U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:20-cv-10949-LVP-PTM

Cameron et al v. Bouchard et al Assigned to: District Judge Linda V. Parker Referred to: Magistrate Judge Patricia T. Morris Case in other court: U.S. Court of Appeals - Sixth
Circuit, 20-01469
U.S. Court of Appeals - Sixth Circuit, 20-01469 Cause: 28:1651 Petition for Writ of Habeas Corpus

Date Filed: 04/17/2020 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff Jamaal Cameron

represented by Alexandria Twinem Civil Rights Corps 1601 Connecticut Avenue NW Suite 800 Washington, DC 20009 202-894-6126 Email: alexandria@civilrightscorps.org ATTORNEY TO BE NOTICED

Allison L. Kriger La Rene & Kriger, P.L.C. 645 Griswold Suite 171 Detroit, MI 48221 313-967-0100 Fax: 313-967-0199 Email: allison.kriger@gmail.com ATTORNEY TO BE NOTICED

Daniel S. Korobkin American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6824 Fax: (313) 578-6811 Email: dkorobkin@aclumich.org ATTORNEY TO BE NOTICED

Kevin M. Carlson Pitt McGehee Palmer & Rivers PC 117 West Fourth Street Suite 200 Royal Oak, MI 48067 248-398-9800 Email: kcarlson@pittlawpc.com ATTORNEY TO BE NOTICED
Krithika Santhanam Advancement Project 1220 L St NW Ste #850 Washington, DC 20005 202-921-7327 Email: ksanthanam@advancementproject.org TERMINATED: 11/18/2020 ATTORNEY TO BE NOTICED
Philip Edwin Mayor ACLU of Michigan 2966 Woodward Ave. Detroit, MI 48201 313-578-6803+ Email: pmayor@aclumich.org ATTORNEY TO BE NOTICED
Syeda F. Davidson ACLU of Michigan ACLU of Michigan 2966 Woodward Avenue Detroit, MI 48201 313-578-6814 Email: sdavidson@aclumich.org ATTORNEY TO BE NOTICED
Thomas Bradford Harvey Advancement Project 1220 L Street Suite 850 Washington, DC 20005 314-482-3342 Email: tharvey@advancementproject.org ATTORNEY TO BE NOTICED

Plaintiff Richard Briggs

Cary S. McGehee Pitt, McGehee, 117 W. Fourth Street Suite 200 Royal Oak, MI 48067-3804 248-398-9800 Email: cmcgehee@pittlawpc.com ATTORNEY TO BE NOTICED
represented by Alexandria Twinem (See above for address) ATTORNEY TO BE NOTICED
Allison L. Kriger (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Kevin M. Carlson (See above for address) ATTORNEY TO BE NOTICED
Krithika Santhanam (See above for address) TERMINATED: 11/18/2020 ATTORNEY TO BE NOTICED
Philip Edwin Mayor (See above for address) ATTORNEY TO BE NOTICED
Syeda F. Davidson (See above for address) ATTORNEY TO BE NOTICED
Thomas Bradford Harvey (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee

Plaintiff Raj Lee
Plaintiff Michael Cameron

(See above for address) ATTORNEY TO BE NOTICED
represented by Alexandria Twinem (See above for address) ATTORNEY TO BE NOTICED
Allison L. Kriger (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Kevin M. Carlson (See above for address) ATTORNEY TO BE NOTICED
Krithika Santhanam (See above for address) TERMINATED: 11/18/2020 ATTORNEY TO BE NOTICED
Philip Edwin Mayor (See above for address) ATTORNEY TO BE NOTICED
Syeda F. Davidson (See above for address) ATTORNEY TO BE NOTICED
Thomas Bradford Harvey (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
represented by Alexandria Twinem (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Matthew Saunders

Allison L. Kriger (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Kevin M. Carlson (See above for address) ATTORNEY TO BE NOTICED
Krithika Santhanam (See above for address) TERMINATED: 11/18/2020 ATTORNEY TO BE NOTICED
Philip Edwin Mayor (See above for address) ATTORNEY TO BE NOTICED
Syeda F. Davidson (See above for address) ATTORNEY TO BE NOTICED
Thomas Bradford Harvey (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
represented by Alexandria Twinem (See above for address) ATTORNEY TO BE NOTICED
Allison L. Kriger (See above for address) ATTORNEY TO BE NOTICED
Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Michael Bouchard

Kevin M. Carlson (See above for address) ATTORNEY TO BE NOTICED
Krithika Santhanam (See above for address) TERMINATED: 11/18/2020 ATTORNEY TO BE NOTICED
Philip Edwin Mayor (See above for address) ATTORNEY TO BE NOTICED
Syeda F. Davidson (See above for address) ATTORNEY TO BE NOTICED
Thomas Bradford Harvey (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
represented by Peter L. Menna Oakland County Corporation Counsel 1200 N. Telegraph Rd. Pontiac, MI 48341 (248) 975-9616 Email: mennap@oakgov.com ATTORNEY TO BE NOTICED
Robert C. Clark Potter DeAgostino O'Dea & Patterson 2701 Cambridge Ct. Suite 223 Auburn Hills, MI 48326 248-377-1700 Fax: 248-377-0051 Email: rclark@potterlaw.com

Defendant
Curtis D. Childs TERMINATED: 05/21/2020

ATTORNEY TO BE NOTICED
Steven M. Potter Potter, Deagostino, O'Dea & Clark 2701 Cambridge Court Suite 223 Auburn Hills, MI 48326 248-377-1700 Email: spotter@potterlaw.com ATTORNEY TO BE NOTICED
Thomas M. DeAgostino Potter, DeAgostino, 2701 Cambridge Court Suite 223 Auburn Hills, MI 48326 248-377-1700 Fax: 248.377.0051 Email: tmdeag@aol.com ATTORNEY TO BE NOTICED
Trevor S. Potter Potter DeAgostino O'Dea & Clark 2701 Cambridge Ct. Ste. 223 Auburn Hills, MI 48326 248-377-1700 Email: tpotter@potterlaw.com ATTORNEY TO BE NOTICED
represented by Peter L. Menna (See above for address) ATTORNEY TO BE NOTICED
Robert C. Clark (See above for address) ATTORNEY TO BE NOTICED
Steven M. Potter (See above for address) ATTORNEY TO BE NOTICED
Thomas M. DeAgostino (See above for address) ATTORNEY TO BE NOTICED

Defendant Oakland County, Michigan
Defendant Amici Curiae

Trevor S. Potter (See above for address) ATTORNEY TO BE NOTICED
represented by Peter L. Menna (See above for address) ATTORNEY TO BE NOTICED
Robert C. Clark (See above for address) ATTORNEY TO BE NOTICED
Steven M. Potter (See above for address) ATTORNEY TO BE NOTICED
Thomas M. DeAgostino (See above for address) ATTORNEY TO BE NOTICED
Trevor S. Potter (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew A. Nickelhoff Nickelhoff & Widick, PLLC 333 W. Fort Street Suite 1400 Detroit, MI 48226 313-496-9515 Fax: 313-965-4602 Email: anickelhoff@michlabor.legal ATTORNEY TO BE NOTICED
Trevor S. Potter (See above for address) ATTORNEY TO BE NOTICED

Date Filed # Docket Text

04/17/2020
04/17/2020 04/17/2020 04/17/2020 04/17/2020
04/17/2020 04/17/2020 04/17/2020 04/17/2020 04/17/2020

1 PETITION for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief filed by All Plaintiffs against All Defendants, Receipt No: AMIEDC-7746760 - Fee: $ 5. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15) (McGehee, Cary)[WRONG EVENT USED DOCUMENT IS A CLASS ACTION COMPLAINT] Modified on 4/17/2020 (NAhm). (Entered: 04/17/2020)
2 NOTICE of Appearance by Daniel S. Korobkin on behalf of All Plaintiffs. (Korobkin, Daniel) (Entered: 04/17/2020)
3 Notice of Filing Fee Not Paid.[FILING FEE FOR A PRISONER CIVIL RIGHTS CASE IS NOT $5. VISIT OUR WEBSITE FOR CORRECT AMOUNT] Correction due by 4/24/2020 (NAhm) (Entered: 04/17/2020)
4 NOTICE of Appearance by Philip Edwin Mayor on behalf of All Plaintiffs. (Mayor, Philip) (Entered: 04/17/2020)
5 Emergency MOTION for Temporary Restraining Order , Emergency MOTION for Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J) (McGehee, Cary) (Entered: 04/17/2020)
6 MOTION to Certify Class by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4) (McGehee, Cary) (Entered: 04/17/2020)
Filing Fee for Civil Case Received by All Plaintiffs. Receipt No: AMIEDC-7747279 - Fee: 400 re 1 Petition for Writ of Habeas Corpus,,. (McGehee, Cary) (Entered: 04/17/2020)
7 NOTICE of Appearance by Steven M. Potter on behalf of Michael Bouchard, Curtis D. Childs, Oakland County, Michigan. (Potter, Steven) (Entered: 04/17/2020)
8 NOTICE of Appearance by Robert C. Clark on behalf of Michael Bouchard, Curtis D. Childs, Oakland County, Michigan. (Clark, Robert) (Entered: 04/17/2020)
9 NOTICE of Appearance by Thomas M. DeAgostino on behalf of Michael Bouchard, Curtis D. Childs, Oakland County, Michigan. (DeAgostino, Thomas) (Entered: 04/17/2020)

04/17/2020 10 NOTICE of Appearance by Kevin M. Carlson on behalf of All Plaintiffs. (Carlson, Kevin) (Entered: 04/17/2020)

04/17/2020

11 Emergency MOTION to Expedite Consideration of Plaintiff's Motion for Temporary Restraining Order by All Plaintiffs. (Attachments: # 1 Exhibit 1 - Swain Order, # 2 Exhibit 2 - Mays Order, # 3 Exhibit 3 - Proposed Order) (Carlson, Kevin) (Entered: 04/17/2020)

04/17/2020 12 OPINION and ORDER. Signed by District Judge Linda V. Parker. (RLou) (Entered: 04/17/2020)

04/17/2020

13 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 4/20/2020 at 11:00 AM before District Judge Linda V. Parker (RLou) (Entered: 04/17/2020)

04/17/2020

14 NOTICE OF HEARING BY TELEPHONE on 5 Emergency MOTION for Temporary Restraining Order Emergency MOTION for Preliminary Injunction . Motion Hearing set for 4/24/2020 at 11:00 AM before District Judge Linda V. Parker. (RLou) (Entered: 04/17/2020)

04/17/2020 21 AMENDED OPINION and ORDER. Signed by District Judge Linda V. Parker. (RLou) (Entered: 04/21/2020)

04/18/2020 15 NOTICE of Appearance by Peter L. Menna on behalf of All Defendants. (Menna, Peter) (Entered: 04/18/2020)

04/20/2020

16 Ex Parte MOTION for Leave to File Excess Pages For Motion for Reconsideration by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan. (Potter, Steven) (Entered: 04/20/2020)

04/20/2020

17 MOTION for Reconsideration re 12 Order on Motion to Expedite by All Defendants. (Attachments: # 1 Exhibit A - News Article, # 2 Exhibit BChilds Affidavit, # 3 Exhibit C - OCJ Posting, # 4 Exhibit D - Incident Report, # 5 Exhibit E- Summary of Criminal Histories, # 6 Exhibit F Warren Affidavit, # 7 Exhibit G - DMQ Product Info, # 8 Exhibit H OCJ Letter to Inmates, # 9 Exhibit I - OCJ Daily Population Report, # 10 Exhibit J - Dunbar v Rosen, # 11 Exhibit K - Oakland County Circuit Court Administrative Notice, # 12 Exhibit L - Michigan Supreme Court Administrative Order, # 13 Exhibit M - Terry Affidavit) (Potter, Steven) (Entered: 04/20/2020)

04/20/2020 18 NOTICE of Appearance by Allison L. Kriger on behalf of All Plaintiffs. (Kriger, Allison) (Entered: 04/20/2020)

04/20/2020

Minute Entry for proceedings before District Judge Linda V. Parker: Telephonic Status Conference held on 4/20/2020. Disposition: The Court

will hold an additional Status Conference at 4:00 PM. (Court Reporter: Linda Cavanagh) (RLou) (Entered: 04/20/2020)

04/20/2020 19 NOTICE of Appearance by Alexandria Twinem on behalf of All Plaintiffs. (Twinem, Alexandria) (Entered: 04/20/2020)

04/20/2020

Minute Entry for proceedings before District Judge Linda V. Parker: Telephonic Status Conference held on 4/20/2020. Disposition: The Court will hold an additional Status Conference tomorrow at 11:00 AM. (Court Reporter: Leann Lizza) (RLou) (Entered: 04/20/2020)

04/20/2020 20 NOTICE of Appearance by Krithika Santhanam on behalf of All Plaintiffs. (Santhanam, Krithika) (Entered: 04/20/2020)

04/21/2020

22 ORDER (1) Setting Briefing Schedule; (2) Waiving Rule 5 of the Electronic Filing Policies and Procedures of the Eastern District of Michigan; and (3) Cancelling April 24, 2020 Hearing. Signed by District Judge Linda V. Parker. (RLou) (Entered: 04/21/2020)

04/21/2020

TEXT-ONLY NOTICE: Motion Hearing on 4/24/2020 is Cancelled. (RLou) (Entered: 04/21/2020)

04/21/2020

23 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 4/21/2020 at 11:00 AM before District Judge Linda V. Parker (RLou) (Entered: 04/21/2020)

04/21/2020

TEXT-ONLY ORDER Granting 16 Motion for Leave to File Excess Pages. IT IS SO ORDERED. Issued by District Judge Linda V. Parker. (RLou) (Entered: 04/21/2020)

04/21/2020

Minute Entry for proceedings before District Judge Linda V. Parker: Telephonic Status Conference held on 4/21/2020. Disposition: The Court will hold an additional Status Conference tomorrow at 8:30 AM. (Court Reporter: Andrea Wabeke) (RLou) (Entered: 04/21/2020)

04/21/2020

24 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 4/22/2020 at 8:30 AM before District Judge Linda V. Parker (RLou) (Entered: 04/21/2020)

04/22/2020

Minute Entry for proceedings before District Judge Linda V. Parker: Telephonic Status Conference held on 4/22/2020. (Court Reporter: Andrea Wabeke) (RLou) (Entered: 04/22/2020)

04/22/2020

25 NOTICE TO APPEAR BY TELEPHONE (1 of 2): Status Conference set for 4/23/2020 at 1:00 PM before District Judge Linda V. Parker (RLou) (Entered: 04/22/2020)

04/22/2020

26 NOTICE TO APPEAR BY TELEPHONE (2 of 2): Status Conference set for 4/23/2020 at 2:00 PM before District Judge Linda V. Parker (RLou) (Entered: 04/22/2020)

04/22/2020

Minute Entry for proceedings before District Judge Linda V. Parker: Telephonic Status Conference held on 4/22/2020. (Court Reporter: None Present, Not on the Record) (RLou) (Entered: 04/22/2020)

04/22/2020 27 INSPECTION ORDER. Signed by District Judge Linda V. Parker. (RLou) (Entered: 04/22/2020)

04/22/2020

TEXT-ONLY NOTICE: Telephonic Status Conference on 4/23/2020 at 2:00 PM *ONLY* is Cancelled. (RLou) (Entered: 04/22/2020)

04/22/2020 28 STIPULATION Regarding Temporary Restraining Order by All Plaintiffs (Carlson, Kevin) (Entered: 04/22/2020)

04/23/2020

Minute Entry for proceedings before District Judge Linda V. Parker: Telephonic Status Conference held on 4/23/2020. (Court Reporter: Andrea Wabeke) (RLou) (Entered: 04/23/2020)

04/23/2020

29 OPINION and ORDER Granting In Part and Denying In Part Defendants' 17 Motion for Reconsideration. Signed by District Judge Linda V. Parker. (RLou) (Entered: 04/23/2020)

04/23/2020

30 MOTION to Dismiss Petition for Habeas Corpus, Claims Against Bouchard and Childs and Response to Motion for TRO by All Defendants. (Attachments: # 1 Exhibit A - Correspondence to Courts; Spreadsheet, # 2 Exhibit B - Affidavit of Capt. Curtis Childs, # 3 Exhibit C - Signs, # 4 Exhibit D - Incident Report, # 5 Exhibit E - Summary of Criminal Histories, # 6 Exhibit F - Affidavit of Vicki-Lyn Warren, # 7 Exhibit G- DMQ Product Information, # 8 Exhibit H - Letter to Inmates, # 9 Exhibit I - April 17 Daily Inmate Report, # 10 Exhibit J Dunbar v Rozen, # 11 Exhibit K - Oakland County Circuit Court Notice, # 12 Exhibit L - Michigan Supreme Court Administrative Notice, # 13 Exhibit M - Affidavit of Sgt. Ryan Terry, # 14 Exhibit N - Excerpt of CDC Recommendations, # 15 Exhibit O - March 17 Daily Inmate Report, # 16 Exhibit P - Money v Pritzker, # 17 Exhibit Q - Chambers v Bouchard, # 18 Exhibit R - Coleman v Newsom, # 19 Exhibit S - Signs) (Potter, Steven) (Entered: 04/23/2020)

04/27/2020

31 MOTION to Enforce Stipulation by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Declaration of Michael Cameron, # 3 Exhibit B - Declaration of Denisha Brinker, # 4 Exhibit C Declaration Malachi Chambers) (McGehee, Cary) (Entered: 04/27/2020)

04/27/2020

32 RESPONSE to 31 MOTION to Enforce Stipulation filed by All Defendants. (Attachments: # 1 Exhibit A - Cameron Housing Assignment, # 2 Exhibit B - Affidavit of Sgt. Ryan Terry, # 3 Exhibit C Affidavit of Capt. Curtis Childs) (Potter, Steven) (Entered: 04/27/2020)

04/27/2020

33 RESPONSE to 30 MOTION to Dismiss Petition for Habeas Corpus, Claims Against Bouchard and Childs and Response to Motion for TRO filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Calderon Order and Fraihat Docket Entry, # 3 Exhibit Savino Order, # 4 Exhibit Cameron v. Bouchard Status Conference Transcript, # 5 Exhibit Centers for Disease Control COVID-19 Guidance) (McGehee, Cary) (Entered: 04/27/2020)

04/27/2020 34 SEALED Declaration of Dr. Carlos Franco-Paredes Oakland County Jail by All Plaintiffs. (McGehee, Cary) (Entered: 04/27/2020)

04/27/2020

35 MOTION for Leave to File Brief Amici Curiae by Amici Curiae. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A. Brief Amici Curiae) (Nickelhoff, Andrew) (Entered: 04/27/2020)

04/28/2020

TEXT-ONLY ORDER Granting 35 Motion for Leave to File. IT IS SO ORDERED. Issued by District Judge Linda V. Parker. (RLou) (Entered: 04/28/2020)

04/29/2020

36 [STRICKEN] Ex Parte MOTION for Leave to File Supplemental Brief in support of Motion to Dismiss by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan. (Potter, Steven) Modified on 4/29/2020 (RLou). (Entered: 04/29/2020)

04/29/2020

37 [STRICKEN] SUPPLEMENTAL BRIEF re 30 MOTION to Dismiss Petition for Habeas Corpus, Claims Against Bouchard and Childs and Response to Motion for TRO filed by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan. (Attachments: # 1 Exhibit A -Webb Emergency Motion, # 2 Exhibit B - Webb Opinion and Order, # 3 Exhibit C -Doyle Motion to Amend Sentence, # 4 Exhibit D - People's Response to Motion to Amend Sentence (Doyle), # 5 Exhibit E - Order Amending Sentence (Doyle), # 6 Exhibit F - Maass Emergency Motion for Amendment of Bond, # 7 Exhibit G - Order Re: Defendant's Motion to Reduce Bond (Maass), # 8 Exhibit H - Order Re: Conversion of Bond (Smith), # 9 Exhibit I - People's Response to OCJ Request (Doyle)) (Potter, Steven) Modified on 4/29/2020 (RLou). (Entered: 04/29/2020)

04/29/2020

38 ORDER Striking 36 Ex Parte MOTION for Leave to File Supplemental Brief, 37 Supplemental Brief. Signed by District Judge Linda V. Parker. (RLou) (Entered: 04/29/2020)

04/29/2020

39 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 4/29/2020 at 3:00 PM before District Judge Linda V. Parker (RLou) (Entered: 04/29/2020)

04/29/2020

40 TRANSCRIPT of Telephonic Status Conference held on 4/23/2020. (Court Reporter/Transcriber: Andrea Wabeke) (Number of Pages: 24) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 5/20/2020. Redacted Transcript Deadline set for 6/1/2020. Release of Transcript Restriction set for 7/28/2020. 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, the transcript is publicly available. (Wabeke, A) (Entered: 04/29/2020)

04/29/2020

Minute Entry for proceedings before District Judge Linda V. Parker: Telephonic Status Conference held on 4/29/2020. (Court Reporter: None Present, Not on the Record) (RLou) (Entered: 04/29/2020)

04/30/2020

41 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 4/30/2020 at 12:30 PM before District Judge Linda V. Parker (RLou) (Entered: 04/30/2020)

04/30/2020 42 DECLARATION by Dr. Carlos Franco-Paredes filed by All Plaintiffs (McGehee, Cary) (Entered: 04/30/2020)

04/30/2020

Minute Entry for proceedings before District Judge Linda V. Parker: Telephonic Status Conference held on 4/30/2020. (Court Reporter: None Present, Not on the Record) (RLou) (Entered: 05/01/2020)

05/01/2020

43 NOTICE OF HEARING BY VIDEO on 6 MOTION to Certify Class, 5 Emergency MOTION Preliminary Injunction, 30 MOTION to Dismiss Petition for Habeas Corpus, Claims Against Bouchard and Childs, 31 MOTION to Enforce Stipulation. Motion Hearing set for 5/4/2020 at 2:00 PM before District Judge Linda V. Parker. (RLou) (Entered: 05/01/2020)

05/01/2020 44 NOTICE Concerning Zoom Virtual Court Proceeding. (RLou) (Entered: 05/01/2020)

05/01/2020 45 ORDER Extending Temporary Restraining Order. Signed by District Judge Linda V. Parker. (RLou) (Entered: 05/01/2020)

05/04/2020 46 DECLARATION by Declaration of Antione Hutson filed by All Plaintiffs (McGehee, Cary) (Entered: 05/04/2020)

05/04/2020 47 DECLARATION by Dean Sullivan filed by All Plaintiffs (McGehee, Cary) (Entered: 05/04/2020)

05/04/2020 48 DECLARATION by Donald Wallace Chandler filed by All Plaintiffs (McGehee, Cary) (Entered: 05/04/2020)

05/04/2020 49 DECLARATION by Elizah Sheppard filed by All Plaintiffs (McGehee, Cary) (Entered: 05/04/2020)

05/04/2020 50 DECLARATION by Jacqueline Williams filed by All Plaintiffs (McGehee, Cary) (Entered: 05/04/2020)

05/04/2020 51 DECLARATION by Karla Lewis filed by All Plaintiffs (McGehee, Cary) (Entered: 05/04/2020)

05/04/2020

52 AMENDED NOTICE OF HEARING BY VIDEO on 6 MOTION to Certify Class, 5 Emergency MOTION for Preliminary Injunction, 30 MOTION to Dismiss, 31 MOTION to Enforce Stipulation. Motion Hearing RESET for 5/4/2020 at 2:30 PM before District Judge Linda V. Parker ***TIME CHANGE ONLY*** (RLou) (Entered: 05/04/2020)

05/04/2020 53 ATTORNEY APPEARANCE: Thomas Bradford Harvey appearing on behalf of All Plaintiffs (Harvey, Thomas) (Entered: 05/04/2020)

05/04/2020

Minute Entry for proceedings before District Judge Linda V. Parker: Motion Hearing by Video held on 5/4/2020 re 31 MOTION to Enforce Stipulation, 30 MOTION to Dismiss, 5 Emergency MOTION for Preliminary Injunction, 6 MOTION to Certify Class. (Motion Hearing Continued Until 5/6/2020 at 11:30 AM before District Judge Linda V. Parker) (Court Reporter: Andrea Wabeke) (RLou) (Entered: 05/04/2020)

05/06/2020 54 [STRICKEN] Letter from Deputy Gary McClure. (RLou) Modified on 1/6/2021 (RLou). (Entered: 05/06/2020)

05/06/2020 55 DECLARATION by Michael White filed by All Plaintiffs (McGehee, Cary) (Entered: 05/06/2020)

05/06/2020

Minute Entry for proceedings before District Judge Linda V. Parker: Motion Hearing held on 5/6/2020 re 31 MOTION to Enforce Stipulation, 30 MOTION to Dismiss, 6 MOTION to Certify Class 5 Emergency MOTION for Preliminary Injunction (Motion Hearing set for 5/7/2020 at 11:00 AM before District Judge Linda V. Parker). (Court Reporter: Andrea Wabeke) (RLou) (Entered: 05/06/2020)

05/07/2020

56 TRANSCRIPT of Preliminary Injunction Hearing-Volume 1 held on 5/4/2020. (Court Reporter/Transcriber: Andrea Wabeke) (Number of Pages: 137) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 5/28/2020. Redacted Transcript Deadline set for 6/8/2020. Release of Transcript Restriction set for 8/5/2020. 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, the transcript is publicly available. (Wabeke, A) (Entered: 05/07/2020)

05/07/2020

Minute Entry for proceedings before District Judge Linda V. Parker: Motion Hearing held on 5/7/2020 re 31 MOTION to Enforce Stipulation, 30 MOTION to Dismiss, 6 MOTION to Certify Class 5 Emergency MOTION for Preliminary Injunction. Disposition: The Parties shall try to work out a resolution on the 31 Motion to Enforce the Stipulation. The Parties shall submit a list of exhibits that were used during the hearings, by 10:00 AM on 5/8/2020. The Parties are allowed to file a Summary Brief or Finding of Fact, that is no more than 5 pages, by 5:00 PM on 5/12/2020. The Response to the 6 Motion to Certify the Class, shall be filed by 5/13/2020. (Court Reporter: Andrea Wabeke & Rene Twedt) (RLou) (Entered: 05/07/2020)

05/08/2020 57 Exhibit List by All Defendants. (Potter, Steven) (Entered: 05/08/2020)

05/08/2020 58 Exhibit List by All Plaintiffs. (McGehee, Cary) (Entered: 05/08/2020)

05/09/2020 59 Exhibit List by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan. (Potter, Steven) (Entered: 05/09/2020)

05/09/2020

60 TRANSCRIPT of Preliminary Injunction Hearing-Volume 2 held on 5/6/2020. (Court Reporter: Andrea Wabeke) (Number of Pages: 260) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 6/1/2020. Redacted Transcript Deadline set for 6/9/2020. Release of Transcript Restriction set for 8/7/2020. Transcript may be viewed at the court public terminal or purchased through the Court Reporter at 248.867.2842 before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Wabeke, A) (Entered: 05/09/2020)

05/10/2020

61 TRANSCRIPT of Preliminary Injunction Hearing-Volume 3A held on 5/7/2020. (Court Reporter: Andrea Wabeke) (Number of Pages: 111) The parties have 21 days to file with the court and Court Reporter a Redaction

Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 6/1/2020. Redacted Transcript Deadline set for 6/10/2020. Release of Transcript Restriction set for 8/10/2020. Transcript may be viewed at the court public terminal or purchased through the Court Reporter at 248.867.2842 before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Wabeke, A) (Entered: 05/10/2020)

05/10/2020

62 TRANSCRIPT of Preliminary Injunction Hearing - Volume 3B held on 05/07/2020. (Court Reporter/Transcriber: Rene L Twedt) (Number of Pages: 111) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 6/1/2020. Redacted Transcript Deadline set for 6/10/2020. Release of Transcript Restriction set for 8/10/2020. 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, the transcript is publicly available. (Twedt, R) (Entered: 05/10/2020)

05/11/2020

TEXT-ONLY ORDER - The Parties are allowed to file a Summary Brief or Finding of Fact, that is no more than 5 pages, by 5:00 PM on 5/13/2020. The Response to the 6 Motion to Certify the Class, shall be filed by 5/13/2020. IT IS SO ORDERED. Issued by District Judge Linda V. Parker. (RLou) (Entered: 05/11/2020)

05/11/2020 63 MOTION to Unseal DEPUTY GARY MCCLURES LETTER by All Plaintiffs. (McGehee, Cary) (Entered: 05/11/2020)

05/11/2020

64 MOTION to Supplement the Record by All Plaintiffs. (Attachments: # 1 Declaration of Richard Watkins) (McGehee, Cary) (Entered: 05/11/2020)

05/11/2020

65 Redacted Version of 60 TRANSCRIPT of Preliminary Injunction Hearing-Volume 2 held on 5/6/2020. Release of Transcript Restriction set for 8/7/2020. (Wabeke, A) (Entered: 05/11/2020)

05/12/2020 66 EXHIBIT Defs' Ex A to PI Hearing by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan (Potter, Steven) (Entered: 05/12/2020)

05/12/2020 67 EXHIBIT Defs' Ex B to PI Hearing by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan (Potter, Steven) (Entered: 05/12/2020)

05/12/2020 68 EXHIBIT Defs' Ex C to PI Hearing by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan (Potter, Steven) (Entered: 05/12/2020)

05/12/2020 69 EXHIBIT Defs' Ex D to PI Hearing by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan (Potter, Steven) (Entered: 05/12/2020)

05/12/2020 70 EXHIBIT Defs' Ex E to PI Hearing by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan (Potter, Steven) (Entered: 05/12/2020)

05/12/2020 71 EXHIBIT Defs' Ex F to PI Hearing by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan (Potter, Steven) (Entered: 05/12/2020)

05/12/2020 72 EXHIBIT Defs' Ex G to PI Hearing by Oakland County, Michigan (Potter, Steven) (Entered: 05/12/2020)

05/12/2020 73 EXHIBIT Defs' Ex H to PI Hearing by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan (Potter, Steven) (Entered: 05/12/2020)

05/12/2020 74 EXHIBIT Defs' Ex I to PI Hearing by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan (Potter, Steven) (Entered: 05/12/2020)

05/12/2020 75 EXHIBIT Defs' Ex K to PI Hearing by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan (Potter, Steven) (Entered: 05/12/2020)

05/12/2020 76 EXHIBIT Defs' Ex M to PI Hearing by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan (Potter, Steven) (Entered: 05/12/2020)

05/12/2020 77 EXHIBIT Defs' Ex N to PI Hearing by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan (Potter, Steven) (Entered: 05/12/2020)

05/12/2020 78 EXHIBIT Defs' Ex O to PI Hearing by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan (Potter, Steven) (Entered: 05/12/2020)

05/12/2020 79 EXHIBIT Defs' Ex P to PI Hearing by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan (Potter, Steven) (Entered: 05/12/2020)

05/12/2020 80 EXHIBIT Defs' Ex Q to PI Hearing by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan (Potter, Steven) (Entered: 05/12/2020)

05/12/2020 81 Exhibit List by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan. (Potter, Steven) (Entered: 05/12/2020)

05/12/2020

82 RESPONSE to 6 MOTION to Certify Class filed by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan. (Attachments: # 1 Exhibit A - PI Hearing Transcript, # 2 Exhibit B - Excerpts of OCJ Inmate Guide, # 3 Exhibit C - Cameron Acknowledgment of Inmate Guide, # 4 Exhibit D - People v Chandler, Mich Supreme Court Case No. 1612655) (Clark, Robert) (Entered: 05/12/2020)

05/12/2020

83 RESPONSE to 64 MOTION to Supplement the Record filed by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan. (Attachments: # 1 Exhibit A - Warrent Affidavit) (Clark, Robert) (Entered: 05/12/2020)

05/12/2020

TEXT-ONLY ORDER Granting 64 Motion to Supplement the Record, and 83 Motion to Supplement the Record. The Court is granting Plaintiffs' and Defendants' motions to supplement the record (ECF Nos. 64 and 83). While the Local Rules provide that "[m]otions must not be combined with any other stand-alone document" (e.g. a counter-motion combined with a response), the Court is excusing this requirement for the purposes of efficiency in this instance, only. IT IS SO ORDERED. Issued by District Judge Linda V. Parker. (RLou) (Entered: 05/12/2020)

05/13/2020

84 RESPONSE to 63 MOTION to Unseal DEPUTY GARY MCCLURES LETTER filed by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan. (Potter, Steven) (Entered: 05/13/2020)

05/13/2020 85 Proposed Findings of Fact by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan (Potter, Steven) (Entered: 05/13/2020)

05/13/2020 86 TRIAL BRIEF PLAINTIFFS SUMMARY POST-TRIAL BRIEF by All Plaintiffs (McGehee, Cary) (Entered: 05/13/2020)

05/15/2020

87 ORDER Requiring Response to 6 Motion to Certify Class. Reply due by 5/18/2020, focusing primarily on Defendants' exhaustion argument as applicable to 42 U.S.C. Section 1983. Signed by District Judge Linda V. Parker. (RLou) (Entered: 05/15/2020)

05/15/2020

88 RESPONSE to Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan. (Potter, Steven) (Entered: 05/15/2020)

05/15/2020 89 DEMAND for Trial by Jury by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan (Potter, Steven) (Entered: 05/15/2020)

05/18/2020

90 REPLY to Response re 6 MOTION to Certify Class filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Oakland County Jail Grievance Policy) (McGehee, Cary) (Entered: 05/18/2020)

05/18/2020

91 MOTION for Leave to File Surreply Regarding Plaintiffs' Motion for Class Certification by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan. (Attachments: # 1 Surreply, # 2 Exhibit A of Surreply - J. Cameron Grievance 5/13/20, # 3 Exhibit B of Surreply - 8 Inmate Grievances since Jan. 1 2020, # 4 Exhibit C of Surreply - PI Hearing Transcript) (Clark, Robert) (Entered: 05/18/2020)

05/19/2020

92 MOTION to Strike 91 MOTION for Leave to File Surreply Regarding Plaintiffs' Motion for Class Certification by All Plaintiffs. (McGehee, Cary) (Entered: 05/19/2020)

05/21/2020 93 OPINION. Signed by District Judge Linda V. Parker. (RLou) (Entered: 05/21/2020)

05/21/2020 94 ORDER. Signed by District Judge Linda V. Parker. (RLou) (Entered: 05/21/2020)

05/21/2020

95 NOTICE OF APPEAL by Oakland County, Michigan re 38 Order to Strike, 94 Order on Motion to Dismiss, Order on Motion for Leave to File, Order on Motion to Strike, Order on Motion for Preliminary Injunction, Order on Motion to Certify Class. Receipt No: AMIEDC7817104 - Fee: $ 505 - Fee Status: Fee Paid. (Potter, Steven) (Entered: 05/21/2020)

05/21/2020 96 Certificate of Service re 95 Notice of Appeal,. (NAhm) (Entered: 05/21/2020)

05/21/2020

97 Emergency MOTION to Stay re 94 Order on Motion to Dismiss, Order on Motion for Leave to File, Order on Motion to Strike, Order on Motion for Preliminary Injunction, Order on Motion to Certify Class and Request for Immediate Consideration by Oakland County, Michigan. (Potter, Steven) (Entered: 05/21/2020)

05/21/2020

98 MOTION for Reconsideration re 94 Order on Motion to Dismiss, Order on Motion for Leave to File, Order on Motion to Strike, Order on Motion for Preliminary Injunction, Order on Motion to Certify Class by All Plaintiffs. (McGehee, Cary) (Entered: 05/21/2020)

05/21/2020

TEXT-ONLY ORDER - Plaintiffs' shall file a response to Defendants' 97 Emergency Motion for a Stay, on or before Tuesday, May 26, 2020. Until the Court rules on Defendants' motion, the Court's Order and the deadlines therein remain in effect. IT IS SO ORDERED. Issued by District Judge Linda V. Parker. (RLou) (Entered: 05/21/2020)

05/22/2020

99 OPINION and ORDER Granting Plaintiffs' 98 Motion for Reconsideration. Signed by District Judge Linda V. Parker. (RLou) (Entered: 05/22/2020)

05/22/2020 100 ORDER from U.S. Court of Appeals - Sixth Circuit re 95 Notice of Appeal, filed by Oakland County, Michigan [Appeal Case Number 201469] (SKra) (Entered: 05/26/2020)

05/23/2020 101 ORDER from U.S. Court of Appeals - Sixth Circuit re 95 Notice of Appeal, filed by Oakland County, Michigan [Appeal Case Number 201469] (SKra) (Entered: 05/26/2020)

05/24/2020 102 ORDER from U.S. Court of Appeals - Sixth Circuit re 95 Notice of Appeal, filed by Oakland County, Michigan [Appeal Case Number 201469] (SKra) (Entered: 05/26/2020)

05/26/2020 103 ORDER from U.S. Court of Appeals - Sixth Circuit re 95 Notice of Appeal, filed by Oakland County, Michigan [Appeal Case Number 201469] (SKra) (Entered: 05/26/2020)

05/26/2020

104 RESPONSE to 97 Emergency MOTION to Stay re 94 Order on Motion to Dismiss, Order on Motion for Leave to File, Order on Motion to Strike, Order on Motion for Preliminary Injunction, Order on Motion to Certify Class and Request for Immediate Consideration filed by All Plaintiffs. (McGehee, Cary) (Entered: 05/26/2020)

05/27/2020 105 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 5/27/2020 at 3:30 PM before District Judge Linda V. Parker (RLou) (Entered: 05/27/2020)

05/27/2020

Minute Entry for proceedings before District Judge Linda V. Parker: Telephonic Status Conference held on 5/27/2020. (Court Reporter: None Present, Not on the Record) (RLou) (Entered: 05/27/2020)

05/28/2020 106 ORDER. Signed by District Judge Linda V. Parker. (RLou) (Entered: 05/28/2020)

05/28/2020 107 STIPULATED ORDER Regarding Disclosure and Use of Medical Information of Medically Vulnerable Inmates. Signed by District Judge Linda V. Parker. (RLou) (Entered: 05/28/2020)

05/28/2020 108 STIPULATED ORDER Regarding Disclosure and Use of the Names of Medically Vulnerable Subclass Members. Signed by District Judge Linda V. Parker. (RLou) (Entered: 05/28/2020)

05/29/2020 109 ORDER Regarding Jail Class Members With Non-Confirmed Medical Conditions. Signed by District Judge Linda V. Parker. (RLou) (Entered: 05/29/2020)

05/29/2020 110 STIPULATED ORDER Regarding Disciplinary Transfers at the Oakland County Jail During the Pendency of the Instant Litigation. Signed by District Judge Linda V. Parker. (RLou) (Entered: 05/29/2020)

05/31/2020 111 Bail Process Order. Signed by District Judge Linda V. Parker. (RLou) (Entered: 05/31/2020)

05/31/2020 112 Standard for Considering Bail Requests. Signed by District Judge Linda V. Parker. (RLou) (Entered: 05/31/2020)

05/31/2020

113 Standard Conditions of Release (Draft). Within two (2) business days, the parties may file a notice containing suggested edits and/or additions to the Standard Conditions of Release and, within one (1) business day of a submission, the opposing party may respond. Signed by District Judge Linda V. Parker. (RLou) (Entered: 05/31/2020)

05/31/2020 114 Bail Application Form. (RLou) (Entered: 05/31/2020)

05/31/2020 115 Bail Application Response Form. (RLou) (Entered: 05/31/2020)

06/01/2020 116 ORDER (Re Group #1) signed by District Judge Linda V. Parker. (KGri) (Entered: 06/01/2020)

06/02/2020

117 NOTICE by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan re 113 Order, Defendants' Proposed Additions to "Standard Conditions of Release [Draft]" (DeAgostino, Thomas) (Entered: 06/02/2020)

06/03/2020 118 RESPONSE to 117 Notice (Other) by All Plaintiffs. (Attachments: # 1 Exhibit 1 -REDLINE OF DEFENDANTS PROPOSED MODIFICATIONS) (McGehee, Cary) (Entered: 06/03/2020)

06/03/2020 119 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 6/5/2020 at 9:30 AM before District Judge Linda V. Parker (RLou) (Entered: 06/03/2020)

06/04/2020 120 NOTICE by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan Notice of Filing (Attachments: # 1 Exhibit EX A - OCSO AO, # 2 Exhibit EX B - OCSO PP) (Potter, Steven) (Entered: 06/04/2020)

06/04/2020 121 OPINION and ORDER Denying Defendants' 97 Emergency Motion for Stay Pending Appeal. Signed by District Judge Linda V. Parker. (RLou) (Entered: 06/04/2020)

06/05/2020

Minute Entry for proceedings before District Judge Linda V. Parker: Telephonic Status Conference held on 6/5/2020. (Court Reporter: Andrea Wabeke) (RLou) (Entered: 06/05/2020)

06/05/2020

122 [STRICKEN] NOTICE by All Plaintiffs PLAINTIFFS NOTICE OF BAIL APPLICATION FILINGS (Attachments: # 1 Application for Smith, A., # 2 Application for Hall, A., # 3 Application for Young, C., # 4 Application for Carter, D., # 5 Application for Gatson, J.,

# 6 Application for Jackson, H., # 7 Application for Cameron, J., # 8 Application for Cameron, M.) (McGehee, Cary) Modified on 6/5/2020 (RLou). (Entered: 06/05/2020)

06/05/2020

123 SEALED PLAINTIFFS NOTICE OF BAIL APPLICATION FILINGS by All Plaintiffs. (Attachments: # 1 Application of Smith, A., # 2 Application of Hall, B., # 3 Application of Young, C, # 4 Application of Cameron, J., # 5 Application of Cameron, M., # 6 Application of Jackson, H., # 7 Application of Gatson, J.) (McGehee, Cary) (Entered: 06/05/2020)

06/05/2020 124 ORDER Directing Clerk to Strike 122 Notice of Bail Application Filings. Signed by District Judge Linda V. Parker. (RLou) (Entered: 06/05/2020)

06/05/2020

125 NOTICE by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan NOTICE OF FILING (Attachments: # 1 Exhibit EX A - OCJ HOUSING, # 2 Exhibit EX B - TESTING, # 3 Exhibit EX C - OCJ MOVES) (Potter, Steven) (Entered: 06/05/2020)

06/05/2020

126 NOTICE by All Plaintiffs PLAINTIFFS NOTICE OF BAIL APPLICATION FILINGS (Attachments: # 1 Application of Smith, A., # 2 Application of Hall, A., # 3 Application of Cameron, J., # 4 Application of Young, C., # 5 Application of Cameron, M., # 6 Application of Jackson, H., # 7 Application of Gatson, J.) (McGehee, Cary) (Entered: 06/05/2020)

06/07/2020

127 NOTICE by Richard Briggs, Jamaal Cameron, Michael Cameron, Raj Lee, Matthew Saunders of Bail Applications (Attachments: # 1 Exhibit Application of Hutson, A., # 2 Exhibit Application of Quince, D., # 3 Exhibit Application of Lewandowski, D.) (Twinem, Alexandria) (Entered: 06/07/2020)

06/07/2020

128 SEALED Notice by Antoine Hutson, Daniel Quince, and David Lewandowski of Bail Applications by Richard Briggs, Jamaal Cameron, Michael Cameron, Raj Lee, Matthew Saunders. (Attachments: # 1 Exhibit Application of Hutson, A., # 2 Exhibit Application of Quince, D., # 3 Exhibit Application of Lewandowski, D.) (Twinem, Alexandria) (Entered: 06/07/2020)

06/08/2020

TEXT-ONLY ORDER: During the 6/5/20 telephonic status conference, Plaintiffs agreed to withdraw their Motion to Enforce Stipulation [ECF No. 31] in light of the Stipulated Order Regarding Disciplinary Transfers [ECF No. 110]. A Notice of Withdrawal shall be filed on or before 6/9/2020. IT IS SO ORDERED. Issued by District Judge Linda V. Parker. (RLou) (Entered: 06/08/2020)

06/08/2020

TEXT-ONLY ORDER: As discussed at the June 5, 2020 status conference, the Court's May 31, 2020 Order [ECF No. 111] is AMENDED in that on Friday of each week, rather than within twentyfour hours, Defendants shall send Class Counsel and the Court via email all relevant information regarding new detainees at the Oakland County Jail who should be added to the list of Medically-Vulnerable Inmates or the non-confirmed list of Medically-Vulnerable Inmates. IT IS SO ORDERED. Issued by District Judge Linda V. Parker. (RLou) (Entered: 06/08/2020)

06/08/2020 129 NOTICE by All Plaintiffs of withdrawal of 31 MOTION to Enforce Stipulation . (McGehee, Cary) (Entered: 06/08/2020)

06/08/2020

130 NOTICE by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan re 126 Notice (Other), NOTICE OF FILING RESPONSES TO PLAINTIFFS' BAIL APPLICATIONS RE: ECF NO. 126 (Attachments: # 1 Exhibit Response to ECF No. 126-1 [SMITH, A], # 2 Exhibit Response to ECF No. 126-2 [HALL, A], # 3 Exhibit Response to ECF No. 126-3 [CAMERON, J], # 4 Exhibit Response to ECF No. 126-4 [YOUNG, C], # 5 Exhibit Response to ECF No. 126-5 [CAMERON, M], # 6 Exhibit Response to ECF No. 126-6 [JACKSON, H], # 7 Exhibit Response to ECF No. 126-7 [GATSON, J]) (Potter, Steven) (Entered: 06/08/2020)

06/08/2020 131 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 6/12/2020 at 2:00 PM before District Judge Linda V. Parker (RLou) (Entered: 06/08/2020)

06/08/2020 132 NOTICE by All Plaintiffs re 130 Notice (Other),, 126 Notice (Other), Notice re Replies (Santhanam, Krithika) (Entered: 06/08/2020)

06/08/2020 133 ORDER from U.S. Court of Appeals - Sixth Circuit re 95 Notice of Appeal, filed by Oakland County, Michigan [Appeal Case Number 201469] (SKra) (Entered: 06/09/2020)

06/09/2020

134 NOTICE by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan re 127 Notice (Other), NOTICE OF FILING RESPONSES TO PLAINTIFFS' BAIL APPLICATIONS RE: ECF NO. 127 (Attachments: # 1 Exhibit Response to ECF No. 127-1 [HUTSON, A], # 2 Exhibit Response to ECF No. 127-2 [SIMMS, D], # 3 Exhibit Response to ECF No. 127-3 [LEWANDOWSKI, D]) (Potter, Steven) (Entered: 06/09/2020)

06/09/2020

135 NOTICE by All Plaintiffs re 134 Notice (Other), 127 Notice (Other), 128 Sealed Document - Other, Reply in Support of Bail Application of Hutson, A. (Attachments: # 1 Exhibit Declaration of Hutson, A.) (Twinem, Alexandria) (Entered: 06/09/2020)

06/09/2020

136 SEALED Notice of Reply in Support of Bail Application of Hutson, A. re 134 Notice (Other), 127 Notice (Other), 128 Sealed Document Other, by All Plaintiffs. (Attachments: # 1 Exhibit Declaration of Hutson, A.) (Twinem, Alexandria) (Entered: 06/09/2020)

06/10/2020

137 [DOCUMENT IS TITLED: DECLARATION OF VICKI-LYN WARREN] AFFIDAVIT re 136 Sealed Document - Other, of Vicki-Lyn Warren by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan (DeAgostino, Thomas) Modified on 6/11/2020 (LGra). (Entered: 06/10/2020)

06/10/2020

138 SEALED Declaration of Vicki-Lyn Warren in Response to Plaintiff's Application for Enlargement Regarding Antoine Hutson (ECF Nos. 1271, 128-1, 136) re 136 Sealed Document - Other, by Michael Bouchard, Curtis D. Childs, Oakland County, Michigan. (DeAgostino, Thomas) (Entered: 06/10/2020)

06/11/2020

TEXT-ONLY NOTICE: Telephonic Status Conference on 6/12/2020 is Cancelled (RLou) (Entered: 06/11/2020)

06/11/2020 139 ORDER from U.S. Court of Appeals - Sixth Circuit re 95 Notice of Appeal, filed by Oakland County, Michigan [Appeal Case Number 201469] (SKra) (Entered: 06/12/2020)

07/02/2020

140 SEALED TRANSCRIPT of Status Conference held on 6/5/2020. (Court Reporter/Transcriber: Andrea Wabeke) (Number of Pages: 83) Attorneys of record may purchase a copy of the transcript from the Court Reporter/Transcriber. (Wabeke, A) (Entered: 07/02/2020)

07/09/2020 141 OPINION from U.S. Court of Appeals - Sixth Circuit re 95 Notice of Appeal, filed by Oakland County, Michigan [Appeal Case Number 201469] (SKra) (Entered: 07/10/2020)

07/31/2020 142 MANDATE from U.S. Court of Appeals - Sixth Circuit as to 141 Appeal Order/Opinion/Judgment, 95 Notice of Appeal, filed by Oakland County, Michigan [Appeal Case Number 20-1469] (TTho) (Entered: 07/31/2020)

08/05/2020

TEXT-ONLY ORDER: A Proposed Joint Discovery Plan shall be filed by Monday, August 10, 2020. Plaintiffs may file a motion (limited to five pages) detailing the legal bases for their disputed requests. If Plaintiffs opt to file a motion, Defendants will be given an opportunity to respond (also limited to five pages). IT IS SO ORDERED. Issued by District Judge Linda V. Parker. (RLou) (Entered: 08/05/2020)

08/06/2020 143 ATTORNEY APPEARANCE: Trevor S. Potter appearing on behalf of All Defendants (Potter, Trevor) (Entered: 08/06/2020)

08/06/2020

AMENDED TEXT-ONLY ORDER: A Proposed Joint Discovery Plan shall be filed by Thursday, August 13, 2020. Plaintiffs may file a motion (limited to five pages) detailing the legal bases for their disputed requests. If Plaintiffs opt to file a motion, Defendants will be given an opportunity to respond (also limited to five pages). IT IS SO ORDERED. Issued by District Judge Linda V. Parker. (RLou) (Entered: 08/06/2020)

08/13/2020 144 MOTION Expedited Discovery of Disputed Discovery Requests by All Plaintiffs. (Carlson, Kevin) (Entered: 08/13/2020)

08/13/2020 145 DISCOVERY plan jointly filed pursuant to Federal Rules of Civil Procedure 26(f) (McGehee, Cary) (Entered: 08/13/2020)

08/14/2020

Text-Only Order of reassignment from Magistrate Judge Michael J. Hluchaniuk to Magistrate Judge Patricia T. Morris pursuant to Administrative Order. (SSch) (Entered: 08/14/2020)

08/17/2020

146 SCHEDULING ORDER (PHASE I): Discovery due by 4/2/2021, Dispositive Motion Cut-off set for 5/17/2021. Signed by District Judge Linda V. Parker. (Refer to image for additional dates) (RLou) (Entered: 08/17/2020)

08/17/2020 147 ORDER Requiring Response to 144 Motion Expedited Discovery of Disputed Discovery Requests. Response due by 8/20/2020. Signed by District Judge Linda V. Parker. (RLou) (Entered: 08/17/2020)

08/19/2020 148 MOTION to Vacate by Michael Bouchard, Oakland County, Michigan. (Potter, Steven) (Entered: 08/19/2020)

08/19/2020 149 MOTION to Dismiss by Michael Bouchard, Oakland County, Michigan. (Potter, Steven) (Entered: 08/19/2020)

08/19/2020 150 RESPONSE to 144 MOTION Expedited Discovery of Disputed Discovery Requests filed by Michael Bouchard, Oakland County, Michigan. (Potter, Steven) (Entered: 08/19/2020)

08/19/2020 151 ORDER Requiring Response to 148 Motion to Vacate. Response due by 8/26/2020. Signed by District Judge Linda V. Parker. (RLou) (Entered: 08/19/2020)

08/26/2020

152 REPLY to Response re 144 MOTION Expedited Discovery of Disputed Discovery Requests filed by All Plaintiffs. (Attachments: # 1 Exhibit Juwad Malike Jones Declaration, # 2 Exhibit Le Lin Declaration) (Carlson, Kevin) (Entered: 08/26/2020)

08/26/2020 153 RESPONSE to 148 MOTION to Vacate filed by All Plaintiffs. (Attachments: # 1 Exhibit Attachment A) (Carlson, Kevin) (Entered: 08/26/2020)

08/28/2020 154 REPLY to Response re 148 MOTION to Vacate filed by Michael Bouchard, Oakland County, Michigan. (Potter, Steven) (Entered: 08/28/2020)

08/28/2020 155 MOTION to Strike 152 Reply to Response to Motion for Expedited Discovery by Michael Bouchard, Oakland County, Michigan. (Potter, Steven) (Entered: 08/28/2020)

08/31/2020

TEXT-ONLY ORDER: Denying the 155 Motion to Strike. The 147 Order Requiring a Response to Plaintiffs' 144 Motion for Expedited Discovery, like the 151 Order Requiring a Response to Defendants' 148 Motion to Vacate, requires a response by a specific deadline and neither requires nor prohibits a reply. IT IS SO ORDERED. Issued by District Judge Linda V. Parker. (RLou) (Entered: 08/31/2020)

09/02/2020 156 DECLARATION by Vicki-Lyn Warren filed by Michael Bouchard, Oakland County, Michigan (Potter, Trevor) (Entered: 09/02/2020)

09/02/2020 157 RESPONSE to 149 MOTION to Dismiss filed by All Plaintiffs. (Carlson, Kevin) (Entered: 09/02/2020)

09/02/2020 158 EXHIBIT A and EXHIBIT B re 157 Response to Motion by All Plaintiffs (Attachments: # 1 Exhibit) (Carlson, Kevin) (Entered: 09/02/2020)

09/15/2020 159 REPLY to Response re 149 MOTION to Dismiss filed by Michael Bouchard, Oakland County, Michigan. (Potter, Steven) (Entered: 09/15/2020)

11/18/2020 160 NOTICE and ORDER of Withdrawal of Attorney for Plaintiffs. Signed by District Judge Linda V. Parker. (RLou) (Entered: 11/18/2020)

11/19/2020 161 NOTICE of Withdrawal of Attorney Krithika Santhanam for on behalf of All Plaintiffs. (Santhanam, Krithika) (Entered: 11/19/2020)

12/03/2020

162 MOTION TO ENFORCE STIPULATED AGREEMENT by All Plaintiffs. (Attachments: # 1 Exhibit 1 - Declaration of David Kucharski (Supplemental), # 2 Exhibit 2 - Declaration of Mario Cabalka, # 3 Exhibit 3 - Declaration of Antonio Fenn, # 4 Exhibit 4 - Declaration of Rodney Hicks, # 5 Exhibit 5 - Declaration of Dennis Carter, # 6 Exhibit 6 Declaration of Steven Johnson, # 7 Exhibit 7 - Notice of Breach, # 8 Exhibit 8 - Email exchange) (McGehee, Cary) (Entered: 12/03/2020)

12/04/2020 163 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 12/10/2020 at 9:30 AM before District Judge Linda V. Parker (RLou) (Entered: 12/04/2020)

12/09/2020

TEXT-ONLY NOTICE: Telephonic Status Conference on 12/10/2020 is Cancelled re 163 Notice to Appear. (RLou) (Entered: 12/09/2020)

12/09/2020 164 NOTICE of Appearance by Syeda F. Davidson on behalf of All Plaintiffs. (Davidson, Syeda) (Entered: 12/09/2020)

12/09/2020

165 NOTICE OF HEARING BY VIDEO CONFERENCE on 148 MOTION to Vacate, 149 MOTION to Dismiss, 162 MOTION TO ENFORCE STIPULATED AGREEMENT, 144 MOTION Expedited Discovery of Disputed Discovery Requests. Motion Hearing set for 12/14/2020 at 2:00 PM before District Judge Linda V. Parker. |Zoom Webinar Information: https://www.zoomgov.com/j/1609068813?pwd=dUJLWmFVUTBQODFr WENjdm5YUUtnZz09 Passcode: 540772 Or iPhone one-tap : US: +16692545252,,1609068813# or +16468287666,,1609068813#| (RLou) (Entered: 12/09/2020)

12/11/2020

166 RESPONSE to 162 MOTION TO ENFORCE STIPULATED AGREEMENT filed by Michael Bouchard, Oakland County, Michigan. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit A - Aff of Warren, # 3 Exhibit B - MDOC Ltr, # 4 Exhibit C - Photos of HALT, # 5 Exhibit D - Aff of Lt Vida, # 6 Exhibit E - Photos, # 7 Exhibit F Work Orders, # 8 Exhibit G - Email 11.4.20, # 9 Exhibit H - Email 11.6.20, # 10 Exhibit I - Email 11.10.20, # 11 Exhibit J - Email 11.11.20, # 12 Exhibit K - Protocols, # 13 Exhibit L - Email 11.16.20, # 14 Exhibit M - Email 11.20.20, # 15 Exhibit N - Deputy Investigation, # 16 Exhibit O - Testing Calendar, # 17 Exhibit P - Example Q Signs, # 18 Exhibit Q OCJ Daily Tracker, # 19 Exhibit R - Daily Pop Rpt, # 20 Exhibit S - Aff of Maj Childs, # 21 Exhibit T - Letters, # 22 Exhibit U - Email 11.24.20, # 23 Exhibit V - Aff of Bastianelli, # 24 Exhibit W - Aff of Root, # 25 Exhibit X - Aff of Richardson, # 26 Exhibit Y - Aff of Wargel, # 27 Exhibit Z - Aff of DeMulder, # 28 Exhibit AA - Aff of Carnes, # 29 Exhibit BB - Aff of Tuttle, # 30 Exhibit CC - Aff of Hein, # 31 Exhibit DD - Aff of Phillips, # 32 Exhibit EE - Aff of McKinney, # 33 Exhibit FF - Aff of Beane) (Potter, Steven) (Entered: 12/11/2020)

12/13/2020 167 AMENDED 166 Response to Motion,,,,, by Michael Bouchard, Oakland County, Michigan (Clark, Robert) (Entered: 12/13/2020)

12/14/2020 168 REPLY to Response re 162 MOTION TO ENFORCE STIPULATED AGREEMENT filed by All Plaintiffs. (McGehee, Cary) (Entered: 12/14/2020)

12/14/2020

Minute Entry for proceedings before District Judge Linda V. Parker: Motion Hearing held on 12/14/2020 re 148 MOTION to Vacate filed by Oakland County, Michigan, Michael Bouchard, 162 MOTION TO ENFORCE STIPULATED AGREEMENT filed by Richard Briggs, Matthew Saunders, Jamaal Cameron, Michael Cameron, Raj Lee, 149 MOTION to Dismiss filed by Oakland County, Michigan, Michael Bouchard, 144 MOTION Expedited Discovery of Disputed Discovery Requests filed by Richard Briggs, Matthew Saunders, Jamaal Cameron, Michael Cameron, Raj Lee (Court Reporter: Andrea Wabeke) (RLou) (Entered: 12/14/2020)

12/15/2020 169 OPINION and ORDER Denying Defendants' 148 Motion to Vacate; and 149 Motion to Dismiss. Signed by District Judge Linda V. Parker. (RLou) (Entered: 12/15/2020)

12/21/2020 170 NOTICE by All Plaintiffs of withdrawal of 144 MOTION Expedited Discovery of Disputed Discovery Requests . (McGehee, Cary) (Entered: 12/21/2020)

12/30/2020 171 STIPULATION AND ORDER to Amend Scheduling Order. Signed by District Judge Linda V. Parker. (RLou) (Entered: 12/30/2020)

12/30/2020

172 AMENDED SCHEDULING ORDER (PHASE I): Discovery due by 8/6/2021, Dispositive Motion Cut-off set for 9/20/2021. Signed by District Judge Linda V. Parker. (Refer to image for additional dates) (RLou) (Entered: 12/30/2020)

12/30/2020 173 ORDER REFERRING OTHER MATTERS to Magistrate Judge Morris: Settlement Conference - To be conducted sometime after August 6, 2021. Signed by District Judge Linda V. Parker. (RLou) (Entered: 12/30/2020)

01/04/2021 174 NOTICE TO APPEAR: Settlement Conference set for 8/17/2021 10:00 AM before Magistrate Judge Patricia T. Morris (KCas) (Entered: 01/04/2021)

01/04/2021

175 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set for 1/13/2021 at 2:30 PM before District Judge Linda V. Parker ***THE CONNECTION INFORMATION WILL BE SENT TO COUNSEL OF RECORD*** (RLou) (Entered: 01/04/2021)

01/06/2021 176 OPINION and ORDER Striking McClure Letter from the Docket and Denying as Moot Plaintiffs' 63 Motion to Unseal the Letter. Signed by District Judge Linda V. Parker. (RLou) (Entered: 01/06/2021)

01/13/2021

Minute Entry for proceedings before District Judge Linda V. Parker: Zoom Status Conference held on 1/13/2021. (Court Reporter: Andrea Wabeke) (RLou) (Entered: 01/13/2021)

01/26/2021

177 AMENDMENT to STIPULATED ORDER Regarding Disciplinary Transfer at the Oakland County Jail During the Pendency of the Instant Litigation. Signed by District Judge Linda V. Parker. (RLou) (Entered: 01/26/2021)

PACER Service Center Transaction Receipt

PACER Login:
Description:
Billable Pages:
Exempt flag:

02/07/2021 22:22:57

CRClearinghouse Client Code:

Docket Report

Search Criteria:

21

Cost:

Not Exempt

Exempt reason:

Peach 2:20-cv-10949-LVPPTM 2.10
Not Exempt

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.1 Page 1 of 71
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,
Defendants.

Case No. Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief Class Action
IMMEDIATE RELIEF SOUGHT

CLASS ACTION COMPLAINT 1. The rate at which the novel coronavirus and its resulting disease, COVID-19, is ravaging the globe is unprecedented in modern society. The situation is especially grave in the state of Michigan, which currently ranks third in the country

1

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.2 Page 2 of 71
for coronavirus-related deaths.1 Hospitals in Southeast Michigan are already suffering and struggling to keep up with the rush of COVID-19 related patients.2 The state’s chief medical officer, Dr. Joneigh Khaldun, declared during a press conference on April 6, 2020 that state hospitals are overwhelmed because there are no signs that the rate of infection is slowing down.3
2. A mass outbreak of COVID-19 inside Michigan’s jails and prisons is a major threat to the state’s already fragile healthcare system. An outbreak in the Oakland County Jail (“Jail”) will undoubtedly cause death and devastation to countless lives, including the people jailed, the people who work in the jail, and their families. Its impact will be felt across the state as valuable medical resources— already in short supply—are completely depleted. Medical experts have stressed that urgent action in the jails is an essential public health priority given that any
1 Bobby Allyn, After Surge In Cases, Michigan Now 3rd In Country For Coronavirus Deaths, NPR (Mar. 31, 2020), https://www.npr.org/sections/coronavirus-live-updates/2020/03/31/824738996/ after-surge-in-cases-michigan-now-3rd-in-country-for-coronavirus-deaths. 2 See, e.g., Kristen Jordan Shamus and Darcie Moran, Nurses Protest Conditions at Detroit’s Sinai-Grace, Said They Were Told to Leave, Detroit Free Press (Apr. 6, 2020), https://www.freep.com/story/news/health/2020/04/06/detroit-dmc-sinaigrace-nurses/2953385001/?utm_source=oembed&utm_medium=onsite&utm _campaign=storylines&utm_content=news&utm_term=4566614002. 3 Courtney Vinopal, WATCH: Michigan Gov. Gretchen Whitmer gives coronavirus update, PBS (Apr. 6, 2020), https://www.pbs.org/newshour/health/watch-livemichigan-gov-gretchen-whitmer-gives-coronavirus-update.
2

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.3 Page 3 of 71
outbreak will place incredible strain on regional hospitals and health centers. These institutions would bear the brunt of having to treat all infected people and would have fewer resources available to treat anyone who required medical attention, which will be disastrous when medical needs overwhelm the institutions’ resources.4 Dr. Marc Stern, an expert in public health in jails and prisons, has emphasized the need to “reduce the number of persons incarcerated” in order to accomplish “critical public health aims” of protecting both incarcerated people and the public at large.5
3. Understanding the dire need for immediate action, medical and public health experts have urged sweeping precautionary measures in everyday life to slow the spread of this virus. Yet the very steps they deem necessary—such as regular handwashing, sanitizing one’s environment, access to testing, prompt medical attention, and wearing protective gear—have been made impossible for the people confined in the Jail by the very officials responsible for their well-being.
4. Social distancing, the practice of maintaining at least six feet between you and others, is the single most important precaution anyone can take to prevent
4 Ex. 1, Decl. of Dr. Marc Stern ¶ 11; see also Ex. 2, Expert Decl. of Dr. Jaimie Meyer ¶¶ 16, 22, , Velesaca v. Wolf, Case No. 1:20-cv-01803-AKH, ECF Doc. 42 (S.D.N.Y. Mar. 16, 2020); Ex. 3, Expert Decl. of Elizabeth Y. Chiao ¶ 28, Russell, et al. v. Harris County, Texas, No. 4:19-cv-00226, ECF Doc. 32-2 (S.D. Tex. Mar. 27, 2020). 5 Stern Decl. ¶¶ 10-11.
3

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.4 Page 4 of 71
the spread of Covid-19.6 Governors, mayors, and local city and county officials
have all urged the public to practice social distancing.7 Gatherings where it is
6 Coronavirus 2019, Centers for Disease Control, https://www.cdc.gov/ coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html; Ryan Miller, Coronavirus: What is social distancing? When should I quarantine versus isolate?, USA Today (Mar. 12, 2020), https://www.usatoday.com/story/news/health/2020 /03/11/coronavirus-pandemic-quarantine-social-distancing-covid-19defined/5020755002/ (“The CDC defines social distancing as ‘remaining out of congregate settings, avoiding mass gatherings and maintaining distance (approximately 6 feet) from others when possible.’”); Bruce Lee, What Is Social Distancing? Here Are 10 Ways To Keep The Coronavirus Away, Forbes (Mar. 14, 2020), https://www.forbes.com/sites/brucelee/2020/03/14/with-covid-19coronavirus-here-are-10-ways-to-social-distance-yourself/#1f51f86f606c; On Apr 5, 9 pm, light candles, diya for 9 min to dispel darkness of Coronavirus: PM Modi to nation, MSN (Apr. 4, 2020) https://www.msn.com/en-in/news/other/on-apr-5-9pm-light-candles-diya-for-9-min-to-dispel-darkness-of-coronavirus-pm-modi-tonation/ar-BB126Jzj; Al Dothan, Coffee County has first case of COVID-19, WTVY (Apr. 2, 2020), https://www.wtvy.com/content/news/Coffee-County-hasfirst-case-of-COVID-19-569327441.html; Taj Simmons, As Roanoke County reports second case of COVID-19, 'It’s upended every aspect of our normal lives’ WSLS (Mar. 27, 2020), https://www.wsls.com/news/local/2020/03/28/as-roanokecounty-reports-second-case-of-covid-19-its-upended-every-aspect-of-our-normallives/; Suzannah Lyons, Olivia Willis, Is coronavirus airborne, and how does it spread?, ABC (Mar. 29, 2020) https://www.abc.net.au/news/health/2020-03-28/iscoronavirus-airborne-covid19-australia/12090974
7 Michigan closes bars, stops restaurant dine-in, further limits gatherings, WOODTV (Mar. 16, 2020), https://www.woodtv.com/health/coronavirus /whitmer-orders-bars-restaurants-to-close-due-to-virus-concerns/; Doug Mainwaring, Governor urges ‘social distancing’ even among families at home, LifeSite (Apr. 3, 2020), https://www.lifesitenews.com/news/governor-urges-socialdistancing-even-among-families-at-home; Christian Berthelsen, Elise Young, N.J., N.Y. Urge Residents to Stay Put With Peak Approaching, Bloomberg (Apr. 9, 2020), https://www.bloomberg.com/news/articles/2020-04-09/murphy-says-socialdistancing-is-slowing-virus-spread-in-n-j; Laura Ziegler, Act Like You Have The Virus, Kansas City Officials Urge As They Step Up Social Distance Enforcement, KCUR (Mar. 30, 2020), https://www.kcur.org/post/act-you-have-virus-kansas-city-
4

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.5 Page 5 of 71
impossible to maintain social distancing have been cancelled across the country and
world.8 The police in several states are arresting or ticketing people who fail to
maintain six feet of separation between themselves and others.9 But social
distancing is impossible in the Jail as it is currently operated and at its current
population levels.
officials-urge-they-step-social-distance-enforcement#stream/0; Kendall Downing, City, county officials urge social distancing over Easter holiday weekend; City braces for COVID-19 budget impact, WMC5 (Apr. 8, 2020), https://www.wmcactionnews5.com/2020/04/08/city-county-officials-urge-socialdistancing-over-easter-holiday-weekend-city-braces-covid-budget-impact/; Many People Will Get COVID-19’ Says Mayor Garcetti As He Urges LA To Practice Social Distancing, Self-Quarantine, CBSN Los Angeles (Mar. 14, 2020), https://losangeles.cbslocal.com/2020/03/14/many-people-will-get-covid-19-saysmayor-garcetti-as-he-urges-la-to-practice-social-distancing-self-quarantine/. 8 A List of What’s Been Canceled Because of the Coronavirus, N.Y. Times (Apr. 1, 2020), https://www.nytimes.com/article/cancelled-events-coronavirus.html. 9 Hannah Fry, Manhattan Beach issues 129 citations for coronavirus socialdistancing, Los Angeles Times (Apr. 7, 2020), https://www.latimes.com/california /story/2020-04-07/manhattan-beach-citations-coronavirus-social-distancingviolations; Detroit police: Property owners will get social distancing violation ticket if crowd gathers, Fox 2 (Apr. 6, 2020), https://www.fox2detroit.com/news /detroit-police-property-owners-will-get-social-distancing-violation-ticket-ifcrowd-gathers; Katie Canales, Police in California have started ticketing people having picnics and congregating in beach areas as law enforcement cracks down on violators of the statewide stay-at-home order, Business Insider (Apr. 6, 2020), https://www.businessinsider.com/california-giving-people-tickets-stay-at-homecoronavirus-2020-4; Amanda Jackson, Police are arresting and fining people for violating social distancing orders, CNN (Apr. 1, 2020), https://www.cnn.com /2020/03/31/us/violating-coronavirus-orders-trnd/index.html. Alice Speria, NYPD’S AGGRESSIVE POLICING RISKS SPREADING THE CORONAVIRUS, The Intercept (Apr. 3, 2020), https://theintercept.com/2020/04/03/nypd-socialdistancing-arrests-coronavirus/.
5

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.6 Page 6 of 71
5. Given reports of at least 23 confirmed cases of COVID-19,10 an outbreak in the Jail is imminent and will cause death and devastation to countless lives, including the people jailed, the people who work in the jail, their families, and the public at large. The County and the people responsible for operating the Jail, however, have failed to adequately respond to the obvious and urgent threats posed by this growing pandemic. The over-800 people confined in the Jail are forced to suffer unconstitutional conditions that blatantly deny them the precautions and protections necessary to mitigate against the risks of COVID-19.
6. Human beings confined inside the Jail sleep within one to three feet of each other, are denied medical treatment or must wait several days to receive it, do not have adequate soap, and share multiple common areas without adequate supplies to clean them. They are shuffled from cell to cell with no regard for which people are symptomatic and which are not. They cannot protect themselves, including by practicing social distancing, and they do not have access to the necessary hygiene services and facilities to avoid infection, which puts them at imminent risk of substantial bodily harm and death.
7. People confined in jails and prisons must “be furnished with the basic
10 Aileen Wingblad, 23 Oakland County Jail inmates have confirmed COVID-19, Oakland Press (Apr. 10, 2020), https://www.theoaklandpress.com/news /coronavirus/23-oakland-county-jail-inmates-have-confirmed-covid19/article_9cb8f138-7b69-11ea-ab69-0f769f8495c1.html.
6

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.7 Page 7 of 71
human needs, one of which is ‘reasonable safety.’” Helling v. McKinney, 509 U.S. 25, 33-34 (1993) (citations omitted). Yet Plaintiffs, as well as the class and subclasses they represent, all face imminent risk of serious injury or death once they are exposed to COVID-19 in the Jail. Starkly, in the midst of a public health crisis, the people currently confined at the Jail have no adequate safeguards against the severe threat of this novel coronavirus—all they ask is to be treated humanely while they are in Oakland County’s custody during this perilous time.
8. Because of the ongoing, systemic violations of Petitioners/Plaintiffs’ constitutional rights, Petitioners/Plaintiffs seek class-wide relief requiring Defendants to take basic and necessary steps to safeguard the health of people who, due to the nature of their confinement, are not only at heightened risk of infection and death but are also rendered unable to take the simple steps to protect themselves that have become a necessary part of everyday life for people not in jail. Petitioners/Plaintiffs further request a writ of habeas corpus for all those who are medically vulnerable and at particularly grave risk of infection and death from COVID-19 or, in the alternative, request an injunction requiring that they be transferred to home confinement for the duration of the COVID-19 pandemic.
JURISDICTION AND VENUE 9. This is a civil rights action arising under 42 U.S.C. § 1983, 28 U.S.C. § 2241, and 28 U.S.C. § 2201, et seq., as well as the Eighth and Fourteenth
7

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.8 Page 8 of 71
Amendments to the United States Constitution. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343, 28 U.S.C. § 2241, and 28 U.S.C. § 1651.
10. Venue is proper pursuant to 28 U.S.C. § 1391 because a substantial part of the events and omissions giving rise to these claims occurred and continue to occur in this judicial district.
PARTIES 11. Petitioner/Plaintiff Jamaal Cameron currently resides in Oakland County, Michigan. At all times relevant to this Complaint, Mr. J. Cameron was in the custody of Defendant Bouchard, in his capacity as Oakland County Sheriff, at the Jail. He suffers from bronchitis and hypertension. He also has sleep apnea, which he has not received treatment for since entering the Jail. He is housed in “the Tank,” a dank and crowded holding cell with no bunks, where he sleeps on the concrete floor in extremely close proximity to people who have symptoms of COVID-19. He was moved to the Tank, from another jail building with far fewer suspected cases of COVID-19, as punishment for raising concerns about the safety conditions in the jail. Mr. J. Cameron is in the Jail following conviction. He represents the Class, as well as the Post-conviction Subclass and Medically Vulnerable Subclass. 12. Petitioner/Plaintiff Richard Briggs currently resides in Oakland
8

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.9 Page 9 of 71
County, Michigan. At all times relevant to this Complaint, Mr. Briggs was in the custody of Defendant Bouchard, in his capacity as Oakland County Sheriff, at the Jail. He is confined to the Jail because he cannot afford to pay his bond. He is awaiting trial and is presumptively innocent. He represents the Class, as well as the Pre-trial Subclass.
13. Petitioner/Plaintiff Raj Lee currently resides in Oakland County, Michigan. At all times relevant to this Complaint, Mr. Lee was in the custody of Defendant Bouchard, in his capacity as Oakland County Sheriff, at the Jail. He is housed in “the Tank,” a dank and crowded holding cell with no bunks, where he sleeps on the concrete floor in extremely close proximity to people who have symptoms of COVID-19. He was moved to the Tank, from another jail building with far fewer suspected cases of COVID-19, as punishment for raising concerns about the safety conditions in the Jail. He represents the Class, as well as the Postconviction Subclass.
14. Petitioner/Plaintiff Michael Cameron currently resides in Oakland County, Michigan. At all times relevant to this Complaint, Mr. M. Cameron was in the custody of Defendant Bouchard, in his capacity as Oakland County Sheriff, at the Oakland County Jail. He suffers from cardiac disease, hypertension, and obesity. He is not able to get medical attention. He represents the Class, as well as the Postconviction Subclass and Medically Vulnerable Subclass.
9

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.10 Page 10 of 71
15. Petitioner/Plaintiff Matthew Saunders currently resides in Oakland County, Michigan. At all times relevant to this Complaint, Mr. Saunders was in the custody of Defendant Bouchard, in his capacity as Oakland County Sheriff, at the Jail. He cannot get medical attention and has not had access to soap for over a week. He is awaiting trial and is presumptively innocent. He represents the Class, as well as the Pre-trial Subclass.
16. Defendant Oakland County is a political subdivision of the State of Michigan that can be sued in its own name. Oakland County is responsible for all acts of the Oakland County Sheriff’s Office. The Oakland County Sheriff’s Office oversees and administers the Jail and is responsible for the custody and care of all persons detained or incarcerated in the Jail, and it currently has immediate custody over Petitioners/Plaintiffs and other putative class members.
17. Defendant Michael Bouchard is the Sheriff of Oakland County and is responsible for operating the Jail and maintaining the care and custody of people confined at the Jail. He is being sued in his official capacity.
18. Defendant Curtis Childs is the Commander of Corrective Services for the Oakland County Sheriff’s Office and is responsible for operating the Jail. He is being sued in his official capacity.
10

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.11 Page 11 of 71
THE GRAVE RISK OF HARM POSED BY THE COVID-19 PANDEMIC REQUIRES AN EMERGENCY RESPONSE
19. We are in the midst of an unprecedented global health emergency.11 On
March 11, 2020, the World Health Organization declared that the outbreak of
COVID-19 constituted a global pandemic.12 Citing “deep[] concern[] both by the
alarming levels of spread and severity, and by the alarming levels of inaction,” it
called for countries to take “urgent and aggressive action.”13
20. The number of people infected by COVID-19 is growing
exponentially.14 On January 1, 2020, the first confirmed COVID-19 case was
diagnosed in the United States.15 As of April 15, 2020, over half a million people
11 See World Health Organization, Director-General Opening Remarks (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-openingremarks-at-the-mediabriefing-on-covid-19---11-march-2020. 12 Id. 13 Id.; see also Coronavirus: COVID-19 Is Now Officially A Pandemic, WHO Says, NPR (March 11, 2020), https://www.npr.org/sections/goatsandsoda/2020/03/11/ 814474930/coronavirus-covid-19-is-now-officially-a-pandemic-who-says. 14 The death toll in Italy, which began experiencing this epidemic about a week earlier than the first diagnosed American case, saw a rise of 30% overnight in the 24 hours between March 5, 2020, and March 6, 2020 and a rise of 25% on March 15 alone—a day that killed 368 people in Italy. Crispian Balmer & Angelo Amante, Italy coronavirus deaths near 200 after biggest daily jump, Reuters (Mar. 6, 2020), https://www.reuters.com/article/us-health-coronavirus-italy/italycoronavirus-deaths-near-200-after-biggest-daily-jump-idUSKBN20T2ML. 15 Derrick Bryson Taylor, A Timeline of the Coronavirus, New York Times (Mar. 2020), https://www.nytimes.com/article/coronavirus-timeline.html (last visited March 24, 2020).
11

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.12 Page 12 of 71
have been diagnosed with COVID-19 in the United States, with 22,252 deaths confirmed.16 Nationally, CDC projections indicate that over 200 million individuals in the United States could be infected with COVID-19 over the course of the epidemic without effective public health intervention,17 with as many as 2.2 million deaths in the worst projections.18
21. COVID-19 is highly contagious. The virus is thought to spread through respiratory droplets or by touching a surface or object that has the virus on it.19 COVID-19 is thought to survive for three hours in the air in droplet form, up to twenty-four hours on cardboard, up to two days on plastic, and up to three days on steel.20
22. Infected people—who may be asymptomatic and not even know they
16 Coronavirus 2019, Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/cases-in-us.html. 17 James Glanz et al., Coronavirus Could Overwhelm U.S. without Urgent Action, Estimates Say, N.Y. Times (Mar. 20, 2020), https://www.nytimes.com/interactive /2020/03/20/us/coronavirus-model-us-outbreak.html. 18 Holly Yan, More than 3,000 people in the US have died from coronavirus, CNN (Mar. 31, 2020), https://www.cnn.com/2020/03/30/health/us-coronavirusupdatesmonday/index.html. 19 Coronavirus Factsheet, Centers for Disease Control (Mar. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/2019-ncov-factsheet.pdf. 20 Neeltje van Doremalen et al., Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1, NEW ENGLAND J. MEDICINE (March 17, 2020), https://www.nejm.org/doi/full/10.1056/NEJMc2004973.
12

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.13 Page 13 of 71
are infected—can spread the disease even through indirect contact with others.21
Given that many people are asymptomatic transmitters and very few people have been tested,22 the number of people diagnosed with COVID-19 reflects only a small portion of those infected.23
23. Everyone is at risk of contracting the novel coronavirus disease, but
certain populations are at higher risk for severe illness from COVID-19. People of
any age with lung disease or other conditions like asthma, chronic liver or kidney
disease, diabetes, epilepsy, hypertension, compromised immune systems, blood
disorders, inherited metabolic disorders, stroke, and pregnancy face increased risk
21 See, e.g., Marilynn Marchione/AP, Novel Coronavirus Can Live on Some Surfaces for Up to 3 Days, New Tests Show TIME, (Mar. 11, 2020), https://time.com/5801278/coronavirus-stays-on-surfaces-days-tests/; Cai J et al., Indirect virus transmission in cluster of COVID-19 cases, Wenzhou, China, 2020 Emerg Infect Dis. 6, 26 (2020), https://doi.org/10.3201/eid2606.200412. 22 Roni Caryn Rabin, They Were Infected with the Coronavirus. They Never Showed Signs, N.Y. Times (Feb. 26, 2020, updated Mar. 6, 2020), https://www.nytimes.com/2020/02/26/health/coronavirus-asymptomatic.html; Aria Bendix, A Person Can Carry And Transmit COVID-19 Without Showing Symptoms, Scientists Confirm, Bus. Insider (Feb. 24, 2020), https://www.sciencealert.com/researchers-confirmed-patients-can-transmit-thecoronavirus-without-showing-symptoms. 23 Melissa Healy, True Number of US Coronavirus Cases is Far Above Official Tally, Scientists Say, L.A. Times (Mar. 10, 2020), https://www.msn.com/enus/health/medical/true-number-of-us-coronavirus-cases-is-far-above-official-tallyscientists-say/ar-BB110qoA.
13

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.14 Page 14 of 71
of serious COVID-19 disease.24 Older individuals also face greater chances of serious illness or death from COVID-19.25 For people over the age of 50 or with
medical conditions that increase the risk of serious COVID-19 infection, symptoms such as fever, coughing, and shortness of breath can be especially severe.26
24. COVID-19 can severely damage lung tissue (sometimes leading to a
permanent loss of respiratory capacity), lead to acute respiratory distress syndrome,
affect cardiac functions (including the possibility of heart failure), and cause widespread damage to other organs.27 Emerging evidence also suggests that
COVID-19 can trigger an over-response in the immune system and further damage
the body’s tissues or organs, including permanent harm to the kidneys or neurologic injury.28
25. The experiences of those infected with COVID-19 are “a lot more
24 Ex. 4, Expert Decl. of Dr. Jonathan Golob ¶ 4, Dawson v. Asher, Case No. 2:20cv-00409-JLR-MAT, ECF Doc. 5 (D. Or. Mar. 16, 2020). 25 Golob Decl. ¶ 3; Xianxian Zhao et al., Incidence, clinical characteristics and prognostic factor of patients with COVID-19: a systematic review and metaanalysis (Mar. 20, 2020), https://cutt.ly/etRAkmt. 26 Golob Decl. ¶ 5; see also Ex. 5, Decl. of Dr. Carlos Franco Paredes, Fraihat v. U.S. Immigration and Customs Enforcement, 5:19-cv-01546-JGB-SHK, ECF Doc. 81-12 (E.D. Cal., Mar. 24, 2020) (outlining the heightened risk of severe harm or death for those populations deemed medically vulnerable to COVID-19, including higher fatality rates, severe damage to organs and other capacities, and the need for advanced support). 27 Golob Decl. ¶ 7. 28 Id.
14

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.15 Page 15 of 71
frightening” than the flu.29 The sensation of acute respiratory distress syndrome has been compared to “essentially drowning in [one’s] own blood.”30 Even relatively young people with minimal health history can be “wiped out” by the virus, “like they’ve been hit by a truck,” and people who are infected by the virus can “all of a sudden” go into complete respiratory failure.31
26. These complications can manifest at an alarming pace, and the required levels of support can quickly exceed local health care resources.32 Patients with serious cases of COVID-19 will need advanced medical support requiring highly specialized equipment that is in limited supply, such as ventilator or oxygenation assistance, as well as an entire team of care providers that can include 1:1 nurse to patient ratios, respiratory therapists, and intensive care physicians.33
27. The current estimated incubation period is between 2 and 14 days.34 Approximately 20% of people infected experience life-threatening complications,
29 Lizzie Presser, A Medical Worker Describes Terrifying Lung Failure From COVID-19 — Even in His Young Patients, Propublica (Mar. 21, 2020), https://www.propublica.org/article/a-medical-worker-describes--terrifying-lungfailure-from-covid19-even-in-his-young-patients. 30 Id. 31 Id. 32 Golob Decl. ¶ 6; Stern Decl. ¶ 11. 33 Golob Decl. ¶¶ 5-6. 34 Coronavirus Disease COVID-19 Symptoms, Centers for Disease Control (Feb. 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/about/symptoms.html.
15

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.16 Page 16 of 71
and, of those infected, between 1% and 3.4% die.35 According to recent estimates,
the fatality of people infected with the coronavirus is about ten times higher than a
severe seasonal influenza, even in advanced countries with highly effective health care systems.36 Patients who do not die from serious cases of COVID-19 may face
prolonged recovery periods, including extensive rehabilitation from neurologic damage and loss of respiratory capacity.37
28. There is no vaccine, nor is there any known medication to prevent or cure infection from the virus.38 Development of a vaccine is likely at least 12 months away.39
29. The only known effective measure to reduce the risk of severe illness
or death to individuals is to prevent them from being infected with the coronavirus in the first place.40 Accordingly, officials and experts urge “social distancing”—
35 Why Covid-19 is worse than the flu, in one chart, Vox (Mar. 18, 2020), https://www.vox.com/science-and-health/2020/3/18/21184992/coronavirus-covid19-flu-comparison-chart. 36 Betsy McKay, Coronavirus vs. Flu Which Virus is Deadlier, WALL ST. J. (Mar. 10, 2020), https://www.wsj.com/articles/coronavirus-vs-flu-which-virus-isdeadlier-11583856879. 37 Golob Decl. ¶ 4. 38 Golob Decl. ¶ 8. 39 Saralyn Cruickshank, Experts Discuss Covid-19 and Ways to Prevent Spread of Disease, John Hopkins Mag. (Mar. 17, 2020), https://hub.jhu.edu/2020/03/17 /coronavirus-virology-vaccinesocial-distancing-update. 40 Golob Decl. ¶ 8.
16

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.17 Page 17 of 71
isolating oneself from other people at a minimum distance of six feet as much as possible.41 Dozens of the world’s experts on fighting epidemics agree that extreme social distancing approximates the type of “total freeze”42 to transmission that is
vital to halting and reversing the spread of COVID-19. Epidemiologists say that
“[i]f it were possible to wave a magic wand and make all Americans freeze in place
for 14 days while sitting six feet apart . . . the whole epidemic would sputter to a halt.”43
30. For this reason, governors and mayors across the country are ordering entire cities and states to “shelter in place” and “stay at home.”44 Other federally
recommended precautions include frequent hand-washing, alcohol-based hand
sanitizers, and frequent cleaning and disinfecting of any surfaces touched by any
41 Michigan Executive Order 2020-21, (Mar. 24, 2020) https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-522626--,00.html; See Saralyn Cruickshank, Experts Discuss Covid-19 and Ways to Prevent Spread of Disease, John Hopkins Mag. (Mar. 17, 2020), https://hub.jhu.edu/2020/03/17 /coronavirus-virology-vaccine-social-distancing-update. 42 Donald G. McNeil Jr., The Virus Can Be Stopped, but Only With Harsh Steps, Experts Say, N.Y. Times (Mar. 22, 2020), https://www.nytimes.com/2020/03/22/health/coronavirus-restrictions-us.html. 43 Id. 44 The governors of 42 states, as well as local officials of numerous counties in most remaining states, have all ordered residents to “shelter in place” or stay at home. See Which States and Cities Have Told Residents to Stay at Home, N.Y. Times (April 7, 2020), https://www.nytimes.com/interactive/2020/us/coronavirusstay-at-home-order.html.
17

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.18 Page 18 of 71
person.45
INCARCERATED PEOPLE AND CORRECTIONAL STAFF ARE AT HEIGHTENED RISK DURING THE COVID-19 PANDEMIC
31. Substantial epidemiological research “shows that mass incarceration
raises contagion rates for infectious disease—both for people in jails, and for the community at large.”46 During pandemics, jail facilities become “ticking time
bombs” as “[m]any people crowded together, often suffering from diseases that
weaken their immune systems, form a potential breeding ground and reservoir for diseases.”47
32. Indeed, Dr. Meyer has explained that “the risk posed by COVID-19 in
jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected.”48 This is
45 Steps to Prevent Illness, Centers for Disease Control, https://www.cdc.gov /coronavirus/2019-ncov/about/prevention.html?CDC_AA_refVal=https%3A %2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fabout%2Fpreventiontreatment.html; see also Saralyn Cruickshank, Experts Discuss Covid-19 and Ways to Prevent Spread of Disease, John Hopkins Mag. (Mar. 17, 2020), https://hub.jhu.edu/2020/03/17/coronavirus-virology-vaccine-social-distancingupdate. 46 Sandhya Kajeepeta & Seth J. Prins, Why Coronavirus in Jails Should Concern All of Us, The Appeal (Mar. 24, 2020), https://theappeal.org/coronavirus-jailspublic-health/. 47 See St. Louis Univ., Prisons Unprepared For Flu Pandemic, ScienceDaily (2006), https://www.sciencedaily.com/releases/2006/09/060915012301.htm. 48 Meyer Decl. ¶ 7.
18

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.19 Page 19 of 71
due to a number of factors, including: a. The close proximity of individuals in those facilities; b. Their reduced ability to protect themselves through social distancing; c. The lack of necessary medical and hygiene supplies ranging from hot water, soap or hand sanitizer, to protective equipment; d. Ventilation systems that encourage the spread of airborne diseases; e. Difficulties quarantining individuals who become ill; f. The enhanced susceptibility of the population in jails and prisons due to chronic health conditions; g. The fact that incarcerated people, rather than professional cleaners, are often responsible for cleaning the facilities and are not given appropriate supplies; h. The fact that jails and prisons normally have to rely heavily on outside hospitals that will become unavailable during a pandemic, as well as the loss of both medical and correctional staff to illness.49
49 See Meyer Decl. ¶¶ 7-19. “The pathway for transmission of pandemic influenza between jails and the community is a two-way street. Jails process millions of bookings per year. Infected individuals coming from the community may be housed with healthy inmates and will come into contact with correctional officers, which can spread infection throughout a facility.” Pandemic Influenza & Jail Facilities & Populations, Am. J. of Pub. Health, October 2009; see also Dr. Anne
19

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.20 Page 20 of 71
33. Additional reasons for the increased risk of transmission and infection include the constant cycling of people in and out of the jail (including staff)50 and insufficient access to medical care within the jail itself.
34. And jail screening procedures are ineffective. COVID-19 poses a particular threat to public health because a person can be asymptomatic yet spread the disease to others. Most people do not show symptoms for two to fourteen days while being contagious. Others never exhibit any symptoms at all. Thus, while screening for fevers and other symptoms associated with COVID-19 may stop some infected people from entering, it cannot catch many of those actively spreading the virus. The drastic social distancing measures that have been imposed across the country are designed exactly to combat this problem—staying at home, we are able to limit our contact with other persons, even the asymptomatic. But every day, numerous jail employees, working on multiple different shifts, travel into and out of the jail. Any one of those employees can be asymptomatically carrying and transmitting COVID-19, and the jail has no means of stopping this disease vector.
35. In Michigan, more than 40 state department of corrections staff have
Spaulding, Coronavirus and the Correctional Facility: for Correctional Staff Leadership (Mar. 9, 2020), https://www.ncchc.org/filebin/news/COVID_for_CF _Administrators_3.9.2020.pdf. 50 See Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020), https://www.prisonpolicy.org/blog/2020/03/06/pandemic.
20

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.21 Page 21 of 71
contracted COVID-19, and an additional 150 staff have self-quarantined due to possible exposure.51 On April 2, 2020, Andy Potter, executive director of the Michigan Corrections Organization, and Brian Dawe, executive director of the American Correctional Officer Intelligence Network, sent a letter to the National Governors Association, describing the dire impact of COVID-19 on correctional officers and staff52: “[O]fficers in Michigan, New York and New Jersey have died from COVID-19. They will not be the last. Hundreds more across the nation have tested positive and thousands face quarantine. Inmates in our custody are dying as a result of this virus.” The letter also referenced a survey of over 750 correctional officers and staff about the ways in which the COVID-19 virus is impacting prisons, jails, and juvenile detention facilities, in which almost 60% of respondents said that COVID-19-related hazards inside their facility remain unaddressed.53 Correctional officials around the country agree that particular care must be taken to stop the spread of COVID-19 within the nation’s jails. Leann Bertsch, the Director of the
51 Jameson Cook, Michigan prison guards concerned about dangers of COVID-19, Macomb Daily (Apr. 5, 2020), https://www.macombdaily.com/news/coronavirus /michigan-prison-guards-concerned-about-dangers-of-covid-19/article_1e6c27f67604-11ea-a444-43bddcfab230.html. 52 Letter from One Voice and ACOIN to National Governors Association (Apr. 2, 2020), https://drive.google.com/file/d/13euHXAPbSyVo1vkG9k1x7ymJCl _UJhTc/view. 53 Id.
21

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.22 Page 22 of 71
North Dakota Department of Corrections and Rehabilitation, concluded that “ignoring the health of those living and working inside the walls of our nation’s correctional facilities poses a grave threat to us all” and that “putting public health first is the best, and only, way to effectively achieve [a department of correction’s] public safety mission during the COVID-19 pandemic.” 54
36. The guidance from the Centers for Disease Control and Prevention (CDC) for correctional and detention facilities, including local jails, was published on March 30, 2020.55 The guidance acknowledges that incarcerated people are forced to exist “within congregate environments” that “heighten[] the potential for COVID-19 to spread once introduced,” especially given the impossibility of social distancing within correctional facilities. It recognizes the “many opportunities for COVID-19 to be introduced into a correctional or detention facility” including “daily staff ingress and egress” as well as “high turnover” of “admit[ted] new entrants.”56 In light of these concerns, the guidance recommends that the correctional facility:
54 Brie Williams and Leanne Bertsch, A public health doctor and head of corrections agree: we must immediately release people from jails and prisons, The Appeal (Mar. 27, 2020), https://theappeal.org/a-public-health-doctor-and-head-ofcorrections-agree-we-mustimmediately-release-people-from-jails-and-prisons/. 55 Ex. 6, Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities, Centers for Disease Control and Prevention (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidancecorrectional-detention.html. 56 Id.
22

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.23 Page 23 of 71
a. Post signage throughout the facility communicating COVID-19 symptoms and hand hygiene instructions, ensure such signage is understandable for non-English speaking people as well as those with low literacy, and provide clear information about the presence of COVID-19 cases within a facility and the need to increase social distancing and maintain hygiene precautions;
b. Ensure sufficient stocks of hygiene and cleaning supplies, including tissues; liquid soap where possible; hand drying supplies; alcohol-based hand sanitizer; cleaning supplies effective against the coronavirus; and recommended personal protective equipment like face masks, disposable medical gloves, and N95 respirators;
c. Provide incarcerated people no-cost access to soap (providing liquid soap where possible), running water, hand drying machines or disposable paper towels for hand washing, and tissues (providing notouch trash receptacles for disposal);
d. Consider relaxing restrictions on allowing alcohol-based hand sanitizer where security concerns allow;
e. Provide a no-cost supply of soap sufficient to allow frequent hand washing, providing liquid soap where possible;
f. Suspend co-pays for incarcerated people seeking medical evaluation for respiratory symptoms;
g. Even if COVID-19 cases have not been identified locally or inside, implement “intensified cleaning and disinfecting procedures” that clean and disinfect high-touch surfaces and objects “[s]everal times per day,” and ensure adequate supplies to support intensified cleaning and disinfection practices”;
h. Perform pre-intake screening and temperature checks for all new entrants
i. If an individual has symptoms of COVID-19 (fever, cough, shortness of breath), require the individual to wear a face mask and place her under medical isolation;
23

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.24 Page 24 of 71
j. Implement social distancing strategies to increase the physical space between incarcerated people, ideally a distance of six feet “regardless of the presence of symptoms”; and
k. Implement daily temperature checks in housing units where COVID19 cases have been identified.
37. According to correctional health expert Dr. Marc Stern, this guidance sets out only minimum standards and fails to address the need for downsizing when necessary to ensure that social distancing can be maintained in the jail environment.57
38. The global path of the virus confirms that jails and prisons are epicenters for transmission. Approximately one month into the pandemic in the province of Hubei, China, over half of reported COVID-19 cases were from jails.58 In South Korea, which has had tremendous success in slowing and stopping the spread of the virus, “the single largest COVID-19 outbreak and mortality cluster was from the Daenam Prison Hospital, where 101 inmates were infected and seven died.”59
57 Stern Decl. ¶¶ 9–10. 58 Zi Yang, Cracks in the System: COVID-19 in Chinese Prisons, Diplomat (Mar. 9, 2020), https://thediplomat.com/2020/03/cracks-in-the-system-covid-19-inchinese-prisons/. 59 Nancy Gertner & John Reinstein, Compassionate Release Now for Prisoners Vulnerable to the Coronavirus, Boston Globe (Mar. 23, 2020), https://www.bostonglobe.com/2020/03/23/opinion/compassionate-release-nowprisoners-vulnerable-coronavirus/.
24

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.25 Page 25 of 71
39. The coronavirus has already started to spread inside other prisons, jails, and detention centers in the United States. Experts predict that a mass contagion is only a matter of time and that “[a]ll prisons and jails should anticipate that the coronavirus will enter their facility.”60
40. Once the virus enters a jail or prison, the infection rate has been known to be much higher than in the broader community. In New York City, for example, the COVID-19 infection rate in the city’s jails is eight times higher than the rest of the city, which already sits at one of the highest rates in the world.61 The first case of COVID-19 on Rikers Island, New York City’s largest jail complex, was confirmed on March 18, 2020.62 In New York City, less than a month from the detection of the first case at Riker’s Island, 334 incarcerated people and 627 jail staff
60 Evelyn Cheng & Huileng Tan, China Says More than 500 Cases of the New Coronavirus Stemmed from Prisons, CNBC, (Feb. 20, 2020), https://www.cnbc.com/2020/02/21/coronavirus-china-says-twoprisons-reportednearly-250-cases.html (quoting Tyler Winkelman, co-director of the Health, Homelessness, and Criminal Justice Lab at the Hennepin Healthcare Research Institute in Minneapolis). 61 COVID-19 Infection Tracking in NYC Jails, The Legal Aid Society NYC (last visited Mar. 28, 2020), https://www.legalaidnyc.org/covid-19-infection-trackingin-nyc-jails/. 62 21 Inmates, 17 Employees Test Positive for COVID-19 on Rikers Island: Officials, NBC New York (Mar. 22, 2020), https://www.nbcnewyork.com/news/coronavirus/21-inmates17-employees-testpositive-for-covid-19-on-rikers-island-officials/2338242/.
25

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.26 Page 26 of 71
have tested positive63; two jail officers have died; and more than 800 incarcerated
people were held in isolation or quarantined.64 The dramatic outbreak of COVID-
19 in the Cook County Jail is also illustrative—126 staff and 298 detainees have
tested positive for COVID-19 and nurses at Cook County’s Stroger Hospital have
warned that the virus is a “growing beast” that threatens not only staff and people
behind bars but all of Cook County.65 An entire unit at Stroger Hospital has been
converted into a space for treating COVID-19 cases from the Cook County jail, and
the unit is rapidly reaching maximum capacity.66
41. An equally gruesome pattern is already devastating Michigan’s carceral
system.67 In one Michigan prison alone, 10% of all incarcerated people have tested
63 Jennifer Bisram, Exclusive: NYC DOC commissioner addresses COVID-19 concerns on Rikers Island, PIX 11 (Apr. 14, 2020), https://www.pix11.com/news/coronavirus/exclusive-nyc-doc-commissioneraddresses-covid-19-concerns-on-rikers-island 64 Jay Ransom and Alan Feuer, ‘We’re Left for Dead’: Fears of Virus Catastrophe at Rikers Jail, N.Y. Times (Last updated: Mar. 31, 2020), https://www.nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html. 65 Shannon Heffernan, Nurses Warn COVID-19 Cases At Cook County Jail Aren’t Just Staying Behind Bars, WBEZ, Chicago’s NPR (Apr. 11, 2020), https://www.wbez.org/stories/nurses-warn-covid-19-cases-at-cook-county-jailarent-just-staying-behind-bars/44cc1e46-693b-44cc-8a5a-347737966185. 66 Id. 67 See Angie Jackson & Kristi Tanner, Infection Rate at Michigan Prison Exceeds New York, Chicago Hot Spots, Detroit Free Press (Apr. 15, 2020),
https://www.freep.com/story/news/local/michigan/2020/04/16/infection-rate-michigan-prison-exceeds-new-york-
chicago-jail-hotspots/2987935001/.
26

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.27 Page 27 of 71
positive for COVID-19, and 9 prisoners have already died statewide.68 As of April
15, there were 454 confirmed cases among people detained in Michigan’s prisons,
an increase of almost 200 cases from a week prior.69 And 175 prison staff also had
confirmed cases on April 15. There have also been numerous outbreaks in
Michigan’s jails, including in all three counties in the Detroit metropolitan area.70
42. For this reason, medical and public health experts have urged
emergency action to fight the spread of COVID-19 in jails and other carceral
facilities, including decarceration, improved access to medical care, and compliance
with CDC guidelines.71 And the World Health Organization has declared that no
68 Id. 69 See Mich. Dep’t of Corrections, Total Confirmed Prisoner and Staff Cases to Date (last checked Apr. 15, 2020), https://medium.com/@MichiganDOC/mdoctakes-steps-to-prevent-spread-of-coronavirus-covid-19-250f43144337; see also Egan & Jackson, Coronavirus Spreads to 4 More Michigan Prisons As Concerns Mount, Detroit Free Press (April 10, 2020), https://www.freep.com/story/news/ local/michigan/2020/04/10/coronavirus-covid-19-spreads-michiganprisons/5133558002/. 70 See Ross Jones, Michigan Prisons and Jails See COVID-19 Cases Rise, WXYZ Channel 7 News (Apr. 3, 2007), https://www.wxyz.com/news/localnews/investigations/michigan-prisons-and-jails-see-covid-19-cases-rise. 71 See, e.g., Ex. 7, Brad Lander, Doctors in NYC Hospitals, Jails, and Shelters Call on the City to Take More Aggressive Action to Combat the Spread of Coronavirus, Medium (Mar. 12, 2020), https://medium.com/@bradlander/doctors-in-nychospitals-jails-and-shelters-call-on-the-city-totake-more-aggressive-action-tofb75f0b131c2; Ex. 8, Letter from Johns Hopkins faculty to Governor Hogan, Mar. 25, 2020, https://bioethics.jhu.edu/wp-content/uploads/2019/10/JohnsHopkinsfaculty-letter-on-COVID-19-jails-and-prisons.pdf; Stern Decl. ¶ 11; Ex. 9, Decl. of Dr. Ranit Mishori ¶ 46, Coreas v. Bounds, et al., No. 8:20-cv-00780, ECF Doc. 2-3
27

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.28 Page 28 of 71
government should end a “shelter in place” or lockdown procedure until “hot spot risks are minimized in vulnerable places,” which includes jails and prisons.72 Medical experts explain that the need for action is urgent given that “[t]he window of opportunity is rapidly narrowing for mitigation of COVID-19”—outbreaks are measured “in a matter of days, not weeks,” with this type of novel virus.73
43. Numerous public health experts, including Plaintiffs’ expert Dr. Marc Stern,74 Dr. Gregg Gonsalves,75 Ross MacDonald,76 Dr. Oluwadamilola T. Oladeru
(D. Md. Mar. 24, 2020); Ex. 10, Decl. of Robert B. Greifinger ¶ 13, Dawson v. Asher, Case No. 2:20-cv-00409-JLR-MAT, ECF Doc. 4 (D. Or., Mar. 16, 2020). 72 Bill Chappell, WHO Sets 6 Conditions For Ending a Lockdown, NPR (Apr. 15, 2020), https://www.npr.org/sections/goatsandsoda/2020/04/15/834021103/whosets-6-conditions-for-ending-a-coronavirus-lockdown?utm_source=facebook.com &utm_campaign=npr&utm_medium=social&utm_term=nprnews&fbclid=IwAR34 AVrfEfUkggt7aI2W_apYjtIK8XKObFnQkFNfAtsn9iWFLPj7VMnAfWU. 73 Mishori Decl. ¶ 46. 74 Stern Decl. ¶ 11. 75 Kelan Lyons, Elderly Prison Population Vulnerable to Potential Coronavirus Outbreak, Connecticut Mirror (March 11, 2020), https://cutt.ly/BtRSxCF. 76 Craig McCarthy and Natalie Musumeci, Top Rikers Doctor: Coronavirus ‘Storm is Coming,’ N.Y. Post (Mar. 19, 2020), https://cutt.ly/ptRSnVo.
28

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.29 Page 29 of 71
and Adam Beckman,77 Dr. Anne Spaulding,78 Homer Venters,79 and Josiah Rich80 have all strongly cautioned that people booked into and held in jails are likely to face serious, even grave, harm due to the outbreak of COVID-19.
44. According to Dr. Stern, “taking immediate and concerted efforts to implement preventive steps, as well as reducing the population to the lowest number possible prioritizing those who are elderly or have underlying medical conditions defined by the CDC, will increase public safety via reducing public health risk.”81
45. Given this urgency, jails and prisons nationwide have released people with the aim of preventing community outbreaks of severe illness and death from COVID-19. States and counties that have released people from incarceration in response to the COVID-19 crisis include, but are not limited to: Los Angeles County,
77 Oluwadamilola T. Oladeru et al., What COVID-19 Means for America’s Incarcerated Population – and How to Ensure It’s Not Left Behind (Mar. 10, 2020), https://cutt.ly/QtRSYNA. 78 Anne C. Spaulding, MD MPDH, Coronavirus COVID-19 and the Correctional Jail, Emory Center for the Health of Incarcerated Persons (Mar. 9, 2020). 79 Madison Pauly, To Arrest the Spread of Coronavirus, Arrest Fewer People, Mother Jones (March 12, 2020), https://cutt.ly/jtRSPnk. 80 Amanda Holpuch, Calls Mount to Free Low-risk US Inmates to Curb Coronavirus Impact on Prisons, The Guardian (Mar. 13, 2020), https://cutt.ly/itRSDNH. 81 Stern Decl. ¶ 13.
29

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.30 Page 30 of 71
California (1,700 people);82 New York (more than 1,100 people);83 New Jersey
(1,000 people);84 and Cuyahoga County, Ohio (approx. 600 people),85 among others.
46. Internationally, governments have also responded to the threat posed
by COVID-19 by releasing people from incarceration. In Iran, more than 80,000
people were temporarily released from prison to protect them and to protect the
community from propagation of an outbreak.86 In Ethiopia, more than 4,000 people
were pardoned and released from incarceration to help prevent the spread of
82 LA County Releases 1,700 Inmates to Reduce Jail Population Due to Coronavirus, NBC Los Angeles (Mar. 24, 2020), https://www.nbclosangeles.com/news/local/la-county-releases-1700inmates-toreduce-jail-population-due-to-coronavirus/2334809/. 83 Brendan Lyons, NY to release 1,100 parole violators as coronavirus spreads, Times Union (Mar. 27, 2020), https://www.timesunion.com/news/article/Deathssurge-again-in-New-Yorkfrom-coronavirus-15160973.php. 84 1,000 Inmates Will Be Released From N.J. Jails to Curb Coronavirus Risk, N.Y. Times (Mar. 23, 2020), https://www.nytimes.com/2020/03/23/nyregion /coronavirus-nj-inmates-release.html. 85 Scott Noll, Cuyahoga County Jail releases hundreds of low-level offenders to prepare for coronavirus pandemic, News 5 Cleveland (Mar. 20, 2020), https://www.news5cleveland.com/news/local-news/oh-cuyahoga/cuyahogacounty-jail-releaseshundreds-of-low-level-offenders-to-prepare-for-coronaviruspandemic. 86 Parisa Hafezi, Iran Temporarily Frees 85,000 From Jail Including Political Prisoners, Reuters (Mar. 17, 2020), https://www.reuters.com/article/us-healthcoronavirus-iran-prisoners/iran-temporarily-frees-85000-from-jail-includingpolitical-prisoners-amid-coronavirus-idUSKBN21410M.
30

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.31 Page 31 of 71
COVID-19.87
47. States and other local jurisdictions have also made changes to existing
carceral policies in response to the COVID-19 pandemic, including eliminating
medical co-pays for incarcerated people and waiving fees for phone calls and video
communication.88 Others have required facilities to distribute and make available
sanitation supplies and hand sanitizer to everyone who is incarcerated, arranged for
the immediate evaluation and treatment of anyone with symptoms, and enacted
screening procedures for everyone who enters the jail or prison.89
48. Over the past two weeks, multiple courts have also acknowledged the
severe and urgent threats posed by COVID-19 and have accordingly ordered the
release of detained and incarcerated persons.90
87 Bukola Adebayo, Ethiopia pardons more than 4,000 prisoners to help prevent coronavirus spread, CNN (Mar. 26, 2020), https://www.cnn.com/2020/03/26/africa/ethiopia-pardons-4000-prisoners-overcoronavirus/index.html. 88 Responses to the COVID-19 Pandemic, Prison Policy (Mar. 27, 2020), https://www.prisonpolicy.org/virus/virusresponse.html. 89 See, e.g., Preparedness and Response Plan 5-8, Indiana Dep’t of Correction (2020), https://www.in.gov/idoc/files/IDOC%20Pandemic%20Response %20Plan%203-3-2020.pdf#response%20plan. 90 See, e.g., Castillo et al. v. Barr, 5:20-cv-00605, ECF Doc. 32 (C.D. Cal. Mar. 27, 2020) (ordering petitioners be released from immigration detention in light of COVID-19 and noting “the risk of infection in immigration detention facilities – and jails – is particularly high”); USA v. Garlock., No. 18 Cr 00418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (ordering, sua sponte, extension of convicted defendant’s surrender date and noting “[b]y now it almost goes without
31

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.32 Page 32 of 71
THE COVID-19 PANDEMIC HAS REACHED OAKLAND COUNTY AND SWIFT ACTION IS NEEDED TO PREVENT A MASS OUTBREAK IN THE JAIL
49. With over 27,000 confirmed cases of COVID-19,91 the state of
Michigan now ranks third in the country for COVID-19 related deaths trailing
behind New York and New Jersey.92 Oakland County has the second highest
number of COVID-19 cases in the state. As of April 16, 2020, over 5,000 people
have been diagnosed with COVID-19 in Oakland County, with 392 deaths
saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided”); Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir. Mar. 24, 2020) (ordering, sua sponte, that petitioner be immediately released from immigration detention “[i]n light of the rapidly escalating public health crisis” related to COVID-19 that”public health authorities predict will especially impact immigration detention centers”); U.S. v. Stephens, 15 Cr. 95 (AJN), 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020) (granting motion for reconsideration of defendant’s bail conditions and releasing him from jail to home confinement, explaining that “the unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic has become apparent” and that “inmates may be at a heightened risk of contracting COVID-19 should an outbreak develop”); In re. Extradition of Alejandro Toledo Manrique, 2020 WL 1307109, (N.D. Cal. March 19, 2020) (ordering release on bond despite government assertions that facility has preparedness plan in place and no cases have been confirmed). 91 Coronavirus Daily Counts, Michigan.Gov (Apr. 15, 2020), https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173_99207--,00.html. 92 Bobby Allyn, After Surge In Cases, Michigan Now 3rd In Country For Coronavirus Deaths, NPR (Mar. 31, 2020), https://www.npr.org/sections/coronavirus-liveupdates/2020/03/31/824738996/after-surge-in-cases-michigan-now-3rd-incountry-for-coronavirus-deaths.
32

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.33 Page 33 of 71
confirmed.93 50. The Governor of Michigan declared a state of emergency on March 10,
2020, after two positive cases of COVID-19 were confirmed in Michigan—one in Oakland County and the other in Wayne County.94 On March 13, 2020, Oakland County Executive David Coulter declared a local state of emergency as a response to the threat posed by COVID-19. In the emergency order, county health officer Leigh-Anne Stafford cautioned that the “best way to prevent infection is to avoid being exposed to the virus.”95
51. On March 15, 2020, the Michigan Supreme Court issued Administrative Order 2020-1 instructing all trial courts in Michigan to take all “reasonable measures to avoid exposing participants in court proceedings, court employees, and the general public to the COVID-19 virus.” The order further instructs courts to reduce jail populations by “tak[ing] into careful consideration
93 Coronavirus, Michigan.Gov, https://www.michigan.gov/coronavirus/0,9753,7406-98163_98173---,00.html. 94Michigan Executive Order No. 2020-04 Declaration of State of Emergency, (Mar. 10, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705521576--,00.html. 95 County Executive Coulter Continues Public Health Preparedness and Activates Emergency Operations Center for Coronavirus Efforts, Oakland County News Release (Mar. 11, 2020), https://www.oakgov.com/health/news/Documents/Press %20Releases/031020%20DRAFT%20COVID19%20partial%20EOC%20HC%20+%20OCHD%20team.pdf.
33

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.34 Page 34 of 71
public health factors arising out of the present state of emergency” in making bond determinations and determining conditions or probation.
52. On March 16, 2020, Oakland County issued another order to reduce the occupancy load at county establishments, entertainment venues, and fitness centers by 50%, and county health officer Stafford reemphasized that “social distancing is vital” to keep residents healthy and “stop the spread of illness.”96
53. On March 23, 2020, Governor Whitmer issued a statewide stay-athome order and ordered all non-essential businesses to close to bolster efforts to fight the ongoing COVID-19 outbreak.97
54. On March 26, 2020, Michigan Supreme Court Chief Justice Bridget M. McCormack and Sheriff Matt Saxton, Executive Director of the Michigan Sheriffs’ Association, issued a joint statement urging Judges and Sheriffs “to reduce and suspend jail sentences for people who do not pose a public safety risk” and “release far more people on their own recognizance as they await their day in court,” emphasizing that “[f]ollowing this advice WILL SAVE LIVES” during this global
96 Emergency Order For Control Of Pandemic, Oakland County News Release (Mar. 14, 2020), https://www.oakgov.com/Documents/News/Emergency %20Order%20for%20Coronavirus%20Pandemic%20food%20service%20establish ments%20%203.14.20.pdf 97 Michigan Executive Order No. 2020-21 Temporary requirement to suspend activities that are not necessary to sustain or protect life (Mar. 23, 2020), https://content.govdelivery.com/attachments/MIEOG/2020/03/23/file_attachments/ 1408152/EO%202020-21%20Stay%20Home,%20Stay%20Safe.pdf
34

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.35 Page 35 of 71
pandemic.98 55. On March 29, 2020, Governor Whitmer issued Executive Order 2020-
2999, underscoring the life-or-death threat that the COVID-19 pandemic poses to people incarcerated in county jails throughout Michigan, as well as to jail staff and the community at large. The order detailed necessary protocols that the Michigan Department of Corrections, county jails, local lockups, and juvenile detention centers must implement to reduce exposure risks to the virus. These protocols include:
a. “Screening all persons arriving at or departing from a facility, including staff, incarcerated persons, vendors, and any other person entering the facility, in a manner consistent with guidelines issued by the Centers for Disease Control and Prevention (‘CDC’). Such screening includes a temperature reading and obtaining information about travel and any contact with persons under investigation for
98 Michigan Court News Release (Mar. 26, 2020), https://courts.michigan.gov /News-Events/press_releases/Documents/CJ%20and%20MSA%20Joint %20Statement%20draft%202%20(003).pdf. 99 Ex. 11, Michigan Executive Order No. 2020-29 Temporary COVID-19 protocols for entry into Michigan Department of Corrections facilities and transfers to and from Department custody; temporary recommended COVID-19 protocols and enhanced early-release authorization for county jails, local lockups, and juvenile detention centers Declaration of State of Emergency (Mar. 29, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html.
35

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.36 Page 36 of 71
COVID-19 infection.”; b. “Restricting all visits, except for attorney-related visits, and
conducting those visits without physical contact to the extent feasible.”; c. “Limiting off-site appointments except for urgent or emergency medical treatment”; d. “Developing and implementing protocols for incarcerated persons who display symptoms of COVID-19, including methods for evaluation and processes for testing, notification of the Department of Health and Human Services (“DHHS”), and isolation during testing, while awaiting test results, and in the event of positive test results. These protocols should be developed in consultation with local public health departments.”; e. “Notifying DHHS of any suspected case that meets the criteria for COVID-19 through communication with the applicable local public health department.”; f. “Providing, to the fullest extent possible, appropriate personal protective equipment to all staff as recommended by the CDC.”; g. “Conducting stringent cleaning of all areas and surfaces, including frequently touched surfaces (such as doorknobs, handles, light
36

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.37 Page 37 of 71
switches, keyboards, etc.), on a regular and ongoing basis.”; h. “Ensuring access to personal hygiene products for incarcerated
persons and correctional staff, including soap and water sufficient for regular handwashing.”; i. “Ensuring that protective laundering protocols are in place.”; j. “Posting signage and continually educating on the importance of social distancing, handwashing, and personal hygiene.”; k. “Practicing social distancing in all programs and classrooms— meaning a distance of at least six feet between people in any meeting, classroom, or other group.”; and l. “Minimizing crowding, including interactions of groups of 10 or more people, which may include scheduling more times for meal and recreation to reduce person-to-person contact.” 56. Many of the measures listed in the Governor’s Executive Order have not been implemented at the Jail.100 57. Indeed, the Jail has failed to cooperate with courts and attorneys on common-sense measures to reduce incarceration rates. In particular, the Jail has refused to facilitate providing attorneys to newly arrested arrestees at their
100 https://www.oakgov.com/sheriff/Corrections-Courts/jail/Pages/default.aspx.
37

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.38 Page 38 of 71
arraignment. The standards promulgated by the Michigan Indigent Defense Commission (MIDC), as well as the Sixth Amendment, require that defendants be represented at their arraignments. Since the crisis, Defendants have refused to cooperate with the MIDC and with Oakland County courts to facilitate appearances of defense attorneys at arraignments. As a result, new arrestees face a heightened risk of being unjustly detained in the Jail under the conditions described herein because of being denied access to counsel at their arraignment. No other Jail in Michigan has exhibited similar unwillingness to provide counsel at arraignments during the crisis.
58. Executive Order 2020-29 also suspends the capacity and procedural requirements of Michigan’s County Jail Overcrowding Act (“JOA”), thus empowering sheriffs and courts to swiftly but safely take bold and urgent steps to dramatically reduce jail populations to alleviate these risks. On March 31, 2020, the ACLU of Michigan and the State Appellate Defender Office sent letters to every chief judge and sheriff in the state, including Defendant Bouchard, outlining the specific measures that sheriffs and courts can now take to further reduce jail populations under the JOA, as modified by Executive Order 2020-29, while maintaining public safety.101 The letter called, inter alia, for 1) the release of pre-
101 Ex 12, Letter from ACLU to Chief Judges, Mar. 31, 2020, https://www.aclumich.org/sites/default/files/field_documents/aclu_letter_to_judges
38

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.39 Page 39 of 71
trial detainees on a personal bond; 2) the release of prisoners who have served 85% of their sentences; 3) the reduction or suspension of sentences for other prisoners; and 4) a moratorium on detaining new people in the jails in order to reduce the risk of fatal COVID-19 outbreaks in the jails. Neither Defendant Bouchard nor the Oakland County Circuit Court have taken full advantage of the powers now available to them to reduce the jail population under the JOA.
59. On April 1, 2020, the Michigan Joint Task Force on Jail and Pretrial Incarceration issued a press release highlighting the gravity of a potential outbreak in county jails: “As high traffic institutions characterized by relatively confined spaces, the threat of COVID-19 is particularly acute in our county jails. Individuals in jail, including law enforcement and correctional officers, are at an elevated risk of being exposed to the virus and spreading it to others through inadequate social distancing.” The Task Force urged “justice system decision makers to continue taking all necessary actions to keep our communities safe through arrest alternatives, de-incarceration as appropriate, and social distancing.”102
_re_gov_executive_order.pdf; Ex 13, Letter from ACLU to Sheriffs, Mar. 31, 2020 https://www.aclumich.org/sites/default/files/field_documents/aclu_letter_to_mi_sh eriffs_re_gov_executive_order.pdf 102 Michigan Joint Task Force on Jail and Pretrial Incarceration, Jail Population Reduction to Curb the Spread of COVID-19 (Apr. 1, 2020), https://courts.michigan.gov/News-Events/press_releases/Documents/Jails%20Task %20Force%20press%20release%20on%20COVID-19_FINAL.pdf
39

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.40 Page 40 of 71
60. Yet, despite the urgent calls to reduce jail populations, Defendants have failed to take sufficient steps to reduce the population at the Jail to a safe number. To the contrary, as of April 3, 2020, public reports stated that only 60 people had been approved for early release from the Jail and that the only people even being considered for release were people with an underlying health condition or a bond of less than $1,000.103 Further, Defendants remain woefully unprepared and incapable of taking necessary precautions to protect the people currently confined in the Jail against this unprecedented, life-threatening public health crisis
61. Alarmingly, Michigan’s coronavirus case count is doubling every three days,104 and Governor Whitmer confirmed during a press conference on April 6, 2020, that the state is nowhere close to hitting the apex of the COVID-19 pandemic.105 Hospitals in Southeast Michigan are already suffering and struggling
103 Aileen Wingblad, 6 inmates at Oakland County Jail have COVID-19, Oakland Press (Apr. 3, 2020), https://www.theoaklandpress.com/news/coronavirus/6inmates-at-oakland-county-jail-have-covid-19/article_a1fe7b48-75df-11ea-ae6b233d4bf6a9fe.html. 104 Kristen Jordan Shamus and Kristi Tanner, ‘Southeast Michigan is burning’: Michigan’s coronavirus case count doubles every 3 days, Detroit Free Press (Mar. 29, 2020), https://www.freep.com/in-depth/news/local/michigan/2020/03/28 /michigan-coronavirus-surge-covid-19-case-count/2898574001/. 105 Courtney Vinopal, WATCH: Michigan Gov. Gretchen Whitmer gives coronavirus update, PBS (Apr. 6, 2020), https://www.pbs.org/newshour /health/watch-live-michigan-gov-gretchen-whitmer-gives-coronavirus-update.
40

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.41 Page 41 of 71
to keep up with the rush of COVID-19 related patients.106 The state’s chief medical officer, Dr. Joneigh Khaldun, declared during the conference that state hospitals are overwhelmed because there are no signs that the rate of infection is slowing down.107 A mass outbreak at the Jail would further cripple the already fragile healthcare system in Michigan. As early as March 23, Oakland County Executive David Coulter was already warning that he was hearing from all of Oakland County’s hospitals that they were “already at a critical point” and that “this is going to get worse before it gets better.”108 And, just yesterday, the grisly news was reported that the County is scouting out ice rinks to store the bodies of the dead because of the potentially excessive number of fatalities that could occur in the upcoming weeks in the county’s hospitals.109
106 See, e.g., Kristen Jordan Shamus & Darcie Moran, Nurses Protest Conditions at Detroit’s Sinai-Grace, Said They Were Told to Leave, Detroit Free Press (Apr. 6, 2020), https://www.freep.com/story/news/health/2020/04/06/detroit-dmc-sinaigrace-nurses/2953385001/?utm_source=oembed&utm_medium=onsite &utm_campaign=storylines&utm_content=news&utm_term=4566614002. 107 Id. 108 Robin Erb, Alarm Grows as Michigan Hospitals Begin to Fill with Coronavirus Cases, Bridge (Mar. 23, 2020), https://www.bridgemi.com/michigan-healthwatch/alarm-grows-michigan-hospitals-begin-fill-coronavirus-cases. 109 Jennifer Dixon, Oakland County Scouts Ice Rinks to Potentially Store Bodies in ’Last Resort’ Scenario, Detroit Free Press (Apr. 14, 2020), https://www.freep.com/story/news/local/2020/04/15/coronavirus-oakland-icerinks-bodies/5137771002/.
41

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.42 Page 42 of 71
DEFENDANTS’ RESPONSES TO THE COVID-19 PANDEMIC ARE CONSTITUTIONALLY DEFICIENT AND PLACE THE PEOPLE IN ITS
CUSTODY AT HEIGHTENED RISK 62. All people incarcerated in the Jail face a significant risk of exposure to COVID-19. Defendants are well aware of the heightened threat of COVID-19 in the jails—the CDC, the Governor, medical experts, and various advocates have already alerted them of this risk as well as the preventive measures needed to protect against the further spread of COVID-19. 63. Currently in the Jail, people are forced to sleep in bunks that are one to three feet apart, and sometimes on a concrete floor right next to others, as in the case of Plaintiffs Lee and J. Cameron. People are also forced to share communal showers, toilets, and sinks in small common areas. Some bunks, like Plaintiff Briggs’ are right next to the shared toilets. 64. People confined in the Jail are not given the opportunity to practice safe social distancing, and they are forced to sit, stand, walk, eat, and sleep within six feet of other people throughout the day. 65. People confined in the Jail are not provided with soap on a regular basis, and some people like Plaintiff Saunders have been without soap for over a week. Other personal sanitation supplies are not provided at all, and the commissary is closed, so there is no way to purchase them. 66. Defendants have also not provided access to hand sanitizer to
42

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.43 Page 43 of 71
incarcerated people, but have provided it to their employees.. 67. Staff do not consistently wear protective personal equipment like
gloves or masks when interacting with people confined in the Jail, and there have been shortages in protective personal equipment for all people incarcerated and for people working in the Jail.
68. People confined in the Jail are not provided adequate cleaning supplies in the proper concentrations of strength to prevent transmission of the virus at no cost to them. Even basic cleaning supplies are difficult to come by. People incarcerated in the Jail have attempted to clean toilets with heavily diluted cleaning solution and toilet paper. There is no access to Kleenex.
69. The people tasked with cleaning cells or communal areas are not provided the protective personal equipment they need, such as masks or gloves, which would allow them to protect themselves from the virus. When gloves are provided, they are in scarce supply and people are forced to reuse them for multiple days, practically eliminating any protective benefit in slowing virus transmission.
70. Nor are people confined in the Jail provided adequate cleaning supplies to clean their own cells or living spaces, ensuring that the dozens of people who share the same cell will quickly transmit the illness to each other.
71. Defendants have provided neither paper towels nor other means for inmates to dry their hands after washing them. As a result, people who are detained
43

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.44 Page 44 of 71
must shake their hands dry or wipe them on their jail-issued uniforms, which are exposed to contaminated surfaces and laundered infrequently (due to lack of access or cost).
72. Prior to the COVID-19 pandemic, nurses made rounds in the mornings and distributed “kites”110 so that people could request medical attention. When the pandemic began, the nurses ignored the requests for days at a time. As the pandemic progresses, the nurses do not even make rounds to distribute kites so that people can request medical attention if necessary. When people finally meet with a medical professional, proper care is not provided. For example, Plaintiff Saunders went to the medical ward with COVID-19 symptoms about a month ago. While there, he went eight to twelve hours with nobody coming to check on him at all. He could not move to get his meals, which were placed just inside the door. The meals were then simply removed with no attempt to bring them to him. Other people who have been exposed to those with presumed COVID-19, have been given a 7-day supply of Tamiflu with instructions to take it if they develop symptoms. Plaintiff Briggs attempted to get medical treatment by telling a nurse that he was experiencing shortness of breath. The nurse responded that he could not be speaking if he had shortness of breath and refused to treat or test him.
110 People incarcerated at the Jail request medical attention by completing “kites,” which are written requests to see a doctor or nurse.
44

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.45 Page 45 of 71
73. People confined in the Jail are generally required to pay a $12 co-pay for each visit to the doctor, when the visit finally occurs. The people in the Jail are not provided with access to their account statements, so they do not know if these co-pays are waived for COVID-19 treatment.
74. When people begin to show symptoms of COVID-19, such as a dry cough, shortness of breath, or a fever, they are not immediately tested or quarantined, if they are tested or quarantined at all.
75. While some people who are incarcerated in the Jail have been “quarantined” for presumed COVID-19, the quarantined cells are immediately next to cells that are not quarantined. People are so close to the “quarantined” cells that they can reach into these neighboring cells through the bars on the front of their own cells. People are also shuffled from quarantined cells into non-quarantined cells at random.
76. All the people incarcerated in the Jail use shared phones when calling family members, loved ones, or lawyers. The phones are not cleaned between each use, nor are people provided with disinfectant supplies, which means that each person must risk COVID-19 infection when touching and speaking through the phone.
77. The nurses are not consistently making rounds, and Plaintiff J. Cameron was told that no doctor would be available until May. When people express to
45

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.46 Page 46 of 71
guards that they need medical treatment, the guards tell them that they must wait for a nurse. When the people remind the guards that the nurses are not coming, the guards tell them that there is nothing that they can do to help.
78. Not only are Defendants aware of the conditions in the Jail, but jail staff are actively using exposure to COVID-19 as a punitive measure to control incarcerated people. It is well known by both guards and incarcerated people at the Jail that the COVID-19 outbreak is centered in the main building. Guards in the annex have repeatedly threatened to move people in the annex who raise concerns about the hygienic conditions there into the main building where they will be exposed to COVID-19. In fact, both Plaintiff J. Cameron and Plaintiff Lee were punished in exactly this manner and were moved from the annex into the Tank as retaliation for raising concerns about their health. In the crowded Tank, they are required to sleep on the concrete floor right next to other incarcerated people in a cell that is within arm’s reach of a similarly dungeon-like cell where quarantined COVID-19 patients are being warehoused.
79. The danger posed by Plaintiffs’ incarceration during the COVID-19 pandemic is “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk” and violates their constitutional right to safety in government custody. See Helling v. McKinney, 509 U.S. 25, 36 (1993).
80. To expose people to the unmitigated risk of contracting COVID-19 is
46

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.47 Page 47 of 71
constitutionally impermissible. Failure to act in accordance with speed and urgency
will constitute a wholesale violation of the constitutional rights of those confined in
the jail.
IMMEDIATE RELEASE OF THE MEDICALLY VULNERABLE IS THE ONLY RESPONSE THAT SERVES PUBLIC HEALTH, COMMUNITY
SAFETY, AND THE INDIVIDUAL SAFETY OF EACH SUBCLASS MEMBER
81. Immediate release of medically vulnerable Plaintiffs, as well as the
subclass of medically vulnerable people they represent, remains a necessary public health intervention.111
82. Release is needed to prevent irreparable harm to members of the
medically vulnerable subclass. Because of the rapidity with which COVID-19
spreads and the danger it poses, immediate release is both necessary and the least
intrusive intervention to ensure Medically Vulnerable Class Members are provided
medically and constitutionally sufficient treatment.
83. If immediate action is not taken to dramatically reduce the population
111 Stern Decl. ¶¶ 10-11 (noting that “[d]ownsizing jail populations by releasing high risk individuals and others the court system deems eligible for release will help to “flatten the curve” overall—both within the jail setting and without); Ex 14, Declaration of Dr. Adam Lauring ¶ 37 (explaining that “drastically reducing the jail’s population is the only way to protect the health and safety of people detained in the facility and the public at large”); see also Meyer Decl. ¶¶ 37–38 (noting that population reduction in jails will be “crucially important to reducing the level of risk both for those within [jail] facilities and for the community at large,” and that stemming the flow of intakes is a part of the necessary intervention).
47

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.48 Page 48 of 71
of the Jail, all people who remain incarcerated will be at grave and unacceptable risk of contracting COVID-19—a serious and potentially life-threatening illness. People confined in prisons and jails must “be furnished with the basic human needs, one of which is ‘reasonable safety,’” Helling v. McKinney, 509 U.S. 25, 33-34 (1993) (citations omitted), which is virtually impossible given the realities of the COVID19 pandemic and the limitations inherent to the Jail.
84. The Jail is ill-equipped to manage or handle a COVID-19 outbreak— which is already occurring. The Jail lacks the ability to provide ICU-level care or access to ventilator equipment necessary to properly treat people who become infected. It does not have COVID-19 tests available for incarcerated people, and it has routinely refused offering such tests to people who exhibit known symptoms of the coronavirus. Over ten (and sometimes nearly 30) people are packed into the same cells, where people are forced into conditions where they sleep one to two feet away from another person, must share a limited supply of communal toilets, sinks, showers, furniture, and phones, and are not provided the hygiene and sanitation supplies necessary to adequately disinfect or clean their immediate surroundings, including all the high-touch surfaces and objects they are constantly forced to come into contact with.
85. Given the size of the Jail, the configuration of its cells, and staffing, the jail population must be significantly decreased to ensure adequate social distancing.
48

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.49 Page 49 of 71
86. As Plaintiffs’ expert declarant Dr. Marc Stern, a correction health expert who advises the National Sheriffs’ Association and the U.S. Department of Justice, and who has served as Assistant Secretary of Healthcare for the Washington Department of Corrections has concluded: In this unique moment, release enhances the safety of other people and the community and is necessary to protect the Plaintiff’s own health and safety.112 And those Petitioners/Plaintiffs who remain incarcerated must be able to exercise self-protective measures in a sanitary, disinfected space, and to maintain social distance from other community members to flatten the curve of the virus’s spread and protect themselves from infection.
87. Other medical experts specializing in correctional health similarly shared urgent recommendations to dramatically reduce the population of detention centers, jails, and prisons. Dr. Ranit Mishori, Senior Medical Consultant for Physicians for Human Rights and an expert in correctional health issues, has concluded that “[r]eleasing people from incarceration is the best and safest way to prevent the spread of disease and reduce the threat to the most vulnerable incarcerated people,” and that “[i]mmediate release is crucial for individuals with chronic illnesses or other preexisting conditions.”113 Release is “both necessary and urgent” given that “[t]he window of opportunity is rapidly narrowing for mitigation
112 Stern Decl. ¶¶10–12, 14. 113 Mishori Decl. ¶ 46.
49

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.50 Page 50 of 71
of COVID-19.”114 88. Dr. Jonathan Giftos, the former Medical Director for Correctional
Health Services at Riker’s Island, concluded that “the only way to really mitigate the harm of rapid spread of coronavirus in the jail system is through depopulation, releasing as many people as possible with a focus on those at highest risk of complication.”115
89. Other correctional medical and public health experts have also urged the release of people from incarceration given the heightened risk of transmission and infection, including a group of doctors who work in New York City’s jails, hospitals and shelters,116 as well as a group of more than 200 Johns Hopkins faculty in public health, bioethics, medicine, and nursing.117
90. The unprecedented coronavirus pandemic unquestionably requires individuals’ release, as multiple health experts have opined that no other measures would be a sufficient or appropriate response to protect public and individual health.
91. Releasing people from the jails would also reduce the burden on
114 Id. 115 Recipe for disaster: The spread of corona virus among detained populations, MSNBC (Mar. 18, 2020), https://www.msnbc.com/all-in/watch/-recipe-fordisaster-the-spread-of-coronavirus-among-detained-populations-80947781758. 116 Ex. 7. 117 Ex. 8.
50

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.51 Page 51 of 71
regional hospitals and health centers. 92. This Court has jurisdiction to release the medically vulnerable subclass
immediately. It further has authority to convene a three-judge panel to determine whether to issue a Prisoner Release Order once this Court concludes that social distancing is impossible unless the population at the Jail is significantly reduced.
CLASS ACTION ALLEGATIONS 93. The named Petitioners/Plaintiffs bring this action on behalf of themselves and all others similarly situated as a class action under Federal Rule of Civil Procedure 23(b)(2). 94. The class that Petitioners/Plaintiffs seek to represent is defined as all current and future persons held at the Jail during the course of the COVID-19 pandemic (“Jail Class”), including three subclasses:
a. The “Pre-trial Subclass” is defined as “All current and future persons detained at the Oakland County Jail during the course of the COVID-19 pandemic who have not yet been convicted of the offense for which they are currently held in the Jail.”
b. The “Post-conviction Subclass” is defined as “All current and future persons detained at the Oakland County Jail during the course of the COVID-19 pandemic who are have been sentenced to serve time in the Jail or who are otherwise in the
51

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.52 Page 52 of 71
Jail as the result of an offense for which they have already been convicted.” c. The “Medically-Vulnerable Subclass” is defined as: “All members of the Jail Class who are also over the age of fifty, or who, regardless of age, experience an underlying medical condition that places them at particular risk of serious illness or death from COVID-19, including but not limited to (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure and coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; and/or (l) a
52

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.53 Page 53 of 71
current or recent (last two weeks) pregnancy.” 95. This action is brought and may properly be maintained as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. This action satisfies the requirements of numerosity, commonality, typicality, and adequacy. Fed. R. Civ. P. 23(a). 96. On April 15, 2020, the Jail confined over 800 people, all of whom are eligible members of this class. Therefore, the class and subclass meet the numerosity requirement of Federal Rule of Civil Procedure 23(a). 97. The subclasses are also too numerous for joinder of all members to be practicable. In Michigan, pre-trial detainees constitute approximately 50% of all people in jails,118 so the Pre-trial and Post-conviction subclasses likely each include approximately half of the class. And demographic data regarding the health of correctional populations indicates that well over 30% of detained people suffer from at least one condition rendering them medically vulnerable.119 Thus, the medically vulnerable subclass likely contains hundreds of people as well.
118 See Michigan Joint Task Force on Jail and Pretrial Incarceration, Report and Recommendations 7 (Jan. 10, 2020), https://courts.michigan.gov/News-Events/ Documents/final/Jails%20Task%20Force%20Final%20Report%20and%20 Recommendations.pdf. 119 Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020), www.prisonpolicy.org/blog/2020/03/06/pandemic/.
53

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.54 Page 54 of 71
98. Joinder is impracticable because the class members are numerous; the class is fluid due to the inherently transitory nature of pretrial incarceration; and the class members are incarcerated and impoverished, which limits their ability to institute individual lawsuits. Certifying this class supports judicial economy.
99. Common questions of law and fact exist as to all members of the class. The named Petitioners/Plaintiffs seek common declarative and injunctive relief concerning whether Defendants’ policies, practices, and procedures violate the constitutional rights of the class members. These common questions of fact and law include, but are not limited to:
1) Whether the conditions of confinement at the Jail since the beginning of the COVID-19 pandemic amount to constitutional violations;
2) What measures Defendants implemented in the Jail in response to the COVID-19 crisis;
54

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.55 Page 55 of 71
3) Whether Defendants’ practices during the COVID-19 pandemic exposed people confined at the Jail to a substantial risk of serious harm; and
4) Whether Defendants knew of and disregarded a substantial risk of serious harm to the safety and health of the class.
100. Plaintiffs’ claims are typical of the class members’ claims. The injuries that Petitioners/Plaintiffs have suffered due to Defendants’ unconstitutional course of conduct are typical of the injuries suffered by the class. All class members seek the same declaratory and injunctive relief.
101. The Petitioners/Plaintiffs are adequate representatives of the class because their interests in the vindication of the legal claims they raise are entirely aligned with the interests of the other class members, each of whom has the same constitutional claims. There are no known conflicts of interest among members of the proposed class, and the interests of the named Petitioners/Plaintiffs do not conflict with those of the other class members.
102. Petitioners/Plaintiffs are represented by counsel with experience and success in litigating complex civil rights matters in federal court. The interests of the members of the class will be fairly and adequately protected by the named Petitioners/Plaintiffs and their attorneys.
103. Because the putative class challenges Defendants’ system as
55

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.56 Page 56 of 71
unconstitutional through declaratory and injunctive relief that would apply the same relief to every member of the class, certification under Rule 23(b)(2) is appropriate and necessary.
104. A class action is the only practicable means, by which the named Petitioners/Plaintiffs and class members can challenge the Defendants’ unconstitutional actions and obtain the necessary immediate declaratory and injunctive relief sought for themselves and all other members of the class.
DEFENDANTS’ FAILURE TO ADEQUATELY MITIGATE AGAINST THE SPREAD OF COVID-19 IS OBJECTIVELY UNREASONABLE AND VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENT RIGHTS OF PETITIONERS/PLAINTIFFS AND CLASS MEMBERS
105. Defendants violate Plaintiffs’ Eighth and Fourteenth Amendment rights by incarcerating them in conditions that fail to adequately mitigate against the spread of a potentially fatal virus in the midst of a growing pandemic and in spite of their knowledge and ability to do so.
106. All people held in the Jail, whether detained pretrial or incarcerated post-conviction, are entitled to be protected from conditions of confinement that create a substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (correctional officer violated Eighth Amendment by consciously failing to prevent “a substantial risk of serious harm”); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“deliberate indifference” to serious medical needs violates the Eighth
56

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.57 Page 57 of 71
Amendment). Corrections officials have a constitutional obligation to provide for detainees’ reasonable safety and to address their serious medical needs. See DeShaney v. Winnebago County Dept. of Soc. Services, 489 U.S. 189, 200 (1989) (“[W]hen the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.” ); Youngberg v. Romeo, 457 U.S. 307, 315–16, 324 (1982) (the state has an “unquestioned duty to provide adequate . . . medical care” for detained persons); Wilson v. Seiter, 501 U.S. 294, 300 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976); Brown v. Plata, 563 U.S. 493, 531-32 (2011).
107. It is well established that, under the Fourteenth Amendment, pretrial detainees are entitled to at least the same level of protection as convicted detainees. See Richko v. Wayne Cty., Mich., 819 F.3d 907, 915 (6th Cir. 2016); see also City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (“[T]he due process rights of a [pretrial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner.”). Indeed, as explained in paragraph 112, infra, a pre-trial detainee’s burden of proving that the conditions of their confinement are unconstitutional are lower than for convicted persons.
57

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.58 Page 58 of 71
108. Exposure to an infectious disease like COVID-19 without adequate preventive measures is objectively unreasonable under the Fourteenth Amendment and constitutes deliberate indifference to a serious risk to health and safety, in direct violation of the Eighth Amendment. Helling, 509 U.S. at 33-34 (“Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease”); Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation to protect [forcibly confined] inmates from infectious disease.”); Flanory v. Bonn, 604 F.3d 249 (6th Cir. 2010) (recognizing that a complete denial of dental hygiene products can constitute deliberate indifference); see also Farmer v. Brennan, 511 U.S. 825, 833 (1994) (“[H]aving stripped [prisoners] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.”); Johnson v. Operation Get Down, Inc., No. 11-15487, 2014 WL 3752481, at *5 (E.D. Mich. 2014) (finding that even a “short period” of exposures to an infectious antibiotic resistant staph infection could constitute deliberate indifference); Lee v. Birkett, No. 09–cv–10723, 2010 WL 1131485, at *5 (E.D. Mich. Feb.18, 2010) (holding that allegations that prisoners were forced to use common razors and be exposed to other unsanitary conditions for two months could constitute deliberate indifference).
109. Jail officials violate this affirmative obligation towards convicted
58

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.59 Page 59 of 71
prisoners by showing “deliberate indifference” to the substantial risk of serious harm. Wilson, 501 U.S. at 303. With respect to an impending infectious disease like COVID-19, deliberate indifference is satisfied when corrections officials “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” even when “the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33 (holding that a prisoner “states a cause of action . . . by alleging that [corrections officials] have, with deliberate indifference, exposed him to conditions that pose an unreasonable risk of serious damage to future health”) (emphasis added); see also Hope v. Pelzer, 536 U.S. 730, 738 (2002) (citing Farmer, 511 U.S. at 842) (court “may infer the existence of [deliberate indifference] from the fact that the risk of harm is obvious”).
110. This Court need not “await a tragic event” to find that Defendants are maintaining unconstitutional conditions of confinement in the midst of a global pandemic. See Helling, 509 U.S. at 33. So long as the risk of serious harm is “likely,” as it is here, the Eighth Amendment is violated even if “the complaining inmate shows no serious current symptoms,” it is “not alleged that the likely harm would occur immediately,” and “the possible infection might not affect all of those exposed.” Id.
111. As established above, Petitioners/Plaintiffs face a significant risk of exposure to the novel coronavirus, which poses a serious threat of severe illness or
59

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.60 Page 60 of 71
death to all class members, and to the Medically Vulnerable subclass in particular given the subclass members’ known vulnerable health conditions. Defendants are well aware of these serious risks to their health and safety, and their failure to provide constitutionally adequate conditions of confinement during this growing global pandemic constitutes deliberate indifference.
112. Defendants’ deliberate indifference to the health and safety of people incarcerated in the Jail satisfies both objective and subjective standards. However, following the Supreme Court’s decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015), the Sixth Circuit has recognized the “shift in Fourteenth Amendment deliberate indifference jurisprudence [that] calls into serious doubt whether [pretrial detainees] need even show that the individual defendant-officials were subjectively aware of [their] serious medical conditions.” Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th Cir. 2018). As alleged in detail above, the heightened risk of COVID-19 transmission in jails and other carceral facilities have been widely reported, and the need for risk mitigation—including testing, physical distancing, and sanitation— has been well established locally and nationwide. Yet the Jail has failed to implement the types of changes required to its conditions to adequately protect against COVID19 transmission and infection within its walls.
CLAIMS FOR RELIEF COUNT I: Declaratory and Injunctive Relief for Violation of the Eighth
Amendment
60

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.61 Page 61 of 71
(42 U.S.C. § 1983) Jail Class and Post-conviction Subclass versus All Defendants 113. Petitioners/Plaintiffs incorporate by reference each allegation contained in the preceding paragraphs as if set forth fully herein. 114. Under the Eighth Amendment, as applicable to States and their political subdivisions through the Fourteenth Amendment, post-convicted persons in carceral custody have a right to be free from cruel and unusual punishment. As part of the right, the government must provide incarcerated persons with reasonable safety and address serious medical needs that arise in jail. See, e.g., Estelle, 429 U.S. at 104; DeShaney, 489 U.S. at 200. 115. As part of this right, the government must provide incarcerated persons with reasonable safety and address serious medical needs that arise in jail. Deliberate indifference to the serious risk COVID-19 poses to members of the Jail Class, and particularly members of the Medically-Vulnerable Subclass, violates this right. 116. Plaintiffs, and the class they represent, suffer a substantial risk of serious harm to their health and safety due to the presence of, and spread of, COVID19. 117. Defendants know of and are failing to abate the serious risks that COVID-19 poses to Plaintiffs, including severe illness, permanent physical damage, and death. These risks are well-established and obvious to Defendants.
61

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.62 Page 62 of 71
118. Defendants are subjecting Petitioners/Plaintiffs to conditions of confinement that increase their risk of contracting COVID-19, for which there is no known vaccine, treatment, or care. Due to the conditions at the Jail, Petitioners/Plaintiffs are unable to take steps to protect themselves—such as social distancing, accessing medical attention or testing, or washing their hands regularly— and Defendants have failed to provide adequate protections or mitigation measures. Defendants act with deliberate indifference towards Petitioners/Plaintiffs by failing to adequately safeguard their health and safety in the midst of a potential outbreak of a contagious, infectious disease.
119. As a result of Defendants’ unconstitutional actions, Petitioners/Plaintiffs are suffering irreparable injury.
120. Accordingly, Defendants, as supervisors, direct participants, and policy makers for Oakland County, have violated and are violating the rights of the Posttrial Subclasses under the Eighth Amendment.
COUNT II: Declaratory and Injunctive Relief for Violation of the Fourteenth Amendment (42 U.S.C. § 1983))
Pretrial Subclass versus All Defendants 121. Petitioners/Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 122. Under the Fourteenth Amendment, corrections officials are required to provide for the reasonable health and safety of persons in pretrial custody.
62

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.63 Page 63 of 71
Youngberg v. Romeo, 457 U.S. 307, 315–16, 324 (1982) (the state has an “unquestioned duty to provide adequate . . . medical care” for detained persons); see also City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (“[T]he due process rights of a [pretrial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner.”)
123. Due process claims brought by pretrial detainees under the Fourteenth Amendment are evaluated under an objective standard. See Richmond, 885 F.3d at 938 n.3; Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (en banc); Darnell v. Pineiro, 849 F.3d 17, 34–35 (2d Cir. 2017); Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018). Members of the Pre-Trial subclass are not required to show that Defendants are subjectively aware of a substantial risk of serious harm due to COVID-19, although if such a showing is required that standard is met under the circumstances presented here.
124. The Jail has neither the capacity nor the ability to comply with public health guidelines to prevent an outbreak of COVID-19 and cannot provide for the safety of the Jail Class. Defendants’ actions and inactions result in the confinement of members of the Jail class in a facility where they do not have the capacity to test for, treat, or prevent COVID-19 outbreaks, which violates Plaintiffs’ rights to treatment and adequate medical care.
125. Defendants violate Petitioners/Plaintiffs’ due process rights by failing
63

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.64 Page 64 of 71
to adequately safeguard their health and safety in the midst of a potential outbreak of a contagious, infectious disease. Petitioners/Plaintiffs face a serious risk of intense pain, illness, lasting bodily damage, and ultimately, death in the Jail due to the Defendants’ insufficient measures to prevent the spread of infection.
126. Accordingly, Defendants, as supervisors, direct participants, and policy makers for Oakland County, have violated and are violating the rights of the Pretrial Subclass under the Fourteenth Amendment.
Count III: Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 Medically-Vulnerable Subclass versus all Defendants
127. Petitioners/Plaintiffs repeat and re-allege paragraphs 1 through 113 as if fully set forth in this Count.
128. Because the Medically Vulnerable Plaintiffs/Petitioners and subclass seek release in light of the immediate and urgent risks to their health and lives, there is no other available remedy that could protect their rights.
129. Respondents/Defendants are holding Petitioners/Plaintiffs in custody in violation of the Due Process Clause of the Eighth and/or Fourteenth Amendment to the Constitution of the United States. Both amendments forbid exposing Petitioners/Plaintiffs to a severe risk of death, pain, or permanent severe injury, and at this time, with respect to the Medically-Vulnerable Subclass, no options available to Respondents/Defendants will adequately mitigate that risk other than release from
64

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.65 Page 65 of 71
custody. 130. Section 2241(c)(3) allows this court to order the release of people like
Plaintiffs who are held “in violation of the Constitution.” 28 U.S.C. 2241(c)(3); Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (“It is clear, not only from the language of §§ 2241(c)(3) and 2254(a), but also from the common-law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody.”). Such relief is appropriate where, as here, there are no set of conditions under which an individual can be constitutionally detained, and the petitioner is thus “challenging the fact, not conditions, of her confinement.”120
COUNT IV: Declaratory and Injunctive Relief for Violation of the Fourteenth Amendment (42 U.S.C. § 1983))
Medically Vulnerable Subclass versus All Defendants 131. Petitioners/Plaintiffs repeat and re-allege paragraphs 1 through 113 as if fully set forth in this Count. 132. The Medically Vulnerable Plaintiffs/Petitioners and subclass seek release in light of the immediate and urgent risks to their health and lives. There is no other available remedy that could protect their rights.
120 Ex. 15, Order at 8, Malam v. Adducci, No. 20 cv-10829 (E.D. Mich. Apr. 6, 2020), DE 23.
65

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.66 Page 66 of 71
133. Respondents/Defendants are holding Petitioners/Plaintiffs in custody in violation of the Due Process Clause of the Eighth and/or Fourteenth Amendment to the Constitution of the United States. Both amendments forbid exposing Petitioners/Plaintiffs to a severe risk of death, pain, or permanent severe injury. At this time, with respect to the Medically Vulnerable Subclass, no options are available to Respondents/Defendants that will adequately mitigate that risk other than removing the Petitioners/Plaintiffs from custody at the Jail.
134. Accordingly, Petitioners/Plaintiffs are entitled to be transferred out of the Jail to a facility that does not expose them to an unconstitutional risk of substantial harm, including a transfer to home confinement.
PRAYER FOR RELIEF WHEREFORE, Petitioners/Plaintiffs and the Class Members respectfully request that the Court:
A. Certify the proposed class and subclasses; B. Enter a declaratory judgment that Defendants are violating Named Plaintiffs’
and Class Members’ constitutional rights by failing to adequately safeguard their health and safety in the midst of a potential outbreak of a contagious, infectious disease; C. Enter a temporary restraining order, preliminary injunction, and permanent injunction, and/or writ of habeas corpus requiring Defendants to immediately
66

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.67 Page 67 of 71
release all Medically Vulnerable Petitioners/Plaintiffs and Subclass Members or transferring them to home confinement; D. Enter a temporary restraining order, preliminary injunction, and permanent injunction requiring, during the COVID-19 pandemic, for Defendants to:
a. Frequently communicate to all incarcerated people information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices;
b. Provide adequate spacing of six feet or more between incarcerated people so that social distancing can be accomplished in accordance with CDC guidelines;
c. Ensure that each incarcerated person receives, free of charge, an individual supply of hand soap and paper towels sufficient to allow frequent hand washing and drying each day; an adequate supply of clean implements for cleaning such as sponges and brushes and disinfectant hand wipes or disinfectant products effective against the virus that causes COVID-19 for daily cleanings;
d. Ensure that all incarcerated people have access to hand sanitizer containing at least 60% alcohol;
e. Provide access to daily showers and daily access to clean laundry, including clean personal towels and washrags after each shower;
67

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.68 Page 68 of 71
f. Require that all Jail staff wear personal protective equipment, including CDC-recommended surgical masks, when interacting with any person or when touching surfaces in cells or common areas;
g. Require that all Jail staff wash their hands, apply hand sanitizer containing at least 60% alcohol, or change their gloves both before and after interacting with any person or touching surfaces in cells or common areas;
h. Take each incarcerated person’s temperature daily (with a functioning and properly operated and sanitized thermometer) to identify potential COVID-19 infections;
i. Assess (through questioning) each incarcerated person daily to identify potential COVID-19 infections;
j. Conduct immediate testing for anyone displaying known symptoms of COVID-19;
k. Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 receive adequate medical care and are properly quarantined in a non-punitive setting, with continued access to showers, recreation, mental health services, reading materials, phone and video visitation with loved ones, communications with counsel, and personal property;
68

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.69 Page 69 of 71
l. Respond to all emergency (as defined by the medical community) requests for medical attention within an hour;
m. Provide sufficient disinfecting supplies, free of charge, so incarcerated people can clean high-touch areas or items (including, but not limited to, phones and headphones) between each use;
n. Waive all medical co-pays for those experiencing COVID-19-related symptoms;
o. Waive all charges for medical grievances during this health crisis; p. Cease and desist relocating or threatening to relocate incarcerated
people into infected areas of the jail as punishment or sanction for any kind of conduct. E. If immediate release is not granted on the basis of this Petition alone, expedite review of the Petition, including oral argument, via telephonic or videoconference if necessary; F. Enter an order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; G. Order such other and further relief as this Court deems just, proper, and equitable.
69

Case 2:20-cv-10949-LVP-MJH ECF No. 1 filed 04/17/20 PageID.70 Page 70 of 71

Respectfully submitted,

/s/ Krithika Santhanam Krithika Santhanam (DC Bar No. 1632807)* Thomas B. Harvey (MBE #61734MO)* Advancement Project National Office 1220 L Street, N.W., Suite 850 Washington, DC 20005 Tel: (202) 728-9557 Ksanthanam@advancementproject.org Tharvey@advancementproject.org
/s/ Philip Mayor Philip Mayor (P81691) Daniel S. Korobkin (P72842) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6803 pmayor@aclumich.org dkorobkin@aclumich.org

/s/ Cary S. McGehee Cary S. McGehee (P42318) Kevin M. Carlson (P67704) Pitt, McGehee, Palmer, Bonanni & Rivers, PC 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 cmcgehee@pittlawpc.com kcarlson@pittlawpc.com
/s/ Allison L. Kriger________ Allison L. Kriger (P76364) LaRene & Kriger, PLC 645 Griswold, Suite 1717 Detroit, MI 48226 (313) 967-0100 Allison.kriger@gmail.com

/s/ Alexandria Twinem Alexandria Twinem (D.C. Bar No. 1644851)* Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Tel: 202-894-6126 Fax: 202-609-8030 alexandria@civilrightscorps.org

Attorneys for Plaintiffs/Petitioners

*Applications for admission forthcoming

Dated: April 17, 2020

70

JS 44 (Rev. 11/15C) ase 2:20-cv-10949-LVP-MJCHIVEICLFCNOo.V1ERfileSdH0E4/E17T/20 PageID.71 Page 71 of 71

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS
Richard Briggs, Jamaal Cameron, David Kucharski, Raj Lee, Michael Cameron, Matthew Saunders (b) County of Residence of First Listed Plaintiff Oakland
(EXCEPT IN U.S. PLAINTIFF CASES)

DEFENDANTS
Oakland County Michigan, Michael Bouchard, Curtis D. Childs
County of Residence of First Listed Defendant Oakland
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number)
Cary S. McGehee (P42318) Pitt McGehee Palmer Bonanni & Rivers 117 W. 4th Street, Suite 200 Royal Oak, MI 48067 (248) 398-9800
II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

’ 1 U.S. Government Plaintiff

X’ 3 Federal Question (U.S. Government Not a Party)

Attorneys (If Known)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

’ 1 ’ 1 Incorporated or Principal Place

’ 4 ’4

of Business In This State

’ 2 U.S. Government Defendant

’ 4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

’ 2 ’ 2 Incorporated and Principal Place of Business In Another State

’ 5 ’5

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

Citizen or Subject of a Foreign Country

’ 3 ’ 3 Foreign Nation

FORFEITURE/PENALTY

BANKRUPTCY

’ 6 ’6 OTHER STATUTES

’ 110 Insurance

PERSONAL INJURY

PERSONAL INJURY ’ 625 Drug Related Seizure

’ 422 Appeal 28 USC 158

’ 120 Marine

’ 310 Airplane

’ 365 Personal Injury -

of Property 21 USC 881 ’ 423 Withdrawal

’ 130 Miller Act

’ 315 Airplane Product

Product Liability

’ 690 Other

28 USC 157

’ 140 Negotiable Instrument

Liability

’ 367 Health Care/

’ 150 Recovery of Overpayment ’ 320 Assault, Libel &

Pharmaceutical

PROPERTY RIGHTS

& Enforcement of Judgment

Slander

Personal Injury

’ 820 Copyrights

’ 151 Medicare Act

’ 330 Federal Employers’

Product Liability

’ 830 Patent

’ 152 Recovery of Defaulted

Liability

’ 368 Asbestos Personal

’ 840 Trademark

Student Loans

’ 340 Marine

Injury Product

(Excludes Veterans)

’ 345 Marine Product

Liability

LABOR

SOCIAL SECURITY

’ 153 Recovery of Overpayment

Liability

PERSONAL PROPERTY ’ 710 Fair Labor Standards

’ 861 HIA (1395ff)

of Veteran’s Benefits

’ 350 Motor Vehicle

’ 370 Other Fraud

Act

’ 862 Black Lung (923)

’ 160 Stockholders’ Suits

’ 355 Motor Vehicle

’ 371 Truth in Lending

’ 720 Labor/Management

’ 863 DIWC/DIWW (405(g))

’ 190 Other Contract

Product Liability

’ 380 Other Personal

Relations

’ 864 SSID Title XVI

’ 195 Contract Product Liability ’ 360 Other Personal

Property Damage

’ 740 Railway Labor Act

’ 865 RSI (405(g))

’ 196 Franchise

Injury

’ 385 Property Damage

’ 751 Family and Medical

’ 362 Personal Injury -

Product Liability

Leave Act

Medical Malpractice

’ 790 Other Labor Litigation

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS ’ 791 Employee Retirement

FEDERAL TAX SUITS

’ 210 Land Condemnation

’ 440 Other Civil Rights

Habeas Corpus:

Income Security Act

’ 870 Taxes (U.S. Plaintiff

’ 220 Foreclosure

’ 441 Voting

’ 463 Alien Detainee

or Defendant)

’ 230 Rent Lease & Ejectment ’ 442 Employment

’ 510 Motions to Vacate

’ 871 IRS—Third Party

’ 240 Torts to Land

’ 443 Housing/

Sentence

26 USC 7609

’ 245 Tort Product Liability

Accommodations

’ 530 General

’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty

IMMIGRATION

Employment

Other:

’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other

Other

X’ 550 Civil Rights

’ 448 Education

’ 555 Prison Condition

’ 462 Naturalization Application ’ 465 Other Immigration
Actions

’ 560 Civil Detainee -

Conditions of

Confinement

’ 375 False Claims Act ’ 376 Qui Tam (31 USC
3729(a)) ’ 400 State Reapportionment ’ 410 Antitrust ’ 430 Banks and Banking ’ 450 Commerce ’ 460 Deportation ’ 470 Racketeer Influenced and
Corrupt Organizations ’ 480 Consumer Credit ’ 490 Cable/Sat TV ’ 850 Securities/Commodities/
Exchange ’ 890 Other Statutory Actions ’ 891 Agricultural Acts ’ 893 Environmental Matters ’ 895 Freedom of Information
Act
’ 896 Arbitration ’ 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision ’ 950 Constitutionality of
State Statutes

V. ORIGIN (Place an “X” in One Box Only)

X’ 1

Original Proceeding

’ 2 Removed from State Court

’ 3 Remanded from Appellate Court

’ 4 Reinstated or ’ 5 Transferred from ’ 6 Multidistrict

Reopened

Another District

Litigation

(specify)

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

VI. CAUSE OF ACTION Brief description of cause:

42 U.S.C. § 1983

8th & 14th Amendment violations

VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION

DEMAND $

CHECK YES only if demanded in complaint:

COMPLAINT:

UNDER RULE 23, F.R.Cv.P.

JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S)

IF ANY

(See instructions):
JUDGE

DOCKET NUMBER

DATE
April 17, 2020

SIGNATURE OF ATTORNEY OF RECORD /s/ Cary S. McGehee

FOR OFFICE USE ONLY

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

Case 2:20-cv-10949-LVP-MJH ECF No. 1-1 filed 04/17/20 PageID.72 Page 1 of 1
INDEX OF EXHIBITS Exhibit 1: Declaration of Dr. Marc Stern Exhibit 2: Declaration of Dr. Jaime Meyer Exhibit 3: Declaration of Elizabeth Y. Chiao Exhibit 4: Declaration of Dr. Jonathan Golob Exhibit 5: Declaration of Dr. Carlos Franco Parades Exhibit 6: CDC Interim Guidance on Management of Coronavirus Disease 2019 Exhibit 7: Letter from NYC Council Member Brad Lander Exhibit 8: Letter from John Hopkins Faculty to Governor Hogan Exhibit 9: Declaration of Dr. Monat Mishori Exhibit 10: Declaration of Robert B. Greifinger Exhibit 11: Michigan Executive Order 2020-29 Exhibit 12: Letter from ACLU of Michigan to Chief Judges, March 31, 2020 Exhibit 13: Letter from ACLU of Michigan to Sheriffs, March 31, 2020 Exhibit 14: Declaration of Dr. Adam Lauring Exhibit 15: Order, Malam v. Adducci, No. 20-cv-10829 (E.D. Mich. April 6,
2020)

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.73 Page 1 of 20
Exhibit 1

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.74 Page 2 of 20
DECLARATION OF DR. MARC STERN, MD MPH On this 14th day of April, 2020, I hereby declare: 1. I am a physician, board-specialized in internal medicine, specializing in correctional health care. On a regular basis, I investigate, evaluate, and monitor the adequacy of health care delivery systems in correctional institutions on behalf of a variety of parties including federal courts. Most recently, I served as the Assistant Secretary of Health Care for the Washington State Department of Corrections. In terms of educational background, I received a Bachelor of Science degree from State University of New York (Albany) in 1975, a medical degree from State University of New York (Buffalo) in 1982, and a Master of Public Health from Indiana University in 1992. I am an Affiliate Assistant Professor at the University of Washington School of Public Health. 2. My prior experience includes working with the Office of Civil Rights and Civil Liberties of the U.S. Department of Homeland Security; the Special Litigation Section of the Civil Rights Division of the U.S. Department of Justice; and state departments of corrections and county jails. Through 2013, I taught the National Commission on Correctional Health Care’s (NCCHC) correctional health care standards semi-annually to correctional health care administrators at NCCHC’s national conferences. I authored a week-long curriculum commissioned by the National Institute of Corrections of the U.S. Department of Justice to train
1

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.75 Page 3 of 20
jail and prison wardens and health care administrators in the principles and practice of operating safe and effective correctional health care operations, and served as the principal instructor for this course. I currently also serve as the COVID-19 expert resource to the National Sheriffs Association and the Washington Association of Sheriffs and Police Chiefs.
3. In the past four years alone, I have been qualified as an expert in several jurisdictions on correctional health care systems and conditions of confinement. Attached as Exhibit A is a copy of my curriculum vitae.
4. I am not receiving payment in exchange for providing this affidavit to counsel for the Plaintiffs regarding appropriate correctional healthcare measures during the COVID-19 pandemic. In light of the emergency conditions occurring in jails and prisons across the country, I am providing my services pro bono.
5. I am familiar with the virus from a clinical perspective, including its causes and conditions, its transmission – especially in crowded and unsanitary conditions – and its ability to quickly spread through correctional facilities.
6. In the context of a pandemic like the one we currently face, public health and public safety interests are closely intertwined. When and if correctional staffing challenges arise due to the need for staff to quarantine, seek treatment, or care for dependents, managing internal safety in carceral settings becomes
2

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.76 Page 4 of 20
even more challenging. Understaffing in the correctional setting is dangerous for staff as well as incarcerated people, and the stress and fear of the current crisis only serve to increase those risks.
7. Jails and prisons are congregate environments, i.e. places where people live, eat, shower, and sleep in close proximity. In such environments, infectious diseases that are transmitted via the air or touch, as does COVID-19 – are more likely to spread. The spread of COVID-19 in similar environments such as nursing homes and cruise ships, and now correctional facilities themselves, has already been demonstrated.
8. The CDC and other public health authorities recommend a number of preventive steps to prevent or decrease the spread of COVID-19. It can be difficult if not impossible to execute all these recommendations or execute them effectively in jails and prisons, placing people at risk.
9. Although it is important for jails to comply with the CDC recommendations, it is equally important to understand that compliance with these standards alone is not enough to create a carceral setting that fully protects the health and safety of the people detained there. First of all, although the CDC guidelines are based on science, as a federal institution, CDC would avoid issuing recommendations, such as downsizing, that can be seen as imposing requirements on local governments around the country, even when the science would support
3

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.77 Page 5 of 20
such recommendations. Second, and relatedly, the CDC guidelines incorporate a “harm reduction” approach, a common practice in public health guidance. The harm reduction approach recognizes that though there is an appropriate and safe way to address a public health problem, people do not always do things in that way, and so provides guidance on how to reduce risk of harm even when not following the appropriate practices. For example, the CDC guidance, like public health guidance everywhere, states that social distancing should permit six feet or more of social distancing between sleeping quarters, but also states that such distancing should be provided “if space allows.” This does not mean that it is safe to have less than six feet of social distance in a jail, and in fact a carceral setting that does not allow for such social distancing is not a safe one and is likely to facilitate the spread of COVID-19.
10. For this reason, it is also important to reduce the number of persons incarcerated. I recognize that in most institutions, this number cannot be reduced to zero. However, the lower the number, the lower the risk. In other words, reducing the population to, say, a number that allows single occupancy in all rooms is better than maintaining a higher population number, but will still not achieve the level of risk that would exist if the population were released.
11. Downsizing jail populations serves two critical public health aims: (1) targeting residents who are at elevated risk of suffering from severe symptoms
4

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.78 Page 6 of 20
of COVID-19 (“medically at-risk”); and (2) allowing those who remain incarcerated to maintain social distancing and avoid other risks associated with forced communal living. Because m e d i c a l l y a t - r i s k populations are at the highest risk of severe complications from COVID-19, and because when they develop severe complications they will be transported to community hospitals— thereby using scarce community resources (ER beds, general hospital beds, ICU beds)—avoiding disease in this population is a critical contribution to public health overall. Because the staff who work at the jail share risk with the communal residents, reducing spread of infection in the jail significantly reduces the chances of a staff member infecting his or her family or community.
12. Downsizing jail populations by releasing high risk individuals and others the court system deems eligible for release will help to “flatten the curve” overall—both within the jail setting and without.
13. Thus, taking immediate and concerted efforts to implement preventive steps, as well as reducing the population to the lowest number possible prioritizing those who are elderly or have underlying medical conditions defined by the CDC, will increase public safety via reducing public health risk.
14. For the first time in history, large scale decisions about incarceration need to be made on the basis of public safety, not only considering criminal justicerelated factors, but also public health-related factors.
5

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.79 Page 7 of 20
15. I have reviewed the declarations of Jamaal Cameron and Richard Briggs. If accurate, they highlight a number of conditions or practices that are inconsistent with current public health recommendations: crowded conditions which do not allow safe distancing; unsafe practices for isolating residents with suspected COVID-19; inadequate disinfection of frequently touched common surfaces, inadequate provision of supplies for disinfecting surfaces; inadequate provision of hand soap, and inadequate access to episodic care (barriers to requesting care and insufficient evaluation when care is accessed).
16. Thoughtful downsizing that takes into account public safety, based not only criminal justice-related factors, but also public health-related factors, should be implemented in tandem with aggressive prevention measures that are based on national recommendations, modified, as necessary by public health and medical experts to adapt to the unique combination of physical structure and layout, operations, policies, logistics, inmate characteristics, and staffing factors of the jail.
18. I declare under penalty of perjury that the foregoing is true and correct.
Executed on April 14, 2020.
Marc Stern, MD MPH
6

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.80 Page 8 of 20
EXHIBIT A
CV of Dr. Marc Stern

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.81 Page 9 of 20

MARC F. STERN, M.D., M.P.H., F.A.C.P.

April, 2020

marcstern@live.com +1 (360) 701–6520

SUMMARY OF EXPERIENCE

CORRECTIONAL HEALTH CARE CONSULTANT

2009 – PRESENT

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

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

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

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.82 Page 10 of 20

Marc F. Stern, M.D.

Page 2

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

OLYMPIA BUPRENORPHINE CLINIC, OLYMPIA, WASHINGTON

2019 - PRESENT

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

OLYMPIA FREE CLINIC, OLYMPIA, WASHINGTON

2017 - PRESENT

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

OLYMPIA UNION GOSPEL MISSION CLINIC, OLYMPIA, WASHINGTON

2009 – 2014

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

WASHINGTON STATE DEPARTMENT OF CORRECTIONS

2002 – 2008

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

Responsible for the medical, mental health, chemical dependency (transiently), and dental care of 15,000 offenders in total confinement. Oversaw an annual operating budget of $110 million and 700 health care staff.

• As the first incumbent ever in this position, ushered the health services division from an operation of 12 staff in headquarters, providing only consultative services to the Department, to an operation with direct authority and

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.83 Page 11 of 20

Marc F. Stern, M.D.

Page 3

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

NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES

2001 – 2002

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

CORRECTIONAL MEDICAL SERVICES, INC. (now CORIZON)

2000 – 2001

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

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

1999 – 2000

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.84 Page 12 of 20

Marc F. Stern, M.D.

Page 4

ALBANY COUNTY CORRECTIONAL FACILITY, ALBANY, NEW YORK

1998 – 1999

Acting Facility Medical Director, 1998 – 1999

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

VETERANS ADMINISTRATION MEDICAL CENTER, ALBANY, NY

1992 – 1998

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

ERIE COUNTY HEALTH DEPARTMENT, BUFFALO, NY

1988 – 1990

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

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

1988 – 1990

VETERANS ADMINISTRATION MEDICAL CENTER, BUFFALO, NY

1985 – 1990

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

FACULTY APPOINTMENTS

2020 – present 2007 – present
1999 – present
1996 – 2002

Faculty Associate, Center for Human Rights, University of Washington
Affiliate Assistant Professor, Department of Health Services, School of Public Health, University of Washington Clinical Professor, Fellowship in Applied Public Health (previously Volunteer Faculty, Preventive Medicine Residency), University at Albany School of Public Health
Volunteer Faculty, Office of the Dean of Students, University at Albany

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.85 Page 13 of 20

Marc F. Stern, M.D.

Page 5

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

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

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

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

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.86 Page 14 of 20

Marc F. Stern, M.D.

Page 6

1973 – 1975 1972 – 1975
1972 – 1975

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

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

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

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

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

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

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

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.87 Page 15 of 20

Marc F. Stern, M.D.

Page 7

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

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

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.88 Page 16 of 20

Marc F. Stern, M.D.

Page 8

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

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.89 Page 17 of 20

Marc F. Stern, M.D.

Page 9

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

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.90 Page 18 of 20

Marc F. Stern, M.D.

Page 10

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

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

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.91 Page 19 of 20

Marc F. Stern, M.D.

Page 11

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

Case 2:20-cv-10949-LVP-MJH ECF No. 1-2 filed 04/17/20 PageID.92 Page 20 of 20

Marc F. Stern, M.D.

Page 12

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

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

Case 2:20-cv-10949-LVP-MJH ECF No. 1-3 filed 04/17/20 PageID.93 Page 1 of 24
Exhibit 2

Case 2:2C0a-csve-110:2904-9c-vL-V0P18-M03J-HAKEHCFDNocou.m1-e3nt f4il2ed F0i4le/1d70/230/16/P20agePIDag.9e41 oPf a2g3e 2 of 24
Declaration of Dr. Jaimie Meyer
Pursuant to 28 U.S.C.§ 1746, I hereby declare as follows:
I. Background and Qualifications
1. I am Dr. Jaimie Meyer, an Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut. I am board certified in Internal Medicine, Infectious Diseases and Addiction Medicine. I completed my residency in Internal Medicine at NY Presbyterian Hospital at Columbia, New York, in 2008. I completed a fellowship in clinical Infectious Diseases at Yale School of Medicine in 2011 and a fellowship in Interdisciplinary HIV Prevention at the Center for Interdisciplinary Research on AIDS in 2012. I hold a Master of Science in Biostatistics and Epidemiology from Yale School of Public Health.
2. I have worked for over a decade on infectious diseases in the context of jails and prisons. From 2008-2016, I served as the Infectious Disease physician for York Correctional Institution in Niantic, Connecticut, which is the only state jail and prison for women in Connecticut. In that capacity, I was responsible for the management of HIV, Hepatitis C, tuberculosis, and other infectious diseases in the facility. Since then, I have maintained a dedicated HIV clinic in the community for patients returning home from prison and jail. For over a decade, I have been continuously funded by the NIH, industry, and foundations for clinical research on HIV prevention and treatment for people involved in the criminal justice system, including those incarcerated in closed settings (jails and prisons) and in the community under supervision (probation and parole). I have served as an expert consultant on infectious diseases and women’s health in jails and prisons for the UN Office on Drugs and Crimes, the Federal Bureau of Prisons, and others. I also served as an expert health witness for the US Commission on Civil Rights Special Briefing on Women in Prison.
3. I have written and published extensively on the topics of infectious diseases among people involved in the criminal justice system including book chapters and articles in leading peer-reviewed journals (including Lancet HIV, JAMA Internal Medicine, American Journal of Public Health, International Journal of Drug Policy) on issues of prevention, diagnosis, and management of HIV, Hepatitis C, and other infectious diseases among people involved in the criminal justice system.
4. My C.V. includes a full list of my honors, experience, and publications, and it is attached as Exhibit A.
5. I am being paid $1,000 for my time reviewing materials and preparing this report.
6. I have not testified as an expert at trial or by deposition in the past four years.
II. Heightened Risk of Epidemics in Jails and Prisons
1

Case 2:2C0a-csve-110:2904-9c-vL-V0P18-M03J-HAKEHCFDNocou.m1-e3nt f4il2ed F0i4le/1d70/230/16/P20agePIDag.9e52 oPf a2g3e 3 of 24
7. The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected. There are several reasons this is the case, as delineated further below.
8. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. People often need to be transported to and from facilities to attend court and move between facilities. Prison health is public health.
9. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater. When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
10. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and staff.
11. Reduced prevention opportunities: During an infectious disease outbreak, people can protect themselves by washing hands. Jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcohol-based sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons because of a lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
12. Reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have
2

Case 2:2C0a-csve-110:2904-9c-vL-V0P18-M03J-HAKEHCFDNocou.m1-e3nt f4il2ed F0i4le/1d70/230/16/P20agePIDag.9e63 oPf a2g3e 4 of 24
access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and ill-equipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak.
13. Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.1 This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.
14. Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24-hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large outbreaks of infectious diseases. To prevent transmission of droplet-borne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes both containing the illness and caring for those who have become infected much more difficult.
15. Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, and medications.
16. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
17. Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited.
18. Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to
1 Active case finding for communicable diseases in prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
3

Case 2:2C0a-csve-110:2904-9c-vL-V0P18-M03J-HAKEHCFDNocou.m1-e3nt f4il2ed F0i4le/1d70/230/16/P20agePIDag.9e74 oPf a2g3e 5 of 24
work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public.
19. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.2 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.3 Even facilities on “quarantine” continued to accept new intakes, rendering the quarantine incomplete. These scenarios occurred in the “best case” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
III. Profile of COVID-19 as an Infectious Disease4
20. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but it is possible that people can transmit the virus before they start to show symptoms or for weeks after their symptoms resolve. In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for another year to the general public. Antiviral medications are currently in testing but not yet FDA-approved, so only available for compassionate use from the manufacturer. People in prison and jail will likely have even less access to these novel health strategies as they become available.
2 Influenza Outbreaks at Two Correctional Facilities — Maine, March 2011, Centers for Disease Control and Prevention (2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 3 David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-fluwidespread-in-prisons-and-jails-but-deaths-are-few/. 4 This whole section draws from Brooks J. Global Epidemiology and Prevention of COVID19, COVID-19 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virtual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www.ncchc.org/blog/covid-19-coronavirus-what-youneed-to-know-in-corrections.
4

Case 2:2C0a-csve-110:2904-9c-vL-V0P18-M03J-HAKEHCFDNocou.m1-e3nt f4il2ed F0i4le/1d70/230/16/P20agePIDag.9e85 oPf a2g3e 6 of 24
21. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.5 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.6 Death in COVID-19 infection is usually due to pneumonia and sepsis. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.
22. The care of people who are infected with COVID-19 depends on how seriously they are ill.7 People with mild symptoms may not require hospitalization but may continue to be closely monitored at home. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities.
23. COVID-19 prevention strategies include containment and mitigation. Containment requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. Jails and prisons are totally under-resourced to meet the demand for any of these strategies. As infectious diseases spread in the community, public health demands mitigation strategies, which involves social distancing and closing other communal spaces (schools, workplaces, etc.) to protect those most vulnerable to disease. Jails and prisons are unable to adequately provide social distancing or meet mitigation recommendations as described above.
24. The time to act is now. Data from other settings demonstrate what happens when jails and prisons are unprepared for COVID-19. News outlets reported that Iran temporarily released 70,000 prisoners when COVID-19 started to sweep its facilities.8 To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in
5 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease Control and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/summary.html. 6 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study. The Lancet (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext 7 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidancemanagement-patients.html. 8 Iran temporarily releases 70,000 prisoners as coronavirus cases surge, Reuters (March 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases70000-prisoners-as-coronavirus-cases-surge-idUSKBN20W1E5.
5

Case 2:2C0a-csve-110:2904-9c-vL-V0P18-M03J-HAKEHCFDNocou.m1-e3nt f4il2ed F0i4le/1d70/230/16/P20agePIDag.9e96 oPf a2g3e 7 of 24
place.9 Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and potentially transmit the virus to others.
IV. Risk of COVID-19 in ICE’s NYC-Area Detention Facilities
25. I have reviewed the following materials in making my assessment of the danger of COVID-19 in the Bergen, Essex, Hudson, and Orange County jails (“ICE’s NYC-area jails”): (1) a declaration by Marinda van Dalen, a Senior Attorney in the Health Justice Program at New York Lawyers for the Public Interest (NYLPI); (2) the report Detained and Denied: Healthcare Access in Immigration Detention, released by NYLPI in 2017; and (3) the report Ailing Justice: New Jersey, Inadequate Healthcare, Indifference, and Indefinite Confinement in Immigration Detention, released by Human Rights First in 2018.
26. Based on my review of these materials, my experience working on public health in jails and prisons, and my review of the relevant literature, it is my professional judgment that these facilities are dangerously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, which would result in severe harm to detained individuals, jail and prison staff, and the broader community. The reasons for this conclusion are detailed as follows.
27. The delays in access to care that already exist in normal circumstances will only become worse during an outbreak, making it especially difficult for the facilities to contain any infections and to treat those who are infected.
28. Failure to provide individuals with continuation of the treatment they were receiving in the community, or even just interruption of treatment, for chronic underlying health conditions will result in increased risk of morbidity and mortality related to these chronic conditions.
29. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected.
30. People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention. Failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by COVID-19 outbreaks, may result in poor health outcomes. Moreover, mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation.
9 Luke Barr & Christina Carrega, State prisons prepare for coronavirus but federal prisons not providing significant guidance, sources say, ABC News (March 11, 2020), https://abcnews.go.com/US/state-prisons-prepare-coronavirus-federal-prisons-providingsignificant/story?id=69433690.
6

Case 2:20C-acsve-110:92409-c-LvV-0P1-8M0J3H-AKEHCFDNooc.u1m-3entfi4le2d 0F4il/e1d7/0230/16P/2a0gePIDa.g1e007 ofP2a3ge 8 of 24
31. Failure to keep accurate and sufficient medical records will make it more difficult for the facilities to identify vulnerable individuals in order to both monitor their health and protect them from infection. Inadequate screening and testing procedures in facilities increase the widespread COVID-19 transmission.
32. Language barriers will similarly prevent the effective identification of individuals who are particularly vulnerable or may have symptoms of COVID-19. Similarly, the failure to provide necessary aids to individuals who have auditory or visual disabilities could also limit the ability to identify and monitor symptoms of COVID-19.
33. The commonplace neglect of individuals with acute pain and serious health needs under ordinary circumstances is also strongly indicative that the facilities will be ill-equipped to identify, monitor, and treat a COVID-19 epidemic.
34. The failure of these facilities to adequately manage single individuals in need of emergency care is a strong sign that they will be seriously ill-equipped and underprepared when a number of people will need urgent care simultaneously, as would occur during a COVID-19 epidemic.
35. For individuals in these facilities, the experience of an epidemic and the lack of care while effectively trapped can itself be traumatizing, compounding the trauma of incarceration.
V. Conclusion and Recommendations
36. For the reasons above, it is my professional judgment that individuals placed in ICE’s NYC-area jails are at a significantly higher risk of infection with COVID-19 as compared to the population in the community and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death.
37. Reducing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for those within those facilities and for the community at large.
38. As such, from a public health perspective, it is my strong opinion that individuals who can safely and appropriately remain in the community not be placed in ICE’s NYC-area jails at this time. I am also strongly of the opinion that individuals who are already in those facilities should be evaluated for release.
39. This is more important still for individuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune system, diabetes) or who are over the age of 60. They are in even greater danger in these facilities, including a meaningfully higher risk of death.
40. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in these facilities is a matter of days, not weeks. Once a case of
7

Case 2:20C-acsve-110:92409-c-LvV-0P1-8M0J3H-AKEHCFDNooc.u1m-3entfi4le2d 0F4il/e1d7/0230/16P/2a0gePIDa.g1e018 ofP2a3ge 9 of 24

COVID-19 identified in a facility, it will likely be too late to prevent a widespread outbreak.
41. Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.

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

March 1__5, 2020 New Haven, Connecticut

_______________________ Dr. Jaimie Meyer

8

Case 2:20C-cavs-e1019:2409-cLvV-P01-M80J3H-AKEHCF DNooc.u1m-3enftil4e2d 0F4i/l1e7d/2003/16P/2a0geIPDa.1g0e29 oPf a2g3e 10 of 24
EXHIBIT A

Case 2:20C-acsve-110:92409-c-LvV-0P1-8M0J3H-AKEHCFDNooc.u1m-3entfi4le2d 0F4il/e1d7/0230/16P/2a0gePIDa.g1e0310 oPfa2g3e 11 of 24
Jaimie Meyer, MD, MS, FACP

CURRICULUM VITAE

Date of Revision: Name: School:

November 20, 2019 Jaimie Meyer, MD, MS, FACP Yale School of Medicine

Education:
BA, Dartmouth College Anthropology 2000 MD, University of Connecticut School of Medicine 2005 MS, Yale School of Public Health Biostatistics and Epidemiology 2014

Career/Academic Appointments:
2005 - 2008 Residency, Internal Medicine, NY Presbyterian Hospital at Columbia, New York, NY 2008 - 2011 Fellowship, Infectious Diseases, Yale University School of Medicine, New Haven, CT 2008 - 2012 Clinical Fellow, Infectious Diseases, Yale School of Medicine, New Haven, CT 2010 - 2012 Fellowship, Interdisciplinary HIV Prevention, Center for Interdisciplinary Research on
AIDS, New Haven, CT 2012 - 2014 Instructor, AIDS, Yale School of Medicine, New Haven, CT 2014 - present Assistant Professor, AIDS, Yale School of Medicine, New Haven, CT 2015 - 2018 Assistant Clinical Professor, Nursing, Yale School of Medicine, New Haven, CT

Board Certification:
AB of Internal Medicine, Internal Medicine, 08-2008, 01-2019 AB of Internal Medicine, Infectious Disease, 10-2010 AB of Preventive Medicine, Addiction Medicine, 01-2018

Professional Honors & Recognition:

International/National/Regional

2018

NIH Center for Scientific Review, Selected as Early Career Reviewer

2017

Doris Duke Charitable Foundation, Doris Duke Charitable Foundation Scholar

2016

American College of Physicians, Fellow

2016

NIH Health Disparities, Loan Repayment Award Competitive Renewal

2016

AAMC, Early Career Women Faculty Professional Development Seminar

2014

NIH Health Disparities, Loan Repayment Program Award

2014

NIDA, Women & Sex/Gender Differences Junior Investigator Travel Award

2014

International Women's/Children's Health & Gender Working Group, Travel Award

2014

Patterson Trust, Awards Program in Clinical Research

2013

Connecticut Infectious Disease Society, Thornton Award for Clinical Research

2011

Bristol Myers-Squibb, Virology Fellows Award

1

Case 2:20C-acsve-110:92409-c-LvV-0P1-8M0J3H-AKEHCFDNooc.u1m-3entfi4le2d 0F4il/e1d7/0230/16P/2a0gePIDa.g1e0411 oPfa2g3e 12 of 24
Jaimie Meyer, MD, MS, FACP

2006 2005 2005 2000 2000

NY Columbia Presbyterian, John N. Loeb Intern Award American Medical Women’s Association, Medical Student Citation Connecticut State Medical Society, Medical Student Award Dartmouth College, Hannah Croasdale Senior Award Dartmouth College, Palaeopitus Senior Leadership Society Inductee

Yale University

2014

Women’s Faculty Forum, Public Voices Thought Leadership Program Fellow

Grants/Clinical Trials History:

Current Grants Agency: I.D.#: Title:
P.I.: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Center for Interdisciplinary Research on AIDS (CIRA) 2019-20 Pilot Project Awards Optimizing PrEP’s Potential in Non-Clinical Settings: Development and Evaluation of a PrEP Decision Aid for Women Seeking Domestic Violence Services Tiara Willie Principal Investigator 2% $29,993.00
$29,993.00 7/11/2019 - 7/10/2020

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

SAMHSA H79 TI080561 CHANGE: Comprehensive Housing and Addiction Management Network for Greater New Haven Principal Investigator 20% $389,054.00
$1,933,368.00 11/30/2018 - 11/29/2023

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project

Gilead Sciences, Inc. Investigator Sponsored Award, CO-US-276-D136 Delivering HIV Pre-Exposure Prophylaxis to Networks of Justice-Involved Women Principal Investigator 8% $81,151.00

2

Case 2:20C-acsve-110:92409-c-LvV-0P1-8M0J3H-AKEHCFDNooc.u1m-3entfi4le2d 0F4il/e1d7/0230/16P/2a0gePIDa.g1e0512 oPfa2g3e 13 of 24
Jaimie Meyer, MD, MS, FACP

period: Project period:

$306,199.00 6/19/2018 - 1/31/2020

Agency: I.D.#: Title: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIDA R21 DA042702 Prisons, Drug Injection and the HIV Risk Environment Principal Investigator 22% $129,673.00
$358,276.00 8/1/2017 - 7/31/2020

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Doris Duke Charitable Foundation Clinical Scientist Development Award Developing and Testing the Effect of a Patient-Centered HIV Prevention Decision Aid on PrEP uptake for Women with Substance Use in Treatment Settings Principal Investigator 27% $149,959.00
$493,965.00 7/1/2017 - 6/30/2020

Past Grants Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIDA K23 DA033858 Evaluating and Improving HIV Outcomes in Community-based Women who Interface with the Criminal Justice System Principal Investigator 75% $149,509.00
$821,147.00 7/1/2012 - 11/30/2017

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year:

Robert Leet & Clara Guthrie Patterson Trust R12225, Award in Clinical Research Disentangling the Effect of Gender on HIV Treatment and Criminal Justice Outcomes Principal Investigator 10% $75,000.00

3

Case 2:20C-acsve-110:92409-c-LvV-0P1-8M0J3H-AKEHCFDNooc.u1m-3entfi4le2d 0F4il/e1d7/0230/16P/2a0gePIDa.g1e0613 oPfa2g3e 14 of 24
Jaimie Meyer, MD, MS, FACP

Total costs for project

period:

$75,000.00

Project period:

1/31/2014 - 10/31/2015

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Bristol-Myers Squibb HIV Virology Fellowship Award Effect of newer antiretroviral regimens on HIV biological outcomes in HIVinfected prisoners: a 13 year retrospective evaluation Principal Investigator 10% $34,390.00
$34,390.00 12/1/2011 - 11/30/2012

Pending Grants Agency: I.D.#: Title:
P.I.: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIMH R01 MH121991 Identifying Modifiable Risk and Protective Processes at the Day-Level that Predict HIV Care Outcomes among Women Exposed to Partner Violence Sullivan, Tami Principal Investigator 30% $499,755.00
$4,148,823.00 1/1/2020 - 12/31/2024

Invited Speaking Engagements, Presentations, Symposia & Workshops Not Affiliated With Yale:
International/National 2019: CME Outfitters, Washington, DC. "A Grassroots Approach to Weed out HIV and HCV in Special
OUD Populations" 2019: US Commission on Civil Rights, Washington, DC. "An Analysis of Women’s Health, Personal
Dignity and Sexual Abuse in the US Prison System" 2018: College of Problems on Drug Dependence, College of Problems on Drug Dependence, San
Diego, CA. "Research on Women who Use Drugs: Knowledge and Implementation Gaps and A Proposed Research Agenda" 2018: Clinical Care Options, Washington, DC. "Intersection of the HIV and Opioid Epidemics" 2016: Dartmouth Geisel School of Medicine, Hanover, NH. "Incarceration as Opportunity: Prisoner Health and Health Interventions" 2010: Rhode Island Chapter of the Association of Nurses in AIDS Care, Providence, RI. "HIV and Addiction"

4

Case 2:20C-acsve-110:92409-c-LvV-0P1-8M0J3H-AKEHCFDNooc.u1m-3entfi4le2d 0F4il/e1d7/0230/16P/2a0gePIDa.g1e0714 oPfa2g3e 15 of 24
Jaimie Meyer, MD, MS, FACP
Regional 2018: Clinical Directors Network, New York, NY. "PrEP Awareness among Special Populations of
Women and People who Use Drugs" 2018: Frank H. Netter School of Medicine, Quinnipiac University, Hamden, CT. "HIV prevention for
justice-involved women" 2017: Clinical Directors Network, New York, NY. "Optimizing the HIV Care Continuum for People who
use Drugs" 2016: Frank H. Netter School of Medicine, Quinnipiac University, Hamden, CT. "Topics in Infectious
Diseases" 2016: Connecticut Advanced Practice Registered Nurse Society, Wethersfield, CT. "Trends in HIV
Prevention: Integration of Biomedical and Behavioral Approaches"
Peer-Reviewed Presentations & Symposia Given at Meetings Not Affiliated With Yale: International/National
2019: CPDD 81st Annual Scientific Meeting, CPDD, San Antonio, TX. "Punitive approaches to pregnant women with opioid use disorder: Impact on health care utilization, outcomes and ethical implications"
2019: 14th International Conference on HIV Treatment and Prevention Adherence, IAPAC Adherence, Miami, FL. "Decision-Making about HIV Prevention among Women in Drug Treatment: Is PrEP Contextually Relevant?"
2019: 2019 NIDA International Forum, NIDA, San Antonio, TX. "Diphenhydramine Injection in Kyrgyz Prisons: A Qualitative Study Of A High-Risk Behavior With Implications For Harm Reduction"
2019: 11th International Women’s and Children’s Health and Gender (InWomen’s) Group, InWomen’s Group, San Antonio, TX. "Uniquely successful implementation of methadone treatment in a women’s prison in Kyrgyzstan"
2019: Harm Reduction International, Porto, Porto District, Portugal. "How does methadone treatment travel? On the ‘becoming-methadone-body’ of Kyrgyzstan prisons"
2019: APA Collaborative Perspectives on Addiction Annual Meeting, APA Collaborative Perspectives on Addiction Annual Meeting, Providence, RI. "Impact of Trauma and Substance Abuse on HIV PrEP Outcomes among Women in Criminal Justice Systems. Symposium: “Partner Violence: Intersected with or Predictive of Substance Use and Health Problems among Women.”"
2019: Society for Academic Emergency Medicine (SAEM), Worcester, MA. "Effects of a Multisite Medical Home Intervention on Emergency Department Use among Unstably Housed People with Human Immunodeficiency Virus"
2019: Conference on Retroviruses and Opportunistic Infections (CROI), IAS, Seattle, WA. "Released to Die: Elevated Mortality in People with HIV after Incarceration"
2019: 12th Academic and Health Policy on Conference on Correctional Health, 12th Academic and Health Policy on Conference on Correctional Health, Las Vegas, NV. "PrEP Eligibility and HIV Risk Perception for Women across the Criminal Justice Continuum in Connecticut"
2019: Association for Justice-Involved Female Organizations (AJFO), Atlanta, GA. "Treatment of Women’s Substance Use Disorders and HIV Prevention During and Following Incarceration"
5

Case 2:20C-acsve-110:92409-c-LvV-0P1-8M0J3H-AKEHCFDNooc.u1m-3entfi4le2d 0F4il/e1d7/0230/16P/2a0gePIDa.g1e0815 oPfa2g3e 16 of 24
Jaimie Meyer, MD, MS, FACP

2018: 2018: 2018: 2018:
2018: 2018: 2018: 2017: 2017: 2017: 2017: 2017: 2017: 2016: 2015:

American Public Health Association (APHA) Annual Meeting, American Public Health Association (APHA) Annual Meeting, San Diego, CA. "New Haven Syringe Service Program: A model of integrated harm reduction and health care services" 12th National Harm Reduction Conference, 12th National Harm Reduction Conference, New Orleans, LA. "Service needs and access to care among participants in the New Haven Syringe Services Program" 22nd International AIDS Conference, 22nd International AIDS Conference, Amsterdam, NH, Netherlands. "HIV risk perceptions and risk reduction strategies among prisoners in Kyrgyzstan: a qualitative study" 22nd International AIDS Conference, 22nd International AIDS Conference, Amsterdam, NH, Netherlands. "Methadone Maintenance Therapy Uptake, Retention, and Linkage for People who Inject Drugs Transitioning From Prison to the Community in Kyrgyzstan: Evaluation of a National Program" NIDA International Forum, NIDA, San Diego, CA. "HIV and Drug Use among Women in Prison in Azerbaijan, Kyrgyzstan and Ukraine" 2018 Conference on Retroviruses and Opportunistic Infections (CROI), CROI, Boston, MA. "From prison’s gate to death’s door: Survival analysis of released prisoners with HIV" 11th Academic and Health Policy on Conference on Correctional Health, Academic Consortium on Criminal Justice Health, Houston, TX. "Assessing Concurrent Validity of Criminogenic and Health Risk Instruments among Women on Probation in Connecticut" IDWeek: Annual Meeting of Infectious Diseases Society of America, Infectious Diseases Society of America, San Diego, CA. "Predictors of Linkage to and Retention in HIV Care Following Release from Connecticut, USA Jails and Prisons (Oral presentation)" International AIDS Society (IAS) Meeting, International AIDS Society, Paris, Île-de-France, France. "Late breaker: Predictors of Linkage to and Retention in HIV Care Following Release from Connecticut, USA Jails and Prisons" NIDA International Forum, NIDA, Montreal, QC, Canada. "A Mixed Methods Evaluation of HIV Risk among Women with Opioid Dependence in Ukraine" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Montreal, QC, Canada. "Assessing Receptiveness to and Eligibility for PrEP in Criminal Justice-Involved Women" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Montreal, QC, Canada. "A Mixed Methods Evaluation of HIV Risk among Women with Opioid Dependence in Ukraine" Annual Meeting of the Society for Applied Anthropology, Society for Applied Anthropology, Santa Fe, NM. "Where rubbers meet the road: HIV risk reduction for women on probation (Oral presentation)" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Palm Springs, CA. "An Event-level Examination of Successful Condom Negotiation Strategies among College Women" CDC National HIV Prevention Conference, CDC, Atlanta, GA. "Beyond the Syndemic: Condom Negotiation and Use among Women Experiencing Partner Violence (Oral presentation)"

6

Case 2:20C-acsve-110:92409-c-LvV-0P1-8M0J3H-AKEHCFDNooc.u1m-3entfi4le2d 0F4il/e1d7/0230/16P/2a0gePIDa.g1e0916 oPfa2g3e 17 of 24
Jaimie Meyer, MD, MS, FACP

2015: 2015: 2014: 2014: 2014: 2013: 2013: 2012: 2012: 2012: 2011:

International Harm Reduction Conference, International Harm Reduction, Kuala Lumpur, Federal Territory of Kuala Lumpur, Malaysia. "Evidence-Based Interventions to Enhance Assessment, Treatment, and Adherence in the Chronic Hepatitis C Care Continuum" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Phoenix, AZ. "Violence, Substance Use, and Sexual Risk among College Women" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, San Juan, San Juan, Puerto Rico. "Gender Differences in HIV and Criminal Justice Outcomes" College on Problems in Drug Dependence (CPDD), College on Problems in Drug Dependence (CPDD), San Juan, San Juan, Puerto Rico. "Gender Differences in HIV and Criminal Justice Outcomes" Conference on Retroviruses and Opportunistic Infections (CROI), Conference on Retroviruses and Opportunistic Infections (CROI), Boston, MA. "Longitudinal Treatment Outcomes in HIVInfected Prisoners and Influence of Re-Incarceration" HIV Intervention and Implementation Science Meeting, HIV Intervention and Implementation Science Meeting, Bethesda, MD. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" Conference on Retroviruses and Opportunistic Infections (CROI), Conference on Retroviruses and Opportunistic Infections (CROI), Atlanta, GA. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" IDWeek: Infectious Diseases Society of America Annual Meeting, Infectious Diseases Society of America, San Diego, CA. "Correlates of Retention in HIV Care after Release from Jail: Results from a Multi-site Study" IDWeek: Infectious Diseases Society of America Annual Meeting, Infectious Diseases Society of America, San Diego, CA. "Frequent Emergency Department Use among Released Prisoners with HIV: Characterization Including a Novel Multimorbidity Index" 5th Academic and Health Policy Conference on Correctional Health, 5th Academic and Health Policy Conference on Correctional Health, Atlanta, GA. "Effects of Intimate Partner Violence on HIV and Substance Abuse in Released Jail Detainees" IAPAC HIV Treatment and Adherence Conference, IAPAC, Miami, FL. "Adherence to HIV treatment and care among previously homeless jail detainees"

Regional 2019: Connecticut Infectious Disease Society, New Haven, CT. "Preliminary Findings from a Novel
PrEP Demonstration Project for Women Involved in Criminal Justice Systems and Members of their Risk Networks" 2017: Connecticut Public Health Association Annual Conference, Connecticut Public Health Association, Farmington, CT. "The New Haven syringe services program" 2014: Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Longitudinal Treatment Outcomes in HIV-Infected Prisoners and Influence of ReIncarceration"

7

Case 2:20C-acsve-110:92409-c-LvV-0P1-8M0J3H-AKEHCFDNooc.u1m-3entfi4le2d 0F4il/e1d7/0230/16P/2a0gePIDa.g1e1017 oPfa2g3e 18 of 24
Jaimie Meyer, MD, MS, FACP

2013: 2011:

Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Emergency Department Use by Released Prisoners with HIV"

Professional Service:
Peer Review Groups/Grant Study Sections 2019 - present Reviewer, NIDA, NIH Reviewer: RFA-DA-19-025: HEAL Initiative: Justice Community
Opioid Innovation Network (JCOIN) Clinical Research Centers 2019 - present Reviewer, Yale DCFAR Pilot Projects 2018 - present Reviewer, Center for Interdisciplinary Research on AIDS (CIRA) 2015 - present Reviewer, University of Wisconsin-Milwaukee Research Growth Initiative

Advisory Boards

2017

Advisor, HIV Prevention and Treatment in Cis-Gendered Women, Gilead Sciences, Inc.

Journal Service
Editor/Associate Editor 2019 - present Associate Editor, Journal of the International Association of Providers of AIDS Care
(JIAPAC), Section Editor: Sex and Gender Issues

Reviewer 2019 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present

Reviewer, JAIDS Reviewer, Addiction Sci and Clin Pract Reviewer, Addictive Behav Reports Reviewer, AIDS Care Reviewer, Social Science and Medicine Reviewer, SpringerPlus Reviewer, Substance Abuse Treatment Prevention and Policy Reviewer, Women’s Health Issues Reviewer, Yale Journal of Biology and Medicine Reviewer, AIMS Public Health Reviewer, American Journal on Addictions Reviewer, American Journal of Epidemiology Reviewer, American Journal of Public Health Reviewer, Annals Internal Medicine Reviewer, BMC Emergency Medicine Reviewer, BMC Infectious Diseases Reviewer, BMC Public Health Reviewer, BMC Women’s Health

8

Case 2:20C-acsve-110:92409-c-LvV-0P1-8M0J3H-AKEHCFDNooc.u1m-3entfi4le2d 0F4il/e1d7/0230/16P/2a0gePIDa.g1e1118 oPfa2g3e 19 of 24
Jaimie Meyer, MD, MS, FACP

2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present

Reviewer, Clinical Infectious Diseases Reviewer, Critical Public Health Reviewer, Drug and Alcohol Dependence Reviewer, Drug and Alcohol Review Reviewer, Epidemiologic Reviews Reviewer, Eurosurveillance Reviewer, Health and Justice (Springer Open) Reviewer, International Journal of Drug Policy Reviewer, International Journal of Prisoner Health Reviewer, International Journal of STDs and AIDS Reviewer, International Journal of Women’s Health Reviewer, JAMA Internal Medicine Reviewer, Journal of Family Violence Reviewer, Journal of General Internal Medicine Reviewer, Journal of Immigrant and Minority Health Reviewer, Journal of International AIDS Society Reviewer, Journal of Psychoactive Drugs Reviewer, Journal of Urban Health Reviewer, Journal of Women’s Health Reviewer, Open Forum Infectious Diseases Reviewer, PLoS ONE Reviewer, Public Health Reports

Professional Service for Professional Organizations
AAMC Group on Women in Medicine and Science (GWIMS) 2016 - present Member, AAMC Group on Women in Medicine and Science (GWIMS)

American College of Physicians 2016 - present Fellow, American College of Physicians 2013 - 2016 Member, American College of Physicians

American Medical Association 2005 - present Member, American Medical Association

American Medical Women’s Association 2011 - present Member, American Medical Women’s Association

American Society of Addiction Medicine 2009 - present Member, American Society of Addiction Medicine

9

Case 2:20C-acsve-110:92409-c-LvV-0P1-8M0J3H-AKEHCFDNooc.u1m-3entfi4le2d 0F4il/e1d7/0230/16P/2a0gePIDa.g1e1219 oPfa2g3e 20 of 24
Jaimie Meyer, MD, MS, FACP

Connecticut Infectious Disease Society 2011 - present Member, Connecticut Infectious Disease Society

Infectious Disease Society of America 2008 - present Member, Infectious Disease Society of America

InWomen’s Network, NIDA International Program 2013 - present Member, InWomen’s Network, NIDA International Program

New York State Medical Society 2005 - 2008 Member, New York State Medical Society

Yale University Service University Committees 2016 - 2018 Council Member, Leadership Council, Women’s Faculty Forum

Medical School Committees 2015 - 2016 Committee Member, US Health and Justice Course, Yale School of Medicine 2014 - present Committee Member, Yale Internal Medicine Traditional Residency Intern Selection
Committee

Public Service 2019 - present 2017 - present 2013 - present 2012 - present 2009 - 2011 2002 1998 - 1999

Faculty Member, Yale University Program in Addiction Medicine Faculty Member, Arthur Liman Center for Public Interest Law, Yale Law School Mentor, Women in Medicine at Yale Mentoring Program Faculty Member, Yale Center for Interdisciplinary Research on AIDS Instructor, Preclinical Clerkship Tutor, Yale School of Medicine Fellow, Soros Open Society Institute Fellow, Costa Rican Humanitarian Foundation

Bibliography:
Peer-Reviewed Original Research 1. Meyer JP, Qiu J, Chen NE, Larkin GL, Altice FL. Emergency department use by released prisoners
with HIV: an observational longitudinal study. PloS One 2012, 7:e42416. 2. Chen NE, Meyer JP, Bollinger R, Page KR. HIV testing behaviors among Latinos in Baltimore City.
Journal Of Immigrant And Minority Health / Center For Minority Public Health 2012, 14:540-51. 3. Chitsaz E, Meyer JP, Krishnan A, Springer SA, Marcus R, Zaller N, Jordan AO, Lincoln T, Flanigan TP,
Porterfield J, Altice FL. Contribution of substance use disorders on HIV treatment outcomes and antiretroviral medication adherence among HIV-infected persons entering jail. AIDS And Behavior 2013, 17 Suppl 2:S118-27.

10

Case 2:20C-acsve-110:92409-c-LvV-0P1-8M0J3H-AKEHCFDNooc.u1m-3entfi4le2d 0F4il/e1d7/0230/16P/2a0gePIDa.g1e1320 oPfa2g3e 21 of 24
Jaimie Meyer, MD, MS, FACP
4. Chen NE, Meyer JP, Avery AK, Draine J, Flanigan TP, Lincoln T, Spaulding AC, Springer SA, Altice FL. Adherence to HIV treatment and care among previously homeless jail detainees. AIDS And Behavior 2013, 17:2654-66.
5. Althoff AL, Zelenev A, Meyer JP, Fu J, Brown SE, Vagenas P, Avery AK, Cruzado-Quiñones J, Spaulding AC, Altice FL. Correlates of retention in HIV care after release from jail: results from a multi-site study. AIDS And Behavior 2013, 17 Suppl 2:S156-70.
6. Williams CT, Kim S, Meyer J, Spaulding A, Teixeira P, Avery A, Moore K, Altice F, Murphy-Swallow D, Simon D, Wickersham J, Ouellet LJ. Gender differences in baseline health, needs at release, and predictors of care engagement among HIV-positive clients leaving jail. AIDS And Behavior 2013, 17 Suppl 2:S195-202.
7. Meyer JP, Wickersham JA, Fu JJ, Brown SE, Sullivan TP, Springer SA, Altice FL. Partner violence and health among HIV-infected jail detainees. International Journal Of Prisoner Health 2013, 9:124-41.
8. Meyer JP, Qiu J, Chen NE, Larkin GL, Altice FL. Frequent emergency department use among released prisoners with human immunodeficiency virus: characterization including a novel multimorbidity index. Academic Emergency Medicine : Official Journal Of The Society For Academic Emergency Medicine 2013, 20:79-88.
9. Meyer JP, Cepeda J, Springer SA, Wu J, Trestman RL, Altice FL. HIV in people reincarcerated in Connecticut prisons and jails: an observational cohort study. The Lancet. HIV 2014, 1:e77-e84.
10. Meyer JP, Zelenev A, Wickersham JA, Williams CT, Teixeira PA, Altice FL. Gender disparities in HIV treatment outcomes following release from jail: results from a multicenter study. American Journal Of Public Health 2014, 104:434-41.
11. Meyer JP, Cepeda J, Wu J, Trestman RL, Altice FL, Springer SA. Optimization of human immunodeficiency virus treatment during incarceration: viral suppression at the prison gate. JAMA Internal Medicine 2014, 174:721-9.
12. Meyer JP, Cepeda J, Taxman FS, Altice FL. Sex-Related Disparities in Criminal Justice and HIV Treatment Outcomes: A Retrospective Cohort Study of HIV-Infected Inmates. American Journal Of Public Health 2015, 105:1901-10.
13. Boyd AT, Song DL, Meyer JP, Altice FL. Emergency department use among HIV-infected released jail detainees. Journal Of Urban Health : Bulletin Of The New York Academy Of Medicine 2015, 92:10835.
14. Shrestha R, Karki P, Altice FL, Huedo-Medina TB, Meyer JP, Madden L, Copenhaver M. Correlates of willingness to initiate pre-exposure prophylaxis and anticipation of practicing safer drug- and sexrelated behaviors among high-risk drug users on methadone treatment. Drug And Alcohol Dependence 2017, 173:107-116.
15. Peasant C, Sullivan TP, Weiss NH, Martinez I, Meyer JP. Beyond the syndemic: condom negotiation and use among women experiencing partner violence. AIDS Care 2017, 29:516-523.
16. Wickersham JA, Gibson BA, Bazazi AR, Pillai V, Pedersen CJ, Meyer JP, El-Bassel N, Mayer KH, Kamarulzaman A, Altice FL. Prevalence of Human Immunodeficiency Virus and Sexually Transmitted Infections Among Cisgender and Transgender Women Sex Workers in Greater Kuala Lumpur, Malaysia: Results From a Respondent-Driven Sampling Study. Sexually Transmitted Diseases 2017, 44:663-670.
17. Hoff E, Marcus R, Bojko MJ, Makarenko I, Mazhnaya A, Altice FL, Meyer JP. The effects of opioidagonist treatments on HIV risk and social stability: A mixed methods study of women with opioid use disorder in Ukraine. Journal Of Substance Abuse Treatment 2017, 83:36-44.
11

Case 2:20C-acsve-110:92409-c-LvV-0P1-8M0J3H-AKEHCFDNooc.u1m-3entfi4le2d 0F4il/e1d7/0230/16P/2a0gePIDa.g1e1421 oPfa2g3e 22 of 24
Jaimie Meyer, MD, MS, FACP
18. Rutledge R, Madden L, Ogbuagu O, Meyer JP. HIV Risk perception and eligibility for pre-exposure prophylaxis in women involved in the criminal justice system. AIDS Care 2018, 30:1282-1289.
19. Peasant C, Sullivan TP, Ritchwood TD, Parra GR, Weiss NH, Meyer JP, Murphy JG. Words can hurt: The effects of physical and psychological partner violence on condom negotiation and condom use among young women. Women & Health 2018, 58:483-497.
20. Loeliger KB, Altice FL, Desai MM, Ciarleglio MM, Gallagher C, Meyer JP. Predictors of linkage to HIV care and viral suppression after release from jails and prisons: a retrospective cohort study. The Lancet. HIV 2018, 5:e96-e106.
21. Odio CD, Carroll M, Glass S, Bauman A, Taxman FS, Meyer JP. Evaluating concurrent validity of criminal justice and clinical assessments among women on probation. Health & Justice 2018, 6:7.
22. Loeliger KB, Altice FL, Ciarleglio MM, Rich KM, Chandra DK, Gallagher C, Desai MM, Meyer JP. Allcause mortality among people with HIV released from an integrated system of jails and prisons in Connecticut, USA, 2007-14: a retrospective observational cohort study. The Lancet. HIV 2018, 5:e617-e628.
23. Loeliger KB, Meyer JP, Desai MM, Ciarleglio MM, Gallagher C, Altice FL. Retention in HIV care during the 3 years following release from incarceration: A cohort study. PLoS Medicine 2018, 15:e1002667.
24. Azbel L, Wegman MP, Polonsky M, Bachireddy C, Meyer J, Shumskaya N, Kurmanalieva A, Dvoryak S, Altice FL. Drug injection within prison in Kyrgyzstan: elevated HIV risk and implications for scaling up opioid agonist treatments. International Journal Of Prisoner Health 2018, 14:175-187.
25. Peasant C, Montanaro EA, Kershaw TS, Parra GR, Weiss NH, Meyer JP, Murphy JG, Ritchwood TD, Sullivan TP. An event-level examination of successful condom negotiation strategies among young women. Journal Of Health Psychology 2019, 24:898-908.
26. Ranjit YS, Azbel L, Krishnan A, Altice FL, Meyer JP. Evaluation of HIV risk and outcomes in a nationally representative sample of incarcerated women in Azerbaijan, Kyrgyzstan, and Ukraine. AIDS Care 2019, 31:793-797.
27. Rhodes T, Azbel L, Lancaster K, Meyer J. The becoming-methadone-body: on the onto-politics of health intervention translations. Sociology Of Health & Illness 2019, 41:1618-1636.
28. Olson B, Vincent W, Meyer JP, Kershaw T, Sikkema KJ, Heckman TG, Hansen NB. Depressive symptoms, physical symptoms, and health-related quality of life among older adults with HIV. Quality Of Life Research : An International Journal Of Quality Of Life Aspects Of Treatment, Care And Rehabilitation 2019.
Chapters, Books, and Reviews 29. Azar MM, Springer SA, Meyer JP, Altice FL. A systematic review of the impact of alcohol use
disorders on HIV treatment outcomes, adherence to antiretroviral therapy and health care utilization. Drug And Alcohol Dependence 2010, 112:178-93. 30. Meyer JP, Springer SA, Altice FL. Substance abuse, violence, and HIV in women: a literature review of the syndemic. Journal Of Women's Health (2002) 2011, 20:991-1006. 31. Meyer JP, Chen NE, Springer SA. HIV Treatment in the Criminal Justice System: Critical Knowledge and Intervention Gaps. AIDS Research And Treatment 2011, 2011:680617. 32. Springer SA, Spaulding AC, Meyer JP, Altice FL. Public health implications for adequate transitional care for HIV-infected prisoners: five essential components. Clinical Infectious Diseases : An Official Publication Of The Infectious Diseases Society Of America 2011, 53:469-79.
12

Case 2:20C-acsve-110:92409-c-LvV-0P1-8M0J3H-AKEHCFDNooc.u1m-3entfi4le2d 0F4il/e1d7/0230/16P/2a0gePIDa.g1e1522 oPfa2g3e 23 of 24
Jaimie Meyer, MD, MS, FACP
33. Chen NE, Meyer JP, Springer SA. Advances in the prevention of heterosexual transmission of HIV/AIDS among women in the United States. Infectious Disease Reports 2011, 3.
34. Meyer J, Altice F. HIV in Injection and Other Drug Users. Somesh Gupta, Bhushan Kumar, eds. Sexually Transmitted Infections 2nd ed. New Delhi, India: Elsevier, 2012: 1061-80. ISBN 978-81312-2809-8.
35. Meyer JP, Althoff AL, Altice FL. Optimizing care for HIV-infected people who use drugs: evidencebased approaches to overcoming healthcare disparities. Clinical Infectious Diseases : An Official Publication Of The Infectious Diseases Society Of America 2013, 57:1309-17.
36. Meyer J, Altice F. Chapter 47, Treatment of Addictions: Transition to the Community. Robert L. Trestman, Kenneth L. Appelbaum, Jeffrey L. Metzner, eds. Oxford Textbook of Correctional Psychiatry (Winner of the 2016 Guttmacher Award). Oxford University Press 2015. ISBN 9780199360574.
37. Meyer JP, Moghimi Y, Marcus R, Lim JK, Litwin AH, Altice FL. Evidence-based interventions to enhance assessment, treatment, and adherence in the chronic Hepatitis C care continuum. The International Journal On Drug Policy 2015, 26:922-35.
38. Mohareb A, Tiberio P, Mandimika C, Muthulingam D, Meyer J. Infectious Diseases in Underserved Populations. Onyema Ogbuagu, Gerald Friedland, Merceditas Villanueva, Marjorie Golden, eds. Current Diagnosis and Treatment- Infectious Diseases. McGraw-Hill Medical 2016.
39. Meyer JP, Womack JA, Gibson B. Beyond the Pap Smear: Gender-responsive HIV Care for Women. The Yale Journal Of Biology And Medicine 2016, 89:193-203.
40. Meyer JP, Muthulingam D, El-Bassel N, Altice FL. Leveraging the U.S. Criminal Justice System to Access Women for HIV Interventions. AIDS And Behavior 2017, 21:3527-3548.
41. Shrestha R, McCoy-Redd B, Meyer J. Pre-Exposure Prophylaxis (PrEP) for People Who Inject Drugs (PWID). Brianna Norton, Ed. The Opioid Epidemic and Infectious Diseases. Elsevier 2019.
42. Meyer JP, Isaacs K, El-Shahawy O, Burlew AK, Wechsberg W. Research on women with substance use disorders: Reviewing progress and developing a research and implementation roadmap. Drug And Alcohol Dependence 2019, 197:158-163.
Peer-Reviewed Educational Materials 43. The Fortune Society Reentry Education Project Detailing Kit. New York City Department of Health
and Mental Hygiene. October 2014 44. United Nations Office on Drugs and Crime. Vienna, Austria
Invited Editorials and Commentaries 45. Meyer JP. Capsule Commentary on Pyra et al., sexual minority status and violence among HIV
infected and at-risk women. Journal Of General Internal Medicine 2014, 29:1164. 46. Brinkley-Rubinstein L, Dauria E, Tolou-Shams M, Christopoulos K, Chan PA, Beckwith CG, Parker S,
Meyer J. The Path to Implementation of HIV Pre-exposure Prophylaxis for People Involved in Criminal Justice Systems. Current HIV/AIDS Reports 2018, 15:93-95. 47. Meyer JP. The Sustained Harmful Health Effects of Incarceration for Women Living with HIV. Journal Of Women's Health (2002) 2019, 28:1017-1018.
13

Case 2:20C-acsve-110:92409-c-LvV-0P1-8M0J3H-AKEHCFDNooc.u1m-3entfi4le2d 0F4il/e1d7/0230/16P/2a0gePIDa.g1e1623 oPfa2g3e 24 of 24
Jaimie Meyer, MD, MS, FACP
Case Reports, Technical Notes, Letters 48. Paul J. Bullous pemphigoid in a patient with psoriasis and possible drug reaction: a case report.
Connecticut Medicine 2004, 68:611-5. 49. How J, Azar MM, Meyer JP. Are Nectarines to Blame? A Case Report and Literature Review of
Spontaneous Bacterial Peritonitis Due to Listeria monocytogenes. Connecticut Medicine 2015, 79:31-6. 50. Vazquez Guillamet LJ, Malinis MF, Meyer JP. Emerging role of Actinomyces meyeri in brain abscesses: A case report and literature review. IDCases 2017, 10:26-29. 51. Harada K, Heaton H, Chen J, Vazquez M, Meyer J. Zoster vaccine-associated primary varicella infection in an immunocompetent host. BMJ Case Reports 2017, 2017. 52. Bernardo R, Streiter S, Tiberio P, Rodwin BA, Mohareb A, Ogbuagu O, Emu B, Meyer JP. Answer to December 2017 Photo Quiz. Journal Of Clinical Microbiology 2017, 55:3568. 53. Bernardo R, Streiter S, Tiberio P, Rodwin BA, Mohareb A, Ogbuagu O, Emu B, Meyer JP. Photo Quiz: Peripheral Blood Smear in a Ugandan Refugee. Journal Of Clinical Microbiology 2017, 55:33133314. Scholarship In Press 54. Hoff E, Adams Z, Dasgupta A, Goddard D, Sheth S, Meyer J. Reproductive Health Justice and Autonomy: A systematic review of pregnancy planning intentions, needs, and interventions among women involved in US criminal justice systems. J Women’s Health
14

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.117 Page 1 of 30
Exhibit 3

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.118 Page 2 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

)

RUSSELL, et al.

)

)

Plaintiffs,

)

)

Case No. 4:19-cv-00226

v.

)

(Class Action)

)

The Honorable Lee H. Rosenthal

HARRIS COUNTY, TEXAS, et al.

)

U.S. District Judge

)

Defendants.

)

)

Declaration of Dr. Chiao
I. Background and Qualifications
1. I am Dr. Elizabeth Chiao, Professor of Medicine, Division of Infectious Diseases and Health Services, Research, Baylor College of Medicine. I am board certified by the American Board of Internal Medicine (ABIM) in Medical Oncology and Infectious Diseases. I am licensed to practice medicine in the state of Texas, license number L8647. I earned my Doctor of Medicine from Cornell University Medical College, and Master Degree in Public Health from Yale University School of Medicine, Department of Epidemiology and Public Health. I completed my residency at the University of Utah, and completed Fellowships in Medical Oncology at Memorial Sloan Kettering, and in Infectious Diseases at Baylor College of Medicine.
2. I have worked for the past 14 years as Faculty in the Division of Infectious Diseases and Health Services Research at Baylor College of Medicine. My research interests focus on the epidemiology, prevention, treatment and outcomes of HIV-related comorbidities and Cancers, as well as health disparities for people living with HIV.
3. In the past 14 years I have received continuous funding by the National Institutes of Health (NIH) starting with an NCI funded K23 (K23 CA124318) in 2006. I subsequently received an NCI funded R01 (R01CA163103) entitled “The Effectiveness of Screening HIV-infected Women for Anal Cancer Precursors,” and a second R01 (R01CA206476) “(PQ 3) Identifying Novel Pharmacologic Risk factors for Common Non-AIDS Defining Cancers in Individuals with Well-controlled HIV Infection.” I am additionally a co-investigator on multiple national NIH funded projects. I also hold several leadership positions in the AIDS Malignancy Consortium (AMC): I am 1) the Baylor College of Medicine principal investigator for the AMC, 2) the co-chair of AMC 087: a phase 1 protocol of Cabozantinib for the treatment of advanced solid tumors in HIV-infected individuals (currently enrolling), and 3) the
1

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.119 Page 3 of 30
chair of the Solid Tumor Working Group in the AMC. Furthermore, I collaborate with U.S.-based and international researchers and I have been appointed to several national and international committees including the Board of Scientific Advisers subcommittee for HIV-related malignancies, scientific merit review committees for South Africa and the organizing committee for the International HIV Malignancy Conference. My clinical work as the clinical director of both the Anal Dysplasia and Medical Oncology clinics at the Thomas Street Health Center were recognized with a Baylor Clinician STAR award in 2017. Finally, I lead an active mentoring program where several mentees have successfully applied for and obtained career development awards and other various research funding. In summary, I am a clinician researcher whose goals are to improve survival and quality of life for people living with HIV (HIV), and individuals with virally mediated cancer by improving cancer prevention, screening and treatment outcomes.
4. I have written and published extensively on the topics of infectious diseases, and the epidemiology of people living with HIV (PLWH), including papers about PLWH involved in the criminal justice system. In particular, I have published in leading peer-reviewed journals on the health disparities and the ethical medical care for PLWH for people in detention; disparities in the outcomes of AIDS-related Kaposi Sarcoma; and how to improve screening for Human Papillomavirus-related cancers in PLWH to take just three examples.
5. My C.V. includes a full list of my honors, experience, and publications, and it is attached as Exhibit A.
6. I am donating my time reviewing materials and preparing this report. Any live testimony I provide will also be provided pro bono.
7. I have not testified as an expert at trial or by deposition in the past four years.
8. This declaration is substantially the same as a sworn declaration submitted by Dr. Jaimie Meyer, Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut, in federal court in New York. CITE. Dr. Meyer is board certified in Internal Medicine, Infectious Diseases and Addiction Medicine.
9. I have reviewed thoroughly Dr. Meyer’s report, and the sources cited in it. Based on my own independent training, expertise, and experience in epidemiology and infectious diseases, I fully agree with Dr. Meyer’s analysis of the dangers that the novel corona posed in New York City-area jails, and believe that they are applicable, as described below, to the Harris County jail.
II. Heightened Risk of Epidemics in Jails and Prisons
10. The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to
2

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.120 Page 4 of 30
individuals who become infected. There are several reasons this is the case, as delineated further below.
11. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. People often need to be transported to and from facilities to attend court and move between facilities. Prison health is public health.
12. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater. When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
13. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and staff.
14. Reduced prevention opportunities: During an infectious disease outbreak, people can protect themselves by washing hands. Jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcoholbased sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons because of a lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
3

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.121 Page 5 of 30
15. Reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and illequipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak.
16. Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.1 This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.
17. Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24-hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large outbreaks of infectious diseases. To prevent transmission of dropletborne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes both containing the illness and caring for those who have become infected much more difficult.
18. Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, and medications.
19. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
20. Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the
1 Active case finding for communicable diseases in prison, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
4

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.122 Page 6 of 30
care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited.
21. Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public. Furthermore, rapid spread of infectious diseases among the inmates can often worsen the epidemic outside of the incarcerated population because staff are more likely to be infected and spread the disease to their families and the wider population.
22. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.2 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.3 Even facilities on “quarantine” continued to accept new intakes, rendering the quarantine incomplete. These scenarios occurred in the “best case” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
III. Profile of COVID-19 as an Infectious Disease4
23. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but recent data from China has demonstrated that almost 13% of transmission occurs from asymptomatic individuals before they start to show symptoms, and it is possible that transmission can occur for weeks after their symptoms resolve.5 In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. Not only is the
2 Influenza Outbreaks at Two Correctional Facilities—Maine, March 2011, Centers for Disease Control and Prevention (2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3 htm. 3 David. M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-flu-widespread-in-prisons-and-jails-but-deathsare-few/. 4 This whole section draws from Broks J. Global Epidemiology and Prevention of COVID19, COVID-10 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www ncchc.org/blog/covid-19-coronavirus-what-you-need-toknow-in-corrections. 5 Du Z, Xu X, Wu Y, Wang L, Cowling BJ, Ancel Meyers L. Serial interval of COVID-19 among publicly reported confirmed cases. Emerg Infect Dis. 2020 Jun [date cited]. https://doi.org/10.3201/eid2606.200357
5

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.123 Page 7 of 30
virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for over a year to the general public. Antiviral medications are currently in testing but not yet FDA-approved. People in prison and jail will likely have even less access to these novel health strategies as they become available.
24. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.6 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.7 Among those individuals, the risk of poor outcomes, included the need for mechanical intervention is over 20%. Death in COVID-19 infection is usually due to pneumonia, and sepsis, and would occur between approximately 1-4% of the popultion. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.
25. The care of people who are infected with COVID-19 depends on how seriously they are ill.8 People with mild symptoms may not require hospitalization but may continue to be closely monitored at home. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID19 becomes more widespread in communities.
26. In order to prevent overwhelming the local health systems, aggressive containment and COVD-19 prevention is of utmost importance. To this end, certain states and jurisdictions, including Harris County have mandated COVID-19 prevention strategies, such as “shelter in place” or “stay at home”, which have gone beyond containment and mitigation. Jails and prisons already have difficulty with containment because it requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. However, even with these efforts, it is nearly impossible for
6 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/summary.html?CDC AA refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fsummary.html. 7 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study, The Lancel (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext. 8 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2002), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html.
6

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.124 Page 8 of 30
jails and prisons to provide the atmosphere of “shelter in place” or “stay at home” social distancing, given the number of individuals that work in and are housed in these facilities in the current system. Decreasing the population will help the prison facilities to develop “isolation” strategies that can nearly mirror Harris County mandates.
27. The time to act is now. Data from other settings demonstrate what happens when jails and prisons are unprepared for COVID-19. News outlets reported that Iran temporarily released 70,000 prisoners when COVID-19 started to sweep its facilities.9 To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in place.10 Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and potentially transmit the virus to others.
IV. Risk of COVID-19 in the Harris County Jail
28. In preparing this report I have spoken with Dr. Marc Robinson, who has worked as a physician in the medical clinic in the jail and therefore has first-hand knowledge of the medical facilities and jail conditions in the Harris County Jail. Based on my conversation with Dr. Robinson, I understand that the medical facilities in the jail are rudimentary and are not equipped to care for anyone with an acute illness. The Harris County Jail cannot do anything other than administer oxygen, and supplies are limited. Thus, anyone whose symptoms are more severe than mild would be sent to the local hospital. This would cause significant strain on both the local hospital and jail/prison staff. Because people wait for administrative disposition, and are housed/ live in close quarters, and because of the number of people detained of the Harris County Jail, it is impossible for inmates to comply with local health mandates and CDC recommendations, including social distancing. Moreover, because hundreds of people cycle in and out of the jail every day, it is virtually impossible to create stable units of people isolating those infected with those who are uninfected, which is necessary to contain infection.
29. Based on my conversations with Ms. Sarah Wood, Policy Director for the Harris County Office of the Public Defender, and Dr. Robinson, my experience working on public health and Infectious Diseases, and my review of the relevant literature, it is my professional judgment that the Harris County Jail is dangerously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, which would result in severe harm to detained individuals, jail and prison staff, and the broader community. The reasons for this conclusion are detailed as follows.
9 Iran temporarily releases 70,000 prisoners as coronavirus cases surge, Reuters (March 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases-70000-prisoners-ascoronavirus-cases-surge-idUSKBN20W1E5. 10 Luke Barr & Christina Carrega, State prisons prepare for coronavirus but federal prisons not providing significant guidance, sources say, ABC News (March 11, 2020), https://abcnews.go.com/US/state-prisons-preparecoronavirus-federal-prisons-providing-significant/story?id=69433690.
7

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.125 Page 9 of 30
30. Above and beyond the inability to prevent the spread of COVID-19 and increased risk for severe illness and inability to care for inmates in jail and prisons, the delays in access to care that already exist in normal circumstances will only become worse during an outbreak, making it especially difficult for the facilities to contain any infections and to treat those who are infected.
31. Failure to provide individuals with continuation of the treatment they were receiving in the community, or even just interruption of treatment, for chronic underlying health conditions will result in increased risk of morbidity and mortality related to these chronic conditions.
32. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected.
33. People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention. Failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by COVID-19 outbreaks, may result in poor health outcomes. Moreover, mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation.
34. Failure to keep accurate and sufficient medical records will make it more difficult for the facilities to identify vulnerable individuals in order to both monitor their health and protect them from infection. Inadequate screening and testing procedures in facilities increase the widespread COVID-19 transmission.
35. Language barriers will similarly prevent the effective identification of individuals who are particularly vulnerable or may have symptoms of COVID-19. Similarly, the failure to provide necessary aids to individuals who have auditory or visual disabilities could also limit the ability to identify and monitor symptoms of COVID19.
36. The commonplace neglect of individuals with acute pain and serious health needs under ordinary circumstances is also strongly indicative that the facilities will be illequipped to identify, monitor, and treat a COVID-19 epidemic.
37. The failure of these facilities to adequately manage single individuals in need of emergency care is a strong sign that they will be seriously ill-equipped and underprepared when a number of people will need urgent care simultaneously, as would occur during a COVID-19 epidemic.
38. For individuals in these facilities, the experience of an epidemic and the lack of care while effectively trapped can itself be traumatizing, compounding the trauma of incarceration.
8

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.126 Page 10 of 30
V. Conclusion and Recommendations 39. For the reasons above, it is my professional judgment that individuals placed in the Harris County Jail are at a significantly higher risk of infection with COVID-19 as compared to the population in the community, given the procedural and housing conditions in the facilities, and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death. 40. Reducing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for who both are housed and work within those facilities and for the community at large. 41. From a public health perspective, it is my strong opinion that individuals who can safely and appropriately remain in the community not be placed in the Harris County Jail at this time. I am also strongly of the opinion that individuals who are already in those facilities should be evaluated for release, and that a careful evaluation of procedural and housing guidance is created for those who remain in the facilities during the “stay at home” mandate, and possibly until the epidemic is contained. 42. This is more important still for individuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune systems, cancer, and diabetes) or who are over the age of 60.11 They are in even greater danger in these facilities, including a meaningfully higher risk of death. 43. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in these facilities is a matter of days, not weeks. 44. Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.
11 Report of the WHO-China Joint Mission of Coronavirus Disease 2019 (COVID-19) (Feb. 16-24 2020), available at https://www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf.
9

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.127 Page 11 of 30 I declare under penalty of perjury that the foregoing is true and correct to the best of my ability.

_______________________ Name

3/27/2020________ Date

10

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.128 Page 12 of 30 EXHIBIT A
Curriculum Vitae
11

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.129 Page 13 of 30
Personal statement My research focuses on HIV clinical management, HIV co-morbidity research, HIV malignancy clinical management, and virally-mediated cancer research, with an emphasis on evaluating the epidemiology of HIVassociated cancers, cancer prevention and outcomes. My work involves both utilizing large databases and cohorts to improve cancer prevention strategies for HIV-infected individuals as well as clinical trial/clinical research elucidating the prevention and treatment of HIV-related cancers. My training in Epidemiology, HIV, Oncology, and Infectious Diseases make me uniquely qualified to conduct research in HIV-related and other viral malignancies. My group and I were the first to show the effect of cumulative measurements of combined antiretroviral therapy (cART) on multiple different HIV-associated cancers utilizing VA administrative databases. We have over 20 publications on HIV-associated malignancies focusing on elucidating the impact of HIV-related factors on the incidence of HIV-related malignancies in high impact journals such as JAMA, the Journal of Clinical Oncology, Clinical Infectious Diseases, and the Journal of Acquired Immune Deficiency Syndromes. In the past 12 years I have received continuous funding by the National Institutes of Health (NIH) starting with an NCI funded K23 (K23 CA124318) in 2006. I subsequently received an NCI funded R01 (R01CA163103) entitled “The Effectiveness of Screening HIV-infected Women for Anal Cancer Precursors,” and a second R01 (R01CA206476) “(PQ 3) Identifying Novel Pharmacologic Risk factors for Common NonAIDS Defining Cancers in Individuals with Well-controlled HIV Infection.” I am additionally a co-investigator on multiple national NIH funded projects. I also hold several leadership positions in the AIDS Malignancy Consortium (AMC): I am 1) the Baylor College of Medicine principal investigator for the AMC, 2) the co-chair of AMC 087: a phase 1 protocol of Cabozantinib for the treatment of advanced solid tumors in HIV-infected individuals (currently enrolling), and 3) the chair of the Solid Tumor Working Group in the AMC. Given my research productivity and expertise, I was recently selected to co-lead the Mechanisms of Cancer Evolution Scientific Working Group in the Dan L. Duncan Cancer Center. Furthermore, I collaborate with U.S.-based and international researchers and I have been appointed to several national and international committees including the Board of Scientific Advisers subcommittee for HIV-related malignancies, scientific merit review committees for South Africa and the organizing committee for the International HIV Malignancy Conference. My clinical work as the clinical director of both the Anal Dysplasia and Medical Oncology clinics at the Thomas Street Health Center were recognized with a Baylor Clinician STAR award in 2017. Finally, I lead an active mentoring program where several mentees have successfully applied for and obtained career development awards and other various research funding. In summary, I am a clinician researcher whose goals are to improve survival and quality of life for HIV-infected individuals, and individuals with virally mediated cancer by improving cancer prevention, screening and treatment outcomes.
I. GENERAL BIOGRAPHICAL INFORMATION
A. Personal 1. Name: Elizabeth Yu Chiao, MD, MPH 2. Date of Birth: 7/13/1969; citizenship: USA 3. Home Address: 416 Byrne St. Houston, TX 77009 4. Office Address: Houston VA Medical Center (152), 2002 Holcombe Blvd, Houston, TX 77030 5. Office Phone Number: 713-440-4485 6. Email: echiao@bcm.edu
B. Education: 1. Undergraduate Education: a. Cornell University, Ithaca, NY, School of Arts, (Biology and Society), May 1990
2. Medical Education or Graduate Education (with thesis/dissertation title, advisor): a. Yale University School of Medicine, New haven, CT, Department of Epidemiology and Public
Health, Master Degree in Public Health, December 1993, Graduated with Distinction, Thesis Title: Survival Analysis of Connecticut AIDS Cases reported through 1990 b. Cornell University Medical College, New York, NY, Doctor of Medicine, May 1998
3. Postgraduate Training: residency, fellowship (clinical or research), with source of support and advisor, if relevant):
Page 1 of 18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.130 Page 14 of 30
a. University of Utah, Salt Lake City, UT, Internal Medicine Department, Resident House staff, June 1998-2001
b. Postgraduate Training-Fellowship: Memorial Sloan Kettering Cancer Center, New York, NY, Department of Medicine, Medical Oncology Clinical Research Fellow, Advisor: Susan Krown, July 2002-2004
c. Postgraduate Training-Fellowship: Baylor College of Medicine, Houston, TX, Department of Medicine, Infectious Disease Fellow: July 2004-April 2005

C. Academic Appointments 1. Current Faculty position at BCM: a. Professor, Internal Medicine, Infectious Diseases, Health Services Research Section, Center for Innovation in Quality, Effectiveness, and Safety, Michael E. DeBakey VA Medical Center, Baylor College of Medicine, 7/2018-present b. Associate Professor, Internal Medicine, Infectious Diseases, Health Services Research Section, Center for Innovation in Quality, Effectiveness, and Safety, Michael E. DeBakey VA Medical Center, Baylor College of Medicine, 3/2014-7/2018 c. Assistant Professor, Internal Medicine, Infectious Diseases, Health Services Research Section Center for Innovation in Quality, Effectiveness, and Safety, Michael E. DeBakey VA Medical Center, Baylor College of Medicine, 1/2006-3/2014 d. Instructor, Internal Medicine, Infectious Diseases, 4/2005-1/2006

2. Previous faculty position at other institutions: a. University of Utah, Salt Lake City, UT, Instructor, Department of Medicine. Attending physician in
the HIV inpatient and outpatient services. Supervise and teach Internal Medicine house staff; 7/2001-7/2002

D. Other advanced training/experience: 1. Formal Sabbatical leave: a. None

2. Other specialized training following academic appointment: a. Trained high-resolution anoscopy (HRA). UCSF HRA training program 4/05

E. Other information: 1. Honors or Awards: titles, dates: a. Heather Belsey Faculty Award, University of Utah 2002 b. MPH with Distinction 1993 c. Martin Luther King Community Service Award, Yale Medical School (1992) d. Outstanding Reviewer Annals Internal Medicine 2007 e. Outstanding Reviewer Clinical Infectious Diseases Award 2008 f. NIH Loan Repayment Recipient 2007-2011 g. Baylor College of Medicine Star Clinician Award 2017 h. Co-Leader Mechanisms of Cancer Evolution, Dan L. Duncan NCI designated Cancer Center 2019

F. Board Certification:

1. Texas State License Number:

Physician: L8647 exp: 5/31/2021

2. New York State License Number:

Physicians and Surgeons: 224503-1

3. ABIM Board Certification

a.

Internal Medicine Boards:

Certified 08/2001 Exp: 8/2011

b.

Internal Medicine Subspecialty Oncology: Certified 11/2004 Exp: 11/2024

c.

Internal Medicine Subspecialty Inf Dis:

Certified 11/2006 Exp: 11/2026

4. Other non-academic positions: a. Board Member Voices Breaking Boundaries Non-Profit
Page 2 of 18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.131 Page 15 of 30
b. Board Member of Univerity of Houston’s Friends of Women’s, Gender and Sexuality Studies
II. RESEARCH INFORMATION
A. Research Support
Current Research Funding:
1. (PQ3) Identifying Novel Pharmacologic Risk factors for Common Non-AIDS Defining Cancers in Individuals with Well-controlled HIV Infection a. National Institute of Health b. Principal Investigator c. June 2016-March 2020 d. $1,968,930 e. 1R01 CA206476-01
2. The Effectiveness of High Resolution Microendoscopy (HRME) in High Grade Intraepithelial Lesions (HSIL) Diagnosis for People Living with HIV a. National Institute of Health b. Co-Principal Investigator c. November 2018-November 2023 d. $2,100,000 e. R01 CA232890
3. AIDS Cancer Specimen Resource a. National Institute of Health, NCI b. Co-Investigator c. September 2013- December 2018 d. $1,747,386 over 5 years e. NIH UM1CA181255 f. PI: M. McGrath
4. Texas NeuroAIDS Repository a. National Institute of Health, NIMH b. Co-Investigator (Baylor Principal Investigator) c. February 2018-February 2023 d. $650,000 over 5 years e. U24MH100930 f. PI: B. Gelman
5. Annual Anal Sampling using DNA Screening to Identify Men Who have Sex with Men at Increased Risk for Anal Cancer a. National Institute of Health, NCI b. Co-investigator c. Sep 2017 - Aug 2022 d. $380,613 e. R01CA215403-01A1 f. PI: A. Nyitray
6. AIDS Malignancy Clinical Trial Consortium a. National Institute of health, NCI b. Co-investigator (Baylor Principal Investigator) c. August 2015- August 2020 d. $ 453,000 e. UM1CA121974 f. PI: R. Mitsuyasu
7. Immunogenetic determinants of HPV-related head and neck cancer in Veterans a. MEDVAMC b. Co-Principal Investigator c. April 2018 - March 2020 d. $148,169
Page 3 of 18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.132 Page 16 of 30
e. VA 1 I01 BX004183-01A1 8. Determining the accuracy of self- and partner anal exams for detecting anal abnormalities
a. National Institutes of Health, NCI b. Co-investigator c. Sept 2018-Aug 2023 d. $ 1,100,173 e. R01CA232892-01 f. PI: A. Nyitray 9. Optimizing Age-Based Anal Cancer Screening Among People Living with HIV Using Decision Analytic Modeling
a. National Institutes of Health, NCI b. Co-Investigator c. February 2019-February 2024 d. $200,000 e. 1R01CA232888-01A1 f. PI: A. Deshmukh
10. A Randomized Controlled Trial of Mail-Self Stamped HPV Testing to Increase Cervical Cancer Screening Participation Among Minority/Underserved Women in an Integrated Safety Net Healthcare System a. National Institutes of Health, NIMHD b. Co-Investigator c. April 2019- April 2024 d. $140,000 e. R01 MD013715-01 f. PI: J. Montealegre
Past Research Funding: 1. Pilot Study of Valganciclovir in Patients with Classic, non-HIV-associated Kaposi’s Sarcoma
a. Roche Pharmaceuticals b. Fellow c. July 2004-July 2010 d. $47,000 e. Pharmaceutical Grant 2. The Epidemiology of HIV-related Anal Dysplasia a. Baylor Seed Fund Institutional Grant b. Principal Investigator c. July 2007-July 2008 d. $25,000 (project support only) 3. Risk of Monoclonal Gammopathy of Undetermined Significance (MGUS) and Subsequent Multiple Myeloma (MM) among African American and White Veterans in the United States a. Contract b. National Cancer Institute c. July 2007-July 2008 d. $50,000 (project support only) 4. HPV-related cancers in HIV infected veterans a. Pilot funds from HSR&D b. Baylor College of Medicine c. Principal Investigator d. January 2009-December 2009 e. $10,000 5. The Epidemiologic Effects of HAART on HIV-related Anal Cancer and Anal Dysplasia a. K23 Patient-Oriented Mentored Career Development Award b. National Institute of Cancer, NIH c. Principal Investigator d. July 2006-June 2011 e. $637,500 over 5 years (80% salary and project funds)
Page 4 of 18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.133 Page 17 of 30
6. NIH 1 K23 CA124318-06 K23 Patient-Oriented Mentored Career Development Award Supplement a. National Institute of Cancer, NIH b. Principal Investigator c. September 2009-August 2011 d. $100,000 over 2 years (project support only)
7. Behavioral Strategies to Accrue and Retain Diverse Underserved Populations in HIV Related Malignancy Clinical Trials a. Supplement to U10CA139519-01A1 b. Co-Investigator c. September 2011-September 2013 d. $80,000
8. AIDS Cancer Specimen Registry (ACSR) Pilot Funds a. Pilot Funds from the ACSR b. UCSF c. Principal Investigator d. September 2009- September 2013 e. $75,000 (project support only)
9. The Effect of HAART on the Epidemiology and Molecular Pathogenesis of HIV-related Hodgkin Lymphoma a. Pilot Funds from the AIDS Malignancy Consortium (AMC) b. Principal Investigator c. May 2011-June 2014 d. $65,000 e. NIH P30 CA125123
10. The Feasibility of Self/Partner-Assisted Digital Anal Exams for Cancer Screening a. National Cancer Institute b. Co-investigator c. September 2013- September 2016 d. $125,000 e. NIH R21 CA181901
11. The Effectiveness of Screening HIV-infected Women for Anal Cancer Precursors a. National Institutes of Health, NCI b. Principal Investigator c. September 2011- August 2016 d. $120,000 e. NIH 1 R01 CA163103 (S1)
12. Risk and Predictors of Esophageal and Esophagogastric Junction Adenocarcinomas in HIVInfected Individuals
a. National Institute of Health, NIAID b. Co-investigator c. June 2016-December 2018 d. $475,487 e. P30AI027767 13. Supplement for AMC 084: The Effectiveness of Screening HIV-Infected Women for Anal Cancer
Precursors a. National Institute of Health, NCI b. Co-investigator c. Sep 2017 - Aug 2019 d. $193,793 e. UM1CA121974
1. National Scientific Participation:
a. Journal Review editorial boards: a. Ad-hoc journal reviewer, Antiviral Therapy, June 2006-present b. Ad-hoc journal reviewer, Annals Internal Medicine, July 2007-present
Page 5 of 18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.134 Page 18 of 30
c. Ad-hoc journal reviewer, Clinical Infectious Disease, August 2007-present d. Ad-hoc journal reviewer, International Journal of Cancer, July 2011-present e. Ad-hoc journal reviewer, International Journal of Infectious Diseases, May 2013-present f. Ad-hoc journal reviewer, JAIDS, March 2006-present
b. Review panels: a. The Ontario HIV Network, grant review July 2006 b. Reviewer, Ad Hoc, American Re-investment and Renewal Acct (ARRA) AIDS Cancer Vaccines, NCI, NIH, August, 2009. Bethesda, MD c. Reviewer, Ad Hoc, D43 AIDS Malignancy Training Grants in Africa, NCI, NIH February, 2010. Bethesda, MD d. Reviewer, Ad Hoc, NCI: RFA CA 11-011 and 012 “Research Answers to NCI’s Provocative Questions”, March 26-28, 2012 e. Reviewer, Ad Hoc, NCI: J subcommittee-Career Development Awards, March, 2013 f. Reviewer, Ad Hoc, NCI J subcommittee-Career Development Awards, July, 2013 g. Reviewer, Ad Hoc, NCI J subcommittee-Career Development Awards, November, 2013 h. Reviewer, Ad Hoc, NIAID, HIV and Aging Provocative Questions, November, 2013 i. Reviewer, Ad Hoc, NIAID, Special Emphasis Panel, January, 2014 j. Reviewer, Ad Hoc, NCI: Subcommittee - HIV and AIDS Malignancy September, 2017 k. Reviewer Ad Hoc, NIAID HIV and Aging Special Emphasis Panel, March 2018 l. Reviewer, NCI U54 Prevention of HPV-related Cancers in HIV-infected individuals: United States-Latin American-Caribbean Clinical Trials Network: Partnership Centers Special Emphasis Panel, April 2019
c. Professional societies: i. American Society of Clinical Oncology, 2004-current ii. Infectious Diseases Society of America, 2007-current
d. National Committees i. ACTG co-infections and malignancies subcommittee 2011-2014 ii. ACTG 5298, “A Randomized, Double-Blinded, Placebo-Controlled, Phase 3 Trial of the Quadrivalent HPV Vaccine to Prevent Anal Human Papillomavirus Infection in HIV-Infected Men and Women” iii. NCI “Provocative Questions: AIDS Malignancy” Committee March, 2014 iv. AMC Steering Committee, Member 2016-2018 v. Chair, AMC Non-AIDS Defining Cancer Committee (April 2017-present) vi. International Conference of HIV Malignancies (ICMH) meeting organizing committee (2017current)
vii. NCI Board of Scientific Advisers, HIV Malignancies, June 2017 viii. Scientific Steering Committee of University of Washington /Fred Hutchinson CFAR, March 2018 ix. 2018 Eurogin Program Committee, March 2018
x. External Advisory Board Weil/Cornell CFAR, February 2019
e. Invited lectures, presentations, research seminars: a. International i. Chiao, E. Head and Neck Cancers in U.S. Veterans Living in HIV, IAS Mexico City 7/23/2019 ii. Chiao, E. Screening HIV-infected Women for Anal Cancer Precursors, Eurogin, Salzburg, Austria 6/10-6/13/2016 iii. Chiao, E. Screening People Living with HIV for Anal Cancer, Eurogin, Lisbon, Portugal 12/3-12/15/2018
b. National 1) Chiao, E. Co-Chair: International Conference on HIV-related Malignancies, Outcome Disparities of HIV-associated Malignancies, Bethesda, MD, October 21-22, 2019
Page 6 of 18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.135 Page 19 of 30
2) Chiao, E. A Multi-Disciplinary Approach to Optimizing and Advancing Cancer Care for People Living with HIV, CFAR Seminar, University of Washington, Seattle WA July 11, 2019
3) Chiao, E. Co-Chair: International Conference on HIV-related Malignancies, Epidemiology of HIV-associated Malignancies, Bethesda, MD, October 22-24, 2017
4) Chiao, E. Co-Chair: Conference on Retroviruses and Opportunistic Infections (CROI): HPV-related malignancies, February 28-March 3, 2013, Atlanta, GA
5) Chiao, E. Chair person: AACR Annual Meeting, HIV Malignancies: Current Dilemmas and Future Directions, March 31-April 4, 2012, Chicago, IL.
6) Chiao, E. HIV- Related Anal Cancer and Cancer Precursors in the HAART Era, Association of Nurses in AIDS Care yearly meeting, September 26, 2008.
c. Local 1. Chiao, E. MD Anderson Cancer Center Institutional Grand Rounds: HIV and Maligncies, 5/18/2018 2. Chiao, E. Screening HIV-infected Individuals for Anal Cancer Precursors: What is the Evidence. Southern AIDS Education and Training Conference, 2/20/2018 3. Chiao, E. Viral and Molecular Oncogenesis Program meeting: "Evidence for screening HIV-infected women for anal cancer precursors”, 5/18/2011, 5/15/2016. 4. Chiao, E. TSH-HCHD HIV Conference 2017: Anal Cancer and HIV, 4/30/2017. 5. Chiao, E. CFAR AIDS Research Forum: Human Papilloma Virus and Cancer in HIVpositive Patients, 8/18/17.
2. Publications
a. Full papers in Peer Review Journals: I. Published
1) Clark E, Royse KE, Dong Y, Chang E, Raychaudhury S, Kramer J, White DL, Chiao E. Stable Incidence and Poor Survival for HIV-Related Burkitt Lymphoma Among the U.S. Veteran Population During the Anti-Retroviral Era. J Acquir Immune Defic Syndr. 2020 Jan 27. doi: 10.1097/QAI.0000000000002303. [Epub ahead of print] PubMed PMID: 31977597.
2) Stier EA, Abbasi W, Agyemang AF, Valle Álvarez EA, Chiao EY, Deshmukh AA. Recurrence of Anal High-Grade Squamous Intraepithelial Lesions among Women Living with HIV. J Acquir Immune Defic Syndr. 2020 Jan 16. doi: 10.1097/QAI.0000000000002304. [Epub ahead of print] PubMed PMID: 31977596.
3) Nyitray AG, DʼSouza G, Stier EA, Clifford G, Chiao EY. The Utility of Digital Anal Rectal Examinations in a Public Health Screening Program for Anal Cancer. J Low Genit Tract Dis. 2020 Jan 16. doi: 10.1097/LGT.0000000000000508. [Epub ahead of print] PubMed PMID: 31972661.
4) Sandulache VC, Wilde DC, Sturgis EM, Chiao EY, Sikora AG. A Hidden Epidemic of "Intermediate Risk" Oropharynx Cancer. Laryngoscope Investig Otolaryngol. 2019 Oct 17;4(6):617-623. doi: 10.1002/lio2.316. eCollection 2019 Dec. Review. PubMed PMID: 31890879; PubMed Central PMCID: PMC6929570.
5) Sandulache VC, Lei YL, Heasley LE, Chang M, Amos CI, Sturgis EM, Graboyes E, Chiao EY, Rogus-Pulia N, Lewis J, Madabhushi A, Frederick MJ, Sabichi A, Ittmann M, Yarbrough WG, Chung CH, Ferrarotto R, Mai W, Skinner HD, Duvvuri U, Gerngross P, Sikora AG. Innovations in risk-stratification and treatment of Veterans with oropharynx cancer; roadmap of the 2019 Field Based Meeting. Oral Oncol. 2019 Oct 21:104440. doi: 10.1016/j.oraloncology.2019.104440. [Epub ahead of print] PubMed PMID: 31648864.
6) White, DL; Oluyomi, A; Royse, K,; Dong, Y, Nguyen, H; Chang, E, Richardson, P; Jiao, L; Garcia, J.; Kramer, JR.; Thrift, A, Chiao, EY, Incidence of AIDS-related Kaposi Sarcoma in all 50 United States from 2000 to 2014. JAIDS. 2019 Aug 1;81(4):387-394. doi: 10.1097/QAI.0000000000002050. PMID: 31242141
7) Stier, A., Lensing,S., Darragh, M., Deshmukh, A., Einstein, M., Palefsky, J., Jay,N. BerryLawhorn, J.M., Wilkin, T., Wiley, D., Barroso, L., Cranston, R., Levine, R., Guiot, H., French, A., Citron, D., Rezaei, M.K., Goldstone, S., Chiao, E. Prevalence of and risk factors for anal high-
Page 7 of 18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.136 Page 20 of 30
grade squamous intraepithelial lesions in women living with HIV. Clin Infect Dis. 2019 Jul 11. pii: ciz408. doi: 10.1093/cid/ciz408. Epub ahead of print. PMID: 31292602 8) Kramer J, Hartman C, White DL, Royse K, Richardson P, Thirft A, Raychaudhury S, Desiderio R, Sanchez D, Chiao E. Validation of HIV cohort identification using automated clinical data in the Department of Veterans Affairs. HIV Medicine. 2019 May 26. doi: 10.1111/hiv.12757. Epub ahead of print. PMID: 31131549 9) El-Mallawany N, Kamiyango W, Villier J, Peckham-Gregory E, Scheurer M, McAtee C, Allen C, Kovarik C, Frank D, Eason A, Caro-Vegas C, Chiao E, Schutze G, Ozuah N, Mehta P, Kazembe P, Dittmer D. Kaposi Sarcoma Herpesvirus Inflammatory Cytokine Syndrome (KICS)-like Clinical Presentation in HIV-Infected Children in Malawi. Clin Infect Dis. 2019 Mar 22 pii: ciz250. doi: 10.1093/cid/ciz250. Epub ahead of print. PMID: 31102440. 10) Thrift AP, Kramer JR, Hartman CM, Royse K, Richardson P, Dong Y, Raychaudhury S, Desiderio, R, Sanchez D, Anandasabapathy S, White DL, Chiao EY. Risk and Predictors of Esophageal and Stomach Cancers in HIV-infected Veterans: A Matched Cohort Study. J Acquir Immune Defic Syndr. 2019 Mar 29. Epub ahead of print. PMID: 30939533 11) Harms A, Kansara S, Stach C, Richardson P, Chen G, Lai S, Sikora AG, Parke R, Donovan D, Chiao E, Skinner H, Sandulache VC. Swallowing Function in Survivors of Oropharyngeal Cancer Is Associated With Advanced T Classification. Ann Otol Rhinol Laryngol 2019 Mar 27:3489419839091. doi: 10.1177/0003489419839091. Epub ahead of print PMID:30913911 12) Fokom Domgue J, Messick C, Milbourne A, Guo M, Salcedo MP, Dahlstrom KR, Chiao EY, Deshmukh AA, Sturgis EM, Schmeler KM. Prevalence of high-grade anal dysplasia among women with high-grade lower genital tract dysplasia or cancer: Results of a pilot study. Gynecologic Oncology. 2019 Mar 1. Doi: 10.1016/j.ygyno. Epub ahead of print. PMID: 30827725 13) Kahn JA, Belzer M, Chi X, Lee J, Gaur AH, Mayer K, Martinez J, Futterman DC, Stier EA, Paul ME, Chiao EY, Reirden D, Goldstone SE, Ortiz Martinez AP, Cachay ER, Barroso LF, Da Costa M, Wilson CM, Palefsky JM; AIDS Malignancy Consortium and Adolescent Medicine Trials Network for HIV/AIDS Interventions. Pre-vaccination prevalence of anogenital and oral human papillomavirus in young HIV-infected men who have sex with men. Papillomavirus Res. 2019 Jan 15;7:52-61. doi: 10.1016/j.pvr.2019.01.002. Epub ahead of print. PMID: 30658128 14) Badr, H, Herbert, K, Chhabria, K, Sandulache, V, Bobby R, Chiao, E, Wagner, T. Couple-Based Self-Management for Head and Neck Cancer: Results of A Randomized Pilot Trial. Cancer. 2018 Dec 6. doi: 10.1002/cncr.31906. PMID: 30521075 15) Hicks, JT, Hwang, LY, Barnaiuk ,S, White, M, Chiao, EY, Onwuka, N, Ross, MW, Nyitray, AG. Factors associated with self-reported anal cancer screening history in men who have sex with men. Sex Health. 2018 Dec 6. Doi: 10.1071/SH18D39. PMID: 30517839 16) El-Mallawany,N, Villiera, J, Kamiyango, W, Peckham-Gregory, E, Scheurer, M, Allen,C, McAtee, C, Legarreta, A, Dittmer, D, Kovarik, C, Chiao, E, Martin,S, Ozuah,N, Mehta,P, Kazembe, P. Endemic Kaposi Sarcoma in HIV-Negative Children and Adolescents: An Evaluation of Overlapping and Distinct Clinical Features in Comparison with HIV-Related Disease. Infectious Agents and Cancer. Infect Agent Cancer.2018 Nov9; 13:33. doi:10.1186/s1307-018-0207-4. eCollection 2018. PMID: 30455728; PMCID: PMC6230225 17) Richardson P, Kansara S, Chen G, Sabichi A, Sikora A, Parke R, Donovan D, Chiao E, Sandulache V. Treatment Patterns in Veterans with Laryngeal and Oropharyngeal Cancer and Impact on Survival. Laryngoscope Investig Otolaryngol. 2018 Aug 9;3(4):275-282. doi: 10.1002/lio2.170. eCollection 2018 Aug. PMID: 30186958 ; PMCID: PMC6119785 18) Suk,R, Mahale,P, Sonawane, P, Sikora,A, Chhatwal, J, Schmeler, K, Sigel, K, Cantor, S, Chiao, E* , Deshmukh, A*. Trends in risks for second primary cancers associated with index Human Papillomavirus-Associated cancers. JAMA Network Open. 2018;1(5) e181999. doi:10.1001/jamanetworkopen.2018.1999. PMID: 30646145 ; PMCID: PMC6324459 19) Bender Ignacio R, Lin L, Rajdev L, Chiao E. Evolving Paradigms in HIV Malignancies: Review of Ongoing Clinical Trials. Journal of the National Comprehensive Cancer Network : JNCCN. 2018;16(8):1018-1026. doi:10.6004/jnccn.2018.7064. PMID: 30099376; PMCID: PMC6109631 20) Oseso LN, Chiao EY, Ignacio RAB. Evaluating Antiretroviral Therapy Ini tiation in HIV-Associated Malignancy: Is There Enough Evidence to Inform Clinical Guidelines? Send to J Natl Compr Canc Netw. 2018 Aug;16(8);927-932. doi: 10.6004/jnccn.2018.7057. PMID: 30099368 ; PMCID: PMC6207434
Page 8 of 18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.137 Page 21 of 30
21) Chang E, Sabichi AL, Kramer JR, Hartman C, Royse KE, White DL, Patel NR, Richardson P, Yellapragada SV, Garcia JM, Chiao EY. Nivolumab Treatment for Cancers in the HIV-infected Population. J Immunother. 2018 Jul 16. doi: 10.1097/CJI.0000000000000240. [Epub ahead of print] PMID: 30020193 ; PMCID: PMC6128753
22) Chang E, Mapakshi SR, Mbang P, El-Mallawany NK, Kramer JR, White DL, Chiao EY. The impact of protease inhibitors on HIV-associated Kaposi sarcoma incidence: a systematic review. J Acquir Immune Defic Syndr. 2018 Jul 6. doi: 10.1097/CJI.0000000000000240 [Epub ahead of print.] PMID: 29985803
23) Deshmukh AA, Shirvani SM, Likhacheva A, Chhatwal J, Chiao EY, Sonawane K. The Association Between Dietary Quality and Overall and Cancer-Specific Mortality Among Cancer Survivors, NHANES III. JNCI Cancer Spectr. 2018 Apr;2(2):pky022. doi: 10.1093/jncics/pky022. Epub 2018 Jun 5. PMID: 29905226 ; PMCID: PMC5989369
24) Thrift AP, Chiao EY. Are Non-HIV Malignancies Increased in the HIV-Infected Population? Curr Infect Dis Rep. 2018 May 26;20(8):22. doi: 10.1007/s11908-018-0626-9. Review. PMID: 29804238
25) Wilkin TJ, Chen H, Cespedes MS, Leon-Cruz JT, Godfrey C, Chiao EY, Bastow B, WebsterCyriaque J, Feng Q, Dragavon J, Coombs RW, Presti RM, Saah A, Cranston RD. A randomized, placebo-controlled trial of the quadrivalent HPV vaccine in HIV-infected adults age 27 or older: AIDS Clinical Trials Group protocol A5298. Clin Infect Dis. 2018 Apr 5. doi: 10.1093/cid/ciy274. [Epub ahead of print] PMID: 29659751 ; PMCID: PMC6186857
26) Cranston RD, Cespedes MS, Paczuski P, Yang M, Coombs RW, Dragavon J, Saah A, Godfrey C, Webster-Cyriaque JY, Chiao EY, Bastow B, Wilkin T; ACTG 5298 Study Team. High Baseline Anal Human Papillomavirus and Abnormal Anal Cytology in a Phase 3 Trial of the Quadrivalent Human Papillomavirus Vaccine in Human Immunodeficiency Virus-Infected Individuals Older Than 26 Years: ACTG 5298. Sex Transm Dis. 2018 Apr;45(4):266-271. doi: 10.1097/OLQ.0000000000000745. PMID: 29528986; PMCID: PMC5868482
27) Hwang JP, Ahmed S, Ariza-Heredia EJ, Duan Z, Zhao H, Schmeler KM, Ramondetta L, Parker SL, Suarez-Almazor ME, Ferrajoli A, Shih YT, Giordano SH, Chiao EY. Low rate of cervical cancer screening among women with hematologic malignancies after stem cell transplant. Biol Blood Marrow Transplant. 2018 May;24(5):1094-1098. doi: 10.1016/j.bbmt.2018.01.019. Epub 2018 Feb 9. PMID: 29378304
28) Chang E, Rivero G, Patel N, Chiao E, Lai S, Bajaj K, Mbue J, Yellapragada S. HIV-Related Refractory Hodgkin Lymphoma: A Case Report of Complete Response to Nivolumab. Clin Lymphoma Myeloma Leuk. 2018 Feb;18(2):e143-e146. doi: 10.1016/j.clml.2017.12.008. Epub 2018 Jan 3. PMID: 29342442; PMCID: PMC5809264
29) Stier EA, Chiao EY. Anal Cancer and Anal Cancer precursors in Women with a History of HPVRelated Dysplasia and Cancer. Semin Colon Rectal Surg. 2017 Jun;28(2):97-101. doi: 10.1053/j.scrs.2017.04.008. Epub 2017 Apr 26. PMID:29204065 ; PMCID: PMC5710808
30) Sonawane K, Suk R, Chiao EY, Chhatwal J, Qiu P, Wilkin T, Nyitray AG, Sikora AG, Deshmukh AA. Oral Human Papillomavirus Infection: Differences in Prevalence Between Sexes and Concordance with Genital Human Papillomavirus Infection, NHANES 2011 to 2014.Ann Intern Med. 2017 Nov 21;167(10):714-724. doi: 10.7326/M17-1363. Epub 2017 Oct 17 PMID:29049523 ; PMCID: PMC6203692
31) Deshmukh AA, Chiao EY, Cantor SB, Stier EA, Goldstone SE, Nyitray AG, Wilkin T, Wang X, Chhatwal J. Management of precancerous anal intraepithelial lesions in HIV-positive MSM: clinical and cost-effectiveness. Cancer. 2017 Dec 1;123(23):4709-4719. doi: 10.1002/cncr.31035. Epub 2017 Sep 26. [Available on 2018-12-01] PMID: 28950043 ;PMCID: PMC5693634
32) Biggerstaff KS, Frankfort BJ, Orengo-Nania S, Garcia J, Chiao E, Kramer JR, White D. Validity of code based algorithms to identify primary open angle glaucoma (POAG) in Veterans Affairs (VA) administrative databases. Ophthalmic Epidemiol. 2018 Apr;25(2):162-168. doi: 10.1080/09286586.2017.1378688. Epub 2017 Sep 25. PMID: 28945495
33) Nyitray AG, Hicks JT, Hwang L-Y, Baraniuk S, White M, Millas S, Onwuka N, Zhang X, Brown EL, Ross MW, Chiao EY. A Phase II clinical study to assess the feasibility of self- and partner anal exams to detect anal canal abnormalities including anal cancer. Sex Transm Infect. 2018 Mar;94(2):124-130. doi: 10.1136/sextrans-2017-053283. Epub 2017 Aug 23. PMID: 28835533; PMCID: PMC6173609
Page 9 of 18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.138 Page 22 of 30
34) Royse KE, El Chaer F, Amirian ES, Hartman C, Krown SE, Uldrick TS, Lee JY, Shepard Z, Chiao EY. Disparities in Kaposi Sarcoma Incidence and Survival in the United States: 2000-2013. PLoS One. 2017 Aug 22;12(8):e0182750. doi: 10.1371/journal.pone.0182750. eCollection 2017. PMID: 28829790; PMCID: PMC5567503
35) Deshmukh AA, Cantor SB, Fenwick E, Chiao EY, Nyitray AG, Stier EA, Goldstone SE, Wilkin T, Chhatwal J. Adjuvant HPV vaccination for anal cancer prevention in HIV-positive men who have sex with men: The time is now. Vaccine. 2017 Sep 12;35(38):5102-5109. doi: 10.1016/j.vaccine.2017.08.006. Epub 2017 Aug 12. PMID: 28807605; PMCID: PMC5581672 [Available on 2018-09-12]
36) Butame SA, Lawler S, Hicks JT, Wilkerson JM, Hwang LY, Baraniuk S, Ross MW, Chiao EY, Nyitray AG. (2017). A qualitative investigation among men who have sex with men on the acceptability of performing a self- or partner anal exam to screen for anal cancer. Cancer Causes Control. 2017 Oct;28(10):1157-1166. doi: 10.1007/s10552-017-0935-6. Epub 2017 Aug 4. [Available on 2018-10-01].PMID: 28779467; PMCID: PMC5731636
37) Chew EY, Hartman CM, Richardson PA, Zevallos JP, Sikora AG, Kramer JR, Chiao EY. Risk factors for oropharynx cancer in a cohort of HIV-infected veterans. Oral Oncol. 2017 May;68:6066. doi: 10.1016/j.oraloncology.2017.03.004. Epub 2017 Mar 23. PMID: 28438295 ; PMCID: PMC6365160
38) Kahn JA, Lee J, Belzer M, Palefsky JM, AIDS Malignancy Consortium and Adolescent Medicine Trials Network for HIV/AIDS Interventions (Chiao EY is listed as a senior author of this group). HIV-Infected Young Men Demonstrate Appropriate Risk Perceptions and Beliefs about Safer Sexual Behaviors after Human Papillomavirus Vaccination. AIDS Behav. 2017 Feb 20 [Epub ahead of print] PubMed [Available on 2018-08-20] PMID: 28220313; PMCID: PMC5563486
39) Oliver NT, Chiao EY. Malignancies in women with HIV infection. Curr Opin HIV AIDS. 2017 Jan;12(1):69-76. PMID: 27849632 ;PMCID: PMC5568069
40) Nyitray A, Chiao E. Maybe it isn't time to abandon the digital rectal exam for all conditions. Curr Med Res Opin. 2017 Feb;33(2):315-316. doi: 10.1080/03007995.2016.1254608. Epub 2016 Dec 8. PMID: 27805418
41) Deshmukh AA, Zhao H, Das P, Chiao EY, You YN, Franzini L, Lairson DR, Swartz MD, Giordano SH, Cantor SB. Clinical and economic evaluation of treatment strategies for T1N0 anal canal cancer. Am J Clin Oncol. 2016 Oct 17. [Epub ahead of print]. PMID: 27755059; PMCID: PMC5393969
42) Oliver, NT, Hartman, CM, Kramer, JR, Chiao, EY. Statin drugs decrease progression to cirrhosis in HIV/hepatitis C virus coinfected individuals. AIDS. 2016 Oct 23;30(16):2469-2476. PMID:27753678; PMCID: PMC5290260;
43) Lai S, Wenaas AE, Sandulache VC, Hartman C, Chiao E, Kramer J, Zevallos JP. Prognostic Significance of p16 Cellular Localization in Oropharyngeal Squamous Cell Carcinoma. Ann Clin Lab Sci. 2016 Mar;46(2):132-9. PMID:27098618
44) Varier I, Keeley BR, Krupar R, Patsias A, Dong J, Gupta N, Parasher AK, Genden E, Miles B, Teng M, Bakst RL, Gupta V, Misiukiewics K, Chiao E, Scheurer M, Laban S, Zhang DY, Ye F, Cui M, Demicco EG, Posner MR, Sikora A. Clinical Characteristics and Outcomes of Oropharyngeal Carcinoma Related to High Risk Non-HPV16 Viral Subtypes. Head Neck. 2016 Sep;38(9):1330-7. doi: 10.1002/hed.24442. Epub 2016 Apr 15. PMID:27080140
45) Mbang PA, Kowalkowski MA, Amirian ES, Giordano TP, Richardson PA, Hartman CM, Chiao EY. Association between Time on Protease inhibitors and the Incidence of Squamous Cell Carcinoma of the Anus among U.S. Male Veterans. PLoS One. 2015 Dec 2;10(12):e0142966. doi: 10.1371/journal.pone.0142966. PMID:26629701; PMCID:PMC4668039
46) Deshmukh AA, Zhao H, Franzini L, Lairson DR, Chiao EY, Swartz MD, Das P, Giordano SH, Cantor SB. Total Lifetime and Cancer-related Costs for Elderly Patients Diagnosed with Anal Cancer in the United States. Am J Clin Oncol. 2015 Oct 29. [Epub ahead of print] PMID:26523440 ; PMCID: PMC5592145;
47) Chiao E, Stier EA. Reply. Am J Obstet Gynecol. 2016 Mar;214(3):411-2. doi: 10.1016/j.ajog.2015.10.917. Epub 2015 Oct 30. PMID: 26522860
48) Battaglia TA, Gunn CM, McCoy ME, Mu HH, Baranoski AS, Chiao EY, Kachnic LA, Stier EA. Beliefs About Anal Cancer among HIV-Infected Women: Barriers and Motivators to Participation
Page 10 of 18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.139 Page 23 of 30
in Research. Womens Health Issues. 2015 Nov-Dec;25(6) :720-6. doi:10.1016/j.whi.2015.06.008. Epub 2015 Aug 4. PMID:26253825; PMCID:PMC4641840 49) Hwang JP, Granwehr BP, Torres HA, Suarez-Almazor ME, Giordano TP, Barbo AG, Lin HY, Fish MJ, Chiao EY. HIV testing in patients with cancer at the initiation of therapy at a large US comprehensive cancer center. J Oncol Pract. 2015 Sep;11(5):384-90. doi: 10.1200/JOP.2015.005116. Epub 2015 Aug 4. PMID:26243649 ; PMCID:PMC4575402 50) Deshmukh AA, Chhatwal J, Chiao EY, Nyitray A, Das P, Cantor SB. Long-term outcomes of adding HPV vaccine to the anal intraepithelial neoplasia treatment regimen in HIV-positive men who have sex with men. Clin Infect Dis. 2015 Jul 29. pii: civ628. PMID:26223993; PMCID:PMC4614412 51) Robinson JO, Slashinski MJ, Chiao E, McGuire AL. It depends whose data are being shared; considerations for genomic data sharing policies. J Law Biosci. 2015 jul 21;2(3):697-704. doi: 10.1093/jlb/lsv030. eCollection 2015 Nov. PMID: 27774218 ; PMCID: PMC5034404; 52) Moscicki A, Darragh TM, Berry-Lawhorn JM, Roberts JM, Khan MJ, Boardman LA, Chiao E, Einstein MH, Goldstone SE, Jay N, Likes WM, Stier EA, Welton ML, Wiley DJ, Palefsky JM. Screening for Anal Cancer in Women. J Low Genit Tract Dis. 2015 Jul;19(3 Suppl 1):S26-41. doi:10.1097/LGT.0000000000000117. PMID:26103446; PMCID:PMC4479419 53) Stier EA, Sebring MC, Mendez AE, Ba FS, Trimble DD, Chiao EY. Prevalence of anal human papillomavirus infection and anal HPV-related disorders in women: a systematic review. Am J Obstet Gynecol. 2015 Sep;213(3):278-309. doi: 10.1016/j.ajog.2015.03.034. Epub 2015 Mar 19. PMID:25797230; PMCID:PMC4556545 54) Kowalkowski MA, Kramer JR, Richardson PR, Suteria I, Chiao EY. Use of boosted protease inhibitors reduces Kaposi sarcoma incidence among male veterans with HIV Infection. Clin Infect Dis. 2015 May 1;60(9):1405-14. doi:10.1093/cid/civ012.Epub 2015 Jan 13. PMID:25586682; PMCID:PMC4462659 55) Kim MH, Ahmed S, Hosseinipour MC, Giordano TP, Chiao EY, Yu X, Nguyen C,Chimbwandira F, Kazembe PN, Abrams EJ. Implementation and operational research: The impact of Option B+ on the antenatal PMTCT cascade in Lilongwe, Malawi. J Acquir Immune Defic Syndr. 2015 Apr 15;68(5):e77-83. doi:10.1097/QAI.0000000000000517. PMID:25585302; PMCID:PMC4359035 56) Ahmed S, Kim M, Dave A, Sabelli R, Kanjelo K, Preidis G, Giordano TP, Chiao EY, Hoessinipour M, Kazembe P, Chimbwandira F, Abrams E. Improved identification and enrollment into care of HIV-exposed and infected infants and children following a community health worker intervention in Lilongwe, Malawi. J Int AIDS Soc. 2015 Jan 7;18(1)19305. doi:10.7448/IAS.18.1.19305. eCollection 2015. PMID: 25571857; PMCID:PMC4287633 57) Kramer JR, Kowalkowski MA, Duan Z, Chiao EY. The Effect of HIV Viral Control on the Incidence of Hepatocellular Carcinoma in Veterans with Hepatitis C and HIV Coinfection. J Acquir Immune Defic Syndr. 2015 Apr 1;68(4):456-62. doi:10.1097/QAI.0000000000000494. PMID:25559606; PMCID:PMC4334674 58) Dailey Garnes NJ, D'Souza G, Chiao E. Number of Primary Care Visits Associated with Screening for Cervical Dysplasia among Women with HIV Infection in Harris County, Texas, United States of America. HIV Adv Res Dev. 2015;1(2). pii: 107. Epub 2015 Feb 16. PMID:27500276; PMCID:PMC4974513 59) Deshmukh AA, Chiao EY, Das P, Cantor SB. Clinical effectiveness and cost-effectiveness of quadrivalent human papillomavirus vaccination in HIV-negative men who have sex with men to prevent recurrent high-grade anal intraepithelial neoplasia. Vaccine. 2014 Nov;32(51):6941-6947 doi:10.1016/j.vaccine.2014.10.052. PMID:25444820; PMCID:PMC4254641 60) Zevallos JP, Hartman CM, Kramer JR, Strugis EM, Chiao EY. Increased Thyroid Cancer Incidence Corresponds to Increased Utilization of Thyroid Ultrasound and Fine Needle Aspiration: A Population-based Study in the Veterans Affairs Healthcare System. Cancer. 2014 Nov 6. doi: 10.1002/cncr.29122. PMID:25376872 61) Luu HN, Amirian ES, Chiao EY, Scheurer ME. Age patterns of Kaposi's sarcoma incidence in a cohort of HIV-infected men. Cancer Med. 2014 Aug 20. doi: 10.1002/cam4.312. PMID:25139791; PMCID:PMC4298390 62) Kowalkowski M, Day R, Du X, Chan W, Chiao E. Cumulative HIV Viremia and Non-AIDS-Defining Malignancies Among a Sample of HIV-Infected Male Veterans. J Acquir Immune Defic Syndr. 2014 Jul 30. PMID:25078536; PMCID:PMC4162758
Page 11 of 18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.140 Page 24 of 30
63) Zevallos JP, Sandulache VC, Hamblin J, Skinner HD, Kramer J, Hartman CM, Horter KL, Lai S, Zhou X, Chiao EY. The impact of race on oropharyngeal squamous cell carcinoma presentation and outcomes among veterans. Head Neck. 2016 Jan;38(1):44-50. doi: 10.1002/hed.23836. Epub 2015 Jan 27.PMID:24992520
64) Kowalkowski MA, Mims MA, Day RS, Du XL, Chan W, Chiao EY. Longer duration of combination antiretroviral therapy reduces the risk of Hodgkin lymphoma: A cohort study of HIV-infected male veterans. Cancer Epidemiol. 2014 Aug;38(4):386-92. doi: 10.1016/j.canep.2014.05.009. Epub 2014 Jun 16. PMID:24947588; PMCID:PMC4447432
65) Sandulache VC, Hamblin J, Lai S, Pezzi T, Skinner HD, Khan NA, Dioun SM, Hartman C, Kramer J, Chiao E, Zhou X, Zevallos JP. Oropharyngeal squamous cell carcinoma (OPSCCA) in the veteran population is associated with traditional carcinogen exposure and poor clinical outcomes. Head Neck. 2014 May 7; PMID:24801106; PMCID:PMC4496314
66) Dinardo AR, Lewis DS, Koo HL, Goodman JC, Chiao E, Andrade R. Paradoxical immune reconstitution inflammatory syndrome due to toxoplasmic encephalitis: two cases and review of initiation of antiretroviral timing in toxoplasmic encephalitis IRIS. F1000Res. 2013 May 30;2. doi: 10.12688/f1000research.2-133. PMID:24358883; PMCID:PMC3814919
67) Valentin L, Dinardo A, Chiao E, Woc-Colburn L, Nachiappan A. Tuberculosis IRIS a mediastinal problem. F1000Res. 2013 Feb 18;2. doi: 10.12688/f1000research.2-54 PMID:24358876; PMCID:PMC3799548
68) Kowalkowski MA, Lulla P, Mims MP, Amirian ES, Chiao EY. Effect of Immune Reconstitution on the Incidence of HIV-Related Hodgkin Lymphoma. PLoS One. 2013 Oct 2;8(10):e77409. doi: 10.1371/journal.pone.0077409. PMID:24098586 ; PMCID:PMC3788758
69) Kim MH, Ahmed S, Preidis GA, Abrams EJ, Hosseinipour MC, Giordano TP, Chiao EY, Paul ME, Bhalakia A, Nanthuru D, Kazembe PN. Low Rates of Mother-to-Child HIV Transmission in a Routine Programmatic Setting in Lilongwe, Malawi. PLoS One. 2013 May 31;8(5):e64979. PMID:23741437; PMCID:PMC3669205
70) Amirian ES, Chiao EY, Hill KT, Marquez-Do D, Scheurer ME. Preliminary findings from a pilot study on the effects of interferon-α treatment on human papillomavirus infection in HIV and hepatitis C virus co-infected men. Sexual health. 2013 November 22; 10(6):570-570 https://doi.org/10.1071/SHv10n6ab2
71) Chiao EY, Hartman CM, El-Serag HB , Giordano TP. The Impact of HIV Viral Control on the Incidence of HIV-Associated Anal Cancer. 2013 Apr 22 JAIDS PMID:23614995; PMCID:PMC3797186
72) Amirian ES, Fickey PA Jr, Scheurer ME, Chiao EY. Anal Cancer Incidence and Survival: Comparing the Greater San-Francisco Bay Area to Other SEER Cancer Registries. PLoS One. 2013;8(3):e58919. doi: 10.1371/journal.pone.0058919. PMID:23484057; PMCID:PMC3590168
73) Betancourt EM, Wahbah MM, Been LC, Chiao EY, Citron DR, Laucirica R. Anal cytology as a predictor of anal intraepithelial neoplasia in HIV-positive men and women. Diagn Cytopathol. 2013 Jan 3. doi: 10.1002/dc.22941. PMID:23288861
74) Kim M, Ahmed S, Buck W, Preidis G, Hosseinipour M, Bhalakia A, Nanthuru D, Kazembe P, Chimbwandira F, Giordano T, Chiao E, Schutze G, Kline M, The Tingathe program: a pilot intervention using community health workers to create a continuum of care in the Prevention of Mother to Child Transmission of HIV (PMTCT) cascade of services in Malawi, Journal International AIDS Society. 2012 Jul 11;15(4):1-11 PMID:22789644; PMCID:PMC3499848
75) Chiao EY, Nambi PV, Naik AD. The impact of diabetes process and outcome quality measures on overall survival in patients with co-morbid colorectal cancer. J Cancer Surviv. 2010 Dec;4(4):381-7. PMID:20721633; PMCID:PMC3175493
76) Chiao EY, Dezube BJ, Krown SE, Wachsman W, Brock MV, Giordano TP, Mitsuyasu R, Pantanowitz L. Time for oncologists to opt in for routine opt-out HIV testing? JAMA. 2010 Jul 21;304(3):334-9. PMID:20639567; PMCID:PMC3160789
77) Chiao EY, Engels EA, Kramer JR, Pietz K, Henderson L, Giordano TP, Landgren O. Risk of immune thrombocytopenic purpura and autoimmune hemolytic anemia among 120 908 US veterans with hepatitis C virus infection. Arch Intern Med. 2009 Feb 23;169(4):357-63. PMID:19237719; PMCID:PMC2782638
Page 12 of 18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.141 Page 25 of 30
78) Chiao EY. Duration of anal human papilloma virus infection among immunocompetent women: clues to anal cancer epidemiology and possible prevention strategies. Clin Infect Dis. 2009 Mar 1;48(5):547-9. PMID:19191637
79) El-Serag HB, Engels EA, Landgren O, Chiao E, Henderson L, Amaratunge HC, Giordano TP. Risk of hepatobiliary and pancreatic cancers after hepatitis C virus infection: A population-based study of U.S. veterans. Hepatology. 2009 Jan;49(1):116-23. PMID:19085911; PMCID:PMC2719902
80) Davila JA, Chiao EY, Hasche JC, Petersen NJ, McGlynn KA, Shaib YH. Utilization and determinants of adjuvant therapy among older patients who receive curative surgery for pancreatic cancer. Pancreas. 2009 Jan;38(1):e18-25.PMID:18797424; PMCID:PMC3835699
81) Chiao EY, Giordano, TP, Richardson, P, El-Serag, HB. Human immunodeficiency virusassociated squamous cell cancer of the anus: epidemiology and outcomes in the highly active antiretroviral therapy era. J Clin Oncol. 2008 Jan 20;26(3):474-9. PMID:18202423
82) Arora A, Chiao E, Tyring SK. AIDS malignancies. Cancer Treat Res. 2007;133:21-67. PMID:17672037
83) Giordano TP, Henderson L, Landgren O, Chiao EY, Kramer JR, El-Serag H, Engels EA. Risk of non-Hodgkin lymphoma and lymphoproliferative precursor diseases in US veterans with hepatitis C virus. JAMA. 2007 May 9;297(18):2010-7. PMID:17488966
84) Chiao EY, Giordano TP, Palefsky JM, Tyring S, El Serag H. Screening HIV-infected individuals for anal cancer precursor lesions: a systematic review. Clin Infect Dis. 2006 Jul 15;43(2):223-33. Review. PMID:16779751
85) Chiao EY, Krown SE, Stier EA, Schrag D. A population-based analysis of temporal trends in the incidence of squamous anal canal cancer in relation to the HIV epidemic. J Acquir Immune Defic Syndr. 2005 Dec 1;40(4):451-5. PMID:16280701
86) Fields KS, Petersen MJ, Chiao E, Tristani-Firouzi P. Case reports: treatment of nevirapineassociated dress syndrome with intravenous immune globulin (IVIG). J Drugs Dermatol. 2005 JulAug;4(4):510-3. PMID:16004028
87) Stier EA, Krown SE, Chi DS, Brown CL, Chiao EY, Lin O. Anal dysplasia in HIV-infected women with cervical and vulvar dysplasia. J Low Genit Tract Dis. 2004 Oct;8(4):272-5. PMID:15874871
88) Teruya-Feldstein J, Chiao E, Filippa DA, Lin O, Comenzo R, Coleman M, Portlock C, Noy A. CD20-negative large-cell lymphoma with plasmablastic features: a clinically heterogenous spectrum in both HIV-positive and -negative patients. Ann Oncol. 2004 Nov;15(11):1673-9. PMID:15520070
89) Chiao EY, Krown SE. Update on non-acquired immunodeficiency syndrome-defining malignancies. Curr Opin Oncol. 2003 Sep;15(5):389-97. PMID:12960522
90) Chiao EY, Ries KM, Sande MA. AIDS and the elderly. Clin Infect Dis. 1999 Apr;28(4):740-5. PMID:10825030
91) Chiao E, Hadler J. From the Centers for Disease Control. Early childhood vaccination levels. JAMA. 1992 Feb 5;267(5):628-9NB. As reported from: CDC. Early Childhood Vaccination Levels Among Urban Children in Connecticut 1990 and 1991. MMWR RR2; 40: 888-90.1991. PMID:1731124
II. In Press 1. Gutierrez AM, Hofstetter JD, Dishner E, Chiao EY, Rai D, McGuire AL. A right to privacy and confidentiality: Ethical medical care for patients in United States immigration detention. Journal of Law, Medicine, and Ethics; Spring 2020
2.Sandulache VC, Wilde DC, Sturgis, Chiao EY, Sikora AG. A Hidden Epidemic of “Intermediate Risk” Oropharynx Cancer. Laryngoscope Investigative Otolaryngology.
III. Submitted/Under Review
1. Suk R, Montealegre J, Nemutlu G, Nyitray A, Chhatwal J, Bauer C, Chiao E, Schmeler K, Sonawane K, Deshmukh A. Knowledge of Human Papillomavirus (HPV), HPV Vaccine, and HPV-associated Cancers: Sex Differences in the United States, HINTS-5. JAMA IM.
Page 13 of 18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.142 Page 26 of 30
b. Abstracts given during last three years:
1) Elizabeth Chiao, MD, MPH, Dorothy J. Wiley PhD, Shelly Y Lensing, MS, Teresa Darragh, MD, Mark H Einstein, MD, Naomi Jay, PhD, J. Michael Berry Lawhorn, MD, Ashish A Deshmukh, PhD, Joel M Palefsky, MD, Timothy Wilkin, MD, Luis F Barroso, MD, Rebecca Levine, MD, Audrey L French, MD, Humberto Guiot MD, Ross D Cranston, MD, Elizabeth Stier, MD. Screening Tests for Anal High-Grade Squamous Intraepithelial Lesion Detection in Women Living with HIV. Poster presented at 17th International Conference on Malignancies in HIV/AIDS (ICMH), Bethesda, MD, October 21-22, 2019.
2) Eva Clark, Liang Chen,Yongquan Dong, Suchismita Raychaudhury, Jennifer Kramer, Donna White, Elizabeth Chiao. HIV+ Female Veterans Are At Increased Risk of Developing Genital Cancers. Poster presented at 17th International Conference on Malignancies in HIV/AIDS (ICMH), Bethesda, MD, October 21-22, 2019.
3) Eva Clark MD, Kathryn E. Royse, Yongquan Dong, Elaine Chang, Suchismita Raychaudhury, Jennifer Kramer, Donna White, Elizabeth Chiao. Burkitt Lymphoma in The ART Era: Stable Incidence, Poor Survival. Poster presented at 17th International Conference on Malignancies in HIV/AIDS (ICMH), Bethesda, MD, October 21-22, 2019.
4) Kathryn E. Royse, Jose M. Garcia, Donna L. White, Jennifer R. Kramer, Yongquan Dong, Suchismita Raychaudhury, Peter A. Richardson, Christine Hartman, Elizabeth Y. Chiao. Prostate adenocarcinoma incidence and risk factors in Veterans with well controlled HIV infection. In: Proceedings of the American Association for Cancer Research Annual Meeting 2019, March 29- Apr 3; Atlanta, GA. Philadelphia
5) Domgue JF, Messick C, Milbourne A, Guo M, Salcedo M, Chiao E, Dahlstrom K, Sturgis E, Schmeler K. Prevalence of anal dysplasia and cancer in women with lower genital tract dysplasia and cancer: Preliminary results of the PANDA Study. Accepted for presentation at the 17th Biennial Meeting of the International Gynecologic Cancer Society. Kyoto, Japan. September 14-16, 2018.
6) Mapakshi S, Kramer JR, Royse K, Chiao E, Garcia J, Kanwal F, El-Serag HB, Jiao L, White DL. Statins Use and Overall Survival in Pancreatic Cancer Patients: A Systematic Review and Metaanalysis. Accepted for presentation at the annual Digestive Disease Week 2018. Washington, DC. June 2-5, 2018.
7) Chang E, Thrift AP, White DL, Kramer J, Sabichi AL, Hartman C, Royse KE, Richardson P, Chiao EY. Nivolumab efficacy and safety in veterans with and without HIV infection. Accepted for presentation at the annual American Association for Cancer Research 2018. Chicago, Illinois. April 14-18, 2018.
8) Garcia JM, Kramer JR, Richardson PA, White D, Raychaudhury S, Chang E, Hartman C, Chiao EY. Effect of Diabetes, Metabolic factors and Medications on Risk of Lung Cancer among HIVInfected Veterans. Accepted for presentation at the annual Endocrine Society 2018. Chicago, Illinois. March 17-20, 2018.
9) Thrift AP, Royse KE, Richardson PA, Raychaudhury S, Desiderio R, White DL, Kramer JR, Chiao E. Risk of Non-AIDS-Defining Cancers among Veterans with well-controlled HIV Infection. Accepted for presentation at the Conference on Retroviruses and Opportunistic Infections, Boston, MA, March 4-8, 2018.
10) Thrift AP, White DL, Nguyen HP, Royse KE, Kramer JR, Chiao EY. Trends in incidence of Kaposi Sarcoma among males in all 50 United States between 2000 and 2013. Accepted for presentation at the Conference on Retroviruses and Opportunistic Infections, Boston, MA, March 4-8, 2018.
11) Mapakshi S, Mbang P, Kramer JR, White DL, Chiao EY. Impact of Protease Inhibitor Based Regimens on Incidence of HIV associated Kaposi Sarcoma: A Systematic Review of Literature.
Page 14 of 18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.143 Page 27 of 30
Presented at the International Conference on Malignancies in HIV/AIDS. Bethesda, MD. October 23-24, 2017
12) Thrift AP, Royse KE, Richardson PA, Raychaudhury S, Desiderio R, White DL, Kramer JR, Chiao EY. Risk Of Non-AIDS-Defining Cancers Among Veterans With Well-Controlled HIV Infection. Presented at the International Conference on Malignancies in HIV/AIDS. Bethesda, MD. October 23-24, 2017
13) Chang E, Hartman C, Royse K, Kramer J, White D, Richardson P, Chiao EY. A Case Series of Nivolumab in Veterans with HIV Infection and Malignancy. Presented at the International Conference on Malignancies in HIV/AIDS. Bethesda, MD. October 23-24, 2017
14) Mapakshi SR, Kramer JR, Royse KE, Chiao E, Garcia JM, Kanwal F, El-Serag H, Jiao L, White D. Statins Use and Overall Survival in Pancreatic Cancer Patients: A Systematic Review and Meta-analysis. Presented at the annual Digestive Disease Week Meeting, Chicago, Illinois, May 6, 2017.
15) Biggerstaff K, Kramer J, Chiao E, Richardson P, Orengo-Nania S, Frankfort B, White D. Open Angle Glaucoma (OAG) and Uric Acid (UA) Levels in the Veteran Population. Presented at the 27th Annual Meeting of the American Glaucoma Society, Coronado, California. March 3, 2017.
16) Biggerstaff K, Frankfort B, Orengo-Nania S, Garcia J, Chiao E, Kramer J, White D. Diagnostic Algorithms to Identify Primary Open Angle Glaucoma in Veterans Affairs Administrative Databases. Poster presented at 2016 Michael E. DeBakey VA Medical Center Research Poster Day, Houston, Texas, October 26, 2016.
17) Biggerstaff K, Frankfort B, Orengo-Nania S, Garcia J, Chiao E, Kramer J, White D. Diagnostic Algorithms to Identify Primary Open Angle Glaucoma in Veterans Affairs Administrative Databases. Poster presented at 2016 Baylor Graduate Student Symposium, Houston, Texas, October 19, 2016.
18) Varier I, Chew E, Ramsey D, Sikora A, Chiao E. HEALTHCARE UTILIZATION IN HPV RELATED CANCERS. Presented at the AHNS 9th International Conference on Head and Neck Cancer, Seattle, WA, July 18, 2016.
19) Wilkin TJ, Chen H, Cespedes M, Paczuski P, Godfrey C, Chiao E, Luque A, Webster-Cyriaque JY, Bastow B, Cranston R. ACTG A5298: A Phase 3 Trial of the Quadrivalent HPV Vaccine in Older HIV+ Adults. CROI February 23, 2016.
20) Oliver N, Hartman CM, Kramer JR, Chiao EY. Statin Use and the Impact on Cirrhosis Progression in a HIV/HCV Co-infected Population. Poster Presented at the Conference on Retroviruses and Opportunistic Infections, Boston, MA, February 23, 2016.
21) Oliver N, Hartman CM, Kramer JR, Chiao EY. Metabolic Risk Factors Associated with HCC Development in an HIV/HCV Co-Infected Cohort. Poster Presented at the 15th Conference on Malignancies in AIDS and Other Acquired Immunodeficiencies, Bethesda, MD, October 26, 2015.
c. Books: a. complete books written: N/A b. books edited: N/A c. book chapters written 1) Chang E, Chiao EY. Oncologic Manifestations of HIV Infection. In The Sub-Specialty Care of HIV-Infected Patients. Nova Scientific Publications, 2018. 2) Oliver N, Chiao EY. Malignant Diseases in HIV. In AAHIVM Fundamentals of HIV Medicine. Oxford University Press. 2017 3) Chiao E. Malignant Diseases in HIV. In Looking for Daylight: Evidence in Medicine and Federal Policy on Comparative Effectiveness Research. Oxford University Press, 2016
Page 15 of 18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.144 Page 28 of 30
4) Mbang P, Chiao E. Malignancies and Neoplasms. In AAHIMV Fundamentals of HIV Medicine. AAHIVM, 2012
5) Tarakaji M, Chiao E. Anal Canal Carcinoma. In Tumor Board Reviews, Guidelines and Case Reviews in Oncology, Demos Medical. 2012
6) Chiao. E. Epidemiology and Clinical Characteristics of Non-AIDS-Defining Malignancies in Molecular basis for therapy of AIDS defining cancers, Springer 2010
7) Chiao EY, Krown SE. Non-AIDS-Defining Cancers in HIV Infected Individuals. In, Viral and Immunological Malignancies. PA Volberding and J Palefsky, eds. American Cancer Society, Atlas of Clinical Oncology. 2006
8) Arora A, Chiao E, Tyring S. Treatment of AIDS-Associated Viral Oncogenesis. In AIDS Associated Viral Oncogenesis. Myers, C editor. Springer publishing, 2007.
d. Other works communicating research results to scientific colleagues: N/A e. Other works communicating research results to general public : N/A
III. TEACHING INFORMATION
A. Educational Leadership Roles 1. CSTP research mentor, 2. T32 research mentor, Infectious Disease T32, medical oncology T32
B. Didactic course work 1. Courses taught at current institution: a. Implicit Association Test (IAT) “Best Intentions” Workshop for the LACE course 2009-present b. Patient Safety Course Steering Committee, 2011-2012 c. Infectious Diseases Course: Viruses and Cancer 2012-2018 2. Courses taught at other institutions: N/A 3. Courses expected to be taught at BCM: Undergraduate Medical Education: Infectious Diseases Course
C. Curriculum development work None
D. Non-didactic teaching 1. Resident training: 80 hours 2. Clinical Fellow training: Ben Taub General Hospital 4 weeks per year 3. Graduate Student training: PhD Dissertation Committee: Mark Kowalkowski, PhD September, 2013, Ashish Deshmukh, UTSPH PhD 2014, Hsuan-Chen Liu PhD 2019 (expected) 4. Estimate of kinds of non-didactic teaching expected at BCM: Mentor for internal Medicine Residents and Fellows Research; Dan Haim Cohen 2007-2008, and Natalie Dailey 2009-2010, Virginia Jackson 2011-2012, Pamela Mbang 2015-2016, Nora Oliver, Elaine Chang 2017-2018, Eva Clark 2018-2021 5. Medical School Mentor 2009-2011 Medical Students: Erin Chew 2016-2018, Alison Kremer Yoder 2018-2019 6. Mentor Junior Faculty: Maria Kim, MD; Saeed Ahmed, MD; Jose Zevallos, MD- recipient VISN 16 Pilot; Aaron Thrift, PhD, Michael Scheurer, PhD, Vlad Sandluche, MD/PhD, Bich Dang, MD, Andrew Dinardo, MD (pediatrics), Lillie Lin, MD (MDACC), Ashish Deshmukh, MD (University of Florida), Rachel Bender Ignacio, MD (University of Washington), Alan Nyitray, PHD (University of Texas School of Public Health)
E. Lectures and Presentations: 1. International: a. Chiao, E. Panelist, Confronting the Challenges Relevant to HIV/AIDS Malignancies in SubSaharan Africa Symposium, Capetown, South Africa 7/31-8/2/2015
2. National:
Page 16 of 18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.145 Page 29 of 30
a. Chiao, E. Human Immunodeficiency Virus and Cancer: A Multi-disciplinary Approach to Optimizing and Advancing Clinical Care. Boston University Infectious Diseases Grand Rounds, March 21, 2019
b. Chiao, E. HIV in the Southern United States. Symposium: An Interdisciplinary History of the Struggle Against HIV/AIDS. University of Utah Law school, October 2, 2015
c. “HIV and the 50 plus population” 2007. AETC. Cornell University Medical College, NY, NY. June 15, 2007
d. “Oncology and HIV Disease” 2005. Quarterly Roundtable Discussion. Moderated by Kristen Ries, University of Utah.
3. Regional: a. The Epidemiology and Outcomes of HPV-Associated Malignancies. Cancer Program Continuing Medical Education, Alexandria, VA, 8/8/13 b. “HIV and the over 50 population” 15th Annual Thomas Street HIV Conference. Houston Hyatt. December 16, 2006 c. “HIV and the Elderly” West Houston Medical Center. Sponsored by Texas-Oklahoma AIDS Education Training Center. April 8, 2005
4. Local: (See FAP Educational Portfolio for additional recurring lectures) a. Research in Progress: VA Research Symposium, Michael E. Debakey, January 2018 b. Research in Progress: Infectious Diseases Division, Baylor College of Medicine, May 2017 c. Citywide Infectious Diseases Conference, Baylor College of Medicine, March 2016 d. BCM Grand Rounds: “Infectious Disease Update: HPV vaccine update”, January 2012 e. BCM Grand Rounds: “CPC: Lumps on the Head”, January 2012 f. Research in Progress: Infectious Diseases Division, Baylor College of Medicine, February 2008 g. CPC Internal Medicine, Baylor College of Medicine March 2007 h. “Update on AIDS-Related Maligancies” VA and Thomas Street Clinical Noon Conferences. January, 2006 i. Anal Cancer and Anal Cancer Precursors among HIV-Infected Individuals. Quality Research in Progress Seminar Series. Houston Center for Quality Care and Utilization Services (HCQCUS). October 8, 2005
F. Visiting professorships: N/A
IV. MEDICAL AND SERVICE INFORMATION
A. Patient care responsibilities 1. Department-wide: N/A 2. Section or specialty: a. HIV/Infectious Disease Attending: Ben Taub General Hospital 1. 1.5 months per year, 2006-current b. HIV/Infectious Disease Clinic: Thomas Street Clinic 1. ½ day every other week, 2006-current c. Medical Oncology Clinic: Thomas Street Clinic 1. ½ day every other week, plus emergency weekly visits, 2006-current d. Anal Dysplasia Clinic: Thomas Street Clinic 1. ½ day every week, 2006-current e. Research Clinic (Med Onc and Anal Dysplasia) for AMC trials 1. ½ day every week 2008-current
B. Clinical Leadership or Business Development: N/A
C. Voluntary Health Organization Participation: N/A
V. SERVICE CONTRIBUTIONS
Page 17 of 18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-4 filed 04/17/20 PageID.146 Page 30 of 30
A. Administrative assignments 1. Department administration, committees, etc: 2. College, School or University administration, committees, etc a. IRB member July 2006- July 2009, b. Baylor Department Medicine Research Committee, January 2018
B. National, Regional or Local Participation in Professional or Voluntary Organizations 1. Hurricane “Harvey” Hero September 2017
Last updated 12/30/2019
Page 18 of 18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-5 filed 04/17/20 PageID.147 Page 1 of 5
Exhibit 4

Case 2:20-cv-10949-LVP-MJH ECF No. 1-5 filed 04/17/20 PageID.148 Page 2 of 5

Case 2:20-cv-10949-LVP-MJH ECF No. 1-5 filed 04/17/20 PageID.149 Page 3 of 5

Case 2:20-cv-10949-LVP-MJH ECF No. 1-5 filed 04/17/20 PageID.150 Page 4 of 5

Case 2:20-cv-10949-LVP-MJH ECF No. 1-5 filed 04/17/20 PageID.151 Page 5 of 5

Case 2:20-cv-10949-LVP-MJH ECF No. 1-6 filed 04/17/20 PageID.152 Page 1 of 14
Exhibit 5

Case 2:20-cv-10949-LVP-MJH ECF No. 1-6 filed 04/17/20 PageID.153 Page 2 of 14

1 Timothy P. Fox (CA Bar 157750)

2

tfox@creeclaw.org Elizabeth Jordan*

3

ejordan@creeclaw.org CIVIL RIGHTS EDUCATION AND

4

ENFORCEMENT CENTER 1245 E. Colfax Avenue, Suite 400

5

Denver, CO 80218 Tel: (303) 757-7901

6 Fax: (303) 872-9072

7 Lisa Graybill*

lisa.graybill@splcenter.org

8 Jared Davidson*

9

jared.davidson@splcenter.org SOUTHERN POVERTY LAW

10

CENTER 201 St. Charles Avenue, Suite 2000

11

New Orleans, Louisiana 70170 Tel: (504) 486-8982

12 Fax: (504) 486-8947

Stuart Seaborn (CA Bar 198590) sseaborn@dralegal.org Melissa Riess (CA Bar 295959) mriess@dralegal.org DISABILITY RIGHTS ADVOCATES 2001 Center Street, 4th Floor Berkeley, California 94704 Tel: (510) 665-8644 Fax: (510) 665-8511

13

14

15 Attorneys for Plaintiffs (continued on next page)

16

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

17

EASTERN DIVISION – RIVERSIDE

18 FAOUR ABDALLAH FRAIHAT, et al., Case No.: 19-cv-01546-JGB(SHKx)

19 20

Plaintiffs, v.

DECLARATION OF DR. CARLOS FRANCO-PAREDES

21 U.S. IMMIGRATION AND CUSTOMS 22 ENFORCEMENT, et al.,

Date: March 24, 2020

23

Defendants.

24

25

26

27

28

Case 2:20-cv-10949-LVP-MJH ECF No. 1-6 filed 04/17/20 PageID.154 Page 3 of 14

1 William F. Alderman (CA Bar 47381)

2

walderman@orrick.com Jake Routhier (CA Bar 324452)

3

jrouthier@orrick.com ORRICK, HERRINGTON &

4

SUTCLIFFE LLP 405 Howard Street

5

San Francisco, CA 94105 Tel: (415) 773-5700

6 Fax: (415) 773-5759

7 Michael W. Johnson**

mjohnson1@willkie.com

8 Dania Bardavid**

9

dbardavid@willkie.com Jessica Blanton**

10

jblanton@willkie.com Joseph Bretschneider**

11

jbretschneider@willkie.com WILLKIE FARR &

12

GALLAGHER LLP 787 Seventh Avenue

13 New York, NY 10019

Tel: (212) 728-8000

14 Fax: (212) 728-8111

15 Maia Fleischman*

16

maia.fleischman@splcenter.org SOUTHERN POVERTY LAW

17

CENTER 2 South Biscayne Boulevard

18

Suite 3750 Miami, FL 33131

19

Tel: (786) 347-2056 Fax: (786) 237-2949

20

Christina Brandt-Young*

21 cbrandt-young@dralegal.org

22

DISABILITY RIGHTS ADVOCATES

23

655 Third Avenue, 14th Floor New York, NY 10017

24

Tel: (212) 644-8644 Fax: (212) 644-8636

25

Mark Mermelstein (CA Bar 208005) mmermelstein@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 777 South Figueroa Street Suite 3200 Los Angeles, CA 90017 Tel: (213) 629-2020 Fax: (213) 612-2499 Leigh Coutoumanos** lcoutoumanos@willkie.com WILLKIE FARR & GALLAGHER LLP 1875 K Street NW, Suite 100 Washington, DC 20006 Tel: (202) 303-1000 Fax: (202) 303-2000 Shalini Goel Agarwal (CA Bar 254540) shalini.agarwal@splcenter.org SOUTHERN POVERTY LAW CENTER 106 East College Avenue Suite 1010 Tallahassee, FL 32301 Tel: (850) 521-3024 Fax: (850) 521-3001 Maria del Pilar Gonzalez Morales (CA Bar 308550) pgonzalez@creeclaw.org CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER 1825 N. Vermont Avenue, #27916 Los Angeles, CA 90027 Tel: (805) 813-8896 Fax: (303) 872-9072

26 Attorneys for Plaintiffs (continued from previous page) *Admitted Pro Hac Vice
27 **Pro Hac Vice Application Forthcoming

28

Case 2:20-cv-10949-LVP-MJH ECF No. 1-6 filed 04/17/20 PageID.155 Page 4 of 14

1

Declaration of Dr. Carlos Franco-Paredes

2

The Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2), is a

3 newly emerging zoonotic agent initially identified in December 2019 that, as of

4 today, has spread to more than 150 countries causing 297,000 confirmed cases and

5 12,755 deathsa. This viral pathogen causes the Coronavirus Disease 2019 (COVID-

6 19). Infection with COVID-19 is associated with significant morbidity and

7 mortality especially in patients above 55 years of age and those with chronic

8 medical conditionsb,c,d.

9

Immigration detention centers in the U.S. are tinderboxes for the

10 transmission of highly transmissible infectious pathogens including the SARS-

11 CoV-2, which causes COVID-19. Given the large population density of

12 immigration detention centers and the ease of transmission of this viral pathogen,

13 the attack rate inside these centers will take exponential proportions, consuming

14 significant medical and financial resources.

15

As an infectious disease clinician with a public health degree in the

16 dynamics of infectious disease epidemics and pandemics and twenty years of

17 clinical experience, I am concerned about the treatment of immigrants inside

18 detention centers which could make the current COVID-19 epidemic worse in the

19 U.S. by having a high case fatality rate among detainees and potentially spreading

20 the outbreak into the larger community. A copy of my CV is presented in Exhibit

21 A.

22

I have experience providing care to individuals in a civil detention center

23 and have performed approximately two medical forensic examinations and fifteen

24 medical second opinion evaluations for patients in the custody of the Department

25 of Homeland Security (DHS). Based on my conversations with patients, my own

26 observations, and information that exists regarding the resources available within

27 immigration detention facilities as detailed by the ICE Health Services Corps, it is

28 my professional opinion that the medical care available in DHS custody cannot

1

Case 2:20-cv-10949-LVP-MJH ECF No. 1-6 filed 04/17/20 PageID.156 Page 5 of 14

1 properly accommodate the needs of patients should there be an outbreak of 2 COVID-19 in an immigration detention facility. The physical and emotional 3 trauma that detainees and asylum seekers experience can weaken their immune 4 systems, resulting in increased risk of severe manifestations of infections. For 5 example cases of influenza virus infections causing pneumonia and respiratory 6 failure, - albeit influenza infection is not as communicable and not transmitted 7 during asymptomatic infection as it is the case with SARS-CoV-2 -, has caused 8 human deaths inside immigration detention centers e.

9 • For people in the highest risk populations, the fatality rate of COVID-19
10 infection is about 15 percent.
11

12

According to the CDC, groups deemed to be at high risk of developing

13 severe disease and dying from COVID-19 include those above 55 years of age and

14 those with underlying medical conditions (regardless of their age) (See Table 1).

15 These cases are also amplifiers or hyper-spreaders of the infection since they tend

16 to have high viral concentrations in their respiratory secretions.

17

The clinical experience in China, South Korea, Italy and Spain has shown

18 that 80% of confirmed cases tend to occur in persons 30-69 years of age regardless

19 of whether they had underlying medical conditions. Of these, 20% develop severe

20 clinical manifestations or become critically ill. Among those with severe clinical

21 manifestations, regardless of their age or underlying medical conditions, the virus

22 progresses into respiratory failure, septic shock, and multiorgan dysfunction

23 requiring intensive care support including the use of mechanical ventilator support.

24 The overall case fatality rate is 10-14% of those who develop severe disease. In

25 China, 80% of deaths occurred among adults > 60 yearsc.

26 Table 1. Risk factors for developing severe disease and death outside the U.S.

27 Age groups at high risk of

50-59 years (1% CFR)*

28 developing severe disease and dying 60-69 years (3.6% CFR)

without underlying medical

70-79 years (8% CFR)

2

Case 2:20-cv-10949-LVP-MJH ECF No. 1-6 filed 04/17/20 PageID.157 Page 6 of 14

1 conditions

2 Groups with underlying medical 3 conditions at high risk of dying 4 regardless of their age

-Cardiovascular Disease (congestive heart failure, history of myocardial infarction, history of cardiac surgery)

5

-Systemic Arterial Hypertension (high

6

blood pressure)

7

-Chronic Respiratory Disease (asthma,

8

chronic obstructive pulmonary disease including chronic bronchitis or

9

emphysema, or other pulmonary

10

diseases)

11

-Diabetes Mellitus

12

-Cancer

13

14

-Chronic Liver Disease

15

-Chronic Kidney Disease

16

-Autoimmune Diseases (psoriasis,

17

rheumatoid arthritis, systemic lupus

18

erythematosus)

19

-Severe Psychiatric Illness **

20 -History of Transplantation
21

22

-HIV/AIDS

23

-Pregnancy***

24 *CFR= Case Fatality Rate. This is an indicator of lethality used during outbreaks to identify the number of
individuals who succumb out of those infected.
25 ** In South Korea, 20% of deaths occurred in what they defined as Psychiatric Illness (J Korean Med Sci 2020;
35(10): e112).
26 *** Extrapolation from previous influenza pandemics including the 2009 pandemic that increased pregnancy-related
mortality 4-fold particularly during second and third trimesters. The reason is due to immune mediated changes
27 during pregnancy and lung function compromise due to gravid uterus (Omer S. N Engl J Med 2017;376(13): 1256-
1267.
28

3

Case 2:20-cv-10949-LVP-MJH ECF No. 1-6 filed 04/17/20 PageID.158 Page 7 of 14

1

There is a growing number of confirmed cases in the U.S., increasing

2 number of hospitalizations and admissions to intensive care units, and many

3 deaths. In this wave of the pandemic or in subsequent ones, it is likely the number

4 of infected individuals will continue to augment. In the closed settings of

5 immigration detention centers, where there is overcrowding and confinement of a

6 large number of persons, networks of transmission become highly conducive to

7 spread rapidly. 8 As of March 16, 2020c, cases of COVID-19 in the U.S. reported by the CDC

9 shows that 31% of COVID-19 cases, 45% of hospitalizations, and 80% of deaths

10 occurred among adults > 65 years of age. Case-fatality in persons aged > 85 ranged

11 from 10-27%, followed by 3-11% among persons aged 65-84 years, 1% among

12 persons aged 55-64 and <1% among persons 20-54 years of age.

13

Reports by the Chinese CDC demonstrate that the case fatality rate is highest among critical

14 cases in the high-risk categories with COVID at 49%f. Case fatality was higher for patients with

15 comorbidities: 10.5% for those with cardiovascular disease, 7% for diabetes, and 6% each for

16 chronic respiratory disease, hypertension, and cancer. Case fatality for patients who developed 17 respiratory failure, septic shock, or multiple organ dysfunction was 49%b.

18 • For people with these risk factors, COVID-19 can severely damage
19 lung tissue, which requires an extensive period of rehabilitation, and
20 in some cases, can cause permanent loss of respiratory capacity.
21

22

There is preliminary evidence that persons with COVID-19 who are

23 recovering from severe disease and who have developed extensive pulmonary 24 disease including Acute Respiratory Distress Syndrome (ARDS)g may have long-

25 term sequelae similar to other infectious pathogens evolving in a similar pattern.

26 Long term sequelae of those with sepsis, ARDS and respiratory failure identified in

27 the literature include long-term cognitive impairment, psychological morbidities,

28 neuromuscular weakness, pulmonary dysfunction, and ongoing healthcare

4

Case 2:20-cv-10949-LVP-MJH ECF No. 1-6 filed 04/17/20 PageID.159 Page 8 of 14

1 utilization with reduced quality of lifeh and need for rehabilitation servicesi.

2 • COVID-19 may also target the heart muscle, causing a medical
3 condition called myocarditis, or inflammation of the heart muscle.
4 Myocarditis can affect the heart muscle and electrical system,
5 reducing the heart’s ability to pump. This reduction can lead to
6 rapid or abnormal heart rhythms in the short term, and long-term
7 heart failure that limits exercise tolerance and the ability to work.
8

9

The full description of the pathogenesis of COVID-19 requires to be

10 completely elucidated. However, there is clinical evidence that in addition to the

11 severe lung injury associated to this viral infection, some persons may also develop

12 myocardial involvement that appears to be the result of either direct viral infection

13 or caused by the immune response to SARS-CoV-2. From the published case

14 reports, myocarditis caused by this viral pathogen is associated with congestive 15 heart failure, cardiac arrhythmias and deathj. Similar to other viral myocarditis, 16 most patients may develop long-term myocardial damagek.

17 • Emerging evidence also suggests that COVID-19 can trigger an over-
18 response of the immune system, further damaging tissues in a
19 cytokine release syndrome that can result in widespread damage to
20 other organs, including permanent injury to the kidneys and
21 neurologic injury. These complications can manifest at an alarming
22 pace.
23

24

Among persons infected with SARS-CoV-2 and developing COVID-19,

25 severe disease systemic inflammation is associated with adverse outcomes l.

26 However, there is evidence that the use of corticosteroids have not shown benefit

27 and they might be more likely to cause harm when administered to persons with 28 ARDS caused by COVID-19m. Similar to influenza infection, acute lung injury and

5

Case 2:20-cv-10949-LVP-MJH ECF No. 1-6 filed 04/17/20 PageID.160 Page 9 of 14

1 acute respiratory distress syndrome are most likely caused by the respiratory 2 epithelial membrane dysfunction leading to acute respiratory distress syndrome l,n.

3 Preliminary evidence from case reports and small cases series from China and

4 South Korea confirm that there is minimal inflammation and evidence of cell 5 necrosis in the form of apoptosis of the respiratory epithelium o. The resultant

6 tissue hypoxia is responsible and potential concomitant bacterial sepsis contribute

7 to multiorgan dysfunction and death. If a patient with COVID-19 develops

8 myocarditis, cardiogenic shock caused by fulminant myocarditis may also 9 contribute to the overall occurrence of multiple organ failure k.

10 • Patients can show the first symptoms of infection in as little as two
11 days after exposure, and their condition can seriously deteriorate in
12 five days or sooner.
13

14

There is evidence of substantial undocumented infection facilitating the

15 rapid dissemination of novel coronavirus SARS-CoV-2 which is responsible for 16 79% of documented cases of COVID-19 in Chinao. Once an individual is exposed

17 to this virus from either a symptomatic individual (21% of cases) or from

18 asymptomatic individuals (79% of cases), the shortest incubation period is 3 days 19 with a median incubation period of 5.1 (95% CI 4.5 to 5.8 days)p. Overall, 97.5% 20 of persons who develop symptoms do so within 11.5 days of the initial exposure p.

21 Most persons with COVID-19 who develop severe disease do so immediately after 22 admission or within 3-5 days from their initial presentationc,q and represent 53% of 23 those requiring intensive care unit admissions and advanced supportive carec. At

24 my current institution, the two confirmed deaths occurred within 48 hours of

25 admission to the hospital.

26 • Most people in higher risk categories who develop serious disease
27 will need advanced support. This level of supportive care requires
28 highly specialized equipment that is in limited supply, and an entire

6

Case 2:20-cv-10949-LVP-MJH ECF No. 1-6 filed 04/17/20 PageID.161 Page 10 of 14

1

team of care providers, including 1:1 or 1:2 nurse to patient ratios,

2

respiratory therapists, and intensive care physicians. This level of

3

support can quickly exceed local health care resources.

4 There is sufficient evidence that the SARS-CoV-2 pandemic has an
5 overwhelming impact in healthcare utilization in all settings (China, South Korea,
6 Italy, France, Germany, and others). In the U.S.c, current evidence demonstrates 7
that COVID-19 can result in severe disease, including hospitalization (31%) and 8
admission to an intensive care unit (53% of ICU admissions). To respond to this 9
overwhelming demand in ICU admissions, there is a need for a multidisciplinary 10
approach that is time consuming and requires highly trained personnel including 11
pulmonary and critical care physicians, nurses, respiratory therapists, 12
phlebotomists, social workers, and case managers. The care of this group of 13
patients also requires subspecialists including nephrologists, infectious disease 14
physicians, hematologists, hospitalists, and others. Patients on mechanical 15
ventilation or requiring extracorporeal membrane oxygenation require additional 16
staff including perfusionists and 1:1 dedicated nursing care. Currently, medical 17
centers in many urban and rural settings in the U.S. are functioning at full capacity. 18
Therefore, preventing the occurrence of an outbreak within a detention facility 19
would reduce the risk of overwhelming local healthcare systems. Indeed, a 20
potential outbreak occurring within an immigration detention center, the number of 21
detainees who will require transfer outside the facility for specialized care may 22
exceed the capacity of local hospitals. This is particularly important in rural and 23
semirural settings where many immigration detention centers are located, and 24
where they may have contact with a limited number of surrounding medical 25
centers. 26

27 Conclusions:

28 There is a need to proactively consider alternative strategies to dilute the

7

Case 2:20-cv-10949-LVP-MJH ECF No. 1-6 filed 04/17/20 PageID.162 Page 11 of 14

1 potential community-based impact of an outbreak inside immigration detention

2 centers. Therefore, it is my professional view that releasing detainees/asylum

3 seekers on humanitarian parole from these centers constitutes a high-yield public

4 health intervention that may significantly lessen the impact of this outbreak not

5 only within detention centers but among the communities surrounding these

6 centers. In particular, targeting the release of persons in the age groups at risk of

7 severe disease and death; and persons with underlying medical conditions, may

8 lessen the human and financial costs that this outbreak may eventually impose on

9 ICE detention facilities nationwide. Responding to an outbreak requires significant

10 improvements in staffing, upgrading medical equipment, substantial supplies

11 including antibiotics, intravenous infusions, cardiac and respiratory monitors,

12 devices for oxygen supply, and personal protection supplies among persons at high

13 risk of severe COVID-19 disease.

14

15

A large outbreak of COVID-19 in an immigration detention facility would

16 put a tremendous strain on the medical system to the detriment of patients in the

17 communities surrounding these centers. It is reasonable to anticipate that there will

18 be the loss of additional lives that could have otherwise been saved.

19

20 I declare under penalty of perjury that the statements above are true and correct to

21 the best of my knowledge.

22

23 Date: March 21, 2020

24

25

26

27

28

Carlos Franco-Paredes, MD, MPH, DTMH (Gorgas) Associate Professor of Medicine

8

Case 2:20-cv-10949-LVP-MJH ECF No. 1-6 filed 04/17/20 PageID.163 Page 12 of 14

1 Division of Infectious Diseases

2

Department of Medicine Program Director Infectious Disease Fellowship

3 Training Program, University of Colorado

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

Case 2:20-cv-10949-LVP-MJH ECF No. 1-6 filed 04/17/20 PageID.164 Page 13 of 14

1 References

2

a. Johns Hopkins University. Coronavirus Resource Center Available at:

https://coronavirus.jhu.edu/map.html. Accessed: March 21, 2020.

3

b. CDC-Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease

(COVID-19) Available at: https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-

4

management-patients html). Accessed: March 21, 2020.

c. CDC COVID 19 Response Team. Severe outcomes among patients with coronavirus disease 2019

5

(COVID-19) – United States, February 12-March 16, 2020. Available at:

6

https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2 htm. Accessed: March 21, 2020. d. Rodriguez-Morales AJ, Cardona-Ospina JA, Gutiérrez-Ocampo E, Villamizar-Peña R, Holguin-Rivera Y,

7

Escalera-Antezana JP, Alvarado-Arnez LE, Bonilla-Aldana DK, Franco-Paredes C, Henao-Martinez AF,

Paniz-Mondolfi A, Lagos-Grisales GJ, Ramírez-Vallejo E, Suárez JA, Zambrano LI, Villamil-Gómez WE,

8

Balbin-Ramon GJ, Rabaan AA, Harapan H, Dhama K, Nishiura H, Kataoka H, Ahmad T, Sah R; Latin

American Network of Coronavirus Disease 2019-COVID-19 Research (LANCOVID-19). Electronic

9

address: https://www.lancovid.org. Clinical, laboratory and imaging features of COVID-19: A systematic

review and meta-analysis.Travel Med Infect Dis. 2020 Mar 13:101623. doi: 10.1016/j.tmaid.2020.101623.

10

[Epub ahead of print].

e. Foppian Palacios C, Opensahw JJ, Travassos MA. Influenza in U.S. detention centers- the desperate need

11

for immunization. N Engl J Med 2020; 382(9): 789-792.

f. Novel Coronavirus Pneumonia Emergency Response Epidemiology Teamexternal iconexternal icon. [The

12

Epidemiological Characteristics of an Outbreak of 2019 Novel Coronavirus Diseases (COVID-19) in

13

China]. Zhonghua Liu Xing Bing Xue Za Zhi. 2020;41(2):145–151. DOI:10.3760/cma.j.issn.02546450.2020.02.003.

14

g. Mart M, Ware LB. The long-lasting effects of the acute respiratory distress syndrome. Expert Rev Respir Dis 2020; https://doi.org/10.1080/17476348.2020.1743182.

15

h. Wu C, Chen X, Cai Y, Xia J, Zhou X, Xu S, Huang H, Zhang L, Zhou X, Du C, Zhang Y, Song J, Wang S, Chao Y, Yang Z, Xu J, Zhou X, Chen D, Xiong W, Xu L, Zhou F, Jiang J, Bai C, Zheng J, Song Y. Risk

16

Factors Associated With Acute Respiratory Distress Syndrome and Death in Patients With Coronavirus Disease 2019 Pneumonia in Wuhan, China. JAMA Intern Med. 2020 Mar 13. doi:

17

10.1001/jamainternmed.2020.0994. [Epub ahead of print]. i. Koh GC, Hoenig H. How should the rehabilitation community prepare for 2019-nCOV? Arch Phys Med

18

Rehabil 2020 Mar 16. Pii: S0003-9993(20)30153-2. Doi: 10.1016/j.apmr.2020.03.003. (Epub ahead of

print].

19

j. Chen C, Zhou Y, Wen WD. SARS-CoV-2: a potential novel etiology of fulminant myocarditis. Herz 2020;

March 5. https://doiorg/10.1007/s00059-020-04909-z.

20

k. Hu H, Ma F, Wei X, Fang Y. Coronavirus fulminant myocarditis saved with glucocorticoid and human

immunoglobulin. Eur Heat J 2020; Mar 16. [Epub ahead of print].

21

l. Li R, Pei S, Chen B, Song , Zhang T, Shaman J. Substantial undocumented infection facilitates the rapid

dissemination of novel coronavirus (SARS-CoV2). Science 10.1126/scienceabb3221 (2020).

22

m. Russell CD, Millar JE, Baillie JK. Clinical evidence does not support corticosteroid treatment for 2019-

nCoV lung injury. Lancet Infect Dis 2020; 395: 474-475.

23

n. Hoffmann M, Kleine-Weber H, Schroeder S, Krüger N, Herrler T, Erichsen S, Schiergens TS, Herrler

G, Wu NH, Nitsche A, Müller MA, Drosten C, Pöhlmann S SARS-CoV-2 Cell Entry Depends on ACE2

24

and TMPRSS2 and Is Blocked by a Clinically Proven Protease Inhibitor. Cell. 2020 Mar 4. pii: S0092-

8674(20)30229-4. doi: 10.1016/j.cell.2020.02.052. [Epub ahead of print]

25

o. Tian S, Hu W, Niu L, Liu H, Su H, Xiao SY. Pulmonary pathology of early phase 2019 novel coronavirus

(COVID-19) pneumonia in patients with lung cancer. J Thorac Oncol 2020;

26

https://doi.org/10.1016;j.tho.2020.02.010.

p. Lauer SA, Grantz KH, Bi Q, Jones FK, Zheng Q, Meredith HR, Azman AS, Reich NG, Lessler J.The

27

incubation period of coronavirus disease 2019 (COVID-19) from publicly reported confirmed cases:

28

estimation and application. Ann Intern Med 2020; March 10, doi: https://doi/org/107326/M20-0504. q. Korean Society of Infectious Diseases; Korean Society of Pediatric Infectious Diseases; Korean Society of

Epidemiology; Korean Society for Antimicrobial Therapy; Korean Society for Healthcare-associated

10

Case 2:20-cv-10949-LVP-MJH ECF No. 1-6 filed 04/17/20 PageID.165 Page 14 of 14

1

Infection Control and Prevention; Korea Centers for Disease Control and Prevention. Report on the

Epidemiological Features of Coronavirus Disease 2019 (COVID-19) Outbreak in the Republic of

2

Korea from January 19 to March 2, 2020. J Korean Med Sci. 2020 Mar 16;35(10):e112. doi:

10.3346/jkms.2020.35.e112.

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.166 Page 1 of 27
Exhibit 6

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.167 Page 2 of 27
Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities

This interim guidance is based on what is currently known about the transmission and severity of coronavirus disease 2019 (COVID-19) as of March 23, 2020.
The US Centers for Disease Control and Prevention (CDC) will update this guidance as needed and as additional information becomes available. Please check the following CDC website periodically for updated interim guidance: https://www.cdc.gov/coronavirus/2019-ncov/index.html.
This document provides interim guidance specific for correctional facilities and detention centers during the outbreak of COVID-19, to ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff, and visitors. Recommendations may need to be revised as more information becomes available.

In this guidance
• Who is the intended audience for this guidance?
• Why is this guidance being issued?
• What topics does this guidance include?
• Definitions of Commonly Used Terms
• Facilities with Limited Onsite Healthcare Services
• COVID-19 Guidance for Correctional Facilities
• Operational Preparedness
• Prevention
• Management
• Infection Control
• Clinical Care of COVID-19 Cases
• Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
• Verbal Screening and Temperature Check Protocols for Incarcerated/ Detained Persons, Staff, and Visitors

Who is the intended audience for this guidance?
This document is intended to provide guiding principles for healthcare and non-healthcare administrators of correctional and detention facilities (including but not limited to federal and state prisons, local jails, and detention centers), law enforcement agencies that have custodial authority for detained populations (i.e., US Immigration and Customs Enforcement and US Marshals Service), and their respective health departments, to assist in preparing for potential introduction, spread, and mitigation of COVID-19 in their facilities. In general, the document uses terminology referring to correctional environments but can also be applied to civil and pre-trial detention settings.
This guidance will not necessarily address every possible custodial setting and may not use legal terminology specific to individual agencies’ authorities or processes. The guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions. Facilities should contact CDC or their state, local, territorial, and/or tribal public health department if they need assistance in applying these principles or addressing topics that are not specifically covered in this guidance.

CS 316182-A  03/27/2020

cdc.gov/coronavirus

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.168 Page 3 of 27
Why is this guidance being issued?
Correctional and detention facilities can include custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting. The integration of these components presents unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors. Consistent application of specific preparation, prevention, and management measures can help reduce the risk of transmission and severe disease from COVID-19.
• Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.
• In most cases, incarcerated/detained persons are not permitted to leave the facility.
• There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.
• Persons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas.
• Options for medical isolation of COVID-19 cases are limited and vary depending on the type and size of facility, as well as the current level of available capacity, which is partly based on medical isolation needs for other conditions.
• Adequate levels of custody and healthcare staffing must be maintained to ensure safe operation of the facility, and options to practice social distancing through work alternatives such as working from home or reduced/alternate schedules are limited for many staff roles.
• Correctional and detention facilities can be complex, multi-employer settings that include government and private employers. Each is organizationally distinct and responsible for its own operational, personnel, and occupational health protocols and may be prohibited from issuing guidance or providing services to other employers or their staff within the same setting. Similarly, correctional and detention facilities may house individuals from multiple law enforcement agencies or jurisdictions subject to different policies and procedures.
• Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19.
• Because limited outside information is available to many incarcerated/detained persons, unease and misinformation regarding the potential for COVID-19 spread may be high, potentially creating security and morale challenges.
• The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and is determined by the supplies provided in the facility and by security considerations. Many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants.
• Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation.
CDC has issued separate COVID-19 guidance addressing healthcare infection control and clinical care of COVID-19 cases as well as close contacts of cases in community-based settings. Where relevant, community-focused guidance documents are referenced in this document and should be monitored regularly for updates, but they may require adaptation for correctional and detention settings.
2

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.169 Page 4 of 27
This guidance document provides additional recommended best practices specifically for correctional and detention facilities. At this time, different facility types (e.g., prison vs. jail) and sizes are not differentiated. Administrators and agencies should adapt these guiding principles to the specific needs of their facility.
What topics does this guidance include?
The guidance below includes detailed recommendations on the following topics related to COVID-19 in correctional and detention settings:
√ Operational and communications preparations for COVID-19
√ Enhanced cleaning/disinfecting and hygiene practices
√ Social distancing strategies to increase space between individuals in the facility
√ How to limit transmission from visitors
√ Infection control, including recommended personal protective equipment (PPE) and potential alternatives during PPE shortages
√ Verbal screening and temperature check protocols for incoming incarcerated/detained individuals, staff, and visitors
√ Medical isolation of confirmed and suspected cases and quarantine of contacts, including considerations for cohorting when individual spaces are limited
√ Healthcare evaluation for suspected cases, including testing for COVID-19
√ Clinical care for confirmed and suspected cases
√ Considerations for persons at higher risk of severe disease from COVID-19
Definitions of Commonly Used Terms
Close contact of a COVID-19 case—In the context of COVID-19, an individual is considered a close contact if they a) have been within approximately 6 feet of a COVID-19 case for a prolonged period of time or b) have had direct contact with infectious secretions from a COVID-19 case (e.g., have been coughed on). Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
Cohorting—Cohorting refers to the practice of isolating multiple laboratory-confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group. Ideally, cases should be isolated individually, and close contacts should be quarantined individually. However, some correctional facilities and detention centers do not have enough individual cells to do so and must consider cohorting as an alternative. See Quarantine and Medical Isolation sections below for specific details about ways to implement cohorting to minimize the risk of disease spread and adverse health outcomes.
Community transmission of COVID-19—Community transmission of COVID-19 occurs when individuals acquire the disease through contact with someone in their local community, rather than through travel to an affected location. Once community transmission is identified in a particular area, correctional facilities and detention centers are more likely to start seeing cases inside their walls. Facilities should consult with local public health departments if assistance is needed in determining how to define “local community” in the context of COVID-19 spread. However, because all states have reported cases, all facilities should be vigilant for introduction into their populations.
3

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.170 Page 5 of 27
Confirmed vs. Suspected COVID-19 case—A confirmed case has received a positive result from a COVID-19 laboratory test, with or without symptoms. A suspected case shows symptoms of COVID-19 but either has not been tested or is awaiting test results. If test results are positive, a suspected case becomes a confirmed case.
Incarcerated/detained persons—For the purpose of this document, “incarcerated/detained persons” refers to persons held in a prison, jail, detention center, or other custodial setting where these guidelines are generally applicable. The term includes those who have been sentenced (i.e., in prisons) as well as those held for pre-trial (i.e., jails) or civil purposes (i.e, detention centers). Although this guidance does not specifically reference individuals in every type of custodial setting (e.g., juvenile facilities, community confinement facilities), facility administrators can adapt this guidance to apply to their specific circumstances as needed.
Medical Isolation—Medical isolation refers to confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission. Medical isolation ends when the individual meets pre-established clinical and/or testing criteria for release from isolation, in consultation with clinical providers and public health officials (detailed in guidance below). In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Staff are encouraged to use the term “medical isolation” to avoid confusion.
Quarantine—Quarantine refers to the practice of confining individuals who have had close contact with a COVID-19 case to determine whether they develop symptoms of the disease. Quarantine for COVID-19 should last for a period of 14 days. Ideally, each quarantined individual would be quarantined in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, the individual should be placed under medical isolation and evaluated for COVID-19. If symptoms do not develop, movement restrictions can be lifted, and the individual can return to their previous residency status within the facility.
Social Distancing—Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19. Additional information about social distancing, including information on its use to reduce the spread of other viral illnesses, is available in this CDC publication.
Staff—In this document, “staff” refers to all public sector employees as well as those working for a private contractor within a correctional facility (e.g., private healthcare or food service). Except where noted, “staff” does not distinguish between healthcare, custody, and other types of staff including private facility operators.
Symptoms—Symptoms of COVID-19 include fever, cough, and shortness of breath. Like other respiratory infections, COVID-19 can vary in severity from mild to severe. When severe, pneumonia, respiratory failure, and death are possible. COVID-19 is a novel disease, therefore the full range of signs and symptoms, the clinical course of the disease, and the individuals and populations most at risk for disease and complications are not yet fully understood. Monitor the CDC website for updates on these topics.
Facilities with Limited Onsite Healthcare Services
Although many large facilities such as prisons and some jails usually employ onsite healthcare staff and have the capacity to evaluate incarcerated/detained persons for potential illness within a dedicated healthcare space, many smaller facilities do not. Some of these facilities have access to on-call healthcare staff or providers who visit the facility every few days. Others have neither onsite healthcare capacity nor onsite medical isolation/quarantine space and must transfer ill patients to other correctional or detention facilities or local hospitals for evaluation and care.
4

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.171 Page 6 of 27
The majority of the guidance below is designed to be applied to any correctional or detention facility, either as written or with modifications based on a facility’s individual structure and resources. However, topics related to healthcare evaluation and clinical care of confirmed and suspected COVID-19 cases and their close contacts may not apply directly to facilities with limited or no onsite healthcare services. It will be especially important for these types of facilities to coordinate closely with their state, local, tribal, and/or territorial health department when they encounter confirmed or suspected cases among incarcerated/detained persons or staff, in order to ensure effective medical isolation and quarantine, necessary medical evaluation and care, and medical transfer if needed. The guidance makes note of strategies tailored to facilities without onsite healthcare where possible.
Note that all staff in any sized facility, regardless of the presence of onsite healthcare services, should observe guidance on recommended PPE in order to ensure their own safety when interacting with confirmed and suspected COVID-19 cases. Facilities should make contingency plans for the likely event of PPE shortages during the COVID-19 pandemic.
COVID-19 Guidance for Correctional Facilities
Guidance for correctional and detention facilities is organized into 3 sections: Operational Preparedness, Prevention, and Management of COVID-19. Recommendations across these sections can be applied simultaneously based on the progress of the outbreak in a particular facility and the surrounding community.
• Operational Preparedness. This guidance is intended to help facilities prepare for potential COVID-19 transmission in the facility. Strategies focus on operational and communications planning and personnel practices.
• Prevention. This guidance is intended to help facilities prevent spread of COVID-19 from outside the facility to inside. Strategies focus on reinforcing hygiene practices, intensifying cleaning and disinfection of the facility, screening (new intakes, visitors, and staff), continued communication with incarcerated/ detained persons and staff, and social distancing measures (increasing distance between individuals).
• Management. This guidance is intended to help facilities clinically manage confirmed and suspected COVID-19 cases inside the facility and prevent further transmission. Strategies include medical isolation and care of incarcerated/detained persons with symptoms (including considerations for cohorting), quarantine of cases’ close contacts, restricting movement in and out of the facility, infection control practices for individuals interacting with cases and quarantined contacts or contaminated items, intensified social distancing, and cleaning and disinfecting areas visited by cases.
Operational Preparedness
Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staff and incarcerated/detained persons about these preparations and how they may temporarily alter daily life.
Communication & Coordination
√ Develop information-sharing systems with partners. ο Identify points of contact in relevant state, local, tribal, and/or territorial public health departments before cases develop. Actively engage with the health department to understand in advance which entity has jurisdiction to implement public health control measures for COVID-19 in a particular correctional or detention facility.
ο Create and test communications plans to disseminate critical information to incarcerated/detained persons, staff, contractors, vendors, and visitors as the pandemic progresses.
5

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.172 Page 7 of 27
ο Communicate with other correctional facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among staff.
ο Where possible, put plans in place with other jurisdictions to prevent confirmed and suspected COVID-19 cases and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.
ο Stay informed about updates to CDC guidance via the CDC COVID-19 website as more information becomes known.
√ Review existing pandemic flu, all-hazards, and disaster plans, and revise for COVID-19. ο Ensure that physical locations (dedicated housing areas and bathrooms) have been identified to isolate confirmed COVID-19 cases and individuals displaying COVID-19 symptoms, and to quarantine known close contacts of cases. (Medical isolation and quarantine locations should be separate). The plan should include contingencies for multiple locations if numerous cases and/ or contacts are identified and require medical isolation or quarantine simultaneously. See Medical Isolation and Quarantine sections below for details regarding individual medical isolation and quarantine locations (preferred) vs. cohorting. ο Facilities without onsite healthcare capacity should make a plan for how they will ensure that suspected COVID-19 cases will be isolated, evaluated, tested (if indicated), and provided necessary medical care. ο Make a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity. ο Designate officials who will be authorized to make decisions about escalating or de-escalating response efforts as the epidemiologic context changes.
√ Coordinate with local law enforcement and court officials. ο Identify lawful alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of COVID-19 transmission. ο Explore strategies to prevent over-crowding of correctional and detention facilities during a community outbreak.
√ Post signage throughout the facility communicating the following: ο For all: symptoms of COVID-19 and hand hygiene instructions ο For incarcerated/detained persons: report symptoms to staff ο For staff: stay at home when sick; if symptoms develop while on duty, leave the facility as soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms including self-isolating at home, contacting their healthcare provider as soon as possible to determine whether they need to be evaluated and tested, and contacting their supervisor. ο Ensure that signage is understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
Personnel Practices
√ Review the sick leave policies of each employer that operates in the facility. ο Review policies to ensure that they actively encourage staff to stay home when sick. ο If these policies do not encourage staff to stay home when sick, discuss with the contract company. ο Determine which officials will have the authority to send symptomatic staff home.
6

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.173 Page 8 of 27
√ Identify staff whose duties would allow them to work from home. Where possible, allowing staff to work from home can be an effective social distancing strategy to reduce the risk of COVID-19 transmission. ο Discuss work from home options with these staff and determine whether they have the supplies and technological equipment required to do so. ο Put systems in place to implement work from home programs (e.g., time tracking, etc.).
√ Plan for staff absences. Staff should stay home when they are sick, or they may need to stay home to care for a sick household member or care for children in the event of school and childcare dismissals. ο Allow staff to work from home when possible, within the scope of their duties. ο Identify critical job functions and plan for alternative coverage by cross-training staff where possible. ο Determine minimum levels of staff in all categories required for the facility to function safely. If possible, develop a plan to secure additional staff if absenteeism due to COVID-19 threatens to bring staffing to minimum levels. ο Consider increasing keep on person (KOP) medication orders to cover 30 days in case of healthcare staff shortages.
√ Consider offering revised duties to staff who are at higher risk of severe illness with COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions including lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Facility administrators should consult with their occupational health providers to determine whether it would be allowable to reassign duties for specific staff members to reduce their likelihood of exposure to COVID-19.
√ Offer the seasonal influenza vaccine to all incarcerated/detained persons (existing population and new intakes) and staff throughout the influenza season. Symptoms of COVID-19 are similar to those of influenza. Preventing influenza cases in a facility can speed the detection of COVID-19 cases and reduce pressure on healthcare resources.
√ Reference the Occupational Safety and Health Administration website for recommendations regarding worker health.
√ Review CDC’s guidance for businesses and employers to identify any additional strategies the facility can use within its role as an employer.
Operations & Supplies
√ Ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility. ο Standard medical supplies for daily clinic needs ο Tissues ο Liquid soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. ο Hand drying supplies ο Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions) ο Cleaning supplies, including EPA-registered disinfectants effective against the virus that causes COVID-19
7

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.174 Page 9 of 27
ο Recommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls). See PPE section and Table 1 for more detailed information, including recommendations for extending the life of all PPE categories in the event of shortages, and when face masks are acceptable alternatives to N95s.
ο Sterile viral transport media and sterile swabs to collect nasopharyngeal specimens if COVID-19 testing is indicated
√ Make contingency plans for the probable event of PPE shortages during the COVID-19 pandemic, particularly for non-healthcare workers. ο See CDC guidance optimizing PPE supplies.
√ Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow. If soap and water are not available, CDC recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60% alcohol. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty.
√ Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing. (See Hygiene section below for additional detail regarding recommended frequency and protocol for hand washing.) ο Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing.
√ If not already in place, employers operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit tested for any respiratory protection they will need within the scope of their responsibilities.
√ Ensure that staff and incarcerated/detained persons are trained to correctly don, doff, and dispose of PPE that they will need to use within the scope of their responsibilities. See Table 1 for recommended PPE for incarcerated/detained persons and staff with varying levels of contact with COVID-19 cases or their close contacts.
Prevention
Cases of COVID-19 have been documented in all 50 US states. Correctional and detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies.
Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified. Both good hygiene practices and social distancing are critical in preventing further transmission.
Operations
√ Stay in communication with partners about your facility’s current situation. ο State, local, territorial, and/or tribal health departments ο Other correctional facilities
√ Communicate with the public about any changes to facility operations, including visitation programs.
8

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.175 Page 10 of 27
√ Restrict transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding. ο Strongly consider postponing non-urgent outside medical visits. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ Implement lawful alternatives to in-person court appearances where permissible.
√ Where relevant, consider suspending co-pays for incarcerated/detained persons seeking medical evaluation for respiratory symptoms.
√ Limit the number of operational entrances and exits to the facility.
Cleaning and Disinfecting Practices
√ Even if COVID-19 cases have not yet been identified inside the facility or in the surrounding community, begin implementing intensified cleaning and disinfecting procedures according to the recommendations below. These measures may prevent spread of COVID-19 if introduced.
√ Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates. ο Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones). ο Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs). ο Use household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19 as appropriate for the surface, following label instructions. This may require lifting restrictions on undiluted disinfectants. ο Labels contain instructions for safe and effective use of the cleaning product, including precautions that should be taken when applying the product, such as wearing gloves and making sure there is good ventilation during use.
√ Consider increasing the number of staff and/or incarcerated/detained persons trained and responsible for cleaning common areas to ensure continual cleaning of these areas throughout the day.
√ Ensure adequate supplies to support intensified cleaning and disinfection practices, and have a plan in place to restock rapidly if needed.
9

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.176 Page 11 of 27
Hygiene
√ Reinforce healthy hygiene practices, and provide and continually restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms and waiting rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).
√ Encourage all persons in the facility to take the following actions to protect themselves and others from COVID-19. Post signage throughout the facility, and communicate this information verbally on a regular basis. Sample signage and other communications materials are available on the CDC website. Ensure that materials can be understood by non-English speakers and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
ο Practice good cough etiquette: Cover your mouth and nose with your elbow (or ideally with a tissue) rather than with your hand when you cough or sneeze, and throw all tissues in the trash immediately after use.
ο Practice good hand hygiene: Regularly wash your hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing your nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage.
ο Avoid touching your eyes, nose, or mouth without cleaning your hands first. ο Avoid sharing eating utensils, dishes, and cups. ο Avoid non-essential physical contact.
√ Provide incarcerated/detained persons and staff no-cost access to: ο Soap—Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin, as this would discourage frequent hand washing.
ο Running water, and hand drying machines or disposable paper towels for hand washing ο Tissues and no-touch trash receptacles for disposal
√ Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions. Consider allowing staff to carry individual-sized bottles to maintain hand hygiene.
√ Communicate that sharing drugs and drug preparation equipment can spread COVID-19 due to potential contamination of shared items and close contact between individuals.
Prevention Practices for Incarcerated/Detained Persons
√ Perform pre-intake screening and temperature checks for all new entrants. Screening should take place in the sallyport, before beginning the intake process, in order to identify and immediately place individuals with symptoms under medical isolation. See Screening section below for the wording of screening questions and a recommended procedure to safely perform a temperature check. Staff performing temperature checks should wear recommended PPE (see PPE section below).
ο If an individual has symptoms of COVID-19 (fever, cough, shortness of breath):  Require the individual to wear a face mask.  Ensure that staff who have direct contact with the symptomatic individual wear recommended PPE.  Place the individual under medical isolation (ideally in a room near the screening location, rather than transporting the ill individual through the facility), and refer to healthcare staff for further evaluation. (See Infection Control and Clinical Care sections below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care.
10

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.177 Page 12 of 27
ο If an individual is a close contact of a known COVID-19 case (but has no COVID-19 symptoms):  Quarantine the individual and monitor for symptoms two times per day for 14 days. (See Quarantine section below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective quarantine and necessary medical care.
√ Implement social distancing strategies to increase the physical space between incarcerated/ detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms). Strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Not all strategies will be feasible in all facilities. Example strategies with varying levels of intensity include: ο Common areas:  Enforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area) ο Recreation:  Choose recreation spaces where individuals can spread out  Stagger time in recreation spaces  Restrict recreation space usage to a single housing unit per space (where feasible) ο Meals:  Stagger meals  Rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table)  Provide meals inside housing units or cells ο Group activities:  Limit the size of group activities  Increase space between individuals during group activities  Suspend group programs where participants are likely to be in closer contact than they are in their housing environment  Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out ο Housing:  If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.)  Arrange bunks so that individuals sleep head to foot to increase the distance between them  Rearrange scheduled movements to minimize mixing of individuals from different housing areas ο Medical:  If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider staggering sick call.  Designate a room near the intake area to evaluate new entrants who are flagged by the intake screening process for COVID-19 symptoms or case contact, before they move to other parts of the facility.
11

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.178 Page 13 of 27
√ Communicate clearly and frequently with incarcerated/detained persons about changes to their daily routine and how they can contribute to risk reduction.
√ Note that if group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.
√ Consider suspending work release programs and other programs that involve movement of incarcerated/detained individuals in and out of the facility.
√ Provide up-to-date information about COVID-19 to incarcerated/detained persons on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Reminders to report COVID-19 symptoms to staff at the first sign of illness
√ Consider having healthcare staff perform rounds on a regular basis to answer questions about COVID-19.
Prevention Practices for Staff
√ Remind staff to stay at home if they are sick. Ensure that staff are aware that they will not be able to enter the facility if they have symptoms of COVID-19, and that they will be expected to leave the facility as soon as possible if they develop symptoms while on duty.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all staff daily on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο In very small facilities with only a few staff, consider self-monitoring or virtual monitoring (e.g., reporting to a central authority via phone). ο Send staff home who do not clear the screening process, and advise them to follow CDCrecommended steps for persons who are ill with COVID-19 symptoms.
√ Provide staff with up-to-date information about COVID-19 and about facility policies on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Employers’ sick leave policy ο If staff develop a fever, cough, or shortness of breath while at work: immediately put on a face mask, inform supervisor, leave the facility, and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. ο If staff test positive for COVID-19: inform workplace and personal contacts immediately, and do not return to work until a decision to discontinue home medical isolation precautions is made. Monitor CDC guidance on discontinuing home isolation regularly as circumstances evolve rapidly. ο If a staff member is identified as a close contact of a COVID-19 case (either within the facility or in the community): self-quarantine at home for 14 days and return to work if symptoms do not develop. If symptoms do develop, follow CDC-recommended steps for persons who are ill with COVID-19 symptoms.
√ If a staff member has a confirmed COVID-19 infection, the relevant employers should inform other staff about their possible exposure to COVID-19 in the workplace, but should maintain confidentiality as required by the Americans with Disabilities Act. ο Employees who are close contacts of the case should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
12

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.179 Page 14 of 27
√ When feasible and consistent with security priorities, encourage staff to maintain a distance of 6 feet or more from an individual with respiratory symptoms while interviewing, escorting, or interacting in other ways.
√ Ask staff to keep interactions with individuals with respiratory symptoms as brief as possible.
Prevention Practices for Visitors
√ If possible, communicate with potential visitors to discourage contact visits in the interest of their own health and the health of their family members and friends inside the facility.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all visitors and volunteers on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο Staff performing temperature checks should wear recommended PPE. ο Exclude visitors and volunteers who do not clear the screening process or who decline screening.
√ Provide alcohol-based hand sanitizer with at least 60% alcohol in visitor entrances, exits, and waiting areas.
√ Provide visitors and volunteers with information to prepare them for screening. ο Instruct visitors to postpone their visit if they have symptoms of respiratory illness. ο If possible, inform potential visitors and volunteers before they travel to the facility that they should expect to be screened for COVID-19 (including a temperature check), and will be unable to enter the facility if they do not clear the screening process or if they decline screening. ο Display signage outside visiting areas explaining the COVID-19 screening and temperature check process. Ensure that materials are understandable for non-English speakers and those with low literacy.
√ Promote non-contact visits: ο Encourage incarcerated/detained persons to limit contact visits in the interest of their own health and the health of their visitors. ο Consider reducing or temporarily eliminating the cost of phone calls for incarcerated/detained persons. ο Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health and reduce exposure from direct contact with community visitors.
√ Consider suspending or modifying visitation programs, if legally permissible. For example, provide access to virtual visitation options where available. ο If moving to virtual visitation, clean electronic surfaces regularly. (See Cleaning guidance below for instructions on cleaning electronic surfaces.) ο Inform potential visitors of changes to, or suspension of, visitation programs. ο Clearly communicate any visitation program changes to incarcerated/detained persons, along with the reasons for them (including protecting their health and their family and community members’ health). ο If suspending contact visits, provide alternate means (e.g., phone or video visitation) for incarcerated/detained individuals to engage with legal representatives, clergy, and other individuals with whom they have legal right to consult.
NOTE: Suspending visitation would be done in the interest of incarcerated/detained persons’ physical health and the health of the general public. However, visitation is important to maintain mental health.
13

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.180 Page 15 of 27
If visitation is suspended, facilities should explore alternative ways for incarcerated/detained persons to communicate with their families, friends, and other visitors in a way that is not financially burdensome for them. See above suggestions for promoting non-contact visits.
√ Restrict non-essential vendors, volunteers, and tours from entering the facility.
Management
If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing cases and individuals with symptoms under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE.
Operations
√ Implement alternate work arrangements deemed feasible in the Operational Preparedness section.
√ Suspend all transfers of incarcerated/detained persons to and from other jurisdictions and facilities (including work release where relevant), unless necessary for medical evaluation, medical isolation/quarantine, care, extenuating security concerns, or to prevent overcrowding. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to appropriately isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ If possible, consider quarantining all new intakes for 14 days before they enter the facility’s general population (SEPARATELY from other individuals who are quarantined due to contact with a COVID-19 case). Subsequently in this document, this practice is referred to as routine intake quarantine.
√ When possible, arrange lawful alternatives to in-person court appearances.
√ Incorporate screening for COVID-19 symptoms and a temperature check into release planning. ο Screen all releasing individuals for COVID-19 symptoms and perform a temperature check. (See Screening section below.)  If an individual does not clear the screening process, follow the protocol for a suspected COVID-19 case—including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing.  If the individual is released before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care.  Before releasing an incarcerated/detained individual with COVID-19 symptoms to a communitybased facility, such as a homeless shelter, contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
14

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.181 Page 16 of 27
√ Coordinate with state, local, tribal, and/or territorial health departments. ο When a COVID-19 case is suspected, work with public health to determine action. See Medical Isolation section below. ο When a COVID-19 case is suspected or confirmed, work with public health to identify close contacts who should be placed under quarantine. See Quarantine section below. ο Facilities with limited onsite medical isolation, quarantine, and/or healthcare services should coordinate closely with state, local, tribal, and/or territorial health departments when they encounter a confirmed or suspected case, in order to ensure effective medical isolation or quarantine, necessary medical evaluation and care, and medical transfer if needed. See Facilities with Limited Onsite Healthcare Services section.
Hygiene
√ Continue to ensure that hand hygiene supplies are well-stocked in all areas of the facility. (See above.)
√ Continue to emphasize practicing good hand hygiene and cough etiquette. (See above.)
Cleaning and Disinfecting Practices
√ Continue adhering to recommended cleaning and disinfection procedures for the facility at large. (See above.)
√ Reference specific cleaning and disinfection procedures for areas where a COVID-19 case has spent time (below).
Medical Isolation of Confirmed or Suspected COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities with Limited Onsite Healthcare Services, or without sufficient space to implement effective medical isolation, should coordinate with local public health officials to ensure that COVID-19 cases will be appropriately isolated, evaluated, tested (if indicated), and given care.
√ As soon as an individual develops symptoms of COVID-19, they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.
√ Keep the individual’s movement outside the medical isolation space to an absolute minimum. ο Provide medical care to cases inside the medical isolation space. See Infection Control and Clinical Care sections for additional details. ο Serve meals to cases inside the medical isolation space. ο Exclude the individual from all group activities. ο Assign the isolated individual a dedicated bathroom when possible.
√ Ensure that the individual is wearing a face mask at all times when outside of the medical isolation space, and whenever another individual enters. Provide clean masks as needed. Masks should be changed at least daily, and when visibly soiled or wet.
√ Facilities should make every possible effort to place suspected and confirmed COVID-19 cases under medical isolation individually. Each isolated individual should be assigned their own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options.
15

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.182 Page 17 of 27
ο If cohorting is necessary:  Only individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort confirmed cases with suspected cases or case contacts.  Unless no other options exist, do not house COVID-19 cases with individuals who have an undiagnosed respiratory infection.  Ensure that cohorted cases wear face masks at all times.
√ In order of preference, individuals under medical isolation should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above. ο Safely transfer individual(s) to another facility with available medical isolation capacity in one of the above arrangements (NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
If the ideal choice does not exist in a facility, use the next best alternative.
√ If the number of confirmed cases exceeds the number of individual medical isolation spaces available in the facility, be especially mindful of cases who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other infected individuals. If cohorting is unavoidable, make all possible accommodations to prevent transmission of other infectious diseases to the higher-risk individual. (For example, allocate more space for a higher-risk individual within a shared medical isolation space.) ο Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Note that incarcerated/detained populations have higher prevalence of infectious and chronic diseases and are in poorer health than the general population, even at younger ages.
√ Custody staff should be designated to monitor these individuals exclusively where possible. These staff should wear recommended PPE as appropriate for their level of contact with the individual under medical isolation (see PPE section below) and should limit their own movement between different parts of the facility to the extent possible.
√ Minimize transfer of COVID-19 cases between spaces within the healthcare unit.
16

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.183 Page 18 of 27
√ Provide individuals under medical isolation with tissues and, if permissible, a lined no-touch trash receptacle. Instruct them to: ο Cover their mouth and nose with a tissue when they cough or sneeze ο Dispose of used tissues immediately in the lined trash receptacle ο Wash hands immediately with soap and water for at least 20 seconds. If soap and water are not available, clean hands with an alcohol-based hand sanitizer that contains at least 60% alcohol (where security concerns permit). Ensure that hand washing supplies are continually restocked.
√ Maintain medical isolation until all the following criteria have been met. Monitor the CDC website for updates to these criteria.
For individuals who will be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  The individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart
For individuals who will NOT be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  At least 7 days have passed since the first symptoms appeared
For individuals who had a confirmed positive COVID-19 test but never showed symptoms: ο At least 7 days have passed since the date of the individual’s first positive COVID-19 test AND ο The individual has had no subsequent illness
√ Restrict cases from leaving the facility while under medical isolation precautions, unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns. ο If an incarcerated/detained individual who is a COVID-19 case is released from custody during their medical isolation period, contact public health to arrange for safe transport and continuation of necessary medical care and medical isolation as part of release planning.
Cleaning Spaces where COVID-19 Cases Spent Time
Thoroughly clean and disinfect all areas where the confirmed or suspected COVID-19 case spent time. Note—these protocols apply to suspected cases as well as confirmed cases, to ensure adequate disinfection in the event that the suspected case does, in fact, have COVID-19. Refer to the Definitions section for the distinction between confirmed and suspected cases.
ο Close off areas used by the infected individual. If possible, open outside doors and windows to increase air circulation in the area. Wait as long as practical, up to 24 hours under the poorest air exchange conditions (consult CDC Guidelines for Environmental Infection Control in Health-Care Facilities for wait time based on different ventilation conditions), before beginning to clean and disinfect, to minimize potential for exposure to respiratory droplets.
ο Clean and disinfect all areas (e.g., cells, bathrooms, and common areas) used by the infected individual, focusing especially on frequently touched surfaces (see list above in Prevention section).
17

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.184 Page 19 of 27
√ Hard (non-porous) surface cleaning and disinfection ο If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection. ο For disinfection, most common EPA-registered household disinfectants should be effective. Choose cleaning products based on security requirements within the facility.  Consult a list of products that are EPA-approved for use against the virus that causes COVID-19. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, etc.).  Diluted household bleach solutions can be used if appropriate for the surface. Follow the manufacturer’s instructions for application and proper ventilation, and check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted. Prepare a bleach solution by mixing:
- 5 tablespoons (1/3rd cup) bleach per gallon of water or
- 4 teaspoons bleach per quart of water
√ Soft (porous) surface cleaning and disinfection ο For soft (porous) surfaces such as carpeted floors and rugs, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning:  If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely.  Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 and are suitable for porous surfaces.
√ Electronics cleaning and disinfection ο For electronics such as tablets, touch screens, keyboards, and remote controls, remove visible contamination if present.  Follow the manufacturer’s instructions for all cleaning and disinfection products.  Consider use of wipeable covers for electronics.  If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Additional information on cleaning and disinfection of communal facilities such can be found on CDC’s website.
√ Ensure that staff and incarcerated/detained persons performing cleaning wear recommended PPE. (See PPE section below.)
√ Food service items. Cases under medical isolation should throw disposable food service items in the trash in their medical isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from a COVID-19 cases can be washed with other individuals’ laundry. ο Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.185 Page 20 of 27
ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
√ Consult cleaning recommendations above to ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case.
Quarantining Close Contacts of COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity, or without sufficient space to implement effective quarantine, should coordinate with local public health officials to ensure that close contacts of COVID-19 cases will be effectively quarantined and medically monitored.
√ Incarcerated/detained persons who are close contacts of a confirmed or suspected COVID-19 case (whether the case is another incarcerated/detained person, staff member, or visitor) should be placed under quarantine for 14 days (see CDC guidelines). ο If an individual is quarantined due to contact with a suspected case who is subsequently tested for COVID-19 and receives a negative result, the quarantined individual should be released from quarantine restrictions.
√ In the context of COVID-19, an individual (incarcerated/detained person or staff) is considered a close contact if they: ο Have been within approximately 6 feet of a COVID-19 case for a prolonged period of time OR ο Have had direct contact with infectious secretions of a COVID-19 case (e.g., have been coughed on)
Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
√ Keep a quarantined individual’s movement outside the quarantine space to an absolute minimum. ο Provide medical evaluation and care inside or near the quarantine space when possible. ο Serve meals inside the quarantine space. ο Exclude the quarantined individual from all group activities. ο Assign the quarantined individual a dedicated bathroom when possible.
√ Facilities should make every possible effort to quarantine close contacts of COVID-19 cases individually. Cohorting multiple quarantined close contacts of a COVID-19 case could transmit COVID-19 from those who are infected to those who are uninfected. Cohorting should only be practiced if there are no other available options. ο If cohorting of close contacts under quarantine is absolutely necessary, symptoms of all individuals should be monitored closely, and individuals with symptoms of COVID-19 should be placed under medical isolation immediately. ο If an entire housing unit is under quarantine due to contact with a case from the same housing unit, the entire housing unit may need to be treated as a cohort and quarantine in place. ο Some facilities may choose to quarantine all new intakes for 14 days before moving them to the facility’s general population as a general rule (not because they were exposed to a COVID-19 case). Under this scenario, avoid mixing individuals quarantined due to exposure to a COVID-19 case with individuals undergoing routine intake quarantine.
19

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.186 Page 21 of 27
ο If at all possible, do not add more individuals to an existing quarantine cohort after the 14-day quarantine clock has started.
√ If the number of quarantined individuals exceeds the number of individual quarantine spaces available in the facility, be especially mindful of those who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other quarantined individuals. If cohorting is unavoidable, make all possible accommodations to reduce exposure risk for the higher-risk individuals. (For example, intensify social distancing strategies for higher-risk individuals.)
√ In order of preference, multiple quarantined individuals should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls, a solid door that closes fully, and at least 6 feet of personal space assigned to each individual in all directions ο As a cohort, in a large, well-ventilated cell with solid walls and at least 6 feet of personal space assigned to each individual in all directions, but without a solid door ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells creating at least 6 feet of space between individuals. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section to maintain at least 6 feet of space between individuals housed in the same cell. ο As a cohort, in individuals’ regularly assigned housing unit but with no movement outside the unit (if an entire housing unit has been exposed). Employ social distancing strategies related to housing in the Prevention section above to maintain at least 6 feet of space between individuals. ο Safely transfer to another facility with capacity to quarantine in one of the above arrangements
(NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
√ Quarantined individuals should wear face masks if feasible based on local supply, as source control, under the following circumstances (see PPE section and Table 1): ο If cohorted, quarantined individuals should wear face masks at all times (to prevent transmission from infected to uninfected individuals). ο If quarantined separately, individuals should wear face masks whenever a non-quarantined individual enters the quarantine space. ο All quarantined individuals should wear a face mask if they must leave the quarantine space for any reason. ο Asymptomatic individuals under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear face masks.
√ Staff who have close contact with quarantined individuals should wear recommended PPE if feasible based on local supply, feasibility, and safety within the scope of their duties (see PPE section and Table 1). ο Staff supervising asymptomatic incarcerated/detained persons under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear PPE.
20

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.187 Page 22 of 27
√ Quarantined individuals should be monitored for COVID-19 symptoms twice per day, including temperature checks. ο If an individual develops symptoms, they should be moved to medical isolation immediately and further evaluated. (See Medical Isolation section above.) ο See Screening section for a procedure to perform temperature checks safely on asymptomatic close contacts of COVID-19 cases.
√ If an individual who is part of a quarantined cohort becomes symptomatic: ο If the individual is tested for COVID-19 and tests positive: the 14-day quarantine clock for the remainder of the cohort must be reset to 0. ο If the individual is tested for COVID-19 and tests negative: the 14-day quarantine clock for this individual and the remainder of the cohort does not need to be reset. This individual can return from medical isolation to the quarantined cohort for the remainder of the quarantine period. ο If the individual is not tested for COVID-19: the 14-day quarantine clock for the remainder of the cohort must be reset to 0.
√ Restrict quarantined individuals from leaving the facility (including transfers to other facilities) during the 14-day quarantine period, unless released from custody or a transfer is necessary for medical care, infection control, lack of quarantine space, or extenuating security concerns.
√ Quarantined individuals can be released from quarantine restrictions if they have not developed symptoms during the 14-day quarantine period.
√ Meals should be provided to quarantined individuals in their quarantine spaces. Individuals under quarantine should throw disposable food service items in the trash. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from quarantined individuals can be washed with other individuals’ laundry. ο Individuals handling laundry from quarantined persons should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
Management of Incarcerated/Detained Persons with COVID-19 Symptoms
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity or without sufficient space for medical isolation should coordinate with local public health officials to ensure that suspected COVID-19 cases will be effectively isolated, evaluated, tested (if indicated), and given care.
√ If possible, designate a room near each housing unit for healthcare staff to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Incarcerated/detained individuals with COVID-19 symptoms should wear a face mask and should be placed under medical isolation immediately. Discontinue the use of a face mask if it inhibits breathing. See Medical Isolation section above.
21

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.188 Page 23 of 27
√ Medical staff should evaluate symptomatic individuals to determine whether COVID-19 testing is indicated. Refer to CDC guidelines for information on evaluation and testing. See Infection Control and Clinical Care sections below as well.
√ If testing is indicated (or if medical staff need clarification on when testing is indicated), contact the state, local, tribal, and/or territorial health department. Work with public health or private labs as available to access testing supplies or services. ο If the COVID-19 test is positive, continue medical isolation. (See Medical Isolation section above.) ο If the COVID-19 test is negative, return the individual to their prior housing assignment unless they require further medical assessment or care.
Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms
√ Provide clear information to incarcerated/detained persons about the presence of COVID-19 cases within the facility, and the need to increase social distancing and maintain hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19. ο Ensure that information is provided in a manner that can be understood by non-English speaking individuals and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
√ Implement daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that incarcerated/detained individuals are not notifying staff of symptoms. See Screening section for a procedure to safely perform a temperature check.
√ Consider additional options to intensify social distancing within the facility.
Management Strategies for Staff
√ Provide clear information to staff about the presence of COVID-19 cases within the facility, and the need to enforce social distancing and encourage hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19 from staff.
√ Staff identified as close contacts of a COVID-19 case should self-quarantine at home for 14 days and may return to work if symptoms do not develop. ο See above for definition of a close contact. ο Refer to CDC guidelines for further recommendations regarding home quarantine for staff.
Infection Control
Infection control guidance below is applicable to all types of correctional facilities. Individual facilities should assess their unique needs based on the types of exposure staff and incarcerated/ detained persons may have with confirmed or suspected COVID-19 cases.
√ All individuals who have the potential for direct or indirect exposure to COVID-19 cases or infectious materials (including body substances; contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air) should follow infection control practices outlined in the CDC Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. Monitor these guidelines regularly for updates.
22

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.189 Page 24 of 27
ο Implement the above guidance as fully as possible within the correctional/detention context. Some of the specific language may not apply directly to healthcare settings within correctional facilities and detention centers, or to facilities without onsite healthcare capacity, and may need to be adapted to reflect facility operations and custody needs.
ο Note that these recommendations apply to staff as well as to incarcerated/detained individuals who may come in contact with contaminated materials during the course of their work placement in the facility (e.g., cleaning).
√ Staff should exercise caution when in contact with individuals showing symptoms of a respiratory infection. Contact should be minimized to the extent possible until the infected individual is wearing a face mask. If COVID-19 is suspected, staff should wear recommended PPE (see PPE section).
√ Refer to PPE section to determine recommended PPE for individuals persons in contact with confirmed COVID-19 cases, contacts, and potentially contaminated items.
Clinical Care of COVID-19 Cases
√ Facilities should ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms. ο If a facility is not able to provide such evaluation and treatment, a plan should be in place to safely transfer the individual to another facility or local hospital. ο The initial medical evaluation should determine whether a symptomatic individual is at higher risk for severe illness from COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.
√ Staff evaluating and providing care for confirmed or suspected COVID-19 cases should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations.
√ Healthcare staff should evaluate persons with respiratory symptoms or contact with a COVID-19 case in a separate room, with the door closed if possible, while wearing recommended PPE and ensuring that the suspected case is wearing a face mask. ο If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Clinicians are strongly encouraged to test for other causes of respiratory illness (e.g., influenza).
√ The facility should have a plan in place to safely transfer persons with severe illness from COVID-19 to a local hospital if they require care beyond what the facility is able to provide.
√ When evaluating and treating persons with symptoms of COVID-19 who do not speak English, using a language line or provide a trained interpreter when possible.
Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
√ Ensure that all staff (healthcare and non-healthcare) and incarcerated/detained persons who will have contact with infectious materials in their work placements have been trained to correctly don, doff, and dispose of PPE relevant to the level of contact they will have with confirmed and suspected COVID-19 cases.
23

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.190 Page 25 of 27
ο Ensure that staff and incarcerated/detained persons who require respiratory protection (e.g., N95s) for their work responsibilities have been medically cleared, trained, and fit-tested in the context of an employer’s respiratory protection program.
ο For PPE training materials and posters, please visit the CDC website on Protecting Healthcare Personnel.
√ Ensure that all staff are trained to perform hand hygiene after removing PPE.
√ If administrators anticipate that incarcerated/detained persons will request unnecessary PPE, consider providing training on the different types of PPE that are needed for differing degrees of contact with COVID-19 cases and contacts, and the reasons for those differences (see Table 1). Monitor linked CDC guidelines in Table 1 for updates to recommended PPE.
√ Keep recommended PPE near the spaces in the facility where it could be needed, to facilitate quick access in an emergency.
√ Recommended PPE for incarcerated/detained individuals and staff in a correctional facility will vary based on the type of contact they have with COVID-19 cases and their contacts (see Table 1). Each type of recommended PPE is defined below. As above, note that PPE shortages are anticipated in every category during the COVID-19 response. ο N95 respirator
See below for guidance on when face masks are acceptable alternatives for N95s. N95 respirators should be prioritized when staff anticipate contact with infectious aerosols from a COVID-19 case. ο Face mask ο Eye protection—goggles or disposable face shield that fully covers the front and sides of the face ο A single pair of disposable patient examination gloves
Gloves should be changed if they become torn or heavily contaminated. ο Disposable medical isolation gown or single-use/disposable coveralls, when feasible
 If custody staff are unable to wear a disposable gown or coveralls because it limits access to their duty belt and gear, ensure that duty belt and gear are disinfected after close contact with the individual. Clean and disinfect duty belt and gear prior to reuse using a household cleaning spray or wipe, according to the product label.
 If there are shortages of gowns, they should be prioritized for aerosol-generating procedures, care activities where splashes and sprays are anticipated, and high-contact patient care activities that provide opportunities for transfer of pathogens to the hands and clothing of staff.
√ Note that shortages of all PPE categories are anticipated during the COVID-19 response, particularly for non-healthcare workers. Guidance for optimizing the supply of each category can be found on CDC’s website: ο Guidance in the event of a shortage of N95 respirators  Based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for staff engaging in activities that would expose them to respiratory aerosols, which pose the highest exposure risk. ο Guidance in the event of a shortage of face masks ο Guidance in the event of a shortage of eye protection ο Guidance in the event of a shortage of gowns/coveralls
24

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.191 Page 26 of 27
Table 1. Recommended Personal Protective Equipment (PPE) for Incarcerated/Detained Persons and Staff in a Correctional Facility during the COVID-19 Response

Classification of Individual Wearing PPE

N95 respirator

Face mask

Eye Protection

Gloves

Gown/ Coveralls

Incarcerated/Detained Persons

Asymptomatic incarcerated/detained persons (under Apply face masks for source control as feasible based on local supply, quarantine as close contacts of a COVID-19 case*) especially if housed as a cohort

Incarcerated/detained persons who are confirmed or

suspected COVID-19 cases, or showing symptoms of

–



–

–

–

COVID-19

Incarcerated/detained persons in a work placement

handling laundry or used food service items from a

–

–

–





COVID-19 case or case contact

Incarcerated/detained persons in a work placement Additional PPE may be needed based on

cleaning areas where a COVID-19 case has spent time the product label. See CDC guidelines for





more details.

Staff

Staff having direct contact with asymptomatic incarcerated/detained persons under quarantine as close contacts of a COVID-19 case* (but not performing temperature checks or providing medical care)

–

Face mask, eye protection, and gloves as local supply and scope of duties allow.

–

Staff performing temperature checks on any group

of people (staff, visitors, or incarcerated/detained persons), or providing medical care to asymptomatic

–

quarantined persons









Staff having direct contact with (including transport)

or offering medical care to confirmed or suspected

**

COVID-19 cases (see CDC infection control guidelines)







Staff present during a procedure on a confirmed

or suspected COVID-19 case that may generate respiratory aerosols (see CDC infection control



–







guidelines)

Staff handling laundry or used food service items from a COVID-19 case or case contact

–

–

–





Staff cleaning an area where a COVID-19 case has

Additional PPE may be needed based on

spent time

the product label. See CDC guidelines for





more details.

* If a facility chooses to routinely quarantine all new intakes (without symptoms or known exposure to a COVID-19 case) before integrating into the facility’s general population, face masks are not necessary.
** A NIOSH-approved N95 is preferred. However, based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for procedures that are likely to generate respiratory aerosols, which would pose the highest exposure risk to staff.

25

Case 2:20-cv-10949-LVP-MJH ECF No. 1-7 filed 04/17/20 PageID.192 Page 27 of 27
Verbal Screening and Temperature Check Protocols for Incarcerated/Detained Persons, Staff, and Visitors
The guidance above recommends verbal screening and temperature checks for incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody. Below, verbal screening questions for COVID-19 symptoms and contact with known cases, and a safe temperature check procedure are detailed. √ Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include
the following questions: ο Today or in the past 24 hours, have you had any of the following symptoms?  Fever, felt feverish, or had chills?  Cough?  Difficulty breathing? ο In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)?
√ The following is a protocol to safely check an individual’s temperature: ο Perform hand hygiene ο Put on a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), gown/coveralls, and a single pair of disposable gloves ο Check individual’s temperature ο If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned routinely as recommended by CDC for infection control. ο Remove and discard PPE ο Perform hand hygiene
26

Case 2:20-cv-10949-LVP-MJH ECF No. 1-8 filed 04/17/20 PageID.193 Page 1 of 5
Exhibit 7

4/4/2020 Case 2D:o2c0to-rscivn-N1Y0C9H4o9sp-iLtaVls,PJa-iMls, JanHd ShEeltCerFs CNalloo.n 1th-e8CityftioleTdake0M4o/1re7A/g2g0ressivPe aAcgtieonIDto.C1o9m4bat thPe aSpgreead2ofoCfo5ronavirus
Anyone can publish on Medium per our Policies, but we don’t fact-check every story. For more info about the coronavirus, see cdc.gov.
Doctors in NYC Hospitals, Jails, and Shelters Call on the City to Take More Aggressive Action to Combat the Spread of Coronavirus
Brad Lander Follow Mar 12 · 3 min read
From NYC Council Members Brad Lander and Ritchie Torres:

https://medium.com/@bradlander/doctors-in-nyc-hospitals-jails-and-shelters-call-on-the-city-to-take-more-aggressive-action-to-fb75f0b131c2

1/4

4/4/2020 Case 2D:o2c0to-rscivn-N1Y0C9H4o9sp-iLtaVls,PJa-iMls, JanHd ShEeltCerFs CNalloo.n 1th-e8CityftioleTdake0M4o/1re7A/g2g0ressivPe aAcgtieonIDto.C1o9m5bat thPe aSpgreead3ofoCfo5ronavirus
As public representatives, we have been talking with constituents, public health experts, schools, and city officials about how to balance the urgent need to slow the spread of coronavirus with the need to continue providing services, maintain public order, and lessen the hardships on families and vulnerable populations. In that spirit, we are sharing the following letter, provided to us by a group of doctors working in the City’s hospitals, jails, clinics and shelters, which calls for the City to rapidly take far more aggressive steps (as they term it: “enforced solidarity”) to halt community spread.
***
March 12, 2020
An Open Letter to Mayor de Blasio and City Officials
As doctors and public health officials working in the City’s hospitals, jails, clinics, and shelters, we are extremely anxious about the impact of the COVID-19 virus on vulnerable populations and by the City’s hesitance to take more dramatic action. Given the information we have about the exponential growth of the virus and the limited capacity of our health system to care for the number of people who will become sick and need care at the same time, we believe that aggressive measures must be taken now. Actions taken now to encourage and facilitate what we are calling enforced solidarity (a more accurate description than social distancing) will mitigate the impact of the virus on vulnerable populations and our health system.
We call on the City to:
Act immediately and boldly to slow the spread of the virus:
Suspend classes at public schools, while keeping schools open for emergency childcare for essential workers and vulnerable families. Keep childcare groups small, under 10 kids per group. Close schools immediately and reopen some as centers of family support and mitigation.
Order the NYPD to stop making low level arrests for violations and misdemeanors, in order to prevent the spread of the virus through our jails, courts, and precincts.

https://medium.com/@bradlander/doctors-in-nyc-hospitals-jails-and-shelters-call-on-the-city-to-take-more-aggressive-action-to-fb75f0b131c2

2/4

4/4/2020 Case 2D:o2c0to-rscivn-N1Y0C9H4o9sp-iLtaVls,PJa-iMls, JanHd ShEeltCerFs CNalloo.n 1th-e8CityftioleTdake0M4o/1re7A/g2g0ressivPe aAcgtieonIDto.C1o9m6bat thPe aSpgreead4ofoCfo5ronavirus
Order the courts to consider release for anyone in pretrial detention over 60. Administratively reschedule all criminal court proceedings for people who are not currently incarcerated. Reschedule all other court proceedings.
Urge businesses to have all non-essential workers work from home. Employers may have discretion over who is “essential,” but give guidance that only those providing services that must be maintained during a state of emergency should be considered essential.
Strongly advise people over 60 to avoid public transit.
Cancel all City events and revoke permits for events.
Ensure that medical personnel have adequate personal protective equipment.
Open a virus hotline for residents to be able to call a nurse and get a home visit if needed for quarantined people with moderate symptoms rather than bring people into the ER.
Order the Administration of Children’s Services (ACS) to stop requiring parents to attend groups and programs; halt non-emergency family court proceedings, guarantee tele-visitation for parents and children.
Take steps to strengthen the social safety net to protect vulnerable New Yorkers.
Turn schools into centers for community aid: food pantry, crisis navigation, and eventually satellite testing sites once we have capacity to test widely.
Urge the State to adopt paid sick leave for up to 2 weeks for all workers immediately.
Work with the State to institute an immediate moratorium on evictions and provide benefits for families and businesses.
Divert workers from other non-essential services to Naturally Occurring Retirement Communities and public housing to check on quarantined elderly. Can do by phone/remote to minimize unnecessary contact.
Increase Meals-on-Wheels service.

https://medium.com/@bradlander/doctors-in-nyc-hospitals-jails-and-shelters-call-on-the-city-to-take-more-aggressive-action-to-fb75f0b131c2

3/4

4/4/2020 Case 2D:o2c0to-rscivn-N1Y0C9H4o9sp-iLtaVls,PJa-iMls, JanHd ShEeltCerFs CNalloo.n 1th-e8CityftioleTdake0M4o/1re7A/g2g0ressivPe aAcgtieonIDto.C1o9m7bat thPe aSpgreead5ofoCfo5ronavirus
Increase staffing for the City’s mental health hotline to deal with increased anxiety and suicidality exacerbated by isolation and uncertainty. Take steps to address the digital divide, including providing burner cell phones at crisis centers and shelters for people who do not have cell phones. We are grateful for the City’s caution and attention to the impact of the coronavirus and associated response on vulnerable populations. We urge the City to begin taking more aggressive steps to shut down business as usual to slow community spread, while also increasing support for vulnerable populations. Sincerely, Doctors and public health officials working in NYC’s hospitals, jails, clinics, and shelters
Healthcare Jail Shelter Doctors
About Help Legal

https://medium.com/@bradlander/doctors-in-nyc-hospitals-jails-and-shelters-call-on-the-city-to-take-more-aggressive-action-to-fb75f0b131c2

4/4

Case 2:20-cv-10949-LVP-MJH ECF No. 1-9 filed 04/17/20 PageID.198 Page 1 of 10
Exhibit 8

Case 2:20-cv-10949-LVP-MJH ECF No. 1-9 filed 04/17/20 PageID.199 Page 2 of 10
March 25, 2020
Hon. Larry Hogan Governor of Maryland Annapolis, MD
Dear Governor Hogan:
We are writing as faculty members of the Johns Hopkins Bloomberg School of Public Health, School of Nursing and School of Medicine to express our urgent concern about the spread of COVID-19 in Maryland’s prisons, jails, and juvenile detention centers. As you know, COVID19 is highly contagious, difficult to prevent except through social distancing, and especially dangerous to individuals over age 60 or with a chronic disease. Moreover, recent data suggest that the virus can remain on surfaces for up to 72 hours, thus rendering social distancing less effective in circumstances where the virus is present.
Jails, prisons, detention facilities and other closed settings have long been known to be associated with high transmission probabilities for infectious diseases, including tuberculosis, multi-drug resistant tuberculosis, influenza, MRSA (methicillin resistant staph aureus), and viral hepatitis. Several deaths were reported in the US in immigration detention facilities associated with ARDS (acute respiratory distress syndrome) following influenza A, including a 16 year old immigrant child who died of untreated ARDS in custody in May 2019. ARDS is the lifethreatening complication of COVID-19 disease and has a 30% mortality given ideal care. A correctional officer in New York has also died of the disease.
The close quarters of jails and prisons, the inability to employ effective social distancing measures, and the many high-contact surfaces within facilities, make transmission of COVID-19 more likely. Soap and hand sanitizers are not freely available in some facilities. Hand sanitizers like Purell, are banned in many facilities, because they contain alcohol. Further, for incarcerated individuals who are infected or very sick, the ability properly to treat them and save their lives is very limited. Testing kits are in short supply, and prisons and jails have limited options for proper respiratory isolation.
A number of features of these facilities can heighten risks for exposure, acquisition, transmission, and clinical complications of COVID-19 and other infectious diseases. These include physical/mechanical risks such as overcrowding, population density in close confinement, insufficient ventilation, shared toilets, showers, and eating environments and limited availability of hygiene and personal protective equipment such as masks and gloves in some facilities. The high rate of turnover and population mixing of staff and detainees also increases likelihoods of exposure. This has led to prison outbreaks of COVID-19 in multiple detention facilities in China, associated with introduction into facilities by staff.
These populations are also at additional risk, due to high rates of chronic health conditions; substance use; mental health issues; and, particularly in prisons, aging and chronically ill populations who may be vulnerable to more severe illnesses after COVID-19 infection, and to death. Given that Maryland prisons, jails, and juvenile detention centers incarcerate high

Case 2:20-cv-10949-LVP-MJH ECF No. 1-9 filed 04/17/20 PageID.200 Page 3 of 10
numbers of marginalized populations and African Americans will be disproportionately affected by these risks.
Prison, jail, and detention center staff may bring the virus into the facility and are also at risk of acquisition from infected incarcerated individuals. Once infected, staff may also transmit the virus back into the communities and to their families. As jail, prison, and detention center health care staff themselves get sick with COVID-19, workforce shortages will make it even more difficult to adequately address all the health care needs in facilities.
Every effort should be made to reduce exposure in jails and other detention facilities, and we appreciate the efforts thus far of administrators toward this goal. To ensure that there are no impediments for inmates to come forward when sick, health care must be available to inmates without co-pays. But there should also be efforts to reduce the state prison population as well. It may be extremely difficult, however, to achieve and sustain prevention of transmission in these closed settings and given the design feature of the facilities. Moreover, lockdowns and use of solitary confinement should not be used as a public health measure, both because they have limited effectiveness and because they are a severe infringement of the rights of incarcerated people. It is therefore an urgent priority in this time of national public health emergency to reduce the number of persons in detention as quickly as possible.
Treatment needs of infected incarcerated individuals also need to be met, including expanded arrangements with local hospitals. It is essential that these facilities, which are public institutions, be transparent about their plans for addressing COVID-19. Such transparency will help public health officials and families of incarcerated people know what facilities are doing, and it also can help jurisdictions across the state share information and best practices. Other counties across the country have shared their action plans with the public and Maryland should follow these examples.
We therefore urge you to take the following steps:
1. Require correctional facility administrators to make their plans for prevention and management of COVID-19 in their institutions publicly available, as the San Francisco Sheriff’s Department has done. Protocols should be in line with national CDC guidance. Frequently updated recommendations and model protocols are available from the National Commission on Correctional Health Care (https://www.ncchc.org/blog/covid-19-coronavirus-what-you-need-to-know-incorrections)
2. Ensure that intake screening protocols are updated to include COVID-specific questions.
3. Ensure the availability of sufficient soap and hand sanitizer for incarcerated individuals without charge; restrictions on alcohol (in hand sanitizers) should be suspended.
4. Implement other precautions to limit transmission within prisons and jails without relying on widespread use of lockdowns and solitary confinement. Additional precautions jointly issued by the Vera Institute of Justice and Community Oriented

Case 2:20-cv-10949-LVP-MJH ECF No. 1-9 filed 04/17/20 PageID.201 Page 4 of 10
Correctional Health Services are available at https://cochs.org/files/covid-19/covid19-jails-prison-immigration.pdf 5. Consider pre-trial detention only in genuine cases of security concerns. Persons held for non-payment of fees and fines, or because of insufficient funds to pay bail, or parole or probation violations, should be prioritized for release. No one in these categories should be sent to jail 6. Expedite consideration of all older incarcerated individuals and those with chronic conditions predisposing to severe COVID-19 disease (heart disease, lung disease, diabetes, immune-compromise) for parole or other form of release from prison, with alternative forms of supervision and with supports in the community once released. Clemency power and expanded authority in Maryland law for administrative parole should be employed. 7. Invest in increased resources for discharge planning and re-entry transitions to facilitate prison release of people under these revised policies. 8. Arrange for COVID-19 testing of incarcerated individuals and correctional facility workers who become ill. 9. Cease any collection of fees or co-pays or medical care. 10. Seek a Medicaid 1135 waiver to enable hospitals to provide an appropriate level of care to incarcerated individuals who are sick. See https://cochs.org/files/medicaid/COVID-19-Justicie-Involved-1135-Waiver.pdf
This pandemic is shedding a bright light on the extent of the connection between all members of society: jails, prisons and other detention facilities are not separate, but are fully integrated with our community. As public health experts, we believe these steps are essential to support the health of incarcerated individuals, who are some of the most vulnerable people in our society; the vital personnel who work in prisons and jail; and all people in the state of Maryland. Our compassion for and treatment of these populations impact us all.
Thank you very much.
This letter represents the views of the following signatories, and do not necessarily reflect the views of The Johns Hopkins University
Sincerely,
Patricia Davidson, Dean Johns Hopkins School of Nursing
Joshua Sharfstein, Vice Dean for Public Health Practice and Community Engagement Johns Hopkins Bloomberg School of Public Health
David Celentano, Chair Department of Epidemiology Johns Hopkins Bloomberg School of Public Health
David Peters, Chair Department of International Health Johns Hopkins Bloomberg School of Public Health

Case 2:20-cv-10949-LVP-MJH ECF No. 1-9 filed 04/17/20 PageID.202 Page 5 of 10
Colleen Barry, Chair Department of Health Policy & Management Johns Hopkins Bloomberg School of Public Health
Rajiv Rimal, Chair Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health
Marsha Wills-Karp, Chair Department of Environmental Health and Engineering Johns Hopkins Bloomberg School of Public Health
Karen Bandeen-Roche, Hurley Dorrier Professor & Chair Department of Biostatistics Johns Hopkins Bloomberg School of Public Health
M. Daniele Fallin, Chair Department of Mental Health Johns Hopkins Bloomberg School of Public Health
Jeffrey Kahn, Andreas C. Dracopoulos Director Johns Hopkins Berman Institute of Bioethics.
Leonard Rubenstein, Senior Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health
Carolyn Sufrin, Assistant Professor Department of Gynecology and Obstetrics Johns Hopkins School of Medicine
Susan Sherman, Professor Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health
Chris Beyrer, Desmond Tutu Professor of Public Health and Human Rights Department of Epidemiology Johns Hopkins Bloomberg School of Public Health
Gabriel Eber, Senior Associate Department of Epidemiology Johns Hopkins Bloomberg School of Public Health
cc: Robert Greene, Secretary of Department of Public Safety and Correctional Services David Blumberg, Chair, Maryland Parole Commission Sam Abed, Secretary, Department of Juvenile Services
For additional signature please see below

Case 2:20-cv-10949-LVP-MJH ECF No. 1-9 filed 04/17/20 PageID.203 Page 6 of 10

Carl Latkin, Professor Department of Health, Behavior and Society Johns Hopkins School of Public Health

Caleb Alexander, Practicing General Internist

David Dowdy, Associate Professor

Department of Epidemiology

Department of Epidemiology

Johns Hopkins Bloomberg School of Public Health Johns Hopkins Bloomberg School of Public Health

Stefan Baral, Associate Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Heather McKay, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Andrea Wirtz, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Amal Wanigatunga, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Renee M. Johnson, Associate Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Lorraine T. Dean, Assistant Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Curtis Meinert, Professor Emertius Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Corinne Joshu, Associate Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Moyses Szklo, Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Alden L. Gross, Associate Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Allison McFall, Research Associate Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Colleen Hanrahan, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Josef Coresh, Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Antonio J. Trujillo, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Sarah Murray, Assistant Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Li-Ching Lee, Senior Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Courtland Robinson, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Nancy Glass, Professor Johns Hopkins School of Nursing

Yusra Shawar, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Maria Merritt, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Hannah Tappis, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Alan Regenberg, Associate Faculty Johns Hopkins Berman Institute of Bioethics

Andrew Azman, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Tener Goodwin Veenema, Professor Johns Hopkins School of Nursing

Amelia Buttress, Assistant Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Katherine Smith, Professor Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Ju Nyeong Park, Assistant Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Sean Allen, Assistant Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Carol Underwood, Assistant Professor Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Zoé Hendrickson, Assistant Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Jennifer L. Glick, Assistant Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Graham Mooney, Associate Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health Johns Hopkins School of Medicine

Janet Holbrook, Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Stella Babalola, Associate Professor Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Margaret E. Ensminger, Professor Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Elizabeth Hazel, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Safia Jiwani, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Angela KC, Associate Faculty Johns Hopkins Center for Global Health Johns Hopkins Bloomberg School of Public Health

Kawsar Talaat, Assistant Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Seema Subedi, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Linnea Zimmerman, Assistant Professor Department of Population, Family, and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Henry Perry, Senior Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Case 2:20-cv-10949-LVP-MJH ECF No. 1-9 filed 04/17/20 PageID.204 Page 7 of 10

Alain Labrique, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Jean H. Humphrey, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Joanne Katz, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Cyrus Engineer, Associate Chair Academic Programs Johns Hopkins Bloomberg School of Public Health

Priyanka Agrawal, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Daniela C. Rodriguez, Associate Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Talata Sawadogo-Lewis, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Lara Ho, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Sara Benjamin-Neelon, Associate Professor Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Rupali J. Limaye, Associate Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Shaun Truelove, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Matthew Fentress, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Caroline Moreau, Associate Professor Department of Population, Family, and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Pamela Surkan, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Svea Closser, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Melissa A. Marx, Assistant Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Susan Rifkin, Senior Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Jean C. Sack, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Ummekulsoom Lalani, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Jessica Atwell, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Swetha Manochar, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

S. Wilson Beckham, Assistant Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Amita Gupta, Professor Johns Hopkins School of Medicine

Henry Kalter, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Allison Jeffery, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Janice Bowie, Professor Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Yunhee Kang, Assisant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Gulam Kibria, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Lori Heise, Professor Department of Population, Family, and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Rebecca Heidkamp, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Justin Mayhew, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Jennifer Lee, Research Associate Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Cesar Ugarte-Gil, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Sabriya Linton, Assistant Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Amber Mehmood, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Peter Winch, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Dustin Gibson, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Melissa Davey-Rothwell, Associate Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Kathleen Norton, Administrative Director Johns Hopkins Center for American Indian Health

Tamar Mendelson, Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Candelaria Vergara Coggiano, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Anna Durbin, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Johannes Thrul, Assistant Professor

Kristin Mmari, Associate Professor

Ashley Sheffel, Assistant Scientist

Case 2:20-cv-10949-LVP-MJH ECF No. 1-9 filed 04/17/20 PageID.205 Page 8 of 10

Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Department of Population, Family, and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Department of International Health Johns Hopkins Bloomberg School of Public Health

Hanna Pickard, Bloomberg Distinguished Professor William Robert Brieger, Professor

Department of Philosophy

Department of International Health

Berman Institute of Bioethics

Johns Hopkins Bloomberg School of Public Health

Kristen Hurley, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Judith Bass, Associate Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Halida Akhter, Senior Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Nicholas Reed, Assistant Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Alan Scott, Professor Department of Molecular Microbiology and Immunology Johns Hopkins Bloomberg School of Public Health

John Jackson, Assistant Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Hima Patel, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Donatella Massai, Senior Researcher Department of International Health Johns Hopkins Bloomberg School of Public Health

Robin McKenzie, Associate Professor of Medicine Johns Hopkins University School of Medicine

Michelle Colder Carras, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

David A Sack, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Harsha Rajashekharaiah, Research Associate Department of International Health, Center for Humanitarian Health Johns Hopkins Bloomberg School of Public Health

Ann Yelmokas McDermott, Associate Scientist Department of International Health Johns Hopkins School of Public Health

Hilary Bok, Associate Professor, Philosophy Berman Institute of Bioethics Krieger School of Arts and Sciences

Kate Wright, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Cui Yang, Assistant Professor Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Alexa Edmier, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Rebecca Fix, Assistant Scientist Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Smisha Agarwal, Assistant Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Michelle Kaufman, Assistant Professor Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Alene Kennedy-Hendricks, Assistant Scientist Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Stephen Tamplin, Associate Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public He

Sara Bennett, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Adam Koon, Assistant Scientist Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Nancy Kass, Vice-Provost and Professor of Bioethics and Public Health Johns Hopkins University and Bloomberg School of Public Health

Hojoon Sohn, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Vidhi Maniar, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Keith West, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Li Liu, Associate Professor Department of Population, Family and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Melinda Munos, Assistant Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Alain Koffi, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Terrinieka Powell, Associate Professor Department of Population, Family and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Sarah Dalglish, Associate Professor Department of International Health Johns Hopkins School of Public Health

Ghassan Hamra, Assistant Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Keri Althoff, Associate Professor Department of Epidemiology Johns Hopkins School of Public Health

Kathleen Page, Associate Professor Johns Hopkins School of Medicine

Elizabeth Stuart, Professor Departments of Mental Health, Biostatistics, and Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Case 2:20-cv-10949-LVP-MJH ECF No. 1-9 filed 04/17/20 PageID.206 Page 9 of 10

Beth McGinty, Associate Professor Department of Health, Policy and Management Johns Hopkins Bloomberg School of Public Health

Shruti Mehta, Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Yeeli Mui, Assistant Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Alex McCourt, Assistant Scientist Department of Health Policy & Management Johns Hopkins Bloomberg School of Public Health

Eric Bass, Professor of Medicine Johns Hopkins University School of Medicine

Karin Tobin, Associate Professor Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Lilly Engineer, Assistant Professor Department of Health Policy and Management Johns Hopkins School of Medicine and Bloomberg School of Public Health

Elizabeth Skinner, Senior Scientist Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Philip Anglewicz, Associate Professor Department of Population, Family and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Jennifer Wolff, Professor Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Joanne Rosen, Senior Lecturer Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Tricia Aung, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Sachini Bandara, Assistant Scientist Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Hossein Zare, Assistant Scientist Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Mark Van Natta, Associate Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Daniel Webster, Bloomberg Professor of American Health Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Danielle German, Associate Professor Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Cassandra Crifasi, Assistant Professor Center for Gun Policy and Research Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Emily Gurley, Associate Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Jonathan Golub, Professor Department of Medicine, Epidemiology, and International Health Johns Hopkins Bloomberg School of Public Health

Subhra Chakraborty, Associate Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Michael Rosenblum, Associate Professor Department of Biostatistics Johns Hopkins Bloomberg School of Public Health

Haneefa Saleem, Assistant Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Amy Knowlton, Professor Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Neha Shah, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Trang Nguyen, Assistant Scientist Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Ingo Ruczinski, Professor Department of Biostatistics Johns Hopkins Bloomberg School of Public Health

Krystal Lee, Research Associate Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Elizabeth Letourneau, Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Chiara Altare, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

William W Eaton, Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Diana Yeung, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Jia Ahmad, Research Associate Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Sheppard G. Kellam, Professor Emeritus Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Sarah Polk, Assistant Professor Centro SOL, Johns Hopkins School of Medicine

Kathleen Page, Associate Professor Johns Hopkins School of Medicine

Corinne Keet, Associate Professor Johns Hopkins School of Medicine Johns Hopkins Bloomberg School of Public Health

Rachel Chan Seay, Assistant Professor Department of Gynecology and Obstetrics Johns Hopkins School of Medicine

Amanda Latimore, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Avonne Connor, Assistant Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Gail Geller, Professor Department of Medicine Johns Hopkins University School of Medicine Berman Institute of Bioethics

Noel Mueller, Assistant Professor Department of Epidemiology Johns Hopkins School of Public Health

Case 2:20-cv-10949-LVP-MJH ECF No. 1-9 filed 04/17/20 PageID.207 Page 10 of 10

Michele Decker, Associate Professor Department of Population, Family and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Becky Genberg, Assistant Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Cecilia Tomori, Director of Global Public Health and Community Health Johns Hopkins School of Nursing

Anne Burke, Associate Professor Department of Gynecology and Obstetrics Johns Hopkins School of Medicine

Anthony D. So, Professor of the Practice Department of International Health Johns Hopkins Bloomberg School of Public Health

Baldeep Dhaliwal, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Shea Littlepage, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Julie Denison, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Joseph Carrese, Professor Johns Hopkins School of Medicine

Julie Evans, Research Associate Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Sheree Schwartz, Assistant Scientist Department of Epidemiology Johns Hopkins School of Public Health

Timothy Shields, Associate Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Paul Spiegel, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Case 2:20-cv-10949-LVP-MJH ECF No. 1-10 filed 04/17/20 PageID.208 Page 1 of 16
Exhibit 9

Case 2:20-cv-10949-LVP-MJH ECF No. 1-10 filed 04/17/20 PageID.209 Page 2 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

COREAS, et al.,

Petitioners-Plaintiffs, v. BOUNDS, et al,

Civil Action No.:

Respondents-Defendants.

DECLARATION OF Ranit Mishori, MD, MHS, FAAFP I, Ranit Mishori, make the following declaration based on my personal knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 that the following is true and correct. I. Background
1. I am Dr. Ranit Mishori. I am a senior medical advisor at Physicians for Human Rights (PHR), and Professor of Family Medicine at the Georgetown University School of Medicine, where I am the director of the department’s Global Health Initiatives, Health Policy fellowship and our practice-based research network. A fellow of the American Academy of Family Physicians and Diplomate of the American Board of Family Medicine, I did my residency training at the Georgetown University/Providence Hospital Family Medicine Residency program. I received my medical degree from Georgetown University School of Medicine and a master’s degree in International Health from the Johns Hopkins Bloomberg School of Public Health, in the Disease Control and Prevention Track (focusing on the science of how to halt the spread of infectious disease).

1

Case 2:20-cv-10949-LVP-MJH ECF No. 1-10 filed 04/17/20 PageID.210 Page 3 of 16
2. I am the faculty leader for Georgetown University School of Medicine’s Correctional Health Interest group, where I supervise medical students placed at various area jails, prisons and detention centers. In addition, I am the director of Georgetown University’s Asylum program which focuses on the care and medico-legal issues of asylum seekers, including immigration detention. I have written extensively and given talks and lectures about such issues nationally and internationally. In my role as senior medical advisor at PHR (and prior to that, as a consultant for PHR), I have reviewed and analyzed dozens of cases related to health outcomes of individuals in correctional facilities, and advised the organization and other partners (civil society, legal aid organizations and the media) about issues related to incarceration, including hunger strikes, medical care quality, communicable disease management, violence, and care of pregnant women in such settings.1
3. As an attending physician at the Georgetown University/Washington Hospital Center Family Medicine Residency Program, I work with urban underserved populations, including the homeless, formerly incarcerated individuals, immigrants and refugees. I routinely come in contact with victims of abuse, trauma and poverty where I regularly assess their medical as well as psycho-social needs in the context of their social-determinants of health (such as housing and incarceration).

1 See, e.g., Ranit Mishori, Risk Behind Bars: Coronavirus and Immigration Detention, The Hill (Mar. 17, 2020),

https://thehill.com/opinion/immigration/487986-risk-behind-bars-coronavirus-and-immigration-detention; Amanda

Holpuch, Coronavirus Inevitable in Prison-Like US Immigration Centers, Doctors Say, The Guardian (Mar. 11, 2020),

https://www.theguardian.com/world/2020/mar/11/coronavirus-outbreak-us-immigration-centers;

Abigail

Hauslohner, et al., Coronavirus Could Pose Serious Concern in ICE Jails, Immigration Courts, The Washington Post

(Mar. 12, 2020), https://www.washingtonpost.com/immigration/coronavirus-immigration jails/2020/03/12/44b5e56a-

646a-11ea-845d-e35b0234b136_story.html; Silvia Foster-Frau, Coronavirus Cases in Migrant Detention Facilities

Called ‘Inevitable’, Express News (Mar. 15, 2020) https://www.expressnews.com/news/us-world/border-

mexico/article/Whether-in-detention-or-in-Mexico-U-S-15129447.php.

2

Case 2:20-cv-10949-LVP-MJH ECF No. 1-10 filed 04/17/20 PageID.211 Page 4 of 16
4. For four years I was an elected member of the American Academy of Family Physicians’ Commission on the Health of the Public and Science, where I chaired the Public Health Issues sub-committee. During that time, I was a one of the lead authors of the Academy’s comprehensive position paper on Incarceration and Health.
5. My CV is attached as Exhibit A. II. COVID-19
6. The novel coronavirus, officially known as SARS-CoV-2 (Coronavirus), causes a disease known as COVID-19. COVID-19 has now reached pandemic status. As of March 24, 2020, according to the World Health Organization (WHO), more than 334,000 people have been diagnosed with COVID-19 around the world and 14,652 have died.2 In the United States, about 31,537 people have been diagnosed and more than 400 people have died as of the same date.3 The numbers of infection and death in the United States are likely underestimated due to the lack of test kits available.
7. The transmission of Coronavirus is expected to grow exponentially. Nationally, projections by the Centers for Disease Control and Prevention (CDC) indicate that over 200 million people in the United States could be infected with Coronavirus over the course of the pandemic without effective public health intervention, with as many as 1.5 million deaths in certain projections.
2 See Novel Coronavirus (COVID-19) Situation, World Health Organization, https://experience.arcgis.com/experience/685d0ace521648f8a5beeeee1b9125cd, accessed Mar. 18, 2020 (at noon EDT). 3 See Mitch Smith, et al., U.S. Coronavirus Map: Cases Now Reported in All 50 States, The New York Times, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html?searchResultPosition=1, accessed Mar. 18, 2020 (at noon EDT).
3

Case 2:20-cv-10949-LVP-MJH ECF No. 1-10 filed 04/17/20 PageID.212 Page 5 of 16
8. The novel coronavirus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but it also survives on surfaces for some period of time. The virus can cause severe damage to lung tissue, requiring an extensive period of rehabilitation, and in some cases, a permanent loss of respiratory capacity. The virus also targets the heart muscle, leading to myocarditis, or inflammation of the heart muscle. It is possible that people can transmit the virus before they start to show symptoms or for weeks after their symptoms resolve. In China, where Coronavirus originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. The “contagiousness” of this novel coronavirus—its R0 (the number of people who can get infected from a single infected person)—is twice that of the flu. Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. For this reason, only with aggressive testing for the virus can we track the disease, isolate those affected, and stop its spread.
9. COVID-19 is a serious disease, which can lead to respiratory failure, kidney failure, and death. Older patients and patients with chronic underlying conditions are at a particularly high risk for severe cases and complications. 4 The need for care, including intensive care, and the likelihood of death, is much higher from COVID-19 than from influenza. According to recent estimates, the fatality rate of people infected with COVID-19 is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems.
4 Fei Zhou, et al., Clinical Course and Risk Factors for Mortality of Adult Inpatients with COVID-19 in Wuhan, China, The Lancet (published online Mar. 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS01406736(20)30566-3/fulltext.
4

Case 2:20-cv-10949-LVP-MJH ECF No. 1-10 filed 04/17/20 PageID.213 Page 6 of 16
According to preliminary data from China, serious illness, sometimes resulting in death, occurs in up to 16% of cases, with a higher rate among those older and high-risk individuals. 5
10. The CDC previously identified underlying medical conditions that may increase the risk of serious COVID-19 for individuals of any age, including: blood disorders, chronic kidney or liver disease, immunosuppression, endocrine disorders (including diabetes), metabolic disorders, heart and lung disease, neurological and neurologic and neurodevelopmental conditions, and current or recent pregnancy.
11. Those in high-risk categories who do not die may have prolonged serious illness, for the most part requiring expensive hospital care, including ventilators that are likely to soon be in very short supply, and an entire team of care providers, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care physicians. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities. Patients who do not die from serious cases of COVID-19 may also face prolonged recovery periods, including extensive rehabilitation from neurological damage and loss of respiratory capacity.
12. Complications from COVID-19, including severe damage to lung, heart, liver, or other organs, can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner.
13. There is no vaccine to prevent COVID-19. There is no known cure or antiviral treatment for COVID-19 at this time.
5 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease Control and Prevention, accessed Mar. 14, 2020, https://www.cdc.gov/coronavirus/2019-ncov/summary.html.
5

Case 2:20-cv-10949-LVP-MJH ECF No. 1-10 filed 04/17/20 PageID.214 Page 7 of 16
14. COVID-19 prevention strategies include containment and mitigation. Containment requires identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. Unfortunately, due to the lack of testing availability, most public health experts agree that it is too late to effectively implement a containment strategy in the United States at-large.
15. As the infectious disease spreads in a community, public health demands mitigation strategies, which include scrupulous hand hygiene and social distancing. For that reason, public health officials have recommended extraordinary measures to combat the rapid spread of coronavirus. Schools, courts, collegiate and professional sports, theater and other congregate settings have been closed as part of this risk mitigation strategy. III. Detention Centers, Jails, & Prisons
16. The risk posed by infectious diseases in immigration detention facilities, including jails and prisons, is significantly higher than in the community, both in terms of risk of exposure and transmission and harm to individuals who become infected. There are several reasons this is the case, as delineated further below.
17. Globally, outbreaks of contagious diseases are all too common in confined detention settings and are more common than in the community at large. Though they contain a captive population, these settings are not isolated from exposure. ICE has temporarily suspended social visitation in all detention facilities.6 However, staff arrive and leave on a shift basis; there is no ability to adequately screen staff for new, asymptomatic infection. Contractors and vendors
6 ICE Guidance on Covid-19, U.S. Immigration and Customs Enforcement, accessed Mar. 18, 2020 (at 1:00 p.m. EDT), https://www.ice.gov/covid19.
6

Case 2:20-cv-10949-LVP-MJH ECF No. 1-10 filed 04/17/20 PageID.215 Page 8 of 16
also pass between communities and facilities and can bring infectious diseases into facilities. People are often transported to, from, and between facilities.
18. Jails, prisons and detention centers often do not have access to vital community health resources that can be crucial in identifying infectious diseases, including sufficient testing equipment and laboratories. This is especially true when, as now, there is a shortage in available test kits.
19. During an infectious disease outbreak, a containment strategy requires people who are ill to be isolated and that caregivers have adequate personal protective equipment (PPE). Jails and prisons are often under-resourced and ill-equipped to provide sufficient PPE for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak. Moreover, efforts to mitigate disease spread in jails, prisons and detention centers will help limit its transmission in the community, since staff members are able to come and go, and return to their family members at the end of their shifts. This is especially true when, as now, facemasks are already in short supply.
20. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people live in close, crowded quarters and must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater. Toilets, sinks, and showers are shared, without disinfection between use. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Detainees often have a small number of telephones that they share, and which form their only contact with the outside world—including
7

Case 2:20-cv-10949-LVP-MJH ECF No. 1-10 filed 04/17/20 PageID.216 Page 9 of 16
their family and lawyers. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
21. Additionally, jails and prisons are often unable to adequately provide the mitigation recommendations described above. During an infectious disease outbreak, people can protect themselves by washing hands. Detention centers, jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often underresourced and ill-equipped with sufficient hand soap and alcohol-based sanitizers for people detained in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons.
22. People incarcerated in detention centers, jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.7 This is because people in detention centers, jails and prisons, for a variety of reasons, have higher rates of chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and suppressed immune systems from HIV or other conditions, than people in the community.
23. Detention centers, jails and prisons are often poorly equipped to manage infectious disease outbreaks. Some detention centers, jails and prisons lack onsite medical facilities or 24hour medical care. The medical facilities at detention centers, jails and prisons are almost never sufficiently equipped to handle large outbreaks of infectious diseases. To prevent transmission of
7 Active Case Finding For Communicable Diseases in Prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
8

Case 2:20-cv-10949-LVP-MJH ECF No. 1-10 filed 04/17/20 PageID.217 Page 10 of 16
droplet-borne infectious diseases, people who are infected and symptomatic need to be isolated in specialized negative pressure rooms. Most detention centers, jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). ICE has admitted that not all of the detention centers it oversees have even one.8 In the course of an infectious disease outbreak, resources will become exhausted rapidly and any beds available will soon be at capacity.
24. Even assuming adequate space, solitary confinement is not an effective disease containment strategy. Isolation of people who are ill using solitary confinement is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms, air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and the staff. This makes both containing the illness and caring for those who have become infected much more difficult.
25. Infectious disease outbreaks, such as COVID-19, may exacerbate existing mental health conditions and contribute to the development of new mental health conditions.9 Mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation. Moreover, failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by an infectious
8 Brittny Mejia, ICE Says No Confirmed Coronavirus Among Detainees After 4 Test Negative, Los Angeles Times, accessed Mar. 18, 2020, https://www.latimes.com/california/story/2020-03-10/ice-says-no-detainees-havecoronavirus-four-being-tested 9 Brian Honermann, An “Epidemic Within an Outbreak:” The Mental Health Consequences of Infectious Disease Epidemics, O’Neill Institute for National and Global Health Law (Feb. 26, 2015), accessed Mar. 19, 2020, https://oneill.law.georgetown.edu/epidemic-within-outbreak-mental-health-consequences-infectious-diseaseepidemics/; Müller N, Infectious Diseases and Mental Health, Comorbidity of Mental and Physical Disorders; Shultz JM, Mental Health Consequences of Infectious Disease Outbreaks, accessed Mar. 19, 2020, https://www.urmc.rochester.edu/MediaLibraries/URMCMedia/flrtc/documents/Slides-MH-CONSEQUENCES-OFID-OUTBREAKSV2.pdf.
9

Case 2:20-cv-10949-LVP-MJH ECF No. 1-10 filed 04/17/20 PageID.218 Page 11 of 16
disease outbreak such as COVID-19, may result in poor health outcomes and even death. The scientific evidence points to a bi-directional relationship between mental health conditions and infectious diseases. Not only are individuals with mental health conditions more at risk for communicable diseases, they are also harder to treat, once infected, due to the nature of their underlying mental health disorder. For individuals in these facilities, especially those with chronic mental health conditions, the experience of an epidemic and the lack of care while confined to small, crowded quarters can itself be traumatizing, compounding the trauma of incarceration.
26. A coronavirus brought into a detention facility can quickly spread among the dense detainee cohort. Soon many are sick—including high-risk groups such as those with chronic conditions—quickly overwhelming the already strained health infrastructure within the facility. This can also lead to a strain on the surrounding hospitals to which these individuals may be transferred.
27. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.10 Subsequent CDC investigation of 995 inmates and 235 staff members across the two facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.11 H1N1 is far less contagious than coronavirus. These scenarios occurred in the “best case” of influenza, a viral infection for which
10 Influenza Outbreaks at Two Correctional Facilities — Maine, March 2011, Centers for Disease Control and Prevention, Apr. 6, 2020, https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 11 David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-flu-widespread-in-prisons-and-jails-but-deathsare-few/.
10

Case 2:20-cv-10949-LVP-MJH ECF No. 1-10 filed 04/17/20 PageID.219 Page 12 of 16
there was an effective and available vaccine and antiviral medications, unlike the coronavirus COVID-19, for which there is currently neither.
28. In recent years in immigration detention facilities, overcrowding, poor hygiene measures, medical negligence, and poor access to resources and medical care have led to outbreaks of other infectious diseases as well, including mumps and chickenpox.
29. Additionally, as health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these conditions.
30. We have ample basis to conclude that detention settings are equally unprepared for the rapid spread of Coronavirus. Not surprisingly, Chinese prison officials report that over 500 COVID-19 cases in the current outbreak stemmed from the Hubei province prisons. In Israel, an entire prison was quarantined. Recognizing that the release of those incarcerated is the only solution, US jails in at least a dozen states have begun releasing inmates. In Iran, over 80,000 prisoners were released as a means of preventing death in government prisons. Major human rights organizations such as Human Rights Watch, Physicians for Human Rights and Amnesty International have issued calls to release those detained in immigration facilities to prevent the spread of coronavirus.
31. In my professional opinion, it is inevitable that SARS-CoV-2, the virus that causes COVID-19, will infect prisons, jails, and/or other immigration detention centers in the United States. This is consistent with the prediction of other experts that all detention centers, prisons and jails should anticipate. Given the shortage of COVID-19 tests in the United States, it is likely that detention facilities are unable to conduct aggressive, widespread testing to identify all positive
11

Case 2:20-cv-10949-LVP-MJH ECF No. 1-10 filed 04/17/20 PageID.220 Page 13 of 16
coronavirus cases. The ability to identify cases is crucial in order to be able to determine whether there is a risk for coronavirus transmission in an institution. IV. The Maryland Detention Facilities
32. Based on the description of the Maryland facilities contained in the Lopez Declaration, it is my professional opinion that the Maryland facilities are particularly susceptible to rapid spread of the virus and are not equipped to handle a coronavirus outbreak.
33. The living conditions described in the Lopez Declaration are not amenable to the necessary social distancing and hygiene measures that would be necessary to contain or minimize spread of the virus.
34. In particular, the fact that persons detained in those facilities share dorms, cells, living spaces, and bathroom space that is not disinfected between each use, and regularly interact with each other in narrow hallways and other areas where maintaining distance is not possible makes it all but inevitable that the virus would spread rapidly within the facility.
35. Because routine testing is not being undertaken at the facility, it is impossible to tell how many asymptomatic carriers of the disease may already be at the facility or to screen for new instances of the virus before an individual with COVID-19 becomes symptomatic. Since testing is not widely available, it is highly unlikely that the facility would even be able to keep up with the need to test individuals exhibiting symptoms for the virus. Rapid spread of the virus within the facility is therefore extremely likely.
36. The fact that medical units are shared spaces exacerbates this problem, as there appears to be no way to isolate individuals infected with the virus when this becomes necessary. The fact that there is only a small amount of space available in the medical unit makes it highly
12

Case 2:20-cv-10949-LVP-MJH ECF No. 1-10 filed 04/17/20 PageID.221 Page 14 of 16
unlikely that the facility could accommodate expanded need for services as a result of a coronavirus outbreak.
37. Moreover, the absence of 24-hour onsite medical facilities, the minimal and parttime nature of medical staffing, and that detainees appear to have had difficulties accessing routine medical care in the past renders it highly unlikely that the facility would be able to provide appropriate screening or treatment should that become necessary.
38. Based on the description of the facilities I have reviewed, it is my professional opinion that an outbreak is highly likely and that the consequences of rampant COVID-19 infection in the facility would be disastrous, especially for high-risk individuals like the plaintiffs in this case. V. Specific Cases.
39. The two plaintiffs in this lawsuit present with personal health characteristics that put them at high risk for complications from COVID-19 should they be exposed to the virus in detention.
40. Mr. Coreas, who suffers from Diabetes is also at a higher risk for complications due to this chronic medical condition. According to the CDC and the American Diabetes Association, those with diabetes are at a higher risk for COVID-19 complications, but also to deadly conditions resulting from the viral infection itself overwhelming the body, such as DKA – or diabetic ketoacidosis.
41. Mr. Cedillo suffers from hypertension. Early research has shown that those with a diagnosis of hypertension have worse symptoms and are more likely to die from COVID-19. VI. Conclusion and Recommendations
13

Case 2:20-cv-10949-LVP-MJH ECF No. 1-10 filed 04/17/20 PageID.222 Page 15 of 16
42. For the reasons above, it is my professional judgment that the plaintiffs, currently in ICE’s immigration detention centers, are at a significantly higher risk of infection with Coronavirus as compared to the population in the community, and that they are at a significantly higher risk of complications and poor outcomes if they do become infected. These outcomes include severe illness (including respiratory, cardiac and kidney failure) and even death.
43. Given that the only viable public health strategy available in the United States currently is risk mitigation, reducing the size of the population in detention centers, jails and prisons is crucially important to reducing the level of risk both for those within those facilities and for the community at large. Not doing so is not only inadvisable but also reckless given the public health realities we now face in the United States.
44. Even with the best-laid plans to address the spread of Coronavirus in detention facilities, the release of high-risk individuals is a key part of a risk mitigation strategy. In my professional opinion, the only viable public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety, especially given the lack of an effective vaccine for prevention or effective treatment for the disease at this stage. My professional opinion is consistent with the view of the medical profession as a whole that there are no conditions of confinement in carceral settings that can adequately manage the serious risk of harm for high-risk individuals during the COVID-19 pandemic.
45. Immediate release is crucial for the above-mentioned individuals. 46. Releasing people from incarceration is the best and safest way to prevent the spread of disease and reduce the threat to the most vulnerable incarcerated people. It is my professional opinion that this step is both necessary and urgent. The window of opportunity is rapidly narrowing
14

Case 2:20-cv-10949-LVP-MJH ECF No. 1-10 filed 04/17/20 PageID.223 Page 16 of 16
for mitigation of COVID-19 in these facilities. It is a matter of days, not weeks. Once a case of Coronavirus is identified in a facility, it will likely be too late to prevent a widespread outbreak.
47. Release of the most vulnerable people also reduces the burden on these facilities’ limited health care infrastructure, as it lessens the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time.
48. Release of the most vulnerable people – such as the plaintiffs in this case -- also reduces the burden on regional hospitals and health centers, which will otherwise bear the brunt of having to treat these individuals when infected, thus reducing the number of hospital beds and equipment available for the general population. VII. Expert Disclosures
49. None. I declare under penalty of perjury that the foregoing is true and correct. Executed this 24th day of March, 2020 in Washington, D.C. Ranit Mishori, M.D, MHS, FAAFP
15

Case 2:20-cv-10949-LVP-MJH ECF No. 1-11 filed 04/17/20 PageID.224 Page 1 of 4
Exhibit 10

Case 2:20-cv-10949-LVP-MJH ECF No. 1-11 filed 04/17/20 PageID.225 Page 2 of 4
Declaration of Robert B. Greifinger, MD
I, Robert B. Greifinger, declare as follows:
1. I am a physician who has worked in health care for prisoners for more than 30 years. I have managed the medical care for inmates in the custody of New York City (Rikers Island) and the New York State prison system. I have authored more than 80 scholarly publications, many of which are about public health and communicable disease. I am the editor of Public Health Behind Bars: from Prisons to Communities, a book published by Springer (a second edition is due to be published in early 2021); and co-author of a scholarly paper on outbreak control in correctional facilities.1
2. I have been an independent consultant on prison and jail health care since 1995. My clients have included the U.S. Department of Justice, Division of Civil Rights (for 23 years) and the U.S. Department of Homeland Security, Section for Civil Rights and Civil Liberties (for six years). I am familiar with immigration detention centers, having toured and evaluated the medical care in approximately 20 immigration detention centers, out of the several hundred correctional facilities I have visited during my career. I currently monitor the medical care in three large county jails for Federal Courts. My resume is attached as Exhibit A.
3. COVID-19 is a coronavirus disease that has reached pandemic status. As of today, according to the World Health Organization, more than 132,000 people have been diagnosed with COVID-19 around the world and 4,947 have died.2 In the United States, about 1,700 people have been diagnosed and 41 people have died thus far.3 These numbers are likely an underestimate, due to the lack of availability of testing.
4. COVID-19 is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death in older patients and patients with chronic underlying conditions. There is no vaccine to prevent COVID-19. There is no known cure or antiviral treatment for COVID-19 at this time. The only way to mitigate COVID-19 is to use scrupulous hand hygiene and social distancing.
5. People in the high-risk category for COVID-19, i.e., the elderly or those with underlying disease, are likely to suffer serious illness and death. According to preliminary data from China, 20% of people in high risk categories who contract COVID-19 have died.
1 Parvez FM, Lobato MN, Greifinger RB. Tuberculosis Control: Lessons for Outbreak Preparedness in Correctional Facilities. Journal of Correctional Health Care OnlineFirst, published on May 12, 2010 as doi:10.1177/1078345810367593. 2 See https://experience.arcgis.com/experience/685d0ace521648f8a5beeeee1b9125cd, accessed March 13, 2020. 3 See https://www nytimes.com/interactive/2020/us/coronavirus-us-cases html?searchResultPosition=1, accessed March 13, 2020.

Case 2:20-cv-10949-LVP-MJH ECF No. 1-11 filed 04/17/20 PageID.226 Page 3 of 4
6. Those who do not die have prolonged serious illness, for the most part requiring expensive hospital care, including ventilators that will likely be in very short supply.
7. The Centers for Disease Control and Prevention (CDC) has identified underlying medical conditions that may increase the risk of serious COVID-19 for individuals of any age: blood disorders, chronic kidney or liver disease, compromised immune system, endocrine disorders, including diabetes, metabolic disorders, heart and lung disease, neurological and neurologic and neurodevelopmental conditions, and current or recent pregnancy.
8. Social distancing and hand hygiene are the only known ways to prevent the rapid spread of COVID-19. For that reason, public health officials have recommended extraordinary measures to combat the spread of COVID-19. Schools, courts, collegiate and professional sports, theater and other congregate settings have been closed as part of risk mitigation strategy. At least one nursing home in the Seattle area has had cases of COVID-19 and has been quarantined.
9. The Seattle metropolitan area, hit hard by COVID, is the epicenter of the largest national outbreak at this time. Therefore, it is highly likely, and perhaps inevitable, that COVID19 will reach the immigration detention facility in Tacoma, Washington. Immigration courts and the ICE field office in Seattle have already closed this month due to staff exposure to COVID-19.
10. The conditions of immigration detention facilities pose a heightened public health risk to the spread of COVID-19, even greater than other non-carceral institutions.
11. Immigration detention facilities are enclosed environments, much like the cruise ships that were the site of the largest concentrated outbreaks of COVID-19. Immigration detention facilities have even greater risk of infectious spread because of conditions of crowding, the proportion of vulnerable people detained, and often scant medical care resources. People live in close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread of COVID-19. Toilets, sinks, and showers are shared, without disinfection between use. Food preparation and food service is communal, with little opportunity for surface disinfection. Staff arrive and leave on a shift basis; there is little to no ability to adequately screen staff for new, asymptomatic infection.
12. Many immigration detention facilities lack adequate medical care infrastructure to address the spread of infectious disease and treatment of high-risk people in detention. As examples, immigration detention facilities often use practical nurses who practice beyond the scope of their licenses; have part-time physicians who have limited availability to be on-site; and facilities with no formal linkages with local health departments or hospitals.
13. The only viable public health strategy available is risk mitigation. Even with the best-laid plans to address the spread of COVID-19 in detention facilities, the release of high-risk individuals is a key part of a risk mitigation strategy. In my opinion, the public health recommendation is to release high-risk people from detention, given the heightened risks

Case 2:20-cv-10949-LVP-MJH ECF No. 1-11 filed 04/17/20 PageID.227 Page 4 of 4
to their health and safety, especially given the lack of a viable vaccine for prevention or effective treatment at this stage. 14. To the extent that vulnerable detainees have had exposure to known cases with laboratory-confirmed infection with the virus that causes COVID-19, they should be tested immediately in concert with the local health department. Those who test negative should be released. 15. This release cohort can be separated into two groups. Group 1 could be released to home quarantine for 14 days, assuming they can be picked up from NWDC by their families or sponsors. Group 2 comprises those who cannot be easily transported to their homes by their families or sponsors. Group 2 could be released to a housing venue for 14 days, determined in concert with the Pierce County or Washington State Department of Health.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 14th day in March, 2020 in New York City, New York.
Robert B. Greifinger, M.D.

Case 2:20-cv-10949-LVP-MJH ECF No. 1-12 filed 04/17/20 PageID.228 Page 1 of 7
Exhibit 11

4/16/2020 Case 2:20-cv-10949-LVP-MJH ECWFhiNtmoer.-1E-x1ec2utivefiOlerdder02402/01-279/2(C0OVIDP-1a9)geID.229 Page 2 of 7

THE OFFICE OF GOVERNOR GRETCHEN WHITMER



WHITMER / NEWS / EXECUTIVE ORDERS

Executive Order 2020-29 (COVID-19)

EXECUTIVE ORDER

No. 2020-29

Temporary COVID-19 protocols for entry into Michigan Department of Corrections facilities and transfers to and from Department custody;
temporary recommended COVID-19 protocols and enhanced early-release authorization for county jails, local lockups, and juvenile detention centers
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identi ed in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.

On March 10, 2020, the Michigan Department of Health and Human Services identi ed the rst

two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive

Order 2020-4. This order declared a state of emergency across the state of Michigan under

section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act,

1976 PA 390, as amended, MCL 30.401-.421, and the Emergency Powers of the Governor Act of

1945, 1945 PA 302, as amended, MCL 10.31-.33.



The Emergency Management Act vests the governor with broad powers and duties to “cop[e]

with dangers to this state or the people of this state presented by a disaster or emergency,”

which the governor may implement through “executive orders, proclamations, and directives

having the force and e ect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the

Governor Act of 1945 provides that, after declaring a state of emergency, “the governor may

promulgate reasonable orders, rules, and regulations as he or she considers necessary to

protect life and property or to bring the emergency situation within the a ected area under

control.” MCL 10.31(1).



https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html

1/6

4/16/2020 Case 2:20-cv-10949-LVP-MJH ECWFhiNtmoer.-1E-x1ec2utivefiOlerdder02402/01-279/2(C0OVIDP-1a9)geID.230 Page 3 of 7
To mitigate the spread of COVID-19, protect the public health, and provide essential protections to vulnerable Michiganders who work at or are incarcerated in prisons, county jails, local lockups, and juvenile detention centers across the state, it is reasonable and necessary to implement limited and temporary COVID-19-related protocols and procedures regarding entry into facilities operated by the Michigan Department of Corrections and transfers to and from the Department’s custody; to recommend limited and temporary COVID-19-related protocols and measures for county jails, local lockups, and juvenile detention centers; and to temporarily suspend certain rules and procedures to facilitate the implementation of those recommendations.

Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:

1. The Michigan Department of Corrections (the “Department”) must continue to implement risk reduction protocols to address COVID-19 (“risk reduction protocols”), which the Department has already developed and implemented at the facilities it operates and which include the following:

a. Screening all persons arriving at or departing from a facility, including sta , incarcerated persons, vendors, and any other person entering the facility, in a manner consistent with guidelines issued by the Centers for Disease Control and Prevention (“CDC”). Such screening includes a temperature reading and obtaining information about travel and any contact with persons under investigation for COVID-19 infection.
 b. Restricting all visits, except for attorney-related visits, and conducting those visits without physical contact to the extent feasible.

c. Limiting o -site appointments for incarcerated persons to only appointments for urgent or emergency medical treatment.

d. Developing and implementing protocols for incarcerated persons who display symptoms

of COVID-19, including methods for evaluation and processes the Department of Health and Human Services (“DHHS”), and

for testing, noti isolation during

tceasttiionng,of

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html

2/6

4/16/2020 Case 2:20-cv-10949-LVP-MJH ECWFhiNtmoer.-1E-x1ec2utivefiOlerdder02402/01-279/2(C0OVIDP-1a9)geID.231 Page 4 of 7 while awaiting test results, and in the event of positive test results. These protocols should be developed in consultation with local public health departments.

e. Notifying DHHS of any suspected case that meets the criteria for COVID-19 through communication with the applicable local public health department.

f. Providing, to the fullest extent possible, appropriate personal protective equipment to all sta as recommended by the CDC.

g. Conducting stringent cleaning of all areas and surfaces, including frequently touched surfaces (such as doorknobs, handles, light switches, keyboards, etc.), on a regular and ongoing basis.

h. Ensuring access to personal hygiene products for incarcerated persons and correctional sta , including soap and water su cient for regular handwashing.

i. Ensuring that protective laundering protocols are in place.

j. Posting signage and continually educating on the importance of social distancing, handwashing, and personal hygiene.

k. Practicing social distancing in all programs and classrooms—meaning a distance of at least

six feet between people in any meeting, classroom, or other group.



Minimizing crowding, including interactions of groups of 10 or more people, which may include scheduling more times for meal and recreation to reduce person-to-person contact.

2. To mitigate the risk of COVID-19 spreading in county jails, strict compliance with the capacity and procedural requirements regarding county jail overcrowding states of
emergency in the County Jail Overcrowding Act (“CJOA”), 1982 PA 325, MCL 801.51 et seq.,

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html

3/6

4/16/2020 Case 2:20-cv-10949-LVP-MJH ECWFhiNtmoer.-1E-x1ec2utivefiOlerdder02402/01-279/2(C0OVIDP-1a9)geID.232 Page 5 of 7 is temporarily suspended. While this order is in e ect, all actions that would be authorized under the CJOA in the event of a declaration of a county jail overcrowding state of emergency are authorized and shall remain authorized without regard to any reduction in jail population or any other such limitations on the duration of authorization imposed by the CJOA.

3. Anyone authorized to act under section 2 of this order is strongly encouraged to consider early release for all of the following, so long as they do not pose a public safety risk:

a. Older people, people who have chronic conditions or are otherwise medically frail, people who are pregnant, and people nearing their release date.

b. Anyone who is incarcerated for a tra c violation.

c. Anyone who is incarcerated for failure to appear or failure to pay.

d. Anyone with behavioral health problems who can safely be diverted for treatment.

4. E ective immediately, all transfers into the Department’s custody are temporarily suspended. Beginning seven (7) days from the e ective date of this order, and no more than once every seven (7) days, a county jail or local lockup may request that the director of the Department determine that the jail or lockup has satisfactorily implemented risk reduction protocols as described in section 1 of this order. Upon inspection, if the director
 of the Department determines that a county jail or local lockup has satisfactorily
implemented risk reduction protocols, transfers from that jail or lockup will resume in accordance with the Department’s risk reduction protocols. The director of the Department may reject transfers that do not pass the screening protocol for entry into a facility operated by the Department.

5. Parole violators in the Department’s custody must not be transported to or lodged in a

county jail or local lockup unless the director of the Department has determined that such

county jail or local lockup has satisfactorily implemented risk reduction protocols as

described in section 1 of this order.



https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html

4/6

4/16/2020 Case 2:20-cv-10949-LVP-MJH ECWFhiNtmoer.-1E-x1ec2utivefiOlerdder02402/01-279/2(C0OVIDP-1a9)geID.233 Page 6 of 7
6. The State Budget O ce must immediately seek a legislative transfer so that counties may be reimbursed for lodging incarcerated persons that would have been transferred into the Department’s custody if not for the suspension of transfers described in section 4 of this order.

7. Juvenile detention centers are strongly encouraged to reduce the risk that those at their facilities will be exposed to COVID-19 by implementing as feasible the following measures:

a. Removing from the general population any juveniles who have COVID-19 symptoms.

b. Eliminating any form of juvenile detention or residential facility placement for juveniles unless a determination is made that a juvenile is a substantial and immediate safety risk to others.

c. Providing written and verbal communications to all juveniles at such facilities regarding COVID-19, access to medical care, and community-based support.

d. To the extent feasible, facilitating access to family, education, and legal counsel through electronic means (such as telephone calls or video conferencing) at no cost, rather than through in-person meetings.

8. Unless otherwise directed by court order, for juveniles on court-ordered probation, the

use of out-of-home con nement for technical violations of probation and any



requirements for in-person meetings with probation o cers are temporarily suspended.

9. This order is e ective immediately and continues through April 26, 2020 at 11:59 pm.

Given under my hand and the Great Seal of the State of Michigan.
https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html


5/6

4/16/2020 Case 2:20-cv-10949-LVP-MJH ECWFhiNtmoer.-1E-x1ec2utivefiOlerdder02402/01-279/2(C0OVIDP-1a9)geID.234 Page 7 of 7
MICHIGAN.GOV HOME ADA MICHIGAN NEWS POLICIES COPYRIGHT 2020 STATE OF MICHIGAN

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html


6/6

Case 2:20-cv-10949-LVP-MJH ECF No. 1-13 filed 04/17/20 PageID.235 Page 1 of 16
Exhibit 12

Case 2:20-cv-10949-LVP-MJH ECF No. 1-13
State Headquarters
2966 Woodward Avenue Detroit, MI 48201 Phone 313.578.6800 Fax 313.578.6811 E-mail aclu@aclumich.org www.aclumich.org

filed 04/17/20

PageID.236 Page 2 of 16
Detroit Office
645 Griswold Suite 3300 Penobscot Building Detroit, MI 48226 Phone 313.256.9833 Fax 313.965.0372 www.sado.org

March 31, 2020

Sent via email

Re: Reducing Your Jail Population Pursuant to Executive Order 2020-29

Dear Chief Judge:
The ACLU of Michigan (“ACLU”) and the State Appellate Defender Office (“SADO”) appreciate the efforts that many courts and law enforcement officials around the state have already taken to try to reduce jail populations in order to mitigate the probability of a disastrous COVID-19 outbreak in our jails and to reduce the impact when one inevitably occurs despite everyone’s best efforts. On March 29, 2020, Governor Whitmer signed Executive Order 202029, attached here for your convenience. The Order underscores the life-or-death threat that the COVID-19 pandemic poses to people incarcerated in county jails throughout Michigan, as well as to jail staff and the community at large. The Order suspends the capacity and procedural requirements of Michigan’s County Jail Overcrowding Act (“JOA”), thus empowering sheriffs and courts to swiftly but safely take bold and urgent steps to dramatically reduce jail populations to alleviate these risks.
We write to highlight the specific measures that sheriffs and courts can now take to further reduce jail populations under the JOA, as modified by EO 2020-29, while maintaining public safety. We note that Chief Justice Bridget McCormack and Sheriff Matt Saxton of the Michigan Sheriffs’ Association recently issued a press release urging courts and sheriffs to take similar measures, emphasizing that “[f]ollowing this advice WILL SAVE LIVES.” The ACLU and SADO agree.
It is important to note that all of the powers conferred by the JOA allow courts and sheriffs to act promptly and efficiently without conducting separate hearings in each individual case. And, as expressly authorized by EO 2020-29, you may immediately implement any or all of the JOA’s population reduction measures without regard to the capacity, procedural, and waiting-period requirements that strict compliance with the statute would otherwise entail. Accordingly, the following critical measures can now be taken immediately by judges and sheriffs working together—and as a matter of public health, must be taken without any delay—in order to reduce the risks of fatal COVID-19 outbreaks in our jails:
• Release of pre-trial detainees. The JOA permits the chief district judge, chief circuit judge, the sheriff (and in some jurisdictions a few additional judges) to vote to establish a “maximum value” for convertible cash bonds. The sheriff is then authorized to convert the bond of any person in jail because of inability to pay a bond up to the “maximum value” into a personal bond and to release that individual upon approval from the chief circuit judge. MCL 801.51a(1)(a), (2). Courts and sheriffs should immediately use this

Case 2:20-cv-10949-LVP-MJH ECF No. 1-13 filed 04/17/20 PageID.237 Page 3 of 16
power by establishing high “maximum values.” Then sheriffs should promptly provide lists of individuals who qualify for release because of their bond amount, and chief circuit judges should promptly and summarily approve such lists.
The JOA also provides ways to promptly and safely release most individuals whose cash bail exceeds the “maximum value.” The JOA allows chief judges to modify bond to facilitate the release of any pre-trial detainee, except for individuals accused of crimes against their romantic partner or children, who does not pose “a high risk to public safety.” MCL 801.56(2)(b), (3), (4)(b). Sheriffs should promptly provide lists of all individuals who are still in jail in a format that complies with MCL 801.56(2)(b). Chief judges should then make determinations about whether to modify bond as rapidly as possible and in recognition that an individual accused of a crime should not be presumed guilty and should not be presumed to be likely to re-offend in the absence of extraordinary facts suggesting a recurring pattern of violent activity.
• Release of prisoners who have served 85% of their sentence. The JOA permits sheriffs to release people who were convicted of most crimes immediately if they have already served 85% or more of their sentence, unless the chief circuit judge concludes that immediate release will present a threat to public safety. MCL 801.51a(1)(b). This option exists for all criminal convictions except “assaultive offense, sex offense, prison or jail escape offense, weapons offense, drunk driving offense, or a controlled substance offense except possession of less than 25 grams of a controlled substance.” Accordingly, sheriffs should immediately provide lists of eligible individuals who have served 85% of their sentence to chief circuit judges. Chief circuit judges should promptly order the release of all such people absent persuasive evidence that the individuals will be a danger to the public, evidence of which should be very rare given the offenses that are eligible for release.
• Reduction of sentences for other prisoners. The JOA provides three ways to reduce the sentences of people housed in county jails. First, section 56 states that sheriffs should provide a list of all individuals currently serving sentences in the jails to the chief circuit judges. MCL 800.56(2)(a). Chief circuit judges must then classify the list into two categories: individuals who present a “high risk to public safety” if released and those who do not. The chief judge can then set a minimum and maximum percentage amount by which sentences of the non-high risk individuals may be reduced, and the sheriff may immediately reduce the sentences of all such people by any amount within the range set by the chief judge. MCL 801.56(4)(a).
Second, sheriffs can unilaterally reduce the sentences of all people in a county jail by up to 30% without approval from a circuit judge. MCL 801.57.
Third, any sentencing judge “may suspend or reduce any validly imposed jail sentence imposed by that judge.” MCL 800.59b(1). Judges can delegate these powers to their chief judge. All judges should be encouraged to exercise this power (or delegate it to their chief judges) to reduce or suspend sentences of all people who do not pose an immediate high risk to public safety. In particular, judges should suspend sentences in
2

Case 2:20-cv-10949-LVP-MJH ECF No. 1-13 filed 04/17/20 PageID.238 Page 4 of 16
situations where the defendant has not yet begun to serve their sentence, so as to avoid introducing new individuals and risks into the carceral environment.
• Refuse to detain new people in the jails. The JOA authorizes sheriffs to defer admitting new detainees to the jail except for individuals convicted of certain, more serious, crimes, until the crisis has abated. Specifically, sheriffs may decline to admit new individuals to their jails unless such individuals have been convicted of “violent or assaultive crimes, sex offenses, escape from prison or jail, drunk driving offenses, controlled substance offenses except possession of less than 25 grams of a controlled substance, or weapons offenses.” MCL 801.58(1). Sheriffs are now able to exercise these powers to refuse to admit all new pre-trial detainees, people convicted of most offenses, as well as anyone charged with technical probation violations or failure to appear, unless the chief circuit judge affirmatively determines that detention is necessary because of a “threat to public safety.” Significantly, sheriffs can decline to admit new detainees under this section without first obtaining approval from the circuit court.
• Review and termination of agreements to house other detainees, especially ICE detainees. Section 55(f) of the JOA allows sheriffs to review agreements to house detainees from other governmental actors and authorizes termination of such arrangements. MCL 801.55(f). This allows sheriffs to revisit contracts to hold federal detainees, including ICE detainees. In our experience, most such contracts allow for immediate termination in the event of an “emergency.” Accordingly, sheriffs should consider immediately terminating such contracts and releasing ICE detainees as an efficient way to significantly reduce jail populations without imperiling public safety.1
In addition, local jails should not hold people on detainers for Immigrations and Customs Enforcement (ICE), which are not judicially issued warrants, but are merely requests to hold individuals for ICE. See Lopez-Lopez v. County of Allegan, 321 F Supp 3d 794, 799 (WD Mich., 2018) (“[C]ooperation with ICE detainers is discretionary rather than mandatory”).
In addition to the specific powers enumerated above, the JOA includes several other measures that courts and jails have at their disposal to reduce jail populations. For example, MCL 801.55(a)–(q) sets forth a panoply of alternatives to incarceration that can be utilized. A full copy of the relevant provisions of the JOA are attached to this letter for your convenience.
EO 2020-29 also offers additional categories of people for special consideration of release. These include older people, people who have chronic conditions or are otherwise medically frail, people who are pregnant, people nearing their release date, people incarcerated for traffic violations or for failure to appear or failure to pay, and people with behavioral health problems who can safely be diverted for treatment.
1 The standard Intergovernmental Service Agreement (IGSA) between county jails and ICE specifically provides that you can bring medically vulnerable individuals to ICE’s attention for release within 48 hours, and that limitations on releasing ICE detainees do not apply in “medical or emergency situations.”
3

Case 2:20-cv-10949-LVP-MJH ECF No. 1-13 filed 04/17/20 PageID.239 Page 5 of 16
Finally, EO 2020-29 complements the tools already in place to reduce jail populations. MCL 771.2(5) provides for modification of probation, where jail is a condition of the probation, and MCL 801.257 permits reductions of jail sentences by one quarter. SADO and the ACLU of Michigan appreciate that sheriffs and courts have already been working around the clock in many jurisdictions to improve public safety. EO 2020-29 provides a powerful new tool to accelerate those efforts, and rapidly deploying these new powers is urgent to protect both people in jails, and jail staff and their loved ones, as well as the health of the public at large. Our organizations would be eager to speak with you about ways to facilitate the swift and safe release of people in jails pursuant to the Governor’s order. Thank you for your consideration of these matters in a challenging time.
Sincerely, Dan Korobkin, Legal Director Phil Mayor, Senior Staff Attorney ACLU of Michigan dkorobkin@aclumich.org pmayor@aclumich.org Jonathan Sacks, Director State Appellate Defender Office JSacks@sado.org Cc: Chief Justice Bridget Mary McCormack (via email) Matt Saxton, Executive Director, Michigan Sheriffs’ Association
4

Case 2:20-cv-10949-LVP-MJH ECF No. 1-13 filed 04/17/20 PageID.240 Page 6 of 16
EXECUTIVE ORDER
No. 2020-29
Temporary COVID-19 protocols for entry into Michigan Department of Corrections facilities and transfers to and from Department custody; temporary recommended COVID-19 protocols and enhanced early-release authorization for county jails, local lockups, and juvenile detention centers
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.
On March 10, 2020, the Michigan Department of Health and Human Services identified the first two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401-.421, and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31-.33.
The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945 provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1).
To mitigate the spread of COVID-19, protect the public health, and provide essential protections to vulnerable Michiganders who work at or are incarcerated in prisons, county jails, local lockups, and juvenile detention centers across the state, it is reasonable and necessary to implement limited and temporary COVID-19-related protocols and procedures regarding entry into facilities operated by the Michigan Department of Corrections and transfers to and from the Department’s custody; to recommend limited and temporary COVID-19-related protocols and measures for county jails, local lockups, and juvenile detention centers; and to temporarily suspend certain rules and procedures to facilitate the implementation of those recommendations.
GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
PRINTED IN-HOUSE

Case 2:20-cv-10949-LVP-MJH ECF No. 1-13 filed 04/17/20 PageID.241 Page 7 of 16
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. The Michigan Department of Corrections (the “Department”) must continue to implement risk reduction protocols to address COVID-19 (“risk reduction protocols”), which the Department has already developed and implemented at the facilities it operates and which include the following:
(a) Screening all persons arriving at or departing from a facility, including staff, incarcerated persons, vendors, and any other person entering the facility, in a manner consistent with guidelines issued by the Centers for Disease Control and Prevention (“CDC”). Such screening includes a temperature reading and obtaining information about travel and any contact with persons under investigation for COVID-19 infection.
(b) Restricting all visits, except for attorney-related visits, and conducting those visits without physical contact to the extent feasible.
(c) Limiting off-site appointments for incarcerated persons to only appointments for urgent or emergency medical treatment.
(d) Developing and implementing protocols for incarcerated persons who display symptoms of COVID-19, including methods for evaluation and processes for testing, notification of the Department of Health and Human Services (“DHHS”), and isolation during testing, while awaiting test results, and in the event of positive test results. These protocols should be developed in consultation with local public health departments.
(e) Notifying DHHS of any suspected case that meets the criteria for COVID-19 through communication with the applicable local public health department.
(f) Providing, to the fullest extent possible, appropriate personal protective equipment to all staff as recommended by the CDC.
(g) Conducting stringent cleaning of all areas and surfaces, including frequently touched surfaces (such as doorknobs, handles, light switches, keyboards, etc.), on a regular and ongoing basis.
(h) Ensuring access to personal hygiene products for incarcerated persons and correctional staff, including soap and water sufficient for regular handwashing.
(i) Ensuring that protective laundering protocols are in place.
(j) Posting signage and continually educating on the importance of social distancing, handwashing, and personal hygiene.
(k) Practicing social distancing in all programs and classrooms—meaning a distance of at least six feet between people in any meeting, classroom, or other group.
2

Case 2:20-cv-10949-LVP-MJH ECF No. 1-13 filed 04/17/20 PageID.242 Page 8 of 16
(l) Minimizing crowding, including interactions of groups of 10 or more people, which may include scheduling more times for meal and recreation to reduce person-to-person contact.
2. To mitigate the risk of COVID-19 spreading in county jails, strict compliance with the capacity and procedural requirements regarding county jail overcrowding states of emergency in the County Jail Overcrowding Act (“CJOA”), 1982 PA 325, MCL 801.51 et seq., is temporarily suspended. While this order is in effect, all actions that would be authorized under the CJOA in the event of a declaration of a county jail overcrowding state of emergency are authorized and shall remain authorized without regard to any reduction in jail population or any other such limitations on the duration of authorization imposed by the CJOA.
3. Anyone authorized to act under section 2 of this order is strongly encouraged to consider early release for all of the following, so long as they do not pose a public safety risk:
(a) Older people, people who have chronic conditions or are otherwise medically frail, people who are pregnant, and people nearing their release date.
(b) Anyone who is incarcerated for a traffic violation.
(c) Anyone who is incarcerated for failure to appear or failure to pay.
(d) Anyone with behavioral health problems who can safely be diverted for treatment.
4. Effective immediately, all transfers into the Department’s custody are temporarily suspended. Beginning seven (7) days from the effective date of this order, and no more than once every seven (7) days, a county jail or local lockup may request that the director of the Department determine that the jail or lockup has satisfactorily implemented risk reduction protocols as described in section 1 of this order. Upon inspection, if the director of the Department determines that a county jail or local lockup has satisfactorily implemented risk reduction protocols, transfers from that jail or lockup will resume in accordance with the Department’s risk reduction protocols. The director of the Department may reject transfers that do not pass the screening protocol for entry into a facility operated by the Department.
5. Parole violators in the Department’s custody must not be transported to or lodged in a county jail or local lockup unless the director of the Department has determined that such county jail or local lockup has satisfactorily implemented risk reduction protocols as described in section 1 of this order.
6. The State Budget Office must immediately seek a legislative transfer so that counties may be reimbursed for lodging incarcerated persons that would have been transferred into the Department’s custody if not for the suspension of transfers described in section 4 of this order.
3

Case 2:20-cv-10949-LVP-MJH ECF No. 1-13 filed 04/17/20 PageID.243 Page 9 of 16
7. Juvenile detention centers are strongly encouraged to reduce the risk that those at their facilities will be exposed to COVID-19 by implementing as feasible the following measures:
(a) Removing from the general population any juveniles who have COVID-19 symptoms.
(b) Eliminating any form of juvenile detention or residential facility placement for juveniles unless a determination is made that a juvenile is a substantial and immediate safety risk to others.
(c) Providing written and verbal communications to all juveniles at such facilities regarding COVID-19, access to medical care, and community-based support.
(d) To the extent feasible, facilitating access to family, education, and legal counsel through electronic means (such as telephone calls or video conferencing) at no cost, rather than through in-person meetings.
8. Unless otherwise directed by court order, for juveniles on court-ordered probation, the use of out-of-home confinement for technical violations of probation and any requirements for in-person meetings with probation officers are temporarily suspended.
9. This order is effective immediately and continues through April 26, 2020 at 11:59 pm.
Given under my hand and the Great Seal of the State of Michigan.

Date: March 29, 2020 Time: 7:23 pm

___________________________________ GRETCHEN WHITMER GOVERNOR
By the Governor:
___________________________________ SECRETARY OF STATE
4

Case 2:20-cv-10949-LVP-MJH ECF No. 1-13 filed 04/17/20 PageID.244 Page 10 of 16
COUNTY JAIL OVERCROWDING STATE OF EMERGENCY (EXCERPT) Act 325 of 1982
801.51a County jail population exceeding 95% of jail's rated design capacity; actions by county sheriff; maximum value of outstanding bonds; duration; applicability of subsections (1) to (3). Sec. 1a. (1) In a county other than a county described in subsection (4), the sheriff of that county shall take
the following actions on the fifth consecutive day on which the general population of the county jail exceeds 95% of the jail's rated design capacity:
(a) The sheriff shall review the outstanding bonds for each prisoner. If the total of a prisoner's outstanding bonds does not exceed a maximum value determined as provided in subsection (2), the sheriff, subject to the approval of the chief circuit judge in that county, shall modify each outstanding bond for that prisoner to a personal recognizance bond in that same amount, issue to the prisoner a receipt similar to an interim bond receipt, and send a copy of the receipt to the court that set the bond.
(b) The following prisoners, except for any prisoner that the chief circuit judge in that county believes would present a threat to the public safety if released, shall be released immediately:
(i) Any sentenced prisoner who has served 85% or more of his or her sentence, unless he or she is serving a sentence for a violent or assaultive offense, sex offense, prison or jail escape offense, weapons offense, drunk driving offense, or a controlled substance offense except possession of less than 25 grams of a controlled substance.
(ii) Any prisoner detained in the county jail for a civil contempt adjudication for failure to pay child support who has no other charges pending against him or her.
(2) The maximum value of outstanding bonds, for purposes of subsection (1)(a), shall be determined by a majority vote of the following individuals, as applicable:
(a) In a single-county or multicounty judicial district, the chief circuit judge for the judicial circuit that includes that county, the chief district judge for that district, and the sheriff of the county.
(b) In a county containing 2 or more judicial districts, the chief circuit judge for the judicial circuit that includes that county, the chief probate judge for that county, the sheriff of the county, and 2 district judges chosen by the chief district judges sitting in that county.
(3) A determination made under subsection (2) remains in effect for 1 year after the date on which that determination was made.
(4) Subsections (1) to (3) do not apply to either of the following: (a) A county for which a county jail management plan has been approved under section 9a. (b) A county having a population greater than 650,000 as of the most recent federal decennial census that, on the effective date of this section, has implemented a written jail management plan in which the basis of the plan is jail bed allocation. The exception provided by this subsection applies only as long as that plan remains in effect.
History: Add. 2007, Act 140, Eff. Feb. 11, 2008.
Popular name: Jail Overcrowding Emergency Powers Act

Rendered Friday, March 13, 2020
© Legislative Council, State of Michigan

Page 1

Michigan Compiled Laws Complete Through PA 61 of 2020
Courtesy of www.legislature.mi.gov

Case 2:20-cv-10949-LVP-MJH ECF No. 1-13 filed 04/17/20 PageID.245 Page 11 of 16
COUNTY JAIL OVERCROWDING STATE OF EMERGENCY (EXCERPT) Act 325 of 1982
801.55 Reduction of prisoner population by sheriff, notified persons, and other judges; means. Sec. 5. The sheriff, the persons notified pursuant to section 4, and other circuit, district, and municipal
judges may attempt to reduce the prisoner population of the county jail through any available means which are already within the scope of their individual and collective legal authority, including, but not limited to, the following:
(a) Accelerated review and rescheduling of court dates. (b) Judicial review of bail for possible bail reduction, release on recognizance, or conditional release of prisoners in the county jail. (c) Prosecutorial pre-trial diversion. (d) Judicial use of probation, fines, community service orders, restitution, and delayed sentencing as alternatives to commitment to jail. (e) Use of work-release, community programs, and other alternative housing arrangements by the sheriff, if the programs and alternative housing arrangements are authorized by law. (f) Review of agreements which allow other units of government to house their prisoners in the overcrowded county jail to determine whether the agreements may be terminated. (g) Entering into agreements which allow the sheriff for the county in which the overcrowded county jail is located to house prisoners in facilities operated by other units of government. (h) Refusal by the sheriff to house persons who are not required by law to be housed in the county jail. (i) Acceleration of the transfer of prisoners sentenced to the state prison system, and prisoners otherwise under the jurisdiction of the department of corrections, to the department of corrections. (j) Judicial acceleration of pending court proceedings for prisoners under the jurisdiction of the department of corrections who will be returned to the department of corrections regardless of the outcome of the pending proceedings. (k) Reduction of waiting time for prisoners awaiting examination by the center for forensic psychiatry. (l) Alternative booking, processing, and housing arrangements, including the use of appearance tickets instead of booking at the county jail and the use of weekend arraignment, for categories of cases considered appropriate by the persons notified pursuant to section 4. (m) Acceptance by the courts of credit cards for payments of bonds, fines, and court costs. (n) Use of community mental health and private mental health resources in the county as alternatives to housing prisoners in the county jail for those prisoners who qualify for placement in the programs and for whom placement in the programs is appropriate. (o) Use of community and private substance abuse programs and other therapeutic programs as alternatives to housing prisoners in the county jail for those prisoners who qualify for placement in the programs and for whom placement in the programs is appropriate. (p) Preparation of a long-range plan for addressing the county jail overcrowding problem, including recommendations to the county board of commissioners on construction of new jail facilities and funding for construction or other options designed to alleviate the overcrowding problem. (q) Review of sentencing procedures, including the elimination of delays in preparing presentence reports for prisoners awaiting sentence, and staggering the dates on which prisoners will start serving a jail sentence to minimize fluctuating demands on jail capacity.
History: 1982, Act 325, Eff. Feb. 8, 1983;Am. 2007, Act 140, Eff. Feb. 11, 2008.
Popular name: Jail Overcrowding Emergency Powers Act

Rendered Friday, March 13, 2020
© Legislative Council, State of Michigan

Page 1

Michigan Compiled Laws Complete Through PA 61 of 2020
Courtesy of www.legislature.mi.gov

Case 2:20-cv-10949-LVP-MJH ECF No. 1-13 filed 04/17/20 PageID.246 Page 12 of 16

COUNTY JAIL OVERCROWDING STATE OF EMERGENCY (EXCERPT) Act 325 of 1982

801.56 Requirement of further actions; failure of certain actions to reduce population to level

prescribed in subsection (1); presenting prisoner information to chief circuit judge;

applicability of subsection (2)(b) to certain prisoners; review; classification of prisoners;

reduction of sentences; duration; report.

Sec. 6. (1) The further actions prescribed in subsections (2) to (5) and in sections 7 and 8 shall be required

unless the actions taken pursuant to section 5 reduce the county's jail population to the higher of the

following:

(a) 90% of rated design capacity or a percentage of rated design capacity less than 90% as set by a court

prior to February 8, 1983.

(b) A prisoner population such that the jail has the following number of empty beds:

(i) For a jail with a rated design capacity of less than 500 beds, at least 10 empty beds.

(ii) For a jail with a rated design capacity of 500 beds or more, at least 25 empty beds.

(2) If the actions taken pursuant to section 5 do not reduce the county jail's population to the level

prescribed in subsection (1) within 14 days after the declaration of the county jail overcrowding state of

emergency, the sheriff shall present to the chief circuit judge for the county in which the jail is located the

following information for each prisoner housed in the county jail on that date:

(a) For prisoners who are serving a sentence of imprisonment for conviction of 1 or more crimes:

(i) The name of each prisoner.

(ii) The offense for which the prisoner was convicted.

(iii) The length of sentence imposed for the prisoner.

(iv) The date on which the prisoner began serving his or her sentence.

(v) The date on which the prisoner will be released from the jail according to the terms of his or her

sentence, including computations for good time.

(vi) The name of the judge who imposed the sentence.

(b) For prisoners housed in the county jail, other than a prisoner described in subsection (3), who are not

serving a sentence of imprisonment for conviction of a crime:

(i) The name of the prisoner.

(ii) The offense for which the prisoner is being detained in the county jail.

(iii) The amount of the prisoner's bond.

(iv) The date on which the prisoner began his or her period of detention.

(v) The name of the judge who ordered the prisoner to be detained.

(3) Subsection (2)(b) does not apply to a prisoner who is detained in the county jail in connection with a

crime or an allegation of a crime in which the victim was a spouse, a former spouse, an individual with whom

he or she has had a child in common, an individual residing or having resided in the same household, or an

individual with whom he or she has or has had a dating relationship as that term is defined in section 2950 of

the revised judicature act of 1961, 1961 PA 236, MCL 600.2950.

(4) After the chief circuit judge for the county in which the jail is located reviews the information

presented by the sheriff pursuant to subsection (2), the chief circuit judge shall, for purposes of county jail

population reduction, do both of the following:

(a) Classify prisoners who are serving sentences of imprisonment for conviction of crimes into 2 groups:

those prisoners who, if released, would present a high risk to the public safety, and those who, if released,

would not present a high risk to the public safety. The chief circuit judge shall also determine a minimum and

a maximum percentage by which the sentences can be reduced. The sheriff shall reduce the sentences of all

prisoners who, if released, would not present a high risk to the public safety by an equal percentage which is

within the minimum and maximum percentages determined by the chief circuit judge.

(b) Review the list of prisoners housed in the county jail who are not serving a sentence for conviction of

crimes and determine for each prisoner whether the release of that prisoner would or would not present a high

risk to public safety. The chief circuit judge may do either or both of the following with regard to a prisoner

whose release would not present a high risk to the public safety:

(i) Modify the bond of the prisoner, subject to any conditions reasonably necessary to ensure the

appearance of the individual in court.

(ii) Release the prisoner subject to the condition that he or she be placed on electronic monitoring.

(5) The sentences of prisoners sentenced to and housed in the county jail after the fourteenth day of the

county jail overcrowding state of emergency may continue to be reduced in the same manner as prescribed in

subsections (2)(a) and (4)(a), but shall not be reduced after the county jail overcrowding state of emergency is

Rendered Friday, March 13, 2020

Page 1

Michigan Compiled Laws Complete Through PA 61 of 2020

© Legislative Council, State of Michigan

Courtesy of www.legislature.mi.gov

Case 2:20-cv-10949-LVP-MJH ECF No. 1-13 filed 04/17/20 PageID.247 Page 13 of 16
ended or after the sheriff orders a sentence reduction pursuant to section 7, whichever occurs first. (6) The department of corrections, in cooperation with the Michigan sheriffs' association, shall annually
report to the chairpersons of the senate and house standing committees responsible for legislation concerning corrections. The report shall evaluate the effect on the overcrowding state of emergency procedures under this section.
History: 1982, Act 325, Eff. Feb. 8, 1983;Am. 1988, Act 399, Imd. Eff. Dec. 27, 1988;Am. 2008, Act 542, Imd. Eff. Jan. 13, 2009.
Popular name: Jail Overcrowding Emergency Powers Act

Rendered Friday, March 13, 2020
© Legislative Council, State of Michigan

Page 2

Michigan Compiled Laws Complete Through PA 61 of 2020
Courtesy of www.legislature.mi.gov

Case 2:20-cv-10949-LVP-MJH ECF No. 1-13 filed 04/17/20 PageID.248 Page 14 of 16
COUNTY JAIL OVERCROWDING STATE OF EMERGENCY (EXCERPT) Act 325 of 1982
801.57 Failure of certain actions to reduce population to level prescribed in MCL 801.56(1); equal reduction of original sentences. Sec. 7. If the actions taken pursuant to sections 5 and 6 do not reduce the county jail's population to the
level prescribed in section 6(1) within 28 days of the declaration of the county jail overcrowding state of emergency, the original sentences, not including good time, of all prisoners sentenced to and housed in the county jail on that date shall be equally reduced by the sheriff by the least possible percentage reduction necessary, not to exceed 30%, to reduce the county jail's prisoner population to the level prescribed in section 6(1).
History: 1982, Act 325, Eff. Feb. 8, 1983;Am. 1988, Act 399, Imd. Eff. Dec. 27, 1988. Popular name: Jail Overcrowding Emergency Powers Act

Rendered Friday, March 13, 2020
© Legislative Council, State of Michigan

Page 1

Michigan Compiled Laws Complete Through PA 61 of 2020
Courtesy of www.legislature.mi.gov

Case 2:20-cv-10949-LVP-MJH ECF No. 1-13 filed 04/17/20 PageID.249 Page 15 of 16
COUNTY JAIL OVERCROWDING STATE OF EMERGENCY (EXCERPT) Act 325 of 1982
801.58 Failure of certain actions to reduce population to level prescribed in MCL 801.56(1); deferring acceptance for incarceration of certain persons. Sec. 8. (1) Except as otherwise provided in this subsection and subsection (2), if the actions taken pursuant
to sections 5, 6, and 7 do not reduce the county jail's population to the level prescribed in section 6(1) within 42 days of the declaration of the county jail overcrowding state of emergency, the sheriff shall defer acceptance for incarceration in the general population of the county jail persons sentenced to or otherwise committed to the county jail for incarceration until the county jail overcrowding state of emergency is ended pursuant to section 9, except that the sheriff shall not defer acceptance for incarceration all persons under sentence for or charged with violent or assaultive crimes, sex offenses, escape from prison or jail, drunk driving offenses, controlled substance offenses except possession of less than 25 grams of a controlled substance, or weapons offenses.
(2) The sheriff shall not defer acceptance of a prisoner for incarceration into the general population of the county jail if both of the following occur:
(a) The sheriff or the sentencing judge presents to the chief circuit judge for the county in which the county jail is located information alleging that deferring acceptance of the prisoner for incarceration would constitute a threat to public safety.
(b) The chief circuit judge, based upon the presence of a threat to public safety, approves of accepting the prisoner for incarceration.
History: 1982, Act 325, Eff. Feb. 8, 1983;Am. 1988, Act 399, Imd. Eff. Dec. 27, 1988;Am. 2007, Act 140, Eff. Feb. 11, 2008. Popular name: Jail Overcrowding Emergency Powers Act

Rendered Friday, March 13, 2020
© Legislative Council, State of Michigan

Page 1

Michigan Compiled Laws Complete Through PA 61 of 2020
Courtesy of www.legislature.mi.gov

Case 2:20-cv-10949-LVP-MJH ECF No. 1-13 filed 04/17/20 PageID.250 Page 16 of 16
COUNTY JAIL OVERCROWDING STATE OF EMERGENCY (EXCERPT) Act 325 of 1982
801.59b Suspension or reduction of jail sentence by sentencing judge; delegation of authority to chief judge; modification of bond. Sec. 9b. (1) For purposes of this act, a sentencing judge may suspend or reduce any validly imposed jail
sentence imposed by that judge. A sentencing judge may delegate the authority conferred under this subsection to the chief judge of the judicial district or circuit in which the sentencing judge serves or his or her designee.
(2) For purposes of this act, a judge may modify bond set by the court for unsentenced prisoners. A judge may delegate the authority conferred under this subsection to the chief judge of the judicial district or circuit in which the judge serves, or his or her designee.
History: Add. 2007, Act 139, Imd. Eff. Nov. 13, 2007. Popular name: Jail Overcrowding Emergency Powers Act

Rendered Friday, March 13, 2020
© Legislative Council, State of Michigan

Page 1

Michigan Compiled Laws Complete Through PA 61 of 2020
Courtesy of www.legislature.mi.gov

Case 2:20-cv-10949-LVP-MJH ECF No. 1-14 filed 04/17/20 PageID.251 Page 1 of 16
Exhibit 13

Case 2:20-cv-10949-LVP-MJH ECF No. 1-14
State Headquarters
2966 Woodward Avenue Detroit, MI 48201 Phone 313.578.6800 Fax 313.578.6811 E-mail aclu@aclumich.org www.aclumich.org

filed 04/17/20

PageID.252 Page 2 of 16
Detroit Office
645 Griswold Suite 3300 Penobscot Building Detroit, MI 48226 Phone 313.256.9833 Fax 313.965.0372 www.sado.org

March 31, 2020

Sent via email

Re: Reducing Your Jail Population Pursuant to Executive Order 2020-29

Dear Sheriff:
The ACLU of Michigan (“ACLU”) and the State Appellate Defender Office (“SADO”) appreciate the efforts that many courts and law enforcement officials around the state have already taken to try to reduce jail populations in order to mitigate the probability of a disastrous COVID-19 outbreak in our jails and to reduce the impact when one inevitably occurs despite everyone’s best efforts. On March 29, 2020, Governor Whitmer signed Executive Order 202029, attached here for your convenience. The Order underscores the life-or-death threat that the COVID-19 pandemic poses to people incarcerated in county jails throughout Michigan, as well as to jail staff and the community at large. The Order suspends the capacity and procedural requirements of Michigan’s County Jail Overcrowding Act (“JOA”), thus empowering sheriffs and courts to swiftly but safely take bold and urgent steps to dramatically reduce jail populations to alleviate these risks.
We write to highlight the specific measures that sheriffs and courts can now take to further reduce jail populations under the JOA, as modified by EO 2020-29, while maintaining public safety. We note that Chief Justice Bridget McCormack and Sheriff Matt Saxton of the Michigan Sheriffs’ Association recently issued a press release urging courts and sheriffs to take similar measures, emphasizing that “[f]ollowing this advice WILL SAVE LIVES.” The ACLU and SADO agree.
It is important to note that all of the powers conferred by the JOA allow courts and sheriffs to act promptly and efficiently without conducting separate hearings in each individual case. And, as expressly authorized by EO 2020-29, you may immediately implement any or all of the JOA’s population reduction measures without regard to the capacity, procedural, and waiting-period requirements that strict compliance with the statute would otherwise entail. Accordingly, the following critical measures can now be taken immediately by judges and sheriffs working together—and as a matter of public health, must be taken without any delay—in order to reduce the risks of fatal COVID-19 outbreaks in our jails:
• Release of pre-trial detainees. The JOA permits the chief district judge, chief circuit judge, the sheriff (and in some jurisdictions a few additional judges) to vote to establish a “maximum value” for convertible cash bonds. The sheriff is then authorized to convert the bond of any person in jail because of inability to pay a bond up to the “maximum value” into a personal bond and to release that individual upon approval from the chief circuit judge. MCL 801.51a(1)(a), (2). Courts and sheriffs should immediately use this

Case 2:20-cv-10949-LVP-MJH ECF No. 1-14 filed 04/17/20 PageID.253 Page 3 of 16
power by establishing high “maximum values.” Then sheriffs should promptly provide lists of individuals who qualify for release because of their bond amount, and chief circuit judges should promptly and summarily approve such lists.
The JOA also provides ways to promptly and safely release most individuals whose cash bail exceeds the “maximum value.” The JOA allows chief judges to modify bond to facilitate the release of any pre-trial detainee, except for individuals accused of crimes against their romantic partner or children, who does not pose “a high risk to public safety.” MCL 801.56(2)(b), (3), (4)(b). Sheriffs should promptly provide lists of all individuals who are still in jail in a format that complies with MCL 801.56(2)(b). Chief judges should then make determinations about whether to modify bond as rapidly as possible and in recognition that an individual accused of a crime should not be presumed guilty and should not be presumed to be likely to re-offend in the absence of extraordinary facts suggesting a recurring pattern of violent activity.
• Release of prisoners who have served 85% of their sentence. The JOA permits sheriffs to release people who were convicted of most crimes immediately if they have already served 85% or more of their sentence, unless the chief circuit judge concludes that immediate release will present a threat to public safety. MCL 801.51a(1)(b). This option exists for all criminal convictions except “assaultive offense, sex offense, prison or jail escape offense, weapons offense, drunk driving offense, or a controlled substance offense except possession of less than 25 grams of a controlled substance.” Accordingly, sheriffs should immediately provide lists of eligible individuals who have served 85% of their sentence to chief circuit judges. Chief circuit judges should promptly order the release of all such people absent persuasive evidence that the individuals will be a danger to the public, evidence of which should be very rare given the offenses that are eligible for release.
• Reduction of sentences for other prisoners. The JOA provides three ways to reduce the sentences of people housed in county jails. First, section 56 states that sheriffs should provide a list of all individuals currently serving sentences in the jails to the chief circuit judges. MCL 800.56(2)(a). Chief circuit judges must then classify the list into two categories: individuals who present a “high risk to public safety” if released and those who do not. The chief judge can then set a minimum and maximum percentage amount by which sentences of the non-high risk individuals may be reduced, and the sheriff may immediately reduce the sentences of all such people by any amount within the range set by the chief judge. MCL 801.56(4)(a).
Second, sheriffs can unilaterally reduce the sentences of all people in a county jail by up to 30% without approval from a circuit judge. MCL 801.57.
Third, any sentencing judge “may suspend or reduce any validly imposed jail sentence imposed by that judge.” MCL 800.59b(1). Judges can delegate these powers to their chief judge. All judges should be encouraged to exercise this power (or delegate it to their chief judges) to reduce or suspend sentences of all people who do not pose an immediate high risk to public safety. In particular, judges should suspend sentences in
2

Case 2:20-cv-10949-LVP-MJH ECF No. 1-14 filed 04/17/20 PageID.254 Page 4 of 16
situations where the defendant has not yet begun to serve their sentence, so as to avoid introducing new individuals and risks into the carceral environment.
• Refuse to detain new people in the jails. The JOA authorizes sheriffs to defer admitting new detainees to the jail except for individuals convicted of certain, more serious, crimes, until the crisis has abated. Specifically, sheriffs may decline to admit new individuals to their jails unless such individuals have been convicted of “violent or assaultive crimes, sex offenses, escape from prison or jail, drunk driving offenses, controlled substance offenses except possession of less than 25 grams of a controlled substance, or weapons offenses.” MCL 801.58(1). Sheriffs are now able to exercise these powers to refuse to admit all new pre-trial detainees, people convicted of most offenses, as well as anyone charged with technical probation violations or failure to appear, unless the chief circuit judge affirmatively determines that detention is necessary because of a “threat to public safety.” Significantly, sheriffs can decline to admit new detainees under this section without first obtaining approval from the circuit court.
• Review and termination of agreements to house other detainees, especially ICE detainees. Section 55(f) of the JOA allows sheriffs to review agreements to house detainees from other governmental actors and authorizes termination of such arrangements. MCL 801.55(f). This allows sheriffs to revisit contracts to hold federal detainees, including ICE detainees. In our experience, most such contracts allow for immediate termination in the event of an “emergency.” Accordingly, sheriffs should consider immediately terminating such contracts and releasing ICE detainees as an efficient way to significantly reduce jail populations without imperiling public safety.1
In addition, local jails should not hold people on detainers for Immigrations and Customs Enforcement (ICE), which are not judicially issued warrants, but are merely requests to hold individuals for ICE. See Lopez-Lopez v. County of Allegan, 321 F Supp 3d 794, 799 (WD Mich., 2018) (“[C]ooperation with ICE detainers is discretionary rather than mandatory”).
In addition to the specific powers enumerated above, the JOA includes several other measures that courts and jails have at their disposal to reduce jail populations. For example, MCL 801.55(a)–(q) sets forth a panoply of alternatives to incarceration that can be utilized. A full copy of the relevant provisions of the JOA are attached to this letter for your convenience.
EO 2020-29 also offers additional categories of people for special consideration of release. These include older people, people who have chronic conditions or are otherwise medically frail, people who are pregnant, people nearing their release date, people incarcerated for traffic violations or for failure to appear or failure to pay, and people with behavioral health problems who can safely be diverted for treatment.
1 The standard Intergovernmental Service Agreement (IGSA) between county jails and ICE specifically provides that you can bring medically vulnerable individuals to ICE’s attention for release within 48 hours, and that limitations on releasing ICE detainees do not apply in “medical or emergency situations.”
3

Case 2:20-cv-10949-LVP-MJH ECF No. 1-14 filed 04/17/20 PageID.255 Page 5 of 16
Finally, EO 2020-29 complements the tools already in place to reduce jail populations. MCL 771.2(5) provides for modification of probation, where jail is a condition of the probation, and MCL 801.257 permits reductions of jail sentences by one quarter. SADO and the ACLU of Michigan appreciate that sheriffs and courts have already been working around the clock in many jurisdictions to improve public safety. EO 2020-29 provides a powerful new tool to accelerate those efforts, and rapidly deploying these new powers is urgent to protect both people in jails, and jail staff and their loved ones, as well as the health of the public at large. Our organizations would be eager to speak with you about ways to facilitate the swift and safe release of people in jails pursuant to the Governor’s order. Thank you for your consideration of these matters in a challenging time.
Sincerely, Dan Korobkin, Legal Director Phil Mayor, Senior Staff Attorney ACLU of Michigan dkorobkin@aclumich.org pmayor@aclumich.org Jonathan Sacks, Director State Appellate Defender Office JSacks@sado.org Cc: Chief Justice Bridget Mary McCormack (via email) Matt Saxton, Executive Director, Michigan Sheriffs’ Association
4

Case 2:20-cv-10949-LVP-MJH ECF No. 1-14 filed 04/17/20 PageID.256 Page 6 of 16
EXECUTIVE ORDER
No. 2020-29
Temporary COVID-19 protocols for entry into Michigan Department of Corrections facilities and transfers to and from Department custody; temporary recommended COVID-19 protocols and enhanced early-release authorization for county jails, local lockups, and juvenile detention centers
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.
On March 10, 2020, the Michigan Department of Health and Human Services identified the first two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401-.421, and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31-.33.
The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945 provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1).
To mitigate the spread of COVID-19, protect the public health, and provide essential protections to vulnerable Michiganders who work at or are incarcerated in prisons, county jails, local lockups, and juvenile detention centers across the state, it is reasonable and necessary to implement limited and temporary COVID-19-related protocols and procedures regarding entry into facilities operated by the Michigan Department of Corrections and transfers to and from the Department’s custody; to recommend limited and temporary COVID-19-related protocols and measures for county jails, local lockups, and juvenile detention centers; and to temporarily suspend certain rules and procedures to facilitate the implementation of those recommendations.
GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
PRINTED IN-HOUSE

Case 2:20-cv-10949-LVP-MJH ECF No. 1-14 filed 04/17/20 PageID.257 Page 7 of 16
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. The Michigan Department of Corrections (the “Department”) must continue to implement risk reduction protocols to address COVID-19 (“risk reduction protocols”), which the Department has already developed and implemented at the facilities it operates and which include the following:
(a) Screening all persons arriving at or departing from a facility, including staff, incarcerated persons, vendors, and any other person entering the facility, in a manner consistent with guidelines issued by the Centers for Disease Control and Prevention (“CDC”). Such screening includes a temperature reading and obtaining information about travel and any contact with persons under investigation for COVID-19 infection.
(b) Restricting all visits, except for attorney-related visits, and conducting those visits without physical contact to the extent feasible.
(c) Limiting off-site appointments for incarcerated persons to only appointments for urgent or emergency medical treatment.
(d) Developing and implementing protocols for incarcerated persons who display symptoms of COVID-19, including methods for evaluation and processes for testing, notification of the Department of Health and Human Services (“DHHS”), and isolation during testing, while awaiting test results, and in the event of positive test results. These protocols should be developed in consultation with local public health departments.
(e) Notifying DHHS of any suspected case that meets the criteria for COVID-19 through communication with the applicable local public health department.
(f) Providing, to the fullest extent possible, appropriate personal protective equipment to all staff as recommended by the CDC.
(g) Conducting stringent cleaning of all areas and surfaces, including frequently touched surfaces (such as doorknobs, handles, light switches, keyboards, etc.), on a regular and ongoing basis.
(h) Ensuring access to personal hygiene products for incarcerated persons and correctional staff, including soap and water sufficient for regular handwashing.
(i) Ensuring that protective laundering protocols are in place.
(j) Posting signage and continually educating on the importance of social distancing, handwashing, and personal hygiene.
(k) Practicing social distancing in all programs and classrooms—meaning a distance of at least six feet between people in any meeting, classroom, or other group.
2

Case 2:20-cv-10949-LVP-MJH ECF No. 1-14 filed 04/17/20 PageID.258 Page 8 of 16
(l) Minimizing crowding, including interactions of groups of 10 or more people, which may include scheduling more times for meal and recreation to reduce person-to-person contact.
2. To mitigate the risk of COVID-19 spreading in county jails, strict compliance with the capacity and procedural requirements regarding county jail overcrowding states of emergency in the County Jail Overcrowding Act (“CJOA”), 1982 PA 325, MCL 801.51 et seq., is temporarily suspended. While this order is in effect, all actions that would be authorized under the CJOA in the event of a declaration of a county jail overcrowding state of emergency are authorized and shall remain authorized without regard to any reduction in jail population or any other such limitations on the duration of authorization imposed by the CJOA.
3. Anyone authorized to act under section 2 of this order is strongly encouraged to consider early release for all of the following, so long as they do not pose a public safety risk:
(a) Older people, people who have chronic conditions or are otherwise medically frail, people who are pregnant, and people nearing their release date.
(b) Anyone who is incarcerated for a traffic violation.
(c) Anyone who is incarcerated for failure to appear or failure to pay.
(d) Anyone with behavioral health problems who can safely be diverted for treatment.
4. Effective immediately, all transfers into the Department’s custody are temporarily suspended. Beginning seven (7) days from the effective date of this order, and no more than once every seven (7) days, a county jail or local lockup may request that the director of the Department determine that the jail or lockup has satisfactorily implemented risk reduction protocols as described in section 1 of this order. Upon inspection, if the director of the Department determines that a county jail or local lockup has satisfactorily implemented risk reduction protocols, transfers from that jail or lockup will resume in accordance with the Department’s risk reduction protocols. The director of the Department may reject transfers that do not pass the screening protocol for entry into a facility operated by the Department.
5. Parole violators in the Department’s custody must not be transported to or lodged in a county jail or local lockup unless the director of the Department has determined that such county jail or local lockup has satisfactorily implemented risk reduction protocols as described in section 1 of this order.
6. The State Budget Office must immediately seek a legislative transfer so that counties may be reimbursed for lodging incarcerated persons that would have been transferred into the Department’s custody if not for the suspension of transfers described in section 4 of this order.
3

Case 2:20-cv-10949-LVP-MJH ECF No. 1-14 filed 04/17/20 PageID.259 Page 9 of 16
7. Juvenile detention centers are strongly encouraged to reduce the risk that those at their facilities will be exposed to COVID-19 by implementing as feasible the following measures:
(a) Removing from the general population any juveniles who have COVID-19 symptoms.
(b) Eliminating any form of juvenile detention or residential facility placement for juveniles unless a determination is made that a juvenile is a substantial and immediate safety risk to others.
(c) Providing written and verbal communications to all juveniles at such facilities regarding COVID-19, access to medical care, and community-based support.
(d) To the extent feasible, facilitating access to family, education, and legal counsel through electronic means (such as telephone calls or video conferencing) at no cost, rather than through in-person meetings.
8. Unless otherwise directed by court order, for juveniles on court-ordered probation, the use of out-of-home confinement for technical violations of probation and any requirements for in-person meetings with probation officers are temporarily suspended.
9. This order is effective immediately and continues through April 26, 2020 at 11:59 pm.
Given under my hand and the Great Seal of the State of Michigan.

Date: March 29, 2020 Time: 7:23 pm

___________________________________ GRETCHEN WHITMER GOVERNOR
By the Governor:
___________________________________ SECRETARY OF STATE
4

Case 2:20-cv-10949-LVP-MJH ECF No. 1-14 filed 04/17/20 PageID.260 Page 10 of 16
COUNTY JAIL OVERCROWDING STATE OF EMERGENCY (EXCERPT) Act 325 of 1982
801.51a County jail population exceeding 95% of jail's rated design capacity; actions by county sheriff; maximum value of outstanding bonds; duration; applicability of subsections (1) to (3). Sec. 1a. (1) In a county other than a county described in subsection (4), the sheriff of that county shall take
the following actions on the fifth consecutive day on which the general population of the county jail exceeds 95% of the jail's rated design capacity:
(a) The sheriff shall review the outstanding bonds for each prisoner. If the total of a prisoner's outstanding bonds does not exceed a maximum value determined as provided in subsection (2), the sheriff, subject to the approval of the chief circuit judge in that county, shall modify each outstanding bond for that prisoner to a personal recognizance bond in that same amount, issue to the prisoner a receipt similar to an interim bond receipt, and send a copy of the receipt to the court that set the bond.
(b) The following prisoners, except for any prisoner that the chief circuit judge in that county believes would present a threat to the public safety if released, shall be released immediately:
(i) Any sentenced prisoner who has served 85% or more of his or her sentence, unless he or she is serving a sentence for a violent or assaultive offense, sex offense, prison or jail escape offense, weapons offense, drunk driving offense, or a controlled substance offense except possession of less than 25 grams of a controlled substance.
(ii) Any prisoner detained in the county jail for a civil contempt adjudication for failure to pay child support who has no other charges pending against him or her.
(2) The maximum value of outstanding bonds, for purposes of subsection (1)(a), shall be determined by a majority vote of the following individuals, as applicable:
(a) In a single-county or multicounty judicial district, the chief circuit judge for the judicial circuit that includes that county, the chief district judge for that district, and the sheriff of the county.
(b) In a county containing 2 or more judicial districts, the chief circuit judge for the judicial circuit that includes that county, the chief probate judge for that county, the sheriff of the county, and 2 district judges chosen by the chief district judges sitting in that county.
(3) A determination made under subsection (2) remains in effect for 1 year after the date on which that determination was made.
(4) Subsections (1) to (3) do not apply to either of the following: (a) A county for which a county jail management plan has been approved under section 9a. (b) A county having a population greater than 650,000 as of the most recent federal decennial census that, on the effective date of this section, has implemented a written jail management plan in which the basis of the plan is jail bed allocation. The exception provided by this subsection applies only as long as that plan remains in effect.
History: Add. 2007, Act 140, Eff. Feb. 11, 2008.
Popular name: Jail Overcrowding Emergency Powers Act

Rendered Friday, March 13, 2020
© Legislative Council, State of Michigan

Page 1

Michigan Compiled Laws Complete Through PA 61 of 2020
Courtesy of www.legislature.mi.gov

Case 2:20-cv-10949-LVP-MJH ECF No. 1-14 filed 04/17/20 PageID.261 Page 11 of 16
COUNTY JAIL OVERCROWDING STATE OF EMERGENCY (EXCERPT) Act 325 of 1982
801.55 Reduction of prisoner population by sheriff, notified persons, and other judges; means. Sec. 5. The sheriff, the persons notified pursuant to section 4, and other circuit, district, and municipal
judges may attempt to reduce the prisoner population of the county jail through any available means which are already within the scope of their individual and collective legal authority, including, but not limited to, the following:
(a) Accelerated review and rescheduling of court dates. (b) Judicial review of bail for possible bail reduction, release on recognizance, or conditional release of prisoners in the county jail. (c) Prosecutorial pre-trial diversion. (d) Judicial use of probation, fines, community service orders, restitution, and delayed sentencing as alternatives to commitment to jail. (e) Use of work-release, community programs, and other alternative housing arrangements by the sheriff, if the programs and alternative housing arrangements are authorized by law. (f) Review of agreements which allow other units of government to house their prisoners in the overcrowded county jail to determine whether the agreements may be terminated. (g) Entering into agreements which allow the sheriff for the county in which the overcrowded county jail is located to house prisoners in facilities operated by other units of government. (h) Refusal by the sheriff to house persons who are not required by law to be housed in the county jail. (i) Acceleration of the transfer of prisoners sentenced to the state prison system, and prisoners otherwise under the jurisdiction of the department of corrections, to the department of corrections. (j) Judicial acceleration of pending court proceedings for prisoners under the jurisdiction of the department of corrections who will be returned to the department of corrections regardless of the outcome of the pending proceedings. (k) Reduction of waiting time for prisoners awaiting examination by the center for forensic psychiatry. (l) Alternative booking, processing, and housing arrangements, including the use of appearance tickets instead of booking at the county jail and the use of weekend arraignment, for categories of cases considered appropriate by the persons notified pursuant to section 4. (m) Acceptance by the courts of credit cards for payments of bonds, fines, and court costs. (n) Use of community mental health and private mental health resources in the county as alternatives to housing prisoners in the county jail for those prisoners who qualify for placement in the programs and for whom placement in the programs is appropriate. (o) Use of community and private substance abuse programs and other therapeutic programs as alternatives to housing prisoners in the county jail for those prisoners who qualify for placement in the programs and for whom placement in the programs is appropriate. (p) Preparation of a long-range plan for addressing the county jail overcrowding problem, including recommendations to the county board of commissioners on construction of new jail facilities and funding for construction or other options designed to alleviate the overcrowding problem. (q) Review of sentencing procedures, including the elimination of delays in preparing presentence reports for prisoners awaiting sentence, and staggering the dates on which prisoners will start serving a jail sentence to minimize fluctuating demands on jail capacity.
History: 1982, Act 325, Eff. Feb. 8, 1983;Am. 2007, Act 140, Eff. Feb. 11, 2008.
Popular name: Jail Overcrowding Emergency Powers Act

Rendered Friday, March 13, 2020
© Legislative Council, State of Michigan

Page 1

Michigan Compiled Laws Complete Through PA 61 of 2020
Courtesy of www.legislature.mi.gov

Case 2:20-cv-10949-LVP-MJH ECF No. 1-14 filed 04/17/20 PageID.262 Page 12 of 16

COUNTY JAIL OVERCROWDING STATE OF EMERGENCY (EXCERPT) Act 325 of 1982

801.56 Requirement of further actions; failure of certain actions to reduce population to level

prescribed in subsection (1); presenting prisoner information to chief circuit judge;

applicability of subsection (2)(b) to certain prisoners; review; classification of prisoners;

reduction of sentences; duration; report.

Sec. 6. (1) The further actions prescribed in subsections (2) to (5) and in sections 7 and 8 shall be required

unless the actions taken pursuant to section 5 reduce the county's jail population to the higher of the

following:

(a) 90% of rated design capacity or a percentage of rated design capacity less than 90% as set by a court

prior to February 8, 1983.

(b) A prisoner population such that the jail has the following number of empty beds:

(i) For a jail with a rated design capacity of less than 500 beds, at least 10 empty beds.

(ii) For a jail with a rated design capacity of 500 beds or more, at least 25 empty beds.

(2) If the actions taken pursuant to section 5 do not reduce the county jail's population to the level

prescribed in subsection (1) within 14 days after the declaration of the county jail overcrowding state of

emergency, the sheriff shall present to the chief circuit judge for the county in which the jail is located the

following information for each prisoner housed in the county jail on that date:

(a) For prisoners who are serving a sentence of imprisonment for conviction of 1 or more crimes:

(i) The name of each prisoner.

(ii) The offense for which the prisoner was convicted.

(iii) The length of sentence imposed for the prisoner.

(iv) The date on which the prisoner began serving his or her sentence.

(v) The date on which the prisoner will be released from the jail according to the terms of his or her

sentence, including computations for good time.

(vi) The name of the judge who imposed the sentence.

(b) For prisoners housed in the county jail, other than a prisoner described in subsection (3), who are not

serving a sentence of imprisonment for conviction of a crime:

(i) The name of the prisoner.

(ii) The offense for which the prisoner is being detained in the county jail.

(iii) The amount of the prisoner's bond.

(iv) The date on which the prisoner began his or her period of detention.

(v) The name of the judge who ordered the prisoner to be detained.

(3) Subsection (2)(b) does not apply to a prisoner who is detained in the county jail in connection with a

crime or an allegation of a crime in which the victim was a spouse, a former spouse, an individual with whom

he or she has had a child in common, an individual residing or having resided in the same household, or an

individual with whom he or she has or has had a dating relationship as that term is defined in section 2950 of

the revised judicature act of 1961, 1961 PA 236, MCL 600.2950.

(4) After the chief circuit judge for the county in which the jail is located reviews the information

presented by the sheriff pursuant to subsection (2), the chief circuit judge shall, for purposes of county jail

population reduction, do both of the following:

(a) Classify prisoners who are serving sentences of imprisonment for conviction of crimes into 2 groups:

those prisoners who, if released, would present a high risk to the public safety, and those who, if released,

would not present a high risk to the public safety. The chief circuit judge shall also determine a minimum and

a maximum percentage by which the sentences can be reduced. The sheriff shall reduce the sentences of all

prisoners who, if released, would not present a high risk to the public safety by an equal percentage which is

within the minimum and maximum percentages determined by the chief circuit judge.

(b) Review the list of prisoners housed in the county jail who are not serving a sentence for conviction of

crimes and determine for each prisoner whether the release of that prisoner would or would not present a high

risk to public safety. The chief circuit judge may do either or both of the following with regard to a prisoner

whose release would not present a high risk to the public safety:

(i) Modify the bond of the prisoner, subject to any conditions reasonably necessary to ensure the

appearance of the individual in court.

(ii) Release the prisoner subject to the condition that he or she be placed on electronic monitoring.

(5) The sentences of prisoners sentenced to and housed in the county jail after the fourteenth day of the

county jail overcrowding state of emergency may continue to be reduced in the same manner as prescribed in

subsections (2)(a) and (4)(a), but shall not be reduced after the county jail overcrowding state of emergency is

Rendered Friday, March 13, 2020

Page 1

Michigan Compiled Laws Complete Through PA 61 of 2020

© Legislative Council, State of Michigan

Courtesy of www.legislature.mi.gov

Case 2:20-cv-10949-LVP-MJH ECF No. 1-14 filed 04/17/20 PageID.263 Page 13 of 16
ended or after the sheriff orders a sentence reduction pursuant to section 7, whichever occurs first. (6) The department of corrections, in cooperation with the Michigan sheriffs' association, shall annually
report to the chairpersons of the senate and house standing committees responsible for legislation concerning corrections. The report shall evaluate the effect on the overcrowding state of emergency procedures under this section.
History: 1982, Act 325, Eff. Feb. 8, 1983;Am. 1988, Act 399, Imd. Eff. Dec. 27, 1988;Am. 2008, Act 542, Imd. Eff. Jan. 13, 2009.
Popular name: Jail Overcrowding Emergency Powers Act

Rendered Friday, March 13, 2020
© Legislative Council, State of Michigan

Page 2

Michigan Compiled Laws Complete Through PA 61 of 2020
Courtesy of www.legislature.mi.gov

Case 2:20-cv-10949-LVP-MJH ECF No. 1-14 filed 04/17/20 PageID.264 Page 14 of 16
COUNTY JAIL OVERCROWDING STATE OF EMERGENCY (EXCERPT) Act 325 of 1982
801.57 Failure of certain actions to reduce population to level prescribed in MCL 801.56(1); equal reduction of original sentences. Sec. 7. If the actions taken pursuant to sections 5 and 6 do not reduce the county jail's population to the
level prescribed in section 6(1) within 28 days of the declaration of the county jail overcrowding state of emergency, the original sentences, not including good time, of all prisoners sentenced to and housed in the county jail on that date shall be equally reduced by the sheriff by the least possible percentage reduction necessary, not to exceed 30%, to reduce the county jail's prisoner population to the level prescribed in section 6(1).
History: 1982, Act 325, Eff. Feb. 8, 1983;Am. 1988, Act 399, Imd. Eff. Dec. 27, 1988. Popular name: Jail Overcrowding Emergency Powers Act

Rendered Friday, March 13, 2020
© Legislative Council, State of Michigan

Page 1

Michigan Compiled Laws Complete Through PA 61 of 2020
Courtesy of www.legislature.mi.gov

Case 2:20-cv-10949-LVP-MJH ECF No. 1-14 filed 04/17/20 PageID.265 Page 15 of 16
COUNTY JAIL OVERCROWDING STATE OF EMERGENCY (EXCERPT) Act 325 of 1982
801.58 Failure of certain actions to reduce population to level prescribed in MCL 801.56(1); deferring acceptance for incarceration of certain persons. Sec. 8. (1) Except as otherwise provided in this subsection and subsection (2), if the actions taken pursuant
to sections 5, 6, and 7 do not reduce the county jail's population to the level prescribed in section 6(1) within 42 days of the declaration of the county jail overcrowding state of emergency, the sheriff shall defer acceptance for incarceration in the general population of the county jail persons sentenced to or otherwise committed to the county jail for incarceration until the county jail overcrowding state of emergency is ended pursuant to section 9, except that the sheriff shall not defer acceptance for incarceration all persons under sentence for or charged with violent or assaultive crimes, sex offenses, escape from prison or jail, drunk driving offenses, controlled substance offenses except possession of less than 25 grams of a controlled substance, or weapons offenses.
(2) The sheriff shall not defer acceptance of a prisoner for incarceration into the general population of the county jail if both of the following occur:
(a) The sheriff or the sentencing judge presents to the chief circuit judge for the county in which the county jail is located information alleging that deferring acceptance of the prisoner for incarceration would constitute a threat to public safety.
(b) The chief circuit judge, based upon the presence of a threat to public safety, approves of accepting the prisoner for incarceration.
History: 1982, Act 325, Eff. Feb. 8, 1983;Am. 1988, Act 399, Imd. Eff. Dec. 27, 1988;Am. 2007, Act 140, Eff. Feb. 11, 2008. Popular name: Jail Overcrowding Emergency Powers Act

Rendered Friday, March 13, 2020
© Legislative Council, State of Michigan

Page 1

Michigan Compiled Laws Complete Through PA 61 of 2020
Courtesy of www.legislature.mi.gov

Case 2:20-cv-10949-LVP-MJH ECF No. 1-14 filed 04/17/20 PageID.266 Page 16 of 16
COUNTY JAIL OVERCROWDING STATE OF EMERGENCY (EXCERPT) Act 325 of 1982
801.59b Suspension or reduction of jail sentence by sentencing judge; delegation of authority to chief judge; modification of bond. Sec. 9b. (1) For purposes of this act, a sentencing judge may suspend or reduce any validly imposed jail
sentence imposed by that judge. A sentencing judge may delegate the authority conferred under this subsection to the chief judge of the judicial district or circuit in which the sentencing judge serves or his or her designee.
(2) For purposes of this act, a judge may modify bond set by the court for unsentenced prisoners. A judge may delegate the authority conferred under this subsection to the chief judge of the judicial district or circuit in which the judge serves, or his or her designee.
History: Add. 2007, Act 139, Imd. Eff. Nov. 13, 2007. Popular name: Jail Overcrowding Emergency Powers Act

Rendered Friday, March 13, 2020
© Legislative Council, State of Michigan

Page 1

Michigan Compiled Laws Complete Through PA 61 of 2020
Courtesy of www.legislature.mi.gov

Case 2:20-cv-10949-LVP-MJH ECF No. 1-15 filed 04/17/20 PageID.267 Page 1 of 14
Exhibit 14

Case 2:20-cv-10949-LVP-MJH ECF No. 1-15 filed 04/17/20 PageID.268 Page 2 of 14
DECLARATION OF DR. ADAM LAURING
Pursuant to 28 U.S.C.§ 1746, I hereby declare as follows:
I. Background and Qualification
1. My name is Adam Lauring, M.D., Ph.D.
2. I am a board-certified medical doctor in Infectious Diseases
3. I have been a physician for more than 18 years, and I have worked in Infectious Diseases for 14 years.
4. My bio, attached as Exhibit A, includes a brief description of my education and relevant experience
5. My Curriculum Vitae, attached as Exhibit B, includes a full list of my honors, experience, and publications.
6. I am donating my time reviewing materials and preparing this Declaration. Any live testimony I provide will also be pro bono.
II. Heightened Risk of Epidemics in Jails and Prisons
7. As I will discuss below, the risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of multiple risks of transmission and exposure to individuals who become infected.
8. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails, however, are closely connected to communities. Staff, visitors, contractors, and vendors pass between communities and these facilities and, if infected, these individuals can carry with them and transmit infectious diseases. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities, posing the same risk. People often need to be transported to

Case 2:20-cv-10949-LVP-MJH ECF No. 1-15 filed 04/17/20 PageID.269 Page 3 of 14
and from facilities to attend court and move between facilities. Prison health is public health.
9. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people share dining halls, bathrooms, showers, telephones, and other common areas, the opportunities for transmission are greater. Where infectious diseases are transmitted from person to person by droplets, and no vaccine exists, the best initial strategy is to practice social distancing – maintaining a physical distance of at least six feet from any other person. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community.
10.Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting, therefore, dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases, and significantly increases the likelihood of the spread of infection. For example, in mid-March, the jail at Rikers Island in New York City had not had a single confirmed COVID-19 case. By March 30, 167 inmates, 114 correction staff and 20 health workers at Rikers tested positive for COVID-19; two correction staff members have died and multiple inmates have been hospitalized.1 As of April 8, Rikers had a rate of infection that is far higher than the infection rates of the most infected regions of the world. More than 700 people have tested positive for COVID-19, including more than 400 staff.2 The Chief Medical Officer of Rikers has described a “public health disaster unfolding before our eyes.” In his view, following CDC guidelines has not been enough to stem the crisis: “infections in our jails are growing quickly despite these efforts.”3
1 Jan Ransom, We’re Left for Dead: Fears of Virus Catastrophe at Rikers Jail, NY Times, Mar. 30, 2020. 2 Asher Stockler, More Than 700 People Have Tested Positive for Coronavirus on Rikers Island, Including Over 440 Staff, Newsweek (April 8, 2020), https://www.newsweek.com/rikers-island-covid-19-new-york-city-1496872. 3 Ross MacDonald (@RossMacDonaldMD), Twitter (Mar. 30, 2020, 8:03 PM), https://twitter.com/rossmacdonaldmd/status/1244822686280437765?s=12 (“I can assure you we were following the CDC guidelines before they were issued. We could

Case 2:20-cv-10949-LVP-MJH ECF No. 1-15 filed 04/17/20 PageID.270 Page 4 of 14

Like the explosive growth at Rikers, the Cook County Jail went from two
confirmed COVID-19 cases on March 23 to more than 350 confirmed cases, 238 inmates and 115 staff members, two weeks later.4 As of April
13, the number of confirmed cases totaled 500, of which two-thirds are inmates.5

11.Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other jail or prison inmates, staff, and visitors.

12.Reduced prevention opportunities: During an infectious disease outbreak, people can curb their risk of infection by washing hands. Jails and prisons often do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers. When handwashing is unavailable, then the risk of infection and rate of infection spread is much greater. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcoholbased sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, telephones, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons because of a lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.

have written them ourselves. . . [I]infections in our jails are growing despite these

efforts.”).

4 Timothy Williams and Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus

Spreads Behind Bars, NY Times (April 8, 2020),

https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jail-

chicago.html.

5 Cheryl Corley, The Covid-19 struggle in the Cook County Jail, NPR (April 13,

2020),

https://www.npr.org/2020/04/13/833440047/the-covid-19-struggle-in-

chicagos-cook-county-jail

Case 2:20-cv-10949-LVP-MJH ECF No. 1-15 filed 04/17/20 PageID.271 Page 5 of 14

13.Additional reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and ill-equipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk to everyone in the facility of a widespread outbreak.
14.Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.6 This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.
15.Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24-hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large outbreaks of infectious diseases. To prevent transmission of droplet-borne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms, if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes containing the illness and caring for those who have become infected nearly impossible.
16.Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes

6 Active case finding for communicable diseases in prison, 391 The Lancet 2186

(2018),

https://www.thelancet.com/journals/lancet/article/PIIS0140-

6736(18)31251-0/fulltext.

Case 2:20-cv-10949-LVP-MJH ECF No. 1-15 filed 04/17/20 PageID.272 Page 6 of 14
access to testing equipment, laboratories, medications, and specialized equipment, such as ventilators.
17.Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During a pandemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves. To help ease the collective burden on Southeastern Michigan hospitals, the state is constructing make-shift field hospitals.7 The patient volume at Detroit’s Sinai-Grace Hospital is so overwhelming that patients are lining the hallways, and patient care is suffering from staff, supplies, and equipment shortages.8 In some cases, patients have died waiting for medical attention.9
18.Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines may be limited. Locally, for example, two Wayne County Jail physicians, including the Jail’s medical director, have died from COVID-19.10
7 TCF Center makeshift hospital in Detroit ready to accept first patients, WXYZ Detroit, Channel 7 (April 9, 2020) https://www.wxyz.com/news/coronavirus/4local-health-systems-will-help-staff-tcf-center-temporary-hospitals-first-patientsarriving-friday 8 Paul P. Murphy, Detroit hospital workers say people are dying in the ER hallways before help can arrive (April 9, 2020), https://www.cnn.com/2020/04/09/us/detroithospital-workers-sinai-grace-coronavirus/index.html 9 Id. 10 Charlie LeDuff, LeDuff: Covid Has Killed 2 Wayne County Jail Doctors, A Commander, And Still: Silence, Deadline Detroit (April 13, 2020), https://www.deadlinedetroit.com/articles/24965/leduff_covid_has_killed_2_wayne _county_jail_doctors_a_commander_and_still_silence

Case 2:20-cv-10949-LVP-MJH ECF No. 1-15 filed 04/17/20 PageID.273 Page 7 of 14

19.Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public. Furthermore, rapid spread of infectious diseases among the inmates can often worsen the epidemic outside of the incarcerated population because staff are more likely to be infected and spread the disease to their families and the wider population.

20.These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.11 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.12 Even facilities on “quarantine” continued to accept new cases” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.

III. Profile of COVID-19 as an Infectious Disease13

11 Influenza Outbreaks at Two Correctional Facilities—Maine, March 2011, Centers

for

Disease

Control

and

Prevention

(2012),

https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm.

12 David. M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are

Few,

Prison

Legal

News

(Feb.

15,

2010),

https://www.prisonlegalnews.org/news/2010/feb/15/swine-flu-widespread-in-

prisons-and-jails-but-deathsare-few/.

13 This whole section draws from Broks J. Global Epidemiology and Prevention of

COVID19, COVID-10 Symposium, Conference on Retroviruses and Opportunistic

Infections (CROI), virual (March 10, 2020); Coronavirus (COVID-19), Centers for

Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent

Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections,

National Commission on Correctional Health Care (February 28, 2020),

https://www.ncchc.org/blog/covid-19-coronavirus-what-you-need-toknow-in-

corrections.

Case 2:20-cv-10949-LVP-MJH ECF No. 1-15 filed 04/17/20 PageID.274 Page 8 of 14

21.The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but recent data from China has demonstrated that almost 13% of transmission occurs from asymptomatic individuals before they start to show symptoms, and it is possible that transmission can occur for weeks after their symptoms resolve.14 In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. A recent study out of Singapore found 10% of new infections could be caused by asymptomatic patients.15 Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for over a year to the general public. Antiviral medications are currently in testing but not yet FDA-approved. People in prison and jail will likely have even less access to these novel health strategies as they become available.
22.Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.16 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease,

14 Du Z, Xu X, Wu Y, Wang L, Cowling BJ, Ancel Meyers L. Serial interval of

COVID-19 mong publicly reported confirmed cases. Emerg Infect Dis. 2020 Jun

[date cited]. https://doi.org/10.3201/eid2606.200357

15 Linda Givetash, New Chinese data on asymptomatic coronavirus cases could help

world

response,

NBC

News

(April

9,

2020),

https://www.nbcnews.com/news/world/new-chinese-data-asymptomatic-

coronavirus-cases-could-help-world-response-n1173896.

16 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease

and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-

ncov/casesupdates/summary.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.

gov%2Fcoronavirus%2F2019-ncov%2Fsummary.html.

Case 2:20-cv-10949-LVP-MJH ECF No. 1-15 filed 04/17/20 PageID.275 Page 9 of 14

and diabetes, and older age.17 74% of cases requiring hospitalization are people over the age of 50.18 Among those individuals, the risk of poor outcomes, included the need for mechanical intervention is over 20%. Death in COVID-19 infection is usually due to pneumonia, and sepsis, and would occur between approximately 1-4% of the population. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine

23.The care of people who are infected with COVID-19 depends on how seriously they are ill.19 People with mild symptoms may not require hospitalization but may continue to be closely monitored at home. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. As discussed earlier, Southeastern Michigan hospitals are already overwhelmed and beyond capacity to provide this type of intensive care. This will worsen as COVID-19 becomes more widespread in communities.

24.In order to reduce the burden on the local health systems, aggressive containment and COVID-19 prevention is of utmost importance. To this end, State of Michigan and the City of Detroit have mandated COVID19 prevention strategies, such as “shelter in place” or “stay at home” orders, which have gone beyond containment and mitigation. Jails and prisons already have difficulty with containment because it requires

17 Clinical course and risk factors for mortality of adult inpatients with COVID-19

in Wuhan, China: a retrospective cohort study, The Lancel (published online March

11,

2020),

https://www.thelancet.com/journals/lancet/article/PIIS0140-

6736(20)30566-3/fulltext.

18 Center for Disease Control, Morbidity and Mortality Weekly Report –

Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-

Confirmed

Coronavirus

Cases

(April

8,

2020),

https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm

19 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for

Management of Patients with Confirmed Coronavirus Disease, Centers for Disease

Control and Prevention (March 7, 2002), https://www.cdc.gov/coronavirus/2019-

ncov/hcp/clinical-guidance-management-patients.html.

Case 2:20-cv-10949-LVP-MJH ECF No. 1-15 filed 04/17/20 PageID.276 Page 10 of 14

intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. However, even with these efforts, it is nearly impossible for jails and prisons to provide the atmosphere of “shelter in place” or “stay at home” social distancing, given the number of individuals that work in and are housed in these facilities in the current system.

25.The time to act is now. Data from other settings demonstrates what happens when jails and prisons are unprepared for COVID-19. To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in place.20 Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and potentially transmit the virus to others.

IV. Risk of COVID-19 in the Oakland County Jail

26.In preparing this report I have reviewed the declarations of Oakland County Jail Inmates Arsineau, Bates, Briggs, J. Cameron, M. Cameron, Kucharski, Lee, and Saunders.

27.Based on my expertise in virology, review of the relevant literature, and my review of the declarations referred to paragraph 25, it is my professional judgment that immediate action is necessary to stem the spread of COVID-19 in the Oakland County Jail and prevent an even worse outbreak, which will result in severe harm to detained individuals, jail staff, and the broader community. The Oakland County Jail is not only obviously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak assuming what is described in the declarations is true, but in some cases, according to declarants, it is intentionally exposing inmates to COVID-19 as retribution for raising concerns about safety. The reasons for this conclusion are detailed as follows.

20 Luke Barr & Christina Carrega, State prisons prepare for coronavirus but federal

prisons not providing significant guidance, sources say, ABC News (March 11,

2020),

https://abcnews.go.com/US/state-prisons-preparecoronavirus-federal-

prisons-providing- significant/story?id=69433690.

Case 2:20-cv-10949-LVP-MJH ECF No. 1-15 filed 04/17/20 PageID.277 Page 11 of 14
28.According to the declarants, people confined in the jail sleep on bunks spaced one to three feet apart and in some cases are sleeping on the floor right next to cellmates. They further stated that inmates share showers, toilets, and sinks in small common areas, and some toilets are close to their beds. Declarants also state that much of the time, whether they are sitting, standing, walking, eating, or sleeping, they are within six feet of at least one other person. Notwithstanding their close proximity to one another, the declarants stated that there have been shortages in personal protective equipment, such as masks and gloves, for all people incarcerated and some working in the jail. Declarants further attested to the fact that staff inconsistently wears personal protective equipment when they interact with inmates. If these statements are true, the jail is not following basic CDC protection and prevention. And, given this layout and crowded environment in which individuals are held, largely without protection, it is impossible to provide an environment where social distancing can occur, and, in turn, impossible to prevent the risk or spread of infection.
29. According to the declarants, some inmates are not provided with regular access to soap, and, in some cases, have been without soap for more than one week. Declarants also state that they do not have access to any hand sanitizer or other personal sanitation supplies, even for purchase. The jail’s failure to provide adequate hygiene supplies deprives individuals of the most important CDC-recommended measures to protect themselves from infection.
30.Declarants attested to the fact that individuals confined at the jail have limited access to disinfectant, if at all, or basic cleaning supplies with which to clean their shared cells, shared living quarters, common areas, or high-touch surfaces. High-touch surfaces, such as light switches, door and sink knobs, telephones, tables, etc., should be sanitized after each use. Failure to properly sanitize shared spaces, common areas, and hightouch surfaces that detained individuals heavily use, seriously increases the risk of the spread of COVID-19 and demonstrates the Jail’s failure to take the most fundamental precautions for preventing the spread of the disease.
31.The declarations attest to significant neglect of inmates’ medical needs and the ability to provide the care necessary to prevent serious illness or

Case 2:20-cv-10949-LVP-MJH ECF No. 1-15 filed 04/17/20 PageID.278 Page 12 of 14
death. The declarants stated that, although they were initially able to make requests for medical attention, those requests were ignored for days or dismissed. Presently, according to declarants, inmates are essentially unable to request medical attention because nurses and doctors are unavailable and jail guards tell the inmates that they cannot assist with to those requests. This is true, according to declarants, even for inmates who are particularly vulnerable to risk of severe illness or death, as a result of underlying health conditions.
32.The Jail’s failure to provide inmates with adequate medical care for their underlying chronic health conditions, as described by the declarants, results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected. According to their declarations, some Plaintiffs, and others held in the jail have serious medical vulnerabilities. A worsening outbreak in the jail would prove disastrous, and potentially fatal, for these medically vulnerable individuals. Based upon the declarations, it is apparent that the Jail is not providing adequate medical treatment to infected inmates. This is also worrisome because it will surely cause unnecessary risk of severe illness or death, and because patients from the Jail will further strain already-burdened Southeastern Michigan medical facilities who will have to absorb patients from the jail.
33.The declarants further attested to the fact that inmates who exhibit COVID-like symptoms, such as cough, shortness of breath, or a fever are not immediately tested or quarantined, if at all. Failure to adequately test for infection results in dramatic undercounting of persons infected, and, in turn, makes it impossible to protect against an outbreak.
34.The quarantine procedures described by declarants will not in any way mitigate or prevent the spread of infection. The declarants stated that the jail is “quarantining” presumably infected inmates in cells immediately adjacent to and within arms-reach of cells with inmates who are not presumed to be infected.
V. Conclusion and Recommendations
35.For the reasons above, it is my professional judgment that individuals placed in the Oakland County Jail are at a significantly higher risk of infection with COVID-19 as compared to the population in the

Case 2:20-cv-10949-LVP-MJH ECF No. 1-15 filed 04/17/20 PageID.279 Page 13 of 14
community, given the procedural and housing conditions in the facility, and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death.
36.Indeed, based on the circumstances described in the declarations, my expertise in virology, and based upon my knowledge and understanding of the ways in which the novel coronavirus is transmitted, drastically reducing the jail’s population is the only way to protect the health and safety of people detained in the facility and the public at large..
37.For the medically vulnerable – individuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune systems, cancer, and diabetes) or who are over the age of 5021 – immediate release is the only option because the Jail’s widespread neglect of medical needs and failure to both identify and quarantine infection, coupled with the inmates’ limited access to lifesaving protections, if any, and inability to practice physical distancing creates a meaningfully higher risk of death.
38.From a public health perspective, it is my strong opinion that individuals who can safely and appropriately remain in the community must not be placed in the Oakland County Jail facilities at this time. I am also strongly of the opinion that individuals who are already in these facilities should be evaluated for release, and that a careful evaluation of procedural and housing guidance is created for those who remain in the facility during the “stay at home” mandate, and possibly until the epidemic is contained.
39.It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in this facility is a matter of days, not weeks.

21 Center for Disease Control, Morbidity and Mortality Weekly Report –

Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-

Confirmed

Coronavirus

Cases

(April

8,

2020),

https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm

Case 2:20-cv-10949-LVP-MJH ECF No. 1-15 filed 04/17/20 PageID.280 Page 14 of 14
40.Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.
41.I declare under penalty of perjury, that the foregoing is true and correct. Executed on this 15th day of April 2020.
____________________________ ADAM LAURING, M.D., Ph.D

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.281 Page 1 of 46
Exhibit 15

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.282 Page 2 of 46

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Janet Malam,
Petitioner, v. Rebecca Adducci, et al.,

Case No. 20-10829
Judith E. Levy United States District Judge
Mag. Judge Anthony P. Patti

Respondents. ________________________________/
AMENDED OPINION AND ORDER GRANTING IN PART PETITIONER’S EMERGENCY APPLICATION FOR A TEMPORARY RESTRAINING ORDER [2]1 This is an emergency petition challenging Janet Malam’s
mandatory detention pursuant to 8 U.S.C. § 1226(c) because of danger posed to her by the COVID-19 pandemic. Petitioner claims that her continued detention violates her Fifth Amendment rights by exposing her to substantial risk of illness and death. She requests a temporary restraining order (TRO) requiring that Respondents release her on her

1 On April 6, 2020 the Court amended its April 5, 2020 Order to include additional terms of supervision.

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.283 Page 3 of 46
own recognizance and refrain from re-detaining her for the pendency of
her immigration proceedings.
For the foregoing reasons, the Court GRANTS IN PART this
emergency application for relief.
BACKGROUND
Petitioner Janet Malam, born in the United Kingdom, is a lawful
permanent resident. (ECF No. 1, PageID.3.) She was legally admitted to
the United States in 1967 at the age of four and is now fifty-six years old.
(Id.) Petitioner has been detained since March 4, 2020, in the Calhoun
County Correctional Facility2 in conjunction with removal proceedings at
the Detroit Immigration Court. (Id.) She brings suit against the following
Respondents: Rebecca Adducci, the Detroit District Director of United
2 The parties each refer to the Calhoun County Correctional Facility with different terminology. See Jail/Corrections Division, Calhoun County, https://www.calhouncountymi.gov/departments/sheriffs_office/jail.php (last visited Apr. 5, 2020) (“Calhoun County Correctional Facility”); Detention Facilities, U.S. Immigrations and Customs Enforcement, https://www.ice.gov/detentionfacility/calhoun-county-correctional-center (last visited Apr. 5, 2020) (“Calhoun County Correctional Center”); Calhoun County Jail, Google Maps, at https://www.google.com/maps/place/Calhoun+County+Jail/@42.3166565,85.1757947,15z/data=!4m2!3m1!1s0x0:0x4f8faa7bcca370c4?sa=X&ved=2ahUKEwiR wvHM3NHoAhUQmHIEHWeUCl4Q_BIwCnoECA4QCA (last visited Apr. 5, 2020) (“Calhoun County Jail”). The Court will refer to Petitioner’s current place of detention as the Calhoun County Correctional Facility or CCCF.
2

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.284 Page 4 of 46
States Immigration and Customs Enforcement (ICE); Matthew Albence, Deputy Director of ICE; Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security; William Barr, Attorney General of the United States; ICE; and Heidi Washington, Director of the Michigan Department of Corrections (MDOC). (Id.)
Petitioner alleges that she suffers from a number of health conditions, including: multiple sclerosis; bipolar disorder; pain; anemia; essential primary hypertension; hypothyroidism; chronic obstructive pulmonary disease; fibromyalgia; mild cognitive impairment; carpal tunnel syndrome; severe major depressive disorder; opioid addiction; nicotine dependence; and polyneuropathy. (ECF No. 1, PageID.7.) According to Petitioner’s extensive medical records, these diagnoses are current and accurate as of March 3, 2020. (ECF No. 1-4, PageID.31.)
Because Petitioner has committed two or more crimes involving moral turpitude, her detention is mandatory pursuant to 28 U.S.C. § 1226(c).3 On March 30, 2020, Petitioner filed a petition requesting
3 Petitioner does not specify the nature of these crimes in either her petition or this application. In their response to Petitioner’s application for a temporary restraining order, Respondents note that Petitioner’s charge of removal is based on a 2003 Michigan state conviction of Larceny from the Person, Mich. Comp. Laws § 750.737, a 2008 conviction of Larceny $100 or Less in violation of a Taylor City,
3

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.285 Page 5 of 46
emergency relief in either one of two forms: a writ of habeas corpus or an injunction “ordering Defendants to immediately release [Petitioner], with appropriate precautionary public health measures, on the grounds that her continued detention violates the Due Process Clause [of the Fifth and Fourteenth Amendments].” (Id. at PageID.17.) Petitioner simultaneously filed an Application for Temporary Restraining Order requesting that the Court order Petitioner’s release during the pendency of her immigration proceedings due to the substantial risk to her health posed by COVID-19 as a result of Petitioner’s continued detention in the enclosed group environment endemic to the Calhoun County Correctional Facility. (ECF No. 2.)
For the reasons stated below, the Court GRANTS Petitioner’s application for a temporary restraining order requiring her immediate release from detention for the duration of the COVID-19 State of Emergency in Michigan or until further Court order. LAW AND ANALYSIS
Michigan ordinance, a 2009 conviction of Retail Fraud in violation of a City of Flat Rock, Michigan ordinance, a 2011 conviction of Attempted Simple Larceny in violation of a City of Tyler, Michigan ordinance, and a 2012 conviction of Retail Fraud 3rd Degree $200 or less in violation of a City of Southgate, Michigan ordinance. (ECF No. 11-1, PageID.192.)
4

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.286 Page 6 of 46
I. Jurisdiction “Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress.” Hamama v. Adducci, 912 F.3d 869, 874 (6th Cir. 2018) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). All courts have an “independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (citing Ruhgras AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)). A court must determine whether it has jurisdiction before deciding a cause of action. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998). Petitioner pleads that “[t]he Court has subject matter jurisdiction over this case pursuant to Article I, § 9, cl. 2 of the U.S. Constitution (Suspension Clause); the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution; 28 U.S.C. § 1331 (federal question); 28 U.S.C. §1651 (All Writs Act); and 28 U.S.C. § 2241 (habeas corpus).” (ECF No. 1, PageID.5.) The Court has jurisdiction to adjudicate Petitioner’s claims under 28 U.S.C. § 2241. Moreover, even if
5

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.287 Page 7 of 46
Petitioner’s claims could not be heard under 28 U.S.C. § 2241, 28 U.S.C. § 1331 provides an independent source of jurisdiction.
A. 28 U.S.C. § 2241 Jurisdiction 28 U.S.C. § 2241 provides a district court with jurisdiction over petitions for habeas corpus where a petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). See INS v. St. Cyr, 533 U.S. 289, 298 (2001) (recognizing 28 U.S.C. § 2241 as a jurisdictional statute). For over 100 years, habeas corpus has been recognized as the vehicle through which noncitizens may challenge the fact of their detention. See Chin Yow v. U.S.¸ 208 U.S. 8, 13 (1908) (“Habeas corpus is the usual remedy for unlawful imprisonment.”) In 2001, the Supreme Court recognized the continued viability of the writ in cases involving the detention of noncitizens: “§ 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention.” Zadvydas v. Davis, 533 U.S. 678, 688 (2001). In 2018, the Court ruled on the merits of a habeas petition challenging the validity of pre-removal detention. Jennings v. Rodriguez, 138 S. Ct. 830 (2018).
6

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.288 Page 8 of 46
Respondents claim, citing Luedtke v. Berkebile, that the Court lacks jurisdiction to grant habeas relief because 28 U.S.C. § 2241 “is not the proper vehicle for a prisoner to challenge conditions of confinement.” Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013). Though the Supreme Court has left as an open question “the reach of the writ with respect to claims of unlawful conditions of treatment or confinement,” Boumedienne v. Bush, 553 U.S. 732, 792 (2006), the Sixth Circuit, conversely, has held that “a § 2241 habeas petition is not the appropriate vehicle for challenging the conditions of . . . confinement.” Velasco v. Lamanna, 16 F. App’x 311, 314 (6th Cir. 2001). In 2018, the Sixth Circuit reiterated this holding, affirming a district court that dismissed a § 2241 petition raising an Eighth Amendment challenge to subpar prison conditions because such a claim must be brought in a civil-rights action such as one under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Solano-Moreta v. Fed. Bureau of Prisons, No. 17-1019, 2018 WL 6982510 (6th Cir. Sep. 24, 2018); but see Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014) (“Habeas corpus tests not only the fact but also the form of detention.”) (internal citation
7

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.289 Page 9 of 46
omitted); Roba v. U.S., 604 F.2d 215 (2d Cir. 1979) (holding that § 2241 petition may be used to challenge conditions of confinement).
The Respondents argue that “there is no dispute that Petitioner brings a challenge to the conditions of her confinement.” (ECF No. 11, PageID.175.) On its face, the application appears to concern Petitioner’s conditions of confinement. Petitioner titles her claim for relief: “Freedom from Cruel Treatment and Conditions of Confinement.” (ECF No. 1, PageID.16.) But Petitioner may nonetheless bring her claim under 28 U.S.C. § 2241 because she seeks immediate release from confinement as a result of there being no conditions of confinement sufficient to prevent irreparable constitutional injury under the facts of her case.
Supreme Court and Sixth Circuit precedent support the conclusion that where a petitioner claims no set of conditions would be sufficient to protect her constitutional rights, her claim should be construed as challenging the fact, not conditions, of her confinement and is therefore cognizable in habeas. In Nelson v. Campbell, the Supreme Court held that a death-row inmate’s challenge to the method of his upcoming execution constituted a challenge to the conditions—not the fact or duration—of his execution, and therefore his claim fell outside the “core”
8

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.290 Page 10 of 46
of habeas corpus. 541 U.S. 637, 644-45 (2004). However, the Court speculated that if the challenged method “were a statutorily mandated part of the lethal injection protocol, or if as a factual matter petitioner were unable or unwilling to concede acceptable alternatives,” there would be a “stronger argument that success on the merits, coupled with injunctive relief, would call into question the death sentence itself,” bringing the claim into the core of habeas corpus. Id. at 645. In Adams v. Bradshaw, the Sixth Circuit relied on Nelson to uphold habeas jurisdiction over a claim where a petitioner challenged the method of his execution but did not concede that any acceptable alternative existed. 644 F.3d 481, 483 (6th Cir. 2011) (“Adams has not conceded the existence of an acceptable alternative procedure. . . . Thus, Adams's lethal-injection claim, if successful, could render his death sentence effectively invalid.”) Here, Petitioner has not conceded the existence of acceptable alternative conditions of her confinement; her Fifth Amendment claim, if successful, would render her continued detention invalid.
In contrast to this case, claims which the Sixth Circuit has held noncognizable in habeas are those in which the petitioner seeks relief other than release from custody: See Solano-Moreta, 2018 WL 6982510,
9

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.291 Page 11 of 46
at *1 (seeking transfer); Luedtke v. Berkebile, 704 F.3d 465, 465–66 (6th Cir. 2013) (challenge to lack of compensation and conditions of work performed in prison); Hodges v. Bell, 170 F. App’x 389, 390 (6th Cir. 2006) (seeking amelioration of conditions or transfer to mental health facility); Sullivan v. United States, 90 Fed. App’x 862, 862 (6th Cir. 2004) (seeking medical treatment in prison); Lutz v. Hemingway, 476 F.Supp. 2d 715, 718 (E.D. Mich. 2007) (seeking restoration of mail privileges in prison); see also Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004) (seeking transfer). Indeed, in Preiser v. Rodriguez, the Supreme Court distinguished conditions of confinement claims from claims seeking immediate or speedier release. 411 U.S. 475, 500 (1973) (distinguishing habeas case seeking good-time credits from § 1983 conditions of confinement cases on the grounds that “none of the state prisoners in those cases was challenging the fact or duration of his physical confinement itself, and none was seeking immediate release or a speedier release from that confinement—the heart of habeas corpus.”)
Although Petitioner here titles her claim for relief “Freedom from Cruel Treatment and Conditions of Confinement,” her Petition is a challenge to the continued validity of her confinement, regardless of its
10

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.292 Page 12 of 46
conditions. Petitioner argues that the only adequate relief is her release from confinement. As Petitioner explains,
[S]ocial distancing and hygiene measures [are] Janet’s only defense against COVID-19. Those protective measures are exceedingly difficult, if not impossible, in the environment of an immigration detention center, where Janet shares toilets, sinks, phones, and showers, eats in communal spaces, and is in close contact with the many other detainees and officers. (ECF No. 1, PageID.16.) At the Court’s March 31, 2020 status conference for this case, counsel for Respondents conceded that social distancing between prisoners of at least six feet would be impossible at the Calhoun County Correctional Facility. This concession supports the conclusion of multiple doctors and public health experts: that “[t]he only viable public health strategy available is risk mitigation. . . . [T]he public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety” (ECF No. 6-1, PageID.87 (Declaration of Infectious Disease Epidemiologist Joseph Amon)); the only way to “prevent serious illness including death” in ICE facilities is to “release all people with risk factors.” (ECF No. 20-3, PageID.374 (Declaration of Dr. Robert B. Greifingert).)
11

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.293 Page 13 of 46
In this case, Petitioner does not take issue with the steps taken at the Calhoun County Correctional Facility to mitigate the risk of detainees contracting COVID-19. Rather, she says that no matter what steps are taken, due to her underlying serious health conditions, there is no communal holding facility where she could be incarcerated during the Covid-19 pandemic that would be constitutional. Petitioner’s claim must therefore be considered as a challenge to the continued validity of confinement itself. Accordingly, Petitioner’s claim is properly brought under 28 U.S.C. § 2241, and the Court has jurisdiction.
B. 28 U.S.C. § 1331 Jurisdiction Even if the Court were to lack jurisdiction under 28 U.S.C. § 2241, the Fifth Amendment provides Petitioner with an implied cause of action, and thus 28 U.S.C. § 1331 would offer an independent source of jurisdiction. 28 U.S.C. § 1331 provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Petitioner properly framed her pleading as a civil rights action “[i]n the alternative.” In addition to her request for a writ of habeas corpus, Petitioner requests “injunctive relief
12

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.294 Page 14 of 46
ordering Defendants to immediately release Janet, with appropriate precautionary public health measures, on the grounds that her continued detention violates the Due Process Clause.” (ECF No. 1, PageID.17.) She titles her single claim for relief “Violation of Fifth Amendment Right to Substantive and Procedural Due Process (Unlawful Punishment; Freedom from Cruel Treatment and Conditions of Confinement.” (Id. at PageID.16.)
Should Petitioner’s habeas petition fail on jurisdictional grounds, the Fifth Amendment provides Petitioner with an implied cause of action, and accordingly 28 U.S.C. 1331 would vest the Court with jurisdiction. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme Court first upheld the proposition that the Constitution itself provided an implied cause of action for claims against federal officials. 403 U.S. at 388. In 2017, the Supreme Court held that federal courts should not extend a Bivens remedy into new contexts if there exist any “special factors counseling hesitation.” Ziglar v. Abassi, 137 S.Ct. 1843, 1857 (2017). However, there is no corresponding limitation on the Constitution as a cause of action to seek injunctive or other equitable relief. See Ziglar, 137 S. Ct. at 1862 (declining to extend
13

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.295 Page 15 of 46
Bivens to conditions of confinement claim, but noting that “Respondents . . . challenge large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners. To address those kinds of decisions, detainees may seek injunctive relief.”). Instead, there is a “presumed availability of federal equitable relief against threatened invasions of constitutional interests.” Hubbard v. E.P.A., 809 F.2d 1, 11 (D.C. Cir. 1986) (citing Bivens, 403 U.S. at 404 (Harlan, J., concurring)). Indeed, “the power of the federal courts to grant equitable relief for constitutional violations has long been established.” Mitchum v. Hurt, 73 F.3d 30, 35 (3d Cir. 1995). Here, Petitioner seeks only injunctive and declaratory relief. Accordingly, she may bring her claim directly under the Fifth Amendment, and the Court has jurisdiction to hear the claim under 28 U.S.C. § 1331.
At oral argument, counsel for Respondent raised the question of whether the United States may be entitled to sovereign immunity if Petitioner brought this case under the Fifth Amendment. Sovereign immunity does not apply in this instance, and even if it did, it has been statutorily waived. Federal courts may exercise the traditional powers of equity in cases within their jurisdiction to enjoin violations of
14

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.296 Page 16 of 46
constitutional rights by government officials. In Ex Parte Young, the Supreme Court first articulated the principle that state government officials may be sued for acting unconstitutionally, even if an ensuing injunction would bind the state. 209 U.S. at 123. In Philadelphia Co. v. Stimson, the Supreme Court recognized the applicability of that principle to suits against federal officials. 223 U.S. 605, 620 (1912) (“in case of an injury threatened by his illegal action, the officer cannot claim immunity from injunction process”). More recently, the Supreme Court affirmed this principle in Dalton v. Specter: “sovereign immunity would not shield an executive officer from suit if the officer acted either ‘unconstitutionally or beyond his statutory powers.’” 511 U.S. 462, 472 (1994) (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 691 n.11 (1949)). In Malone v. Bowdoin, the Court called this principle the “constitutional exception to the doctrine of sovereign immunity.” 369 U.S. 643, 647 (1962). Petitioner here raises a constitutional challenge to her detention as the result of actions taken by Respondent Adducci, a federal officer. Sovereign immunity does not apply.
15

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.297 Page 17 of 46
Even absent this constitutional exception, the Administrative Procedure Act (APA) provides a statutory waiver to any defense of sovereign immunity. 5 U.S.C. § 702 provides that:
An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.
In 2013, the Sixth Circuit recognized that this waiver extends beyond suits brought under the APA:
[W]e now join all of our sister circuits who have done so in holding that § 702's waiver of sovereign immunity extends to all non-monetary claims against federal agencies and their officers sued in their official capacity, regardless of whether plaintiff seeks review of “agency action” or “final agency action” as set forth in § 704.
Muniz-Muniz v. U.S. Border Patrol, 741 F.3d 668, 673 (6th Cir. 2013); see also Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (“The APA’s waiver of sovereign immunity applies to any suit whether under the APA or not.”). ICE is a federal agency, of which Respondent Adducci is an officer or employee thereof. Petitioner challenges
16

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.298 Page 18 of 46
Respondent’s actions made in her official capacity. Accordingly, the APA provides a statutory waiver of sovereign immunity.
C. Petitioner’s Status as a Noncitizen Petitioner’s status as a noncitizen who is undergoing removal proceedings does not affect the Court’s jurisdiction to hear this case. Although several statutes limit a district court’s authority to hear cases in the immigration context, none apply here, as set forth below. 28 U.S.C. § 1252(b)(9) provides that judicial review of: all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter [including §§ 1225 and 1226] shall be available only in judicial review of a final order under this section.
28 U.S.C. § 1252(b)(9). Petitioner does not have a final order of removal. In Jennings v. Rodriguez, the Supreme Court held that 1252(b)(9) did not strip jurisdiction from courts to hear challenges to detention pending removal because detention was not an action taken to remove a noncitizen from the United States. 138 S. Ct. 830, 841 (2018). Petitioner challenges her continued detention; accordingly, 28 U.S.C. § 1252(b)(9) does not strip this Court of jurisdiction.
17

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.299 Page 19 of 46
8 U.S.C. § 1226(e) bars federal court review of any discretionary decision made by the Attorney General regarding detention, release, bond, or parole in an immigration case. However, in Demore v. Kim, 123 S. Ct. 1708, 1713–14 (2003), the Supreme Court held that § 1226(e) did not prevent noncitizens from raising constitutional challenges to mandatory detention under § 1226(c). Petitioner here raises a Fifth Amendment challenge to her continued mandatory detention under § 1226(c); thus, § 1226(e) does not prevent this Court from exercising jurisdiction.
Finally, 8 U.S.C. § 1252(f), titled “Limit on Injunctive Relief,” provides that:
[N]o court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
8 U.S.C. § 1252(f)(1). But as the Supreme Court recognized in Reno v. Amer.-Arab Anti-Discrim. Comm., “this ban does not extend to individual cases.” 525 U.S. 471, 481–82 (1999). Petitioner seeks individual relief.
18

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.300 Page 20 of 46
Therefore, 8 U.S.C. § 1252(f) does not affect this Court’s jurisdiction to enter injunctive or declaratory relief.
II. Proper Habeas Respondent Petitioner names as Respondents: Rebecca Adducci, the Detroit District Director of ICE; Matthew Albence, Deputy Director; Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security; William Parr, Attorney General of the United States; U.S. Immigration and Customs Enforcement; and Heidi Washington, Director of the Michigan Department of Corrections. Only Respondent Rebecca Adducci is properly named with respect to the petition for a writ of habeas corpus. “Historically, the question of who is ‘the custodian,’ and therefore the appropriate respondent in a habeas suit, depends primarily on who has power over the petitioner and . . . on the convenience of the parties and the court.” Roman v. Ashcroft, 340 F.3d 314, 319 (6th Cir. 2003) (citing Henderson v. INS, 157 F.3d 106, 122 (2d Cir. 1998)). In Roman, the Sixth Circuit held that for habeas petitions in immigration contexts, “the INS District Director for the district where a detention facility is located ‘has power over’ alien habeas corpus petitioners.” Id. at 320. The court, in finding that the Attorney General was not a proper respondent
19

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.301 Page 21 of 46
for a noncitizen’s habeas claim and that a habeas claim could properly have only one respondent, reiterated 28 U.S.C. § 2243’s requirement that a writ of habeas corpus “shall be directed to the person having custody of the person detained.” Id. at 321. Michigan only has one ICE District, located in Detroit. See Enforcement and Removal Operations Field Offices, https://www.ice.gov/contact/ero. Accordingly, Rebecca Adducci, the Detroit District Director, is the proper Respondent for Petitioner’s request for a writ of habeas corpus.
III. Petitioner’s Application for a Temporary Restraining Order
Petitioner, along with her complaint, filed an emergency application for a temporary restraining order. (ECF No. 3.) In determining whether to grant such an order, courts evaluate four factors: 1) whether the movant has a strong likelihood of success on the merits; 2) whether the movant would suffer irreparable injury absent an injunction; 3) whether granting the injunction would cause substantial harm to others; and 4) whether the public interest would be served by granting the injunction. Northeast Ohio Coal. for Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). These four factors “are not prerequisites that must be met,
20

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.302 Page 22 of 46
but are interrelated considerations that must be balanced together. For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Id. (internal quotations omitted). “[P]reliminary injunctions are extraordinary and drastic remedies [] never awarded as of right.” Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015). Nonetheless, each of the four factors weighs in Petitioner’s favor, and the Court grants Petitioner’s motion for a temporary restraining order.
A. Irreparable Harm Petitioner is likely to experience irreparable injury absent an injunction, both in the form of loss of health or life, and in the form of an invasion of her constitutional rights. 1. Loss of Health or Life from COVID-19 The ongoing COVID-19 pandemic creates a high risk that absent an injunction by this Court, Petitioner will suffer irreparable harm in the form of loss of health or life as a result of contracting the COVID-19 virus. On March 22, 2020, the Governor of Michigan issued the following statement: “The novel coronavirus (COVID-19) is a respiratory disease
21

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.303 Page 23 of 46

that can result in serious illness or death. It is caused by a new strain of

coronavirus not previously identified in humans and easily spread from

person to person. There is currently no approved vaccine or antiviral

treatment for this disease.” Executive Order, No. 2020-20 (Mar. 22,

2020).

Since March 4, 2020, the date of Petitioner’s detention at the

Calhoun County Correctional Facility, the exceptionally dangerous

nature of the COVID-19 pandemic has become apparent. On March 10,

2020, the Governor of Michigan announced the state’s first two cases of

COVID-19 and simultaneously declared a State of Emergency. Executive

Order, No. 2020-4 (Mar. 10, 2020). The number of new cases then began

to grow exponentially. As of April 5, 2020, there are now 15,718 confirmed

cases of COVID-19 and 617 known related deaths, with 238 confirmed

cases within the Michigan Department of Corrections system specifically.

See

Coronavirus,

Michigan.gov,

https://www.michigan.gov/coronavirus/0,9753,7-406-98163-520743--

,00.html. COVID-19 has a high risk of transmission, and the number and

22

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.304 Page 24 of 46
rate of confirmed cases indicate broad community spread.4 Executive Order, No. 2020-20 (Mar. 22, 2020). Nationally, ICE detention facilities across our country are experiencing the same thing. As of April 4, 2020, ICE has confirmed at least 13 cases of COVID-19 among immigration detainees and 7 cases among detention facility employees and personnel. ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, https://www.ice.gov/coronavirus (updated Apr. 4, 2020 at 8:00pm).
On March 23, 2020, the Centers for Disease Control and Prevention (CDC) acknowledged that correctional and detention facilities “present[] unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors.” Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control (Mar. 23, 2020),
4 Indeed, since the time of Respondent’s brief, the numbers have continued to grow. Respondent reported that, as of April 3, 2020, Calhoun County alone had 25 cases. (ECF No. 11, PageID.169) By the time the Court held oral argument later that day, that number had grown to 31, with 1 reported death. On April 5, the date of this Order, the number of confirmed cases is now 42, with 1 reported death. Coronavirus, https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173---,00.html.
23

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.305 Page 25 of 46
https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html. [Hereinafter “CDC Guidance 3/23/2020”]. Specifically, the CDC noted that many detention conditions create a heightened risk of danger to detainees. These include: low capacity for patient volume, insufficient quarantine space, insufficient on-site medical staff, highly congregational environments, inability of most patients to leave the facility, and limited ability of incarcerated/detained persons to exercise effective disease prevention measures (e.g., social distancing and frequent handwashing). Id.
Though the CDC has recommended public health guidance for detention facilities, and though the Calhoun County Correctional Facility has indeed implemented measures designed to prevent spread of the disease, these measures are inadequate to sufficiently decrease the substantial likelihood that Petitioner will contract COVID-19. As prison officials are beginning to recognize around the country, even the most stringent precautionary measures—short of limiting the detained population itself—simply cannot protect detainees from the extremely high risk of contracting this unique and deadly disease. For example, on April 1, 2020, the Rikers Island jail complex’s chief physician
24

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.306 Page 26 of 46

acknowledged that “infections are soaring” despite the facility’s

“following Centers for Disease Control and Prevention guidelines and

having moved mountains to protect our patients.” Miranda Bryant,

Coronavirus Spread at Rikers is a ‘Public Health Disaster’, Says Jail’s

Top

Doctor,

The

Guardian

(Apr.

1,

2020),

https://www.theguardian.com/us-news/2020/apr/01/rikers-island-jail-

coronavirus-public-health-disaster. In the immigration context

specifically, despite Respondents’ argument that the federal government

has effectively incorporated appropriate and effective precautions,

medical experts at the Department of Homeland Security have warned

that detention confinement creates a “tinderbox scenario” where rapid

outbreak is extremely likely, and extremely likely to lead to deadly

results as resources dwindle on an exponential level. Catherine E.

Shoichet, Doctors Warn of ‘Tinderbox Scenario’ if Coronavirus Spreads in

ICE

Detention,

CNN

(Mar.

20,

2020),

https://www.cnn.com/2020/03/20/health/doctors-ice-detention-

coronavirus/index.html.

Petitioner is 56 years old and suffers from the following conditions,

almost all of which place her at an increased risk of a dire outcome from

25

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.307 Page 27 of 46
contracting the COVID-19 virus: multiple sclerosis, bipolar disorder, anemia, essential primary hypertension, hypothyroidism, chronic obstructive pulmonary disease, fibromyalgia, severe major depressive disorder, opioid addition, and polyneuropathy. (ECF No. 1-4, PageID.31.) See Centers for Disease Control, Groups at Higher Risk for Severe Illness, (Apr. 2, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html (noting that “people of all ages with underlying medical conditions are at higher risk for severe illness, particularly if the underlying medical conditions are not well controlled”). Additionally, Respondents have confined Petitioner in an environment where she “shares toilets, sinks, phones, and showers, eats in communal spaces, and is in close contact with the many other detainees and officers.” (ECF No. 1, PageID.16.) Petitioner’s involuntary interaction with purportedly asymptomatic guards who rotate shifts is also a significant exposure factor. How COVID-19 Spreads, CDC (April 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-
26

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.308 Page 28 of 46
covidspreads.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2 Fcoronavirus%2F2019-ncov%2Fprepare%2Ftransmission.html.5
These are many of the conditions that the CDC has identified as being particularly likely to increase COVID-19 transmissions in detention facilities. CDC Guidance 3/23/2020. For these reasons, Petitioner’s confinement at the Calhoun County Correctional Facility renders her substantially likely to contract COVID-19, and Petitioner’s severe health conditions render her substantially likely to suffer irreparable harm or death as a result.
Respondents focus on one particular issue: whether Petitioner is more likely to contract COVID-19 if released than if she remains confined in their jail. Respondents acknowledge that “there is a health risk posed by COVID-19 and that Petitioner is in the category of people identified to be at higher risk for serious health consequences if she contracts COVID-
5 On April 3, 2020, after Petitioner filed her emergency application for a temporary restraining order, the CDC updated its guidance in light of new evidence of asymptomatic transmission of COVID-19 to recommend that all individuals wear cloth face coverings “in public settings where other social distancing measures are difficult to maintain.” Recommendation Regarding the Use of Cloth Face Coverings, Especially in Areas of Significant Community-Based Transmission, CDC (Apr. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-facecover.html.
27

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.309 Page 29 of 46
19.” (ECF No. 11, PageID.178.) Respondents also acknowledge that Petitioner “does not have to wait until she has COVID-19 to claim that the precautions taken to reduce exposure were insufficient.” (Id. at PageID.179.) Indeed, the crux of Respondents’ argument is not that COVID-19 does not pose a deadly threat to Petitioner if contracted. Rather, Respondents’ argument relies on the proposition that Petitioner does not have a substantial risk for exposure at the Calhoun County Correctional Facility, and her risk of exposure in the community may be greater. (Id. at PageID.178.)
To this end, Respondents posit the following: Petitioner has not established that she has either been exposed to COVID-19, or that her exposure is “imminent,” because there are currently no cases in the facility in which she is detained “and only 25 cases in the surrounding county.”6 (ECF No. 11, PageID.179.) Additionally, Respondents argue that their facility has implemented “numerous precautions to reduce the risk of exposure and spread of COVID-19,”7 and that even if Petitioner is
6 Hours later, due to the exponential nature of COVID-19’s spread, this statistic was already out of date. See supra fn.2.
7 Specifically, Respondents note that the ICE and CCCF precautions are as follows: tracking the disease, screening incoming detainees, isolating and testing
28

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.310 Page 30 of 46
at a “generalized risk” of contracting COVID-19, that does not mean that she is at a “substantial risk” for purposes of her constitutional claim. (Id. at PageID.179-180, citing Wooler v. Hickman Cty., 377 Fed. Appx. 502, 505 (6th Cir. 2010)).
Respondents’ arguments fail to address the stark reality of this particular global public health crisis. In the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors, a “generalized risk” is a “substantial risk” of catching the COVID-19 virus for any group of human beings in highly confined conditions, such as Petitioner within the CCCF facility. In acknowledgment of this simple truth, both the United States Attorney General and the Governor of Michigan have issued independent directives to consider early release for detainees who do not pose a public safety risk, as minimizing crowded populations is the only known way to mitigate spread of this pandemic. Prioritization of
symptomatic detainees, quarantining detainees who test positive, screening incoming staff, suspending in-person social visitation and limiting professional visitation to non-contact, increasing sanitation, educating all staff and detainees, providing detainees with toilet paper, personal soap, and disinfectants, and increasing handwashing stations. (ECF No. 11, PageID.172.)
29

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.311 Page 31 of 46
Home Confinement as Appropriate in Response to COVID-19 Pandemic, Att’y Gen. (Mar. 26, 2020); Executive Order, No. 2020-29 (COVID-19) (Mar. 26, 2020). Moreover, Petitioner’s risk of contracting COVID-19 outside of Respondents’ custody has no bearing on whether they have exposed her to the likelihood of irreparable harm. Though the Court commends Respondents for the steps they have taken to prevent spread of the disease, as prisons and courts around the country are beginning to recognize, such measures are insufficient to stem deadly prison outbreaks. See, e.g., New York City Board of Correction Calls for City to Begin Releasing People From Jail as Part of Public Health Response to COVID-19, N.Y.C. Bd. of Corr. (Mar. 17, 2020), https://www1.nyc.gov/assets/boc/downloads/pdf/News/2020.03.17%20%20Board%20of%20Correction%20Statement%20re%20Release.pdf (arguing that, despite the “heroic work” of Department of Correction and Correctional Health Services staff “to prevent the transmission of COVID-19 in the jails and maintain safe and humane operations, the City must drastically reduce the number of people in jail right now and limit new admissions to exceptional circumstances.”). Even the Calhoun County Correctional Facility’s additional measure of screening incoming
30

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.312 Page 32 of 46
shift workers for high temperatures is insufficient to stem the spread of disease, as COVID-19 spreads asymptomatically. How COVID-19 Spreads, CDC (Apr. 3, 2020), https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/howcovidspreads.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2 Fcoronavirus%2F2019-ncov%2Fprepare%2Ftransmission.html.
Accordingly, the Court concludes that Petitioner’s continued confinement at the Calhoun County Correctional Facility exposes her to a substantial risk of contracting COVID-19, which due to her specific underlying health conditions exposes her to a substantial risk of irreparable harm to her health or life.
2. Violation of Constitutional Rights Petitioner’s Fifth Amendment claim triggers a finding that Petitioner will suffer irreparable harm absent an injunction. Petitioner alleges that in “subjecting Janet to detention conditions that amount to punishment and that fail to ensure her safety and health,” Respondent is “subjecting [her] to a substantial risk of serious harm, in violation of [her] rights under the Due Process Clause.” (ECF No. 1, PageID.17.) The alleged violation of a constitutional right is sufficient for a court to find
31

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.313 Page 33 of 46
irreparable harm. See Overstreet v. Lexington-Fayette Urban Cty. Gov., 305 F.3d 566, 578 (6th Cir. 2002) (citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998); Covino v. Patrissi, 967 F.2d 73, 77; McDonell v. Hunter, 746 F.2d 785, 787 (8th Cir. 1984) ; see also Rhinehart v. Scutt, 408 F. App’x 510, 514 (6th Cir. 2018) (suggesting that allegation of “continuing violation of . . . Eighth Amendment rights" would trigger a finding of irreparable harm). Below, the Court finds Petitioner is likely to succeed on the merits of this Fifth Amendment claim. Accordingly, “no further showing of irreparable injury is necessary.” Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”).
B. Likelihood of Success on the Merits Petitioner is likely to succeed on the merits of her claim that her continued confinement during the COVID-19 pandemic violates her Fifth Amendment rights. The Due Process Clause of the Fifth Amendment to the United States Constitution forbids the government from depriving a person of life, liberty, or property without due process of law. U.S. Const. amend.
32

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.314 Page 34 of 46
V. The protection applies to “all ‘persons’ within the United States, including [noncitizens], whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). As it pertains to Petitioner, the Due Process Clause prohibits the government from imposing torture or cruel and unusual confinement conditions on non-convicted detainees. See Bell v. Wolfish, 441 U.S. 520, 535 (1979) (“[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt.”). This type of Fifth Amendment claim is analyzed “under the same rubric as Eighth Amendment claims brought by prisoners.” Villegas v. Metropolitan Government of Nashville, 709 F.3d 563, 568 (6th Cir. 2013).
Eighth Amendment claims require a showing of deliberate indifference, see Farmer v. Brennan, 511 U.S. 825, 835 (1994), which has both an objective and a subjective component. Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th Cir. 2013) (citing Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)).
1. Objective Component The objective component is satisfied by showing that, “absent reasonable precautions, an inmate is exposed to a substantial risk of
33

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.315 Page 35 of 46
serious harm.” Richko v. Wayne Cty., 819 F.3d 907, 915 (6th Cir. 2016) (citing Amick v. Ohio Dep't of Rehab. & Corr., 521 Fed.Appx. 354, 361 (6th Cir.2013)). Respondents argue that the precautions they have taken at the Calhoun County Correctional Facility combined with the lack of a confirmed outbreak of COVID-19 at the facility show that Petitioner is unable to demonstrate she is at substantial risk of serious harm. (ECF No. 11, PageID.180.) Instead, Respondents argue that Petitioner merely has a “generalized risk” of contracting COVID-19, which is insufficient to prevail on a Fifth Amendment constitutional claim. (Id.) But as noted above, in Petitioner’s case, a generalized risk is a substantial risk.
As the Supreme Court explained in Helling v. McKinney, “[w]e have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate's current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year.” 509 U.S. 25, 33 (1993). “That the Eighth Amendment protects against future harm to inmates is not a novel proposition.” Id. “It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening
34

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.316 Page 36 of 46
condition in their prison on the ground that nothing yet had happened to them.” Id.
Respondents attempt to distinguish this case from Helling on the grounds that the Petitioner in Helling alleged a sufficiently imminent danger from “actual exposure to high levels of cigarette smoke because his former cellmate was a five-pack a day smoker.” (ECF No. 11, PageID.179 (citing Helling, 509 U.S. at 29).) Respondents argue that “Petitioner has not established that she either has been exposed to COVID-19, or that her exposure is “imminent.”” (Id.) But as the above analysis regarding the risk of irreparable injury to Petitioner demonstrates, the Respondents grievously underestimate the seriousness of the risk to Petitioner, in spite of precautionary measures and despite the lack of confirmed CCCF outbreak to date. The evergrowing number of COVID-19 outbreaks in prisons and detention facilities,8 despite a range of precautionary measures, demonstrates that
8 See, e.g., Ted Rod Roelofs, Coronavirus Cases Surge in Michigan’s Crowded Prisons, Bridge (Mar. 27, 2020), https://www.bridgemi.com/michigangovernment/coronavirus-cases-surge-michigans-crowded-prisons; Oregon Inmate in Salem Tests Positive for COVID-19, the First in the State Prison System, SalemReporter (Apr. 3, 2020), https://www.salemreporter.com/posts/2168/oregoninmate-in-salem-tests-positive-for-covid-19-the-first-in-the-state-prison-system (noting outbreak despite precautionary measures); Ames Alexander and Jessica
35

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.317 Page 37 of 46
the risk of a COVID-19 outbreak in Respondent’s facility is significant. Nor, given the percentage of asymptomatic COVID-19 cases and the virus’ incubation period of up to fourteen days, can Respondents reasonably assert, as they do, that there are no COVID-19 cases in CCCF; they can only allege that there are no confirmed cases. By the time a case is confirmed, it will almost certainly be too late to protect Petitioner’s constitutional rights. Petitioner, so long as she remains detained, is therefore exposed to a substantial risk of serious harm.
2. Subjective Component The subjective component is demonstrated by showing that “(1) the official being sued subjectively perceived facts from which to infer a substantial risk to the prisoner, (2) the official did in fact draw the inference, and (3) the official then disregarded that risk.” 819 F.3d at 915–16 (citing Rouster v. Cty. of Saginaw, 749 F.3d 437, 446 (6th Cir. 2014)). “Because government officials do not readily admit the subjective

Banov, In NC Prisons, Five Employees and Four Inmates Have Now Tested Positive

for

COVID-19,

Charlotte

Observer

(Apr.

1,

2020),

https://www.charlotteobserver.com/news/coronavirus/article241675886.html;

Alexandra Kelley, Louisiana Prison Records Third Inmate Death as a Result of the

Coronavirus, The Hill (Apr. 1, 2020), https://thehill.com/changing-america/wellbeing/prevention-cures/490839-louisiana-prison-records-third-inmate-death-as-a.

36

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.318 Page 38 of 46
component of this test, it may be demonstrated in the usual ways, including inference from circumstantial evidence. . . . ” Richko, 819 F.3d at 916 (citing Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009)). Additionally, “a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842.
Respondents concede the COVID-19 risk to Petitioner: “The government does not dispute that there is a health risk posed by COVID19 and that Petitioner is in the category of people identified to be at higher risk for serious health consequences if she contracts COVID-19.” (ECF No. 11, PageID.178.) Rightfully so: the above analysis pertaining to the risk of irreparable harm reveals that the substantial risk to Petitioner is obvious. Farmer, 511 U.S. at 842.
Respondents instead argue that Calhoun County Correctional Facility’s precautionary measures preclude a finding of deliberate indifference because government officials cannot be said to have disregarded the risk to Petitioner. As noted above, officials at the Calhoun County Correctional Facility have taken a range of precautionary measures to protect against a potential outbreak. (See
37

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.319 Page 39 of 46
ECF No. 11-3.) But as Plaintiff’s pleadings and the above analysis regarding irreparable injury demonstrate, even with these precautionary measures, in light of Petitioner’s underlying health conditions, she is not ensured anything close to “reasonable safety.” Farmer, 511 U.S. at 844. (See ECF No. 6-3, PageID.112 (Declaration of Doctor Golob stating, “[V]ulnerable people, people over the age of 50 and people of any age with lung disease . . . living in an institutional setting . . . are at grave risk of severe illness and death from COVID-19.”); ECF No. 6-1, PageID.87 (Declaration of Infectious Disease Epidemiologist Joseph Amon, stating “The only viable public health strategy available is risk mitigation. . . . [T]he public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety.”).) Based on the record before the Court, the only reasonable response by Respondents is the release of Petitioner; any other response demonstrates a disregard of the specific, severe, and life-threatening risk to Petitioner from COVID-19.
For the same reasons, Petitioner’s continued detention cannot “reasonably relate[] to any legitimate government purpose.” Bell v. Wolfish, 441 U.S. 520, 536-39 (1979) (holding that pretrial detention not
38

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.320 Page 40 of 46
reasonably related to a legitimate government purpose must be considered punishment and therefore contrary to the Fifth Amendment). In their response, Respondents do not directly address the justification for Petitioner’s continued detention. The Court notes that Petitioner is in civil detention pending removal proceedings pursuant to 28 U.S.C. § 1226(c). Petitioner faces significant risk of death due to COVID-19; accordingly, her continued confinement at the Calhoun County Correctional Facility is both unrelated and contrary to the government purpose of carrying out her removal proceedings.
Both the objective and subjective components are met; Petitioner has shown a likelihood of success on the merits. The Court reiterates that at this early stage in the litigation, Petitioner need not show a certainty of success on the merits. Indeed, “the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Northeast Ohio Coalition for Homeless and Service Employees Intern. Union, Local 1199, 467 F.3d at 1009 (6th Cir. 2006). Given the risk and severity of irreparable harm to Petitioner and the weight of public health evidence indicating release
39

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.321 Page 41 of 46
as the only reasonable option under these facts, Petitioner has met her current burden with respect to the merits of her claim.
Respondents nonetheless cite to some authority that release is an inappropriate remedy for Petitioner’s claim. See Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005) (noting release is not among the proper remedies for Eighth Amendment deliberate indifference claims, which are limited to injunctive relief for proper treatment and damages); Heximer v. Woods, No. 08-14170, 2018 WL 1193368, at *2 (E.D. Mich. Mar. 8, 2018) (noting that “release from custody is not an available remedy for a deliberate indifference claim.”). As explained above, Petitioner has shown a likelihood of success on the merits of her claim that given the extraordinary nature of the COVID-19 pandemic, no set of possible confinement conditions would be sufficient to protect her Fifth Amendment rights. Release from custody represents the only adequate remedy in this case, and it is within this Court’s broad equitable power to grant it. See Swann v. Charlotte–Mecklenburg Bd. of Educ., 402 U.S. 1, 15–16 (1971) (“Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”)
40

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.322 Page 42 of 46
3. Qualified Immunity In its supplemental brief, Respondents note that to the extent Petitioner brings a civil rights case, Respondents are entitled to assert a defense of qualified immunity. (ECF No. 19, PageID.317.) Qualified immunity is unavailable as a defense in cases seeking injunctive relief. See Pearson v. Callahan, 555 U.S. 223, 242 (2009) (noting that qualified immunity defense is not available in “suits against individuals where injunctive relief is sought in addition to or instead of damages”); Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982) (describing qualified immunity as “immunity from suits for damages”). Because Petitioner here seeks only declaratory and injunctive relief, qualified immunity does not apply. C. Balance of Equities and Public Interest When the government opposes the issuance of a temporary restraining order, as Respondents do here, the final two factors—the balance of equities and the public interest—merge, because “the government’s interest is the public interest.” Pursuing America’s Greatness v. Fed. Election Comm’n, 831 F.3d 500, 512 (D.C. Cir. 2016) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).
41

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.323 Page 43 of 46
The public interest favors Petitioner’s release because of the risk that Petitioner’s constitutional rights will be deprived absent an injunction. “[I]t is always in the public interest to prevent the violation of a party's constitutional rights.” G & V Lounge Inc. v. Mich. Liquor Control Comm., 23 F.3d 1071, 1079 (6th Cir.1994).
Additionally, Petitioner’s release will protect public health. Given the highly unusual and unique circumstances posed by the COVID-19 pandemic and ensuing crisis, “the continued detention of aging or ill civil detainees does not serve the public’s interest.” Basank, 2020 WL 1481503, at *6; see also Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (“the design and operation of detention settings promotes the spread of communicable diseases such as COVID-19”); Castillo v. Barr, CV-20-00605-TJH (C.D. Cal. 2020). Protecting public health and safety is in the public interest. See Neinast v. Bd. Of Trustees, 346 F.3d 585, 592 (6th Cir. 2003) (recognizing public health and safety as legitimate government interests).
Respondents argue that public interest favors Petitioner’s continued detention because “the public interest in enforcement of the
42

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.324 Page 44 of 46
United States’ immigration laws is significant.” (ECF No. 11, PageID.187 (citing United States v. Martinez-Fuerte, 428 U.S. 543, 556–58 (1976); Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981) (“The Supreme Court has recognized that the public interest in enforcement of the immigration laws is significant.”)).
Respondents point to only one immigration law that will see continued enforcement by denying relief to Petitioner. That law is 8 U.S.C. § 1226(c), and it authorizes Petitioner’s continued detention. But as set forth above, Petitioner’s continued detention is in violation of the United States Constitution, to which 8 U.S.C. § 1226(c) must give way.
The enforcement of the remainder of U.S. immigration laws against Petitioner will continue unabated should the Court grant Petitioner relief. A hearing on Petitioner’s request for cancellation of removal is scheduled for April 14, 2020. (ECF No. 11, PageID.170). Respondents do not argue that Petitioner’s release will jeopardize her appearance at that hearing, nor do they argue that Petitioner’s release will undermine her removal from this country, should Petitioner’s defense fail and should conditions allow such removal.
43

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.325 Page 45 of 46
The public interest and balance of equities demand that the Court protect Petitioner’s constitutional rights and the public health over the continued enforcement of a detention provision that, as applied to Petitioner, is unconstitutional. The remaining factors counsel granting Petitioner relief.
Because all four factors weigh in favor of issuing emergency injunctive relief, Petitioners motion for a temporary restraining order is granted.
IV. Conclusion For the reasons stated above, Petitioner’s Application for a Temporary Restraining Order is GRANTED IN PART. Respondent Adducci is ORDERED to release Petitioner on April 6, 2020 on her own recognizance. Petitioner will be subject to the following restrictions: Petitioner is subject to fourteen days of home quarantine; Petitioner must comply with all Michigan Executive Orders; and Petitioner must appear at all hearings pertaining to her removal proceedings. Respondents may impose other reasonable nonconfinement terms of supervision. Respondents are further RESTRAINED from arresting Petitioner for civil immigration detention purposes until the State of Emergency in
44

Case 2:20-cv-10949-LVP-MJH ECF No. 1-16 filed 04/17/20 PageID.326 Page 46 of 46

Michigan (related to COVID-19) is lifted or until further Court Order

stating otherwise.

The Temporary Restraining Order will expire on April 17, 2020, at

6:30 p.m. No later than April 10, 2020, at 12:00 p.m., Respondents must

show cause why this Order should not be converted to a preliminary

injunction. Petitioner may file a response no later than April 16, 2020, at

12:00 p.m.

IT IS SO ORDERED.

Dated: April 6, 2020 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on April 6, 2020.
s/William Barkholz WILLIAM BARKHOLZ Case Manager

45

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.330 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,

Case No. 20-cv-10949-LVP-MJH Hon. Linda V. Parker

Plaintiffs,

v.

MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,

Defendants.

PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Plaintiffs Jamaal Cameron, Richard Briggs, Raj Lee, Michael Cameron, and

Mathew Saunders, hereby move this Court, pursuant to Fed. R. Civ. P. 65, for a

temporary restraining order. The grounds for this motion are set forth in the Brief

in Support of Plaintiffs’ Motion for Temporary Restraining Order and Preliminary

Injunction, filed herewith and the accompanying Declarations and Exhibits in

support.

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.331 Page 2 of 36
Because of the grave risk to health and life at stake, Plaintiffs request that this Court consider this motion on an emergency basis and that the Court grant a temporary restraining order requiring the release of members of the Medically Vulnerable Subclass pending briefing and argument.
Plaintiffs further request that the court issue a temporary restraining order requiring Defendants to immediately undertake the following minimum measures to improve the hygiene and safety at the Oakland County Jail: 1) Ensure that each incarcerated person receives, free of charge: (1) an
individual supply of liquid hand soap and paper towels sufficient to allow frequent hand washing and drying each day, and (2) an adequate supply of disinfectant hand wipes or disinfectant products effective against the virus that causes COVID-19 for daily cleanings; 2) Ensure that all incarcerated people have access to hand sanitizer containing at least 60% alcohol; 3) Provide access to daily showers and daily access to clean laundry, including clean personal towels and washrags after each shower; 4) Require that all Jail staff wear personal protective equipment, including masks, when interacting with any person or when touching surfaces in cells or common areas;
2

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.332 Page 3 of 36
5) Require that all Jail staff wash their hands with soap and water or use hand sanitizer containing at least 60% alcohol both before and after touching any person or any surface in cells or common areas;
6) Take each incarcerated person’s temperature daily (with a functioning and properly operated thermometer) to identify potential COVID-19 infections;
7) Assess (through questioning) each incarcerated person daily to identify potential COVID-19 infections;
8) Conduct immediate testing for anyone displaying known symptoms of COVID-19;
9) Provide adequate spacing of six feet or more between people incarcerated, to the maximum extent possible at the Jail’s current population level, so that social distancing can be accomplished;
10) Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 receive adequate medical care and are properly quarantined in a non-punitive setting, with continued access to showers, recreation, mental health services, reading materials, phone and video calling with loved ones, communications with counsel, and personal property; Respond to all emergency (as defined by the medical community) requests for medical attention within an hour;
3

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.333 Page 4 of 36
11) Provide sufficient disinfecting supplies, free of charge, so incarcerated people can clean high-touch areas or items (including, but not limited to, phones and headphones) between each use;
12) Effectively communicate to all people incarcerated, including low-literacy and non-English-speaking people, sufficient information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices to reasonably ensure that individuals are able to take precautions to prevent infection;
13) Waive all medical co-pays for those experiencing COVID-19-related symptoms;
14) Waive all charges for medical grievances during this health crisis; 15) Cease and desist (a) all use of punitive transfers or threats of transfers to
areas of the jail that have higher infection rates (or any other form of threat involving increased exposure to infection) for any infraction whatsoever; (b) all retaliation in any form, against class members who raise concerns either formally or informally about the health and safety conditions in the Jail; (c) all punitive measures taken against class members who decline to engage in labor on the grounds that such labor represents a threat to their health and safety or the health and safety of other class members.
4

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.334 Page 5 of 36
In addition, Plaintiffs request that the court immediately order Defendants to take the following measures in preparation for a TRO hearing, assuming the court orders such a hearing: 1) Require Defendants to promptly provide Plaintiffs and the Court with a list
of all individuals who are members of the Medically Vulnerable Subclass as defined in paragraph 94 of Plaintiffs’ Complaint, that includes their location, charge and bond status; 2) Require Defendants to promptly thereafter provide Plaintiffs and the Court with a list of any individuals in the Medically Vulnerable Subclass who Defendants object to releasing and the basis for that objection. Lastly, Plaintiffs request that the court 1) set an evidentiary hearing to examine allegations in Plaintiffs’ emergency motion for a Temporary Restraining Order and Preliminary Injunction; 2) set a time and date for a hearing in which the Court will resolve any disputes about whether certain listed individuals are entitled to relief; 3) order an inspection of the jail facilities by a medical expert in infectious disease who can report to the court at the hearing on allegations and answer critical questions; and 4) grant leave to conduct expedited narrow limited discovery, which the parties can confer about. Local Rule 7.1(a) requires Plaintiffs to ascertain whether this motion will be opposed. Because this motion is being filed contemporaneously with the complaint,
5

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.335 Page 6 of 36

there is not yet an attorney of record for Defendants in this case. Plaintiffs’ counsel did place a telephone call to the Oakland County Corporation Counsel’s office to explain the nature of this motion and its legal basis. Plaintiffs’ counsel did not obtain concurrence in the relief sought.
Plaintiffs’ counsel has emailed Corporation Counsel Joellen Shortley contemporaneously with this filing to alert her that this emergency filing is forthcoming and to provide her with copies of this motion, the supporting brief, Plaintiffs’ complaint, and Plaintiffs’ motion for class certification. Plaintiffs’ counsel is prepared to appear by telephone immediately. Each day that passes risks Plaintiffs’ lives. This case cannot wait.
Respectfully submitted,

/s/ Krithika Santhanam Krithika Santhanam (DC Bar No. 1632807)* Thomas B. Harvey (MBE #61734MO)* Advancement Project National Office 1220 L Street, N.W., Suite 850 Washington, DC 20005 Tel: (202) 728-9557 Ksanthanam@advancementproject.org Tharvey@advancementproject.org
/s/ Philip Mayor Philip Mayor (P81691) Daniel S. Korobkin (P72842) American Civil Liberties Union
Fund of Michigan 2966 Woodward Ave.

/s/ Cary S. McGehee Cary S. McGehee (P42318) Kevin M. Carlson (P67704) Pitt, McGehee, Palmer,
Bonanni & Rivers, PC 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 (248) 398-9800 cmcgehee@pittlawpc.com kcarlson@pittlawpc.com
/s/ Allison L. Kriger________ Allison L. Kriger (P76364) LaRene & Kriger, PLC 645 Griswold, Suite 1717 Detroit, MI 48226

6

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.336 Page 7 of 36

Detroit, MI 48201 (313) 578-6803 pmayor@aclumich.org dkorobkin@aclumich.org

(313) 967-0100 Allison.kriger@gmail.com

/s/ Alexandria Twinem Alexandria Twinem
(D.C. Bar No. 1644851)* Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 (202) 894-6126 alexandria@civilrightscorps.org

Attorneys for Plaintiffs/Petitioners *Applications for admission forthcoming

Dated: April 17, 2020

7

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.337 Page 8 of 36

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,
v. MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,
Defendants.

Case No. 20-cv-10949-LVPMJH Hon. Linda V. Parker
Emergency Motion

BRIEF IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.338 Page 9 of 36
TABLE OF CONTENTS Page
TABLE OF CONTENTS.............................................................................................................i TABLE OF AUTHORITIES .......................................................................................................ii INTRODUCTION .......................................................................................................................1 BACKGROUND AND FACTS ..................................................................................................2 I. The COVID-19 Crisis Is a Health Crisis Unmatched in Living Memory .............................2 II. The COVID-19 Jail Outbreak Is An Extreme Threat to Public Health .................................4 III. The Oakland County Jail’s Woefully Insufficient Hygienic Conditions...............................6
1. Detained people cannot practice social distancing. ....................................................6 2. Defendants do not properly screen or quarantine. ......................................................6 3. Defendants do not provide adequate or timely health care.........................................8 4. Defendants maintain dangerous conditions and fail to provide
even basic hygiene supplies to the people confined at the Jail. ..................................9 5. Defendants fail to provide information about COVID-19 and its spread. ..................11 ARGUMENT ...............................................................................................................................12 A. Plaintiffs are likely to succeed on the merits because Defendants are violating their Eighth and Fourteenth Amendment rights. ......................................................................13 1. Objective Risk of Harm .............................................................................................15 2. Subjective Indifference ..............................................................................................17 B. Plaintiffs Will Suffer Irreparable Harm. ..........................................................................20 C. The Public Interest and Balance of Equities Weigh Heavily in Plaintiffs’ Favor. ..........22 CONCLUSION ............................................................................................................................24
i

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.339 Page 10 of 36

TABLE OF AUTHORITIES

CASES

Page(s)

ACLU of Ky. v. McCreary Cty., Ky., 354 F.3d 438, 445 (6th Cir. 2003) ..................................... 22 Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000) .................................................................. 16 City of Dearborn v. Comcast of Mich., 558 F. Supp. 2d 750,
754 (E.D. Mich. 2008) .............................................................................................................. 14 City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) ................................................... 15 Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 222 (6th Cir. 2016) ................................................ 26 Elrod v. Burns, 427 U.S. 347, 373 (1976) .................................................................................... 23 Estelle v. Gamble, 429 U.S. 97, 104 (1976) ................................................................................. 15 Farmer v. Brennan, 511 U.S. 825, 834 (1994) ............................................................................. 15 G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071,
1079 (6th Cir. 1994).................................................................................................................. 25 Helling v. McKinney, 509 U.S. 25, 33 (1993)......................................................................... 17, 23 In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985)................................................ 14 Malam v. Adducci, __ F. Supp. 3d __, No. 20-cv-10829, 2020
WL 1672662 (E.D. Mich. Apr. 6, 2020)................................................................................... 22 Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008) ....................................... 13 Richko v. Wayne Cty., Mich., 819 F.3d 907, 915 (6th Cir. 2016) ................................................. 15 Thakker v. Doll, __ F. Supp. 3d __, No. 20-cv-480, 2020 WL 1671563
(M.D. Pa. Mar. 31, 2020).......................................................................................................... 20 United States v. Stephens, __ F. Supp. 3d __, No. 15-CR-95, 2020
WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) ........................................................................... 6 Wilson v. Gordon, 822 F.3d 934, 958 (6th Cir. 2016) .................................................................. 23 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) ...................................................... 13
Statutes 28 U.S.C. § 2241....................................................................................................................... 2, 13 42 U.S.C. § 1983....................................................................................................................... 2, 13

ii

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.340 Page 11 of 36
INTRODUCTION An outbreak of the novel coronavirus is occurring in the Oakland County Jail (“Jail”), where Defendants confine over 800 human beings in life-threatening conditions. Plaintiffs sleep as close as one foot from each other, have limited or no access to hygiene products and cleaning supplies, are not properly quarantined when sick, and—because medical staff have stopped conducting rounds—must wait days to seek medical attention. Many people confined at the Jail are medically vulnerable to the COVID-19 disease, and their lives are at risk. As of the filing of this motion, more than 23 inmates as well as jail staff members have tested positive for the virus. Based on the virus’s spread in other jails, this number will be in the hundreds in less than a week. See [Ex. A, Cook County Jail Population and COVID Tracker]. As COVID-19 spreads inside and outside the Jail, time is running out to save Plaintiffs’ lives and to prevent the Jail from becoming an epicenter of community infection. Absent immediate intervention from this Court, people will die because of Defendants’ deliberate indifference. Plaintiffs seek two forms of immediate relief. First, they seek class-wide relief requiring Defendants to take critical steps inside the Jail to safeguard people who, due to the nature of their confinement, are at serious risk of infection and death in a global pandemic. Second, they seek immediate release from confinement for a subclass of people who, because of age or preexisting medical conditions, are at
1

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.341 Page 12 of 36
particularly grave risk of death from COVID-19, a risk that cannot be sufficiently mitigated by safeguards or preventive measures in the Jail. This relief is appropriate either through 28 U.S.C. § 2241 or, in the alternative, through 42 U.S.C. § 1983.
This extraordinary moment requires the Court’s immediate intervention. The “horizon of risk for COVID-19 in this facility is a matter of days, not weeks.” Compl. Ex. 14 (“Lauring Decl.”) ¶ 39. Immediate relief is also in the public interest. A rapid outbreak amongst the Jail population would drain the Southeast Michigan metropolitan area of limited resources, including ventilators. For these reasons, and for the reasons explained further below, the Court should grant Plaintiffs’ motion.
BACKGROUND AND FACTS I. The COVID-19 Crisis Is a Health Crisis Unmatched in Living Memory.
We are in the midst of an unprecedented public health emergency. See Compl. ¶ 19 (citing sources). The number of people infected by COVID-19 has grown exponentially in this country since the first case was identified in January. Id. ¶ 20. By March 11, 2020, the World Health Organization defined the outbreak as a global pandemic. Id. ¶ 19. As of April 15, over 600,000 people have been diagnosed with COVID-19 in the United States, with over 24,000 deaths confirmed.1 Without
1 Coronavirus 2019, Centers for Disease Control, https://www.cdc.gov/ coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited Apr. 15, 2020).
2

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.342 Page 13 of 36
effective public health intervention, the Centers for Disease Control and Prevention (“CDC”) project that as many as 2.2 million American people will die. Id. ¶ 20.
The experience of severe illness caused by COVID-19 has been compared to “drowning in your own blood.” Id. ¶ 25. COVID-19 is a highly contagious virus that can severely damage lung tissue, impede cardiac functions (causing heart failure), and permanently harm other organs. Id. ¶ 24. Complications manifest at an alarming pace, and the required levels of medical support—which include highly specialized equipment like ventilators as well as an entire team of care providers— already exceeds local health care resources in Southeast Michigan.2 Approximately 20% of people infected experience life-threatening complications; between 1% and 3.4% die. Id. ¶ 27. The fatality rate is about ten times higher than a severe seasonal influenza, even in countries with highly effective health care systems. Id.
Although everyone is at risk of contracting COVID-19, some populations are at higher risk for severe health results. Certain underlying medical conditions including lung disease, asthma, chronic obstructive pulmonary disease, chronic liver or kidney disease, diabetes, epilepsy, hypertension, compromised immune systems, blood disorders, inherited metabolic disorders, strokes, and pregnancy increase the
2 See, e.g., Kristen Jordan Shamus & Darcie Moran, Nurses Protest Conditions at Detroit’s Sinai-Grace, Said They Were Told to Leave, Detroit Free Press (Apr. 6, 2020), https://www.freep.com/story/news/health/2020/04/06/detroit-dmc-sinaigrace-nurses/2953385001/.
3

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.343 Page 14 of 36
risk for individuals of any age. Id. ¶ 23. People over the age of fifty also face greater chances of serious illness or death. Id. The only known effective measure to mitigate the risk is to prevent infection in the first instance. Id. ¶ 29.
Accordingly, medical experts, officials, and the CDC urge “social distancing”—isolating oneself from other people at a minimum distance of six feet—as well as frequent hand-washing, use of hand sanitizer, and frequent cleaning and disinfecting of high touch surfaces and objects. Id. ¶ 30. These measures are particularly important in jails; congregate settings that can rapidly become a “public health disaster unfolding before our eyes.” Lauring Decl. ¶ 10. II. The COVID-19 Jail Outbreak Is An Extreme Threat to Public Health.
People incarcerated in the Jail are at heightened risk of infection and death from COVID-19. According to experts in public health in jails and prisons, “the risk posed by COVID-19 in jails and prisons is significantly higher than in the community, . . . in terms of risk of transmission, exposure, and harm to individuals who become infected.” Compl. ¶ 32; see also Lauring Decl. ¶¶ 9-10. This is due to a number of factors, including forced proximity of detained individuals, their inability to protect themselves through social distancing, lack of medical and hygiene supplies, heavy reliance on outside hospitals for serious medical care, forced labor of incarcerated people in cleaning their own facilities with insufficient supplies, constant cycling of people through the jails, and inadequate medical care
4

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.344 Page 15 of 36
within the jail itself. Compl. ¶ 32; Lauring Decl. ¶¶ 12-16. The CDC’s guidance for detention facilities acknowledges that incarcerated
people live in conditions “heightening the potential for COVID-19 to spread.” Compl. ¶ 36. The growing devastation in other jails around the country is a harbinger for what awaits Oakland County. The first case of COVID-19 in the Jail was first reported two weeks ago.3 In New York City, less than a month from the detection of the first case at Riker’s Island, 334 incarcerated people and 627 jail staff have tested positive; two jail officers have died; and more than 800 incarcerated people are in quarantine. Id. ¶ 40. The COVID-19 infection rate in the city’s jails is presently eight times higher than the rest of the city. Id.
Nor can an outbreak be contained inside the Jail. What happens to the people trapped inside this ticking time bomb affects others who cycle through, including correctional and medical staff. Compl. Ex. 1 (“Stern Decl.”) ¶11. The outbreak then spreads to staff’s families and the community. Id. And jail outbreaks can quickly overwhelm regional hospitals, making resources unavailable to treat others suffering from COVID-19 or life-threatening conditions like heart attacks. Compl. ¶ 40; Stern Decl. ¶ 11. As courts have noted, “[t]he more people we crowd into [a] facility, the
3 James Dickson, First Oakland County Jail inmate tests positive for coronavirus, Detroit News (Mar. 30, 2020), https://www.detroitnews.com/story/news/ local/oakland-county/2020/03/30/first-oakland-county-jail-inmate-tests-positivecoronavirus/5088382002/.
5

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.345 Page 16 of 36
more we’re increasing the risk to the community.” United States v. Stephens, __ F. Supp. 3d __, No. 15-CR-95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020). III. The Oakland County Jail’s Woefully Insufficient Hygienic Conditions
1. Detained people cannot practice social distancing. Social distancing is impossible at the Jail. In some areas, people sleep a foot apart or less. Ex. G (“Saunders Decl.”) ¶ 2; Ex. B (“J. Cameron Decl.”) ¶ 9. At most, arrangements allow three feet of distance at night. Ex. H (“Arsineau Decl.”) ¶ 2. Inmates share showers, toilets, and sinks. Ex. I (“Bates Decl.”) ¶ 9. Some bunks adjoin toilets. Ex. C (“Briggs Decl.”) ¶ 9. When people are allowed to leave their cells or are in common space, they are often within one or two feet of others. Arsineau Decl. ¶ 3. Bates Decl. ¶ 9; J. Cameron Decl. ¶ 16. In the main building, there are holding cells—referred to as “the tanks”—with no bunks at all. Ex. D (“Lee Decl.”) ¶¶ 18-19; J. Cameron Decl. ¶ 9. Inmates sleep on the concrete floor in close proximity, “essentially [being] forced to cuddle.” J. Cameron Decl. ¶ 9. People in the tanks can reach through the bars in front of their cell and into the next cell, where COVID-19 patients are housed in similarly dungeon-like circumstances. Lee Decl. ¶ 21; J. Cameron Decl. ¶9.
2. Defendants do not properly screen or quarantine. In the tanks, people are shuffled from cell to cell with no consideration for who is symptomatic and who is not. Cells with people in quarantine for COVID-19
6

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.346 Page 17 of 36
are next to cells with presumptively healthy individuals. Lee Decl. ¶ 23. One cell under quarantine was emptied, and the healthy people in the next cell were immediately moved into it without it having been cleaned first. Lee Decl. ¶ 23. Hair was still on the floor, and the toilet had not been cleaned. Lee Decl. ¶ 23.
Defendants are not properly monitoring or testing inmates for COVID-19. Jason Arsineau, a detainee and a paramedic, watched officers incorrectly performing basic tasks, such as taking people’s temperatures by testing right after meals and by contaminating the thermometer without cleaning it. Arsineau Decl. ¶ 6. Some officers do not even read the thermometer. Lee Decl. ¶ 5. And, because COVID-19 carriers can be asymptomatic for 2 to 14 days, Compl. ¶ 27, screening for symptoms alone is woefully insufficient to prevent spread within the Jail.
And symptomatic people are not properly isolated. Inmates who work as kitchen trustees4 have been required to prepare and serve communal food, despite exhibiting symptoms of COVID-19, risking spread to everyone who received food from them. Ex. F (“Kucharski Decl.”) ¶ 5. For example, around the end of March 2020, Arsineau had most of the symptoms of COVID-19 and told a deputy he was feeling sick and should not be serving food. Arsineau Decl. ¶5. The deputy responded, “Motherfucker, you do what I tell you to do, and you are going to serve
4 Trustees are detained people who are tasked with responsibilities like food service, laundry, and cleaning. Saunders Decl. ¶ 6; Arsineau Decl. ¶ 5.
7

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.347 Page 18 of 36
food.” Arsineau continued to serve food to others while sick for four days until he could not get out of bed, leading a deputy to physically assault him. Id. And when Matthew Saunders became sick with suspected COVID-19 and a fever of 103 degrees, he was quarantined in the medical ward for only four days, and then returned to his dorm without being tested for COVID-19. Saunders Decl. ¶¶ 3, 5.
People who are sniffling and coughing are in the same cells as asymptomatic people, and the Jail is not testing any of them. Lee Decl. ¶ 20; Ex. E (“M. Cameron Decl.”) ¶ 6. On April 11, 2020, one person in a quarantined cell died from suspected COVID-19. Lee Decl. ¶ 23. Two of the deceased’s cellmates were then moved to a cell with presumptively healthy prisoners. Id.
3. Defendants do not provide adequate or timely health care. Those who have been exposed to the virus or exhibit symptoms are not properly treated. David Kucharski, who also suffers from asthma, told a nurse about his symptoms on April 4, 2020. Kucharski Decl. ¶ 8. The nurse told him to let her know if his symptoms got worse, and gave everyone in his cell some Tamiflu, with instructions to take it if they had COVID-19 symptoms. Id.; Saunders Decl. ¶ 9. The nurses have not been back since. Kucharski Decl. ¶ 8; Saunders Decl. ¶ 9. Kucharski tried to ask a guard for medical attention, but was told that he would have to wait for a nurse. When Kucharski told the guard that the nurses were not coming, the guard said he could not help. Kucharski Decl. ¶ 10.
8

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.348 Page 19 of 36
When Richard Briggs began to feel shortness of breath and loss of smell and taste, two nurses told him that he did not have COVID-19 and would not be tested. Briggs Decl. ¶ 8. One of the nurses suggested that he could not have shortness of breath, since he was able to speak to her. Id. After this, many of the others in his cell became sick with the same symptoms. Briggs Decl. ¶ 9.
During the four days that Saunders was quarantined in the medical unit, he would go hours without anyone coming to check on him. Saunders Decl. ¶ 4. His meals were placed just inside his door, but he was too sick to retrieve them, and guards removed the meals without him eating. Id.
The medical staff do not make rounds at all in certain parts of the jail. In fact, many people who take prescription drugs were dispensed a thirty-day supply, with instruction to take it on their own. J. Cameron Decl. ¶ 16; Lee Decl. ¶ 4. People have been advised that doctors will not return until May. J. Cameron Decl. ¶ 16.
4. Defendants maintain dangerous conditions and fail to provide even basic hygiene supplies to the people confined at the Jail.
The Jail does not supply enough soap for people to regularly wash their hands. Briggs Decl. ¶6; Kucharski Decl. ¶15. Some have not received soap in over a week. Kucharski Decl. ¶15; Saunders Decl. ¶11. The commissary has been closed for two weeks, so there is no way to purchase more soap or any other hygiene products. Arsineau Decl. ¶ 11; Briggs Decl. ¶ 6. No one in the Jail has access to hand sanitizer or tissues. E.g., Arsineau Decl. ¶ 13–14. Jail residents are given inadequate amounts
9

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.349 Page 20 of 36
of toilet paper, sometimes sharing one roll among six toilets, spreading germs to each person who touches the role. J. Cameron Decl. ¶ 18. There is no sanitary way for inmates to dry their hands after they have been washed. J. Cameron Decl. ¶ 20.
Most people get a change of uniform and linens only once a week. Kucharski Decl. ¶ 19. Some cells have a dirty communal bucket that is never replaced in which to wash their clothes and underwear during the week. Briggs Decl. ¶ 3. Recently, laundry service stopped entirely for over two weeks. Briggs Decl. ¶ 15.
Although there is access to showers, the showers are filthy with scum, mold, clumps of hair, and insects; there is no way to clean them. J. Cameron Decl. ¶17; Briggs Decl. ¶ 5; Kucharski Decl. ¶ 17. In some areas of the Jail, bottles of highly diluted DMQ (a floor cleaner) is the only disinfectant available. J. Cameron Decl. ¶ 13. But, lacking any cleaning equipment they have no way to clean their bunks and other commonly touched surfaces in the quarter. Id. In other parts of the Jail, inmates do not have access to adequate cleaning supplies to clean the communal showers in the bathrooms. Kucharski Decl. ¶17. They rely on an unidentified pink liquid meant to clean toilets, to clean everything. Id.
Common surfaces and items that are touched frequently are not cleaned regularly. M. Cameron Decl. ¶ 8. There are no rags or cleaning supplies to clean shared surfaces. Briggs Decl. ¶ 4. The rails on the staircase are cleaned every other day and a shared water cooler is not sanitized between uses. M. Cameron Decl. ¶ 8.
10

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.350 Page 21 of 36
Trustees tasked with cleaning receive one pair of gloves that they must reuse every time they clean. M. Cameron Decl. ¶ 7. Some are not given masks. M. Cameron Decl. ¶ 7. Some were made to clean a van that transported an inmate with suspected COVID-19 to the hospital with only cloth face masks as protection. Saunders Decl. ¶ 6. Food service trustees were made to work for days with COVID19 symptoms. Arsineau Decl. ¶ 5; Kucharski Decl. ¶ 5. Kitchen trustees must handle the same carts and plastic trays that ungloved jail workers do. J. Cameron Decl. ¶ 4. Some food trustees are only given a pair of gloves and no mask when distributing food to others. J. Cameron Decl. ¶¶ 4-7. Laundry trustees are afraid to work with some of the laundry, which comes in biohazard bags. Bates Decl. ¶ 11-12. Several laundry trustees quit because they felt the job was unsafe. J. Cameron Decl. ¶ 25.
5. Defendants fail to provide information about COVID-19 and its spread.
While the Jail has done little to educate those detained about COVID-19, Bates Decl. ¶ 10; Briggs Decl. ¶ 7; M. Cameron Decl. ¶ 4, the guards are well aware of its spread in the jail and use it as a threat with which to terrorize inmates. J. Cameron Decl. ¶¶ 8–10. They threaten and punish people who do not want to perform dangerous work with further exposure. Id. One officer threatened Raj Lee with relocation from the jail annex building to the main building as a punishment, telling Lee that he would not want to go to the main building because there was an outbreak there. Lee Decl. ¶ 9. Lee wrote a grievance about the threat, which a guard
11

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.351 Page 22 of 36
handed to the officer, who promptly transferred Lee to the Tank where social distancing is least possible and quarantined people are kept. Lee Decl. ¶¶10-16. Jamaal Cameron was similarly punished for raising health concerns about food distribution. J. Cameron Decl. ¶¶ 8–9. Laundry trustees are similarly threatened. Bates Decl. ¶ 12.
ARGUMENT PLAINTIFFS ARE ENTITLED TO A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION. Plaintiffs and class members are at imminent risk of death or serious injury. If this litigation is decided in the ordinary course, many class members will become seriously ill and die before final judgment. Numerous others will suffer severe pain or organ damage. Plaintiffs seek two forms of immediate relief. First, on behalf of the class as a whole, Plaintiffs seek an order requiring Defendants to follow procedures, recommended by medical professionals and the CDC Guidance on the management of COVID-19 in jails and correctional settings, that ensure those detained at the Jail: 1) have access to adequate and timely medical treatment to screen, test, and treat symptoms; 2) can practice social distancing; 3) can maintain necessary hygiene; and 4) are educated about COVID-19. Second, medically vulnerable Plaintiffs, on behalf of a subclass composed of similarly vulnerable detainees, seek immediate release from the chaotic, infectious jail environment, because there are no measures that Defendants can take within the
12

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.352 Page 23 of 36
facility to protect them from a high risk of death or serious bodily harm. Their lives literally depend on how quickly they are released. This relief is appropriate either through 28 U.S.C. § 2241 or, in the alternative, through 42 U.S.C. § 1983.
Plaintiffs easily meet the legal requirements for the Court to grant them a temporary restraining order and preliminary injunction requiring Defendants to change their practices at the Jail to conform to medically accepted means of preventing and mitigating the spread of COVID-19 in the Jail and release members of the medically vulnerable subclass. As explained below, (1) they are likely to succeed on the merits of their claims; (2) they are likely to suffer irreparable harm in the absence of relief; (3) the balance of equities weighs in their favor; and (4) an injunction is in the public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008). The court must balance each of the four factors and “no single factor is dispositive.” City of Dearborn v. Comcast of Mich., 558 F. Supp. 2d 750, 754 (E.D. Mich. 2008). Where, as here, plaintiffs demonstrate “irreparable harm which decidedly outweighs any potential harm to the defendant,” the “degree of likelihood of success required” is less, and a plaintiff need only show “serious questions going to the merits.” In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985).
A. Plaintiffs are likely to succeed on the merits because Defendants are violating their Eighth and Fourteenth Amendment rights.
13

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.353 Page 24 of 36
Plaintiffs and class members are highly likely to succeed on their claims because Defendants are deliberately disregarding the risk that Plaintiffs will contract COVID-19 within the current conditions at the Jail, in violation of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. Defendants’ failure to implement the basic steps recommended by health experts, the CDC, and Governor Gretchen Whitmer5—including access to basic medical screening and treatment protocols for infectious disease, providing soap and water so that those detained can wash their hands after touching objects or other people, giving people sufficient space to stay at least six feet away from others at all times, the ability to clean and disinfect all surfaces touched by multiple people at least once per day, and access to information about COVID-19—constitutes deliberate indifference.
The government has a constitutional duty to protect those it detains from “a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). This right arises under the Eighth Amendment for after conviction, see id.; Estelle v. Gamble, 429 U.S. 97, 104 (1976), and under the Fourteenth Amendment’s Due Process Clause pre-conviction, see City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); Richko v. Wayne Cty., Mich., 819 F.3d 907, 915 (6th Cir. 2016).
5 Compl. Exhibit 11, Executive Order 2020-29 (March 29, 2020).
14

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.354 Page 25 of 36
To demonstrate a violation of the Eighth Amendment, convicted prisoners must show both an objectively substantial risk of serious harm and that prison officials subjectively “acted with ‘deliberate indifference’” towards the hazardous condition in question. Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000). While the Sixth Circuit traditionally analyzed Fourteenth Amendment pretrial detainee claims and Eighth Amendment prisoner claims “under the same rubric,” Richmond v. Huq, 885 F.3d 928, 937 (6th Cir. 2018), the Supreme Court’s decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015), “calls into serious doubt” whether pre-trial detainees need to satisfy the subjective prong of the inquiry. Richmond, 885 F.3d at 938 n.3.6 Accordingly, the Pre-Trial Subclass can prove a Fourteenth Amendment claim by demonstrating solely that they face a substantial risk of serious harm. In any event, both the Eighth and Fourteenth Amendment standards are satisfied here.
1. Objective Risk of Harm Plaintiffs confined at the Jail are at a substantial risk of serious harm from COVID-19. The risk of exposure to a deadly infectious disease constitutes a serious risk to health. A “condition of confinement that is sure or very likely to cause serious illness and needless suffering” to someone detained, which includes “exposure of
6 See also, e.g., Gordon v. Cty. of Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018), cert. denied sub nom. Cty. of Orange, Cal. v. Gordon, 139 S. Ct. 794, 202 L. Ed. 2d 571 (2019); Darnell v. Pineiro, 849 F.3d 17, 34–35 (2d Cir. 2017); Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018).
15

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.355 Page 26 of 36
inmates to a serious, communicable disease” is precisely the type of serious harm that the Constitution protects against. Helling v. McKinney, 509 U.S. 25, 33 (1993).
COVID-19 is exactly that. It is a disease with no vaccine, effective treatment, or cure. It can cause severe pain in even mild and moderate cases, can feel like “having glass in your lungs” or “drowning in your own blood,” and leaves patients choking and struggling to breathe. Compl. ¶ 25. And it can cause permanent lung damage. Compl. ¶ 24. In critical cases, patients may need to spend weeks attached to a ventilator and blood oxygenation machine. Compl. ¶ 26. Finally, COVID-19 has a fatality rate ten times higher than influenza. Compl. ¶ 27.
The risk of contracting COVID-19 in the Jail is extreme and unreasonable. Lauring Decl. ¶ 27. Across the country, governments have issued “shelter in place” orders closing public schools and non-essential businesses, banning people from eating in restaurants or even congregating in small groups, and requiring individuals to stay in their homes unless it is absolutely necessary to leave. Even when they leave, people are advised to stay at least six feet from others, wear masks, avoid touching their faces, and wash their hands immediately upon returning home. The message is clear and unprecedented: the risk of contracting COVID-19 is objectively unacceptable. So too for Plaintiffs who are detained, where the risk of contracting the virus is even greater than in the general population. Lauring Decl. ¶¶ 28-30.
16

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.356 Page 27 of 36
This risk is even more extreme and unreasonable for the medically vulnerable subclass. They all have conditions rendering them exceptionally vulnerable to death or serious harm if exposed to COVID-19. Because of their medical vulnerability, there is no practicable way to ensure that they can avoid infection and no practicable way to ensure that, if infected, they receive prompt and reasonable medical treatment within the Jail. Serious illness is substantially likely, and older people and those with underlying medical conditions, such as lung disease, heart disease, or diabetes, are more likely to develop serious illness. Lauring Decl. ¶ 22. Therefore, their continued detention is a grave risk to their lives and violates the Constitution.
2. Subjective Indifference This Court need not consider the subjective prong of the deliberate indifference standard with respect to members of the Pre-Trial Subclass. Yet even under the Eighth Amendment’s more exacting standard, immediate injunctive relief is clearly appropriate. That is because Defendants have certainly known of and disregarded an excessive risk to inmate health or safety. Richmond, 885 F.3d at 939. Here, in the midst of this global pandemic, it cannot be seriously disputed that any government officials, including Defendants, are subjectively aware of the risks posed by the coronavirus. Through government orders,7 CDC guidance aimed at
7 Michigan Executive Order 2020-42, Whitehouse.gov (Apr. 9, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90640-525173--,00.html.
17

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.357 Page 28 of 36
jails, see Compl. Ex. 6, letters sent to Defendants,8 and nationwide publications,9 Defendants have been made well aware of the risks to incarcerated people. The County’s and Jail’s own communications and announcements emphasize this awareness.10 Similarly, the widespread public discussion and CDC guidance regarding the heightened risk to medically vulnerable people leaves no question that Defendants are aware of the mortal peril that Jail conditions pose to such individuals.
Defendants are disregarding the grave risk posed by the coronoavirus by failing to implement the steps urged by health experts, including the CDC, to stop the spread of the virus. An official demonstrates disregard of a risk by “failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847. Here, the list of reasonable measures to prevent the spread of COVID-19 is well delineated and publicized: “[s]ocial distancing and proper hygiene are the only effective means by which we can stop the spread of COVID-19.” Thakker v. Doll, __ F. Supp. 3d __,
8 Compl. Exs 12, 13, ACLU Letters to Chief Judges and Sheriffs. 9 David Mills & Emily Galvin-Almanza, As many as 100,000 incarcerated people in our prisons will die from the coronavirus, unless the US acts now, Bus. Insider (Apr. 2, 2020), https://www.businessinsider.com/failure-to-release-prisoners-iscondemning-thousands-to-death-2020-4; Anna Flagg & Joseph Neff, Why Jails Are So Important in the Fight Against Coronavirus, N.Y. Times (Mar. 31, 2020), https://nyti.ms/3aIBHjv; Timothy Williams et al., ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars, N.Y. Times (Mar. 30, 2020), https://nyti.ms/2Jmnf4z. 10 Oakland County Jail, Visitation, https://www.oakgov.com/sheriff/CorrectionsCourts/jail/Pages/visitation.aspx (last visited Apr. 15, 2020).
18

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.358 Page 29 of 36
No. 20-cv-480, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020). The CDC has also recommended similar measures within jails and prisons, calling social distancing of at least six feet at all times the “cornerstone of reducing transmission” of COVID19 within detention facilities, pushing facilities to “[p]rovide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing,” and advising that facilities must, “[s]everal times a day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas.” Compl. ¶ 36.
Despite these clear directives, Defendants have not provided Plaintiffs with the space, antibacterial soap, sanitizer, and cleaning supplies necessary to allow staff and inmates to remain safe. Nor have they provided timely and adequate medical care to identify, isolate, and treat people who develop symptoms. As a result, the entire class has a substantial risk of contracting COVID-19, and the medically vulnerable subclass faces a very realistic threat of death and/or permanent organ damage. Defendants’ failure to act puts them out of step with many other jails and prisons around the country, who are implementing medical guidance.
Although courts give some latitude to jail and prison officials to decide what actions are “reasonable” to deal with safety within facilities, COVID-19 is a threat to inmates’ health and safety of a magnitude unseen in recent history. At this moment, there is only one way to minimize the risk of COVID-19: prevent its spread. By failing to take the necessary steps to do so in the Jail, Defendants are knowingly
19

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.359 Page 30 of 36
exposing Plaintiffs, guards and staff, and the public at large, to a risk of a painful and lethal disease. That risk is unacceptable and unconstitutional.
Officials’ indifference to the significant risk of permanent damage and death to the medically vulnerable subclass is even more culpable. It is well-documented that these individuals face a risk of death or permanent organ damage far in excess of the rest of the population. Stern Decl. ¶ 11; Lauring Decl. ¶ 14. This risk is wellevident in the COVID-19 death toll to date—for instance, in New York state, just over 86% of reported COVID-19 deaths involved at least one comorbidity, according to the state’s department of health.11 Defendants’ refusal or inability to provide circumstances that would limit the subclass’s exposure to the virus constitutes deliberate indifference. At this point, only release will sufficiently protect the medically vulnerable from risk of death. Malam v. Adducci, __ F. Supp. 3d __, No. 20-cv-10829, 2020 WL 1672662 (E.D. Mich. Apr. 6, 2020).
Plaintiffs have shown that they are likely to succeed on their claims’ merits. B. Plaintiffs Will Suffer Irreparable Harm. Plaintiffs allege injuries that are irreparable and, therefore, are not suitable for resolution in the ordinary course of litigation. Nor can these injuries be redressed through money damages. There is no injury that is more irreparable than death, and
11 COVID-19 tracker New York State Department of Health, https://covid19tracker.health.ny.gov/ (last visited Apr. 15, 2020).
20

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.360 Page 31 of 36
Plaintiffs face a heightened risk of contracting a deadly virus. This risk is not speculative: in one Louisiana prison where COVID-19 has been allowed to spread, five people have died in less than a week.12
Moreover, Plaintiffs seek relief from violations of their constitutional rights. “[W]hen reviewing a motion for a preliminary injunction, if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated.” ACLU of Ky. v. McCreary Cty., Ky., 354 F.3d 438, 445 (6th Cir. 2003) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). An injunction is appropriate to prevent a substantial risk of deprivation of constitutional rights, as well as death or permanent, debilitating injury. Being compelled to endure a substantially increased risk of serious illness and death will always constitute irreparable injury. See, e.g., Helling v. McKinney, 509 U.S. 25, 33 (1993) (“It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.”).
The risk of permanent harm to Plaintiffs applies with greater force to the medically vulnerable subclass, for whom continued detention is even more likely to cause injury and death. See Wilson v. Gordon, 822 F.3d 934, 958 (6th Cir. 2016) (upholding preliminary injunction “where the alleged irreparable harm involves
12 ACLU Sues Louisiana Prison After 5 COVID-19 Deaths Reported, Democracy Now (Apr. 7, 2020) https://www.democracynow.org/2020/4/7/headlines/ aclu_sues_louisiana_prison_after_5_covid_19_deaths_reported.
21

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.361 Page 32 of 36
delay in or inability to obtain medical services”). With 23 confirmed COVID-19 cases in the Jail, the risk of death and devastation to subclass members is an absolute certainty that cannot be ignored.
Courts across the country have recognized that risk of exposure to the coronavirus constitutes an irreparable harm and in turn granted immediate release to people who are exposed to coronavirus.13 This groundswell reflects the emerging judicial consensus that people cannot be safely detained when they are exposed to a serious risk of contracting COVID-19. Here, COVID-19 is already in the Jail. Every possible step must be taken to ameliorate the risk to those who remain detained. Plaintiffs have shown irreparable harm.
C. The Public Interest and Balance of Equities Weigh Heavily in Plaintiffs’ Favor.
The substantial risk to Plaintiffs of contracting a deadly disease considerably outweighs any potential harm to Defendants. As discussed above, Plaintiffs will
13 See Ex. H (providing decisions from seven district courts); see also Zhang v. Barr, 20 Civ. 331, 2020 WL 1502607 (C.D. Cal. Mar. 27, 2020) (granting an immediate bond hearing in light of the “global pandemic by which delay in determining Petitioner’s release exposes him to unnecessary risk”); United States v. Garlock, No. 18 Cr. 00418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (ordering, sua sponte, extension of convicted defendant’s surrender date and noting “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided”); Castillo v. Barr, __ F. Supp. 3d __, 20 Civ. 605, 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020) (noting “the risk of infection in immigration detention facilities – and jails – is particularly high”).
22

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.362 Page 33 of 36
suffer significant harm if forced to endure the conditions currently prevailing in the Jail. The only potential harm Defendants face if ordered to bring their Jail into compliance with CDC guidelines is economic: Jail staff may have to expend additional time, and the County may have to expend additional money, to provide the information, hygiene products, cleaning agents, and medical treatment necessary to kill the virus. But the possibility that Defendants will have to spend money to reduce the substantial risk that Plaintiffs will be exposed to a deadly disease does not tip the balance in their favor because “it is always in the public interest to prevent the violation of a party's constitutional rights.” G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994). Immediately implementing CDC’s medically advised hygiene, social distancing, screening and testing measures for the whole Class is the only way to make the Jail safer for those who remain and will also promote Defendants’ interests in ensuring the safety of the staff at the Jail, and the community at large. Accordingly, the public interest would be served by issuance of a preliminary injunction requiring Defendants to implement constitutionally adequate measures to prevent the spread of COVID-19 in the Jail.
Additionally, the balance of equities and public interest favor release of the medically vulnerable subclass members who, as a practical matter, cannot be constitutionally held in the Jail. Release of these individuals will save the Jail money and reduce the demands on jail staff, including guards and nurses. And releasing
23

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.363 Page 34 of 36
medically vulnerable individuals is the only way to eliminate the unacceptable risk to their health and the concomitant demand on public health resources that will result when they become infected in jail. The constitution, and the public interest, demands no less. See Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 222 (6th Cir. 2016) (protection of constitutional rights is “always in the public interest”).
A worsened outbreak at the Jail would create a “tinderbox scenario” with dire consequences for detainees and workers at the Jail as well as the Southeast Michigan metropolitan area, which would be drained of limited medical resources, including intensive care unit beds and ventilators. In Michigan, the COVID-19 outbreak has already resulted in unprecedented public health measures and has strained the local health care system. Further, COVID-19 is already devastating Michigan’s carceral system. In one Michigan prison alone, 10% of all incarcerated people have tested positive for COVID-19, and 9 prisoners have already died statewide.14 Releasing vulnerable individuals is the only way to save lives and reduce the burden on the community and health infrastructure and is clearly in the public interest.
CONCLUSION For these reasons, Plaintiffs ask this Court to issue a temporary restraining order and preliminary injunction ordering the relief requested in their motion.
14 See Compl. ¶ 41 (and source cited therein).
24

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.364 Page 35 of 36

Respectfully submitted,

/s/ Krithika Santhanam Krithika Santhanam (DC Bar No. 1632807)* Thomas B. Harvey (MBE #61734MO)* Advancement Project National Office 1220 L Street, N.W., Suite 850 Washington, DC 20005 Tel: (202) 728-9557 Ksanthanam@advancementproject.org Tharvey@advancementproject.org
/s/ Philip Mayor Philip Mayor (P81691) Daniel S. Korobkin (P72842) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6803 pmayor@aclumich.org dkorobkin@aclumich.org

/s/ Cary S. McGehee Cary S. McGehee (P42318) Kevin M. Carlson (P67704) Pitt, McGehee, Palmer, Bonanni & Rivers, PC 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 cmcgehee@pittlawpc.com kcarlson@pittlawpc.com
/s/ Allison L. Kriger________ Allison L. Kriger (P76364) LaRene & Kriger, PLC 645 Griswold, Suite 1717 Detroit, MI 48226 (313) 967-0100 Allison.kriger@gmail.com

/s/ Alexandria Twinem Alexandria Twinem (D.C. Bar No. 1644851)* Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Tel: 202-894-6126 Fax: 202-609-8030 alexandria@civilrightscorps.org

Attorneys for Plaintiffs/Petitioners

*Applications for admission forthcoming

Dated: April 17, 2020

25

Case 2:20-cv-10949-LVP-MJH ECF No. 5 filed 04/17/20 PageID.365 Page 36 of 36
CERTIFICATE OF SERVICE
I hereby certify that on April 17, 2020, I electronically filed the foregoing
document with the Clerk of the Court using the ECF system which will send
notification of such filing to all counsel of record. I further certify that I emailed
the foregoing document to: Oakland County Corporation Counsel Joellen Shortley
at shortleyj@oakgov.com, the Oakland County Clerk at clerk@oakgov.com, and
the Oakland County Sheriff’s Office at ocso@oakgov.com. The foregoing
document will also be served on Defendants by a process server along with the
complaint and summons at the following addresses:
Sheriff Michael Bouchard Oakland County Sheriff’s Office 1200 N. Telegraph Road Pontiac, MI 48341
Joellen Shortley Oakland County Corporation Counsel’s Office 1200 N. Telegraph Road Pontiac, MI 48341
Lisa Brown Oakland County Clerk/Register of Deeds 1200 N. Telegraph Road Pontiac, MI 48341
Curtis D. Childs Oakland County Sheriff’s Office 1200 N. Telegraph Road Pontiac, MI 48341
/s/ Cary S. McGehee Cary S. McGehee (P42318)

Case 2:20-cv-10949-LVP-MJH ECF No. 5-1 filed 04/17/20 PageID.366 Page 1 of 1
INDEX OF EXHIBITS Exhibit A: Cook County Jail Coronavirus Tracker Exhibit B: Declaration of Jamaal Cameron Exhibit C: Declaration of Richard Briggs Exhibit D: Declaration of Raj Lee Exhibit E: Declaration of Michael Cameron Exhibit F: Declaration of David Kucharski Exhibit G: Declaration of Matthew Saunders Exhibit H: Declaration of Jason Arsineau Exhibit I: Declaration of Michael Bates Exhibit J: Federal Court Orders Cited at Footnote 13 of Plaintiffs’ Brief

Case 2:20-cv-10949-LVP-MJH ECF No. 5-2 filed 04/17/20 PageID.367 Page 1 of 2
Exhibit A

Last Updated: Wednesday, April 15, 12:30 p.m.

Case 2:20-cv-10949-LVP-MJH ECF No. 5-2 filed 04/17/20 PageID.368 Page 2 of 2
Cook County Jail population
and COVID-19 tracker

Jail Population 6K

5K

4K

3K

2K

1K

0 Mar 1

Mar 7 Mar 13 Mar 19 Mar 25 Mar 31 Apr 6

Apr 12

Current 400

Total

300

200

100

0 Mar 22 Mar 24 Mar 26 Mar 28 Mar 30 Apr 1 Apr 3 Apr 5 Apr 7 Apr 9 Apr 11 Apr 13

See details

Source: Cook County Sheriff's O ce. Notes: Population data is not updated on the weekend. Population data is typically updated in the mornings and COVID-19 data in the afternoons. Detainees with COVID-19 represents those currently in custody who are infected, not the cumulative total, so it may uctuate due to releases or deaths. Data is only as accurate as that provided by the Sheriff's o ce.

Case 2:20-cv-10949-LVP-MJH ECF No. 5-3 filed 04/17/20 PageID.369 Page 1 of 7
Exhibit B

Case 2:20-cv-10949-LVP-MJH ECF No. 5-3 filed 04/17/20 PageID.370 Page 2 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,
Defendants.

Case No.

DECLARATION OF JAMAAL CAMERON
I, Jamaal Cameron, declare:
I make this declaration based upon my own personal knowledge, and if called to testify, I could and would do so competently.
1. I am currently serving a sentence in Oakland County Jail (“the Jail”). I have been here since March 11, 2020. My release date is August 28, 2020.
2. I suffer from bronchitis and have for much of my life. I have also been diagnosed with hypertension since coming to the Jail. I also have sleep apnea, which was diagnosed shortly before I came to the Jail. Because of my sleep apnea, I sometimes do not breathe at night for a period of 15-30 seconds. I am supposed to have a c-pac machine to sleep with to alleviate the apnea, but before the COVID-19 crisis started, I was told by a nurse that the jail does not have a machine and I would not be given one. Because of my medical conditions, I am terrified that if I am exposed to coronavirus I might die as a result. No one deserves that.

Case 2:20-cv-10949-LVP-MJH ECF No. 5-3 filed 04/17/20 PageID.371 Page 3 of 7
3. Until yesterday, I was a food trustee and was housed in the annex building. The annex is one of two jail buildings and is divided into an eastern and western portion. I was housed in the western portion. The other building is the main building. Everyone in the jail knows that there has been a coronavirus outbreak in the main building, and someone in the eastern section of the annex was recently moved to the main building as well based on suspicion of exposure.
4. As a food trustee, my job was to finalize the preparation of food and pass it out to people in the annex. Most of the food is pre-prepared in the main kitchen, which is located in the main building. Everyone knows that a kitchen trustee in the main building was diagnosed with the coronavirus. In addition, a cousin of mine worked for Aramark, the outside contractor that provides food services in the main building kitchen. She was diagnosed with coronavirus less than two weeks ago, and is now hospitalized and fighting for her life. The food that I had to work with was carried over from the main building by Aramark employees in plastic carts and containers. Sometimes the Aramark employees had on gloves, sometimes they did not.
5. Yesterday, we just received news that we would have to do more of the food preparation work in the annex because of the outbreak in the main building. However, the food still comes from the main building’s kitchen and some of the processing (like slicing of meat) occurs there in the infected kitchen space. I was worried both because infected supplies from the main building pose a fatal risk to me and other trustees, and because if any of us are infected, we will be passing it on to everyone else through the food preparation process.
6. Because I was worried for my safety, I asked to be transferred to an alternate trustee duty, such as cleaning bathrooms or something like that. My request was denied.
7. As a trustee, I was given a single flimsy pair of plastic gloves to wear when I did my work. I was not given a mask. No one detained in the annex has a mask. Accordingly, I passed out food every day to the other people detained in the annex without proper protective equipment.
8. As a medically vulnerable food trustee, I feared for my life from having to handle food that is brought over from the main kitchen and handled there first. When I raised concerns about continuing to do this work in light of the risks to me with Mr. Ketterwell, the supervisor in charge of food distribution, he

Case 2:20-cv-10949-LVP-MJH ECF No. 5-3 filed 04/17/20 PageID.372 Page 4 of 7
told me there was no coronavirus in the main kitchen and I had nothing to worry about. When I told him I knew that wasn’t true, he threatened to send me to the main building—where, again, there is known to be an outbreak—if I kept asking questions or requesting protection.
9. This morning, I told the jailors that I was not willing to do the food preparation because I was afraid of getting sick. I was punished by being moved to the main jail building and put into the worst cell, which people call “the Tank.” The tank has no beds. There are ten of us in the cell, and we have to sleep on a concrete floor with a thin blanket that is not enough to keep anyone warm. We are all extremely close to each other and are essentially forced to cuddle. We are in Cell R4. The cell immediately next to ours is Cell R5, and that is where people with coronavirus are being held. I could reach out my hand from my cell and reach into cell R5. Everyone in my cell shares one toilet and one sink. There is a bar of soap at the sink, but no way to wash the toilet or sink. When I have to sit on the toilet, I will be sitting on the same dirty, steel toilet as everyone else. When I was placed in this cell, I was not given a mask. We’ve asked for masks, but haven’t received any yet. While I was on the phone with my attorney, a cell mate of mine asked for a grievance form because of the unhygienic conditions here. The guard refused to give him a form and walked away.
10.It is common for the guards in the annex to threaten us with being moved to the main building where the coronavirus outbreak is located. This is particularly common when people ask for facts about the coronavirus. One person who I saw ask a guard for a mask for his own protection was told by a guard that he was being a smart ass and was told to go sit on a shared bench. There are no signs anywhere in the annex providing us with information about coronavirus and we are not able to ask the guards for information because they threaten us when we do.
11.Even the guards in the annex frequently do not have masks and gloves. A few do, but most do not. Mostly, they only use gloves when checking our temperatures. Once a week, the guards conduct “changeout,” meaning that our sheets and things are replaced. During changeout, guards search our room. They are not wearing gloves and masks during changeout.
12.I lived in a room called a “quarter,” which is basically a barracks-style room. It has 32 beds, approximately 25 of which were occupied. There are four quarters, two on each of two floors, in the western section of the annex. In

Case 2:20-cv-10949-LVP-MJH ECF No. 5-3 filed 04/17/20 PageID.373 Page 5 of 7
my quarter, I had a bunkmate, whose bunk was approximately 3 feet below mine; basically the same as a normal kids’ bunk bed. The bunk across from mine was much less than six feet away as well. I could reach out and easily touch the person across from me if they reach out as well. It is impossible to maintain six feet of separation when lying in my bunk and even more impossible during the day when people are up and moving around.
13.Our quarter was not cleaned or disinfected in any way, except a weekly vacuuming. Everyone was responsible for their own bunk area. I tried to keep my area clean, but several guys in my quarter left food lying around or are otherwise dirty. The only disinfectant available in our section of the jail is called DMQ and there are a couple of bottles in the bathroom. We are not allowed to have any in our quarter. So we have no way to clean our bunks, the shared door to our quarter, and other commonly touched surfaces in the quarter. Even the DMQ in the bathroom is highly diluted. I can tell because before the coronavirus hit, the DMQ was a deep yellow color. Now the bottles are nearly clear. A guard told us that DMQ will not kill the coronavirus anyhow. We do not have access to bleach or Clorox to clean any shared spaces or in the bathroom.
14.We request medical attention by completing “kites,” which are distributed by the nurses themselves every morning.
15.However, since last week, the nurses stopped making daily rounds to distribute kites in the annex. We then had no way to request medical attention. Luckily, none of the other guys in my quarter had showed symptoms of COVID-19 yet, but if they had, I do not know how we could have gotten treatment. The only way any of us were checked medically is that they took our temperature a few times a day. Before they stopped coming by, a nurse told me that the doctor will not return to the Jail until May.
16.When the nurses stopped coming, a meeting was held in the day room for everyone in our four quarters who regularly receives medication. The nurses provided a 30-day supply of medication to each person and told them to keep track of it themselves. I was keeping my medicine in my locker and hoping it didn’t get stolen. I will have no way to replace it if it does. At this meeting, there were approximately 40 people, all of whom had medical conditions that forced us to rely on medication, packed into the day room. If I had put my arms out and spun in a circle, I probably would have hit 4 or 5 other guys.

Case 2:20-cv-10949-LVP-MJH ECF No. 5-3 filed 04/17/20 PageID.374 Page 6 of 7
17.In the western portion of the annex, each floor (so, two quarters) shares a single bathroom. The bathrooms are nasty. Whenever I enter the shower it is filled with clumps of hair, dirt, and dead insects. I try to push this disgusting mess around with a squeegee, but it is impossible to really clean, and the only cleaning fluid available anyway is the diluted DMQ I described above. There are six showerheads, but only two work, and they are right next to each other. There is no privacy between showers and the two that work are closer than 6 feet.
18.There are six toilets in the bathroom. Sometimes there is only one roll of toilet paper for all six toilets, meaning that it has to be passed from toilet to toilet. The only way to clean the toilet is to wipe with DMQ, and there is nothing to use to wipe other than the limited toilet paper.
19.I am lucky when it comes to soap because I had pre-purchased a supply that may last me through the month from the commissary before it closed last week. But now the commissary is now closed. For people who did not prepurchase soap, the only access they have to soap are shared bars of non-antibacterial motel-style soap that are provided in the bathroom. Most of the other guys in my quarter did not have their own supply of soap.
20.After washing your hands in the bathroom, there are no paper towels or other way to dry your hand. Many people shake their hands to dry them, spreading water and germs all over the place.
21.We are not given access to hand sanitizer of any kind.
22.We are not given access to Kleenex.
23.The ventilation in the annex building is awful. I woke up every day with a dry mouth and often with bloody boogers. My bunkmate had a bloody nose every morning. I once saw a guy touch one of the air vents and knock down a solid block of dust that was blocking the vents.
24.Laundry came once a week in the annex. That is when inmates get a uniform change and blankets. However, as a kitchen trustee, I was lucky and got a new uniform every day.
25.Everyone in my quarter was a trustee, so I understand a lot about the trustee system and their duties. The laundry trustees in the annex also do laundry that

Case 2:20-cv-10949-LVP-MJH ECF No. 5-3 filed 04/17/20 PageID.375 Page 7 of 7
comes from the main building, meaning that laundry trustees have had to handle infected dirty linens. Several laundry trustees quit as a result. If a trustee says they want to quit because of the dangers of the job, they are moved to the main building where the coronavirus outbreak is.
26.A guy I know filed a grievance about being forced to work in the kitchen in unsafe conditions. He was told that if he filed a grievance he’d be moved to the tank and his good time credits would be taken away. He filed a grievance anyhow, and was moved to the tank. Now that I, too, have been moved to the tank he is my cellmate.
Under 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.

April 10, 2020

/s/Jamaal Cameron Jamaal Cameron

*consent for signing given telephonically

Due to the COVID-19 crisis, it was not possible to obtain a written signature on the above declaration. I am an attorney admitted to the Eastern District of Michigan. On April 10, 2020, I personally spoke with Jamaal Cameron and read this declaration to him. Mr. Cameron told me that the information in the above declaration is true, and gave me verbal consent to sign on his behalf.

I declare under penalty of perjury, under 28 U.S.C. § 1746, that the foregoing is true and correct.
/s/Philip Mayor Philip Mayor

Case 2:20-cv-10949-LVP-MJH ECF No. 5-4 filed 04/17/20 PageID.376 Page 1 of 6
Exhibit C

Case 2:20-cv-10949-LVP-MJH ECF No. 5-4 filed 04/17/20 PageID.377 Page 2 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,
Defendants.

Case No.

DECLARATION OF RICHARD BRIGGS
I, Richard Briggs, declare:
I make this declaration based upon my own personal knowledge, and if called to testify, I could and would do so competently.
1. I am currently being held in Oakland County Jail (“the Jail”) pretrial on a $35,000 bond. I have been at the Oakland County Jail since around November 9, except for a period of time around March when I was in the Wayne County Jail under a writ. I am still in jail because I cannot afford to pay my bond. I believe that I contracted the COVID-19 virus during my stay in the Wayne County Jail and then brought it to the Oakland County Jail, where I then infected people in my cell. The conditions in both jails are horrible and do nothing to protect people like me.
2. I am being held in the main building at the Jail in cell B4B. My cell can house 10 people. Eight people sleep in bunks that are lined along each wall, and two sleep in “boats” in the middle of the cell between the two rows of bunks. Boats are plastic cots that they put on the floor. There is no more than five feet between one person and the person in the next bunk. My cell is one of three

Case 2:20-cv-10949-LVP-MJH ECF No. 5-4 filed 04/17/20 PageID.378 Page 3 of 6
cells that form a “block.” The three cells in our block are all lined up right next to each other along an aisle. In order to get our meals, we have to leave our cell and walk past the other cells on our block, no more than two or three feet from the people being held in the other cells. Aside from going to get meals or going to video appointments with our attorney or a court, we are not allowed to leave our cell.
3. No one from the jail cleans or disinfects our cell in any way. Our cell has one toilet and one shower. We also have one bucket where we have to wash our clothes, including our dirty underwear. The bucket has not been changed out since I moved into the cell last November.
4. The guards bring around DMQ once a day, which is the only cleaning supply we have for the cell. I can tell that the DMQ has been diluted since the coronavirus hit the jail because it is nearly clear and does not even form suds when you use it to scrub something. We have a brush we can use to clean the sink, and the guards tell us that if we lose it we will not get a new one. We have no way to clean the toilet. The only way I can think of to clean the toilet seat (because we do not want to contaminate the sink brush by using it on the toilet) would be to pour some diluted DMQ on the seat. There is literally no way to use the DMQ to clean surfaces like the door to our cell or our bunks or the phone that we share in our cell. The only way I could imagine doing so is to tear up the one towel we are given for drying after our showers and use it to scrub the surfaces inside the cell, but then we would be penalized for destroying jail property and would not get a new towel.
5. The shower in our cell is filthy. The only way to clean it is to push some DMQ around the floor with a squeegee. The shower curtain is moldy and covered in scum. There is no way to clean it.
6. We are given two or three small motel-size bars of soap per person each week. These bars of soap have to be used both to wash our hands and for showers. It is nowhere near enough to wash our hands frequently. Instead, we have to carefully hoard the soap by only washing our hands a few times a day. We have no way to get more soap, and the commissary has been closed. Many of the guys have strong reactions to this soap because of its high lye content and have to choose between staying clean or suffering serious skin reactions. Previously, guys like this got better soap from the commissary.

Case 2:20-cv-10949-LVP-MJH ECF No. 5-4 filed 04/17/20 PageID.379 Page 4 of 6
7. The guards do not provide us any information about the symptoms of COVID19. We learn everything we know from channel 7 news or from talking to relatives on the outside.
8. Somewhere around March 28th, I began to feel extremely ill. I was suffering from nausea, loss of smell and taste, and had difficulties breathing. I asked a guard to send a nurse and when the nurse came she took my temperature and did not otherwise examine me in any way. Because my temperature was below 100 degrees, she put me back in the cell and told me I was not suffering from COVID-19 and would not be tested. I asked a guard to send the nurse again when my condition got worse. Another nurse came and told me the same thing. When I told the nurse I was suffering from shortness of breath, the response was “If you are short of breath, how can you be here talking to me?” I asked the guard to give me a grievance form to complain about the lack of sufficient medical care, and the guard refused and asked me if I wanted to be sent down to “the Tank.” The Tank is a crowded cell with a concrete floor where they do not even have beds. Because the guard would not give me a grievance form and because I feared being sent to the tank, I did not file a grievance. My condition continued to worsen, and I experienced terrible night chills, diarrhea, and loss of appetite. I never received any treatment other than having my temperature taken.
9. At the time that I got sick, my cell was full with 10 people. Since I got sick, many of the other guys in the cell have also developed a similar illness with similar symptoms. The nurses removed one guy from my cell whose temperature was over 100 degrees. I am finally beginning to feel better, but the rest of my cellmates have had to suffer through their illness without any treatment. To my knowledge, none of us has been given a test for COVID19. Three other guys have been removed from my cell because they finished their sentence or were otherwise ordered out by a court. Even with 6 people in the cell, it is impossible to keep 6 feet from the other guys because of the proximity of the bunks and the small size of the cell, and because we share a toilet and shower. My bunk, in particular, is right next to the toilet.
10.As I mentioned earlier, the only reason we are allowed to leave our cells other than a video attorney visit or court appointment is to get our food three times a day, and this requires us to pass closely by people detained in other nearby cells. Our food is handed to us by trustees. Up until April 9th, the trustees did not even have masks or gloves. Now they do. I can tell by looking at the masks and gloves that they are not new each day.

Case 2:20-cv-10949-LVP-MJH ECF No. 5-4 filed 04/17/20 PageID.380 Page 5 of 6

11.The nurses in our section pass by three times a day. They do not provide us with any treatment other than checking our temperatures. Once they brought thera-flu to the guys in the cell next to ours, but they did not give us any, even though we are only a few feet away from them and have to pass them every day when we collect our food.
12.We are not given access to hand sanitizer of any kind. When we go to get our meals, I can see into the guard station and see that they have hand sanitizer. I assume they don’t give us any because no one thinks inmates deserve the same protections as guards.
13.We are not given access to Kleenex.
14.The ventilation in the annex building is awful. There are three vents in my cell, but none works very well and they are often covered with laundry that people are trying to dry anyhow because our laundry is not changed often enough.
15.Laundry used to be done once a week. However, during the COVID-19 crisis, the guards have sometimes refused to bring us new linens and uniforms on the grounds that there are not enough biobags to put our old ones in. We have had to go well more than two weeks without a change of uniform, linens, or underwear, meaning that we are literally living in our own filth. The only other way to clean our clothes or linens is to scrub them in the shared bucket that we have, which is never replaced and which is also dirty. The only way to clean the bucket is to swirl some diluted DMQ in it.
16.The next hearing in my case does not occur until April 28, and I do not know if my case will go forward at that point either. Many people’s hearings have been delayed because of the coronavirus.
Under 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.

April 12, 2020

/s/ Richard Briggs Richard Briggs

Case 2:20-cv-10949-LVP-MJH ECF No. 5-4 filed 04/17/20 PageID.381 Page 6 of 6
*consent for signing given telephonically
Due to the COVID-19 crisis, it was not possible to obtain a written signature on the above declaration. I am an attorney admitted to the Eastern District of Michigan. On April 12, 2020, I personally spoke with Richard Briggs and read this declaration to him. Mr. Briggs told me that the information in the above declaration is true, and gave me verbal consent to sign on his behalf.
I declare under penalty of perjury, under 28 U.S.C. § 1746, that the foregoing is true and correct.
/s/Philip Mayor Philip Mayor

Case 2:20-cv-10949-LVP-MJH ECF No. 5-5 filed 04/17/20 PageID.382 Page 1 of 6
Exhibit D

Case 2:20-cv-10949-LVP-MJH ECF No. 5-5 filed 04/17/20 PageID.383 Page 2 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,
Defendants.

Case No.

DECLARATION OF RAJ LEE
I, Raj Lee, declare:
I make this declaration based upon my own personal knowledge, and if called to testify, I could and would do so competently.
1) I am also known as Dylon Lee.
2) I am serving a nine-month sentence in Oakland County Jail. I have been here since November 18, 2019.
3) I was originally housed in the Oakland County Jail Annex. I was a trustee, and was on the west side of the annex in the trustee dorm in the tan zone. There were seventeen people in my zone.
4) Earlier this week, the nurses gave all the inmates who take prescription medication their entire supply of medications for the month. The nurses told the inmates that they were not going to return, and so the inmates were solely responsible for taking their medications on their prescribed dosage schedules. As a result, inmates have thirty days of medication in their possession.

Case 2:20-cv-10949-LVP-MJH ECF No. 5-5 filed 04/17/20 PageID.384 Page 3 of 6
5) In the Annex, there was no testing for COVID-19. Guards walked around with thermometers and held them up to our foreheads. I have observed guards not even reading the thermometers after they do this.
6) It was impossible to practice social distancing in the Annex, because the bunks are approximately two to three feet away from each other. Even if we were able to do so, people would not practice social distancing. Other inmates sit around tables playing cards, and food service employees and deputies are inches away from our food.
7) All the people in the Annex use the same shower. The trustees who clean the showers get one pair of yellow gloves that they must continue to reuse.
8) In the Annex, linen exchange comes once a week. That is the only time that I received a new uniform and new blankets.
9) On April 9, 2020, I was informed that the kitchen in the main jail building was no longer fully operational, due to a COVID-19 outbreak. Supervisor Kettlewell, an officer at Oakland County Jail, called me into the hallway and told me that I now had to help prepare food for the entire jail population. He told me that if I did not comply, I would be sent to the main jail building “with more than a spanking.” He further warned that I would not want to go to the main building because of the COVID-19 outbreak there. I believe that he was threatening to deliberately expose me to the virus by moving me to the main jail building.
10) Later that evening, I requested a grievance form from Deputy Carr. Deputy Carr gave me a grievance form, where I described Supervisor Kettlewell’s threat to send me to the main jail building, where there was a COVID-19 outbreak, with more than a spanking. I also wrote that social distancing was not being practiced in the Annex. I placed the grievance in my bunk until I could find someone to give it to.
11) On the morning of April 10, 2020, there was a misunderstanding with another deputy regarding kitchen duty. The deputy placed me on twenty-four hour bunk restriction. This meant that I was not permitted to leave my bunk for twenty-four hours. At that time, I asked the deputy who I could give my grievance to.
12) The deputy walked away for approximately five minutes, returned, and told me to “pack [my] shit.” At the time, I thought I was being sent to the other side of the Annex.
13) After I had packed, I saw Deputy Campbell sitting at the desk in the bubble, and I handed him my grievance.

Case 2:20-cv-10949-LVP-MJH ECF No. 5-5 filed 04/17/20 PageID.385 Page 4 of 6
14) Deputy Campbell looked at my grievance and then told me to sit on the bench. The bench is where inmates sit when they are being sent to the main jail building.
15) As I was walking to the bench, Deputy Campbell handed my grievance to Supervisor Kettlewell and said, “Here, this has your name on it.” Supervisor Kettlewell laughed and walked away for a few minutes.
16) When Supervisor Kettlewell returned, I attempted to explain that I had simply been waiting for a kitchen uniform when the other deputy had accused me of not working. Supervisor Kettlewell would not let me speak, and instead said, “Shut the fuck up. I’m not here to negotiate with you. Take your souvenir and get the fuck out of my jail.”
17) The “souvenir” was a ticket that Supervisor Kettlewell handed me while he was talking. It stated that I refused to make sandwiches to supply the jail and east annex. Because of the ticket, I am no longer a trustee. I was then taken to the main jail building.
18) I am now housed in the main jail building in the tanks, which are only meant to be holding cells. As I approached my new cell, I heard the entire cell request a grievance from the deputy, who refused to give it to them.
19) The cell that I was placed into is approximately twelve feet by fifteen feet. There are ten people in it. There are no bunks, and there is no room to sleep. It is even more impossible to practice social distancing in that cell. We receive our meals in the cell, and everyone eats right next to each other. Everyone sleeps on the concrete floor with two blankets. There are rats and bugs on the floor. We have one and a half rolls of toilet paper for ten people. Only a few people have soap.
20) Two people in my cell are coughing and sniffling badly. Nobody is taking their temperatures. There is still no COVID-19 testing.
21) While the cell is separated from the next cell by glass, the only barrier on the fronts of the cells are bars. So, all the inmates in these cells are breathing the same air. This is particularly disturbing to me because the inmates in the cell next to mine were quarantined due to the COVID-19 outbreak. Yet, I could reach my had out of my cell through the bars and into the next cell.
22) The conditions in the next cell were identical to the ones in my cell. Although the inmates were supposed to be quarantined due to potential COVID-19, they were still sleeping on the floor with two blankets. There are ants and bugs on the floor.

Case 2:20-cv-10949-LVP-MJH ECF No. 5-5 filed 04/17/20 PageID.386 Page 5 of 6
23) On April 11, 2020, the inmates in the cell next to mine were moved. Everyone from my cell was immediately moved into that cell without it having been cleaned at all. I know that the cell was not cleaned before we moved into it because I did not see anyone come to clean it, and there is still hair from the previous inmates in it, the floor is wet, and it is apparent that the toilets have not been cleaned. Given the fact that the prior inmates were presumed to have been exposed to COVID-19, I felt that my life was placed at risk. 24) Today, on April 12, 2020, two more inmates were placed into my cell. They informed me that they were previously upstairs in a cell that was quarantined for presumed COVID-19 and that one of the individuals they were quarantined with died last night. 25) Nothing is being done to limit contact between these individuals and others in my cell. I feel that my life is even more at risk now. 26) I have two small children and I am worried about what will happen if I am exposed to COVID-19. I fear that I may die in here.
*SIGNATURES FOLLOW ON THE NEXT PAGE*
Under 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.

Case 2:20-cv-10949-LVP-MJH ECF No. 5-5 filed 04/17/20 PageID.387 Page 6 of 6

April 12, 2020

/s/ Raj Lee Raj Lee

*consent for signing given telephonically

Due to the COVID-19 crisis, it was not possible to obtain a written signature on the above declaration. I am an attorney admitted to the Eastern District of Michigan. On April 12, 2020, I personally spoke with Raj Lee and read this declaration to him. Raj Lee told me that the information in the above declaration is true, and gave me verbal consent to sign on his behalf.

I declare under penalty of perjury, under 28 U.S.C. § 1746, that the foregoing is true and correct.

/s/ Syeda F. Davidson Syeda F. Davidson

Case 2:20-cv-10949-LVP-MJH ECF No. 5-6 filed 04/17/20 PageID.388 Page 1 of 5
Exhibit E

Case 2:20-cv-10949-LVP-MJH ECF No. 5-6 filed 04/17/20 PageID.389 Page 2 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,
Defendants.

Case No.

DECLARATION OF MICHAEL CAMERON
I, Michael Cameron, declare:
I make this declaration based upon my own personal knowledge, and if called to testify, I could and would do so competently.
1) I am 42 years old. I am currently serving my sentence at the Oakland County Jail (“the Jail”). I have been at the Jail since January 23, 2020. I am housed in the Annex.
2) I suffer from hypertension, cardiac disease, and obesity. I had a mild heart attack in 2015, and I still experience chest pains from time to time. I am terrified that if I catch the Coronavirus, I will not be able to fight it off. I worry about dying in the hospital with no family around me. I worry about who will protect my son.
3) There are currently no doctors available to us inside the Jail. The nurses are no longer coming by to do rounds. They made their last round on April 7, 2020 to pass out a 30 day supply of medication to inmates. It is dangerous for many inmates to have 30 days worth of medication in their possession.

Case 2:20-cv-10949-LVP-MJH ECF No. 5-6 filed 04/17/20 PageID.390 Page 3 of 5
4) There are no signs posted about the Coronavirus or how to protect ourselves from getting it, anywhere in the Annex. They haven’t made any announcements. The deputies have only told us to wash our hands. But we do not have access to liquid soap or hand sanitizer. Since commissary is closed, we are unable to purchase soap, paper towels, or personal hygiene products. Those who don’t have their own soap have to share the non-anti-bacterial small bar soaps that are provided in the bathroom. They want us to wash our hands but everyone is sharing the same bar of soap.
5) My girlfriend told me that she saw on the news that there are 22 confirmed cases of COVID-19 in the main jail building. But when we ask the deputies, they won’t give us any information about how many people have been quarantined in the main jail building or how many people are showing symptoms.
6) In my dormitory it is impossible to practice social distancing. Anywhere you go, it’s hard not to be next to another person. There are 60 people in my dorm and our bunk beds are spread out roughly three feet apart. There are four zones in the dorm and 16 bunk beds in each zone. There is an older gentleman in the bunk behind me who has been coughing and sneezing the past few days, and I am scared that he may have the virus.
7) Inmates on the cleaning detail clean the dorms in my section of the Annex. They are only given one pair of yellow rubber gloves that they have to reuse. They are not given any masks to wear when they clean. They use a cleaning solution called DMQ that is heavily diluted with water. It’s the only thing available to wipe down the floors, tables, and bunks but I don’t think it’s strong enough to kill any germs. We don’t have any access to bleach.
8) There are so many things around us that could transmit infection, because they are constantly touched by other people in here, like the phones, the button to get water from the water cooler, and the stair rails. The phones are only wiped down once a night. The stair rails are only cleaned once every other day. I have not seen the water cooler being sanitized between uses.
9) They shut down hot meal service about a week ago. There were rumors that one of the food service workers employed by Aramark, the outside contractor that provides food services in the main building kitchen, tested positive for COVID-19. I heard from an inmate in the Annex who used to be a kitchen trustee in the main jail building that there were originally 22 kitchen trustees working with the food service

Case 2:20-cv-10949-LVP-MJH ECF No. 5-6 filed 04/17/20 PageID.391 Page 4 of 5
workers in the main kitchen but 11 of them were quarantined after the Aramark employee tested positive for COVID-19.
10) The kitchen in the main jail building has been largely shut down. There are no more hot meals being served. We only get peanut butter jelly, bologna, or salami sandwiches. I’m 6’1 and weigh 311 pounds, I am hungry all the time. I wake up hungry and go to sleep hungry.
11) The meat for the sandwiches is still being delivered to the kitchen in the main jail and sliced there even though that area is infected. The meat is then brought over to the Annex where it’s left exposed in the open on non-stainless steel surfaces to be wrapped up in sandwiches.
12) Last night, one of the inmates was taken out of the Annex because he had a high temperature. The deputies gave him a mask and then sent him back to the dorm to take out his stuff. He used to be on the laundry detail and had to handle the laundry from the main jail that was being delivered in biohazard bags. He was worried about handling laundry that he believed was contaminated with COVID-19. When he told the guards that he didn’t want to be on the laundry detail anymore, he got threatened that he would be sent back to the main jail if he refused to work the detail. He’s now back in the main jail under quarantine because of his high fever.
13) I feel that I should be tested for COVID-19 because of my underlying health conditions and especially after last night since the inmate in the Annex who was removed likely has COVID-19. But I have not been provided with testing.
14) I wish I could be released on tether. I have no way of protecting myself from this fatal virus inside the Jail.
15) In order to file a grievance to protest the conditions inside the Oakland County Jail, I must obtain a grievance form from a guard. I am aware that people around me have been retaliated against for turning in a grievance form. I have seen guards retaliate by putting inmates in the hole, placing them on bunk restriction, or taking away inmates’ phone privileges.
Under 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.

Case 2:20-cv-10949-LVP-MJH ECF No. 5-6 filed 04/17/20 PageID.392 Page 5 of 5

*SIGNATURE FOLLOWS ON THE NEXT PAGE*

April 12, 2020

/s/ Michael Cameron Michael Cameron

*consent for signing given telephonically

Due to the COVID-19 crisis, it was not possible to obtain a written signature on the above declaration. I am an attorney admitted to the District of Columbia. On April 11, 2020, I personally spoke with Michael Cameron and read this declaration to him. Michael Cameron told me that the information in the above declaration is true, and gave me verbal consent to sign on his behalf.

I declare under penalty of perjury, under 28 U.S.C. § 1746, that the foregoing is true and correct.

/s/ Krithika Santhanam Krithika Santhanam

Case 2:20-cv-10949-LVP-MJH ECF No. 5-7 filed 04/17/20 PageID.393 Page 1 of 5
Exhibit F

Case 2:20-cv-10949-LVP-MJH ECF No. 5-7 filed 04/17/20 PageID.394 Page 2 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,
Defendants.

Case No.

DECLARATION OF DAVID KUCHARSKI
I, David Kucharski, declare:
I make this declaration based upon my own personal knowledge, and if called to testify, I could and would do so competently.
1) I am currently being held in Oakland County Jail on a 90-day sentence. I have been here since February 11, 2020. My release date would be Friday, April 17, 2020. However, I am also awaiting sentencing on a different charge. My sentencing date was originally scheduled for April 15, 2020, but it has been adjourned to April 29, 2020.
2) I anticipate that my sentencing date will be adjourned again, as I am still waiting for my interview with the probation department. I continue to be held in Oakland County Jail as I await sentencing.
3) I am a laundry trustee and am housed in a trustee dorm, located in the main jail building. The dorm is a ten-person cell. There is no way to practice social distancing in my cell. The bunks in my cell are approximately three feet away from

Case 2:20-cv-10949-LVP-MJH ECF No. 5-7 filed 04/17/20 PageID.395 Page 3 of 5
each other. If an inmate is in his bed, there is no way for him to stay six feet away from another inmate.
4) Inmates request medical attention by completing “kites,” which are distributed by the nurses themselves every morning.
5) On or around March 31, 2020, an individual in my cell requested medical attention because he had symptoms of COVID-19. A nurse did not respond to his request, and in the interim, that individual continued to work as a kitchen trustee. On or around April 1, 2020, an officer in the kitchen noted that the individual looked ill. As a result, a nurse came to our cell on April 3, 2020.
6) As a result of the nurse’s visit on April 3, 2020, the individual who initially requested a nurse was presumed positive for COVID-19 and was removed from the cell. On April 4, 2020, another individual was removed from the cell because he had a high fever.
7) After the two individuals were removed from the cell, I and the other remaining inmates were moved to the cell that we are currently housed in. There are now a total of four trustees in the cell.
8) I suffer from asthma. During the above-referenced time period, I had shortness of breath, fever, chills, and a dry, sore throat. I told the nurse about my symptoms when she came on Saturday, April 4, 2020. She told me to tell her if my symptoms get worse. She then gave each of the remaining trustees a 7-day supply of Tamiflu and instructed us to take it if we had COVID-19 symptoms. That was the last time that any of us saw a nurse.
9) The nurses are not even making rounds to distribute kites so that we can request medical attention.
10) I told a guard that I am continuing to experience shortness of breath and a sore, dry throat. He told me that I have to wait for a nurse. I responded that the nurses had stopped making rounds. The guard told me there was nothing he could do to help me.
11) I feel that I should be tested for COVID-19 because of my exposure, my symptoms, and my asthma. I have not been provided with testing.
12) I have witnessed other inmates being seen by the nurse and then being placed back into the general population.

Case 2:20-cv-10949-LVP-MJH ECF No. 5-7 filed 04/17/20 PageID.396 Page 4 of 5
13) When inmates leave their cells, they are subjected to physical searches upon return. Although the guards wear gloves to conduct the searches, they do not change gloves between inmates.
14) We are not given access to hand sanitizer of any kind.
15) Soap and toilet paper are to be distributed every Sunday. The soap is a singleuse bar that is supposed to last each inmate until the following Sunday. However, the bar never lasts that long, because it is meant for one-time use. On Sunday, April 5, 2020, we were given toilet paper, but no soap. We have not received soap since Sunday, March 29, 2020.
16) Inmates can ordinarily purchase additional soap from the commissary for $1.79. However, the commissary is closed.
17) There is a shower in our cell, but we do not have access to supplies to clean it. We have one spray bottle of an unlabeled pink solution that we are supposed to use to clean the toilet, but we use it to clean everything. We do not know what the solution is.
18) The guards have stopped making as many rounds. They make two rounds in an eight hour shift now.
19) Laundry comes once a week. That is when inmates get a uniform change and blankets.
20) The heat was turned off on or around April 6, 2020. We do not know why.
21) Our meals are sandwiches three times a day. They are brought to us in our cell by other inmates. The other inmates do not have gloves or masks. We know that workers in the kitchen have tested positive for COVID-19.
22) In order to file a grievance for Oakland County Jail’s failure to provide me with medical attention, I must obtain a grievance form from a guard. When I asked a guard for a form, he wanted to know why I was filing a grievance. I told him that it was to protest the jail ignoring my COVID-19 related hygiene and medical needs. He then refused to give me a form to file a grievance.
Under 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.

Case 2:20-cv-10949-LVP-MJH ECF No. 5-7 filed 04/17/20 PageID.397 Page 5 of 5
*SIGNATURE FOLLOWS ON THE NEXT PAGE*

April 10, 2020

/s/ David Kucharski David Kucharski

*consent for signing given telephonically

Due to the COVID-19 crisis, it was not possible to obtain a written signature on the above declaration. I am an attorney admitted to the Eastern District of Michigan. On April 10, 2020, I personally spoke with David Kucharski and read this declaration to him. David Kucharski told me that the information in the above declaration is true, and gave me verbal consent to sign on his behalf.

I declare under penalty of perjury, under 28 U.S.C. § 1746, that the foregoing is true and correct.

/s/ Syeda F. Davidson Syeda F. Davidson

Case 2:20-cv-10949-LVP-MJH ECF No. 5-8 filed 04/17/20 PageID.398 Page 1 of 4
Exhibit G

Case 2:20-cv-10949-LVP-MJH ECF No. 5-8 filed 04/17/20 PageID.399 Page 2 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,
Defendants.

Case No.

DECLARATION OF MATTHEW SAUNDERS
I, Matthew Saunders, declare:
I make this declaration based upon my own personal knowledge, and if called to testify, I could and would do so competently.
1) I am currently being held in Oakland County Jail awaiting trial. My trial was scheduled for March 18, 2020, but it has been adjourned. I do not know when it will be rescheduled. I have been here since October 3, 2019.
2) I am housed in a trustee dorm in the main jail building. It is a cell with two bunks on one side and three on the other. The bunks are twelve inches apart, and the top bunk is three feet away from the bottom bunk.
3) Approximately one month ago, I was sick with suspected COVID-19 symptoms. I had body aches, a high fever, and a very sore throat. I told an officer on the midnight shift that I needed to go the medical unit immediately. The officer took me to the medical unit, where my temperature was found to be 103 degrees.
4) I remained in the medical unit, quarantined for only four days in a single-man cell. Nobody would check on me for eight to twelve hours at a time. When they

Case 2:20-cv-10949-LVP-MJH ECF No. 5-8 filed 04/17/20 PageID.400 Page 3 of 4
brought my food, they placed it at the door. I was too sick to move to get it. Instead of bringing it to me, they simply returned and took it away.
5) After the four days, I was returned to my regular cell. I have no access to my account statement, so I do not know whether I was charged for any medical attention that I received.
6) As a trustee, I am tasked with cleaning in the jail. Trustees are being asked to clean items that have been exposed to COVID-19 without appropriate protection. For example, approximately two weeks ago, an inmate with suspected COVID-19 was transported to the hospital in a van. We were made to clean the van, but we were given inappropriate face coverings to do so, as the masks we received were only cloth.
7) On or around March 31, 2020, an individual in my cell requested medical attention because he had symptoms of COVID-19. A nurse came to our cell for the first time on or around April 3, 2020.
8) As a result of the nurse’s visit on or around April 3, 2020, the individual who initially requested a nurse was presumed positive for COVID-19 and was removed from the cell. On April 4, 2020, another individual was removed from the cell because he had a high fever.
9) After the two individuals were removed from the cell, I and the other remaining inmates were moved to the cell that we are currently housed in. There are now a total of four trustees in the cell. The nurse gave each of us a 7-day supply of Tamiflu and instructed us to take it if we had COVID-19 symptoms. That was the last time that I saw a nurse.
10) Ordinarily, the nurses distribute “kites” for us to complete so that we can request medical attention. However, I have not even seen a nurse to request a kite, in the event that I should need medical attention.
11) We are not provided with hand sanitizer of any kind. There is a shower in our dorm, but the water does not get hot. Further, we are provided with one bar of soap that is not antibacterial. It is approximately half the size of a hotel bar of soap that we get once a week. It is a single-use bar of soap, so it does not last for an entire week. The last time that we were scheduled to receive soap, we did not. The commissary is closed, so I cannot purchase any. I have not had any soap for approximately one week.

Case 2:20-cv-10949-LVP-MJH ECF No. 5-8 filed 04/17/20 PageID.401 Page 4 of 4

Under 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.

April 11, 2020

/s/ Matthew Saunders Matthew Saunders

*consent for signing given telephonically

Due to the COVID-19 crisis, it was not possible to obtain a written signature on the above declaration. I am an attorney admitted to the Eastern District of Michigan. On April 11, 2020, I personally spoke with Matthew Saunders and read this declaration to him. Matthew Saunders told me that the information in the above declaration is true, and gave me verbal consent to sign on his behalf.

I declare under penalty of perjury, under 28 U.S.C. § 1746, that the foregoing is true and correct.

/s/Syeda F. Davidson Syeda F. Davidson

Case 2:20-cv-10949-LVP-MJH ECF No. 5-9 filed 04/17/20 PageID.402 Page 1 of 6
Exhibit H

Case 2:20-cv-10949-LVP-MJH ECF No. 5-9 filed 04/17/20 PageID.403 Page 2 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,
Defendants.

Case No.

DECLARATION OF JASON ARSINEAU
I, Jason Arsineau, declare:
I make this declaration based upon my own personal knowledge, and if called to testify, I could and would do so competently.
1. I am currently being held in Oakland County Jail (“the Jail”) on a short sentence. I have been incarcerated at the Jail since March 16 and am scheduled to be released on April 19. I am a licensed paramedic and am appalled by what I’ve seen in terms of the Jail’s handling of the COVID-19 crisis. We are packed into the Jail like sardines, and the virus has spread like wildfire. I served as a marine for 14 years, so I have lived in some tough conditions. And I have spent short spans of time in other jails too. But what I’ve seen here is by far the worst I’ve ever experienced. I would not wish these conditions on my worst enemies. If people could see the way we are being forced to live, they would understand how cruel this is.
2. I am being held in the main building in a cell that can house ten people, using four bunk beds on each side of the room and two plastic beds called “boats” in the middle. When I came to the cell there were 9 of us, but now there are

Case 2:20-cv-10949-LVP-MJH ECF No. 5-9 filed 04/17/20 PageID.404 Page 3 of 6
only 6, because three people have since been removed when they developed fevers. But even with 6 people, it is impossible to maintain six feet of separation. When I sleep, the nearest person is about 3 feet away, and in the daytime there is also no way to keep social distancing. Maybe 4 people could do it in our cell by each keeping in one corner and never moving, but even then it wouldn’t be possible when people had to use the shower or toilet.
3. We are not allowed to leave our cell for any reason except to collect our food or go for an attorney visit. In order to get our meals, we have to leave our cell and walk past the other cells on our block. When we do that, we are only one or two feet from the person on each side of us in line, and we pass within 2 or 3 feet of the people in the other cells in the block.
4. We do our best to keep our cell clean and have the cleanest cell on the block as a result. But no one cleans for us, and we do not have any way to keep our cell as clean as it needs to be for us to be safe. The only cleaning agent they give us is DMQ. But we have nothing to use to actually clean the surfaces. There is one toilet brush that is shared by all the cells in our section (dozens of cells), and there is nothing we can use to clean the toilet seat, the phone, and other shared surfaces. The best we can try to do is to rub things a little bit with some DMQ and soggy toilet paper. We have a single sponge that is completely disgusting and filled with mold so is no good for cleaning. We’ve asked to have it replaced repeatedly and no one will bring us a new one. As a paramedic, I know this exposes us to all sorts of diseases, especially when it comes to the toilet, which could be a source for transmitting things like hepatitis in addition to coronavirus. Also, our shower curtain is filthy with mold and mildew and there is black mold on the ceiling of our shower.
5. Around the end of March, I became ill with what I believe was the coronavirus. My temperature was not particularly high, but I had all of the other symptoms like swollen lymph nodes, body aches and chills, sneezing, coughing, trouble breathing, and loss of taste and smell. At the time I was working as a kitchen trustee in the main building in order to shave a few days off my sentence. I told the main deputy that I was feeling sick and should not be serving food and asked to be moved to a different trustee duty. He told me he would, but the next day I was back on kitchen duty. When I asked to be moved again, he told me “motherfucker, you do what I tell you to do, and you are going to serve food.” As a result, I had to serve food to other people in the jail while feeling extremely sick for about four days. We had hairnets and gloves at the time, but no masks. I was sneezing and coughing while serving

Case 2:20-cv-10949-LVP-MJH ECF No. 5-9 filed 04/17/20 PageID.405 Page 4 of 6
and the deputies were yelling at me for it, but I couldn’t help it. Finally, after four days, I couldn’t even get up out of bed. The deputy dragged me out of my bunk and down the hall and punished me for not “cooperating” by ultimately removing me from trustee duty.
6. When I was serving as a food trustee, they did take our temperature, but as a paramedic, I know that they were doing it wrong. First of all, they checked our temperature right after we had eaten, and it is a basic rule that you have to wait 30 minutes after someone eats to get an accurate temperature reading. Second, they were using a type of temperature probe that is supposed to work by being held close to the patient but not contacting them. However, possibly because the deputies were scared to get close to us, they would just hand the probe to us and many people would stick it on their body or in their mouth, and then it would be reused on another person without being sanitized, turning the temperature probe into a transmission vector.
7. I am finally feeling better after about two weeks of suffering, but have now developed a case of gout. I believe it is because of the diet in here. Every single day, we get a peanut butter and jelly sandwich for breakfast and a sandwich with disgusting bologna or salami for both lunch and dinner. The only remotely nutritious thing we get is two apples a day. I believe the lowquality processed meat to be responsible for my gout; I never have this problem on the outside when I can eat right. So now I am treating myself by drinking lots of water and avoiding the sandwiches—in other words, I am almost starving myself in order to survive for the next week until I get out. I don’t believe there is any point in trying to get medical help because the nurses here are useless and won’t help even if you can get one’s attention which is not easy.
8. Other people in my cell have also gotten sick with COVID-19-like symptoms, probably because they caught it from me. Just like me, they are not removed from the cell unless they have particularly high temperatures, even though everything else suggests they have COVID-19. The conditions in our cell make it hard to get better. For example, several nights last week the temperatures felt like they were in the 50s all night and we were all shivering all night. Some of my cellmates who had seemed like they were recovering got worse after that, probably because their immune system was further compromised by the cold.

Case 2:20-cv-10949-LVP-MJH ECF No. 5-9 filed 04/17/20 PageID.406 Page 5 of 6
9. The toilet in one of the neighboring cells overflowed just a couple of nights ago. The guys in the cell had to use their own blankets to soak up the water to prevent it from flowing into other cells, including ours. Those guys were given a broom and a mop to clean up the water and some DMQ but no special supplies to clean up and no one came to fix the toilet, even though it has overflowed multiple times.
10.There are mice in our cell block too. The other night, someone in the neighboring cell killed a mouse and put it in the corridor. When the deputies came by in the morning, they saw the mouse, commented on it, and then proceeded to hand out our food right next to it. They did not clean up the mouse or call a trustee to clean it up before serving food.
11.The commissary has been closed for about two weeks now, so we have no way to get hygiene products other than the small bars of soap that are sometimes distributed. I ran out of toothpaste and had to beg guards multiple times to get some more. When they finally brought me some, it was a tiny container big enough for about two days. When it ran out, I had to beg again for more, and I went over three days before anyone brought me more toothpaste.
12.About four days ago they started offering incarcerated people facemasks for the first time. However, the facemasks are breathable masks designed to keep out particulate matter, not medical masks. They will not protect anyone from getting coronavirus, although they do block sneezes and coughs. In any event, two days later they stopped offering us facemasks anymore.
13.We are not given access to hand sanitizer of any kind.
14.We are not given access to Kleenex.
15.We are not given access to Clorox or any other kind of bleach for cleaning.
16.In our cell there is no daylight and we are not allowed outside. It is hard to know what time of day it is, and it is like being locked in a closet. I think this is cruel and unusual, and more like torture. I’ve never seen conditions like this before. Some of us may have done things wrong to get here, but no one should ever be treated like this. I wish people on the outside understood what we are going through in here. I am suffering so much, but am just trying to get through, knowing that I will get out in one more week. As soon as I get

Case 2:20-cv-10949-LVP-MJH ECF No. 5-9 filed 04/17/20 PageID.407 Page 6 of 6

out, I will be going back to my job as a paramedic where my job is waiting for me. I can’t wait get into the fight against the coronavirus along with my colleagues in the healthcare industry and helping others instead of rotting in this terrible place.
Under 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.

April 13, 2020

/s/Jason Arsineau Jason Arsineau

*consent for signing given telephonically

Due to the COVID-19 crisis, it was not possible to obtain a written signature on the above declaration. I am an attorney admitted to the Eastern District of Michigan. On April 13, 2020, I personally spoke with Jason Arsineau and read this declaration to him. Mr. Arsineau told me that the information in the above declaration is true, and gave me verbal consent to sign on his behalf.

I declare under penalty of perjury, under 28 U.S.C. § 1746, that the foregoing is true and correct.
/s/Philip Mayor Philip Mayor

Case 2:20-cv-10949-LVP-MJH ECF No. 5-10 filed 04/17/20 PageID.408 Page 1 of 5
Exhibit I

Case 2:20-cv-10949-LVP-MJH ECF No. 5-10 filed 04/17/20 PageID.409 Page 2 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,
Defendants.

Case No.

DECLARATION OF MICHAEL BATES
I, Michael Bates, declare:
I make this declaration based upon my own personal knowledge, and if called to testify, I could and would do so competently.
1) I am currently incarcerated at the Oakland County Jail (“the Jail”). I have been in Jail since October 30, 2019.
2) When I first arrived at the Jail, I was housed in the Annex. I was moved to the main jail building on March 9, 2020. I was housed in the main jail building from March 9, 2020 until early April when I was moved back to the Annex.
3) In the main jail building, I was housed in cellblock H2, which has 32 cell pods with two inmates per cell. The first two confirmed cases of COVID-19 at the Jail were in the main jail building on my cellblock.
4) The first inmate who contracted COVID-19 was housed one cell down from me. On March 23, 2020, he and I were sitting side by side in the visitation room. The visitation room has two television kiosks with two chairs roughly a foot apart

Case 2:20-cv-10949-LVP-MJH ECF No. 5-10 filed 04/17/20 PageID.410 Page 3 of 5
from one another. Shortly after we left the visitation room, he asked a deputy if he could see a nurse because he had been feeling unwell for a few days. He was taken to the medical ward and did not return. At that time, I had no idea that he had later tested positive for COVID-19.
5) On March 24, 2020, cellbock H2 went on lockdown for 24 hours. At first I thought they may have locked us down because a fight had broken out or some other issue. The next day in the afternoon, the deputies told us lockdown would be extended for 48 hours. The deputies did not explain why we were being placed on lockdown.
6) After the 48 hours, we continued being on lockdown for approximately 10 days. During lockdown, we started seeing some of the guards wear masks, teachers stopped coming in for classes, the Jail shut down personal visits, food trays started being delivered directly to our cells, and commissary got shut down. But no one shared any information with us. We kept asking the guards why we were on lockdown if the virus wasn’t in the Jail. It felt like they were trying to keep us from finding out that there were in fact confirmed cases of COVID-19 in the Jail.
7) The second inmate who contracted COVID-19 was housed in the pod across from my cell. I could see into his cell during lockdown, and it was clear that he was unwell. At first I thought that he was experiencing drug withdrawals. He was wrapped up in his blanket inside his cell and shivering. He looked sluggish and weak. He was eventually taken to the medical ward and did not return. We later found out that he had also tested positive for COVID-19.
8) We started seeing reports about the Coronavirus on channel 7 news, but when we asked the deputies if anyone in the Jail had tested positive for Coronavirus they told us there were no confirmed cases in the Jail.
9) I am very worried about getting the Coronavirus because we were all exposed to both inmates before they were sent to the medical ward. I have no idea how long either of them had been experiencing symptoms. We all share showers, toilets, and sinks in the cellblock. Common surfaces in the cellblock are touched by every inmate. We were eating meals together with these two inmates in the dayroom where tables are set up only a few feet apart from one another, and food is always being passed around and shared among people.

Case 2:20-cv-10949-LVP-MJH ECF No. 5-10 filed 04/17/20 PageID.411 Page 4 of 5
10) There are no warning signs posted about COVID-19 or how we should be protecting ourselves, anywhere I have seen in the Jail. We don’t have cleaning supplies to disinfect our cells. We do not have access to bleach. We are not provided with antibacterial soap or hand sanitizer.
11) I was moved back to the Annex on April 5, 2020. I work as a trustee and am on laundry detail. All of the laundry comes to us from the main jail where there are confirmed cases of COVID-19.
12) Some of the laundry now comes in biohazard bags. We Inmates on the laundry detail are scared to work with these bags, but anyone who refuses to work with these bags is threatened to be sent back to the main jail. They have no warning signs posted about the Coronavirus but they do have signs posted saying that if you deny detail you will be sent back to the main jail where everyone knows there are confirmed cases of Covid-19.
13) In order to file a grievance to protest the conditions inside the Oakland County Jail, I must obtain a grievance form from a guard. I am worried about retaliation if I ask for a grievance form from a guard. I have seen guards retaliate when inmates try to obtain a grievance form, by putting inmates in the hole, placing them on bunk restriction, or taking away inmates phone privileges.
Under 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.
*SIGNATURE FOLLOWS ON THE NEXT PAGE*

April 12, 2020

/s/ Michael Bates Michael Bates

*consent for signing given telephonically

Due to the COVID-19 crisis, it was not possible to obtain a written signature on the above declaration. I am an attorney admitted to the District of Columbia. On April 12, 2020, I personally spoke with Michael Bates and read this declaration to him.

Case 2:20-cv-10949-LVP-MJH ECF No. 5-10 filed 04/17/20 PageID.412 Page 5 of 5
Michael Bates told me that the information in the above declaration is true, and gave me verbal consent to sign on his behalf. I declare under penalty of perjury, under 28 U.S.C. § 1746, that the foregoing is true and correct.
/s/ Krithika Santhanam Krithika Santhanam

Case 2:20-cv-10949-LVP-MJH ECF No. 5-11 filed 04/17/20 PageID.413 Page 1 of 95
Exhibit J

Case 2:20-cv-10949-LVP-MJH ECF No. 5-11 filed 04/17/20 PageID.414 Page 2 of 95
Avendaño Hernandez v. Decker, Slip Copy (2020)

2020 WL 1547459 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Gaspar AVENDAÑO HERNANDEZ, Petitioner, v.
Thomas DECKER et al., Respondents.
20-CV-1589 (JPO) |
Signed April 1, 2020 |
Filed 03/31/2020
Attorneys and Law Firms
Alina Das, Washington Square Legal Services, Inc., New York, NY, Hannah McCrea, Brooklyn Defender Services, Paige Austin, Make the Road New York, Brooklyn, NY, for Petitioner.
Michael James Byars, U.S. Attorney’s Office, New York, NY, for Respondents.
OPINION AND ORDER
J. PAUL OETKEN, District Judge:
*1 In this action, a petition for a writ of habeas corpus under 28 U.S.C. § 2241, Gaspar Avendaño Hernandez seeks relief from his detention by U.S. Immigration and Customs Enforcement. Avendaño Hernandez has filed a letter motion to compel Respondents to release him pursuant to Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001). (Dkt. No. 9.) For the reasons that follow, the motion is granted.

Petitioner Gaspar Avendaño Hernandez is a resident of Brooklyn, New York. (Pet. ¶ 1.) On February 6, 2020, he was arrested by U.S. Immigration and Customs Enforcement, or ICE, and detained at the Hudson County Correction Facility. (Pet. ¶¶ 15, 45.) On February 24, 2020, Petitioner filed a habeas petition asserting four claims — including, most relevantly, a claim that he is being denied adequate medical care. (Dkt. No. 1 ¶ 110–15.) On March 30, 2020, Petitioner filed an amended habeas petition asserting the same claim in the renewed context of the COVID-19 epidemic. (See Pet. ¶¶ 119–26)
Petitioner suffers from several severe medical conditions. During Petitioner’s arrest, ICE officers tased Petitioner between fifteen and twenty times in the legs and back. (Pet. ¶¶ 18–19.) He subsequently received medical treatment at Maimonides Medical Center, at which he was diagnosed with a right bundle branch block, or “an interruption or alteration of the electrical conduction of the heart.” (Pet. ¶ 33.) He was also diagnosed with rhabdomyolysis, “a condition in which breakdown of muscle fiber release[s] protein into the blood,” potentially resulting in “damage to the kidneys, dangerous electrolyte abnormalities, [or] death.” (Pet. ¶ 34.) Petitioner was instructed to obtain “follow-up care with a cardiac specialist,” including “an echocardiogram and electrocardiogram.” (Pet. ¶ 121.) Petitioner has not yet received this follow-up care during his detention at Hudson County Correction Facility. (Pet. ¶ 122.)
On March 22, 2020, the first case of COVID-19 was reported at Hudson County Correction Facility. (Pet. ¶ 90.) Petitioner faces an increased risk of death from COVID-19 due to his underlying medical conditions. (Pet. ¶¶ 94, 97.) Hudson County Correction Facility has implemented some measures to slow the spread of COVID-19 in the facility (Dkt. No. 11 at 4); however, “[s]ocial distancing is impossible.” (Pet. ¶ 92.)
On March 23, 2020, Petitioner filed a motion seeking interim release pending disposition of the habeas petition under Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001). The motion argues that Petitioner is “particularly vulnerable to COVID-19” and that the Hudson County Correction Facility cannot “respond adequately” to the health risks posed by the disease. (Dkt. No. 9 at 1–3.)

I. Background The following facts are taken from the petition for writ of habeas corpus, as amended, and are essentially undisputed for purposes of this motion. (See Dkt. No. 12 (“Pet.”).)

II. Legal Standard “[T]he federal courts have inherent authority to admit to

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

1

Case 2:20-cv-10949-LVP-MJH ECF No. 5-11 filed 04/17/20 PageID.415 Page 3 of 95

Avendaño Hernandez v. Decker, Slip Copy (2020)

bail individuals properly within their jurisdiction.” Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). This power “is a limited one, to be exercised in special cases only.” Id. To obtain relief, “[t]he petitioner must demonstrate that the habeas petition raise[s] substantial claims and that extraordinary circumstances exist[ ] that make the grant of bail necessary to make the habeas remedy effective.” Id. (second alteration in original) (quoting Grune v. Coughlin, 913 F.2d 41, 44 (2d Cir. 1990)).

or extreme pain.” Charles, 925 F.3d at 86 (quoting Hathaway, 99 F.3d at 553). But in the context of the COVID-19 epidemic, these conditions render Petitioner peculiarly at risk of serious injury or death in the event he contracts COVID-19. (Pet. ¶ 97; see also Dkt. No. 12-2 at 16 (enumerating “high-risk” categories for COVID-19).) Notably, Respondents do not appear to dispute that Petitioner’s medical conditions place him in a high-risk category for experiencing serious injury or death from COVID-19. (Dkt. No. 11 at 4.)

III. Discussion *2 To obtain interim release under Mapp v. Reno, Petitioner must demonstrate both that his petition raises “substantial” claims and that “extraordinary circumstances” exist. Each requirement is discussed in turn.

Furthermore, Petitioner’s medical need remains unmet. The record indicates that Respondents have not taken any action to address the particular risks that COVID-19 poses to high-risk individuals like Petitioner. Rather, Respondents cite only generalized “proactive measures to prevent detainees within its care from contracting and spreading the virus,” including

A. Substantial Claims Among other claims, the petition for a writ of habeas corpus asserts a claim of deliberate indifferent to Petitioner’s medical needs while in detention. (Pet. ¶¶ 119–26.) Civil detainees enjoy the right to be free from deliberate indifference to their serious medical needs. See Charles v. Orange County, 925 F.3d 73, 85–86 (2d Cir. 2019). For federal detainees, the relevant guarantee is the Fifth Amendment’s Due Process Clause. See id. That guarantee encompasses the rights of Petitioner, as the Due Process Clause applies to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
Deliberate indifference requires a two-part showing. First, Petitioner must establish that he has a serious, unmet medical need. See Charles, 925 F.3d at 86. Second, Petitioner must establish that Respondents acted with deliberate indifference to that need.
Here, the first requirement is easily established. A serious medical need is one that “may produce death, degeneration, or extreme pain.” Id. (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). Petitioner’s rhabdomyolysis, if left untreated, “can lead to kidney damage and death.” (Pet. ¶ 121.) Relatedly, Petitioner was also diagnosed with an abnormality in his cardiac electrical conduction. (Id.) Standing alone, these conditions already present a risk of “death, degeneration,

modifying the intake process for all

incoming

detainees

and

pre-screening of all newly admitted

detainees prior to admission to the

facility ...; suspending all contact

and non-contact visits at the jail;

dramatically increasing sanitation

frequency in housing units at the

jail; and screening of all employees

and vendors who enter the jail.

(Dkt. No. 11 at 4.) These measures, however, are unresponsive to Petitioner’s specific medical need — the risk posed by COVID-19 to high-risk individuals in particular. See, e.g., Coronel v. Decker, No. 20-CV-2472, 2020 WL 1487274, at *5 (S.D.N.Y. Mar. 27, 2020) (“[The government] has not isolated these high-risk individuals. It has not created special safety or hygiene protocols for them or for staff interacting with them to follow.... And of course, it has not released [Petitioner], even though doing so is within the agency’s sound discretion.”). Thus, Petitioner has met the first requirement to state a claim for deliberate indifference.
*3 The second requirement is also met. To establish that Respondents acted with deliberate indifference, Petitioner “can allege either that [they] knew” or that they “should have known” that failing to provide the complained of medical treatment would pose a substantial risk to his health.” Charles, 925 F.3d at 87. As an initial matter, Petitioner has established that Respondents had actual knowledge of his serious, unmet medical condition. On

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

2

Case 2:20-cv-10949-LVP-MJH ECF No. 5-11 filed 04/17/20 PageID.416 Page 4 of 95

Avendaño Hernandez v. Decker, Slip Copy (2020)

March 24, 2020, Petitioner submitted a letter to ICE detailing his medical needs and asserting, in particular, his heightened risk for serious harm or death from COVID-19 due to his underlying heart conditions. (Dkt. No. 12-2 at 59.) Respondents are therefore aware of Petitioner’s medical condition and the particularized risk posed to them by COVID-19.
Despite this knowledge, Respondents “can point to no specific action that [they have taken] in direct response to this serious, unmet medical need.” Coronel, 2020 WL 1487274, at *5. Respondents cite “proactive measures” like modification of the intake process and increasing sanitation frequency. (Dkt. No. 11 at 4.) But even if such measures sufficed to meet the medical needs of ordinary detainees, those measures “do nothing to alleviate the specific, serious, and unmet medical needs of ... high-risk [detainees].” Coronel, 2020 WL 1487274, at *5; see Johnson v. Wright, 412 F.3d 398, 404 (2d Cir. 2005) (holding that even if a policy were “generally justifiable ... the application of the policy in [a particular] case could ... amount[ ] to deliberate indifference”). Nor is it clear that these measures are “generally justifiable.” As courts in this Circuit have concluded, such measures are “patently insufficient” to protect any detainees from infection absent “enforcement of requisite social distancing.” Basank v. Decker, No. 20-CV-2518, 2020 WL 1481503, at *5 (S.D.N.Y. Mar. 26, 2020); see also Coronel, 2020 WL 1487274, at *5 (noting that “[n]one of these steps are adequate to mitigate the transmission of the virus when there’s already documented community-based transmission, and spread of coronavirus from staff, vendors, or contractors” (alteration in original)).
In short, Respondents had actual knowledge of Petitioner’s serious, unmet medical need and did nothing in response. The Court concludes that such facts state a substantial claim for deliberate indifference. See Coronel, 2020 WL 1487274, at *6 (concluding petitioners were likely to succeed on deliberate-indifference claim because the government failed to “introduce[ ] any evidence of actions it took in response to the particular risk COVID-19 poses to high-risk individuals like the Petitioners”); Basank, 2020 WL 1481503, at *5 (concluding petitioners were likely to succeed on deliberate-indifference-claim because the government “could [not] provide the Court with any information about steps taken to protect high-risk detainees like
End of Document

Petitioners”).
B. Extraordinary Circumstances Release under Mapp is appropriate only if “extraordinary circumstances ... make [immediately release] necessary to make the habeas remedy effective.” Mapp, 241 F.3d at 230 (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981)). “Severe health issues” are “the prototypical ... case of extraordinary circumstances that justify release pending adjudication of habeas.” Coronel, 2020 WL 1487274, at *9. Such is the case here. Petitioner argues that he is being subject to unconstitutional conditions of confinement — specifically, continued risk of exposure to COVID-19 — and he seeks release so that he can avoid infection. “If Petitioner[ ] were to remain detained, [he] would face a significant risk that [he] would contract COVID-19 — the very outcome [he] seek[s] to avoid.” Id. Accordingly, immediate release is necessary to “make the habeas remedy effective.” Mapp, 241 F.3d at 230 (quoting Iuteri, 662 F.2d at 161).
IV. Conclusion *4 For the foregoing reasons, Petitioner’s motion to compel immediate release pending resolution of his habeas petition is GRANTED. The Court hereby orders Respondents to immediately release Petitioner on reasonable conditions. The parties are ordered to meet and confer and to propose reasonable bond conditions no later than April 1, 2020, at 1:00 p.m.
The Clerk of Court is directed to close the motion at Docket Number 9.
SO ORDERED.
All Citations
Slip Copy, 2020 WL 1547459
© 2020 Thomson Reuters. No claim to original U.S. Government Works.

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

3

Case 2:20-Ccva-s1e0914:290--LcVvP-0-2M5J1H8-AETCFDNoocu. m5-e1n1t 1f1iledF0ile4d/1073/2/206/2P0agPeaIDg.e417of 1P5age 5 of 95

Case 2:20-Ccva-s1e0914:290--LcVvP-0-2M5J1H8-AETCFDNoocu. m5-e1n1t 1f1iledF0ile4d/1073/2/206/2P0agPeaIDg.e4128of 1P5age 6 of 95
as Director of the New York Field Office of ICE, and Chad Wolf, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security, from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings. TRO at 1, ECF No. 6.
For the reasons stated below, the TRO is GRANTED, and (1) Respondents, and the Hudson, Bergen, and Essex County Correctional Facilities, are ORDERED to immediately release Petitioners today on their own recognizance, and (2) Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings.
BACKGROUND Petitioners were detained by ICE in connection with removal proceedings pending at the Varick Street Immigration Court. They are housed in New Jersey county jails where either detainees or staff have tested positive for COVID-19. TRO at 3–4. Specifically, Basank, Benitez Pineda, and Mazariegos are detained at the Hudson County Correctional Facility (“Hudson County Jail”). Petition ¶¶ 5, 7, 11. Barrera Carrerro, Hernandez Balbuena, Legall, Martinez, and Menendez are detained at the Bergen County Correctional Facility (“Bergen County Jail”). Id. ¶¶ 6, 8, 9, 10, 12. Pena and Picazo Nicolas are detained at the Essex County Correctional Facility (“Essex County Jail”). Id. ¶¶ 13–14.1 Each Petitioner suffers from chronic medical conditions, and faces an imminent risk of death or serious injury in immigration detention if exposed to COVID-19. Basank is 54 years old and has a lengthy history of smoking. Id. ¶ 5. Barrera Carrerro, age 39, has underlying
1 During oral argument, Respondents represented to the Court that five Petitioners—Hernandez Balbuena, Legall, Menendez, Basank, and Benitez Pineda—are expected to be released today. However, because Petitioners are not yet released, and because counsel for Petitioners indicated, and Respondents did not dispute, that ICE may take as long as a day to complete the release process, the Court enters the TRO as to all Petitioners directing their immediate release today without fail.
2

Case 2:20-Ccva-s1e0914:290--LcVvP-0-2M5J1H8-AETCFDNoocu. m5-e1n1t 1f1iledF0ile4d/1073/2/206/2P0agPeaIDg.e4139of 1P5age 7 of 95
health conditions, including obesity, respiratory problems, a history of gastrointestinal problems, and colorectal bleeding. Id. ¶ 6. Benitez Pineda is 44, with pulmonary issues and a history of hospitalization for severe pneumonia. Id. ¶ 7. Hernandez Balbuena suffers from diabetes and diabetes-related complications. Id. ¶ 8. Legall is 33 years old, and suffers from respiratory problems, including asthma. Id. ¶ 9. Martinez, age 56, suffers from severe heart disease, and has a history of hospitalization for congestive heart failure, severe aortic valvular insufficiency, and acute systolic failure, requiring immediate heart valve replacement surgery. Id. ¶ 10. Mazariegos is 44, and suffers from high blood pressure and pre-diabetes. Id. ¶ 11. Menendez is 31 years old and suffers from chronic asthma. Id. ¶ 12. At 36, Pena is asthmatic and has chronic obstructive pulmonary disease (“COPD”), which require inhalers and other medical treatment. Id. ¶ 13. Picazo Nicolas, age 40, suffers from Type II diabetes and morbid obesity. Id. ¶ 14.
On March 16, 2020, Hannah McCrea, an attorney with Brooklyn Defender Services, emailed Assistant United States Attorney Michael Byars, requesting that ICE release particularly vulnerable individuals, including Basank, Legall, Martinez, and Picazo Nicolas. Harper Decl. ¶ 2, ECF No. 6-1. On March 18, 2020, AUSA Byars responded that he did “not have a timeframe for ICE’s response.” Id. ¶ 3. On March 24, 2020, Alexandra Lampert, also a lawyer with Brooklyn Defender Services, emailed Byars to request the release of additional individuals identified as particularly vulnerable, including Barrera Carrerro, Benitez Pineda, Hernandez Balbuena, Mazariegos, Menendez, and Pena. Id. ¶ 4. On March 25, 2020, Lampert again emailed Byars and informed him of Petitioners’ intent to seek a temporary restraining order in the Southern District of New York, with the amended petition attached, thus putting Respondents on notice of Petitioners’ serious medical conditions and their request for injunctive relief. Id. ¶¶ 5, 7.
3

Case 2:20-Ccva-s1e0914:290--LcVvP-0-2M5J1H8-AETCFDNoocu. m5-e1n1t 1f1iledF0ile4d/1073/2/206/2P0agPeaIDg.e4240of 1P5age 8 of 95
At 12:30 p.m. today, the Court held a telephonic hearing on Petitioners’ request for a TRO.
DISCUSSION I. Legal Standard
“A plaintiff seeking a temporary restraining order must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Natera, Inc. v. Bio-Reference Labs., Inc., No. 16 Civ. 9514, 2016 WL 7192106, at *2 (S.D.N.Y. Dec. 10, 2016) (internal quotation marks, citation, and alteration omitted).
“It is well established that in this Circuit the standard for an entry of a TRO is the same as for a preliminary injunction.” Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008) (collecting cases). “The showing of irreparable harm is perhaps the single most important prerequisite for a preliminary injunction.” CF 135 Flat LLC v. Triadou SPY N.A., No. 15 Civ. 5345, 2016 WL 2349111, at *1 (S.D.N.Y. May 3, 2016) (internal quotation marks, citation, and alteration omitted). Under this prong, the movant “must show that the injury it will suffer is likely and imminent, not remote or speculative, and that such injury is not capable of being fully remedied by money damages.” NAACP v. Town of E. Haven, 70 F.3d 219, 224 (2d Cir. 1995). To satisfy this requirement, a movant must demonstrate “that he would suffer irreparable harm if the TRO does not issue.” Andino, 555 F. Supp. 2d at 419. “The district court has wide discretion in determining whether to grant a preliminary injunction.” Almontaser v. N.Y.C. Dep’t of Educ., 519 F.3d 505, 508 (2d Cir. 2008) (internal quotation marks and citation omitted) (per curiam).
4

Case 2:20-Ccva-s1e0914:290--LcVvP-0-2M5J1H8-AETCFDNoocu. m5-e1n1t 1f1iledF0ile4d/1073/2/206/2P0agPeaIDg.e4251of 1P5age 9 of 95
II. Analysis A. Irreparable Harm
In the Second Circuit, a “showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (internal quotation marks and citations omitted). That harm must be “actual and imminent” rather than speculative. Id.
Petitioners have shown irreparable injury by establishing the risk of harm to their health and to their constitutional rights.
1. Risk of Death On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic. Petition ¶ 26. At that time, there were more than 118,000 cases in 114 countries, and 4,291 people had died. Id. ¶ 27. Merely two weeks later, there have been at least 458,927 cases identified in 172 countries and at least 20,807 people have died. Id. New York and its surrounding areas have become one of the global epicenters of the outbreak. Id. ¶ 35. Petitioners are held at detention facilities located in northern New Jersey. See id. ¶¶ 5–14. As of March 26, 2020, New Jersey has 4,407 confirmed cases of COVID-19—the second highest number of reported cases by any state after New York. Niko Kommenda and Pablo Gutierrez, Coronavirus map of the US: latest cases state by state, The Guardian (Mar. 26, 2020), https://www.theguardian.com/world/ng-interactive/2020/mar/26/coronavirus-map-of-the-uslatest-cases-state-by-state. New Jersey also has the fourth most COVID-19 related deaths in the country. Id. The three counties where the jails are located—Bergen, Essex, and Hudson counties—comprise one-third of the confirmed cases of COVID-19 in New Jersey, with Bergen County reporting 819 positive results, Essex reporting 381 positives, and Hudson 260. Petition
5

Case 2:20-cCva-1s0e914:92-0L-VcvP--0M25JH18-AETCFDNooc.u5m-1e1nt 1fi1ledF0i4le/d170/32/026/2P0agePIaDg.4e262of P15age 10 of 95
¶ 36. The jails are no exceptions. Each of the jails where a Petitioner is being housed has reported confirmed cases of COVID-19. Id. ¶ 41. This includes two detainees and one correctional officer in the Hudson County Jail; one detainee at the Bergen County Jail; and a “superior officer” at the Essex County Jail. Id.
The nature of detention facilities makes exposure and spread of the virus particularly harmful. Jaimie Meyer, M.D., M.S., who has worked extensively on infectious disease treatment and prevention in the context of jails and prisons, recently submitted a declaration in this district noting that the risk of COVID-19 to people held in New York-area detention centers, including the Hudson, Bergen, and Essex County Jails, “is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected.” Meyer Decl. ¶ 7, Velesaca v. Wolf, 20 Civ. 1803 (S.D.N.Y. Feb. 28, 2020), ECF No. 42.
Moreover, medical doctors, including two medical experts for the Department of Homeland Security, have warned of a “tinderbox scenario” as COVID-19 spreads to immigration detention centers and the resulting “imminent risk to the health and safety of immigrant detainees” and the public. Catherine E. Shoichet, Doctors Warn of “Tinderbox scenario” if Coronavirus Spreads in ICE Detention, CNN (Mar. 20, 2020), https://www.cnn.com/2020/03/20/health/ doctors-ice-detention-coronavirus/index.html. “It will be nearly impossible to prevent widespread infections inside the Hudson, Bergen, and Essex County jails now that the virus is in the facilities because detainees live, sleep, and use the bathroom in close proximity with others, and because ‘[b]ehind bars, some of the most basic disease prevention measures are against the rules or simply impossible.’” Petition ¶ 47 (internal quotation marks and citation omitted).
Petitioners face serious risks to their health in their confinement. Each has underlying illnesses, including asthma, diabetes, heart disease, hypertension, obesity, and respiratory
6

Case 2:20-cCva-1s0e914:92-0L-VcvP--0M25JH18-AETCFDNooc.u5m-1e1nt 1fi1ledF0i4le/d170/32/026/2P0agePIaDg.4e273of P15age 11 of 95
problems including COPD. Id. ¶¶ 5–14. The Court takes judicial notice that, for people of advanced age, with underlying health problems, or both, COVID-19 causes severe medical conditions and has increased lethality. People at Risk for Serious Illness from COVID-19, Centers for Disease Control (Mar. 20, 2020), https://www.cdc.gov/coronavirus/2019ncov/specific-groups/high-risk-complications.html (“Older people and people of all ages with severe underlying health conditions—like heart disease, lung disease and diabetes, for example—seem to be at higher risk of developing serious COVID-19 illness.”); Information for Healthcare Professionals: COVID-19 and Underlying Conditions, Centers for Disease Control (Mar. 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/underlying-conditions.html (listing, among other medical diagnoses, “moderate to severe asthma,” “heart disease,” “obesity,” and “diabetes” as conditions that trigger higher risk of severe illness from COVID-19); see Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.”); Brickey v. Superintendent, Franklin Corr. Facility, No. 10 Civ. 085, 2011 WL 868148, at *2 n.3 (N.D.N.Y. Feb. 17, 2011) (taking judicial notice of the meaning and symptoms of the condition sciatica), report and recommendation adopted, 2011 WL 868087 (N.D.N.Y. Mar. 10, 2011); Lin v. Metro. Life Ins. Co., No. 07 Civ. 03218, 2010 WL 668817, at *1 (S.D.N.Y. Feb. 25, 2010) (“In its decision, the Court took judicial notice of certain medical background information about Hepatitis B.”).
A number of courts in this district and elsewhere have recognized the threat that COVID19 poses to individuals held in jails and other detention facilities. See United States v. Stephens, No. 15 Cr. 95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (“[I]nmates may be at a
7

Case 2:20-cCva-1s0e914:92-0L-VcvP--0M25JH18-AETCFDNooc.u5m-1e1nt 1fi1ledF0i4le/d170/32/026/2P0agePIaDg.4e284of P15age 12 of 95
heightened risk of contracting COVID-19 should an outbreak develop.”) (collecting authorities); United States v. Garlock, 18 Cr. 418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (“By now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided. Several recent court rulings have explained the health risks—to inmates, guards, and the community at large—created by large prison populations. The chaos has already begun inside federal prisons—inmates and prison employees are starting to test positive for the virus, quarantines are being instituted, visits from outsiders have been suspended, and inmate movement is being restricted even more than usual.” (citations omitted)); see also Letter from Mike McGrath, Chief Justice, Montana Supreme Court, to Montana Courts of Limited Jurisdiction Judges (Mar. 20, 2020), https://courts.mt.gov/Portals/ 189/virus/Ltr%20to%20COLJ%20Judges%20re%20COVID-19%20032020.pdf?ver=2020-0320-115517-333 (“Because of the high risk of transmittal of COVID-19, not only to prisoners within correctional facilities but staff and defense attorneys as well, we ask that you review your jail rosters and release, without bond, as many prisoners as you are able, especially those being held for nonviolent offenses. . . . Due to the confines of [correctional] facilities, it will be virtually impossible to contain the spread of the virus.”). Indeed, at least one court has ordered the release on bail of a non-citizen in immigration detention on the ground that detention conditions have been rendered unsafe by COVID-19. Calderon Jimenez v. Wolf, No. 18 Civ. 10225 (D. Mass. Mar. 26, 2020), ECF No. 507. Addressing the situation in New Jersey specifically, the New Jersey Supreme Court has held that “reduction of county jail populations, under appropriate conditions, is in the public interest to mitigate risks imposed by COVID-19” in light of “the profound risk posed to people in correctional facilities arising from the spread of COVID-19,” and has ordered the release of many individuals serving sentences in New Jersey
8

Case 2:20-cCva-1s0e914:92-0L-VcvP--0M25JH18-AETCFDNooc.u5m-1e1nt 1fi1ledF0i4le/d170/32/026/2P0agePIaDg.4e295of P15age 13 of 95
county jails. In the Matter of the Request to Commute or Suspend County Jail Sentences, Case No. 84230 (N.J. Mar. 22, 2020).
Courts have also recognized this health risk to be particularly acute—and of constitutional significance—for inmates who are elderly or have underlying illnesses. See United States v. Martin, No. 19 Cr. 140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“[T]he Due Process Clauses of the Fifth or Fourteenth Amendments, for federal and state pretrial detainees, respectively, may well be implicated if defendants awaiting trial can demonstrate that they are being subjected to conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness.”). At least one court has ordered the release on bail of an inmate facing extradition on the basis of the risk to his health the pandemic poses. Matter of Extradition of Toledo Manrique, No. 19 MJ 71055, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020) (“These are extraordinary times. The novel coronavirus that began in Wuhan, China, is now a pandemic. The nine counties in the San Francisco Bay Area have imposed shelter-in-place orders in an effort to slow the spread of the contagion. This Court has temporarily halted jury trials, even in criminal cases, and barred the public from courthouses. Against this background, Alejandro Toledo has moved for release, arguing that at 74 years old he is at risk of serious illness or death if he remains in custody. The Court is persuaded. The risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail.”).
The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO. See Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir. 1995) (upholding finding of irreparable injury “premised . . . upon [the district court’s] finding that [plaintiff] was subject to risk of injury,
9

Case 2:20-Ccva-s1e0914:290--LcVvP-0-2M5J1H8-AETCFDNoocu. m5-e1n1t 1f1iledF0ile4d/1073/2/206/2P0agPeaIDg.e42160 ofP1a5ge 14 of 95
infection, and humiliation”); Mayer v. Wing, 922 F. Supp. 902, 909 (S.D.N.Y. 1996) (“[T]he deprivation of life-sustaining medical services . . . certainly constitutes irreparable harm.”).
2. Constitutional Violations Second, Petitioners have also shown irreparable injury because, as discussed below, they face a violation of their constitutional rights. In the Second Circuit, it is well-settled that an alleged constitutional violation constitutes irreparable harm. See, e.g., Connecticut Dep’t of Envtl. Prot. v. O.S.H.A., 356 F.3d 226, 231 (2d Cir. 2004) (“[W]e have held that the alleged violation of a constitutional right triggers a finding of irreparable injury.” (internal quotation marks and citations omitted)); Statharos v. New York City Taxi & Limousine Comm’n, 198 F.3d 317, 322 (2d Cir. 1999) (“Because plaintiffs allege deprivation of a constitutional right, no separate showing of irreparable harm is necessary.”); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (clarifying that “it is the alleged violation of a constitutional right that triggers a finding of irreparable harm” and a substantial likelihood of success on the merits of a constitutional violation is not necessary); Sajous v. Decker, No. 18 Civ. 2447, 2018 WL 2357266, at *12 (S.D.N.Y. May 23, 2018) (finding that immigration detainee established irreparable injury by alleging that prolonged immigration detention violated his constitutional due process rights). The Court finds, therefore, that Petitioners have established the threat of irreparable harm absent the TRO.
B. Likelihood of Success on the Merits The Court concludes that Petitioners have met their burden of showing a likelihood of success on the merits. Petitioners argue that their continued confinement in ICE detention centers where COVID-19 is present and without adequate protection for their health violates their due process rights. TRO at 8. The Court agrees.
10

Case 2:20-Ccva-s1e0914:290--LcVvP-0-2M5J1H8-AETCFDNoocu. m5-e1n1t 1f1iledF0ile4d/1073/2/206/2P0agPeaIDg.e42171 ofP1a5ge 15 of 95
The Due Process Clause of the Fifth Amendment to the United States Constitution forbids the government from depriving a person of life, liberty, or property without due process of law. The protection applies to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). An application for habeas corpus under 28 U.S.C. § 2241 is the appropriate vehicle for an inmate in federal custody to challenge conditions or actions that pose a threat to his medical wellbeing. See Roba v. United States, 604 F.2d 215, 218–19 (2d Cir. 1979) (allowing a § 2241 application to challenge an inmate’s “transfer while seriously ill” where that transfer posed a risk of fatal heart failure).
Immigration detainees can establish a due process violation for unconstitutional conditions of confinement by showing that a government official “knew, or should have known” of a condition that “posed an excessive risk to health,” and failed to take appropriate action. Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017); Charles v. Orange Cty., 925 F.3d 73, 87 (2d Cir. 2019) (“Deliberate indifference . . . can be established by either a subjective or objective standard: A plaintiff can prove deliberate indifference by showing that the defendant official recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to the plaintiff’s health or safety.” (internal quotation marks, citation, and alterations omitted)). The risk of contracting COVID-19 in tightly-confined spaces, especially jails, is now exceedingly obvious.2 It can no longer be denied that Petitioners, who
2 Other courts have recognized the heightened risk to detainees of contracting COVID-19. See, e.g., XochihuaJaimes v. Barr, 18-71460, Doc. No. 53 (9th Cir. Mar. 23, 2020) (unpublished) (“In light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that [p]etitioner be immediately released from detention . . . .”); Stephens, 2020 WL 1295155, at *2 (ordering “conditions of 24-hour home incarceration and electronic location monitoring”); Chris Villani, Releasing ICE Detainee, Judge Says Jail No Safer Than Court, Law360, March 25, 2020 (“We are living in the midst of a coronavirus pandemic, some infected people die, not all, but some infected people die,” U.S. District
11

Case 2:20-Ccva-s1e0914:290--LcVvP-0-2M5J1H8-AETCFDNoocu. m5-e1n1t 1f1iledF0ile4d/1073/2/206/2P0agPeaIDg.e42182 ofP1a5ge 16 of 95
suffer from underlying illnesses, are caught in the midst of a rapidly-unfolding public health crisis. The Supreme Court has recognized that government authorities may be deemed “deliberately indifferent to an inmate’s current health problems” where authorities “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993). Petitioners need not demonstrate that “they actually suffered from serious injuries” to show a due process violation. Darnell, 849 F.3d at 31; see Helling, 509 U.S. at 33. Instead, showing that the conditions of confinement “pose an unreasonable risk of serious damage to their future health” is sufficient. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Helling, 509 U.S. at 35) (alteration omitted).
Respondents have exhibited, and continue to exhibit, deliberate indifference to Petitioners’ medical needs. The spread of COVID-19 is measured in a matter of a single day—not weeks, months, or years—and Respondents appear to ignore this condition of confinement that will likely cause imminent, life-threatening illness. At oral argument, Respondents represented that ICE and the detention facilities in which Petitioners are housed are taking certain measures to prevent the spread of the virus: screening detainees upon intake for risk factors, isolating detainees who report symptoms, conducting video court appearances with only one detainee in the room at a time, providing soap and hand sanitizer to inmates, and increasing the frequency and intensity of cleaning jail facilities.
These measures are patently insufficient to protect Petitioners. At today’s hearing, Respondents could not represent that the detention facilities were in a position to allow inmates
Judge Wolf said. “Being in a jail enhances risk. Social distancing is difficult or impossible, washing hands repeatedly may be difficult. There is a genuine risk this will spread throughout the jail.”).
12

Case 2:20-Ccva-s1e0914:290--LcVvP-0-2M5J1H8-AETCFDNoocu. m5-e1n1t 1f1iledF0ile4d/1073/2/206/2P0agPeaIDg.e42193 ofP1a5ge 17 of 95
to remain six feet apart from one another, as recommended by the Centers for Disease Control and Prevention (“CDC”). See How to Protect Yourself, Centers for Disease Control (Mar. 18, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html. Nor could Respondents provide the Court with any information about steps taken to protect high-risk detainees like Petitioners. And though Respondents represented that the detention facilities are below their full capacity, the appropriate capacity of a jail during a pandemic obviously differs enormously from its appropriate capacity under ordinary circumstances. Confining vulnerable individuals such as Petitioners without enforcement of requisite social distancing and without specific measures to protect their delicate health “pose[s] an unreasonable risk of serious damage to [their] future health,” Phelps, 308 F.3d at 185 (internal quotation marks and citation omitted), and demonstrates deliberate indifference.
The Court holds, therefore, that Petitioners are likely to succeed on the merits of their due process claim that Respondents knew or should have known that Petitioners’ conditions of confinement pose excessive risks to their health.3
C. Balance of Equities and Public Interest The equities and public interest weigh heavily in Petitioners’ favor. First, Petitioners face irreparable injury—to their constitutional rights and to their health. Second, the potential harm to Respondents is limited. At today’s hearing, Respondents were unable to identify a single specific reason for Petitioners’ continued detention. And the Court finds that there is none. Petitioners’ counsel committed to ensuring the continued appearance of Petitioners at immigration hearings. And, of course, Petitioners’ failure to appear at those hearings would carry grave consequences for their respective cases. The Court finds that
3 The Court does not reach Petitioners’ additional argument that they are likely to succeed on the merits of the claim that their due process rights were violated because their current conditions of confinement are punitive. TRO at 8–9.
13

Case 2:20-Ccva-s1e0914:290--LcVvP-0-2M5J1H8-AETCFDNoocu. m5-e1n1t 1f1iledF0ile4d/1073/2/206/2P0agPeaIDg.e43104 ofP1a5ge 18 of 95
those incentives are sufficient to safeguard Respondents’ interest in Petitioners’ in-person participation in future immigration court proceedings.
At oral argument, Respondents raised the fact that Petitioners Martinez and Pena are currently mandatorily detained pursuant to 18 U.S.C. § 1226(c).4 However, courts have the authority to order those detained in violation of their due process rights released, notwithstanding § 1226(c). See Cabral v. Decker, 331 F. Supp. 3d 255, 259 (S.D.N.Y. 2018) (collecting cases). Thus, Respondents have failed to justify Petitioners’ continued detention in unsafe conditions.
Finally, the public interest favors Petitioners’ release. Petitioners are confined for civil violations of the immigration laws. In the highly unusual circumstances posed by the COVID-19 crisis, the continued detention of aging or ill civil detainees does not serve the public’s interest. See Declaration of Dr. Homer Venters ¶ 12, Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (opining that “the design and operation of detention settings promotes the spread of communicable diseases such as COVID19”); Declaration of Dr. Carlos Franco-Paredes, id. at ECF No. 81-12 at 1 (“Immigration detention centers in the U.S. are tinderboxes for the transmission of highly transmissible infectious pathogens including the SARS-CoV-2, which causes COVID-19. Given the large population density of immigration detention centers and the ease of transmission of this viral pathogen, the attack rate inside these centers will take exponential proportions, consuming significant medical and financial resources.”); Urgent action needed to prevent COVID-19 “rampaging through places of detention” – Bachelet, UNHCR (Mar. 25, 2020), https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=25745&LangID=e (United Nations High Commissioner for Human Rights urging that detention of people in jails
4 As represented by Petitioners’ counsel, Martinez’s § 1226(c) detention was triggered by his conviction for controlled substances trafficking in 2014, an offense for which he served no term of imprisonment. Pena’s § 1226(c) detention was triggered by misdemeanor marijuana convictions from 2002.
14

Case 2:20-Ccva-s1e0914:290--LcVvP-0-2M5J1H8-AETCFDNoocu. m5-e1n1t 1f1iledF0ile4d/1073/2/206/2P0agPeaIDg.e43115 ofP1a5ge 19 of 95
“should be a measure of last resort, particularly during this crisis”). To the contrary, public health and safety are served best by rapidly decreasing the number of individuals detained in confined, unsafe conditions. See, e.g., Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (referring to “public health” as a “significant public interest”).
CONCLUSION For the reasons stated above, the TRO is GRANTED. Respondents, and the Hudson, Bergen, and Essex County Correctional Facilities are ORDERED to immediately release Petitioners today on their own recognizance without fail. Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings. The TRO will expire on April 9, 2020, at 6:30 p.m. No later than April 2, 2020, at 12:00 p.m., Respondents must show cause why the TRO should not be converted to a preliminary injunction. Petitioners may file a response no later than April 7, 2020, at 12:00 p.m. SO ORDERED. Dated: March 26, 2020, at 6:30 p.m. New York, New York
15

Case 25:20-cv-100964197-LTVJHP-KMSJHDoEcCuFmNenot. 157-11Filfeilded040/40/1/72/020 PaPgaeg1eIoDf.41352 PaPgaegeID2#0:1o4f 0985

Case 25:20-cv-100964197-LTVJHP-KMSJHDoEcCuFmNenot. 157-11Filfeilded040/40/1/72/020 PaPgaeg2eIoDf.41353 PaPgaegeID2#1:1o4f 0995

1 [“BICE”] on May 23, 2019, and, then placed into removal proceedings, with the

2 service of a Notice to Appear at the time of his arrest. Hernandez’s removal

3 proceedings are pursuant to the Immigration and Nationality Act [“INA”] §

4 212(a)(6)(A)(i)(I), for being an alien present in the United States without being admitted

5 or paroled.

6

Adelanto is a private, for-profit immigration detention facility operated by Geo

7 Group, Inc. Adelanto has the capacity to hold, under normal situations, well over

8 1,000 detainees through a contract with BICE. Over the years, and as recently as 2018,

9 DHS’s Office of the Inspector General had, repeatedly, found that significant and

10 various health and safety risks existed at Adelanto.

11

Hernandez, a citizen of Mexico, has, apparently, resided in the United States for

12 almost thirty years. His life partner is Maria Victoria de Ortiz, a lawful permanent

13 resident of the United States who resides in Altadena, California. Together, they have

14 a 12-year-old daughter, who is a United States citizen.

15

Hernandez has a history of various criminal charges and convictions. Of

16 significant note is that all of Hernandez’s convictions were for infractions or

17 misdemeanors. He has never been convicted of a felony. Hernandez has been

18 convicted of the following:

19

20

Date

Offense

Sentence

21

1997 Hit and Run with Property Damage, Cal. 40 days in jail and 36

22

Veh. Code § 20002(a)

23

2014 Theft, Cal. Penal Code § 484(a)

months probation 1 day in jail and 36

24

months probation

25

2016 Driving Without a Valid License, Cal. Fine

26

Veh. Code § 12500(a)

27

2017 Possession of a Controlled Substance, Probation extension

28

Cal. Health and Safety Code § 11377

Order – Page 2 of 15

Case 25:20-cv-100964197-LTVJHP-KMSJHDoEcCuFmNenot. 157-11Filfeilded040/40/1/72/020 PaPgaeg3eIoDf.41354 PaPgaegeID2#2:1o4f 1905

1

2017 Petty Theft, Cal. Penal Code § 490.2 60 days in jail and 36

2

months probation

3

2017 Trespassing, Cal. Penal Code § 602(m) 4 days in jail and 36

4

months probation

5

2018 Possession of a Controlled Substance, 30 days in jail and 36

6

Cal. Health and Safety Code § 11377 months probation

7

2019 Possession of Burglary Tools, Cal. Penal 36 months probation

8

Code § 466; Shoplifting, Cal. Penal Code

9

§ 602(m)459.5; and Driving Without a

10

License, Cal. Veh. Code § 12500(a)

11

In response to Hernandez’s May 15, 2019, convictions in Glendale, California,

12 BICE officers arrested him on May 23, 2019. Around June 12, 2019, Hernandez had

13 his first bond hearing, where bond was denied after an immigration judge found that he

14 was a flight risk due to his “multiple failures to appear in the Superior Court of

15 California and his lack of ties to the community. The immigration judge, also, found

16 that Hernandez was a mandatory detainee under INA § 236(c), which is codified as 8

17 U.S.C. § 1226(c).

18

In reviewing Hernandez’s rap sheet, provided by the Government, this Court

19 noted that Hernandez was, indeed, charged on four separate occasions – in 1997, 2003,

20 2006 and 2017 – with failing to appear in violation of Cal. Veh. Code § 40508(A).

21 But, the Court, also, noted that each of those four charges were, indeed, dismissed,

22 with one dismissed, specifically, in the furtherance of justice. So, it is noteworthy that

23 immigration judges considered dismissed charges as a basis for the conclusion that

24 Hernandez was a flight risk. It is, also, noteworthy that an immigration judge

25 concluded that Hernandez had a lack of ties to the community even though his life

26 partner and daughter reside in Altadena, California. But, those issues are not directly

27 before this Court.

28

Regardless, on November 27, 2019, an immigration judge denied Hernandez’s

Order – Page 3 of 15

Case 25:20-cv-100964197-LTVJHP-KMSJHDoEcCuFmNenot. 157-11Filfeilded040/40/1/72/020 PaPgaeg4eIoDf.41355 PaPgaegeID2#3:1o4f 1915

1 applications for asylum, withholding of removal and protection under the Convention

2 against Torture. On December 2, 2019, Hernandez had a Rodriguez bond hearing, at

3 which bond was denied because the immigration judge lacked jurisdiction. On

4 December 20, 2019, Hernandez filed an appeal with the Board of Immigration Appeals

5 [“BIA”]. On January 14, 2020, an immigration judge denied Hernandez’s request for

6 a change in custody, finding that he was a flight risk who had a removal order, and,

7 also, finding that Hernandez had multiple failures to appear. Hernandez’s appeal with

8 the BIA remains pending.

9

On March 4, 2020, the State of California declared a state of emergency in

10 response to the coronavirus and the resulting COVID-19 disease, which attacks the

11 respiratory system, thereby making Hernandez particularly vulnerable given his history

12 of asthma. On March 10, 2020, San Bernardino County followed suit and declared a

13 state of emergency. On March 11, 2020, the World Health Organization [“WHO”]

14 declared COVID-19 to be a global pandemic. On March 13, 2020, President Donald

15 J. Trump formally acknowledged and declared a national emergency in response to

16 WHO’s pandemic declaration.

17

On March 18, 2020, BICE announced that "[t]o ensure the welfare and safety of

18 the general public as well as officers and agents in light of the ongoing COVID-19

19 pandemic response, [it] will temporarily adjust its enforcement posture beginning today

20 ... [and that its] highest priorities are to promote life-saving and public safety

21 activities." Further, BICE stated that it would focus enforcement "on public safety risks

22 and individuals subject to mandatory detention based on criminal grounds [, and for

23 those people who do not fall into those categories, agents] will exercise discretion to

24 delay enforcement actions until after the crisis or utilize alternatives to detention, as

25 appropriate."

26

According to the United States Centers for Disease Control and Prevention, the

27 coronavirus is spread mainly through person-to-person contact. More specifically, the

28 coronavirus is spread between people who are in close contact – within about 6 feet –

Order – Page 4 of 15

Case 25:20-cv-100964197-LTVJHP-KMSJHDoEcCuFmNenot. 157-11Filfeilded040/40/1/72/020 PaPgaeg5eIoDf.41356 PaPgaegeID2#4:1o4f 1925

1 with one another through respiratory droplets produced when an infected person coughs

2 or sneezes. The droplets can land in the mouths or noses, or can be inhaled into the

3 lungs, of people who are within about 6 feet of the infected person. Moreover, studies

4 have established that the coronavirus can survive up to three days on various surfaces.

5

COVID-19 is highly contagious and has a mortality rate ten times greater than

6 influenza. Most troublesome is the fact that people infected with the coronavirus can

7 be asymptomatic during the two to fourteen day COVID-19 incubation period. During

8 that asymptomatic incubation period, infected people are, unknowingly, capable of

9 spreading the coronavirus. Despite early reports, no age group is safe from COVID-

10 19. While older people with pre-existing conditions are the most vulnerable to COVID-

11 19-related mortality, young people without preexisting conditions have, also,

12 succumbed to COVID-19. There is no specific treatment, vaccine or cure for COVID-

13 19.

14

Because of the highly contagious nature of the coronavirus and the, relatively

15 high, mortality rate of COVID-19, the disease can spread uncontrollably with

16 devastating results in a crowded, closed facility, such as an immigration detention

17 center.

18

The Court will take judicial notice of the following facts, as set forth in the

19 temporary retraining order issued by this Court on March 27, 2020, in Castillo v. Barr,

20 CV 20-00605 TJH. At Adelanto, a holding area can contain 60 to 70 detainees, with

21 a large common area and dormitory-type sleeping rooms housing four or six detainees

22 with shared sinks, toilets and showers. Guards regularly rotate through the various

23 holding areas several times a day. At meal times – three times a day – the 60 to 70

24 detainees in each holding area line up together, sometimes only inches apart, in the

25 cafeteria. The guards, detainees and cafeteria workers do not regularly wear gloves or

26 masks to prevent the spread of the coronavirus. While detainees have access to gloves,

27 there is no requirement that they wear them. Detainees do not have access to masks

28 or hand sanitizer – though thorough hand washing could be more effective than hand

Order – Page 5 of 15

Case 25:20-cv-100964197-LTVJHP-KMSJHDoEcCuFmNenot. 157-11Filfeilded040/40/1/72/020 PaPgaeg6eIoDf.41357 PaPgaegeID2#5:1o4f 1935

1 sanitizers at preventing the spread of the coronavirus.

2

Last week, the first BICE detainee was confirmed to have been infected with

3 COVID-19 in New Jersey at the Bergin County Jail, a BICE detention facility. The

4 week before last, a correctional officer at the Bergin County Jail was, also, confirmed

5 to have been infected. As of the date of this order, two additional ICE detainees at the

6 Bergin County Jail were confirmed to have been infected.

7

On March 26, 2020, Judge Analisa Torres of the United States District Court for

8 the Southern District of New York issued an order releasing certain immigration

9 detainees, stating the following:

10

The nature of detention facilities makes exposure and spread of the

11

virus particularly harmful. Jaimie Meyer M.D., M.S., who has worked

12

extensively on infectious diseases treatment and prevention in the context

13

of jails and prisons, recently submitted a declaration in this district noting

14

that the risk of COVID-19 to people held in New York-area detention

15

centers, including the Hudson, Bergen County, and Essex County jails, “is

16

significantly higher than in the community, both in terms of risk of

17

transmission, exposure, and harm to individuals who become infected.”

18

Meyer Decl. ¶ 7, Velesaca v. Wolf, 20 Civ. 1803 (S.D.N.Y. Feb. 28,

19

2020), ECF No. 42.

20

Moreover, medical doctors, including two medical experts for the

21

Department of Homeland Security, have warned of a “tinderbox scenario”

22

as COVID-19 spreads to immigration detention centers and the resulting

23

“imminent risk to the health and safety of immigrant detainees” and the

24

public. Catherine E. Shoichet, Doctors Warn of “Tinderbox scenario” if

25

Coronavirus Spreads in ICE Detention, CNN (Mar. 20, 2020),

26

https://www.cnn.com/2020/03/20/health/doctors-ice-detention-

27

coronavirus/index.html. “It will be nearly impossible to prevent

28

widespread infections inside the Hudson, Bergen, and Essex County jails

Order – Page 6 of 15

Case 25:20-cv-100964197-LTVJHP-KMSJHDoEcCuFmNenot. 157-11Filfeilded040/40/1/72/020 PaPgaeg7eIoDf.41358 PaPgaegeID2#6:1o4f 1945

1

now that the virus is in the facilities because detainees live, sleep, and use

2

the bathroom in close proximity with others, and because ‘[b]ehind bars,

3

some of the most basic disease prevention measures are against the rules

4

or simply impossible.’” Petition ¶ 47 (internal quotation marks and citation

5

omitted).

6 Basank, et al., v. Decker, et al., 20 Civ. 2518 (S.D.N.Y., Feb. 28, 2020), ECF No.

7 11.

8

On March 23, 2020, the Ninth Circuit ordered, sua sponte and without further

9 explanation, the release of an immigration detainee “[i]n light of the rapidly escalating

10 public health crisis, which public health authorities predict will especially impact

11 immigration detention centers.” Xochihua-Jaimes v. Barr, 2020 WL 1429877, No. 18-

12 71460 (9th Cir. Mar. 23, 2020).

13

On March 23, 2020, Hernandez filed a petition for a writ of habeas corpus,

14 pursuant to 28 U.S.C. § 2241. Hernandez’s petition sets forth one claim – in light of

15 the recent COVID-19 pandemic, the conditions of his confinement are, now,

16 unconstitutional.

17

Hernandez’s habeas petition and the relief it seeks from this Court are not barred

18 by the fact that he might be subject to mandatory detention pursuant to INA § 236(c).

19 See Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011). While the INA does restrict

20 jurisdiction in federal courts for certain claims, it does not restrict habeas jurisdiction

21 for petitions that raise constitutional claims. See Singh, 638 F.3d at 1202.

22

Hernandez, now, moves for a temporary restraining order for his immediate

23 release from Adelanto.

24

Hernandez is entitled to a temporary restraining order if he shows: (1) A

25 likelihood of success on the merits; (2) That he is likely to suffer irreparable harm in

26 the absence of relief; (3) The balance of equities tip in his favor; and (4) An injunction

27 is in the public’s interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20

28 (2008). Under the Ninth Circuit’s sliding scale approach, a stronger showing of one

Order – Page 7 of 15

Case 25:20-cv-100964197-LTVJHP-KMSJHDoEcCuFmNenot. 157-11Filfeilded040/40/1/72/020 PaPgaeg8eIoDf.41359 PaPgaegeID2#7:1o4f 195

1 element may offset a weaker showing of another. See Pimentel v. Dreyfus, 670 F.3d

2 1096, 1105 (9th Cir. 2012). Accordingly, Hernandez is entitled to a temporary

3 restraining order if “serious questions going to the merits [are] raised and the balance

4 of hardships tips sharply in [his] favor.” All. for the Wild Rockies v. Cottrell, 632 F.3d

5 1127, 1131 (9th Cir. 2011).

6

When the Government detains a person for the violation of an immigration law,

7 the person is a civil detainee, even if he has a prior criminal conviction. See Zadvydas

8 v. Davis, 533 U.S. 678, 690 (2001). As a civil detainee, Hernandez is entitled to more

9 considerate treatment than criminal detainees, whose conditions of confinement are

10 designed to punish. See Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982).

11 Moreover, under the Fifth Amendment’s Due Process Clause, a civil detainee cannot

12 be subjected to conditions that amount to punishment. See King v. Cty. of L.A., 885

13 F.3d 548, 556-557 (9th Cir. 2018).

14

When the Government takes a person into custody and detains him against his

15 will, the Constitution imposes upon the Government a duty to assume responsibility for

16 that detainee’s safety and general well being. See Helling v. McKinney, 509 U.S. 25,

17 32 (1993). Under the Eighth Amendment, the Government must provide criminal

18 detainees with basic human needs, including reasonable safety. Helling, 509 U.S. at

19 32. The Government violates the Eighth Amendment if it confines a criminal detainee

20 in unsafe conditions. See Helling, 509 U.S. at 33. Moreover, the Government may not

21 “ignore a condition of confinement that is sure or very likely to cause serious illness.”

22 See Helling, 509 U.S. at 32.

23

A civil detainee’s constitutional rights are violated if a condition of his

24 confinement places him at substantial risk of suffering serious harm, such as the harm

25 caused by a pandemic. See Smith v, Wash., 781 F. App’x. 595, 588 (9th Cir. 2019).

26 At a minimum, here, the Government owes a duty to Hernandez, as a civil immigration

27 detainee, to reasonably abate known risks. See Castro v. Cty. of Los Angeles, 833 F.3d

28 1060, 1071 (9th Cir. 2016). Inadequate health and safety measures at a detention center

Order – Page 8 of 15

Case 25:20-cv-100964197-LTVJHP-KMSJHDoEcCuFmNenot. 157-11Filfeilded040/40/1/72/020 PaPgaeg9eIoDf.41450 PaPgaegeID2#8:1o4f 1965

1 cause cognizable harm to every detainee at that center. See Parsons v. Ryan, 754 F.3d

2 657, 679 (9th Cir. 2014).

3

Here, Hernandez argued that the conditions at Adelanto expose him to a

4 substantial risk of suffering serious harm – increasing his exposure to or contracting

5 COVID-19. When the Government detains a person, thereby taking custody of that

6 person, it creates a special relationship wherein the Government assumes responsibility

7 for that detainee’s safety and well-being. See, e.g., Henry A. v. Willden, 678 F.3d 991,

8 998 (9th Cir. 2012). If the Government fails to provide for a detainee’s basic human

9 needs, including medical care and reasonable safety, the Due Process Clause is violated.

10 DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989). Indeed,

11 the Due Process Clause mandates that civil immigration detainees are entitled to more

12 than minimal human necessities. See Jones v. Blanas, 393 F.3d 918, 931 (9th Cir.

13 2004). At a minimum, here, the Government owes a duty to Hernandez, as a civil

14 immigration detainee, to reasonably abate known risks. See Castro v. Cty. of Los

15 Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016). Inadequate health and safety measures

16 at a detention center cause cognizable harm to every detainee at that center. See

17 Parsons v. Ryan, 754 F.3d 657, 679 (9th Cir. 2014).

18

In its opposition brief, the Government set forth the United States Attorney

19 General’s discretionary right to detain an alien in removal proceedings prior to a final

20 order of removal. See 8 U.S.C. § 1226. Indeed, the Attorney General has the

21 discretion to either: (1) Detain the person without bond or (2) Release the person on a

22 bond of at least $1,500.00 or on conditional parole. 8 U.S.C. § 1226(a). In making

23 the initial bond determination, a BICE officer must assesses whether the person has

24 “demonstrate[d]” that “release would not pose a danger to property or persons, and that

25 the alien is likely to appear for any future proceeding.” 8 C.F.R. § 236.1(c)(8). If the

26 BICE officer determines that release, with or without bond, is not appropriate, then the

27 person may appeal to an Immigration Judge. 8 C.F.R. §§ 236.1(d)(1), 1003.19,

28 1236.1(d)(1). The Immigration Judge’s decision, then, would be appealable to the

Order – Page 9 of 15

CCaassee52::2200--ccvv--0100691479--TLJVHP--KMSJHDoEcCumF eNnot.157-11Filefidle0d40/041/1/270/20PaPgeag1e0IDo.f41451 PPaaggeeID29#:o1f49157

1 Board of Immigration Appeals. 8 C.F.R. §§ 1003.1(b)(7), 1003.19(f), 1003.38.

2

However, because Hernandez, here, has asserted a claim for violations of his

3 Fifth Amendment substantive due process rights, and those claims exceed the

4 jurisdictional limits of the Immigration Court and the Board of Immigration Appeals,

5 he need not first exhaust his administrative remedies. Garcia-Ramirez v. Gonzales, 423

6 F.3d 935, 938 (9th Cir. 2005).

7

The Government argued that Hernandez lacks standing because he cannot

8 establish that he would suffer a concrete, non-hypothetical injury absent a temporary

9 restraining order in that his likelihood of contracting COVID-19 is speculative. See

10 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).

11

However, it is clear that “[a] remedy for unsafe conditions need not await a tragic

12 event.” Helling, 509 U.S. at 33. The Government cannot be “deliberately indifferent

13 to the exposure of [prisoners] to a serious, communicable disease on the ground that the

14 complaining [prisoner] shows no serious current symptoms.” Helling, 509 U.S. at 33.

15 “That the Eighth Amendment protects against future harm to inmates is not a novel

16 proposition.” Helling, 509 U.S. at 33. The Supreme Court clearly stated that “... the

17 Eighth Amendment protects [prisoners] against sufficiently imminent dangers as well

18 as current unnecessary and wanton infliction of pain and suffering...” Helling, 509

19 U.S. at 33. Indeed, the Court concluded that where prisoners in punitive isolation were

20 crowded into cells and some of them had infectious maladies, “... the Eighth

21 Amendment required a remedy, even though it was not alleged that the likely harm

22 would occur immediately and even though the possible infection might not affect all of

23 those exposed.” Helling, 509 U.S. at 33. Civil detainees are entitled to greater liberty

24 protections than individuals detained under criminal processes. See Jones, 393 F.3d at

25 932.

26

In its amicus brief filed in Helling, the Government stated that it “... recognizes

27 that there may be situations in which exposure to toxic or similar substances would

28 present a risk of sufficient likelihood or magnitude – and in which there is a sufficiently

Order – Page 10 of 15

CCaassee52::2200--ccvv--0100691479--TLJVHP--KMSJHDoEcCumF eNnot.157-11Filefidle0d40/041/1/270/20PaPgeag1e1IDo.f41452 PPaaggeeID30#:o1f49158

1 broad consensus that exposure of anyone to the substance should therefore be prevented

2 – that the [Eighth] [A]mendment’s protection would be available even though the effects

3 of exposure might not be manifested for some time.” Helling, 509 U.S. at 34. The

4 Government, here, cannot say, with any degree of certainty, that no one – staff or

5 detainee – at Adelanto has not been, or will not be, infected with the coronavirus. The

6 science is well established – infected, asymptomatic carriers of the coronavirus are

7 highly contagious. Moreover, Hernandez, presently, is suffering from a condition of

8 confinement that takes away, inter alia, his ability to socially distance. The

9 Government cannot be deliberately indifferent to Hernandez’s potential exposure to a

10 serious, communicable disease on the ground that he is not, now, infected or showing

11 current symptoms. See Helling, 509 U.S. at 32.

12

It is “cruel and unusual punishment to hold convicted criminals in unsafe

13 conditions.” Helling, 509 U.S. at 33. The Eighth Amendment is violated when a

14 condition of a criminal detainee’s confinement puts him at substantial risk of suffering

15 serious harm and that the condition causes suffering inconsistent with contemporary

16 standards of human decency. See Smith v. Wash., 781 F. App’x. 595, 597-598 (9th

17 Cir. 2019). However, a civil detainee seeking to establish that the conditions of his

18 confinement are unconstitutional need only show that his conditions of confinement

19 “put [him] at substantial risk of suffering serious harm.” See Smith, 781 F. App’x.

20 597-598. Here, BICE cannot be deliberately indifferent to the potential exposure of

21 civil detainees to a serious, communicable disease on the ground that the complaining

22 detainee shows no serious current symptoms, or ignore a condition of confinement that

23 is more than very likely to cause a serious illness. See Helling, 509 U.S. at 32.

24

Under the Due Process Clause, a civil detainee cannot be subject to the current

25 conditions of confinement at Adelanto. The Supreme Court has acknowledged that it

26 has “... great difficulty agreeing that prison authorities may not be deliberately

27 indifferent to an inmate’s current health problems but may ignore a condition of

28 confinement that is sure or very likely to cause serious illness and needless suffering the

Order – Page 11 of 15

CCaassee52::2200--ccvv--0100691479--TLJVHP--KMSJHDoEcCumF eNnot.157-11Filefidle0d40/041/1/270/20PaPgeag1e2IDo.f41453 PPaaggeeID31#:o1f49159

1 next week or month or year.” Helling, 509 U.S. at 33

2

The Government, here, argued that Hernandez may not challenge the conditions

3 of his confinement through a habeas petition. Rather, according to the Government,

4 he may proceed only by way of a civil claim under 42 U.S.C. § 1983, and that the only

5 appropriate remedies under § 1983 are a judicially mandated change to the conditions

6 of confinement and money damages. The Government’s argument is misplaced.

7

In discussing the relationship between a habeas petition and a § 1983 claim, the

8 Supreme Court explained that a habeas petition is the appropriate avenue for a detainee

9 to attack the validity of the fact, or length, of confinement, with a potential remedy of

10 immediate release; whereas, a § 1983 claim is the appropriate avenue for a detainee to

11 attack something other than the fact, or length, of confinement, with a potential remedy

12 of a policy change and/or money damages. See Prieser v. Rodriguez, 441 U.S. 475,

13 494 (1973). Typically, conditions of confinement claims are raised by criminal

14 detainees while serving their criminal sentences. Consequently, immediate release

15 based on the conditions of confinement would not be appropriate, as that would

16 circumvent their criminal sentences. But, Hernandez is a civil detainee. Thus, it is

17 appropriate for him to proceed by way of a habeas petition because he challenges the

18 validity of his confinement and seeks his immediate release.

19

As the Court writes this order, the number of confirmed COVID-19 cases in the

20 United States has already exceeded the number of confirmed cases in every other

21 country on this planet. Indeed, all of the experts and political leaders agree that the

22 number of confirmed cases in the United States will only increase in the days and weeks

23 ahead. The number of cases in the United States has yet to peak. In San Bernardino

24 County, the number of confirmed cases, there, has more than tripled over the past

25 week.

26

The risk that Hernandez will flee is minimal given the current global pandemic,

27 his ties to the community, and his pending appeal before the BIA. Further, Hernandez

28 should be aware that if he is ordered released and, then, flees or violates any federal,

Order – Page 12 of 15

CCaassee52::2200--ccvv--0100691479--TLJVHP--KMSJHDoEcCumF eNnot.157-11Filefidle0d40/041/1/270/20PaPgeag1e3IDo.f41454 PPaaggeeID32#:o1f49250

1 state or local criminal law, it will have a dire impact on his pending BIA appeal and all

2 further proceedings in this case.

3

Civil detainees must be protected by the Government. Hernandez has not been

4 protected. He is not kept at least 6 feet apart from others at all times. He has been put

5 into a situation where he has been forced to touch surfaces touched by other detainees,

6 such as with common sinks, toilets and showers. Moreover, the Government cannot

7 deny the fact that the risk of infection in immigration detention facilities – and jails –

8 is particularly high if an asymptomatic guard, or other employee, enters a facility.

9 While social visits have been discontinued at Adelanto, the rotation of guards and other

10 staff continues.

11

Accordingly, Hernandez has established that there is more than a mere likelihood

12 of his success on the merits for his first claim, which is based on his Due Process

13 rights. See Winter, 555 U.S. at 20.

14

Hernandez has established that he is likely to suffer irreparable harm in the

15 absence of relief. See Winter, 555 U.S. at 20. It is well established that the deprivation

16 of constitutional rights unquestionably constitutes irreparable injury. See Hernanez v.

17 Session, 872 F.3d 976, 994 (9th Cir. 2017).

18

The balance of the equities tip sharply in his favor. Hernandez faces irreparable

19 harm to his constitutional rights and health. Indeed, there is no harm to the

20 Government when a court prevents the Government from engaging in unlawful

21 practices. See Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013).

22

Finally, the emergency injunctive relief sought, here, is absolutely in the public’s

23 est interest. The public has a critical interest in preventing the further spread of the

24 coronavirus. An outbreak at Adelanto would, further, endanger all of us – Adelanto

25 detainees, Adelanto employees, residents of San Bernardino County, residents of the

26 State of California, and our nation as a whole.

27

This is an unprecedented time in our nation’s history, filled with uncertainty,

28 fear, and anxiety. But in the time of a crisis, our response to those at particularly high

Order – Page 13 of 15

CCaassee52::2200--ccvv--0100691479--TLJVHP--KMSJHDoEcCumF eNnot.157-11Filefidle0d40/041/1/270/20PaPgeag1e4IDo.f41455 PPaaggeeID33#:o1f49251

1 risk must be with compassion and not apathy. The Government cannot act with a

2 callous disregard for the safety of our fellow human beings.

3

4

Accordingly,

5

6

It is Ordered that the application for a temporary restraining order be, and

7 hereby is, Granted.

8

9

It is further Ordered that Respondents shall, by 5:00 p.m. on April 2, 2020,

10 release Petitioner Enrique Francisco Hernandez from custody pending further order of

11 this Court, and subject to the following conditions of release:

12

1. Petitioner shall reside, and shelter in place, at the residence of Maria

13

Victoria de Ortiz, 2765 Bula Court, Altadena, California 91001 [“the

14

Residence”];

15

2. Petitioner shall be transported from the Adelanto Detention Center directly

16

to the Residence by Maria Victoria de Ortiz;

17

3. Petitioner shall not leave the Residence, pending further order of the

18

Court, except to obtain medical care;

19

4. Petitioner shall not violate any federal, state or local laws;

20

5. Petitioner shall not use or posses illegal drugs; and

21

6. At the discretion of DHS and/or BICE, to enforce the above restrictions,

22

Petitioner’s whereabouts may be monitored by telephonic and/or electronic

23

and/or GPS monitoring and/or a location verification system and/or an

24

automated identification system. If necessary to comply with the permitted

25

monitoring, Petitioner shall ensure the presence of a residential telephone

26

line without devices and/or services which may interrupt operation of any

27

monitoring equipment.

28

Order – Page 14 of 15

CCaassee52::2200--ccvv--0100691479--TLJVHP--KMSJHDoEcCumF eNnot.157-11Filefidle0d40/041/1/270/20PaPgeag1e5IDo.f41456 PPaaggeeID34#:o1f49252

1

It is further Ordered that Respondents shall show cause, if they have any, as

2 to why the Court should not issue a preliminary injunction in this case. Respondents’

3 response, if any, to this order to show cause shall be filed by Noon on April 6, 2020.

4 Hernandez’s reply, if any, to Respondents’ response shall be filed by Noon on April 9,

5 2020. The matter will then stand submitted.

6
7 Date: April 1, 2020
8 9 10

__________________________________ Terry J. Hatter, Jr.
Senior United States District Judge

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Order – Page 15 of 15

Case 2:20-Ccva-s1e0914:290-L-cVvP-0-M05J6H2-JEECJF DNoc. u5m-1e1nt f1il1ed F04ile/1d70/240/07/P2a0gePIDa.g4e471 ofP1a5ge 35 of 95

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

AARON HOPE,

:

et al.,

:

Petitioners-Plaintiffs,

:

:

v.

:

:

CLAIR DOLL, in his official capacity

:

as Warden of York County Prison,

:

et al.,

:

Respondents-Defendants.

:

1:20-cv-562 Hon. John E. Jones III

MEMORANDUM AND ORDER

April 7, 2020

Pending before the Court is the Motion for Temporary Restraining Order

and/or Preliminary Injunction filed by Petitioners-Plaintiffs Aaron Hope, Iwan

Rahardja, Jesus De La Pena, Rakibu Adam, Duc Viet Lam, Yelena Mukhina,

Nashom Gebretinsae, Ismail Muhammed, Glenn Weithers, Konstantin Bugarenko,

Brisio Balderas-Dominguez, Viviana Ceballos, Wilders Paul, Marcos Javier Ortiz

Matos, Alexander Alvarenga, Armando Avecilla, Coswin Ricardo Murray, Edwin

Luis Crisostomo Rodriguez, Eldon Bernard Briette, Dembo Sannoh, Jesus Angel

Juarez Pantoja and Alger Fracois, (collectively “Petitioners”). (Doc. 5).

For the reasons that follow, the temporary restraining order shall be granted

and the Respondents shall be directed to immediately release Petitioners today on

their own recognizance.

1

Case 2:20-Ccva-s1e0914:290-L-cVvP-0-M05J6H2-JEECJF DNoc. u5m-1e1nt f1il1ed F04ile/1d70/240/07/P2a0gePIDa.g4e482 ofP1a5ge 36 of 95
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Petitioners are a diverse group of individuals from around the world who are
being held in civil detention by Immigration and Customs Enforcement, (“ICE”), at York County Prison and Pike County Correctional facility, (“the Facilities”), while they await final disposition of their immigration cases.
Each Petitioner suffers from chronic medical conditions and faces an imminent risk of death or serious injury if exposed to COVID-19. Hope is 32 years old and has serious respiratory problems that have led to his hospitalization for pneumonia. He also has sleep apnea and high blood pressure. (Doc. 1, ¶ 3). Rahardja is 51 years old and suffers from diabetes and hypertension. (Doc. 1, ¶ 4). De La Pena is 37 years old and suffers from severe asthma and hypertension and is over-weight. (Doc. 1, ¶ 5). Adam, 34 years old, suffers from asthma and high blood pressure. (Doc. 1, ¶ 6). Viet Lam is 50 years old and suffers from diabetes and high blood pressure. Id. at ¶ 7. Mukhina is 35 years old and suffers from asthma, a heart murmur, and hepatitis C, and has a history of blood clots and seizures. (Doc.1, ¶ 8). Gebretnisae is 28 years old and suffers from Cn’s arthritis and nerve pain, requiring many medications. (Doc. 1, ¶ 9).
Muhammed is 69 years old and suffers from asthma, is pre-diabetic, and has recently lost a significant amount of weight. (Doc. 1, ¶ 10). Weithers is 59 years old and suffers from emphysema and chronic obstructive pulmonary
2

Case 2:20-Ccva-s1e0914:290-L-cVvP-0-M05J6H2-JEECJF DNoc. u5m-1e1nt f1il1ed F04ile/1d70/240/07/P2a0gePIDa.g4e493 ofP1a5ge 37 of 95
disease. (Doc. 1, ¶ 11). Bugarenko, age 49, suffers from pre-diabetes, high blood pressure, and diverticulitis, as well as debilitating pain that inhibits his ability to walk. (Doc. 1,¶ 12). Baldarez-Domingez is 47 years old and suffers from diabetes, atrial fibrillation, and high blood pressure. (Doc. 1, ¶ 13). Ceballos, 56 years old, suffers from high blood pressure. (Doc. 1, ¶ 14). Paul is 32 years old and suffers from traumatic brain injury, seizures, and headaches. (Doc. 1, ¶ 15).
Matos is 32 years old and suffers from diabetes. (Doc. 1, ¶ 16). Alvargena, age 46, suffers from diabetes, high blood pressure, atrial fibrillation, high cholesterol, and partial physical disability from a prior accident. (Doc. 1, ¶ 17). Avecilla is 53 years old and suffers from diabetes. (Doc 1, ¶ 18). Murray is 45 years old and suffers from asthma but has been unable to obtain an inhaler. (Doc. 1, ¶ 19). Rodriguez is 31 years old and suffers from asthma. (Doc. 1, ¶ 20). Briette is 46 years old and suffers from diabetes, high blood pressure, high cholesterol, depression, and anxiety. (Doc. 1, ¶ 21). Sannoh, 41 years old, suffers from diabetes requiring daily medication. (Doc. 1, ¶ 22). Pantoja is 36 years old and suffers from asthma, sleep apnea, and high blood pressure. (Doc.
3

Case 2:20-Ccva-s1e0914:290-L-cVvP-0-M05J6H2-JEECJF DNoc. u5m-1e1nt f1il1ed F04ile/1d70/240/07/P2a0gePIDa.g4e504 ofP1a5ge 38 of 95

1, ¶ 23). Francois is 45 years old and suffers from hypertension, pain when he urinates, and swollen feet. (Doc. 1, ¶ 24). 1
Named as Respondents are: Clair Doll, Warden of York County Prison; Craig A. Lowe, Warden of Pike County Correctional Facility; Simona FloresLund, Field Office Director, ICE Enforcement and Removal Operations; Matthew Albence, Acting Director of ICE; and Chad Wolf, Acting Secretary of the Department of Homeland Security.
II. DISCUSSION We had occasion to consider the substantially same set of circumstances less
than a week ago in our opinion Thakker v. Doll. No. 1:20-CV00480 (M.D. Pa. Mar. 31, 2020) (Jones, J.) (discussing in-depth the potential severity of COVID-19, its prevalence across the globe, and its impact upon ICE detention facilities in particular). We now begin our analysis of Petitioners’ claims guided by our previous findings.
i. Legal Standard Courts apply one standard when considering whether to issue interim injunctive relief, regardless of whether a petitioner requests a temporary restraining order (“TRO”) or preliminary injunction. See Ellakkany v. Common Pleas Court of

1

We have previously held that ICE detainees have the requisite standing to bring claims

based upon imminent contraction of COVID-19, and that a habeas petition is the proper vehicle

to do so. Thakker v. Doll, No. 1:20-CV00480, at 5-6 (M.D. Pa. Mar. 31, 2020).

4

Case 2:20-Ccva-s1e0914:290-L-cVvP-0-M05J6H2-JEECJF DNoc. u5m-1e1nt f1il1ed F04ile/1d70/240/07/P2a0gePIDa.g4e515 ofP1a5ge 39 of 95
Montgomery Cnty., 658 Fed.Appx. 25, 27 (3d Cir. July 27, 2016) (applying one standard to a motion for both a TRO and preliminary injunction). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Apple Inc. v. Samsung Electronics Co., 695 F.3d 1370, 1373–74 (Fed. Cir. 2012) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365 (2008)).
The Supreme Court has emphasized that “a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Apotex Inc. v. U.S. Food and Drug Admin., 508 F.Supp.2d 78, 82 (D.D.C. 2007) (“Because interim injunctive relief is an extraordinary form of judicial relief, courts should grant such relief sparingly.”). “Awarding preliminary relief, therefore, is only appropriate ‘upon a clear showing that the plaintiff is entitled to such relief.’” Groupe SEC USA, Inc. v. Euro–Pro Operating LLC, 774 F.3d 192, 197 (3d Cir. 2014) (quoting Winter, 555 U.S. at 22).
5

Case 2:20-Ccva-s1e0914:290-L-cVvP-0-M05J6H2-JEECJF DNoc. u5m-1e1nt f1il1ed F04ile/1d70/240/07/P2a0gePIDa.g4e526 ofP1a5ge 40 of 95
ii. Irreparable Harm COVID-19 is a novel coronavirus that causes “serious, potentially permanent, damage to lung tissue, and can require extensive use of a ventilator. [20-cv-562, Doc. 3, Ex. 2]. The virus can also place greater strain on the heart muscle and can cause damage to the immune system and kidneys. (Id.).” Thakker at 10. Because of these potentially catastrophic complications, COVID-19 has radically transformed our everyday lives in ways previously inconceivable. Most of the county can no longer leave their homes unless absolutely necessary.2 “Large portions of our economy have come to a standstill. Children have been forced to attend school remotely. Workers deemed ‘non-essential’ to our national infrastructure have been told to stay home.” Thakker. at 4. Indeed, the World Health Organization (“WHO”) has declared a global pandemic3 in light of the

2

Sarah Mervosh, Denise Lu, and Vanessa Swales, “See Which States and Cities have Told

Residents to Stay at Home,” NEW YORK TIMES,

https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html (last

accessed April 7, 2020).

3

The World Health Organization (“WHO”) officially declared COVID-19 as global

pandemic on March 11, 2020. See WHO Director-General's opening remarks at the media

briefing on COVID-19 - 11 March 2020, WORLD HEALTH ORGANIZATION, (March 11, 2020),

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

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

6

Case 2:20-Ccva-s1e0914:290-L-cVvP-0-M05J6H2-JEECJF DNoc. u5m-1e1nt f1il1ed F04ile/1d70/240/07/P2a0gePIDa.g4e537 ofP1a5ge 41 of 95

stark realities we now face: over one million people worldwide have contracted COVID-19. Well over sixty thousand have perished as a result.4
Less than one week ago, we found that the threat of a COVID-19 outbreak in the Facilities constituted irreparable harm to substantially similar Petitioners, despite the fact that there were, at that time, no confirmed cases of COVID-19 in the Facilities. Thakker, at 7-19.5 In so doing, we noted that “it is not a matter of if COVID-19 will enter Pennsylvania prisons, but when it is finally detected therein.” Id. at 8 (emphasis in original).
We have, unfortunately, been proven correct in this regard. As of the time of this writing, the Pike County Correctional Facility has officially reported that four ICE detainees housed therein have tested positive for COVID-19.6 Four Pike County Correctional employees have also tested positive. (Doc. 6, Ex. 3). An additional detainee at York County Prison has also tested positive. See ICE Latest Statement. And we can only assume that these numbers may well be much higher

4

See Coronavirus Disease (COVID-19) Pandemic, WORLD HEALTH ORGANIZATION,

https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last accessed April 7, 2020).

5

In Thakker, we considered the potential harm faced by ICE detainees in county prisons

located in York, Pike, and Clinton Counties, finding that there was a high likelihood that

Petitioners would face severe complications, and even death, should they contract COVID-19 in

the Facilities—which we found to be a likely outcome of their continued detention. Thakker 7-

19. Here, we again consider the likelihood of irreparable harm in two of those same facilities:

those in York and Pike Counties.

6

ICE Latest Statement, ICE GUIDANCE ON COVID-19,

https://www.ice.gov/coronavirus#wcm-survey-target-id (last accessed April 7, 2020).

7

Case 2:20-Ccva-s1e0914:290-L-cVvP-0-M05J6H2-JEECJF DNoc. u5m-1e1nt f1il1ed F04ile/1d70/240/07/P2a0gePIDa.g4e548 ofP1a5ge 42 of 95
than reported—we have allegations before us that requests by detainees for COVID-19 tests have not been granted, despite explicit knowledge that the virus has entered the Facilities. (Doc. 6, Ex. 7).
We also have further declarations that no effective containment measures have been put into place to protect Petitioners.7 Officers and medical staff, who regularly leave the confines of the Facilities and have ample opportunities to contract the virus elsewhere, do not reliably wear gloves and masks when interacting with inmates. (Doc. 3, Ex. 17; Doc. 3, Ex. 16, Doc. 3, Ex. 4; Doc. 3, Ex. 8; Doc. 3. Ex. 23). Temperature checks are infrequently conducted, even among detainees who had close contact with others who have since tested positive. (Doc. 3, Ex. 23). The cell blocks which housed those who test positive are not thoroughly evacuated and cleaned to prevent the spread. (Doc. 3, Ex. 4). We even have reports that detainees exhibiting COVID-like symptoms are remaining in general housing for days, and that once they are quarantined, no testing is being provided to those who remain. (Doc. 3, Ex. 8).
We have previously discussed in great detail how the incursion of COVID19 into ICE detention facilities could result in catastrophic outcomes, particularly in light of the grim conditions present in these specific Facilities. See Thakker at

7

We have previously discussed the overcrowding and unsanitary conditions present at

these Facilities. See Thakker at 14-15.

8

Case 2:20-Ccva-s1e0914:290-L-cVvP-0-M05J6H2-JEECJF DNoc. u5m-1e1nt f1il1ed F04ile/1d70/240/07/P2a0gePIDa.g4e559 ofP1a5ge 43 of 95
14-15. It now seems that our worst fears have been realized—COVID-19 is spreading, and not nearly enough is being done to combat it. We cannot allow the Petitioners before us, all at heightened risk for severe complications from COVID19, to bear the consequences of ICE’s inaction. We therefore find that irreparable harm faces the Petitioners before us should they contract COVID-19.8
iii. Likelihood of Success on the Merits Petitioners argue that they are “likely to establish a due process violation through conditions of confinement that expose them to the serious risks associated with COVID-19.” (Doc. 6 at 13). For the reasons that follow, we agree. As we previously stated in Thakker, Petitioners must show that their conditions of confinement “amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). “To determine whether challenged conditions of confinement amount to punishment, this Court determines whether a condition of confinement is reasonably related to a legitimate governmental objective; if it is not, we may infer ‘that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.’” E. D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019) (quoting Hubbard v. Taylor, 538 F.3d

8

Many of our sister courts across the nation have agreed with our conclusion. See Thakker

at 16-19.

9

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M5J6H2-JEJCFDNooc.u5m-1e1nt 1fi1ledF0il4e/d170/42/007/2P0agePIaDg.4e5160 oPf 1a5ge 44 of 95

229, 232 (3d Cir. 2008)). We therefore ask whether the conditions imposed are rationally related to a legitimate government purpose. They are not.
We previously held, considering the present living conditions present at the same detention Facilities now at issue here, that, “we can see no rational relationship between a legitimate government objective and keeping Petitioners detained in unsanitary, tightly-packed environments—doing so would constitute a punishment to Petitioners.” Thakker at 20-21. There is no indication that there has been an improvement in conditions at the Facilities. Indeed, all indications point towards the contrary. There are now individuals who have tested positive at both Facilities,9 and we have further accusations that those situations are not being properly contained.10 “Considering, therefore, the grave consequences that will result from an outbreak of COVID-19, particularly to the high-risk Petitioners in this case, we cannot countenance physical detention in such tightly-confined, unhygienic spaces.” Thakker at 21.
We further note that Respondents previously proffered legitimate government objective holds no greater sway here than it did in Thakker. The Respondents had

9

ICE Latest Statement, ICE GUIDANCE ON COVID-19,

https://www.ice.gov/coronavirus#wcm-survey-target-id (last accessed April 7, 2020).

10

See Doc. 3, Ex. 17; Doc. 3, Ex. 16, Doc. 3, Ex. 4; Doc. 3, Ex. 8; Doc. 3. Ex. 23 (alleging

that proper medical protective equipment is not being used by Facility staff, that temperature

checks and COVID-19 testing are not being performed on detainees in close contact with the

virus, and that proper cleaning of housing blocks is not taking place).

10

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M5J6H2-JEJCFDNooc.u5m-1e1nt 1fi1ledF0il4e/d170/42/007/2P0agePIaDg.4e5171 oPf 1a5ge 45 of 95
maintained that “preventing detained aliens from absconding and ensuring that they
appear for removal proceedings is a legitimate governmental objective.” (Thakker,
20-cv-480, Doc. 35 at 38). However, “we note that ICE has a plethora of means
other than physical detention at their disposal by which they may monitor civil
detainees and ensure that they are present at removal proceedings, including remote
monitoring and routine check-ins. Physical detention itself will place a burden on
community healthcare systems and will needlessly endanger Petitioners, prison
employees, and the greater community. We cannot see the rational basis of such a
risk.” Thakker at 21-22. We therefore find that Petitioners are likely to succeed on
the merits of their due process “conditions of confinement” claim. 11
11 As previously discussed in Thakker, we also think it likely Petitioners will prevail under the more exacting Eighth Amendment standards as well. To succeed on an Eighth Amendment conditions of confinement claim, the Petitioners must show: (1) the deprivation alleged must objectively be “sufficiently serious,” and (2) the “prison official must have a sufficiently culpable state of mind,” such as deliberate indifference to the prisoner’s health or safety. See Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “COVID-19 has been shown to spread in the matter of a single day and would well prove deadly for Petitioners. Such a risk is objectively ‘sufficiently serious.’” Thakker at n.15. Furthermore, we note that authorities can be “deliberately indifferent to an inmate’s current health problems” when they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993). There is no requirement that Petitioners show that “they actually suffered from serious injuries” to succeed on this claim. See Helling, 509 U.S. at 33. “The current measures undertaken by ICE, including ‘cohorting’ detainees, are patently ineffective in preventing the spread of COVID-19,” as is now evidenced by multiple positive COVID-19 tests in both Facilities. Thakker at n.15.
11

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M5J6H2-JEJCFDNooc.u5m-1e1nt 1fi1ledF0il4e/d170/42/007/2P0agePIaDg.4e5182 oPf 1a5ge 46 of 95
iv. Balancing of the Equities and Public Interest The equities at issue and public interest “weigh heavily in Petitioners’ favor.” Thakker at 23. We have already noted that Petitioners face a very real risk of serious COVID-19 complications. We also find that Respondents face very little potential harm from Petitioner’s immediate release. While we “agree that preventing Petitioners from absconding. . .is important, we note that Petitioners’ failure to appear at future immigration proceedings would carry grave consequences of which Petitioners are surely aware. Further, it is our view that the risk of absconding is low, given the current restricted state of travel in the United States and the world during the COVID-19 pandemic.” Id. Finally, the public interest strongly encourages Petitioners’ release. “As mentioned, Petitioners are being detained for civil violations of this country’s immigration laws. Given the highly unusual and unique circumstances posed by the COVID-19 pandemic and ensuing crisis, ‘the continued detention of aging or ill civil detainees does not serve the public’s interest.’” Thakker at 23 (citing Basank, 2020 WL 1481503, *6; see also Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (opining that “the design and operation of detention settings promotes the spread of communicable diseases such as COVID-19”); Castillo v. Barr, CV-20-00605-TJH (C.D. Cal. 2020)). Releasing these high-risk Petitioners, and therefore providing more space for effective social
12

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M5J6H2-JEJCFDNooc.u5m-1e1nt 1fi1ledF0il4e/d170/42/007/2P0agePIaDg.4e5193 oPf 1a5ge 47 of 95
distancing within the Facilities, will clearly benefit the surrounding areas. Rural hospitals will be less overwhelmed by potential detainee COVID-19 cases and there will be less of a risk that Facilities staff will carry the virus into their homes and communities. “Efforts to stop the spread of COVID-19 and promote public health are clearly in the public’s best interest, and the release of these fragile Petitioners from confinement is one step further in a positive direction.” Thakker at 23-24.
III. CONCLUSION “In times such as these, we must acknowledge that the status quo of a mere
few weeks ago no longer applies. Our world has been altered with lightning speed, and the results are both unprecedented and ghastly. We now face a global pandemic in which the actions of each individual can have a drastic impact on an entire community. The choices we now make must reflect this new reality.” Thakker at 24.
We have before us clear evidence that the protective measures in place in the York and Pike County prisons are not working. We can only expect the number of positive COVID-19 cases to increase in the coming days and weeks, and we cannot leave the most fragile among us to face that growing danger unprotected.
We are mindful that judicial decisions such as these are both controversial and difficult for the public to absorb. It is all too easy for some to embrace the notion that individuals such as Petitioners should be denied relief simply because they lack citizenship in this country. However, Article III Courts do not operate according to
13

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M5J6H2-JEJCFDNooc.u5m-1e1nt 1fi1ledF0il4e/d170/42/007/2P0agePIaDg.4e6104 oPf 1a5ge 48 of 95
polls or the popular will, but rather to do justice and to rule according to the facts and the law.
Based on the foregoing, we shall grant the requested temporary restraining order. Respondents, and the York County Prison and Pike County Correctional Facility shall be ordered to immediately release the Petitioners today on their own recognizance without fail.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 1. The Petitioners’ Motion for Temporary Restraining Order, (Doc. 5), is GRANTED. 2. Respondents, and the York County Prison and Pike County Correctional Facility SHALL IMMEDIATELY RELEASE the Petitioners TODAY on their own recognizance. 3. Petitioners will SELF-QUARANTINE in their respective homes for FOURTEEN (14) DAYS from the date of release. 4. This TRO will expire on April 20, 2020 at 5:00 p.m. 5. No later than noon on April 13, 2020, the Respondents shall SHOW CAUSE why the TRO should not be converted into a preliminary injunction. 6. The Petitioners may file a response before the opening of business on April 16, 2020.
14

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M5J6H2-JEJCFDNooc.u5m-1e1nt 1fi1ledF0il4e/d170/42/007/2P0agePIaDg.4e6115 oPf 1a5ge 49 of 95
s/ John E. Jones III John E. Jones III United States District Judge
15

Case 2:2C0-acsve-110:92409-c-Lv-V0P0-3M0J8H-GBEDC-FSNNo.D5o-c1u1mefinletd2704/F1i7le/2d003/P2a6g/2e0ID.P46a2ge 1Poafg3e 50 of 95

Case 2:2C0-acsve-110:92409-c-Lv-V0P0-3M0J8H-GBEDC-FSNNo.D5o-c1u1mefinletd2704/F1i7le/2d003/P2a6g/2e0ID.P46a3ge 2Poafg3e 51 of 95

Case 2:2C0-acsve-110:92409-c-Lv-V0P0-3M0J8H-GBEDC-FSNNo.D5o-c1u1mefinletd2704/F1i7le/2d003/P2a6g/2e0ID.P46a4ge 3Poafg3e 52 of 95

CasCe a2s:2e02-c:2v0-1-c0v9-4093-4L8V1P-J-MJVH DEoCcuFmNeon.t52-411 Fiflieledd0044/0/197/2/200 PPagaege1IDo.f41685PaPgaegIDe:58358of 95

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

____________________________________

:

RAFAEL L.O., et al.,

:

:

Petitioner,

:

:

v.

:

:

JOHN TSOUKARIS, et al.,

:

:

Respondent.

:

____________________________________:

Civil Action No. 20-3481 (JMV) OPINION

VAZQUEZ, District Judge:

This matter originated with a Verified Petition for Writ of Habeas Corpus and Complaint. D.E. 1. Presently pending before the Court is the motion of Petitioners’ Rafael L.O.,1 Adrian E.

G.G., and Javier S.M., (“Petitioners”) for a temporary restraining order (“TRO”), immediate

release, and/or order to show cause. D.E. No. 5. For the reasons detailed below, the Court will

grant the TRO and order Petitioners’ release subject to specific conditions. The filing initially

included two additional Petitioners, Victor M.L. and Michaell A.G., who have since been released

by the Department of Homeland Security, Immigration and Customs Enforcement (“DHS/ICE”).

Because those two Petitioners have been released, their motion is dismissed without prejudice.

1 Petitioners are identified herein only by their first name and the first initials of their surnames in order to address certain privacy concerns associated with § 2241 immigration cases. This manner of identification comports with recommendations made by the Judicial Conference of the United States’ Committee on Court Administration and Case Management.

CasCe a2s:2e02-c:2v0-1-c0v9-4093-4L8V1P-J-MJVH DEoCcuFmNeon.t52-411 Fiflieledd0044/0/197/2/200 PPagaege2IDo.f41686PaPgaegIDe:58459of 95

I. Background Petitioners are immigration detainees being held by ICE at the Essex County Correctional Facility (“ECCF”) in Newark, New Jersey. The instant motion was filed in the wake of the ongoing COVID-19 pandemic,2 that has been reported to have been contracted by both ECCF personnel and inmates.3 Each Petitioner submits that he is living with a medical condition that puts him in danger of severe illness or death should he contract COVID-19. Rafael L.O., who is twenty-seven years old, submits that he has asthma and bi-polar disorder. D.E. No. 1 at 23. Adrian E. G.G., who is forty-six years old, submits that he lives with schizophrenia, diabetes, high cholesterol, and high blood pressure. Id. at 25. Finally, Javier S.M., who is fifty-one years old, indicates that he has high blood pressure, high cholesterol, signs of early congestive heart failure, untreated obstructive sleep apnea, and pre-diabetes. Id. at 29. Respondents do not contest Petitioners’ medical conditions. Instead, Respondents argue that ECCF has taken reasonable precautions and that Petitioners’ criminal histories and/or pending criminal charges countenance against release. D.E. 17 at 7-10. Respondents indicate that Rafael L.O. has a 2019 conviction for felony drug offenses and possession of weapon (an air pistol) as

2 Covid-19 is an abbreviation of the coronavirus disease 2019, a respiratory illness that can spread

from person to person, that was declared a pandemic by the World Health Organization

(“W.H.O.”) on March 11, 2020. See Centers for Disease Control and Prevention Coronavirus

Disease 2019 Frequently Asked Questions, https://www.cdc.gov/coronavirus/2019-

ncov/faq.html#covid19-basics (last visited Apr. 7, 2020); see also William Wan, WHO declares a

pandemic

of

coronavirus

disease

covid-19,

Washington

Post,

https://www.washingtonpost.com/health/2020/03/11/who-declares-pandemic-coronavirus-

disease-covid-19/ (last visited April 7, 2020).

3 Monsy Alvarado, Second ICE detainee in New Jersey tests positive for coronavirus, Northjersey.com, https://www.northjersey.com/story/news/new-jersey/2020/03/26/coronavirusnj-second-ice-detainee-tests-positive-covid-19/2916525001/ (last visited April 7, 2020).

2

CasCe a2s:2e02-c:2v0-1-c0v9-4093-4L8V1P-J-MJVH DEoCcuFmNeon.t52-411 Fiflieledd0044/0/197/2/200 PPagaege3IDo.f41687PaPgaegIDe:58560of 95
well as pending felony drug charges from 2018. Id. at 7. Javier S.M., Respondents note, has
pending state felony charges for criminal sexual contact and endangering/sexual contact. Id. at 8.
It appears that Javier S.M. was released on his own recognizance by the state criminal court,
although Respondents indicate that the state judge may have known that Javier S.M. was to be
taken into ICE custody. Adrien E. G.G. has the longest criminal history. Respondents point to
numerous convictions between 2013 and 2017 for illegal re-entry into the United States. Id. at 9-
10. Adrien E. G.G. also has two convictions for drug possession and a 2008 conviction for
assault. Id.
A. COVID-19
The COVID-19 pandemic is at the heart of this case. Judge John E. Jones III, in a
thoughtful opinion, described the situation as follows:
In a matter of weeks, the novel coronavirus COVID-19 has rampaged across the globe, altering the landscape of everyday American life in ways previously unimaginable. Large portions of our economy have come to a standstill. Children have been forced to attend school remotely. Workers deemed ‘non-essential’ to our national infrastructure have been told to stay home. Indeed, we now live our lives by terms we had never heard of a month ago—we are “social distancing” and “flattening the curve” to combat a global pandemic that has, as of the date of this writing, infected 719,700 people worldwide and killed more than 33,673. Each day these statistics move exponentially higher.
Thakker v. Doll, Civ. Docket No. 20-cv-480, 2020 WL 1671563, *2, __ F. Supp. 3d __ (M.D. Pa.
March 31, 2020) (footnotes omitted). Judge Jones accurately pointed to the swift growth of cases.
From the date of his opinion (March 31, 2020) to April 7, 2020, the number of worldwide cases
and deaths had risen from 719,700 and 33,673 to 1,282,931 and 72,774.4
4 Coronavirus Disease (COVID-19) Pandemic, WORLD HEALTH ORGANIZATION, https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last visited April 7, 2020).
3

CasCe a2s:2e02-c:2v0-1-c0v9-4093-4L8V1P-J-MJVH DEoCcuFmNeon.t52-411 Fiflieledd0044/0/197/2/200 PPagaege4IDo.f41688PaPgaegIDe:58661of 95

New Jersey has been particularly hard hit, with the northern part of the state bearing the

initial brunt. As of April 7, 2020, New Jersey had 44,416 cases and 1,232 deaths. COVID-19

Information Hub, STATE OF NEW JERSEY, https://covid19.nj.gov/ (last visited April 7, 2020).

The total number of cases and deaths for Bergen County, Essex County, and Hudson County,

respectively, were 7,533/263, 5,078/232, and 4,949/95 deaths. Id. New Jersey has taken

numerous steps, such as the Governor’s stay-at-home order on March 21, 2020, to combat the

virus. In addition, New Jersey has closed schools indefinitely and closed beaches, state parks,

and county parks.5

COVID-19 is a type of highly contagious novel coronavirus that is thought to be “spreading

easily and sustainably between people.” How Coronavirus Spreads, CENTERS FOR DISEASE

CONTROL

AND

PREVENTION,

https://www.cdc.gov/coronavirus/2019-

ncov/prepare/transmission.html (“How Coronavirus Spreads”) (last visited April 8, 2020). The

National Institutes of Health reports that the virus “is stable for several hours to days in aerosols

and on surfaces[.]”6 COVID-19 is “spread mainly from person-to-person.” How Coronavirus

Spreads. This person-to-person spread can occur (1) between persons who are in close contact,

meaning within six feet, and (2) by respiratory droplets when an infected person sneezes, coughs,

or talks. Id. The virus can also be spread by infected persons who are not showing symptoms.

Id.

5 New Jersey closes state parks, state forests and county parks as more than 200 new COVID-19 deaths reported, 6abc, https://6abc.com/covid19-cases-us-coronavirus-symptoms/6083512/ (last visited April 7, 2020).
6 New Coronavirus Stable for Hours on Surfaces, NATIONAL INSTITUTE OF HEALTH, https://www.nih.gov/news-events/news-releases/new-coronavirus-stable-hours-surfaces (last visited April 8, 2020)
4

CasCe a2s:2e02-c:2v0-1-c0v9-4093-4L8V1P-J-MJVH DEoCcuFmNeon.t52-411 Fiflieledd0044/0/197/2/200 PPagaege5IDo.f41689PaPgaegIDe:58762of 95
Symptoms of COVID-19 can be mild. However, the effects of COVID-19 can be drastically more severe in older individuals or those with certain medical conditions, including persons with asthma, lung disease, heart diseases, diabetes, chronic kidney disease, liver disease or those who are immunocompromised.7 Besides death, COVID-19 can cause serious, potentially permanent, damage to lung tissue, and can require extensive use of a ventilator. Early evidence suggests that the virus “can damage lung tissue causing a 20 to 30 percent decrease in lung function[.]” D.E. 1 at ¶ 29 (citation omitted). In addition, complications from the virus can manifest rapidly. Id. (citation omitted). There is currently no vaccine for COVID-19, nor are there known, clinically-tested therapeutic treatments. Id. at ¶ 30. To combat the virus, health officials have emphasized education, social distancing (i.e. staying at least 6 feet apart), and improved hygiene. Id. (citation omitted).
B. ECCF County jails were not designed with pandemics in mind. To the contrary, they were made
to house persons in relatively close contact. In a densely populated area, like Essex County, New Jersey, jails are constructed to handle more persons, whether they be detainees or inmates. The CDC has warned that the risk of exposure may increase in crowded, closed-in settings with little air circulation if the crowd contains persons who are infected. D.E. 1 at ¶ 32 (citation omitted). COVID-19 represents a threat to detainees, inmates, officers, officials, staff, and all others who enter the jail, such as vendors.
Petitioners cite extensively to a March 19, 2020, letter from two qualified physicians to
7 People Who Are at Higher Risk of Severe Illness, CENTERS FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-athigher-risk.html (last accessed April 8, 2020).
5

CasCe a2s:2e02-c:2v0-1-c0v9-4093-4L8V1P-J-MJVH DEoCcuFmNeon.t52-411 Fiflieledd0044/0/197/2/200 PPagaege6IDo.f41780PaPgaegIDe:58863of 95
members of Congress. D.E. 1-14. Both physicians had “expertise in medical care in detention settings,” and both served as medical subject matter experts for the Department of Homeland Security’s Office of Civil Rights and Civil Liberties.” Id. at 1-2. The letter addressed the “imminent risk to the health and safety of immigrant detainees[.]” Id. at 3. The physicians stated that “social distancing is essential to slow the spread of the coronavirus to minimize the risk of infection.” Id. at 4. The doctors stressed that doing so critically reduces the risk of overwhelming treatment facilities.8 Id. As an example, the physicians pointed out that local hospitals have limited ventilators, and as the hospitals treat more COVID-19 patients, they run the real risk of running short of the life-saving equipment – not only for other virus patients but also for patients with other critical illnesses, such as heart attacks. Id. The physicians indicated that three areas of actions were needed: (1) procedures for screening, testing, isolation, and quarantine; (2) limiting the transport and transfer of immigration detainees; and (3) using alternatives to detention to enable as much social distancing as possible. Id. at 5. To this end, the doctors emphasized that “it is essential to consider releasing all detainees who do not pose an immediate risk to public safety.” Id. (emphasis in original). At a minimum, the doctors added, ICE should consider releasing all detainees in high risk medical groups. Id. at 5-6.
In response to the pandemic, ICE has taken affirmative steps to lessen the risk of exposure. ICE Guidance on COVID-19, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, https://www.ice.gov/coronavirus (last visited on April 8, 2020). For example, ICE temporarily suspended all social visitation at detention facilities. Id. ICE also released approximately 160
8 Petitioners point out that New Jersey officials have projected a potential shortage of 123,000 hospital beds in the coming weeks. D.E. 1 at ¶ 27 (citation omitted).
6

CasCe a2s:2e02-c:2v0-1-c0v9-4093-4L8V1P-J-MJVH DEoCcuFmNeon.t52-411 Fiflieledd0044/0/197/2/200 PPagaege7IDo.f41781PaPgaegIDe:58964of 95
individuals who were over the age of 60 or pregnant. Id. ICE further instituted screening guidance for new detainees and indicates that it is testing detainees for COVID-19 as per CDC guidance. Id.
As of the filing of Petitioner’s case, four employees and one ICE detainee had contracted COVID-19. D.E. 1 at ¶ 2. Given the incubation period, Petitioners indicate that it is likely that the ICE detainee contracted the virus while at the ECCF. Id. at ¶ 38. Prior to the current pandemic, Petitioners noted that DHS’s Office of Inspector General (“OIG”) “identified serious issues relating safety, security, and environmental health” at ECCF. Id. at 41 (citation omitted). The OIG concluded that based on the conditions observed, “ICE cannot ensure detainee health at the [ECCF].” Id. at 41.
Petitioners also provide their view of current conditions at the ECCF, relying on a declaration of Rosa Santana, a Program Director at First Friends of New Jersey and New York. D.E. 1-9. Santana indicates, based on her personal experience, that in the “dorms” area of ECCF, “approximately 70 detainees sleep, eat, and spend the vast majority of their time . . . in one room together[.] . . . They all share one bathroom with just a few toilets, sinks and showers.” Id. at ¶ 7. In the “pods” area of ECCF, two detainees share a room to sleep, but “approximately 125 detainees share a single common space” where they eat and socialize. Id. at ¶ 8. Santana adds that these detainees share a bathroom with four showers, but often one or two of the showers are not working. Id. Santana and her organization hear constant complaints about the “lack of access to medical care and the quality of care that is received,” that medical treatment is denied, or that detainees wait an inordinate amount of time in response to medical requests. Id. at ¶¶ 9, 12. Santana is also aware of “unsanitary and unhygienic conditions at the ECCF,” such as maggots in the sink or broken boilers. Id. at ¶ 10. Detainees also report that they lack sufficient soap, hand sanitizer,
7

CasCe a2s:2e02-c:2v0-1-c0v9-4093-4L8V1P-J-MJVH DEoCcuFmNeon.t52-411 Fiflieledd0044/0/197/2/200 PPagaege8IDo.f41782PaPgaegIDe:68065of 95
and cleaning supplies; if they run out of money, the detainees cannot buy new soap from the commissary. Id. at ¶ 13. As for a detainee who tested positive for COVID-19, Santana knows that the detainee was in a setting with approximately 40-50 other detainees. Id. at ¶ 17. Santana has also been receiving recent calls from detainees who are worried that others housed with them are infected as they have sore throats, coughs, and fevers. Id. at 20.
Respondents submitted a declaration from Alfaro Ortiz, the Director of the ECCF. D.E. 17-1. On the date of Ortiz’s declaration, April 6, 2020, two ICE detainees had tested positive for COVID-19 as had seven inmates in a different building, ten members of the ECCF correctional staff, and one nurse. Id. at ¶ 22. Ortiz details the efforts of ECCF to deal with the virus. Ortiz reports that ECCF is currently at seventy-five percent of its capacity and that dorms that were designed to hold sixty detainees now house a maximum of forty-eight. Id. at ¶¶ 4-5. He states that ECCF has provide informational hand-outs as to COVID-19 and that detainees have space to “sit at least six feet apart.” Id. at ¶ 6. Health care at ECCF is administered by CFG Health Systems, with a physician on-site for sixteen hours a day (and available twenty-four hours) as well as nurse practitioner and two RNs and LPNs at all times. Id. at 9-10. New detainees are “screened for disabilities upon admission and their temperatures are checked.” Id. at ¶ 8. ECCF is able to re-circulate air within the facility every four hours. Id. at ¶ 13. Among other measures instituted in response to COVID-19, ECCF educates detainees as to the “importance of hand washing and best practices to prevent the spread of COVID-19” and provides detainees daily access to sick call. Id. at ¶ 15. ECCF also sanitizes its kitchen hourly, hired additional cleaning staff, and implemented health screening for officers. Id. New detainees are quarantined for 14 days. Id. If a detainee exhibits COVID-19 symptoms, he or she is medically evaluated and provided a surgical mask. Id. at ¶ 17. Detainees with moderate to severe symptoms are
8

CasCe a2s:2e02-c:2v0-1-c0v9-4093-4L8V1P-J-MJVH DEoCcuFmNeon.t52-411 Fiflieledd0044/0/197/2/200 PPagaege9IDo.f41783PaPgaegIDe:68166of 95
immediately taken to University Hospital, while those with mild symptoms are quarantined. Id. at ¶ 18. As of April 6, ECCF had 85 inmates and detainees in quarantine. Id. at 19. Detainees who have had a known exposure to COVID-19 but who are asymptomatic are “cohorted,” meaning that they are placed with other similar individuals for fourteen days. Id. at ¶ 20.
Petitioners assert numerous counts. D.E. 1. As pertinent here, Petitioners assert a violation of substantive due process for failure to reasonable provide safety and protect from harm. Id. at 38.
II. LEGAL STANDARD The standard for granting a temporary restraining order is the same as that for a preliminary injunction. Injunctions and restraining orders are governed by Federal Rule of Civil Procedure 65 and Local Civil Rule 65.1. Injunctive relief may only be granted when a party demonstrates that he has a reasonable probability of success on the merits, he will suffer immediate and irreparable harm if the injunction does not issue, the grant of preliminary relief will not result in greater harm to the nonmoving party, and the injunctive relief is in the public interest. New Jersey Retail Merchants Ass’n v. Sidamon-Eristoff, 669 F.3d 374, 385-86 (3d Cir. 2012) (citing Crissman v. Dower Down Entm’t Inc., 239 F. 3d 357, 364 (3d Cir. 2001). As to the Court’s authority to grant release on a writ of habeas corpus, Petitioner’s rely extensively on the Third Circuit’s decision in Lucas v. Hadden, 790 F.2d 365 (3d Cir. 1986). Lucas concerned a state prisoner’s petition pursuant to 28 U.S.C. § 2254 rather than a civil immigration detainee matter. Id. at 365-66. The court in Lucas determined that the “extraordinary circumstances” standard controlled in determining whether “bail may be granted to a habeas petitioner prior to a ruling on the merits of the petition.” Id. at 367. As an example of such circumstances, the Lucas court pointed to Johnston v. Marsh, 227 F.2d 528 (3d Cir. 1955),
9

CasCea2s:e202-:c2v0--1c0v9-04394-L8V1-PJ-MMVJHDoEcCuFmNenot. 254-11Filfeilded040/40/91/72/020 PaPgaeg1e0IDo.4f 7148 PaPgaegIeD:6826o7f 95
in which the district judge had ordered a state inmate released to enter a hospital because the inmate was extremely ill. Id. at 366-67. Yet, the court in Lucas court continued, it was not suggesting that a petitioner’s poor health would be the only situation that would meet the extraordinary circumstances standard. Id. at 367.
Like injunctive relief in general, granting bail to a habeas petitioner is an extraordinary remedy. See Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992) (indicating that a court may only grant release pending a disposition of federal habeas claims when the petitioner has raised “substantial constitutional claims upon which he has a high probability of success, and ... when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective”) (citation omitted)); see also In re Souels, 688 Fed. App’x 134, 135-36 (3d Cir. 2017).
III. DISCUSSION The Court finds that Petitioners have established a reasonable likelihood of success on the merits and similarly met the extraordinary circumstances standard. This determination also addresses Respondents’ threshold argument that Petitioners lack standing. D.E. 17 at 24. Respondents argue that “Petitioners do not allege that they have contracted COVID-19, have been exposed to anyone with COVID-19 or that they have suffered any adverse outcomes from the spread of COVID-19.” Id. “Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’” Lance v. Coffman, 549 U.S. 437, 439 (2007). Standing to sue is a “[c]omponent of the case-or-controversy” requirement. Id. Thus, a court must dismiss a case for lack of subject matter jurisdiction if a plaintiff lacks Article III standing. Finkelman v. Nat'l Football League, 810 F.3d 187, 195 (3d Cir. 2016). To establish Article III standing, a plaintiff
10

CasCea2s:e202-:c2v0--1c0v9-04394-L8V1-PJ-MMVJHDoEcCuFmNenot. 254-11Filfeilded040/40/91/72/020 PaPgaeg1e1IDo.4f 7158 PaPgaegIeD:6836o8f 95
“must demonstrate ‘(1) an injury-in-fact, (2) a sufficient causal connection between the injury and
the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable
decision.”’ Id. at 193 (quoting Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353, 358–59 (3d
Cir. 2015) (internal quotation marks omitted and punctuation modified)). The first element, an
injury-in-fact, requires that a plaintiff show “ ‘the invasion of a concrete and particularized legally
protected interest’ resulting in harm ‘that is actual or imminent, not conjectural or hypothetical.’ ”
Id. (quoting Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 278 (3d Cir. 2014)). Moreover, a
plaintiff “must clearly and specifically set forth facts sufficient to satisfy . . .standing” as “a federal
court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of
standing.” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990).
The Court finds that Petitioners have standing in light of the Supreme Court’s decision in
Helling v. McKinney, 509 U.S. 25 (1993). In Helling, a prisoner alleged that his Eighth
Amendment rights had been violated because he had been exposed to environmental tobacco
smoke in prison. Id. at 28. The Supreme Court ruled as follows:
We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate's current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year. In Hutto v. Finney, 437 U.S. 678, 682, we noted that inmates in punitive isolation were crowded into cells and that some of them had infectious maladies such as hepatitis and venereal disease. This was one of the prison conditions for which the Eighth Amendment required a remedy, even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed. We would think that a prison inmate also could successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery. Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.
11

CasCea2s:e202-:c2v0--1c0v9-04394-L8V1-PJ-MMVJHDoEcCuFmNenot. 254-11Filfeilded040/40/91/72/020 PaPgaeg1e2IDo.4f 7168 PaPgaegIeD:6846o9f 95
That the Eighth Amendment protects against future harm to inmates is not a novel proposition. The Amendment, as we have said, requires that inmates be furnished with the basic human needs, one of which is “reasonable safety.” DeShaney[ v. Winnebago County
Dept. of Social Services, 489 U.S. 189, 200 (1989)]. It is “cruel and
unusual punishment to hold convicted criminals in unsafe conditions.” Youngberg v. Romeo, 457 U.S. 307, 315–316 (1982). It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them. The Courts of Appeals have plainly recognized that a remedy for unsafe conditions need not await a tragic event. Two of them were cited with approval in Rhodes v. Chapman, 452 U.S. 337, 352, n. 17 (1981). Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974), held that inmates were entitled to relief under the Eighth Amendment when they proved threats to personal safety from exposed electrical wiring, deficient firefighting measures, and the mingling of inmates with serious contagious diseases with other prison inmates. Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir. 1980), stated that a prisoner need not wait until he is actually assaulted before obtaining relief. . . . We thus reject petitioners' central thesis that only deliberate indifference to current serious health problems of inmates is actionable under the Eighth Amendment.
Id. at 33-34 (emphases added). Although decided in the context of an Eighth Amendment claim,
the quoted language applies with equal force here. Petitioners do not need to actually show that
they have COVID-19 to establish standing.
To succeed on a Fifth Amendment due process claim, Petitioners must show that their
conditions of confinement “amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520,
535 (1979). The Third Circuit has articulated the following relevant standards:
To determine whether challenged conditions of confinement amount to punishment, this Court determines whether a condition of confinement is reasonably related to a legitimate governmental objective; if it is not, we may infer “that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.”
12

CasCea2s:e202-:c2v0--1c0v9-04394-L8V1-PJ-MMVJHDoEcCuFmNenot. 254-11Filfeilded040/40/91/72/020 PaPgaeg1e3IDo.4f 7178 PaPgaegIeD:6857o0f 95
E. D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019) (quoting Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008)). As a result, the Court must ascertain whether the confinement conditions serve a legitimate purpose and whether the conditions are rationally related to that legitimate purpose. Hubbard 538 F.3d at 232.
District Courts have reached different conclusions when conducting this inquiry in the context of the current pandemic. In Dawson v. Asher, Case No. C20-0409, 2020 WL 1304557 (W.D. Wash. March 19, 2020), Judge James L. Robart found that the immigration detainees did not face improper punishment. Id. at *2. Judge Robart explained that the petitioner’s detention was reasonably related to a legitimate governmental objective because there was no evidence that the respondents intended to punish the petitioners, respondents had a legitimate governmental objective in preventing detained aliens from absconding and ensuring their appearance at removal proceedings, and the petitioners’ confinement did not appear excessive in relation to the legitimate objective. Id.
Judge Jones in Thakker reached a different conclusion. Thakker, 2020 WL 1671563, *8. Judge Jones noted that an express intent to punish was not necessary and then found that the detention in question did not bear a rational relationship to a legitimate government objective. Id. Judge Jones reasoned that housing immigration detainees in close proximity and in unsanitary conditions, in light of the pandemic, did not meet a legitimate governmental objective. Id. Judge Jones indicated that preventing aliens from absconding would constitute a legitimate governmental aim but this objective was deeply weakened in light of COVID-19, particularly when ICE had many other options to monitor civil detainees. Id.
The Court agrees with the analysis in Thakker. The Court does not find that Respondents have an express intent to punish Petitioners, but also finds that such intent is not a necessary
13

CasCea2s:e202-:c2v0--1c0v9-04394-L8V1-PJ-MMVJHDoEcCuFmNenot. 254-11Filfeilded040/40/91/72/020 PaPgaeg1e4IDo.4f 718 PaPgaegIeD:6867o1f 95
prerequisite. In addition, the Court would – in normal circumstances – agree with the legitimate governmental objective analysis espoused in Dawson. But these are not normal times, and context (or factual reality) is important. To use an extreme hypothetical, consider if civil detainees were being housed in a facility that was in the direct path of a hurricane and that the facility was unlikely to withstand the force of the storm. The government would still have a legitimate governmental interest in ensuring that the detainees appeared for immigration court – but the government would not have a legitimate interest in housing the detainees in that particular facility during the hurricane. COVID-19, and its associated risks, is the difference maker – it changes the equation in evaluating the government’s legitimate objectives. See United States v. Martin, No. 19 Cr. 140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“[T]he Due Process Clauses of the Fifth or Fourteenth Amendments, for federal and state pretrial detainees, respectively, may well be implicated if defendants awaiting trial can demonstrate that they are being subjected to conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness.”).
Petitioners’ medical maladies put them in a vulnerable population as to COVID-19. If they do become infected, not only will they be in greater physical jeopardy but they also would put greater pressure on limited medical resources. If the Court credits Rosa Santana’s declaration, ECCF is clearly an unsafe environment. But even viewing Director Ortiz’s statements, obvious gaps exist. ICE detainees are still housed together, up to forty-eight in a room. While Director Ortiz indicates that ECCF has increased its cleaning capability, notably absent from his declaration are critical areas. Detainees may be advised of the risks of COVID-19, but what are they provided to prevent infection? Director Ortiz does not speak to actual personal hygiene items – such as soap – that are provided to detainees and how often detainees can actually wash. In this regard,
14

CasCea2s:e202-:c2v0--1c0v9-04394-L8V1-PJ-MMVJHDoEcCuFmNenot. 254-11Filfeilded040/40/91/72/020 PaPgaeg1e5IDo.4f 7198 PaPgaegIeD:6877o2f 95
Santana’s comments about lack of soap and basic hygiene items, along with mass use of limited bathroom and shower facilities, goes unchallenged. While cleaning may be increased, how often are the surfaces, to which the detainees are regularly exposed, properly disinfected?
The Court is not criticizing ECCF or ICE. Both have taken affirmative steps to address the pandemic for which they should be commended. However, there are certain realities that neither ECCF or ICE can overcome. As noted, jails were not designed to fight pandemics, and, unfortunately, such facilities can become perfect vessels for virus transmission. When this case was filed, on April 1, 2020, Petitioners were aware of five cases of COVID-19 in ECCF. Five days later, when Director Ortiz signed his declaration, that number had grown to twenty persons. Petitioners have shown a reasonable likelihood of success on the merits.
Next, the Court assesses whether the irreparable harm necessary for the grant of the injunction exists. “In order to demonstrate irreparable harm the plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial. The preliminary injunction must be the only way of protecting the plaintiff from harm.” Instant Air Freight Co. v. C. F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989) (internal citations omitted). When analyzing whether irreparable harm exists, “[t]he possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” See id., quoting Sampson v. Murray, 415 U.S. 61, 90 (1964).
15

CasCea2s:e202-:c2v0--1c0v9-04394-L8V1-PJ-MMVJHDoEcCuFmNenot. 254-11Filfeilded040/40/91/72/020 PaPgaeg1e6IDo.4f 8108 PaPgaegIeD:687o3f 95
The Court has already explained the seriousness of the Covid-19 pandemic and its rapid proliferation in this nation. Nonetheless, the Court will provide these sobering nationwide and county-wide confirmed case and death rates as a reminder. As of April 8, 2020, the United States has 425,000 confirmed cases and more than 14,000 deaths.9 And in what is New Jersey’s secondmost afflicted county, Essex, there are 5,078 confirmed cases and 232 deaths. 10 Even more concerning, the state’s projected peak is likely still weeks away.11
As noted earlier in this opinion, in addition to the volume of ECCF detainees confined to inherently limited living and sleeping quarters, they also appear to have limited access to hygiene products and must share bathroom facilities with a large number of persons. Moreover, given the timing of the first confirmed case at ECCF, it appears the detainee contracted the virus while in ECCF’s jurisdiction.
The previously described conditions of confinement raise serious concerns about the ability to stop transmission of the virus. With the conditions as currently described, at-risk detainees – including Petitioners -- cannot practically adhere to social distancing guidelines or the adequate level of personal hygiene, that have been touted as the most effective means to thwart the spread of the virus. Against this backdrop, Petitioners have demonstrated irreparable harm should they remain in confinement. See Thakker, 2020 WL 1671563 at *7 (“[C]atastrophic results may ensue,
9 US coronavirus predictions are shifting. Here’s why, CNN, https://www.cnn.com/2020/04/08/politics/what-matters-april-8/index.html (last accessed Apr. 8, 2020, 11:57 p.m.). 10 New Jersey coronavirus death toll now at 1,232. Total cases rise to 44, 416 with 3K new positive tests, NJ.com, https://www.nj.com/coronavirus/2020/04/new-jersey-coronavirus-tollnow-at-1232-total-cases-rise-to-44416-with-3k-new-positive-tests.html (last accessed Apr. 9, 2020, 12:15 a.m.). 11 Id.
16

CasCea2s:e202-:c2v0--1c0v9-04394-L8V1-PJ-MMVJHDoEcCuFmNenot. 254-11Filfeilded040/40/91/72/020 PaPgaeg1e7IDo.4f 8118 PaPgaegIeD:6897o4f 95
both to Petitioners and to the communities surrounding the Facilities.”); see also Hope v. Doll, Civ. No. 1:20-562 J.E.J. (M.D. Pa. Apr. 7, 2020) (“We cannot allow the Petitioners before us, all at heightened risk for severe complications from COVID-19, to bear the consequences of ICE’s inaction.”) The Court therefore finds that Petitioners have demonstrated irreparable harm should they remain in ECCF.
The Court is also satisfied that the balance of harms would weigh in favor of Petitioners given their underlying health conditions. “Before granting an injunction, a district court must balance the relative harm to the parties, i.e., the potential injury to the plaintiff if an injunction does not issue versus the potential injury to the defendant if the injunction is issued.” Novartis Consumer Health, Inc. v. Johnson & Johnson-Merch Consumer Pharm. Co., 290 F.3d 578, 596 (3d Cir. 2002) (internal citation omitted). Here, the potential injury to the Petitioners is grave in light of their health conditions. This Court has already provided a glimpse of the rate at which the virus has spread thus far, even throughout the segment of the state’s population that is at libertythe living conditions of those detained creates a more untenable situation. Yet, ICE undoubtedly has a legitimate interest in ensuring that the petitioners do not flee and in protecting the public. However, the Court believes that it can address those very important interests in fashioning appropriate conditions of release for each Petitioner.
When considering whether the specific action taken by the court serves the public interest, the guiding principle is assessing whether “not that justice be done, but that specific acts presumptively benefitting the public not be halted until the merits could be reached and a determination made as to what justice required.” Continental Group, Inc., v. Amoco Chemicals Corp., 614 F.2d 351, 358 (3d Cir. 1980). Clearly the public has an interest in preventing the further spread of COVID-19. Prevention, among other things, preserves critical medical
17

CasCea2s:e202-:c2v0--1c0v9-04394-L8V1-PJ-MMVJHDoEcCuFmNenot. 254-11Filfeilded040/40/91/72/020 PaPgaeg1e8IDo.4f 8128 PaPgaegIeD:7807o5f 95
resources necessary to combat the pandemic. Here, the possibility of a widespread outbreak within ECCF would only increase the onus on the state and country’s already-overburdened healthcare system. Indeed, as of April 6, 2020, ECCF already had twenty-reported cases. The public has an interest that limited health care resources are available as necessary – which means preventing as many COVID-19 cases as possible – but particularly those necessary for vulnerable persons.
At the same time, the public also has an interest in ensuring that Petitioners do not commit any offenses while on release. Both Rafael L.O. and Adrian E. G.G. have felony convictions, although neither have convictions for offenses of which violence is an element, save Adrian E. G.G.’s conviction twelve years ago. Javier S.M. does not have any felony conviction, but he is facing serious charges in New Jersey. Yet, this Court must acknowledge that the state court released Javier S.M. on his own recognizance. To this end, the Court considers the government’s requests completely reasonable, with certain modifications. D.E. 22. Petitioners argue that these limitations are too severe. Yet, the Court notes that the critical argument on which Petitioners rely is that they are unusually vulnerable to COVID-19. In line with that argument, the Court’s conditions of release not only protect the public but also protect the Petitioners.
IV. Conclusion For the foregoing reasons, the Court will grants Petitioner’s motion for a TRO (D.E. No. 5), and order Petitioners’ released subject to the conditions as ordered. An appropriate Order accompanies this Opinion. Dated: 4/9/2020
JOHN MICHAEL VAZQUEZ United States District Judge 18

Case 2:20-Ccva-s1e0914:290-L-cVvP-0-M04J8H0-JEECJF DNoc. u5m-1e1nt f4il7ed F04ile/1d70/230/31/P2a0gePIDa.g4e831 ofP2a5ge 71 of 95

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER,

:

et al.,

:

Petitioners-Plaintiffs,

:

:

v.

:

:

CLAIR DOLL, in his official capacity

:

as Warden of York County Prison,

:

et al.,

:

Respondents-Defendants.

:

1:20-cv-480 Hon. John E. Jones III

MEMORANDUM AND ORDER March 31, 2020
Pending before the Court is the Motion for Temporary Restraining Order and/or Preliminary Injunction filed by Petitioners-Plaintiffs Bharatkumar G. Thakker, Abedodun Adebomi Idowu, Courtney Stubbs, Rigoberto Gomez Hernandez, Rodolfo Augustin Juarez Juarez, Meiling Lin, Henry Pratt, Jean HErdy Christy Augustin, Mayowa Abayomi Oyediran, Agus Prajoga, Mansyur, Catalino Domingo Gomez Lopez and Dexter Anthony Hillocks (collectively “Petitioners”).1 (Doc. 7). The Motion has been briefed by the parties. (Docs. 12; 35; 46). The Court has received an amicus brief from a group of public health officials and human

1 Petitioners’ counsel advised that Mayansur and Agus Prajoga were released from immigration detention on March 27, 2020. (Doc. 33). Accordingly, their request for release from custody is moot.
1

Case 2:20-Ccva-s1e0914:290-L-cVvP-0-M04J8H0-JEECJF DNoc. u5m-1e1nt f4il7ed F04ile/1d70/230/31/P2a0gePIDa.g4e842 ofP2a5ge 72 of 95
rights experts, (Doc. 36), as well as a factual update and supplemental authority filed by Petitioners. (Docs. 33 and 34). Thus, this matter is ripe for our review.
For the reasons that follow, the temporary restraining order shall be granted and the Respondents shall be directed to immediately release Petitioners today on their own recognizance.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Petitioners are a diverse group of individuals from around the world who are
being held in civil detention by Immigration and Customs Enforcement (ICE) at York County Prison, Clinton County Correctional Facility and Pike County Correctional Facility, (“the Facilities”), while they await final disposition of their immigration cases.
Each Petitioner suffers from chronic medical conditions and faces an imminent risk of death or serious injury if exposed to COVID-19. Thakker is 65 years old and suffers from high blood pressure and cholesterol and has kidney failure. Further, he is currently suffering from symptoms similar to those of COVID-19. (Doc. 2, Ex. 3). Idowu, 57, had type II diabetes as well as high blood pressure and cholesterol. He is also currently sick. (Doc. 2, Ex. 4). Stubbs is 52 years old and is immunocompromised due to a kidney transplant he received 6 years ago. He has a heart stent and also suffers from type II diabetes and blood clots. (Doc. 2, Ex. 5). Hernandez, 52, suffers from diabetes, dental problems and an
2

Case 2:20-Ccva-s1e0914:290-L-cVvP-0-M04J8H0-JEECJF DNoc. u5m-1e1nt f4il7ed F04ile/1d70/230/31/P2a0gePIDa.g4e853 ofP2a5ge 73 of 95
ulcer. (Doc. 2, Ex. 7). Juarez, 21, suffers from diabetes and is currently sick with COVID-19 type symptoms, including trouble breathing. (Doc. 2, Ex. 8). Lin is 45 years old and suffers from chronic pain due to a forced sterilization, as well as chronic hepatitis B and liver disease. (Doc. 2, Ex. 9). Pratt, age 50, suffers from diabetes and high blood pressure. (Doc. 2, Ex. 10). Augustin, 34 years old, suffers from multiple conditions including diabetes, high blood pressure, nerve pain, limited mobility and pain from a prior bladder and intestine reconstruction, anemia, PTSD and depression. (Doc. 2, Ex. 11). Oyediran is a 40-year-old asthmatic suffering from high blood pressure and cholesterol. (Doc. 2, Ex. 12). Lopez, age 51, has contracted the flu four times while in ICE custody since November of 2018 and is concerned that he is especially susceptible to contracting COVID-19. (Doc. 2, Ex. 15). Finally, Hillocks, age 54, has been diagnosed with leukemia. He also suffers from diabetes, anemia, high blood pressure and cholesterol. (Doc. 2, Ex. 16).
Several Petitioners have reported symptoms similar to those of COVID-19. None have been quarantined, isolated, or treated. (Doc. 2 Exs. 3; 4; 8).
Named as Respondents are: Clair Doll, Warden of York County Prison; Angela Hoover, Warden of Clinton County Correctional Facility; Craig A. Lowe, Warden of Pike County Correctional Facility; Simona Flores-Lund, Field Office Director, ICE Enforcement and Removal Operations; Matthew Albence, Acting
3

Case 2:20-Ccva-s1e0914:290-L-cVvP-0-M04J8H0-JEECJF DNoc. u5m-1e1nt f4il7ed F04ile/1d70/230/31/P2a0gePIDa.g4e864 ofP2a5ge 74 of 95
Director of ICE; and Chad Wolf, Acting Secretary of the Department of Homeland Security.
II. DISCUSSION In a matter of weeks, the novel coronavirus COVID-19 has rampaged across
the globe, altering the landscape of everyday American life in ways previously unimaginable. Large portions of our economy have come to a standstill. Children have been forced to attend school remotely. Workers deemed ‘non-essential’ to our national infrastructure have been told to stay home. Indeed, we now live our lives by terms we had never heard of a month ago—we are “social distancing” and “flattening the curve” to combat a global pandemic2 that has, as of the date of this writing, infected 719,700 people worldwide and killed more than 33,673.3 Each day these statistics move exponentially higher. It is against this increasingly grim backdrop that we now consider the Petitioners’ claims for habeas relief.

2

The World Health Organization (“WHO”) officially declared COVID-19 as global

pandemic on March 11, 2020. See WHO Director-General's opening remarks at the media

briefing on COVID-19 - 11 March 2020, WORLD HEALTH ORGANIZATION, (March 11, 2020),

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

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

3

See Coronavirus Disease (COVID-19) Pandemic, WORLD HEALTH ORGANIZATION,

https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last accessed March 31,

2020).

4

Case 2:20-Ccva-s1e0914:290-L-cVvP-0-M04J8H0-JEECJF DNoc. u5m-1e1nt f4il7ed F04ile/1d70/230/31/P2a0gePIDa.g4e875 ofP2a5ge 75 of 95
A. Threshold Questions: Standing and the Propriety of a Habeas Petition
Respondents raise two threshold challenges to the Petitioners’ Motion. First, Respondents contend that Petitioners lack standing because they have not alleged an injury in fact. Next, Respondents submit that Petitioners cannot challenge their conditions of confinement through a habeas petition. Taking the latter challenge first, we note that federal courts, including the Third Circuit, have condoned conditions of confinement challenges through habeas. See Aamer v. Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014); see also Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242-44 (3d Cir. 2005); see also Ali v. Gibson, 572 F.2d 971, 975 n.8 (3d Cir. 1978). Accordingly, we find that Petitioners have appropriately invoked this court’s jurisdiction through a 28 U.S.C. § 2241 petition for writ of habeas corpus.
Respondents’ standing challenge can also be easily resolved. Respondents essentially contend that because the Petitioners themselves do not have COVID-19 and their likelihood of contracting the illness is speculative, Petitioners cannot establish that they would suffer a concrete, non-hypothetical injury absent a temporary restraining order. However, as the Supreme Court observed in Helling v. McKinney, 509 U.S. 25, 33 (1993), “it would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.” The COVID-19 pandemic is moving rapidly and expansively throughout Pennsylvania. Vast regions of the
5

Case 2:20-Ccva-s1e0914:290-L-cVvP-0-M04J8H0-JEECJF DNoc. u5m-1e1nt f4il7ed F04ile/1d70/230/31/P2a0gePIDa.g4e886 ofP2a5ge 76 of 95
Commonwealth are now under stay-at-home orders, and social distancing the norm to prevent the spread of this deadly virus. And yet, Respondents would have us offer no substantial relief to Petitioners until the pandemic erupts in our prisons. We reject this notion. Since “[a] remedy for unsafe conditions need not await a tragic event,” it is evident that the Petitioners have standing in this matter. Id.
B. Temporary Restraining Order i. Legal Standard
Courts apply one standard when considering whether to issue interim injunctive relief, regardless of whether a petitioner requests a temporary restraining order (“TRO”) or preliminary injunction. See Ellakkany v. Common Pleas Court of Montgomery Cnty., 658 Fed.Appx. 25, 27 (3d Cir. July 27, 2016) (applying one standard to a motion for both a TRO and preliminary injunction). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Apple Inc. v. Samsung Electronics Co., 695 F.3d 1370, 1373–74 (Fed. Cir. 2012) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365 (2008)).
The Supreme Court has emphasized that “a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the
6

Case 2:20-Ccva-s1e0914:290-L-cVvP-0-M04J8H0-JEECJF DNoc. u5m-1e1nt f4il7ed F04ile/1d70/230/31/P2a0gePIDa.g4e897 ofP2a5ge 77 of 95
movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Apotex Inc. v. U.S. Food and Drug Admin., 508 F.Supp.2d 78, 82 (D.D.C. 2007) (“Because interim injunctive relief is an extraordinary form of judicial relief, courts should grant such relief sparingly.”). “Awarding preliminary relief, therefore, is only appropriate ‘upon a clear showing that the plaintiff is entitled to such relief.’” Groupe SEC USA, Inc. v. Euro–Pro Operating LLC, 774 F.3d 192, 197 (3d Cir. 2014) (quoting Winter, 555 U.S. at 22).
ii. Irreparable Harm To succeed on their Motion, Petitioners “must demonstrate. . .the probability of irreparable harm if relief is not granted.” Frank’s GMC Truck Center, Inc. v. General Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988) (internal quotations omitted). “In order to demonstrate irreparable harm the plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial”. . .the temporary restraining order. . .“must be the only way of protecting the plaintiff from harm.” Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). The moving party must demonstrate that it is likely to suffer “actual or imminent harm which cannot otherwise be compensated by money damages,” or it “fail[s] to sustain its substantial burden of showing irreparable harm.” Frank’s GMC, 847 F.2d at 103. The mere risk of injury is insufficient. The moving party must establish that the harm is imminent and
7

Case 2:20-Ccva-s1e0914:290-L-cVvP-0-M04J8H0-JEECJF DNoc. u5m-1e1nt f4il7ed F04ile/1d70/230/31/P2a0gePIDa.g4e908 ofP2a5ge 78 of 95
probable. Anderson v. Davila, 125 F.3d 148, 164 (3d Cir. 1997). Additionally, “a showing of irreparable harm is insufficient if the harm will occur only in the indefinite future. Rather, the moving party must make a clear showing of immediate irreparable harm.” Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992).
The Petitioners’ claim is rooted in imminent, irreparable harm. Petitioners face the inexorable progression of a global pandemic creeping across our nation—a pandemic to which they are particularly vulnerable due to age and underlying medical conditions. At this point, it is not a matter of if COVID-19 will enter Pennsylvania prisons, but when it is finally detected therein. It is not unlikely that COVID-19 is already present in some county prisons—we have before us declarations that portions of the Facilities have been put under ineffective quarantines due to the presence of symptoms similar to COVID-19 among the inmate population.4 Indeed, we also have reports that a correctional officer at Pike has already tested positive for COVID-19. (Doc. 33 at 1).
Public health officials now acknowledge that there is little that can be done to stop the spread of COVID-19 absent effective quarantines and social distancing procedures. But Petitioners are unable to keep socially distant while detained by

4

We also have allegations that prison guards have shown symptoms while interacting with

inmates.

8

Case 2:20-Ccva-s1e0914:290-L-cVvP-0-M04J8H0-JEECJF DNoc. u5m-1e1nt f4il7ed F04ile/1d70/230/31/P2a0gePIDa.g4e919 ofP2a5ge 79 of 95

ICE and cannot keep the detention facilities sufficiently clean to combat the spread of the virus. Based upon the nature of the virus, the allegations of current conditions in the prisons, and Petitioners’ specific medical concerns, detailed below, we therefore find that Petitioners face a very real risk of serious, lasting illness or death. There can be no injury more irreparable.
a. Seriousness of the virus COVID-19 is a type of highly contagious novel coronavirus that is thought to be “spreading easily and sustainably in the community.” 5 Experts believe that it can live on some surfaces for up to 72 hours after contact with an infected person.6 A simple sneeze or brush of the face without washing your hands is now known to easily spread the virus, which generally causes fever, cough, and shortness of breath. (How Coronavirus Spreads, CENTERS FOR DISEASE CONTROL; Doc. 12 at 15). In most people, these symptoms are relatively mild. (Doc. 12 at 15). However, the effects of COVID-19 can be drastically more severe in older individuals or those with medical conditions. (Doc.2, Ex. 2). In some cases, COVID-19 can cause serious, potentially permanent, damage to lung tissue, and

5

How Coronavirus Spreads, CENTERS FOR DISEASE CONTROL AND PREVENTION,

https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html (last accessed March 31,

2020).

6

New Coronavirus Stable for Hours on Surfaces, NATIONAL INSTITUTE OF HEALTH (March

17, 2020), https://www.nih.gov/news-events/news-releases/new-coronavirus-stable-hours-

surfaces.

9

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M4J8H0-JEJCFDNooc.u5m-1e1nt 4fi7ledF0il4e/d170/32/031/2P0agePIaDg.4e9120 oPf 2a5ge 80 of 95
can require extensive use of a ventilator. (Id.). The virus can also place greater strain on the heart muscle and can cause damage to the immune system and kidneys. (Id.). These long-term consequences and the likelihood of fatality increase in those of advanced age and those with other medical conditions, like the Petitioners here. (Id.). For those in high-risk categories, the fatality rate is thought to be approximately fifteen percent. (Id.).
There is currently no vaccine for COVID-19, nor are there known, clinically-tested therapeutic treatments. (Id.). As a result, public health officials have touted the importance of maintaining physical separation of at least six feet between individuals, now commonly known as “social distancing.” (Id.). Experts have also emphasized that proper hand hygiene with soap and water is vital to stop the spread. (Id.). Beyond these measures, health professionals can do little to combat this highly infectious disease. (Id.).
b. Prevalence of the virus The United States now records more confirmed cases of COVID-19 than any other country in the world.7 As of the date of this writing, there were in excess of

7

Nicole Chavez, Holly Yan, and Madeline Holcombe, US has more Known Cases of

Coronavirus than any Other Country, CNN,

https://www.cnn.com/2020/03/26/health/coronavirus-thousand-deaths-thursday/index.html (last

accessed March 31, 2020).

10

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M4J8H0-JEJCFDNooc.u5m-1e1nt 4fi7ledF0il4e/d170/32/031/2P0agePIaDg.4e9131 oPf 2a5ge 81 of 95
164,458 cases of the virus in America, with 3,167 fatalities.8 This represented an increase of 2,651 cases in only twenty-four hours. (Id).
Indeed, Pennsylvania currently reports 4,087 confirmed cases of COVID-19, with 48 fatalities.9 Troublingly, that number represents nearly double the confirmed cases reported a mere four days ago—on March 27, 2020, Pennsylvania reported a total of 2,218 cases, with 22 deaths. Id. The three counties which house the Facilities are located in York County, Pike County, and Clinton County. They currently report a total of 93 cases: 54 in York County and 39 in Pike County.10 Clinton County has not yet reported any confirmed cases of COVID-19. Id. As of March 27, 2020, the Governor of Pennsylvania placed both York County and Pike County under a stay-at-home order in an attempt to slow the spread of the virus.11

8

Niko Kommenda, Pablo Gutiérrez, and Juweek Adolphe, Coronavirus Map of the US:

Latest Cases State by State, THE GUARDIAN, https://www.theguardian.com/world/ng-

interactive/2020/mar/27/coronavirus-map-of-the-us-latest-cases-state-by-state (last accessed

March 31, 2020).

9

Coronavirus (COVID-19): Pennsylvania Overview, PENNSYLVANIA DEPARTMENT OF

HEALTH, https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last accessed

March 31, 2020).

10

Coronavirus (COVID-19): Pennsylvania Overview, PENNSYLVANIA DEPARTMENT OF

HEALTH, https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last accessed

March 31, 2020).

11 Governor Wolf and Health Secretary Expand ‘Stay at Home’ Order to Nine More Counties to Mitigate Spread of COVID-19, Counties Now Total 19, WEBSITE OF THE GOVERNOR OF PENNSYLVANIA, https://www.governor.pa.gov/newsroom/governor-wolf-and-healthsecretary-expand-stay-at-home-order-to-nine-more-counties-to-mitigate-spread-of-covid-19counties-now-total-19/ (last accessed March 31, 2020).

11

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M4J8H0-JEJCFDNooc.u5m-1e1nt 4fi7ledF0il4e/d170/32/031/2P0agePIaDg.4e9142 oPf 2a5ge 82 of 95
Average Pennsylvanians in these counties can no longer leave their homes for anything but essential trips to gather supplies, medications, or to perform work essential to our national infrastructure—COVID-19 spreads so easily and rapidly that public health officials have determined that social isolation is necessary to keep our hospital systems from becoming overwhelmed. Id. The same rationale applies, perhaps even more so, to immigration detention facilities housing highrisk populations.
c. Unique nature of detention facilities Various public health officials have warned that the nature of ICE detention facilities makes them uniquely vulnerable to the rapid spread of highly contagious diseases like COVID-19. COVID-19 is transmitted primarily through “close contact via respiratory droplets produced when an infected person coughs or sneezes.” (Doc. 12 at 18; Doc. 2, Ex. 1). Immigration detention facilities are particularly at risk for such close contact because they are considered “congregate settings, or places where people live or sleep in close proximity.” (Doc. 2, Ex. 1). Such conditions provide “ideal incubation conditions” for COVID-19. (Id.). Within the past few weeks, two medical experts for the Department of Homeland Security authored a letter to Congress warning of the unique dangers COVID-19 poses to ICE detention facilities. Specifically, they described the current ICE detention environment as a “tinderbox” in which:
12

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M4J8H0-JEJCFDNooc.u5m-1e1nt 4fi7ledF0il4e/d170/32/031/2P0agePIaDg.4e9153 oPf 2a5ge 83 of 95
[a]s local hospital systems become overwhelmed by the patient flow from detention center outbreaks, precious health resources will be less available for people in the community. . .To be more explicit, a detention center with a rapid outbreak could result in multiple detainees — five, ten or more — being sent to the local community hospital where there may only be six or eight ventilators over a very short period. . .As [hospitals] fill up and overwhelm the ventilator resources, those ventilators are unavailable when the infection inevitably is carried by staff to the community and are also unavailable for all the usual critical illnesses (heart attacks, trauma, etc).12
The experts contrasted this scenario with a situation in which ICE detainees were
released from “high risk congregate settings,” allowing the “volume of patients sent
to community hospitals to level out,” which they believed would provide much more
favorable outcomes, both for the detainees and the surrounding communities. Id. “At
a minimum,” these health experts urged, the government “should consider releasing
all detainees in high risk medical groups such as older people and those with chronic
diseases.” Id. ICE detention facilities, they warned, are so poorly equipped to allow
safe social distancing practices and are unlikely to have the ability to provide
adequate medical care in the case of a COVID-19 outbreak. Id. The consequences,
they maintain, could be disastrous. Id.
12 Catherine E. Shoichet, Doctors warn of 'tinderbox scenario' if coronavirus spreads in ICE detention, CNN, https://www.cnn.com/2020/03/20/health/doctors-ice-detention-coronavirus/ (last accessed March 28, 2020).
13

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M4J8H0-JEJCFDNooc.u5m-1e1nt 4fi7ledF0il4e/d170/32/031/2P0agePIaDg.4e9164 oPf 2a5ge 84 of 95
Indeed, we have before us declarations stating that such high-risk conditions are present in the detention facilities at issue in this case. Both Petitioners and lawyers familiar with the ICE facilities at issue here have attested to overcrowding that makes social distancing impossible at all three facilities. At the York facility, for example, inmates are housed in dormitory-style conditions, in which 60 people reside in each housing block. (Doc. 2, Ex. 18). That space is used for both eating and sleeping. (Id.). Petitioners report that not even the medical staff wear gloves when in contact with inmates. (Doc. 2, Ex. 11). Detainees must eat their meals four-to-atable, with approximately three feet of space between individuals. (Id.).
At Clinton, inmate bunks are often less than two feet apart, and inmate declarations show that it is difficult to keep more than a two feet distance between inmates, let alone the recommended six feet. (Doc. 2, Ex. 10). The laundry facilities at Clinton are also reported to be chronically broken, preventing detainees from keeping their clothes and bedding clean. (Id.). Indeed, for a total of 72 men, Clinton provides only four sets of sinks and showers. (Id.). The Facility is also reported to have bugs mice, and rats, which add to the unsanitary conditions experienced by detainees. (Id.).
At Pike, detainees share eight-by-ten or twelve foot cells with two other men. (Doc. 2, Ex. 13). Those cells also contain a sink and a shower. (Id). Some men at Pike report being forced to share cells with other individuals currently exhibiting
14

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M4J8H0-JEJCFDNooc.u5m-1e1nt 4fi7ledF0il4e/d170/32/031/2P0agePIaDg.4e9175 oPf 2a5ge 85 of 95
COVID-19 symptoms or report exhibiting symptoms themselves while housed with other inmates. (Doc. 2, Exs. 3; 4; 8). Inmates at Pike are also usually forced to remain within two feet of other individuals, even while in the common areas of the facility. (Doc. 2, Ex. 4). They are also required to buy their own soap, are not given hand sanitizer, and are forced to share cleaning supplies with an entire block of cells. (Doc. 2, Exs. 3; 13).
ICE guidance states that these types of risks are mitigated by quarantining detainees with symptoms and by housing those with a higher risk of exposure separately from the rest of the detainee population. (Doc. 2, Ex. 1). The Respondents further proffer that the Facilities are practicing “cohorting,” an “infection prevention strategy which involves housing detainees together who were exposed to a person with an infectious organism but are asymptomatic.” (Doc. 35 at 12). This practice is meant to last for fourteen days, the duration of the virus’s incubation period. The Petitioner’s declarations, however, show that these practices are not being followed. At least two Petitioners aver that they are experiencing symptoms and have not been isolated from other individuals. (Doc. 2, Exs. 3; 4; 8). Furthermore, all Petitioners have a higher risk of exposure, and none have been moved to separate housing. Indeed, it does not even seem that ICE is providing detainees with proper information on how they can combat the virus on their own. (Doc. 2, Ex. 3). Troublingly, some facilities seem to have shut off detainee access to news outlets,
15

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M4J8H0-JEJCFDNooc.u5m-1e1nt 4fi7ledF0il4e/d170/32/031/2P0agePIaDg.4e9186 oPf 2a5ge 86 of 95

thereby preventing the detention facility’s population from informing themselves on best practices to prevent transmission. (Doc. 2, Ex. 5).
d. Petitioners are at uniquely high risk for contracting COVID-19
Not only are the Facilities themselves uniquely suited to rapidly spread COVID-19, but also Petitioners themselves are members of high-risk groups that are likely to feel the effects of the virus more keenly than the average individual.13 Each of the Petitioners before us has an underlying medical condition that heightens their risk of serious COVID-19 effects, among them asthma, diabetes, heart conditions, hepatitis, and immunocompromising conditions such as leukemia and organ transplants.
e. The threat to high-risk individuals posed by COVID-19 constitutes irreparable injury
Various courts across the nation have found that COVID-19, coupled with the lack of hygiene and overcrowding present in detention facilities, will pose a greatly heightened risk to inmates. See Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir.

13

People at Risk for Serious Illness from COVID-19, CENTERS FOR DISEASE CONTROL AND

PREVENTION, (Mar. 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/specific-

groups/high-risk-complications.html (“Older people and people of all ages with severe

underlying health conditions—like heart disease, lung disease and diabetes, for example—seem

to be at higher risk of developing serious COVID-19 illness”); Information for Healthcare

Professionals: COVID-19 and Underlying Conditions, CENTERS FOR DISEASE CONTROL AND

PREVENTION, (Mar. 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/underlying-

conditions.html (stating that “moderate to severe asthma,” “heart disease,” “obesity,” and

“diabetes” are conditions that trigger higher risk of severe illness from COVID-19).

16

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M4J8H0-JEJCFDNooc.u5m-1e1nt 4fi7ledF0il4e/d170/32/031/2P0agePIaDg.4e9197 oPf 2a5ge 87 of 95
Mar. 23, 2020) (“[I]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention and that removal of Petitioner be stayed pending final disposition by this court.”); United States v. Stephens, No. 15 Cr. 95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (“[I]nmates may be at a heightened risk of contracting COVID-19 should an outbreak develop.”); United States v. Garlock, 18 Cr. 418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (“By now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided. Several recent court rulings have explained the health risks—to inmates, guards, and the community at large— created by large prison populations. Notably, the chaos has already begun inside federal prisons—inmates and prison employees are starting to test positive for the virus, quarantines are being instituted, visits from outsiders have been suspended, and inmate movement is being restricted even more than usual.” (citations omitted)).
Courts have also acknowledged the particular risks facing older inmates and those with underlying medical conditions. See United States v. Martin, No. 19 Cr. 140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“[T]he Due Process Clauses of the Fifth or Fourteenth Amendments, for federal and state pretrial
17

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M4J8H0-JEJCFDNooc.u5m-1e1nt 4fi7ledF0il4e/d170/32/031/2P0agePIaDg.5e0108 oPf 2a5ge 88 of 95
detainees, respectively, may well be implicated if defendants awaiting trial can demonstrate that they are being subjected to conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness.”). At least one court has ordered the release on bail of an inmate facing extradition on the basis of the risk the pandemic poses to his health. Matter of Extradition of Toledo Manrique, No. 19 MJ 71055, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020) (“These are extraordinary times. The novel coronavirus that began in Wuhan, China, is now a pandemic. The nine counties in the San Francisco Bay Area have imposed shelterin-place orders in an effort to slow the spread of the contagion. This Court has temporarily halted jury trials, even in criminal cases, and barred the public from courthouses. Against this background, Alejandro Toledo has moved for release, arguing that at 74 years old he is at risk of serious illness or death if he remains in custody. The Court is persuaded. The risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail.”).
Indeed, courts have even specifically held that COVID-19 constitutes an irreparable harm that supports the grant of a TRO. See Vasif “Vincent” Basank, et al v. Decker, 2020 WL 1481503 at *4-5 (S.D.N.Y. March 26, 2020) (“The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO”); Castillo v.
18

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M4J8H0-JEJCFDNooc.u5m-1e1nt 4fi7ledF0il4e/d170/32/031/2P0agePIaDg.5e0119 oPf 2a5ge 89 of 95
Barr, CV-20-00605-TJH (C.D. Cal. 2020) (granting a TRO to immigration detainees due to the COVID-19 pandemic); see also Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir. 1995) (finding irreparable harm “premised ... upon [the district court’s] finding that [Petitioner] was subject to risk of injury, infection, and humiliation”); Mayer v. Wing, 922 F. Supp. 902, 909 (S.D.N.Y. 1996) (“[T]he deprivation of life-sustaining medical services. . .certainly constitutes irreparable harm.”).
The painful new reality is that we are constantly at risk of contracting a deadly virus and are experiencing previously unimagined safety measures to stop its spread. This virus spares no demographic or race and is ruthless in its assault. The precautions being adopted to stop it should apply equally, if not more so, to the most vulnerable among us. Petitioners have shown that adequate measures are not in place and cannot be taken to protect them from COVID-19 in the detention facilities, and that catastrophic results may ensue, both to Petitioners and to the communities surrounding the Facilities. We therefore find that the likely irreparable injury to Petitioners, as high-risk individuals, satisfies the first element of our TRO analysis.
iii. Likelihood of Success on the Merits Petitioners argue that their continued incarceration in ICE detention facilities exposes them to serious risks associated with COVID-19 which violate their due
19

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M4J8H0-JEJCFDNooc.u5m-1e1nt 4fi7ledF0il4e/d170/32/031/2P0agePIaDg.5e0220 oPf 2a5ge 90 of 95
process rights. (Doc. 2 at 27). We find that Petitioners are likely to succeed on the merits of their claim.14
To bring a Fifth Amendment due process claim, Petitioners must show that their conditions of confinement “amount[ed] to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). “To determine whether challenged conditions of confinement amount to punishment, this Court determines whether a condition of confinement is reasonably related to a legitimate governmental objective; if it is not, we may infer ‘that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.’” E. D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019) (quoting Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008)). In other words, we must ascertain whether the conditions serve a legitimate purpose and whether the conditions are rationally related to that legitimate purpose. Hubbard 538 F.3d at 232.
Considering the Facility conditions previously discussed, we can see no rational relationship between a legitimate government objective and keeping Petitioners detained in unsanitary, tightly-packed environments—doing so would
14 The Respondents argue that Petitioners do not have a legitimate due process claim because they have no “liberty or property interest” in a purely “discretionary grant of humanitarian parole.” (Doc. 35 at 28). We disagree. “Unsanitary, unsafe, or otherwise inadequate conditions” are sufficient to state a Due Process Claim and we shall thus proceed with our analysis. Petty v. Nutter, No. 15-3430, 2016 WL 7018538, at *2 (E.D. Pa. Nov. 30, 2016); Grohs v. Lanigan, No. 16-7083, 2019 WL 1500621, at *11 (D.N.J. Apr. 5, 2019) (“extreme heat combined with lack of potable water, as well as generally unsanitary conditions” are sufficient to state a conditions-of-confinement claim).
20

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M4J8H0-JEJCFDNooc.u5m-1e1nt 4fi7ledF0il4e/d170/32/031/2P0agePIaDg.5e0231 oPf 2a5ge 91 of 95
constitute a punishment to Petitioners. Despite the Respondents’ protests to the contrary, we need not find that the Facilities had the “express intent” to punish Petitioners with the conditions alleged. (Doc. 35 at 37). Instead we ask whether the conditions are rationally related to a legitimate government objective. Hubbard 538 F.3d at 232. Here, they are not.
The Respondents maintain that “preventing detained aliens from absconding and ensuring that they appear for removal proceedings is a legitimate governmental objective.” (Doc. 35 at 38). They cite a great deal of authority supporting this point, and we do not disagree. (Id.). However, we cannot find that unsanitary conditions, which include overcrowding and a high risk of COVID-19 transmission, are rationally related to that legitimate government objective.
Social distancing and proper hygiene are the only effective means by which we can stop the spread of COVID-19. Petitioners have shown that, despite their best efforts, they cannot practice these effective preventative measures in the Facilities. Considering, therefore, the grave consequences that will result from an outbreak of COVID-19, particularly to the high-risk Petitioners in this case, we cannot countenance physical detention in such tightly-confined, unhygienic spaces.
The global COVID-19 pandemic and the ensuing public health crisis now faced by American society have forced us all to find new ways of operating that prevent virus transmission to the greatest extent possible. We expect no less of ICE.
21

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M4J8H0-JEJCFDNooc.u5m-1e1nt 4fi7ledF0il4e/d170/32/031/2P0agePIaDg.5e0242 oPf 2a5ge 92 of 95
We note that ICE has a plethora of means other than physical detention at their
disposal by which they may monitor civil detainees and ensure that they are present
at removal proceedings, including remote monitoring and routine check-ins.
Physical detention itself will place a burden on community healthcare systems and
will needlessly endanger Petitioners, prison employees, and the greater community.
We cannot see the rational basis of such a risk.15
We therefore find that Petitioners are likely to succeed on the merits of their
due process claim that their conditions of confinement expose them “to serious risks
associated with COVID-19.” (Doc. 2 at 35).
15 Moreover, not only have Petitioners established a likelihood of success on the merits on their Fifth Amendment claim, but, in fact, they have also demonstrated that their claim is likely to be successful under the more exacting Eighth Amendment standards as well. To succeed in proving that conditions of confinement violate the Eighth Amendment, a plaintiff must show: (1) the deprivation alleged must objectively be “sufficiently serious,” and (2) the “prison official must have a sufficiently culpable state of mind,” such as deliberate indifference to the prisoner’s health or safety. See Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). COVID-19 has been shown to spread in the matter of a single day and would well prove deadly for Petitioners. Such a risk is objectively “sufficiently serious.” Furthermore, the Supreme Court has recognized authorities can be “deliberately indifferent to an inmate’s current health problems” where they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993). There is no requirement that Petitioners show that “they actually suffered from serious injuries” to succeed on this claim. See Helling, 509 U.S. at 33. Instead, if Petitioners can show that the conditions “pose an unreasonable risk of serious damage to their future health,” they may succeed on their claim. Helling, 509 U.S.at 35) (alteration omitted). The current measures undertaken by ICE, including “cohorting” detainees, are patently ineffective in preventing the spread of COVID-19. Indeed, we now have reports of a positive test amongst the employees at Pike County prison, thereby greatly increasing the likelihood that COVID-19 is present in the prison population.
22

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M4J8H0-JEJCFDNooc.u5m-1e1nt 4fi7ledF0il4e/d170/32/031/2P0agePIaDg.5e0253 oPf 2a5ge 93 of 95
iv. Balancing of the Equities and Public Interest The equities at issue and public interest weigh heavily in Petitioners’ favor. First, and as described, Petitioners face irreparable harm to both their constitutional rights and their health. Second, we find that the potential harm to the Respondents is limited. While we understand and agree that preventing Petitioners from absconding and ensuring their presence at immigration proceedings is important, we note that Petitioners’ failure to appear at future immigration proceedings would carry grave consequences of which Petitioners are surely aware. Further, it is our view that the risk of absconding is low, given the current restricted state of travel in the United States and the world during the COVID-19 pandemic. Finally, the public interest favors Petitioners’ release. As mentioned, Petitioners are being detained for civil violations of this country’s immigration laws. Given the highly unusual and unique circumstances posed by the COVID-19 pandemic and ensuing crisis, “the continued detention of aging or ill civil detainees does not serve the public’s interest.” Basank, 2020 WL 1481503, *6; see also Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (opining that “the design and operation of detention settings promotes the spread of communicable diseases such as COVID-19”); Castillo v. Barr, CV-20-00605-TJH (C.D. Cal. 2020). Efforts to stop the spread of COVID-19 and promote public health are clearly in the public’s best interest, and
23

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M4J8H0-JEJCFDNooc.u5m-1e1nt 4fi7ledF0il4e/d170/32/031/2P0agePIaDg.5e0264 oPf 2a5ge 94 of 95
the release of these fragile Petitioners from confinement is one step further in a positive direction.
III. CONCLUSION In times such as these, we must acknowledge that the status quo of a mere
few weeks ago no longer applies. Our world has been altered with lightning speed, and the results are both unprecedented and ghastly. We now face a global pandemic in which the actions of each individual can have a drastic impact on an entire community. The choices we now make must reflect this new reality.
Respondents’ Facilities are plainly not equipped to protect Petitioners from a potentially fatal exposure to COVID-19. While this deficiency is neither intentional nor malicious, should we fail to afford relief to Petitioners we will be a party to an unconscionable and possibly barbaric result. Our Constitution and laws apply equally to the most vulnerable among us, particularly when matters of public health are at issue. This is true even for those who have lost a measure of their freedom. If we are to remain the civilized society we hold ourselves out to be, it would be heartless and inhumane not to recognize Petitioners’ plight. And so we will act.
Based on the foregoing, we shall grant the requested temporary restraining order. Respondents, and the York County Prison, Clinton County Correctional Facility and Pike County Correctional Facility shall be ordered to immediately
24

Case 2:20C-cavs-1e019:4290--LcVv-P0-0M4J8H0-JEJCFDNooc.u5m-1e1nt 4fi7ledF0il4e/d170/32/031/2P0agePIaDg.5e0275 oPf 2a5ge 95 of 95
release the Petitioners today on their own recognizance without fail. NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Petitioners’ Motion for Temporary Restraining Order, (Doc. 7), is GRANTED.
2. Respondents, and the York County Prison, Clinton County Correctional Facility and Pike County Correctional Facility SHALL IMMEDIATELY RELEASE the Petitioners TODAY on their own recognizance.
3. This TRO will expire on April 13, 2020 at 5:00 p.m. 4. No later than noon on April 7, 2020, the Respondents shall SHOW
CAUSE why the TRO should not be converted into a preliminary injunction. 5. The Petitioners may file a response before the opening of business on April 10, 2020.
s/ John E. Jones III John E. Jones III United States District Judge
25

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.508 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,

Case No. 20-cv-10949 Hon. Linda V. Parker

v.

MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,

Defendants.

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

For the reasons that will be set forth in Plaintiffs’ Brief in Support of Motion

for Class Certification, attached below, Plaintiffs request that this Court certify a

class, pursuant to Fed. R. Civ. P. 23(b)(2), as well as four subclasses. This class

action seeks to require Defendants to implement procedures that provide reasonable

medical care for Plaintiffs and keep them reasonably safe from contracting

communicable disease while in custody. But some people (constituting the two

subclasses) are so vulnerable to COVID-19 that no procedures could be

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.509 Page 2 of 32
implemented fast enough to protect them; these people must be released immediately, and they seek a writ of habeas corpus ordering just that.
Plaintiffs, therefore, seek to certify one class with three subclasses as follows: • The Class (“the Jail Class”) is defined as: “All current and future persons
detained at the Oakland County Jail during the course of the COVID-19 pandemic.” • The First Subclass (“Pre-trial Subclass”) is defined as “All current and future persons detained at the Oakland County Jail during the course of the COVID-19 pandemic who have not yet been convicted of the offense for which they are currently held in the Jail.” • The Second Subclass (“Post-conviction Subclass”) is defined as “All current and future persons detained at the Oakland County Jail during the course of the COVID-19 pandemic who are have been sentenced to serve time in the Jail or who are otherwise in the Jail as the result of an offense for which they have already been convicted.” • The Third Subclass (“Medically-Vulnerable Subclass”) is defined as: “All members of the Jail Class who are also over the age of fifty, or who, regardless of age, experience an underlying medical condition that places them at particular risk of serious illness or death from COVID-19, including but not limited to (a) lung disease, including asthma, chronic
2

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.510 Page 3 of 32
obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure and coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; and/or (l) a current or recent (last two weeks) pregnancy.” Plaintiffs further request that their undersigned attorneys be appointed as class counsel, pursuant to Fed. R. Civ. P. 23(g).
Respectfully Submitted,
3

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.511 Page 4 of 32

/s/ Krithika Santhanam Krithika Santhanam (DC Bar No. 1632807)* Thomas B. Harvey (MBE #61734MO)* Advancement Project National Office 1220 L Street, N.W., Suite 850 Washington, DC 20005 Tel: (202) 728-9557 Ksanthanam@advancementproject.org Tharvey@advancementproject.org
/s/ Philip Mayor Philip Mayor (P81691) Daniel S. Korobkin (P72842) American Civil Liberties Union
Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6803 pmayor@aclumich.org dkorobkin@aclumich.org

/s/ Cary S. McGehee Cary S. McGehee (P42318) Kevin M. Carlson (P67704) Pitt, McGehee, Palmer, Bonanni & Rivers, PC 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 cmcgehee@pittlawpc.com kcarlson@pittlawpc.com
/s/ Allison L. Kriger________ Allison L. Kriger (P76364) LaRene & Kriger, PLC 645 Griswold, Suite 1717 Detroit, MI 48226 (313) 967-0100 Allison.kriger@gmail.com

/s/ Alexandria Twinem Alexandria Twinem (D.C. Bar No. 1644851)* Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Tel: 202-894-6126 Fax: 202-609-8030 alexandria@civilrightscorps.org

Attorneys for Plaintiffs/Petitioners *Applications for admission forthcoming Dated: April 17, 2020

4

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.512 Page 5 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,

Case No. 20-cv-10949 Hon. Linda V. Parker

v.

MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,

Defendants.

PLAINTIFFS BRIEF IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.513 Page 6 of 32
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION .....................................................................................................1 BACKGROUND AND FACTS ................................................................................2
I. Plaintiffs Are Being Detained In Extraordinarily Unsafe Conditions that Cannot Protect Them From this Global Pandemic. ........................................2
II. Plaintiffs Seek Class-Wide Prospective Relief................................................4 ARGUMENT .............................................................................................................5
I. The Proposed Class Is So Numerous That Joinder of All Proposed Class Members Is Impracticable. ..............................................................................7
II. Claims by The Proposed Class Raise Common Questions That Will Generate Common Answers..........................................................................10
III. The Named Plaintiffs’ Claims Are Typical of the Claims of the Proposed Class...............................................................................................................14
IV. The Named Plaintiffs Are Competent and Dedicated Class Representatives. .............................................................................................17
V. Certification of the Class for Prospective Relief is Appropriate Under Rule 23(b)(2). ................................................................................................19
VI. Plaintiffs’ Counsel Should Be Appointed Class Counsel Under Rule 23(g)...............................................................................................................21
CONCLUSION ........................................................................................................22 CERTIFICATE OF SERVICE ................................................................................24
i

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.514 Page 7 of 32
TABLE OF AUTHORITIES
Cases Allen v. Leis, 204 F.R.D. 401 (S.D. Ohio 2001) ........................................... 8, 11, 20 Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997)...........................................19 Amgen Inc. v. Conn. Retirement Plans & Trust Funds, 568 U.S. 455
(2013) .................................................................................................................6 Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48 (3d Cir. 1994)................................20 Beattie v. CenturyTel, Inc., 511 F.3d 554 (6th Cir. 2007) ................................ 15, 18 Brown v. City of Detroit, No. 10–12162, 2012 WL 4470433
(E.D. Mich. Sept. 27, 2012) ...................................................................... 11, 15 Calloway v. Caraco Pharm. Labs, Ltd., 287 F.R.D. 402 (E.D. Mich.
2012)...................................................................................................................8 Cmtys. for Equity v. Michigan High Sch. Athletic Ass’n, 192
F.R.D. 568 (W.D. Mich. 1999) ......................................................... 7, 8, 10, 21 Daffin v. Ford Motor Co., 458 F.3d 549 (6th Cir. 2006)...........................................7 DeShaney v. Winnebago County Dept. of Soc. Services, 489 U.S. 189
(1989) .................................................................................................................5 Eddleman v. Jefferson County, 96 F.3d 1448, 1996 WL 495013 6th Cir.
1996) .................................................................................................................15 Glover v. Johnson, 85 F.R.D. 1 (E.D. Mich. 1977) .................................... 11, 15, 20 Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402 (6th Cir. 2012).....................6 Gorton v. Johnson, 100 F.R.D. 801 (E.D. Mich. 1984) ................................... 11, 20 Hiatt v. Adams Cty., 155 F.R.D. 605 (S.D. Ohio 1994) .................................. passim In re Am. Med. Sys., Inc., 75 F.3d 1069 (6th Cir. 1996)..........................................17 In re Consumers Power Co. Sec. Litig., 105 F.R.D. 583 (E.D. Mich. 1985) ............7 Johnson v. City of Opelousas, 658 F.2d 1065 (5th Cir. 1981) ............................7, 21 Miller v. Univ. of Cincinnati, 241 F.R.D. 285 (S.D. Ohio 2006) ..............................8 Penland v. Warren Cty. Jail, 797 F.2d 332 (6th Cir. 1986) ......................................7 Peters v. Cars To Go, Inc., 184 F.R.D. 270 (W.D. Mich. 1998)...............................8 Rankin v. Rots, 220 F.R.D. 511 (E.D. Mich. 2004) .................................................15 Reese v. CNH Am., LLC, 227 F.R.D. 483 (E.D. Mich. 2005) .................................14 Richmond v. Huq, 885 F.3d 928 (6th Cir. 2018) .......................................................2
ii

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.515 Page 8 of 32
Rikos v. Procter & Gamble Co., 799 F.3d 497 (6th Cir. 2015)........................ 10, 12 Smith v. Ohio Dep’t of Rehab. and Corr., No. 2:08–CV–15, 2012 WL
1440254 (S.D. Ohio April 26, 2012) .................................................. 11, 15, 20 Wal-Mart v. Dukes, 564 U.S. 338 (2011) ........................................................ passim Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838
(6th Cir. 2013) ..............................................................................................6, 10 Williams v. City of Philadelphia, 270 F.R.D. 208 (E.D. Pa. 2010) .........................20 Constitutional Provisions US Const, Am VIII .......................................................................................... passim US Const, Am XIV ................................................................................... 1, 2, 12, 13 Rules Fed. R. Civ. P. 23(a)......................................................................................... passim Fed. R. Civ. P. 23(b) ........................................................................................ passim Fed. R. Civ. P. 23(g) ..................................................................................... 1, 21, 22 Other Authorities 8 Newberg on Class Actions § 25:20 (4th ed. 2002) ...............................................19 Michigan Joint Task Force on Jail and Pretrial Incarceration, Report and
Recommndations, p 7 (Jan. 10, 2020) ................................................................9 Nagareda, Richard A., Class Certification in the Age of Aggregate Proof,
84 N.Y.U. L. Rev. 97, 132 (2009) ...................................................................10 Newberg on Class Actions § 3:12 (5th ed.) .........................................................8, 10 Newberg on Class Actions § 4:28 (5th ed.) .............................................................19 Wagner, Peter & Widra, Emily, No need to wait for pandemics: The
public health case for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020) .....................................................................................9 Wingblad, Aileen, 23 Oakland County Jail Inmates Have Confirmed COVID-19, Oakland Press (Apr. 10, 2020) .......................................................8
iii

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.516 Page 9 of 32
INTRODUCTION This case is about Defendants’ failure to act to protect the lives of people jailed in Oakland County Jail (“the Jail”) from novel coronavirus and its resulting disease, COVID-19. Defendants have failed to respond adequately to the urgent threat posed to people confined in the Jail during this growing and lethal pandemic, making it impossible for the incarcerated class members to observe the precautionary steps necessary to keep themselves safe, such as social distancing, increased personal hygiene, sanitizing one’s environment, access to testing, and wearing protective clothing. Defendants’ disregard of the known risks of illness and death exposes jail detainees to a highly-fatal infectious disease in violation of their rights under the Eighth and Fourteenth Amendments. Named Plaintiffs challenge these unconstitutional conditions and now move for class certification under Federal Rules of Civil Procedure 23(a) and 23(b)(2). Named Plaintiffs also move for appointment of the undersigned as class counsel under Rule 23(g). Class certification is warranted because Plaintiffs seek declaratory and injunctive relief to address the unconstitutional conditions that prevail in the Jail. These conditions pose similar health risks to Plaintiffs and all putative class members, by exposing them all (as well as jail staff and the public at large) to a serious risk of infection and, as a result, serious and lasting bodily harm—up to and including death. Resolving Plaintiffs’ claims requires answering the same
1

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.517 Page 10 of 32
common questions of law and fact by finding that the conditions in the jail violate the Eighth and Fourteenth Amendments.1 A declaratory judgment and injunction as to the entire class, which should include additional remedies for the Medically Vulnerable Subclass, will address these issues for all class members. And there are far too many class members, and the class and subclasses are too fluid, to efficiently resolve these questions individually. The named Plaintiffs and their counsel are dedicated to vindicating the constitutional rights of the proposed class members, even if the named Plaintiffs’ cases are resolved. Counsel will provide quality representation for the interests of proposed class members—just as they have for other similar classes of incarcerated people around the nation and for numerous civil rights classes in the state of Michigan and beyond.
BACKGROUND AND FACTS I. Plaintiffs Are Being Detained In Extraordinarily Unsafe Conditions that
Cannot Protect Them From this Global Pandemic. The Jail is a ticking time bomb—a mass outbreak of COVID-19 is imminent due to conditions inside the jail that create a breeding ground for the rapid
1 As explained in more detail in Plaintiffs’ Complaint and Brief in Support of Emergency Motion for Temporary Restraining Order and Preliminary Injunction, the constitutional standard with respect to the Pre-trial Subclass is governed by the Fourteenth Amendment rather than the Eighth. Accordingly, that subclass need only prove that the medical need is objectively serious and the Jail’s response inadequate. See Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th Cir. 2018); TRO Br. at 18 & n.6; Compl. ¶¶ 107, 112.
2

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.518 Page 11 of 32
transmission of this virus. Necessary social distancing is impossible inside the Jail: up to sixty people are forced to live in the same jail cell where dozens of bunk beds are placed only one to three feet apart. TRO Ex. G (“Saunders Decl.”) ¶ 2; TRO Ex. H (“Arsineau Decl.”) ¶ 2. In “the tanks,” which are meant to be holding cells, there are no bunks at all—forcing people to sleep on the floor in extremely close proximity to each other. TRO Ex. D (“Lee Decl.”) ¶¶ 18–19; TRO Ex. B (“J. Cameron Decl.”) ¶ 9. Worse yet, Defendants have purposely relocated at least two named Plaintiffs, and an unknown number of other class members, from the annex building (where the outbreak is less in evidence) to “the tanks” as punishment for raising concerns about the health and safety of the jail environment in the age of coronavirus. Lee Decl. ¶¶ 9–16; J. Cameron Decl. ¶¶ 9, 26. Indeed, guards routinely use the threat of moving people into infected areas of the building as a means of control and to prevent incarcerated people from seeking improvements in the carceral environment. TRO Ex. I (“Bates Decl.”) ¶ 12; J. Cameron Decl. ¶ 10.
Toilets, sinks, and showers are shared without disinfection between each use; communal food is being partially prepared in the main kitchen where there have been confirmed cases of COVID-19; people exhibiting COVID-19 symptoms are being held in the same cells as people who are asymptomatic. Bates Decl. ¶ 9; TRO Ex. E (“M. Cameron Decl.”) ¶ 11; TRO Ex. F (“Kucharski Decl.”) ¶ 3 – 5; Arsineau Decl. ¶ 5; Saunders Decl. ¶ 2—3; Lee Decl. ¶ 23. Detained people who are extremely
3

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.519 Page 12 of 32
sick are not tested for COVID-19 and are instead ordered by jail guards to continue serving food to other inmates without proper protective equipment. Kucharski Decl. ¶ 3 – 5; Arsineau Decl. ¶ 5. Defendants do not provide free hygiene or personal sanitation supplies to anyone confined at the Jail beyond (in some areas of the jail only) a small, non-antibacterial bar of soap that is insufficient for the routine handwashing and cleaning necessary to mitigate against the spread of COVID-19. TRO Ex. C (“Briggs Decl.”) ¶ 6; Kucharski Decl. ¶ 13. There is no way for incarcerated people to keep their cells or the filthy shared toilets and showers clean and hygienic. J. Cameron Decl. ¶¶ 13, 17; Briggs Decl. ¶ 5; Kucharski Decl. ¶ 15.
Staff often do not wear protective personal equipment like gloves or masks when interacting with people confined at the Jail. J. Cameron Decl. ¶¶ 4, 7, 11. Thermometers are not being sanitized between each use. Arsineau Decl. ¶ 6. When people confined at the Jail are exposed to the virus or become symptomatic, Defendants are not promptly or properly treating them. Kucharski Decl. ¶¶ 6–9; Saunders Decl. ¶¶ 4, 9; Briggs Decl. ¶¶ 8–9. II. Plaintiffs Seek Class-Wide Prospective Relief.
The Jail’s policies and practices violate the rights of all class members to be free from cruel and unusual punishment and the resulting right, once detained, to be held in a facility that does not present egregious medical hazards. See DeShaney v. Winnebago County Dept. of Soc. Services, 489 U.S. 189, 200 (1989)
4

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.520 Page 13 of 32
(“[W]hen the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.” ). Plaintiffs seek class-wide declaratory and injunctive relief declaring the conditions under which the entire class is detained to be unconstitutional, and ordering that conditions be immediately and drastically improved. In the case of the Medically Vulnerable Subclass, given the immediate and severe health risk posed by the conditions, conditions that cannot be abated rapidly or starkly enough to protect these medically vulnerable individuals, Plaintiffs seek subclass wide relief ordering immediate release.
ARGUMENT Under Rule 23 of the Federal Rules of Civil Procedure, the party seeking class certification must show that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the named parties are typical of the claims or
defenses of the class; and
5

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.521 Page 14 of 32
(4) the named parties will fairly and adequately protect the interest of the class.
Fed. R. Civ. P. 23(a). The class must also satisfy one requirement in Rule 23(b). While the Court must perform a “rigorous analysis” to determine whether to
certify a class, Wal-Mart v. Dukes, 564 U.S. 338, 351 (2011), the Court may not require the plaintiffs to prove their claims at the class certification stage. See Amgen Inc. v. Conn. Retirement Plans & Trust Funds, 568 U.S. 455, 466 (2013) (“Merits questions may be considered . . . only to the extent . . . that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.”). At the certification stage, plaintiffs need only provide evidence to demonstrate that Rule 23 itself is satisfied; certification is not a “dress rehearsal for the trial on the merits.” In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 851–52 (6th Cir. 2013) (internal quotations and citation omitted). Moreover, “it is not always necessary . . . to probe behind the pleadings before coming to rest on the certification question, because sometimes there may be no disputed factual and legal issues that strongly influence the wisdom of class treatment.” Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 417 (6th Cir. 2012) (internal quotations and citation omitted).
Class certification is particularly favored when, as here, the named plaintiffs assert civil rights claims that are of a fleeting or transitory nature, such that
6

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.522 Page 15 of 32
mootness concerns would make it difficult or impossible for individuals to litigate the issues outside of the class context. See Johnson v. City of Opelousas, 658 F.2d 1065, 1070 (5th Cir. 1981) (“[W]e believe that the substantial risk of mootness presented by the facts of this dispute was sufficient to create a need for certification.”); see also Penland v. Warren Cty. Jail, 797 F.2d 332 (6th Cir. 1986) (citing Johnson with approval); Cmtys. for Equity v. Michigan High Sch. Athletic Ass’n, 192 F.R.D. 568, 575 (W.D. Mich. 1999). Indeed, given the “short term nature of incarceration in a county jail, a class should be certified when it is the “only vehicle whereby the legality of [a jail’s] operation can be determined.” Hiatt v. Adams Cty., 155 F.R.D. 605, 608–09 (S.D. Ohio 1994). I. The Proposed Class Is So Numerous That Joinder of All Proposed Class
Members Is Impracticable. Plaintiffs’ proposed class is sufficiently numerous to make joinder impracticable. See Fed. R. Civ. P. 23(a)(1). Although there is no strict numerical test, “substantial” numbers usually satisfy the numerosity requirement. Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006). Where plaintiffs can show that the number of potential class members is large, the numerosity requirement is met “even if plaintiffs do not know the exact figure.” In re Consumers Power Co. Sec. Litig., 105 F.R.D. 583, 601 (E.D. Mich. 1985). “[A] class numbering more than 40 members usually satisfies the impracticability requirement, and classes containing 100 or more members routinely satisfy the numerosity requirement.”
7

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.523 Page 16 of 32
Peters v. Cars To Go, Inc., 184 F.R.D. 270, 276 (W.D. Mich. 1998) (citation omitted); see Calloway v. Caraco Pharm. Labs, Ltd., 287 F.R.D. 402, 406 (E.D. Mich. 2012); Cmtys. For Equity, 192 F.R.D. at 571 (“Numbers alone . . . will dictate impracticability when the numbers are large.”). Courts also consider “judicial economy arising from the avoidance of a multiplicity of actions.” Newberg on Class Actions § 3:12 (5th ed.); see Calloway, 287 F.R.D. at 406.
Furthermore, the Rule 23(a)(1) certification requirement is satisfied where additional factors make joinder impracticable. In particular, “[j]oinder of future class members is inherently impracticable.” Miller v. Univ. of Cincinnati, 241 F.R.D. 285, 290 (S.D. Ohio 2006). Thus, due to the fluid nature of a jail population, actions seeking prospective relief regarding transitory jail time are especially well-suited for class action status. See Hiatt, 155 F.R.D. at 608; see also Allen v. Leis, 204 F.R.D. 401, 406 (S.D. Ohio 2001).
The proposed class easily meets the Rule 23(a)(1) numerosity requirement. According recent reporting, the population in Jail stands at approximately 830 human beings.2 And approximately 50% of all people incarcerated in Michigan’s
2 See Aileen Wingblad, 23 Oakland County Jail Inmates Have Confirmed COVID19, Oakland Press (Apr. 10, 2020), available at https://www.theoaklandpress.com/ news/coronavirus/23-oakland-county-jail-inmates-have-confirmed-covid19/article_9cb8f138-7b69-11ea-ab69-0f769f8495c1.html.
8

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.524 Page 17 of 32
jails are pre-trial detainees,3 meaning that the Pre-Trial Subclass and the PostConviction Subclass each constitute approximately half of the class as whole.
As to the Medically Vulnerable Subclass, although its exact size cannot be known in advance, in just one section of the Annex building at the jail (the smaller of the two Jail buildings), there are approximately 40 people who are taking prescription medication for various medical conditions. J. Cameron Decl. ¶ 16. And demographic data of jail populations more generally confirms that well over 30% of detained populations typically suffer from conditions that render them medically vulnerable to the coronavirus, suggesting that the Medically Vulnerable Subclass likely numbers well over one hundred given the overall jail population. See Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020), available at www.prisonpolicy.org/blog/2020/03/06/pandemic/. When the additional future class members who will continue to be arrested and detained during this health pandemic are included, the class likely exceeds 1,000 and the subclasses number in the hundreds. Because the number of potential plaintiffs in
3 See Michigan Joint Task Force on Jail and Pretrial Incarceration, Report and Recommndations, p 7 (Jan. 10, 2020), available at https://courts.michigan.gov/ News-Events/Documents/final/Jails%20Task%20Force%20Final%20Report% 20and%20Recommendations.pdf.
9

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.525 Page 18 of 32
the proposed class vastly exceeds the number who could be joined practicably, Rule 23(a)(1) is satisfied here. II. Claims by The Proposed Class Raise Common Questions That Will
Generate Common Answers. The claims asserted on behalf of the proposed class include common questions of law and fact that satisfy Rule 23(a)(2). Commonality requires that the class members’ claims “depend on a common contention” of fact or law such that “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 564 U.S. at 350. Courts must “start from the premise that there need be only one common question to certify a class.” Whirlpool, 722 F.3d at 853. Courts find common questions of both law and fact “at a high level of generality.” Newberg on Class Actions § 3:19 (5th ed.) (internal quotations and citation omitted). Commonality also requires these common questions “to generate common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 349 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009) (emphasis in original)). These “common answers” must “relate[] to the actual theory of liability in the case.” Rikos v. Procter & Gamble Co., 799 F.3d 497, 505 (6th Cir. 2015); see also Cmtys. For Equity, 192 F.R.D. at 572; Newberg on Class Actions § 3:20 (5th ed.) (“When the party opposing the class has engaged in some course of conduct that affects a
10

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.526 Page 19 of 32
group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persona affected.”).
Accordingly, courts in the Sixth Circuit have repeatedly certified class actions in which incarcerated people challenge the circumstances or conditions of their detention. See Brown v. City of Detroit, No. 10–12162, 2012 WL 4470433 (E.D. Mich. Sept. 27, 2012) (class of detainees challenging their detention for more than 48 hours without probable cause); Smith v. Ohio Dep’t of Rehab. and Corr., No. 2:08–CV–15, 2012 WL 1440254 (S.D. Ohio April 26, 2012) (class of prisoners suffering exposure to high levels of asbestos); Hiatt, 155 F.R.D. at 609 (finding commonality satisfied where “[t]he conditions, policies and practices challenged” in the carceral setting impacted all detained people); Allen, 204 F.R.D. at 406–07 (class of detainees challenging payments associated with their detention); Gorton v. Johnson, 100 F.R.D. 801 (E.D. Mich. 1984) (class of incarcerated people challenging mental health treatment provided to them); Glover v. Johnson, 85 F.R.D. 1, 5-6 (E.D. Mich. 1977) (class of female prisoners who challenged the Michigan Department of Corrections’ unconstitutional policies in providing women with inferior educational and vocational programs).
At the core of this case is the common core of facts inflicting constitutional injury on each member of the proposed class, namely the unsafe and unhygienic conditions prevailing in the Jail and the concomitant risks of contracting COVID-
11

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.527 Page 20 of 32
19. All class members suffer the same injury, namely an unconstitutional risk of exposure to an extraordinarily dangerous disease. And all members of the Medically Vulnerable Subclass share a greatly elevated actuarial risk or suffering death or permanent organ damage or failure.
These injuries are “capable of classwide resolution,” Rikos, 799 F.3d at 505 (quoting Dukes, 564 U.S. at 350), because the Court can issue a single declaration finding that the conditions in the Jail to be in violation of the Eigth and Fourteenth Amendments and ordering immediate measures to address the conditions. And a single additional remedy mandating release of the Medically Vulnerable Subclass can address the increased risk to the subclass. In sum, this case goes far beyond the “single common question [that] will do.” Dukes, 564 U.S. at 359 (internal quotations and citation omitted). Indeed, most questions of fact and law that will arise in this suit are common across the class. Among the most central common questions of fact are:
• What measures Defendants implemented in the Jail in response to the COVID-19 crisis;
• Whether the conditions in the Jail are sufficient to prevent an unreasonable risk of the spread of COVID-19;
• Whether Defendants’ practices during the COVID-19 pandemic expose people jailed at the Jail to a substantial risk of serious harm;
12

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.528 Page 21 of 32
• Whether Defendants knew of and disregarded a substantial risk of serious harm to the safety and health of the class and subclasses; and
• Whether COVID-19 presents a heightened risk of harm and potential death to the Medically Vulnerable Subclass.
Among the most important common questions of law are: • As to the entire class: whether the conditions in which the class is confined are objectively unreasonable given the health risks to class members.4
• As to the Pre-Trial Subclass: whether Defendants are liable under the Fourteenth Amendment for the objectively unreasonable conditions of confinement that are very likely to cause serious illness and needless suffering.
• As to the Post-Conviction Subclass: whether Defendants are liable
4 As explained in footnote 1, supra, and in the merits briefing, the Eighth Amendment governs the constitutionality of the terms of confinement for people who have been convicted whereas the Fourteenth Amendment governs the constitutionality of the terms of confinement for people still awaiting trial. To find an Eighth Amendment violation as to the Post-Conviction Subclass, this court must find both that the conditions in the Jail are objectively unreasonable and that the Jail was subjectively aware of and disregarded the risks. To find a Fourteenth Amendment violation as to the Pre-Trial Subclass, Plaintiffs position is that only the first part of that inquiry (objective unreasonableness) applies. The objective unreasonableness component of the inquiry is common to all subclasses. See Compl. ¶¶ 107, 112; TRO Br. at 18 & n.6.
13

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.529 Page 22 of 32
under the Eighth Amendment for their deliberate indifference to conditions of confinement that are very likely to cause serious illness and needless suffering. • As the the Medically Vulnerable Subclass: whether the threat of harm or death to members of the subclass is so severe that the only constitutionally permissible way to protect them is to release them from custody immediately. In short, common questions of fact and law pervade this case, satisfying the Rule 23(a)(2) commonality requirement. III. The Named Plaintiffs’ Claims Are Typical of the Claims of the Proposed Class. The Plaintiffs in this case have claims typical of all of the members of the class, i.e., of all of the people incarcerated in the Jail. To meet the typicality requirement, the named plaintiffs’ claims must be “typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The commonality and typicality requirements of Rule 23(a) tend to merge.” Dukes, 564 U.S. at 349 n.5. And, “[l]ike the test for commonality, the test for typicality is not demanding and the interests and claims of the various plaintiffs need not be identical.” Reese v. CNH Am., LLC, 227 F.R.D. 483, 487 (E.D. Mich. 2005). “A claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if [the] claims are
14

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.530 Page 23 of 32
based on the same legal theory.” Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007). So long as the class and its representatives have similar legal theories arising from the same practice or course of conduct, the requirement is met “even if substantial factual distinctions exist between the named and unnamed class members.” Rankin v. Rots, 220 F.R.D. 511, 518 (E.D. Mich. 2004).
Courts in the Sixth Circuit have consistently found prisoners’ claims to be “typical” of the class they propose to represent where the claims arise from policies or conditions at an institution affecting all members of the proposed class. In Glover, 85 F.R.D. at 5-6, the court held that plaintiffs’ claims regarding the Department of Corrections’ policies were typical of those of the class, regardless of whether each class member was “identically situated.” In Smith, 2012 WL 1440254, the court found that a prisoner’s claims regarding asbestos at the prison were typical of those of the class of prisoners he sought to represent because they arose “from the same events, practice or course of conduct.” And in Brown, 2012 WL 4470433, the court held that the named plaintiff raised claims that were typical of those of the proposed class of pretrial detainees, i.e., that he was detained for a substantial amount of time without bedding and for more than 48 hours without a probable cause hearing. See also Eddleman v. Jefferson County, 96 F.3d 1448, 1996 WL 495013 at *4 (6th Cir. 1996) (unpublished) (typicality requirement met
15

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.531 Page 24 of 32
where plaintiffs challenged county jail’s blanket strip search policy even though individual searches varied in scope).
Each named Plaintiff’s claim is based on the same or similar conditions in the Jail that do not provide adequate protection for the health and safety of the people incarcerated their. By the very nature of a contagion, every named Plaintiff (and every class member) is subject to harm as a result of the unhygienic conditions in the Jail. To the extent conditions vary in different buildings or sections of the jail, all detained people are still similarly impacted given that transmission vectors like guards, contract workers like Aramark, incarcerated people, and supplies move between the buildings and section. See J Cameron Decl. ¶¶ 4–5, 25; M. Cameron Decl. ¶¶ 11–12; Lee Decl. ¶¶23–24. In fact, the evidence shows that the guards at the Jail specifically use the fact that an outbreak has occurred in one building as a threat to suppress complaints by, and to punish, people detained in the other building who are seeking safer conditions there. J. Cameron Decl. ¶¶ 8–10; Lee Decl. ¶¶ 9–18; Briggs Decl. ¶ 8. And the Plaintiffs include people detained in both buildings, see, e.g., M. Cameron Decl. ¶ 1 (annex); Briggs Decl. ¶ 2 (main building); J. Cameron Decl. ¶¶ 3, 9 (has been housed in both), people detained pre- and post-conviction, see, e.g., Briggs Decl. ¶ 1 (pretrial); Lee Decl. ¶ 2 (post-conviction), and individuals who are medically vulnerable and others who are not, see, e.g., J. Cameron Decl. ¶ 2 (medically
16

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.532 Page 25 of 32
vulnerable); Sauders Decl. (mentioning no vulnerabilities). In other words, the named Plaintiffs’ experiences exemplify the ways that the Jail’s Policies and Practices harm the members of the class and demonstrate that the harms are widespread across all types of class members. IV. The Named Plaintiffs Are Competent and Dedicated Class
Representatives. The named Plaintiffs also fulfill the final requirement under Rule 23(a): they “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). To determine the issue of adequacy of representation, the Sixth Circuit has articulated two criteria: “1) the representative must have common interests with unnamed members of the class[;] and 2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel.” In re Am. Med. Sys., Inc., 75 F.3d 1069, 1083 (6th Cir. 1996) (internal quotations and citation omitted). “The adequate representation requirement overlaps with the typicality requirement because in the absence of typical claims, the class representative has no incentives to pursue the claims of the other class members.” Id. In this case, the first adequacy criterion is met for reasons set forth in the commonality and typicality discussions above. The named Plaintiffs do not have interests that are in any way contrary to the rest of the class. The relief they seek— declaratory and injunctive relief from unconstitutional policies and practices—
17

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.533 Page 26 of 32
would benefit the entire class equally. There are no conflicts between the named Plaintiffs and the class.
The named Plaintiffs are also ready and willing to take an active role in litigating this case, including by responding to discovery as needed. Each has met with counsel multiple times by phone (the only method of communication possible in light of the pandemic crisis), are aware of the duties and obligations that apply to representative plaintiffs in class litigation, and are committed to seeking relief on behalf of all class members.
The second adequacy criterion, adequacy of counsel, is also clearly satisfied here. Adequacy of counsel is met where “class counsel are qualified, experienced and generally able to conduct the litigation, and to consider whether the class members have interests that are not antagonistic to one another.” Beattie, 511 F.3d at 562-63. Plaintiffs’ counsel are highly qualified and experienced civil rights attorneys who are able and willing to conduct this litigation on behalf of the class. Plaintiffs’ counsel from the American Civil Liberties Union Fund of Michigan; Civil Rights Corps; the Advancement Project; Pitt, McGehee, Palmer & Rivers PC, and LaRene & Kriger, PLC; collectively have extensive experience litigating complex class action cases and civil rights cases, including cases concerning the constitutional rights of incarcerated people. Ex. 1 (Advancement Project) ¶¶ 2, 4–6 Ex. 2 (ACLU) ¶¶ 2, 4–5; Ex. 3 (Civil Rights Corps) ¶ 4; Ex. 4 (Pitt McGehee) ¶¶
18

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.534 Page 27 of 32
2–5, 12, 13, 28. As evidenced by the cited declarations and the cases noted therein, counsel have a history of zealous advocacy on behalf of their clients, as evidenced by the filings in those cases. Accordingly, Plaintiffs meet Rule 23(a)(4)’s adequacy requirement. V. Certification of the Class for Prospective Relief is Appropriate Under
Rule 23(b)(2). The proposed class in this case is ideal for certification under Rule 23(b)(2). To certify a class under Rule 23(b)(2), the party seeking class certification must show that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “This is a simple inquiry in most cases.” Newberg on Class Actions § 4:28 (5th ed.). The requirement of a generally applicable set of actions “ensures that the class’s interests are related in a manner that makes aggregate litigation appropriate . . . and therefore efficient.” Id. Thus, “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Dukes, 564 U.S. at 360. As the Supreme Court has recognized, civil rights cases are “prime examples” of Rule 23(b)(2) class actions. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997); see Dukes, 564 U.S. at 361; 8 Newberg on Class Actions § 25:20 (4th ed. 2002) (“Rule 23(b)(2) was drafted specifically to facilitate relief in
19

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.535 Page 28 of 32
civil rights suits.”). In actions primarily seeking injunctive relief, the (b)(2) requirement is “almost automatically satisfied.” Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 58 (3d Cir. 1994). “What is important is that the relief sought by the named plaintiffs should benefit the entire class.” Id. at 59.
“Numerous courts have held that Rule 23(b)(2) is an appropriate vehicle in actions challenging prison conditions.” Williams v. City of Philadelphia, 270 F.R.D. 208, 222 (E.D. Pa. 2010). Within the Sixth Circuit, many courts have certified prisoner class actions under Rule 23(b)(2) where the claims challenged conditions affecting the larger population of incarcerated people. See, e.g., Glover, 85 F.R.D. 1; Gorton, 100 F.R.D. 801; Hiatt, 155 F.R.D. 605; Allen, 204 F.R.D. 401; Smith, 2012 WL 1440254.
So too here, the class proposed here is exactly the kind of class that Rule 23(b)(2) embraces. See id. The class’s interests are related in a manner that warrants aggregate litigation. Defendants have “alleged that the policies and practices of the Defendants and the condition existing at the jail affected the class as a whole.” Hiatt, 155 F.R.D. at 610. Specifically, Plaintiffs allege that Defendants have permitted unsafe, indeed, lethal, conditions to persist within the jail. Injunctive and declaratory relief are appropriate to the class precisely because the only adequate relief here is enjoining Defendants’ unconstitutional policies and practices across the board and declaring their unconstitutionality. “Indeed, the
20

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.536 Page 29 of 32
remedy sought, to be effective, must be system wide rather than individually oriented” in light of the highly contagious nature of the coronavirus. Id.
Furthermore, it is far more efficient for this Court to grant injunctive and declaratory relief protecting the entire class than to extend that relief piecemeal through individual suits. Class certification is also necessary because the inherently transitory nature of the constitutional harms at issue here could mean that any individual class member’s claim might become moot before it could be addressed on the merits and because new class members face the prospect of immediate harm through unconstitutional exposure to the conditions in the jail the moment they are detained. See Johnson, 658 F.2d at 1070 (5th Cir. 1981); Cmtys. for Equity, 192 F.R.D. at 575; Hiatt, 155 F.R.D. at 608–09. Accordingly, this Court should certify the class under Rule 23(b)(2). VI. Plaintiffs’ Counsel Should Be Appointed Class Counsel Under Rule
23(g). Federal Rule of Civil Procedure 23(g) requires that the court appoint class counsel for any class that is certified. Fed. R. Civ. P. 23(g)(1). Class counsel must “fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B). A court must consider factors including: (1) “the work counsel has done in identifying or investigating potential claims in this action”; (2) “counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action”; (3) “counsel’s knowledge of the applicable law”;
21

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.537 Page 30 of 32
and (4) “the resources that counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A).
The undersigned counsel satisfy these requirements. First, Plaintiffs’ counsel have interviewed Plaintiffs and other class members, performed relevant legal research and drafting, and investigated the facts and legal claims raised in this case in detail, despite the significant practical obstacles posed by the nature of the current global health crisis. Ex. 2 ¶ 6 Ex. 3 ¶ 5. Second, Plaintiffs’ counsel have significant experience litigating class action and civil rights actions, and have extensive and specific experiencing litigating cases involving the rights of incarcerated peoples. Ex. 1 ¶¶ 2, 4–6 Ex. 2 ¶¶ 2, 4–5; Ex. 3 ¶ 4; Ex. 4 ¶¶ 2–5, 12, 13, 28; supra Section IV. Finally, Plaintiffs’ counsel are prepared to contribute significant resources to the representation of this class. Ex. 1 ¶ 7; Ex. 2 ¶ 6; Ex. 3 ¶ 6; Ex. 4 ¶¶ 6. Therefore, Plaintiffs’ counsel satisfies the four criteria in Rule 23(g), and they respectfully request appointment as class counsel.
CONCLUSION For the reasons set forth above, Plaintiffs respectfully request that this Court certify the class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. Plaintiffs also request that undersigned counsel be appointed class counsel under Rules 23(a)(4) and (g). In the alternative, if Defendants contest material issues of
22

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.538 Page 31 of 32

fact necessary for class certification, Plaintiffs request the opportunity to conduct

discovery related to class certification and a subsequent hearing.

Respectfully Submitted,

/s/ Krithika Santhanam Krithika Santhanam (DC Bar No. 1632807)* Thomas B. Harvey (MBE #61734MO)* Advancement Project National Office 1220 L Street, N.W., Suite 850 Washington, DC 20005 Tel: (202) 728-9557 Ksanthanam@advancementproject.org Tharvey@advancementproject.org
/s/ Philip Mayor Philip Mayor (P81691) Daniel S. Korobkin (P72842) American Civil Liberties Union
Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6803 pmayor@aclumich.org dkorobkin@aclumich.org

/s/ Cary S. McGehee Cary S. McGehee (P42318) Kevin M. Carlson (P67704) Pitt, McGehee, Palmer, Bonanni & Rivers, PC 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 cmcgehee@pittlawpc.com kcarlson@pittlawpc.com
/s/ Allison L. Kriger________ Allison L. Kriger (P76364) LaRene & Kriger, PLC 645 Griswold, Suite 1717 Detroit, MI 48226 (313) 967-0100 Allison.kriger@gmail.com

/s/ Alexandria Twinem Alexandria Twinem (D.C. Bar No. 1644851)* Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Tel: 202-894-6126 Fax: 202-609-8030 alexandria@civilrightscorps.org

Attorneys for Plaintiffs/Petitioners

*Applications for admission forthcoming

Dated: April 17, 2020

23

Case 2:20-cv-10949-LVP-MJH ECF No. 6 filed 04/17/20 PageID.539 Page 32 of 32
CERTIFICATE OF SERVICE I affirm that this motion for class certification and supporting brief and exhibits will be served concurrently with, and in all the same manners as, the service of the Summons and Complaint, and the Emergency Motion for Temporary Restraining Order and Preliminary Injunction in this matter.
/s/ Cary S. McGehee Cary S. McGehee
24

Case 2:20-cv-10949-LVP-MJH ECF No. 6-1 filed 04/17/20 PageID.540 Page 1 of 1

Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4

INDEX OF EXHIBITS
Declaration of Thomas B. Harvey in Support of Plaintiffs’ Motion for Class Certification
Declaration of Daniel S. Korobkin in Support of Plaintiffs’ Motion for Class Certification
Declaration of Alexandria Twinem in Support of Plaintiffs’ Motion for Class Certification
Declaration of Cary S. McGehee in Support of Plaintiffs’ Motion for Class Certification

Case 2:20-cv-10949-LVP-MJH ECF No. 6-2 filed 04/17/20 PageID.541 Page 1 of 4
EXHIBIT 1: DECLARATION OF THOMAS B. HARVEY IN SUPPORT OF PLAINTIFFS’ MOTION
FOR CLASS CERTIFICATION

Case 2:20-cv-10949-LVP-MJH ECF No. 6-2 filed 04/17/20 PageID.542 Page 2 of 4
DECLARATION OF THOMAS B. HARVEY IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
I, Thomas B. Harvey, declare as follows: 1. I am the Program Director for the Justice Project at Advancement Project, and one of the plaintiffs’ attorneys in this case. I submit this declaration in support of Plaintiffs’ motion for class certification to demonstrate that Advancement Project’s attorneys, in conjunction with co-counsel, satisfy the requirements of Rule 23(a)(4) and Rule 23(g). 2. Advancement Project (“AP”) is a non-profit multi-racial civil rights organization based in Washington, D.C. Rooted in the great human rights struggles for equality and justice, AP exists to fulfill America’s promise of a caring, inclusive and just democracy. AP provides legal, organizing, and communications support to grassroots organizations across the country in its Power and Democracy Project, Justice Project, Opportunity to Learn Project, and the Immigrant Justice Project. Since 1999, AP has regularly filed federal litigation, including class action litigation, written reports in educating the public on issues such as voting rights, school discipline, restoration of civil rights for returning citizens, and criminalization of undocumented persons. AP staff have testified before state and federal legislative bodies on civil rights and racial justice. 3. Advancement Project has assigned two highly qualified attorneys to litigate this case: myself and Krithika Santhanam.
1

Case 2:20-cv-10949-LVP-MJH ECF No. 6-2 filed 04/17/20 PageID.543 Page 3 of 4
4. I have over 11 years of civil rights class action litigation experience. While at Advancement Project, I have been counsel for two federal civil rights class action lawsuits: Dixon v. City of St. Louis, 4:19-cv-00112 ( E.D. Mo. 2019) and Swain v. Junior 1:20-cv-21457 ( S.D. Fla. 2020). In Dixon, I conducted an investigation into the use of secured money bail to detain impoverished people in St. Louis. This investigation has included interviews with witnesses, experts, government employees, people jailed for their poverty and their families, local attorneys, community members, experts in the functioning of courts and jails, and national experts in post-arrest procedures and constitutional law. Swain v. Junior challenges jail conditions in Miami-Dade’s Metro West Detention Center during the Covid-19 pandemic.
5. I have been counsel in a number of recent constitutional civil rights class action lawsuits raising similar and related issues. A small sampling of these cases includes: Pierce et al. v. City of Velda City, 2015 WL 10013006 (E.D. Mo. 2015); See, e.g., Templeton v. Dotson, 4:14-cv-01019 (E.D. Mo 2014, settlement approved in 2014); Jenkins et al. v. City of Jennings, 15-cv-252-CEJ (E.D. Mo. 2015, settlement approved in 2016); Fant et al. v. City of Ferguson, 15-cv-253AGF (E.D. Mo. 2015); Thomas et al. v. St. Ann et al., 4:16-cv-1302 (E.D. Mo. 2016); Powell v. City of St. Ann 4:15-cv-840 (E.D. Mo. 2015, settlement approved in 2018 ); Pierce v. City of Velda City, 4:15-CV-570 (E.D. Mo. 2015, settlement
2

Case 2:20-cv-10949-LVP-MJH ECF No. 6-2 filed 04/17/20 PageID.544 Page 4 of 4
approved in 2015); White v. City of Pine Lawn, 14SL-CC04194 (St. Louis Co. Cir. Ct., Dec. 2014); Pruitt v. City of Wellston, 14SL-CC04192 (St. Louis Co. Cir. Ct., Dec. 2014); Lampkin v. City of Jennings, 14SL-CC04207 (St. Louis Co. Cir. Ct., Dec. 2014); Wann v. City of St. Louis, 1422-CC10272 (St. Louis City Cir. Ct., Dec. 2014, settlement approved in 2015); Reed v. City of Ferguson, 14SL-CC04195 (St. Louis Co. Cir. Ct., Dec. 2014, settlement approved in 2020); Eldridge v. City of St. John, 15SL-00456 (St. Louis Co. Cir. Ct., Feb. 2015, settlement approved in 2018); and Watkins v. City of Florissant, 16SL-CC00165 (St. Louis Co. Cir. Ct., Jan. 2016, Settlement approved in 2017), among others.
6. Ms. Santhanam is a staff attorney at the Justice Project and the Schoolhouse-to-Jailhouse track project at Advancement Project. Prior to joining Advancement Project, she was an associate at Arnold & Porter Kaye Scholer LLP working on complex commercial litigation matters. While at Arnold & Porter, she was exposed daily to federal litigation, including several class actions.
7. Advancement Project is prepared to contribute significant resources to litigating this case.
I declare under penalty of perjury that the forgoing is true and correct to the best of my knowledge.

/s/ Thomas B. Harvey Thomas B. Harvey

4-15-2020 Date
3

Case 2:20-cv-10949-LVP-MJH ECF No. 6-3 filed 04/17/20 PageID.545 Page 1 of 4
EXHIBIT 2: DECLARATION OF DANIEL S. KOROBKIN IN SUPPORT OF
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:20-cv-10949-LVP-MJH ECF No. 6-3 filed 04/17/20 PageID.546 Page 2 of 4
DECLARATION OF DANIEL S. KOROBKIN IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
I, Daniel S. Korobkin, declare as follows: 1. I am the legal director at the American Civil Liberties Union Fund of Michigan (“ACLU of Michigan”) and one of the plaintiffs’ attorneys in this case. I submit this declaration in support of Plaintiffs’ motion for class certification to demonstrate that the ACLU of Michigan’s attorneys, in conjunction with cocounsel, satisfy the requirements of Rule 23(a)(4) and Rule 23(g). 2. The ACLU of Michigan and its attorneys are experienced in class action litigation. Among the class action lawsuits litigated by the ACLU of Michigan in recent years have been Dowdy-El v. Caruso, E.D. Mich. No. 06-cv11765 (halal food for Muslim prisoners); Duncan v. Michigan, Ingham Co. Cir. Ct. No. 07-242-CZ (indigent defense); Hill v. Snyder, E.D. Mich. No. 10-cv-14568 (juvenile life without parole); Barry v. Lyon, E.D. Mich. No. 13-cv-13185 (public assistance); and Hamama v. Adducci, E.D. Mich. No. 17-cv-11910 (deportation to Iraq); see also Ross v. Blount, E.D. Mich. No. 19-cv-11076 (unconstitutional bail practices; class certification pending). 3. The ACLU of Michigan has assigned two highly qualified attorneys to litigate this case: myself, and Philip Mayor. 4. I am the legal director at the ACLU of Michigan. I have over 13 years of legal experience, including 11 years in civil rights litigation with the ACLU. I
1

Case 2:20-cv-10949-LVP-MJH ECF No. 6-3 filed 04/17/20 PageID.547 Page 3 of 4
have litigated on behalf of plaintiff classes in McBurrows v. Detroit Public Schools, E.D. Mich. No. 09-cv-14863; Hill v. Snyder, E.D. Mich. No. 10-cv14568; Morningside Community Organization v. Sabree, Wayne Co. Cir. Ct. No. 16-008807-CH; and D.R. v. Michigan Department of Education, E.D. Mich. No. 16-cv-13694; see also Ross v. Blount, E.D. Mich. No. 19-cv-11076 (putative class action).
5. Mr. Mayor is a senior staff attorney at the ACLU of Michigan. He has over 9 years of legal experience, including clerkships at the federal trial-level, the Ninth Circuit Court of Appeals, and the California Supreme Court. He has served as litigator at the U.S. Department of Labor and for a major international union. He is lead counsel in the ACLU of Michigan’s class action lawsuit against Michigan’s 36th District Court concerning the court’s unconstitutional use of cash bail and the resulting pre-trial incarceration. Ross v. Blount, E.D. Mich. No. 19-cv11076. He has taken cases to trial in various forums, and has served as lead counsel in multiple matters before the federal courts of appeals, including the Sixth Circuit. See Hopkins Cty. Coal, LLC v. Acosta, 875 F.3d 279 (6th Cir. 2017).
6. Through our “Smart Justice” Campaign, the ACLU of Michigan has challenged overincarceration in our criminal legal system in numerous fora. And since the outbreak of the coronavirus epidemic, the ACLU of Michigan has been a leading organization in responding to the resulting crisis in detention facilities, including through litigating constitutional claims similar to the ones at issue in this
2

Case 2:20-cv-10949-LVP-MJH ECF No. 6-3 filed 04/17/20 PageID.548 Page 4 of 4
case. See, e.g., Albino-Martinez v. Adducci, E.D. Mich. No. 20-cv-10893 (challenging the detention of medically vulnerable ICE detainees in Michigan jails in light of the conditions prevailing in the jails) . The ACLU of Michigan’s attorneys are highly experienced, and highly knowledgeable about the law, in handling class actions, complex litigation, cases seeking declaratory and injunctive relief, and cases involving the rights of incarcerated people. The ACLU of Michigan is fully dedicated to pursuing the relief sought in this lawsuit on behalf of the putative class, and is prepared to commit substantial resources to do so.
I declare under penalty of perjury that the foregoing is true and correct. Executed on this _15th___ day of April, 2020.
/s/Daniel S. Korobkin Daniel S. Korobkin
3

Case 2:20-cv-10949-LVP-MJH ECF No. 6-4 filed 04/17/20 PageID.549 Page 1 of 3
EXHIBIT 3: DECLARATION OF ALEXANDRIA TWINEM IN SUPPORT OF PLAINTIFF'S MOTION FOR CLASS CERTIFICATION

Case 2:20-cv-10949-LVP-MJH ECF No. 6-4 filed 04/17/20 PageID.550 Page 2 of 3
DECLARATION OF ALEXANDRIA TWINEM 1) My name is Alexandria Twinem and, on behalf of Civil Rights Corps, I am one of the counsel for the named Plaintiffs and the putative Class members in this case. I submit this Declaration in support of the motion for class certification. 2) I received a Juris Doctor degree from Stanford University. After graduating law school, I clerked for Judge Stephen Reinhardt on the Court of Appeals for the Ninth Circuit and for Judge Alison J. Nathan in the Southern District of New York. I then served as the Appellate and Constitutional Litigation Fellow at Gupta Wessler PLLC in Washington, DC. 3) I have been an attorney at Civil Rights Corps, a non-profit civil rights organization based in Washington, D.C., since October 2019. I have worked on numerous civil rights cases, including putative class actions. 4) I currently serve as counsel on several constitutional civil rights lawsuits and putative class actions: McNeil v. Community Probation Services, No. 18-cv-33 (M.D. Tenn. Mar. 25, 2020); Parga v. Board of County Commissioners of the County of Tulsa, No. 18-cv-298 (N.D. Okla. Apr. 3, 2020); and Swain v. Junior, No. 20-cv-21457 (S.D. Fla. Apr. 14, 2020). 5) Civil Rights Corps has devoted significant time and resources to becoming familiar with the conditions in the Oakland County Jail, the health and safety risks that the coronavirus poses to people in jails, and the substantive and procedural law of challenging unconstitutional jail conditions. 6) Civil Rights Corps has sufficient funds available to litigate this case and is prepared to contribute significant resources to litigating this case.
1

Case 2:20-cv-10949-LVP-MJH ECF No. 6-4 filed 04/17/20 PageID.551 Page 3 of 3

I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

/s/ Alexandria Twinem Alexandria Twinem

Date: April 16, 2020

2

Case 2:20-cv-10949-LVP-MJH ECF No. 6-5 filed 04/17/20 PageID.552 Page 1 of 9
EXHIBIT 4: DECLARATIONS OF CARY S. MCGEHEE IN SUPPORT
OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

Case 2:20-cv-10949-LVP-MJH ECF No. 6-5 filed 04/17/20 PageID.553 Page 2 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 6-5 filed 04/17/20 PageID.554 Page 3 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 6-5 filed 04/17/20 PageID.555 Page 4 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 6-5 filed 04/17/20 PageID.556 Page 5 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 6-5 filed 04/17/20 PageID.557 Page 6 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 6-5 filed 04/17/20 PageID.558 Page 7 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 6-5 filed 04/17/20 PageID.559 Page 8 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 6-5 filed 04/17/20 PageID.560 Page 9 of 9

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 12 filed 04/17/20 PageID.626 Page 1 of 7

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON, RICHARD BRIGGS, RAJ LEE, MICHAEL CAMERON, and MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,

Plaintiffs, v.

Civil Case No. 20-10949 Honorable Linda V. Parker

MICHAEL BOUCHARD, CURTIS D. CHILDS, and OAKLAND COUNTY,

Defendants. ____________________________________/

OPINION AND ORDER

On this date, Plaintiffs filed a putative class action complaint, raising grave

concerns about the conditions in the Oakland County Jail in the face of the novel

coronavirus (COVID-19) pandemic. Plaintiffs are Oakland County Jail pretrial or

convicted detainees. Plaintiffs seek to represent a class of all current and future

Oakland County Jail (hereafter also “Jail”) detainees, as well as the following sub-

classes:

 The First Subclass (“Pre-trial Subclass”) is defined as “All current and future persons detained at the Oakland County Jail during the course of the COVID-19 pandemic who have not yet been convicted of the offense for which they are currently held in the Jail.”

Case 2:20-cv-10949-LVP-MJH ECF No. 12 filed 04/17/20 PageID.627 Page 2 of 7
 The Second Subclass (“Post-conviction Subclass”) is defined as “All current and future persons detained at the Oakland County Jail during the course of the COVID-19 pandemic who have been sentenced to serve time in the Jail or who are otherwise in the Jail as the result of an offense for which they have already been convicted.”
 The Third Subclass (“Medically-Vulnerable Subclass”) is defined as: “All members of the Jail class who are also over the age of fifty or who, regardless of age, experience an underlying medical condition that places them at particular risk of serious illness or death from COVID-19 ….”
Plaintiffs also filed an emergency motion for temporary restraining order (“TRO”)
in which they ask the Court to order (a) the release of members of the Medically-
Vulnerable Subclass pending briefing and argument and (b) the undertaking of
certain measures to improve hygiene and safety at the Jail.
Having reviewed Plaintiffs’ Complaint and pending motion, the Court is
granting at this time Plaintiffs’ request for a TRO requiring Defendants to utilize
the measures set forth below to improve hygiene and safety at the Jail.1 The Court
is without sufficient information to rule on Plaintiffs’ request to release all
members of the Medically-Vulnerable Subclass and is scheduling a hearing to
1 The Court is not imposing all of the measures requested by Plaintiffs and will discuss those measures that are omitted with the parties during the hearing scheduled infra.
2

Case 2:20-cv-10949-LVP-MJH ECF No. 12 filed 04/17/20 PageID.628 Page 3 of 7
address that request. The Court has considered the following factors in deciding whether to issue the TRO:
(1) whether the movant has a strong likelihood of success on the merits, (2) whether the movant would suffer irreparable injury absent a stay, (3) whether granting the stay would cause substantial harm to others, and (4) whether the public interest would be served by granting the stay. Ohio Republic Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008). The Court finds that Plaintiffs are likely to succeed on the merits of their claim alleging that jail conditions violate their Eighth and Fourteenth Amendment rights. Plaintiffs’ allegations reflect that Oakland County has not imposed even the most basic safety measures recommended by health experts, the Centers for Disease Control and Prevention, and Michigan’s Governor to reduce the spread of COVID-19 in detention facilities. It cannot be disputed that COVID-19 poses a serious health risk to Plaintiffs and the putative class.2 Plaintiffs also are likely to suffer irreparable harm absent an injunction, as they face a heightened risk of contracting this life-threatening virus simply as incarcerated individuals and even more so without the imposition of these cautionary measures. Entering an injunction requiring Defendants to adopt the safety precautions set forth below poses no harm to them other than potentially
2 A spread of the virus among incarcerated persons also poses a grave risk of harm to the jail employees with whom they interact.
3

Case 2:20-cv-10949-LVP-MJH ECF No. 12 filed 04/17/20 PageID.629 Page 4 of 7
increased costs and energy, which are insufficient to justify a denial of Plaintiffs’
motion. See Mich. Coalition of Radioactive Material Users, Inc. v. Griepentrog,
945 F.2d 150, 154 (6th Cir. 1991). “[I]t is always in the public interest to prevent
the violation of a party’s constitutional rights.” G & V Lounge, Inc. v. Mich.
Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994).
Accordingly,
IT IS ORDERED that Defendants shall as soon as practicable, or at least
within ten (10) days of this Opinion and Order, undertake the following minimum
measures:
(1) Ensure that each incarcerated person receives, free of charge: (a) an individual supply of liquid hand soap and paper towels sufficient to allow regular hand washing and drying each day, and (b) an adequate supply of disinfectant hand wipes or disinfectant products effective against the COVID-19 virus for daily cleanings;
(2) Ensure that all incarcerated people have no-cost access to hand sanitizer containing at least 60% alcohol where permissible based on security restrictions;
(3) Provide access to showers and clean laundry, including clean personal towels on a regular basis, but at a minimum on a weekly basis;3
(4) Ensure that, to the fullest extent possible, all Jail staff wear personal protective equipment, including masks,
3 At the hearing, the Court will address whether it should set forth a specific frequency for these items after weighing regular Jail practices and any information reflecting the need for more frequency during the COVID-19 pandemic.
4

Case 2:20-cv-10949-LVP-MJH ECF No. 12 filed 04/17/20 PageID.630 Page 5 of 7
when interacting with any person or when touching surfaces in cells or common areas;
(5) Ensure, to the fullest extent possible, that all Jail staff wash their hands with soap and water or use hand sanitizer containing at least 60% alcohol both before and after touching any person or any surface in cells or common areas. Consider allowing staff to carry individual sized bottles while on duty;
(6) Establish protocol through which an incarcerated person may self-report symptoms of COVID-19 infection and to evaluate those symptoms, including temperature monitoring;
(7) Conduct immediate testing for anyone displaying known symptoms of COVID-19;
(8) Provide adequate spacing of six feet or more between people incarcerated, to the maximum extent possible, so that social distancing can be accomplished;
(9) Ensure that individuals identified as having COVID19, with symptoms of COVID-19, or having been exposed to COVID-19 receive adequate medical care and are properly quarantined in a non-punitive setting, with continued access to showers, mental health services, reading materials, phone and video calling with loved ones, communications with counsel, and personal property (to the extent reasonable and necessary to the inmate’s physical and mental well-being). Such individuals shall remain in quarantine and wear face masks when interacting with other individuals until they are no longer at risk of infecting other people;
(10) Respond to all COVID-19 related emergencies (as defined by the medical community) within an hour;
(11) Provide sufficient disinfecting supplies, without cost, so incarcerated people can clean high-touch areas or
5

Case 2:20-cv-10949-LVP-MJH ECF No. 12 filed 04/17/20 PageID.631 Page 6 of 7
items (including, but not limited to, phones and headphones) between each use;
(12) Effectively communicate to all people incarcerated, including low-literacy and non-English-speaking people, sufficient information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices to reasonably ensure that individuals are able to take precautions to prevent infection;
(13) Train all staff regarding measures to identify inmates with COVID-19, measures to reduce transmission, and the Jail’s policies and procedures during this crisis (including those measures contained in this Order);
(14) Refrain from charging medical co-pays before treatment is provided to those experiencing COVID-19related symptoms, including testing;4
(15) Waive all charges for medical grievances during this pandemic until further order of the Court5;
(16) Cease and desist (a) all use of punitive transfers or threats of transfers to areas of the jail that have higher infection rates (or any other form of threat involving increased exposure to infection) for any infraction whatsoever; and (b) all retaliation in any form, against class members who raise concerns either formally or informally about the health and safety conditions in the Jail.6
4 The Court will consider at the hearing whether co-pays may be charged if payment is not required before treatment or testing. 5 The Court will address at the hearing whether charges for medical grievances should be allowed if payment is not required before a grievance is accepted and addressed. 6 At the hearing, the Court will address Plaintiffs’ request for an injunction restraining Defendants from taking “all punitive measures … against class
6

Case 2:20-cv-10949-LVP-MJH ECF No. 12 filed 04/17/20 PageID.632 Page 7 of 7
IT IS FURTHER ORDERED, that Defendants shall take the following measures in preparation for the TRO hearing:
(1) Promptly provide Plaintiffs and the Court with a list of all individuals who are members of the MedicallyVulnerable Subclass as defined in paragraph 94 of Plaintiffs’ Complaint, which includes their location, charge and bond status; and, (2) Promptly thereafter provide Plaintiffs and the Court with a list of any individuals in the Medically-Vulnerable Subclass who Defendants object to releasing and the basis for that objection. IT IS FURTHER ORDERED that the parties shall appear before the undersigned for a telephonic conference call on Monday, April 20, 2020 at 11:00 a.m., and for a telephonic hearing on Friday, April 24, 2020 at 11:00 a.m. For both the conference and hearing, Counsel shall call the Court’s toll-free conference line at 1-888-808-6929 and use Access Code 8141695. IT IS SO ORDERED.
s/ Linda V. Parker LINDA V. PARKER U.S. DISTRICT JUDGE Dated: April 17, 2020
members who decline to engage in labor on the grounds that such labor represents a threat to their health and safety or the health and safety of other class members.”
7

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.639 Page 1 of 43

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DISTRICT

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,

Case 2:20-cv-10949-LVP-MJH

v.

MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,

Defendants. __________________________________________________________________

DEFENDANTS’ MOTION FOR RECONSIDERATION

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.640 Page 2 of 43

NOW COME Defendants, MICHAEL BOUCHARD, CURTIS D. CHILDS and

OAKLAND COUNTY, by and through their attorneys, POTTER DeAGOSTINO

O’DEA & CLARK, and pursuant to E.D. Mich LR 7.1(g), hereby request the Court

to reconsider its ruling in its April 17, 2020 Opinion and Order Granting Plaintiffs’

Motion for Temporary Restraining Order (“TRO”) for the reasons set forth in the

brief accompanying this Motion.

POTTER, DeAGOSTINO, O’DEA & CLARK

Dated:

April 20, 2020

s/ STEVEN M. POTTER (P33344) Attorneys for Defendants 2701 Cambridge Court, Suite 223 Auburn Hills, Michigan 48326 (248) 377-1700 spotter@potterlaw.com

BRIEF IN SUPPORT OF MOTION FOR RECONSIDERATION I. Factual Background
A. Procedural History Plaintiffs, all convicted felons, filed the instant action on April 17, 2020. Plaintiffs’ Petition, titled “Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief” seeks class certification for potentially all inmates incarcerated at Oakland County Jail and (without legal basis) requests their release
2

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.641 Page 3 of 43
from jail. Throughout April 17th, Plaintiffs’ filed a barrage of pleadings. These included an Emergency Motion for Temporary Restraining Order and Motion for Class Certification. After receipt of Plaintiffs’ pleadings, Defendants waived service of Plaintiffs’ Complaint and the undersigned spoke with Plaintiffs’ counsel regarding a proposed briefing schedule. At that time, Plaintiffs’ counsel proposed a hearing on Wednesday, April 22, 2020 with Defendants’ Response due April 21, 2020. The undersigned advised Plaintiffs’ counsel that Defendants could not agree to the proposed schedule but would agree to a hearing on April 24 with Defendants’ brief due April 20. This phone call occurred at approximately 3:00 pm. Without any notice to Defendants or the undersigned, Plaintiffs’ then proceeded to file their Emergency Motion to Expedite Consideration of Plaintiff’s Motion for Temporary Restraining Order which was filed at 4:19 p.m. (R.12). Plaintiffs’ Emergency Motion did not request a hearing date on April 22 as previously proposed by Plaintiffs’ counsel and instead sought immediate consideration of its Motion for Temporary Restraining Order. It should be noted that the page total of Plaintiffs’ filings (including exhibits) on April 17 totaled 615 pages.
Less than two (2) hours after Plaintiffs’ Emergency Motion to Expedite Consideration of Plaintiffs’ Motion for Temporary Restraining Order and prior to Defendants filing any response to any of Plaintiffs’ filings, this Court entered its
3

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.642 Page 4 of 43
Opinion and Order granting Plaintiff’s Motion for Temporary Restraining Order. In its Opinion and Order, the Court made a determination that Plaintiffs showed a strong likelihood of success on the merits, entered Plaintiffs’ requested TRO and ordered Defendants to take several measures in preparation of the TRO hearing including to provide Plaintiffs and the Court with a list of inmates who are members of the Medically-Vulnerable Subclass and provide Plaintiffs and the Court with a list of individuals in the Medically-Vulnerable Subclass who Defendants object to releasing and the basis for same. Because Defendants were unable to respond to Plaintiff’s multiple filings, they were unable to advise the Court of the significant and numerous legal deficiencies in Plaintiffs’ filings (notably there being no legal basis for this Court to release inmates as Plaintiffs request) nor were Defendants able to present evidence of the efforts and measures undertaken at the Oakland County Jail well before Plaintiffs’ filed their lawsuit.
The Court’s Opinion and Order is especially problematic considering the deference entitled to government officials charged with the operation of correctional facilities as discussed in more detail below. The Court’s Opinion is further problematic because it permitted Plaintiffs’ counsel to make inflammatory and false statements to the media regarding the conditions in the jail and defaming Defendant Bouchard. Plaintiffs’ attorney Krithika Santhanam asserted called the situation “dire”
4

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.643 Page 5 of 43
and stated, “if we don’t act swiftly, folks will die.” (Exhibit A, Article). According to Plaintiffs’ counsel Carey McGehee, “the Oakland County jail is particularly bad and something needs to be done not just for our clients and other prisoners, but for the jail staff, vendors and the public.” (Exhibit A). The truth reveals a far different story than what was able to be portrayed in the media following the Court’s Opinion and Order.
B. Oakland County Jail’s Pro-activity and Response to COVID-19 In reality, Defendants have taken an immediate and proactive response to the COVID-19 pandemic to curb an outbreak or spread at the Oakland County Jail. Prior to any confirmed cases, signs were posted throughout the jail advising inmates of the steps being taken to attempt to prevent the virus from entering the facility. (Exhibit B, Affidavit of Captain Curtis Childs, ¶17). This was posted throughout the jail as early as March 11, 2020. (Exhibit B, ¶17; Exhibit C, Sign). The posts advised inmates that extra cleaning was being performed throughout the facility including ultraviolet cleaning. (Exhibit B). Part of the jail’s attempts to prevent and/or eliminate the spread of COVID-19 from entering and/or spreading throughout the jail has included various hygiene and cleanliness practices inside the jail. The following represent practices incorporated by the jail:
5

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.644 Page 6 of 43
1. Inmates in the main jail receiving area are given showers three times a week and are given whatever soap is needed when they shower. Additionally, two bars of soap are also provided to inmates in receiving area two times per week. In the main jail, the inmates receive two bars of soap two times per week. In the Annex, inmates are allowed to shower daily and soap is provided when they shower. In addition, inmates in the Annex receive two bars of soap twice per week. Furthermore, the desk deputy in each housing area has extra boxes of soap that is available upon request. (Exhibit B, ¶ 5).
2. The jail uses a product called DMQ. The jail only dilutes this product pursuant to the manufacturer’s instruction. The product is machine mixed at the jail. DMQ is available to all inmates when requested and no less than three times per day. It is provided to the inmates with food delivery. Inmates are provided sponges and rags in order to use the DMQ. When inmates are transferred between cells, the cells are always disinfected before use by the transferring inmates. (Exhibit B, ¶ 6).
3. Food preparation inmates are provided masks and gloves. Food delivery inmates are also provided masks and gloves. These requirements existed before COVID 19. (Exhibit B, ¶ 7).
4. All inmates are provided fresh, clean laundry once per week. (Exhibit B, ¶ 8).
5. Inmates performing laundry services are provided with gloves and masks and multiple clothing changes per day if requested. COVID 19 laundry is separated from laundry not suspected of COVID 19 contamination. (Exhibit B, ¶ 9).
6. With regard to sinks and toilets contained within cells, cleaning is performed by inmates with DMQ that is provided to them at a minimum of three times per day. (Exhibit B, ¶ 11).
6

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.645 Page 7 of 43
7. With regard to PPE for correctional staff, all correctional staff have been issued masks and gloves. Additionally, N95 masks and face shields have been issued to correctional staff who have contact with inmates who have tested positive for COVID 19. (Exhibit B, ¶ 12)
8. With regard to common areas within the jail, all common areas are disinfected by custodial staff daily. (Exhibit B, ¶ 13).
9. With regard to shower cleanliness, showers in main jail are in cells and are cleaned by the inmates. Showers in Annex are cleaned by the trustees and are to be cleaned after each use by the inmates. The receiving showers are cleaned by trustees immediately after each use. (Exhibit B, ¶ 19).
10. With regard to the holding cells, inmates in the holding cells are not in the same vicinity as the positive and symptomatic inmates who are housed in separate pods. (Exhibit B, ¶ 20).
Hand sanitizer is not given to inmates due to an incident that occurred in October
2019 when inmates attempted to mix the hand sanitizer with other substances in an
effort to create drinkable alcohol which resulted in several inmates becoming ill.
(Exhibit B, ¶ 18; Exhibit D, Incident Report). W i t h r e g a r d t o i n m a t e s ’
communication with the medical staff, sick call slips are distributed to the inmates
daily and picked up every morning by medical staff. (Exhibit F, Affidavit of Vicki-
Lyn Warren, ¶ 3). Sick call slips are the protocol for inmates to self-report COVID-19
symptoms. (Exhibit F, ¶ 3). Individuals who are displaying COVID-19 symptoms are
seen daily by the medical staff and assessed accordingly. (Exhibit F, ¶ 3). A full set
of vitals is taken once per day. (Exhibit F, ¶ 3). Temperature is taken by the day,
7

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.646 Page 8 of 43
afternoon and midnight medical shifts and therapeutics are administered as needed. (Exhibit F, ¶ 3). On Monday-Friday, each inmate in the facility is visited by a doctor or nurse practioner at which time they are provided a lengthy verbal education by the doctor or nurse practioner and are advised to immediately self-report any COVID-19 symptoms. (Exhibit F, ¶ 3).
Unfortunately, despite the jail’s best efforts to prevent COVID-19 from entering the jail, an inmate tested positive for COVID-19. Subsequent to the first positive case, Oakland County Jail personnel have been extremely aggressive in preventing further outbreak. If an inmate tests positive, that inmate is transferred into a pod designated for COVID 19 individuals. If an inmate has significant symptoms of COVID 19, that inmate is transferred from their cell and put into an area designated as symptomatic pod. (Exhibit B, ¶ 4). All inmates who had contact with someone who tests positive or has significant symptoms of COVID 19 are then placed into quarantine for 14 days. (Exhibit B, ¶ 4).
This also includes testing of all inmates who have shown symptoms of COVID19. (Exhibit F, ¶ 15). As of April 18, 2020, 242 inmates had received testing in the form of a swab. (Exhibit F, ¶ 15 ). Of the 242 tests, only 36 inmates have tested positive. (Exhibit F, ¶ 15). Five (5) of the 36 inmates who have tested positive have been released from custody. (Exhibit F, ¶ 15). Seven (7) of the 36 inmates who have
8

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.647 Page 9 of 43
tested positive have recovered and are no longer quarantined. (Exhibit F, ¶ 15). Thus, 24 inmates remain in quarantine with positive results at the jail. (Exhibit F, ¶ 15). The total jail population as of April 17, 2020 was 742 inmates. (Exhibit I, Daily Inmate Population Report).
The jail has also taken measures to encourage reporting of COVID-19 symptoms by including the waiver of any cost for treatment related to COVID-19 or filing a medical grievance. (Exhibit F, ¶ 15).
C. Plaintiffs’ Credibility (or lack thereof) In support of Plaintiffs’ Motion for TRO, Plaintiffs attach declarations containing allegations regarding the conditions of the jail. Because Defendants did not have an opportunity to respond to Plaintiffs’ Motion (or allegations set forth in the affidavits), the Court potentially took the affiants and the allegations contained in the affidavits at face value. Interestingly, the affiants’ criminal histories are replete with convictions related to crimes involving theft or dishonesty. Raj Lee’s criminal history includes convictions of felony home invasion, felony receiving and concealing stolen property, and most recently felony uttering and publishing countefeit bills or notes. (Exhibit E, Summary of Criminal Histories). David Kucharski’s criminal history includes convictions of felony receiving and concealing stolen property, felony attempted home invasion, misdemeanor
9

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.648 Page 10 of 43
operating a vehicle with a forgery/alteration/false ID, felony larceny in a building, felony home invasion (multiple convictions), felony attempted breaking and entering, felony tampering with electronic monitoring device and misdemeanor retail fraud. (Exhibit E).
Jamaal Cameron’s criminal history includes four convictions of felony uttering and publishing. (Exhibit E).
Matthew Saunders’ criminal history includes convictions of felony armed robbery, felony home invasion (1st degree), felony unlawful driving away of a motor vehicle, felony receiving/concealing stolen property, felony breaking and entering a vehicle (multiple convictions).
Richard Briggs’ criminal history includes convictions of felony receiving and concealing stolen property (multiple convictions), felony attempted unlawful driving away of a motor vehicle (multiple convictions). (Exhibit E).
Michael Bates’ criminal history includes convictions of misdemeanor larceny, felony larceny from a motor vehicle and felony receiving/concealing stolen property. (Exhibit E).
Michael Cameron’s criminal history includes convictions of felony receiving and concealing stolen property (multiple convictions) and felony unlawful driving away of a motor vehicle (multiple convictions). (Exhibit E).
10

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.649 Page 11 of 43
Attached as Exhibit E is summary of affiants’ criminal histories demonstrating their lack of credibility and corresponding issues with the Court relying on statements made by these individuals who have shown their propensity to repeatedly engage in dishonest acts.
Certainly, one could wonder if these career criminals are not simply looking for a “get-out-of- jail-free” card. II. The Opinion and Order
This Motion seeks reconsideration of the Court’s Opinion and Order dated April 17, 2020 granting Plaintiff’s Motion for Temporary Restraining Order and ordering Defendants to take measures in preparation of the TRO hearing related to members of the “Medically-Vulnerable Subclass” identified in Plaintiff’s Complaint. The instant motion is brought pursuant to Fed.R.Civ.P. 59(e) which permits a motion to alter or amend a judgment to be filed within 10 days after entry of the judgment.
The Supreme Court has noted that Fed.R.Civ.P. 59(e) was adopted “to mak[e] clear that the district court possesses the power to rectify its own mistakes in the period immediately following entry of judgment.” White v New Hampshire Dep’t of Employment Sec., 455 U.S. 445, 450; 102 S.Ct. 1162, 1166, 71 L.Ed.2d 325 (1982) (internal quotations omitted); see also Ray E. Friedman & Co. v Jenkins, 824 F.2d 657, 660 (8th Cir. 1987). Such a motion is therefore appropriate in cases where the court has based an order on a factual error. Norman v Arkansas Dep’t of Education, 79 F.3d 748, 750 (8th Cir. 1996). “The
11

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.650 Page 12 of 43
purpose of Rule 59(e) is “to allow the district court to correct its own errors, sparing the parties and appellate courts the burden of unnecessary appellate proceedings.” Howard v United States, 533 F.3d 472, 475 (6th Cir. 2008) (quoting York v Tate, 858 F.2d 322, 326 (6th Cir. 1988)).
Eastern District of Michigan Local Rule 7.1(g) provides the standards for a motion for reconsideration:
[T]he court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the court, either expressly or by reasonable implication. The movant must not only demonstrate a palpable defect by which the court and the parties have been misled but also show that correcting the defect will result in a different disposition of the case. “Palpable defect” has been defined as “a defect which is obvious, clear, unmistakable, manifest, or plain.” Chrysler Realty Co., LLC, v Design Forum Architects, Inc., 544 F.Supp.2d 609, 618 (2008). A. The Court Erred When It Determined Plaintiffs Have a Strong Likelihood of Success on the Merits In order to grant a TRO, the Court must consider (1) whether the movant has a strong likelihood of success on the merits, (2) whether the movant would suffer irreparable injury absent a stay, (3) whether granting the stay would cause substantial harm to others, and (4) whether the public interest would be served by granting the stay. Ohio Republic Party v Brunner, 543 F3d 357, 361 (6th Cir.2008).
12

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.651 Page 13 of 43
Where a prison inmate seeks an order enjoining prison officials, this Court is
required to proceed with the utmost care and must recognize the unique nature of the
prison setting. Orum v Michigan Dep’t of Corrections, 2018 WL 8369471 *11 (W.D.
Mich, December 11, 2018)(citing Kendrick v. Bland, 740 F.2d 432 at 438, n.3, (6th
Cir. 1984); Harris v. Wilters, 596 F.2d 678 (5th Cir. 1979)). In the context of the
prison administration, “the interests of identifiable third parties and the public at large
weigh against the granting of an injunction. Any interference by the federal courts in
the administration of ... prison matters is necessarily disruptive.” The Sixth Circuit
has noted:
It is fundamental that the federal forum, as the ultimate guardian of constitutional rights, possesses the authority to implement whatever remedy is necessary to rectify constitutionally infirm practices, policies or conduct.... This broad, equitable authority, however, is tempered by precepts of comity and federalism.... The restraints of federalism must be applied not only when an injunction is sought against the judicial branch of state government, but also when an injunction is urged “against those in charge of an executive branch of any agency of state or local government.”.... Thus the federal equity court in fashioning a remedy must afford relief which is “no broader than necessary to remedy the constitutional violation.” Glover v Johnson, 855 F2d 277, 286 (6th Cir.1988)(citations and quotations omitted).
* **
Federal restraint into intrusion of a state penal institution is counseled for at least two reasons: [J]udicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp
13

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.652 Page 14 of 43
of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the providence of the Legislative and Executive Branches of our Government not the Judicial. Kendrick v Bland, 740 F2d 432, 438 (6th Cir.1984)(quotations and citations omitted). See also, Turner v Safley, 482 US 78, 85 (1987)(“Where a... penal system is involved, federal courts have ... additional reason to accord deference to the appropriate prison authorities”); Meachum v Fano, 427 US 215, 229 (1976)(“Federal courts do not sit to supervise state prisons, the administration of which is of acute interest to the States”). Importantly, a court should assume that, absent an official policy or practice urging unconstitutional behavior, individual government officials will act constitutionally. City of Los Angeles v Lyon, 461 US 95, 102 (1983); O’Shea v Littleton, 414 US 488, 495-96 (1974).
1. Plaintiff’s Cannot Claim Eighth and Fourteenth Amendment Violations as Part of a Habeas Petition
In its Opinion and Order, the Court stated, “the Court finds that Plaintiffs are likely to succeed on the merits of their claim alleging that jail conditions violate their Eighth and Fourteenth Amendment rights.” (Opinion p. 3). The Court issued its Order without permitting or considering a response from Defendants and without affording any deference to defendant prison officials as required. Consequently, the Court proceeded to issue its Opinion which also failed to consider well established
14

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.653 Page 15 of 43

precedent regarding the inability to file an Eighth/Fourteenth Amendment claim as
part of a habeas petition1.
In Glaus v Anderson, 408 F3d 382, 387-88 (7th Cir. 2005), plaintiff alleged
defendant prison officials violated his Eighth Amendment rights. Specifically,
plaintiff alleged defendants were deliberately indifferent to his serious medical needs
which presented a potentially fatal situation. Id at 384. The district court denied
plaintiff’s habeas petition and the Seventh Circuit affirmed the district court holding:
Glaus’s habeas corpus petition would be proper if release were among the possible remedies for an Eighth amendment deliberate indifference claim. Unfortunately for Glaus, it is not. If an inmate established that his medical treatment amounts to cruel and unusual punishment, the appropriate remedy would be to call for proper treatment, or to award him damages; release from custody is not an option...
[Glaus’s claim] must be brought as either a civil rights claim or possibly a Federal Tort Claims Act claim against the United States or an Administrative Procedures Act challenge[.]
The Sixth Circuit has also held that an inmate may not challenge the conditions of
confinement in a habeas petition. In re Owens, 525 Fed. App'x 287, 290 (6th
Cir.2013). Similarly, in Burton v McGlasson, No. 2:14-CV-10693, 2014 WL 700503
(E.D. Mich. Feb. 24, 2014), this Court dismissed plaintiff’s habeas petition when
plaintiff’s petition challenged the conditions of confinement. This Court noted:

1

Defendants are in the process of preparing a Motion to Dismiss in lieu of Answer

to Plaintiffs’ Petition pursuant to Fed. R. Civ. P. 12(b)(6).

15

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.654 Page 16 of 43
Where a prisoner is challenging the very fact or duration of his physical imprisonment and the relief that he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a petition for writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). However, habeas corpus is not available to prisoners who are complaining only of mistreatment during their legal incarceration. See Lutz v. Hemingway, 476 F.Supp.2d 715, 718 (E.D.Mich.2007). Complaints like the ones raised by petitioner which involve conditions of confinement “do not relate to the legality of the petitioner's confinement, nor do they relate to the legal sufficiency of the criminal court proceedings which resulted in the incarceration of the petitioner.” Id. (quoting Maddux v. Rose, 483 F.Supp. 661, 672 (E.D.Tenn.1980)). A petition for writ of habeas corpus is not the proper vehicle for a prisoner's claim that prison officials have been deliberately indifferent to his medical needs, because release from custody is not an available remedy for a deliberate indifference claim. See In re Owens, 525 Fed. App'x 287, 290 (6th Cir.2013); Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir.2005); Hamilton v. Gansheimer, 536 F.Supp.2d 825, 841–42 (N.D.Ohio 2008). An inmate like petitioner should therefore bring his medical indifference claim as a civil rights complaint. Glaus, 408 F.3d at 386–87. Because petitioner challenges only the conditions of his confinement, his claims “fall outside of the cognizable core of habeas corpus relief.” See Hodges v. Bell, 170 Fed. App'x 389, 393 (6th Cir.2006).
Id at *1 (emphasis supplied). See also, Martin v Zych, 2009 WL 398166 (E.D. Mich.
Feb. 17, 2009) (holding “petition for writ of habeas corpus is not the proper vehicle
for a prisoner's claim that prison officials have been deliberately indifferent to his
medical needs, because release from custody is not an available remedy for a
deliberate indifference claim”); Davis v Zych, 2009 WL 1212489 (E.D. Mich. May
4, 2009) (“[C]laims concerning the conditions of confinement are not cognizable in
16

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.655 Page 17 of 43
a habeas action brought pursuant to 28 U.S.C. §§ 2241 or 2254"); Crites v Madison County Jail, 2018 WL 1832919 at *2 (dismissing habeas petition on preliminary review holding deliberate indifference claim was non-cognizable) and Peterson v Diaz, 2020 WL 1640008 (E.D. Cal. April 2, 2020)(holding habeas proceedings not appropriate vehicle to raise Eighth Amendment claims related to COVID-19 pandemic).
Here, Plaintiffs have done exactly what has been routinely rejected by numerous federal courts including the Sixth Circuit. In re Owens, supra. Plaintiffs have filed a Petition for Habeas Corpus that alleges Eighth and Fourteenth Amendment violations relating to the conditions and confinement of the Oakland County Jail. Unfortunately for Plaintiffs, a habeas petition is not the proper mechanism for challenging conditions and confinement of incarceration. As this Court has previously noted, “A petition for writ of habeas corpus is not the proper vehicle for a prisoner's claim that prison officials have been deliberately indifferent to his medical needs, because release from custody is not an available remedy for a deliberate indifference claim.” Consequently, Plaintiffs cannot show any likelihood of success with regard to their habeas petition as required in order to grant a TRO regarding same. Chrysler Realty Co., LLC, supra.
17

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.656 Page 18 of 43
2. Plaintiffs’ Cannot Establish Defendants Are Recklessly Disregarding The Risk Posed by COVID-19
The United States Supreme Court has held, “the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling v McKinney, 509 US 25, 31; 113 S Ct 2475 (1993). In regard to an inmates conditions of confinement, the Supreme Court noted that jail conditions may be “restrictive and even harsh.” Rhodes v Chapman, 452 US 337, 347; 101 S Ct 2392 (1981). It is well settled that pursuant to the Eighth Amendment of the United States Constitution, a prison official must “take reasonable measures to guarantee the safety of the inmates.” Hudson v Palmer, 468 US 517, 526-527; 104 S Ct 3194 (1984). To raise a cognizable constitutional claim for deliberate indifference to an inmate's safety, an inmate must make a two-part showing: (1) the alleged mistreatment was objectively serious; and (2) the defendant subjectively ignored the risk to the inmate's safety. Farmer v Brennan, 511 U.S. 825, 834; 114 S.Ct. 1970 (1994).
In regard to the second element discussed above, the United States Supreme Court has held that in order for a plaintiff to be successful in his deliberate indifference claim, he must show the prison official possessed a state of mind “more blameworthy than negligence.” Id. The Farmer Court also noted that “acting or
18

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.657 Page 19 of 43
failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding the risk.” Id. Importantly, the reckless standard is not one of objectivity. Id at 837-838. Instead, a plaintiff must show the prison officer “consciously disregarded,” a substantial risk of harm. Id at 839. The Sixth Circuit has likewise acknowledged that a plaintiff must show defendant subjectively ignored a risk that was objectively serious. Leary v Livingston County, 528 F3d 438, 442 (6th Cir.2008).The prison official's state of mind must evince “deliberateness tantamount to intent to punish.” Miller v. Calhoun Cty., 408 F.3d 803, 812–13 (6th Cir. 2005) (citing Horn v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th Cir.1994)).“[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838, 114 S.Ct. 1970.
Deliberate indifference claims are the same under the Eighth and Fourteenth Amendments. Ford v Cnty of Grand Traverse, 535 F3d 483, 494-95 (6th Cir.2008); Hanner v City of Dearborn Heights, 450 Fed Appx 440, 447 (6th Cir.2011) (“Similar rights are guaranteed to pretrial detainees by the Due Process Clause of the Fourteenth Amendment, which provides the same deliberate indifference standard of care as the Eighth Amendment”), Goebert v Lee County, 510 F3d 1312, 1326 (11th
19

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.658 Page 20 of 43
Cir.2007) (“the standards under the Fourteenth Amendment are identical to those under the Eighth.”).
Plaintiffs cannot show that Defendants have been deliberately indifferent to their needs and thus are unable to show a strong likelihood of success on the merits of their Eighth and Fourteenth Amendment claims because the overwhelming evidence establishes Defendants previously put into place nearly all of the requirements of the Court’s TRO at the jail. Although each individual reacts differently to the virus, fortunately no inmate has been admitted to a hospital due to COVID-19 related symptoms and no inmate has died as a result of COVID-19. The individual components of the Court’s TRO will be addressed separately below.
A. Liquid Hand Soap/Disinfectant Products Prior to the Court’s Order, OCJ practices included providing hand soap in all cells. (Exhibit Exhibit B, ¶ 5). Two bars of soap are provided to inmates two times per week. (Exhibit B, ¶ 5). Additionally, jail personnel provide disinfectant products (“DMQ”) when requested and no less than three times per day to each cell in the jail. (Exhibit B, ¶ 6).
B. Hand Sanitizer Defendants do not allow for inmates to possess hand sanitizer and vehemently object to any order regarding same. The OCJ previously provided
20

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.659 Page 21 of 43
inmates with access to sanitizer. (Exhibit B, ¶ 18). Unfortunately, on October 23, 2019, a serious incident occurred involving inmates making alcoholic drinks from hand sanitizer. (Exhibit B, ¶ 18; Exhibit D Incident Report). As a result, several inmates became ill including one inmate who became unresponsive and required hospitalization. (Exhibit D, p. 28). Consequently, any future release of hand sanitizer potentially places inmates at a serious risk to their own health and safety. In addition, because Defendants are on notice of same, they potentially face exposure and liability in the form of a substantive due process claim to the extent an inmate becomes ill due to Defendants providing hand sanitizer to them.
C. Access to Showers/Clean Laundry Inmates in the main jail receiving area are given showers three times per week. (Exhibit B, ¶ 5). Inmates in the annex have daily access to showers. (Exhibit B, ¶ 5). Inmates are given clean laundry once per week. (Exhibit B, ¶ 8).
D. PPE for Jail Staff All jail personnel have been issued masks and gloves. (Exhibit B, ¶ 12). Additionally, N95 masks and face shields have been issued to correctional staff who have contact with inmates who have testified positive for COVID-19. (Exhibit B, ¶ 12).
E. Jail Staff Hygiene Efforts
21

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.660 Page 22 of 43
Defendants have taken steps to ensure jail personnel wash their hands with soap and water both before and after touching any person or surface in cells or common areas. (Exhibit B, ¶ 24). This includes signs posted throughout the Jail for all personnel to observe. (Exhibit B, ¶ 24). Jail personnel have access to both soap and water to be used at their disposal. (Exhibit B, ¶ 24).
F. Protocol to Report Symptoms With regard to inmates’ communication with medical staff, sick call slips are distributed to the inmates daily and picked up every morning by medical staff. (Exhibit F, ¶ 3). Sick call slips are the protocol for inmates to self-report COVID-19 symptoms. (Exhibit F, ¶ 3). Individuals who are displaying COVID-19 symptoms are seen daily by the medical staff and assessed accordingly. (Exhibit F, ¶ 3). A full set of vitals is taken once per day. (Exhibit F, ¶ 3). Temperature is taken by the day, afternoon and midnight medical shifts and therapeutics are administered as needed. (Exhibit F, ¶ 3).
G. Testing of COVID-19 Defendants have and continue to test all inmates who displays known symptoms of COVID-19. (Exhibit F, ¶ 15). As of April 18, 2020, 242 COVID-19 tests have been administered to inmates through swab testing. (Exhibit F, ¶ 15). Of the 242 tests performed, only 36 inmates have tested positive for COVID-19. (Exhibit
22

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.661 Page 23 of 43
F, ¶ 15). Five (5) of the positive inmates have been released from custody, seven (7) recovered and returned to general population and 24 remain quarantined in the pod designated for COVID-19 positive inmates. (Exhibit F, ¶ 15).
H. Adequate Spacing With regard to social distancing, the CDC guidelines expressly recognize the impracticality of providing six (6) feet of spacing for social distancing in correctional facilities. (Exhibit B, ¶ 3) And, recognizing the guidelines provide that the six (6) foot spacing strategy has to “…be tailored to the individual space in the facility…” (Exhibit B, ¶ 3) The OCSO has implemented several CDC strategies to reduce COVID-19 transmission by, 1) limiting recreational activities, 2) providing outside catered meals in the housing units or cells, 3) suspending group programs and 4) reducing the number of inmates in group cells where room and classification permit. (Exhibit B, ¶ 3). In addition, the OCSO closed one pod to provide for overflow of newly arrested inmates to allow them fourteen (14) days quarantine, together with the separation of these new inmates into pairs of two. (Exhibit B, ¶ 3) Extraordinary efforts have been made to both reduce overall jail occupancy as well as reduce the number of inmates in group cells. (Exhibit B, ¶ 3) Jail occupancy in joint cells has been reduced by 56%. The remaining jail population consists of single and double cell occupancy. (Exhibit B, ¶ 3).
23

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.662 Page 24 of 43
I. Quarantine of Positive Cases Inmates who test positive are immediately quarantined from other inmates. (Exhibit B, ¶ 4). There is one specific pod in the jail that has been designated for COVID-19 positive inmates only. (Exhibit B, ¶ 4). These inmates have access to showers, mental health services, reading materials, phone and video calling, communications with counsel and personal property. (Exhibit B, ¶ 4). Inmates who are positive for COVID-19 remain in quarantine for 14 days. (Exhibit B, ¶ 4).
J. Response To Emergencies within an Hour All medical emergencies receive immediate response from jail personnel. (Exhibit F, ¶ 6).
K. Disinfecting Supplies See subparagraph (A) above.
L. Communication Regarding COVID-19 Communication including written postings have been posted and/or distributed throughout the Jail. (Exhibit B, ¶ 17; Exhibit C). The communications advise inmates of the steps taken by jail personnel as it pertains to COVID-19. (Exhibit B, ¶ 17). The posting was posted throughout the jail as early as March 11, 2020 and prior to any confirmed cases inside the jail. (Exhibit B, ¶ 17). Medical staff, including a doctor or nurse practioner, are visiting each housing area Monday-Friday at which time they
24

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.663 Page 25 of 43
are constantly interacting with the inmate population and providing lengthy verbal education regarding the importance of self-reporting COVID-19 symptoms. (Exhibit F, ¶ 4).
M. Training of Staff Signs are posted throughout the facility reminding jail personnel they are required to wash their hands with soap and water as frequently as possible. (Exhibit B, ¶ 24). The signs also instruct the staff on the proper method and manner to wash their hands. (Exhibit B, ¶ 24). Additionally, as noted above, each housing area is visited by a doctor or nurse practioner Monday-Friday. (Exhibit F,¶ 4).
N. Medical Co-Pays Defendants have waived all charges related to medical co-pays related to COVID-19 related symptoms and/or treatment which includes testing of same. (Exhibit B, ¶ 23).
O. Waiver of charges for Medical Grievances Defendants have waived charges related to medical grievances during the pandemic. (Exhibit B, ¶ 22).
P. Punitive Transfers/Retaliation Defendants have never engaged in punitive transfers or threats of transfers to areas of the jail that have higher infection rates for any infraction. (Exhibit B, ¶ 10,
25

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.664 Page 26 of 43
15). As indicated above, inmates who have tested positive are quarantined in a pod that is separate from all those who are not positive for COVID-19. (Exhibit B, ¶ 4).
Q. CDC Recommendations On March 23, 2020, the Center for Disease Control (“CDC”) issued “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correction and Detention Centers. (ECF 17 Pg. ID 166, Pgs. 1- 27) Recognizing it is neither feasible nor practical to implement all recommendations, the CDC expressly authorizes Correction and Detention Centers to implement the recommendations according to the “specific needs of…” their facility. Id pg. 4 of 27. This guidance encompasses, among other things, “Prevention” and “Management” of the Covid-19 virus in the inmate population. CDC “Prevention” guidelines are intended to assist facilities in preventing the spread of the virus from outside the facility to inside the facility. CDC “Management” guidelines are intended to assist facilities in clinically managing confirmed and suspected COVID-19 cases inside the facility. Id pg. 6 of 27. Sheriff Michael Bouchard and the Oakland County Sheriff’s Office (“OCSO”) had already implemented all feasible CDC recommendations relating to inmate safety long before the subject suit.
26

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.665 Page 27 of 43
PREVENTION Among the recommendations for prevention, the CDC suggest “Cleaning and
Disinfecting Practices” be intensified. These recommendations include cleaning and disinfecting surfaces several times a day. Id pg. 10 of 27. Long before this suit was filed, the OCSO implemented new procedures requiring cleaning and disinfecting all surfaces identified in the CDC recommendation three (3) times a day. In accord with this new policy, all inmate Trusties and custodial staff clean common areas three (3) times a day with approved disinfectant products. Inmates are given all necessary cleaning supplies to clean their respective cells after each of their three (3) meal. In addition, they are advised that cleaning supplies are readily available and are encouraged to “use them as often as possible”. (Exhibit B, ¶ 5, 6, 19; Exhibit C).
In accord with the CDC recommendations to use “household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19” [Id pg. 10 of 27] the OCSO uses DMQ® a United States Environmental Protection Agency (“EPA”) EPA registered disinfectant. Id. (Exhibit G, EPA registration documentation).
In addition to the use of EPA registered cleaning agents, OCSO has also implemented Ultraviolet Germicidal Irradiation (UVGI) technology to supplement
27

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.666 Page 28 of 43
cleaning in the jail environment. (Exhibit C). This technology has become routinely used in a variety of industries to combat COVID-191.
The OCSO has implemented the CDC recommendation for posting signage throughout the facility. (Exhibit C). In addition, Monday through Friday, each housing area in the facility is visited by a doctor or nurse practioner at which time they are constantly interacting with the inmate population and providing lengthy verbal education regarding the importance of self-reporting COVID-19 symptoms. Id pgs. 11& 12 of 27; (Exhibit F, ¶ 4).
Inmates are given, free of charge, individual bar soap, running water and towels to wash frequently consistent with CDC recommendations. (Exhibit B, ¶ 5). While Plaintiffs would have the OCSO provide hand sanitizer to inmates, the CDC recognizes the inherent danger of inmate intoxication posed by giving inmates a product containing 60% or more alcohol by volume. This is why the CDC only recommends hand sanitizer if there is no “soap and water” available to the inmates and only if security concerns allow. Id pg. 8 of 27. The principal security concern for dispensing hand sanitizer to inmates is “inmate intoxication.” Mixing salt with hand sanitizer is known to convert the semi liquid sanitizer to a liquid form for ease of
1 For example, see; Effects of Ultraviolet Germicidal Irradiation (UVGI) on N95 Respirator Filtration Performance and Structural Integrity, J Occup. Environ Hyg. 2015; 12(8): 509–517; N95 Filtering Facemask Respirator Ultraviolet Germicidal Irradiation (UVGI) Process for Decontamination and Reuse; Nebraska Medicine, John J Lowe, Katie D Paladino, et al.
28

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.667 Page 29 of 43
consumption. In October of 2019, inmates were found to have consumed hand sanitizer mixed with rock salt, antifreeze and Kool Aid®. One of the seven (7) was found breathing but unresponsive, even to painful stimuli. (Exhibit D). He was lifted from his top bunk and immediately transported by ALS to the McLaren Oakland Emergency Department. (Exhibit D). Poison control advised the remaining six (6) were to be monitored over the next several hours. (Exhibit D).
In accord with CDC guidelines, the OCSO has implemented a new “pre-intake screening” practice which includes identifying new inmates with COVID-19 complaints and taking all new inmates’ temperature. Id pg. 11 of 27. Consistent with the guidelines, OCSO further segregates all new inmates for fourteen (14) days to determine if they develop COVID-19 symptoms or later test positive. Id pg. 15 of 27; (Exhibit B ¶ 3). The OCSO also provides all inmates as well as new arrestees with a letter explaining the concerns and policies governing COVID-19 protections in the jail. (Exhibit H).
The CDC guidelines expressly recognize the impracticality of providing six (6) feet of spacing for social distancing in correctional facilities. The guidelines provide that this strategy [six (6) foot spacing] will have to “…be tailored to the individual space in the facility…” and “[n]ot all strategies will be feasible in all facilities…” Consequently, the six (6) foot spacing is only one of several strategies that may be
29

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.668 Page 30 of 43
considered for implementation. Id pg. 12 of 27. The OCSO has implemented several CDC strategies to reduce transmission by; limiting recreational activities, providing outside catered meals in the housing units or cells, suspending group programs and reducing the number of inmates in group cells where room and classification permit. Id; (Exhibit B, ¶ 3).
Long before the subject litigation, the OCSO closed one pod to provide for overflow of newly arrested inmates to allow them fourteen (14) days quarantine, together with the separation of these new inmates into pairs of two. (Exhibit B, ¶ 3). Extraordinary efforts have been made to both reduce overall jail occupancy as well as reduce the number of inmates in group cells. Jail occupancy in joint cells has been reduced by 56%. The remaining jail population consists of single and double cell occupancy. (Exhibit I]).
The OCSO began its efforts to prevent and managed against the spread of COVID-19 in compliance with CDC recommendations and as a part of its own independent policies long before this litigation2.
2
In addition to the affidavits of Childs and Warren, attached as Exhibit M is the Affidavit of Sgt. Ryan Terry which sets forth the efforts to prevent COVID-19 transmission in the East Annex. The Court should be aware that the East Annex has not experienced a single positive case of COVID-19.
30

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.669 Page 31 of 43
MANAGEMENT Consistent with CDC guidelines, the OCSO has been “medically isolate[ing]”
all inmates diagnosed with COVID-19 [Id pgs. 16 of 27], and “quarantine[ing]” all inmates with any symptoms of COVID-19 [Id pgs.20 of 27] regardless of their status in the jail3. All medically isolated or quarantined inmates remain in their cohort until CDC related criteria have been met or they are eligible for release4. Id pgs. 18 & of 27. Simply put, OCSO has taken extraordinary efforts to comply with the available CDC guidelines at a time of national pandemic. As such, the Court’s determination that Plaintiffs’ have shown a strong likelihood of success contained a palpable defect and should be reversed.
III. This Court Lacks Authority to Enter An Order Releasing Inmates From Oakland County Jail
In regard to a prisoner’s claims regarding conditions and confinement while incarcerated, the United Stated District Court for the Western District of Michigan recently noted:
The United States Supreme Court has explained that "[f]ederal law
3 The CDC recognizes that Correctional and Detention facilities often lack the physical ability to provide single cell locations for medical isolation and/or quarantine. Consequently, the CDC provides that confirmed COVID cases can be “medically isolated” as a “…cohort, in a large, well ventilated cell with solid walls but without a solid door. Id pgs. 16 of 27. Quarantined inmates can be maintained in as a “...cohort in a multi person cell without a solid wall or solid door…” Id pgs. 21 of 27
4
However, it is not feasible to obtain two (2) negative tests in 24 hours pursuant to guidelines because of the unavailability of test kits.
31

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.670 Page 32 of 43
opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1987, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983." Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). Causes of action arising from the conditions and circumstances of confinement are brought through claims under § 1983 and are subject to various procedures and consequences set forth in the Prison Litigation Reform Act (PLRA). See id.; Moran v. Sondalle, 218 F.3d 647, 649 (7th Cir. 2000) (per curiam). Challenges to the validity and duration of a conviction are brought through habeas applications and are subject to different procedures and consequences set forth in the Antiterroism and Effective Death Penalty Act (AEDPA). See Muhammad, 540 U.S. at 750; Moran, 218 F.3d at 649. Because the requirements for the two types of lawsuits are different, the Seventh Circuit explained that it was "important to classify [the] cases correctly." Moran, 218 F.3d at 649.
The Seventh Circuit also noted that prisoners "may be tempted to choose one route rather than another to avoid" the various procedures and consequences set forth in the two statutes. Moran, 218 F.3d at 649. A "hybrid" action involving both types of claims "presents significant problems and courts must be on guard for attempts to use § 1983" to avoid the restrictions contained in the AEDPA. Spencer v. Barret, No. 14-10823, 2015 WL 4528052, at *4 (E.D. Mich. July 27, 2015). Where prisoner have sought to bring a hybrid habeas and civil rights claims, courts have directed the prisoners to file separate actions. See, e.g., Kirk v. Jablonski, No. 18-cv-288, 2019 WL 1283009, at *1 (D.N.M. Mar. 20, 2019).
Dunbar v. Rozen, No. 1:18-CV-617, 2019 WL 3213757, at *2 (W.D. Mich. July 17,
2019) (attached as Exhibit J).
1. The Conditions of the PLRA Are Not Satisfied
The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, incorporates
32

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.671 Page 33 of 43
the provisions of 18 U.S.C. § 3626, titled “appropriate remedies with respect to prison conditions.” Pursuant to this section, “prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” 18 U.S.C. § 3626(a)(1). Courts are instructed “to give substantial weight to any adverse impact on public safety or the operation of the criminal justice system caused by the relief.” Id. “Civil action with respect to prison conditions” is defined as “any civil proceeding arising under Federal law with respect to the conditions of confinement and the effects of actions by government officials on the lives of persons confined in prison” but explicitly “does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.” 18 U.S.C. § 3626(a)(2).
Importantly, the PLRA sets forth procedures for consideration of a “prisoner release order.” 18 U.S.C. § 3626(a)(3). A “prisoner release order” includes “any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison.” 18 U.S.C. § 3626(g)(4). A court may not enter a “prisoner release order” unless it “has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied” and “the defendant has had a reasonable
33

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.672 Page 34 of 43
amount of time to comply with the previous court orders.” 18 U.S.C. §
3626(a)(3)(i)-(ii). Once these conditions have been satisfied, only a three-judge panel
can consider and issue a “prisoner release order” once it has determined by clear and
convincing evidence that “crowding is the primary cause of the violation of a Federal
right” and “no other relief will remedy the violation.” 18 U.S.C. § 3626(a)(3)(E)(i)-
(ii); Brown v Plata, 563 US 493, 512 (2011); Money v Pritzker, - - - F. Supp. 3d - - -
, 2020 WL 1820660 (N.D. Ill, April 10, 2020).
Courts have routinely denied plaintiffs request for a prison release order due
to concerns related to COVID-19 in accordance with the conditions set forth in the
PLRA. In Money, supra, the court denied plaintiffs’ request to be released from the
Illinois Department of Corrections due to alleged concerns regarding the inmates’
safety and wellbeing during the COVID-19 pandemic. Id at *1. In its Opinion and
Order denying plaintiffs’ requested relief, the court held:
The upshot is that the PLRA prevents this Court from granting the temporary restraining order on the Section 1983 claim, for a number of reasons. First, the statute provides that “no court shall enter a prisoner release order unless * * * a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right,” and the defendants have “had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. § 3626(a)(3)(A)(i), (ii). Here, there is no such “previous court order[ ].” Id. Second, the statute provides that “only” a “three-judge court” can enter a prisoner release order. 18 U.S.C. § 3626(a)(3)(B). So, this Court, standing alone, lacks the authority to issue any order that has the “purpose
34

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.673 Page 35 of 43
or effect of reducing or limiting the prison population.” Id.; 18 U.S.C. § 3626(g)(4). Id at *14 (emphasis supplied).
Similarly, in Coleman & Plata v Newsom, 2020 WL 1675775 (E.D. Cal April 4, 2020), plainitffs sought an order directing the Governor of California and other state officials to release categories of inmates who were low-risk, non-violent and/or close to their release dates and to “release or relocate inmates who, because of their age or other medical conditions, are at a high risk of developing a severe form of COVID-19.” Id at *3. In denying plaintiffs’ request, the court noted plaintiffs could not satisfy the PLRA’s “prior order requirement because there have not yet been any orders requiring Defendants to take measures short of release to address the threat of the virus; nor have Defendants had a reasonable time to comply.” Id at *4.
Just as in Money and Coleman, supra, the PLRA is implicated in the instant case because Plaintiffs’ Petition for Habeas Corpus seeks a “prisoner release order.” Specifically, Plaintiffs’ Petition for Habeas Corpus requests an order to “release all Medically Vulnerable Petitioners/Plaintiffs and Subclass Members of transferring them to home confinement.” (Plaintiff’s Petition, p. 67). Also similar to Money and Coleman, Plaintiffs’ request has no legal support and similarly has no likelihood of success. Prior to Plaintiffs’ habeas petition, no court has ever entered an order for
35

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.674 Page 36 of 43
“less intrusive relief.” 18 U.S.C. 3626(a)(3)(A)(i); Gillette v Prosper, 858 F3d 833, 837 (3d Cir. 2017). Just as the Money court held when facing concerns related to COVID-19, “there is no such ‘previous court order.’” Money, at *14. Because no prior order has been entered, it is impossible for Plaintiffs to show that Defendants had a “reasonable amount of time to comply with the prior court orders.” Id; 18 U.S.C. 3626(a)(3)(A)(ii). Thus, Plaintiffs cannot show that either requirement of the PLRA is satisfied. Moreover, even if Plaintiffs could show the requirements were satisfied, this Court alone would not have the authority to order release of Plaintiffs or any other inmates of Oakland County Jail. Instead, a three judge panel would need to consider the requested “prisoner release order” after making a determination that there is clear and convincing evidence that “crowding” is the primary cause of constitutional violation and no other relief is sufficient. 18 U.S.C. § 3626(a)(3)(E)(i)(ii). Simply put, just as the Money court held, “this Court, standing alone, lacks the authority to issue any order that has the ‘purpose or effect of reducing or limiting the prison population.’” Therefore, to the extent the Court’s Opinion and Order contemplated possible release of Plaintiffs and/or other inmates at Oakland County Jail (see Opinion and Order p. 7), it contained a palpable defect and was inconsistent with established authority. Consequently, the Order should be reconsidered and set aside.
36

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.675 Page 37 of 43
IV. Plaintiffs’ Have Failed to Exhaust Required Available State Remedies In addition to the PLRA precluding Plaintiffs’ request for release, their petition
for writ of habeas corpus has no likelihood for success because Plaintiffs failed to exhaust the requisite available state remedies prior to filing the instant action. Pursuant to 28 U.S.C. § 2254(b)(1):
An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant. See also, O’Sullivan v Boerckel, 526 US 838, 845 (1999). The exhaustion requirement “serves to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners’ federal rights. Duckworth v Serrano, 454 US 1, 3 (1981). Moreover, the Sixth Circuit has held, “ [A] federal habeas petitioner “must first exhaust the remedies available in state court by fairly presenting his federal claims before the state court; the federal court will not review unexhausted claims.” Irick v Bell, 565 F3d 315, 323 (6th Cir.2009)(citations and quotations omitted). “ A federal court will not review claims that were not entertained by the state court due to ... the petitioner's failure to raise those claims in the state courts while state remedies were
37

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.676 Page 38 of 43
available....” Id at 323-324 (citations and quotations omitted). This includes presentation of the claims to the state appellate courts where review is discretionary and part of the ordinary appellate procedure in the state. O’Sullivan, 526 US at 847. “Where state remedies remain available to the habeas petitioner who has not fairly presented his constitutional claim(s) to the state courts, the exhaustion doctrine precludes a federal court from granting him relief on that claim,..” Perruquet v Briley, 390 F3d 505, 514 (7th Cir. 2004).
The Money, supra, the court applied the exhaustion requirements to a situation involving plaintiffs who sought release due to concerns related to the COVID-19 pandemic. In Money, the court dismissed plaintiffs’ habeas petition holding that plaintiffs’ failed to raise their claims in the state courts. The court noted that the state courts were available for emergency matters. Id at *21. Notably, the court held, “[T]o be sure, exhaustion requirements can (and should) be waived when relief is truly unavailable. But waiving them here - when state courts clearly were available...would turn the habeas system upside down.” Id at *22.
Just as in Money, Plaintiffs in the instant action attempt to “turn the habeas system upside down” through their blatant disregard of available state remedies. Id. Plaintiffs have not and cannot show that they pursued their claims in any state court prior to filing the instant action. This alone is fatal to Plaintiffs’ habeas petition. 28
38

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.677 Page 39 of 43
U.S.C. § 2254(b)(1); Irick, supra. While it is anticipated Plaintiffs may argue that the state courts in Michigan are not available, this argument is without merit. The Oakland County Circuit Court has entered multiple orders indicating it remains available to handle “emergency matters.” (See Exhibit K, Oakland County Court Administrative Order, “[T]his Order is amended to continue emergency procedures...”). The Oakland County Circuit Court’s Order is consistent with the Michigan Supreme Court’s Administrative Order dated March 15, 2020 which states, “Trial Courts may adjourn...any criminal maters where the defendant is not in custody; where a criminal defendant is in custody, trial courts should expand the use of videoconferencing when the defendant consents.” (Exhibit L, Order). Indeed, Oakland County Circuit Court remains available to handle non-emergency matters as well. (See Exhibit K, “[N]on-emergency matters may be heard by audio or video conferencing...”). Simply put, Oakland County Circuit Court, and the available appeals court in Michigan remain available to hear emergency and non-emergency related issues. Despite the availability of the state courts, Plaintiffs failed to raise their claims in state court prior to filing the instant action. Therefore, Plaintiffs habeas petition contains a significant procedural defect and has no likelihood of success as required in order for the Court to enter a TRO. Once again, to the extent the Court’s TRO contemplates release of Plaintiffs and/or any subclass of same from Oakland
39

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.678 Page 40 of 43
County Jail, it contains a palpable defect and should be reconsidered and ultimately set aside. V. Closing Comments
Of course, Plaintiffs’ counsel knows that neither this Court nor the Oakland County Sheriff has the authority to release inmates once detained in the jail. Had Plaintiff’s counsel reached out in good faith to Sheriff Bouchard or his representatives they would have discovered the Sheriff’s department had already undertaken to seek compassionate releases of inmates considered at risk. Plaintiffs’ could have disclosed to this court and to the media in their press release that in March of this year, before any inmate tested positive for COVID-19, Sheriff Bouchard directed Major Charles Snarey to compile a list of medically vulnerable inmates to be evaluated for compassionate release. On March 30, 2020, the nursing staff prepared letters for submission to various Oakland County judges seeking the release of some inmates considered “at risk”. For reasons known only to the respective judges, some but not all “at risk” patients were released from the jail by court order. This information is being compiled and will be submitted to the court in a subsequent brief. Sheriff Bouchard is continuing to evaluate all new arrestees who have been housed in the jail since the original evaluation. Those deemed appropriate will be referred to the appropriate judge to be considered for compassionate release.
40

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.679 Page 41 of 43
Finally, Defendants would be remiss if they did not address the immediate negative consequences of this Court entering its TRO late Friday afternoon. Almost immediately upon entry of the Order, Plaintiffs’ attorneys issued a press-release regarding the Order and throughout the course of the weekend missed no opportunity to defame Sheriff Bouchard. As this Court can see from the extensive evidence presented in this Brief, the Court’s conclusion that “Oakland County has not imposed even the most basic safety measures recommended by health experts...” could not be further from the truth. As a result, Plaintiffs’ attorneys disparaging comments in the media regarding Sheriff Bouchard are outrageous and one could argue are politically motivated.
It is anticipated that Plaintiffs’ attorneys might argue that there was no damage to Sheriff Bouchard by the entry of the TRO because he is already executing the specific provisions of the TRO. However, this would be a disingenuous argument at best. The actions of the Plaintiffs’ attorneys over the weekend have the potential of causing significant damage to the trust that exists between Sheriff Bouchard and the residents of Oakland County whom Sheriff Bouchard has served as their Sheriff for over 20 years. Sheriff Bouchard has received numerous national awards recognizing his excellence in serving as Oakland County Sheriff. In addition, and perhaps most important in today’s political environment, he has served the County without any hint
41

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.680 Page 42 of 43

of impropriety or public scandal. Finally, as the Court can see from the evidence set forth in this Brief, his actions in light of the COVID-19 crisis have saved lives and not risked lives. Not a single Oakland County inmate has had the need to be hospitalized, nor has an Oakland County inmate died as a result of COVID-19 exposure.
Where does Sheriff Bouchard go to reclaim his reputation in today’s Twitter/Instagram/Facebook driven society?
RELIEF REQUESTED

WHEREFORE, Defendants respectfully request that this Honorable Court rescind its April 17, 2020, Opinion and Order granting Plaintiffs’ Motion for Temporary Restraining Order and scheduling a hearing for April 24, 2020 wherein Defendants are required to take measures prior to the hearing regarding the identity of “class members” for the reasons set forth above.

Dated: April 20, 2020

Respectfully submitted,
POTTER DeAGOSTINO O’DEA & CLARK
s/ STEVEN M. POTTER (P33344) Attorney for Defendants 2701 Cambridge Court, Suite 223 Auburn Hills, Michigan 48326 (248) 377-1700 spotter@potterlaw.com
42

Case 2:20-cv-10949-LVP-MJH ECF No. 17 filed 04/20/20 PageID.681 Page 43 of 43
CERTIFICATE OF SERVICE I hereby certify that on April 20, 2020, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to the attorneys of record, and I hereby certify that I have mailed by United States Postal Service the paper to the following non-ECF participants: N/A.
/s/ STEVEN M. POTTER (P33344) Attorney for Defendants 2701 Cambridge Court, Suite 223 Auburn Hills, Michigan 48326 (248) 377-1700 spotter@potterlaw.com
43

Case 2:20-cv-10949-LVP-MJH ECF No. 17-1 filed 04/20/20 PageID.682 Page 1 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 17-1 filed 04/20/20 PageID.683 Page 2 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 17-1 filed 04/20/20 PageID.684 Page 3 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 17-1 filed 04/20/20 PageID.685 Page 4 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 17-2 filed 04/20/20 PageID.686 Page 1 of 8

Case 2:20-cv-10949-LVP-MJH ECF No. 17-2 filed 04/20/20 PageID.687 Page 2 of 8

Case 2:20-cv-10949-LVP-MJH ECF No. 17-2 filed 04/20/20 PageID.688 Page 3 of 8

Case 2:20-cv-10949-LVP-MJH ECF No. 17-2 filed 04/20/20 PageID.689 Page 4 of 8

Case 2:20-cv-10949-LVP-MJH ECF No. 17-2 filed 04/20/20 PageID.690 Page 5 of 8

Case 2:20-cv-10949-LVP-MJH ECF No. 17-2 filed 04/20/20 PageID.691 Page 6 of 8

Case 2:20-cv-10949-LVP-MJH ECF No. 17-2 filed 04/20/20 PageID.692 Page 7 of 8

Case 2:20-cv-10949-LVP-MJH ECF No. 17-2 filed 04/20/20 PageID.693 Page 8 of 8

Case 2:20-cv-10949-LVP-MJH ECF No. 17-3 filed 04/20/20 PageID.694 Page 1 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 17-3 filed 04/20/20 PageID.695 Page 2 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.696 Page 1 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.697 Page 2 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.698 Page 3 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.699 Page 4 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.700 Page 5 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.701 Page 6 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.702 Page 7 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.703 Page 8 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.704 Page 9 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.705 Page 10 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.706 Page 11 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.707 Page 12 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.708 Page 13 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.709 Page 14 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.710 Page 15 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.711 Page 16 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.712 Page 17 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.713 Page 18 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.714 Page 19 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.715 Page 20 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.716 Page 21 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.717 Page 22 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.718 Page 23 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.719 Page 24 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.720 Page 25 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.721 Page 26 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.722 Page 27 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.723 Page 28 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.724 Page 29 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.725 Page 30 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.726 Page 31 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.727 Page 32 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-4 filed 04/20/20 PageID.728 Page 33 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 17-5 filed 04/20/20 PageID.729 Page 1 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 17-5 filed 04/20/20 PageID.730 Page 2 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 17-5 filed 04/20/20 PageID.731 Page 3 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 17-5 filed 04/20/20 PageID.732 Page 4 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 17-5 filed 04/20/20 PageID.733 Page 5 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 17-5 filed 04/20/20 PageID.734 Page 6 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 17-5 filed 04/20/20 PageID.735 Page 7 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 17-5 filed 04/20/20 PageID.736 Page 8 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 17-5 filed 04/20/20 PageID.737 Page 9 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 17-5 filed 04/20/20 PageID.738 Page 10 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 17-6 filed 04/20/20 PageID.739 Page 1 of 6

Case 2:20-cv-10949-LVP-MJH ECF No. 17-6 filed 04/20/20 PageID.740 Page 2 of 6

Case 2:20-cv-10949-LVP-MJH ECF No. 17-6 filed 04/20/20 PageID.741 Page 3 of 6

Case 2:20-cv-10949-LVP-MJH ECF No. 17-6 filed 04/20/20 PageID.742 Page 4 of 6

Case 2:20-cv-10949-LVP-MJH ECF No. 17-6 filed 04/20/20 PageID.743 Page 5 of 6

Case 2:20-cv-10949-LVP-MJH ECF No. 17-6 filed 04/20/20 PageID.744 Page 6 of 6

Case 2:20-cv-10949-LVP-MJH ECF No. 17-7 filed 04/20/20 PageID.745 Page 1 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 17-7 filed 04/20/20 PageID.746 Page 2 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 17-7 filed 04/20/20 PageID.747 Page 3 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 17-7 filed 04/20/20 PageID.748 Page 4 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 17-7 filed 04/20/20 PageID.749 Page 5 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 17-7 filed 04/20/20 PageID.750 Page 6 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 17-7 filed 04/20/20 PageID.751 Page 7 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 17-7 filed 04/20/20 PageID.752 Page 8 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 17-7 filed 04/20/20 PageID.753 Page 9 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 17-8 filed 04/20/20 PageID.754 Page 1 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 17-8 filed 04/20/20 PageID.755 Page 2 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 17-9 filed 04/20/20 PageID.756 Page 1 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 17-9 filed 04/20/20 PageID.757 Page 2 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 17-10 filed 04/20/20 PageID.758 Page 1 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 17-10 filed 04/20/20 PageID.759 Page 2 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 17-10 filed 04/20/20 PageID.760 Page 3 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 17-10 filed 04/20/20 PageID.761 Page 4 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 17-11 filed 04/20/20 PageID.762 Page 1 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 17-11 filed 04/20/20 PageID.763 Page 2 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 17-11 filed 04/20/20 PageID.764 Page 3 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 17-11 filed 04/20/20 PageID.765 Page 4 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 17-12 filed 04/20/20 PageID.766 Page 1 of 3

Case 2:20-cv-10949-LVP-MJH ECF No. 17-12 filed 04/20/20 PageID.767 Page 2 of 3

Case 2:20-cv-10949-LVP-MJH ECF No. 17-12 filed 04/20/20 PageID.768 Page 3 of 3

Case 2:20-cv-10949-LVP-MJH ECF No. 17-13 filed 04/20/20 PageID.769 Page 1 of 5

Case 2:20-cv-10949-LVP-MJH ECF No. 17-13 filed 04/20/20 PageID.770 Page 2 of 5

Case 2:20-cv-10949-LVP-MJH ECF No. 17-13 filed 04/20/20 PageID.771 Page 3 of 5

Case 2:20-cv-10949-LVP-MJH ECF No. 17-13 filed 04/20/20 PageID.772 Page 4 of 5

Case 2:20-cv-10949-LVP-MJH ECF No. 17-13 filed 04/20/20 PageID.773 Page 5 of 5

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 21 filed 04/17/20 PageID.777 Page 1 of 8

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON, RICHARD BRIGGS, RAJ LEE, MICHAEL CAMERON, and MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,

Plaintiffs, v.

Civil Case No. 20-10949 Honorable Linda V. Parker

MICHAEL BOUCHARD, CURTIS D. CHILDS, and OAKLAND COUNTY,

Defendants. ____________________________________/

AMENDED OPINION AND ORDER

On this date, Plaintiffs filed a putative class action complaint, raising grave

concerns about the conditions in the Oakland County Jail in the face of the novel

coronavirus (COVID-19) pandemic. Plaintiffs are Oakland County Jail pretrial or

convicted detainees. Plaintiffs seek to represent a class of all current and future

Oakland County Jail (hereafter also “Jail”) detainees, as well as the following sub-

classes:

 The First Subclass (“Pre-trial Subclass”) is defined as “All current and future persons detained at the Oakland County Jail during the course of the COVID-19 pandemic who have not yet been convicted of the offense for which they are currently held in the Jail.”

Case 2:20-cv-10949-LVP-MJH ECF No. 21 filed 04/17/20 PageID.778 Page 2 of 8
 The Second Subclass (“Post-conviction Subclass”) is defined as “All current and future persons detained at the Oakland County Jail during the course of the COVID-19 pandemic who have been sentenced to serve time in the Jail or who are otherwise in the Jail as the result of an offense for which they have already been convicted.”
 The Third Subclass (“Medically-Vulnerable Subclass”) is defined as: “All members of the Jail class who are also over the age of fifty or who, regardless of age, experience an underlying medical condition that places them at particular risk of serious illness or death from COVID-19 ….”
Plaintiffs also filed an emergency motion for temporary restraining order (“TRO”)
in which they ask the Court to order (a) the release of members of the Medically-
Vulnerable Subclass pending briefing and argument and (b) the undertaking of
certain measures to improve hygiene and safety at the Jail.
Having reviewed Plaintiffs’ Complaint and pending motion, the Court is
granting at this time Plaintiffs’ request for a TRO requiring Defendants to utilize
the measures set forth below to improve hygiene and safety at the Jail.1 The Court,
however, is without sufficient information to rule on Plaintiffs’ request to release
all members of the Medically-Vulnerable Subclass and is scheduling a hearing to
1 The Court is not imposing all of the measures requested by Plaintiffs and will discuss those measures that are omitted with the parties during the hearing scheduled infra.
2

Case 2:20-cv-10949-LVP-MJH ECF No. 21 filed 04/17/20 PageID.779 Page 3 of 8
address that request. The Court has considered the following factors in deciding whether to issue the TRO:
(1) whether the movant has a strong likelihood of success on the merits, (2) whether the movant would suffer irreparable injury absent a stay, (3) whether granting the stay would cause substantial harm to others, and (4) whether the public interest would be served by granting the stay. Ohio Republic Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008). For purposes of this decision, the Court is accepting the allegations in Plaintiffs’ Complaint and its attachments as true without briefing or evidentiary submissions by Defendants. The Court is not making a finding of wrongdoing on the part of any defendant and no defendant is deemed to have waived any defenses to this action. The Court is acting without notice to Defendants because it finds that any delay will increase the risk of serious physical harm to Plaintiffs. The Court finds that Plaintiffs are likely to succeed on the merits of their claim alleging that jail conditions violate their Eighth and Fourteenth Amendment rights. Plaintiffs’ allegations reflect that Oakland County has not imposed even the most basic safety measures recommended by health experts, the Centers for Disease Control and Prevention, and Michigan’s Governor to reduce the spread of
3

Case 2:20-cv-10949-LVP-MJH ECF No. 21 filed 04/17/20 PageID.780 Page 4 of 8
COVID-19 in detention facilities. It cannot be disputed that COVID-19 poses a serious health risk to Plaintiffs and the putative class.2
Plaintiffs also are likely to suffer irreparable harm absent an injunction, as they face a heightened risk of contracting this life-threatening virus simply as incarcerated individuals and even more so without the imposition of these cautionary measures. Entering an injunction requiring Defendants to adopt the safety precautions set forth below poses no harm to them other than potentially increased costs and energy, which are insufficient to justify a denial of Plaintiffs’ motion. See Mich. Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991). “[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994).
Accordingly, IT IS ORDERED that Defendants shall as soon as practicable, or at least within ten (10) days of this Opinion and Order, undertake the following minimum measures:
(1) Ensure that each incarcerated person receives, free of charge: (a) an individual supply of liquid hand soap and paper towels sufficient to allow regular hand washing and drying each day, and (b) an adequate supply of
2 A spread of the virus among incarcerated persons also poses a grave risk of harm to the jail employees with whom they interact.
4

Case 2:20-cv-10949-LVP-MJH ECF No. 21 filed 04/17/20 PageID.781 Page 5 of 8
disinfectant hand wipes or disinfectant products effective against the COVID-19 virus for daily cleanings;
(2) Ensure that all incarcerated people have no-cost access to hand sanitizer containing at least 60% alcohol where permissible based on security restrictions;
(3) Provide access to showers and clean laundry, including clean personal towels on a regular basis, but at a minimum on a weekly basis;3
(4) Ensure that, to the fullest extent possible, all Jail staff wear personal protective equipment, including masks, when interacting with any person or when touching surfaces in cells or common areas;
(5) Ensure, to the fullest extent possible, that all Jail staff wash their hands with soap and water or use hand sanitizer containing at least 60% alcohol both before and after touching any person or any surface in cells or common areas. Consider allowing staff to carry individual sized bottles while on duty;
(6) Establish protocol through which an incarcerated person may self-report symptoms of COVID-19 infection and to evaluate those symptoms, including temperature monitoring;
(7) Conduct immediate testing for anyone displaying known symptoms of COVID-19;
(8) Provide adequate spacing of six feet or more between people incarcerated, to the maximum extent possible, so that social distancing can be accomplished;
3 At the hearing, the Court will address whether it should set forth a specific frequency for these items after weighing regular Jail practices and any information reflecting the need for more frequency during the COVID-19 pandemic.
5

Case 2:20-cv-10949-LVP-MJH ECF No. 21 filed 04/17/20 PageID.782 Page 6 of 8
(9) Ensure that individuals identified as having COVID19, with symptoms of COVID-19, or having been exposed to COVID-19 receive adequate medical care and are properly quarantined in a non-punitive setting, with continued access to showers, mental health services, reading materials, phone and video calling with loved ones, communications with counsel, and personal property (to the extent reasonable and necessary to the inmate’s physical and mental well-being). Such individuals shall remain in quarantine and wear face masks when interacting with other individuals until they are no longer at risk of infecting other people;
(10) Respond to all COVID-19 related emergencies (as defined by the medical community) within an hour;
(11) Provide sufficient disinfecting supplies, without cost, so incarcerated people can clean high-touch areas or items (including, but not limited to, phones and headphones) between each use;
(12) Effectively communicate to all people incarcerated, including low-literacy and non-English-speaking people, sufficient information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices to reasonably ensure that individuals are able to take precautions to prevent infection;
(13) Train all staff regarding measures to identify inmates with COVID-19, measures to reduce transmission, and the Jail’s policies and procedures during this crisis (including those measures contained in this Order);
(14) Refrain from charging medical co-pays before treatment is provided to those experiencing COVID-19related symptoms, including testing;4
4 The Court will consider at the hearing whether co-pays may be charged if payment is not required before treatment or testing.
6

Case 2:20-cv-10949-LVP-MJH ECF No. 21 filed 04/17/20 PageID.783 Page 7 of 8
(15) Waive all charges for medical grievances during this pandemic until further order of the Court5;
(16) Cease and desist (a) all use of punitive transfers or threats of transfers to areas of the jail that have higher infection rates (or any other form of threat involving increased exposure to infection) for any infraction whatsoever; and (b) all retaliation in any form, against class members who raise concerns either formally or informally about the health and safety conditions in the Jail.6
IT IS FURTHER ORDERED, that Defendants shall take the following
measures in preparation for the TRO hearing:
(1) Promptly provide Plaintiffs and the Court with a list of all individuals who are members of the MedicallyVulnerable Subclass as defined in paragraph 94 of Plaintiffs’ Complaint, which includes their location, charge and bond status; and,
(2) Promptly thereafter provide Plaintiffs and the Court with a list of any individuals in the Medically-Vulnerable Subclass who Defendants object to releasing and the basis for that objection.
IT IS FURTHER ORDERED that the parties shall appear before the
undersigned for a telephonic conference call on Monday, April 20, 2020 at 11:00
5 The Court will address at the hearing whether charges for medical grievances should be allowed if payment is not required before a grievance is accepted and addressed. 6 At the hearing, the Court will address Plaintiffs’ request for an injunction restraining Defendants from taking “all punitive measures … against class members who decline to engage in labor on the grounds that such labor represents a threat to their health and safety or the health and safety of other class members.”
7

Case 2:20-cv-10949-LVP-MJH ECF No. 21 filed 04/17/20 PageID.784 Page 8 of 8
a.m., and for a telephonic hearing on Friday, April 24, 2020 at 11:00 a.m. For both the conference and hearing, Counsel shall call the Court’s toll-free conference line at 1-888-808-6929 and use Access Code 8141695.
IT IS SO ORDERED. s/ Linda V. Parker LINDA V. PARKER U.S. DISTRICT JUDGE
Dated: April 17, 2020 at 5:52 p.m.
8

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 27 filed 04/22/20 PageID.791 Page 1 of 6

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON, RICHARD BRIGGS; RAJ LEE, MICHAEL CAMERON, and MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,

Civil Case No. 20-cv-10949 Honorable Linda V. Parker

v. MICHAEL BOUCHARD, CURTIS D. CHILDS, and OAKLAND COUNTY, MICHIGAN,

Defendants. __________________________________/

INSPECTION ORDER

This matter is before the Court following the telephonic status conferences

held on April 21 and 22, 2020. The Court orders as follows:

1. An inspection shall take place of the Oakland County Jail (“the Jail”)

on April 23, 2020. The inspection will be conducted by Dr. Carlos Franco-

Paredes. The inspector shall be provided or wear his own full personal protective

equipment, including an N-95 mask and gloves, to safely enable his inspection.

The inspector shall maintain social distancing when interacting with Jail inmates

and staff. Prior to beginning the inspection, the inspector shall be screened

consistent with the screening performed of Jail staff, be subject to a COVID-19 test

Case 2:20-cv-10949-LVP-MJH ECF No. 27 filed 04/22/20 PageID.792 Page 2 of 6
administered by the Jail, and be able to answer the following questions in the negative: whether the inspector (a) has experienced recent coughing, shortness of breath, or fever and (b) had any known exposure to anyone with the virus over last 14 days.
2. For the protection of the public health of the tri-county area, every reasonable measure should be taken to obtain a 15-minute COVID-19 test for the inspector, Dr. Carlos Franco-Paredes, as early as possible on the morning of April 23, 2020, to facilitate his inspection of the Oakland County Jail.
3. When speaking with inmates, the inspector may provide his name and indicate that he does not work for the Jail. The inspector also may inform inmates that he is there to evaluate the health and safety conditions within the jail and that they will not be retaliated against for speaking with him and answering his questions. The inspector may not provide further details about who he works for, that he has been retained by a specific party, or that he is inspecting the jail pursuant to a court order.
4. The inspector shall provide a report to the parties and the Court by April 27, 2020 at 5:00 p.m. The report shall be filed under seal until a redacted version that does not include photographs or video depicting the Jail can be publicly filed. The report shall include factual information, photographs and/or
2

Case 2:20-cv-10949-LVP-MJH ECF No. 27 filed 04/22/20 PageID.793 Page 3 of 6
video, documenting whether and to what extent the steps outlined in the Temporary Restraining Order (ECF No. 12) have been implemented.
5. The inspection shall be completed within a five-hour time frame and shall include the following areas:
• All housing units where inmates are housed, including but not limited to all areas listed in Defendants’ Motion for Reconsideration, Exhibit I (ECF No. 17-9);
• Housing units where quarantined inmates are being held;
• The ingress/egress staff screenings; • Medical facilities; • Classroom areas; • Dining facilities; • Laundry facilities; • Shower/bathroom facilities; and • Areas where cleaning supplies and personal
protective equipment are maintained. The inspector’s reports shall include any information he was able to ascertain regarding the following:
• Cleanliness of the housing units; • Cleanliness of and access to shower/bathroom
facilities;
3

Case 2:20-cv-10949-LVP-MJH ECF No. 27 filed 04/22/20 PageID.794 Page 4 of 6
• Cleanliness of and access to medical, laundry and dining facilities;
• Availability and stock of cleaning supplies and personal protective equipment for inmates and Jail staff;
• Availability and stock of hygienic and disinfecting supplies for inmates and Jail staff;
• Availability of communications to inmates about COVID-19 including low-literacy and nonEnglish-speaking people; and
• Social distancing measures
6. During the course of the inspection, the inspector shall be permitted to
ask inmates questions about the following topics outlined in the Court’s Temporary
Restraining Order (ECF No. 12):
• Availability and access to medical staff;
• Availability and access to free medical care for COVID-19 testing, COVID-19 tests, grievances, showers, mental health services, reading materials, phone and video calls, and counsel whether in quarantine or not;
• Availability and access to personal protective equipment;
• Self-reporting procedures for COVID-19 symptoms;
• Whether detained people have received sufficient cleaning and hygiene supplies, as required by the Court’s order and the time it takes to receive them; and 4

Case 2:20-cv-10949-LVP-MJH ECF No. 27 filed 04/22/20 PageID.795 Page 5 of 6
• Incidents of punitive transfers, threats of punitive transfers, and concerns about retaliation for raising concerns formally or informally with Jail staff about the health and safety conditions at the Jail.
7. The inspector will be limited to asking a maximum of three (3) people in each housing unit (the Main Jail, Annex and East Annex) questions on the topics listed in paragraph 2 above.
8. Counsel for Plaintiffs shall not contact anyone held inside the Jail in advance of the inspection to prepare them for the inspection or to alert them to the inspection. Plaintiffs’ counsel shall not request that the inspector speak with any individual people held inside the jail. Nothing in this paragraph prohibits Plaintiffs’ counsel and their agents from talking to people held inside the Jail about its conditions, so long as they do not mention or refer to the impending inspection.
9. No attorney for either side shall attend the inspection. The Jail shall assign one or more individuals to accompany the inspector and shall take photographs or videos at the direction of the inspector. No other photographs or videos will be taken during the inspection, nor will any equipment for such recordings be allowed inside the Jail. Photographs or videos will be shared with each party through their attorneys within four (4) hours of the inspection.
10. Any videos or photographs of the Jail shall be kept confidential by all attorneys on this case and shall not be used for any purpose other than this
5

Case 2:20-cv-10949-LVP-MJH ECF No. 27 filed 04/22/20 PageID.796 Page 6 of 6
litigation and shall not be provided to any third-party or inmate absent leave of the Court. No photographs of Jail staff shall be taken. No photographs or videos of inmates shall be taken without their express consent. All videos or photographs of the Jail shall be filed under seal.
IT IS SO ORDERED. s/ Linda V. Parker LINDA V. PARKER U.S. DISTRICT JUDGE
Dated: April 22, 2020
6

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1055 Page 1 of 57

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,
v. MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,
Defendants.

Case No. 20-cv-10949 Hon. Linda V. Parker

PLAINTIFFS’ COMBINED BRIEF IN RESPONSE TO DEFENDANTS’ MOTION TO DISMISS AND IN REPLY TO DEFENDANTS’ RESPONSE
TO PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1056 Page 2 of 57
TABLE OF CONTENTS Index of Authorities ................................................................................................iii Introduction .............................................................................................................1 BACKGROUND AND FACTS .............................................................................3 I. The COVID-19 Crisis Is a Health Crisis Unmatched
in Living Memory.........................................................................................3 II. COVID-19 Presents a Particularly Serious Risk in
Jail Environments. ........................................................................................5 III. The Dangerous Conditions at the Jail on April 17 ......................................6
A. Detained People at the Jail Cannot Practice Social Distancing. ........7 B. Defendants Do Not Properly Screen or Quarantine
Suspected Cases. ................................................................................8 C. Defendants Do Not Provide Adequate or Timely Health Care..........10 D. Defendants Maintain Dangerous Conditions and Fail to
Provide Basic Hygiene Supplies to the People Confined at the Jail.............................................................................12 E. Defendants Fail to Provide Information About COVID-19...............14 F. People Are Punished by Being Exposed to COVID-19.....................14 STANDARD OF REVIEW ....................................................................................15 ARGUMENT ..........................................................................................................16 I. THIS COURT HAS JURISDICTION TO REMOVE MEDICALLY VULNERABLE SUBCLASS MEMBERS FROM THE JAIL. ..................16 A. This Court Has Jurisdiction to Entertain a Federal Habeas Petition Alleging Eighth and Fourteenth Amendment Violations. .................16
i

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1057 Page 3 of 57
1. Habeas Is Available When the Only Viable Remedy to a Constitutional Violation Is Removal from Detention..............16
2. Habeas Can Be Granted in a Way That Protects the Public. ...22 3. Petitioners Are Not Required to Exhaust Their Claims ..........25
a. State-Level Habeas Relief Is Unavailable to Plaintiffs ......25 b. Even If State Remedies Were Available, the Exhaustion
Requirement Should Be Waived in Light of the Unique Threat Posed by Covid-19. ............................................28 B. Alternatively, Removals from Jail Are Authorized Under § 1983. ...30 II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR EIGHTH AND FOURTEENTH AMENDMENT CLAIMS. ...36 A. Plaintiffs Have Made a Strong Showing of Defendants’ Deliberate Indifference to the Grave Risk of Harm Posed by COVID-19. ..............36 1. COVID-19 Presents an Objectively Unreasonable Risk. ........39 2. Defendants Are Subjectively Aware of the Risks ...................40 B. Defendants’ Deliberate Indifference Is Attributable to Oakland County Under Monell...........................................................................................46 Conclusion ..............................................................................................................49
ii

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1058 Page 4 of 57
TABLE OF AUTHORITIES
Page(s)
Cases Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011) .........................................17 Armstrong v. Cardwell, 457 F.2d 34, 36 (6th Cir. 1972) ........................................16 Avendano Hernandez v. Decker, 2020 WL 1547459 (S.D.N.Y. Mar. 31, 2020)....19 Basank v. Decker, __ F. Supp. 3d __, No. 20-cv-2518, 2020 WL 1481503
(S.D.N.Y. Mar. 26, 2020) .....................................................................................19 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)....................................15 Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 498 (1973)................17 Brown v. Plata, 563 U.S. 493, 510 (2011)...............................................................30 Burton v. McGlasson, No. 14-CV-10693, 2014 WL 700503 (E.D. Mich. Feb. 24,
2014) .....................................................................................................................20 Calderon Jimenez v. Wolf, No. 18-cv-10225 (D. Mass. Mar. 26, 2020) .................19 Chambers v. Bouchard, No. 20-cv-10949 (E.D. Mich. Apr. 20, 2020) ..................21 Christian v. Wellington, 739 F.3d 294, 297 (6th Cir. 2014)....................................18 City of Oklahoma v. Tuttle, 471 U.S. 808, 823-24 (1985).......................................49 Coronel v. Decker, __ F. Supp. 3d __, No. 20-cv-2472, 2020 WL 1487274
(S.D.N.Y. Mar. 27, 2020) .....................................................................................19 Davis v. Zych, No. 9-11459, 2009 WL 1212489 (E.D. Mich. May 4, 2009) ..........20 DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 199–200
(1989) ....................................................................................................................47 Dow Corning Corp., 199 B.R. 896, 899 (E.D. Mich. 1996 (quoting Gomez v.
United States, 490 U.S. 858, 864 (1989)..............................................................34 Duvall v. Dallas Cty., Tex., 631 F.3d 203 (5th Cir. 2011).......................................47 Estelle v . Gamble, 429 U.S. 97, 104 (1976) ...........................................................37 Farmer v. Brennan, 511 U.S. 825, 828 (1994)........................................................36 Flanory v. Bonn, 604 F.3d 249, 255 (6th Cir. 2010) ...............................................37 Fraihat v. Wolf, No. 20-cv-590 (C.D. Cal. Mar. 31, 2020) .....................................19 Francisco Hernandez v. Wolf, No. 20-cv-617 (C.D. Cal. Apr. 1, 2020).................19 Gilmore v. California, 220 F.3d 987, 998 n.12 (9th Cir. 2000) ..............................33 Glaus v. Anderson, 408 F.3d 382, 384 (7th Cir. 2005)............................................20 Granberry v. Greer, 481 U.S. 129, 134 (1987) .......................................................28 Gregory v. Shelby Cty., 220 F.3d 433, 442 (6th Cir. 2000).....................................48 Hadix v. Johnson, 367 F.3d 513, 526 (6th Cir. 2004) .............................................42 Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 538 (6th Cir. 2012) ...........15 Helling v. McKinney, 509 U.S. 25, 28, 35 (1993) ...................................................37 In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985)...........................16
iii

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1059 Page 5 of 57
Irick v. Bell, 565 F.3d 315, 323 (6th Cir. 2009) ......................................................27 Jackson v. Johnson, 475 F.3d 261, 265-66 (5th Cir. 2007).....................................35 Jovel v. Decker, No. 12-cv-308, 2020 WL 1467397 (S.D.N.Y. Mar. 26, 2020).....19 Kingsley v. Hendrickson, 576 U.S. 389 (2015) .......................................................38 Malam v. Adducci, __ F. Supp. 3d __, 2020 WL 1672662 (E.D. Mich. Apr. 5,
2020) .....................................................................................................................18 Martin v. Zych, No. 09-10423, 2009 WL 398166 (E.D. Mich. Feb. 17, 2009).......20 Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978) ..............46 Money v. Pritzker, __ F. Supp. 3d __, 2020 WL 1820660 (Apr. 10, 2020) ............27 Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000)........................................17 Moses v. Dep’t of Corrs., 736 N.W.2d 269, 273 (Mich. Ct. App. 2007) ................26 Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008) ..................16 People v. McSwain, 676 N.W.2d 236, 248 (Mich. Ct. App. 2003) .........................27 People v. Stauffer, 640 N.W.2d 869, 870 n.7 (Mich. 2002) ....................................36 Peterson v. Diaz, No. 19-01480, 2020 WL 1640008 (E.D. Cal. Apr. 2, 2020) ......21 Phillips v. Warden, 396 N.W.2d 482, 486 (Mich. Ct. App. 1986) ..........................26 Plata v. Brown, __ F. Supp. 3d __, 2013 WL 12436093, at *8 (N.D. Cal. June 24,
2013) .....................................................................................................................35 Preiser v. Rodriguez, 411 U.S. 475, 498 (1973)......................................................18 Puertas v. Overton, 272 F. Supp. 2d 621, 626 (E.D. Mich. 2003) ..........................28 Rafael L.O. v. Tsoukaris, No. 20-cv-3481, 2020 WL 1808843 (D.N.J. Apr. 9,
2020) .....................................................................................................................19 Reaves v. Dep’t of Corr., 404 F. Supp. 3d 520, 523 (D. Mass. 2019).....................33 Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th Cir. 2018) .......................................38 Rockwell v. Yukins, 217 F.3d 421, 423–24 (6th Cir. 2000) .....................................29 Sasser v. Hobbs, 735 F.3d 833, 844 (8th Cir. 2013)...............................................34 Savino v. Souza, __ F. Supp. 3d __, No. 20-10617-WGY, 2020 WL 1703844, at
*8–9 (Apr. 8, 2020) ..............................................................................................24 Savino v. Souza, No. 20-10617-WGY, Doc. No. 44, at 3 (Apr. 4, 2020)................25 see Fofana v. Albence, __ F. Supp. 3d __, 2020 WL 1873307 (E.D. Mich. April 15,
2020) .....................................................................................................................19 See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) ..........................16 Talal v. White, 403 F.3d 423, 427 (6th Cir. 2005)...................................................37 Thakker v. Doll, __ F. Supp. __, 2020 WL 1671563, at *9 (M.D. Pa. Mar. 31,
2020) .................................................................................................................1, 19 Triplett v. Deputy Warden, 371 N.W.2d 862, 780 (Mich. Ct. App. 1985)..............26 Turner v. Bagley, 401 F.3d 718, 724 (6th Cir. 2005) ..............................................25 United States v. $11,500 in United States Currency, 869 F.3d 1062, 1071 (9th Cir.
2017) .....................................................................................................................34 United States v. Jalili, 925 F.2d 889, 893–94 (6th Cir. 1991).................................17
iv

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1060 Page 6 of 57
United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001) ...............................17 Villegas v. Metro. Govt. of Nashville, 709 F.3d 563, 568 (6th Cir. 2013) ..............38 Washington v. Elo, No. 99-CV-71187, 2000 WL 356353, at *4 (E.D. Mich. Feb.
29, 2000) ...............................................................................................................26 Wilson v. Williams, __ F. Supp. 3d __, 2020 WL 1940882 (N.D. Ohio Apr. 22,
2020) .....................................................................................................................19 Witzke v. Femal, 376 F.3d 744, 752 (7th Cir. 2004)................................................36 Statutes 18 U.S.C. § 3626 ............................................................................................... 31, 32 28 U.S.C. § 2241 ..................................................................................................2, 17 28 U.S.C. § 2254(b)(1)(B)(i) ...................................................................................25 28 U.S.C. §§ 2241, 2254..........................................................................................25 42 U.S.C. § 1983 ..................................................................................... 2, 16, 30, 46 Other Authorities Mich. Comp. Laws § 600.4310(3) ...........................................................................26 Mich. Ct. R. 3.303(a) ...............................................................................................25
v

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1061 Page 7 of 57
INTRODUCTION As COVID-19 ravages jails and prisons throughout the country where
medically vulnerable people are confined to spaces in which social distancing is
impossible, Oakland County officials proclaim that they are “entitled to great
deference in the operation of prison facilities.” Def. Br. at 48. But this Court should
follow the lead of so many others that have refused to stand idly by in the face of
grave danger to vulnerable populations, as in Thakker v. Doll, __ F. Supp. __, 2020
WL 1671563, at *9 (M.D. Pa. Mar. 31, 2020):
Our world has been altered with lightning speed, and the results are both unprecedented and ghastly. We now face a global pandemic in which the actions of each individual can have a drastic impact on an entire community. The choices we now make must reflect this new reality. . . . Our Constitution and laws apply equally to the most vulnerable among us, particularly when matters of public health are at issue. This is true even for those who have lost a measure of their freedom. If we are to remain the civilized society we hold ourselves out to be, it would be heartless and inhumane not to recognize [their] plight. And so we will act. In Defendants’ combined motion to dismiss and response to Plaintiffs’ motion
for a preliminary injunction,1 they argue that (a) this Court is literally powerless to
1 Defendants mislabel the “response” portion of their filing as a “response to motion for temporary restraining order.” This Court has already granted a TRO and has denied in large part Defendant’s motion to reconsider. Thus, the relevant motion before the Court is Plaintiffs’ motion for a preliminary injunction, so this Court should construe Defendant’s filing as a response to that motion.

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1062 Page 8 of 57
order the removal of medically vulnerable individuals from the Oakland County Jail even though they face a high risk of death or serious harm should they contract a deadly virus that is already spreading through the facility, and (b) this Court should deny preliminary injunctive relief despite overwhelming evidence that the Jail environment is perilous for everyone confined there.
The Court should reject both those positions. Plaintiffs can seek habeas relief under 28 U.S.C. § 2241 or removal to another location under 42 U.S.C. § 1983 on behalf of the Medically Vulnerable Subclass because removal from the Jail is the only remedy that would safeguard their constitutional rights—and lives. Therefore, Defendants’ motion to dismiss Counts III and IV of Plaintiffs’ petition and complaint should be denied. Additionally, Plaintiffs are entitled to both forms of preliminary injunctive relief sought in their motion because they are likely to prevail on their claims and the equities weigh in their favor. On Counts I and II, the Court should convert its TRO into a preliminary injunction and grant further relief requested in Plaintiffs’ motion regarding the unsafe policies and practices endangering the health and lives of all people confined in the Jail. And on Counts III and IV, the Court should order the Medically Vulnerable Subclass removed or released from the Jail without delay, as they face a high risk of death or serious harm that cannot be alleviated by the Count I and II relief sought for the class as a whole. Should an
2

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1063 Page 9 of 57
evidentiary hearing be required to resolve any material disputes of fact, Plaintiffs request that one be scheduled at the earliest possible opportunity.
BACKGROUND AND FACTS I. The COVID-19 Crisis Is a Health Crisis Unmatched in Living Memory.
As this Court knows, we are in the midst of an unprecedented public health crisis, see Compl. ¶ 19 (citing sources), and southeastern Michigan is an epicenter.2 Things have only gotten worse in the ten days since Plaintiffs filed this suit: nationally, the number of people diagnosed with COVID-19 has increased by over 50%, and the number of confirmed deaths has more than doubled from 24,000 to over 52,000.3 In Michigan there are over 37,000 cases and 3,300 deaths confirmed, approximately one-sixth of which are in Oakland County.4 Plaintiffs’ Complaint recounts in detail the scope of the national disaster; the extraordinary governmental emergency responses; and the horrific nature of COVID-19, which has been
2 See Melissa Nann Burke, Michigan COVID-19 Deaths at 2,700 as Cases Rise to Nearly 33,000, Detroit News (Apr. 21, 2020), https://www.detroitnews.com/ story/news/local/michigan/2020/04/21/michigan-deaths-2700-cases-rise-nearly33000/2997405001/. 3 Compare TRO Br. at 5, with Coronavirus 2019, Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited Apr. 26, 2020). 4 Coronavirus Michigan Data, Michigan.gov, https://www.michigan.gov/ coronavirus/0,9753,7-406-98163_98173---,00.html (last visited Apr. 26, 2020).
3

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1064 Page 10 of 57
compared to “drowning in your own blood.” They will not belabor these points further here.
What is critical for purposes of the instant motions is the highly contagious nature of COVID-19 and the particularly grim toll it has on medically vulnerable individuals. The coronavirus is highly contagious and “very efficient” at passing from person to person through respiratory droplets that can survive on inanimate surfaces that people touch. Compl. Ex. 14 ¶ 21 (“Lauring Decl.”). Although anyone can die or suffer serious organ damage from the virus, among medically vulnerable people the risk of a “poor outcome” such as death or the need for “mechanical intervention” (such as a ventilator) is over 20%. Id. ¶ 22. Indeed, 74% of all cases requiring hospitalization involve individuals over the age of 50. Id.; see Compl. ¶ 23. Between 1% and 4% of all infected people die, a rate about ten times higher than a severe seasonal influenza. Id. ¶ 22. Predictably, “serious illness and death are most common among people with underlying chronic health conditions.” Id.
The only known effective measure to mitigate the risk is to prevent infection in the first instance. Compl. ¶ 29. Accordingly, medical experts, officials, and the CDC urge “social distancing”—isolating oneself from other people at a minimum distance of six feet—as well as frequent hand-washing, use of hand sanitizer, and frequent cleaning and disinfecting of high-touch surfaces and objects. Id. ¶ 30.
4

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1065 Page 11 of 57
II. COVID-19 Presents a Particularly Serious Risk in Jail Environments. Jails are congregate settings in which “infectious diseases that are transmitted
via the air or touch, as does COVID-19[,] are more likely to spread.” Compl. Ex. 1 ¶ 7 (“Stern Decl.”). As a result, a jail outbreak can rapidly become a “public health disaster unfolding before our eyes.” Lauring Decl. ¶ 10. This is due to several factors, including forced proximity of detained individuals/inability to socially distance, lack of medical and hygiene supplies, reliance on hospitals for serious medical care, forced labor of incarcerated people in cleaning their own facilities with insufficient supplies, constant cycling of people through the jails, and inadequate medical care within the jail itself. Compl. ¶ 32; Lauring Decl. ¶¶ 12-16. Indeed, it is “nearly impossible for jails and prisons to provide the atmosphere of ‘shelter in place’ or ‘stay at home’ social distancing given the number of individuals that work in and are housed in these facilities in the current system.” Lauring Decl. ¶ 24.
The Centers for Disease Control’s (“CDC’s”) guidance for detention facilities recognizes that social distancing is the “cornerstone” of outbreak prevention. Compl. Ex. 6 at 4. Moreover, to the extent the guidance imply that social distancing of less than 6 feet can ever be used, is “incorporate[s] a ‘harm reduction’ approach” that “recognizes that though there is an appropriate and safe way to address a public health problem, people do not always do things in that way.” Stern Decl. ¶ 9. Thus, the guidance “does not mean that it is safe to have less than six feet of social distance
5

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1066 Page 12 of 57
in a jail, and in fact a carceral setting that does not allow for such social distancing is not a safe one and is likely to facilitate the spread of COVID-19.” Id.
Outbreaks around the country, which predated the current outbreak at the Oakland County Jail, demonstrated as much for the world to see. In New York City’s Riker’s Island Jail, for example, the first case was detected on March 18 and a week later there were 75 cases, representing an infection rate seven times higher than New York City; the carnage has only increased with a current infection rate of 9.29%, two dead jail officers and more than 800 incarcerated people were in quarantine. Compl. ¶ 40 (and sources cited therein).
Nor can an outbreak be contained inside the Jail. What happens to the people in jails affects others who cycle through, including correctional and medical staff. Stern Decl. ¶ 11. Jail outbreaks spread to staff’s families and the community, and can quickly overwhelm regional hospitals, making resources unavailable to treat others suffering from COVID-19 or life-threatening conditions like heart attacks. Compl. ¶ 40; Stern Decl. ¶ 11. That risk is particularly grave in southeastern Michigan where jails and hospitals are already at a breaking point. Lauring Decl. ¶¶ 17, 23, 32; Compl. ¶ 61 (and sources cited therein). III. The Dangerous Conditions at the Jail on April 17
The facts pled and declarations submitted by Plaintiffs paint a mutually corroborating portrait of the Jail when this lawsuit was filed. They “highlight a
6

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1067 Page 13 of 57
number of conditions or practices that are inconsistent with current public health recommendations: crowded conditions which do not allow safe distancing; unsafe practices for isolating residents with suspected COVID-19; inadequate disinfection of frequently touched common surfaces, inadequate provision of supplies for disinfecting surfaces; inadequate provision of hand soap, and inadequate access to episodic care (barriers to requesting care and insufficient evaluation when care is accessed).” Stern Decl. ¶15. Indeed, the conditions show that “[t]he Oakland County Jail is not only obviously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak . . . but in some cases . . . it is intentionally exposing inmates to COVID-19 as retribution for raising concerns about safety.” Lauring Decl. ¶ 27. These conditions are described point by point in the sections that follow.
A. Detained People at the Jail Cannot Practice Social Distancing. Social distancing is impossible at the Jail. Some people have to sleep a foot apart. TRO Ex. G (“Saunders Decl.”) ¶ 2. In the holding cell, often referred to as “the tank,” inmates sleep on the concrete floor, close enough together to be nearly “cuddl[ing].” TRO Ex. B (“J. Cameron Decl.”) ¶ 9; TRO Ex. D (“Lee Decl.”) ¶19. In many other cells, bunks are separated by about three feet. Ex. E (“M. Cameron Decl.”) ¶ 6; Ex. F (“Kucharski Decl.”) ¶ 3; Ex. H (“Arsineau Decl.”) ¶ 2; Ex. C (“Briggs Decl.”) ¶ 2. Inmates share showers, toilets, and sinks either on a section-
7

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1068 Page 14 of 57
wide basis or sometimes with the others in their cell. E.g., J. Cameron Decl. ¶¶ 17– 18 (Annex)5; Briggs Decl. ¶¶ 3–5. Some bunks adjoin toilets. Briggs Decl. ¶ 9.
When people are allowed to leave their cells or are in common space, they are often within one or two feet of other detainees and staff. Arsineau Decl. ¶ 3; Briggs Decl. ¶ 2; Bates Decl. ¶ 9; J. Cameron Decl. ¶ 16; Lee Decl. ¶ 2; Kucharski Decl. ¶ 13. People detained in the tanks can reach through the bars in front of their cell and into the next cell, where quarantined people are housed in similarly dungeon-like circumstances. Lee Decl. ¶ 21; J. Cameron Decl. ¶ 9.
Because of this “layout and crowded environment,” the Jail “is not following basic CDC protection and prevention” measures, making it “impossible to prevent the risk or spread of infection.” Lauring Decl. ¶ 28.
B. Defendants Do Not Properly Screen or Quarantine Suspected Cases.
Incarcerated people are moved between cells with disregard for the health consequences. In the tanks, a cell under quarantine was emptied, and healthy people were moved into it without it having been cleaned. Lee Decl. ¶ 23. Hair was still on the floor, and the toilet had not been cleaned. Lee Decl. ¶ 23. And an individual who was moved out his cell because he had a high temperature was sent back into his cell
5 The Jail is composed of three sections, the main jail building, where the COVID19 outbreak has been concentrated, and two annex buildings which have not yet experienced a (known) widespread outbreak. See J. Cameron Decl. ¶ 3.
8

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1069 Page 15 of 57
to retrieve his own belongings, further exposing his cellmates. M. Cameron Decl. ¶ 12. On April 11, 2020, someone in a quarantine cell died. Lee Decl. ¶ 24. Two of his cellmates were then moved to a cell with healthy prisoners. Id. Matthew Saunders contracted the virus after being forced to clean a van, which transported a suspected COVID-19 patient, without proper protective equipment. Saunders Decl. ¶¶ 3-6.
Two Plaintiffs were moved from the Annex (where there is not a known outbreak) to the tanks in the main jail (where there is) as punishment for not doing trustee tasks would have put them at risk of infection. J. Cameron Decl. ¶¶ 8–10; Lee ¶¶ 9–17. Their experiences are not anomalies; signs posted in the Jail warn of such consequences for others. Bates Decl. ¶ 12; see M. Cameron Decl. ¶ 12.
Defendants are not properly monitoring for COVID-19. Jason Arsineau, who is a paramedic, watched officers incorrectly taking people’s temperatures by testing right after meals and by contaminating the thermometer without cleaning it. Arsineau Decl. ¶ 6; see Lee Decl. ¶ 5 (guards don’t look at thermometer reading). Michael Bates was in direct contact with a COVID-19 patient; his area was locked down but no one explained why or the risks. Bates Decl. ¶¶ 4–6.
Symptomatic people often are not tested or properly isolated. Inmates who work as kitchen trustees6 have been required to prepare and serve communal food,
6 Trustees are detained people who are tasked with responsibilities like food service, laundry, and cleaning. Saunders Decl. ¶ 6; Arsineau Decl. ¶ 5.
9

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1070 Page 16 of 57
despite exhibiting symptoms of COVID-19, risking spread to everyone who received food from them. Arsineau Decl. ¶ 5. When Arsineau had most of the symptoms of COVID-19 and told a deputy he was feeling sick and asked to be assigned a new trustee duty, the deputy responded, “motherfucker, you do what I tell you to do, and you are going to serve food.” Id. Arsineau continued to serve food to others while sick for four days until he could not get out of bed, leading a deputy to physically assault him. Id. Richard Briggs was also not tested despite having numerous symptoms of COVID-19; when he reported shortness of breath to a nurse the nurse said “if you are short of breath, how can you be here talking to me?” Briggs. Decl. ¶ 8. He never received treatment and spread his illness to bunkmates. Id. ¶¶ 8–9. David Kucharski had a similar experience. Kucharski Decl. ¶ 10. People are sniffling and coughing in the same cells as asymptomatic people, and the Jail has not tested them. Lee Decl. ¶ 20; M. Cameron Decl. ¶ 6.
This “[f]ailure to adequately test for infection results in dramatic undercounting of persons infected, and, in turn, makes it impossible to protect against an outbreak.” Lauring Decl. ¶ 33; see also id. ¶ 34.
C. Defendants Do Not Provide Adequate or Timely Health Care. In addition to the failures to diagnose and quarantine COVID-19 cases, medical care is not provided in a timely manner. One of Kucharski’s cellmates requested medical treatment for COVID-like symptoms on March 31. A nurse did
10

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1071 Page 17 of 57
not come until April 3. Kucharski Decl. ¶ 5. The day after that, a nurse gave everyone in his cell some Tamiflu, with instructions to take it if they had COVID-19 symptoms. Id. ¶ 8. The nurses had not been back as of April 10. Id.. A guard told Kucharski he could not help get a nurse to the cell. Id. ¶ 10. This experience is widespread. Saunders Decl. ¶¶ 8–10 (same). And in the Annex, people who take prescription drugs were dispensed a thirty-day supply and told that nurses and doctors would not be coming back. J. Cameron Decl. ¶ 16; Lee Decl. ¶ 4.
Nor is medical care sufficient when COVID-19 patients are identified. Saunders was quarantined for suspected COVID-19 with a temperature of 103. Saunders Dec. ¶ 3. He was placed in a single cell where no one checked on him for hours at a time. Id. ¶ 4. His food was left outside, and when he was too weak to retrieve it, it was simply taken away. Id. Four days later, he was returned to his cell with other incarcerated people. Id. ¶ 5. And in Arsineau’s cell, where several people were sick, nighttime temperatures dropped into the 50s, threatening already depleted immune systems. Arsineau Decl. ¶ 8; see Kucharski Decl. ¶ 20.
Based on these conditions, “it is apparent that the Jail is not providing adequate medical treatment to infected inmates. This is also worrisome because it will surely cause unnecessary risk of severe illness or death.” Lauring Decl. ¶ 32.
11

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1072 Page 18 of 57
D. Defendants Maintain Dangerous Conditions and Fail to Provide Basic Hygiene Supplies to the People Confined at the Jail.
Many people in the Jail do not have enough soap or, in the Annex, have to rely on a shared soap supply. Briggs Decl. ¶ 6; Saunders Decl. ¶ 11; Kucharski Decl. ¶ 15; J. Cameron Decl. ¶ 19; M. Cameron Decl. ¶ 4; Lee Decl. ¶ 19. The high lye content of the soap that is provided irritates the skin, forcing people “to choose between staying clean or suffering serious skin reactions.” Briggs Decl. ¶ 6. Several have not received soap in over a week. Kucharski Decl. ¶15; Saunders Decl. ¶11.
The commissary, which is the only source of most hygiene products like deodorant, non-abrasive soap, and shampoo, has been closed for at least three weeks, so there is no way to purchase basic supplies. M. Cameron Decl. ¶ 4; Arsineau Decl. ¶ 11 (unable to get any toothpaste for days as a result). No one in the Jail has access to hand sanitizer or tissues. Arsineau Decl. ¶ 13–14. Toilet paper supplies are inadequate and sometimes shared, Lee Decl. ¶ 19; J. Cameron Decl. ¶ 18, which risks spreading fecal matter germs to each person who touches the roll. There are no paper towels, and no sanitary way for people to dry their hands after they have been washed. J. Cameron Decl. ¶ 20.
Most people get a change of uniform and linens once a week. Kucharski Decl. ¶ 19. Some cells have a dirty communal bucket that is never replaced in which to wash their clothes and underwear during the week. Briggs Decl. ¶ 3. Recently, laundry service stopped entirely for over two weeks. Briggs Decl. ¶ 15.
12

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1073 Page 19 of 57
Although there is access to showers, they are filthy with scum, mold, clumps of hair, and insects. J. Cameron Decl. ¶ 17; Briggs Decl. ¶ 5; Arsineau Decl. ¶ 4. There is no adequate way to clean showers, toilets, and shared spaces. Kucharski Decl. ¶ 17. In some areas of the Jail, bottles of diluted DMQ (a floor cleaner) is available, but people are not given sufficient clean sponges or rags to clean and disinfect their cell. Id.; Arsineau Decl. ¶¶ 4, 9; M. Cameron ¶ 7.
Common surfaces and items that are touched frequently are not cleaned regularly. M. Cameron Decl. ¶ 8. There are no rags or cleaning supplies to clean shared surfaces. Briggs Decl. ¶ 4. The rails on the staircase are cleaned every other day and a shared water cooler is not sanitized between uses. M. Cameron Decl. ¶ 8.
Trustees tasked with cleaning receive one pair of gloves that they must reuse. M. Cameron Decl. ¶ 7. As noted above, Saunders was made to clean a van that transported an inmate with suspected COVID-19 with only a cloth face mask as protection. Saunders Decl. ¶ 6. Kitchen trustees must handle carts and plastic trays that ungloved jail workers touch. J. Cameron Decl. ¶ 4. And some food trustees have only been given a pair of gloves and no mask when distributing food. J. Cameron Decl. ¶¶ 4–7. Laundry trustees are afraid to work with some of the laundry, which comes in biohazard bags. Bates Decl. ¶¶ 11–12; M. Cameron Decl. ¶ 12. Several laundry trustees quit because they felt the job was unsafe. J. Cameron Decl. ¶ 25.
13

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1074 Page 20 of 57
Taken as a whole, these hygienic practices “deprive[] individuals of the most important CDC-recommended measures to protect themselves from infection,” Lauring Decl. ¶29, and “demonstrate[] the Jail’s failure to take the most fundamental precautions for preventing the spread of the disease[.]”Id. ¶ 30.
E. Defendants Fail to Provide Information About COVID-19. Jail guards studiously refuse to provide information about the outbreak to incarcerated people, leaving them to guess what is happening and rely on relatives or news broadcasts to learn about the outbreak. Bates Decl. ¶¶ 5–6, 8, 10; M. Cameron Decl. ¶ 4; Briggs Decl. ¶ 7; M. Cameron Decl. ¶¶ 4–5. And there has been a lack of signage about coronavirus. J. Cameron Decl. ¶ 10; Bates Decl. ¶ 10. However, the guards are aware of its spread and use it as a threat to terrorize inmates. F. People Are Punished by Being Exposed to COVID-19. The Jail has a policy of punishing incarcerated people, including the medically vulnerable, for health and safety advocacy and for other infractions by exposing them to a heightened risk of COVID-19. It is well known in the Jail that the COVID19 outbreak is in the main building, and Jail officials routinely transfer or threaten to transfer people in the Annex to the main building as a punishment for perceived or actual infractions. As noted earlier, two named Plaintiffs were shipped off to the tanks and placed in a crowded cell directly adjoining a quarantine cell after declining to do trustee tasks that they considered a threat to their health. J. Cameron Decl. ¶¶
14

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1075 Page 21 of 57
8–9; Lee Decl. ¶¶ 9–17. Briggs was threatened with being moved to the tank for requesting a grievance to protest the lack of medical care he was receiving while suffering COVID-like symptoms. Briggs Decl. ¶ 8. And the laundry room in the Annex has a sign telling people they will be relocated to the main building if they refuse to work processing dirty linens from the contaminated main building. Bates Decl. ¶ 12. These threats are widespread. See M. Cameron ¶ 12; J. Cameron ¶ 10.
STANDARD OF REVIEW In ruling on a motion to dismiss, a court “construe[s] the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 538 (6th Cir. 2012) (citation omitted). A motion to dismiss must be denied if plaintiffs allege “facts that ‘state a claim to relief that is plausible on its face’ and that, if accepted as true, are sufficient to ‘raise a right to relief above the speculative level.’” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). The legal requirements for the Court to grant a temporary restraining order and preliminary injunction are different. To determine whether to grant a preliminary injunction or temporary restraining order, a district court must consider: (i) whether the movant has a strong likelihood of success on the merits; (ii) whether the movant would suffer irreparable injury without the injunction; (iii) whether the balance of equities weighs in the movant’s favor; and (iv) whether an injunction is in the public
15

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1076 Page 22 of 57
interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008). Where, as here, plaintiffs demonstrate “irreparable harm which decidedly outweighs any potential harm to the defendant,” the “degree of likelihood of success required” is less, and a plaintiff need only show “serious questions going to the merits.” In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985) (citation omitted).
ARGUMENT III. THIS COURT HAS JURISDICTION TO REMOVE MEDICALLY
VULNERABLE SUBCLASS MEMBERS FROM THE JAIL. For the Medically Vulnerable Subclass, every day in the Jail poses an grave— and unmitigable—risk of contracting COVID-19 and suffering illness, organ damage, or death. Because social distancing is impossible in the Jail, removal from the facility is the only cure for the constitutional violations to which subclass members are being subjected. This Court has authority to order their removal from the Jail both under habeas jurisdiction and under 42 U.S.C. § 1983. C. This Court Has Jurisdiction to Entertain a Federal Habeas
Petition Alleging Eighth and Fourteenth Amendment Violations. 1. Habeas Is Available When the Only Viable Remedy to a
Constitutional Violation Is Removal from Detention. It has long been true that federal “habeas lies in ‘exceptional circumstances’— as when the petitioner’s claims suggest that he has been victim of cruel and unusual punishment.” Armstrong v. Cardwell, 457 F.2d 34, 36 (6th Cir. 1972) (emphasis
16

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1077 Page 23 of 57
added). And it remains the law today that “an attack upon the execution of a
sentence,” which is to say “the manner in which the sentence [i]s being executed”—
as opposed to an attack on the validity of the sentence itself—“is properly cognizable
in a 28 U.S.C. § 2241(a) habeas petition.”7 United States v. Jalili, 925 F.2d 889,
893–94 (6th Cir. 1991); see United States v. Peterman, 249 F.3d 458, 461 (6th Cir.
2001) (same). Indeed, the Sixth Circuit has specifically held that courts have
jurisdiction to consider some habeas petitions that allege Eighth Amendment claims.
See Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011) (recognizing that habeas
was the proper mechanism to bring an Eighth Amendment challenge that would
render petitioner’s death sentence “effectively invalid”). Similarly, an individual in
pretrial detention who challenges their confinement does so under 28 U.S.C. § 2241,
7 Because Petitioners do not challenge the validity of their underlying conviction or sentence but instead seek relief on the grounds that their confinement has become unconstitutional due to the Jail’s inability to protect them from the risk of a fatal pandemic, § 2241 is the proper vehicle for their habeas petition. The Supreme Court has already held that habeas petitions filed by state prisoners are sometimes properly categorized as § 2241 petitions. See Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 498 (1973) (holding that § 2241 permits state prisoners who are “in custody under one sentence to attack a sentence which they had not yet begun to serve”). As the Tenth Circuit has noted, a “challenge to the validity of [petitioner’s] conviction and sentence” should “properly be brought under § 2254” but “an attack on the execution of his sentence” should be “pursuant to § 2241.” Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000) (holding that a state prisoner’s challenge to his interstate prison transfers arose under § 2241). In any event, even if Petitioners’ claim is characterized as a claim under § 2254, this Court would still have jurisdiction for the reasons explained in this section.
17

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1078 Page 24 of 57
regardless of the legal basis for their claim. See Christian v. Wellington, 739 F.3d 294, 297 (6th Cir. 2014).
That is so because the “heart of habeas corpus” is a claim “challenging the fact or duration of [a petitioner’s] physical confinement.” Preiser v. Rodriguez, 411 U.S. 475, 498 (1973). Thus, when a petitioner alleges an Eighth or Fourteenth Amendment claim for which the only adequate remedy is immediate removal from detention, habeas jurisdiction lies. Plaintiffs in the Medically Vulnerable Subclass do exactly that: they challenge the “very fact” of their detention during the pandemic because Defendants cannot make the Jail safe enough to avoid exposing them to an unreasonable risk to their lives and bodily integrity. Thus, immediate release is the appropriate remedy, and habeas is the appropriate vehicle.
Federal courts in this district that have considered this issue in the context of COVID-19 agree. In Malam v. Adducci, __ F. Supp. 3d __, 2020 WL 1672662 (E.D. Mich. Apr. 5, 2020), Judge Levy held that habeas jurisdiction is proper and released medically vulnerable ICE detainees held in a Michigan jail. As Malam explained, “Supreme Court and Sixth Circuit precedent support the conclusion that where a petitioner claims no set of [achievable] conditions would be sufficient to protect her constitutional rights, her claim should be construed as challenging the fact, not conditions, of her confinement and is therefore cognizable in habeas.” Id. at *3; see
18

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1079 Page 25 of 57
Fofana v. Albence, __ F. Supp. 3d __, 2020 WL 1873307 (E.D. Mich. April 15, 2020) (Drain, J.) (granting habeas to medically vulnerable detainees).
Another district court in the Sixth Circuit reached the same conclusion just last week. See Wilson v. Williams, __ F. Supp. 3d __, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020). Wilson held that although the “general r[ule]” is that conditions of confinement claims sound in § 1983, “claims concerning COVID-19 are not so easily classified” because “the only truly effective remedy to stop the spread is to separate individuals—a measure that in our nation’s densely populated [carceral facilities] is typically impossible without the release of a portion of the population.” Id. at *5. Such claims sound in habeas because they “ultimately seek to challenge the fact or duration of confinement.” Id. A cavalcade of other federal courts around the country have agreed, granting habeas relief on the same basis.8
Defendants nonetheless argue that there is a categorical prohibition on the use of federal habeas for any claim that could be construed as arising from the conditions
8 See, e.g., Rafael L.O. v. Tsoukaris, No. 20-cv-3481, 2020 WL 1808843 (D.N.J. Apr. 9, 2020); Francisco Hernandez v. Wolf, No. 20-cv-617 (C.D. Cal. Apr. 1, 2020) (TRO Ex. I, pp. 20–34); Thakker v. Doll, __ F. Supp. 3d __, No. 20-cv-480, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020); Avendano Hernandez v. Decker, 2020 WL 1547459 (S.D.N.Y. Mar. 31, 2020); Fraihat v. Wolf, No. 20-cv-590 (C.D. Cal. Mar. 31, 2020) (Appendix A); Coronel v. Decker, __ F. Supp. 3d __, No. 20-cv-2472, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020); Basank v. Decker, __ F. Supp. 3d __, No. 20-cv-2518, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020); Calderon Jimenez v. Wolf, No. 18-cv-10225 (D. Mass. Mar. 26, 2020) (Appendix A); Jovel v. Decker, No. 12-cv-308, 2020 WL 1467397 (S.D.N.Y. Mar. 26, 2020).
19

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1080 Page 26 of 57
of anyone’s confinement, relying on a Seventh Circuit case, an unpublished Sixth Circuit case, and unpublished district court opinions. Def. MTD at 19–23. As a threshold matter, none of Defendants’ cases are binding on this court. In any event, Defendants’ cases are distinguishable. Unlike the present situation, most involve denial of medical treatment for which the proper remedy is treatment rather than, as here, a complete inability to protect the petitioners from an imminent but foreseeable and potentially fatal threat, rendering release the only adequate remedy. See Glaus v. Anderson, 408 F.3d 382, 384 (7th Cir. 2005) (resumption of medical treatment was one remedy available to petitioner);9 In re Owens, 525 F. App’x 287, 290 (6th Cir. 2013) (alleging overcrowding, poor medical care, and inadequate nutrition); Burton v. McGlasson, No. 14-CV-10693, 2014 WL 700503 (E.D. Mich. Feb. 24, 2014) (denial of “medication for an unspecified medical condition”); Martin v. Zych, No. 09-10423, 2009 WL 398166 (E.D. Mich. Feb. 17, 2009) (“[P]etitioner claims that he is being denied medical treatment.”); Davis v. Zych, No. 9-11459, 2009 WL 1212489 (E.D. Mich. May 4, 2009) (petitioner “request[ed] a change in his custody level so that he can obtain proper medical care”). Defendants rely on one out-ofcircuit case that involves COVID-19, Peterson v. Diaz, No. 19-01480, 2020 WL
9 The court in Glaus was also bound by prior in-circuit precedent, but recognized that the “the Supreme Court has left the door open a crack for habeas corpus claims challenging prison conditions.” Id. at 387.
20

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1081 Page 27 of 57
1640008 (E.D. Cal. Apr. 2, 2020). But the pro se petitioner there raised the COVID19 issue through a motion in the midst of an unrelated habeas proceeding, so the court treated the motion as a request for bail and denied it on the grounds that the underlying petition lacked merit. Id. at *2. More importantly, unlike in this case, the petitioner had not shown that social distancing was impossible. See id.
Finally, and bizarrely, Defendants also rely heavily upon Chambers v. Bouchard, No. 20-cv-10949 (E.D. Mich. Apr. 20, 2020), a case involving a member of the putative class here. Yet Chambers actually states that habeas relief is available (and the preferred remedy)10 in cases such as this. Slip op. at 9. Chambers in no way supports Defendants’ habeas argument.
As Malam held, “[r]elease from custody represents the only adequate remedy in this case, and it is within this Court’s broad equitable power to grant it.” Malam, 2020 WL 1672662, at *13. The Medically Vulnerable Subclass faces the same situation as the Malam petitioners. Defendants have “conceded that social distancing between prisoners of at least six feet would be impossible.” Id. at *4.11 In other
10 Chambers also concluded that it lacked § 1983 jurisdiction. For the reasons described below, see infra, Section I.B, that analysis of the § 1983 issue is incorrect. In any event, nothing in Chambers supports Defendants’ habeas arguments. 11 See Mot. to Reconsider, ECF No. 17 at 23 (describing social distancing of six feet as “impractical”); Aileen Wingblad, Lawsuit Claims Oakland County Jail Conditions Put Inmates at Risk for COVID-19, Demands ‘Vulnerable’ Be Released, The Oakland Press (Apr. 17, 2020) (“As for social distancing, [Undersheriff Mike]
21

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1082 Page 28 of 57
words, they have conceded that there is no way to accomplish what the CDC describes as the “cornerstone of reducing respiratory diseases such as COVID-19” in the Oakland County Jail in the middle of an unprecedented pandemic. Compl. Ex. 6 at 4. As such, and as Plaintiffs’ medical experts have concluded, Lauring Decl. ¶¶ 36–37; Stern Decl. ¶¶ 12–13, the only way to protect the subclass from the imminent threat of death or life-threatening illness is to order them removed from the jail. See Malam, 2020 WL 1672662, at *4 (“[T]he public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety” (citing declaration by infectious disease epidemiologist Joseph Amon)); see also Thakker, 2020 WL 1671563, at *9. That is what this Court can, and should, do.
As an alternative to complete release from Defendants’ custody, this Court could transfer Petitioners to home confinement. As Wilson explained, federal courts’ habeas authority includes the power to “enlarge” custody by ordering that the physical location of confinement be altered. Wilson, 2020 WL 1940882, at *4.
2. Habeas Can Be Granted in a Way That Protects the Public. Given the severe and unavoidable risks to the Medically Vulnerable Subclass, this Court can and should act quickly to implement a system for ordering the release of subclass members. In deciding whether to grant this emergency release, the Court
McCabe said ‘that's impossible at any jail. You just can’t give six feet between everybody.’”).
22

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1083 Page 29 of 57
follows the well-known balancing test that governs preliminary relief, which includes weighing “the public interest.” Winter, 555 U.S. at 20; Malam, 2020 WL 1672662, at **6–7. Thus, this Court can weigh the public interest when granting temporary release to the members of the Medically Vulnerable Subclass. For most members of the subclass, such a balance will inevitably lead to the conclusion that they should be released given the risks to their health of remaining incarcerated and given that every release also reduces the risk to the public, of the Jail becoming a transmission vector and a drain on public health resources. But if the Court concludes that it would be a significant risk to public safety to grant temporary release to certain particular members of the subclass, and that such risk outweighs the other factors, the Court could deny emergency relief to such individuals.
The Court therefore has options to deciding how to exercise its discretion in ordering preliminary relief. Plaintiffs submit that the most sensible approach would be to immediately order the release of members of the subclass who fall into the following categories: (1) subclass members being held on bail who are charged with an offense that does not have as an element the use or threatened use of violence or unwanted sexual touching of another person; (2) subclass members serving sentences for offenses that do not have as an element the use or threatened use of violence or unwanted sexual touching of another person; (3) subclass members whose sentences, regardless of the charged offense, expire by July 1, a period
23

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1084 Page 30 of 57
throughout which the COVID-19 epidemic is likely to remain a major risk in the Jail and the community. For each of these categories of the subclass, it makes sense to determine as a categorical matter that the public interest in reducing the Jail population exceeds any danger in releasing the individuals. And by quickly taking this step, the remainder of the class—and Defendants’ staff for that matter—would be made better off by making the Jail a somewhat safer place. Remaining members of the subclass could be promptly evaluated on a case-by-case basis by the Court or by an appointed magistrate or special master. That evaluation could weigh any risk to the public of releasing the individual against the risk to public health of failing to further reduce the jail population.
Several such systems already exist. For example, a federal court in the District of Massachusetts has released (and continues to release) numerous immigration detainees on non-monetary bond conditions while their class action habeas petition is pending. See Savino v. Souza, __ F. Supp. 3d __, No. 20-10617-WGY, 2020 WL 1703844, at *8–9 (Apr. 8, 2020) (explaining its decision to grant bail pending habeas). In that case, named petitioners and class members include all immigration detainees held at two facilities in Massachusetts. Id. at *1.12 Finding “exceptional circumstances” in “this nightmarish pandemic,” the court opted to “diligently
12 Unlike in this case, the Savino class is not limited to detainees who are medically vulnerable. Savino, 2020 WL 1703844, at *1.
24

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1085 Page 31 of 57
entertain[] bail applications while the petitions for habeas corpus are pending.” Id. at *9. The district court requested and rapidly considered an initial list of 50 detainees for bail, and has since considered class members’ bail applications in groups of ten. Order, Savino v. Souza, No. 20-10617-WGY, Doc. No. 44, at 3 (Apr. 4, 2020); see id., Doc. No. 45 at 1-3 (listing class members in groups of ten for bail consideration) (Appendix B). Similar solutions could be implemented here.
3. Petitioners are Not Required to Exhaust their Claims a. State-Level Habeas Relief Is Unavailable to Plaintiffs.
Federal habeas corpus exhaustion requirements are waived when “there is an absence of available State corrective process.” 28 U.S.C. § 2254(b)(1)(B)(i); see Turner v. Bagley, 401 F.3d 718, 724 (6th Cir. 2005) (exhaustion excused where “there is an absence of state corrective process, or circumstances exist that render such process ineffective to protect the petitioner’s rights” or where “further action in state court ‘would be an exercise in futility’” (citation omitted)). Defendants’ exhaustion argument assumes that such a remedy is in fact available to Plaintiffs.
Defendants are wrong. Federal habeas statutes allow a court to review whether a habeas petitioner “is in custody in violation of the Constitution.” 28 U.S.C. §§ 2241, 2254. In sharp contrast, the plain language of Michigan’s state habeas provision permits a state court only “to inquire into the cause of detention.” Mich. Ct. R. 3.303(a) (emphasis added); see also Mich. Comp. Laws § 600.4307
25

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1086 Page 32 of 57
(authorizing habeas to “inquire into the cause of detention”). Caselaw is in accord. See Phillips v. Warden, 396 N.W.2d 482, 486 (Mich. Ct. App. 1986) (stating that under Michigan’s habeas provision “a distinction must be made between a challenge to the fact or duration of confinement . . . and an attack on the conditions of confinement. Habeas corpus is proper in the former instance; in the latter it is not.” (citation omitted)).
In fact, as interpreted, the writ in Michigan is even narrower than the text, and may only be used to challenge “radical defects rendering a judgment or proceeding absolutely void.” Triplett v. Deputy Warden, 371 N.W.2d 862, 780 (Mich. Ct. App. 1985); Mich. Comp. Laws § 600.4310(3). And “MCL 600.4310(3) prohibits habeas corpus relief to ‘[p]ersons convicted, or in execution, upon legal process, civil or criminal” except in one narrow instance, “‘where the convicting court was without jurisdiction to try the defendant for the crime in question.’” Moses v. Dep’t of Corrs., 736 N.W.2d 269, 273 (Mich. Ct. App. 2007).
Similarly, state-level relief is also unavailable under Mich. Ct. R. 6.501 et seq., which is available only to prisoners who seek to challenge the validity of their underlying conviction or sentence. See Mich. Ct. R. 6.501(A); Washington v. Elo, No. 99-CV-71187, 2000 WL 356353, at *4 (E.D. Mich. Feb. 29, 2000) (“a motion for relief from judgment pursuant to M.C.R. 6.500, et seq. is the proper and exclusive means to challenge convictions in Michigan courts” (citation omitted) (emphasis
26

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1087 Page 33 of 57
added)); People v. McSwain, 676 N.W.2d 236, 248 (Mich. Ct. App. 2003) (“It is well settled that [s]ubchapter 6.500 of the Michigan Court Rules establishes the procedures for pursuing postappeal relief from a criminal conviction.”). Plaintiffs are not challenging their underlying conviction and sentence—rather, they challenge the execution of their punishment under constitutionally impermissible conditions. This they cannot do via state collateral review.
In sum, Plaintiffs seek removal from the Jail for a subclass of medically vulnerable people on the basis that are no detention conditions at the Jail that can adequately or constitutionally protect them from the fatal risk of COVID-19. Pursuing a state-level habeas remedy, under the narrow confines of Michigan’s habeas and postconviction provisions, is thus squarely unavailable to Plaintiffs.
Defendants’ reliance on Irick v. Bell, 565 F.3d 315, 323 (6th Cir. 2009), to support their exhaustion argument is misplaced. Irick is inapposite for two critical reasons: (1) the petitioner in Irick was challenging the validity of his conviction through habeas, based on alleged constitutional violations in his underlying state criminal proceeding; and (2) the petitioner presented novel claims in his federal habeas petition that were not previously presented to the state court, but which could have been. Id. at 323–24. Thus, Irick is inapplicable here.
Defendants also rely on Money v. Pritzker, __ F. Supp. 3d __, 2020 WL 1820660 (Apr. 10, 2020). But there too the Illinois-based petitioners had an available
27

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1088 Page 34 of 57
state habeas remedy that they could have pursued. The Illinois statute governing habeas corpus is expansive: it authorizes a writ of habeas “[w]here, though the original imprisonment was lawful, nevertheless, by some act, omission or event which has subsequently taken place, the party has become entitled to be discharged.” 735 Ill. Comp. Stat. Ann. 5/10-124. The Money plaintiffs therefore had the ability to pursue state-level habeas relief on the theory they were unlawfully detained due to an “event which has subsequently taken place.” Here, by contrast, the “absence of state corrective process” excuses Plaintiffs from resorting to state habeas because “further action in state court ‘would be an exercise in futility.’” Bagley, 401 F.3d at 724.
b. Even If State Remedies Were Available, the Exhaustion Requirement Should Be Waived in Light of the Unique Threat Posed by Covid-19.
Even if the Court somehow finds that Plaintiffs could have attempted the futile act of exhausting state-level remedies, Defendants are mistaken in concluding that this requires the dismissal of Plaintiffs’ federal habeas claim. “A [plaintiff’s] failure to exhaust his remedies in state court . . . does not divest a federal court of jurisdiction over the petition.” Puertas v. Overton, 272 F. Supp. 2d 621, 626 (E.D. Mich. 2003). Rather, a court should assess whether “unusual or exceptional circumstances” exist such that “‘the interests of comity and federalism will be better served by addressing the merits.’” Id. (quoting Granberry v. Greer, 481 U.S. 129, 134 (1987), superseded
28

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1089 Page 35 of 57
by statute on other grounds as stated in Rockwell v. Yukins, 217 F.3d 421, 423–24 (6th Cir. 2000)).
Significantly, this Court has applied this exception when pursuit of state court procedure would amount to a death sentence. Puertas waived the exhaustion requirement for a 76-year-old prisoner with coronary disease and bladder cancer who had recently gone into remission, releasing him on bond pending a decision on his petition for a writ of habeas corpus. Id. at 628. In doing so, the court found that the petitioner’s “age, ill health, and dire need for continued medical treatment” warranted special consideration. Id. Considering the situation, “the interests of comity and federalism” were better served by addressing the merits of the petition rather than allowing the petitioner to risk death in prison while awaiting adjudication in state court. Id. at 629 (quoting Granberry, 481 U.S. at 131).
So too here. Any delay in providing relief could be the difference between life and death for the Medically Vulnerable Subclass. The outbreak of COVID-19 at Michigan’s Lakeland Correctional Facility is illustrative. On April 1, 2020, it had 14 confirmed COVID-19 cases;13 by April 25, 2020, there are over 600,14 and the
13 Jim Measel, MDOC Reports Lakeland COVID-19 Cases Up to 14, WTVB (Apr. 1, 2020), https://wtvbam.com/news/articles/2020/apr/01/mdoc-reports-lakelandcovid-19-cases-increase-14/1001801/ 14 Angie Jackon, Kristi Tanner, Coronavirus Cases at Michigan Prison Surge as Widespread Testing Begins, Detroit Free Press (Apr. 25, 2020),
29

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1090 Page 36 of 57
facility leads the state’s COVID-19 death count. Defendants have admitted that they cannot provide the necessary six feet of social distancing in the Jail that experts say is necessary to prevent a fatal risk of exposure.
Given this reality and the rapid pace at which COVID-19 spreads, it is “in the interests of comity and federalism,” Granberry, 481 U.S. at 131, and well within this Court’s power, to waive any applicable exhaustion requirements for the Medically Vulnerable Subclass members before it is too late to protect them.
D. Alternatively, Removals from Jail Are Authorized Under § 1983. Even if this Court lacked habeas jurisdiction, it could still grant immediate relief to the Medically Vulnerable Subclass pursuant to 42 U.S.C. § 1983. “Prisoners retain the essence of human dignity . . . [that] animates the Eighth Amendment.” See Brown v. Plata, 563 U.S. 493, 510 (2011). By incarcerating people, “society takes from prisoners the means to provide for their own needs.” Id. Thus, “[a] prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.” Id. And “[i]f the government fails to fulfill this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment violation.” Id. (emphasis added).
https://www.freep.com/story/news/local/michigan/2020/04/25/coronavirus-casesmichigan-prison-surge-widespread-testing-prisoners/3002811001/.
30

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1091 Page 37 of 57
The Prison Litigation Reform Act (“PLRA”) prescribes a number of rules and procedures for cases involving some § 1983 claims involving prison conditions. See Plata, 563 U.S. at 511–12; 18 U.S.C. § 3626. Defendants point to the provision that a court may enter a “prisoner release order” only after it first enters an order for less intrusive relief that has “failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order” and after the prison has had a reasonable time to comply under the circumstances. 18 U.S.C. § 3626(a)(3)(A). In turn, a “prisoner release order” can be entered only by a three-judge court, and only upon finding that overcrowding is the primary cause of the violation. 18 U.S.C. § 3626(a)(3)(B)–(E); Plata, 563 U.S. at 512. A “prisoner release order” is defined as an order “that has the purpose or effect of reducing or limiting the prison population”—in other words, an order that addresses systemic overcrowding. 18 U.S.C. § 3626(g)(4). For example, the order at issue in Plata was a “prisoner release order” because it sought to impose a population cap on the overcrowded California state prison system. Plata, 563 U.S. at 511.
Here, the PLRA does not present an obstacle to this Court ordering Defendants to remove or transfer members of the Medically Vulnerable Subclass out of the Jail, for two reasons. First, the PLRA provides the procedures for judicial response to Eighth Amendment violations that result from systemic overcrowding; it does not limit a federal court’s ability to respond to individualized threats to the
31

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1092 Page 38 of 57
lives and health of incarcerated people. As explained above, the PLRA requires the convening of a three-judge panel to issue “prisoner release orders,” but makes clear that the only basis for a three-judge “prisoner release order” is a finding of overcrowding that cannot be ameliorated adequately through other means. Thus, a three-judge panel can order releases from jail only on systemic overcrowding grounds. See 18 U.S.C. § 3626(a)(3)(E) (prisoner release order be entered “only if the court finds by clear and convincing evidence that . . . crowding is the primary cause of the violation of a Federal right”); see Plata, 563 U.S. at 502 (finding that “overcrowding [wa]s the ‘primary cause of the violation of a Federal right’”).
The PLRA does not, by contrast, constrain a federal district court’s authority to order the release of individuals who face a potentially fatal hazard behind bars that is not the result of systemic overcrowding. If the PLRA were construed to prohibit a federal district court from ordering anyone who raises any Eighth Amendment claim to be removed from a prison, it would risk leaving incarcerated people who face imminent risks that derive from causes other than systemic overcrowding without any remedy whatsoever to prevent a threat to the lives.15 For example, if people in the Jail were “in the direct path a hurricane and . . . the facility
15 To be clear, Plaintiffs’ position is that what they seek here is not a “prisoner release order” within the meaning of the PLRA. As such, Defendants’ arguments about whether there is a pre-existing order that would permit a three-judge panel to issue a prisoner release order, Def. Br. at 15–16, are a red herring.
32

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1093 Page 39 of 57
was unlikely to withstand the storm,” the Defendants’ interpretation of the PLRA would prohibit this court—or any federal court—from acting immediately to address the risk. L.O. v. Tsoukaris, No. 20-3481, 2020 WL 1808843, at *7 (D.N.J. Apr. 9, 2020).16 As another court has put the point, “[a]ccepting [such an] argument would mean that the only way a district court can order the release of a prisoner is for a violation of his constitutional rights where overcrowding caused the violation, but not if any other reason caused the violation.” Reaves v. Dep’t of Corr., 404 F. Supp. 3d 520, 523 (D. Mass. 2019). Congress did not intend such a result; rather, “the legislative history suggests that the sponsors of the PLRA were primarily ‘concerned with courts setting ‘population caps’ and ordering the release of inmates as a sanction for prison administrators’ failure to comply with the terms of consent decrees designed to eliminate overcrowding.’” Id. (quoting Gilmore v. California, 220 F.3d 987, 998 n.12 (9th Cir. 2000)); see Margo Schlanger, Anti-Incarcerative Remedies for Illegal Conditions of Confinement, 6 U. Miami Race & Soc. Just. L. Rev. 1, 27– 28 (2016) (collecting congressional testimony and reports).
16 Tsouarkaris involved the court’s habeas jurisdiction. Of course, if this Court holds that relief is available via habeas, it need not reach the PLRA issue. But if this Court concludes that habeas relief is not available, that leaves § 1983 as the only remaining avenue for relief. And if the Court were to accept Defendants’ position with respect to § 1983 as well, it would mean that no avenue would exist to remedy the hurricane hypothetical—a situation that is analogous to the harm cause by a pandemic sweeping towards and through the Jail.
33

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1094 Page 40 of 57
To interpret the PLRA in the manner proposed by Defendants risks rendering the PLRA unconstitutional because it would leave prisoners who face imminent lethal threats without a remedy in contravention of Plata’s core insight that “courts have a responsibility to remedy. . . Eighth Amendment violation[s].” Plata, 563 U.S. at 511; see Reaves, 404 F. Supp. 3d at 523. A “court is obligated ‘to avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question.’” In re Dow Corning Corp., 199 B.R. 896, 899 (E.D. Mich. 1996 (quoting Gomez v. United States, 490 U.S. 858, 864 (1989))); see Sasser v. Hobbs, 735 F.3d 833, 844 (8th Cir. 2013) (applying constitutional avoidance canon to avoid an Eighth Amendment issue); United States v. $11,500 in United States Currency, 869 F.3d 1062, 1071 (9th Cir. 2017) (same). In short, under Defendants’ interpretation of the PLRA, detainees in the gravest and most immediate danger can be left with no practical recourse to federal court. That cannot be, and is not, the law.
Defendants’ principal PLRA case, the unpublished decision in Money v. Pritzker, is admittedly in tension with Plaintiffs’ position on this issue. But it is wrongly decided. It errs by treating a request for short-term releases due to the inability to control an infectious disease as tantamount to the orders that the PLRA is intended to govern, i.e., orders whose purpose is to systemically reduce or cap an overcrowded prison population. And it fails to even mention the potential
34

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1095 Page 41 of 57
unconstitutionality of interpreting the PLRA in the manner urged by Defendants, and thus does not apply the constitutional avoidance canon.
Second, even if this Court concludes that the PLRA prohibits an order releasing members of the Medically Vulnerable Subclass from the Sheriff’s legal custody, the PLRA presents no barrier to this Court ordering that members of subclass be transferred to an alternate form of custody, including home confinement, for the duration of the COVID-19 crisis.17 Multiple federal courts have held that an order that prisoners be moved into alternative custody is not a “prisoner release order” within the meaning of the PLRA and, therefore, may be issued by a singlejudge court. See Plata v. Brown, __ F. Supp. 3d __, 2013 WL 12436093, at *8 (N.D. Cal. June 24, 2013) (holding that transferring a group of inmates at high risk of contracting a fatal disease out of a prison was not a “prisoner release order” under the PLRA); Reaves, 404 F. Supp. 3d at 523 (similar).
It is also clear, under the PLRA, that home confinement is not “release.” Federal law defines “home confinement” as a form of (prerelease) custody. 18 U.S.C. § 3624(g)(2)(A). Caselaw is in accord. See Jackson v. Johnson, 475 F.3d 261, 265-66 (5th Cir. 2007) (holding that a person confined in a halfway house is still a
17 Thus, the court’s suggestion to the contrary in Chambers was mistaken, because if this Court were to transfer Plaintiffs to home confinement, it would not result in shortening the duration or altering the validity of their sentences. Rather, the Court would merely be altering the physical location in which those sentences are served.
35

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1096 Page 42 of 57
“prisoner” under the PLRA ); Witzke v. Femal, 376 F.3d 744, 752 (7th Cir. 2004) (similar). So is Michigan law, which allows for “house arrest” as a form of sentence that is on par with jail time as a criminal sanction available for individuals who do not receive a prison sentence. Mich. Comp. Laws § 769.31(b)(ii), (viii), (xiv); see People v. Stauffer, 640 N.W.2d 869, 870 n.7 (Mich. 2002).18
In sum, the PLRA should not be construed to prevent a federal court ordering that individuals be released from jail in response to an imminent and fatal threat that is not the result of systemic overcrowding. But even if this Court were to disagree, it still has the power under § 1983 to transfer the Medically Vulnerable Subclass into home confinement without running afoul of the PLRA. If this Court concludes that it cannot order releases or enlargement under its habeas jurisdiction, see Section I.A, supra, then it can and should instead act pursuant to § 1983. IV. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF
THEIR EIGHTH AND FOURTEENTH AMENDMENT CLAIMS. A. Plaintiffs Have Made a Strong Showing of Defendants’ Deliberate
Indifference to the Grave Risk of Harm Posed by COVID-19. Corrections officials have a constitutional obligation to protect incarcerated people from a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 828 (1994). Under the Eighth Amendment, prison officials “must provide humane
18 See also https://www.oakgov.com/sheriff/Corrections-Courts/Satellites-andCourt-Services/Pages/Work-Release-Tether.aspx (making clear that a sentence to work release is a sentence served under the sheriff’s extensive supervision).
36

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1097 Page 43 of 57
conditions of confinement; . . . must ensure that inmates receive adequate . . . medical care, and must take reasonable measures to guarantee the safety of the inmates[.]” Id. at 832 (internal quotation marks omitted). The obligation requires corrections officials to address prisoners’ serious medical needs—including needs far less dire than those at stake here. See Plata, 563 U.S. at 531–32; Helling v. McKinney, 509 U.S. 25, 28, 35 (1993); Estelle v . Gamble, 429 U.S. 97, 104 (1976); Flanory v. Bonn, 604 F.3d 249, 255 (6th Cir. 2010) (extended failure to provide toothpaste); Talal v. White, 403 F.3d 423, 427 (6th Cir. 2005) (exposure to tobacco smoke). This obligation requires corrections officials to protect incarcerated people from the risk of “infectious maladies” and “serious contagious diseases” rather than waiting until someone tests positive and providing treatment. McKinney, 509 U.S. at 33–34 (“It would be odd to deny an injunction to inmates who plainly proved an unsafe, lifethreatening condition in their prison on the ground that nothing yet had happened to them.”); see Farmer, 511 U.S. at 833 (“[H]aving stripped [prisoners] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.”).
Eighth Amendment claims require a showing of “deliberate indifference” to a substantial risk of serious harm. Farmer, 511 U.S. at 828. “Deliberate indifference has two components to it: objective and subjective.” Villegas v. Metro. Govt. of
37

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1098 Page 44 of 57
Nashville, 709 F.3d 563, 568 (6th Cir. 2013).19 It may be “infer[red] from circumstantial evidence,” including “the very fact that the risk was obvious.” Farmer, 511 U.S. at 842. In the midst of the COVID-19 pandemic, the deliberate indifference test has been easily satisfied in this District and elsewhere that medically vulnerable inmates are detained in unsafe conditions. See, e.g., Wilson, 2020 WL 1940882, at *8; Fofana, 2020 WL 1873307, at *8; Malam, 2020 WL 1672662, at *12; Thakker, 2020 WL 1671563, at *8 n.15.
As explained below, the record in this case demonstrates that Defendants are deliberately indifferent to the serious risks posed by COVID-19, requiring immediate action by this Court. With respect to conditions for the Medically Vulnerable Subclass, there is no dispute that remaining in the Jail places them at a risk of death or serious harm that is both objectively intolerable and obvious to Defendants. For that subclass, as in Wilson, Fofana, Malam, Thakker, and other
19 Defendants’ assertion that “[d]eliberate indifference claims are the same under the Eighth and Fourteenth Amendments,” Def. Br. at 29, relies entirely on outdated case law preceding Kingsley v. Hendrickson, 576 U.S. 389 (2015). Since Kingsley, the Sixth Circuit has recognized that pre-trial detainees, whose terms of confinement are governed by the Fourteenth Amendment, may no longer need to demonstrate the subjective component of the deliberate indifference standard in order to show that their conditions of confinement are unconstitutional. See Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th Cir. 2018); see Pl. TRO Br. at 15 & n.6. In any event, Plaintiffs meet both standards as explained herein.
38

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1099 Page 45 of 57
cases ordering release from detention, preliminary injunctive relief immediately removing them from the Jail environment is urgently needed.
As for the highly generalized evidence submitted by Defendants regarding purported efforts to marginally improve some conditions within the Jail, the mutually corroborating declarations of eight individuals overwhelmingly refute Defendants’ assertions and conclusively demonstrate that the Jail is not doing what it claims. See Facts, supra. But to the extent there are genuine factual disputes about Defendants’ conduct, which go only to Counts I and II and not the urgent need to remove the Medically Vulnerable Subclass pursuant to Counts III and IV, they should be resolved at an evidentiary hearing on Plaintiffs’ motion for a preliminary injunction, not by dissolving the TRO as Defendants seem to request.
1. COVID-19 Presents an Objectively Unreasonable Risk. As Plaintiffs have already established, the risk of infection from COVID-19 is plainly a serious one, and Plaintiffs are “incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834. Pl. TRO Br. at 15–17; see Facts, Sections I–II, supra. The only way to alleviate the risk is to reduce the jail population. Stern Decl. ¶¶ 10–13; Lauring Decl. ¶¶ 36–37. Defendants do not contend that the Jail can be made safe without further population reductions, and submit no evidence to the contrary. Thus, they have essentially conceded that the conditions in the Jail present an objective risk of grave
39

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1100 Page 46 of 57
harm to Plaintiffs. Accord Malam, 2020 WL 1672662, at **4, 12; Wilson, 2020 WL 1940882, at *8; Thakker, 2020 WL 1671563, at *8 n.15. As such, they concede that the conditions in the Jail are unconstitutional with respect to the Pre-Trial Subclass, which need only show that they are exposed to an objectively unreasonable risk of harm in order to establish a violation of their Fourteenth Amendment rights. See Richmond, 885 F.3d at 938 n.3; Pl. TRO Br. at 15 & n.6.
2. Defendants Are Subjectively Aware of the Risks. Plaintiffs also satisfy the “subjective” component of the Eighth Amendment test because Defendants acknowledge their awareness of the risks of the COVID-19 pandemic to the incarcerated population. Indeed, based on the publicity, warnings, letters, and CDC guidance surrounding the COVID-19 pandemic, it can hardly be doubted that “risk of harm is obvious.” Farmer, 511 U.S. at 842. Defendants offer two responses, neither persuasive. First, they contend essentially that they are not “deliberately indifferent” because they are making efforts to keep the Jail safe and are not exhibiting “total unconcern” for inmates’ welfare. But that is not the law. Plaintiffs are not required to demonstrate that Defendants are bad people, harbor malicious intent, or are personally responsible for having created conditions that are now intolerable. Even if Defendants were trying their best to achieve social distancing (contrary to the record in this case), their conceded and knowing inability to accomplish it establishes their subjective
40

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1101 Page 47 of 57
awareness of the unconstitutional conditions in the Jail. In Plata, for example, the Supreme Court confirmed that where a reduction in prison population is the only way to cure a constitutional violation, an injunction may issue even if the defendants did not intend to create the overcrowding. Plata, 563 U.S. at 521, 526–29.
Thus, when “the risk of harm is obvious,” Farmer, 511 U.S. at 842, Defendants’ conduct is unconstitutional because they have the information they need to know that whatever attempts they are making are not enough to keep Plaintiffs safe. See Malam, 2020 WL 1672662, at **11–12 (finding deliberate indifference even though jail “t[ook] a range of precautionary measures” because “even with these precautionary measures, in light of Petitioner’s underlying health conditions, she is not ensured anything close to ‘reasonable safety’”); see also Wilson, 2020 WL 1940882, at *8; Fofana, 2020 WL 1873307, at *8.
This principle is illustrated by binding precedent in injunctive relief cases. The Supreme Court has held that if “the evidence before a district court establishes that an inmate faces an objectively intolerable risk of serious injury, the defendants could not plausibly persist in claiming lack of awareness.” Farmer, 511 U.S. at 846 n.9. Similarly, in cases involving “future conduct to correct prison conditions,” the Sixth Circuit has said that “[i]f those conditions are found to be objectively unconstitutional, then that finding would also satisfy the subjective prong because the same information that would lead to the court’s conclusion was available to the
41

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1102 Page 48 of 57
prison officials.” Hadix v. Johnson, 367 F.3d 513, 526 (6th Cir. 2004). Consequently, it is Defendants’ knowledge of the conditions that threaten
Plaintiffs’ health and safety that is the critical factor in analyzing Plaintiffs’ claims. And that analysis demands the conclusion that the Medically Vulnerable Subclass is entitled to immediate relief. For, despite any efforts Defendants are making,20 they admit that six-feet social distancing is currently impossible in the Jail. That impossibility does not make the jailer immune; it requires the removal of individuals whose confinement in the Jail cannot be made safe.
Continuing to expose medically vulnerable individuals to deadly contagion so clearly meets the deliberate indifference standard that immediate relief removing them from the Jail environment is the only way to address the constitutional violation. See Malam, 2020 WL 1672662, at *8 (“[E]ven the most stringent precautionary measures—short of limiting the detained population itself—simply cannot protect [vulnerable] detainees from the extremely high risk of contracting this unique and deadly disease.”); Fofana, 2020 WL 1873307, at *8 (releasing medically vulnerable detainees despite jail taking “some steps to address the COVID-19
20 Defendants told this Court last Thursday that they have no obligation to provide additional care to medically vulnerable Plaintiffs and will not do so. See Appendix C at 11 (transcript of Apr. 23, 2020 hearing). Thus, even accepting that Defendants are not responsible for the difficulties of achieving social distancing in the Jail, they clearly have not tried to reduce the risks to medically vulnerable individuals.
42

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1103 Page 49 of 57
pandemic”); Thakker, 2020 WL 1671563, at *9 (ordering release where facilities were “plainly not equipped to protect Petitioners” even though the “deficiency is neither intentional nor malicious”); Wilson, 2020 WL 1940882, at *8 (ordering release despite defendants “offer[ing] certain prison-practice changes to show they know COVID-19 risks and have sought to reduce those risks”).
Defendants cannot hide behind the fact that the CDC says that social distancing measures will need to “be tailored to the individual space in the facility.” Def. Br. at 36. The CDC guidance does not state what is medically required to protect people’s lives—which is the analysis the Eighth and Fourteenth Amendments require. Nor are these specific statements a repudiation of the CDC’s scientific guidance that social distancing is required to stop the transmission of the virus and why, in other settings, the CDC recommends wholesale cancellation of schools, closures of nursing facilities and business offices, cancellation of “faithbased gatherings of any size,” and emphasizes that social distancing is “especially important” for vulnerable individuals.21 Indeed, in its correctional guidance, the CDC describes social distancing as “a cornerstone of reducing transmission of respiratory diseases such as COVID-19.” Compl., Ex. 6 at 4.
In any event, it is ultimately for this Court to determine whether the risk to
21 See Appendix D (compiling CDC guidance documents).
43

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1104 Page 50 of 57
Plaintiffs’ lives is an unconstitutional one. And Plaintiffs’ experts expressly confirm that proper social distancing is medically necessary to protect people from the risk of serious harm posed by COVID-19, especially the medically vulnerable, and they explain that the CDC’s correctional guidance reflects harm reduction principles recognizing that some Jails will not do what is actually safe. Stern Decl. ¶ 9; Lauring Decl. ¶ 24. These scientific facts, of which Defendants are aware, render them deliberately indifferent to the objective risks to the lives and health of the Medically Vulnerable Subclass.
Defendants’ second major argument against a finding of deliberate indifference is to assert that they are taking responsive protective measures. See Def. Exs. B, F, M (jail manager declarations). But their generalized claims are not credible when compared with the detailed declarations provided Plaintiffs. For example, Curtis Childs claims that no one has been transferred to the main jail as punishment, Ex. B ¶ 15, but does not address the specific claims by two Plaintiffs who were the victims of such transfers or the fact that a sign was posted in the laundry room making such a threats as a matter of policy. Facts, Section III.F, supra. Childs also states that inmates are given adequate soap and cleaning supplies, Childs Decl. ¶ 6, but does not explain how almost every declarant reports otherwise, see Facts, Section III.D, supra. Similarly, Defendants rely on a declaration from VickiLyn Warren, who claims that sick slips are distributed daily, inmates are properly
44

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1105 Page 51 of 57
assessed for COVID-19, and named Plaintiffs in the medically vulnerable subclass lack a medical vulnerability. Def. Ex. F. Yet Ms. Warren does not explain how it is that multiple inmate declarants were unable to obtain medical attention, Facts Section III.C, supra, resulting in three declarants (one a paramedic) having to sweat it out while infecting cellmates, Arsineau Decl. ¶¶ 5–8; Briggs Decl. ¶¶ 8–9; Kucharski Decl. ¶¶ 8–10. Nor does she explain the withdrawal of nurses from the Annex, or the fact that two medically vulnerable plaintiffs are receiving their hypertension medication from the Jail itself.
Defendants’ only real response is to call the declarants liars and “wonder if these career criminals are not simply looking for a ‘get-out-of-jail-free’ card.” Def. Br. at 10. Defendants’ sweeping suggestion that anyone convicted of a crime is a liar ignores: (1) the interlocking and mutually corroborating nature of declarants’ testimony; (2) five of eight declarants are not medically vulnerable and thus have not sought to “get out of jail free”; and (3) two declarants (Arsineau and Kucharski) were scheduled to get out of jail anyhow within a few days of filing. Rather, one might wonder, based on the generalized and easily refuted nature of Defendants’ declarations, whether they have an incentive to be fully forthcoming about the brutal and embarrassing conditions they have overseen in the Jail.
Defendants again rely on Money v. Pritzker, but Money does not support their position. The court there concluded that plaintiffs had not shown “deliberate
45

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1106 Page 52 of 57
indifference” to an unconstitutional risk of serious harm because numerous measures were being implemented such that there was no factual showing of an immediate intolerable risk to the plaintiffs’ health and lives. Money, 2020 WL 1820660, at *17– 18. Most importantly, however, Money did not have the benefit of an evidentiary record that establishes that the only way to mitigate medically intolerable serious risk of infection was social distancing, nor did it have the rich record presented here of a systemic failure to take other measures.
For these reasons, Plaintiffs have shown that their Eighth Amendment rights are being violated, a preliminary injunction should issue, and an unacceptable risk to the Medically Vulnerable Subclass will persist no matter what Defendants do. Their immediate release is warranted pursuant to Counts III and IV. To the extent factual disputes as potentially dispositive of Plaintiffs’ request for preliminary injunctive relief regarding Counts I and II, an evidentiary hearing should be held.
B. Defendants’ Deliberate Indifference Is Attributable to Oakland County Under Monell.
“A municipality or other local government may be liable under [42 U.S.C. § 1983] if the governmental body itself subjects a person to a deprivation of rights or causes a person to be subjected to such deprivation.” Richmond, 885 F.3d at 948 (quotation and citation omitted). “To make such a claim, plaintiffs must prove that ‘action pursuant to official municipal policy caused their injury.” Id. (quoting Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)). “[O]fficial
46

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1107 Page 53 of 57
municipal policy extends to “the acts of its policymaking officials[] and practices so persistent and widespread as to practically have the force of law.” Id..
Here, Plaintiffs are incarcerated in the Oakland County Jail, so Oakland County and the official-capacity defendants are responsible for ensuring that Plaintiffs are protected from and not exposed to the jail-wide substantial risks posed by COVID-19. See McKinney, 509 U.S. at 32 (quoting DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 199–200 (1989)). Defendants acknowledge that they have been aware of the jail-wide risk for some time, so there can be little doubt that they are responsible for the policy response.
In similar cases, courts have held that municipal policies, practices, and customs violate the Constitution. For example, in Duvall v. Dallas Cty., Tex., 631 F.3d 203 (5th Cir. 2011), there was a “legally sufficient evidentiary basis for a reasonable jury to find a custom or practice” of deliberate indifference to a jail outbreak of an infectious disease in the Dallas County Jail.
Here, as in Duvall, there is overwhelming evidence of policies, practices, and customs exhibiting deliberate indifference. Based on Plaintiffs’ extensive factual record, Dr. Lauring concluded that the Jail “is not only obviously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak . . . but in some cases . . . it is intentionally exposing inmates to COVID-19 as retribution for raising concerns about safety.” Lauring Decl. ¶ 27. Defendants are either unwilling or
47

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1108 Page 54 of 57
unable, as a matter of policy to take steps needed to control the infection. Stern Decl. ¶ 15; Lauring Decl. ¶¶ 26–34. See generally Facts, supra.
Taken together, Defendants’ action and inaction plainly reflects municipal policy. See Duvall, 631 F.3d at 208–09. The inability to provide social distancing alone, which Defendants have acknowledged, suffices to show a “direct causal link between [the County’s] action and the deprivation of federal rights.” Gregory v. Shelby Cty., 220 F.3d 433, 442 (6th Cir. 2000). And the larger policy failure to take adequate and known measures to alleviate the threat makes the link yet more clear.
Defendants’ arguments against Monell liability are unpersuasive. First, Defendants say that because COVID-19 is novel, they cannot be responsible for failing to take proper precautions to protect inmates. Def. Br. at 26. The Supreme Court has expressly rejected the notion that a jail can avoid liability in the face of a known “unsafe, life-threatening condition in their prison” simply because nothing “yet had happened to [the inmates].” McKinney, 509 U.S. at 33. “[A] remedy for unsafe conditions need not await a tragic event.” Id.
Second, Defendants take issue with Plaintiffs’ “anecdotal” evidence of unconstitutional conditions, citing cases that suggest that a municipal policy cannot be established based on “one instance of potential misconduct.” Def. Br. at 45 (citation omitted). But this argument, if accepted by the Court, would construct an impossible burden of proof. Who but the people detained inside the jail could offer
48

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1109 Page 55 of 57
testimony regarding the conditions inside? Moreover, Plaintiffs are not relying on allegations of “one instance of potential misconduct,” but rather on eight interlocking and mutually corroborative declarations that demonstrate a clear and systemic policy failure to protect the Jail population from the pandemic.
Defendants’ position is also foreclosed by controlling case law. The Sixth Circuit has held that plaintiffs may prove a policy, custom, or practice by pointing to “a single incident of arguably unconstitutional activity,” combined with “proof that the activity ‘was [arguably] caused by an existing, unconstitutional municipal policy.’” Richmond, 885 F.3d at 948 (quoting City of Oklahoma v. Tuttle, 471 U.S. 808, 823-24 (1985)). The County and official defendants are solely responsible for maintaining practices that will protect those it detains from “a substantial risk of serious harm.” Indeed, this is their constitutional duty. Farmer, 511 U.S. at 834. There is no serious dispute that the official policies, practices, and customs of the Defendants are at issue. The Monell standard is satisfied here.
CONCLUSION Defendants contend that this Court is powerless to protect inmates, even if floodwaters are rising at the Jail’s doorstep. Defendants are wrong. Their motion to dismiss should be denied and a preliminary injunction should issue. This Court has jurisdiction to remove medically vulnerable people from the Jail, and it should so immediately. The floodwaters are rising.
49

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1110 Page 56 of 57

Respectfully submitted,

/s/ Krithika Santhanam Krithika Santhanam (DC Bar No. 1632807) Thomas B. Harvey (MBE #61734MO)* Advancement Project National Office 1220 L Street, N.W., Suite 850 Washington, DC 20005 Tel: (202) 728-9557 Ksanthanam@advancementproject.org Tharvey@advancementproject.org
/s/ Philip Mayor Philip Mayor (P81691) Daniel S. Korobkin (P72842) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6803 pmayor@aclumich.org dkorobkin@aclumich.org

/s/ Cary S. McGehee Cary S. McGehee (P42318) Kevin M. Carlson (P67704) Pitt, McGehee, Palmer, Bonanni & Rivers, PC 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 cmcgehee@pittlawpc.com kcarlson@pittlawpc.com
/s/ Allison L. Kriger________ Allison L. Kriger (P76364) LaRene & Kriger, PLC 645 Griswold, Suite 1717 Detroit, MI 48226 (313) 967-0100 Allison.kriger@gmail.com

/s/ Alexandria Twinem Alexandria Twinem (D.C. Bar No. 1644851) Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Tel: 202-894-6126 Fax: 202-609-8030 alexandria@civilrightscorps.org

Attorneys for Plaintiffs/Petitioners

*Applications for admission forthcoming

Dated: April 27, 2020

50

Case 2:20-cv-10949-LVP-MJH ECF No. 33 filed 04/27/20 PageID.1111 Page 57 of 57
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing instrument was filed with the U.S. District Court through the ECF filing system and that all parties to the above cause was served via the ECF filing system on April 27, 2020.
Signature: ___/s/ Carrie Bechill 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 (248) 398-9800 cbechill@pittlawpc.com

Case 2:20-cv-10949-LVP-MJH ECF No. 33-1 filed 04/27/20 PageID.1112 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,
v. MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,
Defendants.

Case No. 20-cv-10949 Hon. Linda V. Parker

INDEX OF EXHIBITS Appendix A – Calderon Order and Fraihat Docket Entry Appendix B – Savino Order Appendix C – Cameron v. Bouchard Status Conference Transcript Appendix D – Centers for Disease Control COVID-19 Guidance

Case 2:20-cv-10949-LVP-MJH ECF No. 33-2 filed 04/27/20 PageID.1113 Page 1 of 14
Appendix A

Case 2:20C-cavs-1e019:4198-LcvV-P1-0M22JH5-MELCWF NDoo.c3u3m-2entfi5le0d704F/2ile7d/203/2P6a/2g0eIDP.1a1g1e41 oPf 1age 2 of 14

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

LILIAN PAHOLA CALDERON JIMENEZ

)

AND LUIS GORDILLO, ET AL.,

)

individually and on behalf of all )

others similarly situated,

)

)

Petitioners-Plaintiffs,

)

)

v.

)

)

CHAD WOLF, ET AL.,

)

)

Respondents-Defendants.

)

C.A. No. 18-10225-MLW

MEMORANDUM AND ORDER

WOLF, D.J.

March 26, 2020

Attached is a transcript of the decision, issued orally on March 25, 2020, granting the Motion for Immediate Interim Release of Class Member Salvador Rodriguez-Aguasviva (Docket No. 500).

Case 2:20C-acsve-110:91489-c-LvV-1P0-2M2J5H-MLEWCF DNooc.u3m3-e2nt f5il0e7d-104/F2i7le/2d003/P2a6g/2e0ID.P1a1g1e5 1 oPfa7ge 3 of 14 1

1 2 3 4 5 6 7 8 9 03:23 10 11 12 13 14 15 16 17 18 19 03:24 20 21 22 23 24 25

* * * * * THE COURT: I'm going to decide this matter, and I will explain my decision. The transcript will be a record of the decision and you must order it. It's possible I'll write this up, but I do think this is an urgent matter and I should tell you my decision, so I will. First, I've concluded for the reasons described by the Second Circuit in Mapp v. Reno, 241 F. 3d 221 at 230, a 2001 Second Circuit case, that District Courts do have the power to order the release of immigration detainees on bail. I don't think that the REAL ID Act alters that fundamental authority. As I said earlier, I believe that the Glynn v. Donnelly case, the First Circuit case, 470 F.2d 95, 98 is distinguishable in a material respect. In Glynn, the First Circuit did hold that in certain extraordinary circumstances a District Court could release a detained petitioner before the petition was decided on the merits. It created a higher standard or stated a higher standard than the Second Circuit in Mapp. In Glynn, the petitioner was somebody who had been convicted of a crime. I believe his appeal had been denied, and then he was petitioning for habeas corpus, but he had no presumption of innocence. In this case, it's important to remember we're talking about a civil detainee, somebody who has never been charged, let alone convicted of any crime. And I think that the Mapp

Case 2:20C-acsve-110:91489-c-LvV-1P0-2M2J5H-MLEWCF DNooc.u3m3-e2nt f5il0e7d-104/F2i7le/2d003/P2a6g/2e0ID.P1a1g1e6 2 oPfa7ge 4 of 14 2

1 2 3 4 5 6 7 8 9 03:25 10 11 12 13 14 15 16 17 18 19 03:26 20 21 22 23 24 25

test or something similar or perhaps less is appropriate. As I said, the Mapp test where the court in Mapp said -- I don't know -- somebody perhaps didn't mute their phone because, unless I'm hearing the court reporter, there's something clicking, banging.
But the court in Mapp said the court considering a habeas petitioner's fitness for bail must inquire into whether the habeas petitioner raises substantial claims and whether extraordinary circumstances exist to make the grant of bail necessary to make the habeas remedy effective. And I would add to that that, even if those requirements are met, the court would have to be satisfied that the petitioner would not be a danger to the community, reasonably assured that the petitioner would not be a danger to the community or not would flee if released on reasonable feasible conditions.
I do find, without expressing any prediction of how the merits will be resolved, that a substantial claim or question is raised by the petitioner's habeas petition. The initial description by ICE of the reason for his detention -- well, the reason for his detention sent to petitioner's counsel in an email was that in effect -- well, that he was likely to be unable -- the petitioner was likely to be unable to receive an approved I-601A because he did not appear at his removal hearing. He was ordered removed in absentia. The essence of this, the way it was stated initially indicated that ICE was

Case 2:20C-acsve-110:91489-c-LvV-1P0-2M2J5H-MLEWCF DNooc.u3m3-e2nt f5il0e7d-104/F2i7le/2d003/P2a6g/2e0ID.P1a1g1e7 3 oPfa7ge 5 of 14 3

1 2 3 4 5 6 7 8 9 03:28 10 11 12 13 14 15 16 17 18 19 03:29 20 21 22 23 24 25

under the impression or misimpression that the petitioner is ineligible for an I-601A.
While I've commended Mr. Lyons and Mr. Charles on many things they've done, since June 2018, I have found ICE has repeatedly failed to understand its own regulations as I held in 2018. And I learned, to my dismay, in the fall of 2019, when the witness responsible for much of the national program for many years testified that he didn't understand -- he didn't realize there was a regulation that required that everybody detained more than six months had to be interviewed. It would be sadly consistent with the pattern in this case if ICE misunderstood whether somebody who failed to appear for a removal hearing was ineligible for an I-601A.
And indeed it appears that ICE's position has evolved and they don't take that position anymore. Mr. Lyons has articulated in his declaration other reasons for the detention, but there is the question of whether those reasons were in his mind when he decided to detain the petitioner or whether the affidavit that appears to have been drafted by a lawyer has rationalizations that weren't part of the decisionmaking process at issue. That's an issue that I may need to hear testimony on. I also -- but I do think that there's a substantial question, a substantial claim.
In addition, I find that extraordinary circumstances exist that make the grant of bail necessary to make the habeas

Case 2:20C-acsve-110:91489-c-LvV-1P0-2M2J5H-MLEWCF DNooc.u3m3-e2nt f5il0e7d-104/F2i7le/2d003/P2a6g/2e0ID.P1a1g1e8 4 oPfa7ge 6 of 14 4

1 2 3 4 5 6 7 8 9 03:31 10 11 12 13 14 15 16 17 18 19 03:32 20 21 22 23 24 25

effective, to make the habeas remedy effective. To be blunt, we're living in the midst of a coronavirus pandemic. Some infected people die; not all, but some infected people die. If the petitioner is infected and dies, the case will be moot. The habeas remedy will be ineffective.
And being in a jail enhances risk. Social distancing is difficult or impossible. Washing hands repeatedly may be difficult. There is, it appears not to be disputed, one court -- one Plymouth County jail employee who has been infected, and there's a genuine risk that this will spread throughout the jail. Again, the petitioner is in custody with people charged with or convicted of crimes. He's not been charged or convicted of anything.
I've also considered what I ordinarily consider in making or reviewing bail decisions in criminal cases. There's no contention that the petitioner will be dangerous to any individual or the community if he's released on reasonable conditions.
ICE does contend that he would be a risk of flight. That is based on the fact that he missed one immigration hearing at which his removal was ordered and apparently did not tell ICE of his change of address. And he is facing a serious risk of being removed. He may not prevail on the habeas petition. And if he does, he may not get a provisional waiver.
However, there's no indication that the petitioner has

Case 2:20C-acsve-110:91489-c-LvV-1P0-2M2J5H-MLEWCF DNooc.u3m3-e2nt f5il0e7d-104/F2i7le/2d003/P2a6g/2e0ID.P1a1g1e9 5 oPfa7ge 7 of 14 5

1 2 3 4 5 6 7 8 9 03:33 10 11 12 13 14 15 16 17 18 19 03:35 20 21 22 23 24 25

anyplace to go. Being among other people, say, in a homeless shelter is very dangerous, like being in a jail. There's no indication that he has any relatives or others who might take him in other than his wife. And I am ordering that he live with his wife in Lawrence, Massachusetts; that he stay in their residence, except if there is a medical need for him to leave; and, unless it's a genuine emergency, he would need the permission of ICE to leave. And he is to be on electronic monitoring, so if he leaves the residence when he hasn't been authorized to leave, ICE would know that and, if appropriate, could come back to me to revoke his release.
In addition, there are certain equities that favor the release of the petitioner. He's now been detained since September 4, 2019. On January 27, the motion was filed to enjoin his removal. As I indicated in the course of the argument, with the assent of petitioner's counsel, class counsel, ICE has repeatedly been given extensions of time to respond to the motion.
On January 31, 2020, the parties filed a joint motion to give ICE until February 14 to confer, and then on February 13, the respondents filed an unopposed motion for an extension of time to file their opposition until February 20, which I allowed. Then I was asked not to schedule a hearing in this case until after March 25 because Mr. Lyons would not be available from March 10 to 24. I accommodated that. And I was

Case 2:20C-acsve-110:91489-c-LvV-1P0-2M2J5H-MLEWCF DNooc.u3m3-e2nt f5il0e7d-104/F2i7le/2d003/P2a6g/2e0ID.P1a1g2e0 6 oPfa7ge 8 of 14 6

1 2 3 4 5 6 7 8 9 03:36 10 11 12 13 14 15 16 17 18 19 03:38 20 21 22 23 24 25

told that local counsel, Ms. Piemonte, would be on trial until April 6. On March 19 I allowed the respondent's motion for respondents to file a sur-reply. And though it's possible, except for ICE asking for and receiving extensions of time to respond or file a sur-reply, that there would have been a hearing and a decision on this case earlier.
So essentially we're in a circumstance where an individual who has not been accused of any crime has been detained for -I think it comes to about six and a half months. Part of that is because I've stayed his removal pending the decision on his motion to enjoin removal, but because of accommodations to ICE, that wasn't fully briefed until less than a week ago, and I had been asked to defer to Mr. Lyons' availability, which I did.
So for all of those reasons, I'm ordering that the petitioner be released no later than tomorrow, March 26, 2020, on the conditions I articulated and will memorialize in a brief order.
I'm ordering counsel for ICE to inform me when he has been released, and if there's some problem with implementing this order by tomorrow, you'll have to let me know promptly. Petitioners' counsel I'm directing, ordering, to inform the petitioner and his wife of my decision, including the requirements that he live with his wife and that he be on electronic monitoring. And he'll have to confirm for ICE, he'll have to provide ICE her address if they don't have it and

Case 2:20C-acsve-110:91489-c-LvV-1P0-2M2J5H-MLEWCF DNooc.u3m3-e2nt f5il0e7d-104/F2i7le/2d003/P2a6g/2e0ID.P1a1g2e1 7 oPfa7ge 9 of 14 7

1 confirm her willingness to have her husband with her for the

2 duration of this case.

3

* * * * *

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

4/27/202C0 ase 2:20-cv-10949-LVP-MJH ECF No.C3M3/E-C2F - fCilaelifdorn0ia4C/2en7tr/a2l D0istricPt ageID.1122 Page 10 of 14
Query Reports Utilities Help Log Out
ACCO,TRO,194,RELATED-DDJ,STAYED
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Eastern Division - Riverside)
CIVIL DOCKET FOR CASE #: 5:20-cv-00590-TJH-KS

Faour Abdallah Fraihat v. Chad T. Wolf et al Assigned to: Judge Terry J. Hatter, Jr Referred to: Magistrate Judge Karen L. Stevenson Related Case: 5:07-cv-01687-VAP-JTL Cause: 28:2241 Petition for Writ of Habeas Corpus (federal)

Date Filed: 03/23/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus - Alien Detainee Jurisdiction: U.S. Government Defendant

Petitioner Faour Abdallah Fraihat

represented by David Lee Menninger Federal Public Defenders Office 321 East 2nd Street Los Angeles, CA 90012-4202 213-894-1891 Fax: 213-894-0081 Email: david_menninger@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy M Karlin Federal Public Defenders Office 321 East 2nd Street Los Angeles, CA 90012 213-894-4283 Fax: 213-894-0081 Email: amy_karlin@fd.org ATTORNEY TO BE NOTICED

V.
Respondent
Chad T. Wolf Acting Secretary of Homeland Security

represented by Paul Bartholomew Green AUSA - Office of US Attorney 300 North Los Angeles Street Suite 7516 Los Angeles, CA 90012 213-894-0805 Fax: 213-894-7819 Email: Paul.Green@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?107410112980227-L_1_0-1

Assistant 2241-194 US Attorney LA-CV AUSA - Office of US Attorney Criminal Division - US Courthouse 312 North Spring Street 12th Floor
1/5

4/27/202C0 ase 2:20-cv-10949-LVP-MJH

ECF No.C3M3/E-C2F - fCilaelifdorn0ia4C/2en7tr/a2l D0istricPt ageID.1123 Page 11 of 14 Los Angeles, CA 90012-4700 213-894-2434 Email: USACAC.Habeas@usdoj.gov ATTORNEY TO BE NOTICED

Respondent
Matthew T. Albence Deputy Director and Senior Official Performing Duties of the Director of U.S. Immigration and Customs Enforcement

OIL-DCS Trial Attorney Office of Immigration Litigation District Court Section PO Box 868 Ben Franklin Station Washington, DC 20044 202-353-8806 Email: oil-dcs.cacd@usdoj.gov ATTORNEY TO BE NOTICED
represented by Paul Bartholomew Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Assistant 2241-194 US Attorney LA-CV (See above for address) ATTORNEY TO BE NOTICED

Respondent
David A. Marin Field Office Director

OIL-DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED
represented by Paul Bartholomew Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Assistant 2241-194 US Attorney LA-CV (See above for address) ATTORNEY TO BE NOTICED

Respondent
James Janecka Warden, Adelanto ICE Processing Center

OIL-DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED
represented by Assistant 2241-194 US Attorney LA-CV (See above for address) ATTORNEY TO BE NOTICED

OIL-DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED

Date Filed # Docket Text

https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?107410112980227-L_1_0-1

2/5

4/27/202C0 ase 2:20-cv-10949-LVP-MJH ECF No.C3M3/E-C2F - fCilaelifdorn0ia4C/2en7tr/a2l D0istricPt ageID.1124 Page 12 of 14 03/23/2020 1 PETITION for Writ of Habeas Corpus by a Person in Federal Custody (28 USC 2241),, filed by petitioner Faour Abdallah Fraihat. (Attachments: # 1 Exhibit Exhibits A-I) (Attorney David Lee Menninger added to party Faour Abdallah Fraihat(pty:pet)) (Menninger, David) (Entered: 03/23/2020)

03/23/2020

2 CIVIL COVER SHEET filed by Petitioner Faour Abdallah Fraihat. (Menninger, David) (Entered: 03/23/2020)

03/23/2020

3 APPLICATION for Temporary Restraining Order as to for petitioner's release filed by petitioner Faour Abdallah Fraihat. (Attachments: # 1 Proposed Order Proposed Temporary Restraining Order, # 2 Proposed Order Proposed Order to Show Cause Why Preliminary Injunction Should Not Issue) (Menninger, David) (Entered: 03/23/2020)

03/23/2020

(Menninger, David) (Entered: 03/23/2020)

03/23/2020

4 NOTICE OF REFERENCE to a U.S. Magistrate Judge. This case has been assigned to the calendar of the Honorable District Judge Virginia A. Phillips and referred to Magistrate Judge Karen L. Stevenson, who is authorized to consider preliminary matters and conduct all further hearings as may be appropriate or necessary. Pursuant to Local Rule 83-2.4, the Court must be notified within five (5) days of any address change. See notice for additional details. (lh) (Entered: 03/23/2020)

03/24/2020

5 ORDER SETTING BRIEFING SCHEDULE (IN CHAMBERS) by Judge Virginia A. Phillips. Petitioner filed an Application for Temporary Restraining Order on March 23, 2020. Government shall file a response/opposition no later than 12 noon of Thursday, March 26, 2020. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cch) TEXT ONLY ENTRY (Entered: 03/24/2020)

03/24/2020

6 Notice of Appearance or Withdrawal of Counsel: for attorney Paul Bartholomew Green counsel for Respondents Matthew T. Albence, David A. Marin, Chad T. Wolf. Adding Paul B. Green as counsel of record for Chad T. Wolf; Matthew T. Albence; and David A. Marin for the reason indicated in the G-123 Notice. Filed by respondent Chad T. Wolf; Matthew T. Albence; and David A. Marin. (Attorney Paul Bartholomew Green added to party Matthew T. Albence(pty:res), Attorney Paul Bartholomew Green added to party David A. Marin(pty:res), Attorney Paul Bartholomew Green added to party Chad T. Wolf(pty:res))(Green, Paul) (Entered: 03/24/2020)

03/24/2020

7 NOTICE of Related Case(s) filed by petitioner Faour Abdallah Fraihat. Related Case(s): ED CV17-1370-VAP-KS; ED CV 19-1546-JGB-SHK (Menninger, David) (Entered: 03/24/2020)

03/26/2020

8 MEMORANDUM in Opposition to APPLICATION for Temporary Restraining Order as to for petitioner's release 3 filed by Respondents Matthew T. Albence, David A. Marin, Chad T. Wolf. (Attachments: # 1 Declaration of Edgar Duran, # 2 Declaration of Paul B. Green, # 3 Exhibit A, # 4 Exhibit B (Moon Declaration))(Green, Paul) (Entered: 03/26/2020)

03/26/2020

9 REQUEST FOR JUDICIAL NOTICE of Exhibit B to the Declaration of Paul B. Green (ECF No. 8-4) filed by Respondents Matthew T. Albence, David A. Marin, Chad T. Wolf. (Green, Paul) (Entered: 03/26/2020)

03/26/2020

10 SUPPLEMENT to APPLICATION for Temporary Restraining Order as to for petitioner's release 3 March 26, 2020 Declaration of Captain Moon, in Opposition to Petitioner's Application for Temporary Restraining Order, filed by Respondents Matthew T. Albence, David A. Marin, Chad T. Wolf. (Green, Paul) (Entered: 03/26/2020)

03/27/2020

11 RESPONSE IN SUPPORT of APPLICATION for Temporary Restraining Order as to for petitioner's release 3 filed by Petitioner Faour Abdallah Fraihat. (Attachments: # 1 Exhibit

https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?107410112980227-L_1_0-1

3/5

4/27/202C0 ase 2:20-cv-10949-LVP-MJH ECF No.C3M3/E-C2F - fCilaelifdorn0ia4C/2en7tr/a2l D0istricPt ageID.1125 Page 13 of 14 Exhibits J and K)(Menninger, David) (Entered: 03/27/2020)

03/27/2020

12 ORDER TRANSFERRING CIVIL ACTION pursuant General Order 19-03. ORDER case transferred from Judge Virginia A. Phillips to the calendar of Judge Terry J. Hatter, Jr for all further proceedings. The case number will now reflect the initials of the transferee Judge 5:20-cv-00590. Signed by Judge Virginia A. Phillips and Judge Terry J. Hatter, Jr.. (rn) (Entered: 03/27/2020)

03/27/2020

13 MINUTE IN CHAMBERS -NEW CASE BEFORE JUDGE HATTER: This action has been assigned to the calendar of the HONORABLE TERRY J. HATTER, JR., United States District Judge. Please include the initials TJH in all documents pertaining to this case, as documents are routed using the judges initials, it is imperative that the correct initials TJH be used on all subsequent filings to prevent any delays in the processing of documents. Judge Hatter's Courtroom Deputy Clerk is Yolanda Skipper. She can be reached at (213) 894-5276. Counsel shall not attempt to contact the Court or its chambers staff by telephone or by any other ex parte means, although counsel may contact the Courtroom Deputy, Yolanda Skipper, at: yolanda_skipper@cacd.uscourts.gov, with appropriate inquiries. Judge Hatters courtroom is located on the 9th Floor, at 350 W. 1st Street, United States Courthouse, Courtroom No. 9B. Additional information about Judge Hatters procedures and schedules can be found on the courts website at www.cacd.uscourts.gov. The Court further orders Respondent to file their opposition to the Temporary Restraining Order by no later than Monday, March 30, 2020 at 5pm. See order for further details. (shb) (Entered: 03/30/2020)

03/30/2020

14 SUPPLEMENT Notice of Supplemental Authority in Opposition to Petitioner's Application for a Temporary Restraining Order filed by Respondents Matthew T. Albence, David A. Marin, Chad T. Wolf. (Green, Paul) (Entered: 03/30/2020)

03/30/2020

15 MINUTE IN CHAMBERS-ORDER AND NOTICE TO ALL PARTIES by Judge Terry J. Hatter, Jr: Counsel are hereby notified that pursuant to the Judge's directive, the Court is considering Petitioner Fraihats ex parte application for a temporary restraining order. Fraihat, or his counsel, shall file, as soon as possible, a supplemental declaration setting forth where and with whom Petitioner would reside and shelter in place if the Court were to grant the requested relief? After filing, a copy of the declaration shall be emailed to TJH Chambers@cacd.uscourts.gov. (shb) (Entered: 03/30/2020)

03/30/2020

16 DECLARATION of David Menninger re Minutes of In Chambers Order/Directive - no proceeding held,, 15 filed by Petitioner Faour Abdallah Fraihat. (Menninger, David) (Entered: 03/30/2020)

03/30/2020

17 DECLARATION of David Menninger re Minutes of In Chambers Order/Directive - no proceeding held,, 15 filed by Petitioner Faour Abdallah Fraihat. (Menninger, David) (Entered: 03/30/2020)

03/30/2020

18 TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE by Judge Terry J. Hatter, Jr: It is Ordered that the application for a temporary restraining order be, and hereby is, Granted. It is further Ordered that Respondents shall, by 5:00 p.m. on March 31, 2020, release Petitioner Faour Abdallah Fraihat from custody pending further order of this Court, and subject to the following conditions of release: 1. Petitioner shall reside, and shelter in place, at the residence of Radi Saad. 2. Petitioner shall be transported from the Adelanto Detention Center directly to the Residence by Radi Saad; 3. Petitioner shall not leave the Residence, pending further order of the Court, except to obtain medical care; 4. Petitioner shall not violate any federal, state or local laws; and 5. At the discretion of DHS and/or BICE, to enforce the above restrictions, Petitioners whereabouts may be monitored by telephonic and/or electronic and/or GPS monitoring and/or a location verification system and/or an automated identification system. It is further Ordered that Respondents shall show cause, if they have any, as to why the Court should not issue a preliminary

https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?107410112980227-L_1_0-1

4/5

4/27/202C0 ase 2:20-cv-10949-LVP-MJH ECF No.C3M3/E-C2F - fCilaelifdorn0ia4C/2en7tr/a2l D0istricPt ageID.1126 Page 14 of 14 injunction in this case. Respondents response, if any, to this order to show cause shall be filed by Noon on April 6, 2020. Fraihats reply, if any, to Respondents response shall be filed by Noon on April 9, 2020. The matter will then stand submitted. See order for further details. (shb) (Entered: 03/31/2020)

04/01/2020

19 FINANCIAL ENTRY: Received $5.00 into the registry of the Court from David Menninger FBO Faour Abdallah Fraihat. Re: Petition for Writ of Habeas Corpus, 1 . Receipt number LA204453. (Fe) (Entered: 04/01/2020)

04/06/2020

20 REPLY To The Order To Show Cause As To Why A Preliminary Injunction Should Not Be Issued filed by Respondents Matthew T. Albence, David A. Marin, Chad T. Wolf. (Attachments: # 1 Declaration of Gabriel Valdez)(Green, Paul) (Entered: 04/06/2020)

04/09/2020

21 REPLY IN SUPPORT OF PRELIMINARY INJUNCTION; EXHIBIT L filed by Petitioner Faour Abdallah Fraihat. (Attachments: # 1 Exhibit L)(Menninger, David) (Entered: 04/09/2020)

04/09/2020

22 NOTICE OF LODGING filed re Reply (Motion related) 21 (Attachments: # 1 Proposed Order Petitioner's Proposed Findings of Fact and Conclusions of Law)(Menninger, David) (Entered: 04/09/2020)

04/10/2020

23 MINUTE IN CHAMBERS-ORDER AND NOTICE TO ALL PARTIES by Judge Terry J. Hatter, Jr: Pursuant to Fed. R. Civ. P. 65(b)(2), the TRO will expire on April 13, 2020, the fourteenth day after the date of issuance, unless, for good cause, the Court extends it. The parties have filed their respective briefs in response to the Courts Order to Show Cause: re: Preliminary Injunction. The Court finds that good cause exists under Rule 65(b)(2)to extend the TRO for an additional 14 days. The good cause is that the extension will allow the Court time to consider the significant constitutional issues raised in the parties briefs. The TRO will remain in effect until April 27, 2020. (shb) (Entered: 04/10/2020)

04/24/2020

24 STAY ORDER by Judge Terry J. Hatter, Jr., that, pursuant to the Preliminary Injunction issued in Roman, Petitioner shall remain released pending a final resolution of Roman or further order of the Court. Further Ordered that pending a final resolution of Roman, this case be, and hereby is, Stayed. (See document for further details). (jp) (Entered: 04/24/2020)

PACER Service Center

Transaction Receipt

04/27/2020 07:02:53

PACER Login:

pmayor714

Client Code:

Description:

Docket Report

Search

5:20-cv-00590-TJH-KS End

Criteria: date: 4/27/2020

Billable Pages:

6

Cost:

0.60

https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?107410112980227-L_1_0-1

5/5

Case 2:20-cv-10949-LVP-MJH ECF No. 33-3 filed 04/27/20 PageID.1127 Page 1 of 7
Appendix B

Case 2:20C-cavs-1e019:4290-LcvV-P1-0M61JH7-WEGCYF NDoo.c3u3m-3entfi4le4d 0F4i/le2d7/0240/04P/2a0geIPDa.1g1e218of P4age 2 of 7

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

___________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO, )

JULIO CESAR MEDEIROS NEVES,

)

and all those similarly situated, )

)

Petitioners, )

)

v.

)

)

STEVEN J. SOUZA,

)

)

Respondent. )

___________________________________)

CIVIL ACTION NO. 20-cv-10617-WGY

YOUNG, D.J.

April 4, 2020

ORDER

As set forth at the hearing on April 3, 2020, it is hereby

Ordered:

1. Upon release by respondent of Hayk Khachatyan, Kokou

Aziabo, Srikalathan Rohan, Firdavs Salakhidinov, Ruben

Poghosyan, and Marcio De Sauza, the petition with respect these

individuals is MOOT.

2. The Court grants bail to Henry Urbina Rivas, Robson

Maria-De Oliveira, and Jervis Vernon pending resolution of the

habeas corpus petition, upon all bail conditions deemed

appropriate and imposed by ICE, and the following additional

terms and conditions as to each of them: (a) release only to an

acceptable custodian; (b) such custodian will pick the releasee

Case 2:20C-cavs-1e019:4290-LcvV-P1-0M61JH7-WEGCYF NDoo.c3u3m-3entfi4le4d 0F4i/le2d7/0240/04P/2a0geIPDa.1g1e229of P4age 3 of 7
up outside the facility by car; (c) releasee will be taken from the facility to the place of residence previously identified to ICE (ICE shall notify the state and local law enforcement authorities about their presence and thee details of their bail status); (d) releasees are to be fully quarantined for 14 days from date leaving facility to the residence; (e) during and after the 14-day quarantine, releasees will remain under house arrest, without electronic monitoring, and shall not to leave the residence for any reason save to attend immigration proceedings or attend to their own medical needs should those needs be so severe that they have to go to a doctor’s office or hospital (in which case they shall notify ICE as soon as practicable of their medical necessity); (f) releasees are not to be arrested by ICE officers unless: (i) upon probable cause a warrant is issued by a United States Magistrate Judge or United States District Judge that they have violated any terms of their bail, or (ii) there is a final order of removal making them presently removable from the United States within two weeks. The Court may, sua sponte or on motion of the parties, modify or revoke the bail provided herein.
3. Bail is DENIED without prejudice to Mohamad Bassyouni subject to resubmission by petitioners' counsel of a more detailed request.
[2]

Case 2:20C-cavs-1e019:4290-LcvV-P1-0M61JH7-WEGCYF NDoo.c3u3m-3entfi4le4d 0F4i/le2d7/0240/04P/2a0geIPDa.1g1e330of P4age 4 of 7
4. The Court continues its consideration of bail for Gerson McGlashin. Respondent shall by the 5:00 p.m. April 6, 2020, provide a detailed explanation to the Court of how ICE intends to execute the final removal order within the next two weeks.
5. The Court continues its consideration of bail for Jesse Maina. Petitioner shall by Friday, April 10, 2020 provide the Court with a detailed plan of where he would reside, with whom, and who would be the custodian.
6. The parties shall by 4:00 pm, Saturday, April 4, 2020, submit, a single list (if possible) of 50 detainee names without regard to groupings previously identified by the Court. If no list is provided, or multiple lists are provided, then the Court will select its own list by 4:00 pm on Sunday, April 5, 2020. The Court proposes, if possible, to review ten petitions for bail per day beginning Tuesday, April 7, 2020, and continuing Wednesday, Thursday, Friday and Monday of the following week. As soon as practicable before each hearing date, the Court requests the parties submit briefing as to each detainee’s circumstances relevant to the Court’s bail determination.
7. The proposed stipulated Protective Order (ECF No. 39-1) is adopted as submitted. All parties are bound by the protective order, including the parties in the related matter.
[3]

Case 2:20C-cavs-1e019:4290-LcvV-P1-0M61JH7-WEGCYF NDoo.c3u3m-3entfi4le4d 0F4i/le2d7/0240/04P/2a0geIPDa.1g1e341of P4age 5 of 7
8. Counsel for Darcy McMenamin and Gerardo Portillo shall by 12:00 noon on Monday April 6, 2020 notify the Court of their response to the respondent’s counsel’s proposal in the related action and whether that matter is resolved.
9. The 48-hour notification order issued in this action (ECF No. 22) does not apply to those voluntarily released by respondent in paragraph 1, supra, as the petition is moot as to those individuals, but it remains in effect as to those individuals granted bail by this Court and all other class members.

SO ORDERED.

__/s/ William G. Young__ WILLIAM G. YOUNG DISTRICT JUDGE

[4]

Case 2:20C-cavs-1e019:4290-LcvV-P1-0M61JH7-WEGCYF NDoo.c3u3m-3entfi4le5d 0F4i/le2d7/0240/04P/2a0geIPDa.1g1e312of P2age 6 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, et al.,
Petitioners-Plaintiffs, v. STEVEN SOUZA
Respondent-Defendant.

Case No. 1:20-cv-10617-WGY

STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION With the agreement of the Parties, the Court having determined that there is good cause for issuance of a protective order to govern the disclosure, use, and handling by the Parties and their respective agents, successors, personal representatives and assignees of certain information in the above-captioned action, IT IS HEREBY ORDERED as follows: 1. Private medical information produced by either Party during informal discovery or otherwise made available for the litigation will not be disseminated beyond the Counsel (including outside counsel) for the Parties, as defined to include associated personnel necessary to assist counsel in this Action, such as law student interns working under the supervision of counsel of record in this matter, litigation assistants, paralegals, and litigation support, information technology, information or records management, investigative, secretarial, or clerical personnel. 2. Such private medical information may be disclosed to experts or consultants for the Parties, provided the attorney of record first informs the expert that such information to be disclosed is confidential and to be used solely for the purpose of this litigation and further that
1

Case 2:20C-cavs-1e019:4290-LcvV-P1-0M61JH7-WEGCYF NDoo.c3u3m-3entfi4le5d 0F4i/le2d7/0240/04P/2a0geIPDa.1g1e323of P2age 7 of 7
these restrictions are imposed by a court order. 3. The Parties will redact all private medical information in any publicly-available
filings submitted to the Court.

Dated: April 4, 2020

_ /_s_/_W__il_li_a_m__G_._Y__o_u_n_g_______________ WILLIAM J. YOUNG UNITED STATES DISTRICT JUDGE

2

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1134 Page 1 of 25
Appendix C

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1135 Page 2 of 25

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMAAL CAMERON, RICHARD BRIGGS, RAJ LEE, MICHAEL CAMERON, MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,

V.
MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County, CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services, OAKLAND COUNTY, MICHIGAN,

CIVIL ACTION NO. 20-10949

Defendants.

_____________________________________/

STATUS CONFERENCE BEFORE THE HONORABLE LINDA V. PARKER
United States District Judge Detroit, Michigan
(All Parties Appearing Telephonically) April 23, 2020

APPEARANCES:
PHILIP EDWIN MAYOR, DANIEL S. KOROBKIN American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 313-578-6824 Email: pmayor@aclumich.org, dkorobkin@aclumich.org.

- - -
To Obtain Certified Transcript: Andrea E. Wabeke
Certified Realtime Reporter • Federal Official Court Reporter Email: federalcourttranscripts@gmail.com

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1136 Page 3 of 25
APPEARANCES CONT'D:
ALLISON L. KRIGER La Rene & Kriger, P.L.C. 645 Griswold-Suite 171 Detroit, MI 48221 313-967-0100
KRITHIKA SANTHANAM Advancement Project 1220 L St NW Suite 850 Washington, DC 20005 202-921-7327 Email: ksanthanam@advancementproject.org
CARY S. McGEHEE Pitt, McGehee 117 W. Fourth Street Suite 200 Royal Oak, MI 48067-3804 248-398-9800 Email: cmcgehee@pittlawpc.com
On behalf of Plaintiffs.
STEVEN M. POTTER, THOMAS M. DeAGOSTINO, ROBERT C. CLARK Potter, DeAgostino, O'Dea & Patterson 2701 Cambridge Court Suite 223 Auburn Hills, MI 48326 248-377-1700 Email: spotter@potterlaw.com, tmdeag@aol.com, rclark@potterlaw.com.
PETER L. MENNA Oakland County Corporation Counsel 1200 N. Telegraph Road Pontiac, MI 48341 248-975-9616 Email: mennap@oakgov.com
On behalf of Defendants.

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1137 Page 4 of 25

I N D E X Proceeding Status Conference........................

Page 3

Exhibit No.

E X H I B I T S
Offered (None Offered)

Received

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1138 Page 5 of 245

Status Conf.

4/23/2020

1

Detroit, Michigan

2

April 23, 2020

3

1:05 p.m.

4

- - - -

5

THE COURT: Telephonic status conference, 20-10949,

6 Cameron, et.al. versus Bouchard, et.al.

7

Counsel, please state your appearances starting with

8 the Plaintiffs.

9

MR. MAYOR: This is Phil Mayor from the ACLU for

10 Plaintiffs.

11

MR. KOROBKIN: This is Daniel Korobkin, also from the

12 ACLU, for the Plaintiffs.

13

MS. McGEHEE: Cary McGehee for the Plaintiffs.

14

MR. CARLSON: Kevin Carlson for the Plaintiffs.

15

MS. SANTHANAM: Krithika Santhanam for the

16 Plaintiffs.

17

MS. KRIGER: Good afternoon. Allison Kriger for the

18 Plaintiffs.

19

THE COURT: All right. The Defendants.

20

MR. POTTER: Mr. Potter, Mr. DeAgastino, and

21 Mr. Clark present, your Honor.

22

MR. MENNA: And Pete Menna also present for the

23 Defendants.

24

THE COURT: I'm sorry, who is the last person?

25

MR. MENNA: Peter Menna, M-e-n-n-a, your Honor.

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1139 Page 6 of 255

Status Conf.

4/23/2020

1

THE COURT: Thank you. Did someone else just join?

2 Okay. All righty. So how are things proceeding, let me hear

3 from you Mr. Potter, with the inspection?

4

MR. POTTER: The inspection is completed, your Honor

5 and went forward without, from my standpoint, a hitch. I got

6 no calls from my clients indicating that the inspector was

7 exceeding the limits of your order, and all reports are that

8 it's completed and he got -- whatever he came to do, he did.

9

THE COURT: Very good. Mr. Mayor?

10

MR. MAYOR: The same report from us. We -- I have

11 not heard any concerns from the inspector and it's news to me

12 that he's out, but sounds good.

13

THE COURT: Okay. He had his test this morning?

14

MR. MAYOR: He did. He had the test.

15

MR. POTTER: He did, yep.

16

THE COURT: He had the test this morning and then he

17 had one at the jail; is that true?

18

MR. POTTER: Yes, and he tested negative on the

19 15-minute test.

20

THE COURT: Okay. Good. Okay. All right. So I've

21 gotten -- I received the agenda in terms of what we need to

22 discuss. Let me just also say something else, too, that the --

23 I'm going to -- you know, the Chambers case that's been filed,

24 we talked about that yesterday. I am -- it doesn't pertain to

25 you all anyway I don't think. I'm going to just meet with the

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1140 Page 7 of 265

Status Conf.

4/23/2020

1 lawyers who are on that case at 2:00 p.m. telephonically. So

2 to whatever extent I might have inferred that there was overlap

3 with Cameron, it is whoever is named on those filings as the

4 Plaintiffs' lawyers and the lawyers for the Defendant who I'll

5 be speaking with at 2:00 p.m. Okay.

6

MR. MENNA: Thank you, your Honor. This is Peter

7 Menna. I think I'm the only lawyer on this call who's also on

8 that one. So thank you.

9

THE COURT: That's right, Mr. Menna. Right.

10 Exactly. Okay. All right. So I see that the first issue that

11 Plaintiffs s would like to raise is whether or not I would want

12 to have oral argument following the briefing that closes early

13 next week, and, you know, my feeling on that is is that I feel

14 like I'd be in a better position to reach that decision once I

15 have reviewed the briefs to determine whether or not I need

16 oral argument, and if that's okay with you, I would like to

17 leave it at that.

18

Let me hear from you, who is speaking on behalf,

19 Mr. Mayor, of the Plaintiffs, is that okay for you?

20

MR. MAYOR: Sure. Of course, your Honor. We just --

21 if there was something that you knew you wanted to do, we

22 wanted to make sure we put it on our calendars.

23

THE COURT: Yes, so you could put it on your

24 calendar.

25

MR. MAYOR: Of course we're at the Court's disposal.

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1141 Page 8 of 275

Status Conf.

4/23/2020

1

THE COURT: Okay. I appreciate that. Okay. And

2 let's see, the next question relates to -- or next issue

3 related to the medically vulnerable Plaintiffs -- okay, the

4 format of the list. This is going forward with the list of

5 those who were deemed to be medically vulnerable. And my view

6 on this is is that that is an issue that I can decide after we

7 deal with the issue of jurisdiction. I just don't see that

8 Mr. Potter is going to do anything in terms of sharing -- you

9 know, starting to produce any of that information.

10

Does that summarize your position, Mr. Potter?

11

MR. POTTER: You're clairvoyant, Judge. You

12 summarized our position, but I would also add to this that we

13 are in the process of compiling the information, and we

14 continue to be in the process, because regardless of what this

15 Court rules, we're still going to do -- request another relief

16 from the state court judges so -- of prisoners. So it's all

17 being done regardless of this lawsuit. But yes, I do not want

18 to produce anything until you settle the jurisdictional issues.

19 Thank you.

20

THE COURT: And you know, the position that I'm

21 holding now, counsel, this applies to everyone, is is that I'm

22 not going to, you know, order Mr. Potter to do so. That would

23 just get into another fight, legally, and I just don't -- I

24 don't want to do it. So -- and that's my decision. So that's

25 where I am on that. I'm going to hold off on -- now, that

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1142 Page 9 of 285

Status Conf.

4/23/2020

1 doesn't mean that the -- you know, I can look at the

2 disagreement. I know what the disagreement is between the

3 parties about the meaning of medically vulnerable. I mean at

4 least I know that at least one of the factors that you're not

5 in agreement upon and that would be the age, correct?

6

MR. MAYOR: Your Honor -- this is Mr. Mayor, I'm

7 sorry. That's true. I understand that your Honor has ruled on

8 the question of going forward.

9

Could I speak to a few facets of that that would

10 concern us?

11

THE COURT: Okay. Yep.

12

MR. MAYOR: One thing is that even if your Honor were

13 to conclude that you don't have jurisdiction to release folks,

14 the list would still be important because the medically

15 vulnerable individuals in the jail still need to be specially

16 treated, and so even if you were to say, you know, I'm not

17 allowed to order anyone out of the jail under any of

18 Plaintiffs' theories, we would still need to know how many

19 medically vulnerable people there are in the jail because it

20 goes to the fact that there may need to be measures taken,

21 especially if they're not being -- getting out somehow to

22 ensure that they have special protections because they would

23 remain medically vulnerable.

24

So I think regardless of the jurisdictional issue,

25 we're going to need that list and it's urgent and so we

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1143 Page 10 of925

Status Conf.

4/23/2020

1 struggle to see why it's so hard, especially because Defendants

2 have represented they already have at least a first round list.

3

And then, you know, our next concern, and this is

4 part of why we wanted to speak about this, is even if your

5 Honor is not willing to order them to turn over the list to us

6 in advance of its jurisdictional ruling, we would suggest that

7 it might be helpful to have some rulings on what needs to go

8 into the list. So this relates to the subject you were

9 alluding to about the definition of medically vulnerable. The

10 parties aren't in full agreement on that definition.

11

Now, if I understand your order correctly, they're

12 required to include people on the list that meet our definition

13 that would be the subclass as we defined it. So if that's

14 what's happening, that's fine. We just want to make sure

15 that's what's happening, but then on top of that, we do have

16 serious concerns about the methodology. What we have been told

17 is that they have derived these lists and then don't intend to

18 change how they derived these lists, simply by looking at

19 intake forms, and we know from what has happened to the named

20 Plaintiffs, that that has failed to identify medical

21 vulnerabilities that we know at least two of the named

22 Plaintiffs have.

23

So if the list it allowed to be created without any

24 orders or instructions from your Honor about who should be on

25 it, then I fear that when the time comes to look at the list,

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1144 Page 11 o1f025

Status Conf.

4/23/2020

1 even if you agree with Mr. Potter about when we can see the

2 list, that what we're going to have is an incomplete list and

3 then we're going to lose more time trying to go back and get it

4 done properly.

5

THE COURT: Okay. I don't fully understand that.

6 I'm going to tell you what I do understand of what you said.

7

MR. MAYOR: Sure.

8

THE COURT: That the medically vulnerable would still

9 have to be specially treated. I get that part.

10

MR. MAYOR: Right.

11

THE COURT: That caught my attention, just in

12 terms of --

13

MR. MAYOR: Okay.

14

THE COURT: Okay. And just expand on that a little

15 bit. So you're saying that we know -- obviously, there are

16 medically vulnerable individuals who are in that jail, and

17 that's the Plaintiffs' position, and even if I don't have

18 jurisdiction, under what the authority from the -- that I have

19 from the TRO, is that why --

20

MR. MAYOR: Well --

21

THE COURT: Tell me.

22

MR. MAYOR: Yeah. So our view is that you will have

23 jurisdiction both under the PLRA and the habeas claim to

24 facilitate getting folks -- medically vulnerable folks out of

25 the jail immediately. And even if you were to decide that we

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1145 Page 12 o1f125

Status Conf.

4/23/2020

1 were wrong about that after reviewing the briefing, it would be

2 vital to ensuring that extra social distancing measures are

3 being taken for the medically vulnerable subclass. So for

4 example, they should be housed in the least congregate

5 environment possible, right. So right now we know, for

6 example, that named Plaintiff Jamaal Cameron is detained in the

7 tank, which is one of the most congregate environments in the

8 jail. He's medically vulnerable. If he's going to be --

9 continue to be detained, which we don't think he should be,

10 then, you know, he should be located into the safest place, not

11 in the most dangerous place, for example.

12

That one we know because he's a named Plaintiff but

13 we don't know how many other similar people might be at issue.

14 So that's the reason why the list is going to be relevant, no

15 matter what your Honor decides about the ability to get people

16 out of jail, because if they're in jail, they still need to be

17 properly -- or handled as best as can be.

18

THE COURT: Okay. Let me hear from you, Mr. Potter.

19

MR. POTTER: I completely disagree with the premise,

20 so that medically vulnerable need special treatment. Their

21 conditions are being taken care of in the jail. I don't -- I

22 don't -- you know, that is -- their construct that they're

23 building here is not a construct that is compatible with what

24 our duties are under the Eighth Amendment. They're going way

25 beyond what the Eighth Amendment would require in terms of

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1146 Page 13 o1f225

Status Conf.

4/23/2020

1 medical care to these individuals, and we are providing medical

2 care to these individuals who have vulnerabilities to the

3 extent they require it. We're doing that. So I don't --

4 they're not -- I don't buy into this special treatment class

5 that they're now alluding to, and in fact, Mr. Mayor told me a

6 few days ago that if you decline on jurisdiction, that the

7 subclass of medically vulnerable is irrelevant.

8

Now, evidently, they're changing positions on that,

9 and so be it. I guess they're entitled to do it, change their

10 mind that is, that what they're asking for is tremendous

11 amounts -- this is discovery, and we haven't even gotten by --

12 we're three, four days into this. We filed one motion for

13 reconsideration. Now, we're filing motions to dismiss today,

14 which you're going to decide Monday or hopefully soon

15 thereafter. This can wait until they -- until we determine

16 whether they're even entitled to discovery, and also on top of

17 that, there is no -- we haven't even begun to talk about the

18 motion for class certification, which we're going to oppose

19 vehemently.

20

So there's so many issues, I think, that need to be

21 resolved before we get into the minutiae of what Mr. Mayor is

22 talking about, which is a discovery issue, and we're -- I'm

23 reporting to the Court again, we are compiling a list of

24 medically vulnerable, per your order, which required us to take

25 into account the Plaintiffs' definition of those individuals in

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1147 Page 14 o1f325

Status Conf.

4/23/2020

1 Paragraph 93 or 4 of their complaint.

2

THE COURT: 94, yes.

3

MR. POTTER: We're doing it. We have dedicated the

4 health administrator for the jail clinic, at significant

5 expense to us in terms of her -- her -- in a time of a

6 pandemic, we've basically taken her out of the delivery of

7 medical care function at the jail, and she's doing nothing but

8 compiling the list right now. So we're complying. They have

9 no evidence -- other -- they talk about their one Plaintiff.

10 That Plaintiff, on a classification screen, denied everything

11 that he says he has in this complaint, and I can send you that

12 classification screen, point blank denied everything. Now he's

13 got diabetes, heart disease and something else.

14

So -- so anecdotally, if they can point to something,

15 which we dispute but -- I don't want to be redundant here. I

16 said what I had to say, your Honor. I agree completely with

17 how you ruled before Mr. Mayor talked, and I don't think he

18 said anything that should cause you to second guess how you

19 ruled at the beginning of this conversation.

20

THE COURT: Okay. Mr. Mayor, anything else?

21

MR. MAYOR: Yes. Thank you, your Honor. I obviously

22 have disagreed with Mr. Potter before on these calls, but I'm

23 literally shocked to hear him say that no special treatment

24 should be given to medically vulnerable individuals. I mean

25 it's almost the definition of being deliberately indifferent to

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1148 Page 15 o1f425

Status Conf.

4/23/2020

1 even say those words. We know that these are the people who

2 are at the highest risk of death or serious injury and that the

3 jail has admitted, in its public comments, that it's impossible

4 to achieve social distancing inside the jail. I believe they

5 admitted it to your Honor as well, and in light of those facts,

6 for Mr. Potter to suggest that the most social distancing

7 possible shouldn't be provided to the most medically

8 vulnerable, evinces a level of callousness that really

9 surprises me.

10

And with respect to the Plaintiffs that we have

11 identified who are medically vulnerable, I just want to correct

12 the record, because Mr. Potter, what he just said was

13 completely inaccurate. Mr. Jamaal Cameron, who is -- who we

14 claim is medically vulnerable has not claimed diabetes, has not

15 claimed heart disease. He has claimed bronchitis and he has

16 claimed hypertension. He is receiving medication from the jail

17 for that hypertension. It is the jail itself that is providing

18 the medication. They're the ones that diagnosed him. So for

19 Mr. Potter to sit here and say that he's going to provide you

20 with a document that shows that he didn't claim it on intake.

21 Even if he didn't claim it on intake, he was diagnosed inside

22 the jail, which goes to the point I was making, that I hope

23 we'll be able to get back to, about the methodology of how

24 these lists are supposedly being compiled.

25

Second, another named Plaintiff, who is medically

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1149 Page 16 o1f525

Status Conf.

4/23/2020

1 vulnerable, Mr. Michael Cameron, one of the bases on which he

2 claims medical vulnerability is obesity. The jail has his

3 weight. The jail has his height. They should be able to

4 calculate his body mass index. That's how you get to an

5 obesity diagnosis. Again, the jail is claiming they have no

6 record or knowledge of the people being medically vulnerable

7 when they have all of the information they should have to know

8 that they're medically vulnerable, and they're clearly not

9 showing up on their medical vulnerability list.

10

As to the resource diversion. Mr. Potter represented

11 to you, I believe our very first call, that they were already

12 creating these lists. I'm a little perplexed as to how the

13 creation of the lists adding new burdens when the jail said it

14 was doing it already.

15

MR. POTTER: Short reply to that, Judge?

16

I did misspeak. There's two Camerons. It's Michael

17 Cameron, not Jamaal, who put in his affidavit that he suffers

18 from hypertension, cardiac disease, and obesity, and denied

19 those in his med screen. It's Michael, not Jamaal. I got my

20 Camerons confused. I apologize for that.

21

THE COURT: Okay. Let's see here. I am still not

22 inclined to get into the discussions of the format of the

23 methodology used to complete it. I'm just not -- I'm not ready

24 to do that. I don't think that -- I don't think that that's

25 going to be -- I don't think that that's an undertaking that I

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1150 Page 17 o1f625

Status Conf.

4/23/2020

1 need to be involved with until I am convinced that I do have

2 jurisdiction here. So please allow me the time to read the

3 briefs and make a decision based on the authority.

4

Now, in terms of the resolution of the disagreement

5 between the parties about the meeting -- meaning of medical

6 vulnerability, I am prepared to accept a short brief from both

7 sides as to why their definition, you know, should be used and

8 what's the authority for the respective definition. I would

9 allow for that, but I just am not going to get into any other

10 resolution dealing with formatting methodology used to compile

11 it, a date certain for the list to be produced, and all of that

12 because it's all just too arbitrary until I learn that I do

13 have jurisdiction here. That's my view at this point.

14

MR. MAYOR: Understood, your Honor. This is

15 Mr. Mayor.

16

THE COURT: Okay. Yep. Do you want to submit any

17 kind of a short brief for me as to why you are -- you know,

18 what -- why you think it should be defined the way the

19 Plaintiffs are defining it and you can include -- I mean you

20 have experts, don't you, Mr. Mayor, that support your

21 definition?

22

MR. MAYOR: Correct.

23

THE COURT: Did you submit affidavits from them

24 already?

25

MR. MAYOR: We have -- our particular experts I'm not

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1151 Page 18 o1f725

Status Conf.

4/23/2020

1 sure how much they spoke to the definition. There are a number

2 of experts around the country cited in our complaint who speak

3 to it, but we can -- I believe that Dr. Loring actually does

4 speak to our definition, our expert, Dr. Loring. I apologize.

5 In any event, we're happy to submit, you know, a short brief on

6 that subject.

7

THE COURT: Good.

8

MR. MAYOR: I don't think it would probably require

9 extensive additional work. The primary concern I would have

10 about it for the moment is ensuring that we correctly

11 understand your Honor's order and the jail correctly

12 understands your Honor's order that the list they are compiling

13 is the list that is consistent with our subclass and then if we

14 have to fight about whether or not everybody should be in our

15 subclass or not, we can do that, but you'll have the list of

16 people regardless of which definition you choose.

17

THE COURT: Okay. Mr. Potter, you're on board with

18 filing something to support your reasoning for the definition

19 that you want to have advanced?

20

MR. POTTER: Yes, it's pretty much going to be the

21 CDC guidelines, Judge, and there was an agreement -- I'm going

22 to let Mr. D'Agastino speak to this, so we -- that we -- our

23 side and Mr. Mayor are on the same page because he's been

24 dealing with the jail on the medically vulnerable list.

25

MR. DeAGOSTINO: Your Honor, there is this

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1152 Page 19 o1f825

Status Conf.

4/23/2020

1 suggestion -- Tom Deagastino for the court reporter.

2

Early on, you asked us to put together a stipulated

3 agreement, and ultimately we did, and we did have a

4 conversation with you in a conference call, and one of those

5 issues dealt with the definition of medically vulnerable

6 individuals. That was Paragraph D.

7

THE COURT: Of stipulation?

8

MR. DeAGOSTINO: Of the stipulation. Now, you --

9 that wasn't included in the stipulation. You told us you

10 didn't want to deal with it at that time, pretty much for the

11 same reasons you didn't want to deal with it today, but I want

12 to be sure that when we see them -- when we're hearing from the

13 Plaintiffs' counsel about any disputes, we're talking about the

14 disputes of the medical -- of the definition of medically

15 vulnerable individuals that we worked out, and in that previous

16 document that we filed with the Court that has the Plaintiff's

17 contentions and Defendant's contentions, and those are the only

18 areas of dispute that I'm aware of as we stand here today. If

19 they're going back to the very beginning to something that was

20 in the complaint and they want to throw out what they've

21 previously said to you, then we're going to have to start all

22 over again.

23

THE COURT: All right. Mr. Mayor, can you clarify

24 that?

25

MR. MAYOR: Of course. Yeah, I don't -- we're not

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1153 Page 20 o1f925

Status Conf.

4/23/2020

1 going back to anything. I believe that what we submitted to

2 your Honor reflected what we already said in the subclass

3 definition. Correct me if you think I'm wrong, Mr. DeAgostino,

4 but I believe that everything that we indicated was in dispute

5 was the things that we put in the medically vulnerable subclass

6 that you did not agree was medically vulnerable. So I don't --

7 I don't think there's anything that our complaint calls

8 medically vulnerable that is not called out as something we

9 think is medically vulnerable in the draft stipulation that we

10 submitted to the Court. So I'm not trying to go back on

11 anything, just so -- I hope that clarifies things. I'm not

12 trying to trick anybody.

13

MR. POTTER: This is Mr. Potter. We're going to use

14 the prior agreed-to language that was in the stipulation that

15 we originally filed that we took out per the Judge instruction,

16 and that contains our position, your position. That's the one

17 we've been using.

18

MR. MAYOR: That's fine. As long as you're telling

19 me that you are identifying the individuals who we think are

20 medically vulnerable and you don't in your list, so that the

21 Court will have that list when we need it.

22

MR. POTTER: I believe that's what's happening, yes.

23

THE COURT: Okay. That's good. Okay. Very good.

24 When could we expect to get the report from the inspector,

25 Mr. Mayor?

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1154 Page 21 o2f025

Status Conf.

4/23/2020

1

MR. MAYOR: I believe an order provided that it was

2 due to the Court by Monday the 27th, and I haven't heard

3 anything from the inspector to indicate that that would be a

4 problem for him. I'll double check with him.

5

THE COURT: Okay. Good. All right. I am -- and the

6 issue that you raised here about expedited discovery, that too

7 should await a decision on the -- you know, from the briefing,

8 okay. You know I'm being consistent. I'm just going to deal

9 with these issues once the jurisdiction issue has been ruled on

10 by me. Okay?

11

MR. MAYOR: Understood, your Honor.

12

MR. POTTER: Yes.

13

THE COURT: Okay. Is there anything else that we

14 need to talk about? I know that I still -- I'm going to be

15 issuing a ruling today on the motion for reconsideration just

16 to keep everything nice and clean here. So that's forthcoming.

17 Won't be any surprises in there I'm certain.

18

Is there anything else that anyone would like to

19 raise at this point, Mr. Mayor, on behalf of the Plaintiff?

20

MR. MAYOR: No, I don't think we have anything

21 further, your Honor. Thank you.

22

THE COURT: Okay. Mr. Potter?

23

MR. POTTER: Yes, I have a short item, your Honor,

24 and it's very painful for me to ask you this, but my son is

25 sitting here and he passed the bar last night, and it's painful

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1155 Page 22 o2f125

Status Conf.

4/23/2020

1 for me because I spent my entire life trying to dissuade him

2 from being a lawyer. So -- and he's got a big grin on his face

3 here, but yes, he passed last night.

4

THE COURT: Congratulations.

5

MR. POTTER: Thank you, Judge. And there was some

6 talk about, I thought from Richard, when the Plaintiffs are

7 talking about pro hoc vice lawyers, are you amenable, Judge, to

8 doing the swear -- telephonic swearing in for him so I can

9 increase his hourly rate on this file as soon as possible?

10

THE COURT: Can I do that, Richard?

11

THE CLERK: Should we go off the record, Judge?

12

THE COURT: You and I?

13

THE CLERK: I meant do you want to have this on the

14 record?

15

THE COURT: Yes. No, we don't have to put this on

16 the record. You know what, we can -- let me just deal with

17 this. For the --

18

THE CLERK: Judge, to answer your question.

19

THE COURT: Go ahead, Richard.

20

THE CLERK: We can do it if he has submitted his

21 application and everything already to the clerk's office. So

22 if he hasn't done that, then we can't swear him in.

23

MR. POTTER: To the clerk of your Court, you mean,

24 right, Richard, the Eastern District clerk?

25

THE CLERK: Right.

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1156 Page 23 o2f225

Status Conf.

4/23/2020

1

MR. POTTER: We'll get on that, and thank you for not

2 yelling at me for my tongue-in-cheek humor, Judge.

3

THE COURT: No problem, and when you've done that,

4 you can reach out to Richard and I can do that over the phone

5 if you're serious about me doing that.

6

MR. POTTER: I am serious about doing it, and I was

7 not serious about increasing the hourly rate.

8

THE COURT: No. I knew that, yeah. Okay. All

9 right.

10

MR. POTTER: Thank you, Judge.

11

THE COURT: Okay. All right. So we're -- and

12 Mr. Mayor, your colleagues who you need to have sworn in, where

13 are you -- this is in the event that we need the oral argument,

14 right?

15

MR. MAYOR: Right. So two of them have actually

16 already been sworn in by the clerk's office. I believe

17 Mr. Loury pointed out that we could do it that way, and the

18 third I believe is it still awaiting his certificate of good

19 standing from his home court. So until he gets that he won't

20 be able to be formally sworn in.

21

THE COURT: Okay. Fair enough. All right. Well, I

22 think this concludes the call. If there's anything that pops

23 up, please feel free to reach out to Richard. If we need to

24 reconvene -- do we need to schedule -- the briefs are due by

25 Monday? Everything should be fully briefed by Monday, am I

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1157 Page 24 o2f325

Status Conf.

4/23/2020

1 right? I don't have anything in front of me.

2

MR. POTTER: Ours will be filed today and theirs are

3 due Monday. And you're going -- you told us that to only file

4 a reply if you ask us for a reply.

5

THE COURT: Right, that is true. Okay. All right.

6 Well, watch your e-mails from Richard. If I need to speak with

7 you -- as to when I would want us to speak again, okay. He'll

8 probably shoot you something on Monday after I've reviewed

9 everything, okay.

10

MR. POTTER: Thank you, Judge.

11

MR. MAYOR: Thank you, your Honor.

12

THE COURT: All right. Thank you everyone. Take

13 care.

14

(Proceedings concluded 1:32 p.m.)

15

- - -

16

17

C E R T I F I C A T I O N

18

I, Andrea E. Wabeke, official court reporter for the

19 United States District Court, Eastern District of Michigan,

20 Southern Division, appointed pursuant to the provisions of

21 Title 28, United States Code, Section 753, do hereby certify

22 that the foregoing is a correct transcript of the proceedings

23 in the above-entitled cause on the date hereinbefore set forth.

24 I do further certify that the foregoing transcript has been

25 prepared by me or under my direction.

Cameron v Bouchard, et.al., Case No. 20-10949

Case 2:20-cv-10949-LVP-MJH ECF No. 33-4 filed 04/27/20 PageID.1158 Page 25 o2f425

Status Conf.

4/23/2020

1 2 /s/Andrea E. Wabeke 3 Official Court Reporter
RMR, CRR, CSR 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

- - -

April 24, 2020 Date

Cameron v Bouchard, et.al., Case No. 20-10949

4/27/2020

Case 2:20-cv-10949-LVP-MJH ECF NSooci.al3D3is-ta5ncinfgil,eQdua0ra4nt/in2e7, a/2nd0IsolaPtioangeID.1159 Page 1 of 37

Coronavirus Disease 2019

Social Distancing, Quarantine, and Isolation
Keep Your Distance to Slow the Spread
Limiting face-to-face contact with others is the best way to reduce the spread of coronavirus disease 2019 (COVID-19).

What is social distancing?
Social distancing, also called “physical distancing,” means keeping space between yourself and other people outside of your home. To practice social or physical distancing:
Stay at least 6 feet (2 meters) from other people Do not gather in groups Stay out of crowded places and avoid mass gatherings
In addition to everyday steps to prevent COVID-19, keeping space between you and others is one of the best tools we have to avoid being exposed to this virus and slowing its spread locally and across the country and world.
When COVID-19 is spreading in your area, everyone should limit close contact with individuals outside your household in indoor and outdoor spaces. Since people can spread the virus before they know they are sick, it is important to stay away from others when possible, even if you have no symptoms. Social distancing is especially important for people who are at higher risk of getting very sick.

Why practice social distancing?
COVID-19 spreads mainly among people who are in close contact (within about 6 feet) for a prolonged period. Spread happens when an infected person coughs, sneezes, or talks, and droplets from their mouth or nose are launched into the air and land in the mouths or noses of people nearby. The droplets can also be inhaled into the lungs. Recent studies indicate that people who are infected but do not have symptoms likely also play a role in the spread of COVID-19.
It may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or eyes. However, this is not thought to be the main way the virus spreads. COVID-19 can live for hours or days on a surface, depending on factors such as sun light and humidity. Social distancing helps limit contact with infected people and contaminated surfaces.
Although the risk of severe illness may be di erent for everyone, anyone can get and spread COVID-19. Everyone has a role to play in slowing the spread and protecting themselves, their family, and their community.

Tips for social distancing
Follow guidance from authorities where you live. If you need to shop for food or medicine at the grocery store or pharmacy, stay at least 6 feet away from others.
Use mail-order for medications, if possible. Consider a grocery delivery service. Cover your mouth and nose with a cloth face cover when around others, including when you have to go out in public, for example to the grocery store.
Stay at least 6 feet between yourself and others, even when you wear a face covering.
Avoid large and small gatherings in private places and public spaces, such a friend’s house, parks, restaurants, shops, or any other place. This advice applies to people of any age, including teens and younger adults. Children should not

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html

1/3

4/27/2020

Case 2:20-cv-10949-LVP-MJH ECF NSooci.al3D3is-ta5ncinfgil,eQdua0ra4nt/in2e7, a/2nd0IsolaPtioangeID.1160 Page 2 of 37

have in-person playdates while school is out. To help maintain social connections while social distancing, learn tips to keep children healthy while school’s out. Work from home when possible. If possible, avoid using any kind of public transportation, ridesharing, or taxis. If you are a student or parent, talk to your school about options for digital/distance learning.
Stay connected while staying away. It is very important to stay in touch with friends and family that don’t live in your home. Call, video chat, or stay connected using social media. Everyone reacts di erently to stressful situations and having to socially distance yourself from someone you love can be di cult. Read tips for stress and coping.
What is the di erence between quarantine and isolation?

Quarantine
Quarantine is used to keep someone who might have been exposed to COVID-19 away from others. Someone in selfquarantine stays separated from others, and they limit movement outside of their home or current place. A person may have been exposed to the virus without knowing it (for example, when traveling or out in the community), or they could have the virus without feeling symptoms. Quarantine helps limit further spread of COVID-19.
Isolation
Isolation is used to separate sick people from healthy people. People who are in isolation should stay home. In the home, anyone sick should separate themselves from others by staying in a speci c “sick” bedroom or space and using a di erent bathroom (if possible).
What should I do if I might have been exposed? If I feel sick? Or have con rmed COVID-19?
If you think you have been exposed to COVID-19, read about symptoms.
If you…
If you or someone in your home might have been exposed
Steps to take…
Self-Monitor
Be alert for symptoms. Watch for fever,* cough, or shortness of breath.
Take your temperature if symptoms develop. Practice social distancing. Maintain 6 feet of distance from others, and stay out of crowded places. Follow CDC guidance if symptoms develop.

If you…
If you feel healthy but:
Recently had close contact with a person with COVID-19, or Recently traveled from somewhere outside the U.S. or on a cruise ship or river boat

Steps to take…
Self-Quarantine

Check your temperature twice a day and watch for symptoms

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html

2/3

4/27/2020

Case 2:20-cv-10949-LVP-MJH ECF NSooci.al3D3is-ta5ncinfgil,eQdua0ra4nt/in2e7, a/2nd0IsolaPtioangeID.1161 Page 3 of 37 Check your temperature twice a day and watch for symptoms. Stay home for 14 days and self-monitor. If possible, stay away from people who are high-risk for getting very sick from COVID-19.

If you…
If you:
Have been diagnosed with COVID-19, or Are waiting for test results, or Have symptoms such as cough, fever, or shortness of breath

Steps to take…
Self-Isolate
Stay in a speci c “sick room” or area and away from other people or animals, including pets. If possible, use a separate bathroom. Read important information about caring for yourself or someone else who is sick.

More Information
How to Protect Yourself Cleaning and Disinfecting Your Home Gatherings and Community Events

Page last reviewed: April 4, 2020

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html

3/3

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1162 Page 4 of 37
March 24, 2020
Open letter to the American public:
Physicians, nurses and our entire medical community are urging all people to stay at home. We are honored to serve and put our lives on the front line to protect and save as many lives as possible. But we need your help.
Physical distancing and staying at home are the key to slowing the spread of 2019 novel coronavirus (COVID-19) to give physicians, nurses and everyone on the front lines a fighting chance at having the equipment, time and resources necessary to take on this immense challenge. Those contracting COVID-19 are your family, friends, and loved ones.
That’s why we’re urging the public to #StayHome as we reach the critical stages of our national response to COVID-19. Of course, those with urgent medical needs, including pregnant women, should seek care as needed. Everyone else should #StayHome.
Millions of you are already leading this effort – and we thank you. You’re still connecting with friends and loved ones through video chats, social media or just over the telephone - proving that meaningful social connections can happen at a safe distance. Millions more must join this effort, which is why we’re calling for all-hands-on-deck to confront this public health battle against COVID-19.
Staying at home in this urgent moment is our best defense to turn the tide against COVID-19. Physicians, nurses and health care workers are staying at work for you. Please stay at home for us.
Your partners in health,
American Hospital Association American Medical Association American Nurses Association

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1163 Page 5 of 37
Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities

This interim guidance is based on what is currently known about the transmission and severity of coronavirus disease 2019 (COVID-19) as of March 23, 2020.
The US Centers for Disease Control and Prevention (CDC) will update this guidance as needed and as additional information becomes available. Please check the following CDC website periodically for updated interim guidance: https://www.cdc.gov/coronavirus/2019-ncov/index.html.
This document provides interim guidance specific for correctional facilities and detention centers during the outbreak of COVID-19, to ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff, and visitors. Recommendations may need to be revised as more information becomes available.

In this guidance
• Who is the intended audience for this guidance?
• Why is this guidance being issued?
• What topics does this guidance include?
• Definitions of Commonly Used Terms
• Facilities with Limited Onsite Healthcare Services
• COVID-19 Guidance for Correctional Facilities
• Operational Preparedness
• Prevention
• Management
• Infection Control
• Clinical Care of COVID-19 Cases
• Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
• Verbal Screening and Temperature Check Protocols for Incarcerated/ Detained Persons, Staff, and Visitors

Who is the intended audience for this guidance?
This document is intended to provide guiding principles for healthcare and non-healthcare administrators of correctional and detention facilities (including but not limited to federal and state prisons, local jails, and detention centers), law enforcement agencies that have custodial authority for detained populations (i.e., US Immigration and Customs Enforcement and US Marshals Service), and their respective health departments, to assist in preparing for potential introduction, spread, and mitigation of COVID-19 in their facilities. In general, the document uses terminology referring to correctional environments but can also be applied to civil and pre-trial detention settings.
This guidance will not necessarily address every possible custodial setting and may not use legal terminology specific to individual agencies’ authorities or processes. The guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions. Facilities should contact CDC or their state, local, territorial, and/or tribal public health department if they need assistance in applying these principles or addressing topics that are not specifically covered in this guidance.

CS 316182-A  03/27/2020

cdc.gov/coronavirus

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1164 Page 6 of 37
Why is this guidance being issued?
Correctional and detention facilities can include custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting. The integration of these components presents unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors. Consistent application of specific preparation, prevention, and management measures can help reduce the risk of transmission and severe disease from COVID-19.
• Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.
• In most cases, incarcerated/detained persons are not permitted to leave the facility.
• There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.
• Persons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas.
• Options for medical isolation of COVID-19 cases are limited and vary depending on the type and size of facility, as well as the current level of available capacity, which is partly based on medical isolation needs for other conditions.
• Adequate levels of custody and healthcare staffing must be maintained to ensure safe operation of the facility, and options to practice social distancing through work alternatives such as working from home or reduced/alternate schedules are limited for many staff roles.
• Correctional and detention facilities can be complex, multi-employer settings that include government and private employers. Each is organizationally distinct and responsible for its own operational, personnel, and occupational health protocols and may be prohibited from issuing guidance or providing services to other employers or their staff within the same setting. Similarly, correctional and detention facilities may house individuals from multiple law enforcement agencies or jurisdictions subject to different policies and procedures.
• Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19.
• Because limited outside information is available to many incarcerated/detained persons, unease and misinformation regarding the potential for COVID-19 spread may be high, potentially creating security and morale challenges.
• The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and is determined by the supplies provided in the facility and by security considerations. Many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants.
• Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation.
CDC has issued separate COVID-19 guidance addressing healthcare infection control and clinical care of COVID-19 cases as well as close contacts of cases in community-based settings. Where relevant, community-focused guidance documents are referenced in this document and should be monitored regularly for updates, but they may require adaptation for correctional and detention settings.
2

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1165 Page 7 of 37
This guidance document provides additional recommended best practices specifically for correctional and detention facilities. At this time, different facility types (e.g., prison vs. jail) and sizes are not differentiated. Administrators and agencies should adapt these guiding principles to the specific needs of their facility.
What topics does this guidance include?
The guidance below includes detailed recommendations on the following topics related to COVID-19 in correctional and detention settings:
√ Operational and communications preparations for COVID-19
√ Enhanced cleaning/disinfecting and hygiene practices
√ Social distancing strategies to increase space between individuals in the facility
√ How to limit transmission from visitors
√ Infection control, including recommended personal protective equipment (PPE) and potential alternatives during PPE shortages
√ Verbal screening and temperature check protocols for incoming incarcerated/detained individuals, staff, and visitors
√ Medical isolation of confirmed and suspected cases and quarantine of contacts, including considerations for cohorting when individual spaces are limited
√ Healthcare evaluation for suspected cases, including testing for COVID-19
√ Clinical care for confirmed and suspected cases
√ Considerations for persons at higher risk of severe disease from COVID-19
Definitions of Commonly Used Terms
Close contact of a COVID-19 case—In the context of COVID-19, an individual is considered a close contact if they a) have been within approximately 6 feet of a COVID-19 case for a prolonged period of time or b) have had direct contact with infectious secretions from a COVID-19 case (e.g., have been coughed on). Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
Cohorting—Cohorting refers to the practice of isolating multiple laboratory-confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group. Ideally, cases should be isolated individually, and close contacts should be quarantined individually. However, some correctional facilities and detention centers do not have enough individual cells to do so and must consider cohorting as an alternative. See Quarantine and Medical Isolation sections below for specific details about ways to implement cohorting to minimize the risk of disease spread and adverse health outcomes.
Community transmission of COVID-19—Community transmission of COVID-19 occurs when individuals acquire the disease through contact with someone in their local community, rather than through travel to an affected location. Once community transmission is identified in a particular area, correctional facilities and detention centers are more likely to start seeing cases inside their walls. Facilities should consult with local public health departments if assistance is needed in determining how to define “local community” in the context of COVID-19 spread. However, because all states have reported cases, all facilities should be vigilant for introduction into their populations.
3

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1166 Page 8 of 37
Confirmed vs. Suspected COVID-19 case—A confirmed case has received a positive result from a COVID-19 laboratory test, with or without symptoms. A suspected case shows symptoms of COVID-19 but either has not been tested or is awaiting test results. If test results are positive, a suspected case becomes a confirmed case.
Incarcerated/detained persons—For the purpose of this document, “incarcerated/detained persons” refers to persons held in a prison, jail, detention center, or other custodial setting where these guidelines are generally applicable. The term includes those who have been sentenced (i.e., in prisons) as well as those held for pre-trial (i.e., jails) or civil purposes (i.e, detention centers). Although this guidance does not specifically reference individuals in every type of custodial setting (e.g., juvenile facilities, community confinement facilities), facility administrators can adapt this guidance to apply to their specific circumstances as needed.
Medical Isolation—Medical isolation refers to confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission. Medical isolation ends when the individual meets pre-established clinical and/or testing criteria for release from isolation, in consultation with clinical providers and public health officials (detailed in guidance below). In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Staff are encouraged to use the term “medical isolation” to avoid confusion.
Quarantine—Quarantine refers to the practice of confining individuals who have had close contact with a COVID-19 case to determine whether they develop symptoms of the disease. Quarantine for COVID-19 should last for a period of 14 days. Ideally, each quarantined individual would be quarantined in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, the individual should be placed under medical isolation and evaluated for COVID-19. If symptoms do not develop, movement restrictions can be lifted, and the individual can return to their previous residency status within the facility.
Social Distancing—Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19. Additional information about social distancing, including information on its use to reduce the spread of other viral illnesses, is available in this CDC publication.
Staff—In this document, “staff” refers to all public sector employees as well as those working for a private contractor within a correctional facility (e.g., private healthcare or food service). Except where noted, “staff” does not distinguish between healthcare, custody, and other types of staff including private facility operators.
Symptoms—Symptoms of COVID-19 include fever, cough, and shortness of breath. Like other respiratory infections, COVID-19 can vary in severity from mild to severe. When severe, pneumonia, respiratory failure, and death are possible. COVID-19 is a novel disease, therefore the full range of signs and symptoms, the clinical course of the disease, and the individuals and populations most at risk for disease and complications are not yet fully understood. Monitor the CDC website for updates on these topics.
Facilities with Limited Onsite Healthcare Services
Although many large facilities such as prisons and some jails usually employ onsite healthcare staff and have the capacity to evaluate incarcerated/detained persons for potential illness within a dedicated healthcare space, many smaller facilities do not. Some of these facilities have access to on-call healthcare staff or providers who visit the facility every few days. Others have neither onsite healthcare capacity nor onsite medical isolation/quarantine space and must transfer ill patients to other correctional or detention facilities or local hospitals for evaluation and care.
4

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1167 Page 9 of 37
The majority of the guidance below is designed to be applied to any correctional or detention facility, either as written or with modifications based on a facility’s individual structure and resources. However, topics related to healthcare evaluation and clinical care of confirmed and suspected COVID-19 cases and their close contacts may not apply directly to facilities with limited or no onsite healthcare services. It will be especially important for these types of facilities to coordinate closely with their state, local, tribal, and/or territorial health department when they encounter confirmed or suspected cases among incarcerated/detained persons or staff, in order to ensure effective medical isolation and quarantine, necessary medical evaluation and care, and medical transfer if needed. The guidance makes note of strategies tailored to facilities without onsite healthcare where possible.
Note that all staff in any sized facility, regardless of the presence of onsite healthcare services, should observe guidance on recommended PPE in order to ensure their own safety when interacting with confirmed and suspected COVID-19 cases. Facilities should make contingency plans for the likely event of PPE shortages during the COVID-19 pandemic.
COVID-19 Guidance for Correctional Facilities
Guidance for correctional and detention facilities is organized into 3 sections: Operational Preparedness, Prevention, and Management of COVID-19. Recommendations across these sections can be applied simultaneously based on the progress of the outbreak in a particular facility and the surrounding community.
• Operational Preparedness. This guidance is intended to help facilities prepare for potential COVID-19 transmission in the facility. Strategies focus on operational and communications planning and personnel practices.
• Prevention. This guidance is intended to help facilities prevent spread of COVID-19 from outside the facility to inside. Strategies focus on reinforcing hygiene practices, intensifying cleaning and disinfection of the facility, screening (new intakes, visitors, and staff), continued communication with incarcerated/ detained persons and staff, and social distancing measures (increasing distance between individuals).
• Management. This guidance is intended to help facilities clinically manage confirmed and suspected COVID-19 cases inside the facility and prevent further transmission. Strategies include medical isolation and care of incarcerated/detained persons with symptoms (including considerations for cohorting), quarantine of cases’ close contacts, restricting movement in and out of the facility, infection control practices for individuals interacting with cases and quarantined contacts or contaminated items, intensified social distancing, and cleaning and disinfecting areas visited by cases.
Operational Preparedness
Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staff and incarcerated/detained persons about these preparations and how they may temporarily alter daily life.
Communication & Coordination
√ Develop information-sharing systems with partners. ο Identify points of contact in relevant state, local, tribal, and/or territorial public health departments before cases develop. Actively engage with the health department to understand in advance which entity has jurisdiction to implement public health control measures for COVID-19 in a particular correctional or detention facility. ο Create and test communications plans to disseminate critical information to incarcerated/detained persons, staff, contractors, vendors, and visitors as the pandemic progresses.
5

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1168 Page 10 of 37
ο Communicate with other correctional facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among staff.
ο Where possible, put plans in place with other jurisdictions to prevent confirmed and suspected COVID-19 cases and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.
ο Stay informed about updates to CDC guidance via the CDC COVID-19 website as more information becomes known.
√ Review existing pandemic flu, all-hazards, and disaster plans, and revise for COVID-19. ο Ensure that physical locations (dedicated housing areas and bathrooms) have been identified to isolate confirmed COVID-19 cases and individuals displaying COVID-19 symptoms, and to quarantine known close contacts of cases. (Medical isolation and quarantine locations should be separate). The plan should include contingencies for multiple locations if numerous cases and/ or contacts are identified and require medical isolation or quarantine simultaneously. See Medical Isolation and Quarantine sections below for details regarding individual medical isolation and quarantine locations (preferred) vs. cohorting. ο Facilities without onsite healthcare capacity should make a plan for how they will ensure that suspected COVID-19 cases will be isolated, evaluated, tested (if indicated), and provided necessary medical care. ο Make a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity. ο Designate officials who will be authorized to make decisions about escalating or de-escalating response efforts as the epidemiologic context changes.
√ Coordinate with local law enforcement and court officials. ο Identify lawful alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of COVID-19 transmission. ο Explore strategies to prevent over-crowding of correctional and detention facilities during a community outbreak.
√ Post signage throughout the facility communicating the following: ο For all: symptoms of COVID-19 and hand hygiene instructions ο For incarcerated/detained persons: report symptoms to staff ο For staff: stay at home when sick; if symptoms develop while on duty, leave the facility as soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms including self-isolating at home, contacting their healthcare provider as soon as possible to determine whether they need to be evaluated and tested, and contacting their supervisor. ο Ensure that signage is understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
Personnel Practices
√ Review the sick leave policies of each employer that operates in the facility. ο Review policies to ensure that they actively encourage staff to stay home when sick. ο If these policies do not encourage staff to stay home when sick, discuss with the contract company. ο Determine which officials will have the authority to send symptomatic staff home.
6

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1169 Page 11 of 37
√ Identify staff whose duties would allow them to work from home. Where possible, allowing staff to work from home can be an effective social distancing strategy to reduce the risk of COVID-19 transmission. ο Discuss work from home options with these staff and determine whether they have the supplies and technological equipment required to do so. ο Put systems in place to implement work from home programs (e.g., time tracking, etc.).
√ Plan for staff absences. Staff should stay home when they are sick, or they may need to stay home to care for a sick household member or care for children in the event of school and childcare dismissals. ο Allow staff to work from home when possible, within the scope of their duties. ο Identify critical job functions and plan for alternative coverage by cross-training staff where possible. ο Determine minimum levels of staff in all categories required for the facility to function safely. If possible, develop a plan to secure additional staff if absenteeism due to COVID-19 threatens to bring staffing to minimum levels. ο Consider increasing keep on person (KOP) medication orders to cover 30 days in case of healthcare staff shortages.
√ Consider offering revised duties to staff who are at higher risk of severe illness with COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions including lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Facility administrators should consult with their occupational health providers to determine whether it would be allowable to reassign duties for specific staff members to reduce their likelihood of exposure to COVID-19.
√ Offer the seasonal influenza vaccine to all incarcerated/detained persons (existing population and new intakes) and staff throughout the influenza season. Symptoms of COVID-19 are similar to those of influenza. Preventing influenza cases in a facility can speed the detection of COVID-19 cases and reduce pressure on healthcare resources.
√ Reference the Occupational Safety and Health Administration website for recommendations regarding worker health.
√ Review CDC’s guidance for businesses and employers to identify any additional strategies the facility can use within its role as an employer.
Operations & Supplies
√ Ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility. ο Standard medical supplies for daily clinic needs ο Tissues ο Liquid soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. ο Hand drying supplies ο Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions) ο Cleaning supplies, including EPA-registered disinfectants effective against the virus that causes COVID-19
7

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1170 Page 12 of 37
ο Recommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls). See PPE section and Table 1 for more detailed information, including recommendations for extending the life of all PPE categories in the event of shortages, and when face masks are acceptable alternatives to N95s.
ο Sterile viral transport media and sterile swabs to collect nasopharyngeal specimens if COVID-19 testing is indicated
√ Make contingency plans for the probable event of PPE shortages during the COVID-19 pandemic, particularly for non-healthcare workers. ο See CDC guidance optimizing PPE supplies.
√ Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow. If soap and water are not available, CDC recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60% alcohol. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty.
√ Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing. (See Hygiene section below for additional detail regarding recommended frequency and protocol for hand washing.) ο Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing.
√ If not already in place, employers operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit tested for any respiratory protection they will need within the scope of their responsibilities.
√ Ensure that staff and incarcerated/detained persons are trained to correctly don, doff, and dispose of PPE that they will need to use within the scope of their responsibilities. See Table 1 for recommended PPE for incarcerated/detained persons and staff with varying levels of contact with COVID-19 cases or their close contacts.
Prevention
Cases of COVID-19 have been documented in all 50 US states. Correctional and detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies.
Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified. Both good hygiene practices and social distancing are critical in preventing further transmission.
Operations
√ Stay in communication with partners about your facility’s current situation. ο State, local, territorial, and/or tribal health departments ο Other correctional facilities
√ Communicate with the public about any changes to facility operations, including visitation programs.
8

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1171 Page 13 of 37
√ Restrict transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding. ο Strongly consider postponing non-urgent outside medical visits. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ Implement lawful alternatives to in-person court appearances where permissible.
√ Where relevant, consider suspending co-pays for incarcerated/detained persons seeking medical evaluation for respiratory symptoms.
√ Limit the number of operational entrances and exits to the facility.
Cleaning and Disinfecting Practices
√ Even if COVID-19 cases have not yet been identified inside the facility or in the surrounding community, begin implementing intensified cleaning and disinfecting procedures according to the recommendations below. These measures may prevent spread of COVID-19 if introduced.
√ Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates. ο Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones). ο Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs). ο Use household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19 as appropriate for the surface, following label instructions. This may require lifting restrictions on undiluted disinfectants. ο Labels contain instructions for safe and effective use of the cleaning product, including precautions that should be taken when applying the product, such as wearing gloves and making sure there is good ventilation during use.
√ Consider increasing the number of staff and/or incarcerated/detained persons trained and responsible for cleaning common areas to ensure continual cleaning of these areas throughout the day.
√ Ensure adequate supplies to support intensified cleaning and disinfection practices, and have a plan in place to restock rapidly if needed.
9

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1172 Page 14 of 37
Hygiene
√ Reinforce healthy hygiene practices, and provide and continually restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms and waiting rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).
√ Encourage all persons in the facility to take the following actions to protect themselves and others from COVID-19. Post signage throughout the facility, and communicate this information verbally on a regular basis. Sample signage and other communications materials are available on the CDC website. Ensure that materials can be understood by non-English speakers and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision. ο Practice good cough etiquette: Cover your mouth and nose with your elbow (or ideally with a tissue) rather than with your hand when you cough or sneeze, and throw all tissues in the trash immediately after use. ο Practice good hand hygiene: Regularly wash your hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing your nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage. ο Avoid touching your eyes, nose, or mouth without cleaning your hands first. ο Avoid sharing eating utensils, dishes, and cups. ο Avoid non-essential physical contact.
√ Provide incarcerated/detained persons and staff no-cost access to: ο Soap—Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin, as this would discourage frequent hand washing. ο Running water, and hand drying machines or disposable paper towels for hand washing ο Tissues and no-touch trash receptacles for disposal
√ Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions. Consider allowing staff to carry individual-sized bottles to maintain hand hygiene.
√ Communicate that sharing drugs and drug preparation equipment can spread COVID-19 due to potential contamination of shared items and close contact between individuals.
Prevention Practices for Incarcerated/Detained Persons
√ Perform pre-intake screening and temperature checks for all new entrants. Screening should take place in the sallyport, before beginning the intake process, in order to identify and immediately place individuals with symptoms under medical isolation. See Screening section below for the wording of screening questions and a recommended procedure to safely perform a temperature check. Staff performing temperature checks should wear recommended PPE (see PPE section below). ο If an individual has symptoms of COVID-19 (fever, cough, shortness of breath):  Require the individual to wear a face mask.  Ensure that staff who have direct contact with the symptomatic individual wear recommended PPE.  Place the individual under medical isolation (ideally in a room near the screening location, rather than transporting the ill individual through the facility), and refer to healthcare staff for further evaluation. (See Infection Control and Clinical Care sections below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care.
10

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1173 Page 15 of 37
ο If an individual is a close contact of a known COVID-19 case (but has no COVID-19 symptoms):  Quarantine the individual and monitor for symptoms two times per day for 14 days. (See Quarantine section below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective quarantine and necessary medical care.
√ Implement social distancing strategies to increase the physical space between incarcerated/ detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms). Strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Not all strategies will be feasible in all facilities. Example strategies with varying levels of intensity include: ο Common areas:  Enforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area) ο Recreation:  Choose recreation spaces where individuals can spread out  Stagger time in recreation spaces  Restrict recreation space usage to a single housing unit per space (where feasible) ο Meals:  Stagger meals  Rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table)  Provide meals inside housing units or cells ο Group activities:  Limit the size of group activities  Increase space between individuals during group activities  Suspend group programs where participants are likely to be in closer contact than they are in their housing environment  Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out ο Housing:  If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.)  Arrange bunks so that individuals sleep head to foot to increase the distance between them  Rearrange scheduled movements to minimize mixing of individuals from different housing areas ο Medical:  If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider staggering sick call.  Designate a room near the intake area to evaluate new entrants who are flagged by the intake screening process for COVID-19 symptoms or case contact, before they move to other parts of the facility.
11

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1174 Page 16 of 37
√ Communicate clearly and frequently with incarcerated/detained persons about changes to their daily routine and how they can contribute to risk reduction.
√ Note that if group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.
√ Consider suspending work release programs and other programs that involve movement of incarcerated/detained individuals in and out of the facility.
√ Provide up-to-date information about COVID-19 to incarcerated/detained persons on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Reminders to report COVID-19 symptoms to staff at the first sign of illness
√ Consider having healthcare staff perform rounds on a regular basis to answer questions about COVID-19.
Prevention Practices for Staff
√ Remind staff to stay at home if they are sick. Ensure that staff are aware that they will not be able to enter the facility if they have symptoms of COVID-19, and that they will be expected to leave the facility as soon as possible if they develop symptoms while on duty.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all staff daily on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο In very small facilities with only a few staff, consider self-monitoring or virtual monitoring (e.g., reporting to a central authority via phone). ο Send staff home who do not clear the screening process, and advise them to follow CDCrecommended steps for persons who are ill with COVID-19 symptoms.
√ Provide staff with up-to-date information about COVID-19 and about facility policies on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Employers’ sick leave policy ο If staff develop a fever, cough, or shortness of breath while at work: immediately put on a face mask, inform supervisor, leave the facility, and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. ο If staff test positive for COVID-19: inform workplace and personal contacts immediately, and do not return to work until a decision to discontinue home medical isolation precautions is made. Monitor CDC guidance on discontinuing home isolation regularly as circumstances evolve rapidly. ο If a staff member is identified as a close contact of a COVID-19 case (either within the facility or in the community): self-quarantine at home for 14 days and return to work if symptoms do not develop. If symptoms do develop, follow CDC-recommended steps for persons who are ill with COVID-19 symptoms.
√ If a staff member has a confirmed COVID-19 infection, the relevant employers should inform other staff about their possible exposure to COVID-19 in the workplace, but should maintain confidentiality as required by the Americans with Disabilities Act. ο Employees who are close contacts of the case should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
12

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1175 Page 17 of 37
√ When feasible and consistent with security priorities, encourage staff to maintain a distance of 6 feet or more from an individual with respiratory symptoms while interviewing, escorting, or interacting in other ways.
√ Ask staff to keep interactions with individuals with respiratory symptoms as brief as possible.
Prevention Practices for Visitors
√ If possible, communicate with potential visitors to discourage contact visits in the interest of their own health and the health of their family members and friends inside the facility.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all visitors and volunteers on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο Staff performing temperature checks should wear recommended PPE. ο Exclude visitors and volunteers who do not clear the screening process or who decline screening.
√ Provide alcohol-based hand sanitizer with at least 60% alcohol in visitor entrances, exits, and waiting areas.
√ Provide visitors and volunteers with information to prepare them for screening. ο Instruct visitors to postpone their visit if they have symptoms of respiratory illness. ο If possible, inform potential visitors and volunteers before they travel to the facility that they should expect to be screened for COVID-19 (including a temperature check), and will be unable to enter the facility if they do not clear the screening process or if they decline screening. ο Display signage outside visiting areas explaining the COVID-19 screening and temperature check process. Ensure that materials are understandable for non-English speakers and those with low literacy.
√ Promote non-contact visits: ο Encourage incarcerated/detained persons to limit contact visits in the interest of their own health and the health of their visitors. ο Consider reducing or temporarily eliminating the cost of phone calls for incarcerated/detained persons. ο Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health and reduce exposure from direct contact with community visitors.
√ Consider suspending or modifying visitation programs, if legally permissible. For example, provide access to virtual visitation options where available. ο If moving to virtual visitation, clean electronic surfaces regularly. (See Cleaning guidance below for instructions on cleaning electronic surfaces.) ο Inform potential visitors of changes to, or suspension of, visitation programs. ο Clearly communicate any visitation program changes to incarcerated/detained persons, along with the reasons for them (including protecting their health and their family and community members’ health). ο If suspending contact visits, provide alternate means (e.g., phone or video visitation) for incarcerated/detained individuals to engage with legal representatives, clergy, and other individuals with whom they have legal right to consult.
NOTE: Suspending visitation would be done in the interest of incarcerated/detained persons’ physical health and the health of the general public. However, visitation is important to maintain mental health.
13

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1176 Page 18 of 37
If visitation is suspended, facilities should explore alternative ways for incarcerated/detained persons to communicate with their families, friends, and other visitors in a way that is not financially burdensome for them. See above suggestions for promoting non-contact visits.
√ Restrict non-essential vendors, volunteers, and tours from entering the facility.
Management
If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing cases and individuals with symptoms under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE.
Operations
√ Implement alternate work arrangements deemed feasible in the Operational Preparedness section.
√ Suspend all transfers of incarcerated/detained persons to and from other jurisdictions and facilities (including work release where relevant), unless necessary for medical evaluation, medical isolation/quarantine, care, extenuating security concerns, or to prevent overcrowding. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to appropriately isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ If possible, consider quarantining all new intakes for 14 days before they enter the facility’s general population (SEPARATELY from other individuals who are quarantined due to contact with a COVID-19 case). Subsequently in this document, this practice is referred to as routine intake quarantine.
√ When possible, arrange lawful alternatives to in-person court appearances.
√ Incorporate screening for COVID-19 symptoms and a temperature check into release planning. ο Screen all releasing individuals for COVID-19 symptoms and perform a temperature check. (See Screening section below.)  If an individual does not clear the screening process, follow the protocol for a suspected COVID-19 case—including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing.  If the individual is released before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care.  Before releasing an incarcerated/detained individual with COVID-19 symptoms to a communitybased facility, such as a homeless shelter, contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
14

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1177 Page 19 of 37
√ Coordinate with state, local, tribal, and/or territorial health departments. ο When a COVID-19 case is suspected, work with public health to determine action. See Medical Isolation section below. ο When a COVID-19 case is suspected or confirmed, work with public health to identify close contacts who should be placed under quarantine. See Quarantine section below. ο Facilities with limited onsite medical isolation, quarantine, and/or healthcare services should coordinate closely with state, local, tribal, and/or territorial health departments when they encounter a confirmed or suspected case, in order to ensure effective medical isolation or quarantine, necessary medical evaluation and care, and medical transfer if needed. See Facilities with Limited Onsite Healthcare Services section.
Hygiene
√ Continue to ensure that hand hygiene supplies are well-stocked in all areas of the facility. (See above.)
√ Continue to emphasize practicing good hand hygiene and cough etiquette. (See above.)
Cleaning and Disinfecting Practices
√ Continue adhering to recommended cleaning and disinfection procedures for the facility at large. (See above.)
√ Reference specific cleaning and disinfection procedures for areas where a COVID-19 case has spent time (below).
Medical Isolation of Confirmed or Suspected COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities with Limited Onsite Healthcare Services, or without sufficient space to implement effective medical isolation, should coordinate with local public health officials to ensure that COVID-19 cases will be appropriately isolated, evaluated, tested (if indicated), and given care.
√ As soon as an individual develops symptoms of COVID-19, they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.
√ Keep the individual’s movement outside the medical isolation space to an absolute minimum. ο Provide medical care to cases inside the medical isolation space. See Infection Control and Clinical Care sections for additional details. ο Serve meals to cases inside the medical isolation space. ο Exclude the individual from all group activities. ο Assign the isolated individual a dedicated bathroom when possible.
√ Ensure that the individual is wearing a face mask at all times when outside of the medical isolation space, and whenever another individual enters. Provide clean masks as needed. Masks should be changed at least daily, and when visibly soiled or wet.
√ Facilities should make every possible effort to place suspected and confirmed COVID-19 cases under medical isolation individually. Each isolated individual should be assigned their own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options.
15

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1178 Page 20 of 37
ο If cohorting is necessary:  Only individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort confirmed cases with suspected cases or case contacts.  Unless no other options exist, do not house COVID-19 cases with individuals who have an undiagnosed respiratory infection.  Ensure that cohorted cases wear face masks at all times.
√ In order of preference, individuals under medical isolation should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above. ο Safely transfer individual(s) to another facility with available medical isolation capacity in one of the above arrangements (NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
If the ideal choice does not exist in a facility, use the next best alternative.
√ If the number of confirmed cases exceeds the number of individual medical isolation spaces available in the facility, be especially mindful of cases who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other infected individuals. If cohorting is unavoidable, make all possible accommodations to prevent transmission of other infectious diseases to the higher-risk individual. (For example, allocate more space for a higher-risk individual within a shared medical isolation space.) ο Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Note that incarcerated/detained populations have higher prevalence of infectious and chronic diseases and are in poorer health than the general population, even at younger ages.
√ Custody staff should be designated to monitor these individuals exclusively where possible. These staff should wear recommended PPE as appropriate for their level of contact with the individual under medical isolation (see PPE section below) and should limit their own movement between different parts of the facility to the extent possible.
√ Minimize transfer of COVID-19 cases between spaces within the healthcare unit.
16

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1179 Page 21 of 37
√ Provide individuals under medical isolation with tissues and, if permissible, a lined no-touch trash receptacle. Instruct them to: ο Cover their mouth and nose with a tissue when they cough or sneeze ο Dispose of used tissues immediately in the lined trash receptacle ο Wash hands immediately with soap and water for at least 20 seconds. If soap and water are not available, clean hands with an alcohol-based hand sanitizer that contains at least 60% alcohol (where security concerns permit). Ensure that hand washing supplies are continually restocked.
√ Maintain medical isolation until all the following criteria have been met. Monitor the CDC website for updates to these criteria.
For individuals who will be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  The individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart
For individuals who will NOT be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  At least 7 days have passed since the first symptoms appeared
For individuals who had a confirmed positive COVID-19 test but never showed symptoms: ο At least 7 days have passed since the date of the individual’s first positive COVID-19 test AND ο The individual has had no subsequent illness
√ Restrict cases from leaving the facility while under medical isolation precautions, unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns. ο If an incarcerated/detained individual who is a COVID-19 case is released from custody during their medical isolation period, contact public health to arrange for safe transport and continuation of necessary medical care and medical isolation as part of release planning.
Cleaning Spaces where COVID-19 Cases Spent Time
Thoroughly clean and disinfect all areas where the confirmed or suspected COVID-19 case spent time. Note—these protocols apply to suspected cases as well as confirmed cases, to ensure adequate disinfection in the event that the suspected case does, in fact, have COVID-19. Refer to the Definitions section for the distinction between confirmed and suspected cases.
ο Close off areas used by the infected individual. If possible, open outside doors and windows to increase air circulation in the area. Wait as long as practical, up to 24 hours under the poorest air exchange conditions (consult CDC Guidelines for Environmental Infection Control in Health-Care Facilities for wait time based on different ventilation conditions), before beginning to clean and disinfect, to minimize potential for exposure to respiratory droplets.
ο Clean and disinfect all areas (e.g., cells, bathrooms, and common areas) used by the infected individual, focusing especially on frequently touched surfaces (see list above in Prevention section).
17

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1180 Page 22 of 37
√ Hard (non-porous) surface cleaning and disinfection ο If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection. ο For disinfection, most common EPA-registered household disinfectants should be effective. Choose cleaning products based on security requirements within the facility.  Consult a list of products that are EPA-approved for use against the virus that causes COVID-19. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, etc.).  Diluted household bleach solutions can be used if appropriate for the surface. Follow the manufacturer’s instructions for application and proper ventilation, and check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted. Prepare a bleach solution by mixing:
- 5 tablespoons (1/3rd cup) bleach per gallon of water or
- 4 teaspoons bleach per quart of water
√ Soft (porous) surface cleaning and disinfection ο For soft (porous) surfaces such as carpeted floors and rugs, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning:  If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely.  Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 and are suitable for porous surfaces.
√ Electronics cleaning and disinfection ο For electronics such as tablets, touch screens, keyboards, and remote controls, remove visible contamination if present.  Follow the manufacturer’s instructions for all cleaning and disinfection products.  Consider use of wipeable covers for electronics.  If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Additional information on cleaning and disinfection of communal facilities such can be found on CDC’s website.
√ Ensure that staff and incarcerated/detained persons performing cleaning wear recommended PPE. (See PPE section below.)
√ Food service items. Cases under medical isolation should throw disposable food service items in the trash in their medical isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from a COVID-19 cases can be washed with other individuals’ laundry. ο Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
18

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1181 Page 23 of 37
ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
√ Consult cleaning recommendations above to ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case.
Quarantining Close Contacts of COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity, or without sufficient space to implement effective quarantine, should coordinate with local public health officials to ensure that close contacts of COVID-19 cases will be effectively quarantined and medically monitored.
√ Incarcerated/detained persons who are close contacts of a confirmed or suspected COVID-19 case (whether the case is another incarcerated/detained person, staff member, or visitor) should be placed under quarantine for 14 days (see CDC guidelines). ο If an individual is quarantined due to contact with a suspected case who is subsequently tested for COVID-19 and receives a negative result, the quarantined individual should be released from quarantine restrictions.
√ In the context of COVID-19, an individual (incarcerated/detained person or staff) is considered a close contact if they: ο Have been within approximately 6 feet of a COVID-19 case for a prolonged period of time OR ο Have had direct contact with infectious secretions of a COVID-19 case (e.g., have been coughed on)
Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
√ Keep a quarantined individual’s movement outside the quarantine space to an absolute minimum. ο Provide medical evaluation and care inside or near the quarantine space when possible. ο Serve meals inside the quarantine space. ο Exclude the quarantined individual from all group activities. ο Assign the quarantined individual a dedicated bathroom when possible.
√ Facilities should make every possible effort to quarantine close contacts of COVID-19 cases individually. Cohorting multiple quarantined close contacts of a COVID-19 case could transmit COVID-19 from those who are infected to those who are uninfected. Cohorting should only be practiced if there are no other available options. ο If cohorting of close contacts under quarantine is absolutely necessary, symptoms of all individuals should be monitored closely, and individuals with symptoms of COVID-19 should be placed under medical isolation immediately. ο If an entire housing unit is under quarantine due to contact with a case from the same housing unit, the entire housing unit may need to be treated as a cohort and quarantine in place. ο Some facilities may choose to quarantine all new intakes for 14 days before moving them to the facility’s general population as a general rule (not because they were exposed to a COVID-19 case). Under this scenario, avoid mixing individuals quarantined due to exposure to a COVID-19 case with individuals undergoing routine intake quarantine.
19

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1182 Page 24 of 37
ο If at all possible, do not add more individuals to an existing quarantine cohort after the 14-day quarantine clock has started.
√ If the number of quarantined individuals exceeds the number of individual quarantine spaces available in the facility, be especially mindful of those who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other quarantined individuals. If cohorting is unavoidable, make all possible accommodations to reduce exposure risk for the higher-risk individuals. (For example, intensify social distancing strategies for higher-risk individuals.)
√ In order of preference, multiple quarantined individuals should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls, a solid door that closes fully, and at least 6 feet of personal space assigned to each individual in all directions ο As a cohort, in a large, well-ventilated cell with solid walls and at least 6 feet of personal space assigned to each individual in all directions, but without a solid door ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells creating at least 6 feet of space between individuals. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section to maintain at least 6 feet of space between individuals housed in the same cell. ο As a cohort, in individuals’ regularly assigned housing unit but with no movement outside the unit (if an entire housing unit has been exposed). Employ social distancing strategies related to housing in the Prevention section above to maintain at least 6 feet of space between individuals. ο Safely transfer to another facility with capacity to quarantine in one of the above arrangements
(NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
√ Quarantined individuals should wear face masks if feasible based on local supply, as source control, under the following circumstances (see PPE section and Table 1): ο If cohorted, quarantined individuals should wear face masks at all times (to prevent transmission from infected to uninfected individuals). ο If quarantined separately, individuals should wear face masks whenever a non-quarantined individual enters the quarantine space. ο All quarantined individuals should wear a face mask if they must leave the quarantine space for any reason. ο Asymptomatic individuals under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear face masks.
√ Staff who have close contact with quarantined individuals should wear recommended PPE if feasible based on local supply, feasibility, and safety within the scope of their duties (see PPE section and Table 1). ο Staff supervising asymptomatic incarcerated/detained persons under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear PPE.
20

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1183 Page 25 of 37
√ Quarantined individuals should be monitored for COVID-19 symptoms twice per day, including temperature checks. ο If an individual develops symptoms, they should be moved to medical isolation immediately and further evaluated. (See Medical Isolation section above.) ο See Screening section for a procedure to perform temperature checks safely on asymptomatic close contacts of COVID-19 cases.
√ If an individual who is part of a quarantined cohort becomes symptomatic: ο If the individual is tested for COVID-19 and tests positive: the 14-day quarantine clock for the remainder of the cohort must be reset to 0. ο If the individual is tested for COVID-19 and tests negative: the 14-day quarantine clock for this individual and the remainder of the cohort does not need to be reset. This individual can return from medical isolation to the quarantined cohort for the remainder of the quarantine period. ο If the individual is not tested for COVID-19: the 14-day quarantine clock for the remainder of the cohort must be reset to 0.
√ Restrict quarantined individuals from leaving the facility (including transfers to other facilities) during the 14-day quarantine period, unless released from custody or a transfer is necessary for medical care, infection control, lack of quarantine space, or extenuating security concerns.
√ Quarantined individuals can be released from quarantine restrictions if they have not developed symptoms during the 14-day quarantine period.
√ Meals should be provided to quarantined individuals in their quarantine spaces. Individuals under quarantine should throw disposable food service items in the trash. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from quarantined individuals can be washed with other individuals’ laundry. ο Individuals handling laundry from quarantined persons should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
Management of Incarcerated/Detained Persons with COVID-19 Symptoms
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity or without sufficient space for medical isolation should coordinate with local public health officials to ensure that suspected COVID-19 cases will be effectively isolated, evaluated, tested (if indicated), and given care.
√ If possible, designate a room near each housing unit for healthcare staff to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Incarcerated/detained individuals with COVID-19 symptoms should wear a face mask and should be placed under medical isolation immediately. Discontinue the use of a face mask if it inhibits breathing. See Medical Isolation section above.
21

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1184 Page 26 of 37
√ Medical staff should evaluate symptomatic individuals to determine whether COVID-19 testing is indicated. Refer to CDC guidelines for information on evaluation and testing. See Infection Control and Clinical Care sections below as well.
√ If testing is indicated (or if medical staff need clarification on when testing is indicated), contact the state, local, tribal, and/or territorial health department. Work with public health or private labs as available to access testing supplies or services. ο If the COVID-19 test is positive, continue medical isolation. (See Medical Isolation section above.) ο If the COVID-19 test is negative, return the individual to their prior housing assignment unless they require further medical assessment or care.
Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms
√ Provide clear information to incarcerated/detained persons about the presence of COVID-19 cases within the facility, and the need to increase social distancing and maintain hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19. ο Ensure that information is provided in a manner that can be understood by non-English speaking individuals and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
√ Implement daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that incarcerated/detained individuals are not notifying staff of symptoms. See Screening section for a procedure to safely perform a temperature check.
√ Consider additional options to intensify social distancing within the facility.
Management Strategies for Staff
√ Provide clear information to staff about the presence of COVID-19 cases within the facility, and the need to enforce social distancing and encourage hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19 from staff.
√ Staff identified as close contacts of a COVID-19 case should self-quarantine at home for 14 days and may return to work if symptoms do not develop. ο See above for definition of a close contact. ο Refer to CDC guidelines for further recommendations regarding home quarantine for staff.
Infection Control
Infection control guidance below is applicable to all types of correctional facilities. Individual facilities should assess their unique needs based on the types of exposure staff and incarcerated/ detained persons may have with confirmed or suspected COVID-19 cases.
√ All individuals who have the potential for direct or indirect exposure to COVID-19 cases or infectious materials (including body substances; contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air) should follow infection control practices outlined in the CDC Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. Monitor these guidelines regularly for updates.
22

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1185 Page 27 of 37
ο Implement the above guidance as fully as possible within the correctional/detention context. Some of the specific language may not apply directly to healthcare settings within correctional facilities and detention centers, or to facilities without onsite healthcare capacity, and may need to be adapted to reflect facility operations and custody needs.
ο Note that these recommendations apply to staff as well as to incarcerated/detained individuals who may come in contact with contaminated materials during the course of their work placement in the facility (e.g., cleaning).
√ Staff should exercise caution when in contact with individuals showing symptoms of a respiratory infection. Contact should be minimized to the extent possible until the infected individual is wearing a face mask. If COVID-19 is suspected, staff should wear recommended PPE (see PPE section).
√ Refer to PPE section to determine recommended PPE for individuals persons in contact with confirmed COVID-19 cases, contacts, and potentially contaminated items.
Clinical Care of COVID-19 Cases
√ Facilities should ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms. ο If a facility is not able to provide such evaluation and treatment, a plan should be in place to safely transfer the individual to another facility or local hospital. ο The initial medical evaluation should determine whether a symptomatic individual is at higher risk for severe illness from COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.
√ Staff evaluating and providing care for confirmed or suspected COVID-19 cases should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations.
√ Healthcare staff should evaluate persons with respiratory symptoms or contact with a COVID-19 case in a separate room, with the door closed if possible, while wearing recommended PPE and ensuring that the suspected case is wearing a face mask. ο If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Clinicians are strongly encouraged to test for other causes of respiratory illness (e.g., influenza).
√ The facility should have a plan in place to safely transfer persons with severe illness from COVID-19 to a local hospital if they require care beyond what the facility is able to provide.
√ When evaluating and treating persons with symptoms of COVID-19 who do not speak English, using a language line or provide a trained interpreter when possible.
Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
√ Ensure that all staff (healthcare and non-healthcare) and incarcerated/detained persons who will have contact with infectious materials in their work placements have been trained to correctly don, doff, and dispose of PPE relevant to the level of contact they will have with confirmed and suspected COVID-19 cases.
23

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1186 Page 28 of 37
ο Ensure that staff and incarcerated/detained persons who require respiratory protection (e.g., N95s) for their work responsibilities have been medically cleared, trained, and fit-tested in the context of an employer’s respiratory protection program.
ο For PPE training materials and posters, please visit the CDC website on Protecting Healthcare Personnel.
√ Ensure that all staff are trained to perform hand hygiene after removing PPE.
√ If administrators anticipate that incarcerated/detained persons will request unnecessary PPE, consider providing training on the different types of PPE that are needed for differing degrees of contact with COVID-19 cases and contacts, and the reasons for those differences (see Table 1). Monitor linked CDC guidelines in Table 1 for updates to recommended PPE.
√ Keep recommended PPE near the spaces in the facility where it could be needed, to facilitate quick access in an emergency.
√ Recommended PPE for incarcerated/detained individuals and staff in a correctional facility will vary based on the type of contact they have with COVID-19 cases and their contacts (see Table 1). Each type of recommended PPE is defined below. As above, note that PPE shortages are anticipated in every category during the COVID-19 response. ο N95 respirator
See below for guidance on when face masks are acceptable alternatives for N95s. N95 respirators should be prioritized when staff anticipate contact with infectious aerosols from a COVID-19 case. ο Face mask ο Eye protection—goggles or disposable face shield that fully covers the front and sides of the face ο A single pair of disposable patient examination gloves
Gloves should be changed if they become torn or heavily contaminated. ο Disposable medical isolation gown or single-use/disposable coveralls, when feasible
 If custody staff are unable to wear a disposable gown or coveralls because it limits access to their duty belt and gear, ensure that duty belt and gear are disinfected after close contact with the individual. Clean and disinfect duty belt and gear prior to reuse using a household cleaning spray or wipe, according to the product label.
 If there are shortages of gowns, they should be prioritized for aerosol-generating procedures, care activities where splashes and sprays are anticipated, and high-contact patient care activities that provide opportunities for transfer of pathogens to the hands and clothing of staff.
√ Note that shortages of all PPE categories are anticipated during the COVID-19 response, particularly for non-healthcare workers. Guidance for optimizing the supply of each category can be found on CDC’s website: ο Guidance in the event of a shortage of N95 respirators  Based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for staff engaging in activities that would expose them to respiratory aerosols, which pose the highest exposure risk. ο Guidance in the event of a shortage of face masks ο Guidance in the event of a shortage of eye protection ο Guidance in the event of a shortage of gowns/coveralls
24

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1187 Page 29 of 37
Table 1. Recommended Personal Protective Equipment (PPE) for Incarcerated/Detained Persons and Staff in a Correctional Facility during the COVID-19 Response

Classification of Individual Wearing PPE

N95 respirator

Face mask

Eye Protection

Gloves

Gown/ Coveralls

Incarcerated/Detained Persons

Asymptomatic incarcerated/detained persons (under Apply face masks for source control as feasible based on local supply, quarantine as close contacts of a COVID-19 case*) especially if housed as a cohort

Incarcerated/detained persons who are confirmed or

suspected COVID-19 cases, or showing symptoms of

–



–

–

–

COVID-19

Incarcerated/detained persons in a work placement

handling laundry or used food service items from a

–

–

–





COVID-19 case or case contact

Incarcerated/detained persons in a work placement Additional PPE may be needed based on

cleaning areas where a COVID-19 case has spent time the product label. See CDC guidelines for





more details.

Staff

Staff having direct contact with asymptomatic incarcerated/detained persons under quarantine as close contacts of a COVID-19 case* (but not performing temperature checks or providing medical care)

–

Face mask, eye protection, and gloves as local supply and scope of duties allow.

–

Staff performing temperature checks on any group

of people (staff, visitors, or incarcerated/detained persons), or providing medical care to asymptomatic

–









quarantined persons

Staff having direct contact with (including transport)

or offering medical care to confirmed or suspected

 **

COVID-19 cases (see CDC infection control guidelines)







Staff present during a procedure on a confirmed

or suspected COVID-19 case that may generate respiratory aerosols (see CDC infection control



guidelines)

–







Staff handling laundry or used food service items from a COVID-19 case or case contact

–

–

–





Staff cleaning an area where a COVID-19 case has

Additional PPE may be needed based on

spent time

the product label. See CDC guidelines for





more details.

* If a facility chooses to routinely quarantine all new intakes (without symptoms or known exposure to a COVID-19 case) before integrating into the facility’s general population, face masks are not necessary.
** A NIOSH-approved N95 is preferred. However, based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for procedures that are likely to generate respiratory aerosols, which would pose the highest exposure risk to staff.

25

Case 2:20-cv-10949-LVP-MJH ECF No. 33-5 filed 04/27/20 PageID.1188 Page 30 of 37
Verbal Screening and Temperature Check Protocols for Incarcerated/Detained Persons, Staff, and Visitors
The guidance above recommends verbal screening and temperature checks for incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody. Below, verbal screening questions for COVID-19 symptoms and contact with known cases, and a safe temperature check procedure are detailed. √ Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include
the following questions: ο Today or in the past 24 hours, have you had any of the following symptoms?  Fever, felt feverish, or had chills?  Cough?  Difficulty breathing? ο In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)?
√ The following is a protocol to safely check an individual’s temperature: ο Perform hand hygiene ο Put on a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), gown/coveralls, and a single pair of disposable gloves ο Check individual’s temperature ο If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned routinely as recommended by CDC for infection control. ο Remove and discard PPE ο Perform hand hygiene
26

4/27/2020

Case 2:20-cv-10949-LVP-MJH ECF NoH.o3w3to-P5rotefcilteYodur0se4lf/&27Ot/h2e0rs | CDPCageID.1189 Page 31 of 37

Coronavirus Disease 2019
How to Protect Yourself & Others
Older adults and people who have severe underlying medical conditions like heart or lung disease or diabetes seem to be at higher risk for developing serious complications from COVID-19 illness. More information on Are you at higher risk for serious illness?



Know how it spreads
There is currently no vaccine to prevent coronavirus disease 2019 (COVID-19). The best way to prevent illness is to avoid being exposed to this virus. The virus is thought to spread mainly from person-to-person.
Between people who are in close contact with one another (within about 6 feet). Through respiratory droplets produced when an infected person coughs, sneezes or talks. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. Some recent studies have suggested that COVID-19 may be spread by people who are not showing symptoms.

Everyone Should



Wash your hands often
Wash your hands often with soap and water for at least 20 seconds especially after you have been in a public place, or after blowing your nose, coughing, or sneezing. If soap and water are not readily available, use a hand sanitizer that contains at least 60% alcohol. Cover all surfaces of your hands and rub them together until they feel dry.
Avoid touching your eyes, nose, and mouth with unwashed hands.



Avoid close contact
Avoid close contact with people who are sick Stay home as much as possible.   | [Español   ] Put distance between yourself and other people.
Remember that some people without symptoms may be able to spread virus.

Keeping distance from others is especially important for people who are at higher risk of getting very sick.

 Cover your mouth and nose with a cloth face cover when around others

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html

1/3

4/27/2020

Case 2:20-cv-10949-LVP-MJH ECF NoH.o3w3to-P5rotefcilteYodur0se4lf/&27Ot/h2e0rs | CDPCageID.1190 Page 32 of 37
You could spread COVID-19 to others even if you do not feel sick. Everyone should wear a cloth face cover when they have to go out in public, for example to the grocery store or to pick up other necessities.
Cloth face coverings should not be placed on young children under age 2, anyone who has trouble breathing, or is unconscious, incapacitated or otherwise unable to remove the mask without assistance. The cloth face cover is meant to protect other people in case you are infected. Do NOT use a facemask meant for a healthcare worker. Continue to keep about 6 feet between yourself and others. The cloth face cover is not a substitute for social distancing.



Cover coughs and sneezes
If you are in a private setting and do not have on your cloth face covering, remember to always cover your mouth and nose with a tissue when you cough or sneeze or use the inside of your elbow. Throw used tissues in the trash. Immediately wash your hands with soap and water for at least 20 seconds. If soap and water are not readily available, clean your hands with a hand sanitizer that contains at least 60% alcohol.



Clean and disinfect
Clean AND disinfect frequently touched surfaces daily. This includes tables, doorknobs, light switches, countertops, handles, desks, phones, keyboards, toilets, faucets, and sinks.
If surfaces are dirty, clean them. Use detergent or soap and water prior to disinfection.
Then, use a household disinfectant. Most common EPA-registered household disinfectants  will work.

Handwashing Resources
 Handwashing tips

 Hand Hygiene in Healthcare Settings

More information

Symptoms What to do if you are sick If someone in your house gets sick

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html

2/3

4/27/2020

Case 2:20-cv-10949-LVP-MJH ECF NoH.o3w3to-P5rotefcilteYodur0se4lf/&27Ot/h2e0rs | CDPCageID.1191 Page 33 of 37

Frequently asked questions

Travelers Individuals, schools, events, businesses and more Healthcare Professionals 6 Steps to Prevent COVID-19 6 Steps to Prevent COVID-19 (ASL Version) Social Distancing (ASL Video) ASL Video Series: What You Need to Know About Handwashing

Page last reviewed: April 24, 2020

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html

3/3

4/27/2020

Case 2:20-cv-10949-LVP-MJH ECF No. 33-W5hatfiYloeudCa0n4D/o2|7C/D2C0 PageID.1192 Page 34 of 37

Coronavirus Disease 2019
What You Can Do
Stay home and avoid close contact, especially if you are at higher risk of severe illness or if you may have issues getting assistance if you get sick.

Steps you can take
If you are at higher risk for serious illness from COVID-19 because of your age or because you have a serious longterm health problem, it is extra important for you to take actions to reduce your risk of getting sick with the disease.
Stay home if possible. Wash your hands often. Take everyday precautions to keep space between yourself and others (stay 6 feet away, which is about two arm lengths). Keep away from people who are sick. Stock up on supplies. Clean and disinfect frequently touched services. Avoid all cruise travel and non-essential air travel. Call your healthcare professional if you have concerns about COVID-19 and your underlying condition or if you are sick. Steps You Can Take (Printer Friendly version) 
Related: How to Protect Yourself

Coping with stress
Older people and people of any age who have serious underlying health conditions are at higher risk for severe illness from COVID-19. People who may have issues getting assistance if they become ill, like those experiencing homelessness or people with disabilities are also at increased risk from COVID-19.
These conditions and situations may result in increased stress during this pandemic. Fear and anxiety can be overwhelming and cause strong emotions.
Things you can do to support yourself:
Take breaks from watching, reading, or listening to news stories and social media. Hearing about the pandemic repeatedly can be upsetting. Take care of your body. Take deep breaths, stretch, or meditate. Try to eat healthy, well-balanced meals, exercise regularly, get plenty of sleep, and avoid alcohol and drugs. Make time to unwind. Try to do some other activities you enjoy. Connect with others. Talk with people you trust about your concerns and how you are feeling. Call your healthcare provider if stress gets in the way of your daily activities for several days in a row. If you, or someone you care about, are feeling overwhelmed with emotions like sadness, depression, or anxiety, or feel like you want to harm yourself or others call
911

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/what-you-can-do.html

1/4

4/27/2020

Case 2:20-cv-10949-LVP-MJH ECF No. 33-W5hatfiYloeudCa0n4D/o2|7C/D2C0 PageID.1193 Page 35 of 37

Substance Abuse and Mental Health Services Administration’s (SAMHSA’s) Disaster Distress Helpline: 1-800985-5990 or text TalkWithUs to 66746. (TTY 1-800-846-8517)

Related: Stress and Coping

Have a plan for if you get sick
Know how to stay in touch with others by phone or email. You may need to ask for help from friends, family, neighbors, and community health workers if you become sick. Determine who can care for you if your caregiver gets sick.
Contact your healthcare provider to ask about obtaining extra necessary medications to have on hand in case there is an outbreak of COVID-19 in your community and you need to stay home for a prolonged period of time. If you cannot get extra medications, consider using mail-order for medications. Be sure you have over-the-counter medicines and medical supplies (tissues, etc.) to treat fever and other symptoms. Most people will be able to recover from COVID-19 at home. Have enough household items and groceries on hand so that you will be prepared to stay at home. Consider ways of getting medications and food brought to your house through family, social, or commercial networks. Have a plan for someone to care for your pets during your illness.
Related: Cleaning and Disinfecting Your Home

Check with your local public health o cials
Depending on how severe the outbreak is, your local public health o cials may recommend community actions to reduce people’s risk of being exposed to COVID-19. These actions can slow the spread and reduce the impact of disease.
Stay home as much as possible. Take extra measures to put distance between yourself and other people to further reduce your risk of being exposed to this new virus.
Related: List of Local Health Departments

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/what-you-can-do.html

2/4

4/27/2020

Case 2:20-cv-10949-LVP-MJH ECF No. 33-W5hatfiYloeudCa0n4D/o2|7C/D2C0 PageID.1194 Page 36 of 37

What to do if you have symptoms
Watch for symptoms and emergency warning signs.
Pay attention for potential COVID-19 symptoms including, fever, cough, and shortness of breath. If you feel like you are developing symptoms, stay home and call your doctor. Tell them that you have or may have COVID-19. This will help them take care of you and keep other people from getting infected or exposed. If you are not sick enough to be hospitalized, you can recover at home. If you develop emergency warning signs for COVID-19 get medical attention immediately. In adults, emergency warning signs* are:
Di culty breathing or shortness of breath Persistent pain or pressure in the chest New confusion or inability to arouse Bluish lips or face
*This list is not all inclusive. Please consult your medical provider for any other symptoms that are severe or concerning.
Related: Symptoms and Testing | What to do if You Are Sick

What others can do
Community support
Community preparedness planning for COVID-19 should include older adults and people with disabilities, and the organizations that support them in their communities, to ensure their needs are taken into consideration. Many of these individuals live in the community, and many depend on services and supports provided in their homes or in the community to maintain their health and independence.
Long-term care facilities should be vigilant to prevent the introduction and spread of COVID-19. See guidance for longterm care facilities.
Related: Schools, Workplaces, and Community Locations

Family and caregiver support

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/what-you-can-do.html

3/4

4/27/2020
a

Case 2:20-cv-10949-LVP-MJH ECF No. 33-W5hatfiYloeudCa0n4D/o2|7C/D2C0 PageID.1195 Page 37 of 37
y a d ca eg e suppo t

Know what medications your loved one is taking and see if you can help them have extra on hand.
Monitor food and other medical supplies (oxygen, incontinence, dialysis, wound care) needed and create a backup plan.
Stock up on non-perishable food to have on hand in your home to minimize trips to stores. If you care for a loved one living in a care facility, monitor the situation, ask about the health of the other residents frequently and know the protocol if there is an outbreak.

Related: If you are Sick or Caring for Someone

More information
More information
How to Protect Yourself Stress and Coping Cleaning and Disinfecting Your Home List of Local Health Departments Symptoms & Testing What to Do If You Are Sick Long-term Care Facilities Schools, Workplaces, and Community Locations If You Are Sick or Caring for Someone

Page last reviewed: April 3, 2020

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/what-you-can-do.html

4/4

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.808 Page 1 of 49

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DISTRICT

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,

Case 2:20-cv-10949-LVP-MJH

v.

MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,

Defendants. __________________________________________________________________

DEFENDANTS’ MOTION TO DISMISS PETITION FOR HABEAS CORPUS, CLAIMS AGAINST BOUCHARD AND CHILDS (IN LIEU OF
ANSWER TO COMPLAINT) AND RESPONSE TO MOTION FOR TEMPORARY RESTRAINING ORDER

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.809 Page 2 of 49

NOW COME Defendants, MICHAEL BOUCHARD, CURTIS D. CHILDS and

OAKLAND COUNTY, by and through their attorneys, POTTER DeAGOSTINO

O’DEA & CLARK, and pursuant to Fed. R. Civ. P. 12(b)(6), hereby request the Court

to dismiss Plaintiff’s Petition for Habeas Corpus and claims against Bouchard and

Childs, and pursuant to Fed. R. Civ. P. 65 and deny Plaintiff’s Motion for Temporary

Restraining Order for the reasons set forth in the brief accompanying this Motion.

POTTER, DeAGOSTINO, O’DEA & CLARK

Dated:

April 23, 2020

s/ STEVEN M. POTTER (P33344) s/ ROBERT C. CLARK (P76359) Attorneys for Defendants 2701 Cambridge Court, Suite 223 Auburn Hills, Michigan 48326 (248) 377-1700 spotter@potterlaw.com

BRIEF IN SUPPORT OF MOTION AND RESPONSE I. Factual Background
A. Procedural History Plaintiffs, all convicted felons, filed the instant action on April 17, 2020. Plaintiffs’ Petition, titled “Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief” seeks class certification for potentially all inmates incarcerated at Oakland County Jail and (without legal basis) requests their release
2

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.810 Page 3 of 49
from jail. Since the filing of Plaintiffs’ Petition and other related filings, this Court has held several status conferences and is well familiar with the procedural history of this case. Important to the instant motion, Plaintiffs have only asserted claims against Defendants Bouchard and Childs in their official capacity which are to be treated as claims against Oakland County. As discussed extensively below, the fact that Plaintiffs have only asserted claims against Oakland County provides the legal framework for the analysis of the validity (or lack thereof) of Plaintiffs’ claims.
B. Oakland County Jail’s Pro-activity and Response to COVID-19 Prior to the first confirmed COVID-19 case in the jail, Defendants took an immediate and proactive response to the COVID-19 pandemic to curb an outbreak or spread at the Oakland County Jail. The Oakland County Jail has a capacity of 1,664 inmates. (Exhibit I, Population Report). On March 17, 2020 the inmate population was 1,223. (Exhibit B, Affidavit of Captain Childs, ¶ 31; Exhibit O, March 17 OCJ Population Report). Beginning in March, an initiative for compassionate releases occurred wherein OCSO advised Oakland County judges of 166 inmates who were incarcerated due to misdemeanor convictions and/or were potentially medically vulnerable. (Exhibit A, Sample correspondence1 dated March
1
Defendants have attached one (1) sample letter sent directly to an Oakland County judge and other correspondence to court administrators. There are numerous additional letters not attached to Defendants’ Motion.
3

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.811 Page 4 of 49
17, correspondence with court administrators and redacted spreadsheet identifying inmates; Exhibit B, ¶ ¶ 26-27). As a result of this initiative, 101 inmates were released by the state court judges who sentenced same. (Exhibit B, ¶ 28).
Additionally, approximately three (3) weeks prior to the first confirmed case at the jail on March 28, signs were posted throughout the jail advising inmates of the steps being taken to attempt to prevent the virus from entering the facility. (Exhibit B, Affidavit of Captain Curtis Childs, ¶17). These were posted throughout the jail as early as March 11, 2020. (Exhibit B, ¶17; Exhibit C, Sign). The posts advised inmates that extra cleaning was being performed throughout the facility including ultraviolet cleaning. (Exhibit B).
Part of the jail’s attempts to prevent and/or eliminate the spread of COVID-19 from entering and/or spreading throughout the jail has included various hygiene and cleanliness practices inside the jail. The following represent practices incorporated by the jail:
1. Inmates in the main jail receiving area are given showers three times a week and are given whatever soap is needed when they shower. Additionally, two bars of soap are also provided to inmates in receiving area two times per week. In the main jail, the inmates receive two bars of soap two times per week. In the Annex, inmates are allowed to shower daily and soap is provided when they shower. In addition, inmates in the Annex receive two bars of soap twice per week.
4

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.812 Page 5 of 49
Furthermore, the desk deputy in each housing area has extra boxes of soap that is available upon request. (Exhibit B, ¶ 5).
2. The jail uses a product called DMQ. The jail only dilutes this product pursuant to the manufacturer’s instruction. The product is machine mixed at the jail. DMQ is available to all inmates when requested and no less than three times per day. It is provided to the inmates with food delivery. Inmates are provided sponges and rags in order to use the DMQ. When inmates are transferred between cells, the cells are always disinfected before use by the transferring inmates. (Exhibit B, ¶ 6).
3. Food preparation inmates are provided masks and gloves. Food delivery inmates are also provided masks and gloves. These requirements existed before COVID 19. (Exhibit B, ¶ 7).
4. All inmates are provided fresh, clean laundry once per week. (Exhibit B, ¶ 8).
5. Inmates performing laundry services are provided with gloves and masks and multiple clothing changes per day if requested. COVID 19 laundry is separated from laundry not suspected of COVID 19 contamination. (Exhibit B, ¶ 9).
6. With regard to sinks and toilets contained within cells, cleaning is performed by inmates with DMQ that is provided to them at a minimum of three times per day. (Exhibit B, ¶ 11). Inmates have been advised that “cleaning supplies are readily available” and have been asked to “use them as often as possible.” (Exhibit H).
7. With regard to PPE for correctional staff, all correctional staff have been issued masks and gloves. Additionally, N95 masks and face shields have been issued to correctional staff who have contact with inmates who have tested positive for COVID 19. (Exhibit B, ¶ 12)
8. With regard to common areas within the jail, all common areas are disinfected by custodial staff daily. (Exhibit B, ¶ 13).
5

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.813 Page 6 of 49
9. With regard to shower cleanliness, showers in main jail are in cells and are cleaned by the inmates using DMQ. Showers in Annex are cleaned by the trustees and are to be cleaned after each use by the inmates. The receiving showers are cleaned by trustees immediately after each use. (Exhibit B, ¶ 19).
10. With regard to the holding cells, inmates in the holding cells are not in the same vicinity as the positive and symptomatic inmates who are housed in separate pods. (Exhibit B, ¶ 20).
Hand sanitizer is not given to inmates due to an incident that occurred in October 2019 when inmates attempted to mix the hand sanitizer with other substances in an effort to create drinkable alcohol which resulted in several inmates becoming ill. (Exhibit B, ¶ 18; Exhibit D, Incident Report).
With regard to inmates’ communication with the medical staff, sick call slips are distributed to the inmates daily and picked up every morning by medical staff. (Exhibit F, Affidavit of Vicki-Lyn Warren, ¶ 3). Sick call slips are the protocol for inmates to self-report COVID-19 symptoms. (Exhibit F, ¶ 3). Individuals who are displaying COVID-19 symptoms are seen daily by the medical staff and assessed accordingly. (Exhibit F, ¶ 3). A full set of vitals is taken once per day. (Exhibit F, ¶ 3). Temperature is taken by the day, afternoon and midnight medical shifts and therapeutics are administered as needed. (Exhibit F, ¶ 3). On Monday-Friday, each housing area is visited by a doctor or nurse practioner at which time the doctor or nurse practioner are constantly interacting with the inmate population and providing
6

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.814 Page 7 of 49
lengthy verbal education regarding the importance of self-reporting COVID-19 symptoms. (Exhibit F, ¶ 4).
Unfortunately, despite the jail’s best efforts to prevent COVID-19 from entering the jail, the first inmate tested positive for COVID-19 on March 28, 2020. (Exhibit B, ¶ 25). Subsequent to the first positive case, Oakland County Jail personnel were extremely aggressive in preventing further outbreak. If an inmate tests positive, that inmate is transferred into a pod designated for COVID 19 individuals. If an inmate has significant symptoms of COVID 19, that inmate is transferred from their cell and put into an area designated as symptomatic pod. (Exhibit B, ¶ 4). All inmates who had contact with someone who tests positive or has significant symptoms of COVID 19 are then placed into quarantine for 14 days. (Exhibit B, ¶ 4).
All inmates who have shown symptoms of COVID-19 are tested. (Exhibit F, ¶ 15). In accord with CDC guidelines, the OCSO has implemented a new “pre-intake screening” practice which includes identifying new inmates with COVID-19 complaints and taking all new inmates’ temperature. (Exhibit B, ¶ 32). As of April 18, 2020, 242 inmates had received testing in the form of a swab. (Exhibit F, ¶ 15 ). Of the 242 tests, only 36 inmates have tested positive. (Exhibit F, ¶ 15). Five (5) of the 36 inmates who have tested positive have been released from custody. (Exhibit F, ¶ 15). Seven (7) of the 36 inmates who have tested positive have recovered and are no
7

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.815 Page 8 of 49
longer quarantined. (Exhibit F, ¶ 15). Thus, 24 inmates remain in quarantine with positive results at the jail. (Exhibit F, ¶ 15). The total jail population as of April 17, 2020 was 742 inmates. (Exhibit I, Daily Inmate Population Report).
The jail has also taken measures to encourage reporting of COVID-19 symptoms by including the waiver of any cost for treatment related to COVID-19 or filing a grievance. (Exhibit F, ¶ 15). Additional signs (including in multiple languages) have been posted as the pandemic has progressed. (Exhibit S, Signs).
C. Plaintiffs’ Credibility (or lack thereof) In support of Plaintiffs’ Motion for TRO, Plaintiffs attach declarations containing allegations regarding the conditions of the jail. Because Defendants did not have an opportunity to respond to Plaintiffs’ Motion (or allegations set forth in the affidavits), the Court admittedly took the affiants and the allegations contained in the affidavits at face value. (See R. 21, Amended Opinion and Order, p. 3). Interestingly, the affiants’ criminal histories are replete with convictions related to crimes involving theft or dishonesty. Raj Lee’s criminal history includes convictions of felony home invasion, felony receiving and concealing stolen property, and most recently felony uttering and publishing countefeit bills or notes. (Exhibit E, Summary of Criminal Histories). David Kucharski’s criminal history includes convictions of felony receiving
8

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.816 Page 9 of 49
and concealing stolen property, felony attempted home invasion, misdemeanor operating a vehicle with a forgery/alteration/false ID, felony larceny in a building, felony home invasion (multiple convictions), felony attempted breaking and entering, felony tampering with electronic monitoring device and misdemeanor retail fraud. (Exhibit E).
Jamaal Cameron’s criminal history includes four convictions of felony uttering and publishing. (Exhibit E).
Matthew Saunders’ criminal history includes convictions of felony armed robbery, felony home invasion (1st degree), felony unlawful driving away of a motor vehicle, felony receiving/concealing stolen property, felony breaking and entering a vehicle (multiple convictions).
Richard Briggs’ criminal history includes convictions of felony receiving and concealing stolen property (multiple convictions), felony attempted unlawful driving away of a motor vehicle (multiple convictions). (Exhibit E).
Michael Bates’ criminal history includes convictions of misdemeanor larceny, felony larceny from a motor vehicle and felony receiving/concealing stolen property. (Exhibit E).
Michael Cameron’s criminal history includes convictions of felony receiving and concealing stolen property (multiple convictions) and felony unlawful driving
9

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.817 Page 10 of 49
away of a motor vehicle (multiple convictions). (Exhibit E). Attached as Exhibit E is summary of affiants’ criminal histories demonstrating
their lack of credibility and corresponding issues with the Court relying on statements made by these individuals who have shown their propensity to repeatedly engage in dishonest acts.
Certainly, one could wonder if these career criminals are not simply looking for a “get-out-of- jail-free” card.
ARGUMENT Defendants seek dismissal of the claims against them set forth in Plaintiffs’ habeas petition because they fail to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Gavitt v Born, 835 F.3d 623, 639-640 (6th Cir. 2016) set forth the applicable standard of review as follows: The complaint is viewed in the light most favorable to [plaintiff]; the allegations in the complaint are accepted as true, and all reasonable inferences are drawn in his favor. Jelovsek v. Bredesen, 545 F.3d 431, 434 (6th Cir. 2008)... The complaint must state a claim that is plausible on its face, i.e., the court must be able to draw a “reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). I. Plaintiff’s Habeas Petition Should Be Dismissed A. Plaintiffs’ Have Failed to Exhaust Required Available State Remedies Plaintiffs have failed to exhaust the requisite available state remedies prior to
10

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.818 Page 11 of 49
filing the instant action. Pursuant to 28 U.S.C. § 2254(b)(1): An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
See also, O’Sullivan v Boerckel, 526 US 838, 845 (1999). The exhaustion requirement “serves to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners’ federal rights. Duckworth v Serrano, 454 US 1, 3 (1981). Moreover, the Sixth Circuit has held, “ [A] federal habeas petitioner “must first exhaust the remedies available in state court by fairly presenting his federal claims before the state court; the federal court will not review unexhausted claims.” Irick v Bell, 565 F3d 315, 323 (6th Cir.2009)(citations and quotations omitted). “ A federal court will not review claims that were not entertained by the state court due to ... the petitioner's failure to raise those claims in the state courts while state remedies were available....” Id at 323-324 (citations and quotations omitted). This includes presentation of the claims to the state appellate courts where review is discretionary and part of the ordinary appellate procedure in the state. O’Sullivan, 526 US at 847. “Where state remedies remain available to the habeas petitioner who has not fairly
11

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.819 Page 12 of 49
presented his constitutional claim(s) to the state courts, the exhaustion doctrine precludes a federal court from granting him relief on that claim,..” Perruquet v Briley, 390 F3d 505, 514 (7th Cir. 2004).
In Money v Pritzker, - - - F. Supp. 3d - - - , 2020 WL 1820660 (N.D. Ill, April 10, 2020)(attached as Exhibit P), plaintiffs filed a habeas petition in federal court seeking their release from incarceration alleging the prison setting made them (and other purported class members) vulnerable to COVID-19 and the only way to solve the problem was for release. Id at *2. The court dismissed plaintiffs’ habeas petition holding that plaintiffs’ failed to raise their claims in the state courts prior to filing suit in federal court. Id at *21-22. The court noted that the state courts were available for emergency matters. Id at *21. Notably, the court held, “[T]o be sure, exhaustion requirements can (and should) be waived when relief is truly unavailable. But waiving them here - when state courts clearly were available...would turn the habeas system upside down.” Id at *22.
Just as in Money, Plaintiffs in the instant action attempt to “turn the habeas system upside down” through their blatant disregard of available state remedies. Id. Plaintiffs have not and cannot show that they pursued their claims in any state court prior to filing the instant action. This alone is fatal to Plaintiffs’ habeas petition. 28 U.S.C. § 2254(b)(1); Irick, supra. While it is anticipated Plaintiffs may argue that the
12

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.820 Page 13 of 49
state courts in Michigan are not available, this argument is without merit. The Oakland County Circuit Court has entered multiple orders indicating it remains available to handle “emergency matters.” (See Exhibit K, Oakland County Court Administrative Order, “[T]his Order is amended to continue emergency procedures...”). The Oakland County Circuit Court’s Order is consistent with the Michigan Supreme Court’s Administrative Order dated March 15, 2020 which states, “Trial Courts may adjourn...any criminal maters where the defendant is not in custody; where a criminal defendant is in custody, trial courts should expand the use of videoconferencing when the defendant consents.” (Exhibit L, Order). Indeed, Oakland County Circuit Court remains available to handle non-emergency matters as well. (See Exhibit K, “[N]on-emergency matters may be heard by audio or video conferencing...”). Simply put, Oakland County Circuit Court, and the available appeals court in Michigan remain available to hear emergency and non-emergency related issues. Despite the availability of the state courts, Plaintiffs failed to raise their claims in state court prior to filing the instant action. Therefore, Plaintiffs habeas petition is procedurally defective and barred. Consequently, it should be dismissed.
B. PLRA Precludes the Release of Plaintiffs/Inmates at OCJ Even if Plaintiffs could show they have exhausted the required state remedies, their habeas petition still fails because this Court does not have authority to order the
13

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.821 Page 14 of 49
release of inmates at Oakland County Jail. In regard to a prisoner’s claims regarding
conditions and confinement while incarcerated, the United Stated District Court for
the Western District of Michigan recently noted:
The United States Supreme Court has explained that "[f]ederal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1987, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983." Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). Causes of action arising from the conditions and circumstances of confinement are brought through claims under § 1983 and are subject to various procedures and consequences set forth in the Prison Litigation Reform Act (PLRA). See id.; Moran v. Sondalle, 218 F.3d 647, 649 (7th Cir. 2000) (per curiam). Challenges to the validity and duration of a conviction are brought through habeas applications and are subject to different procedures and consequences set forth in the Antiterroism and Effective Death Penalty Act (AEDPA). See Muhammad, 540 U.S. at 750; Moran, 218 F.3d at 649. Because the requirements for the two types of lawsuits are different, the Seventh Circuit explained that it was "important to classify [the] cases correctly." Moran, 218 F.3d at 649.
The Seventh Circuit also noted that prisoners "may be tempted to choose one route rather than another to avoid" the various procedures and consequences set forth in the two statutes. Moran, 218 F.3d at 649. A "hybrid" action involving both types of claims "presents significant problems and courts must be on guard for attempts to use § 1983" to avoid the restrictions contained in the AEDPA. Spencer v. Barret, No. 14-10823, 2015 WL 4528052, at *4 (E.D. Mich. July 27, 2015). Where prisoner have sought to bring a hybrid habeas and civil rights claims, courts have directed the prisoners to file separate actions. See, e.g., Kirk v. Jablonski, No. 18-cv-288, 2019 WL 1283009, at *1 (D.N.M. Mar. 20, 2019).
Dunbar v. Rozen, No. 1:18-CV-617, 2019 WL 3213757, at *2 (W.D. Mich. July 17,
14

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.822 Page 15 of 49
2019) (attached as Exhibit J). 1. The Conditions of the PLRA Are Not Satisfied
The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, incorporates the provisions of 18 U.S.C. § 3626, titled “appropriate remedies with respect to prison conditions.” Pursuant to this section, “prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” 18 U.S.C. § 3626(a)(1). Courts are instructed “to give substantial weight to any adverse impact on public safety or the operation of the criminal justice system caused by the relief.” Id. “Civil action with respect to prison conditions” is defined as “any civil proceeding arising under Federal law with respect to the conditions of confinement and the effects of actions by government officials on the lives of persons confined in prison” but explicitly “does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.” 18 U.S.C. § 3626(a)(2).
Importantly, the PLRA sets forth procedures for consideration of a “prisoner release order.” 18 U.S.C. § 3626(a)(3). A “prisoner release order” includes “any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison.” 18 U.S.C. § 3626(g)(4). A
15

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.823 Page 16 of 49
court may not enter a “prisoner release order” unless it “has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied” and “the defendant has had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. § 3626(a)(3)(i)-(ii). Once these conditions have been satisfied, only a three-judge panel can consider and issue a “prisoner release order” once it has determined by clear and convincing evidence that “crowding is the primary cause of the violation of a Federal right” and “no other relief will remedy the violation.” 18 U.S.C. § 3626(a)(3)(E)(i)(ii); Brown v Plata, 563 US 493, 512 (2011); Money, supra.
Courts have routinely denied plaintiffs request for a prison release order due to concerns related to COVID-19 in accordance with the conditions set forth in the PLRA. In Money, supra, the court denied plaintiffs’ request to be released from the Illinois Department of Corrections due to alleged concerns regarding the inmates’ safety and wellbeing during the COVID-19 pandemic. Id at *1. In its Opinion and Order denying plaintiffs’ requested relief, the court held:
The upshot is that the PLRA prevents this Court from granting the temporary restraining order on the Section 1983 claim, for a number of reasons. First, the statute provides that “no court shall enter a prisoner release order unless * * * a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right,” and the defendants have “had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. § 3626(a)(3)(A)(i),
16

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.824 Page 17 of 49
(ii). Here, there is no such “previous court order[ ].” Id. Second, the statute provides that “only” a “three-judge court” can enter a prisoner release order. 18 U.S.C. § 3626(a)(3)(B). So, this Court, standing alone, lacks the authority to issue any order that has the “purpose or effect of reducing or limiting the prison population.” Id.; 18 U.S.C. § 3626(g)(4). Id at *14 (emphasis supplied). Similarly, in Coleman & Plata v Newsom, 2020 WL 1675775 (E.D. Cal April 4, 2020)(Exhibit R), plaintiffs sought an order directing the Governor of California and other state officials to release categories of inmates who were low-risk, nonviolent and/or close to their release dates and to “release or relocate inmates who, because of their age or other medical conditions, are at a high risk of developing a severe form of COVID-19.” Id at *3. In denying plaintiffs’ request, the court noted plaintiffs could not satisfy the PLRA’s “prior order requirement because there have not yet been any orders requiring Defendants to take measures short of release to address the threat of the virus; nor have Defendants had a reasonable time to comply.” Id at *4. Just as in Money and Coleman, supra, the PLRA is implicated in the instant case because Plaintiffs’ Petition for Habeas Corpus seeks a “prisoner release order.” Specifically, Plaintiffs’ Petition for Habeas Corpus requests an order to “release all Medically Vulnerable Petitioners/Plaintiffs and Subclass Members of transferring them to home confinement.” (Plaintiff’s Petition, p. 67). Also similar to Money and
17

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.825 Page 18 of 49
Coleman, Plaintiffs’ request has no legal support and similarly has no likelihood of success. Prior to Plaintiffs’ habeas petition, no court has ever entered an order for “less intrusive relief.” 18 U.S.C. 3626(a)(3)(A)(i); Gillette v Prosper, 858 F3d 833, 837 (3d Cir. 2017). Just as the Money court held when facing concerns related to COVID-19, “there is no such ‘previous court order.” Money, at *14. This includes the Stipulation involved in the instant case which expressly indicates it is not an “order” for purposes of the PLRA. Because no prior order has been entered, it is impossible for Plaintiffs to show that Defendants had a “reasonable amount of time to comply with the prior court orders.” Id; 18 U.S.C. 3626(a)(3)(A)(ii). Thus, Plaintiffs cannot show that either requirement of the PLRA is satisfied. Moreover, even if Plaintiffs could show the requirements were satisfied, this Court alone would not have the authority to order release of Plaintiffs or any other inmates of Oakland County Jail. Instead, a three judge panel would need to consider the requested “prisoner release order” after making a determination that there is clear and convincing evidence that “crowding” is the primary cause of constitutional violation and no other relief is sufficient. 18 U.S.C. § 3626(a)(3)(E)(i)-(ii). Simply put, just as the Money court held, “this Court, standing alone, lacks the authority to issue any order that has the ‘purpose or effect of reducing or limiting the prison population.’” Therefore, to the extent the Court’s Opinion and Order contemplated possible release of Plaintiffs and/or other
18

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.826 Page 19 of 49
inmates at Oakland County Jail (see Opinion and Order p. 7), it contained a palpable defect and was inconsistent with established authority. Consequently, the Order should be reconsidered and set aside.
C. Habeas Is Not Available For Eighth and Fourteenth Amendment Claims The Rooker-Feldman doctrine prohibits “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp v Saudi Basic Indus Corp, 544 US 280, 284 (2005). Additionally, the Full-Faith and Credit Act, 28 U.S.C. § 1783 requires a federal court to “give the same preclusive effect to a state-court judgment as another court of that state would give.” Migra v Warren City School Dist Bd of Ed, 465 US 75, 80-82 (1984). In Glaus v Anderson, 408 F3d 382, 387-88 (7th Cir. 2005), plaintiff alleged defendant prison officials violated his Eighth Amendment rights. Specifically, plaintiff alleged defendants were deliberately indifferent to his serious medical needs which presented a potentially fatal situation. Id at 384. The district court denied plaintiff’s habeas petition and the Seventh Circuit affirmed the district court holding: Glaus’s habeas corpus petition would be proper if release were among the possible remedies for an Eighth amendment deliberate indifference claim. Unfortunately for Glaus, it is not. If an inmate established that his
19

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.827 Page 20 of 49
medical treatment amounts to cruel and unusual punishment, the appropriate remedy would be to call for proper treatment, or to award him damages; release from custody is not an option...
[Glaus’s claim] must be brought as either a civil rights claim or possibly a Federal Tort Claims Act claim against the United States or an Administrative Procedures Act challenge[.]
The Sixth Circuit has also held that an inmate may not challenge the conditions of
confinement in a habeas petition. In re Owens, 525 Fed. App'x 287, 290 (6th
Cir.2013). Similarly, in Burton v McGlasson, No. 2:14-CV-10693, 2014 WL 700503
(E.D. Mich. Feb. 24, 2014), this Court dismissed plaintiff’s habeas petition when
plaintiff’s petition challenged the conditions of confinement. This Court noted:
Where a prisoner is challenging the very fact or duration of his physical imprisonment and the relief that he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a petition for writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). However, habeas corpus is not available to prisoners who are complaining only of mistreatment during their legal incarceration. See Lutz v. Hemingway, 476 F.Supp.2d 715, 718 (E.D.Mich.2007). Complaints like the ones raised by petitioner which involve conditions of confinement “do not relate to the legality of the petitioner's confinement, nor do they relate to the legal sufficiency of the criminal court proceedings which resulted in the incarceration of the petitioner.” Id. (quoting Maddux v. Rose, 483 F.Supp. 661, 672 (E.D.Tenn.1980)). A petition for writ of habeas corpus is not the proper vehicle for a prisoner's claim that prison officials have been deliberately indifferent to his medical needs, because release from custody is not an available remedy for a deliberate indifference claim. See In re Owens, 525 Fed. App'x 287, 290 (6th Cir.2013); Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir.2005); Hamilton v. Gansheimer,
20

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.828 Page 21 of 49
536 F.Supp.2d 825, 841–42 (N.D.Ohio 2008). An inmate like petitioner should therefore bring his medical indifference claim as a civil rights complaint. Glaus, 408 F.3d at 386–87. Because petitioner challenges only the conditions of his confinement, his claims “fall outside of the cognizable core of habeas corpus relief.” See Hodges v. Bell, 170 Fed. App'x 389, 393 (6th Cir.2006). Id at *1 (emphasis supplied). See also, Martin v Zych, 2009 WL 398166 (E.D. Mich. Feb. 17, 2009) (holding “petition for writ of habeas corpus is not the proper vehicle for a prisoner's claim that prison officials have been deliberately indifferent to his medical needs, because release from custody is not an available remedy for a deliberate indifference claim”); Davis v Zych, 2009 WL 1212489 (E.D. Mich. May 4, 2009) (“[C]laims concerning the conditions of confinement are not cognizable in a habeas action brought pursuant to 28 U.S.C. §§ 2241 or 2254"); Crites v Madison County Jail, 2018 WL 1832919 at *2 (dismissing habeas petition on preliminary review holding deliberate indifference claim was non-cognizable) and Peterson v Diaz, 2020 WL 1640008 (E.D. Cal. April 2, 2020)(holding habeas proceedings not appropriate vehicle to raise Eighth Amendment claims related to COVID-19 pandemic). The same applies for pretrial detainees. Atkins v State of Michigan, 644 F2d 543, 546 (6th Cir.1981). Most recently, this Court rejected an inmate’s claim for habeas relief due to concerns related to COVID-19. Chambers v Bouchard, 20-cv-10916; - - WL - -
21

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.829 Page 22 of 49

- (E.D. Mich. April 20, 2020)(Exhibit Q). As this Court noted, “the mere existence
of COVID-19 in society and the possibility that it may spread to a particular prison
alone cannot independently justify compassionate release.” Id at pp. 6-7; citing
United States v Raia, 20-1033, 2020 WL 1647922 at *2 (3d Cir. April 2, 2020). The
Court went on to state:
These Supreme Court cases clearly direct a federal district court to dismiss a civil rights complaint which raises claims that attack the validity of a conviction; it does not direct a court to construe the civil rights complaint as a habeas petition. See, Parker v Phillips, 27 F. App’x 491, 494 (6th Cir.2001); Murphy v Martin, 343 F. Supp. 2d 603, 610 (E.D. Mich 2004). The Court has no authority to consider a § 1983 action for injunctive relief where the result may be to shorten the duration of the sentence. Id at p. 9.
Here, Plaintiffs have done exactly what has been routinely rejected by
numerous federal courts including the Sixth Circuit and this Court. In re Owens,
Burton, Chambers, supra. Plaintiffs have filed a Petition for Habeas Corpus that
alleges Eighth and Fourteenth Amendment violations relating to the conditions and
confinement of the Oakland County Jail. Plaintiffs’ clearly understand the long and
well established constitutional mandate: Plaintiffs’ habeas petition is not a lawful mechanism for challenging conditions and confinement of incarceration2. As this
Court has previously noted, “A petition for writ of habeas corpus is not the proper

2

In light of the overwhelming authority establishing Plaintiffs’ position lacks merit,

Plaintiffs’ Petition for Habeas Corpus is arguably in violation of FRCP 11.

22

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.830 Page 23 of 49
vehicle for a prisoner's claim that prison officials have been deliberately indifferent to his medical needs, because release from custody is not an available remedy for a deliberate indifference claim.” Burton, supra. Consequently, their habeas petition should be dismissed. Id. II. Plaintiff’s Are Not Entitled to a Temporary Restraining Order
In order to grant a TRO, the Court must consider (1) whether the movant has a strong likelihood of success on the merits, (2) whether the movant would suffer irreparable injury absent a stay, (3) whether granting the stay would cause substantial harm to others, and (4) whether the public interest would be served by granting the stay. Ohio Republic Party v Brunner, 543 F3d 357, 361 (6th Cir.2008).
Where a prison inmate seeks an order enjoining prison officials, this Court is required to proceed with the utmost care and must recognize the unique nature of the prison setting. Orum v Michigan Dep’t of Corrections, 2018 WL 8369471 *11 (W.D. Mich, December 11, 2018)(citing Kendrick v. Bland, 740 F.2d 432 at 438, n.3, (6th Cir. 1984); Harris v. Wilters, 596 F.2d 678 (5th Cir. 1979)). In the context of the prison administration, “the interests of identifiable third parties and the public at large weigh against the granting of an injunction. Any interference by the federal courts in the administration of ... prison matters is necessarily disruptive.” The Sixth Circuit has noted:
23

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.831 Page 24 of 49
It is fundamental that the federal forum, as the ultimate guardian of constitutional rights, possesses the authority to implement whatever remedy is necessary to rectify constitutionally infirm practices, policies or conduct.... This broad, equitable authority, however, is tempered by precepts of comity and federalism.... The restraints of federalism must be applied not only when an injunction is sought against the judicial branch of state government, but also when an injunction is urged “against those in charge of an executive branch of any agency of state or local government.”.... Thus the federal equity court in fashioning a remedy must afford relief which is “no broader than necessary to remedy the constitutional violation.” Glover v Johnson, 855 F2d 277, 286 (6th Cir.1988)(citations and quotations omitted).
* **
Federal restraint into intrusion of a state penal institution is counseled for at least two reasons: [J]udicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the providence of the Legislative and Executive Branches of our Government not the Judicial.
Kendrick v Bland, 740 F2d 432, 438 (6th Cir.1984)(quotations and citations omitted).
See also, Turner v Safley, 482 US 78, 85 (1987)(“Where a... penal system is involved,
federal courts have ... additional reason to accord deference to the appropriate prison
authorities”); Meachum v Fano, 427 US 215, 229 (1976)(“Federal courts do not sit
to supervise state prisons, the administration of which is of acute interest to the
States”). Importantly, a court should assume that, absent an official policy or practice
urging unconstitutional behavior, individual government officials will act
24

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.832 Page 25 of 49
constitutionally. City of Los Angeles v Lyon, 461 US 95, 102 (1983); O’Shea v Littleton, 414 US 488, 495-96 (1974).
A. Plaintiffs Are Unable to Show A Strong Likelihood of Success In Regard to Their Monell Claims
In order to obtain a TRO, Plaintiffs must first show a strong likelihood of success with regard to a Monell claim against Oakland County. As discussed below, the only claims asserted by Plaintiffs are claims against Defendants Bouchard and Childs in their official capacity. It is well established that official capacity claims are deemed to be claims made against the governmental entity that employs the individual sued in their official capacity. Kentucky v Graham, 473 US 159, 165-68 (1985).
In Monell v New York City Department of Social Services, 436 U.S. 658 (1978), the Supreme Court held that a municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. “It is only when the execution of a government’s policy or custom . . . inflicts the injury that the municipality may be held liable under § 1983.” 436 U.S. at 694; Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994). Plaintiff must establish that “through its deliberate conduct, the [County] was the ‘moving force’ behind” the violation of his constitutional rights. Gregory v. Shelby County, 220 F.3d 433, 442 (6th Cir.
25

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.833 Page 26 of 49
2000). In other words, Plaintiff “must show that the [County’s] action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the [County’s] action and the deprivation of federal rights.” Id. In addition, a plaintiff must show an underlying constitutional violation in order to succeed on a municipal liability claim. SL v Pierce Twp Bd of Trustees, 771 F3d 956, 963 (6th Cir.2014).
As discussed below, it is impossible for Plaintiffs to show 1) an underlying constitutional violation and 2) an unconstitutional policy or practice that was the moving force behind the alleged constitutional violation. The situation Oakland County is presently faced with is by all accounts “novel.” It is a situation that has never confronted municipalities such as Oakland County and is truly unchartered territory. There is no prior case law or other authority other than recently enacted CDC recommendations which provide guidance to municipalities with respect to the operation of their jails during such a crisis. Because neither Oakland County, nor any other municipality, has ever faced an epidemic such as the current COVID-19 pandemic, Plaintiffs cannot show that Oakland County maintains an unconstitutional policy or practice with respect to same. Instead, as explained below, Plaintiffs seek to impose liability on Oakland County simply through anecdotal “evidence” in the form of affidavits submitted by Plaintiffs regarding current conditions of the jail
26

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.834 Page 27 of 49
only. Plaintiffs’ sole reliance on the present conditions of the jail are fatal with respect to any Monell claim asserted and thus there is no likelihood of success on the merits.
1. Plaintiffs’ Cannot Establish The Requisite Underlying Constitutional Violation Because Defendants Are Not Recklessly Disregarding The Risk Posed by COVID-19
Plaintiff must first show an underlying constitutional violation. SL v Pierce Twp Bd of Trustees, supra. The United States Supreme Court has held, “the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling v McKinney, 509 US 25, 31; 113 S Ct 2475 (1993). In regard to an inmates conditions of confinement, the Supreme Court noted that jail conditions may be “restrictive and even harsh.” Rhodes v Chapman, 452 US 337, 347; 101 S Ct 2392 (1981). “The Constitution does not mandate comfortable prisons.” Rhodes v Chapman, 452 US 337, 349 (1981). It is well settled that pursuant to the Eighth Amendment of the United States Constitution, a prison official must “take reasonable measures to guarantee the safety of the inmates.” Hudson v Palmer, 468 US 517, 526-527; 104 S Ct 3194 (1984). To raise a cognizable constitutional claim for deliberate indifference to an inmate's safety, an inmate must make a two-part showing: (1) the alleged mistreatment was objectively serious; and (2) the defendant subjectively ignored the risk to the inmate's safety.
27

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.835 Page 28 of 49
Farmer v Brennan, 511 U.S. 825, 834; 114 S.Ct. 1970 (1994). With respect to the first element, only extreme deprivations can be
characterized as punishment prohibited by the Eighth Amendment. Hudson v McMillan, 503 US 1, 8-9 (1992). An extreme deprivation is one “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner must show that the risk of which he complains is not one that today’s society chooses to tolerate.” Helling, 509 US at 36 (emphasis in original).
In regard to the second element discussed above, the United States Supreme Court has held that in order for a plaintiff to be successful in his deliberate indifference claim, he must show the prison official possessed a state of mind “more blameworthy than negligence.” Id. The Farmer Court also noted that “acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding the risk.” Id. Importantly, the reckless standard is not one of objectivity. Id at 837-838. Instead, a plaintiff must show the prison officer “consciously disregarded,” a substantial risk of harm. Id at 839. The Sixth Circuit has likewise acknowledged that a plaintiff must show defendant subjectively ignored a risk that was objectively serious. Leary v Livingston County, 528 F3d 438, 442 (6th Cir.2008).The prison official's state of mind must
28

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.836 Page 29 of 49
evince “deliberateness tantamount to intent to punish.” Miller v. Calhoun Cty., 408 F.3d 803, 812–13 (6th Cir. 2005) (citing Horn v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th Cir.1994)).“[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838, 114 S.Ct. 1970. Deliberate indifference is more than “mere negligence or malpractice.” Bowman v Corrections Corp of Am, 350 F3d 537, 544 (6th Cir.2003). It is tantamount to a finding of criminal recklessness. Farmer, 511 US at 837. In the prison setting, it requires a showing “approaching total unconcern for the prisoner’s welfare.” Rosario v Brown, 670 F3d 816, 821 (7th Cir. 2012).
Deliberate indifference claims are the same under the Eighth and Fourteenth Amendments. Ford v Cnty of Grand Traverse, 535 F3d 483, 494-95 (6th Cir.2008); Hanner v City of Dearborn Heights, 450 Fed Appx 440, 447 (6th Cir.2011) (“Similar rights are guaranteed to pretrial detainees by the Due Process Clause of the Fourteenth Amendment, which provides the same deliberate indifference standard of care as the Eighth Amendment”), Goebert v Lee County, 510 F3d 1312, 1326 (11th Cir.2007) (“the standards under the Fourteenth Amendment are identical to those under the Eighth.”).
In the COVID-19 context, the Money court denied plaintiffs’ request for a TRO
29

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.837 Page 30 of 49
when plaintiffs made nearly identical allegations and requests to Plaintiffs in the
instant case. Money, at *2-3. In determining plaintiffs had “no chance of success” on
the merits of their claim, the court held:
Clearly Defendants are trying, very hard, to protect inmates against the virus and to treat those who have contracted it. The record simply does not support any suggestion that Defendants have turned the kind of blind eye and deaf ear to a known problem that would indicate “total unconcern” for the inmates’ welfare. Rosario, 670 F3d at 821. Nor would the record support any claim that Defendants lack a plan for implementing exactly what Plaintiffs have requested - individualized decisions on release through a panoply of vehicles guided by administrative discretion. It may not be the plan that the Court would choose, if it were sufficiently informed to offer an opinion on the subject. But the Eighth Amendment does not afford litigants and courts an avenue for de novo review of the decisions of prison officials, and the actions of Defendants here in the face of the COVID-19 easily pass constitutional muster. Id at *18.
Plaintiffs cannot show that Defendants have been deliberately indifferent to
their needs and thus are unable to show a strong likelihood of success on the merits
of their Eighth and Fourteenth Amendment claims because the overwhelming
evidence establishes Defendants previously put into place nearly all of Plaintiffs’
requests and the subsequent requirements of the Court’s TRO at the jail. This is in
addition to the efforts to proactively reduce the inmate population that occurred in
March before any inmate had tested positive for COVID-19. Specifically,101 inmates
were released by state judges after being identified by OCSO in correspondence to
30

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.838 Page 31 of 49
the respective judges. (Exhibit B, ¶ 28). Moreover, jail inmate population has been reduced by 481 inmates (1332 - 742) from March 17 through April 17. (Exhibit I; Exhibit O).As of April 17, OCJ was at 44% of its total capacity. Although each individual reacts differently to the virus, fortunately no inmate has been admitted to a hospital due to COVID-19 related symptoms and no inmate has died as a result of COVID-19. Most importantly, the measures taken by OCSO long before the first confirmed COVID-19 case in the jail and long before Plaintiffs’ filed the instant action, establish they have not “turned the kind of blind eye and deaf ear to a known problem that would indicate total unconcern for the inmates’ welfare.” Id.
Again, Defendants emphasize the parties have agreed to a stipulation that addresses the vast majority of Plaintiffs’ requested TRO. Defendants contend the TRO should be rescinded in light of this stipulation. Defendants will address each aspect of Plaintiff’s TRO for purposes of completeness below.
A. Liquid Hand Soap/Disinfectant Products Prior to the Court’s Order, OCJ practices included providing hand soap in all cells. (Exhibit B, ¶ 5). Two bars of soap are provided to inmates two times per week. (Exhibit B, ¶ 5). Additionally, jail personnel provide disinfectant products (“DMQ”) when requested and no less than three times per day to each cell in the jail. (Exhibit B, ¶ 6). The jail provides a clean towel and wash cloth to each inmate weekly.
31

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.839 Page 32 of 49
(Exhibit B, ¶ 29). The jail does not provide paper towels to inmates due to concerns with regard to plumbing issues associated with the towels being flushed down the toilet. (Exhibit B, ¶ 30).
Plaintiffs take issue with OCJ’s practices of providing hand soap, a wash cloth and a towel for purposes of hygiene. According to Plaintiffs, liquid soap and paper towels should be provided. Plaintiffs have not and cannot provide any authority to establish that OCJ’s policies referenced above amount to deliberate indifference or are likely to amount to deliberate indifference. Courts have previously held inmates are not entitled to a specific type of soap. Burke v Dep’t of Correction, 2016 WL 4120063 at *4 (M.D. Tenn August 3, 2016) report and recommendation adopted, 2016 WL 4527274 (M.D. Tenn. August 30, 2016) (holding allegations related to hygienic products including chosen type of soap do not satisfy objective prong of Eighth Amendment claim). Plaintiffs need to show that by only providing bar soap multiple times per week (and by request), Defendants have subjected Plaintiffs to “deliberateness tantamount to intent to punish.” Miller, supra. This is impossible considering the above referenced authority and current CDC recommendations which state that correction facilities should “provide a no-cost supply of soap to incarcerated/detained person, sufficient to allow frequent hand washing.” (Exhibit N, Excerpt of CDC Recommendations). This is done by OCSO. While the
32

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.840 Page 33 of 49
recommendations state liquid soap should be provided “where possible,” the guidelines also allow for bar soap to be used. (Exhibit N). The fact that Plaintiffs cannot meet this threshold is highlighted further considering the additional deference the United States Supreme Court has held is owed to prison officials. Turner, supra. Therefore, any request for a TRO in regard to liquid bar soap and paper towels should be denied.
B. Hand Sanitizer This issue was previously addressed by the Court and removed from the stipulation per the Court’s instruction. Defendants do not allow for inmates to possess hand sanitizer and vehemently object to same. The OCJ previously provided inmates with access to sanitizer. (Exhibit B, ¶ 18). Unfortunately, on October 23, 2019, a serious incident occurred involving inmates making alcoholic drinks from hand sanitizer. (Exhibit B, ¶ 18; Exhibit D Incident Report). As a result, several inmates became ill including one inmate who became unresponsive and required hospitalization. (Exhibit D, p. 28). Consequently, any future release of hand sanitizer potentially places inmates at a serious risk to their own health and safety. In addition, because Defendants are on notice of same, they potentially face exposure and liability in the form of a substantive due process claim to the extent an inmate becomes ill due to Defendants providing hand sanitizer to them.
33

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.841 Page 34 of 49
C. Access to Showers/Clean Laundry Inmates in the main jail receiving area are given showers three times per week. (Exhibit B, ¶ 5). Inmates in the annex have daily access to showers. (Exhibit B, ¶ 5). Inmates are given clean laundry once per week. (Exhibit B, ¶ 8). Plaintiffs cannot demonstrate criminal recklessness or an intent to punish. Miller, Farmer, supra.
D. PPE for Jail Staff All jail personnel have been issued masks and gloves. (Exhibit B, ¶ 12). Additionally, N95 masks and face shields have been issued to correctional staff who have contact with inmates who have testified positive for COVID-19. (Exhibit B, ¶ 12). Plaintiffs cannot demonstrate criminal recklessness or an intent to punish. Miller, Farmer, supra.
E. Jail Staff Hygiene Efforts Defendants have taken steps to ensure jail personnel wash their hands with soap and water both before and after touching any person or surface in cells or common areas. (Exhibit B, ¶ 24). This includes signs posted throughout the Jail for all personnel to observe. (Exhibit B, ¶ 24). Jail personnel have access to both soap and water to be used at their disposal. (Exhibit B, ¶ 24). Plaintiffs cannot demonstrate criminal recklessness or an intent to punish. Miller, Farmer, supra.
F. Protocol to Report Symptoms
34

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.842 Page 35 of 49
With regard to inmates’ communication with medical staff, sick call slips are distributed to the inmates daily and picked up every morning by medical staff. (Exhibit F, ¶ 3). Sick call slips are the protocol for inmates to self-report COVID-19 symptoms. (Exhibit F, ¶ 3). Individuals who are displaying COVID-19 symptoms are seen daily by the medical staff and assessed accordingly. (Exhibit F, ¶ 3). A full set of vitals is taken once per day. (Exhibit F, ¶ 3). Temperature is taken by the day, afternoon and midnight medical shifts and therapeutics are administered as needed. (Exhibit F, ¶ 3). Plaintiffs cannot demonstrate criminal recklessness or an intent to punish. Miller, Farmer, supra.
G. Testing of COVID-19 Defendants have and continue to test all inmates who display known symptoms of COVID-19. (Exhibit F, ¶ 15). As of April 18, 2020, 242 COVID-19 tests have been administered to inmates through swab testing. (Exhibit F, ¶ 15). Of the 242 tests performed, only 36 inmates have tested positive for COVID-19. (Exhibit F, ¶ 15). Five (5) of the positive inmates have been released from custody, seven (7) recovered and returned to general population and 24 remain quarantined in the pod designated for COVID-19 positive inmates. (Exhibit F, ¶ 15). Plaintiffs cannot demonstrate criminal recklessness or an intent to punish. Miller, Farmer, supra.
35

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.843 Page 36 of 49
H. Adequate Spacing This component of the requested TRO was also previously addressed and resolved by the Court. With regard to social distancing, the CDC guidelines expressly recognize the impracticality of providing six (6) feet of spacing for social distancing in correctional facilities. (Exhibit B, ¶ 3) And, recognizing the guidelines provide that the six (6) foot spacing strategy has to “…be tailored to the individual space in the facility…” (Exhibit B, ¶ 3) The OCSO has implemented several CDC strategies to reduce COVID-19 transmission by, 1) limiting recreational activities, 2) providing outside catered meals in the housing units or cells, 3) suspending group programs and 4) reducing the number of inmates in group cells where room and classification permit. (Exhibit B, ¶ 3). In addition, the OCSO closed one pod to provide for overflow of newly arrested inmates to allow them fourteen (14) days quarantine, together with the separation of these new inmates into pairs of two. (Exhibit B, ¶ 3) Extraordinary efforts have been made to both reduce overall jail occupancy as well as reduce the number of inmates in group cells. (Exhibit B, ¶ 3) Jail occupancy in joint cells has been reduced by 56%. The remaining jail population consists of single and double cell occupancy. (Exhibit B, ¶ 3). Plaintiffs cannot demonstrate criminal recklessness or an intent to punish. Miller, Farmer, supra.
36

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.844 Page 37 of 49
I. Quarantine of Positive Cases Inmates who test positive are immediately quarantined from other inmates. (Exhibit B, ¶ 4). There is one specific pod in the jail that has been designated for COVID-19 positive inmates only. (Exhibit B, ¶ 4). These inmates have access to showers, mental health services, reading materials, phone and video calling, communications with counsel and personal property. (Exhibit B, ¶ 4). Inmates who are positive for COVID-19 remain in quarantine for 14 days. (Exhibit B, ¶ 4). Plaintiffs cannot demonstrate criminal recklessness or an intent to punish. Miller, Farmer, supra.
J. Response To Emergencies within an Hour All medical emergencies receive immediate response from jail personnel. (Exhibit F, ¶ 6). Plaintiffs cannot demonstrate criminal recklessness or an intent to punish. Miller, Farmer, supra.
K. Disinfecting Supplies See subparagraph (A) above.
L. Communication Regarding COVID-19 Communication including written postings consistent with CDC recommendations have been posted and/or distributed throughout the Jail. (Exhibit B, ¶ 17; Exhibit C). The communications advise inmates of the steps taken by jail
37

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.845 Page 38 of 49
personnel as it pertains to COVID-19. (Exhibit B, ¶ 17). The posting was posted throughout the jail as early as March 11, 2020 and prior to any confirmed cases inside the jail. (Exhibit B, ¶ 17). Medical staff, including a doctor or nurse practioner, are visiting each housing area Monday-Friday at which time they are constantly interacting with the inmate population and providing lengthy verbal education regarding the importance of self-reporting COVID-19 symptoms. (Exhibit F, ¶ 4). Plaintiffs cannot demonstrate criminal recklessness or an intent to punish. Miller, Farmer, supra.
M. Training of Staff Consistent with CDC recommendations, signs are posted throughout the facility reminding jail personnel they are required to wash their hands with soap and water as frequently as possible. (Exhibit B, ¶ 24). The signs also instruct the staff on the proper method and manner to wash their hands. (Exhibit B, ¶ 24). Additionally, as noted above, each housing area is visited by a doctor or nurse practioner MondayFriday. (Exhibit F,¶ 4). Plaintiffs cannot demonstrate criminal recklessness or an intent to punish. Miller, Farmer, supra.
N. Medical Co-Pays Defendants have waived all charges related to medical co-pays related to COVID-19 related symptoms and/or treatment which includes testing of same.
38

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.846 Page 39 of 49
(Exhibit B, ¶ 23). Plaintiffs cannot demonstrate criminal recklessness or an intent to punish. Miller, Farmer, supra.
O. Waiver of charges for Medical Grievances There are no charges for grievances during the pandemic. (Exhibit B, ¶ 22). Plaintiffs cannot demonstrate criminal recklessness or an intent to punish. Miller, Farmer, supra.
P. Punitive Transfers/Retaliation Defendants have never engaged in punitive transfers or threats of transfers to areas of the jail that have higher infection rates for any infraction. (Exhibit B, ¶ 10, 15). As indicated above, inmates who have tested positive are quarantined in a pod that is separate from all those who are not positive for COVID-19. (Exhibit B, ¶ 4). Plaintiffs cannot demonstrate criminal recklessness or an intent to punish. Miller, Farmer, supra.
Q. CDC Recommendations On March 23, 2020, the Center for Disease Control (“CDC”) issued “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correction and Detention Centers. (ECF 17 Pg. ID 166, Pgs. 1- 27) Recognizing it is neither feasible nor practical to implement all recommendations, the CDC expressly authorizes Correction and Detention Centers to implement the recommendations
39

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.847 Page 40 of 49
according to the “specific needs of…” their facility. Id pg. 4 of 27. This guidance encompasses, among other things, “Prevention” and “Management” of the Covid-19 virus in the inmate population.
CDC “Prevention” guidelines are intended to assist facilities in preventing the spread of the virus from outside the facility to inside the facility.
CDC “Management” guidelines are intended to assist facilities in clinically managing confirmed and suspected COVID-19 cases inside the facility. Id pg. 6 of 27.
The OCSO had already implemented all feasible CDC recommendations relating to inmate safety long before the subject suit. PREVENTION
Among the recommendations for prevention, the CDC suggest “Cleaning and Disinfecting Practices” be intensified. These recommendations include cleaning and disinfecting surfaces several times a day. Id pg. 10 of 27. Long before this suit was filed, the OCSO implemented new procedures requiring cleaning and disinfecting all surfaces identified in the CDC recommendation three (3) times a day. In accord with this new policy, all inmate Trusties and custodial staff clean common areas three (3) times a day with approved disinfectant products. Inmates are given all necessary cleaning supplies to clean their respective cells after each of their three (3) meal. In
40

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.848 Page 41 of 49
addition, they are advised that cleaning supplies are readily available and are encouraged to “use them as often as possible”. (Exhibit B, ¶ 5, 6, 19; Exhibit C).
In accord with the CDC recommendations to use “household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19” [Id pg. 10 of 27] the OCSO uses DMQ® a United States Environmental Protection Agency (“EPA”) EPA registered disinfectant. Id. (Exhibit G, EPA registration documentation).
In addition to the use of EPA registered cleaning agents, OCSO has also implemented Ultraviolet Germicidal Irradiation (UVGI) technology to supplement cleaning in the jail environment. (Exhibit C). This technology has become routinely used in a variety of industries to combat COVID-193.
The OCSO has implemented the CDC recommendation for posting signage throughout the facility. (Exhibit C). In addition, Monday through Friday, each housing area in the facility is visited by a doctor or nurse practioner at which time they are constantly interacting with the inmate population and providing lengthy verbal education regarding the importance of self-reporting COVID-19 symptoms. Id pgs. 11& 12 of 27; (Exhibit F, ¶ 4).
3 For example, see; Effects of Ultraviolet Germicidal Irradiation (UVGI) on N95 Respirator Filtration Performance and Structural Integrity, J Occup. Environ Hyg. 2015; 12(8): 509–517; N95 Filtering Facemask Respirator Ultraviolet Germicidal Irradiation (UVGI) Process for Decontamination and Reuse; Nebraska Medicine, John J Lowe, Katie D Paladino, et al.
41

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.849 Page 42 of 49
Inmates are given, free of charge, individual bar soap, running water and towels to wash frequently consistent with CDC recommendations. (Exhibit B, ¶ 5). While Plaintiffs would have the OCSO provide hand sanitizer to inmates, the CDC recognizes the inherent danger of inmate intoxication posed by giving inmates a product containing 60% or more alcohol by volume. This is why the CDC only recommends hand sanitizer if there is no “soap and water” available to the inmates and only if security concerns allow. Id pg. 8 of 27. The principal security concern for dispensing hand sanitizer to inmates is “inmate intoxication.” Mixing salt with hand sanitizer is known to convert the semi liquid sanitizer to a liquid form for ease of consumption. In October of 2019, inmates were found to have consumed hand sanitizer mixed with rock salt, antifreeze and Kool Aid®. One of the seven (7) was found breathing but unresponsive, even to painful stimuli. (Exhibit D). He was lifted from his top bunk and immediately transported by ALS to the McLaren Oakland Emergency Department. (Exhibit D). Poison control advised the remaining six (6) were to be monitored over the next several hours. (Exhibit D).
In accord with CDC guidelines, the OCSO has implemented a new “pre-intake screening” practice which includes identifying new inmates with COVID-19 complaints and taking all new inmates’ temperature. Id pg. 11 of 27. Consistent with the guidelines, OCSO further segregates all new inmates for fourteen (14) days to
42

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.850 Page 43 of 49
determine if they develop COVID-19 symptoms or later test positive. Id pg. 15 of 27; (Exhibit B ¶ 3). The OCSO also provides all inmates as well as new arrestees with a letter explaining the concerns and policies governing COVID-19 protections in the jail. (Exhibit H).
The CDC guidelines expressly recognize the impracticality of providing six (6) feet of spacing for social distancing in correctional facilities. The guidelines provide that this strategy [six (6) foot spacing] will have to “…be tailored to the individual space in the facility…” and “[n]ot all strategies will be feasible in all facilities…” Consequently, the six (6) foot spacing is only one of several strategies that may be considered for implementation. Id pg. 12 of 27. The OCSO has implemented several CDC strategies to reduce transmission by; limiting recreational activities, suspending group programs and reducing the number of inmates in group cells where room and classification permit. Id; (Exhibit B, ¶ 3).
Long before the subject litigation, the OCSO closed one pod to provide for overflow of newly arrested inmates to allow them fourteen (14) days quarantine, together with the separation of these new inmates into pairs of two. (Exhibit B, ¶ 3). Extraordinary efforts have been made to both reduce overall jail occupancy as well as reduce the number of inmates in group cells. Jail occupancy in joint cells has been
43

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.851 Page 44 of 49
reduced by 56%. The remaining jail population consists of single and double cell occupancy. (Exhibit I).
The OCSO began its efforts to prevent and managed against the spread of COVID-19 in compliance with CDC recommendations and as a part of its own independent policies long before this litigation4.
MANAGEMENT
Consistent with CDC guidelines, the OCSO has been “medically isolate[ing]” all inmates diagnosed with COVID-19 [Id pgs. 16 of 27], and “quarantine[ing]” all inmates with any symptoms of COVID-19 [Id pgs.20 of 27] regardless of their status in the jail5. All medically isolated or quarantined inmates remain in their cohort until CDC related criteria have been met or they are eligible for release6. Id pgs. 18 & of 27. Simply put, OCSO has taken extraordinary efforts to comply with the available CDC guidelines at a time of national pandemic. As such, the Court’s determination
4
In addition to the affidavits of Childs and Warren, attached as Exhibit M is the Affidavit of Sgt. Ryan Terry which sets forth the efforts to prevent COVID-19 transmission in the East Annex. The Court should be aware that the East Annex has not experienced a single positive case of COVID-19.
5 The CDC recognizes that Correctional and Detention facilities often lack the physical ability to provide single cell locations for medical isolation and/or quarantine. Consequently, the CDC provides that confirmed COVID cases can be “medically isolated” as a “…cohort, in a large, well ventilated cell with solid walls but without a solid door. Id pgs. 16 of 27. Quarantined inmates can be maintained in as a “...cohort in a multi person cell without a solid wall or solid door…” Id pgs. 21 of 27
6
However, it is not feasible to obtain two (2) negative tests in 24 hours pursuant to guidelines because of the unavailability of test kits.
44

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.852 Page 45 of 49
that Plaintiffs’ have shown a strong likelihood of success contained a palpable defect and should be reversed.
2. Plaintiff is Unable to Show an Unconstitutional Policy or Practice That Caused an Alleged Violation of Their Constitutional Rights
The Sixth Circuit set forth the elements of a claim for municipal liability under Monell in Alkire v. Irving, 330 F.3d 802 (6th Cir. 2003). To demonstrate municipal liability, Plaintiffs must (1) identify the municipal policy or custom, (2) connect the policy to the municipality, and (3) show that their particular injury was incurred due to the execution of that policy. Id. at 815. The Monell standard is recognized as a “high standard.” Ruiz-Cortez v City of Chicago, 931 F3d 592, 595 (7th Cir. 2019); Snyder v Trepagnier, 142 F3d 791, 796 (5th Cir.1998); Knowlton v Richland County, Ohio, 2017 WL 5649597 (N.D. Ohio, 2017). Plaintiffs have not identified any policy or custom of Oakland County that caused a violation of their constitutional rights and have not made any showing they are unable to satisfy the “high standard” of Monell claims.
As stated in Thomas v. City of Chattanooga, 398 F.3d 426, 432-433 (6th Cir. 2005):
The danger in appellants’ argument is that they are attempting to infer a municipal-wide policy based solely on one instance of potential misconduct. This argument, taken to its logical end, would result in the collapsing of the municipal liability standard into a simple
45

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.853 Page 46 of 49
respondeat superior standard. This path to municipal liability has been forbidden by the Supreme Court. Monell, 436 U.S. at 694. (emphasis supplied). Most recently, the Sixth Circuit has confirmed Monell claims require more than allegations regarding plaintiffs’ specific incident. In Stewart v City of Memphis, 788 Fed Appx 341, 347-48 (6th Cir. 2019) the court held, “Arguing that one instance of potential misconduct is evidence of a clear and persistent pattern is a path to municipal liability [that] has been forbidden by the Supreme Court.” Id. Courts have noted sole reliance on plaintiffs’ own incident is improper as it does not provide the municipality with “notice” of the “alleged illegal activity.” Butts v City of Bowling Green, 374 F Supp 2d 532, 539 (W.D. Kentucky 2005). Plaintiffs’ claim here is attempting to do exactly what well established precedent forbids. Thomas, Stewart, supra. Plaintiffs fail to identify any other circumstances to support the claim that there is a policy that results in a constitutional violation. Indeed, the only claim referenced in Plaintiffs’ Complaint references the instant pandemic and the associated jail conditions related to the pandemic. There are no references nor allegations regarding past conditions of the jail. There are no references nor allegations regarding past unconstitutional conduct. As discussed above, it is not surprising Plaintiffs are unable to show a likelihood of success considering the novelty of the epidemic and similarly the epidemic as it applies to the
46

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.854 Page 47 of 49
carceral setting. Regardless, Plaintiffs have not made a showing they are likely to succeed on the merits of their Monell claim and consequently there is no basis for a TRO. Thomas, supra. III. Claims against Bouchard and Childs Should Be Dismissed
The United States Supreme Court has noted an individual sued in his official capacity has no stake, as an individual, in the outcome of the litigation. Bender v Williamsport Area Sch Dist, 475 US 534, 543-544 (1986). Official capacity suits are deemed to be claims made against the governmental entity that employs the individual sued in his or her official capacity. Kentucky v Graham, 473 US 159, 165-68 (1985); Barber v. City of Salem, Ohio, 953 F.2d 232, 237 (6th Cir. 1992).
Plaintiffs’ Petition/Complaint contains claims against Bouchard and Childs in their official capacity only. (R.1, ¶¶ 17, 18). Plaintiffs’ Petition/Complaint also contains the same substantive claims against Oakland County. Because the official capacity claims are deemed to be claims against the governmental entity that employs Bouchard and Child (i.e. Oakland County), the official capacity claims are superfluous, duplicative and redundant of their claims against Oakland County. Barber, supra. Thus, the claims against Bouchard and Childs should be dismissed. Id.
47

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.855 Page 48 of 49
CONCLUSION Defendants, prison officials, are entitled to great deference in the operation of prison facilities. Federal courts are instructed not to involve themselves with the administration of state prison facilities. Plaintiffs’ habeas petition fails because Plaintiffs have failed to exhaust the required state remedies, satisfy the conditions of the PLRA and because habeas petitions are not available for Eighth and Fourteenth Amendment claims. Plaintiffs are not entitled to a TRO because there is no likelihood of success in regard to their substantive claim(s) against Oakland County. Numerous proactive measures were taken prior to an inmate testing positive for COVID-19 and well before the commencement of this action. These measures preclude any showing of deliberate indifference. Moreover, Plaintiffs are unable to show an unconstitutional policy caused or likely caused a constitutional violation due to the uniqueness of the COVID-19 epidemic combined with Plaintiffs’ sole reliance on their own situation.
48

Case 2:20-cv-10949-LVP-MJH ECF No. 30 filed 04/23/20 PageID.856 Page 49 of 49

RELIEF REQUESTED

WHEREFORE, Defendants respectfully request that this Honorable Court dismiss Plaintiffs’ Habeas Petition, claims asserted against Bouchard and Childs, rescind its April 17, 2020, Opinion and Order granting Plaintiffs’ Motion for Temporary Restraining Order and deny Plaintiffs’ Motion for Temporary Restraining Order for the reasons set forth above.

Dated: April 23, 2020

Respectfully submitted,
POTTER DeAGOSTINO O’DEA & CLARK
s/ STEVEN M. POTTER (P33344) s/ ROBERT C. CLARK (P76359) Attorney for Defendants 2701 Cambridge Court, Suite 223 Auburn Hills, Michigan 48326 (248) 377-1700 spotter@potterlaw.com

CERTIFICATE OF SERVICE
I hereby certify that on April 23, 2020, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to the attorneys of record, and I hereby certify that I have mailed by United States Postal Service the paper to the following non-ECF participants: N/A.
/s/ STEVEN M. POTTER (P33344) Attorney for Defendants 2701 Cambridge Court, Suite 223 Auburn Hills, Michigan 48326 (248) 377-1700 spotter@potterlaw.com

49

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.857 Page 1 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.858 Page 2 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.859 Page 3 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.860 Page 4 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.861 Page 5 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.862 Page 6 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.863 Page 7 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.864 Page 8 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.865 Page 9 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.866 Page 10 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.867 Page 11 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.868 Page 12 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.869 Page 13 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.870 Page 14 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.871 Page 15 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.872 Page 16 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.873 Page 17 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.874 Page 18 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.875 Page 19 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.876 Page 20 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-1 filed 04/23/20 PageID.877 Page 21 of 21

Case 2:20-cv-10949-LVP-MJH ECF No. 30-2 filed 04/23/20 PageID.878 Page 1 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-2 filed 04/23/20 PageID.879 Page 2 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-2 filed 04/23/20 PageID.880 Page 3 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-2 filed 04/23/20 PageID.881 Page 4 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-2 filed 04/23/20 PageID.882 Page 5 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-2 filed 04/23/20 PageID.883 Page 6 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-2 filed 04/23/20 PageID.884 Page 7 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-2 filed 04/23/20 PageID.885 Page 8 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-2 filed 04/23/20 PageID.886 Page 9 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-3 filed 04/23/20 PageID.887 Page 1 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 30-3 filed 04/23/20 PageID.888 Page 2 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.889 Page 1 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.890 Page 2 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.891 Page 3 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.892 Page 4 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.893 Page 5 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.894 Page 6 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.895 Page 7 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.896 Page 8 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.897 Page 9 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.898 Page 10 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.899 Page 11 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.900 Page 12 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.901 Page 13 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.902 Page 14 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.903 Page 15 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.904 Page 16 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.905 Page 17 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.906 Page 18 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.907 Page 19 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.908 Page 20 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.909 Page 21 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.910 Page 22 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.911 Page 23 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.912 Page 24 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.913 Page 25 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.914 Page 26 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.915 Page 27 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.916 Page 28 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.917 Page 29 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.918 Page 30 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.919 Page 31 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.920 Page 32 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-4 filed 04/23/20 PageID.921 Page 33 of 33

Case 2:20-cv-10949-LVP-MJH ECF No. 30-5 filed 04/23/20 PageID.922 Page 1 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 30-5 filed 04/23/20 PageID.923 Page 2 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 30-5 filed 04/23/20 PageID.924 Page 3 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 30-5 filed 04/23/20 PageID.925 Page 4 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 30-5 filed 04/23/20 PageID.926 Page 5 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 30-5 filed 04/23/20 PageID.927 Page 6 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 30-5 filed 04/23/20 PageID.928 Page 7 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 30-5 filed 04/23/20 PageID.929 Page 8 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 30-5 filed 04/23/20 PageID.930 Page 9 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 30-5 filed 04/23/20 PageID.931 Page 10 of 10

Case 2:20-cv-10949-LVP-MJH ECF No. 30-6 filed 04/23/20 PageID.932 Page 1 of 6

Case 2:20-cv-10949-LVP-MJH ECF No. 30-6 filed 04/23/20 PageID.933 Page 2 of 6

Case 2:20-cv-10949-LVP-MJH ECF No. 30-6 filed 04/23/20 PageID.934 Page 3 of 6

Case 2:20-cv-10949-LVP-MJH ECF No. 30-6 filed 04/23/20 PageID.935 Page 4 of 6

Case 2:20-cv-10949-LVP-MJH ECF No. 30-6 filed 04/23/20 PageID.936 Page 5 of 6

Case 2:20-cv-10949-LVP-MJH ECF No. 30-6 filed 04/23/20 PageID.937 Page 6 of 6

Case 2:20-cv-10949-LVP-MJH ECF No. 30-7 filed 04/23/20 PageID.938 Page 1 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-7 filed 04/23/20 PageID.939 Page 2 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-7 filed 04/23/20 PageID.940 Page 3 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-7 filed 04/23/20 PageID.941 Page 4 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-7 filed 04/23/20 PageID.942 Page 5 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-7 filed 04/23/20 PageID.943 Page 6 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-7 filed 04/23/20 PageID.944 Page 7 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-7 filed 04/23/20 PageID.945 Page 8 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-7 filed 04/23/20 PageID.946 Page 9 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-8 filed 04/23/20 PageID.947 Page 1 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 30-8 filed 04/23/20 PageID.948 Page 2 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 30-9 filed 04/23/20 PageID.949 Page 1 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 30-9 filed 04/23/20 PageID.950 Page 2 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 30-10 filed 04/23/20 PageID.951 Page 1 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 30-10 filed 04/23/20 PageID.952 Page 2 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 30-10 filed 04/23/20 PageID.953 Page 3 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 30-10 filed 04/23/20 PageID.954 Page 4 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 30-11 filed 04/23/20 PageID.955 Page 1 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 30-11 filed 04/23/20 PageID.956 Page 2 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 30-11 filed 04/23/20 PageID.957 Page 3 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 30-11 filed 04/23/20 PageID.958 Page 4 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 30-12 filed 04/23/20 PageID.959 Page 1 of 3

Case 2:20-cv-10949-LVP-MJH ECF No. 30-12 filed 04/23/20 PageID.960 Page 2 of 3

Case 2:20-cv-10949-LVP-MJH ECF No. 30-12 filed 04/23/20 PageID.961 Page 3 of 3

Case 2:20-cv-10949-LVP-MJH ECF No. 30-13 filed 04/23/20 PageID.962 Page 1 of 5

Case 2:20-cv-10949-LVP-MJH ECF No. 30-13 filed 04/23/20 PageID.963 Page 2 of 5

Case 2:20-cv-10949-LVP-MJH ECF No. 30-13 filed 04/23/20 PageID.964 Page 3 of 5

Case 2:20-cv-10949-LVP-MJH ECF No. 30-13 filed 04/23/20 PageID.965 Page 4 of 5

Case 2:20-cv-10949-LVP-MJH ECF No. 30-13 filed 04/23/20 PageID.966 Page 5 of 5

Case 2:20-cv-10949-LVP-MJH ECF No. 30-14 filed 04/23/20 PageID.967 Page 1 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 30-14 filed 04/23/20 PageID.968 Page 2 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 30-15 filed 04/23/20 PageID.969 Page 1 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 30-15 filed 04/23/20 PageID.970 Page 2 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.971 Page 1 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.972 Page 2 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.973 Page 3 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.974 Page 4 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.975 Page 5 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.976 Page 6 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.977 Page 7 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.978 Page 8 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.979 Page 9 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.980 Page 10 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.981 Page 11 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.982 Page 12 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.983 Page 13 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.984 Page 14 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.985 Page 15 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.986 Page 16 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.987 Page 17 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.988 Page 18 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.989 Page 19 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.990 Page 20 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.991 Page 21 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-16 filed 04/23/20 PageID.992 Page 22 of 22

Case 2:20-cv-10949-LVP-MJH ECF No. 30-17 filed 04/23/20 PageID.993 Page 1 of 11

Case 2:20-cv-10949-LVP-MJH ECF No. 30-17 filed 04/23/20 PageID.994 Page 2 of 11

Case 2:20-cv-10949-LVP-MJH ECF No. 30-17 filed 04/23/20 PageID.995 Page 3 of 11

Case 2:20-cv-10949-LVP-MJH ECF No. 30-17 filed 04/23/20 PageID.996 Page 4 of 11

Case 2:20-cv-10949-LVP-MJH ECF No. 30-17 filed 04/23/20 PageID.997 Page 5 of 11

Case 2:20-cv-10949-LVP-MJH ECF No. 30-17 filed 04/23/20 PageID.998 Page 6 of 11

Case 2:20-cv-10949-LVP-MJH ECF No. 30-17 filed 04/23/20 PageID.999 Page 7 of 11

Case 2:20-cv-10949-LVP-MJH ECF No. 30-17 filed 04/23/20 PageID.1000 Page 8 of 11

Case 2:20-cv-10949-LVP-MJH ECF No. 30-17 filed 04/23/20 PageID.1001 Page 9 of 11

Case 2:20-cv-10949-LVP-MJH ECF No. 30-17 filed 04/23/20 PageID.1002 Page 10 of 11

Case 2:20-cv-10949-LVP-MJH ECF No. 30-17 filed 04/23/20 PageID.1003 Page 11 of 11

Case 2:20-cv-10949-LVP-MJH ECF No. 30-18 filed 04/23/20 PageID.1004 Page 1 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-18 filed 04/23/20 PageID.1005 Page 2 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-18 filed 04/23/20 PageID.1006 Page 3 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-18 filed 04/23/20 PageID.1007 Page 4 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-18 filed 04/23/20 PageID.1008 Page 5 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-18 filed 04/23/20 PageID.1009 Page 6 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-18 filed 04/23/20 PageID.1010 Page 7 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-18 filed 04/23/20 PageID.1011 Page 8 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-18 filed 04/23/20 PageID.1012 Page 9 of 9

Case 2:20-cv-10949-LVP-MJH ECF No. 30-19 filed 04/23/20 PageID.1013 Page 1 of 3

Case 2:20-cv-10949-LVP-MJH ECF No. 30-19 filed 04/23/20 PageID.1014 Page 2 of 3

Case 2:20-cv-10949-LVP-MJH ECF No. 30-19 filed 04/23/20 PageID.1015 Page 3 of 3

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 29 filed 04/23/20 PageID.802 Page 1 of 6

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON, RICHARD BRIGGS, RAJ LEE, MICHAEL CAMERON, and MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,

Plaintiffs, v.

Civil Case No. 20-10949 Honorable Linda V. Parker

MICHAEL BOUCHARD, CURTIS D. CHILDS, and OAKLAND COUNTY,

Defendants. ____________________________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR RECONSIDERATION

On April 17, 2020, Plaintiffs filed a putative class action complaint, raising

concerns about the conditions in the Oakland County Jail in the face of the novel

coronavirus (COVID-19) pandemic. Plaintiffs seeks to represent a class of all

current and future Oakland County Jail (“Jail”) detainees, as well as three sub-

classes. One of those sub-classes (the “Medically-Vulnerable Subclass”) consists

of Class members who are at particular risk of contracting coronavirus due to their

age (Plaintiffs use fifty-years old) or underlying medical condition. Plaintiffs also

filed an emergency motion for temporary restraining order (“TRO”) in which they

ask the Court to order (a) the release of members of the Medically-Vulnerable

Case 2:20-cv-10949-LVP-MJH ECF No. 29 filed 04/23/20 PageID.803 Page 2 of 6
Subclass pending briefing and argument and (b) the undertaking of certain measures to improve hygiene and safety at the Jail.
On April 17, 2020, the Court entered a TRO requiring Defendants to adopt certain measure to improve hygiene and safety at the Jail. The Court also ordered Defendants to “[p]romptly provide Plaintiffs and the Court with a list of all individuals who are members of the Medically-Vulnerable Subclass … which includes their location, charge and bond status” and a list of those subclass members who Defendants object to releasing and the reason(s) for that objection. Nevertheless, the Court indicated in its decision that “it is without sufficient information to rule on Plaintiffs’ request to release all members of the MedicallyVulnerable Subclass” and had scheduled a hearing to address that request (as well as other matters). 1 Defendants filed a motion for reconsideration on April 20, 2020.
In their motion, Defendants dispute Plaintiffs’ representations concerning the conditions at the Jail. Defendants argue that Plaintiffs—who have been convicted of crimes involving theft and dishonesty—lack credibility. According to Defendants, they adopted the measures set forth in the Court’s TRO before this lawsuit was filed, with the exception of providing hand sanitizer to inmates and the spacing of inmates. Defendants maintain that hand sanitizer poses a security risk
1 The Court has since cancelled the hearing. 2

Case 2:20-cv-10949-LVP-MJH ECF No. 29 filed 04/23/20 PageID.804 Page 3 of 6
and that spacing inmates six feet or more apart is impracticable. Later, Defendants argue that because they already adopted the safety measures sought by Plaintiffs and ordered by the Court, Plaintiffs cannot establish the elements of their Eighth and Fourteenth Amendment claims.
Defendants also challenge the Court’s finding that Plaintiffs are likely to succeed on the merits of their Eighth and Fourteenth Amendment claims because those claims are asserted as part of a habeas petition. To the extent the Court contemplated releasing Jail inmates, Defendants argue that it lacks the authority to do so. Moreover, Defendants indicate that Plaintiffs have failed to exhaust the required available state remedies prior to seeking such relief in federal court.
To succeed on a motion for reconsideration, “[t]he movant must not only demonstrate a palpable defect . . . but also show that correcting the defect will result in a different disposition of the case.” E.D. Mich. LR 7.1(h)(3). Palpable defects are those which are “obvious, clear, unmistakable, manifest or plain.” Mich. Dep’t of Treasury v. Michalec, 181 F. Supp. 2d 731, 734 (E.D. Mich. 2002). Similarly, motions to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e) may be granted only if there is a clear error of law, newly discovered evidence, an intervening change in controlling law, or to prevent manifest injustice. GenCorp., Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999).
3

Case 2:20-cv-10949-LVP-MJH ECF No. 29 filed 04/23/20 PageID.805 Page 4 of 6
As this Court emphasized to the parties during the April 20, 2020 status conference—and as stated in its Amended Opinion and Order—it assumed the factual allegations in Plaintiffs’ Complaint as true when ruling on their emergency motion for a TRO. Rule 65 of the Federal Rules of Civil Procedure allows a court to grant a TRO ex parte, without briefing or evidentiary submissions by a defendant. In this case, the Court felt a need to act immediately (that is, without hearing from Defendants) in light of COVID-19’s grave risk to Jail inmates. The Court therefore did not commit a palpable defect by failing to consider Defendants’ evidence prior to issuing the order. Nor did it commit a palpable defect by concluding, based on the evidence before it, that Defendants were deliberately indifferent to a serious risk of harm to Plaintiffs and putative class members.
When filing their initial pleading, Plaintiffs did select “petition” to identify their filing. Nevertheless, the pleading is titled “Class Action Complaint” and is filed, at least in part, under 42 U.S.C. § 1983.2 While it may be appropriate for the Court to require Plaintiffs to bifurcate their request for habeas relief under 28 U.S.C. § 2241 and their civil rights claims under § 1983 at some later time (an issue the Court is not now deciding), the Court’s failure to make that request before
2 For that reason, the Clerk of the Court required Plaintiffs to pay the $400 filing. 4

Case 2:20-cv-10949-LVP-MJH ECF No. 29 filed 04/23/20 PageID.806 Page 5 of 6
issuing its TRO did not create a palpable defect, particularly where the Court made no finding with respect to Plaintiffs’ claims and/or requests for relief under § 2241.
It is the lack of such a finding that also renders Defendants’ final arguments meritless when challenging the Court’s TRO decision. Nowhere in the Court’s decision does it suggest that Plaintiffs are likely to succeed on their request for the release of certain Jail inmates. The fact that the Court instructed Defendants to prepare lists relative to inmates who fit within Plaintiffs’ putative MedicallyVulnerable Subclass does not mean that the Court concluded that any inmates should be released in these proceedings.
The Court appreciates Defendants’ arguments as to why they should not be required to provide Plaintiffs with these lists if the Court lacks the authority to eventually release any Jail inmates. During today’s status conference, Plaintiffs stated an additional reason why they will need the lists; nevertheless, the Court does not believe that the lists are needed at this juncture to achieve that stated purpose. For that reason, the Court is granting Defendants’ motion for reconsideration with respect to the order requiring them to produce those lists at this time. The Court will require Defendants to provide the lists to the Court and/or Plaintiffs’ counsel, but only once the Court determines that it has the power to release inmates in this litigation or is convinced that there is some other reason why the lists should be produced.
5

Case 2:20-cv-10949-LVP-MJH ECF No. 29 filed 04/23/20 PageID.807 Page 6 of 6
For the reasons stated, the Court is GRANTING IN PART AND DENYING IN PART Defendants’ motion for reconsideration in that it is only modifying the order with respect to the provisions requiring Defendants to provide lists identifying the Jail’s inmates falling within Plaintiffs’ putative MedicallyVulnerable sub-class.
IT IS SO ORDERED. s/ Linda V. Parker LINDA V. PARKER U.S. DISTRICT JUDGE
Dated: April 23, 2020
6

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 45 filed 05/01/20 PageID.1419 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON, RICHARD BRIGGS, RAJ LEE, MICHAEL CAMERON, and MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,

Plaintiffs, v.

Civil Case No. 20-10949 Honorable Linda V. Parker

MICHAEL BOUCHARD, CURTIS D. CHILDS, and OAKLAND COUNTY,

Defendants. ____________________________________/

ORDER EXTENDING TEMPORARY RESTRAINING ORDER

On April 17, 2020 this Court entered a temporary restraining order, requiring

Defendants to utilize specific measures to improve hygiene and safety at the

Oakland County Jail in response to the novel coronavirus (“COVID-19). A

hearing is scheduled on Plaintiffs’ request for a preliminary injunction on Monday

May 4, 2020. While the Court hoped to hold the hearing and rule on the motion

before the TRO expires, the virus has prohibited the scheduling of the hearing

before that time. Specifically, the circumstances have made it more difficult for

the parties, particularly Plaintiffs, to meet with and prepare their witnesses and for

the Court to secure the resources to conduct the hearing via videoconferencing.

Case 2:20-cv-10949-LVP-MJH ECF No. 45 filed 05/01/20 PageID.1420 Page 2 of 2
The Court therefore finds good cause to extend the April 17, 2020 TRO for an additional fourteen (14) days.
IT IS SO ORDERED. s/ Linda V. Parker LINDA V. PARKER U.S. DISTRICT JUDGE
Dated: May 1, 2020 at 5:33 p.m.
2

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 85 filed 05/13/20 PageID.2899 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DISTRICT

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,

Case 2:20-cv-10949-LVP-MJH

v.

MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,

Defendants. _________________________________________________________________

DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

NOW COME Defendants, MICHAEL BOUCHARD, CURTIS D. CHILDS and

OAKLAND COUNTY, by and through their attorneys, POTTER DeAGOSTINO

O’DEA & CLARK, and hereby file the following as their Proposed Findings of Fact

and Conclusions of Law.

Case 2:20-cv-10949-LVP-MJH ECF No. 85 filed 05/13/20 PageID.2900 Page 2 of 7
The Court’s TRO found, based upon Plaintiff’s allegations, that OCJ had not imposed even the most basic safety measures recommended by health experts. (ECF No. 21). This factual conclusion has no basis in the record below.
1. Oakland County Jail (“OCJ”) personnel first began meeting regarding COVID-19 (“C-19") at the end of February/beginning of March. (Preliminary Injunction Transcript (“PIT”) Vol. 1, 111:8-12)
2. On March 11th Capt. Childs distributed a memo to the jail staff regarding cleaning to limit the spread within OCJ. (PIT Vol. 2, 190:24-25, 191:1-3, ECF 30-3)
3. On March 13th OCJ stopped all visitation. (PIT Vol. 2, 193:13-22) 4. On March 18th OCJ initiated new arrest screenings for C-19. (PIT Vol. 2, 194:23-195:5) 5. On March 19th OCJ posted a memo from Capt. Childs advising inmates of the risks associated with C-19 and precautions that should be taken. (PIT Vol. 2, 211:5-18, and ECF 30-7) 6. On March 20th OCJ initiated its first prison release program. (PIT Vol. 2, pg 195:20-25, 197:5-25, 198:1) 7. 166 inmate names were sent to state courts for consideration of early release, 42 of these 166 individuals were identified as medically vulnerable. Of the 166, 110 inmates were released, all by state court judges, 27 of whom were medically
1

Case 2:20-cv-10949-LVP-MJH ECF No. 85 filed 05/13/20 PageID.2901 Page 3 of 7
vulnerable. (PIT Vol. 2, 198:6-27, ECF No. 30-1) 8. On March 24th OCJ started quarantining new arrests for 14 days in two-
person cells. (PIT Vol. 2, 195:9-16, 15:14–16:8) 9. OCJ quarantines inmates who have symptoms of C-19 and any inmate
who has had contact with a symptomatic inmate. (PIT Vol. 2, 20:12-19, 25:14-26:2) 10. Inmates who are in symptomatic quarantine are checked three times a day
with a full set of vitals including a temperature check. If an inmate tests positive they are placed in the positive C-19 cells. (PIT Vol. 2, 21:4-11, 21-25, 22:1-13, Vol. 1 127:15-18)
11. Inmates in symptomatic and C-19 positive quarantine are in areas that cannot be accessed from inside the pods. (PIT Vol. 2, 24:16-25, 25:1)
12. When an inmate is quarantined his remaining cell mates and the rest of the cells in his row are quarantined. (PIT Vol. 2, 26:8-15)
13. Quarantine is for 14 days. To be removed from quarantine, an inmate must have a normal temperature for three consecutive days, have no other symptoms and test negative if previously tested positive. (PIT Vol. 2, 26:20-25, 27:1-13)
14. As of March 26, 2020, all jail staff are screened for C-19 symptoms and their temperatures are taken daily. All jail staff are trained in recognizing C-19 symptoms. (PIT, Vol 3A, 61:23-25,62:1-5, ECF No. 77, ECF No. 75)
2

Case 2:20-cv-10949-LVP-MJH ECF No. 85 filed 05/13/20 PageID.2902 Page 4 of 7
15. On April 9th level one masks were distributed to all inmates. (PIT Vol. 2, 209:5-24)
16. On April 7th an additional order of 5,000 cloth masks was made which were distributed after they were received. (PIT Vol. 2, 210:3-13, and ECF No. 74)
17. On April 8th a second prisoner release was discussed by jail staff based upon medical vulnerability. (PIT Vol. 2, 201:12-25, and ECF No. 73)
18. CDC requirements for a correctional facility require the correctional facility to social distance to the extent practical and, when not practical, implement alternative strategies. (PIT Vol. 2, 152:7-10)
19. Prior to the lawsuit OCJ developed alternative strategies to social distancing which included canceling group activities, using prepackaged meals for food service, utilizing a UVI disinfecting machine and cleaning and sanitizing as much as possible. (PIT Vol. 2, 153:11-25, 154:1-4, Vol 3A, 71:21-72:5, ECF 30-2)
20. All inmates have access to a disinfectant called DMQ, which is effective against C-19. It is available to all inmates when requested and provided no less than three times per day during food delivery. (ECF No. 30-2, ECF No. 30-7)
21. From the end of March through the present, Capt. Childs has further attempted to create social distancing by reducing cell numbers dependent upon inmate classification. (PIT Vol. 2, 206:5-24, ECF No. 67 and 68)
3

Case 2:20-cv-10949-LVP-MJH ECF No. 85 filed 05/13/20 PageID.2903 Page 5 of 7
22. As a result of OCJ’s efforts the jail population has been reduced from 1,156 on March 20th to 664 on May 1st. (PIT Vol. 2, 208:17-25, 209:1-4, ECF 67)
23. The onsite jail clinic is staffed 24/7 by medical professionals. (PIT Vol. 2, 42:23-47:14)
24. OCJ’s protocol with regard to inmates advising of any medical condition is to have jail clinic staff pass out sick call slips daily which are collected daily. Inmates can also advise a corrections officer that they need medical attention. (PIT Vol. 1, 123:9-17, Vol. 2, 110:20-23)
25. OCJ has a contract with McLaren Pontiac Hospital to receive inmates who need medical treatment. McLaren has never advised OCJ that they did not have capacity for jail inmates. (PIT Vol. 2, 35:5-16)
26. Jail clinic staff can identify any medically vulnerable inmate who needs special medical treatment which determines where they will be housed. (PIT Vol. 2, 47:17-25, 48:1-25, 49:1-11)
27. After receiving 1,000 test kits from the Oakland County Health Dept., medically vulnerable inmates were identified as a priority to be tested. (PIT Vol. 2, 78:5-11)
28. Since May 1st, the entire inmate population has been tested or refused testing. 468 inmates were tested and 186 refused. Only 3 inmates tested positive. (ECF
4

Case 2:20-cv-10949-LVP-MJH ECF No. 85 filed 05/13/20 PageID.2904 Page 6 of 7
No. 83-1) 29. As of May 6th, the jail had ten current confirmed cases of C-19. No OCJ
inmate has died from C-19 nor required hospitalization. (PIT Vol. 2, 35:17-22, 32:1633:5, ECF No. 30-2)
Applicable Law & Proposed Conclusions of Law 1. “Federal courts do not sit to supervise state prisons, the administration of which is of acute interest to the States.” Meachum v Fano, 427 US 215, 229 (1976) 2. “A preliminary injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it.” Overstreet v. Lexington-Fayette Urban County Government, 305 F.3d 566, 573 (6th Cir. 2003). 3. “It is, indeed, fair to say that acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk.” Farmer v Brennan, 511 US 825, 836 (1994). The prison official's state of mind must evince “deliberateness tantamount to intent to punish.” Miller v Calhoun County, 408 F3d 803, 813 (6th Cir.2005). The Court finds as a matter of law that Plaintiffs have not demonstrated a substantial likelihood of success on the issue of deliberate indifference and that Plaintiffs have failed to meet their burden for a preliminary injunction.
5

Case 2:20-cv-10949-LVP-MJH ECF No. 85 filed 05/13/20 PageID.2905 Page 7 of 7

Dated: May 13, 2020

s/STEVEN M. POTTER (P33344) POTTER, DeAGOSTINO, O’DEA & CLARK Attorneys for Defendants 2701 Cambridge Court, Suite 223 Auburn Hills, Michigan 48326 (248) 377-1700 spotter@potterlaw.com

CERTIFICATE OF SERVICE I hereby certify that on May 13, 2020, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to all participating attorneys.
s/STEVEN M. POTTER (P33344) Attorney for Defendants 2701 Cambridge Court, Suite 223 Auburn Hills, Michigan 48326 (248) 377-1700 spotter@potterlaw.com

6

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2915 Page 1 of 22
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DISTRICT
JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Case 2:20-cv-10949-LVP-MJH Plaintiffs, v.
MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,
Defendants. _________________________________________________________________
DEFENDANTS' ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY
RELIEF AND AFFIRMATIVE DEFENSES
NOW COME Defendants, MICHAEL BOUCHARD, CURTIS D. CHILDS and
OAKLAND COUNTY, by and through their attorneys, POTTER, DeAGOSTINO,
O'DEA & CLARK, and for their Answer to Petition for Writ of Habeas Corpus and
Complaint for Injunctive and Declaratory Relief, hereby state as follows:
1. Defendants lack sufficient information or knowledge upon which to
admit the allegations contained therein and therefore deny same.

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2916 Page 2 of 22
2. In answer to paragraph 2, denied as untrue with regard to the Oakland County Jail.
3. In answer to paragraph 3, denied as untrue with regard to the Oakland County Jail.
4. In answer to paragraph 4, denied as untrue with regard to the Oakland County Jail.
5. Defendants deny the allegations contained therein for the reason they are untrue.
6. Defendants deny the allegations contained therein for the reason they are untrue.
7. Defendants deny the allegations contained therein for the reason they are untrue.
8. No answer is required of Defendants. JURISDICTION AND VENUE
9. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
10. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
2

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2917 Page 3 of 22
PARTIES 11. Defendants deny the allegations contained therein for the reason they are untrue. 12. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same. 13. Defendants deny the allegations contained therein for the reason they are untrue. 14. Defendants deny the allegations contained therein for the reason they are untrue. 15. Defendants deny the allegations contained therein for the reason they are untrue. 16. Defendants deny the allegations contained therein for the reason they are untrue. 17. Defendants admit the allegations contained therein. 18. Defendants deny the allegations contained therein for the reason they are untrue. THE GRAVE RISK OF HARM POSED BY THE COVID-19 PANDEMIC
REQUIRES AN EMERGENCY RESPONSE 19. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
3

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2918 Page 4 of 22
20. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
21. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
22. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
23. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
24. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
25. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
26. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
27. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
28. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
4

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2919 Page 5 of 22
29. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
30. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
INCARCERATED PEOPLE AND CORRECTIONAL STAFF ARE AT HEIGHTENED RISK DURING THE COVID-19 PANDEMIC
31. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
32. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
33. In answer to paragraph 33, denied as untrue with regard to the Oakland County Jail.
34. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
35. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
36. Defendants admit the allegations contained therein. 37. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
5

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2920 Page 6 of 22
38. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
39. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
40. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
41. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
42. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
43. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
44. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
45. Defendants admit the allegations contained therein. 46. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same. 47. Defendants admit the allegations contained therein. 48. Defendants admit the allegations contained therein.
6

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2921 Page 7 of 22
THE COVID-19 PANDEMIC HAS REACHED OAKLAND COUNTY AND SWIFT ACTION IS NEEDED TO PREVENT A MASS OUTBREAK IN THE JAIL 49. Defendants lack sufficient information or knowledge upon which to
admit the allegations contained therein and therefore deny same. 50. Defendants admit the allegations contained therein. 51. Defendants admit the allegations contained therein. 52. Defendants admit the allegations contained therein. 53. Defendants admit the allegations contained therein. 54. Defendants admit the allegations contained therein. 55. Defendants admit the allegations contained therein. 56. Defendants deny the allegations contained therein for the reason they are
untrue. 57. Defendants deny the allegations contained therein for the reason they are
untrue. 58. Defendants lack sufficient information or knowledge upon which to
admit the allegations contained therein and therefore deny same. 59. Defendants lack sufficient information or knowledge upon which to
admit the allegations contained therein and therefore deny same.
7

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2922 Page 8 of 22
60. Defendants deny the allegations contained therein for the reason they are untrue.
61. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
DEFENDANTS' RESPONSES TO THE COVID-19 PANDEMNIC AARE CONSTITUTIONALLY DEFICIENT AND PLACE THE PEOPLE IN ITS
CUSTODY AT HEIGHTENED RISK 62. In answer to paragraph 62, admitted that Defendants are aware of the heightened threat of Covid in jails. 63. Defendants deny the allegations contained therein for the reason they are untrue. 64. Defendants deny the allegations contained therein for the reason they are untrue. 65. Defendants deny the allegations contained therein for the reason they are untrue. 66. Defendants deny the allegations contained therein for the reason they are untrue. 67. Defendants deny the allegations contained therein for the reason they are untrue.
8

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2923 Page 9 of 22
68. Defendants deny the allegations contained therein for the reason they are untrue.
69. Defendants deny the allegations contained therein for the reason they are untrue.
70. Defendants deny the allegations contained therein for the reason they are untrue.
71. Defendants deny the allegations contained therein for the reason they are untrue.
72. Defendants deny the allegations contained therein for the reason they are untrue.
73. Defendants deny the allegations contained therein for the reason they are untrue.
74. Defendants deny the allegations contained therein for the reason they are untrue.
75. Defendants deny the allegations contained therein for the reason they are untrue.
76. Defendants deny the allegations contained therein for the reason they are untrue.
9

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2924 Page 10 of 22
77. Defendants deny the allegations contained therein for the reason they are untrue.
78. Defendants deny the allegations contained therein for the reason they are untrue.
79. Defendants deny the allegations contained therein for the reason they are untrue.
80. Defendants deny the allegations contained therein for the reason they are untrue.
IMMEDIATE RELEASE OF THE MEDICALLY VULNERABLE IS THE ONLY RESPONSE THAT SERVES PUBLIC HEALTH, COMMUNITY
SAFETY, AND THE INDIVIDUAL SAFETY OF EACH SUBCLASS MEMBER
81. Defendants deny the allegations contained therein for the reason they are untrue.
82. Defendants deny the allegations contained therein for the reason they are untrue.
83. Defendants deny the allegations contained therein for the reason they are untrue.
84. Defendants deny the allegations contained therein for the reason they are untrue.
85. Defendants admit the allegations contained therein.
10

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2925 Page 11 of 22
86. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
87. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
88. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
89. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
90. Defendants deny the allegations contained therein for the reason they are untrue.
91. Defendants deny the allegations contained therein for the reason they are untrue.
92. Defendants deny the allegations contained therein for the reason they are untrue.
CLASS ACTION ALLEGATIONS 93. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same. 94. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
11

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2926 Page 12 of 22
95. Defendants deny the allegations contained therein for the reason they are untrue.
96. Defendants deny the allegations contained therein for the reason they are untrue.
97. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
98. Defendants deny the allegations contained therein for the reason they are untrue.
99. Defendants deny the allegations contained therein for the reason they are untrue.
100. Defendants deny the allegations contained therein for the reason they are untrue.
101. Defendants deny the allegations contained therein for the reason they are untrue.
102. Defendants lack sufficient information or knowledge upon which to admit the allegations contained therein and therefore deny same.
103. Defendants deny the allegations contained therein for the reason they are untrue.
12

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2927 Page 13 of 22
104. Defendants deny the allegations contained therein for the reason they are untrue.
DEFENDANTS' FAILURE TO ADEQUATELY MITIGATE AGAINST THE SPREAD OF COVID-19 IS OBJECTIVELY UNREASONABLE AND VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENT RIGHTS
OF PETITIONERS/PLAINTIFFS AND CLASS MEMBERS 105. Defendants deny the allegations contained therein for the reason they are untrue. 106. Defendants admit the allegations contained therein. 107. Defendants deny the allegations contained therein for the reason they are untrue. 108. Defendants deny the allegations contained therein for the reason they are untrue. 109. Defendants deny the allegations contained therein for the reason they are untrue. 110. In answer to paragraph 110, denied as untrue that Defendants are maintaining unconstitutional conditions of confinement. 111. Defendants deny the allegations contained therein for the reason they are untrue. 112. Defendants deny the allegations contained therein for the reason they are untrue.
13

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2928 Page 14 of 22
CLAIMS FOR RELIEF COUNT I: Declaratory and Injunctive Relief for Violation of the Eighth
Amendment (42 U.S.C. § 1983) Jail Class and Post-conviction Subclass versus all Defendants 113. Defendants repeat and reallege Paragraphs 1 through 112 of their Answer as though more fully set forth herein. 114. Defendants admit the allegations contained therein. 115. Defendants admit the allegations contained therein. 116. Defendants deny the allegations contained therein for the reason they are untrue. 117. Defendants deny the allegations contained therein for the reason they are untrue. 118. Defendants deny the allegations contained therein for the reason they are untrue. 119. Defendants deny the allegations contained therein for the reason they are untrue. 120. Defendants deny the allegations contained therein for the reason they are untrue.
14

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2929 Page 15 of 22
COUNT II: Declaratory and Injunctive Relief for Violation of the Fourteenth Amendment (42 U.S.C. § 1983)
Pretrial Subclass versus All Defendants 121. Defendants repeat and reallege Paragraphs 1 through 120 of their Answer as though more fully set forth herein. 122. Defendants admit the allegations contained therein. 123. Defendants deny the allegations contained therein for the reason they are untrue. 124. Defendants deny the allegations contained therein for the reason they are untrue. 125. Defendants deny the allegations contained therein for the reason they are untrue. 126. Defendants deny the allegations contained therein for the reason they are untrue. Count III: Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
Medically-Vulnerable Subclass versus all Defendants Count III of Plaintiffs' Complaint was addressed in Defendants' Motion to Dismiss.
15

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2930 Page 16 of 22
COUNT IV: Declaratory and Injunctive Relief for Violation of the Fourteenth Amendment (42 U.S.C. § 1983)
Medically Vulnerable Subclass versus All Defendants 131. Defendants repeat and reallege Paragraphs 1 through 130 of their Answer as though more fully set forth herein. 132. Defendants deny the allegations contained therein for the reason they are untrue. 133. Defendants deny the allegations contained therein for the reason they are untrue. 134. Defendants deny the allegations contained therein for the reason they are untrue.
PRAYER FOR RELIEF WHEREFORE, Defendants respectfully request that this Honorable Court dismiss Plaintiffs' Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief and award Defendants costs, interest and attorneys' fees so wrongfully incurred.
s/STEVEN M. POTTER (P33344) POTTER, DeAGOSTINO, O’DEA & CLARK Attorneys for Defendants 2701 Cambridge Court, Suite 223 Auburn Hills, Michigan 48326 (248) 377-1700 spotter@potterlaw.com
16

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2931 Page 17 of 22
AFFIRMATIVE DEFENSES NOW COME Defendants, MICHAEL J. BOUCHARD, CURTIS D. CHILDS and OAKLAND COUNTY, by and through their attorneys, POTTER, DeAGOSTINO, O’DEA & CLARK, and hereby submit the following as their affirmative defenses: 1. Plaintiffs have failed to state a claim upon which relief can be granted. 2. To the extent Plaintiffs allege vicarious or respondeat superior liability under 42 U.S.C. § 1983, such claims are barred. 3. Some or all of Plaintiff's' claims are barred by application of the doctrine set forth in Heck v Humphrey. 4. Some or all of Plaintiffs' claims are barred by application of the doctrines of res judicata, collateral estoppel or issue preclusion. 5. Plaintiffs' claims are otherwise barred by absolute or qualified immunity under federal law. 6. Defendants’ actions were not the proximate cause of Plaintiffs' injuries and damages. 7. Defendants are immune from punitive damages in an action under 42 U.S.C. § 1983. 8. The conduct alleged against Defendants is insufficient to support a claim of punitive damages.
17

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2932 Page 18 of 22
9. That Plaintiffs' Complaint is barred because of release, prior judgment, statute of limitations, statute of frauds, and/or assignment or other disposition of the claim before the commencement of the action.
10. Some or all of Plaintiffs' claims are barred by the Rooker-Feldman Doctrine.
11. Plaintiffs' civil and/or constitutional rights have not been violated. 12. That Plaintiffs' cause of action is barred in total, or at least in part, for the reason that Plaintiffs have not been deprived of any rights, privileges or immunities secured by the Constitution or laws of the State of Michigan. 13. Defendants did not have or otherwise adopt any customs, policies and/or procedures which caused or otherwise were the moving force behind any constitutional violations alleged in Plaintiffs' Complaint, nor did any such customs, policies and/or procedures originate from a decision maker with final policy making authority. 14. Defendants did not act with deliberate indifference as to any known or obvious consequences with respect to the activities alleged in Plaintiffs' Complaint and/or as to any constitutional violations. 15. All training and/or discipline provided to Defendants was adequate to the tasks they were to perform and any alleged inadequacies were not the actual or
18

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2933 Page 19 of 22
proximate cause of Plaintiffs' alleged injuries or damages, nor did they cause the constitutional violations as alleged by Plaintiffs.
16. Defendants' conduct was not extreme or outrageous. 17. That Plaintiffs' Complaint is barred for the reason that Plaintiffs have failed to allege the deprivation of a specific constitutional right. 18. Plaintiffs have not alleged sufficient facts to show a violation of clearly established law as of the time of the occurrence relative to the conduct of Defendants, exclusively. 19. Plaintiffs have failed to mitigate their damages. 20. That Plaintiffs' injuries and damages, if any, were not caused in whole or in part by any acts of negligence of these Defendants, but instead were caused in whole or in part by the negligence and/or comparative negligence of Plaintiffs. 21. That Plaintiffs' injuries and damages, if any, were not caused in whole or in part by any act of negligence on the part of these Defendants, but instead were caused in whole or in part by actions of third-parties over whom these Defendants had no control. 22. Plaintiffs' claims are barred for the reason they have not complied with the requirements of the Prison Litigation Reform Act, 42 U.S.C. §1997e, et seq.
19

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2934 Page 20 of 22
23. Plaintiffs' claims are barred for the reason they have failed to exhaust the required administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. §1997e, et seq.
24. Plaintiffs have not suffered a physical injury and thus are not entitled to damages related to mental or emotional injuries. 42 U.S.C §1997e, et seq.
25. Plaintiffs' claims are barred for the reason Plaintiffs have not exhausted required state available state remedies. 28 U.S.C. § 2254.
26. Plaintiffs are not entitled to a prisoner release order under the Prison Litigation Reform Act, 42 U.S.C. §1997e, et seq, because there is no prior order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied. 18 U.S.C. § 3626.
27. Plaintiffs are not entitled to a prisoner release order under the Prison Litigation Reform Act, 42 U.S.C. §1997e, et seq, because Defendants have not had a "reasonable amount of time to comply with the previous court orders." 18 U.S.C. § 3626.
28. Plaintiffs are not entitled to a prisoner release order under the Prison Litigation Reform Act, 42 U.S.C. §1997e, et seq, without impaneling a three (3) judge panel.
20

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2935 Page 21 of 22

29. Plaintiffs are not entitled to a prisoner release order under the Prison

Litigation Reform Act, 42 U.S.C. §1997e, et seq, because crowding is not the primary

cause of the alleged violation of their Federal rights and Plaintiffs are unable to show

no other relief will remedy the alleged violation. 18 U.S.C. § 3626.

30. Habeas corpus is not available for Plaintiffs' Eighth and Fourteenth

Amendment claims.

31. Plaintiffs' class claims are barred for the reason they fail to satisfy the

requirements of FRCP 23.

32. Plaintiffs' class claims are barred for the reason they have failed to

exhaust administrative remedies. 42 U.S.C §1997e, et seq.

33. Plaintiffs' class claims are barred for the reason they have not exhausted

required state available state remedies. 28 U.S.C. § 2254.

34. That Defendants reserve the right to amend these affirmative defenses in

accordance with federal procedural law.

Dated: May 15, 2020

s/STEVEN M. POTTER (P33344) POTTER, DeAGOSTINO, O’DEA & CLARK Attorneys for Defendants 2701 Cambridge Court, Suite 223 Auburn Hills, Michigan 48326 (248) 377-1700 spotter@potterlaw.com

21

Case 2:20-cv-10949-LVP-MJH ECF No. 88 filed 05/15/20 PageID.2936 Page 22 of 22
CERTIFICATE OF SERVICE I hereby certify that on May 15, 2020, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to all participating attorneys.
s/STEVEN M. POTTER (P33344) Attorney for Defendants 2701 Cambridge Court, Suite 223 Auburn Hills, Michigan 48326 (248) 377-1700 spotter@potterlaw.com
22

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.2987 Page 1 of 71

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON, RICHARD BRIGGS, RAJ LEE, MICHAEL CAMERON, and MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,

Plaintiffs, v.

Civil Case No. 20-10949 Honorable Linda V. Parker

MICHAEL BOUCHARD, CURTIS D. CHILDS, and OAKLAND COUNTY,

Defendants. ____________________________________/

OPINION

We are in the midst of a global pandemic arising from the novel coronavirus

(“COVID-19”). No one could deny that it has produced unparalleled and

exceptional circumstances affecting every aspect of life as we have known it. This

case addresses whether persons with a limited ability to protect themselves from

the threat of this serious and deadly virus due to their incarceration in Michigan’s

Oakland County Jail (“Jail”) are being adequately protected. If they are not, this

Court must provide some remedy, as “[p]risoners retain the essence of human

dignity inherent in all persons” and failing to protect them from serious harm “is

incompatible with the concept of human dignity and has no place in civilized

society.” Brown v. Plata, 563 U.S. 493, 510-11 (2011).

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.2988 Page 2 of 71
Plaintiffs-Petitioners (hereafter “Plaintiffs”), five Jail inmates, filed this putative class action lawsuit, claiming that Defendants are acting with deliberate indifference in response to the serious risk that COVID-19 poses to incarcerated individuals. And because COVID-19 presents a specifically dire threat to “medically-vulnerable individuals”—a term that has become basic to our lexicon in the last several months, Plaintiffs seek the temporary release of inmates within this category. The matter is before the Court on Plaintiffs’ Motion for a Preliminary Injunction (ECF No. 5), Plaintiffs’ Motion to Certify Class (ECF No. 6), and Defendants’ Motion to Dismiss (ECF No. 30). The Court held a hearing with respect to the motions via videoconference on May 4, 6 and 7, 2020. I. Procedural Background
On April 17, 2020, Plaintiffs filed a combined putative class action complaint pursuant to 42 U.S.C. § 1983 and a representative habeas petition pursuant to 28 U.S.C. § 2241. (ECF No. 1.) Plaintiffs seek to represent a class of all current and future Jail detainees (“Jail Class”), as well as the following subclasses:
 The First Subclass (“Pre-trial Subclass”) is defined as “[a]ll current and future persons detained at the Oakland County Jail during the course of the COVID-19 pandemic who have not yet been convicted of the offense for which they are currently held in the Jail.”
 The Second Subclass (“Post-conviction Subclass”) is defined as “[a]ll current and future persons detained at the 2

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.2989 Page 3 of 71
Oakland County Jail during the course of the COVID-19 pandemic who have been sentenced to serve time in the Jail or who are otherwise in the Jail as the result of an offense for which they have already been convicted.”  The Third Subclass (“Medically-Vulnerable Subclass”) is defined as “[a]ll members of the Jail class who are also over the age of fifty or who, regardless of age, experience an underlying medical condition that places them at particular risk of serious illness or death fromCOVID19 ….” (Id.) On April 17, Plaintiffs also filed a Motion to Certify Class. (ECF No. 6.) They further filed an Emergency Motion for Temporary Restraining Order (“TRO”) and Preliminary Injunction in which they asked the Court to order (i) the release of members of the Medically-Vulnerable Subclass pending briefing and argument and (ii) the undertaking of certain measures to improve hygiene and safety at the Jail. (ECF No. 5.) On April 17, the Court issued a TRO directing Defendants to take certain measures to improve hygiene and safety at the Jail. (ECF No. 12.) The Court also ordered Defendants to promptly produce to Plaintiffs and the Court lists of information relevant to inmates within the proposed Medically-Vulnerable Subclass. (Id.) However, the Court concluded that it was without sufficient information to then rule on Plaintiffs’ request to release all members of the Medically-Vulnerable Subclass. (Id.) The Court subsequently entered an amended opinion and order, which contained no substantive changes. (ECF No. 21.)
3

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.2990 Page 4 of 71
Defendants filed a Motion for Reconsideration, which was denied in all respects except the Court modified its order as to the lists relevant to inmates within the proposed Medically-Vulnerable Subclass. (ECF No. 29.) The Court instead required Defendants to provide the lists to the Court and/or Plaintiffs’ counsel “only once the Court determines that it has the power to release inmates in this litigation or is convinced that there is some other reason why the lists should be produced.” (Id. at Pg ID 806.)
Following a telephonic conference with counsel for the parties on April 20, at which time Defendants indicated that they intended to file a motion to dismiss, the Court set a briefing schedule for Defendants to file their motion and respond to Plaintiffs’ TRO and preliminary injunction motion. (ECF No. 22.) The parties subsequently stipulated to and the Court entered an order allowing for an inspection of the Jail by Dr. Carlos Franco-Paredes on April 23. (ECF No. 27.) On April 23, Defendants filed their Motion to Dismiss and response to Plaintiffs’ TRO and preliminary injunction motion. (ECF No. 30.) Plaintiffs responded to the Motion to Dismiss on April 27. (ECF No. 33.)
The Court conducted a hearing via videoconference on the parties’ pending motions on May 4, 6, and 7. As consented to during a telephonic status conference prior to the hearing, each side presented two live witnesses but otherwise relied on documentary evidence, affidavits, and declarations to present their evidence.
4

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.2991 Page 5 of 71
Subsequent to the hearing, both parties supplemented the record with affidavits. (ECF Nos. 64-1, 83-1.) Defendants filed a response to Plaintiffs’ Motion to Certify Class on May 12 (ECF No. 83), and Plaintiffs filed a reply brief on May 18 (ECF No. 90).1 Both parties filed trial briefs on May 13. (ECF Nos. 85, 86.) II. Factual Findings
A. The Jail and the Parties 1. The Parties
The Oakland County Sheriff’s Office (“Sheriff’s Office”) oversees and administers the Jail and is responsible for the custody and care of individuals detained or incarcerated at the Jail. Michael Bouchard is the Sheriff of Oakland County. Captain Curtis Childs is the Commander of Corrective Services for the Sheriff’s Office. Plaintiffs are suing Sheriff Bouchard and Captain Childs in their official capacities only.
Plaintiffs are five Jail inmates. Plaintiff Jamaal Cameron has been incarcerated at the Jail since March 11, 2020 and is expected to be released on July
1 On May 18, Defendants filed a Motion to File a Sur-Reply (ECF No. 91), which Plaintiffs thereafter moved to strike (ECF No. 92). The Court is denying Defendants’ motion, as it contains evidence that they could have presented prior to, at, or immediately following the evidentiary hearing. Moreover, sur-reply briefs are not permitted by the Local Rules for the Eastern District of Michigan, particularly because they enable parties to introduce new evidence which the opposing party cannot respond to, lest the briefing extend ad nauseam. In light of this ruling, Plaintiffs’ Motion to Strike is denied as moot.
5

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.2992 Page 6 of 71
5, 2020. (J. Cameron Decl., ECF No. 5-3 at Pg ID 370.) Mr. Cameron’s original release date was in August 2020, but he filed a pro se motion in state court seeking early release on a tether due to his health conditions and was granted a 25-percent reduction of his sentence. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1488-89.) The judge did not inform Mr. Cameron that he had the right to appeal the denial of his request for release on a tether. (Id. at Pg ID 1508.) Mr. Cameron eventually hired a lawyer to file a second motion to be released, which was filed around April 1, 2020, heard on April 21, and remains pending before the state court. (Id. at Pg ID 1489-91, 1507.) Mr. Cameron states that he suffers from hypertension, bronchitis, chronic obstructive pulmonary disease (COPD), gastritis, and sleep apnea.2 (Id. at Pg ID 1461.)
Plaintiff Raj Lee has been at the Jail since November 18, 2019 and is serving a nine-month sentence. (Lee Decl., ECF No. 5-5 at Pg ID 383.)
Plaintiff Michael Cameron, a 42-year old convicted inmate, suffers from cardiac disease, hypertension, and obesity. (M. Cameron Decl., ECF No. 5-6 at Pg ID 389.)
2 Defendants dispute whether Mr. Cameron in fact suffers from these medical conditions, as he did not list them upon intake at the Jail. Mr. Cameron testified at the hearing, however, that his hypertension was first diagnosed by Jail medical staff during his incarceration and he has been prescribed medication for this condition. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1461-62.) Mr. Cameron did not think his other conditions were severe enough to warrant mentioning upon intake. (Id. at Pg ID 1462.)
6

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.2993 Page 7 of 71
Plaintiff Richard Briggs is a pretrial detainee who has been unable to afford his $34,000 bond. (Briggs Decl., ECF No. 5-4 at Pg ID 377.) Mr. Briggs has been incarcerated at the Jail since approximately November 9, 2019, except for a period of time around March 2020 when he was in the Wayne County Jail. (Id.)
Plaintiff Matthew Saunders is a pretrial detainee who has been incarcerated since October 3, 2019. (Saunders Decl., ECF No. 5-8 at Pg ID 399.) His criminal trial was initially scheduled for March 18, 2020, but is now adjourned until June 15. (Id.)
2. The Jail The Jail has the capacity to house 1,664 inmates. (5/7/20 Hr’g Tr., ECF No. 61 at Pg ID 1835.) Pretrial detainees and convicted individuals are housed together. (Id.) The Jail is comprised of three main housing units: the Main Jail, the Annex, and the East Annex. (ECF No. 67.) The Main Jail and the Annex are in the same building, while the East Annex is in a separate building across a parking lot. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2020.) Captain Childs oversees the Main Jail and Annex, while another captain oversees the East Annex. (Id. at Pg ID 2125.) The Annex has eight pods, each of which largely contains two-person cells. (Defs.’ Hr’g Ex. G, ECF No. 68 at Pg ID 2288-95.) The Main Jail has six “holding tanks” and several “blocks.” The smallest holding tank can house 13 inmates and
7

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.2994 Page 8 of 71
the largest can house 37 inmates.3 (Id. at Pg ID 2296.) Within the blocks, the smallest cells hold eight inmates but most hold 10 inmates. The 10-person cells are approximately 12 by 15 feet. (Defs.’ Hr’g Ex. C, ECF No. 68 at Pg ID 22962301.) J-Block, which is known as the “clinic,” houses inmates with special medical needs within eight one-person cells. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2145.) K-Block houses inmates diagnosed with mental health issues within what appear to be one-person cells. (Id. at Pg ID 2138.)
The East Annex houses inmate “trusties”4 in a dorm-style housing area. (Id. at Pg ID 2133-34.) Dorms are open rooms with bunks on each side of the wall, which accommodate 28 inmates on one side and 32 inmates on the other side. (Id. at Pg ID 2145.) There is also a day room area with tables and chairs. (Id. at Pg ID 2133-34.) It is a “privilege” to be housed in this area as there are no cells and inmates are allowed increased freedom of movement. (Id.)
The Main Jail has more than 50 cells with a significant number holding more than two inmates. (Defs.’ Hr’g Ex. C, ECF No. 68.) Most of these group cells are 10-person cells. (Id.)
3 For context, Mr. Cameron testified that there were 10 inmates at one point in the holding-tank in which he was placed, R-4, which is approximately 9 by 13 feet. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1478-79.) 4 The parties used “trustee” throughout their briefs but at least one declarant used “trustie,” prompting the Court to check the proper spelling in this context. The Merriam-Webster Dictionary supports using the spelling used by the declarant. See https://www.merriam-webster.com/dictionary/trusty.
8

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.2995 Page 9 of 71
In some housing areas, inmates sleep a foot apart or less and, in others, inmates may have to sleep side-by-side in the middle of the floor. (Saunders Decl., ECF No. 5-8 at Pg ID 399; J. Cameron Decl., ECF No. 5-3 at Pg ID 372; 5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1478-79.) Inmates pass materials, such as food, hygiene items, and the DMQ used to clean their cells from one cell to the next. (White Decl., ECF No. 55 at Pg ID 1447.) All inmates, no matter where they are housed, share showers, toilets, sinks, brooms, and cleaning supplies. (5/7/20 Hr’g Tr., ECF Nos. 62 at Pg ID 1853-54; ECF No. 61 at Pg ID 1837-39.) Some bunks adjoin toilets. (Briggs Decl., ECF No. 5-4 at Pg ID 379.) Toilets have no lids and fecal matter can disperse when toilets are flushed. (Paredes Report, ECF No. 42 at Pg ID 1373.) In some cells, the telephone is so close to the toilet or sink that an inmate using the phone may get splashed when the toilet is flushed or the sink is used. (Chandler Decl., ECF No. 48 at Pg ID 1427-28; 5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1479-80.)
The Jail has 252 uniformed personnel, 43 medical staff workers, 12 Aramark employees (the Jail’s contracted food vendor), approximately six custodial workers, and an undefined number of maintenance workers. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2111, 2206.) Approximately 170 individuals who are not inmates enter the Jail facility on a daily basis. (Id. at Pg ID 2207.)
9

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.2996 Page 10 of 71
B. COVID-19 and Michigan
COVID-19 is a serious and new disease, not seen in humans prior to late
2019. It is a highly infectious respiratory illness that easily spreads from person to
person and can cause death.
Two cases of COVID-19 were identified in Michigan as of March 2, 2020.5
As of May 19, the number of cases in the State had increased to 52,350, with 5,017
confirmed COVID-19 related deaths.6 Compared to other states across the nation,
Michigan is an “epicenter” for the virus,7 with Wayne, Macomb, and Oakland
counties having the greatest number of cases per population.8
1. Populations Most At-Risk from COVID-19
COVID-19 contraction creates a greater risk of severe illness or death for
certain persons. According to the Centers for Disease Control and Prevention
5 Mich. Exec. Order 2020-4 (Mar. 10, 2020). 6 Coronavirus, Michigan.gov, https://www.michigan.gov/coronavirus (last visited May 20, 2020). 7 See Julie Mack, Michigan Has Become a U.S. Epicenter for Coronavirus. Why?, MLive (Mar. 27, 2020), https://www.mlive.com/publicinterest/2020/03/michigan-has-become-a-us-epicenter-for-coronavirus-why.html; Pat Byrne et al., Michigan Coronavirus Cases: Tracking the Pandemic, Detroit Free Press (May 19, 2020, 2:57 PM), https://www.freep.com/indepth/news/nation/coronavirus/2020/04/11/michigan-coronavirus-cases-trackingcovid-19-pandemic/5121186002. 8 Coronavirus: Michigan Data, Michigan.gov, https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173---,00.html (last updated May 19, 2020).
10

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.2997 Page 11 of 71
(“CDC”), individuals with the following underlying conditions are more
vulnerable to the virus:
 Over 65 years of age;  Chronic lung disease or moderate to severe asthma;  Serious heart conditions;  Immunocompromised bodies, which could be due to
cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications;  Severe obesity (body mass index of 40 or higher);  Diabetes;  Chronic kidney disease undergoing dialysis; or,  Liver disease.9
In addition, as pregnant women are at greater risk of getting sick from respiratory
viruses, the CDC instructs them to take extra precautions to avoid exposure to the
coronavirus.10
Plaintiffs’ experts, Dr. Adam Lauring and Dr. Jonathan Louis Golob,
testified that the CDC’s list of conditions is incomplete. They opine that people
over the age of 50, or with high blood pressure, Hepatitis C, less than “severe
9 Coronavirus Disease 2019 (COVID-19): People Who Are at Higher Risk for Severe Illness, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-athigher-risk.html (last updated May 14, 2020). 10 See Coronavirus Disease 2019 (COVID-19): If You Are Pregnant, Breastfeeding, or Caring for Young Children, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/pregnancy-breastfeeding.html (last updated May 13, 2020).
11

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.2998 Page 12 of 71
obesity,” blood disorders (including sickle cell disease), inherited metabolic
disorders, a history of stroke, or developmental delay also face a higher risk of
experiencing severe COVID-19 outcomes. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID
1523-25; Golob Decl., ECF No. 1-5 at Pg ID 148.) In Dr. Lauring’s opinion,
medically-vulnerable individuals are probably at double or triple the risk of
experiencing severe COVID-19 outcomes as compared to the general population.
(5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1523-25.)
2. Symptoms & Spread of COVID-19
Individuals infected with COVID-19 may experience a variety of symptoms ranging from mild symptoms to severe illness.11 These symptoms include a cough,
shortness of breath or difficulty breathing, fever, chills, muscle pain, sore throat, and loss of taste or smell.12 This list is not all inclusive13 and some symptoms may appear two to 14 days after exposure to the virus, or may not appear at all.14
COVID-19 spreads through respiratory droplets when an infected person
coughs, sneezes, or sprays saliva. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1523.)
11 Symptoms of Coronavirus, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last updated May 13, 2020). 12 Id. 13 Id. 14 See Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-managementpatients.html (last updated May 15, 2020).
12

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.2999 Page 13 of 71
Transmission is more likely when people are within six feet of one another.15
Individuals also may be infected by touching contaminated surfaces and objects.16
The National Institutes of Health reports that the virus is “stable for several hours
to days in aerosols and on surfaces.”17 Dr. Lauring testified that the virus is not
likely to be transmitted via urine but that there is concern about transmission via
feces. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1523.) Dr. Anthony Fauci, Director
of the National Institute of Allergy and Infectious Diseases, has indicated that
asymptomatic individuals can transmit the virus to others.18
3. Mitigating the Risk of COVID-19 Infection
Currently, there is no vaccine to protect against COVID-19. To prevent
infection and mitigate the spread of the virus, the CDC and other public health
agencies universally recommend social distancing (i.e. remaining at least six feet
15 Frequently Asked Questions: How COVID-19 Spreads, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/faq.html#HowCOVID-19-Spreads (last updated May 12, 2020). 16 Id. 17 News Release: New Coronavirus Stable for Hours on Surface, Nat’l Insts. of Health (Mar. 17, 2020), https://www.nih.gov/news-events/news-releases/newcoronavirus-stable-hours-surfaces. 18 See Roni C. Rabin, They Were Infected with the Coronavirus. They Never Showed Signs., N.Y. Times (Feb. 26, 2020), https://www.nytimes.com/2020/02/26/health/coronavirus-asymptomatic.html; see also Aria Bendix, A Person Can Carry and Transmit COVID-19 Without Showing Symptoms, Scientists Confirm, Sci. Alert (Feb. 24, 2020), https://www.sciencealert.com/researchers-confirmed-patients-can-transmit-thecoronavirus-without-showing-symptoms.
13

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3000 Page 14 of 71
from every other person), not gathering in groups, staying out of crowded places
and avoiding mass gatherings, wearing a face cover, and rigorous hygiene—
including regular and thorough hand washing with soap and water, the use of
alcohol-based hand sanitizer, proper sneeze and cough etiquette, and frequent cleaning of all surfaces.19
COVID-19 is more easily transmitted within communal living and densely packed environments, such as jail facilities and nursing homes.20 (See Meyer
Decl., ECF No. 1-3 at Pg ID 95; Lauring Decl., ECF No. 1-15 at Pg ID 270-72.)
This is a significant reason why individuals within these environments are at a
particularly high risk of contracting COVID-19. Shared dining halls, bathrooms,
showers, and other common areas, as well as a lack of necessary medical and
hygiene supplies, catalyzes the rapid spread of infectious diseases among jail
inmates. (See, e.g., Meyer Decl., ECF No. 1-3 at Pg ID 95.) And spaces within
jails are often poorly ventilated, fueling more of the same. (Id.) Incarcerated
19 Coronavirus Disease 2019: How to Protect Yourself & Others, Ctrs. for Disease Control & Prevention (last updated Apr. 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html. 20 See Coronavirus Disease 2019: Guidance for Shared or Congregate Housing, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019ncov/community/shared-congregate-house/guidance-shared-congregatehousing.html (last updated Apr. 25, 2020); Coronavirus Disease 2019: Nursing Homes & Long-Term Care Facilities, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/long-term-care.html (last updated May 19, 2020).
14

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3001 Page 15 of 71
individuals also are more likely than members of the general public to have the chronic underlying health problems that cause greater risk of infection. (Meyer Decl., ECF No. 1-3 at Pg ID 96; Lauring Decl., ECF No. 1-15 at Pg ID 271.) Staff, visitors, contractors, vendors, and rapid turnover of the prison population means that people often cycle between facilities and communities. (Lauring Decl., ECF No. 1-15 at Pg ID 268-69.)
Recognizing these risks, the CDC published guidance for correctional and detention facilities on March 30, 2020.21 The recommended CDC protocols include screening for individuals entering the facility, restricting visitors, establishing protocols for detecting and treating individuals exhibiting COVID-19 symptoms and testing positive for the virus, providing personal protective equipment, conducting stringent cleaning, providing access to personal hygiene products, restricting transfers to those that are “absolutely necessary,” and practicing social distancing.22 Dr. Lauring and Dr. Franco-Paredes both opine that social distancing is the single most important strategy for preventing coronavirus. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1526; Franco-Paredes Report, ECF No. 42 at Pg ID 1381.) Recognizing such need, Michigan’s Governor Gretchen Whitmer
21 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Ctrs. for Disease Control & Prevention (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html. 22 Id.
15

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3002 Page 16 of 71
issued an Executive Order encouraging the Michigan Department of Corrections
(“MDOC”) and county jails to consider actions to reduce their inmate
populations.23 The Governor also ordered MDOC to implement risk reduction
protocols reflective of those recommended by the CDC.24
C. COVID-19 and the Jail
1. Defendants’ Testimony
Captain Childs and the Jail’s Health Services Administrator, Registered
Nurse Vicky Lynn Warren, are responsible for coordinating the Jail’s response to
the COVID-19 pandemic. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2163; 5/4/20
Hr’g Tr., ECF No. 56 at Pg ID 1557.) Their first relevant conversation was in late
February 2020. (Id.)
23 Mich. Exec. Order 2020-29 (Mar. 29, 2020). Despite these precautions, as of May 11, 2020, MDOC had more coronavirus-related deaths than any other state prison system and the federal prison system. See Angie Jackson & Kristi Turner, Michigan Ranks Highest in Nation for Prisoner Deaths from Coronavirus, Detroit Free Press (May 9, 2020, 12:18 PM), https://www.freep.com/story/news/local/michigan/2020/05/09/prisonercoronavirus-covid-19-deaths/3090182001/; A State-by-State Look at Coronavirus in Prisons, The Marshall Project (May 15, 2020 3:45 PM), https://www.themarshallproject.org/ (follow “Topics” hyperlink; then follow “Coronavirus” hyperlink; then follow “A State-by-State Look at Coronavirus in Prisons” hyperlink). As of May 15, 2020, MDOC reports that 2,173 inmates have contracted the virus, placing it only below Ohio, Tennessee, and the Federal prison system in the number of cases. See A State-by-State Look at Coronavirus in Prisons, supra. Among all prisoners in Michigan, there have been 2,173 known cases of the virus and 55 deaths. Id. There have been 313 cases of the virus among prison staff throughout Michigan and two deaths. Id. 24 Mich. Exec. Order 2020-29 (Mar. 29, 2020).
16

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3003 Page 17 of 71
As of May 6, 2020, it had been a couple of weeks since Captain Childs visited the housing units of the Jail. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2142.) And though Nurse Warren is responsible for the Jail’s entire medical and dental program, she does not provide direct care to inmates. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1557.) Nurse Warren’s staff must obtain her permission for what they say to inmates but Nurse Warren concedes that she has not personally observed her staff interacting with inmates on a daily basis. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2023.) When asked when she last personally accompanied her staff on their visits around the housing facility, Nurse Warren indicated that she “do[es] not accompany them.” (Id. at Pg ID 2040-41.) In fact, Nurse Warren testified that in her capacity as Health Services Administrator—a position she has held since 2014—it is “very seldom” that she is inside the Jail’s housing areas. (Id. at Pg ID 2110.)
Nonetheless, Captain Childs and Nurse Warren have described the following steps that Defendants have taken to respond to the COVID-19 pandemic:
 As early as March 11—before the first confirmed case of coronavirus at the Jail on March 28—signs were posted advising inmates to wash their hands regularly, that extra cleaning was being done to attempt to prevent the virus from entering the facility, and that “[c]leaning supplies are readily available.”25
25 Captain Childs testified that he reviewed video of the Jail from March 19, 2020, in which the signs described above were visibly posted. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2184.) Notably, the video clip provided to the Court captures a staff area of the jail, not a housing area.
17

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3004 Page 18 of 71
(Childs Aff., ECF No. 30-2 at Pg ID 884; see also 5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2184; Defs.’ Hr’g Ex. J, ECF No. 30-3.)
 Inmates are provided two bars of soap twice a week and can request more bars from corrections staff when needed. (Childs Aff., ECF No. 30-2 at Pg ID 881-82.)
 Inmates are responsible for cleaning the Jail’s showers, sinks, toilets, and cells, as has been the case historically. (Id. at Pg ID 882.) To clean, inmates are provided sponges, rags, and spray bottles containing DMQ. (Id.)
 On April 9, the Sheriff’s Office acquired a few thousand level one masks and distributed them to the inmates. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2182.) The Jail also ordered five thousand cloth masks around April 7. (Id. at Pg ID 2183; Defs.’ Hr’g Ex. I, ECF No. 74.)
 On March 13, the Jail stopped all in-person visitation. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2166.) Inmate visits with attorneys, family, and friends must be through video. (Id.)
 To facilitate social distancing, the Jail canceled various programs (e.g., Alcohol Anonymous, Narcotics Anonymous, church, and recreational activities) and began using prepackaged meals. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2125-27.)
 Inmates have been moved around based on their classification levels to reduce the number of people housed in a cell. (Id. at Pg ID 2127, 2180.)
 Daily from Monday through Friday, a doctor or nurse practitioner from Nurse Warren’s staff canvasses every housing unit, cell, and pod, at which time they interact with the inmate population and explain the importance of self-reporting COVID-19 symptoms. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1570; Warren Aff., ECF No. 30-6 at Pg ID 934.) Nurse Warren’s staff also distributes sick call slips to inmates daily and picks up those slips every morning. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1570; Warren Aff., ECF
18

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3005 Page 19 of 71
No. 30-6 at Pg ID 934.) She explains that this is the protocol for inmates to self-report coronavirus symptoms. (Id.)
 Inmates displaying symptoms are assessed. (Id.) Beginning on or around March 28, if an inmate tested positive for coronavirus, Jail staff moved him or her to a quarantined cell in the Jail’s Annex reserved for such inmates. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1572; 5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2000.) The cell from which an infected inmate is removed is then placed under quarantine for 14 days, along with the inmates remaining in those cells and the entire adjoining row of cells. (Id. at Pg ID 1575-76, 1579.)26
 Defendants began testing inmates on March 26. (Defs.’ Hr’g Ex. B, ECF No. 67.) Prior to May 1, the Jail’s testing focused on symptomatic inmates. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2009.) On May 1, Nurse Warren received 1,000 test kits. (5/4/20 Hr’g Tr., ECF No. 60 at Pg ID 116.) On that date, Defendants focused on testing medically-vulnerable individuals. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2051.) Medical staff tested 356 inmates from May 1 through May 7. (Id. at Pg ID 2002; 5/7/20 Hr’g Tr., ECF No. 61 at Pg ID 1817.)
 Nurse Warren testified that she was not consulted when Defendants crafted and implemented the COVID-related training of corrections staff. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 208586, 2116.) She also was not consulted about whether the same corrections officers should be interfacing with both symptomatic and non-symptomatic inmates. (Id. at Pg ID 2102.)
 According to Captain Childs, corrections officers were instructed to pass out grievance forms multiple times each day and to not retaliate against an inmate for filing one, even those related to
26 At the evidentiary hearing, Defendants introduced a diagram of the Jail reflecting the quarantined cells housing inmates who have tested positive for the coronavirus and those housing inmates exposed to COVID-19 or who are exhibiting COVID-19 symptoms. (Defs.’ Hr’g Ex. G, ECF No. 72.)
19

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3006 Page 20 of 71
COVID-19.27 (Childs Aff., ECF No. 30-2 at Pg ID 882-83.) Corrections officers were also trained to not threaten any inmate to achieve behavior modification, (id. at Pg ID 883), and therefore inmates are not transferred to the Main Jail from the Annex or East Annex for the purpose of punishment. (Id.)
 No policy currently in effect prohibits the transfer of inmates from one housing unit to another, unless the inmate is under quarantine. (5/7/20 Hr’g Tr., ECF No. 61 at Pg ID 1755-56.) At one point, signs in the East Annex informed trusties that they will be sent to the Main Jail if they refuse to do their assigned work. (Id. at 1758.) Captain Childs confirmed that East Annex inmates are moved for this reason, even during the pandemic and even if they are medically vulnerable. (Id.) On re-direct, Captain Childs indicated that, since the Court issued its TRO, inmates in the East Annex are moved only if they assault or threaten to assault someone. (5/7/20 Hr’g Tr., ECF No. 61 at Pg ID 1787.)
 In mid- to late March, the Jail initiated a protocol to screen new arrestees by taking their temperatures and asking a series of questions to assess their exposure to or contraction of coronavirus. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2167-68; 5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1568-69.) Depending on the result of this screening, new inmates are placed with inmates with COVID-19, symptomatic inmates, or in quarantined housing for new arrestees where they remain for 14 days. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1569.) Before they are moved into the general population, new inmates are swab-tested for the virus. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 1989-90.) Starting on March 26, the same screening protocol was adopted for corrections officers, medical staff, and other workers when they arrive at work each day. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1581-82; Defs.’ Hr’g Ex. Ex. N, ECF No. 77.)
27 According to Captain Childs, a search of the Jail’s grievance system reflected no grievance filed by any Plaintiff from January 1, 2020 through May 6, 2020. (5/6/20 Hr’g Tr., ECF No. 56 at Pg ID 2189.) Of the 276 grievances filed during that period, only eight possibly related to COVID-19 and complained of unsanitary conditions. (Id.) Defendants did not offer any of the filed grievances as evidence prior to, during, or immediately following the evidentiary hearing.
20

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3007 Page 21 of 71
 Around the third week in March, the Sheriff’s Office sent letters to Oakland County Circuit Court judges seeking alternatives to imprisonment for 166 Jail inmates who were incarcerated due to non-violent misdemeanor convictions and/or were potentially medically vulnerable (based on the conditions for vulnerability outlined by the CDC). (Childs Aff., ECF No. 30-2 at Pg ID 885; 5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2168.) Forty-two of the 166 inmates were medically vulnerable. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2171.) The Sheriff’s Office petitioned for the release of only those medically-vulnerable inmates who did not have a history of a violent misdemeanor or felony.28 (5/7/20 Hr’g Tr., ECF No. 61 at Pg ID 1841.) As a result of this process, 110 inmates were released. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2171; see also Defs.’ Hr’g Ex. D, ECF No. 69 at Pg ID 2342-44). Twenty-seven of those inmates were medically vulnerable. (Id.)
 Between May 11 and May 13, at which time the Jail housed 248 medically-vulnerable individuals (127 of whom have no history of a violent misdemeanor or felony), Defendants forwarded 17 additional letters to the Oakland County Circuit Court.29, 30
 Defendants do not have a protocol for segregating medicallyvulnerable inmates from the rest of the Jail population. (5/7/20 Hr’g Tr., ECF No. 61 at Pg ID 1749.)31 Medically-vulnerable
28 To be clear, based on Defendants’ list of medically-vulnerable inmates as of May 14 (see infra note 29), it is likely that the 42 medically-vulnerable inmates for whom the Sheriff’s Office submitted petitions constitute only a fraction of the medically-vulnerable inmates with no history of a violent misdemeanor or felony.
29 Four of the 17 inmates had the following original release dates: May 13, May 16, May 21, and May 28.
30 This information was obtained from Defendants’ list of medically-vulnerable inmates, which—at the Court’s request—was submitted for in camera review on May 14.
31 An inmate’s housing is based upon his or her classification, which is based on the inmate’s current and past charges and institutional behaviors. (5/7/20 Hr’g Tr.,
21

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3008 Page 22 of 71
inmates could be housed in double cells, 10-person cells, or housing tanks,32 (id. at Pg ID 1749-50), and no report detailing where the medically-vulnerable inmates are housed exists, (id. at Pg ID 1750).
 Defendants did not present any expert evidence on the adequacy of their current policies or the implementation of these policies.
2. Plaintiffs’ Testimony
Notwithstanding Defendants’ claims of proactive implementation of
protective measures, Plaintiffs and other Jail inmates present a dramatically
different picture of what is occurring at the Jail:
 Inmates are not six feet apart from each other within their respective cells. (See, e.g., J. Cameron Decl., ECF No. 5-3 at Pg ID 372-73; Briggs Decl., ECF No. 5-4 at Pg ID 377-78; Lee Decl., ECF No. 5-5 at Pg ID 384.)
 The Jail posted signs providing methods to prevent the spread of COVID-19 only after this lawsuit was filed, and when a sign fell, it was destroyed and not replaced. (Sheppard Decl., ECF No. 49 at Pg ID 1432; Hutson Decl., ECF No. 46 at Pg ID 1422.) Mr. Cameron testified that the signs were posted the day before Dr. Franco-Paredes’ inspection. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1482-83.) In addition, the signs warning trusties that they would be sent to the Main Jail if they denied their work detail were
ECF No. 61 at Pg ID 1748.) While an inmate’s “medical needs” are considered (id.), those needs do not refer to their vulnerabilities to coronavirus. (Id., Pg ID 1749.)
32 For example, Inmate Antione Hutson suffers from multiple myeloma cancer and stage three kidney failure. (Hutson Decl., ECF No. 46 at Pg ID 1421.) Mr. Hutson is housed in a 10-person cell. (Id. at Pg ID 1422.) He reports that some of his cellmates are coughing and sniffling, but no one is monitoring their symptoms. (Id.)
22

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3009 Page 23 of 71
removed the day before Dr. Franco-Paredes’ inspection and replaced with signs about COVID-19. (M. Cameron Decl., ECF No. 31-2 at Pg ID 1025-26.)
 Inmates do not get sufficient soap to regularly wash their hands. (Briggs Decl., ECF No. 5-4 at Pg ID 378; Kucharski Decl., ECF No. 5-7 at Pg ID 396; Lewis Decl., ECF No. 51 at Pg ID 1437.) The bars of soap are small hospital-like bars. (5/4/6 Hr’g Tr., ECF No. 56 at Pg ID 1480.) In the Main Jail, inmates shared bars of soap up until the day of Dr. Franco-Paredes’ inspection; and then individual supplies were distributed. (Id. at Pg ID 1483-84.) In addition, there is an insufficient amount of toilet paper and, therefore, inmates share rolls between cells. (J. Cameron Decl., ECF No. 5-3 at Pg ID 374; see also Lewis Decl., ECF No. 51 at Pg ID 1437.)
 Mr. Chandler indicates that, recently, inmates received a bottle of DMQ for cleaning three times a day. (Chandler Decl., ECF No. 48 at Pg ID 1428.) Inmates cannot get DMQ at any other time of day, even if they ask. (Id.; 5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1480.) In the East Annex, inmates are allowed to use DMQ in the bathrooms, but they are prohibited from bringing it into the bunk or common area. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1509.) And while bottles of DMQ are available, inmates have no other cleaning equipment or supplies, such as rags (Williams Decl., ECF No. 50 at Pg ID 1434; Chandler Decl., ECF No. 48 at Pg ID 1428), or the supplies they receive are passed from cell to cell without being disinfected between use, (Chandler Decl., ECF No. 38 at Pg ID 1428; Sheppard Decl., ECF No. 49 at Pg ID 1431).
 Common surfaces and items that are touched frequently are not cleaned regularly and, in some cases, at all. (M. Cameron Decl., ECF No. 5-6 at Pg ID 390; Briggs Decl., ECF No. 5-4 at Pg ID 378.) The showers are filthy with scum, mold, clumps of hair, and insects. (J. Cameron Decl., ECF No. 5-3 at Pg ID 374; Briggs Decl., ECF No. 5-4 at Pg ID 378; Kucharski Decl., ECF No. 5-7 at Pg ID 396; Lewis Decl., ECF No. 51 at Pg ID 1437.) According to Inmate Karla Lewis, the common shower in her housing area is cleaned by trusties once every three days, at most. (Lewis Decl., ECF No. 51 at Pg ID 1437.) Inmate Jacqueline Williams indicates
23

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3010 Page 24 of 71
that she is only allowed to clean the cell (including the toilet) she shares with another inmate every five days. (Williams Decl., ECF No. 50 at Pg ID 1434.)
 Inmate Elizah Sheppard indicates that deputies, nurses, and trusties only started wearing gloves and masks after this lawsuit was filed. (Sheppard Decl., ECF No. 49 at Pg ID 1431.) And while corrections officers wore masks on the day of the Jail inspection, in the days that followed, some either do not wear masks, others wear them sometimes, and others wear them under their chins. (Chandler Decl., ECF No. 48 at Pg ID 1428.) And though corrections officers typically wear masks and/or gloves when serving food or taking an inmate’s temperature, they usually do not do so when handing mail and hygiene supplies to inmates or when checking inmates’ lockers. (Id. at Pg ID 1428; 5/6/20 Hr’g Tr., ECF No. 56 at Pg ID 1472-73.) Mr. Cameron further testified that Aramark employees, who touch the food containers, wore neither gloves nor face masks. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1469.) In addition, an Aramark employee who worked in the Jail’s kitchen (who happened to be Mr. Jamaal Cameron’s cousin) contracted the virus two weeks after she started working at the Jail. (Id. at Pg ID 1470.)
 Inmates are moved from cell to cell without consideration of who is symptomatic and who is not, and symptomatic inmates are housed in cells directly adjacent to presumptively healthy inmates. (Lee Decl., ECF No. 5-5 at Pg ID 386.) In one instance, after quarantined inmates were moved from their cell, healthy inmates from the next cell were moved into the cell without it being cleaned. (Id.) There was hair still on the floor and the toilet had not been cleaned. (Id.) In another instance, on April 11, when an inmate in a quarantined cell died from suspected COVID-19, two of his cellmates were then moved to a cell with presumptively healthy prisoners. (Id.) And on a different occasion, Inmate Matthew Saunders became sick with suspected COVID-19 and had a fever of 103 degrees. (Saunders Decl., ECF No. 5-8 at Pg ID 399.) He was quarantined in the medical ward for four days and then returned to his dorm without being tested for the virus. (Id. at Pg ID 400.)
24

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3011 Page 25 of 71
 Mr. Cameron and Mr. Lee claim that Jail medical staff do not make rounds at all in certain parts of the Jail. (J. Cameron Decl., ECF No. 5-3 at Pg ID 374; Lee Decl., ECF No. 5-5 at Pg ID 383.) Mr. Cameron testified that around March 18, nurses visited the East Annex day room and provided inmates with a 30-day supply of their medications. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1473.) The nurses instructed the inmates that they were responsible enough to administer their medications themselves and that the nurses were not going to be back. (Id.) Mr. Cameron did not see a nurse in the East Annex at any point between that day and April 9 (a span of some 27 days).33 (Id. at Pg ID 1474, 1476.)
 Jail medical staff are not responding appropriately to inmates who report symptoms of COVID-19. After Inmate David Kucharski, who suffers from asthma, reported that he was experiencing coronavirus symptoms, the nurse told him to let her know if his symptoms worsened and she gave everyone in the cell Tamiflu, with instructions to take it if they had COVID-19 symptoms. (Kucharski Decl., ECF No. 5-7 at Pg ID 395; Saunders Decl., ECF No. 5-8 at Pg ID 400.) When Mr. Briggs experienced shortness of breath and a loss of smell and taste, two nurses told him he did not have coronavirus and would not be tested. (Briggs Decl., ECF No. 5-4 at Pg ID 400.) One of the nurses told him that he could not be experiencing shortness of breath, as he was able to speak to her. (Id.) Mr. Briggs reports that others in his cell subsequently experienced the same symptoms. (Id.) About a month later, Mr. Briggs in fact tested positive for COVID-19. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2036.)
33 Nurse Warren testified that they went to a “keep-on-person med path” at the East Annex because her staff was going there every day from the Main Jail and they wanted to decrease the interaction between her staff and the inmates. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2037.) Nurse Warren further testified that there was only one day, April 6, when medical staff did not visit the East Annex and that was because a contingent nurse contracted coronavirus. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1580.) According to Nurse Warren, the nurse contracted coronavirus while performing her job as an EMT, rather than while working at the Jail. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2044.)
25

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3012 Page 26 of 71
 Kitchen trusties (i.e., inmates assigned to work in the kitchen) have been required to serve meals despite exhibiting COVID-19 symptoms.34 (Kucharski Decl., ECF No. 5-7 at Pg ID 395.) Trusties who refuse to work because they believe they are being exposed to dangerous conditions are threatened by and sometimes suffer retaliation from corrections officers.35 (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1471-76.)
 Mr. Jamaal Cameron testified that he requested a grievance form but never received one. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1504.) Other inmates in Mr. Cameron’s cell also could not get grievance forms when they requested them. (Id.)
On March 17, there were 1,223 inmates housed at the Jail. (Childs Aff.,
ECF No 30-2 at Pg ID 886; Defs.’ Mot. Ex. O, ECF No. 78.) The Jail has
34 For example, around the end of March 2020, Inmate Jason Arsineau, was experiencing COVID-19 symptoms and was feeling sick, so he informed a Jail deputy that he should not be serving food. (Arsineau Decl., ECF No. 5-9 at Pg ID 404-05.) The deputy called Mr. Arsineau a “motherf---er” and told Mr. Arsineau: “you do what I tell you to do, and you are going to serve food.” (Id.) Mr. Arsineau continued to serve food for four days until he was unable to get out of bed, leading a deputy to physically assault him. (Id.)
35 For example, on April 9, Jail Supervisor Kettlewell told Mr. Lee that he would be relocated from the Annex to the Main Jail if he refused to prepare food, pointing out that there was a COVID-19 outbreak in the Main Jail. (Lee Decl., ECF No. 5-5 at Pg ID 384.) Mr. Lee prepared a grievance form describing Supervisor Kettlewell’s threat and was subsequently moved to a cell in the Main Jail that contained nine other inmates. (Id. at Pg ID 384-85.) Inmates in the adjoining cell were under quarantine. (Id. at Pg ID 385; J. Cameron Decl., ECF No. 5-3 at Pg ID 371-72.) In addition, after learning that his cousin contracted the virus while working in the Jail kitchen, Mr. Jamaal Cameron requested a change in his duties from serving food to cleaning the bathrooms or the dorm room. (5/4/20 Hr’g Tr., ECF No. 56 at Pg ID 1474-75.) As he expected, Mr. Cameron was transferred to the Main Jail on April 9. (Id. at Pg ID 1476.)
26

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3013 Page 27 of 71
experienced an active outbreak of coronavirus, with 47 inmates testing positive
between March 27 (when coronavirus testing began at the Jail) and May 1. (Defs.’
Hr’g Ex. B, ECF No. 67 at Pg ID 2245.) As of May 1, the Jail population had been
reduced to 664 inmates. (Defs.’ Hr’g Ex. B, ECF No. 67.) As of May 4, there
were 85 inmates at the Jail under quarantine. (5/4/20 Hr’g Tr., ECF No. 56 at Pg
ID 1576.)
Prior to May 1, the Jail had tested 275 inmates for COVID-19. (Defs.’ Hr’g
Ex. B, ECF No. 67.) From May 1 to 7, 356 inmates were tested, and 171 inmates
refused testing.36 (5/7/20 Hr’g Tr., ECF No. 61 at Pg ID 1814.) As of May 6,
there were 10 COVID-positive inmates in the Jail.37 (Defs.’ Hr’g Ex. B, ECF No.
36 The Jail has not made clear why inmates have refused testing. (See 5/7/20 Hr’g Tr., ECF No. 61 at Pg ID 1821, 1826.) The CDC Fact Sheet for Patients indicates that the tests cause discomfort and that complications can occur during sample collection. Coronavirus Disease 2019 (COVID-19): Fact Sheet for Patients, Ctrs. for Disease Control & Prevention (Mar. 15, 2019), https://www.cdc.gov/coronavirus/2019-ncov/downloads/Factsheet-for-Patients2019-nCoV.pdf. It also has been reported that some prisoners refuse to test and conceal their COVID-19 symptoms to avoid being quarantined. See Gus Burns, Michigan Inmates Hide Coronavirus Symptoms to Avoid Prison Quarantine, MLive (Apr. 15, 2020), https://www.mlive.com/public-interest/2020/04/michiganinmates-hide-coronavirus-symptoms-to-avoid-prison-quarantine.html. 37 These test results are not a definitive sign that a large percentage of the Jail population is free of the virus. As the CDC has recognized, the current tests for coronavirus—which have not gone through the FDA’s approval process—may provide false negative results. See, e.g., Coronavirus Disease 2019 (COVID-19): Fact Sheet for Patients, supra note 36. According to one news article, approximately 15 percent of all tests conducted in the United States return false negatives, meaning that of every 100 individuals infected with COVID-19, 15 are told they do not have it. See This is How ‘False Positives’ and ‘False Negatives’
27

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3014 Page 28 of 71
67; 5/7/20 Hr’g Tr., ECF No. 61 at Pg ID 2003; Defs.’ Brief, ECF No. 85 at Pg ID 2904.) III. Plaintiffs’ § 2241 Petition on Behalf of the Medically-Vulnerable
Subclass A. Whether Relief is Available Under § 2241 or More Appropriately
Under § 1983 Defendants argue that § 2241 is not the proper avenue for Plaintiffs to pursue their claims because release is not an available remedy for the violation of their Eighth or Fourteenth Amendment rights. Defendants cite to Sixth Circuit decisions holding that an inmate may not challenge the conditions of confinement in a habeas petition. See, e.g., In re Owens, 525 F. App’x 287, 290 (6th Cir. 2013). As the Sixth Circuit recently acknowledged, however, “[t]he Supreme Court has neither foreclosed a prisoner from using, nor authorized a prisoner to use, habeas relief to challenge his conditions of confinement.” Wilson v. Williams, No. 203447, 2020 U.S. App. LEXIS 14049, at *4 (6th Cir. May 4, 2020); see also Boumediene v. Bush, 553 U.S. 723, 792 (2008) (declining to “discuss the reach of the writ with respect to claims of unlawful conditions of treatment or
Can Bias COVID-19 Testing, Forbes (May 7, 2020), https://www.forbes.com/sites/startswithabang/2020/05/07/this-is-how-falsepositives-and-false-negatives-can-bias-covid-19-testing/#4f6cfae21743. Therefore, 70 of the 465 Jail inmates who tested negative since May 1, may in fact be COVID-19 positive.
28

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3015 Page 29 of 71
confinement”); Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979) (deferring “to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement”); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (stating “we need not in this case explore the appropriate limits of habeas corpus as an alternative remedy to a proper action under § 1983”).
Like the Sixth Circuit in Wilson, this Court need not resolve the question here. This is because Plaintiffs seek release for medically-vulnerable inmates not because the conditions of their confinement fail to prevent irreparable constitutional injury, but based on the fact of their confinement. “Where a petition claims no set of conditions would be constitutionally sufficient, [the Sixth Circuit] construes the petitioner’s claim as challenging the fact of the confinement.” Wilson, 2020 U.S. App. LEXIS 14291, at *4 (citing Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011); see also Malam v. Adducci, No. 20-10829, 2020 WL 1672662, at *3 (E.D. Mich. Apr. 5, 2020) (finding § 2241 to be a proper avenue for the plaintiff to seek “immediate release from confinement as a result of there being no conditions of confinement sufficient to prevent irreparable constitutional injury under the facts of her case”); Refunjol v. Adducci, No. 2:20-cv-2099, 2020 WL 2487119, at *17 (S.D. Ohio May 14, 2020) (citing cases to conclude that the petitioners could bring their claims under § 2241).
29

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3016 Page 30 of 71
Defendants also briefly cite the Rooker-Feldman doctrine and the Full-Faith and Credit Act, 28 U.S.C. § 1783, as precluding the Court from adjudicating Plaintiffs’ § 2241 petition. (See ECF No. 30 at Pg ID 826.) “Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation,” however, “are deemed waived.” McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (citation and quotation marks omitted). In any event, the Court finds neither the doctrine nor statute applicable here where Plaintiffs are not seeking review of a state court decision.
For these reasons, the Court concludes that § 2241 is the proper vehicle for Plaintiffs to challenge the continued confinement of medically-vulnerable Jail inmates during the COVID-19 pandemic. Notably, federal judges have the authority to release detainees on bail while their habeas petitions are pending. See Lee v. Jabe, 989 F.2d 869, 871 (6th Cir. 1993) (citing Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990)); see also Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001); Savino v. Souza, No. 20-10617, 2020 WL 1703844, at *8-9 (D. Mass. Apr. 8, 2020); Clark v. Hoffner, No. 16-cv-11959, 2020 WL 1703870 (E.D. Mich. Apr. 8, 2020). “In order to receive bail pending a decision on the merits, prisoners must be able to show not only a substantial claim of law based on the facts surrounding the petition but also the existence of some circumstance making the motion for bail exceptional and deserving of special treatment in the interests of justice.” Lee, 989
30

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3017 Page 31 of 71
F.2d at 871 (quoting Dotson, 900 F.2d at 79) (internal quotations marks and citations omitted).
The likelihood of the Medically-Vulnerable Subclass prevailing on their habeas petition requires application of the same deliberate indifference analysis as the § 1983 claim of the Jail Class. The Court therefore addresses both together, in Section VI(A) below.
B. Exhaustion under § 2241 The requirement of the Prison Litigation Reform Act (“PLRA”), that administrative remedies must be exhausted before bringing suit challenging prison conditions, does not apply to habeas petitions. 28 U.S.C. § 3626(g)(2); McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811-12 (10th Cir. 1997). “Nor does the exhaustion requirement of 28 U.S.C. § 2254, which applies to petitions filed to challenge state court convictions, expressly apply to petitions filed under § 2241.” Graham v. Snyder, 68 F. App’x 589, 590 (6th Cir. 2003). Nevertheless, the Sixth Circuit has held that the exhaustion doctrine applies to § 2241 petitions. See Little v. Hopkins, 638 F.2d 953, 954 (6th Cir. 1981). Prisoners must exhaust their available remedies prior to filing a habeas petition except in unusual circumstances. Id.; Rose v. Lundy, 455 U.S. 509, 516 (1982). The Supreme Court has provided that the exhaustion requirement will be waived “‘in rare case where
31

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3018 Page 32 of 71
exceptional circumstances of peculiar urgency are shown to exist.’” Rose, 455 U.S. at 515-16 (quoting Ex parte Hawk, 321 U.S. 114, 117 (1944)).
Only available state remedies must be exhausted before seeking federal habeas relief. Exhaustion is not required where a remedy in state court is “unavailable,” O’Sullivan v. Boerckel, 526 U.S. 838, 847-848 (1999), or where the remedy is “inadequate or cannot provide the relief requested,” Goar v. Civiletti, 688 F.2d 27, 28-29 (6th Cir. 1982) (citations omitted). The Supreme Court has “held that state prisoners do not have to invoke extraordinary remedies when those remedies are alternatives to the standard review process and where the state courts have not provided relief through those remedies in the past.” O’Sullivan, 526 U.S. at 844 (citation omitted).
Defendants identify four instances where Oakland County Circuit Court judges released Jail inmates due to the coronavirus. In two cases, the state court did not identify the court rule or state statute on which it was relying to grant relief. In the remaining two cases, the court cited Michigan Compiled Laws Section 801.59b, which is part of Michigan’s County Jail Overcrowding Act. The statute does not set forth a remedy for inmates to pursue. Instead, it grants judicial officers the authority to suspend or reduce a jail sentence or modify bond in response to “a county jail overcrowding state of emergency.” See id.; Mich. Exec Order 2020-29 (Mar. 29, 2020). To the extent prisoners have obtained relief
32

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3019 Page 33 of 71
through this mechanism during the coronavirus pandemic, it is not part of the “standard review process” and is not a remedy through which state courts have “provided relief … in the past.”
Defendants also argue that pretrial detainees may seek relief by filing a motion for modification of their prior release decisions. A district judge in the District Court for the Western District has found such an available remedy in Michigan Court Rule 6.106H, concluding that it “contemplates circumstances that warrant emergency release and provides an avenue to appeal a custody decision. Evil v. Whitmer, No. 1:20-cv-343, 2020 WL 1933685, at *3 (W.D. Mich. April 22, 2020). The rule only provides for emergency release, however, “as a result of a court order or law requiring the release of prisoners to relieve jail conditions[.]” Mich. Ct. R. 6.106(H)(3). Additionally, the rule states that a reviewing court may “stay, vacate, modify, or reverse [a] release decision” only based on “an abuse of discretion.” Id. at R. 6.106(H)(1).
But even if these state remedies were available to Plaintiffs to seek the relief sought here, the failure to exhaust does not divest this Court of jurisdiction over their petition. Rockwell v. Yukins, 217 F.3d 421, 423 (6th Cir. 2000). A federal habeas court may consider unexhausted claims where “‘unusual’” or ‘exceptional’ circumstances” exist. Id. (quoting O’Guinn v. Dutton, 88 F.3d 1409, 1412 (6th Cir. 1996) (citing Granberry v. Greer, 481 U.S. 129 (1987))).
33

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3020 Page 34 of 71
The Court can conceive of few more unusual or exceptional circumstances than the current pandemic. In fact the Court imagines that judges in the future will use this pandemic as the quintessential example of when unusual and exceptional circumstances exist. IV. Plaintiffs’ § 1983 Claim on Behalf of the Jail Class - Exhaustion
The PLRA requires prisoners to exhaust all administrative remedies before filing suit under federal law. 42 U.S.C. § 1997e(a). The exhaustion requirement is “mandatory,” Woodford v. Ngo, 549 U.S. 199, 219 (2007), and courts may not excuse an inmate’s failure to exhaust because of “special circumstances,” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016). Nevertheless, in Ross, the Supreme Court “underscore[d]” the PLRA’s “built-in exception to the exhaustion requirement: A prisoner need not exhaust remedies if they are not ‘available.’” 136 S. Ct. at 1855. The exhaustion requirement must be applied “to the real-world workings of prison grievance systems.” Id. at 1859.
The Ross Court identified three circumstances in which an administrative remedy, although officially on the books, may be deemed “unavailable”: (i) when an administrative procedure “operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (ii) when an administrative scheme is “so opaque that it becomes, practically speaking, incapable of use[]”; and (iii) where “prison administrators thwart inmates from
34

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3021 Page 35 of 71
taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859-60. Determining whether any of these circumstances exist may require factual development. See id. at 1862.
Addressing the exhaustion requirement in the context of the COVID-19 pandemic, Supreme Court Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, recently indicated that an exception to the PLRA’s exhaustion requirement may also arise where “a prison grievance system cannot or will not respond to an inmate’s complaint.” Valentine v. Collier, -- U.S. --, 2020 WL 2497541, *1 (May 14, 2020). Justice Sotomayor suggested that when faced with “a rapidly spreading pandemic[,]” administrative remedies may be “unavailable”:
I caution that in these unprecedented circumstances, where an inmate faces an imminent risk of harm that the grievance process cannot or does not answer, the PLRA’s textual exception could open the courthouse doors where they would otherwise stay closed. Id.; see also Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1173 (7th Cir. 2010) (“[W]e think it’s also true that there is no duty to exhaust, in a situation of imminent danger, if there are no administrative remedies for warding off such a danger.”). At this stage of the proceedings, there is sufficient evidence on this record to conclude that the Jail’s grievance procedures are “unavailable” to Plaintiffs. Corrections officers refuse to provide grievance forms to some inmates who request them. Corrections officers threaten to transfer inmates to COVID-19
35

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3022 Page 36 of 71
infested areas if they complain. When Mr. Lee submitted a grievance, the form was simply handed to the corrections officer being grieved and Mr. Lee was transferred from the East Annex where there were no COVID-19 positive inmates to the Main Jail, where there were many.
This record evidence reflects that Plaintiffs’ affirmative efforts to exhaust have been thwarted by machination and intimidation. See Risher v. Lappin, 639 F.3d 236, 240-41 (6th Cir. 2011) (requiring “affirmative efforts,” but concluding that an inmate “was not required to make additional efforts beyond the scope of the Bureau’s regulations simply because the Regional Director failed to supply him with a document, something it was obligated to do”); Himmelreich v. Fed. Bureau of Prisons, 766 F.3d 575, 577-78 (6th Cir. 2014), aff’d sub nom. Simmons v. Himmelreich, -- U.S. --, 136 S. Ct. 1843 (2016); Rancher v. Franklin Cty., 122 F. App’x 240, 241-42 (6th Cir. 2005) (excusing exhaustion when an inmate made numerous requests for medical treatment but received no response and presented evidence that, in practice, the prison refused to accept medical grievances). In Himmelreich, the Sixth Circuit vacated the district court’s grant of summary judgment on exhaustion grounds because the alleged retaliation, if true, “would render the grievance process functionally unavailable for a person of ordinary firmness.” 766 F.3d at 578. In that case, the plaintiff alleged that a prison official threatened to transfer him to a higher-security prison or penitentiary where he
36

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3023 Page 37 of 71
would more likely be attacked and placed the plaintiff in a Special Housing Unit for filing a lawsuit. Id. at 577-78. More alarming, here, corrections officers have threatened—and in Mr. Lee’s case, carried out the threat—to transfer inmates who dare to complain to areas infested with a deadly and highly contagious virus.
Moreover, the Jail’s grievance procedures do not appear to provide an avenue for medically-vulnerable inmates to seek release on the basis of the serious and deadly risk COVID-19 poses. Rather, the Jail’s Inmate Guide states that grievances are available for prisoners who “wish[] to complain regarding the living conditions, procedures, facilities or treatment in the Oakland County Jail[.]” (Defs.’ Resp. Ex. B, ECF No. 82-2 at Pg ID 2875.) Defendants lack the authority to release prisoners on their own.
For these reasons, at this preliminary stage, the Court concludes that the PLRA’s exhaustion requirement does not preclude Plaintiffs from pursuing their claims in this lawsuit. V. Whether Plaintiffs’ § 1983 Claims Should Proceed as a Class Action and
Whether Their Request for Habeas Relief Under § 2241 is Appropriate as a Representative Petition Rule 23 of the Federal Rules of Civil Procedure governs class certification. Numerous courts have concluded that a petition for writ of habeas may be brought as a class action. See, e.g., Wilson v. Williams, -- F. Supp. 3d --, 2020 WL 1940882, at *6 (N.D. Ohio Apr. 22, 2020); Mays v. Dart, No. 20 C 2134, 2020 WL
37

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3024 Page 38 of 71
1987007, at *16 (N.D. Ill. Apr. 27, 2020) (citing cases). Those courts generally apply the provisions of Rule 23 to determine whether a representative action is appropriate. Id. However, several circuit courts have “clearly pointed out that a representative prisoners proceeding is merely analogous to a Rule 23 class action, and that the provisions of Rule 23 need not be complied with precisely.” United States ex rel. Morgan v. Sielaff, 546 F.2d 218, 221 n.5 (7th Cir. 1976) (citing Bijeol v. Benson, 513 F.2d 965, 968 (7th Cir. 1975) and United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir. 1974)); Napier v. Gertrude, 542 F.2d 825, 827 n.2 (10th Cir. 1976).
Pursuant to Rule 23, a class must meet the requirements of numerosity, commonality, typicality, and adequate representation. Fed. R. Civ. P. 23(a). Additionally, one of the requirements of Rule 23(b) must be satisfied. Plaintiffs seek certification under Rule 23(b)(2), which permits certification where the defendant “has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]” Fed. R. Civ. P. 23(b)(2). Plaintiffs bear the burden of showing that class certification is proper. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).
As a preliminary matter, at this time the Court is modifying the MedicallyVulnerable Subclass to include individuals 60 years of age and older or who,
38

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3025 Page 39 of 71
regardless of age, experience any of the following underlying medical conditions: (i) chronic lung disease including chronic obstructive pulmonary disease (e.g., bronchitis or emphysema); (ii) moderate to severe asthma; (iii) serious heart conditions; (iv) immunocompromising conditions including cancer treatment, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications: (v) severe obesity (body mass index of 40 or higher); (vi) diabetes; (vii) chronic kidney or liver disease; (viii) metabolic disorders; or (ix) current or recent (last two weeks) pregnancy.
Defendants contend that the Medically-Vulnerable Subclass is not sufficiently defined so as to be capable of certification. According to Defendants, because some factual inquiry is needed to determine whether individuals fall within the subclass and subclass membership is not based on objective criteria, the subclass is not appropriate for class certification. As Defendants’ brief acknowledges, however, “[t]he purpose of this requirement is to ensure administrative feasibility, including the ability to notify absent class members in order to provide them an opportunity to opt out and avoid the potential collateral estoppel effects of a final judgment.” (ECF No. 82 at Pg ID 2869 (quoting Kensu v. Mich. Dep’t of Corr., 18-cv-10175, 2020 WL 1698662, at *7 (E.D. Mich. Apr. 8, 2002) (citing Cole v. City of Memphis, 893 F.3d 530, 541 (6th Cir. 2016)).)
39

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3026 Page 40 of 71
Kensu, however, involved certification under Rule 23(b)(3). Plaintiffs seek certification under Rule 23(b)(2). In Cole, the Sixth Circuit held that this need for “‘ascertainability’ is inapplicable to Rule 23(b)(2).”38 839 F.3d at 541-42 (joining three other Circuits in reaching this conclusion).
A. Numerosity When Plaintiffs filed their motion for class certification a month ago, the Jail housed 863 inmates. (See Defs.’ Hr’g Ex. B, ECF No. 67 at Pg ID 2245.) Based on a report of the Michigan Joint Task Force and Pretrial Incarceration, Plaintiffs estimate that this population is evenly divided between pretrial and convicted individuals. At the time of the evidentiary hearing, there were 220 individuals on Defendants’ list of medically-vulnerable inmates. These numbers are substantial enough to satisfy the numerosity requirement. See Peters v. Cars to Go, Inc., 184 F.R.D. 270, 276 (W.D. Mich. 1998) (citation omitted) (“[A] class numbering more than 40 members usually satisfies the impracticability requirement, and classes containing 100 or more members routinely satisfy the numerosity requirement.”). Defendants do not argue that these numbers are insufficient to satisfy the numerosity requirement of Rule 23. Instead, they argue that Plaintiffs cannot show numerosity because none of them exhausted their administrative remedies and they
38 Thus, while the Cole court explained the purpose of the ascertainability requirement, it expressly declined to require it in the Rule 23(b)(2) class action before it. 839 F.3d at 542.
40

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3027 Page 41 of 71
fail to identify any potential class member who has. Defendants’ argument does not prevail in light of the Court’s ruling on exhaustion.
B. Commonality The commonality requirement of Rule 23(a)(2) “simply requires a common question of law or fact.” Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 884 (6th Cir. 1997); see also Dukes, 564 U.S. at 350. The Sixth Circuit has explained that “‘[t]he interests and claims of the various plaintiffs need not be identical. Rather, the commonality test is met when there is at least one issue whose resolution will affect all or a significant number of the putative class members.’” Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 424 (6th Cir. 1998) (quoting Forbush v. J.C. Penney Co., Inc., 994 F.2d 1101, 1106 (5th Cir. 1993)). All of the Jail’s inmates are allegedly suffering the same injury due to Defendants’ alleged failure to adequately respond to COVID-19. Regardless of their housing locations, security class, date of incarceration, or cell assignments, Plaintiffs allege that Defendants have not instituted sufficient measures throughout the Jail to protect them from the serious risk of harm posed by the virus. There are common questions of law and fact for the proposed class and subclasses, such as: what are the conditions within the Jail, what has been Defendants’ response to COVID-19, and are Defendants’ actions and/or inactions reflective of their deliberate indifference to the serious risk of harm the virus poses to all inmates.
41

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3028 Page 42 of 71
There is at least one common question that must be resolved to adjudicate the habeas petition brought by the Medically-Vulnerable Subclass: whether COVID-19 presents such a severe risk of harm that it is unconstitutional to continue confining such individuals in the Jail. This issue is at the core of Plaintiffs’ § 2241 petition. “The commonality test is qualitative rather than quantitative, that is, there need be only a single issue common to all members of the class.” In re Am. Med. Sys., Inc., 75 F.3d 1069, 1080 (6th Cir. 1996) (quotation marks and citation omitted). Even if individualized determinations as to placement suitability are necessary, the “mere fact that questions peculiar to each individual member of the class remain after the common questions of the defendant’s liability have been resolved does not dictate the conclusion that a class action is impermissible.” Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir. 1998); see also Hill v. Snyder, 308 F. Supp. 3d 893, 914 (E.D. Mich. 2018) (finding commonality among class members challenging state’s statutory scheme barring them from parole eligibility “[r]egardless of individual factors regarding a prisoner’s likelihood of parole”); Wilson, 2020 WL 1940882, at *7 (finding that medically-vulnerable inmates seeking release from prison due to the coronavirus satisfied the commonality requirement); Mays, 2020 WL 1987007, at *17 (same).
42

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3029 Page 43 of 71
C. Typicality “A claim is typical if ‘it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if [the named plaintiff’s] claims are based on the same legal theory.’” Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007) (quoting In re Am. Med. Sys., Inc., 75 F.3d at 1082). Typicality is satisfied for the Jail Class, as well as the Pre-Trial and PostConviction Subclasses at large because Plaintiffs allege the same injurious conduct stemming from Defendants’ response to the coronavirus pandemic. This is because they advance the same legal theory. In other words, Plaintiffs assert that they are exposed to a serious risk of contracting the deadly coronavirus because Defendants have acted deliberately indifferent in violation of their Eighth or Fourteenth Amendment rights by failing to institute safety measures throughout the Jail to prevent the virus from quickly spreading from inmate to inmate (and failing to release the medically vulnerable based on the fact of their confinement). D. Adequacy of Representation The Sixth Circuit has identified two criteria relevant to deciding whether the named plaintiff “will fairly and adequately protect the interests of the class,” Fed. R. Civ. P. 23(a)(4): “(1) the representative must have common interests with unnamed members of the class and (2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel.” In re
43

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3030 Page 44 of 71
Am. Med. Sys., Inc., 75 F.3d at 1083 (internal quotations and citations omitted). Defendants raise two arguments challenging Plaintiffs’ adequacy: (i) no Plaintiff has exhausted his administrative remedies and (ii) no Plaintiff is a pretrial detainee.
Defendants’ first argument lacks merit in light of the Court’s exhaustion analysis. As to the second, Plaintiffs’ Complaint and Mr. Briggs’ declaration reflect that he was a pretrial detainee on the date this lawsuit was filed. (Compl., ECF No. 1 at Pg ID 8; Briggs Decl., ECF No. 5-4 at Pg ID 277.) The Oakland County Circuit Court’s public website reflects that Mr. Briggs in fact remains a pretrial detainee in Case Number 2019-272964-FH and that he was arraigned on December 3, 2019, and is still awaiting trial, with his pretrial date repeatedly continued due to COVID-19.39
E. Rule 23(b)(2) Again, certification under Rule 23(b)(2) is appropriate where the party seeking class certification shows that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “Rule 23(b)(2) applies only when a single
39 See Court Explorer, Oakland County, https://courtexplorer.oakgov.com/oaklandcounty/ (last visited May 20, 2020) (insert “Last Name” “Briggs”; then insert “First Name” “Richard”; then follow “Briggs, Richard, Mareno” hyperlink associated with “2019-272964-FH”).
44

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3031 Page 45 of 71
injunction or declaratory judgment would provide relief to each member of the class.” Dukes, 564 U.S. at 360. Courts have found that the requirements of Rule 23(b)(2) are “almost automatically satisfied in actions primarily seeking injunctive relief.” Williams v. City of Philadelphia, 270 F.R.D. 208, 222 (E.D. Pa. 2010) (citing Baby Neal v. Casey, 43 F.3d 48, 58 (3d Cir. 1995)) (additional citation omitted). “Numerous courts have held that Rule 23(b)(2) is an appropriate vehicle in actions challenging prison conditions.” Id. at 222 (citing cases).
The Jail Class, Pre-trial Subclass, and Post-Conviction Subclass seek an injunction requiring Defendants to take appropriate action to improve the conditions in the Jail, which Plaintiffs claim render the Jail a ticking timebomb for widespread contagion of COVID-19. The Medically-Vulnerable Subclass challenges the policies and practices through which Defendants have acted or refused to act on grounds that apply generally to all inmates at heightened risk of contracting the coronavirus due to their age and/or underlying medical conditions. This subclass is seeking an injunction that will protect them from the unique risk of harm they face from coronavirus. The Court can fashion injunctive relief that requires Defendants to take specific actions to address this risk. The § 2241 petition brought on behalf of the Medically-Vulnerable Subclass may not fit perfectly within Rule 23(b)(2) because the Court’s injunction may not result in the same relief for every member of the subclass. Nonetheless, this Court need only
45

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3032 Page 46 of 71
look to the provisions of Rule 23 in determining whether a representative action is appropriate and need not find precise compliance with the rule. See supra.
The Court concludes that the Jail Class and Subclasses as defined in this Opinion meet the requirements for class certification and should be provisionally certified. This provisional determination is made with the understanding that it “may be altered or amended before final judgment.” Fed. R. Civ. P. 23(c)(1)(C). VI. Whether Plaintiffs are Entitled to a Preliminary Injunction for the Jail
Class and/or Medically-Vulnerable Subclass The relevant factors for deciding whether to issue a preliminary injunction are well-established:
(1) whether the movant has a “strong” likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction. McPherson v. Mich. High Sch. Athletic Ass’n, 119 F.3d 453, 459 (6th Cir. 1997) (en banc) (quoting Sandison v. Mich. High Sch. Athletic Ass’n, 64 F.3d 1026, 1030 (6th Cir. 1995)). These factors are balanced against one another and should not be considered prerequisites to the grant of a preliminary injunction. McPherson, 119 F.3d at 459.
46

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3033 Page 47 of 71
A. Whether Plaintiffs are Likely to Succeed in Establishing a Violation of Their Constitutional Rights 1. Monell Liability
Plaintiffs are essentially suing Oakland County alone, as they name Sheriff Bouchard and Captain Childs solely in their official capacities. “Official capacity suits . . . ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’”40 Kentucky v. Graham, 473 U.S. 159, 16568 (1985) (quoting Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 690 n.5 (1978)). “[A] governmental entity is liable under § 1983 only when the entity itself is a moving force behind the [constitutional] deprivation.” Id. (internal quotation marks and citations omitted). “[I]t is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Monell, 436 U.S. at 694.
Defendants argue that Plaintiffs cannot show that Oakland County maintains an unconstitutional policy or practice. Defendants seem to be contending that because the current pandemic presents a “novel” situation—one “that has never confronted municipalities” (ECF No. 30 at Pg ID 833)—there can be no municipal
40 For this reason, Defendants argue that Sheriff Bouchard and Captain Childs should be dismissed from this lawsuit. (ECF No. 30 (citing Barber v. City of Salem, 953 F.2d 232, 237 (6th Cir. 1992).) The Court agrees and is dismissing them as parties to this lawsuit.
47

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3034 Page 48 of 71
policy or custom responsible for the constitutional violation of Plaintiffs’ rights. This argument conflates the concept of municipal liability with qualified immunity. Regardless of the exceptional nature of the circumstances presented,41 liability can attach if Defendants are aware of the serious threat to Jail inmates posed by COVID-19 and respond to it with a policy that is deliberately indifferent to Plaintiffs’ constitutional rights. “[O]fficial municipal policy extends to ‘the acts of its policymaking officials[,]’” such as Sheriff Bouchard and Captain Childs. Richmond, 885 F.3d at 948.
2. Deliberate Indifference Prison officials must guarantee the safety of and provide adequate medical care to both convicted inmates and pretrial detainees. The Eighth Amendment’s prohibition against cruel and unusual punishment establishes this obligation as it relates to convicted inmates. Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Pretrial detainees are similarly protected under the Fourteenth Amendment’s Due Process Clause. Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004) (citing Bell, 441 U.S. at 545).
41 While COVID-19 is a new virus not previously diagnosed in people prior to late 2019, highly contagious viruses are not unique. Unfortunately, nor is the risk of highly contagious viruses or infections spreading throughout a prison facility. See, e.g., Duvall v. Dallas Cty., 631 F.3d 203, 207 (5th Cir. 2011) (MRSA).
48

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3035 Page 49 of 71
In the context of the medical needs of convicted inmates or pretrial detainees, a plaintiff must show that the defendant “acted with deliberate indifference to [the plaintiff’s] medical needs.” Blackmore, 390 F.3d at 895 (citing Estelle, 429 U.S. at 104). To show “deliberate indifference,” a plaintiff must satisfy two components: one objective and the other subjective.42 Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001).
a) Objective Component To satisfy the objective component, inmates must demonstrate that they are “incarcerated under conditions posing a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994); see also Richko v. Wayne Cty., 819 F.3d 907, 915 (6th Cir. 2016) (quoting Amick v. Ohio Dep’t of Rehab. & Corr., 521 F. App’x 354, 361 (6th Cir. 2013)) (explaining that a plaintiff satisfies “the objective component by showing that, ‘absent reasonable precautions, an inmate is exposed to a substantial risk of serious harm’”). Though Defendants cite case law discussing the objective component, (see ECF No. 30 at Pg ID 834-35), they have not disputed that the objective component
42 The Sixth Circuit has not decided whether the Supreme Court’s decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015), abrogated the subjective component when evaluating the deliberate indifference claims of pretrial detainees. See Richmond v. Huq, 885 F.3d 923, 938 n.3 (6th Cir. 2018). The Court will proceed as if pretrial detainees must still satisfy both components, even though the Sixth Circuit has recognized that decisions of other circuit courts “call[] into serious doubt” whether a pretrial detainee must satisfy the subjective component. Id.
49

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3036 Page 50 of 71
is satisfied here. Mekani v. Homecomings Fin., LLC, 752 F. Supp. 2d 785, 790 n.2 (E.D. Mich. 2010) (stating that where a plaintiff fails to dispute the arguments a defendant makes for dismissal of a claim, “the Court assumes he concedes this point”).
Moreover, the above record shows that the congregate nature of the Jail— housing hundreds of inmates who share sinks, toilets, and showers, as well as eating, sleeping, and living spaces—makes it an ideal environment for the spread of COVID-19. This, along with the fact that there is an active outbreak of COVID19 at the Jail and the fact that COVID-19 is a highly infectious virus that poses a significant risk of severe illness and death, particularly for the medically vulnerable, renders the objective component easily satisfied in this case. Wilson, 2020 WL 1940882, at *8 (finding objective component satisfied where jail housed medically-vulnerable population and experienced COVID-19 outbreak); Valentine, -- U.S. --, 2020 WL 2497541, at *2 (Sotomayor, J.) (noting the district court’s “detailed, careful findings,” which included “the ‘obvious’ risk of [COVID-19] to the older men in the [Jail] Unit”).
b) Subjective Component “To satisfy the subjective component, the plaintiff must allege facts which, if true, would show that the official being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference,
50

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3037 Page 51 of 71
and then disregarded that risk.” Comstock, 273 F.3d at 703 (citing Farmer, 511 U.S. at 834).
Here, it is undisputed that Defendants perceived facts from which to infer substantial risk: the danger COVID-19 poses to the Jail Class and in particular to the Medically-Vulnerable Subclass is practically common knowledge. Indeed, the CDC’s guidance on how to curb the spread of coronavirus, as well as their warnings about the increased threat the virus poses to the medically vulnerable and people living in congregate environments such as prison and detention facilities, has been the topic of extensive national and local media coverage. It also is undisputed that Defendants did in fact draw the inference that COVID-19 poses a risk to the members of the Jail Class and the Medically-Vulnerable Subclass particularly. Cf. Farmer, 511 U.S. at 842 (“[A] fact finder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.”). Defendants concede as much in their brief: “[p]rior to the first confirmed COVID-19 case in the jail, Defendants took an immediate and proactive response to the COVID-19 pandemic to curb an outbreak or spread at the Oakland County Jail.” (ECF No. 30 at Pg ID 810.) Moreover, Nurse Warren testified that she, Captain Childs, and Lieutenant McLellan met and decided that the medically vulnerable would be tested before the general population because the former group was in “greater need.” (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2051-52.)
51

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3038 Page 52 of 71
The remaining issue, therefore, is whether Defendants have disregarded the risk that COVID-19 could imperil the health and lives of Jail inmates. Before getting there, the Court pauses to discuss credibility.
One of Defendants’ primary arguments in response to Plaintiffs’ claims is that Plaintiffs and the putative Jail Class members who have provided declarations in support of their claims lack credibility. Defendants maintain that “the affiants’ criminal histories are replete with convictions related to crimes involving theft or dishonesty.” (ECF No. 30 at Pg ID 815 (citing ECF No. 30-5).) Nothing about the summary of purported convictions provided by Defendants suggests that it comes from an official or reliable source. (See Defs.’ Mot. Ex. E, ECF No. 30-5.) It is not a print-out of the declarants’ criminal histories, but a rough list that an unidentified individual has prepared from an unknown source. Nevertheless, the Court takes into consideration that some of the declarants may have previous and recent convictions which could be considered when assessing their credibility under the Federal Rules of Evidence. See Fed. R. Evid. 609. The Court also takes into consideration that, while Plaintiffs and other inmate declarants detail events and interactions with specifically identified Jail staff members, Defendants have not rebutted many of the inmates’ accounts with testimony from any of the identified or named staff members.
52

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3039 Page 53 of 71
What the Court finds more significant when assessing credibility is that the bulk of Defendants’ evidence concerning the conditions in the Jail and what is being done to prevent the spread of coronavirus comes primarily from two individuals—one who admittedly spends “seldom” time in its housing areas and the other who had not been inside the housing areas for weeks before the evidentiary hearing. Nurse Warren and Captain Childs have painted a picture of those areas which is not based on their own knowledge and may not even be based on reality. Finally, the Courts finds it noteworthy that Defendants presented no expert testimony on the adequacy of their COVID-related policies or their implementation of those policies.
Pre-Trial & Post-Conviction Subclasses According to Defendants: “Plaintiffs cannot show that Defendants have been deliberately indifferent . . . because the overwhelming evidence establishes Defendants previously put into place nearly all of Plaintiffs’ requests and the subsequent requirements of the Court’s TRO at the jail.” (ECF No. 30 at Pg ID 837.) Undoubtedly, Defendants have taken steps to curb the spread of COVID-19, but the overall record reflects a willingness to continue housing Jail Class members in a manner that increases their risk of infection. First, though the Jail outlined enhanced cleaning and sanitation policies and procedures, members of the Jail Class continue to share toilets, sinks, showers,
53

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3040 Page 54 of 71
phones, brooms and other communal spaces and items, sometimes without disinfection between each use. The declarations of several inmates reflect that Jail Class members still have insufficient access to soap and cleaning supplies. And while corrections officers were wearing masks on the day of the Jail inspection, in the days that have followed, some either do not wear masks or wear masks under their chins. Plaintiffs further note that, though corrections officers typically wear gloves when serving food, they usually do not do so when distributing inmate mail and hygiene supplies.
Further, regarding social distancing, Defendants posted signs on or around May 1, telling inmates to sleep “head to toe,” (ECF No. 47 at Pg ID 1425)— presumably to create distance from other inmates while they sleep. Captain Childs suggests that social distancing is possible in multi-person cells if inmates remain in the same positions on opposite corners of the cells for the 23 hours a day they must remain there. (5/7/20 Hr’g Tr., ECF No. 62 at Pg ID 1858-59.) This suggestion is disingenuous at best. And despite their understanding of the risk associated with the close quarters in which inmates reside, as of May 1, almost half of the Jail’s population was housed in multi-person cells, with a significant number in housing units with more than 10 individuals. At the same time, many of the Jail’s housing cells remain empty. (See Defs.’ Hr’g Ex. C, ECF No. 68.) The fact that Defendants offer no explanation regarding why individuals have not been moved
54

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3041 Page 55 of 71
to these available cells in order to maximize the distance between inmates suggests a disregard of the substantial risk of contracting a virus that already has been demonstrated to be lethal.
Second, despite Defendants’ contention that they have instituted a strict quarantine procedure, the evidence reflects that this policy is insufficient, resulting in Jail Class members being placed at greater risk of contracting COVID-19. For example, Mr. Watkins was housed in A-4 (a one-person cell) from April 16 to May 6. (See Watkins Decl., ECF No. 64-1 at Pg ID 1972.) On May 6, he was reassigned to a 10-person cell on C-Block in which there were seven other inmates and, later that day, was tested for coronavirus. (Id. at Pg ID 1972; Warren Decl., ECF No. 83-1 at Pg ID 2888.) Two days later, Defendants learned that Mr. Watkins was COVID-negative. (Warren Decl., ECF No. 83-1 at Pg ID 2888.) Mr. Watkins was informed of this test result but, approximately two hours later, was informed that he in fact was COVID-positive—a fact that, according to Nurse Warren, the rectification of “human error” revealed. (Id. at Pg ID 2888) Nurse Warren declared that, as a result of Mr. Watkins’ positive status, the entire row of cells associated with A-4 was quarantined. (Warren Decl., ECF No. 83-1 at Pg ID 2888.)
Critically, however, Nurse Warren does not contend that the 10-person cell on C-Block—where Mr. Watkins ate, slept, and socialized during the two days
55

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3042 Page 56 of 71
immediately preceding his COVID-19 diagnosis—was quarantined. (See id.) Perhaps more critically, there is no evidence that Nurse Warren or her staff—who are responsible for deciding which inmates and cells to quarantine—or other Jail staff have instituted a policy for contact tracing. This is so despite knowledge that COVID-positive individuals can remain asymptomatic and contagious, thereby exposing members of the Jail Class to COVID-19. (See, e.g., 5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2069-70.)
Third, Plaintiffs’ evidence suggests that Defendants transferred inmates from the East Annex, where there are currently no cases of COVID-19, to the Main Jail, where there are multiple cases of the virus. These allegations, if true, suggest that Defendants are deliberately indifferent to the risk of accelerating an outbreak that already exists in the Jail. It also reflects deliberate indifference to the individuals being moved by placing them at greater risk of contracting the virus.
Medically-Vulnerable Subclass Members of the Medically-Vulnerable Subclass face a greater risk of serious outcomes from COVID-19 than the general inmate population. Indeed, Defendants concede that the medically vulnerable are in “greater need” because of the heightened risk of serious complication from the virus. (5/6/20 Hr’g Tr., ECF No. 65 at Pg ID 2051-52.) And public health experts agree that people over the
56

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3043 Page 57 of 71
age of 60 or with underlying conditions face a higher risk of experiencing severe COVID-19 outcomes, including death.
Defendants argue that, because they have taken reasonable steps to address the impact of COVID-19 within the Jail, Plaintiffs’ allegation that Defendants have been deliberately indifferent to the needs of the Medically-Vulnerable Subclass fails. Plaintiffs, however, challenge their continued confinement on the grounds that no condition of confinement can ensure their reasonable safety from coronavirus.
The record shows that the congregate nature of a jail facility makes it impossible to put in place and enforce precautionary measures and, thereby, ensure the reasonable safety of medically-vulnerable inmates. Indeed, in the midst of a pandemic for which there is no vaccine, limited effective treatment, no contact tracing, and rapid spread via asymptomatic individuals, to place especially susceptive individuals into a highly confined communal space—with limited access to clean facilities, limited ability to socially distance from others, and increased exposure via potentially infected Jail staff and inmates cycling in and out of the Jail—and then, to ask them to tolerate the risk of whatever catastrophic result that may befall them, is to demean “the essence of human dignity inherent in all persons.” Brown, 563 U.S. at 510-11. Such a suggestion “has no place in civilized society.” Id.
57

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3044 Page 58 of 71
Considering the weight of the public health evidence demonstrating the
medically-vulnerable population’s unique, specific, and life-threatening
susceptibility to COVID-19—paired with the communal nature of jail facilities, the
Court finds that home confinement or early release is the only reasonable response
to this unprecedented and deadly pandemic.43, 44 In other words, the inherent
characteristics of the Jail cannot be altered to any extent that would make it safe
enough to protect the members of the Medically-Vulnerable Subclass from the
potentially lethal combination of their unique vulnerabilities and COVID-19’s
43 As discussed infra, an individualized consideration of the suitability for release of a subclass member, based on factors such as public safety, is required.
44 The Court finds it troubling that, despite understanding that medicallyvulnerable individuals are uniquely susceptive to the harms of COVID-19 and that the CDC and medical experts have emphasized the need to implement specific measures to protect them, Defendants have evidenced little care in their attempts to implement even the most basic elements of the precautions necessary to curb the risk that COVID-19 could kill members of the Medically-Vulnerable Subclass.
This conclusion is based on all of the reasons discussed above as to the PreTrial and Post-Conviction Subclasses. The Court further notes that Defendants adhere to special housing protocols for inmates with special medical needs and diagnosed mental health issues, but admit that they have crafted no such plan for a group of inmates especially susceptive to the often deadly health complications caused by the present pandemic. Not only have Defendants failed to do so, this lack of planning persists as many cells remain empty. Moreover, considering that Defendants currently house inmates throughout the Jail without regard to their medical vulnerabilities and their specific failure to quarantine the 10-person cell in C-Block in which Mr. Watkins resided prior to his positive test result, Defendants likely exposed and continue to expose members of the Medically-Vulnerable Subclass to COVID-19.
58

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3045 Page 59 of 71
health-shattering consequences. Any response other than release or home confinement placement constitutes deliberate indifference.
Yet, despite the authority to take action to release medically-vulnerable inmates and the exhortations of the same by Governor Whitmer and experts, the record suggests that Defendants are exercising their authority at a pace that disregards the seriousness of the risk faced by medically-vulnerable inmates. On March 29, Governor Whitmer issued an Executive Order encouraging county jails to consider actions to reduce their inmate populations. On or around March 20, Defendants forwarded to Oakland County Court Administrators an Excel spreadsheet containing the names and information relevant to 42 inmates whose conditions ranged from “a [very] high medical risk” to “a medical risk if they become infected” along with an expression of gratitude to the “courts for working with [them] to help reduce the jail population during [the] pandemic.” (ECF No. 30-1 at Pg ID 862; ECF No. 85 at Pg ID 2900.) The release of 27 medicallyvulnerable inmates followed this effort.
Critically, however, the record is lacking in support that, during the almost eight weeks that passed between March 20 and May 13, Defendants expended even a basic level of effort to continue the release initiative. By Defendants’ own account, on May 13, they forwarded the names of 17 medically-vulnerable inmates
59

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3046 Page 60 of 71
to the Oakland County courts.45 Notably, however, as of the same day, Defendants report that 248 medically-vulnerable inmates remain in the Jail. This means that, at this moment, Defendants are actively seeking the release of only 7 percent of the medically-vulnerable population. Even if the Court were to exclude the 121 inmates Defendants contend should not be released due to their assaultive charge or history, Defendants are actively seeking the release of only 13 percent of the total number of medically-vulnerable inmates without assaultive histories, while the rest remain in harm’s way.
Defendants contend that they are reviewing the files of the remaining inmates. But some of these inmates have been incarcerated or detained well before Michigan’s first diagnosed coronavirus case, and well before Defendants submitted their first list of names in March. This has allowed Defendants at least two months to review and make decisions as to these inmates, yet they have not.
Ultimately, in light of Defendants’ awareness of the deathly risk that COVID-19 poses to the medically-vulnerable population, Defendants’ failure to make prompter, broader, and more meaningful use of their authority to implement
45 Notably, four of 17 inmates had the following original release dates: May 13, May 16, May 21, and May 28. The Court is skeptical that the submission of the names of these inmates—who very likely will be released sometime before the state court can make a decision as to home confinement or early release—was for the legitimate purpose of seeking relief as opposed to bolstering the number of inmates for whom Defendants may now claim they have sought alternative custody.
60

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3047 Page 61 of 71
what appears to be the only solution capable of adequately protecting medicallyvulnerable inmates may constitute deliberate indifference under the Eighth Amendment.
B. Whether Plaintiffs Will Suffer Irreparable Harm Absent an Injunction
Plaintiffs must “demonstrate that irreparable injury is likely in the absence of an injunction,” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008), and that the injury is “both certain and immediate, rather than speculative or theoretical,” Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991). Notably, “[w]hen constitutional rights are threatened or impaired, irreparable injury is presumed.” Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012); see also Overstreet v. Lexington-Fayette Urban Cty. Gov., 305 F.3d 566, 578 (6th Cir. 2002) (noting that “a plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a violation of the plaintiff’s constitutional rights”); Rhinehart, 509 F. App’x at 514 (suggesting that an allegation of “continuing violation of . . . Eighth Amendment rights” gives rise to a finding of irreparable harm).
Here, Plaintiffs contend that “Defendants violate Plaintiffs’ Eighth and Fourteenth Amendment rights by incarcerating them in conditions that fail to adequately mitigate against the spread of a potentially fatal virus in the midst of a growing pandemic and in spite of their knowledge and ability to do so.” (ECF No.
61

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3048 Page 62 of 71
1 at Pg ID 56.) Plaintiffs further contend that the Eighth and Fourteenth Amendments “forbid exposing []Plaintiffs to a severe risk of death, pain, or permanent severe injury, and at this time, with respect to the Medically-Vulnerable Subclass, no options available to Respondents/Defendants will adequately mitigate that risk other than release from custody.” (Id. at Pg ID 64-65.)
Because Plaintiffs allege a deprivation of their constitutional right to be free from cruel and unusual punishment and the Court finds that Plaintiffs will likely succeed on the merits of this claim, the Court finds that Plaintiffs satisfy the irreparable harm requirement for issuing a preliminary injunction.
C. Whether Defendants or the Public Interest will be Harmed by the Injunction
The remaining factors, “harm to the opposing party and weighing the public interest[,] . . . merge when the Government is the opposing party,” Nken v. Holder, 556 U.S. 418, 435 (2009), because “the government’s interest is the public interest,” Malam, 2020 WL 1672662, at *5 (quoting Pursuing America’s Greatness v. Fed. Election Comm’n, 831 F.3d 500, 512 (D.C. Cir. 2016) (citing Nken, 556 U.S. at 435)). This factor weighs in Plaintiffs’ favor for two reasons.
First, as discussed above, Plaintiffs face irreparable injury to their constitutional rights absent an injunction and “it is always in the public interest to prevent the violation of a party’s constitutional rights.” G & V Lounge Inc. v. Mich. Liquor Control Comm., 23 F.3d 1071, 1079 (6th Cir. 1994).
62

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3049 Page 63 of 71
Second, the public has a significant interest in avoiding serious illness or death. Indeed, efforts to curb the spread of COVID-19—including implementing procedures to curb the spread of COVID-19 within the Jail, as well as placing on home confinement populations who cannot be protected from the virus while housed in the Jail—helps “flatten the curve,” limit potential strain on healthcare systems, and reduce the likelihood of death and long-term health complications. See Perez-Perez v. Adducci, No. 20-10833, 2020 WL 2305276, at *9 (E.D. Mich. May 9, 2020) (“Society benefits by stemming the proliferation of COVID-19, thereby ‘flattening the curve,’ preventing strain on medical centers and hospitals, and ultimately reducing death or long-term injury from COVID-19-related lung damage.”); Cristian A.R. v. Decker, No. CV 20-3600, 2020 WL 2092616, at *13 (D.N.J. Apr. 12, 2020) (“[T]he public interest also supports the release of Petitioners before they contract COVID-19 to preserve critical medical resources and prevent further stress on . . . overburdened healthcare systems.”); Perez v. Wolf, No. 5:19-CV-05191, 2020 WL 1865303, at *13 (N.D. Cal. Apr. 14, 2020) (holding that the petitioner shall be released because “the public interest in promoting public health is served by efforts to contain the further spread of COVID-19, particularly in detention centers, which are typically staffed by persons who reside in the local communities”); see also Neinast v. Bd. Of Trustees, 346
63

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3050 Page 64 of 71
F.3d 585, 592 (6th Cir. 2003) (recognizing public health and safety as legitimate government interests).
Regarding the injunctive relief as to the Jail Class, Defendants contend that they have an interest in operating the correctional facility as they deem fit, noting that “[a]ny interference by the federal courts in the administration of . . . prison matters is necessarily disruptive.” (ECF No. 30 at Pg ID 830.) But this argument ignores the evidence Plaintiffs have presented suggesting that Defendants’ purported sanitation and quarantining procedures are not actually being carried out within the Jail.
As Defendants acknowledge in their brief, federal courts—“as the ultimate guardian of constitutional rights”— “possess the authority to implement whatever remedy is necessary to rectify constitutionally infirm practices, policies or conduct,” such as failing to implement policies that will effectively protect inmates from a potentially lethal virus. (See ECF No. 30 at Pg ID 831 (quoting Kendrick v. Bland, 740 F2d 432, 438 (6th Cir. 1984)). The Court acknowledges that running a Jail is challenging even in the best of times. The Court further acknowledges the unprecedented challenges Defendants face as they try to address the impact of COVID-19 on Jail operations. However, Defendants’ interest in operating a correctional facility as they see fit must be balanced with the interest of the Jail Class in avoiding serious illness and/or death. Because it is likely that
64

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3051 Page 65 of 71
constitutional violations are occurring in this case, the Court will fashion the relief in the least intrusive way to remedy the constitutional violation. Kendrick, 740 F.2d at 437 (quoting Newman v. State of Alabama, 683 F.2d 1312, 1319 (11th Cir. 1982) (“[T]he federal equity court in fashioning a remedy must afford relief which is ‘no broader than necessary to remedy the constitutional violation.’”).
Moreover, while Defendants may be concerned that releasing members of the Medically-Vulnerable Subclass may pose a danger to the community, this concern can be addressed by requiring individualized consideration of the subclass member’s suitability for release, taking into account criminal history and other relevant factors. The Supreme Court has held that “a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847 (emphasis added). Whether the release of a Medically-Vulnerable Subclass member is a “reasonable measure” will turn on a variety of factors, such as the severity of the risk faced by the inmate from COVID-19 in light of his or her age and medical history, the danger the inmate presents to the residents of the home environment under consideration, and the danger to the public at large. Such determinations may be difficult, but in the midst of the COVID-19 pandemic, both
65

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3052 Page 66 of 71
justice and the need to honor the human dignity in every person demand that they must be made and made at an accelerated pace. VII. Prison Release Orders
While the Court has concluded that § 2241 is a proper avenue to pursue Plaintiffs’ request for release of the Medically-Vulnerable Subclass, it acknowledges that the Sixth Circuit might conclude that theirs is instead a “conditions of confinement” rather than “fact of confinement” claim given that the Supreme Court has not definitively ruled on the availability of § 1983 to seek release for unconstitutional conditions of confinement. Thus, the Court will touch briefly on Defendants’ argument that the PLRA’s requirements, 18 U.S.C. § 3626(a)(3), apply to such a claim.46
Pursuant to the PLRA, a three-judge panel is required to enter a prison release order47 and release is permitted only if “clear and convincing evidence” shows that: “(i) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right.” Id.
46 These requirements include a prior order for intrusive relief, reasonable time for the defendant to comply, and a three-judge court to decide whether release is appropriate. 18 U.S.C. § 3626(a)(3). 47 A “prison release order” is “any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison.” 18 U.S.C. § 3626(g)(4).
66

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3053 Page 67 of 71
§ 3626(a)(3)(B), (E). The Court concludes that these requirements do not apply to an order releasing medically-vulnerable inmates in this case.
This Court cannot construe § 3626 as applying to an order to transfer inmates out of a prison to correct the violation of a constitutional right where overcrowding is not the primary cause of the violation. Other district judges agree. See Plata v. Brown, 427 F. Supp. 3d 1211, 2013 WL 12436093, *9-10 (N.D. Cal. 2013); Reaves v. Dep’t of Corr., 404 F. Supp. 3d 520, 522-24 (D. Mass. 2019); see also Mays, 2020 WL 1987007, at *31 (indicating that the “conclusion seems correct” in Plata and Reaves, but finding that overcrowding was the primary basis for the plaintiffs’ request); Money v. Pritzker, -- F. Supp. 3d --, 2020 WL 1820660, at *12 n.11 (N.D. Ill. Apr. 10, 2020) (suggesting that single-judge courts can order prisoner transfers for reasons other than crowding). To interpret § 3626 as Defendants urge would mean that a court could never order an inmate released unless a three-judge panel found by clear and convincing evidence that overcrowding was the cause of the violation. In other words, if any other reason caused the violation of an inmate’s constitutional rights, judges could not provide relief by releasing the inmate. There is no evidence to support that this was Congress’ intent when crafting this section of the statute.
Instead, as the Ninth Circuit Court of Appeals has observed, “[s]ponsors of the PLRA were especially concerned with courts setting ‘population caps’ and
67

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3054 Page 68 of 71
ordering the release of inmates as a sanction for prison administrators’ failure to comply with the terms of consent decrees designed to eliminate overcrowding.” Gilmore v. California, 220 F.3d 987, 998 n.14 (9th Cir. 2000). Moreover, as the district court observed in Plata 2013 WL 12436093: “Although ‘Congress is free to alter the standard that determines the scope of prospective relief for unconstitutional prison conditions,’ it can do so only ‘so long as the restrictions on the remedy do not prevent vindication of the right.’” Id. at *10. As Judge Henderson described in Plata, there are obvious scenarios, unrelated to crowding, where the transfer of prisoners would be necessary to protect their constitutional rights, such as “a prison … so dilapidated that no one could predict when the walls would crumble down, thus putting inmates’ lives at serious risk, but that Defendants refused to transfer those inmates despite being aware of that risk, in clear violation of the Eighth Amendment.” Id. And if a prison were in the path of rising flood waters, a tornado, or a highly contagious and deadly viral pandemic, which threatened cruel and unusual punishment to inmates if not released, and their jailors were not responding adequately to protect them from serious harm, surely a single judge should possess the authority to quickly remedy the situation rather than proceeding through the procedural requirements of § 3626(a)(3).
Defendants assume that overcrowding is the primary cause of Plaintiffs’ alleged constitutional violation, without explaining why. The district courts in
68

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3055 Page 69 of 71
Mays and Money reached this conclusion, reasoning that “[s]ocial distancing”— which is regarded as one of the best defenses to the spread of COVID-19—“is essentially the converse of overcrowding[.]” Mays, 2020 WL 1987007, at *31; Money, 2020 WL 1820660, at *13. This Court respectfully disagrees.
The PLRA does not define “overcrowding.” As one district court described, “‘crowding’ refers to the presence in a facility or prison system of a prisoner population exceeding that facility or system’s capacity.” Coleman v. Schwarzenegger, 922 F. Supp. 2d 882, 920 (N.D. Cal. 2009) (citing cases where overcrowding was found because a jail’s population exceeded its design capacity); cf. Random House Webster’s Unabridged Dictionary 482 (2d ed. 1998) (defining “crowded” as “filled to excess”). An overcrowding case, as another district judge described, is one where the “plaintiffs are asserting that the penitentiary houses more inmates then it can adequately manage or provide human services for.” Jensen v. Gunter, 807 F. Supp. 1463, 1469 (D. Neb. 1992). The Supreme Court’s decision in Brown, reflects that these understandings are correct, as the Court there focused on the design capacity of California’s prisons in comparison to the actual inmate population. Id. at 502-06.
The inability to socially distance in the jail setting has nothing to do with the capacity of the facility. In fact in this case, the Jail has never exceeded its capacity during the relevant period. During the evidentiary hearings, Defendants repeatedly
69

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3056 Page 70 of 71
compared the Jail’s overall capacity and the capacity of its cells to the number of inmates actually being housed. Currently, as again the Jail repeatedly has noted, its population of 664 inmates as of May 1, 2020, represents less than forty-percent (40%) of its total capacity. There has been no suggestion that the size of the Jail’s population is the cause of its inability to implement social distancing measures.
For these reasons, the Court concludes that any decision in this case to release particular inmates in response to COVID-19 under § 1983 would not be a prison release order to which the requirements of § 3626 apply. VII. Conclusion
As Justice Sotomayor recently stated in relation to COVID-19 and prisons: It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country’s facilities serve as models rather than cautionary tales.
Valentine, 2020 WL 2497541, at 3. Yet, where the country’s detention facilities fail to fulfill their obligations, “courts have a responsibility to remedy the resulting [constitutional] violation.” Brown, 563 U.S. at 511 (citing Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978)). Undoubtedly courts must consider the State’s interest in punishment and prison officials’ authority to run their prisons as they see most fit to maintain security and order, but “[c]ourts … must not shrink from their
70

Case 2:20-cv-10949-LVP-MJH ECF No. 93 filed 05/21/20 PageID.3057 Page 71 of 71
obligation to enforce the constitutional rights of all persons, including prisoners.” Id. (internal quotation marks and citation omitted).
In this case, Plaintiffs have shown a substantial likelihood that Defendants are being deliberately indifferent to the risk that COVID-19 poses to Jail inmates, particularly medically-vulnerable inmates. Without injunctive relief, Plaintiffs will suffer immediate irreparable injury for which there is no adequate remedy at law, in that they will face a high risk of serious illness or death from exposure to coronavirus. The issuance of a preliminary injunction will not inflict greater or undue injury upon those restrained or third parties and the issuance of a preliminary injunction order will serve the public interest.
The Court finds that the relief it is ordering is narrowly drawn, is the least intrusive means, and extends no further than necessary to correct the harm that the Court finds requires preliminary relief. The Court has given substantial weight to any adverse impact on public safety and the operation of the criminal justice system caused by the preliminary relief and shall respect the principles of comity in tailoring this preliminary relief. See 18 U.S.C. § 3626(a)(2).
An Order will issue. s/ Linda V. Parker LINDA V. PARKER U.S. DISTRICT JUDGE
Dated: May 21, 2020
71

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 94 filed 05/21/20 PageID.3058 Page 1 of 7

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON, RICHARD BRIGGS, RAJ LEE, MICHAEL CAMERON, and MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,

Plaintiffs, v.

Civil Case No. 20-10949 Honorable Linda V. Parker

MICHAEL BOUCHARD, CURTIS D. CHILDS, and OAKLAND COUNTY,

Defendants. ____________________________________/

ORDER

This matter is before the Court on the following motions: (i) Plaintiffs’

Motion for Preliminary Injunction (ECF No. 5); (ii) Plaintiffs’ Motion to Certify

Class (ECF No. 6); (iii) Defendants’ Motion to Dismiss (ECF No. 30); (iv)

Defendants’ Motion for Leave to File a Sur-reply (ECF No. 91); and (v) Plaintiffs’

Motion to Strike (ECF No. 92). The Court held a hearing with respect to the first

three motions via videoconference on May 4, 6 and 7, 2020, and entered an

Opinion with respect to all of the motions on this date. Pursuant to that Opinion,

IT IS ORDERED that Defendants’ Motion for Leave to File a Sur-Reply

(ECF No. 91) is DENIED and Plaintiffs’ Motion to Strike (ECF No. 92) is

DENIED AS MOOT; 1

Case 2:20-cv-10949-LVP-MJH ECF No. 94 filed 05/21/20 PageID.3059 Page 2 of 7
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Class
Certification (ECF No. 6) is GRANTED and the Court conditionally certifies the
following Class and Subclasses:
 “Jail Class”: defined as all current and future Jail detainees during the course of the COVID-19 pandemic.
 “Pre-trial Subclass”: defined as all current and future persons detained at the Oakland County Jail during the course of the COVID-19 pandemic who have not yet been convicted of the offense for which they are currently held in the Jail.
 “Post-Conviction Subclass”: defined as all current and future persons detained at the Oakland County Jail during the course of the COVID-19 pandemic who have been sentenced to serve time in the Jail or who are otherwise in the Jail as the result of an offense for which they have already been convicted.
 “Medically-Vulnerable Subclass”: defined as all members of the Jail class who also are over the age of sixty (60) or who, regardless of age, experience any of the following underlying medical conditions: (i) chronic lung disease including chronic obstructive pulmonary disease (e.g., bronchitis or emphysema); (ii) moderate to severe asthma; (iii) serious heart conditions; (iv) immunocompromising conditions including cancer treatment, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications; (v) severe obesity (body mass index [BMI] of 40 or higher); (vi) diabetes; (vii) chronic kidney or liver disease; (viii) metabolic disorders; or (ix) current or recent (last two weeks) pregnancy.
2

Case 2:20-cv-10949-LVP-MJH ECF No. 94 filed 05/21/20 PageID.3060 Page 3 of 7
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss (ECF
No. 30) is GRANTED IN PART AND DENIED IN PART in that it is denied in
all respects, except Defendants Bouchard and Childs are DISMISSED AS
PARTIES;
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Preliminary
Injunction (ECF No. 5) is GRANTED and Defendants shall:
1. Provide each incarcerated person, free of charge, on a biweekly basis, two bars of individual hand soap and a hand towel to allow regular hand washing and drying. Provide unrestricted access to additional hand soap upon an inmate’s request.
2. Provide each cell and each dormitory-style housing unit, at no cost, a supply of disinfectant hand wipes or disinfectant products effective against the COVID-19 virus for daily cleanings. Any disinfectant products shall be provided at the manufacturer’s required concentration level and in sufficient quantities for inmates to clean and disinfect the floor and all surfaces of their housing unit.
3. Provide daily access to cleaning supplies at no cost for inmates to clean their cells, including showers, toilets, telephones, and sinks. Supplies shall be disinfected before being shared between housing cells.
4. Require cleaning of any surface or area shared by four (4) or more inmates, for example tabletops, telephones, door handles, television controls, equipment, and restroom fixtures. Surfaces and areas shall be cleaned every hour from 7 a.m. to 10 p.m. with bleach-based cleaning agents.
5. Establish a protocol for monitoring and supervising the regular sanitization of housing units, common areas, and surfaces. Provide guidance to correctional staff to provide them with the 3

Case 2:20-cv-10949-LVP-MJH ECF No. 94 filed 05/21/20 PageID.3061 Page 4 of 7
knowledge needed to oversee and assure that cleaning is adequate and effective. Within five (5) business days of this Order, Defendants shall submit a certified report to the Court identifying the procedures implemented to carry out these directives.
6. Provide access to clean showers and clean laundry, including clean personal towels on a regular basis, but at a minimum on a bi-weekly basis.
7. Provide masks for all inmates and staff members. If cotton masks are provided, such masks must be laundered regularly. Users must be instructed on how to use the mask and the reasons for its use.
8. Require all Jail staff to wear personal protective equipment, including masks and gloves, when interacting with any person, distributing items to prisoners (e.g., mail and hygiene supplies), or when touching surfaces in cells or common areas.
9. Ensure, to the fullest extent possible, that all Jail staff wash their hands with soap and water or use hand sanitizer containing at least 60% alcohol both before and after touching any person or any surface in cells or common areas. Consider allowing staff to carry individual sized bottles of the referenced hand sanitizer while on duty.
10.Maintain a protocol through which an incarcerated person may self-report symptoms of COVID-19 infection and to evaluate those symptoms, including temperature monitoring.
11.Within three (3) business days, provide the Court and Plaintiffs with a detailed plan to continue testing all inmates for COVID19, prioritizing members of the Medically-Vulnerable Subclass, as well as a plan to test all individuals who (i) have access to the housing units or (ii) interact with inmates or with individuals who have access to the housing units.
12.Conduct immediate testing for anyone displaying known symptoms of COVID-19 and submit a weekly list to the Court
4

Case 2:20-cv-10949-LVP-MJH ECF No. 94 filed 05/21/20 PageID.3062 Page 5 of 7
and Plaintiffs’ counsel indicating (i) the number of tests performed that week and (ii) whether any inmates or Jail staff have tested positive for coronavirus.
13.Provide adequate spacing of six feet or more between people incarcerated, to the maximum extent possible, so that social distancing can be accomplished.
14.Ensure that individuals identified as having COVID-19, with symptoms of COVID-19, or having been exposed to COVID-19 receive adequate medical care and are properly quarantined in a non-punitive setting, with continued access to showers, mental health services, reading materials, phone and video calling with loved ones, communications with counsel, and personal property (to the extent reasonable and necessary to the inmate’s physical and mental well-being). Such individuals shall remain in quarantine and wear face masks and gloves when interacting with other individuals until they are no longer at risk of infecting other people. Facemasks must be replaced at medically appropriate intervals.
15.Respond to all COVID-19 related emergencies (as defined by the medical community) within an hour.
16.Post signage and information in common areas that provide: (i) general updates and information about the COVID-19 pandemic; (ii) information on how inmates can protect themselves from contracting COVID-19; and (iii) instructions on how to properly wash hands. Among other locations, all signage must be posted in every housing area and above every sink. Require staff to provide this information orally to lowliteracy and non-English speaking people.
17.Train all staff regarding measures to identify inmates with COVID-19, measures to reduce transmission, and the Jail’s policies and procedures during this crisis (including those measures contained in this Order).
5

Case 2:20-cv-10949-LVP-MJH ECF No. 94 filed 05/21/20 PageID.3063 Page 6 of 7
18.Suspend co-pays for medical treatment for the duration of the pandemic and encourage all inmates to seek treatment if they are feeling ill.
19.Waive all charges for medical grievances during the pandemic until further order of the Court.
20.Within five (5) business days of this Order, establish and put into effect a policy suspending, to the extent possible, the use of multi-person cells (i.e., with more than two individuals), except where: (i) the person is currently under quarantine, or (ii) a person for whom a medical or mental health professional has documented that particular housing is needed. All housing units utilized shall be configured to permit social distancing, to the maximum extent possible. If dormitory-style housing must be utilized, those areas shall be reconfigured to allow six-feet between inmate beds to the maximum extent possible. Defendants shall submit a report to the Court and Plaintiffs’ counsel within seven (7) business days detailing (i) the policy put into effect, (ii) the housing cells occupied, and (iii) the number of inmates in each cell, similar to the Housing Occupancy List introduced at the evidentiary hearing. (ECF No. 68.) Defendants shall submit updated reports as to (i) and (ii) on a weekly basis.
21.Ensure that Plaintiffs’ counsel have the ability to promptly communicate with detainees.
22.Within three (3) business days, provide the Court and Plaintiffs’ counsel with a list of the members of the Medically-Vulnerable Subclass, which includes inmate identification numbers, ages, any health vulnerabilities, as well as records detailing the instant charges or convictions and any criminal history of the Subclass member. The purpose of this order is to enable the Court to implement a system for considering the release on bond or other alternatives to detention in the Jail for each subclass member. After reviewing the list, the Court will issue a schedule for Defendants to submit the following additional information for each Subclass member: (i) their position on whether the individual should be released on bond; (ii) the
6

Case 2:20-cv-10949-LVP-MJH ECF No. 94 filed 05/21/20 PageID.3064 Page 7 of 7
reasons why they maintain the individual should not be released; and (iii) what conditions should be put into place if bond is granted. In extraordinary cases like this, federal judges have the authority to release detainees on bail while their habeas petitions are pending.1 Defendants have not sought a bond and the Court finds and holds that no security need be posted. See Fed. R. Civ. P. 65(c); Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir. 1995) (“[T]he rule in [the Sixth Circuit] has long been that the district court possesses discretion over whether to require the posting of security.”). The injunctive provisions set forth in this Order shall expire forty-five (45) business days from the date of this Order. At that time, the Court will review the record to determine whether it is necessary to extend the Order. IT IS SO ORDERED.
s/ Linda V. Parker LINDA V. PARKER U.S. DISTRICT JUDGE Dated: May 21, 2020
1 See, e.g., Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001); Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990); Savino v. Souza, No. 20-10617, 2020 WL 1703844, at *8-9 (D. Mass. Apr. 8, 2020).
7

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 90 filed 05/18/20 PageID.2939 Page 1 of 10

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,
v. MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,
Defendants.

Case No. 20-cv-10949 Hon. Linda V. Parker

PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 2:20-cv-10949-LVP-MJH ECF No. 90 filed 05/18/20 PageID.2940 Page 2 of 10
ARGUMENT Defendants, faced with a deadly pandemic that literally spreads with viral efficiency, oppose class certification on the grounds that people whose lives are at risk must exhaust the Jail’s lengthy grievance procedure before securing their constitutional rights. But that argument is waived, and the procedure is unavailable both because it operates too slowly to provide relief and because the Jail has systematically denied inmates access to it. The law does not require exhaustion of unavailable administrative remedies, and the issues regarding their availability here are capable of class-wide resolution and do not stand in the way of class certification. I. Defendants’ Exhaustion Issues are Waived and Meritless in Any Event. Defendants’ primary argument against class certification is that the named plaintiffs have not exhausted the Jail’s administrative remedies. Resp., ECF 82, at 3–6. But Defendants did not raise this defense 1 in response to the motion for preliminary injunction, see generally ECF 30, so they have forfeited any argument that non-exhaustion is a barrier to this Court ordering preliminary injunctive relief. And it is well established that the Court can issue class-wide preliminary injunctive relief without deciding the motion for class certification. See, e.g., Martinez-Brooks v. Easter, 2020 WL 2405350, at *29 (D. Conn. May 12, 2020) (providing relief to
1 Failure to exhaust is an affirmative defense that is defendants’ burden to prove, and therefore “inmates are not required to specially plead or demonstrate exhaustion in their complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007).

Case 2:20-cv-10949-LVP-MJH ECF No. 90 filed 05/18/20 PageID.2941 Page 3 of 10
putative medically vulnerable class prior to certification); Rodriguez v. Providence Cmty. Corrs., Inc., 155 F. Supp. 3d 758, 767 (M.D. Tenn. 2015); Newberg on Class Actions § 4:30 & n.8.50 (5th ed.) (collecting cases). Therefore, the exhaustion issue, and class certification overall, need not be addressed at this time.
However, when the Court does decide class certification, “exhaustion should be excused because administrative remedies were unavailable . . . [which] is a question common to all members of the class.” Butler v. Suffolk County, 289 F.R.D. 80, 99 (E.D.N.Y. 2013) (certifying a class represented by class members who did not exhaust); see A.T. ex rel. Tillman v. Harder, 298 F. Supp. 3d 391, 409 (N.D.N.Y. 2018) (same). Thus, Defendants’ exhaustion arguments, whether considered now or later, are not “bases to defeat class certification.” A.T., 298 F. Supp. 3d at 409.
Furthermore, none of Plaintiffs’ claims are exhaustion-barred. The PLRA requires only that prisoners exhaust “such administrative remedies as are available.” 42 U.S.C. § 1997e(a); Valentine v. Collier, 590 U.S. ___, 2020 WL 2497541, at *3 (May 14, 2020) (Sotomayor, J., statement respecting application to vacate stay). “[T]he ordinary meaning of the word ‘available’ is ‘capable of use for the accomplishment of a purpose.’” Id. (quoting Ross v. Blake, 136 S. Ct. 1850, 1858 (2016)). “Thus, when a grievance procedure is a ‘dead end’—when ‘the facts on the ground’ indicate that the grievance procedure provides no possibility of relief—the procedures may well be ‘unavailable.’” Id. (quoting Ross, 136 S. Ct. at 1859).
2

Case 2:20-cv-10949-LVP-MJH ECF No. 90 filed 05/18/20 PageID.2942 Page 4 of 10
There are no administrative remedies “available” here for two reasons. First, the Jail’s grievance procedure is too slow to respond to this pandemic. In the “unprecedented circumstances” posed by this “rapidly spreading pandemic,” Justice Sotomayor recently explained, “where an inmate faces an imminent risk of harm that the grievance process cannot or does not answer, the PLRA’s textual exception could open the courthouse doors where they would otherwise stay closed.” Id. This is an application of the principle that “[i]f a prisoner has been placed in imminent danger of serious physical injury . . . administrative remedies that offer no possible relief in time to prevent the imminent danger from becoming an actual harm can’t be thought available.” Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1173 (7th Cir. 2010).
That is the case here. The Jail’s grievance procedure gives Defendants an indefinite amount of time to process grievances, and more than a month to investigate and respond.2 An inmate must first submit a grievance to a supervisor, who may hold on to it for as long as they please before passing it to a Grievance Coordinator, who similarly has no timeline for action. The Coordinator then passes the grievance to a sergeant, who may take 30 days to investigate. There are additional 5- and 7-day periods for appeals. All told, grievances can be addressed in some period of time between 42 days and never. “Because COVID-19 spreads ‘easily and
2 Defendants’ misleadingly provide a partial description of their procedure. The full procedure, previously obtained via FOIA, is enclosed as Exhibit A.
3

Case 2:20-cv-10949-LVP-MJH ECF No. 90 filed 05/18/20 PageID.2943 Page 5 of 10
sustainably,’ Plaintiffs risk contracting the disease while . . . attempting to exhaust the [Jail’s] administrative grievance procedure . . . .” McPherson v. Lamont, __ F. Supp. 3d __, 2020 WL 2198279, at *10 (D. Conn. May 6, 2020). Thus, the procedure is, “‘practically speaking, incapable of use’ for resolving COVID-19 grievances.” Id. (quoting Ross, 136 S. Ct. at 1859).
Second, the Jail is not actually following its grievance procedure and is instead thwarting COVID-19 grievances. A grievance procedure is unavailable if “prison administrators thwart inmates from taking advantage of [it] through machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1860; Does 8–10 v. Snyder, 945 F.3d 951, 965–66 (6th Cir. 2019). The record here establishes that people in the Jail routinely experience intimidation, retaliation, and outright denials when they try to protect themselves or raise grievances about COVID-19 conditions. Two named Plaintiffs who raised concerns, through proper channels, about performing work that exposed them to coronavirus were shipped off to the tanks—the most crowded and dirty cells in the Jail—and into cells directly adjoining a cell of quarantined people. ECF 5-3 (“J. Cameron Decl.”) ¶¶ 8–9; ECF 5-5 (“Lee Decl.”) ¶¶ 9–17; see also ECF 55 ¶ 6. When Lee filed a grievance over being threatened, the grievance was given to the supervisor who had threatened him, who then transferred Lee to the tank. Lee Decl. ¶¶ 13–17. Briggs was similarly threatened with transfer to the tank for requesting a grievance to protest his poor medical care. ECF 5-4 (“Briggs Decl.”) ¶
4

Case 2:20-cv-10949-LVP-MJH ECF No. 90 filed 05/18/20 PageID.2944 Page 6 of 10
8; see also ECF 5-7 ¶ 22 (guards refused to provide grievance forms to non-plaintiff declarant Kucharski after learning he intended to grieve COVID-related conditions). These widespread threats and abuses are well known to other detainees. ECF 5-6 ¶ 15. Thus, “improper actions of prison officials render the administrative remedies functionally unavailable” to Plaintiffs and the class more generally. Does 8–10, 945 F.3d at 966 (citation omitted). The Jail—which, again, bears the burden of proof on exhaustion, see Jones, 549 U.S. at 216, has not rebutted this showing.3 II. Defendants’ Other Arguments Against Class Certification Also Fail.
Defendants’ remaining arguments fare no better. Their arguments about numerosity and adequacy are just restatements of their exhaustion argument and fail for the same reasons. See Resp. at 7, 11. They also rely on basic misrepresentations, asserting that “none of the class representatives are pre-trial detainees.” Id. at 11. In fact, both Saunders and Briggs are. Briggs Decl. ¶ 1; ECF 5-8 ¶ 1.
Defendants’ arguments regarding commonality, typicality, and Rule 23(b) also fail. They argue that class treatment is inappropriate because there are certain differences between class members. Resp. at 8–9, 14. But Defendants provide no authority for the proposition that any of these differences are relevant to the common factual or legal questions about the constitutionality of their confinement. Instead,
3 For similar reasons, state-remedy exhaustion is no barrier to the class’s habeas claims. Plaintiffs have already explained why exhaustion is both futile and excusable, ECF 33 at 25–30; ECF 86 at 4–5, and those arguments apply class-wide.
5

Case 2:20-cv-10949-LVP-MJH ECF No. 90 filed 05/18/20 PageID.2945 Page 7 of 10
Defendants rely on Money v. Pritzker. That case was wrongly decided for the other reasons stated herein, but is also distinguishable. In Money, the plaintiff class stretched across the entire Illinois state prison system, raising numerous complex individualized questions. 2020 WL 1820660, at *13–*15. The plaintiffs here, in contrast, have provided a thorough list of common questions of law and fact, all pertaining to one facility, that require no individualized inquiry. Class Cert. Mot., ECF 6, at 12–14. Defendants simply ignore these questions, each of which “will resolve an issue that is central to the validity of” claims in this litigation and “drive the resolution of the litigation.” Wal-Mart v. Dukes, 564 U.S. 338, 349–50 (2011).
Even if some of the factual distinctions Defendants raise are relevant, variation among the class does not defeat the commonality. “Commonality simply means that ‘there are questions of law or fact common to the class,’” and “[n]ot all questions of law and fact raised in the complaint need be common.” In re FCA US LLC Monostable Elec. Gearshift Litig., 334 F.R.D. 96, 105 (E.D. Mich. 2019) (citation omitted). The standard “is not demanding and does not require identicality.” Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 884 (6th Cir. 1997).
Similarly, Defendants’ arguments regarding Rule 23(b) are unpersuasive. Plaintiffs are not seeking to certify the class under 23(b)(3), so they need not meet the predominance and superiority requirements that Defendants spend several pages discussing. See Fed. R. Civ. P. 23(b); Resp. at 15–18. As for the requirements of
6

Case 2:20-cv-10949-LVP-MJH ECF No. 90 filed 05/18/20 PageID.2946 Page 8 of 10
23(b)(2), it is clearly the case that Defendants have “acted or refused to act on grounds that apply generally to the class,” making injunctive and declaratory relief appropriate for the class as a whole. Fed. R. Civ. P. 23(b)(2). Members of the proposed class face a common set of conditions in the Jail as a result of Defendants’ policies and practices. See Class Cert. Mot. at 10–14. Certification under 23(b)(2) is often proper in prisoners’ rights cases, and this is no exception. Id. at 19–21.
Finally, contrary to Defendants’ arguments, the medically vulnerable subclass is defined by “objective criteria.” Resp. at 11–13. It is defined as those who have a set of medical conditions based largely on the CDC’s list of groups at high risk from COVID-19. ECF No. 1-6 at 2–3. Whether an inmate has a disease on the list is the kind of objective determination that courts make routinely, and is an appropriate basis for class certification. See, e.g., Wilson v. Williams, 2020 WL 1940882, at *6 (N.D. Ohio Apr. 22, 2020). This is no less true just because some terms encompass multiple diseases, such as “inherited metabolic disorders” or “chronic conditions associated with impaired lung function.” The need to determine if some individuals belong in the class does not defeat certification. See Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 539 (6th Cir. 2012) (affirming certification although “additional, even substantial, review of files” might be needed to establish class membership).
CONCLUSION The plaintiffs’ motion for class certification should be granted.
7

Case 2:20-cv-10949-LVP-MJH ECF No. 90 filed 05/18/20 PageID.2947 Page 9 of 10

Respectfully submitted,

/s/ Krithika Santhanam Krithika Santhanam (DC Bar No. 1632807) Thomas B. Harvey (MBE #61734MO) Advancement Project National Office 1220 L Street, N.W., Suite 850 Washington, DC 20005 Tel: (202) 728-9557 Ksanthanam@advancementproject.org Tharvey@advancementproject.org
/s/ Philip Mayor Philip Mayor (P81691) Daniel S. Korobkin (P72842) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6803 pmayor@aclumich.org dkorobkin@aclumich.org

/s/ Cary S. McGehee Cary S. McGehee (P42318) Kevin M. Carlson (P67704) Pitt, McGehee, Palmer, Bonanni & Rivers, PC 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 cmcgehee@pittlawpc.com kcarlson@pittlawpc.com
/s/ Allison L. Kriger________ Allison L. Kriger (P76364) LaRene & Kriger, PLC 645 Griswold, Suite 1717 Detroit, MI 48226 (313) 967-0100 Allison.kriger@gmail.com

/s/ Alexandria Twinem Alexandria Twinem (D.C. Bar No. 1644851) Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Tel: 202-894-6126 Fax: 202-609-8030 alexandria@civilrightscorps.org

Attorneys for Plaintiffs/Petitioners

Dated: May 18, 2020

8

Case 2:20-cv-10949-LVP-MJH ECF No. 90 filed 05/18/20 PageID.2948 Page 10 of 10
CERTIFICATE OF SERVICE The undersigned certifies that the foregoing instrument was filed with the U.S. District Court through the ECF filing system and that all parties to the above cause was served via the ECF filing system on May 18, 2020.
Signature: /s/ Carrie Bechill 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 (248) 398-9800 cbechill@pittlawpc.com
9

Case 2:20-cv-10949-LVP-MJH ECF No. 90-1 filed 05/18/20 PageID.2949 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,
v. MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,
Defendants.

Case No. 20-cv-10949 Hon. Linda V. Parker

INDEX OF EXHIBITS Exhibit A – Oakland County Jail Grievance Policy

Case 2:20-cv-10949-LVP-MJH ECF No. 90-2 filed 05/18/20 PageID.2950 Page 1 of 5
Exhibit A

Case 2:20-cv-10949-LVP-MJH ECF No. 90-2 filed 05/18/20 PageID.2951 Page 2 of 5

Case 2:20-cv-10949-LVP-MJH ECF No. 90-2 filed 05/18/20 PageID.2952 Page 3 of 5

Case 2:20-cv-10949-LVP-MJH ECF No. 90-2 filed 05/18/20 PageID.2953 Page 4 of 5

Case 2:20-cv-10949-LVP-MJH ECF No. 90-2 filed 05/18/20 PageID.2954 Page 5 of 5

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 82 filed 05/12/20 PageID.2849 Page 1 of 18

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DISTRICT

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,

Case 2:20-cv-10949-LVP-MJH

v.

MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,

Defendants. __________________________________________________________________

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

The premise of Plaintiffs’ Motion is admittedly Plaintiffs’ allegation that

“Defendants disregard of the known risks of illness and death exposes jail detainees

to a highly-fatal infectious disease in violation of their rights under the Eighth and

Fourteenth Amendments.” (Plaintiff’s Motion, p. 3 of 32). The inflammatory

allegations repeatedly made by Plaintiffs are interesting considering their own

representative, Mr. Jamaal Cameron, admitted under oath that he does not wear the

mask supplied by the jail while in his cell where he claims he cannot social distance.

Case 2:20-cv-10949-LVP-MJH ECF No. 82 filed 05/12/20 PageID.2850 Page 2 of 18
(Exhibit A, Preliminary Injunction Hearing Transcript, pp. 64). Plaintiffs’ inflammatory allegations are similarly not borne out by the statistics regarding inmates who have contracted COVID-19 while incarcerated at OCJ. Despite Plaintiffs’ allegations to the contrary, the OCJ has done an exemplary job preventing the spread of COVID-19 throughout its facility with is borne out through the lack of inmates who have tested positive. (See Exhibit A, p. 35). As such, Plaintiffs’ Motion is based on a false premise and should be denied.
The same arguments set forth in Plaintiffs’ Motion for Class Certification were previously asserted by prisoner plaintiffs in Money v Pritzker, - - - F Supp 3d - - 2020 WL 1820660 (ND Ill April 10, 2020). The Money court recently denied inmate plaintiffs’ motion for class certification in the midst of the COVID-19 pandemic. There is no basis this Court should hold differently in this case.
Plaintiff has the burden of showing that class certification is proper. Wal-Mart Stores, Inc v Dukes, 564 US 338; 131 S Ct 338 (2011). In order to satisfy their showing, Plaintiffs must establish their proposed class meets each of the requirements of FRCP 23(a) and one of the types set forth in FRCP 23(b). FRCP 23.
A plaintiff’s proposed class must first satisfy four requirements: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative
2

Case 2:20-cv-10949-LVP-MJH ECF No. 82 filed 05/12/20 PageID.2851 Page 3 of 18
parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. FRCP 23. “Actual, not presumed conformance with Rule 23(a) remains..indispensable, and must be checked through rigorous analysis.” Gooch v Life Investors Ins Co of America, 672 F3d 402, 417 (6th Cir.2012)(citations and quotations omitted). Additionally, “a limited factual inquiry assuming plaintiff’s allegations to be true does not constitute the required rigorous analysis we have repeatedly emphasized.” Id (citations and quotations omitted; emphasis supplied). “Going beyond the pleadings is necessary because a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.” See APB Assoc Inc v Bronco’s Saloon, Inc, 297 FRD 302 (E.D. Mich April 26, 2013) (citing Wal-Mart Stores, 131 S Ct at 2552).
A. Class Certification is Improper Because Plaintiffs Cannot Show They Have Exhausted Administrative Remedies
Plaintiffs’ have filed suit under 42 U.S.C. § 1983. Because Plaintiffs are all inmates in the Oakland County Jail, their claims are governed by the Prison Litigation Reform Act (“PLRA”). Cox v Mayer, 332 F3d 422 (6th Cir.2003). As such, Plaintiffs may not bring an action under § 1983 “until such administrative remedies as are available are exhausted.” 42 U.S.C 1997e(a). Exhaustion provides “an agency an
3

Case 2:20-cv-10949-LVP-MJH ECF No. 82 filed 05/12/20 PageID.2852 Page 4 of 18
opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court.” Woodford v Ngo, 548 US 81, 89 (2006)(Citations and quotations omitted). Proper exhaustion is mandatory. Porter v Nussle, 534 US 516, 524 (2002). “A prison’s grievance process - not the PLRA determines when a prisoner has properly exhausted his or her claim.” Kensu v Mich Dep’t of Corrections, 18-cv-10175, 2020 WL 1698662 *5 (E.D. Mich, April 8, 2020)(citing Jones v Bock, 549 US 199 (2007). Threshold individual standing is a prerequisite for all actions, including class actions. Fallick v Nationwide Mut Ins Co, 162 F3d 410, 423 (6th Cir.1998). Defendants have a due-process right to challenge the proof used to demonstrate class membership. Carrera v Bayer Corp, 727 F3d 300, 307 (3d Cir. 2013).
In Kensu, supra, defendant Michigan Department of Corrections (“MDOC”) opposed plaintiff’s motion for class certification on the basis plaintiff failed to exhaust administrative remedies. This Court denied plaintiff’s motion to certify a class because plaintiff was unable to satisfy Rule 23(a). Id at *16. In its Opinion, this Court recently stated:
The Court is therefore faced with the “unappealing prospect of certifying a class only to have [the only] named Plaintiff [] later dismissed from the suit based on a failure to exhaust [his] claims.” Johannes v Washington, No. 14-cv-11691, 2015 WL 5634446, at *9-10 (E.D. Mich Sept 25, 2015)(declining to certify a class before addressing
4

Case 2:20-cv-10949-LVP-MJH ECF No. 82 filed 05/12/20 PageID.2853 Page 5 of 18
the threshold issue of exhaustion because defendants raised “non-trivial concerns about exhaustion” and “[o]therwise the Court risks certifying a class only to later find that the claims of all six of the class representatives must be dismissed and, therefore, their claims are atypical and they are inadequate class representatives.”; see also Salem v Mich Dep’t of Corr, No. 13-14567, 2016 WL 7409953 (E.D. Mich Dec 22, 2016)(declining to certify a class based on the court’s “legitimate concerns” of the exhaustion issue, which led the court to conclude that plaintiffs did not satisfy the Rule 23(a) requirements). Id. Just as this Court refused to certify a class before addressing the issue of exhaustion in Johannes and Salem, supra, this Court should deny Plaintiffs’ Motion in the instant case on the same basis. Plaintiff Jamaal Cameron admitted during the evidentiary hearing that he has not filed a grievance regarding conditions at the Oakland County Jail related to the COVID-19 pandemic. (Exhibit A, pp. 55-56). Mr. Cameron’s failure serves to defeat his § 1983 claims (and eliminates standing). The grievance procedure at OCJ is set forth in the Inmate Guide provided to all inmates. (Exhibit B, Excerpt of OCJ Inmate Guide). Specifically, the guide provides, that inmates who wish to complain about living conditions, procedures, facilities or treatment in OCJ
may request a grievance or submit a complaint in writing. (Exhibit B). Mr. Cameron’s
claims are deficient in light of his prior signed acknowledgment of the OCJ Inmate Guide wherein he acknowledged he understood the procedure for submitting grievances. (Exhibit C, Executed Acknowledgment). The same analysis applies to the other named Plaintiffs as none of the named Plaintiffs exhausted administrative
5

Case 2:20-cv-10949-LVP-MJH ECF No. 82 filed 05/12/20 PageID.2854 Page 6 of 18
remedies. (Exhibit A, p. 215). Moreover, there can be no dispute that the grievance process was available as OCJ has received eight (8) grievances related to the COVID19 pandemic. (Exhibit A, pp. 215-216). Because the current named Plaintiffs’ § 1983 claims will fail due to their failure to properly exhaust administrative remedies, the proffered class is atypical and class certification is improper. Salem, supra.
The same analysis applies with respect to Plaintiffs’ habeas claims. As discussed extensively in Defendants’ Motion to Dismiss, “[A] federal habeas petitioner must first exhaust the remedies available in state court by fairly presenting his federal claims before the state court; the federal court will not review unexhausted claims.” Irick v Bell, 565 F3d 315, 323 (6th Cir.2009). Plaintiffs’ repeated misrepresentation to the Court that state process is not available to Plaintiffs has been disproven through several orders in Michigan state courts and is further disproven by the Michigan Supreme Court’s recent Order entered May 8, 2020 in People v Chandler, Michigan Supreme Court Case No. 161265. (Exhibit D, Order1). Here, none of Plaintiffs have exhausted their claims in Michigan state courts. As such, their habeas claims are deficient and class certification should be denied.
1
In Chandler, the Michigan Supreme Court granted defendant’s Motion for Immediate Consideration and vacated the trial court’s order denying defendant’s motion to modify bail in light of the COVID-19 pandemic.
6

Case 2:20-cv-10949-LVP-MJH ECF No. 82 filed 05/12/20 PageID.2855 Page 7 of 18
B. Plaintiffs’ Cannot Show Numerosity Each member of a class must have suffered an actionable injury. Sprague v General Motors Corp, 133 F3d 388, 397 (6th Cir. 1998). Plaintiffs’ Motion refers to the number of possible inmates who could be involved in each class or subclass. However, Plaintiffs’ Motion has failed to identify one (1) potential class member who has exhausted administrative or state remedies. While exhaustion is an affirmative defense, it is relevant as the Court is required to conduct a “rigorous analysis” prior to certifying the class. Gooch, supra. Moreover, without satisfying the requisite administrative or state remedies, it is impossible for class members to have sustained an actionable injury. Sprague, supra. Even the most cursory review of Plaintiffs’ Motion and the transcript of the preliminary injunction hearing establish that Plaintiffs have not and cannot show they have exhausted the requisite administrative or state remedies. Despite Plaintiffs’ acknowledgment that the numerosity requirement requires a “substantial” number of individuals, they have not identified a single potential class member who has exhausted administrative or state remedies. Consequently, Plaintiffs are unable to establish class members are “so numerous” with respect to those that have viable claims. FRCP 23(a).
7

Case 2:20-cv-10949-LVP-MJH ECF No. 82 filed 05/12/20 PageID.2856 Page 8 of 18
C. Plaintiffs Cannot Show the Requisite Commonality/Typicality In order to demonstrate commonality, Plaintiffs must identify a “common contention” that is “capable of classwide resolution - which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc, 564 US at 350. This court has held that commonality does not exist when determinations “would require individualized inquiries.” Kensu, 2020 WL 1698662 at *12. See also, In re Am Med Sys, 75 F3d 1069, 1085 (6th Cir. 1996)(class certification improper because each plaintiff had a unique complaint); Holt v Campbell County, Ky,2012 WL 2069653 (E.D Ky June 8, 2012), (denying class certification with respect to inmates’ deliberate indifference claim because discrete factual circumstances precluded commonality and typicality.) The concepts of commonality and typicality “tend to merge in practice.” In re Whirlpool Corp Front-Loading Washer Products Liability Litig, 722 F3d 838, 853 (6th Cir.2013). In the context of a request to certify a class in the COVID-19 context, the Money court denied plaintiffs’ request on the basis that no commonality existed. Money, at *15. In denying plaintiffs’ request, the court noted: The imperative of individualized determinations, recognized by both sides in this case, makes this case inappropriate for class treatment. Each putative class member comes with a unique situation - different crimes,
8

Case 2:20-cv-10949-LVP-MJH ECF No. 82 filed 05/12/20 PageID.2857 Page 9 of 18
sentences, outdates, disciplinary histories, age, medical history, places of incarceration, proximity to infected inmates, availability of a home landing spot, likelihood of transmitting the virus to someone at home detention, likelihood of violation or recidivism and danger to the community. As Plaintiffs point out, commonality ‘does not require perfect uniformity.’ But it does require more uniformity that these Plaintiffs would have on the only matter “apt to drive the resolution of the litigation...” Id. (citations omitted). Plaintiffs’ Motion indicates “the two subclasses... must be released immediately.” (Plaintiffs’ Response, pp. 2-3). However, Plaintiff’s Motion includes three proposed subclasses. Regardless, with respect to plaintiffs’ request for release from incarceration (i.e. the “two “subclasses”), the Money court noted the above individualized determinations in addition to individualized assessments regarding 1) suitability for release and on what conditions (including relevant analyses regarding criminal history), 2) safety of inmate, 3) safety of inmate’s family, 4) safety of public at large, 5) inmate’s personal health and/or health history, 6) inmate’s family’s health (not wanting to put inmate at bigger risk). Id. In concluding class certification was not proper, the Money court stated, “By its very nature, the process would entail a highly individualized inquiry that is ill-suited to class treatment.” Id. The same analysis applies to Plaintiffs’ request in this case. All of the above factors requiring individual determinations establish that no commonality exists. In other words, the validity of Plaintiffs’ claims cannot be answered in “one stroke.”
9

Case 2:20-cv-10949-LVP-MJH ECF No. 82 filed 05/12/20 PageID.2858 Page 10 of 18
Wal-Mart, supra. This is especially true in regard to Plaintiffs’ request for class certification for purposes of a prisoner release of the “two subclasses.” Money, supra. The analysis also applies to Plaintiffs’ request that a class is certified for purposes other than release. In determining whether Plaintiffs’ Eighth or Fourteenth Amendment2 rights have been violated, individual determinations regarding housing location(s), security class, date of incarceration and cell assignment(s) would all need to be considered. These very considerations would also need to be considered with respect to the “most central common questions of fact” referenced in Plaintiffs’ Motion. (See Plaintiffs’ Motion, p. 20-21 of 32). Indeed, this is not a situation where a specific policy is at issue that has allegedly affected all class members as was present in the cases cited by Plaintiffs. Additionally, in order to show deliberate indifference, individual determinations as to how Plaintiffs’ constitutional rights were violated would need to be made. Simply put, the necessary individual determinations are numerous. As such, commonality does not exist and class certification is
2
Plaintiffs have asserted throughout this litigation that the analysis of a pre-trial detainee’s rights under the Fourteenth Amendment differ from the rights of a prisoner under the Eighth Amendment. These assertions are contrary to Sixth Circuit precedent. Ford v County of Grand Traverse, 535 F3d 483, 495 (2008)(“Pretrial detainees, however, are guaranteed the equivalent right to adequate medical treatment by the Due Process Clause of the Fourteenth Amendment and are subject to the same deliberate-indifference standard of care.” See also, McCain v St Clair Cty, 750 Fed Appx 399, 403 (6th Cir.2018); Medley v Shelby Cty, Ky, 742 Fed Appx 958, 961 (6th Cir.2018).
10

Case 2:20-cv-10949-LVP-MJH ECF No. 82 filed 05/12/20 PageID.2859 Page 11 of 18
improper. D. Adequate Representation The proposed representatives of the class cannot show they adequately
represent the class because they cannot show they have properly exhausted the requisite administrative or available state remedies prior to filing suit. See above subsection A. In other words, the proposed class representatives are improper because they lack standing and the requisite actionable injury. Additionally, although Plaintiffs propose a sub-class of pretrial detainees, none of the class representatives are pre-trial detainees and thus are not representative of this “sub-class.” “A class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Beattie v CenturyTel, Inc, 511 F.3d 554, 562 (6th Cir. 2007) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625–26, 117 S.Ct. 2231 (1997)). The lack of any class representatives in the “pre-trial detainee” subclass results in inadequate “representation” of this proposed subclass and thus it is not proper. Id.
E. Plaintiffs’ “Medically Vulnerable” Subclass is Not Sufficiently Defined In addition to the four requirements set forth in Rule 23(a), implicit in the rule is a class must be sufficiently defined or ascertainable. Johannes, at *10. “For a class to be sufficiently defined, the court must be able to resolve the question of whether
11

Case 2:20-cv-10949-LVP-MJH ECF No. 82 filed 05/12/20 PageID.2860 Page 12 of 18
class members are included or excluded from the class by reference to objective criteria.” Young v Nationwide Mut Ins Co, 693 F3d 532, 538-39 (6th Cir.2012). See also, In re OnStar Contract Litig, 278 FRD 352, 373 (E.D. Mich 2011)(“A class definition should be based on objective criteria so that class members may be identified without individualized fact finding.”); Brashear v Perry Cnty, 2007 WL 1434876 *2 (E.D. Ky. 2007)(“where extensive factual inquiries are required to determine whether individuals are members of a proposed class, class certification is likely improper.”). “A plaintiff does not satisfy the ascertainability requirement if individualized fact-finding or mini-trials will be required to prove class membership3.” Carrera v Bayer Corp, 727 F3d 300, 307 (3d Cir.2013). “The purpose of this requirement is to ensure administrative feasability, including the ability to notify absent class members in order to provide them an opportunity to opt out and avoid the potential collateral estoppel effects of a final judgment.” Kensu, at *7 (citing Cole v City of Memphis, 839 F3d 530, 541 (6th Cir.2016)).
Here, Plaintiff’s proposed “Medically Vulnerable” Subclass fails because it is not based on “objective criteria.” Young, supra. The very definition proposed by Plaintiffs reveals the inability to make determinations based on “objective criteria.”
3
This also serves to defeat Plaintiffs’ request for class certification because “individualized fact-finding” would be required to determine if each class member has exhausted administrative and/or state remedies. Id.
12

Case 2:20-cv-10949-LVP-MJH ECF No. 82 filed 05/12/20 PageID.2861 Page 13 of 18
Plaintiffs’ proposed subclass identifies a broad category of individuals that “experience an underlying medical condition that places them at particular risk of serious illness or death from COVID-19.” While Plaintiffs attempt to identify the “underlying medical conditions” that may form the basis of the subclass, even these conditions are ambiguous and subjective. For example, Plaintiffs’ proposed class includes “lung disease...or other chronic conditions associated with impaired lung function.” Obviously, “other chronic conditions” is subjective and subject to interpretation. The proposed subclass includes “diabetes or other endocrine disorders” without defining “other endocrine disorders.” The subclass also includes ambiguous diseases or conditions such as “compromised immune systems” “blood disorders,” “inherited metabolic disorders” and “developmental disability.” Again, all of these prevent an objective determination as to whether a specific individual meets the criteria of the class and thus the class is improper. Young, supra.
F. Rule 23(b) is Not Satisfied In addition to class certification being improper pursuant to FRCP 23(a), Plaintiffs cannot satisfy FRCP 23(b)(2) or FRCP 23(b)(3). Pursuant to Rule 23(b)(2): A class action may be maintained if Rule 23(a) is satisfied and if: ... the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.
13

Case 2:20-cv-10949-LVP-MJH ECF No. 82 filed 05/12/20 PageID.2862 Page 14 of 18
“The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” WalMart, 564 U.S. at 360. A class action under Rule 23(b)(2) is referred to as a “mandatory” class action because class members do not have an automatic right to notice or a right to opt out of the class. The defining characteristic of a mandatory class is “the homogeneity of the interests of the members of the class.” Romberio v. Unumprovident Corp., 385 F. App'x 423, 432 (6th Cir. 2009) (quoting Reeb v. Ohio Dep't of Rehab. & Corr., 435 F.3d 639, 649 (6th Cir. 2006)). Where Plaintiffs seek a remedy that “would merely initiate a process through which highly individualized determinations of liability and remedy are made,” Rule 23(b)(2) is not satisfied. Jamie S v Milwaukee Pub Sch, 668 F3d 481, 499 (7th Cir.2012). See also, Corwin v Lawyers Title Ins Co, 276 FRD 484, 490 (E.D. Mich 2011).
To the extent Plaintiffs seek release orders, “highly individualized determinations” are necessary and thus Rule 23(b)(2) is not satisfied. In the context of state inmates who sought their release during the COVID-19 pandemic, the court in Mays v Dart, - - - F3d - - - 2020 WL 1987007 (N.D. Ill April 27, 2020) denied plaintiff’s motion for class certification with respect to their claims for release under the PLRA and habeas pursuant to Rule 23(b)(2). Id. In denying plaintiffs’ motion, the
14

Case 2:20-cv-10949-LVP-MJH ECF No. 82 filed 05/12/20 PageID.2863 Page 15 of 18
court noted, “the Court would need to consider the circumstances of the detained persons and any threat they pose to public safety, which plainly would vary from one person to another. This is a process that would render the claim unsuitable to certification under Rule 23(b)(2)...” Id at *20. As discussed extensively above, any consideration regarding eligibility for release involves highly individualized determinations including assessments regarding inmate health, safety and threat to the public. Just as the court determined in Mays, these determinations preclude Rule 23(b)(2) from being satisfied. Therefore, class certification is not appropriate to the extent Plaintiffs request release from incarceration. FRCP 23(b)(2); Mays, supra.
“Rule 23(b)(3) classes ... must meet predominance and superiority requirements, that is, ‘questions of law or fact common to class members [must] predominate over any questions affecting only individual members’ and class treatment must be ‘superior to other available methods.’ ” Sandusky Wellness Center, LLC v ASD Specialty Healthcare, Inc, 863 F.3d 460, 466 (6th Cir. 2017)(emphasis supplied). “In discerning whether a putative class meets the predominance inquiry, courts are to assess ‘the legal or factual questions that qualify each class member's case as a genuine controversy,’ and assess whether those questions are ‘subject to generalized proof, and thus applicable to the class as a whole.’” Id at 468 (quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 594 (1997); Bridging Communities,
15

Case 2:20-cv-10949-LVP-MJH ECF No. 82 filed 05/12/20 PageID.2864 Page 16 of 18
Inc v. Top Flite Fin, Inc, 843 F.3d 1119, 1124 (6th Cir. 2016)). “‘If the same evidence will suffice for each member to make a prima facie showing, then it becomes a common question.’ ” Id (quoting Sandusky Wellness Center, LLC v. Medtox Scientific, Inc., 821 F.3d 992, 998 (8th Cir. 2016)). The plaintiffs “need not prove that every element can be established by classwide proof,” but “the key is to identify the substantive issues that will control the outcome.” Id. (quotations omitted). The superiority requirement results in classes that are only certified if they “achieve economies of time, effort and expense, and promote...uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Amchem Products v Windsor, 521 US 591, 615 (1997). “Rule 23(b)(3)’s predominance criterion is even more demanding” than the standard for satisfying the requirements of Rule 23(a). Comcast Corp v Behrend, 569 US 27, 34 (2013)(citations and quotations omitted).
Here, by the very nature of Plaintiffs’ claims, individualized claims predominate over factual and legal issues common to class members. Sandusky Wellness Center, supra. Plaintiffs make various allegations regarding the conditions of their particular confinement all of which are specific and unique to their personal incarceration. Each class member’s claims will need to be reviewed with regard to the nature, extent and veracity of their allegations regarding their confinement. Moreover,
16

Case 2:20-cv-10949-LVP-MJH ECF No. 82 filed 05/12/20 PageID.2865 Page 17 of 18
because Defendants have a due-process right to challenge the membership of each class member, they are entitled to perform an individual examination as to whether each class member properly exhausted administrative remedies prior to filing suit in accordance with the PLRA and/or habeas. This inquiry alone is highly individualized and cannot be established at the class level. Bridging Communities, Inc, supra.
In regard to Plaintiffs’ substantive claims, they must show a constitutional violation by showing deliberate indifference in addition to showing a Monell claim. Plaintiffs do not allege a written policy exists which is unconstitutional. See, In re Nassau County Strip Search Cases, 461 F3d 219 (2d Cir 2006)(“when plaintiffs are allegedly aggrieved by a single policy of defendants, such as the blanket policy at issue here, the case presents precisely the type of situation for which the class action device is suited.”)(citations and quotations omitted). Thus, the deliberate indifference portion of their claims will involve individualized proofs as to the actions or conduct of individual employees of Oakland County with respect to their conditions of confinement and common questions of law and fact do not predominate over individualized claims. Therefore, class certification should be denied. Bridging Communities, Inc, supra.
Finally, Plaintiffs fail to satisfy the superiority requirement. Because Plaintiffs have failed to show that any of the proposed class representatives nor any class
17

Case 2:20-cv-10949-LVP-MJH ECF No. 82 filed 05/12/20 PageID.2866 Page 18 of 18

members have exhausted the necessary administrative or state remedies, they are

unable to show that a class action would be superior to all other available methods of

adjudication. Due to Plaintiffs’ failure to exhaust the requisite remedies, class relief

is inappropriate as none of the individual claims are proper under the PLRA or

habeas. Consequently, Plaintiffs cannot show that proceeding on behalf of a class is

superior to litigating Plaintiffs’ individual claims.

WHEREFORE, Defendants respectfully request that this Honorable Court deny

Plaintiffs’ Motion to Certify Class for the reasons set forth above.

Respectfully submitted,

POTTER DeAGOSTINO O’DEA & CLARK

Dated: May 12, 2020

s/ ROBERT C. CLARK (P76359) Attorney for Defendants 2701 Cambridge Court, Suite 223 Auburn Hills, Michigan 48326 (248) 377-1700 rclark@potterlaw.com

CERTIFICATE OF SERVICE
I hereby certify that on May 12, 2020, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to the attorneys of record, and I hereby certify that I have mailed by United States Postal Service the paper to the following non-ECF participants: N/A.
/s/ ROBERT C. CLARK (P76359) Attorney for Defendants 2701 Cambridge Court, Suite 223 Auburn Hills, Michigan 48326 (248) 377-1700 rclark@potterlaw.com

18

Case 2:20-cv-10949-LVP-MJH ECF No. 82-1 filed 05/12/20 PageID.2867 Page 1 of 7

Case 2:20-cv-10949-LVP-MJH ECF No. 82-1 filed 05/12/20 PageID.2868 Page 2 of 7

Case 2:20-cv-10949-LVP-MJH ECF No. 82-1 filed 05/12/20 PageID.2869 Page 3 of 7

Case 2:20-cv-10949-LVP-MJH ECF No. 82-1 filed 05/12/20 PageID.2870 Page 4 of 7

Case 2:20-cv-10949-LVP-MJH ECF No. 82-1 filed 05/12/20 PageID.2871 Page 5 of 7

Case 2:20-cv-10949-LVP-MJH ECF No. 82-1 filed 05/12/20 PageID.2872 Page 6 of 7

Case 2:20-cv-10949-LVP-MJH ECF No. 82-1 filed 05/12/20 PageID.2873 Page 7 of 7

Case 2:20-cv-10949-LVP-MJH ECF No. 82-2 filed 05/12/20 PageID.2874 Page 1 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 82-2 filed 05/12/20 PageID.2875 Page 2 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 82-3 filed 05/12/20 PageID.2876 Page 1 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 82-3 filed 05/12/20 PageID.2877 Page 2 of 2

Case 2:20-cv-10949-LVP-MJH ECF No. 82-4 filed 05/12/20 PageID.2878 Page 1 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 82-4 filed 05/12/20 PageID.2879 Page 2 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 82-4 filed 05/12/20 PageID.2880 Page 3 of 4

Case 2:20-cv-10949-LVP-MJH ECF No. 82-4 filed 05/12/20 PageID.2881 Page 4 of 4

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 97 filed 05/21/20 PageID.3067 Page 1 of 15

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DISTRICT

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,

Case 2:20-cv-10949-LVP-MJH

v.

MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,

Defendants. __________________________________________________________________

DEFENDANTS’ EMERGENCY MOTION TO STAY PROCEEDINGS PENDING DETERMINATION OF APPEAL AND REQUEST FOR IMMEDIATE CONSIDERATION

Case 2:20-cv-10949-LVP-MJH ECF No. 97 filed 05/21/20 PageID.3068 Page 2 of 15

NOW COMES Defendant, OAKLAND COUNTY, by and through its

attorneys, POTTER DeAGOSTINO O’DEA & CLARK, and pursuant to FRCP 62,

hereby request this Honorable Court issue a stay of proceedings pending

determination of Defendant’s emergency appeal. Defendant requests immediate

consideration of its Motion.

POTTER, DeAGOSTINO, O’DEA & CLARK

Dated: May 21, 2020

s/ STEVEN M. POTTER (P33344) s/ ROBERT C. CLARK (P76359) Attorneys for Defendants 2701 Cambridge Court, Suite 223 Auburn Hills, Michigan 48326 (248) 377-1700 spotter@potterlaw.com rclark@potterlaw.com

BRIEF IN SUPPORT OF MOTION I. Factual Background
The Court is well familiar with the factual background of the instant action. For purposes of brevity, Defendants’ incorporate by reference the factual background set forth in their Motion to Dismiss Plaintiffs’ Petition for Habeas Corpus.
A. Procedural History Plaintiffs, all convicted felons, filed the instant action on April 17, 2020.
2

Case 2:20-cv-10949-LVP-MJH ECF No. 97 filed 05/21/20 PageID.3069 Page 3 of 15
Plaintiffs’ Petition, titled “Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief” seeks class certification for potentially all inmates incarcerated at Oakland County Jail and requests their release from jail.
On April 23, 2020, Defendants filed their Motion to Dismiss Plaintiffs’ Petition for Habeas Corpus, Claims against Bouchard and Childs and Response to Plaintiff’s Motion for Temporary Restraining Order.
On April 27, 2020, Plaintiffs’ filed their Response to Defendants’ Motion. On May 21, 2020, the Court issued its Opinion and Order denying Defendants’ Motion to Dismiss Plaintiff’s Petition for Habeas Corpus. On May 21, 2020, Defendant timely filed its Notice of Appeal.
ARGUMENT I. The Court Should Stay the Instant Action Pending Appeal
A. Plaintiffs’ Habeas Claims In its Opinion, the Court stated: The record shows that the congregate nature of a jail facility makes it impossible to put in place and enforce precautionary measures and, thereby, ensure the reasonable safety of medically-vulnerable inmates.
*** Considering the weight of the public health evidence demonstrating the medically-vulnerable population’s unique, specific, and life-threatening susceptibility to COVID-19 - paired with the communal nature of jail
3

Case 2:20-cv-10949-LVP-MJH ECF No. 97 filed 05/21/20 PageID.3070 Page 4 of 15
facilities, the Court finds that home confinement or early release is the only reasonable response to this unprecedented and deadly pandemic. In other words, the inherent characteristics of the Jail cannot be altered to any extent that would make it safe enough to protect the members of the Medically-Vulnerable Subclass from the potentially lethal combination of their unique vulnerabilities and COVID-19's health shattering consequences. Any response other than release or home confinement placement constitutes deliberate indifference. (R.57, Opinion and Order, pp. 57-59; Page ID#3043-3045)(emphasis supplied). This Court’s findings in its Opinion setting forth a universal mandate nonspecific to prison systems (regardless of state or federal) are unprecedented and without authority. It is precisely the type of issue that should be addressed by the Sixth Circuit prior to the implementation of such an unprecedented procedure (i.e. release of medically vulnerable inmates). Simply put, the Court’s express findings that “home confinement or early release is the only reasonable response” for the medically vulnerable and “any response other than release or home confinement placement constitutes deliberate indifference” is the equivalent of granting Plaintiffs’ habeas petition. The court has discretion to delay the release of a successful habeas petitioner in order to provide defendant an opportunity to correct the constitutional violation. Hilton v Braunskill, 481 US 770, 775 (1987). Specifically, “general standards governing stays of civil judgments should also guide courts when they must decide whether to release a habeas petitioner pending the State’s appeal...” Id. The
4

Case 2:20-cv-10949-LVP-MJH ECF No. 97 filed 05/21/20 PageID.3071 Page 5 of 15
factors to be considered are 1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; 2) whether the applicant will be irreparably injured absent a stay; 3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and 4) where the public interest lies. Id.; Slyusar v Holder, 740 F3d 1068, 1074 (6th Cir. 2014). Additionally, “the State’s interest in continuing custody and rehabilitation pending a final determination of the case on appeal is also a factor to be considered...” Id at 777-778. “These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together.” Serv Emps Int’l Union Local 1 v Husted, 698 F3d 341, 343 (6th Cir.2012)(quotations and citations omitted).
Here, the above factors favor a stay of the release(s) of Plaintiffs. First, the state undoubtedly has an interest in continuing custody and rehabilitation as Plaintiffs have been convicted in Michigan state courts and are serving their respective sentences in Oakland County Jail.
1. Strong Likelihood of Success Defendant is able to make a strong showing of success. Hilton, supra. It is undisputed that no federal court has granted habeas to state prisoners under similar circumstances. This includes the fact that no federal court has granted habeas for state court prisoners due to concerns regarding COVID-19. Plaintiffs’ counsel conceded
5

Case 2:20-cv-10949-LVP-MJH ECF No. 97 filed 05/21/20 PageID.3072 Page 6 of 15
this during oral argument. Indeed, the only cases to date which have addressed state prisoners’ requests for release denied same. Money v Pritzker,- - - F. Supp. 3d - - - , 2020 WL 1820660 (N.D. Ill, April 10, 2020); Coleman & Plata v Newsom, 2020 WL 1675775 (E.D. Cal April 4, 2020); Nellson v Barnhart, 2020 WL 1890670 (D.Colo. Apr. 16, 2020); Baxley v Jividen, 2020 WL 1802935 (S.D. W Va April 8, 2020); Amos v Taylor, 2020 WL 1978382 (N.D. Miss April 24, 2020). Despite this authority, this Court has determined that “home confinement or early release is the only reasonable response” for the medically vulnerable.
Absent binding authority, this Court determined Plaintiffs were excused from exhausting state remedies. Defendant has a strong likelihood of success on appeal regarding this issue in light of United States Supreme Court authority requiring a federal habeas petitioner to first exhaust state remedies. See, 28 U.S.C. § 2254(b)(1); O’Sullivan v Boerckel, 526 US 838, 845 (1999); Duckworth v Serrano, 454 US 1, 3 (1981)(holding the exhaustion requirement “serves to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners’ federal rights; Irick v Bell, 565 F3d 315, 323 (6th Cir.2009)“ [A] federal habeas petitioner “must first exhaust the remedies available in state court by fairly presenting his federal claims before the state court; the federal court will not review unexhausted claims.” Defendant is also able to
6

Case 2:20-cv-10949-LVP-MJH ECF No. 97 filed 05/21/20 PageID.3073 Page 7 of 15

establish state corrective process was available1 to Plaintiffs in light of multiple examples provided to the Court of inmates being released from OCJ as a result of concerns related to COVID-19. (R.70, PI Hearing Defendants’ Exhibit E; R. 71, PI Hearing Defendants’ Exhibit F; R. 82-4, People v Chandler, Michigan Supreme Court Case No. 1612652). In light of the lack of authority providing the relief obtained by Plaintiffs in this case, Defendant is entitled to a stay of this Court’s order for the Sixth Circuit to determine whether such exhaustion is a pre-requisite for state prisoners seeking habeas in the COVID-19 context. Indeed, this issue relates to the crux of the Court’s Preliminary Injunction requiring Defendant to provide a list of medically vulnerable inmates for purpose of release.
2. Irreparable Harm to Defendant The irreparable harm to Defendant of releasing inmates is simple. In the event the Court’s order is reversed subsequent to the release of medically vulnerable inmates (which the Court explicitly indicated would subsequently occur), Defendant will be required to locate and detain the inmates. The difficulty, if not impossibility,

1

Although never discussed by the Court, all pretrial detainees have an attorney as

part of their pending criminal matters.

2
On April 29, 2020, Defendants sought leave to file a Supplemental Brief to their Motion to Dismiss. The Court denied Defendants’ Motion, refused to permit Defendants an opportunity to file a Reply Brief in support of their Motion and ultimately struck Defendants’ Supplemental Brief. This Order is also subject of Defendant’s appeal.

7

Case 2:20-cv-10949-LVP-MJH ECF No. 97 filed 05/21/20 PageID.3074 Page 8 of 15
of such an endeavor is obvious. 3. Substantial Injury to Plaintiffs/Inmates
While it is anticipated that Plaintiffs will argue they will sustain “substantial injury” by potentially contracting COVID-19 if the Court issues a stay, the statistics do not support such an argument. The first inmate to test positive for COVID-19 occurred on March 28. On May 1, 2020, an initiative to test the entire inmate population began. During that initiative, 468 inmates were tested, 186 inmates refused to be tested and only 3 inmates tested positive3. (R.83-1). Thus, there is no basis for Plaintiffs’ argument that they will sustain “substantial injury” if this matter is stayed pending Defendant’s appeal.
4. Public Interest To the extent the Court’s Order contemplates the eventual release of inmates, the public interest in Plaintiffs’ remaining incarcerated pending the outcome of Defendant’s appeal heavily weighs in favor of this Court granting a stay. All of Plaintiffs are convicted felons. The following is a summary of Plaintiffs’ felony criminal histories: Raj Lee’s criminal history includes convictions of felony home invasion, felony
3
The Court’s Preliminary Injunction requires Defendant to continue testing of inmates thus implicitly recognizing the accuracy of Defendant’s prior testing.
8

Case 2:20-cv-10949-LVP-MJH ECF No. 97 filed 05/21/20 PageID.3075 Page 9 of 15
receiving and concealing stolen property, and most recently felony uttering and publishing countefeit bills or notes. (R.30-5)4.
David Kucharski’s criminal history includes convictions of felony receiving and concealing stolen property, felony attempted home invasion, misdemeanor operating a vehicle with a forgery/alteration/false ID, felony larceny in a building, felony home invasion (multiple convictions), felony attempted breaking and entering, felony tampering with electronic monitoring device and misdemeanor retail fraud. (R.30-5).
Jamaal Cameron’s criminal history includes four convictions of felony uttering and publishing. (R.30-5).
Matthew Saunders’ criminal history includes convictions of felony armed robbery, felony home invasion (1st degree), felony unlawful driving away of a motor vehicle, felony receiving/concealing stolen property, felony breaking and entering a vehicle (multiple convictions).
Richard Briggs’ criminal history includes convictions of felony receiving and concealing stolen property (multiple convictions), felony attempted unlawful driving away of a motor vehicle (multiple convictions). (R.30-5).

4

None of these criminal histories has ever been disputed by Plaintiffs during this

litigation.

9

Case 2:20-cv-10949-LVP-MJH ECF No. 97 filed 05/21/20 PageID.3076 Page 10 of 15
Michael Bates’ criminal history includes convictions of misdemeanor larceny, felony larceny from a motor vehicle and felony receiving/concealing stolen property. (R.30-5).
Michael Cameron’s criminal history includes convictions of felony receiving and concealing stolen property (multiple convictions) and felony unlawful driving away of a motor vehicle (multiple convictions). (R.30-5).
In light of these histories, it is readily apparent that Plaintiffs pose a threat5 to the public and the public has an interest in Plaintiffs completing their sentences. Moreover, it should be noted that this does not include the numerous other individuals with significant criminal histories in the medically vulnerable subclass.
B. The Court’s Preliminary Injunction The same analysis equally applies to the Court’s Preliminary Injunction the provisions of which are set forth in its Order. In a context similar to the instant case, the district court and Fifth Circuit6 recently granted defendants’ motion to stay.
5
Unfortunately, the significant threat to the public was recently displayed when 100 inmates released from Rikers Island were re-arrested shortly after their release. (See Craig McCarthy, Dozens of Rikers Inmates Arrested Again After Coronavirus Release, New York Post, May 12, 2020)
6
The district court also temporarily stayed its preliminary injunction providing defendants the ability to appeal and the Fifth Circuit an opportunity to determine defendants’ motion to stay. The same should occur in the instant case.
10

Case 2:20-cv-10949-LVP-MJH ECF No. 97 filed 05/21/20 PageID.3077 Page 11 of 15
Valentine v Collier, 956 F3d 797 (5th Cir.2020). The same was granted in Swain v Junior, 2020 WL 2161317 (11th Cir. 2020).
A preliminary injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it.” Overstreet v. Lexington-Fayette Urban County Government, 305 F.3d 566, 573 (6th Cir. 2003). Courts have identified three types of particularly disfavored preliminary injunctions: “(1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that [he] could recover at the conclusion of a full trial on the merits.” See Schrier v. Univ. of Colorado, 427 F.3d 1253, 1259 (10th Cir.2005). Dulak v. Corizon Inc., No. 14-10193, 2014 WL 4678085, at *4 (E.D. Mich. June 9, 2014), report and recommendation adopted, No. 14-10193, 2014 WL 4678086 (E.D. Mich. Sept. 18, 2014). Where a prison inmate seeks an order enjoining state prison officials, the Court is required to proceed with the utmost care and must be cognizant of the unique nature of the prison setting. See Glover v. Johnson, 855 F.2d 277, 284 (6th Cir. 1988); Kendrick v. Bland, 740 F.2d 432, 438 n.3 (6th Cir. 1984). Contrary to the above, the Court’s Preliminary Injunction alters the status quo and enjoins state prison officials.
11

Case 2:20-cv-10949-LVP-MJH ECF No. 97 filed 05/21/20 PageID.3078 Page 12 of 15
The four factors set forth above support staying the Court’s Preliminary Injunction. In regard to Defendant’s likelihood of success, Defendant incorporates by reference the arguments set forth in its Motion to Dismiss and Response to Plaintiffs’ Motion for Class Certification. Plaintiffs have not complied with the requirements of the Prison Litigation Reform Act (“PLRA”) including exhaustion of administrative remedies. This alone is fatal to their § 1983 claim and precludes injunctive relief. Moreover, the requirements of the PLRA are applicable to Plaintiffs’ claims and neither Plaintiffs nor the Court have authored any binding authority establishing a federal district court has authority to release a state inmate under § 1983. Interestingly, the Chief Judge, Hon. Denise Page Hood, of this Court has previously agreed with Defendants’ position. See, Chambers v Bouchard, 20-cv-10916; - - WL - - (E.D. Mich. April 20, 2020). With respect to deliberate indifference, the Eleventh Circuit, recently held a district court erred in finding likelihood of success in similar circumstances as exist in the instant action. Swain v Junior, 2020 WL 2161317 (11th Cir. 2020). In regard to portions of the injunction that exceeded the recommendations of the CDC and/or set forth requirements that the OCJ implement its pre-existing policies, Defendants are also likely to succeed on the merits. See Valentine, supra.
The same arguments regarding the remaining factors also favor a stay of the Court’s Preliminary Injunction. The Court’s mandatory preliminary injunction
12

Case 2:20-cv-10949-LVP-MJH ECF No. 97 filed 05/21/20 PageID.3079 Page 13 of 15
(“particularly disfavored” by courts) requires Defendant to implement 22 various measures in the jail which will obviously result in irreparable harm. “Any time a state is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Maryland v King, 567 US 1301 (2012). An “invasion of... federalism principles” results in “institutional injury.” Texas v United States Envt’l Protection Agency, 829 F3d 405, 434 (5th Cir.2016). Here, the measures of prison policy in Michigan is assigned to the Michigan Department of Corrections. Despite the MDOC’s authority, the Court’s Order sets forth measures including affirmative hourly cleaning with products the jail is not currently in possession, the production of a list of medically-vulnerable subclass (in addition to providing supporting documentation) within three (3) business days, and the reconfiguration (including classification, security and housing systems) of portions of the jail. Not only is the Court’s Order unprecedented in its supervision of a county jail, the Order requires Defendant to implement measures not even considered by the CDC. Thus, the injunction prevents Defendant from “effectuating the Legislature’s choice and hence imposes irreparable injury.” Valentine, 956 F3d at 803.
By its numerous requirements, the injunction also creates an “administrative nightmare” for Defendant. Valentine, supra. Such a consequence was noted by the
13

Case 2:20-cv-10949-LVP-MJH ECF No. 97 filed 05/21/20 PageID.3080 Page 14 of 15
Valentine court in determining defendant would suffer irreparable harm if the order was not stayed. As the court stated, “the burden upon [defendant] in terms of time, expense, and administrative red tape is too great while it must respond in other ways to the crisis.” Id (citations and quotations omitted). Here, the Court’s Order requiring Defendant to affirmatively enact new measures including but not limited to the management of housing units, cells and corresponding protocols regarding same places extensive administrative requirements on Defendant at a time while they are already implementing and executing policies which have limited positive inmates to six (6) as of the present date.
Plaintiffs are unable to show substantial injury if the preliminary injunction is not stayed. In order to make such a showing, Plaintiffs must show they will “suffer irreparable injuries even after accounting for the protective measures” taken by Defendant. Id at 804. The statistics of Defendant’s testing establish Plaintiffs are unable to make such a showing. For the same reasons stated in Valentine, supra, Plaintiffs are unable to show they will suffer substantial injury if the preliminary injunction is not stayed. Id.
Finally, the public interest also favors a stay. “Because the state is the appealing party, its interest and harm merge with that of the public.” Veasey v Abbott,
14

Case 2:20-cv-10949-LVP-MJH ECF No. 97 filed 05/21/20 PageID.3081 Page 15 of 15

870 F3d 387, 391 (5th Cir.2017)(citing Nken v Holder, 556 US 418, 425-26 (2009)).

In light of the foregoing, this factor favors a stay. See, Valentine, 956 F3d at 804.

RELIEF REQUESTED

WHEREFORE, Defendant respectfully requests that this Honorable Court stay

its Order (including the provisions of same) dated May 21, 2020 pending Defendant’s

appeal for the reasons set forth above.

Respectfully submitted,

POTTER DeAGOSTINO O’DEA & CLARK

Dated: May 21, 2020

s/ STEVEN M. POTTER (P33344) s/ ROBERT C. CLARK (P76359) Attorney for Defendant 2701 Cambridge Court, Suite 223 Auburn Hills, Michigan 48326 (248) 377-1700 spotter@potterlaw.com rclark@potterlaw.com

CERTIFICATE OF SERVICE
I hereby certify that on May 21, 2020, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to the attorneys of record, and I hereby certify that I have mailed by United States Postal Service the paper to the following non-ECF participants: N/A.
/s/ STEVEN M. POTTER (P33344) Attorney for Defendant 2701 Cambridge Court, Suite 223 Auburn Hills, Michigan 48326 (248) 377-1700 spotter@potterlaw.com
15

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 98 filed 05/21/20 PageID.3082 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,

Case No. 20-cv-10949 Hon. Linda V. Parker

v. MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,

Defendants.

PLAINTIFFS’ MOTION FOR PARTIAL RECONSIDERATION Plaintiffs move for reconsideration on the narrow issue of the Court’s

dismissal of Sheriff Bouchard as a defendant in this case. The Sheriff is a necessary

party independent of the County and should not be dismissed at this stage of the

proceedings for two reasons.

First, as it pertains to medically vulnerable Plaintiffs’ claim for habeas relief

under 28 U.S.C. § 2241, Sheriff Bouchard is the custodian with authority to release

members of the Medically Vulnerable Subclass, and he is therefore the proper

defendant as to that claim. See, e.g., Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004)

1

Case 2:20-cv-10949-LVP-MJH ECF No. 98 filed 05/21/20 PageID.3083 Page 2 of 5
(“Whenever a § 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement.”); Roman v. Ashcroft, 340 F.3d 314, 319 (6th Cir. 2003); Stevenson v. United States, 2008 WL 65402, at *1 (E.D. Mich. Jan. 3, 2008) (“The proper respondent in [a § 2241 habeas] case is the person who holds the petitioner in custody[.]”). Sheriff Bouchard, rather than the County, is given “custody” of those detained at the Oakland County Jail under state law. Mich. Comp. Laws § 51.75. Therefore, Sheriff Bouchard must remain as a defendant in the case as to Plaintiffs’ claim arising from 28 U.S.C. § 2241.
Second, it would be premature to dismiss the § 1983 claims against Sheriff Bouchard as duplicative. While a suit against a municipal official in his official capacity is usually treated as a suit against the municipality, that is not always the case. A municipal official is sometimes deemed to act as a state official, such as when state law requires the official to take the relevant action. Familias Unidas v. Briscoe, 619 F.2d 391, 398-402, 404 (5th Cir. 1980) (granting declaratory relief against municipal officials as state officers because state law required the relevant action).1 A classic example of this principle is a sheriff or jailor enforcing state court orders. McNeil v. Community Probation Servs., Inc., 945 F.3d 991, 996 (6th Cir.
1 Regardless of for which entity Defendant acts, it has been the law for over a century since Ex Parte Young, 209 U.S. 123 (1908), that the official can be enjoined from federal constitutional violations.
2

Case 2:20-cv-10949-LVP-MJH ECF No. 98 filed 05/21/20 PageID.3084 Page 3 of 5
2019) (upholding a preliminary injunction prohibiting a sheriff from enforcing unconstitutional state court bail orders because “[t]here are plenty of cases allowing injunction actions like this one” pursuant to principles set forth in Ex Parte Young). Whether a municipal official is acting on behalf of the county or state is a question of fact,2 and it is therefore proper to reserve decision on whether claims against the official and county are duplicative until after discovery has taken place. See, e.g., Robinson v. Purkey, 2018 WL 5023330, at *48 (M.D. Tenn. Oct. 16, 2018) (declining to dismiss claims against county court clerks until discovery clarified whether they acted on behalf of municipality or state), rev’d and remanded on other grounds, 2020 WL 2551889 (6th Cir. May 20, 2020); see also Baar v. Jefferson Cty. Bd. of Educ., 476 F. App’x 621, 634 (6th Cir. 2012) (suggesting that courts should dismiss claims against officials as duplicative only after assessing municipality’s liability); Baker v. Cty. of Macomb, 2015 WL 5679838, at *9 (E.D. Mich. Sept. 28, 2015) (“[I]t does not appear that the Sixth Circuit affirmatively requires the dismissal of official capacity claims against an official when the government entity is also a party to the suit.”). Therefore, to the extent Defendants may contend that their relevant acts or omissions in this case are authorized or required by state law, Sheriff
2 Plaintiffs currently believe that the policies and practices at Oakland County Jail that contributed to this Court’s finding of deliberate indifference are within the discretion of Sheriff Bouchard to set or correct. However, Plaintiffs acknowledge the possibility that the County may claim that Sheriff Bouchard’s discretion is limited by state law.
3

Case 2:20-cv-10949-LVP-MJH ECF No. 98 filed 05/21/20 PageID.3085 Page 4 of 5

Bouchard should remain a defendant sued in his official capacity under Ex Parte

Young.

CONCLUSION

Plaintiffs respectfully move this Court to reconsider whether Sheriff Bouchard

should be dismissed from this case.

Respectfully submitted,

/s/ Krithika Santhanam Krithika Santhanam (DC Bar No. 1632807) Thomas B. Harvey (MBE #61734MO) Advancement Project National Office 1220 L Street, N.W., Suite 850 Washington, DC 20005 Tel: (202) 728-9557 Ksanthanam@advancementproject.org Tharvey@advancementproject.org
/s/ Philip Mayor Philip Mayor (P81691) Daniel S. Korobkin (P72842) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6803 pmayor@aclumich.org dkorobkin@aclumich.org

/s/ Cary S. McGehee Cary S. McGehee (P42318) Kevin M. Carlson (P67704) Pitt, McGehee, Palmer, Bonanni & Rivers, PC 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 cmcgehee@pittlawpc.com kcarlson@pittlawpc.com
/s/ Allison L. Kriger________ Allison L. Kriger (P76364) LaRene & Kriger, PLC 645 Griswold, Suite 1717 Detroit, MI 48226 (313) 967-0100 Allison.kriger@gmail.com

/s/ Alexandria Twinem Alexandria Twinem (D.C. Bar No. 1644851) Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Tel: 202-894-6126 Fax: 202-609-8030 alexandria@civilrightscorps.org

4

Case 2:20-cv-10949-LVP-MJH ECF No. 98 filed 05/21/20 PageID.3086 Page 5 of 5

Dated: May 21, 2020

Attorneys for Plaintiffs/Petitioners

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing instrument was filed with the U.S. District Court through the ECF filing system and that all parties to the above cause was served via the ECF filing system on May 21, 2020.
Signature: /s/ Carrie Bechill 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 (248) 398-9800 cbechill@pittlawpc.com

5

 
 Case 2:20-cv-10949-LVP-MJH ECF No. 99 filed 05/22/20 PageID.3087 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON, RICHARD BRIGGS, RAJ LEE, MICHAEL CAMERON, and MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,

Plaintiffs, v.

Civil Case No. 20-10949 Honorable Linda V. Parker

MICHAEL BOUCHARD, CURTIS D. CHILDS, and OAKLAND COUNTY,

Defendants. ____________________________________/

OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR RECONSIDERATION

This matter is before the Court on Plaintiffs’ Motion for Reconsideration

with respect to the dismissal of Oakland County Sheriff Michael Bouchard

(“Sheriff Bouchard”) in its May 21, 2020 decision granting Plaintiffs’ Motion for

Preliminary Injunction. Pursuant to Eastern District of Michigan Local Rule

7.1(h)(2), responses to motions for reconsideration generally are not allowed.

Because Sheriff Bouchard is custodian of the Jail Class, he in fact is the proper

respondent to their petition pursuant to 28 U.S.C. § 2241. See Gilmore v. Ebbert,

895 F.3d 834, 837 (6th Cir. 2018) (Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004)).

Additionally, for the reasons stated in Plaintiffs’ motion, he may be a proper

Case 2:20-cv-10949-LVP-MJH ECF No. 99 filed 05/22/20 PageID.3088 Page 2 of 2
defendant with respect to their claim under 42 U.S.C. § 1983, an issue that has not been fully litigated at this early stage of the proceedings.
Accordingly, IT IS ORDERED that Plaintiffs’ Motion for Reconsideration is GRANTED and Oakland County Sheriff Michael Bouchard IS REINSTATED as a Defendant/Respondent to this action. IT IS SO ORDERED.
s/ Linda V. Parker LINDA V. PARKER U.S. DISTRICT JUDGE Dated: May 22, 2020
2

 
 Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t0: 322-f1iled F05ile/2d6:/0250/26P/2a0g2e0ID.3P09a5ge: P1age 1 of 19(1 of 19)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Ms. Jennifer Bennett Mr. Deepak Gupta Gupta Wessler 100 Pine Street, Suite 1250 San Francisco, CA 94111
Mr. Robert C. Clark Mr. Steven M. Potter Potter, DeAgostino, Campbell & O'Dea 2701 Cambridge Court, Suite 223 Auburn Hills, MI 48326-0000
Mr. Daniel S. Korobkin ACLU Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201
Ms. Cary S. McGehee Pitt, McGehee, Palmer & Rivers 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067

Filed: May 26, 2020

Re: Case No. 20-1469, Jamaal Cameron, et al v. Michael Bouchard, et al Originating Case No. : 2:20-cv-10949
Dear Counsel: The Court issued the enclosed Order today in this case.
Sincerely yours,

cc: Mr. David J. Weaver Enclosure

s/Robin L. Johnson Case Manager Direct Dial No. 513-564-7039

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t0: 322-f2iled F05ile/2d6:/0250/26P/2a0g2e0ID.3P09a6ge: P1age 2 of 19(2 of 19)

No. 20-1469
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

JAMAAL CAMERON, et al., Plaintiffs-Appellees,
v. MICHAEL BOUCHARD, et al.,
Defendants, and OAKLAND COUNTY, MI,
Defendant-Appellant.

)

FILED

)

May 26, 2020

)

DEBORAH S. HUNT, Clerk

)

)

)

O R D E R

)

)

)

)

)

)

)

)

)

Before: COLE, Chief Judge; GUY and BUSH, Circuit Judges.
Plaintiffs, five pretrial detainees or convicted prisoners (collectively, “inmates”) housed in the Oakland County Jail (“the Jail”), on behalf of themselves and others housed or to be housed there, filed a complaint under 42 U.S.C. § 1983 and 28 U.S.C. § 2241 to obtain: basic safeguards to contain the transmission of the COVID-19 virus and protect inmates’ health; and the release or home confinement of a subclass of medically-vulnerable inmates in order to limit their exposure to the COVID-19 virus. Defendant Oakland County (“Oakland”) appeals a preliminary injunction requiring it to: (1) provide all Jail inmates with access to certain protective measures and medical care intended to limit exposure, limit transmission, and/or treat COVID-19; and (2) provide the district court and Plaintiffs’ counsel with a list of medically-

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t0: 322-f2iled F05ile/2d6:/0250/26P/2a0g2e0ID.3P09a7ge: P2age 3 of 19(3 of 19) No. 20-1469 -2-
vulnerable inmates within three business days. Oakland separately moves to stay the injunction pending resolution of the appeal and to expedite briefing and submission of the appeal. Plaintiffs oppose a stay, but not expediting the appeal. Oakland replies in support of a stay. Plaintiffs move to strike a portion of Oakland’s reply.
We balance four factors to determine whether, in our discretion, a stay is appropriate: (1) whether the movant “has made a strong showing that he is likely to succeed on the merits”; (2) whether the movant “will be irreparably injured absent a stay”; (3) whether issuance of a stay will “substantially injure” other interested parties; and (4) “where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009) (citation omitted). Oakland bears a “heavy burden” to demonstrate a stay is warranted, and must “make a ‘strong showing that [it is] likely to succeed on the merits.’” Ohio State Conference of NAACP v. Husted, 769 F.3d 385, 389 (6th Cir. 2014) (emphasis in original) (citation omitted).
Oakland challenges the preliminary injunction on multiple grounds, alleging that: the district court lacked jurisdiction under § 2241 over the action; even if Plaintiffs’ claims are cognizable under § 2241, they did not exhaust their state court remedies; habeas relief is not warranted on the merits; if the suit had been properly brought under the PLRA, Plaintiffs failed to exhaust their state administrative remedies and the injunction contravenes its requirements for the release of prisoners; and Plaintiffs’ municipal-liability claim fails because they cannot establish a violation of their Eighth and Fourteenth Amendment rights.
We review a district court’s grant of a preliminary injunction for an abuse of discretion, its legal conclusions de novo, and its factual findings for clear error. See Babler v. Futhey, 618 F.3d 514, 519−20 (6th Cir. 2010). The Supreme Court has neither foreclosed nor authorized a prisoner or pretrial detainee from using habeas relief to challenge his conditions of confinement. See Preiser v. Rodriguez, 411 U.S. 475, 499 (1973); cf. Ziglar v. Abbasi, ––– U.S. ––––, 137 S. Ct. 1843, 1862−63 (2017).

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t0: 322-f2iled F05ile/2d6:/0250/26P/2a0g2e0ID.3P09a8ge: P3age 4 of 19(4 of 19) No. 20-1469 -3-
Plaintiffs are not a homogenous group. Some are especially vulnerable to complications from COVID-19 while others face lower risks. That is why the injunction calls for both changes to protect all Plaintiffs while they remain in the Jail and also requires lists of higher-risk prisoners who may be conditionally released at some point. All of the plaintiffs, however, seek release, and not because the conditions of their confinement fail to prevent irreparable constitutional injury, but based on the fact of their confinement. Where a petitioner claims no set of conditions would be constitutionally sufficient, we construe the petitioner’s claim as challenging the fact of the confinement. See Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011); cf. Terrell v. United States, 564 F.3d 442, 446−49 (6th Cir. 2009). Insofar as § 2241 is properly invoked, it forecloses Oakland’s argument that the PLRA applies. See 18 U.S.C. § 3626(g)(2) (expressly excluding “habeas corpus proceedings challenging the fact or duration of confinement in prison” from the PLRA’s reach).
A plaintiff must exhaust state court remedies before filing a habeas petition “except in unusual circumstances.” Rose v. Lundy, 455 U.S. 509, 515 (1982). This requirement may be excused, however, if the state court remedies are “unavailable.” O’Sullivan v. Boerckel, 526 U.S. 838, 847−48 (1999). The district court found that Plaintiffs’ failure to exhaust was excused, noting that the cases granting relief on similar claims were alternatives to the standard review process and the Michigan state courts had not previously provided relief through those remedies.” Our review of the cases cited below establishes that that is the case here.
Given the procedural posture of the case, we do not review the merits of Plaintiffs’ remaining claims, but only whether the district court abused its discretion in entering the preliminary injunction. We accept the district court’s factual findings unless we find them clearly erroneous. Fed. R. Civ. P. 52(a)(6). Following an evidentiary hearing, and based on declarations and evidence submitted by the parties, the district court found that Oakland could not implement or enforce social distancing given how closely inmates were housed together.

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t0: 322-f2iled F05ile/2d6:/0250/26P/2a0g2e0ID.3P09a9ge: P4age 5 of 19(5 of 19) No. 20-1469 -4-
COVID-19 is highly contagious, can be transmitted by asymptomatic but infected individuals, and has reached pandemic proportions. Older individuals and those with certain underlying medical conditions are more likely to experience complications, need medical intervention, and die. Oakland has numerous positive COVID-19 infections, and inmates who are asymptomatic are housed near those with positive confirmed cases. The district court’s “account of the evidence is plausible in light of the record viewed in its entirety.” United States v. Ables, 167 F.3d 1021, 1035 (6th Cir. 1999). Thus, at this juncture, and given our deferential standard of review on motions to stay, “[t]he district court’s choice between two permissible views of the evidence cannot . . . be clearly erroneous.” Id.
And, as yet, the district court has not ordered the release of any inmate. If the district court does order the release of a prisoner, that may present a different question. Instead, it has required Defendants to provide the district court and Plaintiffs’ counsel with a list of medicallyvulnerable inmates so it may further consider, based on these inmates individual circumstances, whether release or other alternatives to detention are warranted. We have “consistently rejected attempts to obtain review of orders requiring the submission of remedial plans.” Groseclose v. Dutton, 788 F.2d 356, 359 (6th Cir. 1986) (per curiam).
“Preliminary injunctions in constitutional cases often turn on likelihood of success on the merits, usually making it unnecessary to dwell on the remaining three factors.” Maryville Baptist Church, 957 F.3d 610, 615−16 (6th Cir. 2020). The district court’s injunction requires Oakland to implement numerous measures in the Jail and fast-track a process to evaluate medicallyvulnerable inmates for potential release. But “[m]ere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough.” Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991) (citation omitted). And, notably, the Jail agreed below to adhere to many of the requested safeguards and also asserted it had already implemented many of them. Plaintiffs are rightfully

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t0: 322-f2iled F05ile/2d6:/0250/26P/2a0g2e0ID.3P10a0ge: P5age 6 of 19(6 of 19) No. 20-1469 -5-
frightened of contracting COVID-19. There is credible evidence here that Oakland’s efforts in mitigating transmission are not evenly or consistently applied. The public has a strong interest in both reducing the transmission of COVID-19. While the public also has an obvious interest in avoiding the release of inmates, the district court has emphasized that release is contingent upon a full and complete vetting of each inmate.
Finally, we consider whether to expedite briefing and submission of the appeal. “A party may move to expedite [an] appeal. The motion must show good cause to expedite.” 6 Cir. R. 27(f). A party may also move to expedite oral argument. 6 Cir. R. 34(c)(1). “The court may expedite oral argument, even if the time to file briefs has not expired by the date of the expedited hearing.” Id. If we schedule oral argument on an appeal from the grant of a preliminary injunction, “argument will generally be expedited.” 6 Cir. R. 34(c)(2). “When the court grants a motion to expedite, the clerk will schedule oral argument at an early date. A judge may direct an earlier hearing.” 6 Cir. R. 34(c)(3). Oakland has shown good cause to expedite briefing and submission, given that the district court directed it to act in a short period of time to implement procedural safeguards and start evaluating certain inmates for possible release.
The motion to stay is DENIED, the motion to expedite is GRANTED, and the motion to strike is DENIED AS MOOT. Upon submission, the merits panel will determine whether it will expedite oral argument or a decision.
JOHN K. BUSH, Circuit Judge, dissenting. Oakland County Jail, like the rest of our country, has been unable to fully escape the effects of COVID-19. There is evidence that Oakland County officials have reacted swiftly and implemented many measures to mitigate the spread of COVID-19 at the jail. As expected, and as is the case throughout the country, those efforts have fallen short of completely eradicating the risks of the virus. The district court thought the alleged deficiencies rose to the level of a constitutional violation. Despite the extensive efforts taken by Oakland County Officials, the

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t0: 322-f2iled F05ile/2d6:/0250/26P/2a0g2e0ID.3P10a1ge: P6age 7 of 19(7 of 19) No. 20-1469 -6-
district court “assumed the role of super-warden,” to borrow words used by the Eleventh Circuit in staying a preliminary injunction similar to the one issued below. See Swain v. Junior, No. 2011622-C, 2020 WL 2161317, at *5 (11th Cir. May 5, 2020); see also Valentine v. Collier, 956 F.3d 797, 806 (5th Cir. 2020) (staying preliminary injunction issued against a state prison system relating to COVID-19 issues). The district court entered an injunction that “hamstrings [those] officials with years of experience running correctional facilities, and the elected officials they report to, from acting with dispatch to respond to this unprecedented pandemic.” Swain, 2020 WL 2161317, at *5. The majority blesses the district court’s decision by denying Defendants’ motion to stay pending appeal. I respectfully dissent, because (1) the district court’s broad preliminary injunction does not respect the principles of federalism and comity inherent in habeas actions and espoused in the Prison Litigation Reform Act, 18 U.S.C. § 3626(a)(2) (PLRA); and (2) the district court erred in its application of Farmer v. Brennan, 511 U.S. 825 (1994), to Plaintiffs’ deliberate indifference claims.
I. Jail officials first began meeting to discuss COVID-19 around the end of February of 2020. These discussions quickly turned into action. On March 11, Captain Curtis Childs, the Commander of Corrective Services for the Sheriff’s Office, distributed a memo to the jail staff about proper cleaning procedures intended to limit the spread within the jail. On March 13, the jail stopped all visitation. On March 18, the jail initiated new arrest screenings for COVID-19. The next day, another memo from Captain Childs was posted throughout the jail advising inmates of the risks associated with COVID-19 and precautions that should be taken. As the pandemic progressed, Oakland County officials took more extensive precautionary measures. On March 20, the jail initiated its first prison release program, in which 110 inmates were released by Michigan state courts. The jail started quarantining new arrests for 14 days. It also began quarantining any inmate experiencing symptoms of COVID-19 and any

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t0: 322-f2iled F05ile/2d6:/0250/26P/2a0g2e0ID.3P10a2ge: P7age 8 of 19(8 of 19) No. 20-1469 -7-
inmate who had contact with a symptomatic inmate. Officials began to check inmates who were in symptomatic quarantine three times a day with a full set of vitals including a temperature check. If inmates tested positive, they were placed in the positive COVID-19 cells. All inmates received level-one masks as well as medical treatment if needed. The onsite jail clinic is staffed 24/7 by medical professionals. The jail has a contract with McLaren Pontiac Hospital to receive inmates who need hospital care.
Consistent with CDC guidelines, the jail cancelled group activities, used prepackaged meals for food service, used a UVI disinfecting machine and sanitized cells more frequently. The jail gave all inmates access to a disinfectant called DMQ, which is effective against COVID19. The disinfectant has been provided no less than three times per day during food delivery. Captain Childs has also attempted to promote social distancing by reducing cell numbers dependent upon inmate classification. As a result of these efforts, the jail population has been reduced from 1,156 on March 20 to 664 on May 1. In addition, the entire inmate population has been provided access to COVID-19 testing. As of the date of this appeal, there are six inmates who have tested positive for COVID-19 at the jail with a total population of more than 600. No inmate has died from the virus.
Plaintiffs filed this action on April 17. Two hours after Plaintiffs filed their petition and complaint, the district court entered a temporary restraining order against Defendants, requiring Defendants to, among other things, enhance their cleaning and sanitation measures, make efforts to increase social distancing, ensure that all jail staff wear personal protective equipment, respond to all COVID-19 related emergencies “within an hour,” and ensure there is no retaliation against any inmates for raising grievances about the health and safety conditions in the jail.
On May 21, following a telephonic evidentiary hearing, the district court entered a preliminary injunction against Defendants. The complete list of measures that the preliminary injunction orders is as follows:

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t0: 322-f2iled F05ile/2d6:/0250/26P/2a0g2e0ID.3P10a3ge: P8age 9 of 19(9 of 19)
No. 20-1469 -8-
• “Provide each incarcerated person, free of charge, on a bi-weekly basis, two bars of individual hand soap and a hand towel to allow regular hand washing and drying. Provide unrestricted access to additional hand soap upon an inmate’s request”;
• “Provide each cell and each dormitory-style housing unit, at no cost, a supply of disinfectant hand wipes or disinfectant products effective against the COVID-19 virus for daily cleanings. Any disinfectant products shall be provided at the manufacturer’s required concentration level and in sufficient quantities for inmates to clean and disinfect the floor and all surfaces of their housing unit”;
• “Provide daily access to cleaning supplies at no cost for inmates to clean their cells, including showers, toilets, telephones, and sinks. Supplies shall be disinfected before being shared between housing cells”;
• “Require cleaning of any surface or area shared by four (4) or more inmates, for example tabletops, telephones, door handles, television controls, equipment, and restroom fixtures. Surfaces and areas shall be cleaned every hour from 7 a.m. to 10 p.m. with bleach-based cleaning agents”;
• “Establish a protocol for monitoring and supervising the regular sanitization of housing units, common areas, and surfaces. Provide guidance to correctional staff to provide them with the knowledge needed to oversee and assure that cleaning is adequate and effective. Within five (5) business days of this Order, Defendants shall submit a certified report to the Court identifying the procedures implemented to carry out these directives”;
• “Provide access to clean showers and clean laundry, including clean personal towels on a regular basis, but at a minimum on a bi-weekly basis”;
• “Provide masks for all inmates and staff members. If cotton masks are provided, such masks must be laundered regularly. Users must be instructed on how to use the mask and the reasons for its use”;
• “Require all Jail staff to wear personal protective equipment, including masks and gloves, when interacting with any person, distributing items to prisoners (e.g., mail and hygiene supplies), or when touching surfaces in cells or common areas”;
• “Ensure, to the fullest extent possible, that all Jail staff wash their hands with soap and water or use hand sanitizer containing at least 60% alcohol both before and after touching any person or any surface in cells or common areas. Consider allowing staff to carry individual sized bottles of the referenced hand sanitizer while on duty”;
• “Maintain a protocol through which an incarcerated person may self-report symptoms of COVID-19 infection and to evaluate those symptoms, including temperature monitoring”;

Case 2:20-cv-10C9a4s9e-:L2V0P--1M4J6H9 EDCoFcuNmo.e1n0t:322f-i2led 0F5il/e2d6:/2005/26P/a2g0e2I0D.31P0a4ge:P9age 10 of 1(190 of 19)
No. 20-1469 -9-
• “Within three (3) business days, provide the Court and Plaintiffs with a detailed plan to continue testing all inmates for COVID-19, prioritizing members of the MedicallyVulnerable Subclass, as well as a plan to test all individuals who (i) have access to the housing units or (ii) interact with inmates or with individuals who have access to the housing units”;
• “Conduct immediate testing for anyone displaying known symptoms of COVID-19 and submit a weekly list to the Court and Plaintiffs’ counsel indicating (i) the number of tests performed that week and (ii) whether any inmates or Jail staff have tested positive for coronavirus”;
• “Provide adequate spacing of six feet or more between people incarcerated, to the maximum extent possible, so that social distancing can be accomplished”;
• “Ensure that individuals identified as having COVID-19, with symptoms of COVID-19, or having been exposed to COVID-19 receive adequate medical care and are properly quarantined in a non-punitive setting, with continued access to showers, mental health services, reading materials, phone and video calling with loved ones, communications with counsel, and personal property (to the extent reasonable and necessary to the inmate’s physical and mental well-being). Such individuals shall remain in quarantine and wear face masks and gloves when interacting with other individuals until they are no longer at risk of infecting other people. Facemasks must be replaced at medically appropriate intervals”;
• “Respond to all COVID-19 related emergencies (as defined by the medical community) within an hour”;
• “Post signage and information in common areas that provide: (i) general updates and information about the COVID-19 pandemic; (ii) information on how inmates can protect themselves from contracting COVID-19; and (iii) instructions on how to properly wash hands. Among other locations, all signage must be posted in every housing area and above every sink. Require staff to provide this information orally to low literacy and nonEnglish speaking people”;
• “Train all staff regarding measures to identify inmates with COVID-19, measures to reduce transmission, and the Jail’s policies and procedures during this crisis (including those measures contained in this Order)”;
• “Suspend co-pays for medical treatment for the duration of the pandemic and encourage all inmates to seek treatment if they are feeling ill”;
• “Waive all charges for medical grievances during the pandemic until further order of the Court”;
• “Within five (5) business days of this Order, establish and put into effect a policy

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t0: 322-f2iled F05ile/2d6:/0250/26P/2a0g2e0ID.3P10a5ge: P10age 11 of 1(191 of 19)
No. 20-1469 -10-
suspending, to the extent possible, the use of multi-person cells (i.e., with more than two individuals), except where: (i) the person is currently under quarantine, or (ii) a person for whom a medical or mental health professional has documented that particular housing is needed. All housing units utilized shall be configured to permit social distancing, to the maximum extent possible. If dormitory-style housing must be utilized, those areas shall be reconfigured to allow six-feet between inmate beds to the maximum extent possible. Defendants shall submit a report to the Court and Plaintiffs’ counsel within seven (7) business days detailing (i) the policy put into effect, (ii) the housing cells occupied, and (iii) the number of inmates in each cell, similar to the Housing Occupancy List introduced at the evidentiary hearing. (ECFNo. 68.) Defendants shall submit updated reports as to (i) and (ii) on a weekly basis”;
• “Ensure that Plaintiffs’ counsel have the ability to promptly communicate with detainees”;
• “Within three (3) business days, provide the Court and Plaintiffs’ counsel with a list of the members of the Medically-Vulnerable Subclass, which includes inmate identification numbers, ages, any health vulnerabilities, as well as records detailing the instant charges or convictions and any criminal history of the Subclass member. The purpose of this order is to enable the Court to implement a system for considering the release on bond or other alternatives to detention in the Jail for each subclass member. After reviewing the list, the Court will issue a schedule for Defendants to submit the following additional information for each Subclass member: (i) their position on whether the individual should be released on bond; (ii) the reasons why they maintain the individual should not be released; and (iii) what conditions should be put into place if bond is granted”
Defendants timely appealed and sought a stay of the preliminary injunction pending appeal.
II.
We balance four factors to determine whether a stay is appropriate: (1) whether the
movant “has made a strong showing that he is likely to succeed on the merits”; (2) whether the
movant “will be irreparably injured absent a stay”; (3) whether issuance of a stay will
“substantially injure” other interested parties; and (4) “where the public interest lies.” Nken v.
Holder, 556 U.S. 418, 434 (2009) (citation omitted). “Preliminary injunctions in constitutional
cases often turn on likelihood of success on the merits, usually making it unnecessary to dwell on
the remaining three factors.” Maryville Baptist Church v. Beshear, 957 F.3d 610, 615−16 (6th
Cir. 2020) (citing City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir.
2014) (en banc) (per curiam)). Applying these factors, I would conclude that a stay is warranted.

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t0: 322-f2iled F05ile/2d6:/0250/26P/2a0g2e0ID.3P10a6ge: P11age 12 of 1(192 of 19) No. 20-1469 -11-
A. A Likelihood of Success on Appeal Defendants have made a strong showing that they are likely to succeed on appeal for at
least three reasons: (1) Plaintiffs failed to exhaust their state remedies before bringing their claims under 28 U.S.C. § 2241; (2) the broad scope of the district court’s injunction contravenes the PLRA; and (3) the district court erred in its application of Farmer v. Brennan to Plaintiffs’ deliberate indifference claims.1 I will address each issue in turn.
1. Failure to Exhaust Plaintiffs concede that they did not attempt to exhaust state remedies before bringing their § 2241 claim. We have held that “[a] federal habeas petitioner ‘must first exhaust his available remedies before filing a § 2241 petition for habeas corpus relief.’” Aron v. LaManna, 4 F. App’x 232, 232 (6th Cir. 2001) (citing Little v. Hopkins, 638 F.2d 953, 953–54 (6th Cir. 1981)). There are exceptions to the exhaustion requirement, but none are applicable here. First, the exhaustion requirement is excused “where pursuing [a] remed[y] [at the state court] would be futile or” would fail to “afford the petitioner the relief he seeks.” Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 236 (6th Cir. 2009) (citations omitted). This exception does not apply here. Defendants provided several examples to the district court of Michigan state court judges releasing inmates from OCJ as a result of concerns related to COVID-19. For example, in State of Michigan v. James Neal Webb, No. 15-001821, an inmate at Oakland County Jail filed an “Emergency Motion for Release Due to Safety Threat Posed by COVID-19.” A Michigan State court granted Webb’s motion and released him from the OCJ. This was not a one-off occurrence. As Defendants note, Michigan state courts released 110 inmates in March alone.
1 In addition, many of the measures ordered by the district court were already being performed by Defendants pursuant to their existing policies. In Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984), “[t]he Supreme Court held that the Eleventh Amendment prohibits federal courts from enjoining state facilities to follow state law.” Valentine, 956 F.3d at 802. Thus, it was improper for the district court to enter an injunction requiring Defendants to engage in actions that they were already performing pursuant to existing policies. See id.

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t0: 322-f2iled F05ile/2d6:/0250/26P/2a0g2e0ID.3P10a7ge: P12age 13 of 1(193 of 19) No. 20-1469 -12-
Plaintiffs have not shown that the relief they seek is unavailable in Michigan state courts.2 Second, a federal habeas court may consider unexhausted claims where “‘unusual’ or
‘exceptional’ circumstances” exist. Rockwell v. Yukins, 217 F.3d 421, 423 (6th Cir. 2000) (citation omitted). The district court found that it could “conceive of few more unusual or exceptional circumstances than the current pandemic.” While I agree that COVID-19 presents unique circumstances for inmates, I disagree that those circumstances should excuse Plaintiffs’ failure to exhaust their state remedies. “[T]he Supreme Court has been quite clear that exhaustion is the preferred avenue and that exceptions are to be for narrow purposes only.” O’Guinn v. Dutton, 88 F.3d 1409, 1412 (6th Cir. 1996). If Michigan state courts were routinely delaying weeks or months to rule on petitions like the one Plaintiffs brought before the district court, then I might agree that exhaustion should be excused. But we have no evidence of such delays. For instance, in one of the Michigan state court cases cited by Defendants, the court received an emergency motion for release on April 27, 2020, and granted the motion only one day later. See State of Michigan v. James Neal Webb, No. 15-001821. So long as the state courts are capable of and willing to hear inmates’ petitions, “both comity and judicial efficiency . . . make it appropriate for [us] to insist on complete exhaustion.” Granberry v. Greer, 481 U.S. 129, 135 (1987).
2. Scope of the District Court’s Injunction I would also hold that the district court’s broad injunction contravenes the PLRA’s
mandate that “[p]reliminary injunctive relief must be narrowly drawn, extend no further than
necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive
2 The district court discounted the availability of relief through the Michigan state courts, finding that the relief Plaintiffs were seeking in their habeas petition was not the sort of relief the Michigan state courts had “provided . . . in the past.” See O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (citation omitted). This was error. Plaintiffs here are seeking an injunction to either improve the conditions of, or be released from, the OCJ. That is precisely the type of relief that Michigan state courts provided in the cases Defendants cited.

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t0: 322-f2iled F05ile/2d6:/0250/26P/2a0g2e0ID.3P10a8ge: P13age 14 of 1(194 of 19) No. 20-1469 -13-
means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). As the Fifth Circuit held in a
similar case:
This is a class-action injunction that applies to all inmates—disabled and nondisabled alike . . . . And it’s hard to see how an injunction that prescribes both a prison-wide testing regime and a cleaning schedule down to the [hour] interval is “narrowly drawn” or the “least intrusive means” available. So too with the requirement that every single sink have a sign over it with COVID-19 information. These may be salutary health measures. But that level of micromanagement, enforced upon threat of contempt, does not reflect the principles of comity commanded by the PLRA.
Valentine, 956 F.3d at 806. The injunction issued by the district court in this case is at least as
broad as the injunction issued in Valentine. For the reasons discussed in Valentine, the district court’s injunction violates the PLRA.3
3. Deliberate Indifference Inquiry
The district court also erred in holding that Plaintiffs satisfied the “subjective component”
necessary to show that prison officials acted with deliberate indifference. Comstock v. McCrary,
273 F.3d 693, 702 (6th Cir. 2001). In a deliberate indifference claim challenging the conditions
of a prisoner’s confinement, the plaintiff must satisfy both the objective and subjective
components of the Eighth Amendment inquiry. See Farmer v. Brennan, 511 U.S. at 846. The
same requirements apply to a pre-trial detainee’s due process rights under the Fourteenth
Amendment. See Richko v. Wayne Cty., Mich., 819 F.3d 907, 915 (6th Cir. 2016) (citation
omitted) (“Supreme Court precedents governing prisoners’ Eighth Amendment rights also
govern the Fourteenth Amendment rights of pretrial detainees.”). “To satisfy the objective
component, the plaintiff must allege that the medical need at issue is ‘sufficiently serious.’”
Comstock, 273 F.3d at 702 (citing Farmer, 511 U.S. at 834). “To satisfy the subjective
3 The majority appears to hold that the PLRA does not apply at all in this case because a subclass of Plaintiffs properly invoked § 2241. Nobody disputes that the PLRA applies to § 1983 claims, and Plaintiffs brought § 1983 claims on behalf of each subclass, including the medically-vulnerable subclass. Thus, the majority is incorrect to hold that the PLRA does not apply to those claims.

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t0: 322-f2iled F05ile/2d6:/0250/26P/2a0g2e0ID.3P10a9ge: P14age 15 of 1(195 of 19) No. 20-1469 -14-
component, the plaintiff must . . . show that the official being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and then disregarded that risk.” Id. at 703 (citing Farmer, 511 U.S. at 837). The defendant must have a subjective “state of mind more blameworthy than negligence,” akin to criminal recklessness. Farmer, 511 U.S. at 835, 839–40.
With respect to the “Jail Class” members, the district court found that Plaintiffs satisfied
the subjective component because the record “reflects a willingness to continue housing Jail
Class members in a manner that increases their risk of infection.” The district court highlighted
the following as evidence of Defendants’ deliberate indifference:
• “[T]hough the jail outlined enhanced cleaning and sanitation policies and procedures, members of the Jail Class continue to share toilets, sinks, showers, [etc.], . . . sometimes without disinfection between each use.”
• Several inmates have indicated that “Jail Class members still have insufficient access to soap and cleaning supplies.”
• Some jail officers sometimes either do not wear masks or only wear masks under their chins, and they “usually” do not wear gloves when serving food.”
• There are purportedly some jail cells unoccupied, yet Defendants have offered no explanation regarding why individuals have not been moved to those cells.
• Defendants’ quarantine procedure is “insufficient.”
• Defendants transferred some inmates from the East annex, where there are currently no cases of COVID-19, to the Main Jail, where there are multiple cases of the virus.
With respect to the medically-vulnerable population, the district court found that
“Defendants’ failure to make prompter . . . use of their authority to” release or place these
inmates in home confinement was enough to satisfy the subjective component. The district court
noted that “at this moment, Defendants are actively seeking the release of only 7 percent of the
medically-vulnerable population.”

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t0: 322-f2iled F05ile/2d6:/0250/26P/2a0g2e0ID.3P11a0ge: P15age 16 of 1(196 of 19) No. 20-1469 -15-
In focusing only on Defendants’ purportedly inadequate measures and failing to address Defendants’ culpable mental state, the district court incorrectly collapsed the subjective and objective components of the deliberate indifference inquiry. Critically, none of the above evidence tends to show that Defendants subjectively believed the measures they were taking were inadequate. To be sure, the proof supports a finding that the measures have been ineffective in completely eradicating the risk of Covid-19 in the jail, but there are no measures currently available that will do that for any facility, prison or otherwise. This reality is tragic, but it is not sufficient to find that Plaintiffs are likely to succeed on their deliberate indifference claims, because the evidence does not show that Defendants acted with the level of indifference akin to criminal recklessness. While evidence of the ineffectiveness of measures to eradicate COVID-19 is relevant to the objective component, it is not sufficient, standing alone, to satisfy the subjective component. There is no evidence of Defendants’ culpable mental state, and this lack of evidence renders it unlikely that Plaintiffs will prevail on their deliberate indifference claim. See Rhinehart v. Scutt, 894 F.3d 721, 738 (6th Cir. 2018) (citing Farmer, 511 U.S. at 844) (“A[n] [official] is not liable under the Eighth Amendment if he or she provides reasonable treatment, even if the outcome of the treatment is insufficient or even harmful.”); Swain, No. 2011622-C, 2020 WL 2161317, at *3 (reversing a finding of deliberate indifference because “the district court cited no evidence to establish that the defendants subjectively believed the measures they were taking were inadequate”); Valentine, 956 F.3d at 802 (“[T]reating inadequate measures as dispositive of the Defendants’ mental state . . . resembles the standard for civil negligence, which Farmer explicitly rejected.”).
In contrast to the absence of evidence showing subjective deliberate indifference, there is substantial evidence that the OCJ has implemented several important measures to combat

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t0: 322-f2iled F05ile/2d6:/0250/26P/2a0g2e0ID.3P11a1ge: P16age 17 of 1(197 of 19) No. 20-1469 -16-
COVID-19. Such measures included, but were not limited to, stopping all visitation, posting COVID-19 memos throughout the facility, advising inmates of the risks associated with COVID19, initiating a prison release program, quarantining new arrestees for fourteen days, quarantining inmates who have COVID-19 symptoms, checking symptomatic inmates three times a day with a full set of vitals, and distributing masks to all inmates. In fact, Plaintiffs’ own expert, Dr. Paredes, performed an inspection of the OCJ and found zero violations of the district court’s Temporary Restraining Order, which ordered many safety and health measures that were already being followed pursuant to the OCJ’s existing policies prior to issuance of the TRO. This evidence belies the notion that Defendants acted in a criminally reckless manner, and further undercuts the district court’s conclusion to the contrary. See Rhinehart, 894 F.3d at 738. B. Irreparable Injury
“[A]ny time a state is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Maryland v. King, 567 U.S. 1301 (2012) (Roberts, C.J., in chambers) (citation omitted). The Michigan state legislature assigned prison policy to the Michigan Department of Corrections (MDOC). In the face of the MDOC’s authority, the district court’s order sets forth measures that include hourly cleaning, the production of a list of inmates in the medically-vulnerable subclass within three business days, and the reconfiguration of portions of the jail. Indeed, the order requires Defendants to implement measures not even recommended by the CDC. The order thus places the district court in a position of second-guessing Defendants and other experts while they are already implementing and executing policies that have helped curb the outbreak at the jail. That constitutes irreparable injury. See Woodford v. Ngo, 548 U.S. 81, 94 (2006) (citation omitted) (“[I]t is ‘difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.’”); Valentine, 956 F.3d at 803–04 (holding that an order requiring the Texas

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t0: 322-f2iled F05ile/2d6:/0250/26P/2a0g2e0ID.3P11a2ge: P17age 18 of 1(198 of 19) No. 20-1469 -17-
Department of Criminal Justice to enact various measures to mitigate the spread of COVID-19 in jails irreparably harmed the defendants); Swain, No. 20-11622-C, 2020 WL 2161317, at *5 (holding that “the district court assumed the role of ‘super-warden’” and irreparably harmed the defendants by granting similar injunctive relief). C. Balance of Harms and Public Interest
The balance of harms and public interest also weigh in favor of Defendants. Because the local officials are the appealing party, the government interests that they represent and the harms to the government merge with those of the public. See Nken, 556 U.S. at 435. As discussed above, the government’s, and therefore the public’s, interest in a stay is substantial. See Rhinehart v. Scutt, 509 F. App’x 510, 516 (6th Cir. 2013) (“The public interest in leaving the administration of state prisons to state prison administrators is another factor weighing against preliminary injunctive relief in this case.”).
The public, of course, also has interests in keeping in jail those prisoners who have been convicted of crimes and those pre-trial detainees who have not satisfied judicially-imposed requirements and conditions for bail. See King, 567 U.S. at 1301. Although the preliminary injunction does not order the release of any prisoner, its requirement that jail officials provide a list of certain prisoners sets in motion what may be the release of prisoners to the general population in the future. This outcome flows from the district court’s observation in its Order that “home confinement or early release is the only reasonable response to this unprecedented and deadly pandemic . . . . Any response other than release or home confinement placement constitutes deliberate indifference.” This statement suggests that the district court may be contemplating the release of convicted prisoners without adequate consideration of the danger that may be posed to society by their release, and the release of pre-trial detainees who have not satisfied judicially-imposed conditions and requirements of bail, which are imposed to reduce flight risk. These concerns are best left to state courts in the first instance. That is why, as noted,

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t0: 322-f2iled F05ile/2d6:/0250/26P/2a0g2e0ID.3P11a3ge: P18age 19 of 1(199 of 19) No. 20-1469 -18-
Plaintiffs are required to exhaust their state-court remedies—which they admit they have not done—before they come to federal court for relief.
Furthermore, the district court’s finding that the public has an interest “in avoiding serious illness and/or death” does not tip the balance of harms in favor of the preliminary injunction. While COVID-19 certainly poses a harm to all Americans, the question is not “whether COVID-19 presents a danger to the [public] . . . The question is instead whether the plaintiffs have shown that they will suffer irreparable injuries that they would not otherwise suffer in the absence of an injunction.” Swain, No. 20-11622-C, 2020 WL 2161317, at *5 (citations omitted). They have not shown that they are likely suffer any such injuries, because their deliberate indifference claim is likely to be unsuccessful.
Finally, as for the harm to Plaintiffs, the district court found that Plaintiffs will suffer injury to their constitutional rights if the preliminary injunction against Defendants does not proceed. But because it is likely that Plaintiffs do not satisfy the subjective component of the deliberate indifference inquiry, it is also likely that their constitutional rights have not been violated.
III. I would hold that each of the four factors weighs in favor of granting Defendants’ motion to stay pending appeal. In particular, Defendants have made a strong showing of likelihood of success on appeal because Plaintiffs have not exhausted their remedies at the state level, the broad scope of the district court’s preliminary injunction contravenes the PLRA, and Plaintiffs have not submitted evidence to show any subjective deliberate indifference by Defendants in responding to COVID-19. I therefore must respectfully dissent.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk

 
 Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t3: 949-f1iled F06ile/1d1:/0260/11P/2a0g2e0ID.3P55a3ge: P1age 1 of 11(1 of 11)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: June 11, 2020

Ms. Kristen Lara Baiardi Abbott Nicholson 1900 W. Big Beaver Road Suite 203 Troy, MI 48084
Ms. Jennifer Bennett Gupta Wessler 100 Pine Street Suite 1250 San Francisco, CA 94111
Mr. Robert C. Clark Potter, DeAgostino, O'Dea & Clark 2701 Cambridge Court Suite 223 Auburn Hills, MI 48326
Mr. Steven H. Cook Law Office 3707 Day Road Rockford, TN 37853-3531
Mr. Thomas M. DeAgostino I Potter, DeAgostino, O'Dea & Clark 2701 Cambridge Court Suite 223 Auburn Hills, MI 48326
Mr. Andrew Goetz United States Attorney's Office 211 W. Fort Street, Suite 2001 Detroit, MI 48226

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t3: 949-f1iled F06ile/1d1:/0260/11P/2a0g2e0ID.3P55a4ge: P2age 2 of 11(2 of 11)
Mr. Deepak Gupta Gupta Wessler 1900 L. Street, N.W. Suite 312 Washington, DC 20036
Mr. Keith Hollingshead-Cook Law Office P.O. Box 3432 Peoria, IL 61612
Mr. Daniel S. Korobkin ACLU Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201
Mr. Philip Edwin Mayor ACLU Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201
Ms. Cary S. McGehee Pitt, McGehee, Palmer & Rivers 117 W. Fourth Street Suite 200 Royal Oak, MI 48067
Mr. Peter L. Menna Oakland County Corporation Counsel 1200 N. Telegraph Road Department 419 Pontiac, MI 48341
Mr. Steven M. Potter Potter, DeAgostino, Campbell & O'Dea 2701 Cambridge Court Suite 223 Auburn Hills, MI 48326-0000
Ms. Alexandria Twinem Civil Rights Corps 1600 Connecticut Avenue, N.W. Eighth Floor Washington, DC 20009

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t3: 949-f1iled F06ile/1d1:/0260/11P/2a0g2e0ID.3P55a5ge: P3age 3 of 11(3 of 11)

Re: Case No. 20-1469, Jamaal Cameron, et al v. Michael Bouchard, et al Originating Case No. : 2:20-cv-10949
Dear Counsel, The Court issued the enclosed Order today in this case.
Sincerely yours,

cc: Mr. David J. Weaver Enclosure

s/Cathryn Lovely Opinions Deputy

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t3: 949-f2iled F06ile/1d1:/0260/11P/2a0g2e0ID.3P55a6ge: P1age 4 of 11(4 of 11)

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0344n.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

JAMES CAMERON, et al., Plaintiffs-Appellees,
v.
MICHAEL BOUCHARD, et al., Defendants-Appellants

)

FILED
Jun 11, 2020

)

DEBORAH S. HUNT, Clerk

)

)

)

)

O R D E R

)

)

)

Before: COLE, Chief Judge; BUSH and LARSEN, Circuit Judges*
Plaintiffs, five pretrial detainees or convicted prisoners (collectively, “inmates”) housed in the Oakland County Jail (“the Jail”), filed a complaint under 42 U.S.C. § 1983 and 28 U.S.C. § 2241, on behalf of themselves and others housed or to be housed there. They claimed, among other things, that Defendants’ “deliberate indifference” to the substantial risk of harm posed by COVID-19 at the Jail violated their rights under the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. On May 21, the district court granted a preliminary injunction requiring Defendants to (1) provide all Jail inmates with access to certain protective measures and medical care intended to limit exposure, limit transmission, and/or treat COVID-19, and (2) provide the district court and Plaintiffs’ counsel with a list of medically vulnerable inmates within three business days.

* Judge Ralph B. Guy, Jr., recused himself from further participation in this case after ruling on Defendants’ first motion to stay the preliminary injunction pending appeal. Judge Joan L. Larsen was chosen as his substitute by random assignment.

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t3: 949-f2iled F06ile/1d1:/0260/11P/2a0g2e0ID.3P55a7ge: P2age 5 of 11(5 of 11)
No. 20-3447
On May 26, we denied Defendants’ motion to stay the preliminary injunction pending appeal. Cameron, et al. v. Bouchard, et al., 20-1469 (6th Cir. May 26, 2020) (order denying motion to stay). We held that Defendants had not shown a likelihood of success on the merits, given our deferential standard of review and the district court’s finding that Plaintiffs had satisfied both the objective and subjective components of the deliberate indifference inquiry. Id.
On May 31, the district court entered an order that began the process for granting bail for members of the medically vulnerable subclass. This order was consistent with the district court’s order granting a preliminary injunction, the purpose of which was to “enable the Court to implement a system for considering the release on bond or other alternatives to detention in the Jail for each subclass member.” (R. 94 at PageID 3063). On June 1, the district court identified fifty inmates under consideration for release and instructed Plaintiffs to submit bail applications on behalf of any of the fifty inmates.2
Defendants filed a renewed emergency motion to stay the district court’s proceedings, arguing that intervening changes in the law warrant a reconsideration of our initial denial of their motion. We agree with Defendants and GRANT their renewed emergency motion to stay, particularly in light of our recent decision to vacate a district court’s preliminary injunction in very similar circumstances in Wilson, et al. v. Williams, et al., No. 20-3447, 2020 WL 3056217, at *12 (6th Cir. June 9, 2020).
In Wilson, federal prisoners housed in the Elkton Federal Correctional Institution in Ohio filed a petition under 28 U.S.C. § 2241 to obtain release from custody to limit their exposure to
2 Plaintiffs argue that because Defendants could not appeal the May 31 and June 1 orders, those orders are not properly before us. Plaintiffs are correct that the May 31 and June 1 orders are not appealable. See Groseclose v. Dutton, 788 F.2d 356, 359 (6th Cir. 1986) (per curiam); Gooch v. Life Investors Ins. Co. of America, 672 F.3d 402, 416 (6th Cir. 2012). However, our appellate jurisdiction arises from the district court’s grant of the preliminary injunction on May 21. See 28 U.S.C. § 1292(a) (“[T]he courts of appeals shall have jurisdiction of appeals from . . . interlocutory orders of the district courts of the United States . . . granting . . . injunctions.”).
2

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t3: 949-f2iled F06ile/1d1:/0260/11P/2a0g2e0ID.3P55a8ge: P3age 6 of 11(6 of 11)
No. 20-3447
the COVID-19 virus. Id. at *1. They sought to represent all current and future inmates, including a subclass of inmates who—through age and/or certain medical conditions—were particularly vulnerable to complications, including death, if they contracted COVID-19. Id. On April 22, the district court entered a preliminary injunction much like the one entered here, requiring the Federal Bureau of Prisons (“BOP”) to, among other things, identify members of the medically vulnerable subclass and evaluate their eligibility for transfer out of confinement at Elkton. Id.
Justice Sotomayor granted a stay of the preliminary injunction pending appeal to our court. See Williams, et al. v. Wilson, et al., No. 19A1047, 2020 WL 2988458 (Mem) (June 4, 2020). On appeal, we vacated the preliminary injunction, holding that petitioners had not shown a likelihood of success on the merits of their Eighth Amendment claim, because they had not satisfied the subjective component of the deliberate indifference inquiry. Wilson, No. 20-3447, 2020 WL 3056217, at *12. Fatal to Plaintiffs’ claim was the fact that the BOP “responded reasonably” to the risks presented by COVID-19. Id. at *7. The BOP’s actions to control the virus included:
implement[ing] measures to screen inmates for the virus; isolat[ing] and quarantin[ing] inmates who may have contracted the virus; limit[ing] inmates’ movement from their residential areas and otherwise limit[ing] group gatherings; conduct[ing] testing in accordance with CDC guidance; limit[ing] staff and visitors and subject[ing] them to enhanced screening; clean[ing] common areas and giv[ing] inmates disinfectant to clean their cells; provid[ing] inmates continuous access to sinks, water, and soap; educat[ing] staff and inmates about ways to avoid contracting and transmitting the virus; and provid[ing] masks to inmates and various other personal protective equipment to staff.
Id. at *8.
Defendants took similar preventative measures here. Such measures included: distributing a memo to the Jail staff about proper cleaning procedures intended to limit the spread within the
3

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t3: 949-f2iled F06ile/1d1:/0260/11P/2a0g2e0ID.3P55a9ge: P4age 7 of 11(7 of 11)
No. 20-3447
Jail; stopping all visitation; initiating new arrest screenings for COVID-19; initiating a prison release program, in which 110 inmates were released by Michigan state courts; quarantining new arrestees for 14 days; quarantining any inmate experiencing symptoms of COVID-19 and any inmate who had contact with a symptomatic inmate; checking inmates who were in symptomatic quarantine three times a day with a full set of vitals including a temperature check; placing inmates that tested positive in the positive COVID-19 cells; offering level-one masks and medical treatment to all inmates; cancelling group activities; using prepackaged meals for food service; using a UVI disinfecting machine and sanitizing cells more frequently; giving all inmates access to a disinfectant called DMQ, which is effective against COVID-19; promoting social distancing by reducing cell numbers depending upon inmate classification; and providing access to COVID19 testing to the entire inmate population.
Given our intervening decision in Wilson, a case that is binding on us, we now agree with Defendants that Plaintiffs are unlikely to succeed on the merits of their Eighth and Fourteenth Amendment claims. “[W]hile the harm imposed by COVID-19 on inmates at [the Jail] ‘ultimately [is] not averted,’ [Defendants have] ‘responded reasonably to the risk’ and therefore ha[ve] [likely] not been deliberately indifferent to the inmates’ Eighth Amendment rights.” Id. (citing Farmer v. Brennan, 511 U.S. 825, 844 (1994)). Our conclusion that Plaintiffs are unlikely to succeed on the merits challenge is dispositive, because “[o]ur cases warn that a court must not issue a preliminary injunction where the movant presents no likelihood of merits success.” Id. at *11 (quoting Daunt v. Benson, 956 F.3d 396, 421–22 (6th Cir. 2020)).
We GRANT Defendants’ renewed emergency motion to stay the preliminary injunction pending resolution of Defendants’ appeal.
4

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t3: 949-f2iled F06ile/1d1:/0260/11P/2a0g2e0ID.3P56a0ge: P5age 8 of 11(8 of 11)
No. 20-3447
COLE, Chief Judge, dissenting. Largely for the reasons stated in the May 26, 2020, order in this case, I would deny the defendants’ renewed emergency motion for a stay. See Cameron, et al. v. Bouchard, et al., No. 20-1469 (6th Cir. May 26, 2020) (order denying motion to stay) (“May 26 Order”). The preliminary injunction is a modest order entered to maintain the health and safety of the inmates incarcerated at the Jail while this litigation proceeds. It does not order the release of a single inmate and only requires the defendants to take measures such as providing soap and disinfectant to inmates, performing regular cleaning of the facility, and establishing detailed protocols to address the spread of COVID-19 within the Jail.
I do not believe that Wilson v. Williams, No. 20-3447, 2020 WL 3056217 (6th Cir. June 9, 2020), changes the analysis that led us to deny the defendants’ request for a stay last month. In particular, I would note that the district court, following submissions by the parties and a multiday hearing, made several findings of fact regarding deficits in the defendants’ response to the COVID-19 pandemic at the Jail, findings that were not part of the record in Wilson. The record contains, for example, evidence that officials altered their practices for the sole purpose of an inspection of the Jail only to return to unsafe practices when the inspection concluded. It also reveals that inmates are unable to use disinfectant in their bunks and common areas, and that those common areas are rarely—if ever—cleaned. It shows that use of personal protective equipment by Jail officials has been, at best, sporadic, that officials move inmates between cells without regard for whether an inmate is symptomatic, and that there have been completely inadequate medical responses to inmates who do experience symptoms. Most concerningly, the record shows that officials threatened to punish complaining inmates by transferring them to areas of the Jail that are infested with COVID-19.
5

Case 2:20-cv-1C09a4s9e-:L2V0P-1-M46J9H EDCoFcuNmoe. n1t3: 949-f2iled F06ile/1d1:/0260/11P/2a0g2e0ID.3P56a1ge: P6age 9 of 11(9 of 11)
No. 20-3447
Wilson, like all Eighth Amendment cases, required a detailed examination of a distinct factual record. I do not view the result of that examination as dispositive of our inquiry here. Moreover, the pretrial detainees at the Jail bring their claims under the Fourteenth Amendment, and, as such, I am not convinced that they must satisfy the deliberate indifference standard that doomed the petitioners’ Eighth Amendment claims in Wilson. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015); see also J.H. v. Williamson Cty., 591 F.3d 709, 717 (6th Cir. 2020) (citing Bell v. Wolfish, 441 U.S. 520, 535, 538–39 (1979)).
But even if our determination in Wilson were indicative of the merits of the issues presented in this appeal, the majority misstates the import of such a finding to our disposition of the renewed motion for a stay. The defendants, in requesting a stay, bear a “heavy burden.” Ohio State Conference of NAACP v. Husted, 769 F.3d 385, 389 (6th Cir. 2004). And, under the test for evaluating a request for a stay, it is their burden, not the plaintiffs’, to make “a strong showing that [they are] likely to succeed on the merits.” Nken v. Holder, 556 U.S. 418, 434 (2009) (internal quotation marks and citation omitted). So the procedural posture is, at this stage, quite unlike it was in Wilson.
Additionally, the defendants’ likelihood of success on the merits is just one of several factors that we consider in concert in order to determine whether we should exercise our discretion to stay the preliminary injunction pending appeal, rather than one that can decide the case on its own like the plaintiffs’ likelihood of success does at the merits stage. Id. Thus, even if our determination in Wilson did bear on the question of whether the defendants have shown that they are likely to prevail on the merits, we would still need to weigh the other factors we consider in this inquiry.
6

Case 2:20-cv-10C9a4s9e-:L2V0P--1M4J6H9 EDCoFcuNmo.e1n3t:949f-i2led 0F6il/e1d1:/2006/11P/a2g0e2I0D.35P6a2ge:P7age 10 of 1(110 of 11)
No. 20-3447
Each of those factors strongly weighs in the plaintiffs’ favor. They require us to consider whether a stay irreparably harms the plaintiffs, whether the lack of a stay irreparably harms the defendants, and where the public interest lies. Id. As already noted, the district court has not ordered the defendants to release any inmates. The preliminary injunction order only requires the defendants to take action to ensure inmate safety and provide information so that appropriate next steps can be determined. The severity of COVID-19 is well known by now. Inmates, especially those who are medically vulnerable, are at risk of severe illness or death should they contract the virus and, unlike those who are not incarcerated, cannot take all of the government-recommended precautions for avoiding the virus. They therefore depend on jail officials to take steps like the ones the preliminary injunction requires the defendants to take in order to remain safe. If the defendants abandon these measures as a result of this stay, plaintiffs may contract the virus while this litigation proceeds through the courts, which could cause serious illness or even death. These severe harms could not be remedied, even by the plaintiffs’ ultimate success in this suit.
Similarly, the limited nature of the preliminary injunction leads me to conclude that the defendants would not be irreparably harmed by it remaining in place pending this appeal. In fact, the only conceivable harm to defendants is that they will be required to spend time and resources complying with the preliminary injunction. But “[m]ere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough” to demonstrate irreparable harm. Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991) (quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)). Finally, providing inmates with basic necessities to ensure their protection against a deadly virus clearly
7

Case 2:20-cv-10C9a4s9e-:L2V0P--1M4J6H9 EDCoFcuNmo.e1n3t:949f-i2led 0F6il/e1d1:/2006/11P/a2g0e2I0D.35P6a3ge:P8age 11 of 1(111 of 11) No. 20-3447
does no harm the public interest. Indeed, failure to do so would seem to inflict a much greater harm in that regard.
For these reasons, I respectfully dissent. ENTERED BY ORDER OF THE COURT __________________________________ Deborah L. Hunt, Clerk
8

 
 Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-1 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g4e7: 1 Page 1 of 27(1 of 27)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: July 09, 2020

Ms. Kristen Lara Baiardi Abbott Nicholson 1900 W. Big Beaver Road Suite 203 Troy, MI 48084
Ms. Jennifer Bennett Gupta Wessler 100 Pine Street Suite 1250 San Francisco, CA 94111
Mr. Robert C. Clark Potter, DeAgostino, O'Dea & Clark 2701 Cambridge Court Suite 223 Auburn Hills, MI 48326
Mr. Steven H. Cook Law Office 3707 Day Road Rockford, TN 37853-3531
Mr. Thomas M. DeAgostino I Potter, DeAgostino, O'Dea & Clark 2701 Cambridge Court Suite 223 Auburn Hills, MI 48326
Mr. Andrew Goetz United States Attorney's Office 211 W. Fort Street, Suite 2001 Detroit, MI 48226

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-1 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g4e8: 2 Page 2 of 27(2 of 27)
Mr. Deepak Gupta Gupta Wessler 1900 L. Street, N.W. Suite 312 Washington, DC 20036
Mr. Keith Hollingshead-Cook Law Office P.O. Box 3432 Peoria, IL 61612
Ms. Jenipher R. Jones University of Denver Sturm College of Law 2255 E. Evans Avenue Suite 335 Denver, CO 80208
Mr. Daniel S. Korobkin ACLU Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201
Mr. Philip Edwin Mayor ACLU Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201
Ms. Cary S. McGehee Pitt, McGehee, Palmer & Rivers 117 W. Fourth Street Suite 200 Royal Oak, MI 48067
Mr. Peter L. Menna Oakland County Corporation Counsel 1200 N. Telegraph Road, Department 419 Pontiac, MI 48341
Mr. Andrew A. Nickelhoff Nickelhoff & Widick 333 W. Fort Street Suite 1400 Detroit, MI 48226

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-1 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g4e9: 3 Page 3 of 27(3 of 27)

Mr. Steven M. Potter Potter, DeAgostino, Campbell & O'Dea 2701 Cambridge Court Suite 223 Auburn Hills, MI 48326-0000
Ms. Alexandria Twinem Civil Rights Corps 1600 Connecticut Avenue, N.W. Eighth Floor Washington, DC 20009
Samuel Weiss Rights Behind Bars 416 Florida Aveue, N.W. Unit 26152 Washington, DC 20001
Re: Case No. 20-1469, Jamaal Cameron, et al v. Michael Bouchard, et al Originating Case No. : 2:20-cv-10949
Dear Counsel,
The Court issued the enclosed opinion today in this case.
Sincerely yours,

cc: Mr. David J. Weaver Enclosure Mandate to issue

s/Cathryn Lovely Opinions Deputy

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g5e0: 1 Page 4 of 27(4 of 27)

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0394n.06

No. 20-1469

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED
Jul 09, 2020

DEBORAH S. HUNT, Clerk

JAMAAL CAMERON, et al., Plaintiffs-Appellees,
v. MICHAEL BOUCHARD, et al.,
Defendants-Appellants.

)

)

)

ON APPEAL FROM THE

)

UNITED STATES DISTRICT

)

COURT FOR THE EASTERN

)

DISTRICT OF MICHIGAN

)

)

OPINION

)

BEFORE: COLE, Chief Judge; BUSH and LARSEN, Circuit Judges
JOHN K. BUSH, Circuit Judge. Plaintiffs, five pretrial detainees or convicted prisoners
housed in the Oakland County, Michigan Jail, filed a complaint under 42 U.S.C. § 1983 and
28 U.S.C. § 2241, on behalf of themselves and others housed or to be housed there. They claimed,
among other things, that Defendants’ “deliberate indifference” to the substantial risk of harm posed
by COVID-19 at the Jail violated their rights under the Eighth and Fourteenth Amendments. On
May 21, the district court granted a preliminary injunction against Defendants. The preliminary
injunction orders Defendants to:
1. Provide each incarcerated person, free of charge, on a bi-weekly basis, two bars of individual hand soap and a hand towel to allow regular hand washing and drying. Provide unrestricted access to additional hand soap upon an inmate’s request;
2. Provide each cell and each dormitory-style housing unit, at no cost, a supply of disinfectant hand wipes or disinfectant products effective against the COVID-19 virus for daily cleanings. Any disinfectant products shall be provided at the manufacturer’s required concentration level and in sufficient quantities for inmates to clean and disinfect the floor and all surfaces of their housing unit;

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g5e1: 2 Page 5 of 27(5 of 27)
No. 20-1469, Cameron, et al. v. Bouchard, et al.
3. Provide daily access to cleaning supplies at no cost for inmates to clean their cells, including showers, toilets, telephones, and sinks. Supplies shall be disinfected before being shared between housing cells;
4. Require cleaning of any surface or area shared by four (4) or more inmates, for example tabletops, telephones, door handles, television controls, equipment, and restroom fixtures. Surfaces and areas shall be cleaned every hour from 7 a.m. to 10 p.m. with bleach-based cleaning agents;
5. Establish a protocol for monitoring and supervising the regular sanitization of housing units, common areas, and surfaces. Provide guidance to correctional staff to provide them with the knowledge needed to oversee and assure that cleaning is adequate and effective. Within five (5) business days of this Order, Defendants shall submit a certified report to the Court identifying the procedures implemented to carry out these directives;
6. Provide access to clean showers and clean laundry, including clean personal towels on a regular basis, but at a minimum on a bi-weekly basis;
7. Provide masks for all inmates and staff members. If cotton masks are provided, such masks must be laundered regularly. Users must be instructed on how to use the mask and the reasons for its use;
8. Require all Jail staff to wear personal protective equipment, including masks and gloves, when interacting with any person, distributing items to prisoners (e.g., mail and hygiene supplies), or when touching surfaces in cells or common areas;
9. Ensure, to the fullest extent possible, that all Jail staff wash their hands with soap and water or use hand sanitizer containing at least 60% alcohol both before and after touching any person or any surface in cells or common areas. Consider allowing staff to carry individual sized bottles of the referenced hand sanitizer while on duty;
10. Maintain a protocol through which an incarcerated person may self-report symptoms of COVID-19 infection and to evaluate those symptoms, including temperature monitoring;
11. Within three (3) business days, provide the Court and Plaintiffs with a detailed plan to continue testing all inmates for COVID-19, prioritizing members of the MedicallyVulnerable Subclass, as well as a plan to test all individuals who (i) have access to the housing units or (ii) interact with inmates or with individuals who have access to the housing units;
12. Conduct immediate testing for anyone displaying known symptoms of COVID-19 and submit a weekly list to the Court and Plaintiffs’ counsel indicating (i) the number of tests performed that week and (ii) whether any inmates or Jail staff have tested positive for coronavirus;
13. Provide adequate spacing of six feet or more between people incarcerated, to the maximum extent possible, so that social distancing can be accomplished;
14. Ensure that individuals identified as having COVID-19, with symptoms of COVID-19, or having been exposed to COVID-19 receive adequate medical care and are properly quarantined in a non-punitive setting, with continued access to showers, mental health services, reading materials, phone and video calling with loved ones, communications with counsel, and personal property (to the extent reasonable and necessary to the inmate’s
2

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g5e2: 3 Page 6 of 27(6 of 27)
No. 20-1469, Cameron, et al. v. Bouchard, et al.
physical and mental well-being). Such individuals shall remain in quarantine and wear face masks and gloves when interacting with other individuals until they are no longer at risk of infecting other people. Facemasks must be replaced at medically appropriate intervals;
15. Respond to all COVID-19 related emergencies (as defined by the medical community) within an hour;
16. Post signage and information in common areas that provide: (i) general updates and information about the COVID-19 pandemic; (ii) information on how inmates can protect themselves from contracting COVID-19; and (iii) instructions on how to properly wash hands. Among other locations, all signage must be posted in every housing area and above every sink. Require staff to provide this information orally to low literacy and non-English speaking people;
17. Train all staff regarding measures to identify inmates with COVID-19, measures to reduce transmission, and the Jail’s policies and procedures during this crisis (including those measures contained in this Order);
18. Suspend co-pays for medical treatment for the duration of the pandemic and encourage all inmates to seek treatment if they are feeling ill;
19. Waive all charges for medical grievances during the pandemic until further order of the Court;
20. Within five (5) business days of this Order, establish and put into effect a policy suspending, to the extent possible, the use of multi-person cells (i.e., with more than two individuals), except where: (i) the person is currently under quarantine, or (ii) a person for whom a medical or mental health professional has documented that particular housing is needed. All housing units utilized shall be configured to permit social distancing, to the maximum extent possible. If dormitory-style housing must be utilized, those areas shall be reconfigured to allow six-feet between inmate beds to the maximum extent possible. Defendants shall submit a report to the Court and Plaintiffs’ counsel within seven (7) business days detailing (i) the policy put into effect, (ii) the housing cells occupied, and (iii) the number of inmates in each cell, similar to the Housing Occupancy List introduced at the evidentiary hearing. Defendants shall submit updated reports as to (i) and (ii) on a weekly basis;
21. Ensure that Plaintiffs’ counsel have the ability to promptly communicate with detainees;
22. Within three (3) business days, provide the Court and Plaintiffs’ counsel with a list of the members of the Medically-Vulnerable Subclass, which includes inmate identification numbers, ages, any health vulnerabilities, as well as records detailing the instant charges or convictions and any criminal history of the Subclass member. The purpose of this order is to enable the Court to implement a system for considering the release on bond or other alternatives to detention in the Jail for each subclass member. After reviewing the list, the Court will issue a schedule for Defendants to submit the following additional information for each Subclass member: (i) their position on whether the individual should be released on bond; (ii) the reasons why they maintain the individual should not be released; and (iii) what conditions should be put into place if bond is granted.
3

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g5e3: 4 Page 7 of 27(7 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al.
On May 26, we denied Defendants’ motion to stay the preliminary injunction pending appeal. Cameron, et al. v. Bouchard, et al., No. 20-1469 (6th Cir. May 26, 2020) (order denying motion to stay). On May 31, the district court entered an order that began the process for granting bail for members of the medically vulnerable subclass. This order was consistent with the preliminary injunction, the purpose of which was to “enable the Court to implement a system for considering the release on bond or other alternatives to detention in the Jail for each subclass member.” (R. 94 at PageID 3063). On June 1, the district court identified fifty inmates under consideration for release and instructed Plaintiffs to submit bail applications on behalf of any of the fifty inmates.
On June 5, Defendants filed a renewed emergency motion to stay the district court’s preliminary injunction, arguing that intervening changes in the law warranted a reconsideration of our initial denial of their motion. We agreed with Defendants and granted their renewed emergency motion to stay in light of our recent decision to vacate a district court’s preliminary injunction in very similar circumstances in Wilson, et al. v. Williams, et al., --- F.3d ---, ---, 2020 WL 3056217, at *12 (6th Cir. June 9, 2020). See Cameron, et al. v. Bouchard, et al., --- F. App’x ---, 2020 WL 3100187 (6th Cir. May 11, 2020) (granting stay pending appeal).
We now review the appeal of the preliminary junction on the merits. For the reasons discussed below, we VACATE the district court’s May 21, 2020 preliminary injunction.
I. “A district court must balance four factors in determining whether to grant a preliminary injunction: ‘(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction.’” Am. Civil Liberties Union Fund of Mich. v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015) (quoting Bays v. City of Fairborn, 668 F.3d 814, 818–19 (6th Cir. 2012)).
4

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g5e4: 5 Page 8 of 27(8 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al.
These factors “are to be balanced against each other.” Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). However, “the likelihood of success on the merits often will be the determinative factor.” Liberty Coins, LLC v. Goodman, 748 F.3d 682, 689 (6th Cir. 2014) (quoting Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012)).
“[T]he party seeking a preliminary injunction bears the burden of justifying such relief.” Livingston Cty., 796 F.3d at 642 (quoting McNeilly v. Land, 683 F.3d 611, 615 (6th Cir. 2012)). “A movant’s likelihood of success on the merits is a question of law reviewed de novo, but we review for abuse of discretion the district court’s ultimate conclusion as to whether the preliminary injunction factors weigh in favor of granting or denying preliminary injunctive relief.” Wilson, No. 20-3447, 2020 WL 3056217, at *4 (citing Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011)).
II. Central to this appeal is the inmates’ likelihood of success on their Eighth and Fourteenth Amendment claims.1 The Supreme Court has long recognized that the government has a constitutional obligation to “provide humane conditions of confinement.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations omitted). As part of this duty, officials must “take reasonable measures to guarantee the safety of the inmates.” Id. (quoting Hudson v. Palmer, 468 U.S. 517, 526–527 (1984)). For prisoners incarcerated following a conviction, the government’s obligation arises out of the Eighth Amendment’s prohibition on cruel and unusual punishment. See Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th Cir. 2013). For pretrial detainees, the obligation arises out of the Due Process Clause of the Fifth or Fourteenth Amendment. See id.
1 Defendants make several threshold arguments. They assert that Plaintiffs’ claims are barred because they failed to exhaust them and they have not satisfied the requirements of the PLRA. They also argue that Plaintiffs have not presented a cognizable habeas claim. This latter argument is inconsistent with our recent decision in Wilson. See Wilson, 2020 WL 3056217, at *5–6. And because we conclude that Plaintiffs’ claims fail on the merits, we decline to address the non-jurisdictional procedural questions. See Hanna v. Ishee, 694 F.3d 596, 610 (6th Cir. 2012); see also Kramer v. Wilkinson, 302 F. App’x 396, 398 (6th Cir. 2008).
5

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g5e5: 6 Page 9 of 27(9 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al.
Conditions-of-confinement claims are assessed under the “deliberate indifference” framework. See id. This framework requires plaintiffs to meet two requirements. The first is “objective[],” and it requires the inmate to “show that he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 833 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). The second is “subjective,” and it requires the inmate to “show that the official being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and then disregarded that risk.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (citing Farmer, 511 U.S. at 837). The official must have a subjective “state of mind more blameworthy than negligence,” akin to criminal recklessness. Farmer, 511 U.S. at 835, 839–40.
Plaintiffs and their amici argue that we should adopt a new standard for pretrial detainees in light of Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015). In that case, the Supreme Court held that in the excessive force context, it is inappropriate to apply the same mental culpability requirement to pretrial detainees as to convicted prisoners. Id. at 2473. Instead, an officer’s state of mind in an excessive force claim brought under the Fourteenth Amendment must be assessed using an objective standard, unlike the analysis for an excessive force claim brought under the Eighth Amendment. The touchstone of the Kingsley test is whether the official’s actions were “objectively unreasonable.” Id.
Since Kingsley, the circuits have split on whether deliberate indifference claims arising under the Fourteenth Amendment are still governed by Farmer (requiring a subjective inquiry for an officer’s state of mind), or instead are governed by Kingsley (requiring an objective inquiry for an officer’s state of mind). Compare Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (en banc) (adopting a new objective standard for deliberate indifference claims brought by pretrial detainees); Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) (same); Miranda v. Cty. of Lake, 900 F.3d 335, 351–52 (7th Cir. 2018) (same) with Alderson v. Concordia Parish Corr.
6

Case 2:20-cv-C10a9s4e9: -2L0V-1P4-M69JH DEoCcFumNeon. t1: 4713-2filedF0ile7d/0:90/72/009/2P0a2g0eID.P36a5g6e: 7Page 10 of 2(170 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al.
Facility, 848 F.3d 415, 419 n. 4 (5th Cir. 2017) (declining to reconsider its earlier precedent treating Eighth and Fourteenth Amendment claims alike); Whitney v. City of St. Louis, 887 F.3d 857, 860 n.4 (8th Cir. 2018) (same); Nam Dang by and through Vina Dang v. Sheriff, Seminole Cty. Florida, 871 F.3d 1272, 1279 n.2 (11th Cir. 2017) (same). We have not ruled on the issue. See Richardson v. Huq, 885 F.3d 928, 938 n.3 (6th Cir. 2018) (declining to address the issue because it was not raised by either party).
We need not resolve the issue today, because no matter the approach we adopt, the outcome is the same. Even if the pretrial detainees do not need to introduce evidence of subjective recklessness in light of Kingsley, they acknowledge that they still must prove something more than that the Defendants acted unreasonably. A “claim for a violation of due process requires proof of a mens rea greater than mere negligence.” Darnell v. Pineiro, 849 F.3d 17, 36 (2d Cir. 2017) (citing Kingsley, 135 S. Ct. at 2472). The test they propose would still require either “something akin to reckless disregard,” see Castro, 833 F.3d at 1071, or that they “knew or should have known” of the risk and nonetheless “recklessly failed to act”, see Darnell, 849 F.3d at 35. See also Miranda, 900 F.3d at 533 (requiring proof that officials acted “purposefully, knowingly, or perhaps even recklessly”). The evidence Plaintiffs presented is insufficient to demonstrate that the jail officials acted with reckless disregard to the serious risk COVID-19 poses. Indeed, the steps that jail officials took to prevent the spread of COVID-19 were reasonable. Such steps include: distributing a memo to the Jail staff about proper cleaning procedures intended to limit the spread within the Jail; stopping all visitation; initiating new arrest screenings for COVID-19; initiating a prison release program, in which 110 inmates were released by Michigan state courts; quarantining new arrestees for 14 days; quarantining any inmate experiencing symptoms of COVID-19 and any inmate who had contact with a symptomatic inmate; checking inmates who were in symptomatic quarantine three times a day with a full set of vitals including a temperature check; placing inmates
7

Case 2:20-cv-C10a9s4e9: -2L0V-1P4-M69JH DEoCcFumNeon. t1: 4713-2filedF0ile7d/0:90/72/009/2P0a2g0eID.P36a5g7e: 8Page 11 of 2(171 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al.
that tested positive in the positive COVID-19 cells; offering level-one masks and medical treatment to all inmates; cancelling group activities; using prepackaged meals for food service; using a UVI disinfecting machine and sanitizing cells more frequently; giving all inmates access to a disinfectant called DMQ, which is effective against COVID-19; promoting social distancing by reducing cell numbers depending upon inmate classification; and providing access to COVID19 testing to the entire inmate population.
These steps are very similar to the steps taken by the officials in Wilson. There, federal prisoners housed in the Elkton Federal Correctional Institution in Ohio filed a petition under 28 U.S.C. § 2241 to obtain release from custody to limit their exposure to the COVID-19 virus. Wilson, 2020 WL 3056217, at *1. They sought to represent all current and future inmates, including a subclass of inmates who—because of age and/or certain medical conditions—were particularly vulnerable to complications, including death, if they contracted COVID-19. Id. On April 22, the district court entered a preliminary injunction much like the one entered here, requiring the Federal Bureau of Prisons (“BOP”) to, among other things, identify members of the medically vulnerable subclass and evaluate their eligibility for transfer out of confinement at Elkton. Id.
Justice Sotomayor granted a stay of the preliminary injunction pending appeal to our court. See Williams, et al. v. Wilson, et al., No. 19A1047, 2020 WL 2988458 (Mem) (June 4, 2020). On appeal, we vacated the preliminary injunction, holding that petitioners had not shown a likelihood of success on the merits of their Eighth Amendment claim, because they had not satisfied the subjective component of the deliberate indifference inquiry. Wilson, --- F.3d ---, ---, 2020 WL 3056217, at *12. Fatal to Plaintiffs’ claim was the fact that the BOP “responded reasonably” to the risks presented by COVID-19. Id. at *7. The BOP’s actions to control the virus included:
[I]mplement[ing] measures to screen inmates for the virus; isolat[ing] and quarantin[ing] inmates who may have contracted the virus; limit[ing] inmates’ movement from their residential areas and otherwise limit[ing] group gatherings;
8

Case 2:20-cv-C10a9s4e9: -2L0V-1P4-M69JH DEoCcFumNeon. t1: 4713-2filedF0ile7d/0:90/72/009/2P0a2g0eID.P36a5g8e: 9Page 12 of 2(172 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al.
conduct[ing] testing in accordance with CDC guidance; limit[ing] staff and visitors and subject[ing] them to enhanced screening; clean[ing] common areas and giv[ing] inmates disinfectant to clean their cells; provid[ing] inmates continuous access to sinks, water, and soap; educat[ing] staff and inmates about ways to avoid contracting and transmitting the virus; and provid[ing] masks to inmates and various other personal protective equipment to staff. Id. at *8. Given the similarity of the BOP’s response in Wilson and Defendants’ response here, Wilson controls the outcome of this case, even if Farmer’s subjective component does not apply to Plaintiffs’ Fourteenth Amendment claims.
III. Plaintiffs identify several factors that they believe distinguish this case from Wilson. Plaintiffs claim that the jail officials adopted preventative measures only as a response to this lawsuit and later, after the court-ordered inspection, discontinued them. Plaintiffs claim, for instance, that (1) the jail continues to fail to disinfect common spaces between each use, (2) after the inspection, inmates continued to receive insufficient soap, and (3) officers do not ordinarily wear masks, even though they did so during the inspection. To the extent plaintiffs ask us to consider conduct occurring after entry of the preliminary injunction, we cannot. See Wilson, 2020 WL 3056217, at *1 (“Our task . . . is to review the record that was before the district court at the time the preliminary injunction was entered.” (quoting Johnson v. City of Memphis, 444 F. App’x 856, 860 n.2 (6th Cir. 2011))). In addition, plaintiffs’ argument at most shows that defendants’ response was imperfect. That is not enough to establish deliberate indifference. See id. at *10 (“Here, even if the BOP’s response has been inadequate, it has not disregarded a known risk or failed to take any steps to address the risk, . . . such that its response falls below the constitutional minimum set by the Eighth Amendment.”). Next, Plaintiffs claim that Defendants acted with deliberate indifference in continuing to house nearly half of the jail’s population in multi-person cells after Defendants were aware of the
9

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g5e9: 10Page 13 of 2(173 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al.
risk of COVID-19, even though many of the jail’s cells remain empty. Defendants attribute the empty cells to “security, classification and mental health concerns.” Appellants’ Br. at 56. The district court made no factual finding, and Plaintiffs have produced no evidence, as to whether it would be feasible to occupy those empty cells with inmates, given the jail’s security and mental health concerns. Given the lack of evidence as to whether the empty cells could be safely occupied, Plaintiffs have not satisfied their burden of showing that officials have left these cells empty out of an objectively (or subjectively) reckless disregard of the risks of COVID-19. See Libertarian Party of Ohio v. Husted, 751 F.3d 403, 420–21 (6th Cir. 2014) (affirming the denial of a preliminary injunction because the plaintiffs produced “scant evidence” for their claim). Even if those empty cells could be occupied, that Defendants quarantine any inmate exposed to COVID19 is strong evidence that they are responding reasonably to the risk posed by the virus.
Plaintiffs also claim that the jail intentionally transferred inmates from the east annex, where there were “no COVID-19 cases,” to the main jail, where there were “multiple cases of the virus.” Appellants’ Br. at 35. For example, the district court found that Plaintiffs Cameron and Lee were relocated from the east annex to the main jail after they refused to prepare and/or serve food in the kitchen. However, as the district court noted, housing at the east annex is a “privilege,” and pursuant to jail policy, violation of the rules results in transfer to other portions of the jail. The jail made this policy clear to inmates—signs were posted in the east annex informing inmates that they would be sent to the main jail if they refused to do their assigned work. It thus appears that Plaintiffs Cameron and Lee were transferred because they refused to perform their kitchen duties.2
2 Plaintiffs claim that inmate Jason Arsineau was required to continue serving food despite showing symptoms of COVID-19. Mr. Arsineau, however, admits that his “temperature was not particularly high,” so the prison officials may have reasonably believed that he did not have COVID-19. And Mr. Arsineau did stop serving food after a few days, and he was consequently removed from his kitchen duties. (Id. at PageID 405). Plaintiffs also claim that inmate Richard Briggs was threatened with transfer to a crowded cell with a concrete floor and no beds, because he requested a grievance to complain about not being tested for COVID-19. But the record does not convince us that Defendants’ treatment towards Mr. Briggs constituted deliberate indifference. Mr. Briggs’ own declaration
10

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g6e0: 11Page 14 of 2(174 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al.
Plaintiffs produced no evidence even tending to show that this adherence to the jail’s ordinary policy caused any inmate to be put at risk. For example, Plaintiffs produced no evidence that any inmate who had not tested positive for COVID-19 was transferred to a cell containing inmates who had tested positive for COVID-19. Nor do Plaintiffs allege that the transfers resulted in any inmate testing positive for COVID-19. Thus, the jail’s inmate transfer system also does not distinguish this case from Wilson or otherwise demonstrate that the prison officials acted with deliberate indifference.
Finally, Plaintiffs claim that Defendants’ quarantine procedure was insufficient, and they raise Mr. Watkins’ story as evidence. Mr. Watkins was housed in a one-person cell (A-4) from April 16 to May 6. On May 6, he was tested for COVID-19, and later that day, he was reassigned to a different cell (C-Block) with seven other inmates. Two days later, he was informed that he was COVID-19 positive. As a result of Mr. Watkins’ positive status, the entire row of cells associated with his A-4 cell was quarantined. However, we do not know whether Mr. Watkins’ C-Block cell was quarantined. Plaintiffs and the district court treat Defendants’ failure to produce evidence showing that the C-Block cell was quarantined as itself evidence of deliberate indifference. But Plaintiffs and the district court incorrectly put the burden on Defendants to produce evidence that they were not deliberately indifferent. The burden is instead on Plaintiffs to produce evidence that Defendants were deliberately indifferent and that Plaintiffs are entitled to a preliminary injunction. Livingston Cty., 796 F.3d at 642. Plaintiffs have produced no evidence
states that when he “began to feel extremely ill,” he “asked a guard to send a nurse.” (R. 5-4 at PageID 379). He stated that “the nurse came [and] she took my temperature . . . [and] [b]ecause my temperature was below 100 degrees, she put me back in the cell and told me I was not suffering from COVID-19 and would not be tested.” (Id.). Yet again, Mr. Briggs asked the guard to send a nurse. Consistent with Mr. Briggs’ request, “[a]nother nurse came and told me the same thing.” (Id.). And Mr. Briggs was eventually tested for COVID-19, about a month after he requested a test. We cannot say that Defendants’ response to Mr. Briggs constituted deliberate indifference, when jail officials sent nurses to Mr. Briggs to check his condition both times he requested, and when Plaintiffs presented no evidence as to whether it would have been feasible, given the shortage of testing kits, to test Mr. Briggs for COVID-19 earlier.
11

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g6e1: 12Page 15 of 2(175 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al.
showing that the C-Block cell was not quarantined after Mr. Watkins tested positive. Further, the affirmative steps prison officials did take in response to Mr. Watkins’ positive test results strongly rebut Plaintiffs’ contention that Defendants acted with reckless disregard to the risk of the virus’s spread. Their argument that Defendants’ quarantine procedure was insufficient is thus meritless.3
IV. Given our decision in Wilson, a case that is binding on us, we agree with Defendants that Plaintiffs are unlikely to succeed on the merits of their Eighth and Fourteenth Amendment claims. “[W]hile the harm imposed by COVID-19 on inmates at [the Jail] ‘ultimately [may] not [be] averted,’ [Defendants have] ‘responded reasonably to the risk’ and therefore ha[ve] [likely] not been deliberately indifferent to the inmates’ Eighth Amendment rights.” Id. (citing Farmer v. Brennan, 511 U.S. 825, 844 (1994)). The same can be said under the Due Process Clause of the Fourteenth Amendment. Our conclusion that Plaintiffs are unlikely to succeed on the merits challenge is dispositive, because “[o]ur cases warn that a court must not issue a preliminary injunction where the movant presents no likelihood of merits success.” Id. at *11 (quoting Daunt v. Benson, 956 F.3d 396, 421–22 (6th Cir. 2020)). We thus VACATE the district court’s May 21, 2020 preliminary injunction.
3 The dissent points to other alleged circumstances as evidence of the jail’s insufficient quarantine procedure: (1) Defendant Lee stated he and others were moved into a vacated cell that had been recently quarantined and had not been cleaned; (2) inmate Saunders claims he was quarantined for only four days with suspected COVID-19 symptoms; (3) inmate Hutson complains of being housed in a cell where he cannot adequately socially distance; and (4) inmate Kucharski says he had to wait four days after first reporting his COVID-19 symptoms to receive medical attention, he continued to work in the jail’s kitchen as he waited, and he was not quarantined when he began experiencing COVID19 symptoms. The district court made no determination as to accuracy of these allegations, so they are not before us as part of the district court’s factual findings in support of the preliminary injunction. But, even assuming their truth, while these allegations may tend to show that the jail’s response has been imperfect, we are not convinced that they are enough to establish deliberate indifference. See Wilson, 2020 WL 3056217, at *10.
12

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g6e2: 13Page 16 of 2(176 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al.
COLE, Chief Judge, dissenting. The plaintiffs and defendants paint vastly different pictures of the adequacy of the defendants’ response to the COVID-19 pandemic at the Oakland County Jail. In making their respective cases before the district court, the parties developed an extensive factual record. The court then fulfilled its responsibility to consider carefully the evidence to make factual determinations when it held a three-day hearing, considered numerous declarations and exhibits submitted by the parties, and made credibility determinations to weigh the evidence before it.
Relying on its factual findings, the district court issued the preliminary injunction we review today. It is not generally the role of an appellate court to resolve the discrepancies in the parties’ factual accounts; that is the district court’s job. We also do not re-weigh the evidence. To me, the district court’s findings, which we adopt absent clear error, show serious deficiencies on the part of the defendants in responding to the COVD-19 pandemic. I therefore depart from the majority and would find that the plaintiffs have demonstrated a likelihood of success on the merits of their claims. As such, I respectfully dissent.
I. A. Our review here is complicated by the fact that the plaintiff class includes both those incarcerated pursuant to convictions and pretrial detainees who await trial on charges that the government has not yet proven. As the majority acknowledges, the question of how to analyze the pretrial detainees’ Fourteenth Amendment claims—specifically whether they include a deliberate indifference element—is an open one after the Supreme Court’s decision in Kingsley v. Hendrickson, where the Supreme Court held that it was inappropriate to apply the same mental culpability requirement to excessive force claims brought by pretrial detainees as the one applied
13

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g6e3: 14Page 17 of 2(177 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al.
in those brought by convicted inmates. See 135 S. Ct. 2466, 2473 (2015). The majority assumes, for purposes of this case, that pretrial detainees do not need to prove a subjective component and says that it is proceeding under the Ninth Circuit’s approach of requiring such plaintiffs to prove only “objective recklessness” on the part of jail officials. See Castro v. Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc).
The Ninth Circuit explained that the “objective recklessness” standard requires plaintiffs to prove that “[t]he defendant did not take reasonable available measures to abate [a substantial risk of harm facing the plaintiff], even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious.” Id. By contrast, plaintiffs seeking vindication of their Eighth Amendment right against cruel and unusual punishment face a steeper climb and must prove that a defendant “knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Despite the majority’s representation that it is applying the Castro Fourteenth Amendment standard for purposes of this case, however, it in effect still holds all plaintiffs to the Eighth Amendment’s deliberate indifference standard. We know this to be true because the majority cites a single case to support its analysis of the plaintiffs’ constitutional claims: our recent decision in Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020). That case was brought by prisoners at a federal prison, none of whom were pretrial detainees. Id. at 832–33. As their claims all arose under the Eighth Amendment, we applied the Eighth Amendment test, and, indeed, our decision turned on the prisoners’ ability to prove deliberate indifference under the subjective prong. Id. at 840–44. Our consideration of this Fourteenth Amendment claim should not be bound by a case where we used an Eighth Amendment analysis.
14

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g6e4: 15Page 18 of 2(178 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al.
For today’s purposes, though, I will not further explore the issue of the proper standard for reviewing Fourteenth Amendment claims of pretrial detainees, as I conclude that the plaintiffs are likely to succeed on the merits even under the more-stringent Eighth Amendment review that all parties agree applies to the claims of the convicted inmates at the jail.
B. The preliminary injunction before us today requires the defendants to take basic steps to ensure the safety of those housed at the jail.4 Our review of preliminary injunctions like the one before us today is “highly deferential.” Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011) (internal citation omitted). We do not vacate a preliminary injunction unless the district court abused its discretion in granting the injunction. Id. Courts consider four factors in weighing the propriety of a preliminary injunction: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction. Pontiac Ret. Emp’s Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (per curiam). The majority correctly observes that the plaintiffs’ likelihood of success on the merits is the most important of these four factors. See Obama for America v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (quoting Jones v. Caruso, 569 F.3d 258, 267 (6th Cir. 2009)).
4 Despite the defendants’ repeated assertions in their brief and at oral argument, we are not considering a “prisoner release order.” See, e.g., Defendant Br. at 37. These statements by the defendants flatly misrepresent the district court’s order, which does not order the release of a single inmate or pretrial detainee. I am likewise unpersuaded by the defendants’ hyperbolic assertion that, by entering a preliminary injunction in a case where the plaintiffs raised federal constitutional claims, the district court turned “decades or [sic] precedent regarding federalism and comity on its head.” Defendant Br. 20. The majority wisely declines to credit these defendants’ attempts to recast the district court’s order on appeal.
15

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g6e5: 16Page 19 of 2(179 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al.
To determine the likelihood of success on the merits, we apply this factual record to the standards governing the plaintiffs’ claims. In doing so, we credit the district court’s factual findings unless we find that the district court clearly erred in making them. See Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 625 (6th Cir. 2016). This means that we “abide by the court’s findings of fact unless the record leaves us with the definite and firm conviction that a mistake has been committed.” Id. (internal citation and quotation marks omitted). The majority does not undertake an analysis of whether the district court erred in its weighing of the record, but nonetheless declines to fully credit the factual findings adopted by the district court. I see this as a departure from our role as an appellate court, and I cannot join the majority in adopting the defendants’ interpretation of the record in lieu of the district court’s, as I do not independently conclude that the district court clearly erred in making its factual findings.
C. The Eighth Amendment prohibits the incarceration of a prisoner “under conditions posing a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). By incarcerating prisoners against their will, the government “assume[s] some responsibility for [their] safety and general well-being.” Helling, 509 U.S. at 32 (quoting DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199–200 (1989)). This is so because the government restrains prisoners’ liberties such that they cannot care for themselves, and the government must therefore be responsible for providing for basic human needs such as a reasonable degree of safety. Id. An Eighth Amendment claim consists of two elements, an objective and a subjective component. The objective component requires that the deprivation at issue must be “objectively, sufficiently serious.” Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298)
16

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g6e6: 17Page 20 of 2(270 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al. (internal quotation marks omitted). The subjective component demands proof that the prison official has a “sufficiently culpable state of mind,” meaning that the official is deliberately indifferent to the prisoner’s health or safety. Id. (internal citations and quotation marks omitted). II. The majority finds that the plaintiffs cannot demonstrate a likelihood of success on the merits largely based on our decision in Wilson. I remain unconvinced that Wilson properly adjudicated the claims before it. See Wilson, 961 F.3d at 845–50 (Cole, C.J., dissenting in part). But I do not dissent from today’s decision because I think Wilson was wrongly decided; I recognize that it carries the same precedential value of any published decision of our court. Rather, I conclude that the decision does not stretch so far as to foreclose a constitutional claim based on the record before us today, both because the record contains evidence adverse to the defendants that was not present in Wilson and because the evidence in favor of the defendants that appears at first glance to be similar to that which we credited in Wilson suffers from serious reliability issues. A. To confirm that the defendants knew of the risk posed by the pandemic, we need only look to its actions leading up to the court-ordered April 23 inspection of the jail by Dr. Carlos FrancoParedes. The defendants posted signs with methods to prevent the spread of COVID-19 the day before Dr. Franco-Paredes arrived for his inspection, while at the same time removing other signs threatening to transfer inmates who declined work detail to the main jail, where COVID-19 was spreading. (R. 93, PageID 3008–09; R. 56, PageID 1482–83.) It was similarly on the eve of that inspection that the jail finally distributed individual cleaning supplies to the inmates. (R. 93,
17

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g6e7: 18Page 21 of 2(271 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al.
PageID 3009.) During the inspection, jail officials wore masks. (R. 93, PageID 3010; R. 48, PageID 1428.)
Donald Wallace Chandler, a jail inmate, testified, however, that some jail officials do not continue to wear masks on a day-to-day basis. (R. 48, PageID 1428.) Elizah Sheppard, another inmate, explained that since signs about COVID-19 practices were posted, a sign fell off the wall, and was destroyed and not replaced by jail officials. (R. 49, PageID 1432.) She further testified that “the deputies continue to tell us that nothing is wrong.” (Id.)
Considering that the jail appeared to change its operations after this case was filed and just before the district court’s inspector arrived, only to revert back to a more indifferent approach to the virus after the inspector left, I am left with a difficult question: are the defendants more interested in keeping the inmates in their care safe or in convincing courts that they are doing so? When I consider other factual findings regarding the punishment of inmates, I fear that it is the latter.
By far the most troubling of the district court’s findings are the ones concerning the transfer of inmates to areas of the jail where the virus was more prevalent. Raj Lee was housed in the annex to the jail where he worked as a trustee tasked with cleaning the jail. (R. 5-5, PageID 383.) He explained that, on April 9, 2020, his supervisor told him that he would have to begin serving food to the entire jail population or else be transferred to the main jail building. (Id., PageID 384.) The supervisor advised Lee that Lee would not want to go to the main building “because of the COVID-19 outbreak there.” (Id.) When Lee attempted to file a grievance about this interaction, he was transferred to the main jail, where he was then held in “the tanks.” (Id., PageID 385.) These tanks are small holding cells infested with bugs and rats where everyone sleeps on a concrete floor.
18

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g6e8: 19Page 22 of 2(272 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al.
(Id.) Lee’s cell was 12 feet by 15 feet, and he shared it with nine others, rendering any sort of social distancing impossible. (Id.)
Even more concerning is that Lee’s case does not appear to be an isolated incident. Jamaal Cameron similarly testified that when he raised safety concerns about his food-service job, his request to change to a different job was denied. (R. 56, PageID 1475.) But Cameron remained concerned about his safety, so he decided to stop serving food. As punishment, he was transferred to the main jail. (Id., PageID 1475–76.)
Another inmate, Richard Briggs, began to feel ill and reported his symptoms to jail nurses. Those nurses dismissed his concerns and doubted his symptoms instead of addressing them. (R. 5-4, PageID 379.) When he then asked a guard for a grievance form to complain about the lack of medical care he received, the guard “refused and asked [Briggs] if [he] wanted to be sent down to ‘the Tank.’” (Id.) After that threat, Briggs decided not to file a grievance but continued to suffer night chills, diarrhea, and loss of appetite. (Id.) He was never treated.
The district court found that the defendants had not rebutted any of these accounts, and that the plaintiffs’ witnesses were more credible than the defendants’ witnesses who defended the jail’s approach to the pandemic at the hearing. (R. 93, PageID 3038–39.) Nonetheless, the majority attempts to explain these transfers and threatened transfers as the mere mechanical application of the jail’s transfer policy, which considers being housed in an annex to be a privilege. Maj. Op. at 10. But issue is not the transfer inmates to a different part of the jail; it is the transfer of inmates to a part of the jail that not only already had a COVID-19 outbreak, but also has a near-perfect environment for the transmission of respiratory disease. The application of the policy here undoubtedly put inmates at risk. Again, Lee was transferred to a holding cell where he was held
19

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g6e9: 20Page 23 of 2(273 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al.
with nine other inmates in the area where infections from the virus had spread and where he had to sleep on the concrete floor which was crawling with bugs and rats.
The Eighth Amendment forbids punishment that is “barbarous” or does not accord with “evolving standards of decency that mark the progress of a maturing society.” Rhodes v. Chapman, 452 U.S. 337, 345–46 (1981). The Supreme Court has held that jail officials violate the Constitution when they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year.” Helling v. McKinney, 509 U.S. 25, 33 (1993). It is difficult to imagine conduct that would better fit this description than that of the defendants here. In the middle of a deadly, once-in-a-century pandemic where social distancing is recognized as the best method to prevent transmission of the virus, inmates should not be forced to sleep on a concrete floor with rats and bugs where they cannot practice even a modicum of social distancing. And given that the record suggests that Lee’s treatment is not an isolated event but rather constitutes a repeated practice, a preliminary injunction is warranted to prevent the jail from similarly placing other members of the plaintiff class at risk.
B. Wilson does not authorize any of the defendants’ conduct that I have discussed so far. That case was, after all, silent on whether controlling or punishing detainees by threatening them with exposure to the virus accords with the Eighth and Fourteenth Amendments. It similarly does not speak to the legal impact of jail officials’ deception of a court-ordered investigator. But even if I were to ignore those findings, it would be difficult to conclude that the measures that the majority cites as similar to those that were deemed constitutionally adequate in Wilson are actually occurring at the jail. Before going into those measures, recall the district court’s credibility assessment of the defendants’ witnesses who explained these purported measures at hearing:
20

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g7e0: 21Page 24 of 2(274 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al.
What the Court finds more significant when assessing credibility is that the bulk of Defendants’ evidence concerning the conditions in the Jail and what is being done to prevent the spread of coronavirus comes primarily from two individuals—one who admittedly spends “seldom” time in its housing areas and the other who had not been inside the housing areas for weeks before the evidentiary hearing. Nurse Warren and Captain Childs have painted a picture of those areas which is not based on their own knowledge and may not even be based on reality. Finally, the Courts finds it noteworthy that Defendants presented no expert testimony on the adequacy of their COVID-related policies or their implementation of those policies. (R. 93, PageID 3039.) I share the district court’s concern that the defendants’ assertions as to the measures that they are purportedly taking may not be based in reality. The majority notes that the defendants claim to have promoted social distancing by reducing cell numbers depending on inmate classification. Maj. Op. at 8. But, as it later concedes, the jail has kept some cells empty while leaving other inmates in multi-person cells where they cannot practice social distancing. Maj. Op. at 9. What is the reason for this seemingly irrational allocation of resources? The majority credits the assertion in the defendants’ appellate brief that these cells remain empty due to “security, classification, and mental health concerns.” Appellant Br. 56. The problem with accepting this explanation is that the defendants never persuaded the district court that it was plausible. In fact, the district court found that the defendants “offer[ed] no explanation regarding why individuals have not been moved to these available cells in order to maximize the distance between inmates.” (R. 93, PageID 3040–41.) As there are no grounds to conclude that the district court clearly erred in its finding that the defendants have provided no basis as to why they cannot increase social distancing by making use of the empty cells, I would consider that finding instead of substituting the defendants’ appellate explanation (offered without record support) for those failures. And at the very least, the defendants should not receive credit for emphasizing social distancing by reducing the inmate population when they have left the cells vacated by those
21

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g7e1: 22Page 25 of 2(275 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al.
departing the jail vacant even as the remaining inmates continue to be housed in multi-person cells or on concrete floors.
Furthermore, the majority discusses the district court’s finding that the jail’s quarantining process was incomplete following Richard Watkins’s positive test result. But even if we accept the majority’s dismissal of this evidence, it was far from the only evidence considered by the district court that supports the conclusion that the quarantining process was inadequate. For example, Lee stated that when one group of inmates was moved from a cell to be quarantined due to COVID-19 symptoms, he and others were moved into the vacated cell, which had not been cleaned following the departure of the quarantined inmates. (R. 5-5, PageID 385–86.) Another inmate, Matthew Saunders, was quarantined for four days in the medical unit with suspected COVID-19 symptoms, including a 103-degree fever, only to be returned to his assigned cell in the general population without being tested for the virus. (R. 5-8, PageID 399–400.) Finally, Antione Hutson’s declaration demonstrates that inmates are often housed in multi-person cells without regard for medical vulnerabilities that may place them at a greater risk should they contract the virus, resulting in him being housed in a cell where he cannot socially distance despite his StageIII cancer. (R. 46, PageID 1421–22.) In light of these examples, there is ample justification to conclude that the defendants’ quarantining procedures have been incomplete at best.
The district court also found that the medical care provided to inmates showing symptoms of the virus was not as thorough as the defendants suggest. Briggs’s account of nurses doubting his account of his condition shows that the defendants do not consistently take the threat of COVID-19 seriously, even when confronted with an inmate who is clearly displaying its symptoms. David Kucharski explained that a cellmate of his waited four days after first reporting his COVID symptoms to a nurse to actually receive medical attention, continuing to work in the
22

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g7e2: 23Page 26 of 2(276 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al.
jail’s kitchen even as he waited for assistance. (R. 5-7, PageID 395.) When Kucharski, who suffers from asthma, began experiencing symptoms himself, he was not quarantined, but instead given a seven-day supply of Tamiflu, an influenza medication, and told to take it if symptoms continued. (Id.)
In sum, the record reveals differences in degree and in kind between this case and Wilson. I find that by demonstrating that the defendants deployed transfers to COVID-infected areas punitively, temporarily adopted better practices only for purposes of passing inspection, repeatedly provided inadequate medical care, failed to consistently quarantine symptomatic inmates, and did not take advantage of opportunities for increased social distancing, the plaintiffs have shown that they are likely to succeed on the merits of their claims.
III. The majority, finding that the plaintiffs are not likely to succeed on the merits, does not address the remaining preliminary injunction factors. As I reach a different conclusion on the first factor, I proceed to the remaining ones. Each of these factors supports upholding the preliminary injunction. On the second and third factors, the plaintiffs show that they could suffer irreparable harm absent an injunction, while the defendants do not show that they will be harmed should the injunction remain in place. The plaintiffs, especially the medically vulnerable ones, could suffer grave illness or death if the defendants do not abide by the terms of the preliminary injunction. Meanwhile, the preliminary injunction only imposes upon the defendants a burden to take measures necessary to ensure the safety of the inmates housed at the jail. This may cost the defendants in terms of time and resources, but it does not irreparably harm them. See Sampson v. Murray, 415 U.S. 61, 90 (1974). As for the fourth factor, there is not a discernable public harm, as no inmates are being released pursuant to the preliminary injunction and the public interest is
23

Case 2:20-cvC-1a0s9e4:92-0L-V1P4-6M9JH DEocCuFmNeon.t:17431-2 filedFi0le7d/:0097/2/009/2P0a2g0eIDP.3a6g7e3: 24Page 27 of 2(277 of 27) No. 20-1469, Cameron, et al. v. Bouchard, et al. served by caring for the health and safety of detainees and the community in which they live. Further, “it is always in the public interest to prevent the violation of a party’s constitutional rights.” See G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994). IV. The record does not reflect that the district court clearly erred in making its factual findings. As such, the merits of this appeal should rise or fall on the application of the law to those findings, especially given our deferential abuse-of-discretion review of preliminary injunctions. I respectfully dissent because the record and factual findings before us should be fatal to the defendants’ challenge to the district court’s preliminary injunction.
24

 
 Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3705 Page 1 of 28

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs, v.

Case 2:20-cv-10949-LVP-MJH

MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; OAKLAND COUNTY, MICHIGAN,

Defendants. ______________________________________________________________________________

DEFENDANTS’ 12(B)(1) MOTION TO DISMISS

NOW COME Defendants, MICHAEL BOUCHARD and OAKLAND

COUNTY, by and through their attorneys, POTTER DeAGOSTINO O’DEA &

CLARK, and pursuant to Fed. R. Civ. P. 12(b)(1), hereby request the Court to

dismiss Plaintiffs’ Complaint with prejudice.

In accordance with E.D. Mich LR 7.1, counsel for Defendants contacted

Plaintiffs’ counsel regarding the nature of the instant motion and legal basis.

Counsel requested but did not obtain concurrence in the relief sought by the

motion.

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3706 Page 2 of 28

WHEREFORE, Defendants, MICHAEL BOUCHARD and OAKLAND COUNTY, respectfully request this Honorable Court to grant its Motion to Dismiss and dismiss Plaintiffs’ Complaint with prejudice.
POTTER, DeAGOSTINO, O’DEA & CLARK

Dated: August 19, 2020

s/ STEVEN M. POTTER (P33344) s/ ROBERT C. CLARK (P76359) s/ TREVOR S. POTTER (P84253) Attorneys for Defendants 2701 Cambridge Court, Suite 223 Auburn Hills, Michigan 48326 (248) 377-1700 spotter@potterlaw.com rclark@potterlaw.com tpotter@potterlaw.com

2

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3707 Page 3 of 28
BRIEF IN SUPPORT OF MOTION ISSUES PRESENTED
1. Whether Plaintiffs’ claims are moot and lack standing? Defendants Answer: Yes. Plaintiffs Answer: No.
2. Whether this Court lacks jurisdiction over Plaintiffs’ claims? Defendants Answer: Yes. Plaintiffs Answer: No.
3

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3708 Page 4 of 28
CONTROLLING AUTHORITY Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993) Baker v. Carr, 369 U.S. 186, 204 (1962) Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) Braden v. 30th Judicial Circuit Court of Com. of Ky., 454 F.2d 145, 148 (6th Cir. 1972) Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973) Cameron v. Bouchard, No. 20-1469, 2020 WL 3867393 (6th Cir. July 9, 2020) Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) Carras v. Williams, 807 F.2d 1286, 1289 (6th Cir. 1986) City of Heath, Ohio v. Ashland Oil, Inc., 834 F.Supp. 971, 975 (S.D. Ohio 1993) City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) Coal. for Gov't Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 458 (6th Cir. 2004) Daunt v. Benson, 956 F.3d 396, 421–22 (6th Cir. 2020) Dellis v. Corr. Corp. of Am., 257 F.3d 508, 512 (6th Cir. 2001) Ford v. Wilder, 469 F.3d 500, 504 (6th Cir. 2006) Forsythe v. Ohio, 333 F.2d 678 (6th Cir. 1964) Gentek Bldg Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007)
4

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3709 Page 5 of 28
Horn v. Husqvarna Consumer Outdoor Products N.A., Inc., No. 12-CV-567, 2013 WL 693119 (S.D. Ohio Feb. 26, 2013) In re: 2016 Primary Election, 836 F.3d 584, 588 (6th Cir. 2016) Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir.1996) Maryland Casualty Co. v. Pacific Co., 312 U.S. 270, 273 (1941) Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978) Morton v. Avery, 393 F.2d 138 (6th Cir. 1968) Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990) O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974) Pettrey v. Enter. Title Agency, Inc., 584 F.3d 701, 703 (6th Cir. 2009) Powell v. McCormack, 395 U.S. 486, 496 (1969) Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir. 1986) Rosen v. Tennessee Com'r of Fin. & Admin., 288 F.3d 918, 928 (6th Cir. 2002) Scruggs v. Henderson, 380 F.2d 981 (6th Cir. 1967) Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) Sumpter v. Wayne Cty., 868 F.3d 473, 490 (6th Cir. 2017) U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980) Warth v. Seldin, 422 U.S. 490, 501 (1975) Wayside Church v. Van Buren County, 847 F.3d 812, 816–17 (6th Cir. 2017) Wilson v. Williams, 961 F.3d 829, 843-45 (6th Cir. 2020)
5

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3710 Page 6 of 28
I. Procedural Background On April 17, 2020, Plaintiffs filed a 326-page Complaint asserting claims for
injunctive and declaratory relief, and a Petition for Habeas Corpus against Oakland County Defendants on behalf of inmates housed at the Oakland County Jail (“OCJ”). (ECF No. 1). On the same day, this Court entered a Temporary Restraining Order (TRO) against Oakland County Defendants. (ECF No. 12). Later that day, this Court amended its Order and stated that “the Court is accepting the allegations in Plaintiffs’ Complaint and its attachments as true without briefing or evidentiary submissions by Defendants.” (ECF No. 21). On May 21, 2020, this Court entered a Preliminary Injunction against Defendants containing twenty-two directives that served as the framework for a prisoner release directive at the Oakland County Jail. (ECF No. 94).
On June 11, 2020, the Sixth Circuit granted Defendants’ Renewed Emergency Motion to Stay the Preliminary Injunction pending resolution of Defendants’ appeal. (ECF No. 139). On July 9, 2020, the Sixth Circuit vacated this Court’s Preliminary Injunction and TRO and held that “[O]ur conclusion that Plaintiffs are unlikely to succeed on the merits challenge is dispositive, because [o]ur cases warn that a court must not issue a preliminary injunction where the movant presents no likelihood of merits success. Cameron v.
6

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3711 Page 7 of 28
Bouchard, No. 20-1469, 2020 WL 3867393, at *8 (6th Cir. July 9, 2020); Wilson v. Williams, 961 F.3d 829, 843-45 (6th Cir. 2020) (quoting Daunt v. Benson, 956 F.3d 396, 421–22 (6th Cir. 2020)).
II. Standard of Review Before a court may determine whether a plaintiff has failed to state a claim
upon which relief may be granted, it must first decide whether it has subject matter jurisdiction. City of Heath, Ohio v. Ashland Oil, Inc., 834 F.Supp. 971, 975 (S.D. Ohio 1993). Rule 12(b)(1) provides that the defendant may file a motion to dismiss based on a “lack of jurisdiction over the subject matter.” Fed. R. Civ. P. 12(b)(1).
The standard of review of a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction depends on whether the defendant makes a facial or factual challenge to subject matter jurisdiction. Wayside Church v. Van Buren County, 847 F.3d 812, 816–17 (6th Cir. 2017). A facial attack “questions merely the sufficiency of the pleading.” Gentek Bldg Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007) (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)), and requires the district court to “take[ ] the allegations in the complaint as true,” id. But a factual attack “raises a factual controversy requiring the district court to weigh the conflicting evidence to arrive at the factual predicate
7

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3712 Page 8 of 28
that subject-matter does or does not exist.” Wayside Church, 847 F.3d at 817 (quoting Gentek Bldg. Prods., Inc., 491 F.3d at 330). The plaintiff has the burden of proving jurisdiction when subject matter jurisdiction is challenged. Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir. 1986). The court may allow “affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts.” Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).
Complaints must state “more than a bare assertion of legal conclusions to survive a motion to dismiss.” Horn v. Husqvarna Consumer Outdoor Products N.A., Inc., No. 12-CV-567, 2013 WL 693119, at *1 (S.D. Ohio Feb. 26, 2013) (citing Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993)). A plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
III. Law & Argument A. Plaintiffs’ Remaining Claims Seek Declaratory Relief As a result of the Sixth Circuit’s opinion, Plaintiffs’ claims seeking
injunctive relief have been dismissed. (ECF No. 142). On its face, the only claims remaining in Plaintiffs’ Complaint are the claims seeking Declaratory Relief for Violation of the Eight and Fourteenth Amendment in Counts I & II. (ECF No. 1,
8

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3713 Page 9 of 28
PageID# 60-62). All other claims seeking injunctive relief have been dismissed, and Plaintiffs’ Petition for Writ of Habeas Corpus has been dismissed, as the Sixth Circuit’s opinion is dipositive. (ECF No. 141 & 142). “It is, of course, wellestablished in this circuit that a declaratory judgment action cannot be used as a substitute for the statutory habeas corpus procedure.” Morton v. Avery, 393 F.2d 138 (6th Cir. 1968); Scruggs v. Henderson, 380 F.2d 981 (6th Cir. 1967); Forsythe v. Ohio, 333 F.2d 678 (6th Cir. 1964); Braden v. 30th Judicial Circuit Court of Com. of Ky., 454 F.2d 145, 148 (6th Cir. 1972), rev'd and remanded sub nom. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973).
All claims seeking declaratory relief by members of the “Class” and “Subclasses” as defined by the May 21, 2020 Order granting Plaintiffs’ Motion for Class Certification must be dismissed because all claims are moot or lack standing.
B. All Claims By “Current” Inmates As Defined By The “Jail Class” And “Sub-Classes” Are Moot
“The doctrines of standing and mootness are similar, but they are not the same.” City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). Standing seeks to ensure the plaintiff has a “personal stake in the outcome of the controversy” at the outset of litigation. Baker v. Carr, 369 U.S. 186, 204 (1962). Mootness, on the other hand, “is akin to saying that, although an actual case or controversy once
9

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3714 Page 10 of 28
existed, changed circumstances have intervened to destroy standing.” In re: 2016
Primary Election, 836 F.3d 584, 588 (6th Cir. 2016). The common refrain that
mootness is just “standing set in a time frame” best captures the temporal
distinction: standing applies at the sound of the starting gun, and mootness picks
up the baton from there. See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397,
100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (quoting Monaghan, Constitutional
Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)).
In the instant action, on April 17, 2020 Plaintiffs filed a Complaint and
alleged among a multitude of accusations that:
“3. Understanding the dire need for immediate action, medical and public health experts have urged sweeping precautionary measures in everyday life to slow the spread of the virus. Yet the very steps they deem necessary—such as regular handwashing, sanitizing one’s environment, access to testing, prompt medical attention, and wearing protective gear—have been made impossible for the people confined in the Jail by the very officials responsible for their well-being.”
“5. Given reports of at least 23 confirmed cases of COVID-19, an outbreak in the Jail is imminent and will cause death and devastation to countless lives, including the people jailed, the people who work in the jail, their families, and the public at large. The County and the people responsible for operating the Jail, however, have failed to adequately respond to the obvious and urgent threats posed by this growing pandemic. The over-800 people confined in the Jail are forced to suffer
10

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3715 Page 11 of 28
unconstitutional conditions that blatantly deny them the precautions and protections necessary to mitigated against the risks of COVID-19.” (ECF No. 1, PageID# 3, 6). Simply put, Plaintiffs entire cause of action is based on the idea that inmates and pre-trial detainees at OCJ were not being provided a standard of care warranted under the Eighth and Fourteenth Amendments. On July 9, 2020, the Sixth Circuit vacated this Court’s Preliminary Injunction and held that “[O]ur conclusion that Plaintiffs are unlikely to succeed on the merits challenge is dispositive, because [o]ur cases warn that a court must not issue a preliminary injunction where the movant presents no likelihood of merits success. Cameron v. Bouchard, No. 20-1469, 2020 WL 3867393, at *8 (6th Cir. July 9, 2020); Wilson v. Williams, 961 F.3d 829, 843-45 (6th Cir. 2020). The Sixth Circuit held that based on the record the district court had misapplied the law and Defendants were not deliberately indifferent to the inmates at OCJ and “the steps that jail officials took to prevent the spread of COVID-19 were reasonable. Cameron v. Bouchard, No. 20-1469, 2020 WL 3867393, at *7 (6th Cir. July 9, 2020). Now, Plaintiffs want to proceed with a declaratory action against Defendants, even though the Sixth Circuit has deemed the conditions of confinement and the policies of OCJ to be constitutional. To be clear, Plaintiffs
11

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3716 Page 12 of 28
have asserted claims under 42 U.S.C § 1983 against Sheriff Bouchard in his official capacity and Oakland County. Thus, Plaintiffs have asserted a Monell claim against Oakland County alleging that the policies and customs of OCJ have deprived Plaintiffs of their Constitutional rights: “[L]ocal governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978).
In the context of claims for declaratory relief, “a plaintiff must show that he is under threat of suffering ‘injury in fact’ that is concrete and particularized,” and that “threat must be actual and imminent, not conjectural or hypothetical.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). “[P]ast exposure to illegal conduct ... unaccompanied by any continuing, present adverse effects,” will not suffice to establish “a present case or controversy.” Lyons, 461 U.S. at 102, 103 S.Ct. 1660 (quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974)).
“The federal courts have an ongoing obligation under Article III to limit their jurisdiction to cases that may actually affect the rights of the litigants.” Coal.
12

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3717 Page 13 of 28
for Gov't Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 458 (6th Cir. 2004). An actual controversy must exist, not just when the complaint is filed, but at all stages of the case. Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016), as revised (Feb. 9, 2016). “A case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Ford v. Wilder, 469 F.3d 500, 504 (6th Cir. 2006) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). “Mootness results when events occur during the pendency of a litigation which render the court unable to grant the requested relief.” Carras v. Williams, 807 F.2d 1286, 1289 (6th Cir. 1986) (finding that plaintiff's attempt to enjoin state actors, including justices and judges, became moot when there was “no longer a state court proceeding from which to enjoin the named defendants' participation”). Once a case becomes moot, a district court no longer has jurisdiction over it and must dismiss it. Pettrey v. Enter. Title Agency, Inc., 584 F.3d 701, 703 (6th Cir. 2009).
A request for declaratory relief is moot unless “the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Preiser, 422 U.S. at 402 (quoting Maryland
13

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3718 Page 14 of 28
Casualty Co. v. Pacific Co., 312 U.S. 270, 273 (1941)) (internal quotation marks
omitted).
In Lyons, plaintiff sought to enjoin the Los Angeles Police Department
(“L.A.P.D.”) from using chokeholds, which had caused several injuries and deaths
during arrests, including injury to Lyons himself. Lyons, 461 U.S. at 97–98. The
complaint alleged that the L.A.P.D.:
pursuant to the authorization, instruction, and encouragement of Defendant City of Los Angeles, regularly and routinely apply these choke holds in innumerable situations where they are not threatened by the use of any deadly force whatsoever,” that numerous persons have been injured as the result of the application of the chokeholds, that Lyons and others similarly situated are threatened with irreparable injury in the form of bodily injury and loss of life, and that Lyons “justifiably fears that any contact he has with Los Angeles Police officers may result in his being choked and strangled to death without provocation, justification or other legal excuse.
Id. at 98. Despite the allegations of widespread injury and even though the
L.A.P.D. had previously used the chokehold against plaintiff, the Supreme Court
nevertheless held that the future threat of injury was too speculative to support
Lyons's standing to challenge the constitutionality of the department's use of
chokeholds. Id. In reversing the Ninth Circuit's entry of an injunction prohibiting
the use of chokeholds in certain situations, the Court stated:
14

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3719 Page 15 of 28
“Lyons has failed to demonstrate a case or controversy with the City that would justify the equitable relief sought. Lyons' standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers. Count V of the complaint alleged the traffic stop and choking incident five months before. That Lyons may have been illegally choked by the police on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part. The additional allegation in the complaint that the police in Los Angeles routinely apply chokeholds in situations where they are not threatened by the use of deadly force falls far short of the allegations that would be necessary to establish a case or controversy between these parties.”
Id. at 105.
Although the claims sought by the Plaintiff in Lyons were dismissed due to
lack of standing, the arguments are the same. As explained above, the difference
between standing and mootness is merely temporal. A Plaintiff must show an
injury in fact to proceed in the context of claims for injunctive or declaratory relief.
Summers, 555 U.S. at 493. The only difference is that here Plaintiffs claims
became moot at a later stage in the litigation than they did in Lyons. “An actual
15

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3720 Page 16 of 28
controversy must exist, not just when the complaint is filed, but at all stages of the case.” Campbell-Ewald Co., 136 S. Ct. at 669.
In Lyons, the Court held that Plaintiff failed to allege an injury in fact based on plaintiff’s allegation that he was likely to suffer future injury from the use of the chokeholds by police officers because he had previously suffered injury from the use of chokeholds. Lyons, 461 U.S. at 105. The Court held that although plaintiff may have been illegally choked by the police on October 6, 1976, a previous harm without any likelihood of present or future injury “does nothing to establish a real and immediate threat.” Id.
The same logic applies to the instant action. Except here, Plaintiffs do not even have evidence of past injury in light of the Sixth Circuit’s opinion which determined that Plaintiffs’ had no like likelihood of success with respect to their constitutional claims. (ECF No. 141 & 142). Like in Lyons, the generalized assertion that OCJ’s policies will result in future injury is baseless and does not establish a real or immediate threat for which a cause of action may be premised. Plaintiffs fail to establish an injury in fact because the basis for their hypothetical injuries is a conjectural threat of future harm that their constitutional rights will be violated. The alleged threat of future harm is especially speculative (and futile) in light of the Sixth Circuit’s opinion. Plaintiffs’ cause of action simply cannot hold
16

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3721 Page 17 of 28
up in the face of the Sixth Circuit’s opinion that held Plaintiffs’ constitutional rights were not violated. In turn, Plaintiffs’ claims that an unconstitutional policy caused their rights to be violated is similarly baseless. Simply put, Plaintiffs’ claims seeking declaratory relief have become moot, and this Court is unable to grant relief. Carras, F.2d 1286 (6th Cir. 1986). Therefore, this Court no longer has jurisdiction over Plaintiffs’ claims, and Plaintiffs’ claims must be dismissed. Pettrey, 584 F.3d at 703.
C. All Claims Seeking Declaratory Relief Asserted by Class Representatives and Class Members That Have Been Released From Incarceration Are Moot
Even if Plaintiffs can show that their claims are not moot, the claims of inmates that have been released should be dismissed. In Dellis v. Corr. Corp. of Am., Plaintiff alleged an Eight Amendment claim based on the deprivation of water. Dellis v. Corr. Corp. of Am., 257 F.3d 508, 512 (6th Cir. 2001). The Court found that Plaintiff pleaded facts which if proven would entitle him to monetary damages. Id. With regard to Plaintiff’s claims for injunctive and declaratory relief, the Court held that “Plaintiff also requested injunctive and declaratory relief in his complaint; however, because he is no longer incarcerated in either Hardeman County Correctional Facility or Whiteville Correctional Facility, these
17

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3722 Page 18 of 28
prayers for relief are moot. Dellis v. Corr. Corp. of Am., 257 F.3d 508, 510 (6th Cir. 2001); See Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir.1996).
In Sumpter v. Wayne County, Plaintiff sought injunctive and declaratory relief against the Wayne County Jail and its group strip search policies. Sumpter v. Wayne Cty., 868 F.3d 473, 490 (6th Cir. 2017). Plaintiff claimed she was subjected to four separate strip searches as an inmate in the Wayne County Jail between October and November 2012. Id. at 491. However, Plaintiff left the jail in November 2012. Id. The Sixth Circuit affirmed the district court’s grant of summary judgment and deemed Plaintiff’s claims for injunctive and declaratory relief as moot. Id. The Court reasoned that “we can only speculate as to whether she will ever return. At this juncture, we must assume that plaintiff will conduct [her] activities within the law and so avoid ... exposure to the challenged course of conduct.” Id.;O’Shea, 414 U.S. at 497, 94 S.Ct. 669.
In the instant action, named Plaintiffs Jamaal Cameron, Richard Briggs, Raj Lee, and Matthew Saunders have been released. Jamaal Cameron was released on July 5, 2020. Richard Briggs was released on July 29, 2020. Raj Lee was released on July 1, 2020, and Matthew Saunders was released on April 28, 2020. Because the above-named Plaintiffs are no longer incarcerated, their claims for declaratory relief are moot. Dellis, 257 F.3d at 510; See Kensu, 87 F.3d at 175; Sumpter, 868
18

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3723 Page 19 of 28
F.3d at 490-91. Additionally, all inmates previously incarcerated and subsequently released should be dismissed for the same reason. Therefore, this Court no longer has jurisdiction over Plaintiffs’ claims, and Plaintiffs’ claims must be dismissed. Pettrey, 584 F.3d at 703.
D. All Claims By “Future” Inmates As Defined By The “Jail Class” And “Sub-Classes” Lack Standing
All “future persons detained during the course of the COVID-19 pandemic” as defined in the “Jail Class” and all “future persons detained at the Oakland County Jail during the course of the COVID-19 pandemic” as defined in the “PreTrial Subclass” and the Post-Conviction Subclass” lack standing to pursue declaratory relief. (ECF No. 94, PageID# 3059).
It is well settled that, at the outset of litigation, class representatives without personal standing cannot predicate standing on injuries suffered by members of the class but which they themselves have not or will not suffer. Rosen v. Tennessee Com'r of Fin. & Admin., 288 F.3d 918, 928 (6th Cir. 2002); Warth v. Seldin, 422 U.S. 490, 501 (1975) (“the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants.”).
19

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3724 Page 20 of 28
Plaintiffs will argue that the class had already been certified by this Court and found to have standing. It is true this Court proceeded on Plaintiffs’ claims for injunctive relief. However, the Sixth Circuit’s opinion is dispositive of Plaintiffs’ claims seeking injunctive relief and Petition for Habeas Corpus. Cameron v. Bouchard, No. 20-1469, 2020 WL 3867393, at *8 (6th Cir. July 9, 2020). Simply put, any hypothetical class member lacks standing because they do not have an injury in fact and the named Plaintiffs that represent their rights never had an injury in fact. Summers, 555 U.S. at 493; Rosen, 288 F.3d at 931. Supreme Court precedent is explicitly clear that to pursue a declaratory action, a plaintiff cannot assert conjectural or hypothetical injuries. Rosen, 288 F.3d at 931. Therefore, these hypothetical class members lack standing and their “future” claims must be dismissed. Id. Moreover, the named Plaintiffs cannot sue to enforce the rights of the unnamed future class members because they never satisfied Article III’s case and controversy requirement to enforce their own rights. Rosen, 288 F.3d at 931.
E. The Facts and Circumstances That Plaintiffs’ Complaint Was Premised Have Changed
Plaintiffs filed their Complaint on April 17, 2020. (ECF No. 1). Plaintiffs asserted in their Complaint that the COVID-19 pandemic was “especially grave in the state of Michigan, which currently ranks third in the country for coronavirus-
20

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3725 Page 21 of 28
related death.” (ECF No. 1, PageID# 1-2). “The State’s chief medical officer, Dr.
Joneigh Khaldun, declared during a press conference on April 6, 2020 that state
hospitals are overwhelmed because there are no signs that the rate of infection is
slowing down.” (ECF No. 1, PageID# 2). Plaintiffs also asserted that:
“3. Understanding the dire need for immediate action, medical and public health experts have urged sweeping precautionary measures in everyday life to slow the spread of the virus. Yet the very steps they deem necessary—such as regular handwashing, sanitizing one’s environment, access to testing, prompt medical attention, and wearing protective gear—have been made impossible for the people confined in the Jail by the very officials responsible for their well-being.”
“5. Given reports of at least 23 confirmed cases of COVID-19, an outbreak in the Jail is imminent and will cause death and devastation to countless lives, including the people jailed, the people who work in the jail, their families, and the public at large. The County and the people responsible for operating the Jail, however, have failed to adequately respond to the obvious and urgent threats posed by this growing pandemic. The over-800 people confined in the Jail are forced to suffer unconstitutional conditions that blatantly deny them the precautions and protections necessary to mitigated against the risks of COVID-19.”
(ECF No. 1, PageID# 3, 6).
Four months later, Michigan ranks eighteenth in COVID-19 cases and ninth
in COVID-19 related deaths. (Reported Cases and Deaths,
21

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3726 Page 22 of 28
https://www.cnn.com/interactive/2020/health/coronavirus-us-maps-and-cases/, figures based on data from Johns Hopkins University Center for Systems Science and Engineering). Four months later, sufficient bed occupancy is available in every health system/hospital in Michigan. (Statewide Available PPE and Bed Tracking, Patient Census as of 08/17/20, https://www.michigan.gov/coronavirus). Four months later, an imminent outbreak did not occur and “death and devastation to countless lives” did not occur within OCJ. In fact, not a single inmate has been hospitalized or died from COVID-19. (Exhibit A, Warren Affidavit). As of August 19, 2020, OCJ has not had a positive COVID-19 diagnosis by an inmate who did not arrive at OCJ as covid-positive since May 12, 2020. (Exhibit A). OCJ has performed over two-thousand tests for COVID-19. (Exhibit A).
Defendants present this information solely to show that relative to the beginning of the pandemic, the number of daily cases, deaths, and percentage of hospital bed occupancy in the state of Michigan has improved. The imminent devastation and outbreak that was supposed to occur in OCJ as alleged in Plaintiffs’ Complaint did not happen.
Without taking into consideration the Sixth Circuit’s Opinion which held that Plaintiffs’ constitutional rights have not been violated, common sense demonstrates that the policies implemented at OCJ have been working and are
22

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3727 Page 23 of 28

continuing to work in preventing a COVID-19 outbreak. Similarly, the data supports the Sixth Circuit’s determination that Defendants’ actions were “reasonable.” Cameron v. Bouchard, No. 20-1469, 2020 WL 3867393, at *7 (6th Cir. July 9, 2020). Plaintiffs have no legal basis to continue this litigation because their claims lack standing and are moot.
WHEREFORE, Defendants, MICHAEL BOUCHARD and OAKLAND COUNTY, respectfully request this Honorable Court to grant its Motion to Dismiss and dismiss Plaintiffs’ Complaint with prejudice.

Dated: August 19, 2020

Respectfully submitted,
POTTER, DeAGOSTINO, O’DEA & CLARK
s/ STEVEN M. POTTER (P33344) s/ ROBERT C. CLARK (P76359) s/ TREVOR S. POTTER (P84253) Attorneys for Defendants 2701 Cambridge Court, Suite 223 Auburn Hills, Michigan 48326 (248) 377-1700 spotter@potterlaw.com rclark@potterlaw.com tpotter@potterlaw.com

23

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3728 Page 24 of 28
CERTIFICATE OF SERVICE I hereby certify that on August 19, 2020, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to the attorneys of record, and I hereby certify that I have mailed by United States Postal Service the paper to the following non-ECF participants: N/A.
/s/ STEVEN M. POTTER (P33344) Attorney for Defendants 2701 Cambridge Court, Suite 223 Auburn Hills, Michigan 48326 (248) 377-1700 spotter@potterlaw.com
24

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3729 Page 25 of 28
EXHIBIT A

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3730 Page 26 of 28

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,

Case 2:20-cv-10949-LVP-MJH

v.

MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County and OAKLAND COUNTY, MICHIGAN,

Defendants.

AFFIDAVIT OF VICKI-LYN WARREN VICKI-LYN WARREN, being first duly sworn, deposes and states:
1. That this Affidavit is made of my own personal knowledge and that if I am sworn to testify, I can give competent testimony of my own personal knowledge in support of each paragraph of this Affidavit.
2. That I have been employed by Wellpath since March 1, 2012. Wellpath is an outside contractor for the Oakland County Sheriff’s Office. Wellpath provides medical and dental services for the inmate population at the Oakland County

1

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3731 Page 27 of 28

Jail. At all times relevant to the instant action I have worked as the Health Services Administrator for the Oakland County Jail since 2014. 3. That no inmates have been hospitalized or died from COVID-19. 4. That the Oakland County Jail has performed over two-thousand tests for COVID-19. 5. That the testing and quarantine policies implemented at the Oakland County Jail have not changed since they were implemented prior to the filing of this lawsuit. 6. That since May 12, 2020, two inmates were diagnosed as covid-positive on May 18, 2020 and August 13, 2020 upon arrival at the Oakland County Jail and were immediately entered into negative pressure cells. 7. That as of August 19, 2020, no inmate has tested positive for COVID-19 since May 12, 2020, excluding the two inmates identified in Paragraph 6 that tested positive upon arrival.

I declare under penalty of perjury, under 28 U.S.C. § 1746, that the foregoing is true and correct.

Further, Affiant sayeth not.

Dated: August 19, 2020

/s/Vicki-Lyn Warren VICKI-LYN WARREN *consent for signing given telephonically

2

Case 2:20-cv-10949-LVP-PTM ECF No. 149 filed 08/19/20 PageID.3732 Page 28 of 28
Due to the COVID-19 pandemic, it was not possible to obtain a written signature on the above Affidavit. I am an attorney admitted to the Eastern District of Michigan. On August 18, 2020, I personally spoke with VICKI-LYN WARREN and read this Affidavit to her. VICKI-LYN WARREN told me that the information in the above Affidavit is true and gave me verbal consent to sign on her behalf. I declare under penalty of perjury, under 28 U.S.C. § 1746, that the foregoing is true and correct.
/s/Trevor S. Potter (P84253) Trevor S. Potter (P84253) Attorney for Defendants
3

 
 Case 2:20-cv-10949-LVP-PTM ECF No. 169, PageID.4173 Filed 12/15/20 Page 1 of 14

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON, RICHARD BRIGGS, RAJ LEE, MICHAEL CAMERON, and MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,

Plaintiffs, v.

Civil Case No. 20-10949 Honorable Linda V. Parker

MICHAEL BOUCHARD, CURTIS D. CHILDS, and OAKLAND COUNTY,

Defendants. ____________________________________/

OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS TO VACATE (ECF NO. 148) AND DISMISS (ECF NO. 149)

Plaintiffs filed this lawsuit at the start of the COVID-19 pandemic seeking

release from the Oakland County Jail of inmates who are at increased risk of

serious outcomes if they contract the virus and certain safety protocols to protect

all jail inmates from the virus. Early in the proceedings—while the Court was

adjudicating Plaintiffs’ motions for temporary and permanent injunctive relief—

the parties entered into two stipulated orders: (i) an April 22, 2020 order in which

Defendants agreed to undertake outlined measures at the jail “during the pendency

of the COVID-19 pandemic” (ECF No. 28 at Pg ID 798); and (ii) a May 29, 2020

order prohibiting Defendants, with limited exceptions, from transferring inmates

Case 2:20-cv-10949-LVP-PTM ECF No. 169, PageID.4174 Filed 12/15/20 Page 2 of 14
for disciplinary reasons into a quarantined area of the jail, “during the pendency of the instant litigation” (ECF No. 110 at Pg ID 3153). The matter is presently before the Court on Defendants’ motion to vacate those stipulated orders (ECF No. 148), as well as Defendants’ related motion to dismiss this action (ECF No. 149). Both motions have been fully briefed. (ECF Nos. 153, 154, 157, 159.) The Court held a hearing with respect to the motions on December 14, 2020.
Defendants’ motions are premised primarily on the Sixth Circuit Court of Appeal’s decision, Cameron v. Bouchard, 815 F. App’x 978 (6th Cir. 2020), vacating this Court’s opinion and order granting Plaintiffs’ motion for a preliminary injunction (ECF Nos. 93, 94). Contrary to this Court’s factual findings following an evidentiary hearing, the Sixth Circuit determined that Defendants had taken reasonable steps to prevent the spread of COVID-19 at the jail. Cameron, 815 F. App’x at 985. The Sixth Circuit therefore concluded that Plaintiffs were not likely to succeed on their claims in this matter. The appellate court went on to state that this conclusion “is dispositive, because ‘[its] cases warn that a court must not issue a preliminary injunction where the movant presents no likelihood of merits success.” Id. at 988 (quoting Wilson v. Williams, 961 F.3d 829, 843-45 (6th Cir. 2020)).
2

Case 2:20-cv-10949-LVP-PTM ECF No. 169, PageID.4175 Filed 12/15/20 Page 3 of 14
Defendants’ Arguments According to Defendants, the Sixth Circuit’s decision ends this litigation and requires the Court to vacate the parties’ stipulated orders and dismiss Plaintiffs’ claims. With regard to the latter, Defendants maintain that Plaintiffs’ claims for injunctive relief have been completely adjudicated and dismissed as a result of the decision on appeal. Defendants also maintain that manifest injustice—that being, direct contradiction of the Sixth Circuit’s decision—will result in the continued enforcement of the parties’ stipulated orders. In their motion to dismiss, Defendants further argue that events subsequent to the Court’s preliminary injunction decision deprive the Court of subject matter jurisdiction to adjudicate Plaintiffs’ claims. (ECF No. 149.) Specifically, Defendants argue that the claims for declaratory relief of current jail inmates, as defined by the Class and Sub-Class certified by the Court on May 21, 2020 (see ECF No. 93 at Pg ID 3023-32), are moot because the Sixth Circuit has concluded that the constitutional rights of jail inmates were not violated. In other words, the Sixth Circuit’s finding, Defendants maintain, is conclusive of whether Plaintiffs have suffered an injury in fact and they can do nothing more than show “a conjectural threat of future harm that their constitutional rights will be violated.” (ECF No. 149 at Pg ID 3720.)
3

Case 2:20-cv-10949-LVP-PTM ECF No. 169, PageID.4176 Filed 12/15/20 Page 4 of 14
Defendants also argue that the release of Class members, including all of the named Plaintiffs, renders this action moot. As to future detainees, Defendants contend that they lack standing because “class representatives without personal standing cannot predicate standing on injuries suffered by members of the class but which they themselves have not or will not suffer.” (Id. at 3723.) Anticipating that Plaintiffs will argue that Class representatives had standing when this Court certified the Class and Sub-Class, Defendants rely again on the Sixth Circuit’s decision to argue that, in fact, the Class Representatives did not because they were found by the Sixth Circuit to have not suffered an injury in fact.
Lastly, Defendants maintain that facts and circumstances on which Plaintiffs’ Complaint was premised have changed in that the number of COVID-19 cases in Michigan, as of August 19, 2020 when Defendants filed their motion, had significantly decreased and “[t]he imminent devastation and outbreak that was supposed to occur in [the Oakland County Jail] as alleged in Plaintiffs’ Complaint did not happen.” (Id. at Pg ID 3726.)
Discussion Contrary to Defendants’ assertion, the Sixth Circuit’s July 9 decision does not sound the death knell for Plaintiffs’ claims. The appellate court’s use of “dispositive” referred only to whether Plaintiffs were entitled to a preliminary injunction. In other words, the court reasoned only that its finding that Plaintiffs
4

Case 2:20-cv-10949-LVP-PTM ECF No. 169, PageID.4177 Filed 12/15/20 Page 5 of 14
were not likely to succeed on the merits was the dispositive factor in deciding
whether to grant preliminary injunctive relief. Defendants’ “reasoning fails . . .
because it improperly equates ‘likelihood of success’ with ‘success,’ and what is
more important, because it ignores the significant procedural differences between
preliminary and permanent injunctions.” Univ. of Texas v. Camenisch, 451 U.S.
390, 394. As the Supreme Court explained in Camenisch:
The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held. Given this limited purpose, and given the haste that is often necessary if those positions are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits. … and the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits. In light of these considerations, it is generally inappropriate for a federal court at the preliminaryinjunction stage to give a final judgment on the merits.
Id. at 395 (internal citations omitted); see also Certified Restoration Dry Cleaning
Network, LLC v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007) (quoting
Camenisch). Generally, a final merits determination is not made at the preliminary
injunction stage because the parties have not presented their “full proof of the
facts.” Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 753 F.2d
1354, 1356 (6th Cir. 1985) (“An appellate court in reviewing the propriety of a
preliminary injunction should refrain from the unnecessary comment on the
5

Case 2:20-cv-10949-LVP-PTM ECF No. 169, PageID.4178 Filed 12/15/20 Page 6 of 14
evidence or review of the merits of the case since the case has yet to be heard in full on the merits.”); see also Cameron, 815 F. App’x at 986 (quoting Wilson, 961 F.3d at 832-33) (“Our task is to review the record that was before the district court at the time the preliminary injunction was entered.” (ellipses omitted)).
Contrary to Defendants’ assertion—repeated at the motion hearing—the Sixth Circuit also did not make a final adjudication with respect to Plaintiffs’ habeas claim. The appellate court declined to address Defendants’ threshold arguments relative to the claim based on its preliminary assessment of the facts and whether Plaintiffs demonstrated a constitutional violation based on those preliminary factual determinations. See id. at 983 n.1. Notably, the Sixth Circuit did opine on whether Plaintiffs presented a cognizable habeas claim, stating that “[t]his … argument [that Plaintiffs have not presented a cognizable claim] is inconsistent with [its] decision in Wilson.” Id. (citing Wilson, 961 F.3d at 837-39).
Because Defendants overstate the impact of the Sixth Circuit’s decision, they mistake any manifest injustice flowing from a failure to vacate the April 22 and May 29 stipulated orders. Defendants fail to identify any other injustice if the orders remain in effect. See Fairway Constr. Co. v. Allstate Modernization, Inc., 495 F.2d 1077, 1079 (6th Cir. 1974) (“The general rule is that stipulations entered into freely and fairly are not to be set aside except to avoid manifest injustice.”); United States v. Robinson, 191 F. App’x 408, 409-10 (6th Cir. 2006) (same). In
6

Case 2:20-cv-10949-LVP-PTM ECF No. 169, PageID.4179 Filed 12/15/20 Page 7 of 14
reply Defendants argue that continued enforcement of the stipulations will “subject[ them] to the daily demands of Plaintiffs, and Defendants will be forced to relinquish control of the Oakland County Jail … to Plaintiffs’ counsel who have no experience in running a jail.” (ECF No. 154 at Pg ID 3781.) However, Defendants’ alarm seems contradictory to their repeated refrain that they already were doing everything the orders require before this lawsuit was filed; a claim expressly included in one of the stipulations. (See ECF No. 28 ¶ A(3) (“Defendants’ position is that Defendants were in full compliance with all subparagraphs of this Stipulation prior to the filing of Plaintiffs’ lawsuit.”) If that is so, and continues to be the case, Plaintiffs’ counsel will have no reason to complain or seek interference in jail operations.
Each of the stipulated orders contains express and plain language providing that the order will remain in force throughout the duration of this litigation and/or the COVID-19 pandemic. (ECF No. 28 at Pg ID 797 ¶ A(2) (“The Court retains jurisdiction to enforce this Agreement for the duration of this litigation”); id. ¶ B (“Defendants shall undertake the following measures related to the conditions of confinement at the Oakland County Jail during the pendency of the COVID-19 pandemic”); ECF No. 110 at 3152, 2153-54 ¶¶ 3, 7. (“This stipulated order will remain in effect only during the pendency of the instant litigation.”).) Nothing in
7

Case 2:20-cv-10949-LVP-PTM ECF No. 169, PageID.4180 Filed 12/15/20 Page 8 of 14
the parties’ agreement conditioned Defendants’ obligations on the rise or fall of the Court’s preliminary decisions.
Lastly, Plaintiffs’ claims are not moot. “‘Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies.’” Kentucky v. U.S. ex rel. Hagel, 759 F.3d 588, 595 (6th Cir. 2014) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990)). A case may become moot “when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 410 (1980) (internal quotation marks and citation omitted). This latter “personal stake requirement” is a corollary to the rule that federal courts lack the power to “decide questions that cannot affect the rights of the litigants in the case before them.” North Carolina v. Rice, 404 U.S. 244, 246 (1971). The plaintiff must have a stake in the action from its filing through its termination. See Hrivnak v. NCO Portfolio Mgmt., Inc., 719 F.3d 564, 567 (6th Cir. 2013). If developments during the course of litigation eliminate the plaintiff’s personal stake, the case generally must be dismissed as moot. Id. (citing Church of Scientology v. United States, 506 U.S. 9, 12 (1992)).
“When class actions are involved, however, the Supreme Court has explained that ‘the Art[icle] III mootness doctrine’ is ‘flexible.’” Wilson v. Gordon, 822 F.3d 934, 942 (6th Cir. 2016) (quoting Geraghty, 445 U.S. at 400).
8

Case 2:20-cv-10949-LVP-PTM ECF No. 169, PageID.4181 Filed 12/15/20 Page 9 of 14
“Once a class is certified, the mooting of the named plaintiff’s claim does not moot the action.” Brunet v. City of Columbus, 1 F.3d 390, 399 (6th Cir. 1993). “This is because once a class is certified, ‘the class of unnamed persons described in the certification acquires a legal status separate from the interest asserted’ by the named plaintiff.” Wilson, 822 F.3d at 942 (quoting Sosna v. Iowa, 419 U.S. 393, 399 (1975)). As such, it matters not that the Class representatives are now released from the Oakland County Jail.
Moreover, in Brunet, the Sixth Circuit recognized that “special mootness rules exist for class actions.” 1 F.3d at 399. Particularly relevant to the current matter is the “inherently transitory” exception. This exception developed from the Supreme Court’s decision in Sosna, where the Court observed:
There may be cases in which the controversy involving the named plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion. In such circumstances, whether the certification can be said to “relate back” to the filing of the complaint may depend upon the circumstances of the particular case and especially the reality of the claim that otherwise would evade review. 419 U.S. at 402 n.11. The Supreme Court invoked this exception in Gerstein v. Pugh, 420 U.S. 103 (1975). The named plaintiffs in Gerstein filed a lawsuit on behalf of a putative class of pretrial detainees, alleging that Florida violated their constitutional rights by not providing a prompt probable cause hearing. Id. at 105- 07. The record
9

Case 2:20-cv-10949-LVP-PTM ECF No. 169, PageID.4182 Filed 12/15/20 Page 10 of 14
before the Supreme Court did not clearly show whether any of the named plaintiffs were still pretrial detainees when the district court certified the class. Id. at 110 n.11. Nevertheless, the Court held that the case was not moot, explaining:
The length of pretrial custody cannot be ascertained at the outset, and it may be ended at any time by release on recognizance, dismissal of the charges, or a guilty plea, as well as by acquittal or conviction after trial. It is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class. Moreover, in this case the constant existence of a class of persons suffering the deprivation is certain.” Id. From Gerstein, courts have distilled two requirements for the “inherently transitory” exception to apply: “(1) that the injury be so transitory that it would likely evade review by becoming moot before the district court can rule on class certification, and (2) that it is certain other class members are suffering the injury.” Wilson, 822 F.3d at 945. At to the first requirement, like Gerstein, the present action involves pretrial detainees or convicted individuals serving sentences of less than a year. The “inherently transitory” exception is particularly applicable to “an individual incarcerated in a county jail [who] may be released for a number of reasons that he cannot anticipate.” Olson v. Brown, 594 F.3d 577, 583 (7th Cir. 2020); Wilson v. Gordon, 822 F.3d 934, 946 (6th Cir. 2016) (quoting Olson to explain “that the crux of the ‘inherently transitory’ exception is the uncertainty about the length or time a
10

Case 2:20-cv-10949-LVP-PTM ECF No. 169, PageID.4183 Filed 12/15/20 Page 11 of 14
claim will remain alive.’”) (additional citation omitted). As the Olson court “emphasized,” and the Sixth Circuit restated in Wilson, an inmate in a county jail “‘do[es] not know when his claim w[ill] become moot’ because ‘the duration of his claim [i]s at the discretion of the … Department of Correction.’” Wilson, 822 F.3d at 946 (quoting Olson, 594 F.3d at 583).
The second requirement is satisfied because the COVID-19 pandemic continues, as does the detention of individuals in the Oakland County Jail. While the number of infected individuals in Oakland County and Michigan may have been in decline when Defendants filed their motion to dismiss, those numbers are now well-above what they were when Plaintiffs filed this lawsuit. See https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173---,00.html (visited 12/9/20); (Compare ECF No. 93 at Pg ID 2996 (as of May 19, 2020, COVID-19 cases in Michigan were 52,350 with 5,017 deaths) with https://www.michigan.gov/coronavirus (visited 12/9/20) (total confirmed cases currently at 410,295 with 10,138 confirmed COVID-19 related deaths). Due to an “alarmingly high” rate of infections and death from the virus, the State recently issued and extended orders restricting activities. See, e.g., https://www.michigan.gov/coronavirus/0,9753,7-406-98158-546811--,00.html (visited 12/9/20). As “COVID-19 is more easily transmitted within communal living and densely packed environments, such as jail facilities” (ECF No. 93 at Pg
11

Case 2:20-cv-10949-LVP-PTM ECF No. 169, PageID.4184 Filed 12/15/20 Page 12 of 14
ID 3000 (citing Meyer Decl., ECF No. 1-3 at Pg ID 95; Lauring Decl., ECF No. 1015 at Pg ID 270-72)), Plaintiffs continue to have a claim that they are at risk of serious injury.
Defendants assert that—at least as of August 19, 2020—no inmate had been hospitalized or died from COVID-19. (ECF No. 149 at Pg ID 3726 (citing Ex. A ¶ 3, ECF No. 149 at Pg ID 3731).) While this assertion may prove accurate, in litigation, each party is usually afforded the opportunity to engage in discovery to assess the accuracy of the opposing party’s assertions. Whether Defendants are taking reasonable actions to protect Plaintiffs from this potentially life-threatening virus is a determination that has not been finally determined and Plaintiffs do not have to show that inmates already have been harmed to demonstrate their entitlement to relief. See Helling v. McKinney, 509 U.S. 25, 33 (1993) (“It would be odd to deny an injunction to inmates who plainly proved an unsafe, lifethreatening condition in their prison on the ground that nothing yet had happened to them.”).
Thus, this action is not moot, and a representative remains to pursue relief on behalf of the Class and Sub-Class. But even if the claims of the named representatives have become moot, the answer is not to dismiss the action. See Wilson, 822 F.3d at 942 (quoting Brunet, 1 F.3d at 399) (“The general rule is that “[o ]nce a class is certified, the mooting of the named plaintiff’s claim does not
12

Case 2:20-cv-10949-LVP-PTM ECF No. 169, PageID.4185 Filed 12/15/20 Page 13 of 14
moot the action, the court continues to have jurisdiction to hear the merits of the action if a controversy between any class member and the defendant exists.”) (emphasis in original and brackets omitted). This is because a representative may still adequately represent the interests of the class even if his or her personal claims become moot. Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608, 619 (6th Cir. 2013) (citing Sosna v. Iowa, 419 U.S. 393, 401-03 (1975)) (“While Sosna is first and foremost an Article III determination, we can distill from its reasoning that a named class representative may still adequately represent the class, for purposes of Rule 23, even if the representative’s personal claims have become moot, at least until such time that there is a determination that the representative is no longer adequate.”). Alternatively, Plaintiffs may identify members of the Class and SubClass who can substitute in as an adequate representative. See, Gerahgty, 445 U.S. 388, 394 (1980). IV. Conclusion
In short, the Court finds that neither the Sixth Circuit’s preliminary assessment regarding the merits of Plaintiffs’ claims, the release of some members of the Class and Sub-Class, nor Defendants’ factual assertions require this Court to vacate the stipulated orders previously entered in this case or the dismissal of Plaintiffs’ claims.
Accordingly,
13

Case 2:20-cv-10949-LVP-PTM ECF No. 169, PageID.4186 Filed 12/15/20 Page 14 of 14

IT IS ORDERED that Defendants’ Motion to Vacate Stay (ECF No.

148) and Motion to Dismiss (ECF No. 149) are DENIED.

IT IS SO ORDERED.

s/ Linda V. Parker LINDA V. PARKER U.S. DISTRICT JUDGE

Dated: December 15, 2020

14