U.S. District Court Middle District of Louisiana (Baton Rouge) CIVIL DOCKET FOR CASE #: 3:20-cv-00278-BAJ-SDJ

Belton, Jr. v. East Baton Rouge Parish Prison Assigned to: Judge Brian A. Jackson Referred to: Magistrate Judge Scott D. Johnson Cause: 42:1983 Prisoner Civil Rights

Date Filed: 05/04/2020 Date Terminated: 02/04/2021 Jury Demand: None Nature of Suit: 555 Prisoner Conditions Jurisdiction: Federal Question

Plaintiff
Clifton Belton, Jr. individually and on behalf of all others similarly situated

represented by David J. Utter The Claiborne Firm, P.C. 410 East Bay Street Savannah, GA 31401 (912) 236-9559 Fax: (912) 236-1884 Email: david@claibornefirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Baher A. Azmy Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 11201 (212) 614-6427 PRO HAC VICE

Brittany Thomas Center for Constituional Rights 666 Broadway 7th Floor New York, NY 11201 212-614-6427 PRO HAC VICE

David Bastian Hogan Lovells US LLP 125 High Street Suite 2010 Boston, MA 02110 617-371-1022 PRO HAC VICE

Jessica B. Bigby Hogan Lovells 555 13th Street Washington, DC 20004 202-306-7051 PRO HAC VICE ATTORNEY TO BE NOTICED
Lillian S. Hardy Hogan Lovells US LLP 555 Thirteeth Street NW Washington, DC 20004 (202) 637-5884 PRO HAC VICE
Miriam R. Nemeth Advancement Project National Office 1220 L. Street NW Suite 850 Washington, DC 20005 202-728-9557 Fax: 202-728-9558 Email: mnemeth@advancementproject.org PRO HAC VICE ATTORNEY TO BE NOTICED
Omar A. Farah Center for Constituional Rights 666 Broadway 7th Floor New York, NY 10012 212-614-6485 PRO HAC VICE
Robert L. Toll Hogan Lovells US LLP 390 Madison Avenue New York, NY 10017 212-918-3807 Email: robert.toll@hoganlovells.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Jerry Bradley individually and on behalf of all others similarly situated

Thomas B. Harvey Advancement Project National Office 1220 L. Street NW Suite 850 Washington, DC 20005 (202) 728-9557 PRO HAC VICE
Tiffany Yang Advancement Project National Office 1220 L Street, N.W. Suite 850 Washington, DC 20005 202-728-9557 Email: tyang@advancementproject.org PRO HAC VICE ATTORNEY TO BE NOTICED
William R. Claiborne The Claiborne Firm, P.C. 410 East Bay Street Savannah, GA 31401 912-236-9559 Fax: 912-236-1884 Email: will@claibornefirm.com PRO HAC VICE ATTORNEY TO BE NOTICED
William Patrick Quigley Loyola Law School 7214 St. Charles Ave. Box 902 New Orleans, LA 70118 504-861-5591 Fax: 504-861-5440 Email: quigley@loyno.edu ATTORNEY TO BE NOTICED
represented by David J. Utter (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Baher A. Azmy (See above for address) PRO HAC VICE
Brittany Thomas (See above for address) PRO HAC VICE
David Bastian (See above for address) PRO HAC VICE
Jessica B. Bigby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lillian S. Hardy (See above for address) PRO HAC VICE
Miriam R. Nemeth (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar A. Farah (See above for address) PRO HAC VICE
Robert L. Toll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas B. Harvey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tiffany Yang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Cedric Franklin individually and on behalf of all others similarly situated

William R. Claiborne (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by David J. Utter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Baher A. Azmy (See above for address) PRO HAC VICE
Brittany Thomas (See above for address) PRO HAC VICE
David Bastian (See above for address) PRO HAC VICE
Jessica B. Bigby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lillian S. Hardy (See above for address) PRO HAC VICE
Miriam R. Nemeth (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar A. Farah (See above for address) PRO HAC VICE

Plaintiff
Christopher Rogers individually and on behalf of all others similarly situated

Robert L. Toll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas B. Harvey (See above for address) PRO HAC VICE
Tiffany Yang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William R. Claiborne (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by David J. Utter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Baher A. Azmy (See above for address) PRO HAC VICE
Brittany Thomas (See above for address) PRO HAC VICE
David Bastian (See above for address) PRO HAC VICE
Jessica B. Bigby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Joseph Williams individually and on behalf of all others similarly situated

Lillian S. Hardy (See above for address) PRO HAC VICE
Miriam R. Nemeth (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar A. Farah (See above for address) PRO HAC VICE
Robert L. Toll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas B. Harvey (See above for address) PRO HAC VICE
Tiffany Yang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William R. Claiborne (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by David J. Utter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Baher A. Azmy (See above for address) PRO HAC VICE

Brittany Thomas (See above for address) PRO HAC VICE
David Bastian (See above for address) PRO HAC VICE
Jessica B. Bigby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lillian S. Hardy (See above for address) PRO HAC VICE
Miriam R. Nemeth (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar A. Farah (See above for address) PRO HAC VICE
Robert L. Toll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas B. Harvey (See above for address) PRO HAC VICE
Tiffany Yang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William R. Claiborne (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William Patrick Quigley

Plaintiff
Willie Shepherd individually and on behalf of all others similarly situated

(See above for address) ATTORNEY TO BE NOTICED
represented by David J. Utter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Baher A. Azmy (See above for address) PRO HAC VICE
Brittany Thomas (See above for address) PRO HAC VICE
David Bastian (See above for address) PRO HAC VICE
Jessica B. Bigby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lillian S. Hardy (See above for address) PRO HAC VICE
Miriam R. Nemeth (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar A. Farah (See above for address) PRO HAC VICE
Robert L. Toll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas B. Harvey (See above for address)

Plaintiff
Devonte Stewart individually and on behalf of all others similarly situated

PRO HAC VICE
Tiffany Yang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William R. Claiborne (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by David J. Utter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Baher A. Azmy (See above for address) PRO HAC VICE
Brittany Thomas (See above for address) PRO HAC VICE
David Bastian (See above for address) PRO HAC VICE
Jessica B. Bigby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lillian S. Hardy (See above for address) PRO HAC VICE
Miriam R. Nemeth (See above for address) PRO HAC VICE

Plaintiff
Cedric Spears individually and on behalf of all others similarly situated

ATTORNEY TO BE NOTICED
Omar A. Farah (See above for address) PRO HAC VICE
Robert L. Toll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas B. Harvey (See above for address) PRO HAC VICE
Tiffany Yang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William R. Claiborne (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by David J. Utter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Baher A. Azmy (See above for address) PRO HAC VICE
Brittany Thomas (See above for address) PRO HAC VICE
David Bastian (See above for address) PRO HAC VICE

Plaintiff
Demond Harris individually and on behalf of all others similarly situated

Jessica B. Bigby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lillian S. Hardy (See above for address) PRO HAC VICE
Miriam R. Nemeth (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar A. Farah (See above for address) PRO HAC VICE
Robert L. Toll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas B. Harvey (See above for address)
Tiffany Yang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William R. Claiborne (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by David J. Utter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Baher A. Azmy (See above for address) PRO HAC VICE
Brittany Thomas (See above for address) PRO HAC VICE
David Bastian (See above for address) PRO HAC VICE
Jessica B. Bigby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lillian S. Hardy (See above for address) PRO HAC VICE
Miriam R. Nemeth (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar A. Farah (See above for address) PRO HAC VICE
Robert L. Toll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas B. Harvey (See above for address) PRO HAC VICE
Tiffany Yang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William R. Claiborne

Plaintiff
Forrest Hardy individually and on behalf of all others similarly situated

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by David J. Utter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Baher A. Azmy (See above for address) PRO HAC VICE
Brittany Thomas (See above for address) PRO HAC VICE
David Bastian (See above for address) PRO HAC VICE
Jessica B. Bigby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lillian S. Hardy (See above for address) PRO HAC VICE
Miriam R. Nemeth (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar A. Farah (See above for address) PRO HAC VICE
Robert L. Toll (See above for address)

V. Defendant East Baton Rouge Parish Prison TERMINATED: 05/27/2020
Defendant Sid J. Gautreaux, III in his official capacity as Sheriff of East Baton Rouge

PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas B. Harvey (See above for address) PRO HAC VICE
Tiffany Yang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William R. Claiborne (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by Mary G. Erlingson Erlingson Banks, PLLC 301 Main Street Suite 2110 Baton Rouge, LA 70801 225-218-4446 Fax: 225-246-2876 Email: merlingson@erlingsonbanks.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Catherine S. St. Pierre Erlingson Banks LA 301 Mainstreet, Ste. 2110 Baton Rouge

Defendant Dennis Grimes in his official capacity as Warden of the East Baton Rouge Parish Prison
Defendant City of Baton Rouge/Parish of East Baton Rouge

Baton Rouge, LA 70801 225-218-4446 Fax: 225-246-2876 Email: cstpierre@erlingsonbanks.com ATTORNEY TO BE NOTICED
Rachel Marie Abadie Erlingson Banks, PLLC 301 Main Street Suite 2110 Baton Rouge, LA 70801 225-218-4446 Email: rabadie@erlingsonbanks.com TERMINATED: 08/13/2020 ATTORNEY TO BE NOTICED
represented by Mary G. Erlingson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Catherine S. St. Pierre (See above for address) ATTORNEY TO BE NOTICED
Rachel Marie Abadie (See above for address) TERMINATED: 08/13/2020 ATTORNEY TO BE NOTICED
represented by Anderson O. Dotson , III Dotson Firm, LLC P.O. Box 4123 Baton Rouge, LA 70821 225-346-4044 Fax: 225-346-4025 Email: dotsonfirm@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Courtney King Humphrey Attorney at Law

Movant Voice of the Experienced

315 T.J. Jemison Boulevard Baton Rouge, LA 70802 (225) 448-1888 Fax: (225)372-8586 Email: chumphrey@brgov.com ATTORNEY TO BE NOTICED
Michael Paul Schillage Office of the East Baton Rouge Parish Attorney 222 St. Louis Street 9th Floor Baton Rouge, LA 70802 (225) 389-3114 Fax: (225) 389-8736 Email: mschillage@brla.gov ATTORNEY TO BE NOTICED
Sarah Shannahan Monsour Office of the Parish Attorney P.O. Box 1471 Baton Rouge, LA 70821 225-389-3114 Email: ssmonsour@brla.gov ATTORNEY TO BE NOTICED
represented by Patrick Blair Reagin Holland & Knight LLP Atlanta One Regions Plaza 1180 West Peachtree Street Suite 1800 Atlanta, GA 30309 404-817-8433 Fax: 404-881-0470 Email: patrick.reagin@hklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurie Webb Daniel Holland & Knight LLP 1180 West Peachtreet Street NW Suite 1800 Atlanta, GA 30309 PRO HAC VICE

Movant
East Baton Rouge Parish Prison Reform Coalition

Nicholas R. Boyd Holland & Knight LLP 1180 West Peachtree Street NW Suite 1800 Atlanta, GA 30309 PRO HAC VICE
represented by Patrick Blair Reagin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurie Webb Daniel (See above for address) PRO HAC VICE
Nicholas R. Boyd (See above for address) PRO HAC VICE

Date Filed 05/04/2020 05/04/2020 05/07/2020
05/22/2020
05/22/2020 05/27/2020

# Docket Text
1 COMPLAINT against East Baton Rouge Parish Prison, filed by Clifton Belton, Jr..(KMW) (Entered: 05/06/2020)
***Set CASE REFERRED Flag (PPS) (KMW) (Entered: 05/06/2020)
2 Letter of Deficiency: The Clerk has filed your new suit. However, it is deficient in the areas as stated herein. The deficiency must be corrected within the given time frame. Amended Pleadings, Filing Fee and Statement of Account due by 5/28/2020. (EDC) (Entered: 05/07/2020)
3 Ex Parte MOTION to Enroll David J. Utter as Attorney by Clifton Belton, Jr.. (Attachments: # 1 Proposed Pleading; Proposed Order)(Utter, David) Modified on 5/22/2020 to edit the docket text (SWE). (Entered: 05/22/2020)
MOTION(S) REFERRED: 3 Ex Parte MOTION to Enroll David J. Utter as Attorney . This motion is now pending before the USMJ. (SWE) (Entered: 05/22/2020)
4 AMENDED Class Action Complaint against East Baton Rouge Parish Prison, Sheriff Sid J. Gautreaux III, Lieutenant Colonel Dennis Grimes,

05/27/2020
05/27/2020 05/27/2020 05/27/2020

and City of Baton Rouge/Parish of East Baton Rouge. PETITION for Writ of Habeas Corpus ( Filing fee $ 5 receipt number ALAMDC2118185.), filed by Clifton Belton, Jr.. (Attachments: # 1 Exhibit List, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27)(Utter, David) Modified on 5/27/2020 to edit text (LT). (Entered: 05/27/2020)
5 MOTION for Leave to File Emergency Motion for Temporary Restraining Order in Excess of 25 Pages by Clifton Belton, Jr.. (Attachments: # 1 Proposed Pleading; Proposed Order on Plaintiffs' Motion for Leave to File Emergency Motion for Temporary Restraining Order in Excess of 25 Pages, # 2 Proposed Pleading; Plaintiffs' Emergency Motion for Temporary Restraining Order, # 3 Proposed Pleading; Memorandum in Support of Plaintiffs' Emergency Motion for Temporary Restraining Order, # 4 Proposed Pleading; Proposed Order on Temporary Restraining Order, # 5 Exhibit List, # 6 Exhibit 1, # 7 Exhibit 2, # 8 Exhibit 3, # 9 Exhibit 4, # 10 Exhibit 5, # 11 Exhibit 6, # 12 Exhibit 7, # 13 Exhibit 8, # 14 Exhibit 9, # 15 Exhibit 10)(Utter, David) Modified on 5/27/2020 to edit text (LT). (Entered: 05/27/2020)
6 Motion for Expedited Consideration of Plaintiffs' 5 Emergency Motion for Temporary Restraining Order by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Memorandum in Support Memorandum in Support of Motion for Expedited Consideration of Plaintiffs' Emergency Motion for Temporary Restraining Order, # 2 Proposed Pleading; Proposed Order)(Utter, David) Modified on 5/27/2020 to edit text (LT). (Entered: 05/27/2020)
7 Plaintiffs' Motion for Expedited Discovery by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading; Proposed Order)(Utter, David) Modified on 5/27/2020 to edit text (LT). (Entered: 05/27/2020)
MOTION(S) REFERRED: 7 Plaintiffs' Motion for Expedited Discovery. This motion is now pending before the USMJ. (LT) (Entered: 05/27/2020)

05/27/2020
05/27/2020 05/27/2020 05/27/2020 05/27/2020 05/27/2020

8 MOTION for Class Certification by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Memorandum in Support Plaintiffs' Brief in Support of Motion for Class Certification, # 2 Proposed Pleading; Proposed Order, # 3 Exhibit List, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5)(Utter, David) (Attachment 4 replaced on 5/27/2020 to correct page orientation) (KMW). (Main Document 8 and attachment 8 replaced on 5/28/2020 pursuant to rec doc 18) (LT). Modified on 8/5/2020 to replace documents to correct substitution ordered in #18 (LLH). (Entered: 05/27/2020)
MOTION(S) REFERRED: 8 MOTION for Class Certification. This motion is now pending before the USMJ. (KMW) (Entered: 05/27/2020)
9 MOTION for William R.Claiborne to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC-2118346) by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Pleading; Proposed Order)(Utter, David) (Entered: 05/27/2020)
10 NOTICE OF NON-COMPLIANCE with LR 7(g) as to 8 Motion to Certify Class,,. REQUIRED CORRECTION: A combined Motion for Leave to Exceed the Page Limits and Motion to Substitute the Incorrect Pleading must filed within 24 hours of this notice. Otherwise, the original filing may be stricken by the Court without further notice. (KMW) (Entered: 05/27/2020)
11 MOTION for Lillian S. Hardy to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC-2118360) by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Pleading; Proposed Order)(Utter, David) (Entered: 05/27/2020)
12 MOTION for Thomas B. Harvey to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC-2118365) by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Pleading; Proposed Order)(Utter, David) (Entered: 05/27/2020)

05/27/2020 05/27/2020 05/27/2020
05/27/2020 05/27/2020 05/27/2020

13 MOTION for Miriam R. Nemeth to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC-2118369) by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Pleading; Proposed Order)(Utter, David) (Entered: 05/27/2020)
14 MOTION for Tiffany Yang to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC-2118375) by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Pleading; Proposed Order)(Utter, David) (Entered: 05/27/2020)
15 MOTION for Leave to File Motion for Class Action and Brief in Support in Excess of 25 Pages and Motion to Substitute the Incorrect Pleading (Rec. Doc. 8 ) by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Proposed Pleading; Proposed Order, # 2 Proposed Pleading; Motion for Class Certification, # 3 Proposed Pleading; Plaintiffs' Brief in Support of Motion for Class Certification, # 4 Exhibit List, # 5 Exhibit 1, # 6 Exhibit 2, # 7 Exhibit 3, # 8 Exhibit 4, # 9 Exhibit 5, # 10 Proposed Pleading; Proposed Order)(Utter, David) (Attachment 5 replaced on 5/27/2020 to edit page orientation) (LT). Modified on 5/27/2020 to edit text (LT). (Entered: 05/27/2020)
MOTION(S) REFERRED: 14 MOTION for Tiffany Yang to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC2118375). This motion is now pending before the USMJ. (LT) (Entered: 05/27/2020)
MOTION(S) REFERRED: 15 MOTION for Leave to File Motion for Class Action and Brief in Support in Excess of 25 PagesMotion to Substitute the Incorrect Pleading (Rec. Doc. 8 ). This motion is now pending before the USMJ. (LT) (Entered: 05/27/2020)
MOTION(S) REFERRED: 11 MOTION for Lillian S. Hardy to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC2118360), 13 MOTION for Miriam R. Nemeth to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC2118369), 9 MOTION for William R.Claiborne to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC2118346), 12 MOTION for Thomas B. Harvey to Appear Pro Hac

05/27/2020 05/27/2020 05/28/2020 05/28/2020 05/28/2020 05/28/2020 05/28/2020
05/28/2020

Vice (Filing fee $100.00, Receipt Number ALAMDC-2118365). This motion is now pending before the USMJ. (KMW) (Entered: 05/27/2020)
16 MOTION for Leave to File Four (4) Exhibits Conventionally by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Proposed Pleading; Proposed Order)(Utter, David) Modified on 5/27/2020 to edit the docket text (KMW). (Entered: 05/27/2020)
MOTION(S) REFERRED: 16 MOTION for Leave to File Four (4) Exhibits Conventionally. This motion is now pending before the USMJ. (KMW) (Entered: 05/27/2020)
17 ORDER granting 3 Motion to Enroll as Attorney. Signed by Magistrate Judge Scott D. Johnson on 5/28/2020. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KAH) (Entered: 05/28/2020)
18 ORDER granting 15 Motion for Leave to File Excess Pages; granting 15 MOTION for Class Certification. Signed by Magistrate Judge Scott D. Johnson on 5/28/2020. (LT) (Entered: 05/28/2020)
19 ORDER granting 16 MOTION for Leave to File Four (4) Exhibits Conventionally. Exhibits shall be filed with the Clerk of Court office WITHIN 10 days. Signed by Magistrate Judge Scott D. Johnson on 05/28/2020. (ELW) Modified on 6/2/2020 to edit text (ELW). Modified on 6/3/2020 to correct spelling (ELW). (Entered: 05/28/2020)
20 ORDER granting 5 Motion for Leave to File Motion in Excess of Page Limit. The Clerk of Court shall file Plaintiffs' Emergency Motion for Temporary Restraining Order (Doc. 5-2) and all attachments into the record. Signed by Judge Brian A. Jackson on 5/28/2020. (SWE) (Entered: 05/28/2020)
21 Emergency MOTION for Temporary Restraining Order by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Exhibit List, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10)(SWE) (Entered: 05/28/2020)
22 MOTION for Status Conference by Sid J. Gautreaux, III, Dennis Grimes. (Erlingson, Mary) (Entered: 05/28/2020)

05/28/2020 05/28/2020 05/29/2020 05/29/2020 05/29/2020
05/29/2020 05/29/2020

23 ORDER granting 9 , 11 , 12 , 13 and 14 Motions for William R.Claiborne, Lillian S. Hardy, Thomas B. Harvey, Miriam R. Nemeth and Tiffany Yang to Appear Pro Hac Vice. Signed by Magistrate Judge Scott D. Johnson on 5/28/2020. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KAH) (Entered: 05/28/2020)
95 There is no document #95 . Entered in Error by Case Administrator . (LLH). (Entered: 08/05/2020)
24 WAIVER OF SERVICE Returned Executed by Christopher Rogers, Jerry Bradley, Demond Harris, Forrest Hardy, Joseph Williams, Cedric Franklin, Clifton Belton, Jr., Devonte Stewart, Willie Shepherd, Cedric Spears. Dennis Grimes waiver sent on 5/29/2020, answer due 7/28/2020. (Utter, David) (Entered: 05/29/2020)
25 WAIVER OF SERVICE Returned Executed by Christopher Rogers, Jerry Bradley, Demond Harris, Forrest Hardy, Joseph Williams, Cedric Franklin, Clifton Belton, Jr., Devonte Stewart, Willie Shepherd, Cedric Spears. Sid J. Gautreaux, III waiver sent on 5/29/2020, answer due 7/28/2020. (Utter, David) (Entered: 05/29/2020)
26 MOTION for Baher A. Azmy to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC-2119537) by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Exhibit A- Certificate of Good Standing, # 2 Exhibit B- Sworn Statement, # 3 Proposed Pleading; Proposed Order)(Utter, David) (Entered: 05/29/2020)
MOTION(S) REFERRED: 26 MOTION for Baher A. Azmy to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC2119537). This motion is now pending before the USMJ. (LT) (Entered: 05/29/2020)
27 Notice to Counsel: Telephone Conference set for 6/1/2020 at 01:30 PM before Judge Brian A. Jackson. Call-in information will be emailed to all Counsel of record the morning of the call. Counsel for the Plaintiffs shall notify any Defendant and/or Counsel for Defendant who is not listed as Counsel of record and not receiving e-notice, of this scheduling. Upon receipt of call-in information, Counsel for the Plaintiff shall provide this information to any Defendant and/or Counsel for Defendant not listed in the Courts email.

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Evidence, in electronic format, shall be provided in accordance with Local Rule 79 and Administrative Procedures.
(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(PJH) (Entered: 05/29/2020)
28 MOTION to Substitute 22 Letter Requesting Status Conference by Sid J. Gautreaux, III, Dennis Grimes. (Attachments: # 1 Proposed Pleading;, # 2 Proposed Pleading;, # 3 Proposed Pleading;)(St. Pierre, Catherine) Modified on 6/1/2020 to edit the docket text (KMW). (Entered: 05/29/2020)
31 NOTICE of Conventional Filing in Clerk's Office of CD of Exhibits by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams re 4 Amended Complaint. (EDC) (Entered: 06/02/2020)
29 ORDER granting 26 Motion for Baher A. Azmy to Appear Pro Hac Vice. Signed by Magistrate Judge Scott D. Johnson on 6/1/2020. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KAH) (Entered: 06/01/2020)
30 MOTION for Robert L. Toll to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC-2120445) by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Exhibit A- Certificate of Good Standing, # 2 Exhibit B- Sworn Statement, # 3 Proposed Pleading; Proposed Order)(Utter, David) (Entered: 06/01/2020)
32 Minute Entry for proceedings held before Judge Brian A. Jackson: Telephone Conference held on 6/1/2020. The Court grants the request for status conference filed by Sid J. Gautreaux, III and Dennis Grimes (doc. 22). Emergency Motion for Temporary Restraining Order discussed. Counsel for Defendants shall file Oppositions to the Motion for Temporary Restraining Order by the close of business on 6/5/2020. If desired, Counsel for Plaintiffs may file a Reply to Oppositions no later than 5:00 p.m. on 6/6/2020. Counsel shall address the Valentine and Marlow cases. Oppositions to the Plaintiffs' Motion for Expedited Discovery shall be filed by the close of business on 6/2/2020. Counsel for Plaintiffs may file a Response to the Defendants Opposition to Motion for Discovery no later than 5:00 p.m. on 6/5/2020. The Court will issue an Order scheduling a hearing on the Motion for Temporary Restraining Order, via video conferencing, for early next week.

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Declarations and Affidavits are preferred in lieu of live testimony. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 06/02/2020)
Set/Reset Deadlines as to 21 MOTION for Temporary Restraining Order, 7 Plaintiffs' Motion for Expedited Discovery. (LLH) (Entered: 06/03/2020)
MOTION(S) REFERRED: 30 MOTION for Robert L. Toll to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC2120445). This motion is now pending before the USMJ. (LT) (Entered: 06/02/2020)
33 Notice to Counsel: Hearing on the Emergency Motion for Temporary Restraining Order set for 6/10/2020 at 09:30 AM by Zoomgov video conferencing before Judge Brian A. Jackson. Zoomgov participation information will be emailed to counsel no later than 4:00 p.m. on 6/9/2020.
Evidence, in electronic format, shall be provided in accordance with Local Rule 79 and Administrative Procedures.
(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 06/03/2020)
34 MOTION for Extension of Time to File Plaintiffs' Motion for Extension of Time to File Reply Brief to Defendants' Oppositions to the Motion for Temporary Restraining Order by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Proposed Pleading; Proposed Order)(Utter, David) (Entered: 06/05/2020)
35 MOTION for Leave to File Excess Pages Opposition to TRO by Sid J. Gautreaux, III, Dennis Grimes. (Attachments: # 1 Proposed Pleading; Order, # 2 Proposed Pleading;, # 3 Exhibit 1 to Proposed Pleading, # 4 Exhibit 2 to Proposed Pleading, # 5 Exhibit 3 to Proposed Pleading, # 6 Exhibit 4 to Proposed Pleading, # 7 Exhibit 5 to Proposed Pleading, # 8 Exhibit 5M-Y to Proposed Pleading, # 9 Exhibit 6 to Proposed Pleading, # 10 Exhibit 7 to Proposed Pleading, # 11 Exhibit 8 to Proposed Pleading, # 12 Exhibit 9 to Proposed Pleading, # 13 Exhibit 10 to Proposed Pleading, # 14 Exhibit 11 to Proposed Pleading, # 15 Exhibit 12 to Proposed Pleading, # 16 Exhibit 13 to Proposed Pleading, # 17 Exhibit 14 to Proposed Pleading, # 18 Exhibit 15 to Proposed Pleading, # 19 Exhibit 16 to Proposed Pleading, # 20 Exhibit 17 to Proposed Pleading, # 21 Exhibit 18 to Proposed Pleading,

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# 22 Exhibit 19 to Proposed Pleading, # 23 Exhibit 20 to Proposed Pleading, # 24 Exhibit 21 to Proposed Pleading, # 25 Exhibit 22 to Proposed Pleading, # 26 Exhibit 23 to Proposed Pleading, # 27 Exhibit 24 to Proposed Pleading, # 28 Exhibit 25 to Proposed Pleading, # 29 Exhibit 26 to Proposed Pleading, # 30 Exhibit 27 to Proposed Pleading, # 31 Exhibit 28 to Proposed Pleading, # 32 Exhibit 29 to Proposed Pleading)(St. Pierre, Catherine) (Attachment 5 and 8 replaced on 6/8/2020) (ELW). Modified on 6/8/2020to correct page orientation (ELW). (Entered: 06/05/2020)
36 MOTION for Leave to File Exhibit Conventionally by Sid J. Gautreaux, III, Dennis Grimes. (Attachments: # 1 Proposed Pleading; Order)(St. Pierre, Catherine) (Entered: 06/05/2020)
37 SEALED MOTION for Leave to File Exhibits 9, 16 and 19 to Document 35 Under Seal Under Seal by Sid J. Gautreaux, III, Dennis Grimes. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading; Order, # 3 Sealed Exhibit 9,# STRICKEN FROM THE RECORD (4) Sealed Exhibit 16, # 5 Sealed Exhibit 19)(St. Pierre, Catherine) Modified on 6/9/2020 to substitute exhibits 9, 19 and strike exhibit #16 as per Order # 63 (LLH). (Entered: 06/05/2020)
38 MEMORANDUM in Opposition to 21 MOTION for Temporary Restraining Order, 5 MOTION for Leave to File Emergency Motion for Temporary Restraining Order in Excess of 25 Pages filed by City of Baton Rouge/Parish of East Baton Rouge. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Monsour, Sarah) (Entered: 06/05/2020)
MOTION(S) REFERRED: 36 MOTION for Leave to File Exhibit Conventionally . This motion is now pending before the USMJ. (ELW) (Entered: 06/05/2020)
39 NOTICE of Plaintiffs' Filing Declarations by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams (Attachments: # 1 Exhibit List, # 2 Exhibit 1- Declaration of Willie Vinning, # 3 Exhibit 2- Declaration of Steven Thomason, # 4 Exhibit 3- Declaration of Andre Thomas, # 5 Exhibit 4- Declaration of Joseph Denning, # 6 Exhibit 5- Declaration of Sedrick Tasco, # 7 Exhibit 6- Declaration of Cedric Cage, # 8 Exhibit 7- Declaration of Derick Mancuso, # 9 Exhibit 8-Declaration of Moses Evans Jr., # 10 Exhibit 9- Declaration of Christopher Hodges, # 11 Exhibit 10Declaration of Lyndell Alford, # 12 Exhibit 11- Declaration of Cleveland Stirgus, # 13 Exhibit 12- Declaration of Bruce Ware,

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# 14 Exhibit 13- Declaration of Joshua Weatherspoon)(Utter, David) Modified on 6/8/2020 to edit the text (KMW). (Entered: 06/05/2020)
40 MOTION to Supplement Exhibit by Sid J. Gautreaux, III, Dennis Grimes. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading;, # 3 Affidavit)(St. Pierre, Catherine) Modified on 6/8/2020 to edit text. (EDC). (Attachment 3 replaced on 6/9/2020) (EDC). Modified on 6/9/2020 in accordance with record document 64. (EDC). (Entered: 06/05/2020)
41 ORDER granting 34 Motion for Extension of Time to File Reply Memorandum to the Opposition to Motion for Temporary Restraining Order. IT IS FURTHER ORDERED that Plaintiffs are granted until 12:00 P.M. onMonday, June 8, 2020, to file a Reply Memorandum to Defendants' Opposition tothe Motion for Temporary Restraining Order.Signed by Judge Brian A. Jackson on 6/5/2020. (PJH) (Entered: 06/05/2020)
42 STRICKEN FROM THE RECORD MOTION to Substitute R. Doc. 36 by City of Baton Rouge/Parish of East Baton Rouge. (Attachments: # 1 Attachment Proposed Order, # 2 Proposed Pleading; Motion for Leave to File Opposition in Excess of 25 Pages, # 3 Attachment Proposed Order, # 4 Proposed Pleading; Opposition to TRO, # 5 Exhibit 1, # 6 Exhibit 2, # 7 Exhibit 3, # 8 Exhibit 4, # 9 Exhibit 5, # 10 Exhibit 6, # 11 Exhibit 7)(Monsour, Sarah) (Attachment 8 replaced on 6/8/2020) (EDC). Modified on 6/8/2020 to rotate pages and to edit text. (EDC). Modified on 6/8/2020 in accordance with RD 45 (KMW). (Entered: 06/05/2020)
43 NOTICE OF NON-COMPLIANCE with LR 7(g) as to 38 Memorandum in Opposition to Motion,. REQUIRED CORRECTION: A combined Motion for Leave to Exceed the Page Limits and Motion to Substitute the Incorrect Pleading must filed within 24 hours of this notice. Otherwise, the original filing may be stricken by the Court without further notice. (KMW) (Entered: 06/08/2020)
44 MOTION to Strike an Incorrectly Filed Document by City of Baton Rouge/Parish of East Baton Rouge. (Attachments: # 1 Attachment Proposed Order, # 2 Proposed Pleading; Motion to Substitute R. Doc. 38, # 3 Attachment Proposed Order, # 4 Proposed Pleading; Motion for Leave to File in Excess of 25 Pages, # 5 Attachment Proposed Order, # 6 Proposed Pleading; Opposition to TRO, # 7 Exhibit 1, # 8 Exhibit 2, # 9 Exhibit 3, # 10 Exhibit 4, # 11 Exhibit 5, # 12 Exhibit 6, # 13 Exhibit 7)(Monsour, Sarah) (Entered: 06/08/2020)

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45 ORDER granting 44 Motion to Strike. Signed by Judge Brian A. Jackson on 6/8/2020. (KMW) (Entered: 06/08/2020)
46 ORDER granting 35 Motion for Leave to File Opposition in Excess of Page Limit. Signed by Judge Brian A. Jackson on 6/8/2020. (LT) (Entered: 06/08/2020)
47 MEMORANDUM in Opposition to 21 Plaintiff's Emergency MOTION for Temporary Restraining Order filed by Sid J. Gautreaux, III, Dennis Grimes. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29) Pursuant to record document number 46.(LT) Modified on 6/9/2020 (LT). (Additional attachment(s) added on 6/9/2020: # 30 Exhibit 5M-Y) to edit document (LT). Modified on 6/9/2020 to modify exhibit numbers (LT). (Additional attachment(s) added on 6/9/2020: # 31 Attachment) (EDC). Modified on 6/9/2020 in accordance with record document 62. (EDC). (Entered: 06/08/2020)
48 MOTION for Leave to File Petitioners' Reply to Oppositions to Emergency Motion for Temporary Restraining Order in Excess of 25 pages by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Proposed Pleading; Proposed Order, # 2 Proposed Pleading; Petitioners Response to Defendants TRO)(Utter, David) Modified on 6/8/2020 to edit the docket text (KMW). (Entered: 06/08/2020)
49 Notice of Filing Exhibit 1- Supplemental Declaration of Dr. Fred Rottnek to 48 MOTION for Leave to File Petitioners' Motion for Leave to File Petitioners Reply to Respondents' Oppositions to Emergency Motion for Temporary Restraining Order in Excess of 25 pages by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Exhibit 1Supplemental Declaration of Dr. Fred Rottnek, # 2 Exhibit List, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P)(Utter, David) Modified on 6/8/2020 to edit text. (EDC). (Entered: 06/08/2020)

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Motions No Longer Referred: 36 MOTION for Leave to File Exhibit Conventionally . This motion is now pending before the USDJ. (ELW) (Entered: 06/08/2020)
50 MOTION for Status Conference by Sid J. Gautreaux, III, Dennis Grimes. (Attachments: # 1 Proposed Pleading; Order)(St. Pierre, Catherine) (Entered: 06/08/2020)
51 SEALED MOTION for Leave to File Attachments Under Seal and Strike and Substitute Attachments by Sid J. Gautreaux, III, Dennis Grimes. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading; Order, # 3 Exhibit 9 Pages 8-14, # 4 Exhibit 19 Page 2)(St. Pierre, Catherine) (Entered: 06/08/2020)
52 MOTION to Substitute Record Documents 47 -9, 47 -16, and 47 -19 by Sid J. Gautreaux, III, Dennis Grimes. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading; Order, # 3 Exhibit 9, # 4 Exhibit 16, # 5 Exhibit 19)(St. Pierre, Catherine) (Attachment 5 replaced on 6/9/2020 to edit page orientation) (LT). Modified on 6/9/2020 to edit text (LT). Modified on 6/15/2020 to unterminate motion (LLH). (Entered: 06/08/2020)
53 MOTION to Strike Record Document 40 -3 and Substitute Document by Sid J. Gautreaux, III, Dennis Grimes. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading;, # 3 Corrected Doc. 40-3)(St. Pierre, Catherine) Modified on 6/9/2020 to edit text (LT). (Entered: 06/08/2020)
54 ORDER granting 50 Motion for Status Conference.Telephone Conference set for 6/9/2020 at 11:00 AM before Judge Brian A. Jackson. Call-in information will be emailed to Counsel the morning of the conference. Signed by Judge Brian A. Jackson on 6/8/2020. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 06/08/2020)
55 MOTION for Leave of Court to Supplement City/Parish's Exhibits Attached to its Memorandum in Opposition to Plaintiff's Emergency Motion for Temporary Restraining Order by City of Baton Rouge/Parish of East Baton Rouge. (Attachments: # 1 Exhibit 8)(Schillage, Michael) Modified on 6/9/2020 to edit text. (EDC). (Entered: 06/09/2020)
56 Minute Entry for proceedings held before Judge Brian A. Jackson: Telephone Conference held on 6/9/2020. Counsel informs that Court that Dr. Rottnek, Warden Grimes, Phyllis McNeel, and one of the named Plaintiffs will testify at the Evidentiary Hearing scheduled for 6/10/2020. By mid-afternoon today, Counsel for the Plaintiffs shall

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inform opposing counsel of the name of the Plaintiff who will testify at the hearing. Counsel for Sheriff Gautreaux and Warden Grimes shall make necessary arrangements regarding video conferencing for this witness. Video conferencing information via Zoomgov will be emailed to counsel no later than 5:00 p.m. on 6/9/2020. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 06/09/2020)
57 MOTION for Omar Ahmed Farah to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC-2124554) by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Proposed Pleading; Proposed Order, # 2 Exhibit A- Certificate of Good Standing, # 3 Exhibit BSworn Statement)(Utter, David) (Entered: 06/09/2020)
58 MOTION for Brittany M. Thomas to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC-2124567) by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Proposed Pleading; Proposed Order, # 2 Exhibit A-Certificate of Good Standing, # 3 Exhibit BSworn Statement)(Utter, David) (Entered: 06/09/2020)
MOTION(S) REFERRED: 57 MOTION for Omar Ahmed Farah to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC2124554), 58 MOTION for Brittany M. Thomas to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC-2124567). This motion is now pending before the USMJ. (LT) (Entered: 06/09/2020)
59 MOTION for David Bastian to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC-2124600) by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Proposed Pleading; Proposed Order, # 2 Exhibit A, # 3 Exhibit B)(Utter, David) (Attachment 2 replaced on 6/9/2020) (ELW). Modified on 6/9/2020 to correct page orientation (ELW). (Entered: 06/09/2020)
MOTION(S) REFERRED: 59 MOTION for David Bastian to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC2124600). This motion is now pending before the USMJ. (ELW) (Entered: 06/09/2020)
60 NOTICE of Appearance of Patrick B. Reagin by Voice of the Experienced, East Baton Rouge Parish Prison Reform Coalition (Reagin, Patrick) (Entered: 06/09/2020)

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61 ORDER granting 36 MOTION for Leave to File Exhibit Conventionally. Defendants shall submit the video exhibit referenced in their Motion in physical form for entry into the Court's record. Signed by Judge Brian A. Jackson on 6/9/2020. (EDC) (Entered: 06/09/2020)
62 ORDER granting 40 Motion to Amend. The Clerk of Court shall file the Declaration (Doc. 40-3) into the record as a supplement to Exhibit 7 in Defendants' Opposition to a Temporary Restraining Order. Signed by Judge Brian A. Jackson on 6/9/2020. (EDC) Modified on 6/15/2020 to edit text. (EDC). (Entered: 06/09/2020)
63 ORDER granting 37 SEALED Motion for Leave to File to File Exhibits 9, 16 and 19 to Document 35 Under Seal and 51 SEALED MOTION for Leave to File Attachments Under Seal and Strike and Substitute Attachments . Signed by Judge Brian A. Jackson on 6/9/2020. (LLH) Modified on 6/9/2020 to edit text(LLH). (Entered: 06/09/2020)
64 ORDER granting 53 Motion to Strike and Substitute. The Clerk of Court shall strike and substitute the existing Doc. 40-3 with the attached redacted Declaration (Doc. 53-3). GRANTED Defendants' Motion to Supplement Exhibit (Doc. 40). The Clerk of Court shall file the newly substituted and properly redacted Declaration (Doc. 40-3) into the record as a supplement to Exhibit 7 in Defendants' Opposition to a Temporary Restraining Order. Signed by Judge Brian A. Jackson on 6/9/2020. (EDC) (Entered: 06/09/2020)
65 SEALED DOCUMENT SEALED EXHIBIT 9 and Exhibit 19 to 47 Memo in Opposition filed by filed by Sid J. Gautreaux, III, Dennis Grimes. (Attachments: # 1 Exhibit 19)(LLH) (Entered: 06/09/2020)
66 ORDER granting 48 MOTION for Leave to File Petitioners' Reply to Oppositions to Emergency Motion for Temporary Restraining Order in Excess of 25 pages. Signed by Judge Brian A. Jackson on 6/9/2020. (EDC) (Entered: 06/09/2020)
67 REPLY to Oppositions to 21 MOTION for Temporary Restraining Order, filed by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Exhibit, # 2 exhibit list, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit)(EDC) (Entered: 06/09/2020)
68 MOTION to Amend Document 47 by adding Supplemental Exhibit 5K, adding Exhibit 5-Z, and adding Exhibit 30 by Sid J. Gautreaux, III,

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Dennis Grimes. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading; Order, # 3 Supplemental Exhibit 5-K, # 4 Exhibit 5-Z, # 5 Exhibit 30)(St. Pierre, Catherine) (Entered: 06/09/2020)
69 MOTION for Laurie Webb Daniel to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC-2124901) by East Baton Rouge Parish Prison Reform Coalition, Voice of the Experienced. (Attachments: # 1 Exhibit, # 2 Affidavit, # 3 Proposed Pleading;)(Reagin, Patrick) (Entered: 06/09/2020)
70 MOTION for Nicholas R. Boyd to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC-2124905) by East Baton Rouge Parish Prison Reform Coalition, Voice of the Experienced. (Attachments: # 1 Exhibit Ex. 1 - Certificate of Good Standing, # 2 Affidavit Ex. 2 - Declaration of Nicholas R. Boyd, # 3 Proposed Pleading; Ex. 3 - Proposed Order)(Reagin, Patrick) (Entered: 06/09/2020)
71 Brief regarding 21 MOTION for Temporary Restraining Order by Amici Curiae filed by East Baton Rouge Parish Prison Reform Coalition, Voice of the Experienced. (Reagin, Patrick) (Entered: 06/09/2020)
MOTION(S) REFERRED: 70 MOTION for Nicholas R. Boyd to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC2124905), 69 MOTION for Laurie Webb Daniel to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number ALAMDC-2124901). This motion is now pending before the USMJ. (ELW) (Entered: 06/10/2020)
72 ORDER granting 30 , 57 , 58 , 59 , 69 and 70 Motions for Robert L. Toll, Omar Ahmed Farah, Brittany M. Thomas, David Bastian, Laurie Webb Daniel and Nicholas R. Boyd to Appear Pro Hac Vice. Signed by Magistrate Judge Scott D. Johnson on 6/10/2020. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KAH) (Entered: 06/10/2020)
77 Minute Entry for proceedings held before Judge Brian A. Jackson: Evidentiary Hearing on Motion for Temporary Restraining Order held on 6/10/2020. Counsel presents opening statements to the Court. Clifton Belton, Jr. and Dr. Fred Rottnek are sworn and testify on behalf of the Plaintiffs. Order of Sequestration imposed. Warden Dennis Grimes and Phyllis McNeel are sworn and testify on behalf of the Defendants, Warden Dennis Grimes, having been previously sworn, is recalled and questioned by the Court. Counsel presents closing arguments to the Court. As instructed by the Court, post hearing briefs, limited to 10 pages in length, shall be filed by the close of business on

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6/16/2020.(Court Reporter N. Breaux.) (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 06/15/2020)
73 TRANSCRIPT REQUEST for Full Hearing via Zoom by Sid J. Gautreaux, III, Dennis Grimes for proceedings held on 06/10/2020 before Judge Hon. Brian A. Jackson.. (St. Pierre, Catherine) (Entered: 06/11/2020)
74 TRANSCRIPT REQUEST for Full Hearing Via Zoom by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart for proceedings held on June 10, 2020 before Judge Brian A. Jackson.. (Utter, David) (Entered: 06/11/2020)
75 TRANSCRIPT REQUEST by City of Baton Rouge/Parish of East Baton Rouge for proceedings held on 6/10/2020 before Judge Brian A. Jackson.. (Schillage, Michael) (Entered: 06/11/2020)
76 NOTICE of Conventional Filing in Clerk's Office of CD of Video by Sid J. Gautreaux, III, Dennis Grimes re 47 Memorandum in Opposition to Motion for Temporary Restraining Order.(EDC) (Entered: 06/12/2020)
78 Ex Parte MOTION to Strike an Incorrectly Filed Document 60 NOTICE of Appearance of Patrick B. Reagin, 71 Brief regarding 21 MOTION for Temporary Restraining Order by Amici Curiae by East Baton Rouge Parish Prison Reform Coalition, Voice of the Experienced. (Attachments: # 1 Attachment Ex. A - Proposed Order)(Reagin, Patrick) Modified on 6/16/2020 to edit the docket text (KMW). (Entered: 06/15/2020)
79 Ex Parte MOTION for Leave to File Amicus Curiae Brief in Support of Plaintiffs' 21 Emergency Motion for Temporary Restraining Order by East Baton Rouge Parish Prison Reform Coalition, Voice of the Experienced. (Attachments: # 1 Attachment Ex. A - Proposed Order, # 2 Proposed Pleading; Ex. B - Proposed Filing)(Reagin, Patrick) Modified on 6/16/2020 to link documents (SWE). (Entered: 06/15/2020)
80 MOTION for Leave to File Supplemental Exhibit to Document 47 by Sid J. Gautreaux, III, Dennis Grimes. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading; Order, # 3 Exhibit to Document 47)(St. Pierre, Catherine) (Entered: 06/16/2020)
81 Brief regarding Petitioners' Post-Hearing Brief filed by All Plaintiffs. (Attachments: # 1 Exhibit List, # 2 Exhibit A-Declaration of Michael

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A. Mitchell, # 3 Exhibit B-St. of La. Dept of Pub. Safety and Corrections, No. HC-06, Medical Releases (2010))(Utter, David) (Entered: 06/16/2020)
82 Brief regarding City/Parish's Post-Hearing Brief. (Schillage, Michael) (Entered: 06/16/2020)
83 Brief regarding Sheriff Defendants' Post-Hearing Brief. (Attachments: # 1 Exhibit A- Court Orders)(St. Pierre, Catherine) (Entered: 06/16/2020)
84 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings Evidentiary hearing before Judge Brian A. Jackson held on 6-10-2020. Court Reporter: Natalie W. Breaux, RPR, CRR. Phone Number: 225389-3565.
NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.lamd.uscourts.gov.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 7/9/2020. Redacted Transcript Deadline set for 7/20/2020. Release of Transcript Restriction set for 9/16/2020. (Breaux, Natalie) Modified on 6/19/2020 to edit date (LLH). (Entered: 06/18/2020)
Motions No Longer Referred: 8 MOTION for Class Certification. This motion is now pending before the USDJ. (LLH) (Entered: 06/19/2020)
85 ORDER granting 7 Motion for Discovery. Before the Court is Plaintiffs' Motion for Expedited Discovery (R. Doc. 7). Defendants response, if any, was due by June 2, 2020. As of this Order, Defendants have not filed any opposition in response to the Motion. Therefore, to the extent any of the requested discovery has not been completed (Rottnek Supplemental Decl., R. Doc. 67-1 at 2) (requested inspection occurred on June 5, 2020), IT IS ORDERED that Plaintiffs Motion for Expedited Discovery is GRANTED. The parties are directed to confer and file a proposed schedule for completing the remaining limited discovery within 7 days of this Order. Signed by Magistrate Judge Scott D. Johnson on 6/19/2020. (This is a TEXT ENTRY ONLY. There is no

06/22/2020 06/23/2020 06/24/2020 06/26/2020 07/03/2020 07/06/2020 07/28/2020 07/30/2020
07/30/2020

hyperlink or PDF document associated with this entry.) (Johnson, Scott) (Entered: 06/19/2020)
86 MOTION to Set Aside Magistrate Judges's 85 Order on Motion for Discovery by Sid J. Gautreaux, III, Dennis Grimes. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading; Order)(St. Pierre, Catherine) (Entered: 06/22/2020)
87 RESPONSE to 86 MOTION to Set Aside 85 Order on Motion for Discovery,,, Plaintiffs' Response to Defendants' Motion to Set Aside Order filed by All Plaintiffs. (Utter, David) (Entered: 06/23/2020)
88 REPLY MEMORANDUM in Support of 86 MOTION to Set Aside 85 Order on Motion for Discovery filed by Sid J. Gautreaux, III, Dennis Grimes. (St. Pierre, Catherine) Modified on 6/24/2020 to edit text (ELW). (Entered: 06/24/2020)
89 ORDER granting 86 Motion to Set Aside Magistrate Judge's Order. The deadlines contemplated in the order are CONTINUED until further notice. Signed by Judge Brian A. Jackson on 6/25/2020. (KMW) (Entered: 06/26/2020)
90 RULING AND ORDER...Plaintiffs Emergency Motion for Temporary Restraining Order (Doc. 21) is DENIED. Signed by Judge Brian A. Jackson on 7/3/2020. (PJH) (Entered: 07/03/2020)
91 Joint STATUS REPORT by All Plaintiffs. (Attachments: # 1 Attachment Appendix A)(Utter, David) Modified on 7/7/2020 to edit the docket text (SWE). (Entered: 07/06/2020)
92 MOTION to Dismiss for Failure to State a Claim by Sid J. Gautreaux, III, Dennis Grimes. (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Proposed Pleading;)(St. Pierre, Catherine) (Entered: 07/28/2020)
93 MOTION for Jessica B. Bigby to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number BLAMDC-2149113) by All Plaintiffs. (Attachments: # 1 Exhibit A- Certificate of Good Standing, # 2 Exhibit B-Sworn Statement, # 3 Proposed Pleading; Proposed Order)(Utter, David) (Entered: 07/30/2020)
MOTION(S) REFERRED: 93 MOTION for Jessica B. Bigby to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number BLAMDC2149113). This motion is now pending before the USMJ. (ELW) (Entered: 07/30/2020)

08/03/2020 08/12/2020 08/12/2020 08/13/2020 08/18/2020
08/18/2020

94 ORDER granting 93 Motion for Jessica B. Bigby to Appear Pro Hac Vice. Signed by Magistrate Judge Scott D. Johnson on 8/3/2020. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KAH) (Entered: 08/03/2020)
96 MOTION to Withdraw as Counsel of Record by Sid J. Gautreaux, III, Dennis Grimes. (Attachments: # 1 Proposed Pleading;)(St. Pierre, Catherine) (Entered: 08/12/2020)
MOTION(S) REFERRED: 96 MOTION to Withdraw as Counsel of Record. This motion is now pending before the USMJ. (ELW) (Entered: 08/12/2020)
97 ORDER granting 96 Motion to Withdraw Rachel M. Abadie as Counsel of Record. Signed by Magistrate Judge Scott D. Johnson on 8/13/2020. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KAH) (Entered: 08/13/2020)
98 MOTION for Leave to file in excess of 25 pages Plaintiffs' Response in Opposition to Sheriff Sid J. Gautreaux, III and Lt. Colonel Dennis Grimes's Motion to Dismiss by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Proposed Pleading; Proposed Order, # 2 Exhibit List, # 3 Exhibit 1- Declaration of Dr. Susan Hassig, # 4 Exhibit 2Declaration of Travis Day, # 5 Exhibit 3- Declaration of Ransom J. Parker, # 6 Exhibit 4- Declaration of Demaris Carter, # 7 Exhibit 5Supplemental Declaration of Devonte Stewart, # 8 Exhibit 6Supplemental Declaration of Derick Mancuso, # 9 Exhibit 7Declaration of Casey Wade Harris, # 10 Exhibit 8-Declaration of Alvin Banks, # 11 Exhibit 9-Declaration of Jocquenee Bernard, # 12 Exhibit 10-Declaration of John Leagard, # 13 Exhibit 11- Declaration of Billy Pettice, # 14 Exhibit 12- Declaration of Fred Rottnek, # 15 Exhibit 13Declaration of Calvin Kemp, # 16 Exhibit 14- Declaration of Jimmie Knoten)(Utter, David) (Attachment 11 replaced on 8/19/2020) (EDC). Modified on 8/19/2020 to rotate pages. (EDC). (Entered: 08/18/2020)
99 Response in Opposition to Sheriff Sid J. Gautreaux, III and Lt. Colonel Dennis Grimes's Motion to Dismiss by All Plaintiffs. (Utter, David) Modified on 8/19/2020 to edit text. (EDC). (Additional attachment(s) added on 8/21/2020 in accordance with RD 100 : # 1 Exhibit List, # 2 Exhibit 1 - Declaration of Dr. Susan Hassig, # 3 Exhibit 2Declaration of Travis Day, # 4 Exhibit 3- Declaration of Ransom J. Parker, # 5 Exhibit 4- Declaration of Demaris Carter, # 6 Exhibit 5Supplemental Declaration of Devonte Stewart, # 7 Exhibit 5Supplemental Declaration of Derick Mancuso, # 8 Exhibit 7-

Declaration of Casey Wade Harris, # 9 Exhibit 8- Declaration of Alvin Banks, # 10 Exhibit 9- Declaration of Jocquenee Bernard, # 11 Exhibit 10- Declaration of John Leagard, # 12 Exhibit 11- Declaration of Billy Pettice, # 13 Exhibit 12- Declaration of Fred Rottnek, # 14 Exhibit 13Declaration of Calvin Kemp, # 15 Exhibit 14- Declaration of Jimmie Knoten) (SWE). (Entered: 08/18/2020)

08/20/2020

100 ORDER granting 98 MOTION for Leave to File in Excess of 25 Pages Plaintiffs' Response in Opposition to Sheriff Sid J. Gautreaux, III's and Lt. Colonel Dennis Grimes's Motion to Dismiss. Signed by Judge Brian A. Jackson on 8/20/2020. (SWE) (Entered: 08/20/2020)

08/31/2020

101 MOTION for Leave to File Reply Memorandum in Excess of Page Limit by Sid J. Gautreaux, III, Dennis Grimes. (Attachments: # 1 Memorandum in Support Reply Memo, # 2 Exhibit, # 3 Proposed Pleading;)(St. Pierre, Catherine) Modified on 9/1/2020 to edit text. (EDC). (Entered: 08/31/2020)

09/01/2020

102 ORDER granting 101 MOTION for Leave to File Reply Memorandum in Excess of Page Limit filed by Dennis Grimes, Sid J. Gautreaux, III. Signed by Judge Brian A. Jackson on 9/1/2020. (SWE) (Entered: 09/01/2020)

09/01/2020 103 REPLY MEMORANDUM in Support of 92 MOTION to Dismiss for Failure to State a Claim filed by Sid J. Gautreaux, III, Dennis Grimes. (Attachments: # 1 Exhibit 1)(SWE) (Entered: 09/01/2020)

10/23/2020

104 MOTION to Dismiss for Failure to State a Claim and for Lack of Subject Matter Jurisdiction by City of Baton Rouge/Parish of East Baton Rouge. (Attachments: # 1 Order, # 2 Memorandum in Support)(Schillage, Michael) (Entered: 10/23/2020)

11/03/2020 105 Unopposed MOTION for Extension of Deadline by All Plaintiffs. (Attachments: # 1 Proposed Pleading; Proposed Order)(Utter, David) Modified on 11/3/2020 to edit text. (EDC). (Entered: 11/03/2020)

11/04/2020

106 ORDER granting 105 Motion for Extension of Time to File Response to 104 MOTION to Dismiss for Failure to State a Claim and for Lack of Subject Matter Jurisdiction. Response due 11/23/2020.. Signed by Judge Brian A. Jackson on 11/4/2020. (KMW) (Entered: 11/04/2020)

11/23/2020

107 MOTION for Leave to file in Excess of 25 Pages Plaintiffs' Response in Opposition to 104 Motion to Dismiss by All Plaintiffs. (Attachments: # 1 Proposed Pleading; Proposed Order, # 2 Proposed Pleading; Plaintiff's Response in Opposition to City of Baton Rouge/Parish of East Baton Rouge's Motion to Dismiss, # 3 Exhibit List Exhibit List, # 4 Exhibit 1 - Declaration of Kenny Durousseau, # 5 Exhibit 2 -

Declaration of Eddie Jones, # 6 Exhibit 3 - Declaration of Nicholas Kalivoda, # 7 Exhibit 4 - Declaration of Steven Ortiz Morales, # 8 Exhibit 5 - Supplemental Declaration of Jerry Bradley, # 9 Exhibit 6 - Declaration of Frederic Graham, # 10 Exhibit 7 - Declaration of Jean Walston, # 11 Exhibit 8 - Supplemental Declaration of Christopher Rogers, # 12 Exhibit 9 - Declaration of Elio Erazo, # 13 Exhibit 10 Email from Darryl Grissel)(Utter, David) Modified on 11/23/2020 to edit the docket text (KMW). (Entered: 11/23/2020)

12/04/2020 108 REPLY Memorandum in Support of 104 MOTION to Dismiss filed by City of Baton Rouge/Parish of East Baton Rouge. (Schillage, Michael) Modified on 12/7/2020 to edit text. (EDC). (Entered: 12/04/2020)

12/11/2020

109 ORDER granting 107 MOTION for Leave to To File In Excess Of 25 Pages Plaintiffs' Response In Opposition To City Of Baton Rouge/Parish Of East Baton Rouge's Motion To Dismiss. Signed by Judge Brian A. Jackson on 12/10/2020. (EDC) (Entered: 12/11/2020)

12/11/2020

110 RESPONSE in Opposition to 104 MOTION to Dismiss for Failure to State a Claim and for Lack of Subject Matter Jurisdiction filed by Clifton Belton, Jr., Jerry Bradley, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart, Joseph Williams. (Attachments: # 1 Exhibit List, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(EDC) (Entered: 12/11/2020)

12/22/2020

111 Supplemental Letter dated 12/22/2020 to Judge Brian Jackson by Clifton Belton, Jr., Jerry Bradley, East Baton Rouge Parish Prison Reform Coalition, Cedric Franklin, Forrest Hardy, Demond Harris, Christopher Rogers, Willie Shepherd, Cedric Spears, Devonte Stewart (Utter, David) Modified on 12/22/2020 to edit docket text (SWE). (Entered: 12/22/2020)

01/08/2021 112 NOTICE of Supplemental Letter dated 01/08/2021 to Judge Brian Jackson by Sid J. Gautreaux, III, Dennis Grimes (St. Pierre, Catherine) Modified on 1/8/2021 to edit text.(EDC). (Entered: 01/08/2021)

01/12/2021

113 ORDER: In light of the Courts July 3 Order, multiple motions appearing in the docket have been rendered moot. Record Documents 6 , 22 , 28 , 52 , 55 , 68 , 79 , and 80 are DENIED AS MOOT. Signed by Judge Brian A. Jackson on 1/12/2021. (KMW) (Entered: 01/12/2021)

01/12/2021

114 ORDER denying as MOOT 78 Ex Parte Motion To Strike Docket Entries 61 And 70. Signed by Judge Brian A. Jackson on 1/12/2021. (KMW) (Entered: 01/12/2021)

02/04/2021

115 RULING AND ORDER granting Defendants Motions to Dismiss (Docs. 92 , 104 ). The above-captioned action is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Plaintiffs 8 Motion For Class Certification is TERMINATED. Signed by Judge Brian A. Jackson on 2/4/2021. (KMW) (Entered: 02/04/2021)

02/04/2021 116 FINAL JUDGMENT: The above-captioned action is DISMISSED WITH PREJUDICE.Signed by Judge Brian A. Jackson on 2/4/2021. (KMW) (Entered: 02/04/2021)

02/04/2021

117 GENERAL ORDER: All pleadings and other papers filed under seal in civil and criminal actions shall be maintained under seal for thirty days following final disposition of the action. After that time, all sealed pleadings and other papers shall be placed in the case record unless a District Judge or Magistrate Judge, upon motion and for good cause shown, orders that the pleading or other paper be maintained under seal.

The deadline for filing any motions regarding the unsealing of any document shall be within thirty days of the final disposition of any action and shall contain a concise statement of reasons for maintaining the pleading or other paper under seal.

ATTENTION: If a motion to retain documents under seal is NOT filed, all documents shall be placed in the public case record, unless specifically identified in the attached General Order

Signed by Chief Judge Shelly D. Dick on 7/8/2019. (KMW) (Entered: 02/04/2021)

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02/18/2021 23:10:31

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mcevoy 3:20-cv-00278-BAJSDJ 3.00
Not Exempt

 
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 Case 3:20-cv-00278-BAJ-SDJ Document 21 05/28/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

CLIFTON BELTON, JR., JERRY BRADLEY, CEDRIC FRANKLIN, CHRISTOPHER ROGERS, JOSEPH WILLIAMS, WILLIE SHEPHERD, DEVONTE STEWART, CEDRIC SPEARS, DEMOND HARRIS, and FORREST HARDY, individually and on behalf of all others similarly situated,

Plaintiffs,

Case No. 3:20-cv-000278-BAJ-SDJ

v.

SHERIFF SID GAUTREAUX, in his official capacity as Sheriff of East Baton Rouge; LT. COL. DENNIS GRIMES, in his official capacity as Warden of the East Baton Rouge Parish Prison; CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE,

Defendants.

PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Plaintiffs hereby move this Court, pursuant to Federal Rule of Civil Procedure 65, for a temporary restraining order and order of release pursuant to 28 U.S.C. § 2241. The grounds for this motion are set forth in the Memorandum in Support of Plaintiffs’ Emergency Motion for Temporary Restraining Order, filed herewith, and the accompanying Declarations and Exhibits in support.
Because of the imminent and grave risk of serious illness and death from continued confinement at the East Baton Rouge Parish Prison (“EBRPP” or the “Jail”), Plaintiffs request that this Court consider this motion on an emergency basis and that the Court grant a temporary restraining order requiring the release of members of the Medically Vulnerable Subclass pending

1

Case 3:20-cv-00278-BAJ-SDJ Document 21 05/28/20 Page 2 of 3

briefing and argument, pursuant to 28 U.S.C. § 2241 and/or Rule 65 of the Federal Rules of Civil Procedure.
Because this motion is being filed contemporaneously with the complaint, there is not yet an attorney of record for Defendants in this case. Pursuant to Local Civil Rule 65, Plaintiffs’ counsel certifies that he has emailed copies of this motion, the Amended Complaint, and all other filings in this case to counsel for Defendants against whom the undersigned has litigated matters regarding the jail before, to wit: Cathy St. Pierre, Esq., one of the lawyers for Defendants Sheriff Gautreaux and Warden Grimes, and Michael Schillage, Esq., one of the lawyers for the City of Baton Rouge/East Baton Rouge Parish;
Plaintiffs’ counsel is prepared to appear by telephone immediately. Each day that passes risks Plaintiffs’ lives. This case cannot wait.
Respectfully submitted, this 27th day of May, 2020.

/s/ David J. Utter David J. Utter (LA Bar No. 23236) William R. Claiborne (GA Bar No. 126363)* FAIR FIGHT INITIATIVE 410 East Bay Street Savannah, Georgia 31401 (912) 236-9559 Telephone (912) 236-1884 Facsimile david@fairfightinitative.org will@fairfightinitative.org Attorneys for Plaintiffs
*Pro Hac Vice motion pending

/s/Miriam R. Nemeth______________ Thomas B. Harvey (MBE #61734MO)* Miriam R. Nemeth (DC Bar No. 1028529)** Tiffany Yang (DC Bar No. 230836)* ADVANCEMENT PROJECT NATIONAL OFFICE 1220 L Street NW, Suite 850 Washington, DC 20005 (202) 728-9557 Telephone tharvey@advancementproject.org mnemeth@advancementproject.org tyang@advancementproject.org Attorneys for Plaintiffs

*Pro Hac Vice motions pending ** Lead Attorney for Plaintiffs

/s/ Lillian S. Hardy______________ Lillian S. Hardy (DC Bar No. 991282)* Hogan Lovells US LLP 555 Thirteenth Street NW Washington, DC 20004

/s/ William P. Quigley William P. Quigley (LA Bar No. 00769) Loyola University New Orleans 7214 St. Charles Avenue Campus Box 902
2

Case 3:20-cv-00278-BAJ-SDJ Document 21 05/28/20 Page 3 of 3

(202) 637-5884 Telephone lillian.hardy@hoganlovells.com Attorneys for Plaintiffs

New Orleans, LA 70117 Attorney for Plaintiffs

*Pro Hac Vice motion pending

/s/ Baher Azmy Baher Azmy (NY Bar No. 2860740)* Omar Farah (NY Bar No. 4641247)* Brittany Thomas (NY Bar No. 5683834)* CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 11201 (212) 614-6427 Telephone bazmy@ccrjustice.org ofarah@ccrjustice.org bthomas@ccrjustice.org Attorneys for Plaintiffs

*Pro Hac Vice motions forthcoming

CERTIFICATE OF SERVICE

I hereby certify that on May 27, 2020 at approximately at 11:00 a.m. (EST) a copy of the foregoing was sent to all parties via electronic mail upon the following:

Michael P. Schillage Assistant Parish Attorney Office of the East Baton Rouge Parish Attorney 222 St. Louis Street, Suite 902 Baton Rouge, LA 70803
MSchillage@brla.gov

Catherine St. Pierre Erlingson Banks, PLLC
One American Place 301 Main Street Suite 2110
Baton Rouge, LA 70801 cstpierre@erlingsonbanks.com

/s/ David J. Utter David J. Utter

3

Case 3:20-cv-00278-BAJ-SDJ Document 21-1 05/28/20 Page 1 of 55

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

CLIFTON BELTON, JR., JERRY BRADLEY, CEDRIC FRANKLIN, CHRISTOPHER ROGERS, JOSEPH WILLIAMS, WILLIE SHEPHERD, DEVONTE STEWART, CEDRIC SPEARS, DEMOND HARRIS, and FORREST HARDY, individually and on behalf of all others similarly situated,

Plaintiffs,

Case No. 3:20-cv-000278-BAJ-SDJ

v.

SHERIFF SID GAUTREAUX, in his official capacity as Sheriff of East Baton Rouge; LT. COL. DENNIS GRIMES, in his official capacity as Warden of the East Baton Rouge Parish Prison; CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE,

Defendants.

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Case 3:20-cv-00278-BAJ-SDJ Document 21-1 05/28/20 Page 2 of 55
TABLE OF CONTENTS Page
TABLE OF AUTHORITIES ......................................................................................................... iv INTRODUCTION .......................................................................................................................... 1 BACKGROUND AND FACTS ..................................................................................................... 2
I. The COVID-19 Crisis is a Health Crisis Unmatched in Living Memory............... 2 II. A COVID-19 Jail Outbreak is an Extreme Threat to Public Health....................... 4 III. Defendants Are Not Able to–and at Present–Cannot Take Necessary Steps to
Prevent A Widespread Outbreak in the Jail ............................................................ 6 A. Social Distancing is Impossible at the Jail and Sanitation and Hygiene is
Dangerously Insufficient............................................................................. 7 B. Defendants’ testing and identification of COVID-19 has been
inadequate ................................................................................................... 8 C. Defendants maintain dangerous conditions at the Jail ................................ 9 D. Defendants’ use of “lockdown” to treat detainees with COVID-19......... 11 E. Defendants in lockdown lack access to basic medical services................ 12 F. Defendants do not provide basic personal hygiene supplies or sufficient
personal protective equipment to detainees in response to COVID-19 .... 15 G. Defendants fail to provide adequate and timely medical care. ................. 16
1. Defendants’ medical procedures are inadequate and have been for years. ............................................................................................. 16
2. Defendants ignore and retaliate against detainees for filing grievances concerning the lack of medical care or unsanitary conditions of confinement............................................................. 18
H. Defendants’ failure to control the COVID-19 outbreak and use of punitive solitary confinement threatens the mental health and safety of all detainees.................................................................................................... 19
I. Defendants fail to provide information about COVID-19 and its spread ....................................................................................................... 20
ii

Case 3:20-cv-00278-BAJ-SDJ Document 21-1 05/28/20 Page 3 of 55
J. Expert Medical Opinion Demonstrates that Release from Detention is the Only Remedial Measure that Will Protect Medically Vulnerable Detainees ................................................................................................... 21
ARGUMENT ................................................................................................................................ 23 I. SUBCLASS MEMBERS WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF A TRO MANDATING THEIR RELEASE ................................ 25 II. SUBCLASS MEMBERS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIMS................................................................................................... 27 A. Subclass Members Who Are Pretrial Are Subject to Unreasonable, Punitive Conditions of Confinement in Violation of the Fourteenth Amendment............................................................................................... 29 B. Under a Deliberate Indifference Standard, Post-Conviction Subclass Members’ Eighth Amendment Rights Are Being Violated ...................... 32 1. Plaintiffs are objectively at a substantial risk of serious harm...... 33 2. Defendants have acted and are continuing to act with subjective indifference towards Plaintiffs’ substantial risk of harm .............. 33 III. THE PUBLIC INTEREST AND BALANCE OF EQUITIES WEIGH HEAVILY IN PLAINTIFFS’ FAVOR ................................................................................... 38 IV. IMMEDIATE RELEASE IS OF MEDICALLY VULNERABLE SUBCLASS MEMBERS IS THE ONLY EFFECTIVE REMEDY FOR PLAINTIFFS’ UNLAWFUL DETENTION, WHICH THE COURT HAS AMPLE AUTHORITY TO ORDER .................................................................................. 39 V. THE COURT SHOULD NOT REQUIRE PLAINTIFFS TO PROVIDE SECURITY PRIOR TO ISSUING A TEMPORARY RESTRAINING ORDER ................................................................................................................. 41
CONCLUSION ..............................................................................................................................42
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TABLE OF AUTHORITIES
Page(s)
CASES:
In re Bahadur, No. EP-19-CV-00357-DCG, 2020 U.S. Dist. LEXIS 33455 (W.D. Tex. Feb. 27, 2020) ..................................................................................................................................25
Bell v. Wolfish, 441 U.S. 520 (1979)...........................................................................................................28, 29
Boumediene v. Bush, 553 U.S. 723 (2008).................................................................................................................41
Brown v. Plata, 563 U.S. 493 (2011).................................................................................................................41
Cameron v. Bouchard, -- F. Supp.3d --, 2020 WL 2569868 (E.D. Mich. May 21, 2020)............................................37
Cameron v. Bouchard, No. 20-cv-10949, 2020 WL 1929876 (E.D. Mich. Apr. 17, 2020) .........................................27
Campos v. I.N.S., 70 F. Supp. 2d 1296 (S.D. Fla. 1998) ......................................................................................41
Castillo v. Barr, -- F. Supp. 3d --, CV 20-00605 TJH, 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020) ........................................................................................................................................27
Chambers v. Coventry Health Care of Louisiana, Inc., 318 F. Supp. 2d 382 (E.D. La. 2004) .......................................................................................25
City of Atlanta v. Metro. Atlanta Rapid Transit Auth., 636 F.2d 1084 (5th Cir. Unit B Feb. 13, 1981)........................................................................41
City of Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983)...........................................................................................................27, 28
Cohen v. Coahoma Co., 805 F. Supp. 398 (N.D. Miss. 1992) ........................................................................................38
Daniels Health Scis., L.L.C. v. Vascular Health Scis. L.L.C., 710 F.3d 579 (5th Cir. 2013) ...................................................................................................25
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189 (1989).................................................................................................................28
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DSC Commc’ns Corp. v. DGI Techs., Inc., 81 F.3d 597 (5th Cir.1996) ......................................................................................................25
Duran v. Elrod, 713 F.2d 292 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984)..........................................41
Duvall v. Dallas Cty. Tex., 631 F.3d 203 (5th Cir. 2011) ...................................................................................................30
El Paso Cty., Texas v. Trump, 407 F. Supp. 3d 655 (W.D. Tex. 2019)....................................................................................38
Elrod v. Burns, 427 U.S. 347 (1976).................................................................................................................27
Estelle v. Gamble, 429 U.S. 97 (1976)...................................................................................................................27
Farmer v. Brennan, 511 U.S. 825 (1994).........................................................................................27, 32, 33, 34, 37
Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) .................................................................................................34
Gates v. Cook, 376 F.3d 323 (5th Cir. 2004) ...................................................................................................34
Hare v. City of Corinth, Miss., 74 F.3d 633 (5th Cir. 1996) .........................................................................................28, 29, 32
Harris v. Nelson, 394 U.S. 286 (1969).................................................................................................................39
Harris v. Nelson, 395 U.S. 286 (1969).................................................................................................................41
Helling v. McKinney, 509 U.S. 25 (1993).................................................................................................25, 33, 34, 35
Hilton v. Braunskill, 481 U.S. 770 (1987).................................................................................................................41
Honshul v. Foti, No. 94-30723, 1995 WL 153425 (5th Cir. Mar. 30, 1995)......................................................34
Hope v. Pelzer, 536 U.S. 730 (2002).................................................................................................................34
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Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274 (5th Cir. 1996) .....................................................................................................38
Johnson v. Epps, 479 Fed. App’x 583 (5th Cir. 2012) ........................................................................................33
Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996).......................................................................................................33
Jones ex rel. Varden, No. 2:15cv34-MHT, 2015 WL 5387219 (M.D. Ala. Sept. 14, 2015) .....................................31
Jones v. Texas Dep’t of Crim. Justice, 880 F.3d 756 (5th Cir. 2018) ...................................................................................................34
Lake Charles Diesel, Inc. v. General Motors Corp, 328 F.3d 192 (5th Cir. 2003) ...................................................................................................24
Malam v. Adducci, -- F. Supp. 3d --, 2020 WL 1672662 (E.D. Mich. Apr. 5, 2020) .......................................22, 40
Mobile Cty. Jail Inmates v. Purvis, 581 F. Supp. 222 (S.D. Ala. 1984)...........................................................................................41
Monumental Task Comm., Inc. v. Foxx, 157 F. Supp. 3d 573 (E.D. La. 2016), aff’d sub nom. Monumental Task Comm., Inc. v. Chao, 678 F. App’x 250 (5th Cir. 2017) .........................................................25
New Orleans Home for Incurables Inc. v. Greenstein, 911 F. Supp 386 (E.D. LA 2012).............................................................................................41
Nken v. Holder, 556 U.S. 418 (2009).................................................................................................................38
Palmer v. Johnson, 193 F.3d 346 (5th Cir. 1999) .............................................................................................28, 32
Pierce v. City of Velda City, 4:15-CV-570-HEA, 2015 WL 10013006 (E.D. Mo. June 3, 2015).........................................31
Pierre v. United States, 525 F.2d 933 (5th Cir. 1976) ...................................................................................................40
Poree v. Collins, 866 F.3d 235 (5th Cir. 2017) ...................................................................................................40
Powell v. City of St. Ann, No. 4:15-cv-840-RWS (E.D. Mo. 2015)..................................................................................31
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Schultz v. Alabama, 330 F. Supp. 3d 1344 (N.D. Ala. 2018) ...................................................................................41
Shepherd v. Dallas Cty., 591 F.3d 445 (5th Cir. 2009) ...................................................................................................29
Thakker v. Doll, -- F. Supp. --, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020)...................................................22
United States v. Garlock, No. 18-Cr-00418, 2020 WL 1439980 (N.D. Cal. Mar. 25, 2020) ...........................................27
United States v. Stephens, -- F. Supp. 3d --, No. 15-CR-95, 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020) ..........................................................................................................................................6
Unknown Parties v. Johnson, No. CV- 15-00250-TUC, 2016 WL 8188563 (D. Ariz. No. 18, 2016), aff’d sub nom Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017) ...............................................................26
Vazquez-Berrera v. Wolf, No. 20-cv-1241, 2020 WL 1904497 (S.D. Tex. Apr. 17, 2020)..................................26, 39, 40
Wilson v. Seiter, 501 U.S. 294 (1991).................................................................................................................34
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008).....................................................................................................................24
Youngberg v. Romeo, 457 U.S. 307 (1982).................................................................................................................28
Zhang v. Barr, No. ED CV 20-00331-AB, 2020 WL 1502607 (C.D. Cal. Mar. 27, 2020) .............................27
STATUTES: 18 U.S.C. § 3142(c)(2)...................................................................................................................31 28 U.S.C. § 2241..............................................................................................................................2 28 U.S.C. § 2243......................................................................................................................39, 41 42 U.S.C. § 1983..............................................................................................................................2 D.C. Code § 23-1321 .....................................................................................................................31
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OTHER AUTHORITIES:
ACLU Sues Louisiana Prison After 5 COVID-19 Deaths Reported, Democracy Now (Apr. 7, 2020), https://www.democracynow.org/2020/4/7/headlines/aclu_sues_louisiana_pris on_after_5_covid_19_deaths_reported ....................................................................................26
AMA, AHA, ANA: #StayHome to confront COVID-19, Am. Medical Ass’n (Mar. 24, 2020), https://www.ama-assn.org/press-center/press-releases/ama-aha-anastayhome-confront-covid-19..............................................................................................22, 36
Chief Justice Bernette Joshua Johnson, Letter to the Louisiana District Judges (Apr. 2, 2020) https://www.lasc.org/COVID19/2020-04-02-LASCChiefLetterReCOVID-19andjailpopulation.pdf; .....................................................................23
Coronavirus – What Social Distancing Means, Am. Red Cross (Apr. 14, 2020), https://www.redcross.org/about-us/news-and-events/news/2020/coronaviruswhat-social-distancing-means.html ...................................................................................22, 36
COVID-19, La. Dep’t of Health (May 26, 2020), http://ldh.la.gov/Coronavirus/ ...........................3
Mean Crepeau, Cook County Jail Drops Below 6,000 Inmates to Lowest Level in Decades, Chi. Trib., (Dec. 22, 2017) http://www.chicagotribune.com/news/local/breaking/ct-met-cook-county-jailunder-6000-inmates-20171221-story.html ..............................................................................31
Ctrs. for Disease Control & Prevention, Coronavirus 2019: Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited May 26, 2020). .......................................................................................................2
Ctrs. for Disease Control & Prevention, Correctional and Detention Facilities, (May 26, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/index.html...................................................................35
Ctrs. for Disease Control & Prevention, How to Protect Yourself & Others, (Apr. 13, 2020) ............................................................................................................................22, 36
Ctrs. for Disease Control & Prevention, Social Distancing, Quarantine, and Isolation, (Apr. 4, 2020), https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/social-distancing.html ..............................................................22, 36
Ctrs. for Disease Control & Prevention, When and How to Wash Your Hands, https://www.cdc.gov/handwashing/when-how-handwashing.html (last visited May 26, 2020) ..........................................................................................................................15
Executive Order 2020-27 (Mar. 13, 2020), https://gov.louisiana.gov/assets/ExecutiveOrders/27-JBE-2020-COVID19.pdf .......................................................................................................................................35
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Executive Order (May 15, 2020), https://gov.louisiana.gov/assets/Proclamations/2020/58-JBE-2020.pdf ..................................25
Executive Order (May 15, 2020), https://gov.louisiana.gov/assets/Proclamations/2020/58-JBE-2020.pdf ..................................35
Fifteen Days to Slow the Spread (Mar. 16, 2020), https://www.whitehouse.gov/articles/15-days-slow-spread/ .....................................................2
Sheri Fink, White House Takes New Line After Dire Report on Death Toll, N.Y. Times (Mar. 16, 2020), https://www.nytimes.com/2020/03/16/us/coronavirusfatality-rate-white-house.html. ...................................................................................................3
Anna Flagg & Joseph Neff, Why Jails Are So Important in the Fight Against Coronavirus, N.Y. Times (Mar. 31, 2020), https://nyti.ms/3aIBHjv; .....................................35
Lisa Freeland, David Patton, & Jon Sands, We’ll See Many More Covid-19 Deaths in Prisons if Barr and Congress Don’t Act Now, Wash. Post (Apr. 6, 2020), https://www.washingtonpost.com/opinions/2020/04/06/covid-19sthreat-prisons-argues-releasing-at-risk-offenders/ .....................................................................3
General Order No. 18.8A- Procedures for Bail Hearings and Pretrial Release, http://www.cookcountycourt.org/Manage/DivisionOrders/ViewDivisionOrder /tabid/298/ArticleId/2562/GENERAL-ORDER-NO-18-8A-Procedures-forBail-Hearings-and-Pretrial-Release.aspx .................................................................................31
Stuart Grassian, Psychopathological Effects of Solitary Confinement, Am. J. of Psychiatry 140 (1983) ..............................................................................................................20
Craig Haney, Infamous Punishment: The Psychological Effects of Isolation, 8 Nat’l Prison Project Journal 3 (1993) ......................................................................................20
Lael Henterly, When Bail Is Set, the Rich Walk and the Poor Go to Jail, Seattle Weekly Times, (Aug. 23, 2016), http://www.seattleweekly.com/news/whenbail-is-set-the-rich-walk-and-the-poor-go-to-jail/..............................................................30, 31
How Do I Prevent and Prepare For COVID-19?, Fla. Dep’t of Health (Apr. 24, 2020), https://floridahealthcovid19.gov/prevention/ ...............................................................22
La. Dep’t of Health, http://ldh.la.gov/index.cfm/page/3938#spread (last visited May 26, 2020) ..........................................................................................................................36
Teresa Mathew, More Than 40 People Have Died in Custody of the East Baton Rouge Jail. Will Voters Oust the Sheriff?, The Appeal (Oct. 9, 2019), https://theappeal.org/more-than-40-people-have-died-in-custody-of-the-eastbaton-rouge-jail-will-voters-send-the-sheriff-packing/ .............................................................6
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Jeffrey Metzner & Jamie Fellner, Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics, 38 J. of the Academy of Psychiatry and Law 104 (2010), http://www.hrw.org/sites/default/files/related_material/Solitary%20Confinem ent%20and%20 Mental%20Illness%20in%20US%20Prisons.pdf..........................................20
Brentin Mock, How New Jersey in Leading the Post-Bail Revolution, CityLab, (Nov. 2, 2017) https://www.citylab.com/equity/2017/11/how-new-jersey-isleading-the-post-bail-revolution/544691/. ...............................................................................31
David Mills & Emily Galvin-Almanza, As Many as 100,000 Incarcerated People in Our Prisons Will Die from the Coronavirus, Unless the US Acts Now, Bus. Insider (Apr. 2, 2020), https://www.businessinsider.com/failure-to-releaseprisoners-is-condemning-thousands-to-death-2020-4 .............................................................35
Melissa Neal, Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail, Justice Policy Institute (2012), http://www.justicepolicy.org/uploads/justicepolicy/documents/bailfail.pdf ...........................32
New Model Shows COVID-19 Death Toll is 100,000 Higher Than Current Projections (Apr. 22, 2020), https://www.aclu.org/press-releases/new-modelshows-covid-19-death-toll-100000-higher-current-projections ...............................................38
NYSDOH COVID-19 Tracker, N.Y. State Dep’t of Health, https://covid19tracker.health.ny.gov/ (last visited May 26, 2020) ..........................................37
Udi Ofer & Lucia Tian, New Model Shows Reducing Jail Population will Lower COVID-19 Death Toll for All of Us, ACLU (Apr. 22, 2020), https://www.aclu.org/news/smart-justice/new-model-shows-reducing-jailpopulation-will-lower-covid-19-death-toll-for-all-of-us/ ..........................................................3
Oregon Knowledge Bank, http://okb.oregon.gov/portfolio-item/auto-notification/......................30
Lizzie Presser, A Medical Worker Describes Terrifying Lung Failure From COVID-19 — Even in His Young Patients, ProPublica (Mar. 21, 2020), https://www.propublica.org/article/a-medical-worker-describes--terrifyinglung-failure-from-covid19-even-in-his-young-patients .............................................................3
Jan Ransom & Alan Feuer, We’re Left for Dead: Fears of Virus Catastrophe at Rikers Jail, N.Y. Times (Mar. 30, 2020) ...............................................................................4, 5
Rules Order, Maryland Court of Appeals, http://mdcourts.gov/rules/rodocs/ro192.pdf .............................................................................31
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Lea Skene and Jacqueline DeRoertis, East Baton Rouge Sheriff: It’s Only a Matter of Time Before Coronavirus Arrives in Jail, The Advocate (Mar. 17, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_be4301c 6-6887-11ea-b794-ab2c5dcccad8.html ....................................................................................35
Lea Skene, Coronavirus Hits Louisiana Prisons: Medical Director, Head Warden, First State Inmate Die, The Advocate (Apr. 20, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_697c5eb 6-8354-11ea-a205-9726a420e972.html .....................................................................................5
Lea Skene, East Baton Rouge Deputy — ‘A Dedicated Public Servant’ — Dies from Coronavirus, Sheriff Says, The Advocate (Apr. 5, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_27ecdca c-7759-11ea-9ab3-e72613b104ed.html .............................................................................35, 36
Lea Skene, Officials Close Three Wings at Aging East Baton Rouge Prison Because of Safety Concerns, The Advocate (Dec. 31, 2018), https://www.theadvocate.com/baton_rouge/news/article_56230150-031511e9-b84f-97327cf57814.html ..........................................................................................11, 16
Peter Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature, in Michael Tonry (Ed.), Crime and Justice (2006) ...........................................................................................................................20
St. Louis Univ., “Ticking Time Bomb,” Prisons Unprepared For Flu Pandemic, ScienceDaily (2006), https://www.sciencedaily.com/releases/2006/09/060915012301.htm .......................................5
Asher Stockler, More Than 700 People Have Tested Positive for Coronavirus on Rikers Island, Including Over 440 Staff, Newsweek (Apr. 8, 2020), https://www.newsweek.com/rikers-island-covid-19-new-york-city-1496872 ..........................5
Javonti Thomas, Louisiana Chief Justice calls for reduced jail populations to combat COVID-19 outbreak, KALB (Apr. 3, 2020) https://www.kalb.com/content/news/Louisiana-Chief-Justice-calls-forreduced-jail-populations- to-avoid-COVID-19-outbreak--569348241.html ...........................23
Hans Toch, Men in Crisis: Human Breakdowns in Prisons, Aldine Publishing Co. (1975) .......................................................................................................................................20
Grace Toohey, East Baton Rouge Parish jails people at rates far higher than New Orleans and Lafayette: Here’s Why, The Advocate (Sept. 14, 2019), https://www.theadvocate.com/baton_rouge/news/courts/article_aa68a582c45b-11e9-8439-a7110c42fa80.html .......................................................................................15
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Alexandra Villarreal, ‘I feel defeated’: inside New Jersey hospitals overwhelmed by Covid-19, The Guardian (Apr. 10, 2020), https://www.theguardian.com/usnews/2020/apr/10/new-jersey-coronavirus-hospital-overwhelmed. ..........................................3
Warden, Medical Director of Louisiana Prison Die After Contracting Coronavirus, State Says, WDSU News (Apr. 20, 2020), https://www.wdsu.com/article/2-new-covid-19-related-deaths-reported-bylouisiana-prison-system-1-inmate-1-employee/32214252 ........................................................6
Ryan Whirty, As COVID-19 cases increase, La. hospitals take care to ensure they remain resourced, The Louisiana Weekly (Apr. 20, 2020), http://www.louisianaweekly.com/as-covid-19-cases-increase-la-hospitalstake-care-to-ensure-they-remain-resourced/ ............................................................................38
WHO Announces COVID-19 Outbreak a Pandemic, World Health Org. (Mar. 12, 2020), http://www.euro.who.int/en/health-topics/healthemergencies/coronavirus-covid-19/news/news/2020/3/who-announces-covid19-outbreak-a-pandemic ............................................................................................................2
Timothy Williams et al., ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars, N.Y. Times (Mar. 30, 2020), https://nyti.ms/2Jmnf4z.........................35
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INTRODUCTION This motion seeks urgent – and modest relief – in light of extraordinary circumstances. An outbreak of the novel coronavirus is occurring in the East Baton Rouge Parish Prison (the “Jail”), where approximately 1,200 detainees are held in life-threatening conditions. Plaintiffs sleep as close as two feet from each other, have limited or no access to hygiene products and cleaning supplies, are not properly quarantined when sick, and do not have access to medical care or equipment anywhere near sufficient in quality or volume to respond to a COVID-19 outbreak. Above all, those detainees who are medically vulnerable to the COVID-19 disease face the highest risk of sickness and death in the Jail. In Louisiana alone, at least 167 Department of Corrections officials have contracted COVID-19, and several high-level officials have died. Because social distancing cannot be meaningfully implemented at the current population levels and the Jail has failed to implement additional basic mitigating measures, this number will multiply exponentially at a rapid pace. See Ex. 9 to Pet. for Writ of Habeas Corpus and Compl. (“Compl.”), Declaration of Dr. Fred Rottnek ¶¶ 30-31 (“Rottnek Decl.”); Ex. 27 to Compl., Declaration of Dr. Susan Hassig ¶ 9 (“Hassig Decl.”). As COVID-19 spreads inside and outside the Jail, time is running out to save Plaintiffs’ lives and to prevent the Jail from becoming an epicenter of community infection. Plaintiffs seek immediate relief for medically-vulnerable detainees, requiring Defendants to immediately release from confinement the subclass of people who, because of age or preexisting medical conditions, are at particularly grave risk of death from COVID-19—a risk that cannot be sufficiently mitigated by safeguards or preventive measures in the Jail. Because the risk of infection, illness and death is both excessive in relation any legitimate government interest and deliberately indifferent to the medical needs of medically vulnerable prisoners, their continued detention violates the Fourteenth
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and Eighth Amendments, respectively. Because continued detention is in violation of the Constitution, this Court should order release of medically vulnerable detainees either through 28 U.S.C. § 2241 or, in the alternative, through 42 U.S.C. § 1983.
This extraordinary moment requires the Court’s immediate intervention. The “horizon of risk for COVID-19 in this facility is a matter of days, not weeks.” Ex. 4 to Compl., Declaration of Dr. Adam Lauring ¶ 45, Russell v. Wayne Cty., No. 20-cv-11094 (E.D. Mich. May 4, 2020), ECF No. 1-15 (“Lauring Decl.”). Immediate relief is also in the public interest. A rapid outbreak within the Jail population would drain the Baton Rouge metropolitan area of limited healthcare resources, including ventilators. For these reasons, and for the reasons explained further below, the Court should grant Plaintiffs’ motion for temporary restraining order.
BACKGROUND AND FACTS I. The COVID-19 Crisis is a Health Crisis Unmatched in Living Memory.
We are in the midst of an unprecedented public health emergency. The number of people infected by COVID-19 has grown exponentially in this country since the first case was identified in January.1 By March 11, 2020, the World Health Organization had classified the outbreak as a global pandemic.2 As of May 26, over 1,600,000 people have been diagnosed with COVID-19 in the United States, with over 97,000 deaths.3 Without effective public health interventions, the Centers for Disease Control and Prevention (“CDC”) project that as many as 2.2 million Americans will die.4
1 See Ctrs. for Disease Control & Prevention, Coronavirus 2019: Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited May 26, 2020). 2 See WHO Announces COVID-19 Outbreak a Pandemic, World Health Org. (Mar. 12, 2020), http://www.euro.who.int/en/health-topics/health-emergencies/coronavirus-covid-19/news/news/2020/3/whoannounces-covid-19-outbreak-a-pandemic; see also Fifteen Days to Slow the Spread, WhiteHouse.gov (Mar. 16, 2020), https://www.whitehouse.gov/articles/15-days-slow-spread/ 3 Coronavirus 2019, supra n. 1. 4 See Sheri Fink, White House Takes New Line After Dire Report on Death Toll, N.Y. Times (Mar. 16, 2020), https://www.nytimes.com/2020/03/16/us/coronavirus-fatality-rate-white-house.html.
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Louisiana has reported over 37,000 cases and over 2,500 deaths, with nearly ten percent of those cases (3,386) in East Baton Rouge Parish.5 This number is sure to rise if conditions in this country’s jails and prisons are not addressed rapidly.6
COVID-19 is a highly contagious virus that can severely damage lung tissue, impede cardiac functions (causing heart failure), and permanently harm other organs. Ex. 11 to Compl., Declaration of Dr. Jonathan Louis Golob ¶¶ 7, 8, Dawson v. Asher, Case No. 2:20-cv-00409-JLRMAT (D. Or. Filed March 16, 2020), ECF No. 5 (“Golob Decl.”). The experience of a severe case of COVID-19 has been compared to “drowning in [one’s] own blood.”7 Approximately 20% of people infected experience life-threatening complications; between 1% and 3.4% die.8 The fatality rate is about ten times higher than a severe seasonal influenza, even in countries with highly effective health care systems.9 Complications manifest at an alarming pace, and the required levels of medical support—which include highly specialized equipment like ventilators as well as an entire team of care providers—have been rapidly overwhelming hospitals nationally and globally.10 There is no vaccine against COVID-19, nor any known medication to prevent or treat infection from the virus. Hassig Decl. ¶ 3. The only effective measure to reduce the risk of infection and thus severe illness or death to vulnerable individuals is to enforce regular social distancing. Id.
5 COVID-19, La. Dep’t of Health (May 26, 2020), http://ldh.la.gov/Coronavirus/. 6 See Lisa Freeland, David Patton, & Jon Sands, We’ll See Many More Covid-19 Deaths in Prisons if Barr and Congress Don’t Act Now, Wash. Post (Apr. 6, 2020), https://www.washingtonpost.com/opinions/2020/04/06/covid19s-threat-prisons-argues-releasing-at-risk-offenders/; Udi Ofer & Lucia Tian, New Model Shows Reducing Jail Population will Lower COVID-19 Death Toll for All of Us, ACLU (Apr. 22, 2020), https://www.aclu.org/news/smartjustice/new-model-shows-reducing-jail-population-will-lower-covid-19-death-toll-for-all-of-us/. 7 See, e.g., Lizzie Presser, A Medical Worker Describes Terrifying Lung Failure From COVID-19 — Even in His Young Patients, ProPublica (Mar. 21, 2020), https://www.propublica.org/article/a-medical-worker-describes-terrifying-lung-failure-from-covid19-even-in-his-young-patients. 8 Id. 9 Id. 10 Alexandra Villarreal, 'I feel defeated': inside New Jersey hospitals overwhelmed by Covid-19, The Guardian (Apr. 10, 2020), https://www.theguardian.com/us-news/2020/apr/10/new-jersey-coronavirus-hospital-overwhelmed.
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Accordingly, public health experts and officials urge that people isolate from others at a minimum distance of six feet, as well as wash their hands frequently, use hand sanitizer, and frequently clean and disinfect high touch surfaces and objects. See, e.g., Rottnek Decl. ¶ 14. These measures are particularly important in jail, a setting that can rapidly become a “public health disaster unfolding before our eyes.”11
Although everyone is at risk of contracting COVID-19, some populations are at higher risk for severe health outcomes. Hassig Decl. ¶ 4. Certain underlying medical conditions—including lung disease, asthma, chronic obstructive pulmonary disease, chronic liver or kidney disease, diabetes, epilepsy, hypertension, compromised immune systems, blood disorders, inherited metabolic disorders, strokes, and pregnancy—increase the risk for individuals of any age. Id. People over the age of sixty-five also face greater chances of serious illness or death. Id. The only known effective measure to mitigate these more extreme risks is to prevent infection in the first instance. Id. ¶ 5. II. A COVID-19 Jail Outbreak is an Extreme Threat to Public Health.
People incarcerated in jail are at heightened risk of infection and death from COVID-19.12 According to public health experts, “the risk posed by COVID-19 in jails and prisons is significantly higher than in the community . . . in terms of risk of transmission, exposure, and harm to individuals who become infected.”13 This is due to a number of factors, including forced proximity of detained individuals, their inability to protect themselves through social distancing,
11 Jan Ransom & Alan Feuer, We’re Left for Dead: Fears of Virus Catastrophe at Rikers Jail, N.Y. Times, (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html. 12 See Ex. 3 to Compl., Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, 2 (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html. 13 See, e.g., Ex. 7 to Compl., Declaration of Dr. Jaimie Meyer ¶ 7, Velesaca v. Wolf, No. 1:20-cv-01803-AKH (S.D.N.Y. Mar. 16, 2020), ECF No. 42 (“Meyer Decl.”).
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lack of medical and hygiene supplies, heavy reliance on outside hospitals for serious medical care, forced labor of incarcerated people in cleaning the facilities with insufficient supplies, constant cycling of people through the jails, and inadequate medical care within jails and prisons. Rottnek Decl. ¶¶ 15-17.
The growing devastation in jails around the country is a harbinger for what has already impacted East Baton Rouge Parish and what it should expect. In New York City, less than a month from the detection of the first case at Rikers Island, 167 detainees, 114 correction staff, and 20 health workers tested positive for COVID-19, and two jail officers had died.14 The COVID-19 infection rate in New York City’s jails is far higher than the rates for the most infected regions of the world.15 In Louisiana, the warden and medical director at the state prison in Avoyelles Parish died of COVID-19-related conditions.16 East Baton Rouge Parish (the “Jail”) is at risk for a similar explosion.
An outbreak cannot be contained inside the Jail. What happens to the people trapped inside this “ticking time bomb”17 affects others who cycle through, including correctional and medical staff. See, e.g., Rottnek Decl. ¶ 57, 64. The outbreak then spreads to staff’s families and the community. Id. Prison outbreaks can quickly overwhelm regional hospitals, making resources unavailable to treat others suffering from COVID-19 or unrelated life-threatening conditions like heart attacks. Id. ¶ 10. As courts have noted, “[t]he more people we crowd into [a] facility, the more we’re increasing
14 See Jan Ransom & Alan Feuer, ‘We’re Left for Dead’: Fears of Virus Catastrophe at Rikers Jail, N.Y. Times (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html. 15 Asher Stockler, More Than 700 People Have Tested Positive for Coronavirus on Rikers Island, Including Over 440 Staff, Newsweek (Apr. 8, 2020), https://www.newsweek.com/rikers-island-covid-19-new-york-city-1496872. 16 Lea Skene, Coronavirus Hits Louisiana Prisons: Medical Director, Head Warden, First State Inmate Die, The Advocate (Apr. 20, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_697c5eb6-835411ea-a205-9726a420e972.html. 17 St. Louis Univ., “Ticking Time Bomb,” Prisons Unprepared For Flu Pandemic, ScienceDaily (2006), https://www.sciencedaily.com/releases/2006/09/060915012301.htm.
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the risk to the community.” United States v. Stephens, __ F. Supp. 3d __, No. 15-CR-95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (internal citation omitted). III. Defendants Are Not Able to–and at Present–Cannot Take Necessary Steps to
Prevent A Widespread Outbreak in the Jail. The Jail is designed to hold nearly 1,600 detainees, the majority of whom are members of the Pre-Trial Subclass. The Jail also holds individuals on work-release, and post-conviction detainees serving sentences with the Department of Corrections. Currently, the jail confines over 1,235 people. Prior to the outbreak of COVID-19, the detainees slept in “lines” designated by letters, which are open spaces with dozens of bunk beds. At the end of each line (or pair of lines) is a shared bathroom and shower facility. The detainees all share “day rooms,” where they socialize, watch television, and speak with their loved ones. Aggressive measures are required to stop the spread of COVID-19 between and within the lines, as an outbreak in one part of the Jail would all but guarantee a spread of the virus to other detainees and staff. See, e.g., Rottnek Decl. ¶ 12. This risk is not hypothetical given the number of Jail staff and detainees who have already contracted COVID-19. Defendants are well aware of COVID-19 and its grave risks,18 but they have failed to undertake the necessary measures to protect detainees from contracting the virus, instead directly placing detainees in harm’s way.19 Indeed, for medically vulnerable detainees, because proper social distancing is not possible in the Jail, there can be no measures to protect them from serious illness or death short of release, as least until there is a vaccine. See infra Section J.
18 See, e.g., Warden, Medical Director of Louisiana Prison Die After Contracting Coronavirus, State Says, WDSU News (Apr. 20, 2020), https://www.wdsu.com/article/2-new-covid-19-related-deaths-reported-by-louisiana-prisonsystem-1-inmate-1-employee/32214252. 19 This is not new for the Jail, which has a lengthy history of detainee deaths. See, e.g., Teresa Mathew, More Than 40 People Have Died in Custody of the East Baton Rouge Jail. Will Voters Oust the Sheriff?, The Appeal (Oct. 9, 2019), https://theappeal.org/more-than-40-people-have-died-in-custody-of-the-east-baton-rouge-jail-will-voterssend-the-sheriff-packing/.
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This is compounded by the parish’s detainee intake procedures. Instead of entering the Jail directly, many detainees are processed through central booking, where they can stay for several days before being transferred to the Jail. Ex. 1, Declaration of Cedric Franklin ¶ 7 (“Franklin Decl.”). The cells in central booking are rarely mopped or cleaned, and detainees get cycled in and out through the day. Id. None of the cells have mattresses or bedding, and the detainees sleep on the wooden benches or concrete floor. Id. ¶ 8. Detainees report that central booking does not test for COVID-19. See id. ¶ 9.
A. Social Distancing is Impossible at the Jail and Sanitation and Hygiene is Dangerously Insufficient.
At current populations, social distancing is impossible throughout the Jail. On the F, J, and Q lines of the Jail, where the detainees normally reside, social distancing is unachievable. Detainees are brought to the day room twice a day for roll call and shift change, during which they must stand next to each other while the staff completes the process, and cannot practice social distancing. Ex. 2, Declaration of Willie Shepherd ¶ 6 (“Shepherd Decl.”); Ex. 3, Declaration of Christopher Lee Rogers ¶ 48 (“Rogers Decl.”). Both roll call and shift change each take one hour to complete. Rogers Decl. ¶48. All of the beds in the Q line, for example, are contained in one open room, spaced about two feet apart. Ex. 4, Declaration of Forrest Hardy ¶¶ 5-6 (“Hardy Decl.); Ex. 5, Declaration of Jerry Bradley ¶ 4 (“Bradley Decl.”). The detainees can easily touch other beds while laying in their own. Shepherd Decl. ¶ 5. Detainees are also permitted to visit the day room at certain hours to socialize and watch television, but it is not designed for social distancing. The benches and tables in the room are bolted to the ground and cannot be moved. Hardy Decl. ¶ 7; Shepherd Decl. ¶ 6. Prior the beginning of April, the detainees were also forced to violate social distancing norms in the dayroom for “pill call” twice a day, during which they received their medication. Ex. 6, Declaration of Cedric Spears ¶ 28 (“Spears Decl.”).
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The guards do not spray surfaces such as the toilet, sink, or door handles as part of their cleaning protocol in the Jail. Rogers Decl. ¶ 22. Plaintiffs are prevented from adequately cleaning any of these surfaces and spaces more frequently themselves because the Jail controls access to basic cleaning supplies, like mops and buckets, and provides them to detainees, at most, twice a day. Rogers Decl. ¶ 25; Ex. 7, Declaration of Demond Harris ¶ 23 (“Harris Decl.”); Hardy Decl. ¶ 16. This failure to provide cleaning supplies is especially important in the bathroom because “[i]f two guys are using the toilets next to each other, their legs could touch.” Hardy Decl. ¶ 6. Detainees also are generally not given bleach to clean these shared surfaces, even though the Jail staff apparently has such chemicals available for this purpose. Ex. 8, Declaration of Joseph Williams ¶ 21 (“Williams Decl.”); Rogers Decl. ¶ 24; Spears Decl. ¶ 10 (describing guards’ use of bleach to kill leeches in the bathroom drain). Most days, phones and tablets, shared by all detainees on a given floor to communicate with loved ones or attorneys, are not cleaned. Bradley Decl. ¶ 14. Many detainees resort to placing socks over their hands when they handle the communal phone. Id.; Hardy Decl. ¶ 17; Shepherd Decl. ¶ 28. Finally, laundry is now done twice a week, but the detainees do not believe that the Jail is using proper detergents to sanitize their one uniform and set of sheets. Spears Decl. ¶ 25.
B. Defendants’ testing and identification of COVID-19 has been inadequate Even though COVID-19 has already infiltrated the Jail, Defendants are not taking adequate measures to prevent the virus from spreading by providing appropriate care for detainees who may be or are positive for COVID-19. Although the first detainee tested positive for COVID-19 on March 9 (and later died in the hospital), the Jail did not change its procedures to account for the virus until late March. Spears Decl. ¶ 27. And when Defendants did introduce steps to identify detainees with COVID-19, they started only by checking the detainees’ temperatures. Hardy Decl. ¶ 10; Harris Decl. ¶ 6; Bradley Decl. ¶ 5. Some detainees who had high temperatures were then
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sent back to the line. Spears Decl. ¶ 11. Testing for COVID-19 was introduced only in the second week of April, though not all detainees have been tested. See Franklin Decl. ¶ 19; Ex. 9, Declaration of Clifton Belton, Jr. ¶ 4 (“Belton Decl”).
Detainee Christopher Rogers, for example, reported that he wasn’t feeling well in the middle of April. Rogers Decl. ¶ 8. He was told by one of the nurses that because no one on his side of the Jail had the virus, nothing was wrong with him and they would take his temperature later. Id. In fact, Rogers was left on the line for several days with a bad headache and body aches, and only had his temperature checked on April 20. Id. ¶ 9. He was then tested for coronavirus, and received a positive result four days later, at which point he was transferred from his line to a different location in the Jail. Id. In all, Rogers was left on the line for nearly one week while exhibiting symptoms of coronavirus, see id. ¶¶ 8-9—potentially exposing hundreds of other detainees. Similarly, Willie Shepherd was left on the line for three days with a headache and body aches before being transferred from the line, and he too tested positive for coronavirus. Shepherd Decl. ¶ 7.
Other detainees similarly report that in spite of the fact that they reported symptoms of coronavirus to the nurses, they were not provided adequate treatment unless their temperatures were above the normal level. Ex. 10, Declaration of Devonte Stewart ¶ 5 (“Stewart Decl.”). During April, there was widespread sickness on the lines, but the Jail was either unable or unwilling to control the spread of disease. Spears Decl. ¶ 11 (describing numerous sick detainees in his line who were never transferred).
C. Defendants maintain dangerous conditions at the Jail. The Jail’s living conditions are abhorrent. Defendants are not taking basic measures to maintain safe, hygienic conditions at the Jail and are instead creating and perpetuating a dangerous, unsanitary environment that is putting detainees at risk. On the “lines” where the detainees reside,
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there is “mold growing and rust everywhere,” the roof leaks, and there is mold and scum in the bathrooms. Hardy Decl. ¶ 4; Shepherd Decl. ¶ 27. Detainees report that there is “blood and other bodily fluids” on the walls, and that some of the lines have cockroaches, leeches, and gnats. Spears Decl. ¶ 5. There is not sufficient air circulation on the lines, and the cells can reach in excess of 100 degrees on some days. Rogers Decl. ¶ 18.
The bathrooms and showers the detainees share are unsanitary or often not even functioning. The shower mats have mold on them, and the showers themselves are rusted. Rogers Decl. ¶ 27. In some of the bathrooms, up to half the urinals are broken, as are some toilets. Spears Decl. ¶ 10. Detainees estimate that the showers are fully sanitized approximately once a week, even though at least 80 detainees share each set of showers, in an area that is not large enough for detainees to have sufficient personal space. Hardy Decl. ¶ 18; Spears Decl. ¶ 19 (describing how the detainees must clean the showers, and are rarely given bleach to do so). The showers that do work are “ice cold,” and some detainees resort to using the sink to shower. Shepherd Decl. ¶ 17; Harris Decl. ¶ 23; Williams Decl. ¶ 23. The drains in the bathrooms are often clogged with waste water, and when the showers are used, water “pour[s] out onto the floor and leak[s] down the whole line.” Rogers Decl. ¶ 27.
Detainee Cedric Spears, who worked in the kitchen from mid-February to mid-March, describes it as such:
The kitchen is filthy. You can smell the spoiled food when you walk into the kitchen. There is also old food caked into the cracks in the serving line area, on the counter, and on the walls. There are food particles everywhere. They don’t sanitize anything properly, most of the dishes aren’t cleaned properly, and they use the same broom for sweeping the floors and cleaning out the hot box where food is stored. Spears Decl. ¶ 7. D. Defendants’ use of “lockdown” to treat detainees with COVID-19 For those detainees identified as sick, the Jail has established a policy of isolation and
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denial of basic medical services, placing detainees at increased risk of medical distress. In response to the outbreak of COVID-19, the Jail re-opened the A, B, and C blocks of the Jail, which had been closed down two or three years earlier for “safety concerns.”20 Harris Decl. ¶ 8; Rogers Decl. ¶ 13; Bradley Decl. ¶ 9.
The conditions in the decrepit A, B, and C blocks are even worse than the conditions on the F, J, and Q lines. Because these areas of the Jail had not been outfitted for human habitation for several years, there are rats, cockroaches, and spiders in the cells, and the detainees have seen fibers or hairs in the water and do not know if the sinks in their cells are safe to drink from. Harris Decl. ¶ 8; Rogers Decl. ¶ 22; Franklin Decl. ¶ 37; Shepherd Decl. ¶ 14; Williams Decl. ¶ 11 (“I have to store [my property] high up so the rats can’t get into it” and describing a rat “the size of an opossum”); Bradley Decl. ¶ 9. Many of the showers, toilets, and sinks are leaking, and mold grows abundantly in those areas. Rogers Decl. ¶ 27. The guards only rarely clean the blocks, and this limited sanitation is confined to the hallway floor, not door handles or other communal areas. Rogers Decl. ¶ 22. The cells are so close to one another that detainees can reach out through the iron bars of their cell into an adjacent cell, which they did to pass items such as food and toilet paper. Williams Decl. ¶ 9; Rogers Decl. ¶ 17; Harris Decl. ¶ 9. Detainees are given a single piece of paper towel to clean down their cells, and were not provided with any cleaning supplies apart from soap and water from their sinks. Bradley Decl. ¶¶ 10, 12.
Detainees in the A and C blocks are held in solitary confinement, while detainees in the B block share their cells with up to two other detainees. Williams Decl. ¶ 8; Harris Decl. ¶ 8. Within the B block cells, it is impossible for the detainees to practice social distancing. Williams Decl. ¶
20 See also Lea Skene, Officials Close Three Wings at Aging East Baton Rouge Prison Because of Safety Concerns, The Advocate (Dec. 31, 2018), https://www.theadvocate.com/baton_rouge/news/article_56230150-0315-11e9-b84f97327cf57814.html.
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10 (“We can’t stay 6 feet apart from the people in our cell because there’s not that much space in the cell.”). Not all of the detainees in the blocks have tested positive for COVID-19, and detainees who have tested positive for COVID-19 are sometimes placed in the same cells as those who have tested negative. Shepherd Decl. ¶ 8.
Detainees on “lockdown” in the A, B, and C blocks are locked in their cells for most of the day. Some detainees report that they were kept in their cell the entire day for their first week in lockdown, and were only permitted to leave their cells for up to an hour thereafter (and some for less time), permitting them finally to shower or use the phone to call their loved ones. Harris Decl. ¶ 11; Rogers Decl. ¶ 14; Stewart Decl. ¶ 13; Shepherd Decl. ¶ 15. Detainee Devonte Stewart explains that he has been threatened with mace and beatings if he asks to be let out of his cell for more than thirty minutes. Stewart Decl. ¶ 16. While in isolation, the detainees are largely prohibited from speaking with their families or receiving any news from the outside world. Shepherd Decl. ¶ 8; Rogers Decl. ¶¶ 14, 21, 33 (describing the lack of a television in the day room in Block B).
E. Defendants in lockdown lack access to basic medical services Because detainees in lockdown are isolated from the rest of the Jail, they are often denied the same access to medical care even though they are most vulnerable. Detainees report that the guards rarely visit the cells in the blocks, and therefore fail to respond to the detainees’ concerns. Harris Decl. ¶ 20 (“The nurses were so scared to go back to the lockdown lines that they would only come back to check our temperatures and then literally run out of there”); Stewart Decl. ¶ 17. The nurses, who are supposed to visit twice a day for pill call, do not arrive every day, and jail staff with no experience or training in medicine are left to administer medication. Rogers Decl. ¶ 37. Sometimes the nurses do temperature checks during pill call, and sometimes they do not. Franklin Decl. ¶ 42.
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Willie Shepherd has high blood pressure and a bleeding ulcer. Shepherd Decl. ¶ 4. On April 11, 2020, he reported that he had a headache and body aches. Id. ¶ 7. Three days later, a Jail nurse administered a COVID-19 test to Shepherd. Five days later, Shepherd tested positive for Covid-19. Id. For a total of eight days, Shepherd remained in the Q3 line with 45 other detainees while he exhibited symptoms of COVID-19. Id. ¶¶ 5, 7. Shepherd was transferred to the B3 Block, and was placed in a cell with four other detainees who had tested negative for COVID-19. Id. ¶ 8. Shepherd describes the medical care he received in the B3 Block:
We didn’t get any real medical care on B3. Medical staff came back twice a day for pill calls, when they would give us our prescription medications. I got medications for my high blood pressure and bleeding ulcer at pill call. But all they gave us for coronavirus was Tylenol. After about a week and a half on B3, the nurses also began giving us vitamins. That was all we got. We didn’t even get Gatorade, and we barely got any water. I don’t know why they moved us if they weren’t going to do anything for us but give us Tylenol and vitamins. The nurses didn’t give us any other medical care during pill call. Id. ¶ 9. One day, Shepherd was throwing up blood. Id. ¶ 11. It took Jail staff five hours to respond, by which time Shepherd had cleaned up any traces of blood from the toilet into which he vomited. Id. As a result, the nurse refused to give him any medical treatment. Id. He received water in his cell only sporadically, and the water in the sink in his cell was “really hot, and if it sat for a little while, brown stuff came out of the sink.” Id. ¶ 14. Three weeks later, Shepherd was moved back to the Q line, but was never given any paperwork to corroborate that he in fact tested negative for COVID-19. Id. ¶ 20. Jerry Bradley is currently in lockdown. Previously confined on the Q9-10 line with over 100 other detainees, he was moved to Block C01 on April 13, 2020, even though he did not report any body aches or other symptoms, and his temperature was under 100 degrees. Bradley Decl. ¶¶ 4, 6. He learned that he tested positive for COVID-19 on April 14, and was transferred with five other positive detainees to lockdown. Id. ¶ 8. His first night in lockdown, the Jail staff brought
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him only one cup of drinking water, and other nights he was given no water at all. Id. ¶ 11. He received no cleaning supplies apart from soap, water, and a paper towel. Id. ¶ 12. For medical treatment, Bradley received vitamins, Mucinex, and Tylenol, none of which are proven to treat COVID-19. Id. ¶ 15. He received no other medical care, and was transferred to the A1 Block after about a week, where he has remained—on lockdown—for over a month. Id. ¶ 17. During the time he has been on lockdown, he has seen more and more sick detainees brought to his block, and he fears becoming sick again. Id. ¶ 21. Nor is he improving; Bradley tested negative for COVID-19 on May 1, positive on May 4, and positive again on May 19. Id. ¶ 22.
Joseph Williams, is also currently in lockdown, transferred there after recording a temperature of approximately 100 degrees on April 24 and testing positive on a test administered the next day. Williams Decl. ¶¶ 5, 7, 13. He shares his cell with one other detainee, but they cannot stay six feet apart because the cell is only ten by six feet. Id. ¶ 10; Shepherd Decl. ¶ 8. Several days after his positive test, he was given Tylenol to manage the symptoms. Other detainees around him were not as fortunate; he describes how he beat on the door of his cell for 15-20 minutes to get medical attention for one of the other detainees, until the guards finally stopped ignoring him. Id. ¶ 16. And Williams describes his own experience when he suffered chest and stomach pains, including vomiting:
I tried to get medical care by beating on the door for 20-30 minutes, but no one responded. I had to call my aunt to get some help. She and several other members of my family called . . . to try to get me some medical attention. Guards finally came on the line to check on me, and I told them to call medical. They kept asking me why, but one of the guards finally called medical. The nurse was mad at me when she got to the line. She just checked my temperature and blood pressure, then gave me Tylenol and another pill for three days. I don’t know what that pill was, and I didn’t have a temperature. The nurse left immediately after. Id. ¶ 17. Defendants are failing to provide basic medical services to the most vulnerable detainees, including those in lockdown.
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F. Defendants do not provide basic personal hygiene supplies or sufficient personal protective equipment to detainees in response to COVID-19. In the face of this global pandemic, Defendants have not and do not provide detainees with
enough of the basic hygiene supplies that are critical to preventing the spread of COVID-19. Although the CDC advises that handwashing is one of the best ways to protect against COVID19,21 the Jail only provides a single small bar of soap per week to detainees, and even then only sometimes. Hardy Decl. ¶ 19. If the detainees want extra soap, those who can afford it must purchase it from the commissary, an overwhelming burden given that the vast majority of detainees live below the poverty line.22 Rogers Decl. ¶ 28; Williams Decl. ¶ 25. In addition to using the soap for their personal hygiene, detainees must use the single bar of soap to sanitize their cells and communal spaces. Harris Decl. ¶ 26; Williams Decl. ¶¶ 20. Defendants do not otherwise provide Plaintiffs or putative class members with supplies for hand sanitization. Spears Decl. ¶ 23.
The detainees also are not given access to sufficient personal protective equipment, such as masks and gloves. No detainee received any sort of mask until April 7—a full week after the CDC issued its guidance to prisons—and the masks were provided only to a portion of the detainees. See Compl. ¶ 46; Harris Decl. ¶ 16. For the detainees who received masks, they were instructed to use them for a full week. Williams Decl. ¶ 27. Other detainees were given bandanas instead of masks, which they are given the option to turn in for cleaning once a week. Id.; Rogers Decl. ¶ 12; Hardy Decl. ¶ 20; Shepherd Decl. ¶ 19. No detainees are given gloves. Rogers Decl. ¶ 12; Spears Decl. ¶ 20. And even the staff does not consistently wear personal protective
21 See Ctrs. for Disease Control & Prevention, When and How to Wash Your Hands, https://www.cdc.gov/handwashing/when-how-handwashing.html (last visited May 26, 2020). 22 Grace Toohey, East Baton Rouge Parish jails people at rates far higher than New Orleans and Lafayette: Here's Why, The Advocate (Sept. 14, 2019), https://www.theadvocate.com/baton_rouge/news/courts/article_aa68a582-c45b11e9-8439-a7110c42fa80.html.
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equipment when they interact with the detainees. Shepherd Decl. ¶ 22; Williams Decl. ¶ 27; Bradley Decl. ¶ 5.
Following the outbreak of the virus, the guards now bring food to the detainees in their cells. Hardy Decl. ¶ 21; Shepherd Decl. ¶ 13. Some guards wear masks and gloves while they deliver the food, and others do not. Rogers Decl. ¶ 35. Jail staff will sometimes serve food to detainees on the same carts that are used for collecting trash. Spears Decl. ¶ 18; Hardy Decl. ¶ 22.
G. Defendants fail to provide adequate and timely medical care. 1. Defendants’ medical procedures are inadequate and have been for years.
For years, Baton Rouge policymakers have acknowledged that the old closed part of the jail is unfit for the safe detention of people and the provision of health care.23 In 2015, Sheriff Gautreaux told the Parish’s Metro Council the “old part of the prison is really in deplorable condition. We have issues with ventilation; with plumbing. Really it’s laid out in the old way, that poses a problem from a safety standpoint for the safety of the inmates in the prison . . . ”24 He concluded that the current facility is “not adequate for providing health care” and admitted the “if [investigators from the federal Department of Justice] came in that prison today, they would shut half of it down.” The Metro Council also heard that Dr. Rani Whitfield, who had worked in the jail for 16 years, witnessed a “significant decline in care to patients” due to underfunding and
23 See Lea Skene, Officials Close Three Wings at Aging East Baton Rouge Prison Because of Safety Concerns, The Advocate (Dec. 31, 2018), https://www.theadvocate.com/baton_rouge/news/article_56230150-0315-11e9-b84f97327cf57814.html 24 See Ex. 17 to Compl., City of Baton Rouge/Parish of East Baton Rouge, Jan. 14, 2015 Metro. Council Mtg., Items 13P and Q Part 1.
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understaffing.25 Councilwoman Banks-Daniel presciently described the health care situation in the jail as “catastrophic.”26
Even for those not on lockdown, the process for obtaining medical attention—for COVID19 symptoms or more routine medical care—is woefully deficient. To request medical attention, detainees are required to fill out a “medical request form,” and the nurses are supposed to check on the detainees when they distribute pills. Bradley Decl. ¶ 15; Stewart Decl. ¶ 25 (“I asked them for extra medicine, and they said my injuries are not serious enough and they need paperwork to treat them”). During pill call, detainees speak to the nurses without masks, and are not permitted to wash their hands before handling and taking their pills. Spears Decl. ¶ 28. And even when detainees are able to make formal requests for medicine or treatment, their requests are often delayed or ignored. Rogers Decl. ¶ 39; Stewart Decl. ¶ 16. In addition, since the outbreak of COVID-19, detainees believe that the medical staff has been less attentive to other medical needs of the detainees. Shepherd Decl. ¶ 25; Spears Decl. ¶ 31 (“I can’t talk to the social worker about my [mental health] diagnosis or my medications because she won’t come back on the line to talk to us.”).
Many detainees report that they cannot get medical attention when they require it. Christopher Rogers recalls that there were times when his leg was numb while he had COVID-19 but no one came to help him when he called to the nurse for help. Rogers Decl. ¶ 40. For those who are brought to the infirmary, it is described as “nasty,” with gnats and pooled water. Belton Decl. ¶ 8. There is also no buzzer or call button to alert the staff in the case of an emergency, and all of the infirmary facilities are shared, regardless of the ailments of the detainees in the infirmary.
25 Ex. 18 to Compl., City of Baton Rouge/Parish of East Baton Rouge, Aug. 26, 2015 Metro. Council Mtg. 28:10, Item 9 Part I and II. 26 Id. at 51:39.
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Id. Finally, some detainees report that the Jail has now stopped providing even the rudimentary
protections it previously permitted, such as checking temperatures and testing for the virus. Spears Decl. ¶ 27; Shepherd Decl. ¶ 24.
2. Defendants ignore and retaliate against detainees for filing grievances concerning the lack of medical care or unsanitary conditions of confinement
Although the Jail has a formal process for filing “grievances,” it has ignored most grievances related to COVID-19. In order to file a grievance, a detainee must complete a specific form. Spears Decl. ¶ 33. Because the box in which the detainees must place the grievance form is outside the living area, the detainees must give the grievance forms to the guards, and rely on them to put them in the box. Id. In addition, the forms are only sometimes available, and the staff will make excuses as to why a detainee cannot receive a form at the moment. Id. at ¶ 27.
Because the Jail has discouraged grievances since the COVID-19 outbreak and responded to only a very few grievances submitted, detainees fear retaliation if they continue to push for a response. Hardy Decl. ¶ 24. In fact, some detainees have been punished for raising grievances. Christopher Rogers asked to speak with the Jail Captain and Warden regarding his grievances as to the conditions in the B Block, and was told that the Sergeant in charge of responding to grievances would not visit the B Block to speak with him. Rogers Decl. ¶ 43. After filing a second grievance related to the inability for detainees to use chemical cleaning products in their cells, the Deputy involved came to Rogers’ cell, questioned him aggressively, and shoved Rogers into a wall. Id. ¶ 44. Rogers received no other response to this grievance.
H. Defendants’ failure to control the COVID-19 outbreak and use of punitive solitary confinement threatens the mental health and safety of all detainees
In addition to the physical ailments that the detainees are forced to endure with limited medical attention, their mental health is also suffering as a result of the Jail’s policies towards
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COVID-19. Many of the detainees are worried that they are at high risk of contracting the virus because of the close quarters, and because there is frequent transfer of detainees between the different blocks, increasing the likelihood that healthy detainees are put into contact with those who have contracted the virus.
Several detainees report anxiety because they know that the Jail is not adequately prepared to help them:
• “I feel like my life might be in danger if I get the coronavirus in here. I’m really stressed because no one is listening to me in here.” Spears Decl. ¶ 32;
• “I’m really stressed on B3 because I could be home but I’m stuck here on a parole hold and I’m locked in a cell around sick people . . . ” Williams Decl. ¶ 29.
• “It was really stressful to be on the B3 line because we were bored, isolated, we didn’t know what was going on, and there were older people back there in way worse condition. One man was really sick. We would bring him water when we could, but it was depressing and stressful to watch him struggle. I have been diagnosed with depression and anxiety, and being on B3 was making me more depressed and stressed. Even after I thought I’d beat coronavirus, I was stuck back there with sick people, and I was constantly afraid I’d get sick again.” Rogers Decl. ¶ 42;
• “It’s really tough being in lockdown. I’m depressed, angry, and stressed back here. And I’m often very hungry, too.” Stewart Decl. ¶ 28;
• “They’re really not doing this ‘isolation’ thing well. They aren’t social distancing us at all, and they’re mixing people who haven’t been confirmed to have coronavirus with those who have tested positive.” Franklin Decl. ¶ 43.
That anxiety is surely heightened for those held—even for period of weeks—in punishing solitary confinement. It is well-documented that solitary confinement, even for a period of days or weeks can have profound psychological and physical effects, such as a heightened state of anxiety and nervousness, obsessive thoughts, paranoia, hallucinations, headaches, insomnia, lethargy or chronic fatigue, nightmares, heart palpitations, suicidal ideations and fear of impending
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nervous breakdowns.27
Because the Jail is failing to take even remedial steps to assuage the fears of the detainees,
legal recourse is necessary in order to protect the detainees’ wellbeing.
I. Defendants fail to provide information about COVID-19 and its spread.
Defendants have done little to educate the detainees in their care about the pandemic;
detainees are instead forced to rely on the news or information from loved ones—when they can
access it—for details about the virus and how to best protect themselves. Although some signs
about keeping clean and not touching their faces have been posted, Jail staff have not explained
the symptoms or warning signs of the virus to detainees. Spears Decl. ¶ 29; Hardy Decl. ¶ 23
(“The guards don’t give us any information or updates about the coronavirus, and they didn’t tell
us about washing our hands.”). As detainee Cedric Spears explains:
The guards don’t tell us anything about the coronavirus or how to take care of ourselves during the pandemic. We haven’t seen the Warden since the beginning of the pandemic, and no ranking officer comes back to tell us anything. The guards mostly just try to get off the line quickly. They act like they’re in danger being around us, but they’re the ones who go into the community and get exposed to the virus. We might have had a sign up with information about coronavirus at one point, but I don’t think I saw signs on each of the lines I was on. We try to get our information about the coronavirus when we watch the news – there are two 32-inch tvs in the day room.
Spears Decl. ¶¶ 29-30. But those detainees who were transferred into the A, B, and C blocks are
prohibited from going to the day room or watching television, leaving them with no “information
about coronavirus, how to protect ourselves, or what was going on in the world.” Rogers Decl.
27 See, e.g. Craig Haney, Infamous Punishment: The Psychological Effects of Isolation, 8 Nat’l Prison Project Journal 3 (1993); Stuart Grassian, Psychopathological Effects of Solitary Confinement, Am. J. of Psychiatry, 140 at 1450- 54 (1983); Peter Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature, in Michael Tonry (Ed.), Crime and Justice (2006) at 441-528; Hans Toch, Men in Crisis: Human Breakdowns in Prisons. Aldine Publishing Co. (1975) at 50-55; Jeffrey Metzner & Jamie Fellner, Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics, 38 J. of the Academy of Psychiatry and Law 104, 104 (2010), http://www.hrw.org/sites/default/files/related_material/Solitary%20Confinement%20and%20 Mental%20Illness%20in%20US%20Prisons.pdf.
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¶ 33; Williams Decl. ¶ 19. Demond Harris crystallizes the general attitude of his fellow detainees:
I think the jail staff is trying to create an atmosphere of fear around lockdown so that guys won’t report symptoms to avoid going on the line. They took away almost all of our privileges on lockdown, including commissary, access to hygiene products, mail, open access to phones, and tvs. Why else would they take all of our privileges away? If people on the line heard about that, they wouldn’t want to tell the nurse they were sick and they would be scared to go to lockdown. So they kept their symptoms quiet, and the jail staff let the virus spread throughout the jail. I think this is how the jail has kept their positive-case count down.
Harris Decl. ¶ 33. In sum, Defendants created and have now perpetuated an environment in which
the named Plaintiffs and all class members face grave risks to their health, and endure continual
violations of their constitutional rights.
J. Expert Medical Opinion Demonstrates that Release from Detention is the Only Remedial Measure that Will Protect Medically Vulnerable Detainees.
The overwhelming medical and scientific consensus is that social distancing of at least six
feet is required to reasonably reduce the risk of transmission of the novel coronavirus. Hassig
Decl. ¶ 3; Lauring Decl ¶ 42; Rottnek Decl. ¶ 13. As Dr. Carlos Franco-Paredes explains, measures
short of social distancing like the ones recommended by the CDC are important but “insufficient
to interrupt the transmission of COVID-19 infection, unless social distancing is also meaningfully
implemented.”28 Not only is this the judgment of the prominent local and national medical
experts,29 but the Centers for Disease Control and Prevention (CDC),30 the American Medical
28 See Ex. 5 to Compl., Declaration of Dr. Carlos Franco-Paredes at 1, Cameron v. Bouchard, No. 20-cv-10949 (E.D. Mich. April 17, 2020), ECF No. 1-6 (“Paredes Report”); see also Order at 6, Wilson v. Williams, No. 20-cv-794 (N.D. Ohio Apr. 22, 2020), ECF No. 22 (“Respondents say that soap and disinfectant are readily available . . . However, these supplies can only be so useful in an environment where the inmates are constantly in close proximity to each other.”). 29 See Meyer Decl. ¶ 9 (“When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing.”); id. ¶ 23 (“As infectious diseases spread in the community, public health demands mitigation strategies, which involves social distancing and closing other communal spaces . . . to protect those most vulnerable to the disease.”); see also Ex. 13 to Compl., Declaration of Robert B. Greifinger ¶¶ 4, 8, Dawson v. Asher, Case No. 2:20-cv-00409-JLR-MAT (D. Or., filed Mar. 16, 2020), ECF No. 4; Ex. 8 to Compl., Declaration of Elizabeth Y. Chiao ¶ 12, Russell v. Harris Cty., No. 4:19-cv-00226 (S.D. Tex. Mar. 27, 2020), ECF No. 32-2. 30 Ctrs. for Disease Control & Prevention, Social Distancing, Quarantine, and Isolation, (Apr. 4, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html; Ctrs. for Diseases Control
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Association,31 the American Red Cross,32 and the Florida Department of Health33 have all concluded that social distancing is essential to preventing transmission of the deadly infection.
Because social distancing at the jail is impossible, see Hassig Decl. ¶ 9; Rottnek Decl. ¶ 16, medical experts have concluded, Hassig Decl. ¶ 10; Lauring Decl. ¶¶ 36–37; Paredes Decl. Executive Summary; Stern Decl. ¶¶ 12–13, the only way to protect the subclass from the imminent threat of death or life-threatening illness is to order them removed from the jail.34 Medicallyvulnerable detainees should be prioritized, as they are at greatest risk of contracting and spreading COVID-19 and because their underlying morbidities make them highly susceptible to serious illness and death. Id. This risk is not only to other detainees; staff, medical professionals, and their communities and families are at increased risk of infection if they work in dangerous conditions. Rottnek Decl. ¶ 57. Nor should detainees be transferred to other facilities where there may be more space, as the transport process often “places both detainees and accompanying staff in potentially risky proximity,” and introduces the possibility of introducing infection into new facilities. Hassig Decl. ¶¶ 10, 11.
The Chief Justice of the Louisiana Supreme Court has likewise recognized the perils of not releasing medically vulnerable detainees, encouraging district court judges to release
& Prevention, How to Protect Yourself & Others (Apr. 13, 2020) (explaining the paramount importance of social distancing, even if taking other precautions such as a mask). 31 AMA, AHA, ANA: #StayHome to confront COVID-19, Am. Medical Ass’n (Mar. 24, 2020), https://www.amaassn.org/press-center/press-releases/ama-aha-ana-stayhome-confront-covid-19. 32 Coronavirus – What Social Distancing Means, Am. Red Cross (Apr. 14, 2020), https://www.redcross.org/aboutus/news-and-events/news/2020/coronavirus-what-social-distancing-means.html. 33 How Do I Prevent and Prepare For COVID-19?, Fla. Dep’t of Health (Apr. 24, 2020), https://floridahealthcovid19.gov/prevention/. 34 Malam v. Adducci, __ F. Supp. 3d __, 2020 WL 1672662 (E.D. Mich. Apr. 5, 2020) at *4 (“[T]he public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety” (citing declaration by infectious disease epidemiologist Joseph Amon)); see also Thakker v. Doll, __ F. Supp. __, 2020 WL 1671563, at *9 (M.D. Pa. Mar. 31, 2020).
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detained persons because a coronavirus outbreak in jails and prisons would be “catastrophic for jail staff, the families of jail staff, and inmates.”35
ARGUMENT Plaintiffs and the class members they seek to represent are at imminent risk of death or serious injury. If this litigation is decided in the ordinary course, many class members, particularly the subclass of medically vulnerable detainees (“Medically Vulnerable Subclass), will become seriously ill and die before final judgment.36 Numerous others will suffer severe pain or organ damage. In order to protect the safety and lives of the subclass members, the Court should issue a temporary restraining order requiring their release from the unsanitary, infectious jail environment because there are no measures that Defendants can take within the facility to protect these detainees from an unconstitutionally high risk of death or serious bodily harm. Their lives depend on how quickly they are released—subject to reasonable conditions—to preserve the status quo, namely the health and life of subclass members. This relief is appropriate either through 28 U.S.C. § 2241 or, in the alternative, through 42 U.S.C. § 1983. Under Rule 65, “[a] plaintiff seeking a preliminary injunction 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 that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Lake Charles Diesel, Inc. v. General Motors Corp, 328 F.3d 192, 195 (5th Cir. 2003). The Court likewise has
35 See Chief Justice Bernette Joshua Johnson, Letter to the Louisiana District Judges (Apr. 2, 2020) https://www.lasc.org/COVID19/2020-04-02-LASC-ChiefLetterReCOVID-19andjailpopulation.pdf; see also Javonti Thomas, Louisiana Chief Justice calls for reduced jail populations to combat COVID-19 outbreak, KALB (Apr. 3, 2020) https://www.kalb.com/content/news/Louisiana-Chief-Justice-calls-for-reduced-jail-populations- to-avoidCOVID-19-outbreak--569348241.html. 36 Plaintiffs are contemporaneously filing a motion for certification of a class of all persons detained at EBPP, as well as a (i) subclass of medically vulnerable detainees who are the subject of this motion; (ii) subclass of pretrial individuals; (iii) subclass of post-conviction individuals.
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independent authority under habeas corpus, 28 U.S.C. § 2241, to order immediate release from unconstitutional confinement. See infra Section (IV).
As explained below, the Medically-Vulnerable Subclass members satisfy each of these Rule 65 elements and that release pursuant to habeas and this Court’s inherent equitable powers is mandated. There is voluminous evidence in the record showing that the Subclass members are particularly vulnerable to severe illness and death, through their likely exposure to the surging COVID-19 virus. The evidence demonstrating the serious risk they face to their health, including a risk of death, constitutes the clearest form of irreparable harm that the law recognizes. There is no remediation to the risk medically vulnerable subclass members face that Defendants could take, short of release.
Subclass members are likely to succeed on their due process and habeas claims because subjecting pretrial detainees to such an unreasonable health risk constitutes impermissible punishment under the Fourteenth Amendment, particularly as the Defendants can safeguard any legitimate government interest in preventing flight through reasonable alternatives to detention. Further, Defendants are acting unconstitutionally under the Eighth Amendment “deliberate indifference” standard applicable to post-conviction subclass members as their failure to implement the basic steps recommended by health experts, the CDC, and Governor John Bel Edwards37 when they are well aware of the extreme risks posed by this virus constitutes deliberate indifference. I. SUBCLASS MEMBERS WILL SUFFER IRREPARABLE HARM IN THE
ABSENCE OF A TRO MANDATING THEIR RELEASE.
37 See Executive Order, (May 15, 2020), https://gov.louisiana.gov/assets/Proclamations/2020/58-JBE-2020.pdf.
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“Perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered.” Monumental Task Comm., Inc. v. Foxx, 157 F. Supp. 3d 573, 582-83 (E.D. La. 2016), aff’d sub nom. Monumental Task Comm., Inc. v. Chao, 678 F. App’x 250 (5th Cir. 2017) (quotations omitted). The Fifth Circuit requires only a “substantial threat” of irreparable injury, DSC Commc’ns Corp. v. DGI Techs., Inc., 81 F.3d 597, 600 (5th Cir.1996), which is defined as “harm for which there is no adequate remedy at law,” such as monetary damages. Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579, 585 (5th Cir. 2013). A court “need not await a tragic event” to afford injunctive relief. Helling v. McKinney, 509 U.S. 25, 33 (1993) (noting “It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.”).
Plaintiffs allege injuries that are irreparable and, therefore, are not suitable for resolution in the ordinary course of litigation. There is no injury that is more irreparable than death, and Plaintiffs face a heightened risk of contracting a deadly virus due to Defendants’ actions. See In re Bahadur, No. EP-19-CV-00357-DCG, 2020 U.S. Dist. LEXIS 33455, at *14 (W.D. Tex. Feb. 27, 2020); Chambers v. Coventry Health Care of Louisiana, Inc., 318 F. Supp. 2d 382 (E.D. La. 2004) (irreparable harm found where late detection of cancer could lead to death). This risk is neither speculative nor attenuated: in a prison in Oakdale, Louisiana where COVID-19 has been allowed to spread, five people have died in less than a week.38 With 93 confirmed COVID-19 cases in the Jail39, the risk of death and physical devastation to subclass members is an absolute certainty of
38 ACLU Sues Louisiana Prison After 5 COVID-19 Deaths Reported, Democracy Now (Apr. 7, 2020), https://www.democracynow.org/2020/4/7/headlines/aclu_sues_louisiana_prison_after_5_covid_19_deaths_reported. 39 See Ex. 1 to Compl., EBRPP COVID-19 Statistics (May 14, 2020).
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the kind that cries for judicial relief. Even short of death, Plaintiffs are at grave risk of contracting severe and potentially lifelong
medical conditions – including neurologic damage and the loss of respiratory capacity—and may require extensive rehabilitation or profound reconditioning—which also establishes irreparable harm. See, e.g., Vazquez-Berrera v. Wolf, No. 20-cv-1241, 2020 WL 1904497, at *6 (S.D. Tex. Apr. 17, 2020) (“Given Plaintiffs’ vulnerabilities to serious illness if infected with the coronavirus and the serious and imminent risk of infection if they remain in immigration detention, Plaintiffs have shown irreparable harm.”); see also Unknown Parties v. Johnson, No. CV- 15-00250-TUC (DCBx), 2016 WL 8188563, at *15 (D. Ariz. No. 18, 2016), aff’d sub nom Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017) (irreparable harm where evidence demonstrated “medical risks associated with . . . being exposed to communicable diseases”).
The expert evidence in this case demonstrate that short of release, there are no sufficient measures—preventative or palliative—that Defendants can implement to protect Subclass Members from the unprecedented threats to the safety of these individuals—and those who come in contact with them, including staff, healthcare providers, and local populations. Hassig Decl. ¶¶ 9, 10; Rottnek Dec. ¶¶ 54, 57. Release is the only option. See also Lauring Decl. ¶¶41-43 (opining that until a vaccine is developed, “For the medically vulnerable . . . immediate release is the only option. The detainees’ inability to practice physical distancing at all times, coupled with the Jail’s failure to properly screen, identify, and quarantine infection, and their widespread neglect of medical needs creates a meaningfully higher risk of death for these individuals.”). Recognizing these grave risks, courts across the country have granted immediate relief to people seeking to avoid medically-unsafe confinement.40
40 See Zhang v. Barr, No. ED CV 20-00331-AB, 2020 WL 1502607, at *6 (C.D. Cal. Mar. 27, 2020) (granting an immediate bond hearing in light of the “global pandemic by which delay in determining Petitioner’s release exposes
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Moreover, Plaintiffs seek relief from violations of their constitutional rights. In the context of a preliminary injunction, the loss of a constitutional right “unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). II. SUBCLASS MEMBERS ARE LIKELY TO SUCCEED ON THE MERITS OF
THEIR CLAIMS The government has a constitutional duty to protect those it detains from “a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). This right arises under the and under the Fourteenth Amendment’s Due Process Clause pre-conviction, see City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983), and under the Eighth Amendment post-conviction, see id.; Estelle v. Gamble, 429 U.S. 97, 104 (1976). Subclass members are likely to succeed on their claims because Defendants are subjecting detainees to an unreasonable level of risk in violation of pretrial detainees’ Fourteenth Amendment rights and are otherwise deliberately indifferent to the substantial risk that Medically Vulnerable Subclass members will contract COVID-19 within the current conditions at the Jail, in violation of the Eighth Amendment. It is a fundamental constitutional proposition that, when the State holds individuals in its custody, the state officials have an obligation to provide for their basic human needs, including medical care and reasonable safety. DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 199–200 (1989). The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs— e.g., food, clothing, shelter, medical care, and reasonable safety—it
him to unnecessary risk”); United States v. Garlock, No. 18-Cr-00418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (ordering, sua sponte, extension of convicted defendant’s surrender date and noting “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided”); Castillo v. Barr, __ F. Supp. 3d __, CV 20-00605 TJH (AFMx), 2020 WL 1502864, at *5 (C.D. Cal. Mar. 27, 2020) (noting “the risk of infection in immigration detention facilities – and jails – is particularly high”); Cameron v. Bouchard, No. 20-cv-10949, 2020 WL 1929876 (E.D. Mich. Apr. 17, 2020) (emergency hearing scheduled for medically-vulnerable subclass).
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transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. Id. (citations omitted); accord Hare v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996); see also Youngberg v. Romeo, 457 U.S. 307, 324 (1982) (the state has an “unquestioned duty” to provide adequate medical care for detained persons). In the Fifth Circuit, “Pretrial detainees and convicted prisoners, however, look to different constitutional provisions for their respective rights to basic needs such as medical care and safety.” Hare, 74 F.3d at 639. For pretrial Subclass members, their claims must be evaluated under the Fourteenth Amendment’s Due Process Clause, see City of Revere, 463 U.S. at 244, which prohibits conditions that are unreasonably excessive to a legitimate government purpose such that they amount to punishment. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Subclass members who are post-conviction are protected by the Eighth Amendment, which prohibits “deliberate indifference to inmate health or safety.” Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir. 1999). Defendants violate both standards. Defendants’ actions demonstrate that they unable to abate the probability of widespread COVID-19 infection and the resultant high risk of severe illness or death. Defendants are thus violating their constitutional duties to all subclass members.
A. Subclass Members Who Are Pretrial Are Subject to Unreasonable, Punitive Conditions of Confinement in Violation of the Fourteenth Amendment. Because those Subclass Members who are pretrial have never been adjudicated to be guilty
of a crime, they enjoy substantive due process protections stemming from the Fourteenth Amendment, which accordingly protects pretrial detainees from any punishment, including
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general conditions of confinement that become unreasonably punitive. Bell v. Wolfish, 441 U.S. 520, 539 (1979); Hare, 135 F.3d at 169.
A condition of detention amounts to impermissible punishment when “it is not reasonably related to a legitimate goal,” if it is “excessive” in relation to a legitimate goal,” or if it is otherwise “arbitrary or purposeless”—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.” Wolfish, 441 U.S. at 539; Hare, 74 F.3d at 640. To make this showing, a person in detention need not demonstrate the defendant’s subjective or malicious intent to punish. Shepherd v. Dallas Cty., 591 F.3d 445, 452 (5th Cir. 2009). “[E]ven where a State may not want to subject a detainee to inhumane conditions of confinement or abusive jail practices, its intent to do so is nevertheless presumed when it incarcerates the detainee in the face of such known conditions and practices.” Hare, 74 F.3d at 644. “A pervasive pattern of serious deficiencies” that subjects an individual in detention to the risk of serious injury or death likewise amounts to punishment. Shepherd, 591 F.3d at 454.
In Shepherd, the Fifth Circuit found that a “jail’s evaluation, monitoring, and treatment of inmates with chronic illness was [...] grossly inadequate due to poor or non-existent procedures and understaffing of guards and medical personnel,” that “serious injury and death were the inevitable results of the jail's gross inattention to the needs of inmates with chronic illness,” and that this amounted to punishment. Shepherd, 591 F.3d at 454. Similarly, in Duvall, the Fifth Circuit affirmed a jury’s finding that Dallas County had an unconstitutionally punitive custom or policy when it allowed infections of Methicillin-Resistant Staphylococcus Aureus (MRSA) to be present in a jail, and failed to take necessary measures for eradication. Duvall v. Dallas Cty., Tex., 631 F.3d 203, 208-09 (5th Cir. 2011).
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Because pretrial detainees cannot be punished for a crime for which they have not been adjudged guilty, the only legitimate government interest in imprisoning pretrial detainees is prevent flight risk, and to assure appearance at trial. Yet, punishment is what these pretrial detainees are being given in the cramped, unsanitary, and irremediable conditions in the East Baton Rouge jail. These conditions impose a demonstrably substantial risk of contracting COVID-19. Once they are exposed, they are all vulnerable to severe illness or death, either because of their age, or because they have underlying medical conditions. Continued detention of Plaintiffs is an imminent threat to their lives that is clearly excessive in relation to the purported government goal, and therefore amounts to punishment. Such exposure to lethal risks becomes even more unreasonable—downright arbitrary and purposeless—when the government interest can be accomplished through innumerable non-carceral alternatives to detention.
There is compelling evidence that alternatives to monetary release conditions are more effective in ensuring appearance for trial and reduce the risk of re-arrest before trial. A study in Colorado found phone calls to people dates a few days before their court dates brought failure-toappears down to 8 percent from previous rate of 21 percent.41 Multnomah County, Oregon reduced its failure-to-appear rate by 31 percent when it started using automated court date reminders.42 The City of Clanton, Alabama, adopted a new policy of releasing all arrestees on a $500 unsecured bond, see Jones ex rel. Varden, No. 2:15cv34-MHT, 2015 WL 5387219 (M.D. Ala. Sept. 14, 2015), as did the City of Velda City and the City of St. Ann.43
41 See e.g., Oregon Knowledge Bank, http://okb.oregon.gov/portfolio-item/auto-notification/ for more examples and studies (last visited May 26, 2020); see also Lael Henterly, When Bail Is Set, the Rich Walk and the Poor Go to Jail Seattle Weekly Times, (Aug. 23, 2016), http://www.seattleweekly.com/news/when-bail-is-set-the-rich-walk-and-thepoor-go-to-jail/. 42 Id. 43 See e.g., Pierce v. City of Velda City, 4:15-CV-570-HEA, 2015 WL 10013006 (E.D. Mo. June 3, 2015); Powell v. City of St. Ann, No. 4:15-cv-840-RWS (E.D. Mo. 2015).
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Other states have voluntarily made changes to avoid unnecessary pretrial detention. For example, in Washington, D.C., arrestees are released on recognizance with appropriate nonfinancial conditions.44 See D.C. Code § 23-1321. In July 2017, the Chief Judge of the Circuit Court for Cook County, Illinois, issued an order prohibiting judges from using money bail to detain arrestees, and requiring any judge who imposes a secured financial condition to make a finding on the record that the individual “has the present ability to pay” the sum.45 90% appeared for all scheduled court dates in the subsequent months following the Order.46 Judges of the highest court in Maryland issued a similar Order, prohibiting Judges from requiring secured financial conditions of release that result in detention due to inability to pay.47 And a year ago, in January 2017, New Jersey virtually eliminated the use of money bail. Since then, the detained pretrial population has dropped by 34%.48
Further, it is well documented that pretrial incarceration harms individuals’ lives far beyond their loss of liberty and the conditions they face in jails, outside of a global pandemic like COVID-19. Collateral consequences of pretrial incarceration include:
● Loss of income and wages when individuals lose their jobs because of their incarceration;

44 The federal government and the District of Columbia both removed money bail virtually entirely from their court systems after the Department of Justice, Congress, and an overwhelming consensus of legal experts concluded that the old system of post-arrest detention based on money bail was fundamentally unfair and unconstitutional. Federal law now explicitly forbids obtaining post-arrest detention through the use of money bail that a person cannot meet. See 18 U.S.C. § 3142(c)(2) (“The judicial officer may not impose a financial condition that results in the pretrial detention of the person.”).

45

The

Order

is

available

at:

http://www.cookcountycourt.org/Manage/DivisionOrders/ViewDivisionOrder/tabid/298/ArticleId/2562/GENERAL-

ORDER-NO-18-8A-Procedures-for-Bail-Hearings-and-Pretrial-Release.aspx.

46 Mean Crepeau, Cook County Jail Drops Below 6,000 Inmates to Lowest Level in Decades, Chi. Trib., (Dec. 22, 2017) http://www.chicagotribune.com/news/local/breaking/ct-met-cook-county-jail-under-6000-inmates-20171221story.html.

47 The Maryland Court of Appeals’ Order is available at http://mdcourts.gov/rules/rodocs/ro192.pdf.

48 Brentin Mock, How New Jersey in Leading the Post-Bail Revolution, CityLab, (Nov. 2, 2017) https://www.citylab.com/equity/2017/11/how-new-jersey-is-leading-the-post-bail-revolution/544691/.

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● Loss of housing and missed payments on bills because individuals cannot work or pay bills while incarcerated; ● Loss of physical and/or legal custody of children; ● An increase of mental illness symptoms because conditions in jail can put an individual under a lot of stress and restrict access to needed medications, exacerbating or even causing mental illness; and ● Increased risk of assault, including sexual assault especially in the first few days of incarceration.49 Compounding these deleterious health effects – and separating individuals from loved ones and support networks – onto the risk of imminent infection from a lethal disease crosses the threshold from unconstitutionally unreasonable to morally cruel. B. Under a Deliberate Indifference Standard, Post-Conviction Subclass Members’
Eighth Amendment Rights Are Being Violated. To demonstrate a violation of the Eighth Amendment, convicted persons must show both an objectively substantial risk of serious harm and that prison officials subjectively “acted with deliberate indifference to inmate health or safety” towards the hazardous condition in question. Palmer, 193 F.3d at 352. Courts find deliberate indifference when a detained person can show: (1) “that he is incarcerated under conditions posing a substantial risk of serious harm,” and (2) “that the official was deliberately indifferent to inmate health or safety.” Hare, 74 F.3d at 648 (citing Farmer v. Brennan, 511 U.S. 825 (1994)). A “condition of confinement that is sure or very likely to cause serious illness and needless suffering” to someone detained – which includes “exposure of inmates to a serious, communicable disease”—is precisely the type of serious harm that the Eighth Amendment protects against. Helling, 509 U.S. at 33 (prison officials must protect against “exposure of inmates to a serious
49 Melissa Neal, Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail, Justice Policy Institute (2012), http://www.justicepolicy.org/uploads/justicepolicy/documents/bailfail.pdf.
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communicable disease); Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation to protect [forcibly confined] inmates from infectious disease.”); see also Farmer, 511 U.S. at 833 (“[H]aving stripped [prisoners] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.”); Johnson v. Epps, 479 Fed. App’x 583, 59192 (5th Cir. 2012) (holding that a policy that forced inmates to use unsterilized barber clippers constituted deliberate indifference).
1. Plaintiffs are objectively at a substantial risk of serious harm COVID-19 is the quintessential “serious” and “communicable disease” from which the Constitution requires incarcerated people be protected. Helling, 509 U.S. 25 at 33-34. To date, this disease has no preventative cure or effective treatment. It can cause severe pain, and in even mild and moderate cases, it can feel like “drowning in [one’s] own blood,” with even young people in good health feeling like “they’ve been hit by a truck.” See Compl. ¶ 35. It has ushered nationwide shutdowns and an unprecedented toll of death and destruction, particularly among medically vulnerable populations. There can be no dispute that the risk of contracting COVID-19 is objectively unacceptable, particularly for medically vulnerable individuals.
2. Defendants have acted and are continuing to act with subjective indifference towards Plaintiffs’ substantial risk of harm.
Under the second prong of the deliberate indifference standard, the Fifth Circuit asks whether the official “knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Jones v. Texas Dep't of Criminal Justice, 880 F.3d 756, 759 (5th Cir. 2018). A detained person “does not need to show that death or serious illness has yet occurred to obtain relief. He must show that the conditions pose a substantial risk of harm.” Gates v. Cook, 376 F.3d 323, 339 (5th Cir. 2004) (emphasis added). In Gates, where
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individuals on Death Row challenged overheated temperatures as violating the Eighth Amendment, the Fifth Circuit upheld a finding that the plaintiffs faced a substantial risk of serious harm based on expert testimony, such as that produced in this case, substantiating a possibility of death. Cook, 376 F.3d at 339.
Even under the Eighth Amendment’s standard that applies to inmates who have been convicted, immediate injunctive relief is appropriate. That is because Defendants have certainly known of and disregarded an excessive risk to detainee health or safety. Wilson v. Seiter, 501 U.S. 294, 303 (1991); Honshul v. Foti, No. 94-30723, 1995 WL 153425, at *2-3 (5th Cir. Mar. 30, 1995).
With respect to an impending infectious disease like COVID-19, deliberate indifference is satisfied when corrections officials “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” even when “the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33 (holding that a prisoner “states a cause of action . . . by alleging that [corrections officials] have, with deliberate indifference, exposed him to conditions that pose an unreasonable risk of serious damage to future health”); see also Hope v. Pelzer, 536 U.S. 730, 738 (2002) (court “may infer the existence of [deliberate indifference] from the fact that the risk of harm is obvious” (citing Farmer, 511 U.S. at 842)). See also Gates v. Collier, 501 F.2d 1291, 1300 (5th Cir. 1974) (prison conditions, including the fact that “inmates with serious contagious diseases are allowed to mingle with the general prison population,” violate the Eighth Amendment).
This Court need not “await a tragic event” to find that Defendants are maintaining unconstitutional conditions of confinement amid a global pandemic. See Helling, 509 U.S. at 33. So long as the risk of serious harm is “likely,” as it is here, the Eighth Amendment is violated, even if “the complaining inmate shows no serious current symptoms,” and “the possible infection
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might not affect all of those exposed.” Id. Here, amid this global pandemic which has been front page news every day for months, it
cannot be seriously disputed that any government officials, including Defendants, are unaware of the risks posed by the coronavirus.50 Through government orders,51 CDC guidance aimed at jails,52 and nationwide publications,53 Defendants have been made well aware of the risks to incarcerated people. The Sheriff’s own communications and announcements emphasize this awareness.54 Similarly, the widespread public discussion regarding the heightened risk to medically vulnerable people makes abundantly clear that Defendants are aware of the mortal peril that Jail conditions pose to such individuals.
In addition, the overwhelming medical and scientific consensus is that social distancing of at least six feet is required to reasonably reduce the risk of transmission of the novel coronavirus.

50 This is particularly true given the death from coronavirus of a deputy sheriff in the parish, Sergeant Gregory Warren,

in April of this year. See Lea Skene, East Baton Rouge Deputy — 'A Dedicated Public Servant' — Dies from

Coronavirus,

Sheriff

Says,

The

Advocate

(Apr.

5,

2020),

https://www.theadvocate.com/baton_rouge/news/coronavirus/article_27ecdcac-7759-11ea-9ab3-

e72613b104ed.html.

51 See Executive Order 2020-27 (Mar. 13, 2020), https://gov.louisiana.gov/assets/ExecutiveOrders/27-JBE-2020COVID-19.pdf; Executive Order (May 15, 2020), https://gov.louisiana.gov/assets/Proclamations/2020/58-JBE2020.pdf.

52 Ctrs. for Disease Control & Prevention, Correctional and Detention Facilities, (May 26, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/index.html.

53 See David Mills & Emily Galvin-Almanza, As Many as 100,000 Incarcerated People in Our Prisons Will Die from the Coronavirus, Unless the US Acts Now, Bus. Insider (Apr. 2, 2020), https://www.businessinsider.com/failure-torelease-prisoners-is-condemning-thousands-to-death-2020-4; Anna Flagg & Joseph Neff, Why Jails Are So Important in the Fight Against Coronavirus, N.Y. Times (Mar. 31, 2020), https://nyti.ms/3aIBHjv; Timothy Williams et al., ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars, N.Y. Times (Mar. 30, 2020), https://nyti.ms/2Jmnf4z.

54 Lea Skene and Jacqueline DeRoertis, East Baton Rouge Sheriff: It’s Only a Matter of Time Before Coronavirus

Arrives

in

Jail,

The

Advocate

(Mar.

17,

2020),

https://www.theadvocate.com/baton_rouge/news/coronavirus/article_be4301c6-6887-11ea-b794-

ab2c5dcccad8.html.

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The CDC,55 the American Medical Association,56 the American Red Cross,57 and the Louisiana Department of Health58 have all concluded that social distancing is essential to preventing
transmission of the deadly infection. The CDC itself describes social distancing as “a cornerstone
of reducing transmission of respiratory diseases such as COVID-19,” as “[t]he best way to prevent illness,” and as “extra important” for vulnerable individuals.59 Defendant Gautreaux concedes this
point, imploring his employees to “please take all necessary precautions and use all available
equipment and resources to protect themselves not only at work, but any time they must be out in the community.”60
Officials’ indifference to the significant risk of permanent damage and death to the
Medically Vulnerable Subclass is even more unacceptable. It is well-documented that these
individuals face a risk of death or permanent organ damage far in excess of the rest of the
population. See Rottnek Decl. ¶ 61; Hassig Decl. ¶ 4. This risk is evident in the COVID-19 death
toll to date—for instance, in New York state, almost 90% of reported COVID-19 deaths involved at least one comorbidity, according to the state’s department of health.61 Defendants’ refusal or
55 Ctrs. for Disease Control & Prevention, Social Distancing, Quarantine, and Isolation (Apr. 4, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html; Ctrs. for Disease Control & Prevention, How to Protect Yourself & Others (Apr. 13, 2020) (explaining the paramount importance of social distancing, even if one is already taking other precautions such as a mask). 56 AMA, AHA, ANA: #StayHome to confront COVID-19, Am. Medical Ass’n (Mar. 24, 2020), https://www.amaassn.org/press-center/press-releases/ama-aha-ana-stayhome-confront-covid-19. 57 Coronavirus – What Social Distancing Means, Am. Red Cross (Apr. 14, 2020), https://www.redcross.org/aboutus/news-and-events/news/2020/coronavirus-what-social-distancing-means.html. 58 Defending Against Covid-19, La. Dep’t of Health, http://ldh.la.gov/index.cfm/page/3938#spread (last visited May 26, 2020). 59 See Ex. 3 to Compl., Ctrs. for 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/2019-ncov/community/correction-detention/guidancecorrectional-detention.html. 60 Lea Skene, East Baton Rouge Deputy — 'A Dedicated Public Servant' — Dies from Coronavirus, Sheriff Says, The Advocate (Apr. 5, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_27ecdcac-7759-11ea9ab3-e72613b104ed.html. 61 NYSDOH COVID-19 Tracker, N.Y. State Dep’t of Health, https://covid19tracker.health.ny.gov/ (last visited May
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inability to provide circumstances that would limit the subclass’s exposure to the virus constitutes deliberate indifference. At this point, only release will sufficiently protect the medically vulnerable from their very real risk of death. See, e.g., Cameron v. Bouchard, -- F. Supp.3d --, 2020 WL 2569868, at *24 (E.D. Mich. May 21, 2020) (“Considering the weight of the public health evidence demonstrating the medically-vulnerable population’s unique, specific, and lifethreatening susceptibility to COVID-19—paired with the communal nature of jail facilities, the Court finds that home confinement or early release is the only reasonable response to this unprecedented and deadly pandemic.”).
While the risk is great to everyone in the Jail, the members of this subclass have conditions rendering them exceptionally vulnerable to death or serious harm if exposed to COVID-19. As a result, there is no practicable way to ensure that they can avoid infection and no practicable way to ensure that, if infected, they receive prompt and adequate medical treatment within the Jail. Hassig Decl. ¶ 4. Serious illness is substantially likely, and older people and those with underlying medical conditions, such as lung disease, heart disease, or diabetes, are more likely to develop serious illnesses. Id. Therefore, their continued detention is a grave risk to their lives and violates the Constitution.
In the face of this awareness, Defendants’ ongoing confinement of Plaintiffs is deliberately indifferent to the risks caused by this virus and must be remedied. “Failing to take reasonable measures to abate [risk]” demonstrates disregard of such risk. Farmer, 511 U.S. at 847. Accordingly, Plaintiffs have shown that they are likely to succeed on the merits of their claims. III. THE PUBLIC INTEREST AND BALANCE OF EQUITIES WEIGH HEAVILY IN
PLAINTIFFS’ FAVOR.
26, 2020).
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Where, as here, the government is a party to the case, the third and fourth injunction factors—the balance of the equities and the public interest—merge. Nken v. Holder, 556 U.S. 418, 435 (2009); El Paso Cty., Texas v. Trump, 407 F. Supp. 3d 655, 665 (W.D. Tex. 2019). As an initial matter, the public interest is served by the protection of constitutional rights. See Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th Cir. 1996); Cohen v. Coahoma Co., 805 F. Supp. 398, 408 (N.D. Miss. 1992).
The balance of equities and the public interest also favor release of the Medically Vulnerable Subclass members who, as a practical matter, cannot be constitutionally held in the Jail at this time. Release of these individuals will conserve the Jail’s resources and reduce the demands on Jail staff, including guards and nurses. Further, releasing medically vulnerable individuals is the only way to eliminate the unacceptable risk to their health and the concomitant demand on public health resources—inside the jail and in the broader community —that will result when they become infected.
A worsened outbreak at the Jail has the potential to create a “tinderbox” scenario that drains the Baton Rouge metropolitan area of limited medical resources, including intensive care unit beds and ventilators.62 In Louisiana, the COVID-19 outbreak has already resulted in unprecedented public health demands that have strained the local health care system.63
Recently, the Western District of Louisiana noted in recommending release of 13 medically vulnerable individuals from ICE detention, that “public health and safety are served best by rapidly decreasing the number of individuals detained in confined, unsafe conditions.” Dada v. Witte, No.
62 New Model Shows COVID-19 Death Toll is 100,000 Higher Than Current Projections, ACLU.org (Apr. 22, 2020), https://www.aclu.org/press-releases/new-model-shows-covid-19-death-toll-100000-higher-current-projections. 63 See Ryan Whirty, As COVID-19 cases increase, La. hospitals take care to ensure they remain resourced, The Louisiana Weekly (Apr. 20, 2020), http://www.louisianaweekly.com/as-covid-19-cases-increase-la-hospitals-takecare-to-ensure-they-remain-resourced/.
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1:20-cv-00458-DDD-JPM at *27 (Report and Recommendation) (adopted May 22, 2020). And, as the Western District of Texas explained in in Vazquez Barrera, “an outbreak among the . . . detainee population will inevitably spread through the surrounding community, as MPC staff members, who live outside the detention facility, will be exposed to sick detainees . . . [and] will put additional strain on hospitals and health care resources in the community.” 2020 WL 1904497, at *7. United States v. Raihan, No. 20-cr-68-BMC- JO, Proc. at 10:12-19 (E.D.N.Y. Mar. 12, 2020), ECF No. 20 (“[t]he more people we crowd into that facility, the more we’re increasing the risk to the community”).
The consensus of public health expertise is in accord. See supra Section J. This immediate, concrete interest in health and life must, in any humane system of justice, outweigh a state’s abstract penological interest in continued imprisonment of human beings. IV. IMMEDIATE RELEASE IS OF MEDICALLY VULNERABLE SUBCLASS
MEMBERS IS THE ONLY EFFECTIVE REMEDY FOR PLAINTIFFS’ UNLAWFUL DETENTION, WHICH THE COURT HAS AMPLE AUTHORITY TO ORDER. The Court has ample authority under 28 U.S.C. § 2241 and independently under Rule 65 to issue the release of detained persons—a remedy that has been ordered by numerous courts across the country in recent weeks. Habeas invests in federal courts broad, equitable authority to “dispose of the matter as law and justice require,” 28 U.S.C. § 2243, as the “very nature of the writ demands that it be administered with the initiative and flexibility.” Harris v. Nelson, 394 U.S. 286, 292 (1969). While it is clear in this Circuit that habeas authorizes challenges to the fact or duration of detention, there is more ambiguity about whether habeas – authorizes challenges to conditions of
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confinement.64 See Poree v. Collins, 866 F.3d 235, 244 (5th Cir. 2017) (observing that “the Supreme Court has not foreclosed” habeas challenges for conditions claims and “declin[ing] to address whether habeas is available only for fact or duration claims.”). In any event, this habeas petition does not challenge conditions of confinement in the way this purported distinction imagines. By this motion, Medically Vulnerable Subclass members are not seeking judicial intervention in order to alleviate harsh conditions; it is precisely because there is no judicial possibility of remediating their unconstitutional confinement that they are challenging the very fact of their confinement. Vazquez-Berrera, 2020 WL 1904497, at *4 (“The mere fact that Plaintiffs’ constitutional challenge requires discussion of conditions in immigration detention does not necessarily bar such a challenge in a habeas petition.”); see also Dada v. Witte, No. 1:20-CV00458, ECF No. 17 at 9 (W.D. La. Apr. 30, 2020) (Report and Recommendation) (explaining that “the remedy for conditions claims is generally corrective. The remedy for fact claims, however, generally terminates the detention altogether, or alters it such that a new form of custody or control is imposed” and recommending release of 13 petitioners under § 2241) adopted, id., Dkt 24.
As such, they seek “relief from unlawful imprisonment or custody.” Pierre v. United States, 525 F.2d 933, 935-36 (5th Cir. 1976); see also Poree, 866 F.3d at 244 (petition seeking transfer to facility with less restrictive conditions “properly sounds in habeas.”). See also Malam, 2020 WL 1672662, at *3 (“where a petitioner claims no set of conditions would be sufficient to protect her constitutional rights, her claim should be construed as challenging the fact, not conditions, of her confinement and is therefore cognizable in habeas.”). Habeas confers “broad discretion in conditioning a judgment granting habeas relief . . . ‘as law and justice require’ ”.
64 Plaintiffs do seek, under Section 1983, an injunction mandating changes to conditions in the facility. For Medically Vulnerable Subclass members, however, because those conditions will not abate the acute risk they face, release pursuant to habeas is proper.
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Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (quoting 28 U.S.C § 2243). That authority includes an order of release, Boumediene v. Bush, 553 U.S. 723, 779 (2008), so as “to insure that miscarriages of justice . . . are surfaced and corrected.” Harris v. Nelson, 395 U.S. 286, 291 (1969).
Separately, under Rule 65, Section 1983 and a court’s inherent equitable authority to remedy unconstitutional government conduct, courts may issue “orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011); see also Duran v. Elrod, 713 F.2d 292, 297- 98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (affirming order releasing low-bond individuals in pretrial detention as necessary to reach a population cap); Mobile Cty. Jail Inmates v. Purvis, 581 F. Supp. 222, 224-26 (S.D. Ala. 1984) (exercising remedial powers to order a prison’s population reduced to alleviate unconstitutional conditions.) V. THE COURT SHOULD NOT REQUIRE PLAINTIFFS TO PROVIDE SECURITY
PRIOR TO ISSUING A TEMPORARY RESTRAINING ORDER. Courts have discretion to waive the Rule 65(c) requirement that the movant for a temporary restraining order provide security. “The Fifth Circuit has acknowledged that the amount of the security is within the discretion of the district court, who can elect to impose no security at all.” New Orleans Home for Incurables Inc. v. Greenstein, 911 F. Supp 386, 412-13 (E.D. LA 2012) citing City of Atlanta v. Metropolitan Atlanta Rapid Transit Authority, 636 F.2d 1084, 1094 (5th Cir. Unit B Feb. 13, 1981). District courts in this circuit routinely exercise this discretion to require no security in cases brought by indigent or incarcerated people. See, e.g., Schultz v. Alabama, 330 F. Supp. 3d 1344, 1376 (N.D. Ala. 2018) (county prisoners); Campos v. I.N.S., 70 F. Supp. 2d 1296, 1310 (S.D. Fla. 1998) (indigent immigrants). This Court should do the same here.
CONCLUSION For these reasons, Plaintiffs ask this Court to issue a temporary restraining order and
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ordering the release of Medically Vulnerable Subclass members. Respectfully submitted, this 27th day of May, 2020.

/s/ David J. Utter David J. Utter (LA Bar No. 23236) William R. Claiborne (GA Bar No. 126363)* FAIR FIGHT INITIATIVE 410 East Bay Street Savannah, Georgia 31401 (912) 236-9559 Telephone (912) 236-1884 Facsimile david@fairfightinitative.org will@fairfightinitative.org Attorneys for Plaintiffs
*Pro Hac Vice motion pending

/s/Miriam R. Nemeth______________ Thomas B. Harvey (MBE #61734MO)* Miriam R. Nemeth (DC Bar No. 1028529)** Tiffany Yang (DC Bar No. 230836)* ADVANCEMENT PROJECT NATIONAL OFFICE 1220 L Street NW, Suite 850 Washington, DC 20005 (202) 728-9557 Telephone tharvey@advancementproject.org mnemeth@advancementproject.org tyang@advancementproject.org Attorneys for Plaintiffs

*Pro Hac Vice motions pending ** Lead Attorney for Plaintiffs

/s/ Lillian S. Hardy______________ Lillian S. Hardy (DC Bar No. 991282)* Hogan Lovells US LLP 555 Thirteenth Street NW Washington, DC 20004 (202) 637-5884 Telephone lillian.hardy@hoganlovells.com Attorneys for Plaintiffs

/s/ William P. Quigley William P. Quigley (LA Bar No. 00769) Loyola University New Orleans 7214 St. Charles Avenue Campus Box 902 New Orleans, LA 70117 Attorney for Plaintiffs

*Pro Hac Vice motion pending

/s/ Baher Azmy Baher Azmy (NY Bar No. 2860740)* Omar Farah (NY Bar No. 4641247)* Brittany Thomas (NY Bar No. 5683834)* CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 11201 (212) 614-6427 Telephone bazmy@ccrjustice.org ofarah@ccrjustice.org bthomas@ccrjustice.org Attorneys for Plaintiffs

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*Pro Hac Vice motions forthcoming CERTIFICATE OF SERVICE
I hereby certify that on May 27, 2020 at approximately at 11:00 a.m. (EST) a copy of the foregoing was sent to all parties via electronic mail upon the following:
Michael P. Schillage Assistant Parish Attorney Office of the East Baton Rouge Parish Attorney 222 St. Louis Street, Suite 902 Baton Rouge, LA 70803
MSchillage@brla.gov Catherine St. Pierre Erlingson Banks, PLLC One American Place 301 Main Street Suite 2110 Baton Rouge, LA 70801 cstpierre@erlingsonbanks.com /s/ David J. Utter David J. Utter
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EXHIBIT 1

Case 3:20-cv-00278-BAJ-SDJ Document 21-4 05/28/20 Page 2 of 7
DECLARATION OF CEDRIC J. FRANKLIN
I, Cedric J. Franklin, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.
1. My name is Cedric Franklin. I am 47 years old and of sound mind.
2. Before I was arrested, I lived with my wife and daughter in Baton Rouge. My wife has a cyst on her brain that has required several surgeries, and she is permanently disabled. I also have a 31-year-old son and a step-daughter. I am the proud grandfather to three grandchildren, who are 13, 12, and 8 years old. I worked as a Kitchen Supervisor at The Chimes Restaurant and as the leader of a youth football organization (ages 5-13), where I also served as a coach. My wife tells me that several of the other coaches have reached out to her to check on me and tell her that I am greatly missed. I also served my community as an usher and in the parking lot ministry at my church. My pastor, assistant pastor, employer, coworkers, and state representatives appeared on my behalf in my criminal court case.
3. I am currently detained in the East Baton Rouge Parish Prison in East Baton Rouge, Louisiana. I have been in the Sheriff’s custody since January 6, 2020. I pled no contest to misdemeanor charges for possession of marijuana, possession of schedule one drugs, and sexual battery on January 6, 2020 and accepted a two-year sentence, in large part because the prosecution agreed to give me time before my plea to get my affairs and my wife’s care in order. I have to serve one year of my sentence in a correctional facility at the East Baton Rouge Parish Prison. I self-reported to the jail, where I am serving my DOC sentence locally, on the same day. I am set to be released on January 2, 2021, so I have a little over seven months left on my sentence. My wife told me that she has attempted to contact the Judge on my case to see if I could be released early, but she has not received a response from them.
4. I have been diagnosed with Type 2 Diabetes, high blood pressure, and blood clots in my legs. I also have chronic pain in my back from surgery for spinal stenosis a couple years ago. My wife has been contacting the Medical Director’s and Warden’s offices regularly about my health conditions and has an email from them stating that they are aware of my conditions.
5. In the East Baton Rouge Parish Prison, I was first confined on the Q5-6 housing lines from January through March 28, 2020. Q5-6 is a large line where over 100 men sleep in bunkbeds in the same room. On March 28th, I was written up for a disciplinary violation for tobacco being at the foot of my bed. I didn’t know there was tobacco at the foot of my bed, and I don’t know where it came from. Regardless, the guards moved me to M1, a solitary confinement line, for my disciplinary punishment. I stayed on M1 from March 28th to March 30th.
6. I was supposed to go back to the Q5-6 lines after my disciplinary segregation, but the coronavirus had gotten into the jail by then, and I learned that Q5-6 had been quarantined. The whole jail was quarantined and all movement outside of the housing
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lines had stopped as of March 28th. Everything came to the lines, and detainees couldn’t leave for meals or pill call. The Warden also changed our sleeping arrangements so men were sleeping head to toe with the other guys around them, but they didn’t move people out of the big dorm rooms.
7. I was sent to central booking instead of going back to Q5-6, and I stayed there for about three days, until Wednesday, April 1. Central booking is where detainees come into the jail from the community. It was nasty in central booking. The jail very seldom mops the cells or cleans. When they did clean, the guards had the trustees in blue do the cleaning. I never saw them clean the individual cells while I was there. They just kept putting people in the cells.
8. There are two big cells in central booking that hold 50-60 people each, one for detainees going to the district court and the other for detainees going to the city court. There are also about 7 smaller cells that hold about 5-6 people each. None of the cells have any mattresses or bedding. Everyone has to sleep on the wooden benches or the concrete floor. We didn’t get any mats or blankets. The cells have walls on the sides, but they have bars on the front. I could reach from my cell into the cell next to me, and we could pass things between cells that way too. Each cell has a telephone in it.
9. Once the jail staff at central booking learned that Q5-6 had been quarantined and I had been on Q5-6 before, they put me in one of the smaller cells alone. But they didn’t test me for coronavirus or take my temperature. I felt exposed because I could have caught coronavirus from any of the staff in central booking or any of the detainees coming into central booking. Even though I had my own cell, I was breathing the same air as everyone in central booking.
10. I could see the jail staff doing intakes from my cell in central booking. When people entered the jail, they were fingerprinted, dressed out in a jail uniform, and put in a cell. They did not get any medical evaluations at that time. The medical staff conducted an evaluation later. But they did not take anyone’s temperatures or test anyone for coronavirus while I was in central booking. It seemed like they didn’t know what to do, like nobody in the facility knew what to do.
11. I got worse medical care after the coronavirus hit the jail, which started when I was in in central booking and continued through my time on B3, when my wife had to call the Warden and the head medical person to get me care in solitary confinement. Before coronavirus, I would get my insulin medications before each meal, and I would also get a diabetic snack at night. But after the coronavirus got to the jail, I wouldn’t get my insulin medications until hours after my meals, most of time as many as four or five hours later. Nurses didn’t do pill call in central booking. Instead, I had to tell the nurse what medications I was on, and the nurses might check—or not—if that was right and might bring me my medications a couple hours later. It seemed like the nurses were constantly busy, like they had so much to do and had nothing in order.
12. My insulin levels have gotten really high because of this poor medical care, and I still can’t get them to go down almost two months later. There is no dietician at the jail, so
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we have to eat whatever they issue us—a lot of starch and sugars—if we don’t have money to buy other food from the commissary.
13. The nurses in central booking heard that I might have the coronavirus because I had been on Q5-6, and they treated me different from the other people in central booking. They didn’t want to come near me or bring me the medications or other things I needed. They barely communicated with me and usually stayed about 30 feet away from me. But they never checked my temperature or tested me for the coronavirus, even with their fears.
14. The guards also treated everyone in central booking like they had coronavirus and avoided contact with the detainees. But the guards are the ones who were leaving every day to go home and come back into the facility. We should have been afraid of them.
15. The guards had hand sanitizer, but the detainees only had soap. Jail staff just stressed that we should wash our hands for 20 seconds with soap and water and throw away our paper towels after we dried our hands. I had originally learned this as a dorm rep on Q56, and the guards expected me to teach everyone else on my line. The guards didn’t tell the other detainees themselves.
16. From central booking, I was moved with several other people to J1, where we were quarantined for about 15 or 16 days. J1 has a row of cells on a long hallway. There is a tv and two phones on the hallway too. nWe didn’t have a day room or tables, so we had to sit on the floor when we watched tv. There was also a shower at the end of the hallway. We shared the shower, phones, and tv.
17. Guards put two of us in each of the cells. The cells had walls on three sides and bars on the front of them. Each cell had two beds, a sink, and a toilet. The toilet didn’t have a lid—none of the toilets in the jail have lids on them. Just like in central booking, we could reach through the bars and pass things to each other in our cells.
18. We were able to go in and out of our cells when we wanted to during the day, but we were locked in the cells after about 10:30 pm or 1:30 am, depending on the night, until shift change around 4:30 the next morning when the guards would open the cells again.
19. The nurses started taking our temperatures for the first time on J1, toward the beginning of my time on that line. But they didn’t test anyone for coronavirus. I didn’t see the nurses testing anyone until I was tested and put on B3 myself. That’s the first time I saw anyone being tested, in central booking, J1, or F3. The nurses on J1 didn’t say or do much if anyone had a high temperature, either. They just gave the person Tylenol and water.
20. The guards brought us cleaning supplies about once a day on J1. We usually got a mop and bucket with bleach or some other chemical in it, depending on which guards were working. I don’t know what the chemical was. They didn’t bring us much—only just enough to clean the area. The detainees were responsible for cleaning. If we didn’t try to clean our own cells, they didn’t get cleaned. The guards didn’t care if J1 was clean or not.
21. Around April 15 or 16, I was moved to the F3 housing line, along with about 14 or 15
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men on J1 with me. F3 didn’t have people on it before us, and the jail opened it to hold people who were coming out of J1. The line holds about 24 people in one room with bunk beds.
22. F3 is gross. There are rats bigger than possums or cats on the line, and we have to hide our food from commissary on the sides of our beds where the rats can’t get it. If we leave our food in the lockers, which don’t lock, the rats will get into it. The catwalk on the line looks like people have spit on it for 25 or 30 years, and the jail has done nothing to clean it. The guards don’t clean it. They don’t clean anything. They used to have the trustees clean, but they don’t do that anymore. F3—like the rest of the jail—is in turmoil and needs to be shut down and at least cleaned very thoroughly. It’s very run down.
23. There is a day room on the line, and the men on the line share the four benches in the day room to watch tv and eat. We also share four showers and four toilets. Two of the showers and two of the toilets don’t work.
24. Around April 20th, guards selected me to help clean the A4, B2, and C01 lines. I don’t know why they picked me, and they didn’t tell me why. I think it might be because they regularly see me cleaning and being a leader in the dorm. The guards also didn’t tell me why we were cleaning. I later learned that the prison had recently reopened those lines— which were previously condemned—to house guys who tested positive for the coronavirus. I also learned that the jail had sent the men who had been on those lines to Angola that same day after they tested positive for the coronavirus. The jail wanted us to clean the lines so they could put more people on them. Guards gave me a mask, gloves, and a bodysuit for the cleaning.
25. As far as I know, the jail is holding coronavirus patients on lines A1, A2, A3, A4, B1, B2, B3, and B4. I’m not sure about the C lines because they don’t let people back there and no one knows who is back there except the guards who work on those lines. A stretcher couldn’t get back to those lines if someone there needed one.
26. Two days after cleaning the A4, B2, and C01 lines, I felt like I was coming down with a cold. I tried to stay on top of it by visiting medical to get Tylenol and a cold pack, which is what they were giving us at the time. They just gave me Tylenol, Mucinex, Vitamin C tablets, and water for the next few pill calls. I didn’t get any other medications or medical care for my cold.
27. I usually talk to my wife on the phone until the guards shut the phones off, but that night I felt tired and unwell, so I took my medicine and rested instead of calling my wife. My wife later told me she was worried, because I’m not someone to let people know I’m not feeling well. If I say that something’s hurting me, it’s because I can’t take it anymore and it done got unbearable.
28. I felt worse the next day, around April 24th. I developed a fever—that I had for three days—as well as body aches and chest pains. I was weak, and my body ached so bad that I couldn’t get out of bed. I wasn’t able to get up early and help clean the F3 dorm like I usually do. I lost my sense of taste and smell, and I didn’t want to eat.
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29. The guards sent medical staff in to do a temperature check. My temperature was 101 degrees Fahrenheit, and the nurse told me to pack my things to go to B3 lockdown. One of the other men helped me pack my things because I was too weak, and the guards took me to B3. The same guy who helped me pack my stuff called my wife to tell her that I was being moved and that it was probably coronavirus-related.
30. Before they put me on B3, a nurse tested me for coronavirus. I was told by the medical staff that I would have to stay on the B3 line for at least two weeks, until I tested negative two times in a row. Now they’re telling us we can catch the coronavirus twice too.
31. I was very scared to be moved to B3 because I’m at high risk for the coronavirus and I was going to be surrounded by all the people back there who were sick. There were about 10-12 people on B3 while I was there. Most of them were already there when I was moved back to the line.
32. I shared my cell on B3 with another person who had already tested positive for coronavirus. He was a diabetic as well. The cell was not very big—about 8 feet x 10 feet—so we couldn’t be six feet apart in the cell.
33. The line was filled with a bunch of other guys who had also tested positive for coronavirus. The jail was doing things backwards. If I didn’t have coronavirus when I was put on a line and in a cell with people who did, what are my chances of not getting the virus? I felt like the jail was jeopardizing people who hadn’t tested positive yet.
34. We were locked in our cells for most of the day, and there was nothing to do in our cells.
35. We were allowed out of our cells once or twice a day, depending on the guards on duty, for about 45 minutes to an hour. The guards treated us like we were on lockdown, like we were in solitary confinement. But we were just there to be quarantined, not to be punished. We didn’t have a tv in our day room, which I don’t understand because we were not on disciplinary segregation. But I felt like we were being punished.
36. I used the time out of my cell to call my family, but there was not much else I could do. If my family was at work and couldn’t talk, I didn’t have anyone to talk to, and it felt like a waste of hall time.
37. The B3 line was nasty, even after we cleaned it. I am a clean person, and I had to live with big rats running around everywhere.
38. I tried to ask other people on the line for tissues when I coughed up phlegm. Other people on the line just spit up into the hallway, and the guards just left it like that.
39. Some of the guards gave us bleach or another chemical in a mop bucket to clean the line, but others didn’t. It depended on the shift. I don’t know what the other chemical was. The guy in my cell and I got a spray bottle with a small amount of chemicals from the guards. We used that to clean our cells, the phone, the toilet, and anything else we touched outside of our cells. I tried to make the chemicals we got last a full week, but they were very limited. I cleaned my cell every day that I could. I don’t know if anyone
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else on the line had a spray bottle or chemicals.
40. My wife called the medical department of the jail on Friday, April 24 and got my test results—I was positive for coronavirus. I didn’t get any paperwork on this from the jail until Monday, April 27.
41. My wife called the medical department and the warden constantly to get me medical care on B3. They only respond when a family member calls like that.
42. Nurses came on the line for pill call two times a day, but that’s the only time we saw them. Some nurses did temperature checks during pill call, some didn’t, depending on nurse. Some nurses did care and might come back to check our temperatures, give us water, or give us more medicine. But this was very seldom, maybe once or twice a week for one extra visit a day, depending on the shifts.
43. They’re really not doing this “isolation” thing well. They aren’t social distancing us at all, and they’re mixing people who haven’t been confirmed to have coronavirus with those who have tested positive.
44. I took two more coronavirus tests around April 7th and 8th. Both tests came back negative, and I was moved back to the F3 line around April 9, 2020. I have been on F3 since then.
45. I feel like the people in high places in the jail don’t care about us. They haven’t been here in a long time, and there’s a lot of things they would have to do to get this place into better condition. It’s crazy how things are in here, especially right now.
46. If I was released into the community, I would quarantine at my home in Baton Rouge, where my wife and step-daughter have been isolating for weeks. We have an additional bedroom where I could quarantine away from my family members if I needed to. I would be able to stay away from people who were sick and buy myself alcohol-based cleaning supplies. I would also have access to clean water, healthy food, and medical care of my choice if I needed it. After my quarantine, I would be able to resume work at The Chimes Restaurant—they have told me that they are holding my position and that I always have a job with them.
This declaration was orally sworn to by Cedric J. Franklin on May 26, 2020 because the East Baton Rouge Parish Prison is currently not permitting documents to be exchanged for signature.
Under penalty of perjury, I declare that I have read the foregoing in its entirety to Cedric J. Franklin on May 26, 2020.
By: Miriam Nemeth Date: May 26, 2020
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EXHIBIT 2

Case 3:20-cv-00278-BAJ-SDJ Document 21-5 05/28/20 Page 2 of 5
DECLARATION OF WILLIE SHEPHERD
I, Willie Shepherd, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.
1. My name is Willie Shepherd. I am 38 years old and of sound mind.
2. I am currently detained pretrial in the East Baton Rouge Parish Prison in East Baton Rouge, Louisiana. I have been confined in the jail since February 27, 2020.
3. Before I was arrested, I was living in Minnesota and had a job doing security at the Black Bear Casino in Cloquet, Minnesota. I was in Louisiana for a week and a half visiting some friends and my two children, who are seven and 19. I got arrested about a week after my vacation started.
4. I have high blood pressure, and I’ve had a bleeding ulcer since 2012.
5. I am currently confined on the Q3 line. There are about 45 people on the Q3 line right now; the line can hold as many as 80 people. Q3 is an open dorm-style room where all the beds are in the same room. The beds are no more than about three feet apart. We can touch the next bed from our bed.
6. The day room on the line is about 30 yards by 25 yards. There are eight benches that seat four people each and five tables that seat four people each. The benches, chairs, and tables are bolted to the ground, so we can’t move them away from other people in the room. We can’t socially distance on the line, especially if you’re sitting in the day room.
7. Around April 12, 2020, I filled out a sick call to medical because I had a headache and body aches. I never had a temperature. The nurses tested me on April 14th. They left me on the line for two hours before the guards moved me to the B3 line, which is a solitary confinement line. They moved me before I got my test results. Five days later, I got my results—I tested positive for coronavirus.
8. I was put in a cell on B3 with three other people, one of whom tested negative for coronavirus. The cells were about 10’x 6’ and had two sets of bunk beds in them. There were bars on the front of the cells and thin metal walls between the cells. Our bunk beds were bolted to the walls, and if someone sat down on their bunk in the cell next to you, it would move your bed too. We could reach through the bars on the front of our cells into the next cells. We were so close that we could pass things to each other through the bars on the front of our cells if we wanted to. Sometimes, we got a newspaper—when the shift felt like bringing it—and some guys would pass that around through the bars.
9. We didn’t get any real medical care on B3. Medical staff came back twice a day for pill call, when they would give us our prescription medications. I got medications for my high blood pressure at pill call. But all they gave us for coronavirus was Tylenol. After about a week and a half on B3, the nurses also began giving us vitamins. That was all we got, and the nurses didn’t give us any other medical care during pill call. We didn’t even get Gatorade, and we barely got any water. I don’t know why they moved us if they weren’t going to do anything for us but give us Tylenol and vitamins.
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10. If we needed medical care and someone was out of their cell, that person could beat on the door to get the deputy’s attention. If the deputy came back to the line—they only came back about half the time because they didn’t want to be around us—they would be the ones to call the nurse. First, a Lieutenant would come back before the medical staff to see if it was a real problem. Then they would call medical staff to come back. A few people couldn’t breathe back there, and I was worried about what would happen to them if they needed medical care.
11. One day on the line, I was throwing up blood from the four extra strength Tylenol and vitamins the nurses gave us during pill call, which didn’t sit well with the bad food they served us on the line. It took five hours to get the nurse back there. She wanted to see the blood, but I threw up in the toilet and had flushed it. She told me that next time I throw up, I needed to throw up in something to show her. I didn’t have anything to throw up in except a piece of paper. I would have had to throw up on the floor. The nurse didn’t give me any medical treatment that day, and she didn’t come back to check on me later either.
12. The guards didn’t let us leave the line once we got there. I missed two court dates while I was on lockdown, on April 24th and May 4th. My court dates weren’t cancelled, and my public defender told me the guards were supposed to bring me to court. But they didn’t. If they had, I would have been home by now. I would have pled guilty on April 24th and gotten credit for time served on May 4th. I’ve heard that other people are missing court dates because of the lockdown too.
13. The guards even brought our food onto the line for us. The food was always cold when it got to us. The guards weren’t wearing gloves when they served us food, and sometimes they weren’t wearing masks either.
14. The guards didn’t come back to the line regularly to give us water, and we got no water at night. The water in the sinks in our cells was really hot, and if it sat for a little while, brown stuff came out of the faucet. But sometimes we had to drink it anyways.
15. We were locked in our cells all day and let out of our cells by the guards for about one hour a day, once a day. They didn’t even let us out twice a day. When I was out of my cell, I took a shower and used the phone.
16. One shift of guards would clean the phone between letting men out on the line, but the other shift didn’t. Each shift worked about three to four days a week. I always put a sock on the phone to use it, and I still do that.
17. The shower on B3 was ice cold. I couldn’t take a shower in it, and I had to use the sink to shower the whole time I was back there. The guards didn’t clean the showers. The guys on the line sometimes did. They would ask the guards for bleach. Sometimes the guards would bring it and sometimes they wouldn’t. A lot of times, the guards didn’t want to come back there and deal with us.
18. We just got regular old soap to clean ourselves, not antibacterial soap. We got a 14 gram bar of soap from the prison every week or week and a half, if that. The bars were about as long as my thumb and the width was about the size of four nickels.
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19. We didn’t get masks or gloves on B3. The guards gave us bandanas two weeks after I got onto B3. I had my first bandana for a little over a week. When they eventually changed it out, they gave us a new one. The next week, they just washed the bandanas and gave us an old bandana back. I would have preferred to keep the new bandana and wash it myself.
20. I was on lockdown in B3 for about three weeks before the guards moved me back to Q34 on May 5, 2020. The guards told me I tested negative for coronavirus on Thursday, April 30th, but I never saw any paperwork about this. I did get paperwork for my positive test result. The guards didn’t move me off B3 until Monday, May 4th.
21. Q3 is in quarantine, according to guards. We’re not allowed to move around the facility, and we can’t go outside.
22. The guards come on the line just during count, and on some shifts they might also walk the line once at night. They also feed us on the line. They wear gloves and masks when they hand out our food, but most don’t wear masks or gloves for count. I see the guards wear the same masks and gloves they use to feed us all over the line, on the catwalk, and on other lines. I’ve never seen them change their masks or gloves.
23. They don’t give us any masks. We each get one bandana. Once a week, the guards come to get our bandanas and give us a washed one. But I keep mine—I don’t trust that they’ve washed it, and I don’t want someone else’s bandana.
24. The nurses aren’t taking our temperatures anymore. They stopped taking everyone’s temperatures around May 8th. The nurses don’t come on the line outside of pill call, which happens twice a day. Even then, they usually only stand in the doorway to the tier, and we have to line up in front of them in the day room to get our medications.
25. Some of the men on the line are sick. I don’t know what they have, but it’s likely coronavirus. They have body aches, coughs and no sense of smell or taste. A lot of them don’t want to go on lockdown, so they don’t tell the medical staff they’re sick and just try to fight it themselves. Some of us who were on lockdown can still get Tylenol and vitamins at pill call, but the other guys who haven’t gone to lockdown don’t even get this. The nurses aren’t treating anyone else with symptoms and don’t ask anyone if they have symptoms during pill call.
26. I try to clean the space around my bed every morning and at night, but I can only use the broom and mop that the guards bring on the line. That’s all we have. The evening mop water usually has bleach or other chemicals in it.
27. Everyone on the line shares the showers. We have five showers and five toilets. There is mold in the showers. The guards don’t clean the showers. The detainees try to clean them every night, if they can.
28. The phone isn’t cleaned before I use it, and I have to put a sock on it before I call anyone.
29. When I am released back to the community, I plan to go back to Minnesota or somewhere else where there’s snow, like Wisconsin, Syracuse, or Montana, after my
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Case 3:20-cv-00278-BAJ-SDJ Document 21-5 05/28/20 Page 5 of 5 criminal case is resolved. I want to find a wife and settle down. In the community, I will be able to stay away from people who are sick and buy myself alcohol-based cleaning supplies. I will also have access to clean water, healthy food, and medical care of my choice if I need it. This declaration was orally sworn to by Willie Shepherd on May 22, 2020 because the East Baton Rouge Parish Prison is currently not permitting documents to be exchanged for signature. Under penalty of perjury, I declare that I have read the foregoing in its entirety to Willie Shepherd on May 22, 2020. By: Miriam Nemeth Date: May 22, 2020
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EXHIBIT 3

Case 3:20-cv-00278-BAJ-SDJ Document 21-6 05/28/20 Page 2 of 9
DECLARATION OF CHRISTOPHER LEE ROGERS
I, Christopher Lee Rogers, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.
1. My name is Christopher Lee Rogers. I am 29 years old and of sound mind.
2. I’m currently detained in the East Baton Rouge Parish Prison in East Baton Rouge, Louisiana. I’ve been in the Sheriff’s custody since December 24, 2017. I was sent to Riverbend Detention Center in northern Louisiana for some of that time because the East Baton Rouge Parish Prison was overfull. I’ve been back in the jail since August 8, 2018. I have a probation hold, so I haven’t been able to bond out.
3. Before I was arrested, I was the breadwinner for my family and helped to support my mother and younger sister, who are disabled, and my younger brother. I did carpentry work and landscaping for PCR Properties. When I’m released, I will go back to work for them.
4. Before I was arrested, I went to The Healing Place Church every Sunday. I helped my grandmother and some other old widows by mowing their grass and changing the brakes and oil on their cars when they needed it. I have no children myself, but I helped out with my nieces and nephew sometimes. I spent time with them and took them to the park. I would like to have kids some day and hope to find someone to settle down with when I’m released.
5. I lived with my mother and siblings but, when I am released, I plan to quarantine with friends until my test results come back negative to protect my family members. Then I would move home and help my family out. I know they really need me.
6. I have never been tested for diabetes, but I am concerned that I might have it. Every member of my family has diabetes, and I have some of the symptoms. I have to go to the restroom a lot, and I have dry mouth. The jail won’t test me for diabetes.
7. Before April 20, 2020, I was confined on the F5 line.
8. For a few days before April 20th, I reported to a nurse that I wasn’t feeling well. When I told them I had symptoms, they said they’d come back later and that no one had the virus on my side of the prison. They just assumed nothing was wrong and left me on the line for several days with symptoms—a really bad headache and body aches. I had to write a medical request to get my temperature checked.
9. A nurse finally checked my temperature on April 20th. It was 102.5 degrees Fahrenheit. I was tested for coronavirus and found out on April 24th that I was positive. I believe a deputy brought the virus onto my line, since they are the only ones coming on and off the line.
10. Guards came back later that night and moved me off the line to lockdown in B3. They told me I would be back there for 14 days to get well and then would need to have two
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negative test results before I could be moved back to F5. But I stayed longer than 14 days. I was on the line from April 20, 2020 to May 8, 2020.
11. The F5 line was quarantined when I was pulled off, and the men who were still on the line got masks—flimsy surgical masks like nurses wear on TV.
12. They gave me a bandana to cover my face when they moved me. I never got a mask or gloves. The prison says they won’t pass out gloves because they’re contraband.
13. B3 is in part of the old building in the prison that was closed before the coronavirus hit because it was filled with mold and rats.
14. I was never allowed to leave the B3 line. I couldn’t go outside, get any rec time, or get my own food. We had no way to talk to anyone else in the prison, except for the other guys on B3. We were basically just left back there.
15. There are some windows on B3, but we could barely see out of them. They are on a catwalk outside of our cells. We didn’t get to see much of the outside world on B3.
16. There are six cells on B3, and there were at least two people in each cell, sometimes three. My cell had two people in it, including me. I think there were at least 12–16 people on B3 at all times when I was back there.
17. The cells had bars on the front and a gate that locked. The other three walls were thin iron. Some of the walls had holes in them so you could see into the next cell. I could reach through the bars on my cell into the cell next to mine. The men on the line passed stuff this way throughout the day, like toilet paper, writing utensils, pictures, etc. We could pass things all the way down the line of cells. Because the prison didn’t give us enough supplies, we had to ask each other for hygiene supplies and toilet paper when we were running low. It would have to pass through so many hands to get to you—it’s a shame that this happened with the virus, but it did.
18. It was always really hot on the line. I would start sweating just standing and talking on the phone. There was air conditioning in two of the cells, but the other cells and the day room didn’t get any air. It was very stuffy in the daytime.
19. We were locked in our cells pretty much all day. Guards unlocked our cells and let each person out for about one or two hours a day. Some guards didn’t come around again after everyone had their turn out of their cell, and it could be hard to get their attention if we needed anything.
20. The only time we could use the phone or take a shower was when we were out of our cells. I also did some calisthenics then because my cell was too small to do them any other time.
21. At the end of the hall, there was a day room with a shower, toilet, sink, and three phones. The day room didn’t have a TV, even though we were supposed to have one since we weren’t on disciplinary segregation.
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22. The floors on the line were really filthy. A few days after I got to B3, a guard came onto the line and sprayed the floor with chemicals in a big bottle. This is the only time I saw them clean the floors. I asked the man with the bottle to spray down the things in my cell, like the toilet and sink, but he only sprayed the floor on the line and nothing in my cell. I asked him to spray down the things we touch, like door handles, but he refused. I didn’t see anyone clean the door handles while I was on B3.
23. After about a week or so on the line, I became like a hall man, and the guards let me out more often than the other guys so I could clean the line. I was always trying to keep the line clean, so the guards just made that my duty. The guards didn’t do any cleaning on the line, except for the one time I saw a guard spray chemicals on the floor. When I was a hall man, the guards usually opened my cell three or four times a day, for about two to three hours total each day. I would pick up the trays after chow and clean up the area, in addition to making my calls and doing my exercises.
24. As part of my cleaning duties, I could ask the deputy for chemicals to clean the floor and the shower. They usually gave me a mop and a bucket with some chemicals. The chemicals were usually some purple sanitizing stuff, but I don’t know what it was called. They also let me borrow latex gloves for cleaning, but I had to give the gloves back to the deputy right after because they’re contraband.
25. But the deputies wouldn’t give us cleaning supplies to clean our cells. When I asked the deputies for bleach or other chemicals to clean my area, they either said no or they said they would bring me some, but then they made excuses for why they couldn’t. I had to file a grievance to get cleaning supplies, and they brought me bleach once after my grievance, around my second week on the line.
26. When I saw they wouldn’t give us chemicals for our cells, I took a cupful of the water from the bucket I used on the floors to try to clean my cell and to keep the phone clean. Otherwise, I had to use soap and water to clean. I had to use a rag torn from an old towel to clean my space and the phone, but I could only get that washed with my laundry once a week.
27. I showered every day to keep the germs down. I shared the shower with all the men on the line, but we couldn’t clean the shower in between people using it. The shower was filthy and only had cold water. The mat on the floor had mold on it, there were lumps of soap on the floor, and the shower itself was rusted. I did my best to clean it when I was the hall man, using the mop and bucket with that purple substance. But when someone showered, the water poured out onto the floor and leaked down the whole line.
28. I got one state-issued regular bar of soap and one state-issued roll of toilet paper while I was on B3. The jail didn’t bring these supplies back weekly, like they were supposed to. I tried to order commissary to replenish my hygiene and food supplies. I was able to get one order from commissary on B3 during my first week there, but then they stopped bringing it. I made another commissary order on April 27th and the money was taken out of my account, but I never received my items. On B3, guards would bring our commissary items, because the people who usually worked the commissary wouldn’t
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come back there because of the risk. I asked the deputy about my missing commissary. He told me commissary was a privilege and didn’t explain why I wasn’t getting the items I paid for. I put in another order on April 28th and the money was removed from my account, but I didn’t get my items again. We never got our commissary orders. I regularly worried about the older men on B3 who had high blood pressure and diabetes and who needed to buy better food from the commissary.
29. My family put money in my commissary account so I could buy personal hygiene supplies and food to keep myself safe, but I wasn’t able to use that money on lockdown.
30. There were men on B3 with me who didn’t have money to buy supplies from commissary. At first, I sometimes shared my state-issued supplies with them if they needed it.
31. But after I learned that we couldn’t get any more commissary, I had to preserve the supplies I had.
32. Because we couldn’t get disinfecting cleaning supplies for our own use, I had to wear socks on my hands and put a sock over the phone to call my family. I didn’t touch anything outside of my cell without socks on my hands. If I had some chemicals in my cup, I would wipe down the phone with my rag every morning and whenever I was let out of my cell. I never saw the guards clean the phone.
33. Without the TV, there was no way for us to get information about the coronavirus except from our families on the phone. The guards didn’t give us any information about the coronavirus, how to protect ourselves, or what was going on in the world.
34. I was bored most of the time. I read my Bible and worked out to ease my mind, and I showered and talked on the phone to my grandmother, mother, siblings, and friends when I was out of my cell. There was nothing else to do. Around May 7th, the guards let some of the men out of their cells at the same time, and they played cards. I didn’t play cards because I didn’t want to catch coronavirus from the other men.
35. Guards bring our food to us on B3 and we have to eat in our cells. Although most of the guards wear gloves and masks when they hand out our food, some don’t. The guards wear the same gloves the whole time they’re serving everyone, and I’ve never seen them change their gloves. The masks are those harder bubble-shaped masks. Many of them also wear body suits.
36. The guys on B3 weren’t given masks. We got only cloth bandanas. I had to wash my bandana in my sink with soap and water to keep it clean. I remember getting laundry on B3 only once, so I washed all my items myself for the most part.
37. Nurses came on the line twice a day most days for pill call, when they handed out prescribed medicines. Some days, the nurses didn’t come on the line, so the deputies brought our medications even though the deputies weren’t supposed to be handing out medicine.
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38. I didn’t get any actual medical care for coronavirus. The nurses gave me sinus pills and Tylenol for three days and they told me to drink water—that’s it.
39. I asked guards for request forms to get more medicine. But the guards always had an excuse for why they couldn’t give me the forms—like they needed to make copies of the forms or other people on the line were worse off than I was. I asked for the forms when they stopped giving me any medicine after the first three days.
40. The nurses wouldn’t give me medical care for my other medical needs. I was shot in the hamstring before, and my hamstring was numb while I had coronavirus. I wrote the medical unit about this, but they never responded to my request. I asked the nurses about it when they were on the line, but they said they couldn’t help with those types of matters now. I felt like I couldn’t get the medical care I needed and that we were being left back there to see if we would die.
41. My cell in B3 had a sink with a water faucet, but the temperature was so hot that I couldn’t drink the water. Deputies brought a cooler of water onto the line two or three times a day, sometimes less. We would get about a 16-ounce cup of water from each cooler. We didn’t get any other water during the day. I asked the deputy for extra toilet paper one time because I was running low, and the deputy brought me brown paper napkins. I couldn’t use those because they would stop up my toilet. I didn’t want to ask the other men on B3 for personal items—I didn’t want to risk getting the coronavirus again by touching the same things they touched.
42. It was really stressful to be on the B3 line because we were bored, isolated, we didn’t know what was going on, and there were older people back there in way worse condition. One man was really sick. We would bring him water when we could, but it was depressing and stressful to watch him struggle. I have been diagnosed with depression and anxiety, and being on B3 was making me more depressed and stressed. Even after I thought I’d beat coronavirus, I was stuck back there with sick people, and I was constantly afraid I’d get sick again.
43. I asked to speak with the Captain and the Warden about how the jail was treating us on B3, but the deputy in charge told me that the Captain and Warden wouldn’t come back to B3 to talk to me. Deputies also told me that the Sergeant who responds to grievances wouldn’t come back to B3 to respond to any grievances I filed. I was not told about the grievance process at the East Baton Rouge Parish Prison when I was booked in or any time after that.
44. When I filed a grievance about our inability to get chemicals to clean our cells and the common areas in B3, Deputy Gafari, the deputy involved in the grievance, came back to my cell on B3 and asked me aggressively why I was writing him up. He got in my face and shoved me into the wall. I told him things would get serious if he shoved me again, and he walked away. I never received any other responses to my grievances. This was a couple days before I was taken out of lockdown.
45. On Friday, May 8th, I was moved back to the F5 line, which is in a different part of the
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same old building that B3 is in. F5 is hot and dirty. The tables have particles of food on them, and I have to sit on newspaper because it’s so dirty on the line. I try not to touch anything with my hands. There are a lot of rats on the line. I have to sleep with my commissary items in my bed so the rats don’t eat them. We can’t see out of the windows because there’s so much dirt.
46. The line holds 24 men, but it isn’t completely full because some of the guys are still in lockdown. I’m one of the oldest guys on the line right now.
47. F5 has two sections separated by a set of bars. On one side of the bars is a day room, and on the other side are all the beds. The day room is about 40 feet by 40 feet and has four benches that hold eight people each, if guys sit close together and do not try to do social distancing. There are no other tables or places for people to sit in the day room. We can’t socially distance in the day room.
48. During shift change at 4:30 am and 4:30 pm, guards make everyone stand in the day room and respond to roll call, where they call our names one by one. We can’t be six feet apart in the day room during shift change, and the guards want us to be close together by the door so we can hear them call us. Shift change and roll call usually takes a full hour.
49. There are 24 beds on the F5 line, and they’re all really close together. All the beds are bunk beds, and they are welded together with a small iron bar in between them. We have to climb into our beds from the foot of the bed. I can touch the guy in the bed next to me.
50. Guards bring us our food on carts that they also use to collect trash. Most of the time, they wear masks and gloves, but sometimes they don’t.
51. We don’t get any masks or gloves, only bandanas. They passed out bandanas for everyone on the line on May 10th.
52. On May 11th, deputies moved a guy back to our line from B3 even though he still had coronavirus. They moved him back to B3 on the evening of May 12th, but the deputy told me they were going to put the F5 line on quarantine again because of the guy being back on the line.
53. Also on May 12th, Deputy Murphy passed out masks on the line. He gave masks to everyone but me. I asked him if I could have a mask because I had just come off lockdown and had tested positive for COVID-19 before, and the guys around me agreed that I needed a mask. The deputy said he had to ask, and he never brought me a mask.
54. If we ask for them, we can get chemicals from the guards more often than we did on B3, usually twice a day in the morning and at night. But I didn’t get chemicals from the guards to clean my area when they moved me back to F5. I had to borrow some chemicals from another detainee to clean my space. I don’t know how the detainee got the chemicals, but I know we’re not allowed to keep any chemicals in our property. I’ve now become the hall man on F5 too.
55. The guards don’t clean anything. I haven’t seen them cleaning any high-touch areas like
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the bars between the dayroom and the bedroom. I don’t touch the bars because I know other guys put their hands on them.
56. I have seen another detainee cleaning the phones in the morning when they first get up, usually with a rag and chemicals. The guards don’t clean them. I still have to put socks on my hands and on the phone when I need to call someone.
57. I have seen the guards spray the floor with a keg that has some chemicals—usually bleach—in it. But they won’t actually clean, and they won’t spray our areas with the chemicals so we can keep our spaces clean.
58. There are four showers on F5, but only two work. The showers are dirty, and there is mold on the floor mats in the bathroom. The showers are only cleaned once a day, not between every use. The detainees also do this cleaning with chemicals and rags. The prison gives us only hotel-sized bars of soap on F5, not the usual amount we need to clean ourselves every day.
59. When we get our state-issued supplies in the prison, the guards used to hand out razors for us to shave and collected them when we were done. But since I was moved to B3, I haven’t seen the guards hand out any razors, even after I got back to F5. I haven’t been able to shave or get my hair cut since before I was moved to B3, and I look like a werewolf.
60. The guards check our temperatures once a day in the mornings, while the nurses are handing out medications on pill call. I still have some coronavirus symptoms, like sinus issues and extra mucus, but the nurses stopped giving me any medication once I was taken off B3. I mentioned it to the nurses and have requested more Tylenol and Mucinex. I even filled out a medical request form on the evening of May 10th or the morning of May 11th. I asked a nurse for another medical request form on May 13th, but she didn’t give me one and just kept walking. I also asked a deputy that day. He said he would bring me a form, but he never did. I never got these medications the whole time I had symptoms on F5.
61. I don’t think the conditions are much better on F5 than they were on lockdown.
62. According to my public defender, when the courts reopen, I will be let out on time served. I’ve already served more time than my charges carry, but I’m stuck in the jail. I missed my court date on May 13th, when I was supposed to plead to time served, because the guards wouldn’t bring me off my line due to the quarantine, even though I’ve already beaten the coronavirus.
63. If I was released into the community, I would be able to stay away from people who are sick and buy myself alcohol-based cleaning supplies. I would also have access to clean water, healthy food, and the medical care of my choice, if I need it.
This declaration was orally sworn to by Christopher Lee Rogers on May 21, 2020 because the East Baton Rouge Parish Prison is currently not permitting documents to be exchanged for signature.
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Case 3:20-cv-00278-BAJ-SDJ Document 21-6 05/28/20 Page 9 of 9 Under penalty of perjury, I declare that I have read the foregoing in its entirety to Christopher Lee Rogers on May 21, 2020. By: Miriam Nemeth Date: May 21, 2020
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EXHIBIT 4

Case 3:20-cv-00278-BAJ-SDJ Document 21-7 05/28/20 Page 2 of 5
DECLARATION OF FORREST HARDY
I, Forrest Hardy, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.
1. My name is Forrest Hardy. I am 31 years old and of sound mind.
2. I am currently detained pretrial in the East Baton Rouge Parish Prison in East Baton Rouge, Louisiana. I have been confined in the jail since January 8, 2020.
3. Before I was arrested, I was living with my wife and my two-year-old son. I also have a three-year-old son. I had been working in plants doing maintenance and construction work, but I got laid off in October 2019. I was doing temp jobs to try to find work and support my family after my layoff. Right before I got arrested, I got a new job in the Shintec plant doing maintenance work. I was supposed to start the day I got arrested. I was active in my church and had my life pretty put together.
4. I am currently confined on the Q9-10 line. The line is very outdated. There is mold growing and rust everywhere on the line. The roof is leaking, and the vents have mold and rust on them. In the bathroom, there is mold on the floor and mold, scum, and rust in the showers. The drains in the bedroom, day room, and bathroom are clogged with waste water on my line and the other lines in the Q wing. They’ve been clogged as long as I’ve been on the line. One time, I saw a leech crawl out of the drain in the bathroom.
5. The line holds 120 people, and there’s still about 80 or 90 people on the line right now. There’s no way for us to social distance on the line because of how close our beds, toilets, and showers are, how many people are on the line, and the size of the day room.
6. All the bunk beds are together in an open dorm style room, and they’re less than two feet apart. In the bathroom, the toilets are a hand’s length away. If two guys are using the toilets next to each other, their legs could touch.
7. When we watch TV in the day room, we all sit by each other. There aren’t enough seats in the day room to hold everyone on the line. There are six tables with four seats and eight benches that fit five people each. Other people sit on the floor. There is no social distancing in the day room.
8. Everyone on the line has to be in the day room for roll call and for shift change, and we can’t socially distance during that time. We’re all in a clump against the walls and in the middle of the room, not in a line. Roll call happens two times a day, sometimes three times, and it lasts at least 10 minutes. It’s one of the few times the guards will come on the line. Shift change can last for an hour, and we’re all in the day room that whole time.
9. There are six phones in the day room, but two of the phones are broken. There’s always confusion and fights around the phones.
10. The jail didn’t start doing temperature checks until several weeks after the pandemic started, around early April. Then it took them another about three weeks to hand out face
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masks. Then they began giving out bandanas instead of masks. Around the middle of April, the jail stopped checking our temperatures.
11. My suspicion is that the jail is trying to keep things under wraps, and they’re not trying to identify people with coronavirus. They aren’t testing anyone anymore unless someone has symptoms, and they’re usually waiting until the guy is really sick.
12. They’re also not reporting what’s actually going on. They’re supposed to be testing everyone in the jail, but they never started that. They haven’t reported their test results, saying that the virus is dying down. But if they’re not checking, how can they tell who has the virus but doesn’t have any symptoms? They’re leaving us in a pocket of vulnerability.
13. On several occasions, the guards left people with temperatures over 102 degrees on the line for hours and only removed them after the shift change. Sometimes, those men stayed on the line for twelve hours. I don’t know why the jail staff did that. I understood that detainees were supposed to be removed immediately if they had temperatures over 100 degrees.
14. Around mid-April, I cut my hand on a razor and asked the guards in the control room for a Band-Aid. They told me they didn’t have a first aid kit in the control room, even though they’re supposed to have one there. I never got a Band-Aid or antibiotic ointment. I asked nurses during pill call, but the medical cart often isn’t stocked with what they’re supposed to have, like Band-Aids, triple antibiotic ointment, and aspirin or ibuprofen.
15. Nothing is cleaned on the line, and no one here practices sanitary practices. The bars on the line are always gunked up with mold, juice, spit, and old food.
16. There are no cleaning supplies or disinfectants on the line. The jail doesn’t allow us to have bleach or disinfectants. If we get any from the guards, it’s very watered down. Usually, we just get a mop with water, but sometimes the water has some solution in it. I don’t know what the solution is. We cut up old towels to make rags that we use to wipe down the tables in the day room, but they don’t stay clean for long. We don’t have any scrub pans, Brill-o pads, nothing like that in here.
17. The guards don’t clean the phones or other high-touch areas, and we just have to use them as they are. We try to clean the phones ourselves by wiping them on our uniforms, but with so many touches, they’re never really clean. We put a sock over the phone to try to protect ourselves.
18. The showers aren’t cleaned properly at all either. They get sprayed with some kind of solution every two to three week. I don’t know what the solution is, but it’s not bleach. There’s so much scum on the shower all the time, even after it’s cleaned, that we can scrape it off with our fingernails. At least 80 people share the five working showers on the line, and they ejaculate, pee, and spit in the showers. There are bugs in the drains. The showers are nasty.
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19. The jail won’t give us antibacterial soap. We get one regular 3.5 ounce bar of deodorant soap and one roll of toilet paper from the state once a week on Wednesdays, but we have to buy antibacterial soap from the commissary. They gave us extra soap for one or two weeks, but they don’t do that anymore.
20. We first got thin paper masks in mid-April, about five to six weeks after the coronavirus started. About two weeks later, the guards started giving us bandanas. They might wash our bandanas once a week, but they don’t enforce people turning them in to wash them. I trade mine in every week.
21. We’ve been quarantined since at least the end of March. The guards wear gloves and masks when they bring our food in, but this defeats the purpose because they’ve already touched everything in their gloves. They touch the bars, the doors, they go in and out of the key, and they go on other lines in the same gloves. I can see through my window to the other side of the line, and I’ve never seen the guards change their gloves, even though they’re supposed to every time they move. I know this from my work in plants, where we focused on safety and OSHA practices. Half the time, the guards don’t have masks or gloves because they say it’s not necessary anymore. But they’re the ones coming and going to the outside world, and they have the biggest potential to infect us inside the jail.
22. The guards bring our food onto the line on the same carts they use to collect the trash. I’ve seen the guards put trash from the line onto the cart, and they do this with the same gloves and masks they use to feed us. Our food is usually cold, and we don’t get any ice in our drinks.
23. The guards don’t give us any information or updates about the coronavirus, and they didn’t tell us about washing our hands. They’re very secretive about what’s happening in the prison. They passed out a piece of paper at some point about coronavirus and how to stay safe, but they never enacted anything. For example, they never gave us hand sanitizer, even though they have some in the key. I try to read the newspaper and watch the news every day to stay updated.
24. I filed grievances about the treatment in here, but they keep disappearing and I never get a response. We have to give our grievance forms to the guards to put in the grievance box, and we’re supposed to get a response soon after that. I’ve never received a response to any of my grievances.
25. When I am released into the community, my wife and I are planning to relocate and get out of Louisiana. We’re thinking about moving to Colorado. I previously did geophysical work there, and my wife and son like the snow. In our current house, I have a separate room where I can quarantine if I need to before we move. I will also be able to stay away from people who are sick and buy myself alcohol-based cleaning supplies. I can have access to clean water, healthy food, and medical care of my choice if I need it.
This declaration was orally sworn to by Forrest Hardy on May 21, 2020 because the East Baton Rouge Parish Prison is currently not permitting documents to be exchanged for signature.
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Case 3:20-cv-00278-BAJ-SDJ Document 21-7 05/28/20 Page 5 of 5 Under penalty of perjury, I declare that I have read the foregoing in its entirety to Forrest Hardy on May 21, 2020. By: Miriam Nemeth Date: May 21, 2020
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EXHIBIT 5

Case 3:20-cv-00278-BAJ-SDJ Document 21-8 05/28/20 Page 2 of 4
DECLARATION OF JERRY BRADLEY
I, Jerry Bradley, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.
1. My name is Jerry Bradley. I am 39 years old and of sound mind.
2. I am currently detained in the East Baton Rouge Parish Prison in East Baton Rouge, Louisiana. I have been in jail for almost a year, since April 23, 2019. I pled guilty to time served on April 6, 2020 to get out of the jail before I was exposed to the coronavirus. But I’m still in the jail waiting for the DOC to calculate my good time so I can be released. I’ve been waiting for weeks for them to lift my hold.
3. Before I was arrested, I worked for Midas on College Avenue in Baton Rouge six days a week and lived with my fiancée and my two-year-old son. My boss at Midas told me he’s holding my job for me for when I get free from jail.
4. Before April 13, 2020, I was confined on Q9-10. There were over 100 people on my line, which is an open-dorm-style area. We couldn’t be six feet apart on the line. Our beds were probably about two feet apart, if that, and we all had to gather in the day room during shift change and roll call. The men on the line were anxious and scared of contracting coronavirus. The guards tried not to come onto our line often.
5. The nurses began taking everyone’s temperatures daily around the beginning of April, and we were told that people with high temperatures would be sent to lockdown and would be tested for coronavirus. The nurses and guards wore masks and gloves while taking temperatures, but they did not wear other protective equipment and they move around the facility all day.
6. On April 13, 2020, Sheriff’s deputies came to our line around noon and took everyone’s temperatures. I had a slightly high temperature. I don’t remember the specific number, but I remember it wasn’t over 100 degrees. I didn’t have body aches or any other symptoms.
7. That day, I was moved to lockdown on C01 because of my temperature. The nurses tested me and recommended that I be moved, and the guards actually moved me. I was moved with five other men from my line, some of whom had coronavirus symptoms like being unable to smell or taste. We were told we would be held in lockdown until our coronavirus test results came back. We were not given any other information.
8. On April 14th, I learned that my test results were positive, along with eight other men on C01. A nurse named Ms. Robertson told me I had to test negative twice before they could move me off the line.
9. C01 is a solitary confinement line in an old building in the jail that had been closed before the coronavirus pandemic. It is not clean, and there are a lot of spiders in the cells.
10. I believe that the men in the cells before us were sick, and I don’t know if the cells were cleaned after those men were moved. The Sheriff’s deputies told us they sprayed down
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the mattresses in the cell, and they gave us one piece of paper towel to wipe down the mattresses.
11. The first night I was on C01, the deputies brought us only one cup of drinking water. After that night, some guards barely came back to the line at all, and we might have to go the whole shift without water. Other guards would come back more regularly. It all depended on the shift.
12. I did not get any cleaning supplies on C01, and I couldn’t clean my area to keep myself safe from the virus. The only thing I could do was wash my space with soap and water and wipe it down with my towel.
13. I was given a few masks when I was transported to lockdown and after getting to lockdown. I believe I received about seven masks total since coming to lockdown. The masks are paper/fabric, like the ones in the hospital, and they aren’t that sturdy. We can usually make them last a few days because we don’t wear them when we’re in our cells and we don’t really go anywhere else except to use the phone and shower.
14. Everyone in lockdown has to share the same telephone. I saw the deputies clean the phone once in the first 24 hours I was in lockdown. After that, some guards would clean it before letting the next detainee out of his cell, but some didn’t. Most days, they didn’t spray the phone. When I need to use the phone, I put a sock over it to try to protect myself from catching the virus.
15. The nurses come back to our line twice a day for pill call. They might bring vitamins, Mucinex, or Tylenol for those of us with coronavirus. It depends on who’s working— some do and some don’t. We get vitamins twice a day. That’s about it. They just put us back here, and they’re not taking care of us.
16. The people in lockdown are scared of what will happen to them and how they will get the medical care they need if their test results come back positive. I try not to think about what will happen to me in here.
17. About a week after I got to C01, the guards moved me and everyone else on the line to A1. We’ve been over here for about four weeks, and I’m still on lockdown.
18. A1 is just like C01, except that there are eleven cells instead of nine. The cells on both lines are about six feet across and hold one person. They have bars on the front and walls on the other sides. Our cells are so close that we can pass things to each other through the bars. We could do that on C01 too.
19. We share the shower and phone on this line, too. Guards don’t clean the line, the detainees do, and it depends on who they let out to clean. One guard usually has me do the cleaning. We get deodorant soap and toilet paper from the prison once a week. It’s basically the same as being on C01.
20. If we need to get the guards’ attention on A1 for any reason, we have to kick the walls to get the guards’ attention. Sometimes, it takes them as much as 15 minutes to respond.
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21. During the time that I’ve been back here, including around April 23th, the guards continue to bring more possibly sick people back. I was afraid that I would get sick again from these men.
22. On April 30th, I took another coronavirus test. I got a negative result on May 1st. But I needed two negative results in a row to get off the line. I took my second test on May 1st. On May 4th, my test results came back positive again. I took another test on May 13th and found out on May 19th that the result was positive again, so I’m still stuck back here.
23. I’m still waiting to be released from the jail. The DOC has had my papers for three to four days now, and they keep telling my family that they’re going to come back and get me. But they haven’t yet.
24. If I was released into the community, I would stay with my father in his house in Baton Rouge. I have a separate bedroom there where I could quarantine if I needed to. I would be able to stay away from people who were sick and buy myself alcohol-based cleaning supplies. I would also have access to clean water, healthy food, and medical care of my choice if I needed it.
This declaration was orally sworn to me by Jerry Bradley on May 19, 2020 because the East Baton Rouge Parish Prison is currently not permitting documents to be exchanged for signature. Under penalty of perjury, I declare that I have read the foregoing in its entirety to Jerry Bradley on May 19, 2020.
By: Miriam Nemeth Date: May 19, 2020
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EXHIBIT 6

Case 3:20-cv-00278-BAJ-SDJ Document 21-9 05/28/20 Page 2 of 7
DECLARATION OF CEDRIC SPEARS
I, Cedric Spears, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.
1. My name is Cedric Spears. I am 47 years old and of sound mind.
2. I’m currently detained pretrial in the East Baton Rouge Parish Prison in East Baton Rouge, Louisiana. I’ve been in the jail since January 5, 2020. I tried to bond out a few months ago, but I haven’t been able to bond out since the pandemic hit. I had the money before the pandemic hit, but our finances are tighter now because of the pandemic and because my wife needed the money for surgery for gallstones. I was supposed to go to court on May 26th, but my public defender told me that my court date would be pushed back because of the coronavirus.
3. Before I was arrested, I lived with my wife in Baton Rouge. We had three children: my sons are seven and 24, and my daughter sadly died a couple years ago while I was previously incarcerated. My wife works at a hospital, and I helped around the house. My wife and I have been dealing with the loss of our daughter. My youngest son lives with my ex-wife, and I can’t see him while I’m in jail because they won’t let us have visitors. My oldest son was recently released from incarceration after the hold on him was listed. I was just getting my own business selling printed t-shirts off the ground when I was arrested. In my free time, I helped out my mom, who is 70 years old. She lives alone and can’t move around like she used to. I would clean up and cook for her, bring her things to eat, mow her lawn, run errands for her, and wash her car. She had back surgery earlier this year, and I’d like to get home to help her more.
4. In the East Baton Rouge Parish Prison, I was first confined on the Q5-6 line from about January 8th to March 15th, then on Q9-10 from March 15th through early May, and most recently on Q11-12 since about May 4th or 5th. I also spent several days on the N line in January.
5. We are living in inhumane conditions in the jail. There are leaks in the ceilings, broken toilets, mold all over the place, rust, dust caked on the vents, and blood and other bodily fluids on the walls. We’re constantly breathing in that mold, rust, and bacteria. The jail staff doesn’t care about cleaning. They just bleach the floors but don’t clean anything else, like the walls or the bars. Some of the lines have cockroaches, leeches, or gnats on them. There are windows on some of the lines, but we can’t see out of all of them because they are fogged up and dirty. We can’t see the outside world very much while we’re on quarantine.
6. Q5-6 is where the kitchen workers live, and it’s similar to a trustee line. I worked in the kitchen from mid-February to March 15th. I lost my job when I reported that the jail was trying to serve detainees spoiled food.
7. The kitchen is filthy. You can smell the spoiled food when you walk into the kitchen. There is also old food caked into the cracks in the serving line area, on the counter, and
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on the walls. There are food particles everywhere. They don’t sanitize anything properly, most of the dishes aren’t cleaned properly, and they use the same broom for sweeping the floors and cleaning out the hot box where food is stored. The guards don’t care about us and don’t check behind the kitchen workers to make sure things are clean.
8. For a while, the jail was only allowing trustees to work in the kitchen, but around April 13th, they let the kitchen workers return to their jobs. The rest of the prison is still on quarantine.
9. I believe the coronavirus started on Q5-6. I was living on Q9-10 at the time, and an officer named Chris came onto my line with a mask on. We asked him why, and he said some guys on Q5-6 had tested positive for the coronavirus.
10. I was on Q9-10 for about six weeks. It was nasty and not clean over there. Two of the four urinals were broken, and one or two of the toilets were broken too. The guards had to spray bleach into the drain in the bathroom because leeches were coming out of it.
11. A lot of men were sick on Q9-10 while I was there. They had fevers, some were throwing up, some had diarrhea, some stayed in their beds all day, and some couldn’t eat at all. One guy who came onto the line from work release couldn’t taste or smell, and the jail staff took him out immediately. I never saw him again. He was one of the first ones they took out. The other sick guys on the line put in lots of sick calls to get their temperatures checked. The nurses took their temperatures and knew they had 104 and 106 degree Fahrenheit fevers and said they needed to go to lockdown, but the guards left the guys on the line for 10–12 hours before making them pack their stuff and move.
12. I started having trouble breathing after I got to the jail in January. I don’t know if I’m getting sick or if it’s just all the mold and bacteria I’m breathing in all the time while we’re locked inside here. It feels like I have to fight to breathe in and my breath is really short. I put in a sick call for this around mid-April while I was on Q9-10, but the nurses never responded or gave me any medical care.
13. I asked the guards to move me back to Q5-6 because Q9-10 was so bad. But they moved me to Q11-12 instead. There were still 70 people in the Q9-10 dorms after the prison cut about 50 people loose by the time I left the line.
14. Even though the prison moved me to Q11-12 after the coronavirus pandemic started, they didn’t test me for coronavirus before they put me on that line. I had also worked with the guys who tested positive on Q5-6, but the jail never tested me even though they knew we worked together.
15. Q11-12 is the Christian line. The jail keeps it cleaner than the other lines because they bring people from the community onto this line for tours and to show it off to visitors. The line has two big open dorm rooms that hold about 120 people total. Right now, there are about 60 men on the line total, and all the top bunks on Q11-12 are empty. The jail cut a lot of the nonviolent guys loose and stopped bringing new people on the line in late March or early April. I think the only new guys on the line since then have been the men returning from coronavirus lockdown at Angola or in the condemned parts of our jail.
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But there are still a lot of guys left here and a lot of people who previously tested positive for the coronavirus.
16. We still have to be very close together on Q11-12, and we can’t socially distance. We sleep right on top of each other in bunk beds that are about 2.5 feet apart.
17. Although the day room is a nice size, about 50 feet by 25 feet, the guards make all the men on the line stay in the day room during morning and evening shift change and roll call. Together, shift change and roll call take 30 to 50 minutes, from 4:30am-5am or 5:30am and from 4:30pm to 5pm or 5:30pm. The guards want us close together and close to the door so we can hear them. Once they call our names, we can go back into the day room. The guards don’t come on the line often, except for roll call, to feed us, and to check the lines or harass us.
18. We’re locked on our lines all the time, and we’re not allowed to move around the jail or go to chow. Instead, the guards feed us on the line. They bring our food onto the line with a cart that they also use to collect the trash from the line. We often eat in the day room, but there aren’t enough seats in the day room for all 60 people in the dorms. There are about seven tables and four people can sit at each table. People are constantly touching the tables. Other people eat at their beds or on empty beds.
19. All the men on the line also share the bathroom, including the showers, sinks, and toilets, all of which are only about a foot apart each in the bathroom. All the metal parts of the bathroom are rusted, and there’s mold in the bathroom. We try to clean the bathroom whenever the guards bring us cleaning supplies, but they only bring cleaning supplies two to three times a week. Even then, we don’t always get bleach. Sometimes, we get some other clear chemical sanitizer. I don’t know what it is. When the guards don’t bring us chemicals, we do the best we can.
20. We don’t get chemicals to clean the tables, other high-touch surfaces, the floor, or anywhere else line on a daily basis either. Sometimes the guards bring bleach, but they don’t bring it every day. We get chemicals only about two to three times a week at the most, and we can’t get them at other times during the day if we wanted them. They only bring us chemicals for them—because they need to be on the line around us. On other days, they just give us a mop and a broom.
21. We don’t get chemicals to clean the phones between different people using them. If we want to use the phone after someone else uses it, we have to wash the phone with our soap and water and put a sock on it. The phones are turned on from 8am to 10pm, and there are always people on the phone.
22. The jail gives everyone two free 10-minute calls a week. But money is scarce in my family. My mother is on disability, and my wife just started working again after moving and her surgery, so money is tight and I can’t talk to my family that much. I haven’t seen my family since the coronavirus hit because the jail is closed to visitors, and I miss not being able to see or talk to them as much. I’m worried that my mom, who is 70 and has bad health issues, won’t be living when I get home. I don’t want to lose her while I’m
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incarcerated like I lost my daughter, and this is very stressful to me.
23. We usually get enough soap, especially after the jail started testing for coronavirus and got positive test results. Before then, it wasn’t consistent when we got soap. Now, we get soap twice a week, and it’s usually a regular sized bar. For about a week in early April, the jail gave out only hotel-sized bars of soap. But none of the soap they give us is antibacterial.
24. The jail doesn’t give us gloves. They gave us masks only one or two times. Then they started giving us bandanas to cover our faces instead. We got one or two new bandanas, then the guards began collecting our bandanas to wash them and give them back to us every few days. I don’t give my bandana to the guards for washing. A friend of mine who worked in the laundry room told me that the jail just washes everything on speed wash without chemicals and that things aren’t washed well.
25. We get one uniform in the jail, and it gets washed once a week. Since the pandemic hit, we’ve been able to get our laundry done twice a week, but it’s also done on speed wash, and I don’t trust that my uniform or sheets are clean when they come back from the laundry.
26. We don’t get paper towels or hand sanitizer. If we want to wash our hands, we have to dry them on the uniforms we wear all the time or on our shower towel.
27. The jail doesn’t check our temperatures or test us for coronavirus. They started taking our temperatures in late March or April, but they didn’t start until about two or three weeks after they told the news they were checking temperatures. They only started checking temperatures after people made a bunch of sick calls. They checked our temperatures for about three weeks, but then they stopped doing it in late April. I last saw them testing someone about one week before they stopped checking temperatures, while I was still on Q9-10. I haven’t see them test anyone or take anyone’s temperature since I was on Q9-10, and they don’t check on us regularly either. As a result, they don’t know who is positive and who is not. But I still see a lot of people coughing on the line.
28. We used to walk to pill call before we were all locked on our lines. Now, the nurse comes to the dorm, and we all line up at the bars between the day room and the hallway to the rest of the jail. Pill call happens twice a day, usually between 7am and 8am and between 7pm and 10pm, depending on the nurse on shift. We speak to the nurse without masks on and reach through the bars—that everyone touches—to get our pills. We have to take our pills right there and can’t wait until we wash our hands to take them. There’s no way to socially distance during pill call.
29. The guards don’t tell us anything about the coronavirus or how to take care of ourselves during the pandemic. We haven’t seen the Warden since the beginning of the pandemic, and no ranking officer comes back to tell us anything. The guards mostly just try to get off the line quickly. They act like they’re in danger being around us, but they’re the ones who go into the community and get exposed to the virus. We might have had a sign up with information about coronavirus at one point, but I don’t think I saw signs on each of
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the lines I was on.
30. We try to get our information about the coronavirus when we watch the news—there are two 32-inch TVs in the day room. But on Q9-10, at least, the guards would shut off the TV when reports about the coronavirus came on the news. I remember this happening on each guard shift.
31. The jail recently diagnosed me with bipolar disorder, paranoid schizophrenia, and depression after examining me for no more than eight minutes. They are forcing me to take medications for these conditions. But I’ve never had mental health problems my entire life, and the social worker wouldn’t give me any education about the medications. I don’t want to take these medications without knowing about the side effects. But I can’t talk to the social worker about my diagnosis or my medications because she won’t come back on the line to talk to us. So I’m forced to take these medications that I don’t want to take and probably don’t need.
32. Being in the jail during the pandemic isn’t helping my mental health conditions. I feel depressed because I can’t go home, and I’m scared because I don’t know what’s happening. I feel like my life might be in danger if I get the coronavirus in here. I’m really stressed because no one is listening to me in here.
33. The jail doesn’t tell us how to file grievances during intake, and we have to try to figure out the process on our own. We can’t drop our grievance into the grievance box ourselves because the box is off the line and we’re not allowed to leave the line while we’re quarantined. Instead, we have to give our grievances to the guards when they collect the mail and depend on the guards to put our grievances in the box. But I’m never sure that my grievances make it into the box. I’ve seen guards lose grievances from another line on our line. I don’t trust these people.
34. I’ve filed grievances before and never heard back about them from the jail, even though they’re supposed to respond to me. For example, in mid-March of this year, I filed a grievance about the mold and dust in the jail, the fact that we can’t socially distance, and that we have to take our pills through the bars with without washing our hands. I never received a response to this grievance. I can’t appeal my grievance without a written response from the jail.
35. On May 21st, the guards put another inmate named Byron Cassidy on the line with us. I saw him when I woke up on the 22nd for roll call. He was sick. Then I went back to sleep and woke up again when he was packing his things and the guards were moving him to lockdown. His stuff was in a bag in the hallway, and they took his mattress out there too. The guards didn’t give us bleach to clean the bunkbeds he was on.
36. If I was released into the community, I would go home to my wife. We have a onebedroom apartment in Baton Rouge, and I can quarantine in our bedroom or living room if I need to. I will also be able to stay away from people who are sick and buy myself alcohol-based cleaning supplies. I will have access to clean water, healthy food, and medical care of my choice if I need it.
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Case 3:20-cv-00278-BAJ-SDJ Document 21-9 05/28/20 Page 7 of 7 This declaration was orally sworn to by Cedric Spears on May 22, 2020 because the East Baton Rouge Parish Prison is currently not permitting documents to be exchanged for signature. Under penalty of perjury, I declare that I have read the foregoing in its entirety to Cedric Spears on May 22, 2020. By: Miriam Nemeth Date: May 22, 2020
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EXHIBIT 7

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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

PLAINTIFF NAME, PLAINTIFF NAME, PLAINTIFF NAME, PLAINTIFF NAME, individually and on behalf of all others similarly situated,

Plaintiffs, v.

Case No.

SHERIFF SID GAUTREAUX, in his official capacity; CORRECTHEALTH; CITYPARISH of BATON ROUGE, LOUISIANA,

Defendants.

DECLARATION OF DEMOND HARRIS
I, Demond Harris, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.
1. My name is Demond Harris. I am 40 years old and of sound mind.
2. I am currently detained pretrial at the East Baton Rouge Parish Prison in East Baton Rouge, Louisiana. I have been in the jail since December 22, 2019. I am a minister to other men in the prison.
3. Before my arrest, I worked in maintenance at apartment buildings and hotels and had my own electrical business. I lived with my significant other and helped her raise her three sons, with whom I am close. I also helped to support my two youngest biological children, who live with their maternal grandmother after their mother died two years ago. I was involved in my church. I was also the primary support for my mother, because I am her only child still in Louisiana, and I helped her with tasks around her house. I know my mother is scared and upset about the coronavirus in the jail, and this hurts me a lot.
4. Before early April 2020, I was confined in Q11-12. The first detainee in the jail to test positive for coronavirus also lived in Q11-12 before he was removed by guards in late March. The man wasn’t removed until he was so sick that he was falling down.
5. In early April 2020, around April 5th, I asked the nurse to check my temperature. I’d had a headache for two days because it was hot on the line and I think I overdid my workout. I didn’t have any symptoms of the coronavirus.
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6. They weren’t taking everyone’s temperatures at that time, but the nurse took my temperature during pill call. I first had a temperature of 101 degrees Fahrenheit, and the nurse told me I had to go to lockdown. I had heard about how bad the coronavirus lockdown was, and I told her I didn’t want to go. She agreed to take my temperature again a half hour later. It was 98 degrees Fahrenheit the second time she checked, which was below the cutoff for coronavirus lockdown. But she told me I had to go on lockdown anyways. She assured me that there was nothing wrong with lockdown and that I would have a tv and be comfortable. That was a lie.
7. The nurse gave me aspirin for my headache, and I had to go straight to lockdown. They didn’t even let me bring my property with me. They just told me to bring my mattress.
8. The guards moved me to C01, a solitary confinement line in the old building. The line had been closed down for 2-3 years and was condemned. But the jail just automatically opened it back up for coronavirus. There were rats and roaches on the line. Although I had running water in my cell, I was never sure that the water was safe to drink. But it’s the only water I had, so I had no choice but to drink it if I needed water. I drank a lot of water to keep me healthy on the line. My sink and toilet also ran all the time on C01.
9. The cells on C01 were all in a line, separated by thin metal walls. I think the wall was only about 1/8 inch thick. I could reach into the cell next to mine. Guys passed food and other things up and down the line by reaching through the bars.
10. Other men were moved to lockdown with me. We were the first men on this line, so we brought out own mattresses with us. The men who came after us didn’t bring their mattresses—the just used the mattresses that had been left behind by the previous guys. Nobody cleaned the mattresses or the cells when the first set of men were removed from the line.
11. We were locked in our cells for almost all of the day. The guards would let us out for about 15-30 minutes once a day, after about a week of being on the line. The first week I was on the line, they didn’t let us out at all, and I couldn’t get a shower or use the phone. Some of the guards who kept us locked in our cells like we were on disciplinary lockdown were Thorton, Murphy, and the guards who worked on their shifts.
12. I wasn’t tested for coronavirus until I’d been on the line about eight days. It took 48 hours to get the results, and the jail staff didn’t want to give me my results. They said something about HIPAA or privacy concerns, but that didn’t make any sense because those were my own test results. Finally, Nurse Ricky told me that I tested negative.
13. The other men on C01 with me all tested positive, and they were taken to Angola.
14. For about five days, I was the only person in lockdown, and the guards rarely came back to my area. I was locked in my cell that whole time, and I couldn’t use the shower or phone. All I had was my Bible. It was hard to keep track of the days on lockdown without a tv, radio, or newspaper. I was very lonely, and I got tired of killing spiders back there.
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15. Around April 20th, the guards brought about seven new people into lockdown. Some of those people had fevers and other symptoms of the coronavirus, including being unable to smell or taste. They all came from the same line in another part of the jail. They all ultimately tested positive for the coronavirus.
16. The new people had masks, but I was not given a mask even though I was forced to live around them and share communal spaces like the shower and the phone with them.
17. I was upset that the jail was keeping me on a line with people who were positive for the coronavirus when I was negative, and I was scared that I would get the coronavirus from them. I didn’t have any way to protect myself, and I was worried that I wouldn’t get the medical care I needed if I was sick in lockdown. Why would the jail leave me back there with guys who tested positive and without any protection if I had tested negative?
18. I didn’t leave my cell much, even to use the phone when I finally had access to it, because I didn’t want to touch any of the surfaces or use any of the things that the sick people on the line used. But I did leave my cell to call my mother and my public defender about the fact that I tested negative for the coronavirus and was being housed with men who tested positive for the coronavirus. I asked them to call the Warden and try to get me moved back to Q11-12.
19. The Warden agreed to move me if I had a second negative test result. But when the nurse came back to test me, around April 24th, I ended up having a positive test result. It was still hard to get the jail staff to give me my test results. When I finally got the results, I was so upset and scared about being positive that I cried. My mother cried too. If the guards had just taken me out of there after my first negative test result, I might never have gotten coronavirus. The nurses told me that I needed to test negative twice after by my positive result before I could go back to Q11-12.
20. We got absolutely no medical care for coronavirus on lockdown. The nurses were so scared to go back to the lockdown lines that they would only come back to check our temperatures and then literally run out of there. They only checked our temperatures for the first 21 or so days that I was in lockdown. Then they stopped checking everyone’s temperatures on the line. They mostly just gave us our pills and left. We first got Tylenol and Mucinex about 14 days after they brought me to lockdown, and we started getting Vitamin C pills after about 28 days in lockdown.
21. I never saw the head nurse or any other members of the prison’s medical staff while I was on lockdown. I only saw the CNAs or the medical assistants, never anyone who could give out information about the virus or our test results.
22. The only jail staff who came to lockdown were the guards. They didn’t have any information, and they didn’t provide us with any updates.
23. The prison didn’t give me any cleaning supplies or personal protective equipment to keep my space clean or protect myself from the spread of the coronavirus. My mother—a former nurse—put extra money in my commissary account to help me protect my health, but I couldn’t get anything from the commissary on lockdown. I didn’t have any hygiene
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or cleaning supplies that could actually kill the virus, and I couldn’t protect myself or clean my space. I didn’t even have hot water in the shower or in the sink in my cell.
24. Because I didn’t have my property, the only things I had were what the jail gave me: my state-issued roll of toilet paper, hotel-sized bar of soap, and a toothbrush I had to put on my fingertip to use. They brought these supplies every Wednesday.
25. In lockdown, I couldn’t call my family members that often. I could call my mother and my significant other only at most once a day, when the deputies let me out of my cell.
26. When I wanted to use the phone, I had to wash it with the cold water from the sink in my cell, the soap the prison gave me, and some toilet paper. That’s all I had to clean communal spaces and my cell with. I was scared to call people on the phone because the prison didn’t sanitize the phone and everyone on the line shared it.
27. The guards didn’t spray down the dorm or our cells. They wouldn’t wipe down the phones. They did nothing.
28. After about 21 days on C01, around April 27th, the guards moved me and all the men on my line to A1, another condemned line in the old building. I spent the rest of my lockdown on A1. The cells in A1 were just like C01, except that the sink and toilet in my cell didn’t run all the time (but other guys’ toilets and sinks on A1 did). The water in A1 was bad. It had rust and particles in it, but I drank it because I had to. It often upset my stomach.
29. The way we were treated on A1 was exactly the same as I described above for C01. The only difference between the practices on the two lines is that we got bandanas for masks on A1, and the guards came by every 4-5 days to collect the bandanas for laundry.
30. I tried to file grievances while I was on C01 and A1, but we couldn’t file grievances because we’re not allowed to send mail out on lockdown. Grievances usually leave the line with the mail, but the guards weren’t allowed to take mail or grievances from us and bring them to the mail room or the grievance box, to prevent spreading the virus. That’s what the guards told me, anyways. They told me they couldn’t put their hands on it.
31. In my last week on A1, I took two coronavirus tests and tested negative both times.
32. On Sunday, May 10, after about 35 days in lockdown, I was finally moved back to Q1112. I definitely feel like they held me on lockdown too long.
33. I think the jail staff is trying to create an atmosphere of fear around lockdown so that guys won’t report symptoms to avoid going to lockdown. Why else would they take all of our privileges away? They took away almost all of our privileges on lockdown, including commissary, access to hygiene products, mail, open access to phones, and tvs. If people on the line heard about that, they wouldn’t want to tell the nurse they were sick and they would be scared to go to lockdown. So they kept their symptoms quiet, and the jail staff let the virus spread throughout the jail. I think this is how the jail has kept their positive-case count down.
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34. When I got back to Q11-12, I was able to use my commissary funds to get deodorant, toothpaste, a haircut, and a shave. I felt like a human being again.
35. The guards are still moving people onto Q11-12 who are sick, instead of quarantining them away from general population. This just happened within the last week. The man was so sick he could barely walk, so finally jail staff had to move him to lockdown. He didn’t want to go to lockdown because he’d heard how bad it was.
36. If I was released into the community, I would go back to my mother’s house in Baton Rouge. I have my own room there where I could quarantine if I needed to. I would be able to stay away from people who were sick and buy myself alcohol-based cleaning supplies. I would also have access to clean water, healthy food, and medical care of my choice if I needed it.
This declaration was orally sworn to by Demond Harris on May 25, 2020 because the East Baton Rouge Parish Prison is currently not permitting documents to be exchanged for signature. Under penalty of perjury, I declare that I have read the foregoing in its entirety to Demond Harris on May 25, 2020.
By: Miriam Nemeth Date: May 25, 2020
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EXHIBIT 8

Case 3:20-cv-00278-BAJ-SDJ Document 21-11 05/28/20 Page 2 of 5
DECLARATION OF JOSEPH WILLIAMS
I, Joseph Williams, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.
1. My name is Joseph Williams. I am 21 years old and of sound mind.
2. I’m currently detained pretrial in the East Baton Rouge Parish Prison in East Baton Rouge, Louisiana. I’ve been in the jail since August 27, 2019. On April 27, 2020, four days before I was moved to solitary confinement for the coronavirus, the charges against me were dropped because of an illegal police officer search, but I’m still in the prison on lockdown and on a parole hold.
3. I was in the process of enrolling in school when I was arrested.
4. In the East Baton Rouge Parish Prison, I was confined on the F5 line before about April 24, 2020. F5 is a big open dorm with 24 people in it.
5. In late April, the nurses were checking everyone’s temperatures on the line to check for coronavirus. Around April 24th, the nurses checked my temperature, and it was 99 degrees. I saw them write down 100 degrees, even though that wasn’t right. I didn’t feel sick, and I didn’t have any symptoms of the coronavirus. I refused to be tested for coronavirus that day.
6. The guards came back about 20–30 minutes later and told me to pack up. They said I was going to “isolation,” but they didn’t tell me anything about what “isolation” was.
7. They moved me to the B3 line, which is a solitary confinement line in a part of the building that had been closed down for two or so years before the coronavirus. It was really dirty and dusty. We recently saw a rat on the line that was the size of an opossum. The line is also filled with different kinds of spiders.
8. B3 has six cells with four beds in each. For most of the time I was back here, there were two or three people in each cell. Some guys have been returning to their general population lines lately, but there’s still at least one man in each cell. The jail is still bringing guys onto the line. They brought a new guy on the line around May 20th. I don’t know what line he came from. He’s been sleeping most of the days.
9. The cells on the line are not that far apart, only about a hand’s width. The cells are separated by metal walls, but the front of each cell has bars. I can grab the bars on the cell next to me from inside my cell. Other guys on the line pass things between cells this way, but I don’t do it because I don’t want to get coronavirus from the other guys.
10. When I got on the line, the guard put me and my friend Trayvon Robinson in a cell with another guy who had been on B3 for a little while. Our cell has two sets of bunk beds, two lockers, and a toilet/sink combo. I’m not sure if the water in my sink is safe to drink. I don’t drink it because it sometimes comes out salty or with a nasty taste. We can’t stay six feet apart from the people in our cell because there’s not that much space in the cell.
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11. I brought my property with me from the line. I have to store it high up so the rats can’t get into it. If I leave it in the locker in our cell, the rats can get in and get it.
12. The guy who was already in our cell when we arrived was coughing a lot. When I woke up the next morning, my body ached, my head hurt, and I couldn’t eat. I gave my food trays away to the other guys and slept most of the days. This lasted for the first weekend I was on the line.
13. On or around Saturday, April 25th, the nurse tried to make me take a coronavirus test. I refused the test again because my temperature wasn’t high enough, and she brought a sergeant on the line. I finally agreed to take the test when the Sergeant asked. The test came back positive on Monday, April 27th. This really devastated me, and I struggled to call my friends and family or do other things I usually did during the day. I felt dirty on the inside.
14. After several days on the line, the nurses finally gave my Tylenol for my symptoms around Monday, April 27th. But they didn’t do anything else for me. All the nurses do is make sure you take your meds during pill call. After about a week on the line, they also started taking our temperatures regularly during pill call, but they didn’t do this during my first week on the line.
15. The nurses waited about 14 days to test me again. I took my second test around May 8th, and I waited the weekend to find out my results. It was negative. They retested me again around Tuesday, May 12th, and my results were positive again. They didn’t bring me my results in writing—they just told them to me orally about seven days later, only after I wrote a medical request to get the results. They woke me up at 1am to give me the results. I got tested again on May 22nd, and I haven’t gotten my results yet. The nurses told me that I have to have two negative test results before I can go back to general population.
16. If we have any other medical issues, the nurses make us put in a sick call, and it takes a little while for a nurse to come see you. For example, around the end of April or the beginning of May, an older guy on the line had trouble breathing, and another guy had to beat on the door to the line to try to get him medical attention. He beat on the door for 15–20 minutes before the guards even acknowledged us. The guards finally came back to see what was wrong, and they told the older man that nothing was wrong with him. The other guy had to beat on the door again for about 15–20 minutes before the guards came back and only then called medical. I think the guards could hear us the whole time but didn’t want to do any work. It took medical at least another five minutes to come back there. They took the man off the line, and he never came back.
17. Recently, I had chest and stomach pains and was throwing up a lot. I tried to get medical care by asking another guy to beat on the door. He beat on the door for 20–30 minutes, but no one responded. I had to call my aunt to get some help. She and several other members of my family called the medical office to try to get me some medical attention. Guards finally came on the line to check on me, and I told them to call medical. They kept asking me why, but one of the guards finally called medical. The nurse was mad at
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me when she got to the line. She just checked my temperature and blood pressure, then gave me Tylenol and another pill for three days. I don’t know what that pill was, and I didn’t have a temperature. The nurse left immediately after.
18. We’re locked in our cells all day. It feels like we’re on lockdown, even though we haven’t done anything wrong. We often need to knock on the door to the line to get the guards to let us out of our cells. Some guards let us out of our cells one at a time for one hour each day, but other guards—like Smith and a new guard—give us only 15 to 30 minutes out of our cells each day like we’re on disciplinary segregation. Some days, the guards don’t give us water, either.
19. The day room on the line has a shower, toilet, table, and three phones. It doesn’t have a TV, even though we should have one because we’re not on discipline. Sometimes, the guards will bring us the newspaper, and we have to share one copy of the paper among all the men on the line.
20. We don’t get any cleaning products or chemicals to clean our cells. The guards bring chemicals every few days, but they don’t let us use them on our cells. We can only use them to clean the hallways.
21. About once a week, we get some purple chemicals to clean the phones. I don’t know what the chemicals are. Otherwise, we have to clean the phones with soap and water. When I want to use the phone, I put one of my socks on it to protect myself.
22. We mostly have to clean everything with soap and water, including door handles. We rarely get any chemicals for cleaning.
23. The guards don’t clean the shower either. The shower has only cold water in it, and the prison hasn’t fixed this yet. It’s too cold to shower in, so I don’t use it much. I usually just take a bath out of the sink in my cell. The shower also leaks all over the floor and runs down the hallway.
24. We’re supposed to get soap every week from the prison, but I didn’t get it during my first two or three weeks on B3. The guards passed out supplies on or around May 13th and May 20th, but that’s the only time they’ve done that since I’ve been on B3. They’re supposed to bring us soap, toilet paper, toothpaste, a toothbrush, and a razor every week, but they haven’t brought everything every week while I’ve been on lockdown. Some weeks, we get soap and toilet paper, other weeks we get different supplies.
25. A bar of soap usually lasts me about four to five days in the jail. I tried to buy supplies from the commissary when the jail didn’t bring us supplies, but I never got my order and they just put the money back on my books. My mother or my friends put money on my books so I can get hygiene supplies and extra food, but I can’t get any of those things back here.
26. The guards often wear masks, gloves, and bodysuits on B3, but not always. They didn’t always wear masks and gloves on F5, and I don’t recall seeing them wear body suits very often on F5 either. Some shifts did more often than others, and some shifts didn’t at all.
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27. The prison gave us bandanas to use as masks back in April when I was on F5. The guards try to swap them out every week, but I don’t trust them to clean the bandana and the ones they’re trying to hand out look used. A few days ago, guards brought us cloth masks that hook behind your ears, and they swapped those out today too.
28. I have asked the guards to bring me grievance forms, but they won’t do it. I keep asking, and I got into it with a guard about the forms. He kept saying that he didn’t have any and needed to make copies. I never got any copies from any of the guards I asked for grievance forms.
29. I’m really stressed on B3 because I should be home, but I’m stuck here on a parole hold and I’m locked in a cell around sick people without any way to watch TV or connect with the world outside when I want to.
30. If I was released into the community, I would stay with my mother. I have my own room in her house where I can quarantine if I need to. I will also be able to stay away from people who are sick and buy myself alcohol-based cleaning supplies. I will have access to clean water, healthy food, and medical care of my choice if I need it.
This declaration was orally sworn to by Joseph Williams on May 22, 2020 because the East Baton Rouge Parish Prison is currently not permitting documents to be exchanged for signature. Under penalty of perjury, I declare that I have read the foregoing in its entirety to Joseph Williams on May 22, 2020.
By: Miriam Nemeth Date: May 22, 2020
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EXHIBIT 9

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Case 3:20-cv-00278-BAJ-SDJ Document 21-13 05/28/20 Page 1 of 4
EXHIBIT 10

Case 3:20-cv-00278-BAJ-SDJ Document 21-13 05/28/20 Page 2 of 4
DECLARATION OF DEVONTE STEWART
I, Devonte Stewart, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746.
1. My name is Devonte Stewart. I am 25 years old and of sound mind.
2. I am currently detained pretrial at the East Baton Rouge Parish Prison in East Baton Rouge, Louisiana. I have been in the jail since January 22, 2019. I’m stuck in the jail because I can’t afford my $24,000 bail. The judge never asked me how much bail I could afford.
3. Before I was arrested, I lived in Shreveport with my mother. I worked in Baton Rouge providing security at Mellow Mushroom and serving at LSU football games one to three days a week. When I worked in Baton Rouge, I would stay with some friends in town. I have one daughter who is less than a year old.
4. Before about April 27, 2020, I was confined on the Q7 line.
5. Around April 13, 2020, I began feeling sick. I had chills, I threw up, I couldn’t eat for four days, and I had body aches and pain in my back. Even though they probably noticed my symptoms on their twice-daily pill call, the nurses didn’t do anything to help me. About two weeks later, I was feeling better, but I still had wet and dry coughs.
6. I put in sick calls a couple days before April 27th to try to get some help from the medical staff for my lingering cough. The nurses tested me for coronavirus and told me I had to go to the coronavirus quarantine line.
7. About 30 minutes later, the guards moved me to solitary confinement on the B3 line, where other sick people were. They moved me before they even got my test results. The guards didn’t tell me how long I would be back there. They just told me I needed to test negative twice before I could go back to Q7.
8. We’re not allowed to leave B3 once we get on the line, at least until we test negative for coronavirus twice. I’ve missed three court dates while I’ve been in solitary confinement because the guards never came and got me for court.
9. I wasn’t told my test results until I’d been on the line for around 10 days. I tested positive, according to the guard who told me my results. The nurses didn’t tell me my results, and I never got any paperwork with my test results. I took a second test after I’d been on the line about 13 days. I tested positive, but I never got my paperwork for those results either. I haven’t gotten to take any more tests since then.
10. I put in a medical form to get the paperwork with my coronavirus test results, but they won’t give it to me. I don’t know why they won’t give me my own medical records.
11. I am confined in cell 6 on the B3 line and share the cell with one or two other people at any given time since I’ve been back here. Our cell is very small, with only about three or
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four feet between the bunk beds against either wall. If we stand up in front of our beds, we are all standing face to face.
12. Every guy who has lived in my cell with me while I’ve been on this line has tested positive for coronavirus at some point while they’re back here.
13. We’re locked in our cells all day, and each person is let out of their cells one at a time during the day. Our cell gates lock while we’re in them, so we can’t get out unless the guards let us out. We can get water from the sinks in our cells, but the water isn’t very clear and looks like salt water. I still drink it, though, because I don’t want to get dehydrated on lockdown.
14. The cells on the line are close together. They’re just separated by a thin metal wall that’s about an inch thick. We can reach through the bars of our cell and into the bars of the cells next to us. We pass food, books, and papers this way.
15. We’re allowed out of our cells for about 30 minutes most days. It’s been getting worse while I’ve been on the line—lately, the guards only let us out for about 15 minutes a day. I don’t get enough time while I’m out of my cell to call my family, and I can’t call them whenever I want to, like I could on Q7.
16. The guards threaten to spray us with mace and beat on us if we try to get more hall time, or if we call them out. I know that Sergeant Braxfort beat up another guy in coronavirus lockdown on B1. The guards almost maced Cody Crump on my line on May 19th too.
17. The guards don’t check on us that often. Some of the guards come every hour or two, but others—including Braxfort, Smith, and some of the new deputies—don’t come back here for about five hours at a time.
18. We don’t have a TV on the line. The prison took away a lot of our privileges back here even though we’ve done nothing wrong.
19. We also can’t get commissary, which we need for hygiene supplies and snacks. I tried to order commissary the first week I got on B3, but they didn’t bring me my order and just put the money back on my books. The guards won’t tell us why we can’t get commissary. I think it’s because the people who work commissary are scared to come back here because we’re high risk.
20. Our shower is so cold that we can’t really use it. I’ve never seen anyone clean the shower.
21. We don’t get many supplies to keep the line clean. The guards only bring us bleach about two times a week. The other days, the mop bucket has some purple chemicals in it. I don’t know what the chemicals are. We don’t get any gloves. We have to pick up the trash and try to keep clean with our bare hands and just wash our hands after. The guards spray the phone with disinfecting spray about two times a week, but that’s it. When I need to use the phone, I have to put a t-shirt or a sock around it.
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22. The other night, we saw a large rat jump out of the locker in cell 5, the cell next to me. The rat was bigger than my foot.
23. The nurses take our temperature twice a day on B3, in the morning and at 8pm. My temperature has never been over 100 degrees Fahrenheit.
24. We don’t get any medical care for coronavirus on B3. The nurses just give us a vitamin C pill and water twice a day.
25. I have pain in my back, arm, and leg from past accidents. The nurses don’t do anything about these issues except give me Tylenol. They give us Tylenol for everything. I asked them for extra medicine, and they said my injuries are not serious enough and they need paperwork to treat them.
26. If someone is having medical issues, we have to rack the bars, but the guards often don’t hear us or don’t come fast enough. I’m worried that someone could die back here before we could get any medical help on the line.
27. I tried to file grievances about the conditions on B3, but the guards wouldn’t bring me any grievance forms. They told me they didn’t have any.
28. It’s really tough being in lockdown. I’m depressed, angry, and stressed back here. And I’m often very hungry, too.
29. If I was released into the community, I would stay with my mother in Shreveport. I have my own bedroom in her house where I can quarantine if I need to. I will also be able to stay away from people who are sick and buy myself alcohol-based cleaning supplies. I will have access to clean water, healthy food, and medical care of my choice if I need it.
This declaration was orally sworn to by Devonte Stewart on May 22, 2020 because the East Baton Rouge Parish Prison is currently not permitting documents to be exchanged for signature. Under penalty of perjury, I declare that I have read the foregoing in its entirety to Devonte Stewart on May 22, 2020.
By: Miriam Nemeth Date: May 22, 2020
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 Case 3:20-cv-00278-BAJ-SDJ Document 8 05/27/20 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

CLIFTON BELTON, JR., JERRY BRADLEY, CEDRIC FRANKLIN, CHRISTOPHER ROGERS, JOSEPH WILLIAMS, WILLIE SHEPHERD, DEVONTE STEWART, CEDRIC SPEARS, DEMOND HARRIS, and FORREST HARDY, individually and on behalf of all others similarly situated,

Plaintiffs,

Case No. 3:20-cv-000278-BAJ-SDJ

v.

SHERIFF SID GAUTREAUX, in his official capacity as Sheriff of East Baton Rouge; LT. COL. DENNIS GRIMES, in his official capacity as Warden of the East Baton Rouge Parish Prison; CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE,

Defendants.

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

For the reasons set forth in Plaintiffs’ Brief in Support of Motion for Class Certification,

attached below, Plaintiffs request that this Court certify a class, pursuant to Federal Rule of Civil

Procedure 23(b)(2), as well as three subclasses. This class action seeks declaratory and injunctive

relief to require Defendants to implement procedures that provide basic, reasonable protective

measures and medical care for Plaintiffs to keep them reasonably healthy and safe from contracting

the novel coronavirus and its resulting disease, COVID-19, while in custody. It also seeks a writ

of habeas corpus ordering the immediate release of certain people with underlying medical

conditions (constituting one of the subclasses) making them so vulnerable to COVID-19 that no

procedures could be implemented quickly or successfully enough to protect them.

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Plaintiffs, therefore, seek to certify one class with three subclasses as follows: • The Class (“the Jail Class”) is defined as: “All current and future persons detained at
the East Baton Rouge Parish Prison during the course of the COVID-19 pandemic.” • The “Pre-trial Subclass” is defined as: “All members of the Jail Class who have not yet
been convicted of the offense for which they are currently held in the jail.” • The “Post-Conviction Subclass” is defined as: “All members of the Jail Class who
have been sentenced to serve time in the jail or who are otherwise in the jail as the result of an offense for which they have already been convicted.” • The “Medically Vulnerable Subclass” is defined as: “All members of the Jail Class who are also sixty-five years old or older, or who, regardless of age, experience an underlying medical condition that places them at particular risk of serious illness or death from COVID-19, including but not limited to (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure, and coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; (k) severe obesity (a body mass index above 40); and/or (l) a current or recent (last two weeks) pregnancy.” Plaintiffs further request that: (1) Clifton Belton Jr., Jerry Bradley, Cedric Franklin,
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Christopher Rogers, Joseph Williams, Willie Shepherd, Devonte Stewart, Cedric Spears, Demond Harris, and Forrest Hardy are appointed as Class Representatives for the Jail Class; (2) Clifton Belton Jr., Christopher Rogers, Joseph Williams, Willie Shepherd, Devonte Stewart, Cedric Spears, Demond Harris, and Forrest Hardy are appointed as Class Representatives for the Pre-trial Class; (3) Jerry Bradley and Cedric Franklin are also appointed as Class Representatives for the Post-Conviction Class; and (4) Clifton Belton, Jr., Cedric Franklin, and Willie Shepherd are also appointed as Class Representatives for the Medically Vulnerable Class.
Plaintiffs further request that their undersigned attorneys be appointed as class counsel pursuant to Federal Rule of Civil Procedure 23(g).
Respectfully submitted, this 27th day of May, 2020.

/s/ David J. Utter David J. Utter (LA Bar No. 23236) William R. Claiborne (GA Bar No. 126363)* FAIR FIGHT INITIATIVE 410 East Bay Street Savannah, Georgia 31401 (912) 236-9559 Telephone (912) 236-1884 Facsimile david@fairfightinitative.org will@fairfightinitative.org Attorneys for Plaintiffs
*Pro Hac Vice motion pending

/s/Miriam R. Nemeth______________ Thomas B. Harvey (MBE #61734MO)* Miriam R. Nemeth (DC Bar No. 1028529)** Tiffany Yang (DC Bar No. 230836)* ADVANCEMENT PROJECT NATIONAL OFFICE 1220 L Street NW, Suite 850 Washington, DC 20005 (202) 728-9557 Telephone tharvey@advancementproject.org mnemeth@advancementproject.org tyang@advancementproject.org Attorneys for Plaintiffs

*Pro Hac Vice motions pending ** Lead Attorney for Plaintiffs

/s/ Lillian S. Hardy______________ Lillian S. Hardy (DC Bar No. 991282)* Hogan Lovells US LLP 555 Thirteenth Street NW Washington, DC 20004 (202) 637-5884 Telephone lillian.hardy@hoganlovells.com Attorneys for Plaintiffs

/s/ William P. Quigley William P. Quigley (LA Bar No. 00769) Loyola University New Orleans 7214 St. Charles Avenue Campus Box 902 New Orleans, LA 70117 Attorney for Plaintiffs
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*Pro Hac Vice motion pending
/s/ Baher Azmy Baher Azmy (NY Bar No. 2860740)* Omar Farah (NY Bar No. 4641247)* Brittany Thomas (NY Bar No. 5683834)* CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 11201 (212) 614-6427 Telephone bazmy@ccrjustice.org ofarah@ccrjustice.org bthomas@ccrjustice.org Attorneys for Plaintiffs
*Pro Hac Vice motions forthcoming
CERTIFICATE OF SERVICE
I hereby certify that on May 27, 2020 a copy of the foregoing was sent to all parties via electronic mail upon the following:
Michael P. Schillage Assistant Parish Attorney Office of the East Baton Rouge Parish Attorney 222 St. Louis Street, Suite 902 Baton Rouge, LA 70803
MSchillage@brla.gov
Catherine St. Pierre Erlingson Banks, PLLC
One American Place 301 Main Street Suite 2110
Baton Rouge, LA 70801 cstpierre@erlingsonbanks.com
/s/ David J. Utter David J. Utter
4

Case 3:20-cv-00278-BAJ-SDJ Document 8-1 05/27/20 Page 1 of 32

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

CLIFTON BELTON, JR., JERRY BRADLEY, CEDRIC FRANKLIN, CHRISTOPHER ROGERS, JOSEPH WILLIAMS, WILLIE SHEPHERD, DEVONTE STEWART, CEDRIC SPEARS, DEMOND HARRIS, and FORREST HARDY, individually and on behalf of all others similarly situated,

Plaintiffs,

Case No. 3:20-cv-000278-BAJ-SDJ

v.

SHERIFF SID GAUTREAUX, in his official capacity as Sheriff of East Baton Rouge; LT. COL. DENNIS GRIMES, in his official capacity as Warden of the East Baton Rouge Parish Prison; CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE,

Defendants.

PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-00278-BAJ-SDJ Document 8-1 05/27/20 Page 2 of 32
TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION ...........................................................................................................................6 BACKGROUND AND FACTS ......................................................................................................7
I. All Plaintiffs and Putative Class Members Are Being Detained in Extraordinarily Unsafe Conditions that Cannot Protect Them From this Global Pandemic...............................................................................................................7
II. Plaintiffs Seek Class-Wide Prospective Relief. ..............................................................13 ARGUMENT .................................................................................................................................14
I. The Proposed Class Is So Numerous That Joinder of All Proposed Class Members Is Impracticable. .............................................................................................15
II. Claims by The Proposed Class Raise Common Questions That Will Generate Common Answers. ..........................................................................................17
III. The Named Plaintiffs’ Claims Are Typical of the Claims of the Proposed Class. ...............................................................................................................21
IV. The Named Plaintiffs Are Competent and Dedicated Class Representatives. ..............................................................................................................24
V. Certification of the Class for Prospective Relief is Appropriate Under Rule 23(b)(2)...................................................................................................................26
VI. Plaintiffs’ Counsel Should Be Appointed Class Counsel Under Rule 23(g). ...............................................................................................................................29
CONCLUSION ..............................................................................................................................30 CERTIFICATE OF SERVICE ......................................................................................................31
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TABLE OF AUTHORITIES
Page(s)
CASES:
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).................................................................................................................22
Ball v. LeBlanc, 792 F.3d 584 (5th Cir. 2015) .............................................................................................22, 23
Brown v. Plata, 563 U.S. 493 (2011)...........................................................................................................10, 14
Butler v. Suffolk Cty., 289 F.R.D. 80 (E.D.N.Y. 2013) ...............................................................................................14
Cameron v. Bouchard, No. 20-10949, 2020 WL 2569868 (E.D. Mich. May 21, 2020) ..............................................18
In re Chinese-Manufactured Drywall Prods. Liab. Litig., 424 F. Supp. 3d 456 (E.D. La. 2020) ............................................................................... Passim
Cleven v Mid-America Apartment Cmtys., Inc., 328 F.R.D. 452 (W.D. Tex. 2018) .....................................................................................13, 14
Decoteau v. Raemisch, 304 F.R.D. 683 (D. Colo. 2014) ..............................................................................................14
In re Deepwater Horizon, 739 F.3d 790 (5th Cir. 2014) .........................................................................................9, 13, 14
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189 (1989)...................................................................................................................8
Dockery v. Fischer, 253 F. Supp. 3d 832 (S.D. Miss. 2015)............................................................................ passim
Dunn v. Dunn, 318 F.R.D. 652 (M.D. Ala. 2016) ............................................................................................17
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982).................................................................................................................17
Henderson v. Thomas, 289 F.R.D. 506 (M.D. Ala. 2012) ............................................................................................14
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Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470 (5th Cir. 1982) ...................................................................................................19
Ind. Prot. & Advocacy Servs. Comm’n v. Comm’r, Ind. Dep’t of Corr., No. 1:08-cv-01317-TWP-MJD, 2012 WL 6738517 (S.D. Ind. Dec. 31, 2012) ......................14
J.D. v. Nagin, 255 F.R.D. 406 (E.D. La. 2009)...................................................................................11, 15, 24
Jenkins v. Raymark Indus., Inc., 782 F.2d 468 (5th Cir. 1986) .............................................................................................13, 17
Johnson v. City of Opelousas, 658 F.2d 1065 (5th Cir. 1981) .......................................................................................9, 10, 24
Jones v. Gusman, 296 F.R.D. 416 (E.D. La. 2013).............................................................................10, 11, 15, 18
Jones v. Singing River Health Servs. Found., 865 F.3d 285 (5th Cir. 2017) ...................................................................................................19
Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48 (3d Cir. 1994).........................................................................................................22
Lewis v. Cain, 324 F.R.D. 159 (M.D. La. 2018) ..................................................................................... passim
M.D. v. Perry, 294 F.R.D 7 (S.D. Tex. 2013)..................................................................................................10
Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620 (5th Cir. 1999) .............................................................................................10, 13
Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014) .............................................................................................14, 18
Pederson v. La. State Univ., 213 F.3d 858 (5th Cir. 2000) .............................................................................................10, 11
Redmond v. Bigelow, No. 13-cv-393, 2014 WL 2765469 (D. Utah June 18, 2014) ..................................................14
Richard v. Flowers Foods, Inc., No. 6:15-2557, 2018 WL 5305377 (W.D. La. Aug. 13, 2018)..............................11, 17, 19, 20
Rooney v. EZCORP, Inc., 330 F.R.D. 439 (W.D. Tex. 2019) .....................................................................................19, 20
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Rougier v. Applied Optoelectronics, Inc., No. 4:17-cv-02399, 2019 WL 6111303 (S.D. Tex. Nov. 13, 2019) ........................................11
Sanchez v. Young Cty., Tex., 956 F.3d 785 (5th Cir. 2020) .....................................................................................................2
Savino v. Souza, No. 20-10617-WGY, 2020 WL 1703844 (D. Mass. Apr. 8, 2020) .........................................18
Tennyson v. Villarreal, 801 Fed. App’x 295 (5th Cir. 2020) ..........................................................................................2
Vine v. PLS Fin. Servs., Inc., 331 F.R.D. 325 (E.D. Tex. 2019).............................................................................................13
Wal-Mart v. Dukes, 564 U.S. 338 (2011)......................................................................................................... passim
In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838 (6th Cir. 2013) .....................................................................................................9
Yates v. Collier, 868 F.3d 354 (5th Cir. 2017) .......................................................................................14, 21, 24
Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030 (5th Cir. 1981) .................................................................................................10
CONSTITUTIONAL PROVISIONS: U.S. Const. amend. IV ........................................................................................................... passim U.S. Const. amend. VIII......................................................................................................... passim RULES: Fed. R. Civ. P. 23 .......................................................................................................................9, 11 Fed. R. Civ. P. 23(a) ..................................................................................................1, 9, 17, 19, 21 Fed. R. Civ. P. 23(a)(1)......................................................................................................10, 11, 12 Fed. R. Civ. P. 23(a)(2)............................................................................................................13, 16 Fed. R. Civ. P. 23(a)(3)..................................................................................................................17 Fed. R. Civ. P. 23(a)(4)............................................................................................................19, 21 Fed. R. Civ. P. 23(b) ......................................................................................................................21
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Fed. R. Civ. P. 23(b)(2).......................................................................................................... passim Fed. R. Civ. P. 23(g) ............................................................................................................1, 24, 25 Fed. R. Civ. P. 23(g)(1)..................................................................................................................24 Fed. R. Civ. P. 23(g)(1)(A)(ii) .......................................................................................................24 Fed. R. Civ. P. 23(g)(1)(A)(iii) ......................................................................................................24 Fed. R. Civ. P. 23(g)(1)(A)(iv) ......................................................................................................24 Fed. R. Civ. P. 23(g)(1)(B) ............................................................................................................24 OTHER AUTHORITIES: Ctrs. for 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/downloads/guidance-correctional-detention.pdf ...............................................................3 Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97 (2009) ........................................................................................................13 Herbert B. Newberg et al., Newberg on Class Actions (3d ed. 1992) .....................................10, 11 William B. Rubenstein et al., Newberg on Class Actions (5th ed. updated 2019) ......11, 13, 14, 22 Lea Skene, Report: Inmate Deaths in East Baton Rouge Higher Than National Average; Jail Fails to Provide Adequate Protection, The Advocate (Aug. 15, 2018), https://www.theadvocate.com/baton_rouge/news/crime_police/article_96faf19 6-a02e-11e8-942c-33faf38f0e30.html .......................................................................................3 Peter Wagner & Emily Widra, No Need to Wait for Pandemics: The Public Health Case for Criminal Justice Reform, Prison Policy Initiative (Mar. 6, 2020), https://www.prisonpolicy.org/blog/2020/03/06/pandemic/..........................................12
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INTRODUCTION This case is about Defendants’ failure to protect the people detained under their custody in the East Baton Rouge Parish Prison (the “Jail”) from the novel coronavirus and its resulting infection, COVID-19. Defendants have failed to respond adequately to the urgent threat posed to people confined in the Jail during this growing and lethal pandemic, making it impossible for the detained class members to observe the precautionary steps necessary to keep themselves safe, such as social distancing, increased personal hygiene, sanitizing one’s environment, access to testing and other essential healthcare treatment, and wearing personal protective equipment. As a result of Defendants’ failure to protect the detained class members from these known risks, detainees in the Jail have been exposed and bear repeated increased exposure to a highly fatal infectious illness in violation of their constitutional rights under the Eighth and Fourteenth Amendments. At least two detainees have already been hospitalized for COVID-19, and research suggests the number of cases inside the Jail is exponentially increasing. See Compl. ¶¶ 78, 101. Plaintiffs challenge these unconstitutional conditions and now move for class certification under Federal Rules of Civil Procedure 23(a) and 23(b)(2). Named Plaintiffs also move for appointment of the undersigned as class counsel pursuant to Rule 23(g). Class certification is warranted because Plaintiffs seek declaratory and injunctive relief to address the unconstitutional conditions that prevail throughout the Jail. These conditions pose similar health risks to Plaintiffs and all putative class members by exposing them (as well as jail staff and the public at large) to a serious risk of infection and, as a result, serious and potentially lasting bodily harm—up to and including death. Resolving Plaintiffs’ claims requires answering the same common questions of law and fact by finding that the conditions in the Jail violate the
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Eighth and Fourteenth Amendments to the U.S. Constitution.1 A declaratory judgment and injunction for the entire class will address these issues for all class members. The size and nature of the Jail means that there are far too many class members, and the class and subclasses are too fluid, to efficiently resolve these questions individually.
The Named Plaintiffs and their counsel are dedicated to vindicating the constitutional rights of the proposed class members, even if the Named Plaintiffs’ cases are resolved through their release or otherwise. Counsel will provide quality representation for the interests of proposed class members—just as they have for other similar classes of incarcerated people around the nation.
BACKGROUND AND FACTS I. All Plaintiffs and Putative Class Members Are Being Detained in
Extraordinarily Unsafe Conditions that Cannot Protect Them From this Global Pandemic.2 The Jail is a ticking time bomb—the conditions inside the Jail create a breeding ground for a mass outbreak of the COVID-19 virus. The Jail is designed to house over 1500 detainees, all of whom—members of both the PreTrial and Post-Conviction Subclasses—are crammed in a tight, dilapidated space.3 Within this space, prisoners not only sleep, but work, eat, exercise, and perform other functions of daily life alongside each other. As the Centers for Disease Control and Prevention has recognized, “these
1 As explained in more detail in Plaintiffs’ Amended Class Action Complaint (the “Complaint” or “Compl.”) and Brief in Support of Emergency Motion for Temporary Restraining Order (“Temporary Restraining Order Brief” or “TRO Br.”), the constitutional standard with respect to the Pre-trial Subclass is governed by the Fourteenth Amendment rather than the Eighth Amendment. Accordingly, that subclass need only prove that the medical need is objectively serious and the Prison’s response inadequate. See Tennyson v. Villarreal, 801 Fed. App’x 295, 295 (5th Cir. 2020). In addition, it is clear that “multiple policies interacted to cause constitutionally inadequate confinement conditions” for pretrial detainees at the Jail, making relief appropriate. Sanchez v. Young Cty., Tex., 956 F.3d 785, 796 (5th Cir. 2020). 2 Additional facts are provided in more detail in Plaintiffs’ brief in support of their motion for temporary restraining order. TRO Br. at 3-24. 3 See Ex. 1 (Photo of Q9, one of the Jail’s dorms pre-pandemic).
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components present[ ] unique challenges for control of COVID-19 transmission.”4 By its nature, the Jail presents numerous opportunities for the virus to spread exponentially amongst the incarcerated or detained class members and other individuals who work in or visit the Jail. Even prior to the COVID-19 crisis, there were complaints that the East Baton Rouge Parish Prison, which was built in 1965, was “outdated” and provided “substandard conditions.”5 Now, in the face of an unprecedented health crisis, Defendants have failed to implement proper screening, testing, or quarantine processes to adequately protect the people detained in the Jail.
Medically-necessary social distancing is impossible inside the Jail. The detainees sleep on bunkbeds in cells or in dormitory-style rooms, forcing class members to sleep less than two feet apart from each other. Rogers Decl. ¶ 496; Hardy Decl. ¶ 6. During roll call and shift change, which occurs twice daily and lasts up to an hour each time, detainees are crammed into common areas and lined-up close together. Rogers Decl. ¶¶ 47-48; Bradley Decl. ¶ 4. The same is true for pill call when the detainees must line up to receive their required prescriptions from the nurse. And the toilets, sinks, and shower heads are so close together that detainees can easily touch the person next to them. Hardy Decl. ¶ 6 (“If two guys are using the toilets next to each other, their legs could touch.”). Detainees, including specifically the Medically Vulnerable Subclass, therefore remain in close contact with other class members at all times during their confinement in the jail.
Worse yet, jail staff have largely ignored the spread of COVID-19 within the jail. Jail staff
4 Ex. 3 to Compl., Ctrs. for 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/downloads/guidance-correctional-detention.pdf. 5 Lea Skene, Report: Inmate Deaths in East Baton Rouge Higher Than National Average; Jail Fails to Provide Adequate Protection, The Advocate (Aug. 15, 2018), https://www.theadvocate.com/baton_rouge/news/crime_police/article_96faf196-a02e-11e8-942c-33faf38f0e30.html. 6 Unless otherwise cited, cites to declarations refer to those filed with the Memorandum in Support of Plaintiffs’ Emergency Motion for Temporary Restraining Order.
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provide detainees with only small, hotel-sized bars of soap that is insufficient for the routine handwashing and cleaning necessary to mitigate the spread of COVID-19; detainees are forced to pay for additional hygiene or personal sanitation supplies. See Harris Decl. ¶ 23. To clean their spaces, detainees must ask jail staff for a mop and water—there is no other way for detainees to keep their cells clean. See, e.g., Rogers Decl. ¶ 25. Jail staff do not provide disinfectants or towels to detainees to clean their cells, and on occasion have assaulted detainees when they question this. Rogers Decl. ¶¶ 26, 44.
Given the lack of sanitation supplies provided inside the Jail, the facilities are insufficiently and irregularly cleaned. Detainees are forced to share toilets, sinks, showers, and phones without disinfection between each use. Rogers Decl. ¶¶ 32, 58; Hardy Decl. ¶¶ 17-18; Shepherd Decl. ¶ 17. Many detainees place a sock over their hand when using the phone to avoid contamination while talking to their loved ones. Hardy Decl. ¶ 17; Shepherd Decl. ¶ 16. Detainees estimate that the showers are cleaned at best once a day, and sometimes as little as once a week, which is woefully insufficient during normal times, and especially so during a global pandemic. See Hardy Decl. ¶ 18; Williams Decl. ¶ 23; Shepherd Decl. ¶ 27. The shower mats have mold on them and the showers are rusted. Rogers Decl. ¶¶ 27, 58.
The detainees are not provided with sufficient personal protective equipment. According to reports, face masks were inconsistently provided and are not regularly replaced. See, e.g., Harris Decl. ¶ 16; Hardy Decl. ¶ 20. Some guards wear masks and gloves while they deliver the food, and others do not. Hardy Decl. ¶ 21; Rogers Decl. ¶ 35. None of the detainees have been provided gloves because gloves are considered contraband. Rogers Decl. ¶ 12; Shepherd Decl. ¶ 19. Detainees even report that those who test negative are in contact with those who test positive for several days. See Bradley Decl. ¶ 18; Shepherd Decl. ¶ 20. Even worse, detainees who report
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symptoms are ignored and left on the line because “no one had the virus on [their] side of the prison.” Rogers Decl. ¶ 8. See id. ¶¶ 7-10 (Christopher Rogers remained on the F5 line for almost a week after reporting symptoms. After filing a medical request, he tested positive and was moved to B3); see also Hardy Decl. ¶ 13; Harris Decl. ¶ 6.
Jail staff do not promptly nor properly test for COVID-19 symptoms. See, e.g., Rogers Decl. ¶ 8; Hardy Decl. ¶¶ 10-12; Harris Decl. ¶ 6. Universal temperature checks ceased in early May and only detainees who exhibit symptoms receive a temperature check or a COVID-19 test. Shepherd Decl. ¶ 24; Hardy Decl. ¶ 10. Jail staff also routinely ignore and dismiss sick inmates’ requests for medical attention—and even act as a barrier between detainees and healthcare personnel. See Shepherd Decl. ¶ 10 (“First, a Lieutenant would come back before the medical staff to see if it was a real problem. Then they would call medical staff to come back”); Rogers Decl. ¶ 60. Detainees are not tested until they are “really sick.” Hardy Decl. ¶ 11.
Detainees who test positive for COVID-19 are moved to recently re-opened cellblocks that shut down in 2018 because they were deemed unsafe. See Harris Decl. ¶ 8; Rogers Decl. ¶ 13; Bradley Decl. ¶ 9. Sick detainees are held in solitary confinement and are on lockdown. See Williams Decl. ¶¶ 6-7. Yet despite this, the cells are so close together that detainees pass food and other items to each other by reaching through the bars, potentially spreading the virus. Williams Decl. ¶ 9; Rogers Decl. ¶ 17; Harris Decl. ¶ 9.
Medical treatment at the Jail has been inconsistent and inadequate for years and COVID19 has only exacerbated existing issues. Compl. ¶¶ 4, 5, 72, 101-08. Nurses are supposed to visit this line twice a day but sometimes do not visit at all during the day, leaving untrained jail staff to attend to sick detainees. See, e.g., Rogers ¶ 37. Furthermore, treatment only consists of sinus pills, Tylenol and a cup of water. Rogers Decl. ¶¶ 37-38.
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Medically vulnerable detainees face significant risks at the Jail. Willie Shepherd has high blood pressure and a bleeding ulcer. Shepherd Decl. ¶ 4. Around April 12, 2020, he reported that he had a headache and body aches. Id. ¶ 7. Two days later, a Jail nurse administered a COVID19 test to Shepherd, which nearly a week later returned a positive result. Id. For days, Shepherd remained in the Q3 line with 45 other detainees while he exhibited symptoms of COVID-19. Id. ¶¶ 5-7. Shepherd was transferred to the B3 Block, and was placed in a cell with three other detainees, one of whom had tested negative for COVID-19. Id. ¶ 8. Shepherd describes the medical care he received in the B3 Block:
We didn’t get any real medical care on B3. Medical staff came back twice a day for pill calls, when they would give us our prescription medications. I got medications for my high blood pressure at pill call. But all they gave us for coronavirus was Tylenol. After about a week and a half on B3, the nurses also began giving us vitamins. That was all we got. We didn’t even get Gatorade, and we barely got any water. I don’t know why they moved us if they weren’t going to do anything for us but give us Tylenol and vitamins. Id. at 9. The situation, however, is not just dire for those who are medically vulnerable—all detainees are at risk. Mr. Joseph Williams transferred to lockdown after recording a temperature of approximately 100 degrees on April 24, 2020 and testing positive for COVID-19 on a test administered the next day. Williams Decl. ¶¶ 5, 7, 13. He shares his cell with two other detainees, but it is impossible for the men to stay six feet apart because of the size of the cell. Id. ¶ 10. Several days after Williams’ positive test, he was given Tylenol to manage the symptoms. Other detainees around him were not as fortunate; Williams describes how another detainee beat on the door of his cell for 15-20 minutes to get medical attention for one of the other detainees, until the guards finally stopped ignoring him. Id. ¶ 16. And Williams describes his own experience when he suffered chest and stomach pains, including vomiting: I tried to get medical care by asking another guy to beat on the door. He beat on
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the door for r 20-30 minutes, but no one responded. I had to call my aunt to get some help. She and several other members of my family called . . . to try to get me some medical attention. Guards finally came on the line to check on me, and I told them to call medical. They kept asking me why, but one of the guards finally called medical. The nurse was mad at me when she got to the line. She just checked my temperature and blood pressure, then gave me Tylenol and another pill for three days. I don’t know what that pill was, and I didn’t have a temperature. The nurse left immediately after.
Id. ¶ 17.
Detainees are not able to protect themselves because the jail staff have done little to educate
the detainees about the pandemic; detainees are instead forced to rely on the news or information
from loved ones—when they can access it—for details about the virus and how to best protect
themselves. Although some signs about keeping clean and not touching their faces have been
posted, jail staff have not explained the symptoms or warning signs of the virus to detainees.
Spears Decl. ¶ 29; Hardy Decl. ¶ 23 (“The guards don’t give us any information or updates about
the coronavirus, and they didn’t tell us about washing our hands.”). As detainee Cedric Spears
explains:
The guards don’t tell us anything about the coronavirus or how to take care of ourselves during the pandemic. We haven’t seen the Warden since the beginning of the pandemic, and no ranking officer comes back to tell us anything. The guards mostly just try to get off the line quickly. They act like they’re in danger being around us, but they’re the ones who go into the community and get exposed to the virus. We might have had a sign up with information about coronavirus at one point, but I don’t think I saw signs on each of the lines I was on. We try to get our information about the coronavirus when we watch the news—there are two 32-inch tvs in the day room.
Spears Decl. ¶¶ 29-30. But those detainees who are on lockdown are prohibited from going to the
day room or watching television, leaving them with no “information about the coronavirus, how
to protect ourselves, or what was going on in the world.” Rogers Decl. ¶ 33; see also Williams
Decl. ¶ 29. Demond Harris summarizes the feelings of the detainees:
I think the jail staff is trying to create an atmosphere of fear around lockdown so that guys won’t report symptoms to avoid going to lockdown. Why else would
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they take all of our privileges away? They took away almost all of our privileges on lockdown, including commissary, access to hygiene products, mail, open access to phones, and tvs. If people on the line heard about that, they wouldn’t want to tell the nurse they were sick and they would be scared to go to lockdown. So they kept their symptoms quiet, and the jail staff let the virus spread throughout the jail. I think this is how the jail has kept their positive-case count down. Harris Decl. ¶ 32. Detainees are at a significant risk of contracting and spreading COVID-19 because of the deplorable conditions at the jail. Defendants created and have now perpetuated an environment in which the named Plaintiffs and all class members face grave risks to their health. II. Plaintiffs Seek Class-Wide Prospective Relief. The Jail’s policies and practices violate the rights of all class members to be free from cruel and unusual punishment and the resulting rights, once detained, to be held in a facility that does not present a substantial risk of serious harm. See DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989) (“[W]hen the State . . . restrains an individual’s liberty . . . [and] fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.”). Plaintiffs seek class-wide declaratory and injunctive relief holding unconstitutional the conditions under which the entire class is detained and ordering that those conditions be immediately and drastically improved. In the case of the Medically Vulnerable Subclass, given the immediate and severe health risks posed by the Jail’s conditions—conditions that cannot be abated rapidly or starkly enough to protect these high-risk individuals—Plaintiffs seek subclass-wide relief in the form of immediate release.
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ARGUMENT Under Rule 23 of the Federal Rules of Civil Procedure, the party seeking class certification must show that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the named parties are typical of the claims or defenses of the
class; and (4) the named parties will fairly and adequately protect the interest of the class. Fed. R. Civ. P. 23(a). The class must also satisfy the requirements of Rule 23(b)(2), that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” See infra Section V.
The Court must perform a “rigorous analysis” to determine whether to certify a class. WalMart v. Dukes, 564 U.S. 338, 351 (2011). However, certification is not a “dress rehearsal for the merits.” In re Deepwater Horizon, 739 F.3d 790, 811 (5th Cir. 2014) (citing In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 851-52 (6th Cir. 2013)). At the certification stage, Plaintiffs’ evidence need only “demonstrate that a particular contention is common, but not that it is correct.” In re Deepwater Horizon, 739 at 811; Lewis v. Cain, 324 F.R.D. 159, 167 (M.D. La. 2018) (noting that Rule 23 does not require Plaintiffs to show that the merits of questions common to the class will be decided in favor of the class).
Class certification is particularly favored when, as here, the Named Plaintiffs assert civil rights claims that are of a fleeting or transitory nature, such that mootness concerns would make it difficult or impossible for individuals to litigate the issues outside of the class context. See Johnson v. City of Opelousas, 658 F.2d 1065, 1070 (5th Cir. 1981) (“[W]e believe that the substantial risk
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of mootness presented by the facts of this dispute was sufficient to create a need for certification.”); see also Pederson v. La. State Univ., 213 F.3d 858, 867 n.8 (5th Cir. 2000) (“the substantial risk of mootness here created a necessity for class certification in this case”). The Supreme Court in the last decade has reaffirmed that claims regarding the constitutionality of hazardous prison conditions are amenable to class treatment. In Brown v. Plata, the Court affirmed a grant of injunctive relief to a class of tens of thousands of prisoners across multiple prisons in California who alleged “systemwide deficiencies in the provision of medical and mental health care that, taken as a whole, subject sick and mentally ill prisoners in California to a substantial risk of serious harm and cause the delivery of care in the prison to fall below the evolving standards of decency that mark the progress of a maturing society.” 563 U.S. 493, 551 (2011) (internal quotation marks and citation omitted).7
I. The Proposed Class Is So Numerous That Joinder of All Proposed Class Members Is Impracticable.
Plaintiffs’ proposed class is sufficiently numerous to make joinder impracticable. See Fed. R. Civ. P. 23(a)(1). The essence of the numerosity analysis is “whether joinder of all members is practicable in view of the numerosity of the class and all other relevant factors.” Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir. 1981).
Although there is no set number of people needed to meet the numerosity requirement, a class of more than 40 is presumptively adequate. Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999) (citing 1 Herbert B. Newberg et al., Newberg on Class Actions § 3.05, at
7 See also, e.g., M.D. v. Perry, 294 F.R.D. 7, 46-47 (S.D. Tex. 2013) (Certifying Rule 23(b)(2) class based on an allegation that Defendants inflicted “a unified harm to class members—an unreasonable risk of harm due to ineffective monitoring and planning because caseworkers are overburdened.”); Dockery v. Fischer, 253 F. Supp. 3d 832, 851-57 (S.D. Miss. 2015) (certifying class action regarding medical treatment and housing for prisoners in East Mississippi Correctional Facility); Jones v. Gusman, 296 F.R.D. 416, 464-67 (E.D. La. 2013) (certifying settlement class alleging deficiencies in parish jail health care).
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3–25 (3d ed. 1992) for the proposition that a class of more than forty members “should raise a presumption that joinder is impracticable”).
“Rule 23 does not provide a clear formula for determining whether the numerosity requirement has been met,” In re Chinese-Manufactured Drywall Prods. Liab. Litig., 424 F. Supp. 3d 456, 482 (E.D. La. 2020), and “[n]o specific number of claimants is required to sustain a class action . . . ” Richard v. Flowers Foods, Inc., No. 6:15-2557, 2018 WL 5305377, at *4 (W.D. La. Aug. 13, 2018). Rather, Plaintiffs only need provide “information from which the Court can reasonably conclude that the Class is so numerous that joinder is impracticable.” Rougier v. Applied Optoelectronics, Inc., No. 4:17-cv-02399, 2019 WL 6111303, at *5 (S.D. Tex. Nov. 13, 2019). This does not need to be an exact figure; “a good-faith estimate should be sufficient when the number of class members is not readily ascertainable.” In re Chinese-Manufactured Drywall, 424 F. Supp. 3d at 482.
The numerosity inquiry does not end with the quantity of putative class members; other factors also determine whether joinder is impractical. Pederson, 213 F.3d 858 at 868-69. In the prison context, where the population is “constantly in flux,” “the fact that the class includes unknown future members” “weighs in favor of certification.” See Jones, 296 F.R.D. at 465 (citing Pederson, 213 F.3d at 868); J.D. v. Nagin, 255 F.R.D. 406, 414 (E.D. La. 2009) (finding joinder impractical in light of shifting prison populations and “[t]he mere fact that the proposed class contains future members.”). The Court should also consider the “judicial economy arising from the avoidance of a multiplicity of actions.” 1 William B. Rubenstein et al., Newberg on Class Actions § 3:12 (5th ed. updated 2019).
The proposed class easily meets the Rule 23(a)(1) numerosity requirement. According to recent reporting, the jail population currently stands at approximately 1235 human beings. And
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approximately 86% of all people incarcerated in Louisiana’s prisons are pre-trial detainees, meaning that the Pre-Trial Subclass and the Post-Conviction Subclass each constitute approximately half of the class as whole.
As to the Medically Vulnerable Subclass, although its exact size cannot be known by Plaintiffs in advance, demographic data of prison populations more generally confirms that well over 30% of detained individuals typically suffer from conditions that render them medically vulnerable to the coronavirus.8 Several of the Named Plaintiffs, for example, fall within this category. See, e.g., TRO Ex. 9, Declaration of Clifton Belton, Jr. ¶ 3 (“Belton Decl.”); TRO Ex. 1, Declaration of Cedric J. Franklin ¶ 4 (“Franklin Decl.”); TRO Ex. 2, Declaration of Willie Shepherd ¶ 4 (“Shepherd Decl.”). Based on these demographics alone, it is safe to estimate that the Medically Vulnerable Subclass would number well over hundreds of people..
The Jail Class—and thus each of the subclasses—will continue to grow as law enforcement officers continue to arrest and detain individuals from the community during this extended health pandemic. In May 2020 alone, Baton Rouge police officers made over 180 arrests. The resulting class easily exceeds 900 people and the subclasses number more than 100 people, by the most conservative estimates. Because the number of potential plaintiffs in the proposed class and subclasses vastly exceeds the number who could be joined practicably, and because there are unknown future members of the class, Rule 23(a)(1) is satisfied here.
II. Claims by The Proposed Class Raise Common Questions That Will Generate Common Answers.
The claims asserted on behalf of the proposed class include common questions of law and fact that satisfy Rule 23(a)(2). Commonality requires that at least one of the class members’ claims
8 Peter Wagner & Emily Widra, No Need to Wait for Pandemics: The Public Health Case for Criminal Justice Reform, Prison Policy Initiative (Mar. 6, 2020),https://www.prisonpolicy.org/blog/2020/03/06/pandemic/.
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“depend upon a common contention” of fact or law such 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. WalMart, 564 U.S. at 350. These common questions must also “generate common answers apt to drive the resolution of the litigation.” Id. at 349 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)). Courts find common questions of both law and fact “at a high level of generality.” 1 William B. Rubenstein et al., Newberg on Class Actions § 3:19 (5th ed. updated 2019) (internal quotations and citation omitted).
“To satisfy the commonality requirement under Rule 23(a)(2), class members must raise at least one contention that is central to the validity of each class member’s claims.” In re Deepwater Horizon, 739 F.3d at 810. The threshold for commonality is “not demanding.” Mullen, 186 F.3d at 625. The Rule asks whether the disputed questions are capable of class-wide proof or resolution; claims need not be identical. Wal-Mart, 564 U.S. at 350 (“‘Even a single [common] question’ will do” (citation omitted)).
The test for commonality is not demanding, In re Chinese-Manufactured Drywall, 424 F. Supp. 3d at 482 (noting that standard for commonality is “easily met in most cases”) (citation omitted); Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 472 (5th Cir. 1986) (“The threshold of ‘commonality’ is not high.”); Vine v. PLS Fin. Servs., Inc., 331 F.R.D. 325, 332 (E.D. Tex. 2019) (same), and “does not require that all questions of law or fact raised in the litigation be common.” In re Chinese-Manufactured Drywall, 424 F. Supp. 3d at 482. Rather, “[t]he commonality requirement is satisfied if at least one issue's resolution will affect all or a significant number of class members.” Id. (citation omitted); Cleven v Mid-America Apartment Cmtys., Inc., 328 F.R.D. 452, 459 (W.D. Tex. 2018) (“the existence of some factual differences among class members will not defeat commonality if there is at least a single common question that ‘will resolve an issue that
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is central to the validity of each one of the claims in one stroke.’”) (citation and emphasis omitted). “Even a single common question will do.” In re Deepwater Horizon, 739 F.3d at 812 (citation omitted).
Additionally, commonality requires “a unified common policy, practice, or course of conduct that is the source of their alleged injury.” Dockery, 253 F. Supp. 3d at 846; 1 William B. Rubenstein et al., Newberg on Class Actions § 3:20 (5th ed. updated 2019) (“When the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected.”). The policy or practice at issue need not be formal or officially-adopted, Dockery, 253 F. Supp. 3d at 846, 853, and may be identified on the basis of custom or consistent practice. Id. (citation omitted). The failure to act may itself be a policy or practice. Id. at 848. “The critical question here is whether the government has failed to respond to a need . . . in such a manner as to show ‘deliberate indifference’ to the risk that not addressing the need will result in constitutional violations.” Id. at 847.
Accordingly, courts in the Fifth Circuit have repeatedly certified class actions in which incarcerated people challenge the circumstances or conditions of their detention.9 See, e.g., Yates v. Collier, 868 F.3d 354, 362 (5th Cir. 2017) (certifying injunctive class of inmates challenging the conditions of their confinement where they suffered from “excessive heat” and jail staff who are “deliberately indifferent to the risk posed to the inmates.”); Lewis, 324 F.R.D. at 176. (certifying class of inmates at Louisiana State Penitentiary alleging, inter alia, that the prison’s
9 Numerous courts outside of the Fifth Circuit have done the same. See, e.g., Brown, 563 U.S. at 506-08; Parsons v. Ryan, 754 F.3d 657, 681 (9th Cir. 2014); Decoteau v. Raemisch, 304 F.R.D. 683, 688-89 (D. Colo. 2014); Redmond v. Bigelow, No. 13-cv-393, 2014 WL 2765469, at *4 (D. Utah June 18, 2014); Butler v. Suffolk Cty., 289 F.R.D. 80, 98 (E.D.N.Y. 2013); Henderson v. Thomas, 289 F.R.D. 506, 511 (M.D. Ala. 2012); Ind. Prot. & Advocacy Servs. Comm’n v. Comm’r, Ind. Dep’t of Corr., No. 1:08-cv-01317-TWP-MJD, 2012 WL 6738517, at *18 (S.D. Ind. Dec. 31, 2012).
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medical care violated the Eighth Amendment prohibition of cruel and unusual punishment); Jones v. Gusman, 296 F.R.D. 416 (E.D. La. 2013) (certifying settlement class alleging deficiencies in parish jail health care); Dockery, 253 F. Supp. 3d at 839, 856-57 (certifying class of inmates alleging under Section 1983 that their conditions of confinement violated Eighth Amendment right to be free from cruel and unusual punishment); J.D., 255 F.R.D. at 417 (certifying class of inmates at juvenile detention center challenging dangerous conditions at detention center).
At the core of this case is the common course of conduct inflicting constitutional injury on each member of the proposed class: namely, permitting the unsafe and unhygienic conditions prevailing in the Jail and the concomitant risks of contracting COVID-19 created by those conditions. All class members suffer the same injury, namely an unconstitutional risk of exposure to an extraordinarily dangerous disease that can result in serious or fatal complications. And all members of the Medically Vulnerable Subclass share a greatly elevated risk of suffering death or permanent organ damage or failure should they contract the virus.
These injuries are “capable of classwide resolution,” Wal-Mart, 564 U.S. at 350 (emphasis added), because the Court can issue a single declaration finding that the conditions in the Jail are in violation of the Eighth and Fourteenth Amendments and ordering immediate remedies to address the conditions. And a single additional remedy mandating release of the Medically Vulnerable Subclass can address the increased risk to the subclass. Thus, this case goes far beyond the “single common question [that] will do.” Id. at 359 (internal quotation marks and citation omitted). Indeed, most questions of fact and law that will arise in this suit are common across the class. Among the most central common questions of fact are:
• What measures Defendants implemented in the Jail in response to the COVID-19 crisis;
• Whether the conditions in the Jail are sufficient to prevent an unreasonable risk of
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the spread of COVID-19;
• Whether Defendants’ practices during the COVID-19 pandemic expose detainees at the Jail to a substantial risk of serious harm;
• Whether Defendants knew of and disregarded a substantial risk of serious harm to the health and safety of the class and subclasses; and
• Whether COVID-19 presents a heightened risk of harm and potential death to the Medically Vulnerable Subclass.
Among the most important common questions of law are:
• As to the entire class: whether the conditions in which the class is confined are objectively unreasonable given the health risks to class members.10
• As to the Pre-Trial Subclass: whether Defendants are liable under the Fourteenth Amendment for establishing a de facto policy denying health care to detainees and whether the objectively unreasonable conditions of confinement are likely to cause serious illness and needless suffering.
• As to the Post-Conviction Subclass: whether Defendants are liable under the Eighth Amendment for their deliberate indifference to conditions of confinement that are likely to cause serious illness and needless suffering.
• As to the Medically Vulnerable Subclass: whether the threat of harm or death to members of the subclass is constitutionally impermissible such that the only adequate remedy is release from custody.
In short, common questions of fact and law pervade this case, satisfying the Rule 23(a)(2)
commonality requirement.
III. The Named Plaintiffs’ Claims Are Typical of the Claims of the Proposed Class.
The Named Plaintiffs in this case have claims typical of all members of the class, i.e., of
all the people incarcerated in the Jail. To meet the typicality requirement, the Named Plaintiffs’
10 As explained in footnote 1, supra, and in the Temporary Restraining Order Brief, the Eighth Amendment governs the constitutionality of the terms of confinement for people who have been convicted, whereas the Fourteenth Amendment governs the constitutionality of the terms of confinement for people still awaiting trial. To find an Eighth Amendment violation as to the Post-Conviction Subclass, this Court must find both that the conditions in the Prison are objectively unreasonable and that the Prison was subjectively aware of and disregarded the risks. To find a Fourteenth Amendment violation as to the Pre-Trial Subclass, the objective unreasonableness component of the inquiry is all that applies and is common to all subclasses. See Compl. ¶¶ 148-52; TRO Br. at 28-33.
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claims must be “typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The commonality and typicality requirements of Rule 23(a) tend to merge.” Wal-Mart, 564 U.S. at 349 n.5; Lewis, 324 F.R.D. at 169 (“typicality is commonality addressed from the perspective of the named plaintiffs.”) (citation omitted)). “Often, once commonality is shown, typicality will follow as a matter of course.” Dockery, 253 F. Supp. 3d at 850. As such, typicality is “somewhat of a low hurdle.” Dunn v. Dunn, 318 F.R.D. 652, 666 (M.D. Ala. 2016) (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982)). The requirement of “typicality” “focuses . . . on the similarity of the legal and remedial theories behind [the Named Plaintiffs’] claims.” Jenkins, 782 F.2d at 472. These claims do not need to be identical, but rather must “arise from a similar course of conduct and share the same legal theory” as the class claims. See Lewis, 324 F.R.D. at 169. “Most circuits have held that the existence of routine and standardized practices which give rise to numerous claims weighs in favor of finding typicality.” Richard, 2018 WL 5305377, at *7 (collecting cases).
Courts in the Fifth Circuit have consistently found prisoners’ claims to be “typical” of the class they propose to represent where those claims arise from policies or conditions at an institution affecting all members of the proposed class. In Lewis, 324 F.R.D. at 169, for example, the court found that a prisoner’s claims regarding inadequacy of medical treatment were typical of those of the class of prisoners he sought to represent because they arose from “policies and procedures regarding medical care [which] apply across the board to all prisoners.” Id. at 172. See also, e.g., Dockery, 253 F. Supp. 3d at 855 (finding Rule 23(a)(3)’s typicality commonality requirement satisfied because “the claims of each putative class and subclass member (1) arise from the same policy or practice, i.e. the prison officials’ alleged failure to take corrective action, and the same defect, i.e. the existence of inhumane conditions of confinement, and (2) are based on the same
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legal theory, i.e. the alleged violation of the Eighth Amendment right to be free from cruel and unusual punishment”); Jones, 296 F.R.D. at 466 (“While class members’ experiences at OPP may differ, ‘the claims arise from a similar course of conduct and share the same legal theory’ and, therefore, ‘factual differences will not defeat typicality’ in this case.”) (citation omitted); cf. Parsons, 754 F.3d at 686 (“[G]iven that every inmate in ADC custody is highly likely to require medical, mental health, and dental care, each of the named plaintiffs is similarly positioned to all other ADC inmates with respect to a substantial risk of serious harm resulting from exposure to the defendants’ policies and practices governing healthcare.”).
In other COVID-19-related litigation, federal courts recently have found that both classes of detainees at large and medically vulnerable subclasses have satisfied Rule 23(a)’s typicality requirement. See, e.g., Cameron v. Bouchard, No. 20-10949, 2020 WL 2569868, at *18 (E.D. Mich. May 21, 2020) (“Typicality is satisfied for the Jail Class, as well as the Pre-Trial and PostConviction Subclasses at large because Plaintiffs allege the same injurious conduct stemming from Defendants’ response to the coronavirus pandemic”); see also Savino v. Souza, No. 20-10617WGY, 2020 WL 1703844, at *7 (D. Mass. Apr. 8, 2020) (“Crucial to the Court’s determination is the troubling fact that even perfectly healthy detainees are seriously threatened by COVID-19.”).
All Named Plaintiffs, each class member, and each subclass member are similarly impacted by Defendants’ inadequate response to the coronavirus pandemic, such that their conditions of confinement are unconstitutional. Cameron, 2020 WL 2569868, at *18. These conditions include detainees’ inability to practice social distancing in the jail’s common areas, jail staff’s inconsistent use of masks and gloves, detainees’ lack of adequate protective equipment or cleaning supplies, inadequate medical care and medical responses to COVID-19 cases, and jail staff and work release inmates leaving and returning to the jail each day.
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In sum, the Named Plaintiffs’ experiences mirror those of all class members and demonstrate that the harms are widespread across all types of class members.
IV. The Named Plaintiffs Are Competent and Dedicated Class Representatives. The Named Plaintiffs also fulfill the final requirement under Rule 23(a): they “will fairly
and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Courts in the Fifth Circuit find that the adequacy element contains “three separate but related prongs: (1) zeal and competence of class counsel; (2) class representatives’ willingness and ability to take an active role in and control litigation and to protect interests of absentees; and (3) risk of conflicts of interest between named plaintiffs and class they seek to represent.” Richard, 2018 WL 5305377, at *8.
In order to satisfy the first adequacy requirement, Plaintiffs need only show that they have retained counsel who are knowledgeable and experienced in civil rights law and prosecuting class actions, id., and that they will fairly and adequately represent the interests of the class. Id. Absent proof to the contrary, courts will presume that this requirement is met. Id.
In order to satisfy the second adequacy requirement, a Plaintiff must show that that the proposed class representatives are willing and able to “take an active role in and control the litigation and to protect the interests of absentees.” Jones v. Singing River Health Servs. Found., 865 F.3d 285, 294 (5th Cir. 2017) (quoting Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 484 (5th Cir. 1982)); Rooney v. EZCORP, Inc., 330 F.R.D. 439, 446 (W.D. Tex. 2019) (“the plaintiff must show that he is willing and able to ‘vigorously prosecute the interests of the class through qualified counsel.’”) (citation omitted). This requirement is easily met where the class representative’s interests are identical to those of the putative class. Richard, 2018 WL 5305377, at *8.
In order to satisfy the final adequacy requirement, Plaintiffs must show the absence of a conflict of interests between the proposed class representatives and the putative class. In re
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Chinese-Manufactured Drywall, 424 F. Supp. 3d at 483. Named Plaintiffs satisfy the first adequacy criterion: adequacy of counsel. Plaintiffs’
counsel include highly qualified and experienced civil rights, criminal defense, and civil litigation attorneys who are able and willing to conduct this litigation on behalf of the class. Plaintiffs’ counsel from the Advancement Project, the Fair Fight Initiative, the Center for Constitutional Rights, Professor Bill Quigley, and Hogan Lovells US LLP collectively have extensive experience litigating complex class action and civil rights cases, including cases concerning the constitutional rights of incarcerated people. See Ex. 2, Declaration of Lillian Hardy ¶¶ 3-5 (“Lillian Hardy Decl.”); Ex. 3, Declaration of David Utter ¶¶ 4-7 (“Utter Decl.”); Ex. 4, Declaration of Baher Azmy ¶¶ 2-5 (“Azmy Decl.”); Ex. 5, Declaration of Thomas Harvey ¶¶ 3-5, 8-9 (“Havey Decl.”); Ex. 6, Declaration of William Quigley ¶¶ 2, 5, 7-8, 13-14 (“Quigley Decl.”). As evidenced by the cited declarations and the filings in the cases noted therein, counsel have a history of zealous advocacy on behalf of their clients.
Named Plaintiffs meet the second adequacy criterion because they are ready and willing to take an active role in litigating this case, including by responding to discovery as needed. Each has met with counsel multiple times by phone (the only method of communication possible in light of the pandemic crisis), are aware of the duties and obligations that apply to representative plaintiffs in class litigation, and are committed to seeking relief on behalf of all class members. Finally, as noted throughout, Named Plaintiffs’ interests are identical to that of their fellow inmates who make up the class.
Named Plaintiffs meet the third adequacy criterion because they do not have interests that are in any way contrary to the rest of the class. They all share with the class the common goal of living in conditions that satisfy constitutional requirements. The relief they seek—declaratory and
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injunctive relief from unconstitutional policies and practices—would benefit the entire class equally. There are no conflicts between the Named Plaintiffs and the class. Accordingly, Named Plaintiffs and their counsel meet Rule 23(a)(4)’s adequacy requirement.
V. Certification of the Class for Prospective Relief is Appropriate Under Rule 23(b)(2).
In addition to satisfying the requirements of Rule 23(a), a plaintiff seeking class certification must show that they also satisfy one of the criteria articulated in Rule 23(b). Yates, 868 F.3d at 366. Named Plaintiffs’ proposed class is ideal for certification under Rule 23(b)(2).
To certify a class under Rule 23(b)(2), the party seeking class certification must show that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). In other words, the inquiry under Rule 23(b)(2) is not as to the existence of common issues between the class members, but rather “common behavior by the defendant towards the class.” Yates, 868 F.3d at 366 (citation omitted). “This is a simple inquiry in most cases.” 2 William B. Rubenstein et al., Newberg on Class Actions § 4:28 (5th ed. updated 2019). The requirement of a generally applicable set of actions “ensures that the class’s interests are related in a manner that makes aggregate litigation appropriate . . . and therefore efficient.” Id. Thus, “Rule 23(b)(2) applies . . . when a single injunction or declaratory judgment would provide relief to each member of the class.” Wal-Mart, 564 U.S. at 360.
As the Supreme Court has recognized, civil rights cases are “prime examples” of Rule 23(b)(2) class actions. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997); see also WalMart, 564 U.S. at 361; 2 William B. Rubenstein et al., Newberg on Class Actions § 4:40 (5th ed. updated 2019) (“Rule 23(b)(2) class actions are particularly effective in civil rights cases because these cases often involve classes which are difficult to enumerate but which involve allegations
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that a defendant's conduct affected all class members in the same way”). In actions primarily seeking injunctive relief, the (b)(2) requirement is “almost automatically satisfied.” Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 58 (3d Cir. 1994). “What is important is that the relief sought by the named plaintiffs should benefit the entire class.” Id. at 59.
In the Fifth Circuit, 23(b)(2) is interpreted to have three components. Dockery, 253 F. Supp. 3d at 850. First, “class members must have been harmed in essentially the same way.” Id. (citation omitted). Second, “injunctive relief must predominate over monetary damage claims.” Id. (citation omitted). Finally, the injunctive relief requested must be specific. Id.11
The class proposed here is exactly the kind of class that Rule 23(b)(2) embraces. See id. First, the policies and practices of the Defendants and the condition existing at the prison affect the class as a whole. Specifically, Defendants have permitted unsafe and effectively lethal conditions to persist within the Prison, notwithstanding their awareness of that danger.
Second, injunctive and declaratory relief are appropriate precisely because the only adequate relief requires enjoining Defendants’ unconstitutional policies and practices across the board and declaring their unconstitutionality. Indeed, the Fifth Circuit has made clear that a class action is the only way to provide appropriate relief in this case. In Ball v. LeBlanc, 792 F.3d 584, 599 (5th Cir. 2015), the Fifth Circuit vacated an injunction mandating that the Department Of Corrections provide adequate cooling throughout death row, holding that the Prison Litigation Reform Act “limits relief to the particular plaintiffs before the court” and bars “facility-wide relief” in a non-class action. Id. Here, adequate relief is impossible without facility-wide relief. There is simply no individually tailored relief that can ensure that a named plaintiff receives adequate
11 The precise terms of the injunction need not be articulated at class certification, it is sufficient that “the class members’ claim is such that a sufficiently specific injunction can be conceived.” Dockery, 253 F. Supp. 3d at 851.
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protection from COVID-19. Not only that, but it is far more efficient for this Court to grant injunctive and declaratory relief protecting the entire class than to extend that relief piecemeal through individual suits. Finally, the second Rule 23(b)(2) requirement is clearly met where, as here, Named Plaintiffs do not seek monetary damages for their claims. Dockery, 253 F. Supp. 3d at 855.
Third, as seen above, there are myriad forms of injunctive relief which would remedy the dangers faced by the class. Compl. at 62-65.
Finally, class certification is further necessary because of the inherently transitory nature of the constitutional harms at issue here: any individual class member’s claim might become moot before it could be addressed on the merits, and new class members face the prospect of immediate harm through unconstitutional exposure to the conditions in the Jail the moment they are detained. See Johnson, 658 F.2d at 1070. Accordingly, this Court should certify the class under Rule 23(b)(2).
Within the Fifth Circuit, many courts have certified prisoner class actions under Rule 23(b)(2) where the claims challenge conditions affecting the larger population of incarcerated people. See, e.g., Yates, 868 F.3d at 367 (granting class certification in action by inmates asking court to enjoin defendants maintain a safe indoor temperature in prison buildings); Lewis, 324 F.R.D. at 176 (certifying class of inmates at Louisiana State Prison seeking injunctive relief regarding medical care at prison); Dockery, 253 F. Supp. 3d at 842, 856-57 (certifying class of inmates seeking to enjoin named prison officials from continued use of dangerous policies and practices, and that they be required to implement a plan to eliminate the substantial risks of harm that result from those policies and practices); J.D., 255 F.R.D. at 417 (certifying class of inmates at juvenile detention center seeking injunctive relief with respect to conditions at detention center).
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VI. Plaintiffs’ Counsel Should Be Appointed Class Counsel Under Rule 23(g). Federal Rule of Civil Procedure 23(g) requires that the court appoint class counsel for any
class that is certified. Fed. R. Civ. P. 23(g)(1). Class counsel must “fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B). A court must consider factors including: (1) “the work counsel has done in identifying or investigating potential claims in this action”; (2) “counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action”; (3) “counsel’s knowledge of the applicable law”; and (4) “the resources that counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv).
The undersigned counsel satisfy these requirements. First, Plaintiffs’ counsel have interviewed Named Plaintiffs and other class members, performed relevant legal research and drafting, and investigated the facts and legal claims raised in this case in detail, despite the significant practical obstacles posed by the nature of the current global health crisis. Ex. 2, Lillian Hardy Decl. ¶ 7; Ex. 3, Utter Decl. ¶ 9; Ex. 4, Azmy Decl. ¶ 10; Ex. 5, Harvey Decl. ¶ 10; supra Section IV. Second, Plaintiffs’ counsel have significant experience litigating class and civil rights actions, including extensive and specific experiencing litigating cases involving the rights of incarcerated peoples and individuals at risk of COVID-19 inside detention facilities. Ex. 2, Lillian Hardy Decl. ¶¶ 3-5; Ex. 3, Utter Decl. ¶¶ 4-7; Ex. 4, Azmy Decl. ¶¶ 2-5; Ex. 5, Havey Decl. ¶¶ 35, 8-9, Ex. 6, Quigley Decl. ¶¶ 2, 5, 7-8, 13-14. Finally, Plaintiffs’ counsel are prepared to contribute significant resources to the representation of this class. Ex. 2, Lillian Hardy Decl. ¶ 7; Ex. 3, Utter Decl. ¶ 9; Ex. 4, Azmy Decl. ¶ 10; Ex. 5, Harvey Decl. ¶ 10. Therefore, Plaintiffs’ counsel satisfies the four criteria in Rule 23(g), and they respectfully request appointment as class counsel.
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CONCLUSION For the reasons set forth above, Plaintiffs respectfully request that this Court certify the class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. Plaintiffs also request that undersigned counsel be appointed class counsel under Rules 23(g). In the alternative, if Defendants contest material issues of fact necessary for class certification, Plaintiffs request the opportunity to conduct discovery related to class certification and a subsequent hearing. Respectfully submitted, this 27th day of May, 2020.

/s/ David J. Utter David J. Utter (LA Bar No. 23236) William R. Claiborne (GA Bar No. 126363)* FAIR FIGHT INITIATIVE 410 East Bay Street Savannah, Georgia 31401 (912) 236-9559 Telephone (912) 236-1884 Facsimile david@fairfightinitative.org will@fairfightinitative.org Attorneys for Plaintiffs
*Pro Hac Vice motion pending

/s/Miriam R. Nemeth______________ Thomas B. Harvey (MBE #61734MO)* Miriam R. Nemeth (DC Bar No. 1028529)** Tiffany Yang (DC Bar No. 230836)* ADVANCEMENT PROJECT NATIONAL OFFICE 1220 L Street NW, Suite 850 Washington, DC 20005 (202) 728-9557 Telephone tharvey@advancementproject.org mnemeth@advancementproject.org tyang@advancementproject.org Attorneys for Plaintiffs

*Pro Hac Vice motions pending ** Lead Attorney for Plaintiffs

/s/ Lillian S. Hardy______________ Lillian S. Hardy (DC Bar No. 991282)* Hogan Lovells US LLP 555 Thirteenth Street NW Washington, DC 20004 (202) 637-5884 Telephone lillian.hardy@hoganlovells.com Attorneys for Plaintiffs
*Pro Hac Vice motion pending

/s/ William P. Quigley William P. Quigley (LA Bar No. 00769) Loyola University New Orleans 7214 St. Charles Avenue Campus Box 902 New Orleans, LA 70117 Attorney for Plaintiffs

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/s/ Baher Azmy Baher Azmy (NY Bar No. 2860740)* Omar Farah (NY Bar No. 4641247)* Brittany Thomas (NY Bar No. 5683834)* CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 11201 (212) 614-6427 Telephone bazmy@ccrjustice.org ofarah@ccrjustice.org bthomas@ccrjustice.org Attorneys for Plaintiffs
*Pro Hac Vice motions forthcoming
CERTIFICATE OF SERVICE
I hereby certify that on May 27, 2020 a copy of the foregoing was sent to all parties via electronic mail upon the following:
Michael P. Schillage Assistant Parish Attorney Office of the East Baton Rouge Parish Attorney 222 St. Louis Street, Suite 902 Baton Rouge, LA 70803
MSchillage@brla.gov
Catherine St. Pierre Erlingson Banks, PLLC
One American Place 301 Main Street Suite 2110
Baton Rouge, LA 70801 cstpierre@erlingsonbanks.com
/s/ David J. Utter David J. Utter
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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

CLIFTON BELTON, JR., JERRY BRADLEY, CEDRIC FRANKLIN, CHRISTOPHER ROGERS, JOSEPH WILLIAMS, WILLIE SHEPHERD, DEVONTE STEWART, CEDRIC SPEARS, DEMOND HARRIS, and FORREST HARDY, individually and on behalf of all others similarly situated,

Plaintiffs,

Case No. 3:20-cv-000278-BAJ-SDJ

v.

SHERIFF SID GAUTREAUX, in his official capacity as Sheriff of East Baton Rouge; LT. COL. DENNIS GRIMES, in his official capacity as Warden of the East Baton Rouge Parish Prison; CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE,

Defendants.

ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Upon consideration of Plaintiffs’ Motion for Class Certification, the parties’ briefing, and

oral argument, if any, this Court finds that Plaintiffs have satisfied the requirements for class

certification under Fed. R. Civ. P. 23(a) and (b)(2). Specifically, Plaintiffs have demonstrated that

members of the proposed class are so numerous that joinder is impracticable; that there are

questions of law and fact common to the class; that the claims of the Plaintiffs are typical of the

claims of the class members; and that Plaintiffs and their counsel, as representatives of the class,

will fairly and adequately protect its interests.

In light of the above, this Court orders that Plaintiffs’ motion be granted and that the

following class be certified, with the named Plaintiffs appointed class representatives: Clifton

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Belton, Jr., Jerry Bradley, Cedric Franklin, Christopher Rogers, Joseph Williams, Willie Shepherd,

Devonte Stewart, Cedric Spears, Demond Harris, and Forrest Hardy, are hereby appointed as class

representatives.

FURTHER, the Court certifies a class defined as “all current and future persons in the

custody of the East Baton Rouge Parish Prison during the course of the COVID-19 pandemic”

with the following subclasses:

•

The “Pre-trial Subclass” is defined as: “All members of the Jail Class who have not

yet been convicted of the offense for which they are currently held in the jail.”

•

The “Post-Conviction Subclass” is defined as: “All members of the Jail Class who

have been sentenced to serve time in the jail or who are otherwise in the jail as the result of an

offense for which they have already been convicted.”

•

The “Medically Vulnerable Subclass” is defined as: “All members of the Jail Class

who are also sixty-five years old or older, or who, regardless of age, experience an underlying

medical condition that places them at particular risk of serious illness or death from COVID-19,

including but not limited to (a) lung disease, including asthma, chronic obstructive pulmonary

disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung

function; (b) heart disease, such as congenital heart disease, congestive heart failure, and coronary

artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d)

diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune

systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect

of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease);

(i) inherited metabolic disorders; (j) history of stroke; (k) severe obesity (a body mass index above

40); and/or (l) a current or recent (last two weeks) pregnancy.”

2

Case 3:20-cv-00278-BAJ-SDJ Document 8-2 05/27/20 Page 3 of 3 FURTHER, there is no argument that Plaintiffs’ counsel is not fully qualified, experienced, and generally able to prosecute this class action. Class counsel has experience in class action cases and will adequately represent the interests of the class. Accordingly, it is ORDERED and ADJUDGED that Plaintiffs’ Motion is GRANTED. BATON ROUGE, LOUISIANA, this ___day of ___________________, 2020.
JUDGE BRIAN A. JACKSON MIDDLE DISTRICT OF LOUISIANA
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Exhibit List

1

Photo of Q9, one of the Jail’s dorms pre-pandemic

2

Declaration of Lillian Hardy

3

Declaration of David Utter

4

Declaration of Baher Azmy

5

Declaration of Thomas Harvey

6

Declaration of William Quigley

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EXHIBIT 2

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EXHIBIT 4

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DECLARATION OF BAHER AZMY I, BAHER AZMY, declare under penalty of perjury as follows:
1. I an attorney in good standing with Bar of New York. I am the Legal Director of the Center for Constitutional Rights (CCR) in New York. I submit this Declaration in support of Plaintiffs’ Motion for Class Certification and to specifically address the adequacy of class representation by CCR and co-counsel appearing in this litigation.
2. The Center for Constitutional Rights is a national, not-for-profit legal, educational and advocacy organization dedicated to protecting and advancing rights guaranteed by the United States Constitution, federal civil rights law and international law. Founded in 1966 to represent civil rights activists in the South, CCR has since litigated numerous landmark actions protecting the rights of marginalized persons, as well as a range of federal civil rights class actions challenging racial profiling by law enforcement, discrimination against racial and ethnic minorities in public and private employment, and harsh and unconstitutional treatment of state and federal prisoners.
3. CCR has litigated a number of historic civil rights cases such as Monell v. Department of Social Services, 436 U.S. 658 (1978) (holding that municipalities can be liable for damages in suits brought under 42 U.S.C. § 1983); Palmer v. Thompson, 403 U.S. 217 (1971) (equal protection challenge to Jackson, Mississippi’s decision to close public facilities rather than desegregating them); United States v. United States District Court, 407 U.S. 297 (1972) (holding Fourth Amendment’s warrant requirements apply to electronic surveillance); Texas v. Johnson, 491 U.S. 397 (1989) (holding First Amendment protects expressive activity of flag burning); Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (First Amendment challenge to prospect of being charged for material support of terrorism for nonviolent speech activity).
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4. Under my supervision, in recent years, CCR has served as class counsel in a number of successful complex federal civil rights class action cases that include: demonstrating the New York City Fire Department’s systematic, discriminatory hiring and promotion practices was in violation of Title VII, see Vulcans Society v. City of New York, 717 F.3d 72 (2d Cir. 2013); that the New York City Police Department engaged in a systematic practice of racial discrimination and unconstitutional “stop and frisks,” see Floyd v. City of New York, 959 F. Supp.2d 540 (S.D.N.Y. 2013); that New York City and State teacher certification requirements violated the Title VII rights of Black and Latino teachers and candidates, see Gulino v. Board of Education of the New York City School Districts, 201 F.R.D. 326 (S.D.N.Y. 2001); and, ending indeterminate and long-term solitary confinement for prisoners in California state facilities, Ashker v. Brown, 09-cv-05796, Dkt 445 (N.D. Cal. Oct. 14, 2015) (court approval of class action settlement); see also Austin v. Wilkinson, 545 U.S. 209 (2005) (Eighth and Fourteenth Amendment due process challenge to Ohio’s practices with respect to its supermaximum prison); Al Otro Lado v. Wolf,
5. I am a 1996 graduate of NYU School of Law, magna cum laude. Prior to assuming my current position as Legal Director of CCR, I was for over ten years a law professor at Seton Hall Law School in Newark, New Jersey, where I directed a Civil Rights and Constitutional Litigation Clinic and regularly taught a five-credit course in U.S. Constitutional Law. For over twenty years, I have involved in dozens of complex civil rights actions, including a number of class actions, in areas of immigration enforcement and detention, policing and racial and religious profiling, government surveillance, free speech, and separation of powers. Before and during my time as Legal Director at CCR, I have worked on numerous cases seeking to protect the rights of individuals in detention. This includes working on nearly a dozen cases on
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behalf of men detained in Guantanamo Bay, see, e.g. Rasul v. Bush, 542 U.S. 466 (2004); Boumediene v. Bush, 553 U.S. 723 (2008); prisoners tortured by U.S. entities in Abu Ghraib, see Al Shimari v. CACI Premier Technology, Inc., 840 F.3d. 147 (4th Cir. 2016) (holding that claims of torture and war crimes brought by Iraqi citizens against U.S. entity were not barred by political question doctrine); and Muslim, Arab and South Asian immigrant individuals detained in unconstitutional conditions by federal officials in connection with investigations into the September 11th attacks, see Ziglar v. Abassi, 137 S. Ct. 1843 (2017).
6. The team of CCR attorneys working includes Omar Farah and Brittany Thomas. 7. Omar Farah is a Senior Staff Attorney at the Center for constitutional Rights and a 2007 graduate of Georgetown University Law Center. In addition to extensive experience working on habeas corpus cases related to Guantanamo Bay detainees and access to information cases, Mr. Farah has worked on a number of civil rights matters including Hassan v. City of New York, 804 F.3d 277 (3d Cir. 2015), which successfully challenged the NYPD’s discriminatory program of suspicionless surveillance of Muslims and Furlow v Belmar, a class action suit that alleges systemic wrongful arrests by the St. Louis Police Department. 8. Brittany Thomas is a 2018 graduate of the University of Miami School of Law, where she graduated cum laude. Ms. Thomas is in her second year of a two-year Bertha Justice Fellowship at CCR, where she is involved in a range of complex federal litigation related to abusive immigration practices, discriminatory policing, and racial injustice. In addition, she has worked on several habeas and civil rights actions including Dada et al. v. Witte, 1:20-cv-00458 (W.D. La.), which successfully challenged the post-COVID-19 detention of 14 individuals in Immigration and Customs Enforcement custody. She also works on the post-settlement enforcement of Ashker et. al. v. Governor of California, a class action lawsuit which successfully
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challenged the solitary confinement procedures utilized by the California Department of

Corrections.

9. I am aware of no conflicts of interest between myself, CCR, and any members of

the class

10. CCR has committed substantial time and resources to represent the proposed class

in this case and has been involved in the drafting of substantive pleadings and motions in this

case. CCR will commit sufficient resources to vigorously prosecute this case on behalf of all

classmembers.

Dated: New York, New York May 26, 2020

________/s/Baher Azmy _________

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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

CLIFTON BELTON, JR., JERRY BRADLEY, CEDRIC FRANKLIN, CHRISTOPHER ROGERS, JOSEPH WILLIAMS, WILLIE SHEPHERD, DEVONTE STEWART, CEDRIC SPEARS, DEMOND HARRIS, and FORREST HARDY, individually and on behalf of all others similarly situated,

Plaintiffs,

Case No. 3:20-cv-000278-BAJ-SDJ

v.

SHERIFF SID GAUTREAUX, in his official capacity as Sheriff of East Baton Rouge; LT. COL. DENNIS GRIMES, in his official capacity as Warden of the East Baton Rouge Parish Prison; CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE,

Defendants.

ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Upon consideration of Plaintiffs’ Motion for Class Certification, the parties’ briefing, and

oral argument, if any, this Court finds that Plaintiffs have satisfied the requirements for class

certification under Fed. R. Civ. P. 23(a) and (b)(2). Specifically, Plaintiffs have demonstrated that

members of the proposed class are so numerous that joinder is impracticable; that there are

questions of law and fact common to the class; that the claims of the Plaintiffs are typical of the

claims of the class members; and that Plaintiffs and their counsel, as representatives of the class,

will fairly and adequately protect its interests.

In light of the above, this Court orders that Plaintiffs’ motion be granted and that the

following class be certified, with the named Plaintiffs appointed class representatives: Clifton

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Belton, Jr., Jerry Bradley, Cedric Franklin, Christopher Rogers, Joseph Williams, Willie Shepherd,

Devonte Stewart, Cedric Spears, Demond Harris, and Forrest Hardy, are hereby appointed as class

representatives.

FURTHER, the Court certifies a class defined as “all current and future persons in the

custody of the East Baton Rouge Parish Prison during the course of the COVID-19 pandemic”

with the following subclasses:

•

The “Pre-trial Subclass” is defined as: “All members of the Jail Class who have not

yet been convicted of the offense for which they are currently held in the jail.”

•

The “Post-Conviction Subclass” is defined as: “All members of the Jail Class who

have been sentenced to serve time in the jail or who are otherwise in the jail as the result of an

offense for which they have already been convicted.”

•

The “Medically Vulnerable Subclass” is defined as: “All members of the Jail Class

who are also sixty-five years old or older, or who, regardless of age, experience an underlying

medical condition that places them at particular risk of serious illness or death from COVID-19,

including but not limited to (a) lung disease, including asthma, chronic obstructive pulmonary

disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung

function; (b) heart disease, such as congenital heart disease, congestive heart failure, and coronary

artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d)

diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune

systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect

of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease);

(i) inherited metabolic disorders; (j) history of stroke; (k) severe obesity (a body mass index above

40); and/or (l) a current or recent (last two weeks) pregnancy.”

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Case 3:20-cv-00278-BAJ-SDJ Document 8-8 05/27/20 Page 3 of 3 FURTHER, there is no argument that Plaintiffs’ counsel is not fully qualified, experienced, and generally able to prosecute this class action. Class counsel has experience in class action cases and will adequately represent the interests of the class. Accordingly, it is ORDERED and ADJUDGED that Plaintiffs’ Motion is GRANTED. BATON ROUGE, LOUISIANA, this ___day of ___________________, 2020.
JUDGE BRIAN A. JACKSON MIDDLE DISTRICT OF LOUISIANA
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 Case 3:20-cv-00278-BAJ-SDJ Document 4 05/27/20 Page 1 of 66

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

CLIFTON BELTON, JR., JERRY BRADLEY, CEDRIC FRANKLIN, CHRISTOPHER ROGERS, JOSEPH WILLIAMS, WILLIE SHEPHERD, DEVONTE STEWART, CEDRIC SPEARS, DEMOND HARRIS, and FORREST HARDY, individually and on behalf of all others similarly situated,
Plaintiffs,
v.

Civil Action No. 3:20-cv-000278-BAJ-SDJ
Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief—Class Action

SHERIFF SID GAUTREAUX, in his official capacity as Sheriff of East Baton Rouge; LT. COL. DENNIS GRIMES, in his official capacity as Warden of the East Baton Rouge Parish Prison; CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE,

IMMEDIATE RELIEF SOUGHT

Defendants.

AMENDED CLASS ACTION COMPLAINT

1. Jails and prisons are rapidly becoming the epicenter of this country’s fight against

the novel coronavirus and its resulting disease, COVID-19. The rate at which this disease is

ravaging the globe is unprecedented in modern society, and its impact is being felt acutely by

imprisoned populations in Louisiana, the incarceration capital of America and an early hotspot for

the virus.1 Black people account for 55% of all COVID-19 deaths in Louisiana, even though they

1 Where are the US coronavirus hotspots?, https://www.aljazeera.com/news/2020/03/coronavirus-hot-spots200331175418853.html; The New York Times, Louisiana Coronavirus Map and Case Count, (May 22, 2020), https://www.nytimes.com/interactive/2020/us/louisiana-coronavirus-cases.html; Vera Institute of Justice, Louisiana must overhaul its justice system practices to respond to COVID-19 (April 9, 2020), https://www.vera.org/downloads/publications/Coronavirus-Guidance-Louisiana-Justice-System.pdf (calling Louisiana “the incarceration capital of the world because, for nearly every year for more than two decades, it has had the highest incarceration rate in the country”); WDSU Digital Team, Majority of COVID-19 Cases in Louisiana Prisons that Mass Test Are Asymptomatic, WDSU6 News (May 22, 2020), https://www.wdsu.com/article/majority-
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represent only 32% of the state’s population;2 these numbers are primed to be even more striking
in Baton Rouge Parish, where Black people make up 47% of the residents.3
2. Hundreds of individuals caged inside the East Baton Rouge Parish Prison (“EBRPP” or “jail”4)—overwhelmingly Black, poor, and medically vulnerable—are prohibited
from meaningfully protecting themselves against this global pandemic. Almost all of these
individuals—eighty-nine percent—have not been convicted of the crimes for which they are being detained and are presumed innocent.5 There have been at least 93 confirmed COVID-19 cases in
the EBRPP as of May 14, 2020,6 but the jail’s lack of meaningful testing leaves no doubt that this
number is grossly undercounted.
3. As COVID-19 continues to gain a powerful foothold in the jail, people detained
therein are at a significant risk of becoming infected and ultimately dying. Because of the actions
and inactions of the Defendants, individuals locked inside this jail are forced to fight for the
recognition of their humanity and for their very survival during this perilous and extraordinary
time.
of-covid-19-cases-in-louisiana-prisons-that-mass-test-are-asymptomatic/32634504# (noting that 317 women tested positive at facilities in St. Gabriel and Jetson). 2 David Benoit, Coronavirus Devastates Black New Orleans: ‘This is Bigger Than Katrina,’ Wall St. J. (May 23, 2020), https://www.wsj.com/articles/coronavirus-is-a-medical-and-financial-disaster-for-blacks-in-new-orleans11590226200. 3 United States Census Bureau, QuickFacts, East Baton Rouge Parish, Louisiana, https://www.census.gov/quickfacts/eastbatonrougeparishlouisiana (last visited May 25, 2020). 4 Although titled a prison, this facility is actually a jail that confines predominantly pretrial detainees. See, e.g., Consol. Gov’t of the City of Baton Rouge & Parish of East Baton Rouge, Louisiana, Annual Operating Budget For the Year Beginning January 1, 2016 at 110, available at https://www.brla.gov/DocumentCenter/View/3632/2016City-Parish-Budget (The parish prison “provides for the secure custody of all persons incarcerated pending disposition by the court system, transfer to other facilities, or completion of the court-ordered period of incarceration.”). 5 See Shanita Farris & Andrea Armstrong, Dying in East Baton Rouge Parish Prison at 12, The Promise of Justice Initiative (July 2018), available at https://promiseofjustice.org/wp-content/uploads/2019/07/Dying-in-East-BatonRouge-Parish-Prison-Final.pdf. 6 See Ex. 1, EBRPP COVID-19 Statistics (May 14, 2020).
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4. Defendants’ response to the COVID-19 crisis has been nothing short of constitutionally inadequate, even though they have been aware that it was “only a matter of time before coronavirus arrive[d] at the jail.”7 Defendants claim to be “operating under the guidelines set by DOC, the CDC and [Louisiana Health Department].”8 But declarations from individuals in the jail flatly contradict that claim and show that officials responsible for operating the jail have failed to adequately respond to the obvious and urgent threats posed by this growing pandemic.9
5. The jail has made no efforts to implement the standard protective measures that medical experts have advised for all people. The jail does not practice or promote social distancing, does not adequately clean or disinfect common and high-touch areas, and otherwise leaves detained individuals without sufficient soap or masks to protect themselves; it provides inadequate medical care to detainees battling the coronavirus, and it has even stopped performing routine medical checks to track and treat transmissions of the virus, despite statements to the contrary in the media. The over 1,000 people still jailed at EBRPP continue to sleep less than three feet apart from each other; breathe the same contaminated air; share showers, toilets, and telephones; and congregate in enclosed spaces for mandated roll calls and pill calls.
6. But, perhaps most shockingly, the jail has chosen to warehouse detainees who test positive for or exhibit symptoms of COVID-19 in a building that has been condemned since 2018. Those individuals are confined in their cells for almost 24 hours every day without adequate access
7 Jacqueline DeRobertis & Lea Skane, East Baton Rouge Sheriff: It’s only a matter of time before coronavirus arrives in jail, The Advocate (March 17, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_be4301c6-6887-11ea-b794ab2c5dcccad8.html. 8 Ex. 2, E-mail from Darryl Gissel to Jennifer Harding (Apr. 1, 2020). 9 Notably, this is not the first time that public officials in Louisiana have lied to their constituents about the impact of COVID-19 on prisons and jails in the state. For example, although the state Department of Corrections reported that only 55 individuals at Angola had contracted COVID-19, 115 people actually tested positive for the virus. See Jerry Iannelli, Louisiana’s Data on Coronavirus Infections Among Prisoners is Troubled and Lacks Transparency, The Appeal (May 1, 2020), https://theappeal.org/louisiana-doc-covid-19-data.
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to the medical care they need. 7. In short, the jail forces the individuals in its care to endure unconstitutional
conditions that deny them the precautions and protections necessary to mitigate against the risks of COVID-19, most critically the ability to socially distance from those around them.
8. Social distancing—the practice of maintaining at least six feet between any two people—is the “cornerstone” of preventing viral transmissions.10 Public health experts agree that other protective measures are insufficient to contain the virus if social distancing cannot be achieved. Infectious disease physician and virologist Dr. Adam Lauring emphasized, “[i]f social distancing cannot meaningfully be practiced, then it is impossible to prevent the spread of infections.”11 Infectious disease physician Carlos Franco-Paredes, M.D., echoes Dr. Lauring’s sentiments: “unless social distancing is . . . meaningfully implemented,” protective “interventions are insufficient to interrupt the transmission of COVID-19.”12 In accord with “U.S. public health experts,” National Institutes of Health Director Dr. Francis Collins, similarly remarked, “what we need most right now to slow the stealthy spread of this new coronavirus is a full implementation of social distancing.”13 And UC San Francisco epidemiologists Jeff Martin, MD, MPH, and George Rutherford, III, MD, make clear, “[s]ocial distancing is currently the most important factor we can control in the COVID-19 outbreak, and therefore critical” to “avoid catching the virus
10 Ex. 3, Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities 2 (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidancecorrectional-detention.html. 11 Ex. 4, Declaration of Dr. Adam Lauring ¶ 13, Russell v. Wayne Cty., No. 20-cv-11094 (E.D. Mich. May 4, 2020), ECF No. 1-15 (“Lauring Decl.”). 12 Ex. 5, Declaration of Dr. Carlos Franco-Paredes at 1, Cameron v. Bouchard, No. 2:20-cv-10949 (E.D. Mich. Apr. 30, 2020), ECF No. 42 (“Paredes Decl.”). 13 Dr. Francis Collins, To Beat COVID-19, Social Distancing is a Must, NIH Director’s Blog (Mar. 19, 2020), https://directorsblog.nih.gov/2020/03/19/to-beat-covid-19-social-distancing-is-a-must/.
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yourself and avoid passing it on.”14
9. A mass outbreak of COVID-19 in the EBRPP is inevitable given the conditions in
the facility and the communicability of the virus. Such an outbreak would further strain the limited resources in the state’s healthcare system.15 Accordingly, medical experts have stressed that urgent
action to reduce jail populations is an essential public health priority to avoid skyrocketing infection and fatality rates within the jail and in the surrounding community.16
10. These experts have particularly stressed the importance of release for individuals
who suffer from underlying medical conditions such as cardiac issues, asthma and other breathing
difficulties, diabetes, hypertension, obesity, and blood disorders, among others, and who are thus particularly susceptible to severe illness or death upon contracting COVID-19.17 For these individuals, the only adequate protective measure is release from the prison to shelter at home.18
11. Subjecting pretrial detainees to an unreasonable risk of illness and death constitutes
impermissible punishment under the Fourteenth Amendment. And disregarding these known,
obvious risks to needlessly expose people to a highly fatal infectious disease violates the Eighth
and Fourteenth Amendment rights of the people jailed at the jail. Defendants’ unconstitutional
14 Nina Bai, Why Experts Are Urging Social Distancing to Combat Coronavirus Outbreak, Univ. of Cal. S.F. (Mar. 14, 2020), https://www.ucsf.edu/news/2020/03/416906/why-experts-are-urging-social-distancing-combatcoronavirus-outbreak. 15 Ex. 6, Declaration of Mark Stern ¶ 11, Dawson v. Asher, Case No. 2:20-cv-00409-JLR-MAT (D. Or. Filed March 16, 2020), ECF No. 6 (“Stern Decl.”); see also Ex. 7, Declaration of Dr. Jaimie Meyer ¶¶ 16, 22, Velesaca v. Wolf, No. 1:20-cv-01803-AKH (S.D.N.Y. Mar. 16, 2020), ECF No. 42 (“Meyer Decl.”); Ex. 8, Declaration of Elizabeth Y. Chiao ¶ 28, Russell v. Harris Cty., No. 4:19-cv-00226 (S.D. Tex. Mar. 27, 2020), ECF No. 32-2 (“Chiao Decl.”). 16 ACLU, COVID-19 Model Finds Nearly 100,00 More Deaths Thank Current Estimates, Due to Failures to Reduce Jails, https://www.aclu.org/sites/default/files/field_document/aclu_covid19-jail-report_2020-8_1.pdf (“Models projecting total U.S. fatalities to be under 100,000 may be underestimating deaths by almost another 100,000 if we continue to operate jails as usual . . . [D]eaths could be double the current projection due to the omission of jails from most public models.”). 17 See, e.g., Ex. 9, Declaration of Dr. Fred Rottnek ¶ 61 (“Rottnek Decl.”); Ex. 5, Paredes Decl. at 7-8. 18 Ex. 4, Lauring Decl. ¶ 43; Ex. 6, Stern Decl. ¶¶ 12-13; Ex. 7, Meyer Decl. ¶¶ 38-39; Ex. 8, Chiao Decl. ¶¶ 41-42; Ex. 5, Paredes Decl. at 1.
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actions place the vulnerable people in their custody, their staff, and the broader community and health care system at risk of widespread contagion.
12. People confined in jails and prisons must “be furnished with the basic human needs, one of which is ‘reasonable safety,’” Helling v. McKinney, 509 U.S. 25, 33-34 (1993) (citations omitted). Yet Petitioners/Plaintiffs (hereinafter, Plaintiffs), as well as the class and subclass they represent, all face imminent risk of serious injury or death from COVID-19 in the jail. In the midst of a public health crisis, the people confined in the jail have not been provided adequate safeguards against the severe threat of this novel coronavirus.
13. Because Defendants’ actions and inactions constitute ongoing, systemic violations of Plaintiffs’ constitutional rights, Plaintiffs seek class-wide relief requiring Defendants to take basic and necessary steps to safeguard the health of people confined in the jail who, due to the nature of their confinement, are both at heightened risk of infection and death and are unable to access the most basic necessary protections available to people outside the jail. Plaintiffs further request a life-saving writ of habeas corpus for all those who are medically vulnerable and at particularly grave risk of infection and death from COVID-19, for whom release from detention is the only viable method to protect them from potentially lethal harm.
JURISDICTION AND VENUE 14. This action arises under 42 U.S.C. § 1983, 28 U.S.C. § 2241, and 28 U.S.C. § 2201, et seq., as well as the Eighth and Fourteenth Amendments to the United States Constitution. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343, 28 U.S.C. § 2241, and 28 U.S.C. § 1651. 15. Venue is proper pursuant to 28 U.S.C. § 1391 because the events and omissions giving rise to these claims occurred and continue to occur in this judicial district.
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PARTIES 16. PLAINTIFF CLIFTON BELTON, JR., a 60-year-old Black man, currently resides in Baton Rouge, Louisiana. At all times relevant to this Complaint, Mr. Belton has been in Defendants’ custody at the East Baton Rouge Parish Prison. He is currently confined in the infirmary at the jail and was previously confined in Q11-12 and Q4-5, general population housing lines. Mr. Belton suffers from congestive heart failure, diabetes, and high blood pressure. He is largely confined to a wheelchair due to fluid in his lungs and the partial amputation of his right foot. He has had four open-heart surgeries in the past year, the most recent in January 2020, and he flat-lined twice on April 15, 2019 due to the fluid around his heart, a persistent condition. He represents the Class, the Pretrial Subclass, and the Medically Vulnerable Subclass. 17. PLAINTIFF JERRY BRADLEY, a 39-year-old Black man, currently resides in Baton Rouge, Louisiana. At all times relevant to this Complaint, Mr. Bradley has been in Defendants’ custody at the East Baton Rouge Parish Prison. He is currently confined on the A1 line and was previously confined on the C01 line, two of the jail’s COVID-19 solitary confinement lines. Mr. Bradley pled guilty and was sentenced to time served on his charges on April 6, 2020, thus making him eligible for immediate release. He tested positive for COVID-19 after he accepted the plea. He represents the Class and the Post-Conviction Subclass. 18. PLAINTIFF CEDRIC FRANKLIN, a 47-year-old Black man, currently resides in Baton Rouge, Louisiana. At all times relevant to this Complaint, Mr. Franklin has been in Defendants’ custody at the East Baton Rouge Parish Prison, where he is serving his Department of Corrections sentence. He is currently confined on the F3 housing line, a general population line. Mr. Franklin was previously confined on the J1, central booking, M1, and Q5-6 housing lines. Mr. Franklin suffers from Type 2 Diabetes, high blood pressure, and blood clots in his legs.
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He represents the Class, the Post-Conviction Subclass, and the Medically Vulnerably Subclass. 19. PLAINTIFF CHRISTOPHER ROGERS, a 29-year-old Black man, currently
resides in Baton Rouge, Louisiana. At all times relevant to this Complaint, Mr. Rogers has been in Defendants’ custody at the East Baton Rouge Parish Prison. He is currently confined on the F5 housing line, a general population line. Mr. Rogers was previously confined on the B3 solitary confinement line for COVID-19-positive detainees. Mr. Rogers plans to plead to time served on his charges—for which he has already served more than the maximum amount—and seek his immediate release from the jail once he is able to get into court. Mr. Rogers represents the Class and the Pretrial Subclass.
20. PLAINTIFF JOSEPH WILLIAMS, a 21-year-old Black man, currently resides in Baton Rouge, Louisiana. At all times relevant to this Complaint, Mr. Williams has been in Defendants’ custody at the East Baton Rouge Parish Prison. He is currently confined on the B3 line, one of the jail’s COVID-19 solitary confinement lines. Four days before he was moved to solitary confinement, the charges against Mr. Williams were dropped; he remains in the jail only on a parole hold. Mr. Williams represents the Class and the Pretrial Subclass.
21. PLAINTIFF WILLIE SHEPHERD, a 38-year-old Black man, lived in Cloquet, Minnesota before his detention in East Baton Rouge, Louisiana. At all times relevant to this Complaint, Mr. Shepherd has been in Defendants’ custody at the East Baton Rouge Parish Prison. He is currently confined on the Q3 housing line, a general population line. Mr. Shepherd was previously confined on the B3 line, one of the solitary confinement lines used by the jail for COVID-19-positive detainees. Mr. Shepherd suffers from high blood pressure. He represents the Class, the Pretrial Subclass, and the Medically Vulnerable Subclass.
22. PLAINTIFF DEVONTE STEWART, a 25-year-old Black man, currently resides
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in Shreveport, Louisiana. At all times relevant to this Complaint, Mr. Stewart has been in Defendants’ custody at the East Baton Rouge Parish Prison. He is currently confined on the B3 line, one of the jail’s COVID-19 solitary confinement lines. He is confined in the jail only because of unaffordable cash bail. Mr. Stewart represents the Class and the Pretrial Subclass.
23. PLAINTIFF CEDRIC SPEARS, a 47-year-old Black man, currently resides in Baton Rouge, Louisiana. At all times relevant to this Complaint, Mr. Spears has been in Defendants’ custody at the East Baton Rouge Parish Prison. He is currently confined on the Q1112 line. Mr Spears was previously confined on the Q9-10 and Q5-6 lines, general population housing lines, and a solitary confinement line. He is in the jail only because of unaffordable cash bail. Mr. Spears represents the Class and the Pretrial Subclass.
24. PLAINTIFF DEMOND HARRIS, a 40-year-old Black man, currently resides in Baton Rouge, Louisiana. At all times relevant to this Complaint, Mr. Harris has been in Defendants’ custody at the East Baton Rouge Parish Prison. He is currently confined on the Q1112 line, a general population housing line. Mr. Harris was previously confined on the C01 and A1 solitary confinement lines for COVID-19-positive detainees; he did not have coronavirus when he was transferred onto those lines. He serves as a minister to the men in the jail. Mr. Harris represents the Class and Pretrial Subclass.
25. PLAINTIFF FORREST HARDY, a 31-year-old Black man, currently resides in Louisiana. At all times relevant to this Complaint, Mr. Hardy has been in Defendants’ custody at the East Baton Rouge Parish Prison. He is currently confined on the Q9-10 line, a general population housing line. He is in the jail only because of unaffordable cash bail. Mr. Hardy represents the Class and the Pretrial Subclass.
26. DEFENDANT SHERIFF SID J. GAUTREAUX, III is an adult resident of
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Louisiana. Gautreaux is the Sheriff of the East Baton Rouge Parish Sheriff’s Office and is responsible for the hiring, training, supervision, discipline, and control of appropriate staff to maintain the care, custody, and control of prisoners in the custody of the East Baton Rouge Parish Sheriff’s Office. He is responsible for all staffing at the jail. He is also responsible for the supervision, administration, policies, practices, customs, and operations of EBRPP. Gautreaux is a final policy maker who at times delegated policy making authority to other Defendants named in this lawsuit. At all pertinent times, Gautreaux was acting under color of law. He is liable both directly for the unconstitutional actions and vicariously for the state law actions complained of herein. Gautreaux is being sued in his official capacity as Sheriff of East Baton Rouge Parish.
27. DEFENDANT LIEUTENANT COLONEL DENNIS GRIMES is an adult resident of Louisiana. Defendant Grimes is the Warden of the jail, and as such is responsible for supervision, administration, policies, practices, customs, operations, training of staff, and operation of the jail. Grimes is a final policy maker and has been acting under color of law at all pertinent times. He is liable both directly for the unconstitutional actions and vicariously for the state law actions complained of herein. Grimes is being sued in his official capacity as Warden of the EBRPP
28. DEFENDANT CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE (CITY-PARISH) is a political entity capable of suing and being sued. The City-Parish contracts with CorrectHealth East Baton Rouge, LLC (“CorrectHealth”) for the provision of medical and mental health care in the jail, including the jail’s response to COVID-19, and oversees CorrectHealth’s conduct in the jail. The City-Parish is responsible for funding operations and maintenance of the jail, including the food, clothing, medical and mental health treatment, and related expenses for people confined in the jail. The East Baton Rouge Parish Metropolitan
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Council (Metro Council) is responsible for setting the policies of the City-Parish. THE GRAVE RISK OF HARM POSED BY THE COVID-19 PANDEMIC REQUIRES AN EMERGENCY RESPONSE 29. The highly contagious novel coronavirus, and its resulting infection, COVID-19,
are spreading at an alarming rate. Emphasizing “deep[] concern[] both by the alarming levels of spread and severity, and by the alarming levels of inaction,” the World Health Organization has called for countries to take “urgent and aggressive action.”19
30. The virus spreads easily through respiratory droplets and contact with people.20 The virus can also be spread by contact with surfaces on which the virus is present.21 Recent studies show that more than 50% of infected persons may never show symptoms, but can nevertheless transmit the virus to others.22 As a result, confirmed cases of the virus are likely drastically understated.
31. Dr. Amir Moheb Mohareb, an expert in infectious diseases, explains that COVID19 can be spread through airborne or aerosolized transmission and that “virus particles in small respiratory droplets . . . that are emitted by an infected person can remain suspended in the air and remain infective over several hours and over long distances.”23 He continues, “[p]athogens that
19 See World Health Org., Director-General Opening Remarks (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-mediabriefing-on-covid-19--11-march-2020; see also Bill Chappell, Coronavirus: COVID-19 Is Now Officially A Pandemic, WHO Says, NPR (Mar. 11, 2020), https://www.npr.org/sections/goatsandsoda/2020/03/11/814474930/coronavirus-covid-19-is-nowofficially-a-pandemic-who-says. 20 See Ctrs. for Disease Control & Prevention, How COVID-19 Spreads (Apr. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html. 21 Id. 22 Katherine Harmon Courage, How People are Spreading Covid-19 Without Symptoms, Vox (Apr. 22, 2020), https://www.vox.com/2020/4/22/21230301/coronavirus-symptom-asymptomatic-carrier-spread. 23 Ex. 10, Expert Declaration of Dr. Amir Moheb Mohareb, Mays v. Thomas, No. 20-cv-2134 (N.D. Ill. Apr. 19, 2020), ECF No. 64-3 (“Mohareb Decl.”).
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travel via airborne transmission can infect persons even if they are wearing surgical or procedural masks.” Buildings or facilities that do not have negative-pressure ventilation may be at risk of spreading aerosolized pathogens between rooms. Furthermore, “[a]erosols can be generated by a number of common events, including vigorous coughing, sneezing, use of certain nasal sprays or nebulizer treatments, and toilet flushing.”24 There is further reason to believe that SARS-CoV-2 can be transmitted via fecal-oral contact and that “[t]he identification of viable SARS-CoV-2 in stool of infected persons raises concern of airborne transmission via toilet flushing.”25 Finally, he declares, “[h]and hygiene and the provision of surgical masks are insufficient to prevent the spread of infection in a congregate setting.”26
32. On January 21, 2020, the first confirmed COVID-19 case was diagnosed in the United States.27 As of May 25, 2020, more than five million people have been diagnosed with COVID-19 worldwide, with more than a million new infections being confirmed in the two weeks preceding that date, and at least 342,000 deaths confirmed.28 In the United States, more than 1.6 million people have been diagnosed, and over 98,000 deaths have been confirmed.29 Louisiana has been one of the states hardest hit by this crisis.30 Nationally, the most recent CDC projections
24 Id. at 3-4. 25 Id. at 4. 26 Id. at 5. 27 Derrick Bryson Taylor, How the Coronavirus Pandemic Unfolded: a Timeline, N.Y. Times (May 12, 2020), https://www.nytimes.com/article/coronavirus-timeline.html. 28 World Health Org., Coronavirus Disease( COVID-19) Situation Report-126 (May 25, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200525-covid-19-sitrep126.pdf?sfvrsn=887dbd66_2; Reported Coronavirus Cases Top 5 Million Worldwide, N.Y. Times (May 21, 2010), https://www.nytimes.com/2020/05/21/world/coronavirus-world-news-live.html. 29 Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19) (May 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-in-us.html. 30 See infra ¶¶ 60-62.
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indicate that approximately four million patients will be hospitalized in the United States with
COVID-19, with more than 500,000 deaths over the course of the pandemic.31
33. Infected people—who may be asymptomatic and not even know they are infected—
can spread the disease even through indirect contact with others.32 Given that many people are
asymptomatic transmitters and very few people have been tested,33 the number of people
diagnosed with COVID-19 reflects only a small portion of those infected.34
34. The virus poses a grave risk of severe illness, including lung tissue damage,
sometimes leading to a permanent loss of respiratory capacity. It can also cause acute respiratory
distress syndrome, affect cardiac functions (including the possibility of heart failure), lead to
severe damage to other organs (including causing irreversible harm to the kidneys or neurologic
injury),35 and cause life-threatening blood clots.36 Research suggests that COVID-19 can trigger
31 Liz Essley Whyte, Scientists Say New, Lower CDC Estimates for Severity of COVID-19 Are Optimistic, Nat’l Public Radio (May 22, 2020), https://www.npr.org/sections/health-shots/2020/05/22/860981956/scientists-say-newlower-cdc-estimates-for-severity-of-covid-19-are-optimistic 32 See, e.g., Marilynn Marchione/AP, Novel Coronavirus Can Live on Some Surfaces for Up to 3 Days, New Tests Show, TIME (Mar. 11, 2020); Jiong Cai et al., Indirect Virus Transmission in Cluster of COVID-19 Cases, Wenzhou, China, 2020, 26 Emerging Infectious Diseases 6 (2020), https://doi.org/10.3201/eid2606.200412 (last visited May 23, 2020); see also Nathan W. Furukawa et al., Evidence Supporting Transmission of Severe Acute Respiratory Syndrome Coronavirus 2 While Presymptomatic or Asymptomatic, 26 Emerging Infections Diseases 7 (2020), https://wwwnc.cdc.gov/eid/article/26/7/20-1595_article. 33 See, e.g., Roni Caryn Rabin, They Were Infected With the Coronavirus. They Never Showed Signs, N.Y. Times (Feb. 26, 2020, updated Mar. 6, 2020), https://www.nytimes.com/2020/02/26/health/coronavirusasymptomatic.html; Aria Bendix, A Person Can Carry and Transmit COVID-19 Without Showing Symptoms, Scientists Confirm, Bus. Insider (Feb. 24, 2020), https://www.sciencealert.com/researchers-confirmed-patients-cantransmit-the-coronavirus-without-showing-symptoms; Rosa Flores et al., 2 Studies Show Many People Who Tested Positive for Covid-19 Displayed No Symptoms, CNN (Apr. 25, 2020), https://www.cnn.com/2020/04/24/us/2asymptomatic-coronavirus-studies/index.html. 34 See, e.g., Melissa Healy, True Number of US Coronavirus Cases is Far Above Official Tally, Scientists Say, L.A. Times (Mar. 10, 2020), https://www.msn.com/en-us/health/medical/true-number-of-us-coronavirus-cases-is-farabove-official-tally-scientists-say/ar-BB110qoA; Mike Stobbe, More Evidence Indicates Health People Can Spread Virus, AP News (Apr. 1, 2020), https://apnews.com/5c4992645fee551994325093858c14a4. 35 Ex. 11, Declaration of Dr. Jonathan Louis Golob ¶ 7, Dawson v. Asher, Case No. 2:20-cv-00409-JLR-MAT (D. Or. Filed March 16, 2020), ECF No. 5 (“Golob Decl.”). 36 Lydia Ramsey, Blood Clots Are the Latest Life-Threatening Complication of the Coronavirus, but Doctors Aren't Sure How to Treat Them, Bus. Insider (Apr. 19, 2020), https://www.businessinsider.com/coronavirus-blood-clot-
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an over-response in the immune system,37 resulting in death.38 People over the age of 50 are particularly at risk (accounting for 74% of patients hospitalized), as are people with certain underlying conditions, most commonly, hypertension, obesity, chronic lung disease, diabetes mellitus, and cardiovascular disease.39
35. The experiences of persons infected with COVID-19 are “a lot more frightening” than the flu.40 Suffering from acute respiratory distress syndrome has been compared to “essentially drowning in [one’s] own blood.”41 Even relatively young people with few health problems can be “wiped out” by the virus, “like they’ve been hit by a truck,” and, in some cases, “sudden[ly]” go into complete respiratory failure.42
36. Further, because COVID-19-related complications can develop rapidly, local hospitals are overwhelmed with high patient volumes and shortages in health care resources. Treatment for severe COVID-19 cases requires advanced medical support with highly specialized equipment, such as ventilators and oxygen assistance, and a team of qualified health care providers.
37. The current estimated incubation period is between two and fourteen days.43 The national rate of death among those infected is about 1.3%. The comparable rate of death for the
complications-in-severe-covid-19-treatment-debate-2020-4. 37 Ex. 11, Golob Decl. ¶ 7. 38 Id. 39 Shiha Garg et al., Hospitalization Rates and Characteristics of Patients Hospitalized With Laboratory-Confirmed Coronavirus Disease 2019—COVID-NET, 14 States, March 1-30, 2020, Ctrs. for Disease Control & Prevention Morbidity & Mortality Weekly Report (Apr. 17, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm. 40 See, e.g., Lizzie Presser, A Medical Worker Describes Terrifying Lung Failure From COVID-19 — Even in His Young Patients, ProPublica (Mar. 21, 2020), https://www.propublica.org/article/a-medical-worker-describes-terrifying-lung-failure-from-covid19-even-in-his-young-patients. 41 Id. 42 Id. 43 Ctrs. for Disease Control & Prevention, Symptoms of Coronavirus (May 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/about/symptoms.html.
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seasonal flu is 0.1%.44 Patients who do not die from serious cases of COVID-19 may face
prolonged recovery periods, including extensive rehabilitation from neurologic damage and loss
of respiratory capacity.45
38. Because it is unclear whether people who have recovered from COVID-19 are
immune to reinfection,46 and a vaccine appears more than one year away,47 the only effective
weapon against the virus is preventing new infections. According to health experts, the only
guaranteed way to prevent new infections is social distancing: physically isolating oneself from
any other person at a minimum distance of six feet. Dozens of the world’s experts on fighting
epidemics agree that extreme social distancing approximates the type of “total freeze”48 on
transmission that is vital to halting and reversing the spread of COVID-19. Epidemiologists say
that “[i]f it were possible to wave a magic wand and make all Americans freeze in place for 14
days while sitting six feet apart . . . the whole epidemic would sputter to a halt.”49
39. As a result, Governors, mayors, and local city and county officials—including those
in Louisiana—have all urged the public to practice social distancing.50 Forty-six states and the
44 Jake Ellison, COVID-19: Study Reports ‘Staggering’ Death Rate in U.S. Among Those Infected Who Show Symptoms, ScienceDaily (May 18, 2020), sciencedaily.com/releases/2020/05/200518144915.htm. 45 Ex. 11, Golob Decl. ¶ 4 46 Dr. Delaram J. Taghipour, Questions Remain Over Whether COVID-19 Recovery Will Guarantee Immunity: Is Reinfection Still Possible, ABC News (Apr. 12, 2020), https://abcnews.go.com/Health/questions-remain-covid-19recovery-guarantee-immunity-reinfection/story?id=70085581. 47 E.g., James Gallagher, Coronavirus Vaccine: When Will We Have One?, BBC News (May 18, 2020), https://www.bbc.com/news/health-51665497. 48 E.g., Donald G. McNeil Jr., The Virus Can Be Stopped, but Only With Harsh Steps, Experts Say, N.Y. Times (Mar. 25, 2020), https://www.nytimes.com/2020/03/22/health/coronavirus-restrictions-us.html; see also Ctrs. for Disease Control & Prevention, Social Distancing, (May 6, 2020), https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/social-distancing.html. 49 Donald G. McNeil Jr., The Virus Can Be Stopped, but Only With Harsh Steps, Experts Say, N.Y. Times (Mar. 22, 2020), https://www.nytimes.com/2020/03/22/health/coronavirus-restrictions-us.html. 50 Assoc. Press, 11 Graphics That Officials Say Tell the Strong of Louisiana’s Fight Against Coronavirus in May, The Advocate (May 11, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_418bba9c93ed-11ea-8311-135ae37e6259.html; Michigan closes bars, stops restaurant dine-in, further limits gatherings,
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District of Columbia have ordered all businesses deemed nonessential to close or to operate under
restrictions that allow for social distancing.51 Three hundred sixteen million people in at least 42
states, three counties, nine cities, the District of Columbia, and Puerto Rico were urged (or
ordered) to stay home.52 Gatherings where it was impossible to maintain social distancing were
cancelled across the country and the world.53
INCARCERATED PEOPLE AND CORRECTIONAL STAFF ARE AT HEIGHTENED RISK DURING THE COVID-19 PANDEMIC
40. Jail facilities become “ticking time bombs” in a pandemic, as “[m]any people
crowded together, often suffering from diseases that weaken their immune systems, form a
potential breeding ground and reservoir for diseases.”54 Epidemiological research
overwhelmingly “shows that mass incarceration raises contagion rates for infectious disease—
both for people in jails, and for the community at large.”55
WOODTV (Mar. 16, 2020), https://www.woodtv.com/health/coronavirus/whitmer-orders-bars-restaurants-to-closedue-to-virus-concerns/; Doug Mainwaring, Governor Urges ‘Social Distancing’ Even Among Families at Home, LifeSite (Apr. 3, 2020), https://www.lifesitenews.com/news/governor-urges-social-distancing-even-among-familiesat-home; Christian Berthelsen, Elise Young, N.J., N.Y. Urge Residents to Stay Put With Peak Approaching, Bloomberg (Apr. 9, 2020), https://www.bloomberg.com/news/articles/2020-04-09/murphy-says-social-distancing-isslowing-virus-spread-in-n-j; Laura Ziegler, Act Like You Have The Virus, Kansas City Officials Urge As They Step Up Social Distance Enforcement, KCUR (Mar. 30, 2020), https://www.kcur.org/post/act-you-have-virus-kansascity-officials-urge-they-step-social-distance-enforcement#stream/0; Kendall Downing, City, County Officials Urge Social Distancing Over Easter Holiday Weekend; City Braces for COVID-19 Budget Impact, WMC5 (Apr. 8, 2020), https://www.wmcactionnews5.com/2020/04/08/city-county-officials-urge-social-distancing-over-easter-holidayweekend-city-braces-covid-budget-impact/; Many People Will Get COVID-19’ Says Mayor Garcetti As He Urges LA To Practice Social Distancing, Self-Quarantine, CBSN Los Angeles (Mar. 14, 2020), https://losangeles.cbslocal.com/2020/03/14/many-people-will-get-covid-19-says-mayor-garcetti-as-he-urges-la-topractice-social-distancing-self-quarantine/. 51 Eric Schumaker, Here Are the States That Have Shut Down Nonessential Businesses, ABC News (Apr. 3, 2020), https://abcnews.go.com/Health/states-shut-essential-businesses-map/story?id=69770806. 52 Sarah Mervosh, Denise Lu & Vanessa Swales, See Which Cities and States Have Told Residents to Stay at Home, N.Y. Times (Apr. 20, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html. 53 A List of What’s Been Canceled Because of the Coronavirus, N.Y. Times (Apr. 1, 2020), https://www.nytimes.com/article/cancelled-events-coronavirus.html. 54 See St. Louis Univ., “Ticking Time Bomb”: Prisons Unprepared For Flu Pandemic, ScienceDaily (2006), https://www.sciencedaily.com/releases/2006/09/060915012301.htm. 55 Sandhya Kajeepeta & Seth J. Prins, Why Coronavirus in Jails Should Concern All of Us, The Appeal (Mar. 24,
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41. These facilities are inextricably linked to public life: even with the jail’s current restrictions on visitors, contractors, and vendors, the large number of staff members who keep the facility functioning pass between communities and the facilities multiple times daily, and, if infected, carry the virus with them. Similarly, rapid turnover of jail and prison populations means that people often cycle between these facilities and communities. Thus, the ability to control the spread of infection outside of facilities hinges on controlling infection and the spread of infection inside of these facilities. Put simply, jail health is public health.
42. According to Dr. Jaimie Meyer, an expert in public health in jails and prisons: “The risk posed by infectious diseases [such as COVID-19] in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected.”56 This is due to a number of factors, including:
a. The close proximity of individuals in those facilities; b. Their reduced ability to protect themselves through social distancing; c. The lack of necessary medical and hygiene supplies ranging from hot water,
soap or hand sanitizer, to protective equipment; d. Ventilation systems that encourage the spread of airborne diseases; e. Difficulties quarantining individuals who become ill; f. The enhanced susceptibility of the population in jails and prisons due to chronic
health conditions; g. The fact that incarcerated people, rather than professional cleaners, are often
responsible for cleaning the facilities and are not given appropriate supplies; and h. The fact that jails and prisons normally have to rely heavily on outside hospitals that will become unavailable during a pandemic, as well as the loss of both
2020), https://theappeal.org/coronavirus-jails-public-health/. 56 Ex. 7, Meyer Decl. ¶ 7.
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medical and correctional staff to illness.57
43. Increased risk of transmission and infection also result from the constant cycling of people in and out of the jail (including staff),58 limited access to medical care within the Jail itself,
and ineffective screening procedures. Most people do not show symptoms for two to fourteen
days while being contagious. Others never exhibit any symptoms at all. Thus, while screening
for fevers and other symptoms associated with COVID-19 may stop some infected people from
entering or transmitting the disease, it cannot catch many of those actively spreading the virus.
The drastic social distancing measures that have been imposed across the country are designed to
combat this exact problem. To be sure, by staying at home, we can limit our contact with other
persons, even the asymptomatic. This option is unavailable in the Jail.
44. Any of the revolving door of Jail staff can be asymptomatically carrying and transmitting COVID-19, and the Jail has no means of stopping the spread of this disease.59 At least 167 Department of Corrections staff members have tested positive for COVID-19,60 and
several high-level jail and prison officials across Louisiana have died from the virus, including the
Warden and Medical Director at a state prison in Avoyelles Parish and a staff member at the
57 See Ex. 7, Meyer Decl. ¶¶ 7-19; see also Laura M. Maruschak et al., Pandemic Influenza and Jail Facilities and Populations, 99 Am. J. of Pub. Health S2 (2009) (“The pathway for transmission of pandemic influenza between jails and the community is a two-way street. Jails process millions of bookings per year. Infected individuals coming from the community may be housed with healthy inmates and will come into contact with correctional officers, which can spread infection throughout a facility.”); see also Dr. Anne C. Spaulding, Coronavirus and the Correctional Facility, Emory Ctr. for the Health of Incarcerated Persons, (Mar. 9, 2020), https://www.ncchc.org/filebin/news/COVID_for_CF_Administrators_3.9.2020.pdf. 58 See Peter Wagner & Emily Widra, No Need to Wait for Pandemics: The Public Health Case for Criminal Justice Reform, Prison Policy Initiative (Mar. 6, 2020), https://www.prisonpolicy.org/blog/2020/03/06/pandemic. 59 See Linda So & Grant Smith, In Four U.S. State Prisons, Nearly 3,300 Inmates Test Positive for Coronavirus -96% Without Symptoms, Reuters (Apr. 25, 2020), https://www.reuters.com/article/us-health-coronavirus-prisonstesting-in/in-four-u-s-state-prisons-nearly-3300-inmates-test-positive-for-coronavirus-96-without-symptomsidUSKCN2270RX (noting that 95-96% of positive COVID-19 cases had no symptoms). 60 La. Dep’t of Public Safety & Corrs., COVID-19 Staff Positives (May 25, 2020, 11 a.m.), https://doc.louisiana.gov/doc-covid-19-testing/.
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Louisiana State Penitentiary (“Angola”).61 On April 2, 2020, the American Correctional Officer Intelligence Network sent a letter to the National Governors Association describing the dire impact of COVID-19 on correctional officers and staff: “[O]fficers in Michigan, New York and New Jersey have died from COVID-19. They will not be the last. Hundreds more across the nation have tested positive and thousands face quarantine. Inmates in our custody are dying as a result of this virus.”62 The letter also referenced a survey of over 750 correctional officers and staff about the ways in which the COVID-19 virus is impacting prisons, jails, and juvenile detention facilities, in which almost 60% of respondents said that COVID-19-related hazards inside their facility remain unaddressed.63
45. Correctional officials around the country agree that particular care must be taken to stop the spread of COVID-19 within the nation’s jails. Leann Bertsch, the Director of the North Dakota Department of Corrections and Rehabilitation, concluded that, “ignoring the health of those living and working inside the walls of our nation’s correctional facilities poses a grave threat to us all,” and that “putting public health first is the best, and only, way to effectively achieve [a department of corrections’] public safety mission during the COVID-19 pandemic.”64
61 See WDSU Digital Team, Warden, Medical Director of Louisiana Prison Die After Contracting Coronavirus, State Says, WDSU6 News (Apr. 20, 2020), https://www.wdsu.com/article/2-new-covid-19-related-deaths-reportedby-louisiana-prison-system-1-inmate-1-employee/32214252; WDSU Digital Team, Angola Prison Employee has Died of Coronavirus: Louisiana DOC, WDSU6 News (Apr. 14,2020), https://www.wdsu.com/article/angolaprison-staff-member-has-died-of-coronavirus-louisiana-doc/32146836. 62 Ltr. from One Voice & ACOIN to Nat’l Governors Ass’n (Apr. 2, 2020), https://drive.google.com/file/d/13euHXAPbSyVo1vkG9k1x7ymJCl_UJhTc/view. 63 Id. at 2. 64 Brie Williams & Leanne Bertsch, A Public Health Doctor and Head of Corrections Agree: We Must Immediately Release People From Jails and Prisons, The Appeal (Mar. 27, 2020), https://theappeal.org/a-public-health-doctorand-head-of-corrections-agree-we-must-immediately-release-people-from-jails-and-prisons/.
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46. On March 30, 2020, the Centers for Disease Control and Prevention (CDC)
published guidance for correctional and detention facilities, including local jails.65 The CDC
recognized that incarcerated people are forced to exist “within congregate environments” that
“heighten[] the potential for COVID-19 to spread once introduced.”66 Indeed, “[t]here are many
opportunities for COVID-19 to be introduced into a correctional or detention facility” including
“daily staff ingress and egress . . . transfer of incarcerated/detained persons between facilities and
systems, to court appearances,” as well as “high turnover” of “admit[ted] new entrants.”67
Accordingly, the CDC recommends that correctional facilities:
a. Post signage throughout the facility communicating COVID-19 symptoms and hand hygiene instructions, ensure such signage is understandable for non-English speaking people as well as those with low literacy, and provide clear information about the presence of COVID-19 cases within a facility and the need to increase social distancing and maintain hygiene precautions;
b. Ensure that sufficient stocks of hygiene supplies are on hand and available, and have a plan in place to restock as needed. Provide a no-cost supply of and access to soap to incarcerated/detained persons, sufficient to allow frequent hand washing. Provide Liquid soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. Provide hand drying supplies, and alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions);
c. Provide running water, hand drying machines or disposable paper towels for hand washing, and tissues (providing no-touch trash receptacles for disposal);
d. Ensure that sufficient stocks of cleaning supplies are on hand and available, and have a plan in place to restock as needed, including tissues, cleaning supplies, including EPA-registered disinfectants effective against the virus that causes COVID-19;
e. Ensure that sufficient stocks of PPE and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in
65 Ex. 3, Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities 2 (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidancecorrectional-detention.html. 66 Id. 67 Id.
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place to restock as needed if COVID-19 transmission occurs within the facility, including standard medical supplies for daily clinic needs, and recommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls);
f. Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty;
g. Suspend co-pays for incarcerated people seeking medical evaluation for respiratory symptoms;
h. Even if COVID-19 cases have not been identified locally or inside, implement “intensified cleaning and disinfecting procedures” that clean and disinfect hightouch surfaces and objects “[s]everal times per day,” and ensure adequate supplies to support intensified cleaning and disinfection practices;
i. Perform pre-intake screening and temperature checks for all new entrants, and implement daily temperature checks in housing units where COVID-19 cases have been identified;
j. If an individual has symptoms of COVID-19 (fever, cough, shortness of breath), require the individual to wear a face mask and place her under medical isolation; and
k. Implement social distancing strategies to increase the physical space between incarcerated people, ideally a distance of six feet “regardless of the presence of symptoms.”
47. The CDC’s guidance for jail administrators, however, is not a substitute for what is
medically required to protect people’s lives during a pandemic. Nor is it a repudiation of the
CDC’s scientific guidance that social distancing is required to stop the transmission of the virus.
48. The global path of the virus proves that jails and prisons are epicenters for
transmission. Approximately one month into the pandemic in the province of Hubei, China, over half of the newly reported COVID-19 cases out of Wuhan were from jails.68 In South Korea,
68 Zi Yang, Cracks in the System: COVID-19 in Chinese Prisons, The Diplomat (Mar. 9, 2020), https://thediplomat.com/2020/03/cracks-in-the-system-covid-19-in-chinese-prisons/.
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which has had tremendous success in slowing and stopping the spread of the virus, “the single
largest COVID-19 outbreak and mortality cluster was from the Daenam Prison Hospital, where 101 inmates were infected and seven died.”69
49. The coronavirus has started spreading inside other prisons, jails, and detention
centers in the United States. Experts predict that a mass contagion is only a matter of time and that “[a]ll prisons and jails should anticipate that the coronavirus will enter their facility.”70
50. Once the virus enters a jail or prison, the infection rate has been known to far exceed that of the broader community—by as much as 150%.71 In mid-March, for example, the jail at
Rikers Island in New York City had not had a single confirmed COVID-19 case. By March 30,
167 detainees, 114 correction staff and 20 health workers at Rikers tested positive for COVID-19;
two correction staff members had died and multiple detainees had been hospitalized. Rikers now
has a rate of infection that is nearly seven times higher than that in New York City and nine times higher than the rate in New York State72; over 30 times higher than the rest of America; and far higher than the infection rates of the most infected regions of the world.73 More than 700 people
69 Nancy Gertner & John Reinstein, Compassionate Release Now for Prisoners Vulnerable to the Coronavirus, Boston Globe (Mar. 23, 2020), https://www.bostonglobe.com/2020/03/23/opinion/compassionate-release-nowprisoners-vulnerable-coronavirus/. 70 Nicole Wetsman, Prisons and Jails Are Vulnerable to COVID-19 Outbreaks, The Verge (May 7, 2020), https://www.theverge.com/2020/3/7/21167807/coronavirus-prison-jail-health-outbreak-covid-19-flu-soap. 71 Katie Park, Tom Meagher, & Weihua Li, Tracking the Spread of Coronavirus in Prisons, The Marshall Project (Apr. 24, 2020), https://www.themarshallproject.org/2020/04/24/tracking-the-spread-of-coronavirus-in-prisons. 72 See Jan Ransom & Alan Feuer, ‘We’re Left for Dead’: Fears of Virus Catastrophe at Rikers Jail, N.Y. Times (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html; Chris Hays, Coronavirus Infection Rate in NYC Jails 7 Times the Rest of the City, MSNBC (Mar. 26, 2020), https://www.msnbc.com/all-in/watch/coronavirus-infection-rate-in-nyc-jails-7-times-the-rest-of-the-city81260101982; Scott Hechinger (@ScottHech), Twitter (Mar. 28, 2020, 7:21 PM), https://twitter.com/ScottHech/status/1244041855614029826/photo/1. 73 COVID-19 Infection Tracking in NYC Jails, The Legal Aid Soc’y (updated May 1, 2020), https://legalaidnyc.org/covid-19-infection-tracking-in-nyc-jails/ (last visited May 3, 2020).
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have tested positive for COVID-19, including more than 400 staff.74 The Chief Medical Officer
of Rikers has described COVID-19 infections as a “public health disaster unfolding before our
eyes.”75 In his view, following CDC guidelines has not been enough to stem the crisis: “infections
in our jails are growing quickly despite these efforts.”76
51. The Cook County Jail, similarly, went from two confirmed COVID-19 cases on
March 23 to more than 350 confirmed cases, 238 detainees and 115 staff members, two weeks
later.77 As of May 22, 2020, over 532 detainees and 418 jail staff contracted COVID-19, and seven
detainees and three jail staff have died as a result.78 Nurses at Cook County’s Stroger Hospital
have warned that the virus is a “growing beast” that threatens not only staff and people behind bars
but all of Cook County.79 An entire unit at Stroger Hospital has been converted into a space for
treating COVID-19 cases from the Cook County jail, and the unit is rapidly reaching maximum
capacity.80
52. An equally gruesome pattern is already devastating Louisiana’s carceral system.
74 Asher Stockler, More Than 700 People Have Tested Positive for Coronavirus on Rikers Island, Including Over 440 Staff, Newsweek (Apr. 8, 2020), https://www.newsweek.com/rikers-island-covid-19-new-york-city-1496872. 75 Meagan Flynn, Top Doctor at Rikers Island Calls the Jail a ‘Public Health Disaster Unfolding Before Our Eyes’, Wash. Post (Mar. 31, 2020), https://www.washingtonpost.com/nation/2020/03/31/rikers-island-coronavirus-spread/. 76 Ross MacDonald (@RossMacDonaldMD), Twitter (Mar. 30, 2020, 11:03 PM), https://twitter.com/rossmacdonaldmd/status/1244822686280437765?s=12 (“I can assure you we were following the CDC guidelines before they were issued. We could have written them ourselves. . . . [I]infections in our jails are growing despite these efforts.”). 77 Timothy Williams & Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars, N.Y. Times (Apr. 8, 2020), https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jail-chicago.html. 78 Cook Cnty. Sheriff’s Office, COVID-19 Cases at CCDOC (May 25, 2020), https://www.cookcountysheriff.org/covid-19-cases-at-ccdoc/; cf. Andy Grimm, Cook County Jail director defends handling of COVID-19 outbreak, Chi. Sun Times (Apr. 23, 2020), https://chicago.suntimes.com/coronavirus/2020/4/23/21233570/cook-county-jail-covid-19-outbreak-tom-dart. 79 Shannon Heffernan, Nurses Warn COVID-19 Cases At Cook County Jail Aren’t Just Staying Behind Bars, WBEZ, Chicago’s NPR (Apr. 11, 2020), https://www.wbez.org/stories/nurses-warn-covid-19-cases-at-cook-countyjail-arent-just-staying-behind-bars/44cc1e46-693b-44cc-8a5a-347737966185. 80 Id.
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Even without considering infection and death rates from jails across the state—which account for
about half of the Department of Corrections’ population—Louisiana reported 273 positive cases as of April 30, 2020.81 An additional 187 people in parish jails had contracted COVID-19 by April 22nd.82 Less than one month later, Louisiana’s prisons have 438 cases and 11 deaths.83 In one prison, nearly every woman (192 out of 195) tested positive for COVID-19.84
53. For this reason, medical and public health experts have urged emergency action to
fight the spread of COVID-19 in jails and other carceral facilities, including decarceration, improved access to medical care, compliance with CDC guidelines, and more.85 Medical experts
explain that the need for action is urgent given that “[t]he window of opportunity is rapidly
narrowing for mitigation of COVID-19”—outbreaks are measured in “a matter of days, not weeks,” with this type of novel virus.86
54. Medical experts have emphasized that urgent action in the jails is an essential public
health priority because outbreaks will place incredible strain on regional hospitals and health
81 Jerry Iannelli, Louisiana’s Data on Coronavirus Infections Among Prisoners is Troubled and Lacks Transparency, The Appeal (May 1, 2020), https://theappeal.org/louisiana-doc-covid-19-data. 82 Id. 83 The Marshall Project, A State-by-State Look at Coronavirus in Prisons (May 22, 2020), https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons. 84 Assoc. Press, At Louisiana Prison, 192 out of 195 Inmates Test Positive for COVID-19, MarketWatch (May 5, 2020), https://www.marketwatch.com/story/louisana-prison-unit-has-192-of-195-inmates-test-positive-for-covid-192020-05-05. 85 See, e.g., Brad Lander, Doctors in NYC Hospitals, Jails, and Shelters Call on the City to Take More Aggressive Action to Combat the Spread of Coronavirus, Medium (Mar. 12, 2020), https://medium.com/@bradlander/doctorsin-nyc-hospitals-jails-and-shelters-call-on-the-city-totake-more-aggressive-action-to-fb75f0b131c2; Letter from Faculty Members of the Johns Hopkins Bloomberg School of Public Health, School of Nursing, and School of Medicine to Governor Larry Hogan (Mar. 25, 2020), https://bioethics.jhu.edu/wp-content/uploads/2019/10/JohnsHopkins-faculty-letter-on-COVID-19-jails-and-prisons.pdf; Ex. 6, Stern Decl. ¶ 11; Ex. 12, Declaration of Dr. Ranit Mishori ¶ 46, Coreas v. Bounds, No. 8:20-cv-00780 (D. Md., filed Mar. 24, 2020), ECF No. 2-3 (“Mishori Decl.”); Ex. 13, Declaration of Robert B. Greifinger ¶ 13, Dawson v. Asher, Case No. 2:20-cv-00409-JLR-MAT (D. Or., filed Mar. 16, 2020), ECF No. 4 (“Greifinger Decl.”). 86 Ex. 12, Mishori Decl. ¶ 46.
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centers. Experts, like Dr. Meyer, make clear that “[r]educing the size of the population in jails and
prisons can be crucially important to reducing the level of risk both for those within those facilities
and for the community at large.”87
55. Public health experts, including Dr. Gregg Gonsalves,88 Ross MacDonald,89 Dr.
Marc Stern,90 Dr. Oluwadamilola T. Oladeru and Adam Beckman,91 Dr. Anne Spaulding,92 Homer
Venters,93 and Josiah Rich94 have all strongly cautioned that people booked into and held in jails
are likely to face serious, even grave, harm due to the outbreak of COVID-19.
56. According to Dr. Stern, “taking immediate and concerted efforts to implement
preventive steps, as well as reducing the population to the lowest number possible prioritizing
those who are elderly or have underlying medical conditions defined by the CDC, will increase
public safety via reducing public health risk.”95
57. In response to this need for immediate action, jails and prisons nationwide96 have
87 Ex. 7, Meyer Decl. ¶ 37. 88 Kelan Lyons, Elderly Prison Population Vulnerable to Potential Coronavirus Outbreak, The Ct. Mirror (Mar. 11, 2020), https://cutt.ly/BtRSxCF. 89 Craig McCarthy & Natalie Musumeci, Top Rikers Doctor: Coronavirus ‘Storm is Coming,’ N.Y. Post (Mar. 19, 2020), https://cutt.ly/ptRSnVo. 90 Marc F. Stern, MD, MPH, Washington State Jails Coronavirus Management Suggestions in 3 “Buckets,” Washington Ass’n of Sheriffs & Police Chiefs (Mar. 5, 2020), https://cutt.ly/EtRSm4R. 91 Oluwadamilola T. Oladeru, et al., What COVID-19 Means for America’s Incarcerated Population – and How to Ensure It’s Not Left Behind, HealthAffairs Blog (Mar. 10, 2020), https://cutt.ly/QtRSYNA. 92 Anne C. Spaulding, MD MPDH, Coronavirus COVID-19 and the Correctional Jail, Emory Ctr. for the Health of Incarcerated Persons (Mar. 9, 2020), https://www.prisonlegalnews.org/media/publications/Emory_CHIC_Coronavirus_and_the_Correctional_Facility_20 20.pdf. 93 Madison Pauly, To Arrest the Spread of Coronavirus, Arrest Fewer People, Mother Jones (Mar. 12, 2020), https://cutt.ly/jtRSPnk. 94 Amanda Holpuch, Calls Mount to Free Low-risk US Inmates to Curb Coronavirus Impact on Prisons, The Guardian (Mar. 13, 2020), https://cutt.ly/itRSDNH. 95 Ex. 6, Stern Decl. ¶ 13. 96 Internationally, governments have also responded to the threat posed by COVID-19 by releasing people from incarceration. In Iran, more than 80,000 people were temporarily released from prison to protect them and to protect
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released people, in order to prevent community outbreaks of severe illness and death from COVID-
19. For example, Los Angeles County, California has released more than 3,500 people;97 New
York released more than 1,600 people;98 New Jersey 1,000 people;99 Cuyahoga County, Ohio more
than 900 people.100
58. States and other local jurisdictions have also made changes to existing carceral
policies in response to the COVID-19 pandemic, including eliminating medical co-pays for
incarcerated people and waiving fees for phone calls and video communication.101 Others have
required facilities to distribute and make available sanitation supplies and hand sanitizer to
everyone who is incarcerated, arranged for the immediate evaluation and treatment of anyone with
symptoms, and enacted screening procedures for everyone who enters the jail or prison.102
59. Over the past two weeks, multiple courts have also acknowledged the severe and
the community from propagation of an outbreak. See Parisa Hafezi, Iran Temporarily Frees 85,000 From Jail Including Political Prisoners, Reuters (Mar. 17, 2020), https://www.reuters.com/article/us-health-coronavirus-iranprisoners/iran-temporarily-frees-85000-from-jail-including-political-prisoners-amid-coronavirus-idUSKBN21410M. In Ethiopia, more than 4,000 people were pardoned and released from incarceration to help prevent the spread of COVID-19. See Bukola Adebayo, Ethiopia Pardons More Than 4,000 Prisoners to Help Prevent Coronavirus Spread, CNN (Mar. 26, 2020), https://www.cnn.com/2020/03/26/africa/ethiopia-pardons-4000-prisoners-overcoronavirus/index.html. 97 CBS Los Angeles, Los Angeles, Ventura County Jails Releasing Inmates To Cut Risk Of Coronavirus Exposure (May 3, 2020), https://losangeles.cbslocal.com/2020/04/15/coronavirus-jails-releasing-inmates-los-angeles-countyventura-county/. 98 Rosa Goldensohn, COVID-Sick at Rikers On $1 Bail – And A Parole Violation, The City (Apr. 27, 2020), https://thecity.nyc/2020/04/rikers-island-early-release-sought-amid-coronavirus-soread.html. 99 Tracey Tulley, 1,000 Inmates Will Be Released From N.J. Jails to Curb Coronavirus Risk, N.Y. Times (Mar. 23, 2020), https://www.nytimes.com/2020/03/23/nyregion/coronavirus-nj-inmates-release.html. 100 Ronnie Dahl, Will Reduced Crowding at Cuyahoga County Jail Continue after the Coronavirus Crisis?, 19 News (May 3, 2020), https://www.cleveland19.com/2020/04/23/will-reduced-crowding-cuyahoga-county-jail-continueafter-coronavirus-crisis/. 101 See, e.g., Jessica Miller, Utah Jailers Say They’re Proud of Their Coronavirus Response, Reject Lawsuit, The Salt Lake Tribune (Apr. 28, 2020), https://www.sltrib.com/news/2020/04/27/utah-jailers-say-theyre/; see also Prison Policy Initiative, Responses to the COVID-19 Pandemic (May 22, 2020), https://www.prisonpolicy.org/virus/virusresponse.html. 102 See, e.g., Indiana Dep’t of Corr., Preparedness and Response Plan (Adult and Juvenile) 5–8 (2020), https://www.in.gov/idoc/files/IDOC%20Pandemic%20Response%20Plan%203-3-2020.pdf#response%20plan.
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urgent threats posed by COVID-19 and have accordingly ordered the release of detained and
incarcerated persons.103
THE COVID-19 PANDEMIC HAS REACHED EAST BATON ROUGE PARISH AND SWIFT ACTION IS NEEDED TO PREVENT A MASS OUTBREAK IN
THE JAIL
60. Louisiana has been one of the “hotspots” of coronavirus in the United States and—
with approximately 37,000 confirmed cases and more than 2,500 deaths—the state currently ranks
sixth in the country for its fatality rate.104 As of May 19th, East Baton Rouge Parish has led the
state with more than 1,150 positive cases of coronavirus diagnosed since May 1, 2020 and about
9% of the state’s total deaths.105 These figures were “roughly twice” that of the next closest
103 See, e.g., Cameron v. Bouchard, No. 20-10948, 2020 WL 2569868 (E.D. Mich. May 21, 2020); Judgment, Dada v. Witte, No. 1:20-cv-00458-DDD-JPM (W.D. La. May 22, 2020), ECF No. 24; TRO & Order to Show Cause at 10, Castillo et al. v. Barr, No. 5:20-cv-00605 (C.D. Cal. Mar. 27, 2020), ECF No. 32 (ordering petitioners be released from immigration detention in light of COVID-19 and noting “the risk of infection in immigration detention facilities – and jails – is particularly high”); United States v. Garlock., No. 18-cr-00418-VC-1, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (ordering, sua sponte, extension of convicted defendant’s surrender date and noting “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided”); Xochihua-Jaimes v. Barr, 798 F. App’x 52, 52 (9th Cir. 2020) (ordering, sua sponte, that petitioner be immediately released from immigration detention “[i]n light of the rapidly escalating public health crisis [related to COVID-19], which public health authorities predict will especially impact immigration detention centers”); United States v. Stephens, No. 15-cr-95 (AJN), 2020 WL 1295155, *2 (S.D.N.Y. Mar. 19, 2020) (granting motion for reconsideration of defendant’s bail conditions and releasing him from jail to home confinement, explaining that “the unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic has become apparent” and that “inmates may be at a heightened risk of contracting COVID-19 should an outbreak develop”); In re. Extradition of Toledo Manrique, No. 19-mj-71055-MAG-1 (TSH), 2020 WL 1307109, at *2 (N.D. Cal. Mar. 19, 2020) (ordering release on bond despite government assertions that facility has preparedness plan in place and no cases have been confirmed). 104 Where are the US coronavirus hotspots?, https://www.aljazeera.com/news/2020/03/coronavirus-hot-spots200331175418853.html; Dan Swenson et al., Coronavirus in Louisiana, nola.com (May 22, 2020), https://www.nola.com/news/coronavirus/article_7cb2af1c-6414-11ea-b729-93612370dd94.html; Death rates from coronavirus (COVID-19) in the United States as of May 22, 2020, by state, statista.com (May 22, 2010), https://www.statista.com/statistics/1109011/coronavirus-covid19-death-rates-us-by-state/; Oliver Laughland & Lauren Zanolli, A Virus Stalks a County with One of the Highest Death Rates in US: ‘People are Dropping Like Flies,’ The Guardian (Apr. 7, 2020), https://www.theguardian.com/us-news/2020/apr/07/cancer-alley-coronavirusreserve-louisiana. 105 See Holly Duchmann, East Baton Rouge Parish leads state in new coronavirus cases in May, Greater Baton Rouge Business Report (May 19, 2020), https://www.businessreport.com/newsletters/east-baton-rouge-parish-leadsstate-in-new-coronavirus-cases-in-ma; Dan Swenson et al., Coronavirus in Louisiana, nola.com (May 25, 2020), https://www.nola.com/news/coronavirus/article_7cb2af1c-6414-11ea-b729-93612370dd94.html.
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Parish.106 As of May 21, 2020, 3,319 total people have been diagnosed with COVID-19 in East
Baton Rouge Parish, with 225 confirmed deaths.107 Portions of the state have an infection rate that
is more than double that of New York City, an epicenter of the virus in this country.108
61. Black people have accounted for 55% of all COVID-19 deaths in Louisiana, even
though they represent only 32% of the state’s population.109 Approximately 47% of East Baton
Rouge Parish is Black,110 and the jail is largely comprised of area residents.111
62. Distressingly, since the Governor’s stay-at-home order ended on May 15, 2020,112
Louisiana’s newly reported coronavirus cases skyrocketed by more than 327% in one day, from
May 20th to May 21st.113 A mass outbreak of COVID-19 in any of Louisiana’s jails or prisons,
including the East Baton Rouge Parish Prison, would further strain the limited resources of state’s
healthcare system.
106 Holly Duchmann, East Baton Rouge Parish leads state in new coronavirus cases in May, Greater Baton Rouge Business Report (May 19, 2020), https://www.businessreport.com/newsletters/east-baton-rouge-parish-leads-statein-new-coronavirus-cases-in-may. 107 Reveille Staff Report, Louisiana Coronavirus Update, Reveille.com (May 26, 2020). https://www.lsureveille.com/coronavirus/louisiana-coronavirus-update-37-040-positive-cases-2-560-covid-19related-deaths/article_01bc9da4-6716-11ea-bf77-2b29230adfbc.html. 108 Oliver Laughland & Lauren Zanolli, A Virus Stalks a County with One of the Highest Death Rates in US: ‘People are Dropping Like Flies,’ The Guardian (Apr. 7, 2020), https://www.theguardian.com/us-news/2020/apr/07/canceralley-coronavirus-reserve-louisiana. 109 David Benoit, Coronavirus Devastates Black New Orleans: ‘This is Bigger Than Katrina,’ Wall St. J. (May 23, 2020), https://www.wsj.com/articles/coronavirus-is-a-medical-and-financial-disaster-for-blacks-in-new-orleans11590226200. 110 United States Census Bureau, QuickFacts, East Baton Rouge Parish, Louisiana, https://www.census.gov/quickfacts/eastbatonrougeparishlouisiana (last visited May 25, 2020). 111 Grace Toohey, East Baton Rouge Parish Jails People at Rates Far Higher than New Orleans and Lafayette: Here’s Why, The Advocate (Sept. 14, 2019), https://www.theadvocate.com/baton_rouge/news/courts/article_aa68a582-c45b-11e9-8439-a7110c42fa80.html (noting that the EBRPP “detain[s] the most local inmates among Louisiana’s six most populous parishes). 112 Assoc. Press, 11 Graphics that Officials Say Tell the Strong of Louisiana’s Fight Against Coronavirus in May, The Advocate (May 11, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_418bba9c93ed-11ea-8311-135ae37e6259.html. 113 The New York Times, Louisiana Coronavirus Map and Case Count, (May 22, 2020), https://www.nytimes.com/interactive/2020/us/louisiana-coronavirus-cases.html.
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63. In light of the impending pandemic, the Governor of Louisiana declared a public
health emergency on March 11, 2020114 and a state of emergency on March 16, 2020115 in response
to the rapidly growing presence of COVID-19 in Louisiana. The Governor also issued a stay-at-
home order on March 22, 2020116 that was extended to May 15, 2020.117 During that time,
although Louisiana’s citizens could venture out to purchase groceries and engage in other essential
activities, individuals were mandated to maintain social distancing and avoid gatherings of more
than 10 people.118
64. The Governor’s May 15th order moving Louisiana to Phase One of reopening does
not reflect a major change from the state’s previous practices.119 Citizens are still required to
practice social distancing, and all non-essential businesses must enforce a strict twenty-five percent
occupancy limit.120
114 State of Louisiana, Exec. Dep’t, Proclamation No. 25 JBE 2020, Public Health Emergency-COVID-19 (Mar. 11, 2020), https://gov.louisiana.gov/assets/ExecutiveOrders/25-JBE-2020-COVID-19.pdf. 115 State of Louisiana, Exec. Dep’t, Proclamation No. JBE 2020-30, Additional Measures for COVID-19 Public Health Emergency (Mar. 16, 2020), https://www.gov.louisiana.gov/assets/Proclamations/2020/30-JBE-2020-PublicHealth-Emergency-COVID-19-additional-measures.pdf. 116 State of Louisiana, Exec. Dep’t, Proclamation No. 33 JBE 2020, Additional Measures for COVID-19 Stay at Home (Mar. 22, 2020), https://gov.louisiana.gov/assets/Proclamations/2020/JBE-33-2020.pdf. 117 State of Louisiana, Exec. Dep’t, Proclamation No. 52 JBE 2020, Renewal of State Emergency for COVID-19 Extension of Emergency Provisions (Apr. 30, 2020), https://gov.louisiana.gov/assets/Proclamations/2020/52-JBE2020-Stay-at-Home-Order.pdf 118 Id. 119 State of Louisiana, Exec. Dep’t, Proclamation No. 58 JBE 2020, State of Emergency for COVID-19 Phase 1 of Resilient Louisiana (May 14, 2020), https://gov.louisiana.gov/news/PhaseOne. Notably, this order states: “All individuals who are at higher risk of severe illness from COVID-19 should stay at home, unless travelling outside the home for an essential activity…Those individuals who are at higher risk of severe illness, as designated by the Centers for Disease Control (CDC) are those with conditions such as asthma, chronic lung disease, compromised immune system (including from smoking, cancer treatment, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS or use of corticosteroids or other immune weakening medications), diabetes, serious heart disease (including heart failure, coronary artery disease, congenital heart disease, cardiomyopathies, and hypertension), chronic kidney disease undergoing dialysis, liver disease, or severe obesity or those who are 65 or older or living in a nursing home or long-term care facility.” 120 Id.
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65. On March 12, 2020, the Sheriff suspended all visitation, volunteer programs, and
tours of the Parish Prison “indefinitely”121 and discontinued all non-emergent off-site trips.122
These restrictions remain in effect despite the Phase One reopening.
66. On March 17, 2020, just hours before the first reported case of COVID-19 in the
Parish, Baton Rouge officials, including Defendant Sheriff Sid Gautreaux, held a press conference
to inform the public they were ready.123 Defendant Gautreaux admitted that it was only a matter
of time before COVID-19 got into the jail.124 He further admitted that a single case inside the
facility could spread rapidly and that the jail’s close confines made social distancing all but
impossible.125 Gautreaux announced a number of steps taken at the jail, including the troubling
decision to open wings of the jail that had been closed—indeed, condemned—for years in order
to house COVID-19-positive individuals.126 Gautreaux promised to “change things on a daily
basis” as more information came in and as the situation developed.127 As COVID-19 spread into
121 East Baton Rough Sheriff’s Office, Message From The Sheriff (last visited May 26, 2020), https://www.ebrso.org/ (explaining, from March through sometime in or around May 2020 that the jail was closed to visitors “indefinitely,” but recently indicating that “Visitation at the EBR Parish Prison will remain suspended until recommended by CDC and the LA Department of Corrections.”); WAFB9, Visitation Policies Impacted by COVID19 (last updated Mar. 23, 2020) https://www.wafb.com/2020/03/13/visitation-policies-impacted-by-covid-/ 122 State of Louisiana, Louisiana Dep’t of Public Safety & Corr., Coronavirus (COVID-19) Response (Mar. 12, 2020), https://doc.louisiana.gov/wp-content/uploads/2020/03/3.13.20-Coronavirus-Inmate-Notification-ofVisiting.pdf. 123 WBRZ Channel 2, Watch Live: Mayor-President Sharon Weston Broome Provides EBR Residents with an Update on the Parish’s Response to the Coronavirus Pandemic (Mar. 17, 2020, 1:20 p.m.), https://www.facebook.com/watch/?v=281500782819991. 124 Lea Skene & Jacqueline DeRobertis, East Baton Rouge Sheriff: It’s only a matter of time before coronavirus arrives in jail, The Advocate (March 17, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_be4301c6-6887-11ea-b794ab2c5dcccad8.html. 125 Paul Braun, Louisiana Considers Early Release Of Some Inmates Among Measures To Reduce COVID-19 Outbreak, 89.9 WWNO New Orleans Public Radio (Mar. 17, 2020), https://www.wwno.org/post/louisianaconsiders-early-release-some-inmates-among-measures-reduce-covid-19-outbreak. 126 Id. 127 WBRZ Channel 2, Watch Live: Mayor-President Sharon Weston Broome Provides EBR Residents with an Update on the Parish’s Response to the Coronavirus Pandemic at 3:49 (Mar. 17, 2020, 1:20 p.m.),
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jail, however, Defendants failed to keep this promise.
67. Defendants well know that people incarcerated in the Jail face a significant risk of
exposure to COVID-19. The CDC, the LDH-OPH, the Chief Justice of the Louisiana Supreme
Court, the Parish Mayor-President,128 medical experts, and various advocates129 have repeatedly
alerted the community and Defendants to the imminent risk of serious harm and death,130 and the
preventive measures necessary to protect against the further spread of COVID-19. Indeed, the
Defendant Sheriff himself even admitted in mid-March that “it’s only a matter of time before
coronavirus arrives in the jail.”131
68. On March 25, 2020, the Mayor-President held a conference call with
representatives from the East Baton Rouge Parish Prison Reform Coalition, the Warden’s Office,
the Sheriff’s Office, the Health Director for the Prison, and the District Attorney and the Public
Defender’s Office to review procedures for addressing the COVID-19 pandemic.132 The Mayor-
President’s comments included an acknowledgment that “[m]ost people in the parish prison have
https://www.facebook.com/watch/?v=281500782819991, beginning at 3:49. 128 Lea Skene & Jacqueline DeRobertis, East Baton Rouge Sheriff: It’s only a matter of time before coronavirus arrives in the jail, The Advocate (Mar. 17, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_be4301c6-6887-11ea-b794-ab2c5dcccad8.html (“implor[ing]” community members to practice social distancing because “[w]e’re talking about life or death issues here”). 129 See, e.g., Vera Institute of Justice, Louisiana must overhaul its justice system practices to respond to COVID-19 (April 9, 2020), available at https://www.vera.org/downloads/publications/Coronavirus-Guidance-Louisiana-JusticeSystem.pdf. 130 These deaths touched Corrections officials closely. In April, the Warden and Medical Director at the state prison in Avoyelles Parish died of COVID-19-related conditions, as recognized by Department of Corrections Secretary James LeBlanc. See WDSU Digital Team, Warden, Medical Director of Louisiana Prison Die After Contracting Coronavirus, State Says, WDSU (Apr. 20, 2020), https://www.wdsu.com/article/2-new-covid-19-related-deathsreported-by-louisiana-prison-system-1-inmate-1-employee/32214252. 131 Lea Skene & Jacqueline DeRobertis, East Baton Rouge Sheriff: It’s only a matter of time before coronavirus arrives in the jail, The Advocate (Mar. 17, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_be4301c6-6887-11ea-b794ab2c5dcccad8.html. 132 Ex. 2, E-mail from Darryl Gissel to Jennifer Harding (Apr. 1, 2020)
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not been convicted and [are] innocent until proven guilty,” and that “[w]e have a duty to look out for their well-being.”133
69. On April 2, 2020, the Chief Justice of the Louisiana Supreme Court sent an open letter to Louisiana’s District Judges—including those in the 19th Judicial District Court in Baton Rouge—highlighting the importance of “minimiz[ing] the number of people detained in jails” and asking the judges to assess “all detainees” with an eye toward modifying conditions of detention; she specifically called, for example, for the release of individuals charge with misdemeanors, nonviolent offenses, and city holds, and for the reduction of bail for individuals charged with other criminal matters.134 The Chief Justice warned that “[a]n outbreak of COVID-19 in our jails would be potentially catastrophic for jail staff, the families of jail staff, and inmates” and “[t]he decisions that [Judges] make will have a significant impact on our communities and our state and will save lives.”135
70. On April 8, 2020, the Louisiana Department of Health’s Office of Public Health (LDH-OPH) issued official recommendations regarding prisons and detention centers to the Department of Public Safety and Corrections.136 LDH-OPH recommended several measures that it concluded were “necessary to help control and prevent further spread of COVID-19, . . . a serious and imminent threat to the public health,” and to avoid “overwhelm[ing] the state’s medical facilities.” Id. The thirteen bullet-pointed recommendations in the letter include activities such as providing soap for hand-washing or alcohol-based sanitizers, screen individuals suspected of having COVID-19 by a trained emergency medical personnel and “transport anyone you think
133 Ex. 14, Mayor Broome West’s Comments. 134 Ex. 15, LA Sup. Ct. Letter at 1-2 (Apr. 2, 2020). 135 Id. 136 See Ex. 16, LDH Office of Public Health Guidance (Apr. 8, 2020).
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might have COVID-19 to a healthcare facility,” provide appropriate personal protective equipment to all staff and inmates, isolate sick individuals away from all other individuals in medically appropriate housing units, daily cleaning for surfaces, and ensure that all individuals in the facility “maintain a distance of at least 6 feet from each other” or “reduce the size of the jail population . . . to comply with this recommendation.” Id. This memo was rescinded within hours without explanation or alternative guidance being issued.
71. For years, Baton Rouge policymakers have acknowledged that the old part of the jail—which was condemned and closed before this pandemic—is unfit for the safe detention of people and the provision of health care. In 2015, Sheriff Gautreaux told the Parish’s Metro Council the “old part of the prison is really in deplorable condition. We have issues with ventilation; with plumbing. Really it’s laid out in the old way, that poses a problem from a safety standpoint for the safety of the inmates in the prison . . . .”137 He concluded that the current facility is “not adequate for providing health care” and admitted the “if [investigators from the federal Department of Justice] came in that prison today, they would shut half of it down.”138 The Metro Council also heard that Dr. Rani Whitfield, who had worked in the jail for 16 years, witnessed a “significant decline in care to patients” due to underfunding and understaffing.139 Councilwoman BanksDaniel presciently described the health care situation in the jail as “catastrophic.”140
72. An assessment of the jail’s health care system by Health Management Associates (“HMA”), commissioned by the Baton Rouge Metro Council, confirmed that the health “care
137 Ex. 17, City of Baton Rouge/Parish of East Baton Rouge, Jan. 14, 2015 Metro. Council Mtg., Items 13P and Q Part 1 (filed in traditional manner). 138 Id. 139 Ex. 18, City of Baton Rouge/Parish of East Baton Rouge, Aug. 26, 2015 Metro. Council Mtg. 28:10, Item 9 Part I and II (filed in traditional manner). 140 Id. at 51:39.
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provided is episodic and inconsistent”141 and that only about 36% of the needed doctor positions
were filled.142 HMA highlighted the jail’s “notably deficient” physical plant and “inadequate
medical units, dental suites, infirmary space, [and] . . . medical/MH screening space.”143 HMA
concluded to the Metro Council that “[a]ny solution will be more expensive than the current
system”;144 HMA believed that the Parish’s investment in the jail’s health care system would need
to double from approximately $five million in 2016 to $ten million.145 Rather than make the
necessary investment, the City/Parish’s “solution” was to outsource health care to a private, for-
profit company, CorrectHealth.146 The total increase for the jail’s health care budget when the
City/Parish hired CorrectHealth was only 12%.147
73. The result has been nothing short of catastrophic. CorrectHealth failed to increase
staffing levels for health care workers at the jail; instead, the company decreased them.148 Not
surprisingly, the death rate at the jail—which was already high compared to the national average—
continued to climb under CorrectHealth’s management and now far exceeds the national mortality
141 Ex. 19, Health Mgm’t Assocs. Final PowerPoint at 24. 142 Id. at 12. 143 Id. at 23. 144 Id. at 30. 145 Ex. 20, Health Mgm’t Assocs. Draft PowerPoint at 27. 146 Ex. 21, CorrectHealth Contract. 147 Compare Consol. Gov’t of the City of Baton Rouge & Parish of East Baton Rouge, Louisiana, Annual Operating Budget For the Year Beginning January 1, 2016 at 146, available at https://www.brla.gov/DocumentCenter/View/3632/2016-City-Parish-Budget (budgeting $4,860,230 for medical services at the jail in 2016), with Ex. 21, CorrectHealth Contracts (contract providing CorrectHealth with $5,292,429.96 to provide medical services in the jail). 148 Compare Consol. Gov’t of the City of Baton Rouge & Parish of East Baton Rouge, Louisiana, Annual Operating Budget For the Year Beginning January 1, 2016 at 66, 146-47, https://www.brla.gov/DocumentCenter/View/3632/2016-City-Parish-Budget (funding 36 FTE, including 20 LPN positions, and contract services for “medical director, a physician, a dentist, a psychiatrist, a psychiatric nurse practitioner, an infectious disease physician, an x-ray technician, oral surgery, and ophthalmology services”) with Ex. 21, CorrectHealth Contract (providing a total of 38.9 FTE, including .5 FTE medical director and no other doctor level services).
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rate.149 74. Advocates have long protested against the health care crisis in the jail, and they
redoubled their efforts in light of the COVID-19 pandemic. Several national and local organizations—including Court Watch NOLA, The Bail Project, The Promise of Justice Initiative, VOTE, Advancement Project, and the East Baton Rouge Parish Prison Reform Coalition— circulated a letter to the state district court and city judges on March 20, 2020 calling for “decisive, bold action” to release detainees and reduce the Prison population.150
75. They followed up with a letter to the Sheriff, District Attorney, and district and city court judges (cc-ing the Mayor-President, Police Chief, and Parish Prison Warden) demanding “immediate and drastic action to protect incarcerated people from COVID-19” and highlighting the “close quarters, unsanitary conditions, a population that is more vulnerable to COVID-19, and the large number of people that cycle through the criminal justice system.”151 “The safest way to ensure that EBRPP does not become a vector for COVID-19’s spread is to reduce the number of people who are incarcerated.”152 The advocates also called for compliance with the CDC and other health guidelines, the release of vulnerable populations and pre-trial detainees immediately, education for detainees and staff about how to protect themselves from COVID-19, free access to
149 See, e.g., Shanita Farris & Andrea Armstrong, Dying in East Baton Rouge Parish Prison, Promise of Justice Initiative (July 2018), available at https://promiseofjustice.org/wp-content/uploads/2019/07/Dying-in-East-BatonRouge-Parish-Prison-Final.pdf; see also Ex. 22, Expert Report of Dr. Jeffrey Schwartz at 6, Zavala v. City of Baton Rouge/Parish of E. Baton Rouge, No. 17-cv-656-JWD-EWD (M.D. La. 2018), ECF No. 172-1 (noting the extremely high mortality rate at the jail of “three times the national average” since CorrectHealth took over responsibility for health care at the jail). 150 See Advocates’ Ltr. to Judges (Mar. 20, 2020), available at https://bailproject.org/wpcontent/uploads/2020/03/east-baton-rouge-parish-prison-covid-19.pdf. 151 See Ltr. from East Baton Rouge Parish Prison Reform Coalition to Sheriff Sid Gautreaux, available at https://promiseofjustice.org/wp-content/uploads/2020/03/COVID-19-Prevention-and-Protection-in-East-BatonRouge-Parish-Prison.pdf. 152 Id.
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hygiene supplies, and the development a plan for appropriately housing individuals suspected of being infected with coronavirus that did not include lockdown.153 On this final point, advocates highlighted the “substantial, serious mental harm” caused by lockdowns, which can “exacerbate[e] feelings of stress and anxiety amongst those in custody” and “cause serious, persistent, sometimes permanent damage” while failing to account for viral transmissions by staff or the need for increased medical access during symptomatic periods.154 “The way we treat the most vulnerable at this critical point in time will not only reveal much about our community but will directly impact the safety of all of us . . . .”155
76. On April 22, 2020, the East Baton Rouge Parish Prison Reform Coalition published a community-driven public health plan for addressing the pandemic in the jail, including recommendations to provide testing of everyone detained in or employed by the jail156 and to refrain from using lockdown solitary confinement.157 On May 18, 2020, the Louisiana Stop Solitary Coalition also sent a letter to the Governor’s Healthcare Equity Task Force to express concern over the use of lockdown solitary confinement by the Louisiana Department of Corrections. The Coalition asked that the administration release significantly larger numbers of people from prisons and jails and immediately refrain from using lockdown as a form of medical
153 Id. 154 Id. 155 Id. 156 The need for mass testing is obvious. For example, when the approximately 200 women detained at Elayn Hunt Correctional Center in St. Gabriel, Louisiana, were tested for the virus, about 85% tested positive, yet about three quarters of the confirmed cases were asymptomatic. Lea Skene, 85% of Inmates in St. Gabriel Women’s Prison Got Coronavirus but Most Showed No Symptoms, The Advocate (May 6, 2020, 4:01 PM), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_2c551b72-8fbb-11ea-849ae390bbc57059.html?utm_medium. 157 Ex. 23, East Baton Rouge Parish Prison Reform Coalition, You Can’t Manage Health Care from a Jail: A Community-Driven Public Health Approach to COVID-19 at the East Baton Rouge Parish Prison (Apr. 2020).
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isolation.158
77. In late April, the Jail declined a donation of N-95 masks for the people detained at
the parish prison by a community organization, Voice of the Experienced (“VOTE”), asserting that they did not need the masks.159
78. On March 28, 2020, the jail detected its first detainee with COVID-19.160 The second would come a day later.161 By April 9, 2020, there were eight positive coronavirus cases
in the East Baton Rouge Parish Prison, and four detainees had been sent to Our Lady of the Lake Hospital for severe medical issues from the coronavirus.162 And by May 14, 2020, the jail reported that 93 detainees tested positive for the virus.163 As of April 5, 2020, three Sheriff’s deputies tested
positive, and at least one Sheriff’s deputy who had direct contact with detainees had died from the virus.164
DEFENDANTS’ RESPONSES TO THE COVID-19 PANDEMIC ARE CONSTITUTIONALLY DEFICIENT AND PLACE THE PEOPLE IN ITS CUSTODY
AT HEIGHTENED RISK
79. The East Baton Rouge Parish Prison is designed to hold 1,594 people. The majority—about 89%—of detainees confined in the jail are there pretrial.165 The jail also holds
158 Ex. 24, Ltr. from La. Stop Solitary Coalition to Members of the Prison Subcommittee of the Governor’s Healthcare Equity Task Force re: Alternatives to Solitary and Camp J During COVID-19 (May 18, 2020). 159 See Ex. 25, E-mail from Rev. Alexis Anderson to Darryl Gissel (Apr. 25, 2020). 160 Rachel Thomas, Nick Gremillion, & Kiran Chawla, 2 EBR Inmates Test Positive for COVID-19; Wing of Prison Quarantined, WAFB9 (Mar. 30, 2020), https://www.wafb.com/2020/03/31/ebr-inmate-tests-positive-covid-afterreported-drug-overdose-wing-prison-quarantined/. 161 Id. 162 Ex. 26, EBRPP COVID-19 Update (Apr. 9, 2020). 163 Ex. 1, EBRPP COVID-19 Statistics (May 14, 2020). 164 Lea Skene, East Baton Rouge Deputy—“A Dedicated Public Servant”—Dies from Coronavirus, Sheriff Says, The Advocate (Apr. 5, 2020), https://www.theadvocate.com/baton_rouge/news/ coronavirus/article_27ecdcac-775911ea-9ab3-e72613b104ed.html. 165 See Shanita Farris & Andrea Armstrong, Dying in East Baton Rouge Parish Prison at 12, The Promise of Justice Initiative (July 2018), https://promiseofjustice.org/wp-content/uploads/2019/07/Dying-in-East-Baton-Rouge-Parish-
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individuals on work-release (both pretrial and post-conviction) and post-conviction detainees serving sentences with the Department of Corrections. Currently, the jail confines 1,235 people. Individuals in the Sheriff’s custody are also held in jails across the state, which serve as overflow facilities when the jail is overcapacity.166
80. Despite the repeated urgent calls to reduce jail populations and implement basic protective measures, Defendants have failed to take sufficient steps to do either. And Defendants are woefully unprepared and incapable of taking the necessary precautions to protect and provide adequate medical treatment for the people currently confined in the jail in the face of this unprecedented, life-threatening public health crisis.
81. Policymakers, including the Defendants, instead established de facto policies of detaining people in unconstitutional conditions of confinement and denying adequate health care to detainees. The failure to provide adequate living conditions and health care is not an unintended error but the predictable result of a de facto policy that denies detainees adequate health care, ensuring the suffering and even potential deaths of Plaintiffs from COVID-19.167
A. The East Baton Rouge Parish Prison is Not Fit to Hold Human Beings 82. The EBRPP is a dilapidated warehouse of caged humanity. The jail was built in
1965, with no substantive renovations since the 1980s, and the A, B, and C wings have been condemned since 2018 due to a constellation of conditions that made it impossible to keep people safe.168 Even the parts of the facility that are not condemned are crumbling and decrepit. The
Prison-Final.pdf. 166 Ex. 26, City of Baton Rouge/Parish of East Baton Rouge, Feb. 25, 2015 Metro. Council Mtg. 00:23, Item 13 Part I (filed in traditional manner). 167 See Shepherd v. Dallas Cty., 591 F.3d 445, 449 (5th Cir. 2009). 168 See Lea Skene, Officials close three wings at aging East Baton Rouge Prison because of safety concerns, The Advocate (Dec. 31, 2018), https://www.theadvocate.com/baton_rouge/news/article_56230150-0315-11e9-b84f-
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buildings where people are housed are in terrible condition. The roof leaks, the walls and floors
are filled with mold and rust, the showers and toilets are broken or bug-infested on many of the
housing lines (“lines), the windows are so dirty that detainees cannot see out of some of them, and
rats have overrun some dorm areas, requiring detainees to sleep with their food to prevent it from
being eaten by vermin. On some lines, the walls are streaked with blood and other bodily fluids. The bars on the housing lines are “gunked up with mold, juice, spit, and old food.”169
83. The jail has a long and ignoble history of medical issues and poor medical care, and
it has one of the highest death rates—largely related to medical neglect—of all jails in the country.170 The jail is responsible for the wrongful deaths of numerous men and women.171 All
this before a pandemic that threatens a fatality rate of epic proportions.
84. Since mid or late March, the facility has been closed to visitors—including
attorneys—and the people confined inside this facility have limited access to their loved ones and
the outside world.
B. Critical Social Distancing, Sanitation, and Precautionary Protections are Not Possible in the Jail’s Quarantined Housing Lines
97327cf57814.html (“Three wings of the East Baton Rouge Parish Prison were closed in 2018 because of safety concerns for both guards and inmates”) 169 Ex. 4 to Pls.’ Emergency Mot. for TRO and Prelim. Inj. (“TRO”), Declaration of Forrest Hardy ¶ 15 (“Hardy Decl.”). 170 Shanita Farris & Andrea Armstrong, Dying in East Baton Rouge Parish Prison at 12, The Promise of Justice Initiative (July 2018), available at https://promiseofjustice.org/wp-content/uploads/2019/07/Dying-in-East-BatonRouge-Parish-Prison-Final.pdf. 171 See generally O’Quin v. Gautreaux, No. 14-98-BAJ-SCR, 2015 WL 1478194 (M.D. La. 2015); Lewis ex rel. Johnson v. E. Baton Rouge Parish, No. 16-352-JWD-RLB, 2017 WL 2346838 (M.D. La. 2017); Cleveland v. Gautreaux, No. 15-744-JWD-RLB, 2018 WL 3966269 (M.D. La. 2018); Zavala v. City of Baton Rouge/Parish of E. Baton Rouge, No. 17-656-JWD-EWD, 2018 WL 4517461 (M.D. La. 2018); Shanita Farris & Andrea Armstrong, Dying in East Baton Rouge Parish Prison, Promise of Justice Initiative (July 2018), https://promiseofjustice.org/wpcontent/uploads/2019/07/Dying-in-East-Baton-Rouge-Parish-Prison-Final.pdf; see also Ex. 22, Expert Report of Dr. Jeffrey Schwartz at 6, Zavala v. City of Baton Rouge/Parish of E. Baton Rouge, No. 17-cv-656-JWD-EWD (M.D. La. 2018), ECF No. 172-1 (noting the extremely high mortality rate at the jail of “three times the national average” since CorrectHealth took over responsibility for health care at the jail).
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85. Since on or around March 28, 2020, all of the general population “housing lines” in which detainees are confined (“lines”) have been “quarantined.” The detainees are not permitted to leave their quarantined housing lines for any reason, except to obtain emergency medical care or when they are moved to the solitary confinement lines used for coronavirus patients. They cannot go to court, and several detainees have missed court dates that otherwise would have allowed them to walk free. They are also prevented from going to the meal hall, outdoor recreation spaces, or anywhere else in the facility. All life happens on their lines.
86. General population housing lines are made up of either or two large dorm rooms filled with bunk beds or a row of cells that house approximated two to four people, along with a communal “day room” and a multi-person bathroom. There is no way to socially distance on these lines, even with population reductions spurred by the pandemic. The dorm-style housing lines can hold between 24 and approximately 100 people in each dorm room.
87. Detainees sleep in bunks that are no more than a few feet apart, or in some cases only a couple inches apart.172 The aisles between the rows of beds are only wide enough for two people to pass at once. The individuals on these lines cannot be six feet apart while they are sleeping or moving around these dorm rooms.
88. Detainees spend most of their days in the day rooms on each line and cannot socially distance here either. During shift change and roll call, which happens twice a day and lasts for up to an hour each time, detained people are all required to be in the day room, often clumped around the door waiting for guards to call their names. The twice-a-day “pill call” is much the same: detained men and women are required to line up one closely behind the other in
172 See Ex. 3 to TRO, Declaration of Christopher Lee Rogers Decl. ¶ 49 (“We have to climb into our beds from the foot of the bed” because they are so close together).
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the day room to receive their prescribed medications—for conditions such as high blood pressure, diabetes, HIV, and mental health needs—from CorrectHealth’s nurses. They have to take their medications in front of her, without the opportunity to wash their hands first.
89. During the rest of the day, detainees cannot leave their housing line and often congregate in the day room to watch television—their primary source of information about the coronavirus—talk on the telephone with their lawyers or family, or eat. The day rooms do not have enough seating to hold everyone on the line, and the seating available forces people to be within six feet of each other when they watch TV, eat, or otherwise spend their days in the communal space.
90. The furniture in the day rooms is bolted to the floor, so individuals detained in these facilities cannot move the tables or chairs to create more distance.
91. Jail officials refused to accept donated N95 masks from local non-profit VOTE to protect against the spread of the disease.173 The jail initially handed out masks to the people it detained. These masks were made of a flimsy material, but the jail made the detainees use one for several days at a time. The jail did not replace torn or dirty masks—neither of which are sufficient to prevent the spread of the disease. Shortly thereafter, the jail largely stopped handing out masks, even to the men suspected of having the coronavirus, and instead provided thin cloth bandanas to all the people in its custody. Guards collect these bandanas from the detainees only about once a week to launder them before redistributing them. But the laundry facilities use only the speed wash setting to clean these items.
92. The lines are not sufficiently cleaned. In lieu of cleaning themselves, guards pick detainees to clean the housing lines throughout the jail. At least one Plaintiff was picked to clean
173 See Ex. 25, E-mail from Rev. Alexis Anderson to Darryl Gissel (Apr. 25, 2020).
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some of the COVID-19 solitary confinement units and developed COVID-19 symptoms two days later; he was then sent to solitary confinement for his symptoms.
93. Guards bring limited cleaning supplies onto the lines. Often, these supplies are just a mop and bucket with water; about two to three times a week, guards might dilute some cleaning solution into the water, but that solution often is not bleach. Detainees are required to mop the floors, and they try to clean other surfaces with rags torn from old towels. But those surfaces get so many touches throughout the day that they do not stay clean for long. The tables where people eat, for example, are littered with food particles throughout the day. These high-touch communal surfaces are not and cannot be cleaned between uses and, even after they are cleaned, they do not stay clean for long.
94. The bathrooms are also cleaned, at most, once a day, even though all the detainees share the same facilities. This cleaning has little effect, though, as the shower area is covered in mold and scum so thick the men can scrape it off the wall with their fingernails even after the shower has been cleaned. On some lines, upwards of 80 men have to share 5 showers and 5 toilets.
95. It is not possible to maintain adequate social distance in the bathrooms. Toilets, sinks, and showerheads are so close that the detainees can touch each other while using them. None of the toilets in the jail have lids to contain splashes or particulate matter.
96. Detained individuals also share the limited number of telephones on the lines, and the telephones are not cleaned between uses. Without chemicals or cleaning wipes, the detainees do their best to wipe the heavily used phones on their uniforms or clean them with soap and water. But this is insufficient, and detainees are left to put a sock on the phone (and sometimes also on their hands) to attempt to protect themselves from transmission of the virus.
97. The jail is supposed to provide each detainee with one bar of soap, one roll of toilet
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paper, a toothbrush, and toothpaste every week. At least during the pandemic, however, the jail has sometimes failed to meet this obligation or to provide each detainee with all of the required supplies. Detainees do not receive any supplies to help them fight transmission of the virus; the soap they receive is only deodorant soap, and is not effective against the virus.174 In addition to washing their bodies, detainees had to use soap and water to clean their areas, their bandanas, and sometimes the telephone because they could not get adequate cleaning supplies for these purposes from the guards. As a result, their bars of soap generally did not last the full week, and detainees had to supplement with provisions purchased from the commissary with funds loved ones put into their jail accounts.
98. Guards feed the detainees on their housing lines during quarantine. Food for the detainees is cooked by other detainees in an unsanitary kitchen. The smell of spoiled food pervades the kitchen, and old food is crusted onto the serving area, on the counter, and on the walls. Guards let the kitchen workers clean the hot box, where warm food is stored, with the same broom they use to sweep the floor.
99. During the coronavirus pandemic, guards wheel cold food onto each housing line in a cart that the guards then use to collect the trash from the line. The guards wear the same gloves to hand food to everyone on the line and on other lines. Sometimes, the guards do not wear masks or gloves on the line at all, most recently noting that such protections were no longer necessary.
100. Jail staff do not provide detainees with sufficient information about the coronavirus, its symptoms, or how to protect themselves from the virus. On the Q9-10 lines, guards even turned off the television when news about the coronavirus came on. Jail staff keep information from
174 Ex. 9, Rottnek Decl. ¶¶ 17, 42.
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detainees about coronavirus in the facility and in the community, and they do not instruct detainees on proper handwashing or mask-wearing techniques.
C. Defendant City of Baton Rouge (through CorrectHealth) Provides Inadequate Medical Care to Prevent the Transmission of COVID-19 101. The first detainee at the jail was hospitalized for coronavirus on March 28, 2020
and the second followed the very next day.175 Staff left the man on the Q11-12 line until he was so sick he could barely walk.
102. At that time, Defendants told the public they were checking every detainee’s temperature in an effort to combat coronavirus.176 But Defendants did not start universal temperature checks until sometime in early or mid-April, after the first death and after numerous men put in sick calls for COVID-19-related symptoms. Even then, Defendant CorrectHealth chose to check only temperatures, rather than examining a broader list of COVID-19 symptoms. Nurses completed temperature checks during pill call, forcing potentially sick men to stand close in line to other men in the dorm. Social distancing is not possible during pill call.
103. If an individual had an elevated temperature—supposedly over 100.4 degrees Fahrenheit177—CorrectHealth employees were supposed to test him or her and directed that the detainee be moved off the line, even before any test results came back. But CorrectHealth employees did not ensure that the individuals were moved immediately, and guards often left the individuals on the line around their peers for various amounts of time, sometimes as long as twelve
175 Rachel Thomas, Nick Gremillion, & Kiran Chawla, 2 EBR Inmates Test Positive for COVID-19; Wing of Prison Quarantined, WAFB9 (Mar. 30, 2020), https://www.wafb.com/2020/03/31/ebr-inmate-tests-positive-covid-afterreported-drug-overdose-wing-prison-quarantined/. 176 Ex. 2, E-mail from Darryl Gissel to Jennifer Harding (Apr. 1, 2020); Rachel Thomas, Nick Gremillion, & Kiran Chawla, 2 EBR Inmates Test Positive for COVID-19; Wing of Prison Quarantined, WAFB9 (Mar. 30, 2020), https://www.wafb.com/2020/03/31/ebr-inmate-tests-positive-covid-after-reported-drug-overdose-wing-prisonquarantined/. 177 Ex. 2, E-mail from Darryl Gissel to Jennifer Harding (Apr. 1, 2020).
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hours. 104. CorrectHealth employees have not continued to check temperatures through the
present, however. They stopped universal temperature checks in late April or early May and have reverted to checking only individuals who display coronavirus symptoms. Even then, they regularly choose to leave men with elevated temperatures on the housing line until they are too sick to be ignored, in violation of the CDC’s guidelines. They do not provide these men with any treatment for coronavirus on the lines; they often are unable to access even over-the-counter medications such as Tylenol or Mucinex, which the jail stocks.
105. The jail stopped testing detainees for coronavirus about a week before they stopped taking temperatures. The only individuals they currently test are those who are so sick that they are moved off the line to the solitary confinement lines.
106. Individuals who need medical care beyond their regular medication or temperature checks are required to complete a sick call form, even if they need more emergent care. Detainees have to request sick call forms from the guards before they can submit them. Sometimes, these requests are met with violence by jail staff.178 Other times, it takes up to a couple days for nurses to respond.
107. Other times, detainees remain on the line—visibly sick to all—without any attention from the medical staff. Nurses often do not come on the housing lines except during pill call, and jail staff ignore symptoms such as coughing. They respond only when someone is too sick to get out of their bed. Jail staff has started bringing sick people onto the housing lines and
178 See, e.g., Zoe Tillman, A Video Shows A Sheriff’s Deputy Choking An Inmate. The Inmate Says He Faced Retaliation For Repeatedly Asking For Medical Care, BuzzFeedNews (Apr. 16, 2020), https://www.buzzfeednews.com/article/zoetillman/video-louisiana-inmate-choked-coronavirus (showing video footage of a sheriff’s deputy choking a handcuffed detainee until he became unconscious and Defendant Grimes claiming the force used was not excessive).
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will leave the men for a few hours or overnight until it is obvious that the person is too sick and— in the jail’s estimation—needs to be moved to lockdown.
108. Upon information and belief, guards, nurses, and other staff at the facility do not undergo regular testing, even as they move about in a community that has a significant outbreak of COVID-19.
D. Defendants’ Solitary Confinement Lines Do Not Constitute Acceptable Medical Isolation 109. Individuals who have or are suspected of having COVID-19 are moved to a solitary
confinement line in the A, B, or C wings, the same wings of the old jail that were condemned and shut down in 2018. Upon information and belief, the jail did not repair or deep clean these lines before they moved detainees onto them. The lines remain filthy and unsafe. In addition to the conditions that plague the rest of the jail, these lines are covered in black mold; are home to large rats and spiders; have showers that leak water down the hallway; and have only questionably potable water in the cells. Individuals detained on solitary confinement lines are not permitted to leave their lines for any reason.
110. Individuals on the A, B, and C lines are confined in small, often poorly ventilated units with either one or four-person cells. Detainees on the B line often share their cells with one or two other people, and the beds in those cells are less than four feet apart, making it impossible to maintain a distance of at least six feet. The cells on each of these lines are separated by thin metal walls, but the front of the cells have bars that allow for the consistent circulation of ambient air. Men can reach out of the bars on the front of their cells and into the cells next to them; they pass hygiene supplies, books, and food up and down the line this way.
111. Detainees in solitary confinement are locked in their cells by the guards for approximately 23 hours per day. Some individuals get as little as 15 minutes out of their cell each
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day to shower and call their loved ones. The solitary confinement lines have no access to televisions or radios. Guards beat up, mace, or threaten men who seek extra time out of their cells to shower or make phone calls. After they’ve finished giving every detainee their turn out of their cells, the guards often leave the lines entirely—sometimes for hours at a time—and detainees have to beat on the door or kick their walls to get the guards’ attention if they need it.
112. The same concerns regarding social distancing, sanitation, and protections against transmission that exist on the quarantined general population lines are present in the solitary confinement lines as well.
113. As in the quarantined general population lines, all detainees on a solitary confinement line share the same shower and telephone. But these amenities are generally not cleaned between each use—even though many of the men on the line are sick—and may not even be cleaned every day. Detainees put a sock over the phone to protect themselves when they call their loved ones or their attorneys. The showers on most of these lines are so cold that they’re unusable, and men often have to bathe in the sinks in their cells.
114. The limited cleaning supplies provided by the guards (a mop, bucket, water, and occasional diluted, unidentified non-bleach chemicals) are insufficient to properly sanitize their living spaces. Detainees are not allowed to use these cleaning supplies in their individual cells. At one point, guards on the C01 line provided each detainee with just one paper towel to wipe down mattresses that were previously used by COVID-19-positive detainees.
115. The people detained on solitary confinement lines are not permitted access to the jail’s commissary, where they could purchase hygiene supplies and more or better food. Instead, these individuals have to depend on the state-issued supplies of one bar of soap, one roll of toilet paper, a toothbrush, and toothpaste no more than once a week. At least during the pandemic, the
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jail failed to meet this obligation consistently and completely—often missing weeks or missing one or more of the required items. Those individuals detained around other sick people had to conserve their soap and hygiene products, as the bars of soap they received would often last only a short period of time. In addition to washing their bodies, detainees had to use soap and water to clean their cells, their bandanas, and sometimes the telephone because they could not get adequate cleaning supplies for these purposes from the guards.
116. In short, the solitary confinement lines that Defendants use to warehouse people who have contracted COVID-19 or are displaying symptoms commensurate with the virus are incredibly punitive and indistinguishable from the lines used for disciplinary segregation.
117. Social scientists uniformly document that solitary confinement, even for a period of days or weeks can have profound psychological and physical effects, such as a heightened state of anxiety and nervousness, headaches, insomnia, lethargy or chronic fatigue (including lack of energy and lack of initiative to accomplish tasks), nightmares, heart palpitations, and fear of impending nervous breakdowns. Other documented effects include obsessive ruminations, confused thought processes, an oversensitivity to stimuli, irrational anger, social withdrawal, hallucinations, violent fantasies, emotional flatness, mood swings, chronic depression, feelings of overall deterioration, as well as suicidal ideation. Individuals in prolonged solitary confinement frequently fear that they will lose control of their anger, and thereby be punished further.
118. Although persons sent to the A, B, and C solitary confinement lines have celland/or line-mates, being locked up around the clock—particularly in the cramped conditions in the jail’s solitary confinement lines—does not necessarily compensate for the feelings of isolation and disorientation that these individuals frequently experience. See Madrid v. Gomez, 889 F. Supp. 1146, 1265, 1299-30 (N.D. Cal. 1995).
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E. The City/Parish, through CorrectHealth, and the Jail Fail to Provide COVID-19Positive Detainees With Even Remotely Adequate Medical Care for the Virus in Solitary Confinement 119. Proper medical care is not provided to people even when they are placed on the
COVID-19 solitary confinement lines. CorrectHealth nurses do not regularly check detainees’ breathing patterns, evaluate other symptoms, offer breathing treatments, or provide access to negative pressure rooms. Nurses do not always even take the temperatures of the individuals in solitary confinement, either.
120. The only medical care the CorrectHealth nurses and the jail staff provide to coronavirus patients is Tylenol, Mucinex or some other sinus pills, Vitamin C, and sometimes Gatorade. Nurses hand these out during once or twice daily pill calls, but provide no other care for the coronavirus.
121. Defendant CorrectHealth’s nurses also often reject other requests for medical care that they receive from the men on these solitary confinement lines during pill call or through a sick call, noting on at least one occasion that they do not have the resources to provide that care during the pandemic.
122. Medical emergencies in solitary confinement require that detainees pound on the door to the line or kick the walls in their cells to get the guards’ attention. Sometimes, the guards respond after about fifteen to twenty minutes; sometimes, they do not respond at all. Guards screen all medical issues first and make the decision to call the medical staff if they believe it necessary. Sometimes, detainees have to ask their families to call the Warden or medical department to get any medical attention in solitary confinement. Nurses appear scared to come on the lines, physically running away as soon as they finished pill call, and some get mad at the detainees for seeking their assistance.
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123. Guards and nurses do not always wear proper protective equipment, including
masks, gloves, and body suits, when interacting with the detainees on the solitary confinement
lines.
124. Detainees can be moved off the line and back to their quarantined lines after two
negative tests in a row. Many men have trouble meeting that requirement due to the conditions in which they are housed, and some men have spent over a month on solitary confinement to date.179
This is even more concerning because the solitary confinement lines include individuals who have
documented medical vulnerabilities, including high blood pressure, diabetes, HIV, and other
conditions.
IMMEDIATE RELEASE IS THE ONLY RESPONSE THAT SERVES PUBLIC HEALTH, COMMUNITY SAFETY, AND THE INDIVIDUAL SAFETY OF EACH
CLASS MEMBER
125. Immediate release of medically vulnerable individual Plaintiffs, as well as the
subclass of medically vulnerable people they represent, remains a necessary public health intervention.180
126. Given the size of the jail, the configuration of its cells, and staffing, the jail
population must be significantly decreased to ensure adequate social distancing. In this unique
moment, release enhances the safety of the community and is necessary to protect the Plaintiff’s
own health and safety. Plaintiffs must be able to exercise self-protective measures in a sanitary,
179 In early April, Defendant Gatreaux and Defendant Warden also directed the transfer of sick COVID-19 positive patients to the Louisiana State Penitentiary, an infamous prison better known by the name Angola. Defendants halted this practice around mid-April, after sending the largest number of men from a single facility; more than 10 men from the jail remain at Angola today. Cf. Jacqueline DeRobertis & Lea Skane, East Baton Rouge Sheriff: It’s only a matter of time before coronavirus arrives in jail, The Advocate (March 17, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_be4301c6-6887-11ea-b794ab2c5dcccad8.html; Jerry Iannelli, Louisiana’s Data on Coronavirus Infections Among Prisoners is Troubled and Lacks Transparency, The Appeal (May 1, 2020), https://theappeal.org/louisiana-doc-covid-19-data. 180 See, e.g., Ex. 27, Declaration of Dr. Susan Hassig ¶¶ 3-14; Ex. 9, Rottnek Decl. ¶¶ 10-12, 27-34, 61-64; see also supra n.17.
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disinfected space and to maintain social distance from other community members to flatten the curve of the virus’s spread and protect themselves from infection.
127. Release is needed not only to prevent irreparable harm to members of the medically vulnerable subclass, but also to sufficiently reduce the incarcerated population at the jail to ensure proper social distancing necessary to reduce transmission for all class members and the wider public. Because of the speed at which COVID-19 spreads and the danger it poses, immediate release is both necessary and the least intrusive intervention to ensure Class Members are provided medically and constitutionally sufficient treatment.
128. If immediate action is not taken to dramatically reduce the population of the jail, all people who remain incarcerated will be at grave and unacceptable risk of contracting COVID19—a serious and potentially life-threatening illness. People confined in prisons and jails must “be furnished with the basic human needs, one of which is ‘reasonable safety,’” Helling v. McKinney, 509 U.S. 25, 33-34 (1993) (citations omitted), which is virtually impossible given the realities of the COVID-19 pandemic and the limitations inherent in the Jail.
129. With confirmed COVID-19 cases and deaths amongst staff and detainees, an outbreak within the facility has already begun. To meaningfully reduce the risk of serious illness and death, the jail population must be reduced drastically. After reviewing declarations from detainees detailing conditions inside the jail, Dr. Fred Rottnek, [credentials], asserted that “[s]ince social distancing is impossible at present, the only effective means of reducing risk of infection for medically vulnerable populations is their release from jail or prison.”181 He further stated that, “[f]rom a public health perspective, it is my strong opinion that there is no way short of release to
181 Ex. 9, Rottnek Decl. ¶ 57.
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protect the medically vulnerable from grave risk of imminent infection and death.”182 Tulane University Professor Dr. Susan Hassig, MPH, DrPH, similarly stated, “If the jail does not have the space to implement these most basic of virus spread suppression methods, the jail needs to decrease the size of the detainee population . . . . The persons at greatest risk, those with the aforementioned pre-existing medical conditions, should be prioritized for release to family or friends.”183
130. Medical experts specializing in correctional health similarly share Dr. Hassig’s urgent recommendations to dramatically reduce the population of detention centers, jails, and prisons. Dr. Ranit Mishori, Senior Medical Consultant for Physicians for Human Rights and an expert in correctional health issues, has concluded that “[r]eleasing people from incarceration is the best and safest way to prevent the spread of disease and reduce the threat to the most vulnerable incarcerated people” and that “[i]mmediate release is crucial for individuals with chronic illnesses or other preexisting conditions.”184 Release is “both necessary and urgent” given that “[t]he window of opportunity is rapidly narrowing for mitigation of COVID-19.”
131. Dr. Jonathan Giftos, the former Medical Director for Correctional Health Services at Rikers Island, concluded that, “the only way to really mitigate the harm of rapid spread of coronavirus in the jail system is through depopulation, releasing as many people as possible with a focus on those at highest risk of complication.”185
132. Other correctional medical and public health experts have also urged the release of people from incarceration given the heightened risk of transmission and infection, including Dr.
182 Id. ¶ 63. 183 Ex. 27, Hassig Decl. ¶ 42 184 Ex. 12, Mishori Decl. ¶ 46. 185 ‘Recipe for disaster:’ The spread of corona virus among detained populations, MSNBC (Mar. 18, 2020), https://www.msnbc.com/all-in/watch/-recipe-for-disaster-the-spread-of-coronavirus-among-detained-populations80947781758.
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Marc Stern (the former Assistant Secretary for Health Care at the Washington State Department of Corrections),186 Dr. Robert B. Greifinger (former manager of medical care for people incarcerated in the New York State prison system and current federal court monitor of medical care in three large county jails),187 a group of doctors who work in New York City’s jails, hospitals and shelters,188 as well as a group of more than 200 Johns Hopkins faculty in public health, bioethics, medicine, and nursing.189
133. These experts have opined that unless social distancing can be achieved, it is impossible to protect public and individual health. Release is thus necessary under the Constitution to respond to this unprecedented coronavirus pandemic.
134. Releasing people from the jails would also reduce the burden on regional hospitals and health centers.
CLASS ACTION ALLEGATIONS 135. The Named Plaintiffs bring this action on behalf of themselves and all others similarly situated as a class action under Federal Rule of Civil Procedure 23(b)(2). 136. The class that Plaintiffs seek to represent is defined as all current and future persons held at the East Baton Rouge Parish Prison during the course of the COVID-19 pandemic (“Jail Class”). 137. Plaintiffs also seek to represent the following three subclasses:
a. The “Pretrial Subclass” is defined as: “All current and future persons detained at the East Baton Rouge Parish Prison during the course of the COVID-19 pandemic
186 Ex. 6, Stern Decl. ¶¶ 10-12, 14. 187 Ex. 13, Greifinger Decl. ¶ 13. 188 Brad Lander, Doctors in NYC Hospitals, Jails, and Shelters Call on the City to Take More Aggressive Action to Combat the Spread of Coronavirus, Medium (Mar. 12, 2020), https://medium.com/@bradlander/doctors-in-nychospitals-jails-and-shelters-call-on-the-city-totake-more-aggressive-action-to-fb75f0b131c2. 189 Letter from Johns Hopkins faculty to Governor Hogan (May 4, 2020), https://bioethics.jhu.edu/wpcontent/uploads/2019/10/JohnsHopkins-faculty-letter-on-COVID-19-jails-and-prisons.pdf.
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who have not yet been convicted of the offense for which they are currently held in the jail.”
b. The “Post-Conviction Subclass” is defined as: “All current and future persons detained at the East Baton Rouge Parish Prison during the course of the COVID19 pandemic who are have been sentenced to serve time in the jail or who are otherwise in the jail as the result of an offense for which they have already been convicted.”
c. The “Medically Vulnerable Subclass” is defined as: “All members of the Jail Class who are also over the age of sixty-five, or who, regardless of age, experience an underlying medical condition that places them at particular risk of serious illness or death from COVID-19, including but not limited to (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g., bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure, and coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; and/or (l) a current or recent (last two weeks) pregnancy.”
138. This action is brought and may properly be maintained as a class action pursuant to
Rule 23 of the Federal Rules of Civil Procedure. This action satisfies the requirements of
numerosity, commonality, typicality, and adequacy. Fed. R. Civ. P. 23(a).
139. As of May 21, 2020, the jail confined over 1,235 people, all of whom are eligible
members of the Jail Class. Therefore, the class and subclasses meet the numerosity requirement of
Federal Rule of Civil Procedure 23(a).
140. The subclasses are also too numerous for joinder of all members to be practicable.
Presumptively innocent pretrial detainees constitute approximately 89% of all people in the jail.190
The Pretrial Subclass thus includes over 1,000 people, and the Post-Conviction Subclass includes
190 Shanita Farris & Andrea Armstrong, Dying in East Baton Rouge Parish Prison at 12, The Promise of Justice Initiative (July 2018), available at https://promiseofjustice.org/wp-content/uploads/2019/07/Dying-in-East-BatonRouge-Parish-Prison-Final.pdf.
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over 100 people, by the most conservative estimates. Demographic data regarding the health of correctional populations indicates that well over 30% of detained people suffer from at least one condition rendering them medically vulnerable.191 Thus, the medically vulnerable subclass likely contains hundreds of people as well.
141. Joinder is impracticable because the class members are numerous; the class is fluid due to the inherently transitory nature of pretrial incarceration; and the class members are incarcerated and low-income, which limits their ability to institute individual lawsuits. Certifying this class supports judicial economy.
142. Common questions of law and fact exist as to all members of the class. The Named Plaintiffs seek common declarative and injunctive relief concerning whether Defendants’ policies, practices, and procedures violate the constitutional rights of the class members. These common questions of fact and law include, but are not limited to:
a. Whether the conditions of confinement at the Jail since the beginning of the COVID-19 pandemic amount to constitutional violations;
191 Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020), www.prisonpolicy.org/blog/2020/03/06/pandemic/.
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b. What measures Defendants implemented in the Jail in response to the COVID-19 crisis;
c. Whether Defendants’ use of solitary confinement meets the requirements for medical isolation;
d. Whether Defendants’ practices during the COVID-19 pandemic exposed people confined at the Jail to a substantial risk of serious harm; and
e. Whether Defendants knew of and disregarded a substantial risk of serious harm to the safety and health of the class.
143. Named Plaintiffs’ claims are typical of the class members’ claims. The injuries that the Named Plaintiffs have suffered due to Defendants’ unconstitutional course of conduct are typical of the injuries suffered by the class. All class members seek the same declaratory and injunctive relief.
144. The Named Plaintiffs are adequate representatives of the class because their interests in the vindication of the legal claims they raise are entirely aligned with the interests of the other class members, each of whom has the same constitutional claims. There are no known conflicts of interest among members of the proposed class, and the interests of the Named Plaintiffs do not conflict with those of the other class members.
145. Plaintiffs are represented by counsel with experience and success in litigating complex civil rights matters in federal court. The interests of the members of the class will be fairly and adequately protected by the Named Plaintiffs and their attorneys.
146. Because the putative class challenges Defendants’ system as unconstitutional through declaratory and injunctive relief that would apply the same relief to every member of the class, certification under Rule 23(b)(2) is appropriate and necessary.
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147. A class action is the only practicable means by which the Named Plaintiffs and class members can challenge the Defendants’ unconstitutional actions and obtain the necessary immediate declaratory and injunctive relief sought for themselves and all other members of the class.
CLAIMS FOR RELIEF COUNT I: Declaratory and Injunctive Relief for Violation of the
Fourteenth Amendment (42 U.S.C. § 1983) Pretrial Subclass versus All Defendants
148. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
149. Under the Fourteenth Amendment, corrections officials are required to provide for the reasonable health and safety of persons in pretrial custody. Youngberg v. Romeo, 457 U.S. 307, 315-16, 324 (1982) (the state has an “unquestioned duty to provide adequate . . . medical care” for detained persons). Individuals who have not been adjudged guilty of a crime cannot be subject to punishment. Bell v. Wolfish, 441 U.S. 520, 539 (1979). A condition of detention amounts to impermissible punishment when “it is not reasonably related to a legitimate goal,” if it is “excessive” in relation to a legitimate goal,” or if it is otherwise “arbitrary or purposeless.” Wolfish, 441 U.S. at 539. Due process claims brought by pretrial detainees under the Fourteenth Amendment are evaluated under an objective standard,192 and where, as here, Plaintiffs bring a constitutional challenge under a conditions of confinement theory, a person in detention need not demonstrate the defendant’s subjective or malicious intent to punish. Shepherd v. Dallas Cty., 591 F.3d 445, 452 (5th Cir. 2009). Members of the Pretrial Subclass are not required to show that Defendants are subjectively aware of a substantial risk of serious harm due to COVID-19, although
192 Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct. 2466, 2472-73 (2015).
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if such a showing is required that standard is met under the circumstances presented here. Hare v. City of Corinth, Miss., 74 F.3d 633, 644 (1996) (5th Cir. 1996).
150. The Jail has neither the capacity nor the ability to comply with public health guidelines to prevent an outbreak of COVID-19 and cannot provide for the safety of the Jail Class or the Pretrial Subclass. Defendants’ actions and inactions result in the confinement of members of the Jail Class and the Pretrial Subclass in a facility where they do not have the capacity to test for, treat, or prevent COVID-19 outbreaks, which violates Plaintiffs’ rights to treatment and adequate medical care.
151. Defendants violate Plaintiffs’ due process rights by failing to adequately safeguard their health and safety in the midst of a potential outbreak of a contagious, infectious disease. Plaintiffs face a serious risk of intense pain, illness, lasting bodily damage, and ultimately, death in the Jail due to the Defendants’ insufficient measures to prevent the spread of infection. That risk of illness and death renders their conditions excessive in relation to any legitimate government interest.
152. Defendants established de facto policies denying Plaintiffs health care and adequate protections from COVID-19. The policies are not reasonably related to a legitimate governmental objective and are causing the violation of the Jail’s pretrial detainees’ constitutional rights. Accordingly, Defendants, as supervisors, direct participants, and policy makers for the East Baton Rouge Parish Prison, have violated and are violating the rights of the Jail Class and the Pretrial Subclass under the Fourteenth Amendment.
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COUNT II: Declaratory and Injunctive Relief for Violation of the Eighth Amendment (42 U.S.C. § 1983)
Post-Conviction Subclass versus All Defendants 153. Plaintiffs incorporate by reference each allegation contained in the preceding paragraphs as if set forth fully herein. 154. Under the Eighth Amendment, as applicable to States and their political subdivisions through the Fourteenth Amendment, post-convicted persons in carceral custody have a right to be free from cruel and unusual punishment. As part of that right, the government must provide incarcerated persons with reasonable safety and address serious medical needs that arise in jail. See, e.g., Estelle, 429 U.S. at 104; DeShaney, 489 U.S. at 200. 155. As part of this right, the government must provide incarcerated persons with reasonable safety and address serious medical needs that arise in jail. Deliberate indifference to the serious risk COVID-19 poses to members of the Jail Class, and particularly members of the Medically Vulnerable Subclass, violates this right. 156. Plaintiffs, and the class they represent, suffer a substantial risk of serious harm to their health and safety due to the presence of, and spread of, COVID-19. 157. Defendants know of and are failing to abate the serious risks that COVID-19 poses to Plaintiffs, including severe illness, permanent physical damage, and death. These risks are wellestablished and obvious to Defendants. 158. Defendants are subjecting Plaintiffs to conditions of confinement that increase their risk of contracting COVID-19, for which there is no known vaccine, treatment, or cure. Due to the conditions at the jail, Plaintiffs are unable to take steps to protect themselves—such as social distancing, accessing medical attention or testing, or washing their hands regularly—and Defendants have failed to provide adequate protections or mitigation measures. Defendants act
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with deliberate indifference towards Plaintiffs by failing to adequately safeguard their health and safety in the midst of a potential outbreak of a contagious, infectious disease.
159. As a result of Defendants’ unconstitutional actions, Plaintiffs are suffering irreparable injury.
160. Accordingly, Defendants, as supervisors, direct participants, and policy makers for the East Baton Rouge Parish Prison, have violated and are violating the rights of the Jail Class and Post-Conviction Subclass under the Eighth Amendment.
Count III: Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
Medically Vulnerable Subclass versus All Defendants 161. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 162. Because the Medically Vulnerable Plaintiffs and subclass seek release in light of the immediate and urgent risks to their health and lives, there is no other available remedy that could protect their rights. 163. Defendants are holding Plaintiffs in custody in violation of the Fourteenth Amendment (applicable to pretrial detainees) and the Eighth Amendment (applicable to postconviction detainees). Both amendments forbid exposing Plaintiffs to a severe risk of death, pain, or permanent severe injury, and no options available to Defendants at this time will adequately mitigate that risk to the Medically Vulnerable Subclass other than release from custody. 164. Section 2241(c)(3) allows this court to order the release of people like Plaintiffs who are held “in violation of the Constitution.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (“It is clear, not only from the language of §§ 2241(c)(3) and 2254(a), but also from the commonlaw history of the writ, that the essence of habeas corpus is an attack by a person in custody upon
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the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody.”). Habeas confers “broad discretion in conditioning a judgment granting habeas relief . . . ‘as law and justice require.’” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (quoting 28 U.S.C 2243). That authority includes an order of release, Boumediene v. Bush, 553 U.S. 723, 779 (2008), so as “to insure that miscarriages of justice . . . are surfaced and corrected.” Harris v. Nelson, 395 U.S. 286, 291 (1969). Release is appropriate where, as here, there are no set of conditions under which an individual can be constitutionally detained, and the petitioner is thus “challenging the fact, not conditions, of her confinement.”193 COUNT IV: Declaratory and Injunctive Relief for Violation of the Fourteenth Amendment
(42 U.S.C. § 1983) Medically Vulnerable Subclass versus All Defendants 165. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 166. The Medically Vulnerable Plaintiffs and subclass seek release in light of the immediate and urgent risks to their health and lives. There is no other available remedy that could protect their rights. 167. Defendants are holding Plaintiffs in custody in violation of the Due Process Clause of the Fourteenth Amendment (applicable to pretrial detainees) and the Eighth Amendment (applicable to post-conviction detainees) to the Constitution of the United States. Both amendments forbid exposing Plaintiffs to a severe risk of death, pain, or permanent severe injury. At this time, with respect to the Medically Vulnerable Subclass, no options are available to Defendants that will adequately mitigate that risk other than removing the Plaintiffs from custody
193 Malam v. Adducci, No. 20-10829, 2020 WL 1672662, at *3 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020); accord Dada v. Witte, No. 1:20-cv-00458-DDD-JPM (Report and Recommendation) (adopted May 22, 2020); Vazquez Barrera v. Wolf, No. 4:20-CV-1241, 2020 WL 1904497, at *4 (S.D. Tex. Apr. 17, 2020).
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at the Jail. 168. Accordingly, Plaintiffs are entitled to be transferred to a form of custody that does
not expose them to an unconstitutional risk of substantial harm, including a transfer to home confinement.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs and the Putative Class Members respectfully request that the Court: A. Certify the proposed class and subclasses; B. Enter a declaratory judgment that Defendants are violating Named Plaintiffs’ and Class Members’ constitutional rights by failing to adequately safeguard their health and safety in the midst of a potential outbreak of a contagious, infectious disease; C. Enter a temporary restraining order, preliminary injunction, and permanent injunction, and/or writ of habeas corpus requiring Defendants to immediately release all Medically Vulnerable Plaintiffs and Subclass Members or transfer them to home confinement; D. Enter an order requiring, during the COVID-19 pandemic, that Defendants:
1. Effectively communicate to all people incarcerated, including low-literacy and nonEnglish-speaking people, sufficient information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices to reasonably ensure that individuals are able to take precautions to prevent infection;
2. Provide adequate spacing of six feet or more between people incarcerated, so that social distancing can be accomplished;
3. Ensure that each incarcerated person receives, free of charge: (1) an individual supply of liquid hand soap and paper towels sufficient to allow frequent hand
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washing and drying each day, and (2) an adequate supply of disinfectant hand wipes or other products effective against the virus that causes COVID-19 for daily cleanings; 4. Ensure that all incarcerated people have access to hand sanitizer containing at least 60% alcohol; 5. Provide an adequate stock of daily cleaning supplies, such as sponges, brushes, disinfectant hand wipes, and/or disinfectant products effective against the virus that causes COVID-19; 6. Provide sufficient disinfecting supplies, free of charge, so incarcerated people can clean high-touch areas or items (including, but not limited to, telephones, tablets, tables, bathrooms, seating, and door handles) between each use; 7. Provide daily access to clean showers and clean laundry, including clean personal towels and washrags for each shower; 8. Require that all Jail staff wear personal protective equipment, including masks and gloves, when interacting with any person or when touching surfaces in cells or common areas; 9. Require that all Jail staff wash their hands with soap and water or use hand sanitizer containing at least 60% alcohol both before and after touching any person or any surface in cells or common areas; 10. Take each incarcerated person’s temperature daily (with a functioning, properly operated, and sanitized thermometer) to identify potential COVID-19 Infections. 11. Conduct immediate testing for anyone displaying known symptoms of COVID-19 and who has potentially been exposed to infection;
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12. Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 receive adequate medical care and are properly quarantined in a nonpunitive setting, with continued access to showers, recreation, mental health services, reading materials, phone and video calls with loved ones, communications with counsel, and personal property;
13. Respond to all emergency (as defined by the medical community) requests for medical attention within an hour;
14. Waive all medical co-pays for those experiencing COVID-19-related symptoms; and
15. Cease and desist retaliatory disciplinary action in response to (a) incarcerated persons’ requests for medical attention and basic, necessary protections, and/or (b) efforts by incarcerated persons to publicize unsafe and life-threatening conditions inside the Jail.
E. If immediate release is not granted on the basis of this Petition alone, expedite review of the Petition, including oral argument, via telephonic or videoconference if necessary;
F. Enter an order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988;
G. Order such other and further relief as this Court deems just, proper, and equitable.
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Respectfully submitted, this 27th day of May, 2020.

/s/ David J. Utter David J. Utter (LA Bar No. 23236) William R. Claiborne (GA Bar No. 126363)* FAIR FIGHT INITIATIVE 410 East Bay Street Savannah, Georgia 31401 (912) 236-9559 Telephone (912) 236-1884 Facsimile david@fairfightinitative.org will@fairfightinitative.org Attorneys for Plaintiffs
*Pro Hac Vice motion pending

/s/Miriam R. Nemeth______________ Thomas B. Harvey (MBE #61734MO)* Miriam R. Nemeth (DC Bar No. 1028529)** Tiffany Yang (DC Bar No. 230836)* ADVANCEMENT PROJECT NATIONAL OFFICE 1220 L Street NW, Suite 850 Washington, DC 20005 (202) 728-9557 Telephone tharvey@advancementproject.org mnemeth@advancementproject.org tyang@advancementproject.org Attorneys for Plaintiffs

*Pro Hac Vice motions pending ** Lead Attorney for Plaintiffs

/s/ Lillian S. Hardy______________ Lillian S. Hardy (DC Bar No. 991282)* Hogan Lovells US LLP 555 Thirteenth Street NW Washington, DC 20004 (202) 637-5884 Telephone lillian.hardy@hoganlovells.com Attorneys for Plaintiffs
*Pro Hac Vice motion pending
/s/ Baher Azmy Baher Azmy (NY Bar No. 2860740)* Omar Farah (NY Bar No. 4641247)* Brittany Thomas (NY Bar No. 5683834)* CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 11201 (212) 614-6427 Telephone bazmy@ccrjustice.org ofarah@ccrjustice.org bthomas@ccrjustice.org Attorneys for Plaintiffs
*Pro Hac Vice motions forthcoming

/s/ William P. Quigley William P. Quigley (LA Bar No. 00769) Loyola University New Orleans 7214 St. Charles Avenue Campus Box 902 New Orleans, LA 70117 Attorney for Plaintiffs
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CERTIFICATE OF SERVICE I hereby certify that on May 27, 2020 a copy of the foregoing was sent to all parties via electronic mail upon the following:
Michael P. Schillage Assistant Parish Attorney Office of the East Baton Rouge Parish Attorney 222 St. Louis Street, Suite 902 Baton Rouge, LA 70803
MSchillage@brla.gov Catherine St. Pierre Erlingson Banks, PLLC One American Place 301 Main Street Suite 2110 Baton Rouge, LA 70801 cstpierre@erlingsonbanks.com /s/ David J. Utter David J. Utter
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EXHIBIT 1

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EXHIBIT 2

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---------- Forwarded message --------From: Darryl Gissel <DGISSEL@brla.gov> Date: Wed, Apr 1, 2020 at 6:11 PM Subject: FW: Prison Issues To: jenniferharding@vote-nola.org <jenniferharding@vote-nola.org> CC: Sherie Phillips Thomas <info@lahealthcareinstitute.com>
Jennifer, The Mayor held a conference call on March 25th with representatives from the East Baton Rouge Parish Prison Reform Coalition, the Warden's Office, the Sheriff's Office, The Health Director for the Prison, the District Attorney and the Public Defender's Office to review procedures in place to address the COVID-19 Pandemic. Sherie Thomas with the Coalition is going to reach out to you to review her notes from the conference call. The Mayor requested the call be set up so that the advocate groups received knowledge of the health care protocols in addition to efforts to reduce the population. We will work on expanding the communications.
I will do my best to respond based on my notes from the call. I have attached 6 pages of notes from my call file. Feel free to reach out to me with any questions/concerns by phone/text, 225/252-0779 or 225/955-5116 or email . As you will see below the protocols are fluid based on the changes in guideliens and situational issues.
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Case 3:20-cv-00278-BAJ-SDJ Document 4-3 05/27/20 Page 3 of 10 1. The warden, his staff and prison medical are all operating under the guidelines set by DOC, the CDC and LHD. These guidelines are being monitored and update as changes are issued. I have attached my notes from the conference call which outline the procedures that were in place on March 25 and are still in place. Inmates showing symptoms are sent for testing following the community guidelines. It should be noted that testing is only being done throughout Baton Rouge if symptoms indicate the need for testing which include fever of 100.4 or more, shortness of breath / respiratory issue. Correct Health's protocols have been reviewed by an outside party, Dr Godbee, who is the medical director for our Emergency Medical Service (EMS). In addition Dr O'Neal the Chief Medical Officer and Infection Prevention Specialist with OLOL is working with the prison team on mitigation efforts . They are making on going changes to their protocols. …just got notice of some testing changes which include 24 hr turnaround on testing kits.
2. Any tested persons testing positive and sick with severe respiratory problems are being sent to the Lady of Lake Hospital . Any person that test positive but not having respiratory issues are going to Angola for housing and medical treatment in their COVID response unit. (Some persons test positive with little or no issues.)
3. These plans are included in the notes attached. The prison has been on lock down… see timeline attached. We have now have two confirmed cases. Both cases appeared after persons were sent to OLOL for treatment for non COVID -19 related issues. A press release on the first case is attached. This has required sections of the facility be placed on quarantine. Medical checks are being done twice daily including twice daily temperature checks. In addition Medical call is available 24 hrs a day. Contingency plans are in place should a large scale outbreak occur. The individuals who have tested positive are in medical units outside of the prison.
4. We are working with the prison daily to make certain that they have needed PPE for their staff.
5. Due to the prison lockdown individuals are allowed 2 free phone calls per week in addition to their regular calls during this period so they can stay in touch with family. The Public Defender's Hotline does provide information for family members, etc. They are coordinating this to give information including medical. In addition the warden's office does notify family members if their loved ones tests positive and also if they are moved for care. The warden also responds to family inquires. I will be working with Casey Hicks in the Sheriff's Office to have them highlight the Public Defenders hotline on their website.
Darryl Gissel
Chief Administrative Officer
Office of the Mayor-President
222 St. Louis Street, 3rd Floor
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Case 3:20-cv-00278-BAJ-SDJ Document 4-3 05/27/20 Page 4 of 10 Baton Rouge, La 70802 (225) 389-5103 -Sherie Phillips Thomas
President
(225) 400-9449-Office (225) 362-0433-Mobile (844) 442-6346-Toll Free (225) 258-7466-Fax
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EXHIBIT 9

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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

CLIFTON BELTON, JR., JERRY BRADLEY, CEDRIC FRANKLIN, CHRISTOPHER ROGERS, JOSEPH WILLIAMS, WILLIE SHEPHERD, DEVONTE STEWART, CEDRIC SPEARS, DEMOND HARRIS, and FORREST HARDY, individually and on behalf of all others similarly situated,

Plaintiffs,

Case No. 3:20-cv-000278-BAJ-SDJ

v.

SHERIFF SID GAUTREAUX, in his official capacity as Sheriff of East Baton Rouge; LT. COL. DENNIS GRIMES, in his official capacity as Warden of the East Baton Rouge Parish Prison; CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE,

Defendants.

DECLARATION OF DR. FRED ROTTNEK
I. Background and Qualifications
1. My name is Fred Rottnek, MD, MAHCM. I am a Professor of Medicine in the Saint Louis University School of Medicine, Professor in the Physician Assistant Program at the Doisy College of Health Sciences, and Professor in the Center for Health Law Studies in the School of Law. I am the Director of Community Medicine in the Department of Family and Community Medicine and the Program Director of the Addiction Medicine Fellowship. I am board-certified in Family Medicine and Addiction Medicine, and I am a certified Correctional Health Care Physician through the National Commission on Correctional Health Care.
2. I am a board-certified family physician and certified correctional health care physician with over 15 years of experience practicing correctional health care in Saint Louis County, Missouri.

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3. I was the lead physician and medical director of the Saint Louis County (Missouri) Jail for over fifteen years, from June 2001 through September 2016. In this role, contracted through the Saint Louis County Department of Health, I saw patients three days/week, took call on average 16 days/month, and participated in the leadership teams that were responsible for the health and well-being of inmates, correctional medicine staff, correctional staff, and visitors to the jail, which is located in the Buzz Westfall Justice Center as well as Juvenile Detention in the Family Courts of Saint Louis County. In addition to policies regarding patient care and custody of medically-fragile inmates, I participated in the development of policies regarding institutional safety. Examples of the latter include standard operating procedures on complex patients in the medical and psychiatry infirmary, hygiene and cleaning protocols during the initial outbreak of MRSA in the early 2000’s, and safety and emergency protocols related to the institutional lockdown following Michael Brown’s shooting death in Ferguson, MO, in August 2015.
4. At a large urban jail, during my years in this role, I was responsible for directing the medical care and supporting the correctional medicine staff in the care of a daily census of patients that varied from 900 to 1400, as well as annual intake screenings of 30,000 to 34,000 arrestees. The Saint Louis County Jail was (and is) the only jail in the State of Missouri that meets standards for accreditation by the American Correctional Association. Juvenile Detention is accredited by the National Commission on Correctional Health Care.
5. My bio, attached as Exhibit A, includes a brief description of my education and relevant experience.
6. My C.V., attached as Exhibit B, has a full list of my honors, experience, and publications.
7. I am donating my time reviewing materials and preparing this report. Any live testimony I provide will also be provided pro bono.
8. I have testified as an expert at trial or by deposition once in the past 3 years.
9. I have contributed my experience in this field, and emerging science related to COVID-19 in a letter I wrote to the Supreme Court of Missouri, and to declarations that I submitted in Swain v. Junior, No. 2020-cv-21457 (So. Dist. Fla., Apr. 5, 2020) and Feltz v. Regalado, No. 18-cv-00298 (D. Okla. June 6, 2018), stating the threat COVID-19 posed to inmates in prisons and jails, detailing the impossibility of jails and prisons meeting the Center for Disease Control’s guidelines, and supporting the release of medically vulnerable people.
II. Heightened Risk of Epidemics in Jails and Prisons
10. Based on my review of information from the CDC, National Commission on Correctional Health Care (NCCHC), and the National Institute of Corrections (NIC) on COVID-19, my experience working in primary care and public health in both jail and juvenile detention settings, my review of the relevant medical literature, my review of the Plaintiffs’ declarations, and my review of photos of the facility from other pre-COVID-19 jail inspections, it is my professional judgment that the COVID-19 pandemic will have a
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devastating and lethal impact on the lives of both incarcerated individuals and prison personnel in East Baton Rouge Parish, and result in a medical emergency that could overwhelm local medical infrastructure.
11. For a jail or prison located in a community where COVID-19 is spreading, there are no steps that administrators can take to ensure that the disease will not enter and spread through the facility and back out to the community. Ideally, a detention facility should strictly follow CDC guidelines for mitigating the risk to inmate and staff populations and the general public.1 However, these measures are designed to manage and mitigate—not eliminate—the increased risk to jail or prison populations.2 Due to the nature of prison facilities, even if the CDC measures were precisely adhered to, inmates would remain at substantially higher risk than the average person in a community where an outbreak occurs.3 Moreover the presence of a prison in a community would continue to increase the risk to all community members, even if CDC guidelines were strictly followed.
12. The presence of a correctional facility poses a grave threat to the health and safety of Parish residents, as an ongoing outbreak in a jail or prison could limit the ability of health professionals to contain, mitigate, and treat the spread of COVID-19. In my professional opinion, jails and prisons are particularly under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, and the East Baton Rouge Parish Prison is no exception. It is my professional judgment, based on the materials and experience identified above, see supra ¶10, that the Parish Prison is under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, which has already resulted in harm to detained individuals, correctional staff, and potentially the broader community. The reasons for this conclusion are detailed in the following points.
1 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, CDC (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html (hereinafter CDC Interim Guidance). 2 See Matthew J. Akiyma, et al., Flattening the Curve for Incarcerated Population—Covid-19 in Jails and Prisons, The New Engl. J. of Med. (Apr. 2, 2020), https://www.nejm.org/doi/full/10.1056/NEJMp2005687 (“Irrespective of . . . interventions [to limit the number of people entering and leaving jails], infected persons—including staff members—will continue to enter correctional settings . . . . A recent SARS-CoV-2 outbreak among cruise-ship passengers and crew in Yokohama, Japan, provides a warning about what could soon happen in correctional settings.”); CDC Interim Guidance (“The integration of [multiple] components presents unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors. Consistent application of specific preparation, prevention, and management measures can help reduce the risk of transmission and severe disease from COVID-19.”) (emphasis added) 3 Joseph A. Bick, Infection Control in Jails and Prisons, 45 Clinical Infectious Diseases 8, 1047-1055 (Oct. 15, 2007), https://academic.oup.com/cid/article/45/8/1047/344842 (identifying factors that make jails inherently dangerous with respect to infectious disease); Dr. Amanda Klonsky, An Epicenter of the Pandemic Will Be Jails and Prisons, if Inaction Continues, The New York Times (Mar. 16, 2020), https://www.nytimes.com/2020/03/16/opinion/coronavirus-in-jails.html (“It is not a matter of if, but when, this virus breaks out in jails and prisons”).
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III. Jails and Prisons Cannot Implement Adequate Prevention, Containment, and Mitigation Strategies
13. COVID-19 is a highly infectious and easily communicable disease.4 The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing), but survives on inanimate surfaces for up to three days. The latest medical information indicates people are most contagious when they are actively symptomatic, but it is still possible that people can transmit the virus before they start to show symptoms or for weeks after their symptoms resolve. The CDC recommends people maintain a distance of 6 feet between them and anyone else in order to avoid contact with the disease.
14. COVID-19 prevention strategies necessitate both containment and mitigation. In addition to social/physical distancing, containment requires intensive hand washing practices, disinfection, and aggressive cleaning of surfaces, and identifying and isolating people who are ill. Moreover, the use of appropriate personal protective equipment (PPE) is necessary for those tasked with decontaminating surfaces and interacting with potentially infected individuals.5 The CDC recommends mitigation strategies such as social distancing and closing communal spaces (schools, workplaces, etc.) to protect those most vulnerable to the disease.6
15. Jails and prisons are unable to adequately implement containment strategies. During an infectious disease outbreak, most people in the community can protect themselves by washing their hands. Unfortunately, inmates have limited opportunities to maintain optimal hygiene through handwashing and showering as recommended by the CDC. In general, the more restricted the level of housing, the more barriers and inmate has to proper hygiene. Many jails and prisons charge inmates money for hand soap or other personal hygiene products. Most facilities also ban the use of alcohol-based antibacterial hand sanitizer. Further, under CDC guidance, high-touch surfaces (doorknobs, light switches, etc.) should be cleaned and disinfected several times a day with bleach or other approved cleansers, and the cleaner should use disposable gloves to prevent virus spread.7 That said, many jails and prisons place limitations on the amount of cleaning supplies available to inmates and also have insufficient staff available to clean, particularly during a public health pandemic like this. Spaces within jails and prisons are often poorly ventilated and share HVAC systems, which facilitates and accelerates the spread of diseases through aerosolized droplets.
16. Jails and prisons are also unable to practice effective mitigation strategies. Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person-to-person.8 When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are far greater than normal. As
4 Coronavirus (COVID-19), CDC, https://www.cdc.gov/coronavirus/2019-ncov/index.html. 5 Id. 6 Id. 7 Disinfecting Your Facility if Someone is Sick, CDC, https://www.cdc.gov/coronavirus/2019ncov/prepare/disinfecting-building-facility.html 8 Active Case Finding for Communicable Diseases in Prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext
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such, when jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. The CDC suggests that jails and prisons implement social distancing strategies such as staggering meals, moving all bunks six feet apart, and limiting the distance inmates need to be transported to access medical care.9 From my professional experience, these distancing strategies will be difficult if not impossible for most jails and prisons to implement.
17. The latest guidance from the CDC suggests that jails and prisons have a long list of hygiene supplies, cleaning supplies, PPE, and medical supplies on hand and available.10 For example, the CDC recommends facilities provide liquid soap, as harsh bar soap can irritate the skin and reduce handwashing. The CDC also recommends jails and prisons have enough face masks to require every individual displaying COVID-19 symptoms to wear one. In my professional experience, it is unlikely most jails and prisons have or reasonably could obtain the required supplies to comply with this guidance.
IV. Jails and Prisons Cannot Adequately Treat Those Infected
18. To prevent transmission of droplet-borne infectious diseases, people who are infected and symptomatic should be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms and, in my experience, many jails and prisons have none. This makes both containing the illness and caring for those who have become infected much more difficult.
19. In my opinion, administrative or disciplinary segregation, or solitary confinement, of those who may be infected is not an effective disease containment strategy. The detrimental mental health effects of solitary confinement are well-known.11 Studies show the isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death.12 Solitary confinement is also an ineffective way to prevent transmission of the virus to others, because of the aforementioned lack of negative pressure rooms, and because correctional staff will still have to come within close proximity to check on these individuals. Moreover, placing inmates in solitary confinement will place a greater burden on already limited staff and resources. Per NCCHC guidelines, correctional facilities are responsible for meeting the medical and mental health needs of people in solitary or restrictive housing--particularly those with acute medical and mental health needs--which includes regular access to medicine and mental health treatment.13 Put simply, solitary confinement will not solve the problem.
9 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, CDC (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html (hereinafter CDC Interim Guidance). 10 Id. 11 David H. Cloud, et al., Public Health and Solitary Confinement in the United States, 105 Am. J. Pub. Health 18, 18 (2015). 12 Metzner & Fellner, Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics, 38 J. Am. Academy Psychiatry and Law 104–108 (2010). 13 Restrictive Housing in the U.S.: Issues, Challenges, and Future Directions, National Institute of Justice, https://www.ncjrs.gov/pdffiles1/nij/250321.pdf (Nov. 2016).
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20. During an infectious disease outbreak, a containment strategy requires that caregivers for people who are ill must have access to adequate PPE supplies. According to NCCHC guidance, jails and prisons must have adequate PPE, including gloves, masks, and respirators, eye protectors, gowns, uniforms, and shoe covers.14 In my experience, jails and prisons are already under-equipped with medical supplies. A pandemic only exacerbates the shortage. These institutions just simply do not have sufficient PPE for increasing cases of COVID-19 among people who are incarcerated and staff who are required to care for those people, increasing the risk for everyone in the facility of a widespread outbreak.
21. Jails and prisons typically house inmates with chronic conditions, particularly in men, that were not well controlled prior to incarceration. Many of these chronic conditions are contained in the list of diagnoses provided by the CDC that would describe an inmate as being medically vulnerable • Asthma • Chronic kidney disease being treated with dialysis • Chronic lung disease, such as emphysema and COPD • Diabetes • Hemoglobin Disorders, including sickle cell anemia • Immunocompromised persons, including those with HIV/AIDS • Liver disease, including hepatitis • People aged 65 years and older • Serious heart conditions, including past myocardial infarctions, and congestive heart failure • Severe obesity
In my judgment, I would add inmates that have diagnosis that require regular medication administration and lab monitoring, such as inmates with • Neurological conditions, such as epilepsy • Serious mental illness (those that severely impact daily functioning), such as
schizophrenia, bipolar affective disorder, major depression
22. Jails and prisons are often poorly equipped to diagnose infectious disease outbreaks. Most jails and prisons lack urgent or emergent access to testing equipment, laboratories, and ventilators, which means that they will be slow to adequately diagnose and address the outbreak.
23. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. It is unlikely jails or prisons will have adequate staff or PPE to safely transport individuals to these facilities and sit with the individuals while there.
14 Covid-19 Coronavirus: What You Need to Know in Corrections, NCCHC, https://www.ncchc.org/covidresources.
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V. A COVID-19 Outbreak in a Jail or Prison Creates Dangerous Staffing Shortages
24. Absenteeism can pose a substantial safety and security risk. As an outbreak spreads through jails, prisons, and communities, medical personnel, and correctional staff will become sick and stop reporting to work. There is a physical limit to how much overtime other correctional staff can work to make up for lost employees.
25. In my experience, jails and prisons are already dangerously understaffed both in terms of correctional healthcare providers and correctional staff.15 Many jails and prisons do not have 24-hour on-site health professionals. A shortage of doctors or nurses onsite will impact the already limited ability to conduct testing, treat symptoms, and recommend care for sick individuals. Further, as health systems inside facilities are taxed with COVID-19, people with other serious physical or mental health conditions may not be able to receive the medical care they need for these conditions.
26. A staffing shortage for correctional staff will greatly impact the ability of a facility to respond to a COVID-19 outbreak, as guards or supervisors need to facilitate prevention measures, transport inmates to medical, rearrange housing, and conduct many other nonroutine tasks. Moreover, a staffing shortage for correctional staff also creates an unacceptable general risk of danger to inmates and other staff members in a facility.
VI. Contagious Disease Outbreaks in Jails and Prisons is a Public Health Nightmare
27. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more acute than in the community at large. In my experience, past epidemics have taken a greater toll on jails and prisons even when the outbreak is of a disease with available vaccines and medication. For example, during the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases. In 2002, an outbreak of MRSA in a Missouri prison caused significant health problems.16 And currently, jails and prisons across the United States are experiencing COVID-19 outbreaks. In New York, as of May 15, 2020, 362 inmates and 1,300 Department of Corrections workers in Rikers Island have tested positive for COVID-19, and officials report that they expect the numbers to rise. Deaths due to COVID-19 in the Wayne County Jail in Detroit include one of the jail commanders, a deputy in the medical unit, the jail system’s medical director, and another staff physician. And while these numbers are startling, they are almost certainly an underreporting, since jails and prisons have an extraordinarily difficult time finding and purchasing tests. These numbers reinforce the infectivity among correctional workers, medical staff, and vendors who return to their homes and neighborhoods at the end of their shift and may unknowingly spread the virus to others who are medically vulnerable.
15 See, e.g., Kurt Erickson, Parson Calls for More Downsizing in Missouri Prison System, St. Louis Post-Dispatch (Jan. 20, 2020). 16 Tyrabelidze, et al. Personal Hygiene and Methicillin-resistant Staphylococcus aureus Infection, 12 Emerg. Infect. Dis. 422.
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28. To deal with a pandemic, society at large can increase resources and take emergency measures, like adding hundreds of hospital beds in a new facility. Jails and prisons have real and hard limitations of space, staffing, and supplies. It is unlikely most jails or prisons will be able to reasonably put into place sufficient resources to address an outbreak. While Baton Rouge Mid-City hospital recently reopened to accommodate the increase in the number of patients with COVID-19 diagnoses, the addition of patients overflowing from EBRPP will further stress resources and staffing realities.
VII. Risk of COVID-19 in the East Baton Rouge Parish Prison
29. In preparing this report I have reviewed the declarations of the Plaintiffs, Belton, Bradley, Franklin, Rogers, Williams, Shepherd, Stewart, Spears, Harris, and Hardy in this case.
30. Based on my professional experience, my review of the relevant literature, and my review of the Plaintiffs’ declarations, it is my professional judgment that the East Baton Rouge Parish Prison is under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, which would result in severe harm to detained individuals, jail staff, and the broader community. The reasons for this conclusion are detailed as follows.
31. COVID-19 is a highly infectious and easily communicable disease.17 The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but survives on inanimate surfaces for up to three days. The latest medical information indicates people are most contagious when they are actively symptomatic, but now the CDC is recommending people wear masks in public settings because people can transmit the virus days before they start to show symptoms. The CDC recommends people maintain a distance of 6 feet between them and anyone else in order to avoid contact with the disease. If this distance cannot be maintained, CDC recommended people wear masks to provide a barrier from people expelling droplets in breathing, coughing, and conversation.18 Plaintiff Franklin’s declaration details housing practices in several units of the jail, including central booking. In all these settings, social distancing is impossible.
32. Jails and prisons by their nature are unable to adequately implement prevention and containment strategies, and despite local administrators’ planning, the East Baton Rouge Parish Prison is no different. To reduce the risk posed by jails and prison, COVID-19 prevention strategies necessitate both containment and mitigation.
33. Containment requires intensive hand washing practices, decontamination and aggressive, frequently scheduled and as-needed cleaning of surfaces, and identifying and isolating people who are ill. Moreover, the use of appropriate personal protective equipment (PPE) is necessary for those tasked with decontaminating surfaces and interacting with potentially infected individuals.19 The CDC recommends mitigation strategies such as social
17 Coronavirus (COVID-19), CDC, https://www.cdc.gov/coronavirus/2019-ncov/index.html. 18 Coronavirus Disease 2019: Recommendations for Cloth Face Covers, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html. 19 Coronavirus (COVID-19), CDC, https://www.cdc.gov/coronavirus/2019-ncov/index.html.
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distancing and closing communal spaces (schools, workplaces, etc.) to protect those most vulnerable to disease.20
34. As mentioned above, jails and prisons typically house inmates with chronic conditions, particularly in men, that were not well controlled prior to incarceration. CorrectHealth and the East Baton Rouge Sheriff's Office have consistently emphasized the prevalence of preexisting conditions within the incarcerated population that often have gone untreated or even undiagnosed. These CDC-designated conditions are listed above.
Inadequate Testing and Screening
35. Substantial mitigation of the COVID-19 risk would require appropriate screening and available testing for all inmates, staff, and others entering the facility, but thorough testing is not possible given resource constraints, and the screening conducted is not meaningful.
36. Comprehensive testing is a critical component of containing the spread of the virus and to ascertaining the severity of the outbreak.
37. Detainees in the jail have consistently reported an inability to obtain testing even when they show COVID-19 symptoms. For example, Plaintiff Rogers, reports that he remained on a non-COVID-19 unit even though he was symptomatic for days and had reported his symptoms (headaches and body aches) to jail staff. He later tested positive for COVID-19. Rogers Decl. ¶ 8-9. In another example, Plaintiff Spears attests that detainees exhibiting severe symptoms remained in their unit for 10-12 hours before being moved or being tested for COVID-19. Spears Decl. ¶ 27. Plaintiff Williams reports being sent to the COVID-19 isolation unit without having been tested. Williams Decl. ¶ 12. Plaintiff Hardy reports that people with fevers were often left on a regular housing unit until shift change; only then were they transferred to an isolation unit. Hardy Decl. ¶ 12. Stewart, similarly, was symptomatic for weeks, and nurses took no steps to assist him; he later tested positive for COVID-19. Stewart Decl. ¶ 5. Plaintiff Harris reports after a nurse took his temperature, he registered a fever, but then a normal temperature on immediate repeat. Despite this inconsistency, and without a test, he was sent to the COVID-19 housing unit immediately. Harris Decl. ¶6. He wasn’t tested for the virus until about 8 days later. Id. at ¶12. He reports he ended up testing negative. Id. With this set of test results, all the other men on the unit tested positive and were sent to Angola. Id. at ¶13. After about 5 days of being the only person on the unit—with no media—seven new inmates with symptoms of the virus, and who eventually tested positive, were brought to the unit. Id. at ¶¶14-15Plaintiff Harris was not given a mask despite the symptoms and test results of others. Id. at ¶16. His second test, approximately four days after the arrival of this second group, was positive. He ultimately spent 35 days in lockdown. Id. at ¶19. Similarly, plaintiff Franklin reports being placed in a COVID-19 isolation unit the day he was tested for the virus. Franklin Decl.¶ 30.
20 Id.
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38. I see no evidence that jail administrators have performed epidemiological surveillance of staff or inmates, and it appears that only isolated tests have been performed for diagnosing based on symptoms. In an April study of four large prisons (in Arkansas, North Carolina, Ohio, and Virginia), 3,277 inmates out of 4,693 tested for coronavirus (70%) tested positive, and only 4% of these inmates reported symptoms. Since viral shedding (the means by which a person shares the virus) occurs for weeks prior to any symptoms—and more people never show symptoms—administrators need to know the COVID-19 status of the population for housing decisions and other mitigation and staff concerns.
39. One Plaintiff, Hardy, attests that guards have stopped testing people unless they exhibit severe symptoms of COVID-19. Hardy ¶ 11. It is imperative that COVID-19 tests are done to determine active cases of infection through viral testing, e.g., currently limited to PCR (polymerase chain reaction tests) and antigen testing. Antibody tests currently available are less reliable and only indicate if a person developed antibodies after exposure to the virus.
40. Jail staff are doing temperature checks of detainees and in some cases sending detainees to COVID-19 units before even administering a test. Williams Decl. ¶ 6-7. Taking detainees’ temperature and screening for symptoms is ineffective against the spread of COVID-19. Infected people typically show no symptoms for 2-14 days and some never become symptomatic, even though they may be spreading the disease during that time through the methods outlined above. 21
Other Containment Measures
41. Common areas and high-touch surfaces, such as phones and doors, are not cleaned by the jail staff. At most, Plaintiffs attest that guards pour diluted solution on the floors on the facility. For example, Plaintiffs Williams, Bradley, Shepherd, and Stewart report that guards do not clean the phones, door knobs, showers, or toilets, forcing many Plaintiffs to clean those things themselves and to use socks as gloves or as phone coverings. Williams Decl. ¶ 20-25; Bradley Decl. ¶ 14; Shepherd Decl. ¶ 16-18; Stewart Decl. ¶ 20-21. Plaintiff Franklin details substandard living conditions—both structural and custodial—throughout the various housing units he occupied. He also comments on the large rats and unhygienic conditions for which he was irregularly given inadequate cleaning supplies. Franklin Decl. ¶¶ 22, 37. Failure to properly sanitize common areas and high-touch surfaces, such as the phones that detained individuals heavily use, seriously increases the risk of the spread of COVID- 19 and demonstrates the failure to take the most fundamental precautions for preventing the spread of the disease. CDC provides guidance for these processes, which include the following: • Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones). • Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs).
21 See CDC Guidance https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html
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• Use household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19external icon as appropriate for the surface, following label instructions. This may require lifting restrictions on undiluted disinfectants.
• Labels contain instructions for safe and effective use of the cleaning product, including precautions that should be taken when applying the product, such as wearing gloves and making sure there is good ventilation during use
42. Plaintiffs are not given the supplies necessary to clean their own cells or personal spaces, even after testing positive for COVID-19. Williams Decl. ¶ 20; Rogers Decl. ¶ 27; Bradley Decl. ¶ 10. The jail provides only deodorized soap, which is not a disinfectant. Soap is required for personal hygiene and effective, frequent handwashing. But commercial deodorized soap is not a disinfectant and does not kill COVID-19. Plaintiff Harris states he was given no PPE, no cleaning supplies, and he was unable to access supplemental hygiene supplies while on his 35-day COVID-19 lockdown. Harris Decl. ¶¶ 16, 23. The CDC provides a list of agents than can effectively kill COVID-19.
43. Guards and other jail staff do not regularly wear protective gear, as outlined by the CDC. Multiple Plaintiffs, like Williams, Rogers, Hardy, and Shepherd, report seeing guards who were not wearing masks, gloves, or other protective equipment. Williams Decl. ¶ 26; Rogers Decl. ¶ 35; Hardy Decl. ¶ 21; Shepherd Decl. ¶ 22. The jail also failed to give Plaintiffs, even COVID-19-positive Plaintiffs, adequate protective equipment; they are instead given thin bandanas. Rogers Decl. ¶ 36. While bandanas are certainly better than nothing as a barrier, they are considered “homemade masks” by the CDC and are not considered PPE. They should only be used as a crisis capacity strategy.
44. Plaintiffs who test positive for COVID-19 are held in portions of the jail that were previously closed due to their conditions. Williams Decl. ¶ 7. Plaintiffs reported seeing rats and spiders throughout the units. Plaintiff Harris provides clear descriptions of disrepair, dirt, and rust in units C01 (the COVID-19+ containment/lockdown unit) and A1. Harris Decl. ¶¶ 8, 28.
45. Plaintiffs report mold and rust throughout the jail and have seen leeches and roaches coming from the bathroom drains. Spears Decl. ¶ 5-7, 10. And the showers are not cleaned consistently. Rogers reports that the showers were cleaned at the end of each day but not between uses. Rogers Decl. ¶27. Hardy and Shepherd report that guards, in lieu of properly cleaning the showers, pour solution on the ground every two or three weeks. Hardy Decl. ¶18; Shepherd Decl. ¶17. They should be cleaned after each use. No cleaning supplies are provided to inmates for frequent cleaning of showers.
46. Multiple Plaintiffs report being held in open-dormitory-style units, some with upwards of 100 people, and sleep on bunk beds with just a couple feet of distance between them. Williams Decl.¶ 4; Hardy Decl. ¶5-6; Spears Decl. ¶17; Spears Decl. ¶19-20; Bradley Decl. ¶ 4; Shepherd Decl. ¶ 5. Given this layout and crowded environment in which individuals are held, it is impossible to provide an environment where social distancing can take place, depriving individuals of being able to use the most important CDC-recommended measures to protect themselves.
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47. Plaintiffs in COVID-19 units are held either in single person cells or in cells with up to three other people. Shepherd Decl. ¶ 8; Stewart Decl. ¶ 13. Plaintiffs attest that these cells have thin walls on the sides, bars on the front, and are so close to one another that detainees can reach into the cell next to them. This open bar architecture allows aerosolized droplets to suspend in the air and move back and forth among cells. The CDC clearly defines the need for cohorting people based on infection and time of diagnoses. Inmates with confirmed positives should not be housed with people with suspected positives. Inmates who are cohorted should continue to wear masks.
48. Staff and detainees require education about the virus, its spread, and rationale for new behaviors and routines. Detainees testify that they have not been informed of, and are not aware of, the need for disease prevention measures, or the substance of recommended measures. Officers do not provide consistent information to the inmates. Almost all information inmates get is from the television. Rogers Decl. ¶ 33; Hardy Decl. ¶ 23. Plaintiff Spears reports that the officers turn off the television if news about coronavirus or COVID-19 is broadcasted. Spears Decl. ¶ 30. Some cite that an officer will occasionally bring in a newspaper to share. Williams Decl. ¶ 19. One plaintiff noted that he may have seen one sign about COVID-19, but that such signs were not ubiquitous. Spears Decl. ¶ 29.
49. Even before the COVID-19 crisis, the jail staff struggled to provide adequate medical care. Now, with the threat of the virus’s spread through the jail population, it is questionable whether the jail medical unit is equipped to address both underlying chronic conditions of individuals and the outbreak of COVID-19 in the jail. During a pandemic, isolation, quarantine, and cohorting are housing strategies, they are not a substitute for medical care. The declarations of the Plaintiffs do not approximate the guidance provided by the National Commission on Correctional Care—the national accrediting agency of medical services in correctional institutions. EBRPP states that it maintains this accreditation. Plaintiff Franklin details the delay in medication management, including insulin injections, following the COVID-19 outbreak in EBRPP. These delays not only result in erratic blood sugars readings, they could promote potentially lethal hypoglycemic (low blood sugar) or hyperglycemic (high blood sugar) states. Moreover, when housed in Central Booking, Franklin reports he had to remind the nurses of his medication, frequency, and dosing. They apparently didn’t have a medication log. Franklin Decl. ¶¶ 11-12.
50. For individuals in these facilities, the experience of an epidemic and the lack of care while effectively trapped can itself be traumatizing, compounding the trauma of incarceration.
51. The neglect of individuals with acute conditions and serious chronic health conditions under ordinary circumstances is also strongly indicative that the facilities are ill-equipped to identify, monitor, and treat a COVID-19 epidemic. Plaintiffs’ declarations attest to neglect of their medical conditions due to the additional demands on staff as a result of the severity of COVID-19. When the medical unit is strained both due to potential understaffing and/or additional burden from potential COVID-19 patients, it is unlikely that it will be able to provide the care necessary for those with medical needs associated with conditions other than COVID- 19.
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52. The jail is ill-equipped to handle the current COVID-19 outbreak. Plaintiffs’ declarations attest that the infirmary that sick people have to share showers, toilets, sinks, and other common areas. Plaintiffs report inconsistent and inadequate supplies of personal hygiene supplies. Many rely on commissary to bridge the gaps between distribution of soap from the institution.
53. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infectionrelated morbidity and mortality if they do become infected. Plaintiffs and others held in the jail have serious medical vulnerabilities, including diabetes, asthma, COPD, HIV/AIDS, and other chronic respiratory conditions. An outbreak in East Baton Rouge Parish Prison would be disastrous for plaintiffs, correctional officers, medical staff, and members of Baton Rouge Parish. Many of the plaintiffs have chronic health conditions. When the conditions worsen due to lack of routine access to career, e.g., Plaintiff Franklin with insulin-dependent type 2 diabetes, their susceptibility for COVID-19 infection increases. Franklin Decl. ¶¶ 4, 11.
54. The plaintiffs consistently report lack of social distancing—actually the impossibility of social distancing in most housing settings-- lack of hygiene supplies and cleaning supplies, lack of routine scheduled and as-needed cleaning, and inconsistent medical care due to new and increased demands on correctional and medical staff. This combination of condition puts medically vulnerable inmates at an extremely high risk of infection, as well as the potential for permanent lung damage and death. The only way to effectively reduce this risk is the release of medically vulnerable inmates.
55. Proper response to a COVID-19 outbreak in a jail setting necessarily includes identifying all of the people held in the jail’s custody who are medically vulnerable. This task is critical for several reasons, and the daily updating of the list and locations of high-risk patients is critical to basic outbreak management. Creating a real-time list of highrisk patients allows for: • Identification of high-risk patients who are eligible for release from detention • Implementing of active surveillance, special housing arrangements, and other protective measures for high-risk patients who are not ill • Implementing enhanced surveillance and protective measures for highrisk patients who are in a quarantine setting, or who develop symptoms of COVID19 • Development and implementation of re-entry plans of care and support with community partners for high-risk patients.
VIII. Visiting Facility
56. While we are currently experiencing personal health crises and public health emergencies related to COVID-19, experts share the opinion that the pandemic will extend well into 2022. In jails and prisons, this requires a different mindset in housing and processes,
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because, currently, social distancing, the greatest tool in mitigating the spread of coronavirus, is impossible.
57. Since social distancing is impossible at present, the only effective means of reducing risk of infection for medically vulnerable populations is their release from jail or prison. For others who are less susceptible to death from COVID-19, jails and prisons must take measures to decrease the spread of the virus; this is key not only for the health and wellbeing of the inmates, but also for the correctional and medical staff, their families, and their communities.
58. The CDC has very clear guidance for the management of COVID-19 in correctional and detention facilities. The declarations I have reviewed and the photos I have seen of the EBRPP indicate that the jail is not adhering to many of these guidelines. This must change in order to promote the health of all stakeholders in East Baton Rouge Parish—in both the current emergency and in the long-term health of the community. I have had a unique career in homeless healthcare, correctional health care, and addiction medicine. I have experience and maintain interest in respectfully and productively working with the court to develop measures to ensure safety and promote health of stakeholders in correctional facilities. In addition to my experience outlined above, I am currently working with the stakeholders in the City of St. Louis, Missouri, to safely reopen the courts.
59. In order to get a well-informed understanding of how the EBRPP can make long-term measures to decrease risk of harm, I would need to do an inspection of these facilities. I am available to do so in the coming weeks. Areas and items of inspection would include the following: • Places o All buildings o All lobbies, including public and inmate o Intake o Infirmary ▪ Medical ▪ Psychiatric o Medical clinic o Pods/Housing ▪ General population ▪ Housing units of all the plaintiffs ▪ Special COVID-19 Housing ▪ Quarantine units, including J1 ▪ Showers/Toilets ▪ Common areas o Dining areas and kitchen o Laundry facilities o Visitation areas o Conveyance vehicles
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• PPE (and education materials), inventory, availability, education regarding use, and processes o Inmates o Correctional staff o Medical staff o Others (vendors, etc.)
• Cleaning supplies (as well as signage and education materials) o Availability o Supplies o Cleaning schedules
• HVAC o Observation of ventilation in all the areas above o Negative pressure isolation rooms o Movement of air in high traffic areas
• Observation of behaviors (and education materials about signs and symptoms of COVID-19, social distancing, use of PPE, use of cleaning and hygiene supplies, ) o Adequate physical distancing o Use of PPE o Cleaning in high use areas (phones, common areas) o Cleaning in individual cells or bed areas o Processes and compliance for entering and leaving building o Processes and compliance for moving around in building
60. Records that would be useful for me to analyze to move forward include the following items. The records, policies, and registries are maintained in facilities accredited by the NCCHC and should not be burdensome to produce. a. EBRPP Records i. Processes that have been developed to respond to the current COVID-19 pandemic, including 1. Treatment, housing, and management of inmates 2. Housing policies 3. Testing policies of inmates, staff, vendors, and any other people entering EBRPP 4. Social distancing guidance, PPE, cleaning, and hygiene guidance for inmates, staff, vendors, and any other people entering EBRPP 5. Updates in communication with CorrectHealth regarding provision of healthcare, management of sick call, and housing of inmates in quarantine and those who test positive for COVID-19 ii. Signage and education materials that are currently posted in the facility iii. ER runs from 2/1/2020 to 5/26/2020 compared to ER run from 2/1/2019 to May 26, 2019 iv. COVID-19 tests administered 1. To inmates and staff
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2. Broken down by viral vs. antibody tests b. CorrectHealth Records
i. Mortality reviews of inmates who have died since 2/1/2020 ii. Registry of inmates vulnerable for COVID-19 infection
1. Asthma 2. Chronic kidney disease being treated with dialysis 3. Chronic lung disease, such as emphysema and COPD 4. Diabetes 5. Hemoglobin Disorders, including sickle cell anemia 6. Immunocompromised persons, including those with HIV/AIDS 7. Liver disease, including hepatitis 8. People aged 65 years and older 9. Serious heart conditions, including past myocardial infarctions, and
congestive heart failure 10. Severe obesity 11. Neurological conditions, such as epilepsy iii. Serious mental illness (those that severely impact daily functioning), such as schizophrenia, bipolar affective disorder, major depression iv. Registry of inmates enrolled in chronic care clinics (part of NCCHC accreditation) v. Sick call and sick call responses since 2/1/2020 vi. Pharmacy inventory and fill records vii. Daily infirmary census since 2/1/2020 viii. Daily infirmary new admissions since 2/1/2020 ix. Contracts with East Baton Rouge Parish for CorrectHealth’
XI. Conclusions
61. For the reasons above, it is my professional judgment that individuals placed in the East Baton Rouge Parish Prison are at a significantly higher risk of infection with COVID-19 as compared to the population in the community, given the procedural and housing conditions in the facilities, and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis), permanent lung damage, and even death.
62. Reducing the size of the population in jails and prisons is crucially important to reducing the level of risk both for those who are housed and those who work within those facilities. Masks and other facial coverings do not supersede the need for social distancing.
63. From a public health perspective, it is my strong opinion that there is no way short of release to protect the medically vulnerable from grave risk of imminent infection and death. Jails and prisons will remain incubators of coronavirus until there is adequate
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testing, routine testing, and appropriate mitigating strategies—the most important being social distancing—throughout the facility for all stakeholders. If these inmates are released, they have an opportunity to practice social distancing—something they cannot do while incarcerated—and more effectively engage in other behaviors recommended by the CDC. Until these measures are in place, all people entering and exiting the facility become vectors to bring the virus back to their homes, their neighborhoods, and the community at large.
64. Although mitigation and containment strategies are vital, they are merely one piece of the puzzle. The lower the jail or prison population, the more effective these strategies will be. Fewer people in a facility means best practices will be more effective, fewer community resources will be needed, and other inmates and correctional staff will be safer. And the community of Baton Rouge will achieve a safer, swifter recovery and fewer, less severe repeated outbreaks.

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

Dated: May 26, 2020 St. Louis, MO

Fred Rottnek, MD
_____________________________ Fred Rottnek, MD, MAHCM

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EXHIBIT 15

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CHIEF JUSTICE BERNETTE JOSHUA JOHNSON
JUDICIAL ADMINISTRATOR SANDRA A. VUJNOVICH
April 2, 2020

Supreme Court
STATE OF LOUISIANA
400 ROYAL STREET SUITE 1190
New Orleans
70130-8101

TELEPHONE: (504) 310-2550 FAX: (504) 310-2587

To the Louisiana District Judges:
Thank you for all that you are doing during this crisis to mitigate the spread of COVID-19 throughout our state. Experts estimate the rate of spread of COVID-19 in Louisiana will be one of the highest in the nation. The decisions that you make will have a significant impact on our communities and our state and will save lives.
Louisiana has a significantly higher-than-average parish jail population. An outbreak of COVID-19 in our jails would be potentially catastrophic for jail staff, the families of jail staff, and inmates. Therefore at this time, it is important to safely minimize the number of people detained in jails where possible. In order to restrict the potential spread of this contagion through jails, I ask that each judge in her/his criminal division, and in conjunction with prosecutors, public defenders and sheriffs, conduct a comprehensive and heightened risk-based assessment of all detainees (except those who have been convicted of felony offenses and remanded to the Department of Corrections) in accordance with the following guidelines:
1. For those charged with misdemeanor crimes, other than domestic abuse battery, favor a nominal bail amount, or a release on recognizance order – with, of course, a notice to appear on a future date;
2. For those convicted of a misdemeanor crime, consider modification to a release and supervised probation or simply time-served;
3. For those charged with a non-violent offense, consider a reduced bail obligation or a release on recognizance order with, of course, a notice to appear on a future date;
4. For those charged in other criminal matters, re-examine the nature of the offense and criminal history, if any, to determine if any bail revisions are appropriate;

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Page 2 April 2, 2020
5. Where the Department of Probation and Parole requests a revocation of probation and it is within your discretion to revoke, please confer with Probation and Parole to determine whether there is an alternative to detention, especially with technical violations;
6. For those being held due to an outstanding warrant “hold” from another judicial district or jurisdiction, please request prosecutors and a designated sheriff’s deputy promptly communicate with that jurisdiction to determine whether the underlying reason for the hold is sufficiently minor (e.g., a minor traffic offense, failure to pay money obligations, failure to return a rental movie) such that release can be effected or whether the detainee can be immediately transferred;
7. Please suggest to law enforcement that, whenever practicable, they issue summons and citations on misdemeanor crimes and non-violent offenses in lieu of arrest, with a notice to appear on a future date.
During this very challenging time, the health of thousands of people is dependent on you, the District Judges of Louisiana. I commend the way that many of you have already been pursuing ways to minimize outbreaks of COVID-19 in jails. This letter is to provide guidance on further comprehensive, heightened risk-based assessments in this unprecedented and challenging time.
Thank you for your valuable service to your community and our state. Please take good care of yourselves and your families!
Sincerely,
Chief Justice Bernette J. Johnson

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EXHIBIT 16

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John Bel Edwards
GOVERNOR

Stephen R. Russo, JD
INTERIM SECRETARY

State of Louisiana
Louisiana Department of Health
Office of Public Health

TO:

DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS and

OFFICE OF JUVENILE JUSTICE

FROM:
RE: DATE:

LDH OFFICE OF PUBLIC HEALTH
Jimmy Guidry, M.D. Jimmy Guidry, M.D.
State Health Officer
COVID-19; recommendations regarding prisons and juvenile detention centers
April 8, 2020

On January 30, 2020, the International Health Regulations Emergency Committee of the World Health Organization declared the COVID-19 outbreak a “public health emergency of international concern” (PHEIC). On January 31, 2020, Health and Human Services Secretary Alex M. Azar II declared a public health emergency (PHE) for the United States, effective January 27, 2020. Pursuant to the Louisiana Health Emergency Powers Act, R.S. 29:760, et seq., a state of public health emergency resulting from the outbreak of “coronavirus disease 2019” (COVID-19) was declared to exist in the entire State of Louisiana by Proclamation Number 25 JBE 2020.
In the days since the referenced declaration of the state of the public health emergency in the state, the COVID-19 outbreak in Louisiana has expanded significantly. The number of reported cases and deaths is expected to rise significantly in the state in the coming weeks. Additional measures are necessary to protect the health and safety of the public. The measures recommended herein are in line with the best guidance and direction from the U.S. Centers for Disease Control and Prevention, and are necessary because of the ability of the COVID-19 virus to spread via personal interactions and because of physical contamination of property due to its propensity to attach to surfaces for prolonged periods of time.
The Louisiana Department of Health - Office of Public Health (LDH-OPH) expressly finds that the measures recommended herein are necessary to help control and prevent further spread of COVID-19, a communicable, contagious, and infectious disease that represents a serious and imminent threat to the public health. If the following measures
Bienville Building ▪ 628 N. Fourth St. ▪ P.O. Box 4489 ▪ Baton Rouge, Louisiana 70821-4489 Phone: (225) 342-3417 ▪ Fax: (225) 342-7552 ▪ www.dhh.la.gov An Equal Opportunity Employer

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Document 4-17 05/27/20 Page 3 of 4

are not taken, said infectious disease could spread within correctional and detention centers which would overwhelm the state’s medical facilities and which would cause further spread to the citizens of the State of Louisiana.
Pursuant to the powers vested in the State of Louisiana – Office of Public Health by L.R.S. 40:1 et seq., I do hereby make the following recommendations:
Correctional and detention centers should take safe and adequate measures to ensure that the COVID-19 coronavirus disease shall not spread within its facilities. Specifically, correctional and detention centers should:
• Practice proper hand hygiene. Wash hands with soap and water for at least 20 seconds.
• If soap and water are not readily available and illicit drugs are not suspected to be present, use an alcohol-based hand sanitizer with at least 60% alcohol; this protocol applies to all staff, visitors, and inmates.
• Refrain from touching faces with unwashed hands; this protocol applies to all staff, visitors, and inmates.
• Have a trained Emergency Medical Service/Emergency Medical Technician (EMS/EMT) assess and transport anyone you think might have COVID-19 to a healthcare facility.
• Ensure only trained personnel wearing appropriate personal protective equipment (PPE) have contact with individuals who have or may have COVID-19.
• Separate sick individuals from other individuals in the facility, this is known as isolation. Isolate a sick individual in a specific “sick room” if possible, and away from other individuals in the facility. Use a separate bathroom, if available.
• Wear a facemask when around sick individuals at the facility.
• Cover coughs and sneezes. Cover the mouth and nose with a tissue when coughing or sneezing. Throw used tissues in a lined trash can, then immediately wash hands with soap and water for at least 20 seconds.
• Wash hands often with soap and water for at least 20 seconds. This is especially important after blowing nose, coughing, or sneezing; going to the bathroom; and before eating or preparing food.

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• Avoid sharing personal items. Do not share dishes, drinking glasses, cups, eating utensils (after using these items, wash them thoroughly with soap and water or put in the dishwasher), towels, or bedding with other individuals in the facility.
• Clean high-touch surfaces in the isolation area (“sick room” and bathroom) every day while wearing a mask. Clean and disinfect high-touch surfaces in other areas of the facility every day. High-touch surfaces include, remote controls, counters, tabletops, doorknobs, bathroom fixtures, toilets phones, keyboards, and tablets.
• Immediately clean and disinfect areas that may have blood, stool, or body fluids on them with household cleaners and disinfectants: Clean the area or item with soap and water or another detergent if it is dirty. Then, use a household disinfectant. Be sure to follow the instructions on the label to ensure safe and effective use of the product. Many products recommend keeping the surface wet for several minutes to ensure germs are killed. Many also recommend precautions such as wearing gloves and making sure you have good ventilation during use of the product.
• Ensure that all inmates at correctional and detention centers, staff, and visitors maintain a distance of at least 6 feet from each other. If said distance cannot be maintained within the current prison population and if following all of the above referenced protocols does not protect correctional and detention staff, visitors, and inmates, then OPH recommends that correctional and detention centers work with the District Courts, the Public Defender’s Office, and District Attorney’s Office to reduce the size of the jail population of the least non-violent inmates in order to comply with this recommendation.
Thank you for that all that you are doing in this crisis to mitigate the spread of COVID19 throughout the State of Louisiana.
Sources: www.ldh.la.gov; www.cdc.gov

Sincerely,
Jimmy Guidry, M.D.
Jimmy Guidry, MD State Health Officer Louisiana Department of Health

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EXHIBIT 20

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EXHIBIT “L”

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June 8, 2016
Report and Recommendations Clinical Operations at East Baton Rouge Parish Prison
Linda Follenweider, MS, PhDcF, aCnoN-PPla,inJatifcf-k00R04a5b3a, MD & Karen Batia, PhD HMA

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HMA engaged to analyze clinical operations (medical, oral health and behavioral health services) compared
to Louisiana and national corrections standards (ACA and NCCHC)

• Staffing

• Pharmacy

• Medication

• Administration

• Quality improvement and performance

• Records

• Utilization of specialty services

• Treatment of communicable diseases and chronic care

• Suicide prevention

• Mortality reviews

Fano-Plaintiff-000454

HMA 2

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Methodology

• Onsite visit February 23 – 25, 2016

• Interviews with

– William Daniel, Chief Administration Officer, Office of the Mayor-President

– John Price, Assistant Chief Administrative Officer, Office of the MayorPresident

– Chad Guillot, Interim Administrator, Emergency Medical Services

– Dennis Grimes, Warden EBR Parish Prison

– Rintha Simpson, Interim Responsible Health Administrator, Emergency Medical Services

– Dr. Bridges, Medical Director

– Dr. Whitfield, Primary Care Provider

– Dr. Leggio, Dentist

– Dr. Blanche, Psychiatrist

– Kristy Perry, Psych NP

– B. Stine, RN

– Lisa Burns, LCSW

– Capital Area LMSW (Jessica)

– –

Tracy Washington, LPN EBR Parish Prison detainees

(aFpanpo-rPolaxinitmiff-0a0t0e4l5y5

15)

HMA 3

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 6 of 29

Methodology

• Documentation Reviewed

– EMS Prison Medical Overview 2/16

• EBR Parish Prison 2014 actual/2015 budget

• Contracts (medical director, physicians, CAHSD), job descriptions

• EMS protocols content dated 1995 – 2005

– EBR Parish Prison Inmate Rules and Regulations (rev 10/15)

– Disciplinary Procedures (1/16)

– Use of Force (1/16)

– Classification Procedures (1/16)

– Medical Intake and Orientation (7/12)

– Medication expenditure reports 2015 (by patient and facility)

• CorEMR electronic medical records

– Reviewed individual patient records (sample based on patient permission and specific diagnoses)

– Available reports genFeanroa-Pteladintifbf-0y00C45o6 rEMR

HMA 4

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 7 of 29

East Baton Rouge Context

• EBR Parish Prison census has been increasing since 2005

• Daily census consistently is at capacity >1500 with additional detainees housed at other facilities
– Increased numbers of misdemeanants reported
• Migration of people relocating after Hurricane Katrina may have contributed to increased census at EBR Parish Prison

• Consultant engaged to assess legal processes • Previous HMA report proposed set of diversion
programs to help reduce number of people with behavioral health issues enter the EBR Parish Prison

Fano-Plaintiff-000457

HMA 5

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 8 of 29

East Baton Rouge Context

• Earl K Long (public/charity medical center) closed in 2013

– Previously provided majority specialty consultation, emergency department care, diagnostic testing, and inpatient care prior to closure

– As a result increased volume of referrals and procedures are made to Charity Hospital in New Orleans

• Significant amount of Correctional Officer time for transportation required

• Financial impact

• Difficult to access specialty services, non-emergency inpatient care, and diagnostic testing

• Our Lady of the Lake (OLOL), now the main referral site for emergency inpatient services and emergency department visits

Fano-Plaintiff-000458

HMA 6

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 9 of 29

National Standards Focus

• Access to Care
– Screening and Assessment
• Quality of Care • Clinical Care
– Disease Management – Chronic Care Management – Comprehensive and Continuity of Care
• Medical and Administrative Leadership

Fano-Plaintiff-000459

HMA 7

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 10 of 29

Strengths of Current Health Care System at EBR Parish Prison
• Adoption of CorEMR
– Powerful tool with significant health management and data capabilities
• Pharmacy management
• LCSW screens and triages requests for psychiatric provider assessment and medication management
– Helps identify priority detainees for follow-up – Documentation details needs and plan

Fano-Plaintiff-000460

HMA 8

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 11 of 29
EBR Parish Prison Patient Vignette

Fano-Plaintiff-000461

HMA 9

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 12 of 29

EBR Parish Prison Health Services Work Flow

Central Booking Health Screen (Corrections Officer)
• Are you taking prescribed medication?
• Are you under the care of a doctor?
• Do you need to see a doctor?
• Officer may request LPN assessment
• People with obvious medical needs are transported out for medical clearance

Initial Health Screening (LPN)

Medical and Mental Health Assessment

• Structured

(If Health Screen

screening tool

identifies need)

based on detainee response and LPN observation
• Includes Brief Jail Mental Health Screen
• Routine medical screen for chronic health issues and current medications
• TB test placed

• Medical assessments completed by physicians
• Mental health assessment completed by EMS LCSW and referred to psychiatric provider if needed
• Dental services requested if required
• Follow-up appointments

based on identified Fano-Plaintiff-0n0e04e6d2

Medication Passed and Health Service Request Review (LPN)
• LPNs pass medications 3 times a day
• During medication pass LPNs may identify need for medical or MH follow-up and request via CorEMR
• Detainees request sick slips which are reviewed and triaged nightly by LPN if follow-up needed scheduled in CorEMHMR A 10

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 13 of 29

EBR Parish Prison Health Services Overview
• Annual budget $5M • Administrative medical authority and health staff
provided by Emergency Medical Services (EMS)
– Responsible administrative leader – Nursing
• 1.0 FTE RN • 2.0 FTE Director of Nursing (vacant) • 5.0 FTE LPN Supervisors • 20.0 FTE LPN (6 vacant) – Mental Health • 1.0 FTE LCSW

Fano-Plaintiff-000463

HMA 11

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 14 of 29

EBR Parish Prison Health Services Overview

Professional Services Contracts with the City-Parish

• Total 0.7 FTE medical providers

– 0.3 FTE Medical Director

– 0.3 FTE Primary Care Physician

– 0.1 FTE HIV Physician

• Total 0.50 psychiatric providers

– 0.3 FTE Psychiatrist

– 0.2 FTE Psychiatric Nurse Practitioner

• 0.20 FTE Dentist

• 2.20 Capital Area mental health staff (1.8 Social Worker and 0.40 Peer Specialist)

• 0.10 X-Ray technician

• Contract Pharmacy Services (CPS) provides medications

• Complex extractions, basic eye exams and ultrasound

services as needed Fano-Plaintiff-000464

HMA 12

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 15 of 29

Access to Care

EBR Parish Prison

Standard of Care

• Approximately 88% of

• All detainees receive a health screen or assessment within 4-6

detainees receive Initial Health Screen

hours
• Conduct health screens within Central Booking area

• Validated substance withdrawal screen not included
• Data collected regarding who has not been screened is not considered reliable

• Consider switching to Correctional Mental Health Screen (validated tool for both men and women, differentiates urgent and routine follow-up indicated, and for use by Corrections Officers and health staff)

• Screens may not be completed until 24 – 36+ hours after entering the facility resulting in potential to miss prescribed medications

• Consider including the Clinical Institute Withdrawal Assessment of Alcohol and Opiate Withdrawal Scale(s) (CIWA-Ar and COWS)
• Assure standard screening process and review consistent use of tool

•

Inconsistent by LPNs

screening

practices

•

Fano-Plaintiff-000465

Improve tracking for completion of

process screens

and data
HMA 13

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 16 of 29

Access to Care

EBR Parish Prison

Standard of Care

• Health service requests (sick call slips) must be

• Place sick call slips in common areas easily

requested from Corrections

accessible to detainees

Officer

• Data should be gathered to

• Requests are between 16% and

collect number of health

33% of national rates based on number of detainees
• Majority of detainees are not offered follow-up medical visits based on health service request
• In January 2016 approximately 17 nurse sick call visits were

service requests received daily, number triaged within 24 hours, number prioritized, documented, numbers sorted to nurse or provider visits, and

performed (1.1% of daily census)

number of follow-up visits

significantly utilization

below

expectedFano-Plaintiff-0004c6o6 mpleted

HMA 14

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 17 of 29

Access to Care

EBR Parish Prison

Standard of Care

• Wait times for health care follow-up varies
• Inadequate staffing based on detainee volume and expected service demand
• 30% nurse vacancies • 0.70 FTE medical providers • 0.50 FTE psychiatric providers • 2.20 FTE mental health staff
providing community referrals and limited counseling and therapeutic support • 1.0 FTE LCSW dedicated to therapeutic interventions

• Triage access to health professionals based on health acuity and schedule providers to ensure daily coverage
• Staffing best practices
• Market rate salaries • Increase RN FTE • 2.0 FTE medical providers
required based on volume • 1.2 FTE psychiatric providers
required based on volume • Realign mental health staff
resources to provide services onsite that includes discharge planning

Fano-Plaintiff-000467

HMA

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 18 of 29

Access to Care

EBR Parish Prison

Standard of Care

• Inadequate staffing based on detainee volume and expected service demand

• Ensure staff work at the top of their license
• Nurse Practitioners complete medical assessments

(continued)
• Physicians completing routine assessments
• LPNs completing clerical tasks

• Physicians see medically complex patients and provide chronic care services
• Clerical duties performed by administrative staff
• Increase Dentist FTE
– Consider hiring dental assistant or hygenist

• Long waits for specialty

• Contract with specialty

care

providers, partner with medical residency and local hospitals

Fano-Plaintiff-000468

HMA 16

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 19 of 29

Quality of Care

EBR Parish Prison
• Routine staffing is held to review mental health cases once per month attended by the Warden, social workers and administrative staff

Standard of Care
• Clinical health staff meetings held once per month, complex medical and behavioral health cases reviewed, quality metrics reviewed and improvements needed identified
– Document meetings and distribute minutes to health care staff
– Utilize trend data and quality performance reports to benchmark plan of corrections

• CorEMR data fields and • Populate CorEMR data fields

reports not populated or

and distribute pertinent reports monthly to health care staff

routinely reviewed Fano-Plaintiff-000469

HMA 17

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Quality of Care

EBR Parish Prison
• Utilization and outcome data is not collected, distributed or used to identify potential quality improvements

Standard of Care
• Implement a quality dashboard
– Collect utilization and outcome metrics on a regular basis
– Review results in health staff meetings
– Develop Plan, Do, Study Act (PDSAs) to implement and test improvements

• Formal critical incident and death reviews are not conducted

• Institute formal critical incident and death reviews within 30 days of incident
– Implement any indicated practice or policy changes based on review
– Debrief lessons learned with providers and staff
– Document review

Fano-Plaintiff-000470

HMA 18

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 21 of 29

Quality of Care

EBR Parish Prison • Peer review of health care
providers are not conducted
• Training on health care issues is provided on an inconsistent basis to health staff and corrections officers

Standard of Care
• Annual peer review of health care providers is conducted
– Clinical care reviewed – Observations and any
recommendations are documented and shared with the provider
• Conduct consistent training and determine standard curriculum
– Health care staff annual training to include CPR, suicide assessment, response to sexual abuse
– Corrections Officers training at minimum every two years to include signs and symptoms of mental health issues and withdrawal from substances, suicide prevention

Fano-Plaintiff-000471

HMA 19

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Clinical Care

EBR Parish Prison
• Health care provided is episodic and inconsistent
– Reliant on having received an initial screen rather than consistent and comprehensive processes in place
• Limited routine health care and access to medical staff is resulting in avoidable emergency transfer to external health services
– 43 detainees sent to OLOL January 2016 (costs TBD)
• Chronic care program not in place based on chart review

Standard of Care
• Standardize routine and comprehensive assessment, initiate disease management and chronic care treatment
• Institute chronic care program that follows national clinical guidelines

Fano-Plaintiff-000472

HMA 20

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Clinical Care

EBR Parish Prison

Standard of Care

• Mental health and

• Within current facility mental health patients should be placed

substance abuse services and interventions are limited due to facility lay

in cohorted housing units that would enhance the ability of the limited MH staff to monitor, visit, counsel and provide group

out and staff resources

programing to this high risk population and allow security to

assign correctional officers with

additional training in the

management of the mentally ill

to these units

– Realign how CAHSD staff are being utilized

– Consider implementation of Screening Brief Intervention and
Fano-Plaintiff-00047R3 eferral to Treatment (SBIRT)HMA 21

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 24 of 29

Clinical Care

EBR Parish Prison

Standard of Care

• Documentation and

• Require all health care staff and providers to document in the

utilization of CorEMR is

electronic health record

inconsistent and not all providers enter notes into the electronic health record
– Documentation primarily notes medications prescribed with few exceptions outside

• Develop standard documentation expectations that include diagnoses, treatment plan, and communications needed to be relayed to Corrections Officers to promote health and safety of patients

of LCSW documentation

• Link LabCorp results directly

• Lab results are scanned into the record and often not available when the patient is

into CorEMR so get automatically uploaded into the health record and results are available at time patient is seen

seen by the provider

Fano-Plaintiff-000474

HMA 22

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 25 of 29

Clinical Care

EBR Parish Prison

Standard of Care

• Inconsistent administration of prescribed medications
– 22% missed medications (based on CorEMR documentation)
• Excessive use of Seroquel for treatment of insomnia
– Second most prescribed medication (293 unique prescriptions) second only to Ibuprofen

• Medication missed documentation should clarify reasons for “not present” and be tracked
– Critical medications missed should be administered at subsequent pass
• Most medications prescribed twice daily, consider reducing medication passage to twice a day and minimize TID medications
• Literature questions “safety and efficacy” of use of Seroquel for insomnia treatment (Park, 2013)
– Seroquel has been removed from corrections medication formularies due to risk of abuse and expense with minimal clinical disruption noted (Tamburello et al, 2012)

Fano-Plaintiff-000475

HMA 23

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 26 of 29

Medical and Administrative Leadership

EBR Parish Prison

Standard of Care

• Interim administrative leader in place dividing time with other duties

• Hire dedicated, full-time Responsible Health Authority (RHA) with experience managing large medical practice or correctional health care facility

• Medical Director serves as a spokesperson and is not

– RHA needs to have the authority to manage day to day operations and work with medical director to ensure clinical standard of care

involved in operational, supervisory, monitoring, or quality improvement

• Medical Director or responsible physician provides medical and clinical leadership, interface with operations and RHA

activities

– Actively manage standard of

clinical care, quality improvement

activities, and critical incident and

Fano-Plaintiff-000476 death reviews

HMA 24

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 27 of 29

Medical and Administrative Leadership

EBR Parish Prison

Standard of Care

• Policies, protocols and standards of care are not
– Accessible to staff or

• Update and draft critical policies, protocols and procedures at minimum once per year

distributed
– Updated or kept current – Tailored to the EBR Parish
Prison facility

– Add clinical guidelines to assess alcohol and other drug use and withdrawal standards of care
– Add quality plan
• Reinstitute regular administrative and clinical staff meetings

– Review standards of care,

policies, protocols and

procedures and distribute

Fano-Plaintiff-000477 meeting minutes

HMA 25

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 28 of 29

Immediate Priority Recommendations

1) Hire a full-time administrative leader (RHA)

a. Consider engaging an interim leader who has external perspective and can view the current health care delivery and systems without historical bias or perspective

2) Dedicated staff person focused on instituting a quality program

a. Develop Quality Plan

b. Implement Quality Dashboard, collection of data and provide reports to providers

c. Implement Plan, Do, Study, Act (PDSA) cycles to

promote delivery improvement and create a

“culture of quality”Fano-Plaintiff-000478

HMA 26

Case 3:20-cv-00278-BAJ-SDJ Document 4-21 05/27/20 Page 29 of 29

Overall Recommendations

Determine who and how health care services will be provided at EBR Parish Prison given current volume at the facility budget to provide comparable corrections health care services needs to double from $5M to $10M annually

• In-house management will require interim leadership with assertive plan to overhaul the current services

• Explore contracting with local hospital, health care delivery system or academic medical center

• Explore possible contracted vendor

• Any of these options will require

– Clarity on expected standards of care to be in place

– Proposed budget and allocation of resources

– Detailed staffing plan, job descriptions and productivity expectations

– Quality and outcome metrics expected and results to be achieved

Fano-Plaintiff-000479

HMA 27

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EXHIBIT 23

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You Can't Manage Health Care from a Jail
A Community-Driven Public Health Approach to COVID-19 at the East Baton Rouge Parish Prison

Case 3:20-cv-00278-BAJ-SDJ Document 4-24 05/27/20 Page 3 of 9
Executive Summary
To the Mayor-President and the Metropolitan Council of East Baton Rouge Parish:
The East Baton Rouge Parish Prison Reform Coalition (EBRPPRC) respectfully presents this report on the life-threatening challenges in medical care at the East Baton Rouge Parish Prison; challenges that have been greatly enhanced by the COVID-19 crisis. We are grateful for all the work being done by the East Baton Rouge Office of the Public Defender, the District Attorney's Office, the assorted law enforcement agencies, and the courts of East Baton Rouge Parish in their collective efforts to decarcerate as many citizens as possible during this pandemic. But even with these efforts - which have resulted in increased summons over arrest and the release of more than 700 incarcerated people, removing them from harm's way - there are still over 1300 individuals housed at the jail and hundreds still working in the facility as employees and vendors. Failure to continue efforts to decarcerate will result in unnecessary risk to the community as a whole. This is a public health crisis.
Prior to the current crisis, the EBRPPRC called attention to the substantial health care issues that exist in the jail. Those challenges have not been resolved and it is imperative for the Parish to take the lead in managing them directly as well as the added crisis of COVID-19. A widespread outbreak in the jail would be a public health crisis that could overwhelm the Parish’s health care capacity. In the past, the East Baton Rouge Parish Sheriff’s Office (EBRSO) has been quick to point out (correctly) that the responsibility for the medical care of those incarcerated at the Parish Prison lies with City-Parish, not the EBRSO. In a statement made to the Metropolitan Council on 1/14/15, EBR Sheriff Sid Gautreaux stated “it’s up to City-Parish to provide [for] the medical needs of these individuals”. That was true then and has an added importance now that we are in the midst of a public health crisis that requires a coordinated response.
The EBRPPRC recognizes that the Parish’s current health services agreement with CorrectHealth LCC cannot adequately address this pandemic and certainly does not provide the resources or expertise to manage the increasing number of COVID patients at the jail. Since responsibility for health care resides with the Parish, this report is intended to propose steps the Parish can take to meet an unprecedented storm impacting thousands of East Baton Rouge families. Suggestions are collected from a variety of sources: criminal justice advocates, public health experts, governmental guidance, and the experiences of currently and formerly incarcerated people and their families.
In past discussions with both Parish and prison personnel, the EBRPPRC expressed concern over the weakness of the facilities infectious disease protocol and the current plan to address the pandemic. The following areas need to be specifically addressed:
1. Baseline COVID-19 testing of all those housed at the jail as well as staff

Case 3:20-cv-00278-BAJ-SDJ Document 4-24 05/27/20 Page 4 of 9
As of April 20th, 2020, there have only been 91 tests administered at the East Baton Rouge Parish Prison. Of those 91 tests, 62 have been positive - over ⅔ of all tests are positive. With over 1,300 individuals at the jail, and a limited number of beds/oxygen/ventilators available, it is critical to understand the current status of those housed and working in the facility. People at the prison obviously have limited ability to self-isolate, making the risk of widespread infection even greater. A recently leaked video shows an EBRSO deputy choking a man from a state work release program - which is in a separate building than the main prison, administered by EBRSO. Leaving aside the ensuing controversy around the deputy’s treatment of that man, the video clearly shows that there is movement of correctional staff between all areas of the facility, at least in some circumstances. It is well-known that asymptomatic individuals can still transmit the virus. Baseline testing of all people at EBRPP, whether they are pretrial, serving a State sentence, or are staff is needed to ensure that proper precautions are taken.
2. Following the CDC and LDH protocols for medical isolation
East Baton Rouge Parish Prison has a long and deadly history with lockdown/solitary confinement. Currently, lockdown solitary confinement is the protocol being utilized instead of medical isolation. The recent deaths of Jonathan Fano and Shaheed Claiborne while in solitary confinement are still unresolved, and the Coalition believes it is crucial that there is an appropriate location for medical isolation staffed by those who have experience in managing such a facility. The United States military has offered trained personnel to staff such sites around the country. There are a number of facilities that might be an adequate place to medically isolate people currently at the parish prison: the parish-owned, and currently unoccupied, 300-bed portion of the former Woman's Hospital; Celtic Studios; as well as available hotel and motel space should all be considered. Failure to remove COVID positive individuals from the jail can result in raised tensions leading to attacks by staff or other incarcerated people. It puts at risk of transmission all those who are in contact with staff and vendors. This is a public health crisis. Prisons are not facilities designed to mitigate or accommodate such a crisis. Staffing needs and emergency situations require movement of people through different areas of the facility.
3. Create a viable “step down” program in accordance with CDC and LDH protocols
After receiving care and recovering from the most serious symptoms of the virus people will still need medical supervision and a clean, isolated, location when released from the hospital. The East Baton Rouge Parish Prison is not the place to provide this step down care. Current CorrectHealth staffing levels are not intended to provide ongoing care to what could be hundreds of individuals who, although they no longer need hospitalization, are still medically fragile or still able to transmit the disease. The level of supervision to ensure a full recovery is more appropriately provided in medical monitoring stations of the kind currently being operated in New Orleans and Baton

Case 3:20-cv-00278-BAJ-SDJ Document 4-24 05/27/20 Page 5 of 9
Rouge. This is a public health crisis - plans to provide security and monitoring have to accommodate health care needs, not vice versa.
4. Independent monitoring
Even before the pandemic, the EBRPPRC has frequently asked the Parish to comprehensively and independently monitor the health care provided at the Parish Prison and to publicly report the results of that monitoring. The critical issues with routine health care services that already existed at the jail will continue, and likely worsen, during this crisis. To ensure the preparedness of our local healthcare providers, to alleviate the anxiety of the community whose loved ones are incarcerated, and to maintain transparency and accountability there should be daily reporting and analysis of the overall health care situation at the jail. While such reporting might be constrained by confidentiality and logistic limitations, the Parish must make some effort to make the public aware of what is happening in the jail. There is an undeniable public interest in this information and the EBRPPRC encourages the Parish to find ways to make it available in a timely manner. Rampant spread among those at the Parish Prison (who are limited in their ability to self-isolate and many of whom have underlying health issues) could be enough to test the capacity of our local hospitals. If the Department of Corrections continues to bring COVID-positive people to Angola (and then to a Baton Rouge hospital if they require serious care) this will put further strain on our local capacity. This impacts every single member of the community.
Conclusion
The EBRPPRC has assembled recommendations made in various letters, guidance, reports, etc. that pertain to COVID in prisons and jails. The original documents are cited and linked to where possible. This list is by no means exhaustive, but we encourage the Parish to fully embrace its responsibility to provide health care to those in the jail and to the extent possible mitigate the spread of COVID among those who are incarcerated. The decisions made must be motivated first by an interest in the health, safety, rights, and dignity of our incarcerated community members. That is the Parish’s responsibility. The EBRSO’s plans for security and supervision must conform to Parish’s public health needs and must demonstrate the same flexibility and willingness to adapt that is being asked of all of us in this unprecedented time.
Included in this report are links to federal financial resources that might be able to fund some if not all of the costs associated with a plan that ensures the best health outcomes possible for every member of our community. The EBRPPRC is thankful for the opportunity to be part of the solution and we urge the Parish to move forward with a comprehensive plan that promotes recovery in the most medically appropriate manner.

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Recommendations
Relevant Recommendations from RE: Temporary Release/Furlough, Federal Funding, and Technical Assistance
for Jails April 11th, 2020:
1. “We request that you refrain from the use of lockdown or solitary confinement as methods to achieve medical isolation because, as noted by doctors and health officials, these methods may exacerbate the spread.3 Detainees may be dissuaded from reporting symptoms of the virus if they believe the response will be punitive; this may also be the case when they know they could potentially be sent to Camp J at Angola if they admit they are feeling ill”.4
2. “There is still an opportunity to slow the spread of the virus, “flatten the curve,” and prevent unnecessary deaths. The quickest and least expensive way our state can avoid a catastrophe is for each parish jail to access immediately available federal funding to facilitate the individual assessment, release, supervision, electronic monitoring, and/or home confinement options for detainees in your care. Last week, the Bureau of Justice Assistance announced formula grants15 that can be drawn down during this emergency to support a broad array of justice system responses to COVID-19. While the State is allocated $9.7 million for this purpose, cities, townships, and parishes can apply for an additional $5 million in funding (allocations ranging in size from $33,000 to $1 million depending on population). Applications are due by May 29th. Due to Louisiana’s partnership with The Pew Charitable Trusts on justice reinvestment, staff from that organization are available to assist local law enforcement in applying for the funds.”16
3. “In the event that a given jail cannot meet CDC guidelines without the use of solitary or lockdown, is unable to supervise detainees at home through local federal funding opportunities, and cannot utilize temporary release or furlough, we ask that you relocate detainees to a building where social distancing and compliance with public health guidelines is possible. Under a state of emergency, the Governor can transition the management of local state-owned facilities to the temporary authority of the state, engage the Louisiana National Guard to maintain site control and provide medical services, and utilize the state-based federal funding to employ medical professionals to care for individuals with COVID.”18
Relevant Recommendations from Civil Rights Groups Call on Southern Authorities to Address COVID-19 Crisis in State

Case 3:20-cv-00278-BAJ-SDJ Document 4-24 05/27/20 Page 7 of 9
and Local Jails, Prisons and Juvenile Facilities April 9th, 2020
1. Take Precautionary Measures to Protect the Health of Incarcerated People. All correctional and detention facilities should fully adhere to the CDC Guidelines, which include guidance for operational preparedness for possible COVID-19 transmission within the facility, prevention of the spread of COVID-19 and management of confirmed and suspected cases of COVID-19 infection. These guidelines include, without limitation, social distancing, intensified cleaning and disinfection and screening of intake, visitors and staff. As part of these guidelines, incarcerated people should be provided with ready access to soap, clean water, tissues and cleaning supplies, as well as personal protective equipment as necessary. Incarcerated people and correctional staff in these facilities should also be educated about the virus, its symptoms and measures they can take to minimize their risk of contracting or spreading the virus. Plans should be in place to ensure adequate staffing levels in the event of an outbreak. Importantly, widespread testing of incarcerated people and staff for COVID-19 should be implemented immediately.
2. Provide Access to Appropriate Medical Care in Medically Appropriate Settings. Incarcerated people who test positive for COVID-19 should be released to an external healthcare facility where they can receive the potentially lifesaving care they deserve. Moreover, people exposed to COVID-19 should be moved to a medically appropriate setting outside of the often unsanitary and unsafe conditions of many Southern jails, prisons and detention centers. All of these facilities should have a plan in place to humanely separate symptomatic patients from the general population, implementing a non-punitive medical quarantine where appropriate.
3. Make Transparent, Public Disclosures About the Covid-19 Pandemic in All Correctional Facilities, Including Any Racial Disparities. Incarcerated people have loved ones in communities to which most of them will one day return. Likewise, corrections staff are part of larger communities that are directly impacted by any COVID19 infection in the facilities where they work. Accordingly, any COVID-19 related policies affecting incarcerated populations and corrections staff should be clearly and readily communicated to the public, as well as the incarcerated people themselves. Moreover, state and local governments should collect and make public data regarding the morbidity and mortality of the virus in incarcerated populations, including racial demographics. These policies and data should be disseminated via a public website with daily updates and disclosures to local, state and federal health authorities.

Case 3:20-cv-00278-BAJ-SDJ Document 4-24 05/27/20 Page 8 of 9
Relevant Recommendations from Louisiana Department of Health Memo COVID-19; recommendations regarding prisons and juvenile detention centers April 8th, 2020
1. “Have a trained Emergency Medical Service/Emergency Medical Technician (EMS/EMT) assess and transport anyone you think might have COVID-19 to a healthcare facility.”
Relevant Recommendations from Re: COVID 19 Prevention and Protection in East Baton Rouge Parish Prison March
19th, 2020
1. “Screening and Testing of the People in Your Custody. The plan must include guidance, based on the best science available, on how and when to screen and test people in your facilities for the virus.”
2. “Housing and Treatment of Persons Exposed to or Ill With COVID-19. The plan must describe how and where people in the detention system will be housed if they are exposed to the virus, become sick with it, or are at high risk if exposed to it. Healthcare providers should consult with local or state health departments to determine whether patients meet criteria for a Persons Under Investigation (PUI) status. Providers should immediately notify infection control personnel at their facility and the nearest hospital if they suspect COVID-19 in a patient. Courses of treatment for anyone exposed to or ill with COVID-19 must be evidence-based, available immediately, and in compliance with scientifically- based public health protocols.”
3. “Data Collection: The collection of data regarding COVID-19 will be part of the public health response. As with any contagious disease, data collection is critical to understanding and fighting the virus. The correctional system must be part of this process. The same information that is tracked in the community must be tracked in facilities. The plan should include mechanisms for providing timely data to state, local, and federal health authorities.”
Relevant recommendations from Re: COVID 19 Prevention and Protection in Louisiana Facilities March 16th, 2020
1. Avoid Lockdowns. Although corrections staff may be tempted to reflexively cut off visitation and increase the use of solitary confinement to control the spread of COVID19, any system or facility-wide lock-down or interruptions in regular activities, such as exercise or visits and phone calls with families or attorneys, should be based solely on the

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best science available and should be as limited as possible in scope and duration to ensure the health and safety of individuals in custody. Prolonged lockdowns can inflict substantial, serious mental harm on incarcerated populations, exacerbating feelings of stress and anxiety amongst those in custody who are deprived of regular contact with their friends and family. International experts consider prolonged solitary confinement to be torture; it can cause serious, persistent, sometimes permanent damage to mental health. Moreover, unnecessary lockdowns and solitary confinement do nothing to mitigate the risk of COVID-19 exposure from the daily influx of facility staff, vendors, medical professionals, and others. Finally, when locked down or held in solitary confinement, people may not be able to alert staff promptly if they experience symptoms of COVID-19, increasing the risk of contagion.
Full Document: The Ethical Use of Medical Isolation – Not Solitary Confinement – to Reduce COVID-19 Transmission in Correctional Settings
Full Document: Louisiana must overhaul its justice system practices to respond to COVID-19

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EXHIBIT 24

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VIA ELECTRONIC MAIL
May 18, 2020
Shelina Davis, MPH, MSW – CEO LPHI, Chair sdavis@lphi.org
Michael McClanahan – State President NAACP mwmcclanahan@yahoo.com
Erica Rogers, RN New Orleans info@mybraveheart.org
Frederick L. Thomas – Commander/Captain at East Baton Rouge Sheriff’s Office web_burbank@ebrso.org
Connie Arnold, MD Shreveport carnol@lsuhsc.edu
L. Faye Grimsley, PhD, CIH, MSPH fgrimsle@xula.edu
RE: Alternatives to Solitary and Camp J During COVID-19.
Dear Members of the Prison Subcommittee of the Governor’s Healthcare Equity Task Force:
Thank you for agreeing to serve on the Prison Subcommittee of the Governor’s Healthcare Equity Task Force, and for all you are doing to slow the spread of COVID-19 in our communities. The decisions you make and the policies you recommend will impact the lives of tens of thousands of Louisianans who are among the most vulnerable to contracting and dying from COVID-19. We, the Louisiana Stop Solitary Coalition, would like to take this opportunity to weigh in on critical health policy issues impacting incarcerated adults and children in Louisiana, particularly as it relates to the use of solitary confinement, including the dire need to significantly reduce the numbers of vulnerable people who are incarcerated so that social distancing and proper sanitation can be achieved and lives saved. The Louisiana Stop Solitary Coalition (LSSC) is a group of nearly 200 solitary survivors, family members of incarcerated people, faith leaders, community members, and advocates across the state committed to ending the use of long-term solitary confinement in Louisiana by 2028.
Louisiana Stop Solitary Coalition www.lastopsolitary.org

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Page 2 of 5 RE: ALTERNATIVES TO SOLITARY AND CAMP J DURING COVID-19.

Use of Camp J and Lockdown We are extremely concerned about the plan announced in March by the Department of Corrections to transfer and house prisoners and detainees at Camp J and the use of lockdown across facilities as the primary methods for containing the spread of COVID-19. Prior to the pandemic, LSSC was fully invested in working with DOC toward implementation of the Vera report1 and engaging with them in preparation for the 2020 legislative session. We believed trust was built between us around the issue of solitary, and were consequently devastated to learn of the re-opening of Camp J. The closure of Camp J communicated to the currently and formerly incarcerated people of Louisiana - in a way that only actions, not mere words, can do - that the DOC was committed to putting the past behind us and moving forward to a future where alternatives to segregation were possible. Additionally, multiple state and local facilities are using extended lockdown, including where large numbers of people close to their release date are housed, which surprises us because we appreciated the DOC’s pre-COVID responsiveness in curtailing the use of lockdown in jails. We know that extended lockdown and isolation is in use from the hundreds of calls we receive at our respective organizations.
Medical Isolation v. Solitary/Lock-Down Doctors and health officials have described the differences between medical isolation and solitary and noted that the use of punitive methods for those with COVID-19 or its symptoms may exacerbate the spread of the virus.2 Incarcerated people may be dissuaded from reporting symptoms of the virus if they believe the response is transfer to Camp J or lockdown of their unit if they admit they are feeling ill. Lockdown and solitary also decrease the interaction of staff with prisoners, allowing symptoms to accelerate to dangerous levels before the facility can take proper precautions. As stated best by several corrections officials in a recent webinar, there is no public safety without public health.3 For these reasons, we ask that the administration immediately refrain from use of lockdown or solitary - including the use of Camp J - to achieve medical isolation.
Reduce Prison and Jail Populations Louisiana is only as healthy as our most vulnerable people. Doctors and Professors from Tulane and Louisiana State University,4 clinicians and medical students,5 and public health experts6 have
1 The Safe Alternatives to Segregation Initiative: Findings and Recommendations for the Louisiana Department of Public Safety and Corrections, and Progress Toward Implementation, May 2019, https://www.vera.org/downloads/publications/safe-alternativessegregation-initiative-findings-recommendations-ldps.pdf. 2 David Cloud, et.al., The Ethical Use of Medical Isolation – Not Solitary Confinement – to Reduce COVID-19 Transmission in Correctional Settings, AMEND, April 9, 2020 https://amend.us/wp-content/uploads/2020/04/Medical-Isolation-vsSolitary_Amend.pdf. 3 COVID-19 and Prisons: Centering Human Dignity Across Decarceration, Reentry, and Operations, VERA Institute of Justice, https://www.vera.org/research/covid-19-and-prisons. 4 Public Health Letter to Governor Edwards, (March 27, 2020), https://www.scribd.com/document/453999944/Public-Health-Letterto-Gov-Edwards. 5 Marcia Glass, Health Care Professionals Demand the Reduction of Orleans Jail Population, Medium (March 31, 2020), https://medium.com/@marciaglass/health-care-professionals-demand-the-reduction-of-orleans-jail-population-40eac4348778. 6 An open letter regarding COVID-19 and jails in Orleans Parish, Louisiana, (March 25, 2020), https://sph.tulane.edu/open-lettercovid19-jail.
Louisiana Stop Solitary Coalition www.lastopsolitary.org

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Page 3 of 5 RE: ALTERNATIVES TO SOLITARY AND CAMP J DURING COVID-19.

reiterated the national guidance from the CDC7 about preventing the spread of this virus through social distancing and sanitation methods. I am sure everyone on the Prison Subcommittee is well aware of, and may have even participated in drafting, that guidance. All advise that a drastic reduction of incarcerated populations is required to achieve the CDC’s recommendations.

We agree with the health experts and medical professionals referenced above that the best
method for achieving proper social distancing and sanitation - and thus obviate the need for the use of lockdown and solitary - is to release significantly larger numbers of people from
prisons and jails. These requests have already been communicated to the administration by the advocacy community, and do not require reiteration here.8 We will note that this is a bipartisan
issue, with Americans for Prosperity calling for strategic reductions in jail and prison populations,9 Right on Crime encouraging steering clear of solitary confinement,10 and recent
polls demonstrating bipartisan support with 63% of voters supporting the release of people from jails and prisons to stop the spread of COVID-19, and 72% supporting clemency for elderly, incarcerated people.11

There is still an opportunity to slow the spread of the virus, “flatten the curve,” and prevent unnecessary deaths. The quickest and least expensive way Louisiana can avoid a catastrophe is to access immediately available federal funding to facilitate the individual assessment, release, supervision, electronic monitoring, and/or home confinement options for prisoners. The Bureau of Justice Assistance has announced formula grants that can be drawn down during this emergency to support a broad array of justice system responses to COVID-19.12 Louisiana is allocated $9.7 million for this purpose and cities, townships, and parishes can apply for an additional $5 million in funding (allocations ranging in size from $33,000 to $1 million depending on population). Applications are due by May 29th. Due to Louisiana’s partnership with The Pew Charitable Trusts on justice reinvestment, staff from that organization are available to assist in applying for the funds.13

7 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html. 8 Covid-19 Prevention and Protection in Louisiana Facilities, available at: https://www.splcenter.org/sites/default/files/coalition_letter_to_governor_edwards_re_covid_19_prevention_and_protection_in_louisi ana_facilities.pdf; Covid-19 is a juvenile justice crisis; community demands action now!, available at: https://www.fflic.org/events; and Temporary Release/Furlough, Federal Funding, and Technical Assistance for Jails, available at: https://8b94b7da-de55-42faaa27-bc457a433590.filesusr.com/ugd/c581f9_d5da3d1abdc04c6b8cf0927668beed52.pdf. 9 Letter of Recommendations of Mark Holden, Americans for Prosperity, https://mk0xituxemauaaa56cm7.kinstacdn.com/wpcontent/uploads/2020/04/AFP-CJR-COVID-Recommendations-Letter.pdf. 10 Levin, Marc, Don’t Let Covid-19 Spread the Use of Solitary Confinement, available at: https://theresurgent.com/2020/04/17/dontlet-covid-19-spread-use-of-solitary-confinement/. 11 ACLU Poll Shows Wide-Ranging Support for Releasing Vulnerable People from Jails and Prisons, March 30, 2020, https://www.aclu.org/press-releases/aclu-poll-shows-wide-ranging-support-releasing-vulnerable-people-jails-and-prisons. 12 Coronavirus Emergency Supplemental Funding Program Solicitation FY 2020 Formula Grant Solicitation, https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/bja-2020-18553.pdf. 13 Please contact Terry Schuster, Manager at the Public Safety Performance Project, Office phone: 202.540-6437, Mobile: 512.468.4486, Email: tschuster@pewtrusts.org.
Louisiana Stop Solitary Coalition www.lastopsolitary.org

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Page 4 of 5 RE: ALTERNATIVES TO SOLITARY AND CAMP J DURING COVID-19.

Use of Alternative Sites to Relocate Infected Prisoners In the event that the DOC or a given jail cannot meet CDC guidelines without the use of solitary or lockdown, is unable to supervise prisoners at home through federal funding opportunities, and cannot utilize temporary release or furlough, we ask that you recommend that prisoners be relocated to a building where social distancing and compliance with public health guidelines is possible. First and foremost, we encourage coordination with the Medical Monitoring Station in the New Orleans Convention Center14 and the Station in development in Baton Rouge. Additionally, under a state of emergency, the Governor can transition the management of local state-owned facilities to the temporary authority of the state, engage the Louisiana National Guard to maintain site control and provide medical services, and utilize the state-based federal funding to employ medical professionals to care for individuals with COVID.15 These actions are not unprecedented.16 Not too long ago, FEMA used the publicly-financed Zephyr Stadium as a rescue location for Hurricane Katrina survivors.17 A review of the 5 parishes identified as “Tier I” by justice reinvestment reveals available locations with sufficient amenities to ensure hygienic and safe living conditions for individuals needing treatment or quarantine.18 The majority of these facilities are local convention centers or recreation or community centers.
Conclusion As the most incarcerated state in the world, Louisiana will not flatten the curve without serious attention to our incarcerated populations. In summary, we urge you to make the following recommendations: close Camp J, refrain from the use of lockdown, release more people, and transfer people who are sick to Medical Monitoring Stations and hospitals. The hot days of summer are coming and the conditions at Camp J will only worsen. Indeed, the lack of central air in many Louisiana prisons and jails could spell disaster for the further spread of COVID-19 if sufficient measures are not immediately taken to adhere to CDC guidelines for social distancing and sanitation.

14 Louisiana National Guard Public Affairs Office, Louisiana National Guard increases its response force and mission support, April 10, 2020, https://bossierpress.com/louisiana-national-guard-increases-its-response-force-and-mission-support/. 15 The Governor has this authority under the declaration of a “public health emergency” by Proclamation 25 JBE 2020 (March 11, 2020) and by statutory authority of La. R.S. 29:724(D)(3), (4), (7). The Governor’s authority to call forth the National Guard is found under La. R.S. 29:7(A)(1)(a), (e) which allows him, with or without a state of emergency, to request National Guard assistance to provide for emergency preparedness or assist civil authorities and to specifically assist civil authorities in guarding prisoners. 16 Matt Hickman, From parking garages to parks, these are the pop-up medical facilities of the COVID-19 pandemic, March 31, 2020, https://archpaper.com/2020/03/covid-19-hospital-conversions/. 17 See http://www.davehoekstra.com/wp-content/uploads/2014/03/NEW-ORLEANS-BASEBALL.pdf. 18 Caddo: Shreveport Convention Center; St. Tammany: The Harbor Center, Furhmann Auditorium, Bogue Falaya Hall, Fontainebleau State Park, Slidell Municipal Auditorium, Mandeville Community Center, Bush Community Center, Fendlason Community Center, Lacombe Activity Center, Pearl River Activity Center; East Baton Rouge: Chaneyville Community Center, Charles R. Kelly Community Center, Dr. Leo S. Butler Community Center, Dr. Martin Luther King, Jr. Community Center, Jewel J. Newman Community Center, Capitol Park Event Center, Wanham Community Center, Old Woman’s Hospital, Celtic Studios (publicly-financed project); Jefferson: Alario Event Center, Pontchartrain Convention & Civic Center, Jedco Conference Center, Gretna Community Center, Fischer Senior Community Center, Bridge City Community Center, Marrero Senior and Community Center, Harvey Community Center, Dorothy B. Watson Community Center, Hazel Rhea Hurst Community Center, J.C. Simmons Community Center, Woodmere Community Center; Orleans: Gallier Hall, Morris F.X. Jeff, Sr. Municipal Auditorium, Murray Henderson Community Clinic, St. Bernard Recreation Center, Treme Recreation Community Center, Stallings Recreation Center, Lyons Recreation Center.
Louisiana Stop Solitary Coalition www.lastopsolitary.org

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Page 5 of 5 RE: ALTERNATIVES TO SOLITARY AND CAMP J DURING COVID-19.

Another vision of how Louisiana weathers this crisis is possible. We are not permanently on the path of New York, Chicago, or Ohio.19 We have time to change course, but it is very little time. The LSSC is committed to navigating this crisis with this Task Force and Subcommittee and providing you with technical or other assistance to reduce prison populations. Whether it be identifying and eliminating barriers to release like municipal detainers, out-of-parish warrants, or probation/parole holds and technical violations; researching additional publicly financed projects and state-owned properties near prisons for establishing Medical Monitoring Stations; applying for federal funding; or continuing to convince the public of the need to address the impending crisis in our prisons and jails in order to flatten the curve, we stand ready to assist you and ensure that every parish in Louisiana navigates the spread of this virus with minimal community impact.
Signed,

Vanessa Spinazola Executive Director, Justice & Accountability Center of Louisiana Louisiana Stop Solitary Coalition www.lastopsolitary.org

19 Megan Crepeau and Jason Meisner, Second inmate at Cook County Jail dies of COVID-19, and the family of the first files lawsuit, April 10, 2020, https://www.chicagotribune.com/coronavirus/ct-coronavirus-cook-county-jail-inmate-dies-20200410po2oc6czfnd3lhdqphpawsnpwy-story.html; Coronavirus in Ohio: More than 1,800 inmates at Marion Correctional test positive, April 19, 2020, https://www.dispatch.com/news/20200419/coronavirus-in-ohio-more-than-1800-inmates-at-marion-correctional-test-positive; and Coronavirus spread at Rikers is a 'public health disaster', says jail's top doctor, April 1, 2020, https://www.theguardian.com/usnews/2020/apr/01/rikers-island-jail-coronavirus-public-health-disaster.
Louisiana Stop Solitary Coalition www.lastopsolitary.org

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EXHIBIT 25

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From: Sent: To: Subject:

Rev. Anderson <preachisliteracy@hotmail.com> Saturday, April 25, 2020 1:00 PM Darryl Gissel Re: Refusal of donation of N-95 Masks

Dear Darryl:
Thank you for your speedy response. We firmly believe the N-95 masks are more appropriate for individuals who don't have the ability to socially distance themselves in an active Coronavirus hot zone. There is no organization better able to speak factually to the risk than those who have experienced it.
We firmly believe the donation will go towards saving lives. We are increasing concerned with the parish's continued lack of a sense of urgency regarding the containment protocols.
East Baton Rouge Parish Prison continues to increase in positive test results and yet no commitment to baseline testing. Orleans Parish Prison is doing baseline testing because they know the projectory is going up.
We are asking the parish to please stop treating this facility as business as usual. We can save lives if we move aggressively towards understanding the actual risk rather than waiting for what is already happening in every jail and prison in the country.
This is not a public safety crisis this is a public health crisis. Please treat it like the house is on fire because it is and our friends and loved ones including deputies and vendors are in that house.
Rev. Alexis Anderson Executive Director PREACH Member East Baton Rouge Parish Prison Reform Coalition

From: Darryl Gissel <DGISSEL@brla.gov> Sent: Saturday, April 25, 2020 11:30 AM To: Rev. Anderson <preachisliteracy@hotmail.com> Subject: Re: Refusal of donation of N-95 Masks
We did deliver 1,500 cloth mask which are washable to the prison. I will follow up on this for response
Sent from my iPhone

On Apr 24, 2020, at 10:48 PM, Rev. Anderson <preachisliteracy@hotmail.com> wrote:

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*****EXTERNAL EMAIL: Please do not click on links or attachments unless you know the content is safe.*****
Dear Darryl:
We were truly disheartened to learn that VOTE's generous and sorely needed donation of N-95 masks for the use of those housed in the East Baton Rouge Parish Prison was declined.
Given the fact that the masks will provide some degree of safety in a facility where those housed don't have the ability to social distance and where currently only those who are quarantined, receive any protection, is extremely troubling.
Public health should trump all other concerns. The Department of Corrections is able to accept a donation so it appears that public safety and security are not the issue. The Coalition is requesting that the parish would investigate this issue.
Our loved ones who are currently housed in the jail are primarily pre-trial and all are human beings worthy of having their public safety and health protected. We believe this donation is a win for everyone.
As the jail continues to be a Coronavirus hot spot whose positive tests continue to increase daily, the no cost opportunity to embrace CDC and LDH guidance would seem to be a win for all.
As we continue to await the results of the Shaheed Claiborne investigation and look forward to resolution of this pandemic we believe insuring that proper protective gear is provided is most imperative during this season.
We look forward to the Mayor's response.
Respectfully submitted,
Rev. Alexis Anderson Executive Director PREACH Member East Baton Rouge Parish Prison Reform Coalition
From: Darryl Gissel <DGISSEL@brla.gov> Sent: Thursday, April 16, 2020 11:30 AM To: Chris Csonka <ccsonka@ebrcjcc.org> Cc: Sherie Phillips Thomas <info@lahealthcareinstitute.com>; Rev. Anderson <preachisliteracy@hotmail.com> Subject: Report on Health Care
Please send out to committee members
Darryl Gissel Chief Administrative Officer
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Case 3:20-cv-00278-BAJ-SDJ Document 4-26 05/27/20 Page 4 of 4 Office of the Mayor-President 222 St. Louis Street, 3rd Floor Baton Rouge, La 70802 (225) 389-5103
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EXHIBIT 27

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Declaration of Susan E. Hassig, MPH, DrPH
1. I am Susan E. Hassig, MPH, DrPH, Associate Professor of Epidemiology, Director of the MPH Program in Epidemiology, Tulane School of Public Health and Tropical Medicine, New Orleans, LA. I have conducted research and taught in the subject area of infectious diseases epidemiology for over 30 years. This time period spans the major epidemic threats of HIV, SARS, H1N1 (2009), influenza, Zika, Ebola, and now COVID-19. I base my declaration on the knowledge and experience I have gained in those years regarding the dynamics of spread in infectious disease and what steps can be taken to minimize or eliminate that spread in populations.
2. The virus that causes the COVID-19 disease is a novel (new) pathogen to the human race. As such, we are all susceptible to infection. Infection with this virus moves easily from person to person in two basic ways: direct, by close (within 6 feet) contact between an infected and an uninfected person, with infection occurring by the inhalation of infected droplets or aerosols from the infected person’s mouth while talking, shouting, singing, coughing, sneezing, etc.; and indirect, by the contamination of surfaces in the environment (tabletops, handrails, doorknobs, etc.) by an infected person via direct deposition of infected respiratory droplets or secretions to the surfaces, or by indirect deposition from the contaminated hands of the infected person. An uninfected person who then touches these same surfaces with their hands and subsequently touches their face (mouth, nose, eyes) can then become infected. Each newly infected person can become infectious to others in a matter of days, with or without presenting with symptoms, and may remain infectious for a week or more.1
3. There is no vaccine or medication to prevent infection from COVID-19. In order to limit the spread of the disease, the CDC and other health agencies recommend the following: washing hands frequently, keeping shared surfaces clean, covering a cough with a disposable tissue or the inside of your elbow, staying away from other people if you are sick, and finally wearing a mask in all public environments.2 However, the cornerstone of the CDC’s guidance is social distancing—remaining at least 6 feet away from all other persons and generally avoiding congregate spaces, which is necessary even if individuals practice all the other preventative measures.3 Therefore by definition, persons confined in correctional facilities are at risk of coronavirus infection because they are unable to
1 How COVID-19 Spreads, Centers for Disease Control and Prevention, April 13, 2020, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html 2 How to Protect Yourself & Others, Centers for Disease Control and Prevention, April 13, 2020, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html 3 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control and Prevention, March 23, 2020, available at: https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html.
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implement distancing behaviors independently. They must rely on the facility to house them in a manner that conforms to that distancing guidance.
4. While we are all equally susceptible to infection with COVID-19 if we are exposed, some members of the population are more vulnerable and at elevated risk of very serious outcomes, up to and including death, if infected. These include persons 65+ years of age with or without pre-existing conditions and persons of any age with any of a number of chronic health conditions, including but not limited to: hypertension and other cardiovascular disease, obesity, diabetes, asthma, other chronic lung diseases, chronic kidney or liver disease due to any cause, and suppressed immune systems for any reason.4
5. The CDC has promulgated guidance for correctional and detention facilities.5 This guidance appears to form the basis for the East Baton Rouge Parish Prison’s response to this pandemic. However, it is my position that this guidance is, at best, the bare minimum and is not stringent enough to actually achieve the goal of keeping both staff and detainees safe from the virus. Anything less than 6 ft distancing is inadequate, and even that is not sufficient in the absence of universal face covering and frequent surface disinfection. The threat of coronavirus as it relates to correctional facilities is most reasonably divided into two parts: preventing introduction of the virus into the center population, and preventing the spread of coronavirus within the center once it is introduced.
6. To prevent the transmission of the virus in the correctional facility setting, the first thing that must change is the mindset of the facility. The assumption should be that the virus is already present in the facility, as borne out by the detection of confirmed COVID cases in most local correctional facilities.6 A system of disinfection by staff, equipped with appropriate personal protective equipment (PPE) and cleaning materials, must be established on a daily basis for all living areas, especially those used in common. The cleaning should be vigorous and occur as frequently as possible, especially in common areas. Facilities should be cleaned multiple times per shift, and particularly between use of common areas by different groups of prisoners, since the virus can survive for extended periods of time on different surfaces.7
4 People Who Are at Higher Risk for Severe Illness, Centers for Disease Control and Prevention, April 15, 2020, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html 5 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control and Prevention, March 23, 2020, available at: https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html. 6 https://www.wdsu.com/article/majority-of-covid-19-cases-in-louisiana-prisons-that-mass-test-areasymptomatic/32634504# 7 van Doremalen N, Morris D, Bushmaker T et al., Aerosol and Surface Stability of SARS-CoV-2 as compared with SARS-CoV-1. New Engl J Med (2020)
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7. The CDC’s Interim Guidance states that “whenever possible, all staff and detainees should maintain a distance of six feet from one another.” However, the use of “whenever possible” does not comport with scientific consensus on this matter. It is my scientific opinion that all persons detained in the facility should be, at all times, no closer than 6 ft from any other detainee. This translates to ~144 sq ft per detainee for those held in some kind of congregate setting. Bunk beds should not be used, as the vertical separation would not meet the 6 ft buffer, and would place the person on the lower bunk at risk of exposure from an infected upper bunk inhabitant. If individuals are held in individual spaces with solid walls, the sq ft needs may be lower, but any open (barred) cell wall setting would still require 144 sq feet/detainee. This space is needed to provide the physical buffer zone to reduce the risk of droplet spread between detainees. If detainees move out of their living spaces for meals, medical care, access to phones, etc. all persons should be masked and maintain 6 ft of separation during movement and at the destination.
8. The Interim CDC Guidance also recommends screening only new entrants to a detention center.8 However, it is my opinion that detainees should be temperature and symptom screened twice daily, morning and evening, as the clinical status of a COVID infected person can change quickly, and we know that shedding increases as symptoms emerge. Twice daily screenings are particularly important in correctional facilities, where staff come and go between the facility and the community daily. Anyone presenting with fever or other symptoms consistent with coronavirus should be immediately removed to medical isolation, consisting of a private, well-ventilated and sanitary environment, preferably in a medical setting, for further evaluation, including testing for flu and coronavirus. Medical follow-up should be provided based on the findings of the testing. Any detainee who was in close contact with the symptomatic individual without a face covering should also be placed in individual quarantine, also a private, well-ventilated and sanitary environment, for observation for a period of 14 days. A quarantined detainee should be medically monitored twice a day for development of symptoms and tested prior to being released back into the general population. However, proper isolation will only slow, rather than stop, the spread of COVID-19 in congregative environments as many COVID-19 carriers are contagious even before they experience symptoms.9
9. Cohort quarantining, as mentioned in the CDC Guidance, and as implemented in the case of the East Baton Rouge Parish Prison (EBRPP) in groups ranging from 40-100 inmates,
8 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control and Prevention, March 23, 2020, available at: https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html. 9 Wei WE, Li Z, Chiew CJ, Yong SE, Toh MP, Lee VJ. Presymptomatic Transmission of SARS-CoV-2 — Singapore, January 23–March 16, 2020. MMWR Morb Mortal Wkly Rep 2020;69:411–415. DOI: http://dx.doi.org/10.15585/mmwr.mm6914e1
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does not meet the most basic necessity of distance between detainees to prevent further transmission of the virus in the cohort. In the absence of appropriate distancing of at least 6 feet apart at all times within the cohort, additional infections will occur, expanding the number of infected detainees (and likely staff as well), amplifying the virus in the facility, and should not be utilized. It is once again critical to remember that this virus is extremely contagious and is shed by infected individuals prior to the presence of symptoms.10 Any cohorting that mixes individuals with different status related to COVID infections (e.g., infected, suspected/under investigation or awaiting test results, exposed and unexposed) will only serve to increase the likelihood of expanded transmission.
10. If the jail does not have the space to implement these most basic of virus spread suppression methods, the jail needs to decrease the size of the detainee population to fit the physical spacing needed to prevent transmission. The persons at greatest risk, those with the aforementioned pre-existing medical conditions, should be prioritized for release to family or friends, to make room within the facility to maintain safe distancing. If the number of detainees in the jail after release of the most vulnerable still does not allow for adequate distancing, then additional detainees should be released to achieve it. Movement of detainees between jails or other correctional facilities is not advised, as this may introduce infection into additional facilities and increase the chance of uncontrolled community spread in facilities in which COVID-19 is already present.
11. The CDC Guidance states that “facilities should quarantine all new entrants for 14 days before they enter the general population.”11 However, to reduce the likelihood of introduction and spread of the virus into a specific jail, NO new detainees should be introduced to any existing jail population unless social distancing conditions (above) can be maintained, and any new detainee(s) have cleared a 14-day individual quarantine period at the destination facility. This quarantine would apply to any new arrival, irrespective of their COVID status. Any transfer of any detainee known or suspected of infection should NOT occur, except to release them to an external health care facility or an official isolation center set up outside of the correctional facility to care for such persons. Transfer to a different correctional facility which does not meet basic requirements for the provision of sound medical care, as has occurred at EBRPP in the
10 Kimball A, Hatfield KM, Arons M, James A, et al., Asymptomatic and Presymptomatic SARS-CoV-2 Infections in Residents of a Long-Term Care Skilled Nursing Facility — King County, Washington, March 2020. MMWR, 3 April 2020, 69(13);377–381; Guoqing Qian, Naibin Yang, Ada Hoi Yan Ma, et. al, A COVID-19 Transmission within a family cluster by presymptomatic infectors in China, Clinical Infectious Diseases, ciaa316, https://doi.org/10.1093/cid/ciaa316 11Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control and Prevention, March 23, 2020, available at: https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html.
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past, should not occur.12 The transport process in and of itself often places both detainees and accompanying staff in potentially risky proximity (less than 6 feet in all directions) to one another, potentially enabling viral transmission, and should be minimized or avoided until local social distancing restrictions are modified or lifted altogether.13
12. All jail staff should be screened for fever and cough daily, and for illness in household members/recent close contacts upon arrival for their duty shift. Ill staff should return home and not return to work until symptoms have ceased for at least 24 hours. The CDC guidance states, “cloth face coverings should be worn by detainees and staff (when PPE supply is limited) to help slow the spread of COVID-19.” Since community and asymptomatic spread is established throughout the country and N-95 masks are needed in health care settings, all staff should wear cloth or surgical masks, or other fabric face coverings while on duty to reduce the possibility of spread from staff members to others, since they move in the community when not at work. However, it must be remembered that cloth face coverings, unlike N-95 masks, are not sufficient to prevent infection in the wearer,14 but rather serve as a “source reduction,” reducing the likelihood of widespread viral shedding by the wearer. While at work, staff should also maintain at least 6 ft separation from each other and detainees, whenever possible, for added protection against infection.
13. No visitors should be allowed to physically enter the facility, but a mechanism to facilitate safe, remote contact with counsel and family should be maintained.
14. Importantly, the CDC Guidance does not mandate testing; however, the State of Louisiana has begun a process of testing state facilities, and local jails around the state are beginning to follow suit.15,16 Early studies have found that the false negative rate of COVID-19 tests is approximately 30 percent.17 These figures suggest both that testing is insufficient at the jail and that the true number of COVID-19 carriers may be orders of
12 https://jjie.org/2020/04/27/desperate-louisiana-prisoners-say-wardens-staff-not-following-coronavirus-rules/ 13 Liew MF, Siow WT, Yau YW, See KC. Safe patient transport for COVID-19. Crit Care. 2020;24(1):94. Published 2020 Mar 18. doi:10.1186/s13054-020-2828-4 14 Rengasamy S, Eimer B, Shaffer RE. Simple respiratory protection—evaluation of the filtration performance of cloth masks and common fabric materials against 20-1000 nm size particles. Ann Occup Hyg 2010 Jun 28;54(7):789-98 15 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control and Prevention, March 23, 2020, available at: https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html. 16 https://www.wdsu.com/article/majority-of-covid-19-cases-in-louisiana-prisons-that-mass-test-areasymptomatic/32634504# 17 Yang Yang, Minghui Yang, Chenguang Shen, et al., Evaluating the accuracy of different respiratory specimens in the laboratory diagnosis and monitoring the viral shedding of 2019-nCoV infections, medRxiv 2020.02.11.20021493; doi: https://doi.org/10.1101/2020.02.11.2002149
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magnitude higher.18 This certainly suggests that the current guidance in use by the jail is inadequate to prevent and contain COVID-19 infections in their facility. Much more aggressive and effective action must be taken to reduce the threat of coronavirus to both detainees and staff in the jail. I have reviewed the following declarations from individuals currently in, or previously in the EBRPP: Joseph Williams, Christopher Rogers, Clifton Belton, Forest Hardy, Cedric Spears, Jerry Bradley, Cedric Franklin, and Willie Shepherd. Taking these declarations as true, it is abundantly clear to me that EBRPP is adhering to neither the spirit nor the letter of the CDC Guidance, and thus is placing the facility staff and inmates at elevated and unnecessary risk of infection with coronavirus and all of the potential consequences of that infection.19
I declare under penalty of perjury that the foregoing is true and correct.

_________________________________ Susan E. Hassig, MPH, DrPH

Date: May 25, 2020

18 Justin D Silverman, Nathaniel Hupert, Alex D Washburne, Using ILI surveillance to estimate state-specific case detection rates and forecast SARS-CoV-2 spread in the United States, medRxiv 2020.04.01.20050542; doi: https://doi.org/10.1101/2020.04.01.20050542 19 Williams Decl.; Rogers Decl.; Belton Decl.; Hardy Decl.; Spears Decl.; Bradley Decl.; Franklin Decl.; Shepherd Decl.
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 Case 3:20-cv-00278-BAJ-SDJ Document 38 06/05/20 Page 1 of 29

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

CLIFTON BELTON, JR., JERRY BRADLEY, CEDRIC FRANKLIN, CHRISTOPHER ROGERS, JOSEPH WILLIAMS, WILLIE SHEPHERD, DEVONTE STEWART, CEDRIC SPEARS, DEMOND HARRIS, and FORREST HARDY, individually and on behalf of all Others similarly situated

CIVIL ACTION

VERSUS

SHERIFF SID GAUTREAUX, in his official Capacity as Sheriff of East Baton Rouge; L.T. COL. DENNIS GRIMES, in his official Capacity as Warden of the East Baton Rouge Parish Prison; CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE

NO. 3:20-CV-278-BAJ-SDJ

MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

MAY IT PLEASE THE COURT:

Defendant, the City of Baton Rouge/Parish of East Baton Rouge (“City/Parish”),

respectfully submits this Memorandum in Opposition to Plaintiffs’ Emergency Motion for

Temporary Restraining Order.

I. INTRODUCTION Plaintiffs seek a TRO via writ of habeas corpus or, in the alternative, through 42 U.S.C.

1983, ordering the immediate release of Plaintiffs and members in the purported subclass

"Medically Vulnerable Subclass." Plaintiffs argue that the court must issue a TRO requiring

immediate release because "no measures" that defendants can take will protect them from "an

unconstitutionally high risk of death or serious bodily harm" through exposure to the "surging

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COVID-19 virus.” The three named plaintiffs in the subclass they purport to represent, however, all tested positive for COVID-19 and recovered from the disease.
Plaintiffs fail to meet their burden of establishing any of the requirements for preliminary injunctions. Plaintiffs fail to show a substantial likelihood of success on the merits of their claims under the Eighth Amendment and the Fourteenth Amendment of the Constitution. Further, they ignore the numerous safeguards put in place to combat COVID-19 at the jail. And they ask the court to disregard the deference entitled to government officials charged with the operation of correctional facilities. For the reasons set forth below, Plaintiffs’ Motion for Temporary Restraining Order should be denied. II. BACKGROUND
A. Procedural History On May 4, 2020, Clifton Belton, Jr. (hereinafter referred to as “Belton”) filed his pro se Complaint regarding the conditions of the East Baton Rouge Parish Prison (hereinafter referred to as “the jail”) during the ongoing COVID-19 pandemic.1 On May 22, 2020, attorney David Utter filed an Ex Parte Motion to Enroll as counsel of record on behalf of Belton.2 On May 27, 2020, Mr. Utter filed an Amended Class Action Complaint along with attached exhibits regarding the condition of the jail.3 The named Plaintiffs are Clifton Belton Jr. Jerry Bradley, Cedrick Franklin, Christopher Rogers, Joseph Williams, Willie Shepherd, Devonte Stewart Cedrick Spears, Demond
1 Rec. Doc. 1. 2 Rec. Doc. 3. 3 Rec. Doc. 4.
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Harris, and Forrest Hardy.4 In the Amended Complaint, Plaintiffs describe a medically vulnerable subclass of plaintiffs who are allegedly at a greater risk of infection and death from COVID-19.5
On the same day, Plaintiffs filed an Emergency Motion for Temporary Restraining Order against the City/Parish, Sheriff Sid Gautreaux, and Warden Dennis Grimes (in their official capacities) asking the Court to release the medically vulnerable subclass members immediately.6 A telephone status conference took place on June 1, 2020; wherein the Court set an opposition filing deadline of June 5, 2020 to the plaintiffs’ Emergency Motion for Temporary Restraining Order. Additionally, the parties reached agreement on the terms and conditions of a Rule 34 inspection of the jail facility to take place on June 5, 2020.
B. The Jail’s Response to COVID-19 The situation involving COVID-19 pandemic has been a rapidly changing and evolving situation for the world. On March 11, 2020, the World Health Organization declared the novel coronavirus a pandemic.7 The Louisiana Department of Health reported Louisiana’s first presumptive positive case of COVID-19 on March 9, 2020. The Governor of Louisiana declared a statewide public health emergency on March 11, 2020.8 The CDC recognized that correctional institutions provide essential public services for protecting of the health and safety of incarcerated persons, staff and visitors. and have added challenges during the outbreak of COVID-19 and therefore provided that guidance to these institutions on March 23, 2020. Kellie Jolivette, EBRSO Human Resources Director, sent out several departmental notifications regarding COVID-19. When the State of Louisiana had six (6) presumptive positive
4 Id. 5 Id. 6 Rec. Doc. 7. 7 See WHO Director-General’s opening remarks at the media briefing on COVID-19 – 11, March 2020 (March 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-onCOVID-19---11-march-2020. 8 25 JBE 2020
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cases. On March 11, 2020, Kellie Jolivette sent a departmental wide communication out to all employees to educate them on the virus.9 On March 25, 2020 instructional videos were posted to YouTube and all EBRSO users were notified that videos had been created to demonstrate the proper use of personal protective equipment. (Kwan affidavit and conventionally filed exhibits) On March 27, 2020 Kellie Jollivette sent an email to deputies to provide a process for reporting COVID-19 exposures, testing protocol and return to work information. On April 9, a flow chart to show what actions should be taken by employees was also disseminated. The Sheriff’s office was actively working to educate deputies, including the correctional staff regarding the virus at the onset of the situation.10 The sheriff’s office recognized that the best method to stem the spread of the virus was to ensure that the deputy was not infected and educate everyone regarding the symptoms. Understanding that the jail needed extra protection to ensure the health of the deputies to not bring the virus into the jail, on April 3, 2020 the sheriff made available a decontamination trailer to all including deputies assigned to the jail.
In response to the COVID-19 pandemic, the Warden implemented special guidelines. On March 12, 2020, the Warden prepared and disseminated a document entitled, “COVID 19 (Coronavirus) prevention and contingency Plan for East Baton Rouge Parish Prison (3/12/2020)” to all deputies working at the prison and to all inmates.11 This communication promoted cleaning, and despite plaintiffs’ assertions specifically mandated that Central Booking be cleaned twice per day. Under this policy, inmates are given cleaning supplies daily to clean their areas. The bars of the cells are sprayed daily by the Deputies with Opticlean-v-Liquid detergent with bleach and Maxim Fresh scent.
9 Jolivette affidavit – Exhibit 4. 10 Jolivette affidavit – Exhibit 4. 11 Warden Affidavit – Exhibit 1.
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The CDC guidelines were promulgated on March 23, 2020. The Warden is currently following the CDC guidelines for the management of coronavirus in correctional and detention facilities.12 In addition to the CDC guidance. Subsequently, the jail has also followed policies from the Louisiana Department of Corrections which policy was initially issued on April 6, 202, and updated on May 11, 2020.13 In response to the DOC guidance issued, the Louisiana Sheriff’s Association published “COVID-19 FAQ and Guidance to Prisons Re: Screening, Assessment, Testing and Infection Control”. The jail has used this document to educate jail staff and inmates on the COVID-19 situation. (Exhibit C) Although communicated to the staff before, the Warden formally adopted the CDC guidelines into policy at EBRPP on April 14, 2020 with policy No. D. 201 (warden affidavit) on April 14, 2020.
In order to address infection control, several operational changes were made. Communications were made to inmates to educate inmates on the spread of COVID and protocols for addressing the spread of COVID. Inmates were provided education and information regarding the spread of COVID-19 through signage. Additionally, informational videos were played on the monitors in the jail to inform and educate inmates reading COVID-19.14 Deputies distributed additional cleaning supplies and hygiene items at the same time verbally requesting inmates to clean areas due to Coronavirus.15
Cleaning protocols were enhanced. The mattresses, toilets and shower areas are sprayed and cleaned regularly. Attached are logs evidencing the cleaning of these items. Additional cleaning supplies were obtained, and Logs of additional supplies distributed have been kept documenting efforts to provide disinfectant, bleach, soap, and other efforts by the jail staff to
12 Affidavit of Warden Grimes - Exhibit 1, Attachment A. 13 Affidavit of Warden Grimes - Exhibit 1, Attachment A. 14 Affidavit of Warden Grimes - Exhibit 1. 15 Affidavit of Warden Grimes - Exhibit 1.
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ensure that there are available cleaning supplies. In addition to these cleaning supplies, inmates are provided additional supplies for personal hygiene. Inmates are provided with extra soap for personal hygiene and plenty of towels to clean their cells.16 An example of a typical shift where in water is offered, phones wiped down and chemicals issues, is for May 23, 2020 in B wing is attached to the Wardens affidavit
The jail staff works to ensure social distancing. For all inmates that are positive, all meals and pill call is brought to the inmates, meals are served on Styrofoam to ensure social distancing and contamination. Additionally, all inmates which are being monitored, also have all food and pill call brought to the inmates to reduce movement within the jail and potential exposure.17 Inmates are allowed recreation, but it has been limited or curtailed to reduce movement within the prison. They are allowed Hall time with limited numbers in order to promote social distancing. As more was learned regarding the spread and containment of the COVID-19 virus, the jail provided started providing all inmates with face coverings, and continues to provide all inmates with face coverings, and promotes to inmates the importance of social distancing.18 The jail is required to do an inmate count every day. The inmates on a wing are required to be present. This is one of the most important procedures in the jail. During the court inmates are given orders to wear a mask and social distances as much as possible.19
Limitations have been instituted to reduce the transmission of the virus from visitors. Any individual, whether, an individual is being booked or a member of law enforcement, is screened before entering the jail with questions asked to elicit whether that individual has any COVID Symptoms. Additionally, temperatures are checked for all individuals going into the jail, and well
16 Affidavit of Warden Grimes - Exhibit 1 and attachments. 17 Id. 18 Affidavit of Warden Grimes – Exhibit 1. 19 Id.
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as staff leaving the jail. Screening at the jail was implemented the first week in March before the first reported cases in Louisiana for all incoming inmates. Temperatures on new arrestees were taken recorded by Correcthealth. If there was a suspected case of COVID, both the arrestee and the law enforcement officer would be provided PPE and sent to a hospital.20 All visitation to the prison was stopped effective March 13, 2020. Visitation at the jail has not resumed.
The jail uses the recommended personnel protective equipment. The warden took part in a conference to educate himself on the CDC requirements on March 11, 2020. On March 12, 2020, the warden promulgated, “COVID 19 (Coronavirus) prevention and contingency Plan for East Baton Rouge Parish Prison (3/12/2020)” within the jail This document outlines that PPE and supplies will be provided and must be worn. The CDC recommended PPE for both inmates and staff was followed by the warden is attached to his affidavit. A reminder regarding the proper and necessary use of PPE was sent by Major Fontenot on March 27,2020. As of 3-31-2020, an email from Major Fontenot to all prison users confirmed that PPE was available, encouraged use, and promoted cleaning and disinfection.21 Supplies of PPE are constantly monitored, and updates sent periodically. As has been widely publicized at times PPE was difficult to obtain. The Sheriff’s office kept inventory and reported the status of PPE arability.
Initially, positive individuals were moved from the jail to another facility. Confirmed cases and suspected cases were isolated and quarantined. The jail was segregated into Isolation areas C1, B1 and SO5. These isolated and quartered inmates all were issued masks/bandanas. Temperatures are checked twice daily, and, in the event, anyone had a temperature, they are moved immediately to the isolation area and checked for COVID-19.
20 Correcthealth Affidavit – Exhibit (to be supplemented upon receipt). 21 Fontenot Affidavit – Exhibit 2, attachment A (April 7 email).
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Due to COVID-19 all arrestees are screened before entering central booking in the sally port by the medical department. A series of questions are asked to determine if they have any symptoms, and temperatures are checked.22 (Warden aff ) Inmates remain in booking for two (2) days due to court hearings, Prison Rape Elimination Act (“PREA”) orientation, and then transfer to the intake line which was J-1 where the inmates are monitored for fourteen (14) days separate from general population.23 Booking is cleaned twice per day (warden aff). All cells in the jail are cleaned throughout the day and night. Subsequently, positive cases of COVID were no longer transported to another facility but remained at the facility and have been placed on quarantine.
In the event an inmate has symptoms of COVID-19, he is tested by Correcthealth staff. The jail is advised of the pending test, and pending a test result, he is housed in isolation with other inmates with symptoms of COVID-19. If he is negative, the inmate is housed in general population area. In the event he is positive, he is housed… An inmate must have at a minimum of two (2) negative test results before he may move back to general population. If it is determined that an inmate has been in contact with an inmate that tested positive for COVID-19, that inmate is housed in quarantine for fourteen (14) days.
Correcthealth is the medical provider that evaluates and screens for the ongoing and suspected cases of COVID-19. The Sheriff has been in contact with Dr. Catherine O’Neal, Chief Infectious Disease Physician at Our Lady of the Lake Regional Medical Center (“OLOL”), come into the jail on April 2, 2020. Dr. Catherine O’Neal has over seventeen (17) years of experience in infectious disease and internal medicine. Dr. O’Neal came to the jail to provide updated
22 Affidavit of Warden Grimes - Exhibit 1. 23 Fontenot Affidavit – Exhibit 2, attachment A (April 7 email).
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information and reviewed testing and quarantine, isolation and other areas, and found that the jail was following the recommended guidelines.24
Although Plaintiffs assert that the first case of COVID from the jail was on March 9, 2020, and that person died from COVID, that is not accurate. The first case of an inmate diagnosed with COVID-19 at EBRPP was on March 28, 2019. An individual at the jail on March 28, 2020 was suffering with symptoms of drug withdrawal and was brought to OLOL. While at the hospital, that individual was checked, and diagnosed with COVID-19. That individual recovered, was released from OLOL and did not die.25 Since that time, there have been a total of ninety-two (92) positive test results in the jail, of that number eighty-seven (87) are separate individuals and eighty-one (81) have recovered. Additionally, twenty-nine (29) of those eighty-one (81) have been released from jail. As of June 1, 2020, the jail has only six (6) inmates that have tested positive for COVID19.26 The City/Parish has been able to expedite testing results in one to two days whereas in the general public, test results have taken five or more days.27
In order to ease the hardships faced by individuals in the jail, all co-pays and fees for medical treatment or a sick call have been waived.28 This will also encourage all to seek medical attention for any symptoms they may experience. A sign regarding the waiver of all co-pays is posted in all areas of the jail.29 Further, all inmates are now allowed two (2) free phone calls to
24 Fontenot Affidavit – Exhibit 2, attachment A (April 7 email). 25 Affidavit of Correcthealth – exhibit (to be supplemental upon receipt). 26 Affidavit of Warden Grimes - Exhibit 1. 27 Affidavit of Darrel Gissel - Exhibit 3. 28 Id. 29 Affidavit of Warden Grimes - Exhibit 1.
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family and loved ones and can communicate with counsel via phone which phone conversations with counsel are not monitored.
The jail has maintained a protocol in the event an inmate must be transferred for medical care, for the family to be kept informed.30 Daily briefings with jail staff ensure that guidelines are being followed, and that any changes are communicated promptly and effectively.31 The Policy and Procedures for Mental Health and Special Needs Housing; suicide Prevention E111 updated on 3-6-2020 is still being followed to ensure that inmates with special needs are giving periodic reviews and that treatment plans are put in place by the social workers for Correcthealth.32 Chaplains have continued to work with inmates and be available for counseling.33
C. The Criminal Justice System’s Response to COVID-19 As a result of the Coronavirus (“COVID-19”) pandemic, the City/Parish has taken all responsive measures available for testing, personal protective equipment (“PPE”), education on same to protect the citizens of the City/Parish as much as possible.34 Defendants have worked diligently to address the harms posed by COVID-19 in exceedingly difficult circumstances, with available information and medical guidance changing on a daily basis.35 An extraordinary, collaborative effort was made by Baton Rouge community and criminal justice leaders, including the Mayor, the District Attorney, the Public Defender, the City Prosecutor, and the judiciaries of the 19th Judicial District Court and Baton Rouge City Court, to effectively balance the need to continue to detain rightfully held arrestees to ensure the safety for our community versus the public
30 Id. 31 Id. 32 Id. 33 Fontenot Affidavit – Exhibit 2, attachment A (April 7 email). 34 Affidavit of Darrel Gissel, Exhibit 3. 35 Affidavit of Darrel Gissel, Exhibit 3.
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health.36 The benefits of a lower jail population also, in these trying times, protects the safety of the community, arrestees, and law enforcement.37
As a result of these efforts, the jail presently holds a decade-low for both male and female average daily populations.38 Prison Medical provided the Warden and the District Attorney a copy of their "Chronic Care Clinic List" to assist in the release of persons with medical issues.39
Multiple meetings and conferences have taken place with the respective groups comprising the Criminal Justice Coordination Council to achieve this end.40 Namely, Warden Dennis Grimes; Sheriff Sid Gautreaux; CorrectHealth; the City/Parish’s Medical Director of the Department of Emergency Medical Services (“EMS”), Dr. Dan Godbee; and representatives from outside medical teams (i.e. Dr. Catherine O’Neal, Chief of the Infectious Disease Unit at Our Lady of the Lake Regional Medical Center) have met with Mayor-President Broome and Darrel Gissel, the Chief Administrator Officer to the Office of the Mayor-President, to monitor the circumstances at the jail under the current COVID-19 pandemic.41
Communications included daily updates on the jail population and health conditions inside of the jail.42 Once restrictions and closures began to take form, the prosecuting agencies worked with the Public Defender’s Office and the judiciary to reach consensus on which defendants could be seen for detention hearings and have warrants recalled so detainees could be safely released back into the community under these extraordinary circumstances.43
36 Affidavit of Darrel Gissel, Exhibit 3. 37 Affidavit of Hillar Moore, Exhibit 5. 38 Affidavit of Darrel Gissel, Exhibit 3.. 39 Affidavit of Darrel Gissel, Exhibit 3. 40 Affidavit of Darrel Gissel, Exhibit 3. 41 Affidavit of Darrel Gissel, Exhibit 3. 42 Affidavit of Hillar Moore, Exhibit 5. 43 Affidavit of Brandi Littles-Lawrence, Exhibit 6.
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City Court staff researched the East Baton Rouge Prison records to obtain the names of those individuals who had bench warrants in Baton Rouge City Court and prepared a weekly docket for “Jail Call-Out” Courtroom.44
City Court Judges also handled Probable Cause hearings in those limited situations where an individual was arrested for Driving While Intoxicated, Domestic Abuse Battery, or related offenses, as BRPD made efforts to only arrest and book individuals in those limited situations.45
The City/Parish has been in contact with representatives from various, local groups and organizations to provide updates and information related to the circumstances of the jail under the current COVID-19 pandemic, including East Baton Rouge Prison Reform Coalition, P.R.E.A.C.H., and Voice of the Experienced (Baton Rouge and New Orleans Chapters).46
Furthermore, the City/Parish has taken the following measures to ensure communication and coordination with information any and all developments related to COVID-19:
 keep all parties in contact with one another and apprised of any and all developments related to the novel coronavirus.47
 All medical copays normally placed upon the individual in the jail have been suspended.48
 At all times pertinent herein, CorrectHealth has provided medical services at the jail during the COVID-19 pandemic, and the Mayor’s Office is in contact with CorrectHealth for any and all updates.49
 As a part of CorrectHealth’s day-to-day operation of medical services at the jail, CorrectHealth has adopted the guidelines set forth by the Center for Disease
44 Affidavit of Brandi Littles-Lawrence, Exhibit 6. 45 Affidavit of Brandi Littles-Lawrence, Exhibit 6. 46 Affidavit of Darrel Gissel, Exhibit 3. 47 Affidavit of Darrel Gissel, Exhibit 3. 48 Affidavit of Darrel Gissel, Exhibit 3. 49 Affidavit of Darrel Gissel, Exhibit 3.
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Control (“CDC”), Louisiana Department of Health (“LDH”), and the Louisiana Department of Corrections (“DOC”).50  CorrectHealth is in contact with Dr. Dan Godbee, EMS Medical Director for the City/Parish and Warden Dennis Grimes of the East Baton Rouge Parish Sheriff’s Office for collaboration in response to COVID-19.51  The jail is in contact with the LDH regarding all infectious disease at the EBRPP, not limited to COVID-19.52
It was agreed universally that the open lines of communication among criminal justice agencies and advocacy groups proved invaluable during this time.53
D. COVID-19 Jail Statistics As of June 3, 2020, there are six (6) positive cases of COVID-19 in quarantine in the jail.54 The daily count of inmates in the jail as of June 2, 2019 was 1,347 total inmates made up of 1168 males and 179 females. Extensive efforts of the judiciary of the 19th JDC and Baton Rouge City Court, the District Attorney, the City Prosecutor, Public Defender’s Office, and local police agencies reduced the jail population in an effort against the novel COVID-19 pandemic. The daily count of inmates on June 2, 2020, was 1,062 total inmates made up of 976 males and 86 females.55 The jail has a capacity of approximately 1,420 inmates, split between bed space for 184 females and 1,236 males. The focus of plaintiffs’ motion is the inmates that are currently in the jail facility. There are approximately 233 Louisiana Department of Corrections (“DOC”) inmates assigned to East Baton Rouge Parish’s Work Release Facility, which is managed by Louisiana Workforce, LLC.
50 Affidavit of Darrel Gissel, Exhibit 3. 51 Affidavit of Darrel Gissel, Exhibit 3. 52 Id. 53 Id. 54 Exhibit 4. 55 Id.
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This facility is separate, and none of these individuals are housed at the jail facility, therefore, the work release facility, is not at issue before the Court. (Warden affidavit).
E. The Plaintiffs The three plaintiffs before the Court on this TRO have identified themselves as medically vulnerable and because of their medical vulnerability are seeking a TRO to be released from the jail. Two of the plaintiffs have pled guilty to crimes: Clifton Belton and Cedric Franklin. Both these plaintiffs are currently serving time related to those convictions. One plaintiff, Willie Shepard is a pre-trial detainee. All three plaintiffs have previously tested positive for COVID-19 and have since recovered from COVID-19. Clifton Belton is a post-conviction inmate. He was booked into the jail on December 9, 2018 for Retail Theft under La. R.S. 14:67, Resisting an Officer La. R.S. 14:108, and three Fugitive from Justice charges; (1) Fugitive from Justice BRPD file # 26611, (2) Fugitive from Justice West Baton Rouge file #26611, and (3) Fugitive from Justice Livingston file #26611.56 In the Nineteenth Judicial District (“19th JDC”), before Judge Johnson, he plead guilty to one count of La. R.S. 14:67 Felony Theft in Docket #07-18-0435 on September 25, 2019.57 He agreed to a sentence of four years at hard labor to run concurrently with any and all other time. This case was set for sentencing on April 15, 2020, and, at defense counsel’s request, it was reset to July 20, 2020 while Mr. Belton resolves his pending cases in other parishes. In West Baton Rouge Parish, he has charges of: (1) La. R.S. 14:67, Felony Theft;58 (2) La. R.S. 14:67, Misdemeanor Theft;59 and (3) La. R.S. 14:68, Simple Robbery.60 Belton’s next court date is June 22, 2020.61 In Livingston Parish, Belton has an
56 See Clifton Belton, Jr.’s Booking Records, attached as Exhibit ___ (to be supplemental upon receipt). 57 See Minutes attached as Exhibit __ (to be supplemental upon receipt). 58 See Clifton Belton Jr.’s WBR Docket #170116, attached as Exhibit __ (to be supplemental upon receipt). 59 See Clifton Belton Jr.’s WBR Docket #180117, attached as Exhibit __ (to be supplemental upon receipt). 60 See Clifton Belton Jr.’s WBR Docket #190618, attached as Exhibit __(to be supplemental upon receipt). 61 See Clifton Belton Jr.’s WBR Docket / Minutes #170116, attached as Exhibit __(to be supplemental upon receipt).
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outstanding affidavit warrant for simple burglary, which he has not yet been booked.62 He also is
facing charges in Ascension Parish on La. R.S. 14:27 / La. R.S. 14: 67, Attempted Felony Theft.63
His next court date is July 21, 2020.64
Cedric Franklin is also post-conviction inmate. Franklin was booked into the jail for
violations of La. R.S. 14:43, Misdemeanor Sexual Battery and La R.S. 40:966(C)(2) & (C)(23),
Felony Possession of Ecstasy.65 Franklin was arrested and was booked into the jail on January 6,
2020.66 On January 6, 2020 before Judge Trudy White, in the 19th JDC, he plead guilty under
Docket #07-17-0073 to the amended charge of misdemeanor sexual battery.67 Franklin was
sentenced to 6 months at parish prison.68 On that same day and before Judge Trudy White, Franklin
plead guilty to possession of a schedule 1 controlled substance, specifically Ecstasy, under Docket
#03-17-0501.69 Franklin was sentenced to two (2) years at the jail with both sentences running
concurrently.70 Franklin is scheduled for release on January 2, 2021.71
Willie Shepherd is a pretrial detainee. Shepherd was booked into the jail on February 26,
2020 on the following charges; La. R.S. 14:35.3, Domestic Abuse Battery, two counts of La. R.S.
14:43.1, Sexual Battery, La. R.S. 14:38, Simple Assault 14:38, La. R.S. 14:46, False
Imprisonment, and La. R.S. 14:133.2, Misrepresentation During Booking.72 A Bill of Information
in Docket #20-01854 – La. R.S. 14:108, Resisting an Officer, was filed April 22, 2020.73 His Bills
62 See Clifton Belton Jr.’s AVAIS / Affidavit, attached as Exhibit __(to be supplemental upon receipt). 63 See Clifton Belton Jr.’s Ascension Parish Docket #40477, attached as Exhibit __(to be supplemental upon receipt). 64 See Clifton Belton Jr.’s Ascension Parish Docket / Minutes #40477, attached as Exhibit __(to be supplemental upon receipt). 65 See Cedric Franklin’s Booking Records, attached as Exhibit __(to be supplemental upon receipt). 66 Id. 67 See Cedric Franklin’s Docket 07-17-0073, attached as Exhibit __(to be supplemental upon receipt). 68 Id. 69 See Cedric Franklin’s Docket 03-17-0501, attached as Exhibit __(to be supplemental upon receipt). 70 Id. 71 See Exhibit __(to be supplemental upon receipt). 72 See Willie Shepherd’s Booking Records, attached as Exhibit __(to be supplemental upon receipt). 73 See Willie Shepherd’s Bill of Information on Docket #20-01854, attached as Exhibit (to be supplemental upon receipt).
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of Information for Dockets #20-01855, La. R.S. 14:35.3, Domestic Abuse Battery, La. R.S. 14:46,
False Imprisonment, and La. R.S. 14:133.2, Misrepresentation During Booking;74 and Docket #20-
01856, two counts of La. R.S. 14:43.1, Sexual Battery, were filed on May 14, 2020.75 Currently,
he is scheduled for a status conference on all three of his open dockets on June 24, 2020.76 On
March 4, 2020, his bond was set at $15,000 plus abiding by terms of a Protective Order and
residing with his mother. He was rearrested and booked into EBRPP on March 7, 2020 on the
charge of La. R.S. 14:108, Resisting an Officer.77
III. LEGAL STANDARD Preliminary injunctive relief “is an extraordinary and drastic remedy and should only be
granted when the movant has clearly carried the burden of persuasion.”78 Further, the purpose of
a temporary restraining order is to “preserve the status quo and prevent irreparable harm just so
long as is necessary to hold a hearing, and no longer.”79 The movant seeking injunctive relief “must
satisfy a cumulative burden of proving each of the four elements enumerated before a temporary
restraining order or preliminary injunction can be granted.”80
Specifically, a plaintiff must establish (1) a substantial likelihood of prevailing on the
merits, (2) a substantial threat of irreparable injury if the injunction is not granted, (3) that the
threatened injury outweighs any harm that will result to the non-movant if the injunction is granted,
and (4) that the injunction will not disserve the public interest.81 If a plaintiff fails to meet his
74 See Willie Shepherd’s Bill of Information on Docket #20-01855, attached as Exhibit __. 75 See Willie Shepherd’s Bill of Information on Docket #20-01856, attached as Exhibit __. 76 See Willie Shepherd’s Minutes from Docket #20-01854, attached as Exhibit __. See Willie Shepherd’s Minutes from Docket #20-01855, attached as Exhibit __. See Willie Shepherd’s Minutes from Docket #20-01856, attached as Exhibit __. 77 See Exhibit ___, page 1. 78 Anderson v. Jackson, 556 F.3d 351, 360 (5th Cir. 2009) (quotation marks omitted). 79 RW Development, LLC v. Cuningham Group Architecture, Inc., 2012 WL 3258782, *2 (S.D. Miss. Aug. 8, 2012) (citing Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974)); Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974). 80 Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987). 81 See Canal Authority, 489 F.2d at 572-73.
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burden regarding any of the necessary elements, the Court need not address the other elements necessary for granting a preliminary injunction.82
The requirement of demonstrating a likelihood of success on the merits holds true even where constitutional violations are alleged.83 The Fifth Circuit has explained that a party moving for preliminary injunction must always present a prima facie case “because it is inequitable to temporarily enjoin a party from undertaking activity which [that party] has a clear right to pursue.”84 The Fifth Circuit found “that concern particularly heightened when a federal court is asked to interfere with a state political subdivision’s activity.”85
IV. ARGUMENT A. Plaintiffs Are Unlikely to Succeed on the Merits of Their Claim 1. Plaintiffs do not state cognizable claims under the Fourteenth Amendment and Eighth Amendment a. Habeas petition is improper vehicle As an initial matter, an application for writ of habeas corpus is the appropriate means for a
prisoner to challenge the fact or duration of confinement.86 However, a civil rights suit “is the proper vehicle to attack unconstitutional conditions of confinement and prison procedures.”87 The proper vehicle is a civil rights suit if “a favorable determination ... would not automatically entitle
82 Roho, Inc. v. Marquis, 902 F.2d 356, 361 (5th Cir. 1990). 83 Doe by Doe v. Shenandoah Cty. Sch. Bd., 737 F. Supp. 913, 916 (W.D. Va. 1990), citing, Delaware & H. Ry. Co. v. United Transportation Union, 450 F.2d 603, 619–620 (D.C. Cir.), cert. denied, 403 U.S. 911, 91 S.Ct. 2209, 29 L.Ed.2d 689 (1971). 84 Monumental Task Comm., Inc. v. Chao, 678 F. App’x 250, 252 (5th Cir. 2017), citing Texas v. Seatrain Int’l, S. A., 518 F.2d 175, 180 (5th Cir. 1975). 85 Monumental Task Comm., Inc., 678 F. App’x at 252. 86 Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). 87 Cook v. Texas Dep't of Criminal Justice Trans. Planning Dep't, 37 F.3d 166, 168 (5th Cir.1994).
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[the prisoner] to accelerated release[.]”88 Plaintiffs cannot show any likelihood of success with
regard to their habeas petition.
b. Plaintiffs fail to show violations of Plaintiffs’ Fourteenth Amendment and Eighth Amendment Rights
The Eighth Amendment forbids cruel and unusual punishments. The Supreme Court has
construed this prohibition to include “deliberate indifference to serious medical needs of
prisoners.”89 The Eighth Amendment imposes on prison authorities a duty to protect prisoners.90
The Fifth Circuit in Valentine set forth the following applicable law:
In a constitutional claim alleging deliberate indifference to the conditions of a prisoner’s confinement, the plaintiff must satisfy both the “subjective and objective requirements” of the Eighth Amendment inquiry. Farmer v. Brennan, 511 U.S. 825, 846 (1994). To satisfy the objective requirement, the plaintiff must show an “objectively intolerable risk of harm.” Ibid. To satisfy the subjective requirement, the plaintiff must show that the defendant: “(1) was ‘aware of facts from which the inference could be drawn that a substantial risk of serious harm exists’; (2) subjectively ‘dr[e]w the inference’ that the risk existed; and (3) disregarded the risk.” Cleveland v. Bell, 938 F.3d 672, 676 (5th Cir. 2019) (quoting Farmer, 511 U.S. at 837). The “incidence of diseases or infections, standing alone,” do not “imply unconstitutional confinement conditions, since any densely populated residence may be subject to outbreaks.” Shepherd v. Dallas Cty., 591 F.3d 445, 454 (5th Cir. 2009). Instead, the plaintiff must show a denial of “basic human needs.” Ibid. “Deliberate indifference is an extremely high standard to meet.” Cadena v. El Paso Cty., 946 F.3d 717, 728 (5th Cir. 2020).91
To prove an Eighth Amendment violation, a prisoner must prove that officials acted with
deliberate indifference to a substantial risk of serious harm.92 Deliberate indifference requires a
showing of “subjective recklessness” as used in criminal law.93 This is a subjective standard; it
88 Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir.1995) (per curiam); Peterson v Diaz, 2020 WL 1640008 (E.D. Cal. April 2, 2020)(holding habeas proceedings not appropriate vehicle to raise Eighth Amendment claims related to COVID-19 pandemic). 89 Gibson v. Collier, 920 F.3d 212, 219 (5th Cir.), cert. denied, 140 S. Ct. 653, 205 L. Ed. 2d 384 (2019), citing Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285.. 90 Jason v. Tanner, 938 F.3d 191, 195 (5th Cir. 2019). 91 Valentine at 801. 92 Farmer v. Brennan, 511 U.S. 825, 834 (1994). 93 Id. at 839.
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requires proof of a prison official’s “sufficiently culpable state of mind.”94 “[D]eliberate indifference is a stringent standard of fault,”95 which precludes liability unless a prison official “knows of and disregards an excessive risk to inmate health or safety.”96
To prove an Eighth Amendment violation based on access to healthcare, a prisoner must prove deliberate indifference to his serious medical needs. This is “an extremely high standard to meet,”97 and it “exists wholly independent of an optimal standard of care.”98 This Court has consistently held that “the decision whether to provide additional treatment is a classic example of a matter for medical judgment, which fails to give rise to a deliberate-indifference claim.”99 “Deliberate indifference encompasses only unnecessary and wanton infliction of pain repugnant to the conscience of mankind.”100 To establish liability, the prisoner “must show that the officials refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.”101
A prison official’s mere failure to avoid harm or eliminate a risk does not violate the Eighth Amendment. Liability attaches “only if [an official] knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”102 Actions and decisions that are merely inept, ineffective, or negligent do not constitute deliberate
94 Id. (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). 95 Connick v. Thompson, 563 U.S. 51, 61 (2011). 96 Farmer, 511 U.S. at 837. 97 Domino v. TDCJ, 239 F.3d 752, 756 (5th Cir. 2001), 98 Gobert v. Caldwell, 463 F.3d 339, 349 (5th Cir. 2006) 99 Dyer v. Houston, __ F.3d ___, 2020 WL 1778715, *4 (5th Cir. April 9, 2020) (quoting Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (quotation marks omitted)). 100 McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997). 101 Brauner v. Coody, 793 F.3d 493, 498 (5th Cir. 2015) (quoting Domino, 239 F.3d at 756). 102 Farmer, 511 U.S. at 847.
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indifference.103 And complaints that policies or practices are inadequate to prevent harm—even if true—cannot support liability. Even if harm is not averted, “prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.”104
Here, to the extent that jail officials have inferred a substantial risk to offender safety from COVID-19, they have not been indifferent, let alone deliberately indifferent. As outlined above, the jail took and continues to take extensive measures to protect against COVID-19. These actions mitigate against the substantial risk of harm. The overwhelming evidence establishes that Defendants have implemented detailed policies in response to the threat of COVID-19 and updated those policies to account for new developments. The policies are targeted at preventing the introduction and spread of COVID-19, i.e., the safety and welfare of the individuals at the jail. These policies are a reasonable response to the threat posed by COVID-19. That Plaintiffs find the policies inadequate or insufficient is exactly the kind of “[d]isagreement with medical treatment” the Fifth Circuit held “does not state a claim for Eighth Amendment indifference to medical needs.”105
Again, the Fifth Circuit’s ruling in Valentine is significant. The Fifth Circuit found that the defendants’ general awareness of the dangers posed by COVID-19 was insufficient since the plaintiffs presented no evidence that the defendants subjectively believed that the protective measures they were taking were inadequate.106 The same is true in this case. There is no evidence that the Defendants believe the safeguards they have put in place to mitigate COVID-19 and
103 Thompson v. Upshur Cty., Tex., 245 F.3d 447, 458-59 (5th Cir. 2001) (“[D]eliberate indifference cannot be inferred merely from a negligent or even a grossly negligent response to a substantial risk of serious harm.”). 104 Farmer, 511 U.S. at 845. 105 Gibson v. Collier, 920 F.3d 212, 220 (5th Cir. 2019). 106 Valentine, at p. 8
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protect individuals at the jail are inadequate. Plaintiffs cannot meet their burden of proving a likelihood of success of their claims under the Eight and Fourteenth Amendments.
2. Neither Cedric Franklin nor Willie Shepard have exhausted their remedies under the PLRA
The Prison Litigation Reform Act (the “PLRA”) The PLRA imposes a strict exhaustion requirement: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”107 The PLRA’s exhaustion requirement is intended “to eliminate unwarranted federal court interference with the administration of prisons, and thus seeks to ‘affor[d] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.”108 “There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”109 Mandatory exhaustion statutes like the PLRA foreclose judicial discretion.110
If an inmate fails to properly exhaust, his suit must be dismissed pursuant to section 1997e.111 And failure to exhaust cannot be cured after filing suit. “It is irrelevant whether exhaustion is achieved during the federal proceeding. Pre-filing exhaustion is mandatory, and the case must be dismissed if available administrative remedies were not exhausted.”112 Plaintiffs did
107 42 U.S.C. § 1997e(a); see Jones v. Bock, 549 U.S. 199, 218 (2007). 108 Woodford v. Ngo, 548 U.S. 81, 93 (2006) (footnote omitted) (quoting Porter v. Nussle, 534 U.S. 516, 525 (2002)). 109 Jones, 549 U.S. at 211. 110 Ross v. Blake, 136 S. Ct. 1850, 1862 (2016) (citing McNeil v. United States, 508 U.S. 106, 111 (1993) (“We are not free to rewrite the statutory text” when Congress has strictly “bar[red] claimants from bringing suit in federal court until they have exhausted their administrative remedies”)). 111 See Moussazadeh v. Tex. Dep’t of Criminal Justice, 703 F.3d 781, 788 (5th Cir. 2012) (“District courts have no discretion to waive the PLRA’s pre-filing exhaustion requirement”); Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004) (“[A] prisoner must pursue a grievance through both steps for it to be considered exhausted.”). 112 Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) (per curiam).
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not exhaust their administrative remedies before filing suit, nor did they show that administrative remedies were unavailable. As such, the PLRA bars their claims.113
3. The preliminary injunction improperly interferes with the State’s response to a public-health crisis
Even if Plaintiffs were able to show a likely violation of the Constitution, an injunction would be improper because it interferes with Defendants’ effort to manage the public-health crisis caused by COVID-19. The State’s police powers are at their apex during a public-health emergency: “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”114 And judicial review is available only “if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” In re Abbott, 2020 WL 1685929, at *1 (quoting Jacobson, 197 U.S. at 29). This Court emphasized that absent such a clear violation, courts may not second-guess efforts to combat the emergency: “‘[i]t is no part of the function of a court’ to decide which measures are ‘likely to be the most effective for the protection of the public against disease.’” Id. (quoting Jacobson, 197 U.S. at 30). Plaintiffs could not possibly show that Defendants’ efforts to respond to the COVID-19 pandemic have “no real or substantial relation” to the protection of inmates’ health and safety or that Defendants’ policies are “beyond all question, a plain, palpable invasion” of their constitutional rights.115 Even if alternative measures might be
113 In the context of COVID-19 exigencies, the Fifth Circuit has recently made it clear that there is no emergency exception or “interest of justice” exception to the PLRA’s exhaustion requirement. Valentine v. Collier, 2020 WL 1934431, 956 F.3d 797 (5th Cir. Apr. 22, 2020). 114 Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 29 (1905). 115 In re Abbott, 2020 WL 1685929, at *1.
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more effective, that would not justify the exercise of “judicial power to second-guess the state’s policy choices in crafting emergency public health measures.” Id. at *6. The district court’s failure to respect the principles of federalism reflected in Jacobson underscores Plaintiffs’ inability to show a likelihood of success on the merits for purposes of the TRO.
B. The Plaintiffs cannot show a substantial threat of irreparable injury if the injunction is not granted 1. Plaintiffs fail to show the need for urgency.
Plaintiffs cannot show that they will suffer irreparable harm if the injunction is not granted. Plaintiffs’ concerns are based primarily upon speculation and conjecture. The evidence establishes that such an unfounded fear is an insufficient basis to grant injunctive relief. This is particularly true considering the decrease in positive cases, and in particular, that:
 As of June 1, 2020, the jail has only six (6) inmates that have tested positive for COVID-19;116
 only three people have been hospitalized and  there have been zero deaths caused by COVID-19;
2. Plaintiffs’ delay in seeking injunctive relief undermines their claim of irreparable injury.
Because irreparable harm is “the single most important prerequisite for the issuance of a preliminary injunction,”117 any delay by a plaintiff in seeking preliminary relief is a relevant factor when considering whether the plaintiff has met his burden to show irreparable harm. “[T]he failure
116 Exhibit 4. 117 Bell & Howell: Mamiya Co. v. Masel Supply, 719 F.2d 42, 45 (2d Cir. 1983) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure § 2948, at 431 (1973)); accord Citibank, N.A. v. Citytrust & Cititrust Bancorp, Inc., 756 F.2d 273, 275 (2d Cir. 1985); Gidatex, S.r.L. v. Campaniello Imports, Ltd., 13 F. Supp. 2d 417, 419 (S.D.N.Y. 1998).
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to act sooner undercuts the sense of urgency that ordinarily accompanies a motion for preliminary
relief and suggests that there is, in fact, no irreparable injury.”118
3. Plaintiffs fail to show harm Further, contrary to Plaintiffs’ passionate but disingenuous assertions, all three Plaintiffs
seeking immediate release – i.e., the purported representative members of the Medically
Vulnerable Subclass – contracted COVID-19 and have since recovered. Their release, therefore,
is hardly a matter of life and death.
4. The judiciary already released eligible detainees As a result of the Coronavirus (“COVID-19”) pandemic, the City/Parish has taken all
responsive measures available for testing, personal protective equipment (“PPE”), education on
same to protect the citizens of the City/Parish as much as possible.119 Defendants have worked
diligently to address the harms posed by COVID-19 in exceedingly difficult circumstances, with
available information and medical guidance changing on a daily basis.120 An extraordinary,
collaborative effort was made by Baton Rouge community and criminal justice leaders, including
the Mayor, the District Attorney, the Public Defender, the City Prosecutor, and the judiciaries of
the 19th Judicial District Court and Baton Rouge City Court, to effectively balance the need to
118 Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964, 968 (2d Cir. 1995) (internal quotation marks and citation omitted); see also Citibank, 756 F.2d at 276-77 (ten-week delay in seeking an injunction against a trademark infringement “undercuts the sense of urgency” which is the raison d’etre for a preliminary injunction and suggests that no irreparable injury was threatened); Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 903 (7th Cir. 2001) (“Delay in pursuing a preliminary injunction may raise questions regarding the plaintiffs claim that he or she will face irreparable harm if a preliminary injunction is not entered.”); Gonannies, Inc. v. Goupair.Com, Inc., 464 F. Supp. 2d 603, 609 (N.D. Tex. 2006) (“Evidence of an undue delay in bringing suit may be sufficient to rebut the presumption of irreparable harm.”) (citations omitted); Continental Oil Co. v. Crutcher, 434 F. Supp. 464, 471-72 (E.D. La. 1977) (citing “long delay” in filing motion for injunctive relief in denying preliminary injunction); Newdow v. Bush, 355 F. Supp. 2d 265, 292 (D.D.C. 2005) (“An unexcused delay in seeking extraordinary injunctive relief may be grounds for denial because such delay implies a lack of urgency and irreparable harm.”); Fund for Animals v. Frizzell, 530 F.2d 982, 987 (D.C. Cir. 1975) (plaintiffs had waited 44 days until after final regulations were issued although they had notice of a public comment period). 119 Affidavit of Darrel Gissel, Exhibit 3. 120 Affidavit of Darrel Gissel, Exhibit 3.
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continue to detain rightfully held arrestees to ensure the safety for our community versus the public health.121 The benefits of a lower jail population also, in these trying times, protects the safety of the community, arrestees, and law enforcement.122
As a result of these efforts, the jail presently holds a decade-low for both male and female average daily populations.123 Prison Medical provided the Warden and the District Attorney a copy of their "Chronic Care Clinic List" to assist in the release of persons with medical issues.124
Multiple meetings and conferences have taken place with the respective groups comprising the Criminal Justice Coordination Council to achieve this end.125 Namely, Warden Dennis Grimes; Sheriff Sid Gautreaux; CorrectHealth; the City/Parish’s Medical Director of the Department of Emergency Medical Services (“EMS”), Dr. Dan Godbee; and representatives from outside medical teams (i.e. Dr. Catherine O’Neal, Chief of the Infectious Disease Unit at Our Lady of the Lake Regional Medical Center) have met with Mayor-President Broome and Darrel Gissel, the Chief Administrator Officer to the Office of the Mayor-President, to monitor the circumstances at the jail under the current COVID-19 pandemic.126
Communications included daily updates on the jail population and health conditions inside of the jail.127 Once restrictions and closures began to take form, the prosecuting agencies worked with the Public Defender’s Office and the judiciary to reach consensus on which defendants could
121 Affidavit of Darrel Gissel, Exhibit 3. 122 Affidavit of Hillar Moore, Exhibit 5. 123 Affidavit of Darrel Gissel, Exhibit 3. 124 Affidavit of Darrel Gissel, Exhibit 3. 125 Affidavit of Darrel Gissel, Exhibit 3. 126 Affidavit of Darrel Gissel, Exhibit 3. 127 Affidavit of Hillar Moore, Exhibit 3.
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be seen for detention hearings and have warrants recalled so detainees could be safely released back into the community under these extraordinary circumstances.128
C. The Balance of Any Harm and Public Interest Weigh in Favor of Defendants The Plaintiffs cannot show that the threatened injury to Plaintiffs outweighs the threatened harm the injunction may do to Defendants and/or that granting the injunction will not disserve the public interest. When the government is a defendant, the third factor (harm the injunction may do to defendant) and the fourth factor (granting the preliminary injunction will not disserve the public interest) merge into one.129 In Valentine, the court found that the injunctive relief ordered by the district court visited harm upon the State Department of Corrections. The Valentine court found that “it is ‘difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.’ ”130 The court further found that the harm to the state Department of Corrections was “particularly acute” because the injunction “interferes with the rapidly changing and flexible system-wide approach ... used to respond to the pandemic so far.”131 This same harm would ensue if this Court imposed Plaintiffs’ notions of pandemic response on the DOC in this case. The Valentine court further observed that the Department’s “ability to continue to adjust its policies is significantly hampered by the preliminary injunction, which locks in place a set of policies for a crisis that defies fixed approaches.”132
128 Affidavit of Brandi Littles-Lawrence, Exhibit . 129 Nken v. Holder, 556 U.S. 418, 435, 129 S. Ct. 1749, 1762 (2009). 130 Valentine, 956 F. 3d 797, 804 (citing Woodford v. Ngo, 548 U.S. 81, 94, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491–92, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)); see also Missouri v. Jenkins, 495 U.S. 33, 51, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990)). 131 Id. 132 Id. (citing Jacobson v. Massachusetts, 197 U.S. 11, 28–29, 25 S.Ct. 358, 49 L.Ed. 643 (1905); In re Abbott, 954 F.3d 772, –––– (5th Cir. 2020)).
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Courts often find that “evaluation of penological objectives is committed to the considered judgment of prison administrators, who are actually charged with and trained in the running of the particular institution under examination.”133 In addition, the Supreme Court has acknowledged that “courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.”134 “Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint.” Id. Moreover, when a state penal system is involved, the federal court has an “additional reason to accord deference to the appropriate prison authorities.” Id. These longstanding principles of separation of powers and deference must not be ignored, especially in the current crisis. The Plaintiffs’ have failed to show that the extraordinary relief they seek is not warranted.
Similarly, this Court finds that an injunction would raise serious potential risk of harm to the Defendants because it would hamstring the DOC “from responding to the COVID-19 threat without a permission slip from the district court.”106 For the same reasoning and analysis articulated by the Fifth Circuit, the Court finds that the second factor weighs in Defendants’ favor. Plaintiffs have failed to demonstrate that the requested injunction will not cause irreparable harm to Defendants and potentially to inmates and pre-trial detainees throughout the State of Louisiana.
Individual states are vested with police powers, which allow states to enact reasonable regulations established to protect the public health and public safety of its citizens.135 States may
133 O’Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S. Ct. 2400, 2404 (1987) (internal citations omitted). 134 Turner v. Safley, 482 U.S. 78, 84-85; 107 S.Ct. 2254, 2259 (1987). 135 Jacobson v. Massachusetts, 197 U.S. 11, 25, 25 S.Ct. 358, 361 (1905).
27

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also invest local bodies—such as the Department of Health or the Department of Corrections— with the authority to carry out such regulations and safeguard public health and safety.136
Response to infectious disease outbreaks and epidemics has long been recognized as a function of the state’s police power, and federal courts should not intervene in the state’s response unless the response is deemed to be arbitrary or in violation of clearly established Constitutional law.137 Indeed, the Supreme Court held that to intervene in the state’s disease control measures
would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the case. We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.138
V. CONCLUSION Plaintiffs have not shown a likelihood of success on the merits of any claim presented in
their Motion for Temporary Restraining Order. Plaintiffs have not demonstrated a violation of any constitutional right. The City/Parish adopts and re-asserts the arguments set forth in Warden Grimes’ and Sheriff Gautreaux’ Opposition to the Temporary Restraining Order as if set forth fully herein. Plaintiffs have failed to carry their burden of demonstrating they burden and accordingly, the City/Parish respectfully requests that Plaintiffs’ Motion for TRO be denied.
136Id. 137 Morgan’s La. & T.R. & S.S. v. Bd. of Health of State of La., 118 U.S. 455, 464-65, 6 S. Ct. 1114, 1118-19 (1886); Jacobson, 197 U.S. at 28, 25 S. Ct. at 361; Hickox v. Christie, 205 F. Supp. 3d 579, 594 (D.N.J. 2016). 138 Jacobson, 197 U.S. at 28; 25 S. Ct. at 362.
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RESPECTFULLY SUBMITTED:

Attorneys for the City/Parish:

/s/ Sarah S. Monsour

_____

Anderson O. “Andy” Dotson, III, Bar No. 26865 Parish Attorney, City of Baton Rouge/East
Baton Rouge Parish Michael Schillage, Bar No. 35554 Courtney Humphrey, Bar No. 30818 Sarah S. Monsour, Bar No. 30957 OFFICE OF THE PARISH ATTORNEY 222 St. Louis Street, 9th Floor Baton Rouge, LA 70802 Telephone: (225) 389-3114 Facsimile: (225) 389-8736 Email: adotson@brla.gov Email: chumphrey@brla.gov Email: mschillage@brla.gov Email: ssmonsour@brla.gov

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Opposition to Motion for Temporary Restraining Order and Preliminary Injunction was this date electronically filed with the Clerk of Court using the Court’s CM/ECF system. Notice of this filing will be sent to all counsel of record by operation of the Court’s electronic filing system.
Baton Rouge, Louisiana this 5th day of June 2020.

/s/

Sarah S. Monsour____

SARAH S. MONSOUR

29

 
 Case 3:20-cv-00278-BAJ-SDJ Document 5-3 05/27/20 Page 1 of 55

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

CLIFTON BELTON, JR., JERRY BRADLEY, CEDRIC FRANKLIN, CHRISTOPHER ROGERS, JOSEPH WILLIAMS, WILLIE SHEPHERD, DEVONTE STEWART, CEDRIC SPEARS, DEMOND HARRIS, and FORREST HARDY, individually and on behalf of all others similarly situated,

Plaintiffs,

Case No. 3:20-cv-000278-BAJ-SDJ

v.

SHERIFF SID GAUTREAUX, in his official capacity as Sheriff of East Baton Rouge; LT. COL. DENNIS GRIMES, in his official capacity as Warden of the East Baton Rouge Parish Prison; CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE,

Defendants.

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

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TABLE OF CONTENTS Page
TABLE OF AUTHORITIES ......................................................................................................... iv INTRODUCTION .......................................................................................................................... 1 BACKGROUND AND FACTS ..................................................................................................... 2
I. The COVID-19 Crisis is a Health Crisis Unmatched in Living Memory............... 2 II. A COVID-19 Jail Outbreak is an Extreme Threat to Public Health....................... 4 III. Defendants Are Not Able to–and at Present–Cannot Take Necessary Steps to
Prevent A Widespread Outbreak in the Jail ............................................................ 6 A. Social Distancing is Impossible at the Jail and Sanitation and Hygiene is
Dangerously Insufficient............................................................................. 7 B. Defendants’ testing and identification of COVID-19 has been
inadequate ................................................................................................... 8 C. Defendants maintain dangerous conditions at the Jail ................................ 9 D. Defendants’ use of “lockdown” to treat detainees with COVID-19......... 11 E. Defendants in lockdown lack access to basic medical services................ 12 F. Defendants do not provide basic personal hygiene supplies or sufficient
personal protective equipment to detainees in response to COVID-19 .... 15 G. Defendants fail to provide adequate and timely medical care. ................. 16
1. Defendants’ medical procedures are inadequate and have been for years. ............................................................................................. 16
2. Defendants ignore and retaliate against detainees for filing grievances concerning the lack of medical care or unsanitary conditions of confinement............................................................. 18
H. Defendants’ failure to control the COVID-19 outbreak and use of punitive solitary confinement threatens the mental health and safety of all detainees.................................................................................................... 19
I. Defendants fail to provide information about COVID-19 and its spread ....................................................................................................... 20
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J. Expert Medical Opinion Demonstrates that Release from Detention is the Only Remedial Measure that Will Protect Medically Vulnerable Detainees ................................................................................................... 21
ARGUMENT ................................................................................................................................ 23 I. SUBCLASS MEMBERS WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF A TRO MANDATING THEIR RELEASE ................................ 25 II. SUBCLASS MEMBERS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIMS................................................................................................... 27 A. Subclass Members Who Are Pretrial Are Subject to Unreasonable, Punitive Conditions of Confinement in Violation of the Fourteenth Amendment............................................................................................... 29 B. Under a Deliberate Indifference Standard, Post-Conviction Subclass Members’ Eighth Amendment Rights Are Being Violated ...................... 32 1. Plaintiffs are objectively at a substantial risk of serious harm...... 33 2. Defendants have acted and are continuing to act with subjective indifference towards Plaintiffs’ substantial risk of harm .............. 33 III. THE PUBLIC INTEREST AND BALANCE OF EQUITIES WEIGH HEAVILY IN PLAINTIFFS’ FAVOR ................................................................................... 38 IV. IMMEDIATE RELEASE IS OF MEDICALLY VULNERABLE SUBCLASS MEMBERS IS THE ONLY EFFECTIVE REMEDY FOR PLAINTIFFS’ UNLAWFUL DETENTION, WHICH THE COURT HAS AMPLE AUTHORITY TO ORDER .................................................................................. 39 V. THE COURT SHOULD NOT REQUIRE PLAINTIFFS TO PROVIDE SECURITY PRIOR TO ISSUING A TEMPORARY RESTRAINING ORDER ................................................................................................................. 41
CONCLUSION ..............................................................................................................................42
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TABLE OF AUTHORITIES
Page(s)
CASES:
In re Bahadur, No. EP-19-CV-00357-DCG, 2020 U.S. Dist. LEXIS 33455 (W.D. Tex. Feb. 27, 2020) ..................................................................................................................................25
Bell v. Wolfish, 441 U.S. 520 (1979)...........................................................................................................28, 29
Boumediene v. Bush, 553 U.S. 723 (2008).................................................................................................................41
Brown v. Plata, 563 U.S. 493 (2011).................................................................................................................41
Cameron v. Bouchard, -- F. Supp.3d --, 2020 WL 2569868 (E.D. Mich. May 21, 2020)............................................37
Cameron v. Bouchard, No. 20-cv-10949, 2020 WL 1929876 (E.D. Mich. Apr. 17, 2020) .........................................27
Campos v. I.N.S., 70 F. Supp. 2d 1296 (S.D. Fla. 1998) ......................................................................................41
Castillo v. Barr, -- F. Supp. 3d --, CV 20-00605 TJH, 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020) ........................................................................................................................................27
Chambers v. Coventry Health Care of Louisiana, Inc., 318 F. Supp. 2d 382 (E.D. La. 2004) .......................................................................................25
City of Atlanta v. Metro. Atlanta Rapid Transit Auth., 636 F.2d 1084 (5th Cir. Unit B Feb. 13, 1981)........................................................................41
City of Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983)...........................................................................................................27, 28
Cohen v. Coahoma Co., 805 F. Supp. 398 (N.D. Miss. 1992) ........................................................................................38
Daniels Health Scis., L.L.C. v. Vascular Health Scis. L.L.C., 710 F.3d 579 (5th Cir. 2013) ...................................................................................................25
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189 (1989).................................................................................................................28
iv

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DSC Commc’ns Corp. v. DGI Techs., Inc., 81 F.3d 597 (5th Cir.1996) ......................................................................................................25
Duran v. Elrod, 713 F.2d 292 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984)..........................................41
Duvall v. Dallas Cty. Tex., 631 F.3d 203 (5th Cir. 2011) ...................................................................................................30
El Paso Cty., Texas v. Trump, 407 F. Supp. 3d 655 (W.D. Tex. 2019)....................................................................................38
Elrod v. Burns, 427 U.S. 347 (1976).................................................................................................................27
Estelle v. Gamble, 429 U.S. 97 (1976)...................................................................................................................27
Farmer v. Brennan, 511 U.S. 825 (1994).........................................................................................27, 32, 33, 34, 37
Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) .................................................................................................34
Gates v. Cook, 376 F.3d 323 (5th Cir. 2004) ...................................................................................................34
Hare v. City of Corinth, Miss., 74 F.3d 633 (5th Cir. 1996) .........................................................................................28, 29, 32
Harris v. Nelson, 394 U.S. 286 (1969).................................................................................................................39
Harris v. Nelson, 395 U.S. 286 (1969).................................................................................................................41
Helling v. McKinney, 509 U.S. 25 (1993).................................................................................................25, 33, 34, 35
Hilton v. Braunskill, 481 U.S. 770 (1987).................................................................................................................41
Honshul v. Foti, No. 94-30723, 1995 WL 153425 (5th Cir. Mar. 30, 1995)......................................................34
Hope v. Pelzer, 536 U.S. 730 (2002).................................................................................................................34
v

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Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274 (5th Cir. 1996) .....................................................................................................38
Johnson v. Epps, 479 Fed. App’x 583 (5th Cir. 2012) ........................................................................................33
Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996).......................................................................................................33
Jones ex rel. Varden, No. 2:15cv34-MHT, 2015 WL 5387219 (M.D. Ala. Sept. 14, 2015) .....................................31
Jones v. Texas Dep’t of Crim. Justice, 880 F.3d 756 (5th Cir. 2018) ...................................................................................................34
Lake Charles Diesel, Inc. v. General Motors Corp, 328 F.3d 192 (5th Cir. 2003) ...................................................................................................24
Malam v. Adducci, -- F. Supp. 3d --, 2020 WL 1672662 (E.D. Mich. Apr. 5, 2020) .......................................22, 40
Mobile Cty. Jail Inmates v. Purvis, 581 F. Supp. 222 (S.D. Ala. 1984)...........................................................................................41
Monumental Task Comm., Inc. v. Foxx, 157 F. Supp. 3d 573 (E.D. La. 2016), aff’d sub nom. Monumental Task Comm., Inc. v. Chao, 678 F. App’x 250 (5th Cir. 2017) .........................................................25
New Orleans Home for Incurables Inc. v. Greenstein, 911 F. Supp 386 (E.D. LA 2012).............................................................................................41
Nken v. Holder, 556 U.S. 418 (2009).................................................................................................................38
Palmer v. Johnson, 193 F.3d 346 (5th Cir. 1999) .............................................................................................28, 32
Pierce v. City of Velda City, 4:15-CV-570-HEA, 2015 WL 10013006 (E.D. Mo. June 3, 2015).........................................31
Pierre v. United States, 525 F.2d 933 (5th Cir. 1976) ...................................................................................................40
Poree v. Collins, 866 F.3d 235 (5th Cir. 2017) ...................................................................................................40
Powell v. City of St. Ann, No. 4:15-cv-840-RWS (E.D. Mo. 2015)..................................................................................31
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Schultz v. Alabama, 330 F. Supp. 3d 1344 (N.D. Ala. 2018) ...................................................................................41
Shepherd v. Dallas Cty., 591 F.3d 445 (5th Cir. 2009) ...................................................................................................29
Thakker v. Doll, -- F. Supp. --, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020)...................................................22
United States v. Garlock, No. 18-Cr-00418, 2020 WL 1439980 (N.D. Cal. Mar. 25, 2020) ...........................................27
United States v. Stephens, -- F. Supp. 3d --, No. 15-CR-95, 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020) ..........................................................................................................................................6
Unknown Parties v. Johnson, No. CV- 15-00250-TUC, 2016 WL 8188563 (D. Ariz. No. 18, 2016), aff’d sub nom Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017) ...............................................................26
Vazquez-Berrera v. Wolf, No. 20-cv-1241, 2020 WL 1904497 (S.D. Tex. Apr. 17, 2020)..................................26, 39, 40
Wilson v. Seiter, 501 U.S. 294 (1991).................................................................................................................34
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008).....................................................................................................................24
Youngberg v. Romeo, 457 U.S. 307 (1982).................................................................................................................28
Zhang v. Barr, No. ED CV 20-00331-AB, 2020 WL 1502607 (C.D. Cal. Mar. 27, 2020) .............................27
STATUTES: 18 U.S.C. § 3142(c)(2)...................................................................................................................31 28 U.S.C. § 2241..............................................................................................................................2 28 U.S.C. § 2243......................................................................................................................39, 41 42 U.S.C. § 1983..............................................................................................................................2 D.C. Code § 23-1321 .....................................................................................................................31
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OTHER AUTHORITIES:
ACLU Sues Louisiana Prison After 5 COVID-19 Deaths Reported, Democracy Now (Apr. 7, 2020), https://www.democracynow.org/2020/4/7/headlines/aclu_sues_louisiana_pris on_after_5_covid_19_deaths_reported ....................................................................................26
AMA, AHA, ANA: #StayHome to confront COVID-19, Am. Medical Ass’n (Mar. 24, 2020), https://www.ama-assn.org/press-center/press-releases/ama-aha-anastayhome-confront-covid-19..............................................................................................22, 36
Chief Justice Bernette Joshua Johnson, Letter to the Louisiana District Judges (Apr. 2, 2020) https://www.lasc.org/COVID19/2020-04-02-LASCChiefLetterReCOVID-19andjailpopulation.pdf; .....................................................................23
Coronavirus – What Social Distancing Means, Am. Red Cross (Apr. 14, 2020), https://www.redcross.org/about-us/news-and-events/news/2020/coronaviruswhat-social-distancing-means.html ...................................................................................22, 36
COVID-19, La. Dep’t of Health (May 26, 2020), http://ldh.la.gov/Coronavirus/ ...........................3
Mean Crepeau, Cook County Jail Drops Below 6,000 Inmates to Lowest Level in Decades, Chi. Trib., (Dec. 22, 2017) http://www.chicagotribune.com/news/local/breaking/ct-met-cook-county-jailunder-6000-inmates-20171221-story.html ..............................................................................31
Ctrs. for Disease Control & Prevention, Coronavirus 2019: Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited May 26, 2020). .......................................................................................................2
Ctrs. for Disease Control & Prevention, Correctional and Detention Facilities, (May 26, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/index.html...................................................................35
Ctrs. for Disease Control & Prevention, How to Protect Yourself & Others, (Apr. 13, 2020) ............................................................................................................................22, 36
Ctrs. for Disease Control & Prevention, Social Distancing, Quarantine, and Isolation, (Apr. 4, 2020), https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/social-distancing.html ..............................................................22, 36
Ctrs. for Disease Control & Prevention, When and How to Wash Your Hands, https://www.cdc.gov/handwashing/when-how-handwashing.html (last visited May 26, 2020) ..........................................................................................................................15
Executive Order 2020-27 (Mar. 13, 2020), https://gov.louisiana.gov/assets/ExecutiveOrders/27-JBE-2020-COVID19.pdf .......................................................................................................................................35
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Executive Order (May 15, 2020), https://gov.louisiana.gov/assets/Proclamations/2020/58-JBE-2020.pdf ..................................25
Executive Order (May 15, 2020), https://gov.louisiana.gov/assets/Proclamations/2020/58-JBE-2020.pdf ..................................35
Fifteen Days to Slow the Spread (Mar. 16, 2020), https://www.whitehouse.gov/articles/15-days-slow-spread/ .....................................................2
Sheri Fink, White House Takes New Line After Dire Report on Death Toll, N.Y. Times (Mar. 16, 2020), https://www.nytimes.com/2020/03/16/us/coronavirusfatality-rate-white-house.html. ...................................................................................................3
Anna Flagg & Joseph Neff, Why Jails Are So Important in the Fight Against Coronavirus, N.Y. Times (Mar. 31, 2020), https://nyti.ms/3aIBHjv; .....................................35
Lisa Freeland, David Patton, & Jon Sands, We’ll See Many More Covid-19 Deaths in Prisons if Barr and Congress Don’t Act Now, Wash. Post (Apr. 6, 2020), https://www.washingtonpost.com/opinions/2020/04/06/covid-19sthreat-prisons-argues-releasing-at-risk-offenders/ .....................................................................3
General Order No. 18.8A- Procedures for Bail Hearings and Pretrial Release, http://www.cookcountycourt.org/Manage/DivisionOrders/ViewDivisionOrder /tabid/298/ArticleId/2562/GENERAL-ORDER-NO-18-8A-Procedures-forBail-Hearings-and-Pretrial-Release.aspx .................................................................................31
Stuart Grassian, Psychopathological Effects of Solitary Confinement, Am. J. of Psychiatry 140 (1983) ..............................................................................................................20
Craig Haney, Infamous Punishment: The Psychological Effects of Isolation, 8 Nat’l Prison Project Journal 3 (1993) ......................................................................................20
Lael Henterly, When Bail Is Set, the Rich Walk and the Poor Go to Jail, Seattle Weekly Times, (Aug. 23, 2016), http://www.seattleweekly.com/news/whenbail-is-set-the-rich-walk-and-the-poor-go-to-jail/..............................................................30, 31
How Do I Prevent and Prepare For COVID-19?, Fla. Dep’t of Health (Apr. 24, 2020), https://floridahealthcovid19.gov/prevention/ ...............................................................22
La. Dep’t of Health, http://ldh.la.gov/index.cfm/page/3938#spread (last visited May 26, 2020) ..........................................................................................................................36
Teresa Mathew, More Than 40 People Have Died in Custody of the East Baton Rouge Jail. Will Voters Oust the Sheriff?, The Appeal (Oct. 9, 2019), https://theappeal.org/more-than-40-people-have-died-in-custody-of-the-eastbaton-rouge-jail-will-voters-send-the-sheriff-packing/ .............................................................6
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Jeffrey Metzner & Jamie Fellner, Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics, 38 J. of the Academy of Psychiatry and Law 104 (2010), http://www.hrw.org/sites/default/files/related_material/Solitary%20Confinem ent%20and%20 Mental%20Illness%20in%20US%20Prisons.pdf..........................................20
Brentin Mock, How New Jersey in Leading the Post-Bail Revolution, CityLab, (Nov. 2, 2017) https://www.citylab.com/equity/2017/11/how-new-jersey-isleading-the-post-bail-revolution/544691/. ...............................................................................31
David Mills & Emily Galvin-Almanza, As Many as 100,000 Incarcerated People in Our Prisons Will Die from the Coronavirus, Unless the US Acts Now, Bus. Insider (Apr. 2, 2020), https://www.businessinsider.com/failure-to-releaseprisoners-is-condemning-thousands-to-death-2020-4 .............................................................35
Melissa Neal, Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail, Justice Policy Institute (2012), http://www.justicepolicy.org/uploads/justicepolicy/documents/bailfail.pdf ...........................32
New Model Shows COVID-19 Death Toll is 100,000 Higher Than Current Projections (Apr. 22, 2020), https://www.aclu.org/press-releases/new-modelshows-covid-19-death-toll-100000-higher-current-projections ...............................................38
NYSDOH COVID-19 Tracker, N.Y. State Dep’t of Health, https://covid19tracker.health.ny.gov/ (last visited May 26, 2020) ..........................................37
Udi Ofer & Lucia Tian, New Model Shows Reducing Jail Population will Lower COVID-19 Death Toll for All of Us, ACLU (Apr. 22, 2020), https://www.aclu.org/news/smart-justice/new-model-shows-reducing-jailpopulation-will-lower-covid-19-death-toll-for-all-of-us/ ..........................................................3
Oregon Knowledge Bank, http://okb.oregon.gov/portfolio-item/auto-notification/......................30
Lizzie Presser, A Medical Worker Describes Terrifying Lung Failure From COVID-19 — Even in His Young Patients, ProPublica (Mar. 21, 2020), https://www.propublica.org/article/a-medical-worker-describes--terrifyinglung-failure-from-covid19-even-in-his-young-patients .............................................................3
Jan Ransom & Alan Feuer, We’re Left for Dead: Fears of Virus Catastrophe at Rikers Jail, N.Y. Times (Mar. 30, 2020) ...............................................................................4, 5
Rules Order, Maryland Court of Appeals, http://mdcourts.gov/rules/rodocs/ro192.pdf .............................................................................31
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Lea Skene and Jacqueline DeRoertis, East Baton Rouge Sheriff: It’s Only a Matter of Time Before Coronavirus Arrives in Jail, The Advocate (Mar. 17, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_be4301c 6-6887-11ea-b794-ab2c5dcccad8.html ....................................................................................35
Lea Skene, Coronavirus Hits Louisiana Prisons: Medical Director, Head Warden, First State Inmate Die, The Advocate (Apr. 20, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_697c5eb 6-8354-11ea-a205-9726a420e972.html .....................................................................................5
Lea Skene, East Baton Rouge Deputy — ‘A Dedicated Public Servant’ — Dies from Coronavirus, Sheriff Says, The Advocate (Apr. 5, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_27ecdca c-7759-11ea-9ab3-e72613b104ed.html .............................................................................35, 36
Lea Skene, Officials Close Three Wings at Aging East Baton Rouge Prison Because of Safety Concerns, The Advocate (Dec. 31, 2018), https://www.theadvocate.com/baton_rouge/news/article_56230150-031511e9-b84f-97327cf57814.html ..........................................................................................11, 16
Peter Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature, in Michael Tonry (Ed.), Crime and Justice (2006) ...........................................................................................................................20
St. Louis Univ., “Ticking Time Bomb,” Prisons Unprepared For Flu Pandemic, ScienceDaily (2006), https://www.sciencedaily.com/releases/2006/09/060915012301.htm .......................................5
Asher Stockler, More Than 700 People Have Tested Positive for Coronavirus on Rikers Island, Including Over 440 Staff, Newsweek (Apr. 8, 2020), https://www.newsweek.com/rikers-island-covid-19-new-york-city-1496872 ..........................5
Javonti Thomas, Louisiana Chief Justice calls for reduced jail populations to combat COVID-19 outbreak, KALB (Apr. 3, 2020) https://www.kalb.com/content/news/Louisiana-Chief-Justice-calls-forreduced-jail-populations- to-avoid-COVID-19-outbreak--569348241.html ...........................23
Hans Toch, Men in Crisis: Human Breakdowns in Prisons, Aldine Publishing Co. (1975) .......................................................................................................................................20
Grace Toohey, East Baton Rouge Parish jails people at rates far higher than New Orleans and Lafayette: Here’s Why, The Advocate (Sept. 14, 2019), https://www.theadvocate.com/baton_rouge/news/courts/article_aa68a582c45b-11e9-8439-a7110c42fa80.html .......................................................................................15
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Alexandra Villarreal, ‘I feel defeated’: inside New Jersey hospitals overwhelmed by Covid-19, The Guardian (Apr. 10, 2020), https://www.theguardian.com/usnews/2020/apr/10/new-jersey-coronavirus-hospital-overwhelmed. ..........................................3
Warden, Medical Director of Louisiana Prison Die After Contracting Coronavirus, State Says, WDSU News (Apr. 20, 2020), https://www.wdsu.com/article/2-new-covid-19-related-deaths-reported-bylouisiana-prison-system-1-inmate-1-employee/32214252 ........................................................6
Ryan Whirty, As COVID-19 cases increase, La. hospitals take care to ensure they remain resourced, The Louisiana Weekly (Apr. 20, 2020), http://www.louisianaweekly.com/as-covid-19-cases-increase-la-hospitalstake-care-to-ensure-they-remain-resourced/ ............................................................................38
WHO Announces COVID-19 Outbreak a Pandemic, World Health Org. (Mar. 12, 2020), http://www.euro.who.int/en/health-topics/healthemergencies/coronavirus-covid-19/news/news/2020/3/who-announces-covid19-outbreak-a-pandemic ............................................................................................................2
Timothy Williams et al., ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars, N.Y. Times (Mar. 30, 2020), https://nyti.ms/2Jmnf4z.........................35
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INTRODUCTION This motion seeks urgent – and modest relief – in light of extraordinary circumstances. An outbreak of the novel coronavirus is occurring in the East Baton Rouge Parish Prison (the “Jail”), where approximately 1,200 detainees are held in life-threatening conditions. Plaintiffs sleep as close as two feet from each other, have limited or no access to hygiene products and cleaning supplies, are not properly quarantined when sick, and do not have access to medical care or equipment anywhere near sufficient in quality or volume to respond to a COVID-19 outbreak. Above all, those detainees who are medically vulnerable to the COVID-19 disease face the highest risk of sickness and death in the Jail. In Louisiana alone, at least 167 Department of Corrections officials have contracted COVID-19, and several high-level officials have died. Because social distancing cannot be meaningfully implemented at the current population levels and the Jail has failed to implement additional basic mitigating measures, this number will multiply exponentially at a rapid pace. See Ex. 9 to Pet. for Writ of Habeas Corpus and Compl. (“Compl.”), Declaration of Dr. Fred Rottnek ¶¶ 30-31 (“Rottnek Decl.”); Ex. 27 to Compl., Declaration of Dr. Susan Hassig ¶ 9 (“Hassig Decl.”). As COVID-19 spreads inside and outside the Jail, time is running out to save Plaintiffs’ lives and to prevent the Jail from becoming an epicenter of community infection. Plaintiffs seek immediate relief for medically-vulnerable detainees, requiring Defendants to immediately release from confinement the subclass of people who, because of age or preexisting medical conditions, are at particularly grave risk of death from COVID-19—a risk that cannot be sufficiently mitigated by safeguards or preventive measures in the Jail. Because the risk of infection, illness and death is both excessive in relation any legitimate government interest and deliberately indifferent to the medical needs of medically vulnerable prisoners, their continued detention violates the Fourteenth
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and Eighth Amendments, respectively. Because continued detention is in violation of the Constitution, this Court should order release of medically vulnerable detainees either through 28 U.S.C. § 2241 or, in the alternative, through 42 U.S.C. § 1983.
This extraordinary moment requires the Court’s immediate intervention. The “horizon of risk for COVID-19 in this facility is a matter of days, not weeks.” Ex. 4 to Compl., Declaration of Dr. Adam Lauring ¶ 45, Russell v. Wayne Cty., No. 20-cv-11094 (E.D. Mich. May 4, 2020), ECF No. 1-15 (“Lauring Decl.”). Immediate relief is also in the public interest. A rapid outbreak within the Jail population would drain the Baton Rouge metropolitan area of limited healthcare resources, including ventilators. For these reasons, and for the reasons explained further below, the Court should grant Plaintiffs’ motion for temporary restraining order.
BACKGROUND AND FACTS I. The COVID-19 Crisis is a Health Crisis Unmatched in Living Memory.
We are in the midst of an unprecedented public health emergency. The number of people infected by COVID-19 has grown exponentially in this country since the first case was identified in January.1 By March 11, 2020, the World Health Organization had classified the outbreak as a global pandemic.2 As of May 26, over 1,600,000 people have been diagnosed with COVID-19 in the United States, with over 97,000 deaths.3 Without effective public health interventions, the Centers for Disease Control and Prevention (“CDC”) project that as many as 2.2 million Americans will die.4
1 See Ctrs. for Disease Control & Prevention, Coronavirus 2019: Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited May 26, 2020). 2 See WHO Announces COVID-19 Outbreak a Pandemic, World Health Org. (Mar. 12, 2020), http://www.euro.who.int/en/health-topics/health-emergencies/coronavirus-covid-19/news/news/2020/3/whoannounces-covid-19-outbreak-a-pandemic; see also Fifteen Days to Slow the Spread, WhiteHouse.gov (Mar. 16, 2020), https://www.whitehouse.gov/articles/15-days-slow-spread/ 3 Coronavirus 2019, supra n. 1. 4 See Sheri Fink, White House Takes New Line After Dire Report on Death Toll, N.Y. Times (Mar. 16, 2020), https://www.nytimes.com/2020/03/16/us/coronavirus-fatality-rate-white-house.html.
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Louisiana has reported over 37,000 cases and over 2,500 deaths, with nearly ten percent of those cases (3,386) in East Baton Rouge Parish.5 This number is sure to rise if conditions in this country’s jails and prisons are not addressed rapidly.6
COVID-19 is a highly contagious virus that can severely damage lung tissue, impede cardiac functions (causing heart failure), and permanently harm other organs. Ex. 11 to Compl., Declaration of Dr. Jonathan Louis Golob ¶¶ 7, 8, Dawson v. Asher, Case No. 2:20-cv-00409-JLRMAT (D. Or. Filed March 16, 2020), ECF No. 5 (“Golob Decl.”). The experience of a severe case of COVID-19 has been compared to “drowning in [one’s] own blood.”7 Approximately 20% of people infected experience life-threatening complications; between 1% and 3.4% die.8 The fatality rate is about ten times higher than a severe seasonal influenza, even in countries with highly effective health care systems.9 Complications manifest at an alarming pace, and the required levels of medical support—which include highly specialized equipment like ventilators as well as an entire team of care providers—have been rapidly overwhelming hospitals nationally and globally.10 There is no vaccine against COVID-19, nor any known medication to prevent or treat infection from the virus. Hassig Decl. ¶ 3. The only effective measure to reduce the risk of infection and thus severe illness or death to vulnerable individuals is to enforce regular social distancing. Id.
5 COVID-19, La. Dep’t of Health (May 26, 2020), http://ldh.la.gov/Coronavirus/. 6 See Lisa Freeland, David Patton, & Jon Sands, We’ll See Many More Covid-19 Deaths in Prisons if Barr and Congress Don’t Act Now, Wash. Post (Apr. 6, 2020), https://www.washingtonpost.com/opinions/2020/04/06/covid19s-threat-prisons-argues-releasing-at-risk-offenders/; Udi Ofer & Lucia Tian, New Model Shows Reducing Jail Population will Lower COVID-19 Death Toll for All of Us, ACLU (Apr. 22, 2020), https://www.aclu.org/news/smartjustice/new-model-shows-reducing-jail-population-will-lower-covid-19-death-toll-for-all-of-us/. 7 See, e.g., Lizzie Presser, A Medical Worker Describes Terrifying Lung Failure From COVID-19 — Even in His Young Patients, ProPublica (Mar. 21, 2020), https://www.propublica.org/article/a-medical-worker-describes-terrifying-lung-failure-from-covid19-even-in-his-young-patients. 8 Id. 9 Id. 10 Alexandra Villarreal, 'I feel defeated': inside New Jersey hospitals overwhelmed by Covid-19, The Guardian (Apr. 10, 2020), https://www.theguardian.com/us-news/2020/apr/10/new-jersey-coronavirus-hospital-overwhelmed.
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Accordingly, public health experts and officials urge that people isolate from others at a minimum distance of six feet, as well as wash their hands frequently, use hand sanitizer, and frequently clean and disinfect high touch surfaces and objects. See, e.g., Rottnek Decl. ¶ 14. These measures are particularly important in jail, a setting that can rapidly become a “public health disaster unfolding before our eyes.”11
Although everyone is at risk of contracting COVID-19, some populations are at higher risk for severe health outcomes. Hassig Decl. ¶ 4. Certain underlying medical conditions—including lung disease, asthma, chronic obstructive pulmonary disease, chronic liver or kidney disease, diabetes, epilepsy, hypertension, compromised immune systems, blood disorders, inherited metabolic disorders, strokes, and pregnancy—increase the risk for individuals of any age. Id. People over the age of sixty-five also face greater chances of serious illness or death. Id. The only known effective measure to mitigate these more extreme risks is to prevent infection in the first instance. Id. ¶ 5. II. A COVID-19 Jail Outbreak is an Extreme Threat to Public Health.
People incarcerated in jail are at heightened risk of infection and death from COVID-19.12 According to public health experts, “the risk posed by COVID-19 in jails and prisons is significantly higher than in the community . . . in terms of risk of transmission, exposure, and harm to individuals who become infected.”13 This is due to a number of factors, including forced proximity of detained individuals, their inability to protect themselves through social distancing,
11 Jan Ransom & Alan Feuer, We’re Left for Dead: Fears of Virus Catastrophe at Rikers Jail, N.Y. Times, (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html. 12 See Ex. 3 to Compl., Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, 2 (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html. 13 See, e.g., Ex. 7 to Compl., Declaration of Dr. Jaimie Meyer ¶ 7, Velesaca v. Wolf, No. 1:20-cv-01803-AKH (S.D.N.Y. Mar. 16, 2020), ECF No. 42 (“Meyer Decl.”).
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lack of medical and hygiene supplies, heavy reliance on outside hospitals for serious medical care, forced labor of incarcerated people in cleaning the facilities with insufficient supplies, constant cycling of people through the jails, and inadequate medical care within jails and prisons. Rottnek Decl. ¶¶ 15-17.
The growing devastation in jails around the country is a harbinger for what has already impacted East Baton Rouge Parish and what it should expect. In New York City, less than a month from the detection of the first case at Rikers Island, 167 detainees, 114 correction staff, and 20 health workers tested positive for COVID-19, and two jail officers had died.14 The COVID-19 infection rate in New York City’s jails is far higher than the rates for the most infected regions of the world.15 In Louisiana, the warden and medical director at the state prison in Avoyelles Parish died of COVID-19-related conditions.16 East Baton Rouge Parish (the “Jail”) is at risk for a similar explosion.
An outbreak cannot be contained inside the Jail. What happens to the people trapped inside this “ticking time bomb”17 affects others who cycle through, including correctional and medical staff. See, e.g., Rottnek Decl. ¶ 57, 64. The outbreak then spreads to staff’s families and the community. Id. Prison outbreaks can quickly overwhelm regional hospitals, making resources unavailable to treat others suffering from COVID-19 or unrelated life-threatening conditions like heart attacks. Id. ¶ 10. As courts have noted, “[t]he more people we crowd into [a] facility, the more we’re increasing
14 See Jan Ransom & Alan Feuer, ‘We’re Left for Dead’: Fears of Virus Catastrophe at Rikers Jail, N.Y. Times (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html. 15 Asher Stockler, More Than 700 People Have Tested Positive for Coronavirus on Rikers Island, Including Over 440 Staff, Newsweek (Apr. 8, 2020), https://www.newsweek.com/rikers-island-covid-19-new-york-city-1496872. 16 Lea Skene, Coronavirus Hits Louisiana Prisons: Medical Director, Head Warden, First State Inmate Die, The Advocate (Apr. 20, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_697c5eb6-835411ea-a205-9726a420e972.html. 17 St. Louis Univ., “Ticking Time Bomb,” Prisons Unprepared For Flu Pandemic, ScienceDaily (2006), https://www.sciencedaily.com/releases/2006/09/060915012301.htm.
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the risk to the community.” United States v. Stephens, __ F. Supp. 3d __, No. 15-CR-95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (internal citation omitted). III. Defendants Are Not Able to–and at Present–Cannot Take Necessary Steps to
Prevent A Widespread Outbreak in the Jail. The Jail is designed to hold nearly 1,600 detainees, the majority of whom are members of the Pre-Trial Subclass. The Jail also holds individuals on work-release, and post-conviction detainees serving sentences with the Department of Corrections. Currently, the jail confines over 1,235 people. Prior to the outbreak of COVID-19, the detainees slept in “lines” designated by letters, which are open spaces with dozens of bunk beds. At the end of each line (or pair of lines) is a shared bathroom and shower facility. The detainees all share “day rooms,” where they socialize, watch television, and speak with their loved ones. Aggressive measures are required to stop the spread of COVID-19 between and within the lines, as an outbreak in one part of the Jail would all but guarantee a spread of the virus to other detainees and staff. See, e.g., Rottnek Decl. ¶ 12. This risk is not hypothetical given the number of Jail staff and detainees who have already contracted COVID-19. Defendants are well aware of COVID-19 and its grave risks,18 but they have failed to undertake the necessary measures to protect detainees from contracting the virus, instead directly placing detainees in harm’s way.19 Indeed, for medically vulnerable detainees, because proper social distancing is not possible in the Jail, there can be no measures to protect them from serious illness or death short of release, as least until there is a vaccine. See infra Section J.
18 See, e.g., Warden, Medical Director of Louisiana Prison Die After Contracting Coronavirus, State Says, WDSU News (Apr. 20, 2020), https://www.wdsu.com/article/2-new-covid-19-related-deaths-reported-by-louisiana-prisonsystem-1-inmate-1-employee/32214252. 19 This is not new for the Jail, which has a lengthy history of detainee deaths. See, e.g., Teresa Mathew, More Than 40 People Have Died in Custody of the East Baton Rouge Jail. Will Voters Oust the Sheriff?, The Appeal (Oct. 9, 2019), https://theappeal.org/more-than-40-people-have-died-in-custody-of-the-east-baton-rouge-jail-will-voterssend-the-sheriff-packing/.
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This is compounded by the parish’s detainee intake procedures. Instead of entering the Jail directly, many detainees are processed through central booking, where they can stay for several days before being transferred to the Jail. Ex. 1, Declaration of Cedric Franklin ¶ 7 (“Franklin Decl.”). The cells in central booking are rarely mopped or cleaned, and detainees get cycled in and out through the day. Id. None of the cells have mattresses or bedding, and the detainees sleep on the wooden benches or concrete floor. Id. ¶ 8. Detainees report that central booking does not test for COVID-19. See id. ¶ 9.
A. Social Distancing is Impossible at the Jail and Sanitation and Hygiene is Dangerously Insufficient.
At current populations, social distancing is impossible throughout the Jail. On the F, J, and Q lines of the Jail, where the detainees normally reside, social distancing is unachievable. Detainees are brought to the day room twice a day for roll call and shift change, during which they must stand next to each other while the staff completes the process, and cannot practice social distancing. Ex. 2, Declaration of Willie Shepherd ¶ 6 (“Shepherd Decl.”); Ex. 3, Declaration of Christopher Lee Rogers ¶ 48 (“Rogers Decl.”). Both roll call and shift change each take one hour to complete. Rogers Decl. ¶48. All of the beds in the Q line, for example, are contained in one open room, spaced about two feet apart. Ex. 4, Declaration of Forrest Hardy ¶¶ 5-6 (“Hardy Decl.); Ex. 5, Declaration of Jerry Bradley ¶ 4 (“Bradley Decl.”). The detainees can easily touch other beds while laying in their own. Shepherd Decl. ¶ 5. Detainees are also permitted to visit the day room at certain hours to socialize and watch television, but it is not designed for social distancing. The benches and tables in the room are bolted to the ground and cannot be moved. Hardy Decl. ¶ 7; Shepherd Decl. ¶ 6. Prior the beginning of April, the detainees were also forced to violate social distancing norms in the dayroom for “pill call” twice a day, during which they received their medication. Ex. 6, Declaration of Cedric Spears ¶ 28 (“Spears Decl.”).
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The guards do not spray surfaces such as the toilet, sink, or door handles as part of their cleaning protocol in the Jail. Rogers Decl. ¶ 22. Plaintiffs are prevented from adequately cleaning any of these surfaces and spaces more frequently themselves because the Jail controls access to basic cleaning supplies, like mops and buckets, and provides them to detainees, at most, twice a day. Rogers Decl. ¶ 25; Ex. 7, Declaration of Demond Harris ¶ 23 (“Harris Decl.”); Hardy Decl. ¶ 16. This failure to provide cleaning supplies is especially important in the bathroom because “[i]f two guys are using the toilets next to each other, their legs could touch.” Hardy Decl. ¶ 6. Detainees also are generally not given bleach to clean these shared surfaces, even though the Jail staff apparently has such chemicals available for this purpose. Ex. 8, Declaration of Joseph Williams ¶ 21 (“Williams Decl.”); Rogers Decl. ¶ 24; Spears Decl. ¶ 10 (describing guards’ use of bleach to kill leeches in the bathroom drain). Most days, phones and tablets, shared by all detainees on a given floor to communicate with loved ones or attorneys, are not cleaned. Bradley Decl. ¶ 14. Many detainees resort to placing socks over their hands when they handle the communal phone. Id.; Hardy Decl. ¶ 17; Shepherd Decl. ¶ 28. Finally, laundry is now done twice a week, but the detainees do not believe that the Jail is using proper detergents to sanitize their one uniform and set of sheets. Spears Decl. ¶ 25.
B. Defendants’ testing and identification of COVID-19 has been inadequate Even though COVID-19 has already infiltrated the Jail, Defendants are not taking adequate measures to prevent the virus from spreading by providing appropriate care for detainees who may be or are positive for COVID-19. Although the first detainee tested positive for COVID-19 on March 9 (and later died in the hospital), the Jail did not change its procedures to account for the virus until late March. Spears Decl. ¶ 27. And when Defendants did introduce steps to identify detainees with COVID-19, they started only by checking the detainees’ temperatures. Hardy Decl. ¶ 10; Harris Decl. ¶ 6; Bradley Decl. ¶ 5. Some detainees who had high temperatures were then
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sent back to the line. Spears Decl. ¶ 11. Testing for COVID-19 was introduced only in the second week of April, though not all detainees have been tested. See Franklin Decl. ¶ 19; Ex. 9, Declaration of Clifton Belton, Jr. ¶ 4 (“Belton Decl”).
Detainee Christopher Rogers, for example, reported that he wasn’t feeling well in the middle of April. Rogers Decl. ¶ 8. He was told by one of the nurses that because no one on his side of the Jail had the virus, nothing was wrong with him and they would take his temperature later. Id. In fact, Rogers was left on the line for several days with a bad headache and body aches, and only had his temperature checked on April 20. Id. ¶ 9. He was then tested for coronavirus, and received a positive result four days later, at which point he was transferred from his line to a different location in the Jail. Id. In all, Rogers was left on the line for nearly one week while exhibiting symptoms of coronavirus, see id. ¶¶ 8-9—potentially exposing hundreds of other detainees. Similarly, Willie Shepherd was left on the line for three days with a headache and body aches before being transferred from the line, and he too tested positive for coronavirus. Shepherd Decl. ¶ 7.
Other detainees similarly report that in spite of the fact that they reported symptoms of coronavirus to the nurses, they were not provided adequate treatment unless their temperatures were above the normal level. Ex. 10, Declaration of Devonte Stewart ¶ 5 (“Stewart Decl.”). During April, there was widespread sickness on the lines, but the Jail was either unable or unwilling to control the spread of disease. Spears Decl. ¶ 11 (describing numerous sick detainees in his line who were never transferred).
C. Defendants maintain dangerous conditions at the Jail. The Jail’s living conditions are abhorrent. Defendants are not taking basic measures to maintain safe, hygienic conditions at the Jail and are instead creating and perpetuating a dangerous, unsanitary environment that is putting detainees at risk. On the “lines” where the detainees reside,
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there is “mold growing and rust everywhere,” the roof leaks, and there is mold and scum in the bathrooms. Hardy Decl. ¶ 4; Shepherd Decl. ¶ 27. Detainees report that there is “blood and other bodily fluids” on the walls, and that some of the lines have cockroaches, leeches, and gnats. Spears Decl. ¶ 5. There is not sufficient air circulation on the lines, and the cells can reach in excess of 100 degrees on some days. Rogers Decl. ¶ 18.
The bathrooms and showers the detainees share are unsanitary or often not even functioning. The shower mats have mold on them, and the showers themselves are rusted. Rogers Decl. ¶ 27. In some of the bathrooms, up to half the urinals are broken, as are some toilets. Spears Decl. ¶ 10. Detainees estimate that the showers are fully sanitized approximately once a week, even though at least 80 detainees share each set of showers, in an area that is not large enough for detainees to have sufficient personal space. Hardy Decl. ¶ 18; Spears Decl. ¶ 19 (describing how the detainees must clean the showers, and are rarely given bleach to do so). The showers that do work are “ice cold,” and some detainees resort to using the sink to shower. Shepherd Decl. ¶ 17; Harris Decl. ¶ 23; Williams Decl. ¶ 23. The drains in the bathrooms are often clogged with waste water, and when the showers are used, water “pour[s] out onto the floor and leak[s] down the whole line.” Rogers Decl. ¶ 27.
Detainee Cedric Spears, who worked in the kitchen from mid-February to mid-March, describes it as such:
The kitchen is filthy. You can smell the spoiled food when you walk into the kitchen. There is also old food caked into the cracks in the serving line area, on the counter, and on the walls. There are food particles everywhere. They don’t sanitize anything properly, most of the dishes aren’t cleaned properly, and they use the same broom for sweeping the floors and cleaning out the hot box where food is stored. Spears Decl. ¶ 7. D. Defendants’ use of “lockdown” to treat detainees with COVID-19 For those detainees identified as sick, the Jail has established a policy of isolation and
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denial of basic medical services, placing detainees at increased risk of medical distress. In response to the outbreak of COVID-19, the Jail re-opened the A, B, and C blocks of the Jail, which had been closed down two or three years earlier for “safety concerns.”20 Harris Decl. ¶ 8; Rogers Decl. ¶ 13; Bradley Decl. ¶ 9.
The conditions in the decrepit A, B, and C blocks are even worse than the conditions on the F, J, and Q lines. Because these areas of the Jail had not been outfitted for human habitation for several years, there are rats, cockroaches, and spiders in the cells, and the detainees have seen fibers or hairs in the water and do not know if the sinks in their cells are safe to drink from. Harris Decl. ¶ 8; Rogers Decl. ¶ 22; Franklin Decl. ¶ 37; Shepherd Decl. ¶ 14; Williams Decl. ¶ 11 (“I have to store [my property] high up so the rats can’t get into it” and describing a rat “the size of an opossum”); Bradley Decl. ¶ 9. Many of the showers, toilets, and sinks are leaking, and mold grows abundantly in those areas. Rogers Decl. ¶ 27. The guards only rarely clean the blocks, and this limited sanitation is confined to the hallway floor, not door handles or other communal areas. Rogers Decl. ¶ 22. The cells are so close to one another that detainees can reach out through the iron bars of their cell into an adjacent cell, which they did to pass items such as food and toilet paper. Williams Decl. ¶ 9; Rogers Decl. ¶ 17; Harris Decl. ¶ 9. Detainees are given a single piece of paper towel to clean down their cells, and were not provided with any cleaning supplies apart from soap and water from their sinks. Bradley Decl. ¶¶ 10, 12.
Detainees in the A and C blocks are held in solitary confinement, while detainees in the B block share their cells with up to two other detainees. Williams Decl. ¶ 8; Harris Decl. ¶ 8. Within the B block cells, it is impossible for the detainees to practice social distancing. Williams Decl. ¶
20 See also Lea Skene, Officials Close Three Wings at Aging East Baton Rouge Prison Because of Safety Concerns, The Advocate (Dec. 31, 2018), https://www.theadvocate.com/baton_rouge/news/article_56230150-0315-11e9-b84f97327cf57814.html.
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10 (“We can’t stay 6 feet apart from the people in our cell because there’s not that much space in the cell.”). Not all of the detainees in the blocks have tested positive for COVID-19, and detainees who have tested positive for COVID-19 are sometimes placed in the same cells as those who have tested negative. Shepherd Decl. ¶ 8.
Detainees on “lockdown” in the A, B, and C blocks are locked in their cells for most of the day. Some detainees report that they were kept in their cell the entire day for their first week in lockdown, and were only permitted to leave their cells for up to an hour thereafter (and some for less time), permitting them finally to shower or use the phone to call their loved ones. Harris Decl. ¶ 11; Rogers Decl. ¶ 14; Stewart Decl. ¶ 13; Shepherd Decl. ¶ 15. Detainee Devonte Stewart explains that he has been threatened with mace and beatings if he asks to be let out of his cell for more than thirty minutes. Stewart Decl. ¶ 16. While in isolation, the detainees are largely prohibited from speaking with their families or receiving any news from the outside world. Shepherd Decl. ¶ 8; Rogers Decl. ¶¶ 14, 21, 33 (describing the lack of a television in the day room in Block B).
E. Defendants in lockdown lack access to basic medical services Because detainees in lockdown are isolated from the rest of the Jail, they are often denied the same access to medical care even though they are most vulnerable. Detainees report that the guards rarely visit the cells in the blocks, and therefore fail to respond to the detainees’ concerns. Harris Decl. ¶ 20 (“The nurses were so scared to go back to the lockdown lines that they would only come back to check our temperatures and then literally run out of there”); Stewart Decl. ¶ 17. The nurses, who are supposed to visit twice a day for pill call, do not arrive every day, and jail staff with no experience or training in medicine are left to administer medication. Rogers Decl. ¶ 37. Sometimes the nurses do temperature checks during pill call, and sometimes they do not. Franklin Decl. ¶ 42.
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Willie Shepherd has high blood pressure and a bleeding ulcer. Shepherd Decl. ¶ 4. On April 11, 2020, he reported that he had a headache and body aches. Id. ¶ 7. Three days later, a Jail nurse administered a COVID-19 test to Shepherd. Five days later, Shepherd tested positive for Covid-19. Id. For a total of eight days, Shepherd remained in the Q3 line with 45 other detainees while he exhibited symptoms of COVID-19. Id. ¶¶ 5, 7. Shepherd was transferred to the B3 Block, and was placed in a cell with four other detainees who had tested negative for COVID-19. Id. ¶ 8. Shepherd describes the medical care he received in the B3 Block:
We didn’t get any real medical care on B3. Medical staff came back twice a day for pill calls, when they would give us our prescription medications. I got medications for my high blood pressure and bleeding ulcer at pill call. But all they gave us for coronavirus was Tylenol. After about a week and a half on B3, the nurses also began giving us vitamins. That was all we got. We didn’t even get Gatorade, and we barely got any water. I don’t know why they moved us if they weren’t going to do anything for us but give us Tylenol and vitamins. The nurses didn’t give us any other medical care during pill call. Id. ¶ 9. One day, Shepherd was throwing up blood. Id. ¶ 11. It took Jail staff five hours to respond, by which time Shepherd had cleaned up any traces of blood from the toilet into which he vomited. Id. As a result, the nurse refused to give him any medical treatment. Id. He received water in his cell only sporadically, and the water in the sink in his cell was “really hot, and if it sat for a little while, brown stuff came out of the sink.” Id. ¶ 14. Three weeks later, Shepherd was moved back to the Q line, but was never given any paperwork to corroborate that he in fact tested negative for COVID-19. Id. ¶ 20. Jerry Bradley is currently in lockdown. Previously confined on the Q9-10 line with over 100 other detainees, he was moved to Block C01 on April 13, 2020, even though he did not report any body aches or other symptoms, and his temperature was under 100 degrees. Bradley Decl. ¶¶ 4, 6. He learned that he tested positive for COVID-19 on April 14, and was transferred with five other positive detainees to lockdown. Id. ¶ 8. His first night in lockdown, the Jail staff brought
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him only one cup of drinking water, and other nights he was given no water at all. Id. ¶ 11. He received no cleaning supplies apart from soap, water, and a paper towel. Id. ¶ 12. For medical treatment, Bradley received vitamins, Mucinex, and Tylenol, none of which are proven to treat COVID-19. Id. ¶ 15. He received no other medical care, and was transferred to the A1 Block after about a week, where he has remained—on lockdown—for over a month. Id. ¶ 17. During the time he has been on lockdown, he has seen more and more sick detainees brought to his block, and he fears becoming sick again. Id. ¶ 21. Nor is he improving; Bradley tested negative for COVID-19 on May 1, positive on May 4, and positive again on May 19. Id. ¶ 22.
Joseph Williams, is also currently in lockdown, transferred there after recording a temperature of approximately 100 degrees on April 24 and testing positive on a test administered the next day. Williams Decl. ¶¶ 5, 7, 13. He shares his cell with one other detainee, but they cannot stay six feet apart because the cell is only ten by six feet. Id. ¶ 10; Shepherd Decl. ¶ 8. Several days after his positive test, he was given Tylenol to manage the symptoms. Other detainees around him were not as fortunate; he describes how he beat on the door of his cell for 15-20 minutes to get medical attention for one of the other detainees, until the guards finally stopped ignoring him. Id. ¶ 16. And Williams describes his own experience when he suffered chest and stomach pains, including vomiting:
I tried to get medical care by beating on the door for 20-30 minutes, but no one responded. I had to call my aunt to get some help. She and several other members of my family called . . . to try to get me some medical attention. Guards finally came on the line to check on me, and I told them to call medical. They kept asking me why, but one of the guards finally called medical. The nurse was mad at me when she got to the line. She just checked my temperature and blood pressure, then gave me Tylenol and another pill for three days. I don’t know what that pill was, and I didn’t have a temperature. The nurse left immediately after. Id. ¶ 17. Defendants are failing to provide basic medical services to the most vulnerable detainees, including those in lockdown.
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F. Defendants do not provide basic personal hygiene supplies or sufficient personal protective equipment to detainees in response to COVID-19. In the face of this global pandemic, Defendants have not and do not provide detainees with
enough of the basic hygiene supplies that are critical to preventing the spread of COVID-19. Although the CDC advises that handwashing is one of the best ways to protect against COVID19,21 the Jail only provides a single small bar of soap per week to detainees, and even then only sometimes. Hardy Decl. ¶ 19. If the detainees want extra soap, those who can afford it must purchase it from the commissary, an overwhelming burden given that the vast majority of detainees live below the poverty line.22 Rogers Decl. ¶ 28; Williams Decl. ¶ 25. In addition to using the soap for their personal hygiene, detainees must use the single bar of soap to sanitize their cells and communal spaces. Harris Decl. ¶ 26; Williams Decl. ¶¶ 20. Defendants do not otherwise provide Plaintiffs or putative class members with supplies for hand sanitization. Spears Decl. ¶ 23.
The detainees also are not given access to sufficient personal protective equipment, such as masks and gloves. No detainee received any sort of mask until April 7—a full week after the CDC issued its guidance to prisons—and the masks were provided only to a portion of the detainees. See Compl. ¶ 46; Harris Decl. ¶ 16. For the detainees who received masks, they were instructed to use them for a full week. Williams Decl. ¶ 27. Other detainees were given bandanas instead of masks, which they are given the option to turn in for cleaning once a week. Id.; Rogers Decl. ¶ 12; Hardy Decl. ¶ 20; Shepherd Decl. ¶ 19. No detainees are given gloves. Rogers Decl. ¶ 12; Spears Decl. ¶ 20. And even the staff does not consistently wear personal protective
21 See Ctrs. for Disease Control & Prevention, When and How to Wash Your Hands, https://www.cdc.gov/handwashing/when-how-handwashing.html (last visited May 26, 2020). 22 Grace Toohey, East Baton Rouge Parish jails people at rates far higher than New Orleans and Lafayette: Here's Why, The Advocate (Sept. 14, 2019), https://www.theadvocate.com/baton_rouge/news/courts/article_aa68a582-c45b11e9-8439-a7110c42fa80.html.
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equipment when they interact with the detainees. Shepherd Decl. ¶ 22; Williams Decl. ¶ 27; Bradley Decl. ¶ 5.
Following the outbreak of the virus, the guards now bring food to the detainees in their cells. Hardy Decl. ¶ 21; Shepherd Decl. ¶ 13. Some guards wear masks and gloves while they deliver the food, and others do not. Rogers Decl. ¶ 35. Jail staff will sometimes serve food to detainees on the same carts that are used for collecting trash. Spears Decl. ¶ 18; Hardy Decl. ¶ 22.
G. Defendants fail to provide adequate and timely medical care. 1. Defendants’ medical procedures are inadequate and have been for years.
For years, Baton Rouge policymakers have acknowledged that the old closed part of the jail is unfit for the safe detention of people and the provision of health care.23 In 2015, Sheriff Gautreaux told the Parish’s Metro Council the “old part of the prison is really in deplorable condition. We have issues with ventilation; with plumbing. Really it’s laid out in the old way, that poses a problem from a safety standpoint for the safety of the inmates in the prison . . . ”24 He concluded that the current facility is “not adequate for providing health care” and admitted the “if [investigators from the federal Department of Justice] came in that prison today, they would shut half of it down.” The Metro Council also heard that Dr. Rani Whitfield, who had worked in the jail for 16 years, witnessed a “significant decline in care to patients” due to underfunding and
23 See Lea Skene, Officials Close Three Wings at Aging East Baton Rouge Prison Because of Safety Concerns, The Advocate (Dec. 31, 2018), https://www.theadvocate.com/baton_rouge/news/article_56230150-0315-11e9-b84f97327cf57814.html 24 See Ex. 17 to Compl., City of Baton Rouge/Parish of East Baton Rouge, Jan. 14, 2015 Metro. Council Mtg., Items 13P and Q Part 1.
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understaffing.25 Councilwoman Banks-Daniel presciently described the health care situation in the jail as “catastrophic.”26
Even for those not on lockdown, the process for obtaining medical attention—for COVID19 symptoms or more routine medical care—is woefully deficient. To request medical attention, detainees are required to fill out a “medical request form,” and the nurses are supposed to check on the detainees when they distribute pills. Bradley Decl. ¶ 15; Stewart Decl. ¶ 25 (“I asked them for extra medicine, and they said my injuries are not serious enough and they need paperwork to treat them”). During pill call, detainees speak to the nurses without masks, and are not permitted to wash their hands before handling and taking their pills. Spears Decl. ¶ 28. And even when detainees are able to make formal requests for medicine or treatment, their requests are often delayed or ignored. Rogers Decl. ¶ 39; Stewart Decl. ¶ 16. In addition, since the outbreak of COVID-19, detainees believe that the medical staff has been less attentive to other medical needs of the detainees. Shepherd Decl. ¶ 25; Spears Decl. ¶ 31 (“I can’t talk to the social worker about my [mental health] diagnosis or my medications because she won’t come back on the line to talk to us.”).
Many detainees report that they cannot get medical attention when they require it. Christopher Rogers recalls that there were times when his leg was numb while he had COVID-19 but no one came to help him when he called to the nurse for help. Rogers Decl. ¶ 40. For those who are brought to the infirmary, it is described as “nasty,” with gnats and pooled water. Belton Decl. ¶ 8. There is also no buzzer or call button to alert the staff in the case of an emergency, and all of the infirmary facilities are shared, regardless of the ailments of the detainees in the infirmary.
25 Ex. 18 to Compl., City of Baton Rouge/Parish of East Baton Rouge, Aug. 26, 2015 Metro. Council Mtg. 28:10, Item 9 Part I and II. 26 Id. at 51:39.
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Id. Finally, some detainees report that the Jail has now stopped providing even the rudimentary
protections it previously permitted, such as checking temperatures and testing for the virus. Spears Decl. ¶ 27; Shepherd Decl. ¶ 24.
2. Defendants ignore and retaliate against detainees for filing grievances concerning the lack of medical care or unsanitary conditions of confinement
Although the Jail has a formal process for filing “grievances,” it has ignored most grievances related to COVID-19. In order to file a grievance, a detainee must complete a specific form. Spears Decl. ¶ 33. Because the box in which the detainees must place the grievance form is outside the living area, the detainees must give the grievance forms to the guards, and rely on them to put them in the box. Id. In addition, the forms are only sometimes available, and the staff will make excuses as to why a detainee cannot receive a form at the moment. Id. at ¶ 27.
Because the Jail has discouraged grievances since the COVID-19 outbreak and responded to only a very few grievances submitted, detainees fear retaliation if they continue to push for a response. Hardy Decl. ¶ 24. In fact, some detainees have been punished for raising grievances. Christopher Rogers asked to speak with the Jail Captain and Warden regarding his grievances as to the conditions in the B Block, and was told that the Sergeant in charge of responding to grievances would not visit the B Block to speak with him. Rogers Decl. ¶ 43. After filing a second grievance related to the inability for detainees to use chemical cleaning products in their cells, the Deputy involved came to Rogers’ cell, questioned him aggressively, and shoved Rogers into a wall. Id. ¶ 44. Rogers received no other response to this grievance.
H. Defendants’ failure to control the COVID-19 outbreak and use of punitive solitary confinement threatens the mental health and safety of all detainees
In addition to the physical ailments that the detainees are forced to endure with limited medical attention, their mental health is also suffering as a result of the Jail’s policies towards
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COVID-19. Many of the detainees are worried that they are at high risk of contracting the virus because of the close quarters, and because there is frequent transfer of detainees between the different blocks, increasing the likelihood that healthy detainees are put into contact with those who have contracted the virus.
Several detainees report anxiety because they know that the Jail is not adequately prepared to help them:
• “I feel like my life might be in danger if I get the coronavirus in here. I’m really stressed because no one is listening to me in here.” Spears Decl. ¶ 32;
• “I’m really stressed on B3 because I could be home but I’m stuck here on a parole hold and I’m locked in a cell around sick people . . . ” Williams Decl. ¶ 29.
• “It was really stressful to be on the B3 line because we were bored, isolated, we didn’t know what was going on, and there were older people back there in way worse condition. One man was really sick. We would bring him water when we could, but it was depressing and stressful to watch him struggle. I have been diagnosed with depression and anxiety, and being on B3 was making me more depressed and stressed. Even after I thought I’d beat coronavirus, I was stuck back there with sick people, and I was constantly afraid I’d get sick again.” Rogers Decl. ¶ 42;
• “It’s really tough being in lockdown. I’m depressed, angry, and stressed back here. And I’m often very hungry, too.” Stewart Decl. ¶ 28;
• “They’re really not doing this ‘isolation’ thing well. They aren’t social distancing us at all, and they’re mixing people who haven’t been confirmed to have coronavirus with those who have tested positive.” Franklin Decl. ¶ 43.
That anxiety is surely heightened for those held—even for period of weeks—in punishing solitary confinement. It is well-documented that solitary confinement, even for a period of days or weeks can have profound psychological and physical effects, such as a heightened state of anxiety and nervousness, obsessive thoughts, paranoia, hallucinations, headaches, insomnia, lethargy or chronic fatigue, nightmares, heart palpitations, suicidal ideations and fear of impending
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nervous breakdowns.27
Because the Jail is failing to take even remedial steps to assuage the fears of the detainees,
legal recourse is necessary in order to protect the detainees’ wellbeing.
I. Defendants fail to provide information about COVID-19 and its spread.
Defendants have done little to educate the detainees in their care about the pandemic;
detainees are instead forced to rely on the news or information from loved ones—when they can
access it—for details about the virus and how to best protect themselves. Although some signs
about keeping clean and not touching their faces have been posted, Jail staff have not explained
the symptoms or warning signs of the virus to detainees. Spears Decl. ¶ 29; Hardy Decl. ¶ 23
(“The guards don’t give us any information or updates about the coronavirus, and they didn’t tell
us about washing our hands.”). As detainee Cedric Spears explains:
The guards don’t tell us anything about the coronavirus or how to take care of ourselves during the pandemic. We haven’t seen the Warden since the beginning of the pandemic, and no ranking officer comes back to tell us anything. The guards mostly just try to get off the line quickly. They act like they’re in danger being around us, but they’re the ones who go into the community and get exposed to the virus. We might have had a sign up with information about coronavirus at one point, but I don’t think I saw signs on each of the lines I was on. We try to get our information about the coronavirus when we watch the news – there are two 32-inch tvs in the day room.
Spears Decl. ¶¶ 29-30. But those detainees who were transferred into the A, B, and C blocks are
prohibited from going to the day room or watching television, leaving them with no “information
about coronavirus, how to protect ourselves, or what was going on in the world.” Rogers Decl.
27 See, e.g. Craig Haney, Infamous Punishment: The Psychological Effects of Isolation, 8 Nat’l Prison Project Journal 3 (1993); Stuart Grassian, Psychopathological Effects of Solitary Confinement, Am. J. of Psychiatry, 140 at 1450- 54 (1983); Peter Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature, in Michael Tonry (Ed.), Crime and Justice (2006) at 441-528; Hans Toch, Men in Crisis: Human Breakdowns in Prisons. Aldine Publishing Co. (1975) at 50-55; Jeffrey Metzner & Jamie Fellner, Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics, 38 J. of the Academy of Psychiatry and Law 104, 104 (2010), http://www.hrw.org/sites/default/files/related_material/Solitary%20Confinement%20and%20 Mental%20Illness%20in%20US%20Prisons.pdf.
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¶ 33; Williams Decl. ¶ 19. Demond Harris crystallizes the general attitude of his fellow detainees:
I think the jail staff is trying to create an atmosphere of fear around lockdown so that guys won’t report symptoms to avoid going on the line. They took away almost all of our privileges on lockdown, including commissary, access to hygiene products, mail, open access to phones, and tvs. Why else would they take all of our privileges away? If people on the line heard about that, they wouldn’t want to tell the nurse they were sick and they would be scared to go to lockdown. So they kept their symptoms quiet, and the jail staff let the virus spread throughout the jail. I think this is how the jail has kept their positive-case count down.
Harris Decl. ¶ 33. In sum, Defendants created and have now perpetuated an environment in which
the named Plaintiffs and all class members face grave risks to their health, and endure continual
violations of their constitutional rights.
J. Expert Medical Opinion Demonstrates that Release from Detention is the Only Remedial Measure that Will Protect Medically Vulnerable Detainees.
The overwhelming medical and scientific consensus is that social distancing of at least six
feet is required to reasonably reduce the risk of transmission of the novel coronavirus. Hassig
Decl. ¶ 3; Lauring Decl ¶ 42; Rottnek Decl. ¶ 13. As Dr. Carlos Franco-Paredes explains, measures
short of social distancing like the ones recommended by the CDC are important but “insufficient
to interrupt the transmission of COVID-19 infection, unless social distancing is also meaningfully
implemented.”28 Not only is this the judgment of the prominent local and national medical
experts,29 but the Centers for Disease Control and Prevention (CDC),30 the American Medical
28 See Ex. 5 to Compl., Declaration of Dr. Carlos Franco-Paredes at 1, Cameron v. Bouchard, No. 20-cv-10949 (E.D. Mich. April 17, 2020), ECF No. 1-6 (“Paredes Report”); see also Order at 6, Wilson v. Williams, No. 20-cv-794 (N.D. Ohio Apr. 22, 2020), ECF No. 22 (“Respondents say that soap and disinfectant are readily available . . . However, these supplies can only be so useful in an environment where the inmates are constantly in close proximity to each other.”). 29 See Meyer Decl. ¶ 9 (“When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing.”); id. ¶ 23 (“As infectious diseases spread in the community, public health demands mitigation strategies, which involves social distancing and closing other communal spaces . . . to protect those most vulnerable to the disease.”); see also Ex. 13 to Compl., Declaration of Robert B. Greifinger ¶¶ 4, 8, Dawson v. Asher, Case No. 2:20-cv-00409-JLR-MAT (D. Or., filed Mar. 16, 2020), ECF No. 4; Ex. 8 to Compl., Declaration of Elizabeth Y. Chiao ¶ 12, Russell v. Harris Cty., No. 4:19-cv-00226 (S.D. Tex. Mar. 27, 2020), ECF No. 32-2. 30 Ctrs. for Disease Control & Prevention, Social Distancing, Quarantine, and Isolation, (Apr. 4, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html; Ctrs. for Diseases Control
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Association,31 the American Red Cross,32 and the Florida Department of Health33 have all concluded that social distancing is essential to preventing transmission of the deadly infection.
Because social distancing at the jail is impossible, see Hassig Decl. ¶ 9; Rottnek Decl. ¶ 16, medical experts have concluded, Hassig Decl. ¶ 10; Lauring Decl. ¶¶ 36–37; Paredes Decl. Executive Summary; Stern Decl. ¶¶ 12–13, the only way to protect the subclass from the imminent threat of death or life-threatening illness is to order them removed from the jail.34 Medicallyvulnerable detainees should be prioritized, as they are at greatest risk of contracting and spreading COVID-19 and because their underlying morbidities make them highly susceptible to serious illness and death. Id. This risk is not only to other detainees; staff, medical professionals, and their communities and families are at increased risk of infection if they work in dangerous conditions. Rottnek Decl. ¶ 57. Nor should detainees be transferred to other facilities where there may be more space, as the transport process often “places both detainees and accompanying staff in potentially risky proximity,” and introduces the possibility of introducing infection into new facilities. Hassig Decl. ¶¶ 10, 11.
The Chief Justice of the Louisiana Supreme Court has likewise recognized the perils of not releasing medically vulnerable detainees, encouraging district court judges to release
& Prevention, How to Protect Yourself & Others (Apr. 13, 2020) (explaining the paramount importance of social distancing, even if taking other precautions such as a mask). 31 AMA, AHA, ANA: #StayHome to confront COVID-19, Am. Medical Ass’n (Mar. 24, 2020), https://www.amaassn.org/press-center/press-releases/ama-aha-ana-stayhome-confront-covid-19. 32 Coronavirus – What Social Distancing Means, Am. Red Cross (Apr. 14, 2020), https://www.redcross.org/aboutus/news-and-events/news/2020/coronavirus-what-social-distancing-means.html. 33 How Do I Prevent and Prepare For COVID-19?, Fla. Dep’t of Health (Apr. 24, 2020), https://floridahealthcovid19.gov/prevention/. 34 Malam v. Adducci, __ F. Supp. 3d __, 2020 WL 1672662 (E.D. Mich. Apr. 5, 2020) at *4 (“[T]he public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety” (citing declaration by infectious disease epidemiologist Joseph Amon)); see also Thakker v. Doll, __ F. Supp. __, 2020 WL 1671563, at *9 (M.D. Pa. Mar. 31, 2020).
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detained persons because a coronavirus outbreak in jails and prisons would be “catastrophic for jail staff, the families of jail staff, and inmates.”35
ARGUMENT Plaintiffs and the class members they seek to represent are at imminent risk of death or serious injury. If this litigation is decided in the ordinary course, many class members, particularly the subclass of medically vulnerable detainees (“Medically Vulnerable Subclass), will become seriously ill and die before final judgment.36 Numerous others will suffer severe pain or organ damage. In order to protect the safety and lives of the subclass members, the Court should issue a temporary restraining order requiring their release from the unsanitary, infectious jail environment because there are no measures that Defendants can take within the facility to protect these detainees from an unconstitutionally high risk of death or serious bodily harm. Their lives depend on how quickly they are released—subject to reasonable conditions—to preserve the status quo, namely the health and life of subclass members. This relief is appropriate either through 28 U.S.C. § 2241 or, in the alternative, through 42 U.S.C. § 1983. Under Rule 65, “[a] plaintiff seeking a preliminary injunction 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 that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Lake Charles Diesel, Inc. v. General Motors Corp, 328 F.3d 192, 195 (5th Cir. 2003). The Court likewise has
35 See Chief Justice Bernette Joshua Johnson, Letter to the Louisiana District Judges (Apr. 2, 2020) https://www.lasc.org/COVID19/2020-04-02-LASC-ChiefLetterReCOVID-19andjailpopulation.pdf; see also Javonti Thomas, Louisiana Chief Justice calls for reduced jail populations to combat COVID-19 outbreak, KALB (Apr. 3, 2020) https://www.kalb.com/content/news/Louisiana-Chief-Justice-calls-for-reduced-jail-populations- to-avoidCOVID-19-outbreak--569348241.html. 36 Plaintiffs are contemporaneously filing a motion for certification of a class of all persons detained at EBPP, as well as a (i) subclass of medically vulnerable detainees who are the subject of this motion; (ii) subclass of pretrial individuals; (iii) subclass of post-conviction individuals.
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independent authority under habeas corpus, 28 U.S.C. § 2241, to order immediate release from unconstitutional confinement. See infra Section (IV).
As explained below, the Medically-Vulnerable Subclass members satisfy each of these Rule 65 elements and that release pursuant to habeas and this Court’s inherent equitable powers is mandated. There is voluminous evidence in the record showing that the Subclass members are particularly vulnerable to severe illness and death, through their likely exposure to the surging COVID-19 virus. The evidence demonstrating the serious risk they face to their health, including a risk of death, constitutes the clearest form of irreparable harm that the law recognizes. There is no remediation to the risk medically vulnerable subclass members face that Defendants could take, short of release.
Subclass members are likely to succeed on their due process and habeas claims because subjecting pretrial detainees to such an unreasonable health risk constitutes impermissible punishment under the Fourteenth Amendment, particularly as the Defendants can safeguard any legitimate government interest in preventing flight through reasonable alternatives to detention. Further, Defendants are acting unconstitutionally under the Eighth Amendment “deliberate indifference” standard applicable to post-conviction subclass members as their failure to implement the basic steps recommended by health experts, the CDC, and Governor John Bel Edwards37 when they are well aware of the extreme risks posed by this virus constitutes deliberate indifference. I. SUBCLASS MEMBERS WILL SUFFER IRREPARABLE HARM IN THE
ABSENCE OF A TRO MANDATING THEIR RELEASE.
37 See Executive Order, (May 15, 2020), https://gov.louisiana.gov/assets/Proclamations/2020/58-JBE-2020.pdf.
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“Perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered.” Monumental Task Comm., Inc. v. Foxx, 157 F. Supp. 3d 573, 582-83 (E.D. La. 2016), aff’d sub nom. Monumental Task Comm., Inc. v. Chao, 678 F. App’x 250 (5th Cir. 2017) (quotations omitted). The Fifth Circuit requires only a “substantial threat” of irreparable injury, DSC Commc’ns Corp. v. DGI Techs., Inc., 81 F.3d 597, 600 (5th Cir.1996), which is defined as “harm for which there is no adequate remedy at law,” such as monetary damages. Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579, 585 (5th Cir. 2013). A court “need not await a tragic event” to afford injunctive relief. Helling v. McKinney, 509 U.S. 25, 33 (1993) (noting “It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.”).
Plaintiffs allege injuries that are irreparable and, therefore, are not suitable for resolution in the ordinary course of litigation. There is no injury that is more irreparable than death, and Plaintiffs face a heightened risk of contracting a deadly virus due to Defendants’ actions. See In re Bahadur, No. EP-19-CV-00357-DCG, 2020 U.S. Dist. LEXIS 33455, at *14 (W.D. Tex. Feb. 27, 2020); Chambers v. Coventry Health Care of Louisiana, Inc., 318 F. Supp. 2d 382 (E.D. La. 2004) (irreparable harm found where late detection of cancer could lead to death). This risk is neither speculative nor attenuated: in a prison in Oakdale, Louisiana where COVID-19 has been allowed to spread, five people have died in less than a week.38 With 93 confirmed COVID-19 cases in the Jail39, the risk of death and physical devastation to subclass members is an absolute certainty of
38 ACLU Sues Louisiana Prison After 5 COVID-19 Deaths Reported, Democracy Now (Apr. 7, 2020), https://www.democracynow.org/2020/4/7/headlines/aclu_sues_louisiana_prison_after_5_covid_19_deaths_reported. 39 See Ex. 1 to Compl., EBRPP COVID-19 Statistics (May 14, 2020).
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the kind that cries for judicial relief. Even short of death, Plaintiffs are at grave risk of contracting severe and potentially lifelong
medical conditions – including neurologic damage and the loss of respiratory capacity—and may require extensive rehabilitation or profound reconditioning—which also establishes irreparable harm. See, e.g., Vazquez-Berrera v. Wolf, No. 20-cv-1241, 2020 WL 1904497, at *6 (S.D. Tex. Apr. 17, 2020) (“Given Plaintiffs’ vulnerabilities to serious illness if infected with the coronavirus and the serious and imminent risk of infection if they remain in immigration detention, Plaintiffs have shown irreparable harm.”); see also Unknown Parties v. Johnson, No. CV- 15-00250-TUC (DCBx), 2016 WL 8188563, at *15 (D. Ariz. No. 18, 2016), aff’d sub nom Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017) (irreparable harm where evidence demonstrated “medical risks associated with . . . being exposed to communicable diseases”).
The expert evidence in this case demonstrate that short of release, there are no sufficient measures—preventative or palliative—that Defendants can implement to protect Subclass Members from the unprecedented threats to the safety of these individuals—and those who come in contact with them, including staff, healthcare providers, and local populations. Hassig Decl. ¶¶ 9, 10; Rottnek Dec. ¶¶ 54, 57. Release is the only option. See also Lauring Decl. ¶¶41-43 (opining that until a vaccine is developed, “For the medically vulnerable . . . immediate release is the only option. The detainees’ inability to practice physical distancing at all times, coupled with the Jail’s failure to properly screen, identify, and quarantine infection, and their widespread neglect of medical needs creates a meaningfully higher risk of death for these individuals.”). Recognizing these grave risks, courts across the country have granted immediate relief to people seeking to avoid medically-unsafe confinement.40
40 See Zhang v. Barr, No. ED CV 20-00331-AB, 2020 WL 1502607, at *6 (C.D. Cal. Mar. 27, 2020) (granting an immediate bond hearing in light of the “global pandemic by which delay in determining Petitioner’s release exposes
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Moreover, Plaintiffs seek relief from violations of their constitutional rights. In the context of a preliminary injunction, the loss of a constitutional right “unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). II. SUBCLASS MEMBERS ARE LIKELY TO SUCCEED ON THE MERITS OF
THEIR CLAIMS The government has a constitutional duty to protect those it detains from “a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). This right arises under the and under the Fourteenth Amendment’s Due Process Clause pre-conviction, see City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983), and under the Eighth Amendment post-conviction, see id.; Estelle v. Gamble, 429 U.S. 97, 104 (1976). Subclass members are likely to succeed on their claims because Defendants are subjecting detainees to an unreasonable level of risk in violation of pretrial detainees’ Fourteenth Amendment rights and are otherwise deliberately indifferent to the substantial risk that Medically Vulnerable Subclass members will contract COVID-19 within the current conditions at the Jail, in violation of the Eighth Amendment. It is a fundamental constitutional proposition that, when the State holds individuals in its custody, the state officials have an obligation to provide for their basic human needs, including medical care and reasonable safety. DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 199–200 (1989). The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs— e.g., food, clothing, shelter, medical care, and reasonable safety—it
him to unnecessary risk”); United States v. Garlock, No. 18-Cr-00418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (ordering, sua sponte, extension of convicted defendant’s surrender date and noting “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided”); Castillo v. Barr, __ F. Supp. 3d __, CV 20-00605 TJH (AFMx), 2020 WL 1502864, at *5 (C.D. Cal. Mar. 27, 2020) (noting “the risk of infection in immigration detention facilities – and jails – is particularly high”); Cameron v. Bouchard, No. 20-cv-10949, 2020 WL 1929876 (E.D. Mich. Apr. 17, 2020) (emergency hearing scheduled for medically-vulnerable subclass).
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transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. Id. (citations omitted); accord Hare v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996); see also Youngberg v. Romeo, 457 U.S. 307, 324 (1982) (the state has an “unquestioned duty” to provide adequate medical care for detained persons). In the Fifth Circuit, “Pretrial detainees and convicted prisoners, however, look to different constitutional provisions for their respective rights to basic needs such as medical care and safety.” Hare, 74 F.3d at 639. For pretrial Subclass members, their claims must be evaluated under the Fourteenth Amendment’s Due Process Clause, see City of Revere, 463 U.S. at 244, which prohibits conditions that are unreasonably excessive to a legitimate government purpose such that they amount to punishment. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Subclass members who are post-conviction are protected by the Eighth Amendment, which prohibits “deliberate indifference to inmate health or safety.” Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir. 1999). Defendants violate both standards. Defendants’ actions demonstrate that they unable to abate the probability of widespread COVID-19 infection and the resultant high risk of severe illness or death. Defendants are thus violating their constitutional duties to all subclass members.
A. Subclass Members Who Are Pretrial Are Subject to Unreasonable, Punitive Conditions of Confinement in Violation of the Fourteenth Amendment. Because those Subclass Members who are pretrial have never been adjudicated to be guilty
of a crime, they enjoy substantive due process protections stemming from the Fourteenth Amendment, which accordingly protects pretrial detainees from any punishment, including
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general conditions of confinement that become unreasonably punitive. Bell v. Wolfish, 441 U.S. 520, 539 (1979); Hare, 135 F.3d at 169.
A condition of detention amounts to impermissible punishment when “it is not reasonably related to a legitimate goal,” if it is “excessive” in relation to a legitimate goal,” or if it is otherwise “arbitrary or purposeless”—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.” Wolfish, 441 U.S. at 539; Hare, 74 F.3d at 640. To make this showing, a person in detention need not demonstrate the defendant’s subjective or malicious intent to punish. Shepherd v. Dallas Cty., 591 F.3d 445, 452 (5th Cir. 2009). “[E]ven where a State may not want to subject a detainee to inhumane conditions of confinement or abusive jail practices, its intent to do so is nevertheless presumed when it incarcerates the detainee in the face of such known conditions and practices.” Hare, 74 F.3d at 644. “A pervasive pattern of serious deficiencies” that subjects an individual in detention to the risk of serious injury or death likewise amounts to punishment. Shepherd, 591 F.3d at 454.
In Shepherd, the Fifth Circuit found that a “jail’s evaluation, monitoring, and treatment of inmates with chronic illness was [...] grossly inadequate due to poor or non-existent procedures and understaffing of guards and medical personnel,” that “serious injury and death were the inevitable results of the jail's gross inattention to the needs of inmates with chronic illness,” and that this amounted to punishment. Shepherd, 591 F.3d at 454. Similarly, in Duvall, the Fifth Circuit affirmed a jury’s finding that Dallas County had an unconstitutionally punitive custom or policy when it allowed infections of Methicillin-Resistant Staphylococcus Aureus (MRSA) to be present in a jail, and failed to take necessary measures for eradication. Duvall v. Dallas Cty., Tex., 631 F.3d 203, 208-09 (5th Cir. 2011).
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Because pretrial detainees cannot be punished for a crime for which they have not been adjudged guilty, the only legitimate government interest in imprisoning pretrial detainees is prevent flight risk, and to assure appearance at trial. Yet, punishment is what these pretrial detainees are being given in the cramped, unsanitary, and irremediable conditions in the East Baton Rouge jail. These conditions impose a demonstrably substantial risk of contracting COVID-19. Once they are exposed, they are all vulnerable to severe illness or death, either because of their age, or because they have underlying medical conditions. Continued detention of Plaintiffs is an imminent threat to their lives that is clearly excessive in relation to the purported government goal, and therefore amounts to punishment. Such exposure to lethal risks becomes even more unreasonable—downright arbitrary and purposeless—when the government interest can be accomplished through innumerable non-carceral alternatives to detention.
There is compelling evidence that alternatives to monetary release conditions are more effective in ensuring appearance for trial and reduce the risk of re-arrest before trial. A study in Colorado found phone calls to people dates a few days before their court dates brought failure-toappears down to 8 percent from previous rate of 21 percent.41 Multnomah County, Oregon reduced its failure-to-appear rate by 31 percent when it started using automated court date reminders.42 The City of Clanton, Alabama, adopted a new policy of releasing all arrestees on a $500 unsecured bond, see Jones ex rel. Varden, No. 2:15cv34-MHT, 2015 WL 5387219 (M.D. Ala. Sept. 14, 2015), as did the City of Velda City and the City of St. Ann.43
41 See e.g., Oregon Knowledge Bank, http://okb.oregon.gov/portfolio-item/auto-notification/ for more examples and studies (last visited May 26, 2020); see also Lael Henterly, When Bail Is Set, the Rich Walk and the Poor Go to Jail Seattle Weekly Times, (Aug. 23, 2016), http://www.seattleweekly.com/news/when-bail-is-set-the-rich-walk-and-thepoor-go-to-jail/. 42 Id. 43 See e.g., Pierce v. City of Velda City, 4:15-CV-570-HEA, 2015 WL 10013006 (E.D. Mo. June 3, 2015); Powell v. City of St. Ann, No. 4:15-cv-840-RWS (E.D. Mo. 2015).
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Other states have voluntarily made changes to avoid unnecessary pretrial detention. For example, in Washington, D.C., arrestees are released on recognizance with appropriate nonfinancial conditions.44 See D.C. Code § 23-1321. In July 2017, the Chief Judge of the Circuit Court for Cook County, Illinois, issued an order prohibiting judges from using money bail to detain arrestees, and requiring any judge who imposes a secured financial condition to make a finding on the record that the individual “has the present ability to pay” the sum.45 90% appeared for all scheduled court dates in the subsequent months following the Order.46 Judges of the highest court in Maryland issued a similar Order, prohibiting Judges from requiring secured financial conditions of release that result in detention due to inability to pay.47 And a year ago, in January 2017, New Jersey virtually eliminated the use of money bail. Since then, the detained pretrial population has dropped by 34%.48
Further, it is well documented that pretrial incarceration harms individuals’ lives far beyond their loss of liberty and the conditions they face in jails, outside of a global pandemic like COVID-19. Collateral consequences of pretrial incarceration include:
● Loss of income and wages when individuals lose their jobs because of their incarceration;

44 The federal government and the District of Columbia both removed money bail virtually entirely from their court systems after the Department of Justice, Congress, and an overwhelming consensus of legal experts concluded that the old system of post-arrest detention based on money bail was fundamentally unfair and unconstitutional. Federal law now explicitly forbids obtaining post-arrest detention through the use of money bail that a person cannot meet. See 18 U.S.C. § 3142(c)(2) (“The judicial officer may not impose a financial condition that results in the pretrial detention of the person.”).

45

The

Order

is

available

at:

http://www.cookcountycourt.org/Manage/DivisionOrders/ViewDivisionOrder/tabid/298/ArticleId/2562/GENERAL-

ORDER-NO-18-8A-Procedures-for-Bail-Hearings-and-Pretrial-Release.aspx.

46 Mean Crepeau, Cook County Jail Drops Below 6,000 Inmates to Lowest Level in Decades, Chi. Trib., (Dec. 22, 2017) http://www.chicagotribune.com/news/local/breaking/ct-met-cook-county-jail-under-6000-inmates-20171221story.html.

47 The Maryland Court of Appeals’ Order is available at http://mdcourts.gov/rules/rodocs/ro192.pdf.

48 Brentin Mock, How New Jersey in Leading the Post-Bail Revolution, CityLab, (Nov. 2, 2017) https://www.citylab.com/equity/2017/11/how-new-jersey-is-leading-the-post-bail-revolution/544691/.

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● Loss of housing and missed payments on bills because individuals cannot work or pay bills while incarcerated; ● Loss of physical and/or legal custody of children; ● An increase of mental illness symptoms because conditions in jail can put an individual under a lot of stress and restrict access to needed medications, exacerbating or even causing mental illness; and ● Increased risk of assault, including sexual assault especially in the first few days of incarceration.49 Compounding these deleterious health effects – and separating individuals from loved ones and support networks – onto the risk of imminent infection from a lethal disease crosses the threshold from unconstitutionally unreasonable to morally cruel. B. Under a Deliberate Indifference Standard, Post-Conviction Subclass Members’
Eighth Amendment Rights Are Being Violated. To demonstrate a violation of the Eighth Amendment, convicted persons must show both an objectively substantial risk of serious harm and that prison officials subjectively “acted with deliberate indifference to inmate health or safety” towards the hazardous condition in question. Palmer, 193 F.3d at 352. Courts find deliberate indifference when a detained person can show: (1) “that he is incarcerated under conditions posing a substantial risk of serious harm,” and (2) “that the official was deliberately indifferent to inmate health or safety.” Hare, 74 F.3d at 648 (citing Farmer v. Brennan, 511 U.S. 825 (1994)). A “condition of confinement that is sure or very likely to cause serious illness and needless suffering” to someone detained – which includes “exposure of inmates to a serious, communicable disease”—is precisely the type of serious harm that the Eighth Amendment protects against. Helling, 509 U.S. at 33 (prison officials must protect against “exposure of inmates to a serious
49 Melissa Neal, Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail, Justice Policy Institute (2012), http://www.justicepolicy.org/uploads/justicepolicy/documents/bailfail.pdf.
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communicable disease); Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation to protect [forcibly confined] inmates from infectious disease.”); see also Farmer, 511 U.S. at 833 (“[H]aving stripped [prisoners] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.”); Johnson v. Epps, 479 Fed. App’x 583, 59192 (5th Cir. 2012) (holding that a policy that forced inmates to use unsterilized barber clippers constituted deliberate indifference).
1. Plaintiffs are objectively at a substantial risk of serious harm COVID-19 is the quintessential “serious” and “communicable disease” from which the Constitution requires incarcerated people be protected. Helling, 509 U.S. 25 at 33-34. To date, this disease has no preventative cure or effective treatment. It can cause severe pain, and in even mild and moderate cases, it can feel like “drowning in [one’s] own blood,” with even young people in good health feeling like “they’ve been hit by a truck.” See Compl. ¶ 35. It has ushered nationwide shutdowns and an unprecedented toll of death and destruction, particularly among medically vulnerable populations. There can be no dispute that the risk of contracting COVID-19 is objectively unacceptable, particularly for medically vulnerable individuals.
2. Defendants have acted and are continuing to act with subjective indifference towards Plaintiffs’ substantial risk of harm.
Under the second prong of the deliberate indifference standard, the Fifth Circuit asks whether the official “knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Jones v. Texas Dep't of Criminal Justice, 880 F.3d 756, 759 (5th Cir. 2018). A detained person “does not need to show that death or serious illness has yet occurred to obtain relief. He must show that the conditions pose a substantial risk of harm.” Gates v. Cook, 376 F.3d 323, 339 (5th Cir. 2004) (emphasis added). In Gates, where
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individuals on Death Row challenged overheated temperatures as violating the Eighth Amendment, the Fifth Circuit upheld a finding that the plaintiffs faced a substantial risk of serious harm based on expert testimony, such as that produced in this case, substantiating a possibility of death. Cook, 376 F.3d at 339.
Even under the Eighth Amendment’s standard that applies to inmates who have been convicted, immediate injunctive relief is appropriate. That is because Defendants have certainly known of and disregarded an excessive risk to detainee health or safety. Wilson v. Seiter, 501 U.S. 294, 303 (1991); Honshul v. Foti, No. 94-30723, 1995 WL 153425, at *2-3 (5th Cir. Mar. 30, 1995).
With respect to an impending infectious disease like COVID-19, deliberate indifference is satisfied when corrections officials “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” even when “the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33 (holding that a prisoner “states a cause of action . . . by alleging that [corrections officials] have, with deliberate indifference, exposed him to conditions that pose an unreasonable risk of serious damage to future health”); see also Hope v. Pelzer, 536 U.S. 730, 738 (2002) (court “may infer the existence of [deliberate indifference] from the fact that the risk of harm is obvious” (citing Farmer, 511 U.S. at 842)). See also Gates v. Collier, 501 F.2d 1291, 1300 (5th Cir. 1974) (prison conditions, including the fact that “inmates with serious contagious diseases are allowed to mingle with the general prison population,” violate the Eighth Amendment).
This Court need not “await a tragic event” to find that Defendants are maintaining unconstitutional conditions of confinement amid a global pandemic. See Helling, 509 U.S. at 33. So long as the risk of serious harm is “likely,” as it is here, the Eighth Amendment is violated, even if “the complaining inmate shows no serious current symptoms,” and “the possible infection
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might not affect all of those exposed.” Id. Here, amid this global pandemic which has been front page news every day for months, it
cannot be seriously disputed that any government officials, including Defendants, are unaware of the risks posed by the coronavirus.50 Through government orders,51 CDC guidance aimed at jails,52 and nationwide publications,53 Defendants have been made well aware of the risks to incarcerated people. The Sheriff’s own communications and announcements emphasize this awareness.54 Similarly, the widespread public discussion regarding the heightened risk to medically vulnerable people makes abundantly clear that Defendants are aware of the mortal peril that Jail conditions pose to such individuals.
In addition, the overwhelming medical and scientific consensus is that social distancing of at least six feet is required to reasonably reduce the risk of transmission of the novel coronavirus.

50 This is particularly true given the death from coronavirus of a deputy sheriff in the parish, Sergeant Gregory Warren,

in April of this year. See Lea Skene, East Baton Rouge Deputy — 'A Dedicated Public Servant' — Dies from

Coronavirus,

Sheriff

Says,

The

Advocate

(Apr.

5,

2020),

https://www.theadvocate.com/baton_rouge/news/coronavirus/article_27ecdcac-7759-11ea-9ab3-

e72613b104ed.html.

51 See Executive Order 2020-27 (Mar. 13, 2020), https://gov.louisiana.gov/assets/ExecutiveOrders/27-JBE-2020COVID-19.pdf; Executive Order (May 15, 2020), https://gov.louisiana.gov/assets/Proclamations/2020/58-JBE2020.pdf.

52 Ctrs. for Disease Control & Prevention, Correctional and Detention Facilities, (May 26, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/index.html.

53 See David Mills & Emily Galvin-Almanza, As Many as 100,000 Incarcerated People in Our Prisons Will Die from the Coronavirus, Unless the US Acts Now, Bus. Insider (Apr. 2, 2020), https://www.businessinsider.com/failure-torelease-prisoners-is-condemning-thousands-to-death-2020-4; Anna Flagg & Joseph Neff, Why Jails Are So Important in the Fight Against Coronavirus, N.Y. Times (Mar. 31, 2020), https://nyti.ms/3aIBHjv; Timothy Williams et al., ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars, N.Y. Times (Mar. 30, 2020), https://nyti.ms/2Jmnf4z.

54 Lea Skene and Jacqueline DeRoertis, East Baton Rouge Sheriff: It’s Only a Matter of Time Before Coronavirus

Arrives

in

Jail,

The

Advocate

(Mar.

17,

2020),

https://www.theadvocate.com/baton_rouge/news/coronavirus/article_be4301c6-6887-11ea-b794-

ab2c5dcccad8.html.

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The CDC,55 the American Medical Association,56 the American Red Cross,57 and the Louisiana Department of Health58 have all concluded that social distancing is essential to preventing
transmission of the deadly infection. The CDC itself describes social distancing as “a cornerstone
of reducing transmission of respiratory diseases such as COVID-19,” as “[t]he best way to prevent illness,” and as “extra important” for vulnerable individuals.59 Defendant Gautreaux concedes this
point, imploring his employees to “please take all necessary precautions and use all available
equipment and resources to protect themselves not only at work, but any time they must be out in the community.”60
Officials’ indifference to the significant risk of permanent damage and death to the
Medically Vulnerable Subclass is even more unacceptable. It is well-documented that these
individuals face a risk of death or permanent organ damage far in excess of the rest of the
population. See Rottnek Decl. ¶ 61; Hassig Decl. ¶ 4. This risk is evident in the COVID-19 death
toll to date—for instance, in New York state, almost 90% of reported COVID-19 deaths involved at least one comorbidity, according to the state’s department of health.61 Defendants’ refusal or
55 Ctrs. for Disease Control & Prevention, Social Distancing, Quarantine, and Isolation (Apr. 4, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html; Ctrs. for Disease Control & Prevention, How to Protect Yourself & Others (Apr. 13, 2020) (explaining the paramount importance of social distancing, even if one is already taking other precautions such as a mask). 56 AMA, AHA, ANA: #StayHome to confront COVID-19, Am. Medical Ass’n (Mar. 24, 2020), https://www.amaassn.org/press-center/press-releases/ama-aha-ana-stayhome-confront-covid-19. 57 Coronavirus – What Social Distancing Means, Am. Red Cross (Apr. 14, 2020), https://www.redcross.org/aboutus/news-and-events/news/2020/coronavirus-what-social-distancing-means.html. 58 Defending Against Covid-19, La. Dep’t of Health, http://ldh.la.gov/index.cfm/page/3938#spread (last visited May 26, 2020). 59 See Ex. 3 to Compl., Ctrs. for 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/2019-ncov/community/correction-detention/guidancecorrectional-detention.html. 60 Lea Skene, East Baton Rouge Deputy — 'A Dedicated Public Servant' — Dies from Coronavirus, Sheriff Says, The Advocate (Apr. 5, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_27ecdcac-7759-11ea9ab3-e72613b104ed.html. 61 NYSDOH COVID-19 Tracker, N.Y. State Dep’t of Health, https://covid19tracker.health.ny.gov/ (last visited May
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inability to provide circumstances that would limit the subclass’s exposure to the virus constitutes deliberate indifference. At this point, only release will sufficiently protect the medically vulnerable from their very real risk of death. See, e.g., Cameron v. Bouchard, -- F. Supp.3d --, 2020 WL 2569868, at *24 (E.D. Mich. May 21, 2020) (“Considering the weight of the public health evidence demonstrating the medically-vulnerable population’s unique, specific, and lifethreatening susceptibility to COVID-19—paired with the communal nature of jail facilities, the Court finds that home confinement or early release is the only reasonable response to this unprecedented and deadly pandemic.”).
While the risk is great to everyone in the Jail, the members of this subclass have conditions rendering them exceptionally vulnerable to death or serious harm if exposed to COVID-19. As a result, there is no practicable way to ensure that they can avoid infection and no practicable way to ensure that, if infected, they receive prompt and adequate medical treatment within the Jail. Hassig Decl. ¶ 4. Serious illness is substantially likely, and older people and those with underlying medical conditions, such as lung disease, heart disease, or diabetes, are more likely to develop serious illnesses. Id. Therefore, their continued detention is a grave risk to their lives and violates the Constitution.
In the face of this awareness, Defendants’ ongoing confinement of Plaintiffs is deliberately indifferent to the risks caused by this virus and must be remedied. “Failing to take reasonable measures to abate [risk]” demonstrates disregard of such risk. Farmer, 511 U.S. at 847. Accordingly, Plaintiffs have shown that they are likely to succeed on the merits of their claims. III. THE PUBLIC INTEREST AND BALANCE OF EQUITIES WEIGH HEAVILY IN
PLAINTIFFS’ FAVOR.
26, 2020).
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Where, as here, the government is a party to the case, the third and fourth injunction factors—the balance of the equities and the public interest—merge. Nken v. Holder, 556 U.S. 418, 435 (2009); El Paso Cty., Texas v. Trump, 407 F. Supp. 3d 655, 665 (W.D. Tex. 2019). As an initial matter, the public interest is served by the protection of constitutional rights. See Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th Cir. 1996); Cohen v. Coahoma Co., 805 F. Supp. 398, 408 (N.D. Miss. 1992).
The balance of equities and the public interest also favor release of the Medically Vulnerable Subclass members who, as a practical matter, cannot be constitutionally held in the Jail at this time. Release of these individuals will conserve the Jail’s resources and reduce the demands on Jail staff, including guards and nurses. Further, releasing medically vulnerable individuals is the only way to eliminate the unacceptable risk to their health and the concomitant demand on public health resources—inside the jail and in the broader community —that will result when they become infected.
A worsened outbreak at the Jail has the potential to create a “tinderbox” scenario that drains the Baton Rouge metropolitan area of limited medical resources, including intensive care unit beds and ventilators.62 In Louisiana, the COVID-19 outbreak has already resulted in unprecedented public health demands that have strained the local health care system.63
Recently, the Western District of Louisiana noted in recommending release of 13 medically vulnerable individuals from ICE detention, that “public health and safety are served best by rapidly decreasing the number of individuals detained in confined, unsafe conditions.” Dada v. Witte, No.
62 New Model Shows COVID-19 Death Toll is 100,000 Higher Than Current Projections, ACLU.org (Apr. 22, 2020), https://www.aclu.org/press-releases/new-model-shows-covid-19-death-toll-100000-higher-current-projections. 63 See Ryan Whirty, As COVID-19 cases increase, La. hospitals take care to ensure they remain resourced, The Louisiana Weekly (Apr. 20, 2020), http://www.louisianaweekly.com/as-covid-19-cases-increase-la-hospitals-takecare-to-ensure-they-remain-resourced/.
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1:20-cv-00458-DDD-JPM at *27 (Report and Recommendation) (adopted May 22, 2020). And, as the Western District of Texas explained in in Vazquez Barrera, “an outbreak among the . . . detainee population will inevitably spread through the surrounding community, as MPC staff members, who live outside the detention facility, will be exposed to sick detainees . . . [and] will put additional strain on hospitals and health care resources in the community.” 2020 WL 1904497, at *7. United States v. Raihan, No. 20-cr-68-BMC- JO, Proc. at 10:12-19 (E.D.N.Y. Mar. 12, 2020), ECF No. 20 (“[t]he more people we crowd into that facility, the more we’re increasing the risk to the community”).
The consensus of public health expertise is in accord. See supra Section J. This immediate, concrete interest in health and life must, in any humane system of justice, outweigh a state’s abstract penological interest in continued imprisonment of human beings. IV. IMMEDIATE RELEASE IS OF MEDICALLY VULNERABLE SUBCLASS
MEMBERS IS THE ONLY EFFECTIVE REMEDY FOR PLAINTIFFS’ UNLAWFUL DETENTION, WHICH THE COURT HAS AMPLE AUTHORITY TO ORDER. The Court has ample authority under 28 U.S.C. § 2241 and independently under Rule 65 to issue the release of detained persons—a remedy that has been ordered by numerous courts across the country in recent weeks. Habeas invests in federal courts broad, equitable authority to “dispose of the matter as law and justice require,” 28 U.S.C. § 2243, as the “very nature of the writ demands that it be administered with the initiative and flexibility.” Harris v. Nelson, 394 U.S. 286, 292 (1969). While it is clear in this Circuit that habeas authorizes challenges to the fact or duration of detention, there is more ambiguity about whether habeas – authorizes challenges to conditions of
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confinement.64 See Poree v. Collins, 866 F.3d 235, 244 (5th Cir. 2017) (observing that “the Supreme Court has not foreclosed” habeas challenges for conditions claims and “declin[ing] to address whether habeas is available only for fact or duration claims.”). In any event, this habeas petition does not challenge conditions of confinement in the way this purported distinction imagines. By this motion, Medically Vulnerable Subclass members are not seeking judicial intervention in order to alleviate harsh conditions; it is precisely because there is no judicial possibility of remediating their unconstitutional confinement that they are challenging the very fact of their confinement. Vazquez-Berrera, 2020 WL 1904497, at *4 (“The mere fact that Plaintiffs’ constitutional challenge requires discussion of conditions in immigration detention does not necessarily bar such a challenge in a habeas petition.”); see also Dada v. Witte, No. 1:20-CV00458, ECF No. 17 at 9 (W.D. La. Apr. 30, 2020) (Report and Recommendation) (explaining that “the remedy for conditions claims is generally corrective. The remedy for fact claims, however, generally terminates the detention altogether, or alters it such that a new form of custody or control is imposed” and recommending release of 13 petitioners under § 2241) adopted, id., Dkt 24.
As such, they seek “relief from unlawful imprisonment or custody.” Pierre v. United States, 525 F.2d 933, 935-36 (5th Cir. 1976); see also Poree, 866 F.3d at 244 (petition seeking transfer to facility with less restrictive conditions “properly sounds in habeas.”). See also Malam, 2020 WL 1672662, at *3 (“where a petitioner claims no set of conditions would be sufficient to protect her constitutional rights, her claim should be construed as challenging the fact, not conditions, of her confinement and is therefore cognizable in habeas.”). Habeas confers “broad discretion in conditioning a judgment granting habeas relief . . . ‘as law and justice require’ ”.
64 Plaintiffs do seek, under Section 1983, an injunction mandating changes to conditions in the facility. For Medically Vulnerable Subclass members, however, because those conditions will not abate the acute risk they face, release pursuant to habeas is proper.
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Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (quoting 28 U.S.C § 2243). That authority includes an order of release, Boumediene v. Bush, 553 U.S. 723, 779 (2008), so as “to insure that miscarriages of justice . . . are surfaced and corrected.” Harris v. Nelson, 395 U.S. 286, 291 (1969).
Separately, under Rule 65, Section 1983 and a court’s inherent equitable authority to remedy unconstitutional government conduct, courts may issue “orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011); see also Duran v. Elrod, 713 F.2d 292, 297- 98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (affirming order releasing low-bond individuals in pretrial detention as necessary to reach a population cap); Mobile Cty. Jail Inmates v. Purvis, 581 F. Supp. 222, 224-26 (S.D. Ala. 1984) (exercising remedial powers to order a prison’s population reduced to alleviate unconstitutional conditions.) V. THE COURT SHOULD NOT REQUIRE PLAINTIFFS TO PROVIDE SECURITY
PRIOR TO ISSUING A TEMPORARY RESTRAINING ORDER. Courts have discretion to waive the Rule 65(c) requirement that the movant for a temporary restraining order provide security. “The Fifth Circuit has acknowledged that the amount of the security is within the discretion of the district court, who can elect to impose no security at all.” New Orleans Home for Incurables Inc. v. Greenstein, 911 F. Supp 386, 412-13 (E.D. LA 2012) citing City of Atlanta v. Metropolitan Atlanta Rapid Transit Authority, 636 F.2d 1084, 1094 (5th Cir. Unit B Feb. 13, 1981). District courts in this circuit routinely exercise this discretion to require no security in cases brought by indigent or incarcerated people. See, e.g., Schultz v. Alabama, 330 F. Supp. 3d 1344, 1376 (N.D. Ala. 2018) (county prisoners); Campos v. I.N.S., 70 F. Supp. 2d 1296, 1310 (S.D. Fla. 1998) (indigent immigrants). This Court should do the same here.
CONCLUSION For these reasons, Plaintiffs ask this Court to issue a temporary restraining order and
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ordering the release of Medically Vulnerable Subclass members. Respectfully submitted, this 27th day of May, 2020.

/s/ David J. Utter David J. Utter (LA Bar No. 23236) William R. Claiborne (GA Bar No. 126363)* FAIR FIGHT INITIATIVE 410 East Bay Street Savannah, Georgia 31401 (912) 236-9559 Telephone (912) 236-1884 Facsimile david@fairfightinitative.org will@fairfightinitative.org Attorneys for Plaintiffs
*Pro Hac Vice motion pending

/s/Miriam R. Nemeth______________ Thomas B. Harvey (MBE #61734MO)* Miriam R. Nemeth (DC Bar No. 1028529)** Tiffany Yang (DC Bar No. 230836)* ADVANCEMENT PROJECT NATIONAL OFFICE 1220 L Street NW, Suite 850 Washington, DC 20005 (202) 728-9557 Telephone tharvey@advancementproject.org mnemeth@advancementproject.org tyang@advancementproject.org Attorneys for Plaintiffs

*Pro Hac Vice motions pending ** Lead Attorney for Plaintiffs

/s/ Lillian S. Hardy______________ Lillian S. Hardy (DC Bar No. 991282)* Hogan Lovells US LLP 555 Thirteenth Street NW Washington, DC 20004 (202) 637-5884 Telephone lillian.hardy@hoganlovells.com Attorneys for Plaintiffs

/s/ William P. Quigley William P. Quigley (LA Bar No. 00769) Loyola University New Orleans 7214 St. Charles Avenue Campus Box 902 New Orleans, LA 70117 Attorney for Plaintiffs

*Pro Hac Vice motion pending

/s/ Baher Azmy Baher Azmy (NY Bar No. 2860740)* Omar Farah (NY Bar No. 4641247)* Brittany Thomas (NY Bar No. 5683834)* CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 11201 (212) 614-6427 Telephone bazmy@ccrjustice.org ofarah@ccrjustice.org bthomas@ccrjustice.org Attorneys for Plaintiffs

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*Pro Hac Vice motions forthcoming CERTIFICATE OF SERVICE
I hereby certify that on May 27, 2020 at approximately at 11:00 a.m. (EST) a copy of the foregoing was sent to all parties via electronic mail upon the following:
Michael P. Schillage Assistant Parish Attorney Office of the East Baton Rouge Parish Attorney 222 St. Louis Street, Suite 902 Baton Rouge, LA 70803
MSchillage@brla.gov Catherine St. Pierre Erlingson Banks, PLLC One American Place 301 Main Street Suite 2110 Baton Rouge, LA 70801 cstpierre@erlingsonbanks.com /s/ David J. Utter David J. Utter
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 Case 3:20-cv-00278-BAJ-SDJ Document 67 06/09/20 Page 1 of 29

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

CLIFTON BELTON, JR., JERRY BRADLEY, CEDRIC FRANKLIN, CHRISTOPHER ROGERS, JOSEPH WILLIAMS, WILLIE SHEPHERD, DEVONTE STEWART, CEDRIC SPEARS, DEMOND HARRIS, and FORREST HARDY, individually and on behalf of all others similarly situated,

Plaintiffs,

Case No. 3:20-cv-000278-BAJ-SDJ

v.

SHERIFF SID GAUTREAUX, in his official capacity as Sheriff of East Baton Rouge; LT. COL. DENNIS GRIMES, in his official capacity as Warden of the East Baton Rouge Parish Prison; CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE,

Defendants.

PETITIONERS’ REPLY TO RESPONDENTS’ OPPOSITIONS TO EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER

SUPPLEMENTAL FACTUAL BACKGROUND

As described in the more than twenty sworn declarations of people detained at the Jail,

Respondents have failed to protect Petitioners during the COVID-19 pandemic and are incapable

of implementing the social distancing necessary to prevent another COVID-19 outbreak. In an

effort to demonstrate compliance with the CDC’s COVID-19 guidance for carceral facilities,

Respondents rely primarily on the existence of their own COVID-19 policies that purportedly

govern the staff’s conduct at the Jail and the sworn declaration of Warden Grimes. R. Doc. 35-7

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(Grimes Decl. ¶ 27) (hereinafter “Grimes Decl.”).1 But the question of whether Respondents, in practice, adhere to any given policy is unanswered by the mere existence of written policies, and Warden Grimes offers no evidence showing he has spent any significant time in the Jail observing the actions of his staff to ensure actual compliance with such policies.
In detailed contrast, Petitioners timely filed an additional 13 sworn declarations by putative class members in support of their motion for temporary restraining order. R. Doc. 39 (Notice of Filing of Declarations). This testimony corroborates the existing record regarding the inability to social distance, medical neglect (particularly to those with known medical vulnerabilities), retaliation towards those seeking medical care, punitive use of solitary confinement as a form of medical quarantine, failure to provide adequate information about COVID-19, and failure to provide adequate supplies of hygiene products, sanitation products, and personal protective equipment at the Jail. Based on his inspection of the jail and his review of the declarations, Dr. Fred Rottnek confirms these deficiencies and opines that the immediate release of the medically vulnerable is critical. See Ex. 1, Rottnek Suppl. Decl. ¶¶ 30-31.
Collectively, twenty-three people detained throughout numerous housing units in the Jail in an overlapping and condensed time period speak with one voice about their experiences and make the record clear. Medically vulnerable Petitioners are at a particularly grave and ongoing risk of severe illness and death from COVID-19 in the Jail. Respondents are aware of this substantial risk of serious harm which has not been—and cannot be—sufficiently mitigated by Respondents’ actions.2
1 Both sets of Respondents refer to the same declaration from Warden Grimes throughout their briefs, and Petitioners cite this declaration as evidence of the practices of both sets of Respondents. 2 Rottnek Suppl. Decl. ¶¶ 2, 11-19, 22-24.
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I. RESPONDENTS’ REFUSAL TO TEST DETAINEES FOR COVID-19 REVEALS THE DEFICIENCY IN THEIR DATA AND DEMONSTRATES THEIR FAILURE TO MEASURE THE PANDEMIC’S SPREAD
Respondents’ assertion concerning their “successful” handling of the COVID-19 pandemic is belied by their own actions. Respondents first claim that the “number of positive cases of COVID-19 have consistently gone down since May 4, 2020,” and that “[t]he number of new infections in the jail has not increased since May 12, 2020,” Grimes Decl. ¶¶ 57, 60. But Respondents fail to account for their practice of refusing to test symptomatic detainees, a fact well documented by Petitioners’ evidentiary record, see infra. The effect of Respondents’ practice is to deliberate ignore the risk posed to the medically vulnerable by presymptomatic, asymptomatic, and mildly symptomatic people from whom medically vulnerable people cannot social distance. Cf. R. Doc. 42-4 at 8 (admitting they do not test asymptomatic or presymptomatic detainees). Accordingly, a single a-contextual data point does not and cannot accurately reflect the number of positive COVID-19 cases in the Jail; Respondents’ failure to adequately measure and track the spread of COVID-19 inside the Jail is itself an indication of neglect and deliberate indifference.
II. THE ADDITIONAL DECLARATIONS OF PUTATIVE CLASS MEMBERS CONFIRM THAT RESPONDENTS HAVE PLACED THE MEDICALLY VULNERABLE SUBCLASS AT GRAVE RISK OF HARM3 a. Social distancing is impossible at the Jail.
Putative class members confirm that social distancing is “impossible” in the Jail and that guards don’t even “try to keep [detainees] six feet apart.” R. Doc. 39-5 ¶ 12 (“Denning Decl.”); R. Doc. 39-12 ¶ 6 (“Stirgus Decl.”); cf. R. Doc. 21-1 at 7. The holding tanks in central booking force people to “sleep shoulder to shoulder on the wet, nasty floor that they barely clean” and share
3 Petitioners incorporate by reference the factual recitation provided in their motion for temporary restraining order. R. Doc. 21-1 at 6-21. Petitioners focus here on summarizing the additional declarations filed on June 5, 2020.
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an unsanitized latrine covered with feces and urine. R. Doc. 39-8 ¶ 4 (“Mancuso Decl.”). These tanks often hold forty to fifty people, Mancuso Decl. ¶ 4, but social distancing is not possible even for a group of twenty-five, R. Doc. 39-2 ¶ 5 (“Vinning Decl.”). People can be kept in central booking for upwards of a week and a half before being moved to another line in the Jail. Vinning Decl. ¶ 5.
And social distancing is not possible in the housing units. People are at most a few feet from each other on their beds, Denning Decl. ¶ 12; R. Doc. 39-6 ¶ 7 (“Tasco Decl.”); Stirgus Decl. ¶ 5, “not even arms-length apart from each other,” R. Doc. 39-14 ¶ 7 (“Weatherspoon Decl.”), and the beds are “welded together” in certain housing units, Stirgus Decl. ¶ 5; Tasco Decl. ¶ 7. There is also “no way to social distance” in the day rooms, where up to “120 people [are] piled on top of each other without space” and the tables are bolted to the ground. Denning Decl. ¶ 12; Tasco Decl. ¶ 6. There is no space to social distance when using the phones, watching television, or in the bathroom. Mancuso Decl. ¶ 11; Denning Decl. ¶ 13 (“always a traffic jam” in the bathroom, sinks and showers are less than a foot apart, and water routinely splashes from one to the next). Nor is it possible to social distance in the infirmary, R. Doc. 39-9 ¶ 13 (“Evans Decl.”), or the condemned COVID-19 solitary confinement blocks of the Jail, R. Doc. 39-4 ¶ 18 (“Thomas Decl.”); R. Doc. 39-11 ¶ 11 (“Alford Decl.”).
In opposition, Warden Grimes claims that Jail staff has “worked to ensure social distancing guidelines by (1) allowing limited or curtailed recreation4 to reduce movement, (2) only allowing a limited number of inmates their hall time at a specific time, and (3) require that inmates sleep ‘head to toe.’” Grimes Decl. ¶ 27. He further claims that the large cafeteria “Chow hall” has been
4 Witnesses explain that this “recreation” is, at most, one 15- to 30-minute trip outside once since the Jail began its quarantine and that only some detainees were able to participate. Mancuso Decl. ¶ 12; Vinning Decl. ¶ 16; Stirgus Decl. ¶ 6; Tasco Decl. ¶ 14.
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closed, “[p]ill call” is now on the line to “reduce movement,” and that during count, detainees are ordered to “social distance as much as possible.” Id. ¶¶ 24, 25, 30. However, these policies fail to account for the realities of the Jail’s infrastructure and layout, as testified to by numerous detainees at the Jail (and a correctional health expert), including (a) the limited space in the sleeping halls, holding tanks, and day rooms, and (b) the proximity of beds, furniture (much of it bolted to the floor), toilets, showers, sinks, and communal items. The inability to social distance in these spaces—the CDC’s “cornerstone” of protection against COVID-195—of the Jail remains uncontradicted by Respondents’ conclusory assertions. Further, Respondents admit that they require all detainees on a wing to gather for roll call, effectively undermining all other efforts. Grimes Decl. ¶ 29; see also R. Doc. 21-6 (Rogers Decl. ¶ 48); R. Doc. 21-7 (Hardy Decl. ¶ 8); R. Doc. 21-9 (Spears Decl. ¶ 17). Even taking Respondents’ efforts into account, the record demonstrates that no action, short of release, will provide constitutionally adequate confinement for the medially vulnerable.
b. Respondents’ medical neglect and retaliatory actions are particularly dangerous in the midst of a viral pandemic.
Respondents’ briefs are devoid of any details or factual support regarding the medical care that detainees purportedly receive at the Jail. The Sheriff Respondents attest solely that temperatures and COVID-19 symptoms are monitored in quarantined areas and that detainees’ symptoms are closely monitored in isolation. R. Doc. 35-2 at 13-14. These conclusory assertions are supported solely by conclusory statements in Warden Grime’s declaration; Respondents provide no further citation or evidentiary support. See Grimes Decl. ¶¶ 41, 46.
The City/Parish’s brief is similarly deficient. It claims without citation that “[i]n the event
5 R. 4-4 at 4 (CDC Interim Guidance on Management of Coronavirus Disease 2019 in Correctional and Detention Facilities).
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an inmate has symptoms of COVID-19, he is tested by Correcthealth staff” and relies on the approval of Dr. Catherine O’Neal, the Chief Infectious Disease Physician at Our Lady of the Lake Regional Medical Center (“OLOL”), who toured the jail for a only single day in early April. R. Doc. 38 at 8, 9; R. Doc. 38-2, ¶ 7 (Fontenot Decl.). Notably, the cited evidence for Dr. O’Neal’s approval is an email written not by Dr. O’Neal, but by Major Fontenot, an employee at the Jail. Id., Ex. D.6
Respondents’ meager factual showing fails to address the overpowering evidence submitted by Petitioners detailing the routine medical neglect and retaliation suffered by detainees. R. Doc. 21-1 at 8-9, 12-14, 16-18. One putative class member shared that jail medical staff treat them “like diseased rats” rather than “people.” Mancuso Decl. ¶ 10. Detainees were told that if they complained about COVID-19, they will “be shipped to Angola” or “punished,” Denning Decl. ¶ 8, and many are afraid to report their COVID-19 symptoms for fear of being forced into punitive solitary confinement, Weatherspoon Decl. ¶ 7; Vinning Decl. ¶ 18. Retaliation is not new to the Jail—for example, others have been forced into a “freezing cold” holding tank for five hours after seeking medical help prior to the pandemic, including a wheelchair bound putative class member with congestive heart failure and liver disease who requested help for an issue with his heart. Thomas Decl. ¶ 13.
The experiences of putative class members demonstrate that in violation of their own policies, Respondents also neglect detainees suffering from COVID-19 symptoms. Detainees have had to rattle the bars of their cells to get attention for a detainee who was vomiting and had a high fever (and the guards responded to the rattling with mace) or resort to other extreme measures, like
6 The City/Parish also references an unfiled affidavit by CorrectHealth that will be “supplemented upon receipt.” See, e.g., R. Doc. 38 at 7. As of the date of this filing, this affidavit has not been made part of the record.
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sending back their food twice in one day and refusing to cross over for roll call, to receive the medical attention they are entitled to. Mancuso Decl. ¶ 9; Vinning Decl. ¶ 11; Alford Decl. ¶ 22.
Symptomatic detainees are not tested for COVID-19 if their temperatures do not rise above 100 degrees, Weatherspoon Decl. ¶ 5; Mancuso Decl. ¶ 7, and others were even told that temperatures of 100 or 101 degrees were not high enough to warrant testing. Vinning Decl. ¶ 6. Those exhibiting serious symptoms were provided at most Tylenol, Mucinex, or Vitamin C as treatment, Stirgus Decl. ¶ 9; Tasco Decl. ¶ 10; some symptomatic people were only allowed one Tylenol pill throughout the span of their infection, R. Doc. 39-13 ¶ 9 (“Ware Decl.”), or were denied it altogether, Weatherspoon Decl. ¶ 6; Mancuso Decl. ¶¶ 5-6 (forced to purchase it from commissary). Respondents waited about a month after the pandemic reached the Jail to begin taking people’s temperatures, Weatherspoon Decl. ¶ 4; Stirgus Decl. ¶ 11, and staff either fail to take or fail to record the temperatures of detainees upon intake, Mancuso Decl. ¶ 4; Ware Decl. ¶ 3; R. Doc. 39-7 ¶ 23 (“Cage Decl.”). Symptomatic people were often left in general population, creating an increased risk of an unmanageable COVID-19 outbreak, Weatherspoon Decl. ¶¶ 4, 8. Those who request mental health care are denied it entirely.7 Denning Decl. ¶ 5.
c. The medical neglect of medically vulnerable people is especially dangerous in this pandemic.
Notably, no Respondent argues that specialized precautionary measures are given to the medically vulnerable in the Jail. Despite known medical vulnerabilities in the detained population, no tailored precautions are given to those who are at high risk of infection, illness, and death. Guards do not provide extra masks or other forms of assistance to the medically vulnerable. Tasco
7 In fact, contrary to Respondents’ assertions, see R. Doc. 35-30, ¶ 11 (Gissel Decl.); Grimes Decl. ¶ 53, R. Doc. 358 at 43 (claiming that to “ease the burden on inmates . . . all co-pays and fees were waived.”), detained people were charged for their medical care during this pandemic – one putative class member was charged $140 for Tylenol and a steroid shot after he had a fever and threw up blood in his sleep. Cage Decl. ¶ 7.
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Decl. ¶ 13. Staff even transfer people exhibiting known symptoms of COVID-19 onto general population units housing medically vulnerable detainees. Thomas Decl. ¶ 10.
Medically vulnerable people are instead treated exactly the same as every other detainee in the Jail, notwithstanding their heightened susceptibility to COVID-19. Like other detainees, they are placed on lines for COVID-19 positive patients before they have tested positive and, in some cases, when they do not even have COVID-19. Thomas Decl. ¶¶ 15-16. They were also shipped to Angola when they test positive for COVID-19, which reduces their ability to obtain hospitalbased the medical services that they are more likely to need. Cage Decl. ¶¶ 19-23.
As Petitioners outline and putative class members confirm, people are sent to COVID-19 lockdown before they receive their own test results, where they are exposed to others who have already tested positive for the virus. Vinning Decl. ¶ 18. The City/Parish admits to engaging in this dangerous practice, R. Doc. 38 at 8, which applies to the medically vulnerable and, contrary to Warden Grimes’s suggestion that it was limited to “the early stages of the pandemic,” this practice has continued into recent weeks. Thomas Decl. ¶¶ 16, 19. Jail staff often disregarded CDC guidelines and alleged Jail policies by failing to get near the lockdown lines, even to provide medically vulnerable detainees with essential items like food, because the staff “have families too.” Alford Decl. ¶¶ 16, 23 (noting he lost ten pounds while on lockdown due to lack of food). People on COVID-19 lockdown struggled to receive even potable water. Alford Decl. ¶ 21. And lockdown is also inaccessible for those with physical disabilities, such as wheelchair-bound putative class members who are unable to go into the shower or are not provided sufficient space to use their wheelchair in lockdown. Thomas Decl. ¶¶ 17-18.
In addition, those who have preexisting medical conditions rendering them vulnerable to COVID-19 are unable to obtain the medication or testing they need to manage their conditions,
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including people with high blood pressure, Weatherspoon Decl. ¶ 3 (no medication), diabetes,
Evans Decl. ¶ 7 (receives only sporadic blood sugar level tests); Cage Decl. ¶¶ 15, 26 (given only
half the medication he needs on a dangerously delayed schedule and refused the insulin pens his
wife could provide), and Hepatitis B, Denning Decl. ¶¶ 2, 3, 10 (no medication); R. Doc. 39-3 ¶ 4
(“Thomason Decl.”) (no medication). People with bronchitis and asthma have not been provided
the inhalers they need to protect their ability to breathe during this pandemic. Cage Decl. ¶ 3;
Alford Decl. ¶ 5.
Respondents’ assertions that “[n]o new [detainee] was moved to the quarantine line during
a fourteen day period” is inaccurate, Grimes Decl. ¶ 44, particularly with respect to the critical J01
line: the housing unit used to quarantine new individuals entering the facility from the community.
On J01, guards routinely take people on and off the line and interrupt the quarantine process. One
putative class member was quarantined on J01 for 22 days, during which time about forty to fifty
people cycled through the 40-man line. Thomason Decl. ¶ 6. Respondents’ conclusory assertions
regarding the lack of movement in quarantine, and even that detainees in isolation are provided sufficient food and water to meet their daily needs,8 Grimes Decl. ¶¶ 24, 26, 41, 44, 46, are belied
by the corroborating testimony of numerous detainees.
d. Failure to provide adequate information about COVID-19 or supplies for hygiene, cleaning, and personal protective equipment
8 The sole supporting piece of evidence is a partial log page reflecting a Sergeant’s actions on a single day, March 23, 2020, on only the “B-wing” of the Jail, that purportedly “show[s] water being offered at 06[0]0, 0830, and again at 10:30.” Grimes Decl. ¶ 26 & Ex. R, R. Doc. 35-7, 35-8. This partial piece of evidence is certainly insufficient to support the conclusion that the Jail routinely provides adequate provisions to detainees in COVID-19 lockdown. In addition, there is sufficient evidence before this Court from other litigation against the Jail indicating a widespread practice of jail staff entering information into logbooks that simply has not happened. See, e.g., Lewis ex rel. Johnson v. E. Baton Rouge Parish, No. 16-352-JWD-RLB, 2017 WL 2346838 (M.D. La. 2017), R. Doc. 38-3 (declarations from detainees noting that guards do not do their rounds, yet falsely log in the logbooks that they do); see also Zavala v. City of Baton Rouge/Parish of E. Baton Rouge, No. 17-656-JWD-EWD, 2018 WL 4517461 (M.D. La. 2018), R. Doc 197-13, pp. 30-31 (sworn report by Dr. Jeffrey Schwartz noting that comparing video with log book entries, staff logged having walked the cell block to check on the well-being of detainees 30-50% more often than video shows they did).
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Putative class members also corroborate Petitioners’ detailed assertions regarding Respondents’ failure to provide adequate cleaning supplies or wear PPE to protect against transmission and infection. R. Doc. 21-1 at 8, 9-10, 15-16. People are provided bandanas rather than masks due to the higher cost of masks, Ware Decl. ¶ 12, and the thin, porous cloth coverings are taken from one line to another, a sanitation concern given that the bandanas are often not washed properly,9 Stirgus Decl. ¶ 12; Thomas Decl. ¶ 21; Evans Decl. ¶ 27. Contrary to the Jail’s purported policies and training, most guards do not always wear their masks, Vinning Decl. ¶ 17; Alford Decl. ¶ 27, and they often do not wear gloves, Alford Decl. ¶¶ 18, 21; Evans Decl. ¶ 25, even after they test positive for the virus and return to work after only a few days off, Alford Decl. ¶ 26. Nurses do not always wear masks while distributing medication, Alford Decl. ¶ 27, nor do they change gloves or sanitize devices, like thermometers, between patients, Evans Decl. ¶ 11.
The cleaning chemicals are watered down, Mancuso Decl. ¶ 13, bleach is often not provided, Evans Decl. ¶ 24, and although cleaning supplies are scheduled to be provided twice a day, detainees sometimes “just get the dirty mop and water from the previous night” or are, at most, provided supplies every other day, Mancuso Decl. ¶ 14; Vinning Decl. ¶ 9; Ex. 1, Rottnek Suppl. Decl. ¶ 20 (the mop buckets he observed “contained brown, dirty water solutions”). To clean the tables, benches, and other high-touch surfaces on the line, detainees are forced to use rags, water, and the soap the jail issues them to wash their bodies. Ware Decl. ¶ 14. Detainees are often provided nothing to wipe their hands after they clean the line or use the bathroom, except their own uniforms. Evans Decl. ¶ 24. The Jail is described as “horrible,” “terrible,” and “nast[y],” Mancuso Decl. ¶ 14; Weatherspoon Decl. ¶ 9; Tasco Decl. ¶ 8, and the reopened condemned blocks
9 Moreover, although Respondents argue that the detainees’ bandanas are “laundered with Opticlean-V-Liquid with Bleach detergent in hot water,” R. Doc. 35-2 at 12, the cited exhibit and declaration provide only a schedule of face covering pickups and make no mention whatsoever of the method of cleaning. Grimes Decl. ¶ 23 & Ex. Q.
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of the Jail are even worse, Alford Decl. ¶ 14; Thomas Decl. ¶ 15.
A close look at Respondents’ cited evidence regarding PPE and cleaning protocols reveals
the meager depth of their challenges to Petitioners’ evidentiary record. See, R. Doc. 35-2 at 8,
11, 12. The only evidence offered that deputies do spray and clean certain portions of the housing
units is a report of a single instance of cleaning on a single day in mid-March on a female line in
the Jail. Grimes Decl. ¶ 19, Exhibit N. Especially given that a small minority of the detainees are
women, Grimes Decl. ¶ 4, this scant evidence fails to contradict the voluminous record of
Respondents’ lack of cleaning across other lines and areas in the jail.
In addition, the only evidence provided by Respondents regarding the provision of cleaning
supplies, such as detergents and disinfectants, suggests that these supplies are provided only twice
a week, Grimes Decl. ¶ 18, Exhibit M, rather than twice a day, and there is no evidence to contest
the chorus of Petitioners’ voices testifying that cleaning supplies are so diluted they are ineffective
or that guards fail to distribute them with adequate frequency. Finally, Petitioners do not challenge
whether there are sufficient supplies of personal protective equipment in the storage rooms of the
Jail. Rather, they testify that staff fail to properly wear PPE when interacting with detainees, regularly fail to provide gloves,10 and that the thin and poorly washed bandanas they have are insufficient to protect them from the virus—all points that Respondents fail to adequately rebuke.11
10 See, e.g., Evans Decl. ¶ 25; R. Doc. 21-6, Rogers ¶¶ 51, 12 (“prison says they won’t pass out gloves because they’re contraband”); R. Doc. 21-5 Shepherd ¶ 19; R. Doc. 21-6, Spears ¶ 24. 11 Although Respondents state there is a total of 92 positive cases in the jail, Grimes Decl. ¶ 51, earlier information indicates that as of May 14, 2020, 93 detainees had already been tested for the virus. R. Doc. 4-2. And although Respondents state that only three people have been transferred to an outside hospital facility related to COVID-19, Grimes Decl. ¶ 59, about eighteen detainees were transferred to Angola due to the seriousness of their COVID-19 cases, and some of the original eighteen remain at Angola. Cf. Jerry Iannelli, Louisiana’s Data on Coronavirus Infections Among Prisoners is Troubled and Lacks Transparency, The Appeal (May 1, 2020), https://theappeal.org/louisiana-doc-covid-19-data. Moreover, the record suggests this number undercounts the total number of people hospitalized due to COVID-19. An announcement from the Mayor’s Office indicated that by April 9, four people had been sent to the OLOL Hospital due to the coronavirus. R. Doc. 4, ¶ 78. The record further suggests that when people are hospitalized for COVID-19, they may be misclassified. Evans Decl. ¶ 18 (he was “in a coma and on a ventilator for most of the”
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Putative class members also corroborate the failure to provide adequate information regarding COVID-19 at the Jail. R. Doc. at 20-21. Jail staff “try to hide the coronavirus,” Cage Decl. ¶ 29, did not inform detainees that there were active COVID-19 cases in the Jail for two weeks, Mancuso Decl. ¶ 15, and even failed to inform detainees about basic precautionary measures like washing their hands or social distancing, Denning Decl. ¶ 11.
III. SUPPLEMENTAL EXPERT FINDINGS SUPPORT THE IMMEDIATE NEED FOR RELEASE
Dr. Fred Rottnek’s inspection of the Jail on June 5, 2020, further bolsters Petitioners’ testimony about the Jail’s inadequate response to this pandemic. Dr. Rottnek reached his findings even after the Jail prepared for the inspection by “cleaning the line[s] a lot more than usual,” “like they never did before,” and by having jail staff “threaten[] to retaliate [against detainees] by kicking [them] in the teeth, shutting off the phones and TV, and punishing [them] if [they] were not properly dressed and wearing [their] bandana masks when the inspector comes,” Mancuso Decl. ¶ 16; Cage Decl. ¶ 30; Evans Decl. ¶¶ 31, 33; Alford Decl. ¶ 32.
Based on his inspection of the jail and his review of declarations from the people detained inside, Dr. Rottnek determined that the Jail is noncompliant with the CDC’s guidelines in numerous ways. First, Dr. Rottnek found that social distancing is not possible within the Jail: the “current census” and “physical structure of the housing units do not allow social distancing”; people are not able to social distance in many lines (including the medical unit and COVID-19 positive units) due to the close proximity, “location and configuration of the bunks,” many of which were welded together or bolted to the floor; the close proximity of toilets and showers in
over two weeks he was at OLOL, but the Jail informed his father he was hospitalized for arthritis, not COVID-19); Grimes Decl. ¶¶ 49-50 (the first case of COVID-19 in the Jail was discovered because the detainee suffered from a drug overdose and was tested at the hospital).
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the bathrooms without physical barriers between them; and the small size of the holding tanks. Ex. 1, Rottnek Suppl. Decl. ¶¶ 17, 19, 20, 22. Dr. Rottnek also outlined the “incorrect[]” and “sporadic[]” use of personal protective equipment by staff, the fact that bandanas are considered “‘homemade masks’ by the CDC” and do not qualify as personal protective equipment, the degree of inadequate medical care at the Jail, “the dramatic state of disrepair,” the inadequate opportunities to sanitize living areas, among other deficiencies, and the lack of education and information about the virus, among other deficiencies. Id. ¶¶ 20, 22-24. Dr. Rottnek’s supplemental declaration effectively undermines Respondents’ argument that Petitioners’ release plans continue to expose them to the virus, an argument that functionally asserts Petitioners are safer inside the Jail. As Dr. Rottnek notes, however, jails are incredibly dangerous, and there is no way to keep medically vulnerable detainees in the East Baton Rouge Parish Prison sufficiently safe from the virus. Id. ¶¶ 2, 4, 25a.
Dr. Rottnek also confirms there is no evidence to indicate that being infected with COVID19 results in lasting immunity from the virus. Id. ¶ 20. There is no evidence that the novel coronavirus is remaining stable (with no mutations), that COVID-19 provides lasting antibody protection post-infection, or that a large majority (generally at least 70%) of the population has even been infected, and of course there has not yet been a vaccine developed for the virus. Id. The factual record in this case supports Dr. Rottnek’s caution: at least two of our Petitioners who have tested negative have also tested positive again. R. Doc. 21-8 (Bradley Decl. ¶¶ 8, 22); R. Doc. 2111 (Williams Decl. ¶¶ 13, 15).
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ARGUMENT I. BECAUSE THE PLRA DOES NOT APPLY TO § 2241 HABEAS PROCEEDINGS,
RESPONDENTS’ ATTEMPT TO INVOKE VARIOUS REQUIREMENTS OF THE PLRA IS ENTIRELY MISPLACED Respondents attempt to invoke various requirements under the Prison Litigation Reform Act (“PLRA”) throughout their briefs, including PLRA requirements to exhaust available administrative remedies, to narrowly draw preliminary relief, and to satisfy certain prerequisites before convening a three-judge panel for an order of release. In so doing, Respondents reveal a misunderstanding of the nature of Petitioners’ motion for temporary restraining order and of the relevant case law. The only claim currently before the Court in Petitioners’ emergency motion is their § 2241 habeas claim, wherein Petitioners challenge the fact, not the conditions, of their confinement. Petitioners’ § 1983 claim, which would fall under the purview of the PLRA, is not yet before this Court. The Fifth Circuit has made clear that, due to the nature of habeas proceedings and the legislative history surrounding the PLRA, “[t]he PLRA . . . does not apply to § 2241 proceedings.” Davis v. Fechtel, 150 F.3d 486, 490 (5th Cir. 1998). Numerous other courts of appeals are in accord. See, e.g., Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001); Walker v. O’Brien, 216 F.3d 626, 633-34 (7th Cir. 2000); McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997). Accordingly, Respondents’ invocation of the PLRA and its various requirements is inapposite. So too is Respondents’ reliance on various district court opinions12 regarding procedural hurdles under the PLRA, where the courts discussed claims sounding in
12 The district court opinions cited by the Sherriff Respondents on pages 60-62 of their opposition brief discuss procedural barriers and claims that sound in § 1983 and are therefore inapposite. Moreover, the voluminous record of inaction, indifference, and neglect here is easily distinguishable from the facts at issue in those cases.
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§ 1983, not § 2241 habeas.13 II. THIS COURT’S JURISIDICTION TO HEAR THIS CASE ARISES UNDER 28
U.S.C. § 2241 a. Valentine and Marlowe Do Not Foreclose Habeas Relief
Respondents’ argue that “the Fifth Circuit’s recent decisions in Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020) and Marlowe v. LeBlanc, [No. 20-30276], 2020 WL 2043425 (5th Cir. 2020) preclude this Court from granting [Petitioners’] motion for TRO”. See R. Doc. 35-2 at 2. Respondents misunderstand the relief Petitioners seek. Marlowe and Valentine both consider “conditions of confinement” claims under 42 U.S.C. § 1983 (“conditions claims”). But Petitioners here challenge the fact of their confinement under 28 U.S.C. § 2241 (“fact claims”). As such, the holdings in Marlowe and Valentine are not dispositive as to Petitioners’ claims. Respondents’ argument fails to appreciate this central difference.
Generally speaking, habeas claims challenge the fact of detention, while conditions claims are a vehicle to attack unconstitutional conditions of confinement and do not seek to undermine the underlying basis for detention within those conditions. See Cook v. Tex. Dep’t of Crim. Justice Transitional Planning Dep’t, 37 F.3d 166, 168 (5th Cir. 1994). But the mere fact that Petitioners’ challenge requires discussion of the conditions in the Jail “does not necessarily bar such a challenge in a habeas petition.” Vazquez Barrera v. Wolf, No. 4:20-CV-1241, 2020 WL 1904497,
13 Exhaustion for purposes of § 1983 is not properly before the court as the Temporary Restraining Order is limited
to Petitioners’ § 2241 habeas claims for release, which Respondents have waived by failing to raise substantively. See McGee v. Estelle, 722 F.2d 1206, 1213 (5th Cir. 1984) (“the defense of non-exhaustion is waived by the failure of the state’s legal officer to raise it at the proper time . . . . [and the waiver may be] implicit as well as explicit”). Petitioners note, however, that the PLRA requires exhaustion of only available administrative remedies, 42 U.S.C. § 1997(a), and the Jail’s own Inmate Grievance Procedure (“IGR”) explicitly does not apply to “matters outside the jurisdiction of the [Jail] such as . . . habeas corpus proceedings . . . and court decisions.” EBRPP Inmate Grievance Procedure at pg. 2 (emphasis added). How the IGR makes an administrative remedy “available” to habeas petitioners in light of this disclaimer is anyone’s guess. Id. at 805. Petitioners are prepared to provide further briefing on the issue of PLRA exhaustion if and when it is properly before this Court.
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at *4 (S.D. Tex. Apr. 17, 2020). This would be true even if this were a conditions case—the Fifth Circuit has not explicitly foreclosed habeas petitions based on conditions claims. See id. at *3-4.14 In a fact case like this, however, habeas relief is appropriate if a ruling in the petitioner’s favor would “automatically entitle [the petitioner] to accelerated release.” Id. at *4 (citation omitted).
Unlike the broad and detailed injunctions pursuant to 42 U.S.C. § 1983 sought in Marlowe and Valentine, the medically vulnerable subclass here seek their immediate release under 28 U.S.C. § 2241. Although Marlowe and Valentine imposed sweeping alterations to conditions and daily practices at the facility, see Valentine, 956 F.3d at 799 (noting injunction regulates prison conduct “in minute detail”), Petitioners here seek no changes in conditions at the Jail because there is no set of plausible conditions in the Jail that would prevent a deprivation of their constitutional rights. Courts in the Fifth Circuit have considered nearly identical claims to the ones at issue here and have determined that they were properly brought as fact claims under 28 U.S.C. § 2241. See Vazquez Barrera, 2020 WL 1904497, at *4; Dada v. Witte, No. 1:20-CV-00458, 2020 WL 2614616, at *1 (W.D. La. May 22, 2020).15 As the Court explained in Vazquez Barrera, in finding that the medically vulnerable plaintiffs were likely to succeed on the merits of their habeas claim, notwithstanding defendants’ mitigation efforts:
The current case is not one where such injunctive relief [the adoption of certain specific COVID-19 risk mitigation measures] is available. We are living in unprecedented times. . . . With no known vaccine or cure for COVID-19 and the highly contagious and asymptomatic nature of the novel coronavirus, as well as overwhelmed medical systems throughout our communities, our prisons, jails, and detention facilities are facing outbreaks that differ from any infectious disease outbreaks that have occurred in the past.
14 The Supreme Court has never explicitly foreclosed the use of habeas for conditions claims, either. See Boumediene v. Bush, 553 U.S. 723, 792 (2008). 15 Although these cases considered immigration detainees, it is well settled that “[i]mmigration detainees are civil detainees, and thus, entitled to the same constitutional due process protections as pretrial detainees.” See Vazquez Barrera, 2020 WL 1904497, at *5; Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
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Id.; see also Dada v Witte, 1:20-cv-00458, 2020 U.S. Dist. LEXIS 90911, at *16-17 (W.D. La. Apr.
30, 2020), report and recommendation adopted, 1:20-CV-00458, 2020 WL 2614616 (W.D. La.
May 22, 2020) (“ICE detainees who are at elevated risk of contracting COVID-19 in a detention
facility, and who seek immediate release, may do so through ‘fact or duration’ claims asserted under
28 U.S.C. § 2241”).16 Where unconstitutional conditions cannot be remedied, habeas corpus provides
the only form of redress for the subclass of medically vulnerable detainees.17
Defendant Gatreaux’s argument that he is not the proper party to this habeas petition cannot be
taken seriously. It matters nothing to the Court’s broad habeas power that the Sheriff does not have
independent authority under state law to make bail or release or other discretionary determinations.
See R. Doc. 35-2 at 49-50. The Sheriff is bound to comply with the “Constitution or laws . . . of the
United States,” 28 U.S.C. § 2243(c), and as the immediate custodian over the petitioners –i.e. the entity
that holds the keys to the jailhouse door, see Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004), Masingene
v. Martin, 19-CV-24693, 2020 WL 465587, at *2 (S.D. Fla. Jan. 27, 2020) (habeas jurisdiction pertains
over relevant “official most directly responsible for overseeing the contract facility”)—the Sheriff must
16 Numerous Courts outside the Fifth Circuit have reached the same conclusion. See, e.g., Essien v. Barr, No. 20CV-1034-WJM, 2020 WL 1974761, at *3 (D. Colo. Apr. 24, 2020) (“In theory, these causes of action are oil and water: a habeas claim may lead to an order releasing the prisoner or detainee or nothing at all; whereas a conditionsof-confinement claimant may only lead to an order requiring the government to improve the conditions of confinement, but not an order releasing the prisoner or detainee.”); Martinez Franco v. Jennings, No. 20-CV-02474CRB, 2020 WL 1976423, at *3 (N.D. Cal. Apr. 24, 2020) (“[I]t is “fairly well established” that a federal detainee can challenge the conditions of his confinement in an action brought under 28 U.S.C. § 2241.”); Doe v. Barr, No. 20-CV02141-LB, 2020 WL 1820667, at *8 (N.D. Cal. Apr. 12, 2020) (“[T]he court can address the plaintiff’s challenges to the conditions of confinement in a § 2241 petition.”); Malam v. Adducci, No. 20-10829, 2020 WL 1672662, at *3 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020) (“Supreme Court and Sixth Circuit precedent support the conclusion that where a plaintiff claims no set of conditions would be sufficient to protect her constitutional rights, her claim should be construed as challenging the fact, not conditions, of her confinement and is therefore cognizable in habeas”). 17 Petitioners will later seek injunctive relief on their Section 1983 claims on behalf of the broader class to ensure compliance with CDC Guidance; only at that point would the Marlowe and Valentine cases become relevant. Though the question is premature, Marlowe and Valentine would not dispose of subsequent Section 1983 injunction because the factual record, supported by the findings from an expert inspection, will be far stronger than the record considered in the emergency TRO posture presented in those cases.
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comply with orders from this Article III Court directing the Sheriff to release Petitioners. Further, habeas corpus is, “above all, an adaptable remedy,” Boumediene, 553 U.S. at 780, and federal courts retain “broad discretion in conditioning a judgment granting habeas relief . . . ‘as law and justice require’.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (quoting § 2243). That authority includes an order of release, Boumediene, 553 U.S. at 779, so as “to insure that miscarriages of justice within [the writ’s] reach are surfaced and corrected.” Harris v. Nelson, 395 U.S. 286, 291 (1969).
b. The Younger Abstention Doctrine does not apply; this Court has Jurisdiction The Sheriff Respondents alone argue that the Court should forego its “virtually unflagging obligation” to assert jurisdiction, citing the Younger abstention doctrine, which was designed to prevent a district court from interfering with “ongoing state proceedings.” R. Doc. 35-2 at 43 (citing Younger v. Harris, 401 U.S. 37 (1971)). But Younger abstention does not apply “simply because a pending state-court proceeding involves the same subject matter.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013). Petitioners here make no request to enjoin any pending state proceeding. R. Doc. 21-1 at 1-2. The Sheriff Respondents tellingly do not cite a single legal authority, and Petitioners have found none, for the proposition that Petitioners are attempting to intervene in a pending state court proceeding, and instead rely on conclusory assertions and an erroneous understanding of the relevant standard.18 R. Doc. 35-2 at 44-45. Relevant authority points to the opposite conclusion: this Court has jurisdiction. In rejecting the same argument the Sheriff Respondents make here, the court in McPherson v.
18 The Sheriff Respondents’ wholesale reliance on the Middlesex factors is outdated and misplaced; the Supreme Court in Sprint clarified that the Middlesex factors “were not dispositive.” Sprint, 571 U.S. at 81-82 (“Divorced from their quasi-criminal context, the three Middlesex conditions would extend Younger to virtually all parallel state and federal proceedings, at least where a party could identify a plausibly important state interest. That result is irreconcilable with our dominant instruction that, even in the presence of parallel state proceedings, abstention from the exercise of federal jurisdiction is the “exception, not the rule.”).
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Lamont, No. 3:20CV534 (JBA), 2020 WL 2198279, at *13 (D. Conn. May 6, 2020), explained that the relief sought by the petitioners did not “ask this Court to order the state courts to act to effectuate” their release, but instead asked the Court directly to “order Defendants . . . to release the members of the medically vulnerable subclasses, without imposing any requirement upon the state courts to act in any particular way.” McPherson, 2020 WL 2198279, at *13 (emphasis in original). Abstention is inapposite here. III. THE MEDICALLY VULNERABLE SUBCLASS IS LIKELY TO SUCCEED ON
THE MERITS OF THEIR CLAIMS Despite Respondents’ stated policies and procedures, the dire situation inside the Jail shows that Respondents are subjecting detainees to an unreasonable risk of harm in violation of pretrial detainees’ Fourteenth Amendment rights and are otherwise deliberately indifferent to the substantial risk faced by the medically vulnerable subclass, in violation of the Eighth Amendment.
a. The Continued Detention of Medically Vulnerable Pre-Trial Detainees Violates Those Petitioners’ Fourteenth Amendment Rights.
Most members of the medically vulnerable subclass—including Mr. Belton—are pretrial detainees entitled to Due Process protection under the Fourteenth Amendment. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). The Fourteenth Amendment forbids detention as punishment, and therefore the detention of pretrial class members must remain “nonpunitive in purpose and effect.” Zadvydas, 533 U.S. at 690; see also Bell v. Wolfish, 411 U.S. 520, 535 (1979). When detention is no longer “reasonably related to a legitimate goal,” it becomes an impermissible punishment. Wolfish, 441 U.S. at 539; Hare v. City of Corinth, 74 F.3d 633, 640 (5th Cir. 1996).
Respondents19 correctly cite the Bell standard, but their analysis minimizes the substantial and
19 Although the City/Parish mentions Petitioners’ Fourteenth Amendment rights in a section heading, their brief is curiously devoid of any analysis to refute Petitioners’ argument that they are likely to succeed on the merits of their Fourteenth Amendment claims. See R. Doc 38 at 18.
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likely imminent harm faced by those in the Jail who are medically vulnerable. See R. Doc. 35-2 Sheriff Opp. at 33 (citing Bell, 411 U.S. at 536-37). Petitioners do not dispute that “[t]he effective management of a detention facility is a valid objective that may justify imposition of conditions and restrictions on pretrial detention.” R. Doc. 35-2 at 34. But the question here is not whether the management of the Jail is a legitimate government purpose as a general matter or in normal times. The question of being subjected to an unreasonable risk under Bell turns on whether “detention of [Petitioners], who are at high risk of serious illness or death if they contract COVID-19, in [an environment] where social distancing and proper hygiene are impossible” reasonably relates to a legitimate governmental purpose. See Vazquez Barrera, 2020 WL 1904497, at *5. It clearly does not. See Shepherd v. Dallas Cty., 591 F.3d 445, 453-54 (5th Cir. 2009) (“When the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs . . . it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.” (quoting Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996)).
The court in Vazquez Barrera reached the same conclusion. 2020 WL 1904497, at *5. Finding that plaintiffs were likely to succeed on their due process claim, the court held that, “[r]equiring medically vulnerable individuals to remain in a detention facility where they cannot properly protect themselves from transmission of a highly contagious virus with no known cure is not rationally related to a legitimate government objective.” Id. at *6; see also Dada, 2020 U.S. Dist. LEXIS 90911, at *23 (“Petitioners may succeed on their substantive due process claims by . . . showing . . . that, due to their age, immune deficiencies, or other comorbidities, they face an elevated risk of contracting the virus, or suffering serious illness from it; that their particular circumstances also heighten these risks; and that preventive measures are difficult or impossible, leaving them
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unduly exposed to contracting the virus”). Respondents cannot rely on Marlowe and Valentine in this context. First, plaintiffs in those
cases were post-conviction detainees, and it is well established that the Fourteenth Amendment affords greater Due Process protection where, as here, the majority of the Petitioners have not been convicted of a crime. See Bell, 411 U.S. at 539; Hare, 74. F.3d at 639. Second, Respondents’ reliance on Valentine for the proposition that the “‘incidence of diseases or infections, standing alone,’ do[es] not imply unconstitutional conditions” minimizes the effect of the COVID-19 pandemic on this particular subclass. See R. Doc. 35-2 at 34-35; Ex. 1, Rottnek Suppl. Decl. ¶¶ 710, 20-23. This pandemic is “a novel and highly contagious disease” and is “unlike any ‘incidence of disease’ that our society has faced in generations.” Vazquez Barrera, 2020 WL 1904497, at *6. It is acutely felt by those who are already medically susceptible. As such, the Fourteenth Amendment requires that the Court grant habeas corpus here.20
b. Respondents’ Eighth Amendment Argument Downplays The Unprecedented Risks Associated With COVID-19, As Well As Their Inadequate Response
The conditions in this decrepit Jail to which medically vulnerable detainees are subject are so extreme that Petitioners meet and exceed the Eighth Amendment’s “subjective and objective” requirements as well. Valentine, 956 F. 3d at 801 (citing Farmer v. Brennan, 511 U.S. 825, 846 (1994)). Even though Respondents attempt to downplay the severity and impact of COVID-19, by their own admission the virus and disease impose an objectively serious harm to detainees, particularly the medically vulnerable: “COVID-19 can pose a risk of serious or fatal harm to prison
20 This Court can—based on the crisis that has been the history of the jail’s health care system, R. Doc. 4, ¶¶ 71-74, and the consistent evidence from Petitioners’ and witnesses’ sworn declarations—find that the City and Sheriff Respondents have a policy of denying adequate health care to people in the jail. See, e.g., O’Quin v. Gautreaux, No. 14-cv-98-BAJ-SCR, 2015 WL 1478194, *3 (M.D. La. Mar. 31, 2015) (citing Shepherd v. Dallas Cty., 591 F.3d 445, 453 (5th Cir.2009); Colbert v. City of Baton Rouge, No. 17-cv-28-BAJ-EWD, 2018 WL 344966, *6-7 (M.D. La. Jan. 9, 2018). Clearly Plaintiffs allege such a history in the instant matter. R. Doc. 4, ¶¶ 71-74.
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inmates and that certain inmates such as the plaintiff in Marlowe who was a diabetic is particularly vulnerable to the virus’s effect,” R. Doc. 35-2 at 31; see also Vazquez Barerra, 2020 WL 1904497, at *2 (“It cannot be contested that the novel coronavirus that causes COVID-19 is highly contagious, and that among those who develop COVID-19, many require extended intensive emergency care, assistance breathing using mechanical ventilators, and round-the-clock professional medical care.”); Dada, 2020 U.S. Dist. LEXIS 90911, at *5 (“COVID-19 remains medically ‘incurable’”). COVID-19 is the textbook “serious” and “communicable disease” from which the Constitution requires incarcerated people be protected. See Helling v. McKinney, 509 U.S. 25, 33-34 (1993). Even young and otherwise healthy COVID-19 patients might feel as though they are “drowning in [their] own blood,” or like “they’ve been hit by a truck.” See R. Doc. 4, ¶ 35. The risk for medically vulnerable populations is even more severe. Vazquez Barerra, 2020 WL 1904497, at *2; Ex. 1, Rottnek Suppl. Decl. ¶¶ 7-10, 20-23.21
Likewise, the facts reveal that Respondents have been deliberately indifferent to the risks associated with COVID-19. Respondents argue that the Eighth Amendment standard is not met because “Plaintiffs have cited no evidence that Defendants believed its measures were inadequate.” R. Doc. 35-2 at 32. This is disingenuous at best. The Jail’s recognized history of medically neglecting its inmates demonstrates the near “criminal recklessness” that Valentine imposed. See 956 F.3d at 802. Sheriff Gautreaux himself admitted, even prior to the pandemic, that the Jail is “not adequate for providing health care” and that “if [DOJ investigators] came to [the] prison today, they would shut half of it down”—notably, the half where they now house the sickest
21 The Fifth Circuit in other circumstances has acknowledged that the unprecedented risks associated with COVID19 justify extreme judicial remedies. In re Abbot, 954 F.3d 772, 781, 794 (5th Cir. 2020) (holding that “[g]iven the surging tide of COVID-19 cases and deaths,” petitioners have shown “exceptional circumstances necessary to grant writ of mandamus. And noting that “[i]n mill-run cases, it might be a sufficient remedy to simply wait until the expiration of the TRO . . . those methods would be woefully inadequate here.”)
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COVID-19 patients. See R. Doc. 4, Ex. 17; see also, Ex. 18 (Councilwoman describing healthcare in the parish prison as “catastrophic”).
Second, for infectious diseases like COVID-19, deliberate indifference is satisfied when correctional officers “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,” Helling, 509 U.S. at 33; see also Hope v. Pelzer, 536 U.S. 730, 738 (2002); Gates v. Collier, 501 F.2d 1291, 1300 (5th Cir. 1974). The Court need not “await a tragic event” after which Respondents can no longer deny that are maintaining unconstitutional conditions of confinement amid a global pandemic. See Helling, 509 U.S. at 33. So long as the risk of serious harm is “likely,” the Eighth Amendment is violated. Id.
Here, the risk of harm has already been realized. Numerous detainees, including medically vulnerable Petitioners, have developed COVID-19. See e.g., Belton Decl. ¶ 5; Franklin Decl. ¶ 40; Shepherd Decl. ¶ 7; Bradley Decl. ¶ 8. Some have tested positive multiple times—calling into question either the reliability of the testing or the belief that people cannot be infected multiple times. Further, Respondents refuse to test people who are symptomatic unless they meet certain criteria. Without robust testing, it is impossible to know what the true nature of the infection at the Jail is.
Respondents astoundingly argue that they “have shown that they have taken protective measures and continue to take measures, based on CDC guidelines for correctional institutions and by medical professionals.” R. Doc. 35-2 at 31. Even if this were sufficient to ameliorate the severe risk of harm associated with COVID-19 (it is not), see Hassig Decl. ¶ 5 (opining that CDC guidance is “not stringent enough to actually achieve the goal of keeping both staff and detainees safe from the virus”), the facts reveal that it is not true. Respondents continue to impose conditions that make the risk of developing COVID-19 by medically vulnerable individuals inevitable. This
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includes forcing detainees to “line up” or “clump” in close proximity, Belton Decl. ¶ 11; Rogers Decl. ¶ 48; Hardy Decl. ¶ 8; Spears Decl. ¶¶ 17, 28, failing to provide adequate treatment for sick detainees, Franklin Decl. ¶ 42; Bradley Decl. ¶ 15; Shepherd Decl. ¶ 9; Williams Decl. ¶ 17, and failing to equip detainees with—and failing to ensure that staff are provided with and actually wear—adequate PPE. Shepherd Decl. ¶¶ 13, 19, 22-23; Williams Decl. ¶ 26; Bradley Decl. ¶ 5; Rogers Decl. ¶¶ 12, 50-51; Hardy Decl. ¶ 21; Spears Decl. ¶¶ 24, 28. Respondents cannot credibly deny that they lack awareness of the risk of harm which they continue to permit. IV. ABSENT AN INJUNCTION, MEDICALLY VULNERABLE INMATES AT THE
JAIL WILL SUFFER IRREPERABLE HARM To sustain a finding of irreparable harm, “it is not necessary to demonstrate that harm is inevitable,” only that there is a “significant threat of injury from the impending action [and] that the injury is imminent.” See Humana, Inc. v. Jacobson, 804 F.2d 1390, 1394 (5th Cir. 1986). Respondents point to Marlowe, R. Doc. 35-2 at 37, although it is inapposite, supra pp. 14-17, and wave off Petitioners’ concerns about COVID-19 in the Jail as primarily “speculation and conjecture,” even as they detail their efforts to release eligible prisoners to protect them from the spread of COVID-19. R. Doc 38 at 24-25. Even after these efforts, Respondents do not and cannot show that CDC-recommended social distancing is feasible with even a reduced capacity of 1,062 incarcerated individuals now in the prison. Cf. Ex. 1, Rottnek Suppl. Decl. ¶¶ 2, 12, 13, 15, 24b(i). The risk to medically vulnerable subclass members is thus still too high.22 Moreover, Respondents confirm that six individuals tested positive for the virus since June 1, 2020. R. Doc. 38 at 22. That number seriously underestimates the threat of infection and serious
22 Respondents cite to a number of cases, mostly commercial trademark disputes, to half-heartedly argue that Petitioners’ purported delay in bringing this action undercuts its urgency. R. Doc. 42-4 p. 24. But this case is not about a trademark infraction; the COVID-19 pandemic continues with disastrous effects, and Petitioners are incarcerated in a highly restricted environment that raises communication and access challenges other potential plaintiffs do not confront. Petitioners’ initiation of this action was not delayed, and the matter is urgent.
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harm Petitioners face. Several putative class members report that staff refuse to test even many symptomatic inmates who do not meet certain arbitrary Jail criteria. See supra pp. 3, 7. Respondents themselves only claim to test inmates who present with COVID-19 symptoms, see R. Doc. 38 at 8, necessarily a small subset of those actually infected, since “[i]nfected people typically show no symptoms for 2-14 days and some never become symptomatic, even though they may be spreading the disease . . . ,” Ex. 1, Rottnek Decl. at ¶38. Consequently, there remains a grave and unaccounted for risk posed to the medically vulnerable by untested presymptomatic, asymptomatic, and mildly symptomatic people from whom social distancing cannot be achieved within the confines of the Jail.
The risk of COVID-19 infection is particularly elevated in the Jail given the virus’ transmissibility, the ineffectiveness of Respondents’ containment measures, and the overwhelming evidence from Petitioners and putative class members of the deplorable conditions in the Jail that render social distancing utterly impossible. See e.g., Denning Decl. ¶ 12; Stirgus Decl. ¶ 5; Weatherspoon Decl. ¶ 7. Respondents do not rebut Dr. Rottnek’s assessment that social distancing is “difficult if not impossible” in jails and prisons generally—nor could they. See R. Doc. 21-1 Ex. 9, ¶16; see also R. Doc. 21-1 Ex. 27, ¶5 (“anything less than 6 ft distancing is inadequate . . . .”).
Respondents also point to the proposed subclass representatives’ reported recovery from COVID-19 to say that Petitioners cannot show a risk of imminent harm. R. Doc. 42-4 p. 24. But a court “need not await a tragic event” to afford injunctive relief. Helling v. McKinney, 509 U.S. 25, 33 (1993). Respondents cite a handful of secondary sources, R. Doc. 35-2 at 38, but offer no medically sound evidence that vulnerable individuals who have recovered from COVID-19 establish immunity that precludes them from relapsing. Rottnek Suppl. Decl. ¶**. Nor do Respondents suggest that other medically vulnerable detainees in the Jail are not at risk of exposure
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in the Jail. And in at least some instances, Respondents’ protocols appear to put medically vulnerable inmates at risk of exposure. Thomas Decl. at ¶¶ 3,16 (suffering from “congestive heartfailure and liver disease” but transferred to isolation with individuals who had tested positive for COVID-19 before receiving confirmation of his negative status); see also supra pp. 1-13.
V. THE BALANCE OF EQUITIES AND PUBLIC INTEREST WEIGH IN FAVOR OF PETITIONERS’ REQUESTED TEMPORARY RESTRAINING ORDER Where, as here, the government is a party to the case, the third and fourth injunction
factors—the balance of the equities and the public interest—merge. Nken v. Holder, 556 U.S. 418, 435 (2009); El Paso Cty., Texas v. Trump, 407 F. Supp. 3d 655, 665 (W.D. Tex. 2019).
It is clear from the record that the substantial risk of serious harm to the Medically Vulnerable Subclass of contracting a deadly disease far outweighs any potential harm to Respondents. The balance of equities and the public interest favor release of the medically vulnerable subclass because they cannot be constitutionally held in the Jail. Critically, the public interest is served by the protection of constitutional rights. See Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th Cir. 1996); Cohen v. Coahoma Co., 805 F. Supp. 398, 408 (N.D. Miss. 1992).
As a point of departure, releasing this subclass of Petitioners will benefit—not harm— Respondents. Respondents will save money and reduce substantial burdens on guards and health care staff because of their release. The release of Medically Vulnerable Subclass members makes the entire jail safer and increases the likelihood of achieving social distancing for those who remain. And although Respondents cite Valentine to argue that Petitioners’ requested relief would harm them, that case is inapplicable to the claims presently before this Court because it involved different relief under 42 U.S.C. § 1983 than the relief Petitioners currently seek under 28 U.S.C. § 2241.
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Given the grave risk of substantial harm to the Medically Vulnerable Subclass because of the fact of their continued confinement in the Jail, this Court can and should act quickly to implement a system for ordering their release. Contrary to Respondents’ assertions, the temporary release of Medically Vulnerable Subclass members can be achieved through a system that includes a robust consideration of Respondents’ asserted public interest. The Court in Cameron v. Bouchard, for example, developed such a system. __ F. Supp. 3d __, 2020 WL 2569868 (E.D. Mich. 2020). The Cameron system considered the immediate release of members23 of the subclass who fall into the following categories: (1) subclass members being held on bail who are charged with an offense that does not have as an element the use or threatened use of violence or unwanted sexual touching of another person; (2) subclass members serving sentences for offenses that do not have as an element the use or threatened use of violence or unwanted sexual touching of another person; (3) subclass members whose sentences, regardless of the charged offense, expire by within 2 months of the Court’s order, a period throughout which the COVID-19 epidemic is likely to remain a major risk in the Jail and the community. For each of these categories of the subclass, the Court could first determine as a categorical matter that the public interest in reducing the Jail population exceeds any danger in releasing the individuals. And, by quickly taking this step, the remainder of the class—and Respondents’ staff for that matter—would be made better
23 Several such systems already exist. For example, a federal court in the District of Massachusetts has released (and continues to release) numerous immigration detainees on non-monetary bond conditions while their class action habeas petition is pending. See Savino v. Souza, __ F. Supp. 3d __, No. 20-10617-WGY, 2020 WL 1703844, at *8-9 (Apr. 8, 2020) (explaining its decision to grant bail pending habeas). Finding “exceptional circumstances” in “this nightmarish pandemic,” the court opted to “diligently entertain[] bail applications while the petitions for habeas corpus are pending.” Id. at *9. The district court requested and rapidly considered an initial list of 50 detainees for bail and has since considered class members’ bail applications in groups of ten. See Order, Savino v. Souza, No. 20-10617WGY, Doc. No. 44, at 3 (Apr. 4, 2020); see id., Doc. No. 45 at 1-3 (listing class members in groups of ten for bail consideration).
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off by the Jail becoming a somewhat safer place. Remaining members of the subclass could be promptly evaluated on a case-by-case basis by the Court or by an appointed magistrate or special master. That evaluation could weigh any risk to the public of releasing the individual against the risk to public health of failing to further reduce the jail population. If the Court finds, after careful consideration, that temporary release of certain members of the subclass is outweighed by the risk to the public, the Court could deny emergency relief to those specific individuals.
CONCLUSION For the reasons stated herein and in Petitioners’ Motion for Temporary Restraining Order, Petitioners’ respectfully request that this Court order all Defendants, their agents, representatives, and all persons or entities acting in concert with them to release those in the Medically Vulnerable Subclass. Respectfully submitted, this 8th day of June, 2020.

/s/ David J. Utter David J. Utter (LA Bar No. 23236) William R. Claiborne (GA Bar No. 126363) FAIR FIGHT INITIATIVE 410 East Bay Street Savannah, Georgia 31401 (912) 236-9559 Telephone (912) 236-1884 Facsimile david@fairfightinitative.org will@fairfightinitative.org

/s/Miriam R. Nemeth______________ Thomas B. Harvey (MBE #61734MO) Miriam R. Nemeth (DC Bar No. 1028529)** Tiffany Yang (DC Bar No. 230836) ADVANCEMENT PROJECT NATIONAL OFFICE 1220 L Street NW, Suite 850 Washington, DC 20005 (202) 728-9557 Telephone tharvey@advancementproject.org mnemeth@advancementproject.org tyang@advancementproject.org

/s/ Lillian S. Hardy______________ Lillian S. Hardy (DC Bar No. 991282) Hogan Lovells US LLP 555 Thirteenth Street NW Washington, DC 20004 (202) 637-5884 Telephone lillian.hardy@hoganlovells.com
/s/ Robert L. Toll_____________

/s/ William P. Quigley William P. Quigley (LA Bar No. 00769) Loyola University New Orleans 7214 St. Charles Avenue Campus Box 902 New Orleans, LA 70117
/s/ Baher Azmy Baher Azmy (NY Bar No. 2860740)
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Robert L. Toll (DC Bar No. 1021934)* Hogan Lovells US LLP 390 Madison Avenue New York, NY 10017 (212) 918-307 Telephone robert.Toll@hoganlovells.com

Omar Farah (NY Bar No. 4641247)^ Brittany Thomas (NY Bar No. 5683834)^ CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 11201 (212) 614-6427 Telephone bazmy@ccrjustice.org ofarah@ccrjustice.org bthomas@ccrjustice.org

Attorneys for Plaintiffs

*Pro Hac Vice motion pending ^Pro Hac Vice motion forthcoming ** Lead Attorney for Plaintiffs

CERTIFICATE OF SERVICE
I hereby certify that on June 8, 2020, a copy of the foregoing was filed electronically with the Clerk of the Court, using the CM/ECF system. Notice of this filing will be sent by operation of the court’s electronic filing system and/or via U.S. Postal Service to counsel of record.
/s/ David J. Utter David J. Utter

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 Case 3:20-cv-00278-BAJ-SDJ Document 47 06/05/20 Page 1 of 65

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

CLIFTON BELTON, JR., JERRY BRADLEY, CEDRICK FRANKLIN, CHRISTOPHER ROGERS, JOSEPH WILLIAMS, WILLIE SHEPHERD, DEVONTE STEWART, CEDRIC SPEARS, DEMOND HARRIS, and FORREST HARDY, individually and on behalf of all others similarly situated.

Plaintiffs,

Case No. 3:20-cv-000278-BAJ-SDJ

v.

SHERIFF SID GAUTREAUX, in his official capacity as Sheriff of East Baton Rouge, LT. COL. DENNIS GRIMES, in his official capacity as Warden of East Baton Rouge Parish Prison; CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE,

Defendants.

MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER
MAY IT PLEASE THE COURT: Defendants, SID J. GAUTREAUX, III, SHERIFF OF EAST BATON ROUGE PARISH in his official capacity and LT. COL. DENNIS GRIMES, in is official capacity (hereinafter collectively referred to as “Sheriff Defendants”), respectfully submit this Memorandum in Opposition to Plaintiffs’ Emergency Motion for Temporary Restraining Order. Sheriff Defendants respectfully request that this Court deny Plaintiffs’ Motion for Temporary Restraining Order and dismiss the suit as premature because Plaintiffs failed to exhaust administrative remedies prior to

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filing suit. I. INTRODUCTION
Plaintiffs seek the immediate release of all inmates who are part of the proposed Sub-class of medically vulnerable inmates currently incarcerated in the East Baton Rouge Parish Prison. The proposed Sub-class includes all inmates over the age of 65 years old and all inmates who experience an underlying medical condition that places them at particular risk of serious illness or death from COVID-19.1 Plaintiffs seek immediate intervention based upon their assertion that there is a dire health emergency at the jail and immediate relief is necessary to save lives. Plaintiffs assert that Medically Vulnerable Sub-class of inmates’ immediate release is necessary because these inmates are so vulnerable that no procedures could be implemented quickly or successfully enough to protect them. Plaintiffs assert that they believe that the number of confirmed COVID19 cases have likely already multiplied exponentially.
However, the evidence reflects that there is no health emergency at the jail and that due to extensive safety measures implemented and practiced, the number of inmates testing positive for COVID-19 have significantly declined since May 4. 2020. There have been no COVID-19 related deaths in the jail. Approximately three inmates have been transferred to an outside hospital facility and three recovered. Even more significantly, the number of new infections in the jail has not increased since May 12, 2020 and there are currently only six positive COVID-19 inmates being housed in the jail. The jail population has already been reduced significantly due to the efforts and collaboration of the District Attorney’s Office with its criminal justice partners to balance the need to continue to detain rightfully held arrestees to ensure the safety for our community versus the public health benefits of a lower jail population in light of the COVID-19 pandemic. The three
1 Rec. Doc. 8 page 2 2

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named Plaintiffs, proposed class representatives of the Medically Vulnerable Sub-class (Clifton Belton, Cedric Franklin and Willie Shepherd) have all already tested positive for the virus and have recovered. The premise for Plaintiffs request for emergency relief is flawed and this motion for TRO should be denied.
Further, Plaintiffs’ claims should be dismissed because Clifton Belton did not exhaust the EBRPP’s administrative remedies procedure prior to filing this suit. In addition, Plaintiffs failed to establish the prerequisites for a mandatory TRO. Plaintiffs have not shown a substantial likelihood of prevailing on their underlying Eighth Amendment and Fourteenth Amendment claims and the Fifth Circuit’s recent decisions in Valentine v. Collier, 956 F. 3d 797 (5th Cir. 2020) and Marlowe v. LeBlanc, 2020 WL 2043425 (5th Cir. 2020) preclude this Court from granting Plaintiffs’ motion for TRO. Plaintiffs cannot show the proposed class will suffer irreparable harm in the absence of a TRO mandating release. Defendants have put swift and targeted measures in place based on CDC guidelines and recommendations from a medical expert on infectious disease. Further, the release of all members of the Medically Vulnerable Sub-class, regardless of their charges/convictions and without regard to the risk of society is detrimental to the public interest.
In addition, for the reasons cited herein this Court does not have the authority to order immediate release of the proposed Medically Vulnerable Sub-class members. II. PROCEDURAL HISTORY
On May 4, 2020, Clifton Belton, Jr. (hereinafter referred to as “Belton”) filed a pro se Complaint2 regarding the conditions of the East Baton Rouge Parish Prison (hereinafter referred to as “EBRPP”) during the ongoing COVID-19 pandemic. On May 22, 2020, attorney David Utter filed an Ex Parte Motion to Enroll3 as counsel of record on behalf of Belton. On May 27, 2020,
2 Rec. Doc. 1 3 Rec. Doc. 3
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Mr. Utter filed an Amended Class Action Complaint4 along with attached exhibits regarding the condition of the EBRPP. The named Plaintiffs are Clifton Belton Jr., Jerry Bradley, Cedric Franklin, Christopher Rogers, Joseph Williams, Willie Shepherd, Devonte Stewart, Cedric Spears, Demond Harris, and Forrest Hardy.5 In the Amended Complaint, Plaintiffs describe a medically vulnerable subclass of plaintiffs who are detainees at the East Baton Rouge Parish Prison and allegedly at a greater risk of infection and death from COVID-19.6
On May 27, 2020, Plaintiffs also filed an Emergency Motion for Temporary Restraining Order7 against Sheriff Defendants and the City of Baton Rouge/Parish of East Baton Rouge asking the court to release the medically vulnerable subclass members. Plaintiffs contemporaneously filed a Motion for Expedited Discovery8 requesting an expedited expert’s inspection of the EBRPP in anticipation of a hearing on their request for preliminary injunction. Plaintiffs also filed a Motion for Class Certification.9
On May 28, 2020 EBRP defendants requested that this court schedule a status conference regarding the recent pleadings.10 A status conference was then set for June 1, 2020.11 Following the status conference, counsel for defendants were given until the close of business on June 5, 2020 to file an Opposition to the Motion for Temporary Restraining Order.12 On June 3, 2020 a Hearing on the Emergency Motion for Temporary Restraining Order was set for June 10, 2020 at 9:30 a.m.13
4 Rec. Doc. 4 5 Id. 6 Id. 7 Rec. Doc. 5-2 8 Rec. Doc. 7 9 Rec. Doc. 8 10 Rec. Doc. 22 11 Rec. Doc. 27 12 Rec. Doc. 32 13 Rec. Doc. 33
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III. FACTUAL BACKGROUND The Coronavirus (“COVID-19”) crisis has been a rapidly moving and evolving situation
for the whole world. While the global pandemic has swept the nation, the East Baton Rouge Parish Prison (EBRPP) was able to swiftly implement procedures based on commonly followed CDC Guidelines. Through this quick action, EBRPP, in unison with the City and CorrectHealth (the Healthcare provider at the EBRPP), has managed to mitigate the spread of COVID-19 in the jail and provide inmates with adequate personal protective equipment and sanitation products. The policies and procedures instituted in the jail facility have undoubtedly mitigated the risks of contracting the virus as well as increased the chances of prevention.
On March 11, 2020, the World Health Organization declared the novel coronavirus (“COVID-19”) a pandemic.14 The Louisiana Department of Health reported Louisiana’s first presumptive positive case of COVID-19 on March 9, 2020. The Governor of Louisiana declared a statewide public health emergency on March 11, 2020.15 The CDC recognized that correctional institutions provide essential public services for the protection of incarcerated persons, staff, and visitors. Correctional facilities have added challenges during the outbreak of COVID-19. Therefore, the CDC provided guidance to these institutions on March 23, 2020. Prior to these guidelines being issued, The East Baton Rouge Sheriff’s Office (EBRSO) proactively educated staff on the virus and created a plan of action for the safety of inmates and staff. EBRSO has continued to put the safety of their employees, the community, and the inmate held in their custody first.
14 Exhibit 1 - See WHO Director-General’s opening remarks at the media briefing on COVID-19 – 11, March 2020 (March 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-mediabriefing-on-covid-19---11-march-2020. 15 Exhibit 2 - 25 JBE 2020
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A. The East Baton Rouge Sheriff’s Office Took Active Measures at the Start of the Pandemic to Ensure the Safety of the Inmates and Employees at the Jail Facility.
Kellie Jolivette (Jolivette), EBRSO Human Resources Director, sent out several
departmental notifications regarding COVID-19 when the State of Louisiana had six (6) presumptive positive cases.16 On March 11, 2020, Jolivette sent a departmental wide communication out to all employees to educate them on the virus.17 On March 25, 2020,
instructional videos were posted to YouTube and all EBRSO users were notified that videos had been created to demonstrate the proper use of personal protective equipment (PPE).18 On March
27, 2020, Jolivette sent an email to deputies to provide a process for reporting COVID-19 exposures, testing protocol, and return-to- work information.19 On April 9, a flow chart to show what actions should be taken by employees was also disseminated.20 Based on these affirmative
actions, it is clear that the Sheriff’s office was actively working to educate deputies, including the correctional staff, regarding the virus at the start of the state’s crisis.21
EBRSO recognized that the best method to slow the spread of the virus was to ensure that the deputy was not infected and educate all employees regarding the known symptoms of the virus.22
On April, 3, 2020, in order to minimize the risk of the deputies carrying the virus into the jail, the Sheriff provided a decontamination trailer for all deputies assigned to the jail facility.23
On March 12, 2020, in addition to the information disseminated by EBRSO, the Warden at EBRPP implemented special guidelines in response to the COVID-10 crisis.24 A document
16 Exhibit 3 - Affidavit of Kellie Jolivette 17 Exhibit 3 - attachment A 18 Exhibit 4 - Affidavit of Kenny Kwan 19 Exhibit 3 - attachment B 20 Id. - attachment C 21 Exhibit 3 22 Exhibit 5 - Affidavit of Warden Dennis Grimes 23 Id. 24 Id.
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entitled, “Covid 19 (Coronavirus) prevention and contingency Plan for East Baton Rouge Parish Prison (3/12/2020)” was provided to all deputies working at the prison and to all inmates housed at EBRPP.25 This communication promoted cleaning, and specifically mandated that Central Booking be cleaned twice per day.26 Under this policy, inmates are given cleaning supplies daily to clean their living spaces.27 The bars of the cells are sprayed daily by the deputies with Opticleanv-Liquid detergent with bleach and Maxim Fresh scent.28
B. EBRPP Adopted the CDC Guidelines and DOC Policies for Correctional Facilities as such Standards Became Available.
The CDC guidelines were promulgated on March 23, 2020. The Warden is currently following the CDC guidelines for the management of COVID-19 in correctional and detention facilities.29 In addition to the CDC guidance, EBRPP has also followed policies from the Louisiana Department of Corrections (DOC) which policy was initially issued on April 6, 2020 and updated on May 11, 2020.30 In response to the DOC guidance issued, the Louisiana Sheriff’s Association published “COVID-19 FAQ and Guidance to Prisons Re: Screening, Assessment, Testing and Infection Control”.31 The jail has used this document to educate jail staff and inmates on the COVID-19 situation.32 Although communicated to the staff before, the Warden formally adopted the CDC guidelines into policy at EBRPP on April 14, 2020 with policy No. D. 201 on April 14, 2020.33
25 Id. - attachment H 26 Id. 27 Id. 28 Id. 29 Id. - attachment C 30 Id. - attachment D 31 Id - attachment E 32 Id. 33 Id. - attachment F
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i. EBRPP Provides Educational Support Regarding the Spread and Threat of COVID-19 to Inmates Housed in the Jail Facility.
EBRPP has effectively communicated the known information regarding COVID-19 to the inmates.34 Signs in both English and Spanish were posted in the jail which provided access to information designed to educate the inmates regarding the spread of COVID-19.35 Additionally,
informational videos were played on the monitors in the jail to inform and educate inmates regarding COVID-19.36 Deputies distributed ample cleaning supplies and hygiene items while verbally requesting inmates to clean living areas due to COVID-19.37
ii. Extensive Cleaning Protocols were Implemented and Personal Hygiene Products are Supplied to Inmates in the Jail Facility.
Cleaning protocols were enhanced to ensure that mattresses, toilets, and shower areas are regularly sprayed and cleaned.38 Attached are logs evidencing the cleaning of these items.39
EBRPP maintains logs of cleaning supplies distributed throughout the facility documenting efforts
to provide disinfectant, bleach, soap, and other efforts by the jail staff to ensure that there are available cleaning supplies.40 In addition to these cleaning supplies, inmates are provided supplies for personal hygiene free of charge.41 Inmates are provided with extra soap, toothpaste, toilet paper, and plenty of brown paper disposable towels to clean their cells.42 Prior to COVID-19, the personal hygiene supplies were distributed on the 1st and 15th of each month.43 Currently, hygiene supplies are distributed twice per week.44 However, any inmate can request soap at any time, and
34 Id. - attachment K 35 Id.- attachment K 36 Id. - attachment L 37 Id. - attachment M. 38 Exhibit 5 39 Id.- attachment M 40 Id. 41 Id. 42 Id. 43 Id. 44 Id.
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it will be provided without charge.45 Sheriff Defendants have attached an example of a typical shift on the B-Wing which shows iced water offered, phones wiped down, and chemicals issued.46
iii. EBRPP Strongly Promotes Social Distancing The jail staff works to ensure social distancing.47 To avoid large gatherings of inmates, the facility’s cafeteria is no longer in use and jail staff brings chow directly to the inmates.48 Meals
for isolation inmates are served on Styrofoam to ensure social distancing and prevent contamination.49 Additionally, all inmates have all medication brought to them by the healthcare providers.50 Inmates are allowed recreation, but it is limited or curtailed to reduce movement within the prison.51 They are allowed hall time but restricted to limited numbers of inmates per cell outing in order to ensure safe distances between the inmates.52 As it was recommended, inmates were provided with face coverings.53
For safety and security, the jail is required to do an inmate count every day.54 The inmates
on a wing are required to be present. This is one of the most important procedures in the jail.
During the count, inmates are given verbal orders to wear a mask and social distance as much as possible.55 The process typically lasts less than one hour for each line, but smaller lines are much
shorter (less than 30 minutes).
The jail facility has implemented methods for social distancing in the large dorms where
bunk beds are utilized. The bunks that are used for sleeping are bolted to the floor and wall so
45 Id. 46 Id. – attachment R 47 Id. 48 Id. 49 Id. 50 Id. 51 Id. 52 Id. 53 Id. 54 Id. 55 Id.
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moving the beds was not an option.56 In order to social distance while sleeping, inmates sleep
“head to toe” as recommended by the CDC. In other words, if an individual is in the lower bunk
with his head facing north, then in the upper bunk and side bunks the individual’s head is facing south.57
iv. EBRPP Provides a Thorough Screening Process for All Individuals Entering the Jail Facility.
Screening processes are instituted to reduce the transmission of the virus from visitors.58
Any individual wishing to enter the jail facility is screened before entering the jail with questions asked to elicit whether that individual has any COVID-19 symptoms.59 The screening questionnaire is attached to the Wardens Affidavit.60 Additionally, temperatures are checked for all individuals going into the jail as well as staff leaving the jail.61
The jail implemented screening processes early on (first week of March) in cases of new
arrestees being booked by law enforcement. Temperatures on new arrestees are taken prior to entering Central Booking and recorded by CorrectHealth.62 After the screening questions and
temperature check are administered, if the medical provider suspects a case of COVID-19, both the arrestee and the law enforcement officer would be provided PPE and sent to a hospital.63
If COVID-19 is not suspected, the inmate is allowed into the facility. Inmates remain in
booking for two (2) days due to court hearings and PREA. After that, they are transferred to the intake line where they are monitored for fourteen (14) days separate from general population.64
All visitation to the prison by members of the public was terminated effective March 13,
56 Id. 57 Id. 58 Id. 59 Id. 60 Id. - attachment I 61 Id. 62 Id. 63 Id. - attachment H 64 Exhibit 6 - Affidavit of Major Fontenot
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2020.65 Visitation at the jail has not resumed to date.66
v. PPE is Utilized By the Jail Staff and Inmates According to CDC Protocols
Prison officials actively educated themselves regarding the use of PPE in correctional
facilities and used the knowledge gained to implement safety measures in the jail. The Warden
took part in a conference to educate himself on the CDC requirements on March 11, 2020.67 On
March 12, 2020, the warden promulgated, “Covid 19 (Coronavirus) prevention and contingency
Plan for East Baton Rouge Parish Prison (3/12/2020)” within the jail.68 This document outlines
that PPE and supplies will be provided and must be worn.69 The CDC recommendation that PPE
should be worn by both inmates and staff is adhered to by the jail.70 Jail officials endeavor to keep
jail staff reminded of the PPE requirements and its availability in the facility.71
Supplies of PPE are constantly monitored, and updates sent periodically to staff tasked
with procuring it.72 As has been widely publicized at times PPE was difficult to obtain. However,
the jail staff kept inventory and reported the status of PPE availability as well as cleaning and
disinfectant supplies to Captain Kenny Kwan.73 Captain Kwan then maintained the stock of
available PPE and cleaning disinfectant supplies.74 If available stock at the jail fell to the half
point, staff would report that supplies are needed.75 Upon notification of a declining supply,
Captain Kwan would obtain those PPE and cleaning products.76 At all times since the start of the
65 Exhibit 5 66 Id. 67 Id. 68 Id. - attachment H 69 Id. 70 Id. 71 Exhibit 6 - attachment A 72 Id. - attachment F and G 73 Exhibit 4 74Id. and Exhibit 6 - attachment F 75 Exhibit 4 76 Id. and Exhibit 6 – attachment F
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COVID-19 pandemic, the jail has met all demand for supplies of PPE and had available cleaning and disinfectant supplies.77
All inmates were provided with bandanas to be used as face masks.78 The April 3, 2020 the CDC provided “Recommendation Regarding the Use of Cloth Face Coverings, Especially in Areas of Significant Community Based Transmission”. The CDC recognized that a simple cloth barrier can stop the transmission of the virus. These face coverings are picked up every 3 days by jail staff and laundered with Opticlean-V-Liquid with Bleach detergent in hot water.79 Contemporaneously with laundering the face covering new bandanas are distributed to every inmate.80
vi. EBRPP Strives to Ensure that Proper Protocols are Followed in the Effort to Safely Isolate and Quarantine Inmates During this Pandemic.
Initially, positive individuals were moved from the jail to another facility.81 However, at some point in early April, that process was changed.82 When no other option was available, there were instances in the early stages of the pandemic where confirmed positive inmates were housed with highly suspected COVID-19 inmates who exhibited symptoms that closely mirrored COVID19.83 In some instances, cohorting confirmed positive cases with non-confirmed suspected cases is allowed by the CDC Guidelines.84 Currently, the jail is segregated into general population, isolation areas, and quarantined areas.85 All inmates in quarantine and isolation were issued
77 Id. 78 Exhibit 5 79 Id. - attachment Q 80 Id. 81 Id. 82 Id. 83 Id. 84 Id. – attachment C 85 Id.
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masks/bandanas and are monitored frequently.86
The EBRPP created a process of quarantining inmates potentially exposed to a COVID-19
positive inmate. The line or unit where the inmate was originally housed is put on a 14-day quarantine where movement is restricted.87 Temperatures of the exposed inmates are checked twice daily.88 Other symptoms of COVID-19 are also monitored in the quarantine area.89 No new inmate was moved into a quarantine area during the 14-day quarantine.90
Quarantined inmates are not allowed to move within the jail.91 They are not allowed outside recreation, but are provided with additional games, cards, and inside entertainment.92
These inmates continue to have access to television, books, water, and socially distanced
recreation. If during a 14-day quarantine period, no inmate in the quarantine area tests positive for
COVID-19, then the quarantine is lifted from that line. Inmates are then allowed to have outside recreation.93 Important to note is that quarantined inmates receive ice water during the day and have water available all day.94
The EBRPP has utilized its facility as efficiently as possible during this crisis. Officials
have designated isolation lines for inmates who test positive for COVID-19 and strict policies are
in place to ensure their safety and to ensure that the virus is contained to such a line. The isolation line is not a disciplinary line.95 In isolation, the inmate has access to television, reading materials, and games.96 The inmates on the isolation line’s symptoms are closely monitored by medical
86 Id. 87 Id. 88 Id. 89 Id. 90 Id. 91 Id. 92 Id. 93 Id. 94 Id. 95 Id. 96 Id.
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professionals.97 In addition, inmates are closely monitored by jail staff while on this line.98 Staff
assigned to an isolation wear additional PPE designed to protect themselves from contracting the virus, thereby limiting the spread throughout the facility and community.99
Further, the facility has implemented a policy wherein an inmate must have a minimum of two (2) negative COVID-19 test results before he may be moved back to general population.100
a. A Medical Expert was Enlisted to Evaluate The Quarantine and Isolation Procedures Implemented at the Jail Facility.
EBRSO communicated with Our Lady of the Lake Hospital to enlist the medical expertise
of Dr. Catherine O’Neal, an infectious disease specialist with over seventeen (17) years of related experience.101 On April 2, 2020 she reviewed the jails testing, quarantine, and isolation procedures.102 She concluded that the jail was following the recommended guidelines.103
vii. EBRPP’s COVID-19 Policies Have Been Successful
EBRPP has successfully implemented policies which work to lower the inmates’ risk of
contracting COVID-19 as well as increase the likelihood of a successful recovery. Plaintiffs inaccurately claim that a COVID-19 positive inmate at EBRPP died due to the virus.104 The first case of an inmate diagnosed with COVID-19 at EBRPP was on March 28, 2019.105 An individual at the jail on March 28, 2020 was suffering from a drug overdose, and was brought to OLOL.106 While at the hospital, that individual was checked, and diagnosed with COVID-19.107 That
97 Id. 98 Id. 99 Id. 100 Id. 101Exhibit 6 - attachment C 102 Id. – attachment D 103 Id – attachment D 104 Rec. Doc. 5, page 20. 105 Exhibit 5 106 Id. 107 Id.
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individual recovered, was released from OLOL, and did not die.108 Since that time, there have been a total of 92 positive cases in the jail.109 The jail released 16 of that number and 70 have recovered.110 As of June 4, 2020 six (6) inmates are positive for COVID-19.111
Evidence shows that, due to safety measures implemented and practiced, the number of positive cases in the jail have consistently gone down since May 4, 2020.112 There have been no COVID-19 related deaths in EBRPP.113 Only three inmates were transferred to an outside hospital facility and all three recovered.114 Even more significantly, the number of new infections in the jail has not increased since May 12, 2020 (prior to the filing of this emergency TRO).115 There are currently only six (6) positive cases in isolation.116
viii. EBRPP has Taken Measures to Ease the Financial Burden on Inmates During this Crisis.
In order to ease the hardships faced by individuals in the jail, all co-pays and fees for medical treatment or a sick call have been waived.117 This will also encourage all to seek medical
attention for any symptoms they may experience. A sign regarding the waiver of all co-pays is posted in all areas of the jail.118 Further, all inmates are now allowed two (2) free phone calls to
family and loved ones and can communicate with counsel via phone. Phone conversations with counsel are not monitored.119 The jail has measures in place to inform family members when an
108 Id. 109 Id. 110 Id. 111 Id. - attachment Y 112 Id. 113 Exhibit 7- Affidavit of CorrectHealth 114 Exhibit 5 115 Id. 116 Id. 117 Id. – attachment U 118 Id. 119 Id.
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inmate has been transferred to the hospital.120
ix. EBRPP Ensures that Regular Facility Services are Continued to Be Provided.
The Policy and Procedures for Mental Health and Special Needs Housing; suicide
Prevention E111 was updated on March 6, 2020. It is followed to ensure that inmates with special
needs are given periodic reviews and that treatment plans are put in place by the social workers employed by CorrectHealth.121 Chaplains have continued to work with inmates and be available for counseling.122
Daily Briefings with jail staff ensure that guidelines are being followed, and that any changes are communicated promptly and effectively.123
C. Extraordinary Efforts Were Made to Reduce the Jail Population
The District Attorney’s Office worked closely with the Public Defender’s Office to safely reduce the jail population.124 The Public Defender’s Office provided a list of cases to prosecutors to review for pre-trial release.125 The joint recommendations were presented to the Court, which led to a historic low in the population size at the East Baton Rouge Parish Prison.126 During these
reviews, jail officials provided daily updates on the jail population and health conditions inside the jail.127
D. Plaintiffs Seek the Release of Three COVID-19 Survivors Described Below
The daily count of inmates in EBRPP as of June 2, 2019 was 1347 made up of 1168 males and 179 females.128 The daily count of inmates on June 2, 2020, after efforts by the State and City
120 Id. 121 Id.- attachment X 122 Exhibit 6 - attachment B 123 Exhibit 5 124 Exhibit 8 – Affidavit of Hillar Moor 125 Id. 126 Id. 127 Id. 128 Exhibit 5
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judges, the district attorney and defense counsel to reduce the jail population, was 1062 made up of 976 males and 86 females.129 The jail has a capacity of approximately 1420 inmates, split between bed space for 184 females and 1236 males.130 The focus of plaintiffs’ motion are the inmates that are currently in the EBRPP facility.131 There are approximately 233 Department of Corrections inmates assigned to East Baton Rouge parish’s work Release Facility, which is managed by Louisiana Workforce, LLC.132 This facility is separate, and none of these individuals are housed at the EBRPP facility, therefore, the work release facility, is not at issue before the court.133
The three plaintiffs before the court on this TRO have identified themselves as medically vulnerable and because of their medical vulnerability are seeking a TRO to be released from EBRPP.134 Two plaintiffs have pled guilty to crimes, Clifton Belton and Cedric Franklin. Both of these plaintiffs are currently serving time related to those convictions. One plaintiff, Willie Shepard is a pre-trial detainee. All three plaintiffs have previously tested positive for COVID-19 and are now recovered from COVID-19.135
a. Clifton Belton Clifton Belton is a post-conviction inmate. He was booked into East Baton Rouge Parish Prison on December 9, 2018 for retail theft under La. R.S. 14:67, Resisting an officer La. R.S. 14:108, and three (3) fugitive from justice charges; (1) Fugitive from justice BRPD file # 26611, (2) Fugitive from justice West Baton Rouge file #26611, and (3) Fugitive from justice from Livingston file #26611.136 In the Nineteenth Judicial District (“19th JDC”), before Judge Johnson,
129 Id. 130 Id. 131 Rec. Doc. 5-3. 132 Exhibit 5. 133 Id. 134 Rec. Doc. 5-3. 135 Exhibit 6 136 Exhibit 9 – Clifton Belton Jr.’s Booking Records.
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he plead guilty to one count of La. R.S. 14:67 Felony Theft in Docket #07-18-0435 on September
25, 2019.137 He agreed to a sentence of four years at hard labor to run concurrently with any and
all other time.138 This case was set for sentencing on April 15, 2020, and, at defense counsel’s
request, it was reset to July 20, 2020 while Mr. Belton resolves his pending cases in other
parishes.139 In West Baton Rouge Parish (“WBR”), he has charges of: (1) La. R.S. 14:67, Felony
Theft;140 (2) La. R.S. 14:67, Misdemeanor Theft;141 and (3) La. R.S. 14:68, Simple Robbery.142
His next court date is June 22, 2020.143 In Livingston Parish, he has an outstanding affidavit
warrant for simple burglary, which he has not yet been booked.144 He also is facing charges in
Ascension Parish on La. R.S. 14:27 / La. R.S. 14: 67, Attempted Felony Theft.145 His next court
date is July 21, 2020.146
b. Cedric Franklin
Cedric Franklin is also post-conviction inmate. He was booked into East Baton Rouge
Parish jail on with violations of La. R.S. 14:43 misdemeanor sexual battery and La R.S.
40:966(C)(2) & (C)(23) felony possession of ecstasy.147 He was arrested and was booked into the
East Baton Rouge Parish Prison on January 6, 2020.148 On January 6, 2020 before Judge Trudy
White, in the 19th JDC, he plead guilty under Docket #07-17-0073 to the amended charge of
misdemeanor sexual battery.149 He was sentenced to 6 months at parish prison.150 On that same
137 Exhibit 10 – Clifton Belton Jr.’s 19th JDC Minutes from Docket #07-18-0435 138 Id. 139 Id. 140 Exhibit 11 - Clifton Belton Jr.’s WBR Docket #170116 141 Exhibit 12 - Clifton Belton Jr.’s WBR Docket #180117 142 Exhibit 13 - Clifton Belton Jr.’s WBR Docket #190618 143 Exhibits 11, 12, and 13. 144 Exhibit 10. 145 Exhibit 14 - Clifton Belton Jr.’s Ascension Parish Bill of Information 146 Exhibit 15 - Clifton Belton Jr.’s Ascension Parish Minutes from Docket #40477 147 Exhibit 16 - Cedric Franklin’s Booking Records 148 Id. 149 Exhibit 17 - Cedric Franklin’s 19th JDC Minutes from Docket #07-17-0073. 150 Id.
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day and before Judge Trudy White, he plead guilty to possession of a schedule 1 controlled substance, specifically Ecstasy, under Docket #03-17-0501.151 He was sentenced to 2 years at Parish prison in with both the sentences running concurrently.152 Mr. Franklin is scheduled for release on January 2, 2021.153
c. Willie Shepherd
Willie Shepherd is a pretrial detainee. He was booked into East Baton Rouge Parish Prison
on February 26, 2020 on the following charges; La. R.S. 14:35.3, Domestic Abuse Battery, two
counts of La. R.S. 14:43.1, Sexual Battery, La. R.S. 14:38, Simple Assault 14:38, La. R.S. 14:46, False Imprisonment, and La. R.S. 14:133.2, Misrepresentation During Booking.154 A Bill of
Information in Docket #20-01854 – La. R.S. 14:108, Resisting an Officer, was filed April 22, 2020.155 His Bills of Information for Dockets #20-01855, La. R.S. 14:35.3, Domestic Abuse
Battery, La. R.S. 14:46, False Imprisonment, and La. R.S. 14:133.2, Misrepresentation During Booking;156 and Docket #20-01856, two counts of La. R.S. 14:43.1, Sexual Battery, were filed on May 14, 2020.157 Currently, he is scheduled for a status conference on all three of his open dockets on June 24, 2020.158 On March 4, 2020, his bond was set at $15,000 plus abiding by terms of a
protective order and residing with his mother. He was rearrested and booked into EBRPP on March 7, 2020 on the charge of La. R.S. 14:108, Resisting an Officer.159
All three of the plaintiffs seeking to be released as medically vulnerable have tested
positive for COVID-19 and fully recovered. The jail management system shows that Clifton
151 Exhibit 18 - Cedric Franklin’s 19th JDC Minutes from Docket #03-17-0501. 152 Id. 153 See Exhibit 17. 154 Exhibit 19 - Willie Shepherd’s Booking Records. 155 Exhibit 20 - Willie Shepherd’s 19th JDC Bill of Information on Docket #20-01854. 156 Exhibit 21 - Willie Shepherd’s 19th JDC Bill of Information on Docket #20-01855. 157 Exhibit 22 - Willie Shepherd’s 19th JDC Bill of Information on Docket #20-01856. 158 Exhibit 23 - Willie Shepherd’s 19th JDC Minutes from Docket #20-01854. Exhibit 24 - Willie Shepherd’s 19th JDC Minutes from Docket #20-01855. Exhibit 25 - Willie Shepherd’s 19th JDC Minutes from Docket #20-01856. 159 Exhibit 19, page 1.
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Belton was moved after being positive from an isolation line on May 19, 2020.160 Willie Shepherd
was moved from an isolation line on May 4, 2020.161 Cedric Franklin was moved from an isolation
line on May 8, 2020.162 All three tested negative twice before being moved from the positive
area.163
IV. LAW AND ARGUMENT
A. Plaintiffs’ claims should be dismissed because they failed to exhaust administrative remedies prior to filing suit.
Under the Prison Litigation Reform Act (“PLRA”), “no action shall be brought with respect
to prison conditions under Section 1983…by a prisoner confined in any jail…until such
administrative remedies as are available are exhausted.”164 “[T]he PRLA’s exhaustion requirement
applies to all inmate suits about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or some other wrong.”165 Exhaustion
is a mandatory prerequisite to filing suit.166
The Fifth Circuit requires inmates to fully exhaust the applicable prison grievance
procedures before filing a suit in federal court.167 Courts have no discretion to excuse an inmate’s
failure to properly exhaust the prison grievance process, even to take “special circumstances” into
account.168 Recently, the Fifth Circuit discussed this issue in Valentine v. Collier, 956 F. 3d 797
(5th Cir. 2020). In Valentine, the plaintiffs were seeking a preliminary injunction related to the
160 Exhibit 6 - attachment H. 161 Exhibit 6- attachment I 162 Exhibit 6 - attachment J 163 Exhibit 5 164 42 U.S. C. Section 1997e(a); Jones v. Bock, 549 U.S. 199, 202 (2007) 165 Porter v. Nussle, 534 U.S. 516, 532 (2002) 166 Booth v. Churner, 532 U.S. 731, 739 (2001) 167 Gonzales v. Seal, 702 F. 3d 785, 788 (5th Cir. 2012) (“It is irrelevant whether exhaustion is achieved during the federal proceeding. Pre-filing exhaustion is mandatory, and the case must be dismissed if available administrative remedies were not exhausted.”); Dillon v. Rogers, 596 F. 3d 260, 268 (5th Cir. 2010) (finding that mere “substantial compliance” with administrative procedures is insufficient exhaustion); Wright v. Hollingsworth, 260 F. 3d 357, 35859 (5th Cir. 2001). 168 Ross v. Blake, 136 S. Ct. 1850, 1856-57 (2016); Gonzalez, 702 F. 3d at 788.
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State of Texas’s response to COVID-19 in a prison for the elderly and infirm. The Fifth Circuit in
Valentine, stated as follows:
The PLRA requires inmates to exhaust ‘such administrative remedies as are available’ before filing suit in federal court to challenge prison conditions. 42 U.S.C. Section 1997e(a). This exhaustion obligation is mandatory-there are no “futility or other [judicially created] exceptions [to the] statutory exhaustion requirements…” Booth v. Churner, 532 U.S. 731, 741 n.6, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001). So long as the State’s administrative procedure grants ‘authority to take some action in response to a complaint,’ that procedure is considered ‘available,’ even if it cannot provide ‘the remedial action an inmate demands.’ Id. at 736, 121 S.Ct. 1819 (emphasis added); see also id at 739, 121 S. Ct. 1819 (‘Congress meant to require procedural exhaustion regardless of the fit between a prisoner’s prayer for relief and the administrative remedies possible’). 169
The Fifth Circuit in Valentine explained that a remedy is not “available,” and exhaustion is not
required in the following limited circumstances:
1. The procedure “operates as a simple dead end” because “the relevant administrative procedure lacks authority to provide any relief,” or “administrative officials have apparent authority but decline to exercise it.”
2. The “administrative scheme [is] so opaque that…no reasonable prisoner can use them.”
3. Or when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.”170
The Fifth Circuit in Valentine held that under these standards plaintiffs’ suit was premature,
that the TDCJ’s grievance procedure is “available” and plaintiffs were required to exhaust. 171
The Fifth Circuit in Valentine rejected the district court’s argument that the TDCJ has not
acted speedily enough because that was an exception under the old Section 1997e(a), not the
169 Valentine at 804 170 Valentine at 804 citing Ross v. Blake, ---U.S.---, 136 S. Ct. 1850, 1859-60, 195 L. Ed. 2d 117 (2016) (quotation omitted). 171 Valentine at 804
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current one. The Fifth Circuit concluded that the district court’s holding that the TDCJ process “presents no ‘possibility of some relief’” was unsupported by the evidence. 172 Further, the Fifth Circuit held that they were not persuaded by the district court’s reliance on Fletcher v. Menard Correctional Center, 623 F. 3d 1171 (7th Cir. 2010), in which Judge Posner hypothesized that administrative remedies might “offer no possible relief in time to prevent…imminent danger from becoming actual harm.”173 The Fifth Circuit noted that “in that hypothetical, the State procedure “could offer no possible relief because State law prohibited a response to the grievance until two weeks after it was filed—rendering the procedure of no use to an inmate threatened with death in 24 hours. The Fifth Circuit held that under those circumstances, the procedure is unavailable because “’it lacks authority to provide any relief,’ Ross, 136 S. Ct. at 1859, because as a matter of law it cannot respond quickly enough.”174 The Fifth Circuit concluded that the TDCJ faces no legal bar to offering timely relief, noting that the TDCJ is empowered to act on a grievance any time up to-not, after, as in Fletcher-the statutory limit. The Fifth Circuit concluded that “relief by TDCJ therefore remains possible (and the procedure available), even if TDCJ has not acted as swiftly as Plaintiffs would like.”175
The East Baton Rouge Parish Prison (“EBRPP”) Inmate Rules and Regulations handbook sets out the grievance procedure applicable to Plaintiffs’ claims.176 Per the handbook, a grievance procedure is initiated by an inmate completing a grievance form and sending it to the grievance investigator or filing a letter to the Warden.177 Once submitted, the grievance investigator will screen the grievance.178 Upon acceptance of the grievance by the grievance investigator, the
172 Valentine at 805 citing Ross, 136 S. Ct. at 1859. 173 Valentine 805 citing Fletcher, 623 F. 3d at 1174 174 Valentine 805 175 Id. 176 See ARP Affidavit of Warden Grimes and the attached EBRPP Inmate Rules and Regulations attached hereto as Exhibit 26a. 177 Id. page 25, F. ii. 178 Id. page 25 G.
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grievance will be investigated or referred to the department that may best respond to the request.
The grievance will not be referred to an employee who is involved in the grievance. The employee
will investigate and will deliver a response to the grievance investigator who will give a copy to
the inmate with an explanation for the procedure for further review within 15 days of filing of the grievance.179 According to the Inmate Handbook, an inmate may request review by the Warden by filing a request for warden’s review. 180 The Warden or his designee will review the grievance
and response and deliver a copy of his decision including the reasons to the inmate. The Response
to Inmate Grievance form provides that the inmate will receive the Warden’s decision within 30 days of the filing of the request for Warden’s review.181 The Inmate Handbook provides that the
deadlines for response and decisions set forth in the Inmate Handbook are maximums and that responses and decisions will be given as quickly as is reasonably possible.182 Warden Grimes
testified in a sworn affidavit that it is his practice to take less than the full thirty days to respond to a Request for Warden’s Review.183
The EBRPP’s grievance procedure also provides for an Emergency Procedure. The Inmate
Handbook provides as follows:
If a grievance is of such a nature that following the regular procedure and time limits would subject the inmate to substantial risk of personal injury or cause other serious and irreparable harm to the inmate, he/she may certify it an emergency by writing “Emergency” at the top of the grievance and the reasons…A written response will be given to the inmate as soon as possible but no later than 72 hours after the shift supervisor’s receive thereon.184 (emphasis
179 Id. page 26 H 180 Id. page 26 I 181 See ARP Affidavit of Warden Grimes and the attached EBRPP Inmate Rules and Regulations attached hereto as Exhibit 26a. 182 Id. page 26 I, K 183 See ARP Affidavit of Warden Grimes attached hereto as Exhibit 26. 184 See ARP Affidavit of Warden Grimes and EBRPP Inmate Rules and Regulations page 27 M Exhibit 26a attached hereto
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added)
The inmate may request a Warden’s review of the emergency grievance upon receiving a
response or upon the passing of 72 hours without a response. The warden or his designee will make a decision within 72 hours of request if the grievance is still an emergency.185
In this case, Clifton Belton filed this suit on May 4, 2020.186 Mr. Belton did not exhaust the EBRPP administrative remedies relating to COVID-19 prior to filing suit.187 On May 7, 2020,
three days after this suit was filed, the Sheriff’s Office received an inmate grievance from Mr. Belton related to his testing positive for the corona virus.188 On May 15, 2020 the Sheriff’s Office responded to Mr. Belton’s grievance as unfounded.189 Thereafter, Mr. Belton submitted a Request for Warden’s Review.190 On June 4, 2020 Warden Grimes responded to Mr. Belton’s Request for Warden’s Review as unfounded.191
An administrative remedy procedure was clearly available to Mr. Belton. In fact, Mr.
Belton filed a grievance and requested a Warden’s Review pursuant to the procedure. However,
the Sheriff’s Office did not receive Mr. Belton’s grievance until after Mr. Belton filed this suit on
May 4, 2020. Further, Mr. Belton did not exhaust the EBRPP’s administrative remedies prior to
filing this suit. Therefore, this suit is premature and should be dismissed.
We anticipate that Plaintiffs may argue that the U.S. Supreme Court’s decision in
Valentine, provides them with an exception to completing the administrative remedy procedure in
185 Id. page 27 Mii 186 Rec. Doc. 1 187 In fact, the other two named Plaintiffs in the proposed Sub-class of medically vulnerable inmates (Cedrick Franklin and Willie Shepherd) have not exhausted administrative remedies relating to a COVID-19 grievance. (See APR Affidavit of Warden Grimes attached hereto as Exhibit 26) 188 See ARP Affidavit of Warden Grimes attached hereto as Exhibit 26b with Clifton Belton Inmate Grievance attached. 189 See ARP Affidavit of Warden Grimes attached hereto as Exhibit 26c with Sheriff’s Office Response to Clifton Belton’s grievance attached. 190 Id. 191 See ARP Affidavit of Warden Grimes attached hereto as Exhibit 26d with Warden Grimes’ Response to Clifton Belton’s Request for Warden’s Review
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this case. However, the Supreme Court’s ruling in Valentine does not provide Plaintiffs in this case with relief from failing to complete the Administrative Remedy Procedure prior to filing suit. The U.S. Supreme Court denied plaintiffs’ application to vacate the Fifth Circuit’s stay of the preliminary injunction in the Valentine case which was based in part on a finding that the plaintiffs suit was premature because they failed to exhaust administrative remedies and such remedies were “available” as set forth above. In a “statement” by Justice Sotomayor, with whom Justice Ginsburg joined respecting the denial of application to vacate stay, Justice Sotomayor did not rule out the possibility that “where plaintiffs demonstrate that a prison grievance system cannot or will not respond to an inmate’s complaint, they could well satisfy an exception to the PLRA’s exhaustion requirement.”192 Justice Sotomayor commented that “if a plaintiff has established that the prison grievance procedures at issue are utterly incapable of responding to a rapidly spreading pandemic like Covid-19, the procedures may be “unavailable” to meet the plaintiff’s purposes, much in the way they would be if prison officials ignored the grievances entirely.”193 Justice Sotomayor cautioned “that in these unprecedented circumstances, where an inmate faces an imminent risk of harm that the grievance process cannot or does not answer, the PRLA’s textural exception could open the courthouse doors where they would otherwise stay closed.”194
In this case, the EBRPP’s administrative remedy procedure is capable of responding the COVID-19 pandemic. EBRPP’s procedures provide a method to file an emergency grievance that will be decided in 72 hours with a decision by the Warden pursuant to a Warden’s review within another 72 hours. The fact that Mr. Belton did not file an emergency grievance in this case, does not mean that the procedures are not available for inmates to avail themselves of expedited relief where the time limits would subject the inmate to substantial risk of personal injury or cause other
192 Valentine v. Collier, 2020 WL 2497541 *1 (2020) 193 Id 194 Id *3
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serious and irreparable harm. An administrative remedy procedure was clearly available to Mr. Belton. Mr. Belton did
not exhaust the EBRPP’s administrative remedies prior to filing this suit. Therefore, this suit is premature and should be dismissed.
B. Plaintiffs fail to establish the prerequisites for a mandatory TRO and cannot meet the heightened burden.
In order to obtain injunctive relief, Plaintiff must establish: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) that the threatened injury outweighs any harm that will result to the non-movant if the injunction is granted; and (4) that the injunction will not disserve the public interest.195 Plaintiffs are seeking a mandatory injunction. A “mandatory injunction affirmatively compels the doing of some act, rather than merely negatively forbidding continuation of a course of conduct…”196 Mandatory preliminary relief, which goes well beyond the maintaining of the status quo, is extremely disfavored, and only should be granted if the facts and law absolutely favor the moving party.197 If Plaintiffs fails to meet their burden regarding any of the necessary elements, the Court need not address the other elements necessary for granting a preliminary injunction.198
As discussed below, Plaintiffs cannot meet their heightened showing for the mandatory TRO and therefore, their TRO should be denied.
195 See Ridgely v. Fed. Emergency Mgmt. Agency, 512 F.3d 727, 734 (5th Cir. 2008). 196 State of Ala. v. United States, 304 F.2d 583, 590 (5th Cir.1962), aff'd sub nom. Alabama v. United States, 371 U.S. 37 (1962). 197 Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir.1976). 198 See Roho, Inc. v. Marquis, 902 F.2d 356, 261 (5th Cir. 1990) (declining to address the remaining elements necessary to obtain a preliminary injunction after finding that the plaintiff failed to show a substantial likelihood of success on the merits).
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C. Plaintiffs cannot show a substantial likelihood of prevailing on the merits of their underlying claims. 1. Eighth and Fourteen Amendment Claims
Plaintiffs claim that Defendants are violating the Subclass members who are post conviction’s Eighth Amendment rights and the pretrial Subclass members’ Fourteenth Amendment rights. Plaintiffs assert that Subclass members are likely to succeed on their claims because Defendants are subjecting detainees to an unreasonable level of risk in violation of pretrial detainees’ Fourteenth Amendment rights and are otherwise deliberately indifferent to the substantial risk that Medically Vulnerable Subclass members will contract COVID-19 within the current conditions at the jail, in violation of the Eighth Amendment.199 Plaintiffs assert that Defendants are unable to abate the probability of widespread COVID-19 infection and resultant high risk of severe illness or death.200 Plaintiffs assert that only release will sufficiently protect the medically vulnerable from the risk of death.201
Defendants have shown that they have in fact been able to abate widespread COVID-19 infections in the EBRPP. Further, Defendants have shown that the COVID-19 infection has not resulted in a high rate of severe illness or death of the inmates in EBRPP. Evidence shows that, due to safety measures implemented and practiced, the number of positive cases in the jail have consistently gone down since May 4, 2020.202 There have been no COVID-19 related deaths of inmates in EBRPP.203 Only three inmates were transferred to an outside hospital facility and all three recovered.204 Even more significantly, the number of new infections in the jail has not
199 Rec. Doc. 5-3 page 39 200 Rec. Doc. 5-3 page 40 201 Rec. Doc. 5-3 page 49 202 Exhibit 5y Graph of Positive Cases 203 Exhibit 7 Affidavit of CorrectHealth 204 Exhibit 5 Affidavit of Warden Grimes
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increased since May 12, 2020 (prior to the filing of this emergency TRO).205 There are currently only 6 COVID-19 positive cases in the EBRPP.206 As set forth below, Plaintiffs have failed to
demonstrate a substantial likelihood of success on their Eighth Amendment and Fourteenth
Amendment claims.
a. Plaintiffs have not demonstrated a substantial likelihood of success on their Eighth Amendment Claims.
The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.”207 Prison officials who act reasonably cannot be found liable under the Eighth Amendment.208An
Eighth Amendment conditions of confinement claim has two components, one objective and one subjective.209 To satisfy the objective requirement, the plaintiff must show “an objectively intolerable risk of harm.”210 To satisfy the subjective requirement, the plaintiff must show that the
defendant (1) was aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists; (2) subjectively drew the inference that risk existed; and (3) disregarded the risk.211 The incidence of diseases or infections, standing alone, do not imply unconstitutional
confinement conditions, since any densely populated residence may be subject to outbreaks.212Instead, the plaintiff must show a denial of “basic human needs.”213 “Deliberate indifference is an extremely high standard to meet.”214
On April 22, 2020, the Fifth Circuit issued an opinion in Valentine, a case involving the
205 Exhibit 5 Affidavit of Warden Grimes 206 Exhibit 5 Affidavit of Warden Grimes 207 U.S. Const. Amend. VIII 208 Farmer v. Brennan, 511 U.S. 825, 845 (1994) 209 Id. at 845 210 Valentine v. Collier, 956 F. 3d 797, 801 (5th Cir. 2020), denying motion to vacate stay2020 WL 2497541 (May 14, 2020). 211 Id. 212 Id. (citing Shepherd v. Dallas Cty., 591 F. 3d 445, 454 (5th Cir. 2009) (A Fourteenth Amendment conditions of confinement case) 213 Id. 214 Id. (quoting Cadena v. El Paso Cty., 946 F. 3d 717, 728 (5th Cir. 2020).
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COVID-19 pandemic and the Texas prison system. The Valentine opinion forecloses this Court’s ability to grant the injunctive relief Plaintiffs seek. 215 The plaintiffs in Valentine were inmates at a Texas Department of Criminal Justice (TDCJ) prison for the elderly and infirm.216 They filed a class action lawsuit on behalf of disabled and high-risk inmates against TDCJ, its executive director, and the prison warden. Like in this case, the plaintiffs alleged violations of the Eighth Amendment. The district court granted the plaintiffs a preliminary injunction that required TDCJ to take many specific steps regarding the TDCJ’s handling of the COVID-19 pandemic. TDCJ appealed and sought a stay of the preliminary injunction pending appeal.217
The Fifth Circuit granted TCDJ’s motion to stay the preliminary injunction. The Fifth Circuit determined that TDCJ was likely to prevail on appeal in part because, after accounting for the protective measures taken by TDCJ, Plaintiffs had not shown a “substantial risk of serious harm” that amounts to cruel and unusual punishment.218 The Fifth Circuit noted, “There is no doubt that infectious diseases generally and COVID-19 specifically can pose a risk of serious or fatal harm to prison inmates.”219 TDCJ submitted evidence of the protective measures it had taken, including access to soap, tissue, gloves, masks, regular cleaning, signage and education, and quarantine of new prisoners.220 The legal question was whether the Eight Amendment requires TDCJ to do more to mitigate the risk of harm.221 The district court acknowledged that its injunction required extra measures beyond TDCJ and CDC policies. The Fifth Circuit stated that there is no precedent holding that the CDC’s recommendations are insufficient to satisfy the Eighth
215 See Valentine, 956 F. 3d 797. 216 Id. at 799 217 Id. at 801 218 Id. at 801-02 219 Id. at 801-802. 220 Id. at 801-802 221 Id at 802
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Amendment.222 Further, the Fifth Circuit in Valentine held even assuming there is a substantial risk of
serious harm, the Valentine plaintiffs did not have evidence of TDCJ’s subjective indifference to that risk.223 Deliberate indifference requires the defendant to have a subjective state of mind “more blameworthy than negligence.”224The Fifth Circuit pointed out that the district court cited no evidence that TCDJ subjectively believed its measures were inadequate.225 The evidence showed TCDJ had taken and continued to take measures, informed by the CDC and medical professionals, to abate and control the virus.226 The Fifth Circuit stated that even if the district court might have done things differently, its disagreement with TDCJ’s medical decisions does not establish deliberate indifference.227
In a Fifth Circuit decision decided on April 27, 2020, Marlowe v. LeBlanc, 2020 WL 2043425 (5th Cir. 2020), the court held that it did not question that COVID-19 presents a risk of serious harm to those confined in prisons, nor that Plaintiff, as a diabetic is particularly vulnerable to the virus’s effects. But, for purposes of resolving Plaintiff’s constitutional claim, the question is whether the constitution requires Defendants to do more than they have already done to mitigate the risk of harm.228 The Court held that even if the first Farmer’s requirement is satisfied, there was no evidence establishing that Defendants subjectively believed that the measures they were (and continue) taking were inadequate.229 The Court noted that inadequate measures is not dispositive of the defendants’ mental state. The Fifth Circuit noted the record shows a plethora of measures the defendants are taking to abate the risks posed by COVID-19, from providing
222 Id. 223 Id. 224 Id. (quoting 225 Id. 226 Id. 227 Id. at 803 228 Marlowe at *2 229 Id. at *3
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prisoners with disinfectant spray and two cloth masks to limiting the number of prisoners in the infirmary lobby and painting markers on walkways to promote social distancing. In finding that Plaintiffs’ evidence did not demonstrate deliberate indifference, the Court in Marlowe noted that Defendants have been heightening their efforts to contain the virus.230
Plaintiffs assert that the objective test is met simply because COVID-19 is a serious and communicable disease such that the risk of contracting it is objectively unacceptable, particularly for medically vulnerable individuals.231 Plaintiffs’ argument must be rejected in light of the Fifth Circuit’s ruling in Valentine and Marlowe. The Fifth Circuit recognized that COVID-19 can pose a risk of serious or fatal harm to prison inmates and that certain inmates such as the plaintiff in Marlowe who was a diabetic is particularly vulnerable to the virus’s effect. However, the Fifth Circuit held that the legal question as to the objective standard was whether the Eighth Amendment requires correctional institutions to do more to mitigate the risk of harm than they are doing. In this case, like in Valentine and Marlowe, Defendants have shown that they have taken protective measures and continue to take measures, based on CDC guidelines for correctional institutions and by medical professionals. In fact, Defendants have taken the same measures mentioned by the Court in Valentine including access to soap, tissue, masks, regular cleaning, signage and education and quarantine of new prisoners. The Fifth Circuit in Valentine held that the TDCJ was not required to do more to mitigate the risk of harm. Thus, under the Fifth Circuit’s decision in Valentine, this Court must find that Plaintiffs have not demonstrated a substantial likelihood of prevailing on the merits because Plaintiffs have not shown a “substantial risk of serious harm” that amounts to cruel and unusual punishment.
Further, even if this Court were to find that there is a substantial risk of serious harm,
230 Id. at *3 231 Rec. Doc. 5-3 page 45
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Plaintiffs have not shown the Defendants’ subjective indifference to that risk. Plaintiffs assert that they have shown subjective deliberate indifference because it cannot be seriously disputed that any government official, including Defendants are aware of the risks posed by the coronavirus.232 However, this is not the test for subjective indifference as explained by the Fifth Circuit in Marlowe and Valentine. The Fifth Circuit pointed out that plaintiffs in Valentine and Marlowe did not show that defendants subjectively believed that they the measures that they were taken were inadequate. Like in Valentine and Marlowe, Plaintiffs have cited no evidence that Defendants believed its measures were inadequate. Plaintiffs have not demonstrated a substantial likelihood of success on their Eighth Amendment claims.
b. Plaintiffs have not demonstrated a substantial likelihood of success on their 14th Amendment Claims
The Supreme Court has long-held that, “Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a ‘retraction justified by the considerations underlying our penal system.’”233 The Supreme has further held that, “[T]he fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed.”234 The Supreme Court has held that a particular condition or restriction of pre-trial detention does not constitute “punishment” if it is reasonably related to a legitimate governmental objective.235 “Conversely, if a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua
232 Rec. Doc. 5-3 page 47 233 Wolff v. McDonnell, 418 U.S. 520, 535, 94 S. Ct. 2963, 2974, 41 L. Ed. 2nd 935 (1974) 234 Id. 418 U.S. at 556, 94 S. Ct. at 2974 235 Id. 441 U.S. at 539, 99 S. Ct. at 1874
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detainees.”236 As the Fifth Circuit has recognized while sitting en banc, “the reasonablerelationship test employed in conditions cases is functionally equivalent to the deliberate indifference standard employed in episodic cases.”237
In evaluating the constitutionality of conditions or restrictions of pre-trial detention, the proper inquiry is whether the conditions amount to punishment of the detainee.238 The Fifth Circuit has held that “when a pretrial detainee attacks the general conditions, practices, rules or restrictions of pretrial confinement,” courts should determine the constitutionality of the conditions using the test enumerated by the Supreme Court in Bell v. Wolfish, 441 U.S. 520 (1979).239 In Bell the Supreme Court explained that “the Government… may detain [a pretrial detainee] to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution”240 The Court emphasized that “[n]ot every disability imposed during pretrial detention amounts to ‘punishment’ in the constitutional sense.”241
To successfully set forth a condition of confinement claim, the plaintiff must show “(1) a rule or restriction, or identifiable intended condition or practice, or a jail official’s acts or omissions that were sufficiently extended or pervasive which was (2) not reasonably related to a legitimate government objective, and which (3) caused the violation of detainee’s constitutional rights.242 A detainee challenging jail conditions must demonstrate more than an incident; he must demonstrate a pervasive pattern of serious deficiencies in providing for his basic human needs; any lesser showing cannot prove punishment in violation of the detainee’s Due Process rights.243 “[I]solated
236 Wolfish, 441 U.S. at 539, 99 S. Ct. at 1874 237 Duvall v. Dallas Cty., Tex., 631 F. 3d 203, 207 (citing Scott v. Moore, 114 F. 3d 51, 54 (5th Cir. 1997) (en banc) 238 Bell v. Wolfish, 441 U.S. 520, 535, 99 S. Ct. 1861, 1872, 60 L. Ed. 2d 447 (1979) 239 Hare at 643 240 Bell at 536-537 241 Bell at 537 242 Duvall v. Dall. Cnty., Tex., 631 F. 3d 203, 207 (5th Cir. 2011) 243 Shepherd v. Dallas County, 591 F. 3d 445, 452-55 (5th Cir. 2009)
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examples of illness, injury or even death, standing alone, cannot prove that conditions of confinement are constitutionally inadequate.”
The effective management of a detention facility is a valid objective that may justify imposition of conditions and restrictions on pretrial detention.244 The Supreme Court in Bell explained that in determining “whether restrictions or conditions are reasonably related to the Government’s interest in…operating the institution in a manageable fashion,” courts must remember that “’[s]uch considerations are peculiarly within the province and professional expertise of corrections officials.’”245 Courts must not become “enmeshed in the minutiae of prison operations,” which will only distract from the question presented: “does the practice or condition violate the Constitution?”246
The Fifth Circuit has also recognized that, “[t]he Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones.”247 Plaintiffs must establish conditions which are so egregious that would offend “contemporary standards of decency.”248
Finally, the Fifth Circuit in Valentine recently pointed out in a case involving a request for injunctive relief related to COVID-19 in a prison, that “the Supreme Court has repeatedly warned that ‘it is ‘difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.’”249 The “incidence of diseases or infections, standing alone,” do not imply unconstitutional conditions, since any densely populated residence may be subject to
244 Estate of Henson v. Wichita County, Tex., 795 F. 3d 456 (5th Cir. 2015) 245 Bell at 540 246 Id at 544 247 Gates v. Cook, 376 F. 3d 323, 332 (5th Cir. 2004) (citing Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) 248 Hellng v. McKinney, 509 U. S. 25, 36, 113 S. Ct. 2475, 2482, 125 L. Ed. 2d 22 (1993) 249 Valentine, 803 quoting Woodford v. Ngo, 548 U.S. 81, 94, 126 S. Ct. 2378, 165 L Ed. 2d 368 (2006) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973))
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outbreaks.”250 Instead, the plaintiff must show a denial of “basic human needs.”251 Plaintiffs argue that Defendants are subjecting detainees to an unreasonable level of risk
(of contracting COVID-19) in violation of pretrial detainees’ Fourteenth Amendment rights.252 Plaintiffs assert that the unconstitutional conditions are that they are being held cramped and unsanitary conditions.253 Plaintiff asserts that these conditions impose a substantial risk of contracting COVID-19 and that once they are exposed, they are all vulnerable to severe illness or death, either because of their age, or because have underlying medical conditions.254
Plaintiffs have not shown a substantial likelihood of success on the merits of their Fourteenth Amendment conditions of confinement claim. Plaintiffs have not shown that they have been subjected to unconstitutional conditions of confinement related to their incarceration during the COVID-19 pandemic. Plaintiffs have not shown that they are subject to conditions of confinement that impose a substantial risk of contracting COVID-19. Plaintiffs have not shown that being held in “cramped” conditions or the sanitation conditions at the jail an unconstitutional condition that offends “contemporary standards of decency” or is a denial of “basic human rights.” Defendants have shown that they have taken measures for the inmates to practice social distancing as much as possible in the jail’s setting. Further, inmates have been supplied with face masks/coverings to use when/if social distancing is not possible. In addition, Defendants have shown that they have taken steps to increase the sanitation and cleaning of the jail in light of COVID-19 and they have provided inmates with soap, disinfectant, paper towels and other means to improve sanitization during the COVID pandemic.
Further, Plaintiffs have not shown that Defendants’ actions are not reasonably related to a
250 Valentine at p. 801 citing Shepherd v. Dallas Cty., 591 F. 3d 445, 454 (5th Cir. 2009) 251 Ibid. 252 Rec. Doc. 5-3 page 39 253 Rec.Doc. 5-3 page 42 254 Rec. Doc. 5-3 page 42
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legitimate governmental objective as opposed to being arbitrary or purposeless. Plaintiffs have not shown that Defendants knew that the steps they are taking in response to COVID-19 were inadequate. Defendants followed CDC guidelines and the advice of medical experts in infectious disease. Even if the steps taken by Defendants such as having to isolate positive inmates and quarantine those exposed to the virus, as well as the practice of quarantining all new arrivals to the jail result in more crowded or cramped conditions than normal, these actions are not arbitrary or purposeless; but are reasonably related to the legitimate governmental objective of stemming the spread of the virus throughout the jail, which they have successfully done.
Defendants have taken many steps to address the COVID-19 pandemic at the jail. The Fifth Circuit in Valentine recognized the importance of allowing prison officials the ability to administer their prisons. Further, the Supreme Court in Bell cautioned that Courts should not become “enmeshed in the minutiae of prion operations.” Plaintiffs have not demonstrated a substantial likelihood of success on their Fourteenth Amendment claims.
D. Plaintiffs have not shown that the Proposed Subclass members will suffer irreparable harm in the absence of a TRO mandatory release.
In order for a court to grant a TRO, a plaintiff must prove that he will suffer irreparable harm.255 In this case, Plaintiffs cannot meet their required burden of proving irreparable harm in the absence of a TRO. Irreparable harm must be likely, not merely speculative.256 It is not sufficient to claim a possibility of harm when demanding the extraordinary relief of a TRO.257 Plaintiffs allege that the proposed medically vulnerable subclass are at risk of death or contracting a deadly virus due to defendants’ actions. However, Defendants’ actions in response the COVID19 pandemic have been aimed and tailored to protect detainees from the risks of COVID-19. From
255 Marlowe v. LeBlanc, 2020 WL 2043425 (M.D. La. 2020) 256 See e.g., Winter v. Natural Resources Defense Council, Inc. 555 U.S. 7, 22 (2008). 257 Id.
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the start, officials from EBRPP, the City, and CorrectHealth put swift and targeted measures in place, wholly based on the CDC Guidelines,258 to mitigate the spread of COVID-19 in the jail.
In Marlow v. Leblanc, the Fifth Circuit reviewed a case which granted a preliminary
injunction to plaintiff seeking release from detention until the COVID-19 was no longer a threat within the Department of Corrections.259 The Defendants appealed and requested a stay order.260 The Fifth Circuit granted the Defendants’ request to stay the injunctive relief.261 The Fifth Circuit
importantly noted that the Plaintiff was unable to show irreparable harm when “accounting for the protective measures” put in place by the facility’s officials.262
Plaintiffs in this matter cannot show that when accounting for the procedures in place at
the jail, irreparable harm is likely. Evidence shows that, due to safety measures implemented and
practiced, the number of positive cases in the jail have consistently gone down since May 4, 2020.263 There have been no COVID-19 related deaths in EBRPP.264 Only three inmates were transferred to an outside hospital facility and all three recovered.265 Even more significantly, the
number of new infections in the jail has not increased since May 12, 2020 (prior to the filing of this emergency TRO).266 There are currently only 6 positive cases in isolation.267
Further, the three Plaintiffs described as medically vulnerable have admitted that they have
already contracted and survived COVID-19 without severe complications and without hospital intervention.268 Plaintiffs have provided no evidence showing that Plaintiffs are likely to contract
258 See Generally Exhibits 5, 6, 7, 27, 28 Affidavits of Warden Grimes, Major Fontenot, CorrectHealth, Darryl Gissel and Dan Godbee. 259 Marlowe 260 Id. 261 Id. 262 Id. 263 Exhibit 5y . Graph of Positive Cases 264 Exhibit 7 Affidavit of CorrectHealth 265 Exhibit 5 Affidavit of Warden Grimes 266 Exhibit 5 Affidavit of Warden Grimes 267 Exhibit 5 Affidavit of Warden Grimes 268 Rec. Doc. 5-14, 5-7, 5-6 Inmate statements of Belton, Shepherd, and Franklin
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the virus again, or that if they did become reinfected, the outcome would be any different.
In fact, it is unlikely that Plaintiffs will be reinfected as the literature does not support such
a theory. Angela Rasmussen, a virologist at Columbia University has stated, “[i]t appears people are not being reinfected, and the virus is not reactivating.269” She further stated that “[w]e can largely stop worrying about reinfection and address the next big questions.”270 This point was
affirmed by Carol Shoshkess Reiss, a professor of Biology and Neural Science at New York
University who has stated “[b]ut the general consensus in the scientific community- with all the
information available to date on the new coronavirus – is that people aren’t being reinfected, but rather falsely testing positive.”271 Even the media is filled with stories of doctors, nurses, and other
professionals who have recovered from COVID-19 working with those diagnosed with COVID19 in medical facilities.272 More so, the FDA has requested those who have recovered from
COVID-19 to donate their “anti-body rich” blood or plasma for the use in research to facilitate the much-anticipated therapies to help fight the disease or shorten the length of the illness.273
Therefore, although much is yet to be discovered about the novel-coronavirus, the current research
shows that those who have been infected with the virus are not likely to become reinfected. Thus,
Plaintiffs have little to fear since they admittedly recovered from COVID-19.
Any threat of harm to Plaintiffs, should their request for TRO be denied, is speculative at
best. Because Plaintiffs cannot show they are likely to suffer irreparable harm, the Court should
269 Erin Garcia de Jesus, New data suggest people aren’t getting reinfected with the coronavirus, Science News (May 19, 2020), https://www.sciencenews.org/article/coronavirus-covid19-reinfection-immune-response. 270 Id. 271 Yasemin Saplakoglu, Recovered patients who tested positive for COVID-19 likely not reinfected, LIVESCIENCE, (April 30, 2020) https://www.livescience.com/coronavirus-reinfections-were-false-positives.html. 272 See Dave McKinley, Bob Mancuso, Buffalo nurse who recovered from coronavirus back on front lines, 2WGRZ, (May 8, 2020), https://www.wgrz.com/article/news/health/coronavirus/buffalo-nurse-who-recovered-fromcoronavirus-back-on-front-lines/71-2ea010db-48b6-4442-a0ff-a50fa3a42fba. 273 Commissioner of Food and Drugs- Food and Drug Administration, Dr. Stephen Hahn, Coronavirus (COVID-19) Update: FDA Encourages Recovered Patients to Donate Plasma for Development of Blood-Related Therapies (April 16, 2020), https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-encouragesrecovered-patients-donate-plasma-development-blood.
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deny their request for injunctive relief. E. The threatened injury does not outweigh any harm to the Non-Movant The injunctive relief requested by Plaintiffs would irreparably injure Sheriff Defendants
because Plaintiffs are essentially asking that the federal court system take over the jail. In Sanchez v. Brown the court noted its “grave concerns about the power of the federal courts to take discretion away from such elected officials.”274 It further noted that sensitive policy decisions regarding safety goals as they relate to the jail population should be left to elected and appointed officials.275 Defendants have tirelessly worked towards the implementation of extensive safety policies and procedures to ensure the safety of the jail population. To usurp policy making power from Defendants at this time would jeopardize the effectiveness of the current system in place for the protection of the inmates.
F. Releasing the proposed medically vulnerable inmates is detrimental to the public interest.
Plaintiffs demand the release of medically vulnerable inmates. Plaintiffs claim this is the only way to protect the medically vulnerable from the health risks posed by COVID-19. However, the release of detainees without regard to the risk for society is detrimental to the public interest.
As shown above, COVID-19 has significantly declined in the jail and cases are not increasing as Plaintiffs have suggested. Plaintiffs have not shown the need for emergency relief under a TRO. Issuing a blanket release order for the proposed medically vulnerable class without considering society’s risk is detrimental to the public interest.
For example, Plaintiffs claim that Belton, Shepherd, and Franklin are medically vulnerable and thereby request their release through an emergency TRO. However, the release of these inmates places an unreasonable risk on society.
274 Sanchez v. Brown, 2020 WL 2615931 (N.D. Tex. 2020) 275 Id.
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As outlined above, Belton plead guilty to felony theft, Franklin plead guilty to sexual battery, and Shepherd is being detained on charges related to domestic violence, sexual assault, and false imprisonment. None of these crimes are victimless. Further, the information before the Court today is incomplete. Prior convictions for these three inmates are unknown. Therefore, the release of these three individuals risks the safety of their known victims as well as potential victims throughout society.
Plaintiffs claim that the release of the medically vulnerable will reduce the jail population and conserve resources. As mentioned supra, when the pandemic first reached Louisiana, officials from various agencies reviewed the charges of all detainees housed in the EBRPP. Based on their review, they compassionately released numerous amounts of detainees from the jail. Therefore, the jail population was already reduced and resources conserved. To date, the jail has proven to be in control of COVID-19 risks without endangering society. Plaintiffs have not shown that the mass release of medically vulnerable inmates outweighs the substantial threat to public safety.
G. Plaintiffs’ sworn plans upon release fail to resolve their fears. Belton, Shepherd, and Franklin all claim to fear the potential deadly effects of contracting COVID-19. However, their plans upon release would continue to expose them to the virus. Belton claims that upon release he would “check into a rehabilitative care facility” because one treated his sister and she recovered.276 It is unclear why he intends to go to a facility considering he has also fully recovered from COVID-19. His plan to leave the jail and go to a medical facility does not address his fears of reinfection because healthcare workers have a high chance of exposure. He also does not claim that he intends to quarantine or isolate for any amount of time after release. Franklin claims he intends to resume work at a restaurant where he was a kitchen
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supervisor.277 In this role, it would likely be impossible to socially distance and his exposure
would likely not be lessened.
Shepherd intends to “stay away from people who are sick.”278 He does not claim that he
intends to quarantine, isolate, or socially distance himself from asymptomatic individuals. His
plan only includes a marginal effort to avoid obviously symptomatic people.
Belton, Franklin, and Shepherd’s release plans do not promote the likelihood that their
fears of re-contracting the virus will be alleviated.
H. This Court does not have the Authority to Order the Immediate Release of Medically vulnerable Sub Class members.
1. Prison Litigation Reform Act (“PRLA”) precludes Plaintiffs’ claims.
Rule 65 allows a court to issue and preliminary injunction or temporary restraining order.
Rule 65(e) specifically states that Rule 65 does not modify the requirements of PRLA (28 U.S.C
§ 2284), which relates to actions that must be heard and decided by a three-judge district court.279
As the Supreme Court explained in Brown v. Plata, “[t]he authority to order release of prisoners .
. . is a power reserved to a three-judge district court, not a single-judge district court.280 Most
importantly, the PLRA significantly limits the issuance of preliminary and permanent injunctive
relief for “civil action[s] with respect to prison conditions” like this one.281 The PRLA has a
specific procedure that must be followed:282
Step #1: The presiding federal judge must: (1) issue an order for “less intrusive relief”; (2) give the defendant a “reasonable amount of time to
277 Rec. Doc. 5-6 Declaration of Cedrick Franklin 278 Rec Doc. 5-7 Declaration of Willie Shepherd 279 18 U.S.C. § 3626(a)(3)(B). 280 563 U.S. 493, 500 (2011) (citing 18 U.S.C. § 3626(a)); see also id. at 511 (“By its terms, the PLRA restricts the circumstances in which a court may enter an order ‘that has the purpose or effect of reducing or limiting the prison population.’”) (quoting 18 U.S.C. § 3626(g)(4)). 281 See 18 U.S.C. § 3626; id. at § 3626(g)(2) (defining “civil action with respect to prison conditions” to mean “any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison”); see also Nelson v. Campbell, 541 U.S. 637, 650 (2004). 282 18 U.S.C. § 3626 (emphasis added).
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comply with the . . . order[]”; and (3) find that this order “failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order.”283
Step #2: Once step #1 is met, either the party requesting relief, or the presiding judge can request the convening of a three-judge court to determine whether a prisoner release order should be entered.284
Step #3: The three-judge court then determines whether a prisoner release order should be entered, based on clear and convincing evidence that “(1) crowding is the primary cause of the violation of a Federal right, and (2) no other relief will remedy the violation of the Federal right.”285
It is abundantly clear that the PLRA restricts a court’s ability to issue a prisoner release
order, and habeas cannot used in this proceeding.286 Plaintiffs’ motion for injunctive relief seeks
the “release of Medically Vulnerable Subclass members.”287 The request for release is in violation
of all the mandatory elements in 18 U.S.C. § 3626. Further, as discussed above, only a three-judge
court can award such relief under the PLRA‘s clear language and binding Supreme Court
precedent. Accordingly, because none of the requirements of the PRLA have been met, this Court
has no authority to release the Plaintiffs. Therefore, they cannot show a likelihood to succeed on
the merits and their temporary restraining order should be denied.
2. This Court lacks Jurisdiction over Plaintiff’s request for Habeas relief.
The Supreme Court has established that habeas is not available to review questions
unrelated to the cause of detention.288 Habeas cannot be properly used for any other purpose than
relief from unlawful imprisonment or custody.289 Plaintiffs have not alleged any legitimate reasons
283 Id at § 3626(a)(3)(A). 284 Id at § 3626(a)(3)(C)–(D). 285 Id at § 3626(a)(3)(E). 286 The PLRA broadly defines a “prisoner release order” to cover “any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison.” Id. at § 3626(g)(4). 287 Rec. Doc. 5-3, page 54. 288 Pierre v. U.S., 525 F. 2d 933, 935 (5th Cir. 1976). See also Sanchez v. Brown, 2020 WL 2615931, at 12 (Tx. N.D. 5/22/2020). 289 Id.
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for unlawful imprisonment. The Supreme Court even stated that an inmate is not entitled to relief in an habeas corpus petition from a civil rights claim related to his conditions of confinement.290
Even so, were this Court to consider such relief, Plaintiffs have failed to exhaust available remedies, a requirement prior to seeking the writ.291 Finally, such relief is not appropriate for a
class of Plaintiffs when the court is not given the opportunity to review the individual
circumstances of each Plaintiff’s underlying criminal proceedings, much less hear from the victims of the Plaintiffs crimes.292 Such a review of a release would also require input from the judges and
prosecutors who are familiar with the Plaintiffs criminal case, including the Plaintiffs criminal defense attorney.293
3. Younger Abstention precludes Plaintiffs’ claims
Plaintiffs have admitted that they are seeking “relief from unlawful imprisonment or custody.”294 This is obviously misplaced and continues their show of unlikelihood of success on
the merits.
Federal Courts have a “virtually unflagging obligation” to exercise jurisdiction granted to them.295 Certain doctrines, however, require abstention in “extraordinary circumstances.”296 Such is the case here and in accordance with the Supreme Court decision of Younger v Harris.297
In Younger, the Supreme Court reversed a district federal court that enjoined a state district
attorney, Younger, from prosecuting Harris under the California Criminal Syndicalism Act, which
Harris claimed violated his constitutional rights. The Supreme Court in Younger found that the
290 Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). See also Sanchez v. Brown, 2020 WL 2615931, at 12 (Tx. N.D. 5/22/2020). 291 See also Sanchez v. Brown, 2020 WL 2615931, at 12 (Tx. N.D. 5/22/2020). 292 Id. 293 Id. 294 Rec. Doc. 5-3, page 52 295 Deakins v. Monaghan, 484 U.S. 193, 203 (1988) quoting Colorado River Water Conservation Dist. V. United States, 424 U.S. 800, 813,817 (1976). 296 Deakins at 203. 297 401 U.S. 37 (1971).
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injunction ran afoul of a national policy forbidding federal courts from staying or enjoining pending state court proceedings except under special circumstances.298 In Younger the Supreme Court recognized the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the states and their intuitions are left free to perform their separate functions in their separate ways. Central to Younger is the recognition that ours is a system in which “the National Government, anxious though it may be to vindicate and protect federal rights and federal interest, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the states.”299
In determining whether Younger applies, the courts apply a three (3) factor test derived from Middlesex County Ethics Commission v. Garden State Bar Association.300 The Middlesex factors are: “(1) the dispute must involve an “ongoing state judicial proceeding, (2) an important state interest in the subject matter of the proceeding must be implicated, and (3) the state proceeding must afford an adequate opportunity to raise constitutional challenges.”301 “When these requirements are met the federal district court has no choice but to dismiss the federal action; it may not abstain, nor may it stay the federal action pending resolution of the state proceedings.”302 The Younger abstention after a review of the Middlesex factors is appropriate in the matter at hand.
i. Middlesex factor (1) the dispute must involve an ongoing state judicial proceeding:
Plaintiffs are specifically seeking and asking the federal court to intervene in state court
298 Id at 39 – 41. 299 See Huffman v. Pursue, Ltd. 420 U.S. 592, 601 (1975) (quoting Younger, 401 U.S. at 43-45). 300 457 U.S. 423, 432 (1982). 301 Texas Ass/n of Business v. Earle, 388 F.3fd 515, 519 (5th Cir. 2004) citing Wightman v. Tex. Supreme Ct. 84 F3d 188, 189 (5th Cir. 1996). 302 Nall v. Stringer, 4 F.3d 989, 1993 WL 360771 at 3 (5th Cir. 1993).
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criminal proceedings.303 Plaintiffs are “challenging the very fact of their confinement.”304 Plaintiffs make it very clear, multiple times they are asking the Federal Court to enjoin an
ongoing criminal state proceeding. The further even clarify, “By this motion, Medically Vulnerable Subclass members are not seeking judicial intervention in order to alleviate harsh conditions…”305 In their state criminal proceedings all but one plaintiff has yet to be sentenced. In fact, the majority of them are in the status conference or motion stage. The one plaintiff that was sentenced on April 6, 2020, was then notified that he was being held from violating his probation from an earlier charge. He voluntarily waived his hearing before the Probation and Parole Board for the Parole Revocation Hearing and admitted he was in violation of his conditions from the previous probation conditions imposed from this State. Therefore, from their pleadings and the status of the criminal court cases, Plaintiffs are directly asking this Court to interfere with state court proceedings, which this Court, pursuant to Younger should abstain.
ii. Middlesex factor (2) an important state interest in the subject matter of the proceeding must be implicated:
Plaintiffs request that the federal court intercede and invade the province of the state district court criminal judge and insert itself into the state court proceeding. The State of Louisiana has a clear and significantly strong interest to enforce its criminal laws. Municipalities, states, and the federal government each have their own criminal codes, defining types of conduct that constitute crimes. Comity requires that the prosecution of the criminal proceeding, and the associated orders and judgments that may be issued by the state court in connection with that prosecution be left to the state court, and the federal court should abstain from the matter.
303 Rec. Doc. 5-3, page 52. 304 Id. (emphasis in original) 305 Id.
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iii. Middlesex factor (3), the state proceeding must afford an adequate opportunity to raise constitutional challenges:
Plaintiffs are afforded the same rights as every other criminal defendant that appears before a state court. They can seek modifications or appeal orders and judgments to a higher state court. State district court judges, state appellate court judges, and even the Louisiana Supreme Court Justices are capable of holding hearings, receiving or requesting evidence, and hearing arguments to vindicate litigant’s constitutional rights. Plaintiffs are afforded an adequate opportunity to raise complex constitutional challenges and obtain relief in the state court proceedings. The Supreme Court echoed this in O’Sullivan v. Boerckel where they said, “Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief.”306 The three medically vulnerable inmates that are designated in Plaintiffs’ subclass are Clifton Belton, Jr., Cedric Franklin, and Willie Shepard.
Clifton Belton is a post-conviction inmate. He was booked into East Baton Rouge Parish Prison on December 9, 2018 for retail theft under La. R.S. 14:67, Resisting and officer La. R.S. 14:108, and 3 fugitive from justice charges; (1) Fugitive from justice BRPD file # 26611, (2) Fugitive from justice West Baton Rouge file #26611, and (3) Fugitive from justice from Livingston file #26611.307 In the Nineteenth Judicial District (“19th JDC”), before Judge Johnson, he plead guilty to one count of La. R.S. 14:67 Felony Theft in Docket #07-18-0435 on September 25, 2019.308 He agreed to a sentence to of four years at hard labor to run concurrently with any and all other time. This case was set for sentencing on April 15, 2020, and, at defense counsel’s request, it was reset to July 20, 2020 while Mr. Belton resolves his pending cases in other parishes.
306 O'Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999), citing Rose v. Lundy, 455 U.S. 509, 515-516, (1982); Darr v. Burford, 339 U.S. 200, 204, (1950). 307 See Exhibit 9. 308 See Exhibit 10.
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In West Baton Rouge Parish, he has charges of: (1) La. R.S. 14:67, Felony Theft;309 (2) La. R.S.
14:67, Misdemeanor Theft;310 and (3) La. R.S. 14:68, Simple Robbery.311 His next court date is
June 22, 2020.312 In Livingston Parish, he has an outstanding affidavit warrant for simple burglary,
which he has not yet been booked.313 He also is facing charges in Ascension Parish on La. R.S.
14:27 / La. R.S. 14: 67, Attempted Felony Theft.314 His next court date is July 21, 2020.315
Therefore, it is apparent that Mr. Belton has ongoing state court proceedings to which he is
afforded adequate opportunity to raise a constitutional challenge, such as his confinement.
Cedric Franklin is a post-conviction inmate. He was booked into East Baton Rouge Parish
jail on with violations of La. R.S. 14:43 misdemeanor sexual battery and La R.S. 40:966(C)(2) &
(C)(23) felony possession of ecstasy.316 He was arrested and was booked into the East Baton Rouge
Parish Prison on January 6, 2020.317 Before Judge Trudy White, in the 19th JDC, he plead guilty
under Docket #07-17-0073 to the amended charge of misdemeanor sexual battery January 6,
2020.318 He was sentenced to 6 months at parish prison.319 On that same day and before Judge
Trudy White, he plead guilty to possession of a schedule 1 controlled substance, specifically
Ecstasy, under Docket #03-17-0501.320 He was sentenced to 2 years at EBPRR in with the
sentences running concurrently.321 Mr. Franklin is scheduled for release on January 2, 2021.322
Therefore, it is apparent that Mr. Franklin has an ongoing state court proceedings to which he is
309 See Exhibit 11. 310 See Exhibit 12. 311 See Exhibit 13. 312 See Exhibit 11. 313 See Exhibit 9. 314 See Exhibit 14. 315 See Exhibit 15. 316 See Exhibit 16. 317 Id. 318 See Exhibit 17. 319 Id. 320 See Exhibit 18. 321 Id. 322 See Exhibit 17.
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afforded adequate opportunity to raise a constitutional challenge, such as his confinement. Willie Shepherd is a pretrial detainee. He was booked into East Baton Rouge Parish Prison
on February 26, 2020 on the following charges; La. R.S. 14:35.3, Domestic Abuse Battery, two counts of La. R.S. 14:43.1, Sexual Battery, La. R.S. 14:38, Simple Assault 14:38, La. R.S. 14:46, False Imprisonment, and La. R.S. 14:133.2, Misrepresentation During Booking.323 His Bill of Information on Docket #20-01854 – La. R.S. 14:108, Resisting an Officer, was filed April 22, 2020.324 His Bills of Information for Dockets #20-01855, La. R.S. 14:35.3, Domestic Abuse Battery, La. R.S. 14:46, False Imprisonment, and La. R.S. 14:133.2, Misrepresentation During Booking;325 and Docket #20-01856, two counts of La. R.S. 14:43.1, Sexual Battery, were filed on May 14, 2020.326 Currently, he is scheduled for a status conference on all three of his open dockets on June 24, 2020.327 On March 4, 2020, his bond was set at $15,000 plus abiding by terms of a protective order and residing with his mother. He was rearrested and booked into EBRPP on March 7, 2020 on the charge of La. R.S. 14:108, Resisting an Officer.328 Therefore, it is apparent that Mr. Shepherd has an ongoing state court proceedings to which he is afforded adequate opportunity to raise a constitutional challenge, such as his confinement.
It should be noted that it is not pled or alleged that any of the Plaintiffs’, subclass or not, have attempted to remedy their confinement, as required in Middlesex and O’Sullivan, therefore affirming that this Honorable Court should abstain from inserting itself in state court proceedings.
Based upon the foregoing, this Honorable Court should deny Plaintiffs’ Motion for Temporary Restraining Order pursuant to the Younger Abstention Doctrine. This is a clear case in
323 See Exhibit 19. 324 See Exhibit 20. 325 See Exhibit 21. 326 See Exhibit 22. 327 See Exhibits 23, 24, 25 328 See Exhibit 19 page 1.
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which all three of the Middlesex factors are met, as discussed above, and the federal court should
not interfere in the state court’s authority to enforce its laws in its own courts.
I. The Sheriff is not the proper party to release inmates.
Here, the Sheriff does not have the ability to release prisoners. In fact, he can only release a prisoner once the proper State authority orders us too.329 According to the Louisiana Constitution,
“He shall be the chief law enforcement officer in the parish, except as otherwise provided by this constitution, and shall execute court orders and process.”330 The Sheriff’s duty is simply to “be
the keeper of the public jail of his parish, and shall by all lawful means preserve the peace and apprehend all disturbers thereof, and other public offenders.”331 He is to supply each prisoner with food and clothing.332 The Sheriff can transfer prisoners between parishes, and is bound to keep the prisoner safe subject to orders and decrees from the issuing parish.333 None of the enumerated
statutes outlining the duties of the Sheriff grant him the authority to release prisoners. Legislative
intent is clear because they later enumerate the Secretary of Louisiana Department of Corrections does have the power to temporary release of any inmate.334 The Legislature even specifically enumerates the only time when the Sheriff can release inmates.335 It pertains to overcrowding and a declaration of emergency must be made by the Sheriff.336 That is not present here. Plaintiffs even note that the jail is not overcrowded.337 They allege EBRPP currently has 1,200 detainees but is designed to hold nearly 1,600.338 Further, the Sheriff has not made any type of declaration as it
relates to overcrowding or otherwise, nor is it alleged that he has done such.
329 See La. Const. Art. V, § 27. 330 Id. 331 La. R.S. 15:704. 332 La. R.S. 15:705 333 La. R.S. 15:706 334 La. R.S. 15:833.2 (emphasis added). 335 La. R.S. 15:764 336 Id at (A). 337 Rec. Roc. 5-3, page 13 and 18. 338 Id.
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Further, “inmates shall not be released from the institution until legal authority and positive identification have been verified.”339 It is well established that “the words “until released according to the law” in warrants of arrest require sheriff to hold person arrested until he is released in method that the law provides, and right to determine that question rests with the District Attorney, but if prisoner furnishes bail, has served his sentence, is acquitted, the District Attorney enters a nolle prosequi or orders his release because of decision not to prosecute, the prisoner should be released.”340 In fact, it is specifically enumerated that “Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.”341 It is well established that the Sheriff also does not have the ability the fix bail or modify it. In fact, the Legislature listed those that do have the authority, “(1) District courts and their commissioners having criminal jurisdiction, in all cases. (2) City or parish courts and municipal and traffic courts of New Orleans having criminal jurisdiction, in cases not capital. (3) Mayor's courts and traffic courts in criminal cases within their trial jurisdiction. (4) Juvenile and family courts in criminal cases within their trial jurisdiction. (5) Justices of the peace in cases not capital or necessarily punishable at hard labor.”342 They further went on to clarify that “an order fixing bail may issue on request of the state or defendant, or on the initiative of the magistrate.”343
Based on the foregoing it is plain to see the Sheriff is simply the keeper of the jail. He does not decide who to prosecute or how. He does not decide how to apply bond, what bail should be set at, set conditions of release, or retain the ability to issue an order to release an inmate.
339 La. Admin Code tit. 22, Part III, § 3315 (emphasis added). 340 Op. Atty. Gen. 1936-38, p. 149. 341 La. Code of Crim. P. art. 61. 342 La. Code of Crim. P. art. 314(A). 343 Id at (B).
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J. Plaintiffs’ request for the release of medically vulnerable inmates violates the PRLA’s requirement that any award of preliminary relief be narrowly drawn.
Plaintiffs assert that the only remedy to protect medically vulnerable inmates is to order their release from the jail. This argument runs afoul of the PRLA’s requirement that any award of preliminary relief be narrowly drawn. The PRLA also states that any award of preliminary or prospective relief must: (1) be narrowly drawn; (2) extend no further than necessary to correct the violation of the Federal right; and (3) be the least intrusive means necessary to correct the violation of the Federal right.344 Further, before awarding such relief, the court must “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.”345 This was even recognized in Valentine v. Collier a recently decided by the Fifth Circuit Court of Appeals, during and pertaining to the application of the PRLA during the COVID-19 pandemic. They reiterated that “the PRLA mandates that ‘[p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.’”346
K. Federal District Courts Have Denied Similar Requests for Protective Orders Seeking Release of Prisoners for Covid Concerns
Federal District Courts across the country have denied similar requests by inmate Plaintiffs seeking Temporary Restraining Orders or Preliminary Injunctions for the release of inmates to home confinement and/or to be put on medical furlough due to Covid 19 concerns.
In Money v. J.B. Pritzer, 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020), ten state prison inmates brought a purported class action lawsuit seeking the release of inmates from Illinois Department of Corrections (IDOC) facilities arising from the COVID-19 pandemic, asserting claims under the Eighth Amendment and violation of inmates' right to due process under the
344 18 U.S.C. § 3626(a)(1)–(a)(2). 345 Id. See also Valentine v. Collier, 956 F. 3d 797, 806 (5th Cir. 4/22/2020). 346 Valentine v. Collier, 956 F. 3d 797, 806 (5th Cir. 4/22/2020), citing 18 U.S.C. §3626(a)(2).
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Fourteenth Amendment, both pursuant to § 1983, asking the court to preliminarily certify inmates'
proposed subclasses and order Defendants to transfer members of subclasses to their homes to
self-isolate via a temporary medical furlough. The Money Court denied Plaintiff’s Request for
Injunctive Release for the following reasons.
In determining the applicable law for such requests, the Court held that the PLRA347
applied because Plaintiffs’ claims seeking an order to “release or relocate” inmates on account of
the COVID-19 pandemic implicates every aspect of the PLRA's remedial scheme. Having ruled
it applicable, the Court then held that the PLRA “prevents” the Court from granting release of
inmates based on prison conditions and COVID-19, stating:
PLRA prevents this Court from granting the temporary restraining order on the Section 1983 claim, for a number of reasons. First, the statute provides that “no court shall enter a prisoner release order unless * * * a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right,” and the defendants have “had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. § 3626(a)(3)(A)(i), (ii). Here, there is no such “previous court order[ ].” Id. Second, the statute provides that “only” a “threejudge court” can enter a prisoner release order. 18 U.S.C. § 3626(a)(3)(B). So, this Court, standing alone, lacks the authority to issue any order that has the “purpose or effect of reducing or limiting the prison population.” Id.; 18 U.S.C. § 3626(g)(4). Third, the statute provides that “[p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2).348
Although the applicability of the PRLA alone requires denial of Plaintiffs’ request
347 The Prison Litigation Reform Act (“PLRA”) imposes additional restrictions on a court's ability to grant injunctive relief. Any such “[1] relief must be narrowly drawn, [2] extend no further than necessary to correct the harm the court finds requires preliminary relief, and [3] be the least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2). The PLRA requires that courts “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity[.]” Id. Preliminary relief relating to prison conditions “shall automatically expire on the date that is 90 days after its entry, unless the court makes findings required under subsection (a)(1) for the entry of prospective relief and makes the order final before the expiration of the 90-day period.”. 348 Id. at 14 citing Plata v. Newsom, ––– F. Supp. 3d ––––, ––––, 2020 WL 1908776, at * 1 (N.D. Cal. Apr. 17, 2020) (similar). See 18 U.S.C. § 3626(a)(3)(A) (stating PLRA applies to “any civil action in federal court with respect to prison conditions”); Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 2016) (stating prisoner must comply with PLRA if claim challenges any “aspect of prison life” other than “fact or duration of the conviction or sentence”).
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for injunctive relieve, the Money Court continued its analysis stating that even if it is
incorrect in its applicability of the PRLA to the instant case, there are still major hurdles to
overcome with regard to class certification, such as, the public interest—which must be
taken into account when considering a TRO or preliminary injunction—which mandates
individualized consideration (which is problematic for the commonality requirement of
certification) of any inmate's suitability for release and the appropriate conditions for the
safety of the inmate, the inmate's family, and the public at large. The Court explained such
conditions as follows:
From the family perspective, an inmate who has been exposed to someone (inmate or IDOC personnel) who has tested positive may not be suitable for furlough, particularly if the inmate's proposed destination is a residence already occupied by someone equally or more vulnerable. And from the public's perspective, it is important to bear in mind that some portion of the incarcerated population has been convicted of the most serious crimes—murder, rape, domestic battery, and so on. Seven of the ten named Plaintiffs in fact are serving time for murder. As Plaintiffs rightly acknowledge, some release orders would be appropriate only with conditions, such as home detention or lesser forms of supervision. And those conditions can only be imposed with resources (e.g., electronic monitors) and personnel, who are both limited in supply and also subject to the same social distancing imperatives as everyone else.
The imperative of individualized determinations, recognized by both sides in this case, makes this case inappropriate for class treatment.349 Each putative class member comes with a unique situation—different crimes, sentences, outdates, disciplinary histories, age, medical history, places of incarceration, proximity to infected inmates, availability of a home landing spot, likelihood of transmitting the virus to someone at home detention, likelihood of violation or recidivism, and danger to the community.
The Court then underlines additional problems that Plaintiff’s Request for Injunctive relief
raises with regard to potential separation of powers issues, stating:
Plaintiffs' motion also raises serious concerns under core principles of federalism and the separation of powers, especially given their request for sweeping relief in the form of a mandatory injunction. See Missouri v. Jenkins, 495 U.S. 33, 51, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990).
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There are serious separation of powers concerns, too, because running and overseeing prisons is traditionally the province of the executive and legislative branches. See Turner, 482 U.S. at 84-85, 107 S.Ct. 2254 (“Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint.”). The judiciary is ill-equipped to manage decisions about how best to manage any inmate population—let alone a statewide population of tens of thousands of people scattered across more than a dozen facilities. And the concern about institutional competence is especially great where, as here, there is an ongoing, fast-moving public health emergency.
Lastly, in spite of the above legal bases for denial of Plaintiff’s Request for Injunctive
Relief as a matter of law, in the interest of completeness, the Court addressed the merits of
Plaintiff’s Request for Injunctive Relief and found that under the “deliberated indifference”
standard, Plaintiffs have no chance of success on the merits given that Defendants have come
forward with a lengthy list of the actions they have taken to protect the inmates. Turning to the
remaining factors of injunctive relief, the Court reasoned as follows:
The final factor in the “second stage,” the public interest, also cuts both ways. As Plaintiffs stress, the public interest surely is served by avoiding widespread outbreaks of COVID-19 infection, and prison environments present a heightened risk of such outbreaks occurring, as evidenced at Stateville and the Cook County Jail. These are good reasons for Defendants to work hard to reduce the prison population, and especially to remove the highest-risk inmates, either though outright release or transfer to some other location while still in custody, provided that doing so is consistent with the public interest. But every release order carries with it some risk to the rest of the community. Has the inmate been exposed to the virus while in custody? Does another vulnerable person—perhaps an 80-year old mother with emphysema—live at the residence where the inmate will be released? Does the inmate have a history of mental instability or domestic violence? Are there adequate safeguards—monitoring or supervision—for releasees who are both vulnerable and dangerous? How does the increased activity associated with release orders in the quantities sought by Plaintiffs comport with the mandate for social distancing? Finally, as alluded to above, the public interest also commands respect for federalism and comity, which means that courts must approach the entire enterprise of federal judicial intrusion into the core activities of the state cautiously and with humility. This is not to say that intrusion would not be justified if the state government sat silently during a pandemic; if that were the case, the Court would
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be prepared to request sua sponte the formation of a three-judge court to take up Plaintiffs' complaint. But the absence of a plausible case on the merits and doubts about the balancing of the harms and public interest reinforce the decision to deny injunctive relief at this time.
Relying on the Money, supra., the District Court of Oregon, in Maney v. Brown, 2020 WL 2839423 (D. Ore. June 1, 2020), similarly denied a Motion for Temporary Restraining Order and Preliminary Injunction, where Plaintiffs, seven adults in custody at four various Oregon Department of Corrections Institutions, asserted that Defendants' response to COVID-19 violated their Eighth Amendment right to reasonable protection from severe illness or death, and asked the Court to: (1) direct Defendants to “take every action within their power to reduce the risk of COVID-19” in all of ODOC's institutions; (2) require Defendants to “reduce prisoner population to levels” to enable social distancing; (3) appoint an expert to effectuate that reduction; (4) provide safe and non-punitive separation housing for infected AICs (adults in custody) or those at risk of being infected with COVID-19; and (5) comply with CDC and OHA guidance. Each of the Maney Plaintiffs claimed to have suffered from underlying medical conditions, ostensibly making them more vulnerable to the virus.
Defendants argued that the PLRA prohibited the Court from granting Plaintiffs' motion to the extent Plaintiffs were the Court to order the release the inmates to reduce the prison population. The Court agreed, stating:
In civil actions concerning prison conditions, federal district courts cannot order the release of individuals in custody unless the “court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right” and “the defendant has had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. § 3626(a)(3)(A)(i)-(ii). Furthermore, “[a] ‘prisoner release order’ may be issued only by a three-judge court.” Plata v. Newsom, --- F. Supp. 3d ---, 2020 WL 1908776, at *10 (N.D. Cal. 2020) (citing § 3626(a)(3)(B)).350
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With regard to the injunction, the Court explained that The Court must evaluate the four factors outlined by the Supreme Court in Winter to determine if Plaintiffs have established the need for preliminary injunctive relief: (1) likelihood of success on the merits, (2) irreparable harm in the absence of preliminary relief, (3) the balance of equities, and (4) the public interest. See Winter, 555 U.S. at 20. After review of the record, the Court held that as the record demonstrated that the correctional institution made a valiant effort to date to respond to the COVID-19 pandemic. Citing Money, 2020 WL 1820660, at *18 (finding that the “record simply does not support any suggestion that Defendants have turned the kind of blind eye and deaf ear to a known problem that would indicate ‘total unconcern’ for the inmates' welfare”) (quoting Rosario v. Brawn, 670 F.3d 816, 821 (7th Cir. 2012)). Thus, Plaintiffs were therefore unlikely to succeed in demonstrating that Defendants acted with deliberate indifference.
The Court also underscored that injunctive relief would cause issues with regard to separation of powers, stating:
Any injunctive relief this Court could order would implicate important federalism and separation of powers concerns. See Money, 2020 WL 1820660, at *16-19 (explaining that “running and overseeing prisons is traditionally the province of the executive and legislative branches” and that “the public interest also commands respect for federalism and comity, which means that courts must approach the entire enterprise of federal judicial intrusion into the core activities of the state cautiously and with humility”).
Thus, the Court denied Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction.
The Southern District Court of California similarly denied a Motion seeking a TRO for the release of the medically vulnerable pretrial and post-conviction detainee subclasses of inmates whom were medically vulnerable in Alvarez v. Larose, 2020 WL 2315807 (S.D. Cal. May 12, 2020), holding that the PLRA precludes the relief sought and therefore, Plaintiffs cannot satisfy the burden of showing that there is a likelihood of success on the merits as required for obtaining
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injunctive relief. In Alvarez, the medically vulnerable Plaintiffs were defined as individuals of 45 years of age or older or who have medical conditions that the CDC has determined increase their likelihood of becoming severely ill from COVID-19. Plaintiffs alleged that the correctional facilities’ failure to implement adequate measures to protect detainees amounted to unconstitutional punishment in violation of the Fifth Amendment and deliberate indifference to the detainees' rights under the Eighth Amendment.
The Court explained that in order to establish a showing of injunctive relief, the Plaintiffs must demonstrate “ ‘[they are] likely to succeed on the merits, that [they are] likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the public interest.’ ” Am. Trucking Ass'ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20, 129 S.Ct. 365).
In opposition to Plaintiff’s request for injunctive relief, Defendants did not concede Plaintiffs' factual allegations but contended that Plaintiffs were not likely to succeed on the merits because the PLRA precludes this Court from issuing Plaintiffs’ requested relief.351 Thus, Plaintiffs could not satisfy the first requisite of injunctive relief.
Given that the Plaintiffs were challenging confinement conditions and requesting release, that Court reasoned that the substance of their claim and form of relief fell squarely within the purview of a “prisoner release order” under the PLRA. Thus, the Court held that because the Court may not grant the requested relief, Plaintiffs cannot establish a likelihood of success on the merits of their claim, stating:
There is no dispute Plaintiffs are “prisoners” under the PLRA, and if subject to its provisions this Court may not order the release of Plaintiffs. For the reasons set forth below, the Court finds the PLRA applies to Plaintiffs' claims and divests the Court of authority to grant the requested relief. Accordingly, Plaintiffs' motion for temporary restraining order is denied.
351 In light of Defendants' arguments under the PLRA, the Court deferred briefing on class certification. 57

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While the Court made clear that injunctive relief fails on that basis alone, it nonetheless, briefly addressed the remaining three factors and found that even a strong showing of irreparable injury and the fact that there were 66 cases of COVID and the Plaintiffs’ subclass members have a heightened risk of contraction COVID, injunctive relief cannot be granted absent a showing of a likelihood of success on the merits. Lastly, with regard to the remaining factors for injunctive relief, the Court held:
Plaintiffs also do not satisfy the remaining two factors of injunctive relief. The Supreme Court has held that where the government is the party opposing an injunction, the balance of the equities and public interest injunctive relief factors tend to merge. See Nken v. Holder, 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009); Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). Here, the Court could not issue injunctive relief without unfairly intruding on Defendants' operation of the prison system and defying Congress's clear policy determinations regarding challenges to prison conditions and prisoner release orders. In addition, the public interest does not favor the immediate release of a class of inmates who may lack viable housing outside of OMDC and may be deprived of access to food, means of personal hygiene, and medical care if released, all at once, from the facility. Plaintiffs have failed to meet their burden of demonstrating the injunctive relief factors weigh in favor of granting a TRO.
For these reasons, Plaintiffs' Motion for Temporary Restraining Order is denied. In Baxley v. Jividen, 2020 WL 1802935 (S.D. W. Va. Apr. 8, 2020), Plaintiffs filed a Motion for a Preliminary Injunction on March 25, 2020, seeking two forms of injunctive relief. First, they moved for an order requiring Defendants to “develop, disclose, and implement a plan that undertakes all appropriate actions to protect Plaintiffs and others who are similarly situated,” and second, they requested the Court order “WVDCR to release a sufficient number of inmates [to] reduce overcrowding and allow for appropriate social distancing within the jails and prisons to protect medically vulnerable inmates.” The plaintiffs are divided into two putative classes: Class A, which included those inmates with a discernable, treatable medical and/or mental health
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problem, and Class B, which included all others.352
Having determined that Plaintiffs would likely suffer irreparable harm absent a plan to
mitigate the spread of COVID-19 in state prisons, the Court then considered whether Plaintiffs
were likely to succeed on the merits of their deliberate indifference claims, and found this factor
not met, stating:
Deliberate indifference, in turn, “is a very high standard [and] a showing of mere negligence will not meet it.” Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999). For a prisoner to state a claim for deliberate indifference to her medical needs under § 1983, she “must demonstrate (1) a deprivation of [her] rights by the defendant that is, objectively, sufficiently serious and (2) that the defendant's state of mind was one of deliberate indifference to inmate health or safety.” Carroll v. W. Va. Reg'l Jail & Corr. Facility Auth., No. 3:14-1702, 2015 WL 1395886, at *6 (S.D.W. Va. Mar. 25, 2015) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)) (internal quotations omitted). Regarding the second prong in particular, a plaintiff must demonstrate that a defendant “actually knew of and disregarded a substantial risk of serious injury to the detainee.” Young v. City of Mount Rainer, 238 F.3d 567, 575–76 (4th Cir. 2001). “The subjective component therefore sets a particularly high bar to recovery.” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). It is this high bar that makes it unlikely that Plaintiffs could succeed on the merits of their claims.353
The Court further stated:
Yet determinations regarding release and furlough must be made on a case-by-case basis, taking into account the seriousness of an inmate's underlying offense and the support network into which she will be discharged.
it is impossible to conclude that Defendants have acted with the sort of deliberate indifference that could give rise to a constitutional violation under the Eighth and Fourteenth Amendments. As such, the Court finds that Plaintiffs have not demonstrated a substantial likelihood of success on the merits of their claims.
Yet the Court is not free to ignore the steps Defendants have already taken to address the virus, which are comprehensive and based on best practices promulgated by a source Plaintiffs already appear to trust. These facts make it exceedingly unlikely that Plaintiffs could succeed on the merits of their claim that Defendants have acted with deliberate indifference toward inmates' medical needs in light of COVID-19.
352 Id. at 1. 353 Id. at 6.
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*

*

*

The Court will not “immerse [itself] in the management of state prisons” absent the most extraordinary circumstances. Taylor, 34 F.3d at 268.354

Plaintiffs' Motion was therefore denied.

L. This Court Recently Denied Injunctive Relief Due to Covid Concerns Under Analogous Circumstances
In Gumns v. Edwards, 2020 WL 2510248 (M.D. La. May 15, 2020), the Court considered the Emergency Motion for Temporary Restraining Order Enjoining Defendants from Transferring COVID-19 Carriers to Louisiana State Penitentiary filed by fifteen inmate Plaintiffs, on behalf of themselves and all similarly situated individuals (collectively, “Plaintiffs”). The subject of Plaintiffs' motion was the COVID-19 response transfer plan developed by Defendants, by which COVID-19 positive inmates housed in state and parish jails and prisons would be transferred to Camp J, at Louisiana State Penitentiary at Angola (“LSP”), for isolation and medical monitoring.355
Plaintiffs purported to represent a class defined as: All prisoners and pretrial detainees who are, or will in the future be, subjected to the medical care policies and practices of the DOC, and subjected to the DOC's COVID-19 policies and practices. Plaintiffs proposed a declaratory and injunctive subclass of all incarcerated individuals who are, or will in the future be, subjected to the medical care policies and practices of the DOC, and subjected to the DOC's COVID-19 policies and practices (“Subclass I”). Plaintiffs also proposed a declaratory and injunctive subclass of all individuals being held in pre-trial detention who are, or will in the future be, subjected to the

354 Id. at 8. 355 While in the instant case Plaintiffs are seeking an Order from this Court to compel the release of certain inmates, as opposed to the Gumn Plaintiffs, who were seeking to prevent the release, the Gumn case is authoritative (or highly persuasive at the least) in that it too involves a request for Judicial intrusion on how best to manage an inmate population, which is traditionally within the province of the executive and legislative branches. See Money, supra.
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medical care policies and practices of the DOC, and subjected to the DOC's COVID-19 policies
and practices (“Subclass II”).
Plaintiffs sued Defendants pursuant to 42 U.S.C. § 1983, alleging that Defendants have
violated the Eighth Amendment rights of Subclasses I & II in their deliberate indifference to the
serious risk of harm posed by COVID-19, and violated the Fourteenth Amendment rights of
Subclass II to reasonably safe living conditions. Defendants maintain that Plaintiffs' claims are not
justiciable because Plaintiffs failed to exhaust administrative remedies as required by the Prison
Litigation Reform Act (“PLRA”). Defendants further maintain that Plaintiffs have failed to meet the burden for the issuance of a TRO or preliminary injunction.356
Applying the PRLA, the Court noted that In the context of COVID-19 exigencies, the Fifth
Circuit has recently made it clear that there is no emergency exception or “interest of justice”
exception to the PLRA's exhaustion requirement. Of further significance, this Court then stated:
In accordance with the Prison Litigation Reform Act (‘PLRA’), preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the violation of the federal right, and be the least intrusive means necessary to correct the harm.”357
Addressing general policy concerns with the Courts intrusion into the affairs of prison
administration, this Court stated:
Federal Courts eschew toward “minimum intrusion into the affairs of state prison administration; state prison officials enjoy wide discretion in the operation of state penal institutions.” In a case challenging a state prison transfer policy, the Supreme Court warned against federal courts making decisions regarding “the day-to-day functioning of state prisons and involve[ing] the judiciary in issues and discretionary decisions that are not the business of federal judges,” noting that “[t]he federal courts do not sit to supervise state prisons, the administration of which is acute interest to the States.”
As this Court held in Lavergne v. Cain, “[w]hen weighing any form of injunctive relief, federal courts must be mindful not to jump at the chance to take prison
356 Id. at 2. 357 Id. at 3, citing Hood v. Vessel, 2013 WL 12121562, at *1 (M.D. La. May 14, 2013) (citing 18 U.S.C. § 3626(a)).
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administration into their own hands and out of the hands of the people entrusted with such tasks by the state.” Further, “[c]ourts have recognized that unwarranted intrusions by the courts can be disruptive to the prison administrators, who are often in the best position to operate the prison in a fashion that is best for the security of prisoners and outsiders alike.”358
The Court then looked to the Fifth Circuit's recent decisions in Valentine v. Collier and Marlowe v. LeBlanc, which presented challenges to prison conditions in the context of the COVID19 pandemic, to guide its analysis.359 In the context of the request for injunctive relief, the Court explained that the question is whether Plaintiffs are substantially likely to succeed on their claims that the Defendants' plan to isolate COVID-19 positive inmates at Camp J violates the Plaintiffs' Eighth Amendment and Fourteenth Amendment rights. Finding that the Defendants’ transfer plan was carefully developed to limit the impending harm of the spread of coronavirus throughout all prisons and jails in the state of Louisiana, it belied a claim of deliberate indifference. Similarly, this Court found that an injunction would raise serious potential risk of harm to the Defendants because “it would hamstring the DOC “from responding to the COVID-19 threat without a permission slip from the district court.” For the same reasoning and analysis articulated by the Fifth Circuit in Valentine, supra., the Court found that the second factor weighs in Defendants' favor. Plaintiffs have failed to demonstrate that the requested injunction will not cause irreparable harm to Defendants and potentially to inmates and pre-trial detainees throughout the State of Louisiana.
Thus, Plaintiffs’ Request for Temporary Restraining Order was denied. M. If the Court orders injunctive relief, significant security should be required. FRCP 65(c) provides “[t]he court may issue a preliminary injunction or a temporary
358 Id. at 3-4. 359 Valentine v. Collier, 2020 WL 1934431, 956 F.3d 797 (5th Cir. Apr. 22, 2020); Marlowe v. LeBlanc, ––– Fed. Appx. ––––, 2020 WL 2043425 (5th Cir. Apr. 27, 2020). Marlowe involved an inmate's complaints about the prison's response to the COVID pandemic.
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restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” The Sheriff has provided ample reasoning that an injunction should be denied. However, if the Court finds otherwise, EBRP may have significant costs to bear, which will ultimately be borne by the East Baton Rouge Parish taxpayers. While Plaintiffs cite to two cases advising this court that the courts in this circuit do not require security in cases brought by indigent or incarcerated people, neither of the cases are from courts of the Fifth Circuit and are thus, not authoritative on the issue. Rather, the Fifth Circuit has determined that the security requirement serves two functions: (1) it assures the enjoined party that it may readily collect damages from the funds posted or the surety provided in the event that it was wrongfully enjoined, without further litigation and without regard to the possible insolvency of the assured, and (2) it provides the plaintiff with notice of the maximum extent of its potential liability, since the amount of the bond “is the limit of the damages the defendant can obtain for a wrongful injunction, … provided the plaintiff was acting in good faith.”360 Courts have waived such a requirement when they have found that Plaintiff was financially responsible.361 The Sheriff has provided above significant grounds against being enjoined, and the Plaintiffs have not made any showing that they are financially responsible, thus, a security bond is necessary in this proceeding. Sheriff defendants urge this court to order the Plaintiffs to provide security within its discretion.
Sheriff defendants have incurred significant costs and attorneys fees to date, related to the subject proceedings pending the temporary restraining order and should thus be entitled to damages should they be wrongfully enjoined. Nonetheless, should the Plaintiffs request for a TRO be granted, additional security would account for a wide range or potential costs such as: hiring of
360 Continuum Co, Inc. v. Incepts, Inc., 873 F.2d 801, at 803 (U.S. 5th Cir. 1989). 361 Id.
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additional resources for cleaning all areas of the EBRP, having additional deputies within in the jail to enforce social distancing measures (thereby reducing the law enforcement presence in the community when deputies are already in strain due to the national climate on racism), purchase of additional PPE and sanitizing supplies (which is already exorbitant on primary or secondary markets), locating and paying alternate locations to house inmates including transportation and meal service to such facilities (if the court orders a reduction in inmate numbers in the EBRP, as the EBRSO cannot lawfully release inmates from custody), and defending potential lawsuits based on excessive force, prison conditions, or other claims and on sanctions for violating victim rights, caused by compliance with this Courts order. Such measures could easily cost a minimum of $500,000 to the EBRSO.
Granting injunctive relief without security would be analogous to the release of an inmate without posting bond, the likes of which will never be seen. For all these reasons, if the Court grants injunctive relief despite the significant arguments, authorities, exhibits, and explanation of the Sheriff and EBRSO personnel, the Court should require Plaintiffs to post a security interest of at least $500,000. V. CONCLUSION
For all of the foregoing reasons, Sheriff Defendants respectfully request that this Court deny Plaintiffs’ Motion for Temporary Restraining Order and dismiss the suit as premature because Plaintiffs failed to exhaust administrative remedies prior to filing suit.
Respectfully submitted: ERLINGSON BANKS, PLLC s/Catherine S. St. Pierre MARY G. ERLINGSON (#19562) CATHERINE S. ST. PIERRE (#18419) RACHEL M. ABADIE (#34413) One American Place
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301 Main Street, Suite 2110 Baton Rouge, Louisiana 70801 Telephone: (225) 218-4446 Facsimile: (225) 246-2876 cstpierre@erlingsonbanks.com Counsel for Sheriff Defendants
CERTIFICATE OF SERVICE I hereby certify that on the 5th day of June, 2020, a true and correct copy of the foregoing pleading was filed electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent by operation of the court’s electronic filing system and/or via U.S. Postal Service to counsel of record. Baton Rouge, Louisiana, this 5th day of June, 2020.
s/Catherine S. St Pierre Catherine S. St. Pierre
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 Case 3:20-cv-00278-BAJ-SDJ Document 92-1 07/28/20 Page 1 of 25

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

CLIFTON BELTON, JR., JERRY BRADLEY, CEDRICK FRANKLIN, CHRISTOPHER ROGERS, JOSEPH WILLIAMS, WILLIE SHEPHERD, DEVONTE STEWART, CEDRIC SPEARS, DEMOND HARRIS, and FORREST HARDY, individually and on behalf of all others similarly situated.

Plaintiffs, v.

Case No. 3:20-cv-000278-BAJ-SDJ

SHERIFF SID GAUTREAUX, in his official capacity as Sheriff of East Baton Rouge, LT. COL. DENNIS GRIMES, in his official capacity as Warden of East Baton Rouge Parish Prison; CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE,

Defendants.

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PURSUANT TO RULE 12(b)

MAY IT PLEASE THE COURT: Defendants SID J. GAUTREAUX, III, SHERIFF OF EAST BATON ROUGE PARISH in his official capacity and LT. COL. DENNIS GRIMES, in his official capacity as Warden of East Baton Rouge Parish Prison (hereinafter collectively referred to as “Sheriff Defendants”), file this memorandum in support of their Motion to Dismiss Pursuant to Rule 12(b) and move this Court to dismiss Plaintiffs’ claims pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure as set forth herein. I. PRELIMINARY STATEMENT
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First, Plaintiffs’ claims should be dismissed pursuant to Rule 12(b)(1) because this Court lacks subject matter jurisdiction. Plaintiffs lack standing to bring this suit because they have shown no injury in fact. Plaintiffs cannot show an injury in fact because the potential harms complained of are not sufficiently likely to occur. Plaintiffs have not demonstrated and cannot demonstrate a substantial likelihood that they will suffer immediate future harm due to the coronavirus at the East Baton Rouge Parish Prison (the “Jail”) due to the Sheriff Defendants’ actions. There currently is no mass outbreak of COVID-19 at the Jail. Defendants have shown that through the extensive measures they have taken in response to COVID-19 at the Jail, they have successfully at this time quelled the outbreak of COVID-19 at the Jail. Plaintiffs cannot show that they are likely to suffer immediate harm or death due to COVID-19 in the Jail. Specifically, Plaintiffs, Clifton Belton and Willie Shepherd are no longer incarcerated at the Jail. Therefore, they clearly cannot show immediate threat of injury in the future due to Sheriff Defendants’ actions and do not have standing to bring claims for injunctive or declaratory relief. All Plaintiffs’ claims should be dismissed with prejudice for lack of standing.
Plaintiffs’ claims for the release of medically vulnerable inmates via writ of habeas corpus and Section 1983 should be dismissed because Plaintiffs have not exhausted available remedies that are a prerequisite to a federal court granting inmates this relief.
It is Sheriff Defendants’ position that Plaintiffs’ claims based on Section 1983 should be dismissed for failure to exhaust administrative remedies as well. However, failure to exhaust administrative remedies is an affirmative defense requiring the submission of evidence. Therefore, Sheriff Defendants intend on filing a motion for summary judgment separate from this Motion to Dismiss asserting that Plaintiffs’ claims should be dismissed because they failed to exhaust the available administrative remedies prior to filing suit.
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Plaintiffs claims should be dismissed pursuant to Rule 12(b)(6) because they have failed to allege sufficient facts to state a claim under either the Eighth or Fourteenth Amendment. Plaintiffs do not allege sufficient facts to state a claim under the objective requirement of an Eighth Amendment claim. Plaintiffs have not alleged facts to show that they were subjected to “an objectively intolerable risk of harm.” Further, Plaintiffs have not alleged facts to satisfy the second element of an Eighth Amendment claim: subjective deliberate indifference. Plaintiffs have not alleged any facts to show that the Sheriff Defendants subjectively believed their measures undertaken to address COVID-19 in the Jail were inadequate.
Plaintiffs have not alleged sufficient facts to state a claim under the Fourteenth Amendment. Plaintiffs have not alleged facts to show a pervasive pattern of serious deficiencies in providing them basic human needs. Further, Plaintiffs have not alleged facts to show that the Sheriff Defendants acted with deliberate indifference or that the Sheriff Defendants’ response to COVID-19 in the Jail is not reasonably related to a legitimate government objective.
II. FACTUAL AND PROCEDURAL BACKGROUND 1. Procedural History
On May 4, 2020, Clifton Belton, Jr. (hereinafter referred to as “Belton”) filed a pro se Complaint1 regarding the conditions of the East Baton Rouge Parish Prison during the ongoing COVID-19 pandemic. On May 22, 2020, attorney David Utter filed an Ex Parte Motion to Enroll2 as counsel of record on behalf of Belton. On May 27, 2020, Plaintiffs filed an Amended Class Action Complaint3 along with attached exhibits regarding the condition of the EBRPP.
On May 27, 2020, Plaintiffs also filed an Emergency Motion for Temporary Restraining
1 Rec. Doc. 1 2 Rec. Doc. 3 3 Rec. Doc. 4
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Order4 against Sheriff Defendants and the City of Baton Rouge/Parish of East Baton Rouge asking the court to release the medically vulnerable subclass members. Plaintiffs contemporaneously filed a Motion for Expedited Discovery5 requesting an expedited expert’s inspection of the EBRPP in anticipation of a hearing on their request for preliminary injunction. The inspection of the Jail took place prior to the hearing on Plaintiffs’ Emergency Motion for Temporary Restraining Order. Plaintiffs also filed a Motion for Class Certification.6 Briefing has not been set for Plaintiffs’ Motion for Class Certification.
On June 10, 2020 this Court held a hearing on Plaintiff’s Emergency Motion for Temporary Restraining Order. On July 3, 2020 this Court issued a Ruling and Order on Plaintiffs’ Emergency Motion for Temporary Restraining Order.7 This Court denied Plaintiffs’ Emergency Motion for Temporary Restraining Order requesting the release of medically vulnerable inmates brought pursuant to 28 U.S.C. Section 2241 (Writ of Habeas Corpus). In its ruling this Court noted that “[g]enerally exhaustion of available state court remedies is a prerequisite for a federal court to consider a challenge to state detention.”8 This Court held that “Petitioners’ argument that no available remedies exist is belied by the facts in the record.”9 Further, this Court found Plaintiffs’ claims are an attack on the conditions of confinement rather than the fact or duration of confinement. Therefore, this Court found that it lacks jurisdiction to address Plaintiffs’ claims pursuant to Section 2241.10 Finally, this Court found Plaintiffs failed to demonstrate a substantial likelihood of success on the merits regarding the Constitutional violations asserted by Plaintiffs.
4 Rec. Doc. 5-2 5 Rec. Doc. 7 6 Rec. Doc. 8 7 Rec. Doc. 90 8 Rec. Doc. 4 page 7 citing Montano v. Texas, 867 F. 3d 540, 542 (5th Cir. 2017) 9 Rec. Doc. 4 page 8 10 Rec. Doc. 4 pages 8-10
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Specifically, this Court found that, “based on the measures taken by EBRPP, it is unlikely that Petitioners could establish a claim of subjective deliberate indifference.”11
Thereafter, pursuant to their Motion for Expedited Discovery, Plaintiffs’ proposed discovery consisting of nineteen (19) Requests for Production of Documents, fourteen (14) Interrogatories, and a Rule 30(b)(6) deposition covering fourteen (14) topics. Sheriff Defendants responded to these discovery requests except for one Request for Production of Documents and the Rule 30(b)(6) deposition on the basis that it was not reasonable or narrowly tailored.
2. Factual Background The named Plaintiffs are: Clifton Belton, representing the Class, the Pretrial Subclass, and the Medically Vulnerable Subclass; Jerry Bradley, representing the Class and Post-Conviction Subclass; Cedric Franklin, representing the Class, Post-Conviction Subclass, and Medically Vulnerable Subclass; Joseph Williams, representing the Class and the Pretrial Subclass; Willie Shepherd, representing the Class, the Pretrial Subclass, and the Medically Vulnerable Subclass; Devonte Stewart, representing the Class and the Pretrial Subclass; Cedric Spears, representing the Class and the Pretrial Subclass; Demond Harris, representing the Class and the Pretrial Subclass; and Forest Hardy, representing the Class and the Pretrial Subclass.12 Plaintiffs, Clifton Belton and Willie Shepherd are no longer incarcerated at the Jail.13 Plaintiffs seek injunctive relief from this Court based on claims that a mass outbreak of COVID-19 in the Jail is inevitable and the people detained in the Jail are at a significant risk of becoming infected and ultimately dying.14 Further, Plaintiffs seek the release of medically
11 Rec. Doc. 90 page 11 12 Rec. Doc. 4 ¶¶ 16-25 13 See Exhibit 1 Declaration of Major Fontenot 14 Rec. Doc. 4 ¶¶3, 9
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vulnerable inmates claiming that release from detention is the only viable method to protect them from potentially lethal harm.15
The evidence shows that no EBRPP inmates have died due to COVID-19.16 Further, due to the extensive steps taken by the Jail to address COVID-19, the number of cases have steadily and significantly declined since the peak in cases in mid-April.17 As of Monday, June 15, 2020, there were three inmates in the Jail, testing positive for COVID-19 and there were no suspected cases awaiting tests results.18 As of July 27, 2020, there was only one inmate in the custody of the Sheriff testing positive for COVID-19. The one inmate confirmed positive, was a female who was on the intake line, who was sent to Our Lady of the Lake Hospital and tested positive there. There have been no new cases diagnosed among the male inmates since May 12, 2020.19
Plaintiffs’ claims are based on alleged violations of the Fourteenth Amendment as to the Pretrial Subclass and violation of the Eighth Amendment as to the Post-Conviction Subclass.20 Plaintiffs claim that the Defendants established de facto policies and conditions of confinement that deny Plaintiffs adequate health care and protections from COVID-19.21 Plaintiffs contend that Defendants are “failing to adequately safeguard their health and safety in the midst of a potential outbreak of a contagious, infectious disease.”22 Plaintiffs contend that Defendants are failing to abate the serious risk that COVID-19 poses to Plaintiffs.23 This Court recognized in its
15 Rec. Doc. 4 ¶ 13 16 Rec. Doc. 47-31 Dec. of Phyllis McNeel 17 Rec. Doc. 47-31 Dec. of Phyllis McNeel 18 Rec. Doc. 80-3 Supplemental Affidavit of Major Catherine Fontenot 19 See Exhibit 1 Declaration of Major Fontenot 20 Rec. Doc. 4 ¶¶ 148-160 21 Rec. Doc. 4 ¶¶ 152, 158 22 Rec. Doc. 4 ¶ 151 23 Rec. Doc. 4 ¶ 157
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Ruling on Plaintiffs’ Emergency Motion for Temporary Restraining Order, the extensive measures the Defendants took to implement precautions to protect inmates from the COVID-19 pandemic.24
III. ARGUMENT A. Plaintiffs’ claims should be Dismissed for Lack of Subject-Matter Jurisdiction
Pursuant to Rule 12(b)(1). 1. Rule 12(b)(1) Standard A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges a federal court’s subject matter jurisdiction.25 A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.26 The Court may determine whether it possesses subject matter jurisdiction over an action by looking to “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”27 The burden of proof for a Rule 12(b)(1) motion to dismiss falls on the party asserting jurisdiction.28 Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does, in fact, exist.29 And “the court may consider disputed facts as well as undisputed facts in the record and make findings of fact related to the jurisdictional issue.”30 When a motion and evidence brings the court’s jurisdiction into question, “no presumptive truthfulness attaches to plaintiff’s allegations.”31 In considering a motion to dismiss for lack of subject matter jurisdiction, the Court
24 Red. Doc. 90 pages 4-6 and 11. 25 Fed. R. Civ. P. 12(b)(1) 26 Home Builders Ass’n of Miss. Inc. v. City of Madison, 143 F. 3d 1006, 1010 (5th Cir. 1998); Fed. R. Civ. P. 12(b)(1) 27 Barrett Computer Services, Inc. v. PDA, Inc., 884 F. 2d 214, 220 (5th Cir. 1989) 28 Ramming v. United States, 281 F. 3d 158, 161 (5th Cir. 2001) 29 Ramming, 281 F. 3d at 161 (citing Menchaca v. Chrysler Credit Corp., 613 F. 2d 507, 511 (5th Cir. 1980) 30 Ramirez v. Lone Star Pediatrics, P.A., 2014 WL 1281510 at *2 (N.D. Tex. Mar. 31, 2014 (citing Clark v. Tarrant Cty., 798 F. 2d 736, 741 (5th Cir. 1986). 31 Montez v. Dep’t of Navy, 392 F. 3d 147, 149 (5th Cir. 2004)
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may consider evidence outside of the pleadings without converting the motion to one for summary judgment.32
“Federal courts must resolve questions of jurisdiction before proceeding to the merits.”33 “It is incumbent on all federal courts to dismiss an action whenever it appears that subject matter jurisdiction is lacking. This is the first principle of federal jurisdiction.”34
2. Plaintiffs Lack Standing because they have shown no Imminent Injury Caused by Defendants.
Article III of the United States Constitution limits the jurisdiction of federal courts to actual “Cases” and “Controversies.”35 “‘No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases and controversies.’”36
Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure the federal courts did not exceed their authority as it has been traditionally understood.37 The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.38The doctrine of standing provides definition to these constitutional limits by “identify[ing] those disputes which are
32 Chelette v. Wilkie, 2020 WL 3819079 (W.D. La. 2020) citing Martin v. Napolitano, 2012 WL 1413579, at *3 (W.D. La. Apr. 2, 2012), report and recommendation adopted, 2012 WL 1413162 (W.D. La. Apr. 23, 2012) (citing Holt v. United States, 46 F. 3d 1000, 1003 (10th Cir. 1995)) 33 Ashford v. United States, 463 F. App.x 387, 391-92 (5th Cir. 2012) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.s. 83, 101, 118 S.C.t. 1003, 140 L. Ed. 2d 210 (1998); USPPS, Lt. v. Avery Dennison Corp., 647 F. 3d 274, 283 & n. 6 (5th Cir. 2011), and Jasper v. FEMA, 414 F. App’x 649, 651 (5th Cir. 2011) 34 Stockman v. FEC, 138 F. 3d 144, 151 (5th Cir. 1998) (quotation and citation omitted) 35 U.S. CONST., art. III Section 2 36 Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L. Ed. 2d 849 (1997) (citations omitted) 37 See Id at 820 38 Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547, 194 L. Ed. 2d 635d (2016), as revised (May 24, 2016)(citations omitted)
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appropriately resolved through the judicial process.”39 If a litigant lacks standing to assert a claim,
then the court lacks subject matter jurisdiction to entertain a request for such relief.40
Article III requires the plaintiff to demonstrate three things: (1) the plaintiff suffered an
injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial decision.41 Regarding “injury-in-fact, a speculative
injury is not sufficient; there must be more than an unfounded fear on the part of the applicant.42
The injury must be “actual or imminent”;i.e., certainly impending.”43 “Allegations of possible
future injury are not sufficient.”44 The plaintiff must affirmatively prove his standing to sue for
injunctive relief. The Supreme Court has stated that “[t]he party invoking federal jurisdiction bears
the burden of establishing these elements,” and the elements “are not merely pleading requirements
but rather an indispensable part of the plaintiff’s case.”45
The Fifth Circuit recently explained the standard with respect to plaintiffs seeking
prospective relief:
‘[T]he Supreme Court made clear [in City of Los Angeles v. Lyons, 461 U.S.95, 101-03, 103 S.Ct. 1660, 75 L. Ed. 2d 675 (1983),] that plaintiffs may lack standing to seek prospective relief even though they have standing to sue for damages.” Soc’y of Separationists, Inc. v. Herman, 959 F. 2d 1283, 1285 (5th Cir. 1992) (en banc). In Lyons, the Supreme Court explained: ‘[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief… if unaccompanied by any continuing, present, adverse effects.’ Lyons, 461 U.S. at 102, 103 S. Ct. 1660 (alteration and omission in original) (quoting O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974). (Although Lyons dealt with injunctive relief, this reasoning applies equally to
39 Crane v. Johnson 783 F. 3d 244, 251 (5th Cir. 2015) quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) 40 Whitmore v. Arkansas, 495 U.S. 149, 154-55 (1990) 41 Lujan v. Defenders of Wildlife, 504 U.S. 555,560-61, 112 S. Ct. 2130, 2136,119 L. Ed. 2d 351 (1992)(citation omitted) 42 Holland Am. Ins. Co v. Succession of Roy, 777 F. 2d 992, 997 (5th Cir. 1985) 43 Clapper v. Amnesty International. USA, 568 U.S.398, 408 (2013) 44 Id. (Internal quotations omitted) 45 Lujan, 504 U.S. at 561 (citations omitted)
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declaratory relief. See Herman, 959 F. 2d at 1285 (citations omitted).)
Along that line, our court has held: ‘To obtain equitable relief for past wrongs, a plaintiff must demonstrate either continuing harm or a real and immediate threat of repeated injury in the future.” Id. To have standing when ‘seeking injunctive or declaratory relief’, plaintiff must allege: facts ‘from which it appears there is a substantial likelihood that he will suffer injury in the future’, demonstrating a ‘substantial and continuing controversy between two adverse parties’; ‘facts from which the continuation of the dispute may be reasonably inferred’; and controversy is ‘real and immediate,… creat[ing] a definite, rather than speculative threat of future injury.’ Bauer, 341 F. 3d at 358 (citations omitted)46
Finally, the standing inquiry in a class action suit must be addressed to the named plaintiffs,
a requirement that cannot be circumvented by alleging that a class, as a whole, faces a threat of
imminent injury.47
In this case, Plaintiffs cannot show an injury in fact because the potential harms complained
of are not sufficiently likely to occur. Plaintiffs have not demonstrated and cannot demonstrate a
substantial likelihood that they will suffer immediate future harm due to the coronavirus at the East
Baton Rouge Parish Prison (the “Jail”) due to the Sheriff Defendants’ actions.
Plaintiffs seek a permanent injunction requiring Defendants to take certain action at the Jail
during the COVID-19 pandemic and to immediately release all Medically Vulnerable Plaintiffs or
transfer them to home confinement.48 Plaintiffs seek injunctive relief from this Court based on
claims that a mass outbreak of COVID-19 in the Jail is inevitable and the people detained in the
Jail are at a significant risk of becoming infected and ultimately dying.49 Further, Plaintiffs seek
46 Serafine v. Crump, 800 Fed. Appx. 234, 236, 237 (5th Cir. 2020) 47 See O’Shea v. Littleton, 414 U.S. 488, 494 (1974) (“Moreover, if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class.”) (citations omitted) 48 Rec. Doc. 4 page 62 Prayer for Relief 49 Rec. Doc. 4 ¶¶3, 9
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the release of medically vulnerable inmates claiming that release from detention is the only viable method to protect them from potentially lethal harm.50
Defendants have shown during the hearing on Plaintiffs’ Emergency Motion for Temporary Restraining Order that not only are they capable of providing medically vulnerable inmates and others at the Jail with the care necessary to protect them from death or serious illness from COVID-19, but that they have, in fact, done so. This Court recognized in its Ruling on Plaintiffs’ Emergency Motion for Temporary Restraining Order, the extensive measures the Defendants took to implement precautions to protect inmates from the COVID-19 pandemic.51 The evidence shows that no EBRPP inmates have died due to COVID-19.52 Further, due to the extensive steps taken by the Jail to address COVID-19, the number of cases have steadily and significantly declined since the peak in cases in mid-April.53 As of June 15, 2020, there were three inmates in the Jail testing positive for COVID-19 and there were no suspected cases awaiting tests results.54 As of July 27, 2020, there was only one inmate in the custody of the Sheriff testing positive for COVID-19. The one inmate confirmed positive, was a female who was on the intake line, who was sent to Our Lady of the Lake Hospital and tested positive there. There have been no new cases diagnosed among the male inmates since May 12, 2020.55
There currently is no mass outbreak of COVID-19 at the Jail. Defendants have shown that they have successfully at this time quelled the outbreak of COVID-19 at the Jail. Plaintiffs cannot show that they are likely to suffer immediate harm or death due to COVID-19 in the Jail.
50 Rec. Doc. 4 ¶ 13 51 Red. Doc. 90 pages 4-6 and 11. 52 Rec. Doc. 47-31 Dec. of Phyllis McNeel 53 Rec. Doc. 47-31 Dec. of Phyllis McNeel 54 Rec. Doc. 80-3 Supplemental Affidavit of Major Catherine Fontenot 55 See Exhibit 1 Declaration of Major Fontenot
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Plaintiffs, Clifton Belton and Willie Shepherd are no longer incarcerated at the Jail.56 Therefore, they cannot show immediate threat of injury in the future due to Sheriff Defendants’ actions and do not have standing to bring claims for injunctive or declaratory relief. Therefore, their claims should be dismissed. For the reasons mentioned above, the remaining named Plaintiffs have not demonstrated and cannot demonstrate a substantial likelihood that they will suffer immediate future harm due to the coronavirus at the Jail due to the conduct of the Sheriff Defendants. Plaintiffs’ unfounded fear of contracting COVID-19 either for the first time or by being re-infected at the Jail is not sufficient to show an injury in fact.
The facts in this case as to the risk of harm to Plaintiffs are in stark contrast to the facts in Marlowe v. LeBlanc, 2020 WL 1955303 (M.D. La. 4/23/2020). In Marlowe, this Court found that the plaintiffs had demonstrated standing because of the clear danger posed by COVID-19 in the Rayburn Correctional Center. This Court based its finding in Marlowe, on the fact that at the time the Motion for Temporary Restraining Order was filed, only two inmates had tested positive for COVID-19, and less than two weeks later, at the time of the hearing, that number had escalated to 25 infections among inmates and staff.57 Thus, at the time of the Court’s ruling in Marlowe, unlike in this case, the number of infections at the correctional facility had increased dramatically. In Marlowe, this Court found that Plaintiff had demonstrated the clear danger posed by COVID-19 in the Rayburn facility, and thus found that Plaintiff had adequately demonstrated standing. In this case, Plaintiffs have not demonstrated that there is a clear danger to them because of COVID-19 at the East Baton Rouge Parish Prison. In fact, in this case, rather than increasing dramatically, the number of COVID-19 cases at the Jail have decreased dramatically since Plaintiffs filed their suit.
56 Id. 57 Marlowe, *2
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Even assuming Plaintiffs could show a substantial likelihood that they will suffer immediate future harm due to the coronavirus at the East Baton Rouge Parish Prison, Plaintiff cannot show that Defendants’ responses to COVID-19 injured them. As stated above, this Court recognized in its Ruling on Plaintiffs’ Emergency Motion for Temporary Restraining Order the extensive measures the Defendants took to implement precautions to protect inmates from the COVID-19 pandemic.58 Plaintiffs must plead and prove that each alleged inadequacy is substantially likely to injury them.59 Further, Plaintiffs obviously cannot meet this standard for numerous measures that they seek to have this Court order that they are already taking as shown in the hearing on Plaintiffs’ Emergency Motion for Temporary Restraining Order and the documents attached to Defendants’ opposition. Plaintiffs cannot show that Defendants’ responses to COVID-19 is substantially likely to injure them.
Therefore, Plaintiffs lack standing to bring their claims and their claims should be dismissed for lack of subject matter jurisdiction.
3. Plaintiffs’ claims for Release of Medically Vulnerable Inmates should be Dismissed.
In their Amended Class Action Complaint, Plaintiffs seek release of Medically Vulnerable inmates via 28 U.S.C. Section 2241 (Writ of Habeas Corpus)60 and 42 U.S.C. Section 1983.61 Both of these claims should be dismissed.
First, this Court should dismiss Plaintiffs claims based on Section 2241. This Court denied Plaintiffs’ Motion for Temporary Restraining Order requesting the release of medically vulnerable inmates brought pursuant to 28 U.S.C. Section 2241 (Writ of Habeas Corpus). In its ruling this
58 Red. Doc. 90 pages 4-6 and 11. 59 See In re Gee, 941 F. 3d 153, 163-65 (5th Cir. 2009). 60 Rec. Doc. 4 Count III ¶¶ 161-164 61 Rec. Doc. 4 Count IV ¶¶ 165-168
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Court noted that “[g]enerally exhaustion of available state court remedies is a prerequisite for a federal court to consider a challenge to state detention.62 This Court held that “Petitioners’ argument that no available remedies exist is belied by the facts in the record.”63 Further, this Court found Plaintiffs’ claims are an attack on the conditions of confinement rather than the fact or duration of confinement. Therefore, this Court found that it lacks jurisdiction to address Plaintiffs’ claims pursuant to Section 2241.64 In light of this Court’s ruling on Plaintiffs’ Motion for Temporary Restraining Order, Plaintiffs’ claims for release of Medically Vulnerable pursuant to Section 2241/writ of habeas corpus should be dismissed with prejudice.
Plaintiffs’ claims to release medically vulnerable inmates pursuant to Section 1983 should be dismissed because Plaintiffs have not met the requirements for the “release” of prisoners been met under the Prison Litigation Reform Act (“PLRA”).
The PLRA establishes the procedure in 18 U.S.C. Section 3626 that must be followed in order for the federal court to release a state inmate.
(a) Requirements for relief. – (3) Prisoner release order.--(A) In any civil action with respect to prison conditions, no court shall enter a prisoner release order unless— (i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and (ii) the defendant has had a reasonable amount of time to comply with the previous court orders. (B) In any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court in accordance with section 2284 of title 28, if the requirements of subparagraph (E) have been met.
62 Rec. Doc. 4 page 7 citing Montano v. Texas, 867 F. 3d 540, 542 (5th Cir. 2017) 63 Rec. Doc. 4 page 8 64 Rec. Doc. 4 pages 8-10
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(C) A party seeking a prisoner release order in Federal court shall file with any request for such relief, a request for a three-judge court and materials sufficient to demonstrate that the requirements of subparagraph (A) have been met.
(D) If the requirements under subparagraph (A) have been met, a Federal judge before whom a civil action with respect to prison conditions is pending who believes that a prison release order should be considered may sua sponte request the convening of a three-judge court to determine whether a prisoner release order should be entered.
(E) The three-judge court shall enter a prisoner release order only if the court finds by clear and convincing evidence that—
(i) crowding is the primary cause of the violation of a Federal right; and
(ii) no other relief will remedy the violation of the Federal right.
(F) Any State or local official including a legislator or unit of government whose jurisdiction or function includes the appropriation of funds for the construction, operation, or maintenance of prison facilities, or the prosecution or custody of persons who may be released from, or not admitted to, a prison as a result of a prisoner release order shall have standing to oppose the imposition or continuation in effect of such relief and to seek termination of such relief, and shall have the right to intervene in any proceeding relating to such relief.65
The United States Supreme Court declared, “[t]ogether, these requirements ensure that the ‘last resort remedy’ of a population limit is not imposed ‘as a first step.’”66
In Livas v. Myers, 2020 WL 1939583 (W.D. La. 4/22/2020), the Court granted defendants
Rule 12(b)(1) motion to dismiss based on lack of subject matter jurisdiction. Similar to this case,
plaintiffs in Livas sought to bring a class action requesting the release of medically vulnerable
inmates due to COVID-19. The court dismissed plaintiffs’ Section 2241 habeas corpus claims and
stated: “to the extent that Petitioners would move to amend their Complaint to assert a claim for
injunctive or other prospective relief under the PLRA, such amendment would be futile where
65 18 U.S.C. Section 3626 66 Brown v. Plata, 563 U.S. 493, 514, 131 S. Ct. 1910, 1930, 179 L. Ed. 2d 969 (2011) (citation omitted)
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there are no factual allegations that Petitioners have exhausted their administrative remedies, nor have other requirements for the “release” of prisoners been met. See 18 U.S.C. Section 3626(a)(2)(3).”67
In this case, there are no factual allegations and Plaintiffs cannot show that the statutory mandates of the PLRA have been met. Therefore, Plaintiffs’ claims to release medically vulnerable inmates pursuant to Section 1983 should be dismissed with prejudice.
B. Plaintiffs’ claims should be Dismissed for Failure to State a Claim Pursuant to Rule 12(b)(6)
1. Rule 12(b)(6) Standard A defendant is entitled to dismissal under Rule 12(b)(6) when plaintiff fails to state a claim
upon which relief may be granted. “Dismissal under Rule 12(b)(6) is appropriate when the plaintiff has failed to allege enough facts to state a claim to relief that is plausible on its face and fails to raise a right to relief above the speculative level.”68 “A legally sufficient complaint does not need to contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action.”69 In order to avoid dismissal, for failure to state a claim, a plaintiff must plead specific facts, not mere conclusory allegations.70 A complaint is also insufficient if it merely “tenders ‘naked assertions[s]’ devoid of ‘further factual enhancement.’”71 In order to satisfy the plausibility standard, the plaintiff must show “more than a sheer possibility that the defendant has acted unlawfully.”72 “Furthermore, while the court must
67 Livas at *9 68 National Bi-Weekly Admin. Inc. v. Belo Corp., 512 F. 3d 137, 140 (5th Cir. 2007) 69 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) 70 Kaiser Aluminum & Chemical Sales v. Avondale Shipyards, 667 F. 2d 1045 (5th Cir. 1982) 71 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citations omitted) 72 Iqbal, 556 U.S. at 678
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accept well-pleaded facts as true, it will not ‘strain to find inferences favorable to the plaintiff.’”73 On a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.”74
2. Injunction Standard Plaintiffs seek declaratory and injunctive relief based on alleged violations of the
Fourteenth and Eighth Amendments.75 Plaintiffs seek a temporary restraining order, preliminary injunction and permanent injunction requiring Defendants to immediately release all Medically Vulnerable Plaintiffs and Subclass Members or transfer them to home confinement. Plaintiffs also seek an order (injunction) requiring Defendants to take certain steps during the COVID-19 pandemic.76
“The party seeking a permanent injunction must…establish (1) success on the merits; (2) that a failure to grant the injunction will result in irreparable injury; (3) that said injury outweighs any damage that the injunction will cause the opposing party; and (4) that the injunction will not disserve the public interest.”77 “Failure to establish any of these elements results in the denial of the motion for injunctive relief.”78The legal standard for issuing a permanent injunction is “essentially the same” as the standard for issuing a preliminary injunction.79 Instead of proving a substantial likelihood of success on the merits though, the plaintiff must actually prevail on the merits.80
73 Taha V. William Marsh Rice Univ., 2012 WL 1576099 at ⃰ 2 (S.D. Tex. 2012)(quoting Southland Sec. Corp. v. Inspire Ins. Solutions, 365 F. 3d 353, 361 (5th Cir. 2004)) 74 Twombly, 550 U.S. 556 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986)) 75 Rec. Doc. 4 Count II and Count IV 76 Rec. Doc. 4 pages 62-64 77 VRC LLC v. City of Dallas, 460 F. 3d 607, 611 (5th Cir. 2006) (citing Dresser-Rand, Co. v. Virtual Automation, Inc., 361 F. 3d 831, 847-48 (5th Cir. 2004). 78 Guy Carpenter & Co. v. Provenzale, 334 F. 3d 459, 464 (5th Cir. 2003) 79 Dresser-Rand Co. v. Virtual Automation Inc., 361 F. 3d 831, 847 (5th Cir. 2004) 80 Id.
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It is the Sheriff Defendants’ position that Plaintiffs will not be able to establish any of the four requirements for a permanent injunction. Plaintiffs’ claims should be dismissed on the pleadings because Plaintiffs have not alleged facts to show success on the merits. Plaintiffs have failed to allege facts to state a claim for relief under the Eighth or Fourteenth Amendment. Therefore, Plaintiffs’ claims for injunctive relief and declaratory judgment should be dismissed.
3. Plaintiffs fail to state an Eighth Amendment or Fourteenth Amendment Claim against the Defendants. Plaintiffs assert Section 1983 claims for declaratory and injunctive relief for violation of
the Fourteenth Amendment as to the Pretrial Subclass and violation of the Eighth Amendment as to the Post-Conviction Subclass.81 In support of these claims, Plaintiffs claim that the Defendants established de facto policies and conditions of confinement that deny Plaintiffs adequate health care and protections from COVID-19.82 Plaintiffs contend that Defendants are “failing to adequately safeguard their health and safety in the midst of a potential outbreak of a contagious, infectious disease.”83 Plaintiffs contend that Defendants are failing to abate the serious risk that COVID-19 poses to Plaintiffs.84
The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.”85 Prison officials who act reasonably cannot be found liable under the Eighth Amendment.86An Eighth Amendment conditions of confinement claim has two components, one objective and one subjective.87 To satisfy the objective requirement, the plaintiff must show “an objectively
81 Rec. Doc.. 4 ¶¶ 148-160 82 Rec. Doc. 4 ¶¶ 152, 158 83 Rec. Doc. 4 ¶ 151 84 Rec. Doc. 4 ¶ 157 85 U.S. Const. Amend. VIII 86 Farmer v. Brennan, 511 U.S. 825, 845 (1994) 87 Id. at 845
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intolerable risk of harm.”88 To satisfy the subjective requirement, the plaintiff must show that the defendant (1) was aware of facts from which the inference could be drawn that a substantial risk of serious harm exists; (2) subjectively drew the inference that risk existed; and (3) disregarded the risk.89 The incidence of diseases or infections, standing alone, do not imply unconstitutional confinement conditions, since any densely populated residence may be subject to outbreaks.90Instead, the plaintiff must show a denial of “basic human needs” and deliberate indifference.91 “Deliberate indifference is an extremely high standard to meet.”92
To successfully set forth a condition of confinement claim, under the Fourteenth Amendment, the plaintiff must show “(1) a rule or restriction, or identifiable intended condition or practice, or a jail official’s acts or omissions that were sufficiently extended or pervasive which was (2) not reasonably related to a legitimate government objective, and which (3) caused the violation of detainee’s constitutional rights.93 A detainee challenging jail conditions must demonstrate more than an incident; he must demonstrate a pervasive pattern of serious deficiencies in providing for his basic human needs; any lesser showing cannot prove punishment in violation of the detainee’s Due Process rights.94 “[I]solated examples of illness, injury or even death, standing alone, cannot prove that conditions of confinement are constitutionally inadequate.”
The effective management of a detention facility is a valid objective that may justify imposition of conditions and restrictions on pretrial detention.95 The Supreme Court in Bell
88 Valentine v. Collier, 956 F. 3d 797, 801 (5th Cir. 2020), denying motion to vacate stay2020 WL 2497541 (May 14, 2020). 89 Id. 90 Id. (citing Shepherd v. Dallas Cty., 591 F. 3d 445, 454 (5th Cir. 2009) (A Fourteenth Amendment conditions of confinement case) 91 Id. 92 Id. (quoting Cadena v. El Paso Cty., 946 F. 3d 717, 728 (5th Cir. 2020). 93 Duvall v. Dall. Cnty., Tex., 631 F. 3d 203, 207 (5th Cir. 2011) 94 Shepherd v. Dallas County, 591 F. 3d 445, 452-55 (5th Cir. 2009) 95 Estate of Henson v. Wichita County, Tex., 795 F. 3d 456 (5th Cir. 2015)
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explained that in determining “whether restrictions or conditions are reasonably related to the
Government’s interest in…operating the institution in a manageable fashion,” courts must
remember that “’[s]uch considerations are peculiarly within the province and professional expertise of corrections officials.’”96 Courts must not become “enmeshed in the minutiae of prison
operations,” which will only distract from the question presented: “does the practice or condition violate the Constitution?”97
The deliberate indifference standard applies to both Plaintiffs’ Eighth Amendment and
Fourteenth Amendment claims. Under the Eighth Amendment, Plaintiffs must prove an objectively intolerable risk of harm and subjective deliberate indifference.98 Under the Fourteenth
Amendment, Plaintiffs must demonstrate a pervasive pattern of serious deficiencies in providing
for their basic human needs and that the jail official’s acts or omissions were not reasonably related to a legitimate government objective.99 As the Fifth Circuit has recognized, “the reasonable-
relationship test employed in conditions cases is functionally equivalent to the deliberate indifference standard employed in episodic cases.”100
Further, this case is equivalent to a failure to protect or failure to provide basic needs case. The Fifth Circuit in Polk v. Det. Ctr. Of Natchitoches Parish, 32 F. App’x 128 (5th Cir. 2002) (per
curiam), stated:
‘The State owes the same duty under the Due Process Clause and the Eighth Amendment to provide both pretrial detainees and convicted inmates with basic human needs, including medical care and protection from harm during their confinement.’ Hare v. City of Corinth, 74 F. 3d 633, 650 (5th Cir. 1996)(en banc). A prison official is not liable under Section 1983 unless the prisoner shows that the
96 Bell at 540 97 Id at 544 98 Valentine v. Collier, 956 F. 3d 797, 801 (5th Cir. 2020), denying motion to vacate stay2020 WL 2497541 (May 14, 2020) 99 Duvall v. Dall. Cnty., Tex., 631 F. 3d 203, 207 (5th Cir. 2011) 100 Duvall v. Dallas Cty., Tex., 631 F. 3d 203, 207 (citing Scott v. Moore, 114 F. 3d 51, 54 (5th Cir. 1997) (en banc)
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official exhibited deliberate indifference to his conditions of confinement or serious medical needs. Farmer v. Brennan, 511 U.S. 825, 837-43, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). The prisoner must show that the official: (1) was aware of facts from which an inference of an excessive risk to the prisoner’s health or safety could be drawn; (2) drew an inference that such potential for harm existed; and (3) disregarded that risk by failing to take reasonable measures to abate it. Id. at 837, 847, 114 S. Ct. 1970. A pretrial detainee’s claim based upon a jail official’s “episodic act or omission” is also evaluated under the standard of subjective deliberate indifference enunciated in Farmer. Hare 74 F. 3d at 648101 Courts around the country have applied the deliberate indifference standard to evaluate facilities’ responses to COVID-19. See Swain v. Junior, 958 F.3d 1081, 1088 (11th Cir. 2020) (applying deliberate indifference standard for Eighth and Fourteenth Amendment claims and staying district court's issuance of a preliminary injunction against jail facility); Archilla v. Witte, No. 420-CV-00596-RDP-JHE, 2020 WL 2513648, at *13 n.20 (N.D. Ala. May 15, 2020) (noting, in action by ICE detainees, that “the standard for providing adequate medical care to pretrial detainees under the Due Process Clause is the same standard required for convicted persons under the Eighth Amendment”); Sacal-Micha v. Longoria, No. 1:20-CV-37, 2020 WL 1518861, at *4 (S.D. Tex. Mar. 27, 2020) (“A detainee can establish a constitutional violation based on inadequate conditions of his confinement. But to do so, he must demonstrate that the officials acted with deliberate indifference to his medical needs or his safety.” (citing, inter alia, Baughman v. Garcia, 254 F. Supp. 3d 848, 868–69 (S.D. Tex. 2017)), aff'd sub nom. Baughman v. Seale, 761 F. App'x 371 (5th Cir. 2019) (applying the deliberate indifference standard to Fourteenth and Eighth Amendment claim for denial of medical care)); Mohammed S. v. Tritten, No. 20-CV-793 (NEB/ECW), 2020 WL 2750836, at *22 (D. Minn. Apr. 28, 2020) (stating, in denying motion for TRO brought by ICE detainee in response to COVID-19, that “the deliberate indifference test, not
101 Polk at p. 128
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the freedom from punishment test, applies to a claim challenging the adequacy of precautionary measures to reduce the risk of infection: ‘The governmental duty to protect at issue in this case is not based on a pretrial detainee's right to be free from punishment but is grounded in principles of safety and general well-being.’ (citing Butler v. Fletcher, 465 F. 3d 340, 344 (8th Cir. 2006))), report and recommendation adopted, No. 20-cv-783, 2020 WL 275019 (D. Minn. May 27, 2020).
Judge deGravelles recently noted that “Swain, Archilla, Mohammad, Sacal-Micha, and Polk are strong authority that the Court should apply the deliberate indifference standard for claims brought in response to the threat of COVID-19, even for those brought under the Fourteenth Amendment.102 Ultimately, Judge deGravelles found that “the Court need not resolve the question because regardless of which standard to apply-the Eighth Amendment’s deliberate indifference standard or the Fourteenth Amendment’s ‘reasonably related to a legitimate interest’ standard-the Court finds that the Plaintiffs have failed to meet the burden of clearly demonstrating a substantial likelihood of success on the merits.”103 The court found that the defendant, Louisiana Office of Juvenile Justice’ response to COVID-19 in in that case was rationally related to the legitimate interests of rehabilitation and public health and safety.
The Fifth Circuit has given guidance on how to evaluate a claim that officers of correctional facilities violated Plaintiffs’ constitutional rights in their response to COVID-19. In Valentine, the Fifth Circuit examined whether the TDCJ was likely to prevail on the merits of the plaintiffs’ Eighth Amendment claim and determined that after accounting for the protective measures taken by TDCJ, plaintiffs had not shown a “substantial risk of serious harm” that amounts to cruel and unusual punishment.104 Further, the Fifth Circuit in Valentine pointed out that the
102 J.H. by and through N.H. v. Edwards, No. 20-cv-293, 2020 WL 3448087 *33(M.D. La. June 24, 2020) 103 Id 104 Id. at 801-02
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district court cited no evidence that TCDJ subjectively believed its measures were inadequate.105 This Court found in its ruling on Plaintiff’s Emergency Motion for Temporary Restraining
Order, that Plaintiffs failed to demonstrate a substantial likelihood of success on the merits as to the alleged constitutional violations under the Eighth and Fourteenth Amendments. This Court pointed out that “[r]ecently the Court of Appeals for the Fifth Circuit emphasized that ‘it is ‘difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of prisons.’”106 This Court held that it is unlikely that Plaintiffs could establish a claim of subjective deliberate indifference.107
Plaintiffs in this case have failed to allege sufficient facts to state a claim under either the Eighth or Fourteenth Amendment. Plaintiffs do not allege sufficient facts to state a claim under the objective requirement of an Eighth Amendment claim. Plaintiffs have not alleged facts to show that they were subjected to “an objectively intolerable risk of harm.” Plaintiffs make the conclusory allegation that they “suffer a substantial risk of serious harm to their health and safety due to the presence of, and spread of, COVID-19.”108 The Fifth Circuit has explained that “‘[t]he ‘incidence of diseases or infections, standing alone, do not ‘imply unconstitutional confinement conditions, since any densely populated residence may be subject to outbreaks.’ Shepherd v. Dallas Cty., 591 F. 3d 445, 454 (5th Cir. 2009). Instead, the plaintiff must show a denial of “basic human needs.’ Ibid”109 Plaintiffs have not alleged facts to show that Sheriff Defendants denied them basic human needs.
105 Id. 106 Rec. Doc. 90 pages 10 and 11 citing Valentine v. Collier, 956 F. 3d 797, 803 (5th Cir. 2020) (citation omitted.) 107 Rec. Doc. 90 pages 10 and 11 108 Rec. Doc. 4 ¶ 156 109 Valentne v. Collier, 956 F. 3d 797, 801 (5th Cir. 2020)
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Further, Plaintiffs have not alleged facts to satisfy the second element of an Eighth Amendment claim: subjective deliberate indifference. Plaintiffs have not alleged any facts to show that the Sheriff Defendants subjectively believed their measures undertaken to address COVID-19 in the Jail were inadequate. Plaintiffs merely make conclusory allegations that “Defendants act with deliberate indifference towards Plaintiffs by failing to adequately safeguard their health and safety in the midst of a potential outbreak of a contagious, infectious disease.”110 However, a legally sufficient complaint “must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action.”111 Plaintiffs have failed to allege sufficient facts to state an Eighth Amendment claim against the Sheriff Defendants.
Plaintiffs have not alleged sufficient facts to state a claim under the Fourteenth Amendment. Plaintiffs have not alleged facts to show a pervasive pattern of serious deficiencies in providing them basic human needs. Further, Plaintiffs have not alleged facts to show that the Sheriff Defendants acted with deliberate indifference or that the Sheriff Defendants’ response to COVID-19 in the Jail is not reasonably related to a legitimate government objective.
In support of their Fourteenth Amendment claim, Plaintiffs make the conclusory allegation that “Defendants established de facto policies denying Plaintiffs health care and adequate protections from COVID-19. The policies are not reasonably related to a legitimate governmental objective and are causing the violation of the Jail’s pretrial detainees’ constitutional rights.”112 Plaintiffs do not identify the de facto policies. Sheriff Defendants submit that the deliberate indifference standard applies to Plaintiffs’ Fourteenth Amendment claims. Plaintiffs have not alleged any facts to show that the Sheriff Defendants subjectively believed their measures
110 Rec. Doc. 4 ¶ 158 111 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) 112 Rec. Doc. 4 ¶152
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undertaken to address COVID-19 in the Jail were inadequate. In addition, even if the deliberate
indifference standard did not apply to Plaintiffs’ Fourteenth Amendment claims, Plaintiffs do not
allege facts to show that the steps taken by the Sheriff Defendants were not reasonably related to
the legitimate government interest of the health and safety of those in the Jail. Plaintiffs have failed
to allege sufficient facts to state a Fourteenth Amendment claim against the Sheriff Defendants.
IV. CONCLUSION
For all of the foregoing reasons, this Court should dismiss Plaintiffs’ claims against the
Sheriff Defendants with prejudice.
Respectfully submitted:
ERLINGSON BANKS, PLLC
s/Catherine S. St. Pierre MARY G. ERLINGSON (#19562) CATHERINE S. ST. PIERRE (#18419) RACHEL M. ABADIE (#34413) One American Place 301 Main Street, Suite 2110 Baton Rouge, Louisiana 70801 Telephone: (225) 218-4446 Facsimile: (225) 246-2876 cstpierre@erlingsonbanks.com Counsel for Sheriff Defendants
CERTIFICATE OF SERVICE
I hereby certify that on the 28th day of July, 2020, a true and correct copy of the foregoing
Memorandum in Support of Motion to Dismiss was filed electronically with the Clerk of Court
using the CM/ECF system. Notice of this filing will be sent by operation of the court’s electronic
filing system and/or via U.S. Postal Service to counsel of record. Baton Rouge, Louisiana, this 28th day of July, 2020.
s/Catherine S. St Pierre Catherine S. St. Pierre
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 Case 3:20-cv-00278-BAJ-SDJ Document 99 08/18/20 Page 1 of 27

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

CLIFTON BELTON, JR., JERRY BRADLEY, CEDRIC FRANKLIN, CHRISTOPHER ROGERS, JOSEPH WILLIAMS, WILLIE SHEPHERD, DEVONTE STEWART, CEDRIC SPEARS, DEMOND HARRIS, and FORREST HARDY, individually and on behalf of all others similarly situated,
Plaintiffs,

Case No. 3:20-cv-000278-BAJ-SDJ

v.

SHERIFF SID GAUTREAUX, in his official capacity as Sheriff of East Baton Rouge; LT. COL. DENNIS GRIMES, in his official capacity as Warden of the East Baton Rouge Parish Prison; CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE,

Defendants.

PLAINTIFFS’ RESPONSE IN OPPOSITION TO SHERIFF SID J. GAUTREAUX, III, AND LT. COLONEL DENNIS GRIMES’S MOTION TO DISMISS INTRODUCTION AND PROCEDURAL HISTORY
On May 27, 2020, ten individuals detained in the East Baton Rouge Parish Prison (“Jail”) filed this lawsuit on behalf of all people detained in the Jail.1 They did so in the middle of a global pandemic, alleging that the Jail’s beleaguered medical care system is failing to protect detainees

1 R. Doc. 4. Plaintiffs reflect the full range of people subject to East Baton Rouge Parish’s criminal justice system— pretrial detainees, individuals convicted of a crime, and people accused of violating their conditions of probation or parole—and seek to represent a class of all people detained in the Jail. R. Doc. 8. Collectively, they are protected by the Eighth and Fourteenth Amendments to the United States Constitution. See, e.g., Hare v. City of Corinth, Miss., 74 F.3d 633, 649 (5th Cir. 1996) (With the exception of their conditions of confinement theory and not having to prove subjective deliberate indifference, the care due a pretrial detainee and person convicted of a crime are the same. Put another way, “there is no legally significant situation in which a failure to provide an incarcerated individual with medical care or protection from violence is punishment yet is not cruel and unusual.”).

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from COVID-19, the disease caused by a novel and highly infectious coronavirus.2 On July 3,
2020, after briefing and an evidentiary hearing, this Court denied Petitioners’ motion for a
temporary restraining order seeking the immediate release of medically vulnerable individuals under 28 U.S.C. § 2241.3
On July 18, 2020, pursuant to the parties’ agreement to conduct limited expedited
discovery, the Sheriff Defendants and Defendant City of Baton Rouge/East Baton Rouge Parish
(“City Defendant”) produced a limited sample of documents related to the Jail’s population,
response to the pandemic, and Plaintiffs’ medical conditions and treatment which, when it is
timely to consider, would substantiate Plaintiffs’ allegations. On July 28, 2020, the Sheriff
Defendants filed a Motion to Dismiss all of Plaintiffs’ claims pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure,4 which Plaintiffs hereby oppose. This Court has
jurisdiction over Plaintiffs’ 28 U.S.C. § 2241 and 42 U.S.C. § 1983 claims, Plaintiffs have
standing to bring this lawsuit, and their First Amended Class Action Complaint (“Complaint”)
clearly states claims under the Eighth and Fourteenth amendments and 42 U.S.C. § 1983. STATEMENT OF FACTS5
Since Plaintiffs filed their Complaint, the number of people diagnosed with COVID-19 in
East Baton Rouge Parish has more than quadrupled, from 3,319 on May 21, 2020 to 12,875 on August 17th.6 As to be expected with such a contagious virus, cases are again reappearing in the
2 R. Doc. 4 3 R. Doc. 90. 4 R. Doc. 92. 5 As described below, the Court may only look to the well-pled allegations of the complaint to evaluate the sufficiency of Plaintiffs’ claims for relief under Rule 12(b)(6), although it may consider additional evidence, including expert and witness testimony, when evaluating Plaintiffs’ standing and the Court’s subject matter jurisdiction under Rule 12(b)(1). The new facts set forth here go to Plaintiffs standing, while Plaintiffs’ well-pled allegations in their Complaint support the inference of liability under Plaintiffs’ substantive legal claims. 6 See La. Coronavirus Map & Case Count, N.Y. Times (Aug. 17, 2020, 4:37 P.M. E.T.), available at https://www.nytimes.com/interactive/2020/us/louisiana-coronavirus-cases.html#county; see also Exh. 1, Decl. of Dr. Susan Hassig (“Hassig Decl.”) ¶¶ 2-3 (noting that East Baton Rouge’s cases rose from 1,629 last month to
2

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Jail, contrary to the Sheriff Defendants’ assertion in their motion to dismiss that no new male
detainees have been diagnosed, and exposed individuals have been moved into general
population.7 The reality, of course, is that no one knows how many people in the Jail have the
virus because Defendants refuse to test everyone, including people who are not symptomatic but
who nevertheless can transmit the virus.8 Simply declaring, as the Sheriff Defendants do, that the
pandemic in the Jail is under control without testing ignores the fact that, if proper surveillance
testing were done, a great number of detained people may be shown to have the virus.9
Publicly available documents show that the Jail failed to provide sufficient health care to
people detained there for years prior to the pandemic.10 In 2015, the Sheriff himself told the Metro
Council that the “old part of the prison is really in deplorable condition. We have issues with
ventilation; with plumbing. Really it’s laid out in the old way, that poses a problem from a safety
standpoint for the safety of the inmates in the prison . . . .”11 A doctor who worked at the Jail for
years witnessed a “significant decline in care to patients” due to underfunding and understaffing.12
5,340 this month and that East Baton Rouge is among the worst parishes in one of the most impacted states). 7 Compare Exh. 2, Decl. of Travis Day (“Day Decl.”) ¶¶ 3-4 (men moved from isolation to general population after exposure, and men in general population are sick); Exh. 3, Decl. of Ransom J. Parker (“Parker Decl.”) ¶¶ 6-9, 15-16 (trustees were exposed to sick guard, and there are 6 sick men on COVID-19 lockdown); eExh. 4, Decl. of Demaris Carter (“Carter Decl.”) ¶ 3 (men in general population are sick); Exh. 5, Suppl. Decl. of Devonte Stewart (“Suppl. Stewart Decl.”) ¶ 13 (sick man was brought onto M01); Exh. 6, Suppl. Decl. of Derick Mancuso (“Suppl. Mancuso Decl.”) ¶ 8-11 (there are sick men on COVID-19 lockdown and Jail staff isn’t taking seriously cases on the line); Exh. 14, Decl. of Jimmie Knoten (“Knoten Decl.”) ¶ 12 (coughing man moved to general population) with R. Doc. 92 at 6 (“There have been no new cases diagnosed among male inmates since May 12, 2020.”). Accord Exh. 1, Hassig Decl. ¶ 5-6. 8 R. Doc. 84 at 109 (Dr. Fred Rottnek testifying that, without surveillance testing, there is simply no way to know how many people in the Jail have COVID-19); see also id. at 196 (responding to a question about surveillance testing of asymptomatic detainees, CorrectHealth’s health supervisor stated, “Why would we [test them]?”); accord Exh. 5, Suppl. Stewart Decl. ¶ 5; Exh. 4, Carter Decl. ¶ 3; Exh. 2, Day Decl. ¶¶ 3, 5, 7; Exh. 6, Suppl. Mancuso Decl. ¶¶ 6-7; Exh. 8, Decl. of Alvin Banks (“Banks Decl.”) ¶ 6, 12, 13, 16-18, 20-21; Exh. 7, Decl. of Casey Wade Harris (“C. Harris Decl.”) ¶¶ 34-35; Exh. 9, Decl. of Jocquenee Bernard (“Bernard Decl.”) ¶¶ 4, 6, 8; Exh. 10, Decl. of John Leagard (“Leagard Decl.”) ¶¶ 18-19; Exh. 13, Decl. of Calvin Kemp (“Kemp Decl.”) ¶¶ 13, 19, 31. 9 See, e.g., Assoc. Press, At Louisiana prison, 192 out of 195 inmates test positive for COVID-19, Market Watch (May 5, 2020), available at https://www.marketwatch.com/story/louisana-prison-unit-has-192-of-195-inmates-testpositive-for-covid-19-2020-05-05. 10 R. Doc. 4 ¶¶ 71-73. 11 Id. ¶ 71 (emphasis added). 12 Id.
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In 2015, Councilwoman Banks-Daniel described the health care situation in the Jail as
“catastrophic.”13 With a mortality rate above the national average, Defendants outsourced health
care to a private, for-profit provider in 2016.14 Since then, the death rate has risen even higher.15
Into this constitutionally deficient health care system comes the pandemic. Efforts to
reduce the Jail’s population, conceivably to permit social distancing, resulted in a population
decrease of less than 24%.16 Parts of the Jail’s physical structure are decrepit and the conditions
so “deplorable” that, by Warden Grimes’s own admission, if the federal government were to
inspect it, they would force its closure.17
Overlaid onto the Jail’s overcrowded and inadequate physical structure, Plaintiffs allege,
are policies and practices that fail to protect the detainees, including but not limited to:
• General population housing lines are made up of either [one] or two large dorm rooms filled with bunk beds or a row of cells that house approximately two to four people, along with a communal “day room” and a multi-person bathroom. There is no way to socially distance on these lines, even with population reductions spurred by the pandemic. The dorm-style housing lines can hold between 24 and approximately 100 people in each dorm room.18
• Detainees sleep in bunks that are no more than a few feet apart, or in some cases only a couple of inches apart. The aisles between the rows of beds are only wide enough for two people to pass at once. The individuals on these lines cannot be six feet apart while they are sleeping or moving around these dorm rooms.19
• Detainees spend most of their days in the day rooms on each line and cannot socially distance here either. During shift change and roll call, which happens twice a day and lasts for up to an hour each time, detained people are all required to be in the day room, often clumped around the door waiting for guards to call their names. The twice-a-day “pill call” is much the same: detained men and women are required to line up one closely behind the other in the day room to receive their prescribed medications—for conditions such as high blood pressure, diabetes, HIV, and mental health needs—from CorrectHealth’s nurses . . .
13 Id. 14 Id. ¶ 72. 15 Id. ¶ 73. 16 See, e.g., R. Doc. 84 at 121-22 (Warden Grimes testifying that the Jail’s population one year ago was 1347 and had been reduced to 1031 on June 10, 2020). 17 Id. at 144-145. 18 R. Doc. 4 ¶ 86. 19 Id. ¶ 87 (footnote omitted).
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without the opportunity to wash their hands first.20
• It is not possible to maintain adequate social distance in the bathrooms. Toilets, sinks, and showerheads are so close that the detainees can touch each other while using them. None of the toilets in the Jail have lids to contain splashes or particulate matter.21
• Detained individuals also share the limited number of telephones on the lines, and the telephones are not cleaned between uses. Without chemicals or cleaning wipes, the detainees do their best to wipe the heavily used phones on their uniforms or clean them with soap and water. But this is insufficient, and detainees are left to put a sock on the phone (and sometimes also on their hands) to attempt to protect themselves from transmission of the virus.22
• Jail staff do not provide detainees with sufficient information about the coronavirus, its symptoms, or how to protect themselves from the virus. On the Q9-10 lines, guards even turned off the television when news about the coronavirus came on. Jail staff keep information from detainees about coronavirus in the facility and in the community, and they do not instruct detainees on proper handwashing or mask-wearing techniques.23
• Individuals who have or are suspected of having COVID-19 are moved to a solitary confinement line in the A, B, or C wings, the same wings of the old Jail that were condemned and shut down in 2018. Upon information and belief, the Jail did not repair or deep clean these lines before they moved detainees onto them. The lines remain filthy and unsafe. In addition to the conditions that plague the rest of the Jail, these lines are covered in black mold; are home to large rats and spiders; have showers that leak water down the hallway; and have only questionably potable water in the cells. Individuals detained on solitary confinement lines are not permitted to leave their lines for any reason.24
• Individuals on the A, B, and C lines are confined in small, often poorly ventilated units with either one or four-person cells. Detainees on the B line often share their cells with one or two other people, and the beds in those cells are less than four feet apart, making it impossible to maintain a distance of at least six feet. The cells on each of these lines are separated by thin metal walls, but the front of the cells have bars that allow for the consistent circulation of ambient air. Men can reach out of the bars on the front of their cells and into the cells next to them; they pass hygiene supplies, books, and food up and down the line this way.25
• Detainees in solitary confinement are locked in their cells by the guards for approximately 23 hours per day. Some individuals get as little as 15 minutes out of their cell each day to shower and call their loved ones. The solitary confinement lines have no access to televisions or radios. Guards beat up, mace, or threaten men who seek extra time out of their cells to shower or make phone calls. After they’ve finished giving every detainee their turn out of their cells, the guards often leave the lines entirely—sometimes for hours at a time—and detainees have to beat on the door or kick their walls to get the guards’
20 Id. ¶ 88. 21 Id. ¶ 95. 22 Id. ¶ 96. 23 Id. ¶ 100. 24 Id. ¶ 109. 25 Id. ¶ 110.
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attention if they need it.26 • The same concerns regarding social distancing, sanitation, and protections against
transmission that exist on the quarantined general population lines are present in the solitary confinement lines as well.27 • As in the quarantined general population lines, all detainees on a solitary confinement line share the same shower and telephone. But these amenities are generally not cleaned between each use—even though many of the men on the line are sick—and may not even be cleaned every day. Detainees put a sock over the phone to protect themselves when they call their loved ones or their attorneys. The showers on most of these lines are so cold that they’re unusable, and men often have to bathe in the sinks in their cells.28 • In short, the solitary confinement lines that Defendants use to warehouse people who have contracted COVID-19 or are displaying symptoms commensurate with the virus are incredibly punitive and indistinguishable from the lines used for disciplinary segregation.29 • Social scientists uniformly document that solitary confinement, even for a period of days or weeks can have profound psychological and physical effects, such as a heightened state of anxiety and nervousness, headaches, insomnia, lethargy or chronic fatigue (including lack of energy and lack of initiative to accomplish tasks), nightmares, heart palpitations, and fear of impending nervous breakdowns. Other documented effects include obsessive ruminations, confused thought processes, an oversensitivity to stimuli, irrational anger, social withdrawal, hallucinations, violent fantasies, emotional flatness, mood swings, chronic depression, feelings of overall deterioration, as well as suicidal ideation. Individuals in prolonged solitary confinement frequently fear that they will lose control of their anger, and thereby be punished further.30 • Although persons sent to the A, B, and C solitary confinement lines have cell- and/or linemates, being locked up around the clock—particularly in the cramped conditions in the Jail’s solitary confinement lines—does not necessarily compensate for the feelings of isolation and disorientation that these individuals frequently experience.31 These policies and practices are further supported by declarations of the Plaintiffs and
numerous witnesses in this case, which demonstrate the substantial risk of harm they face,
sufficient to support standing. Plaintiffs incorporate by reference the summaries provided in their
Motion for Temporary Restraining Order, R. Doc. 21-1 at 7-23, and Reply in Support of their
Motion for Temporary Restraining Order, R. Doc. 67 at 3-12, see also R. Doc. 39 to 39-14. In
addition to those detailed factual statements, Plaintiffs submit an additional 11 declarations. The
26 Id. ¶ 111. 27 Id. ¶ 112. 28 Id. ¶ 113. 29 Id. ¶ 116. 30 Id. ¶ 117. 31 Id. ¶ 118.
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harrowing details in these declarations demonstrate that “[n]othing has really improved since the
attorneys did their inspection in this case in early June. If anything, things have gotten worse”
since the first wave of the pandemic.32 Though the Sheriff Defendants claim otherwise, these
declarations show that the Jail is not following the CDC’s guidelines.33 Detainees in the Jail
remain unable to socially distance on the housing lines,34 and the Jail is in fact bringing more
people back onto the lines, exacerbating this problem.35 The Jail still is not providing proper
supplies to clean the lines.36 Many guards and detainees are no longer wearing their masks,37
increasing the risk of viral transmission as a second wave picks up steam in the Jail.38 The guards
are not enforcing rules to protect detainees from the risk of contracting COVID-19.39
In addition, the medical staff continues to refuse to test detainees for coronavirus or conduct
32 Exh. 11, Decl. of Billy Pettice (“Pettice Decl.”) ¶ 26; see also Exh. 10, Leagard Decl. ¶¶ 19 (”Nothing has changed in the way the jail handles things or in our ability to get sick again. . . . How are they going to stop us from getting sick again? They didn’t stop it the first time.”), 23 (“Not really much has changed since the inspection in early June. They’re getting away with everything they’re doing that’s out of line.”); Exh. 5, Suppl. Stewart Decl. ¶ 6 (guards moved men off lockdown before the inspection to falsely make the situation look better); accord Exh. 1, Hassig Decl. ¶ 19 (“the danger COVID-19 poses to detainees in the East Baton Rouge Parish Prison is now more severe than it was in May”) Exh. 12, Decl. of Dr. Fred Rottnek (“Rottnek Decl.”) ¶ 37 (“it is my professional judgment that conditions are worsening in the facility”). 33 See, e.g., Exh. 1, Hassig Decl. ¶ 9. 34 See, e.g., Exh. 11, Pettice Decl. ¶¶ 27-28, 34-35; Exh. 6, Suppl. Mancuso Decl. ¶ 14; Exh. 10, Leagard Decl. ¶¶ 69; Exh. 9, Bernard Decl. ¶¶ 13-15; Exh. 7, C. Harris Decl. ¶¶ 27-28, 31, 37, 39, 42, 44-45; Exh. 3, Parker Decl. ¶ 10; Exh. 8, Banks Decl. ¶¶ 7, 9; Exh. 2, Day Decl. ¶¶ 8-9; Exh. 4, Carter Decl. ¶¶ 6-8; Exh. 5, Suppl. Stewart Decl. ¶¶ 5, 10; Exh. 13, Kemp Decl. ¶¶ 23, 25-27, 32; Exh. 14, Knoten Decl. ¶ 7; Exh. 1, Hassig Decl. ¶ 9. 35 See, e.g., Exh. 11, Pettice Decl. ¶ 27; Exh. 6, Suppl. Mancuso Decl. ¶ 5; Exh. 10, Leagard Decl. ¶ 5; Exh. 9, Bernard Decl. ¶ 13; Exh. 7, C. Harris Decl. ¶ 36; Exh. 13, Kemp Decl. ¶¶ 21, 24; cf. Exh. 8, Banks Decl. ¶ 12; Exh. 1, Hassig Decl. ¶ 9. 36 See, e.g., Exh. 11, Pettice Decl. ¶¶ 29-33; Exh. 6, Suppl. Mancuso Decl. ¶¶ 15-16; Exh. 10, Leagard Decl. ¶ 4; Exh. 9, Bernard Decl. ¶ 16; Exh. 7, C. Harris Decl. ¶ 46; Exh. 3, Parker Decl. ¶ 12; Exh. 8, Banks Decl. ¶¶ 7, 11, 22; Exh. 13, Kemp Decl. ¶¶ 17, 33-34; Exh. 14, Knoten Decl. ¶¶ 7, 10, 18. 37 See, e.g., Exh. 11, Pettice Decl. ¶¶ 36-37; Exh. 6, Suppl. Mancuso Decl. ¶¶ 13, 17; Exh. 10, Leagard Decl. ¶¶ 1112; Exh. 9, Bernard Decl. ¶¶ 3, 9-10; Exh. 3, Parker Decl. ¶¶ 5, 9; Exh. 8, Banks Decl. ¶ 8; Exh. 4, Carter Decl. ¶¶ 5-6; Exh. 5, Suppl. Stewart Decl. ¶ 12; Exh. 13, Kemp Decl. ¶¶ 29-30, 38-39; Exh. 14, Knoten Decl. ¶¶ 10-11, 16; Exh. 12, Rottnek Decl. ¶ 19. 38 See, e.g., Exh. 12, Rottnek Decl. ¶¶ 5-6; cf. Exh. 1, Hassig Decl. ¶¶ 7 (noting that bandanas—like those used in the Jail—“in fact may enhance the spread of coronavirus through smaller aerosolized droplets”), 10. 39 See, e.g., Exh. 11, Pettice Decl. ¶¶ 34, 37-38; Exh. 6, Suppl. Mancuso Dec. ¶¶ 14, 17; Exh. 7, C. Harris Decl. ¶¶ 37, 46; Exh. 9, Bernard Decl. ¶¶ 10, 14; Exh. 5, Suppl. Stewart Decl. ¶ 12; Exh. 10, Leagard Decl. ¶¶ 6-7; Exh. 13, Kemp Decl. ¶¶ 22, 24; Exh. 14, Knoten Decl. ¶ 17.
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any other surveillance checks for coronavirus symptoms.40 They continue to provide poor care for
coronavirus patients41 and even for individuals who present with more typical medical
conditions.42 The medical staff has further failed to adequately care for—or, in some cases, even
identify—serious after-effects in individuals who have recovered from COVID-19.43
Perhaps most concerning, however, is the fact that a second wave of the virus is beginning
in the Jail, and Jail staff continue to needlessly expose detainees to the virus and have failed to
implement any mechanisms to track the viral spread during this wave.44 It is as if they believe that
they have met their duty to care for the individuals trapped in their facility simply if those
individuals do not die, without regard to the injuries presented by exposure, infection, or long-term
impacts of this virus. But the declarations of Plaintiffs and witnesses in the facility call into
question whether the Jail has even prepared enough to prevent deaths during this wave of the virus,
and Plaintiffs’ expert further opines that prior infection with COVID-19 may not provide immunity
against future infections.45
Plaintiffs thus have standing and their allegations more than state a claim for relief. No
one denies the danger the novel coronavirus poses: since Plaintiffs filed their Complaint on May
40 See, e.g., Exh. 12, Rottnek Decl. ¶ 22; Exh. 6, Suppl. Mancuso Decl. ¶¶ 6, 7, 12; Exh. 10, Leagard Decl. ¶¶ 1819; Exh. 9, Bernard Decl. ¶¶ 4, 6, 8; Exh. 7, C. Harris Decl. ¶¶ 34-35; Exh. 3, Parker Decl. ¶ 8; Exh. 8, Banks Decl. ¶¶ 6, 12, 13, 16; Exh. 2, Day Decl. ¶¶ 3, 5, 7; Exh. 4, Carter Decl. ¶ 3; Exh. 5, Suppl. Stewart Decl. ¶ 5; Exh. 13, Kemp Decl. ¶¶ 13, 19, 31; Exh. 14, Knoten Decl. ¶ 7; Exh. 1, Hassig Decl. ¶ 10. 41 See, e.g., Exh. 14, Knoten Decl. ¶¶ 13, 19, 21; Exh. 9, Bernard Decl. ¶¶ 4, 8; Exh. 8, Banks Decl. ¶¶ 13, 16-18, 20-21; Exh. 13, Kemp Decl. ¶¶ 13, 15-16, 19; Exh. 6, Suppl. Mancuso Decl. ¶ 7; Exh. 10, Leagard Decl. ¶ 19, 21. 42 See, e.g., Exh. 8, Banks Decl. ¶¶ 28-31 (hepatitis C, high blood pressure, diabetes); Exh. 6, Suppl. Mancuso Decl. ¶ 21 (stroke-like symptoms); Exh. 14, Knoten Decl. ¶¶ 5-6, 19 (hepatitis C, asthma, liver and lung disease, PTSD, depression); Exh. 13, Kemp Decl. ¶¶ 7, 27, 29 (diabetes); Exh. 10, Leagard Decl. ¶¶ 20, 21 (tooth); Exh. 9, Bernard Decl. ¶ 18 (glasses). 43 See, e.g., Exh. 11, Pettice Decl. ¶¶ 39-41 (abdominal pain and potential kidney issues); Exh. 6, Suppl. Mancuso Decl. ¶ 22 (more frequent headaches, joint pain, raspy throat, fatigue); Exh. 1, Hassig Decl. ¶¶ 14, 16-19; Exh. 12, Rottnek Decl. ¶ 28 (noting the lack of adequate medical care in EBRPP); cf. Exh. 5, Suppl. Stewart Decl. ¶¶ 9, 11 (high blood pressure in young man with no other risk factors). 44 See, e.g., Exh. 12, Rottnek Decl. ¶ 22; Exh. 2, Day Decl. ¶¶ 3-4; Exh. 4, Carter Decl. ¶ 3; Exh. 5, Suppl. Stewart Decl. ¶ 13; Exh. 3, Parker Decl. ¶ 15; Exh. 6, Suppl. Mancuso Decl. ¶ 11; cf. Exh. 13, Kemp Decl. ¶ 19. 45 See, e.g., Exh. 1, Hassig Decl. ¶ 15.
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27, when the seven-day average of new infections in Louisiana was 465, the number has more than doubled to 933 on August 17, 2020.46 Although there may be a chasm between Plaintiffs’ factual allegations and the Sheriff Defendants’ claim that they have taken sufficient measures to protect people in the Jail from the COVID-19 pandemic, the allegations in Plaintiffs’ Complaint nonetheless state a viable claim for relief.
LAW AND ARGUMENT I. APPLICABLE LEGAL STANDARD
Under the 12(b)(6) standard, all well-pleaded facts must be viewed in the light most favorable to the plaintiff. Hale v. King, 642 F.3d 492, 498-99 (5th Cir. 2011) (en banc). Courts generally confine their analysis under Rule 12(b)(6) to the complaint and its proper attachments, which “must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Generally, then, even though a court must view all well-pleaded facts in the light most favorable to the nonmoving party, the factual allegations must be enough to raise a right to relief above the speculative level.” Cleveland v. Gautreaux, 198 F. Supp. 3d 717, 733 (M.D. La. 2016) (citations omitted). In the exceptional case where a complaint is found deficient under Rule 12(b)(6), the proper remedy is usually to allow the plaintiff to amend the complaint to cure any deficiencies, rather than dismissing the matter with prejudice. Pub. Health Equip. & Supply Co. v. Clarke Mosquito Control Equip., Inc., 410 F. App’x 738, 740 (5th Cir. 2010).
When assessing subject matter jurisdiction, courts are not confined to the four corners of
46 See La. Coronavirus Map & Case Count, N.Y. Times (Aug. 17, 2020, 4:37 P.M. E.T.), available at https://www.nytimes.com/interactive/2020/us/louisiana-coronavirus-cases.html#county.
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the complaint and “may consider affidavits and other evidence outside the pleadings in resolving a motion to dismiss under Rule 12(b)(1).” See Wije v. Texas Woman’s Univ., No. 4:14-CV-571ALM-CAN, 2015 WL 9872534, at *3 (E.D. Tex. Dec. 22, 2015). But a court evaluating a motion to dismiss pursuant to Rule 12(b)(1) must nonetheless continue to “take the well-pled factual allegations of the complaint as true and view them in the light most favorable to the plaintiff.” Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008); see also Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 237 (5th Cir. 2009). II. THIS COURT HAS JURISDICTION TO HEAR PLAINTIFFS’/PETITIONERS’
FEDERAL CONSTITUTIONAL CLAIMS A. The Court has jurisdiction over Petitioners’ well-pled claim under 28 U.S.C. §
2241 for the release of the medically vulnerable subclass The Sheriff Defendants argue that Petitioners’ § 2241 claims should be dismissed with prejudice based on the Court’s ruling on Petitioners’ Motion for Temporary Restraining Order (“TRO Motion”). R. Doc. 92-1 at 13-14. Defendants’ arguments primarily rely on two aspects of the Court’s opinion: its language regarding the exhaustion of state court remedies as well as the nature of—and jurisdiction over—Petitioners’ § 2241 claim. Id. Critically, different legal standards govern a motion for temporary restraining order and a motion to dismiss—the former demands that petitioners demonstrate a likelihood of success on the merits, while the latter examines the sufficiency of an alleged claim at the pleading stage. The Court’s decision on the TRO motion is thus not controlling on the motion to dismiss, contrary to Defendants’ suggestion. See, e.g., DGG Grp., LLC v. Lockhard Fine Foods, LLC, Case No. A20-cv-330-RP, 2020 WL 2475821, at *4 (W.D. Tex. May 13, 2020) (the legal standard for a preliminary injunction “is much more stringent than the standard used” for a motion to dismiss).
1. Petitioners’ § 2241 claim properly sounds in habeas because it challenges the fact, rather than the conditions, of confinement 10

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Citing this Court’s order denying the TRO motion, Defendants argue that dismissal is proper because this Court lacks jurisdiction over Petitioners’ § 2241 claim. R. Doc. 92-1 at 14. However, the TRO opinion—the only citation Defendants include in support of their argument— did not categorically conclude that the Court lacked jurisdiction over Petitioners’ claim. Rather, the Court stated it was “not persuaded” by Petitioners’ arguments with the limited factual record and case citations then before the Court for the motion for temporary restraining order. R. Doc. 90 at 8-10. The procedural posture of this case is now, of course, different. The nature of Petitioners’ allegations and the growing legal consensus in support of Petitioners’ claim demonstrate that dismissal would be improper at this preliminary pleading stage of litigation.
As Petitioners’ allegations make clear, they challenge the fact of their confinement under 28 U.S.C. § 2241.47 The necessity of release to protect the health and lives of the medically vulnerable is undisputed: even Warden Grimes agrees that a reduction in the Jail population is required to properly allow for social distancing. R. Doc. 84 at 161:19-163:2. Although Petitioners’ § 2241 challenge requires some discussion of the conditions inside the Jail, the remedy they seek (accelerated release from incarceration, rather than any changes in conditions at the Jail) as well as the nature of their challenge (that there are no sets of conditions inside the Jail sufficient to protect their constitutional rights) demonstrate that their claim squarely attacks the fact, rather than the conditions, of their confinement. Indeed, it is the fact that medically vulnerable individuals remain confined at all—not the specific conditions under which they are detained—that is the basis for the injury alleged in this case.
47 See, e.g., R. Doc. 4 ¶¶ 162-64 (alleging there is no available remedy absent release that could protect their constitutional rights), ¶¶ 125-34 (alleging release is necessary to ensure social distancing and to protect the medically vulnerable from unconstitutional violations threatened by their confinement). That Petitioners brought separate Eighth and Fourteenth Amendment claims in addition to their § 2241 claim does not impact jurisdiction.
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The Court’s TRO opinion referenced two cases cited by Petitioners in their motion that purportedly “declined to rule on whether claims attacking conditions of confinement properly sound in habeas.” R. Doc. 90 at 9-10 (citing Vasquez Barrera v. Wolf, --- F.3d ---, 2020 WL 1904497 (S.D. Tex. Apr. 17, 2020), and Poree v. Collins, 866 F.3d 235, 243 (5th Cir. 2017)). However, this specific question—whether a conditions-of-confinement claim that does not challenge the fact of confinement can nonetheless properly sound in habeas—misunderstands the habeas claim and arguments presented by Petitioners in this case.
For the reasons asserted above, Petitioners’ § 2241 claim attacks the fact of their confinement, not the conditions of their confinement, and therefore properly invokes habeas jurisdiction. As the Vazquez Barrera court found, the petitioners’ claim “falls squarely in the realm of habeas corpus” because they “challeng[e] the fact of their detention as unconstitutional and seek relief in the form of immediate release”; “[t]he mere fact that [their] constitutional challenge requires discussion of conditions . . . does not necessarily bar such a challenge in a habeas petition.” Vasquez Barrera, 2020 WL 1904497 at *4.
Many other courts have arrived at the same conclusion. The Sixth Circuit held that where, as here, petitioners “contend that the constitutional violations occurring at [the jail or prison] as a result of the pandemic can be remedied only by release,” the claim falls into “‘the heart of habeas corpus’” and “jurisdiction is proper under § 2241.” Wilson v. Williams, 961 F.3d 829, 838 (6th Cir. 2020). Numerous district courts are in accord, as noted in Petitioners’ TRO motion and reply briefs. See R. Doc. 21-1 at 52; R. Doc. 67 at 15-17.48 And after Petitioners filed their post-hearing
48 For the Court’s convenience, below is a sampling of these cases. See, e.g., Mohammed S. v. Tritten, No. 20-cv783, 2020 WL 2750109, at *2 (D. Minn. May 27, 2020) (finding that although “habeas proceedings are not available to challenge conditions of confinement” in the Eighth Circuit, habeas jurisdiction was appropriate “where the relief requested is release, and the argument is that confinement itself is unconstitutional”); Dada v. Witte, No. 1:20-cv-00458, 2020 WL 2614616, at *1 (W.D. La. May 22, 2020) (finding that a petition for release due to medical vulnerability to COVID-19 challenged the fact, rather than the conditions, of confinement and sounded in
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brief with the Court, additional district courts reached the same conclusion. See Torres v. Milusnic, --- F. Supp. 3d ---, 2020 WL 4197285, at *7 (C.D. Cal. July 14, 2020) (where “Petitioners contend there are no set of conditions of confinement that could be constitutional, the Court finds Petitioners challenge the fact of their confinement.”); Fernandez-Rodriguez v. LiconVitale, No. 20 Civ. 3315, 2020 WL 3618941 (S.D.N.Y. July 2, 2020) (finding that petitioners’ claim “challenged, at least in part, the ‘fact of confinement’ because they sought the remedy of release, which they alleged was “necessary” to “effectively practice social distancing”); McKissic v. Barr, No. 1:20-cv-526, 2020 WL 3496432, at *2 (W.D. Mich. June 29, 2020) (same).
In light of the nature of the allegations, the remedy sought, and the growing legal support before the Court, Petitioners have provided an adequate basis for this Court to invoke jurisdiction over the habeas claim at this early pleading stage. Dismissal would be improper.
2. The exhaustion doctrine permits Petitioners’ § 2241 claim to proceed Contrary to Defendants’ assertions, the record demonstrates that state court remedies were unavailable to Petitioners prior to filing this case. The Court’s opinion supports rather than undercuts the extraordinary circumstances imposed by the pandemic and the unavailability of state court remedies. To the extent that it relies on an informal release process as an available state court remedy, the opinion shows that Petitioners have already exhausted their claims. Petitioners incorporate by reference the legal and factual arguments set forth in their posthearing brief, including their argument that exhaustion of § 2241 remedies is not jurisdictional and that the remedies at issue were not available here. R. Doc. 81 at 5-8. Specifically, the state courts were unavailable because they were closed for much of the pandemic.49 R. Doc. 90 at 8;
habeas); Malam v. Adducci, --- F. Supp. 3d ---, 2020 WL 1672662, at *3 (E.D. Mich. Apr. 5, 2020) (“[W]here a petitioner claims no set of conditions would be sufficient to protect her constitutional rights, her claim should be construed as challenging the fact, not conditions, of her confinement and is therefore cognizable in habeas.”). 49 Even if state courts had been available, attempts at exhaustion would have been inappropriate and futile given the
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see also R. Doc. 81-2, Mitchell Decl. ¶¶ 7-8; Rose v. Lundy, 455 U.S. 509, 515-16 (1982);
Montano v. Texas, 867 F.3d 540, 543 (6th Cir. 2017).50 The informal collaboration between the
District Attorney, Public Defender, and 19th Judicial District Court Judges to release certain
individuals was similarly unavailable: it was neither public nor transparent, did not provide a
mechanism for people to apply or advocate for their own release, did not provide notice to anyone
who was considered or denied, and offered no way to file an appeal. R. Doc. 81-2, Mitchell Decl.
¶ 3. It would be unreasonable to demand that people avail themselves of a process they could
neither access nor participate in, or to describe such an opaque and exclusive process as
meaningfully available.51 In any event, the issue of exhaustion is, as Defendants admit,52 one in
which additional facts obtained through discovery should be considered, and Petitioners request
additional discovery if this Court is inclined to dismiss their habeas claim on this ground.
Finally, the overlay of the current pandemic certainly constitutes an extraordinary
circumstance warranting waiving the exhaustion doctrine.53 Federal courts agree that judge-made
relevant statutory limitations. An individual’s health is not a statutorily recognized factor in bond proceedings, see La. Code Crim. Proc. Ann. Art 316 (listing factors to be considered in determining bail amount), and medical releases are limited by statute to those with terminal illnesses or permanent incapacitations, R. Doc. 81-3, La. Dep’t of Pub. Safety & Corrs., No. HC-06, Med. Releases (2010) ¶¶ 4, 7. Further, procedures for setting bail and modifying conditions of release do not require any review of whether one is “in custody in violation of the Constitution,” as 28 U.S.C. § 2241 requires. 50 Cf. Exh. 3, Parker Decl. ¶ 18; Exh. 9, Bernard Decl. ¶ 20; Exh. 10, Leagard Decl. ¶ 3; Exh. 13, Kemp Decl. ¶ 2. 51 That Petitioner Clifton Belton was released to home confinement after the filing of this lawsuit does not contradict Petitioners’ allegations or the proffered record regarding the unavailability of state court remedies. See R. Doc. 90 at 8. Mr. Belton was incarcerated pretrial because he could not afford his bond and holds from other parishes demanded his continued incarceration. The success of his attorneys in negotiating with parishes beyond Baton Rouge and in connecting Mr. Belton to the YWCA Bail Fund have no bearing on the question of state court exhaustion, and it would be unreasonable to hold this zealous advocacy against him and the rest of the Petitioners. 52 Defendants assert that they will soon move for summary judgment to dismiss Plaintiffs’ § 1983 claims for failure to exhaust administrative remedies under the Prison Litigation Reform Act. R. Doc. 92-1 at 2. Plaintiffs note that this motion is premature, given that critical discovery on the question of exhaustion has not yet been completed, and Plaintiffs request the opportunity to complete that discovery before summary judgment briefing begins. See Dillon v. Rogers, 596 F.3d 260, 272-73 & nn.3-4 (5th Cir. 2010). 53 See, e.g., R. Doc. 21-1 at 2-22 (outlining the surge in cases nationally and locally, as well as the devastating experiences of people detained in the Jail); R. Doc. 4 ¶¶ 2, 78 (identifying that as of May 14, over 90 people had tested positive for COVID-19 in the Jail and at least one Sheriff’s deputy had died from the virus); R. Doc. 48-2 (outlining additional testimonies of people incarcerated in the Jail); R. Doc. 84 at 148:6-14 (Sheriff Grimes acknowledging that COVID-19 posed a serious threat to “everyone”); see also Exh. 1, Hassig Decl. ¶¶ 4-7, 19.
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exhaustion requirements for § 2241 claims should be waived in the current pandemic. See, e.g.,
Cameron v. Bouchard, --- F. Supp. 3d ---, 2020 WL 2569868, at *15 (E.D. Mich. May 21, 2020) (finding that the pandemic constituted a “quintessential example of when unusual and exceptional circumstances exist”), vacated on other grounds, --- F. App’x ---, 2020 WL 3867393 (6th Cir.
July 9, 2020); Baez v. Moniz, --- F. Supp. 3d ---, 2020 WL 2527865, at *2 n.5 (D. Mass. May 18, 2020) (declining to apply a “providential exhaustion requirement” to a § 2241 habeas claim in part due to the “extraordinary circumstances and unprecedented public health risks” arising from
the coronavirus pandemic). This Court should reach the same conclusion.
Notably, on the day Defendants filed their motion to dismiss, Louisiana reported a higher seven-day average of new coronavirus cases than at any point in the spring,54 and recent statistics
demonstrate that the state leads in COVID-19 cases per capita (outpacing even Florida, New York, and Arizona).55 The death toll is continuing to rise.56 And East Baton Rouge recently reported
the second highest number of COVID-19 cases in the state, surpassing Orleans Parish. Governor Edwards has himself acknowledged, “[t]here’s no doubt in my mind we have more of this virus in Louisiana today than we’ve had at any point thus far.”57 And rising infection rates are not limited to the community—declarants in the Jail testify that infection rates in the Jail are increasing too, from two in early August to six as of the beginning of the week.58 Individuals
54 See La. Coronavirus Map & Case Count, N.Y. Times (Aug. 17, 2020, 4:37 P.M. E.T.), available at https://www.nytimes.com/interactive/2020/us/louisiana-coronavirus-cases.html#county. 55 William Taylor Potter & Michael Stucka, Louisiana: The rare case of a state ravaged twice by COVID-19, USA Today (Aug. 2, 2020, 11:53 AM), available at https://www.usatoday.com/in-depth/news/2020/08/01/louisianasecond-covid-19-wave-worse-than-first-no-1-per-capita/5558862002/; cf. Exh. 1, Hassig Decl. ¶¶ 2-3. 56 Jeff Adelson & Sam Karlin, As a possible plateau in Louisiana coronavirus cases brings hope, fear of rising deaths looms, Nola.com (Aug. 1, 2020, 8:00 PM), available at https://www.nola.com/news/coronavirus/article_bfa0a4ba-d380-11ea-8dd0-8bf67ae4e59a.html. 57 Scottie Hunter, East Baton Rouge Parish surpasses Orleans Parish in COVID-19 cases, has second highest in state, WAFB 9 (July 28, 2020, 10:19 PM), available at https://www.wafb.com/2020/07/28/ east-baton-rougeparish-surpasses-orleans-parish-covid-cases-has-second-highest-state/. 58 See Exh. 3, Parker Decl. ¶ 16; Exh. 8, Banks Decl. ¶ 21; Exh. 14, Knoten Decl. ¶ 15.
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exposed to the sick men have been moved to general population without additional quarantining or any coronavirus testing; it is thus impossible to know how far this wave of the infection may already have spread in the Jail.59 The exceptional urgency created by this pandemic—as well as the unavailability of state court remedies—should excuse any requirement to exhaust in this case.
If the Court finds that none of the above exceptions apply—and if it finds that the informal collaborative process provided an available state court remedy, cf. R. Doc. 90 at 8—then the factual record before this Court indicates that Petitioners’ habeas claims have already been exhausted. As the Court noted, “Warden Grimes testified that all inmates at the jail have been considered for release” pursuant to this process,60 and the record confirms that Petitioners Belton, Franklin, and Shepherd were all “considered during this informal process but were not released.”61 There was nothing more that Petitioners could have done to fully exhaust: even if they had somehow learned of the denial of their release, they would have been unable to request reconsideration or file an appeal. Id. ¶ 3. Accordingly, to the extent this informal process constituted an available state court remedy, R. Doc. 90 at 8, the factual record confirms that Petitioners exhausted their § 2241 claim.62
B. Plaintiffs’ Face a Substantial Risk of Severe Illness and Death that Constitutes a Legally Cognizable Injury Sufficient to Confer Standing
Defendants’ characterization of Plaintiffs’ injury as “speculative”—insofar as they have not demonstrated an instance of COVID-related death or an even more widespread outbreak in the Jail—is incorrect as a matter of law and fact. R. Doc. 92-1 at 6, 9, 11. To demonstrate an injury-
59 See, e.g., Exh. 2, Day Decl. ¶¶ 3-4; Exh. 4, Carter Decl. ¶ 3; Exh. 5, Suppl. Stewart Decl. ¶ 13; Exh. 3, Parker Decl. ¶ 15; Exh. 6, Suppl. Mancuso Decl. ¶ 11; Exh. 14, Knoten Decl. ¶ 12; Exh. 1, Hassig Decl. ¶ 10. 60 R. Doc. 90 at 8 (emphasis added). 61 R. Doc. 81-2, Mitchell Decl. ¶ 5. 62 If this Court dismisses the § 2241 claim for failure to exhaust, this dismissal should be without prejudice to allow Petitioners to return once state court remedies are exhausted. See Farris v. Allbaugh, 698 F. App’x 950, 958 (10th Cir. June 22, 2017) (dismissing § 2241 claim without prejudice “to provide Farris the opportunity to exhaust his remedies in the [state] courts”); Bataldo-Castillo v. Bragg, 678 F. App’x 166, 166 (4th Cir. Mar. 3, 2017) (same).
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in-fact, Plaintiffs need show only a “substantial risk” of injury. Stringer v. Whitley, 942 F.3d 715, 721 (5th Cir. 2019). Contrary to Defendants’ position, R. Doc. 92-1 at 11, Plaintiffs do not need to demonstrate the actual onset of the injury, let alone the occurrence of death, when the risk of harm is present in a prison setting. See Helling v. McKinney, 509 U.S. 25, 33 (1993) (“It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.”); Gates v. Cook, 376 F.3d 323, 339 (5th Cir. 2004) (prisoner “does not need to show that death or serious illness has yet occurred to obtain relief. He must show that the conditions pose a substantial risk of harm.”); M.D. v. Perry, 294 F.R.D. 7, 34 (S.D. Tex. 2013) (“plaintiff does not need to wait until actually harmed, until the risk of harm is realized”).
The Complaint’s allegations demonstrate that Plaintiffs and the other individuals detained in the Jail they face a substantial risk of harm. Numerous Plaintiffs have already contracted COVID-19, and there have been at least 92 reported COVID-19 cases in the Jail as of May 14, 2020, see, e.g., R. Doc. 84 at 151-52, 215. Presently, COVID-19 continues to linger in the Jail, threatening the lives of individuals who are still incarcerated, and new cases are being discovered daily.63 Not only does COVID-19 already exist in the Jail, but Plaintiffs’ expert explains that Defendants’ practices have created a “tinderbox” for a COVID-19 outbreak that cannot be contained inside the Jail. See, e.g., Exh. 12, Rottnek Decl. ¶¶ 11, 12. Specifically, Dr. Fred Rottnek stated that, “The lack of implementation and maintenance of [the most basic measures to control the spread of COVID-19], as well as the increasing census, and uncontrolled spread of the virus in East Baton Rouge Parish have created a tinderbox for a viral outbreak in the facility and
63 See, e.g., Exh. 12, Rottnek Decl. ¶ 26;. Exh. 3, Parker Decl. ¶¶ 6-9, 15-16; Exh. 2, Day Decl. ¶¶ 3-4; Exh. 4, Carter Decl. ¶ 3; Exh. 6, Suppl. Mancuso Decl. ¶¶ 6-11; Exh. 5, Suppl. Stewart Decl. ¶ 13; cf. Exh. 7, C. Harris Decl. ¶¶ 34-35; Exh. 10, Leagard Decl. ¶ 19; Exh. 14, Knoten Decl. ¶¶ 12, 14.
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even more viral spread in the surrounding community.” Id. ¶ 11. In addition, Plaintiffs have already shown that they are unable to socially distance in the Jail and that the hygiene measures implemented by Defendants have not protected them from actually contracting COVID-19.64
Courts regularly find standing in COVID-19 detention cases, even when the petitioners have yet to contract COVID-19. In Pimentel-Estrada v. Barr, the court found that a medically vulnerable individual in immigration detention who had not yet contracted COVID-19 met the threshold showing for an injury-in-fact by alleging his inability to follow social distancing and hygiene measures, in the face of public health consensus that such measures are the “only defense against the virus.” No. C20-495 RSM-BAT, 2020 WL 2092430, at *9 (W.D. Wash. Apr. 28, 2020). General allegations of unsafe conditions are sufficient to meet the injury-in-fact requirement, because “[c]ourts have recognized that unsafe conditions in a prison or detention center in and of themselves constitute a concrete injury, even if further resulting harm has not yet occurred.” Id. Similarly, in Matos v. Lopez Vega, the court found an injury-in-fact based on the “highly contagious nature of the virus,” despite the absence of any suspected COVID-19 cases at the facility and even with the possibility that petitioners may never contract COVID-19. No. 20CIV-60784-RAR, 2020 WL 2298775, at *4-7 (S.D. Fla. May 6, 2020); see also Helling, 509 U.S. at 33 (finding an Eighth Amendment remedy where detainees are crowded in cells with “infectious maladies,” “even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed.” (citation omitted)).
Cases like Pimentel-Estrada and Matos are overwhelmingly the norm. But rather than looking to the myriad cases finding standing for detainees raising COVID-19 challenges, Defendants rely almost exclusively on a mischaracterization of Marlowe v. LeBlanc, No. 18-63-
64 See, e.g., Exh. 12, Rottnek Decl. ¶ 20; Exh. 1, Hassig Decl. ¶ 9; R. Doc. 21-1 at 7-23; R. Doc. 67 at 3-12.
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BAJ-EWD, 2020 WL 1955303 (M.D. La. Apr. 23, 2020). Contrary to Defendants’ claim, the basis for the court’s standing finding was not solely attributable to the increase in COVID-19 cases. See R. Doc. 92-1 at 12. The court found that the plaintiff had standing despite not having contracted the virus himself because of the inherent “nature of [COVID-19].” Marlowe, 2020 WL 1955303, at *2 (“Due to the nature of this virus, the Court finds that the risk of contracting the virus in a prison environment, where at least 23 inmates have already tested positive, poses a sufficiently high risk . . . even though Plaintiff has not contracted the virus.”); accord Coreas v. Bounds, --- F. Supp. 3d ---, 2020 WL 1663133, at *5 (D. Md. Apr. 3, 2020) (injury exists even without confirmed cases, because of inherent dangers of congregate facilities and the “widespread havoc the virus can wreak once inside these facilities.”);65 Fofana v. Albence, No. 20-10869, 2020 WL 1873307, at *8 (E.D. Mich. Apr. 15, 2020) ( “Petitioners do not need to allege that the jails currently have COVID-19 cases or that they have contracted the virus to demonstrate standing”); Fraihat v. U.S. Immigration & Customs Enf’t, No. EDCV 19-1546 JGB (SHKx), 2020 WL 1932570, at *21 (C.D. Cal. Apr. 20, 2020) (“[e]ven if no detainee . . . had tested positive” the court “rejects the contention that the risk of COVID-19 is overly speculative.”).
And, aside from being legally irrelevant to the standing inquiry, Defendants’ factual assertion that COVID-19 cases have been steadily declining in the Jail rings hollow. Defendants appear to assume that, in the absence of regular testing, there are no cases. R. Doc. 92-1 at 11-12. This is not how the virus—with rampant asymptomatic spreading—works. Coreas, 2020 WL 1663133, at *6 (noting that “it is impossible to point to any confirmed cases . . . when
65 Coreas also held that petitioners met the redressability requirement of standing, finding absurd the claim “that someone will be safer from a contagious disease while confined in close quarters with dozens of other detainees and staff than while at liberty.” Id. at *6 (noting further that “Petitioners have provided multiple expert opinions supporting the contrary conclusion, such as that of Dr. Greifinger, who has stated that [d]etention centers are extraordinarily high-risk environments for the transmission of infectious diseases” (internal quotations omitted)).
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Respondents have not conducted any COVID-19 tests at those facilities.”); see also Exh. 1, Hassig
Decl. ¶ 9; Exh. 12, Rottnek Decl. ¶ 22. In Valentine v. Collier, a court in this Circuit found that
because Plaintiffs pled that 267 inmates tested positive for COVID-19, “it is clear that Plaintiffs
were facing and continue to face a threat of imminent injury.” 2020 WL 3625730, at *1 (S.D.
Tex. July 2, 2020); see also Valentine v. Collier, 2020 WL 3491999, at *1 (S.D. Tex. June 27,
2020). There, the number of confirmed cases reflected implementation of “mass testing” of
inmates. 2020 WL 3491999, at *8. Where, as here, almost 100 individuals at the Jail have already
tested positive for COVID-19, in the absence of comparable “mass testing,” R. Doc. 4 at ¶¶ 2, 78, 102-105,66 the logic of Valentine compels a finding of injury-in-fact in this case as well.
Indeed, the risk of infection in the Jail is speculative only if one believes multiplication is
speculative. Baton Rouge is reporting some of the highest numbers of COVID-19 cases in Louisiana.67 Social distancing—the only effective remedial measure against transmission—is impossible in the Jail, which is otherwise decrepit, unhygienic, and unsafe.68 Furthermore,
contrary to Defendants’ claim of a decrease in cases, individuals within the Jail have been
experiencing a second wave of cases within the facility, with more than six detainees having spent time on the coronavirus lockdown line since the beginning of the month.69
Finally, Defendants’ reliance on O’Shea v. Littleton, 414 U.S. 488 (1974), and City of Los
66 Defendants have administered tests in only the most limited circumstances, reserving testing for people who were so sick they had to be moved to the solitary confinement lines. R. Doc. 4 at ¶¶ 2, 78, 102-05. 67 Scottie Hunter, East Baton Rouge Parish surpasses Orleans Parish in COVID-19 cases, has second highest in state, WAFB9 (July 28, 2020), available at https://www.wafb.com/2020/07/28/east-baton-rouge-parish-surpassesorleans-parish-covid-cases-has-second-highest-state/; cf. Exh. 1, Hassig Decl. ¶¶ 2-3; Exh. 12, Rottnek Decl. ¶ 35. 68 Notably, all the declarants agree about these facts. See Exh. 12, Rottnek Decl. ¶ 39; Exh. 11, Pettice Decl. ¶¶ 8, 12, 25, 27, 28, 33-35; Exh. 6, Suppl. Mancuso Decl. ¶¶ 5, 14, 16; Exh. 10, Leagard Decl. ¶¶ 4-10; Exh. 9, Bernard Decl. ¶¶ 13-15, 17, 21; Exh. 7, C. Harris Decl. ¶¶ 7, 11, 21, 23, 26-29, 31, 36, 37, 39, 42, 44-45; Exh. 3, Parker Decl. ¶ 10; Exh. 8, Banks Decl. ¶¶ 7, 9, 11, 19, 23, 27; Exh. 2, Day Decl. ¶¶ 4, 6, 8-9; Exh. 4, Carter Decl. ¶¶ 6-8; Exh. 5, Suppl. Stewart Decl. ¶¶ 5, 7, 10; Exh. 13, Kemp Decl. ¶¶ 23, 25-27, 32-37; Exh. 14, Knoten Decl. ¶¶ 7, 10, 14, 18; Exh. 1, Hassig Decl. ¶ 9. 69 See, e.g., Exh. 2, Day Decl. ¶¶ 3-4; Exh. 4, Carter Decl. ¶ 3; Exh. 5, Suppl. Stewart Decl. ¶ 13; Exh. 3, Parker Decl. ¶ 15; Exh. 6, Mancuso Decl. ¶ 11; cf. Exh. 8, Banks Decl. ¶¶ 19, 21; Exh. 14, Knoten Decl. ¶¶ 14-15.
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Angeles v. Lyons, 461 U.S. 95 (1983), is misplaced. First, unlike in those cases, Plaintiffs in no way base their claim of injury on past misconduct by the defendants; their risk of harm stems from the clinical way in which the virus will likely appear—or reappear any number of times—and spread in a congregate facility where social distancing is impossible. Second, the risk of injury here is fundamentally different than that in Lyons, which the Court stressed depended upon a series of escalating contingencies that would likely never happen to Mr. Lyons again: that is, to be subject to the unlawful chokehold again, Lyons would have to commit a traffic violation, be caught and confronted by police officers, and verbally or physically assault the police officers so as to trigger the chokehold restraint he was challenging. Id. at 98, 110; cf. Hernandez v. Cremer, 913 F.2d 230, 234-35 (5th Cir. 1990) (distinguishing Lyons because the “injury alleged to have been inflicted did not result from an individual’s disobedience of official instructions and Hernandez was not engaged in any form of misconduct; on the contrary, he was exercising a fundamental constitutional right.”). Here, there was no disobedient or unlawful act by the Plaintiffs that resulted in a subsequent injury—the only thing they have to do is breathe to contract COVID-19. And there is no contingent escalation of their situation by Plaintiffs that could exacerbate the risk they face—in fact, it is quite the opposite: Plaintiffs are being threatened by remaining in the same unsafe situation in which they already exist every day.70 III. PLAINTIFFS HAVE STATED VIABLE CLAIMS FOR RELIEF UNDER 42 U.S.C.
§ 1983 BASED ON VIOLATIONS OF THEIR EIGHTH AND FOURTEENTH AMENDMENT RIGHTS In addition to their habeas claims, Plaintiffs seek relief from this Court under 42 U.S.C. § 1983 for their confinement under unconstitutional conditions. Without the benefit of any
70 See, e.g., Exh. 3, Parker Decl. ¶¶ 6-9, 15-16; Exh. 2, Day Decl. ¶¶ 3-4; Exh. 4, Carter Decl. ¶ 3; Exh. 6, Suppl. Mancuso Decl. ¶¶ 6-11; Exh. 5, Suppl. Stewart Decl. ¶ 13; Exh. 7, C. Harris Decl. ¶¶ 34-35; Exh. 10, Leagard Decl. ¶ 19; Exh. 13, Kemp Decl. ¶¶ 17-19, 22-23, 25-34, 37-40; Exh. 1, Hassig Decl. ¶ 9; Exh. 12, Rottnek Decl. ¶ 36; cf. Exh. 6, Suppl. Mancuso Decl. ¶ 18 (describing escalating shakedowns since the lawsuit).
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meaningful discovery however, the Sheriff Defendants appear to think that these claims are ripe for dismissal under Rule 12(b)(6).71 R. Doc. 92-1 at 6. Even examining only the allegations in the Complaint and its attachments—as this Court is bound to do under Rule 12(b)(6)—Defendants’ arguments are patently without merit.
A. Plaintiffs Detained Pre-Trial State a Claim Under the Fourteenth Amendment “Pretrial detainees look to the procedural and substantive due process guarantees of the Fourteenth Amendment for their ‘rights to basic needs such as medical care and safety.’” Cleveland v. Gautreaux, 198 F. Supp. 3d at 733 (citing Hare v. City of Corinth, Miss., 74 F.3d 633 (5th Cir. 1996)). “[T]he substantive limits on state action set by the Due Process Clause provide that the state cannot punish a pretrial detainee . . . and [a]ny ‘punishment’ of a pretrial detainee, therefore, will run afoul of the Constitution.” Cleveland, 198 F. Supp. at 733 (citations and quotation marks omitted). “The medical care a prisoner receives is just as much a ‘condition’ of his [or her] confinement as the food he [or she] is fed.” Wilson v. Seiter, 501 U.S. 294, 303 (1991). Conditions amount to impermissible punishment if they are unreasonably excessive as compared a legitimate government purpose. Bell v. Wolfish, 441 U.S. 520, 535 (1979); Hare, 74 F.3d at 639. Plaintiffs challenge their unconstitutional treatment under both a conditions-ofconfinement theory and an episodic-act-or-omission theory. See, e.g., Estate of Henson v. Wichita Cty., Tex., 795 F.3d 456, 462-64 (5th Cir. 2015) (“there is no rule barring plaintiff from pleading both alternative theories, and a court may properly evaluate each separately”). Conditions-ofconfinement challenges are “attacks on general conditions, practices, rules, or restrictions of pretrial confinement.” Hare, 74 F.3d at 644. Plaintiffs’ Complaint alleges facts that “demonstrate
71 The Sheriff Defendants allege that Plaintiffs have not adequately pled the prerequisites for release under the Prison Litigation Reform Act. See 18 U.S.C. § 3626(a)(2) (requiring plaintiff to request release from a three-judge panel and present “materials sufficient to demonstrate that the requirements [for release] have been met”). How they expect Plaintiffs to make this showing without meaningful discovery is left unanswered in their brief.
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a pervasive pattern of serious deficiencies in providing for [Plaintiffs’] basic human needs.” Shepherd v. Dallas Cty., 591 F.3d 445, 454 (5th Cir. 2009).72 They “reflect an unstated or de facto policy, as evidenced by a pattern of acts or omissions ‘sufficiently extended or pervasive, or otherwise typical of extended or pervasive misconduct by [jail] officials, to prove an intended condition or practice.’” Id. at 452 (quoting Hare, 74 F.3d at 645).
Plaintiffs do not need to affirmatively plead that Defendants acted with malice, “for even where a State may not want to subject a detainee to inhumane conditions of confinement or abusive jail practices, its intent to do so is nevertheless presumed when it incarcerates the detainee in the face of such known conditions and practices.” Hare, 74 F.3d at 644. The only legitimate government interest in the detention of pre-trial detainees is limiting the risk of flight. But subjecting these Plaintiffs to a serious risk of exposure, illness, or death to serve that interest73— particularly where there exist non-bail alternatives to detention—plainly “nudges” Plaintiffs’ claim that the serious conditions at the Jail are not “reasonably related to a legitimate governmental interest,” id. (quoting Wolfish, 441 U.S. at 539), “across the line from the conceivable to plausible.” Iqbal, 542 U.S. at 680.
Under this circuit’s episodic-act-or-omission theory of liability, a “pre-trial detainee must establish that an official acted with subjective deliberate indifference.” Hare, 74 F.3d at 649 n.4. The detainee must also sufficiently allege that the “employee’s act resulted from a municipal policy or custom adopted or maintained with objective deliberate indifference to the detainee’s constitutional rights.” Id. The Sheriff Defendants are sued in their official capacity only.74
72 See R. Doc. 4 ¶¶ 71-73, 83 (showing that since at least 2015, policymakers—including the named Sheriff Defendants—knew the Jail failed to provide safe conditions of confinement and adequate health care to detainees). 73 See, e.g., R. Doc. 4 ¶¶ 1-6, 109-11 (alleging that, in the midst of a global pandemic from a highly infectious and deadly novel coronavirus, the Sheriff Defendants detain Plaintiffs in conditions of confinement that expose them to the virus, fail to permit them to protect themselves, and house individuals infected with the virus in solitary confinement cells that were closed years ago due to their unsuitability for humans beings). 74 R. Doc. 4 ¶¶ 26-27.
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Official capacity claims under an episodic-acts-and-omissions theory must allege a constitutional violation and satisfy official capacity liability, which requires: (1) an official policy, practice, or custom that could subject the municipality to § 1983 liability; (2) the official policy is linked to the constitutional violation; and (3) the official policy reflects the municipality’s deliberate indifference to that injury. Lawson v. Dallas Cty., 286 F.3d 257, 263 (2d Cir. 2002).
Plaintiffs’ allegations demonstrate that the Sheriff Defendants are liable under both a conditions-of-confinement theory and an episodic-act-or-omission theory. The Complaint alleges that the Jail’s conditions of confinement and health care delivery system violate Plaintiffs’ constitutional rights to relative safety from COVID-19 and access to adequate health care.75 Since at least early 2015, the Sheriff Defendants have personally and publicly discussed the need for a new Jail, tacitly admitting that the current facility is unsafe.76 Plaintiffs’ Complaint alleges that Sheriff Defendants knew the “old part of the prison is really in deplorable condition. We have issues with ventilation; with plumbing.”77 In spite of this knowledge, Plaintiffs allege that the Sheriff Defendants place detainees with COVID-19 into living areas they closed years ago and fail to provide access to adequate medical care.78 The conditions alleged—“walls and floors are filled with mold and rust, the showers and toilets are broken or bug infested, . . . rats have overrun some dorm areas, requiring detainees to sleep with their food to prevent it from being eaten by vermin” and blood streaked walls79—violate the Constitution. See, e.g., Gates, 376 F.3d at 338 (filthy cell conditions may constitute a violation of the constitution (citations omitted)); Foulds v. Corley, 833 F.2d 52, 54 (5th Cir. 1987) (“Allegations of a cold, rainy, roach-infested jail cell, with
75 R. Doc. 4 ¶¶ 71-73, 82-83. 76 Id. ¶ 71; see also R. Doc. 84 at 144-145. 77 R. Doc. 4 ¶ 71; see also R. Doc. 84 at 144-145 (Warden Grimes admits parts of the Jail are “deplorable”). 78 R. Doc. 4 ¶¶ 82-83. 79 R. Doc. 4 ¶ 82.
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inoperative toilet facilities, stated a cause of action under the eighth and fourteenth amendments.” (citations omitted)). Plaintiffs further describe how those conditions and the policies, patterns, and practices adopted by the Sheriff Defendants caused and continue to cause harm to all detainees and impose a constitutionally intolerable exposure to a deadly virus.80 Under both theories of liability, the Sheriff Defendants expose Plaintiffs to the virus that causes COVID-19 and refuse to allow Plaintiffs to take the precautions necessary to avoid this serious illness.
B. Plaintiffs Also State a Claim Under the Eighth Amendment Although an Eighth Amendment imposes a higher standard on the post-conviction class, the detailed allegations in the Complaint plausibly support an inference that Defendants have also been deliberately indifferent to the medical needs of post-conviction detainees.81 To prove an Eighth Amendment violation, Plaintiffs must show that the Sheriff Defendants “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Having sufficiently alleged such knowledge and indifference in their 168-paragraph Complaint and corresponding 27 exhibits there is a “reasonable expectation that discovery will reveal evidence of” the elements of an Eighth Amendment claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 552 (2007). Plaintiffs’ Complaint—which is all the Court is permitted to consider on this Rule 12(b)(6) challenge— is replete with graphic allegations of overcrowding, unsanitary conditions, inadequate provision of hygiene supplies, lack of COVID-19 testing, and inadequate opportunities for social distancing.82 New detainees arrive at the Jail every day without adequate screening, while the
80 R. Doc. 4 ¶¶ 86-88, 95-96, 100, 109-113, 116-118; see also R. Doc. 21-1 at 7-23 (summarizing the declarations). 81 Id. 82 See, e.g., id. ¶¶ 2, 33, 76, 105, 108 (inadequate testing); id. ¶¶ 43, 80, 141 (daily arrival of new people); id. ¶¶ 5, 82, 98-99, 109, 112-114 (unsanitary conditions); id. ¶¶ 5, 8, 86-90, 95, 110, 112 (lack of distancing/overcrowding).
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Jail’s existing detainee population continues to be forced into close quarters.83 Plaintiffs’ allegations highlight the complete absence of surveillance testing, the daily arrival of new detainees, the vivid testimony of unsanitary conditions, and the lack of social distancing.84 These allegations paint a stark picture of ongoing Eighth Amendment violations inside the Jail.
Notably, the Court can take judicial notice that the pandemic rages at unprecedented levels outside the Jail, but the Sheriff Defendants cannot assert at this stage of the proceedings that their post-filing actions have reasonably abated the risk simply because there are a low number of confirmed cases and there have been no recorded COVID-19 deaths in the Jail.
Finally, “[w]hether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.” Farmer, 511 U.S. at 842. Here, Plaintiffs’ constitutional claims hinge on the Sheriff Defendants’ awareness of the substantial risk of COVID-19 to their health, when they acquired such awareness, and what they did or did not do in response.
CONCLUSION For the reasons stated above, Plaintiffs/Petitioners respectfully request that the Court deny the Sheriff Defendants’ Motion to Dismiss. Respectfully submitted, this 18th day of August, 2020.

/s/ David J. Utter David J. Utter (LA Bar No. 23236) William R. Claiborne (GA Bar No. 126363) FAIR FIGHT INITIATIVE 410 East Bay Street Savannah, Georgia 31401 (912) 236-9559 Telephone (912) 236-1884 Facsimile david@fairfightinitative.org

/s/Miriam R. Nemeth______________ Thomas B. Harvey (MBE #61734MO) Miriam R. Nemeth (DC Bar No. 1028529)** Tiffany Yang (DC Bar No. 230836) ADVANCEMENT PROJECT NATIONAL OFFICE 1220 L Street NW, Suite 850 Washington, DC 20005 (202) 728-9557 Telephone

83 Id. ¶¶ 86-90, 95, 110, 112. 84 See, e.g., id. ¶¶ 2, 33, 76, 105, 108 (inadequate testing); id. ¶¶ 43, 80, 141 (daily arrival of new people); id. ¶¶ 5, 82, 98-99, 109, 112-114 (unsanitary conditions); id. ¶¶ 5, 8, 86-90, 95, 110, 112 (lack of social distancing).
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Case 3:20-cv-00278-BAJ-SDJ Document 99 08/18/20 Page 27 of 27

will@fairfightinitative.org

tharvey@advancementproject.org mnemeth@advancementproject.org tyang@advancementproject.org

/s/ Lillian S. Hardy______________ Lillian S. Hardy (DC Bar No. 991282) Jessica B. Bigby (DC Bar No. 1617315) Hogan Lovells US LLP 555 Thirteenth Street NW Washington, DC 20004 (202) 637-5884 Telephone lillian.hardy@hoganlovells.com Jessica.Bigby@HoganLovells.com
/s/ Robert L. Toll_____________ Robert L. Toll (DC Bar No. 1021934) Hogan Lovells US LLP 390 Madison Avenue New York, NY 10017 (212) 918-307 Telephone robert.Toll@hoganlovells.com
/s/ David Bastian David Bastian (MA Bar No. 691785) Hogan Lovells US LLP 125 High Street, Suite 2010 Boston, MA 02110 (617) 371-1022 Telephone David.bastian@hoganlovells.com

/s/ William P. Quigley William P. Quigley (LA Bar No. 00769) Loyola University New Orleans 7214 St. Charles Avenue Campus Box 902 New Orleans, LA 70117
/s/ Baher Azmy Baher Azmy (NY Bar No. 2860740) Omar Farah (NY Bar No. 4641247) Brittany Thomas (NY Bar No. 5683834) CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 11201 (212) 614-6427 Telephone bazmy@ccrjustice.org ofarah@ccrjustice.org bthomas@ccrjustice.org

Attorneys for Plaintiffs ** Lead Attorney for Plaintiffs

CERTIFICATE OF SERVICE
I hereby certify that on August 18, 2020, a copy of the foregoing was filed electronically with the Clerk of the Court, using the CM/ECF system. Notice of this filing will be sent by operation of the court’s electronic filing system and/or via U.S. Postal Service to counsel of record.
/s/ David J. Utter David J. Utter

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 Case 3:20-cv-00278-BAJ-SDJ Document 90 07/03/20 Page 1 of 12

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

CLIFTON BELTON, JR., ET AL.

CIVIL ACTION

VERSUS

SHERIFF SID GAUTREAUX, ET AL.

NO.: 20-00278-BAJ-SDJ

RULING AND ORDER
Before the Court is Plaintiffs’ Emergency Motion for Temporary Restraining Order (Doc. 21). The Motion is opposed. See (Docs. 38 & 47). A Reply was filed to the oppositions. See (Doc. 67). Following a hearing, the parties filed supplemental briefs. See (Docs. 81, 82 & 83). For the reasons stated herein, the Motion is DENIED.
I. FACTS This action was initially filed on May 4, 2020, pro se, by Plaintiff Clifton Belton, Jr., an inmate at East Baton Rouge Parish Prison (“EBRPP”), who suffers from numerous medical conditions that he argued rendered him more susceptible to complications from COVID-19, which has been detected in inmates at the facility. (Doc. 1, at p. 1–2). On May 27, 2020, an Amended Class Action Complaint was filed on behalf of ten named plaintiffs (Doc. 4, at ¶¶16–25).1 In the Amended Complaint, Petitioners allege that the “jail has made no efforts to implement the standard

1 The Court does not find it necessary to rule on the pending Motion for Class Certification (Doc. 8) at this time due to the urgency of the instant Motion and because this litigation is in the early stages.
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protective measures the medical experts have advised for all people” and they outline numerous factors suggesting that heightened risks are associated with COVID-19 in jails and prisons. (Doc. 4, at ¶¶ 5, 42). Petitioners posit that Defendants’ failure to implement basic mitigating measures will cause the number of infections and deaths to “multiply exponentially at a rapid pace.” (Id. at ¶ 14). Arguing that Defendants’ responses to the pandemic are constitutionally deficient and that EBRPP is “not fit to hold human beings,” Petitioners requested relief for three proposed subclasses of detainees: pretrial, post-conviction, and medically vulnerable detainees. (Doc. 4, at ¶¶ 82, 148–168).
To that end, on the same day, Petitioners filed the instant Emergency Motion seeking release for all members of the proposed medically vulnerable subclass. Petitioners argue this subclass faces the highest risk of sickness and death in EBRPP, where social distancing and “basic mitigating measures,” such as hygiene, testing, and prompt medical care, either have not or cannot be implemented. (Doc. 21–1, at p. 13). Accordingly, Petitioners argue that until there is a vaccine, release is the only effective measure to protect these medically vulnerable detainees. (Id. at p. 18). In support, Petitioners have offered declarations and testimony that asserts that social distancing is impossible within the facility and they cast doubt upon facility cleanliness, staff conduct, and inmate treatment.
The Court notes that both the President of the United States and the Governor of Louisiana have declared a state of emergency in response to this pandemic.2 Early
2 See, Proclamation Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak issued March 13, 2020 by President Donald J. Trump. See also, Declaration of
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on in the pandemic, the Center for Disease Control (“CDC”) recognized the inherent challenges faced by correctional facilities in responding to COVID-19 and provided specific guidance to that end.3 See (Doc. 4–3). Due to the emergency nature of the request, the Court issued an accelerated filing schedule and held a preliminary status conference on June 1, 2020, and a hearing thereafter.
At the hearing, the Court heard oral arguments, as well as witness testimony, from Petitioner Clifton Belton, Jr.; Dr. Fred Rottnek, an expert testifying for Petitioners; Defendant Warden Dennis Grimes; and Phyllis McNeel, a Health Administrator for CorrectHealth which provides healthcare services to EBRPP. Mr. Belton testified that he was released from EBRPP on June 4, 2020. (Doc. 84, at p. 42). He described conditions in the “infirmary dormitory” where he was living as “deplorable” and stated that he could not socially distance from the other people living there with him due to confined space and shared showers and toilets. (Id. at p. 28– 29). He testified that the EBRPP provided masks and sanitary products and that he received disinfectant products upon request. (Id. at p. 67). When he began to feel ill and later tested positive for COVID-19, Mr. Belton was relocated to an isolated area with other detainees who had tested positive. (Id. at p. 37). After testing negative twice, he was returned to the “infirmary dormitory,” which had been sanitized before his arrival. (Id. at p. 58–59).
Public Health Emergency in Response to COVID-19 issued March 11, 2020 by Governor John Bel Edwards. 3 Petitioners allege that the CDC guidance is not a substitute for what is medically required to protect people’s lives during a pandemic. (Doc. 4, at ¶ 47).
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Dr. Rottnek, Petitioners’ expert witness, visited EBRPP for approximately five hours, during which time he spoke to six inmates and visited all the housing and medical units, as well as the laundry and kitchen. (Id. at p. 77). First, Dr. Rottnek clarified that COVID-19 presents more of a risk to individuals with chronic conditions, particularly so in a prison environment. (Id. at p. 75 –76). He opined that immediate release was the only option to provide medically vulnerable detainees with a “fighting chance to distance themselves socially” in the community, thereby mitigating the risk of infection. (Id. at p. 89–90). This conclusion was reached largely due to challenges to social distancing posed by the layout of the facility. Specifically, the beds, toilets, showers, and sinks are all in fixed positions within a few feet of each other. (Id. at p. 79–82). Lastly, he testified that he considers the official CDC guidelines to be a floor, not a ceiling, for protecting EBRPP staff and the inmate population, and he believes that EBRPP is not capable of following those guidelines. (Id. at p. 114).
Next, Defendant Warden Grimes testified about conditions within EBRPP. Importantly, he noted that no inmates had died from the virus during the pandemic. (Id. at p. 123). Information on methods of protecting oneself against the coronavirus was distributed on the dormitories and was displayed on monitors in the facility, providing detainees with information on how to protect themselves. (Id. at p. 127). Signs were posted encouraging social distancing, and the inmates were instructed to sleep head-to-toe. (Id. at p. 130). Further, congregation among inmates is discouraged, recreation and movement of inmates is limited, and meals are delivered
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directly to dormitories rather than served in a communal cafeteria. (Id. at p. 130– 133).
Additionally, Defendant Grimes described intake procedures. Newly incarcerated inmates receive masks and cleaning supplies and are quarantined for a period of 14 days, during which time they are monitored for COVID-19 symptoms before being released to the general population. (Id. at p. 123–124). Supplies are freely distributed to inmates in the general population, but hand sanitizer and bleach are now restricted after it was discovered that some inmates consumed them. (Id. at p. 137). To keep procedures updated, Defendant Grimes attended conference calls with the Department of Corrections, and he also attended a class in which an epidemiologist discussed necessary steps to implement the CDC guidelines within correctional facilities. (Id. at p. 140–141). The jail population has now been reduced and the older part of the facility has been re-opened, which facilitates social distancing at the EBRPP.
Lastly, Ms. McNeel testified that upon first hearing about the virus, she met with EBRPP staff, including Warden Grimes, to devise a plan to implement the CDC recommendations. They decided upon the area of the jail that would be used to isolate inmates who tested positive for COVID-19. (Id. at p. 174). She corroborated Warden Grimes’ testimony that symptomatic individuals were placed in single cells, tested twice daily, and were only returned to the general population if they were asymptomatic, had not tested positive, and been quarantined for fourteen days. (Id. at p. 177–178). The jail also offers a “special needs unit” which provides constant
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observation for inmates who medical doctors have deemed medically vulnerable. (Id. at p. 179). As of the date of the evidentiary hearing, only five COVID-19-positive inmates remained in the facility out of a total population of 1,100. (Id. at p. 189).4
In opposition to the instant Motion, Defendants argue that there is no health emergency at the jail—that the measures implemented by EBRPP have prevented deaths and reduced the number of COVID-19 cases since this action was filed. (Doc. 47, at p. 2). Further, they argue that Petitioners have failed to exhaust administrative remedies. (Id.). Lastly, Defendants argue that habeas relief under 28 U.S.C. § 2241 is not the appropriate cause of action to bring this claim because Petitioners failed to exhaust state court remedies and inappropriately use the habeas corpus process to attack the conditions of confinement. (Doc. 82, at p. 4–5; Doc. 83 at p. 2).
II. LEGAL STANDARD To obtain injunctive relief by way of a Temporary Restraining Order, Plaintiff must establish: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) that the threatened injury outweighs any harm that will result to the non-movant if the injunction is granted; and (4) that the injunction will not disserve the public interest. See Ridgely v. Fed. Emergency Mgmt. Agency, 512 F.3d 727, 734 (5th Cir. 2008).
4 Following the hearing, Defendants submitted additional evidence indicating that as of June 15, 2020, only three inmates at the jail tested positive for COVID-19, with no new suspected cases awaiting tests. (Doc. 83, at p. 9). Also, on June 2, 2019, the daily inmate count in EBRPP was 1,347. One year later, on June 2, 2020, the population had been reduced to 1,062, following coordinated release efforts. (Doc. 47, at p. 16).
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III. DISCUSSION Petitioners seek broad relief through an untraditional mechanism—a writ of habeas corpus under 28 U.S.C. § 2241. Initially, Petitioners filed the instant motions seeking relief either through § 2241 or, in the alternative, through 42 U.S.C. § 1983, for violations of the Eighth and Fourteenth Amendments. (Doc. 21–1, at p. 35). However, in their Reply and at the hearing held on June 10, 2020, Petitioners clarified that they solely seek habeas relief through § 2241. (Doc. 67 at p. 14; Doc. 84 at p. 13). Under § 2241(c)(3), a writ of habeas corpus extends to prisoners who are held in custody in violation of the Constitution or laws of the United States. 28 U.S.C. § 2241. Fundamentally, Petitioners’ aver that, short of release, there are no measures Defendants can implement to protect members of the proposed medically vulnerable subclass from unprecedented and severe threats to their safety and health. (Doc. 21–1, at p. 38). Not only do they argue that such measures are impossible to implement, Petitioners further claim that Defendants’ efforts to protect the medically vulnerable inmates from COVID-19 “have been virtually non-existent.” (Doc. 81, at p. 2). Because there are “no set of conditions under which an individual can be constitutionally detained,” Petitioners argue that they are challenging the fact of their continued confinement. (Doc. 4, ¶164). Generally, exhaustion of available state court remedies is a prerequisite for a federal court to consider a challenge to state detention. Montano v. Texas, 867 F.3d 540, 542 (5th Cir. 2017). Petitioners offer several arguments to support excusing this
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requirement due to the dire circumstances and closure of state courts.5 (Doc. 81, at p. 5–8). While the exhaustion requirement applies only to post-trial petitions, district courts are urged to abstain from pre-trial habeas petitions “if the issues raised in the petition may be resolved either by trial on the merits in the state court or by other state procedures available to the petitioner.” Dickerson v. State of La., 816 F.2d 220, 225 (5th Cir. 1987) (citations omitted).
Petitioners’ argument that no available remedies exist is belied by the facts in the record. For one, the eponymous Petitioner, Mr. Belton, has already been released to home confinement. (Doc. 84, at p. 42). More importantly, Warden Grimes testified that all inmates at the jail have been considered for release. Under the release review protocols, if EBRPP officials believe an inmate should be released, appropriate recommendations are made to the sentencing court and District Attorney. (Id., at p. 221). As stated supra, the number of infected inmates at EBRPP has decreased considerably since the filing of this action, rather than “multiply exponentially at a rapid pace,” and no inmates have died.
Critically, the Court is not persuaded that Petitioners are truly challenging the fact or duration of confinement, as required for a habeas petition under § 2241, but are instead arguing that conditions at EBRPP are constitutionally deficient in violation of the Eight Amendment. Habeas review is not available to issues unrelated to the cause of detention — “its sole function is to grant relief from unlawful
5 The Court notes that the 19th Judicial District Court in Baton Rouge has now re-opened with various coronavirus safety measures in place. See 19th JDC, Baton Rouge City Court Reopening to Public Monday, https://www.theadvocate.com/baton_rouge/news/coronavirus/article_364d7e48-9548-11eabe15-a74f3c768d4d.html
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imprisonment or custody, and it cannot be used properly for any other purpose.” Pierre v. United States, 525 F.2d 933, 935–36 (5th Cir. 1976). The docket in this case is replete with evidence concerning the conditions within EBRPP. Numerous allegations are made concerning unsanitary conditions that may be of particular concern for the broadly defined medically vulnerable class. However, no arguments are offered concerning the merits of the underlying charges that resulted in their confinement. Instead, as noted, Petitioners seek a remedy that is more appropriately pursued as an Eighth Amendment conditions of confinement claim rather than as habeas relief.
In support of their interpretation, Petitioners rely in part on a case from the Southern District of Texas, Vazquez Barrera v. Wolf, No. 4:20-CV-1241, 2020 WL 1904497 (S.D. Tex. Apr. 17, 2020), in which immigration detainees sought release from federal custody through a writ of habeas corpus. Refusing to rule on whether “conditions-of-confinement cases that do not challenge the ‘fact or duration’ of detention properly sound in habeas,” the court held that the detainees were in fact challenging the fact or duration of confinement because injunctive relief was unavailable and “no conditions of confinement…are sufficient to prevent irreparable constitutional injury given the facts presented in their individual cases.” Vazquez Barrera v. Wolf, No. 4:20-CV-1241, 2020 WL 1904497, at *4 (S.D. Tex. Apr. 17, 2020). Petitioners further support this argument by citing another case that refused to rule on the propriety of challenges of conditions of confinement through a writ of habeas
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corpus, but simply acknowledged that the line between claims under § 2241 and § 1983 could be blurry. Poree v. Collins, 866 F.3d 235, 243 (5th Cir. 2017).
The Court does not interpret that blurry line in the way that Petitioners do. Cases cited by Petitioners specifically declined to rule on whether claims attacking conditions of confinement properly sound in habeas, and the subject matter here is such that the Court can only view it as an attack on conditions of confinement. Substantively, the hearing, the pleadings, and vast majority of the evidence provided only address the conditions within EBRPP, which the Court lacks jurisdiction to address under § 2241. Sanchez v. Brown, No. 3:20-CV-00832-E, 2020 WL 2615931, at *12 (N.D. Tex. May 22, 2020) (citing Pierre v. U.S., 525 F.2d 933, 935 (5th Cir. 1976)). Petitioners propose a plan for individualized assessment for release, but ultimately request mass release of a class of medically vulnerable individuals who are defined more broadly than the CDC’s definition. While Petitioners contend that social distancing is impossible, they do not consider whether a partial release could reduce the prison population to a point where social distancing becomes possible. At its core, this case presents a disagreement over safety measures taken in a state prison. The Court does not see fit to stretch the scope of § 2241 to include such claims.
Finally, the Court is not persuaded that Petitioners are likely to succeed on the merits of their claim even if it were to exercise jurisdiction over the claims. Because their argument is premised entirely upon the allegedly unconstitutional conditions in the facility, specifically with respect to the Eighth and Fourteenth Amendments, the merits of those claims must be briefly examined. Recently, the Court of Appeals
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for the Fifth Circuit emphasized that “it is ‘difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.’” Valentine v. Collier, 956 F.3d 797, 803 (5th Cir. 2020) (citation omitted).
Moreover, based on the measures taken by EBRPP, it is unlikely that Petitioners could establish a claim of subjective deliberate indifference. Defendants have clearly demonstrated that they have taken measures to implement precautions to protect inmates from the COVID-19 pandemic. They have closely reviewed CDC guidelines for prisons, implemented screening and hygiene procedures, distributed masks and cleaning supplies, and even reduced the prison population and released certain medically vulnerable prisoners, including Mr. Belton. This does not satisfy the requisite state of mind indicative of subjective deliberate indifference, which the Supreme Court has observed to be akin to recklessness. (Id., at p. 802). Here, officials at EBRPP consulted with public health professionals, devised and incorporated safety protocols at the facility, and informed the inmates of measures that they, themselves, could perform to protect themselves from the virus while in the facility. While the Court does not now reach a judgment on the alleged Constitutional violations asserted by Petitioners, it finds that Petitioners have failed to demonstrate a substantial likelihood of success on the merits of the habeas claims.
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Case 3:20-cv-00278-BAJ-SDJ Document 90 07/03/20 Page 12 of 12 IV. CONCLUSION Accordingly, for the foregoing reasons, IT IS ORDERED that Plaintiffs’ Emergency Motion for Temporary Restraining Order (Doc. 21) is DENIED.
Baton Rouge, Louisiana, this 3rd day of July, 2020 _______________________________________ JUDGE BRIAN A. JACKSON UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
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 Case 3:20-cv-00278-BAJ-SDJ Document 115 02/04/21 Page 1 of 16

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

CLIFTON BELTON, JR., ET AL.
VERSUS
SHERIFF SID GAUTREAUX, IN HIS OFFICIAL CAPACITY AS SHERIFF OF EAST BATON ROUGE, ET AL.

CIVIL ACTION NO. 20-00278-BAJ-SDJ

RULING AND ORDER Before the Court are two motions to dismiss: the Motion To Dismiss Pursuant To Rule 12(b) (Doc. 92) by Defendants, Sheriff Sid J. Gautreaux, III, and Lt. Col. Dennis Grimes (the “Sheriff Defendants”); and the Motion to Dismiss (Doc. 104) by Defendant City of Baton Rouge/Parish of East Baton Rouge (the “City/Parish”). Collectively, Defendants’ Motions seek wholesale dismissal of Plaintiffs’ putative class action, with prejudice. Plaintiffs oppose Defendants’ Motions. (Docs. 99, 110). Defendants have filed reply memoranda in further support of their respective Motions, (Docs. 103, 108), and Plaintiffs and Defendants have each submitted supplemental letters to the Court regarding recent factual and legal developments relevant to Plaintiffs’ claims (Docs. 111, 112). For reasons to follow, Defendants’ Motions will be granted, and Plaintiffs’ action will be dismissed with prejudice. I. ALLEGED FACTS Plaintiffs’ proposed class action is one of many in this Circuit and around the nation alleging unconstitutional prison conditions wrought by the ongoing COVID-19
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pandemic. For present purposes, the following allegations are accepted as true. Plaintiffs consist of ten men who are, or have recently been,1 incarcerated in
the East Baton Rouge Parish Prison (“EBRPP”). (Doc. 4 at ¶¶ 16-25). They are all African-American, range in age from 21 to 60 years old, and many suffer from chronic health conditions including diabetes, high blood pressure, and heart disease. (Id.). Two have been convicted of criminal offenses and are serving prison sentences, (id. at ¶¶ 17-18), eight are awaiting trial (id. at ¶¶ 16, 19-25). Some are housed in the general population, (id. at ¶¶ 18, 19, 23-25), others are in solitary quarantine due to having been exposed to COVID-19 (id. at ¶¶ 17, 20-22). One Plaintiff (Jerry Bradley) alleges that he contracted COVID-19 while imprisoned. (Id. at ¶ 17). All allege that they are at substantially greater risk of contracting COVID-19 as a result of Defendants’ failures to adequately safeguard prisoners against the virus.
Plaintiffs’ Amended Complaint spans 168 paragraphs. Their chief accusations, however, are summed up in three paragraphs appearing near the beginning:
The jail has made no efforts to implement the standard protective measures that medical experts have advised for all people. The jail does not practice or promote social distancing, does not adequately clean or disinfect common and high-touch areas, and otherwise leaves detained individuals without sufficient soap or masks to protect themselves; it provides inadequate medical care to detainees battling the coronavirus, and it has even stopped performing routine medical checks to track and treat transmissions of the virus, despite statements to the contrary in the media. The over 1,000 people still jailed at EBRPP continue to sleep less than three feet apart from each other; breathe the same contaminated air; share showers, toilets, and telephones; and congregate in enclosed spaces for mandated roll calls and pill calls.
But, perhaps most shockingly, the jail has chosen to warehouse
1 Since the filing of this action, two of the named Plaintiffs have been released to homeconfinement pending trial, including lead Plaintiff Clifton Belton, Jr.
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detainees who test positive for or exhibit symptoms of COVID-19 in a building that has been condemned since 2018. Those individuals are confined in their cells for almost 24 hours every day without adequate access to the medical care they need.
In short, the jail forces the individuals in its care to endure unconstitutional conditions that deny them the precautions and protections necessary to mitigate against the risks of COVID-19, most critically the ability to socially distance from those around them. (Id. at ¶¶ 5-7). As a result of these alleged conditions, Plaintiffs seek various forms of injunctive relief, including an order immediately releasing medically vulnerable prisoners to home confinement, and an order directing Defendants to improve their efforts to protect prisoners against COVID-19 through social distancing, and increased access to testing, masks, hand sanitizer, temperature checks, and personal hygiene and cleaning supplies. (Id. at pp. 62-63 (Prayer for Relief)). Critically, even as Plaintiffs allege that Defendants have “made no efforts to implement the standard protective measures” against COVID-19, their Amended Complaint details multiple protective measures implemented by Defendants since the onset of the pandemic. These include: (1) closing the prison to outside visitors beginning in mid-March 2020, (Doc. 4 at ¶ 65); discontinuing all non-emergency offsite trips, (id.); reopening previously condemned portions of the prison to serve as isolation wings for prisoners testing positive for COVID-19, (id. at ¶ 109); “quarantining” the general population according to housing “line,” (id. at ¶ 85); preventing prisoners from leaving their quarantined housing line except for medical care or removal to a COVID-19 isolation wing, (id.); testing prisoners for COVID-19, (id. at ¶ 105); removing prisoners testing positive for COVID-19 to an isolation wing,
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and allowing such prisoners to return to the general population only after two successive negative COVID-19 tests, (id. at ¶ 124); providing meals to prisoners in their housing lines rather than the mess hall, (id. at ¶ 98); supplying masks to all prisoners or, in the absence of masks, cloth bandanas, (id. at ¶ 91); providing “limited cleaning supplies” to prisoners, (id. at ¶¶ 93, 114); providing soap to prisoners, (id. at ¶ 97); conducting universal temperature checks beginning in April 2020, (id. at ¶ 102); and providing personal protective equipment to prison staff, including masks, gloves, and body suits, (id. at ¶ 123).
II. PROCEDURAL HISTORY Lead plaintiff Clifton Belton, Jr. filed his original pro se Complaint on May 4,
2020. (Doc. 1). Thereafter, Mr. Belton obtained representation, and, through counsel, filed the Amended Class Action Complaint on May 27, 2020, joined by nine additional Plaintiffs. (Doc. 4).
The Amended Complaint seeks recognition of a class consisting of “all current and future persons held at the East Baton Rouge Parish Prison during the course of the COVID-19 pandemic” (the “Jail Class”). (Doc. 4 at ¶ 136). The Amended Complaint further seeks recognition of three subclasses: (1) members of the Jail Class that have not yet been convicted of an offense (the “Pretrial Subclass”); (2) members of the Jail Class that have been convicted of an offense and are serving sentences (the “Post-Conviction Subclass”); and (3) members of the Jail Class older than 65 years or suffering from pre-existing medical conditions putting them at higher risk of serious illness or death due to COVID-19 (the “Medically Vulnerable Subclass”). (Id. at ¶¶ 136-37).
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Plaintiffs allege two distinct constitutional violations: (1) Defendants’ failures to adequately protect prisoners against the COVID-19 pandemic have denied members of the Post-Conviction Subclass of their Eighth Amendment right to be free from cruel and unusual punishment (Count II); and (2) the same failures have denied members of the Pretrial Subclass of their Fourteenth Amendment right to due process (Count I). Additionally, based on the same alleged constitutional violations, the Medically Vulnerable Subclass seeks release to home confinement pursuant to the habeas corpus statute, 28 U.S.C. § 2241 (Counts III and IV).
The same day that they filed the Amended Complaint (May 27, 2020), Plaintiffs sought a temporary restraining order (TRO) requiring Defendants to immediately release all members of the Medically Vulnerable Subclass to home confinement. (See Doc. 5). On July 3, 2020, after multiple rounds of briefing and an evidentiary hearing, the Court denied Plaintiffs’ request for a TRO. (Doc. 90). In relevant part, the Court’s July 3 Order made a preliminary determination that Plaintiffs’ claims were unlikely to succeed because Defendants’ response to challenges posed by the COVID-19 pandemic belied Plaintiffs’ claims of “subjective deliberate indifference.” (Doc. 90 at 11). The Court explained:
Defendants have clearly demonstrated that they have taken measures to implement precautions to protect inmates from the COVID-19 pandemic. They have closely reviewed CDC guidelines for prisons, implemented screening and hygiene procedures, distributed masks and cleaning supplies, and even reduced the prison population and released certain medically vulnerable prisoners, including Mr. Belton. This does not satisfy the requisite state of mind indicative of subjective deliberate indifference, which the Supreme Court has stated to be akin to recklessness. Though Petitioners may disagree whether these measures are enough, EBRPP has taken the initiative, consulted with
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professionals, devised, and incorporated safety protocols and education for its inmates. While the Court does not rule on the alleged Constitutional violations at this time, it finds that Petitioners have failed to demonstrate a substantial likelihood of success on the merits of their claims. (Id.). On July 28, 2020, the Sheriff Defendants filed their Motion to Dismiss. (Doc. 92). On October 23, 2020, the City/Parish followed with its Motion. (Doc. 104). The arguments raised in each Motion are the same. First, Defendants seek dismissal under Federal Rule of Civil Procedure (“Rule”) 12(b)(1), contending that the Court lacks jurisdiction because Plaintiffs cannot show an imminent risk of harm and thus cannot establish standing. (Doc. 92-1 at 8-13; Doc. 104-2 at 4-8). Additionally, Defendants contend that any claims to immediate release must be dismissed because Plaintiffs have failed to exhaust their administrative remedies, and because, generally, a writ of habeas corpus under 28 U.S.C. § 2241 is reserved for cases alleging unconstitutional cause or duration of confinement, and is not available to plaintiffs challenging unconstitutional conditions of confinement. (Doc. 92-1 at 12-16; Doc. 104-2 at 8-13, 18-19). In the alternative, Defendants seek dismissal under Rule 12(b)(6), arguing that Plaintiffs’ constitutional claims fail because Plaintiffs cannot show that they were subjected to “an objectively intolerable risk of harm” resulting from Defendants’ response to the COVID-19 pandemic, or that Defendants’ response exhibits “subjective deliberate indifference.” (Doc. 92-1 at 23-25; Doc. 104-2 at 15-18). For reasons explained below, the Court determines that Defendants’ jurisdictional challenges fail, but that Plaintiffs’ action must nonetheless be
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dismissed because the allegations in Plaintiffs’ Amended Complaint defeat their assertions of “subjective deliberate indifference.”
III. LAW AND ANALYSIS A. Jurisdiction
Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claims. In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286–287 (5th Cir. 2012). Under Rule 12(b)(1), a claim is “properly dismissed for lack of subject-matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate” the claim. Id. A court should consider a Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Id.
Here, Defendants raise three jurisdictional attacks: Plaintiffs lack standing to pursue their claims; Plaintiffs have failed to exhaust their administrative remedies; and Plaintiffs cannot establish a right to immediate release under 28 U.S.C. § 2241. The Court addresses each argument in turn.
i. Standing “Article III standing requires a plaintiff to show: (1) an injury in fact (2) that is fairly traceable to the actions of the defendant and (3) that likely will be redressed by a favorable decision.” See Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469, 473 (5th Cir. 2013) (quotation marks omitted). Defendants argue that Plaintiffs cannot show an injury-in-fact because “[t]here currently is no mass outbreak of COVID-19 at the Jail” and “Defendants have shown that they have successfully at this time quelled the outbreak of COVID-19 at the Jail.” (Doc. 92-1 at 11).
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Even accepting Defendants’ assertions as true, their objection misses the mark. Plaintiffs’ essential allegation is that they are at substantially greater risk of contracting COVID-19 due to Defendants’ failures to safeguard prisoners against the virus. Allegations of increased risk of harm (or future injury) establish standing “if the threatened injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm will occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158, (2014). Undeniably, COVID-19 remains an active threat across the nation and throughout our state. This Court has previously acknowledged that prison environments are especially susceptible to COVID-19 outbreaks. See Marlowe v. LeBlanc, No. 18-cv-63, 2020 WL 1955303, at *2 (M.D. La. Apr. 23, 2020). Here, multiple Plaintiffs allege that they have been assigned to the EBRPP’s COVID-19 solitary confinement lines due to having been exposed to the virus, and one Plaintiff alleges that he contracted COVID-19 while incarcerated.
Plaintiffs’ allegations of increased risk of infection and future harm establish an injury in fact. Further, Plaintiffs allege that their increased risk is directly attributable to Defendants’ actions and inactions, and clearly a judgment in Plaintiffs’ favor requiring Defendants to increase their vigilance and/or release members of the Medically Vulnerable Subclass to home confinement will redress Plaintiffs’ concerns. Standing is satisfied. Cibolo Waste, Inc., 718 F.3d at 473.
ii. Exhaustion Next, Defendants contend that Plaintiffs’ claims must be dismissed for having failed to exhaust administrative remedies. In the same breath, however, Defendants concede that “failure to exhaust administrative remedies is an affirmative defense
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requiring the submission of evidence,” (Doc. 92-1 at 2), and indicate that they shall “fil[e] a motion for summary judgment separate from this Motion to Dismiss asserting that Plaintiffs’ claims should be dismissed because they failed to exhaust the available administrative remedies prior to filing suit.” (Id.). In light of Defendants’ admissions, the Court will reserve ruling on the issue of whether Plaintiffs adequately exhausted their administrative remedies prior to filing this lawsuit.
iii. Availability of Habeas Relief Under 28 U.S.C. § 2241 Finally, Defendants contend that the Court lacks jurisdiction to consider Plaintiffs’ request for immediate release under 28 U.S.C. § 2241, because a writ of habeas corpus is available only for claims concerning unconstitutional cause of confinement, not unconstitutional conditions of confinement. Defendants’ argument is rooted in the Court’s July 3 Order, which, in relevant part, determined that Plaintiffs’ complaints implicate the conditions at EBRPP, not the cause for their detention. (Doc. 90 at 8). On this basis, the Court further determined that Plaintiffs were unlikely to succeed on the merits of their claims because the U.S. Fifth Circuit Court of Appeals’ has instructed that “habeas is not available to review questions unrelated to the cause of detention.” Pierre v. United States, 525 F.2d 933, 935–36 (5th Cir. 1976) (denying writ of habeas corpus to refugees seeking to vacate administrative Orders of Exclusion and to force the Director of the Immigration Service to grant employment authorization because, “[s]imply stated, habeas is not available to review questions unrelated to the cause of detention. Its sole function is to grant relief from unlawful imprisonment or custody and it cannot be used properly for any other purpose.”).
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After the Court entered its July 3 Order, the Fifth Circuit issued its decision in Cheek v. Warden of Federal Medical Center, which specifically held that a prisoner’s “request for release to home confinement in the context of a global pandemic [is] properly brought as an application for a writ of habeas corpus under Section 2241 because a favorable ruling from the district court [will] accelerate his release.” No. 20-10712, 2020 WL 6938364, at *2 (5th Cir. Nov. 24, 2020). The Cheek decision applies on all fours to the facts presented here, and clarifies that the Court does, in fact, have subject matter jurisdiction over Plaintiffs’ habeas claims. As such, the Court may proceed to address the merits of Plaintiffs’ claims.
B. Merits i. Standard
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the legal standard set forth in Rule 8, which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states a plausible claim for relief [is] … a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.
In reviewing a Rule 12(b)(6) motion, the Court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm Mutual Auto Ins. Co., 509 F.3d 673, 675 (5th Cir.
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2007). Importantly, however, “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quotation marks omitted).
ii. Discussion As stated, Plaintiffs allege two distinct constitutional violations: (1) Defendants’ failures to adequately protect prisoners against the COVID-19 pandemic have denied members of the Post-Conviction Subclass their Eighth Amendment right to be free from cruel and unusual punishment (Count II); and (2) the same failures have denied members of the Pretrial Subclass their Fourteenth Amendment right to due process (Count I). The Court addresses each claim in turn.
a. Post-Conviction Plaintiffs Following conviction, the Eighth Amendment requires prison officials to provide “humane conditions of confinement” with due regard for inmate health and safety. Valentine v. Collier, 978 F.3d 154, 162–63 (5th Cir. 2020) (hereinafter “Valentine II”) (quoting Farmer v. Brennan, 511 U.S. 825, 832, 837 (1994)). To show a violation, inmates must prove that they were exposed “to a substantial risk of serious harm” and “that prison officials acted or failed to act with deliberate indifference to that risk.” Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018) (quoting Gobert v. Caldwell, 463 F.3d 339, 345–46 (5th Cir. 2006)). The presence of a substantial risk is an objective inquiry. Petzold v. Rostollan, 946 F.3d 242, 249 (5th Cir. 2019). Deliberate indifference, however, is subjective; it requires a showing that prison officials had actual knowledge of a risk and disregarded it. Id. … “Deliberate indifference is an extremely high standard to meet.” Domino v. TDCJ, 239 F.3d 752, 756 (5th Cir. 2001). Valentine II, 978 F.3d at 162–63.
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For present purposes, the Court finds that Plaintiffs’ allegations establish that they have been exposed to a substantial risk of serious harm, thus satisfying the objective prong of the analysis. Indeed, the Fifth Circuit has now repeatedly affirmed the severe risk of harm that COVID-19 presents to prisoners, particularly prisoners whose age or underlying health condition renders them more susceptible to serious illness or death from the virus. Valentine v. Collier, 956 F.3d 797, 801 (5th Cir. 2020) (hereinafter “Valentine I”) (“There is no doubt that infectious diseases generally and COVID-19 specifically can pose a risk of serious or fatal harm to prison inmates.”); Marlowe v. LeBlanc, 810 F. App'x 302, 305 (5th Cir. 2020) (“We do not question that COVID-19 presents a risk of serious harm to those confined in prisons, nor that Plaintiff, as a diabetic, is particularly vulnerable to the virus's effects.”); see also Valentine II, 978 F.3d at 163 (“We share the district court's alarm at the toll of the virus.”).
Nonetheless, Plaintiffs’ Eighth Amendment claims must still fail because they cannot satisfy the subjective prong of the analysis. That is, they cannot show that Defendants have acted or failed to act with deliberate indifference to COVID-19. In fact, Plaintiffs’ own allegations confirm the opposite: Defendants have implemented multiple measures to safeguard prisoners against the virus, to include closing the prison to outside visitors; quarantining the general population; establishing isolation wings for prisoners testing positive for COVID-19; conducting temperature checks; supplying face coverings, soap, and cleaning supplies to prisoners; and providing personal protective equipment to prison staff. As indicated in the Court’s July 3
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Order, Plaintiffs obviously take issue with the efficacy of Defendants’ efforts, and
contend that more could be done, but the law is clear that “‘mere “disagreement’ with
[prison officials’] medical decisions does not establish deliberate indifference.”
Valentine I, 956 F.3d at 803.
Based on Plaintiffs’ allegations detailing measures Defendants have
implemented to abate the risks of COVID-19, and guided by the Fifth Circuit’s
COVID-19 jurisprudence, the Court is compelled to conclude that Defendants have
responded reasonably to the virus, and, accordingly, that Plaintiffs cannot show that
they acted with deliberate indifference to its threat. Cf. Valentine II, 978 F.3d at 164
(determining that plaintiffs were unlikely to establish deliberate indifference where
prison officials took “affirmative steps … to contain the virus”); Marlowe, 810 F. App'x
at 305 (same); Valentine I, 956 F.3d at 802 (same). Accordingly, Plaintiffs’ Eighth
Amendment claims must fail.2
2 The Court pauses to specifically address Plaintiffs’ allegations regarding Defendants’ decision to establish temporary COVID-19 isolation wings in previously condemned portions of EBRPP. (See Doc. 4 at ¶ 109; Doc. 99 at 24). Certainly, forcing detainees to live in condemned quarters raises legitimate concerns and creates the possibility of a constitutional violation. See Gates v. Cook, 376 F.3d 323, 338 (5th Cir. 2004) (“This court has previously held that filthy cell conditions may constitute an Eighth Amendment violation.” (citing authorities)). Here, however, even these allegations cannot save Plaintiffs’ claims from dismissal for two reasons.
First, Plaintiffs allege that a detainee’s assignment to the condemned quarantine lines is temporary, lasting no longer than it takes to receive two successive negative COVID-19 tests. The Supreme Court has instructed that temporary confinement to unsanitary quarters alone does not necessarily establish the objective element of conditions of confinement claim. See Davis v. Scott, 157 F.3d 1003, 1006 (5th Cir. 1998) (“The Supreme Court has noted that ‘the length of confinement cannot be ignored. ... A filthy, overcrowded cell ... might be tolerable for a few days and intolerably cruel for weeks or months.” (quoting Hutto v. Finney, 437 U.S. 678, 686–87 (1978)).
Second, even if the risks posed by temporarily housing inmates in a condemned portion of the prison are objectively intolerable, the Court must still look to Defendants’ motivations for placing detainees there. Burleson v. Texas Dep't of Criminal Justice, 393 F.3d
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b. Pre-Trial Detainee Plaintiffs Whereas the Eighth Amendment protects the rights of convicted prisoners, “[t]he constitutional rights of a pretrial detainee flow from both the procedural and substantive due process guarantees of the Fourteenth Amendment.” Cleveland v. Gautreaux, 198 F. Supp. 3d 717, 733 (M.D. La. 2016) (deGravelles, J.) (citing Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999)). “The Fourteenth Amendment requires that state officials not disregard the ‘basic human needs’ of pretrial detainees, including medical care.” Estate of Henson v. Krajca, 440 F. App'x 341, 343 (5th Cir. 2011) (quoting Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996) (en banc)). “[C]onstitutional challenges by pretrial detainees may be brought under two alternative theories: as an attack on a ‘condition of confinement’ or as an ‘episodic act or omission.’” Cleveland, 198 F. Supp. 3d at 733 (quoting Shepherd v. Dallas Cnty., 591 F.3d 445, 452 (5th Cir. 2009)). Here, Plaintiffs proceed under both theories. (Doc. 99 at 22 (“Plaintiffs challenge their unconstitutional treatment under both a conditions-of-confinement theory and an episodic-act-or-omission theory.”)). Regardless which theory Plaintiffs choose, however, in order to prevail they must
577, 589 (5th Cir. 2004) (“In order to establish an Eighth Amendment conditions of confinement claim, Burleson would have to establish ‘first, that the deprivation alleged was sufficiently serious (i.e., an official's act or omission must have resulted in the denial of ‘the minimal civilized measure of life's necessities'); and second, that the prison official possessed a sufficiently culpable state of mind.’” (quoting Herman v. Holiday, 238 F.3d 660, 664 (5th Cir. 2001)). Here, as discussed, Plaintiffs’ allegations establish that Defendants’ motivation is to create a quarantined space for infected detainees, thus reducing the risk of spread to other detainees. In other words, again, Defendants are not deliberately indifferent to the risks posed by COVID-19; rather, they are expressly motivated by a desire to abate these risks. As such, Plaintiffs are unable to establish deliberate indifference.
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show that Defendants acted with deliberate indifference, or its “functional equivalent.” See Hare, 74 F.3d at 636 (an “episodic act or omission” claim requires a pretrial detainee plaintiff to prove that prison officials “acted or failed to act with subjective deliberate indifference to the detainee's rights”); Duvall v. Dallas Cty., Tex., 631 F.3d 203, 207 (5th Cir. 2011) (“As this court recognized while sitting en banc, ‘the reasonable-relationship test employed in conditions cases is functionally equivalent to the deliberate indifference standard employed in episodic cases.’” (quoting Scott v. Moore, 114 F.3d 51, 54 (5th Cir. 1997) (en banc)).
Plaintiffs’ allegations underlying their Eighth Amendment claims are the same as their allegations underlying their Fourteenth Amendment claims. For reasons previously explained, Plaintiffs own allegations defeat their assertions of Defendants’ subjective deliberate indifference for purposes of their Eighth Amendment claims; the same analysis applies equally to Plaintiffs’ Fourteenth Amendment claims. See Hare, 74 F.3d at 648 (“Though Farmer dealt specifically with a prison official's duty under the Eighth Amendment to provide a convicted inmate with humane conditions of confinement, we conclude that its subjective definition of deliberate indifference provides the appropriate standard for measuring the duty owed to pretrial detainees under the Due Process Clause.”). Thus, again, Plaintiffs’ claims must fail.
C. Amendment When a complaint fails to state a claim, the Court should generally give the plaintiff a chance to amend under Rule 15(a) before dismissing the action with prejudice, unless it is clear that to do so would be futile. See Great Plains Trust Co. v.
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Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.2002) (“district courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable”); see also Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005) (“Rule 15(a) requires a trial court to grant leave to amend ‘freely,’ and the language of this rule ‘evinces a bias in favor of granting leave to amend.” (internal quotations omitted)). Here, the Court determines that amendment would be futile in light of Plaintiffs’ allegations defeating their assertions of Defendants’ subjective deliberate indifference. The Court will dismiss Plaintiffs’ action with prejudice, without granting leave to amend.
IV. CONCLUSION Accordingly, IT IS ORDERED that Defendants’ Motions to Dismiss (Docs. 92, 104) are
GRANTED, and that the above-captioned action is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiffs’ Motion For Class Certification (Doc. 8) is TERMINATED.
The Court shall issue a Final Judgment separately. Baton Rouge, Louisiana, this 4th day of February, 2021
_____________________________________ JUDGE BRIAN A. JACKSON UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
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