the parties shall appear telephonically for a status conference on May 1, 2020, at 10:00am. The parties shall utilize the same telephone conference call number and access code. Signed by Judge Randolph D. Moss on 04/30/2020. (lcrdm2, ) (Entered: 04/30/2020)

Set/Reset Hearings: Telephonic Status Conference set for 5/1/2020, at 10:00 AM, before Judge Randolph D. Moss. (kt) (Entered: 05/01/2020)

NOTICE of Saint Elizabeths Hospital COVID-19 Data by ENZO

66

COSTA, WILLIAM DUNBAR, VINITA SMITH (Attachments:

# 1 Exhibit Exhibit 1 - Summarized Patient Data)(Banner, Kaitlin) (Entered: 05/01/2020)

Minute Entry for proceedings held before Judge Randolph D. Moss: Telephonic Status Conference held on 5/1/2020. All parties and the Court appeared via telephone. The Court placed on the record part of its order that will be forthcoming, and which will include the appointments of Ms. Hepden, Dr. Canavan, and Dr. Waldman as amici. Preliminary findings are due 5/7/2020, and a written report is due 5/11/2020. Revised proposed questions regarding mental health treatment are due by 3:00 PM today. (Court Reporter: Jeff Hook.) (kt) (Entered: 05/01/2020)

05/01/2020 05/01/2020
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67 Joint STATUS REPORT ON BEHALF OF ALL PARTIES by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA. (Bluming, Micah) (Entered: 05/01/2020)
68 ORDER: Appointing Dr. Ronald Waldman, Joan Hebden, and Dr. Patrick Canavan as amici curiae to provide information to the Court relating to the questions listed in Attachment A. Amici shall provide an oral report with preliminary factual findings and recommendations on or before May 7, 2020, and shall provide a written report by May 11, 2020. See document for details. Signed by Judge Randolph D. Moss on 05/01/2020. (Attachments: # 1 Exhibit Attachment A) (lcrdm2, ) (Entered: 05/01/2020)
69 Joint MOTION for Protective Order by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit A)(Bluming, Micah) (Entered: 05/01/2020)
70 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 05/01/2020)
MINUTE ORDER: In light of the Court's order appointing amici, Dkt. 68, it is hereby ORDERED that the parties shall appear telephonically for a status conference on May 7, 2020, at 2:00pm, at which Amici shall provide an oral report with their preliminary factual findings and recommendations. The parties shall utilize the same telephone conference call number and access code as the previous status conference, and shall provide that information to Amici. Signed by Judge Randolph D. Moss on 05/02/2020. (lcrdm2, ) (Entered: 05/02/2020)
MINUTE ORDER: Upon consideration of the parties' joint motion for the entry of a protective order, Dkt. 69, it is hereby ORDERED that the motion is GRANTED. The parties shall abide by the jointly proposed protective order, Dkt. 69-2, which the Court adopts in full. Signed by Judge Randolph D. Moss on 05/02/2020. (lcrdm2, ) (Entered: 05/02/2020)
71 PROTECTIVE ORDER. Signed by Judge Randolph D. Moss on 05/02/2020. (lcrdm2, ) (Entered: 05/04/2020)
72 Consent MOTION for Extension of Time to Respond to Plaintiffs' Amended Complaint by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed

05/05/2020 05/05/2020 05/06/2020 05/06/2020 05/07/2020
05/07/2020

Order)(Bluming, Micah) Modified event on 5/5/2020 (ztd). (Entered: 05/04/2020)
MINUTE ORDER: Upon consideration of the Defendants' unopposed motion to extend, Dkt. 72, it is hereby ORDERED that the motion is GRANTED. Defendants shall answer or otherwise respond to the amended complaint on or before June 5, 2020. Signed by Judge Randolph D. Moss on 05/05/2020. (lcrdm2, ) (Entered: 05/05/2020)
73 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 05/05/2020)
MINUTE ORDER: It is hereby ORDERED that the Courtappointed amici and the parties shall appear telephonically for a status conference on May 6, 2020, at 2:00pm. The parties shall utilize the same telephone conference call number and access code as the previous status conference and shall provide that information to amici. Signed by Judge Randolph D. Moss on 05/06/2020. (lcrdm2, ) (Entered: 05/06/2020)
Minute Entry for proceedings held before Judge Randolph D. Moss: Telephonic Status Conference held on 5/6/2020. All parties, the Court-appointed amici, and the Court, appeared via telephone. Guidance that was sought by the amici was specified and prescribed on the record by the Court. (Court Reporter: Jeff Hook.) (kt) (Entered: 05/06/2020)
Minute Entry for proceedings held before Judge Randolph D. Moss: Telephonic Status Conference held on 5/7/2020. All parties, the Court-appointed amici, and the Court, appeared via telephone. Preliminary findings and oral reports of the Court-appointed amici were placed on the record. The parties shall confer and file a Joint Status Report by 4:00 PM on 5/8/2020. The Court extends the TRO without prejudice, to 11:59 PM on 5/11/2020. Further guidance and direction was given on the record by the Court to the amici. (Court Reporter: Jeff Hook.) (kt) (Entered: 05/07/2020)
MINUTE ORDER: For the reasons stated on the record at the May 7, 2020 status conference, and with consent of the parties, it is hereby ORDERED that the Temporary Restraining Order (TRO) entered on April 25, 2020, Dkt. 60, is hereby EXTENDED until 11:59 pm on May 11, 2020, unless further extended for good cause before that time. The extension is warranted because the public health crisis at Saint Elizabeths Hospital continues, because amici have provided the Court with their preliminary

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

report, which supports the need for continued judicial relief, because amici will not provide their final, written report to the Court until 5:00 pm on May 11, 2020, and because the Court will need an opportunity to determine whether the TRO should be extended and/or modified in light of that report. For the reasons the Court has previously explained, Plaintiffs have established that they are likely to prevail on the merits, that they risk suffering irreparable harm in the absence of emergency relief, and that the public interest and balance of harms tip in favor emergency relief. Finally, the Court notes that these proceedings have not occurred ex parte and that the Court has had the opportunity to hear from, and to consider the views of, both Plaintiffs and Defendants. Signed by Judge Randolph D. Moss on 05/07/2020. (lcrdm2, ) (Entered: 05/07/2020)

Joint STATUS REPORT ON BEHALF OF ALL PARTIES by

74

BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF

COLUMBIA. (Bluming, Micah) (Entered: 05/08/2020)

75 NOTICE of Proposed Order to Extend and Expand the Temporary Restraining Order by ENZO COSTA, WILLIAM DUNBAR,

VINITA SMITH re 74 (Entered: 05/08/2020)

Status Report (Banner, Kaitlin)

76 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 05/08/2020)

77 TRANSCRIPT OF TELEPHONIC STATUS CONFERENCE before Judge Randolph D. Moss held on May 7, 2020. Page Numbers: 1 - 100. Date of Issuance: May 9, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy,

05/10/2020
05/11/2020 05/11/2020 05/11/2020 05/11/2020

which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 5/30/2020. Redacted Transcript Deadline set for 6/9/2020. Release of Transcript Restriction set for 8/7/2020.(Hook, Jeff) (Entered: 05/09/2020)

MINUTE ORDER: Upon consideration of the parties' joint status report, Dkt. 74, it is hereby ORDERED that the following schedule shall govern future proceedings in this matter: Plaintiffs shall file their motion for preliminary injunction on or before May 14, 2020; Defendants shall file their brief in opposition to Plaintiffs motion on or before May 18, 2020; Plaintiffs shall file their reply on or before May 20, 2020, at 12:00pm; and the parties shall appear telephonically for a hearing on May 21, 2020, at 3:00pm. The parties shall utilize the same telephone conference call number and access code. Signed by Judge Randolph D. Moss on 05/10/2020. (lcrdm2, ) Modified on 5/11/2020 to add language on how to connect to the call (kt). Modified on 5/11/2020 to correct dkt. number reference of joint status report (kt). (Entered: 05/10/2020)

Set/Reset Deadlines: Motion due by 5/14/2020; Response due by 5/18/2020; Reply due by 5/20/2020. (kt) (Entered: 05/11/2020)

NOTICE of Filing of Report of Amici Dr. Patrick Canavan by

78

PATRICK CANAVAN (Freedman, John) Modified filer on

5/12/2020 (znmw). (Entered: 05/11/2020)

NOTICE of Proposed Order to Deny Extension or Expansion of

79

the Court's Temporary Restraining Order by BARBARA J.

BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA

re 75 Notice of Proposed Order (Bluming, Micah) (Entered:

05/11/2020)

80 TRANSCRIPT OF TELEPHONIC MOTION HEARING before Judge Randolph D. Moss held on April 22, 2020. Page Numbers: 1 - 96. Date of Issuance: May 11, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.

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

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 6/1/2020. Redacted Transcript Deadline set for 6/11/2020. Release of Transcript Restriction set for 8/9/2020.(Hook, Jeff) (Entered: 05/11/2020)

NOTICE of Filing of Report of Amici Joan Hebden RN and Dr.

81

Ronald Waldman by JOAN HEBDEN, RONALD WALDMAN

(Attachments: # 1 Appendix A)(Freedman, John) Modified filers on 5/12/2020 (znmw). (Entered: 05/11/2020)

MEMORANDUM OPINION: The Court finds that there is good

82

cause to extend the TRO, Dkt. 60, until May 22, 2020, and to

expand it in two respects. A separate order will issue. See

document for details. Signed by Judge Randolph D. Moss on

05/11/2020. (lcrdm2, ) (Entered: 05/11/2020)

ORDER: For reasons set forth in the accompanying Memorandum

83

Opinion, Dkt. 82, the TRO, Dkt. 60, is hereby EXTENDED until

May 22, 2020, and expanded in two respects. It is further

ORDERED that Defendants shall comply with the conditions set

forth herein. See document for details. Signed by Judge Randolph

D. Moss on 05/11/2020. (lcrdm2, ) (Entered: 05/11/2020)

84 TRANSCRIPT OF TELEPHONIC STATUS CONFERENCE before Judge Randolph D. Moss held on April 24, 2020. Page Numbers: 1 - 80. Date of Issuance: May 12, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court report er referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter

05/12/2020 05/14/2020 05/14/2020
05/15/2020 05/16/2020 05/18/2020

any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 6/2/2020. Redacted Transcript Deadline set for 6/12/2020. Release of Transcript Restriction set for 8/10/2020.(Hook, Jeff) (Entered: 05/12/2020)

85 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 05/12/2020)
86 NOTICE of Appearance by Gavin Noyes Palmer on behalf of All Defendants (Palmer, Gavin) (Entered: 05/14/2020)

MOTION for Preliminary Injunction by ENZO COSTA,

87

WILLIAM DUNBAR, VINITA SMITH (Attachments: # 1

Memorandum in Support, # 2 Exhibit Ex. 1 Declaration of I. Murphy, # 3 Exhibit Ex. 2 SAMHSA Guidance, # 4

Exhibit Ex. 3 Second Declaration of V. Smith, # 5

Exhibit Ex. 4 Second Declaration of E. Costa, # 6

Exhibit Ex. 5 Second Declaration of W. Dunbar, # 7 Exhibit

Ex. 6 (May 8 D.C. Superior Court Order), # 8 Exhibit Ex. 7

Third Declaration of E. Jones, # 9 Exhibit Ex. 8 Second Declaration of W. Rose, # 10 Text of Proposed Order)(Freedman, John) (Entered: 05/14/2020)

88 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 05/15/2020)

89 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 05/16/2020)
90 Memorandum in opposition to re 87 MOTION for Preliminary Injunction filed by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA. (Attachments: # 1

05/19/2020 05/20/2020 05/20/2020 05/22/2020
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Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4
Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7
Exhibit G, # 8 Exhibit H, # 9 Text of Proposed Order)(Bluming, Micah) (Entered: 05/18/2020)
91 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 05/19/2020)
92 REPLY to opposition to motion re 87 MOTION for Preliminary Injunction filed by ENZO COSTA, WILLIAM DUNBAR, VINITA SMITH. (Attachments: # 1 Exhibit 1 (March 18 Letter from B. Barzon), # 2 Exhibit 2 (April 16 Letter from B. Barzon))(Freedman, John) (Entered: 05/20/2020)
MINUTE ORDER: It is hereby ORDERED that the telephonic hearing currently scheduled for May 21, 2020, is RESCHEDULED to May 22, 2020, at 11:00am. Signed by Judge Randolph D. Moss on 05/20/2020. (lcrdm2, ) (Entered: 05/20/2020)
Minute Entry for proceedings held before Judge Randolph D. Moss: Telephonic Motion Hearing held on 5/22/2020 re: 87
MOTION for Preliminary Injunction filed by ENZO COSTA, WILLIAM DUNBAR, VINITA SMITH. All parties, and the Court, appeared via telephone. Matter taken under advisement; Opinion and Order forthcoming. (Court Reporter: Jeff Hook.) (kt) (Entered: 05/22/2020)
93 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 05/22/2020)
MINUTE ORDER: The parties are hereby advised that the Court will issue its opinion with respect to the pending motion for a preliminary injunction, Dkt. 87, on May 23, 2020. Signed by Judge Randolph D. Moss on 05/22/2020. (lcrdm2, ) (Entered: 05/22/2020)
94 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 05/23/2020)

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05/30/2020

MEMORANDUM OPINION: For the reasons explained herein,

95

the Court will GRANT in part and DENY in part Plaintiffs' motion

for a preliminary injunction, Dkt. 87. A separate order will issue.

See document for details. Signed by Judge Randolph D. Moss on

05/24/2020. (lcrdm2, ) Modified on 5/26/2020 to edit document

type as "opinion" (kt). (Entered: 05/24/2020)

ORDER: For reasons set forth in the accompanying Memorandum

96

Opinion, Dkt. 95, it is hereby ORDERED that Plaintiffs' motion

for a preliminary injunction, Dkt. 87, is GRANTED in part and

DENIED in part. It is further ORDERED that Defendants shall

comply with the conditions set forth herein. See document for

details. Signed by Judge Randolph D. Moss on 05/24/2020.

(lcrdm2, ) (Entered: 05/24/2020)

Set/Reset Deadlines: Defendants' Status Report due by 6/8/2020. (kt) (Entered: 05/26/2020)

97 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 05/28/2020)

98 Consent MOTION for Extension of Time to Respond to Plaintiffs' Amended Complaint by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Bluming, Micah) Modified on 6/1/2020 (ztd). (Entered: 05/29/2020)

99 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 05/29/2020)

MINUTE ORDER: Upon consideration of the Defendants' unopposed motion to extend, Dkt. 98, it is hereby ORDERED that the motion is GRANTED. Defendants shall answer or otherwise respond to the amended complaint on or before July 10, 2020, and Plaintiffs, should they choose, may file an opposition to Defendants' response on or before July 31, 2020. Signed by Judge Randolph D. Moss on 05/30/2020. (lcrdm2, ) (Entered: 05/30/2020)

MINUTE ORDER: Pending before the Court is Defendants' motion to dismiss Plaintiffs' original complaint, Dkt. 21, and Plaintiffs' motion to certify a class, Dkt. 30, which was filed prior to the amended complaint. Given the developments since those motions were filed, including the filing of an amended complaint,

Dkt. 50, it is hereby ORDERED that these motions are DENIED as MOOT. The parties are free to refile these motions, updating them as necessary in light of the amended pleadings and other developments. Signed by Judge Randolph D. Moss on 05/30/2020. (lcrdm2, ) (Entered: 05/30/2020)

06/06/2020

100 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 06/06/2020)

06/08/2020

101 Unopposed MOTION for Extension of Time to File Status Report by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Bluming, Micah) (Entered: 06/08/2020)

06/09/2020

MINUTE ORDER: Upon consideration of Defendants' unopposed motion for extension, Dkt. 102, it is hereby ORDERED that the motion is GRANTED. Defendants shall file a status report regarding the recommendations of the Court-appointed amici, as ordered in the Court's preliminary injunction, Dkt. 96, on or before June 12, 2020. Signed by Judge Randolph D. Moss on 06/09/2020. (lcrdm2, ) (Entered: 06/09/2020)

06/12/2020 102

STATUS REPORT by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA. (Attachments: # 1

Exhibit A)(Bluming, Micah) (Entered: 06/12/2020)

06/19/2020

103 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 06/19/2020)

06/22/2020

104 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 96

Order, by MARK J. CHASTANG, DISTRICT OF COLUMBIA, BARBARA J. BAZRON. Fee Status: No Fee Paid. Parties have been notified. (Bluming, Micah) (Entered: 06/22/2020)

06/23/2020

105 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 104 Notice of Appeal to DC Circuit Court. (zjf) (Entered: 06/23/2020)

06/25/2020

USCA Case Number 20-7055 for 104 Notice of Appeal to DC Circuit Court filed by DISTRICT OF COLUMBIA, BARBARA J. BAZRON, MARK J. CHASTANG. (zrdj) (Entered: 06/26/2020)

07/03/2020 106

NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 07/03/2020)

07/10/2020 107

MOTION to Dismiss or in the Alternative, MOTION for Summary Judgment by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Attachments: # 1

Memorandum in Support, # 2 Statement of Facts, # 3

Exhibit A, # 4 Text of Proposed Order)(Bluming, Micah) (Entered: 07/10/2020)

07/17/2020

108 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 07/17/2020)

07/27/2020

109 Consent MOTION for Extension of Time to File Response/Reply

as to 107 MOTION to Dismiss or in the Alternative MOTION for Summary Judgment by ENZO COSTA, WILLIAM DUNBAR, VINITA SMITH (Attachments: # 1 Text of Proposed Order)(Banner, Kaitlin) (Entered: 07/27/2020)

07/28/2020

MINUTE ORDER: Upon consideration of Plaintiffs' motion for extension of time, Dkt. 109 , the motion is hereby GRANTED. Plaintiffs shall file their response on or before August 14, 2020. Signed by Judge Randolph D. Moss on 7/28/20. (lcrdm2) (Entered: 07/28/2020)

07/31/2020

110 NOTICE of Compliance by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Morton, Honey) (Entered: 07/31/2020)

08/14/2020

111 Memorandum in opposition to re 107 MOTION to Dismiss or in the Alternative MOTION for Summary Judgment filed by ENZO COSTA, WILLIAM DUNBAR, VINITA SMITH. (Attachments: # 1 Exhibit Pl. Response to Def. Local Rule(H)(1) Statement of Material Facts and Statement of Genuine Issues, # 2 Exhibit Declaration of Kaitlin Banner, # 3 Text of Proposed Order)(Banner, Kaitlin) (Entered: 08/14/2020)

08/14/2020 08/18/2020 08/18/2020 08/28/2020 09/04/2020
09/10/2020 09/11/2020 09/11/2020 09/22/2020

112 NOTICE of Compliance by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Palmer, Gavin) (Entered: 08/14/2020)
113 Unopposed MOTION for Extension of Time to File a Reply by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Bluming, Micah) (Entered: 08/18/2020)
MINUTE ORDER: Upon consideration of Defendants' consent motion for extension of time, Dkt. 113 , the motion is hereby GRANTED. Defendants shall file their reply on or before September 4, 2020. Signed by Judge Randolph D. Moss on 8/18/20. (lcrdm2) (Entered: 08/18/2020)
114 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 08/28/2020)
115 REPLY to opposition to motion re 107 MOTION to Dismiss or in the Alternative MOTION for Summary Judgment filed by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA. (Bluming, Micah) (Entered: 09/04/2020)
116 MOTION for Leave to File a Surreply or in the Alternative to Strike Argument Not Previously Raised by ENZO COSTA, WILLIAM DUNBAR, VINITA SMITH (Attachments: # 1 Text of Proposed Order Proposed Order)(Banner, Kaitlin). Added MOTION to Strike on 9/11/2020 (ztd). (Entered: 09/10/2020)
117 NOTICE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA re 116 MOTION for Leave to File a Surreply or in the Alternative to Strike Argument Not Previously Raised MOTION to Strike (Bluming, Micah) (Entered: 09/11/2020)
118 NOTICE of Compliance by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Morton, Honey) (Entered: 09/11/2020)
119 Memorandum in opposition to re 116 MOTION for Leave to File a Surreply or in the Alternative to Strike Argument Not Previously Raised MOTION to Strike filed by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA.

(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Bluming, Micah) (Entered: 09/22/2020)

09/23/2020

120 REPLY to opposition to motion re 116 MOTION for Leave to File a Surreply or in the Alternative to Strike Argument Not Previously Raised MOTION to Strike filed by ENZO COSTA, WILLIAM DUNBAR, VINITA SMITH. (Attachments: # 1 Exhibit A)(Freedman, John) (Entered: 09/23/2020)

09/25/2020 121

NOTICE of Compliance by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Morton, Honey) (Entered: 09/25/2020)

10/09/2020 122

NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 10/09/2020)

10/13/2020

MINUTE ORDER: Pending before the Court is Plaintiffs' motion to file a surreply brief or, in the alternative, to strike certain arguments in Defendants' reply brief. Dkt. 116 . Defendants opposed the motion, Dkt. 119 , and Plaintiffs replied, Dkt. 120 . In the parties' briefing, an entirely different dispute emerged about whether Defendants had complied with the Court's prior order that they provide Plaintiffs with jurisdictional discovery. At a hearing on January 22, 2020, the Court granted in part Plaintiffs' motion for jurisdictional discovery. See Minute Entry (Jan. 22, 2020). The Court permitted jurisdictional discovery "as to items 1, 2, 4, 5, and 6 of Exhibit 1," and the Court also permitted, "[a]s to item 8 of Exhibit 1," Plaintiffs to "serve a request for admission as outlined by the Court on the record." Id. Defendants argue that they complied with that order by denying a request for admission from Plaintiffs. Dkt. 119 at 34; Dkt. 119 -2 at 5. Plaintiffs contend that Defendants, by denying the request for admission, have complied with only one of six parts of the Court's order of jurisdictional discovery and that Plaintiffs "are still lacking critical information" needed to respond to Defendants' jurisdictional arguments. Dkt. 120 at 2. The Court agrees with Plaintiffs that Defendants have not yet fully complied with the Court's order granting jurisdictional discovery. The Court will therefore ORDER that Defendants serve on Plaintiffs the full jurisdictional discovery outlined in the Court's prior order on or before November 16, 2020. It is hereby further ORDERED that the parties shall file a joint status report on the progress of jurisdictional discovery on or before November 16, 2020. The Court will reserve judgment on the motion to file a surreply until after the completion of

jurisdictional discovery. Signed by Judge Randolph D. Moss on 10/13/2020. (lcrdm2) (Entered: 10/13/2020)

10/23/2020

123 NOTICE of Compliance by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Morton, Honey) (Entered: 10/23/2020)

11/06/2020

124 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 11/06/2020)

11/16/2020 125

Joint STATUS REPORT by DISTRICT OF COLUMBIA. (Bluming, Micah) (Entered: 11/16/2020)

11/19/2020

MINUTE ORDER: Upon consideration of the parties' joint status

report, Dkt. 125 , it is hereby ORDERED that the parties shall file a further joint status report updating the Court on the status of jurisdictional discovery on or before December 1, 2020. Signed by Judge Randolph D. Moss on 11/19/20. (lcrdm2) (Entered: 11/19/2020)

11/20/2020 126

NOTICE of Compliance by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Morton, Honey) (Entered: 11/20/2020)

12/01/2020

127 Joint STATUS REPORT by ENZO COSTA, WILLIAM DUNBAR, VINITA SMITH. (Banner, Kaitlin) (Entered: 12/01/2020)

12/02/2020

MINUTE ORDER: Still pending before the Court is Plaintiffs' motion for leave to file a sur-reply or, in the alternative, to strike arguments not previously raised. Dkt. 116 . Defendants opposed the motion, Dkt. 119 , and Plaintiffs replied, Dkt. 120 . In those briefs, a separate-yet-related dispute emerged over whether Defendants had fully complied with the Court's prior order directing them to produce jurisdictional discovery. The Court thus ordered Defendants to complete jurisdictional discovery and reserved judgment on the motion to file a sur-reply until after the completion of jurisdictional discovery. The parties have now filed a joint status report, Dkt. 127 , indicating that jurisdictional discovery is complete and renewing their respective positions on the necessity of the sur-reply. Upon consideration of the parties' submissions, it is hereby ORDERED that Plaintiffs' motion for leave to file a sur-reply or, in the alternative, to strike arguments not previously raised, is GRANTED in part and DENIED in part. Plaintiffs may file a sur-reply of no more than seven pages on or

before December 11, 2020. In their brief, Plaintiffs may address only (1) the applicability in this case of the voluntary cessation exemption to the mootness doctrine, in light of Defendants' contention that they ceased the challenged behavior independent of this litigation, and (2) the timeliness of Plaintiffs' motion for class certification. The Court will not, however, strike Defendants' arguments. Signed by Judge Randolph D. Moss on 12/2/2020. (lcrdm2) (Entered: 12/02/2020)

12/04/2020

128 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 12/04/2020)

12/11/2020 129

SURREPLY to re 107 MOTION to Dismiss or in the Alternative MOTION for Summary Judgment filed by ENZO COSTA, WILLIAM DUNBAR, VINITA SMITH. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E)(Banner, Kaitlin) (Entered: 12/11/2020)

12/18/2020 130

NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Palmer, Gavin) (Entered: 12/18/2020)

12/31/2020

131 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 12/31/2020)

01/12/2021

132 TRANSCRIPT OF TELEPHONIC MOTION HEARING before Judge Randolph D. Moss held on May 22, 2020. Page Numbers: 1 - 74. Date of Issuance: January 12, 2021. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the

01/15/2021 01/29/2021 02/12/2021 02/26/2021 03/12/2021

public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 2/2/2021. Redacted Transcript Deadline set for 2/12/2021. Release of Transcript Restriction set for 4/12/2021.(Hook, Jeff) (Entered: 01/12/2021)
133 NOTICE of Compliance by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Morton, Honey) (Entered: 01/15/2021)
134 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 01/29/2021)
135 NOTICE of Compliance by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Morton, Honey) (Entered: 02/12/2021)
136 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 02/26/2021)
137 NOTICE OF COMPLIANCE by BARBARA J. BAZRON, MARK J. CHASTANG, DISTRICT OF COLUMBIA (Bluming, Micah) (Entered: 03/12/2021)

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1:19-cv-03185RDM 2.10

 
 Case 1:19-cv-03185 Document 1 Filed 10/23/19 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENZO COSTA Saint Elizabeths Hospital 1100 Alabama Avenue SE Washington, DC 20032

VINITA SMITH Saint Elizabeths Hospital 1100 Alabama Avenue SE Washington, DC 20032
WILLIAM DUNBAR Saint Elizabeths Hospital 1100 Alabama Avenue SE Washington, DC 20032

Case No. COMPLAINT

STEFON KIRKPATRICK Saint Elizabeths Hospital 1100 Alabama Avenue SE Washington, DC 20032
on behalf of themselves and all persons similarly situated,

Plaintiffs, v.

BARBARA J. BAZRON, Director Department of Behavioral Health in her individual capacity 64 New York Avenue, NE - 3rd Floor Washington, DC 20002

MARK J. CHASTANG, Chief Executive Officer, Saint Elizabeths Hospital in his individual capacity 1100 Alabama Avenue, SE Washington, DC 20032

DISTRICT OF COLUMBIA c/o Attorney General of the District of Columbia 441 4th Street, NW Washington, DC 20001,

Defendants.

Case 1:19-cv-03185 Document 1 Filed 10/23/19 Page 2 of 23
CLASS ACTION COMPLAINT (For declaratory and injunctive relief—unconstitutional conditions at Saint Elizabeths Hospital)
Introduction 1. A hospital without water is not really a hospital. Plaintiffs Enzo Costa, Vinita Smith, Stefon Kirkpatrick, and William Dunbar are all patients at Saint Elizabeths Hospital, the District’s psychiatric hospital (“Saint Elizabeths” or the “Hospital”). They are four of approximately 270 individuals with mental health disabilities at Saint Elizabeths Hospital. Plaintiffs and other similarly situated patients are currently subject to unconstitutional and inhumane conditions that shock the conscience. Saint Elizabeths Hospital has been without safe, running water since September 26, 2019, exposing these vulnerable patients to irreparable harmful physical, emotional, and mental health consequences. Although there are reports that the water is being turned back on (see ¶34 below), this is not the first time that government officials have promised that the water will restored during this current crisis. It is also the second time in three years that Saint Elizabeths Hospital has experienced a major and extended water outage. 2. The extended water outage is directly impacting necessary patient medical care. Defendants closed the Treatment Mall, the location at the Hospital where treatment planning meetings are held and patients receive group therapy, art therapy, and music therapy, and they have curtailed or suspended a wide variety of therapy and other forms of psychiatric care on which Plaintiffs and members of the class demand and need to manage and maintain their mental health. Patients are confined to their units and their rooms and are unable to attend regularly scheduled therapy. Patients cannot access other forms of routine medical care. 3. Unhygienic conditions are pervasive to the point where they are endangering patient health. As a result of the extended water crisis, patients at Saint Elizabeths, all of whom

Case 1:19-cv-03185 Document 1 Filed 10/23/19 Page 3 of 23
are committed to the District’s care and custody, are enduring inhumane, unsafe, and medically dangerous conditions that risk the health, mental health, and safety. Patients cannot shower, wash their hands, or use the toilets regularly. Fecal matter, urine, and menstrual blood are accumulating in the bathrooms. Patients are only allowed to shower on a limited schedule, and must shower outside in dirty and portable showers which are inaccessible to the many patients with mobility disabilities.
4. This Class Action Complaint challenges the Defendant’s decision to keep Saint Elizabeths operating during this extended water crisis without adequate protections for patients. Despite the fact that there is no safe, running water, Defendants are continuing to admit new patients at Saint Elizabeths Hospital and to keep patients at Saint Elizabeths rather than transferring them to other appropriate facilities or discharging them to community-based care where appropriate. Defendants are not providing appropriate care and safety for Plaintiffs and other similarly situated patients in violation their due process rights and rights under federal law Defendant’s conduct in continuing to commit Plaintiffs in facility with no safe, running, water is so egregious as to shock the conscience.
Subject Matter Jurisdiction & Venue 5. The Court has subject matter jurisdiction over this case under 28 U.S.C. §§ 1331 and 1343 because this action presents federal questions and seeks to redress the deprivation of rights under the Fifth Amendment to the U.S. Constitution, pursuant to 42 U.S.C. §1983. 6. Venue is proper in this District under 28 U.S.C. §1391(b)(2) because all of the events giving rise to the claims took place in this District. 7. Declaratory relief is authorized by 28 U.S.C. §2201. A declaration of law is necessary and appropriate to determine the parties’ respective rights and duties. 8. Injunctive relief is authorized by 28 U.S.C. § 2202.
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Case 1:19-cv-03185 Document 1 Filed 10/23/19 Page 4 of 23
Parties 9. Enzo Costa is thirty-eight years old and is a patient at Saint Elizabeths Hospital in Unit 1C. He is diagnosed with schizophrenia, dystonia, schizo-affective disorder, and anti-social personality disorder. He is indefinitely, involuntarily civilly committed to the District’s care. 10. Vinita Smith is a fifty-six years old and is a patient at Saint Elizabeths Hospital in Unit 1F. She is diagnosed with schizo-affective disorder that requires medication and therapy. She is indefinitely, involuntarily civilly committed to the District’s care. 11. Stefon Kirkpatrick is thirty years old and is a patient at Saint Elizabeths Hospital in Unit 2C. He is diagnosed with psychosis disorder. He is indefinitely, involuntarily civilly committed to the District’s care. 12. William Dunbar is thirty years old and is a patient at Saint Elizabeths Hospital in Unit 2A. He is diagnosed with paranoia schizophrenia. He is indefinitely, involuntarily civilly committed to the District’s care. 13. Plaintiffs bring this action on behalf of themselves and other similarly situated patients at Saint Elizabeths Hospital. 14. The named Plaintiffs and the members of the Plaintiff Class are persons with a disability or perceived to have a disability, as that term is defined in the Americans with Disabilities Act (“ADA”), and are entitled to the protections of the ADA. 42 U.S.C. §12102(2)(A). 15. Defendant District of Columbia (“the District”) owns and operates Saint Elizabeths Hospital, and is responsible for the services and supports provided to patients at Saint Elizabeths. Saint Elizabeths is the District’s only public psychiatric facility for individuals with serious and persistent mental illness who need intensive inpatient care to support their recovery.
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Saint Elizabeths also provides mental health evaluations and care to patients committed by the courts.
16. The District of Columbia is a public entity as that term is defined in the ADA. 42 U.S.C. § 12131(1).
17. Defendant Barbara Bazron is the Director of the Department of Behavioral Health, the District agency that oversees Saint Elizabeth. She is sued in her individual capacity.
18. Defendant Mark Chastang is the Chief Executive Officer of Saint Elizabeths Hospital. He is sued in his individual capacity.
Statement of Facts Contaminated Water at Saint Elizabeths Hospital 19. Saint Elizabeths Hospital is the District’s public psychiatric facility and serves individuals with mental illness who need intensive inpatient care. Saint Elizabeths is the District’s only public psychiatric facility for individuals with serious and persistent mental illness who need intensive inpatient care to support their recovery. Saint Elizabeth’s also provides mental health evaluations and care to patients committed by the courts. 20. Patients at Saint Elizabeths Hospital are entitled to a dignified, respectful and supportive environment and generally accepted standards of individualized treatment, continuity of care, professionalism, and health and safety. 21. Saint Elizabeths has an average of 270 patients per day and approximately 700 employees. 22. Saint Elizabeths has not had safe, running water since at least September 26, 2019. Since September 26, 2019, the water supply at Saint Elizabeths has been either completely turned off or has been limited for sewage use only.
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23. Despite the extended water outage and the inability to provide appropriate, required medical care and therapy, as described below, Saint Elizabeths is still accepting new patients.
24. The extended water outage and its effects cause a clear risk to the health and safety of Saint Elizabeths’ patients, including Plaintiffs and class members. The extended water outage and its effects creates an unreasonable risk of traumatizing patients and exacerbates symptoms of mental illness.
25. The current conditions at Saint Elizabeths, as described below, will result in long lasting, if not permanent, damage to patients and their efforts at recovery.
26. The current conditions at Saint Elizabeths, as described below, violate professional standards of care and treatment.
27. On September 26, 2019, the D.C. Department of Behavioral Health (“DBH”) received preliminary lab results for a water quality test of Saint Elizabeths showing evidence of pseudomonas and legionella bacteria in the facility’s water supply.
28. Legionella bacteria is known for causing Legionnaires’ disease, which can lead to severe infections in people with weakened immune systems. According to the Centers for Disease Control and Prevention, one out of four people who contract Legionnaires’ disease in a healthcare setting dies because of it.
29. Pseudomonas bacteria can lead to severe infections for people with weakened immune systems.
30. In response to the bacteria found in the water supply, DBH reportedly implemented its “water emergency protocol” and turned the water off completely. Upon
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Case 1:19-cv-03185 Document 1 Filed 10/23/19 Page 7 of 23
information and belief, the water has been turned on occasionally and for limited purposes since September 26, 2019 but at no point has Saint Elizabeths had safe, running water.
31. At the end of September, Plaintiffs Ms. Smith, Mr. Costa, Mr. Kirkpatrick, and Mr. Dunbar were abruptly told by staff that the water would be shut off because there was a water problem.
32. Upon information and belief, DBH hired contractors to flush Saint Elizabeths’ water system with chlorine, but testing following the “super chlorination” of the water system continued to show legionella within the facility’s water system.
33. According to Plaintiff Mr. Costa, as of 4:00 p.m. on October 23, 2019, the water remained shut off at Saint Elizabeths and upon information and belief, DBH has not given a precise date that it will be turned back on.
34. At 5:45 p.m. on October 23, 2019, Councilmember Vincent Gray tweeted that he had been informed by an unnamed source that “all bacteria has been eliminated” from the water system at St. Elizabeths Hospital and that “the process has already begun to restore full water service to the hospital.” According to Vincent Gray’s tweets, the “toilet are fully operational” and “[F]aucet heads are being reconnected now and that process should be fully completed by tomorrow [October 24, 2019].” Vincent Gray has shared no supporting documents, water tests, or information from DBH or Saint Elizabeths Hospital on Twitter.
35. Each of the previous dates DBH communicated to patients, their attorneys, or the public for when DBH expected to have safe running water has not been met.
36. This is the second time in three years that Saint Elizabeths Hospital has experienced an extended water outage. Defendants’ response to this second extended water
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outage indicates that they do not have an appropriate Emergency Water Supply Plan to manage extended water outages at Saint Elizabeths Hospital.
37. Plaintiffs are all indefinitely, involuntarily committed to the District’s care and will likely be committed at Saint Elizabeths for all or most of their lives. For example, Ms. Smith has been committed to Saint Elizabeth’s for approximately 17 years.
38. As discussed below, the extended water outage at Saint Elizabeths that plaintiffs continue to suffer is irreparably harming the Plaintiffs and plaintiff class. Furthermore, even if the clean water is restored in the near future, Plaintiffs and the plaintiff class will remain at risk of further irreparable harm until the Defendants remediate conditions at Saint Elizabeths, provide adequate mental health services to meet the current needs of patients, and establish an appropriate Emergency Water Supply Plan. Thus, even if the current crisis is ameliorated, Plaintiffs will still be at risk of further irreparable harm. It is also far from clear that the wrongful behavior cannot be expected recur.
Defendants Are Depriving Patients of Essential Medical and/or Mental Health Care 39. The extended water outage at Saint Elizabeths has prevented patients from
receiving appropriate and necessary care, including medical care, psychiatric care, and therapy, creating an imminent risk of irreparable harm.
40. Because of the extended water outage, Defendants closed the Treatment Mall. Patients remain on their locked wards and are not receiving appropriate group therapy, art therapy, or exercise.
41. Staff, including psychologists and psychiatrists, are not regularly attending work because of the water crisis, forcing cancelations of patient team meetings and other appointments.
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42. Defendants have severely curtailed or suspended the psychiatric care on which patients depend. Patients at Saint Elizabeths, including Plaintiffs, are receiving fewer services, and less of the services they are still receiving, than normal. The minimal services they are receiving are not appropriate or tailored to their needs.
43. DBH has not explained how it is appropriately dispensing medication, particularly those medications that need to be suspended in water. DBH has not made any statement about how they are addressing patients’ medication side effects that are related to the lack of adequate water or that need water in response, such as dry mouth and dehydration.
44. In addition to depriving patients of psychiatric care necessary on an ongoing basis, Saint Elizabeths’ staff are failing to provide other types of health care. Upon information and belief, staff are not performing routine checks of new patients for lice, bacteria, and other infections.
45. Patients have no access to dentistry and podiatry care that is typically available at Saint Elizabeths.
46. Ms. Smith has had a toothache but cannot go to the dentist. 47. Mr. Costa’s ward administrator, psychologist, psychiatrist, and therapist have all missed work during the time period while the water was shut off and have not been able to convene his team meetings. Mr. Costa has been unable to talk to his psychiatrist about switching one of his medications since the water outage occurred. 48. Mr. Costa has not been able to access behavioral therapy, anger management classes, group therapy, art therapy, or the gym since Defendants closed the Treatment Mall. 49. Mr. Costa normally gets 40 hours per week of therapy but Defendants are providing him with just 2 hours per day (10 hours per week) currently. The little therapy he is
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receiving is inappropriate: it is a competency restoration group but Mr. Costa is already competent.
50. Because there was no water, Defendants have not provided Mr. Kirkpatrick with group therapy.
51. Defendants cancelled a Narcotics Anonymous meeting that both Mr. Kirkpatrick and Mr. Dunbar attend because there was no water.
52. Defendants have not provided Mr. Dunbar with group therapy or the opportunity to exercise since the water was shut off.
The District is Depriving Patients of Essential Hygiene and Endangering Patient Safety 53. Without safe, running water, patients and staff cannot flush the toilets regularly,
wash their hands, shower, wash clothing, or drink from the water fountains. Patients at Saint Elizabeths are using bottled water, hand sanitizers, and personal care body wipes to care for their basic hygiene. Patients are permitted limited use of temporary portable showers and toilets. Clothes and linens are only washed periodically and must be sent outside of the facility to be cleaned.
Toilets 54. Patients and staff cannot regularly and routinely flush the toilets at Saint Elizabeths. Saint Elizabeths has more than 70 operating bathrooms when the facility has running water. A limited number of toilets within the facility are in use when the water is turned off. These toilets must be flushed manually by pouring water into the tanks. Staff are only flushing the toilets twice per day, leading to the accumulation of feces, urine, and menstrual blood. The toilets are overflowing and human waste is flowing onto the floors in some bathrooms. There are also a limited number of port-a-potties outside the facility which were not provided until after the water had been shut off for some time.
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55. Ms. Smith did not have access to port-a-potties for several days after the water was shut off. While she was awaiting port-a-potties, she used the indoor toilets. Staff would flush those toilets twice per day. The indoor toilets were disgusting and unclean. There were menstrual products all over the bathroom.
56. Mr. Costa’s unit, Unit 1C, normally has six toilets. Unit 1C houses 26 men. Currently all of the men on his unit must use one toilet. That toilet is flushed manually by pouring water into the tank only once a day. The toilets back up and the smell from the toilets is “disgusting, pungent, sour, and strong.”
57. Mr. Costa did not have access to a port-a-potty until about a week after the water was shut off. The port-a-potties are outside and about 200 yards from his unit. The port-apotties are not clean and they smell.
58. Mr. Kirkpatrick’s unit has an average of two usable toilets for approximately 25 people. The toilets do not have running water and are flushed by staff or patients. There is a buildup of feces on the toilet and floor. The bathroom smells.
59. Mr. Kirkpatrick did not have access to a port-a-potty until about 2-3 weeks after the water was shut off.
60. Mr. Dunbar’s unit, Unit 2A, only has 2 usable toilets for approximately 27 people. The smell of the toilets is so nasty and strong that it makes Mr. Dunbar want to vomit. Mr. Dunbar is able to secure day passes to temporarily leave the facility and during this time he tries holds his solid waste until he can use toilets outside of Saint Elizabeths grounds.
Showers 61. Patients cannot use the indoor showers at Saint Elizabeths. Patients have to bathe in portable outdoor showers. DBH secured eight portable showers for Saint Elizabeths’ entire patient population. The portable showers are clogged and dirty. The patients have to stand
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Case 1:19-cv-03185 Document 1 Filed 10/23/19 Page 12 of 23
outside in groups and take showers in rotation because they have to travel back inside the facility as a group. There is no privacy in the showers.
62. Before the outdoor showers arrived, Ms. Smith had to use wipes to clean herself because she was not permitted to shower indoors. She does not like using the wipes and does not feel clean using the wipes.
63. Ms. Smith is only permitted to use the outdoor showers on Mondays, Wednesdays and Fridays, rather than showering every day. She is not allowed to use the showers when it is raining.
64. Mr. Costa did not have access to a shower until about a week after the water was shut off. On his unit, only 8 individuals are permitted to use the portable showers per day. His unit can use the portable showers on Mondays, Wednesday, and Fridays, which means that he is only able to shower one time per week.
65. One time that Mr. Costa was permitted to shower, the water was cold. After he showered he had to stand outside in the cold temperatures while waiting for everyone to finish showering. He got a headache as a result.
66. When Mr. Costa does not have access to a shower, he has the options to clean himself with sanitary wipes or a five gallon bucket of soapy water and a wash rag. The wipes make his skin uncomfortable. Washing with a bucket is degrading and Mr. Costa has not used that option because it makes him feel like he is treated like an animal.
67. Mr. Kirkpatrick used a portable shower and had to stand outside in the cold while others finished showering. He got sick after using the portable shower, experiencing chills and a migraine.
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68. Mr. Dunbar did not have access to a portable shower for several days after the water was shut off. When he was able to access a portable shower, the water kept turning on and off.
69. The portable showers are not accessible for patients who use wheelchairs and with other mobility issues. The portable showers have steps up to them. The portable showers have narrow passageways inside. Many older patients are unable to use them.
70. Ms. Smith’s knee gave out one day while walking up the stairs to the shower. 71. Upon information and belief, the portable showers are being overseen by male security guards only. Many women at Saint Elizabeths are survivors of sexual assault and do not feel safe using the portable showers. As a result, some of the women have not showered for more than four weeks.
Other Essential Hygiene Needs 72. Ms. Smith cannot wash her hands. She must use bottled water to brush her teeth and is not always given enough water to brush her teeth. She has not washed her hair in three weeks. She cannot do laundry in the hospital and when her cloths were sent out to the laundry, some of them went missing. She currently only has one clean outfit to wear. Ms. Smith’s unit has been unusually cold while the water has been shut off. Ms. Smith’s unit smells like dead rats. 73. Mr. Costa cannot use the faucets to wash his hands, brush his teeth, or shower. The dirty toilets have attracted bugs and mosquitos that are biting him and others on his unit. 74. Mr. Kirkpatrick cannot use the water. He cannot do laundry and does not have access to a washer-dryer. He does not know when he will be able to do laundry or obtain clean clothes again.
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75. Mr. Dunbar cannot use the water and has to use bottled water to drink and to brush his teeth. Because the conditions in the bathrooms are so dirty and unhygienic, he does not feel comfortable using the bathrooms or cleaning his teeth. Some of the closed bathrooms in his unit have signs indicating that they are quarantined because of a bacterial infection. He has had his laundry sent out only once in the last three weeks. When his clothes were returned some had shrunk and they still felt dirty.
76. Mr. Dunbar is permitted to leave the facility on a day pass approximately two times per month. He normally spends time with his family. Because of the unsanitary conditions, he worries about bringing home bacteria and spreading it to his family.
The District is Depriving Patients of a Safe and Therapeutic Environment 77. The lack of water has caused a tense and stressful environment among patients and staff. Patients are confined to their units during the day instead of receiving therapy and recreation. Staff are not regularly reporting for work. 78. A restrictive psychiatric hospital setting like Saint Elizabeths must be safe, calm, predictable in its routine, and responsive to each individual’s needs for treatment in order to achieve its goals of preventing and ameliorating harm. 79. An environment that is chaotic, unpredictable, and unsafe, in which patients are not receiving individualized, continuous, intensive treatment risks traumatizing people further and exacerbating the psychiatric needs that were the basis for their admission. 80. Delays in treatment of psychiatric illness in a psychiatric facility that restricts selfdetermination and integration into community-based settings, like Saint Elizabeths, can result in feelings of isolation, hopelessness, and despair; and increased stress and anxiety.
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81. Patients, including Ms. Smith and Mr. Costa, are unable to leave their units and rooms to receive treatments or recreate. As a result, they and other patients are sleeping and dozing during the day.
82. There has been an increase in fights and physical aggression between patients following the water outage.
83. There has been an increase in the use of seclusion and restraint of the patients following the water outage.
The District Bears Responsibility for the Conditions at St. Elizabeths 84. As the director of DBH, the agency that oversees Saint Elizabeths, Defendant Bazron has the authority to “[s]upervise and direct the Department” and “[e]xercise any other powers necessary and appropriate to implement the provisions of this chapter.” D.C. Code § 71141.04. 85. These powers make Defendant Bazron the final policymaking authority with respect to responding to emergencies at St. Elizabeths. 86. Defendant Bazron is responsible for the fact that, during the water crisis, Saint Elizabeths has continued housing patients in unsafe conditions without adequate protections. 87. Defendant Bazron informed reporters that she and her team were “very, very involved in making sure that we got the [water] problem solved.” 88. Defendant Bazron further demonstrated her responsibility for Saint Elizabeths’ decision to keep patients in dangerous conditions without adequate protections by explaining and defending that approach to the public through multiple statements to journalists. 89. For example, Defendant Bazron told reporters that DBH had procured “an extensive supply of bottled water” but had continued admitting patients and declined to move
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patients to other locations. Defendant Bazron also endorsed DBH’s response, stating that “[t]hings are really moving very smoothly.
90. Additionally, Defendants displayed deliberate indifference to the risk that the response to the conditions at St. Elizabeths would result in constitutional violations. By shutting off the water at that facility, Defendants knew or should have known that they would drastically curtail access to showers, toilets, clean clothing, and medical care, and create disorder that could exacerbate patients’ mental health disabilities. The policy Defendants adopted in response to this risk was not reasonably calculated to prevent it.
CLASS ACTION ALLEGATIONS 91. The named Plaintiffs bring this suit on their own behalf and on behalf of all current Saint Elizabeths Hospital patients and all patients who will be admitted in the future while the water is shut off. 92. This class is so numerous that joinder of all members in impractical. Saint Elizabeths Hospital has approximately 270 patients currently. Because the population changes on a daily basis, it is inherently fluid and the class also includes future members whose names are not known at this time. Fed. R. Civ. P. 23(a)(1). 93. There are questions of law and fact common to all class members, including but not limited to the Defendants’ deprivation of the class members’ substantive due process rights, the Defendants’ failure to provide constitutionally safe and humane conditions to class members and the Defendants’ failure to provide appropriate medical care to class members, and the District’s violation of the class members’ rights under the Americans with Disabilities Act. Fed. R. Civ. P. 23(a)(3). 94. The named Plaintiffs will fairly and adequately represent the interests of the class. They possess a strong personal interest in the subject matter of the lawsuit and are represented by
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experienced counsel with expertise in class action litigation in federal court. Counsel have the legal knowledge and resources to fairly and adequately represent the interests of all class members in this action. Fed. R. Civ. P. 23(a)(4).
95. Defendants have acted or refused to act on grounds generally applicable to the class in that Defendants’ policies and practices of violating the Plaintiffs’ constitutional rights have affected all class members. Accordingly, final injunctive and declaratory relief is appropriate to the class as a whole. Fed. R. Civ. P. 23(b)(2).
NECESSITY FOR EMERGENCY INJUNCTIVE RELIEF 96. The Defendants have acted and, as of the time of filing, continue to act in violation of the law as described above. The named Plaintiffs and the class they seek to represent do not have an adequate remedy at law. As a result of the policies, practices, acts, and omissions of the Defendants, the named Plaintiffs, and the class they seek to represent, have suffered, are suffering, and will suffer serious, imminent, irreparable physical, mental, and emotional injuries. Such serious injuries are continuing and likely irreversible.
FIRST CLAIM FOR RELIEF: (Claim under 42 U.S.C. §1983 for violation of the Fifth Amendment—Due Process) 97. The Fifth Amendment’s Due Process Clause protects individuals in the District of Columbia from government conduct that deprives them of their constitutional rights because it is “so egregious that it may fairly be said to shock the contemporary conscience.” 98. Individuals who are committed to the District’s custody, like the named Plaintiffs and other class members, have a protected constitutional right under the Due Process Clause of the Fifth Amendment to be housed in humane conditions and to have the District take reasonable steps to guarantee their safety.
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99. Defendants’ actions are depriving class members of humane conditions by failing to provide running water which deprives them of basic sanitation including sanitary toileting, safe and sanitary showers, and clean clothes and linens, as alleged in Paragraphs 22 and 53 through 76 and by failing to maintain an appropriate Emergency Water Supply Plan after the first extended water outage, as alleged in Paragraph 36, Defendants’ actions and inactions shock the conscience and deprive class members of their constitutionally protected rights.
100. Individuals who are committed to the District’s custody, like the named Plaintiffs and other class members, have a protected constitutional right under the Due Process Clause of the Fifth Amendment to be afforded adequate medical care, including mental health care.
101. Defendants’ actions in unilaterally ceasing or altering medical care, as alleged in Paragraphs 26 and 39 through 52, departs from professionally accepted standards and/or appropriate professional judgement, and deprive class members of their constitutionally protected rights.
102. Defendants’ policies, practices, acts, and/or omissions have placed and will continue to place the named Plaintiffs and the members of the class they seek to represent at an unreasonable risk of harm as alleged in Paragraphs 1, 24, 28, 29, 38, and 39.
103. There is no reasonable justification for the Defendants’ actions. SECOND CLAIM FOR RELIEF:
(Claim against the District of Columbia under 42 U.S.C. §12131 et seq. for violation of the Americans with Disabilities Act)
104. Plaintiffs re-allege the allegations in all preceding paragraphs as though fully set forth herein.
105. The named Plaintiffs and the Plaintiff Class are individuals with disabilities within the meaning of the ADA. Their impairments substantially limit one or more major life activities, including caring for oneself, concentrating, and thinking.
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106. As adults who have been determined to require intensive inpatient care to support their recovery from serious and persistent mental illness by the District, the named Plaintiffs and the Plaintiff Class are qualified to participate in Defendants’ behavioral health programs and services. 42 U.S.C. § 12131(2).
107. The District of Columbia is a public entity as defined by Title II of the ADA. 42 U.S.C. § 12131(1).
108. The District of Columbia is failing to reasonably modify its system to avoid discrimination, including but not limited to by (i) failing to cease intakes and (ii) failing to conduct individual assessments of patients to determine whether other options exist in lieu of continued placement at Saint Elizabeths and (iii) failing to take appropriate action for Plaintiffs and other class members, including relocating within the District those patients for whom it is appropriate or providing reasonably modified services for those for whom relocating is not appropriate. 28 C.F.R. § 35.130(b)(7).
109. The District of Columbia is utilizing methods of administration, including but not limited to restricting all access to the Treatment Mall and thereby preventing planning team meetings and suspending art and music therapy, vocational training, exercise, and socialization; providing inappropriate and diminished group therapy sessions; restricting patient movement to the patient’s unit;, intermittently shutting off the water; inappropriately restricting toilets and shower use, providing inaccessible portable showers; and suspending medically necessary services such as dentistry and podiatry as alleged in ¶¶ 25, 30, 35, 36, 37, 40, 49, 65, and 73 above, that have the effect of defeating or substantially impairing the accomplishment of the objectives of Defendants’ behavioral health programs with respect to the Individual Named Plaintiffs and the Plaintiff Class. 28 C.F.R. § 35.130(b)(3)(ii).
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110. Defendants’ policies, practices, acts, and/or omissions violate the Americans with

Disabilities Act. 42 U.S.C. §12131

PRAYER FOR RELIEF

Based on the foregoing, Plaintiffs request that the Court:

111. Declare that Defendants violated Plaintiffs’ rights under the Fifth Amendment to

the U.S. Constitution;

112. Declare that Defendants violated Plaintiffs’ rights under the Americans with

Disabilities Act;

113. Order injunctive relief requiring Defendants their agents, employees, and all

persons acting in concert with or on behalf of Defendants to cease their unconstitutional and

unlawful practices, including:

a. During any extended water outage, immediate cessation of admissions at

Saint Elizabeths to the greatest extent possible;

b. Within 48 hours during any extended water outage,, conduct individual

assessments of patients by the Medical Director with input from the

patients’ treatment team, his/her attorney, and/or other supportive decision

makers as determined by patient choice to assess the effects of the current

conditions and determine whether other options exist in lieu of continued

placement at Saint Elizabeths;

c. Implement recommendations from the assessments immediately:

i

The assessment team must consider a full range of available

alternative treatment options, including discharge to a community

setting.

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ii Under no circumstances should an individual be transferred to a jail or nursing home.
iii To the extent continued placement at Saint Elizabeths’ Hospital is the only reasonable option, patients must receive medical care and therapy as scheduled and specific steps should be taken to ensure that each patient has timely and complete access to sanitation, clean water, safely prepared meals, and other basic requirements for health, safety, and privacy.
d. Conduct independent testing to ensure that the water is safe for all uses; e. Sanitize all Saint Elizabeths hospital facilities; f. Restore sanitation services and other services that were discontinued or
delayed during the extended water outage; g. Immediately resume providing all medical and mental health treatment
services, including but not limited to opening the Treatment Mall and providing all previously available services; h. Within 48 hours, conduct individual assessments of patients by the Medical Director with input from the patients’ treatment team, his/her attorney, and/or other supportive decision makers as determined by patient choice to assess the effects of the stress and trauma of living without safe, running water in the conditions described above and the deprivation of appropriate mental health services has had on patients’ mental health status and determine if changes to individual patients’ treatment plans are needed;
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i. Implement any changes and recommendations from the individualized assessments immediately;
j. Conduct regular, independent testing to ensure that the water is safe; and k. Appoint an independent monitor to advise the parties and the court about
the implementation of any injunctive relief. Order Defendants to develop and adopt an appropriate Emergency Water Supply Plan with input from community members and the District’s protection and advocacy organization. 114. Certify this case as a Class Action pursuant to Fed. R. Civ. P. 23(b)(2); 115. Designate undersigned counsel as attorneys for the certified class; 116. Award to Plaintiffs their reasonable attorney’s fees and costs, as provided by law; and 117. Grant the Plaintiffs such other relief as the Court deems just.

Dated October 23, 2019

Respectfully submitted,
/s/ Arthur B. Spitzer
Arthur B. Spitzer (D.C. Bar No. 235960) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF THE DISTRICT OF COLUMBIA 915 15th Street NW, Second Floor Washington, D.C. 20005 (202) 457-0800 aspitzer@acludc.org
Kaitlin Banner (D.C. Bar No. 1000436) Margaret Hart (D.C. Bar No. 1030528 ) Hannah Lieberman (D.C. Bar No. 336776 ) Jonathan Smith (D.C. Bar No. 396578 ) Maria Morris*
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Case 1:19-cv-03185 Document 1 Filed 10/23/19 Page 23 of 23
WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 700 14th Street, NW, Suite 400 Washington, DC 20005 Phone: (202) 319-1000 Fax: (202) 319-1010 margaret_hart@washlaw.org hannah_lieberman@washlaw.org jonathan_smith@washlaw.org maria_morris@washlaw.org
*Admitted to practice law in Alabama, New York, and California. Practicing under the supervision of DC Bar members.
Scott Michelman (D.C. Bar No. 1006945) Michael Perloff (D.C. Bar No. 1601047) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF THE DISTRICT OF COLUMBIA 915 15th Street NW, Second Floor Washington, D.C. 20005 (202) 457-0800 smichelman@acludc.org mperloff@acludc.org
John A. Freedman (D.C. Bar No. 453075) Tirzah S. Lollar (D.C. Bar No. 497295) Emily Reeder (D.C. Bar No. 252710) ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Avenue, N.W. Washington, D.C. 20004 (202) 942-5000 John.Freedman@arnoldporter.com Tirzah.Lollar@arnoldporter.com Emily.Reeder@arnoldporter.com
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 Case 1:19-cv-03185-RDM Document 30 Filed 01/21/20 Page 1 of 16
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENZO COSTA, et al., Plaintiffs,

Case No. 1:19-cv-3185 (RDM)

v.

DISTRICT OF COLUMBIA, et al.,

Defendants.

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Plaintiffs hereby move, pursuant to Fed. R. Civ. P. 23 for entry of an order determining that this action may be maintained as a class action on behalf of “all current and future Saint Elizabeths Hospital patients.” The grounds for this motion are set forth below. Plaintiffs also respectfully request that the Court appoint their undersigned counsel as Class Counsel pursuant to Fed. R. Civ. P. 23(g).

INTRODUCTION For the second time in three years, Saint Elizabeths Hospital (“Saint Elizabeths” or the “Hospital”) was without safe, running water from September 26, 2019 through at least October 23, 2019, exposing patients at the facility to harmful physical, emotional, and mental health consequences. Each of the individual plaintiffs (Enzo Acosta, Vinita Smith, Stefon Kirkpatrick, William Dunbar (collectively, the “Plaintiffs”)) and many of the other patients at the Hospital experienced unhygienic conditions and an interruption of their medical and mental health care. While this matter has not yet proceeded to discovery, it is clear even at this early juncture that this matter should proceed as a class action on behalf of the Saint Elizabeths’ patient population.

Case 1:19-cv-03185-RDM Document 30 Filed 01/21/20 Page 2 of 16
Pursuant to Local Rule 23.1(b) and Federal Rule of Civil Procedure 23(b), Plaintiffs hereby move for certification of a Rule 23(b)(2) class, and request appointment of Plaintiffs’ Counsel as Class Counsel pursuant to Rule 23(g).
The putative class consists of Saint Elizabeths’ current and future patient population. All of the members of that population are persons with mental health disabilities who are, or who will be in the future, committed to the Defendants’ care. ECF 21-2 (Decl. of K. Singh Taneja, ¶ 1). All members were injured and likely to be injured by recurrent inhumane, unsafe, and medically dangerous conditions at Saint Elizabeths and the lack of appropriate hospital administration that led to those conditions in violation of Fifth Amendment’s Due Process Clause, and the ADA, 42 U.S.C. § 12131.
This action can fairly and efficiently be adjudicated as a class action and should proceed as a class for several reasons. First, Plaintiffs’ claims that Defendants’ actions and/or inactions have deprived class members of humane conditions and subjected them to harm in violation of the Fifth Amendment’s Due Process Clause and the ADA raises common, class-wide questions, the answer to which can be resolved through common evidence: why did the water outage occur, why do water outages keep occurring, why do the outages have such a negative impact on hygienic conditions at the facility, why has patient care been so severely impacted, why are Defendants’ policies for handling water emergencies so deficient, and why shouldn’t Defendants be held responsible?
Second, Plaintiffs, on behalf of themselves and each putative class member, seek a declaration that Defendants violated Plaintiffs’ rights under the Fifth Amendment to the U.S.
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Constitution and the ADA and an injunction requiring Defendants’ agents, employees, and all persons acting in concert with or on behalf of Defendants to cease their unconstitutional and unlawful practices, as detailed at paragraph 113 of Plaintiffs’ Complaint. In particular, it is clear from the outcome of the last two water outages that there are significant deficiencies in Defendants’ policies, including its “water emergency protocol” that can only be effectively addressed through injunctive relief. That requested relief is exactly the kind of class-wide relief contemplated by Rule 23(b)(2). See Wal-Mart v. Dukes, 564 U.S. 338, 361 (2011) (“Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples of what (b)(2) is meant to capture.”) (citation and internal punctuation omitted).
Plaintiffs note that, per the requirement of Local Rule 23.1(b), this motion is being filed within 90 days of filing the Complaint.1 On January 17, 2020, Plaintiffs' counsel met and conferred with Defendants' counsel regarding this motion. Defendants' counsel stated that they opposed the motion to certify the class.
For the reasons set forth below, the Court should grant Plaintiffs’ Motion for Class Certification.
STATEMENT OF FACTS2 I. PLAINTIFFS AND THE PROPOSED CLASS
Saint Elizabeths is the District’s only public psychiatric facility for individuals with serious and persistent mental illness who need intensive inpatient care to support their recovery.
1 This motion is being filed prior to any discovery. 2 To the extent necessary, Plaintiffs can submit declarations from each of the proposed class representatives attesting to the facts discussed in this section.
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Compl. ¶ 15. The patient population of Saint Elizabeths are all individuals who are indefinitely, involuntarily committed to the District’s care, and each patient at Saint Elizabeths will likely be committed at Saint Elizabeths for all or most of their lives. Compl. ¶ 37.
The individual Plaintiffs, like the class they seek to represent, are persons with a disability or perceived to have a disability, as that term is defined in the ADA, are entitled to the protections of the ADA. 42 U.S.C. §12102(2)(A), and are indefinitely, involuntarily committed to the District’s care. Compl. ¶ 37.
Enzo Costa is thirty-eight years old and is a patient at Saint Elizabeths Hospital in Unit 1C. Compl. ¶ 9. He is diagnosed with schizophrenia, dystonia, schizo-affective disorder, and anti-social personality disorder. Id. He is indefinitely, involuntarily civilly committed to the District’s care. Compl. ¶ 37. He was a patient at Saint Elizabeths when it was without safe, running water and was exposed to conditions with severe physical, emotional, and mental health consequences. Compl. ¶¶ 40, 42, 47-49, 56-58, 64-66, 73, 81.
Vinita Smith is fifty-six years old and is a patient at Saint Elizabeths Hospital in Unit 1F. Compl. ¶ 10. She is diagnosed with schizo-affective disorder that requires medication and therapy. Id. She is indefinitely, involuntarily civilly committed to the District’s care. Compl. ¶ 37. She was a patient at Saint Elizabeths when it was without safe, running water and was exposed to conditions with severe physical, emotional, and mental health consequences. Compl. ¶¶ 40, 42, 44, 55, 62-63, 69-70, 72, 81.
Stefon Kirkpatrick is thirty years old and is a patient at Saint Elizabeths Hospital in Unit 2C. Compl. ¶ 11. He is diagnosed with psychosis disorder. Id. He is indefinitely,
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involuntarily civilly committed to the District’s care. Compl. ¶ 37. He was a patient at Saint Elizabeths when it was without safe, running water and was exposed to conditions with severe physical, emotional, and mental health consequences. Compl. ¶¶ 40, 42, 50-51, 58-59, 67, 74, 81.
William Dunbar is thirty years old and is a patient at Saint Elizabeths Hospital in Unit 2A. Compl. ¶ 12. He is diagnosed with paranoia schizophrenia. Id. He is indefinitely, involuntarily civilly committed to the District’s care. Compl. ¶ 37. He was a patient at Saint Elizabeths when it was without safe, running water and was exposed to irreparable harmful physical, emotional, and mental health consequences. Compl. ¶¶ 40, 42, 51-52, 60, 68, 75-76, 81. II. THE WATER OUTAGES AND IMPACT ON PATIENT CARE
For the second time in three years, Saint Elizabeths had an extended water outage from September 26 through at least October 23, 2019. Compl. ¶ 22. During that period, Saint Elizabeths did not have safe, running water, and the water supply at Saint Elizabeths was either completely turned off or was limited for sewage use only. Compl. ¶ 22.
On September 26, 2019, the D.C. Department of Behavioral Health (“DBH”) received preliminary lab results of a water quality test of Saint Elizabeths showing evidence of pseudomonas and legionella bacteria in the facility’s water supply. Compl. ¶ 26. Legionella bacteria is known for causing Legionnaires’ disease, which can lead to severe infections in people with weakened immune systems. Compl. ¶ 27.
In response to the bacteria found in the water supply, DBH reportedly implemented its “water emergency protocol” and turned the water off completely. Compl. ¶ 30. The extended
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water outage and its effects presented a clear risk to the health and safety of Saint Elizabeths’ patients, including Plaintiffs and class members. The extended water outage and its effects traumatized patients and exacerbated symptoms of mental illness. Compl. ¶ 24.
Plaintiffs and class members were denied appropriate medical care. During the 2019 crisis:
• The Water Outage caused a tense and stressful environment among patients and staff. Compl. ¶ 77.
• Because of the extended Water Outage, Defendants closed the Treatment Mall, patients remained in their locked wards and were not receiving appropriate group therapy, art therapy, or exercise. Compl. ¶ 40.
• Staff, including psychologists and psychiatrists, were not regularly attending work because of the water crisis, forcing cancelations of patient team meetings and other appointments. Compl. ¶¶ 39-41, 47-52, 77.
• Defendants severely curtailed or suspended the psychiatric care on which patients depend. Patients at Saint Elizabeths, including Plaintiffs, received fewer services. The minimal services they received were not appropriate or tailored to their needs. Compl. ¶ 42.
• Patients had difficulty receiving medications (particularly those that need to be suspended in water) and addressing side effects (particularly dry mouth and dehydration). Compl. ¶¶ 43, 47.
• Patients were confined to their units during the day instead of receiving therapy and recreation. Compl. ¶¶ 77, 81. 6

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• There was an increase in fights and physical aggression between patients following the water outage. Compl. ¶ 82.
• There has been an increase in the use of seclusion and restraint of the patients following the water outage. Compl. ¶ 83.
• Saint Elizabeths staff did not perform routine checks of new patients for lice, bacteria, and other infections. Compl. ¶ 43.
• Patients had no access to dentistry and podiatry care that is typically available at Saint Elizabeths. Compl. ¶ 45.
Plaintiffs and class members were denied basic hygienic conditions. During the water crisis, patients and staff were not able to flush the toilets regularly, wash their hands, shower, wash clothing, or drink from the water fountains. Compl. ¶¶ 53, 72-75. Patients at Saint Elizabeths used bottled water, hand sanitizers, and personal care body wipes to care for their basic hygiene. Compl. ¶ 53. Patients were permitted limited use of temporary portable showers and toilets. Compl. ¶¶ 53-71. Clothes and linens were only washed periodically and were sent outside of the facility to be cleaned. Compl. ¶ 73.
Both the interruption in health care and the unhygienic conditions negatively impacted the patients of Saint Elizabeths as a class. Moreover, because this is the second time in three years that Saint Elizabeths had an extended water outage and there are no apparent procedures in place to ensure that plaintiffs receive adequate health care and safe conditions, this harm is likely to reoccur. A restrictive psychiatric hospital setting like Saint Elizabeths must always be safe, calm, predictable in its routine, and responsive to each individual’s needs for treatment in order to achieve its goals of preventing and ameliorating harm. Compl. ¶ 78. An environment that is
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chaotic, unpredictable, and unsafe, in which patients are not receiving individualized, continuous, intensive treatment risks traumatizing people further and exacerbating the psychiatric needs that were the basis for their admission. Compl. ¶ 79.
ARGUMENT I. PLAINTIFFS SATISFY THE REQUIREMENTS OF RULE 23(A)
As demonstrated below, the proposed class satisfies each of the four requirements in Rule 23(a): numerosity, commonality, typicality, and adequacy. See Fed. R. Civ. P. 23(a).
A. The Proposed Class Satisfies Numerosity To satisfy Rule 23(a)(1), a class must be “so numerous that joinder of all members is
impracticable.” Fed. R. Civ. P. 23(a)(1). “Numerosity is satisfied” with credible evidence that “a proposed class has at least forty members.” See Richardson v. L’Oreal USA, Inc., 991 F. Supp. 2d 181, 196 (D.D.C. 2013); see also Frazier v. Consol. Rail Corp., 851 F.2d 1447, 1456 n.10 (D.C. Cir. 1988) (discussing appellate courts’ acceptance of the 40-member threshold). The proposed class meets this standard.
The named Plaintiffs bring this suit on their own behalf and on behalf of all current Saint Elizabeths Hospital patients and all patients who will be admitted in the future. This class is so numerous that joinder of all members in impractical. Saint Elizabeths Hospital has approximately 270 patients. Compl. ¶ 92. Because the population changes on a daily basis, it is inherently fluid and the class also includes future members whose names are not known at this time. Fed. R. Civ. P. 23(a)(1).
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The number of individuals in Plaintiffs’ proposed class therefore significantly exceeds the presumptive forty-person standard. See Richardson, 991 F. Supp. 2d at 196. Numerosity is plainly satisfied.
B. The Proposed Class Satisfies Commonality Rule 23(a)(2) requires the existence of “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “Commonality . . . requires the court to determine whether there is at least one question of law or fact common to the class.” Moore v. Napolitano, 926 F. Supp. 2d 8, 29 (D.D.C. 2013) (emphasis added). “Factual variations among the class members will not defeat the commonality requirement, so long as a single aspect or feature of the claim is common to all proposed class members.” Id. As the Supreme Court explained in Wal-Mart Stores, Inc. v. Dukes, “for purposes of Rule 23(a)(2)[,] even a single common question will do.” 564 U.S. 338, 359 (2011) (internal quotation marks and citations omitted). Commonality is satisfied for a due process claim where all members of the class would be affected by resolution of the constitutionality of the policy as it was applied during the class period. See Daskalea v. Wash. Humane Soc., 275 F.R.D. 346, 374 (D.D.C.2011). Commonality is satisfied for a disability discrimination claim under the ADA where a plaintiff alleging discrimination against a class shows discrimination against a particular group of which the plaintiff is member, plus some additional factor that permits a court to infer that members of the class suffered from a common policy of discrimination. See Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 239 F.R.D. 9, 26 (D.D.C.2006) (internal quotation marks and citations omitted) .
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A common question is one that “is such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 564 U.S. at 350. What matters to class certification is “the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 350. Where plaintiffs allege wrongdoing by the defendant, commonality is established where plaintiffs “provide significant proof that there exists a common policy or practice that is the alleged source of the harm to class members.” Thorpe v. District of Columbia, 303 F.R.D. 120, 145 (D.D.C. 2014) (internal quotations and citations omitted).
All members of the class were subjected to the inhumane conditions during the Water Outage as a result of Defendants’ deficient water emergency protocols and policies. Plaintiffs had limited opportunities to shower, were provided only with unsanitary toilets that did not flush, were confined to their rooms and units where normal standards of cleanliness were not maintained, and had their psychiatric and medical care severely limited.
The Defendants’ water emergency protocols and policies (or lack thereof) injured or will injure each and every class member by virtue of their failure to implement an effective system of maintaining a safe water supply, remediating problems in the water supply, and maintaining safe and sanitary conditions at the Hospital during a water outage. Thus, Plaintiffs’ claims raise the following common questions: (1) why did the water outage occur? (2) why do water outages keep occurring? (3) why do the outages have such a negative impact on hygienic conditions at the facility? (4) why has patient care been so severely impacted? (5) why are Defendants’ policies for handling water emergencies so deficient? and (6) why shouldn’t Defendants be held
10

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responsible? True or false, as held by this Court in Thorpe, “resolution of these common contentions will generate common answers for the entire class and resolve issues that are central (and potentially dispositive) to the validity of each plaintiff’s claim and the claims of the class as a whole.” Thorpe, 303 F.R.D. at 146. Commonality is plainly satisfied.
C. The Proposed Class Representatives Have Claims Typical of the Class Rule 23(a)(3) “requires that the claims . . . of the representative parties be typical of the claims . . . of the class.” Fed. R. Civ. P. 23(a)(3). “A plaintiff’s claims can be typical of those of the class even if there is some factual variation between them.” Encinas v. J.J. Drywall Corp., 265 F.R.D. 3, 8 (D.D.C. 2010). “Rule 23 does not require that the representative plaintiffs endured precisely the same injuries that may have been sustained by other class members, only that the harm complained of be common to the class, and that the named plaintiffs demonstrate a personal interest or threat of injury that is real and immediate, not conjectural or hypothetical.” Johnson v. District of Columbia, 248 F.R.D. 46, 53 (D.D.C. 2008). Typicality is therefore satisfied if (1) “each class member’s claim arises from the same course of events that led to the claims of the representative parties;” and (2) “each class member makes similar legal arguments to prove the defendant’s liability.” Greenberg v. Colvin, 63 F. Supp. 3d 37, 44 (D.D.C. 2014). The Plaintiffs’ claims meet this standard. First, the Plaintiffs and each member of the proposed class were subjected to Defendants’ same actions and inactions. All class members were, and are likely in the future, deprived of the basic medical care and safe and sanitary conditions at Saint Elizabeths because of extended water
11

Case 1:19-cv-03185-RDM Document 30 Filed 01/21/20 Page 12 of 16
outages. Accordingly, the “representatives have suffered injuries in the same general fashion as absent class members.” Hardy v. District of Columbia, 283 F.R.D. 20, 24-25 (D.D.C. 2012).
Second, the Plaintiffs’ claims are shared by all the members. Each class member brings the exact same claims under the Fifth Amendment’s Due Process Clause and the ADA. Every putative class member relies upon the same basic theory of liability—that the water conditions at Saint Elizabeths and Defendants’ deficient response to those conditions have affected and exposed patients to irreparable, harmful physical, emotional, and mental health consequences. See Compl. ¶¶ 19-83. Every putative class member seeks the same injunctive relief to order Defendants to cease their unconstitutional and unlawful practices. See id. This satisfies Rule 23(a)(3)’s typicality requirement.
D. The Proposed Class Representatives and Class Counsel Are Adequate Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This requirement contains two criteria: “‘1) the named representative must not have antagonistic or conflicting interests with the unnamed members of the class, and 2) the representative must appear able to vigorously prosecute the interests of the class through qualified counsel.’” Moore, 926 F. Supp. 2d at 31 (quoting Twelve John Does v. District of Columbia, 117 F.3d 571, 575-76 (D.C. Cir. 1997)). The named Plaintiffs will fairly and adequately represent the interests of the class. They possess a strong personal interest in the subject matter of the lawsuit and are represented by experienced counsel with expertise in class action litigation in federal court. Moreover, the claims of these individuals mirror the claims of the class. Therefore, the proposed class
12

Case 1:19-cv-03185-RDM Document 30 Filed 01/21/20 Page 13 of 16
representatives’ interests are not antagonistic to the interests of absent class members. See Thorpe v. District of Columbia, 303 F.R.D. 120, 150 (D.D.C. 2014) (finding “no real conflict of interest, since the scope of the current litigation is limited to a systemic challenge”).
In addition, Plaintiffs’ proposed class counsel—the American Civil Liberties Union Foundation of the District of Columbia (“ACLU”), Washington Lawyers’ Committee for Civil Rights and Urban Affairs (“WLC”), and Arnold & Porter LLP—can fairly and adequately represent the class. Each of the three organizations have been appointed as class counsel in numerous matters. Moreover, ACLU, WLC and Arnold & Porter LLP have committed and will continue to commit substantial resources to prosecuting this case. Accordingly, Rule 23(a)(4)’s adequacy requirement in the instant action is satisfied. II. THE CLASS SATISFIES THE REQUIREMENTS OF RULE 23(B)(2)
To certify a class, a plaintiff must also satisfy at least one of the three types of classes described in Rule 23(b). Plaintiffs seek certification under Rule 23(b)(2).
Certification under Rule 23(b)(2) is appropriate where “(1) the defendant’s action or refusal to act [is] generally applicable to the class; and (2) plaintiffs . . . seek final injunctive relief or corresponding declaratory relief on behalf of the class.” Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 33, 47 (D.D.C. 2007). See also DL v. D.C., 860 F.3d 713, 723 (D.C. Cir. 2017) (same). That is the case here, and Plaintiffs’ requests for declaratory and injunctive relief easily satisfy both of those requirements.
First, the water outage affected patient care and hygienic conditions throughout the facility, and affected all of Saint Elizabeths’ patients. All patients were exposed to conditions that deprived them of, among other things, proper medical care, hygiene, and psychiatric care.
13

Case 1:19-cv-03185-RDM Document 30 Filed 01/21/20 Page 14 of 16
These injuries stemmed from Defendants’ adherence to a set of policies, procedures, and protocols (including the water emergency protocol). Thus, Defendants’ actions or inactions were generally applicable to the class for purposes of Rule 23(b)(2).
Second, the Supreme Court has stated “[t]he key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted.” Dukes, 564 U.S. at 360 (internal quotations and citations omitted). Rule 23(b)(2) certification is allowed when “a single injunction or declaratory judgment would provide relief to each member of the class.” Id. The declaratory and injunctive relief sought here is class-wide in nature, and would provide relief to each class member.
Plaintiffs seek a declaration that Defendants violated Plaintiffs’ rights under the Fifth Amendment to the U.S. Constitution and the ADA and an injunction requiring Defendants’ agents, employees, and all persons acting in concert with or on behalf of Defendants to cease their unconstitutional and unlawful practices.
Plaintiffs’ requested injunctive relief consists entirely of orders that would apply to the whole facility and therefore to the entire class—including a restriction on admissions during water outages (which affects the entire population’s access to services when those services are limited), water testing, maintenance of therapeutic services and sanitary conditions, and development of an emergency protocol. See Compl. ¶ 113. Although phrased in terms of individuals, the request for individualized assessments, id. at § 113(b), likewise constitutes classwide relief, in that this releif would require Defendants to conduct an assessment for each member of the class -- i.e., the entire patient population. That the results of individual reviews
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may vary does not dilute the across-the-board nature of the mandate to assess all patients. Plaintiffs are asking here for a classwide review, not for the Court to order Defendants to dictate a uniform outcome for each review. Thus, this remedy, like the others requested, would provide relief to the entire class.

CONCLUSION For the foregoing reasons, Plaintiffs respectfully ask this Court to certify the proposed class under Rule 23(b)(2) and appoint Plaintiffs’ Counsel as Class Counsel pursuant to Rule 23(g).

Dated: January 21, 2020

Respectfully submitted,

/s/ John A. Freedman John A. Freedman (D.C. Bar No. 453075) Tirzah S. Lollar (D.C. Bar No. 497295) Brian A. Vaca (D.C. Bar No. 888324978) ARNOLD & PORTER LLP 601 Massachusetts Ave., NW Washington, D.C. 20001 Tel.: (202) 942-5000 Fax: (202) 942-5999 John.Freedman@aporter.com Tirzah.Lollar@arnoldporter.com Brian.Vaca@arnoldporter.com
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) Michael Perloff (D.C. Bar No. 1601047) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF THE DISTRICT OF COLUMBIA 915 15th Street NW, Second Floor Washington, D.C. 20005 (202) 457-0800 aspitzer@acludc.org smichelman@acludc.org mperloff@acludc.org
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Case 1:19-cv-03185-RDM Document 30 Filed 01/21/20 Page 16 of 16
Kaitlin Banner (D.C. Bar No. 1000436) Margaret Hart (D.C. Bar No. 1030528 ) Hannah Lieberman (D.C. Bar No. 336776 ) Jonathan Smith (D.C. Bar No. 396578 ) Maria Morris* WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 700 14th Street, NW, Suite 400 Washington, DC 20005 Phone: (202) 319-1000 Fax: (202) 319-1010 Kaitlin_banner@washlaw.org margaret_hart@washlaw.org hannah_lieberman@washlaw.org jonathan_smith@washlaw.org maria_morris@washlaw.org *Admitted to practice law in Alabama, New York, and California. Practicing under the supervision of DC Bar members.
16

 
 Case 1:19-cv-03185-RDM Document 39 Filed 04/18/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENZO COSTA, et al., Plaintiffs,
v. DISTRICT OF COLUMBIA, et al.,
Defendants.

Case No. 1:19-cv-3185 (RDM)

PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER
Plaintiffs, by and through counsel, and pursuant to Rule 65 of the Federal Rules of Civil
Procedure, Local Rules 7 and 65.1, and the Court’s April 17, 2020 Minute Order, hereby move for
a temporary restraining order. A statement of points and authorities is support of the motion and
a proposed order accompanies this motion.
Dated: April 18, 2020
Respectfully submitted,
/s/ John A. Freedman John A. Freedman (D.C. Bar No. 453075) Tirzah S. Lollar (D.C. Bar No. 497295) Brian A. Vaca (D.C. Bar No. 888324978) ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Avenue, N.W. Washington, D.C. 20004 (202) 942-5000 John.Freedman@arnoldporter.com Tirzah.Lollar@arnoldporter.com Brian.Vaca@arnoldporter.com
Kaitlin Banner (D.C. Bar No. 1000436) Margaret Hart (D.C. Bar No. 1030528 ) Hannah Lieberman (D.C. Bar No. 336776 )

Case 1:19-cv-03185-RDM Document 39 Filed 04/18/20 Page 2 of 2
Jonathan Smith (D.C. Bar No. 396578 ) WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 700 14th Street, NW, Suite 400 Washington, DC 20005 Phone: (202) 319-1000 Fax: (202) 319-1010 kaitlin_banner@washlaw.org margaret_hart@washlaw.org hannah_lieberman@washlaw.org jonathan_smith@washlaw.org
Scott Michelman (D.C. Bar No. 1006945) Arthur B. Spitzer (D.C. Bar No. 235960) Michael Perloff (D.C. Bar No. 1601047) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF THE DISTRICT OF COLUMBIA 915 15th Street NW, Second Floor Washington, D.C. 20005 (202) 457-0800 smichelman@acludc.org aspitzer@acludc.org mperloff@acludc.org
CERTIFICATE OF COUNSEL
Pursuant to Local Rule 65.1(a), counsel hereby certifies that actual notice of the application for a temporary restraining order and copies of all pleadings and papers filed in the action to date and in support of this application have been furnished to opposing counsel via the ECF system at or before 12:00 noon on April 18, 2020, and that actual notice of the time of making the application has been provided to all parties by the Court via minute order of 5:17 pm on April 17, 2020.
Pursuant to Local Rule 65.1(b), counsel hereby certifies that this application has been filed outside business hours pursuant to the discussion at the April 17, 2020 hearing and the Court’s April 17, 2020 minute order.
/s/ John A. Freedman John A. Freedman
2

Case 1:19-cv-03185-RDM Document 39-1 Filed 04/18/20 Page 1 of 43
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENZO COSTA, et al., Plaintiffs,
v. DISTRICT OF COLUMBIA, et al.,
Defendants.

No. 1:19-cv-3185 (RDM)

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR A TEMPORARY RESTRAINING ORDER

Case 1:19-cv-03185-RDM Document 39-1 Filed 04/18/20 Page 2 of 43

TABLE OF CONTENTS

Page(s)

INTRODUCTION ......................................................................................................................1

STATEMENT OF FACTS..........................................................................................................5

1. Saint Elizabeths Hospital and its Patients .............................................................5

2. The 2020 COVID-19 Pandemic ...........................................................................6

3. Risk of Infection at Saint Elizabeths Hospital.......................................................9

4. The COVID-19 Outbreak at Saint Elizabeths Hospital .......................................10

5. Conditions at Saint Elizabeths Hospital ..............................................................11

a. Social Distancing and Distribution of Masks.................................................11

b. Screening and Testing...................................................................................13

c. Medical Isolation and Quarantine Procedures................................................14

d. Visitor and New Patient Procedures ..............................................................14

e. Psychiatric treatment during the outbreak......................................................15

6. Failure of Emergency Planning/Procedures ........................................................16

a. Transfers back and forth to area hospitals......................................................16

b. Staff absences ...............................................................................................16

ARGUMENT ............................................................................................................................ 16

1. Plaintiffs Are Likely to Succeed on the Merits of Their Claim............................18

2. Plaintiffs Will Suffer Irreparable Harm Unless Defendants Are Enjoined from Following a Policy that Will Allow them to be Housed in Unconstitutional Conditions in the Future.....................................................................................26

3. Enjoining Defendants from Failing to House and Treat Involuntarily Committed Persons in Conditions that Meet the Most Basic Standard of Decency Will Not Substantially Injure Defendants or Other Interested Parties ................................28

4. A TRO Will Serve the Public Interest.................................................................31

REQUESTED REMEDY..........................................................................................................31

Case 1:19-cv-03185-RDM Document 39-1 Filed 04/18/20 Page 3 of 43
TABLE OF AUTHORITIES
Page(s)
Cases
Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014) ...........................................................................................17
Abdah v. Bush, No. 04-cv-1254, 2005 WL 711814 (D.D.C. Mar. 29, 2005) .................................................31
Alexander v. Choate, 469 U.S. 287, 301 (1985) ....................................................................................................29
Basank v. Decker, No. 20-cv-2518 (AT), 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020) ...................................23
Bell v. Wolfish, 441 U.S. 520 (1979) ............................................................................................................18
Bolling v. Sharpe, 347 U.S. 497 (1954) ............................................................................................................19
Brown v. District of Columbia, 928 F.3d 1070, 1073 (D.C. Cir. 2019) .................................................................................18
Brown v. Plata, 563 U.S. 493 (2011) ...................................................................................................... 20, 26
Caldwell v. Caesar, 150 F. Supp. 2d 50 (D.D.C. 2001) .........................................................................................0
Chatman-Bey v. Thornburgh, 864 F.2d 804 (D.C. Cir. 1988) (en banc)..............................................................................17
Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Justice, 846 F.3d 1235 (D.C. Cir. 2017) ...........................................................................................17
City of Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983) ............................................................................................................19
Cty. of Sacramento v. Lewis, 523 U.S. 833 (1998) ............................................................................................................19
Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017) ..................................................................................................19
ii

Case 1:19-cv-03185-RDM Document 39-1 Filed 04/18/20 Page 4 of 43
Davenport v. Int’l Brotherhood of Teamsters, 166 F.3d 356 (D.C. Cir. 1999) .............................................................................................16
DeShaney v. Winnebago Cnty. Dep’t of Social Servs., 489 U.S. 189 (1989) ...................................................................................................... 18, 19
Doe v. District of Columbia, 206 F. Supp. 3d 583 (D.D.C. 2016) .....................................................................................19
Feliciano v. Gonzales, 13 F. Supp. 2d 151 (D.P.R. 1998)........................................................................................24
Gates v. Cook, 376 F.3d 323 (5th Cir. 2004) ...............................................................................................20
Gordon v. Holder, 632 F.3d 722 (D.C. Cir. 2011) .............................................................................................17
Harvey v. District of Columbia, 798 F.3d 1042 (D.C. Cir. 2015) ...........................................................................................19
*Helling v. McKinney, 509 U.S. 25 (1993) .................................................................................................. 20, 21, 22
Henrietta D. v. Bloomberg, 331 F.3d. 261, 275 (2d Cir,.2003)........................................................................................29
Hernandez v. County of Monterey, 110 F. Supp. 3d 929 (N.D. Cal. 2015)..................................................................................24
Hudson v. Hardy, 424 F.2d 854 (D.C. Cir. 1970) .............................................................................................17
Hutto v. Finney, 437 U.S. 678 (1978) ............................................................................................................17
In re: Court Operations in Exigent Circumstances Created by the COVID-19 Pandemic, Standing Order No. 20-9 .....................................................................................................23
In the Matter of the Request to Commute or Suspend County Jail Sentences, Case No. 84230 (N.J. March 22, 2020)................................................................................23
Jordan v. District of Columbia, 161 F. Supp. 3d 45 (D.D.C. 2016) .......................................................................................18
Joy v. Healthcare CMS, 534 F. Supp. 2d 482 (D. Del. 2008) .....................................................................................24
iii

Case 1:19-cv-03185-RDM Document 39-1 Filed 04/18/20 Page 5 of 43
Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015) ........................................................................................................18
Lamprecht v. F.C.C., 958 F.2d 382 (D.C. Cir. 1992) .............................................................................................31
Long v. Benson, No. 08-0026, 2008 U.S. Dist. LEXIS 109917, 2008 WL 4571904, at *2 (N.D. Fla. 2008)............................................................................................................................25
McBride v. Deer, 240 F.3d 1287 (10th Cir. 2001)............................................................................................20
Milliken v. Bradley, 433 U.S. 267 (1977) ............................................................................................................17
Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) ...........................................................................................26
Mitchell v. Cuomo, 748 F.2d 804 (2d Cir. 1984) ................................................................................................26
Moses v. District of Columbia, 741 F.Supp.2d 123 (D.D.C. 2010) .......................................................................................19
*Olmstead v. L. C. by Zimring, 527 U.S. 581 (1999) .......................................................................................... 18, 25, 26, 27
Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) .............................................................................................16
Shimon v. Dep’t of Corr. Servs. for N.Y., No. 93-cv-3144 (DC), 1996 WL 15688 (S.D.N.Y. Jan. 17, 1996) ........................................24
Simms v. District of Columbia, 872 F. Supp. 2d 90 (D.D.C. 2012) .......................................................................................31
Singh v. Carter, 168 F. Supp. 3d 216 (D.D.C. 2016) .....................................................................................17
Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1 (1971) ................................................................................................................17
Tennessee v. Lane, 541 U.S. 509, 511 (2004) ....................................................................................................29
United States v. Garlock, No. 18-cr-418 (VC), 2020 WL 1439980 (N.D. Cal. Mar. 25, 2020) .....................................23
iv

Case 1:19-cv-03185-RDM Document 39-1 Filed 04/18/20 Page 6 of 43
United States v. Stephens, No. 15-cr-95 (AJN), 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020)......................................23
Walker v. Schult, 717 F.3d 119 (2d Cir. 2013) ................................................................................................20
Williams v. Griffin, 952 F.2d 820 (4th Cir. 1991) ...............................................................................................20
Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) ................................................................................................................16
*Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452 (1982) ................................................................ 19, 20, 28, 29
Constitutional Provisions & Statutes
Fifth Amendment ................................................................................................................ 18, 19
Eighth Amendment ............................................................................................................. 19, 24
Fourteenth Amendment.............................................................................................................19
42 U.S.C. § 1983.......................................................................................................................17
Amercians with Disabilities Act, 42 U.S.C. § 12101 et seq...................................... 17, 18, 25, 29
Other Authorities
Katie Blocker, Grateful to be alive: Ernesto Castro lives to tell his story about surviving COVID-19, UCHEALTH TODAY (Apr. 1, 2020), https://www.uchealth.org/today/grateful-to-be-alive-after-covid-19-ernestocastro-lives-to-tell-story-about-life-on-a-ventilator/ ...............................................................8
CTRS. DISEASE CONTROL & PREVENTION, Cases in U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. (last visited Apr. 16, 2020) ................................................................................................ 2, 6
CTRS. DISEASE CONTROL & PREVENTION, CDC’s role in helping cruise ship travelers during the COVID-19 pandemic (Apr. 4, 2020), https://www.cdc.gov/coronavirus/2019-ncov/travelers/cruise-ship/what-cdcis-doing.html .......................................................................................................................13
CTRS. DISEASE CONTROL & PREVENTION, CovidView: A Weekly Surveillance Study of of U.S. COVID-19, Mortality, https://www.cdc.gov/coronavirus/2019-ncov/coviddata/covidview/index.html#mortality (last visited Apr. 16, 2020) ..........................................8
v

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CTRS. DISEASE CONTROL & PREVENTION, 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 ................. 13, 21
CTRS. DISEASE CONTROL & PREVENTION, Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) — United States, February 12–March 16, 2020 tbl. (2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm?s_cid=mm6912e 2_w. ......................................................................................................................................7
CTRS. DISEASE CONTROL & PREVENTION, Office of Public Health Preparedness and Response, Public Health Workbook: To Define, Locate, and Reach Special, Vulnerable, and At-risk Populations in an Emergency, at 6 https://emergency.cdc.gov/workbook/pdf/ph_workbookfinal.pdf (last accessed Apr. 14, 2020) .......................................................................................................................3
Kenneth Chang, A Different Way to Chart the Spread of Coronavirus, N.Y. TIMES (Mar. 20, 2020) .....................................................................................................................7
Pauline W. Chen, The Calculus of Coronavirus Care, N.Y. TIMES (Mar. 20, 2020).....................8
Dist. of Columbia Dep’t of Behavioral Health Policy “Individual’s Admission and Discharge,” Policy No. 100.00 ..............................................................................................6
Dist. of Columbia Dep’t of Human Servs., Cornoavirus Data https://coronavirus.dc.gov/page/coronavirus-data ..................................................................2
Dist. of Columbia Dep’t of Human Servs., Human Services Agency COVID-19 Case Data, https://coronavirus.dc.gov/page/human-services-agency-covid-19case-data ...................................................................................................................... passim
Editorial Board, Nursing homes are in the pandemic’s crosshairs. They can’t be neglected. WASHINGTON POST (Apr. 13, 2020), https://www.washingtonpost.com/opinions/nursing-homes-are-in-thepandemics-crosshairs-they-cant-be-neglected/2020/04/13/7341919a-7db011ea-a3ee-13e1ae0a3571_story.html ...................................................................................10
Exec. Order No. 9994, 85 Fed. Reg. 15337 (Mar. 13, 2020), available at https://www.govinfo.gov/content/pkg/FR-2020-03-18/pdf/2020-05794.pdf ......................... 23
Leah Groth, Is Diarrhea a Symptom of COVID-19? New Study Says Digestive Issues May Be Common With Coronavirus, HEALTH (Mar. 20, 2020), https://www.health.com/condition/infectious-diseases/coronavirus/is-diarrheaa-symptom-of-covid-19 .........................................................................................................8
Mayor’s Order 2020-046, § I(C) (Mar. 11, 2020) ................................................................ 22, 23
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Mayor’s Order 2020-063 (Apr. 15, 2020) D.C. Reg. Vol. 67, 16 .................................................3 Lizzie Presser, A Medical Worker Describes Terrifying Lung Failure From
COVID-19 — Even in His Young Patients, PROPUBLICA, March 21, 2020, available at https://www.propublica.org/article/a-medical-worker-describes-terrifying-lung-failure-from-covid19-even-in-his-young-patients ........................................... 7 Graham Readfern, What happens to people’s lungs when they get coronavirus?, GUARDIAN (Apr. 14, 2020), https://www.theguardian.com/world/2020/apr/15/what-happens-to-yourlungs-with-coronavirus-covid-19 ...........................................................................................7 Neeltje van Doremalen et al., Correspondence, Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1, New Eng. J. Med. (Mar. 17, 2020) ..................................................................................................................................... 7 11 C. Wright & A. Miller, Federal Practice and Procedure § 2948.1 (1973)...............................26 WORLD HEALTH ORG, CORONAVIRUS DISEASE 2019 (COVID-19) SITUATION REPORT-46 p. 2 (2020) ..........................................................................................................9 Tian-Yuan Xiong et al., Coronaviruses and the Cardiovascular System: Acute and Long-Term Implications, EURO. HEART J., 231 (2020) ....................................................8 Hao Yao, et al., Patients with mental health disorders in the COVID-19 epidemic, The Lancet, Vol. 7, Issue 4, at e21 (Apr. 1, 2020), https://doi.org/10.1016/S2215-0366(20)30090-0 ............................................................... 4, 9
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INTRODUCTION This motion reflects the latest chapter in a continuing saga characterized by Defendants’ abject failure to protect the health of the patients entrusted to its care at Saint Elizabeths Hospital in light of recognized, life-threatening dangers. Initially, Plaintiffs filed a Complaint to remedy Defendants’ failure to have in place an adequate emergency plan — a failure that interrupted the medical care of Plaintiffs and other patients at Saint Elizabeths and placed these patients at risk by forcing them to live in unsanitary conditions without running water for 28 days after Defendants discovered that the water supply was contaminated with legionella and other bacteria. Now, Defendants’ persistent apathy toward emergency planning has caused the rapid and deadly spread of COVID-19 among the patients and staff at Saint Elizabeths, already resulting in four deaths and dozens of confirmed infections. To curb this escalating danger, Plaintiffs seek a temporary restraining order requiring Defendants to take immediate steps, as set forth below, to ensure that patients are appropriately protected and, where possible, released or moved to places where they may continue to receive medical care in a safer and healthier environment. As of April 16, 2020, at least 33 individuals in the care of Saint Elizabeths Hospital, as well as at least 51 of the hospital’s staff, have tested positive for COVID-19.1 Four have died. And a far greater number of individuals are symptomatic – 74 patients are currently in isolation or quarantine due to exposure or symptoms, and 82 staff are out related to the virus.2 This is remarkable given that the District reported the first COVID-19 cases at St. Elizabeths on just April 1.3 Like other “congregate” environments where people live, eat, and sleep closely together (e.g.,

1 Dist. of Columbia Dep’t of Human Servs., Human Services
https://coronavirus.dc.gov/page/human-services-agency-covid-19-case-data 2 Id. 3 Id.

Agency

COVID-19

Case

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ships, nursing facilities, correctional facilities), the virus’s exponential spread through Saint
Elizabeths appears to be even faster than the spread that is happening locally, nationally, and
around the globe. The virus appears to be spreading fastest in correctional facilities like Rikers’
Island in New York and Cook County jail in Illinois. Indeed, as of April 15, 2020, the District of
Columbia has reported 2,058 cases of COVID-19 and at least 67 deaths; the number of cases is doubling approximately every six days.4
The methods for containing the contagion have been well-publicized. The Centers for
Disease Control and Prevention (“CDC”) and other public health experts have advised that the
best method to limit transmission of the virus is to avoid gatherings, practice “social distancing”
(a minimum of six feet between people), engage in meticulous personal hygiene, expand screening
and testing, isolate symptomatic and exposed individuals, and quarantine of known cases. For
individuals in facilities like Saint Elizabeths, the CDC further recommends that if the “facility
cannot fully implement all recommended precautions” residents with “known or suspected COVID-19 . . . should be transferred to another facility that is capable of implementation”5 In
accordance with that guidance, and in response to the increasing numbers of confirmed cases of
COVID-19 in Washington, D.C., Mayor Bowser has issued a series of executive orders that carry
the force of law and include criminal penalties for those who do not follow these basic public
health practices. The Mayor’s orders relied, in part, on the following findings: This Order is issued based on the increasing number of confirmed cases of COVID19 within Washington, DC, and throughout the metropolitan Washington region.
4As of April 13, 2020, there were 554,704 cases and almost 22,000 deaths attributable to COVID-19 reported in the United States, and more than 1,773,084 people have been diagnosed with COVID-19 in 213 countries or territories around the world and 111,652 have died as a result. Centers for Disease Control & Prevention (“CDC”), “Coronavirus Disease 2019 (‘COVID-19’): Cases in U.S.,” https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-inus.html (last accessed Apr. 14, 2020); WHO Website 5 CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2019 Nursing Homes & Long-Term Care Facilities, https://www.cdc.gov/coronavirus/2019-ncov/hcp/long-termcare.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fhealthcarefacilities%2Fprevent-spread-in-long-term-care-facilities.html.
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Scientific evidence and public health practices show that the most effective approach to slowing the community transmission of communicable diseases like COVID-19 is through limiting public activities and engaging in social distancing. . .. Medical and public health experts agree that COVID-19 is easily transmitted and it is essential that its spread be slowed to protect the ability of public and private health care providers to handle the expected influx of ill patients and safeguard public health and safety. . .. Because of the risk of the rapid spread of the virus, and the need to protect all members of Washington, DC, and the region, especially residents most vulnerable to the virus, and local health care providers and emergency first responders, this Order requires the temporary closure of the on-site operation of all non-essential businesses and implements a prohibition on large gatherings.
In response to the burgeoning crisis at Saint Elizabeths, on April 15, Mayor Bowser issued
Order 2020-063, which requires health care facilities, including Saint Elizabeths Hospital, to take certain steps to manage the COVID-19 pandemic.6 The Order details steps the facility must take
to, among other things, maintain social distancing among residents, restrict visitors from entering
the facility, manage symptomatic staff, quarantine or isolate symptomatic or exposed patients, and develop a continuity of operations plan.7 To date, Defendants have come woefully short of
performing these steps.
Contrary to District of Columbia policy and despite CDC and D.C. Department of Health
guidance, Defendants have failed to protect D.C. residents most vulnerable to the virus. Medical
and mental health professionals have consistently urged that individuals with mental disorders require “priority attention” in this kind of emergency.8 Members of the proposed class, some of
whom suffer from psychiatric conditions such as schizophrenia, often have compromised
6 Extensions of Public Emergency and Public Health Emergency and Measures to Protect Vulnerable Populations During the Covid-19 Public Health Emergency, D.C. M. O. 2020-063, D.C. Reg Vol 67, 16 (April 15, 2020). 7 Id. 8 CTRS. DISEASE CONTROL & PREVENTION, Office of Public Health Preparedness and Response, Public Health Workbook: To Define, Locate, and Reach Special, Vulnerable, and At-risk Populations in an Emergency, at 6 https://emergency.cdc.gov/workbook/pdf/ph_workbookfinal.pdf (last accessed Apr. 14, 2020).
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immunity. In particular, “mental health disorders can increase the risk of infections, including
pneumonia”—a leading cause of hospitalization and death among those infected with COVID-19.9
In addition, because of its failure to plan, St. Elizabeths patients are not receiving the
psychiatric care and treatment that is the reason they are confined to the Hospital. This has short-
and long-term implications for their mental health and the conditions may be traumatic for some.
The hazard of further institutionalization combined with the lack of treatment, weighs heavily
against the further detention of patients who can safely be placed in community settings with
appropriate supports.
There are practical remedies that can address the Defendants’ failure to protect the
constitutional and statutory rights of the Plaintiffs:
• Conduct an individualized assessment of each patient to assess (i) the current effect of these conditions on the patient, (ii) to determine whether other options exist in lieu of continued placement at St. Elizabeths, including community placement, and (iii) whether changes to a patient’s treatment plans are needed.
• Cease all admissions to the Hospital until the density at St. Elizabeths is sufficiently reduced to allow for social distancing and patients at the hospital are no longer at a heightened risk due to COVID-19;
• Provide appropriate COVID-19 intervention and care at the Hospital, including (i) evaluating patients and where appropriate administering rapid COVID-19 tests; (ii) ensuring clinically effective isolation and quarantine for patients with confirmed and suspected COVID-19 cases; and (iii) determining equipment needs and immediately providing masks for any individuals displaying or reporting COVID-19 symptoms or exposure until they can be evaluated by a qualified medical professional or placed in quarantine;
• Ensure that each patient has timely and complete access to essential hygiene, including soap, hand sanitizer, and running water, and materials needed to disinfect surfaces that may be contaminated;
• Develop capacity for patients, who are not infected and for whom release is not possible, to be housed in an auxiliary facility until the density at St. Elizabeths is
9 Hao Yao, et al., Patients with mental health disorders in the COVID-19 epidemic, The Lancet, Vol. 7, Issue 4, at e21 (Apr. 1, 2020), https://doi.org/10.1016/S2215-0366(20)30090-0.
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sufficiently reduced to allow for social distancing, and implement social distancing in accordance with public health guidelines. • Ensure robust education about COVID-19 for patients, including education about how to identify symptoms, how to take preventative measures, how to contact patient advocates, and about any changes in policies and practices at the Hospital. There should be sufficient opportunity to ask and receive answers to questions. These are all measures that public and mental health experts say Saint Elizabeths can and should implement. If the Hospital fails to do so, this Court should order they be performed. Such action, voluntarily or otherwise, will protect this critically vulnerable population and save lives.
STATEMENT OF FACTS 1. Saint Elizabeths Hospital and its Patients Saint Elizabeths Hospital is the District’s public psychiatric facility and serves individuals with mental illness who need intensive inpatient care. FAC ¶¶ 25, 30. Saint Elizabeths is the District’s only public psychiatric facility for individuals with serious and persistent mental illness who need intensive inpatient care to support their recovery. FAC ¶¶ 25, 30; Ex. 1 Declaration of Elizabeth Jones (“Jones Decl.”) ¶ 7. Saint Elizabeths also provides mental health evaluations and care to patients committed by the courts. FAC ¶¶ 25, 30. Patients at Saint Elizabeths Hospital are entitled to a dignified, respectful and supportive environment and generally accepted standards of individualized treatment, continuity of care, professionalism, and health and safety. FAC ¶ 31; Jones Decl. ¶ 8. Those goals must be achieved through hospital settings that are safe, calm, predictable (in terms of the patient’s routine), and responsive to the needs of each individual patient. Jones Decl. ¶ 9. Where these conditions do not exist, there is a risk of further traumatizing patients and exacerbating their psychiatric conditions. Jones Decl. ¶ 10.
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Saint Elizabeths has an average patient population of 270 and approximately 700 employees. FAC ¶ 32. On April 14, 2020, the patient population was 237. FAC ¶ 32. Saint Elizabeths Hospital patients are committed to the care of the District. Patients may be committed in one of several ways. Patients may have civil legal status, meaning that they are committed voluntarily, or civilly committed, or committed on an emergency basis. Patients may be committed after being adjudicated in criminal court as not guilty by reason of insanity (“NGI”). Patients may be committed to Saint Elizabeth’s for forensic reasons, because they are awaiting a hearing to determine their competency to stand trial or to have their competency restored. Patients in any category may be transferred from D.C. correctional facilities or other area hospitals. FAC ¶ 34. Defendants have the authority to (i) release any patients who are civilly committed or who are committed to the Hospital voluntarily, and (ii) evaluate and recommend release or continued commitment for patients who are criminally committed or who are committed because of their NGI status. FAC ¶¶ 23-36. Saint Elizabeths Hospital patients are housed in one of 11 units, or houses. FAC ¶ 33. The units consist of bedrooms and common spaces.10 FAC ¶ 33. Houses are organized into three clusters: admissions, continuing care and geri-medical. Some of the bedrooms are single occupancy and some are double occupancy. FAC ¶ 33.
2. The 2020 COVID-19 Pandemic COVID-19 is the disease caused by the SARS-CoV-2 virus that has caused a global pandemic. FAC ¶ 37. The CDC estimates that as of April 15, 2020, there are 605,390 confirmed cases and 24,282 confirmed deaths in all 50 states, the District of Columbia, Guam, Puerto Rico, the Northern Mariana Islands, and the U.S. Virgin Islands.11 COVID-19 is highly contagious.
10 District of Columbia Dep’t of Behavioral Health Policy “Individual’s Admission and Discharge,” Policy No. 100.00. 11 CTRS. DISEASE CONTROL & PREVENTION, Cases in U.S., https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/cases-in-us.html. (last visited Apr. 16, 2020).
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FAC ¶ 39; Ex. 2, Declaration of Dr. Marc Stern, M.D., M.P.H. (“Stern Decl.”) ¶ 8; Ex. 3,
Declaration of Dr. Johnathan L. Golob, M.D. (“Golob Decl.”) ¶ 6. It is thought to survive for three
hours in the air in droplet form that can be inhaled, or it can be transferred to surfaces, where it
can survive for up to twenty-four hours on cardboard, and up to two to three days on plastic and steel. FAC ¶ 39. 12 Due to the highly contagious nature of COVID-19, data and statistical modeling
show that absent intervention, the rate of COVID-19 infections has grown exponentially. FAC ¶ 40; Golob Decl. ¶ 2. 13 People in all age brackets are at risk of serious illness and death from COVID-
19. FAC ¶ 41; Stern Decl. ¶ 14 (“[I]t is becoming clear that younger individuals are not protected
from severe complications requiring hospitalization and placement in intensive care.”); Golob Decl. ¶ 3. 14 Although only about “one person in six becomes seriously ill” from COVID-19, the virus causes excruciating pain to those who become seriously ill. See Golob Decl. ¶ 4.15 One
respiratory physician explained that the lungs “become filled with inflammatory material” and “are unable to get enough oxygen to the bloodstream.” FAC ¶ 42.16 The virus leads to acute
respiratory distress syndrome, in which fluid displaces the air in the lungs. The sensation of that illness is akin to being drowned. FAC ¶ 43.17 In more serious forms, the individual can experience
excruciating pain, days or weeks of fever and chills, uncontrollable diarrhea and inability to keep
12 Neeltje van Doremalen et al., Correspondence, Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1, New Eng. J. Med. (Mar. 17, 2020), https://www.nejm.org/doi/full/10.1056/NEJMc2004973. 13 Kenneth Chang, A Different Way to Chart the Spread of Coronavirus, N.Y. TIMES (Mar. 20, 2020), https://www.nytimes.com/2020/03/20/health/coronavirus-data-logarithm-chart.html (“Unconstrained, the coronavirus spreads exponentially, the caseload doubling at a steady rate.”). 14 CTRS. DISEASE CONTROL & PREVENTION, Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) — United States, February 12–March 16, 2020 tbl. (2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm?s_cid=mm6912e2_w. 15 Graham Readfern, What happens to people's lungs when they get coronavirus?, GUARDIAN (Apr. 14, 2020), https://www.theguardian.com/world/2020/apr/15/what-happens-to-your-lungs-with-coronavirus-covid-19. 16 Id. 17 Lizzie Presser, A Medical Worker Describes Terrifying Lung Failure From COVID-19 — Even in His Young Patients, PROPUBLICA, March 21, 2020, available at https://www.propublica.org/article/a-medical-worker-describes-terrifying-lung-failure-from-covid19-even-in-his-young-patients.
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down food or water, and extremely labored breathing requiring oxygen therapy. FAC ¶ 43; Golob Decl. ¶ 5.18 The most severe forms require hospitalization and often artificial ventilation to
preserve life. Golob Decl. ¶ 5. The artificial ventilation process is highly invasive and many who
have undergone the process describe it as psychologically traumatic. Some patients are placed in medically induced comas for such treatment. Some do not survive. FAC ¶ 43. 19
Emerging medical research also demonstrates that, in addition to the short-term risk of death
posed by COVID-19, contracting the virus can lead to other serious long-term medical conditions,
including cardiovascular disease and permanent reduction of lung function. FAC ¶ 44; Golob Decl. ¶ 9.20 Because of these short-term and long-term dangers, treating COVID-19 requires a team of
health care providers, including nurses, respiratory therapists, and intensive care physicians. FAC ¶ 45; Golob Decl. ¶ 8. 21 As of April 10, 2020, the available data from the CDC to date shows
that, in total, 20.7 to 31.4 percent of people who tested positive for COVID-19 require
hospitalization, 4.9 to 11.5 percent require admission to the ICU, and 1.8 to 3.4 percent die. FAC ¶ 46.22 The CDC estimates that the COVID-19 mortality rate in the United States was 6.9 percent during week 14 (ending April 4, 2020) of the outbreak in the United States. FAC ¶ 47.23 By
18 Leah Groth, Is Diarrhea a Symptom of COVID-19? New Study Says Digestive Issues May Be Common With Coronavirus, HEALTH (Mar. 20, 2020), https://www.health.com/condition/infectious-diseases/coronavirus/isdiarrhea-a-symptom-of-covid-19. 19 Katie Blocker, Grateful to be alive: Ernesto Castro lives to tell his story about surviving COVID-19, UCHEALTH TODAY (Apr. 1, 2020), https://www.uchealth.org/today/grateful-to-be-alive-after-covid-19-ernesto-castro-lives-totell-story-about-life-on-a-ventilator/. 20 Tian-Yuan Xiong et al., Coronaviruses and the Cardiovascular System: Acute and Long-Term Implications, EURO. HEART J., 231 (2020). 21 Pauline W. Chen, The Calculus of Coronavirus Care, N.Y. TIMES (Mar. 20, 2020), https://www.nytimes.com/2020/03/20/well/live/coronavirus-covid-doctor-nurse-shortage-staff.html. 22 Id. 23 CTRS. DISEASE CONTROL & PREVENTION, CovidView: A Weekly Surveillance Study of U.S. COVID-19, Mortality, https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html#mortality (last visited Apr. 16, 2020).
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comparison, the mortality rate of seasonal influenza is well below 0.1 percent. FAC ¶ 47; see also Golob Decl. ¶ 4. 24 There is no vaccine to prevent COVID-19. FAC ¶ 48; Golob Decl. ¶ 10.25
3. Risk of Infection at Saint Elizabeths Hospital Medical and mental health professionals have consistently urged that individuals with mental health disorders require “priority attention” in this kind of emergency. FAC ¶ 49; Golob Decl. ¶ 14. Mental health disorders like those experienced by Plaintiffs can increase the risk of infections, including pneumonia, a leading cause of hospitalization and death among those infected with COVID-19. FAC ¶ 50.26 Congregate settings like Saint Elizabeths Hospital enable and facilitate the rapid spread of COVID-19 infection. FAC ¶ 51; Stern Decl. ¶ 13; Golob Decl. ¶ 13. People live, eat, and sleep in close proximity. In such environments, infectious diseases that are transmitted via the air or touch are more likely to spread. FAC ¶ 51. Stern Decl. ¶ 13. This therefore presents an increased danger for the spread of COVID-19 once it has been introduced into the facility. FAC ¶ 51; Stern Decl. ¶ 13; Golob Decl. ¶ 13. To the extent that patients are housed in close quarters, unable to maintain a six-foot distance from others, and sharing or touching objects used by others, the risks of spread are greatly, if not exponentially, increased. FAC ¶ 52; Stern Decl. ¶ 12; Golob Decl. ¶ 14. Because people — including staff and contractors —constantly cycle in and out of Saint Elizabeths Hospitals facilities and new patients are being admitted, there is an ever-present risk that new carriers will bring the virus into the facility. FAC ¶ 53; Golob Decl. ¶ 14 (describing the same risks in other congregate settings such as prisons, jails, or immigration detention centers); see also Ex. 4, Declaration of
24 WORLD HEALTH ORG, CORONAVIRUS DISEASE 2019 (COVID-19) SITUATION REPORT-46 p. 2 (2020). 25 CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2020: How to Protect Yourself and Others, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (last visited Apr. 16, 2020). 26 See Hao Yao, et al., Patients with mental health disorders in the COVID-19 epidemic, The Lancet, Vol. 7 Issue 4 at e21 (Apr. 1, 2020), available at https://doi.org/10.1016/S2215-0366(20)30090-0.div.
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Hadley Truettner (“Truettner Decl.”) ¶¶ 3-5 (noting that as of April 13, 2020, Saint Elizabeths is still accepting new patients). The spread of COVID-19 at St. Elizabeths Hospital could have a devastating impact on public health far beyond the Hospital’s walls. Staff who enter and leave the facility could transmit the virus to the broader community and demands for intensive care beds and ventilators could overwhelm local hospitals and health care providers. It is essential at this time that all steps be taken to reduce infection and to “flatten the curve” to ensure that our health care system does not collapse. FAC ¶ 54; Stern Decl. ¶¶ 14-17.
Nursing facilities are similar congregate settings. In Maryland, Gov. Larry Hogan is sending “strike teams” to nursing facilities that are at high-risk of COVID-19 because of the heightened danger to residents. These strike teams will administer rapid tests; ensure isolation of suspected COVID-19 cases and quarantine of confirmed COVID-19 cases; determine equipment needs; and provide on-site care and medical assessment.27 Maryland’s response underscores the public and individual health imperatives for immediate and decisive action for persons confined to congregate settings and provides a model for implementing such protective actions. FAC ¶ 55.
4. The COVID-19 Outbreak at Saint Elizabeths Hospital Plaintiffs’ counsel wrote to Defendants and Defendants’ counsel on March 13 and March 17, 2020 inquiring whether any protocols had been implemented to protect patients from COVID19, urging Defendants to take immediate steps to reduce the patient population at the Hospital, and advocating for every patient to be evaluated for community placement as soon as possible. FAC ¶ 58. On March 18, they received a response stating that Saint Elizabeths implemented its Emergency Preparedness Plan (“EPP”) on March 12, 2020. Defendants did not provide a copy of
27 Editorial Board, Nursing homes are in the pandemic’s crosshairs. They can’t be neglected. WASHINGTON POST (Apr. 13, 2020), https://www.washingtonpost.com/opinions/nursing-homes-are-in-the-pandemics-crosshairs-theycant-be-neglected/2020/04/13/7341919a-7db0-11ea-a3ee-13e1ae0a3571_story.html
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the EPP or address or Plaintiffs’ request to reduce the patient population. The response stated that no cases of COVID-19 had been detected among the patients or staff. FAC ¶ 61-63. Since then, circumstances have changed dramatically.
On April 1, 2020, one patient and five staff members at St. Elizabeths were confirmed to be COVID-19 positive.28 On April 2, Plaintiffs sent a follow-up letter to Defendants requesting an update and information about Defendants’ response and reiterating the request that Defendants evaluate every patient for community placement and take aggressive steps to protect patients who remain in the Hospital. FAC ¶ 64. On April 9, Plaintiffs sent a further follow-up letter. Defendants acknowledged receipt but had not otherwise responded to either letter prior to the filing of the amended complaint. FAC ¶ 64. Not until April 16 — moments after Plaintiffs filed their Motion for an Emergency Hearing and for Leave to File an Amended Complaint (ECF No. 36) — did Defendants finally respond to Plaintiffs’ April 2 and April 9 letters.29
As of April 16, 2020, at least 33 Saint Elizabeths patients, as well as at least 51 of the hospital’s staff, had tested positive for COVID-19.30 At least four Saint Elizabeths Hospital patients have died after contracting COVID-19.31
5. Conditions at Saint Elizabeths Hospital a. Social Distancing and Distribution of Masks
When there has been an outbreak of COVID-19 in the community surrounding a facility, but not yet in the facility, the CDC recommends, among other things, that the facility should
28 Dist. of Columbia Dep’t of Human Servs., Human Services Agency COVID-19 Case Data, https://coronavirus.dc.gov/page/human-services-agency-covid-19-case-data (last accessed Apr. 17, 2020). 29 Following the meet and confer regarding the filing of the amended complaint on April 16, the DBH General Counsel responded, summarizing measures adopted (many of which were previously reported in Defendant Barzon’s March 18 letter), confirming that the Hospital has admitted new patients since the crisis started, and reporting that 40 patients had been discharged. 30 Dist. of Columbia Dep’t of Human Servs., Human Services Agency COVID-19 Case Data, https://coronavirus.dc.gov/page/human-services-agency-covid-19-case-data (last accessed Apr. 17, 2020). 31 Id.
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implement practices to prevent and control the spread of the virus, including canceling communal dining and all other group activities. FAC ¶ 69.32 The CDC guidance also recommends that “symptomatic residents should wear a facemask (if tolerated) and be separated from others.”33 When there are cases in the facility, the CDC further recommends that the facility should implement universal use of facemasks for health care professionals, and encourage patients to remain in their rooms, and encourage patients to wear face masks and perform social distancing when they leave their rooms by staying six feet away from others. FAC ¶ 70.34
Plaintiffs report that it is impossible for patients at Saint Elizabeth to maintain six feet of distance between themselves and other people in the Hospital. FAC ¶ 78, 82, 85, 89; Ex. 5, Declaration of Enzo Costa (“Costa Decl.”) ¶ 4; Ex.6, Declaration of Williams Dunbar (“Dunbar Decl.”) ¶ 5; Ex. 7, Declaration of Vinita Smith (“Smith Decl.”) ¶ 6. Ms. Smith reports her unit is still using the same common spaces, including the dining hall, lounge area and laundry room, and are sharing furniture and facilities, Smith Decl. ¶ 5, and Mr. Costa and Mr. Dunbar report that members of their units are all still using common spaces. FAC ¶ 82, 85, 89; 94; Costa Decl. ¶ 4; Dunbar Decl. ¶ 5b. Other patients report the same. See Ex. 8, Declaration of Ashley Guzman (“Guzman Decl.”) ¶ 3b; Ex. 9, Declaration of Wanda Rose (“Rose Decl.”) ¶ 5; Ex. 10, Declaration of Danielle Mason (“Mason Decl.”) ¶ 4a-b.
Defendants have not provided masks to all patients or instructed or required patients to wear masks in a manner consistent with public health guidelines. FAC ¶ 79, 83, 87, 91, 95; Costa
32CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2019 Nursing Homes & Long-Term Care Facilities, https://www.cdc.gov/coronavirus/2019-ncov/hcp/long-termcare.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fhealthcarefacilities%2Fprevent-spread-in-long-term-care-facilities.html 33 Id. 34 Id.
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Decl. ¶ 7; Dunbar Decl. ¶ 5d; Smith Decl. ¶ 9; Guzman Decl. ¶ 3b-c; Rose Decl. ¶ 5; Mason Decl. ¶ 4a.
b. Screening and Testing Patients are not being tested for COVID-19, even when they display characteristic symptoms of the virus. FAC ¶ 96, 103, 108. Such practices (or lack thereof) directly contravene CDC guidelines issued for “congregate” settings similar to St. Elizabeths; CDC guidelines for correctional/detention facilities,35 long-term care facilities/ nursing facilities,36 and cruise ships37 all recommend some form of screening and/or testing for both symptomatic and asymptomatic persons. See Stern Decl. ¶ 16c (“Authorities must be required to screen each employee or other person entering the facility every day to [sic] according to current CDC or local health department guidelines.”).
There is no COVID-19 testing taking place on-site at the Hospital. FAC ¶ 96; Smith Decl. ¶ 11; Costa Decl. ¶ 13; Dunbar Decl. ¶ 8. Some (but not all) patients are only being tested for COVID-19 (off site) once they exhibit symptoms. FAC ¶ 96, 103; Ex. 11, Declaration of Penelope Donkar (“Donkar Decl.”) ¶ 3a. But patients who have been exposed to the virus but are asymptomatic are not being tested. FAC ¶ 96, 103, 108; see Dunbar Decl. ¶¶ 5b, 6; Guzman Decl. ¶¶ 5b-c.
35 CTRS. DISEASE CONTROL & PREVENTION, 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. 36 CTRS. DISEASE CONTROL & PREVENTION, COVID-19 Long-Term Care Facility Guidance (Apr. 2, 2020), available at https://www.cms.gov/files/document/4220-covid-19-long-term-care-facility-guidance.pdf. 37 CTRS. DISEASE CONTROL & PREVENTION, CDC’s role in helping cruise ship travelers during the COVID-19 pandemic (Apr. 4, 2020), https://www.cdc.gov/coronavirus/2019-ncov/travelers/cruise-ship/what-cdc-is-doing.html.
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c. Medical Isolation and Quarantine Procedures When there has been an outbreak of COVID-19 in the community surrounding the facility, but not yet in the facility, the CDC recommends that residents with suspected COVID-19 should be isolated by being placed in a private room with their own bathroom, and that if the “facility cannot fully implement all recommended precautions” residents with “known or suspected COVID-19 . . . should be transferred to another facility that is capable of implementation” and that “while awaiting transfer, symptomatic residents should wear a facemask (if tolerated) and be separated from others.” FAC. ¶ 69. When there are cases in the facility, the CDC recommends grouping ill residents with dedicated health care professionals. FAC. ¶ 70.38 Saint Elizabeths has established one unit with seven beds to quarantine COVID-19 positive patients. FAC ¶ 100; Guzman Decl. ¶ 3a. But there are 33 reported cases at the hospital, so it appears—consistent with the firsthand reports—that Defendants are not segregating all of the patients who are COVID-19 positive from other patients at the Hospital. Patients who have tested positive for COVID-19 are housed in close quarters and share common areas with patients who are showing no symptoms. FAC ¶ 97-99, 104, 106-107; Dunbar Decl. ¶ 5b; Donkar Decl. ¶ 4.
d. Visitor and New Patient Procedures According to Defendants, Saint Elizabeths Hosptial has accepted five new patients since the declaration of the emergency, and there is the potential for new people to be introduced to the Saint Elizabeths ecosystem every day. FAC ¶ 132; see Truettner Decl. ¶¶ 3-5. Indeed, Saint Elizabeths is still accepting new patients from area hospitals. Truettner Decl. ¶¶ 3-5.
38 CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2019 Nursing Homes & Long-Term Care Facilities, https://www.cdc.gov/coronavirus/2019-ncov/hcp/long-termcare.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fhealthcarefacilities%2Fprevent-spread-in-long-term-care-facilities.html
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e. Psychiatric treatment during the outbreak There has been severe curtailment of mental health care. Patients are not receiving the same or functionally equivalent mental health care that they received prior to the COVID-19 pandemic. FAC ¶ 109-110; Smith Decl. ¶ 10; Costa Decl. ¶ 9; Dunbar Decl. ¶ 7. Defendants have closed the Treatment Mall, suspended group therapy, suspended anger management classes and most competency restoration classes. FAC ¶ 110; Smith Decl. ¶ 10; Costa Decl. ¶ 9; Dunbar Decl. ¶ 7. Defendants have not taken adequate steps to compensate of the loss of group therapy or necessary classes or provided alternative or modified treatment plans, for example by using teletherapy or virtual therapy. FAC ¶ 111. Mr. Costa and Mr. Dunbar normally receive group therapy. Neither of them has received group therapy or a telephonic or other remote substitute for group therapy over the past few weeks. FAC ¶ 112; Costa Decl. ¶ 9. Dunbar Decl. ¶ 7. Mr. Costa normally also receives individual therapy, but has not received individual therapy or a telephonic or other remote substitute since Defendants ordered him to remain on his Unit. FAC ¶¶ 113, 115; Costa Decl. ¶ 10. According to mental health experts, the failure to provide safe, secure, predictable, and continuity of care is counter to effective treatment and can result in actual harm, including regression, loss of self-esteem, exacerbation of distress and heightened instability. This can lead to longer lengths of hospitalization and likelihood of more restrictive measures, such as loss of privileges, and the use of seclusion and/or restraints. Jones ¶ 12.
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6. Failure of Emergency Planning/Procedures a. Transfers back and forth to area hospitals
When patients are suspected of having COVID-19, they are inconsistently being transferred to area hospitals for testing and for treatment. See Donkar Decl. ¶¶ 3a, 3c & 4. Defendants are failing to ensure that patients are properly supervised at receiving hospitals and are not effectively communicating with receiving hospitals, guardians, or counsel regarding patients in Defendants’ care. Donkar Decl. ¶¶ 3a, 3b & 3c.
b. Staff absences There are approximately 700 staff members at Saint Elizabeths Hospital. Large numbers of staff are not reporting to work. FAC ¶ 117. The DBH reported 71 staff absences caused by COVID-19 quarantine or isolation on April 15.39
ARGUMENT To obtain a temporary restraining order or a preliminary injunction, the moving party must establish that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in its favor; and (4) that an injunction is in the public interest. Gordon v. Holder, 632 F.3d 722, 724 (D.C. Cir. 2011) (citing Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008)). Courts in this Circuit have traditionally applied these factors on a “sliding scale,” where a stronger showing on some factors can compensate for a weaker showing on others. See, e.g., Davenport v. Int’l Brotherhood of Teamsters, 166 F.3d 356, 360 (D.C. Cir. 1999). The Circuit has suggested, but not decided, that an independent showing of likelihood of success is required. See Sherley v. Sebelius, 644 F.3d 388, 392-93 (D.C. Cir. 2011) (citing Winter, 555 U.S. at 20-22). Under either approach, Plaintiff makes
39Dist. of Columbia Dep’t of Human Servs., Human Services Agency COVID-19 Case Data, https://coronavirus.dc.gov/page/human-services-agency-covid-19-case-data
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the necessary showing here. Standards for issuing a temporary restraining order and a preliminary injunction are the same and can therefore be analyzed together. Singh v. Carter, 168 F. Supp. 3d 216, 223 (D.D.C. 2016).
And the Court has authority to order relief to remedy unconstitutional conditions, including by release. The writ of habeas corpus, which “cuts through all forms and goes to the very tissue of the structure,” Chatman-Bey v. Thornburgh, 864 F.2d 804, 807 (D.C. Cir. 1988) (en banc), is flexible enough to provide both authority for release and also to order remedies for unconstitutional conditions of confinement, as “[h]abeas corpus tests not only the fact but also the form of detention.” Aamer v. Obama, 742 F.3d 1023, 1033 (D.C. Cir. 2014) (quoting Hudson v. Hardy, 424 F.2d 854 (D.C. Cir. 1970) (internal quotation marks omitted). The court’s remedial authority in an ordinary civil action under 42 U.S.C. § 1983 is likewise broad. As the Court has long recognized in § 1983 conditions cases, “Once invoked, the scope of a district court’s equitable powers ... is broad, for breadth and flexibility are inherent in equitable remedies.” Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978) (quoting Milliken v. Bradley, 433 U.S. 267, 281 (1977), in turn quoting Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15 (1971)); accord Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Justice, 846 F.3d 1235, 1241–42 (D.C. Cir. 2017) (reiterating this principle).
Finally, as to discrimination against individuals with disabilities, the Americans with Disabilities Act (ADA) grants broad remedial authority to the courts. Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The unjustified institutional isolation of persons with mental disabilities is properly regarded as discrimination
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based on disability, for (1) in findings applicable to the entire ADA, Congress explicitly identified unjustified segregation of persons with disabilities as a form of discrimination (42 U.S.C. §v 12101(a)(2), 12101(a)(5)); and (2) recognition of such a rule reflects the evident judgments that (a) institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life, and (b) confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment. Olmstead v. L. C. by Zimring, 527 U.S. 581 (1999). The court has additionally held that public entities violate the ADA when they “care for a mentally…disabled individual in [facility] notwithstanding, with reasonable modifications to its policies and procedures, it could care for that individual in the community. Brown v. District of Columbia, 928 F.3d 1070, 1073 (D.C. Cir. 2019).
1. Plaintiffs Are Likely to Succeed on the Merits of Their Claim Plaintiffs and proposed class members are substantially likely to prevail on the merits of their claims. Under the due process clause of the Fifth Amendment, “[p]retrial detainees (unlike convicted prisoners) cannot be punished at all.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2475 (2015); accord Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). Pretrial detainees can demonstrate that they have been “punished” if the actions taken against them are either motivated by an intent to punish, Kingsley, 135 S. Ct. at 2473, or are objectively unreasonable, see id. Comparably, when a government entity involuntarily commits a person, “the Constitution imposes upon [the state] a corresponding duty to assume some responsibility for [that individual’s] safety and general well-being. Jordan v. District of Columbia, 161 F. Supp. 3d 45, 53 (D.D.C. 2016) (quoting DeShaney v. Winnebago Cnty. Dep't of Social Servs., 489 U.S. 189,
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197, (1989), and citing Harvey v. District of Columbia, 798 F.3d 1042, 1050-51 (D.C. Cir. 2015) (discussing DeShaney in the involuntary commitment context) (alterations in the original)); Moses v. District of Columbia, 741 F.Supp.2d 123 (D.D.C. 2010). Due process standards for civil detainees, like those for pretrial detainees, are higher than those under the Eighth Amendment for individuals convicted of crimes: “[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982).
If the Court finds here that the conditions are objectively unreasonable and/or fail to ensure Plaintiffs’ safety and well-being, then Plaintiffs and class members—all of whom are civil or pretrial detainees and none of whom has been convicted of a crime—have made out a Fifth Amendment claim regardless of Defendants’ subjective intent. See id.; accord Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) (“[T]he Due Process Clause can be violated when an official does not have subjective awareness that the official’s acts (or omissions) have subjected the pretrial detainee to a substantial risk of harm.”). The following analysis relies on due process cases under both the Fifth Amendment (which applies here, because the governmental actor is the District of Columbia, see Bolling v. Sharpe, 347 U.S. 497, 499 (1954)) and the Fourteenth Amendment, because the due process protections under both clauses are the same, Doe v. District of Columbia, 206 F. Supp. 3d 583, 603 n.11 (D.D.C. 2016); Plaintiffs also rely on Eighth Amendment cases because a nonconvicted detainee’s rights “are at least as great as the Eighth Amendment protections available to a convicted prisoner,” City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); see also Cty. of Sacramento v. Lewis, 523 U.S. 833, 850 (1998) (explaining that treatment that would violate a convicted person’s Eighth Amendment right a fortiori violates a pretrial detainee’s due process right).
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Among the most basic rights of civil and pretrial detainees are the right to adequate medical care, Youngberg, 457 U.S. at 324 (1982), and reasonable safety in confinement, see Helling v. McKinney, 509 U.S. 25, 33 (1993) (holding that even convicted individuals may not be subjected to “a condition of confinement that is . . . very likely to cause serious illness and needless suffering.”). Even for convicted individuals, the right to medical care includes the right to mental health care. See Brown v. Plata, 563 U.S. 493, 506 (2011). The record evidence — in the form of sworn affidavits from residents in Defendants’ custody and from attorneys and investigators from PDS who have witnessed first-hand the conditions of Defendants’ facilities, and expert declarations from infectious disease and mental health specialists — amply demonstrates the breadth and scope of Defendants’ unconstitutional actions and inactions in unreasonably failing to provide adequate medical care and to protect the health and safety of Plaintiffs.
During the COVID-19 outbreak, St. Elizabeths has responded by housing symptomatic and COVID-19 positive individuals together with asymptomatic individuals, potentially exposing individuals who do not have COVID-19; the Hospital has also failed to isolate and quarantine individuals with the virus or suspected of having the virus. This is almost exactly the situation the Supreme Court described in Helling, where inmates in “isolation were crowded into cells” with individuals with “infectious maladies.” Id. The Hospital has compounded this failure during the COVID-19 crisis by failing to provide basic sanitation appropriate to the situation—in this case, ample soap and hand sanitizer, increased cleaning and disinfection of areas. See Williams v. Griffin, 952 F.2d 820, 825 (4th Cir. 1991); Walker v. Schult, 717 F.3d 119, 126-27 (2d Cir. 2013); Gates v. Cook, 376 F.3d 323, 338 (5th Cir. 2004); McBride v. Deer, 240 F.3d 1287, 1291-92 (10th Cir. 2001). Significant deficiencies in hygienic conditions violate the constitutional rights of prisoners. See Caldwell v. Caesar, 150 F. Supp. 2d 50, 64 (D.D.C. 2001). Notably, Plaintiffs do
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not need to show that they are currently infected or suffering “serious health problems” to show that they face a “substantial risk” of serious harm that is unconstitutional. Helling, 509 U.S. at 34. On the contrary, the Supreme Court rejected the notion that “prison authorities ... may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year.” Id. at 33. Even more specifically, the Court held that prison authorities could not escape responsibility for preventing “the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.” Id.
Essential mental health care has been severely curtailed during the COVID-19 outbreak. Large numbers of staff have called in sick, the Treatment Mall has been closed, and patients are not receiving necessary care. It bears emphasis that the CDC Guidance specifically instructs institutions to “plan for staff absences” including making a “plan for alternative coverage by crosstraining staff” and “develop[ing] a plan to secure additional staff.”40 The Hospital appears to have failed to implement any of these measures.
Ample record evidence, expert reports, and persuasive decisions from other circuits demonstrate that patients at the Hospital face a substantial risk of contracting COVID-19. The record evidence shows that Plaintiffs and proposed class members face a “substantial risk” of contracting COVID-19. Most significantly, according to Defendants, there are already 79 confirmed cases of COVID-19 in their facilities—51 staff and 33 patients. And 156 persons—74 patients and 82 staff are in isolation or quarantine.
40 CTRS. DISEASE CONTROL & PREVENTION, Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html
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In his expert declaration, Dr. Golob explains that infections like COVID-19 can spread more rapidly in congregate environments, “particularly where residents cannot engage in social distancing measures, cannot practice proper hygiene, and cannot isolate themselves from infected residents or staff.” Golob Decl. ¶ 13.
This risk is intolerable. Cf. Helling, 509 U.S. at 36 (asking “whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.”). The available data from the CDC show that of Americans generally who tested positive for COVID-19, nearly a third require hospitalization, many of those require admission to the ICU, and between 1.8 and 3.4 percent of people die. From a clinical and public health perspective, COVID-19 poses a risk of serious harm to anyone who contracts it. Dr. Golob explains that this severe risk extends not only to the elderly, but to “younger and healthier people” for whom “infection of this virus requires supportive care, which includes supplemental oxygen, positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation.” Golob Decl. ¶ 5.
The declarations of emergency from nearly every level of government is strong evidence COVID-19 is a risk that society considers to be grave. In declaring a national emergency on March 13, 2020, President Trump proclaimed that “[t]he spread of COVID-19 within our Nation’s communities threatens to strain our Nation’s healthcare systems.”41. Mayor Bowser’s Declaration of Public Health Emergency includes the finding that COVID- 19 “poses a significant risk of substantial future harm to a large number of people in the District of Columbia.”42
41 Exec. Order No. 9994, 85 Fed. Reg. 15337 (Mar. 13, 2020), available at https://www.govinfo.gov/content/pkg/FR-2020-03-18/pdf/2020-05794.pdf. 42 Mayor’s Order 2020-046, § I(C) (Mar. 11, 2020), available at https://mayor.dc.gov/sites/default/files/dc/sites/mayormb/release_content/attachments/MO.DeclarationofPublicHealt hEmergency03.11.20.pdf.
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For these and other reasons, many courts have recognized that COVID-19 poses a risk of serious harm. The Court in Basank v. Decker, No. 20-cv-2518 (AT), 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020), pointed to “[a] number of courts in this district and elsewhere [that] have recognized the threat that COVID-19 poses to individuals held in jails and other detention facilities.” Id. at *3 (citing United States v. Stephens, No. 15-cr-95 (AJN), 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020); United States v. Garlock, No. 18-cr-418 (VC), 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020)). The New Jersey Supreme Court, in approving an order resulting in the release of approximately 1,000 people from New Jersey jails, described “the profound risk posed to people in correctional facilities arising from the spread of COVID-19.” In the Matter of the Request to Commute or Suspend County Jail Sentences, Case No. 84230 (N.J. March 22, 2020). Even this Court’s own operations have been dramatically changed by the “pandemic,” in Chief Judge Howell’s words, “reflecting the seriousness of the need to combat the community spread of the virus.” In re: Court Operations in Exigent Circumstances Created by the COVID19 Pandemic, Standing Order No. 20-9 (BAH), at 1–2.
To recognize the gravity of the risk, the court need look no further than statements of the District’s own officials, including Defendant Bazron. Mayor Bowser herself announced on March 11, 2020, that COVID-19 “poses a significant risk of substantial future harm to a large number of people in the District of Columbia.” Mayor’s Order 2020-046, § I(C) (March 11, 2020). And in response to a letter from Plaintiffs’ counsel, Defendant Barzon recognized “the significant perils posed by the highly communicable coronavirus.” Defendant Barzon advised that on March 12, the Hospital activated its Emergency Preparedness Plan.
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Plaintiffs and proposed class members are likely to prevail in showing that Defendants have disregarded and continue to disregard the excessive risk to their health or safety. Ms. Jones notes that the conditions at the Hospital are “a clear risk to health and safety.” Jones ¶ 16.
The very failures of Defendants in this case have been found to constitute deliberate indifference in like cases. For instance, in Feliciano v. Gonzales, 13 F. Supp. 2d 151 (D.P.R. 1998), the Court found that the defendant’s “inability . . . to properly isolate cases of active tuberculosis,” the “insufficient medical dormitory beds,” the failure to “fully screen incoming inmates,” and the failure to “provide for a sick call system that ensures access to care and that is capable of effectively handling emergencies” constituted deliberate indifference. Id. at 208–09. In other cases, the defendant’s inability to “adequately quarantine or remove inmates and support staff known to have active tuberculosis” was found to constitute deliberate indifference. See Shimon v. Dep’t of Corr. Servs. for N.Y., No. 93-cv-3144 (DC), 1996 WL 15688, at *1 (S.D.N.Y. Jan. 17, 1996). And in Joy v. Healthcare CMS, 534 F. Supp. 2d 482 (D. Del. 2008), the Court found that the plaintiffs stated a claim under the Eighth Amendment where the warden “was aware that inmates were not thoroughly screened for disease before going into general population and that Correctional Medical Services does not have a policy in place to examine inmates before placing them into general population.” Id. at 485. As discussed above, the record is replete with Defendants’ deficient performance in all of these categories, including their failed quarantine policy, rampant medical delays, and ineffective screening procedures.
Defendants’ failure to protect Plaintiffs and the objective unreasonableness of their conduct can also be shown by reference to their failure to follow accepted medical standards—a showing that suffices to meet even the Eighth Amendment standard that is more demanding than due process. The Court in Hernandez v. County of Monterey, 110 F. Supp. 3d 929 (N.D. Cal. 2015), explained that
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“known noncompliance with generally accepted guidelines for inmate health strongly indicates deliberate indifference to a substantial risk of serious harm.” Id. at 943. Here, Dr. Stern’s declaration makes clear that Defendants are out of compliance in critical categories, including screening and testing policies, social distancing requirements, medical isolation, and quarantine protocols. Stern Decl. ¶ 16.
Defendants are also unnecessarily and discriminatorily institutionalizing patients who could be served in a community-based placement because to date they have failed to evaluate and develop release plans. While, under Title II of the ADA, a public entity may rely on the assessments of its own professionals in determining whether an individual "meets the essential eligibility requirements" for habilitation in a community-based program, those assessments must be reasonable. Olmstead v. L.V. by Zimring, 527 U.S. 581, 602.Defendant’s actions, and inactions, in addressing the COVID-19 pandemic have created an unreasonable risk of harm to Plaintiffs’ mental and physical health which undermines any previously existing justification for their institutionalization. Defendants’ failure to evaluate all patients for community placement does not allow the conclusion that plaintiffs isolation is currently justified. See Long v. Benson, No. 080026, 2008 U.S. Dist. LEXIS 109917, 2008 WL 4571904, at *2 (N.D. Fla. 2008) (refusing to limit class to individuals whom state professionals deemed could be treated in the community, because a State "cannot deny the [integration] right simply by refusing to acknowledge that the individual could receive appropriate care in the community. Otherwise the right would, or at least could, become wholly illusory."). Plaintiffs are in danger of contracting a highly communicable, potentially fatal virus. The very treatment they were institutionalized to receive, intensive inpatient psychiatric care, is not taking place. Given these circumstances, continued segregation and institutionalization of plaintiffs is not reasonable.
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In short, even as to convicted individuals (which Plaintiffs are not), a facility “that deprives [persons] of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.” Brown v. Plata, 563 U.S. 493, 510–11 (2011). Given the grave risk of infection during the COVID-19 pandemic, the conditions to which Defendants are subjecting Plaintiffs in Saint Elizabeths Hospital fall below basic standards of decency, are objectively unreasonable, fail to ensure plaintiffs’ reasonable safety, and therefore violate due process. While Defendants may have had reasonable assessments justifying the institutionalization of plaintiffs in a functioning, safe psychiatric facility, the equities have shifted in light of the COVID-19 pandemic such that the risks to plaintiffs physical and mental health outweigh and limited benefit of inadequate mental health treatment they will receive for the duration of the public health emergency.
2. Plaintiffs Will Suffer Irreparable Harm Unless Defendants Are Enjoined from Following a Policy that Will Allow them to be Housed in Unconstitutional Conditions in the Future
As discussed above, Plaintiffs’ constitutional and statutory rights are being deprived, and nothing more is needed to prove irreparable harm, because the deprivation of constitutional rights, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”) (citing 11 C. Wright & A. Miller, Federal Practice and Procedure § 2948.1 (1973))); see generally Brown v. Plata, 563 U.S. 493, 511 (2011) (“Courts . . . must not shrink from their obligation to enforce the constitutional rights of . . . prisoners.” (internal quotation marks and citation omitted)). In Olmstead v. Zimring, the Court was concerned with two distinct harms people with disabilities suffer when subjected to
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discriminatory unjustified isolation. Olmstead v. L. C. by Zimring, 527 U.S. 581, 600. First, the Court was concerned with the stigma society places on individuals with disabilities when they are isolated and, secondly, the Court was concerned that individuals with disabilities so isolated have severely diminished everyday life activities, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment. Id. And even if Plaintiffs did not suffer constitutional injury, these facts demonstrate irreparable harm, as discussed below.
Plaintiffs are individuals with seriously mental illnesses, many involuntarily housed in a psychiatric hospital. During the pandemic, they have been unnecessarily exposed to the coronavirus without adequate means to protect themselves, have been grouped with individuals who likely have COVID-19, and have not received adequate care when they exhibit symptoms of the disease. Every day, they are deprived of the soap, hand sanitizer, and masks to allow them to adequately mitigate their risk of infection. Every day, they are being deprived of the mental health care that is the purpose of their commitment to the hospital.
Elizabeth Jones has over 35 years of experience managing the provision of services to people with intellectual and behavioral health disabilities, including managing public sector psychiatric hospitals in the District of Columbia, Massachusetts, and Maine. Jones Decl. ¶ 1. She was the Hospital Director at St. Elizabeths Hospital from February 1998 through April 2000 at which time she became Chief Operating Officer for the District of Columbia’s Commission on Mental Health Services while it was under federal court receivership. Id. at ¶ 5. According to Jones, delays in the treatment of a physical illness of a patient who has been institutionalized can result in feelings of isolation, hopelessness, and despair, as well as increased stress and anxiety. Id. at ¶ 11. St. Elizabeths’ failure to provide safety, security, predictability, and continuity of care
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is counter to effective treatment and has resulted in fear and actual harm, including regression, loss of self-esteem, and exacerbation of distress and heightened instability, leading to longer lengths of hospitalization and the likelihood of more restrictive measures such as loss of privileges or the use of seclusion or restraints. Id. at ¶ 12. Jones has concluded based on her review of the statements of the Plaintiffs that the conditions at St. Elizabeth’s Hospital presented a clear risk to health of safety and drastic deterrents to treatment, recovery, and timely discharge of the its patients. Id. at ¶ 16.
Every day during the current crisis, Plaintiffs are being deprived of the essentials of the care that the District is required to provide. See Youngberg, 457 U.S. at 324. As described by Jones, irreparable harm is occurring with each passing day as the conditions at St. Elizabeth’s “inevitably will result in long lasting, if not permanent, damages to the patients and their efforts at recovery” (Jones Decl. ¶ 16), demonstrating the need for the relief Plaintiffs seek here.
In addition to the present danger, there is a serious danger of recurrent violation because this is the third time in three years that patients at St. Elizabeths have been subjected to dangerous conditions of various kinds when, in the face of a crisis at the Hospital, Defendants failed to respond with necessary measures to protect patients. The Defendants’ Emergency Protocols have now thrice failed to provide safe or humane conditions of confinement, or adequate mental health or other care during a crisis.
3. Enjoining Defendants from Failing to House and Treat Involuntarily Committed Persons in Conditions that Meet the Most Basic Standard of Decency Will Not Substantially Injure Defendants or Other Interested Parties
As discussed, supra, Plaintiffs and others similarly situated, will suffer irreparable harm in the absence of relief from this Court. In contrast, the injunction would impose no measurable harm on Defendants. When a government entity involuntarily commits persons to its custody, it has an
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obligation to provide essentials. Youngberg v. Romeo, 457 U.S. 307, 324 (1982). Defendants have no legal right to confine Plaintiffs and others where they are exposed to a dangerous and lifethreatening risk.
As outlined in the relief section, there are measures Defendants can take to address the risks of COVID-19 as well as patient and public safety that would allow Defendants to transfer Plaintiffs and other similarly situated individuals to other appropriate facilities or discharge them (where appropriate) to community-based care. Indeed, it is Defendants’ affirmative obligation to do so when circumstances exist such that the isolation of individuals with disabilities is no longer justified. The ADA seeks to prevent not only intentional discrimination against people with disabilities, but also—primarily—discrimination that results from "thoughtlessness and indifference," that is, from "benign neglect." Alexander v. Choate, 469 U.S. 287, 301 (1985); see H.R. Rep. No. 101-485(II), at 29 (1990). Thus, the law requires "affirmative accommodations to ensure that facially neutral rules do not in practice discriminate against individuals with disabilities." Henrietta D. v. Bloomberg, 331 F.3d. 261, 275 (2d Cir, 2003); see also Tennessee v. Lane, 541 U.S. 509, 511 (2004) ("Recognizing that failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion, Congress required the States to take reasonable measures to remove . . . barriers to accessibility."); 42 U.S.C. § 12112(b)(5)(A) (defining discrimination to include failing to "mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability"). Defendants’ continued isolation of Plaintiffs due to their refusal to modify their evaluation and release policies in light of the COVID-19 pandemic is unreasonable and the risks Plaintiffs and Plaintiffs class are being subjected to in this case are even more egregious than the facts in Alexander v. Choate as Defendant’s indifference towards Plaintiffs is not benign, but subjects them
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to an unreasonable risk of contracting a highly communicable, potentially fatal virus all while depriving them of necessary mental health services. Defendants provide a wide array of services in the community to meet the needs of Plaintiffs including diagnostic/assessment services, counseling, medication, intensive day treatment and crisis/emergency services.43 Individualized behavioral health services are supported by rehabilitation programs, peer supports, supportive employment opportunities, housing assistance and a range of community housing alternatives to facility-based care.44 These services are being provided by Defendants during the COVID-19 crisis and could be provided to Plaintiffs and Plaintiff class in the community.
As described in the Jones Declaration, this process would involve conducting an individualized assessment of each patient by St. Elizabeths staff. Jones Decl. ¶ 17(b). This assessment could be made by the Medical Director, and would require consideration of whether other options exist in lieu of continued placement at St. Elizabeths. Jones Decl. ¶ 17(d). Because the assessments could be made with current employees of Defendants and the costs of placing patients in community settings or to private hospitals are roughly comparable (if not less expensive) than housing the individuals at St. Elizabeths, there is no reason to believe that ordering the requested relief will substantially injure Defendants.
Similarly, there is no reason why Defendants should not stop the admissions of new patients. Individuals who would ordinarily be sent to Saint Elizabeths can be sent to a community setting with support, or if supervision is essential, to a private psychiatric hospital in the District, and there is no reason to believe that ordering such relief will substantially injure Defendants.
43 Dist. Of Columbia, Dep’t of Behavioral Health, Adult Services, available at https://dbh.dc.gov/service/adultservices 44 Id.
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4.

A TRO Will Serve the Public Interest.

The public interest is served when constitutional and statutory rights are protected. “It is

always in the public interest to prevent the violation of a party’s constitutional rights.” Simms v.

District of Columbia, 872 F. Supp. 2d 90, 105 (D.D.C. 2012) (quoting Abdah v. Bush, No. 04-cv-

1254, 2005 WL 711814 at *6 (D.D.C. Mar. 29, 2005)); accord Lamprecht v. F.C.C., 958 F.2d 382,

390 (D.C. Cir. 1992) (“a [government] policy that is unconstitutional would inherently conflict

with the public interest”). In the instant case, the public interest would be vindicated by honoring

individual civil rights and restoring basic standards of decency to the treatment of Plaintiffs and

other patients at the Hospital during future crises. As long as departing residents are held in

appropriate isolation, the risk to public health is much greater keeping them at Saint Elizabeths

than transferring them elsewhere or letting them out—inside the facility, they will continue to

spread COVID-19 within the congregate setting and infect more staff, who will further infect the

community. Outside, they can self-isolate after quarantine just as the Mayor has ordered everyone

else to do.

REQUESTED REMEDY

Defendant’s policies and practices have led to untenable conditions that have placed

patients at Saint Elizabeths at an “imminent and heighted risk from COVID-19.” Stern Decl. ¶ 12.

Further, Defendants have deprived patients of necessary care and created a chaotic environment

that, if allowed to continue, will be “drastic deterrents to treatment, recovery and timely discharge.”

Jones Decl. ¶ 16. The Court should order emergency relief to accomplish two things. First, it

should order the Department of Behavioral Health to follow public health guidelines for preventing

and controlling the spread of COVID-19 at Saint Elizabeths Hospital, including, after conducting

individualized assessments, significantly reducing the patient population at the Hospital. Second,

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it should enjoin Defendants from further damaging Plaintiffs’ mental health by continuing lack of essential treatment.
1. Significant downsizing of Saint Elizabeths Hospital is the most effective way to prevent and control the spread of COVID-19 among the patients. Stern Decl. ¶¶ 13-15; Jones Decl. ¶¶ 17(a) & 17(j)(ii). To this end, the Court should order Defendants to:
a. Cease all admissions to the Hospital until the density at St. Elizabeths is sufficiently reduced to allow for social distancing and patients at the hospital are no longer at a heightened risk due to COVID-19;
b. Conduct an individualized assessment of each patient, within 48 hours, to assess the current effect of these conditions on the patient and to determine whether other options exist in lieu of continued placement at St. Elizabeths. This assessment should be conducted with input from the patient’s treatment team, the patient’s attorney, and/or the protection and advocacy agency for the District.
c. Evaluate all patients for community placement, conduct a risk assessment, identify potential community-based supports that build on existing systems of care, and then, whenever possible, recommend release.
d. Implement release recommendations from the assessment team consistent with public health guidelines for quarantining and isolating patients who may have been exposed to COVID-19.
e. Develop a staffing contingency plan that includes employing sufficient qualified temporary staff to ensure adequate infection control and that patients receive necessary treatment and care in light of staffing shortages.
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2. To the extent continued placement at St. Elizabeths is the only reasonable option for some individuals, the Court should order Defendants to:
a. Provide appropriate COVID-19 intervention and care at the Hospital, including (i) evaluating patients and where appropriate administering rapid COVID-19 tests; (ii) ensuring clinically effective isolation and quarantine for patients with confirmed and suspected COVID-19 cases; and (iii) determining equipment needs and immediately providing masks for any individuals displaying or reporting COVID-19 symptoms or exposure until they can be evaluated by a qualified medical professional or placed in quarantine;
b. Ensure that each patient has timely and complete access to essential hygiene, including soap, hand sanitizer, and running water, and materials needed to disinfect surfaces that may be contaminated;
c. Develop capacity for patients, who are not infected and for whom release is not possible, to be housed in an auxiliary facility until the density at St. Elizabeths is sufficiently reduced to allow for social distancing, and implement social distancing in accordance with public health guidelines.
d. Ensure robust education about COVID-19 for patients, including education about how to identify symptoms, how to take preventative measures, how to contact patient advocates, and about any changes in policies and practices at the Hospital. There should be sufficient opportunity to ask and receive answers to questions.
3. The conditions at Saint Elizabeths are also causing irreparable harm to the Plaintiffs. All patients at Saint Elizabeths are, by definition, in need of psychiatric care. Yet during this crisis, Defendants have ceased providing key components of that care and are not systematically
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providing alternatives that can be implemented consistent with COVID-19 public health

guidelines, such as virtual or telemedicine alternatives. To remedy this, the Court should order

Defendants to conduct individual assessments of each patient, with input from the patient’s

treatment team, the patient’s attorney, and/or other supportive decision makers as determined by

the patient, to assess the effects of the stress and trauma of the current COVID-19 pandemic and

the repercussions that Defendants’ deprivation of appropriate mental health services has had on

the patient’’ mental health status. If the assessment determines that changes to a patient’s treatment

plans are needed, such changes should be implemented immediately.

4. Finally, the Court should order that the Defendants provide the Court and Plaintiffs with

daily reports to ensure that the measures laid out in the Court’s order are being followed. To that

end, the daily report should include (i) the daily census of patients, (ii) the number of admissions,

(iii) the number of individualized assessments completed, (iv) the number of patients the

assessment team has recommended released and the number of patients recommended for release

or change in treatment, as well as any instance where the recommendation for release or treatment

has not been implemented, (v) for any patient remaining in the facility, their COVID-19 status and

their quarantine or isolation status, (vi) the daily staff census, and (vii) all complaints reported to

the Hospital’s patient advocate.

Dated: April 16, 2020

Respectfully submitted,

/s/ John A. Freedman John A. Freedman (D.C. Bar No. 453075) Tirzah S. Lollar (D.C. Bar No. 497295) Brian A. Vaca (D.C. Bar No. 888324978) ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Avenue, N.W. Washington, D.C. 20004 (202) 942-5000 John.Freedman@arnoldporter.com Tirzah.Lollar@arnoldporter.com

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Brian.Vaca@arnoldporter.com Kaitlin Banner (D.C. Bar No. 1000436) Margaret Hart (D.C. Bar No. 1030528) Hannah Lieberman (D.C. Bar No. 336776) Jonathan Smith (D.C. Bar No. 396578) WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 700 14th Street, NW, Suite 400 Washington, DC 20005 Phone: (202) 319-1000 Fax: (202) 319-1010 kaitlin_banner@washlaw.org margaret_hart@washlaw.org hannah_lieberman@washlaw.org jonathan_smith@washlaw.org Scott Michelman (D.C. Bar No. 1006945) Arthur B. Spitzer (D.C. Bar No. 235960) Michael Perloff (D.C. Bar No. 1601047) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF THE DISTRICT OF COLUMBIA 915 15th Street NW, Second Floor Washington, D.C. 20005 (202) 457-0800 smichelman@acludc.org aspitzer@acludc.org mperloff@acludc.org
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I, Elizabeth Jones, declare and state the following: Relevant Experience
1. I have over 35 years of experience managing the provision of services to people with intellectual and behavioral health disabilities, including managing public sector psychiatric hospitals in Massachusetts, Maine, and the District Columbia.
2. I currently serve as the court-appointed Independent Reviewer in United States v. Georgia, Civ. Action No. 1:10-CV-249-CAP, overseeing implementation of a federal consent decree requiring the development of integrated community-based services and supports as alternatives to institutionalization for individuals with developmental disabilities and/or mental illness in the State of Georgia.
3. From 2004 until 2017, I served as the Court Monitor in Evans v. Bowser, Civ. Action No. 76-293, a federal class action lawsuit concerning the care and treatment of people with intellectual and developmental disabilities in the District of Columbia. As Court Monitor, I oversaw and reported on implementation of court orders related to the development of community-based, individualized services/supports for former residents of the District- operated Forest Haven institution (now closed) for children and adults with intellectual and/or developmental disabilities.
4. From 2001 until 2004, I was the Senior Planner for the District of Columbia’s newly formed Department of Mental Health, where I was responsible for planning systemic initiatives that improve the quality of care/treatment for individuals with serious mental illness.
5. I was the Hospital Director for St. Elizabeths Hospital from February 1998 through April 2000. I then became the Chief Operating Officer for the District of Columbia’s Commission on Mental Health Services while it was under federal court receivership.
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6.

I have reviewed the April 16, 2020 Amended Complaint in Costa v. Bazron,

No 1:19-cv-3185 (RMD)(DDC) and the declarations of Hadley Truettner, Ashley Guzman,

Wanda Rose, Penelope Donkar and Danielle Mason.

Patients at St. Elizabeths Hospital

7. Individuals who have been admitted to St. Elizabeths Hospital have serious and persistent mental illness and have been determined by the District to need intensive inpatient care to support their recovery.
8. Admission to a psychiatric institution is a serious decision that seeks to prevent or ameliorate harm; enable an individual to return to a productive life as a member of his or her community; and provide a dignified, respectful and supportive environment characterized by stability, security, and generally accepted standards of individualized treatment, continuity of care, professionalism, health, and safety. Institutionalization should be a last resort when community supports are not sufficient and as short as is necessary to provide treatment of care that would permit the individual to live in a more integrated setting.
9. To achieve these goals, the hospital setting must be safe, calm, predictable in its routine, and responsive to each individual’s needs for treatment.
10. An environment that is chaotic, unpredictable, and unsafe, and in which patients are not receiving individualized, continuous, intensive treatment risks traumatizing people further and exacerbating the psychiatric needs that were the basis for their admission.
11. Since institutionalization in a psychiatric facility restricts self-determination, freedom of movement, curtailment of access to social networks and integration into communitybased settings and activities, delays in the treatment of a psychiatric illness in this setting can result in feelings of isolation, feelings of hopelessness, despair and increased stress/anxiety.

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12. The failure to provide safety, security, predictability, and continuity of care is counter to effective treatment and results in fear of harm and actual harm, including regression, loss of self-esteem, and exacerbation of distress and heightened instability, leading to longer lengths of hospitalization and the likelihood of more restrictive measures, such as loss of privileges or the use of seclusion and/or restraints.
Effects of Current Conditions at St. Elizabeths Hospital 13. As reported to me in the declarations cited above, patients at St. Elizabeths are not receiving their regular psychiatric care. Patients are confined to their units and their rooms and are unable to attend regularly scheduled therapy. Patients have not been provided with any consistent alternative virtual or telephonic therapy. 14. It is my understanding that treatment planning meetings, observation of the implementation of treatment plans, requisite documentation, and other expected activities and oversight are not able to take place because of the chaotic situation created by COVID-19. 15. It is my understanding that patients at Saint Elizabeths Hospital are not able to maintain six feet of distance between themselves and other people (“social distancing”) and are sharing common space with other patients and staff on their Units. It is my understanding, based on the documents I have reviewed, that patients are not being tested for COVID-19 rapidly; asymptomatic patients are not being quarantined or isolated from patients who have tested positive for COVID-19 or who have been exposed to COVID-19; and that there are large staff absences from Saint Elizabeths. 16. The conditions at St. Elizabeths Hospital, as described to me, are a clear risk to health and safety. They are drastic deterrents to treatment, recovery and timely discharge. They risk traumatizing patients and exacerbating symptoms of mental illness and inevitably will result
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in long lasting, if not permanent, damage to the individuals and their efforts at recovery. Without a doubt, these circumstances violate professional standards of care and treatment.
Remedy 17. The current conditions at St. Elizabeths Hospital, as described to me, are shockingly unacceptable and immediate action needs to be taken to prevent further harm. Based on my experience managing the provision of treatment to individuals with mental illness in the District, including at St. Elizabeths Hospital, and elsewhere, I recommend the following steps be taken:
a. Cease all admissions to the Hospital until the density at St. Elizabeths is sufficiently reduced to allow for social distancing.
b. Ensure that each patient has a treatment plan to mitigate the trauma of the current conditions.
c. The Medical Director at Saint Elizabeths Hospital should conduct individual assessments of patients with input from the patients’ treatment team, his/her attorney, and/or other supportive decision makers as determined by patient choice to assess the effects of the stress and trauma of the impact of the current COVID-19 pandemic, and the repercussions Defendants’ deprivation of appropriate mental health services has had on patients’ mental health status and determine if changes to individual patients’ treatment plans are needed and implement any changes and recommendations from the individualized assessments immediately.
d. The Medical Director at St. Elizabeths Hospital should conduct an individualized assessment of each patient to assess the current effect of these conditions on the patient and determine whether other options exist in lieu of continued placement at St. Elizabeths. This assessment should be conducted with input from the patient’s treatment team,
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his/her attorney, and/or the protection and advocacy agency for the District. e. The assessment team, as described above, should evaluate all patients for
community placement, conduct a risk assessment, identify potential community-based supports that build on existing systems of care, and then, whenever possible, recommend release.
f. In making this determination, the Medical Director must consider a full range of alternative treatment options, including those currently or potentially available in the community.
g. Some individuals may be able to be discharged to a community setting with support, for example, from an Assertive Community Treatment (ACT) Team or other community-based supports.
h. Action should be taken in each case in a timely manner. All assessments must be completed within 48 hours and the recommendations from the assessments must be implemented immediately.
i. Under no circumstances should an individual be transferred to a nursing home or jail.
j. If continued placement at St. Elizabeths is the only reasonable option, then the following should occur:
i. Provide appropriate COVID-19 intervention and care at the Hospital with teams of medical professionals and infection experts who can: a. Develop, update, and implement best practices for reducing the infection rates at Saint Elizabeths Hospital, including providing appropriate and accessible guidance to staff and patients;
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b. Administer rapid COVID-19 tests for anyone displaying known symptoms of COVID-19 or who has been exposed to someone with known symptoms or who has tested positive for COVID-19;
c. Ensure segregation of confirmed and suspected COVID-19 cases;
d. Determine equipment needs and immediately provide masks for any individual displaying or reporting COVID19 symptoms or exposure until they can be evaluated by a qualified medical professional or placed in quarantine;
e. Ensure that each patient has timely and complete access to essential hygiene;
f. Provide on-site care and medical assessment, including medical care and therapy that is appropriate for each individual’s needs.
ii. Develop capacity for patients, who are not infected and for whom release is not possible, to be housed in an auxiliary facility until the density at St. Elizabeths is sufficiently reduced to allow for social distancing, and implement social distancing in accordance with public health guidelines.
iii. Frequently communicate with patients to provide information about COVID-19, reducing the risk of transmission, and any changes in policies or practices.
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iv. Ensure robust education to patients, including sufficient opportunity to ask and receive answers to questions about COVID-19, how to identify symptoms, and how to take preventative measures.
v. Ensure expedited access to both independent and internal patient advocates in order to address any patient concerns about their medical care or the conditions in the Hospital.
vi. Assigned dedicated staff to each Unit and do not move staff between Units except to comply with public health recommendations regarding the segregation of people with COVID-19 symptoms, exposure, or positive tests so that patients develop a relationship with the staff person who is caring for them.
vii. Ensure patients are able to go outside daily and recreate while maintaining appropriate social distance.
18. Develop a staffing contingency plan that includes employing sufficient qualified temporary staff to ensure adequate infection control and that patients receive necessary treatment and care in light of staffing shortages.
19. Provide daily reporting to the Plaintiffs’ attorneys about the number of patients, their COVID-19 status, their quarantine status, the number of staff who reported to work, the number of restraint and seclusion events (including medical restraint), and all complaints reported to the Hospital’s patient advocate.
20. The Court should continue to provide oversight until these damaging and utterly substandard circumstances have ended. A timetable should be agreed upon and penalties should be assessed if the timelines are not met.
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Case 1:19-cv-03185-RDM Document 39-2 Filed 04/18/20 Page 8 of 18 I declare, under penalty of perjury, that the forgoing is true and correct. Executed on April 17, 2020. Elizabeth Jones
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RESUME
ELIZABETH JONES
Address: 608 Symphony Woods Drive Silver Spring, MD 20901 elzjns@aol.com (240) 423-4648

EDUCATION
Bachelor of Arts, English, University of California at Santa Barbara, 1972.
Graduate work (20 credit hours) in Educational Psychology, Georgia State University, Atlanta, GA, 1976-77.
Master of Science, Labor Studies, University of Massachusetts, Amherst, Labor Relations and Research Center, 1982. Thesis focused on the Rhode Island Labor/Management agreement regarding the transfer of public employees from institutional to communitybased programs.
Program for Senior Executives in the Commonwealth of Massachusetts, Kennedy School of Government, Cambridge, MA, 1983.
Web-based Certificate Course in Supported Employment, Virginia Commonwealth University, Rehabilitation Research and Training Center on Workplace Supports, Richmond, VA, 2002.

WORK EXPERIENCE

October 28, 2010 to present:

Independent Reviewer United States v. State of Georgia

With agreement of the Parties, appointed by the United States District Court to review the State of Georgia’s implementation of a Settlement Agreement requiring the development of integrated community-based services and supports as alternatives to institutionalization for individuals with developmental disabilities and/or mental illness.

February 10, 2004 to January 10, 2017: Court Monitor Washington, DC

Appointed as Court Monitor in Federal Court class action litigation, Evans v. Bowser, brought to compel the development of community-based, individualized services/supports for former residents of the District-operated Forest Haven institution

Case 1:19-cv-03185-RDM Document 39-2 Filed 04/18/20 Page 10 of 18

(now closed) for children and adults with intellectual and/or developmental disabilities. Responsibilities included oversight of all monitoring activities, management of the Court Monitoring Office, reporting to the Federal Court, and working with the Parties to identify issues/concerns affecting compliance with longstanding court orders and agreements.

November 5, 2003 to December 31, 2004: Receiver Riverview Psychiatric Center/Augusta Mental Health Institute Augusta, ME

Appointed by the Maine Superior Court in the Bates v. Harvey case, class action litigation brought in 1989 to ensure the provision of mental health treatment to current and former clients of the Augusta Mental Health Institute. Responsibilities included oversight of all Hospital management and operations, preparation and implementation of a work plan that will lead to compliance with the Consent Decree, and monthly reporting to the Court. The Receivership was vacated by the Law Court of Maine in December 2004.

August 1, 2001 to February 10, 2004:

Senior Planner District of Columbia Department of Mental Health Washington, DC

Within the newly formed Department of Mental Health, responsible for planning systemic initiatives that improve the quality of care/treatment for individuals with serious mental illness. Major responsibility for the Department’s evidence-based supported employment initiative, including the Ticket to Work; development of core curriculum for employment specialists; implementation of the Johnson & Johnson-Dartmouth Community Mental Health Program grant award; data analysis of existing employment services; restructuring employment models no longer considered consistent with best practices; and interagency collaboration to expand employment options for adults and youth with serious mental illness/emotional disturbance. Additionally, exercised major responsibility for interagency efforts to improve services/supports for those clients with a dual diagnosis of mental illness/intellectual disability.

June 1, 2000 to August 1, 2001:

Chief Operating Officer District of Columbia Commission on Mental Health Services Washington, DC

April 1, 2000 to June 1, 2000:

Acting Chief Operating Officer

Under the direction of the Transitional Receiver, responsible for the day to day operations of the Commission including supervision of all administrative and programmatic functions; working with other government agencies and providers of services/supports to

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the Commission and its clients; collaborating with consumer groups, advocates, family groups and other interested parties to strengthen the mental health system’s responsiveness and effectiveness in meeting its mandates; participating in the design and implementation of systemic reform initiatives; overseeing the investigation and resolution of concerns impeding the delivery of services/supports of the highest possible quality.

February 1998 to April 2000:

Hospital Director St. Elizabeths Hospital Washington, DC

Overall management responsibility for the Acute Care and Continuing Care programs of a public psychiatric hospital then under Federal Court receivership pursuant to orders in the Dixon case, a longstanding class action lawsuit mandating the development of a comprehensive community based mental health system.

Responsibilities included direction and oversight of the provision of active treatment to approximately 375 clients; identification of appropriate community services for individuals no longer requiring stabilization in an inpatient setting; management of personnel and budget; work with advocates, families, legal representatives, community providers, community advocacy groups and public officials. As a member of the senior executive staff, responsible for working with the Receiver and colleagues to design, implement and evaluate strategies for systemic reform. Also responsible for the overall management of the CarePoint Project, an initiative designed to substantially reform and improve the provision of individualized services and supports.

June 1990 to February 1998:

Executive Director Disability Rights Maryland Baltimore, MD.

Disability Rights Maryland, formerly known as the Maryland Disability Law Center, is a public interest law firm funded mainly through federal and state grants and contracts. Pursuant to federal law, it has been designated since 1977 as the Protection and Advocacy System for the State of Maryland. Reporting to an independent Board of Directors, responsibilities as Executive Director included supervision of thirty-six staff, including thirteen attorneys and nine paralegals, and management of a two million dollar budget. Responsibilities also included planning, program implementation, liaison with advocacy groups and state agencies, public relations and playing a key role in the disability and public interest community.

July 1986 to June 1990:

Coordinator Dixon Implementation Monitoring
Committee Washington, D.C.

Coordinator for the Dixon Committee, a monitoring group established in 1980 by Federal District Judge Aubrey Robinson in the Dixon lawsuit. The Committee was mandated to

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receive and analyze defendant’s reports and factual investigations; screen and investigate complaints; oversee and report on the progress of the implementation of the Court’s decrees. Responsibilities as Coordinator included advising plaintiffs’ attorneys at the Mental Health Law Project (now the Bazelon Center for Mental Health Law) and at Covington and Burling on programmatic issues; serving as a liaison between the Committee and its attorneys as necessary; community organizing; conducting site visits; designing public education strategies; extensive public speaking; working with the media; fundraising; and developing and managing student internships with local colleges and universities.

December 1983 to July 1986:

District Manager Department of Mental Health Northampton, Massachusetts

Chief Executive Officer for five mental health and intellectual disability service areas (total population 800,000). Exercised responsibility for an approximately sixty million dollar budget. Overall responsibility for the implementation of the Brewster decree, a landmark Federal Court order governing the use of Northampton State Hospital and the development of community programs for people with mental illness. Responsibility for inpatient services at Northampton State Hospital until reorganization occurred. Extensive experience in working with organized labor, private provider agencies, local and state government officials, consumer and family advocates, the media and a wide spectrum of community groups interested in the mental health system and the implementation of necessary systemic reforms.

Management responsibilities also included planning; program development; program implementation; supervision of senior staff; community relations; dispute settlement; interagency coordination; budget preparation; oversight and monitoring; designation as appointing authority for all area-based state employees.

September 1983 to December 1983:

Director of Planning, Development and Compliance
Belchertown State School Belchertown, Massachusetts

Oversaw Belchertown State School’s compliance with federal, state and court mandates; coordinated all responses and compliance plans for the court under the Ricci v. Greenblatt decree and for federal Medicaid. Worked with local and state officials and agencies on issues related to the present and future uses of state school property; developed long-range initiatives for the use of state school resources; designed and implemented tools, methods and techniques for monitoring service delivery at the State School; designed and implemented training in quality assurance for staff at all levels of the organization.

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August 1982 to September 1983:

Acting Superintendent Belchertown State School Belchertown, Massachusetts

Overall management responsibility for the direction of a large residential facility for individuals with an intellectual disability. Responsibilities included the implementation of a consent decree resulting from a federal class action lawsuit, Ricci v. Greenblatt. Management functions also included personnel authority over 1,400 staff; supervision of senior staff; oversight of budget preparation and spending for direct resources of over twenty eight million dollars in state and federal funds; labor relations; community relations; participation in the planning and implementation of community programs for clients with an intellectual disability in District I; and planning on statewide issues. Initiated the development of self-advocacy programs for the residents of Belchertown State School.

Worked as a primary member of the regional senior management team to plan and ensure the implementation of all necessary reforms in the provision of mental health and intellectual disability services to residents of Western Massachusetts and their families. Worked with senior management colleagues to design, coordinate and evaluate policies and program standards for all components of the systems in Western Massachusetts as mandated by two Federal Court ordered consent decrees.

October 1977 to August 1982:

Director of Employee Services Belchertown State School Belchertown, Massachusetts

Responsible for the direct management and administration of all personnel, staff development and employee assistance programs. Responsible for labor/management activities including participation in state and national initiatives. Regional responsibilities included the development and support of staff development offices and programs. Coinvestigator for a federal grant on training and manpower development from 1979-80.

Worked as a member of the regional management team responsible for the design, coordination and evaluation of staff development strategies for mental health and intellectual disability programs in Western Massachusetts as stipulated in two court ordered consent decrees.

April 1977 to October 1977:

Community Residential Services Consultant
State of Georgia Division on Mental Health and Mental
Retardation Atlanta, Georgia

Responsible for the statewide planning and monitoring of community residential services for people with an intellectual disability, including those with a dual diagnosis of mental

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illness, particularly those in transition from institutional settings. Designed specific plans and processes for the placement of five hundred clients from state institutions throughout Georgia.

July 1976 to April 1977:

Advocacy Specialist Advocacy Planning Project Atlanta Association for Retarded Citizens Atlanta, Georgia

Responsible for the statewide design and implementation of a protection and advocacy system for people with developmental disabilities as specified in Public Law 94-103. Activities included the planning and implementation of public hearings throughout Georgia.

July 1975 to July 1976:

Community Services Consultant State of Georgia Division of Mental Health and Mental
Retardation Atlanta, Georgia

Supervision of community services workers monitoring the placement of people with an intellectual disability who had returned to the Atlanta area from state institutions.

April 1974 to July 1975:

Cottage Life Supervisor Georgia Mental Health Institute Atlanta, Georgia

Supervisor of staff working in a transitional living unit for adults with an intellectual disability, including those with a dual diagnosis of mental illness, previously institutionalized in state facilities.

November 1973 to April 1974:

Assistant Teacher Georgia Center for the
Multihandicapped Dekalb County Schools Atlanta, Georgia

Assisted in the evaluation of school-aged children with multiple disabilities, including deafness and/or blindness. Assisted in the coordination of community-based services for these children in order to support their individual and family needs.

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January 1971 to October 1971:

Editorial Assistant Department of Anthropology University of Turin Turin, Italy

Editing of manuscripts on primate classification. Editing and preparation of journal articles on genetics for the Academic Press, London. Teaching of English to graduate students at the University of Turin.

January 1969 to June 1970:

Board of Education Dayton, Ohio

Teacher of remedial class for seventh and eighth grade inner city children bused to suburban school to meet desegregation mandates.

CURRENT CONSULTATION
New York: Expert consultant for the Plaintiffs in Disability Advocates, Inc. v. Paterson, later refiled as O’Toole v. Cuomo, class action litigation brought on behalf of the residents of adult board and care homes in New York (June 2004-present).
Virginia: Expert consultant to the Independent Reviewer for the Settlement Agreement in United States v. Commonwealth of Virginia (July 2012-present).
North Carolina: Expert consultant to the Independent Reviewer for the Settlement Agreement in United States v. North Carolina (March 2015-present).

PAST CONSULTATION
Oregon: Expert consultant to the Independent Reviewer regarding compliance with the provisions of the Oregon Performance Plan (May-June 2018).
Puerto Rico: Assistant to the Court Monitor (January 2016). Under the supervision of the Court Monitor, assisted in the review of an outpatient mental health center previously under Federal Court supervision in Navarro v. Governor.
Maine: Consultant to the Court Master (August 2010 to 2015). Appointed Court Monitor by the Superior Court in order to document the funding for the adult mental health system and describe the impact of that funding on the Defendant’s ability to achieve substantial compliance in Bates v. Harvey (August 2008-January 2010).
Consultant to the State Department of Health and Human Services regarding mental health services related to achieving compliance in the Bates v. Harvey case (February-June 2006).

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Illinois: Expert consultant to the Court Monitor in Williams v. Quinn, class action case brought on behalf of individuals with mental illness who are confined to intermediate care nursing homes (October-December 2014). Expert witness to the Plaintiffs in Williams v. Quinn (February 2007-September 2010).
Texas: Member of the Monitoring Team reviewing compliance with the Department of Justice Settlement Agreement for Lubbock State Supported Living Center and Austin State Supported Living Center. Designated with expertise in protection from harm (November 2009-January 2013).
Expert consultant for the Plaintiffs in Lelsz v. Kavanagh, a class action lawsuit regarding the rights of individuals with an intellectual disability residing in institutions funded by the State of Texas (1991-1992).
Connecticut: Expert witness for the Plaintiffs in Messier v. Southbury Training School (September 2009-February 2010).
Virginia: Expert consultant to the Virginia Office of Protection and Advocacy regarding the death investigation of an individual confined to a state psychiatric hospital (November 2007-October 2008).
New York: Expert consultant to Touro Law Center in Rothenberg v. State, a case brought on behalf of an individual confined to a state psychiatric hospital (July 2004); Monaco v. Carpinelli regarding involuntary commitment evaluations (August 2006); and Sparks v. Seltzer regarding visitor restrictions on an inpatient ward (December 2006).
Paraguay: Expert consultant to Mental Disability Rights International on the reform of the mental health system in Paraguay. Action was taken pursuant to the Inter-American Commission on Human Rights’ decision to grant precautionary measures regarding the Neuro-Psychiatric Hospital in Asuncion (2005-2010).
Kosovo: Expert consultant to Mental Disability Rights International for the development of a plan to assist the government of Kosovo in replacing the Shtime Institution with community based services/supports (November 2006-2007).
Bulgaria: In collaboration with Amnesty International and Mental Disability Rights International, expert consultant for the Bulgaria Helsinki Committee. Visited eight institutions for children and adults with an intellectual disability and/or mental illness in order to provide recommendations for systemic reform. Guest presenter at the Bulgarian Psychiatric Association’s annual conference (October 2001-2002).
Massachusetts: Expert witness for the plaintiffs in Rolland v. Celluci. Case involved the right to habilitation for individuals with an intellectual disability/developmental disabilities confined to nursing homes (1999-2004).
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Ireland: Guest lecturer to students/faculty at the Center for the Study of Developmental Disabilities, University College of Dublin, on contemporary issues in the field of intellectual disability 1999-2003).
Pennsylvania: Consultant for the Special Master in Halderman v. Pennhurst (May 1996January 1997).
Romania: Consultant for Mental Disability Rights International on the development of services/supports for people with an intellectual disability (November 1995-1997).
District of Columbia: Expert consultant for the Department of Justice, PlaintiffIntervenor in Evans v. Bowser, a class action lawsuit filed in Federal Court on behalf of individuals with a developmental disability institutionalized at Forest Haven (February 1995-May 1995).
Massachusetts: Expert consultant for the Defendants regarding the implementation of the consent decrees regarding the state schools (1992).
North Dakota: Consultant for the Protection and Advocacy System regarding systemic issues affecting individuals with mental illness institutionalized in state psychiatric facilities (1992).
Iowa: Expert consultant for the Plaintiffs in O’Connor v. Branstad, a class action lawsuit on behalf of individuals with an intellectual disability residing in two state schools (May 1989 to 1994).
New Mexico: Expert witness in Robbins et al. v. Budke, a class action case concerning access of the Protection and Advocacy System to a state hospital (December 1989).
Michigan: Expert witness in Kope v. Watkins, a class action lawsuit on behalf of individuals with an intellectual disability living in nursing homes (January 1989-1993).
Louisiana: Consultant to the Special Master in the Gary W. case in the New Orleans region (Spring 1986).
England and Wales: Consultant on the development of intellectual disability services for the Sheffield Health Authority, Manchester Health Authority and NINROD of Cardiff, Wales (October 1984).
PRIOR WORK IN OTHER LITIGATION
In Monaco v. Carpinelli, Sparks v. Seltzer, and Williams v. Quinn, I was deposed.
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Case 1:19-cv-03185-RDM Document 39-2 Filed 04/18/20 Page 18 of 18 In Rolland v. Celluci, DAI v. Paterson and Messier v. Southbury Training School, I provided deposition and trial testimony. In Williams v. Quinn and O’Toole v. Cuomo, I testified at the Fairness Hearings. In Robbins et al. v. Budke, I provided trial testimony.
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DECLARATION OF DR. MARC STERN, MD MPH

On this 17th day of April, 2020, I hereby declare:

1. My name is Marc Stern. I am a board-certified internist specializing in health care

for incarcerated populations. I have managed health care operations and practiced health care in

multiple correctional settings. Most recently, I served as the Assistant Secretary of Health Care

for the Washington State Department of Corrections.

2.

My experience includes the delivery of health care services to prisoners

with serious mental illness and/or chronic medical conditions. The Washington State Corrections

currently system has 19,000 prisoners. Each of its major institutions provides mental health

services. Several of the facilities in the system deliver temporary or short-term in-patient

psychiatric care for crisis management and stabilization. If higher level chronic mental health care is

required, it is provided in specialized residential mental health treatment units.

3.

I received a Bachelor of Science degree from State University of New

York (Albany) in 1975, a medical degree from State University of New York (Buffalo) in 1982,

and a Master of Public Health from Indiana University (Bloomington) in 1992. I am an Affiliate

Assistant Professor at the University of Washington School of Public Health.

4.

On a regular basis, I investigate, evaluate, and monitor the adequacy of

health care delivery systems in correctional institutions on behalf of a variety of parties including

federal courts. My prior experience includes working with the Office of Civil Rights and Civil

Liberties of the U.S. Department of Homeland Security; the Special Litigation Section of the

Civil Rights Division of the U.S. Department of Justice; and state departments of corrections and

county jails.

5.

Through 2013, I taught the National Commission on Correctional Health

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Case 1:19-cv-03185-RDM Document 39-3 Filed 04/18/20 Page 2 of 18

Care’s (NCCHC) correctional health care standards semi-annually to correctional health care

administrators at NCCHC’s national conferences. I authored a week-long curriculum

commissioned by the National Institute of Corrections of the U.S. Department of Justice to train

jail and prison wardens and health care administrators in the principles and practice of operating

safe and effective correctional health care operations, and served as the principal instructor for this

course.

6.

In the past four years alone, I have been qualified as an expert in several

jurisdictions on correctional health care systems and conditions of confinement. My full curriculum

vitae is attached hereto as Exhibit A.

7.

I am not receiving payment in exchange for providing this affidavit to the

Washington Lawyers’ Committee for Civil Rights and Urban Affairs regarding appropriate

healthcare measures during the COVID-19 pandemic for institutionalized populations. In light of

the emergency conditions occurring in institutions across the country, I am providing my services

pro bono.

8.

I am familiar with the coronavirus that causes COVID-19 from a clinical

perspective, including its causes and conditions, its transmission – especially in crowded and

unsanitary conditions – and its ability to quickly spread through congregate settings.

9.

In the context of a pandemic like the one we currently face, public health and

public safety interests are closely intertwined. When and if staffing challenges arise due to the

need for staff to quarantine, seek treatment, or care for dependents, managing internal safety in

institutional settings becomes even more challenging. Understaffing is dangerous for staff as well

as institutionalized people.

10.

I have reviewed the April 16, 2020 Amended Complaint in Costa v. Bazron,

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Case 1:19-cv-03185-RDM Document 39-3 Filed 04/18/20 Page 3 of 18

No 1:19-cv-3185(RMD)(DDC) and the declarations of Danielle Mason, Ashley Guzman, Hadley

Truettner, Penelope Donkar, William Dunbar, Enzo Costa, Vinita Smith, and Wanda Rose.

11.

I have also reviewed the April 15, 2020 Mayor’s Order 2020-063, Extensions

of Public Health Emergency and Public Health Emergency and Measures to Protect Vulnerable

Populations During the COVID-19 Public Health Emergency.

12.

Assuming the facts described are true, the patients and staff at St. Elizabeth’s

Hospital are placed at an imminent and heightened risk from COVID-19 due to dangerous

conditions, including but possibly not limited to: failure to ensure safe distancing between

residents along with failure to provide them with masks, failure to provide adequate soap for

hand hygiene, failure to place persons with suspected or proven COVID-19 infection in isolation

or effective isolation, and failure to place persons who have had close contact with person

suspected or proven to have COVID-19 in isolation in a timely manner.

13.

Institutional settings are congregate environments where people live, eat, and

sleep closely together. In these environments, infections like COVID-19 can spread more rapidly.

Downsizing institutional populations serves two critical public health aims: (1) targeting

residents who are at elevated risk of suffering from severe symptoms of COVID-19; and (2)

allowing those who remain confined to better maintain social distancing and avoid other risks

associated with forced communal living. Because vulnerable populations are at the highest risk

of severe complications from COVID-19, and because when they develop severe complications

they will be transported to community hospitals—thereby using scarce community

resources (ER beds, general hospital beds, ICU beds)—avoiding disease in this population is a critical contribution to public health overall.

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Case 1:19-cv-03185-RDM Document 39-3 Filed 04/18/20 Page 4 of 18
14. Thoughtful downsizing that weighs all the risks to the health of the individual as well as all risks the risks to public safety and public health, should be implemented in tandem with aggressive, responsive prevention measures that are developed and guided by public health and medical experts. Downsizing will help to “flatten the curve” overall—both within the institution and without. While prioritization should be given to those who are medically at-risk for complications of the virus, release of any individual contributes to reducing viral spread, as it is becoming clear that younger individuals are not protected from severe complications requiring hospitalization and placement in intensive care.
15. Downsizing of any congregate setting will reduce the risk of spread of virus. Given the aforementioned lapses in preventive measures, the value of downsizing is even greater.
16. At the same time authorities work to downsize the Hospital population where safe, it is critical that the D.C. Department of Behavioral Health immediately undertake or continue the following prevention and planning measures, some of which are not covered by the Mayor’s Executive Order 2020-063:
a. Implement guidance from the Center for Disease Control regarding Infection Prevention and Control (CDC) for COVID 19. The D.C. Department of Health must continually update its practices to align with the current CDC guidance, modified, as necessary to account for local conditions..
b. Immediate testing. Patients who require testing, based on public health recommendations and the opinion of a qualified medical professional, should be tested for COVID-19.
c. Immediate screening. Authorities must be required to screen each employee or other person entering the facility every day to according to current CDC or local health
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Case 1:19-cv-03185-RDM Document 39-3 Filed 04/18/20 Page 5 of 18
department guidelines A record should be made of each screening. d. Quarantine and Isolation. The Hospital must establish clinically effective
quarantine for all individuals believed to have been exposed to COVID-19, but are not yet symptomatic, and clinically effective isolation for those believed to be infected with COVID-19 and potentially infectious. Any individual who must interact with those potentially or likely infected with COVID-19 must utilize protective equipment, including masks, as directed by public health authorities. In short, every possible effort must be made to separate infected o r potentially infected individuals from the rest of the confined population. Once individuals have been potentially infected, they should be quarantined for an appropriate period of time and during that time period no new individual should be added to the quarantined cohort. Individuals requiring continued quarantine, isolation, or health care after release should be transferred from the institution to the appropriate outside venue.
e. Institutional Hygiene. The Hospital must be required to provide adequate sanitation of high use/high touch areas and rooms and bathrooms in accordance with CDC or local health authority guidelines. This includes a prompt way to dispose of tissues used by patients as well as staff.
f. Personal Hygiene. The Hospital must be required to provide hand soap, disposable paper towels, and access to water to allow residents to wash their hands on a regular basis. Hospital staff should be allowed to carry hand sanitizer with alcohol on their person, and residents should be allowed to use hand sanitizer with alcohol – under supervision if necessary – when they are in locations or activities where hand washing is not available.
5

Case 1:19-cv-03185-RDM Document 39-3 Filed 04/18/20 Page 6 of 18 g. Access to treatment. It is critical that patients have rapid access to responsive
medical treatment. Those with a cough should be provided masks as soon as they inform staff of this symptom or staff notice this symptom. 17. The measures I propose above are baseline steps to help slow the spread of COVID-19 in all facilities. However, each facility has its own unique combination of physical structure and layout, operations, policies, logistics, inmate characteristics, and staffing factors that determine what additional measures may be necessary to minimize the spread of COVID-19. Only a health expert who is able to review a particular facility firsthand can account for all of those factors and provide a meaningful and facility-specific opinion about what additional measures are necessary to reduce the risk of transmission. 18. I declare under penalty of perjury that the foregoing is true and correct.
Executed on April 17 2020
Marc Stern, MD MPH
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MARC F. STERN, M.D., M.P.H., F.A.C.P.

April, 2020

marcstern@live.com +1 (360) 701–6520

SUMMARY OF EXPERIENCE

CORRECTIONAL HEALTH CARE CONSULTANT

2009 – PRESENT

Consultant in the design, management, and operation of health services in a correctional setting to assist in evaluating, monitoring, or providing evidence-based, cost-effective care consistent with constitutional mandates of quality.

Current activities include: • COVID-19 Medical Advisor, National Sheriffs Association (2020 - )
• Advisor to various jails in Washington State on patient safety, health systems, and related health care and custody staff activities and operations, and RFP and contract generation (2014 - )
• Consultant to the US Department of Justice, Civil Rights Division, Special Litigation Section. Providing investigative support and expert medical services pursuant to complaints regarding care delivered in any US jail, prison, or detention facility. (2010 - ) (no current open cases)
• Physician prescriber/trainer for administration of naloxone by law enforcement officers for the Olympia, Tumwater, Lacey, Yelm, and Evergreen College Police Departments (2017 - )
• Consultant to the Civil Rights Enforcement Section, Office of the Attorney General of California, under SB 29, to review the healthcare-related conditions of confinement of detainees confined by Immigration and Customs Enforcement in California facilities (2017 - )
• Rule 706 Expert to the Court, US District Court for the District of Arizona, in the matter of Parsons v. Ryan (2018 - )

Previous activities include: • Consultant to Human Rights Watch to evaluate medical care of immigrants in Homeland Security detention (2016 -
2018)
• Consultant to Broward County Sheriff to help develop and evaluate responses to a request for proposals (2017 2018)
• Member of monitoring team (medical expert) pursuant to Consent Agreement between US Department of Justice and Miami-Dade County (Unites States of America v Miami-Dade County, et al.) regarding, entre outre, unconstitutional medical care. (2013 - 2016)
• Jointly appointed Consultant to the parties in Flynn v Walker (formerly Flynn v Doyle), a class action lawsuit before the US Federal District Court (Eastern District of Wisconsin) regarding Eighth Amendment violations of the health care provided to women at the Taycheedah Correctional Institute. Responsible for monitoring compliance with the medical component of the settlement. (2010 - 2015)
• Consultant on “Drug-related Death after Prison Release,” a research grant continuing work with Dr. Ingrid Binswanger, University of Colorado, Denver, examining the causes of, and methods of reducing deaths after release from prison to the community. National Institutes of Health Grant R21 DA031041-01. (2011 - 2016)
• Consultant to the US Department of Homeland Security, Office for Civil Rights and Civil Liberties. Providing investigative support and expert medical services pursuant to complaints regarding care received by immigration detainees in the custody of U.S. Immigration and Customs Enforcement. (2009 - 2014)
• Special Master for the US Federal District Court (District of Idaho) in Balla v Idaho State Board of Correction, et al., a class action lawsuit alleging Eighth Amendment violations in provision of health care at the Idaho State Correctional Institution. (2011 - 2012)
• Facilitator/Consultant to the US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, providing assistance and input for the development of the first National Survey of Prisoner Health. (2010-2011 )
• Project lead and primary author of National Institute of Corrections’ project entitled “Correctional Health Care Executive Curriculum Development,” in collaboration with National Commission on Correctional Health Care. NIC commissioned this curriculum for its use to train executive leaders from jails and prisons across the nation to better manage the health care missions of their facilities. Cooperative Agreement 11AD11GK18, US Department of Justice, National Institute of Corrections. (2011 - 2015 )

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Marc F. Stern, M.D.

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• Co-teacher, with Jaye Anno, Ph.D., for the National Commission on Correctional Health Care, of the Commission’s standing course, An In-Depth Look at NCCHC’s 2008 Standards for Health Services in Prisons and Jails taught at its national meetings. (2010 - 2013)
• Contributor to 2014 Editions of Standards for Health Services in Jails and Standards for Health Services in Prisons, National Commission on Correctional Health Care. (2013)
• Consultant to the California Department of Corrections and Rehabilitation court-appointed Receiver for medical operations. Projects included: o Assessing the Receiver’s progress in completing its goal of bringing medical care delivered in the Department to a constitutionally mandated level. (2009) o Providing physician leadership to the Telemedicine Program Manager tasked with improving and expanding the statewide use of telemedicine. (2009)
• Conceived, co-designed, led, and instructed in American College of Correctional Physicians and National Commission on Correctional Health Care’s Medical Directors Boot Camp (now called Leadership Institute), a national training program for new (Track “101”) and more experienced (Track “201”) prison and jail medical directors. (2009 - 2012)
• Participated as a member of a nine-person Delphi expert consensus panel convened by Rand Corporation to create a set of correctional health care quality standards. (2009)
• Convened a coalition of jails, Federally Qualified Health Centers, and community mental health centers in ten counties in Washington State to apply for a federal grant to create an electronic network among the participants that will share prescription information for the correctional population as they move among these three venues. (2009 2010)
• Participated as a clinical expert in comprehensive assessment of Michigan Department of Corrections as part of a team from the National Commission on Correctional Health Care. (2007)
• Provided consultation to Correctional Medical Services, Inc., St. Louis (now Corizon), on issues related to development of an electronic health record. (2001)
• Reviewed cases of possible professional misconduct for the Office of Professional Medical Conduct of the New York State Department of Health. (1999 – 2001)
• Advised Deputy Commissioner, Indiana State Board of Health, on developing plan to reduce morbidity from chronic diseases using available databases. (1992)
• Provided consultation to Division of General Medicine, University of Nevada at Reno, to help develop a new clinical practice site combining a faculty practice and a supervised resident clinic. (1991)

OLYMPIA BUPRENORPHINE CLINIC, OLYMPIA, WASHINGTON

2019 - PRESENT

Volunteer practitioner at a low-barrier clinic to providing Medication Assisted Treatment (buprenorphine) to opioid dependent individuals wishing to begin treatment, until they can transition to a long-term treatment provider

OLYMPIA FREE CLINIC, OLYMPIA, WASHINGTON

2017 - PRESENT

Volunteer practitioner providing episodic care at a neighborhood clinic which provides free care to individuals without health insurance until they can find a permanent medical home

OLYMPIA UNION GOSPEL MISSION CLINIC, OLYMPIA, WASHINGTON

2009 – 2014

Volunteer practitioner providing primary care at a neighborhood clinic which provides free care to individuals without health insurance until they can find a permanent medical home; my own patient panel within the practice focuses on individuals recently released jail and prison.

WASHINGTON STATE DEPARTMENT OF CORRECTIONS

2002 – 2008

Assistant Secretary for Health Services/Health Services Director, 2005 – 2008 Associate Deputy Secretary for Health Care, 2002 – 2005

Responsible for the medical, mental health, chemical dependency (transiently), and dental care of 15,000 offenders in total confinement. Oversaw an annual operating budget of $110 million and 700 health care staff.
• As the first incumbent ever in this position, ushered the health services division from an operation of 12 staff in headquarters, providing only consultative services to the Department, to an operation with direct authority and

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responsibility for all departmental health care staff and budget. As part of new organizational structure, created and filled statewide positions of Directors of Nursing, Medicine, Dental, Behavioral Health, Mental Health, Psychiatry, Pharmacy, Operations, and Utilization Management.
• Significantly changed the culture of the practice of correctional health care and the morale of staff by a variety of structural and functional changes, including: ensuring that high ethical standards and excellence in clinical practice were of primordial importance during hiring of professional and supervisory staff; supporting disciplining or career counseling of existing staff where appropriate; implementing an organizational structure such that patient care decisions were under the final direct authority of a clinician and were designed to ensure that patient needs were met, while respecting and operating within the confines of a custodial system.
• Improved quality of care by centralizing and standardizing health care operations, including: authoring a new Offender Health Plan defining patient benefits based on the Eighth Amendment, case law, and evidence-based medicine; implementing a novel system of utilization management in medical, dental, and mental health, using the medical staffs as real-time peer reviewers; developing a pharmacy procedures manual and creating a Pharmacy and Therapeutics Committee; achieving initial American Correctional Association accreditation for 13 facilities (all with almost perfect scores on first audit); migrating the eight individual pharmacy databases to a single central database.
• Blunted the growth in health care spending without compromising quality of care by a number of interventions, including: better coordination and centralization of contracting with external vendors, including new statewide contracts for hospitalization, laboratory, drug purchasing, radiology, physician recruitment, and agency nursing; implementing a statewide formulary; issuing quarterly operational reports at the state and facility levels.
• Piloted the following projects: direct issuance of over-the-counter medications on demand through inmates stores (commissary), obviating the need for a practitioner visit and prescription; computerized practitioner order entry (CPOE); pill splitting; ER telemedicine.
• Oversaw the health services team that participated variously in pre-design, design, or build phases of five capital projects to build complete new health units.

NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES

2001 – 2002

Regional Medical Director, Northeast Region, 2001 – 2002
Responsible for clinical oversight of medical services for 14,000 offenders in 14 prisons, including one (already) under court monitoring.
• Oversaw contract with vendor to manage 60-bed regional infirmary and hospice. • Coordinated activities among the Regional Medical Unit outpatient clinic, the Albany Medical College, and the 13
feeder prisons to provide most of the specialty care for the region.
• Worked with contracting specialists and Emergency Departments to improve access and decrease medical out-trips by increasing the proportion of scheduled and emergency services provided by telemedicine.
• Provided training, advice, and counseling to practitioners and facility health administrators in the region to improve the quality of care delivered.

CORRECTIONAL MEDICAL SERVICES, INC. (now CORIZON)

2000 – 2001

Regional Medical Director, New York Region, 2000 – 2001
Responsible for clinical management of managed care contract with New York State Department of Correctional Services to provide utilization management services for the northeast and northern regions of New York State and supervision of the 60-bed regional infirmary and hospice.
• Migrated the utilization approval function from one of an anonymous rule-based “black box” to a collaborative evidence-based decision making process between the vendor and front-line clinicians.

MERCY INTERNAL MEDICINE, ALBANY, NEW YORK Neighborhood three-physician internal medicine group practice. Primary Care Physician, 1999 – 2000 (6 months) Provided direct primary care to a panel of community patients during a period of staff shortage.

1999 – 2000

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ALBANY COUNTY CORRECTIONAL FACILITY, ALBANY, NEW YORK

1998 – 1999

Acting Facility Medical Director, 1998 – 1999

Directed the medical staff of an 800 bed jail and provided direct patient care following the sudden loss of the Medical Director, pending hiring of a permanent replacement. Coordinated care of jail patients in local hospitals. Provided consultation to the Superintendent on improvements to operation and staffing of medical unit and need for privatization.

VETERANS ADMINISTRATION MEDICAL CENTER, ALBANY, NY

1992 – 1998

Assistant Chief, Medical Service, 1995 – 1998 Chief, Section of General Internal Medicine and Emergency Services, 1992 – 1998
Responsible for operation of the general internal medicine clinics and the Emergency Department.
• Designed and implemented an organizational and physical plant makeover of the general medicine ambulatory care clinic from an episodic-care driven model with practitioners functioning independently supported by minimal nursing involvement, to a continuity-of-care model with integrated physician/mid-level practitioner/registered nurse/licensed practice nurse/practice manager teams.
• Led the design and opening of a new Emergency Department. • As the VA Section Chief of Albany Medical College’s Division of General Internal Medicine, coordinated academic
activities of the Division at the VA, including oversight of, and direct teaching in, ambulatory care and inpatient internal medicine rotations for medical students, residents, and fellows. Incorporated medical residents as part of the general internal medicine clinics. Awarded $786,000 Veterans Administration grant (“PRIME I”) over four years for development and operation of educational programs for medicine residents and students in allied health professions (management, pharmacy, social work, physician extenders) wishing to study primary care delivery.

ERIE COUNTY HEALTH DEPARTMENT, BUFFALO, NY

1988 – 1990

Director of Sexually Transmitted Diseases (STD) Services, 1989 – 1990 Staff Physician, STD Clinic, 1988 – 1989 Staff Physician, Lackawanna Community Health Center, 1988 – 1990
Provided leadership and patient care services in the evaluation and treatment of STDs. Successfully reorganized the county’s STD services which were suffering from mismanagement and were under public scrutiny. Provided direct patient care services in primary care clinic for underserved neighborhood.

UNION OCCUPATIONAL HEALTH CENTER, BUFFALO, NY Staff Physician, 1988 – 1990 Provided direct patient care for the evaluation of occupationally-related health disorders.

1988 – 1990

VETERANS ADMINISTRATION MEDICAL CENTER, BUFFALO, NY

1985 – 1990

Chief Outpatient Medical Section and Primary Care Clinic, 1986 – 1988 VA Section Head, Division of General Internal Medicine, University of Buffalo, 1986 – 1988
• Developed and implemented a major restructuring of the general medicine ambulatory care clinic to reduce fragmentation of care by introduction of a continuity-of-care model with a physician/nurse team approach.
Medical Director, Anticoagulation Clinic 1986 – 1990 Staff Physician, Emergency Department, 1985 – 1986

FACULTY APPOINTMENTS
2020 – present Faculty Associate, Center for Human Rights, University of Washington 2007 – present Affiliate Assistant Professor, Department of Health Services, School of Public Health, University of
Washington 1999 – present Clinical Professor, Fellowship in Applied Public Health (previously Volunteer Faculty, Preventive
Medicine Residency), University at Albany School of Public Health 1996 – 2002 Volunteer Faculty, Office of the Dean of Students, University at Albany

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1992 – 2002 1993 – 1997 1990 – 1992 1985 – 1990 1982 – 1985

Associate Clinical/Associate/Assistant Professor of Medicine, Albany Medical College Clinical Associate Faculty, Graduate Program in Nursing, Sage Graduate School Instructor of Medicine, Indiana University Clinical Assistant Professor of Medicine, University of Buffalo Clinical Assistant Instructor of Medicine, University of Buffalo

2016 – present 2016 – present 2016 – 2017 2013 – present 2013 – 2016
2013 – present 2011 – 2012 2007 – present 2004 – 2006
2004 2003 – present
2001 – present 1999 – present
1999
1997 – 1998 1996 – 2002 1996 – 2002 1995 – 1998 1995
1994 – 1998
1993 1993
1988 – 1989
1987 – 1990 1987 – 1989
1987 – 1988 1987 1986 – 1988 1986 – 1988
1979 – 1980

OTHER PROFESSIONAL ACTIVITIES
Chair, Education Committee, Academic Consortium on Criminal Justice Health Washington State Institutional Review Board (“Prisoner Advocate” member) Mortality Reduction Workgroup, American Jail Association Conference Planning Committee – Medical/Mental Health Track, American Jail Association “Health in Prisons” course, Bloomberg School of Public Health, Johns Hopkins University/International Committee of the Red Cross Institutional Review Board, University of Washington (“Prisoner Advocate” member), Education Committee, National Commission on Correctional Health Care National Advisory Committee, COCHS (Community–Oriented Correctional Health Services) Fellow’s Advisory Committee, University of Washington Robert Wood Johnson Clinical Scholar
Program External Expert Panel to the Surgeon General on the “Call to Action on Correctional Health Care” Faculty Instructor, Critical Appraisal of the Literature Course, Family Practice Residency Program,
Providence St. Peter Hospital, Olympia, Washington Chair/Co-Chair, Education Committee, American College of Correctional Physicians Critical Appraisal of the Literature Course, Preventive Medicine Residency Program, New York State
Department of Health/University at Albany School of Public Health Co–Chairperson, Education Subcommittee, Workshop Submission Review Committee, Annual
Meeting, Society of General Internal Medicine Northeast US Representative, National Association of VA Ambulatory Managers Faculty Mentor, Journal Club, Internal Medicine Residency Program, Albany Medical College Faculty Advisor and Medical Control, 5 Quad Volunteer Ambulance Service, University at Albany Preceptor, MBA Internship, Union College Quality Assurance/Patient Satisfaction Subcommittee, VA National Curriculum Development
Committee for Implementation of Primary Care Practices, Veterans Administration Residency Advisory Committee, Preventive Medicine Residency, New York State Department of
Health/School of Public Health, University at Albany Chairperson, Dean's Task Force on Primary Care, Albany Medical College Task Group to develop curriculum for Comprehensive Care Case Study Course for Years 1 through 4,
Albany Medical College Teaching Effectiveness Program for New Housestaff, Graduate Medical Dental Education Consortium
of Buffalo Human Studies Review Committee, School of Allied Health Professions, University of Buffalo Chairman, Subcommittee on Hospital Management Issues and Member, Subcommittee on
Teaching of Ad Hoc Committee to Plan Incoming Residents Training Week, Graduate Medical Dental Education Consortium of Buffalo Dean's Ad Hoc Committee to Reorganize "Introduction to Clinical Medicine" Course Preceptor, Nurse Practitioner Training Program, School of Nursing, University of Buffalo Course Coordinator, Simulation Models Section of Physical Diagnosis Course, University of Buffalo Chairman, Service Chiefs' Continuity of Care Task Force, Veterans Administration Medical Center, Buffalo, New York Laboratory Teaching Assistant in Gross Anatomy, Université Libre de Bruxelles, Brussels, Belgium

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1973 – 1975 1972 – 1975
1972 – 1975

Instructor and Instructor Trainer of First Aid, American National Red Cross
Chief of Service or Assistant Chief of Operations, 5 Quad Volunteer Ambulance Service, University at Albany.
Emergency Medical Technician Instructor and Course Coordinator, New York State Department of Health, Bureau of Emergency Medical Services

2019 – present 2015 – present 2015 – present
2011 – present 2010 – present 2010 – present 2001 – present 2001 – 2004 1996
1990 – 1992

REVIEWER/EDITOR Criminal Justice Review (reviewer) PLOS ONE (reviewer) Founding Editorial Board Member and Reviewer, Journal for Evidence-based Practice in Correctional Health, Center for Correctional Health Networks, University of Connecticut American Journal of Public Health (reviewer) International Advisory Board Member and Reviewer, International Journal of Prison Health Langeloth Foundation (grant reviewer) Reviewer and Editorial Board Member (2009 – present), Journal of Correctional Health Care Journal of General Internal Medicine (reviewer) Abstract Committee, Health Services Research Subcommittee, Annual Meeting, Society of General Internal Medicine (reviewer) Medical Care (reviewer)

EDUCATION
University at Albany, College of Arts and Sciences, Albany; B.S., 1975 (Biology) University at Albany, School of Education, Albany; AMST (Albany Math and Science Teachers) Teacher Education
Program, 1975 Université Libre de Bruxelles, Faculté de Medecine, Brussels, Belgium; Candidature en Sciences Medicales, 1980 University at Buffalo, School of Medicine, Buffalo; M.D., 1982 University at Buffalo Affiliated Hospitals, Buffalo; Residency in Internal Medicine, 1985 Regenstrief Institute of Indiana University, and Richard L. Roudebush Veterans Administration Medical Center; VA/NIH
Fellowship in Primary Care Medicine and Health Services Research, 1992 Indiana University, School of Health, Physical Education, and Recreation, Bloomington; M.P.H., 1992 New York Academy of Medicine, New York; Mini-fellowship Teaching Evidence-Based Medicine, 1999

CERTIFICATION
Provisional Teaching Certification for Biology, Chemistry, Physics, Grades 7–12, New York State Department of Education (expired), 1975
Diplomate, National Board of Medical Examiners, 1983 Diplomate, American Board of Internal Medicine, 1985 Fellow, American College of Physicians, 1991 License: Washington (#MD00041843, active); New York (#158327, inactive); Indiana (#01038490, inactive) “X” Waiver (buprenorphine), Department of Health & Human Services, 2018

2019 – present 2005 – 2016 2004 – 2006
2000 – present

MEMBERSHIPS Washington Association of Sheriffs and Police Chiefs American Correctional Association/Washington Correctional Association American College of Correctional Physicians (Member, Board of Directors, Chair Education Committee) American College of Correctional Physicians

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RECOGNITION B. Jaye Anno Award for Excellence in Communication, National Commission on Correctional Health Care. 2019 Award of Appreciation, Washington Association of Sheriffs and Police Chiefs. 2018 Armond Start Award of Excellence, American College of Correctional Physicians. 2010 (First) Annual Preventive Medicine Faculty Excellence Award, New York State Preventive Medicine Residency Program, University at Albany School of Public Health/New York State Department of Health. 2010 Excellence in Education Award for excellence in clinical teaching, Family Practice Residency Program, Providence St. Peter Hospital, Olympia, Washington. 2004 Special Recognition for High Quality Workshop Presentation at Annual Meeting, Society of General Internal Medicine. 1996 Letter of Commendation, House Staff Teaching, University of Buffalo. 1986

WORKSHOPS, SEMINARS, PRESENTATIONS, INVITED LECTURES
It’s the 21st Century – Time to Bid Farewell to “Sick Call” and “Chronic Care Clinic”. Annual Conference, National Commission on Correctional Health Care. Fort Lauderdale, Florida. 2019
HIV and Ethics – Navigating Medical Ethical Dilemmas in Corrections. Keynote Speech, 14th Annual HIV Care in the Correctional Setting. AIDS Education and Training Program (AETC) Mountain West, Olympia, Washington. 2019
Honing Nursing Skills to Keep Patients Safe in Jail. Orange County Jail Special Training Session (including San Bernardino and San Diego Jail Staffs), Theo Lacy Jail, Orange, California. 2019
What Would You Do? Navigating Medical Ethical Dilemmas. Leadership Training Academy, National Commission on Correctional Health Care. San Diego, California. 2019
Preventing Jail Deaths. Jail Death Review and Investigations: Best Practices Training Program, American Jail Association, Arlington, Virginia. 2018
How to Investigate Jail Deaths. Jail Death Review and Investigations: Best Practices Training Program, American Jail Association, Arlington, Virginia. 2018
Executive Manager Program in Correctional Health. 4-day training for custody/health care teams from jails and prisons on designing safe and efficient health care systems. National Institute for Corrections Training Facility, Aurora, Colorado, and other venues in Washington State. Periodically. 2014 – present
Medical Ethics in Corrections. Criminal Justice 441 – Professionalism and Ethical Issues in Criminal Justice. University of Washington, Tacoma. Recurring seminar. 2012 – present
Medical Aspects of Deaths in ICE Custody. Briefing for U.S. Senate staffers, Human Rights Watch. Washington, D.C. 2018
Jails’ Role in Managing the Opioid Epidemic. Panelist. Washington Association of Sheriffs and Police Chiefs Annual Conference. Spokane, Washington. 2018
Contract Prisons and Contract Health Care: What Do We Know? Behind Bars: Ethics and Human Rights in U.S. Prisons Conference. Center for Bioethics – Harvard Medical School/Human Rights Program – Harvard Law School. Boston, Massachusetts. 2017
Health Care Workers in Prisons. (With Dr. J. Wesley Boyd) Behind Bars: Ethics and Human Rights in U.S. Prisons Conference. Center for Bioethics – Harvard Medical School/Human Rights Program – Harvard Law School. Boston, Massachusetts. 2017
Prisons, Jails and Medical Ethics: Rubber, Meet Road. Grand Rounds. Touro Medical College. New York, New York. 2017
Jail Medical Doesn’t Have to Keep You Up at Night – National Standards, Risks, and Remedies. Washington Association of Counties. SeaTac, Washington. 2017
Prison and Jail Health Care: What do you need to know? Grand Rounds. Providence/St. Peters Medical Center. Olympia, Washington. 2017
Prison Health Leadership Conference. 2-Day workshop. International Corrections and Prisons Association/African Correctional Services Association/Namibian Corrections Service. Omaruru, Namibia. 2016; 2018

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What Would YOU Do? Navigating Medical Ethical Dilemmas. Spring Conference. National Commission on Correctional Health Care. Nashville, Tennessee. 2016
Improving Patient Safety. Spring Provider Meeting. Oregon Department of Corrections. Salem, Oregon 2016
A View from the Inside: The Challenges and Opportunities Conducting Cardiovascular Research in Jails and Prisons. Workshop on Cardiovascular Diseases in the Inmate and Released Prison Population. The National Heart, Lung, and Blood Institute. Bethesda, Maryland. 2016
Why it Matters: Advocacy and Policies to Support Health Communities after Incarceration. At the Nexus of Correctional Health and Public Health: Policies and Practice session. Panelist. American Public Health Association Annual Meeting. Chicago, Illinois. 2015
Hot Topics in Correctional Health Care. Presented with Dr. Donald Kern. American Jail Association Annual Meeting. Charlotte, North Carolina. 2015
Turning Sick Call Upside Down. Annual Conference. National Commission on Correctional Health Care. Dallas, Texas, 2015.
Diagnostic Maneuvers You May Have Missed in Nursing School. Annual Conference. National Commission on Correctional Health Care. Dallas, Texas. 2015
The Challenges of Hunger Strikes: What Should We Do? What Shouldn’t We Do? Annual Conference. National Commission on Correctional Health Care. Dallas, Texas. 2015
Practical and Ethical Approaches to Managing Hunger Strikes. Annual Practitioners’ Conference. Washington Department of Corrections. Tacoma, Washington. 2015
Contracting for Health Services: Should I, and if so, how? American Jail Association Annual Meeting. Dallas, Texas. 2014
Hunger Strikes: What should the Society of Correctional Physician’s position be? With Allen S, May J, Ritter S. American College of Correctional Physicians (Formerly Society of Correctional Physicians) Annual Meeting. Nashville, Tennessee. 2013
Addressing Conflict between Medical and Security: an Ethics Perspective. International Corrections and Prison Association Annual Meeting. Colorado Springs, Colorado. 2013
Patient Safety and ‘Right Using’ Nurses. Keynote address. Annual Conference. American Correctional Health Services Association. Philadelphia, Pennsylvania. 2013
Patient Safety: Overuse, underuse, and misuse…of nurses. Keynote address. Essentials of Correctional Health Care conference. Salt Lake City, Utah. 2012
The ethics of providing healthcare to prisoners-An International Perspective. Global Health Seminar Series. Department of Global Health, University of Washington, Seattle, Washington. 2012
Recovery, Not Recidivism: Strategies for Helping People Who are Incarcerated. Panelist. NAMI Annual Meeting, Seattle, Washington, 2012
Ethics and HIV Workshop. HIV/AIDS Care in the Correctional Setting Conference, Northwest AIDS Education and Training Center. Salem, Oregon. 2011
Ethics and HIV Workshop. HIV/AIDS Care in the Correctional Setting Conference, Northwest AIDS Education and Training Center. Spokane, Washington. 2011
Patient Safety: Raising the Bar in Correctional Health Care. With Dr. Sharen Barboza. National Commission on Correctional Health Care Mid-Year Meeting, Nashville, Tennessee. 2010
Patient Safety: Raising the Bar in Correctional Health Care. American Correctional Health Services Association, Annual Meeting, Portland, Oregon. 2010
Achieving Quality Care in a Tough Economy. National Commission on Correctional Health Care Mid-Year Meeting, Nashville, Tennessee, 2010 (Co-presented with Rick Morse and Helena Kim, PharmD.)
Involuntary Psychotropic Administration: The Harper Solution. With Dr. Bruce Gage. American Correctional Health Services Association, Annual Meeting, Portland, Oregon. 2010
Evidence Based Decision Making for Non-Clinical Correctional Administrators. American Correctional Association 139th Congress, Nashville, Tennessee. 2009
Death Penalty Debate. Panelist. Seattle University School of Law, Seattle, Washington. 2009

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The Patient Handoff – From Custody to the Community. Washington Free Clinic Association, Annual Meeting, Olympia, Washington. Lacey, Washington. 2009
Balancing Patient Advocacy with Fiscal Restraint and Patient Litigation. National Commission on Correctional Health Care and American College of Correctional Physicians “Medical Directors Boot Camp,” Seattle, Washington. 2009
Staff Management. National Commission on Correctional Health Care and American College of Correctional Physicians “Medical Directors Boot Camp,” Seattle, Washington. 2009
Management Dilemmas in Corrections: Boots and Bottom Bunks. Annual Meeting, American College of Correctional Physicians, Chicago, Illinois. 2008
Public Health and Correctional Health Care. Masters Program in community–based population focused management – Populations at risk, Washington State University, Spokane, Washington. 2008
Managing the Geriatric Population. Panelist. State Medical Directors’ Meeting, American Corrections Association, Alexandria, Virginia. 2007
I Want to do my own Skin Biopsies. Annual Meeting, American College of Correctional Physicians, New Orleans, Louisiana. 2005
Corrections Quick Topics. Annual Meeting, American College of Correctional Physicians. Austin, Texas. 2003
Evidence Based Medicine in Correctional Health Care. Annual Meeting, National Commission on Correctional Health Care. Austin, Texas. 2003
Evidence Based Medicine. Excellence at Work Conference, Empire State Advantage. Albany, New York. 2002
Evidence Based Medicine, Outcomes Research, and Health Care Organizations. National Clinical Advisory Group, Integrail, Inc., Albany, New York. 2002
Evidence Based Medicine. With Dr. LK Hohmann. The Empire State Advantage, Annual Excellence at Work Conference: Leading and Managing for Organizational Excellence, Albany, New York. 2002
Taking the Mystery out of Evidence Based Medicine: Providing Useful Answers for Clinicians and Patients. Breakfast Series, Institute for the Advancement of Health Care Management, School of Business, University at Albany, Albany, New York. 2001
Diagnosis and Management of Male Erectile Dysfunction – A Goal–Oriented Approach. Society of General Internal Medicine National Meeting, San Francisco, California. 1999
Study Design and Critical Appraisal of the Literature. Graduate Medical Education Lecture Series for all housestaff, Albany Medical College, Albany, New York. 1999 Male Impotence: Its Diagnosis and Treatment in the Era of Sildenafil. 4th Annual CME Day, Alumni Association of the Albany–Hudson Valley Physician Assistant Program, Albany, New York. 1998
Models For Measuring Physician Productivity. Panelist. National Association of VA Ambulatory Managers National Meeting, Memphis, Tennessee. 1997
Introduction to Male Erectile Dysfunction and the Role of Sildenafil in Treatment. Northeast Regional Meeting Pfizer Sales Representatives, Manchester Center, Vermont. 1997
Male Erectile Dysfunction. Topics in Urology, A Seminar for Primary Healthcare Providers, Bassett Healthcare, Cooperstown, New York. 1997
Evaluation and Treatment of the Patient with Impotence: A Practical Primer for General Internists. Society of General Internal Medicine National Meeting, Washington D.C. 1996
Impotence: An Update. Department of Medicine Grand Rounds, Albany Medical College, Albany, New York. 1996
Diabetes for the EMT First–Responder. Five Quad Volunteer Ambulance, University at Albany. Albany, New York. 1996
Impotence: An Approach for Internists. Medicine Grand Rounds, St. Mary's Hospital, Rochester, New York. 1994
Male Impotence. Common Problems in Primary Care Precourse. American College of Physicians National Meeting, Miami, Florida. 1994
Patient Motivation: A Key to Success. Tuberculosis and HIV: A Time for Teamwork. AIDS Program, Bureau of Tuberculosis Control – New York State Department of Health and Albany Medical College, Albany, New York. 1994

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Recognizing and Treating Impotence. Department of Medicine Grand Rounds, Albany Medical College, Albany, New York. 1992
Medical Decision Making: A Primer on Decision Analysis. Faculty Research Seminar, Department of Family Practice, Indiana University, Indianapolis, Indiana. 1992
Effective Presentation of Public Health Data. Bureau of Communicable Diseases, Indiana State Board of Health, Indianapolis, Indiana. 1991
Impotence: An Approach for Internists. Housestaff Conference, Department of Medicine, Indiana University, Indianapolis, Indiana. 1991
Using Electronic Databases to Search the Medical Literature. NIH/VA Fellows Program, Indiana University, Indianapolis, Indiana. 1991
Study Designs Used in Epidemiology. Ambulatory Care Block Rotation. Department of Medicine, Indiana University, Indianapolis, Indiana. 1991
Effective Use of Slides in a Short Scientific Presentation. Housestaff Conference, Department of Medicine, Indiana University, Indianapolis, Indiana. 1991
Impotence: A Rational and Practical Approach to Diagnosis and Treatment for the General Internist. Society of General Internal Medicine National Meeting, Washington D.C. 1991
Nirvana and Audio–Visual Aids. With Dr. RM Lubitz. Society of General Internal Medicine, Midwest Regional Meeting, Chicago. 1991
New Perspectives in the Management of Hypercholesterolemia. Medical Staff, West Seneca Developmental Center, West Seneca, New York. 1989
Effective Use of Audio–Visual Aids. Nurse Educators, American Diabetes Association, Western New York Chapter, Buffalo, New York. 1989
Management of Diabetics in the Custodial Care Setting. Medical Staff, West Seneca Developmental Center, West Seneca, New York, 1989
Effective Use of Audio–Visuals in Diabetes Peer and Patient Education. American Association of Diabetic Educators, Western New York Chapter, Buffalo, New York. 1989
Pathophysiology, Diagnosis and Care of Diabetes. Nurse Practitioner Training Program, School of Nursing, University of Buffalo, Buffalo, New York. 1989
Techniques of Large Group Presentations to Medical Audiences – Use of Audio–Visuals. New Housestaff Training Program, Graduate Medical Dental Education Consortium of Buffalo, Buffalo, New York. 1988

PUBLICATIONS/ABSTRACTS
Borschmann, R, Tibble, H, Spittal, MJ, … Stern, MF, Viner, KM, Wang, N, Willoughby, M, Zhao, B, and Kinner, SA. The Mortality After Release from Incarceration Consortium (MARIC): Protocolfor a multi-national, individual participant data meta-analysis. Int. J of Population Data Science 2019 5(1):6
Binswanger IA, Maruschak LM, Mueller SR, Stern MF, Kinner SA. Principles to Guide National Data Collection on the Health of Persons in the Criminal Justice System. Public Health Reports 2019 134(1):34S-45S
Stern M. Hunger Strike: The Inside Medicine Scoop. American Jails 2018 32(4):17-21
Grande L, Stern M. Providing Medication to Treat Opioid Use Disorder in Washington State Jails. Study conducted for Washington State Department of Social and Health Services under Contract 1731-18409. 2018.
Stern MF, Newlin N. Epicenter of the Epidemic: Opioids and Jails. American Jails 2018 32(2):16-18
Stern MF. A nurse is a nurse is a nurse…NOT! Guest Editorial, American Jails 2018 32(2):4,68
Wang EA, Redmond N, Dennison Himmelfarb CR, Pettit B, Stern M, Chen J, Shero S, Iturriaga E, Sorlie P, Diez Roux AV. Cardiovascular Disease in Incarcerated Populations. Journal of the American College of Cardiology 2017 69(24):2967-76
Mitchell A, Reichberg T, Randall J, Aziz-Bose R, Ferguson W, Stern M. Criminal Justice Health Digital Curriculum. Poster, Annual Academic and Health Policy Conference on Correctional Health, Atlanta, Georgia, March, 2017

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Stern MF. Patient Safety (White Paper). Guidelines, Management Tools, White Papers, National Commission on Correctional Health Care. http://www.ncchc.org/filebin/Resources/Patient-Safety-2016.pdf. June, 2016
Binswanger IA, Stern MF, Yamashita TE, Mueller SR, Baggett TP, Blatchford PJ. Clinical risk factors for death after release from prison in Washington State: a nested case control study. Addiction 2015 Oct 17
Stern MF. Op-Ed on Lethal Injections. The Guardian 2014 Aug 6
Stern MF. American College of Correctional Physicians Calls for Caution Placing Mentally Ill in Segregation: An Important Band-Aid. Guest Editorial. Journal of Correctional Health Care 2014 Apr; 20(2):92-94
Binswanger I, Blatchford PJ, Mueller SR, Stern MF. Mortality After Prison Release: Opioid Overdose and Other Causes of Death, Risk Factors, and Time Trends From 1999 to 2009. Annals of Internal Medicine 2013 Nov; 159(9):592-600
Williams B, Stern MF, Mellow J, Safer M, Greifinger RB. Aging in Correctional Custody: Setting a policy agenda for older prisoner health care. American Journal of Public Health 2012 Aug; 102(8):1475-1481
Binswanger I, Blatchford PJ, Yamashita TE, Stern MF. Drug-Related Risk Factors for Death after Release from Prison: A Nested Case Control Study. Oral Presentation, University of Massachusetts 4th Annual Academic and Health Policy Conference on Correctional Healthcare, Boston, Massachusetts, March, 2011
Binswanger I, Blatchford PJ, Forsyth S, Stern MF, Kinner SA. Death Related to Infectious Disease in Ex-Prisoners: An International Comparative Study. Oral Presentation, University of Massachusetts 4th Annual Academic and Health Policy Conference on Correctional Healthcare, Boston, Massachusetts, March, 2011
Binswanger I, Lindsay R, Stern MF, Blatchford P. Risk Factors for All-Cause, Overdose and Early Deaths after Release from Prison in Washington State Drug and Alcohol Dependence. Drug and Alcohol Dependence Aug 1 2011;117(1):1-6
Stern MF, Greifinger RB, Mellow J. Patient Safety: Moving the Bar in Prison Health Care Standards. American Journal of Public Health November 2010;100(11):2103-2110
Strick LB, Saucerman G, Schlatter C, Newsom L, Stern MF. Implementation of Opt-Out HIV testing in the Washington State Department of Corrections. Poster Presentation, National Commission on Correctional Health Care Annual Meeting, Orlando, Florida, October, 2009
Binswanger IA, Blatchford P, Stern MF. Risk Factors for Death After Release from Prison. Society for General Internal Medicine 32nd Annual Meeting; Miami: Journal of General Internal Medicine; April 2009. p. S164-S95
Stern MF. Force Feeding for Hunger Strikes – One More Step. CorrDocs Winter 2009;12(1):2
Binswanger I, Stern MF, Deyo RA, Heagerty PJ, Cheadle A, Elmore JG, Koepsell TD. Release from Prison – A High Risk of Death for Former Inmates. New England Journal of Medicine 2007 Jan 11;356(2):157–165
Stern MF, Hilliard T, Kelm C, Anderson E. Epidemiology of Hepatitis C Infection in the Washington State Department of Corrections. Poster Presentation, CDC/NIH ad hoc Conference on Management of Hepatitis C in Prisons, San Antonio, Texas, January, 2003
Phelps KR, Stern M, Slingerland A, Heravi M, Strogatz DS, Haqqie SS. Metabolic and skeletal effects of low and high doses of calcium acetate in patients with preterminal chronic renal failure. Am J Nephrol 2002 Sep–Dec;22(5–6):445–54
Goldberg L, Stern MF, Posner DS. Comparative Epidemiology of Erectile Dysfunction in Gay Men. Oral Presentation, International Society for Impotence Research Meeting, Amsterdam, The Netherlands, August 1998. Int J Impot Res. 1998;10(S3):S41 [also presented as oral abstract Annual Meeting, Society for the Study of Impotence, Boston, Massachusetts, October, 1999. Int J Impot Res. 1999;10(S1):S65]
Stern MF. Erectile Dysfunction in Older Men. Topics in Geriatric Rehab 12(4):40–52, 1997. [republished in Geriatric Patient Education Resource Manual, Supplement. Aspen Reference Group, Eds. Aspen Publishers, Inc., 1998]
Stern MF, Wulfert E, Barada J, Mulchahy JJ, Korenman SG. An Outcomes–Oriented Approach to the Primary Care Evaluation and Management of Erectile Dysfunction. J Clin Outcomes Management 5(2):36–56, 1998
Fihn SD, Callahan CM, Martin D, et al.; for the National Consortium of Anticoagulation Clinics.* The Risk for and Severity of Bleeding Complications in Elderly Patients Treated with Warfarin. Ann Int Med. 1996;124:970–979
Fihn SD, McDonell M, Martin D, et al.; for the Warfarin Optimized Outpatient Follow–up Study Group.* Risk Factors for Complications of Chronic Anticoagulation. Ann Int Med. 1993;118:511–520. (*While involved in the original proposal development and project execution, I was no longer part of the group at the time of this publication)
Stern MF, Dittus RS, Birkhead G, Huber R, Schwartz J, Morse D. Cost–Effectiveness of Hepatitis B Immunization Strategies for High Risk People. Oral Presentation, Society of General Internal Medicine National Meeting, Washington, D.C., May 1992. Clin Res 1992

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Fihn SD, McDonell MB, Vermes D, Martin D, Kent DL, Henikoff JG, and the Warfarin Outpatient Follow–up Study Group. Optimal Scheduling of Patients Taking Warfarin. A Multicenter Randomized Trial. Oral Presentation, Society of General Internal Medicine National Meeting, Washington, D.C., May 1992. Clin Res 1992
Fihn SD, McDonnell MB, Vermes D, Kent DL, Henikoff JG, and the Warfarin Anticoagulation Study Group. Risk Factors for Complications During Chronic Anticoagulation. Poster Presentation, Society of General Internal Medicine National Meeting, Seattle, May 1991
Pristach CA, Donoghue GD, Sarkin R, Wargula C, Doerr R, Opila D, Stern M, Single G. A Multidisciplinary Program to Improve the Teaching Skills of Incoming Housestaff. Acad Med. 1991;66(3):172–174
Stern MF. Diagnosing Chlamydia trachomatis and Neisseria gonorrhea Infections. (letter) J Gen Intern Med. 1991;6:183
Stern MF, Fitzgerald JF, Dittus RS, Tierney WM, Overhage JM. Office Visits and Outcomes of Care: Does Frequency Matter? Poster Presentation, Society of General Internal Medicine Annual Meeting, Seattle, May 1991. Clin Res 1991;39:610A
Stern MF. Cobalamin Deficiency and Red Blood Cell Volume Distribution Width. (letter) Arch Intern Med. 1990;150:910
Stern M, Steinbach B. Hypodermic Needle Embolization to the Heart. NY State J Med. 1990;90(7):368–371
Stern MF, Birkhead G, Huber R, Schwartz J, Morse D. Feasibility of Hepatitis B Immunization in an STD Clinic. Oral Presentation, American Public Health Association Annual Meeting, Atlanta, November 1990

EXPERT TESTIMONY Pajas v. County of Monterey, et al. US District Court for the Northern District of California, 2019 (trial) Dockery, et al. v. Hall et al. US District Court for the Southern District of Mississippi Northern Division, 2018 (trial) Benton v. Correct Care Solutions, et al. US District Court for the District of Maryland, 2018 (deposition) Pajas v. County of Monterey, et al. US District Court Northern District of California, 2018 (deposition) Walter v. Correctional Healthcare Companies, et al. US District Court, District of Colorado, 2017 (deposition) Winkler v. Madison County, Kentucky, et al. US District Court, Eastern District of Kentucky, Central Division at Lexington, 2016 (deposition) US v. Miami-Dade County, et al. US District Court, Southern District of Florida, periodically 2014 - 2016

Case 1:19-cv-03185-RDM Document 39-4 Filed 04/18/20 Page 1 of 4
DECLARATION OF DR. JONATHAN LOUIS GOLOB
I. Jonathan Louis Golob, declare as follows:
1. I am an Assistant Professor at the University of Michigan School of Medicine in Ann Arbor, Michigan, where I am a specialist in infectious diseases and internal medicine. I am also a member of the Physicians for Human Rights. At the University of Michigan School of Medicine, I am a practicing physician and a laboratory-based scientist. My primary subspecialization is for infections in immunocompromised patients, and my recent scientific publications focus on how microbes affect immunocompromised people. I obtained my medical degree and completed my residency at the University of Washington School of Medicine in Seattle, Washington, and also completed a Fellowship in Internal Medicine Infectious Disease at the University of Washington. I am actively involved in the planning and care for patients with COVID-19. Attached as Exhibit A is a copy of my curriculum vitae.
2. COVID-19 is an infection caused by a novel zoonotic coronavirus SARS-COV-2 that has been identified as the cause of a viral outbreak that originated in Wuhan, China in December 2019. The World Health Organization has declared that COVID-19 is causing a pandemic. As of April 2, 2020, there are over 800,000 confirmed cases of COVID-19 worldwide. COVID-19 has caused over 45,000 deaths, with exponentially growing outbreaks occurring at multiple sites worldwide, including within the United States in regions like New York, New Jersey, Louisiana, Michigan and Illinois.
3. COVID-19 makes certain populations of people severely ill. People over the age of fifty are at higher risk, with those over 70 at serious risk. As the Center for Disease Control and Prevention has advised, certain medical conditions increase the risk of serious COVID-19 for people of any age. These medical conditions include: those with lung disease, heart disease, diabetes, or immunocompromised (such as from cancer, HIV, autoimmune diseases), blood disorders (including sickle cell disease), chronic liver or kidney disease, inherited metabolic disorders, stroke, developmental delay, or pregnancy.
4. For all people, even in advanced countries with very effective health care systems such as the Republic of Korea, the case fatality rate of this infection is about ten fold higher than that observed from a severe seasonal influenza. In the more vulnerable groups, both the need for care, including intensive care, and death is much higher than we observe from influenza infection: In the highest risk populations, the case fatality rate is about 15%. For high risk patients who do not die from COVID-19, a prolonged recovery is expected to be required, including the need for extensive rehabilitation for profound
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deconditioning, loss of digits, neurologic damage, and loss of respiratory capacity that can be expected from such a severe illness.
5. In most people, the virus causes fever, cough, and shortness of breath. In high-risk individuals as noted above, this shortness of breath can often be severe. Even in younger and healthier people, infection of this virus requires supportive care, which includes supplemental oxygen, positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation.
6. The incubation period (between infection and the development of symptoms) for COVID-19 is typically 5 days, but can vary from as short as two days to an infected individual never developing symptoms. There is evidence that transmission can occur before the development of infection and from infected individuals who never develop symptoms. Thus, only with aggressive testing for SARS-COV-2 can a lack of positive tests establish a lack of risk for COVID-19.
7. When a community or institution lacks a comprehensive and rigorous testing regime, a lack of proven cases of COVID-19 is functionally meaningless for determining if there is a risk for COVID-19 transmission in a community or institution.
8. Most people in the higher risk categories will require more advanced support: positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation. Such care requires highly specialized equipment in limited supply as well as an entire team of care providers, including but not limited to 1:1 or 1:2 nurse to patient ratios, respiratory therapists and intensive care physicians. This level of support can quickly exceed local health care resources.
9. COVID-19 can severely damage the lung tissue, requiring an extensive period of rehabilitation and in some cases a permanent loss of respiratory capacity. The virus also seems to target the heart muscle itself, causing a medical condition called mycocarditis, or inflammation of the heart muscle. Myocarditis can affect the heart muscle and electrical system, which reduces the heart's ability to pump, leading to rapid or abnormal heart rhythms in the short term, and heart failure that limits exercise tolerance and the ability to work lifelong. There is emerging evidence that the virus can trigger an over-response by the immune system in infected people, further damaging tissues. This cytokine release syndrome can result in widespread damage to other organs, including permanent injury to the kidneys (leading to dialysis dependence) and neurologic injury.
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Case 1:19-cv-03185-RDM Document 39-4 Filed 04/18/20 Page 3 of 4
10. There is no cure and vaccine for this infection. Unlike influenza, there is no known effective antiviral medication to prevent or treat infection from COVID-19. Experimental therapies are being attempted. The only known effective measures to reduce the risk for a vulnerable person from injury or death from COVID-19 are to prevent individuals from being infected with the COVID-19 virus. Social distancing, or remaining physically separated from known or potentially infected individuals, and hygiene, including washing with soap and water, are the only known effective measures for protecting vulnerable communities from COVID-19.
11. Nationally, without effective public health interventions, CDC projections indicate about 200 million people in the United States could be infected over the course of the epidemic, with as many as 1.5 million deaths in the most severe projections. Effective public health measures, including social distancing and hygiene for vulnerable populations, could reduce these numbers.
12. In early March, the highest known person-to-person transmission rates for COVID-19 were in a skilled nursing facility in Kirkland, Washington and on afflicted cruise ships in Japan and off the coast of California. More recently, the highest transmission rates have been recorded in the Rikers Island jail complex in New York City, which is over seven times the rate of transmission compared to the spread in New York City. To illustrate, the number of confirmed cases among inmates soared from one to nearly 200 in the matter of 12 days.
13. This is consistent with the spread of previous viruses in congregate settings. During the H1N1 influenza ("Swine Flu") epidemic in 2009, jails and prisons were sites of severe outbreaks of viral infection. Given the avid spread of COVID-19 in skilled nursing facilities and cruise ships, it is reasonable to expect COVID-19 will also readily spread in detention centers such as prisons and jails, particularly when residents cannot engage in social distancing measures, cannot practice proper hygiene, and cannot isolate themselves from infected residents or staff. With new individuals and staff coming into the detention centers who may be asymptomatic or not yet presenting symptoms, the risk of infection rises even with symptom screening measures.
14. This information provides many reasons to conclude that vulnerable people, people over the age of 50 and people of any age with lung disease, heart disease, diabetes, or immunocompromised (such as from cancer, HIV, autoimmune diseases), blood disorders (including sickle cell disease), chronic liver or kidney disease, inherited metabolic disorders, stroke, developmental delay, or pregnancy living in an institutional setting, such as a prison, or jail, or an immigration detention center, with limited access to
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Case 1:19-cv-03185-RDM Document 39-4 Filed 04/18/20 Page 4 of 4 adequate hygiene facilities, limited ability to physically distance themselves from others, and exposure to potentially infected individuals from the community are at grave risk of severe illness and death from COVID-19. Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 3 day in April, 2020 in Ann Arbor, Michigan. Dr. Jonathan Louis Golob
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Case 1:19-cv-03185-RDM Document 39-5 Filed 04/18/20 Page 1 of 2
DECLARATION OF HADLEY TRUETTNER STAFF ATTORNEY AT THE PUBLIC DEFENDER SERVICE
I, Hadley Truettner, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.
1. My name is Hadley Truettner. I make these statements based upon my personal knowledge.
2. I am a staff attorney in the Mental Health Division at the Public Defender Service for the District of Columbia (hereinafter “PDS”) and have served in this role since January of 1995. PDS is a federally funded, independent organization dedicated to representing indigent adults and children facing the loss of liberty in the District of Columbia. My principal responsibilities as a staff attorney at PDS are to represent both persons facing civil commitment and persons committed to the Department of Behavioral Health as a result of a not guilty by reason of insanity finding.
3. In the course of my work, I regularly speak to clients who are admitted to locked psychiatric wards in area hospitals, including Psychiatric Institute of Washington, United Medical Center, Washington Hospital Center and the Veteran’s Affairs Medical Center and Saint Elizabeths Hospital (hereinafter “SEH”), their family members, their guardians, and their treating doctors and treatment teams. Through those conversations, I learned the following:
During an April 9, 2020 email correspondence with a social worker in an area hospital, I learned my client’s treatment plan is to be transferred to Saint Elizabeths Hospital for long term care. Surprised that Saint Elizabeths would be accepting clients given the COVID-19 outbreak at the hospital, I inquired whether Saint Elizabeths is really accepting new patients. The social worker responded, “They are accepting patients.”
4. In a follow up email to Dr. Philip Candilis, Director of Medical Affairs at Saint Elizabeths Hospital on the morning of Friday, April 10. I explained that I have a client in an area hospital whom that hospital intends to transfer to Saint Es. I inquired as follows:
“The social worker [from the area hospital] indicated that Saint Es is accepting patients. Can you confirm? Thanks very much.”
Dr. Candilis responded later that morning: “Yes, confirmed.”
5. On April 13, 2020, I had a conversation with a different social worker at the same area hospital regarding another client’s long-term plan. The social worker indicated that my client will be transferred to Saint Elizabeths. I wrote the following question:
“Is Saint Es currently taking folks?”
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Case 1:19-cv-03185-RDM Document 39-5 Filed 04/18/20 Page 2 of 2 The social worker responded, “Yes its [Saint Elizabeths] moving slowly but they are currently accepting.”
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief. Executed on the 16th day of April 2020 in Washington, D.C.
Hadley Truettner
______________________________ Hadley Truettner Staff Attorney Public Defender Service, MHD 633 Indiana Avenue Ave, NW Washington DC 20004
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Case 1:19-cv-03185-RDM Document 39-9 Filed 04/18/20 Page 1 of 3
DECLARATION OF ASHLEY GUZMAN STAFF ATTORNEY AT THE PUBLIC DEFENDER SERVICE I, Ashley Guzman, certify under penalty of perjury that the following statement is true and current pursuant to 28 U.S.C § 1746.
1. My name is Ashley Guzman. I make these statements based upon my personal knowledge.
2. I am a staff attorney in the Mental Health Division at the Public Defender Service for the District of Columbia and have served in this role since April 2015. PDS is a federally funded, independent organization dedicated to representing indigent adults and children facing the loss of liberty in the District of Columbia. My principal responsibilities as a staff attorney at PDS are to represent both persons facing civil commitment and persons committed to the Department of Behavioral Health as a result of a not guilty by reason of insanity finding, and to consult with attorneys in various other divisions of PDS as a mental health litigation specialist.
3. In the course of my work, I regularly speak to clients who are committed to Saint Elizabeths Hospital (hereinafter “Hospital”). Specifically on April 15, 2020, I spoke with clients at the Hospital and through those conversations, I learned the following:
a. I learned about conditions on Unit 2TR of the Hospital. I learned that Unit 2TR was originally designated as the Hospital’s quarantine unit. All patients on the unit tested positive for COVID-19. There are only seven patient beds on the unit. However, once COVID-19 spread throughout nearly all of the other units in the Hospital, at least one COVID-19 positive and symptomatic patient was transferred to another unit in the Hospital. The receiving unit houses patients who have not tested positive for COVID-19. Regarding the conditions of Unit 2TR, I learned that all patients were provided with masks, but no other personal protective equipment. Patients were given new masks every day. All staff wore masks and full protective suits. Bottles of hand sanitizer were provided to patients. The patients were housed in their own rooms with their own bathrooms. The bathrooms were stocked with hand soap. Staff did the patients’ laundry once per week. The common areas of Unit 2TR were sanitized daily, but the patients’ bedrooms and bathrooms were not. Patients had to request to have their bedrooms and bathrooms sanitized. Patients were not provided with any cleaning materials to clean their own bedrooms and bathrooms. Staff in full personal protective gear delivered all meals and medications to the patients’ individual bedrooms. During the day, patients were restricted to their rooms, but were allowed to go to Unit 2TR’s balcony once per day for up to thirty minutes. Staff permitted only one patient on the balcony at a time.
b. I learned about the conditions on Unit 2B of the Hospital. I learned that there are about 27 patients on the unit. Some of the patients on Unit 2B have tested positive for COVID-19, but not all. Not all of the patients have masks to wear. As of April 15, 2020, there were at least four patients without masks on the unit

Case 1:19-cv-03185-RDM Document 39-9 Filed 04/18/20 Page 2 of 3
due to a mask shortage. Patients are provided new masks only every three days. All staff on Unit 2B wear masks at all times, but no other personal protective equipment. Unlike Unit 2TR, the patients are not provided with bottles of hand sanitizer. There is hand sanitizer behind the nurse’s station, but the patients have to approach the station to ask for sanitizer. There are a couple of hand sanitizer dispensers on the unit, but the dispensers are often low on sanitizer. On Unit 2B, patients have to do their own laundry on specific days. However, the laundry room remains locked at all times, and often patients miss their days to do their laundry. The common areas of Unit 2B are sanitized daily, but the patients’ bedrooms are not. The patients are not provided with cleaning material to clean their own rooms, and must request to have their rooms sanitized. There are at least three bedrooms with two patients in each room. All meals are served in the unit cafeteria. There is supposed to be a limit of 10 patients in the cafeteria at a time, but when there are new staff members on the unit, this rule is not enforced. On the morning of April 15, 2020, new staff members allowed more than 10 people in the cafeteria to dine. There is supposed to be a limit of two patients per table, but on the morning of April 15, 2020, staff allowed at least four patients per table. Since the COVID-19 outbreak, staff are allowing patients to eat meals in the common area. In order to receive medication, the patients must approach a medication window and receive medication from staff. During the day, COVID19 positive patients are not allowed to utilize off-the-unit privileges, but they are allowed to freely walk around the unit and watch television in the common areas. Patients who are not symptomatic and/or have not tested positive for COVID-19 are permitted to watch television in the common area and share a couch with COVID-19 positive patients. Staff members are not enforcing social distancing during the day.
c. I learned about the conditions on Unit 2C of the Hospital. I learned that during the week of April 6, 2020, at least one patient presented with cold-like symptoms, but that patient was not tested for COVID-19. I learned that none of the patients on Unit 2C had been tested for COVID-19. The patients are not required to wear masks. If a patient asks for a mask, and if a mask is available, the staff will provide the patient with a mask. The patients are not provided with any other personal protective equipment. All staff members wear masks every day, but most do not wear any other personal protective gear. Some staff members wear gowns. Hand sanitizer is only available behind the nurse’s station desk, and patients have to approach the nursing station to request sanitizer. There are no hand sanitizer dispensers on Unit 2C. The patients on Unit 2C share bathrooms. I learned that often at least two days go by before the staff realize that there is no handsoap in the bathroom. The patients on Unit 2C must do their own laundry or designated days, and must request that the laundry room be unlocked in order to do laundry. The common areas of the Unit 2C are sanitized daily, but the patients’ bedrooms are not. The patients must request to have their bedrooms sanitized, and are not provided with cleaning material to clean their own bedrooms. At least three of the bedrooms on Unit 2C have two patients in each room. Meals are served either in the dining room or in the common area of the

Case 1:19-cv-03185-RDM Document 39-9 Filed 04/18/20 Page 3 of 3
unit. Eight patients are allowed in the dining room at a time, and two patients are allowed per dining table. When patients dine in the common area, social distancing is not enforced. Due to the number of patients on the unit, and the size of the unit, keeping six feet away from other patients is nearly impossible on the unit. Patients gather on the couches to watch television together. Some patients are presenting with coughing symptoms, but they are not restricted to their rooms. Medication is administered at a medication window, and 3-4 people line up at a time to receive their medication. There are no distancing requirements in the medication line.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief.
Executed on this 16th day of April 2020, in Hyattsville, MD.
_____________________________ Ashley Guzman Staff Attorney Public Defender Service for DC 633 Indiana Avenue NW Washington, DC 20001

Case 1:19-cv-03185-RDM Document 39-10 Filed 04/18/20 Page 1 of 2
DECLARATION OF WANDA ROSE PROGRAM DEVELOPER AT THE PUBLIC DEFENDER
SERVICE
I, Wanda Rose, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.
1. My name is Wanda Rose. I make these statements based upon my personal knowledge.
2. I have a Masters in Forensic Psychology and I work as a program developer in the Mental Health Division at the Public Defender Service for the District of Columbia (hereinafter “PDS”). I have served in this role since September 21, 2003. PDS is a federally funded, independent organization dedicated to representing indigent adults and children accused of crimes in the District of Columbia. My principal responsibility as a program developer at PDS is to assist attorneys in my division with the social work aspects of their cases.
3. As part of my duties as a program developer at PDS, I regularly speak to clients who are pending civil commitment proceedings and those who are committed at St. Elizabeths Hospital (“SEH”).
4. On April 15, 2020, I spoke to Client A, at SEH on the ward 1-G.
5. From this conversation I learned the following:
Client A had heard that nine people throughout SEH were COVID-19 positive. Client A had not heard of anyone on their ward being positive, and was not aware of anyone being in quarantine. All patients are confined to the ward.
Client A indicated that the safety protocols are inconsistently followed. Masks are available to patients on the ward; however patients have to request them. Some of the SEH staff are wearing them, some are not. Some patients are wearing them, some are not. They are not required. Client A said that some people don't like the masks, so they do not wear them. Patients can get a new mask but they must request one. Client A said some of the masks are homemade, and they have seen SEH staff making masks out of pajamas. Some staff are wearing gloves, some are not. Client A said that if a staff is going to give something (i. e., gloves, mask, medication) to a patient, the staff will put on gloves to do this. Client A said no staff are wearing gowns of any kind.
Client A indicated that cleaning seemed adequate. Soap and hand sanitizer are available upon request. Laundry services are available for patients to use during the day. Client A said the ward is professionally cleaned twice weekly. Patients are given supplies upon request and are able to clean their own rooms.
Client A indicated that social distancing is inconsistently practiced. Patients are allowed out of their rooms. Patients are still congregating in the common areas (i. e., the TV room) of the ward, with inadequate room for social distancing. Medication is still being given out at the

Case 1:19-cv-03185-RDM Document 39-10 Filed 04/18/20 Page 2 of 2
nurses' station, with patients lining up and limited room to social distance. Client A said they wait to get their own medication until everyone else has already gotten theirs, so they don't have to wait in the line. Meals are still in the dining room on the ward. Patients are limited to two individuals per table, down from the usual four per table. Tables have been moved to six feet apart. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief. Executed on the 15th day of April 2020, in North Beach, Maryland. Wanda Rose ____________________________ Program Developer Public Defender Service for DC 633 Indiana Ave. NW Washington, DC
2

Case 1:19-cv-03185-RDM Document 39-11 Filed 04/18/20 Page 1 of 2
DECLARATION OF DANIELLE MASON FORENSIC PROFESSIONAL COUNSELOR AT THE PUBLIC DEFENDER SERVICE
I, Danielle Mason, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.
1. My name is Danielle Mason. I am a licensed professional counselor in the District of Columbia. I make these statements based upon my personal knowledge.
2. I am a forensic professional counselor in the Mental Health Division at the Public Defender Service for the District of Columbia (hereinafter “PDS”) and have served in this role since August 20, 2018. PDS is a federally funded, independent organization dedicated to representing indigent adults and children facing loss of liberty in the District of Columbia.
3. As part of my duties as a forensic professional counselor at PDS, I frequently conduct visits and maintain regular contact with clients in the custody of St. Elizabeth’s Hospital.
4. During the pandemic, I have spoken to clients. Through those conversations, I learned the following:
a. On April 15, 2020, I spoke with Client A at St. Elizabeth’s Hospital, unit 2C. While masks are available, I learned that patients must ask for one from staff and some patients do not wear masks. New masks are provided to patients when they ask; although, never more than once per day. Staff are wearing masks, but I learned that some of the masks appear to be homemade. Staff on 2C have not been wearing gowns, or other personal protection equipment, since April 13, 2020. I learned that patients must ask staff to use hand sanitizer. I learned that the patients of 2C eat meals in the dining room and day room. All patients eat at the same time. Approximately 10 patients can eat in the dining room; the remainder eat in the day room. Most patients try to sit six feet apart, but one of the tables is set up in such a way that causes two patients to be back-to-back. I learned that patients spend most of their days in their bedrooms or in the day room. Some patients continue to play Wii video games, watch television in close quarters and sleep on the couch in the day room. I learned that medications on 2C continue to be administered from the medication room. Patients line up shoulder–to-shoulder three times per day to receive their medications.
b. On April 15, 2020, I spoke with Client B at St. Elizabeth’s Hospital, unit 2A. There are approximately 27 patients assigned to 2A. 2A patients presumed to be negative for COVID-19 will moved off the unit and into the gymnasium today. I learned that patients on 2A are provided with masks, which were described as paper thin and easily tear. I learned that patients do not have access to hand sanitizer, but there is soap in the bathroom. Housekeeping wipes down the unit approximately twice daily. Client B could not recall the last time that patient bedrooms were cleaned by housekeeping. I learned that patients on 2A eat in the dining room. Approximately eight patients are allowed to eat at one time and eating times are staggered. I learned that patients on 2A continue to receive medications from the medication room. Patients are encouraged to stand six feet apart, but often do not. I learned that patients with pending COVID-19 test results are not confined to their rooms and their

Case 1:19-cv-03185-RDM Document 39-11 Filed 04/18/20 Page 2 of 2 movements are not restricted on the unit.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief.
Executed on the 15th day of April 2020, in Washington, D.C.
Danielle Mason Forensic Professional Counselor Public Defender Service for DC 633 Indiana Ave. NW Washington, D.C.
2

Case 1:19-cv-03185-RDM Document 39-12 Filed 04/18/20 Page 1 of 2
DECLARATION OF PENELOPE DONKAR STAFF ATTORNEY AT THE PUBLIC DEFENDER SERVICE
I, Penelope Donkar, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.
1. My name is Penelope Donkar. I make these statements based upon my personal knowledge.
2. I am a staff attorney in the Mental Health Division (hereinafter “MHD”) at the Public Defender Service for the District of Columbia (hereinafter “PDS”) and have served in this role since June 2015. PDS is a federally funded, independent organization dedicated to representing indigent adults and children facing the loss of liberty in the District of Columbia. My principal responsibilities as a staff attorney at PDS are to represent both persons facing civil commitment and persons committed to the Department of Behavioral Health as a result of a not guilty by reason of insanity finding
3. In the course of my work, I regularly speak to clients who are committed to Saint Elizabeths Hospital (hereinafter “Hospital”), their guardians, and their treating doctors. Through those conversations, I learned the following:
a. Client A is an individual in care at St. Elizabeths Hospital. On April 11, 2020, I received a voicemail from Client A indicating that client was being admitted to a medical hospital with a fever. On Monday April 13, 2020, a physician at Georgetown Hospital contacted PDS for Client A’s guardian’s contact information. The physician indicated that the guardian’s contact information was not sent by St. Elizabeths with Client A. Additionally, St. Elizabeths had not contacted Client A’s guardian to inform him that Client A was suspected of having COVID-19, that client had been exposed to COVID-19 on the unit, or that client was being admitted to a medical hospital with COVID-19. St. Elizabeths also did not inform me about Client A’s medical status despite a properly executed HIPAA waiver previously on file.
b. Client B is an individual in care at St. Elizabeths Hospital. Client B is currently inpatient civilly committed. Client B was tested for COVID-19 last week. Following that test, the treatment team refused to provide information about Client B’s COVID status despite a properly executed HIPAA waiver. Client B’s guardian was not notified of the COVID-19 status of the unit or that Client B was being tested for COVID-19. Guardian discovered the existence of COVID-19 at St. Elizabeths after talking with the guardians of other individuals.
c. Client C was a patient on Unit 1B of St. Elizabeths. On Monday, April 6, 2020, I learned that my client, Client C, had been sent to George Washington University Hospital with symptoms of COVID-19 when I attempted to set up a video conference with him. At that time, he was awaiting COVID-19 test results. Despite having an executed HIPAA waiver for Client C, the treatment team did

Case 1:19-cv-03185-RDM Document 39-12 Filed 04/18/20 Page 2 of 2
not give me updates regarding Client C’s status. I did not receive an update about Client C until I received notice on April 10, 2020 that Client C had died at GWUH. 4. I have been attempting to track the status and location of MHD’s clients who have tested positive while at St. Elizabeths. Doing so has been difficult because Hospital staff has often refused to provide updates or disclose basic information about our clients upon request, even when there was a properly executed HIPAA waiver. Of the 18 MHD clients that I have identified as being positive or presumptively positive, it is my understanding that 11 still remain on various units at the Hospital. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief. Executed on the 17th day of April 2020 in Washington, D.C.
_____________________________ Penelope Donkar Staff Attorney Public Defender Service for DC 633 Indiana Avenue NW Washington, DC 20001
2

 
 Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 1 of 45

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENZO COSTA, et al., Plaintiffs,
v. BARBARA BAZRON, et al.,
Defendants.

Civil Action No. 19-3185 (RDM)

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER

Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 2 of 45
TABLE OF CONTENTS INTRODUCTION .......................................................................................................... 1 BACKGROUND ............................................................................................................. 1
I. COVID-19 in the District of Columbia.............................................................. 1 II. COVID-19 Response at Saint Elizabeths Hospital .......................................... 4
A. New Patient Admissions .................................................................................. 7 B. Screening and Testing for COVID-19 .............................................................. 8 C. Isolation and Cohorting .................................................................................. 10 E. Provision of Psychiatric and Medical Treatment .......................................... 12 F. Individualized Patient Assessments.............................................................. 14 G. Staffing............................................................................................................ 15 H. Personal Protective Equipment ..................................................................... 16 III. Plaintiffs’ Allegations and Procedural History............................................... 17 LEGAL STANDARD.................................................................................................... 18 ARGUMENT ................................................................................................................ 19 I. Plaintiffs Fail To Show They Will Suffer Irreparable Harm. ........................ 19 II. Plaintiffs Cannot Show a Likelihood of Success on the Merits. .................... 22 A. Plaintiffs’ Due Process Claim Is Not Likely To Succeed. .............................. 22 B. Plaintiffs Are Not Likely To Succeed on Their ADA Claim. ......................... 32 C. Plaintiffs Have Not Argued They Are Likely To Succeed on Their Claims
Based on Any Facts About the Fall 2019 Water Outage. ............................. 37 III. The Balance of Equities and Public Interest Counsel Against the
Preliminary Relief at Issue. ............................................................................ 37 CONCLUSION............................................................................................................. 40

Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 3 of 45

Cases

TABLE OF AUTHORITIES

Baker v. District of Columbia, 326 F.3d 1302 (D.C. Cir. 2003) ................................. 29

Benisek v. Lamone, 138 S. Ct. 1942 (2018) ................................................................ 42

Brown v. District of Columbia, 928 F.3d 1070 (D.C. Cir. 2019)........................... 36, 37

Buchanan v. Maine, 469 F.3d 158 (1st Cir. 2006) ...................................................... 39

Cameron v. Tomes, 990 F.2d 14 (1st Cir. 1993) ......................................................... 34

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) (CFGC) ...................................................................................................................... 22

CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738 (D.C. Cir. 1995) ..... 22

Cobell v. Norton, 455 F.3d 301 (D.C. Cir. 2006) ........................................................... 22

Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017)............................................................ 28

Davidson v. Cannon, 474 U.S. 344 (1986) .................................................................. 28

Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288 (D.C. Cir. 2009) ..................... 22

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189 (1989) ................. 28

Dist. 50, United Mine Workers of Am. v. Int’l Union, United Mine Workers of Am., 412 F.2d 165 (D.C. Cir. 1969)........................................................................................... 22

Doe v. Pfrommer, 148 F.3d 73 (2d Cir. 1998) ............................................................. 39

Estate of Phillips v. District of Columbia, 455 F.3d 397 (D.C. Cir. 2006) ................. 26

Experience Works, Inc. v. Chao, 267 F. Supp. 2d 93 (D.D.C. 2003) .......................... 21

Farmer v. Brennan, 511 U.S. 825 (1994) .................................................................... 28

Feliciano v. Gonzales, 13 F. Supp. 2d 151 (D.P.R. 1998) ........................................... 32

Garnett v. Zeilinger, 313 F. Supp. 3d 147 (D.D.C. 2018) ..................................... 41, 42

Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1 (D.C. Cir. 2019).......................................................................................................................... 41

Harvey v. District of Columbia, 798 F.3d 1042 (D.C. Cir. 2015) ............................... 29

iii

Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 4 of 45
Howell v. Gray, 843 F. Supp. 2d 49 (D.D.C. 2012) ..................................................... 39 In re Navy Chaplaincy, 738 F.3d 425 (D.C. Cir. 2013) ........................................ 22, 40 Ingraham v. Wright, 430 U.S. 651 (1977)................................................................... 25 Jackson v. District of Columbia, 826 F. Supp. 2d 109 (D.D.C. 2011) ........................ 35 Jordan v. District of Columbia, 161 F. Supp. 3d 45 (D.D.C. 2016) ............................ 29 Joy v. Healthcare C.M.S., 534 F. Supp. 2d 482 (D. Del. 2008) ............................ 32, 33 Kaucher v. Cty. of Bucks, 455 F.3d 418 (3d Cir. 2006) ........................................ 29, 32 Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015) ................................................. 26, 27 LaShawn A. v. Dixon, 762 F. Supp. 959 (D.D.C. 1991) ........................................ 34, 35 Nat’l Mining Ass’n v. Jackson, 768 F. Supp. 2d 34 (D.D.C. 2011) ....................... 22, 24 Olmstead v. Zimring, 527 U.S. 581 (1999)............................................................ 36, 38 P.C. v. McLaughlin, 913 F.2d 1033 (2d Cir. 1990) ............................................... 34, 35 Patten v. Nichols, 274 F.3d 829 (4th Cir. 2001) ......................................................... 33 Power Mobility Coal. v. Leavitt, 404 F. Supp. 2d 190 (D.D.C. 2005) ........................ 22 Seth v. District of Columbia, Civil Action No. 18-1034 (BAH), 2018 WL 4682023, at
*10 (D.D.C. Sept. 28, 2018) ................................................................................ 36, 39 Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) ........................................ 21, 25, 40 Shimon v. Dep’t of Corr. Servs. for the State of New York, Civil Action No. 93-3144,
1996 WL 15688, at *3 (S.D.N.Y. 1996) .................................................................... 33 Smith v. Henderson, 944 F. Supp. 2d 89 (D.D.C. 2013) ............................................. 25 Sweis v. U.S. Foreign Claims Settlement Comm’n, 950 F. Supp. 2d 44 (D.D.C. 2013) 25 Terrance v. Northville Regional Psychiatric Hosp., 286 F.3d 834 (6th Cir. 2002).... 34 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) .............................. 21, 22, 25 Youngberg v. Romeo, 457 U.S. 307 (1982) ...................................................... 26, 29, 34
iv

Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 5 of 45 Statutes 42 U.S.C. § 12132......................................................................................................... 35 Constitutional Provisions U.S. Const., amend. V.................................................................................................. 25
v

Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 6 of 45
INTRODUCTION Plaintiffs seek a temporary restraining order (TRO) against the District of Columbia, Department of Behavioral Health Director Barbara Bazron and Saint Elizabeths Hospital CEO Mark Chastang (collectively, the District), requiring that specific measures be implemented at Saint Elizabeths Hospital (Saint Elizabeths, or the Hospital) in response to the COVID-19 pandemic. In short, the majority of the measures plaintiffs seek are already in place. In light of this fact, plaintiffs cannot demonstrate irreparable harm absent a TRO, which would not significantly alter current operations at the Hospital. In addition, plaintiffs are unlikely to succeed on the merits of their claims under the Due Process Clause or the Americans with Disabilities Act (ADA), and they have not shown that the balance of the equities and the public interest weigh in their favor. Throughout this pandemic, Saint Elizabeths has implemented a variety of patient-protection protocols amid a fast-moving informational landscape and evolving recommendations from public health experts nationwide. Given that the Hospital is already implementing the majority of the measures plaintiffs seek, there is no preliminary relief appropriate for this Court to grant. Plaintiffs’ motion for a TRO should be denied.
BACKGROUND I. COVID-19 in the District of Columbia
On March 7, 2020, officials announced the District’s first confirmed case of COVID-19, an infectious respiratory illness caused by the novel coronavirus that has

Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 7 of 45

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

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

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

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

case;

D.C.

Health,

COVID-19

FAQs,

available

at

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

exhibited a range of symptoms or none at all, severe cases have been known to cause

shortness of breath, pneumonia and even death. Id. The World Health Organization

(WHO) has declared the spread of COVID-19 a global pandemic. See “WHO Director-

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

World Health Organization, March 11, 2020, available at

https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-

the-media-briefing-on-covid-19---11-march-2020.

Since early March 2020, U.S. cities and states have ordered the closure of

schools and non-essential businesses, banned large gatherings and recommended

that individuals who do not live in the same household abide by now-familiar “social

distancing” measures where feasible. See, e.g., Jesse McKinley and Michael Gold,

Ban on Large Gatherings in N.Y. as Coronavirus Cases Rise Sharply, N.Y. Times,

March

12,

2020,

available

at

https://www.nytimes.com/2020/03/12/nyregion/coronavirus-nyc-event-ban.html;

Dominic Fracassa, SF bans large gatherings as nation moves to confront pandemic,

San Francisco Chronicle, March 11, 2020, available at

2

Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 8 of 45
https://www.sfchronicle.com/bayarea/article/Mayor-London-Breed-bans-all-largegatherings-15123312.php. The District is no exception. On February 28, 2020, more than a week before the District recorded its first case of COVID-19, Mayor Muriel Bowser issued an order preemptively activating the District’s Emergency Operations Center and requiring all District agencies to ensure they had up-to-date plans for emergency operations. See Mayor’s Order 2020-035, February 28, 2020, available at https://dchealth.dc.gov/sites/default/files/dc/sites/doh/page_content/attachments/202 0-035-District-Government-Preparation-for-the-Coronavirus-COVID-19.pdf.
While the District prepared in earnest, events unfolded quickly. By March 11, 2020, Mayor Bowser issued a Declaration of Public Emergency and a Declaration of Public Health Emergency based on the WHO declaration of a pandemic, as well as on the outbreaks seen in other cities throughout the world. See Mayor’s Order 2020-045, March 11, 2020, available at https://mayor.dc.gov/sites/default/files/dc/sites/ mayormb/release_content/attachments/MO.DeclarationofPublicEmergency03.11.20. pdf; Mayor’s Order 2020-046, March 11, 2020, available at https://mayor.dc.gov/sites/default/files/dc/sites/mayormb/release_content/attachment s/MO.DeclarationofPublicHealthEmergency03.11.20.pdf. Both Declarations have since been extended through at least May 15, 2020, and the District remains under a stay-at-home order. See Mayor’s Order 2020-063, April 15, 2020, available at https://coronavirus.dc.gov/sites/default/files/dc/sites/coronavirus/publication/attachm ents/MayorsOrder2020.063.pdf.
Despite federal, state and local government efforts across the country, COVID-
3

Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 9 of 45
19 has continued to spread rapidly, generating immense demand for protective face masks, gloves, hand sanitizer and other products used to limit transmission of pathogens; a shortage of all these items has resulted. See United States Conference of Mayors, “Shortages of COVID-19 Emergency Equipment in U.S. Cities: A Survey of the Nation’s Mayors,” March 27, 2020, available at https://www.usmayors.org/issues/covid-19/equipment-survey/ (noting, for example, that 91.5% of cities surveyed do not have an adequate supply of face masks for their first responders). This case arises in the context of an unprecedented response to an unprecedented situation. II. COVID-19 Response at Saint Elizabeths Hospital
Saint Elizabeths Hospital, overseen by the District of Columbia Department of Behavioral Health (DBH), is the District’s only public psychiatric facility for individuals with serious and persistent mental illness requiring intensive inpatient care to support their recovery. Declaration of Philip Candilis (Candilis Decl.), Ex. 1 ¶ 2. The Hospital is licensed to house 292 patients in 12 different units, with an average daily patient census of approximately 275. Declaration of Rich Gontang (Gontang Decl.) Ex. 2 ¶ 6. Each unit at the Hospital generally houses no more than 27 patients, and has bedrooms, common living areas, bathrooms and showering facilities, and dining areas. Id.
Assigned to each unit is a designated treatment team consisting of a variety of professionals devoted to the care of each patient in that unit. Gontang Decl. ¶ 11. Each treatment team consists of a clinical administrator that is responsible for
4

Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 10 of 45
coordinating all care, a psychiatrist responsible for psychiatric treatment and medication, a social worker responsible for discharge planning, and a registered nurse responsible for daily nursing care. Id. Each unit also has a general medical officer or nurse practitioner to assist with medical issues, and a psychologist. Id. Other specialists such as neurologists are available throughout the Hospital as needed. Id.
Saint Elizabeths generally admits three categories of patients: (1) pre-trial patients; (2) post-trial patients adjudicated not guilty by reason of insanity (NGBRI) in criminal court proceedings; and (3) civilly committed patients admitted through the civil commitment process. Candilis Decl. ¶ 6. Since Mayor Bowser declared a District-wide public health emergency on March 11, 2020, the population at Saint Elizabeths has been significantly reduced; the population stands at 226 patients as of April 20, 2020, down from 277 on February 1, 2020. Declaration of Martha Pontes (Pontes Decl.), Ex. 3, ¶ 4. This reduction has been the result of both reduced admissions and increased patient discharges to the community. See Candilis Decl. ¶ 7; Gontang Decl. ¶ 7.
Saint Elizabeths is unique among healthcare facilities in that it is foremost a psychiatric treatment facility but also houses pre-trial defendants and shares similarities with long-term nursing facilities. Gontang Decl. ¶ 5. COVID-19 has thus presented the Hospital with unique challenges. Hospital officials have been continuously evaluating Saint Elizabeths’s policies and practices, and as the Centers for Disease Control and Prevention (CDC) and the District of Columbia Department
5

Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 11 of 45

of Health (DOH) have issued new guidance related to the pandemic, the Hospital’s policies and practices have evolved to comply. See DBH Administrative Issuance #2020-001, Ex. 3 (effective date January 29, 2020, and updated no fewer than five times to provide additional guidance on managing the COVID-19 epidemic). For example, in just this past week, the CDC issued new guidance on the recommended standards of care for patients in healthcare settings and long term care facilities, including new recommendations on face coverings and visitor screenings.1 Then, on April 14, 2020, DOH issued similar guidance recommending for the first time that face masks be worn by everyone—patients, visitors and personnel—in facilities such as Saint Elizabeths. See District of Columbia Department of Health, Letter to Long Term Care Facilities Administrators (April 14, 2020), available at https://dchealth.dc.gov/sites/default/files/dc/sites/doh/publication/attachments/DC_H ealth_COVID-19_LTCF_Coverings_and_Masks_2020.04.14.pdf (April 14 DOH Letter). The following day, Mayor Bowser issued Order 2020-063 mandating that specific precautions be taken at Saint Elizabeths to protect the health of patients and staff. See Mayor’s Order 2020-063, April 15, 2020, available at

1

See Centers for Disease Control and Prevention, Interim Infection Prevention

and Control Recommendations for Patients with Suspected or Confirmed

Coronavirus Disease 2019 (COVID-19) in Healthcare Settings (April 13, 2020),

available at https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-

recommendations.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcorona

virus%2F2019-ncov%2Finfection-control%2Fcontrol-recommendations.html (CDC

Healthcare Settings Recommendations); Centers for Disease Control and Prevention,

Preparing for COVID-19: Long-term Care Facilities, Nursing Homes, available at

https://www.cdc.gov/coronavirus/2019-ncov/hcp/long-term-care.html (Preparing for

COVID-19).

6

Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 12 of 45
https://coronavirus.dc.gov/release/mayor-bowser-extends-public-health-emergencystay-home-order-and-closure-non-essential. The Hospital has worked expeditiously to ensure its policies and procedures conform to these new best practices and meet the Hospital’s obligation to provide patient care in the least restrictive setting possible.2 Current practices and policies at Saint Elizabeths include the following.
A. New Patient Admissions Saint Elizabeths provides critical services to some of the District’s most vulnerable residents, and the need for these services has not stopped during the current public health emergency. Gontang Decl. ¶ 5. The Hospital has implemented thorough procedures to allow for the continued admissions of limited new patients during the pandemic, while also protecting the patients already in its care. Saint Elizabeths limits admissions to court-ordered pre-trial individuals and only those referred through the civil commitment process for whom (1) admission to the Hospital is medically necessary, and (2) no less restrictive treatment option is available. See Candilis Decl. ¶ 5. Since March 11, 2020, the Hospital admissions have been lower than the Hospital’s pre-COVID-19 average. Id. ¶ 7.

2

On April 17, 2020, physicians from the CDC and DOH visited the Hospital and

toured several different units to see the COVID-19 response measures. The CDC was

complimentary of the Hospital’s efforts and stated no negative findings. Tu Decl. ¶

___. The physicians offered the following verbal recommendations for continued

improvement in operations: (1) prioritizing usage of PPE; (2) optional usage of head

and shoe coverings; (3) minimizing staff rotation among units whenever possible; (4)

minimizing groups of staff eating in the breakroom; (5) continuing to provide training

on correct usage of PPE; and (6) encouraging staff to make on-the-spot corrections

when staff are not using PPE appropriately. Id. ¶¶ 9-10.

7

Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 13 of 45

Before arriving at Saint Elizabeths, most patients admitted through the civil commitment process will have first received treatment at other area hospitals from which they are being transferred. Candilis Decl. ¶ 8. At the time of transfer, the patient will generally have been monitored in acute hospital care for over two weeks, which allows Saint Elizabeths to fully assess the need for admission and that the patient was properly screened for COVID-19 and is not exhibiting any symptoms. Id. ¶¶ 8-9. Further, after arriving at the Hospital but before being placed on a unit, each patient is screened again for COVID-19 by Hospital staff. Id. ¶ 9.
Pre-trial patients also receive careful screening. Because pre-trial patients often arrive directly from the community and not from another healthcare provider, Saint Elizabeths is now requesting that the court order the District of Columbia Department of Corrections (DOC) to test pretrial patients for COVID-19 prior to their arrival at the Hospital. Declaration of Martha Pontes (Pontes Decl.) Ex. 4 ¶ 15. The results of their test will then dictate which unit they are placed into as described below.3
B. Screening and Testing for COVID-19 Saint Elizabeth adheres to all CDC and DOH guidance on how to screen patients and staff for COVID-19.4 On March 30, 2020, the Hospital implemented

3

Since March 23, 2020, only one pretrial defendant has been ordered to the

Hospital for a competency evaluation. Id. ¶ 7. That patient has been tested for

COVID-19 by DOC and will be housed accordingly pending the results of the test. Id.

¶ ___.

4

See CDC Healthcare Settings Recommendations; Preparing for COVID-19.

8

Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 14 of 45
DOH’s Administrative Issuance 2020-001 requiring that every individual entering the Hospital—staff, contractors and visitors—be screened before admission.5 Declaration of Yi-Ling Elaine Tu (Tu Decl.) Ex. 5 ¶ 13; DOH Admin. Issuance 2020001. Current screening includes a temperature check using a no-touch infrared thermometer and, beginning April 20, 2020, a questionnaire to determine whether the individual is at risk of having COVID-19. See Tu Decl. Ex. 5 ¶ 14. Any individual whose temperature reading exceeds 100 degrees Fahrenheit or whose answers suggest they may have COVID-19 is denied entry into the Hospital. Id.
Pursuant to CDC and DOH recommendations, all Saint Elizabeths patients receive a daily screen for COVID-19 symptoms, which includes a check of the patient’s vital signs. Pontes Decl. ¶ 14. Patients are evaluated for testing pursuant to CDC and DOH guidelines, which do not recommend general testing of asymptomatic patients. Id.. Any patient exhibiting COVID-19 symptoms that meet the guidelines for testing is screened, provided a mask if needed, transferred to a “person under investigation” (PUI) unit and tested. Id. Using test sample collection kits on-site, Hospital staff collect a swab from the patient and send the sample to the District of Columbia Department of Forensic Services laboratory for testing. Id. Results are returned within 24 to 48 hours. Id. The patient remains in the PUI unit while awaiting test results.

5

As of April 15, 2020, visitors allowed into the Hospital are generally limited to

attorneys and interpreters. See Mayor’s Order 2020-063, April 15, 2020, available at

https://coronavirus.dc.gov/sites/default/files/dc/sites/coronavirus/publication/attachm

ents/MayorsOrder2020.063.pdf.

9

Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 15 of 45
C. Isolation and Cohorting In response to the pandemic, Saint Elizabeths has implemented “cohorting” practices—housing COVID-positive patients together in units isolated from other patients—as recommended by the CDC. Tu Decl. ¶ 7; see also CDC Healthcare Settings Recommendations. On top of the patient units previously in operation, on April 15, 2020, the Hospital converted an auxiliary programming wing called the Therapeutic Learning Center (TLC) into an additional housing unit to facilitate the cohorting process. Gontang Decl. ¶ 7. Currently, the hospital has two dedicated isolation units housing only patients who have tested positive for COVID-19. Tu Decl. ¶ 7. In addition, the Hospital has one PUI unit where patients awaiting test results are housed. Id. Nursing and medical staff assigned to the isolation units minimize contact with patients and staff members throughout the rest of the Hospital. Id. As of today, the remaining nine units do not house any patients that have tested COVIDpositive, are awaiting test results, or are suspected of COVID based on their symptoms. Id. D. Patient Protections
1. Social Distancing Because COVID-19 is believed to spread mainly from person to person, the CDC recommends that everyone practice social distancing. See Centers for Disease Control and Prevention, Social Distancing, Quarantine and Isolation, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing
10

Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 16 of 45
.html. To promote social distancing and reduce contact between patients, the Hospital has suspended group therapies and other communal activities which previously took place in the TLC, and, as explained above, converted the TLC into an auxiliary housing unit. Gontang Decl. ¶ 17. Meal practices have been modified to reduce the number of patients present in the dining hall at any given time, including staggering meals and allowing patients to eat meals in their rooms. Pontes Decl. ¶ 9.
All staff have been trained to practice and enforce social distancing, and staff do as much as they can to ensure patients practice distancing safely. Id. For example, when receiving medication at their unit’s medication window, each patient is instructed to approach the window one at a time to ensure patient privacy and, now, to maintain social distancing. Id. ¶ 10. If another patient approaches, staff will redirect the patient and remind them to maintain safe spacing. Id. While the physical space in the various units is more than sufficient for patients to practice social distancing, patient response to the social distancing guidance from staff has been mixed, and it can be difficult to enforce without impinging on patient autonomy. Id.
2. Face Masks On April 14, 2020, DOH issued new guidance recommending all patients be provided with a facemask when possible. See April 14 DOH Letter. As plaintiffs note, all patients currently have access to facemasks. Pontes Decl. ¶ 13; Guzman Decl. [339] ¶ 3. The Hospital has a sufficient inventory of surgical masks and receives regular replenishments, which are then made available to patients who request them. Pontes Decl. ¶ 13; Declaration of Renee Bivins (Bivins Decl.) Ex. 6 ¶ 8. In addition, the
11

Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 17 of 45

Hospital’s Department of Recreation has made and distributed cloth masks for patients that can be washed and reused. Pontes Decl. ¶ 13. Staff members all wear different levels of face protection depending on the unit in which they are providing care and according to CDC guidelines and recommendations. Id. ¶ 11. At minimum, as of April 21, 2020, each staff member wears a face mask and a face shield. Id.
3. Hand Hygiene All patients have access to soap and sinks in the bathrooms to wash their hands as needed.6 Bivins Decl. ¶ 8. Housekeeping checks the bathrooms daily to ensure that there is an adequate supply of soap and paper towels. Id. Patients can also ask for soap at nurses’ stations in their units. Id. In addition, hand sanitizer is available on all units, though on certain units, patients are required to ask nursing staff to dispense the sanitizer for them.7 Id.
4. Additional Cleaning Measures All parts of Saint Elizabeths, including patient rooms and bathrooms, are cleaned by professional cleaning staff throughout each day between 6:00 a.m. and 11:30 p.m. Bivins Decl. ¶¶ 5- 6. The Hospital has also hired an additional ten cleaning contractors to increase the frequency of cleaning. Id. ¶ 6. In addition to regular housekeeping practices, cleaning staff now focus on cleaning and sanitizing “high touch areas” such as rails and doorknobs. Id. E. Provision of Psychiatric and Medical Treatment

6

Plaintiffs’ own evidence confirms this. See Rose Decl. [39-10] ¶ 5.

7

Plaintiffs’ evidence confirms this, too. Guzman Decl. ¶ 3 ; Rose Decl. ¶ 5.

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Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 18 of 45
Patients receive a variety of treatment while they reside at Saint Elizabeths, much of which remains unchanged during the COVID-19 health emergency. While group therapies have been suspended based on CDC social distancing guidance, patients at the hospital continue to receive the psychiatric treatment, medicine and other services they received prior to the health emergency. Gontang Decl. ¶ 11. Each patient has a treatment team on the unit where they reside that consists of a clinical administrator that is responsible for coordinating all care, a psychiatrist responsible for psychiatric treatment and medication, a social worker responsible for discharge planning, and a registered nurse responsible for daily nursing care. Id. In addition, each unit has a general medical officer or nurse practitioner to assist with medical issues, and a psychologist. Id. Patients continue to receive appropriate and individualized psychiatric treatment, including medications, psychological support, nursing and social work services, as well as other specialty services they require. Id. There has also been a documented reduction in the incidents of aggressive behavior by patients in the last month. See Gontang Decl. ¶ 14 (below average instances of “unusual incidents of physical assault” and “unusual incidents of aggressive behavior” in last 30 days).
Although most group therapies and activities have been suspended during the pandemic, Hospital staff are working to expand their telemedicine capabilities to facilitate continuity of care for patients with outside providers and are monitoring patients to ensure these changes do not negatively affect each patient’s psychological stability. Id. ¶ 12. Currently, the Hospital has provided each unit with a computer
13

Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 19 of 45
and access to WebEx teleconferencing software that patients can use for teletherapy and telemedicine with outside practitioners. Id. On April 17, 2020, the Hospital received 14 new WebEx enabled devices to expand its telemedicine capabilities. Id. ¶ 13.
F. Individualized Patient Assessments Saint Elizabeths regularly conducts individualized assessments of all patients, “identifying potential for treatment in the least restrictive environment.” Gontang Decl. ¶ 7. This is the core function of the Hospital’s Department of Social Work at all times, including during the current COVID-19 pandemic. Id. The Hospital has completed individual assessments of each patient during the COVID-19 health emergency, assessing both their fitness for discharge and whether Saint Elizabeths remains the least restrictive setting for their continued care. See id. ¶¶ 7-10. In response to a recent motion filed in Superior Court, Saint Elizabeths completed individual evaluations of all pre-trial patients charged with misdemeanors and made recommendations to the court. Id. ¶ 7; see also D.C. Code § 24-531.06. As of April 17, 2020, the court has ordered the discharge of 14 patients as a result. See Id. Saint Elizabeths has also completed individual assessments for post-trial patients. Id. ¶ 8. The Hospital, however, is required by statute to consider public safety and the risk of dangerousness and recidivism when evaluating post-trial patients for community release, and the Hospital cannot release any post-trial patient without Superior Court approval. Id.; see D.C. Code § 24-501(e). Finally, the Hospital has completed individualized assessments for all civilly committed patients. See
14

Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 20 of 45
Gontang Decl. ¶ 9. While some individuals were found eligible to receive treatment in the community, barriers such as the unavailability of safe and stable housing stand in the way of discharge for many. Id. ¶ 10. For example, most patients are not able to live independently immediately upon discharge, and admissions to group homes or nursing homes are severely curtailed because of COVID-19. Id. DBH generally recommends against discharge into homeless shelters, which may not have the necessary support services for successful community transition. Id. Successful community discharge instead typically involves close coordination with a communitybased mental health services provider called a Core Services Agency (CSA). Id. But because CSAs cannot always provide services to a patient without stable housing, the lack of stable housing presents a barrier discharge. Id.
Discharge into the community is even more difficult during the pandemic because the threat of COVID-19 exists everywhere. Gontang Decl. ¶ 10. For example, group homes pose the risk of exposure among asymptomatic roommates, guardians and others that are free to travel in and out of the home. Id. A vulnerable patient that does not have the mental capacity to adhere to social distancing, cough etiquette, hand washing and other COVID-19 precautions in the community may be safer in an environment with ready access to mental health, medical and nursing care. Id. Saint Elizabeths nonetheless continues to evaluate patients for the possibility of community transition.
G. Staffing
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Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 21 of 45
Throughout the pandemic, the Hospital has maintained adequate staffing to ensure patients receive adequate care and treatment. Pontes Decl. ¶ 4. The nursing department maintains a staffing matrix to ensure the proper number of nurses, nurses assistants and behavioral health technicians are present in each unit based on the patient census on any given day. Id. ¶ 6. The Hospital has 760 staff, 83 of which are currently out because they are COVID-positive or symptomatic. Id. ¶ 4. To assist while staff members are unavailable, the Hospital has brought in 31 additional nursing staff, and increased the number of contract medical personnel at the Hospital. Id. ¶ 7. All contract medical personnel participate in a three-day orientation and onboarding process to ensure they are familiar with the platforms and procedures of the Hospital. Id.
H. Personal Protective Equipment The Hospital has adequate personal protective equipment (PPE) to comply with CDC guidelines and recommendations, Pontes Decl. ¶ 11, and receives deliveries of PPE several times per week. Id. ¶ 12. In accordance with CDC and DOH guidance, staff are required to wear facemasks at all times when they are present on patient units. Id. ¶ 11. As of April 20, 2020, staff also don face shields whenever they interact with patients on general units. For PUI units, staff utilize gown, N95 mask, goggles, gloves and shoe covers Id.. On isolation units, a respirator or “PAPR mask” is required. Id. The Hospital has conducted WebEx trainings with all staff on appropriate PPE levels and how to don and doff each type of PPE safely according to CDC guidelines, and has issued written guidance. Id.
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Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 22 of 45
III. Plaintiffs’ Allegations and Procedural History Plaintiffs’ operative complaint only contains allegations pertaining to a
temporary water outage that occurred at Saint Elizabeths in the fall of 2019. See Compl. [1] ¶¶ 1-4. Plaintiffs filed this putative class action on October 23, 2019, asserting two counts: a substantive due process claim under 42 U.S.C. § 1983 and a disability discrimination claim under the ADA, 42 U.S.C. § 12131, et seq. Id. ¶¶ 97110. Plaintiffs sought declaratory and injunctive relief. See id. ¶¶ 111-17. The Hospital began restoring normal water usage the same day the Complaint was filed, and on December 16, 2019, the District moved to dismiss the case as moot. See Mot. to Dismiss [21]. In response to the motion to dismiss, plaintiffs moved for jurisdictional discovery on December 20, 2019, see Pls.’ Mot. for Jurisdictional Discovery [23], and the District opposed on January 3, 2020, see District’s Opp’n to Mot. for Jurisdictional Discovery [27]. After oral argument on January 22, 2020, the Court granted plaintiffs’ requests in part and plaintiffs served discovery requests on January 29, 2020. The District provided responses on February 28, 2020. Plaintiffs’ response to the District’s motion to dismiss is due 14 days after the District produces the requested documents.
Then, on April 16, 2020, plaintiffs moved for an emergency hearing and leave to file an amended complaint, alleging that the District has not been taking proper measures at Saint Elizabeths to mitigate the risks of COVID-19 to patients. See Pl.’s
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Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 23 of 45

Mot. For Emergency Hearing [36]; Proposed Am. Compl. [36-1] ¶¶ 37-122.8 The Proposed Amended Complaint includes new factual allegations related to the current COVID-19 global pandemic and the District’s response. See Proposed Am. Compl. ¶¶ 37-122. On April 16, the Court granted plaintiffs’ request for an emergency hearing and the Parties appeared telephonically on April 17, 2020. The Court set an expedited briefing schedule for plaintiffs’ motion for leave to file an amended complaint, and plaintiffs’ request for emergency relief. Pursuant to that schedule, plaintiffs filed a motion for a temporary restraining order on April 18, 2020, and the District opposed by 4:00 p.m. on April 21, 2020. Any reply is due by 12:00 p.m. on April 22, 2020. A hearing is scheduled for 3:30 p.m. on April 23, 2020.
LEGAL STANDARD A temporary restraining order “is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.’” Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). “The same standards apply for both temporary restraining orders and preliminary injunctions.” Experience Works, Inc. v. Chao, 267 F. Supp. 2d 93, 96 (D.D.C. 2003). A plaintiff seeking a TRO must establish that: (1) “he is likely to succeed on the merits”; (2) “he is likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the balance of equities tips in his favor”; and (4) “an injunction is in the

8

The District has opposed plaintiffs’ motion for leave to amend their Complaint.

See District’s Opp’n to Pls.’ Mot. for Leave to Amend [40]. In addressing plaintiffs’

new allegations and proposed claims below, the District does not waive the arguments

made in that opposition.

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Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 24 of 45
public interest.” Sherley, 644 F.3d at 392. Because injunctive relief is an extraordinary remedy, a plaintiff seeking such relief must prove all four prongs of the standard before relief can be granted. In re Navy Chaplaincy, 738 F.3d 425, 428 (D.C. Cir. 2013); Winter, 555 U.S. at 22. The plaintiff bears the burden of doing so. Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009).
“The usual role of a preliminary injunction is to preserve the status quo pending the outcome of litigation.” Cobell v. Norton, 455 F.3d 301, 314 (D.C. Cir. 2006) (quoting Dist. 50, United Mine Workers of Am. v. Int’l Union, United Mine Workers of Am., 412 F.2d 165, 168 (D.C. Cir. 1969)); see also Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (CFGC) (same).
ARGUMENT I. Plaintiffs Fail To Show They Will Suffer Irreparable Harm.
A TRO is fundamentally about establishing the need for immediate relief. For that reason, the “failure to demonstrate irreparable harm is grounds for refusing to issue a [TRO], even if the other three factors … merit such relief.” Nat’l Mining Ass’n v. Jackson, 768 F. Supp. 2d 34, 50 (D.D.C. 2011) (citation and internal quotation marks omitted); see also CFGC, 454 F.3d at 297 (observing that there is “a high standard for irreparable injury”). “[P]roving irreparable injury is a considerable burden, requiring proof that the movant’s injury is certain, great and actual—not theoretical—and imminent, creating a clear and present need for extraordinary equitable relief to prevent harm.” Power Mobility Coal. v. Leavitt, 404 F. Supp. 2d 190, 204 (D.D.C. 2005) (citations and internal quotation marks omitted). If a party fails to make a sufficient showing of irreparable injury, a court may deny a motion
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for preliminary relief without considering the other factors. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995).
The specific relief plaintiffs have requested makes clear that they will not suffer irreparable harm absent a TRO. The primary reason is straightforward: Saint Elizabeths is already taking the overwhelming majority of the measures plaintiffs request. Treatment teams already monitor patients individually for potential new issues and needed changes to their treatment plans, see Pls.’ Proposed Order ¶¶ 2, 9; Gontang Decl. ¶ 11, and have been evaluating patients for the possibility of community placement, recommending individuals for release where appropriate, see Pls.’ Proposed Order ¶¶ ; Gontang Decl. ¶¶ 7-9. Medical staff already monitor patients for symptoms of COVID-19 and conduct tests according to CDC and DOH guidelines, isolate and quarantine individuals appropriately, and provide necessary PPE for symptomatic individuals. See Pls.’ Proposed Order ¶ 5; Tu Decl. ¶ 7, 11; Pontes Decl. ¶ 5. All patients already have consistent access to soap, hand sanitizer, and running water, and regular cleaning and disinfecting services are provided daily—and sometimes hourly—throughout the facility. See Pls.’ Proposed Order ¶ 6; Bivins Decl. ¶¶ 8. Patients are already appropriately housed in isolation units, PUI units, and general housing units based on the likelihood of whether they have contracted the virus. See Pls.’ Proposed Order ¶ 7; Pontes Decl. ¶ 14. And staff already educate patients on COVID-19 symptoms and prevention measures through individual handouts, one-on-one conversations, coordination with the Patient Advocates Group and the Patient Advisory Counsel, and previously through community meetings. See
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Pls.’ Proposed Order ¶ 8; Tu Decl. ¶ 5. Two requests for relief remain: an order directing Saint Elizabeths to cease
new patient admissions and another directing Saint Elizabeths to provide the Court with daily reports reflecting its ongoing compliance with specified measures and updated information about the patient population. See Pls.’ Proposed Order ¶¶ 1, 10. As to the first of these, even assuming the District could prevent the Superior Court from referring new patients (which it cannot), new patient arrivals are already well below normal, and the new-patient screening procedures currently in place ensure the separation of positive and suspected COVID-19 cases from the general patient population. See Pls.’ Proposed Order ¶ 1; Pontes Decl. ¶ 15; Candilis Decl. ¶¶ 7-9. Plaintiffs have sufficient space to engage in social distancing at all times and will not be housed in a situation that exposes them to an unreasonable risk of contracting the virus. Pontes Decl. ¶¶ 9-10. As to the second, and based on the evidence presented, plaintiffs will suffer no harm if the Court does not order Saint Elizabeths to issue reports on what it is already doing.
No harm will come to plaintiffs, let alone irreparable harm that is certain and imminent, if the Court denies their request for a TRO and Saint Elizabeths continues to carry out the measures it has put in place. This alone suffices to deny plaintiffs’ request for a TRO. See Nat’l Mining Ass’n, 768 F. Supp. 2d at 50.9

9

On April 20, 2020, Mayor Bowser also announced she had appointed a team of

“health and operational experts from” the District government to “review, scrutinize,

and, when appropriate, recommend changes to the policies and practices in place at

… Saint Elizabeths.” See Government of the District of Columbia, Coronavirus

(COVID-19) Situational Update Monday, April 20, 2020, at 6, available at

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II. Plaintiffs Cannot Show a Likelihood of Success on the Merits. Demonstrating a likelihood of success on the merits is a free-standing
requirement, Sherley, 644 F.3d at 393, and the failure to meet the burden on this prong “is alone sufficient to defeat” a motion for emergency injunctive relief, Smith v. Henderson, 944 F. Supp. 2d 89, 96 (D.D.C. 2013). The Court need not conclude that plaintiffs will definitely lose on the merits, only that they have not met the demanding burden of showing a clear entitlement to immediate, extraordinary relief. Sweis v. U.S. Foreign Claims Settlement Comm’n, 950 F. Supp. 2d 44, 48 (D.D.C. 2013). To overcome this burden, it must be shown not merely that success is a “possibility” but that it is “likely.” Winter, 555 U.S. at 20-22. Plaintiffs raise two claims for relief in their Complaint but ultimately fail to show a likelihood of success on the merits for either one.
A. Plaintiffs’ Due Process Claim Is Not Likely To Succeed. The record and plaintiffs’ own framing of the law show they are unlikely to succeed on their due process claim. See Proposed Am. Compl. ¶¶ 218-24. The Constitution prohibits the government from depriving people of life, liberty or property without due process of law. U.S. Const., amend. V.10 This includes the guarantee of “substantive” due process, or the protection from “unjustified intrusions on personal security.” Ingraham v. Wright, 430 U.S. 651, 673 (1977). Although such
https://coronavirus.dc.gov/sites/default/files/dc/sites/coronavirus/release_content/att achments/Situational%20Update%20Presentation_new-04202020.pdf. Plaintiffs’ request for ongoing reporting is especially unnecessary in light of this announcement. 10 The Due Process Clause of the Fifth Amendment applies to the District. See Bolling v. Sharpe, 34 U.S. 497, 498 (1954).
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Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 28 of 45
conduct “usually takes the form of affirmative state action,” the failure to act by government officials can also implicate the due process clause in some circumstances. Estate of Phillips v. District of Columbia, 455 F.3d 397, 403 (D.C. Cir. 2006).
A well-established line of authority analyzes due process in circumstances such as these. In Youngberg v. Romeo, 457 U.S. 307 (1982), the Supreme Court recognized that the Due Process Clause imposes on the government a “duty to provide certain services and care” to “a person [who] is institutionalized—and wholly dependent on the State.” Id. at 317. These include duties “to provide adequate food, shelter, clothing, and medical care,” and “reasonable safety for all residents and personnel within the institution.” Id. at 324. Plaintiffs’ charge here falls under the rubric of Youngberg, to the extent they allege inadequate care.11 But their challenge cannot succeed for two reasons.
First, although plaintiffs identify isolated components of care that have been modified or interrupted during the COVID-19 pandemic, plaintiffs do not (and cannot) show that they are being denied “adequate” care or “reasonable safety.” See Youngberg, 457 U.S. at 324. The record supports that Saint Elizabeths is providing residents with adequate accommodations, medical and psychiatric care, and the
11 Plaintiffs incorrectly attempt to frame this case under the legal standards applicable to cases involving affirmative actions by state officials. See Pls.’ Mem. at 18-19 (citing Kingsley v. Hendrickson, 135 S. Ct. 2466, 2475 (2015)). The key case they cite, Kingsley, addresses “the appropriate standard for a pretrial detainee’s excessive force claim” under the Due Process Clause. See id. at 2473. Plaintiffs here, however, do not allege excessive force, nor do they raise claims based on any affirmative acts taken by government officials. They instead allege inadequate care during their involuntary commitment to a District-run psychiatric facility—in other words, a claim based on the failure to act.
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items they need to protect themselves from COVID-19 according to current public health guidelines. The Hospital has taken broad precautions related to the virus, such as making face masks readily available to all patients and separating residents into dedicated units based on the likelihood of whether they have contracted the virus. See Pontes Decl. ¶¶ 13-14; Tu Decl. ¶¶ 7-8. Treatment teams continue to provide patients with individualized care, including psychiatric and medical care. Gontang Decl. ¶ 11. Although some therapy services have been paused based on CDC guidance to minimize in-person gatherings, id., hospital staff have set up computers and tablets for patients to take part in virtual individualized therapy sessions with outside providers, id. ¶¶ 12-13.12 Plaintiffs cannot show that they are being subjected to inadequate care, an unreasonable risk to their health and safety, or a deficiency of any other rights to which they are entitled under the Constitution.
Second, even if there were a deficiency in their care, plaintiffs are incorrect that this alone would establish a violation of their due process rights. The Fifth Amendment does not establish a negligence regime by which any pre-trial detainee can show a due process violation when any actions taken against that individual “are objectively unreasonable.” See Pls.’ Mem. at 18-19. In numerous cases (including Kingsley, the key authority on which plaintiffs rely), the Supreme Court has emphasized just the opposite: that constitutional due process violations require more than mere negligence by government actors. See Kingsley, 135 S. Ct. at 2472
12 Plaintiff Smith, for example, states that she has had “remote therapy via telemedicine” once a week for the last two weeks. See Smith Decl. [39-8] ¶ 10.
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Case 1:19-cv-03185-RDM Document 42 Filed 04/21/20 Page 30 of 45
(“[L]iability for negligently inflected harm is categorically beneath the threshold of
constitutional due process” (Court’s emphasis)); Davidson v. Cannon, 474 U.S. 344,
347 (1986) (“[T]he Due Process Clause of the Fourteenth Amendment is not
implicated by the lack of due care of an official causing unintended injury to life,
liberty or property.”); DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S.
189, 202 (1989) (Fourteenth Amendment Due Process Clause “does not transform
every tort committed by a state actor into a constitutional violation”).13
When, as here, a plaintiff alleges a deprivation arising from the failure to act,
authority is split on how to establish a due process violation. Under one line of
authority, applicable to plaintiffs in the government’s custody generally, a plaintiff
must first establish that officials exhibited “deliberate indifference.” See Farmer v.
Brennan, 511 U.S. 825 (1994). Under the other, applicable specifically to
involuntarily committed medical or psychiatric patients, a plaintiff must show that
the professionals entrusted with care made a decision that was “such a substantial
13 Were excessive force at issue here, the Court in Kingsley held that an official may be held liable under the Due Process Clause only where “the use of force [was] deliberate—i.e., purposeful or knowing.” 135 S. Ct. at 2472. The official’s affirmative, physical action must have been carried out deliberately, but the official need not have intended the force itself be excessive as long as the level of force was “objectively unreasonable.” Id. at 2473. At most, Kingsley stands for the proposition that excessive force can rise to a due process violation even absent any intent to inflict punishment. That, however, is not at issue here because plaintiffs allege neither an affirmative action nor that anyone intended to (or did) punish them.
Plaintiffs also cite a Second Circuit case, Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017). Leaving aside whether a plaintiff can establish a likelihood of success on the merits by pointing to an out-of-circuit legal standard, Darnell nevertheless still requires a showing that the official in question either “acted intentionally” or “recklessly failed to act with reasonable care.” Id. Either one would require a plaintiff to show more than negligence.
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departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such judgment.” Youngberg, 457 U.S. at 323. See Jordan v. District of Columbia, 161 F. Supp. 3d 45, 57 (D.D.C. 2016) (collecting cases showing split across circuits on which standard to apply). Although the D.C. Circuit has not resolved which one applies in each scenario, see Harvey v. District of Columbia, 798 F.3d 1042, 1051-52 (D.C. Cir. 2015), courts have generally applied the professional judgment standard to cases of civilly committed psychiatric patients. See, e.g., Jordan, 161 F. Supp. 3d at 58. Plaintiffs, however, cannot establish a due process violation under either standard.
1. The District Has Not Exhibited Deliberate Indifference. Of the two possible standards, deliberate indifference presents a higher bar for plaintiffs to clear. See Jordan, 161 F. Supp. 3d at 57. Deliberate indifference occurs where an official has “subjective knowledge of the plaintiff’s serious medical need and recklessly disregards the excessive risk to the plaintiff’s health or safety from that risk.” Harvey, 798 F.3d at 1052 (alterations adopted) (internal quotation marks omitted) (quoting Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003)). Deliberate indifference cannot be established by pointing to facts only known with the benefit of hindsight; the key inquiry is whether the officials in question disregarded excessive risk to the plaintiffs “at the time the decisions were made.” Kaucher v. Cnty. of Bucks, 455 F.3d 418, 428 (3d Cir. 2006); see also id. (finding no deliberate indifference toward risk of MRSA outbreak in jail where facts showed that “[w]hen defendants recognized an increased number of MRSA infections, they took
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various remedial and preventative measures, including isolating and treating infected inmates and distributing information to staff and inmates”).
The record demonstrates that the District has not recklessly disregarded any risk to the plaintiffs amid the pandemic. Saint Elizabeths began taking thorough precautions against COVID-19 as early as January 29, 2020, when the Hospital disseminated its first administrative issuance notifying staff of COVID-19. See January 29, 2020 Admin. Issuance4. The Hospital has since implemented “cohorting,” establishing separate wards for those who have tested positive, those exhibiting symptoms without yet testing positive, and all others. Tu Decl. ¶ 7; Pontes Decl. ¶ 14. Outside visitors have been significantly curtailed, and all remaining visitors, as well as all staff and contractors, get screened by having their temperature taken and filling out a questionnaire, both of which must meet specified standards before entry into the facility. Tu Decl. ¶ 14. Saint Elizabeths has hired extra cleaning contractors and has lined up extra nursing staff to ensure adequate staffing levels. Bivins Decl. ¶ 6; Pontes Decl. ¶7. Residents have access to a steady supply of soap that is checked daily so they can take proper handwashing precautions. Bivins Decl. ¶ 8; Rose Decl. [39-10] ¶ 5. As plaintiffs themselves describe, residents have access to hand sanitizer upon request. See Guzman Decl. ¶ 3; Rose Decl. ¶ 5. Residents and staff have consistent access to appropriate PPE—which plaintiffs themselves confirm. See Guzman Decl. ¶ 3a (patients in quarantine unit “were given new masks every day,” and “[a]ll staff wore masks and full protective suits”); Id. ¶ 3c (in non-quarantine unit “[i]f a patient asks for a mask, and if a mask is available, the staff will provide the
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patient with a mask,” “[a]ll staff members wear masks every day,” and “[s]ome staff members wear gowns”). Residents and staff receive education on precautions such as handwashing and social distancing. Tu Decl. ¶¶ 4-5. And staff ensure residents have ample space available to practice social distancing, even though some residents may choose not to heed this guidance. Pontes Decl. ¶ 10.
Although Saint Elizabeths has suspended group therapy and other programming normally conducted in communal spaces, it has done so based on CDC recommendations that healthcare facilities minimize opportunities for communal gathering—not out of any kind of disregard for patients’ needs. See Gontang Decl.¶ 18. The hospital has taken measures to ensure patients can continue meeting virtually with therapy providers. Gontang Decl ¶¶ 12-13. Saint Elizabeths continues to admit new patients—as required by court orders—with proper screening measures in place. Pontes Decl. ¶ 15; Candilis Decl. ¶¶ 8-9. With a current patient population of 226, and a rate of new admissions far lower than usual, hospital officials have concluded it is still safe to accept new patients who require psychiatric care and might otherwise have nowhere to receive the care they need. Gontang Decl. ¶ 5.
Saint Elizabeths has undertaken all of these measures precisely because of the serious risks posed by COVID-19. The District does not dispute that the pandemic is a serious matter. Plaintiffs’ argument instead depends on factual assertions that are simply not correct. Saint Elizabeths is not “housing symptomatic and COVID-19 positive individuals together with asymptomatic individuals,” has not “failed to isolate and quarantine individuals with the virus or suspected of having the virus,”
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and is not “failing to provide basic sanitation appropriate to the situation—in this case, ample soap and hand sanitizer, increased cleaning and disinfection of areas.” Pls.’ Mem. at 20. It is no surprise that plaintiffs provide no citations for these assertions. They are inaccurate and, as described above, contradicted by many of plaintiffs’ own proffered facts. Their lone citation for the general assertion that the District has disregarded the risks posed by COVID-19 is to the declaration of someone who claims no personal knowledge of conditions in the Hospital and who has formed her opinion based only on the allegations in plaintiffs’ Proposed Amended Complaint and declarations that are themselves not based on personal knowledge. See Pls.’ Mem. at 24 (citing Jones Decl. ¶ 16). Plaintiffs simply cannot show deliberate indifference in light of the numerous measures the District has taken. See Kaucher, 455 F.3d at 428.
Several cases plaintiffs point to as examples of deliberate indifference present circumstances not present here. In Feliciano v. Gonzales, 13 F. Supp. 2d 151 (D.P.R. 1998), for instance, the court indeed found deliberate indifference toward the unmitigated spread of various diseases in Puerto Rico prisons—but did so based on a finding that “[t]he prison system in Puerto Rico … lacks isolation facilities,” id. at 174, and based on an absence of equipment necessary to conduct screening for certain illnesses, such as X-ray machines needed to screen for tuberculosis, id. at 179. Similarly, in Joy v. Healthcare C.M.S., 534 F. Supp. 2d 482 (D. Del. 2008), the court observed that the prison medical contractor “[did] not have a policy in place to examine inmates [for disease] before placing them into general population.” Id. at
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485. As described above, however, Saint Elizabeths screens new patients and ensures that COVID-19 testing occurs consistent with CDC guidelines. See Pontes Decl. ¶ 1415. Other cases plaintiffs point to simply state—correctly—that deliberate indifference is the requisite standard for assessing an alleged due process violation and can be established by certain factual showings. See Shimon v. Dep’t of Corr. Servs. for the State of New York, Civil Action No. 93-3144, 1996 WL 15688, at *3 (S.D.N.Y. 1996) (due process liability possible “[i]f plaintiff can prove that [official] had notice of a tuberculosis ‘epidemic’ and failed, with deliberate indifference, to take appropriate actions to prevent or address the problem”); Joy, 534 F. Supp. 2d at 485 (liability possible upon showing that prison officials were “acting with deliberate indifference” when exposing prisoners to substantial risk of harm). Although true, that is not applicable given the facts here.
Plaintiffs cannot show deliberate indifference by the District and fall well short of showing a likelihood of success on the merits.
2. No Action by the District Has Departed from Accepted Professional Judgment, Practice or Standards.
Plaintiffs cannot make out a due process claim even under the lower of the two standards, the professional judgment standard. Under this rubric, in cases involving those involuntarily committed to the state’s care, due process “only requires that the courts make certain that professional judgment in fact was exercised” by appropriate staff, without mandating that any specific judgment should have been made. Youngberg, 457 U.S. at 321. “[E]vidence establishing mere departures from the applicable standard of care is insufficient to show a constitutional violation.” Patten
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v. Nichols, 274 F.3d 829, 845 (4th Cir. 2001). Rather, “decisions made by the appropriate professional are entitled a presumption of correctness unless it is established that the person responsible did not base the decision on accepted professional judgment.” Terrance v. Northville Regional Psychiatric Hosp., 286 F.3d 834, 849 (6th Cir. 2002) (citing Youngberg, 457 U.S. at 323); see also Cameron v. Tomes, 990 F.2d 14, 20 (1st Cir. 1993) (“Nothing in the Constitution mechanically gives controlling weight to one set of professional judgments.”). This deference to facility administrators is derived from the requirement that courts must “balance[] the plaintiff’s liberty interests against any relevant state interests, including fiscal constraints and administrative burdens.” LaShawn A. v. Dixon, 762 F. Supp. 959, 994 (D.D.C. 1991) (citing Youngberg, 457 U.S. at 321); see also P.C. v. McLaughlin, 913 F.2d 1033, 1043 (2d Cir. 1990) (no substantive due process violation in institutional placement of mentally disabled individual with violent history where state’s “decision was prompted by the total lack of any viable alternative, and compelled by the necessity to provide him with food, shelter, clothing and medical care”).
Plaintiffs focus on the risk COVID-19 poses in general, see Pls.’ Mem. at 2223, but do not specify any particular decisions they believe fall below Youngberg’s threshold. To establish a substantive due process violation, plaintiffs must show that a “decision by [a] professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Youngberg, 457 U.S. at 323 (emphasis added). They have not done so, and the record shows that the
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various procedures and protocols Saint Elizabeths officials have implemented in light of the pandemic have in fact been based on sound professional judgments, balancing the need to provide appropriate care with the need to protect patients from the risks of COVID-19. See LaShawn, 762 F. Supp. at 994; McLaughlin, 913 F.2d at 1043.
Plaintiffs cannot point to any decisions that were not based on a professional judgment. As described above, Saint Elizabeths has made the decisions it has made— some of them difficult—based on the need to balance competing considerations relevant to providing appropriate patient care. Even under this lower standard, plaintiffs cannot succeed on the merits of their substantive due process claim.
B. Plaintiffs Are Not Likely To Succeed on Their ADA Claim. Plaintiffs also cannot show a likelihood of success on their ADA claim. See Proposed Am. Compl. ¶¶ 225-31 (citing 42 U.S.C. § 12131). Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. A plaintiff must generally make a showing of three elements to succeed in claiming that a public entity violated the ADA: “(1) that the plaintiff is a qualified individual with a disability; (2) that the public entity denied him the benefits of or prohibited him from participating in the entity’s services, programs or activities; and (3) that denial or prohibition was ‘by reason of’ his disability.” Jackson v. District of Columbia, 826 F. Supp. 2d 109, 125-26 (D.D.C. 2011) (quoting 42 U.S.C. § 12132). An
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ADA claim generally takes one of three forms: disparate treatment, disparate impact, or failure to make a reasonable accommodation. Seth v. District of Columbia, Civil Action No. 18-1034 (BAH), 2018 WL 4682023, at *10 (D.D.C. Sept. 28, 2018). A fourth category, known as “unjustified isolation,” emerged after the Supreme Court’s decision in Olmstead v. Zimring, 527 U.S. 581 (1999). Under this theory, the ADA calls for institutionalized individuals to be placed in community settings “when (1) the State’s treatment professionals have determined that community placement is appropriate, (2) the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and (3) the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Brown v. District of Columbia, 928 F.3d 1070, 1077 (D.C. Cir. 2019) (quoting Olmstead, 527 U.S. at 587). Plaintiffs, however, cannot show a likelihood of success on the merits of their ADA claim.
1. Plaintiffs Have Not Raised a Cognizable Theory of ADA Discrimination.
Plaintiffs contend that during the COVID-19 outbreak, the District failed “to reasonably modify its system to reduce the segregation of Plaintiffs with disabilities from their communities of non-disabled peers during emergencies that threaten the physical and mental health and safety of Plaintiffs and undermine the clinical justification for such confinement.” Proposed Am. Compl. ¶ 228; Pls.’ Mem. at 25. This appears to allege an ADA claim under the theory of unjustified isolation. See Brown, 928 F.3d at 1077. But the facts on the ground do not support that theory. During the COVID-19 pandemic, Saint Elizabeths has been continually assessing patients and
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considered, among other things, which patients might be appropriately placed into community settings. Gontang Decl. ¶¶ 13-16. In fact, a number of patients have been discharged into the community since the pandemic began. Id. ¶ 13.
Plaintiffs highlight only one consideration, some confirmed cases of COVID-19 among the Saint Elizabeths patient population, in concluding that “continued segregation and institutionalization of plaintiffs is not reasonable.” Pls.’ Mem. at 25. But that is not the legal standard. Community placement is appropriate only where “the State’s treatment professionals have determined that community placement is appropriate,” “the transfer from institutional care to a less restrictive setting is not opposed by the affected individual,” and “the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Brown, 928 F.3d at 1077. Plaintiffs’ assertion that COVID-19 renders their continued hospitalization unreasonable ignores this standard, within which are embedded numerous appropriate considerations about whether community placement will in fact be in any given patient’s best interest. As the record demonstrates, Saint Elizabeths has evaluated and continues to evaluate patients for appropriate transfers to community-based placements, Gontang Decl. ¶¶ 7-9, despite ongoing limitations such as a shortage of available spots in nursing homes for elderly patients and the low availability of in-person community care, id. ¶ 16. Plaintiffs have no basis for asserting an unjustified isolation theory of ADA discrimination and cannot succeed on the merits of their claim.
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Plaintiffs’ motion does not raise the second ADA theory stated in their Proposed Amended Complaint, which alleges that the District has “discriminated against class members by repeatedly utilizing methods of administration that deprive Plaintiffs of equal access to the benefits of the mental health services provided by Defendants that other individuals in the community are receiving.” Proposed Am. Compl. ¶ 229. That theory, however, would fare no better.
Although couched as attacks on the Hospital’s “methods of administration,” these measures amount to challenges to the adequacy of services provided— grievances that are not cognizable under the ADA. The ADA does not “impose[] on the States a standard of care for whatever medical services they render,” nor does it “require[] States to provide a certain level of benefits to individuals with disabilities.” Olmstead, 527 U.S. at 603 n.14. All the ADA requires is that states “adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.” Id.
In any case, plaintiffs’ own proffered evidence alleges that even during the pandemic, plaintiffs have continued receiving many services, such as individual therapy, albeit in modified form. See Smith Decl. [39-8] ¶ 10 (Plaintiff Smith receiving teletherapy once a week). In-person services, especially those involving group gatherings, have of course been modified or suspended to facilitate social distancing. See Gontang Decl. ¶ 11. But communal gatherings, including group meetings, have been curtailed throughout the broader community—a fact true for disabled and nondisabled people alike. See, e.g., Julia Pinney, “As 12-Step Meetings Halt In Person
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Due to the Coronavirus, Recovery Goes Online,” Street Sense Media (April 16, 2020), available at https://www.streetsensemedia.org/article/12-step-meetings-coronavirusrecovery-online/#.Xp0DZZkpBPY (Alcoholics Anonymous groups no longer meeting in person in the District because of pandemic). Plaintiffs cannot succeed on an ADA claim challenging the adequacy of services where they cannot show actual discrimination. See Doe v. Pfrommer, 148 F.3d 73, 84 (2d Cir. 1998) (rejecting ADA claim where plaintiff’s challenge to state-run vocational education program for the disabled challenged “not illegal discrimination against the disabled, but the substance of the services provided to him through [the program]”); Buchanan v. Maine, 469 F.3d 158, 175 (1st Cir. 2006) (individual shot by police could not sue state under ADA despite years of state-sponsored mental health treatment where “claim was not about discriminatory denial of services, but rather about the adequacy of treatment”). This is not a cognizable ADA claim and cannot succeed on the merits.
2. Even if Their Claims Are Otherwise Cognizable, Plaintiffs Have Not Shown a Deprivation “By Reason Of” Their Disabilities.
An ADA plaintiff must show “sufficient facts to establish that the complainedof discrimination was due to his disability.” Seth, 2018 WL 4682023, at *11 (internal quotation marks omitted) (quoting Howell v. Gray, 843 F. Supp. 2d 49, 59 (D.D.C. 2012)). It is a plaintiff’s burden to allege “that the disability actually played a role in the decision making process and had a determinative influence on the outcome.” Id. (internal quotation marks omitted). Simply put, the plaintiff must “show that the complained-of discrimination was based on, or based solely on, [the plaintiff’s] disability.” Id.
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Regardless of the services Saint Elizabeths has had to modify during the pandemic, plaintiffs cannot show that the District deprived them of anything “by reason of” their disabilities. Plaintiffs’ own allegations make clear that all relevant actions taken by Saint Elizabeths were implemented as reasonable responses to an emergency situation. Plaintiffs have not shown any other plausible reason for the measures imposed. Nothing in the record or even alleged in the Proposed Amended Complaint suggests that the District took the actions it did because of plaintiffs’ disabilities.
C. Plaintiffs Have Not Argued They Are Likely To Succeed on Their Claims Based on Any Facts About the Fall 2019 Water Outage.
As noted above, the legal claims laid out in plaintiffs’ Proposed Amended Complaint allege actions from two separate events: the COVID-19 pandemic, and a temporary water outage that occurred in the Fall of 2019. See Proposed Am. Compl. In their motion for a TRO, however, plaintiffs argue they are likely to succeed on the merits only based on the events of the pandemic. See generally Pls.’ Mem. They do not include any arguments or factual proffers about the water outage. Without raising any arguments about these events, plaintiffs cannot show they are likely to succeed on the merits based on any facts relating to the water outage. III. The Balance of Equities and Public Interest Counsel Against the Preliminary
Relief at Issue. Even if plaintiffs could show a likelihood of success on the merits and that irreparable harm would result without a TRO, they must additionally show both that “the balance of equities tips in their favor,” and that “an injunction is in the public
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interest.” Sherley, 644 F.3d at 392; In re Navy Chaplaincy, 738 F.3d at 428 (plaintiffs cannot use strong showing on some factors to make up for weak showing on others). These two factors “merge when the Government is the opposing party” and are thus analyzed together. Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 10 (D.C. Cir. 2019) (citation and internal quotation marks omitted). “[W]here the Court has a less intrusive means” of ensuring legal compliance, “the public interest would weigh towards choosing such options, especially where … the plaintiffs seek a mandatory (‘do this’) rather than prohibitory (‘don’t do this’) injunction.” Garnett v. Zeilinger, 313 F. Supp. 3d 147, 160 (D.D.C. 2018).
Because Saint Elizabeths is already doing most of what plaintiffs seek from a TRO, the only question is whether the balance of the equities and the public interest favor the remaining two items: ceasing all admissions of new patients, and providing the Court and plaintiffs’ counsel “with daily reports to ensure that the measures laid out in the Court’s order are being followed.” Pls.’ Proposed Order ¶¶ 1, 10. As discussed above, the screening and isolation measures the Hospital has imposed adequately mitigate the risks of continuing new admission, especially at their slow pace. Candilis Decl. ¶¶ 7-9; Pontes Decl. ¶ 15. In any case, ceasing admissions— assuming Saint Elizabeths could do this—would not be in the public interest. The Hospital already limits admissions to court-ordered pretrial defendants and only those civil commitments that are medically necessary and where no less restrictive treatment option is available. Candilis Decl. ¶ 5. Courts commit individuals to Saint Elizabeths to receive care they likely could not receive anywhere other than a public
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hospital dedicated to the intensive care of those with psychological disabilities. See Gontang Decl. ¶ 5. Denying these individuals admission would force them either to stay at home—for those who have homes—without any care, or to be placed into another kind of facility such as an acute care hospital. As plaintiffs themselves observe, hospitals and other healthcare facilities face a crisis of capacity trying to treat an influx of COVID-19 patients. See Pls.’ Mem. at 10. In addition, those who would otherwise be placed into Saint Elizabeths pre-trial might instead be put in jail where the resources do not exist to provide the same level of psychiatric care Saint Elizabeths provides. Neither of these alternatives would be in the public interest and weigh decidedly against an order halting all new patient admissions.
The same is true for the detailed reporting requirement plaintiffs propose. There is a well-established public interest in permitting the government to carry out its authorized functions where doing otherwise would needlessly upend its operations. See Benisek v. Lamone, 138 S. Ct. 1942, 1945 (2018) (finding lower court could have reasonably concluded that ordering redrawing of electoral district map would have contravened public interest where “injunction might have worked a needlessly chaotic and disruptive effect upon the electoral process” (citation and internal quotation marks omitted)); Garnett, 313 F. Supp. 3d at 160 (public interest “would disfavor the Court’s interference” in legal process of administering food stamp benefits “in light of [federal agency’s] expertise and role” in carrying it out). This is especially true for a public hospital attempting to adjust its patient care to fluid public health guidance amid an ongoing pandemic. In addition to being unnecessary,
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imposing onerous reporting requirements would require Saint Elizabeths to divert

significant resources away from patient care and ensuring the general functioning of

the hospital.

The balance of the equities and the public interest weigh in the District’s favor

and counsel against granting a TRO.

CONCLUSION

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

temporary restraining order.

Dated: April 21, 2020.

Respectfully submitted,

KARL A. RACINE Attorney General for the District of Columbia

TONI MICHELLE JACKSON Deputy Attorney General Public Interest Division

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

/s/ Micah Bluming__ MICAH BLUMING [1618961] HONEY MORTON [1019878] Assistant Attorneys General 441 Fourth Street, N.W., Suite 630 South Washington, D.C. 20001 (202) 724-7272 (Phone) (202) 730-1833 (Fax) micah.bluming@dc.gov honey.morton@dc.gov

Counsel for Defendants

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EXHIBIT 1

Case 1:19-cv-03185-RDM Document 42-1 Filed 04/21/20 Page 2 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENZO COSTA, et al., Plaintiffs,
v. BARBARA BAZRON, et al.,
Defendants.

Civil Action No. 19-3185 (RDM)

DECLARATION OF PHILIP CANDILIS, MD I, Philip Candilis, MD, declare and state as follows: 1. I am over the age of eighteen (18) years, competent to testify to the matters contained in this declaration, and testify based on my personal knowledge acquired in the course of my official duties. 2. I am the Director of Medical Affairs for Saint Elizabeths Hospital, the District of Columbia’s only public psychiatric facility for individuals with serious and persistent mental illness requiring intensive inpatient care to support their recovery. Saint Elizabeths is overseen by the District of Columbia Department of Behavioral Health (DBH). 3. I have worked at Saint Elizabeths Hospital since 2014. As a life-long public sector physician, I have served in a variety of roles, including Director of the Forensic Psychiatry Fellowship here at Saint Elizabeths, the program providing advanced training for physicians in psychiatry and the law. I assumed the role of Director of Medical Affairs in late October 2017. I am Professor of Psychiatry at

Case 1:19-cv-03185-RDM Document 42-1 Filed 04/21/20 Page 3 of 5
George Washington University School of Medicine, Clinical Professor of Psychiatry at Howard University College of Medicine, and Adjunct Professor of Psychiatry at the Uniformed Services University of Health Sciences. I also serve as President of the Washington Psychiatric Society. I am board-certified in both general and forensic psychiatry, have practiced psychiatry for over 25 years, and have had my work published extensively in a number of academic journals and texts.
4. As Director of Medical Affairs at Saint Elizabeths, I oversee medical and psychiatric care and am familiar with the Hospital’s daily operations, including measures that protect patients and staff from COVID-19.
5. Saint Elizabeths Hospital’s policy generally limits admissions to courtordered pre-trial individuals and only those referred through the civil commitment process for whom (1) admission to the Hospital is medically necessary, and (2) no less restrictive treatment option is available. The Hospital rigorously screens all new patients to prevent the introduction of a positive COVID-19 patient from outside the hospital.
6. Patients admitted to Saint Elizabeths fall into three categories: pretrial patients, post-trial patients deemed not guilty by reason of insanity (NGBRI), and civilly committed patients. Pre-trial and post-trial patients are often referred to as “forensic patients” because they are admitted by order of the D.C. Superior Court through criminal justice matters. Civilly committed patients are individuals hospitalized under D.C. Code § 21-501, et seq. upon being deemed a danger to themselves or others as a result of mental illness. The Hospital’s current screening
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procedures for new admission vary depending on the category of patient being admitted because each presents different risks for COVID-19 exposure.
7. Since March 11, 2020, the Hospital has admitted three (3) civilly committed patients, compared to an average 6-7 patients per month pre-COVID-19.
8. The civil admission process includes robust screening measures. Civil patients are rarely admitted directly from the community. Rather, a civilly committed patient will normally receive treatment first at a local emergency room or the Department of Behavioral Health Comprehensive Psychiatric Emergency Program (CPEP) for one or two days and then transfer to a local area hospital for continued acute psychiatric treatment. After 14 days that include medical monitoring and treatment, the hospital treating the patient may request a transfer to Saint Elizabeths Hospital. This occurs only in rare cases as most patients can be discharged directly back into the community.
9. Since the COVID-19 pandemic began, I have been personally involved in the screening of civil admissions to ensure that patients have been properly screened at the local hospital, are asymptotic for COVID-19 and not experiencing respiratory symptoms. I make this assessment by speaking with the patient’s treating physician. If the patient is symptomatic, the Hospital will decline the referral. In addition, before any patient is admitted, a Saint Elizabeths general medical officer or nurse practitioner conducts a thorough assessment to screen for any possible COVID-19 symptoms. The Hospital will follow this protocol for all subsequent requests for civil admissions from acute care hospitals during COVID-19.
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I declare under the penalty of perjury that the foregoing is true and correct to the best of my knowledge, information, and belief.

____April 21, 2020_______ DATED

Philip J. Candilis, MD, DFAPA Director of Medical Affairs Professor of Psychiatry, George Washington University School of Medicine President, Washington Psychiatric Society

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EXHIBIT 2

Case 1:19-cv-03185-RDM Document 42-2 Filed 04/21/20 Page 2 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENZO COSTA, et al., Plaintiffs,
v. BARBARA BAZRON, et al.,
Defendants.

Civil Action No. 19-3185 (RDM)

DECLARATION OF RICHARD GONTANG, PH.D I, Richard Gontang, Ph.D, declare and state as follows: 1. I am over the age of eighteen (18) years, competent to testify to the matters contained in this declaration, and testify based on my personal knowledge acquired in the course of my official duties. 2. I am the Chief Clinical Officer for Saint Elizabeths Hospital (Saint Elizabeths), the District of Columbia’s only public psychiatric facility for individuals with serious and persistent mental illness requiring intensive inpatient care to support their recovery. Saint Elizabeths is overseen by the District of Columbia Department of Behavioral Health (DBH). 3. I have worked at Saint Elizabeths Hospital since March 2008. I have served in a variety of roles at Saint Elizabeths, including Director of Psychology Training and Director of Psychology. I assumed the role of Chief Clinical Officer in April of 2016.

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4. As the Chief Clinical Officer, I am in charge of the non-medical and nonnursing clinical disciplines at Saint Elizabeths, including psychology, social work, rehabilitation services, clinical administrators, volunteer services, and the Therapeutic Learning Centers. Through my position, I am aware of Saint Elizabeths Hospital operations on a daily basis to protect patients and staff from COVID-19.
5. Saint Elizabeths is unique among healthcare facilities in that it is foremost a psychiatric treatment facility but also houses pre- and post-trial patients and shares similarities with long-term care nursing facilities. The Hospital provides critical services to some of the District’s most vulnerable residents, and the need for these services has not stopped during the current public health emergency. The Hospital has implemented thorough screening procedures to allow for the continued admission of a limited number of new patients during the pandemic, while also protecting the patients already in its care.
6. Saint Elizabeths Hospital has the capacity to house 292 patients. PreCOVID-19, the Hospital’s population census averaged 275 patients. On February 1, 2020, the Hospital census was 277. Since the COVID-19 outbreak, the Hospital has substantially reduced its census. As of April 21, 2020, the Hospital census is 221. Each unit at the Hospital generally houses no more than 27 patients, and has bedrooms, common living areas, bathrooms and showering facilities, and dining areas.
7. For patients currently in Saint Elizabeths’ care, the Hospital has always maintained an individualized assessment on all patients to identify potential
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for treatment in the least restrictive environment. This is a core function of the Hospital’s Department of Social Work. During the COVID-19 pandemic, the Hospital has individually assessed each patient to determine whether the patient can be safely discharged from the Hospital. The Hospital’s authority to discharge patients depends upon their category. Pre-trial and post-trial patients are referred by the D.C. Superior Court amid ongoing criminal proceedings. In response to a motion filed in Superior Court, Saint Elizabeths completed individual evaluations of all pretrial forensic patients charged with misdemeanors and made recommendations to the court. Since March 1, 2020, the D.C. Superior Court has ordered 39 pretrial patients released from the Hospital. The D.C. Superior Court ordered 5 patients discharged on April 15, 2020, and 9 on April 17, 2020, and continues to hear individual motions from pretrial patients for release.
8. Saint Elizabeths has also completed individual assessments for posttrial patients, individuals who were found Not Guilty By Reason of Insanity (NGBRI) and committed to the Hospital by court order. By law, the Hospital is required to consider public safety and the risk of dangerousness and recidivism in evaluating NGBRI patients for community release. The Hospital has evaluated all NGBRI patients for discharge, including the named plaintiffs in this case.
9. Civilly committed patients are those hospitalized after being deemed a danger to themselves or others as a result of mental illness. We have completed individualized assessments for all civilly committed patients.
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10. A patient’s ability to safely live in the community remains a longstanding challenge to discharging. Many of our patients do not have secure housing available to them. Options such as homeless shelters lack adequate services and supports for our patients and may lead to a return to inpatient setting. Successful community discharge generally requires close coordination with a community-based mental health provider called a Core Services Agency, or CSA. CSAs typically provide in-home services, but this is difficult to provide if the discharged patient lacks safe and stable housing. An additional concern is that the threat of COVID-19 is prevalent in the community as well. For example, a patient residing in a group home risks exposure to asymptomatic roommates, guardians, and others that are free to travel in and out of the home creating risk of exposure. A vulnerable patient that does not have the mental capacity to adhere to social distancing, cough etiquette, hand washing, and other COVID-19 precautions in the community may not be any safer when compared to the Hospital, with ready access to mental health, medical and nursing care.
11. Some of our mental health treatment has been modified because of the pandemic. All group therapy has been suspended because of CDC guidance on minimizing group interactions. However, group therapy is just one method of delivering one aspect of mental health treatment in the Hospital. Every patient has a treatment team that consists of a clinical administrator that is responsible for coordinating all care, a psychiatrist responsible for psychiatric treatment and medications, a social worker responsible for discharge planning, and a registered
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nurse responsible for daily nursing care. In addition, each unit has a general medical officer or nurse practitioner for medical issues and a psychologist for psychological services. Individual patients may also have other individual needs, such as rehabilitation, interpreter services (both in-person and remote), neurology, and access to external medical care. The Hospital has a neurology department with an on-site neurologist who provides services to patients that require that level of care. While groups are temporarily suspended, all patients continue to receive appropriate and individualized psychiatric treatment, including medications, medical, nursing, and social work services, and any other specialty services that they require.
12. The Hospital has provided WebEx accounts for staff to conduct individual telehealth consultations with patients for those that require individual one-to-one therapy. Each patient unit has a shared computer, cleaned and sanitized regularly, that is dedicated to this purpose. Saint Elizabeths Hospital is monitoring patients to ensure this change does not negatively affect patients’ psychological stability.
13. In the last 30 days, the Hospital has used its telehealth technology to conduct treatment planning meetings, individual therapy, discharge planning meetings, legal visits and court appearances for Mental Observation and Mental Health Commission hearings. To increase its telehealth capacity, on April 17, 2020, the Hospital received 14 more devices that will be used for telehealth.
14. In the last 30 days, there has been a documented reduction in aggressive and assaultive behavior among patients at Saint Elizabeths. Prior to COVID-19, the
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hospital averaged 43 unusual incidents of physical assault and 69 unusual incidents of aggressive behavior by patients. Since mid-March, the Hospital reported 24 unusual incidents involving physical assault and 63 unusual incidents of aggressive behavior.
I declare under the penalty of perjury that the foregoing is true and correct to the best of my knowledge, information, and belief.

___4_/_42_1_//_22__1_/_2__0__2__0______
DA0TED

____________________________________ RICHARD GONTANG, PH.D

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ATTACHMENT 1

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 Case 1:19-cv-03185-RDM Document 48 Filed 04/22/20 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENZO COSTA, et al., Plaintiffs,
v. BARBARA J. BAZRON, et al.,
Defendants.

Civil Action No. 19-3185 (RDM)

MEMORANDUM OPINION AND ORDER This matter is before the Court on the Plaintiffs’ emergency motion for leave to file an amended complaint. Dkt. 36. Defendants oppose this motion. For the reasons explained below, the Court will grant Plaintiffs’ motion.
I. BACKGROUND Plaintiffs, Enzo Costa, Vinitia Smith, and William Dunbar, are three patients who are indefinitely and involuntarily civilly committed to the District’s care and housed at Saint Elizabeths Hospital. Dkt. 36-1 at 6–7 (Am. Compl. ¶¶ 19–22). Plaintiffs originally brought this putative class action in October 2019, asserting due process and Americans with Disability Act (“ADA”), 42 U.S.C. §12131 et seq., claims relating to a September 2019 water outage at Saint Elizabeths that interrupted plaintiffs’ recommended therapy and subjected them to allegedly unhealthy conditions for a period of 28 days. Dkt. 1. After Defendants moved to dismiss the complaint on mootness and standing grounds, Dkt. 21, the Court granted Plaintiffs the opportunity to conduct jurisdictional discovery and held that motion in abeyance until the completion of that discovery, see Minute Entry (Jan. 22, 2020); Minute Order (Jan. 10, 2020). Jurisdictional discovery is not yet complete. See Dkt. 36 at 2.

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On April 16, 2020, Plaintiffs filed an emergency motion seeking leave to amend their complaint to add allegations regarding the ongoing COVID-19 crisis at Saint Elizabeths. See id. at 3–4 (Proposed Am. Compl. ¶¶ 3–7); Dkt. 36 at 1. The proposed amended complaint alleges that, like Defendants’ response to the water outage, they have fallen short of their obligation to ensure that Plaintiffs and other patients at the hospital continue to receive mental health treatment and are held in humane conditions. Dkt. 36-1. Defendants oppose the motion. Dkt. 40.
II. ANALYSIS Although Plaintiffs seek leave to amend their complaint under Rule 15(a)(2), Dkt. 36, the Court will construe the pleading as a motion to file a supplemental complaint pursuant to Rule 15(d), see Hall v. C.I.A., 437 F.3d 94, 100 (D.C. Cir. 2006) (new allegations relating to matters that occurred prior to the filing of the original pleading constitute amendments, whereas new allegations relating to matters that occurred after filing constitute supplements). This difference is immaterial, however, because “[m]otions to amend under Rule 15(a) and motions to supplement under Rule 15(d) are,” in the main, “subject to the same standard.” Wildearth Guardians v. Kempthorne, 592 F. Supp. 2d 18, 23 (D.D.C. 2008); cf. Clean Water Action v. Pruitt, 315 F. Supp. 3d 72, 79 (D.D.C. 2018) (observing that, although the Rule 15(d) and Rule 15(a)(2) standards overlap, they are not identical, but not proceeding to analyze “the precise differences between the two standards” because the case fell within the overlap). Under Rule 15(d), a “court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). The decision to grant a motion for leave to file a supplemental pleading is “within the discretion of the district court,” Xingru Lin v. District
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of Columbia, 319 F.R.D. 1, 1 (D.D.C. 2016), and should be “freely granted when doing so will promote the economic and speedy disposition of the entire controversy between the parties, will not cause undue delay or trial inconvenience, and will not prejudice the rights of any of the other parties to the action,” Hall, 437 F.3d at 101. “In the last analysis, a district court faced with a Rule 15(d) motion must weigh the totality of the circumstances, just as it would under Rule 15(a).” States ex rel. Gadbois v. PharMerica Corp., 809 F.3d 1, 7 (1st Cir. 2015).
Here, Plaintiffs seek to add allegations and claims arising from Defendants’ response to the ongoing COVID-19 pandemic. Because this case is still at an early stage, Plaintiffs’ new claims raise pressing issues relating to health and safety, and Plaintiffs’ original claims and those that they seek to add all challenge the Hospital’s failure to protect the well-being of its patients in response to public health crises, the Court concludes that “the totality of the circumstances” tip decidedly in favor of permitting supplementation of the complaint.
Most importantly, because the proposed supplemental pleading pertains to exigent and potentially life-threatening circumstances, Plaintiffs—and not Defendants—would be prejudiced, in a very real way, if the Court were to reject their motion. Were the Court to deny the motion, Plaintiffs would be required to file a new complaint and would then have to wait as the new case is assigned, the new judge becomes familiar with the case, and a new briefing schedule is set. In ordinary circumstances, that lost time might be insignificant; but here, where time is of the essence, it imposes a significant cost. In general, courts must construe, administer, and employ the Federal Rules of Civil Procedure “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. Court must also, in general, provide litigants with “every opportunity to join in one lawsuit all grievances against another party regardless of when they arose.” Wright & Miller, Federal Practice & Procedure § 1506 (3d ed.). Here, the
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interest in efficiency goes beyond conserving judicial resources and promoting fairness; it is necessary to protect the very safety and health interests the suit seeks to vindicate.
None of Defendants arguments in opposition is persuasive. First, they contend that the new allegations “radically alter the scope and nature of the case” and, in support, point to Pinson v. Dep’t of Justice, 246 F. Supp. 3d 211 (D.D.C. 2017). But Pinson involved a very different scenario. There, after four years of litigation, the plaintiff sought to add claims against new defendants for a different type of injury that was unconnected to the existing claims. See id. at 231. Here, Plaintiffs’ proposed supplemental complaint involves the same parties, the same legal claims, the same general types of relief sought, and similar types of alleged injuries. Of course, claims raised in a supplemental pleading should generally relate to the original complaint, and, if the supplemental pleading raises new claims, that is a factor that the Court should consider along with all other relevant factors. See Keith v. Volpe, 858 F.2d 467, 474 (9th Cir. 1988) (quoting 3 J. Moore, Moore’s Federal Practice para. 15.16[3] (1985)). But here, this factor is, at best, neutral. Although Plaintiffs’ new claims arise from distinct factual premises, they are connected to the original claims by a common thread—both arise from Defendants’ alleged failure to plan and adequately to respond to events that endanger Plaintiffs’ safety and well-being while held at the Hospital.
Defendants reliance on Caton v. Barry, 500 F. Supp. 45 (D.D.C. 1980), is also misplaced. In Canton, the motion to amend was filed after the court had already “fully resolved” the original claims. Id. at 54. Here, in contrast, the proceeding has not advanced beyond the pleading stage. Cf. AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 725 (2d Cir. 2010) (“In determining what constitutes ‘prejudice,’ courts consider whether the assertion of the new claim would, among other things, require defendant to expend significant additional resources to
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conduct discovery and prepare for trial or significantly delay the resolution of the dispute.”). As Plaintiffs correctly note, see Dkt. 41 at 4–5, litigating COVID-19-related issues in this suit would not be more burdensome, and might be less burdensome, than litigating the same issues in a separate case. Nor did Plaintiffs delay in filing their emergency motion for leave to amend; they sought leave to amend within days of learning about Defendants’ allegedly deficient COVID-19 response. Even assuming that Defendants would suffer some prejudice from granting the motion, moreover, any such prejudice is more than offset by Plaintiffs’ substantial interest in the expeditious adjudication of their motion for a preliminary injunction. Finally, Defendants suggest that the motion should be denied because the underlying suit is meritless. See Dkt. 40 at 7. Jurisdictional discovery is not yet complete with respect to those claims, however, and it is premature to ask the Court to pass on a question that remains subject to discovery and briefing. Even if the original water outage claims may not succeed, moreover, that is no reason to “needlessly remit[] [Plaintiffs] to the difficulties of commencing a new action.” Fed. R. Civ. P. 15(d), advisory committee note of 1963.
CONCLUSION For the reasons explained above, it is hereby ORDERED that Plaintiffs’ motion to supplement their complaint, Dkt. 36, is GRANTED, and Plaintiffs’ supplemental pleading, Dkt. 361, is deemed filed. SO ORDERED.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge
Date: April 22, 2020
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 Case 1:19-cv-03185-RDM Document 50 Filed 04/22/20 Page 1 of 53

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENZO COSTA Saint Elizabeths Hospital 1100 Alabama Avenue SE Washington, DC 20032

VINITA SMITH Saint Elizabeths Hospital 1100 Alabama Avenue SE Washington, DC 20032

WILLIAM DUNBAR Saint Elizabeths Hospital 1100 Alabama Avenue SE Washington, DC 20032

No. 1:19- cv-3185 (RDM)

STEFON KIRKPATRICK Saint Elizabeths Hospital 1100 Alabama Avenue SE Washington, DC 20032
on behalf of themselves and all persons similarly situated,

Plaintiffs-Petitioners, v.

BARBARA J. BAZRON, Director Department of Behavioral Health in her individual capacity 64 New York Avenue, NE - 3rd Floor Washington, DC 20002

MARK J. CHASTANG, Chief Executive Officer, Saint Elizabeths Hospital in his official and individual capacity 1100 Alabama Avenue, SE Washington, DC 20032

DISTRICT OF COLUMBIA c/o Attorney General of the District of Columbia 441 4th Street, NW Washington, DC 20001,

Defendants-Respondents.

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FIRST AMENDED CLASS ACTION COMPLAINT AND PETITION FOR WRIT OF HABEAS CORPUS
(For declaratory and injunctive relief—unconstitutional conditions at Saint Elizabeths Hospital) Introduction
For the third time in recent years, the District of Columbia’s Department of Behavioral Health has failed to protect the health of the vulnerable patients entrusted to its care at Saint Elizabeths Hospital, the District’s public psychiatric hospital, in light of recognized and life-threatening dangers. Indeed, four St. Elizabeths patients have died of COVID-19 as of April 15, 2020.
COVID-19, a highly communicable and potentially fatal virus, is spreading rapidly around the world, in the United States, and in the District of Columbia. As of April 15, 2020, there were 605,390 cases and over 24,000 deaths attributable to COVID-19 reported in the United States.1 The District of Columbia has reported 2,350 cases of COVID-19 and at least 81 deaths, as of April 15, 2020.2 The World Health Organization (“WHO”) estimates that as of April 15, 2020, there ae 1,991,562 confirmed cases, 130,885 confirmed deaths, and 213 countries, areas, or territories with confirmed cases.3
1 CTRS. DISEASE CONTROL & PREVENTION, Cases in the U.S. https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited April 16, 2020). 2 GOV’T. D.C., Coronavirus Data, https://coronavirus.dc.gov/page/coronavirus-data (last visited April 16, 2020). 3 See WORLD HEALTH ORG., Coronavirus disease (COVID-19) Pandemic, https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last visited April 16, 2020),

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The virus is also spreading rapidly among patients at Saint Elizabeths Hospital. As of April 1, 2020, there were 5 positive cases of COVID-19 among Saint Elizabeths Hospital staff and 1 positive case among patients. By April 16, 2020, the Department of Behavioral Health reported that four Saint Elizabeths Hospital patients have died of coronavirus, and 32 patients and 47 staff at the Hospital have tested positive for COVID-19.
Patients at Saint Elizabeths Hospital are at a heightened risk of contracting, and are, in fact, dying from COVID-19 because of Defendants’ failure to follow professional guidance and appropriately plan and manage the facility during this global pandemic.
Despite clear guidance from the Centers for Disease Control (CDC), the D.C. Department of Health, and the Mayor’s orders, Defendants-respondents (hereafter simply “Defendants”) are not ensuring that patients at Saint Elizabeths Hospital are properly protected from the risk of contracting COVID-19. Specifically:
• Patients at Saint Elizabeths Hospital are unable to properly practice social distancing.
• Symptomatic patients are not tested at all, or not tested in a timely matter. • Symptomatic patients are not medically isolated from other patients who reside in
their Unit. • Known or suspected cases of COVID-19 have generally not been transferred to
other facilities where they can receive appropriate treatment. • Patients who test positive for COVID-19 are not quarantined from other patients. • The Hospital has continued to be open for new admittances.
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Defendants’ lack of emergency planning and poor crisis management has caused the rapid and deadly spread of COVID-19 at Saint Elizabeths Hospital.
This is not the first time that Defendants’ lack of emergency planning and poor crisis management also placed hundreds of patients at risk. As recently as October 2019, Defendants discovered that the Saint Elizabeths Hospital water supply was toxic and shut off the water to the Hospital for 28 days.
Plaintiffs-petitioners (hereafter simply “Plaintiffs”) Enzo Costa, Vinita Smith, Stefon Kirkpatrick, and William Dunbar are four of approximately 270 patients with mental health disabilities at Saint Elizabeths Hospital who were left without safe, running water from September 26, 2019 to October 24, 2019 and thereby exposed to irreparable harmful physical, emotional, and mental health consequences. They still reside there and now face the threat of contracting COVID-19 as a consequence of Defendants’ failure to take appropriate precautionary measures.
The 2019 water outage was the second time in three years that Saint Elizabeths Hospital experienced a major and extended water outage.
The extended water outage directly impacted necessary patient medical care. Defendants closed the Treatment Mall, the location at the Hospital where treatment planning meetings are held and patients receive group therapy, art therapy, and music therapy, and they curtailed or suspended a wide variety of therapy and other forms of psychiatric care on which Plaintiffs and members of the class depend and need to manage and maintain their mental health. Patients were confined to their units and their rooms and were unable to attend regularly scheduled therapy. Patients could not access other forms of routine medical care.
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Unhygienic conditions were pervasive to the point where they endangered patient health. As a result of the extended water crisis, patients at Saint Elizabeths Hospital, all of whom are committed to the District’s care and custody, endured inhumane, unsafe, and medically dangerous conditions that risked their health, mental health, and safety. Patients could not shower, wash their hands, or use the toilets regularly. Fecal matter, urine, and menstrual blood accumulated in the bathrooms. Patients were only allowed to shower on a limited schedule outside in dirty and portable showers which were inaccessible to the many patients with mobility disabilities.
Despite the fact that there was no safe, running water in September and October of 2019, Defendants continued to admit new patients to Saint Elizabeths Hospital and to keep patients at Saint Elizabeths Hospital rather than transferring them to other appropriate facilities or discharging them to community-based care where appropriate. Defendants did not provide appropriate care and safety for Plaintiffs and other similarly situated patients in violation their due process rights and rights under federal law. Defendant’s conduct in continuing to commit Plaintiffs to a facility with no safe, running, water is so egregious as to shock the conscience.
The original Class Action Complaint filed in this action challenged the Defendants’ failure during the October 2019 extended water crisis to provide adequate protections for patients.
Although Defendants turned the water back on in October 2019, they have not only failed to take adequate steps to avoid another predictable health crisis but have yet again fostered conditions to exacerbate the dangers to patients in their care.
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Defendants’ conduct in admitting new patients, failing to properly test or isolate symptomatic and exposed patients, failing to quarantine patients with COVID-19, and failing to take other medically necessary precautionary measures is so egregious as to shock the conscience.
Subject Matter Jurisdiction & Venue The Court has subject matter jurisdiction over this case under 28 U.S.C. §§ 1331 and 1343 because this action presents federal questions and seeks to redress the deprivation of rights under the Fifth Amendment to the U.S. Constitution, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2241. Venue is proper in this District under 28 U.S.C. §1 391(b)(2) because all of the events giving rise to the claims took place in this District. Declaratory relief is authorized by 28 U.S.C. § 2201. A declaration of law is necessary and appropriate to determine the parties’ respective rights and duties. Injunctive relief is authorized by 28 U.S.C. § 2202.
Parties Enzo Costa is thirty-eight years old and is a patient at Saint Elizabeths Hospital in Unit 1C. He is diagnosed with schizophrenia, dystonia, schizo-affective disorder, and anti-social personality disorder. He is indefinitely, involuntarily civilly committed to the District’s care. Vinita Smith is a fifty-seven years old and is a patient at Saint Elizabeths Hospital in Unit 1F. She is diagnosed with schizo-affective disorder that requires medication and therapy. She is indefinitely, involuntarily civilly committed to the District’s care. Stefon Kirkpatrick is thirty years old and is a patient at Saint Elizabeths Hospital in Unit 2C. He is diagnosed with psychosis disorder. Mr. Kirkpatrick has displayed
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symptoms of COVID-19 infection, but his request to be tested was denied and he has not been medically isolated. He is indefinitely, involuntarily civilly committed to the District’s care.
William Dunbar is thirty-one year old and is a patient at Saint Elizabeths Hospital in Unit 2A. He is diagnosed with paranoia schizophrenia. He is indefinitely, involuntarily civilly committed to the District’s care.
Plaintiffs bring this action for class-wide injunctive relief and for a classwide writ of habeas corpus on behalf of themselves and other similarly situated patients at Saint Elizabeths Hospital.
The named Plaintiffs and the members of the Plaintiff Class are persons with a disability or perceived to have a disability, as that term is defined in the Americans with Disabilities Act (“ADA”), and are entitled to the protections of the ADA. 42 U.S.C. §12102(2)(A).
Defendant District of Columbia (“the District”) owns and operates Saint Elizabeths Hospital, and is responsible for the services and supports provided to patients at Saint Elizabeths Hospital. Saint Elizabeths Hospital is the District’s only public psychiatric facility for individuals with serious and persistent mental illness who need intensive inpatient care to support their recovery. Saint Elizabeths Hospital also provides mental health evaluations and care to patients committed by the courts.
The District of Columbia is a public entity as that term is defined in the ADA. 42 U.S.C. § 12131(1).
Defendant Barbara Bazron is the Director of the Department of Behavioral Health, the District agency that oversees Saint Elizabeth. She is sued in her individual capacity.
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Defendant Mark Chastang is the Chief Executive Officer of Saint Elizabeths Hospital. He is sued in his individual and official capacity.
Mark Chastang is Plaintiffs’ immediate custodian, exercising day-to-day control over Plaintiffs’ physical custody.
Statement of Facts Saint Elizabeths Hospital Saint Elizabeths Hospital is the District’s public psychiatric facility and serves individuals with mental illness who need intensive inpatient care. Saint Elizabeths Hospital is the District’s only public psychiatric facility for individuals with serious and persistent mental illness who need intensive inpatient care to support their recovery. Saint Elizabeths Hospital also provides mental health evaluations and care to patients committed by the courts. Patients at Saint Elizabeths Hospital are entitled to a dignified, respectful and supportive environment and generally accepted standards of individualized treatment, continuity of care, professionalism, and health and safety. Saint Elizabeths Hospital has an average of 270 patients per day and approximately 700 employees. On April 14, 2020, the patient population was 237. Saint Elizabeths Hospital patients are housed in one of 11 units, or houses. The units consist of bedrooms and common spaces. Some of the bedrooms are single occupancy and some of the bedrooms are double occupancy. Saint Elizabeths Hospital patients are committed to the care of the District. Patients may be committed in one of three ways. Patients may have civil legal status, meaning that they are committed voluntarily, or may be civilly committed, or may be committed on an emergency basis. Patients may also be committed after being adjudicated in criminal court as
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not guilty by reason of insanity (“NGI”). Patients may also be committed to Saint Elizabeth’s for forensic reasons, because they are awaiting a hearing to determine their competency to stand trial or to have their competency restored. Patients may be transferred from DC correctional facilities or other area hospitals.
Defendants have the authority to release any patients who are civilly committed or who are committed to the Hospital voluntarily.
Defendants have the authority to evaluate and recommend release or continued commitment for patients who are criminally committed or who are committed because of their NGI status.
The 2020 COVID-19 Pandemic COVID-19 is the disease caused by the SARS-CoV-2 virus that has caused a global pandemic. The CDC estimates that as of April 15, 2020, there are 605,390 confirmed cases and 24,282 confirmed deaths in all 50 states, the District of Columbia, Guam, Puerto Rico, the Northern Mariana Islands, and the U.S. Virgin Islands.4 COVID-19 is highly contagious. COVID-19 is thought to survive for three hours in the air in droplet form that can be inhaled or transferred to surfaces, up to twenty-four hours on cardboard, up to two to three days on plastic and steel.5
4 CTRS. DISEASE CONTROL & PREVENTION, Cases in U.S., https://www.cdc.gov/coronavirus/2019ncov/cases-updates/cases-in-us.html. (last visited April 16, 2020). 5 Neeltje van Doremalen et al., Correspondence, Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1, NEW ENGLAND J. MEDICINE, March 17, 2020, https://www.nejm.org/doi/full/10.1056/NEJMc2004973.
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Due to the highly contagious nature of COVID-19, data and statistical modeling show that absent intervention, the rate of COVID-19 infections has grown exponentially.6
People in all age brackets are at risk of serious illness and death from COVID-19.7
Although only about “one person in six becomes seriously ill” from COVID-19, the virus causes excruciating pain to those who become seriously ill. One respiratory physician explained that the lungs “become filled with inflammatory material” and “are unable to get enough oxygen to the bloodstream.”8
The virus leads to acute respiratory distress syndrome, in which fluid displaces the air in the lungs. The sensation of that illness is akin to being drowned.9 In more serious forms, the individual can experience excruciating pain, days or weeks of fever and chills, uncontrollable diarrhea and inability to keep down food or water, and extremely labored breathing
6 Kenneth Chang, A Different Way to Chart the Spread of Coronavirus, N.Y. TIMES, March 20, 2020 (“Unconstrained, the coronavirus spreads exponentially, the caseload doubling at a steady rate.”). 7 CTRS. DISEASE CONTROL & PREVENTION, Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) — United States, February 12–March 16, 2020 tbl. (2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm?s_cid=mm6912e2_w. 8 Graham Readfearn, What Happens to People’s Lungs When They Get Coronavirus, GUARDIAN, April 14, 2020, available at https://www.theguardian.com/world/2020/apr/15/what-happens-toyour-lungs-with-coronavirus-covid-19. 9 Lizzie Presser, A Medical Worker Describes Terrifying Lung Failure From COVID-19 — Even in His Young Patients, PROPUBLICA, March 21, 2020, available at https://www.propublica.org/article/a-medical-worker-describes--terrifying-lung-failure-fromcovid19-even-in-his-young-patients.
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requiring oxygen therapy.10 The most severe forms — of which symptoms such as vomiting and diarrhea are thought to be early signs — require hospitalization and often artificial ventilation to preserve life. The artificial ventilation process is highly invasive and many who have undergone the process describe it as psychologically traumatic. Some patients are placed in medically induced comas for such treatment. Some do not survive.
Emerging medical research also demonstrates that, in addition to the shortterm risk of death posed by COVID-19, contracting the virus can lead to other serious long-term medical conditions, including cardiovascular disease and permanent reduction of lung function.11
Because of these short-term and long-term dangers, treating COVID-19 requires a team of health care providers, including nurses, respiratory therapists, and intensive care physicians.12
As of April 10, 2020, the available data from the CDC to date shows that, in total, 20.7 to 31.4 percent of people who tested positive for COVID-19 require hospitalization, 4.9 to 11.5 percent require admission to the ICU, and 1.8 to 3.4 percent die.13
The WHO estimates that the COVID-19 mortality rate is between three and four percent. The CDC estimates that the COVID-19 mortality rate in the United States was
10 Leah Groth, Is Diarrhea a Symptom of COVID-19? New Study Says Digestive Issues May Be Common With Coronavirus, HEALTH, March 20, 2020. 11 Tian-Yuan Xiong et al., Coronaviruses and the Cardiovascular System: Acute and Long-Term Implications, EURO. HEART J., 231 (2020). 12 Pauline W. Chen, The Calculus of Coronavirus Care, N.Y. TIMES, March 20, 2020. 13 Id.
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6.9 percent during week 14 (ending April 4, 2020) of the outbreak in the United States.14 By comparison, the mortality rate of seasonal influenza is well below 0.1 percent.15
There is no vaccine to prevent COVID-19.16 Risk of Infection at Saint Elizabeths Hospital
Medical and mental health professionals have consistently urged that individuals with mental health disorders require “priority attention” in this kind of emergency.
Mental health disorders like those experienced by Plaintiffs can increase the risk of infections, including pneumonia, a leading cause of hospitalization and death among those infected with COVID-19.17
Congregate settings like Saint Elizabeths Hospital enable and facilitate the rapid spread of COVID-19 infection. People live, eat, and sleep in close proximity. In such environments, infectious diseases that are transmitted via the air or touch are more likely to spread. This therefore presents an increased danger for the spread of COVID-19 once it has been introduced into the facility.
14 CTRS. DISEASE CONTROL & PREVENTION, CovidView: A Weekly Surveillance Study of of U.S. COVID-19, Mortality, https://www.cdc.gov/coronavirus/2019-ncov/coviddata/covidview/index.html#mortality (last visited April 16, 2020). 15 WORLD HEALTH ORG, CORONAVIRUS DISEASE 2019 (COVID-19) SITUATION REPORT-46 p. 2 (2020). 16 CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2020: How to Protect Yourself and Others, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (last visited April 16, 2020). 17 See Hao Yao, et al., Patients with mental health disorders in the COVID-19 epidemic, The Lancet, Vol. 7 Issue 4 at e21 (April 1, 2020), available at https://doi.org/10.1016/S22150366(20)30090-0.div.
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To the extent that patients are housed in close quarters, unable to maintain a six-foot distance from others, and sharing or touching objects used by others, the risks of spread are greatly, if not exponentially, increased as already evidenced.
Because people — including staff and contractors—constantly cycle in and out of Saint Elizabeths Hospitals facilities, there is an ever-present risk that new carriers will bring the virus into the facility.
The spread of COVID-19 at St. Elizabeths Hospital could have a devastating impact on public health far beyond the Hospital’s walls. Staff who enter and leave the facility could transmit the virus to the broader community and demands for intensive care beds and ventilators could overwhelm local hospitals and health care providers. It is essential at this time that all steps are taken to reduce infection and to “flatten the curve” to ensure that our health care system does not collapse.
Nursing homes are similar congregate settings. In Maryland, Gov. Larry Hogan is sending “strike teams” to nursing homes that are at high-risk of COVID-19 because of the heightened danger to residents. These strike teams will administer rapid tests; ensure isolation of suspected COVID-19 cases and quarantine of confirmed COVID-19 cases; determine equipment needs; and provide on-site care and medical assessment.18 Maryland’s response underscores the public and individual health imperatives for immediate and decisive action for persons confined to congregate settings and provides a model for implementing such protective actions.
18 Editorial Board, Nursing homes are in the pandemic’s crosshairs. They can’t be neglected. WASHINGTON POST April 13, 2020, available at https://www.washingtonpost.com/opinions/nursing-homes-are-in-the-pandemics-crosshairs-theycant-be-neglected/2020/04/13/7341919a-7db0-11ea-a3ee-13e1ae0a3571_story.html
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Defendants’ Knowledge of COVID-19 Risk
It is the policy of the District of Columbia at this time to require social
distancing and to prohibit people gathering in groups. The Mayor has issued a series of
Executive Orders that carry the force of law and include criminal penalties for those who do not
follow these basic public health practices. The Mayor’s orders relied, in part, on the following
findings:
This Order is issued based on the increasing number of confirmed cases of COVID-19 within Washington, DC, and throughout the metropolitan Washington region. Scientific evidence and public health practices show that the most effective approach to slowing the community transmission of communicable diseases like COVID-19 is through limiting public activities and engaging in social distancing. … Medical and public health experts agree that COVID-19 is easily transmitted and it is essential that its spread be slowed to protect the ability of public and private health care providers to handle the expected influx of ill patients and safeguard public health and safety. …. Because of the risk of the rapid spread of the virus, and the need to protect all members of Washington, DC, and the region, especially residents most vulnerable to the virus, and local health care providers and emergency first responders, this Order requires the temporary closure of the on-site operation of all non-essential businesses and implements a prohibition on large gatherings.19
On February 28, 2020, Mayor Bowser ordered the activation of the
District’s Emergency Operations Center to coordinate responses to COVID-19, requiring
Defendants to “remind their staff and constituencies” of “basic infection practices,” including to
“[w]ash hands with soap and water” or an “alcohol-based hand sanitizer,” to “[a]void close
contact with people who are sick,” and to “[c]lean and disinfect frequently touched objects and
surfaces.”20 The Executive Order specifically requires that “[a]ll relevant District agencies shall
review their copy of the District Response Plan to evaluate the potential impacts of COVID-19
19 GOV’T. D.C., Mayor Bowser Issues Stay-At-Home Order, https://mayor.dc.gov/release/mayorbowser-issues-stay-home-order (last visited April 16, 2020). 20D.C. Mayor’s Order 2020-35 §10(a).
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on emergency roles and responsibilities and take necessary steps to ensure continued performance.”21
On March 13 and 17, Plaintiffs wrote to Defendants inquiring about Defendants’ plans and preparations for the COVID-19, including a specific request that Defendants evaluate every patient for community placement.
Despite these clear indicia of emergency, Defendants did not take sufficient precautions.
The Department of Behavioral Health issued guidance in March 2020 indicating that the Saint Elizabeths Hospital would remain open during the COVID-19 crisis and that the Department was encouraging precautions to limit the spread of the virus at Saint Elizabeths Hospital.
On March 18, 2020, Defendants reported that they began to screen visitors and staff for symptoms of COVID-19 by asking screening questions and taking temperatures.
On March 18, 2020, Defendants reported that they implemented their Emergency Preparedness Plan (“EPP”) to address COVID-19 on March 12, 2020. Defendants have not shared their EPP or any other response plan publicly, and to date, have not produced it in discovery.
On March 18, 2020, Defendants also reported that as of that day, visitation was restricted, incoming patients were being screened for flu-like symptoms, and staff were advised to stay home if they were feeling sick.
Following public reports on April 1 that a patient and five staff members at Saint Elizabeths Hospital had tested positive for COVID-19, Plaintiffs sent a follow-up letter
21 D.C. Mayor’s Order 2020-035, §3(a). 14

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to Defendants requesting an update and information about Defendants’ response and reiterating the request that Defendants evaluate every patient for community placement and take aggressive steps to protect patients who remain in the Hospital. On April 9, Plaintiffs sent a further followup letter. Defendants have acknowledged receipt but not otherwise responded to either letter.
On April 15, the Mayor issued Mayor’s Order 2020-063 which requires health care facilities, including Saint Elizabeths Hospital, to take steps for managing the COVID19 pandemic.22 The Order details steps the facility must take to, among other things, maintain social distancing among residents, restrict visitors from entering the facility, manage symptomatic staff, quarantine or isolate symptomatic or exposed patients, and develop a continuity of operations plan.23 This guidance is inadequate and, to date, Defendants have come woefully short of meeting these steps. Defendants’ Failure to Protect Patients at Saint Elizabeths Hospital Are Putting Plaintiffs
At Heightened Risk of Contracting COVID-19 The CDC issued guidance on COVID-19 Infection Prevention and Control in various congregate settings. Although the CDC does not have guidance specific to psychiatric facilities, it has issued guidance on comparable congregate long-term care settings like nursing homes24 and for health care settings.25
22 D.C. Mayor’s Order 2020-063. 23 Id. 24CTRS. DISEASE CONTROL & PREVENTION, Preparing for COVID-19: Long-term Care Facilities, Nursing Homes https://www.cdc.gov/coronavirus/2019-ncov/hcp/long-termcare.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fhealthcare-facilities%2Fprevent-spread-in-long-term-care-facilities.html (lasted visited April 16, 2020). 25 CTRS. DISEASE CONTROL & PREVENTION, Healthcare Infection Prevention and Control FAQs for COVID-19, https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-
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The CDC recommends that, upon learning of the COVID-19 pandemic, facilities should immediately: educate and train health care personnel and facility-based staff on infection prevention and control measures; educate residents and families about COVID-19; provide hand hygiene supplies; provide tissues and masks; make Personal Protective Equipment (PPE) available; and frequently disinfect high-touch surface areas and shared resident equipment.26
The CDC recommends that facilities should evaluate and manage residents with symptoms of respiratory infection, including asking residents to report symptoms, testing residents for fever and symptoms, and implement practices to prevent the spread of infection from symptomatic people.27
When there has been an outbreak of COVID-19 in the community surrounding the facility, but not yet in the facility, the CDC recommends that, in addition to the guidelines for symptomatic individuals: residents with suspected COVID-19 should be isolated by being placed in a private room with their own bathroom, and the facility should implement practices to prevent and control the spread of the virus, including canceling communal dining and all other group activities.28 The CDC guidance also recommends that if the “facility cannot
faq.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Finfection-control%2Finfection-prevention-control-faq.html (last visited April 16, 2020). 26 CTRS. DISEASE CONTROL & PREVENTION, Preparing for COVID-19: Long-term Care Facilities, Nursing Homes, https://www.cdc.gov/coronavirus/2019-ncov/hcp/long-termcare.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fhealthcare-facilities%2Fprevent-spread-in-long-term-care-facilities.html (lasted visited April 16, 2020). 27 Id. 28 Id.
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fully implement all recommended precautions” residents with “known or suspected COVID-19 . . . should be transferred to another facility that is capable of implementation” and that “while awaiting transfer, symptomatic residents should wear a facemask (if tolerated) and be separated from others.”
When there has been sustained transmission in the community or when there are cases in the facility, the CDC recommends, in addition to the isolation procedures, transfer of symptomatic patients, and termination of group activities that: facilities implement universal use of facemasks for health care professionals; consider the use of gown, gloves, eye protection, and N95 respirators for all staff; encourage patients to remain in their rooms and when they leave their rooms, encourage them to wear a face mask and perform social distancing by staying six feet away from others; and “cohorting,”29 or grouping, ill residents with dedicated health care professionals.30
In correctional facilities, which are similar congregate settings, the CDC recommends medical isolation of positive or presumed positive COVID-19 patients in the following manner:31
29 Cohorting is defined by the CDC as the practice of grouping together patients who are colonized or infected with the same organism to confine their care to one area and prevent contact with other patients. See CTRS. DISEASE CONTROL & PREVENTION, Guideline for Isolation Precautions: Preventing Transmission of Infectious Agents in Healthcare Settings (2007), available at https://www.cdc.gov/infectioncontrol/guidelines/isolation/prevention.html. 30 CTRS. DISEASE CONTROL & PREVENTION, Preparing for COVID-19: Long-term Care Facilities, Nursing Homes, https://www.cdc.gov/coronavirus/2019-ncov/hcp/long-termcare.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fhealthcare-facilities%2Fprevent-spread-in-long-term-care-facilities.html (lasted visited April 16, 2020). 31 CTRS. DISEASE CONTROL & PREVENTION, Interm Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,
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a. As soon as an individual develops symptoms of COVID-19, they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.
b. Individuals’ movement outside the medical isolation space should be limited to an absolute minimum. Patients should be provided medical care and meals inside isolation spaces. Individuals should be assigned a dedicated bathroom. Individuals should be excluded from all group activities.
c. Ensure that the individual is wearing a face mask at all times when outside of the medical isolation space, and whenever another individual enters and provide clean masks as needed.
d. Masks should be changed at least daily, and when visibly soiled or wet. The CDC recommends that facilities should make every possible effort to
place suspected and confirmed COVID-19 cases under medical isolation individually. Each isolated individual should be assigned their own housing space and bathroom where possible.32
https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html (lasted visited April 16, 2020). 32 Id.
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The CDC recommends that cohorting of COVID-19 positive or symptomatic patients should only be practiced if there are no other available options.33 If cohorting is necessary the CDC recommends34:
a. Only individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort confirmed cases with suspected cases or case contacts.
b. Unless no other options exist, do not house COVID-19 cases with individuals who have an undiagnosed respiratory infection.
c. Ensure that cohorted cases wear face masks at all times. Every possible effort must be made to separate infected or potentially
infected individuals from the rest of the incarcerated population. Individuals believed to have been exposed to COVID-19, but who are not yet symptomatic, and those believed to be infected with COVID-19 and potentially infectious should be segregated from others. Any individual who must interact with those potentially or likely infected with COVID-19 must utilize protective equipment as directed by public health authorities.
Patients who require testing, based on public health recommendations and the opinion of a qualified medical professional, should be tested for COVID-19. The CDC recommends prioritizing testing for symptomatic patients in long-term care facilities so that
33 Id. 34 Id.
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those who are at highest risk of complication of infection are rapidly identified and appropriately triaged.35
Once a facility has an outbreak of COVID-19, symptomatic patients should be presumed positive for COVID-19 and treated accordingly.
As discussed in ¶121, the CDC also recommends that facilities prepare for staffing shortages as a result of the virus.36 Defendants Are Not Adequately Implementing Social Distancing or Distribution of Masks
or Other Essential Hygiene Practices Ms. Smith, Mr. Costa, Mr. Dunbar, and Mr. Kirkpatrick all report that it is impossible for patients at Saint Elizabeths Hospital to maintain six feet of distance between themselves and other people in the Hospital. Defendants have not provided masks or personal protective equipment to all patients or instructed or required patients to wear masks in a manner consistent with public health guidelines. Patients who have masks are unable to replace them with clean masks in a manner consistent with public health guidelines. Patients are instructed to remain on their Units but patients share common areas like medicine distribution centers, laundry facilities, lounges, and cafeterias. Defendants are not ensuring that Unit bedrooms and bathrooms are cleaned and sanitized regularly.
35CTRS. DISEASE CONTROL & PREVENTION, Evaluating and Testing Persons for Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-nCoV/hcp/clinicalcriteria.html (lasted visited April 16, 2020). 36 CTRS. DISEASE CONTROL & PREVENTION, Strategies to Mitigate Healthcare Personnel Staffing Shortages, https://www.cdc.gov/coronavirus/2019-ncov/hcp/mitigating-staff-shortages.html (last visited April 16, 2020).
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Defendants are not ensuring that Unit facilities are adequately stocked with soap and hand sanitizer.
Defendants have instructed Ms. Smith to remain on her Unit, which houses up to 27 people.
Patients in Ms. Smith’s Unit use the same common spaces. They eat dinner together in groups of up to ten people. They all use the same lounge area and laundry room. It is not possible for her to maintain six feet of distance from other patients in her Unit.
Defendants have not provided Ms. Smith with a mask. Most patients on her Unit do not wear masks.
On or around April 1, 2020, Defendants instructed Mr. Kirkpatrick to remain on his Unit, which houses 26 men.
Patients in Mr. Kirkpatrick’s Unit all use the same common spaces, including the dining hall, laundry room, and lounge. It is not possible for him to maintain six feet of distance from other patients in his Unit.
Mr. Kirkpatrick has a single room, but at least six patients in his Unit are residing in a room with another patient.
Mr. Kirkpatrick has symptoms of COVID-19, as alleged in ¶ 21 and ¶102. Despite these symptoms, Defendants have not provided Mr. Kirkpatrick with a mask to wear. Some, but not all, patients on his Unit are wearing masks.
On or around April 1, 2020, Defendants instructed Mr. Costa to remain on his Unit, which houses 15 men as of April 14, 2020.
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Patients in Mr. Costa’s Unit all use the same common spaces like the lounge area and the laundry room. It is not possible for him to maintain six feet of distance from other patients in his Unit.
Patients in Mr. Costa’s Unit are all eating in the same dining room and eat in groups of 2-3 patients at a time. Even with these limited numbers, there is not enough space for the diners to maintain six feet of distance from other patients during meals.
Defendants provided Mr. Costa with a mask and instructed Mr. Costa how to use it. Defendants do not require Mr. Costa or other patients in his Unit to wear a mask. Mr. Costa is wearing a mask because he fears that other patients in his Unit may have COVID-19.
One patient on Mr. Costa’s unit is symptomatic for COVID-19. This patient remains housed in Mr. Costa’s unit and is self-quarantining in his room.
Defendants have instructed Mr. Dunbar to remain in his Unit, Unit 2A. Mr. Dunbar has a single room.
Patients in Mr. Dunbar’s Unit are using the same common space. Defendants have provided Mr. Dunbar with a single mask. Mr. Dunbar must use the same mask every day. This is an unsafe practice, as handling a contaminated mask simply transfers the virus to one’s fingers. Defendants Have Not Adequately Implemented Testing, Quarantine and Isolation
Procedures There is no COVID-19 testing taking place on-site at the Hospital. Patients are only being tested for COVID-19 once they are symptomatic of the virus. Patients who have been exposed to the virus but are asymptomatic are not being tested. Defendants are not segregating all of the patients who are COVID-19 positive from other patients at the Hospital. Patients who have tested positive for COVID-19 are
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housed in close quarters and share common areas with patients who are showing no symptoms and patients who have potentially unexposed to the virus.
Defendants are not segregating patients who are symptomatic and asymptomatic of COVID-19. Patients who have symptoms of COVID-19 such as fevers and respiratory distress are housed in close quarters and share common areas with patients who are showing no symptoms.
Defendants are not segregating patients who are have been exposed to COVID-19 positive staff and patients from asymptomatic and/or unexposed patients. Patients who have been exposed to COVID-19 are housed in close quarters and share common areas with patients who are showing no symptoms.
Defendants have created one quarantine unit at the Hospital. This quarantine unit can only house seven patients. Patients on this Unit are given masks daily but no other personal protective gear. Bedrooms and bathrooms on this Unit are not regularly cleaned and sanitized.
The first confirmed case of COVID-19 at the Hospital was April 1, 2020. Defendants did not begin to use auxiliary space within the Hospital to segregate asymptomatic, symptomatic, exposed, and COVID-19-positive patients until on or about April 15, 2020. As of April 15, 2020, patients who are symptomatic, exposed, or COVID-19-positive are still housed in close quarters with shared common spaces with asymptomatic and/or unexposed patients.
Mr. Kirkpatrick was symptomatic of coronavirus. Mr. Kirkpatrick had a fever and respiratory symptoms, including cough and shortness of breath. Mr. Kirkpatrick also reported loss of taste and smell, which is a symptom of COVID-19.
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After Mr. Kirkpatrick reported his symptoms on or about April 4, 2020, Defendants did not provide Mr. Kirkpatrick with a test to determine if he was COVID-19 positive.
Defendants did not treat Mr. Kirkpatrick as a patient suspected or presumed positive for coronavirus. Mr. Kirkpatrick was not isolated from other patients, nor was he transferred to another facility. Defendants did not instruct Mr. Kirkpatrick to self-quarantine within his Unit.
Defendants did not instruct Mr. Kirkpatrick to wear a mask or take other preventive measures to stop the spread of his illness. Mr. Kirkpatrick’s symptoms improved but he was not tested for COVID-19 and does not know if he had the virus.
Mr. Dunbar’s Unit, Unit 2A, has had four patients test positive for COVID-19. Two COVID positive patients were rehoused in the quarantine unit and two COVID positive patients remained on Unit 2A with asymptomatic and potentially unexposed patients.
The COVID-19 positive patients who remain housed in Unit 2A are interacting with other, asymptomatic and potentially unexposed patients in the common areas where they watch television or get refreshments.
Despite being exposed to COVID-19 positive patients in his Unit, Mr. Dunbar has not been tested for COVID-19 or segregated from other patients.
Defendants Are Depriving Patients of Essential Mental Health Care There has been severe curtailment of mental health care and Defendants
are failing to provide the mental health care that is essential for patient’s well-being. Patients are not receiving the same or functionally equivalent mental
health care that they received prior to the COVID-19 pandemic. Defendants have closed the Treatment Mall, suspended group therapy, and suspended anger management classes and most
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competency restoration classes. There are some individual therapy sessions, competency classes, and evaluations occurring virtually.
Defendants have not taken steps to systematically compensate of the loss of group therapy or necessary classes or provided alternative or modified treatment plans, for example by using teletherapy or virtual therapy.
Ms. Smith, Mr. Costa, Mr. Dunbar, and Mr. Kirkpatrick normally receive group therapy. None of them has received group therapy or a telephonic or other remote substitute for the past few weeks.
Mr. Costa normally receives individual therapy but has not received individual therapy or a telephonic or other remote substitute since Defendants ordered him to remain on his Unit.
Mr. Dunbar has not received any therapy, or a telephonic or other remote substitute, aside from a single treatment team meeting, since Defendants ordered him to remain in his Unit.
Ms. Smith has received only one therapy session via telemedicine with her usual therapist since Defendants ordered her to remain in her Unit.
When patients with psychiatric needs do not receive appropriate mental health services, it becomes more likely symptoms will be exacerbated and patients will experience regression and damage to their mental health.
Defendants’ Staffing Shortage The total number of staff members employed at Saint Elizabeths Hospital is approximately 700. Large numbers of staff are not reporting to work.
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On March 31, 2020 Defendants reported that 5 staff members tested positive for COVID-19 and another 22 staff members were not reporting to the hospital because they were quarantined due to possible exposure to COVID-19.
By April 16, 2020, 47 staff members were positive for COVID-19 and another 23 were in quarantine due to possible exposure to COVID-19, for a total of 70 staff members absent from the hospital.
Mr. Dunbar reports that his unit, Unit 2A, is short-staffed. The CDC has issued Guidance on Strategies to Mitigate Healthcare Personnel Staffing Shortages including the recommendations that, at minimum, healthcare facilities must understand their staffing needs and the minimum number of staff needed to provide a safe work environment and patient care and be in communication with local healthcare coalitions, federal, state, and local public health partners to identify additional health care personnel, when needed.37 Despite multiple requests from Plaintiffs’ Counsel, Defendants have provided no evidence that they are following the CDC’s guidance. The Hospital’s Response to COVID-19 is Similar to Its Response to the 2019 Extended
Water Outage The Hospital’s approach to COVID-19 is similar to its approach to the extended water crisis when Saint Elizabeths Hospital did not have safe, running water from at least September 26, 2019 to October 24, 2019. During that period, the water supply at Saint Elizabeths Hospital was either completely turned off or limited for sewage use only.
37 CTRS. DISEASE CONTROL & PREVENTION, Strategies to Mitigate Healthcare Personnel Staffing Shortages, https://www.cdc.gov/coronavirus/2019-ncov/hcp/mitigating-staff-shortages.html (last visited April 16, 2020).
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Plaintiffs are at a continuous risk due to the lack of appropriate emergency plans. They are all indefinitely, involuntarily committed to the District’s care and will likely be committed at Saint Elizabeths Hospital for all or most of their lives. For example, Ms. Smith has been committed to Saint Elizabeth’s for approximately 17 years.
The failure to develop a plan to deal with health emergencies has caused Plaintiffs and the plaintiff class remain at risk of further irreparable harm. Fears at the time of the water outage that Defendants’ wrongful behavior would likely recur have come to pass.
The October 2019 water contamination was the second time in three years that Saint Elizabeths Hospital has experienced an extended water outage. Defendants’ response to this second extended water outage indicates that they do not have an appropriate Emergency Water Supply Plan to manage extended water outages at Saint Elizabeths Hospital. Defendants’ current and ongoing failure to provide the most basic protections against COVID-19 for its patients and staff reflects that it continues to lack an appropriate plan to deal with health emergencies.
The extended water outage and its effects caused a clear risk to the health and safety of Saint Elizabeths Hospitals patients, including Plaintiffs and class members. The extended water outage and its effects created an unreasonable risk of traumatizing patients and exacerbating symptoms of mental illness.
The conditions at Saint Elizabeths Hospital during the 2019 water outage, as described below, caused long lasting, if not permanent, damage to patients and their efforts at recovery.
The conditions at Saint Elizabeths Hospital during the 2019 water outage, as described below, violated professional standards of care and treatment.
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Water Outage Allegations As of October 23, 2019 (Initial Complaint, Dkt. 1) The allegations in this section reflect the conditions as of the filing of
Plaintiffs’ initial Complaint in this matter on October 23, 2019. Saint Elizabeths has not had safe, running water since at least September
26, 2019. Since September 26, 2019, the water supply at Saint Elizabeths has been either completely turned off or has been limited for sewage use only.
Despite the extended water outage and the inability to provide appropriate, required medical care and therapy, as described below, Saint Elizabeths is still accepting new patients.
The extended water outage and its effects cause a clear risk to the health and safety of Saint Elizabeths’ patients, including Plaintiffs and class members. The extended water outage and its effects creates an unreasonable risk of traumatizing patients and exacerbates symptoms of mental illness.
The current conditions at Saint Elizabeths, as described below, will result in long lasting, if not permanent, damage to patients and their efforts at recovery.
The current conditions at Saint Elizabeths, as described below, violate professional standards of care and treatment.
On September 26, 2019, the D.C. Department of Behavioral Health (“DBH”) received preliminary lab results for a water quality test of Saint Elizabeths showing evidence of pseudomonas and legionella bacteria in the facility’s water supply.
Legionella bacteria is known for causing Legionnaires’ disease, which can lead to severe infections in people with weakened immune systems. According to the CDC, one out of four people who contract Legionnaires’ disease in a healthcare setting dies because of it.
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Pseudomonas bacteria can lead to severe infections for people with weakened immune systems.
In response to the bacteria found in the water supply, DBH reportedly implemented its “water emergency protocol” and turned the water off completely. Upon information and belief, the water has been turned on occasionally and for limited purposes since September 26, 2019 but at no point has Saint Elizabeths had safe, running water.
At the end of September, Plaintiffs Ms. Smith, Mr. Costa, Mr. Kirkpatrick, and Mr. Dunbar were abruptly told by staff that the water would be shut off because there was a water problem.
Upon information and belief, DBH hired contractors to flush Saint Elizabeths’ water system with chlorine, but testing following the “super chlorination” of the water system continued to show legionella within the facility’s water system.
According to Plaintiff Mr. Costa, as of 4:00 p.m. on October 23, 2019, the water remained shut off at Saint Elizabeths and upon information and belief, DBH has not given a precise date that it will be turned back on.
At 5:45 p.m. on October 23, 2019, Councilmember Vincent Gray tweeted that he had been informed by an unnamed source that “all bacteria has been eliminated” from the water system at St. Elizabeths Hospital and that “the process has already begun to restore full water service to the hospital.” According to Vincent Gray’s tweets, the “toilet are fully operational” and “[F]aucet heads are being reconnected now and that process should be fully completed by tomorrow [October 24, 2019].” Vincent Gray has shared no supporting documents, water tests, or information from DBH or Saint Elizabeths Hospital on Twitter.
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Each of the previous dates DBH communicated to patients, their attorneys, or the public for when DBH expected to have safe running water has not been met.
This is the second time in three years that Saint Elizabeths Hospital has experienced an extended water outage. Defendants’ response to this second extended water outage indicates that they do not have an appropriate Emergency Water Supply Plan to manage extended water outages at Saint Elizabeths Hospital.
Plaintiffs are all indefinitely, involuntarily committed to the District’s care and will likely be committed at Saint Elizabeths for all or most of their lives. For example, Ms. Smith has been committed to Saint Elizabeth’s for approximately 17 years.
As discussed below, the extended water outage at Saint Elizabeths that plaintiffs continue to suffer is irreparably harming the Plaintiffs and plaintiff class. Furthermore, even if the clean water is restored in the near future, Plaintiffs and the plaintiff class will remain at risk of further irreparable harm until the Defendants remediate conditions at Saint Elizabeths, provide adequate mental health services to meet the current needs of patients, and establish an appropriate Emergency Water Supply Plan. Thus, even if the current crisis is ameliorated, Plaintiffs will still be at risk of further irreparable harm. It is also far from clear that the wrongful behavior cannot be expected recur.
The extended water outage at Saint Elizabeths has prevented patients from receiving appropriate and necessary care, including medical care, psychiatric care, and therapy, creating an imminent risk of irreparable harm.
Because of the extended water outage, Defendants closed the Treatment Mall. Patients remain on their locked wards and are not receiving appropriate group therapy, art therapy, or exercise.
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Staff, including psychologists and psychiatrists, are not regularly attending work because of the water crisis, forcing cancelations of patient team meetings and other appointments.
Defendants have severely curtailed or suspended the psychiatric care on which patients depend. Patients at Saint Elizabeths, including Plaintiffs, are receiving fewer services, and less of the services they are still receiving, than normal. The minimal services they are receiving are not appropriate or tailored to their needs.
DBH has not explained how it is appropriately dispensing medication, particularly those medications that need to be suspended in water. DBH has not made any statement about how they are addressing patients’ medication side effects that are related to the lack of adequate water or that need water in response, such as dry mouth and dehydration.
In addition to depriving patients of psychiatric care necessary on an ongoing basis, Saint Elizabeths’ staff are failing to provide other types of health care. Upon information and belief, staff are not performing routine checks of new patients for lice, bacteria, and other infections.
Patients have no access to dentistry and podiatry care that is typically available at Saint Elizabeths.
Ms. Smith has had a toothache but cannot go to the dentist. Mr. Costa’s ward administrator, psychologist, psychiatrist, and therapist have all missed work during the time period while the water was shut off and have not been able to convene his team meetings. Mr. Costa has been unable to talk to his psychiatrist about switching one of his medications since the water outage occurred.
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Mr. Costa has not been able to access behavioral therapy, anger management classes, group therapy, art therapy, or the gym since Defendants closed the Treatment Mall.
Mr. Costa normally gets 40 hours per week of therapy but Defendants are providing him with just 2 hours per day (10 hours per week) currently. The little therapy he is receiving is inappropriate: it is a competency restoration group but Mr. Costa is already competent.
Because there was no water, Defendants have not provided Mr. Kirkpatrick with group therapy.
Defendants cancelled a Narcotics Anonymous meeting that both Mr. Kirkpatrick and Mr. Dunbar attend because there was no water.
Defendants have not provided Mr. Dunbar with group therapy or the opportunity to exercise since the water was shut off.
Without safe, running water, patients and staff cannot flush the toilets regularly, wash their hands, shower, wash clothing, or drink from the water fountains. Patients at Saint Elizabeths are using bottled water, hand sanitizers, and personal care body wipes to care for their basic hygiene. Patients are permitted limited use of temporary portable showers and toilets. Clothes and linens are only washed periodically and must be sent outside of the facility to be cleaned.
Patients and staff cannot regularly and routinely flush the toilets at Saint Elizabeths. Saint Elizabeths has more than 70 operating bathrooms when the facility has running water. A limited number of toilets within the facility are in use when the water is turned off. These toilets must be flushed manually by pouring water into the tanks. Staff are only flushing
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the toilets twice per day, leading to the accumulation of feces, urine, and menstrual blood. The toilets are overflowing and human waste is flowing onto the floors in some bathrooms. There are also a limited number of port-a-potties outside the facility which were not provided until after the water had been shut off for some time.
Ms. Smith did not have access to port-a-potties for several days after the water was shut off. While she was awaiting port-a-potties, she used the indoor toilets. Staff would flush those toilets twice per day. The indoor toilets were disgusting and unclean. There were menstrual products all over the bathroom.
Mr. Costa’s unit, Unit 1C, normally has six toilets. Unit 1C houses 26 men. Currently all of the men on his unit must use one toilet. That toilet is flushed manually by pouring water into the tank only once a day. The toilets back up and the smell from the toilets is “disgusting, pungent, sour, and strong.”
Mr. Costa did not have access to a port-a-potty until about a week after the water was shut off. The port-a-potties are outside and about 200 yards from his unit. The port-apotties are not clean and they smell.
Mr. Kirkpatrick’s unit has an average of two usable toilets for approximately 25 people. The toilets do not have running water and are flushed by staff or patients. There is a buildup of feces on the toilet and floor. The bathroom smells.
Mr. Kirkpatrick did not have access to a port-a-potty until about 2-3 weeks after the water was shut off.
Mr. Dunbar’s unit, Unit 2A, only has 2 usable toilets for approximately 27 people. The smell of the toilets is so nasty and strong that it makes Mr. Dunbar want to vomit.
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Mr. Dunbar is able to secure day passes to temporarily leave the facility and during this time he tries holds his solid waste until he can use toilets outside of Saint Elizabeths grounds.
Patients cannot use the indoor showers at Saint Elizabeths. Patients have to bathe in portable outdoor showers. DBH secured eight portable showers for Saint Elizabeths’ entire patient population. The portable showers are clogged and dirty. The patients have to stand outside in groups and take showers in rotation because they have to travel back inside the facility as a group. There is no privacy in the showers.
Before the outdoor showers arrived, Ms. Smith had to use wipes to clean herself because she was not permitted to shower indoors. She does not like using the wipes and does not feel clean using the wipes.
Ms. Smith is only permitted to use the outdoor showers on Mondays, Wednesdays and Fridays, rather than showering every day. She is not allowed to use the showers when it is raining.
Mr. Costa did not have access to a shower until about a week after the water was shut off. On his unit, only 8 individuals are permitted to use the portable showers per day. His unit can use the portable showers on Mondays, Wednesday, and Fridays, which means that he is only able to shower one time per week.
One time that Mr. Costa was permitted to shower, the water was cold. After he showered he had to stand outside in the cold temperatures while waiting for everyone to finish showering. He got a headache as a result.
When Mr. Costa does not have access to a shower, he has the options to clean himself with sanitary wipes or a five gallon bucket of soapy water and a wash rag. The
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wipes make his skin uncomfortable. Washing with a bucket is degrading and Mr. Costa has not used that option because it makes him feel like he is treated like an animal.
Mr. Kirkpatrick used a portable shower and had to stand outside in the cold while others finished showering. He got sick after using the portable shower, experiencing chills and a migraine.
Mr. Dunbar did not have access to a portable shower for several days after the water was shut off. When he was able to access a portable shower, the water kept turning on and off. The portable showers are not accessible for patients who use wheelchairs and with other mobility issues. The portable showers have steps up to them. The portable showers have narrow passageways inside. Many older patients are unable to use them.
Ms. Smith’s knee gave out one day while walking up the stairs to the shower.
Upon information and belief, the portable showers are being overseen by male security guards only. Many women at Saint Elizabeths are survivors of sexual assault and do not feel safe using the portable showers. As a result, some of the women have not showered for more than four weeks.
Ms. Smith cannot wash her hands. She must use bottled water to brush her teeth and is not always given enough water to brush her teeth. She has not washed her hair in three weeks. She cannot do laundry in the hospital and when her cloths were sent out to the laundry, some of them went missing. She currently only has one clean outfit to wear. Ms. Smith’s unit has been unusually cold while the water has been shut off. Ms. Smith’s unit smells like dead rats.
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Mr. Costa cannot use the faucets to wash his hands, brush his teeth, or shower. The dirty toilets have attracted bugs and mosquitos that are biting him and others on his unit.
Mr. Kirkpatrick cannot use the water. He cannot do laundry and does not have access to a washer-dryer. He does not know when he will be able to do laundry or obtain clean clothes again.
Mr. Dunbar cannot use the water and has to use bottled water to drink and to brush his teeth. Because the conditions in the bathrooms are so dirty and unhygienic, he does not feel comfortable using the bathrooms or cleaning his teeth. Some of the closed bathrooms in his unit have signs indicating that they are quarantined because of a bacterial infection. He has had his laundry sent out only once in the last three weeks. When his clothes were returned some had shrunk and they still felt dirty.
Mr. Dunbar is permitted to leave the facility on a day pass approximately two times per month. He normally spends time with his family. Because of the unsanitary conditions, he worries about bringing home bacteria and spreading it to his family.
The lack of water has caused a tense and stressful environment among patients and staff. Patients are confined to their units during the day instead of receiving therapy and recreation. Staff are not regularly reporting for work.
Patients, including Ms. Smith and Mr. Costa, are unable to leave their units and rooms to receive treatments or recreate. As a result, they and other patients are sleeping and dozing during the day.
There has been an increase in fights and physical aggression between patients following the water outage.
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There has been an increase in the use of seclusion and restraint of the patients following the water outage.
In the Absence of Adequate Emergency Plans, the District is Denying Patients Essential Medical and/or Mental Health Care and Essential Hygiene and Endangering Patient Safety
During the COVID-19 pandemic and the extended water outage at Saint Elizabeths Hospital, patients did not receive appropriate and necessary care, including medical care, psychiatric care, and therapy, creating an imminent risk of irreparable harm.
During both the COVID-19 and the extended water outage crises, Defendants closed the Treatment Mall and failed to provide appropriate alternative or virtual therapies.
During both the COVID-19 and the water outage crises, staff, including psychologists and psychiatrists, were not regularly attending work, forcing cancelations of patient team meetings and other appointments.
During both the COVID-19 and the water outage crises, Defendants severely curtailed or suspended the psychiatric care on which patients depend. Patients at Saint Elizabeths Hospital, including Plaintiffs, receive fewer services, and less of the services they did receive, than normal. The minimal services they receive are not appropriate or tailored to their needs.
During both the COVID-19 and the water outage crises, Defendants failed to provide patients, including Plaintiffs, with essential hygiene. During the COVID-19, as discussed above, many patients at Saint Elizabeths have not been provided with masks, and continue to be housed in a manner inconsistent with social distancing and medical isolation protocols. During the water crisis, patients and staff could not flush the toilets regularly, wash their hands, shower, wash clothing, or drink from the water fountains. Patients were permitted
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only limited use of temporary portable showers and toilets. Clothes and linens were only washed periodically and had to be sent outside of the facility to be cleaned.
During both crises, the crisis caused a tense and stressful environment among patients and staff. Patients were confined to their units during the day instead of receiving therapy and recreation. Staff were not regularly reporting for work and patients did not have adequate staff to care of them.
A restrictive psychiatric hospital setting like Saint Elizabeths Hospital must be safe, calm, predictable in its routine, and responsive to each individual’s needs for treatment in order to achieve its goals of preventing and ameliorating harm.
An environment that is chaotic, unpredictable, and unsafe, in which patients are not receiving individualized, continuous, intensive treatment risks traumatizing people further and exacerbating the psychiatric needs that were the basis for their admission.
Delays in treatment of psychiatric illness in a psychiatric facility that restricts self-determination and integration into community-based settings, like Saint Elizabeths Hospital, can result in feelings of isolation, hopelessness, and despair; and increased stress and anxiety.
Segregation of individuals with disabilities should be an option of last resort under the best of circumstances as confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.
As described in this First Amended Complaint, patients, including Plaintiffs, are not receiving recommended therapy and treatment due to COVID-19 and are at high risk of contracting a highly communicable, potentially fatal infection. Plaintiffs are at a
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continuous risk due to the lack of appropriate emergency plans. To the extent that hospitalization was defensible prior to the COVID-19 crisis, Defendants cannot justify the failure to evaluate and place patients in the community with appropriate supports.
As described in this First Amended Complaint, patients, including Plaintiffs, did not receive recommended therapy and treatment due to the extended water crisis and were subject to horrific unsanitary conditions. Plaintiffs are at a continuous risk due to the lack of appropriate emergency plans. To the extent that hospitalization was defensible prior to the extended water outage, Defendants cannot justify the failure to evaluate and place patients in the community with appropriate supports.
Defendants provide a wide array of services in the community to meet the needs of Plaintiffs. Services include diagnostic/assessment services, counseling, medication, intensive day treatment and crisis/emergency services. Individualized behavioral health services are supported by rehabilitation programs, peer supports, supportive employment opportunities, housing assistance and a range of community housing alternatives to facility-based care. These services are being provided by Defendants during the COVID-19 crisis and could be provided to patients, including Plaintiffs, in the community.38
The District Bears Responsibility for the Conditions at Saint Elizabeths Hospital As the director of DBH, the agency that oversees Saint Elizabeths
Hospital, Defendant Bazron has the authority to “[s]upervise and direct the Department” and “[e]xercise any other powers necessary and appropriate to implement the provisions of this chapter.” D.C. Code § 7-1141.04.
38 Department of Behavioral Health, Adult Service, DC.GOV, https://dbh.dc.gov/service/adultservices (last visited April 16, 2020).
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These powers make Defendant Bazron the final policymaking authority with respect to responding to emergencies at Saint Elizabeths Hospital.
Defendant Bazron is responsible for the fact that, during the water crisis and COVID-19 crisis, Saint Elizabeths Hospital has continued admitting and housing patients in unsafe conditions without adequate protections.
During the water crisis, Defendant Bazron informed reporters that she and her team were “very, very involved in making sure that we got the [water] problem solved.”
During the water crisis, Defendant Bazron further demonstrated her responsibility for Saint Elizabeths Hospital’s decision to keep patients in dangerous conditions without adequate protections by explaining and defending that approach to the public through multiple statements to journalists.
For example, Defendant Bazron told reporters that DBH had procured “an extensive supply of bottled water” but had continued admitting patients and declined to move patients to other locations. Defendant Bazron also endorsed DBH’s response to the water outage, stating that “[t]hings are really moving very smoothly.
By shutting off the water at the facility, Defendants knew or should have known that they would drastically curtail access to showers, toilets, clean clothing, and medical care, and create disorder that could exacerbate patients’ mental health disabilities. The policies Defendants adopted in response to these risks were not reasonably calculated to prevent the harms that Plaintiffs have alleged.
Defendants’ inactions and specifically their failures to train and/or supervise Hospital staff to ensure that the harms to Plaintiffs described in the Initial Complaint (realleged above at ¶¶130-188, 208) were prevented or ameliorated, caused those harms and
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amounted to deliberate indifference because these harms were the obvious and likely consequence of Defendants’ inactions.
Defendants are displaying deliberate indifference to the risk that patients face from the COVID-19 pandemic. Defendants knew or should have known that failing to test symptomatic patients for COVID-19, failing to transfer patients with known or suspected COVID-19 to other facilities, failing to isolate symptomatic and exposed patients, failing to quarantine COVID-19 positive patients, and failing to create an environment where social distancing is possible would result in the rapid spread of COVID-19 at Saint Elizabeths Hospital. Defendants knew or should have known that this posed an unreasonable risk of serious infection and death among the patient population. The policies Defendants adopted in response to this risk was not reasonably calculated to prevent it, and did not in fact prevent it.
Additionally, Defendants, by failing to supervise and/or train staff to ensure that they took full and appropriate precautionary measures, are displaying deliberate indifference to the risk that the response to the conditions at Saint Elizabeths Hospital will result in constitutional violations. Defendants’ failures are subjecting patients to the obvious and likely risk of contracting COVID-19, which places Plaintiffs in serious danger of severe illness or death.
CLASS ACTION ALLEGATIONS The named Plaintiffs bring this suit on their own behalf and on behalf of all current Saint Elizabeths Hospital patients and all patients who will be admitted in the future while the hospital operates without a sufficient emergency preparedness plan that protects patients from an unreasonable risk of harm.
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This class is so numerous that joinder of all members in impractical. Saint Elizabeths Hospital has 2370 patients currently. Because the population changes on a daily basis, it is inherently fluid and the class also includes future members whose identities are not known at this time. Fed. R. Civ. P. 23(a)(1).
There are questions of law and fact common to all class members, including but not limited to the Defendants’ deprivation of the class members’ substantive due process rights, the Defendants’ failure to provide constitutionally safe and humane conditions to class members and the Defendants’ failure to provide appropriate medical care to class members, and the District’s violation of the class members’ rights under the Americans with Disabilities Act. Fed. R. Civ. P. 23(a)(3).
The named Plaintiffs will fairly and adequately represent the interests of the class. They possess a strong personal interest in the subject matter of the lawsuit and are represented by experienced counsel with expertise in class action litigation in federal court. Counsel have the legal knowledge and resources to fairly and adequately represent the interests of all class members in this action. Fed. R. Civ. P. 23(a)(4).
Defendants have acted or refused to act on grounds generally applicable to the class in that Defendants’ policies and practices of violating the Plaintiffs’ constitutional rights have affected all class members. Accordingly, final injunctive and declaratory relief is appropriate to the class as a whole. Fed. R. Civ. P. 23(b)(2).
NECESSITY FOR EMERGENCY INJUNCTIVE RELIEF The Defendants have acted and, as of the time of filing, continue to act in
violation of the law as described above. The named Plaintiffs and the class they seek to represent do not have an adequate remedy at law. As a result of the policies, practices, acts, and omissions of the Defendants, the named Plaintiffs, and the class they seek to represent, have suffered, are
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suffering, and will suffer serious, imminent, irreparable physical, mental, and emotional injuries.

Such serious injuries are continuing and likely irreversible.

FIRST CLAIM FOR RELIEF

(Claim under 42 U.S.C. § 1983 and 28 U.S.C. § 2241 for violation of the Fifth Amendment—Due Process)

The Fifth Amendment’s Due Process Clause protects individuals in the

District of Columbia from government conduct that deprives them of their constitutional rights

because it is “so egregious that it may fairly be said to shock the contemporary conscience.”

Individuals who are committed to the District’s custody, like the named

Plaintiffs and other class members, have a protected constitutional right under the Due Process

Clause of the Fifth Amendment to be housed in humane conditions, to have the District take

reasonable steps to guarantee their care and safety, and to have adequate medical care, including

mental health care.

Defendants’ actions and inactions have repeatedly deprived class members

of their constitutionally protected rights to reasonable care and safety. These instances have

included when, as alleged in

a.

Paragraphs 2-5, 7, 14, 37-126, 189-199, and 201, Defendants failed to

create and implement an appropriate Emergency Preparedness Plan that

allowed Plaintiffs to practice social distancing, remain separate from

persons who were COVID-19 symptomatic or COVID-19 positive,

restricted visitor and new patients, and appropriately and quickly tested

symptomatic individuals.

b. Paragraphs 6-13 and 123-184, Defendants failed to maintain an

appropriate Emergency Water Supply Plan after the first extended water

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outage, which caused Defendants to cut off running water and deprive Plaintiffs of basic sanitation including sanitary toileting, safe and sanitary showers, and clean clothes and linens. Defendants’ actions and inactions shock the conscience. Defendants’ actions in unilaterally altering medical care at Saint Elizabeths Hospital during the COVID-19 crisis, as alleged in Paragraphs 189-199 and 201, and during the 2019 water crisis, as alleged in Paragraphs 9, 127, 132, 134-135, 147-161, 189-201, depart from professionally accepted standards and/or appropriate professional judgement, and deprive class members of their constitutionally protected rights. Defendants’ policies, practices, acts, and/or omissions have placed and will continue to place the named Plaintiffs and the members of the class they seek to represent at an unreasonable risk of harm as alleged in Paragraphs 1-7, 10-11, 37-77, 78-108, 127-148, 189, 195, 199-200, and 209-211. There is no reasonable justification for the Defendants’ actions. Plaintiffs are entitled to injunctive relief and/or a writ of habeas corpus to relieve them from unconstitutional confinement.
SECOND CLAIM FOR RELIEF (Claim against the District of Columbia under 42 U.S.C. § 12131 et seq. for violation of the
Americans with Disabilities Act) The named Plaintiffs and the Plaintiff Class are individuals with disabilities within the meaning of the ADA. Their impairments substantially limit one or more major life activities, including caring for oneself, concentrating, and thinking. As adults who have been determined to require intensive inpatient care to support their recovery from serious and persistent mental illness, the named Plaintiffs and the
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Plaintiff Class are qualified to participate in Defendants’ behavioral health programs and services. 42 U.S.C. § 12131(2).
The District of Columbia is a public entity as defined by Title II of the ADA. 42 U.S.C. § 12131(1).
Defendants have discriminated against Plaintiffs by repeatedly failing to reasonably modify its system to reduce the segregation of Plaintiffs with disabilities from their communities of non-disabled peers during emergencies that threaten the physical and mental health and safety of Plaintiffs and undermine the clinical justification for such confinement. These instances have included when, as alleged in
a. Paragraphs 2-5, 7, 14, 37-126, 189-99, 201, and 210, during the COVID19 crisis, they failed to cease intakes, conduct individual assessments of patients to determine whether other options existed in lieu of continued placement at Saint Elizabeths Hospital, and failed to take appropriate action for Plaintiffs and other class members, including relocating within the District those patients for whom it was appropriate or providing reasonably modified services for those for whom relocating was not appropriate. 28 C.F.R. § 35.130(b)(7).
b. Paragraphs 6-13 and 123-184, during the 2019 extended water outage, they failed to cease intakes, conduct individual assessments of patients to determine whether other options existed in lieu of continued placement at Saint Elizabeths Hospital, and failed to take appropriate action for Plaintiffs and other class members, including relocating within the District those patients for whom it was appropriate or providing reasonably
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modified services for those for whom relocating was not appropriate. 28 C.F.R. § 35.130(b)(7). Defendants have discriminated against class members by repeatedly utilizing methods of administration that deprive Plaintiffs of equal access to the benefits of the mental health services provided by Defendants that other individuals in the community are receiving. These instances have included when, as alleged in a. Paragraphs 109 and 111-115, during the COVID-19 crisis, Defendants failed to provide for alternative treatment, such as teletherapy, virtual therapy, telephonic therapy or another remote substitute. b. Paragraphs 9, 20, 110-115, 132, 149, 157-161, 185, 189, 194, 199-200, and 229, during the first extended water outage Defendants curtailed individual psychotherapy, stopped or curtailed group therapy, stopped competency classes, restricted all access to the Treatment Mall and thereby prevented planning team meetings and suspended art and music therapy, vocational training, exercise, and socialization; restricted patient movement to the patient’s unit;, intermittently shut off the water; inappropriately restricted toilets and shower use, provided inaccessible portable showers; and suspended medically necessary services such as dentistry and podiatry. There is no reasonable justification for these failures. These failures have the effect of defeating or substantially impairing the accomplishment of the objectives of Defendants’ behavioral health programs with respect to the Individual Named Plaintiffs and the Plaintiff Class. 28 C.F.R. § 35.130(b)(3)(ii).
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Defendants’ policies, practices, acts, and/or omissions violate the Americans with Disabilities Act. 42 U.S.C. § 12131.
PRAYER FOR RELIEF Based on the foregoing, Plaintiffs request that the Court:
Certify this case as a Class Action pursuant to Fed. R. Civ. P. 23(b)(2); Designate undersigned counsel as attorneys for the certified class; Declare that Defendants violated Plaintiffs’ rights under the Fifth Amendment to the U.S. Constitution; Declare that Defendants violated Plaintiffs’ rights under the Americans with Disabilities Act; Enter injunctive relief and/or writs of habeas corpus requiring Defendants, their agents, employees, and all persons acting in concert with or on behalf of Defendants to: a. Immediately cease admissions to Saint Elizabeths Hospital; b. Issue a writ of habeas corpus ordering Respondent Chastang to release a sufficient number of patients to enable the remaining patients to practice adequate social distancing and to enable the staff to maintain the hospital in safe and healthy condition, including the provision of all necessary mental health treatment; c. Immediately take all actions within their power to reduce the patient population at Saint Elizabeths Hospital; d. Within 48 hours, conduct individual assessments of patients by the Medical Director with input from the patients’ treatment team, his/her attorney, and/or other supportive decision makers as determined by patient choice to assess the effects of the current conditions and determine
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whether other options exist in lieu of continued placement at Saint

Elizabeths Hospital. The assessment team must consider a full range of

available alternative treatment options, including discharge to a

community setting and under no circumstances should an individual be

transferred to a jail or nursing home;

e. Implement recommendations from the assessments immediately;

f. Ensure sufficient space to follow all professional guidance on social

distancing, quarantining, and isolation for infected or suspected COVID-

19 patients, including by creating auxiliary facilities and residents at the

Hospital at other District facilities or private facilities that can safely

house patients.

g. To the extent continued placement at Saint Elizabeths Hospital is the only

reasonable option, for the patients who remain at Saint Elizabeths

Hospital, provide appropriate COVID-19 intervention and care at the

Hospital with teams of medical professionals and infection experts who

can:

i

Develop, update, and implement best practices for reducing

the infection rates at Saint Elizabeths Hospital, including

providing appropriate and accessible guidance to staff and

patients;

ii Administer rapid COVID-19 tests for anyone displaying

known symptoms of COVID-19 or who has been exposed

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to someone with known symptoms or who has tested positive for COVID-19; iii Ensure segregation of confirmed and suspected COVID-19 cases; iv Determine equipment needs and immediately provide masks for any individual displaying or reporting COVID19 symptoms or exposure until they can be evaluated by a qualified medical professional or placed in quarantine; v Ensure that each patient has timely and complete access to essential hygiene; vi Provide on-site care and medical assessment, including medical care and therapy that is appropriate for their needs; vii Frequently communicate to patients to provide information about COVID-19, reducing the risk of transmission, and any changes in policies or practices; viii To the extent continued placement at Saint Elizabeths Hospital is the only reasonable option, patients must be properly quarantined and segregated per public health guidelines to prevent COVID-19 infection; h. Develop a staffing contingency plan that includes employing sufficient qualified temporary staff to ensure adequate infection control and that patients receive necessary treatment and care in light of staffing shortages;
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i. Immediately resume providing all medical and mental health treatment services as per CDC Guidelines;
j. Conduct individual assessments of patients by the Medical Director with input from the patients’ treatment team, his/her attorney, and/or other supportive decision makers as determined by patient choice to assess the effects of the stress and trauma of having experienced weeks safe, running water in the conditions described above, the impact of the current COVID19 pandemic, and the repercussions Defendants’ deprivation of appropriate mental health services has had on patients’ mental health status and determine if changes to individual patients’ treatment plans are needed;
k. Implement any changes and recommendations from the individualized assessments immediately;
l. Develop and adopt an appropriate Emergency Preparedness Plan with input from community members and the District’s protection and advocacy organization
m. Frequently sanitize all Saint Elizabeths Hospital facilities; n. Conduct independent testing to ensure that the water is safe for all uses; o. Conduct regular, independent testing to ensure that the water is safe; p. Order Defendants to develop and adopt an appropriate Emergency Water
Supply Plan with input from community members and the District’s protection and advocacy organization; and
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q. by law; and

Appoint an independent monitor with medical expertise to ensure compliance with these conditions, and provide the monitor with unfettered access to medical units, confidential communication with individuals in and out of quarantine, and surveillance video of public areas of the facilities; Award to Plaintiffs their reasonable attorney’s fees and costs, as provided
Grant the Plaintiffs such other relief as the Court deems just.

Dated April 16, 2019

Respectfully submitted,
/s/ John A. Freedman John A. Freedman (D.C. Bar No. 453075) Tirzah S. Lollar (D.C. Bar No. 497295) Brian A. Vaca (D.C. Bar No. 888324978) ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Avenue, N.W. Washington, D.C. 20004 (202) 942-5000 John.Freedman@arnoldporter.com Tirzah.Lollar@arnoldporter.com Brian.Vaca@arnoldporter.com
Kaitlin Banner (D.C. Bar No. 1000436) Margaret Hart (D.C. Bar No. 1030528 ) Hannah Lieberman (D.C. Bar No. 336776 ) Jonathan Smith (D.C. Bar No. 396578 ) WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 700 14th Street, NW, Suite 400 Washington, DC 20005 Phone: (202) 319-1000 Fax: (202) 319-1010 kaitlin_banner@washlaw.org margaret_hart@washlaw.org hannah_lieberman@washlaw.org jonathan_smith@washlaw.org
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Scott Michelman (D.C. Bar No. 1006945) Arthur B. Spitzer (D.C. Bar No. 235960) Michael Perloff (D.C. Bar No. 1601047) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF THE DISTRICT OF COLUMBIA 915 15th Street NW, Second Floor Washington, D.C. 20005 (202) 457-0800 smichelman@acludc.org aspitzer@acludc.org mperloff@acludc.org
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 Case 1:19-cv-03185-RDM Document 60 Filed 04/25/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENZO COSTA, et al., Plaintiffs,
v. BARBARA J. BAZRON, et al.,
Defendants.

Civil Action No. 19-3185 (RDM)

ORDER For reasons set forth in the accompanying Memorandum Opinion, Dkt. 59, the Court concludes that Plaintiffs have established that they are entitled to emergency injunctive relief. Accordingly, it is hereby ORDERED that Plaintiffs’ motion for a temporary restraining order, Dkt. 39, is GRANTED in part and DEFERRED in part. It is further ORDERED that: 1. Exposed Patients. To the extent medically and psychiatrically practicable, Defendants
shall isolate individuals who have been exposed to COVID-19 in individual quarantine spaces and shall minimize movement outside of the isolation space. When it is necessary for isolated individuals to leave their rooms, Defendants shall require (to the extent possible and consistent medically and psychiatrically practicable) that the isolated patient wear a medically suitable mask. Likewise, when it is necessary for another person to enter a room occupied by an isolated patient, that person shall (to the extent medically and psychiatrically practicable) wear suitable protective equipment, including a medically suitable mask. The parties shall meet and confer and submit to the Court a joint status report on or before April 28 at 2:00 pm setting forth their respective positions about when to discontinue isolation of exposed persons. In any event, isolation of a patient who has

Case 1:19-cv-03185-RDM Document 60 Filed 04/25/20 Page 2 of 3
been exposed to COIVD-19 may discontinued after the patient receives two negative tests at least 24 hours apart or if the patient is not symptomatic for 14 days. 2. Symptomatic Patients. Defendants shall conduct clinical evaluations prior to releasing patients suspected of having COVID-19 (i.e., symptomatic patients) from isolation, and, if “a higher clinical suspicion” for COVID-19 exists, Defendants shall administer test-based criteria of two negative tests, at least 24 hours apart, prior to discontinuing isolation. In determining whether the patient presents a higher clinical suspicion for COVID-19, Hospital staff shall consider the prevalence of the virus among patients and staff at the Hospital, among other factors. If testing is not readily feasible, Defendants shall administer the CDC recommended non-test-based strategy. 3. Reporting. Defendants shall provide the Court and Plaintiffs’ counsel with reports twice a week, commencing on Tuesday, April 28, 2020 and Friday, May 1, 2020, detailing their efforts to comply with this Order. The report should identify every symptomatic patient removed from isolation and the basis for the decision to remove that individual from isolation and shall indicate the number of exposed patients subject to isolation. 4. Expiration. This Order shall expire at 11:59 pm on May 8, 2020, unless extended for good cause before that time. 5. Security. The Court finds that the posting a bond is not required given the nature of the relief ordered herein.
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Case 1:19-cv-03185-RDM Document 60 Filed 04/25/20 Page 3 of 3 6. Persons and Entities Bound. This Order is binding on Defendants, their officers, agents,
servants, employees, and attorneys, and on other persons acting in concert with them. SO ORDERED.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge Date: April 25, 2020
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENZO COSTA, et al., Plaintiffs,

v.

Civil Action No. 19-3185 (RDM)

BARBARA J. BAZRON, et al., Defendants.

MEMORANDUM OPINION This case is brought by three patients indefinitely and involuntarily civilly committed to the District of Columbia’s care and housed at Saint Elizabeths Hospital (“Saint Elizabeths” or “Hospital”), a public psychiatric facility, and a putative class of Saint Elizabeths patients. Dkt. 50. Plaintiffs bring claims against the District of Columbia and two employees of Saint Elizabeths in their individual capacities (and in one case, also in his official capacity), alleging that Defendants’ response to the COVID-19 pandemic has fallen short of their constitutional obligations to ensure that Plaintiffs and the putative class members are held in safe conditions. Before the Court is Plaintiffs’ motion for a temporary restraining order (“TRO”), which is opposed. Dkt. 39. For the reasons explained below, the Court will grant the motion in part and defer it in part.
I. BACKGROUND A. Saint Elizabeths, and COVID-19
Saint Elizabeths is the District of Columbia’s “only public psychiatric facility for individuals with serious and persistent mental illness who need intensive inpatient care to

Case 1:19-cv-03185-RDM Document 59 Filed 04/25/20 Page 2 of 18
support their recovery.” Dkt. 50 at 7 (Am. Compl. ¶ 25); Dkt. 39-2 at 2 (Jones Decl. ¶ 7). Saint Elizabeths generally admits three categories of patients: (1) civilly committed patients, including those committed voluntarily and involuntarily; (2) pre-trial patients being detained to determine their competency to stand trial or to have their competency restored; (3) and post-trial patients who have been adjudicated not guilty by reason of insanity. See Dkt. 39-1 at 14; Dkt. 42-1 (Candilis Decl. ¶ 3). The Hospital has the capacity to house 292 patients in 12 different units and has an average population of 275 patients. Dkt. 42-2 at 3 (Gontang Decl. ¶ 6). The “patients are housed in one of 11 units[] or houses,” with each unit consisting of “bedrooms and commons spaces.” Dkt. 50 at 8 (Am. Compl. ¶ 33). “Each unit at the Hospital generally houses no more than 27 patients, and has bedrooms, common living areas, bathrooms and showering facilities, and dining areas.” Dkt. 42-2 at 3 (Gontang Decl. ¶ 6). The twelfth unit, the Therapeutic Learning Center (“2TR”), is generally used to conduct group therapy, art therapy, music therapy, treatment planning meetings, and other forms of congregate activities. Dkt. 50 at 4 (Am. Compl. ¶ 9). According to Defendants’ counsel, the current population has been reduced to approximately 200 patients due to the pandemic. Apr. 24, 2020 Hrg. Tr. (Rough at 31).
The COVID-19 pandemic is, by now, well-known to all, and the Court will only briefly recount its history and impact as it relates to this motion. COVID-19 a highly infectious disease that has caused a global pandemic, prompting the President and governors across the nation to declare states of emergency. See United States v. Harris, No. 19-cr-356, 2020 WL 1503444, at *2 (D.D.C. Mar. 27, 2020). The Mayor of the District of Columbia has ordered the closure of all nonessential business and has issued a stay-at-home order, and both Congress and the D.C. Council have passed various forms of emergency legislation. See, e.g., Mayor’s Order 2020-054 (Mar. 30, 2020).
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The Centers for Disease Control and Prevention (“CDC”) has issued guidance to help long-term care facilities (“LCTFs”) mitigate the spread of the virus and to “keep patients and residents safe[.]” CDC, Coronavirus Disease 2019 Nursing Homes & Long-Term Care Facilities (“CDC, LTCF Guidance”), at 1 (Apr. 2, 2020), available at https://tinyurl.com/yaaj8kk6 (last accessed Apr. 23, 2020); see Dkt. 55-1 (CDC, Preparing for COVID-19: Long-term Care Facilities, Nursing Homes, Apr. 15, 2020); CDC, Key Strategies to Prepare for COVID-19 in Long-term Care Facilities (LTCFs) (“CDC, LTCFs Key Strategies”) (Apr. 15, 2020), available at https://tinyurl.com/y95jrlcx (last accessed Apr. 23, 2020). Although the LTCF guidance is targeted at nursing homes and similar facilities, all agree that it provides relevant guidance for Saint Elizabeths. See Dkt. 42-2 at 3 (Gontang Decl. ¶ 5) (“Saint Elizabeths is unique among healthcare facilities in that it is foremost a psychiatric treatment facility but also houses pre- and post-trial patients and shares similarities with long-term care nursing facilities.”); Dkt. 42 at 10– 11 (citing to LTCF guidance and recommendations as the standards the Hospital has conformed its practices and policies to). The CDC has also issued recommendations for health care settings more generally, which the long-term care facility resources incorporate by reference. See, e.g., Dkt. 54-1 (CDC, Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings); Dkt. 54-2 (CDC, Discontinuation of Transmission-Based Precautions and Disposition of Patients with COVID-19 in Healthcare Settings (Interim Guidance)). Finally, the CDC has issued guidance regarding managing the pandemic at correctional and detention facilities. See Dkt. 55-2 (CDC, Interim Guidance on Management of Coronavirus Disease 2019 ((COVID-19) in Correctional and Detention Facilities). Each party has, at times, pointed to portions of that guidance in support of it positions.
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As relevant here, the CDC recommends that long-term care facilities actively screen all residents and anyone entering the building for fever and symptoms. CDC, LCTF Key Strategies. To prevent the spread of the virus, “group activities and communal dining” should be canceled, social distancing should be enforced among residents, and residents should “wear a cloth face covering . . . whenever they leave their room or are around others.” Id. If a resident is symptomatic, the facility should isolate him and implement appropriate “transmission-based precautions.” Id. Those precautions include isolating patients who are suspected of having or who have tested positive for COVID-19 “in private rooms with the door closed and with private bathrooms (as possible).” Dkt. 54-1 at 2. If the patient is COVID-19 positive, she should remain in isolation until either (1) fever has subsided “without the use of fever-reducing medications,” the patient experiences “[i]mprovement in respiratory symptoms,” and the patient has received “at least two consecutive” negative tests at least “24 hours apart,” or (2) “[a]t least 3 days (72 hours) have passed since recovery” (meaning “resolution of fever without the use of feverreducing medications and improvement in respiratory symptoms ”) and “[a]t least 7 days have passed since first symptoms appeared.” Dkt. 54-2 at 3 (emphasis in original). A patient who has not tested positive but who is “suspected of having COVID-19” may instead be released “upon having negative results from” one test, but, if “a higher level of clinical suspicion . . . exists,” the facility must “consider maintaining [medical isolation]” and performing “a second test.” Id. at 4. B. Procedural History
Plaintiffs, Enzo Costa, Vinitia Smith, and William Dunbar, are three patients who are indefinitely and involuntarily civilly committed to the District’s care and housed at Saint
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Elizabeths. Dkt. 36-1 at 6–7 (Am. Compl. ¶¶ 19–22).1 Plaintiffs originally brought this putative class action in October 2019, asserting due process and Americans with Disability Act (“ADA”), 42 U.S.C. §12131 et seq., claims relating to a September 2019 water outage at Saint Elizabeths that interrupted their recommended therapy and subjected them to allegedly unhealthy conditions. Dkt. 1. In light of the ongoing COVID-19 crisis, Plaintiffs filed an emergency motion seeking leave to amend their complaint, and, after conducting a hearing and providing Defendants with the opportunity to file an opposition brief, the Court granted that motion. See Dkt. 48; Dkt. 36; Dkt. 40; Minute Entry (Apr. 17, 2020).
According to the amended complaint, Saint Elizabeths has failed to protect the health and safety of its patients from the virus by departing from applicable CDC guidelines in several key ways. Most pressingly, Plaintiffs alleged that the Hospital was not testing all symptomatic patients; not segregating patients who have been exposed or potentially exposed to the virus from other residents; see Dkt. 50 at 21–25 (Am. Compl. ¶¶ 78–108); and “cohorting” patients who have tested positive or are suspected of having the virus in groups rather than medically isolating them in private rooms, see Apr. 22, 2020 Hrg. Tr. (Rough at 4–5). As of April 23, 2020, 111 individuals associated with the Hospital (68 staff and 43 patients) have tested positive for the virus, and, tragically, seven patients and two staff members have died. Dkt. 53; Dkt. 58; Apr. 22, 2020 Hrg. Tr. (Rough at 3) (indicating that, as of this morning, one of the named plaintiffs has tested positive). Thus, the Hospital’s mortality rate is magnitudes higher than the mortality rate for the District as a whole. See Dkt. 53 at 3; Apr. 22, 2020 Hrg. Tr. (Rough at 45).
1 The Court dismissed the claims of a fourth named plaintiff, Stefon Kirkpatrick, pursuant to Federal Rule of Civil Procedure 41(a)(1)(ii). See Dkt. 43; Minute Order (Apr. 22, 2020).
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Plaintiffs also challenge the adequacy of Defendants’ response to the virus on several other scores, including that the Hospital is not adequately enforcing social distancing, see Dkt. 46 at 9–10; not taking steps to ensure that the patients receive the mental health care they require (such as by providing remote substitutes for group and individual therapy); not updating mental health treatment plans to account for pandemic-related stress, see Dkt. 50 at 25–26 (Am. Compl. ¶¶ 109–16); not maintaining adequate staffing levels; id. at 26–27 (Am. Compl. ¶¶ 117–22); continuing to admit new patients; failing adequately to screen and to quarantine newly admitted patients; and discriminating against Plaintiffs and the putative class members in violation of the ADA by failing to release eligible patients into community-based programming, see id. at 46 (Am. Compl. ¶ 228). Overall, Plaintiffs allege that the Hospital’s inadequate response to the COVID-19 pandemic, like Defendants’ response to the September 2019 water outage, has fallen short of its obligation to ensure that Plaintiffs and other patients at the hospital are held in humane conditions and continue to receive appropriate mental health treatment. See id. at 27–28 (Am. Compl. ¶¶ 123–29); Dkt. 1.
On April 22, 2020, the Court held a telephonic hearing on the pending motion for a temporary injunction. Given the ongoing and escalating emergency at the Hospital, the Court asked counsel for Plaintiffs to identify the actions that, in their view, need to be redressed “on the most pressing basis.” Apr. 22, 2020 Hrg. Tr. (Rough at 63). Counsel indicated that the top priority was that the Hospital follow CDC guidance on “properly quarantining and isolating” patients, meaning that the Hospital should “stop cohorting suspected people” and that it should, instead, place patients who have tested positive, who are suspected of having the virus, or who have been exposed to the virus in private rooms for 14 days (or earlier under the appropriate guidelines), rather than placing them in group settings. Id. (Rough at 43–47). Counsel also
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stressed the importance of following CDC guidelines recommending that persons in quarantine or isolation make appropriate use of face masks. Id. (Rough at 49). Finally, counsel emphasized that the Hospital should test all symptomatic patients. See id. (Rough at 44).
Recognizing both the need for expedition and the expertise of the Hospital’s medical and psychiatric staff and the parties’ experts, the Court directed that the parties meet and confer within 24 hours regarding these top priority issues and file a joint status report within hours of their meeting, notifying the Court whether the parties agree or disagree on these issues and explaining the basis for any disagreement. Id. (Rough at 65). The Court further directed that the parties include their medical and psychiatric experts in those discussions. As the Court understood the parties’ respective positions, all agreed that the Hospital should follow CDC guidelines. Thus, the goal of the conferral process was to determine whether there are any pressing areas where the Hospital is not doing so and to identify any disagreements between the parties regarding what the guidelines require or what the Hospital is doing.
On April 23, 2020, the parties file the required joint status report. Dkt. 53. As reflected in that report, the parties now agree that individuals who have tested positive or who are suspected of having COVID-19 “should be housed in their own rooms with bathrooms, and their movements outside their rooms should be kept to a minimum.” Id. at 2. The parties were also able to resolve a confusion over their different uses of the term “cohorting.” Dkt. 53 at 7. But several points of disagreement remain. Most notably, the parties disagree about (1) whether a patient who has been exposed to someone who has tested positive for the virus, but who is not symptomatic, should be medically isolated, and (2) whether medically isolated patients should be released to the general population after only one negative test. Id. at 4. Plaintiffs also have
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lingering concerns about the adequacy of the Hospital’s policies regarding social distancing, mask use, and the provision of psychiatric care during the crisis. Id.
The next day, the Court held another telephonic hearing to address the urgent issues as to which the parties still disagreed. Counsel for the plaintiffs identified two. The first is Defendants’ “practice[] of keeping together in the same units patients who have and have not been exposed” to the virus, and the second is the Hospital’s practice of releasing positive or suspected patients back into the general population after a single negative test. See Apr. 24, 2020 Hrg. Tr. (Rough at 2). As to the first issue, counsel for the Plaintiffs stressed that the matter is not merely abstract and that one of the named plaintiffs had been placed in a “congregate setting” with other patients that “may have been exposed” and that (as the parties learned early this morning) he has now tested positive for the virus. Id. (Rough at 2–3). When the Court asked counsel for the Defendants whether the Hospital agreed that sound “professional judgment means that [a person exposed to the virus] ought to be closely monitored and . . . should be isolated to the extent practicable,” he responded that “the Hospital would agree with that [proposition], [and] . . . that’s exactly what they’re doing.” Id. (Rough at 35–36) (emphasis added).
As to the second issue, counsel for the Plaintiffs conceded that there is no “guidance saying two clean tests [are needed] for people who are exposed” and that the “heart of the dispute” was whether persons who are “suspected” of having the virus—that is, those who are symptomatic—should be released from isolation after a single negative test. Id. (Rough at 36– 37). In Plaintiffs’ view, CDC guidance recommends that those suspected of having virus (like those with positive test results) remain in isolation until they receive two negative tests, at least 24 hours apart. Id. (Rough at 37–38). Defendants disagree and take the position that the
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applicable CDC guidance requires only one negative test result before “the quarantined individual should be released from quarantine restrictions.” Id. (Rough at 41). Counsel for Defendants reported, however, that the Hospital has acquired on-site testing capacity that “should make [the double-test] approach” feasible to implement and that his understanding is that there are ample supplies for testing. Id. (Rough at 42–43). That equipment, which Counsel reported would be imminently placed in use, will provide results within approximately fifteen minutes. See Apr. 22, 2020 Hrg. Tr. (Rough at 17).
II. LEGAL STANDARDS A TRO is “an extraordinary form of relief.” Banks v. Booth, No. 20-cv-849, 2020 U.S. Dist. LEXIS 68287, at *7 (D.D.C. Apr. 19, 2020). A TRO is analyzed using the same “factors applicable to preliminary injunctive relief,” and “may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. (quoting Sibley v. Obama, 810 F. Supp. 2d 309, 310 (D.D.C. 2011)). To obtain a TRO, a movant “must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014). When seeking such relief, “the movant has the burden to show that all four factors, taken together, weigh in favor of the injunction.” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)) (internal quotation marks omitted). Before the Supreme Court’s decision in Winter v. NRDC, 555 U.S. 7 (2008), courts in this circuit applied a “sliding-scale” approach under which “a strong showing on one factor could make up for a weaker showing on another.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). Since Winter, the D.C. Circuit has hinted on several occasions that “a likelihood of success is an
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independent, free-standing requirement,” id. at 393 (quotation omitted), but it “has not yet needed to decide th[e] issue,” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 7 (D.C. Cir. 2016). “In light of this ambiguity, the Court shall consider each of the [four] factors and shall only evaluate the proper weight to accord the likelihood of success if the Court finds that its relative weight would affect the outcome.” Banks, 2020 U.S. Dist. LEXIS 68287, at *7.
III. ANALYSIS A. Likelihood of Success On The Merits
The Court first considers whether Plaintiffs have established a likelihood of success on the merits. For present purposes, the relevant question is whether Defendants’ response to the COVID-19 pandemic violates Plaintiffs’ rights under the due process clause of the Fifth Amendment.
To start, the Court concludes that the operative standard is the one set forth in Youngberg v. Romeo, 457 U.S. 307 (1982). In Youngberg, “the Supreme Court held that the State [or, in this case, the District of Columbia] has an affirmative duty to ensure the safety and general wellbeing of an involuntarily committed mental patient.” Harvey v. D.C., 798 F.3d 1042, 1050 (D.C. Cir. 2015). Civilly committed persons have a constitutional right, protected by the due process clauses of the Fifth and Fourteenth Amendments, in the government meeting that obligation. Youngberg, 457 U.S. at 319. To determine if that right has been violated, a court must balance the plaintiff’s interests “against any relevant state interests, including fiscal constraints and administrative burdens.” LaShawn A. v. Dixon, 762 F. Supp. 959, 994 (D.D.C. 1991), aff’d and remanded sub nom. LaShawn A. by Moore v. Kelly, 990 F.2d 1319 (D.C. Cir. 1993) (citing Youngberg, 457 U.S. at 321). To assess whether the government has met its obligation, the Court must consider “whether [it has] exercised professional judgment in choosing what action
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to undertake.” Id. “[L]iability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Id. (quoting Youngberg, 457 U.S. at 323).
Defendants concede, and Plaintiffs agree, that courts have generally applied Youngberg’s “professional judgment” standard to cases concerning civilly committed psychiatric patients. See Dkt. 42 at 31 (citing Jordan v. District of Columbia, 161 F. Supp. 3d 45, 57 (D.D.C. 2016), aff’d, 686 F. App’x 3 (D.C. Cir. 2017)). Plaintiffs also rely on the line of cases analyzing the substantive due process rights of pre-trial detainees, arguing that they can establish a constitutional violation if “the Defendants knew or should have known that the [Hospital] conditions posed an excessive risk to [Plaintiffs’] health.” Dkt. 46 at 12 (quoting Banks v. Booth, No. 1:20-cv-849-CKK, ECF No. 51 (Apr. 20, 2020)). To the extent Plaintiffs argue that the pretrial detainee standard governs because the proposed class includes pre-trial detainees, that contention is premature. Although Plaintiffs have filed a motion to certify a class consisting of all persons confined at the Hospital, including pre- and post-trial detainees, the Court need not rule on that motion at this point in the litigation. The alleged violations impact or threaten to impact each of the named plaintiffs and the requested relief, which is Hospital-wide, is necessary to redress their risk of serious injury. If Plaintiffs, instead, mean that the standard also applies to civilly committed individuals, they have cited no authority for that proposition and, under the pressing time constraints of this motion, the Court has found none. In any event, as a practical matter and on the fact of this case, there is little difference between the two standards. See Porter v. Illinois, 36 F.3d 684, 688 (7th Cir. 1994), abrogated on other grounds, Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S. 613, (2002) (“[P]rofessional judgment, like
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recklessness and gross negligence, generally falls somewhere between simple negligence and intentional misconduct.”).
Applying the Youngberg test, Defendants argue that “Plaintiffs cannot point to any decisions that were not based on professional judgment” because Saint Elizabeths has exercised appropriate judgment in deciding how to respond to the pandemic. Dkt. 42 at 37. Plaintiffs respond that the Hospital has failed properly to implement relevant CDC guidance and that the Hospital’s departures violate their constitutional rights. To be sure, Plaintiffs acknowledge that the Hospital is now following many CDC recommendations, but they assert that this new-found conformity happened only after they filed the motion for a TRO. Dkt. 53 at 3. And, more importantly, they contend that the Hospital is still failing to follow CDC guidance in at least two critical respects: First, the Hospital is releasing persons suspected of having the virus from medical isolation after only one negative test, rather than the recommended two tests. See Apr. 24, 2020 Hrg. Tr. (Rough at 45) (“The rub of what we’re concerned about is the idea that people who are suspected could be cleared with one test.”). Second, the Hospital is not isolating individuals who have been exposed to the virus, thus risking that those individuals infect other non-exposed patients or that they come into contact with other exposed individuals who are now carrying the virus. Dkt. 53 at 4.
As an initial matter, the Court observes that, although decisions made by professionals are “presumptively valid” under Youngberg, it is unclear whether that presumption applies here. Defendants have not identified the person or persons who have decided to implement these policies, and so the Court cannot say with any certainty that they satisfy the definition of “professional” articulated in Youngberg. To be sure, there is evidence in the record that the Hospital’s COVID-19 response is being overseen by medical professionals, including Dr.
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Richard Gontang, the Chief Clinical Officer, see Dkt. 42-2, Martha Pontes, the Chief Nurse, see 42-4, and Yi-Ling Elaine Tu, the Infection Control Coordinator, 42-5. But, even assuming, that the decisions are entitled to the presumption of validity, Plaintiffs have offered compelling evidence (on the extremely expedited schedule governing their motion for a TRO) that the challenged practices substantially depart from accepted professional standards.
According to Defendants, the Hospital has already addressed the first pressing issue that Plaintiffs raise—the alleged failure to isolate patients exposed to the virus—by treating all units as “quarantined.” See Dkt. 53-2 at 2 (“Currently, all units other than isolation units and PUI units are under quarantine”); Apr. 24, 2020 Hrg. Tr. (Rough at 13–14). The problem with that assertion is that Defendants’ implementation of the quarantine does not satisfy CDC standards. The CDC recommends that long-term care facilities “[e]nforce social distancing among residents,” “[e]nsure all residents wear a cloth face covering . . . whenever they leave their room or are around others,” and, if the virus “is identified in the facility, restrict all residents to their rooms[.]” CDC, LCTFs Key Strategies. Plaintiffs have offered ample evidence that the Hospital has taken a less demanding approach to enforcing social distancing and mask use, that common spaces are open, and that patients are not remaining in their rooms to the extent practicable. See, e.g., Dkt. 39-6 at 1 (Costa Decl. ¶¶ 4–5); Dkt. 39-9 at 1–2 (Guzman Decl. ¶ 3); Dkt. 39-10 at 1 (Rose Decl. ¶ 5). As Plaintiffs’ counsel put it, the Hospital is “not insisting that [patients] stay in their rooms to the extent practicable, they’re not shutting down common areas or common facilities for this population. Mask use is still intermittent. Social distancing enforcement is still intermittent.” Apr. 24, 2020 Hrg. Tr. (Rough at 9). Much of Defendants’ own evidence is consistent with Plaintiffs’ narrative. Staff for the Hospital attest, for example, that, although there is enough space “for each patient to practice social distancing if he or she chooses to do
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so,” it “is difficult to enforce without impinging on patient autonomy.” Dkt. 42-2 at 5 (Pontes Decl. ¶ 10). Defendants also attest that, although “[a]ll patients have access to face masks,” “[s]ome . . . choose to wear masks, others do not.” Id. at 6 (Pontes Decl. ¶ 6). And they assert that, although patients “in quarantine units are encourage to stay in their rooms as much as possible,” they are “not prohibited from using common areas.” Dkt. 53-2 at 2.
The Court is cognizant that there may be sound medical reasons why some of these measures should not be stringently enforced in the context of a psychiatric hospital and that the (fast evolving) record is not developed on this point. Counsel for the Defendants has noted on multiple occasions that the Hospital must balance the unique mental health needs of the patients confined at the Hospital, and the Court understands that need. Nor is it the Court’s place to micromanage the Hospital’s hour-by-hour and patient-by-patient medical and psychiatric decisions. But Defendants have offered no explanation why patients who have been exposed to the virus are not more closely monitored to ensure that they are isolated to the extent consistent with patient health and well-being. Defendants acknowledge that persons who have been exposed should be closely monitored and placed in “a separate observation area,” Dkt. 53-3 at 2, and that accepted professional judgment is that such persons should be isolated to the extent practicable. Apr. 24, 2020 Hrg. Tr. (Rough at 35–36). And yet the evidence currently before the Court indicates the Hospital is not robustly implementing those measures. As Plaintiffs’ counsel indicated, this is not a mere abstract disagreement; the risks to Plaintiffs are immediate and manifest. If exposed to a contagious patient, Plaintiffs may—and in one case, already has— contract the virus.
The Hospital’s policy of “immediately” returning patients suspected of having the virus to the general population after a single negative test result is also contrary to accepted
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professional standards. See Dkt. 42-3 at 29; Dkt. 53 at 4; id. at 11 (“If the test results are negative, the patient is returned to the general housing unit.”). As a threshold matter, the parties disagree about the relevant CDC guidance. Defendants say that the guidance applicable to healthcare settings should govern, Dkt. 54-2, while Plaintiffs posit that CDC guidance directed at detention facilities sets forth the operative standard, Dkt. 55-2. In Plaintiffs’ view, the latter is more apt because the Hospital is a congregate setting where patients are involuntarily detained; by contrast, in a typical hospital setting, patients may voluntarily depart and self-quarantine at home. See Apr. 24, 2020 Hrg. Tr. (Rough at 7).
The Court need not decide this issue, however. Even assuming that the guidance Defendants rely upon is the operative one, they are not following it. Although that guidance states that a patient suspected of having the virus can be released “upon having negative results from at least one test,” it also says that, if there is a “higher level of clinical suspicion,” it is recommended that the patient remain in isolation and that a “second test” be performed. Dkt. 542. That guidance is consistent, moreover, with the expert testimony offered by the Plaintiffs. Plaintiffs offer declarations from Dr. Marc Stern, a “board-certified internist specializing” and former Assistant Secretary of Health Care for the Washington State Department of Corrections. Dkt. 39-3 at 1 (Stern Decl. ¶ 1). Dr. Stern attests that symptomatic patients should not be released from isolation “based solely on one [negative] test” because “[t]here is a high rate of false negatives and decisions should be made based on a full clinical evaluation of the patient.” Dkt. 46-2 at 2 (Stern. Suppl. Decl. ¶ 7). Defendants have offered no evidence that they are evaluating patients who have received a negative test for “clinical suspicion” prior to release, and Defendants own evidence shows that they are releasing patients “immediately” to the general housing units after a single negative test. Dkt. 42-3 at 29. Nor have Defendants explained why
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all symptomatic patients at the Hospital do not meet the higher-level-of-clinical-suspicion benchmark, given the large percentage of infected patients and staff at Saint Elizabeths. Indeed, out of a total patient population of between 200 and 275, at least 42 patients have tested positive to date, along with at least 68 staff members. Even under the guidance relied upon by Defendants, the Hospital’s protocol for returning symptomatic patients to the general population is not consistent with CDC standards.
The Court acknowledges that additional development of the record might show that Defendants are taking sufficient precautions not evident on the current record. The Hospital’s response, moreover, is evolving as the crisis continues to evolve, and, indeed, the Hospital has indicated that it is increasing its testing capacity and has expressed an intention to abide by the CDC guidelines. On the current record, however, the Court finds that Plaintiffs have established a likelihood of success on the merits with respect to the two priority issues that it raises for purposes of this emergency motion. B. Irreparable Harm
Plaintiffs contend that the deprivation of constitutional rights, even for minimal period of time, “unquestionably constitutes irreparable injury.” Dkt. 39-1 at 34 (quoting Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009). And, Plaintiffs further point to the imminent risk to their health, which also constitutes an irreparable injury. Defendants do not dispute either point and, instead, argue that Plaintiffs will not suffer irreparable injury because “Saint Elizabeths is already taking the overwhelming majority of the measures [P]laintiffs request.” Dkt. 42 at 25. But Plaintiffs have continued to pursue the issues addressed in this opinion precisely because Saint Elizabeths has declined to modify its protocols even after meeting and conferring with Defendants to discuss their concerns. Given the gravity of
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Plaintiffs’ imminent risk of injury, and the pressing need to act to prevent that risk, the Court finds that Plaintiffs have satisfied the irreparable harm requirement for issuance of a temporary restraining order. See AlJoudi v. Bush, 406 F. Supp. 2d 13, 20 (D.D.C. 2005) (“Facing requests for preliminary injunctive relief, courts often find a showing of irreparable harm where the movant’s health is in imminent danger.”) C. Balance of Hardships and Public Interest
The Court moves to the final factors to be considered in granting a temporary restraining order—the balance of the equities and the public interest. In this case, where the government is a party to the suit, the harm to defendants and the public interest merge and “are one and the same, because the government’s interest is the public interest.” Pursuing America’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016) (emphasis in original). The Court finds that the public interest weighs in favor of granting temporary injunctive relief.
As a starting point, “[i]t is always in the public interest to prevent the violation of a party’s constitutional rights.” Simms v. District of Columbia, 872 F. Supp. 2d 90, 105 (D.D.C. 2012) (internal quotation marks omitted). Beyond protecting Plaintiffs’ rights, ordering Defendants to take precautions to lower the risk of infections for Plaintiffs also benefits the public health. As the record in this case demonstrates, continued spread of the virus at Saint Elizabeths threatens the health and lives of patients and staff.
Of course, the Court recognizes that there is also a “public interest in permitting the government discretion to carry out its authorized functions,” Banks, 2020 U.S. Dist. LEXIS 68287, at *48, and that interest is acute where medical and psychiatric staff must make prompt, individualized, and informed decisions about the health and well-being of their patients. But here, the burden on that interest is minimal. Defendants have already expressed a desire to
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follow the CDC guidelines, and the Court’s order will simply require them to make good on that aspiration. Nor is this a case where the ordered relief will require the Defendants to expend resources acquiring means to comply with the order. Just a few days ago, Defendants received a “rapid test machine” that will “facilitate more testing.” Dkt. 53-2 at 2. Moreover, by mitigating the spread of infection, “Defendants actually lessen the healthcare burden that they will be facing in the weeks and months to come.” Banks, 2020 U.S. Dist. LEXIS 68287, at *48. Finally, the Court will tailor its order to ensure that it does not interfere with the ability of medical and psychiatric professionals to make decisions on-the-spot about the health and well-being of their patients. The Court, accordingly, finds that the balance of the equities and the public interest weigh in favor of granting injunctive relief.
CONCLUSION For the reasons explained above, the Court will grant in part and defer in part Plaintiffs’ motion for a temporary restraining order. A separate order will issue.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge Date: April 25, 2020
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 Case 1:19-cv-03185-RDM Document 83 Filed 05/11/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENZO COSTA, et al., Plaintiffs,
v. BARBARA J. BAZRON, et al.,
Defendants.

Civil Action No. 19-3185 (RDM)

ORDER For reasons set forth in the accompanying Memorandum Opinion, Dkt. 82, the Court concludes that good cause exists to extend and to expand the Temporary Restraining Order, Dkt. 60. Accordingly, it is hereby ORDERED that: 1. Exposed Patients. To the extent medically and psychiatrically practicable, Defendants
shall isolate individuals who have been exposed to COVID-19 in individual quarantine spaces and shall minimize movement outside of the isolation space. When it is necessary for isolated individuals to leave their rooms, Defendants shall require (to the extent possible and consistent medically and psychiatrically practicable) that the isolated patient wear a medically suitable mask. Likewise, when it is necessary for another person to enter a room occupied by an isolated patient, that person shall (to the extent medically and psychiatrically practicable) wear suitable protective equipment, including a medically suitable mask. Isolation of a patient who has been exposed to COIVD-19 may discontinued after the patient receives two negative tests at least 24 hours apart or if the patient is not symptomatic for 14 days.

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2. Symptomatic Patients. Defendants shall conduct clinical evaluations prior to releasing patients suspected of having COVID-19 (i.e., symptomatic patients) from isolation, and, if “a higher clinical suspicion” for COVID-19 exists, Defendants shall administer test-based criteria of two negative tests, at least 24 hours apart, prior to discontinuing isolation. In determining whether the patient presents “a higher clinical suspicion for COVID-19, Hospital staff shall consider the prevalence of the virus among patients and staff at the Hospital, among other factors. If testing is not readily feasible, Defendants shall administer the CDC recommended non-test-based strategy.
3. Staff Assignment Restrictions. To the extent medically and psychiatrically practicable, health care personnel and other staff shall be assigned daily to only one unit. If health care personnel work overtime, they should be assigned to the same unit they have been working on throughout the day.
4. Point prevalence surveys. By May 15, 2020, Defendants shall complete a baseline point prevalence survey (“PPS”) to determine the spread of COVID-19 among staff and, to the extent medically and psychiatrically possible, residents at Saint Elizabeths Hospital. A single test for each staff member or patient is sufficient for purposes of the PPS. If a health care personnel is found to be COVID positive, she must be excluded from the Hospital for 14 days and until she is found negative on two consecutive tests, at least 72 hours apart. By May 22, 2020, Saint Elizabeths shall complete a second PPS. Defendants shall provide updates to the Court and Plaintiffs’ counsel regarding its efforts to complete point prevalent surveys on May 16, 2020, and May 23, 2020.
5. Data Management. It is recommended that the D.C. Department of Health immediately assign a dedicated individual with appropriate epidemiological skills to oversee and be responsible for the collation and analysis of all testing data, and all data pertaining to
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infection prevention and control policies and procedures. It is recommended that this individual work with on-site personnel already responsible for these functions and would, based on the data, advise Hospital administrators regarding any indicated changes in policy and other appropriate courses of action. 6. Reporting. Defendants shall provide the Court and Plaintiffs’ counsel with reports twice a week, commencing on Tuesday, May 12, 2020 and Friday, May 15, 2020, detailing their efforts to comply with this Order. The report should identify every symptomatic patient removed from isolation and the basis for the decision to remove that individual from isolation and shall indicate the number of exposed patients subject to isolation. 7. Expiration. This Order shall expire at 11:59 pm on May 22, 2020. 8. Security. The Court finds that the posting a bond is not required given the nature of the relief ordered herein. 9. Persons and Entities Bound. This Order is binding on Defendants, their officers, agents, servants, employees, and attorneys, and on other persons acting in concert with them. SO ORDERED.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge Date: May 11, 2020
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENZO COSTA, et al., Plaintiffs,

v.

Civil Action No. 19-3185 (RDM)

BARBARA J. BAZRON, et al., Defendants.

MEMORANDUM OPINION Before the Court are the parties’ respective positions on extending the temporary restraining order (“TRO”), Dkt. 60, which is set to expire at 11:59 pm tonight. Plaintiffs propose that the Court extend the TRO until May 25, 2020 and also request that the Court expand the TRO in three respects. Dkt. 74 at 1. Defendants oppose extending or expanding the TRO. Id. at 6. For the reasons explained below, the Court finds that there is good cause to extend it until May 22, 2020 and to expand it in two respects. The Court further encourages—but does not at this time order—Defendants to implement amici’s other recommendations to the extent possible and consistent with the health and well-being of the patients (and staff) at Saint Elizabeths Hospital.
I. BACKGROUND The Court has recounted much of the relevant factual background and procedural history at length in its earlier memorandum opinion, see Costa v. Bazron, 2020 U.S. Dist. LEXIS 73944, at *2–14 (D.D.C. Apr. 25, 2020) (“Costa I”), and will only summarize and add to that background as necessary here.

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The last time this case was before the Court, Plaintiffs had moved for a TRO seeking immediate redress with respect to a number of allegedly unsafe and unconstitutional conditions at Saint Elizabeths Hospital resulting from the rapid spread of COVID-19 among the patients and staff at the hospital. Dkt. 39. In the week that followed, the Court held a telephonic hearing to address the Plaintiffs’ motion; requested that Plaintiffs identify the actions that, in their view, needed to be redressed on the most pressing basis; ordered that the parties meet and confer, along with the parties’ experts, regarding those high priority concerns; and held a second telephonic hearing to address the high priority concerns as to which the parties disagreed. See Costa v. Bazron, 2020 U.S. Dist. LEXIS 73944, at *2–14.
Upon consideration of the parties respective positions, the briefs, and all of the relevant evidence before it at that time, the Court granted Plaintiffs’ motion for a TRO in part and deferred ruling on the motion in part, Dkt. 59, and entered a TRO, Dkt. 60. The TRO, which remains in effect at this hour, requires the hospital (1) to isolate individuals who have been exposed to COVID-19 in individual quarantine spaces to the extent medically and psychiatrically practicable; (2) to conduct clinical evaluations prior to releasing patients suspected of having COVID-19 from isolation, and, if higher clinical suspicion exists, to administer the CDCrecommended, two-test release protocol; and (3) to provide the Court and Plaintiffs’ counsel with periodic reports detailing their efforts to comply with the Order. Id. at 1–2. The TRO is set to expire at 11:59 pm tonight unless extended for good cause. Id. at 2.
Three days after the Court issued the TRO, it held a status conference and directed the parties to meet and confer as to the appointment of a third party (or parties) to conduct the factfinding necessary for further proceedings. Minute Entry (Apr. 28, 2020). The parties identified three potential candidates: Dr. Ronald Waldman, an infectious disease expert with vast
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experience on advising public health entities; Joan Hebden, a specialist in infection prevention and control; and Dr. Patrick Canavan, a licensed psychologist, and former CEO of Saint Elizabeths, who could advise on the mental health treatment aspects of Plaintiffs’ claims. Dkt. 65 at 2. Because the parties had some disagreement about the proper scope of the fact-finding inquiry, the Court held another telephonic status conference to address the disputed issues. Minute Entry (May 1, 2020). After hearing from the parties, the Court appointed Dr. Ronald Waldman, Joan Hebden, and Dr. Patrick Canavan as amici curiae to conduct an investigation and to provide information to the Court relating to a list of questions relevant to Plaintiffs’ claims. Dkt. 68.
On May 7, 2020, the Court held a further status conference at which the Court-appointed amici presented their preliminary findings and recommendations. Dkt. 77. That same day, the Court extended the TRO until May 11, 2020, at 11:59 pm, finding that good cause existed because, among other things, amici’s written report would not be finalized until May 11, 2020, and the Court would “need an opportunity to determine whether the TRO should be extended and/or modified in light of that report.” Minute Order (May 7, 2020). The Court was further convinced, based on the preliminary report, that good cause existed for extending the TRO until May 11, 2020. The next day, the parties filed a joint status report setting forth their respective positions on whether the TRO should be further extended or expanded. Dkt. 74.
Amici have now filed their reports with the Court summarizing their findings and recommendations. Dkt. 78; Dkt. 81. Those reports are remarkably thorough, balanced, and considered, particularly given the very short timeframe amici had to investigate and to report on the fast-evolving circumstances at Saint Elizabeths. Amici, moreover, were uniformly impressed
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with the cooperation that the received from the staff and management at the hospital. The Court extends its gratitude to amici and the hospital’s staff and management for their mutual efforts.
II. ANALYSIS A TRO expires at the earlier of 14 days after the time of its entry or the date the court sets, “unless before that time, the court, for good cause, extends [the TRO] for a like period or the adverse party consents to a longer extension.” Fed. R. Civ. P. 65(b)(2). Although there is little case law on what constitutes “good cause,” “a showing that the grounds for originally granting the [TRO] continue to exist” is sufficient, Wright & Miller, 11A Fed. Prac. & Proc. Civ. § 2953 (3d ed. Apr. 2020 Update), and courts have also found “good cause” where more time is needed fully to consider the parties’ arguments and motions or “where the moving party need[s] additional time to prepare and present its preliminary injunction,” SEC v. Arisebank, No. 18-cv186, 2018 U.S. Dist. LEXIS 234235, at *3 (N.D. Tex. Mar. 9, 2018) (collecting cases). Here, Plaintiffs request that the TRO be extended until the Court “renders a decision on [their] forthcoming motion for a preliminary injunction.” Dkt. 74 at 2. Although Plaintiffs acknowledge that the TRO has “helped slow the spread of the virus” at Saint Elizabeths, id. at 3, they also stress that the “number of [COVID-19 positive] patients and staff . . . and the number of fatalities has continued to climb,” id. at 2. They note, for example, that, as of May 6, 2020, “the number of COVID-19 positive individuals has doubled from 36 to 72 . . ., and the number of patients who have died has more than tripled, from 4 to 13.” Id. at 2. Since filing the joint status report, moreover, the Court has learned that an additional patient has died, bringing the death toll among a relatively small population to 14. Plaintiffs also ask that the TRO be expanded in three ways. They contend that, although the hospital’s “practices have improved since the Court entered the TRO,” Defendants are still
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“failing to meet professional standards” in at least three key respects identified by the amici at the May 7, 2020, status conference. Id. at 5. First, although the hospital has tested all patients and staff, it has not conducted a “point prevalence testing” survey, as recommended by the CDC. Id. Second, the hospital has not fully restricted cross-unit staff movement—more specifically, Plaintiffs contend that staff should not mix between COVID-19 positive and COVID-19 negative units. Id. Third, Plaintiffs ask the Court to order that the District of Columbia Department of Health assign a professional epidemiologist to assist the hospital with data management. Id. Defendants oppose any extension or expansion of the TRO. In their view, further emergency relief is not warranted because “the Hospital’s practices and protocols on infection control have been and continue to be in line with sound professional judgment.” Id. at 6.
Having considered the parties’ respective positions, the final reports submitted by amici, Dkt. 81; Dkt. 78, and the entirety of the record, the Court finds that good cause exists to extend the TRO and to expand it in certain limited respects. As a starting point, the Court finds that good cause exists to extend the TRO because the parties need time to brief, and the Court needs time to consider, the forthcoming motion for a preliminary injunction. See Arisebank, 2018 U.S. Dist. LEXIS 234235, at *3. But even setting aside that reason, the conditions at the hospital warrant the extension of the TRO. The Court recognizes, to be sure, that the hospital has taken an array of measures to combat the spread of infection and that the pandemic presents a formidable challenge that is dynamic and ongoing. See Dkt. 81 (observing that the hospital “has made a remarkable effort to cohort patients who have known infection with COVID-19”). But the infection control measures currently at issue were adopted shortly after the Court issued the TRO, and the good faith and conscientious compliance with the Court’s order does not demonstrate that extension of the order is unwarranted. The Court previously found that the
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hospital’s pre-TRO efforts fell short in the specified respects, see Dkt. 59, and no new evidence suggests that the Court’s finding was incorrect. To the contrary, amici have endorsed the measures specified in the existing TRO and have affirmed that those measures are required as a matter of sound professional judgment.
Moreover, as Plaintiffs observe, the public health crisis at the hospital is ongoing—“[a]s recently as May 9, 2020, . . . tests from six patients not house on COVID [positive] units and one staff member were reported . . . positive for viral RNA.” Dkt. 81 at 2. As the Court previously observed, this crisis presents an imminent threat to Plaintiffs and, since the Court issued the TRO, the spread of the virus has continued to have tragic consequences for patients at the hospital. The Court has never doubted, and does not currently doubt, that the staff and management at the hospital are committed to protecting the health and well-being of their patients. Nor does the Court doubt that the task of managing and mitigating the spread of the disease at a facility like Saint Elizabeths presents extraordinary challenges. But, despite that commitment, Defendants’ efforts, and the fact that the hospitals’ staff and management have done many things very well, amici report that the hospital is not adhering to CDC guidelines in at least two key respects.
First, although the hospital has embarked on a point prevalence survey (“PPS”) of all patients, it has not included staff in its PPS as recommended for facilities with suspected or confirmed cases. Dkt. 81-1 at 6. The CDC guidance identified by amici explains the importance of including staff in the PPS. “[W]hen COVID-19 cases are identified in a [long-term care facility], there are often [Health Care Practitioners (‘HCP’)] with asymptomatic [COVID-19] infection present as well,” and, as a result, “HCP likely contribute to [the] introduction and further spread” of COVID-19. CDC, Testing for Coronavirus (COVID-19) in Nursing Homes
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(Apr. 30, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/hcp/nursing-homestesting.html. As a result, the CDC recommends that “PPS of HCP should be considered in facilities with suspected or confirmed cases of COVID-19” as part of a test-based prevention strategy. Id. Consistent with the CDC’s experience and given the hospital’s extensive efforts at cohorting, amici posit that staff is the most likely source of continued infection spread at Saint Elizabeths. See Dkt. 77 at 10–12. Amici therefore stress that it was important to “at least be in conformance with [CDC] guidelines, if not even going beyond them on the conservative side” as the crisis at the hospital is “not just starting now,” but rather has “been allowed to develop to where it is at this point. Id. at 12. Thus, Amici recommend that the hospital conduct a PPS that includes both patients and staff and that the hospital re-test, en masse, at regular intervals. See Dkt. 18-1 at 6.
Second, amici emphasize that infection control requires reducing “traffic within the hospital”—specifically, reducing staff movement between COVID positive and COVID negative units. Dkt. 77 at 10–11. Amici were “emphatic in saying that while in the past this has not been respected, there should be no mixing of staff between these units. Id. Consistent with the relevant CDC guidance, Amici recommend that staff “be assigned daily to only one unit” and if staff work overtime, that it be “on the same unit they have been working throughout the day.” Dkt. 81-1 at 5; see also Dkt. 54-1 at 10 (CDC recommending that facilities assign dedicated HCP to COVID positive or suspected units, meaning “HCP are assigned to care only for these patients during their shift”).
Because Defendants agree that the hospital should follow CDC recommendations, see, e.g., Dkt. 54-2, and because amici have underscored the reasons why it is important for the facility to abide by these recommendations, the Court concludes that the hospital’s unexplained
7

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failure to abide by the CDC guidance in this respect is not based on the exercise of professional judgment. For this reason, and in light of the Court’s previously analysis, Costa I, 2020 U.S. Dist. LEXIS 73944, at *27–29 (explaining that Plaintiffs have established irreparable harm, and that the balance of hardships and public interest favor injunctive relief), the Court finds that good cause exists to expand the scope of the TRO to require the hospital to abide by these two recommendations.
In contrast to those two measures, the Court is unpersuaded that, at least on the present record, Defendants’ failure to assign an epidemiologist to the facility warrants emergency relief. At the May 7, 2020, status conference, amici reported “that it would be a good idea for the Department of Health to assign an epidemiologist to the facility” to help with data management and that the District is apparently considering that recommendation. Dkt. 77 at 16. The final written report, likewise, recommends that the Court order the District “to assign a dedicated individual with appropriate epidemiological skills to oversee and be responsible for the collation and analysis of all testing data, and all data pertaining to infection prevention and control policies and procedures.” Dkt. 81 at 9. On the present record, what is not clear to the Court, however, is whether failing to do so would constitute a “substantial departure” from professional judgement or whether it is merely a departure from a preferred or optimal response. Like amici, the Court urges Defendants to take this measure, but the Court is unconvinced that Defendants’ failure to do so constitutes a violation of Plaintiffs’ constitutional rights. Similarly, although not yet addressed in the parties’ briefs, the Court also urges Defendants immediately to implement amici’s other, significant recommendations to the extent consistent with patient health and wellbeing.
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Having resolved issues of substance, the last issue is duration. It is well-settled that 28 days is the outer limit for the time that a TRO can remain in place without consent of the enjoined party, regardless of whether the TRO was issued with or without notice. See H-D Michigan, LLC v. Hellenic Duty Free Shops S.A., 694 F.3d 827, 844 (7th Cir. 2012); see also Sampson v. Murray, 415 U.S. 61, 87 (1974) (agreeing with a lower court’s conclusion that “a temporary restraining order continued beyond the time permissible under Rule 65 must be treated as a preliminary injunction, and must conform to the standards applicable to preliminary injunctions”). Applying that limit here, and because Defendants do not consent to any further extension, the TRO cannot be extended beyond May 22, 2020, at 11:59 pm.
CONCLUSION For the reasons explained above, the Court will extend the TRO until May 22, 2020 at 11:59 pm and will expand the TRO in the limited respects discussed above. A separate order will issue.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge Date: May 11, 2020
9

 
 Case 1:19-cv-03185-RDM Document 87 Filed 05/14/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENZO COSTA, et al., Plaintiffs,
v. DISTRICT OF COLUMBIA, et al.,
Defendants.

Case No. 1:19-cv-3185 (RDM)

PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
Plaintiffs, by and through counsel, and pursuant to Rule 65 of the Federal Rules of Civil
Procedure, Local Rules 7 and 65.1, and the Court’s May 11, 2020 Minute Order, hereby move for
a temporary restraining order. A statement of points and authorities is support of the motion and
a proposed order accompanies this motion.
Dated: May 14, 2020
Respectfully submitted,
/s/ John A. Freedman John A. Freedman (D.C. Bar No. 453075) Tirzah S. Lollar (D.C. Bar No. 497295) Brian A. Vaca (D.C. Bar No. 888324978) ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Avenue, N.W. Washington, D.C. 20004 (202) 942-5000 John.Freedman@arnoldporter.com Tirzah.Lollar@arnoldporter.com Brian.Vaca@arnoldporter.com
Kaitlin Banner (D.C. Bar No. 1000436) Margaret Hart (D.C. Bar No. 1030528 ) Hannah Lieberman (D.C. Bar No. 336776 )

Case 1:19-cv-03185-RDM Document 87 Filed 05/14/20 Page 2 of 2
Jonathan Smith (D.C. Bar No. 396578 ) WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 700 14th Street, NW, Suite 400 Washington, DC 20005 Phone: (202) 319-1000 Fax: (202) 319-1010 kaitlin_banner@washlaw.org margaret_hart@washlaw.org hannah_lieberman@washlaw.org jonathan_smith@washlaw.org
Scott Michelman (D.C. Bar No. 1006945) Arthur B. Spitzer (D.C. Bar No. 235960) Michael Perloff (D.C. Bar No. 1601047) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF THE DISTRICT OF COLUMBIA 915 15th Street NW, Second Floor Washington, D.C. 20005 (202) 457-0800 smichelman@acludc.org aspitzer@acludc.org mperloff@acludc.org
CERTIFICATE OF COUNSEL
Pursuant to Local Rule 7(m), counsel hereby certifies that counsel have discussed the preliminary injunction motion in good faith, including discussions on May 5 and May 8. Defendants oppose the relief sought in the motion.
/s/ John A. Freedman John A. Freedman
2

Case 1:19-cv-03185-RDM Document 87-1 Filed 05/14/20 Page 1 of 46
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENZO COSTA, et al., Plaintiffs,
v. DISTRICT OF COLUMBIA, et al.,
Defendants.

No. 1:19-cv-3185 (RDM)

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION

Case 1:19-cv-03185-RDM Document 87-1 Filed 05/14/20 Page 2 of 46

TABLE OF CONTENTS

Page(s)

INTRODUCTION ......................................................................................................................1

STATEMENT OF FACTS..........................................................................................................2

1. Saint Elizabeths Hospital and Its Patients .............................................................2 2. The 2020 COVID-19 Pandemic and Its Threat to Saint Elizabeths .......................2 3. Conditions at Saint Elizabeths Hospital Before and After the TRO.......................4
a. Medical Isolation and Quarantine Procedures..................................................4 b. Screening and Testing.....................................................................................5 c. Distribution of Masks .....................................................................................6 d. Psychiatric Treatment during the Outbreak .....................................................7

ARGUMENT ..............................................................................................................................8

1. Plaintiffs Are Likely to Succeed on the Merits of Their Claims ..........................10
a. The Defendants Have Substantially Departed from Accepted Professional Judgments in Their Efforts to Control and Prevent COVID-19 Infections......12
b. The Defendants Have Substantially Departed from Accepted Professional Judgment in Their Provision of Mental Health Care ......................................25
2. Plaintiffs Will Suffer Irreparable Harm Unless Defendants Are Enjoined from Following a Policy that Will Allow them to be Housed in Unconstitutional Conditions in the Future.....................................................................................33
3. Enjoining Defendants from Failing to House and Treat Involuntarily Committed Persons in Constitutionally Adequate Conditions Will Not Substantially Injure Defendants or Others..........................................................................................35
4. A Preliminary Injunction Will Serve the Public Interest. ...................................36

REQUESTED REMEDY..........................................................................................................36

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TABLE OF AUTHORITIES
Page(s)
Cases
Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014) .............................................................................................9
Banks v. Booth, No. CV 20-849(CKK), 2020 WL 1914896 (D.D.C. Apr. 19, 2020) .....................................10
Brown v. District of Columbia, 928 F.3d 1070 (D.C. Cir. 2019) ..................................................................................... 31, 32
Brown v. Plata, 563 U.S. 493 (2011) ..................................................................................................... passim
Chatman-Bey v. Thornburgh, 864 F.2d 804 (D.C. Cir. 1988) (en banc)................................................................................9
Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017) ..................................................................................................11
Feliciano v. Gonzales, 13 F. Supp. 2d 151 (D.P.R. 1998)........................................................................................23
Gordon v. Holder, 632 F.3d 722 (D.C. Cir. 2011) ...............................................................................................8
Gray Panthers Project Fund v. Thompson, 273 F. Supp. 2d 32 (D.D.C. 2002) .......................................................................................34
Harvey v. District of Columbia, 798 F.3d 1042 (D.C. Cir. 2015) ...........................................................................................10
**Helling v. McKinney, 509 U.S. 25 (1993) ....................................................................................................... passim
Hernandez v. County of Monterey, 110 F. Supp. 3d 929 (N.D. Cal. 2015)..................................................................................24
Hudson v. Hardy, 424 F.2d 854 (D.C. Cir. 1970) ...............................................................................................9
Hutto v. Finney, 437 U.S. 678 (1978) ........................................................................................................ 9, 37
ii

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Jackson v. Indiana, 406 U.S. 715 (1972) ............................................................................................................28
Joy v. Healthcare CMS, 534 F. Supp. 2d 482 (D. Del. 2008) .....................................................................................24
Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015) ........................................................................................................10
Lamprecht v. F.C.C., 958 F.2d 382 (D.C. Cir. 1992) .............................................................................................36
LaShawn A. v Dixon, 762 F. Supp. 959 (D.D.C. 1991) ..........................................................................................11
M.J. v. District of Columbia, 401 F. Supp. 3d 1 (D.D.C. 2019) .........................................................................................31
Mays v. Dart, No. 20 C 2134, 2020 WL 1987007 (N.D. Ill. Apr. 27, 2020) ...............................................34
Milliken v. Bradley, 433 U.S. 267 (1977) ............................................................................................................37
Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) ...........................................................................................33
O’Connor v. Donaldson, 422 U.S. 563 (1975) ............................................................................................................30
Olmstead v. LC by Zimring, 527 U.S. 581 (1999) ...................................................................................................... 31, 32
Shimon v. Dep’t of Corr. Servs. for N.Y., No. 93-cv-3144 (DC), 1996 WL 15688 (S.D.N.Y. Jan. 17, 1996) ........................................24
Steimel v. Wernert, 823 F.3d 902 (7th Cir. 2016) ...............................................................................................31
U.S. Dep’t of Justice v. Daniel Chapter One, 89 F. Supp. 3d 132 (D.D.C. 2015) ............................................................................... 2, 9, 34
United States v. Ore. State Med. Soc., 343 U.S. 326 .......................................................................................................................10
United States v. W.T. Grant Co., 345 U.S. 629 (1953) .................................................................................................... 2, 9, 34
iii

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**Youngberg v. Romeo, 457 U.S. 307 (1982) ..................................................................................................... passim
Constitutional Provisions & Statutes Fifth Amendment ................................................................................................................ 10, 11 Eighth Amendment ................................................................................................................. 5, 4 42 U.S.C. § 1983.........................................................................................................................9 Americans with Disabilities Act ......................................................................................... passim 28 CFR § 35.130(d) ..................................................................................................................31 District Human Rights Act. D Code § 2-1402.21(a)...................................................................32 Other Authorities CTRS. DISEASE CONTROL & PREVENTION, Cases in U.S., .............................................................2 CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2019,
Decontamination and Reuse of Filtering Facepiece Respirators ...................................... 7, 22 CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2019, Hand
Hygiene Recommendations..................................................................................................22 CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2019, Interim
Guidance on Management of Coronavirus Disease 2019 in Correctional and Detention Facilities ......................................................................................................... 4, 16 CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2019, Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 in Health Care Settings .......................16 CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2019, Preparing for COVID-19: Long-Term Care Facilities, Nursing Homes...................................... 4, 16, 18 CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2019, Testing for Coronavirus in Nursing Homes ....................................................................................... 5, 20 Dist. of Columbia Dep’t of Human Human Servs., Human Services Agency COVID-19 Case Data.................................................................................................. 3, 4, 13 U.S. Substance Abuse and Mental Health Services Administration, Interim Considerations for State Mental Hospitals....................................................................... 7, 18 Hao Yao, et al., Patients with mental health disorders in the COVID-19 epidemic ......................3
iv

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INTRODUCTION Patients at Saint Elizabeths remain at heightened and unnecessary risk from COVID-19. As the Court-appointed amici warned three days ago, “as of the date of the filing of this report on May 11, 2020, [the Hospital] continues to experience ongoing transmission of SARS-CoV-2.” ECF 81 at 2. Amici identified numerous areas in which Defendants, despite earnest efforts, failed to comply with professional standards of care, including the Centers for Disease Control and Prevention (“CDC”) Guidelines. This violates the Constitution. Amici have also confirmed that there has been an extraordinary curtailment of mental health care at the facility—including a 98% drop in the amount of treatment provided. ECF 78 at 5, 15. Amici also report that the Hospital has failed to implement its plan for telehealth or other alternative treatment, and 90% of individual plans include treatments that the Hospital has suspended. Id. at 16-18. This fails to comply with professional standards and violates the Constitution. While Defendants have reduced the patient population, amici report that as of May 6, there are over 50 patients on the “ready for discharge” list. ECF 78 at 8. The continued detention of patients the Hospital has deemed “ready for discharge,” where such patients face heightened risk of exposure to COVID-19, fails to comply with professional standards, and violates the Constitution and the Americans with Disabilities Act (“ADA”). This Court should convert the Temporary Restraining Order (ECF 83) into a Preliminary Injunction. While the Hospital has modified certain practices in response to this lawsuit, these measures have not been enough. Even if Defendants had fully complied with CDC Guidance— which they have not—or the terms of the TRO, the “court’s power to grant injunctive relief survives discontinuance of the illegal conduct, and because the purpose is to prevent further violations, injunctive relief is appropriate when there is a cognizable danger of recurrent violation.”

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U.S. Dep’t of Justice v. Daniel Chapter One, 89 F. Supp. 3d 132, 143 (D.D.C. 2015) (quoting United States v. W.T. Grant Co., 345 U.S. 629 (1953)), aff’d, 650 F. App’x 20 (D.C. Cir. 2016). It is for this reason that courts around the country have recognized that temporary orders protecting individuals in congregate settings from substandard conditions must be extended.
STATEMENT OF FACTS 1. Saint Elizabeths Hospital and Its Patients Saint Elizabeths Hospital is the District’s only public psychiatric facility for individuals with serious and persistent mental illness who need intensive inpatient care to support their recovery. ECF 59 at 1-2; ECF 81 at 3. It also provides mental health evaluations and care to patients committed by the courts. ECF 81 at 3. Prior to the COVID-19 crisis, Saint Elizabeths had an average patient population of 275, ECF 59 at 2, which has now been reduced to approximately 199. ECF 81 at 4. It has 786 staff. ECF 81 at 3. 2. The 2020 COVID-19 Pandemic and Its Threat to Saint Elizabeths As the Court is well aware, the COVID-19 pandemic is a serious threat to public health. ECF 59 at 2, ECF 39-1 at 6-9. The CDC estimates that as of May 13, 2020, there are 1,364,061 confirmed cases and 82,246 confirmed deaths in all 50 states and the District of Columbia.1 COVID-19 is highly contagious. Declaration of Dr. Marc Stern, M.D., M.P.H. (“Stern Decl.”) (ECF 39-3) ¶ 8; Declaration of Dr. Johnathan L. Golob, M.D. (“Golob Decl.”) (ECF 39-4) ¶ 13. Medical and mental health professionals have consistently made clear that individuals with mental health disorders require priority attention in this kind of emergency. Golob Decl. (ECF 39-
1 CTRS. DISEASE CONTROL & PREVENTION, Cases in U.S., https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/cases-in-us.html. (last visited May 14, 2020).
2

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4) ¶ 14. Mental health disorders like those experienced by Plaintiffs can increase the risk of infections, including pneumonia, a leading cause of hospitalization and death among those infected with COVID-19.2 Congregate settings like Saint Elizabeths enable and facilitate the rapid spread of COVID-19 infection. Stern Decl. (ECF 39-3) ¶ 13; Golob Decl. (ECF 39-4) ¶ 13.
When patients are housed in close quarters, the risks of spread are greatly, if not exponentially, increased. Stern Decl. (ECF 39-3) ¶ 12; Golob Decl. (ECF 39-4) ¶ 14. Because people — including staff and contractors —constantly cycle in and out of Saint Elizabeths and some new patients are being admitted (as required by orders of the D.C. Superior Court), there is an ever-present risk that new carriers will bring the virus into the facility. 5/7 Tr. 7, 24-25 (risk from new admissions), 11 & 24 (risk from staff); ECF 81-1 at 1-2 (new admissions), 5 (staff).
On April 1, 2020, one patient and five staff members at St. Elizabeths were confirmed to be COVID-19 positive.3 As of April 16, 2020, when the Plaintiffs filed their amended complaint seeking relief related to the COVID-19 outbreak at the Hospital, at least 33 patients, as well as at least 51 of the hospital’s staff, had tested positive for COVID-19, and at least four patients had died after contracting COVID-19. See ECF 39-1 at 11 & n. 30-31.
After expedited proceedings, the Court found that the conditions at the Hospital violated Plaintiffs’ due process rights and therefore issued a Temporary Restraining Order on April 25, 2020. ECF 59 & 60. The TRO required discrete changes to Defendants’ practices regarding isolation and release from isolation, as well as reporting on compliance efforts. ECF 60. The Court
2 See Hao Yao, et al., Patients with mental health disorders in the COVID-19 epidemic, The Lancet, Vol. 7 Issue 4 at e21 (Apr. 1, 2020), https://www.thelancet.com/pdfs/journals/lanpsy/PIIS2215-0366(20)30090-0.pdf. 3 Dist. of Columbia Dep’t of Human Servs., Human Services Agency COVID-19 Case Data, https://coronavirus.dc.gov/page/human-services-agency-covid-19-case-data (last accessed May 14, 2020).
3

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then appointed as amici curiae three experts to investigate and report to the Court about conditions at the Hospital. ECF 68. In response to the experts’ reports (ECF 78, 81 & 81-1) and with the numbers of cases and of deaths among the patient population rising even after the TRO was entered, on May 11 the Court extended and expanded the TRO to require further testing and the reduction of staff movement among different treatment units. ECF 82 & 83.
As of May 13, 2020, at least 79 patients, as well as at least 84 staff, had tested positive for COVID-19.4 An additional 56 patients were reported to be in quarantine due to exposure or symptoms consistent with COVID-19.5 At least 13 patients and one staff member have died after contracting COVID-19.6
3. Conditions at Saint Elizabeths Hospital Before and After the TRO a. Medical Isolation and Quarantine Procedures
When there are COVID-19 cases in a congregate facility, the CDC recommends grouping ill residents with dedicated health care professionals, ECF 81-1 at 4-5, and medically isolating patients who may have been exposed.7 When Plaintiffs moved for a TRO, Saint Elizabeths had established only one unit with seven beds to quarantine COVID-19 patients. Guzman Decl. (ECF 39-9) ¶ 3a. While that motion was pending, it established a second COVID-19 positive unit, and a “Patients Under Investigation” unit. Tu Decl. (ECF 42-5) ¶ 7. As this Court found, however, Defendants’ quarantining practices and their standard for determining when to release individuals
4 Dist. of Columbia Dep’t of Human Servs., Human Services Agency COVID-19 Case Data, https://coronavirus.dc.gov/page/human-services-agency-covid-19-case-data (last accessed May 14, 2020). 5 Id. 6 Id. 7 CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2019 Nursing Homes & Long-Term Care Facilities, ECF 55-1; CTRS. DISEASE CONTROL & PREVENTION, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), ECF 55-2.
4

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from isolation did not satisfy CDC standards. ECF 59 at 13-16. The resulting risk to Plaintiffs was “immediate and manifest.” ECF 59 at 14.
The Hospital currently has four COVID positive units, seven additional quarantine units, a “Patients Under Investigation” unit, and two units for patients not suspected of having been exposed to COVID-19. ECF 81-1 at 2-4. As amici note, there is considerable evidence that Defendants are still not satisfying CDC standards and “maintaining the integrity [of the known infection, exposed, and symptomatic patients] has proven to be challenging.” ECF 81 at 4. As Dr. Waldman summarized on May 7, the Hospital’s efforts to quarantine and group individuals with similar status after the TRO had been executed “obviously imperfectly.” May 7 Tr. 8. See also Ex. 1 (Decl. of Ieshaah Murphy (“Murphy Decl.”) ¶ 4 (describing “Client A” using the communal bathrooms and watching TV and playing video games with other residents while awaiting COVID-19 test results, which turned out to be positive).
b. Screening and Testing As discussed in the Court’s May 11 order, the CDC guidance for nursing homes states that “the first step of a test-based prevention strategy should ideally be a point prevalence survey (PPS) of all residents and all HCP [health care professionals] in the facility.”8 See ECF 82 at 6-7. When Plaintiffs moved for a TRO, patients were not being tested for COVID-19, even when they displayed characteristic symptoms of the virus, and Defendants reported having conducted only 31 tests. Costa Decl. (ECF 39-6) ¶ 13; Dunbar Decl. (ECF 39-7) ¶ 8; Smith Decl. (ECF 39-8) ¶¶ 8, 11; Tu Decl. (ECF 42-5) ¶ 11; Murphy Decl, ¶ 4.
8 CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2019, Testing for Coronavirus in Nursing Homes, ECF 55-1.
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Since the TRO was entered, Defendants conducted 87 tests of patients quarantined on the seven quarantine units on May 4-5. ECF 81 at 4. Twenty-one patients on these units refused testing. Id. The Hospital has not been ensuring that staff are tested; rather that testing staff at the facility as part of the virus management strategy, the Defendants have referred staff who choose to be tested to external testing sites. May 7 Tr. 21-22. Amici report that only 100 of the 786 staff have been tested. ECF 81-1 at 3, 6.
In extending and expanding the TRO on May 11, the Court found that Defendants’ failure to test staff and failure to limit staff’s movements among the treatment units contravened CDC guidance and failed the professional judgment standard. ECF 82 at 6-8.
c. Distribution of Masks When there are cases in a facility, the CDC recommends that the facility should implement universal use of facemasks for health care professionals, encourage patients to remain in their rooms, and encourage patients to wear face masks and perform social distancing when they leave their rooms.9 As the Court recognized in granting the TRO, at the time Plaintiffs filed for the TRO, Defendants had not provided masks to all patients or instructed or required patients to wear masks in a manner consistent with public health guidelines. ECF 59 at 13-14. Amici reported that Defendants implemented a “universal masking requirement” on April 15, ECF 81 at 5, and that most patients and all staff were observed as complying. ECF 81 at 6, 8. Amici also noted, however, that the staff’s reuse of masks was not in accordance with CDC guidance and presented a
9 Id.
6

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“contamination risk.” May 7 Tr. 30, 34. The CDC guidance provides that when masks are reused there should be “a minimum of five days between each [mask] use.”10
d. Psychiatric Treatment during the Outbreak Guidance from the federal Substance Abuse and Mental Health Services Administration (“SAMHSA”) provides that state psychiatric hospitals like Saint Elizabeths should take steps to address the psychological impact of quarantine and the disruptions the COVID-19 virus may cause, including preserving health care system functions and taking steps to provide alternatives to in-person and group therapy consistent with CDC guidelines on infection control and increased psychological screening with “utilization of clear clinical indications and, when applicable, validated psychiatric screening instruments.” Ex. 2 (SAMHSA COVID-19 Interim Considerations for State Psychiatric Hospitals at 3-4).11 Prior to the TRO, Plaintiffs reported there had been severe curtailment of mental health care, including closing the Treatment Mall, suspended group therapy, suspended anger management classes and suspension of most competency restoration classes. Smith Decl. (ECF 39-8) ¶ 10; Costa Decl. (ECF 39-6) ¶ 9; Dunbar Decl. (ECF 39-7) ¶ 7.
10 CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2019, Decontamination and Reuse of Filtering Facepiece Respirators, https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/decontamination-reuserespirators.html. 11 U.S. Substance Abuse and Mental Health Services Administration, Interim Considerations for State Mental Hospitals, https://www.samhsa.gov/sites/default/files/covid19-interim-considerations-for-state-psychiatrichospitals.pdf. The SAMHSA guidelines recommend that facilities “preserve healthcare system functioning” and ”be aware of the psychological impact of quarantine and major disruptions to everyday life…Patients at mental health facilities are vulnerable both to the infection itself, but also to worsening anxiety, mood, or psychosis during this time. Given the uncertainty and rapid change associated with the virus, anxiety and distress should be anticipated.”
7

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Regarding mental health care, Defendants have claimed “much . . . remains unchanged during the COVID-19 emergency,” ECF 42 at 12, and “each patient unit has a shared computer” to enable teletherapy. Gongtang Decl. (ECF 42-2) ¶ 12.
To the contrary, amici report that “Between February 2020 and April 2020 there has been a dramatic decrease in the provision of mental health services at the hospital.” ECF 78 at 15 (noting that hours of reported treatments fell from 6000 in February to less than 100 in April—a 98% drop). Amici found that the Hospital’s plans for “a limited telehealth program” have “been delayed,” ECF 78 at 17, and that, even when implemented, the provision of “technology provided to individuals in care” will remain “very limited” because “each unit will get only one cart . . . which will significantly limit the number of groups which can be held.” Id. Plaintiffs have been directly impacted by the decreases in mental health services. Plaintiffs have not participated in the therapies ordered by their individual plans, including Dialectic Behavior Therapy, Anger Management, Community Training, or Women’s Coping, since the TLC was closed. Ex. 3 (Second Declaration of Vinita Smith (“Smith 2nd Decl.”)) ¶ 7, Ex. 4 (Second Declaration of Enzo Costa (“Costa 2nd Decl.)) ¶¶ 12-13; Ex. 5 (Second Declaration of William Dunbar (“Dunbar 2nd Decl.”)) ¶¶ 16-17. See also Murphy Decl. ¶ 4.
ARGUMENT To obtain a preliminary injunction, the moving party must establish that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in its favor; and (4) that an injunction is in the public interest. Gordon v. Holder, 632 F.3d 722, 724 (D.C. Cir. 2011).
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The Court has authority to order relief to remedy unconstitutional conditions, including by release. The writ of habeas corpus, which “cuts through all forms and goes to the very tissue of the structure,” Chatman-Bey v. Thornburgh, 864 F.2d 804, 807 (D.C. Cir. 1988) (en banc) provides authority for release and also to order remedies for unconstitutional conditions of confinement, as “[h]abeas corpus tests not only the fact but also the form of detention.” Aamer v. Obama, 742 F.3d 1023, 1033 (D.C. Cir. 2014) (quoting Hudson v. Hardy, 424 F.2d 854, 833 n. 3 (D.C. Cir. 1970)) (internal quotation marks omitted). The court’s remedial authority under 42 U.S.C. § 1983 is “broad, for breadth and flexibility are inherent in equitable remedies.” Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 (1971)).
The Hospital has made certain modifications to its practices since Plaintiffs filed for a TRO. While these measures have slowed the spread of COVID-19, they are not enough. As amici noted, the Hospital “continues to experience ongoing transmission of SARS-CoV-2.” ECF 81 at 2. And this Court found just three days ago that Defendants have continued to fail to exercise professional judgment consistent with CDC guidance in key respects. ECF 82 at 6-8.
While Defendants have repeatedly cited their modifications as reasons why injunctive relief should not be granted, ECF 42 at 1, 20; Apr. 22 Tr. 20; Apr. 24 Tr. 23-24 and ECF 74 at 6, 10, the “court’s power to grant injunctive relief survives discontinuance of the illegal conduct, and because the purpose is to prevent further violations, injunctive relief is appropriate when there is a cognizable danger of recurrent violation.” U.S. Dep’t of Justice v. Daniel Chapter One, 89 F. Supp. 3d 132, 143 (D.D.C. 2015) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)), aff’d, 650 F. App’x 20 (D.C. Cir. 2016). “In the context of seeking injunctive relief, once a violation is demonstrated, all that need to be shown is that there is some reasonable likelihood
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of future violations, and past unlawful conduct is highly suggestive of the likelihood of future violations.” Id. “It is the duty of the court to beware of efforts to defeat injunctive relief by protestations of repentance and reform . . . .” United States v. Ore. State Med. Soc., 343 U.S. 326, 333 (1952).
1. Plaintiffs Are Likely to Succeed on the Merits of Their Claims In issuing the TRO, the Court found that “Plaintiffs have established a likelihood of success on the merits with respect to the two priority issues”—quarantining practices and releases from medical isolation—raised at that stage. ECF 59 at 16. In extending the TRO, the Court found “the hospital’s pre-TRO efforts fell short in the specified respects, see Dkt. 59, and no new evidence suggests that the Court’s finding was incorrect.” ECF 82 at 5-6. Plaintiffs remain substantially likely to prevail on the merits. None of the patients at Saint Elizabeths are serving time after criminal conviction. Under the due process clause of the Fifth Amendment, “pretrial detainees (unlike convicted prisoners) cannot be punished at all.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2475 (2015); Banks v. Booth, No. CV 20-849(CKK), 2020 WL 1914896 at *6 (D.D.C. Apr. 19, 2020). Pretrial detainees can demonstrate that they have been “punished” if the actions taken against them are objectively unreasonable. See Kingsley, 135 S. Ct. at 2473. The government also “has an affirmative duty to ensure the safety and general well-being of an involuntarily committed mental patient.” ECF 59 at 10 (citing Harvey v. District of Columbia, 798 F.3d 1042, 1050-51 (D.C. Cir. 2015)). Due process standards for civil detainees, like those for pretrial detainees, are higher than those for individuals convicted of crimes: “[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than
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criminals whose conditions of confinement are designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982). Among the most basic rights of civil and pretrial detainees are the right to adequate medical care, Youngberg, 457 U.S. at 324 (1982), and reasonable safety in confinement, see Helling v. McKinney, 509 U.S. 25, 33 (1993) (holding that even convicted individuals may not be subjected to “a condition of confinement that is . . . very likely to cause serious illness and needless suffering.”). The right to medical care includes the right to mental health care. See Brown v. Plata, 563 U.S. 493, 506 (2011).
If the Court finds that the conditions at the Hospital have been objectively unreasonable and/or fail to ensure Plaintiffs’ safety and well-being, then Plaintiffs and putative class members— all of whom are civil or pretrial detainees—have made out a Fifth Amendment claim regardless of Defendants’ subjective intent. Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) (“[T]he Due Process Clause can be violated when an official does not have subjective awareness that the official’s acts (or omissions) have subjected the pretrial detainee to a substantial risk of harm.”). Liability exists “when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” ECF 59 at 11 (quoting LaShawn A. v Dixon, 762 F. Supp. 959, 994 (D.D.C. 1991) (in turn quoting Youngberg, 457 U.S. at 323).
Here, the record evidence—in the form of the findings presented by amici, sworn affidavits from residents in Defendants’ custody, from attorneys and investigators from PDS who have witnessed first-hand the conditions of Defendants’ facilities, and expert declarations—amply demonstrates that Plaintiffs and putative class members are facing a “substantial risk” of serious harm that is unconstitutional because they are exposed to a “serious, communicable disease.”
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Helling, 509 U.S. at 33, and because Defendants have failed to provide adequate mental health care that comports with applicable standards of professional judgment. Youngberg, 457 U.S. at 314, 323; ECF 59 at 11.
As identified by amici and the record evidence, and held by this Court, ECF 59 & 81, Defendants unconstitutionally failed and continue to fail to protect the health and safety of Plaintiffs from the risk of COVID-19 in several critical areas, all of which represent substantial departures from accepted professional judgments. Amici and the record evidence have also established that there has been an unconstitutional curtailment of mental health care, that patients systemically are not receiving the care prescribed in their treatment plans, and that the Hospital is continuing to detain more than 50 people on the “ready to release” list even though keeping them in the Hospital exposes them to an unnecessary risk of contracting COVID-19, deprives them of adequate mental health care and violates their rights under the Americans with Disabilities Act to receive treatment in the most integrated setting appropriate to their needs.
a. The Defendants Have Substantially Departed from Accepted Professional Judgments in Their Efforts to Control and Prevent COVID-19 Infections.
Defendants have unconstitutionally failed to protect the health and safety of Plaintiffs in several key areas, all of which represent substantial departures from accepted professional judgments: (i) medical isolation and quarantine of patients; (ii) the stall in the effort to reduce patient census; (iii) cross-contamination by staff; (iv) inadequate testing and virus tracking; and (v) failure of Hospital staff to follow basic hygienic practices.
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Case 1:19-cv-03185-RDM Document 87-1 Filed 05/14/20 Page 18 of 46 The interplay among these failings—each of which is well-supported by the record and is discussed separately below—helps to explain the continued increase in COVID-19 cases at the Hospital. Since the TRO was entered on April 25, the number of confirmed cases among patients has continued to climb—from 46 to 79, and the number of patients who have died has doubled— from 7 to 14.12 The following chart tracks the spread of COVID-19 among Hospital patients.
The circumstances of the post-TRO new cases reflect that (i) the isolation and quarantine measures have not complied with critical aspects of professional standards of care—as amici have found, ECF 81 at 4—leading to continued risk of exposure to patients in the “Patients Under Investigation” unit, ECF 81-1 at 3; (ii) the failure to continue to take measures to reduce head
12 Dist. of Columbia Dep’t of Human Servs., Human Services Agency COVID-19 Case Data, https://coronavirus.dc.gov/page/human-services-agency-covid-19-case-data (last accessed May 11, 2020).
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count, which undermines the effectiveness of other preventive measures, ECF 81-1 at 1-2; see
also ECF 78 at 10 (Dr. Canavan’s recommendations to facilitate reductions in head count); (iii)
there has been potential cross-contamination by staff who work on both COVID-19 positive or
suspected units and other units, ECF 81 at 4; May 7 Tr. 11; (iv) Defendants failed to implement a
comprehensive testing regime to determine appropriate quarantine of patients in wards based on
their status (positive, symptomatic/suspected, exposed, or otherwise) and otherwise track the virus
spread, ECF 81 at 3-4 & ECF 81-1 at 5-7; and (v) preventive hygienic measures have been
insufficient, May 7 Tr. 30, 34; ECF 81 at 6 (“hand hygiene audit data . . . revealed compliance to
be <80%,” ongoing use of non-alcohol sanitizer). In particular, since the TRO was entered:
• On April 30, Defendants reported new cases from individuals who had been housed in the TLC unit, which is a makeshift unit converted from a classroom. This unit had been considered COVID-negative. When testing occurred, 12 of the 17 patients tested positive. ECF 66.
• On May 7, amici reported learning of two new positive cases from Unit 1D, a unit that previously had no known exposure. May 7 Tr. 4. This unit had a “quarantine period that ended April 29, 2020” and the positive cases “represent[ed] new transmission without a defined exposure.” ECF 81 at 4. Thus amici had reason to believe that the exposed individuals “may very well have been infected by staff and not by other patients.” May 7 Tr. 11.
• On May 8, Defendants reported 4 new cases from Unit 1G. Again, there had not been prior cases on this unit. Amici have identified a potential source of exposure as Hospital staff (“a behavioral health technician”) who worked on the unit on May 4, and has subsequently tested positive. ECF 81 at 4.
• The fact that patients on the “PUI” unit “whose test results are negative are returned to the unit from which they were placed on PUI status” was also identified as a problem because such individuals may be “exposed” while in PUI and then infect their prior unit. ECF 81-1 at 3-4.
• Head count has not dropped appreciably since entry of the TRO. Based on Defendants’ census data, there were 200 patients on April 29 (the first day
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reported), and 193 on May 13 (the latest day reported).13 Amici noted that the number of discharges “has decreased notably since the middle of April,” ECF 78 at 9. Because of their likely contribution to continued spread of the disease in recent days and because of the Hospital’s failure to comply with CDC standards, each of the five conditions Plaintiffs have identified warrants continued injunctive relief, including both continuation of the relevant provisions of the TRO through the end of the COVID-19 crisis, and expansion of the conditions to comply with the recommendations of amici. (i) The Hospital’s Isolation and Quarantine Policies: Defendants have failed to adequately isolate or quarantine patients, thus exposing them to an increased risk of contracting COVID-19. Prior to the filing of this suit, the Hospital was housing individuals with COVID-19 symptoms together with non-symptomatic individuals. Costa Decl. (ECF 39-6) ¶ 6; Dunbar Decl. (ECF 39-7) ¶¶ 5(a-b), 6; Tu Decl. (ECF 42-5) ¶¶ 7-8; April 20 Tr. 30; Murphy Decl. ¶ 4. In and of itself, the Hospital’s failure to isolate and quarantine individuals with the virus or suspected of having the virus violated Plaintiffs’ constitutional rights. Cf. Helling, 509 U.S. at 34 (exposing individuals to “infectious maladies” violates the Eighth Amendment). Indeed, it was through Defendants’ practices of housing exposed and symptomatic individuals together that Plaintiff Dunbar, who had tested negative for COVID-19 as recently as March 18, tested positive on April 24. 4/24 Tr. 3-5; see also Dunbar Decl. (ECF 39-7) ¶¶ 5(a) (noting that he had been housed with four individuals who tested positive, two of whom remained on the unit after receiving positive tests), Dunbar 2nd Decl. ¶¶ 3-5.
13 Defendants’ reporting of the census numbers does not include patients who have been admitted to area hospitals. Defendants have reported seven fatalities and two new admissions since the TRO was entered. Defendants also reported 5 releases on May 13.
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Despite clear guidance from the CDC, Defendants only started a practice of “treating all units as quarantined” after the TRO motion was filed. ECF 59 at 13. As the Court noted in entering the TRO, even as revised, the Defendants’ practices still did “not satisfy CDC standards.” Id. (noting record evidence that “the Hospital has taken a less demanding approach [than the CDC recommends] to enforce social distancing and mask use, that common areas are open, and that patients are not remaining in their rooms to the extent practicable.”).
As amici note, there is considerable evidence that Defendants are still not satisfying CDC standards for separating known, symptomatic, and exposed patients. ECF 81 at 4. One basis for the TRO was Defendants’ failure to follow CDC guidance regarding quarantine, ECF 59 at 1314, and as Dr. Waldman summarized on May 7, the Hospital’s efforts to quarantine and group individuals with similar status even after the TRO had been executed “obviously imperfectly.” May 7 Tr. 8.
(ii) Persistent Patient Head Count and “Ready to Discharge” List: CDC guidance recommends measures to reduce the population of congregate settings,14 and amici emphasize that reduction of the number of patients is important because “one of the best ways to continue to move toward the elimination of the SARS-CoV-2 from the environment is to reduce the number of potential hosts. This would allow for physical distancing to be practiced to a much more
14 See, e.g., CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2019, Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 in Health Care Settings, ECF 54-1 (“If hospitalization is not medically necessary, home care is preferable if the individual’s situation allows”); CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2019, Preparing for COVID-19: Long-Term Care Facilities, Nursing Homes, ECF 55-1 (if “a facility cannot fully implement all recommended infection control precautions, residents [with known or suspected COVID-19] should be transferred to another facility that is capable of implementation”); CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2019, Interim Guidance on Management of Coronavirus Disease 2019 in Correctional and Detention Facilities, ECF 55-2 (“explore strategies to prevent over-crowding of correctional and detention facilities during a community outbreak”)
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effective extent, for better surveillance to be conducted in order to ensure appropriate
implementation of infection control measures, and for individual attention to be paid to personal
hygiene practices (masking, hand washing/sanitizing, etc.) of patients.” ECF 81-1 at 1. They
therefore urge the Hospital to “reduce patient census to the extent possible,” ECF 81-1 at 1, and
have recommended specific measures to facilitate discharge. ECF 78 at 10.
Amici noted that the Hospital had released 57 patients since mid-March, which was a
“significant accomplishment.” ECF 78 at 9; ECF 81 at 3-4. But many of these patients were
released only pursuant to court order and not because of the Defendants’ own initiative. See Ex. 6 (Superior Court May 8 Order).15 Consistent with this, amici noted, that the number of discharges
“has decreased noticeably since the middle of April,” ECF 78 at 9, and that as of May 6, “there were 56 individuals in care on [the] ‘ready to discharge’ list.” ECF 78 at 8.16
Amici have recommended a number of concrete steps to reduce the patient census. ECF
78 at 10 (including facilitating discharge planning meeting, subsidizing housing providers, and
educating community providers); see also Ex. 7, Third Declaration of Elizabeth Jones (“Jones 3rd
Decl.”) ¶¶ 8-11. As part of preliminary injunctive relief, the Court should order Defendants to
periodically report on whether they are following these recommendations and their efforts to
further reduce the patient census. Jones 3rd Decl. ¶11(b).
15The Order states in relevant part: “At the time of PDS’ initial filing one month ago, the Department of Behavioral Health reported 45 individuals at St. Elizabeths Hospital held in competence proceedings on misdemeanor charges as well as 12 individuals held at the D.C. Jail in competence proceedings on misdemeanor charges. Since then, the Court has released six individuals based on the pleadings submitted and held approximately 40 hearings where the United States government, Department of Behavioral Health and Department of Corrections were present – the latter in the cases in which defendants were incarcerated at the jail. As of today, of the original 57 misdemeanant defendants who were incarcerated at either Saint Elizabeths Hospital or the jail, only eleven individuals are held. Of those eleven, the requests of two who sought release were denied while the remaining nine, through defense counsel, represented that they no longer sought release. Of that group of eleven, nine are held at St. Elizabeths Hospital and two are held at the D.C. Jail.” 16 On May 13, Defendants reported that they had released five patients (one conditionally).
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(iii) Contamination and Cross-contamination Risk from Staff: Prior to the COVID crisis, many Hospital staff worked with patients on multiple units, and that continued to be the case as of the amici’s report on May 11. As the Court found, that is inconsistent with CDC Guidance, ECF 82 at 7-8, which provides that when a facility “dedicates space in the facility to care for residents with confirmed COVID-19” it should “assign dedicated [health care providers] to work only in this area of the facility.”17
As the Court has noted, “amici emphasize that infection control requires reducing ‘traffic within the hospital” and “were ‘emphatic in saying that while in the past this has not been respected, there should be no mixing of staff between these units,” and that “amici posit that staff is the most likely source of continued infection spread at Saint Elizabeths.” ECF 82 at 7. Amici have recommended that “HCP and other staff should be assigned daily to only one unit.” ECF 811 at 5; see also ECF 81 at 8 (“contractual nursing and environmental services staff be assigned to one unit consistently, if possible.”). As Dr. Waldman explained on May 7, the Hospital’s failure to implement this Guidance is a critical route through which the virus has spread through the facility and “Staff really needs to – we need to pay a lot more attention to it.” May 7 Tr. 10-14.
As amici elaborated in their report: “The greatest impediment to interrupting transmission of virus within the facility is the re-introduction of virus from the outside community . . . The hospital has established acceptable daily screening procedure for all visitors and staff . . . but the presence of asymptomatic or pre-symptomatic carriers of the virus can easily go undetected.” ECF
17 CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2019 Nursing Homes & Long-Term Care Facilities, ECF 55-2; see also Ex. 3 (Substance Abuse and Mental Health Services Administration, Covid19: Interim Considerations for State Psychiatric Hospitals, at 2)2.b https://www.samhsa.gov/sites/default/files/covid19interim-considerations-for-state-psychiatric-hospitals.pdf).
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Case 1:19-cv-03185-RDM Document 87-1 Filed 05/14/20 Page 24 of 46 81-1 at 5. Consistent with this observation, since the original TRO was entered, the number of positive cases among Hospital staff has increased from 69 to 84, as illustrated in the chart below.
In extending the TRO, the Court ordered the relief recommended by amici—that “to the extent medically and psychiatrically practicable, health care personnel and other staff shall be assigned to only one unit.” ECF 83 ¶ 3. In entering preliminary injunctive relief, the Court should extend these conditions through the duration of the COVID-19 crisis.
(iv) Inadequate Testing: Prior to the TRO motion, the Hospital was not timely or routinely testing patients with COVID-19 symptoms, or individuals who had been exposed to COVID-19. Costa Decl. (ECF 39-6) ¶ 13; Dunbar Decl. (ECF 39-7) ¶ 8; Smith Decl. (ECF 39-8) ¶¶ 8, 11; Tu Dec. (ECF 42-5) ¶ 11; 4/22 Tr. 52-53. For example, as amici note, it took the Hospital 12 days (from March 20 to April 1) to test and receive results for the first suspected case of COVID-19. ECF 81 at 3. After the TRO motion was filed, the Hospital announced that it had received certain
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testing units and planned to test the entire patient population, Apr. 22 Tr. 31, 32, Apr. 24 Tr. 1819, but subject to the “policy of ‘immediately’ returning patients suspected of having the virus to the general population after a single negative test result”; as the Court has previously noted, that policy is “contrary to accepted professional standards,” ECF 59 at 14-16, and ordered that Defendants conduct “clinical evaluations prior to releasing patients suspected of having COVID19 (i.e., symptomatic patients) from isolation, and if ‘a higher clinical suspicion’ for COVID-19 exists, [to] administer test-based criteria of two negative tests, at least 24 hours apart, prior to discontinuing isolation.” ECF 60 ¶ 1. That order should be continued.
Since the Court ordered this relief, there have been two important disclosures by Defendants concerning the scope of testing that indicate testing has not been universal. First, during the May 7 call, amici reported that “there was not testing internally at the facility of any staff.” May 7 Tr. 21. Second, on May 8, Defendants advised Plaintiffs for the first time that they had not tested all patients, and that slightly over 10 percent of the patient population (21 patients) had refused to be tested. ECF 81 at 4. Plaintiffs have a pending information request with the Defendants since May 10 on where these individuals are housed and what preventive measures have been taken, and may raise additional issues when this information is provided.
Beyond these issues, amici have concluded that the testing regimen adopted by Defendants does not comply with CDC guidance and is inadequate to protect the patient population. The CDC guidance for nursing homes states that “the first step of a test-based prevention strategy should ideally be a point prevalence survey (PPS) of all residents and all HCP in the facility.”18 However,
18 CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2019, Testing for Coronavirus in Nursing Homes, https://www.cdc.gov/coronavirus/2019-ncov/hcp/nursing-homes-testing.html.
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as amici note, Defendants did not conduct widespread testing until May 4-5, ECF 81 at 4, and that testing was not a point prevalence survey, because it did not cover patients in the two nonquarantine “clear” units (2A and 2B), or Hospital staff. ECF 81 at 4.
The Court has now acted, in part, upon amici’s recommendation, by ordering the Defendants to complete a baseline point prevalence survey by May 15 for staff and residents, and a second survey by May 22. ECF 83 ¶ 4. This decision was warranted. As Dr. Waldman stated there needs to be “a much, much more aggressive testing strategy than has currently been in place . . . we’re not just starting now, we’re inheriting a situation that’s been allowed to develop to where it is at this point.” May 7 Tr. 11-12; see also May 7 Tr. 22 (Ms. Hebden: “it would be ideal to sort of start from ground zero with . . . the point prevalence survey”).
Amici’s recommendation went further to provide that the Court should order, beyond an initial re-test, “repeat testing of all patients and staff who have negative test results no later than one week after the initial test.” ECF 81 at 9; see also ECF 81-1 at 6; ECF 83 ¶. In conjunction with ordering further injunctive relief, the Court should add this condition and extend it through the duration of the COVID-19 crisis.
Amici also recommend changes to the Hospital’s testing protocols for the quarantine units (that testing “be done on a weekly basis until no patients have positive test results. After all patients have tested negative ... a second test should be conducted 72 hours later”). ECF 81-1 at 3. And amici recommend renewed focus on the “patients who refuse testing.” ECF 81-1 at 7. As noted above, once Defendants furnish the requested information for the patients who have refused testing, Plaintiffs may seek further relief regarding this population.
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(v) Failure of Hospital Staff to Follow Basic Infection Control Practices: Prior to filing the
TRO, the Hospital’s use of masks and other PPE was intermittent, as was direction to engage in
“social distancing.” As the Court noted, “Plaintiffs have offered ample evidence that the Hospital
has taken a less demanding approach to enforcing social distancing and mask use, that common
spaces are open, and that patients are not remaining in their rooms to the extent practicable.” ECF
59 at 13. Amici reported some progress on these measures. May 7 Tr. 26. But amici also warned
about several troubling aspects of the implementation of infection control:
• Ms. Hebden stated that there was a “concern about how [masks are] being reused, because I think they represent a higher risk, a contamination risk potentially . . . they have been putting them in a paper bag, and then they’re reusing them until they’re damaged or soiled. Well, that is not in accordance with what the reuse of N95s would be as dictated by the CDC.” May 7 Tr. 30, 34. The CDC guidance provides that when masks are reused there should be “a minimum of five days between each use.”19
• Ms. Hebden also stated that “we really have to up the hand hygiene of all the patients, particularly the patients on the COVID unit.” Noting that “the COVID units do not have individual bathrooms,” she commented that “the bathrooms are not being cleaned every single time that a patient goes in there.” May 7 Tr. 38.
• Amici noted that the “hand hygiene audit data provided to amici revealed compliance to be <80%.” ECF 81 at 6. As Ms. Hebden observed, “I don’t think their hand hygiene data I’ve seen is as good as it should be for the staff. . . I’m recommending there should be a use of a CDC observational tool for hand hygiene, which they can modify for their purposes.” May 7 Tr. 42.
• Amici also recommended the “removal of all non-alcohol sanitizer form [sic] the building entry and patient units.” ECF 81 at 6. The CDC specifically recommends use of alcohol-based hand sanitizers, warning that it “does not have a recommended alternative to hand rub products with greater than 60% ethanol or 70% isopropanol.”20
19 CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2019, Decontamination and Reuse of Filtering Facepiece Respirators, https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/decontamination-reuserespirators.html. 20 CTRS. DISEASE CONTROL & PREVENTION, Coronavirus Disease 2019, Hand Hygiene Recommendations, https://www.cdc.gov/coronavirus/2019-ncov/hcp/hand-hygiene.html.
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In entering preliminary injunctive relief, the Court should order independent monitoring to ensure that Defendants are complying with amici recommendations and CDC guidance regarding hygiene practices for the duration of the COVID-19 crisis.
* * * In sum, ample record evidence and expert reports demonstrate that Plaintiffs and patients at the Hospital face a substantial risk of contracting COVID-19 because of the failure to adhere to professional standards. In just under two months, there are already 163 confirmed cases of COVID19 at the Hospital—84 staff and 79 patients. And, indeed, Plaintiff Dunbar has contracted the disease. This risk is intolerable. Cf. Helling, 509 U.S. at 36 (asking “whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.”). The available data from the CDC show that of Americans generally who tested positive for COVID-19, nearly a third require hospitalization, many of those require admission to the ICU, and between 1.8 and 3.4 percent of people die. From a clinical and public health perspective, COVID-19 poses a risk of serious harm to anyone who contracts it. Dr. Golob explains that this severe risk extends not only to the elderly, but to “younger and healthier people” for whom “infection of this virus requires supportive care, which includes supplemental oxygen, positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation.” Golob Decl. (ECF 39-4) ¶ 5. The very failures of Defendants in this case have been found to constitute deliberate indifference—a more stringent requirement than Plaintiffs need to meet—in like cases. For instance, in Feliciano v. Gonzales, 13 F. Supp. 2d 151 (D.P.R. 1998), the Court found that the defendant’s “inability . . . to properly isolate cases of active tuberculosis,” the “insufficient
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medical dormitory beds,” the failure to “fully screen incoming inmates,” and the failure to “provide for a sick call system that ensures access to care and that is capable of effectively handling emergencies” constituted deliberate indifference. Id. at 208–09. In other cases, the defendant’s inability to “adequately quarantine or remove inmates and support personnel known to have active tuberculosis” was found to constitute deliberate indifference. See Shimon v. Dep’t of Corr. Servs. for N.Y., No. 93-cv-3144 (DC), 1996 WL 15688 at *1 (S.D.N.Y. Jan. 17, 1996). And in Joy v. Healthcare CMS, 534 F. Supp. 2d 482 (D. Del. 2008), the Court found that the plaintiffs stated a claim under the Eighth Amendment where the warden “was aware that inmates were not thoroughly screened for disease before going into general population and that Correctional Medical Services does not have a policy in place to examine inmates before placing them into general population.” Id. at 485. As discussed above, the record is replete with Defendants’ failure to meet professional standards in a wide swath of areas, including their failed quarantine policy, failure to properly isolate staff, and ineffective screening procedures.
Defendants’ failure to protect Plaintiffs and the objective unreasonableness of their conduct can also be shown by reference to their failure to follow accepted standards. Youngberg, 457 U.S. at 321-22. The Court in Hernandez v. County of Monterey, 110 F. Supp. 3d 929 (N.D. Cal. 2015), explained that “known noncompliance with generally accepted guidelines for inmate health strongly indicates deliberate indifference to a substantial risk of serious harm.” Id. at 943. Here, amici’s findings make clear that Defendants are out of compliance in critical categories of the CDC guidelines for prevention and management of COVID-19 infection, including screening and testing policies, social distancing requirements, medical isolation and quarantine protocols, and hygiene practices. That Defendants efforts to prevent the spread of COVID-19 could qualify as
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deliberate indifference leaves no doubt that Plaintiffs are likely to carry their lesser burden of showing that Defendants’ approach substantially departed from accepted professional judgment.
b. The Defendants Have Substantially Departed from Accepted Professional Judgment in Their Provision of Mental Health Care
As amicus Dr. Patrick Canavan reported, the COVID outbreak “has changed the lives of every individual in care at the Hospital. Connections to staff and other individuals have been broken, they have lost peers to the virus and they must manage their anxiety without the benefit of many therapies upon which they were dependent. The effect on these individuals will likely be long lasting and the Hospital must be ready to address the effect for the long term.” ECF 78 at 27. Patients in both units where Plaintiff Dunbar has been housed have died of COVID-19 in the last few weeks, and he is scared. Dunbar 2nd Decl. ¶14. While Dr. Canavan commended Hospital staff, he noted significant shortcomings in the provision of mental health care, particularly the systemic failure to provide therapy or therapy alternatives called for in patient treatment plans and by the continued detention of patients who have been deemed “ready to discharge.”
(i) Curtailment of Care: Saint Elizabeths policy “requires that each individual in care have a current treatment plan, called the Individual Recovery Plan (IRP), which includes goals, objectives and interventions and which is updated at regular intervals .… [T]he target number of hours of active treatment is 15-20 hours per week depending on the individual in care’s clinical condition.” ECF 78 at 5. Saint Elizabeths’ own emergency plan provides that care should be continued as much as possible during a public health emergency. ECF 44 Ex. A at 9-10. This is consistent with guidance. Ex. 3 at 3 (Recommendation 4).
Prior to filing the TRO, each of the Plaintiffs complained about severe curtailment in their care, including the closing of the Treatment Mall, suspension of group therapy, anger management
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classes, and competency restoration classes. Smith Decl. (ECF 39-8) ¶ 10; Costa Decl. (ECF 396)¶ 9; Dunbar Decl. (ECF 39-7) ¶ 7. Plaintiffs also noted that Defendants had not taken adequate steps to compensate of the loss of this treatment, for example by using teletherapy or virtual therapy. FAC ¶ 111. Since the TRO was entered, Plaintiffs continue to report that they are not receiving appropriate mental health services. Smith 2nd Decl. ¶¶ 6-7; Costa 2nd Decl. ¶¶ 11-13 ; Dunbar 2nd Decl. ¶¶ 15- 17.
Amici confirm that there has been a dramatic curtailment of mental health services. As Dr. Canavan wrote, “[d]ata provided by the Defendants reflecting treatment since April 1st show a significant decrease, with fewer than 100 hours of treatment compared with the almost 6000 hours just two months earlier.” ECF 78 at 15. That represents a 98% drop. Amici observed that multiple patients interviewed “reported very little, if any, treatment is occurring and that there is little for them to do on the units other than watch TV.” Id. at 14. Amici also noted that 90 percent of the treatment plans reviewed contained treatment components “that are no longer operating.” ECF 78 at 16. And, they also noted that “[t]here has not been coordinated treatment delivery due to the administrative leadership decision . . . approximately 34 licensed, board-certified or accredited clinicians are currently not involved in direct care treatment but are assigned to perform non-clinical work in the Hospital,” id. at 13, “no group therapies have been provided by Rehabilitation or TLC staff since mid-March,” id. at 12, and that “group therapies have all but been eliminated during the COVID-19 outbreak,” id. at 19, event though they are the “linchpin” of treatment at the Hospital. Id. at 11.21 Plaintiff Smith has not been able to participate in
21 As Amici notes, “Group therapy is an important and proven treatment modality that provides numerous benefits for participants. It helps an individual in care realize that there are other people who have similar issues and is useful in the development of interpersonal skills. In addition, the members of the group who have similar concerns can support each other and may offer support to address a particular problem that an Individual can use to respond
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Women’s Coping or Current Events group therapies. Smith 2nd Decl. ¶ 7. Plaintiff Costa has not had access to Dialectical Behavior Therapy, Music Experience, Leisure Skills, Recreational Education, Bible Study, Movement Meditations, or Anger Management. Costa 2nd Decl. ¶¶ 1213. Plaintiff Dunbar has not had access to Community Training, Drug Education, Medication Education, or physical education classes. Dunbar 2nd Decl. ¶¶ 16-17.
Plaintiffs recognize that the crisis makes group therapy difficult; however, as amici and the Hospital’s own policies make clear, patients must continue to receive adequate mental health services, even during public health emergencies. Seven weeks into the crisis, that is still not happening. As amici explain, the Hospital’s intentions to provide alternative treatment remain largely unfulfilled. EFC 78 at 17-18. For example, Plaintiff Costa reports that the only group therapy he participates in currently is Music Group, which means only that patients choose three songs to listen to on YouTube in the unit lounge. Costa 2nd Decl. ¶ 13. Equally concerning, amici noted that the Hospital’s plans for “a limited telehealth program on each unit to allow for remote group therapy” have “been delayed.” ECF 78 at 17. Amici also stated that even when implemented, the provision of “technology provided to individuals in care” will remain “very limited” with “each unit will get only one cart . . . which will significantly limit the number of groups which can be held.” Id.
According to Elizabeth Jones, a psychiatric hospital administrator with over thirty years of experience, the level of care described by amici “falls far short of what patients need to continue their recovery from the serious mental illness that necessitated admission to a psychiatric
effectively to their own situation. It also provides a degree of socialization for individuals. It is for these reasons that treatment at Saint Elizabeths has been heavily focused on group therapies. Unfortunately, group therapies have all but been eliminated during the current COVID-19 outbreak.” ECF 78 at 18.
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institution”; and is “a clear risk to health and safety.” The failure to provide appropriate care are a “drastic deterrents to treatment, recovery and timely discharge; risk traumatizing patients and exacerbating symptoms of mental illness; and inevitably will result in long lasting, if not permanent, damage to the individuals and their efforts at recovery.” Jones 3rd Decl. ¶¶ 3-4. She concluded these circumstances violate professional standards of care and treatment.” Jones 3rd Decl. ¶ 4.
A facility “that deprives [persons] of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.” Brown v. Plata, 563 U.S. 493, 510-11 (2011). And, it is well-settled that the state must provide treatment to confined individuals not convicted of a crime in accord with the purpose of confinement. See, e.g., Jackson v. Indiana, 406 U.S. 715, 738 (1972) ("At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed”). Under Youngberg, the state must provide civilly committed individuals with, among other things, adequate mental health care. See Youngberg, 457 U.S. at 315-16, 324. Inadequate mental health care will violate a due process when it “is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such judgment.” Id. at 323.
Here, Defendants’ actions are extraordinary departures from accepted professional judgment, practice, or standards, including their own guidelines and recommendations from the Hospital’s own professionals. Amici note that the Hospital policy is to implement treatment plans, known as Individualized Recovery Plans or IRPs,and to provide 15-20 hours per week of therapeutic services. ECF 78 at 5. As early as late March, the “TLC and Rehabilitation Services
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[staff] developed schedules for on-unit programming to begin . . . with limited and identified staff who would be dedicated to a particular unit, but that plan was not approved by the Hospital administrative leaders and, as a result, no group therapies have been provided by Rehabilitation or TLC staff since mid-March.” ECF 78 at 12. Defendants are failing to provide treatment in accordance with the IRPs and, in fact, are barely providing any treatment at all. ECF 78 at 1517; see also Smith Decl. (ECF 39-8) ¶ 10; Costa Decl. (39-6) ¶ 9; Dunbar Decl. ¶ 7; Smith 2nd Decl. ¶¶ 6-7, 11; Costa 2nd Decl. ¶¶ 11-13; Dunbar 2nd Decl. ¶¶ 15-17. The Therapeutic Learning Centers, which are the “linchpin of the Hospital treatment delivery,” ECF 78 at 12, are closed, and Defendants are failing to provide alternative services appropriate for the COVID-19 crisis. Id.
The curtailment of mental health treatment is not the result of professional judgment about the care Plaintiffs need, but rather the result of blanket closures of treatment areas and suspension of in-person therapy. See Youngberg, 457 U.S. at 323. There is nothing in the extensive record indicating that Defendants exercised professional judgment to determine that the 200 individuals committed to the District for intensive psychiatric treatment all of a sudden needed almost no services. In fact, Defendants have failed to follow the professional judgment of the Hospital’s treatment team, which recommended as early as late March a plan to provide comprehensive services to patients in their unit. ECF 78 at 12. The clinical staff and treatment teams have not updated patients’ treatment plans to account for the effect of the COVID-19 crisis. ECF 78 at 16. Indeed, as Elizabeth Jones states, “patients simply are not receiving the services that their treatment teams determined were essential for recovery and acceptable alternative strategies have not been substituted.” Jones 3rd Decl. ¶ 5. Even in light of the COVID-19 emergency,
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Defendant’s own policies and professional standards require an individualized assessment of the care patients need and a strategy for administering that care during the crisis. Defendant’s own emergency plan prioritizes the delivery of services during the crisis. ECF 44 Ex. A. The failure to provide adequate mental health services is no doubt a departure from professional judgment. See Youngberg, 457 U.S. at 323.
(ii) Patient Head Count and “Ready to Discharge”: As discussed above, the failure to reduce the patient census to the greatest extent possible has placed patients at a substantial and unconstitutional risk of contracting COVID-19. Where, as here, an individual is institutionalized in a dangerous environment and essential mental health care is not provided, the balance of considerations must shift in favor of community-based and integrated treatment options. See, e.g., Youngberg, 457 U.S. at 317 (person in custody has a constitutional right to treatment); O’Connor v. Donaldson, 422 U.S. 563 (1975) (confining a person with mental illness who is no longer a threat to himself or others is unconstitutional even if the State seeks to protect the person from less desirable living conditions). The Defendants have identified patients ready for community placement. ECF 78; Ex. 8, Second Declaration of Wanda Rose (“Rose 2nd Decl.”) ¶ 6. Given the risks during the COVID-19 pandemic, keeping patients in the Hospital when the very treatment they were institutionalized to receive, intensive inpatient psychiatric care, is not taking place, is objectively unreasonable, fail to ensure plaintiffs’ reasonable safety, and therefore violate due process.
The continued hospitalization of patients ready for release also violates their rights under the Americans with Disabilities Act. As Dr. Canavan notes, discharge planning for patients should be an ongoing focus of treatment. ECF 78 at 6. The Hospital maintains a “ready for
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discharge list” of patients for whom “the treatment team determined that the individual had progressed sufficiently such that the treatment team could identify the level of care and housing needs for the individual when discharged.” ECF 78 at 7. As of May 6, “there were 56 individuals in care on [the] ‘ready to discharge’ list,” ECF 78 at 7, but Defendants have substantially reduced their efforts at discharge planning and execution. ECF 78 at 8-9.
The ADA requires that persons with disabilities be provided services in the least restrictive setting consistent with their needs. 28 CFR § 35.130(d). Confinement in an institution is justified only where it is essential to meet the person’s treatment needs and there is no appropriate community setting. Brown v. District of Columbia, 928 F.3d 1070, 1077 (D.C. Cir. 2019) (citing Olmstead v. LC by Zimring, 527 U.S. 581 (1999)). ADA regulations require that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 CFR § 35.130(d).
Defendants must serve persons with disabilities in community settings where it has been determined that community placement is appropriate and the transfer from institutional care to a less restrictive setting is not opposed by the individual patient. Brown, 928 F.3d at 587. Defendants may rely on reasonable assessments of their own professionals in determining whether an individual “meets the essential eligibility requirements” for habilitation in a community-based program. Olmstead, 527 U.S. at 602. While the government treating professional is not the sole gatekeeper of whether a person is in the most integrated setting,22 for the purposes of this
22 See, M.J. v. District of Columbia, 401 F. Supp. 3d 1, 12 (D.D.C. 2019) (because Olmstead “did not state that a determination by a State’s own professionals is the only way that a plaintiff may establish” community placement is warranted) (citing Steimel v. Wernert, 823 F.3d 902, 915-16 (7th Cir. 2016) (whether community based treatment was appropriate could be demonstrated by allegations that the state had previously allowed plaintiffs more community interaction).
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preliminary injunction, external evaluations are not necessary. The Defendants’ treating
professionals have determined that at least 56 patients at Saint Elizabeths “mee[t] the essential
eligibility requirements,” Olmstead, 527 U.S. at 602, for community placement by placing them
on the “ready to discharge list.” ECF 78 at 7. With rigorous and regular assessment, many others
may be added to the “ready to discharge” list or may show their eligibility to receive community-
based services in other ways. See Jones 3rd Declaration ¶¶ 8- 10. Defendants have failed to meet
their obligations under the ADA to facilitate community placement for these eligible individuals;
amici report that the Defendants have largely stopped discharge planning with community
providers and have not appropriately modified their discharge practices to respond to the COVID-
19 outbreak. ECF 78 at 7-10; Rose 2nd Decl. ¶ 6.
The housing barriers described by Defendants to amici to explain the backlog in
community placements is insufficient to overcome Defendants’ ADA obligations. See Brown, 928 F.3d at 1070.23 Amici’s recommendations to modify the District’s program to increase the
community placement of patients ready for release provide initial steps the District can
immediately take to address the barriers to community placement:
# 1: The DBH should immediately begin a program to educate community providers about COVID-19 to calm fears over housing or serving Saint Elizabeths individuals.
# 2: Hospital staff and DBH staff should immediately restart meeting twice a week via video conferencing to review and update the “ready for discharge” list and address any new barriers that have been highlighted because of COVID-19,
23 The burden is on the Defendants to show that a requested accommodation of community placement is unreasonable, even if it requires the modification of its programs or services. It is notable that amici concluded that “there also have been fewer placements for individuals in care going to their own apartments since the COVID-19 outbreak as landlords tell social workers that they are leery of accepting referrals from Saint Elizabeths.” ECF 78 at 9. Rose 2nd Decl. ¶ 6. The refusal to rent to a person because of their disability is a clear violation of the District Human Rights Act. D Code § 2-1402.21(a). The Defendants cannot justify their inability to create a community placement based on the illegal conduct of landlords and the District’s failure to enforce its human rights laws.
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so DBH can engage community providers and identify strategies to mitigate concerns. # 3: DBH should provide a short-term subsidy or other supports to providers who accept individuals from Saint Elizabeths in the near future. # 4: DBH should expand housing options for older individuals in care or those who need higher levels of care such as nursing home or intensive residence, as well as individuals who have suffered from COVID-19 who may experience lingering effects and thus may be in need of more intensive community supports. ECF 78 at 7-9. See also Jones 3rd Decl. ¶ 11(b). Put simply, failing to develop and implement a plan to facilitate the discharge and community placement of patients whom Defendants deem “ready to discharge” violates the ADA.
2. Plaintiffs Will Suffer Irreparable Harm Unless Defendants Are Enjoined from Following a Policy that Will Allow them to be Housed in Unconstitutional Conditions in the Future
In entering the TRO, this Court concluded that “Plaintiffs have satisfied the irreparable harm requirement for issuance of a temporary restraining order.” ECF 59 at 17. This remains the case for the issuance of a preliminary injunction for two reasons.
First, for the reasons described above, Plaintiffs’ constitutional and statutory rights are still being violated, and nothing more is needed to prove irreparable harm, because the deprivation of constitutional rights, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009); see generally Brown v. Plata, 563 U.S. 493, 511 (2011) (“Courts . . . must not shrink from their obligation to enforce the constitutional rights of . . . prisoners.” (internal quotation marks and citation omitted)).
Second, as the Court noted, “the imminent risk to [Plaintiffs] health . . . also constitutes an irreparable injury.” ECF 59 at 16-17. Plaintiffs are individuals with serious mental illnesses,
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involuntarily housed in a psychiatric hospital. During the pandemic, they have been unnecessarily exposed to the coronavirus without adequate means to protect themselves, and Plaintiff Dunbar has tested positive. 4/24 Tr. 3-5. In addition to the physical risks of COVID-19 exposure, every day, Plaintiffs are being deprived of the mental health care that is the purpose of their commitment to the hospital. Amici observe that the curtailment of mental health care at Saint Elizabeths has changed the lives of patients at the Hospital for the worse: “Connections to staff and other individuals have been broken, they have lost peers to the virus and they must manage their anxiety without the benefit of many therapies upon which they were dependent. The effect on these individuals will likely be long lasting[.]” ECF 78 at 27. See also Jones 3rd Decl. ¶ 4.
While Defendants have taken measures to reduce these risks, the Hospital “continues to experience ongoing transmission of SARS-CoV-2.” ECF 81 at 2. Even if Defendants had successfully eliminated these risks—which they have not—the “court’s power to grant injunctive relief survives discontinuance of the illegal conduct, and because the purpose is to prevent future violations, injunctive relief is appropriate when there is a cognizable danger of recurrent violation.” U.S. Dep’t of Justice v. Daniel Chapter One, 89 F. Supp. 3d 132, 143 (D.D.C. 2015) (quoting United States v. W.T. Grant Co., 345 U.S. 629 (1953)), aff’d, 650 F. App’x 20 (D.C. Cir. 2016); cf. Gray Panthers Project Fund v. Thompson, 273 F. Supp. 2d 32, 34 (D.D.C. 2002) (issuing permanent injunction even though the defendant acted “in compliance with the court’s preliminary injunction”).
Indeed, courts around the country considering substandard detention conditions in light of the COVID-19 pandemic have recognized that temporary orders must be extended to prevent backsliding. See, e.g., Mays v. Dart, Case No. 20 C 2134, 2020 WL 1987007 at *29 (N.D. Ill. Apr.
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27, 2020) (converting TRO requiring improved response to COVID-19 at detention facility into preliminary injunction; court reasoned that “[a]lthough the Sheriff appears to have complied with the TRO . . . there is at least a possibility that [the Sheriff’s actions] could slip to the wayside despite the Sheriff’s best intentions, as he works to manage the complexities of the Jail during this public health crisis”).
Given the continued spread of the virus at the Hospital and Defendants’ repeated failure to adhere to CDC guidance and their own policies, injunctive relief to protect the patients from risks of COVID-19 exposure and the deprivation of mental health care is not only warranted but indispensable.
3. Enjoining Defendants from Failing to House and Treat Involuntarily Committed Persons in Constitutionally Adequate Conditions Will Not Substantially Injure Defendants or Others.
A preliminary injunction would impose no measurable harm on Defendants or third parties. When a government entity involuntarily commits persons to its custody, it has an obligation to provide for their essential needs and to protect them from danger. Youngberg, 457 U.S. at 324 (1982). Defendants are not harmed by meeting this obligation; in fact, Defendants have no legal right to confine Plaintiffs and others where they are exposed to a dangerous and life-threatening risk.
Nor would Defendants be harmed by an order requiring them to comply with the integration mandate under the ADA and facilitate community-based services for all patients who are eligible for discharge. Indeed, it is Defendants’ affirmative obligation to do so when circumstances exist such that the isolation of individuals with disabilities is no longer justified.
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4.

A Preliminary Injunction Will Serve the Public Interest.

As noted above, the public interest is served when constitutional and statutory rights are

protected. ECF 59 at 17; Simms, 872 F. Supp. 2d at 105; accord Lamprecht v. F.C.C., 958 F.2d

382, 390 (D.C. Cir. 1992) (“a [government] policy that is unconstitutional would inherently

conflict with the public interest”). Here, the public interest would be vindicated by honoring

Plaintiffs’ constitutional and statutory rights and restoring basic standards of decency to the

treatment of Plaintiffs and other patients at the Hospital. And, as long as departing residents are

held in appropriate isolation, the risk to public health is much greater keeping them at Saint

Elizabeths than transferring them elsewhere or letting them out.

REQUESTED REMEDY

The Court should order injunctive relief of two sorts. First, it should order the Defendants

to follow professional public health standards for controlling the spread of COVID-19 at Saint

Elizabeths Hospital, including proper housing and infection control measures for patients, and

including significantly reducing the patient population at the Hospital. Second, it should enjoin

Defendants from further damaging Plaintiffs’ mental health by failing to provide essential

treatment. Amici have provided the Court with concrete, specific recommendations about what

should be ordered, tied to professional standards and based on their undisputed expertise. ECF 78,

81, 81-1.

Although the basis for Defendants’ constitutional violation is their failure to adhere to

professional standards, and Plaintiffs request relief primarily aimed at rectifying those violations,

this Court may order more than mere compliance with CDC and other relevant professional

stanards, because, “[o]nce invoked, the scope of a district court’s equitable powers ... is broad, for

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breadth and flexibility are inherent in equitable remedies.” Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978) (quoting Milliken v. Bradley, 433 U.S. 267, 281 (1977)). Indeed, in Hutto, the Supreme Court approved a prophylactic remedy that required a halt to a practice that was not itself unconstitutional but was part of a “comprehensive” remedy to prevent future violations. See id. at 685-87. To similar effect is Brown v. Plata, 563 U.S. 493, 531-33 (2011), in which the Supreme Court affirmed a downsizing remedy in order to address unconstitutional conditions caused by overcrowding—even though the Constitution does not directly limit the number of people a state may incarcerate.
With these principles in mind, and with the goal of protecting Plaintiffs’ health and safety by bringing the Hospital’s practices into compliance with CDC and other professional standards, Plaintiffs request the following relief:
1) The incorporation of current TRO directives, ECF 83, into a preliminary injunction. Defendants have failed to adhere to professional standards, and, as this Court noted, the public health crisis at the Hospital is ongoing. ECF 82 at 6. Even if Defendants could demonstrate full compliance with the TRO, which they cannot, “good faith and conscientious compliance with the Court’s order does not demonstrate that extension of the order is unwarranted.” ECF 82 at 5. The Court should extend the first five paragraphs of ECF 83, regarding the treatment of exposed patients, the treatment of symptomatic patients, the assignment of staff, the point prevalence survey, and data management.
2) Reduction of patient census. Significant downsizing of Saint Elizabeths Hospital is the most effective way to prevent and control the spread of COVID-19 among the patients and to provide mental health care in the most integrated setting appropriate for patient needs. ECF 81,
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81-1; ECF 78; Jones Second Decl. (ECF 39-2) ¶¶8-10; Stern Decl. (ECF 39-3) ¶¶ 13-15; Jones Decl. ¶¶ 17(a) & 17(j)(ii). To facilitate an orderly reduction consistent with the psychiatric needs of the patients, the Court should order Defendants to:
a. Evaluate every patient at least every 10 days to determine if they are “ready for discharge” under Hospital policies. See Jones Second Decl. (ECF 39-2) ¶ 11.
b. Develop a detailed plan to ensure timely discharge from St. Elizabeths during the ongoing COVID-19 crisis that includes specific actions to incentivize community-based provider agencies to participate in planning and implementing discharges from St. Elizabeths; the provision of technical assistance; and resources for problem identification and remediation as discharge plans are implemented. Jones Second Decl. (ECF 39-2) ¶ 11; ECF 78 at 10.
c. Report biweekly to the Court and Plaintiffs on the results of the evaluations of patients for the “ready to discharge” list and the discharge of patients on the “ready to discharge” list.
3. Provision of adequate mental health care. All patients at Saint Elizabeths are, by definition, in need of psychiatric care. Yet during this crisis, Defendants have ceased providing key components of that care and are not systematically providing alternatives that can be implemented consistent with COVID-19 public health guidelines, such as virtual or telemedicine alternatives. See generally ECF 78. To remedy this, and in line with amici recommendations, the Court should order Defendants, by date certain, to “develop - and have the capacity to implement immediately - alternative methods of providing group treatments as conditions change in the short, medium- and long-term that allow for reduction or tightening of social distancing.” ECF 78; see
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also Jones Second Decl. ¶ 11. Defendants should also be ordered by date certain to conduct individual assessments of each patient, with input from the patient’s treatment team, the patient’s attorney, and/or other supportive decision makers as determined by the patient, to determine the appropriate treatment plan given the COVID-19 crisis. Jones Second Decl. ¶ 11. Finally, the Court should order that all treatment plans should be implemented with fidelity and be tracked by the appointed monitor (see below). Id.
In addition, the Court should order that Defendants immediately procure technology needed to implement patients’ treatment plans in line with Amici recommendations, including iPads or similar devices for each patient, laptops or similar devices for each clinician who treats patients; and 12 additional video conferencing devices and suitable AV carts so that two different group activities can occur on each unit simultaneously. ECF 78 at 20-21.
4. Other relief. To the extent not otherwise required by the Court’s order, the Court should require Defendants to affirmatively consider implementing all recommendations of amici. The Court should order Defendants to report to the Court within 10 days which recommendations they have adopted, which they plan to adopt with a timeline for adoption, and which they reject and the grounds for rejecting them.
5. Independent Monitor. An Independent Monitor will be important to ensure compliance with the Court’s Order. The Court should therefore appoint a Monitor, to be compensated by Defendants who should be authorized to conduct such factual investigations as are necessary to measure the Defendants’ efforts at compliance with the preliminary injunction and Defendants’ efforts to implement amici recommendations. The Monitor should be authorized to have appropriate access to the Hospital, its patients, its staff, and its records. The Monitor should be
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directed to file weekly reports until such time as the District reaches substantial compliance with all of the terms of the Preliminary injunction, and to file reports every 30 days thereafter.
5. Reporting by the Defendants. To permit the Court and the Plaintiffs to assess whether implementation of the injunction is effectively addressing the conditions at the Hospital, the Defendants should be required to provide to the Court, the Independent Monitor and the Plaintiffs a biweekly report that includes (i) the daily census of patients, (ii) the number of admissions, (iii) the number of patients assessed for changes to their treatment plans, (iv) the number of patients recommended for change in treatment, as well as any instance where the treatment has not been implemented, (iv) the number of patients the assessment team has assessed for placement on the “ready to discharge” list and the results of those evaluations (v), the number of patients discharged from the Hospital and where they were discharged to; (v) for any patients remaining in the facility, their COVID-19 status and their quarantine or isolation status, and (vii) summaries of all complaints reported to the Hospital’s patient advocate.
CONCLUSION For the foregoing reasons, the motion for preliminary injunction should be granted.

Dated: May 14, 2020

Respectfully submitted,
/s/ John A. Freedman John A. Freedman (D.C. Bar No. 453075) Tirzah S. Lollar (D.C. Bar No. 497295) Brian A. Vaca (D.C. Bar No. 888324978) ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Avenue, N.W. Washington, D.C. 20004 (202) 942-5000 John.Freedman@arnoldporter.com Tirzah.Lollar@arnoldporter.com
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Brian.Vaca@arnoldporter.com
Kaitlin Banner (D.C. Bar No. 1000436) Margaret Hart (D.C. Bar No. 1030528) Hannah Lieberman (D.C. Bar No. 336776) Jonathan Smith (D.C. Bar No. 396578) WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 700 14th Street, NW, Suite 400 Washington, DC 20005 Phone: (202) 319-1000 Fax: (202) 319-1010 kaitlin_banner@washlaw.org margaret_hart@washlaw.org hannah_lieberman@washlaw.org jonathan_smith@washlaw.org
Scott Michelman (D.C. Bar No. 1006945) Arthur B. Spitzer (D.C. Bar No. 235960) Michael Perloff (D.C. Bar No. 1601047) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF THE DISTRICT OF COLUMBIA 915 15th Street NW, Second Floor Washington, D.C. 20005 (202) 457-0800 smichelman@acludc.org aspitzer@acludc.org mperloff@acludc.org
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DECLARATION OF IESHAAH MURPHY SUPERVISING ATTORNEY AT THE PUBLIC DEFENDER SERVICE
I, Ieshaah Murphy, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.
1. My name is Ieshaah Murphy. I make these statements based upon my personal knowledge.
2. I am a supervising attorney in the Trial Division at the Public Defender Service for the District of Columbia (hereinafter “PDS”) and have served in this role since February 19, 2017. Prior to working as a supervising attorney, I was a staff attorney in the Trial Division at PDS. I have worked at PDS since October of 2012. PDS is a federally funded, independent organization dedicated to representing indigent adults and children accused of crimes in the District of Columbia. My principal responsibility as a supervising trial attorney at PDS is to represent people in criminal proceedings in the District of Columbia Superior Court and to supervise the practice of PDS’s trial attorneys.
3. As part of my duties as an attorney at PDS, I regularly conduct legal visits and legal phone calls with clients in the custody of the District of Columbia’s Department of Corrections, both at the Central Detention Facility (“CDF”) and at the Correctional Treatment Facility (“CTF”) and St. Elizabeths Hospital (hereinafter “Hospital”).
4. While conducting a legal phone call with Client A, who is currently at St. Elizabeths, I learned the following: a. Client A had been living on the 1G unit at the Hospital since December of 2019. b. Client A moved from unit 1G to the TLC unit on May 9, 2020 after testing positive for COVID-19. c. Client A started to feel sick at some point in mid-April, 2020. Client A had a fever of 99.7, body aches, chills, vomiting, and headaches. Client A repeatedly requested to be tested for COVID-19, but was told that Client A could not be tested because Client A’s fever did not go above 101 degrees. Around this same time, there were at least six other residents who were also sick and denied testing because their fevers did not rise above 101 degrees. Client A eventually began to recover from this illness. d. Client A was tested for COVID-19 on May 5, 2020. While waiting for test results Client A interacted with residents on the unit normally. Client A used the communal bathrooms, played video games, and watched TV with other residents. e. Client A received positive COVID-19 test results on May 7, 2020. f. Client A was moved from 1G to the TLC unit at around midnight on May 9, 2020. g. Client A was told that Client A will remain on the TLC unit until at least May 18, 2020. Client A will be tested for COVID-19 again on May 18, 2020.

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h. Prior to the COVID-19 pandemic, Client A used to do physical therapy, for Carpal Tunnel and a prior injury, about two times a week. Client A has not been able to get physical therapy for about a month and a half.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief.
Executed on the 13th day of May 2020, in Washington, D.C.
_______________________________ Ieshaah Murphy Supervising Attorney Public Defender Service for DC 633 Indiana Ave. NW Washington, DC

Case 1:19-cv-03185-RDM Document 87-3 Filed 05/14/20 Page 1 of 5
Covid19: Interim Considerations for State Psychiatric Hospitals
Updated: May 8, 2020
Individuals with serious mental illness, particularly those who are older or who have chronic medical conditions, can be at higher risk for illness with Covid-19. It is important that mental health facilities be prepared for Covid-19 to keep both patients as well as healthcare staff safe, and this may include proactive measures to reduce the psychiatric disease burden caused by the COVID-19 pandemic. While SAMHSA has preferentially recommended outpatient treatment during the COVID-19 crisis as telehealth technology and social distancing can be more effectively implemented, inpatient psychiatric care will inevitably be required for a number of patients. Psychiatric care on an inpatient service is typically reserved for the most severe conditions, and inpatient care at state psychiatric hospitals is typically reserved for the most refractory cases.
State psychiatric hospitals have typically developed Disaster Plans that require the establishment of protocols and relationships with other local government and healthcare entities. Each accredited facility should have existing infection control plans that are designed to address scenarios such as for MRSA, HIV, Hepatitis, and infectious diseases. Plans to manage COVID-19 at the facility should now be in place at all of these sites. However, in contrast to general healthcare settings, psychiatric facilities may experience unique challenges in prevention and infection control.
In addition to consideration of infection control guidelines with the goal of minimizing spread, described below, it is also important to be aware of the psychological impact of quarantine and major disruptions to everyday life. Healthcare workers already support the mental health of their patients, but they also need to attend to their own needs and those of their families. i It is important to provide access to accurate information sources such as the Centers for Disease Control and Prevention (CDC). ii The American Psychiatric Association has resources on the mental health impacts of Covid-19.iii Others also have studied and reported on the adverse effects of quarantine on individuals.iv Patients at mental health facilities are vulnerable both to the infection itself, but also to worsening anxiety, mood, or psychosis during this time. Given the uncertainty and rapid change associated with the virus, anxiety and distress should be anticipated.v
In response to the CDC recommendations for all healthcare facilities, SAMHSA offers further considerations specific to psychiatric hospitals.
1) Reduce morbidity and mortality: a. Many patients admitted to state psychiatric facilities have a number of health comorbidities that increase their risk of developing severe symptoms from COVID-19 infection. These include the very high incidence of tobacco use with resultant COPD and lung disease or metabolic syndrome with diabetes, hypertension, and heart disease. In addition to intake screening and testing when appropriate, these patients should be informed of their elevated risk and frequent follow up COVID-19 screening should be performed. These patients should be segregated from new or symptomatic patients due to their higher stratified risk. b. SAMHSA recommends that when possible all new admissions be segregated until COVID-19 testing results are available for review. For new and existing patients, all suspected and

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symptomatic cases should be immediately segregated and transferred, if necessary, to appropriate healthcare facilities with capabilities of treating more severely ill patients. Advanced directives should be updated on all existing patients and should be completed for new patients upon admission. Psychiatric hospitals may not have the capacity to respond to severe respiratory infections. c. Symptoms associated with psychotic illness, such as paranoia or anxiety disorders such as OCD may worsen during the COVID-19 crisis, and patients with these conditions may require additional redirection as they are exposed to more negative news about the pandemic. 2) Considerations when attempting to minimize disease transmission: a. Limit the movement of COVID-19 patients (e.g., have them remain in their room) 1. Capacity of informed consent may be lacking for those admitted involuntarily. Individuals
with serious mental illnesses may have varying degrees of capacity to follow appropriate infection control procedures, therefore it is important to establish the patient’s capacity or lack of capacity when developing the modified COVID-19 treatment plan. Those who lack capacity may not fully appreciate the dangers of exposure. The nature of the therapeutic milieu may make minimal contact rules more challenging. Patients without capacity may require more frequent reorientation to the rules, more activities one on one with staff, and an individual room. While restrictions of movement outside of their room will be implemented for some patients, the presence of mental illness does not mean an individual is incapable of practicing safe hygiene and social distancing practices. Staff should make the assessment based on the patient’s capacity and behavior and carefully avoid stigmatizing those with mental illness.
2. Take steps to prevent known or suspected COVID-19 patients from exposing other patients. a. It is advisable when possible to segregate the areas or individual floors as nonCOVID-19 and COVID-19. This may require further restrictions in movement and accommodations should be explored. For instance, the dayroom is often the location where patients congregate and receive the therapeutic benefits of the milieu. Having an alternate dayroom location, when possible, could help to reduce a patient’s anxiety about exposure and maintain continuity. Also, those patients with severe anxiety disorder or paranoia may feel some relief in segregation as their risk of exposure is reduced. b. Identify dedicated staff to care for COVID-19 patients. c. Psychosocial group treatment sessions may have to be suspended if these sessions cannot be safely modified with fewer individuals reliably practicing social distancing or with video technology available. One on one psychosocial counseling sessions with social distancing can be considered.
b. Another important consideration is that most psychiatric facilities have restricted access with limited visitation. This is stigmatizing in itself as these units are locked for the security of the patients and staff. During the COVID-19 crisis, visitation by friends, family, and various stakeholders may be curtailed. This necessary step to reduce exposure risk can leave the patients feeling more isolated. When visitation is restricted staff of all levels should be aware of this and take steps to reach out and check on patients more often.

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c. Often family members and community support are vital components of the patients’ recovery. These individuals are heavily involved in the patient’s lives and have traditionally participated in family meetings and therapy. When safely implemented, this important part of treatment should continue. Continuing these meetings by confirmed appointment in designated area, frequently sanitized between visits, can facilitate disposition planning, reduce recidivism rates, and improve patient satisfaction. Such dedicated spaces could also be used for visitation with a schedule and protocol for safe interaction including social distancing and sanitizing after each use. Alternative steps depending on resources could include setting up a computer with a webcam and microphone in another area within the facility that can be cleaned between uses. This would allow patients and family members to communicate visually as well as via audio.
d. Post visual alerts (signs, posters) at entrances and in strategic places providing instruction on hand hygiene, respiratory hygiene, and cough etiquette. For patients with limited capacity frequent reorientation to these is required.
e. Observe newly arriving patients/residents for development of respiratory symptoms in an area designated for new patient evaluation.
f. Confirm or obtain psychiatric advance directives to facilitate medication and treatment compliance in the event of change of capacity for informed consent.
3) Protect healthcare personnel a. Ensure that staff are aware of sick leave policies, and staff should be encouraged to stay home if they are not feeling well. b. Limit visitors to the facility and perform screening on all who enter the facility. c. Ensure cleaning and disinfectant supplies are available as well as tissues, waste receptacles, and alcohol-based hand sanitizer. d. Ensure housekeeping and dietary personnel frequently sanitize and disinfect all areas where staff and patients can be found. e. Healthcare workers may also develop symptoms of anxiety during this crisis, therefore supervisors and managers should perform more frequent meetings and checks with frontline staff. Flexibilities when possible should be accommodated. Occupational health departments should now be actively engaging staff and implementing plans for staff that are experiencing greater stress and anxiety. Resources should be made available for staff experiencing increased stress, depression, or substance use disorder relapse.
4) Preserve healthcare system functioning a. As staffing shortages may become more common as healthcare workers also become infected and are quarantined, it is important that supervisors and managers establish contact with outside staffing sources to ensure continuity of care. More flexibility in task assignment may be an option, for instance, the ability to “buddy team” with paraprofessional staff if regular staff ratios are limited due to staff illness. b. As the anxiety and fear from COVID-19 can preclude improvement in the patient’s psychiatric condition, providers should instruct staff to engage patients in more one to one activities and

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should be mindful of this consideration when ordering prn medications to keep the patient as comfortable as possible. It is important to note that these measures should be implemented in conjunction with the utilization of clear clinical indications and, when applicable, validated psychiatric screening instruments. For example increased screening for worsening symptoms may prompt detection earlier and inform changes to the treatment plan. These measures may prevent escalation of symptoms of agitation, psychosis, or loss of control and thereby avoid seclusion and restraints. Additionally staff should be mindful that overcrowding and restrictions can be potential triggers for behavioral instability. These seclusion events are stressful for staff and traumatic for both the patients and to those patients who observe such incidents. The significant negativity following such events can, in some instances, temporarily transform the nature of the psychiatric unit. Therefore, identifying and addressing issues prior to the outburst should be the goal. c. Discharge planning may be more difficult. As many step down residential facilities and outpatient facilities are limiting intakes, social workers may find it more difficult to plan disposition of patients. This may result in longer lengths of stay. The treatment team as well as utilization review staff should adjust with this expectation. Also, questions may arise about the risk of the patient’s exposure to those at the receiving facility. Repeat testing for COVID19 should ideally be completed prior to discharge as further reassurance for receiving facilities. More resources from varied sources should be mobilized such as family, friends, assisted living, county resources, and local charity.
There are a number of steps that healthcare facilities can take to be prepared should an individual become infected with Covid-19.vi Psychiatric hospitals should follow all infection control guidelines as stipulated by the CDC. For general infection control guidelines, see https://www.cdc.gov/coronavirus/2019-ncov/infection-control/index.html. vii
During this rapidly changing situation, mental health providers should refer to the CDC website for the most updated information. Individuals with serious mental illness are at particular risk related to cooccurring medical conditions as well as challenges with accessing healthcare. Attention to proper prevention and infection control procedures as well as attention to the psychological impacts of the virus are important in reducing morbidity and mortality for this vulnerable population.
i Sustaining the Well-Being of Healthcare Personnel during Coronavirus and other Infectious Disease Outbreaks https://www.cstsonline.org/assets/media/documents/CSTS_FS_Sustaining_Well_Being_Healthcare_Pe rsonnel_du ring.pdf.pdf Accessed March 17, 2020 ii Centers for Disease Control, Coronavirus https://www.cdc.gov/coronavirus/2019ncov/index.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2Findex.html Accessed March 17, 2020 iii Covid-19 Mental Health Impacts Resources for Psychiatrist https://www.psychiatry.org/newsroom/apablogs/apa-blog/2020/03/covid-19-mental-health-impacts-resources-for-psychiatrists Accessed March 17, 2020 iv The Psychological Impact of Quarantine and How to Reduce It: Rapid Review of the Evidence. Lancet 2020; 395: pgs. 912-20. Brooks, Samantha K. and Webster, Rebecca K. and Smith, Louise E. and Woodland, Lisa and Wessely, Simon and Greenberg, Neil and Rubin, G. James

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v Caring for patient mental well-being during coronavirus https://www.cstsonline.org/assets/media/documents/CSTS_FS_Caring_for_Patients_Mental_WellBeing _during_C oronavirus.pdf.pdf Accessed March 17, 2020 vi Ibid vii Infection control guidelines https://www.cdc.gov/coronavirus/2019-ncov/infectioncontrol/index.html. Accessed March 17, 2020

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Case 1:19-cv-03185-RDM Document 87-7 Filed 05/14/20 Page 1 of 9

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CRIMINAL DIVISION

:

:

IN RE MISDEMEANOR- CHARGED :

DEFENDANTS IN COMPETENCY

:

EVALUATION OR RESTORATION :

SENTENCED MISDEMEANANTS

:

:

:

2020 CNC 000122

ORDER The Court is in receipt of the Public Defender Service’s Omnibus Emergency Motion for Immediate Release of Misdemeanor-Charged Defendants in Competency Proceedings in Light of COVID-19 Pandemic and Suspension of Criminal Proceedings (“PDS Emergency Motion”), filed on April 2, 2020; the Office of the Attorney General’s Response filed on April 3, 2020 (“OAG Response”); the Public Defender Service’s Supplement to the PDS Emergency Motion filed on April 7, 2020; the United States Attorney’s Office’s Response to the Defendants’ Request to Immediately Release all Misdemeanants, without Due Regard for Criminal History, Nature of Offense, Victims’ Rights, or Public Safety, filed on April 13, 2020 (“USAO Response”); the Public Defender Service’s Motion for Immediate Release of Five Defendants for Whom the Government Has No Opposition and One Defendant for Whom the Government Defers to the Court filed on April 14, 2020; the United States Attorney’s Office’s Response to PDS’s Immediate Release Motion filed on April 14, 2020 ; the Public Defender Services Clarification Regarding Scope of Representation filed on April 15, 2020 and the Public Defender Services Reply to Government’s Response and Motion for Release of Seventeen Identified Individuals, All of Whose Attorneys Have Authorized the Public Defender Service to Seek Their Clients Release filed on April 16, 2020.

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At the time of PDS’ initial filing one month ago, the Department of Behavioral Health reported 45 individuals at St. Elizabeths Hospital held in competence proceedings on misdemeanor charges as well as 12 individuals held at the D.C. Jail in competence proceedings on misdemeanor charges. Since then, the Court has released six individuals based on the pleadings submitted and held approximately 40 hearings where the United States government, Department of Behavioral Health and Department of Corrections were present – the latter in the cases in which defendants were incarcerated at the jail. As of today, of the original 57 misdemeanant defendants who were incarcerated at either Saint Elizabeths Hospital or the jail, only eleven individuals are held. Of those eleven, the requests of two who sought release were denied while the remaining nine, through defense counsel, represented that they no longer sought release. Of that group of eleven, nine are held at St. Elizabeths Hospital and two are held at the D.C. Jail.
Appendix A contains a list of all individuals who were held at St. Elizabeths Hospital and the outcome of their cases. Appendix B contains a list of all individuals who were held at the D.C. Jail and the outcome of their cases.
WHEREFORE, upon consideration of the foregoing, the Court hereby ORDERS that the Public Defender Service’s Omnibus Emergency Motion for Immediate Release of MisdemeanorCharged Defendants in Competency Proceedings in Light of COVID-19 Pandemic and Suspension of Criminal Proceedings and related motions are DENIED AS MOOT.
SO ORDERED this 8th day of May, 2020.

Case 1:19-cv-03185-RDM Document 87-7 Filed 05/14/20 Page 3 of 9
Judge Michael Ryan Associate Judge
Copies to: Avis Buchanan, Director Public Defender Service for the District of Columbia Timothy Shea, United States Attorney for the District of Columbia United States Attorney’s Office for the District of Columbia Karl Racine, Attorney General for the District of Columbia Office of the Attorney General for the District of Columbia Betty Ballester, President Superior Court Trial Lawyers Division

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APPENDIX A

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Last Name First Name

Misdemeanor Case #(s)

Result

Brice Cullen Haywood Bond Bridges Brown

David Reginald Charles Saalik

2018 CMD 9322 2018 CMD 12247 2018 CMD 12297 2018 CMD 12417 2018 CMD 14575

Released in criminal case, remanded in civil commitment

2018 CMD 15338 2020 CMD 1606

Motion for Release Withdrawn by defense counsel

2015 CMD 1417 2015 CMD 1720 2019 Released in criminal case,

CMD 7888 2019 CMD 9988 2019

remanded in civil commitment

CMD 9989

2019 CMD 7044 2019 CMD 10158 Released

Corey Allen

2019 CMD 5202 2019 CMD 5406 2019 Released CMD 7489 2019 CMD 15515 2019 CMD 15532
2019 CMD 13519 2019 CMD 15310 Motion for Release Denied

Castro-Ruiz Clinton

Frugencio Brian

2019 CMD 10842 2019 CMD 12114
2018 CMD 3037 2019 CMD 16010 2020 CMD 332

Released in criminal case, remanded in civil commitment
Released

Currie

Kenneth 2019 DVM 1363 2019 DVM 1382 Released

Diaz

Reynaldo 2019 CMD 7287 2019 CMD 7682 2019 Motion for Release Withdrawn by

CMD 8499 2019 CMD 11716

defense counsel

Macklin

Wendell

2018 CMD 14220 2018 CMD 15625 Motion for Release Withdrawn by 2018 CMD 17250 2018 CMD 18836 defense counsel

Payne

Jesse

Petty Smith

Eugene Aaron

Anderson

Kenneth

(Washington)

Jacobs

Brandon

2019 CMD 11163 2019 CMD 14808

Released in criminal case, remanded in civil commitment Released

2019 CMD 13628 2020 CMD 671

Motion for Release Withdrawn by

defense counsel

2019 CMD 6836 2019 CMD 8633 2019 Released

CMD 10528 2020 CMD 1505

2019 CMD 7459 (only documented DC Released charge)

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Melton

Wayne

Montgomery Cedar

Pugh

Milton

Anderson Bolden

Eric Ernest

Curry

Johnnie

2019 CMD 16016 2020 CMD 1632 Released 2020 CMD 1657 2020 CMD 2022 2020 CMD 2028

2020 CMD 619 2020 CMD 2339 2020 Released CMD 2363

2020 CMD 772 2020 CMD 1446

Released

2020 CMD 554 2020 CMD 998 2020 CMD 1769
2018 CMD 18794 2019 CMD 3979 2019 CMD 13788

Released
Released in criminal case, remanded in civil commitment

2019 CMD 4834 2019 CMD 5044 2019 Released in criminal case,

CMD 12752

remanded in civil commitment

Robinson Blackwell Fedorova Harris Jones Njie O'Brien Parson

Eugene Aylsia Maria

2019 CMD 13023 2019 CMD 13713 Motion for Release Withdrawn by

2019 CMD 14522

defense counsel

2019 CMD 16355 2020 CMD 856 2020 CMD 865

Released

2019 CMD 10844 2019 CMD 13577 Released 2019 CMD 14914

Lavida

2019 CMD 7277 2019 CMD 10084 2019 DVM 788 2019 DVM 1281

Released

Ertha

2018 CMD 15424 2018 CMD 16773 Released

Ernestina

2020 FUG 1264; 2020 CMD 622; 2020 Released CMD 1283

Bernadette 2019 CMD 11898 2019 CMD 11899 Released in criminal case,

2019 CMD 6308

remanded in civil commitment

Shanti

2019 CMD 5593 2019 CMD 8348 2019 Released CMD 10096 2019 CMD 12365 2019 CMD 14695

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Robinson Robinson

Lashawn Susan

2019 CMD 238 2019 CMD 5414 2019 Released CMD 5415 2019 CMD 15640

2018 CMD 18484 2018 CMD 18833 Released in criminal case,

2019 CMD 11229

remanded in civil commitment

Stevens

Tanisha

Walker Holland
Lomax

Mary Richard
Brian

Newkirk

David

Odunsi

Olakunle

Tilahun

Kaleab

Westmoreland Wade

Chambers

Joseph

Hughes Smith

Johnnie Wilson

2019 CMD 11909 2019 CMD 12252 Released 2019 CMD 13203

2020 CMD 1787
2019 CMD 12199 2019 CMD 14120 2020 CMD 68 2019 CMD 16166 2019 CMD 16393 2020 CMD 501

Released
Released in criminal case, remanded in civil commitment Released

2017 CMD 6286 2017 DVM 409 2015 CMD 12059 2020 CMD 733

Released in criminal case, remanded in civil commitment Released

2019 CMD 1592 2019 CMD 3006 2019 Motion for Release Withdrawn by

DVM 317

defense counsel

2017 CMD 11732 2018 CMD 153 2019 Released CMD 6343 2019 CMD 13819 2019 CMD 13847

2019 CMD 11836 2019 CMD 12295 2019 CMD 12407 2019 CMD 12628 2019 CMD 13921

Motion for Release Withdrawn by defense counsel

2019 CMD 4795
2019 CMD 7958 2019 CMD 11352 2019 CMD 11353 2019 CMD 14459 2019 CMD 14476

Released Released

Irika Mwangi

Micah Chekesha

2018 CMD 15340 2017 CMD 7792 2019 CMD 4616

Released in criminal case, remanded in civil commitment Released

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APPENDIX B

Case 1:19-cv-03185-RDM Document 87-7 Filed 05/14/20 Page 9 of 9

Last Name First Name

Misdemeanor Case #(s)

Result

Anderson Brown Gregg

Quincy David Laget

2019 CMD 004761 2019 CMD 016188 Released 2020 CMD 00166 2020 CMD 003210

2019 CMD 011602

Released

2019 CMD 010068 2020 CMD 002424 Released

Gunyani Kochanov

Kevin Sergey

2020 CMD 001971 2020 CMD 002030 Released 2020 CMD 002212 2020 CMD 002329
2019 CMD 014987 2019 CMD 013714 Released 2019 CMD 014645 2019 CMD 014644

Lewis

Omari

2019 CMD 014762 2020 CMD 001020 Released

Lyles Marshall McDaniel Pipkin Seabrook

Kevin Brittney Ginevia Deborah Terri

2019 DVM 000719 2019 CMD 012943 Motion for Release Withdrawn by

2019 CMD 009286 2019 DVM 000686 defense counsel

2019 CMD 012945

2020 CMD 1889 2020 CMD 2097

Motion for Release Withdrawn by

2020 CMD 2228

defense counsel

2020 CMD 000190 2020 CMD 002953 Released

2019 CMD 0160601 2019 CMD

Released

016059 2019 CMD 002445 2019 CMD 012483

2019 CMD 15142 2019 CMD 15174 Motion for Release Denied

Willis

Carl

2020 CMD 001457 2020 CMD 001618 Released

Case 1:19-cv-03185-RDM Document 87-8 Filed 05/14/20 Page 1 of 5
Third Declaration of Elizabeth Jones
I, Elizabeth Jones, submit the following declaration assessing the measures described by the District of Columbia’s Department of Behavioral Health in response to the COVID-19 pandemic at St. Elizabeths Hospital.
I declare as follows: 1. I have over 35 years of experience managing the provision of services to people
with intellectual and behavioral health disabilities, including managing public sector psychiatric hospitals in Massachusetts, Maine, and the District Columbia. My resume was filed with the first declaration I submitted for this case. I have drawn on my administrative experience to evaluate the actions described by the Defendants in this matter.
2. I have reviewed the report of Amicus Curiae Dr. Patrick Canavan, in addition to the material I reviewed for my prior declarations.
3. It is my professional opinion that the current level of treatment occurring at St. Elizabeths Hospital, as described by Dr. Canavan, falls far short of what patients need to continue their recovery from the serious mental illness that necessitated admission to a psychiatric institution. As reported to Dr. Canavan, by multiple individuals in care, “very little, if any, treatment is occurring and…there is little for them to do on the units other than watch TV.” The documentation of treatment hours confirmed that fewer than 100 hours of treatment have been provided since April 1, 2020 in stark contrast to the almost 6000 hours just two months earlier. Only 53 individuals out of a current census of 209 individuals have been prescribed individual therapy sessions, to be conducted via teleconferencing. Yet, this therapy is “on hold” for nine individuals (17%) for various reasons. The Therapeutic Learning Centers are closed and both the current and anticipated efforts to substitute alternative treatment modalities are woefully

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inadequate. 4. The conditions at St. Elizabeths Hospital, as described in Dr. Canavan’s report,
are a clear risk to health and safety. They are drastic deterrents to treatment, recovery and timely discharge; risk traumatizing patients and exacerbating symptoms of mental illness; and inevitably will result in long lasting, if not permanent, damage to the individuals and their efforts at recovery. These circumstances violate professional standards of care and treatment.
5. The standard expected practice at psychiatric hospitals, like Saint Elizabeths, is that clinicians and treatment teams, along with the patient, develop Individual Recovery Plans that are then implemented with fidelity. Based on Dr. Canavan’s report, Saint Elizabeths is not implementing its treatment plans and steps have not been taken to modify them in light of this health crisis. Therefore, patients simply are not receiving the services that their treatment teams determined were essential for recovery and acceptable alternative strategies have not been substituted.
6. It is critical that patients at Saint Elizabeths receive adequate individualized counseling and support to manage their mental health in response to the crisis, including their anxiety about the pandemic; grief counseling in response to peers or other friends and relatives suffering from or dying from COVID-19; recreation time, including time each day to go outdoors (consistent with COVID-19 restrictions); and enhanced access to social support from friends and family in the community. Based on Dr. Canavan’s report, Saint Elizabeths has not taken sufficient action to address behavioral health needs specifically arising from this crisis. For example, the report does not document any actions underway to assist each patient who is experiencing the stress, isolation and restrictions created by this pandemic. There is no information about the strategies for recognizing and ameliorating, to the greatest degree possible,

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the emotional toll of this crisis on each individual confined to this institution. 7. Furthermore, Dr. Canavan’s report documented that it is unclear who is reviewing
incidents of restraint and/or seclusion and the Medical Director confirmed that he is not reviewing incidents. This is not only contrary to expected practice but it raises serious concerns about the lack of oversight and the status of effective treatment for those individuals experiencing these restrictive practices.
8. Finally, it is indeed very troubling, and contrary to expected practice, that Dr. Canavan’s report documents that the District of Columbia is failing to properly plan and timely execute discharges from the Hospital. It is reported that the pre-COVID practice of reviewing the “Ready-to-Discharge” List at biweekly meetings with staff at the Department of Behavioral Health ceased in mid-March. As a result, discharge barriers are not identified and remedied. Contacts with representatives from the community sector are seriously curtailed. The failure to expedite appropriate discharge to an individualized community setting is contrary to standard practice in the field and jeopardizes the individual’s recovery and emotional stability. As of May 6, 2020, there were 56 individuals on the “Ready-to Discharge” List. In addition, the practice of discharging to shelters should be immediately discontinued. According to Dr. Canavan’s report, 16 individuals were sent to shelters from St. Elizabeths. This is flatly unacceptable and again demonstrates the failure to plan and effectively implement expected discharge practices. Placement in a shelter during this pandemic places the individual at serious risk of exposure to infection.
9. It continues to be my professional opinion that, based on the number of people on the Ready- to- Discharge List, if concentrated efforts were made, the District could discharge these individuals from Saint Elizabeths and place them in the community because they present

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low-risk and may have homes or housing where they can receive appropriate supports. The District’s lack of effort to effectuate these placements is troubling during the best of times, but particularly concerning in light of the danger posed by COVID-19 exposure at the Hospital. Dr. Canavan’s report clearly demonstrates that Saint Elizabeths is not the appropriate placement for a significant number of patients in light of the COVID-19 pandemic.
10. St. Elizabeths is part of the District of Columbia’s mental health system. It should not stand in isolation from the wide array of community-based services and supports funded by the District’s government. As other states are now demonstrating, individuals with a serious mental illness are being successfully supported and treated in the community during the COVID19 crisis. These accomplishments are the result of systemic planning, flexibility in funding, continuing technical assistance, strong collaboration between community providers and hospital staff, and oversight by the state agencies. The District of Columbia needs to promptly develop more systemic strategies for coping with the demands of this crisis so that individuals not only receive timely and effective treatment at St. Elizabeths while hospitalized but, equally importantly, are discharged to appropriate community settings with supports as soon as clinically and programmatically possible. It is widely recognized in the field of mental health that individuals should not be confined to a psychiatric institution if alternative community-based options can be implemented.
11. In order to address these deficiencies in treatment and discharge planning, I propose the following recommendations, in addition to the recommendations in my prior declarations:
a. Saint Elizabeths Hospital should be instructed to develop a plan to implement Individual Recovery Plans, with any appropriate modifications required for

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health/safety during the ongoing COVID-19 crisis. The Medical Director at Saint Elizabeths Hospital should ensure updated individual assessments of all patients, with input from the patients’ treatment team, his/her attorney, and/or other supportive decision makers as determined by patient choice, to evaluate the effects of the stress and trauma of the impact of the current COVID-19 pandemic as well as the clinical repercussions resulting from Defendants’ deprivation of appropriate mental health services. The Medical Director should ensure that any necessary changes to Individual Recovery Plans are implemented without further delay. The recommendations included in Dr. Canavan’s report should be implemented in order to improve the delivery of necessary treatment services and supports. b. It is strongly recommended that the Court continue to rely on the fact-finding and recommendations of its Amici Curiae or appoint a Court Monitor to provide independent oversight until compliance with the requirements for health/safety, treatment and timely discharge are met and sustained for a period of time determined by the prevalence of the COVID 19 virus in the District of Columbia. I declare, under penalty of perjury, that the forgoing is true and correct. Executed on May 14, 2020.
Elizabeth Jones

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DECLARATION OF WANDA ROSE PROGRAM DEVELOPER AT THE PUBLIC DEFENDER
SERVICE
I, Wanda Rose, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.
1. My name is Wanda Rose. I make these statements based upon my personal knowledge.
2. I am a program developer in the Mental Health Division at the Public Defender Service for the District of Columbia (hereinafter “PDS”) and have served in this role since September 21, 2003. PDS is a federally funded, independent organization dedicated to representing indigent adults and children facing a loss of liberty in the District of Columbia. My principal responsibility as a program developer at PDS is to assist attorneys in my division with the social work aspects of their cases.
3. As part of my duties as a program developer at PDS, I regularly speak to social workers at St. Elizabeths Hospital (“SEH”).
4. Since the pandemic began affecting hospital operations on approximately March 16th, 2020, I have had the opportunity to speak with several social workers at the hospital about outplacement efforts.
5. I have also spoken with group home providers and nursing homes during the same time period.
6. From these conversations I learned the following:
Nursing home providers have had to decrease their bed capacity to comply with COVID-19 distancing regulations. Most have no available beds. Some are dealing with virus outbreaks at their facilities. Some nursing homes have suspended all admissions for the duration of the pandemic, even though the nursing homes admit having available beds.
Some group home providers I have spoken with have said they are not accepting people during the pandemic. Other providers want assurances that individuals can be tested and receive results quickly. Most providers are asking for two negative tests prior to acceptance. Some providers are not calling back after finding out that the individual seeking outplacement is from SEH. I have had this experience and the social workers at SEH have reported to me that they have had the same experience. I have had to call group home providers repeatedly to get them to call back about scheduling an interview for an individual. Group home providers have said that the video interview format is a hindrance and they were “not able to get a feel for the person” on video. I have been told by group home providers that they are interviewing numerous people for each available slot. I have seen the group home vacancy lists since the end of March 2020. Some openings have not been filled and have been carried over onto the next vacancy list.

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On May 6, 2020, I spoke to Sophy Varghese, the Director of Social Work, at SEH. She told me that the only discharges the hospital has had during the pandemic were those in which a provider had accepted the individual prior to the pandemic. She said that while group home providers have been willing to interview via videoconference, they have not actually accepted anyone. Sophy Varghese also expressed concern about discharging patients at this time when services from Community Support Agencies (“CSA”) have been diminished due to the virus. I have been in WebEx treatment meetings with individuals who are currently seeking outplacement and no representative from the CSA was present.
I have also had opportunity to speak several times during the pandemic with Alvin Hinkle, the Continuity of Care Chief at the Department of Behavioral Health (“DBH”). He assists with finding community placements for individuals at SEH and he works with group home providers. I asked him if he would be able to talk to the providers about willingness to accept our clients, those that SEH feels are clinically ready to leave and that they are actively seeking placement for. Alvin Hinkle told me that providers are allowed to choose who they will accept. DBH does not get involved in this. I tried repeatedly to ask him about some of our clients individually, but he refused to answer and referred me back to SEH instead. I asked Mr. Hinkle if it might be possible to use crisis beds to help get individuals out of the hospital. He said he could not authorize this, and that those beds were only for individuals in crisis, not as a step-down from the hospital. I have called the crisis beds at different points during this time, and was told that they had available bed space.
I have asked about using the quarantine hotel at Skyline as a way to help with outplacement. I was told by a social worker at SEH that they have not been directed by DBH that they can refer people there, nor have any other possible housing options been offered other than the group home vacancy list.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief.
Executed on the 13th day of May 2020, in North Beach, Maryland.
Wanda Rose ____________________________ Program Developer Public Defender Service for DC 633 Indiana Ave. NW Washington, DC
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 Case 1:19-cv-03185-RDM Document 96 Filed 05/24/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENZO COSTA, et al., Plaintiffs,
v. BARBARA J. BAZRON, et al.,
Defendants.

Civil Action No. 19-3185 (RDM)

ORDER For reasons set forth in the accompanying Memorandum Opinion, Dkt. 95, the Court concludes that Plaintiffs have established that they are entitled to some, but not all, of the preliminary relief they seek. Accordingly, it is hereby ORDERED that Plaintiffs’ motion for a preliminary injunction, Dkt. 87, is GRANTED in part and DENIED in part. It is further ORDERED that: 1. Exposed Patients. To the extent medically and psychiatrically practicable, Defendants
shall isolate individuals who have been exposed to COVID-19 in individual quarantine spaces and shall minimize movement outside of the isolation space. When it is necessary for isolated individuals to leave their rooms, Defendants shall require (to the extent possible and consistent medically and psychiatrically practicable) that the isolated patient wear a medically suitable mask. Likewise, when it is necessary for another person to enter a room occupied by an isolated patient, that person shall (to the extent medically and psychiatrically practicable) wear suitable protective equipment, including a medically suitable mask. Isolation of a patient who has been exposed to COIVD-19 may discontinued after the patient receives two negative tests at least 24 hours apart or if the

Case 1:19-cv-03185-RDM Document 96 Filed 05/24/20 Page 2 of 3
patient is not symptomatic for 14 days. Newly admitted patients who have tested negative and who do not demonstrate any symptoms shall be considered “exposed” and subject to the conditions set out in this paragraph. 2. Staff Assignment Restrictions. To the extent medically and psychiatrically practicable, health care personnel and other staff shall be assigned daily to only one unit. If health care personnel work overtime, they shall, if medically and psychiatrically practicable, be assigned to the same unit where they worked that day. 3. Point prevalent testing (“PPS”). To the extent they have not already done so, Defendants shall promptly complete the second point prevalence survey to determine the spread of COVID-19 among staff and, to the extent medically and psychiatrically practicable, residents at Saint Elizabeths Hospital. A single test for each staff member or patient is sufficient for purposes of the PPS. If a staff member is found to be COVID positive, the staff member must be excluded from the Hospital for 14 days and until the staff member tests negative for COVID-19 on two consecutive occasions, at least 72 hours apart. Following completion of the second PPS test, Saint Elizabeths shall complete an additional PPS every two weeks pending further order of the Court. Defendants shall provide updates to the Court and to Plaintiffs’ counsel on the day following the completion of each further PPS. When Defendants conclude that further PPS testing is no longer warranted in light of improved conditions at the Hospital, they shall meet and confer with Plaintiffs and shall file a joint status report with the Court setting forth the parties’ respective positions regarding the termination of this requirement. 4. Additional Amici Recommendations. In order to streamline further litigation in this a matter, Defendants shall file a status report on or before June 8, 2020, indicating whether they have considered implementing the recommendations set out by amici and detailing: (i) which, if any, recommendations they have adopted, (ii) a timeline for any
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Case 1:19-cv-03185-RDM Document 96 Filed 05/24/20 Page 3 of 3 recommendations that they plan to adopt, (iii) which recommendations they have rejected and the grounds for rejecting them, and (iv) which, if any, recommendations they require additional time to consider.
5. Persons and Entities Bound. This Order is binding on Defendants, their officers, agents, servants, employees, and attorneys, and on other persons acting in concert with them. SO ORDERED. /s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge
Date: May 24, 2020
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENZO COSTA, et al., Plaintiffs,

v.

Civil Action No. 19-3185 (RDM)

BARBARA J. BAZRON, et al., Defendants.

MEMORANDUM OPINION Plaintiffs Enzo Costa, Vinitia Smith, and William Dunbar, three patients who are indefinitely and involuntarily committed to the District of Columbia’s care and housed at Saint Elizabeths Hospital (“Saint Elizabeths” or the “Hospital”), bring this action on behalf of themselves and a putative class of similarly situated persons. Plaintiffs allege that the District, the Director of the D.C. Department of Behavioral Health, and the Chief Executive Officer of the Hospital have violated the constitutional rights of patients at Saint Elizabeths by failing to ensure that they are housed in safe conditions in the face of the ongoing COVID-19 pandemic and by failing to provide them with adequate mental health treatment during the pandemic. See Dkt. 50. They further allege that Defendants have continued to detain patients deemed “ready for discharge” in violation of the Americans with Disability Act (“ADA”), 42 U.S.C. §12131 et seq. and the Constitution. Dkt. 87 at 6. On April 25, 2020, the Court granted Plaintiffs’ motion for a temporary restraining order (“TRO”) in part, Dkt. 59, and ordered that Defendants adopt certain infectious disease control and prevention measures and that they provide periodic reports to the Court, Dkt. 60. The Court later extended the TRO and expanded it in two respects relating to

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infectious disease control and prevention. Dkt. 83. Plaintiffs now seek to convert the TRO into a preliminary injunction and request that the preliminary injunction also include relief relating to the Hospital’s provision of mental health services and the discharge of patients. Dkt. 87. Defendants oppose the motion. Dkt. 90. For the reasons explained below, the Court will convert certain aspects of the TRO into a preliminary injunction but will deny Plaintiffs’ other requests for preliminary relief.
I. BACKGROUND The Court has recounted much of the relevant factual background and procedural history at length in its earlier memorandum opinions, see Costa v. Bazron, 2020 U.S. Dist. LEXIS 73944, at *2–14 (D.D.C. Apr. 25, 2020) (“Costa I”); Costa v. Bazron, 2020 U.S. Dist. LEXIS 83565, at *2 (D.D.C. May 11, 2020) (“Costa II”), and will only summarize and add to that background as necessary for the pending motion. Saint Elizabeths is the District of Columbia’s “only public psychiatric facility for individuals with serious and persistent mental illness who need intensive inpatient care to support their recovery.” Dkt. 50 at 7 (Am. Compl. ¶ 25). “The [H]ospital can support a census of 296 patients and has a workforce of 786 staff members.” Dkt. 81 at 3. The named plaintiffs in this case are three patients indefinitely and involuntarily committed to the District of Columbia’s care and housed at Saint Elizabeths. Id. at 6–7 (Am. Compl. ¶¶ 19–22). According to counsel for Defendants, each of the named plaintiffs was committed following a verdict of not guilty by reason of insanity, and each may be released only with a court order. See May 22, 2020 Hrg. Tr. (Rough at 38). The COVID-19 pandemic is, by now, well-known to all. On March 20, 2020, Saint Elizabeths “identified” the first case of COVID-19 at the facility “but obtaining the . . . test and
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the [test] results [for that patient] was delayed until April 1, 2020.” Dkt. 81 at 3. On April 13, 2020, less than two weeks after the Hospital publicly reported the first case, it reported that “28 patients and 43 staff had tested positive for COVID-19,” that “105 patients were in either isolation or quarantine,” and that “four patients ha[d] died.” Dkt. 36 at 3.
Within days of that public report,1 Plaintiffs moved for a TRO, asserting that the rapid spread of the virus at the Hospital was caused by, among other things, Defendants “failure to implement CDC Guidance regarding testing of symptomatic individuals, medical isolation of symptomatic individuals, [and] quarantine of persons who test positive for COVID-19.” Dkt. 36 at 3. Plaintiffs also argued that the Hospital failed to comply with CDC guidance with respect to social distancing, mask use, and hygienic practices. See, e.g., Dkt. 39-6 at 1 (Costa Decl. ¶¶ 4– 7); Dkt. 39-6 at 1–3 (Guzman Decl. ¶ 3a–c); see also Dkt. 42-5 at 5 (Pontes Decl. ¶ 10) (attesting that staff does “as much as they can to ensure patients practice social distancing,” but reporting that it “is difficult to enforce without impinging on patient autonomy”); id. at 6 (Pontes Decl. ¶ 13) (attesting that patients have access to face masks upon request and that “[s]ome patients choose to wear masks, others do not”). Finally, Plaintiffs maintained that the Hospital had also fallen short in its provision of mental health services during the pandemic and, in particular, that the Hospital was not taking steps to ensure that the patients received the mental health care they require (such as by providing remote alternatives for group and individual therapy); was not updating mental health treatment plans to account for pandemic-related stress; and was not releasing eligible patients into community-based programming. See, e.g., Dkt. 39 at 33.
1 Although the motion for a TRO was filed on April 18, 2020, Plaintiffs had filed a motion for an emergency hearing two days prior, on April 16, 2020. See Dkt. 36.
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After expedited proceedings that focused on the most pressing issues, the Court granted Plaintiffs’ motion for a temporary restraining order in part. Dkt. 59. Among other things, the TRO required Saint Elizabeths, “[t]o the extent medically and psychiatrically practicable,” to isolate individuals who had been exposed to COIVD-19; to “conduct clinical evaluations prior to releasing patients suspected of having COVID-10 . . . from isolation” and, in cases involving heightened “clinical suspicion,” to “administer test-based criterion of two negative tests . . . prior to discontinuing isolation;” and to report to the Court and Plaintiffs’ counsel regarding compliance with these requirements. Dkt. 60. As the Court noted in its memorandum opinion, by April 23, 2020, forty-three Saint Elizabeths patients had tested positive for the virus and seven had died—a mortality rate magnitudes higher than the rate for the District as a whole. See Dkt. 80 at 48 (estimating that the Hospital’s mortality rate was “40 times” that of the general population in the District).
Following the entry of the TRO, the Court appointed Dr. Ronald Waldman, Ms. Joan Hebden, and Dr. Patrick Canavan as amici curiae to conduct an investigation and to provide information to the Court relating to a list of questions relevant to Plaintiffs’ claims. Dkt. 68. On May 11, 2020, the amici filed their reports with the Court, summarizing their findings and recommendations. Dkt. 78; Dkt. 81. That same day, the Court found that good cause existed to extend the TRO until May 22, 2020 because (1) the parties needed time to brief Plaintiffs’ motion for preliminary injunction; (2) the public health crisis at the Hospital was ongoing; and (3) Defendants good faith efforts to comply with the TRO did not obviate the need for courtordered relief. Dkt. 82. The Court further found that the TRO should be expanded to require Defendants to conduct “point prevalence surveys” (“PPSs”) and to restrict cross-unit staff
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movements—both CDC recommended measures that amici found the Hospital had yet to implement in important respects.
Plaintiffs now move to convert the TRO into a preliminary injunction and to include additional relief that goes beyond that included in the TRO. Dkt. 87. Defendants oppose Plaintiffs’ motion. Dkt. 90. The Court heard oral argument on the motion earlier yesterday. To date, thirteen Saint Elizabeths patients and one staff member have died from the virus.
II. LEGAL STANDARDS “Preliminary injunctive relief is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.’” Banks v. Booth, No. 20-849, 2020 U.S. Dist. LEXIS 68287, at *15 (D.D.C. Apr. 19, 2020) (quoting Sherley v. Sebelius, 644 F.3d 388, 392, (D.C. Cir. 2011)). To obtain a preliminary injunction, a movant “must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014). When seeking such relief, “the movant has the burden to show that all four factors, taken together, weigh in favor of the injunction.” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)) (internal quotation marks omitted). Before the Supreme Court’s decision in Winter v. NRDC, 555 U.S. 7 (2008), courts in this circuit applied a “sliding-scale” approach under which “a strong showing on one factor could make up for a weaker showing on another.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). Since Winter, the D.C. Circuit has hinted on several occasions that “a likelihood of success is an independent, free-standing requirement,” id. at 393 (quotation omitted), but it “has not yet needed to decide th[e] issue,” League of Women Voters of
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U.S. v. Newby, 838 F.3d 1, 7 (D.C. Cir. 2016). “In light of this ambiguity, the Court shall

consider each of the [four] factors and shall only evaluate the proper weight to accord the

likelihood of success if the Court finds that its relative weight would affect the outcome.” Banks,

2020 U.S. Dist. LEXIS 68287, at *7.

III. ANALYSIS

A. Likelihood of Success On The Merits

The Court must first consider whether Plaintiffs have established a likelihood of success

on the merits.

1.

Due Process

“[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) (citing Youngberg v. Romeo, 457 U.S. 307 (1982)). Involuntarily “committed

persons have a constitutional right, protected by the due process clauses of the Fifth and

Fourteenth Amendments, in the government meeting that obligation.” Costa I, 2020 U.S. Dist.

LEXIS 73944, at *16. In Youngberg v. Romeo, 457 U.S. 307 (1982), the Supreme Court held

that because “[p]ersons who have been involuntarily committed are entitled to more considerate

treatment and conditions of confinement than criminals whose conditions of confinement are

designed to punish,” id. at 321–22, the “deliberate-indifference standard” applicable to prisoners’

rights is not controlling in cases involving involuntarily committed persons, id. at 312 n.11.

Instead, “the proper balance between the legitimate interests of the State and the rights of the

involuntarily committed” is reflected by a “professional judgment” standard. Id. at 321. The

parties agree that the Youngberg provides the applicable standard for assessing Plaintiffs’ due

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process claims. See May 22, 2020 Hrg. Tr. (Rough at 13) (“We agree that it is the Youngberg standard.”).
Under the Youngberg standard, “liability may be imposed only when the decision by the professional [constitutes] such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Id. at 323. In assessing the choices made, it is not appropriate for a court to “specify which of several professionally acceptable choices should have been made,” but, at the same time, the court must “make certain that professional judgment in fact was exercised.” Id. at 321 (quotation omitted). Although an involuntarily committed person need not show deliberate indifference to prevail, the Youngberg standard “requires more than simple negligence” on the part of the State. Kulak v. City of New York, 88 F.3d 63, 75 (2d Cir. 1996); see also Patten v. Nichols, 274 F.3d 829, 843 (4th Cir. 2001) (collecting cases holding that Youngberg requires more than negligence but less than deliberate indifference). This deferential standard recognizes that judges are not “better qualified than appropriate professionals” to make decisions relating to the physical and mental health of patients and that, to the extent possible, “interference by the federal judiciary with the internal operations of . . . institutions [for involuntarily committed individuals] should be minimized.” Youngberg, 457 U.S. at 322. In assessing whether a decisionmaker exercised professional judgment, moreover, the Court must apply the test in light of all of the relevant circumstances: here, the rapidly evolving demands on the decisionmakers but also the devastation caused at the Hospital by the virus. The Court cannot treat the prevalence of the virus and the number of deaths it has caused at the Hospital as prima facie evidence of a failure to exercise professional judgment, nor can it ignore that troubling context.
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Plaintiffs’ due process claims fall into two general categories: (1) infectious disease control and prevention measures and (2) the provision of mental health care. The Court will consider each category in turn.
a. Infectious Disease Control and Prevention Measures The Court has already issued two opinions analyzing Defendants’ infectious disease control and prevention measures and has concluded that their response has, at least in certain respects, substantially departed from accepted professional judgment. The present motion does not mirror Plaintiffs’ motion for a TRO, however, in four respects. First, Defendants now point to evidence of their compliance with the Court’s orders and to improvements they have made in their efforts to stem the spread of the virus to suggest that injunctive relief is no longer warranted. See, e.g., Dkt. 90 at 46 (“[T]he District’s reports to the Court confirm the Hospital’s continued compliance with the measures the Court has ordered.”). Although the Court commends Defendants for implementing those measures, Defendants cannot claim that the need for an injunction is now moot because the Hospital has “ceased its wrongful conduct,” Taylor v. Resolution Trust Corp., 56 F.3d 1497 (D.C. Cir. 1995), particularly where it did so following the entry of a TRO. A “‘court’s power to grant injunctive relief survives discontinuance of the illegal conduct,’ . . . because the “‘purpose . . . is to prevent future violations.’” U.S. Dep’t of Justice v. Daniel Chapter One, 89 F. Supp. 3d 132, 143 (D.D.C. 2015), aff’d, 650 F. App’x 20 (D.C. Cir. 2016) (quoting United States v. W.T. Grant Co., 345 U.S. 629 (1953)). If compliance with the terms of a TRO were sufficient to defeat entry of a preliminary injunction, few—if any—cases would make it past the TRO stage. That is true even when, as here, a defendant has acted conscientiously and in good faith.
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Second, Defendants point to new evidence regarding the Hospital’s efforts to combat the spread of the virus, both before and after entry of the TRO. In granting Plaintiffs’ motion for a TRO, the Court acknowledged that “additional development of the record might show that Defendants are taking sufficient precautions not evident on the current record.” Costa I, 2020 U.S. Dist. LEXIS 73944, at *25. Since the Court issued that opinion, the record has grown by hundreds of pages, including additional declarations and, importantly, the report of the Courtappointed amici. The Court will discuss this evidence below in the context of each of the alleged deficiencies in the Hospital’s response.
Third, relying on the reports and recommendations of the Court-appointed amici, Plaintiffs seek to expand the scope of the injunction in certain respects. Those reports and recommendations, and the extraordinary efforts of amici more generally, have been of invaluable assistance to the Court and the parties. The Court will address the additional measures recommended by amici below in the context of considering each of Plaintiffs’ requests for relief.
Fourth, Defendants conceded at the TRO stage “that Saint Elizabeths should be doing what is consistent with CDC guidance,” Dkt. 80 at 57, but they now offer a more nuanced position. Although they maintain that the Hospital has, in fact, complied with CDC guidance in all material respects, they also contend that the Youngberg standard does not demand compliance with that guidance; rather, it requires only that the decisionmakers exercise professional judgment, which might not always track the guidance. See Dkt. 90 at 25 (“[P]laintiffs are incorrect that a deficiency in care alone would establish a violation of their due process rights.”). In the abstract, Defendants are correct that the failure to follow CDC guidance does not mean that the Hospital failed to exercise professional judgment. It is not difficult to imagine times, for example, when the CDC guidance might be incompatible with the vital needs of a patient
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suffering from severe mental illness. But given the extraordinary threat to life and safety posed by the rapid spread of the virus among the Hospital’s patients, a failure to comply with significant CDC guidance raises the question why the guidance was not followed. As noted above, thirteen patients (and one member of the staff) have died and 79 patients have been infected. See Dkt. 87-1 at 9. Although the population at the Hospital has declined over the past two months making mathematical precision difficult, roughly one out of every twenty patients has died and more than one out of every three patients have been infected. Against this tragic backdrop, Defendants at least bear the burden of coming forward with some identified reason based in professional judgment for failing to comply with CDC COVID-19 guidance. See Youngberg, 457 U.S. at 321 (observing that the Constitution requires that “courts make certain that professional judgment in fact was exercised”).
Although Defendants are surely right that the “unfortunate circumstances” at the Hospital do not, standing alone, amount to a constitutional violation, see Dkt. 90 at 29–30 (arguing that there is no res ipsa loquitor principle for constitutional torts), the extraordinary circumstances at the Hospital inform the baseline professional judgment against which to measure Defendants’ response. At least with steps that could stem the spread of the virus at the Hospital, a failure to comply with the CDC guidance requires some explanation grounded in professional judgment.
With this context in mind, the Court now turns to the challenged decisions. i. Isolation and Quarantine Policies
The parties (and amici) agree that the Hospital is now following many of the CDC’s recommendations regarding isolation and quarantine. See, e.g., Dkt. 81 at 14 (discussing the practices amici observed during on an on-site visit conducted on May 5, 2020 and remotely through video cameras). But the parties draw different conclusions from the current state affairs.
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In Plaintiffs’ view, it was this litigation that led to the improved circumstances, and a preliminary injunction is necessary to protect their safety so long as the virus remains present at the Hospital. See 87-1 at 6–7 (“While the Hospital has modified certain practices in response to this lawsuit, these measures have not been enough.”). Defendants disagree on two grounds. They first assert that there is no ongoing due process violation to remedy. Second, they contend that it was never the case that “Saint Elizabeths ‘was housing individuals with COIVD-19 symptoms together with non-symptomatic individuals.’” Dkt. 90 at 31.
Defendants’ first theory requires little discussion. To the extent Plaintiffs are correct and the Hospital failed to isolate symptomatic patients (who had not yet been tested) from nonsymptomatic patients until ordered to do so, mere compliance with the existing TRO does not obviate the need for preliminary relief. See Mays v. Dart, No. 620-2134, 2020 U.S. Dist. LEXIS 73230, at *94 (N.D. Ill. Apr. 27, 2020) (converting a TRO that directed a prison to implement measures to protect detainees from COVID-19 into a preliminary injunction even though it appeared that the defendant had complied with the TRO); see also Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2003) (“[A] defendant cannot automatically moot a case simply by ending its unlawful conduct once sued.”); United Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l, 563 F.3d 257, 275 (7th Cir. 2009) (recognizing that a district court has discretion to find that cessation is “not voluntary” where cessation occurs “only after a lawsuit has been filed”).
Consideration of Defendants’ second theory, however, requires an understanding of the factual record, as supplemented in the parties’ most recent submissions. According to Plaintiffs, before they brought this suit, the Hospital was housing individuals with COVID-19 symptoms together with non-symptomatic individuals. Moreover, even after symptomatic (and exposed) patients were separated from non-symptomatic (and non-exposed) patients, the Hospital did not
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quarantine symptomatic (and exposed) patients from one another. Dkt. 87-1 at 20. In support of this contention, Plaintiffs cite several declarations. They cite to Enzo Costa’s April 17, 2020 declaration, attesting that a “patient in [his] unit [was] symptomatic for COVID-19” yet was simply “self-quarantining in his room” in the unit. Dkt. 39-6 at 1 (Costa Decl. ¶ 6). They cite to William Dunbar’s April 17, 2020 declaration, which attests that until April 15, 2020, two COVID-positive patients remained in his unit, with asymptomatic patients and potentially exposed patients, and continued to interact with other members of unit “in the common areas where they watch[ed] television or go water.” Dkt. 39-7 at 1 (Dunbar Decl. ¶ 5). According to Dunbar, he was then transferred to the Therapeutic Learning Center (“TLC”), where a unit had been set up for exposed patients who were not symptomatic. Dkt. 87-6 at 1 (Dunbar Supp. Decl. ¶ 4). Dunbar further attests that patients were “not tested for COVID-19” before being transferred to the TLC and that it is his “understanding that most patients who had been moved from 2A to the TLC . . . ended up contracting COVID-19;” Dunbar himself contracted the virus after being transferred to the TLC. See id. (Dunbar Supp. Decl. ¶ 5).
Plaintiffs also point to the declaration of Yi-Ling Elaine Tu, the Infectious Control Coordinator for Saint Elizabeths, who notes that the Hospital had established the Patients Under Investigation (“PUI”) unit for patients who were suspected of having COIVD-19 and who were awaiting test results, but who makes no reference to quarantining within that unit—that is, taking steps to ensure that those suspected cases that were positive did not spread the virus to those suspected cases who were negative. Dkt. 42-5 at 4 (Tu Decl. ¶¶ 7–8). Finally, Plaintiffs point to Dr. Waldman’s conclusion that, even after the TRO was issued, the Hospital had accomplished the cohorting of the patient population “reasonably well, but obviously imperfectly.” Dkt. 77 at 8.
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In response, Defendants also invoke Tu’s original declaration, which explained that the Hospital had, prior to issuance of the TRO, housed “all of the . . . known positive COVID-19 cases . . . in two specific units . . . and that patients that exhibits symptoms [were] referred to the Patients Under Investigation Unit (PUI).” Dkt. 42-5 at 4 (Tu Decl. ¶ 7). To this, Defendants now add a supplemental Tu declaration, which explains that the decision to house patients in the TLC was made “to minimize the transmission of COVID-19” and so that the Hospital could transform unit 2A into a “COVID-19 positive unit.” Dkt. 90-1 at 6 (Tu Suppl. Decl. ¶ 12). She further attests that, prior to implementing that decision, she discussed it “via telephone and email with Dr. Joel Selanikio from DC Health” and that, two days2 after the measure was implemented, the CDC and DC Health visited Saint Elizabeths and “agreed with the Hospital’s decision to move 17 asymptomatic patients from unit 2A to the [TLC] gymnasium.” Id.; see also Dkt. 90-2 at 4 (Selanikio Decl. ¶ 9) (attesting that he advised Tu that the Hospital could use the TLC to house asymptomatic patients “if necessary, to create a unit to cohort patients”). On April 24, 2020, a little over a week after the measure was implemented (and the same day the Hospital began receiving additional testing kits), “all patients on the TLC were moved back to a regular unit.” Dkt. 90-1 at 6 (Tu Supp. Decl. ¶ 12). Finally, Defendants cite to Dr. Waldman’s observation that the Hospital “has made a remarkable effort” to quarantine and isolate patients but that “[d]ue to delays in determining the viral status of all patients and [staff], along with the unavoidable mobility of [staff] into the community, maintaining the integrity of these units has proven to be challenging.” Dkt. 81 at 4.
2 Dunbar attests that he was moved to the TLC on April 15, Dkt. 39-7 (Dunbar Decl. ¶ 6), and Tu states that CDC and DC Health visited Saint Elizabeths on April 17, Dkt. 90-1 at 6 (Tu Supp. Decl. ¶ 12).
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The flaw with Defendants’ response is that it does not address the principal ground on which the Court issued a TRO relating to the Hospital’s quarantining and isolation polices. As the Court explained:
According to Defendants, the Hospital has already addressed the first pressing issue that Plaintiffs raise—the alleged failure to isolate patients exposed to the virus—by treating all units as “quarantined.” . . . The problem with that assertion is that Defendants’ implementation of the quarantine does not satisfy CDC standards. The CDC recommends that long-term care facilities “[e]nforce social distancing among residents,” “[e]nsure all residents wear a cloth face covering . . . whenever they leave their room or are around others,” and, if the virus “is identified in the facility, restrict all residents to their rooms[.] Dkt. 59 at 13. Most importantly, Defendants fail to explain what “professional judgment” would support housing individuals exposed to the virus in the same space, without isolating patients from one another within that space to prevent those who were positive from infecting those who were not. Cf. Dkt. 55-1 at 6 (CDC LTCF Guidance) (instructing that “[i]f there are [COVID-19 positive] cases in the facility, [the facility should] restrict residents (to the extent possible) to their rooms except for medically necessary purposes”); see also Dkt. 39-3 at 3 (Stern Decl. ¶ 12) (declaration of Plaintiffs’ expert, Dr. Marc Stern, indicating that the patients at the Hospital are “placed at an imminent and heightened risk from COVID-19,” if, among other things, the Hospital fails “to place [a] person who ha[s] had close contact with [a] person suspected or proven to have COVID-19 in isolation in a timely manner”); see also id. at 5 (Stern Decl. ¶ 16) (“The Hospital must establish clinically effective quarantine for all individuals believed to have been exposed to COVID-19, but are not yet symptomatic[.]”). The only evidence that Defendants offer that might controvert the Court’s prior findings that the Hospital had substantially departed from professional judgment by not isolating exposed patients from one another is the declaration of Dr. Joel Selanikio, an epidemiologist with approximately 25 years of experience who served as a consultant for the D.C. Department of
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Health’s “COVID-19 Response,” Dkt. 90-2 at 2–3 (Selanikio Decl. ¶¶ 2,6).3 He attests that based on his conversations with Tu, his “understanding of Saint Elizabeths infections control measures, his own personal observations of the Hospital, and his conversations with CDC personnel during his visit with them to the facility, he believes “that Saint Elizabeths practices related to the cohorting, isolation, and quarantine of patients at that time complied with CDC and DOH guidance.” Id. at 4 ((Selanikio Decl. ¶ 11). This conclusory assertion, however, neither (1) refutes the premise that, before Plaintiffs moved for a TRO, the Hospital was not isolating exposed patients from other patients nor (2) demonstrates that such an evidently perilous practice was a product of professional judgment. Indeed, Defendants’ own representations suggest that they only began treating all units “as though they are in quarantine” after Plaintiffs sought a TRO. See 55-1 at 6 (CDC guidance recommending that all residents be isolated once there is a positive case); 53-2 at 2 (indicating, on April 23, 2020, that the Hospital had previously not placed all units on quarantine but had now adopted that policy).
The Court, accordingly, concludes that the foundation for its prior order relating to the need to isolate exposed patients remains sound and that Plaintiffs have demonstrated a likelihood of success on merits with respect to the need for this isolation (to the extent medically and psychologically practicable).
3 Although the supplemental Tu declaration indicates that the Hospital was conducting some isolation for symptomatic patients prior to the TRO, see Dkt. 90-1 at 5 (Tu Supp. Decl. ¶ 8) (indicating that, as of March 30,2020, the Hospital was isolating two or three patients at a time in separate rooms if they “exhibited potential COVID-19 symptoms”), it does not rebut Plaintiffs’ evidence that exposed patients were not being isolated. It bears emphasis, moreover, that the existing CDC guidance recommended that all residents, not merely symptomatic and exposed patients, be isolated once there is a case of COVID-19 in the facility. See 55-1 at 6.
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ii. Census Reduction Plaintiffs next focus on the Defendants’ purportedly deficient efforts to reduce the patient population, sometimes referred to as the “census.” Neither party disputes that reducing the census is recommended by the CDC and that it is “one of the best ways to continue to move toward the elimination of the virus.” Dkt. 81-1 at 1. It is also undisputed that the Hospital has reduced the “census by 33%” since the pandemic began. Dkt. 81 at 9; see also Dkt. 90-4 at 11 (Gontang Supp. Decl. ¶ 26) (“Since March 2019, the Hospital has successfully discharged 525 patients to the community.”). Despite that “significant accomplishment,” Dkt. 78 at 9, Plaintiffs urge the Court to “order Defendants to periodically report on whether they are following . . . recommendations [made by the amici] and [on] their efforts to further reduce the patient census.” Dkt. 87-1 at 22. In support of their request, Plaintiffs contend that the bulk the patients that the Hospital discharged were released “only pursuant to court order[s]” in the patients’ underlying proceedings and that “the number of discharges ‘has decreased noticeably since the middle of April.” Id. (quoting Dkt. 78 at 9). In response, Defendants offer the declaration of Dr. Richard Gontang, “the Chief Clinical Officer for Saint Elizabeths.” Dkt. 90-4 at 2 (Gontang Supp. Decl. ¶ 2). He acknowledges that prior to the pandemic the Hospital met twice monthly with the Department of Behavioral Health (“DBH”) regarding the discharge of patients but that those “meetings have been temporarily suspended while both DBH and Saint Elizabeths focus on COVID-19 pandemic response.” Id. at 11 (Gontang Supp. Decl. ¶ 27). He further reports, however, that the Hospital has continued to “work closely” with DBH to coordinate discharges and that the Hospital’s discharge rate in March and April was “consistent with pre-COVID averages.” Id.
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As this evidence demonstrates, the discharge rate has “slowed” only relative to the Hospital’s push to discharge a much-higher-than-usual number of patients at the onset of the pandemic. See Dkt. 78 at 4 (noting that “a substantial increase in discharges, has brought the census to historic low”). In any event, even if the discharge rate has slowed, that would be unsurprising given that “[d]ischarge has become more difficult” due to conditions surrounding the pandemic. Id. Indeed, guidance from the Substance Abuse and Mental Health Services Administration (“SAMHSA”), which Plaintiffs have offered in support of their motion, warns that in light of COVID-19 discharge planning may be “more difficult,” and it recommends that treatment teams and staffs “should adjust with this expectation.” Dkt. 87-3 at 4.
Given these circumstances, the Court concludes that Plaintiffs have not established a likelihood of success with respect to their challenge to Defendants’ census reduction efforts.
iii. Staff Cross-Contamination As explained by the Court-appointed amici, one of “[t]he greatest impediments to interrupting transmission of virus within the facility is the re-introduction of virus from the outside community.” Dkt. 81-1 at 5. When staff return to the community after work, they may be exposed to the virus; staff who then return to work and who are “asymptomatic or presymptomatic carriers of the virus,” moreover, “can easily go undetected.” Id. Amici emphasize that because of this risk effective infectious disease control requires reducing “traffic within the hospital”—specifically, that the Hospital must reduce staff movement between COVID positive and COVID negative units. Dkt. 77 at 10–11. Amici also underscore that the Hospital has “not respected” this measure in the past. Id. Amici therefore recommend the Court require Defendants to comply with the CDC’s guidance that staff should “be assigned daily to only one unit” and, if staff work overtime, that they work “on the same unit they have been working [on]
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throughout the day.” Dkt. 81-1 at 5; see also Dkt. 54-1 at 10 (CDC recommending that facilities assign dedicated HCP to COVID positive or suspected units, meaning “HCP are assigned to care only for these patients during their shift”). At the same time, amici recognize that a psychiatric hospital is prone to “violent incidents [that] occasionally . . . require a hospital-wide response from . . . staff that may require rapid intervention to take place on a patient unit to which they are not assigned.” Dkt. 81-1 at 5. In those circumstances, amici urge that “the physical safety of staff and patients should be considered the highest priority,” even if it risks spreading the virus between units. Id.
Against this backdrop, the Court has already concluded that the Hospital’s unexplained failure to implement appropriate restrictions on staff assignments constituted a substantial departure from professional judgment. See Dkt. 82 at 7–8; Dkt. 83 at 2. Plaintiffs now request that the Court extend this order “through the duration of the COVID-19 crisis.” Dkt. 87-1 at 24. Defendants, in turn, dispute that the “movement of staff across units runs afoul of CDC guidance.” Dkt. 90 at 33. Rather, they posit that the CDC guidance recommends only that facilities “should” have units for COVID-positive residents with dedicated staff and that the facilities should merely “consider creating a staffing plan” for those units. Id. (quoting Dkt. 90-8 (the CDC Long-Term Care Facility Guidance Document)). This argument misses the point.
Although the CDC recommendations may not mandate dedicated staff in all circumstances, amici have made clear that it is critically important to reduce cross-staff movement in the present context, and Defendants have offered no evidence that cross-staffing under these dire circumstances is a product of considered professional judgment. Amici’s recommendation, moreover, was not merely an abstract suggestion about general best practices. Rather, after conducting an extensive and thorough assessment of conditions at the Hospital,
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amici explained the reasons why staff are the most likely sources of reintroduction and further spread of COVID-19 at Saint Elizabeths. See Dkt. 81-1 at 5. Thus, even if CDC guidance does not require dedicated staff in all circumstances, amici have persuasively explained why it is essential in the present context.
Defendants own actions following the Court’s order support the conclusion that the exercise of acceptable professional judgment requires restricting cross-unit staff movement. In particular, Defendants have offered a supplemental declaration by Martha Pontes, “the Interim Chief Nurse Executive for Saint Elizabeths.” Dkt. 90-7 at 2 (Pontes Supp. Decl. ¶ 2). She attests that she “exercise[s] professional judgment in considering the need to properly and safely staff each unit to ensure patients receive adequate care and treatment.” Id. at 3 (Pontes Supp. Decl. ¶ 4). She also explains that “[o]nce a shift begins, it is relatively rare that reassignment occurs” but that she has “determined it is permissible in the following circumstances to ensure safe staffing levels” on all units: (1) “when a patient experiences a behavioral emergency that requires one-to-one staff supervision that could not otherwise be provided; (2) “when another staff member suddenly falls ill or suffers an injury;” (3) “when a patient requires external hospitalization with one-to-one staff supervision;” and (4) “when patient behavior creates a sudden change in the acuity and risk to others on a unit.” Id. at 3–4 (Pontes Supp. Decl. ¶ 5). She further attests that, whenever possible, “staff will be assigned for overtime on the same unit” but that, if “necessary to ensure adequate staffing,” overtime may be approved “to work on a different unit with the same COVID status or COVID-positive status.” Id. at 4 (Pontes Supp. Decl. ¶ 6).
Three things are notable about the Pontes declaration. First, it does not indicate—nor does any other evidence show—that the measures that Pontes attests are now in place were being
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taken or even considered prior to this litigation. Second, it offers no explanation about what prior policies existed or whether Defendants had exercised any professional judgment regarding the need to restrict staff movement. Third, it supports the proposition that, when Saint Elizabeths staff did exercise professional judgment, it aligned with the recommendations set forth by the CDC and amici. There is no evidence, however, that prior to this litigation a professional at Saint Elizabeths had exercised any considered judgment with respect to this issue.
The Pontes declaration does support a finding that the Hospital is currently exercising professional judgment with respect to cross-staffing. The question, then, is whether the Hospital’s past failure to do so warrants continued relief. Based on amici’s observations, it appears that the Hospital’s more cautious approach to cross-unit movement is a recent development. Ms. Hebden testified, for example, that “[s]taff really needs to . . . pay a lot more attention to it” and that she “would like to be very emphatic in saying that while in the past this has not been respected, there should be no mixing of staff between these units.” Dkt. 77 at 11. Given this history, it appears that the Hospital’s efforts to limit cross-staffing were, at least in part, a product of this litigation. As a result, even if Defendants are now restricting staff movement, there is still a “cognizable danger of recurrent violation” sufficient to warrant further injunctive relief. Daniel Chapter One, 89 F. Supp. 3d at 143–44.
Plaintiffs have demonstrated a likelihood of success on the merits with respect to crossstaffing.
iv. Testing Plaintiffs contend that the Hospital has failed to exercise professional judgment relating to testing in three respects.
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First, Plaintiffs argue that Defendants’ test-based release protocol was deficient prior to this litigation. At the TRO stage, the Court agreed, finding that Defendants had not followed the CDC-recommended protocol for returning symptomatic patients to the general population. Dkt. 59 at 16. As the Court explained, Defendants had “offered no evidence that they [were] evaluating patients who ha[d] received a negative test for ‘clinical suspicion’ prior to release.” Id. at 15–16. In briefing the instant motion, however, Defendants have now offered evidence to fill that gap—the supplemental Tu declaration. Tu now explains that her original declaration “did not fully state the Hospital’s practice at the time.” Dkt. 90-1 at 5 (Tu Supp. Decl. ¶ 9). At that time, she continues, “when a [patient under investigation’s (“PUI”)] result came back negative,” a “general medical officer or nurse practitioner conducted a physical examination to rule out clinical suspicion of COVID-19 infection.” Id. “A patient would not automatically be released from PUI isolation if clinical suspicion was found.” Id. In light of this additional evidence, and in the absence of controverting evidence, the Court is no longer persuaded that the Hospital’s release protocol was deficient.
Second, Plaintiffs contend that before they moved for a TRO “the Hospital was not timely or routinely testing patients with COVID-19 symptoms[] or individuals who ha[d] been exposed.” Dkt. 90 at 24. Defendants, in turn, have offered persuasive evidence that this shortcoming was not the result of a lapse in professional judgment. Dr. Selanikio attests, for example, that “[t]esting capacity for COVID-19 was severely limited through April 2020.” Dkt. 90-2 at 2–3 (Selanikio Decl. ¶ 8). He also attests that Tu “often requested increased testing capability for patients in Saint Elizabeths that went beyond the minimum recommended by the CDC and DOH.” Id. Likewise, Tu attests that she requested that testing kits be made available and that the Hospital “received its first 20 test kits” on April 9, 2020 “through the District of
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Columbia Department of Forensic Services.” Dkt. 90-1 at 4 (Tu Suppl. Decl. ¶ 7). She also explains that, at that time, “DC Health recommended testing only patients with symptoms related to COVID-19 and who fit the criterion for testing, according to the then-current DC Health Notice.” Id. at 4–5 4 (Tu Suppl. Decl. ¶ 7).
On the existing record, Plaintiffs’ contention regarding the level of testing falls short in several respects. To start, although resource constrains generally cannot “excuse constitutional violations,” Birrell v. Brown, 867 F.2d 956, 959 (6th Cir. 1989), Plaintiffs have offered no evidence that the shortage in tests was the result of a decision attributable to Defendants rather than a result of the nation-wide shortage in testing capacity. Absent such evidence, Defendants cannot be faulted for not conducting more extensive testing. Cf. Dkt. 92 at 12–13 (noting that on April 9, when the Hospital received 20 testing kits, it reported “142 patients who were symptomatic or exposed”). At oral argument, when the Court asked Plaintiffs’ counsel about this, counsel argued that Defendants had other avenues for testing these patients, such as transferring them to local hospitals. See May 22, 2020 Hrg. Tr. (Rough at 15). But, even if that is right, it has no bearing on whether the Court should grant the preliminary injunctive relief Plaintiffs seek. The Hospital now has the capacity to test all patients on the premises, so there is no need to issue an injunction that would require transporting patients to local hospitals for testing. Nor is there any reason to believe that the Hospital will, in the future, fail promptly to test any symptomatic or exposed patient or that the Hospital obtained the in-house testing equipment only because of this lawsuit. Finally, Plaintiffs have not shown that any patients who satisfied the then-existing guidance for testing, which was evidently premised on the shortage of testing capacity, was not tested. The lack of adequate testing likely contributed to the early
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spread of the virus at the Hospital. There is no evidence, however, that Defendants were to blame.
Third, and finally, Plaintiffs request that the Court direct Defendants to adopt recurring PPS testing, which both the CDC and amici recommend. As amici explain, the CDC recommends PPS testing both residents and staff in facilities with new, confirmed COVID-19 cases to control the spread of the disease. See Dkt. 82 at 6–7; see also CDC, Testing for Coronavirus (COVID-19 in Nursing Homes (Apr. 30, 2020), available at http://www.cdc.gov/coronavirus/2019-ncov/hcp/nurding-homes-testing.html. Initial and recurring PPS testing is important because undetected, asymptomatic patients and health care practitioners often contribute to the further spread of the virus. See Dkt. 82 at 6. After considering that evidence and amici’s detailed explanations about the critical need for PPS testing, the Court concluded that the failure to conduct PPS testing was likely a substantial departure from professional judgment. Id. at 6–7. As a result, the Court amended its TRO to direct Defendants to follow the PPS testing recommendation. Dkt. 83. Following an initial PPS, the Hospital identified twenty-one “employees who tested positive,” Dkt. 91 at 3, at least seventeen of which were “asymptomatic,” Dkt. 88 at 3.
Defendants do not dispute that amici have correctly identified the urgent need for PPS testing to stem the spread of virus as the Hospital; that the CDC also recommends PPS testing as part of a test-based infection control strategy; and that the initial PPS testing helped identify a significant number of asymptomatic, COVID-positive staff. Defendants also do not claim that any resource constraints impede their ability to conduct additional PPS testing (although they may be unable to test staff on leave and staff who are working remotely). See May 22, 2020 Hrg. Tr. (Rough at 34). Instead, they note only that the CDC did not recommend PPS testing
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until May 2, 2020. See Dkt. 90 at 31. But given the tragic circumstances at Saint Elizabeths, that does not explain why the Hospital waited over a week—and until after amici had impressed on the Court the critical need for PPS testing for staff—before beginning to test staff. Significantly, Defendants do not claim that they had planned on conducting PPS testing of staff before amici urged the Court to require that they do so, and, unlike with respect to other infectious disease control measures, Defendants have said nothing about their plans to continue periodic testing after the TRO expires. Cf. Dkt. 90 at 47 (indicating that Defendants “intends to continue the first three items in [P]laintiffs’ proposed order [even] . . . without Court-ordered relief”); Dkt. 87-10 at 2 (Proposed Order ¶ 4) (“Point Prevalence Surveys.”).
As amici explained, the need for PPS testing—and, in particular, testing staff who have contact with the outside community—is essential to stemming the spread of the disease at the Hospital. Amici further opined that, given the other measures that the Hospital has taken, the most likely source of the continued spread of the virus at Saint Elizabeths is staff. See, e.g., Dkt. 77 at 24 (“[W]e would expect that in light of the community prevalence of COVID-19 and the viral circulation, that we are going to potentially have introduction by staff.”). That opinion, moreover, proved prescient. When the Hospital tested its staff, as amici urged, it identified twenty-one COVID-19 positive employees, who were then placed on leave; most (if not all) of these employees were asymptomatic. See Dkt. 88 at 3; 93 at 3. Without that testing, it appears likely that some of these staff members would have unwittingly spread the virus to patients at the Hospital, restarting the cycle of infection.
Notably, Defendants have offered no justification sounding in professional judgment for not periodically testing all patients (with the exception of those who refuse to participate) and all staff (who are not on leave or working from home) for the virus—at least while the crisis at the
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Hospital continues. The Court, accordingly, concludes that Defendants’ delay in testing all staff and their lack of a plan to continue testing all patients and staff constitutes a substantial departure from professional judgment.
v. Staff Infection Control Practices The final infection control issue that Plaintiffs raise is a general concern about staff infection control practices. Relying on Ms. Hebden’s observations that the Hospital staff was not properly implementing infectious disease control in certain respects, Plaintiffs request that the Court “order independent monitoring to ensure that Defendants are complying with amici recommendations and CDC guidance regarding hygiene practices for the duration of the COVID-19 crisis.” Dkt. 87-1 at 28. Although amici identified some shortcomings, the Court is unpersuaded that imposing the drastic step of appointing an independent monitor is warranted at this time. There is evidence that the Hospital is making ongoing efforts to train staff about proper infection control measures. Tu attests, for example, that just last week the CDC provided training sessions and that D.C Department of health has assigned an “advisor that will be making on-site visits.” Dkt. 90-1 at 8–9 (Tu Supp. Decl. ¶ 19). She also indicates that “on an ongoing basis, . . . Nurse Educators will continue to offer the same training to all employees at the Hospital.” Id. Tu also explains that due to a recent increase in the Hospital’s supply of N95 masks the Hospital has now changed its “practices on respirator use,” and staff is no longer reusing masks in the way that Hebden had flagged as an issue. Id. at 8 (Tu Supp. Decl. ¶ 20). Given these measures, the Court is not convinced that appointment of an independent monitor is currently warranted. Should issues persist, Plaintiffs may renew this request.
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b. Mental Health Treatment The next category of claims that Plaintiffs advance concern mental health treatment. As Plaintiffs note and Defendants do not dispute, COVID-19 has had a significant impact on patient mental health, causing anxiety and stress to an already susceptible population. See generally Dkt. 78 (discussing Saint Elizabeths provision of mental health care before and during the pandemic). Plaintiffs contend that Defendants have not risen to the task of providing adequate mental health care in response to the pandemic. See Dkt. 87-1 at 30–35. They assert, moreover, that Defendants have not taken adequate steps to address the “blanket closures of treatment areas and [the] suspension of in-person therapy.” Id. at 34. To remedy these shortcomings, Plaintiffs request that the Court order Defendants to “develop alternative methods” of providing group treatments; to procure “iPads or similar devices for each patient,” along with other technology; and to “conduct an individual assessment” of each patient’s mental health needs. Dkt. 87-10 at 3–4 (Proposed Order). As a threshold matter, Defendants argue that Plaintiffs lack standing with respect to their mental-health-services claims because they “have not argued that the mental health care of [the non-party patients] could cause any injury to them in particular, and the relief they request would require the Hospital to alter the individual treatment plans of nearly 200 patients who are not parties to this case.” Dkt. 90 at 37. The Court must, accordingly, address standing before turning to the merits of these claims. The “irreducible constitutional minimum of standing requires: (1) that the plaintiff have suffered an ‘injury in fact’—an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual and imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of—the injury must be fairly
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traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to speculative, that the injury will be redressed by a favorable decision.” Bennett v. Spear, 520 U.S. 154, 167 (1997).
At oral argument, the Court asked Plaintiffs to address their standing to assert claims relating to the Hospital’s general mental-health-treatment practices, as opposed to practices directly affecting their personal interests. In response, Plaintiffs asserted that there is a nexus between the provision of mental health care to non-party patients and the named Plaintiffs because the named Plaintiffs require group treatment. In other words, Defendants’ failure to develop alternative group treatment methods and failure to acquire the technology needed to implement such measures are causing Plaintiffs harm because their well-being depends on the availability of group therapy. Assuming that the failure to provide alternative group therapy methods violates Plaintiffs’ constitutional rights, which the Court must assume for purposes of assessing standing, see Cutler v. U.S. Dep’t of Health & Human Servs., 797 F.3d 1173, 1179–80 (D.C. Cir. 2015) (courts must assume the merits of plaintiff’s claim in assessing standing), the nexus Plaintiffs have articulated is sufficient to establish standing, but only in a limited respect: Plaintiffs have standing under this theory but only to seek relief that might be required to remedy the Hospital’s failure to provide the them with some form (perhaps by videoconference) of group treatment.
The theory Plaintiffs advanced at oral argument is not broad enough, however, to encompass the sweeping, Hospital-wide relief that they seek. Cf. Inmates of Occoquan v. Barry, 844 F.2d 828, 841 (D.C. Cir. 1988) (“[O]nce a right is established the remedy chosen must be tailored to fit the violation.”). Plaintiffs have identified no theory of how Defendants’ alleged
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failure to take individualized mental health measures as to every patient at the Hospital, the vast majority of which are not currently parties to this case, even arguably causes Plaintiffs any injury, nor have they explained why Hospital-wide relief is needed to redress their asserted injuries. Perhaps recognizing that they cannot establish standing to press the full breadth of their claim, Plaintiffs request that the Court provisionally certify a class. Dkt. 92 at 19. But because the parties have not briefed this issue, the Court concludes that it would be premature even to provisionally certify a class.4 If Plaintiffs want to move for provision class certification, they are free to do so.
Having concluded that Plaintiffs have standing to challenge any deficiencies in the mental health care that they are personally receiving (or not receiving), the Court concludes that they have failed to meet their burden of establishing a likelihood of success on the merits. Plaintiffs focus largely on the curtailment of care, “including the closing of the [TLC], suspension of group therapy, anger management, and competency restoration classes,” and on the alleged failure of Defendants to “adequate steps to compensate of loss of this treatment, for example by using teletherapy or virtual therapy.” Dkt. 87-1 at 30–31. Although the Court recognizes the pressing need to provide mental health care to Plaintiffs, it is not yet persuaded that Defendants’ omissions violate constitutional proscriptions.
To begin, Plaintiffs do not dispute that Defendants’ decision to shut down in-person group therapy was a sound professional decision, see May 22, 2020 Hrg. Tr. (Rough at 25), nor could they. As Dr. Gontang explains, before the Hospital saw even its first infection, it decided “to suspend group therapy in the Therapeutic Learning Center,” because it “would present
4 At oral arguments, the Court asked Plaintiffs whether they were aware of any cases in which a court had agreed to provisionally certify a class where plaintiffs raised that request solely in a reply brief, and counsel was unable to identify any such case.
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unacceptable infection risks both from the movement of patients through the hospital and while congregated in the TLC.” Dkt. 90-4 at 3 (Gontang Supp. Decl. ¶ 4). It is that decision, moreover, that is largely responsible for what Plaintiffs characterize as a “dramatic” reduction in providing group therapy. In addition, as amici report, there has been “only a slight decline” in individual therapy. Dkt. 78 at 16. Consistent with that observation, Plaintiff Dunbar attests that he has been unable to attend his usual group therapy sessions, which were held in the TLC, but has “had sessions with [his] therapist on the phone each Thursday.” Dkt. 87-6 at 2 (Dunbar Supp. Decl. ¶¶ 15–17); see also Dkt. 87-5 (Costa Supp. Decl. ¶¶ 11–13) (similarly reporting that he is obtaining weekly therapy but that he has not attended in group therapy in the TLC).
Although much of the treatment that patients typically receive at the Hospital is not individualized, see Dkt. 78 at 11 (explaining that the TLC was a “linchpin[] of the Hospital’s “treatment delivery”), Defendants have made efforts to develop alternative methods of providing group treatment. As Dr. Gontang explains, even before the first COVID-19 case at the Hospital was identified and weeks before Plaintiffs filed their motion for a TRO, Saint Elizabeths began to develop plans to continue group therapy, including an initial plan that “contemplated conducting smaller group sessions on individual units by both on-unit providers” and other staff.” Dkt. 90-4 at 3 (Gontang Supp. Decl. ¶ 5). In addition, the Hospital developed a “telehealth plan, dated March 30, 2020,” which has been “approved by Hospital Management,” and which the Hospital has been working to implement. Id. at 3–4 (Gontang Supp. Decl. ¶ 6); see also id. (Gontang Supp. Decl. ¶ 7) (discussing how Dr. Gontang has worked with the Hospital’s IT department); see also Dkt. 78 at 17 (“Recognizing the need to modify treatment service delivery in the near term, the Hospital continues to plan a limited telehealth program on each unit to allow for remote group therapy”). Although the telehealth program has not been
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implemented due to funding and logistical hiccups, those issues have now been resolved. See id.

The delays, moreover, must be understood in light the Hospital’s “first priority . . . to protect

patients and staff from COVID-19.” Dkt. 90-4 at 5 ((Gontang Supp. Decl. ¶ 9).

All agree that the Hospital has failed to provide patients with all—or even a fraction—of

the psychiatric care that they received prior to the pandemic. On the present record, however,

the Court cannot conclude that the Hospital has substantially departed from professional

judgment, understood in light of the enormous challenges posed by the pandemic and the health

crisis at the Hospital. Undoubtedly more can be done—and needs to be done—to provide for the

mental health needs of a uniquely at-risk population. If the Hospital fails in its current efforts to

provide telehealth or other forms of mental health care to Plaintiffs, they can return to the Court

to seek preliminary relief. On the present record, however, judicial intervention is not yet

warranted.

2.

Monell

In their opposition brief, Defendants raise a further merits defense, albeit one that does

not turn on the extent to which the Hospital has provided Plaintiffs with acceptable medical and

psychiatric care. They contend, in particular, that Plaintiffs have not shown a likelihood of

success because their claims cannot clear the hurdle to municipal liability established in Monell

v. Dep’t of Soc. Servs. of New York, 436 U.S. 658 (1978). See Dkt. 90 at 39–41. In Monell, the

Supreme Court held that “a municipality cannot be held liable solely because it employs a

tortfeasor”—in other words, under § 1983, a municipality cannot be held liable on a respondeat

superior theory. 436 U.S. at 691. “Instead, it is [only] when execution of a government’s policy

or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to

represent official policy, . . . that the government . . . is responsible under § 1983.” Williams v.

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Johnson, 537 F. Supp. 2d 141, 154 (D.D.C. 2008) (citing Monell, 436 U.S. at 694). “[C]ourts have identified a variety of ways that a municipality may adopt a ‘policy or custom’ sufficient to support municipal liability.” Lightfoot v. District of Columbia, 273 F.R.D. 314, 320 (D.D.C. 2011).
In their reply brief, Plaintiffs argue that a municipality may be liable “where the constitutional harm [can] be tied to the actions of a municipal ‘policymaker,’ a category confined to those ‘persons who have ‘final policymaking authority [under] state law.’” Id. (quoting Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003), and then Triplett v. District of Columbia, 108 F.3d 1450, 1453 (D.C. Cir. 1997)); see also Thompson v. District of Columbia, 832 F.3d 339, 347–48 (D.C. Cir. 2016) (noting that a “single action can represent municipal policy where the acting official has final policymaking authority over the ‘particular area, or . . . particular issue’” (quotation omitted)). Here, Plaintiffs continue, Director Bazron is “a final policy maker for responding to emergencies at Saint Elizabeths,” and the “record reflects Director Bazron’s personal involvement in the Hospital’s response to COVID crisis.” Dkt. 92 at 21–22. In support of those contentions, Plaintiffs point to several provisions of the D.C. Code that give Director Bazron final policymaking authority over Saint Elizabeths and to evidence that Director Bazron has been personally involved in the Hospital’s response to COVID-19 crisis. Dkt. 92 at 21–22.
At oral argument, Defendants did not dispute that Director Bazron has final policy making authority over the Hospital or that she has been personally involved in overseeing the pandemic response. Instead, they argued only that Plaintiffs cannot succeed because Plaintiffs “raised their Monell arguments for the first time in reply.” May 22, 2020 Hrg. Tr. (Rough at 50– 51). That contention is unavailing for two reasons. First, in their amended complaint, Plaintiffs
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have alleged facts that, if true, plausibly satisfy the Monell standard. See Dkt. 50 at 40–41(Am.

Compl. ¶¶ 202–211) (alleging that Director Bazron has “final policymaking authority” and has

demonstrated her responsibility for conditions at the Hospital). Second, although Defendants

raised the issue in their pending motion to dismiss the original complaint, they have not even

mentioned the issue since then, despite multiple hearings and rounds of briefing since Plaintiffs

amended their complaint. Because Defendants did not invoke Monell as it relates to the

operative complaint and the facts currently at issue until they filed their opposition brief, the

Court is unsympathetic to their objection that Plaintiffs only responded in their reply brief.

Moreover, and more importantly, the Court is persuaded that Plaintiffs have offered sufficient

evidence to show “an ‘affirmative link,’ such that a municipal policy was the ‘moving force’

behind the constitutional violation[s]” at issue here. Baker, 326 F.3d at 1306 (quotations

omitted). The existing record supports the inference that Director Bazron “knew or should have

known of the risk of constitutional violations.” Id.

3.

ADA

The final merits issue to address is Plaintiffs contention that Defendants’ “continued

hospitalization of patients [that are] ready for release” violates the Americans with Disabilities

Act. Dkt. 87-1 at 35. Defendants respond, once more, that Plaintiffs lack standing to assert a

claim of unlawful segregation and the failure to accommodate disability under the ADA. Dkt. 90

at 42–43. Defendants are partially right. To the extent Plaintiffs seek to invoke the rights of

other patients at the Hospital, they lack standing. In other respects, they have standing. But

those claims lack sufficient merit or immediacy to support Plaintiffs’ request for preliminary

injunctive relief.

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First, to the extent Plaintiffs argue that they have standing to press an ADA claim because the failure to discharge patients is relevant to reducing their risk of infection, the Court has already concluded that Defendants efforts to reduce the census are not violative of Plaintiffs’ constitutional rights. Second, to the extent Plaintiffs press this claim on behalf of non-party patients, that fails for lack of standing. Plaintiffs have offered no plausible theory, other than infection reduction, for how they might have standing to press this claim on behalf of others. This leaves only the question whether Defendants have violated the named Plaintiffs’ ADA rights. But, as explained below, even if Plaintiffs’ individual ADA claims were meritorious, which is doubtful on the present record, Plaintiffs have failed to show that they are likely to suffer an irreparable injury if denied preliminary relief. See Jubilant DraxImage Inc. v. United States ITC, 396 F. Supp. 3d 113 (D.D.C. 2019) (noting that an irreparable injury is “the sine qua non for obtaining a preliminary injunction”).
* * * In sum, the Court concludes that Plaintiffs are likely to succeed only with respect to three measures (1) the isolation of exposed patients, (2) PPS testing, and (2) restrictions on cross-unit staffing. B. Irreparable Harm As to irreparable injury, the parties press similar arguments to those they raised with respect to the TRO. Plaintiffs again contend that the deprivation of constitutional rights, even for a minimal period of time, constitutes irreparable injury and also rely on the imminent risk to their physical and mental health. See Dkt. 87-1 at 38–39. Defendants, as before, do not dispute that a constitutional violation or the risk of contracting COVID-19 would suffice to establish irreparable injury and, instead, argue that Plaintiffs cannot show irreparable injury because they
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have failed to show any constitutional violation and because the Hospital is already taking efforts, including efforts Plaintiffs request, to protect the patients’ physical and mental wellbeing. See Dkt. 90 at 46–47. As before, the Court is unpersuaded by Defendants arguments.
To start, the Court has concluded that Plaintiffs have established a likelihood of success of portions of their constitutional claims, and they are correct that a Fifth Amendment violation is itself irreparable. See Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009). With respect to those claims, moreover, Plaintiffs have also shown an imminent risk to their health and well-being, and the consequences of contracting the virus are irreparable. As before, the Court is unpersuaded by Defendants’ contention that there is no imminent risk to Plaintiffs’ health because the Hospital is already implementing or has implemented the measures Plaintiffs seek. As discussed above, Defendants have offered no assurances that they will continue to conduct PPS testing nor can the Court determine whether the Hospital will adequately implement the restrictions on cross-staffing. As amici emphasized, however, these are core measures needed to prevent the further spread and reintroduction of COVID-19. See Dkt. 81-1 at 4 (“It is critically important to understand that in order to stop ongoing transmission of the virus within St. Elizabeths, the circulation of all patients and staff within the hospital must be curtailed.”); id. at 5 (“Voluntary testing is no longer acceptable. All personnel need to adhere to a testing schedule to be developed between St. Elizabeths leadership and DC health authorities in accordance with the recommended stipulations below.”). And, although Defendants may now be isolating all units, amici also explained that, if possible, they must not integrate newly admitted patients with those units as there is “the potential of recent exposure.” Id. at 1 (emphasizing that, as possible, new admits should “be housed as separately from both COVID units (where they
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could be at risk of becoming infected if they are negative) and non-COVID units (where they might transmit virus if they are positive)”).
Defendants are correct, however, that Plaintiffs have not established irreparable injury with respect to their ADA claim. To begin, unlike with their due process claim, Plaintiffs cannot rely on the mere possibility that an ADA violation has occurred (and it is doubtful that one has). More importantly, Plaintiffs have offered little, if any, evidence that were Saint Elizabeths to evaluate their discharge eligibility, they would in-fact be released to a less-restrictive setting at this time or even in the reasonably foreseeable future. If anything, the current record suggests that Plaintiffs are, for the time being, unlikely candidates for release into a less-restrictive setting. As Dr. Gontang explained, the Hospital keeps “a ready-for-discharge list that identifies those patients who meet the clinical standard for discharge,” and “[n]one of the [P]laintiffs . . . is on [that] list at this time.” Dkt. 90-4 at 10–11 (Gontang Supp. Decl. ¶¶ 24–25). Moreover, as counsel for Defendants noted at oral argument (without contradiction by Plaintiffs), many of the plaintiffs have been patients at the Hospital for years and, to the extent Plaintiffs were involuntarily committed following a verdict of not guilty by reason of insanity, they can be released only with the approval of the trial court. See May 22, 2020 Hrg. Tr. (Rough at 46). C. Balance of Hardships and Public Interest
When the government is a party to the suit, the final factors to be considered in granting a preliminary injunction—the balance of the equities and the public interest—“are one and the same, because the government’s interest is the public interest.” Pursuing America’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016) (emphasis in original). The Court finds that the public interest weighs in favor of granting temporary injunctive relief.
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Defendants contend that further injunctive relief weighs against the public interest because the burdens it would impose are significant and because there is a “public interest in permitting the government to carry out its authorized functions where doing otherwise would needlessly upend its operations.” Dkt. 90 at 50 (citing Benisek v. Lamone, 138 S. Ct. 1942, 1945 (2018)). These arguments might carry more weight were the Court ordering the full scope of relief requested by Plaintiffs. But the injunctive relief that the Court will enter is substantially narrower and, for the most part, will require measures that Defendants are already implementing. Moreover, the Court will tailor its order to ensure that it does not interfere with the ability of medical and psychiatric professionals to make decisions on-the-spot about the health and wellbeing of their patients. Most importantly, by mitigating the spread of infection, “Defendants actually lessen the healthcare burden that they will be facing in the weeks and months to come.” Banks, 2020 U.S. Dist. LEXIS 68287, at *48. Finally, of course, it is always in the public interest to vindicate constitutional rights. See Montgomery v. Comey, 300 F. Supp. 3d 158, 175 (D.D.C. 2018)
The Court, accordingly, finds that the balance of the equities and the public interest weigh in favor of granting injunctive relief.
CONCLUSION For the reasons explained above, the Court will GRANT in part and DENY in part Plaintiffs’ motion for a preliminary injunction. A separate order will issue.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge
Date: May 24, 2020
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