Case 3:05-cv-01013-DMS-PCL Document 36 Filed 01/24/2007 Page 1 of 11

1 Gouri Bhat (pro hac vice pending) Tom-Tsvi M. Jawetz (pro hac vice pending)
2 David C. Fathi* (pro hac vice pending) American Civil Liberties Union Foundation
3 National Prison Project 915 15th Street NW, 7th Floor
4 Washington, DC 20005 Tel: (202) 548-6611
5 *Not admitted in DC; practice limited to federal courts

6 Judy Rabinovitz (pro hac vice pending) American Civil Liberties Union Foundation
7 Immigrants’ Rights Project 125 Broad Street, 18th Floor
8 New York, NY 10004 Tel: (212) 549-2618
9 Anthony M. Stiegler (SBN 126414)
10 Mary Kathryn Kelley (SBN 170259) Cooley Godward Kronish LLP
11 4401 Eastgate Mall San Diego, CA 92121-1909
12 Tel: (858) 550-6035

13 Counsel for Plaintiff [Additional Counsel Appear on Signature Page]
14

15

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

16

ISAAC KIGONDU KINITI,

) Case No. 3:05-cv-01013-DMS-PCL

17

)

Plaintiff,

) MEMORANDUM OF POINTS AND

18

) AUTHORITIES IN SUPPORT OF

v.

) MOTION FOR CLASS CERTIFICATION

19

) UNDER THE [PROPOSED] SECOND

BARBARA WAGNER, et al.,

) AMENDED COMPLAINT

20

)

Defendants.

)

21

)

22

Introduction

23

This action began in May 2005 with the filing of a pro se Complaint by plaintiff Isaac

24 Kigondu Kiniti. In his original Complaint, as in his First Amended Complaint, Mr. Kiniti alleges

25 violations of his constitutional rights stemming from, inter alia, the severe and chronic

26 overcrowding of immigration detainees at San Diego Correctional Facility (SDCF). On January

27 24, 2007, plaintiff Kiniti, by and through his attorneys, filed under separate cover a Motion for

28 Leave to Amend the First Amended Complaint and Add Parties. Plaintiff’s Proposed Second

1

Case 3:05-cv-01013-DMS-PCL Document 36 Filed 01/24/2007 Page 2 of 11

1 Amended Complaint, attached to the aforementioned motion for leave to amend, contains class

2 action allegations on behalf of the class of “all immigration detainees in ICE custody who are

3 now or in the future will be confined at San Diego Correctional Facility” (hereinafter the “SDCF

4 Class”), and seeks only injunctive and declaratory relief.

5

In the Proposed Second Amended Complaint, the putative class alleges that more than

6 two-thirds of the detainees at SDCF are currently affected by the practice of triple-celling (i.e.,

7 housing three detainees in a small cell designed for two), that still more detainees are housed in

8 makeshift beds in the common dayroom space, and that all detainees are at risk of future harm

9 from this chronic and severe overcrowding. Putative representative plaintiffs further allege that

10 the long-standing and pervasive overcrowding at SDCF:

11

is the root cause of numerous unsafe and intolerable conditions that

afflict detainees at the facility, including: increased violence, tension,

12

discomfort, stress, mental suffering, psychiatric problems, and

exposure to respiratory and other infections; diminished access to

13

medical, mental health and dental services; diminished access to

exercise and dayroom space and other facility services; poor

14

sanitation and decreased ability to maintain personal hygiene;

overburdened and unsanitary shower and toilet facilities, resulting in

15

more frequent plumbing malfunctions and exposure to urine and

feces; and the loss of personal dignity due to all of the above.

16

Proposed Second Amended Complaint, ¶ 3.

17

In connection with the class action allegations contained in the Proposed Second

18

Amended Complaint, which is to be filed with the Court and served on all defendants should the

19

Court grant plaintiff’s motion for leave to amend, plaintiff hereby moves for certification of the

20

SDCF Class and an order appointing the undersigned counsel to represent the certified class,

21

pursuant to Rule 23(g) of the Federal Rules of Civil Procedure.

22

For the reasons set forth below, plaintiff’s Motion for Class Certification Under the

23

[Proposed] Second Amended Complaint should be granted, and an order should be issued

24

appointing the undersigned as class counsel.

25

I. This Case is Properly Maintained as a Class Action.

26

A. Background Principles Applicable to Class Certification

27

In order for a class to be certified, the following requirements must be satisfied:

28

(1) the class is so numerous that joinder of all members is

2

05cv01013

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1

impracticable, (2) there are questions of law or fact common to the

class, (3) the claims or defenses of the representative parties are

2

typical of the claims or defenses of the class, and (4) the

representative parties will fairly and adequately protect the interests

3

of the class.

4 Fed. R. Civ. P. 23(a). In addition, the class must meet the requirements of one of the three

5 subsections set forth in Rule 23(b). Here, plaintiff Kiniti and putative named plaintiffs Jose

6 Morales-Vargas, Sylvester Owino, Hernan Ismael Delgado and Any Castro seek certification

7 pursuant to Rule 23(b)(2).

8

Initial determination of class certification is solely a procedural issue that must not be

9 based on the merits of the case; plaintiff’s burden is limited to demonstrating that the proposed

10 class satisfies the requirements of Rule 23. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178

11 (1974). In ruling on the motion for class certification, the Court must take the substantive

12 allegations of the Proposed Second Amended Complaint as true. Blackie v. Barrack, 524 F.2d

13 891, 901 n.17 (9th Cir. 1975).

14

B. The Rule 23(a) Prerequisites to Class Certification Have Been Satisfied.

15

1. Numerosity and Impracticality of Joinder

16

The first prerequisite of Rule 23(a) is that “the class [be] so numerous that joinder of all

17 members is impracticable.” Fed. R. Civ. P. 23(a)(1). While there is no ironclad rule as to when

18 the size of the proposed class renders joinder impracticable, sheer numerosity is generally

19 sufficient. Jordan v. County of Los Angeles, 669 F.2d 1311, 1319 (9th Cir. 1982), vacated on

20 other grounds, 459 U.S. 810 (1982), on remand, 713 F.2d 504 (9th Cir. 1983); 5 Moore’s

21 Federal Practice, §23.22[3][a] (Matthew Bender, 3d ed.) (hereinafter “Moore’s Federal

22 Practice”) (noting that classes comprising more than 40 individuals are generally found to satisfy

23 the impracticality of joinder requirement). Where, as in this case, the proposed class exceeds

24 1000 immigration detainees, joinder is clearly impracticable.

25

Joinder of all class members is further complicated by the nature of immigration

26 detention, which is often quite fluid. The size and make-up of the proposed class—which

27 includes immigration detainees who are not now, but will in the future be, detained at

28 SDCF—change daily, as additional detainees are brought to SDCF to be held in the custody of

3

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1 the Department of Homeland Security, Immigration and Customs Enforcement, while other class

2 members are released from detention, removed from the country, or transferred to other detention

3 facilities. The rotating membership of the proposed class is an additional basis for finding

4 joinder impracticable. See Andre H. v. Ambach, 104 F.R.D. 606, 611 (S.D.N.Y. 1985) (“The fact

5 that the [detention center] population . . . is constantly revolving establishes sufficient numerosity

6 to make joinder of the class members impracticable.”). The inclusion in the class of future

7 detainees, whose identities cannot possibly be ascertained at this time, provides still further basis

8 for concluding that joinder is impracticable. See, e.g., Jones v. Diamond, 519 F.2d 1090, 1100

9 (5th Cir. 1975); Skinner v. Uphoff, 209 F.R.D. 484, 488 (D. Wyo. 2002) (finding certification

10 appropriate for class of current and future prisoners seeking injunctive relief; “[a]s members in

11 futuro, they are necessarily unidentifiable, and therefore joinder is clearly impracticable”);

12 Moore’s Federal Practice, §23.22[7].

13

Finally, courts typically find joinder to be impracticable if it is reasonable to conclude that

14 the class members would be unable to file individual actions to vindicate their rights. See, e.g.,

15 Leyva v. Buley, 125 F.R.D. 512, 515 (E.D. Wash. 1989) (certifying class of migrant workers and

16 citing class members’ lack of sophistication, limited knowledge of the legal system, limited or

17 non-existent English skills, and fear of retaliation). Such is the case with the purported class

18 members, who have even less access to the legal system than pre-trial criminal detainees;

19 immigration detainees appearing in Immigration Court and before the Board of Immigration

20 Appeals have only a statutory “privilege of being represented (at no expense to the

21 Government).” 8 U.S.C. § 1362.

22

2. Commonality

23

The second prerequisite of Rule 23(a) is that there be a single question of law or fact

24 common to members of the class. Blackie v. Barrack, 524 F.2d 891, 904 (9th Cir. 1975) (“all

25 that is required is a single issue of law or fact”); see also Marisol A. v. Giuliani, 126 F.3d 372,

26 376 (2d Cir. 1997). The Proposed Second Amended Complaint in this action identifies multiple

27 questions of both law and fact common to the entire class.

28

These common questions include, but are not limited to: whether defendants have failed

4

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1 to provide adequate shelter, reasonable safety, and basic human needs to plaintiffs as a result of

2 overcrowding at SDCF; whether plaintiffs’ conditions of confinement subject them to

3 unreasonable risk of violence, injury, illness and mental suffering; whether plaintiffs’ conditions

4 of confinement are effectively punitive; whether defendants’ conduct violates the Fifth

5 Amendment; and whether defendants’ conduct shows a pattern of officially sanctioned behavior

6 that violates plaintiffs’ rights and establishes a credible threat of future injury.

7

The commonality prerequisite is therefore satisfied.1

8

3. Typicality

9

The third prerequisite of Rule 23(a) is that the putative named plaintiffs’ claims be typical

10 of those of the class. The purpose of this requirement is to assure that the interests of the named

11 plaintiffs align with the interests of the class. Weinberger v. Thornton, 114 F.R.D. 599, 603

12 (S.D. Cal. 1986). This prerequisite is viewed under the rule’s “permissive standards,” such that

13 “representative claims are ‘typical’ if they are reasonably co-extensive with those of absent class

14 members; they need not be substantially identical.” Hanlon v. Chrysler Corp., 150 F.3d 1011,

15 1019 (9th Cir. 1998). See also Penn v. San Juan Hospital, Inc., 528 F.2d 1181, 1189 (10th Cir.

16 1975) (“the typicality requirement is ordinarily not argued.”).

17

The typicality requirement is satisfied “[i]f the class representative’s claims arise from the

18 same events, practice, or conduct, and are based on the same legal theory as those of other class

19 members.” Moore’s Federal Practice, §23.24[2]. The fundamental inquiry for typicality is

20 whether all members of the class would benefit in some way from a judgment favorable to the

21

22 1 Of course, factual differences may exist among class members with respect to the
23 precise way in which each individual is affected by the institutional practice or condition. Such differences do not defeat commonality. See, e.g., Marisol A, 126 F.3d
24 at 377 (“the unique circumstances of each [plaintiff] do not compromise the common
question of whether . . . defendants have injured all class members by failing to meet 25 their federal and state law obligations”); Milonas v. Williams, 691 F.2d 931, 938 (10th
26 Cir. 1982) (“[f]actual differences in the claims of class members should not result in a denial of class certification where common questions of law exist”); see also Bradley v.
27 Harrelson, 151 F.R.D. 422, 426 (M.D. Ala. 1993) (concluding that factual differences
between class members as to the nature and severity of their mental illness do not 28 preclude finding of commonality in a class action challenging the delivery of mental
health services to Alabama prisoners).

5

05cv01013

Case 3:05-cv-01013-DMS-PCL Document 36 Filed 01/24/2007 Page 6 of 11

1 plaintiffs. See Ellis v. Naval Air Rework Facility, 404 F. Supp. 391, 396 (N.D. Cal. 1975).

2

The putative named plaintiffs are immigration detainees at SDCF who have personally

3 experienced the consequences of the defendants’ policies, practices, acts and omissions

4 pertaining to the chronic and severe overcrowding of SDCF. With the exception of plaintiff

5 Isaac Kigondu Kiniti, each of the other putative named plaintiffs is currently triple-celled.

6 Plaintiff Jose Morales-Vargas has been housed at SDCF since June 16, 2006, and has been

7 continuously triple-celled with the exception of a brief 11-day period when he was housed in

8 segregation. Proposed Second Amended Complaint, ¶ 14. Plaintiff Sylvester Owino arrived at

9 SDCF on November 8, 2005. Id. at ¶ 15. He has been triple-celled for most of his detention at

10 SDCF and without interruption since June 11, 2006. Id. at ¶ 16. Plaintiff Hernan Ismael

11 Delgado is also currently triple-celled. Id. at ¶ 18. Delgado has been in ICE detention since

12 February 2003, and has been housed at SDCF since October 8, 2004. Id. Delgado has been

13 triple-celled for the majority of his time at SDCF, and was forced to sleep on the floor in a plastic

14 “boat” containing a thin sleeping mat for the first six months of his detention at SDCF. Id.

15 Plaintiff Any Castro has been detained at SDCF since September 2006, and has been triple-celled

16 for the entirety of her stay in detention. Id. at ¶ 20. Like plaintiff Delgado, plaintiff Castro was

17 forced to sleep on the floor of her cell in a “boat” for the first two months of her time at SDCF.

18 Id. Although plaintiff Kiniti is not now triple-celled, Kiniti has been triple-celled at various

19 points during his stay in SDCF and remains at constant risk of once again being triple-celled, or

20 suffering the consequences of his refusal to be triple-celled. Id. at ¶ 12. In early 2005, Kiniti

21 complained to auditors from the Department of Homeland Security Office of Inspector General

22 (OIG) about the problem of overcrowding and triple-celling at SDCF, and personally met with a

23 senior auditor for the OIG during her visit to the facility. Id. Kiniti subsequently filed the instant

24 lawsuit arguing, inter alia, that triple-celling and overcrowding at SDCF are unconstitutional.

25

The serious harm suffered by the putative named plaintiffs as a result of the chronic and

26 severe overcrowding at SDCF is typical of the type of harm experienced by other class members.

27 This harm includes not only the concrete harm of being triple-celled—a harm that is itself

28 experienced by two-thirds of the immigration detainees now held at SDCF—but also all of the

6

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Case 3:05-cv-01013-DMS-PCL Document 36 Filed 01/24/2007 Page 7 of 11

1 other dangers and indignities that accompany this overcrowding. Pervasive overcrowding at

2 SDCF increases the tension between detainees at the facility, who are forced to spend significant

3 periods of time confined in cells that are designed to house two, not three, people. Plaintiff

4 Morales-Vargas has had to defend himself in at least five incidents of detainee-on-detainee

5 violence that went unnoticed or ignored by security staff, and plaintiff Owino has witnessed

6 numerous fights among detainees that have transpired without the intervention of security staff.

7 Id. at ¶ 72. When plaintiff Castro was first brought to SDCF, she spent two months sleeping on

8 the floor of her cell in a “boat.” Id. at ¶ 20.

9

All detainees are also at heightened risk of illness as a result of the severe and chronic

10 overcrowding at SDCF. Id. at ¶¶ 80-82. Detainees living in severely overcrowded conditions are

11 at greater risk for both methicillin resistant staphylococcus aureus (MRSA) and multidrug

12 resistant tuberculosis (MDRTB). MRSA is a highly contagious bacteria known to spread rapidly

13 in institutional settings where poor sanitation and close confinement create a greater likelihood of

14 transmission. MDRTB is a potentially fatal air-borne disease that can spread in overcrowded

15 conditions with poor air circulation.

16

Plaintiff’s counsel have interviewed and corresponded with numerous putative class

17 members who are suffering the same constitutional injury as the putative named plaintiffs

18 because of the overcrowding of SDCF. Counsel have also interviewed and corresponded with

19 individuals who are not now detained at SDCF, but were detained at that facility within the past

20 several months, who similarly experienced constitutional deprivations as a result of the

21 overcrowding. Some of the allegations contained in the Proposed Second Amended Complaint

22 pertain to the experiences of individuals who, though they are not putative representative

23 plaintiffs, are members of the putative SDCF Class. See, e.g., id. at ¶¶ 77, 83, 84. The claims of

24 the putative named plaintiffs are typical of those of the class; they are “part of the class and

25 possess the same interest and suffer the same injury as the class members.” East Texas Motor

26 Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (internal quotation marks omitted).

27

28

7

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1

4. Adequacy of Representation

2

The fourth prerequisite of Rule 23(a) is that “the representative parties will fairly and

3 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Adequacy of

4 representation is a two-part test: (i) counsel for the representative parties are qualified and able to

5 prosecute the action vigorously; and (ii) there is no conflict or antagonism between the named

6 plaintiffs’ interests and the remainder of the class. Lerwill v. Inflight Motion Pictures, Inc., 582

7 F.2d 507, 522 (9th Cir. 1978).

8

Plaintiff class members are represented by the National Prison Project of the American

9 Civil Liberties Union Foundation (NPP), the Immigrants’ Rights Project of the American Civil

10 Liberties Union Foundation (IRP), the American Civil Liberties Union Foundation of San Diego

11 & Imperial Counties (ACLU of San Diego), and the law firm of Cooley Godward Kronish LLP

12 (CGK). NPP has extensive experience litigating class actions regarding conditions inside prisons

13 and jails, and IRP has unique expertise pertaining to the detention of individuals by ICE. The

14 ACLU of San Diego, through its legal director, and CGK each has significant experience in civil

15 rights and immigrants’ rights litigation. Counsel are therefore experienced in class action, civil

16 rights, immigrants’ rights, and conditions of confinement litigation.

17

There is also no conflict between the putative named plaintiffs’ interests and the

18 remainder of the class. The putative named plaintiffs have no interests separate from those of a

19 putative SDCF Class, and seek no relief other than the classwide injunctive and declaratory relief 20 sought on behalf of the class.2

21

22

23 2 In addition to seeking injunctive relief in his Complaint and First Amended Complaint,
24 plaintiff Kiniti also sought damages for the injury he personally suffered as a result of
Defendants’ unconstitutional actions. In the Proposed Second Amended Complaint, Mr. 25 Kiniti has withdrawn his request for damages and instead is pursuing only injunctive and
26 declaratory relief as a representative of the putative class. However, even if Mr. Kiniti were to continue to seek damages in this action, that would not create a conflict of
27 interest preventing class certification. See, e.g., Probe v. State Teachers’ Retirement
System, 780 F.2d 776, 780-81 (9th Cir. 1986). Here, as in Probe, any request for money 28 damages by Mr. Kiniti would be merely incidental to the primary claims common to all
named plaintiffs and the class as a whole regarding injunctive relief.

8

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1

C. Class Certification is Appropriate Pursuant to Rule 23(b)(2).

2

The final requirement for class certification is satisfaction of at least one of the

3 subsections of Rule 23(b). Certification is appropriate pursuant to Rule 23(b)(2) where:

4

the party opposing the class has acted or refused to act on grounds

generally applicable to the class, thereby making appropriate final

5

injunctive relief or corresponding declaratory relief with respect to

the class as a whole.

6

Fed. R. Civ. P. 23(b)(2). Courts have repeatedly held that civil rights class actions are the

7

paradigmatic 23(b)(2) suits, “for they seek classwide structural relief that would clearly redound

8

equally to the benefit of each class member.” Marcera v. Chinlund, 595 F.2d 1231, 1240 (2d

9

Cir. 1979), vacated on other grounds sub nom., Lombard v. Marcera, 442 U.S. 915 (1979); see

10

also Johnson v. General Motors Corp., 598 F.2d 432, 435 (5th Cir. 1979); Elliott v. Weinberger,

11

564 F.2d 1219, 1229 (9th Cir. 1977) (action to enjoin allegedly unconstitutional government

12

conduct is “the classic type of action envisioned by the drafters of Rule 23 to be brought under

13

subdivision (b)(2)”), aff’d in pertinent part sub nom., Califano v. Yamasaki, 442 U.S. 682, 701

14

(1979)). As stated in the leading treatise on class actions:

15

Rule 23(b)(2) was drafted specifically to facilitate relief in civil rights

16

suits. Most class actions in the constitutional and civil rights areas

seek primarily declaratory and injunctive relief on behalf of the class

17

and therefore readily satisfy Rule 23(b)(2) class action criteria.

18 A. Conte & H. Newberg, Newberg on Class Actions § 25.20 (4th ed. 2002).

19

Injunctive challenges to prison conditions routinely proceed as class actions, and are

20 typically maintained under subdivision (b)(2). See, e.g., Jones’El v. Berge, 374 F.3d 541 (7th

21 Cir. 2004); Hoptowit v. Ray, 682 F.2d 1237, 1245 (9th Cir. 1982) (class certified under Rule

22 23(b)(2)); Diamond, 519 F.2d at 1097, 1099-1100 (encouraging the liberal application of Rule

23 23, and in particular subdivision (b)(2), in civil rights actions, and observing that “[r]ealistically,

24 class actions are the only practicable judicial mechanism for the cleansing reformation and

25 purification of these penal institutions.”).

26

In this case, the defendants’ unconstitutional policies, practices, acts and omissions

27 pertaining to overcrowding are imposed uniformly on all class members, and declaratory and

28 injunctive relief will redound to the benefit of the class as a whole. Accordingly, Rule 23(b)(2) is

9

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Case 3:05-cv-01013-DMS-PCL Document 36 Filed 01/24/2007 Page 10 of 11

1 satisfied.

2

Conclusion

3

For the reasons set forth above, Plaintiff’s Motion for Class Certification Under the

4 [Proposed] Second Amended Complaint should be granted, and plaintiff’s counsel should be

5 appointed to represent the certified class, pursuant to Rule 23(g) of the Federal Rules of Civil

6 Procedure.

7

8 Dated: January 24, 2007

Respectfully submitted,

9

By: s/ David Blair-Loy

10

David Blair-Loy (SBN 229235)

11

American Civil Liberties Union Foundation

of San Diego & Imperial Counties

12

P.O. Box 87131

San Diego, CA 92138-7131

13

Tel: (619) 232-2121

Fax: (619) 232-0036

14

Email: dblairloy@aclusandiego.org

15

Gouri Bhat (pro hac vice pending)

Tom-Tsvi M. Jawetz (pro hac vice pending)

16

David C. Fathi* (pro hac vice pending)

American Civil Liberties Union Foundation

17

National Prison Project

915 15th Street NW, 7th Floor

18

Washington, DC 20005

Tel: (202) 548-6611

19

Fax: (202) 393-4931

Email: gbhat@npp-aclu.org

20

*Not admitted in DC; practice limited to federal courts

21

Judy Rabinovitz (pro hac vice pending)

American Civil Liberties Union Foundation

22

Immigrants’ Rights Project

125 Broad Street, 18th Floor

23

New York, NY 10004

Tel: (212) 549-2618

24

Fax: (212) 549-2654

Email: jrabinovitz@aclu.org

25

Mónica M. Ramírez (SBN 234893)

26

American Civil Liberties Union Foundation

Immigrants’ Rights Project

27

39 Drumm Street

San Francisco, CA 94111

28

Tel: (415) 343-0778

Fax: (415) 395-0950

10

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1

Email: mramirez@aclu.org

2

Anthony M. Stiegler (SBN 126414)

Mary Kathryn Kelley (SBN 170259)

3

Cooley Godward Kronish LLP

4401 Eastgate Mall

4

San Diego, CA 92121-1909

Tel: (858) 550-6035

5

Fax: (858) 550-6420

Email: astiegler@cooley.com

6

Counsel for Plaintiff

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

05cv01013

 
 Case 3:05-cv-01013-DMS-PCL Document 35 Filed 01/24/2007 Page 1 of 30

1 Gouri Bhat (pro hac vice pending) Tom-Tsvi M. Jawetz (pro hac vice pending)
2 David C. Fathi* (pro hac vice pending) American Civil Liberties Union Foundation
3 National Prison Project 915 15th Street NW, 7th Floor
4 Washington, DC 20005 Tel: (202) 548-6611
5 *Not admitted in DC; practice limited to federal courts

6 Judy Rabinovitz (pro hac vice pending) American Civil Liberties Union Foundation
7 Immigrants’ Rights Project 125 Broad Street, 18th Floor
8 New York, NY 10004 Tel: (212) 549-2618
9 Anthony M. Stiegler (SBN 126414)
10 Mary Kathryn Kelley (SBN 170259) Cooley Godward Kronish LLP
11 4401 Eastgate Mall San Diego, CA 92121-1909
12 Tel: (858) 550-6035

13 Counsel for Plaintiffs

[Additional Counsel Appear on Signature Page]

14

UNITED STATES DISTRICT COURT

15

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

16 ISAAC KIGONDU KINITI; JOSE

)

MORALES-VARGAS; SYLVESTER

)

17 OWINO; HERNAN ISMAEL DELGADO; )

and ANY CASTRO, on behalf of

)

18 themselves and all others similarly

)

situated,

)

19

)

Plaintiffs,

)

20

)

v.

)

21

)

JULIE L. MYERS, Assistant Secretary, U.S. )

22 Immigration and Customs Enforcement

)

(ICE); JOHN P. TORRES, Director, Office )

23 of Detention and Removal Operations, ICE; )

RON SMITH, Director, San Diego Field )

24 Office, ICE; ANTHONY CERONE,

)

Officer-in-Charge at San Diego Correctional )

25 Facility (SDCF), ICE; CORRECTIONS

)

CORPORATION OF AMERICA, INC.

)

26 (CCA); JOE EASTERLING, SDCF

)

Warden, CCA; CHARLES HOWARD,

)

27 SDCF Assistant Warden, CCA,

)

)

28

Defendants.

)

)

Case No. 3:05-cv-01013-DMS-PCL
[PROPOSED] SECOND AMENDED COMPLAINT FOR CLASSWIDE DECLARATORY AND INJUNCTIVE RELIEF

1

Case 3:05-cv-01013-DMS-PCL Document 35 Filed 01/24/2007 Page 2 of 30

1

INTRODUCTION

2

1. Plaintiffs are civil immigration detainees in the custody of U.S. Immigration and

3 Customs Enforcement (ICE), part of the U.S. Department of Homeland Security (DHS). Plaintiffs

4 are housed at San Diego Correctional Facility (SDCF), a contract detention facility in Otay Mesa,

5 California operated by Corrections Corporation of America, Inc. (CCA). CCA is the largest private,

6 for-profit provider of detention and corrections services in the nation. Pursuant to a contractual

7 agreement with ICE, CCA houses approximately 1000 male and female immigration detainees at

8 SDCF for periods of time ranging from several weeks to several years. Both ICE and CCA staff

9 work on-site at SDCF and cooperate fully in the assignment of detainees to housing units.

10

2. SDCF is chronically and dangerously overcrowded. Currently, approximately 675

11 male and female detainees at SDCF—more than two-thirds of the immigration detainee

12 population—are housed in pods that are triple-celled, meaning that three detainees are assigned to

13 sleep and spend significant blocks of time during the day in small cells that are designed for two

14 people. Pods that are triple-celled are at least 50 percent over design capacity, often housing still

15 more detainees on makeshift beds in the common dayroom space. While the population of ICE

16 detainees at SDCF fluctuates constantly, triple-celling has been a consistent practice at the facility

17 for over two years and is currently at critical levels in both male and female housing units.

18

3. Overcrowding at SDCF is the root cause of numerous unsafe and intolerable

19 conditions that afflict detainees at the facility, including: increased violence, tension, discomfort,

20 stress, mental suffering, psychiatric problems, and exposure to respiratory and other infections;

21 diminished access to medical, mental health and dental services; diminished access to exercise and

22 dayroom space and other facility services; poor sanitation and decreased ability to maintain personal

23 hygiene; overburdened and unsanitary shower and toilet facilities, resulting in more frequent

24 plumbing malfunctions and exposure to urine and feces; and the loss of personal dignity due to all

25 of the above.

26

4. Defendants’ actions, detailed herein, deny basic human needs, inflict unnecessary pain

27 and suffering, and constitute punitive conditions of confinement in violation of the due process

28 protections of the Fifth Amendment to the United States Constitution and the heightened standard

2

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1 of protection afforded to persons detained pursuant to civil rather than criminal laws. Plaintiffs seek

2 injunctive and declaratory relief to remedy this serious and ongoing violation of their rights.

3

JURISDICTION AND VENUE

4

5. This Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 1331

5 because it arises under the Constitution and laws of the United States.

6

6. This Court has authority to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and

7 2202, and Rule 57 of the Federal Rules of Civil Procedure.

8

7. This Court has authority to grant injunctive relief in this action pursuant to 5 U.S.C.

9 § 702, and Rule 65 of the Federal Rules of Civil Procedure.

10

8. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)(2) because

11 a substantial part of the events and omissions giving rise to plaintiffs’ claims occurred, and continues

12 to occur, in this district.

13

PARTIES

14 I. Plaintiffs

15

9. Plaintiffs Isaac Kigondu Kiniti, Jose Morales-Vargas, Sylvester Owino, Hernan

16 Ismael Delgado, and Any Castro are immigration detainees in ICE custody who have been detained

17 pursuant to civil immigration laws. They are currently being housed at SDCF.

18

10. Plaintiff Isaac Kigondu Kiniti is a 34-year-old man from Kenya who came to the

19 United States in 1997. Taken into ICE custody in May 2004, Kiniti is now seeking withholding of

20 removal based on his fear of political persecution and torture should he be deported to Kenya. He

21 is currently petitioning for Ninth Circuit review of the Board of Immigration Appeals (BIA) decision

22 denying him relief.

23

11. Kiniti was first detained at SDCF in November 2004. Between then and June 2006,

24 Kiniti was transferred back and forth between SDCF and ICE’s El Centro Service Processing Center

25 (“El Centro”) a number of times, spending several months at a time at each facility. Since June

26 2006, however, Kiniti has remained in detention at SDCF—with the exception of about 10 days

27 when he was briefly housed at El Centro in November-December 2006.

28

12. Kiniti has been triple-celled repeatedly at SDCF. He has filed numerous written

3

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1 grievances related to triple-celling, and has complained directly to Ronda Richardson, a Senior

2 Auditor of the DHS Office of Inspector General (OIG) who interviewed him in early 2005, as part

3 of an OIG investigation into overcrowding and other problems at SDCF. While at El Centro in May

4 2005, Kiniti filed the original Complaint in this lawsuit, which raised individual damages claims

5 based on, inter alia, the severe overcrowding he had experienced at SDCF earlier that year.

6

13. Plaintiff Jose Morales-Vargas is a 36-year-old man from Guatemala who came to the

7 United States in June 2006 to seek asylum. Morales-Vargas immediately was taken into ICE custody

8 and was interviewed by a trained asylum officer, who found him to possess a credible fear of

9 persecution should he return to Guatemala. An individual hearing before an Immigration Judge on

10 the merits of Morales-Vargas’s request for asylum is scheduled for March 6, 2007.

11

14. Morales-Vargas has been housed at SDCF since June 16, 2006. He has been triple-

12 celled continuously throughout that time, except for 11 days spent in segregation.

13

15. Plaintiff Sylvester Owino is a 30-year-old man from Kenya who came to the United

14 States in 1998. He was taken into ICE custody on November 8, 2005 and has been detained at SDCF

15 since that time. Owino is currently petitioning the Ninth Circuit for review of the BIA’s decision

16 denying him protection under the Convention Against Torture. Owino fears that he will be subjected

17 to torture and persecution by the police if he is returned to Kenya.

18

16. Owino has been triple-celled for most of his detention at SDCF and without

19 interruption since June 11, 2006. Owino has filed numerous written grievances related to

20 overcrowding and other conditions at SDCF.

21

17. Plaintiff Hernan Ismael Delgado is a 36-year-old man from El Salvador who entered

22 the United States in 1980 when he was ten years old. Delgado’s parents were tortured and killed

23 execution-style in his home country, and Delgado entered the United States as an orphan seeking

24 asylum. Delgado now has two children who are U.S. citizens.

25

18. Delgado was taken into ICE custody in February 2003 and has been housed at SDCF

26 since October 8, 2004. His petition for review to the Ninth Circuit was filed in December 2003 and

27 remains pending. Delgado is currently triple-celled, as he has been for the majority of his 27 months

28 at SDCF. Delgado spent approximately six months sleeping in a plastic “boat” when he first arrived

4

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1 at the facility. A “boat” is a flat plastic container with a thin sleeping mat that is placed on the floor

2 of the cell.

3

19. Plaintiff Any Castro is a 28-year-old woman from Honduras who first entered the

4 United States in September 1995. Castro’s sister is a lawful permanent resident, and her two-year-

5 old son is a U.S. citizen. She attended technical college to become a nurse’s assistant, and worked

6 as a nurse’s assistant until the time of her arrest, which led to her current detention.

7

20. Castro has been detained at SDCF since September 2006. She has been triple-celled

8 throughout her time at the facility, and slept on a boat on the floor of her cell for the first two months

9 of her detention.

10 II. Defendants

11

21. Defendant Julie L. Myers is Assistant Secretary for U.S. Immigration and Customs

12 Enforcement (ICE), the arm of DHS charged with detaining and removing non-citizens pursuant to

13 federal immigration law. As the top official at ICE, Myers sets detention and removal priorities and

14 has ultimate responsibility for the safety and well-being of persons detained in ICE custody. The

15 Office of Detention and Removal Operations (DRO), a division of ICE, manages the daily detention

16 of approximately 27,000 immigration detainees. Myers supervises the official conduct of all DRO

17 officials and may appoint and remove subordinate defendants named herein. The DHS Secretary,

18 Michael Chertoff, is specifically authorized by Congress to allocate funds to provide necessary

19 clothing, medical care, housing, and security for immigration detainees. See inter alia 8 U.S.C.

20 § 1103; 6 U.S.C. §§ 112, 251 and 557. As Assistant Secretary (under Chertoff) in charge of

21 immigration detention, Myers controls the allocation of monies in the DHS-ICE budget for detention

22 and removal operations and, specifically, the care and treatment of ICE detainees. In a letter dated

23 September 11, 2006, Myers provided the official ICE response to the OIG audit report on the

24 treatment of immigration detainees at five detention facilities, including SDCF.

25

22. Defendant John P. Torres is the Director of DRO for ICE and is responsible for the

26 safe, secure and humane housing of immigration detainees in ICE custody. The primary

27 responsibility of DRO is to provide adequate and appropriate custody management of immigration

28 detainees until a decision is rendered regarding their removal. ICE-DRO headquarters staff conduct

5

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1 annual inspections of each facility used to house immigration detainees, including SDCF, and assess

2 them for compliance with ICE Detention Standards. Torres oversees the DRO workforce, including

3 ICE field officers, deportation officials, compliance review officers, and officers assigned to

4 detention facilities. Torres is responsible for setting DRO policy with respect to the detention of

5 foreign nationals, and for the administration and operation of DRO.

6

23. Defendant Ron Smith is the Director of the ICE San Diego Field Office, which has

7 jurisdiction over SDCF and official control over detention and removal operations at the facility.

8 Smith oversees transfers of immigration detainees into and out of SDCF and formally approves all

9 placements of detainees at SDCF. Detainees and their advocates often lodge complaints about

10 detention conditions with ICE officers at the local field office responsible for their facility. Smith

11 supervises and oversees all ICE staff at the San Diego Field Office, including staff who field such

12 complaints and have regular contact with detainees.

13

24. Defendant Anthony Cerone is the ICE Officer-in-Charge at SDCF, and Assistant

14 Field Office Director of the ICE San Diego Field Office. As the Officer-in-Charge at the facility,

15 Cerone is the immediate legal custodian of the ICE detainees at SDCF and is directly responsible for

16 their care and treatment while in detention there. Cerone has authority to transfer detainees into and

17 out of the facility and supervises all ICE employees at SDCF. On information and belief, Cerone

18 also has significant oversight over the actions of CCA employees at SDCF, including the Warden,

19 pursuant to the DHS-ICE contractual agreement with CCA to house immigration detainees at the

20 facility. Cerone is responsible for ensuring SDCF’s compliance with the ICE Detention Operations

21 Manual (ICE Detention Standards), as well as CCA’s compliance with its contractual obligations.

22 Cerone supervises a Contracting Officer’s Technical Representative (COTR) and a Compliance

23 Review Officer, both ICE employees, who work on-site at SDCF to assist in monitoring for

24 compliance with the ICE Detention Standards and other applicable standards. In addition, Cerone

25 and/or his direct subordinates establish, monitor, and oversee detainee grievance procedures and

26 serve as members of the detainee grievance committee at SDCF (along with CCA employees).

27 Under the ICE Detention Standards, Cerone conducts the final level of review for grievances filed

28 at the facility. In addition, detainees frequently file complaints directly with deportation officers

6

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1 operating under the supervision of Cerone, using “Detainee Request Forms” issued by the DRO

2 office on-site at SDCF. Cerone also is required to meet regularly with the on-site U.S. Public Health

3 Service Health Services Administrator to review the effectiveness of the facility health care program

4 and to recommend necessary corrective actions.

5

25. Defendant Corrections Corporation of America, Inc. (CCA) is a for-profit, private

6 corporation incorporated and existing in the State of Maryland and maintaining a principal place of

7 business at 10 Burton Hills Boulevard, Nashville, Tennessee 37215. Pursuant to a contract with

8 DHS-ICE, CCA houses immigration detainees in ICE custody at SDCF, a facility managed and

9 operated primarily by CCA employees.

10

26. Defendant Joe Easterling, a CCA employee, is Warden at SDCF. As Warden,

11 Easterling has ultimate supervisory authority over all correctional officers, security personnel and

12 other CCA staff at SDCF. He is responsible for establishing and maintaining CCA’s policies and

13 practices with respect to triple-celling, use of force and segregation at SDCF. Easterling oversees

14 the daily administration and functioning of SDCF and is responsible for the safe, secure and humane

15 housing of detainees at the facility. Easterling conducts the final review of grievances filed by

16 detainees at SDCF using the “CCA Inmate/Resident Grievance Form.”

17

27. Defendant Charles Howard, a CCA employee, is Assistant Warden at SDCF.

18 Howard supervises and directs correctional officers, security personnel and other CCA staff who

19 decide and implement housing assignments at SDCF. He is responsible for implementing CCA

20 policies and practices with respect to triple-celling, use of force and segregation at SDCF.

21

28. All defendants are sued in their official capacities.

22

29. At all relevant times, all defendants were acting under color of federal law, pursuant

23 to their authority as officials, agents, contractors or employees of U.S. governmental agencies or

24 entities.

25

30. At all relevant times, defendants Easterling and Howard were acting within the scope

26 of their employment as agents and employees of CCA.

27

28

7

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1

LEGAL FRAMEWORK

2

31. The Constitution requires government actors to ensure the safety and general

3 well-being of all persons taken into custody, including non-citizens and persons who are not legally

4 admitted to this country. Convicted prisoners are protected by the Eighth Amendment, which

5 prohibits cruel and unusual punishment despite an adjudication of criminal guilt. Immigration

6 detainees, like plaintiffs, are protected by the Fifth Amendment, which prohibits any person acting

7 under color of federal law from subjecting any person in the custody of the United States to punitive

8 conditions of confinement without due process of law.

9

32. It has long been established that immigration detainees, like pre-trial detainees, are

10 protected from conditions that amount to punishment. See Wong Wing v. United States, 163 U.S.

11 228, 237 (1896). More recently, the U.S. Court of Appeals for the Ninth Circuit has held that

12 conditions of confinement for civil detainees must be superior to those of pre-trial detainees, who,

13 though not adjudged guilty of a crime, are held pursuant to criminal processes. Jones v. Blanas, 393

14 F.3d 918 (9th Cir. 2004), cert. denied, 126 S.Ct. 351 (2005). If a civil detainee is confined in

15 conditions that are identical to, similar to, or more restrictive than those under which pre-trial

16 detainees or convicted prisoners are held, then those conditions are presumptively punitive and

17 unconstitutional. Id. at 934. By definition, immigration detainees in the custody of ICE are civil

18 detainees held pursuant to civil immigration laws, and thus are entitled to the higher standard of

19 protection articulated in Jones.

20

33. The Constitution prohibits housing detainees in severely overcrowded conditions that

21 deny basic human needs. In addition to the amount of liveable space provided to each detainee, the

22 effect of overcrowding on other living conditions—for example, sanitation, the level of tension and

23 violence, the provision of health care—is relevant to whether crowding at a particular facility is

24 unlawful. Moreover, the practice of denying detainees a bed and a mattress and forcing them to

25 sleep on the floor violates constitutional protections. Thompson v. City of Los Angeles, 885 F.2d

26 1439, 1448 (9th Cir. 1989).

27

34. The Second Amended Complaint does not seek damages. Plaintiffs seek only

28 classwide declaratory and prospective injunctive relief against defendants sued in their official

8

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1 capacities for ongoing constitutional violations committed under color of federal law.

2

FACTUAL ALLEGATIONS

3 I. The ICE-CCA Partnership

4

35. The DHS-ICE contract with CCA regarding SDCF is one of many such contractual

5 agreements that provide for the temporary housing of immigration detainees in privately owned or

6 operated facilities. Under pressure to find space, if not beds, for increasing numbers of detainees

7 swept up in heightened border and immigration enforcement efforts, ICE is relying more heavily than

8 ever on the private prison industry to supply detention capacity. Currently, more than 20 percent of

9 the 27,000 persons in ICE custody are housed in for-profit, private facilities, including contract

10 detention centers like SDCF and smaller local or county jails owned or operated by private

11 companies. That percentage is growing quickly, and CCA and its shareholders are some of the

12 largest economic beneficiaries of ICE’s burgeoning business in immigration detention.

13

36. CCA was on the verge of bankruptcy in 2000. The company owned thousands of

14 empty beds, and its stock was languishing after losing 93 percent of its value. After the attacks of

15 September 11, 2001, CCA began to receive lucrative contracts to house federal immigration

16 detainees at SDCF and other facilities. By 2005, CCA’s annual revenue from holding immigrants

17 pursuant to these contracts had risen to approximately $100 million. Today CCA operates the

18 majority of the contract detention facilities housing persons in ICE custody.

19

37. CCA has discovered that housing immigration detainees is more profitable than

20 housing state and local prisoners. Immigration detention centers produce profit margins of more

21 than 20 percent, whereas traditional prison management produces returns in the mid-teens. On

22 average, private companies like CCA receive $95 per “manday”—the rate charged for each

23 individual detainee per day. This figure is substantially higher than the rate paid by state and local

24 jurisdictions for housing prisoners, and is generally higher than the rate paid by the Bureau of Prisons

25 for housing federal prisoners. Yet despite the high rate paid by the federal government to house

26 immigration detainees, these detainees receive fewer services during their detention than most

27 prisoners. SDCF, like most facilities that house only immigration detainees, does not provide high

28 school degree programs, vocational training, or organized recreational activities for detainees.

9

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1

38. On information and belief, the ICE-CCA contract regarding the housing of

2 immigration detainees at SDCF provides that ICE pays CCA per “manday.” CCA thus receives

3 more money under the contract the more detainees it houses at the facility.

4

39. On information and belief, the ICE-CCA contract regarding the housing of

5 immigration detainees at SDCF provides for an on-site Contracting Officer’s Technical

6 Representative (COTR), an ICE employee whose responsibility is to monitor, assess, record and

7 report on the technical performance of CCA on a day-to-day basis.

8

40. Notwithstanding any contractual arrangement between ICE and CCA regarding

9 SDCF, defendants Myers, Torres, Smith and Cerone remain the legal custodians of all persons

10 detained at the facility pursuant to federal immigration laws and are ultimately responsible for

11 ensuring that those detainees are held in conditions that satisfy constitutional requirements for civil

12 detainees. See West v. Atkins, 487 U.S. 42 (1988).

13 II. Chronic Overcrowding at SDCF

14

41. Chronic and recurrent overcrowding has been a persistent feature of detention

15 conditions at SDCF over the past several years. The practice of triple-celling—housing three

16 detainees in a cell designed for two—has been imposed in virtually every unit at one time or another

17 and currently affects about 675 detainees, or more than two-thirds of the ICE detainee population

18 at the facility. Still more detainees are forced to sleep in makeshift beds placed in the common

19 dayroom space.

20

42. Numerous problems result from, and are exacerbated by, overcrowding, which is the

21 root cause of many complaints made by detainees about living conditions at SDCF. Overcrowding

22 engenders violence, tension and psychiatric problems, and dilutes the availability and quality of

23 constitutionally required services. Detainee safety, personal security, health care, peace of mind, and

24 human dignity are all adversely affected by persistent overcrowding. The cumulative effect of all

25 these problems at SDCF is to deny plaintiffs adequate shelter, and to impose punitive conditions of

26 confinement on immigration detainees housed at SDCF.

27

28

10

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1

A. The Detainees

2

43. According to data released by ICE, more than half of the detainees in ICE custody at

3 any given time have never been convicted of any crime. The others are individuals, often longtime

4 lawful permanent residents of the United States, who were placed in removal proceedings because

5 of past criminal convictions for which they have already finished serving any criminal sentence that

6 they may have received, and have thus paid their debt to society. The population of detainees at

7 SDCF includes individuals who fled torture and persecution in their home countries in order to

8 obtain asylum and refuge in the United States; some of these individuals, like plaintiff Morales-

9 Vargas, were detained immediately upon entering the United States and have already been found by

10 a trained asylum officer to possess a credible fear of persecution. SDCF also houses individuals who

11 lawfully entered the United States with a visa, but are charged with overstaying the terms of that

12 visa, as well as individuals with bona fide claims of U.S. citizenship that must be proven in

13 immigration proceedings. Many detainees at SDCF have been law-abiding, productive residents for

14 many years, and have spouses, children and siblings who are U.S. citizens. Other detainees were

15 recently apprehended while crossing the United States-Mexico border. Finally, SDCF houses

16 stateless detainees and detainees from countries that will not accept deportees, many of whom may

17 languish for years in ICE custody before securing their release.

18

44. Unlike pre-trial detainees, whose length of time in detention before trial is limited by

19 speedy trial statutes, there is often no ascertainable limit to the amount of time immigration detainees

20 can expect to spend in detention. Detainees who choose to fight their removal and pursue all

21 available appeals can reasonably expect to spend three or more years in ICE custody. Lengthy stays

22 in detention are particularly common for detainees petitioning for review before the Ninth Circuit,

23 due to that circuit’s enormous backlog of immigration cases; the Ninth Circuit receives more

24 petitions for review than any other circuit and approximately 40 percent of the cases on the court’s

25 docket are immigration-related. Plaintiff Delgado, whose petition for review was filed with the

26 Ninth Circuit more than three years ago, has been in ICE custody for nearly four years. Even

27 detainees who appeal only to the BIA and then choose not to seek Ninth Circuit review can expect

28 to be detained for up to a year or more before the BIA renders its decision. On information and

11

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1 belief, a significant percentage of ICE detainees at SDCF—approximately twenty to thirty

2 percent—are resisting their removal through at least the level of BIA proceedings.

3

45. Indeed, many detainees at SDCF have spent more time in ICE detention fighting

4 removal than they spent in prison serving the criminal sentence for which they are now being

5 deported. For instance, one detainee who entered SDCF in December 2005 has been detained for

6 more than one year, despite the fact that he was only required to serve four months in county jail.

7 Another current detainee is a 61-year-old lawful permanent resident who previously served only six

8 months in a county jail, but who has already been detained at SDCF for over eight months and has

9 not yet had her individual merits hearing before an Immigration Judge.

10

46. Thus, while some portion of the immigration detainees at SDCF are quickly deported

11 and cycle out of the facility within several weeks or months, there is a large core of long-time

12 detainees who remain at the facility and endure the overcrowded conditions for many months or

13 years. For all SDCF detainees, but particularly the long-timers, defendants’ practice of triple-celling

14 inflicts ongoing physical, mental and emotional harm, and imposes punitive and unconstitutional

15 conditions of confinement.

16

B. Extent of Triple-Celling at SDCF

17

47. SDCF has six primary housing units (Units A, B, C, D, J and K), each with a design

18 capacity of approximately 200 persons. Unit B is currently used to house men in the custody of the

19 U.S. Marshals Service (USMS). Units A, C, D and K house ICE detainees. Before June 2006, Unit

20 J also housed ICE detainees and was the women’s housing unit at SDCF. In June 2006, however,

21 management of Unit J reverted to the County of San Diego, which owns the facility, pursuant to the

22 terms of its lease agreement with CCA; Unit J thus currently houses persons in the custody of the

23 County.

24

48. At the time of the transfer, Unit J was housing significantly more than 200 detainees,

25 including all the female immigration detainees at SDCF, who already had been fully triple-celled for

26 at least six months. The women were transferred to Unit K, which was housing male ICE detainees;

27 the men who had been in Unit K were folded into the other housing units, further exacerbating

28 overcrowding. Since that time, triple-celling has been nearly constant for most detainees at SDCF.

12

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1

49. Defendants Smith, Cerone, Easterling and Howard were aware of the loss of Unit J

2 and the fact that over 200 detainees in that unit would have to be accommodated in the other, already

3 crowded housing units at SDCF. Despite this knowledge, defendants did not assign fewer

4 immigration detainees to the facility. Rather, the immigration detainee population at SDCF has

5 remained relatively constant at approximately 1000 detainees since June 2006. In fact, the average

6 daily population at SDCF for the first nine months of 2006 was higher than it was over the same

7 nine-month period in 2005, despite the loss of Unit J.

8

50. At all relevant times, defendants Easterling and Howard have acted and continue to

9 act pursuant to CCA policies and practices with respect to overcrowding and the use of triple-celling

10 at detention facilities. CCA’s September 2006 Form 10-Q Quarterly Report—the first after the

11 reversion of Unit J to the County—notes that the loss of the 200-bed unit did not result in the loss

12 of any detainees because “we had the ability to consolidate inmates” into the other units at SDCF.

13

51. On information and belief, the DHS-ICE contract with CCA regarding SDCF

14 provides that 1000 beds should be available for use specifically by ICE (and not USMS). With only

15 four 200-bed housing units at the facility currently available to house immigration detainees (A, C,

16 D and K), the facility must house detainees over and above its capacity to meet the 1000-bed

17 requirement. The severity of this crowding is made still worse by the fact that two pods in Unit A

18 are allotted for segregation and protective custody cells, and one pod in Unit K houses female USMS

19 detainees in addition to ICE detainees. In light of the available housing at SDCF, the ongoing

20 assignment of immigration detainees to the facility at current population levels by defendants Smith

21 and Cerone effectively requires the practice of triple-celling.

22

52. Units C, D, and K each contain three pods, two of which are designed to house 68

23 detainees in 34 two-person cells, and the third of which is designed to house 64 detainees in 32 two-

24 person cells. Unit A contains four pods, two of which are used to house detainees in disciplinary or

25 administrative segregation and protective custody, and two of which are general population pods

26 designed to house 64 detainees. Currently, all three pods in Unit C, the two general population pods

27 in Unit A, and two of the three women’s pods in Unit K are entirely triple-celled. In these pods, in

28 addition to housing three detainees per cell, up to 16 detainees may be forced to sleep on bunk beds

13

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1 in the dayroom. Thus, 100 to 120 detainees are routinely housed in pods designed to hold only 64

2 or 68 detainees. The total number of detainees in pods that are crowded at or close to these levels

3 is approximately 675.

4

53. On information and belief, the USMS detainees at SDCF are not triple-celled, or are

5 not triple-celled to the same extent or for the same length of time as immigration detainees at the

6 facility. Unlike civil immigration detainees, USMS detainees are detained pursuant to criminal

7 charges.

8

C. Cell Dimensions

9

54. Cells at SDCF are designed for two persons and are approximately 72 square feet in

10 size (12’ x 6’). Each cell includes a single set of bunk beds, a toilet-sink unit, a stool, a desk, and

11 a small property box for each detainee to store personal items. When a third detainee is housed in

12 the cell, security officers place a plastic “boat” containing a thin sleeping mat on the floor parallel

13 to the bunk beds, immediately next to the toilet. There is less than a foot of space between the bunk

14 bed and the boat, leaving virtually no space to walk or stand inside the cell. The third detainee is

15 also given a property box.

16

55. One end of the boat is within a foot of the toilet, meaning that the detainee sleeping

17 on the floor is often sprayed with urine or water from the toilet or sink if one of his or her cellmates

18 uses the bathroom at night. It is difficult to sit comfortably on the toilet or stand in front of it without

19 stepping on the boat or the detainee sleeping therein. It is common for the plumbing of four cells

20 to be linked together, so that problems in one cell result in overflowing toilets and flooding in three

21 other cells. When this happens, the boat and sleeping mat often become soaked with water and

22 human waste.

23

56. Cell doors are made of solid metal and contain a small glass window that is sealed

24 and provides no ventilation. Doors have a small food slot that is used when the unit is on lockdown

25 and detainees are forced to remain in their cells throughout the day, including during meals.

26

57. Even when the unit is not on lockdown, plaintiffs spend significant amounts of time

27 in their cells. Detainees are normally confined to their cells for about 12 hours a day—7 hours at

28 night, and during four daily counts lasting an hour or more each.

14

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1

58. ICE Detention Standards consistently refer to the American Correctional Association

2 (ACA) Standards for Adult Local Detention Facilities. On information and belief, CCA’s contract

3 with ICE to house detainees at SDCF requires compliance with these or other ACA standards.

4

59. The ACA Standards for Adult Local Detention Facilities state that cells housing more

5 than one person must provide 25 square feet of unencumbered space per occupant. ACA 2006

6 Standards Supplement at 71 (April 2006) (Standard 3-ALDF 2C-03). Unencumbered space is

7 defined as “usable space that is not encumbered by furnishings or fixtures.” Id. Defendants’ practice

8 of housing three detainees in 72-square foot cells—in which unencumbered space is no more than

9 15 square feet for all three occupants when the boat is on the floor—does not come remotely close

10 to meeting this standard. These ACA standards also state that when confinement exceeds ten hours

11 per day, as it does at SDCF, there should be at least 70 square feet of total floor space per occupant.

12 Id. (The ACA Standards for Adult Correctional Institutions, which arguably should apply to SDCF

13 given the length of time that many detainees spend at the facility, require at least 80 square feet of

14 total floor space per occupant when in-cell confinement exceeds ten hours per day.). Thus,

15 defendants routinely provide less space for three civil immigration detainees than ACA standards

16 require for a single pre-trial criminal detainee or convicted prisoner.

17

60. On information and belief, the facility COTR is charged with monitoring and

18 assessing CCA’s compliance or non-compliance at SDCF with applicable ACA standards and

19 reporting that information to the Contracting Officer (at the Office of Federal Detention Trustee) and

20 ICE-DRO headquarters staff.

21

D. Effects of Overcrowding on Conditions Inside the Cells

22

61. Triple-celling is hard on all detainees, but it is especially hard on the floor-sleeper,

23 who must endure the indignity of being stepped on and sprayed with urine. The sides of the boats

24 are curved, increasing the pain and discomfort for detainees sleeping in them. Defendants’ failure

25 to provide all detainees with a mattress and a bed on which to sleep falls short of constitutional

26 requirements.

27

62. Plaintiff Castro was forced to sleep in a boat for the first two months of her detention

28 at SDCF. While in the boat, Castro was often extremely cold because the air vent blew directly on

15

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1 her. During this period Castro began to receive antidepressants, which made her very tired

2 throughout the day. During daytime hours, Castro would often sleep in the boat, causing great

3 discomfort to her cellmates who could not comfortably use the toilet, sink or desk. On two

4 occasions, in order to get the rest she needed and to relieve her cellmates’ discomfort, Castro moved

5 the boat underneath the bottom bunk and slid her body into it. With the underside of the bottom

6 bunk mere inches from her face, this strategy was clearly a safety hazard and she found it difficult

7 to breathe. Nonetheless, Castro found that sleeping underneath the bottom bunk was both warmer

8 and more restful than sleeping in the boat in the middle of the cell. After Castro had done this on

9 two occasions, a security officer informed her that she was not permitted to sleep underneath the bed,

10 and she was again forced to sleep in the middle of the cell.

11

63. The placement of the boat makes gaining access to the top bunk difficult and

12 treacherous, as detainees are forced to climb up and down from the desk to avoid stepping on the

13 floor-sleeper. Detainees have fallen and injured themselves as a result of these cell conditions. One

14 female detainee recently fell from the top bunk while trying not to step on the boat; she injured her

15 back and was confined to a wheelchair for a week.

16

64. Practicing Muslims who are triple-celled at SDCF do not have sufficient physical

17 space to kneel and pray five times per day. The boat takes up virtually all the usable floor space in

18 the cell. As a result, when prayer time falls during count or when the pod is on lockdown, Muslim

19 detainees are unable to exercise their religion freely.

20

65. Triple-celling exacerbates tensions among detainees confined in such close quarters

21 for long periods. Fights break out among cellmates. Detainees argue about the use of the toilet,

22 particularly at nighttime when the person on the floor must be awakened to allow his or her cellmates

23 to use the toilet. With three individuals in the cell, it becomes more difficult to keep the cell clean

24 and sanitary, and there is greater likelihood that the toilet will overflow. These problems are made

25 more unbearable when an entire pod is placed on lockdown for extended periods and detainees are

26 forced to eat all their meals in the cell together. Lockdowns have lasted as long as five consecutive

27 days while detainees were triple-celled.

28

16

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1

66. Defendants Smith, Cerone, Easterling and Howard are aware of the effects of

2 overcrowding on conditions inside the cells at SDCF but have failed to take reasonable steps to

3 reduce population levels or otherwise remedy these problems.

4

E. Effects of Overcrowding on Conditions Inside the Housing Units

5

67. In addition to increased tensions inside the cells, overcrowding increases the

6 likelihood of violence throughout the housing unit and places a strain on essential facilities and

7 services provided to detainees.

8

68. A single triple-celled pod that includes beds in the dayroom may house up to 118

9 detainees. Most pods contain 34 cells, yet have only two showers; pods containing 32 cells have four

10 showers. Shower conditions inevitably become unsanitary due to the number of detainees using the

11 facilities. Telephones, which are placed in the dayrooms, are frequently broken, making it extremely

12 difficult for detainees to obtain legal counsel, or to maintain contact with such counsel or with loved

13 ones. Overcrowding also raises the noise level inside the housing units, causing extreme discomfort

14 for detainees and further exacerbating the difficulties associated with using the phones.

15

69. With individual pods at fifty to sixty percent over capacity, conflicts erupt over the

16 use of the showers, control of television channels, and limited dayroom space. During meals, there

17 are insufficient chairs and tables in the dayroom for all detainees, forcing many to sit on the floor or

18 stand while eating. Other detainees bring food back to their cells, which worsens the sanitation

19 problem in the cells. Plaintiff Delgado was recently housed in Unit C, where several detainees began

20 to argue over the control of the two television sets. As a result, the entire pod was placed on

21 lockdown for several hours.

22

70. In the most overcrowded pods, ten to fifteen detainees are housed in the dayroom on

23 bunk beds. When this happens, one cell on the lower tier of the pod is typically kept unoccupied and

24 unlocked for use as a bathroom. Thus, the detainees assigned to sleep in the dayroom must share

25 a single toilet and sink with as many as 118 other detainees. These detainees also must store their

26 property in the dayroom, where it is accessible to every other detainee in the pod.

27

71. Each housing unit has a small, concrete yard containing a basketball hoop and two

28 sets of metal bars for exercise. Each pod is permitted approximately one hour of recreation in the

17

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1 morning and one hour in the afternoon. When pods are triple-celled and house close to 100

2 detainees or more, the yard does not provide enough recreational space for all detainees to exercise

3 properly.

4

72. Security staff at SDCF are insufficient to monitor the severely overcrowded units.

5 Over 100 detainees in a single pod, or 300 detainees in a single unit, frequently remain under

6 observation by only one or two security officers in the control room, who are unable to ensure the

7 safety of all detainees without additional staff. Plaintiff Morales-Vargas has had to defend himself

8 in at least five incidents of detainee-on-detainee violence that went unnoticed or were ignored by

9 security staff. Plaintiff Owino has witnessed numerous fights among detainees that transpired

10 without the intervention of security staff. When staff does intervene, entire pods are often placed

11 on lockdown for three to four days in response to fights among individual detainees.

12

73. The direct connection between overcrowding and increased violence among detained

13 populations is well-established. The Governor of California recently issued a proclamation declaring

14 a state of emergency in California state prisons that repeatedly links the incidence of assaults and

15 riots by inmates to prison overcrowding levels. Unlike the incarcerated population at issue in the

16 Governor’s proclamation, immigration detainees at SDCF are detained pursuant to civil processes

17 for non-punitive purposes and are entitled to a higher standard of protection with respect to their

18 likely exposure to violence while in detention.

19

74. Defendants Smith, Cerone, Easterling and Howard are aware of the effects of

20 overcrowding on conditions inside the housing units at SDCF but have failed to take reasonable steps

21 to reduce population levels or otherwise remedy these problems.

22

F. Spillover into Holding Cells and Segregation

23

75. Upon entering SDCF and prior to placement in a housing unit, immigration detainees

24 are initially kept in a holding cell. Detainees are placed in similar holding cells when awaiting

25 imminent deportation, release from the facility, or transport to an off-site location such as

26 immigration court in downtown San Diego.

27

76. Each holding cell is a small, secure room with a concrete floor, a long metal bench

28 against the wall, and a toilet-sink unit. On information and belief, detainees are sometimes housed

18

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1 in such holding cells for more than 12 hours, while they are being processed or while waiting for bed

2 space to open up in crowded housing units. If detainees, who are often transferred in and out of the

3 facility in the early morning hours, need to sleep they must lie directly on the concrete floor or the

4 metal bench. There is just enough room in a typical holding cell for approximately 12 detainees to

5 sleep in a row on the floor, side-by-side, touching one another, like sardines. Detainees who must

6 be transported to downtown San Diego in order to appear before the Immigration Judge are often

7 awakened in the middle of the night and transferred out of their cell and into such a holding cell; on

8 information and belief, such detainees often fail to receive a morning meal and appear in

9 immigration court hungry, disheveled, and sleep-deprived.

10

77. One detainee, an Iranian asylum seeker whose wife, sister and father are all U.S.

11 citizens, spent two consecutive days in a holding cell with 18 people when he first came to SDCF

12 in September 2006.

13

78. Defendants also use administrative segregation to house overflow detainees who

14 cannot be accommodated in overcrowded pods. Indeed, placement in segregation is a routine

15 punishment for detainees who refuse to be triple-celled.

16

79. Detainees confined in segregation remain in their cells for 23 to 24 hours a day and

17 are required to eat all meals in their cells. Segregated detainees are offered one hour of out-of-cell

18 exercise, five days per week, in a small cement yard (approximately 8' x 16') surrounded by a chain-

19 link fence; detainees refer to this yard as a “cage.” On most days, detainees in segregation are

20 provided with their exercise hour early in the morning before the sun rises, or late in the evening

21 after the sun sets; when it is cold outside, many detainees—who are not issued winter clothing and

22 must resort to purchasing sweatshirts from the commissary if they have funds—decline to go outside.

23

G. Effect of Overcrowding on Health Conditions and Medical Services

24

80. Overcrowding diminishes the availability of adequate medical, mental health and

25 dental care at the facility. Health services staff respond more slowly to sick call requests for medical

26 and dental care as a result of the over-capacity detainee population at SDCF and the medical intake

27 screening process is overburdened.

28

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1

81. In addition, triple-celling creates serious health problems for detainees. Respiratory

2 infections and other illnesses are rampant because of the close quarters and the amount of time that

3 detainees must spend confined in their cells. With three detainees in a cell and the cell door closed,

4 the air inside the cell becomes warm and humid, making it difficult to breathe. This has a

5 particularly deleterious effect on asthmatics, such as plaintiff Owino, who are at greater risk of

6 suffering asthma attacks because of these conditions.

7

82. Detainees living in severely overcrowded conditions are at greater risk for both

8 methicillin resistant staphylococcus aureus (MRSA) and multidrug resistant tuberculosis (MDRTB).

9 MRSA is a highly contagious bacteria known to spread rapidly in institutional settings where poor

10 sanitation and close confinement create a greater likelihood of transmission. MRSA causes skin

11 infections and boils and can lead to serious complications such as deep abscesses, pneumonia,

12 endocarditis (infection of the heart), meningitis, bone infection, blood infection and death. MDRTB

13 is a potentially fatal air-borne disease whose spread is facilitated by poor air circulation and crowded

14 conditions.

15

83. On information and belief, numerous mentally ill detainees are triple-celled in general

16 population as a result, at least in part, of overcrowding and the strain that it places on mental health

17 services. For approximately one month, plaintiff Kiniti shared a cell with a mentally ill detainee who

18 had previously served part of his criminal sentence in a state mental institution. Kiniti’s cellmate,

19 who talked loudly to himself during the night keeping his cellmates awake, said he preferred SDCF

20 to state prison because at SDCF he could refuse to take his medication and no one would bother

21 about it. The mentally ill detainee subsequently assaulted another cellmate and was moved to

22 administrative segregation. Another detainee who has been in ICE custody for more than six years

23 was frequently triple-celled in general population despite being diagnosed with schizophrenia and

24 bipolar disorder; as a result of various medical problems, he was unable to control his bowel

25 movements and needed adult diapers, which were provided inconsistently.

26

84. Triple-celling also creates problems for detainees with limited mobility or medical

27 problems that are aggravated by crowded conditions. The medical clinic at SDCF issues

28 “chronos”—special needs forms—to such detainees that direct CCA staff not to triple-cell a detainee

20

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1 for medical reasons. Such chronos are routinely ignored by CCA staff. For example, in June 2006

2 one detainee received a medical chrono stating that he needed to be housed in a lower bunk in a two-

3 man cell because of numerous medical problems including his need to urinate frequently during the

4 night. CCA staff agreed to house the man in a lower bunk, but denied the remainder of the chrono

5 and instead triple-celled him. The detainee immediately filed a CCA Inmate/Resident Grievance

6 Form, which was denied with the standard response: “This is a non-grievable issue. We have already

7 addressed this issue in the past and will not entertain the (2) men to a cell issue. . . .”

8

85. Defendants Smith, Cerone, Easterling and Howard are aware of the effects of

9 overcrowding on health conditions and the provision of medical services at SDCF but have failed

10 to take reasonable steps to reduce population levels or otherwise remedy these problems.

11

H. Detainee Complaints and the OIG Audit

12

86. Large numbers of detainees have lodged informal complaints and filed formal

13 grievances with both ICE and CCA officials complaining about the practice of triple-celling at

14 SDCF. The grievances are systematically dismissed with language similar or identical to the

15 following: “Due to variables in housing restrictions, i.e. classification levels, gender, it can or will

16 be necessary to have (3) three individuals housed in (1) cell. This does not violate policy or

17 procedures. . . . Staff actions are appropriate. Grievance denied.”

18

87. Defendants Smith, Cerone, Easterling and Howard are aware of the volume of

19 grievances filed by immigration detainees about the effects of triple-celling and have directed or

20 approved all official responses to such complaints. These responses either state that the issue cannot

21 be grieved or summarily deny the grievance. Beverly Soria, a CCA employee, is the Grievance

22 Officer at SDCF. Soria provides the initial response to most grievances filed by detainees, including

23 all grievances related to overcrowding and triple-celling, using the CCA Inmate/Resident Grievance

24 Form. On information and belief, Soria is also the Secretary of Warden Easterling.

25

88. In October 2004, 90 detainees sent a petition to the SDCF Warden and the DHS OIG.

26 The detainees specifically complained about overcrowding (including the practice of placing three

27 detainees in two-person cells) and about a five-day lockdown in Unit A. According to the petition,

28 when detainees were released from lockdown, defendant Howard informed them that the lockdown

21

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1 was imposed to teach them a lesson. On November 23, 2004, an advocate for detainees’ rights at

2 the National Immigration Project wrote to the SDCF Warden and the ICE Officer-in-Charge about

3 overcrowding and inadequate medical care at SDCF.

4

89. Beginning in or about May 2004, based on numerous allegations of abuse and poor

5 treatment by ICE detainees in facilities across the country, the DHS OIG initiated an audit of the

6 treatment of immigration detainees. Out of more than 300 jails, prisons and other facilities around

7 the country holding immigration detainees, the OIG initially decided to focus its review on ten

8 facilities. That list of ten facilities was ultimately reduced to only five facilities due, at least in part,

9 to the volume of complaints received from those facilities, particularly SDCF. Auditors toured the

10 facilities, reviewed written complaints by detainees, and conducted numerous in-person interviews

11 of detainees.

12

90. SDCF was one of the five facilities visited by field auditors from the OIG. Those

13 visits occurred over a period of approximately ten weeks in early 2005. In addition, the OIG

14 conducted seven weeks of document review related to the San Diego facility.

15

91. A report detailing the results of the OIG audit was originally expected to be released

16 in May 2005. Then the OIG stated that due to complications with the audit of a Passaic, New Jersey

17 facility the report would not be completed and released until early February 2006. In August 2006,

18 the OIG’s spokesperson stated that the report was due to be released in late summer 2006. The long-

19 awaited results of the OIG audit were finally released on January 16, 2007. See Treatment of

20 Immigration Detainees Housed at Immigration and Customs Enforcement Facilities, available at

21 http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_07-01_Dec06.pdf (OIG Audit Report).

22

92. The OIG Audit Report indicates that 210 detainees at SDCF responded to the OIG’s

23 request for information about conditions of confinement and allegations of mistreatment at the

24 facility—more than twice as many as at any of the other four facilities that were audited. Id. at 39.

25 The report also shows that three of the four most egregious instances of physical and sexual abuse

26 reported at the five facilities took place at SDCF. Id. at 28. In addition, the report identifies

27 significant failures in the provision of adequate health care and monitoring of suicidal detainees.

28 More than half the detainees whose files were reviewed were not given a physical exam within two

22

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1 weeks of entering SDCF, and were not seen by a physician or qualified medical officer within three

2 days of submitting a request for medical attention. Id. at 4. Out of five detainees on suicide watch

3 whose files were reviewed, only one was monitored at least every 15 minutes. Id. at 6.

4

93. Despite identifying many serious problems at SDCF, the OIG Audit Report is notable

5 for what it fails to include. The report fails to even mention the problem of overcrowding at SDCF.

6 Triple-celling was widespread throughout the facility at the time of the audit in early 2005. Over 50

7 detainees spoke with the field auditors during their visit and many, including plaintiffs Kiniti and

8 Delgado, specifically complained about triple-celling, or the direct effects of triple-celling. On

9 information and belief, still more detainees complained about overcrowding, or the direct effects of

10 overcrowding, in written communications with the field auditors. Further, local immigrant advocates

11 highlighted the problem of triple-celling at multiple meetings they attended with the auditors to

12 discuss problems at SDCF.

13

94. Based on these facts, it is simply impossible to believe that the auditors were not

14 made aware of the problems associated with overcrowding at SDCF. Indeed, both the SDCF

15 Warden and the ICE Officer-in-Charge at the time of the audit were replaced shortly thereafter, and

16 the level of triple-celling declined somewhat for a period of months following the OIG visit,

17 ostensibly in response to concerns raised during the audit. Notwithstanding these changes,

18 overcrowding at SDCF gradually returned to pre-audit levels. And on July 1, 2005, soon after the

19 OIG audit at SDCF was completed, ICE awarded CCA with a contract for the continued

20 management of the facility.

21

95. On information and belief, all defendants were made aware of the OIG’s concerns

22 with respect to overcrowding at SDCF at the time of the audit, and of the auditors’ findings regarding

23 the facility—including findings that may not have been published in the official OIG Audit Report.

24 Despite this knowledge, defendants failed to take or sustain meaningful corrective action in response

25 to these findings.

26

96. Finally, the OIG Audit Report did conclude that ICE DRO’s annual detention review

27 of SDCF in 2004 failed to identify problems regarding health care and general conditions of

28 confinement observed by the OIG during its audit, and that a final rating of “Acceptable” was

23

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1 granted to SDCF despite these problems and additional problems with environmental health and

2 safety and reports of detainee abuse. Id. at 36. On information and belief, as Director of DRO

3 defendant Torres was made aware of the results of ICE DRO’s annual detention reviews and

4 approved both the inspection methods and the final rating given to facilities such as SDCF.

5

97. Defendant Myers, who provided the official ICE response to the OIG draft report in

6 September 2006, specifically rejected the OIG’s recommendation that ICE “[a]scertain the reasons

7 that areas of non-compliance identified by ICE inspections of detention facilities were significantly

8 less than the non-compliance deficiencies identified by [the OIG].” Myers asked that the

9 recommendation be considered resolved and closed. Id. at 51.

10

I. The September 2, 2006 “Riot”

11

98. The most dramatic instance of violence triggered by overcrowding at SDCF occurred

12 on September 2, 2006, when a so-called “riot” broke out in Unit D. Although triple-celling was

13 present in Unit D in the months preceding the “riot,” the use of triple-celling was not as prevalent

14 there as in the other housing units at that time. The September 2 disturbance began when CCA staff

15 attempted to initiate broader triple-celling within Unit D by placing a third detainee into a number

16 of cells. Many Unit D detainees, frustrated by the prospect of still further crowding, sat down in the

17 dayroom and asked to speak to ICE officials about the plan to expand triple-celling in their unit. As

18 the detainees waited peacefully to speak with ICE officials, CCA brought out S.O.R.T. (Special

19 Operations Response Team) officers in full anti-riot gear.

20

99. The S.O.R.T. officers released pepper spray throughout the three pods in Unit D and

21 waited approximately 15 minutes for the gas to take effect. Some detainees began to act out,

22 throwing items around the dayroom and breaking a window in one of the pods. Other detainees were

23 running around, mostly trying to return to their cells. Correctional officers armed with pepper ball

24 guns began to shoot at detainees. At least one detainee was shot in the head with a rubber bullet and

25 injured, and other detainees were pepper sprayed and later beaten while sitting peacefully inside of

26 their cells.

27

100. Following the riot, dozens of detainees were placed in disciplinary segregation and

28 accused of participating in the riot. Some were placed in segregation cells wearing only a t-shirt and

24

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1 their underwear, and were not provided blankets. The temperature in segregation was extremely

2 cold, and detainees ripped open their mattresses so they could try to stay warm while sleeping.

3 Correctional officers removed the torn mattresses from the cells, forcing detainees to sleep on metal

4 bunks without mattresses. Some detainees were eventually released from segregation after

5 disciplinary charges against them were dropped. Several others continue to be held in segregation

6 nearly five months after the incident, despite having long ago completed any disciplinary sentence

7 that they received in connection with the disturbance.

8

101. Those detainees who were not brought up on disciplinary charges after the riot

9 remained in Unit D. All three pods of Unit D were placed on Behavior Management Status which

10 entailed a round-the-clock lockdown for over a week and peanut butter sandwiches for all three

11 meals during this period. Detainees did not receive showers, personal or legal mail, exercise, access

12 to the law library or law library materials, or telephone calls, including legal calls, throughout the

13 lockdown. The lockdown was phased out over a period of weeks, during which time detainees were

14 slowly permitted to shower, their meals were returned to normal, and they were gradually allowed

15 limited access to the dayroom.

16

102. The aftermath of the September 2, 2006 disturbance is just one example of the use

17 of punitive segregation and lockdown to suppress complaints about overcrowding and other

18 conditions at SDCF; the pattern is consistent and predictable. Detainees who refuse to be

19 triple-celled are routinely placed in segregation, where they are confined to their cells for 23 hours

20 a day and have limited access to showers, legal materials, exercise time and nearly all social

21 interaction.

22

103. CCA’s extreme response to the detainees’ peaceful refusal to be triple-celled last

23 September is similar to the response tactics of CCA employees at many of the company’s other

24 facilities, and reflects a CCA policy favoring disproportionate violence and punitive measures in

25 response to non-threatening complaints by prisoners and detainees. On information and belief, the

26 ICE defendants were aware of the September riot and took no action to curb CCA’s response or alter

27 the future practices of CCA employees at the facility.

28

25

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1 III. Class Action Allegations

2

104. Plaintiffs Kiniti, Morales-Vargas, Owino, Delgado and Castro bring claims based on

3 the Fifth Amendment to the United States Constitution on behalf of themselves and all others

4 similarly situated, pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure.

5

105. Plaintiffs seek to represent a class consisting of “all immigration detainees in ICE

6 custody who are now or in the future will be confined at San Diego Correctional Facility”

7 (hereinafter the “SDCF Class”). As a result of their confinement at SDCF, members of the SDCF

8 Class including plaintiffs have been, are, and will be subjected to violations of their constitutional

9 rights as described in this Second Amended Complaint. Plaintiffs represent a class of persons

10 seeking declaratory and injunctive relief to eliminate or remedy defendants’ policies, practices, acts

11 and omissions depriving them of those rights.

12

106. There are currently approximately 1000 male and female immigration detainees

13 confined at SDCF. The proposed SDCF Class is so numerous, and membership in the class so fluid,

14 that joinder of all members is impracticable. Because ICE detainees are frequently removed from

15 the country, released from detention, and transferred between SDCF and other facilities that house

16 immigration detainees, the membership of the class changes constantly.

17

107. All SDCF Class members are equally subject to the conditions described in the

18 Second Amended Complaint, and common questions of law and fact exist as to all SDCF Class

19 members. These common questions include, but are not limited to: whether defendants have failed

20 to provide adequate shelter, reasonable safety, and basic human needs to plaintiffs as a result of

21 overcrowding at SDCF; whether plaintiffs’ conditions of confinement subject them to unreasonable

22 risk of violence, injury, illness and mental suffering; whether plaintiffs’ conditions of confinement

23 are effectively punitive; whether defendants’ conduct violates the Fifth Amendment; and whether

24 defendants’ conduct shows a pattern of officially sanctioned behavior that violates plaintiffs’ rights

25 and establishes a credible threat of future injury.

26

108. Plaintiffs’ claims are typical of the claims of the SDCF Class as a whole. Plaintiffs

27 have all been subjected to overcrowding at SDCF, including the practice of triple-celling, as is

28 typical of the SDCF Class as a whole. Plaintiffs and the class they represent have been directly

26

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1 injured by defendants’ unconstitutional policies, practices, acts and omissions with respect to

2 overcrowding, and are all at risk of future harm from continuation of these policies, practices, acts

3 and omissions.

4

109. Plaintiffs will fairly and adequately represent the interests of the SDCF Class. The

5 interests of plaintiffs are consistent with those of the class, and they are represented by counsel who

6 are experienced in class action, civil rights, immigrants’ rights, and conditions of confinement

7 litigation.

8

110. Defendants have acted and refused to act on grounds generally applicable to the

9 SDCF Class, thereby making appropriate final injunctive relief and declaratory relief with respect

10 to the class as a whole.

11

CLAIM FOR RELIEF

12

Denial of Adequate Shelter, Reasonable Safety, and Basic Human Needs

Based on Chronic and Severe Overcrowding

13

(Fifth Amendment Due Process Clause)

14

111. Defendants’ policies, practices, acts, and omissions with respect to chronic and severe

15 overcrowding at SDCF—including but not limited to the triple-celling of immigration detainees and

16 the housing of additional detainees in common dayroom spaces—deprive plaintiffs of adequate

17 shelter, reasonable safety, and basic human needs, and place them at unreasonable, continuing and

18 foreseeable risk of, inter alia, increased violence, illness, mental suffering, and deteriorating health.

19

112. Defendants’ policies, practices, acts, and omissions with respect to chronic and severe

20 overcrowding at SDCF are not justified by a legitimate governmental purpose and constitute de facto

21 punishment without due process of law. Defendants’ conduct has created and maintained, and

22 continues to maintain, punitive conditions of confinement for civil immigration detainees housed

23 at SDCF.

24

113. Defendants’ policies, practices, acts, and omissions with respect to chronic and severe

25 overcrowding at SDCF create and maintain conditions of confinement for civil immigration

26 detainees that are qualitatively similar to, or worse than, the conditions under which prisoners and

27 pre-trial criminal detainees are held at SDCF and other comparable facilities.

28

27

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1

114. Although plaintiffs, as civil immigration detainees rather than convicted prisoners,

2 need not prove deliberate indifference to establish a violation of their substantive due process rights,

3 defendants’ policies, practices, acts, and omissions with respect to chronic and severe overcrowding

4 at SDCF nevertheless constitute deliberate indifference to the basic human needs of plaintiffs.

5

115. Defendants’ policies, practices, acts, and omissions with respect to chronic and severe

6 overcrowding at SDCF violate the Due Process Clause of the Fifth Amendment to the United States

7 Constitution.

8

116. Defendants’ policies, practices, acts, and omissions with respect to chronic and severe

9 overcrowding at SDCF show a pattern of officially sanctioned behavior that violates plaintiffs’

10 rights, and establish a credible threat of future injury to plaintiffs.

11

117. As a proximate result of defendants’ unconstitutional policies, practices, acts and

12 omissions, plaintiffs have suffered and will continue to suffer immediate and irreparable injury,

13 including physical, psychological and emotional injury. Plaintiffs have no plain, adequate or

14 complete remedy at law to address the wrongs described herein. The injunctive relief sought by

15 plaintiffs is necessary to prevent continued and further injury.

16

PRAYER FOR RELIEF

17

WHEREFORE, plaintiffs respectfully request that the Court:

18

a. Issue an order certifying this action to proceed as a class action pursuant to Rules

19

23(a) and (b)(2) of the Federal Rules of Civil Procedure;

20

b. Appoint the undersigned as class counsel pursuant to Rule 23(g) of the Federal Rules

21

of Civil Procedure;

22

c. Issue a judgment declaring that defendants’ policies, practices, acts and omissions

23

described herein violate plaintiffs’ rights under the Constitution of the United States;

24

d. Permanently enjoin defendants, their subordinates, agents, employees, and all others

25

acting in concert with them from subjecting plaintiffs to the unconstitutional

26

conditions described herein, and issue injunctive relief sufficient to rectify those

27

conditions;

28

28

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1

e. Grant plaintiffs their reasonable attorney fees and costs pursuant to 28 U.S.C. § 2412,

2

and other applicable law;

3

f. Grant such other and further relief as this Court deems just and proper.

4 Dated: January 24, 2007
5
6
7
8
9
10

Respectfully submitted,
By: s/ David Blair-Loy
David Blair-Loy (SBN 229235) American Civil Liberties Union Foundation
of San Diego & Imperial Counties P.O. Box 87131 San Diego, CA 92138-7131 Tel: (619) 232-2121 Fax: (619) 232-0036 Email: dblairloy@aclusandiego.org

11

Gouri Bhat (pro hac vice pending)

Tom-Tsvi M. Jawetz (pro hac vice pending)

12

David C. Fathi* (pro hac vice pending)

American Civil Liberties Union Foundation

13

National Prison Project

915 15th Street NW, 7th Floor

14

Washington, DC 20005

Tel: (202) 548-6611

15

Fax: (202) 393-4931

Email: gbhat@npp-aclu.org

16

*Not admitted in DC; practice limited to federal courts

17

Judy Rabinovitz (pro hac vice pending)

American Civil Liberties Union Foundation

18

Immigrants’ Rights Project

125 Broad Street, 18th Floor

19

New York, NY 10004

Tel: (212) 549-2618

20

Fax: (212) 549-2654

Email: jrabinovitz@aclu.org

21

Mónica M. Ramírez (SBN 234893)

22

American Civil Liberties Union Foundation

Immigrants’ Rights Project

23

39 Drumm Street

San Francisco, CA 94111

24

Tel: (415) 343-0778

Fax: (415) 395-0950

25

Email: mramirez@aclu.org

26

Anthony M. Stiegler (SBN 126414)

Mary Kathryn Kelley (SBN 170259)

27

Cooley Godward Kronish LLP

4401 Eastgate Mall

28

San Diego, CA 92121-1909

Tel: (858) 550-6035

29

05cv01013

Case 3:05-cv-01013-DMS-PCL Document 35 Filed 01/24/2007 Page 30 of 30

1

Fax: (858) 550-6420

Email: astiegler@cooley.com

2

Counsel for Plaintiffs

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

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05cv01013

 
 Case 3:05-cv-01013-DMS-PCL Document 56 Filed 02/27/2007 Page 1 of 9

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 ISAAC KIGONDU KINITI,

CASE NO. 05cv1013 DMS (PCL)

12

Plaintiff,

13

vs.

14 BARBARA WAGNER, et al.,

15

Defendants.

16

ORDER GRANTING PLAINTIFF’S MOTION TO AMEND FIRST AMENDED COMPLAINT AND ADD PARTIES

17

This matter comes before the Court on Plaintiff’s motion for leave to amend the First Amended

18 Complaint (“FAC”). Defendants have filed an opposition, and Plaintiff has submitted a reply.

19 Additionally, the Department of Homeland Security (“DHS”) has filed an amicus brief in opposition

20 to Plaintiff’s motion. The Court finds the matter suitable for submission without oral argument

21 pursuant to Local Civil Rule 7.1(d)(1). For the following reasons, the Court grants Plaintiff’s motion.

22

I.

23

BACKGROUND

24

On May 9, 2005, Plaintiff Isaac Kigondu Kiniti, a civil immigration detainee at the San Diego

25 Correctional Facility (“SDCF”), filed the complaint in this action, along with a motion to proceed in

26 forma pauperis (“IFP”). The complaint alleged violations of constitutional rights against Corrections

27 Corporation of America, Inc. (“CCA”), the Warden and several officers at SDCF. On August 4, 2005,

28 the Court granted Kiniti’s IFP application and reviewed his complaint sua sponte under 28 U.S.C. §

- 1 -

05cv1013

Case 3:05-cv-01013-DMS-PCL Document 56 Filed 02/27/2007 Page 2 of 9

1 1915(e)(2). Pursuant to its sua sponte review, the Court dismissed several claims and several named

2 defendants, with leave to amend. Kiniti filed his FAC on June 29, 2006. The remaining defendants

3 answered the FAC on October 30, 2006. Kiniti, now represented by counsel, seeks leave to file a

4 Second Amended Complaint (“SAC”). The proposed SAC seeks to (1) add four additional plaintiffs

5 and class action allegations; (2) strike all damages claims; and (3) add additional defendants and

6 dismiss some of the named defendants.

7

The four additional plaintiffs, all civil immigration detainees housed at SDCF, include Jose

8 Morales-Vargas, Sylvester Owino, Hernan Ismael Delgado, and Any Castro. Morales-Vargas came

9 to the United States from Guatamala in June 2006. Until very recently, he was housed at SDCF.

10 Owino, a Kenyan national, came to the United States in 1998, and has been detained at SDCF since

11 November 2005. Delgado, a Salvadorian, entered the United States in 1980. He has been housed at

12 SDCF since October 8, 2004. Castro, a Honduras citizen, was detained at SDCF from September

13 2006 until February 1, 2007, when she was deported. Kiniti, also a Kenyan national, came to the

14 United States in 1997. First detained at SDCF in November, 2004, Kiniti was transferred from that

15 location but later returned to SDCF in June 2006. These plaintiffs seek to represent a class consisting

16 of “all immigration detainees [] who are now or in the future will be confined at [SDCF].” (SAC, ¶¶

17 9-20, 105.)

18

The proposed SAC seeks to substitute the defendants named in the FAC with Julie L. Myers,

19 John P. Torres, Ron Smith, Anthony Cerone, Joe Easterling, Charles Howard, and CCA. Myers serves

20 as Assistant Secretary for U.S. Immigration and Customs Enforcement (“ICE”), a branch within DHS

21 charged with detaining and removing non-citizens. Torres is the director of the Office of Detention

22 and Removal Operations, a division of ICE that manages the daily detention of immigration detainees.

23 Smith serves as Director of the ICE San Diego Field Office. Cerone is the ICE Officer-in-Charge at

24 SDCF, and Assistant Field Officer Director of the ICE San Diego Field Office. Easterling and

25 Howard are Warden and Assistant Warden at SDCF. CCA, a Maryland incorporated company,

26 provides detention and corrections services. Pursuant to contract, CCA houses immigration detainees

27 in ICE custody at SDCF. Both ICE and CCA staff work on-site at SDCF, although the facility is

28 operated primarily by CCA employees. All defendants are sued in their official capacities. (SAC,

- 2 -

05cv1013

Case 3:05-cv-01013-DMS-PCL Document 56 Filed 02/27/2007 Page 3 of 9

1 ¶21-28.)

2

The proposed SAC alleges only one claim for relief under the Fifth Amendment Due Process

3 Clause of the United States Constitution. Specifically, it alleges:

4

Defendants’ policies, practices, acts, and omissions with respect to chronic and

severe overcrowding at SDCF – including but not limited to the triple-celling of

5

immigration detainees and the housing of additional detainees in common

dayroom spaces – deprive plaintiffs of adequate shelter, reasonable safety, and

6

basic human needs, and place them at unreasonable, continuing and foreseeable

risk of, inter alia, increased violence, illness, mental suffering, and deteriorating

7

health.

8 (SAC at ¶ 111.) “Triple-celling” means to house three detainees in a cell designed for two. When this

9 happens, a plastic “boat” containing a thin sleeping mat is placed on the floor for the third detainee

10 to sleep on. (Id. at ¶ 54.) Plaintiffs allege this practice affects about 675 of the approximately 1000

11 detainees at SDCF. (Id. at ¶2.) In addition to triple-celling, some detainees are housed in “makeshift

12 beds placed in the common dayroom space.” (Id. at ¶ 41.) Holding cells and administrative

13 segregation units are also overcrowded. (Id. at ¶¶ 75-79.) “A typical holding cell” provides just

14 enough space for 12 detainees to sleep in a row on the floor, side-by-side, touching each other, “like

15 sardines.” (Id. at ¶76.) Administrative segregation is used to house “overflow detainees” and

16 “detainees who refuse to be triple-celled.” (Id. at ¶ 78.) Segregated detainees are confined in their

17 cells for 23 to 24 hours per day and are required to eat all meals in their cells. (Id. at ¶ 79.) They are

18 provided only one hour out-of-cell for exercise, five days per week, in a small cement yard surrounded

19 by a chainlink fence. (Id.)

20

The proposed SAC seeks declaratory and injunctive relief on behalf of the putative class.

21 Specifically, it seeks: “a judgment declaring that defendants’ policies . . . violate plaintiffs’ rights

22 under the Constitution,” and a judgment “permanently enjoin[ing] defendants . . . from subjecting

23 plaintiffs to the unconstitutional conditions.” (Id. at “Prayer for Relief” (c)(d).)

24

II.

25

LEGAL STANDARD

26

Leave to amend shall be freely given when justice so requires, Fed.R.Civ.P. 15(a), and should

27 not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant,

28 or futility. Foman v. Davis, 371 U.S. 178, 182 (1962). Amendment of pleadings is to be permitted

- 3 -

05cv1013

Case 3:05-cv-01013-DMS-PCL Document 56 Filed 02/27/2007 Page 4 of 9

1 unless the opposing party makes a showing of one of the above factors. Shipner v. Eastern Airlines,

2 Inc., 868 F.2d 401, 406-7 (5th Cir. 1989). “Ordinarily, courts do not consider the validity of a

3 proposed amended pleading in deciding whether to grant leave to amend.” William W. Schwarzer,

4 et al., Federal Civil Procedure Before Trial, ¶ 8:422(c) (2006); see also Saes Getters S.p.A. v.

5 Aeronex, Inc., 219 F. Supp. 2d 1081, 1086 (S.D.CA 2002) (the legal sufficiency of a proposed

6 amendment is more appropriately raised in a motion to dismiss rather than in an opposition to a

7 motion for leave to amend). However, leave to amend may be denied if the proposed amendment is

8 futile, although such denials are rare. Schwarzer, et al., Federal Civil Procedure Before Trial, ¶

9 8:422(c). An amendment is “futile” only if it is clear that no set of facts can be proved under the

10 amendment which would constitute a valid claim or defense. See DCD Programs, Ltd. v. Leighton,

11 833 F.2d 183, 188 (9th Cir. 1987).

12

III.

13

DISCUSSION

14

Defendants argue amendment of the FAC is futile because: (1) Plaintiffs are no longer subject

15 to triple-celling conditions, therefore they lack standing to bring suit; (2) Plaintiffs fail to allege an

16 actual or imminent injury because of triple-celling; (3) triple-celling is not unconstitutional; and (4)

17 violations of the American Correctional Association (“ACA”) standards do not amount to a

18 constitutional violation. DHS argues, among other things, it will be prejudiced if Plaintiffs are

19 allowed to file the proposed SAC. These arguments are addressed in turn.

20

A. Standing

21

“The jurisdiction of federal courts depends on the existence of a ‘case or controversy’ under

22 Article III of the Constitution.” GTE California, Inc. v. Federal Communications Comm’n, 39 F.3d

23 940, 945 (9th Cir. 1994). An actual controversy must exist at every stage of the litigation. See Roe

24 v. Wade, 410 U.S. 113, 125 (1973). “In general a case becomes moot ‘when the issues presented are

25 no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Murphy v. Hunt, 455

26 U.S. 478, 481 (1982). In other words, a case is moot if the issues presented are no longer of any direct

27 concern to the parties, and the Court would merely be resolving a hypothetical question. To determine

28 whether a request for declaratory and injunctive relief has become moot, the Court asks “whether the

- 4 -

05cv1013

Case 3:05-cv-01013-DMS-PCL Document 56 Filed 02/27/2007 Page 5 of 9

1 facts alleged . . . show that there is a substantial controversy, between the parties having adverse legal

2 interests, of sufficient immediacy” to warrant the issuance of a declaratory judgment or injunctive

3 relief. Preiser v. Newkirk, 422 U.S. 395, 402 (1975).

4

Defendants argue Plaintiffs lack standing because “the very condition they alleged violates

5 their constitutional rights – triple-celling – is no longer a condition faced by any of the detainees.”

6 (Opposition at 7.) (Emphasis added.) On January 27, 2007, ICE ordered SDCF to transfer 104

7 detainees to another detention facility. (Opposition, Ex. 1, ¶ 6.) Morales-Vargas was among those

8 transferred. (Id. at ¶ 7.) Four days later, ICE ordered SDCF to deport five detainees to Honduras,

9 among whom was Castro. (Id. at ¶ 9.) With respect to the remaining detainees, Defendants declare

10 “no detainee is triple-celled,” and “[a]ll boats have been removed from the housing pods.” (Id. at ¶

11 11.) Delgado has been assigned to an upper bunk, and Kiniti and Owino to lower bunks. (Id.) Based

12 on these facts, Defendants contend Plaintiffs “face no risk of impending injury,” because the condition

13 for which they sought declaratory and injunctive relief “no longer exists.” (Id. at 8.) Therefore,

14 according to Defendants, their claims are “moot” and the amendment is futile. (Id.)

15

Defendants’ argument that Plaintiffs’ claims are moot assumes the injuries alleged stem solely

16 from “triple-celling.” (Opposition at 7.) This is not the case. The proposed SAC alleges a “chronic

17 and severe overcrowding” that includes “but [is] not limited to” triple-celling of immigration

18 detainees. (SAC, ¶ 111.) In addition to triple-celling, detainees at SDCF are allegedly forced to sleep

19 on “makeshift beds in the common dayroom space.” (Id. at ¶¶ 2, 41.) “In the most overcrowded pods,

20 ten to fifteen detainees are housed in the dayroom on bunk beds.” (Id. at ¶ 70.) As a result, “100 to

21 120 detainees are routinely housed in pods designed to hold only 64 to 68 detainees.” (Id. at ¶ 52.)

22 Plaintiffs also allege detainees experience overcrowding at “holding cells” while awaiting deportation,

23 release from the facility, or transportation to an off-site location. (Id. at ¶ 75.) Often, detainees are

24 held at “holding cells” for more than 12 hours, some even for several days. (Id. ¶¶ 76-77.) “A typical

25 holding cell” provides just enough space for 12 detainees to sleep in a row on the floor, side-by-side,

26 touching each other “like sardines.” (Id. at ¶ 76.) Plaintiffs further allege overflow detainees and

27 detainees who refuse to be triple-celled are subject to oppressive confinement conditions in the

28 administrative segregation unit. (Id. at ¶¶ 78-79.) These allegations specify conditions of

- 5 -

05cv1013

Case 3:05-cv-01013-DMS-PCL Document 56 Filed 02/27/2007 Page 6 of 9

1 overcrowding unrelated to “triple-celling.”

2

Defendants also claim that 104 detainees have been permanently discharged from SDCF and

3 transferred to another detention center. Based on the allegations in the SAC, that leaves the

4 population at SDCF at approximately 900. (SAC, ¶ 106.) It is unclear, however, whether SDCF still

5 surpasses its capacity, whether any detainees are housed in the “dayroom on bunk beds,” id., ¶ 70, or,

6 whether the holding cells have become less crowded in general. Defendants do not contend the

7 individual pods do not exceed their capacity; nor do they claim conditions throughout the facility have

8 improved. It therefore cannot be said that Plaintiffs’ proposed amendment is futile. Foman, 371 U.S.

9 at 182.

10

It is also “well-settled that ‘a defendant’s voluntary cessation of a challenged practice does not

11 deprive a federal court of its power to determine the legality of the practice. Friends of the Earth,

12 Inc.v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000). “A case might become

13 moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not

14 reasonably be expected to occur.” Id. (citing United States v. Concentrated Phosphate Export Assn.,

15 393 U.S. 199, 203 (1968)). “The ‘heavy burden of persuading’ the court that the challenged conduct

16 cannot reasonably be expected to start up again lies with the party asserting mootness.” Id.

17

Even assuming Plaintiffs’ claims hinge entirely on triple-celling and no detainees are currently

18 subject to that practice, Defendants have not met their “‘heavy burden of persuading’” the court that

19 triple-celling cannot reasonably be expected to start up again. Friends of the Earth, 528 U.S. at 189.

20 Defendants, in their opposition, do not state that they would not reinstate the practice sometime in the

21 future; rather, Defendants simply declare that all detainees are no longer subjected to triple-celling.

22 Given that triple-celling is alleged to have been a “consistent practice at the facility for over two

23 years,” (SAC, ¶ 2), that the pods often exceeded capacity by over 50 percent, (id.), and that the

24 detainees’ numerous petitions to SDCF regarding triple-celling went unheard and unaddressed, (id.

25 at ¶ 88), Defendants’ assertion now that no detainees are currently triple-celled fails to establish “it

26 [is] absolutely clear” that triple-celling will not occur in the future. Accordingly, Defendants’

27 voluntary cessation of triple-celling does not render the case moot.

28

B. Sufficiency of Alleged Injury

- 6 -

05cv1013

Case 3:05-cv-01013-DMS-PCL Document 56 Filed 02/27/2007 Page 7 of 9

1

Defendants contend the amendment is futile because Plaintiffs have not alleged “they have

2 suffered actual harm, or face personal impending harm” as a result of triple-celling. Defendants’

3 argument is two-fold: (1) the failure to allege an actual harm deprives Plaintiffs of standing, i.e,

4 Plaintiffs have not demonstrated an injury in fact; and (2) the same defect shows the allegations are

5 “insufficient to state a claim” for injunctive relief. (Opposition 8-9.)

6

It is well-established that to adequately allege standing, a plaintiff must allege: (1) an injury

7 that is sufficiently “concrete and particularized,” as well as “actual or imminent,” (2) a causal

8 connection between the injury and the alleged wrong; and (3) redressibility. Lujan v. Defendants of

9 Wildlife, 504 U.S. 555, 561 (1992). “At the pleading stage, general allegations of injury resulting from

10 the defendant’s conduct may suffice,” and the court presumes that “general allegations embrace those

11 specific facts that are necessary to support a claim.” Id. When injunctive relief is sought, litigants

12 must adduce a “credible threat” of recurrent injury. Los Angeles v. Lyons, 461 U.S. 95, 103 (1983)

13 (holding “Lyons’ standing to seek the injunction requested depended on whether he was likely to

14 suffer future injury from the use of the chokeholds by police officers.”).

15

Defendants must demonstrate the amendment is “futile” and that no set of facts could be

16 proved under the amendment which would confer standing or allow injunctive relief. See DCD

17 Programs, 833 F.2d at 188. Defendants have not met this burden. The SAC alleges conditions of

18 overcrowding that, if proved, may amount to a constitutional violation. For example, the SAC avers

19 that the housing conditions at SDCF create serious health problems for detainees, with “particularly

20 deleterious effect on asthmatics,” such as Owino. (SAC, ¶ 81.) Kiniti alleges he was forced to share

21 a cell with a mentally-ill detainee who subsequently assaulted another cellmate. (Id. at ¶ 83.) The

22 SAC also alleges facts tending to show a likelihood of recurring injury. (See id. at ¶¶ 86-88, 98-103.)

23 Crediting these allegations, as the Court must at this stage of the proceedings, it cannot be said that

24 no set of facts can be proved under the amendment that would confer standing or provide injunctive

25 relief.

26

C. Sufficiency of Alleged Constitutional Violations

27

Defendants argue the proposed amendment is futile because: (1) “triple-celling is not

28 unconstitutional,” (opposition at 10-12), and (2) “violations of ACA standards fail to state a

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05cv1013

Case 3:05-cv-01013-DMS-PCL Document 56 Filed 02/27/2007 Page 8 of 9

1 constitutional violation claim.” (Id. at 12.) These arguments fall short of establishing futility. The

2 first argument fails because, as already pointed out, the SAC alleges conditions of overcrowding

3 caused by various failed policies and practices, “including but not limited to” triple-celling. Thus,

4 assuming triple-celling is not per se unconstitutional, Plaintiffs’ allegations are not “futile” because

5 they have alleged illegal practices unrelated to triple-celling. The second argument is also unavailing

6 because even if some ACA violations do not amount to a constitutional violation, others might. See,

7 e.g., Hoptowit v. Ray, 682 F.2d 1237, 1248-49 (9th Cir. 1982) (overcrowding can, under certain

8 circumstances, result in specific effects that form the basis of a constitutional violation). This is a fact

9 intensive inquiry that must be explored at later stages of the proceedings, not in a motion for leave to

10 amend.

11

D. Prejudice

12

DHS argues in its amicus brief it “will be substantially prejudiced” if the amendment is

13 allowed because Plaintiff “has had two years to conduct discovery and otherwise pursue the

14 allegations in his complaint.” (Brief at 5.)1 Theoretically, the proposed defendants would have less

15 time to do the same, if added at this stage of the proceedings. However, very little has happened in

16 this case. Kiniti was proceeding pro se until very recently. It appears no discovery has been

17 conducted, and no deadline for filing amended pleadings or joining new parties has been set.

18 Accordingly, any prejudice DHS may experience does not warrant denial of Plaintiffs’ motion for

19 leave to amend. See Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)

20 (to justify denial of leave to amend, the prejudice must be substantial); see also Bell v. Allstate Life

21
1 DHS also argues the SAC attempts to join plaintiffs who are not connected by a common 22 question of law or fact. (Brief at 3-4.) The Court concludes joinder of these Plaintiffs satisfies Rule
20. Rule 20(a) imposes two specific requirements for the permissive joinder of parties: (1) a right to 23 relief must be asserted by, or against, each plaintiff relating to or arising out of the same transaction
or occurrence; and (2) some question of law or fact common to all parties must exist. Desert Empire 24 Bank v. Insurance Co. of North America, 623 F.2d 1371, 1374 (9th Cir. 1980). First, the proposed
Plaintiffs’ claim no doubt arises out of the same transaction or occurrence. The SAC alleges these 25 Plaintiffs have been injured by the same policies and practices of Defendants with respect to chronic
overcrowding at SDCF. Second, the asserted claim raises common questions of law and fact. Among 26 other things, the case asks this Court to determine whether the alleged conditions of overcrowding
violate the due process protections of the Fifth Amendment. Further, Plaintiffs seek only injunctive 27 and declaratory relief. Accordingly, joinder of the proposed Plaintiffs is proper. See League to Save
Lake Tahoe v. Tahoe Regional Planning Agency, 558 F.2d 914 (9th Cir. 1977) (Rule 20 is to be 28 construed liberally in order to promote trial convenience and to expedite the final determination of
disputes, thereby preventing multiple lawsuits.)

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05cv1013

Case 3:05-cv-01013-DMS-PCL Document 56 Filed 02/27/2007 Page 9 of 9

1 Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998) (“any prejudice to the nonmovant must be weighed against

2 the prejudice to the moving party by not allowing the amendment.”)

3

Alternatively, pursuant to Fed.R.Civ.P. 12(a)(3)(A), DHS requests a postponement of the

4 scheduled hearing on Plaintiffs’ motion for class certification, if Plaintiff is granted leave to amend.

5 The request is reasonable under the circumstances. Therefore, the hearing on motion for class

6 certification is vacated and rescheduled as set forth below.

7

IV.

8

CONCLUSION

9

For these reasons, Plaintiff’s motion for leave to amend the complaint is GRANTED. The

10 Clerk of Court shall file the proposed SAC. Defendants shall respond to the SAC pursuant to the

11 Federal Rules of Civil Procedure and Local Rules of this Court.

12

Plaintiffs’ class certification motion shall be heard on May 25, 2007, at 1:30 p.m. Defendants

13 shall file their opposition to the motion on or before May 4, 2007. Plaintiffs shall file their reply on

14 or before May 14, 2007.

15

IT IS SO ORDERED.

16 DATED: February 27, 2007

17

18
19 cc:
20

all parties Judge Lewis

HON. DANA M. SABRAW United States District Judge

21

22

23

24

25

26

27

28

- 9 -

05cv1013

 
 1 Gouri Bhat (pro hac vice pending) Tom-Tsvi M. Jawetz (pro hac vice pending)
2 David C. Fathi* (pro hac vice pending) American Civil Liberties Union Foundation
3 National Prison Project 915 15th Street NW, 7th Floor
4 Washington, DC 20005 Tel: (202) 548-6611
5 *Not admitted in DC; practice limited to federal courts

6 Judy Rabinovitz (pro hac vice pending) American Civil Liberties Union Foundation
7 Immigrants’ Rights Project 125 Broad Street, 18th Floor
8 New York, NY 10004 Tel: (212) 549-2618
9 Anthony M. Stiegler (SBN 126414)
10 Mary Kathryn Kelley (SBN 170259) Cooley Godward Kronish LLP
11 4401 Eastgate Mall San Diego, CA 92121-1909
12 Tel: (858) 550-6035

13 Counsel for Plaintiff [Additional Counsel Appear on Signature Page]
14

15

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

16

ISAAC KIGONDU KINITI,

) Case No. 3:05-cv-01013-DMS-PCL

17

)

Plaintiff,

) MOTION FOR LEAVE TO AMEND THE

18

) FIRST AMENDED COMPLAINT AND

v.

) ADD PARTIES

19

)

BARBARA WAGNER, et al.,

) Hon. Dana M. Sabraw, Courtroom 10

20

) February 26, 2007, 10:00am

Defendants.

)

21

)

22

Plaintiff Isaac Kigondu Kiniti, by and through his attorneys, hereby respectfully moves the

23 Court for leave to amend the first amended complaint and add parties, pursuant to Rules 15(a) and

24 20(a) of the Federal Rules of Civil Procedure.

25

In support of the motion, plaintiff Kiniti submits the attached Memorandum of Points and

26 Authorities and the proposed Second Amended Complaint.

27 Dated: January 24, 2007
28

Respectfully submitted, By: s/ David Blair-Loy

1

1

David Blair-Loy (SBN 229235)

2

American Civil Liberties Union Foundation

of San Diego & Imperial Counties

3

P.O. Box 87131

San Diego, CA 92138-7131

4

Tel: (619) 232-2121

Fax: (619) 232-0036

5

Email: dblairloy@aclusandiego.org

6

Gouri Bhat (pro hac vice pending)

Tom-Tsvi M. Jawetz (pro hac vice pending)

7

David C. Fathi* (pro hac vice pending)

American Civil Liberties Union Foundation

8

National Prison Project

915 15th Street NW, 7th Floor

9

Washington, DC 20005

Tel: (202) 548-6611

10

Fax: (202) 393-4931

Email: gbhat@npp-aclu.org

11

*Not admitted in DC; practice limited to federal courts

12

Judy Rabinovitz (pro hac vice pending)

American Civil Liberties Union Foundation

13

Immigrants’ Rights Project

125 Broad Street, 18th Floor

14

New York, NY 10004

Tel: (212) 549-2618

15

Fax: (212) 549-2654

Email: jrabinovitz@aclu.org

16

Mónica M. Ramírez (SBN 234893)

17

American Civil Liberties Union Foundation

Immigrants’ Rights Project

18

39 Drumm Street

San Francisco, CA 94111

19

Tel: (415) 343-0778

Fax: (415) 395-0950

20

Email: mramirez@aclu.org

21

Anthony M. Stiegler (SBN 126414)

Mary Kathryn Kelley (SBN 170259)

22

Cooley Godward Kronish LLP

4401 Eastgate Mall

23

San Diego, CA 92121-1909

Tel: (858) 550-6035

24

Fax: (858) 550-6420

Email: astiegler@cooley.com

25

Counsel for Plaintiff

26

27

28

2

05cv01013

 
 Case 3:05-cv-01013-DMS-PCL Document 75 Filed 05/04/2007 Page 1 of 6

1 KAREN P. HEWITT

United States Attorney

2 THOMAS C. STAHL

Assistant United States Attorney 3 Chief, Civil Division

4

CINDY M. CIPRIANI Assistant United States Attorney

5 California Bar Number: 144402 880 Front Street, Room 6293

6

San Diego, California 92101

Telephone:(619) 557-7390

7

E-Mail: Cindy.Cipriani@usdoj.gov

8 PETER D. KEISLER

9

United States Department of Justice Assistant Attorney General, Civil Division

10

VICTOR M. LAWRENCE, DC 449052 Senior Litigation Counsel

11 Office of Immigration Litigation SAMUEL P. GO, NYSBN 4234852

12 Trial Attorney

P.O. Box 878, Ben Franklin Station

13

Washington, D.C. 20044

Telephone: (202) 353-9923

14

Fax Number: (202) 233-0397

15

Email: samuel.go@usdoj.gov

16 Attorneys for Defendants UNITED STATES DISTRICT COURT

17

SOUTHERN DISTRICT OF CALIFORNIA

18 ISAAC KIGONDU KINITI, et al.,

19

Plaintiffs,

20

v.

21 JULIE L. MYERS, et al.,

22

Defendants.

23

24

)

) Case No. 3:05-cv-1013-DMS-PCL

)

) 1. DEFENDANTS’ NOTICE OF

)

MOTION AND MOTION TO

)

DISMISS PLAINTIFFS’ SECOND

)

AMENDED COMPLAINT;

) 2. MEMORANDUM OF POINTS

)

AND AUTHORITIES IN

)

SUPPORT OF DEFENDANTS’

)

MOTION TO DISMISS;

3. DECLARATION OF TIMOTHY L.

PERRY IN SUPPORT;

4. [PROPOSED] ORDER

25

Hearing Date:

June 15, 2007

26

Time: Courtroom:

1:30 PM 10

27

28

Defendants’ Notice of Motion and Motion to Dismiss Plaintiffs’ Second Amended Complaint 3 :0 5-cv-1 01 3-D M S -P C L

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1

NOTICE OF MOTION AND MOTION TO DISMISS1

2

PLEASE TAKE NOTICE that on June 15, 2007, at 1:30 p.m., or as soon thereafter as the

3 matter may be heard in Courtroom 10 of the above-entitled Court, located at 880 Front Street, San

4 Diego, California, defendants Julie L. Myers, Assistant Secretary, U.S. Immigration and Customs

5 Enforcement (ICE); John P. Torres, Director, Office of Detention and Removal Operations, ICE;

6 Ron Smith, former Director, San Diego Field Officer, ICE; Anthony Cerone, Officer-in-Charge at

7 San Diego Correctional Facility (SDCF), ICE; will and hereby do move this Court for an order

8 dismissing the Second Amended Complaint for Declaratory and Injunctive Relief filed by

9 plaintiffs Isaac Kigondu Kiniti, et al. (“plaintiffs”), pursuant to Rule 12(b)(1) of the Federal Rules

10 of Civil Procedure for lack of subject matter jurisdiction by this Court.

11

This motion is based upon this Notice of Motion and Motion to Dismiss, the Memorandum

12 of Points and Authorities filed herewith, the Declaration of Timothy L. Perry, the pleadings,

13 records and papers filed herein, and such other and further oral and documentary evidence and

14 legal memoranda as may be presented at or prior to the hearing on this Motion to Dismiss.

15 ///
16 /// 17

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27 1 This motion to dismiss is filed on behalf of the Federal Defendants. The United States
28 does not represent defendants Corrections Corporation of America (CCA), Joe Easterling, or Charles Howard in this matter.

Defendants’ Notice of Motion and Motion to Dismiss Plaintiffs’ Second Amended Complaint

3 :0 5-cv-1 01 3-D M S -P C L

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Case 3:05-cv-01013-DMS-PCL Document 75 Filed 05/04/2007 Page 3 of 6

1

DATED: May 4, 2007

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Respectfully submitted,
For Defendants:
KAREN P. HEWITT United States Attorney THOMAS C. STAHL Assistant U.S. Attorney Chief, Civil Division CINDY M. CIPRIANI Assistant U.S. Attorney
PETER D. KEISLER Assistant Attorney General Civil Division DAVID J. KLINE Principal Deputy Director VICTOR M. LAWRENCE Senior Litigation Counsel
s/ Samuel P. Go SAMUEL P. GO Trial Attorney U.S. Department of Justice Civil Division Office of Immigration Litigation P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 (202) 353-9923

Defendants’ Notice of Motion and Motion to Dismiss Plaintiffs’ Second Amended Complaint 3 :0 5-cv-1 01 3-D M S -P C L

Case 3:05-cv-01013-DMS-PCL Document 75 Filed 05/04/2007 Page 4 of 6

1

CERTIFICATE OF SERVICE

2

The undersigned certifies that on this 4th day of May 2007 a true and correct copy of

3 the foregoing Defendants’ Notice of Motion and Motion to Dismiss was served by ECF Filing on all
4

5 counsel of record, along with all exhibits, and through agreement of the parties, has been e-mailed to

6 the following counsel of record:

7

8

Gouri Bhat, Esq. American Civil Liberties Union Foundation

9

National Prison Project

915 15th Street, NW

10

7th Floor

11

Washington, DC 20005-2112

Gbhat@npp-aclu.org

12

Anthony Michael Stiegler

13

Cooley Godward Kronish

14

4401 Eastgate Mall

San Diego, CA 92121-9109

15

stiegleram@cooley.com

16

David Fathi

17

American Civil Liberties Union Foundation

National Prison Project

18

915 15th Street, NW

7th Floor

19

Washington, DC 20005-2112

20

dfathi@npp-aclu.org

21

John David Blair-Loy

ACLU of San Diego and Imperial Counties

22

P.O. Box 87131

23

San Diego, CA 92138

dblairloy@aclusandiego.org

24

Mary Kathryn Kelley

25

Cooley Godward Kronish

26

4401 Eastgate Mall

San Diego, CA 92121-9109

27

mkkelley@cooley.com

28

Defendants’ Notice of Motion and Motion to Dismiss Plaintiffs’ Second Amended Complaint 3 :0 5-cv-1 01 3-D M S -P C L

Case 3:05-cv-01013-DMS-PCL Document 75 Filed 05/04/2007 Page 5 of 6

1

Tom-Tsvi M. Jawetz

2

American Civil Liberties Union Foundation National Prison Project

3

915 15th Street, NW

7th Floor

4

Washington, DC 20005-2112

5

tjawetz@npp-aclu.org

6

Christopher G. Stuart

Jones Shelton and Hochuli

7

2901 North Central Avenue

8

Suite 800 Phoenix, AZ 85012

9

cstuart@jshfirm.com

10

Daniel P. Struck

11

Jones Shelton and Hochuli

2901 North Central Avenue

12

Suite 800

Phoenix, AZ 85012

13

dstruck@jshfirm.com

14 Russell R. Yurk

15

Jones Shelton and Hochuli

2901 North Central Avenue

16

Suite 800

17

Phoenix, AZ 85012

ryurk@jshfirm.com

18

Rachel Love Halvorson

19

Jones Shelton and Hochuli

20

2901 North Central Avenue

Suite 800

21

Phoenix, AZ 85012

rhalvorson@jshfirm.com 22

23

David B. Monks

Klinedinst PC

24

501 West Broadway

Suite 600

25

San Diego, CA 92101-3544

26

dmonks@klinedinstlaw.com

27

Micaela P. Shelton

Klinedinst PC

28

501 West Broadway

Defendants’ Notice of Motion and Motion to Dismiss Plaintiffs’ Second Amended Complaint 3 :0 5-cv-1 01 3-D M S -P C L

Case 3:05-cv-01013-DMS-PCL Document 75 Filed 05/04/2007 Page 6 of 6

1

Suite 600

2

San Diego, CA 92101-3544 mshelton@klinedinstlaw.com

3

4

5

/s/ Samuel P. Go

6
U.S. Department of Justice 7

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Defendants’ Notice of Motion and Motion to Dismiss Plaintiffs’ Second Amended Complaint 3 :0 5-cv-1 01 3-D M S -P C L

 
 Case 3:05-cv-01013-DMS-PCL Document 75 Filed 05/04/2007 Page 1 of 10

1 KAREN P. HEWITT

United States Attorney

2 THOMAS C. STAHL

Assistant United States Attorney 3 Chief, Civil Division

4

CINDY M. CIPRIANI Assistant United States Attorney

5 California Bar Number: 144402 880 Front Street, Room 6293

6

San Diego, California 92101

Telephone:(619) 557-7390

7

E-Mail: Cindy.Cipriani@usdoj.gov

8 PETER D. KEISLER

9

United States Department of Justice Assistant Attorney General, Civil Division

10

VICTOR M. LAWRENCE, DC 449052 Senior Litigation Counsel

11 Office of Immigration Litigation SAMUEL P. GO, NYSBN 4234852

12 Trial Attorney

P.O. Box 878, Ben Franklin Station

13

Washington, D.C. 20044

Telephone: (202) 353-9923

14

Fax Number: (202) 233-0397

15

Email: samuel.go@usdoj.gov

16 Attorneys for Defendants UNITED STATES DISTRICT COURT

17

SOUTHERN DISTRICT OF CALIFORNIA

18 ISAAC KIGONDU KINITI, et al.,

19

Plaintiffs,

20

v.

21 JULIE L. MYERS, et al.,

22

Defendants.

23

)

)

)

Case No. 3:05-cv-1013-DMS-PCL

)

)

MEMORANDUM OF POINTS AND

)

AUTHORITIES IN SUPPORT OF

)

DEFENDANTS’ MOTION TO

)

DISMISS1

)

)

24

25

26

27

1 This motion to dismiss is filed on behalf of the Federal Defendants. The United States

28 does not represent defendants Corrections Corporation of America (CCA), Joe Easterling, or

Charles Howard in this matter.

M emorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss 3 :0 5-cv-1 01 3-D M S -P C L

Case 3:05-cv-01013-DMS-PCL Document 75 Filed 05/04/2007 Page 2 of 10

1

INTRODUCTION AND BACKGROUND

2

This case began on May 9, 2005, when plaintiff Isaac Kigondu Kiniti (“Kiniti”) filed a pro se

3 Complaint, alleging, among other things, constitutional violations stemming from the overcrowding

4 of U.S. Immigration and Customs Enforcement (ICE) detainees housed at the San Diego Correctional

5 Facility (SDCF), a contract detention facility in Otay Mesa, California, operated by CCA. The initial

6 Complaint named CCA, the warden of the facility, and several SDCF officers as defendants. The

7 Court reviewed the Complaint on its own initiative, dismissed a number of claims without prejudice,

8 and dismissed several named defendants. The Court also granted Kiniti leave to file an amended

9 complaint and instructed him to identify those defendants to whom he had complained regarding the

10 conditions of his confinement. On June 29, 2006, Kiniti, still pro se, filed his First Amended

11 Complaint, and the original defendants filed an Answer on October 30, 2006.

12 On January 24, 2007, Kiniti, now represented by the ACLU, filed a motion for leave to file his

13 Second Amended Complaint, wherein he requested certification of a class in addition to both

14 declaratory and injunctive relief on behalf of the ICE immigration detainees housed at SDCF. The

15 new complaint added plaintiffs and replaced almost all of the defendants, substituting four ICE

16 officials and the current warden and assistant warden of SDCF as the related SDCF officers, and

17 replacing the former warden as a named defendant. The Second Amended Complaint also alleges for

18 the first time that defendants engaged in the practice of overcrowding and triple-celling immigration

19 detainees at SDCF. According to plaintiffs, this practice results in the violation of the immigration

20 detainees’ constitutional rights. On February 27, 2007, the Court granted plaintiffs’ motion for leave

21 to file the Second Amended Complaint, and the Second Amended Complaint was deemed filed on that

22 date.2

23

The Court initially addressed the issue of mootness in its February 27, 2007 order, when the

24 Court addressed defendants’ argument that amending the First Amended Complaint was futile

25 because, among other things, plaintiffs were no longer subject to triple-celling conditions and

26

27 2 While Kiniti’s litigation has been ongoing for some time, the Federal Defendants were
28 not a party to this lawsuit until February 27, 2007, when the Second Amended Complaint was deemed filed.

M emorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss

3 :0 5-cv-1 01 3-D M S -P C L

2

Case 3:05-cv-01013-DMS-PCL Document 75 Filed 05/04/2007 Page 3 of 10

1 therefore lacked standing to bring suit. See Order Granting Plaintiff’s Motion to Amend First

2 Amended Complaint and Add Parties (“Order”) at 4. The Court granted leave to file the Second

3 Amended Complaint, noting that “Defendants’ argument that Plaintiffs’ claims are moot assumes the

4 injuries alleged stem solely from “triple-celling,” and the Court found that “[t]his is not the case.”

5 Id. As the Court explained, plaintiffs’ proposed Second Amended Complaint alleges a “chronic and

6 severe overcrowding” that includes not only triple-celling, but allegations that immigration detainees

7 were forced to sleep on makeshift beds in the common dayroom space; that detainees experienced

8 overcrowding in holding cells; and that overflow detainees and detainees who refuse to be triple-celled

9 are subject to oppressive confinement conditions in the administrative segregation unit. Id. The Court

10 also noted that while defendants claimed that 104 detainees were permanently discharged or

11 transferred from SDCF, defendants did not contend that the individual pods did not exceed their

12 capacity. Id. at 5.

13

Furthermore, the Court stated, defendants did not meet their “heavy burden of persuading” the

14 Court that triple-celling cannot reasonably be expected to start up again. Id. Citing the case of

15 Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 189 (2000), the Court reasoned

16 that while a defendant’s voluntary cessation of a challenged practice does not deprive a federal court

17 of its power to determine the legality of the practice, “[a] case might become moot if subsequent

18 events made it absolutely clear that the allegedly wrongful behavior could not be reasonably expected

19 to occur.” Applying this standard, the Court held that defendants’ assertion that no detainees are

20 currently triple-celled failed to establish that it was absolutely clear that the triple-celling and other

21 conditions related to overcrowding could not be reasonably expected to recur. Id.

22

In contrast, this present motion to dismiss based on mootness is distinguishable from this

23 prior argument opposing the Motion for Leave to File the Second Amended Complaint. First,

24 defendants address not only the triple-celling allegations, but the other allegations referenced in the

25 Court’s February 27, 2007 Order that relate to issues of overcrowding. Second, defendants meet the

26 Friends of the Earth standard in showing that plaintiffs’ case is moot by making it “absolutely clear”

27 that the challenged conduct alleged in the Second Amended Complaint could not reasonably be

28 expected to recur.

M emorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss

3 :0 5-cv-1 01 3-D M S -P C L

3

Case 3:05-cv-01013-DMS-PCL Document 75 Filed 05/04/2007 Page 4 of 10

1

Since late January 2007 -- prior to the filing of the Second Amended Complaint -- and

2 thereafter, the number of ICE detainees housed at SDCF per day has fluctuated between 595 to 692.3

3 Declaration of Timothy L. Perry (Perry Decl.) at ¶ 17. Plaintiffs, in the Second Amended Complaint,

4 allege that SDCF’s “design capacity” for ICE immigration detainees is 800. Id. at ¶ 16; Second

5 Amended Complaint at ¶¶ 47, 51. Thus, since late January, 2007, SDCF has been operating below

6 capacity by plaintiffs’ standards, and is not “overcrowded.” Perry Decl. at ¶ 18.

7

Furthermore, since late January 2007, there has been no triple-celling of any of the ICE

8 immigration detainees at SDCF, nor has there been any situation akin to “severe and chronic

9 overcrowding.” Id. at ¶¶ 18, 19. Since late January 2007, no “boats” have been used for ICE

10 immigration detainees, and no immigration pod, administrative segregation unit or holding cell has

11 exceeded capacity. Id. at ¶ 20, 26. Finally, no ICE immigration detainees are forced to sleep on

12 “makeshift beds” in the common day rooms at SDCF, though as of May 1, 2007, 11 ICE immigration

13 detainees in the facility slept on common area bunk beds in the day room. Id. at ¶¶ 22, 23. As of May

14 3, 2007, no immigration detainees were assigned to bunk beds located in day rooms. Id. at ¶ 23. As

15 the conditions alleged by plaintiffs do not and have not existed since one month prior to the time the

16 plaintiffs’ Second Amended Complaint was filed, there is no live controversy for the court to resolve.

17 Thus, and as explained more fully below, plaintiffs’ claims are moot, and this case should be

18 dismissed.

19

ARGUMENT

20 I. 21

THIS CASE SHOULD BE DISMISSED AS MOOT SINCE NO “TRIPLE-CELLING” OR OVERCROWDING HAS EXISTED AT ANY TIME SINCE WELL BEFORE THE SECOND AMENDED COMPLAINT WAS FILED.

22

A. The Standard for Mootness

23

Generally, “a case becomes moot ‘when the issues presented are no longer live or the parties

24 lack a legally cognizable interest in the outcome.’” Murphy v. Hunt, 455 U.S. 478, 481 (1982)

25 (quoting United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396 (1980)); see McBride Cotton

26

27

3There are frequently differences between the counts generated by both ICE and CCA,

28 largely as a result that ICE generates its counts at 6:30 a.m. on a given day, while CCA generates

its count at 11:59 p.m. that night.

M emorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss

3 :0 5-cv-1 01 3-D M S -P C L

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Case 3:05-cv-01013-DMS-PCL Document 75 Filed 05/04/2007 Page 5 of 10

1 and Cattle Corp. v. Veneman, 290 F.3d 373 (9th Cir. 2002); H.C. ex rel Gordon v. Koppel, 203 F.3d

2 610, 612 (9th Cir. 2000). Addressing each of these prongs in turn, the present case is moot because

3 the issues presented are not live and have not been live since before the Second Amended Complaint

4 was filed. See Herman v. Tidewater Pacific, Inc., 160 F.3d 1239 (9th Cir. 2002). There is no live

5 controversy regarding plaintiffs’ claims, as the alleged practice of “triple-celling” or “severe and

6 chronic overcrowding” do not exist at SDCF. Perry Decl. at ¶¶ 18, 19. “Generally, an action is

7 mooted when the issues presented are no longer live and therefore the parties lack a legally cognizable

8 interest for which the courts can grant a remedy.” Oregon Advocacy Center v. Mink, 322 F.3d 1101

9 (9th Cir. 2003) (citing Alaska Ctr. for Env't v. United States Forest Serv., 189 F.3d 851, 854 (9th Cir.

10 1999)); see also Clark v. City of Lakewood, 259 F.3d 996, 1011 (9th Cir. 2001). A case becomes

11 moot when interim relief or events have deprived the court of the ability to redress the party’s injuries.

12 Cook Inlet Treaty Tribes v. Shalala, 166 F.3d 986 (9th Cir. 1999) (citing United States v. Alder Creek

13 Water Co., 823 F.3d 343, 345 (9th Cir. 1987)). See also Demery v. Arpaio, 378 F.3d 1020, 1025-26

14 (9th Cir. 2004) (“[A] suit for injunctive relief is normally moot upon the termination of the conduct

15 at issue . . .”). Here, as of late January 2007, SDCF has not “triple-celled” any ICE immigration

16 detainees and has not housed more than 692 ICE immigration detainees at one time at the facility.

17 Perry Decl. at ¶¶ 17, 19. Also, since late January 2007 no “boats” have been used for ICE immigration

18 detainees, and no immigration pod, administrative segregation unit or holding cell has exceeded

19 capacity. Id. at ¶¶ 20, 26. Furthermore, since late January 2007 no ICE immigration detainees are

20 forced to sleep on “makeshift beds” in the common day rooms at SDCF, though as of May 1, 2007,

21 11 ICE immigration detainees in the facility slept on common area bunk beds in the day room. Id. at

22 ¶¶ 22, 23. As of May 3, 2007, no immigration detainees were assigned to bunk beds located in day

23 rooms. Id. at ¶ 23. As the conditions alleged by plaintiffs in the Second Amended Complaint do not

24 and have not existed since one month prior to the time the Second Amended Complaint was filed,

25 there is no live controversy for the Court to grant plaintiffs’ requests for relief.

26

B. Plaintiffs Fail to Meet the Exception to Mootness

27

The Supreme Court has “recognized an exception to the general rule [of mootness] in cases that

28 are ‘capable of repetition, yet evading review.’” Murphy, 455 U.S. at 482.

M emorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss

3 :0 5-cv-1 01 3-D M S -P C L

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Case 3:05-cv-01013-DMS-PCL Document 75 Filed 05/04/2007 Page 6 of 10

1

[I]n the absence of a class action, the capable of repetition yet evading

review doctrine was limited to the situation where two elements

2

combined: (1) the challenged action was in its duration too short to be

fully litigated prior to its cessation or expiration, and (2) there was a

3

reasonable expectation that the same complaining party would be

subjected to the same action again.

4

Id.; see also Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir.2000). “[A] mere

5

physical or theoretical possibility” is insufficient to satisfy the test; [r]ather, . . . there must be a

6

‘reasonable expectation’ or a ‘demonstrated probability’ that the same controversy will recur

7

involving the same complaining party.” Murphy, 455 U.S. at 482; see also Demery, 378 F.3d at 1027.

8

The Court has “generally . . . been unwilling to assume that the party seeking relief will repeat the type

9

of misconduct that would once again place him or her at risk of that injury.” Honig v. Doe, 484 U.S.

10

305, 320 (1988) (citing Los Angeles v. Lyons, 461 U.S. 95, 105-106 (1983) (no threat that party

11

seeking injunction barring police use of chokeholds would be stopped again for traffic violation or for

12

another offense, or would resist arrest if stopped); Murphy, 455 U.S. at 484 (no reason to believe that

13

party challenging denial of pre-trial bail “will once again be in a position to demand bail”); O'Shea

14

v. Littleton, 414 U.S. 488, 497 (1974) (unlikely that parties challenging discriminatory bond-setting,

15

sentencing, and jury-fee practices would again violate valid criminal laws).

16

In Demery v. Arpaio, the Ninth Circuit held that while a suit for injunctive relief is normally

17

moot upon the termination of the conduct at issue, such a claim is not moot if there is a likelihood of

18

recurrence. Demery, 378 F.3d at 1025-26; Fed. Trade Comm'n v. Affordable Media, LLC, 179 F.3d

19

1228, 1238 (9th Cir. 1999) (holding that injunctive relief does not become moot by defendants'

20

voluntary cessation of allegedly wrongful behavior unless it is “absolutely clear that the allegedly

21

wrongful behavior cannot reasonably be expected to recur”) (quoting Norman-Bloodsaw v. Lawrence

22

Berkeley Laboratory, 135 F.3d 1260, 1274 (9th Cir.1998)); In Demery, the Ninth Circuit determined

23

that the plaintiffs’ lawsuit seeking a preliminary injunction barring the use of “webcams” in a prison

24

was not moot, based on the defendant sheriff’s “unequivocal” representations and actions indicating

25

that he would reactivate the webcams if the injunction was vacated. Demery, 378 F.3d at 1026. In

26

stark contrast, the defendants in the present case explicitly affirm that the alleged wrongful behavior

27

is not reasonably expected to recur. See Perry Decl. at ¶¶ 21, 24-26. Defendants do not reasonably

28

expect to engage in the practice of triple-celling the immigration detainees at SDCF and do not

M emorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss

3 :0 5-cv-1 01 3-D M S -P C L

6

Case 3:05-cv-01013-DMS-PCL Document 75 Filed 05/04/2007 Page 7 of 10

1 reasonably expect to significantly increase operation above current levels. Id. at ¶ 21. This

2 expectation is reasonable based on the fact that much of the triple-celling alleged in the Second

3 Amended Complaint was the immediate result of a loss of bed space due to San Diego County’s

4 requiring the facility to provide the county with 200 beds. Id. at ¶ 14. As a result, CCA needed to find

5 a method of housing the immigration detainee population affected by this change. Id. There is also

6 no reasonable expectation that “boats” will be used for ICE immigration detainees at SDCF, or that

7 any immigration pod, administrative segregation unit or holding cell will exceed ICE’s capacity. Id.

8 at ¶ 21, 26. Finally, there is no reasonable expectation that ICE immigration detainees will be forced

9 to sleep on “makeshift beds” in the common day rooms at SDCF. Id. at ¶ 24.

10

Thus, for all of the reasons mentioned above, there is no “reasonable expectation” or

11 “demonstrated probability” that meets the standard for plaintiffs’ claims to be considered capable of

12 repetition.4 There is no longer a “live” controversy affecting plaintiffs, and plaintiffs lack a legally

13 cognizable interest in the outcome. Plaintiffs’ claims are moot, and this case should be dismissed.

14 ///

15 ///

16

17

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26

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4 Defendants do not concede that plaintiffs satisfy the first prong of the exception, but

28 note that both prongs are necessary to meet the test for exception to the mootness doctrine, and

plaintiffs cannot meet both prongs.

M emorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss

3 :0 5-cv-1 01 3-D M S -P C L

7

Case 3:05-cv-01013-DMS-PCL Document 75 Filed 05/04/2007 Page 8 of 10

1

CONCLUSION

2

For the foregoing reasons, the Court should dismiss this action as moot.

3

4

DATED: May 4, 2007

5

Respectfully submitted,

6

For Defendants:

7

KAREN P. HEWITT

8

United States Attorney

THOMAS C. STAHL

9

Assistant U.S. Attorney

10

Chief, Civil Division CINDY M. CIPRIANI

11

Assistant U.S. Attorney

12

PETER D. KEISLER

13

Assistant Attorney General Civil Division DAVID J. KLINE

14

Principal Deputy Director

VICTOR M. LAWRENCE

15

Senior Litigation Counsel

16 s/ Samuel P. Go

17

SAMUEL P. GO

Trial Attorney

18

U.S. Department of Justice Civil Division

19

Office of Immigration Litigation

P.O. Box 878,

20

Ben Franklin Station

Washington, D.C. 20044

21

(202) 353-9923

22

23

24

25

26

27

28

M emorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss

3 :0 5-cv-1 01 3-D M S -P C L

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Case 3:05-cv-01013-DMS-PCL Document 75 Filed 05/04/2007 Page 9 of 10

1

CERTIFICATE OF SERVICE

2

The undersigned certifies that on this 4th day of May 2007 a true and correct copy of

3 the foregoing Defendants’ Motion to Dismiss was served by ECF Filing on all counsel of record.

4

Gouri Bhat, Esq.

5

American Civil Liberties Union Foundation National Prison Project

6

915 15th Street, NW

7th Floor

7

Washington, DC 20005-2112

8

Gbhat@npp-aclu.org

9

Anthony Michael Stiegler

Cooley Godward Kronish

10

4401 Eastgate Mall

11

San Diego, CA 92121-9109

stiegleram@cooley.com

12

David Fathi

13

American Civil Liberties Union Foundation

14

National Prison Project

915 15th Street, NW

15

7th Floor

Washington, DC 20005-2112

16

dfathi@npp-aclu.org

17 John David Blair-Loy

18

ACLU of San Diego and Imperial Counties

P.O. Box 87131

19

San Diego, CA 92138

20

dblairloy@aclusandiego.org

21

Mary Kathryn Kelley

Cooley Godward Kronish

22

4401 Eastgate Mall

23

San Diego, CA 92121-9109

mkkelley@cooley.com

24

Tom-Tsvi M. Jawetz

25

American Civil Liberties Union Foundation

26

National Prison Project

915 15th Street, NW

27

7th Floor

Washington, DC 20005-2112

28

tjawetz@npp-aclu.org

M emorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss 3 :0 5-cv-1 01 3-D M S -P C L

Case 3:05-cv-01013-DMS-PCL Document 75 Filed 05/04/2007 Page 10 of 10

1

2

Christopher G. Stuart Jones Shelton and Hochuli

3

2901 North Central Avenue

Suite 800

4

Phoenix, AZ 85012

5

cstuart@jshfirm.com

6

Daniel P. Struck

Jones Shelton and Hochuli

7

2901 North Central Avenue

8

Suite 800 Phoenix, AZ 85012

9

dstruck@jshfirm.com

10

Russell R. Yurk

11

Jones Shelton and Hochuli

2901 North Central Avenue

12

Suite 800

Phoenix, AZ 85012

13

ryurk@jshfirm.com

14 Rachel Love Halvorson

15

Jones Shelton and Hochuli

2901 North Central Avenue

16

Suite 800

17

Phoenix, AZ 85012

rhalvorson@jshfirm.com

18

David B. Monks

19

Klinedinst PC

20

501 West Broadway

Suite 600

21

San Diego, CA 92101-3544

dmonks@klinedinstlaw.com 22

23

Micaela P. Shelton

Klinedinst PC

24

501 West Broadway

Suite 600

25

San Diego, CA 92101-3544

26

mshelton@klinedinstlaw.com

27

/s/ Samuel P. Go

28

U.S. Department of Justice

M emorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss 3 :0 5-cv-1 01 3-D M S -P C L

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 ISAAC KIGONDU KINITI,

CASE NO. 05cv1013 DMS (PCL)

12 vs.
13 14 JULIE L. MEYERS, et al.,
15

Plaintiff, Defendants.

ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO DISMISS SECOND AMENDED COMPLAINT

16

17

This matter comes before the Court on Defenda nts’ motions to dismiss Plaintiffs’ Second

18 Amended Complaint (“SAC”). The m atter has been fully briefed a nd argued. Having carefully

19 considered the papers submitted and the argument of counsel, the Court grants in part and denies in

20 part Defendants’ motions.

21

I.

22

BACKGROUND

23

The facts of this case are well known to the parties. Therefore,the Court sets forth only those

24 facts relevant to the present motion.

25

Plaintiffs have filed suit alleging serious overcrowding at the San Diego Correctional Facility

26 (SDCF) dating back to at least November 2004. Plaintiffs include Isaac Kigondu Kiniti, Jose Morales-

27 Vargas, Sylvester Owino, Hernan Ismael Delgado, and Any Castro. Of these Plaintiffs, only Kiniti

28 and Owino currently are detained at the SDCF. The rem aining Plaintiffs have been rem oved or

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1 transferred: Castro was deported to Hondurason February 1, 2007, Morales-Vargas was deported to

2 Guatemala on May 11, 2007, and Delgado was transfe rred from SDCF to El Centro, Ca lifornia on

3 February 16, 2007. Based on changes that Defendanst made to the housing conditions challenged by

4 Plaintiffs in this lawsuit and the relocation of Plaintiffs Castro, Morales-Vargas and Delgado,

5 Defendants move to dismiss the SAC as moot.

6

The SAC alleges a violation of the Due Process Clause under the Fifth Amendment of the

7 United States Constitution due to “chronic and severe overcrowding.” It alleges:

8

Defendants’ policies, practices, acts, and omissions with respect to chronic and

severe overcrowding at SDCF – including but not limited to the triple-celling of

9

immigration detainees and the housing of additional detainees in com mon day

room spaces – deprive plaintiffs of adequate shelter, reasonable safety, and basic

10

human needs, and place them at unreasonable, continuing and foreseeable risk

of, inter alia, increased vi olence, illness, m ental suffering, and deteriorating

11

health.

12 SAC at ¶ 111. According to the SAC, “triple-cellingo”ccurs when three detainees are housed in a cell

13 designed for two. When this happens, a plastic “boat” containing a thin sleeping mat is placed on the

14 floor for the third detainee to sleep on. Id. at ¶ 54. Plaintiffs allege this practice affects about 675 of

15 the approximately 1000 detainees at SDCF. Id. at ¶2. In addition to triple-celling, some detainees are

16 housed in “makeshift beds placed in the com mon day room space.” Id. at ¶ 41. Holding cells and

17 administrative segregation units are also overcrowded. Id. at ¶¶ 75-79. “A typical holding cell”

18 provides just enough space for 12 detainees to sleepin a row on the floor, side-by-side, touching each

19 other, “like sardines.” Id. at ¶76. Administrative segregation is used to house “overflow detainees”

20 and “detainees who refuse to be triple-celled.” Id. at ¶ 78. Segregated detainees are confined in their

21 cells for 23 to 24 hours per day and are required to eat all meals in their cells. Id. at ¶ 79. They are

22 provided only one hour out-of-cell forexercise, five days per week, in a small cement yard surrounded

23 by a chainlink fence. Id.

24

Based upon these allegations, the SAC seeks j udgment: (1) declaring that such policies

25 “violate plaintiffs’ rights under the Constitution,” and (2) permanently enjoining Defendants “from

26 subjecting plaintiffs to the unconstitutional conditions.” Id., “Prayer for Relief” (c)(d).

27 / / /

28 / / /

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1

II.

2

LEGAL STANDARD

3

A. 12(b)(1)

4

“Because standing and mootness both pertain to a federal court’s subject-matter jurisdiction

5 under Article III, they are properly raised in a motion to dismiss under Federal Rule of Civil Procedure

6 12(b)(1), not Rule 12(b)(6).” 1White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (citations omitted).

7 A rule 12(b)(1) challenge can be either facial or factual. Id. With a facial attack, a defendant may

8 argue the allegations on the face of the com plaint are insufficient to show federal subject m atter

9 jurisdiction. See Warren v. Fox Family Wordwide, Inc,.328 F.3d 1136, 1139 (9th Cir. 2003). As with

10 a Rule 12(b)(6) m otion, the court m ust treat the allegations in the com plaint as true and draw all

11 inferences in favor of the plaintiff. See Gould v. U.S., 220 F.3d 169, 176 (3rd Cir. 2000). W ith a

12 factual attack, however, the moving party “disputes the truth of the allegations that, by themselves,

13 would otherwise invoke federal jurisdiction.” Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039

14 (9th Cir. 2004). In reviewing the challenge, the court may consider and weigh evidence outside the

15 pleadings without converting the motion into a motion for summary judgment. Id. (citations omitted);

16 Roberts v. Corrothers , 812 F.2d 1173, 1177 (9th Cir. 1987). The Court need not presum e the

17 truthfulness of the plaintiff’s allegations. Id. Once the moving party has presented affidavits or other

18 evidence supporting its motion, the non-moving party must furnish evidence necessary to satisfy its

19 burden of establishing subject matter jurisdiction. Id.

20

B. Standing -- Mootness

21

“The jurisdiction of federal courts depends on the existence of a ‘case or controversy’ under

22 Article III of the Constitution.” GTE California, Inc. v. Federal Communications Comm’n, 39 F.3d

23 940, 945 (9th Cir. 1994). An actual controversy must exist at every stage of the litigation. See Roe

24 v. Wade, 410 U.S. 113, 125 (1973). “In general a case becomes moot ‘when the issues presented are

25

26

1 Two motions are at issue: one filed by Defendants Corrections Corporation of America, Inc.

(“CCA”), Easterling and Howard, and the other by the remaining defendants. Both motions challenge 27 subject matter jurisdiction based on mootness. CCA, Easterling and Howard move to dismiss under

Rule 12(b)(6), while the rem aining defendants move to dism iss under Rule 12(b)(1). Because 28 mootness questions concern subject matter jurisdiction, the Court will construe the 12(b)(6) motion

as a 12(b)(1) motion.

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05cv1013

1 no longer ‘live’ or the parties lack a leglaly cognizable interest in the outcome.” Murphy v. Hunt, 455

2 U.S. 478, 481 (1982). In other words, a case is moot if the issues presented are no longer of any direct

3 concern to the parties, and the Court would m erely be resolving a hypothetical question. W here a

4 defendant asserts the “question sought to be a djudicated has been m ooted by subsequent

5 developments,” Flast v. Cohen, 392 U.S. 83, 96 (1968) , it bears the burden of proof. Mangual v.

6 Rotger-Sabat, 317 F.3d 45, 60 (1st Cir. 2003) (“[T]he burden of establishing mootness rests squarely

7 on the party raising it.”).

8

III.

9

DISCUSSION

10

Defendants mount a factual jurisdictional challenge, contending (1) Morales-Vargas, Delgado

11 and Castro’s claims are moot because they are no longer detained at SDCF; and (2) although Kiniti

12 and Owino remain at the facility, their claim s are moot because the conditions they challenge no

13 longer exist.

14

A. Morales-Vargas, Delgado and Castro

15

Defendants argue the claim s of Morales-Vargas, Delgado and Castro are m oot because

16 Morales-Vargas and Castro have been deported, and Delgado was transferred to another facility. CCA

17 Mot. to Dismiss, at 6-7. A case“becomes moot ‘when the issues presented are no longer ‘live’ or the

18 parties lack a legally cognizable interest in the outcome.” Murphy, 455 U.S. at 481. Because Castro

19 and Morales-Vargas have been deported, neither ha s a cognizable interest in the outcom e of this

20 litigation. Plaintiffs do not argue otherwise. Accordingly, their claims are dismissed.

21

With respect to Delgado, Plaintiffs argue his claim falls under the “capable of repetition, yet

22 evading review” exception to the mootness doctrine. Id. at 13. This exception provides that a named

23 plaintiff may litigate class certification even though he has no personal stake in the outcome of the

24 litigation. U.S. Parole Commission v. Geraghty, 445 U.S. 388, 398 (1980). The exception applies

25 where the named plaintiff had a personal stake at the outset of the litigation, and the claimmay arise

26 again with respect to that plaintiff. Id. Here, Plaintiffs have established a reasonable expectation that

27 Delgado may be transferred back to SDCF. Delgado remains in ICE custody and is being held at the

28 El Centro Service Processing Center. It is not uncommon for detainees to be transferred back and

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1 forth between SDCF and El Centro. Kiniti Decl. ¶ 9. Indeed, Plaintiff Kiniti and others have been

2 transferred between the tw o facilities on se veral occasions. Id. ¶¶ 2-5. Delgado has therefore

3 demonstrated that his claim is “capable of repetition, yet evading review.” The motion is denied as

4 to Delgado.

5

B. Kiniti and Owino

6

The SAC alleges Plaintiffs are subject to a condition of chronic overcrowding arising from:

7 (1) triple-celling; (2) the housing of some detainees in makeshift beds in common day room space;

8 (3) overcrowded holding cells; and (4) the housing of overflow detainees in an adm inistrative

9 segregation unit. ICE Mot. to Dismiss, at 3.

10

Defendants contend Kiniti and Owino’s claims are moot because the conditions they challenge

11 no longer exist and are unlikely to recur. In suppotr, Defendants submit declarations from Easterling

12 and Timothy L. Perry, Deputy Assistant Director for Detention Managem ent for the Office of

13 Detention and Removal Operations. Both a ffiants have informed the Court that SDCF has been

14 operating below capacity since January 28, 2007, andthe allegedly wrongful conduct no longer exists.

15 On January 27, 2007, shortly after the SAC was filed,ICE directed CCA to prepare 104 detainees for

16 deportation and/or transfer to other facilities. Easterling Decl., at ¶ 10. That discharge negated the

17 need to continue any of the practices challenged in the SAC. Id. at ¶ 11. Thus, no ICE detainees are

18 currently triple celled; SDCF “has refraine d from using ‘boats’ since January 28, 2007;” no

19 immigration detainees have been held in a holdni g cell for longer than 12 hours; and “no immigration

20 pod, administrative segregation unit or ICE holding cell has exceeded capacity.” Easterling Decl. at

21 ¶ 28; Perry Decl. at ¶¶ 19-20; 25-26. In addition, as of May 1, 2007, only 11 detainees were housed

22 in the common day room, and these assignments are “temporary,” usually not exceeding 24 hours

23 while appropriate housing is being determined. Perry Decl. At ¶¶ 22 and 23; Easterling Decl., ¶ 31.

24 Perry states, given population le vels between 575 and 692 detainees per day, that he has “no

25 reasonable expectation” that any of the alleged conduct will recur. Perry Decl., at ¶¶ 17, 26.

26

Defendants, however, have failed to satisfy their heavy burden of dem onstrating it is

27 “absolutely clear that the allegedly wrongf ul conduct could not reasonably be expected to recur.”

28 Carlton v. United Academics-AAUP/AFT/APEA AFL-CIO , 265 F.3d 778, 786 (9th Cir. 2001)

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1 (emphasis in original). Defendants’burden of persuasion is “stringent.” Friends of the Earth, Inc.v.

2 Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000). This heavy burden is met

3 where, for example, a defendant acknowledges inwriting that the challenged conduct is unlawful and

4 provides assurances the offending conduct will not be repeated.See Forest Guardians v. U.S. Forest

5 Serv., 329 F.3d 1089, 1095 (9th Cir. 2003) (It is “unreasonable to think” defendant “would return to

6 conduct it has admitted to this court is constitutionally deficient.”).See also Carlton, 265 F.3d at 780

7 (“It is unreasonable to think that the Union would resort to conduct that it had adimtted in writing was

8 constitutionally deficient and had attempted to correct ...”).

9

In contrast, Defendants here have not acknow ledged, in writing or otherwise, that the

10 challenged conduct is wrong or that overcrowding everwas a problemat SDCF. Nor have they stated

11 they would not reinstate the practices in question. In fact, Defendants dispute whether triple-celling

12 is unconstitutional and maintain such practices do “notresult in a violation ofPlaintiffs’ civil rights.”

13 CCA Mot. to Dism iss, at 5, n.1. Under these circum stances, Defendants’ representation that no

14 detainees are currently being triple-celled and they donot expect such to recur, is insufficient to render

15 the controversy moot.

16

IV.

17

CONCLUSION

18

Defendants’ motions to dismiss the SAC are granted in part and denied in part as set forth

19 above.

20

IT IS SO ORDERED.

21 DATED: June 21, 2007

22

23 24 cc: 25

all parties; Judge Lewis

HON. DANA M. SABRAW United States District Judge

26

27

28

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05cv1013

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 ISAAC KIGONDU KINITI,

CASE NO. 05cv1013 DMS (PCL)

12 vs.
13 JULIE L. MEYERS, et al., 14
15

Plaintiff, Defendants.

ORDER GRANTING MOTION FOR CLASS CERTIFICATION

16

This matter comes before the Court on Plaintiffs’ motion for class certification. Defendants

17 have submitted oppositions to the motion, and Plaintiffs have submitted a reply. Additionally, at oral

18 argument on July 6, 2007, the Court ordered the partiseto submit supplemental briefing regarding the

19 applicability of 8 U.S.C. § 1252(f)(1 ) and whether differences in the im migration status of class

20 members present a barrier to class certification. Having considered the papers submitted, including

21 the supplemental briefing and the arguments of counsel, the Court GRANTS Plaintiffs’ motion for

22 class certification.

23

I.

24

BACKGROUND

25

The facts of this case are well known to the partise. Therefore, the Court sets forth only those

26 facts relevant to the present motion. Plaintiffs have filed suit alleging serious overcrowding at the San

27 Diego Correctional Facility (SDCF) dating back toat least November 2004. Plaintiffs include Isaac

28 Kigondu Kiniti, Sylvester Owino, and Hernan Ismael Delgado. Delgado, however, was transferred

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05cv1013

1 from SDCF to El Centro, California on February 16, 2007, where he is currently housed.

2

The SAC alleges a violation of the Due Pr ocess Clause under the Fifth Am endment of the

3 United States Constitution due to “chronic and severe overcrowding.” It alleges:

4

Defendants’ policies, practices, acts, and omissions with respect to chronic and

severe overcrowding at SDCF – including but not limited to the triple-celling of

5

immigration detainees and the housing of additional detainees in com mon day

room spaces – deprive plaintiffs of adequate shelter, reasonable safety, and basic

6

human needs, and place them at unreasonable, continuing and foreseeable risk

of, inter alia, increased violence, illness, m ental suffering, and de teriorating

7

health.

8 SAC at ¶ 111. According to the SAC, “triple-celling”occurs when three detainees are housed in a cell

9 designed for two. When this happens, a plastic “boat” containing a thin sleeping mat is placed on the

10 floor for the third detainee to sleep on. Id. at ¶ 54. Plaintiffs allege this practice affects about 675 of

11 the approximately 1000 detainees at SDCF. Id. at ¶2. In addition to triple-celling, some detainees are

12 housed in “makeshift beds placed in the com mon day room space.” Id. at ¶ 41. Holding cells and

13 administrative segregation units are also overcrowded. Id. at ¶¶ 75-79. “A typical holding cell”

14 provides just enough space for 12 detainees to sleep side-by-side on the floor “like sardines.” Id. at

15 ¶76. Administrative segregation is used to house“overflow detainees” and “detainees who refuse to

16 be triple-celled.” Id. at ¶ 78. Segregated detainees are confined in their cells for 23 to 24 hours per

17 day and are required to eat all meals in their cells.Id. at ¶ 79. They are provided only one hour out-of-

18 cell for exercise, five days per week, in a small cement yard surrounded by a chainlink fence. Id.

19

Based upon these allegations, the SAC seeks judgm ent: (1) declaring that such policies

20 “violate plaintiffs’ rights under the Constitution,” and (2) enjoining Defendants “from subjecting

21 plaintiffs to the unconstitutional conditions.” Id., “Prayer for Relief” (c)(d).

22

II.

23

LEGAL STANDARDS

24

A. Standing and Ripeness

25

The requirements of Article III standing are well-etsablished: A plaintiff must show: (1) he has

26 suffered an “injury in fact ” that is (a) concrete and particularized, and (b) actual or im minent, not

27 conjectural or hypothetical; (2) the injury is fairlytraceable to the challenged action of the defendant;

28 and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable

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05cv1013

1 decision. Sacks v. Office of Foreign Assets Contro,l466 F.3d 764, 771 (9th Cir. 2006) (citingFriends

2 of the Earth, Inc. v. Laidl aw Envtl. Servs. (TOC) , Inc., 528 U.S. 167, 180-81 (2000)). Article III

3 standing requires the plaintiff to establish standingfor each and every challenge and formof relief he

4 seeks. Id.

5

The “[r]ipeness doctrine protects against premature adjudication of suits in which declaratory

6 relief is sought,” Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1044 (9th Cir. 1999) (en banc), in

7 order to prevent “entanglement in theoretical or abstract disagreements that do not yet have a concrete

8 impact on the parties.” 18 Unnamed “John Smith” Prisoners v. Meese, 871 F.2d 881, 883 (9th Cir.

9 1989). “In ‘measuring whether the litigant has asserted an injury that is real and concrete rather than

10 speculative and hypothetical, the ripeness injury merges almost completely with standing.’” Scott v.

11 Pasadena Unified School Dist., 306 F.3d 646, 662 (9th Cir. 2002). “As a prudential matter, we will

12 not consider a claimto be ripe for judicial resolution ‘if it rests upon contingent future events that may

13 not occur as anticipated, or indeed may not occur at all.’” Id.

14

B. Class Certification

15

A district court may certify a class only if: “(1) the class is so num erous that joinder of all

16 members is impracticable; (2) there are questions oflaw and fact common to the class; (3) the claims

17 or defenses of the representative parties are typical ofthe claims or defenses of the class; and (4) the

18 representative parties will fairly and adequately protect the interests ofthe class.” Dukes v. Wal-Mart,

19 Inc., 474 F.3d 1214, 1224 (9th Cir. 2007) (citing Fed.R.Civ.P. 23(a)). “The district court must also

20 find that at least one of the following three cond itions are satisfied: (1) the prosecution of separate

21 actions would create a risk of: (a) inconsistent ovrarying adjudications or (b) individual adjudications

22 dispositive of the interests of other members not a party to those adjudications; (2) the party opposing

23 the class has acted or refused to act on grounds generally applicable to the class; or (3) the questions

24 of law or fact common to the members of the class predominate over any questions affecting only

25 individual members, and a class action is superior toother available methods for the fair and efficient

26 adjudication of the controversy.”Id. (citing Fed.R.Civ.P. 23(b)). Theparty seeking certification bears

27 the burden of showing that each of the four requirements of Rule 23(a) and at least one requirement

28 of Rule 23(b) have been met. Id.

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05cv1013

1

III.

2

DISCUSSION

3

Defendants argue (1) Plaintiffs lack standing to seek injunctive relief, (Federal Defendants

4 Opposition (“Fed. Opp.”) at 3; CCA Defendants Opposition (“CCA Opp.”) at 17); (2) the claims of

5 “unnamed, future detainees” are not yet ripe, (Fed. Opp. at 4); and (3) Plaintiffs have not m et the

6 requirements of Rule 23. At oral argum ent, the Federal Defendants argued for the first tim e that 8

7 U.S.C. § 1252(f)(1) bars this case fromproceeding as an injunctive class action and requested that the

8 Court permit supplemental briefing on this issue. The CCA Defendants also requested that they be

9 allowed to further brief the issue whether the diference in immigration status between class members

10 bars class certification. These issues are addressed below.

11

A. Standing

12

Defendants claim Plaintiffs lack standing becau se they have not “dem onstrate[d] actual or

13 potential harm arising out of [D]efendants’ alleged conduct.” Fed. Opp. at 3. Further, Defendants

14 contend Plaintiffs cannot show the alleged harm “will be repeated.” Id. at 3-4.

15

In order to assert a claimon behalf of a class,the named Plaintiffs must demonstrate they have

16 personally sustained an injury which results from a challenged statute or government conduct. See

17 Armstrong v. Davis, 275 F.3d 849, 860 (9th Cir. 2001). Cont rary to Defendants’ contention, the

18 named Plaintiffs have sufficiently demonstrated at this stage ofthe litigation that they have standing.

19 Kiniti and Owino declare they were repeatedly triple-celled while detained at SDCF, forced to sleep

20 in a “boat” on the floor of the cell, observed physical al tercations as a result of the crowded

21 conditions, and e xperienced unsanitary conditions (including being “sprayed with urine” while

22 sleeping on a “boat”). Reply, Ex. I, Owino Decl.; Kiniti Decl. ISO Opp. Mt. to Dis. SAC. Plaintiff

23 Delgado alleged in the SAC he was triple-celled for the majority of his 27 months at SDCF and slept

24 on a “boat” for more than six months. SAC at ¶ 18. As areview of the substantive merits of the case

25 at this stage in the litigation is inappropriate, the Court will not evaluate the veracity of the claimed

26 injuries at this time. See Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th Cir. 1975). The detailed

27 allegations of the SAC and supporting declarations aer sufficient to establish that the named Plaintiffs

28 (a) have sustained injuries as result of the alleged violations, and (b) have a personal stake in the

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05cv1013

1 action.

2

In support of their argument that Plaintiffs lack standing to seek injunctive relief, Defendants

3 cite City of Los Angeles v. Lyons, 461 U.S. 95 (1983). In that case, Lyons was stopped at 2 a.m. by

4 Los Angeles police officers basedon a burnt out taillight. He wassubsequently choked by the police,

5 causing him to lose consciousness and suffer perm anent damage to his larynx. Lyons sought an

6 injunction barring the Los Angeles Police Department from using chokeholds except in certain limited

7 circumstances. The Court held that in the absence of a realistic threat of future injury, Lyons could

8 not “demonstrate a case or controversy with the City that would justify the injunctive relief sought.”

9 Id. at 105.

10

The Ninth Circuit, however, has distinguishedLyons from cases in which, as here, the plaintiff

11 “did nothing illegal to prom pt” the defendant’s conduct. Hodgers-Durgin, 199 F.3d at 1041. In

12 Hodgers-Durkin, the court affirmed the district court’s finding that the plaintiffs had standing to seek

13 injunctive relief. The plaintiffs, motorists who had been stopped by Border Patrol agents, alleged the

14 defendant engaged in a practice of routinely st opping motorists without reasonable suspicion. In

15 affirming the district court, the Ninth Circuit distinguished Lyons, noting that the Lyons Court itself

16 “suggested that the s top was prom pted by Lyons’ m isconduct, holding that Lyons had failed to

17 ‘demonstrate a case or controversy’ because he hadnot established a ‘real and immediate threat that

18 he would again be stopped for a t raffic violation, or for any other offense .’” Id. (em phasis in

19 original.) The court further observed that inSpencer v. Kemna, 523 U.S. 1 (1998), the Supreme Court

20 characterized the denial of standing inLyons “as having been based on theplaintiff’s ability to avoid

21 engaging in illegal conduct.” Hodgers-Durgin, 199 F.3d at 1041. Applying the Suprem e Court’s

22 interpretation of Lyons, the Ninth Circuit concluded the motorists had standing to chalenge the Border

23 Patrol’s practice. The court explained: “Unlike in Lyons, in this case it is uncontested that both

24 plaintiffs engaged in entirely innocent conduct,” and, further, that “in this case there is no string of

25 contingencies necessary to produce an injury.” Id. at 1041-2.

26

Similarly, Plaintiffs here have no control overwhen or whether Defendants will resume triple-

27 celling. Rather, the allegations in the SAC, coupled with the evidence presented thus far, indicate

28 Defendants “have repeatedly engaged in the injurious acts in the pastn, da there is sufficient possibility

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1 that they will engage in them in the near f uture to satisf y the realistic repetition requirem ent.”

2 Armstrong, 275 F.3d at 861. The SAC alleges, and Defendants do not dispute, that Defendants

3 engaged in triple-celling for several years. SAC ¶ 2. Moreover, Defendants continue to assert now

4 as in past motions that triple-celling is not unconstitutional. Fed. Opp. at 9; CCA Mot. to Dis. at 5,

5 n.1; Def. Opp. to Mt. Leave to Amend. at 30. In their motions to dismiss, Defendants acknowledge

6 that they continue to engage in som e of the alleged conduct, including housing detainees in the

7 common day room, albeit sporadically. Perry Decl. ISO Mt. to Dis. at ¶ 22. Further, even though

8 triple-celling no longer takes place at SDCF, Defe ndants have failed to assure this Court that the

9 practice will not resume in the future. June 21, 2007 Order at 6. G iven Defendants’ position that

10 triple-celling is not unconstitutional (an issue that willbe addressed on the merits at a later time in this

11 litigation), as well as the adm itted history of triple-celling, the Cour t concludes Plaintiffs have

12 standing to seek injunctive relief.

13

B. Ripeness

14

Defendants argue the claims of “unnamed, future detainees” are unripe. Fed. Opp. at 4. The

15 argument misapprehends the ripeness doctrine, which prohibits courts from deciding theoretical or

16 abstract disagreements. Meese, 871 F.2d at 883. The dispute at issue -- concerning conditions of

17 confinement and detainees’ due process rights -- is real and concrete rather than speculative and

18 hypothetical. As discussed, Defendants acknowledge theyhave triple-celled detainees in the past and

19 dispute such conduct is unconstitutional. The case is therefore ripe for review.

20

The inclusion of unnamed, future detainees who will be afefcted in the future by the challenged

21 policy is a common characteristic of class actions. See, e.g. I.N.S. v. Nat’l Ctr. for Immigrant Rights,

22 502 U.S. 183 (1991) (addressing merits of class action representing “all those persons who have been

23 or may in the future be denied the right to work pursuant to 8 CFR § 103.6); Does 1-5 v. Chandler,

24 83 F.3d 1150 (9th Cir. 1996) (addressing m erits of class consisting of “[a]ll persons who are, have

25 been, or will be identified as ‘disabled’ under Chapter 346 ...”); LaDuke v. Nelson, 762 F.2d 1318,

26 1321 (9th Cir. 1985) (affirming certification of class consisting of “[a]ll persons who have resided or

27 will reside in particularly described farm housing ...”). To interpret ripeness as Defendants suggest

28 would “preclude claims for injunctive relief on behalf of any ‘constantly changing’ class, in which

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05cv1013

1 new plaintiffs enter the cl ass by virtue of the passage of tim e.” Santillan v. Ashcroft , 2004 W L

2 2297990, *7 (N.D. Cal. 2004) (citing Sze v. INS, 153 F.3d 1005, 1010 (9th Cir. 1998)).

3

C. Certification

4

Defendants argue certification is unnecessary and, even if necessary, im proper because

5 Plaintiffs have not satisfied the commonality, typicality or adequacy of representation requirements

6 of Rule 23(a).

7

1. Necessity

8

Defendants argue certification is unnecessary because the requested relief would apply to all

9 detainees. CCA Opp. at 9. CCA calims “[n]o useful purpose wouldbe served by permitting this case

10 to proceed as a class action,” because the “determination of the constitutional question can be made”

11 without the need to certify the class. Id. at 10 (citation omitted).

12

The Court disagrees. Defendants acknowledge that the SDCF population fluctuates on a daily

13 basis and that Plaintiffs, named and unnamed, all risk being deported or transferred to other facilities

14 at any time. In particular, two of the named plaintiffs are no longer before the Court as they have been

15 deported. Given these facts, class certification is necessary because a named plaintiff’s claim could

16 be rendered moot (through deportation) before his claim is resolved. See Pederson v. Louisiana State

17 Univ., 213 F.3d 858, 867 (5th Cir. 2000) (the substantial rsik of mootness creates a necessity for class

18 certification).

19

2. Rule 23(a)

20

(a) Numerosity

21

Rule 23(a)(1) requires that the class be “so num erous that joinder of all m embers is

22 impracticable.” Fed.R.Civ. P. 23(a)(1). The Courftinds this element is met: the SAC proposes a class

23 of over 1000 detainees, including future detainees. Joinder of a ll these individuals is clearly

24 impracticable, and Defendants do not suggest otherwise.

25

(b) Commonality

26

Rule 23(a)(2) requires that “there are questions of law or fact com mon to the class.”

27 Fed.R.Civ.P. 23(a)(2). “Commonality focuses on the relationship of common facts and legal issues

28 among class members.” Dukes, 474 F.3d at 1225. This rule has been construed permissively. “All

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05cv1013

1 questions of fact and law need not be common to satisfy the rule. The existence of shared legal issues

2 with divergent factual predicates is sufficient, as is a com mon core of salient facts coupled with

3 disparate legal remedies within the class.” Id. “T he commonality test is qualitative rather than

4 quantitative – one significant issue common to the class may be sufficient to warrant certification.”

5 Id. “Plaintiffs may demonstrate commonality by showing that class members have shared legal issues

6 by divergent facts or that they share a common core of facts but base their cal ims for relief on different

7 legal theories.” Id.

8

The SAC clearly presents at least “one signifi cant issue common” to all class members. It

9 alleges that all detainees at SDCF suffer from a condition of overcrowding stemming from, among

10 other things, Defendants’ policy of triple-celling detainees. SAC, ¶ 54. Pla intiffs contend these

11 practices “deprive [them] of adequate shelter, reasonable safety, and basic human needs, and place

12 them at unreasonable, continuing and foreseeable riks of, inter alia, increased violence, illness, mental

13 suffering, and deteriorating heal th.” Id. at ¶ 111. Factually, the allegations require this Court to

14 determine whether and to what extent practices such as triple-celling took place at SDCF. In addition,

15 the allegations beg the question of how such practices impact the detainee population and whether

16 they violate the detainees’ due process rights. These factual questions are common to all detainees,

17 and satisfy Rule 23's commonality requirement.

18

The federal defendants argue the commonality element is not met because “there is no casual

19 link between the alleged harms and the defendants’ actions,” and the SAC “fails to show how any of

20 the alleged harms suffered by the named plaintiffs and the proposed class are specifically caused by

21 defendants’ actions.” Fed. Opp. at 7- 8. Defendants further contend an exam ination of Plaintiffs’

22 medical records “illust rates a m yriad of injuries, ailm ents or illnesses am ong the plaintiffs” are

23 “unrelated to any one source of conduct.” Id. at 8-9. But the se contentions misapprehend class

24 certification jurisprudence.

25

In evaluating a m otion for class certification, “[t]he court is bound to take the substantive

26 allegations of the complaint as true.” Blackie, 524 F.2d at 901 n. 17; see also Thomas v. Baca, 231

27 F.R.D. 397, 399 (C.D. Cal. 2005) (citations omitted). The question is not whether the plaintiffs have

28 stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23

- 8 -

05cv1013

1 are met. Id. (citations omitted). Assuming as the Court must that the allegations in the SAC are true,

2 it is clear Plaintiffs have alleged common questions of law and fact. Whether the harms alleged are

3 caused by the practices in question goes to the merits of Plaintiffs’ claims.

4

(c) Typicality

5

“Although the commonality and typicality requirements of Rule 23(a) tend to m erge, each

6 factor serves discrete purpose. Com monality examines the relationship of facts and legal issues

7 common to class members, while typicality focuses on the relationship of facts and issues between

8 the class and its representatives.” Dukes, 474 F.3d at 1231. Rule 23(a)(3) requires that “the claims

9 or defenses of t he representative parties are typi cal of the claim s or defenses of the class.”

10 Fed.R.Civ.P. 23(a)(3). Under the rule’s permissive standard, “representative claims are ‘typical’ if

11 they are reasonably coextensive with those of absent class members; they need not be substantially

12 identical.” Dukes, 474 F.3d at 1232. “Some degree of individuality is to be expected in all cases, but

13 that specificity does not necessarily defeat typicality.” Id.

14

Plaintiffs argue “the serious harm suffered by the putative named plaintiffs as a result of the

15 chronic and severe overcrowding at SDCF is typical of the type of harm experienced by other class

16 members.” Mt. for Cert. at 6. The Court agrees. The SAC alleges all named plaintiffs have been or

17 are currently housed at SDCF. All have experiencedsome if not all of theallegedly wrongful policies.

18 Plaintiff Kiniti was triple-celled when he sought court permission to amend his complaint. Owino,

19 who arrived at SDCF on November 8, 2005, alleges he was triple-celled for most of his detention at

20 SDCF. SAC, at ¶ 16. Delgado (who was recently transferred to another facility) alleges the same.

21 Id. at ¶ 18. Like the named plaintiffs, the SAC alleges all putative class members were subjected to

22 similar treatment and thus, experienced similar harm. Id. at ¶¶ 80-82.

23

Defendants nonetheless argue this element has not been met because “[d]espite their broad

24 nature, plaintiffs’ allegations fail to identify even one specific injury that is inextricably tied to the

25 alleged overcrowding or triple-celling at SDCF.” Fed. Opp. at 12. Defendants contend the SAC

26 “details isolated incidents” unrelated to the cl aims of m isconduct, and “plaintif fs fail to link the

27 alleged injuries suffered by the named plaintiffs to any ICE policy or practice that was applied to the

28 proffered class as a whole.” Id. at 12-13. As already discussed, these arguments concern the merits

- 9 -

05cv1013

1 of Plaintiffs’ claim: whether the alleged conduct caused the alleged injuries and, if so, whether the

2 conduct violates the detainees’ constitutional rights. Such issues are not appropriately addressed at

3 this stage of the proceeding. Moreover, the argument does not address the typicality requirement.

4

(d) Adequate Representation

5

Rule 23(a)(4) permits certification of a class action only if “the representative parties will

6 fairly and adequately protect the interests ofthe class.” Fed.R.Civ.P. 23(a)(4). “This factor requires:

7 (1) the proposed representative Plaintiffs do not haveconflicts of interest with the proposed class; and

8 (2) Plaintiffs are represented by qualified and competent counsel.” Dukes, 474 F.3d at 1233.

9

Plaintiffs are represented by able counsel, and there is no conflict between the putative naemd

10 Plaintiffs’ interest and that of the rem aining class members. The CCA Defendants contend this

11 element has not been met because “[P]laintiffs have credibility problem, unique background issues

12 that are not representative of the typical immigrant detainees, and likely have individual concerns that

13 are not shared by the rest of the class.” CCA Opp. at 14. The differences pointed out by CCA are not

14 relevant to determining whether the named Plaintiffs will adequately protect the interests ofthe class.

15 These differences or “individual concerns” do not giverise to a conflict of interest between the named

16 Plaintiffs and the class.

17

3. Rule 23(b)

18

Certification is appropriate pursuant to Rule23(b)(2) where “the party opposing the class has

19 acted or refused to act on grounds generally applicable to the class, thereby making appropriate final

20 injunctive relief or corresponding declaratory relief withrespect to the class as a whole.” Mt. for Cert.

21 at 9 (citing Fed.R.Civ.P. 23(b)(2)). The elements of subdivision 23(b)(2) are met.

22

Plaintiffs allege Defendants engaged in conduct that is “gene rally applicable to the class.”

23 According to Plaintiffs, Defendants’s policy of triple-celling Plaintiffs, among other things, created

24 a chronic condition of overcrowding that deprived all detainees housed at SDCF personal security,

25 health care, and safety. SAC at ¶ ¶ 41, 42. Plaintiffs seek injunctive and declaratory relief to enjoin

26 these practices. In light of these allegations and the relief sought, the requireemnts of 23(b)(2) clearly

27 are satisfied.

28

D. 8 U.S.C. § 1252(f) and Differences In Plaintiffs’ Immigration Status

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05cv1013

1

In their supplemental papers, Defendants argue (1) 8 U.S.C. § 1252( f) bars this case from

2 proceeding as an injunctive class action, and (2) di fferences in the im migration status of class

3 members preclude certification. Both arguments are unavailing for the reasons discussed below.

4

1. 8 U.S.C. § 1252(f)

5

Defendants contend “the plain language of § 1252(f)(1) divests this Court of subject m atter

6 jurisdiction over [P]laintiffs’ motion for certification” because that section limits the authority to

7 enjoin operation of certain detention statutes on a class wide basis to the Suprem e Court. Section

8 1252(f)(1) provides:

9

Regardless of the nature of the action or claim or identity of the ... parties

bringing the action, no court ( other than the Suprem e Court) shall have

10

jurisdiction or authority to enjoin or restrain the operation of the provisions of

part IV of this sub-chapter [8 U.S.C. §§ 1221-1231], other than with respect to

11

the application of such provisions to an individual alien against whom

proceedings under such part have been initiated.

12

13 In other w ords, according to D efendants, section 1252(f)(1) permits this Court to enjoin the

14 “operation” of certain detention statutes on an individual basis but not on a class wide basis.

15

Neither the plain l anguage of section 1252(f)(1) nor case law supports Defendants’

16 construction of the statute. Rather, under secti on 1252(f)(1), class wide injunctions are prohibited

17 only if they suspend or restrain the operation of certain provisions of immigration law. See Tefel v.

18 Reno, 972 F.Supp. 608, 618 (S.D. Fla. 1997) vacated on other grounds, 180 F.3d 1286 (11th Cir.

19 1999) (finding § 1252(f)(1) did not bar injunctive relief for a class because plaintiffs sought not to

20 enjoin the statute but “constitutional violations” and INS “policies and practices.”G);rimaldo v. Reno,

21 187 F.R.D. 643, 647-48 (D.Colo. 1999) (finding § 1252(f)(1) inapplicable where plaintiff sought to

22 convert complaint to a class action to “enjoin alleged constitutional violations by the INS in its

23 administration” of § 1226, not the operation of the staut te.) In a decision that has been withdrawn on

24 other grounds, the Ninth Circuit held section 1252(f )(1) is inapplicable where the injunctive relief

25 sought pertains not to “the operation of § 1231(b) but violations of the statute and to ‘ensure that the

26 provision is properly implemented.’” Ali v. Ashcroft, 346 F.3d 873 886 (9th Cir. 2003) (emphasis in

27 original).

28

Here, Plaintiffs do not seek to suspend or restrain the operation of any immigration statutes.

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05cv1013

1 Nor do they challenge the Government’s interpretation of any such statute. Rather, Plaintiffs claim

2 the manner in which the Government carries out its authority under the relevant statutes violates their

3 substantive due process rights. Thus, Plaintiffs do not seek to suspend the Government’s authority

4 to detain and rem ove aliens; they simply assert that the Governm ent is obligated to carry out its

5 statutory powers in a constitutional manner.

6

Defendants, however, contend this case “clearly falls” under the scope of section 1252(f)(1)

7 because class wide injunction, if granted, would “curtail[] [the Agency’s] m anagerial discretion”

8 relating to detention and removal of aliens. Fed. Supp. Brief at 5. In particular, Defendants argue the

9 injunction would impact the Agency’s decisions regarding where to house detainees and the manner

10 in which they are detained. Defendants’ inte rpretation of section 1252(f)(1) is overly broad, not

11 supported by case law and the text ofthe statute, and effectively would preclude a court fromissuing

12 injunctive relief in any m atter that tangentially related to detention of a liens. Accordingly,

13 Defendants’ interpretation of the statute is rej ected. This case f alls outside the jurisdictional

14 restrictions of section 1252(f)(1).

15

2. Differences In Detainees’ Immigration Status

16

Defendants argue the difference in immigration status of class members bars certification. The

17 proposed class – present and future detainees housedat SDCF – include two categories of detainees:

18 detainees who (1) already have entered the United States, and (2) are detained either before entry in

19 the United States or inside the United States butwithin 100 air miles of the border. The latter group

20 of aliens is referred to as “expedited removals” or “excludable aliens,” as they are deemed not to have

21 effected entry into the country evenhtough they are physically detained here.See Barrera-Echavarria

22 v. Rison, 44 F.3d 1441, 1450 (9th Cir 1995) (“entry fiction” provides that “[a]lthough aliens seeking

23 admission into the United States may physically beallowed within its borders pending a determination

24 of admissibility, such aliens are legally considered to be detained at the border and hence as never

25 having effected entry into this country”)(internal quotations and citations omitted), overruled on other

26 grounds, Xi v. I.N.S., 298 F.3d 832 (9th Cir. 2002).

27

The named Plaintiffs are all non-excludable aliens, whereas the proposed class contains both

28 excludable and non-excludable aliens. Defendants argue the two groups have different substantive

- 12 -

05cv1013

1 constitutional rights, and the Court will have to appyldifferent legal standards in determining whether

2 the detention practices in question violate each group’s rights. CCA Supp. Brief at 3. This

3 difference, according to Defendants, prevents Pl aintiffs from meeting Rule 23's r equirements of

4 adequacy of representation, typicality, and commonality.

5

As an initial m atter, the cases Defendants rely on to support their contention have lim ited

6 application – holding only that excludable aliens have le ss procedural rights than other aliens.

7 Defendants rely principally on Lynch v. Cannatella , 810 F.2d 1363 (5th Cir. 1987) . There, the

8 plaintiffs were sixteen Jam aican nationals who attem pted to enter the United States illegally by

9 stowing away aboard a grain barge bound for ports on t he Mississippi River. Plaintiffs were

10 discovered, and, subsequently, they sued federal and state officials claiming physical abuse prior to

11 being deported. The language in Lynch that Defendants seize upon is the following: “[e]xcludable

12 aliens . . . are situated differently even from illegal aliens who have landed in this country.” Id. at

13 1373. The court in Lynch, however, strongly suggested that the distinction between excludable and

14 non-excludable aliens relates only to theprocess of deportation: “The ‘entry fiction’ that excludable

15 aliens are to be treated as if detained at the bodrer despite their physical presence in the United States

16 determines the aliens’ rights with regard to immigration and deportation proceedings. It does not limit

17 the right of excludable aliens detained within United States territory to humane treatment.” Id.

18

Lynch makes clear that the basis of the “entry fi ction” is the “overriding conc ern that the

19 United States, as a sovereign, maintain its right to self-determination.” Lynch, 810 F.2d at 1373. In

20 other words, the conclusion that excludable alienshave less procedural rights promotes the sovereign

21 interest of the United States in adm itting or rejecting outsiders as it sees f it. The interest in self-

22 determination, however, “plays virtual ly no role” in determining whether the Constitution affords

23 excludable aliens substantive due process rights. See Id. at 1374. The Lynch court observed it could

24 not “conceive of any national interests” that would justify depriving the plaintiffs of the right to be

25 treated humanely merely because they are excludable aliens. Id. “[W]hatever due process rights

26 excludable aliens may be denied by virtue of th eir status, they are entitled under the due process

27 clauses of the fifth and fourteenth amendments to be free of gross physical abuse at the hands of state

28 or federal officials.” Id.

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05cv1013

1

Similarly, in Wong v. United States, 373 F.3d 952 (2003), the Nint h Circuit concluded the

2 entry fiction is “best seen [] as a fairly narrow doctrine that primarily determines procedures that the

3 executive branch must follow before turning an immigrant away.” Id. at 973. Reasoning “the entry

4 fiction does not preclude substantive constitutional protection,” id. at 971, the court observed the

5 doctrine appears “determinative of the procedural rightsof aliens with respect to their applicationsofr

6 admission,” and has not been used to “deny all constitutional rights to non-admitted aliens.” Id. at

7 973.

8

Although case law suggests the entry fiction is determinative only of procedural rights,

9 Defendants are correct that no court has explicitlyheld that excludable aliens enjoy the same bundle

10 of substantive rights as non-excludable aliens. But this Court need not answer that question.

11 Defendants suggest that while both groups of aliens may be entitled to humane treatment, one may

12 be entitled to better treatm ent than the other. In other words, Def endants essentially contend the

13 Government, consistent with Fifth Amendment due process rights, conceivably may be permitted to

14 triple-cell one group but not the other group. Thisis because excludable aliens are only entitled to be

15 free from “gross physical abuse” that results in “serious physical harm,” CCA Supp. Brief at 4, while

16 non-excludable aliens are entitled “to the ‘minimum civilized measure of life’s necessity.’” Id. But

17 the cases Defendants rely on neither support the claimthat the former standard applies to excludable

18 aliens while the latter applies to non-excludable aliens, nor that one standard is more stringent than

19 the other.

20

Moreover, even assuming the right to humane treatment is governed by different standards,

21 Defendants have not explained in what way any such differences should bar class certifi cation.

22 Defendants suggest the named Plaintiffs, all non-excludable aliens, may not adequately represent those

23 who are excludable. The Court disagrees. Differencesin the legal standards to be applied, if any, do

24 not suggest any conflict of interestbetween the named Plaintiffs and unnamed class members. Rather,

25 if the nam ed Plaintiffs are entitled to an injunction, the unnam ed excludable plaintiffs also will

26 benefit.1 Theoretically, under Defendants’ construct, it isonly problematic if the named Plaintiffs are

27 excludable aliens, and therefore they would not be ab le to adequately represent the unnamed non-

28

1 Defendants after all have argued that c ertification is unnecessary because the requested

relief, if granted, would apply to all detainees. See CCA Opp. at 9.

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05cv1013

1 excludable class members, who may be entitled to m ore rights or better treatment. The purported

2 differences between excludable and non-excludable aliens do not negate any of the requirements of

3 Rule 23.

4

IV.

5

CONCLUSION

6

For these reasons, Plaintiffs’ motion for class certification is GRANTED.

7

IT IS SO ORDERED.

8 DATED: August 17, 2007,

9

10 11 cc: 12

all parties; Judge Lewis

HON. DANA M. SABRAW United States District Judge

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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05cv1013

 
 Case 3:05-cv-01013-DMS-PCL Document 133 Filed 10/29/2007 Page 1 of 2

1

2

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11

12 ISAAC KIGONDU KINITI,

CASE NO. 05cv1013 DMS (PCL)

13

Plaintiff,

14

vs.

15

16 BARBARA WAGNER, et al.,

17

Defendants.

ORDER DENYING MOTION FOR RECONSIDERATION AND CLARIFYING ORDER GRANTING CLASS CERTIFICATION
(Doc. 115)

18

19

On August 17, 2007, this Court issued its Order granting Plaintiffs’ Motion for Class

20 Certification. (Doc. 112). Defendants have moved for reconsideration. After careful consideration of

21 the arguments, the Court DENIES Defendants’ motion. However, Defendants have pointed out an

22 error in the Order that does not affect the Court’s decision. Thus, this Order clarifies the August 17,

23 2007 Order.

24

In the August 17, 2007 Order, the Court incorrectly stated, “[i]n Hodgers-Durgin, [199 F.3d

25 1037, 1041 (9th Cir. 1999)], the court affirmed the district court’s finding that the plaintiffs had

26 standing to seek injunctive relief.” In fact, in that case, the Ninth Circuit affirmed the district court’s

27 finding that the plaintiffs did not have standing to seek injunctive relief. Id. at 1039. The Court’s error

28 was in focusing exclusively upon an analysis of the United States Constitution’s Article III standing

- 1 -

05cv1013

Case 3:05-cv-01013-DMS-PCL Document 133 Filed 10/29/2007 Page 2 of 2

1 requirements without fully analyzing the requirements for standing when seeking injunctive relief.

2 That analysis follows.

3

The court in Hodgers-Durgin held plaintiffs did not show a “likelihood of substantial and

4 immediate irreparable injury” as required when seeking an injunction against the Government. The

5 plaintiffs in Hodgers-Durgin sought injunctive relief from certain policies implemented by Border

6 Patrol. The court found plaintiffs frequently came into contact with Border Patrol agents, but each of

7 the two named plaintiffs were stopped only once in ten years. Those facts were insufficient to show

8 plaintiffs faced a “likelihood” of again being stopped by Border Patrol.

9

Conversely, in the instant case, as described in the August 17, 2007 Order, Defendants

10 admittedly engaged in triple-celling for several years. Moreover, Defendants continue to assert triple-

11 celling is not unconstitutional, and continue to engage in other allegedly unconstitutional practices

12 such as housing detainees in the common day room. (Order at 6:3-7). Finally, Defendants have failed

13 to assure the Court that the practice of triple-celling will not resume in the future. (Id. at 6:7-12). These

14 facts are sufficient to establish a likelihood of substantial and immediate irreparable injury.

15

Therefore, Plaintiffs have both Article III standing and standing to pursue injunctive relief as

16 a class. Accordingly, Defendant’s motion is DENIED.

17 IT IS SO ORDERED.

18

19 DATED: October 29, 2007

20

21

HON. DANA M. SABRAW

United States District Judge

22

23

24

25

26

27

28

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05cv1013

 
 Case 3:05-cv-01013-DMS-PCL Document 146-2 Filed 06/04/2008 Page 1 of 9

·.·

1

UNITED STATES DISTRICT COURT

2

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

3 ISAAC KIGONDU KINITI; SYLVESTER

OWINO; HERNAN ISMAEL DELGADO,

4 on behalf of themselves and all others

similarly situated,

5

Plaintiffs,

6

v.

7

Case No. 3:05-cv-1013-DMS-PCL

JULIE L. MYERS, Assistant Secretary, U.S.

8 Immigration and Customs Enforcement

(ICE); GARY E. MEAD, Acting Director,

9 Office of Detention and Removal Operations,

ICE; ROBIN BAKER, Director, San Diego

10 Field Office, ICE; JOHN GARZON, Officer-

in-Charge at San Diego Correctional Facility

11 (SDCF), ICE; CORRECTIONS

-....

CORPORATION OF AMERICA, INC.

. ::~

12 (CCA); FRED LAWRENCE, SDCF Warden,

CCA; CHARLES HOWARD, SDCF

13 Assistant Warden, CCA,

14

Defendants.

15 SETTLEMENT AGREEMENT
16 This Settlement Agreement ("Agreement") is entered into by all Plaintiffs and Defendants
17 18 in this class action lawsuit (collectively, "the Parties"). Plaintiffs are immigration detainees in the
19 custody of U.S. Immigration and Customs Enforcement ("ICE") at the San Diego Correctional

20 Facility ("SDCF" or "the Facility") in Otay Mesa, California. Defendants are officials and
21 employees of ICE and/or Corrections Corporation of America, Inc. ("CCA"), the private 22
company that manages this Facility. 23
WHEREAS, Plaintiffs moved for leave to file their Second Amended Complaint on 24 25 January 24, 2007 alleging that chronic overcrowding at SDCF, and in particular the practice of
26 "triple-celling" immigration detainees, had resulted in unconstitutional conditions of confinement

27 in violation of the Fifth Amendment to the United States Constitution and such leave was granted
28

SETTLEMENT AGREEMENT
3:05-cv-01013-DMS-PCL

Case 3:05-cv-01013-DMS-PCL Document 146-2 Filed 06/04/2008 Page 2 of 9

1 by the Court on February 27, 2007;

2

WHEREAS, Federal Defendants filed their Answer to the Second Amended Complaint on

3 July 23, 2007, denying Plaintiffs' allegations that "triple-ceiling" immigration detainees in ICE
4 custody results in unconstitutional conditions of confinement in violation of .the Fifth
5
Amendment, and further stating that since January 28, 2007, SDCF has been operating below its 6
7 "design capacity"1 for its immigration detainee population, and no immigration detainee at the

8 facility has been "triple-celled" since that date;

9

WHEREAS, Plaintiffs do not dispute that the overcrowded conditions of immigration

10 detainees at SDCF, as alleged in the Second Amended Complaint, has been relieved since

11 January 28, 2007, and that the practice of"triple-celling" immigration detainees in ICE custody is
12 presently not occurring at the Facility;
13

14

WHEREAS, Defendants have represented to Plaintiffs' Counsel and the Court on several

15 occasions-in correspondence, briefing and a formal declaration-that they have "no reasonable

16 expectation" to triple.:.cell or otherwise overcrowd immigration detainees in ICE custody at SDCF .·

17 again in the future;

18

19.

1 "Design Capacity" is defined herein as the occupational capacity for which

SDCF is designed to house, hold and/or detain, and is described as follows: SDCF

20

presently contains 6 units, each of which consists of three pods and has between

64-68 beds in each pod. The only exception to this is Unit A, which has 2 pods

21

with 32 beds in each (for a total of 64 beds) and two other pods with 68 beds

22

each. One ofthese six units (Unit B) has been designated for the U.S. Marshals

Service ("USMS") and another for San Diego County. Units F and L comprise

23

medical housing at SDCF, which provide additional beds for the care and service

of medically-unstable or unhealthy detainees. Unit F is comprised of 16 single-

24

occupancy cells. Unit L is comprised of two dormitory-style housing areas, each

containing 8 beds. As used herein, references to "design capacity" only refer to

25

pods and units where immigration detainees are housed. Defendants reserve the

26

right to move or transfer detainees to different units or exchange units with the

USMS and/or San Diego County to account for repairs, population changes, or

27

other priorities, on the condition that population levels will remain below design

capacity except as provided herein.

28

2.

SETTLEMENT AGREEMENT
3:05-cv-01013-DMS-PCL

Case 3:05-cv-01013-DMS-PCL Document 146-2 Filed 06/04/2008 Page 3 of 9

1

WHEREAS, Plaintiffs' motion for class certification was granted on August 17, 2007;

2

WHEREAS, the Parties believe it is in their mutual interests to settle this class action to

3 avoid the risks and burdens of further litigation and trial in this matter;
4 NOW, THEREFORE, in full settlement of this action and in considera~ion of the promises
5
6 and undertakings set forth herein, the sufficiency of which is hereby acknowledged, it is hereby

7 stipulated and agreed, by and between the undersigned, as follows:

8

I. Definitions

9

1. Pursuant to the Court's order granting class certification, Plaintiffs are "all

10 immigration detainees in ICE custody who are now or in the future will be confined at San Diego
11 Correctional Facility."
12 2. "Defendants" refers to all Federal Defendants and all CCA Defendants, as defined
13
14 below.

15

3. "Federal Defendants" are Julie L. Myers, Assistant Secretary, ICE; Gary E. Mead,

16 Acting Director, Office of Detention and Removal Operations, ICE; Robin Baker, Director, San

17 Diego Field Office, ICE; and John Garzon, Officer-in-Charge at SDCF, ICE.

18

4. "CCA Defendants" are Corrections Corporation of America, Inc.; Fred Lawrence,

19 Warden at SDCF; and Charles Howard, Assistant Warden at SDCF.
20
5. The "Effective Date" is the date upon which the Parties sign the Agreement. 21

22

6. "Triple-ceiling" refers to the practice of detaining, holding, or housing three

23 immigration detainees in ICE custody in a cell designed to house two immigration detainees in

24 ICE custody.

25

II. Term of Agreement

26
7. This Agreement, and all responsibilities and obligations contained herein, shall
27 terminate on January 28, 2009.
28

3.

SETTLEMENT AGREEMENT
3:05-cv-01013-DMS-PCL

Case 3:05-cv-01013-DMS-PCL Document 146-2 Filed 06/04/2008 Page 4 of 9

1

III. SDCF Population and Confirmatory Discovery

2

8. Defendants agree that for the term of this Agreement the population of

3 immigration detainees in ICE custody in each unit and pod at SDCF that is designated to detain,
4 hold, or house immigration detainees in ICE custody shall not exceed the design capacity for that
5
unit or pod, as described in Footnote 1 ofthis Agreement. 6

7

9. The Parties agree that previously scheduled discovery and pretrial proceedings as

8 set forth in the October 11, 2007 Case Management Conference Order, will be stayed to provide a

9 reasonable opportunity for Defendants to produce confirmatory discovery as set forth below, and

10 for Plaintiffs to review that discovery. This stay of proceedings shall not affect proceedings

11 necessary to implement the Agreement. Such confirmatory discovery shall be limited to
12 documents that relate to SDCF's detention of immigration detainees on or after June 1, 2008.
13

14

10. CCA Defendants agree to produce and make available to Plaintiffs the followi~¥ .

15 confirmatory discovery by June 3, 2008:

16

a. Documents confirming the dimensions of cells, hold rooms and living areas

17

that are used to house immigration detainees in ICE custody at SDCF;

18

b. Daily Pod Rosters showing the current housing and bed assignments of

19 immigration detainees in ICE custody at two-week intervals throughout the
20

confirmatory discovery period; and Holding Cell Receiving Log showing 21

22

the assignment of immigration detainees to hold rooms at SDCF for a 48-

23

hour period during each two-week interval during the confirmatory

24

discovery period.

25

c. Documents demonstrating that population levels of immigration detainees ,

26
in ICE custody at SDCF are at or below design capacity for the areas where

27 such immigration detainees in ICE custody are housed.
28

4.

SETTLEMENT AGREEMENT
3:05-cv-01013-DMS-PCL

Case 3:05-cv-01013-DMS-PCL Document 146-2 Filed 06/04/2008 Page 5 of 9

1

11. Plaintiffs agree to review the above confirmatory discovery and make a conclusion

2 regarding compliance by July 1, 2008.
3 12. If confirmatory discovery produced as set forth above confirms that Defendants
4 are complying with Paragraph 8 of the Agreement and that the population ~evels of immigration
5 detainees at SDCF do not exceed SDCF's design capacity, the Parties will stipulate to
6
7 administratively close this action for six (6) months, during which time the stay of discovery and

8 pretrial proceedings shall remain in effect. Nevertheless, in the event that changed circumstances

9 or emergency situations necessitate detaining, holding, or housing immigration detainees in ICE
10 custody at the Facility in excess of its design capacity for those areas where such immigration 11
detainees in ICE custody are housed, Defendants shall, within fifteen (15) days of such 12
unexpected situations, notify Plaintiffs' counsel to account for either: (i) unforeseeable changed 13 14 circumstances, or (ii) emergency situations. "Unforeseeable changed circumstances" include, but
15 are not limited to, unforeseeable increases in population levels due to accelerated immigration

16 enforcement efforts, or unanticipated strikes, lockouts, or other labor conditions or security

17 threats arising within the Facility. "Emergency situations" include, but are not limited to, Acts of
18 God, war, invasion, hostilities, natural disasters including local fires or other unforeseeable events 19
creating an immediate need to increase immigration population levels due to its impact on nearby . 20
detention facilities. The Parties agree that Defendants shall (i) not be liable for exceeding design 21
22 capaCity at any time that changed circumstances or emergency situations exist and (ii) make every
23 effort to reduce population levels to design capacity within 30 days after changed circumstances

24 or emergency situations have abated.

25

13. During the period of administrative closure, CCA Defendants agree to produce

26
updated confirmatory discovery, as described in Paragraph 10 of the Agreement, on October 1,
27
2008 and on January 9, 2009. 28

5.

SETTLEMENT AGREEMENT
3:05-cv-01013-DMS-PCL

Case 3:05-cv-01013-DMS-PCL Document 146-2 Filed 06/04/2008 Page 6 of 9

1

14. If confirmatory discovery produced while the case is administratively closed

2 confirms that Defendants are complying with Paragraph 8 of the Agreement and that the

3 population levels of immigration detainees in ICE custody at SDCF do not exceed design
4 capacity for those areas where such immigration detainees in ICE custody are housed, the Parties
5
will stipulate to dismiss this action, with prejudice, on January 28, 2009. 6

7

15. It is the Parties' understanding, intention and agreement that a dismissal with

8 prejudice pursuant to this Agreement would have no preclusive effect on any claim or issue raised

9 by any class member arising from conditions existing at SDCF subsequent to the date this lawsuit
10 is dismissed. 11
IV. Court Approval and Notice to the Class 12
16. The Parties acknowledge that Rule 23(e) of the Federal Rules of Civil Procedure . 13 14 requires that the Court must direct notice to the class and approve this Agreement before the •
15 claims of the certified class may be dismissed with prejudice pursuant to this Agreement.

16

17. Within 14 days of the Effective Date of this Agreement, the Parties will jointly

17 move the Court to approve and direct notice to the class, schedule a fairness hearing, and approve
18 the Agreement. The Parties agree to commence the process of confirmatory discovery and 19
review, as set forth in Paragraphs 9-11, while simultaneously seeking the Court's approval ofthe 20
manner of notice and this Agreement. In the event that the Court does not approve this 21
22 Agreement, the Parties agree to jointly move the Court for a new scheduling order for this Action.

23

18. Notice to the class will be accomplished by posting a written Notice at SDCF, in

24 English and in Spanish, as follows2 : Notices will be posted in each ICE housing unit/pod on the

25 existing detainee notice boards. Additionally, notice will be provided to immigration detainees in 26
ICE custody who are housed in segregation/protective custody at the time of initial Notice 27

28 2 A proposed Notice is attached as Exhibit 1 to the Settlement Agreement.

6.

SETTLEMENT AGREEMENT
3:05-cv-01013-DMS-PCL

Case 3:05-cv-01013-DMS-PCL Document 146-2 Filed 06/04/2008 Page 7 of 9

1 distribution by distributing a Notice to each segregation/protective custody detainee. Notice will
2 also be distributed to immigration detainees in ICE custody who are housed in the medical unit at
3 the time of initial Notice distribution by distributing a Notice to each ICE medical unit detainee.
4 Following the initial segregation/protective custody Notice distribution, and thereafter during the
5 time period set forth in Paragraph 19, below, new incoming segregation/protective custody
6
7 immigration detainees in ICE custody will be provided a copy of the Notice upon entry to the

8 segregation/protective custody unit.

9

19. The Notice shall be posted and/or provided to immigration detainees in ICE

10 custody, as stated above, no later than ten (10) days following the Court's approval of the form

11 and manner of the Notice. The Notice shall remain posted until the date that objections to the
12

Agreement are due by order of the Court. 13

14

v. Protection of Discovery Material

15

20. Defendants agree to preserve documents responsive to Plaintiffs' First Set of

16 Requests for Production of Documents during the term of this Agreement.

17

21. The Parties agree that confirmatory discovery produced pursuant to Paragraphs 9-

18 13 above shall be subject to the Stipulated Protective Order executed by the Parties and submitted
19 for the Court's approval.3
20
VI. Attorneys' Fees and Costs 21

22

22. The Parties agree to bear their own attorneys' fees and costs in this action.

23 Plaintiffs agree that they shall not seek, solicit, or request attorneys' fees and/or litigation costs

24 provided under the Equal Access to Justice Act, 28 U.S.C. § 2412, or any other provision.

25

VII. Admission of Liability

26
23. This Agreement does not constitute and shall not be construed or viewed as an
27

28 3 A proposed Stipulated Protective Order is attached as Exhibit 2 to the Settlement Agreement.

7.

SETTLEMENT AGREEMENT
3:05-cv-01013-DMS-PCL

Case 3:05-cv-01013-DMS-PCL Document 146-2 Filed 06/04/2008 Page 8 of 9

i.

.
1 admission ofany wrongdoing or liability by any p.ar,ty.

2

vm. Modification of.Aereement

3

24. This Agreent~t constitutes the entire agreement ~ong the Parties as to all c

4

raised by Plaintiffs in this action, and supersedes all prior agreements, representationS, 5

6 statements, promises, covenants, and understandings, whether oral or written, express or im. lied,

7 with respect to the su:I>ject matter h~f.

II ·
l

8

· 25. This is an integrated agreement and may not'be altered or modified, except :by a

9 · writing signed by all pl;irties in interest at the time of authorization ~d modification.

10

IX. Suecessors

11

an 26. This Agreement shall. be binding on succ~sors; assignees, employees, d all

12

those working for or on behalf ofDef~ndants and Pl~ffs. 13

..!. '

. li'

.

14 15

~·-

16 Tom-Tsvi M. Jawetz

·

.17

Ame.ri.®.n Civil Liberties Union Foundation ·National Prison Project

18

915 15th StreetNW> 7th Floor Washington, DC 20'005

•i

19 Tel: (202) 548-6611

20 Couns?l[orPkiintifft

. ·) . J i:J(i A

21

BDya:niel

./.~{~
s-="tru:.:..:....c.,...k-·_::....__ _ __

22 Rachel Love

23

Jones, Skelton & Hochub", P.L.C. 2901 North Central Ave., Suite 800

24

Phoenix, AZ 85012 . Tel; (602) 263-17{>0

25 Coimselfor CCA Defendants

26 27

By:~Ctt-
Grego~

28 Acting Assistant Attorney General

I ,,
. Date: --ru_rle. 4 2-00g .
. '

8.

SETrLEMxNT AGRE 3:05-CV-01013-DMs- .

• ·- ~ ·--···- . . . .. ... -··- .......:.... ~.. -· ..~······-~--..- - - - - - - - - - ·---·--....._. ...,...--:'!"_''---.- -~--- --·-·- ____...,__ ,... .

Case 3:05-cv-01013-DMS-PCL Document 146-2 Filed 06/04/2008 Page 9 of 9

1 Civil Division Victor M. Lawrence
2 Principal Assistant Director, District Court Section Samuel P. Go
3 Trial Attorney, District Court Section Office of Immigration Litigation
4 Civil Division, U.S. Department of Justice P.O. Box 868, Ben Franklin Station
5 Washington, DC 20044 Tel: (202) 353-9923
6 Counselfor Federal Defendants
7
8
9
10
11
12
13
14
·15
16
17
18
19
20
21
22
23
24
25
26
27
28
9.

SETTLEMENT AGREEMENT
3:05-cv-01013-DMS-PCL

 
 CLOSED, IFP
U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:05−cv−01013−DMS−PCL

Kiniti v. Wagner, et al Assigned to: Judge Dana M Sabraw Referred to: Magistrate Judge Peter C. Lewis Demand: $0 Case in other court: USCA, 08−56677 Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Isaac Kigondu Kiniti on behalf of themselves and all others similarly situated

Date Filed: 05/09/2005 Date Terminated: 01/28/2009 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Anthony Michael Stiegler Cooley Godward Kronish 4401 Eastgate Mall San Diego , CA 92121−9109 (858)550−6000 Fax: (858)550−6420 Email: stiegleram@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gouri Bhat National Prison Project of the ACLU 915 15th Street NW 7th Floor Washington , DC 20005 (202)548−6611 Email: gbhat@npp−aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
John David Blair−Loy ACLU of San Diego and Imperial Counties PO Box 87131 San Diego , CA 92138 (619)232−2121 Fax: (619)232−0036 Email: dblairloy@aclusandiego.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judy Rabinovitz ACLU Immigrants Rights Project 125 Broad Street 18th Floor New York , NY 10004 (212)549−2618 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kathryn Kelley Cooley Godward Kronish 4401 Eastgate Mall San Diego , CA 92121−9109 (858)550−6000 Fax: (858)550−6420 Email: mkkelley@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jose Morales−Vargas on behalf of themselves and all others similarly situated
Plaintiff Sylvester Owino on behalf of themselves and all others similarly situated
Plaintiff Hernan Ismael Delgado on behalf of themselves and all others similarly situated

Tom−Tsvi M Jawetz National Prison Project of the ACLU 915 15th Street NW 7th Floor Washington , DC 20005 (202)548−6610 Email: tjawetz@npp−aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Fathi National Prison Project of the ACLU 915 15th Street NW 7th Floor Washington , DC 20005 (202)548−6609 Email: dfathi@npp−aclu.org TERMINATED: 09/24/2007 ATTORNEY TO BE NOTICED
represented by John David Blair−Loy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tom−Tsvi M Jawetz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gouri Bhat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John David Blair−Loy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tom−Tsvi M Jawetz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Fathi (See above for address) TERMINATED: 09/24/2007 ATTORNEY TO BE NOTICED
represented by Gouri Bhat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John David Blair−Loy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Any Castro on behalf of themselves and all others similarly situated
Plaintiff Fred Ngugi
V. Defendant . Barbara Wagner Warden TERMINATED: 08/04/2005
Defendant

Tom−Tsvi M Jawetz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Fathi (See above for address) TERMINATED: 09/24/2007 ATTORNEY TO BE NOTICED
represented by John David Blair−Loy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tom−Tsvi M Jawetz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Tom−Tsvi M Jawetz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel P Struck Jones Skelton and Hochuli 2901 North Central Avenue Suite 800 Phoenix , AZ 85012 (602)263−7323 Fax: (602)200−7811 Email: dstruck@jshfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell R Yurk Jones Skelton &Hochuli PLC 2901 North Central Avenue Suite 800 Phoenix , AZ 85012 (602)263−1709 Fax: (602)200−7834 Email: ryurk@jshfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher G Stuart Jones Skelton and Hochuli 2901 North Central Avenue Suite 800 Phoenix , AZ 85012 (602)263−1700 TERMINATED: 01/28/2008 ATTORNEY TO BE NOTICED

− Harper Officer TERMINATED: 02/27/2007
Defendant − Alvarez Officer TERMINATED: 02/27/2007

represented by Daniel P Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Monks Klinedinst PC 501 West Broadway Suite 600 San Diego , CA 92101−3544 (619)239−8131 Fax: (619)238−8707 Email: dmonks@klinedinstlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell R Yurk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher G Stuart (See above for address) TERMINATED: 01/28/2008 ATTORNEY TO BE NOTICED
Micaela P Shelton Kirby Noonan Lance &Hoge, LLP 350 Tenth Avenue Suite 1300 San Diego , CA 92101−8700 (619)231−8666 Fax: (619)231−9593 Email: mshelton@knlh.com ATTORNEY TO BE NOTICED
Rachel Love Jones, Skelton &Hochuli 2901 North Central Avenue Suite 800 Phoenix , AZ 85012 (602)263−1700 Fax: (602) 200−7857 Email: rlove@jshfirm.com ATTORNEY TO BE NOTICED
represented by Daniel P Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell R Yurk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher G Stuart (See above for address) TERMINATED: 01/28/2008 ATTORNEY TO BE NOTICED
Rachel Love (See above for address)

Defendant − Winters Officer TERMINATED: 02/27/2007
Defendant Payne Officer TERMINATED: 02/27/2007
Defendant Teran Officer

ATTORNEY TO BE NOTICED
represented by Daniel P Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Monks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell R Yurk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher G Stuart (See above for address) TERMINATED: 01/28/2008 ATTORNEY TO BE NOTICED
Micaela P Shelton (See above for address) ATTORNEY TO BE NOTICED
Rachel Love (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel P Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Monks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell R Yurk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher G Stuart (See above for address) TERMINATED: 01/28/2008 ATTORNEY TO BE NOTICED
Micaela P Shelton (See above for address) ATTORNEY TO BE NOTICED
Rachel Love (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel P Struck (See above for address)

TERMINATED: 02/27/2007
Defendant Correction Corporation of America TERMINATED: 08/04/2005
Defendant Julie L Myers Assistant Secretary, U.S. Immigration and Customs Enforcement (ICE)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Monks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell R Yurk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher G Stuart (See above for address) TERMINATED: 01/28/2008 ATTORNEY TO BE NOTICED
Micaela P Shelton (See above for address) ATTORNEY TO BE NOTICED
Rachel Love (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel P Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell R Yurk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher G Stuart (See above for address) TERMINATED: 01/28/2008 ATTORNEY TO BE NOTICED
represented by U S Attorney CV U S Attorneys Office Southern District of California Civil Division 880 Front Street Suite 6253 San Diego , CA 92101 (619)557−5662 Fax: (619)557−7122 Email: Efile.dkt.civ@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel P Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell R Yurk (See above for address) LEAD ATTORNEY

Defendant John P. Torres Director, Office of Detention and Removal Operations, ICE
Defendant Ron Smith Director, San Diego Field Office, ICE

ATTORNEY TO BE NOTICED
Samuel P Go US Department of Justice, Civil Division 1331 Pennsylvania Avenue NW Washington , DC 20044 (202)353−9923 Email: samuel.go@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor M Lawrence US Department of Justice 1331 Pennsylvania Avenue North West Washington , DC 20044 (202)305−8788 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher G Stuart (See above for address) TERMINATED: 01/28/2008 ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel P Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell R Yurk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor M Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher G Stuart (See above for address) TERMINATED: 01/28/2008 ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel P Struck (See above for address) LEAD ATTORNEY

Defendant Anthony Cerone Officer−in−Charge at the San Diego Correctional Facility (SDCF)
Defendant Corrections Corporation of America, Inc. (CCA)

ATTORNEY TO BE NOTICED
Russell R Yurk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor M Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher G Stuart (See above for address) TERMINATED: 01/28/2008 ATTORNEY TO BE NOTICED
represented by Daniel P Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell R Yurk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor M Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher G Stuart (See above for address) TERMINATED: 01/28/2008 ATTORNEY TO BE NOTICED
represented by Daniel P Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell R Yurk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor M Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Joe Easterling SDCF Warden, CCA TERMINATED: 12/20/2007
Defendant Charles Howard SDCF Assistant Warden, CCA
Defendant Fred Lawrence SDCF Warden, CCA Amicus Department of Homeland Security

Christopher G Stuart (See above for address) TERMINATED: 01/28/2008 ATTORNEY TO BE NOTICED
represented by Russell R Yurk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor M Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher G Stuart (See above for address) TERMINATED: 01/28/2008 ATTORNEY TO BE NOTICED
represented by Daniel P Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell R Yurk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor M Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher G Stuart (See above for address) TERMINATED: 01/28/2008 ATTORNEY TO BE NOTICED
represented by Daniel P Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Samuel P Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas C Stahl U S Attorneys Office Southern District of California 880 Front Street Room 6293 San Diego , CA 92101 (619)557−7140 Fax: (619)557−7122

Date Filed 05/09/2005 05/09/2005 08/04/2005
09/23/2005 09/23/2005 12/01/2005 05/10/2006 05/25/2006 05/25/2006 05/26/2006 05/30/2006

Email: Thomas.Stahl@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

#

Docket Text

1 Complaint Filed; (referred to Magistrate Judge Peter C. Lewis ) Receipt No/Amt of Fee: Fee not paid, IFP submitted (dkt clerk) (Entered: 05/11/2005)

2 Notice of Motion and Motion by plaintiff Isaac Kigondu Kiniti to proceed in forma pauperis [ motion(s) referred to Judge Dana M. Sabraw ] (dkt clerk) (Entered: 05/11/2005)

3 Order by Judge Dana M. Sabraw granting motion to proceed in forma pauperis [2−1]; all claims in the Complaint against all defendants are dismissed sua sponte without prejudice for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. 1915(e)(2), with the exception of pla's Fifth Amendment claim against defendants Alvarez and Payne, and his claim for retaliation against dft Teran; terminating party Correction Corp, party Winters, party Harper, party Barbara Wagner ; pla is granted forty−five days from the date this Order is stamped "filed" to file a First Amended Complaint or to inform the Court that he does not wish to amend his Complaint and wishes the Court to order the USM to serve a copy of the summons and Complaint on defendants Alvarez, Payne and Teran only, pla is cautioned that if he chooses to proceed with his original complaint against these defendants only, he will forfeit the opportunity to amend his Complaint with respect to the claims dismissed in this Order (kaj) (Entered: 08/05/2005)

4 Motion by Isaac Kigondu Kiniti to extend time ti file 1st amd cmp ; [motion referred to Judge Dana M. Sabraw] (cag) (Entered: 09/23/2005)

5 Order by Judge Dana M. Sabraw granting motion to extend time to file 1st amd cmp [4−1] and denying request for appt of counsel [4−1]; 1st amd cmp due no later than 60 days from date of this order (cag) (Entered: 09/23/2005)

6 DISCREPANCY ORDER by Judge Dana M. Sabraw rejecting document: letter from plaintiff Isaac Kigondu Kiniti, non−compliance with local rule 83.9 (cag) (Entered: 12/01/2005)

7 Notice of hearing (In−House); Order to show cause hrg 4m and Order to show cause hrg 41.1 set for 10:30 5/26/06 before Judge Dana M. Sabraw (cag) (Entered: 05/10/2006)

8 DISCREPANCY ORDER by Judge Dana M. Sabraw accepting document: motion to reconsider from plaintiff Isaac Kigondu Kiniti, non−compliance with local rule 5.1, document is to be filed nunc pro tunc to the date received (cag) (Entered: 05/25/2006)

9 Motion by Isaac Kigondu Kiniti for reconsideration ; [motion referred to Judge Dana M. Sabraw]; NUNC PRO TUNC to 5/19/06 (cag) (Entered: 05/25/2006)

10 Minutes: Enter Order by Judge Dana M. Sabraw Order to show cause hrg off calendar , Ct to file order. Court Reporter: L. Pence (cag) (Entered: 05/31/2006)

11 Order by Judge Dana M. Sabraw denying motion for reconsideration [9−1]; Order to show cause 41.1 reset for 10:30 8/4/06 before Judge Dana M. Sabraw , 1st amd cmp due by 7/7/06 (cag) (Entered: 05/31/2006)

06/29/2006 07/27/2006
08/01/2006 08/01/2006
08/01/2006 08/01/2006 08/01/2006 08/24/2006 09/28/2006 10/12/2006 10/12/2006 10/12/2006 10/12/2006 10/30/2006 10/30/2006 11/06/2006
12/06/2006
12/07/2006

12 1st Amended complaint [1−1] (cag) (Entered: 06/30/2006)
13 Order by Judge Dana M. Sabraw directing USM to effect service of summons and 1st amd cmp upon dfts Harper, Alvarez, Winters, Payne and Teran (ifp pkg mailed) (cag) (Entered: 08/01/2006)
14 Summons on 1st amd cmp issued as to Harper, Alvarez, Winters, Payne, Teran (cag) (Entered: 08/01/2006)
15 DISCREPANCY ORDER by Judge Dana M. Sabraw accepting document: notice of change of address from plaintiff Isaac Kigondu Kiniti, document is to be filed nunc pro tunc to the date received (cag) (Entered: 08/01/2006)
16 Notice by Isaac Kigondu Kiniti of change of address; NUNC PRO TUNC to 7/27/06 (cag) (Entered: 08/01/2006)
17 Notice of hearing (In−House): Order to show cause hrg 4m set for 10:30 8/25/06 before Judge Dana M. Sabraw (cag) (Entered: 08/02/2006)
18 Notice of hearing (In−House): Order to show cause hrg 41.1 vacated 10:30 8/4/06 (cag) (Entered: 08/02/2006)
19 Minutes: Enter Order by Judge Dana M. Sabraw: Order to show cause hrg 4m vacated 10:30 8/25/06 ; Court Reporter: n/a (cag) (Entered: 08/24/2006)
20 WAIVER OF SERVICE OF SUMMONS Returned Executed by Isaac Kigondu Kiniti. Harper waiver sent on 8/29/2006, answer due 10/28/2006. (cag) (Entered: 09/28/2006)
21 WAIVER OF SERVICE Returned Executed by Isaac Kigondu Kiniti. Defendant Payne waiver sent on 8/29/2006, answer due 10/28/2006. (cag) (Entered: 10/12/2006)
22 WAIVER OF SERVICE Returned Executed by Isaac Kigondu Kiniti. Defendant Teran waiver sent on 8/29/2006, answer due 10/28/2006. (cag) (Entered: 10/12/2006)
23 WAIVER OF SERVICE Returned Executed by Isaac Kigondu Kiniti. Defendant Winters waiver sent on 8/29/2006, answer due 10/28/2006. (cag) (Entered: 10/12/2006)
24 Summons Returned Unexecuted by Isaac Kigondu Kiniti as to Alvarez. (cag) (Entered: 10/13/2006)
25 ANSWER to 1st Amended Complaint by Defendants Harper, Winters, Payne, Teran Harpe (cag) (Entered: 10/31/2006)
26 DEMAND for Trial by Jury by Defendants Harper, Winters, Payne, Teran. (cag) (Entered: 10/31/2006)
27 NOTICE and ORDER setting Early Neutral Evaluation for 12/6/2006 01:45 PM in El Centro before Magistrate Judge Peter C. Lewis. Signed by Judge Peter C. Lewis on 11/6/06. (cag) (Entered: 11/06/2006)
29 Minute Entry for proceedings held before Judge Peter C. Lewis : Early Neutral Evaluation Conference held on 12/6/2006. Case Management Conference set for 1/24/2007 01:45 PM before Judge Dana M. Sabraw. (Plaintiff Attorney Isaac Kiniti, pro se).(Defendant Attorney Micaela Shelton and Rachel Halvorson). (erf, ) (Entered: 12/08/2006)
28 ORDER Following Early Neutral Evaluation Conference, Setting Rule 26 Compliance and Notice of Case Management Conference. ENE Conference was held 12/06/06 at 1:30 pm. Rule 26 Conference shall be completed before 01/03/07. Date of

12/28/2006 01/12/2007 01/19/2007 01/23/2007
01/24/2007 01/24/2007 01/24/2007 01/24/2007 01/25/2007
01/29/2007 01/29/2007 01/29/2007 01/29/2007 01/31/2007

initial disclosure pursuant to Rule 26 shall occur before 01/19/07. Discovery Plan shall be lodged before 01/12/07. Case Management Conference set for 1/24/2007 01:45 PM in El Centro before Magistrate Judge Peter C. Lewis.Signed by Judge Peter C. Lewis on 12/07/06. (jxj) (Entered: 12/07/2006)
30 PRO HAC VICE APPOINTED: Rachel Love Halvorson appearing for Defendants Harper, Alvarez, Winters, Payne, Teran (jxj) (Entered: 12/28/2006)
31 MOTION for Discovery PROPOSED CASE MANAGEMENT PLAN AND REQUEST FOR EXTENSION OF TIME by Harper. (Monks, David) (Entered: 01/12/2007)
32 ACKNOWLEDGEMENT OF SERVICE Executed January 19, 2007 (Initial Disclosure Statement) Acknowledgement filed by Harper, Winters, Payne, Teran. (Monks, David) (Entered: 01/19/2007)
33 The Case Management Conference set for 1/24/2007 is vacated and reset for 2/7/2007 at 01:45 PM. The CMC shall be telephonic, Defendants will initiate the conference call to all parties to (760) 353−4227. Signed by Judge Peter C. Lewis on January 23, 2007. (Brehm, Matthew) (Entered: 01/23/2007)
34 NOTICE of Appearance by John David Blair−Loy on behalf of Isaac Kigondu Kiniti (Blair−Loy, John) (Entered: 01/24/2007)
35 MOTION to Amend/Correct 12 Amended Complaint and Add Parties by Isaac Kigondu Kiniti. (Attachments: # 1 Notice of Motion# 2 Memo of Points and Authorities # 3 Proposed Second Amended Complaint)(Blair−Loy, John) (Entered: 01/24/2007)
36 MOTION to Certify Class Under Proposed Second Amended Complaint by Isaac Kigondu Kiniti. (Attachments: # 1 Notice of Motion# 2 Memo of Points and Authorities)(Blair−Loy, John) (Entered: 01/24/2007)
37 CERTIFICATE OF SERVICE by Isaac Kigondu Kiniti (Blair−Loy, John) (Entered: 01/24/2007)
38 ORDER Setting Hearing Date and Briefing Schedule re 35 MOTION to Amend/Correct, 36 MOTION for Class Certification. Motion Hearing for Motion to Amend set for 2/23/2007 01:30 PM in Courtroom 10 before Judge Dana M. Sabraw. Motion Hearing for Motion for Class Certification set for 4/13/2007 01:30 PM in Courtroom 10 before Judge Dana M. Sabraw.Signed by Judge Dana M. Sabraw on 01/25/07. (jxj) (Entered: 01/25/2007)
39 PRO HAC VICE APPOINTED: David Fathi appearing for Plaintiff Isaac Kigondu Kiniti (jxj) (Entered: 01/29/2007)
40 PRO HAC VICE APPOINTED: Gouri Bhat appearing for Plaintiff Isaac Kigondu Kiniti (jxj) (Entered: 01/29/2007)
41 PRO HAC VICE APPOINTED: Tom−Tsvi M Jawetz appearing for Plaintiff Isaac Kigondu Kiniti (jxj) (Entered: 01/29/2007)
42 ORDER Denying Plaintiff's 31 Motion for an Extension of Time. Signed by Judge Peter C. Lewis on 01/29/07. (jxj) (Entered: 01/30/2007)
43 Case Management Conference set for 2/7/2007 is continued to 5/2/2007 01:45 PM in El Centro before Magistrate Judge Peter C. Lewis. Signed by Judge Peter C. Lewis on January 31, 2007. (mxb, ) (Entered: 01/31/2007)

02/01/2007 02/01/2007 02/07/2007 02/07/2007 02/07/2007 02/13/2007 02/14/2007
02/14/2007 02/15/2007 02/15/2007 02/15/2007
02/20/2007 02/27/2007
02/27/2007
02/28/2007 02/28/2007

44 NOTICE of Appearance by Mary Kathryn Kelley on behalf of Isaac Kigondu Kiniti (Kelley, Mary) (Entered: 02/01/2007)
45 NOTICE of Appearance by Anthony Michael Stiegler on behalf of Isaac Kigondu Kiniti (Stiegler, Anthony) (Entered: 02/01/2007)
46 RESPONSE in Opposition re 35 MOTION to Amend/Correct 12 Amended Complaint and Add Parties filed by Harper, Winters, Payne, Teran. (Halvorson, Rachel) (Entered: 02/07/2007)
47 MOTION for Leave to File Amicus Brief by Department of Homeland Security. (Attachments: # 1 Memo of Points and Authorities # 2 Exhibit)(Stahl, Thomas) (Entered: 02/07/2007)
48 NOTICE by Department of Homeland Security re 47 MOTION for Leave to File Amicus Brief Proof of Service (Stahl, Thomas) (Entered: 02/07/2007)
49 PRO HAC VICE APPOINTED: Judy Rabinovitz appearing for Plaintiff Isaac Kigondu Kiniti (jxj) (Entered: 02/13/2007)
50 REPLY to Response to Motion re 35 MOTION to Amend/Correct 12 Amended Complaint and Add Parties and Attached Declaration filed by Isaac Kigondu Kiniti. (Attachments: # 1 Declaration)(Bhat, Gouri) (Entered: 02/14/2007)
51 MOTION for Leave to File Excess Pages by Isaac Kigondu Kiniti. (Attachments: # 1 Notice of Motion# 2 Memo of Points and Authorities)(Bhat, Gouri) (Entered: 02/14/2007)
52 CERTIFICATE OF SERVICE by Isaac Kigondu Kiniti re 50 Reply to Response to Motion, 51 MOTION for Leave to File Excess Pages (Bhat, Gouri) (Entered: 02/15/2007)
53 ORDER Granting Plaintiff Leave to Exceed the Page Limit, re 51 Motion for Leave to File Excess Pages. Signed by Judge Dana M. Sabraw on 02/15/07. (jxj) (Entered: 02/15/2007)
54 ORDER Re: Oral Argument. Motion Hearing currently scheduled for 02/23/07 at 1:30 pm, re 35 Motion. The Court finds this matter suitable for submission without oral argument. Accordingly, no appearances are required at this time. Signed by Judge Dana M. Sabraw on 02/15/07. (jxj) (Entered: 02/15/2007)
55 PRO HAC VICE APPOINTED: Daniel P Struck appearing for Defendants (jxj) (Entered: 02/21/2007)
56 ORDER Granting Plaintiff's 35 Motion to Amend first Amended Complaint and Add Parties. Plaintiff's class certification motion shall be heard on 05/25/07 at 1:30pm. Defendant's shall file their opposition to the motion by 05/04/07. Plaintiffs shall file their reply by 05/14/07. Signed by Judge Dana M. Sabraw on 02/27/07. (jxj) (Entered: 02/27/2007)
57 Second AMENDED COMPLAINT against Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone, Corrections Corporation of America, Inc., Joe Easterling, Charles Howard. Filed by Isaac Kigondu Kiniti, Jose Morales−Vargas, Sylvester Owino, Hernan Ismael Delgado, Any Castro.(jxj)(bar, ). (Entered: 02/27/2007)
58 Summons Issued as to Anthony Cerone, Corrections Corporation of America, Inc., Joe Easterling, Charles Howard. (jxj) (Entered: 03/02/2007)
59 Summons Issued as to Julie L Myers, John P. Torres, Ron Smith, U.S. Attorney and U.S. Attorney General (jxj) (Entered: 03/02/2007)

03/05/2007
03/08/2007
03/08/2007 03/08/2007 03/08/2007 03/08/2007 03/14/2007 03/27/2007 04/06/2007
04/25/2007
04/25/2007
04/26/2007 04/26/2007

60 SUMMONS Returned Executed by Isaac Kigondu Kiniti, Jose Morales−Vargas, Sylvester Owino, Hernan Ismael Delgado, Any Castro. Julie L Myers served on 3/2/2007, answer due 5/1/2007; John P. Torres served on 3/2/2007, answer due 5/1/2007; Ron Smith served on 3/2/2007, answer due 5/1/2007. (jxj) (Entered: 03/06/2007)
61 SUMMONS Returned Executed by Isaac Kigondu Kiniti, Jose Morales−Vargas, Sylvester Owino, Hernan Ismael Delgado, Any Castro. Julie L Myers served on 3/6/2007, answer due 5/7/2007; John P. Torres served on 3/6/2007, answer due 5/7/2007; Ron Smith served on 3/6/2007, answer due 5/7/2007; Anthony Cerone served on 3/6/2007, answer due 5/7/2007. (Bhat, Gouri) (Entered: 03/08/2007)
62 SUMMONS Returned Executed by Isaac Kigondu Kiniti, Jose Morales−Vargas, Sylvester Owino, Hernan Ismael Delgado, Any Castro. (Bhat, Gouri) (Entered: 03/08/2007)
63 SUMMONS Returned Executed by Isaac Kigondu Kiniti, Jose Morales−Vargas, Sylvester Owino, Hernan Ismael Delgado, Any Castro. (Bhat, Gouri) (Entered: 03/08/2007)
64 SUMMONS Returned Executed by Isaac Kigondu Kiniti, Jose Morales−Vargas, Sylvester Owino, Hernan Ismael Delgado, Any Castro. (Bhat, Gouri) (Entered: 03/08/2007)
65 SUMMONS Returned Executed by Isaac Kigondu Kiniti, Jose Morales−Vargas, Sylvester Owino, Hernan Ismael Delgado, Any Castro. (Bhat, Gouri) (Entered: 03/08/2007)
66 PRO HAC VICE APPOINTED: Samuel P Go appearing for Amicus Department of Homeland Security, Defendants Julie L Myers, John P. Torres, Ron Smith (jxj) (Entered: 03/14/2007)
67 PRO HAC VICE APPOINTED: Victor M Lawrence appearing for Defendants Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone, Corrections Corporation of America, Inc., Joe Easterling, Charles Howard (jxj) (Entered: 03/27/2007)
68 WAIVER OF SERVICE Returned Executed by Corrections Corporation of America, Inc., Joe Easterling, Charles Howard. Corrections Corporation of America, Inc. waiver sent on 3/8/2007, answer due 5/7/2007; Joe Easterling waiver sent on 3/8/2007, answer due 5/7/2007; Charles Howard waiver sent on 3/8/2007, answer due 5/7/2007. (Struck, Daniel) (Entered: 04/06/2007)
69 PRO HAC VICE APPOINTED: Russell R Yurk appearing for Defendants Barbara Wagner, Harper, Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone, Corrections Corporation of America, Inc., Joe Easterling, Charles Howard, Alvarez, Winters, Payne, Teran, Correction Corporation of America (jcj) (Entered: 04/25/2007)
70 PRO HAC VICE APPOINTED: Christopher G Stuart appearing for Defendants Barbara Wagner, Harper, Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone, Corrections Corporation of America, Inc., Joe Easterling, Charles Howard, Alvarez, Winters, Payne, Teran, Correction Corporation of America (jcj) (Entered: 04/25/2007)
71 ORDER Cancelling Deadline.The Case Management Conference scheduled for 5/2/07 is cancelled. Signed by Judge Peter C. Lewis on 04/26/07. (ktk) (Entered: 04/26/2007)
72 Ex Parte MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion for Class Certification by

04/27/2007 05/01/2007
05/04/2007 05/04/2007 05/10/2007 05/21/2007
05/21/2007 05/21/2007
05/30/2007

Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone. (Go, Samuel) (Entered: 04/26/2007)
73 RESPONSE to Motion re 72 Ex Parte MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion for Class Certification filed by Isaac Kigondu Kiniti, Jose Morales−Vargas, Sylvester Owino, Hernan Ismael Delgado, Any Castro. (Bhat, Gouri) (Entered: 04/27/2007)
74 ORDER Granting Defendants' 72 Ex Parte Application for Extension of Time to File Response/Reply; and Setting Briefing Schedule and Oral Argument. With respect to the motion to dismiss, Defendants shall file their motion by 05/04/07. Plaintiffs shall file their opposition by 05/21/07. Defendants shall file their reply by 06/01/07. The motion shall be heard on 06/15/07, at 1:30 pm. With respect to the motion for class certification, Defendants shall file their opposition by 06/08/07. Plaintiffs shall file their reply by 06/22/07. The motion shall be heard on 07/06/07, at 1:30 pm. Signed by Judge Dana M. Sabraw on 05/01/07. (jcj) (Entered: 05/01/2007)
75 MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Second Amended Complaint by Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone. (Attachments: # 1 Memo of Points and Authorities in Support of Defendants' Motion to Dismiss# 2 Declaration of Timothy L. Perry in Support)(Go, Samuel) (Entered: 05/04/2007)
76 MOTION to Dismiss Defendant Corrections Corporation of America, Joe Easterling and Charles Howard's Motion to Dismiss Plaintiffs' Second Amended Complaint by Corrections Corporation of America, Inc., Joe Easterling, Charles Howard. (Halvorson, Rachel) (Entered: 05/04/2007)
77 Minute Order by Judge Dana M. Sabraw granting 47 Motion for Leave to File Amicus Brief. (jak) (Entered: 05/10/2007)
78 RESPONSE in Opposition re 76 MOTION to Dismiss Defendant Corrections Corporation of America, Joe Easterling and Charles Howard's Motion to Dismiss Plaintiffs' Second Amended Complaint, 75 MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Second Amended Complaint filed by Isaac Kigondu Kiniti, Jose Morales−Vargas, Sylvester Owino, Hernan Ismael Delgado, Any Castro. (Attachments: # 1 Declaration of Tom Jawetz and Attached Exhibits# 2 Declaration of Jose Morales−Vargas# 3 Declaration of Isaac Kigondu Kiniti# 4 Proof of Service)(Jawetz, Tom−Tsvi) (Entered: 05/21/2007)
79 CERTIFICATE OF SERVICE by Isaac Kigondu Kiniti, Jose Morales−Vargas, Sylvester Owino, Hernan Ismael Delgado, Any Castro re 78 Response in Opposition to Motion,, (Amended) (Jawetz, Tom−Tsvi) (Entered: 05/21/2007)
80 MOTION to Preserve the Testimony of Named Plaintiffs Kiniti and Delgado By Barring Their Removal Prior to Deposition by Isaac Kigondu Kiniti, Jose Morales−Vargas, Sylvester Owino, Hernan Ismael Delgado, Any Castro. (Attachments: # 1 Notice of Motion to Preserve Testimony# 2 Memo of Points and Authorities in Support of Motion to Preserve Testimony# 3 Declaration of Gouri Bhat and Attached Exhibits# 4 Proof of Service)(Jawetz, Tom−Tsvi) (Entered: 05/21/2007)
81 RESPONSE to Motion re 80 MOTION to Preserve the Testimony of Named Plaintiffs Kiniti and Delgado By Barring Their Removal Prior to Deposition filed by Corrections Corporation of America, Inc., Joe Easterling, Charles Howard, Correction Corporation of America. (Halvorson, Rachel)

05/30/2007 06/01/2007
06/01/2007 06/08/2007 06/08/2007 06/08/2007
06/13/2007 06/13/2007 06/15/2007
06/18/2007 06/19/2007 06/20/2007

(Entered: 05/30/2007)
82 NOTICE of Joinder by Corrections Corporation of America, Inc., Joe Easterling, Charles Howard re 75 MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Second Amended Complaint (Halvorson, Rachel) (Entered: 05/30/2007)
83 REPLY to Response to Motion re 76 MOTION to Dismiss Defendant Corrections Corporation of America, Joe Easterling and Charles Howard's Motion to Dismiss Plaintiffs' Second Amended Complaint filed by Corrections Corporation of America, Inc., Joe Easterling, Charles Howard. (Attachments: # 1 Exhibit Affidavit of Joe Easterling# 2 Exhibit Affidavit of Damon Hininger)(Halvorson, Rachel) (Entered: 06/01/2007)
84 REPLY to Response to Motion re 75 MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Second Amended Complaint filed by Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone. (Go, Samuel) (Entered: 06/01/2007)
85 RESPONSE to Motion re 80 MOTION to Preserve the Testimony of Named Plaintiffs Kiniti and Delgado By Barring Their Removal Prior to Deposition filed by Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone. (Go, Samuel) (Entered: 06/08/2007)
86 RESPONSE in Opposition re 36 MOTION to Certify Class Under Proposed Second Amended Complaint filed by Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone. (Go, Samuel) (Entered: 06/08/2007)
87 RESPONSE in Opposition re 36 MOTION to Certify Class Under Proposed Second Amended Complaint filed by Joe Easterling, Charles Howard, Correction Corporation of America. (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)(Struck, Daniel) (Entered: 06/08/2007)
88 NOTICE by Isaac Kigondu Kiniti of related case(s) 07−cv−1078−L−RBB (Stiegler, Anthony) (Entered: 06/13/2007)
89 SUPPLEMENTAL DOCUMENT − Supplemental Declaration in Support of Plaintiffs' Opposition to Motion to Dismiss, by Isaac Kigondu Kiniti. (Stiegler, Anthony) Modified text on 6/18/2007 to reflect document (jcj). (Entered: 06/13/2007)
90 Minute Entry for proceedings held before Judge Dana M. Sabraw: Motion Hearing held on 6/15/2007. Court to issue order. (Court Reporter LeeAnn Pence).(Plaintiff Attorney John David Blair−Loy, Tom Jawetz, Goury Baht, Tony Stiegler).(Defendant Attorney Samuel P Go, Rachel Halvorson). (jak) (Entered: 06/15/2007)
91 ORDER Granting Plaintiffs' 80 Motion to Preserve Testimony of Named Plaintiffs Kniti and Delgado by Barring Their Removal Prior to Deposition. Signed by Judge Dana M. Sabraw on 06/18/07. (jcj) (Entered: 06/18/2007)
94 Joint MOTION for Extension of Time to File Response/Reply Brief in Support of Motion for Class Certification by Isaac Kigondu Kiniti, Jose Morales−Vargas, Sylvester Owino, Hernan Ismael Delgado, Any Castro. (Attachments: # 1 Proof of Service)(Jawetz, Tom−Tsvi) (Entered: 06/19/2007)
95 ORDER Granting 94 Motion − Stipulation to Extend the Deadline for Plaintiffs' Reply Memorandum of Points and

06/21/2007 06/26/2007 06/26/2007 06/28/2007 07/02/2007
07/06/2007
07/13/2007 07/13/2007 07/16/2007 07/18/2007

Authorities in Support of Their 36 MOTION for Class Certification. Replies due by 6/26/2007. Signed by Judge Dana M. Sabraw on 06/20/07. (jcj) (Entered: 06/20/2007)
96 ORDER Granting−in−Part and Denying−in−Part Defendants' Motions to Dismiss Second Amended Complaint, re 75 Motion to Dismiss, 76 Motion to Dismiss. Signed by Judge Dana M. Sabraw on 06/21/07. (jcj) (Entered: 06/21/2007)
97 REPLY re 87 Response in Opposition to Motion, 86 Response in Opposition to Motion, 36 MOTION to Certify Class Under Proposed Second Amended Complaint filed by Isaac Kigondu Kiniti, Sylvester Owino, Hernan Ismael Delgado. (Attachments: # 1 Exhibit Exhibits A−J# 2 Exhibit Exhibits K−R# 3 Proof of Service)(Bhat, Gouri) (Entered: 06/26/2007)
98 Ex Parte MOTION for Leave to File Excess Pages by Isaac Kigondu Kiniti, Sylvester Owino, Hernan Ismael Delgado. (Attachments: # 1 Proposed Order# 2 Proof of Service)(Bhat, Gouri) Modified on 6/28/2007 (jcj) Atty contacted re proposed order. (Entered: 06/26/2007)
99 ORDER Granting Plaintiffs' 98 Ex Parte Motion for Leave to Exceed the Page Limit, re Plaintiffs' Motion for Class Certification. Signed by Judge Dana M. Sabraw on 06/27/07. (jcj) (Entered: 06/28/2007)
100 NOTICE by Corrections Corporation of America, Inc., Joe Easterling, Charles Howard re 87 Response in Opposition to Motion, 97 Reply, Defendants Corrections Corporation of America, Inc., Joe Easterling, and Charles Howard's Notice of Errata (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibits 2−8# 3 Exhibit Exhibits 9−17)(Halvorson, Rachel) Modified on 7/9/2007 (jcj) Atty contacted re supplemental documents. (Entered: 07/02/2007)
101 Minute Entry for proceedings held before Judge Dana M. Sabraw: Motion Hearing held on 7/6/2007 re 36 MOTION to Certify Class Under Proposed Second Amended Complaint filed by Isaac Kigondu Kiniti. Motion taken under submission by the Court. Defense counsel to file supplemental brief by 7/13/07. Response due 7/20/07. (Court Reporter LeeAnn Pence).(Plaintiff Attorney Gouri Bhat).(Defendant Attorney Samuel P Go, Chris Stuart, Rachel Halvorson). (jak) (Entered: 07/06/2007)
102 SUPPLEMENTAL DOCUMENT, re 87 Response in Opposition, by Corrections Corporation of America, Inc., Joe Easterling, Charles Howard. (Halvorson, Rachel) Modified text on 7/17/2007 (jcj). (Entered: 07/13/2007)
103 SUPPLEMENTAL DOCUMENT, re 86 Response in Opposition, by Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone. (Go, Samuel) Modified text on 7/17/2007 (jcj). (Entered: 07/13/2007)
104 Joint MOTION for Extension of Time to File Response/Reply as to 36 MOTION to Certify Class Under Proposed Second Amended Complaint by Isaac Kigondu Kiniti, Jose Morales−Vargas, Sylvester Owino, Hernan Ismael Delgado, Any Castro. (Attachments: # 1 Proof of Service)(Jawetz, Tom−Tsvi) (Entered: 07/16/2007)
105 ORDER Granting 104 Joint MOTION − Stipulation to Extend the Deadline for Plaintiffs' Supplemental Reply Memorandum of Points and Authorities in Support of Their 36 MOTION for Class Certification. Plaintiffs shall file their supplemental reply brief by 07/25/07. Signed by Judge Dana M. Sabraw on 07/18/07. (jcj)

07/19/2007
07/19/2007 07/23/2007 07/23/2007 07/25/2007 07/31/2007 08/17/2007 08/23/2007 09/05/2007 09/17/2007 09/17/2007 09/18/2007
09/20/2007

(Entered: 07/18/2007)
106 MOTION for Extension of Time to File Answer re 57 Amended Complaint, Parties' Stipulation to Extend the Deadline for Defendants to Answer Plaintiffs' Second Amended Complaint by Isaac Kigondu Kiniti, Jose Morales−Vargas, Sylvester Owino, Hernan Ismael Delgado, Any Castro, Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone, Corrections Corporation of America, Inc., Joe Easterling, Charles Howard. (Halvorson, Rachel) (Entered: 07/19/2007)
107 ORDER Granting Parties' 106 Motion − Stipulation to Extend the Deadline for Defendants to Answer Plaintiffs' Second Amended Complaint. Defendants shall file their Amswer by 07/23/07. Signed by Judge Dana M. Sabraw on 07/19/07. (jcj) (Entered: 07/20/2007)
108 ANSWER to Amended Complaint by Defendants Corrections Corporation of America, Inc., Joe Easterling, Charles Howard by Corrections Corporation of America, Inc., Joe Easterling, Charles Howard.(Halvorson, Rachel) (Entered: 07/23/2007)
109 ANSWER to Amended Complaint by Defendants Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone by Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone.(Go, Samuel) (Entered: 07/23/2007)
110 SUPPLEMENTAL DOCUMENT by Isaac Kigondu Kiniti, Jose Morales−Vargas, Sylvester Owino, Hernan Ismael Delgado, Any Castro. (Attachments: # 1 Proof of Service)(Jawetz, Tom−Tsvi) (Entered: 07/25/2007)
111 Document Stricken, as per chambers. Leave to file document was not requested. Modified on 8/7/2007 (jcj). (Entered: 07/31/2007)
112 ORDER Granting Plaintiffs' 36 Motion for Class Certification. Signed by Judge Dana M. Sabraw on 08/17/07. (jcj) (Entered: 08/17/2007)
113 NOTICE by Corrections Corporation of America, Inc., Joe Easterling, Charles Howard Notice of Name Change (Love, Rachel) (Entered: 08/23/2007)
114 Case Management Conference set for 10/10/2007 01:30 PM in El Centro before Magistrate Judge Peter C. Lewis. Signed by Judge Peter C. Lewis on 9/5/2007. (mb) (Entered: 09/05/2007)
115 MOTION for Reconsideration re 112 Order on Motion to Certify Class by Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone. (Go, Samuel) (Entered: 09/17/2007)
116 MOTION to Withdraw as Attorney of Record (Pursuant to S.D. Cal. CivLR 83.3(g)(3)) by Isaac Kigondu Kiniti, Sylvester Owino, Hernan Ismael Delgado. (Attachments: # 1 Proof of Service)(Fathi, David) (Entered: 09/17/2007)
117 ORDER Setting Hearing Date and Briefing Schedule for 115 MOTION for Reconsideration. Motion Hearing set for 10/19/2007 01:30 PM in Courtroom 10 before Judge Dana M. Sabraw. Responses due by 10/1/2007. Replies due by 10/9/2007. Signed by Judge Dana M. Sabraw on 09/18/07. (jcj) (Entered: 09/19/2007)
118 DECLARATION re 116 MOTION to Withdraw as Attorney of Record (Pursuant to S.D. Cal. CivLR 83.3(g)(3)) by Plaintiffs Isaac Kigondu Kiniti, Sylvester Owino, Hernan Ismael Delgado. (Fathi, David) (Entered: 09/20/2007)

09/24/2007 09/25/2007 09/25/2007 09/26/2007 09/28/2007 09/28/2007 10/01/2007 10/04/2007
10/04/2007 10/05/2007
10/09/2007 10/10/2007

119 ORDER Granting Leave to Withdraw as Counsel of Record, re 116 Motion. Attorney David Fathi terminated as counsel of record for Plaintiffs Issac Kigondu Kiniti, Sylvester Owino, and Hernan Ismael Delgado. Signed by Judge Dana M. Sabraw on 09/24/07. (jcj) (Entered: 09/24/2007)
120 OBJECTION by Corrections Corporation of America, Inc., Joe Easterling, Charles Howard to Plaintiffs' Request for Settlement Conference (Struck, Daniel) (Entered: 09/25/2007)
121 NOTICE by Corrections Corporation of America, Inc., Joe Easterling, Charles Howard re 120 Objection (of Errata Regarding Exhibit 1) (Attachments: # 1 Exhibit Letter from Gouri Bhat to Magistrate Judge Lewis dated September 17, 2007)(Struck, Daniel) (Entered: 09/25/2007)
122 RESPONSE in Opposition to Plaintiffs' Request for a Settlement Conference by Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone (Attachments: # 1 Exhibit 1 &2)(Go, Samuel) (agp). (Entered: 09/26/2007)
123 MOTION Permitting Party Respresentative be Permitted to Attend the 10/10/07 Case Management Conference Telephonically by Corrections Corporation of America, Inc., Joe Easterling, Charles Howard. (Love, Rachel) (jcj). (Entered: 09/28/2007)
124 ORDER for the Production of Settlement Briefs. On or before 10/08/07, the parties shall submit to the Court confidential settlement briefs. The parties shall come to the 10/10/07 Case Management Conference prepared to discuss settlement. Signed by Judge Peter C. Lewis on 09/28/07. (jcj) (Entered: 09/28/2007)
125 RESPONSE in Opposition to 115 MOTION for Reconsideration re 112 Order on Motion to Certify Class filed by Isaac Kigondu Kiniti, Sylvester Owino, Hernan Ismael Delgado. (Attachments: # 1 Proof of Service)(Bhat, Gouri) Modified text on 10/2/2007 (jcj). (Entered: 10/01/2007)
126 NOTICE of Joinder by Corrections Corporation of America, Inc., Joe Easterling, Charles Howard re 115 MOTION for Reconsideration re 112 Order on Motion to Certify Class Defendants CCA, Easterling and Howards Joinder in the Federal Defendants' Motion to Reconsider the Order Granting Plaintiffs Motion for Class Certification (Love, Rachel) (jcj). (Entered: 10/04/2007)
127 MOTION Requesting that Party Respresentative be Permitted to Attend the October 10, 2007 Case Management Conference Telephonically by Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone. (Go, Samuel) (jcj). (Entered: 10/04/2007)
128 ORDER Regulating Telephonic Attendance at the October 10, 2007 Case Management Conference; granting 123 and 127 Motions for Reconsideration. All parties, representatives of the parties, and the parties' attorneys may attend the Case Management Conference telephonically. Signed by Judge Peter C. Lewis on 10/05/07. (vrp) (Entered: 10/09/2007)
129 REPLY re 115 MOTION for Reconsideration re 112 Order on Motion to Certify Class filed by Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone. (Go, Samuel) (jcj). (Entered: 10/09/2007)
130 Minute Entry for proceedings held before Judge Peter C. Lewis : Case Management Conference held on 10/10/2007(Plaintiff Attorneys Gouri Bhat, David Blair−Loy, Mary Kathryn−Cooley).(Defendant Attorneys Dan Struck, Jon Kaplan,

10/11/2007
10/16/2007 10/29/2007 11/09/2007 11/09/2007 11/09/2007 12/20/2007 12/20/2007 01/28/2008 03/18/2008 03/18/2008

Victor Lawrence, Samuel Go, Jennifer Fenton). (mb) (Entered: 10/11/2007)
131 Case Management Conference ORDER Regulating Discovery and Other Pretrial Proceedings. Case Management Conference held 10/10/07. Mandatory Settlement Conference set for 7/2/2008 01:30 PM Magistrate Judge Peter C. Lewis. Settlement Conference set for 10/15/2008 01:45 PM before Magistrate Judge Peter C. Lewis. Memorandum of Contentions of Fact and Law due by 10/24/2008. Proposed Pretrial Order due by 11/5/2008. Final Pretrial Conference set for 11/14/2008 10:30 AM in Courtroom 10 before Judge Dana M. Sabraw. Jury Trial set for 1/5/2009 09:00 AM in Courtroom 10 before Judge Dana M. Sabraw. Signed by Judge Peter C. Lewis on 10/11/07. (jcj) (Entered: 10/12/2007)
132 ORDER Re: Oral Argument, re 115 Motion for Reconsideration. Motion Hearing currently scheduled for 10/19/07. The Court finds this matter suitable for submission without oral argument. Accordingly, no appearances are required at this time. Signed by Judge Dana M. Sabraw on 10/16/07. (jcj) (Entered: 10/16/2007)
133 ORDER Denying 115 Motion for Reconsideration, and Clarifing 112 Order Granting Class Certification. Plaintiffs have both Article III standing and standing to pursue injunctive relief as a class. Accordingly, Defendant's motion is DENIED. Signed by Judge Dana M. Sabraw on 10/29/07. (jcj) (Entered: 10/30/2007)
134 NOTICE by Corrections Corporation of America, Inc., Joe Easterling, Charles Howard Notice of Service of CCA Defendants' Initial Disclosure Statement (Love, Rachel) (lao ). (Entered: 11/09/2007)
135 NOTICE by Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone of Service of Federal Defendants' Rule 26(a)(1) Disclosures (Go, Samuel) (lao). (Entered: 11/09/2007)
136 NOTICE by Isaac Kigondu Kiniti, Jose Morales−Vargas, Sylvester Owino, Hernan Ismael Delgado, Any Castro of Service of Plaintiffs' Initial Disclosures Pursuant to Fed. R. Civ. P. 26(a)(1) (Attachments: # 1 Proof of Service)(Jawetz, Tom−Tsvi) (lao). (Entered: 11/09/2007)
137 Joint MOTION to Substitute Party by Isaac Kigondu Kiniti, Jose Morales−Vargas, Sylvester Owino, Hernan Ismael Delgado, Any Castro. (Jawetz, Tom−Tsvi) (lao). (Entered: 12/20/2007)
138 ORDER Granting the Joint Motion to Substitute Defendant re 137 Joint MOTION. Defendant Fred Lawrence substituted as a defendant in this action in place of Joe Easterling. Signed by Judge Dana M. Sabraw on 12/20/07. (lao)(mam). (Entered: 12/20/2007)
139 NOTICE by Corrections Corporation of America, Inc., Charles Howard, Fred Lawrence of Withdrawal of Counsel of Record (Yurk, Russell) (lao). (Entered: 01/28/2008)
140 Joint MOTION to Stay Discovery and Pretrial Proceedings by Isaac Kigondu Kiniti, Sylvester Owino, Hernan Ismael Delgado, Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone, Corrections Corporation of America, Inc., Charles Howard, Fred Lawrence. (Attachments: # 1 Proof of Service)(Bhat, Gouri) (lao). (Entered: 03/18/2008)
141 ORDER granting 140 Joint Motion to Stay Discovery and Pretrial Proceedings. Signed by Magistrate Judge Peter C. Lewis on 3/18/08. (lao) (Entered: 03/19/2008)

04/21/2008 04/22/2008 05/19/2008 05/20/2008 06/04/2008
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142 Joint MOTION to Stay Discovery and Pretrial Proceedings by Isaac Kigondu Kiniti, Sylvester Owino, Hernan Ismael Delgado, Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone, Corrections Corporation of America, Inc., Charles Howard, Fred Lawrence. (Go, Samuel) (vet). (Entered: 04/21/2008)
143 ORDER granting 142 Joint Motion to Stay Discovery and Pretrial Proceedings. Signed by Magistrate Judge Peter C. Lewis on 4/22/2008. Discovery and pretrial proceedings stayed for a period of one month, until 5/19/2008. (jah) (Entered: 04/22/2008)
144 Joint MOTION to Stay re 131 Scheduling Order,, and Pretrial Proceedings by Isaac Kigondu Kiniti, Jose Morales−Vargas, Sylvester Owino, Hernan Ismael Delgado, Any Castro, Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone, Corrections Corporation of America, Inc., Charles Howard, Fred Lawrence. (Struck, Daniel) (lao). (Entered: 05/19/2008)
145 ORDER granting 144 Joint Motion to Stay Discovery and Pretrial proceedings. Discovery and pretrial proceedings in this action shall be stayed for a period of two weeks, through and including 6/3/08. Signed by Magistrate Judge Peter C. Lewis on 5/20/08. (lao)(kaj). (Entered: 05/20/2008)
146 Joint MOTION to (1) Approve Form and Manner of Class Notice; (2) Set Fairness Hearing; and (3) "So Order" the Parties' Stipulated Protective Order by Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone. (Attachments: # 1 Settlement Agreement, # 2 Exhibit Class Notice, # 3 Exhibit Stipulated Protective Order, # 4 Proof of Service Certificate of Service)(Go, Samuel) (lao). Contacted Attny re filing motions (Entered: 06/04/2008)
147 ORDER Granting 146 Joint MOTION to (1) Approve Form and Manner of Class Notice; (2) Set Fairness Hearing; and (3) "So Order" the Parties' Stipulated Protective Order. It is therefore Ordered that the Notice attached to the Motion is Approved and shall be given as specified in paragraphs 18 and 19 of the Settlement Agreement. (Fairness Hearing set for 8/15/2008 01:30 PM in Courtroom 10 before Judge Dana M. Sabraw.) Signed by Judge Dana M. Sabraw on 6/6/08. (lao) (av1). (Entered: 06/06/2008)
148 Joint MOTION Set Dates for Objections and Reports by Isaac Kigondu Kiniti, Sylvester Owino, Hernan Ismael Delgado. (Attachments: # 1 Class Notice, # 2 Proof of Service Certificate of Service)(Jawetz, Tom−Tsvi) (lao). Contacted Attny re proposed orders (Entered: 06/17/2008)
149 ORDER granting 148 Joint Motion to set dates for Objections and Reports. It is Hereby Ordered that: (1) Any class member objections to the proposed settlement agreement be mailed to the Clerk of Court, with copies to counsel for all parties, no later than July 21, 2008; and (2) Any responses to class member objections prepared by the parties in advance of the August 15, 2008 fairness hearing be filed no later than August 8, 2008. Signed by Judge Dana M. Sabraw on 6/19/08. (All non−registered users served via U.S. Mail Service).(lao) (kaj). (Entered: 06/19/2008)
150 NOTICE of Proposed Class Action Settlement. Signed by Judge Dana M. Sabraw on 06/17/08. (All non−registered users served via U.S. Mail Service).(lao) (kaj). (Entered: 06/19/2008)
151 Dates set in Court's original scheduling order are hereby vacated. Signed by Magistrate Judge Peter C. Lewis on 06/25/08. (mb) (Entered: 06/25/2008)

07/07/2008 07/11/2008
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152 Joint MOTION to Administratively Close this Action by Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone. (Go, Samuel) (lao). Contacted Attny re signature (Entered: 07/07/2008)
153 MOTION to Withdraw as Attorney of Record by Isaac Kigondu Kiniti, Sylvester Owino, Hernan Ismael Delgado. (Attachments: # 1 Declaration of Willetta Powell in Support of Motion for Leave to Withdraw as Counsel of Record, # 2 Proof of Service)(Bhat, Gouri) (lao). Missing hearing date and time; no separately captioned memorandum of points and authorities (Entered: 07/11/2008)
154 ORDER Granting 152 Joint Motion to Administratively Close this Action. The parties' Joint Motion to administratively close this action for six (6) months is hereby Granted, and, it is therefore Ordered that this action is administratively closed for six (6) months, during which time the stay of discovery and pretrial proceedings shall remain in effect. Signed by Judge Dana M. Sabraw on 7/11/08. (All non−registered users served via U.S. Mail Service).(lao) (av1). (Entered: 07/11/2008)
155 Discrepancy Order by Judge Dana M. Sabraw rejecting document: Letter from Plaintiff Isaac Kigondu Kiniti, non−compliance with local rule Other: Ex parte communication is prohibited. (All non−registered users served via U.S. Mail Service).(rmm) (Entered: 07/14/2008)
157 Putative Class Representatives' Motion in OBJECTION to the "Proposed Class Action Settlement" by Isaac Kigondu Kiniti. (rmm) (Entered: 07/23/2008)
156 Mail Returned as Undeliverable as to Seedahmed Zuhair, A74−498−106, San Diego Correctional Facility, P.O. Box 439049, San Diego, CA 92143 re 155 Discrepancy Order. (lao) (kaj). (Entered: 07/23/2008)
158 Discrepancy Order by Judge Dana M. Sabraw accepting document: Letter/Opposition non−compliance with local rule Other: Improper format and late per order dated 6/19/2008 (Docket #149). (All non−registered users served via U.S. Mail Service).(rmm) (Entered: 07/25/2008)
159 Letter from Plaintiff Fred Ngugi. Nunc pro tunc to 7/22/2008. (rmm) (Entered: 07/25/2008)
160 Discrepancy Order by Judge Dana M. Sabraw accepting document: Motion for Leave to Withdraw as Plaintiff on Above Cases from Plaintiff Sylvester Owino, non−compliance with local rule 5.1, Missing time and date on motion and/or supporting documentation and 7.1, Lacking memorandum of points and authorities in support as a separate document.(All non−registered users served via U.S. Mail Service).(rmm) (Entered: 07/28/2008)
161 MOTION for Leave to Withdraw as Plaintiff on Above Cases by Sylvester Owino. Nunc pro tunc to 7/23/2008. (rmm) (Entered: 07/28/2008)
162 RESPONSE to Motion re 161 MOTION and Class Members' Objections filed by Julie L Myers, John P. Torres, Ron Smith, Anthony Cerone. (Attachments: # 1 Exhibit A)(Go, Samuel) (lao). (Entered: 08/08/2008)
163 RESPONSE to Motion re 161 MOTION Defendants Corrections Corporation of America, Lawrence and Howards Response to Plaintiffs Objections to Proposed Class Settlement and Brief in Support of Approval of Class Action Settlement filed by Corrections Corporation of America, Inc., Charles Howard, Fred

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Lawrence. (Attachments: # 1 Exhibit 1−2, # 2 Exhibit 3, # 3 Exhibit 3 − Attachment A, # 4 Exhibit 3 − Attachment B)(Love, Rachel) (lao). document not timely with hearing date (Entered: 08/08/2008)
164 MOTION for Settlement by Isaac Kigondu Kiniti, Jose Morales−Vargas, Sylvester Owino, Hernan Ismael Delgado, Any Castro, Fred Ngugi. (Attachments: # 1 Memo of Points and Authorities In Support of Plaintiffs' Motion to Approve Class Action Settlement, # 2 Declaration of Tom Jawetz in Support of Plaintiffs' Motion to Approve Class Action Settlement, # 3 Exhibit Index to Declaration of Tom Jawetz, # 4 Proof of Service)(Jawetz, Tom−Tsvi) (lao). document not timely with hearing date (Entered: 08/08/2008)
165 MOTION for Writ of Habeas Corpus ad testificandum for Plaintiff Isaac Kigondu Kiniti by Isaac Kigondu Kiniti. (Attachments: # 1 Proof of Service)(Jawetz, Tom−Tsvi) (lao). (Entered: 08/08/2008)
166 MOTION for Writ of Habeas Corpus ad testificandum for Plaintiff Fred Nganga Ngugi by Fred Ngugi. (Attachments: # 1 Proof of Service)(Jawetz, Tom−Tsvi) (lao). (Entered: 08/08/2008)
167 MOTION for Writ of Habeas Corpus ad testificandum for Plaintiff Sylvester Owino by Sylvester Owino. (Attachments: # 1 Proof of Service)(Jawetz, Tom−Tsvi) (lao). (Entered: 08/08/2008)
168 NOTICE of Hearing: Confirming Fairness Hearing set for 8/15/2008 01:30 PM in Courtroom 10 before Judge Dana M. Sabraw. (jak) (Entered: 08/11/2008)
169 ORDER granting 165 Petition for Writ of Habeas Corpus Ad Testificandum for Plaintiff Isaac Kigondu Kiniti. Signed by Judge Dana M. Sabraw on 8/13/08. (All non−registered users served via U.S. Mail Service).(lao) (av1). (Entered: 08/13/2008)
170 Writ of Habeas Corpus ad Testificandum Issued as to Isaac Kigondu Kiniti for Friday, August 15, 2008 at 1:30 PM in courtroom 10 before Judge Dana M. Sabraw (lao) (Additional attachment(s) added on 8/13/2008: # 1 Copy received by USM) (lao). (av1). (Entered: 08/13/2008)
171 ORDER granting 166 Petition for Writ of Habeas Corpus ad testificandum for Plaintiff Fred Nganga Ngugi. Signed by Judge Dana M. Sabraw on 8/13/08. (All non−registered users served via U.S. Mail Service).(lao)(av1). (Entered: 08/13/2008)
172 Writ of Habeas Corpus ad Testificandum Issued as to Fred Nganga Ngugi for Friday, August 15, 2008 at 1:30 PM in Courtroom 10 before Judge Dana M. Sabraw. (lao) (Additional attachment(s) added on 8/13/2008: # 1 Copy received by USM) (lao). (av1). (Entered: 08/13/2008)
173 ORDER granting 167 Petition for Writ of Habeas Corpus ad testificandum for Plaintiff Sylvester Owino. Signed by Judge Dana M. Sabraw on 8/13/08. (All non−registered users served via U.S. Mail Service).(lao) (av1). (Entered: 08/13/2008)
174 Writ of Habeas Corpus ad Testificandum Issued as to Sylvester Owino for Friday, August 15, 2008 at 1:30 PM in courtroom 10 before Judge Dana M. Sabraw. (lao) (Additional attachment(s) added on 8/13/2008: # 1 Copy received by USM) (lao). (av1). (Entered: 08/13/2008)

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175 NOTICE by Corrections Corporation of America, Inc., Charles Howard, Fred Lawrence re 163 Response to Motion, Defendants Notice of Errata Regarding Defendants' Response to Plaintiffs' Objections to Proposed Class Settlement and Brief in Support of Approval of Class Action Settlement (Attachments: # 1 Exhibit 1 − Amended Affidavit of Frederick Lawrence, # 2 Exhibit 1 − Attachment A, # 3 Exhibit 1 − Attachment B, # 4 Exhibit 1 − Attachment C)(Love, Rachel) (cap). (Entered: 08/15/2008)
176 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status/Fairness Conference held on 8/15/2008. Plaintiffs Isaac Kigondu Kiniti, Sylvester Owino and Fred Nganga Ngugi present, appearing pursuant to writ. Court to issue order. (Court Reporter LeeAnn Pence).(Plaintiff Attorney John David Blair−Loy, Tom−Tsvi Jawetz).(Defendant Attorney Samuel P Go, Daniel P Struck, Victor Lawrence).(jak) (Entered: 08/18/2008)
177 NOTICE of Supplemental Objection to Class Action Settlement by Isaac Kigondu Kiniti, Sylvester Owino, Hernan Ismael Delgado (Attachments: # 1 Supplemental Objection by Classmember Fred Ngugi, # 2 Proof of Service)(Jawetz, Tom−Tsvi) Modified text on 8/20/2008 to reflect document title (lao). supplemental documents require leave of Court (Entered: 08/18/2008)
178 Writ of Habeas Corpus ad Testificandum for Plaintiff Sylvester Owino Returned Executed on 8/15/08. (lao) (kaj). (Entered: 08/19/2008)
179 Writ of Habeas Corpus ad Testificandum for Plaintiff Isaac Kigondu Kiniti Returned Executed on 8/15/08. (lao) Modified text on 8/19/2008 to include name of Plaintiff (lao). (kaj). (Entered: 08/19/2008)
180 Writ of Habeas Corpus ad Testificandum for Plaintiff Fred Nganga Ngugi Returned Executed on 8/15/08. (lao) (kaj). (Entered: 08/19/2008)
181 ORDER approving Class Settlement re 161 , 164 . The settlement agreement is therefore approved. Pursuant to the settlement, the action shall not be dismissed at this time; however, the stay of pre−trial proceedings shall remain in effect until January 28, 2009; at which time and if the terms of the settlement agreement have been satisfied, the parties shall submit a stipulation to dismiss this action with prejudice. Signed by Judge Dana M. Sabraw on 8/20/08. (All non−registered users served via U.S. Mail Service).(lao) (kaj). (Entered: 08/20/2008)
182 MOTION for Leave to Appeal in forma pauperis t/w Prison Certificate by Isaac Kigondu Kiniti. (akr) (Entered: 10/07/2008)
183 Prisoner Trust Fund Account Statement (entitled "Exhibit B" and "Prison Certificate") by Isaac Kigondu Kiniti. (akr) (Entered: 10/07/2008)
184 NOTICE OF APPEAL as to 181 Order Approving Class Settlement by Isaac Kigondu Kiniti, on behalf of himself, Sylvester Owino, Hernan Ismael Delgado, and all others similarly situated. (Filing Fee: No Fee Required). (akr) (Entered: 10/07/2008)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 184 Notice of Appeal. (akr) (Entered: 10/07/2008)
185 USCA Case Number 08−56677 for 184 Notice of Appeal filed by Isaac Kigondu Kiniti. (akr) (Entered: 10/10/2008)

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186 USCA Time Scheduling Order as to 184 Notice of Appeal filed by Isaac Kigondu Kiniti. (cc: Court Reporter). (akr) (Entered: 10/10/2008)
187 NOTICE of Transcript Order for date of 8/15/2008 by Defendants−Appellees. (All non−registered users served via U.S. Mail Service). (akr) (Entered: 10/20/2008)
188 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings (Motion Hearing) held on 8/15/2008, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. 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 or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 12/8/2008. Redacted Transcript Deadline set for 12/16/2008. Release of Transcript Restriction set for 2/13/2009. (akr) (Entered: 11/18/2008)
189 Certificate of Record transmitted to USCA re 184 Notice of Appeal. (akr) (Entered: 11/18/2008)
190 ORDER denying as moot Plaintiff's Motion to proceed in Forma Pauperis on Appeal re 182 Motion. Signed by Judge Dana M. Sabraw on 11/19/08. (All non−registered users served via U.S. Mail Service).(lao) (kaj). (Entered: 11/19/2008)
191 ORDER of USCA as to 184 Notice of Appeal filed by Isaac Kigondu Kiniti. A review of the record demonstrates that the USCA lacks jurisdiction over this appeal because the order challenged in the appeal is not final or appealable. Consequently, this appeal is dismissed for lack of jurisdiction. (akr) (Entered: 12/03/2008)
192 Joint MOTION to Dismiss filed as NOTICE by Corrections Corporation of America, Inc., Charles Howard, Fred Lawrence Joint Stipulation to Dismiss with Prejudice (Love, Rachel) Modified text on 1/28/2009 to reflect proper document type (lao). (Entered: 01/28/2009)
193 ORDER of Dismissal with Prejudice re 192 . The Court approves the parties' stipulation. Accordingly the above captioned action is dismissed in its entirety, with prejudice, with each party to bear their own costs and fees. Signed by Judge Dana M. Sabraw on 1/28/09. (All non−registered users served via U.S. Mail Service).(lao) (Entered: 01/28/2009)
194 NOTICE of Spreading the Mandate: Appeal Mandate Hearing set for 2/20/2009 10:30 AM in Courtroom 10 before Judge Dana M. Sabraw. (jak) (Entered: 02/09/2009)
195 Minute Entry for proceedings held before Judge Dana M. Sabraw: Appeal Mandate Hearing held on 2/20/2009. Judgment of USCA dismissing appeal ordered filed and entered. (Court Reporter LeeAnn Pence). No appearances. (jak) (Entered: 02/20/2009)
196 MANDATE of USCA dismissing the appeal for lack of jurisdiction as to 184 Notice of Appeal filed by Isaac Kigondu Kiniti. (akr) (Entered: 02/20/2009)