Case 2:20-cv-01192-SPL--JZB Document 1 Filed 06/16/20 Page 1 of 51

1 Larry J. Wulkan (021404)
STINSON LLP
2 Firm Identification Number 00462400
1850 North Central Avenue, Suite 2100
3 Phoenix, Arizona 85004-4584
Telephone: (602) 212-8511
4 Fax: (602) 240-6925
Email: larry.wulkan@stinson.com
5

6
Counsel for Plaintiffs
7 Additional counsel listed on following page

8
UNITED STATES DISTRICT COURT
9
DISTRICT OF ARIZONA
10

11

Jason Fenty, Brian Stepter, Douglas

Case No.

12 Crough, Edward Reason, Jesus Tequida,

Ramon Avenenti, Anthony Scroggins,

CLASS ACTION

13 Dale Perez, and Tamara Ochoa on behalf

of themselves and those similarly situated, PETITION FOR WRIT OF HABEAS

14

CORPUS AND COMPLAINT FOR

Plaintiff-Petitioners,

INJUNCTIVE AND DECLARATORY

15

RELIEF

Puente Human Rights Movement,

16

IMMEDIATE RELIEF SOUGHT

Plaintiff,

17

v.

18

Sheriff Paul Penzone, in his official

19 capacity, and Maricopa County, a

municipal entity,

20

Defendants.

21

22

23

24

25

26

27

28

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1 ETHAN J. SANDERS* (MO 71151) (ethan.sanders@stinson.com)
STINSON LLP
2 1201 Walnut Street, Suite 2900
Kansas City, MO 64106
3 Telephone: (816) 691-2628
4 SHARI ROSS LAHLOU* (DC SBN 476630) (shari.lahlou@dechert.com)
DECHERT LLP
5 1900 K Street, N.W.
Washington, DC 20006 - 1110
6 Telephone: (202) 261-3300
7 BRIAN RAPHEL* (NY SBN 5592308) (brian.raphel@dechert.com)
PAT ANDRIOLA* (NY SBN 5406327) (pat.andriola@dechert.com)
8 TIMOTHY LY* (NY SBN 5478540) (timothy.ly@dechert.com)
DECHERT LLP
9 Three Bryant Park, 1095 Avenue of the Americas
New York, NY 10036
10 Telephone: (212) 698-3500
11 BENJAMIN M. SADUN* (CA SBN 287533) (benjamin.sadun@dechert.com)
ALLISON OZUROVICH* (CA SBN 312797) (allie.ozurovich@dechert.com)
12 DECHERT LLP
633 West 5th Street, Suite 4900
13 Los Angeles, CA 90071
Telephone: (213) 808-5700
14
JARED G. KEENAN (SBN 027068) (jkeenan@acluaz.org)
15 VICTORIA LOPEZ** (SBN 330042) (vlopez@acluaz.org)
ACLU FOUNDATION OF ARIZONA
16 P.O. Box 17148
Phoenix, AZ 85011
17 Telephone: (602) 650-1854
18 OLGA AKSELROD* (NY SBN 4132825) (oakselrod@aclu.org)
ERIC BALABAN* (Admitted to Maryland Bar) (ebalaban@aclu.org)
19 ZOE BRENNAN-KROHN* (CA SBN 324912) (ZBrennan-Krohn@aclu.org)
HUGH HANDEYSIDE* (NY SBN 5394002) (hhandeyside@aclu.org)
20 CLARA SPERA* (NY SBN 5590229) (cspera@aclu.org)
SOMIL TRIVEDI* (NY SBN 4834495) (strivedi@aclu.org)
21 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street, 18th Floor
22 New York, NY 10014
Telephone: (212) 549-2569
23
915 15th St. NW, 7th Floor
24 Washington, DC 20005
Telephone: (202) 393-4930
25
39 Drumm Street
26 San Francisco CA 94111
Telephone: (415) 343-0769
27
*Application for pro hac vice forthcoming
28 **Admitted pursuant to Ariz. Sup. Ct. R. 38(f)
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1

INTRODUCTION

2

1. The COVID-19 pandemic has taken hold at Maricopa County’s five jails, and

3 the virus is spreading rapidly. In just two weeks, the number of positive COVID-19 cases

4 has skyrocketed from six to 313—an exponential increase of more than 5,000 percent.1 As

5 of June 9, 2020, only 870 tests had been administered in the jails since the start of the

6 pandemic, despite the jails having an incarcerated population of around 4,500.2 Even this

7 figure is deceiving, as the testing number includes people both currently and previously

8 incarcerated at the jails.

9

2. While Maricopa County and Maricopa County Sheriff Paul Penzone have

10 claimed to be implementing measures sufficient to contain the virus at the facilities—4th

11 Avenue Jail, Estrella, Saguaro, Lower Buckeye Jail, and Towers—the exploding number of

12 infections tells a different story. In fact, Defendants have not instituted even the most basic

13 safeguards for incarcerated persons and staff. Known dangerous and deadly conditions

14 across the jails include:

15

a. inadequate COVID-19 testing or screening of newly booked detainees, and

16

failure to properly implement routine intake cohorting;

17

b. inadequate COVID-19 testing or screening of incarcerated persons with

18

symptoms or those exposed to someone known or suspected to be infected with

19

COVID-19 and failure to implement proper cohorting and quarantine;

20

21

22 1 MCSO jails have more COVID-19 cases than all Arizona prisons, THE ASSOCIATED

23

PRESS (June 12, 2020), https://ktar.com/story/3276059/mcso-jails-have-more-covid-19cases-than-all-arizona-prisons/ (reporting 313 cases as of June 12, 2020); Correctional

24 Health Services and MCSO Respond to a Rise in COVID-19 Cases in County Jails,
MARICOPA COUNTY NEWSROOM (June 4, 2020),

25 https://www.maricopa.gov/CivicAlerts.aspx?AID=1399 (reporting 6 cases as of May 30,

2020).

26 2 Lauren Castle, Maricopa County Considers Mass Testing in Jails After Confirmed

27

COVID-19 Cases Spike, AZ CENTRAL (June 10, 2020), https://cutt.ly/nufiuy1. The 870 tests administered may not correlate to the number of individuals tested because

28 individuals may be tested multiple times.

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1

c. inadequate protections for medically vulnerable and disabled incarcerated

2

persons;

3

d. failure to institute appropriate social distancing practices in the jails, including at

4

booking, in dormitory bunk arrangements, recreational areas, meal waiting lines,

5

holding cells, restroom and shower facilities, and during transportation;

6

e. inadequate cleaning, hygiene, decontamination, and disinfecting supplies and

7

procedures, both for incarcerated people and staff;

8

f. failure to provide adequate personal protective equipment (“PPE”) to

9

incarcerated people and failure to mandate the use and regular replacement of

10

such equipment by both staff and people incarcerated in the jails, particularly

11

equipment designed for single use (such as single-use disposable surgical masks);

12

and

13

g. failure to timely and adequately educate people incarcerated in the jails about the

14

virus and prevention methods.

15

3. Absent intervention from this Court to align the operation of Maricopa

16 County jails with public health principles—first and foremost, through the release of as

17 many medically vulnerable detainees as reasonable, but also through improved social

18 distancing, testing, treatment, education, hygiene and sanitation protocols for all others—

19 incarcerated persons, jail staff, and the community will face devastating, and in some cases

20 deadly, irreparable harm.3 The dramatic outbreak at the Maricopa County jails proves the

21 need for immediate and significant public health interventions.

22

4. Accordingly, Plaintiffs—persons and a local grassroots organization seeking

23 to represent classes incarcerated at the jails—bring this emergency action pursuing two

24 distinct vehicles for relief: 1) a habeas petition seeking immediate release of a limited subset

25 of medically vulnerable and disabled pretrial detainees held on unaffordable bonds and a

26

27 3 See Sandra E. Garcia, U.S. Prison Population Remained Stable as Pandemic Grew, N.Y. 28 Times (May 14, 2020), https://cutt.ly/VyVvEwu.

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1 process to determine the appropriateness of release for other medically vulnerable prisoners;

2 and 2) a class action seeking implementation of critical measures to stem the spread of the

3 virus for all remaining Plaintiffs.4 This relief is being sought pursuant to: 22 U.S.C. § 2241,

4 42 U.S.C. § 1983, the Americans with Disabilities Act, and the Rehabilitation Act, all of

5 which Defendants are violating.

6

5. These measures are necessary to ensure the health and safety of incarcerated

7 persons, Maricopa County Sheriff’s Office staff, and the wider Arizona community. Given

8 the rapid and ongoing exponential spread of COVID-19 at the jails, there is no time to spare.

9

JURISDICTION AND VENUE

10

6. This Court has subject-matter jurisdiction over this action pursuant to 28

11 U.S.C. § 2241 (habeas corpus); 42 U.S.C. § 12131 et seq. and 29 U.S.C. § 794 (disability

12 discrimination); 42 U.S.C. § 1983 (civil rights action); and 28 U.S.C. § 1331 (federal

13 question).

14

7. This Court may grant relief under 28 U.S.C. §§ 2241 (habeas corpus), 2201-

15 02 (declaratory relief), and 1651 (All Writs Act); Federal Rules of Civil Procedure 65

16 (injunctive relief) and 23 (class action); as well as the Fourteenth and Eighth Amendments

17 to the U.S. Constitution.

18

8. Venue is proper in the District of Arizona pursuant to 28 U.S.C. § 2241(d)

19 because the Plaintiffs and all other class members are in custody in this judicial district and

20 venue. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the

21 events or omissions giving rise to Plaintiffs’ claims occurred in this district.

22

23

4 Alternatively, this Court may order release of the medically vulnerable and/or disabled

24 pending resolution of the Plaintiffs’ habeas petition in the form of enlargement, a remedy

sometimes referred to as “release” or “bail,” in which an individual remains in custody,
25 but the place of custody is enlarged by the Court. See Declaration of Professor Judith

26

Resnik, filed in Money, et al. v. Jeffreys, Case No. 20-cv-02094 (N.D. Ill.), Dkt. No. 24-3, available at

27

https://law.yale.edu/sites/default/files/area/center/liman/2020.04.08_declaration_of_prof._ judith_resnik_-_money_v._jeffreys.pdf; see also Land v. Deeds, 878 F.2d 318 (9th Cir.

28 1989).

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1

PARTIES

2

9. Plaintiff Jason Fenty is a 48-year-old man who has been in pretrial custody

3 since July 1, 2018 and is currently housed at the Towers Jail. He has not been convicted of

4 the crime for which he is imprisoned and is presumed innocent. He has the following

5 medical conditions: stage 2 hypertension; adjustment disorder with anxiety; PTSD; and

6 chest pain. He is at risk of serious illness or death should he contract COVID-19. He was

7 arrested because of an accusation that he created a fake identification. If released, Mr. Fenty

8 would be able to self-quarantine in Maricopa County. He appears on behalf of himself and

9 all other medically vulnerable and disabled detained persons held pretrial in Defendants’

10 custody at the Maricopa County jails who are at high risk of severe illness and death due to

11 COVID-19. Mr. Fenty is a person with a disability as defined under the ADA and Section

12 504 of the Rehabilitation Act (“Section 504”).

13

10. Plaintiff Brian Stepter is a 61-year-old man who has been in pretrial custody

14 since approximately September 18, 2019 and is currently housed at the Lower Buckeye Jail.

15 He has not been convicted of the crime for which he is imprisoned and is presumed

16 innocent. Mr. Stepter has chronic respiratory problems that result in difficulty breathing

17 and requires oxygen treatments to clear his lungs. He also has high blood pressure that

18 requires medication. These conditions, and his age, make him extremely vulnerable to

19 serious illness or death should he contract a viral respiratory infection like COVID-19. Mr.

20 Stepter was arrested for failure to return rental property and for possessing a small amount

21 of cocaine. If released, he could stay in Phoenix, Arizona, and practice social distancing

22 and take other preventative measures to protect himself from contracting COVID-19. He

23 appears on behalf of himself and all other medically vulnerable and disabled detained

24 persons held pretrial in Defendants’ custody at the Maricopa County jails who are at high

25 risk of severe illness and death due to COVID-19. Mr. Stepter is a person with a disability

26 as defined under the ADA and Section 504.

27

11. Plaintiff Douglas Crough is a 55-year-old man who has been in pretrial

28 custody since February 26, 2020 and is currently housed in the Lower Buckeye Jail. Mr.

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1 Crough has a heart condition, chronic obstructive pulmonary disease (COPD), hepatitis,

2 and chest pain caused by stable angina. He is at risk of serious illness and death should he

3 contract COVID-19 due to these chronic health issues. He has not been convicted of the

4 crime for which he is imprisoned and is presumed innocent. He was arrested for drug

5 possession. If released, he plans to self-quarantine where necessary and practice other

6 recommended measures to protect his health, including social distancing, in Tempe,

7 Arizona. He appears on behalf of himself and all other medically vulnerable and disabled

8 detained persons held in pretrial detention at the Maricopa County jails. Mr. Crough is a

9 person with a disability as defined under the ADA and Section 504.

10

12. Plaintiff Edward Reason is a 62-year-old man who has been in custody at the

11 Maricopa County jails since May 4, 2020, and is currently housed at the Saguaro Jail. Mr.

12 Reason has severe asthma, which is a respiratory condition known to heighten the danger

13 of serious illness or death posed by a COVID-19 infection, especially given his age. He

14 pled guilty to a probation violation and is serving a 60-day sentence. If released, he would

15 be able to self-quarantine where necessary and practice other recommended measures,

16 including social distancing, to protect his health. He appears on behalf of himself and all

17 detained persons held post-conviction at the Maricopa County jails. Mr. Reason is a person

18 with a disability as defined under the ADA and Section 504.

19

13. Plaintiff Jesus Tequida is a 64-year-old man who has been in custody since

20 February 19, 2020. He is currently housed at the Lower Buckeye Jail. He is awaiting

21 sentencing after conviction for drug possession. Mr. Tequida has serious health issues,

22 including high blood pressure, kidney failure, cardiomyopathy, cardiomegaly, heart failure,

23 hepatitis, as well as liver and prostate problems. These conditions leave him at high risk of

24 serious illness or death from COIVD-19 infection. If released, he would be able to self-

25 quarantine and practice other recommended measures, in Litchfield Park, AZ. Mr. Tequida

26 appears on behalf of himself and all other medically vulnerable and disabled detained

27 persons held post-conviction at the Maricopa County jails. Mr. Tequida is a person with a

28 disability as defined under the ADA and Section 504.

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1

14. Plaintiff Ramon Avenenti is a 42-year-old man who has been in custody since

2 approximately July 25, 2019 and is currently housed at the 4th Avenue Jail. He is awaiting

3 sentencing after a plea bargain on a series of charges related to drug possession. Mr.

4 Avenenti tested positive for COVID-19 in early June of 2020. He has not received adequate

5 medical treatment. If released, he would be able to self-quarantine and practice other

6 recommended measures, including social distancing, in either Scottsdale or Chandler,

7 Arizona. Mr. Avenenti appears on behalf of himself and all other persons held post-

8 conviction at the Maricopa County jails.

9

15. Plaintiff Anthony Scroggins is a 44-year-old male who has been in pretrial

10 custody since December 16, 2019 and is housed at the 4th Avenue Jail. Mr. Scroggins has

11 been diagnosed with, among other things, asthma and schizophrenia. These conditions

12 leave him especially vulnerable to COVID-19. He is charged with resisting arrest,

13 aggravated assault, and unlawful flight. He has not been convicted of the crimes for which

14 he is imprisoned and is presumed innocent. If released during the pendency of his criminal

15 proceedings, he would be able to self-quarantine and practice other recommended measures

16 to protect his health, including social distancing, in Phoenix, Arizona. Mr. Scroggins

17 appears on behalf of himself and all other medically vulnerable and disabled detained

18 persons held pretrial at the Maricopa County jails. Mr. Scroggins is a person with a

19 disability as defined under the ADA and Section 504.

20

16. Plaintiff Dale Perez is a 36-year-old man who has been in pretrial custody

21 since May 11, 2020 and is housed at the Towers Jail. He is charged with crimes related to

22 drug possession, as well as assault and operating a vehicle under the influence. He has not

23 been convicted of the crimes for which he is imprisoned and is presumed innocent. If

24 released during the pendency of his criminal proceeding, he would be able to self-quarantine

25 and practice other recommended measures to protect his health, including social distancing

26 in Phoenix, Arizona. Mr. Perez appears on behalf of himself and all other persons detained

27 pretrial at the Maricopa County jails.

28

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1

17. Plaintiff Tamara Ochoa is a 27-year-old woman who has been in pretrial

2 custody since August 16, 2019, and is housed at the Estrella Jail. She is charged with crimes

3 related to drug possession as well as identity theft. She has not been convicted of the crimes

4 for which she is imprisoned and is presumed innocent. If released during the pendency of

5 her criminal proceeding, she would be able to self-quarantine and practice other

6 recommended measures, including social distancing, at her boyfriend’s home in Phoenix,

7 Arizona. Ms. Ochoa appears on behalf of herself and all other persons detained pretrial at

8 the Maricopa County jails.

9

18. Plaintiff Puente Human Rights Movement (“Puente”) is a grassroots nonprofit

10 membership organization based in Phoenix, Arizona. Its mission is to promote justice,

11 human dignity, nonviolence and interdependence. Its membership is made up of hundreds

12 of individuals across Arizona, including undocumented and mixed status immigrant

13 households, people who have been incarcerated as well as their impacted families, and

14 youth members. It aims to develop, educate, and empower immigrant communities, to

15 enhance the quality of life of immigrants, and to advocate on behalf of immigrants. Puente

16 provides free English classes, media trainings, know-your-rights workshops, health and

17 wellness training, educational programs for children, and other services to the community.

18 Puente’s work also includes programs and advocacy on behalf of detained people across

19 Arizona. As a result of Defendants’ failure to adequately protect individuals incarcerated

20 at the Maricopa County jails from the dangers of COVID-19, Puente has launched a full-

21 fledged public campaign to support incarcerated people at the Maricopa County jails and

22 raise public awareness about COVID-19 for incarcerated people and their families. This

23 effort has come at the expense of other programming, requiring Puente to divert resources

24 to this campaign while scaling down other campaigns. Indeed, in mobilizing this campaign,

25 Puente has expended significant time and resources, including by setting up a hotline to

26 monitor conditions inside of the jails and respond to the concerns of incarcerated people

27 and their families, organizing regular protests, creating petitions, drafting letters to public

28 officials, and producing communications materials. Absent Defendants’ failure to protect

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1 the health of incarcerated persons at the Maricopa County jails, Puente would not need to

2 spend these resources and cut back other programming and staff to support incarcerated

3 people during this pandemic. Puente seeks declaratory and injunctive relief in this lawsuit

4 to protect the rights of people incarcerated in the Maricopa County jails.

5

19. Respondent-Defendant Paul Penzone is the Maricopa County Sheriff.

6 Pursuant to A.R.S. §§ 11-441(A)(5) and 31-101, Sheriff Penzone’s duty is to oversee the

7 Maricopa County jails and the incarcerated persons in the jails. Sheriff Penzone is the final

8 policymaker for running and administering the Maricopa County jails. Sheriff Penzone has

9 custody over all Plaintiffs. He is sued in his official capacity only.

10

20. Respondent-Defendant Maricopa County is a county in Arizona where the

11 five at-issue jails are located. Plaintiffs reside in Maricopa County jails operated and

12 maintained by Maricopa County. Maricopa County is a public entity for purposes of the

13 ADA. Maricopa County is a recipient of federal financial assistance for the purposes of

14 Section 504.

15

21. As the facts set forth below demonstrate, Sheriff Penzone and Maricopa

16 County have a policy, practice, or custom of subjecting incarcerated persons in the jails to

17 unconstitutional conditions and/or ratifying constitutional deprivations.

18

THE CLASSES AND SUBCLASSES

19

22. Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of Civil

20 Procedure on behalf of themselves and classes of similarly situated individuals. This action

21 is brought on behalf of two classes of incarcerated persons at the Maricopa County jails—

22 (1) the Pretrial Class and (2) the Post-Conviction Class—and four subclasses—(a) the

23 Pretrial Medically Vulnerable Subclass, (b) the Pretrial Disability Subclass, (c) the Post-

24 Conviction Medically Vulnerable Subclass, and (d) the Post-Conviction Disability

25 Subclass.

26

23. Plaintiffs Jason Fenty, Brian Stepter, Douglas Crough, Anthony Scroggins,

27 Dale Perez, and Tamara Ochoa each seek to represent all current and future people in

28 pretrial detention at the Maricopa County jails (“Pretrial Class”), including a subclass of

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1 persons who, by reason of age or medical condition, are particularly vulnerable to injury or

2 death if they were to contract COVID-19 (“Pretrial Medically Vulnerable Subclass”).

3 Additionally, within the Pretrial Medically Vulnerable Subclass is a subclass of all persons

4 who are medically vulnerable because of a disability as defined by federal disability rights

5 laws (the “Pretrial Disability Subclass”).

6

24. The “Pretrial Medically Vulnerable Subclass” is defined as all current and

7 future people detained at the Maricopa County jails who are aged 50 years or older as well

8 as those of any age with impaired immunity, including chronic diseases and health

9 conditions that place them at heightened risk of severe illness or death from COVID-19,

10 such as (a) lung disease, (b) heart disease, (c) chronic liver or kidney disease (including

11 hepatitis and dialysis patients), (d) diabetes, (e) hypertension, (f) compromised immune

12 systems (such as from cancer, HIV, or autoimmune disease), (g) blood disorders (including

13 sickle cell disease), (h) developmental disability, (i) severe obesity, and/or (j) moderate to

14 severe asthma.5

15 5 Coronavirus disease (COVID-19) advice for the public: Myth Busters, WORLD HEALTH

16 ORG. (accessed June 15, 2020), https://cutt.ly/dtEiCyc (“Older people, and people with

pre-existing medical conditions (such as asthma, diabetes, heart disease) appear to be

17 more vulnerable to becoming severely ill with the virus.”); Report of the WHO-China

Joint Mission on Coronavirus Disease 2019 (COVID-19), WORLD HEALTH ORG. (Feb.
18 28, 2020), https://cutt.ly/duxRQue (finding fatality rates for patients with COVID-19 and

19

co-morbid conditions to be: “13.2% for those with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for

20

cancer”); People Who Are at Higher Risk for Severe Illness, CTRS. FOR DISEASE CONTROL & PREVENTION (accessed June 5, 2020), https://cutt.ly/tyVVKf9; Safiya Richardson et al.,

21

Presenting Characteristics, Comorbidities, and Outcomes Among 5700 Patients Hospitalized With COVID-19 in the New York City Area, JAMA (Apr. 22, 2020),

22 https://cutt.ly/LyVVZ8m (examining 5,700 persons hospitalized for COVID-19 and
finding the most common comorbidities were hypertension (3,026; 56.6%), obesity

23 (1,737; 41.7%), and diabetes (1,808; 33.8%)); People with Developmental and Behavioral

Disorders, CTRS. FOR DISEASE CONTROL & PREVENTION (accessed June 15, 2020),

24 https://cutt.ly/PyVVVkk (“Some people with developmental or behavioral disorders may

have difficulties accessing information, understanding or practicing preventative
25 measures, and communicating symptoms of illness.”); CS 316182-A, Interim Guidance on

26

Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, CTRS. FOR DISEASE CONTROL & PREVENTION (Mar. 27, 2020),

27

https://cutt.ly/LyVWfed (“Note that incarcerated/detained populations have higher prevalence of infectious and chronic diseases and are in poorer health than the

28 general population, even at younger ages.”).

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1

25. The “Pretrial Disability Subclass” is defined as all current and future pretrial

2 detainees who are people with disabilities as defined under the ADA and Section 504, and

3 whose disabilities put them at increased risk of serious illness or death if they contract

4 COVID-19. The Disability Pretrial Subclass includes all members of the Pretrial Medically

5 Vulnerable Subclass except those vulnerable solely on the basis of age or obesity.

6

26. Plaintiffs Fenty, Stepter, Crough, Scroggins, Perez, and Ochoa can represent

7 the Pretrial Class because each Plaintiff is currently housed at the Maricopa County jails in

8 pretrial custody. Plaintiffs Fenty, Stepter, Crough, and Scroggins can represent the Pretrial

9 Medically Vulnerable Subclass because each Plaintiff is over the age of 50 and/or has been

10 diagnosed with a qualifying medical condition. Plaintiffs Fenty, Stepter, Crough, and

11 Scroggins can also represent the Pretrial Disability Subclass, as each is a person with a

12 disability as defined under the ADA and Section 504.

13

27. Plaintiffs Reason, Tequida, and Avenenti each seek to represent a class of all

14 current and future people in post-conviction detention at the Maricopa County jails (“Post-

15 Conviction Class”), including a subclass of persons who, by reason of age or medical

16 condition, are particularly vulnerable to injury or death if they were to contract COVID-19

17 (“Post-Conviction Medically Vulnerable Subclass”). Additionally, within the Post-

18 Conviction Medically Vulnerable Subclass is a subclass of all persons who are medically

19 vulnerable because of a disability as defined by federal disability rights laws (the “Post-

20 Conviction Disability Subclass”).

21

28. The “Post-Conviction Medically Vulnerable Subclass” is defined as all

22 current and future people in post-conviction detention at the Maricopa County jails who are

23 aged 50 years or older or who have medical conditions that place them at heightened risk

24 of severe illness or death from COVID-19, such as (a) lung disease, (b) heart disease, (c)

25 chronic liver or kidney disease (including hepatitis and dialysis patients), (d) diabetes, (e)

26 hypertension, (f) compromised immune systems (such as from cancer, HIV, or autoimmune

27 disease), (g) blood disorders (including sickle cell disease), (h) developmental disability (i)

28 severe obesity, and/or (j) moderate to severe asthma.

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1

29. The “Post-Conviction Disability Subclass” is defined as all current and future

2 post-conviction detainees who are people with disabilities as defined under the ADA and

3 Section 504, and whose disabilities put them at increased risk of serious illness or death if

4 they contract COVID-19. The Post-Conviction Disability Subclass includes all members

5 of the Post-Conviction Medically Vulnerable Subclass except those vulnerable solely on

6 the basis of age or obesity.

7

30. Plaintiffs Reason, Tequida, and Avenenti can represent the Post-Conviction

8 Class because each Plaintiff is currently housed at the Maricopa County jails in post-

9 conviction custody. Plaintiffs Reason and Tequida can represent the Post-Conviction

10 Medically Vulnerable Subclass because each Plaintiff is over the age of 50 and/or has a

11 qualifying medical condition. Plaintiffs Reason and Tequida can also represent the Post-

12 Conviction Disability Subclass, as each is a person with a disability as defined under the

13 ADA and Section 504.

14

31. This action has been brought, and may properly be maintained, as a class

15 action under federal law. It satisfies the numerosity, commonality, typicality, and adequacy

16 requirements for maintaining a class action under Federal Rule of Civil Procedure 23(a),

17 and it satisfies the requirements for certification under Rule 23(b)(2) or, in the alternative,

18 23(b)(1).

19

32. Joinder is impracticable because (1) the class members are numerous, (2) the

20 classes include future members, and (3) the class members are incarcerated, rendering their

21 ability to institute individual lawsuits limited, particularly in light of the conditions at the

22 Maricopa County jails and generally reduced legal visitation and court closures instituted

23 by Maricopa County to address COVID-19 concerns.

24

33. There are at least 50 current people detained and an unknowable number of

25 potential future people who will be detained in the proposed Pretrial Class. There are at

26 least 50 current people detained post-conviction and an unknowable number of potential

27 future people who will be detained post-conviction in the proposed Post-Conviction Class.

28 There are at least 50 people in each subclass of the proposed Pretrial and Post-Conviction

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1 Classes, including over 300 people who are over the age of 50. People in jails have higher

2 rates of chronic health conditions than people in the general population. According to the

3 Bureau of Justice Statistics, it is estimated that 39.8 percent of people in jail have a chronic

4 health condition, so it is likely there are hundreds if not thousands of individuals in both

5 subclasses.6

6

34. Common questions of law and fact exist as to all members of the proposed

7 classes and subclasses. Questions of fact common to all proposed class members include

8 whether the conditions in the Maricopa County jails expose them to an unreasonable risk

9 of contracting COVID-19. Questions of fact and law common to all members of the

10 subclasses include whether the conditions in the Maricopa County jails expose them to an

11 unreasonable risk of serious illness, injury, or death and whether the Maricopa County jails’

12 policies and practices discriminate against people with disabilities in violation of federal

13 disability rights laws. Questions of law common to all proposed class and subclass

14 members include what relief is necessary to mitigate the risks posed by their confinement

15 in the jails.

16

35. Plaintiffs’ claims are typical of the class and the subclass members’ claims.

17

36. Plaintiffs have the requisite personal interest in the outcome of this action and

18 will fairly and adequately protect the interests of the classes and subclasses.

19

37. Plaintiffs have no interests adverse to the interests of the proposed classes and

20 subclasses.

21

38. Plaintiffs retained pro bono counsel with experience and success in the

22 prosecution of civil rights litigation.

23

39. Counsel for Plaintiffs know of no conflicts among proposed class members

24 or between counsel and proposed class members.

25

26 6 See Laura M. Maruschack et al., Medical Problems of State and Federal Prisoners and

27

Jail Inmates, 2011-12, p. 21, U.S. DEPT. OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, BUREAU OF JUSTICE STATISTICS (Feb. 2015),

28 https://www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf.

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1

40. Defendants have acted on grounds generally applicable to all proposed class

2 members, and this action seeks declaratory and injunctive relief. Plaintiffs therefore seek

3 class certification under Rule 23(b)(2).

4

41. In the alternative, the requirements of Rule 23(b)(1) are satisfied, because

5 prosecuting separate actions would create a risk of inconsistent or varying adjudications

6 with respect to individual class members that would establish incompatible standards of

7 conduct for the party opposing the proposed classes.

8

FACTUAL ALLEGATIONS

9 I. COVID-19 Poses a Significant Risk of Serious Illness, Injury, and Death.

10

42. The novel coronavirus that causes COVID-19 has led to a global pandemic.

11 There are more than 7.8 million reported COVID-19 cases throughout the world, of which

12 more than 2 million are in the United States.7

13

43. More than 431,000 individuals worldwide have died as a result of COVID-

14 19, including more than 115,000 in the United States.8 These numbers are growing, with

15 almost 137,000 new cases worldwide in the 24-hour period between June 13 and June 14

16 alone.9 Notwithstanding that Arizona ranks 43rd out of the 50 states, D.C. and Puerto Rico

17 in the number of tests completed per 1000 people, COVID-19 positive cases in Arizona

18 increased from one as of March 2nd, 2020 to 36,705 as of June 15, 2020, with over half of

19 them in Maricopa County.10 In total, 1,194 people have died in Arizona due to COVID-19,

20

21

22 7 WHO Coronavirus Disease (COVID-19) Dashboard, WORLD HEALTH ORG. (June 15,

23 2020), https://covid19.who.int/.
8 Id.
24 9 Id.

25 10 See Data Dashboard: Summary, ARIZONA DEPT. OF HEALTH SERVICES (accessed June

26

15, 2020), https://cutt.ly/muxkCB4; Data Dashboard: Confirmed COVID-19 Cases by Day, ARIZONA DEPARTMENT OF HEALTH SERVICES (accessed June 15, 2020),

27

https://www.azdhs.gov/preparedness/epidemiology-disease-control/infectious-diseaseepidemiology/covid-19/dashboards/index.php; State Health Facts: COVID-19 Testing,

28 KAISER FAMILY FOUNDATION (accessed June 15, 2020), https://cutt.ly/zuxzHn7.

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1 and 557 people have died in Maricopa County alone.11 Hospitals in Arizona are

2 increasingly stretched thin.12

3

44. On March 11, 2020, Governor Doug Ducey declared a state of emergency in

4 Arizona due to COVID-19.13 Governor Ducey’s most recent executive order directs

5 individuals to socially distance, recommends that the medically vulnerable continue to

6 shelter at home when possible, and requires businesses that are reopening to implement

7 policies that ensure physical distancing and limit congregations to less than 10 people where

8 feasible.14

9

45. The Maricopa County Board of Supervisors also issued an emergency

10 declaration related to COVID-19 on March 18, 2020.15

11

46. Importantly, the county and state-wide emergency—while very real and very

12 pressing—pales in comparison to the emergency within the Maricopa County jails. Indeed,

13 the rate of cases amongst the tested population at the Maricopa County jails is five times

14 higher than the rate across Maricopa County. Whereas county-wide 6.6 percent of those

15

16

17 11 See Data Dashboard: COVID-19 Deaths, ARIZONA DEPARTMENT OF HEALTH

18 SERVICES (accessed June 15, 2020), https://cutt.ly/SuvyYvc.
12 See Kristina Fiore, Banner Health Sounds Alarms on COVID Crisis in Arizona,

19 MEDPAGETODAY (June 11, 2020), https://cutt.ly/AuvyWmX; Hospital Bed Usage &

Availability, ARIZONA DEPARTMENT OF HEALTH SERVICES (accessed June 6, 2020),

20 https://www.azdhs.gov/preparedness/epidemiology-disease-control/infectious-disease-

epidemiology/covid-19/dashboards/index.php (reporting that 76% of ICU beds and 80%
21 of inpatient beds in Arizona were in use); Stephanie Innes, Arizona's largest health system

22

reaches capacity on ECMO lung machines as COVID-19 cases in the state continue to climb, AZ REPUBLIC (June 6, 2020) (reporting that Arizona is experiencing a spike in

23

COVID-19 cases leading to record highs in ICU and ventilator use and the largest health system in the state reached capacity for ventilators), https://cutt.ly/0uvyk1d.

24 13 Declaration of State of Emergency by the Governor of the State of Arizona, OFFICE OF

25

THE GOVERNOR OF ARIZONA (Mar. 11, 2020), https://azgovernor.gov/sites/default/files/declaraton_0.pdf.

26 14 Executive Order 2020-36, Stay Healthy, Return Smarter, Return Stronger, STATE OF
ARIZONA (May 12, 2020), https://cutt.ly/puvySWW.
27 15 Proclamation of Local Emergency Maricopa County, MARICOPA COUNTY BOARD OF
28 SUPERVISORS (March 18, 2020), https://cutt.ly/0y3xvQM.

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1 tested for COVID-19 have tested positive,16 33 percent of those tested for COVID-19

2 among the Maricopa County jail population have tested positive as of June 9, 2020.17

3

47. The rapid rate of spread inside the close quarters of the Maricopa County jails

4 is the result of the virus being highly contagious and known to spread from person to person

5 through respiratory droplets, close personal contact, and from contact with contaminated

6 surfaces and objects.18

7

48. A high percentage of individuals with COVID-19 are either asymptomatic or

8 pre-symptomatic—meaning they can rapidly yet unknowingly spread the virus to others

9 before developing any symptoms themselves.19

10

49. Since COVID-19 spreads silently among people who do not show symptoms,

11 universal testing in correctional facilities to identify COVID-19 infections early—even

12 among individuals experiencing no symptoms—and medically isolating all individuals

13 infected with COVID-19 are key to preventing COVID-19 from spreading.

14

50. Other prison systems throughout the country have recognized the particular

15 risks to incarcerated persons and staff alike of COVID-19 spread and offered universal or

16 mass testing of all incarcerated persons in correctional facilities, finding as a result that the

17

18

19

20 16 Data Dashboard: Deaths, ARIZONA DEPARTMENT OF HEALTH SERVICES (accessed June
15, 2020), https://www.azdhs.gov/preparedness/epidemiology-disease-control/infectious-
21 disease-epidemiology/covid-19/dashboards/index.php.

22 17 Lauren Castle, Maricopa County considers mass testing in jails after confirmed

COVID-19 cases spike, AZ CENTRAL (June 10, 2020),

23 https://www.azcentral.com/story/news/local/phoenix/2020/06/10/maricopa-county-

considers-mass-testing-jails-after-confirmed-covid-19-cases-spike-aclu/5334150002/.
24 18 Interim Infection Prevention and Control Recommendations for Patients with Suspected

25 or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings, CTRS. FOR

DISEASE CONTROL & PREVENTION (May 18, 2020), https://cutt.ly/ztRAo0X.

26 19 Roz Plater, As Many as 80 Percent of People with COVID-19 Aren’t Aware They Have

27

the Virus, HEALTHLINE (May 28, 2020), https://cutt.ly/uyVOSi7 (“In [a Journal of the American Medical Association] study, researchers reported that 42 percent of people who

28 tested positive for COVID-19 were without symptoms.”).

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1 virus was far more widespread than they had identified when simply testing based on

2 symptoms or direct contact with persons who were known to have been infected.20

3

51. Once contracted, COVID-19 can cause severe damage to lung tissue,

4 including a permanent loss of respiratory capacity, and it can damage tissues in other vital

5 organs, such as the heart and liver.21

6

52. People who are 50 years of age and older face a greater risk of serious illness

7 or death from COVID-19.22 For example, data collected from 14 states showed that

8 COVID-19-associated hospitalizations in the United States are highest among older adults,

9 with the jump in increased rates of hospitalizations beginning at ages 50-64.23 In April, a

10 study showed that rates of hospitalization for COVID-19 infections jumped significantly at

11 age 50: while the hospitalization rate was 2.5% for adults aged 18-49, it was three times as

12 high, at 7.4%, for adults aged 50-64.24

13

53. People of any age who have certain disabilities, defined by federal law,

14 including lung disease, heart disease, chronic liver or kidney disease (including hepatitis

15 and dialysis patients), diabetes, hypertension, compromised immune systems (such as from

16 cancer, HIV, or autoimmune disease), blood disorders (including sickle cell disease),

17 developmental disabilities, severe obesity and moderate to severe asthma, face an elevated

18 risk from COVID-19.25

19

20 20 Cart Aspinwall, These Prisons Are Doing Mass Testing For COVID-19—And Finding
Mass Infections, MARSHALL PROJECT (April 24, 2020), https://cutt.ly/vuxm8sM.
21 21 See Coronavirus Disease 2019 (COVID-19): Clinical Care Guidance, CTRS. FOR 22 DISEASE CONTROL & PREVENTION (June 2, 2020), https://cutt.ly/etRPVRl.

23

22 Xianxian Zhao, et al., Incidence, Clinical Characteristics and Prognostic Factor of Patients with COVID-19: A Systematic Review and Meta-Analysis, MEDRXIV (Mar. 20,

24 2020), https://cutt.ly/etRAkmt.

23 Shika Garg et al., Hospitalization Rates and Characteristics of Patients Hospitalized
25 with Laboratory-Confirmed Coronavirus Disease 2019—COVID-NET, 14 States, March

26

1–30, 2020, CTRS. FOR DISEASE CONTROL & PREVENTION MORBIDITY AND MORTALITY WEEKLY REPORT, Vol. 69, No. 15 458 (April 17, 2020), https://cutt.ly/jt4nzXp.

27 24 Id.

28 25 See supra, note 5.

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1

54. COVID-19 patients in higher-risk categories who develop serious illness will

2 need advanced support, including access to specialized equipment (including ventilators

3 and dialysis machines, which are in limited supply), and entire teams of care providers.

4 Critical COVID-19 patients may require 1:1 or 1:2 nurse-to-patient ratios, respiratory

5 therapists, and intensive care physicians. The drastic measures implemented by government

6 officials since March are meant to “flatten the curve” of the spread of the disease, i.e. to

7 ensure that health care systems are not overwhelmed by too many serious COVID-19 cases

8 at once.

9

55. In serious cases, COVID-19 causes acute respiratory disease syndrome

10 (“ARDS”), which is life-threatening: even with proper medical care, individuals with

11 ARDS have a 30% mortality rate.26 And even in non-ARDS cases, COVID-19 can severely

12 damage lung tissue, which requires an extensive period of rehabilitation, and in some cases,

13 causes permanent loss of breathing capacity.27 COVID-19 may also target the heart,

14 causing a medical condition called myocarditis, or inflammation of the heart muscle.

15 Myocarditis can reduce the heart’s ability to pump.28 This reduction can lead to rapid or

16 abnormal heart rhythms in the short term, and heart failure limiting a person’s capacity to

17 work and exercise in the long term.

18

56. COVID-19 can also trigger an over-response of the immune system and result

19 in widespread damage to other organs, including permanent injury to the kidneys.29

20 Complications from COVID-19 can manifest at an alarming pace. Patients can show the

21

22

23

26 Letter from Faculty at Johns Hopkins School of Medicine, School of Nursing, and Bloomberg School of Public Health to Hon. Larry Hogan, Gov. of Maryland (Mar. 25,

24 2020), https://cutt.ly/stERiXk.

25

27 Panagis Galiatsatos, What Coronavirus Does to the Lungs, JOHNS HOPKINS MED. (Apr. 13, 2020), https://cutt.ly/PyVsWxP.

26 28 Erin Donnelly Michos, Can Coronavirus Cause Heart Damage?, JOHNS HOPKINS MED.
(Apr. 24, 2020), https://cutt.ly/KyVsnmf.
27 29 C. John Sperati, Coronavirus: Kidney Damage Caused by COVID-19, JOHNS HOPKINS
28 MED. (May 14, 2020), https://cutt.ly/EyVscWm.

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1 first symptoms of infection in as little as two days after exposure, and their condition can

2 seriously deteriorate in as little as five days or sooner.30

3

57. Younger and healthier people are not immune. Some who contract COVID-

4 19 will have severe cases and require supportive care, which includes supplemental oxygen,

5 positive pressure ventilation, and in extreme cases, extracorporeal mechanical

6 oxygenation.31

7

58. There is currently no vaccine against COVID-19, nor is there any established

8 medical treatment for COVID-19.32

9

59. The need for care, including intensive care, and the likelihood of death, is

10 much higher from COVID-19 infection than from influenza. According to recent estimates,

11 the fatality rate of people infected with COVID-19 is about ten times higher than a severe

12 seasonal influenza, even in advanced countries with highly effective health care systems.

13 For people in the highest risk populations, the mortality rate of COVID-19 infection is about

14 13.2 percent.

15

60. Patients who do not die from serious cases of COVID-19 may face prolonged

16 recovery periods, including extensive rehabilitation from neurologic damage, loss of digits,

17 and loss of respiratory capacity.

18

61. Social distancing—deliberately keeping at least six feet of space between

19 persons to avoid spreading illness33—and a vigilant hygiene regimen, including frequent

20

21 30 See Interim Clinical Guidance for Management of Patients with Confirmed

22

Coronavirus Disease (COVID-19), CTRS. FOR DISEASE CONTROL & PREVENTION (June 2, 2020), https://cutt.ly/etRPVRl.

23 31 Lara S. Shekerdemian, Nabihah R, Mahmood, Katie K., et al., Characteristics and
Outcomes of Children with Coronavirus Disease 2019 (COVID-19) Infection Admitted to
24 US and Canadian Pediatric Intensive Care Units, JAMA PEDIATRICS (May 11, 2020), 25 https://jamanetwork.com/journals/jamapediatrics/fullarticle/2766037.
32 Coronavirus, WORLD HEALTH ORG. (accessed June 4, 2020), https://cutt.ly/ztWyf7e
26 (“At this time, there are no specific vaccines or treatments for COVID-19.”).

27

33 CS 316182-A, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, CTRS. FOR DISEASE CONTROL &

28 PREVENTION (Mar. 23, 2020), https://cutt.ly/LyVWfed.

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1 hand-washing, use of alcohol-based hand sanitizers, frequent cleaning and disinfecting of

2 any surfaces touched by any person, and the use of personal protective equipment (“PPE”)

3 such as masks, are the only known effective measures for protecting against transmission

4 of COVID-19.34

5

62. While hand washing and disinfecting surfaces are advised, social

6 distancing—remaining physically separated from known or potentially infected

7 individuals—is the main strategy to prevent infection.

8 II. 9 10

The Maricopa County Jails Are in the Midst of an Explosion of COVID-19 Cases Because of Defendants’ Failure to Take Reasonable Steps to Protect Those in the Jails, Which Puts All County Residents at Risk.
63. Persons incarcerated at the Maricopa County jails face a particularly acute

11 threat of infection, illness, permanent injury, and death from COVID-19. This is because

12 the Maricopa County jails are breeding grounds for infectious diseases, due to such factors

13 as close quarters that hinder social distancing; shared cells, bathrooms, telephones, eating

14 spaces, and common areas; high rates of turnover and mixing, both among the detained

15 population and between detained persons and staff, who may be infected by persons outside

16 the facility; poor ventilation; inadequate access to proper and sufficient hygiene supplies;

17 insufficient cleaning and access to cleaning supplies; and substandard medical services.

18

64. In two weeks, six positive cases in the Maricopa County jails have exploded

19 to 313.35 Put another way, the spike in the number of confirmed cases of COVID-19 in the

20 Maricopa County jails not only increased more than 5,000 percent in two weeks, but now

21

22

23

24 34 Coronavirus Disease 2019 (COVID-19): Protect Yourself, CTRS. FOR DISEASE

25 CONTROL & PREVENTION (accessed June 4, 2020), https://cutt.ly/GyVELfw.

26

35 MCSO jails have more COVID-19 cases than all Arizona prisons, THE ASSOCIATED PRESS (June 12, 2020), https://ktar.com/story/3276059/mcso-jails-have-more-covid-19-

27

cases-than-all-arizona-prisons/; Correctional Health Services and MCSO Respond to a Rise in COVID-19 Cases in County Jails, MARICOPA COUNTY NEWSROOM (June 4, 2020),

28 https://www.maricopa.gov/CivicAlerts.aspx?AID=1399.

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1 eclipses the “252 confirmed cases among the nearly 41,000 inmates in Arizona’s [state-run]

2 prisons,” even though the state-wide prison population is nearly ten-times bigger.36

3

65. The exponential growth of COVD-19 cases comes despite Maricopa County

4 jails’ purported implementation of a COVID-19 policy under Standard Operating Procedure

5 (“SOP”) J-B-02-023. The policy itself fails to meet the most basic public health guidelines

6 and, even in its most rudimentary form, is not reliably implemented in the jails. Neither the

7 Sheriff nor the County has adequately supervised jail staff to ensure compliance with public

8 health guidance to address the risk of COVID-19 transmission, or even with this inadequate

9 policy. As a result, Plaintiffs and other people detained at the Maricopa County jails live

10 under an ongoing threat of contracting a potentially fatal infection, as they are prevented

11 from protecting themselves from contracting and falling ill with the virus.

12

66. Cognizant of the heightened risks of COVID-19 in custodial settings,

13 the Centers for Disease Control and Prevention (“CDC”) issued specific guidance on March

14 23, 2020 for dealing with COVID-19 in correctional facilities, including local jails (the

15 “CDC Guidelines”).37 The initial CDC Guidelines acknowledge that incarcerated people

16 are often forced to exist “within congregate environments” that “heighten[] the potential for

17 COVID-19 to spread once introduced[,]” especially given that “[t]here are many

18 opportunities for COVID-19 to be introduced into a correctional or detention facility,”

19 including “daily staff ingress and egress” as well as “high turnover” of “admit[ted] new

20 entrants.”38 In light of these concerns, the CDC Guidelines recommend that detention

21 facilities “explore strategies to prevent over-crowding of correctional and detention

22

23

24 36 MCSO jails have more COVID-19 cases than all Arizona prisons, THE ASSOCIATED

25

PRESS (June 12, 2020), https://ktar.com/story/3276059/mcso-jails-have-more-covid-19cases-than-all-arizona-prisons/.

26 37 CS 316182-A, Interim Guidance on Management of Coronavirus Disease 2019
(COVID-19) in Correctional and Detention Facilities, CTRS. FOR DISEASE CONTROL &
27 PREVENTION (Mar. 23, 2020), https://cutt.ly/LyVWfed.

28 38 Id.

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1 facilities during a community outbreak.”39 On May 6, 2020, after 86 percent of jurisdictions

2 reported at least one laboratory-confirmed case of COVID-19 from a total of 420

3 correctional and detention facilities, the CDC published a report entitled “COVID-19 in

4 Correctional and Detention Facilities — United States, February–April 2020.” The Report

5 advises that: “Prompt identification of COVID-19 cases and consistent application of

6 prevention measures, such as symptom screening and quarantine, are critical to protecting

7 incarcerated and detained persons and staff members.”40

8

67. The CDC Guidelines also recommend a number of steps that correctional

9 facilities can take to attempt to mitigate the risk of the spread of the virus.41 These include:

10

a. Perform pre-intake screening and temperature checks for all new entrants,

11

“enforce increased space between individuals” in waiting areas during intake,

12

and “consider quarantining all new intakes for 14 days before they enter the

13

facility’s general population,” making sure to avoid mixing people in this

14

routine intake cohorted population with people who might otherwise be

15

quarantined due to exposure to COVID-19;

16

b. Adopt and enforce social distancing strategies to increase space between

17

individuals, including by rearranging bunking to ensure that beds are at a

18

minimum six feet apart in all directions, increasing space in lines and waiting

19

areas, staggering meals and rearranging seating so that detainees are sitting

20

on only one side of the table and are separated with adequate space;

21

c. Avoid unnecessary movements of incarcerated persons and staff, including

22

by “rearrang[ing] scheduled movements to minimize mixing of individuals

23

24

25 39 Id.
26 40 COVID-19 in Correctional and Detention Facilities — United States, February–April
2020, CTRS. FOR DISEASE CONTROL & PREVENTION MORBIDITY & MORTALITY WKLY.
27 REP. (May 6, 2020), https://cutt.ly/4yVWTOE.
28 41 CTRS. FOR DISEASE CONTROL & PREVENTION, supra note 33.

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1

from different housing areas” and “restricting movement in and out of the

2

facility”;

3

d. Implement “intensified cleaning and disinfecting procedures” that clean and

4

disinfect high-touch surfaces and objects “[s]everal times per day,” and

5

“[e]nsure adequate supplies to support intensified cleaning and disinfection

6

practices”;

7

e. “Thoroughly clean and disinfect all areas where the confirmed or suspected

8

COVID-19 case spent time,” and ensure that people “performing cleaning

9

wear recommended PPE”;

10

f. “[E]nsure that incarcerated/detained individuals receive medical evaluation

11

and treatment at the first signs of COVID-19 symptoms,” including an

12

evaluation “to determine whether COVID-19 testing is indicated” and

13

medically isolate persons known or suspected to have COVID-19;

14

g. Quarantine close contacts of confirmed or suspected COVID-19 cases, with

15

close monitoring of symptoms and temperature checks twice per day,

16

restrictions of quarantined individuals from leaving the facility, and both staff

17

and incarcerated persons wearing face masks at all times if feasible and where

18

individual quarantine space is not available;

19

h. When quarantining close contacts of confirmed or suspected COVID-19 cases

20

in groups, “be especially mindful of those who are at higher risk of severe

21

illness from COVID-19. Ideally, they should not be cohorted with other

22

quarantined individuals. If cohorting is unavoidable, make all possible

23

accommodations to reduce exposure risk for the higher-risk individuals. (For

24

example, intensify social distancing strategies for higher-risk individuals.)”;

25

i. Suspend co-pays for incarcerated people seeking medical evaluation for

26

respiratory symptoms;

27

j. Ensure sufficient stocks of hygiene and cleaning supplies, no-cost access to

28

soap (liquid soap where possible), including tissues; paper towels; alcohol-

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1

based hand sanitizer; cleaning supplies effective against the coronavirus; and

2

recommended personal protective equipment like face masks, disposable

3

medical gloves, and N95 respirators;

4

k. Conduct verbal symptom check and temperature check for all staff daily upon

5

entry into the facility; and

6

l. Provide “clear information” to incarcerated persons and staff about COVID-

7

19, including by posting signage throughout the facility communicating

8

COVID-19 symptoms, proper procedures for incarcerated persons/staff

9

experiencing symptoms, and hand hygiene instructions, educating

10

incarcerated persons/staff about the presence of COVID-19 cases within a

11

facility and the need to increase social distancing and maintain hygiene

12

precautions, and training staff on “the need to enforce social distancing and

13

encourage hygiene precautions”.

14

68. The Maricopa County jails do not adequately provide the mitigation measures

15 that public health experts and the CDC recommend.

16

69. Specifically, Defendants’ failure to adopt and implement adequate policies

17 and procedures include:

18

Hazardous Intake Processes and Conditions

19

70. Persons taken into custody at the Maricopa County jails are at risk of

20 contracting COVID-19 from the moment they arrive.

21

71. Although average daily bookings at the Maricopa County jails have been

22 reduced in light of the pandemic, Maricopa County is still processing a large number of

23 people into the jails on a daily basis, with approximately 100-150 bookings per day.42

24

72. The Maricopa County jails describe their booking process as involving

25 property intake, medical screening, fingerprinting, photographing, and a warrants check,

26

27 42 Lauren Castle, Maricopa County considers mass testing in jails after confirmed 28 COVID-19 cases spike, AZ CENTRAL (June 10, 2020), https://cutt.ly/luxS6Gk.

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1 followed by a potential interview by Pretrial Services Agency and potential appearance at

2 Initial Appearance Court or before a Magistrate. The entire process of arrest, transfer to the

3 jail, and booking can take between 2-15 hours, and incarcerated persons must make their

4 first appearance before a magistrate within 24 hours.43

5

73. Defendants have not implemented effective and necessary measures to

6 address the risk of the spread of COVID-19 during booking, including a failure to

7 implement social distancing measures during processing. Indeed, after a rudimentary

8 screening process, individuals are then put in a holding “tank,” sometimes for more than a

9 day and a half, with anywhere between 20 and 40 people.

10

74. Individuals also sit shoulder to shoulder on a bench at various times, waiting

11 to be booked.

12

75. Few of the individuals in the “tank” receive masks.

13

76. Many detention officers do not wear masks during this process.

14

77. With the recent influx of arrestees—including 200 in a single night44—the

15 risks are multiplied.

16

78. Individuals admitted into the jails are not tested for COVID-19 upon their

17 arrival, unless they are showing a limited number of symptoms or report having had direct

18 contact with someone known to have tested positive for COVID-19.

19

79. The screening does not cover the full range of symptoms associated with the

20 virus, which also include tiredness, loss of taste or smell, and headache, as well as less

21 common symptoms including rash, nausea, vomiting, and diarrhea.45

22

23
43 Initial Appearance, MCSO (accessed May 27, 2020),
24 https://www.mcso.org/Victim/InitialAppearance.

25 44 Jessica Goodman, Police arrest 200 adults, 10 juveniles during Sunday protests in
Phoenix, CBS 5 (June 1, 2020), https://cutt.ly/LuxDDbP.

26 45 Coronavirus Disease 2019 (COVID-19) – Symptoms and Causes, MAYO CLINIC

27

(accessed June 4, 2020), https://cutt.ly/RyVTJFu; Coronavirus Disease 2019 (COVID-19) – Symptoms of Coronavirus, CTRS. FOR DISEASE CONTROL & PREVENTION (accessed May

28 13, 2020), https://cutt.ly/byVTCfo.

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1

80. Persons coming into jails with COVID-19 can be pre-symptomatic at intake

2 only to become symptomatic later during incarceration, or can even remain asymptomatic,

3 and nevertheless spread the virus to others.

4

81. Limiting testing to people who are symptomatic or who know they were in

5 contact with someone with COVID-19 prior to their incarceration fails to identify people

6 who may have COVID-19—and can infect other incarcerated persons and jail staff—but

7 are pre-symptomatic, asymptomatic, or were unaware that they had contact with someone

8 with COVID-19.

9

82. People who are not released and not identified at booking as either

10 symptomatic or having had contact with someone with COVID-19 prior to their

11 incarceration are then placed into a housing pod by classification. They are then supposed

12 to begin a 14-day cohorting period once the pod reaches a certain capacity.

13

83. As of late May, however, at least some newly admitted persons were being

14 assigned directly to housing units without having completed any cohorting period.

15

84. Without testing, the cohort group inherently mixes a group of people whose

16 COVID-19 status is unknown and who may be pre-symptomatic or asymptomatic spreaders

17 of COVID-19 with individuals who may not yet be infected. People with COVID-19 may

18 transmit the disease to non-infected members of the group at any time while cohorted

19 together, during the 14 days, and thus non-infected individuals may contract the virus and

20 become symptomatic or remain contagious after they have been placed into the general

21 population. Members of the cohort are not tested before being discharged from the intake

22 cohort unit.

23

85. The Maricopa County jails have also failed to prevent individuals in the

24 routine intake cohort from mixing with people outside the cohort. This includes mixing

25 people from the routine intake cohort during court transport with incarcerated persons who

26 are in quarantine for having had contact with infected individuals and who have not been

27 tested to determine if they are infected.

28

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1

86. Additionally, when people already detained in the jails have recently been

2 rebooked on new or different charges, they have been taken to the intake booking facility,

3 where they have spent up to 24 hours in close proximity to individuals undergoing initial

4 intake before being returned to their original unit within the jails. Upon return, jail staff

5 have not screened them for COVID-19.

6

Insufficient Social Distancing In General Population

7

87. Defendants have failed to implement or even attempt reasonable measures to

8 implement social distancing at the Maricopa County jails, and they have failed to make

9 reasonable and necessary modifications to practices, plans, or protocols to enable social

10 distancing. Indeed, social distancing is not occurring in any of the facilities with respect to

11 housing, meals, recreation, or any other aspect of life inside the Maricopa County jails.

12

88. Even with the reduction in the population of incarcerated individuals, the

13 Maricopa County jails still fail to comply with the CDC’s recommendation for people to

14 remain six feet apart at all times due to the way Defendants are currently choosing to house

15 the incarcerated.

16

89. In Towers Jail, approximately 45 persons are housed in each pod. At 4th

17 Avenue and Lower Buckeye, there are approximately 70 persons per pod, and at Estrella,

18 open dorms house up to 99 women. The pods house individuals in close quarters, well

19 under the distance of six feet apart that the CDC recommends. Within each pod, most

20 individuals share small cells with two or three persons per cell. Two or three bunk beds are

21 usually stacked less than six feet apart.

22

90. For example, individuals at Towers share a small cell with two other people.

23 The cell contains three beds, approximately two to three feet apart. At Lower Buckeye,

24 individuals share an approximately 6x10 feet cell with another person; their bunks are only

25 three-to-four feet apart. At Towers, a 6x12 feet cell is usually shared with two other

26 individuals. The three bunks in the cell are stacked on top of each another, approximately

27 three feet apart.

28

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1

91. At Saguaro, 10 beds are jammed into single rooms no bigger than 10x12 feet

2 in size. Social distancing is impossible in such close quarters.

3

92. At Estrella, women sleep in dormitories that house up to 99 women at a time,

4 with three-tiered bunks positioned so that they are in contact with each other, and so

5 separation from others can be only a matter of inches.

6

93. Although the Maricopa County jails may be below capacity, incarcerated

7 persons are sleeping in units that are nearly full, and staff make no effort to order bed

8 assignments that maximize or increase spacing.

9

94. Units are frequently on security override due to staffing shortages and are on

10 lockdown for count several times per day, which means that incarcerated persons are kept

11 at their beds inches from others, or in cells with cellmates without social distancing, for

12 extended periods of time.

13

95. When not in their cells, incarcerated persons use common spaces together,

14 sharing tables, telephones, video terminals, and showers, all within far less than six feet of

15 each other. Defendants do not stagger dayroom access, and shared day rooms are not large

16 enough to allow for the large number of people to maintain distance.

17

96. At meal time, meals are not staggered, which results in incarcerated persons

18 being forced to stand close to each other waiting in line for food, and having to sit close

19 together at crowded tables.

20

97. At the Lower Buckeye Jail, the same staff members who distribute the meals

21 travel from pod to pod within the jail, increasing the risk of transmission of the virus from

22 one unit to another. The dining area is often crowded. Mealtimes occur two times a day

23 and are not staggered, so individuals are forced to congregate together at the few communal

24 tables and chairs where individuals are able to eat.

25

98. The dining room at the 4th Avenue Jail has six tables with 4 chairs each, all

26 of which do not meet health guidelines for social distancing.

27

99. At Towers, each pod of 45 individuals are required to dine together, but

28 because there is only seating for 24 people, the tables are packed. In at least one unit at

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1 Towers, detention officers do not hand out sacks of food and instead have incarcerated

2 persons select a sack out of a large container with bare hands, allowing them to sometimes

3 return a sack they touched to obtain a different one. The containers with remaining sacks

4 that have been potentially touched by multiple people are then brought to other pods.

5

100. At Estrella, some of the tables are cafeteria style, with persons seated elbow-

6 to-elbow.

7

101. At Lower Buckeye, the eight tables seat eight persons each and are always

8 full at mealtimes.

9

102. Recreation spaces are packed, with detention officers doing nothing to

10 encourage or allow social distancing. At 4th Avenue, for example, there are 10 to 20 people

11 confined to a very small space during recreation. At Towers, multiple pods typically go to

12 recreation together at once, resulting in dozens of people crowded in a small space.

13 Detention officers conduct searches of all incarcerated persons on the way out for recreation

14 time, using gloves to check the bottoms of the individuals’ feet, the insides of their waist

15 bands, and the insides of their shirts. After searching one person, the officers do not

16 disinfect or switch gloves before checking the next person. At Lower Buckeye Jail, the

17 recreational space is about 15x20 feet. At Estrella, the majority of the women in a 70-

18 person dorm go out in a space that is about half the size of a basketball court.

19

103. Social distancing is not at all encouraged by the staff.

20

104. Incarcerated persons are also told to line up immediately next to each other

21 when jail staff come to housing units to distribute medications.

22

105. Similarly, incarcerated persons are transported between jails and to court in

23 vehicles with packed seating and no social distancing, regularly chained together, sitting

24 shoulder to shoulder without masks and without having their temperatures or vital signs

25 taken before transport. Incarcerated persons are also transported with others displaying

26 obvious symptoms of infection (such as coughing).

27

106. Once in the holding tanks at the courthouse, there is no social distancing.

28 Incarcerated persons are mixed with people from other units and, at times, other facilities,

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1 increasing the risk of the virus spreading throughout the jails. Few of the incarcerated

2 people are given masks or other PPE. After appearing in court, they are then transported

3 again in crowded vehicles without social distancing and returned to their pods.

4

Lack of Personal Protective Equipment (PPE) and Cleaning

5

107. Individuals incarcerated at the Maricopa County jails do not receive adequate

6 products to maintain proper hygiene, and there is no attempt by Defendants to ensure

7 adequate cleaning to prevent transmission of the virus.

8

108. The Lower Buckeye, 4th Avenue, Towers, and Estrella Jails all rely entirely

9 on incarcerated persons to clean facilities. Jail trustees (who are also incarcerated) travel

10 between jails and individual pods to clean showers once per week and rarely perform other

11 cleaning in the housing units.

12

109. The jails rely on incarcerated persons within their respective units to perform

13 all other cleaning, including common areas and individual cells. They are left to create—

14 or not— their own systems to organize who will do the cleaning and when, with no

15 supervision by jail staff to ensure that cleaning is done at all, let alone that it is done safely

16 and adequately to kill the virus. They are generally not provided with sufficient protective

17 equipment, such as gloves, to conduct such cleaning.

18

110. Incarcerated persons share numerous high-touch surfaces for which the jails

19 have not implemented any system to ensure that they are cleaned multiple times per day or

20 between uses.

21

111. Telephones—which are generally not six feet apart—are not wiped down

22 after each use.

23

112. At a pod in Lower Buckeye Jail, six telephones, three video phones, and six

24 showers are shared by approximately 70 detained persons without any regular cleaning.

25

113. At a pod in Towers, approximately 35 people share three telephones, two

26 video phones, and five showers. At 4th Avenue Jail, incarcerated persons in a unit can share

27 four telephones, four video phones and six showers.

28

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1

114. In Estrella, people regularly refill water bottles by placing them directly in

2 contact with the faucets on the sinks, but those surfaces are rarely cleaned.

3

115. In most units, individual tablets used for various functions, including email

4 and internet access, are distributed to incarcerated persons randomly on a daily basis but are

5 not cleaned overnight.

6

116. Incarcerated persons at all facilities also share high touch items such as tables,

7 chairs, and railings, without any provision by the jails to ensure they are regularly cleaned.

8

117. Twice a day, individuals in a unit are provided a 32 oz. bottle of watered-

9 down disinfectant—or in some instances, a citrus-scented disinfectant—and a bottle of glass

10 cleaner to be shared amongst them to clean the common surfaces of the entire unit and their

11 cells. In some units, officers typically provide two bottles of glass cleaner and no

12 disinfectant.

13

118. This insufficient supply runs out well before each member of the pod can use

14 it, and Maricopa County jail staff frequently refuse to provide additional supplies when

15 asked.

16

119. Although the disinfectant requires that it remain wet on a surface for 5-10

17 minutes in order to properly work, staff do not reliably instruct incarcerated persons of those

18 instructions and incarcerated persons often wipe off the disinfectant immediately after

19 applying. Detention officers do nothing to ensure proper use of the disinfectant.

20

120. Incarcerated persons are not given paper towels and instead clean with toilet

21 paper, sanitary napkins, or personal towels. Any available rags or towels that are used to

22 wipe down the various surfaces are laundered just once a week.

23

121. At Estrella, members of the cleaning crew are issued just one rag, which is

24 used to clean eight toilets and showers.

25

122. Individuals incarcerated at the Maricopa County jails also lack access to

26 sufficient personal hygiene products. No hand sanitizer is available, and neither are paper

27 towels. Incarcerated persons must use their bathing towel for all purposes.

28

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1

123. Incarcerated persons are given one set of clothes and towels for an entire

2 week, bed sheets are washed every other week, and blankets are laundered just once a month

3 or longer.

4

124. The post-COVID-19 cleaning routine remains identical to the pre-COVID-19

5 procedure.

6

125. No incarcerated person is required to wear a mask.

7

126. Incarcerated persons generally receive only one thin, disposable paper mask

8 each and are told it would be the only mask they would be given, even if their mask is lost,

9 soiled, or breaks. They are not given anything in which to store their masks to prevent them

10 from becoming soiled or damaged. Masks easily become dirty and soiled, leading them to

11 stop wearing masks, but jail staff have refused to provide new masks despite numerous

12 requests, and even after months of use.

13

127. Moreover, staff at the jails do not consistently wear masks. Even in units on

14 quarantine because they had held an incarcerated person who had tested positive for

15 COVID-19, guards often do not wear masks when having contact with the incarcerated

16 population.

17

Lack of Appropriate Safeguards Employed After Suspected and Known Infected

18 Persons are Identified and General Inadequacy of Testing

19

128. Maricopa County’s written policy, as of April 9, 2020, is that “COVID-19

20 testing is reserved for symptomatic patients, at provider discretion”46 and withholds testing

21 to asymptomatic incarcerated persons who had direct contact with other people who

22 contracted COVID-19. Rather than testing anyone who had direct contact with other people

23 who had been infected, the written policy calls for quarantining such incarcerated persons.

24

129. In practice, such asymptomatic people have not been quarantined

25 individually, but instead have been quarantined in groups. For example, if a person tests

26

27 46 SOP J-B-02-23, Management Plan for Novel/Coronavirus Disease (COVID-19), 28 C(f)(iii).

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1 positive in a pod, the entire pod is placed on quarantine. When testing is not conducted,

2 any asymptomatic people in the pod who contracted COVID-19 are not identified and

3 instead are left in the pod to potentially infect people who had not yet been infected, thereby

4 creating an unreasonable risk of multiplying the spread of the virus to all persons within the

5 pod.

6

130. More recently on June 5, the Maricopa County jails’ Medical Director stated

7 to the media that the county is now also testing asymptomatic direct contacts of people who

8 have tested positive for COVID-19.47 However, this has not actually been implemented.

9 For example, incarcerated persons in Towers 2A—a pod containing quarantined individuals

10 who had direct contact with a person with COVID-19—were removed from quarantine on

11 June 9 without ever being tested. On June 10, incarcerated persons in Towers 2A went to

12 recreation with another pod, and that other pod was then quarantined the next day. As of

13 today, Towers 2A has not been placed back on quarantine or tested despite their direct

14 contact with people from the other pod.

15

131. Primarily relying on symptoms-based testing is particularly problematic in

16 light of Defendants’ failure to consider the full scope of COVID-19 symptoms, as described

17 above. Incarcerated persons have informed prison or medical staff they were suffering from

18 known symptoms of COVID-19, but were not tested because they did not meet Defendants’

19 limited criteria. In addition, other incarcerated persons have reported symptoms to jail staff

20 that meet Defendants’ symptom criteria for testing and are nevertheless denied testing.

21

132. Primarily relying on symptoms-based testing is also problematic because

22 incarcerated persons are deterred from reporting symptoms to staff due to the conditions

23 Defendants impose on them if they report their symptoms. When a person is symptomatic

24 and is tested for COVID-19 or tests positive for COVID-19 at Maricopa County jails, they

25

26

47 Lauren Castle, ACLU demands Maricopa County test all inmates for COVID-19, release results, AZ CENTRAL (June 5, 2020), https://cutt.ly/SuxGROn; see also Press

27

Statement of Grant Phillips (June 5, 2020), https://www.youtube.com/watch?v=GzogmTMA8mA (containing video clip of statement

28 made by Dr. Phillips).

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1 are placed into an isolation pod that individuals have likened to punitive segregation (“the

2 hole”). They are confined in their cells 24 hours per day and allowed to leave their cells for

3 1 hour every 3 days to shower or take a walk. Their belongings are taken from them. They

4 are fed the usual two meals per day provided at the facility, but the food is almost entirely

5 lacking in nutritional value, making it more difficult for them to fight off infection. Nor are

6 they allowed to supplement the small portions given with commissary items, resulting in

7 their feeling hungry much of the day. Medical care is inadequate—incarcerated persons

8 kept in their isolation units see staff who are not necessarily medically trained once per day

9 at most for a limited symptoms and temperature check. A symptoms check is not

10 appropriate for patients diagnosed with, or suspected to have, COVID-19. Patients with

11 known COVID-19 diagnoses should receive clinical monitoring of their condition given the

12 risk of rapid clinical deterioration post infection.

13

133. One incarcerated person with COVID-19 had to wait 3 ½ days for medical

14 staff to provide him with Tylenol for his headache.

15

134. Another received virtually no medical attention since testing positive for

16 COVID-19. No nurse, doctor, or other medical staff member has come to his cell. Someone

17 in a hazmat suit conducted a pulse oximeter test on June 8, and others took his temperature

18 three times over the course of a week, but no one has clinically assessed his condition or

19 symptoms, checked any other vital signs, or provided any information about what he should

20 do to mitigate the impact of the disease or prevent it from worsening.

21

135. These conditions are known by the incarcerated population throughout the

22 Maricopa County jails. They learned of these conditions from other people who

23 experienced the conditions in these isolation pods. They and many others are reluctant to

24 reveal any symptoms for fear of likewise being placed in these punitive conditions.

25

136. Other incarcerated persons who have experienced symptoms associated with

26 COVID-19 have declined to seek attention in the medical units because of the associated

27 expenses and the jails’ refusal to waive co-pays for COVID-related screening or treatment.

28

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1

137. The new policy announced by Maricopa County would be dangerously

2 inadequate even if it were implemented. Under the announced policy, testing is only

3 implemented for those who have contact with an incarcerated person who has a positive

4 COVID-19 test. Up to 30 percent of COVID-19 tests result in false negative results.

5 Because of this false negative rate, even if the jail were now testing asymptomatic known

6 contacts of people who have tested positive for COVID-19, such a policy will not result in

7 the testing of people who have contact with an infected person who nevertheless has a false

8 negative test result.

9

138. Given the congregate setting at the Maricopa County jails, anything short of

10 offering testing for every individual creates an unreasonable risk of transmission and spread

11 of a potentially fatal infection and disease. This is evident given the exponential growth of

12 COVID-19 positive cases at the Maricopa County jails in just the past two weeks.

13

139. Absent universal testing, Defendants cannot identify those who are infected,

14 and timely initiate medical monitoring and treatment for them. Given the well-known and

15 obvious risks that patients infected with COVID-19 can deteriorate rapidly, and can infect

16 others, Defendants’ failure to implement universal testing has already created an

17 unreasonable risk of transmission of COVID-19.

18

140. In addition to the failure to test asymptomatic direct contacts, Defendants

19 have failed to take other well-known protective measures to reduce the risk of spread within

20 quarantined pods containing these individuals. In weeks of quarantine at one unit, medical

21 staff came to a quarantine unit for asymptomatic direct contacts only a single time to check

22 symptoms and temperatures, contrary to CDC guidelines requiring close monitoring of

23 symptoms twice a day.

24

141. Medical staff check temperatures without replacing gloves between uses and

25 utilize the same oral thermometer on all of the incarcerated people, simply replacing the

26 plastic tip protector without sterilizing the thermometer in between uses. No social

27 distancing is encouraged or facilitated in the quarantined pod, and people in quarantined

28 pods mix with others from non-quarantined pods during visits to the medical unit. Pretrial

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1 detainees are still transported to court with people from other units. No additional masks

2 or cleaning supplies are provided separate and apart from the inadequate supplies provided

3 to individuals in pods without a confirmed exposure to COVID-19. No special cleaning is

4 conducted for the cells or bed spaces of the people who were removed from the unit due to

5 confirmed or suspected COVID-19.

6

142. In Estrella, openings in the doors between a quarantine unit and a dorm

7 directly across the hall permit air to flow freely between them. Such a quarantine procedure

8 is extremely dangerous to the people housed within the quarantine unit, particularly the

9 medically vulnerable, the staff that work in the unit, and to the communities where the staff

10 live.

11

Lack of Protections for the Medically Vulnerable

12

143. Defendants have failed to implement policies or procedures to address the

13 substantial risks of serious illness or death from COVID-19 infection to those who are

14 medically vulnerable by reason of age or pre-existing chronic health condition/disability.

15

144. Defendants have not engaged in a process to release medically vulnerable

16 incarcerated persons from the jails during this time where the congregate conditions inside

17 detention facilities are inherently dangerous to the medically vulnerable and pose an

18 unreasonable risk to them of serious illness or death. Many medically vulnerable people

19 are currently housed in the jails, including Plaintiffs in the Medically Vulnerable and

20 Disability Subclasses.

21

145. Despite clear guidance from public health authorities and the CDC that these

22 prisoners are at a significant risk, Defendants have not taken any specific steps to reduce

23 the risks for the medically vulnerable population that they have chosen to continue to detain.

24

146. Defendants have housed people who are medically vulnerable with persons

25 of unknown COVID-19 status.

26

147. Defendants have not regularly screened medically vulnerable incarcerated

27 persons for symptoms and fevers, even where they were exposed to someone with COVID-

28 19 or have even tested positive for COVID-19.

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1

148. Defendants have failed to place medically vulnerable incarcerated persons in

2 a separate quarantine unit when they have been in close contact with a known or suspected

3 COVID-19 case.

4

149. Defendants have not universally tested this population, prohibited housing

5 this medically vulnerable population in open dormitory housing units ensuring that they are

6 housed in single cells, or implemented long-term staff assignment by test-confirmed

7 negative staff to prevent staff-prisoner transmission.

8

Lack of Information and Education

9

150. Public health authorities and the CDC have made clear that education of both

10 staff and people who are incarcerated is critical to help prevent the spread of COVID-19.

11

151. Defendants have failed to provide the basic information about COVID-19

12 prevention recommended by the CDC and public health authorities to all persons

13 incarcerated within the jails.

14

152. Incarcerated persons have only been provided with instructions on hand

15 washing and, in limited instances, how to wash their paper masks.

16

153. Incarcerated persons have not been provided with information on what

17 symptoms to look for or instructions on social distancing, even in quarantined units.

18

154. Defendants have not taken steps to ensure that incarcerated persons with

19 psychiatric or intellectual disabilities are educated about the disease and able to take the

20 steps necessary to protect themselves.

21

155. Aside from basic hand washing and mask washing, individuals have learned

22 about the coronavirus through their attorneys, families, or persons other than Defendants’

23 employees. This is despite the fact that Defendants publicly claim to have posted

24 information on COVID-19 in the jails.

25

Lack of Testing or Screening of Staff

26

156. There is inadequate testing of correctional and civilian staff who have contact

27 with incarcerated persons at the Maricopa County jails. Staff who work in the congregate

28 environment of the jails, who travel to and from their homes and communities for work, are

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1 at risk of transmitting the virus to people incarcerated in the jails, to fellow staff, and to

2 persons in their communities.

3

157. There is no policy requiring that testing be offered to all officers or other staff

4 or requiring even screening staff for symptoms when they enter the facility. Instead, staff

5 are “instructed to stay home if they are sick with fever, cough, or difficulty breathing and

6 contact their healthcare provider.”48 Defendants’ policies do not describe criteria for

7 offering testing to correctional and civilian staff who have contact with incarcerated people

8 at the Maricopa County jails.

9

158. Detention officers routinely move between pods or units within the jails and

10 do not change or disinfect gloves before entering a pod and often do not wear masks.

11

CLAIMS FOR RELIEF

12

First Claim For Relief

13

Unconstitutional Conditions of Confinement in Violation of the

14

Fourteenth Amendment to the United States Constitution 42 U.S.C. § 1983

15

[On Behalf of All Pretrial Class Plaintiffs and Puente]

16

159. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth in

17 this Count.

18

160. The Due Process Clause of the Fourteenth Amendment governs the treatment

19 of state pretrial detainees.

20

161. Persons in pretrial custody are presumed innocent and therefore have greater

21 protections against unconstitutional treatment than those convicted of crimes. As part of

22 these protections, the government must provide persons detained pretrial with reasonably

23 safe conditions of confinement and address serious medical needs that arise in jail.

24

162. The government violates these obligations by showing objective deliberate

25 indifference to unsafe conditions of confinement.

26

27 48 COVID-19 FAQ, MARICOPA COUNTY SHERIFF’S OFFICE (May 4, 2020),
https://www.mcso.org/Multimedia/PressRelease/FAQ%20Covid-19-5.4.20.pdf.
28

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1

163. Defendants have shown objective deliberate indifference to the Pretrial Class

2 Plaintiffs in violation of the Fourteenth Amendment.

3

164. Defendants have made an intentional decision regarding the conditions under

4 which the Pretrial Class have been confined and regarding the denial of medical care.

5

165. Defendants have not taken reasonable available measures to abate or reduce

6 the risk of serious harm from COVID-19, even though a reasonable custodian under the

7 circumstances would have understood the high degree of risks involved—making the

8 consequences of Defendants’ conduct obvious.

9

166. Defendants have subjected the Pretrial Class to conditions of confinement that

10 place Plaintiffs at substantial risk from COVID-19, a disease for which there is no known

11 vaccine, treatment, or cure.

12

167. By not taking such measures, Defendants have placed the Pretrial Class at

13 risk of irreparable harm or even death.

14

168. As a result of Defendants’ unconstitutional actions and omissions, the

15 Pretrial Class members have suffered—and likely will continue to suffer—irreparable

16 injury.

17

Second Claim For Relief

18

Unconstitutional Conditions of Confinement in Violation of the

19

Eighth Amendment to the United States Constitution 42 U.S.C. § 1983

20

[On Behalf of All Post-Conviction Plaintiffs and Puente]

21

169. Plaintiffs incorporate herein the allegations set forth in the preceding

22 paragraphs of this complaint.

23

170. The Eighth Amendment to the United States Constitution protects Plaintiffs

24 from “cruel and unusual punishments.” As part of this right, the government must protect

25 incarcerated persons from a substantial risk of serious harm to their health and safety. See

26 Farmer v. Brennan, 511 U.S. 825, 832-33 (1994).

27

28

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1

171. Defendants have shown and continue to show deliberate indifference to a

2 substantial risk of serious harm to Post-Conviction Plaintiffs in violation of the Eighth

3 Amendment.

4

172. COVID-19 infection poses a risk of serious harm, including death, to all

5 incarcerated persons housed at the Maricopa County jails.

6

173. Defendants have acted with deliberate indifference to the risks posed to Post-

7 Conviction Plaintiffs due to the presence and spread of COVID-19 at the Maricopa County

8 jails.

9

174. Defendants know of the risks that COVID-19 poses to Post-Conviction

10 Plaintiffs.

11

175. The risks posed by COVID-19 are and have been obvious to Defendants.

12

176. Defendants have disregarded the substantial risk of serious harm to Plaintiffs

13 from Post-Conviction COVID-19.

14

177. As a result of Defendants’ actions, Post-Conviction Plaintiffs have suffered—

15 and likely will continue to suffer—irreparable injury.

16

Third Claim For Relief
17

Unconstitutional Punishment in Violation of the Fourteenth Amendment

18

to the United States Constitution 42 U.S.C. § 1983

19

[On Behalf of All Pretrial Subclass Plaintiffs and Puente]

20

178. Plaintiffs incorporate herein the allegations set forth in the preceding

21 paragraphs of this complaint.

22

179. Under the Fourteenth Amendment, persons in pretrial custody cannot be

23 punished as part of their detention. Punishment is established if the jailer’s conduct either

24 is not rationally related to a legitimate, non-punitive, government purpose or is excessive in

25 relation to that scope.

26

180. Defendants have subjected Plaintiffs to unlawful punishment through acts and

27 omissions that are not reasonably related to a legitimate non-punitive government purpose

28

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1 or are excessive in relation to that purpose. No legitimate government purpose is served by

2 unnecessarily subjecting pretrial detainees to an excessive risk of exposure to and

3 contracting COVID-19. Nor is any legitimate government purpose served by failing to

4 address these risks. Exposing pretrial detainees to an excessive risk of contracting COVID-

5 19, and of serious illness and death for those who are medically vulnerable, is not rationally

6 related to the purpose of pretrial confinement, which is to ensure the presence of a detainee

7 at trial, and safe and orderly operation of detention facilities that hold them.

8

Fourth Claim For Relief
9

Petition for a Writ of Habeas Corpus

10

for Confinement in Violation of the

Fourteenth Amendment to the United States Constitution

11

28 U.S.C. § 2241

12

[On Behalf of All Pretrial Medically Vulnerable Subclass Plaintiffs]

13

181. Plaintiffs incorporate herein the allegations set forth in the preceding

14 paragraphs of this complaint.

15

182. In light of COVID-19, continuing to detain the Pretrial Medically Vulnerable

16 Subclass is punitive, not rationally related to a legitimate purpose, and/or excessive in

17 relation to any legitimate purpose, in addition to being objectively deliberately indifferent.

18 Thus, their continued confinement violates their rights under the Fourteenth Amendment.

19

183. Members of the Pretrial Medically Vulnerable Subclass are particularly

20 susceptible to infection, injury and death from COVID-19.

21

184. As a result of their specific characteristics, there are no conditions of

22 confinement that will adequately protect members of the Pretrial Medically Vulnerable

23 Subclass from the risk of infection, serious injury and death from COVID-19. As such, the

24 fact of their confinement violates the Fourteenth Amendment.

25

185. In order to protect the people with the greatest vulnerability to COVID-19

26 from becoming infected with the virus, and also allow for greater risk mitigation for people

27 held or working in a jail and the broader community, public health experts recommend the

28 rapid release from custody of people most vulnerable to COVID-19.

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1

186. Release or enlargement is needed to prevent irreparable harm to members of

2 the Pretrial Medically Vulnerable Subclass and reduce the incarcerated population at the

3 Maricopa County jails to enable proper social distancing to reduce transmission for all class

4 members and the wider public.

5

187. Release or enlargement of the most vulnerable people from custody also

6 reduces the burden on the region’s health care infrastructure by reducing the likelihood that

7 an overwhelming number of people will become seriously ill from COVID-19 at the same

8 time.

9

188. The only way to way to remove the unacceptable risk posed to the Pretrial

10 Medically Vulnerable Subclass by COVID-19 is to remove these class members from the

11 jail via release or enlargement.

12

Fifth Claim For Relief
13

Unconstitutional Conditions of Confinement in Violation of the Eighth

14

and Fourteenth Amendments

42 U.S.C. § 1983
15

[On Behalf of the Pretrial Medically Vulnerable Subclass, the Post-Conviction

16

Medically Vulnerable Subclass and Puente]

17

189. Plaintiffs repeat and re-allege the preceding paragraphs as set forth in the

18 preceding paragraphs of this Complaint.

19

190. Members of the Pretrial Medically Vulnerable Subclass and Post-Trial

20 Medically Vulnerable Subclass are particularly susceptible to infection, injury and death

21 from COVID-19.

22

191. As a result of their specific characteristics, no conditions of confinement at

23 the Maricopa County jails will adequately protect members of these Medically Vulnerable

24 Subclasses from the risk of infection, serious injury and death.

25

192. Because the Maricopa County jails are not overcapacity, the injury suffered

26 by these Medically Vulnerable Subclasses is not the result of overcrowding.

27

193. Defendants are therefore holding members of these Medically Vulnerable

28 Subclasses in custody in violation of the Eighth Amendment’s right to be free from cruel

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1 and unusual punishment for people who are post-conviction and the Due Process Clause of

2 the Fourteenth Amendment for people who are pretrial.

3

194. Plaintiffs seek injunctive and declaratory relief against Defendant to prevent

4 the continued violation of the rights of Plaintiffs and the classes they represent.

5

Sixth Claim For Relief

6 Discrimination on the Basis of Disability in Violation of Title II of the Americans

with Disabilities Act (“ADA”) 42 U.S.C. § 12131 et seq.
7

[On Behalf of the Pretrial Disability Subclass Plaintiffs, the Post-Conviction

8

Disability Subclass Plaintiffs and Puente]

9

195. Plaintiffs incorporate herein the allegations set forth in the preceding

10 paragraphs of this complaint.

11

196. People in the Disability Subclasses are medically vulnerable because of their

12 disabilities.

13

197. Under Title II of the ADA, “no qualified individual with a disability shall, by

14 reason of such disability, be excluded from participation in or be denied the benefits of the

15 services, programs, or activities of a public entity, or be subjected to discrimination by any

16 such entity.” 42 U.S.C. § 12132.

17

198. Title II of the ADA requires that public entities avoid policies, practices,

18 criteria, or methods of administration that have the effect of excluding or discriminating

19 against persons with disabilities in the entity’s programs, services, or activities. 28 C.F.R.

20 § 35.130(a), (b)((3), (8).

21

199. A public entity must “make reasonable modifications in policies, practices, or

22 procedures when the modifications are necessary to avoid discrimination on the basis of

23 disability, unless the public entity can demonstrate that making the modifications would

24 fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. §

25 35.130(b)(7)(i).

26

200. Plaintiffs and the Disability Subclass members are protected people with

27 disabilities under the ADA. See 42 U.S.C. § 12102. The Disability Subclasses include

28 everyone in the Medically Vulnerable Subclasses except those vulnerable solely because of

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1 age or obesity. All other conditions that increase risk for COVID-19 complications or death

2 are disabilities under federal disability rights laws. People with all of these conditions are

3 people with physical and/or mental impairments that substantially limit one or more major

4 life activities, including but not limited to chronic diseases and health conditions, including

5 lung disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis

6 patients), diabetes, epilepsy, hypertension, compromised immune systems (such as from

7 cancer, HIV, or autoimmune disease), blood disorders (including sickle cell disease),

8 inherited metabolic disorders, stroke, developmental disabilities, and moderate to severe

9 asthma.

10

201. Members of the Disability Subclasses are “qualified” for the programs,

11 services, and activities being challenged herein. 42 U.S.C. § 12131(2).

12

202. Maricopa County is a municipal corporation organized under the laws of the

13 State of Arizona and is a public entity covered by Title II of the ADA. 42 U.S.C. § 12131.

14

203. Defendants are violating Title II of the ADA by failing to make the reasonable

15 modifications necessary to provide Disability Subclass members an equal opportunity to

16 benefit from the jail’s “services, programs, or activities,” including medical care, meals,

17 and rehabilitative programming. Failure to make these modifications places members of the

18 Disability Subclasses at high risk of severe infection or death from COVID-19, and this risk

19 is excluding them from equal access to life in jail, and from an equal opportunity to

20 adjudicate their cases for those who are pretrial. Defendants are further violating the ADA

21 by employing methods of administration that tend to discriminate against people with

22 disabilities.

23

204. Defendants are required to take affirmative steps to ensure equal access for

24 people with disabilities, including by making reasonable modifications. But Defendants

25 have failed to make modifications to ensure that high-risk people with disabilities can avoid

26 contracting—and possibly dying from—COVID-19. Exposing disabled persons to a virus

27 that can sicken or kill them denies them the ability to benefit from Maricopa County jails’

28 programs, services, and activities.

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1

205. For the Disability Subclasses, the only reasonable modification in the face of

2 the unprecedented risks of COVID-19 is removal from the jail, whether through release or

3 enlargement.

4

206. To the extent it is unreasonable to remove any members of the Disability

5 Subclasses from the jails, the Defendants must make modifications within the jails,

6 including but not limited to: separate living spaces rather than high-capacity shared rooms

7 and dorms with people in close proximity; universal testing and screening for COVID-19;

8 free distribution of adequate cleaning supplies, including soap; frequent cleaning of

9 common areas; free distribution of adequate personal protective equipment, including

10 masks and gloves; education on COVID-19 risks and prevention; suspension and waiver of

11 co-payments and charges for medical treatments and visits; and staggered access to

12 bathrooms, meals, and other shared resources.

13

207. Defendants are further violating the ADA by employing methods of

14 administration that tend to discriminate against people with disabilities. The ADA prohibits

15 covered entities like the Maricopa County jails from using methods of administration that

16 defeat or impair the accomplishment of the objectives of the public entity’s program. For

17 disabled individuals facing criminal charges or participating in post-trial proceedings, the

18 Maricopa County jails’ main purpose and objectives are to provide required safety and

19 health services while ensuring an individual’s appearance at trial or post-trial proceedings.

20 For disabled individuals serving a criminal sentence, the jail’s primary service is to detain

21 them for the duration of their sentence. A person who is sickened, unconscious, or killed

22 by COVID-19 will be unable to make court appearances; those who die of COVID-19 will

23 not complete their sentences. By setting up a system where mass infection and resulting

24 harm and death will disproportionately fall on people with disabilities, Defendants have

25 failed to establish methods of administration that do not discriminate against people with

26 disabilities.

27

208. Defendants’ actions and inactions in the face of COVID-19 constitute

28 disability discrimination that injure the Disability Subclasses.

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1

Seventh Claim For Relief
2

Discrimination on the Basis of Disability in Violation of

3

504 of the Rehabilitation Act 29 U.S.C. § 794

4

[On Behalf of the Pretrial Disability Subclass Plaintiffs, the Post-Conviction

Disability Subclass Plaintiffs and Puente]
5

6

209. Plaintiffs incorporate herein the allegations set forth in the preceding

7 paragraphs of this complaint.

8

210. Section 504 states that “[n]o otherwise qualified individual with a disability

9 in the United States . . . shall, solely by reason of [] disability, be excluded from the

10 participation in, be denied the benefits of, or be subject[] to discrimination under any

11 program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).

12

211. Defendants Penzone and Maricopa County receive federal financial

13 assistance for services, programs, or activities. See 29 U.S.C. § 794(a).

14

212. Section 504 requires entities such as the Maricopa County jails to make

15 reasonable modifications to ensure that people with disabilities have equal access to its

16 programs and services.

17

213. The regulations implementing Section 504 require that entities receiving

18 federal financial assistance avoid unnecessary policies, practices, criteria or methods of

19 administration that have the effect of discriminating against persons with disabilities. 28

20 C.F.R. § 41.51(b)(3)(i).

21

214. Members of the Disability Subclasses are individuals with disabilities under

22 Section 504.

23

215. Section 504 imposes parallel requirements as the ADA. See Duvall v. Cty. of

24 Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001). Disability Subclass members incorporate by

25 reference the allegations laid out in their Sixth Claim for relief, see supra, paragraphs 195-

26 208.

27

REQUEST FOR RELIEF

28

WHEREFORE, Plaintiffs respectfully request that the Court:

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1

a. Certify this petition as a class action and appoint named Plaintiffs as class and

2

subclass representatives and the undersigned counsel as class counsel;

3

b. Issue a temporary restraining order and/or writ of habeas corpus requiring

4

Defendants to produce promptly a list of all members of the Pretrial and Post-

5

Conviction Medically Vulnerable and Disability Subclasses detained at the

6

Maricopa County jails;

7

c. Issue a temporary restraining order and/or writ of habeas corpus requiring

8

Defendants to immediately release the members of the Pretrial Medically

9

Vulnerable Subclass and Pretrial Disability Subclass who are incarcerated

10

solely due to their inability to afford a financial condition of release, or whose

11

release Defendants do not object to;

12

d. Issue a temporary restraining order, preliminary and permanent injunction,

13

and/or writ of habeas corpus imposing a process—to be determined by the

14

Court—to consider the release or enlargement of all remaining Pretrial

15

Medically Vulnerable Subclass and Pretrial Disability Subclass members not

16

released pursuant to Paragraph c within two weeks, and members of the Post-

17

Conviction Medically Vulnerable Subclass, considering:

18

i. the deprivation of the petitioner’s federal rights posed by the COVID-

19

19 outbreak (including the disability discrimination for Pretrial and

20

Post-Conviction Disability Subclass members and the necessity of

21

providing modifications including release);

22

ii. any competent evidence that the individual poses a serious risk of

23

flight or danger to others;

24

iii. the length of the remaining sentence to be served by members of the

25

Post-Conviction Medically Vulnerable Subclass; and

26

iv. whether, by clear and convincing evidence, any present risk of flight

27

of danger outweighs the threat to the petitioner’s health and safety

28

posed by their exposure to COVID-19 in the Maricopa County jails,

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1

after considering alternative conditions for release or enlargement to

2

manage the risk(s) presented;

3

e. Issue injunctive relief or a temporary restraining order implementing public

4

health and safety measures for all Plaintiffs in the Maricopa County jails

5

sufficient to abate the risk of the spread of COVID-19, including but not

6

limited to measures to remedy the deficiencies outlined in this complaint, on

7

the grounds that the current conditions of confinement for all Plaintiffs violate

8

the Fourteenth and Eighth Amendments of the U.S. Constitution,

9

f. Issue injunctive relief or a temporary restraining order requiring any

10

reasonable modifications necessary—including, but not limited to, any public

11

health and safety measures sufficient to abate the risk of the spread of

12

COVID-19, including but not limited to measures to remedy the deficiencies

13

outlined in this complaint—on the grounds that the current conditions of

14

confinement violate the ADA and Section 504;

15

g. Issue an order requiring Defendants to provide to Plaintiffs and the Court, at

16

intervals the Court deems proper, information regarding the ongoing COVID-

17

19 outbreak at the Maricopa County jails;

18

h. If immediate release is not granted on the basis of this petition alone, then

19

expedited review of the petition, including oral argument, via telephonic or

20

videoconference if necessary;

21

i. Issue a judgment declaring that the conditions under which Defendants have

22

confined Plaintiffs and the Maricopa County jails class members violate the

23

Due Process Clause of the Fourteenth Amendment with respect to the Pretrial

24

Class; the Eighth Amendment’s prohibition against cruel and unusual

25

punishment with respect to the Post-Conviction Class; the ADA and Section

26

504 with respect to the Pretrial and Post-Conviction Disability Subclasses;

27

28

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1

j. Grant Plaintiffs their reasonable attorneys’ fees and expenses pursuant to the

2

Equal Access to Justice Act, 28 U.S.C. § 2412; 42 U.S.C. §§ 1988, 12205;

3

and other applicable law; and

4

k. Grant all further relief as this Court deems just and proper to ensure proper

5

social distancing and other reasonable protection of Plaintiffs.

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

RESPECTFULLY SUBMITTED this 16th day of June, 2019.

2

STINSON LLP

3

By: /s/ Larry J. Wulkan

4

Larry J. Wulkan 1850 North Central Avenue, Suite 2100

5

Phoenix, Arizona 85004-4584

6

Attorney for Plaintiffs

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CORE/3502877.0004/159968585.1

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 CASREF,CLASSACT,DTE,DTEATTY
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:20-cv-01192-SPL-JZB

Fenty et al v. Penzone et al Assigned to: Judge Steven P Logan Referred to: Magistrate Judge John Z Boyle Related Case: 2:20-cv-01245-DJH--JZB Cause: 42:1983 Prisoner Civil Rights

Date Filed: 06/16/2020 Jury Demand: None Nature of Suit: 555 Prisoner: Prison Condition Jurisdiction: Federal Question

Plaintiff
Jason Fenty Appointed as representatives of the Pretrial Class, Pretrial Medically Vulnerable Subclass and Pretrial Disability Subclass per Order 67

represented by Allison Ozurovich Dechert LLP - Los Angeles, CA 633 W 5th St., Ste. 4900 Los Angeles, CA 90071 213-808-5700 Fax: 213-808-5760 Email: Allie.Ozurovich@dechert.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin Sadun Dechert LLP - Los Angeles, CA 633 W 5th St., Ste. 4900 Los Angeles, CA 90071 213-808-5700 Fax: 213-808-5760 Email: Benjamin.Sadun@dechert.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian Christopher Raphel Dechert LLP - New York, NY 3 Bryant Park 1095 Avenue of the Americas New York, NY 10036-6797 212-698-3500 Fax: 212-698-3599 Email: Brian.Raphel@dechert.com LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
Clara Simone Spera ACLU - New York, NY 125 Broad St., 18th Fl. New York, NY 10004 646-885-8373 Email: cspera@aclu.org TERMINATED: 09/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corene T Kendrick ACLU - Washington DC 915 15th St. NW, 7th Fl. Washington, DC 20005 202-393-4930 Email: ckendrick@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eric Balaban ACLU - Washington DC 915 15th St. NW, 7th Fl. Washington, DC 20005 202-393-4930 Fax: 202-393-4931 Email: ebalaban@aclu.org TERMINATED: 12/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Sanders Stinson LLP - Kansas City, MO 1201 Walnut St., Ste. 2900 Kansas City, MO 64106 816-691-2628 Fax: 816-412-8192 Email: ethan.sanders@stinson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hugh Handeyside ACLU - New York, NY 125 Broad St., 18th Fl. New York, NY 10004 212-549-2500 Email: hhandeyside@aclu.org TERMINATED: 01/27/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jared G Keenan ACLU - Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602-650-1854 Email: jkeenan@acluaz.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence J Wulkan Stinson LLP - Phoenix, AZ 1850 N Central Ave., Ste. 2100 Phoenix, AZ 85004-4584 602-212-8511 Fax: 602-240-6925 Email: Larry.Wulkan@stinson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leah Watson ACLU - New York, NY 125 Broad St., 18th Fl. New York, NY 10004 212-519-7855 Fax: 212-549-2654 Email: lwatson@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Olga Akselrod ACLU - New York, NY 125 Broad St., 18th Fl. New York, NY 10004 212-549-2663

Email: oakselrod@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Nicholas Andriola Dechert LLP - New York, NY 3 Bryant Park 1095 Avenue of the Americas New York, NY 10036-6797 212-698-3500 Fax: 212-698-3599 Email: Pat.Andriola@dechert.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shari Ross Lahlou Dechert LLP - Washington, DC 1900 K St. NW Washington, DC 20006-1110 202-261-3300 7923 Fax: 202-261-3333 Email: shari.lahlou@dechert.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Somil Bharat Trivedi ACLU - Washington DC 915 15th St. NW, 7th Fl. Washington, DC 20005 202-904-7727 Email: strivedi@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Timothy Ly Dechert LLP - New York, NY 3 Bryant Park 1095 Avenue of the Americas New York, NY 10036-6797 212-698-3500 8733 Fax: 212-698-3599 Email: timothy.ly@dechert.com LEAD ATTORNEY PRO HAC VICE

Plaintiff
Brian Stepter Appointed as representatives of the Pretrial Class, Pretrial Medically Vulnerable Subclass and Pretrial Disability Subclass per Order 67

ATTORNEY TO BE NOTICED
Zoe Brennan-Krohn ACLU - San Francisco, CA Immigrants Rights Project 39 Drumm St. San Francisco, CA 94111 415-343-0769 Email: zbrennan-krohn@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Casey Arellano ACLU - Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602-650-1854 Email: carellano@acluaz.org ATTORNEY TO BE NOTICED
Victoria Lopez ACLU - Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602-773-6043 Email: vlopez@acluaz.org ATTORNEY TO BE NOTICED
represented by Allison Ozurovich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Sadun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Christopher Raphel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Clara Simone Spera (See above for address) TERMINATED: 09/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corene T Kendrick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eric Balaban (See above for address) TERMINATED: 12/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Sanders (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) TERMINATED: 01/27/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jared G Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence J Wulkan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leah Watson (See above for address) LEAD ATTORNEY PRO HAC VICE

Plaintiff

ATTORNEY TO BE NOTICED
Olga Akselrod (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Nicholas Andriola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shari Ross Lahlou (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Somil Bharat Trivedi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Timothy Ly (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe Brennan-Krohn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Casey Arellano (See above for address) ATTORNEY TO BE NOTICED
Victoria Lopez (See above for address) ATTORNEY TO BE NOTICED

Douglas Crough Appointed as representatives of the Pretrial Class, Pretrial Medically Vulnerable Subclass and Pretrial Disability Subclass per Order 67

represented by Allison Ozurovich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Sadun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Christopher Raphel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Clara Simone Spera (See above for address) TERMINATED: 09/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corene T Kendrick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eric Balaban (See above for address) TERMINATED: 12/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Sanders (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) TERMINATED: 01/27/2021 LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
Jared G Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence J Wulkan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leah Watson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Olga Akselrod (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Nicholas Andriola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shari Ross Lahlou (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Somil Bharat Trivedi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Timothy Ly (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Edward Reason

Zoe Brennan-Krohn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Casey Arellano (See above for address) ATTORNEY TO BE NOTICED
Victoria Lopez (See above for address) ATTORNEY TO BE NOTICED
represented by Allison Ozurovich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Sadun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Christopher Raphel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Clara Simone Spera (See above for address) TERMINATED: 09/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corene T Kendrick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eric Balaban (See above for address)

TERMINATED: 12/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Sanders (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) TERMINATED: 01/27/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jared G Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence J Wulkan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leah Watson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Olga Akselrod (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Nicholas Andriola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shari Ross Lahlou (See above for address)

Plaintiff
Jesus Tequida Appointed as representative of the Post-Conviction Class, PostConviction Medically Vulnerable Subclass and Post-Conviction Disability Subclass per Order 67

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Somil Bharat Trivedi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Timothy Ly (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe Brennan-Krohn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Casey Arellano (See above for address) ATTORNEY TO BE NOTICED
Victoria Lopez (See above for address) ATTORNEY TO BE NOTICED
represented by Allison Ozurovich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Sadun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Christopher Raphel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Clara Simone Spera (See above for address) TERMINATED: 09/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corene T Kendrick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eric Balaban (See above for address) TERMINATED: 12/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Sanders (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) TERMINATED: 01/27/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jared G Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence J Wulkan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leah Watson (See above for address) LEAD ATTORNEY PRO HAC VICE

Plaintiff

ATTORNEY TO BE NOTICED
Olga Akselrod (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Nicholas Andriola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shari Ross Lahlou (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Somil Bharat Trivedi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Timothy Ly (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe Brennan-Krohn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Casey Arellano (See above for address) ATTORNEY TO BE NOTICED
Victoria Lopez (See above for address) ATTORNEY TO BE NOTICED

Ramon Avenenti Appointed as representative of the Post-Conviction Class per Order 67

represented by Allison Ozurovich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin Sadun (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Brian Christopher Raphel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Clara Simone Spera (See above for address) TERMINATED: 09/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corene T Kendrick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eric Balaban (See above for address) TERMINATED: 12/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Sanders (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address)

TERMINATED: 01/27/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jared G Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence J Wulkan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leah Watson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Olga Akselrod (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Nicholas Andriola (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shari Ross Lahlou (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Somil Bharat Trivedi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Timothy Ly

Plaintiff
Anthony Scroggins Appointed as representatives of the Pretrial Class, Pretrial Medically Vulnerable Subclass and Pretrial Disability Subclass per Order 67

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe Brennan-Krohn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Casey Arellano (See above for address) ATTORNEY TO BE NOTICED
Victoria Lopez (See above for address) ATTORNEY TO BE NOTICED
represented by Allison Ozurovich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Sadun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Christopher Raphel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Clara Simone Spera (See above for address) TERMINATED: 09/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corene T Kendrick (See above for address) LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
Eric Balaban (See above for address) TERMINATED: 12/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Sanders (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) TERMINATED: 01/27/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jared G Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence J Wulkan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leah Watson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Olga Akselrod (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Nicholas Andriola (See above for address)

Plaintiff
Dale Perez Appointed as representatives of the Pretrial Class per Order 67

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shari Ross Lahlou (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Somil Bharat Trivedi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Timothy Ly (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe Brennan-Krohn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Casey Arellano (See above for address) ATTORNEY TO BE NOTICED
Victoria Lopez (See above for address) ATTORNEY TO BE NOTICED
represented by Allison Ozurovich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Sadun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Christopher Raphel

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Clara Simone Spera (See above for address) TERMINATED: 09/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corene T Kendrick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eric Balaban (See above for address) TERMINATED: 12/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Sanders (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) TERMINATED: 01/27/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jared G Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence J Wulkan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leah Watson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Olga Akselrod (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Nicholas Andriola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shari Ross Lahlou (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Somil Bharat Trivedi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Timothy Ly (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe Brennan-Krohn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Casey Arellano (See above for address) ATTORNEY TO BE NOTICED
Victoria Lopez

Plaintiff
Tamara Ochoa Appointed as representatives of the Pretrial Class per Order 67

(See above for address) ATTORNEY TO BE NOTICED
represented by Allison Ozurovich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Sadun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Christopher Raphel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Clara Simone Spera (See above for address) TERMINATED: 09/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corene T Kendrick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eric Balaban (See above for address) TERMINATED: 12/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Sanders (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hugh Handeyside

(See above for address) TERMINATED: 01/27/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jared G Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence J Wulkan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leah Watson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Olga Akselrod (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Nicholas Andriola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shari Ross Lahlou (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Somil Bharat Trivedi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Timothy Ly (See above for address)

Plaintiff Puente Human Rights Movement

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe Brennan-Krohn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Casey Arellano (See above for address) ATTORNEY TO BE NOTICED
Victoria Lopez (See above for address) ATTORNEY TO BE NOTICED
represented by Allison Ozurovich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Sadun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Christopher Raphel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Clara Simone Spera (See above for address) TERMINATED: 09/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corene T Kendrick (See above for address) LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
Eric Balaban (See above for address) TERMINATED: 12/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Sanders (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) TERMINATED: 01/27/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jared G Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence J Wulkan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leah Watson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Olga Akselrod (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Nicholas Andriola (See above for address) LEAD ATTORNEY

V.
Defendant
Paul Penzone Sheriff, in his official capacity

ATTORNEY TO BE NOTICED
Shari Ross Lahlou (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Somil Bharat Trivedi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Timothy Ly (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe Brennan-Krohn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Casey Arellano (See above for address) ATTORNEY TO BE NOTICED
Victoria Lopez (See above for address) ATTORNEY TO BE NOTICED
represented by Ashlee B Hesman Struck Love Bojanowski & Acedo PLC 3100 W Ray Rd., Ste. 300 Chandler, AZ 85226 480-420-1600 Fax: 480-420-1695 Email: ahesman@strucklove.com LEAD ATTORNEY

Defendant
Maricopa, County of a municipal entity

ATTORNEY TO BE NOTICED
Daniel Patrick Struck Struck Love Bojanowski & Acedo PLC 3100 W Ray Rd., Ste. 300 Chandler, AZ 85226 480-420-1600 Email: dstruck@strucklove.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin L Nguyen Struck Wieneke & Love PLC 3100 W Ray Rd., Ste. 300 Chandler, AZ 85226 480-420-1600 Email: knguyen@strucklove.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas Daniel Acedo Struck Love Bojanowski & Acedo PLC 3100 W Ray Rd., Ste. 300 Chandler, AZ 85226 480-420-1600 Email: NAcedo@strucklove.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Love Struck Love Bojanowski & Acedo PLC 3100 W Ray Rd., Ste. 300 Chandler, AZ 85226 480-420-1600 Fax: 480-420-1696 Email: RLove@strucklove.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ashlee B Hesman (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Daniel Patrick Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin L Nguyen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas Daniel Acedo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Love (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/16/2020
06/16/2020 06/16/2020

# Docket Text
1 PRISONER CIVIL RIGHTS COMPLAINT (TRO and Preliminary/Permanent Injunction requested) Injunctive Relief. Filing fee received: $ 400.00, receipt number 0970-18385988 filed by Ramon Avenenti, Douglas Crough, Anthony Scroggins, Tamara Ochoa, Brian Stepter, Dale Perez, Jason Fenty, Edward Reason, Puente Human Rights Movement, Jesus Tequida. (Wulkan, Lawrence) (Attachments: # 1 Civil Cover Sheet)(DLC) (Entered: 06/16/2020)
2 Corporate Disclosure Statement by Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. (Wulkan, Lawrence) (DLC) (Entered: 06/16/2020)
3 SUMMONS Submitted by Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. (Wulkan, Lawrence) (Attachments: # 1 Summons)(DLC) (Entered: 06/16/2020)

06/16/2020 06/17/2020
06/17/2020 06/17/2020 06/18/2020 06/18/2020 06/19/2020

NOTICE OF ASSIGNMENT (DLC) (Entered: 06/16/2020) 4
5 ORDER: Defendants Maricopa County Sheriff Paul Penzone, in his official capacity, and Maricopa County must answer the 1 "Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief". If Plaintiffs do not either obtain a waiver of service of the summons or complete service of the Summons and Complaint on a Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii). This matter is referred to Magistrate Judge John Z. Boyle pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). See document for further details. Signed by Judge Steven P Logan on 6/17/20. (GMP) (Entered: 06/17/2020)
6 Summons Issued as to Maricopa, County of, Paul Penzone. (GMP). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 06/17/2020)
Remark: Pro hac vice motion(s) granted for Eric Balaban on behalf of Plaintiffs Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/17/2020)
Remark: Pro hac vice motion(s) granted for Olga Akselrod and Zoe Brennan-Krohn on behalf of Plaintiffs Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, and Jesus Tequida. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/18/2020)
Remark: Pro hac vice motion(s) granted for Clara Simone Spera on behalf of Plaintiffs Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/18/2020)
Remark: Pro hac vice motion(s) granted for Hugh Handeyside on behalf of Plaintiffs Ramon Avenenti, Douglas Crough, Jason Fenty,

06/22/2020 06/29/2020
06/29/2020 06/29/2020

Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/19/2020)
7 NOTICE of Appearance by Casey Arellano on behalf of Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. (Arellano, Casey) (Entered: 06/22/2020)
8 * NOTICE OF FILING EXHIBITS SUPPORTING PLAINTIFFPETITIONERS 10 MOTION FOR A TEMPORARY RESTRAINING ORDER (LODGED) AND 11 MOTION FOR CLASS CERTIFICATION by Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida . (Attachments: # 1 Exhibit Exhibits 1 through 19, # 2 Exhibit Exhibit 20, # 3 Exhibit Exhibit 21 part 1 of 3, # 4 Exhibit Exhibit 21 part 2 of 3, # 5 Exhibit Exhibit 21 part 3 of 3, # 6 Exhibit Exhibits 22 through 27)(Wulkan, Lawrence) * Modified to add document linkage on 6/30/2020 (LAD). (Entered: 06/29/2020)
9 MOTION MOTION TO EXCEED PAGE LIMIT FOR PLAINTIFF-PETITIONERS APPLICATION FOR A TEMPORARY RESTRAINING ORDER by Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. (Attachments: # 1 Text of Proposed Order)(Wulkan, Lawrence) (Entered: 06/29/2020)
10 *Filed at 14 pursuant to 13 --LODGED Proposed PLAINTIFF-PETITIONERS EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER re: 9 MOTION MOTION TO EXCEED PAGE LIMIT FOR PLAINTIFF-PETITIONERS APPLICATION FOR A TEMPORARY RESTRAINING ORDER . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. (Attachments: # 1 Text of Proposed Order)(Wulkan, Lawrence) *Modified on 6/30/2020 (WLP). (Entered: 06/29/2020)

06/29/2020

11 MOTION to Certify Class by Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Jesus Tequida. (Attachments: # 1 Text of Proposed Order)(Wulkan, Lawrence) (Entered: 06/29/2020)

06/30/2020

12 NOTICE of Errata re: 8 Notice (Other) by Plaintiffs Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida.. (Wulkan, Lawrence) (Entered: 06/30/2020)

06/30/2020 13

ORDER - IT IS ORDERED: 1. Petitioner's Motion (doc. 9 ) is granted. 2. The Clerk is directed to file Petitioner's proposed Ex Parte Application for Temporary Restraining Order (lodged at doc. 10 ). Signed by Magistrate Judge John Z Boyle on 6/30/2020. (WLP) (Entered: 06/30/2020)

06/30/2020 14

EX PARTE MOTION for Temporary Restraining Order by Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. (Attachments: # 1 Text of Proposed Order)(WLP) (Entered: 06/30/2020)

06/30/2020

Remark: Pro hac vice motion(s) granted for Shari Ross Lahlou, Patrick Nicholas Andriola on behalf of Plaintiffs. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MSA) (Entered: 06/30/2020)

06/30/2020

Remark: Pro hac vice motion(s) granted for Allison Ozurovich on behalf of Plantiffs. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MSA) (Entered: 06/30/2020)

06/30/2020

Remark: Pro hac vice motion(s) granted for Ethan Sanders, Benjamin Sadun on behalf of plaintiffs. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MSA) (Entered: 06/30/2020)

07/02/2020 15

ORDER - (1) Defendants-Respondents Penzone and Maricopa County shall have 14 days from the date of this Order to file a response to the Ex Parte Application for Temporary Restraining

Order (Doc. 14 ), which the Court construes as a Motion for Preliminary Injunction. (2) Plaintiffs shall have 10 days from the filing of Defendants-Respondents' Response to file a Reply. (3) The Clerk of Court must send a copy of this Order to counsel for

07/06/2020 07/06/2020 07/06/2020 07/07/2020 07/07/2020 07/09/2020

Defendants Penzone and Maricopa County by email to vigilj@mcao.maricopa.gov and certified mail to Maricopa County Attorney Civil Services Division, 225 W. Madison St., Phoenix, AZ 85003. (4) Plaintiffs must immediately file a "Notice of Change in Status" if there is any material change in a Plaintiff's custody status. Any request for relief must be made by separate motion and may not be included in the Notice. (See document for further details). Signed by Judge Steven P Logan on 7/2/2020. (LAD) (Entered: 07/02/2020)
Remark: Out of state attorneys Brian Raphel, Victoria Lopez, and Somil Trivedi removed as counsel of record for noncompliance with admission procedures; party or parties represented by other admitted counsel. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 07/06/2020)
Remark: Out of state attorney Timothy Ly removed as counsel of record for noncompliance with admission procedures; party or parties represented by other admitted counsel. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 07/06/2020)
Remark: Pro hac vice motion(s) granted for Brian Christopher Raphel on behalf of Plaintiffs Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 07/06/2020)
17 NOTICE of Appearance by Kevin L Nguyen on behalf of Maricopa, County of, Paul Penzone. (Nguyen, Kevin) (Entered: 07/07/2020)
18 MOTION for Extension of Time to File Response/Reply to Plaintiffs Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief and Ex Parte Application for Temporary Restraining Order by Maricopa, County of, Paul Penzone. (Attachments: # 1 Text of Proposed Order)(Nguyen, Kevin) (Entered: 07/07/2020)
19 ORDER - The 18 Motion is granted. Defendants shall have up to, and including, July 17, 2020 to file a response to Plaintiff's Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief; and Ex Parte Application for Temporary Restraining Order. See document for complete details. Signed by Magistrate Judge John Z Boyle on 7/9/2020. (MSA) (Entered: 07/09/2020)

07/17/2020

20 *MOTION for Extension of Time to File Response/Reply as

to 1 Complaint, 14 Ex Parte MOTION for Temporary Restraining Order by Maricopa, County of, Paul Penzone. (Attachments: # 1 Text of Proposed Order)(Struck, Daniel) *Modified to add document linkage on 7/20/2020 (GMP). (Entered: 07/17/2020)

07/18/2020

21 MOTION for Leave to File Excess Pages for Response to PlaintiffsPetitioners Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief and Ex Parte Application for Temporary Restraining Order by Maricopa, County of, Paul Penzone. (Attachments: # 1 Text of Proposed Order)(Struck, Daniel) (Entered: 07/18/2020)

07/18/2020 22

*Filed at 28 pursuant to 27 -- LODGED Proposed Defendants Response to Plaintiffs Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief and Ex Parte

Application for Temporary Restraining Order re: 14 MOTION for Temporary Restraining Order. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Maricopa, County of, Paul Penzone. (Struck, Daniel) *Modified on 7/20/2020 (WLP). (Entered: 07/18/2020)

07/18/2020

23 *Filed at 29 pursuant to 27 -- LODGED Proposed Declaration of B. Roska parts 1 and 2 is of Defendants Response laintiffs-Petitioners Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief and Ex Parte Application for Temporary

Restraining Order re: 14 MOTION for Temporary Restraining Order. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Maricopa, County of, Paul Penzone. (Attachments: # 1 Roska Declaration 2 of 2)(Struck, Daniel) *Modified on 7/20/2020 (WLP). (Entered: 07/18/2020)

07/18/2020

24 *Filed at 30 pursuant to 27 -- LODGED Proposed Declaration of B. Willias parts 1 and 2 in Support of Defendants Response laintiffsPetitioners Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief and Ex Parte Application for

Temporary Restraining Order re: 14 MOTION for Temporary Restraining Order. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Maricopa, County of, Paul Penzone. (Attachments: # 1 Declaration

of B. Williams part 2 of 2)(Struck, Daniel) *Modified on 7/20/2020 (WLP). (Entered: 07/18/2020)

07/18/2020

25 *Filed at 31 pursuant to 27 -- LODGED Proposed Declaration of G. Phillips in Support of Defendants Response to Plaintiffs Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief and Ex Parte Application for Temporary

Restraining Order re: 14 MOTION for Temporary Restraining Order. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Maricopa, County of, Paul Penzone. (Attachments: # 1 Attachments 1-5 in Support of Declaration of G. Phillips, # 2 Attachments 6-15 in Support of Declaration of G. Phillips, # 3 Attachment 17 in Support of Declaration of G. Phillips)(Struck, Daniel) *Modified on 7/20/2020 (WLP). (Entered: 07/18/2020)

07/18/2020

26 *MOTION to Accept Late Filings re: 22 Lodged Proposed Document, 25 Lodged Proposed Document, 23 Lodged Proposed Document, 24 Lodged Proposed Document te Filing by Maricopa, County of, Paul Penzone. (Attachments: # 1 Text of Proposed Order)(Acedo, Nicholas) *Modified on 7/20/2020 (GMP). (Entered: 07/18/2020)

07/20/2020

27 ORDER - IT IS ORDERED: 1. Respondents' Motion for Leave to File Excess Pages (doc. 21 ) is granted. The Clerk is directed to file Respondents' Proposed Response to the Petition for Writ of Habeas

Corpus (lodged at doc. 22 ) and its corresponding declarations (lodged at docs. 23 , 24 , 25 ). 2. Respondents' Motion to Accept Late Filings (doc. 26 ) is granted. 3. Respondents' Motion for Extension of Time (doc. 20 ) is denied as moot. See document for complete details. Signed by Magistrate Judge John Z Boyle on 7/20/2020. (WLP) (Entered: 07/20/2020)

07/20/2020 28

COMBINED RESPONSE to 1 Petition for Writ of Habeas Corpus
and Complaint for Injunctive and Declaratory Relief, 14 EX PARTE MOTION for Temporary Restraining Order by Defendants Maricopa, County of, Paul Penzone. (WLP) (Entered: 07/20/2020)

07/20/2020

29 DECLARATION of B. Roska in support of 28 Combined Response by Defendants Maricopa, County of, Paul Penzone. (Attachments: # 1 Declaration part 2)(WLP) (Entered: 07/20/2020)

07/20/2020

30 DECLARATION of B. Willias in support of 28 Combined Response by Defendants Maricopa, County of, Paul Penzone. (Attachments: # 1 Declaration part 2)(WLP) (Entered: 07/20/2020)

07/20/2020

31 DECLARATION of G. Phillips in support of 28 Combined Response by Defendants Maricopa, County of, Paul Penzone. (Attachments: # 1 Attachments 1-5 in Support of Declaration of G. Phillips, # 2 Attachments 6-15 in Support of Declaration of G. Phillips, # 3 Attachment 17 in Support of Declaration of G. Phillips)(WLP) (Entered: 07/20/2020)

07/20/2020 32

MOTION to Dismiss Case by Maricopa, County of, Paul Penzone. (This entry was filed to reflect the Motion to Dismiss that was indicated in the same document that was filed at entry 28

Combined Response) (WLP) (Entered: 07/20/2020)

07/20/2020

33 Mail Returned as Undeliverable. Mail sent to Somil Trivedi. Reason for return: Return to Sender: Refused - Unable to Forward. Document number 5. (REK) (Entered: 07/21/2020)

07/21/2020

Remark: Pro hac vice motion(s) granted for Timothy Ly on behalf of Plaintiffs Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, and Jesus Tequida. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 07/21/2020)

07/21/2020

34 NOTICE re: Filing Signed Declaration of G. Phillips, M.D. in Support of Defendants-Respondents' Combined Response to Petition for Writ of Habeas Corpus and Ex Parte Application for Temporary Restraining Order and Defendants-Respondents' Motion to Dismiss Complaint for Injunctive and Declaratory Relief by Maricopa, County of, Paul Penzone re: 31 Declaration . (Attachments: # 1 Signed Declaration of G. Phillips, M.D.)(Nguyen, Kevin) (Entered: 07/21/2020)

07/23/2020

35 NOTICE of Errata re: 32

MOTION to Dismiss Case, 28

Response to Petition for Writ of Habeas Corpus and Ex Parte Application for Temporary Restraining Order by Defendants Maricopa, County of, Paul Penzone.. (Attachments: # 1 Exhibit corrected p. 23, n.9)(Nguyen, Kevin) (Entered: 07/23/2020)

07/27/2020 07/28/2020 07/29/2020 07/30/2020 07/30/2020 07/30/2020

36 *SUPPLEMENT Facts in Support re: 32

MOTION to Dismiss

Case, 28 Response by Defendants Maricopa, County of, Paul Penzone. (Attachments: # 1 Second Declaration of G. Phillips, M.D.)(Nguyen, Kevin) *Modified to correct event on 7/28/2020 (GMP). (Entered: 07/27/2020)

37 *RESPONSE in Opposition re: 11 MOTION to Certify Class and Request to Set Briefing Schedule by Maricopa, County of, Paul Penzone. (Nguyen, Kevin) *Modified to correct event on 7/28/2020 (GMP). (Entered: 07/28/2020)

Remark: Pro hac vice motion(s) granted for Somil Bharat Trivedi on behalf of Plaintiffs Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 07/29/2020)

38 ORDER - IT IS ORDERED: 1. Defendants' Request to Delay Briefing on Plaintiff's Motion for Class Certification (doc. 37 ) is denied. 2. On or before August 14, 2020, Defendants shall respond to Plaintiff's Motion for Class Certification (doc. 11 ). Plaintiffs may file a reply within seven days of the filing date of the response. See document for complete details. Signed by Magistrate Judge John Z Boyle on 7/30/2020. (WLP) (Entered: 07/30/2020)

39 MOTION for Leave to File Excess Pages for Reply in Support of Plaintiffs-Petitioners' Ex Parte Application for a Preliminary Injunction by Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. (Attachments: # 1 Text of Proposed Order)(Wulkan, Lawrence) (Entered: 07/30/2020)

40 *(filed at doc. 44 ) - LODGED Proposed Reply in Support of Plaintiffs-Petitioners' Ex Parte Application for a Preliminary Injunction re: 39 MOTION for Leave to File Excess Pages for Reply in Support of Plaintiffs-Petitioners' Ex Parte Application for a Preliminary Injunction . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. (Wulkan, Lawrence) Modified on 8/4/2020 (GMP). (Entered: 07/30/2020)

07/30/2020
08/03/2020 08/04/2020 08/04/2020 08/07/2020 08/07/2020 08/07/2020

41 NOTICE re: Filing Exhibits Supporting Plaintiffs-Petitioners' Reply In Support of Ex Parte Application for a Preliminary Injunction by Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida re: 39 MOTION for Leave to File Excess Pages for Reply in Support of PlaintiffsPetitioners' Ex Parte Application for a Preliminary Injunction . (Attachments: # 1 Exhibits 1-17 to Notice of Filing Exhibits)(Wulkan, Lawrence) (Entered: 07/30/2020)
42 RESPONSE to Motion re: 32 MOTION to Dismiss Case filed by Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. (Wulkan, Lawrence) (Entered: 08/03/2020)
43 ORDER: Granting Plaintiffs' 39 Motion for Leave to File Excess Pages. The Clerk is directed to file Plaintiffs' proposed Reply (lodged at doc. 40). Signed by Magistrate Judge John Z Boyle on 8/4/20. (GMP) (Entered: 08/04/2020)
44 REPLY to Response to Motion re: 14 MOTION for Temporary Restraining Order filed by Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. (GMP) (Entered: 08/04/2020)
45 MOTION for Leave to File Declaration of G. Phillips and Declaration of B. Williams in Support of Response to Petition for Writ of Habeas Corpus and Ex Parte Application for Temporary Restraining Order by Maricopa, County of, Paul Penzone. (Attachments: # 1 Text of Proposed Order)(Nguyen, Kevin) (Entered: 08/07/2020)
46 *(filed at doc. 49 ) - LODGED Proposed Third Declaration of G Phillips MD re: 45 MOTION for Leave to File Declaration of G. Phillips and Declaration of B. Williams in Support of Response to Petition for Writ of Habeas Corpus and Ex Parte Application for Temporary Restraining Order. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Maricopa, County of, Paul Penzone. (Nguyen, Kevin) Modified on 8/10/2020 (GMP). (Entered: 08/07/2020)
47 *(filed at doc. 50 ) - LODGED Proposed Second Declaration of B. Williams re: 45 MOTION for Leave to File Declaration of G.

08/10/2020 08/10/2020 08/10/2020 08/11/2020 08/14/2020
08/14/2020

Phillips and Declaration of B. Williams in Support of Response to Petition for Writ of Habeas Corpus and Ex Parte Application for Temporary Restraining Order. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Maricopa, County of, Paul Penzone. (Nguyen, Kevin) Modified on 8/10/2020 (GMP). (Entered: 08/07/2020)
48 ORDER: Granting defendant's 45 Motion for Leave to File. The Clerk is directed to file the proposed Declarations (lodged at docs. 46 & 47). Signed by Magistrate Judge John Z Boyle on 8/10/20. (GMP) (Entered: 08/10/2020)
49 Third DECLARATION of G Phillips MD re: 28 Response by Defendants Maricopa, County of, Paul Penzone. (GMP) (Entered: 08/10/2020)
50 Second DECLARATION of B Williams re: 28 Response by Defendants Maricopa, County of, Paul Penzone. (GMP) (Entered: 08/10/2020)
51 NOTICE re: Filing Signed Third Declaration of G. Phillips, M.D. in Support of Defendants-Respondents' Response to Petition for Writ of Habeas Corpus and Ex Parte Application for Temporary Restraining Order by Maricopa, County of, Paul Penzone re: 49 Declaration . (Attachments: # 1 Signed 3rd Declaration of G. Phillips, M.D.)(Nguyen, Kevin) (Entered: 08/11/2020)
52 ORDER: The reference to the Magistrate Judge is withdrawn as to Plaintiff's Ex Parte Application for Temporary Restraining Order 14
, which the Court construes as a Motion for Preliminary
Injunction, and Defendants' Motion to Dismiss 32 .
Defendants' Motion to Dismiss 32 is granted to the extent that the Fourth and Eighth Amendment claims against Defendant Penzone are dismissed. The Motion is denied in all other respects.
Plaintiff's Motion for Preliminary Injunction 14 is denied. Signed by Judge Steven P. Logan on 8/14/2020. (LMR) (Entered: 08/14/2020)
53 RESPONSE in Opposition re: 11 MOTION to Certify Class filed by Maricopa, County of, Paul Penzone. (Nguyen, Kevin) (Entered: 08/14/2020)

08/14/2020 08/14/2020 08/21/2020 08/21/2020
08/27/2020 08/27/2020 09/03/2020 09/08/2020

54 DECLARATION of B. Williams (Third) re: 53 Response in Opposition to Motion for Class Certification by Defendants Maricopa, County of, Paul Penzone. (Nguyen, Kevin) (Entered: 08/14/2020)
55 DECLARATION of G. Phillips MD (Fourth) re: 53 Response in Opposition to Motion for Class Certification by Defendants Maricopa, County of, Paul Penzone. (Nguyen, Kevin) (Entered: 08/14/2020)
56 MOTION Exceed Page Limit for Reply re: 11 MOTION to Certify Class by Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. (Attachments: # 1 Text of Proposed Order)(Wulkan, Lawrence) (Entered: 08/21/2020)
57 *(Filed at doc. 62 ) - LODGED Proposed Reply in Support of Motion for Class Certification re: 56 MOTION Exceed Page Limit for Reply re: 11 MOTION to Certify Class . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. (Wulkan, Lawrence) Modified on 9/8/2020 (GMP). (Entered: 08/21/2020)
58 MOTION for Extension of Time to Answer Plaintiffs Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief by Maricopa, County of, Paul Penzone. (Attachments: # 1 Text of Proposed Order)(Struck, Daniel) (Entered: 08/27/2020)
59 NOTICE re: of Supplemental Authority by Maricopa, County of, Paul Penzone . (Attachments: # 1 Attachment A)(Nguyen, Kevin) (Entered: 08/27/2020)
60 RESPONSE re: 59 Notice (Other) by Plaintiffs Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement. (Wulkan, Lawrence) (Entered: 09/03/2020)
61 ORDER: Plaintiffs' 56 Motion to Exceed Page Limit is granted. The Clerk is directed to File Plaintiffs' Proposed Reply (doc. 57). Defendants' 58 Motion for Extension of Time is granted. On or before September 11, 2020, Defendants shall file their Answer to Plaintiffs' 1 Petition for Writ of Habeas Corpus and Complaint for

09/08/2020 09/11/2020 09/16/2020 09/18/2020
09/25/2020 10/02/2020
11/13/2020 11/13/2020

Injunctive and Declaratory Relief. Signed by Magistrate Judge John Z Boyle on 9/8/20. (GMP) (Entered: 09/08/2020)
62 REPLY to Response to Motion re: 11 MOTION to Certify Class filed by Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. (GMP) (Entered: 09/08/2020)
63 ANSWER to 1 Complaint for Injunctive and Declaratory Relief by Maricopa, County of, Paul Penzone.(Struck, Daniel) (Entered: 09/11/2020)
64 NOTICE of Attorney Withdrawal Clara Spera filed by Lawrence J Wulkan. (Wulkan, Lawrence) (Entered: 09/16/2020)
Remark: Pro hac vice motion(s) granted for Leah Watson on behalf of Plaintiffs Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/18/2020)
65 NOTICE re: Updated COVID-19 Test Results by Maricopa, County of, Paul Penzone . (Attachments: # 1 Exhibit 1)(Nguyen, Kevin) (Entered: 09/25/2020)
66 NOTICE re: Plaintiff-Petitioner's Notice of Supplemental Authority in Support of Class Certification by Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida re: 11 MOTION to Certify Class . (Wulkan, Lawrence) (Entered: 10/02/2020)
67 ORDER - The reference to the Magistrate Judge is withdrawn as to Plaintiffs' Motion for Class Certification (Doc. 11 ) and the Motion is granted. The following Classes and Subclasses as discussed here in are certified. See Order for further details. Signed by Judge Steven P Logan on 11/13/20. (DXD) (Entered: 11/13/2020)
68 NOTICE of Appearance by Victoria Lopez on behalf of Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. (Lopez, Victoria) (Entered: 11/13/2020)

12/16/2020
12/17/2020 01/07/2021
01/27/2021 01/27/2021 02/04/2021 02/22/2021 02/22/2021 03/05/2021

Remark: Pro hac vice motion(s) granted for Corene T Kendrick on behalf of Plaintiffs Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/16/2020)
69 NOTICE of Attorney Withdrawal Eric Balaban filed by Lawrence J Wulkan. (Wulkan, Lawrence) (Entered: 12/17/2020)
70 *ORDER - Case Management Conference set for 2/8/2021 at 11:30 AM in Courtroom 302, 401 West Washington Street, Phoenix, AZ 85003 before Magistrate Judge John Z Boyle. Signed by Magistrate Judge John Z Boyle on 1/7/21. (DXD) *Modified to correct hearing judge; NEF regenerated on 1/8/2021 (MAP)(CEI). (Entered: 01/07/2021)
71 NOTICE re: Withdrawal of Counsel by Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida . (Wulkan, Lawrence) (Entered: 01/27/2021)
72 REPORT of Rule 26(f) Planning Meeting by Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. (Wulkan, Lawrence) (Entered: 01/27/2021)
73 ORDER - Discovery due by 7/6/2021. Dispositive motions due by 12/7/2021. IT IS FURTHER ORDERED that the Case Management Conference scheduled for February 8, 2021 (doc. 70 ) is vacated. (See document for complete details). Signed by Magistrate Judge John Z Boyle on 2/4/21. (SLQ) (Entered: 02/04/2021)
74 NOTICE of Service of Discovery filed by Maricopa, County of, Paul Penzone. (Hesman, Ashlee) (Entered: 02/22/2021)
75 NOTICE of Service of Discovery filed by Ramon Avenenti, Douglas Crough, Jason Fenty, Tamara Ochoa, Dale Perez, Puente Human Rights Movement, Edward Reason, Anthony Scroggins, Brian Stepter, Jesus Tequida. (Wulkan, Lawrence) (Entered: 02/22/2021)
76 NOTICE of Service of Discovery filed by Maricopa, County of, Paul Penzone. (Hesman, Ashlee) (Entered: 03/05/2021)

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Cost:

HudsonErdman
2:20-cv01192-SPLJZB
3.00

 
 1

MGD

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Jason Fenty, et al.,

No. CV 20-01192-PHX-SPL (JZB)

10

Plaintiffs/Petitioners,

11 v.

ORDER

12 Sheriff Paul Penzone, et al.,

13

Defendants/Respondents.

14

15

Plaintiffs/Petitioners Jason Fenty, Brian Stepter, Douglas Crough, Edward Reason,

16 Jesus Tequida, Ramon Avenenti, Anthony Scroggins, Dale Perez, and Tamara Ochoa, who

17 are each confined in a Maricopa County Jail, and the Puente Human Rights Movement

18 (hereafter “Plaintiffs”), have filed through counsel a “Petition for Writ of Habeas Corpus

19 and Complaint for Injunctive and Declaratory Relief” (hereafter “Complaint”). (Doc. 1.)

20 Pending before the Court is Plaintiffs’ Ex Parte Application for Temporary Restraining

21 Order. (Doc. 14.)

22 I. Background

23

Plaintiffs allege in their Complaint that six of them have one or more underlying

24 medical conditions that make them vulnerable to severe adverse consequences if they

25 contract COVID-19 in the jail and that one Plaintiff has contracted COVID-19 but has

26 received inadequate medical care. Plaintiffs assert claims under the Eighth and Fourteenth

27 Amendments, Title II of the Americans with Disabilities Act, and the Rehabilitation Act.

28 Plaintiffs seek Court intervention to require Maricopa County Jails to operate in accordance

1 with “public health principals” by releasing as many medically vulnerable detainees “as

2 reasonable” and requiring “improved social distancing, testing, treatment, education,

3 hygiene and sanitation protocols” for the remaining prisoners and staff. Plaintiffs bring

4 this case as a class action on behalf of two classes: (1) a Pretrial Class, which includes a

5 Pretrial Medically Vulnerable subclass and a Pretrial Disability subclass; and (2) a

6 Postconviction Class, which includes a Postconviction Medically Vulnerable subclass and

7 a Postconviction Disability subclass.1

8

Upon screening, the Court ordered service and required Defendants-Respondents

9 Maricopa County Sheriff Paul Penzone, in his official capacity, and Maricopa County to

10 answer the Complaint. (Doc. 5.)

11 II. Ex Parte Application for Temporary Restraining Order

12

In their Application, Plaintiffs request “immediate improvement of conditions at the

13 Maricopa County jails” with respect to COVID 19 measures; the immediate release of the

14 Pretrial Medically Vulnerable and Pretrial Disability Subclasses “who are incarcerated

15 solely due to their inability to afford a financial condition of release, or whose release

16 Defendants do not object to”; and a process for identifying and promptly releasing other

17 members of the Pretrial Medically Vulnerable and Pretrial Disability Subclasses. (Doc. 14

18 at 37.)

19

A party seeking injunctive relief under Rule 65 of the Federal Rules of Civil

20 Procedure must show that: (1) he is likely to succeed on the merits; (2) he is likely to suffer

21 irreparable harm in the absence of injunctive relief; (3) the balance of equities tips in his

22 favor; and (4) an injunction is in the public interest. Winter v. Natural Resources Defense

23 Council, Inc., 555 U.S. 7, 20 (2008); Pimentel v. Dreyfus, 670 F.3d 1096, 1105-06 (9th Cir.

24 2012); Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7

25 (9th Cir. 2001); see also Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th

26 Cir. 2011) (discussing Ninth Circuit’s “serious questions” test). A temporary restraining

27

28

1 Plaintiffs’ Motion to Certify Class (Doc. 11) is also pending before the Court and

will be addressed in a separate Order.

- 2 -

1 order (“TRO”) under Rule 65(b), unlike a preliminary injunction under Rule 65(a), may be

2 entered before an adverse party has had an opportunity to respond. A TRO may issue if:

3 “(A) specific facts in an affidavit or a verified complaint clearly show that immediate and

4 irreparable injury, loss, or damage will result to the movant before the adverse party can

5 be heard in opposition; and (B) the movant’s attorney certifies in writing any efforts made

6 to give notice and the reasons why it should not be required.” Fed. R. Civ. P. 65(b)

7 (emphasis added).

8

Plaintiffs have not demonstrated that they will suffer irreparable injury before

9 Defendants can be heard in opposition, and therefore fail to meet their burden to

10 demonstrate that they are entitled to immediate ex parte injunctive relief. See Granny

11 Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, 415

12 U.S. 423, 439 (1974). Nor has Plaintiffs’ attorney certified in writing any efforts made to

13 give notice and reasons why it should not be required. The request for a TRO will therefore

14 be denied. The Court will, however, construe Plaintiffs’ Application as a request for

15 injunctive relief and require Defendants-Respondents to respond to Plaintiffs’ request for

16 preliminary injunction and set an expedited briefing schedule.

17

IT IS ORDERED:

18

(1) Defendants-Respondents Penzone and Maricopa County shall have 14 days

19 from the date of this Order to file a response to the Ex Parte Application for Temporary

20 Restraining Order (Doc. 14), which the Court construes as a Motion for Preliminary

21 Injunction.

22

(2) Plaintiffs shall have 10 days from the filing of Defendants-Respondents’

23 Response to file a Reply.

24

(3) The Clerk of Court must send a copy of this Order to counsel for Defendants

25 Penzone and Maricopa County by email to vigilj@mcao.maricopa.gov and certified mail

26 to Maricopa County Attorney Civil Services Division, 225 W. Madison St., Phoenix, AZ

27 85003.

28

- 3 -

1

(4) Plaintiffs must immediately file a “Notice of Change in Status” if there is any

2 material change in a Plaintiff’s custody status. Any request for relief must be made by

3 separate motion and may not be included in the Notice.

4

Dated this 2nd day of July, 2020.

5

6

Honorable Steven P. Logan

7

United States District Judge

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 Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 1 of 42

1

MGD

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Jason Fenty, et al.,

No. CV 20-01192-PHX-SPL (JZB)

10

Plaintiff,

11 v.

ORDER

12 Paul Penzone, et al.,

13

Defendants.

14

15

16

On June 16, 2020, Plaintiffs/Petitioners Jason Fenty, Brian Stepter, Douglas

17 Crough, Edward Reason, Jesus Tequida, Ramon Avenenti, Anthony Scroggins, Dale Perez,

18 and Tamara Ochoa, who are each confined in a Maricopa County Jail, and the Puente

19 Human Rights Movement (hereafter, “Plaintiffs”), filed a “Petition for Writ of Habeas

20 Corpus and Complaint for Injunctive and Declaratory Relief” (hereafter, “Complaint”).

21 (Doc. 1.) Pending before the Court is Plaintiffs’ Ex Parte Application for Temporary

22 Restraining Order (TRO) (Doc. 14), which the Court has construed as a request for

23 injunctive relief. Also pending is Defendants/Respondents’ (hereafter, “Defendants”)

24 Motion to Dismiss filed as part of their Response to Plaintiffs’ request for injunctive relief.

25 (Doc. 32.)

26 I. Complaint

27

Plaintiffs allege in their Complaint that six of them have underlying medical

28 conditions that make them vulnerable to severe adverse consequences if they contract

COVID-19 while in jail and that one Plaintiff has contracted COVID-19 but has received

Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 2 of 42

1 inadequate medical care.1 (Doc. 1.) Plaintiffs bring this case as a putative class action on

2 behalf of two proposed classes: (1) a Pretrial Class, which includes a Pretrial Medically

3 Vulnerable subclass and a Pretrial Disability subclass; and (2) a Post-Conviction Class,

4 which includes a Post-Conviction Medically Vulnerable subclass and a Post-Conviction

5 Disability subclass.2 (Id. ¶¶ 22-31.)

6

Six Plaintiffs—Jason Fenty, Dale Perez, Anthony Scroggins, Brian Stepter, Douglas

7 Crough, and Tamara Ochoa—are pretrial detainees seeking to represent the Pretrial Class

8 and several of them seek to represent the Pretrial Medically Vulnerable subclass, which is

9 defined as all current and future detainees who are 50 years or older and those of any age

10 with conditions that place them at heightened risk of severe illness or death from COVID-

11 19, such as lung disease, heart disease, chronic liver or kidney disease, diabetes,

12 hypertension, compromised immune systems, developmental disability, severe obesity,

13 and moderate to severe asthma. (Id. ¶¶ 23-26.) In addition, Fenty, Stepter, Crough, and

14 Scroggins also seek to represent the Pretrial Disability subclass because all are over 50

15 years old and have disabilities that put them at increased risk of serious illness or death if

16 they contract COVID-19.3 (Id. ¶¶ 25-26.) Three Plaintiffs—Edward Reason, Jesus

17 Tequida, and Ramon Avenenti—are post-conviction prisoners and seek to represent the

18 Post-Conviction Class, with Reason and Tequida seeking to represent both the Post-

19 Conviction Medically Vulnerable subclass and the Post-Conviction Disability subclass.4

20

21

1 COVID-19, a disease caused by a novel strain of coronavirus (SARS-CoV-2), was declared a global pandemic by the World Health Organization on March 11, 2020. See

22

Timeline: WHO’s COVID-19 response, https://www.who.int/emergencies/diseases/novelcoronavirus-2019/interactive-timeline#! (last accessed Aug. 4, 2020).

23

2 Plaintiffs’ Motion to Certify Class (Doc. 11) is also pending before the Court and

24 will be addressed in a separate Order.

25

3 Fenty is 48 years-old and has stage 2 hypertension, chest pain, PTSD, and adjustment disorder with anxiety. (Doc. 1 ¶ 9.) Stepter is 61 years-old and has chronic

26

respiratory problems that require oxygen to clear his lungs and high blood pressure requiring medication. (Id. ¶ 10.) Crough is 55 years-old and has a heart condition, chronic

27

obstructive pulmonary disease (COPD), hepatitis, and chest pain caused by stable angina. (Id. ¶ 11.) Scroggins is 44 years-old and suffers asthma and schizophrenia. (Id. ¶ 15.)

28

4 Reason is 62 years-old and has severe asthma. (Doc. 1 ¶ 12.) Tequida is 64 years-

old and has high blood pressure, kidney failure, cardiomyopathy, cardiomegaly, heart

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 3 of 42

1 (Id. ¶¶ 27-30.) Plaintiff Puente Human Rights Movement (“Puente”) is a grassroots

2 nonprofit organization based in Phoenix, Arizona, that has launched a public campaign “to

3 support incarcerated people at the Maricopa County jails and raise public awareness about

4 COVID-19 for incarcerated people and their families.” (Id. ¶ 18.) Puente seeks declaratory

5 and injunctive relief in this case to protect the rights of people incarcerated in the Maricopa

6 County jails. (Id.)

7

Plaintiffs allege that there has been an explosion of COVID-19 cases in the

8 Maricopa County Jails and Defendants have failed to provide, among other things:

9 adequate COVID-19 testing or screening of newly booked detainees; adequate COVID-19

10 testing or screening of prisoners with symptoms or those exposed to someone known or

11 suspected of having COVID-19; proper cohorting and quarantine; adequate protections for

12 medically vulnerable and disabled prisoners; adequate social distancing; adequate

13 cleaning, hygiene, and decontamination procedures; adequate personal protective

14 equipment (PPE); and timely and adequate prisoner education about COVID-19 and

15 prevention methods. (Id. ¶ ¶ 63-158.)

16

Plaintiffs assert the following claims:

17

• Counts One, Three and Five assert Fourteenth

18

Amendment conditions-of-confinement claims on behalf of

Puente and the Pretrial detainees pursuant to 42 U.S.C. § 1983.

19

(Id. ¶¶ 159-168, 178-80, 189-194.)

20 • Count Two asserts an Eighth Amendment conditions of

21

confinement claim on behalf of the Post-Conviction prisoners

22

pursuant to 42 U.S.C. § 1983. (Id. ¶¶ 169-177.)

23

• Count Four seeks a writ of habeas corpus pursuant to 28

24

U.S.C. § 2241 on behalf of Fenty, Stepter, Crough, and Scroggins from the Pretrial Medically Vulnerable subclass for

25

their release or “enlargement.” (Id. ¶¶ 181-188.)

26

• Counts Six and Seven assert claims under Title II of the

27

Americans with Disabilities Act (ADA) and Section 504 of the

28 failure, hepatitis, and liver and prostate problems. (Id. ¶ 13.)

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 4 of 42

1

Rehabilitation Act (RA) on behalf of the Pretrial and Post-

Conviction Disability subclasses and Puente. (Id. ¶¶ 195-215.)

2

3

Plaintiffs seek declaratory and injunctive relief and/or writs of habeas corpus

4 requiring Maricopa County Jails to release the Pretrial Medically Vulnerable and Disability

5 Subclass members who are incarcerated solely due to their inability to afford a financial

6 condition of release, or whose release Defendants do not object to, and a process for

7 considering the release or enlargement of the remaining members of those subclasses; and

8 injunctive relief “to abate the risk of the spread of COVID-19” and to provide for the

9 release of information regarding the ongoing COVID-19 outbreak at the Maricopa County

10 jails, among other measures. (Id. at 47-50.)

11

Upon screening, the Court ordered service and required Defendants Maricopa

12 County and Maricopa County Sheriff Paul Penzone, in his official capacity, to answer the

13 Complaint. (Doc. 5.)

14

Following screening, Plaintiffs filed their Ex Parte Application for TRO. (Doc. 14.)

15 In an Order dated July 2, 2020, the Court found that Plaintiffs had not demonstrated that

16 they will suffer irreparable injury before Defendants can be heard in opposition and thus

17 failed to meet their burden of demonstrating they were entitled to immediate ex parte

18 injunctive relief. (Doc. 15 at 3.) The Court therefore construed Plaintiff’s Ex Parte

19 Application for TRO as a motion for injunctive relief and set an expedited briefing

20 schedule. (Id.)

21 II. Motion to Dismiss

22

Defendants argue in their Motion to Dismiss that Defendant Penzone should be

23 dismissed; Plaintiff Reason’s claims are moot; Plaintiff Puente lacks standing; no Plaintiff

24 has standing to pursue ADA or RA claims at the Towers, Estrella or 1280 Jails; no Plaintiff

25 has standing to pursue constitutional claims at the 1280 Jail; and the Post-Conviction

26 Plaintiffs lack standing to pursue constitutional claims at Towers and Estrella Jails. (Doc.

27 28 at 52.) Defendants also appear to move for dismissal under Federal Rule of Civil

28 Procedure 12(b)(6), arguing that Plaintiffs’ factual allegations fall short of establishing

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 5 of 42

1 punitive intent, deliberate indifference, or reckless disregard, and fail to demonstrate

2 disability-based discrimination. (Id.) And, Defendants argue that Plaintiffs have failed to

3 exhaust their state-court and administrative remedies. (Id. at 21-26.)

4

A. Sufficiency of the Allegations

5

A Rule 12(b)(6) motion “tests the legal sufficiency of a claim.” Navarro v. Block,

6 250 F.3d 729, 732 (9th Cir. 2001). In deciding a Rule 12(b)(6) motion, the court takes all

7 allegations of material fact as true and construes them in the light most favorable to the

8 nonmoving party. Marcus v. Holder, 574 F.3d 1182, 1184 (9th Cir. 2009). The court will

9 “presume that general allegations embrace those specific facts that are necessary to support

10 the claim.” Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quotation

11 omitted).

12

A Rule 12(b)(6) motion to dismiss is almost never an appropriate response when the

13 Court has already screened a prisoner complaint pursuant to 28 U.S.C. § 1915A(b) and

14 directed the defendants to respond. The standard for dismissal under Rule 12(b)(6) is

15 identical to the standard under 28 U.S.C. § 1915A(b) (“fail[ure] to state a claim upon which

16 relief may be granted”). After the Court has screened a prisoner complaint pursuant to

17 § 1915A(b), a Rule 12(b)(6) motion to dismiss should be granted only if the defendants

18 can convince the Court that reconsideration is appropriate. When the challenged order is

19 not a final judgment or appealable interlocutory order, the Court will grant a motion for

20 reconsideration if:

21 (1) There are material differences in fact or law from that

22

presented to the Court and, at the time of the Court’s decision,

23

the party moving for reconsideration could not have known of the factual or legal differences through reasonable diligence;

24

25

(2) There are new material facts that happened after the Court’s decision;

26

(3) There has been a change in the law that was decided or

27

enacted after the Court’s decision; or

28

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 6 of 42

1

(4) The movant makes a convincing showing that the Court

failed to consider material facts that were presented to the

2

Court before the Court’s decision.

3

No motion for reconsideration shall repeat in any manner any

4

oral or written argument made in support of or in opposition to

5

the original motion.

Motorola, Inc. v. J.B. Rodgers Mechanical Contractors, 215 F.R.D. 581, 586 (D. Ariz. 6

2003). 7

As noted, the Court screened the Complaint and determined that Plaintiff’s 8
allegations sufficiently stated claims for relief against Defendants. (Doc. 5.) Defendants 9
present nothing that warrants reconsideration of the Screening Order. Accordingly, 10
dismissal under Rule 12(b)(6) is not appropriate, and the Court will deny Defendants’ 11
Motion to Dismiss on this basis. 12

B. Exhaustion under the PLRA 13
Under the PLRA, a prisoner must exhaust “available” administrative remedies 14
before filing an action in federal court. See 42 U.S.C. § 1997e(a); Vaden v. Summerhill, 15
449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 934–35 (9th Cir. 16

2005). The prisoner must complete the administrative review process in accordance with 17
the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). Exhaustion is required 18

for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 (2002), regardless of the 19
type of relief offered through the administrative process, Booth v. Churner, 532 U.S. 731, 20
741 (2001). 21
The “failure to exhaust is an affirmative defense under the PLRA, . . . inmates are 22
not required to specially plead or demonstrate exhaustion in their complaints.” Jones v. 23
Bock, 549 U.S. 199, 216 (2007). In a limited number of cases, the failure to exhaust may 24
be clear from the face of the complaint; however, “such cases will be rare because a 25
plaintiff is not required to say anything about exhaustion in his complaint.” Albino v. Baca, 26
747 F.3d 1162, 1169 (9th Cir. 2014); see Jones v. Bock, 549 U.S. 199, 216 (2007) (failure 27
to exhaust is an affirmative defense and a prisoner is not required to plead or demonstrate 28

exhaustion in the complaint). In the rare case where failure to exhaust is clear from the

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 7 of 42

1 face of the complaint, the defendant may move to dismiss under Rule 12(b)(6). Albino,

2 747 F.3d at 1169. To properly be considered on a Rule 12(b)(6) motion, the nonexhaustion

3 defense must raise no disputed issues of fact. See Scott v. Kuhlmann, 746 F.2d 1377, 1378

4 (9th Cir. 1984) (affirmative defense may be raised by motion to dismiss only if “the defense

5 raises no disputed issues of fact”). Typically, to show that a prisoner has failed to exhaust

6 remedies, a defendant will have to present probative evidence on a motion for summary

7 judgment under Rule 56. Albino, 747 F.3d at 1169.

8

Here, the Court cannot conclude from the face of the Complaint that administrative

9 remedies were made available to Plaintiffs and that they failed to exhaust those remedies.

10 In support of their Motion, Defendants have included several grievances Plaintiffs filed

11 while in MCSO custody, a copy of the MCSO Rules and Regulations for Inmates, a copy

12 of the MCSO Inmate Grievance Procedure, and a signed declaration from MCSO

13 Commander/Executive Lieutenant B. Williams attesting to MCSO’s grievance procedures

14 and Plaintiffs’ grievance histories. (Doc. 30.) Defendants argue that these exhibits show

15 that Plaintiffs did not fully exhaust their claims prior to filing their Complaint. But if the

16 Court considers these documents, which are not incorporated by the Complaint, it is going

17 beyond the face of the Complaint to determine whether Plaintiffs properly exhausted their

18 claims. This is not permitted on a Rule 12(b)(6) motion for non-exhaustion. See Albino,

19 747 F.3d at 1169. At this early stage of the litigation, the Court declines to convert

20 Defendants’ Motion to Dismiss into a summary judgment motion.

21

For the above reasons, this is not one of “those rare cases where a failure to exhaust

22 is clear from the face of the complaint.” Id. Accordingly, Defendants’ Motion to Dismiss

23 based on failure to exhaust will be denied. Defendants may renew their exhaustion

24 argument in a properly supported summary judgment motion.

25

C. Defendant Penzone

26

Defendants argue that Penzone should be dismissed because the official capacity

27 claims against him are duplicative of the policy or practice claims against Maricopa

28 County. (Doc. 28 at 36.) Plaintiffs respond that to the extent the County is acknowledging

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 8 of 42

1 that it is a proper Defendant for Plaintiffs’ municipal liability claims, they agree that the

2 Court may dismiss Penzone as a Defendant for the conditions of confinement claims but

3 that Penzone is a necessary party for Plaintiff’s habeas claim, which Defendants conceded

4 in their Response. (Doc. 42 at 4, citing Doc. 32 at 2 n.2 (“The proper Respondent for

5 purposes of Petitioners’ Habeas Petition is Sheriff Penzone . . . .”).)

6

Based on these averments, the Court will dismiss Penzone as to Plaintiff’s Eighth

7 and Fourteenth Amendment conditions-of-confinement claims only.

8

D. Plaintiff Reason

9

Defendants argue that Plaintiff Reason’s claims are moot because he was released

10 from custody on July 11, 2020. (Doc. 28 at 36.) Plaintiffs agree that Reason’s individual

11 claims are moot, but argue that has no effect on the viability of his claims for the class as

12 a whole, on any other Plaintiff individually, or as a class representative. (Doc. 42 at 3 n.1.)

13

The Court will deny Defendants’ motion to dismiss Reason at this time because the

14 Court has not yet ruled on the motion for class certification and “mooting the putative class

15 representative’s claims will not necessarily moot the class action.” Pitts v. Terrible Herbst,

16 Inc., 653 F.3d 1081, 1090 (9th Cir. 2011).

17

E. Plaintiff Puente

18

Defendants argue that Puente lacks standing in its own right as an organization

19 because it does not claim it was deprived of any personal right guaranteed by the Fourteenth

20 and Eighth Amendments and the ADA/RA with respect to jail conditions and that

21 prudential limitations bar Puente’s ability to directly sue in their own right for the alleged

22 injuries of third parties. (Doc. 28 at 32.) Defendants also contend that Puente cannot

23 establish direct standing because it has failed to show that the conditions of confinement

24 and alleged ADA/RA discrimination impaired its organizational purpose, that its primary

25 purpose is promoting the healthcare of inmates or other confinement conditions in jails or

26 accommodating inmates with disabilities, and because Puente cannot manufacture its own

27 injuries. (Id. at 33-34.)

28

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 9 of 42

1

Plaintiffs respond that Puente has both organizational and associational standing.

2 (Doc. 42 at 7.) Plaintiffs assert that Puente has organizational standing based on its

3 allegations that Puente diverted resources away from other programming in order to raise

4 public awareness about COVID-19 in Maricopa County jails, that its mission involves

5 educating, advocating for, and empowering immigrants, including those who are

6 incarcerated, and that the immigrant community it serves is impacted by the spread of

7 COVID-19 in the Maricopa County jails. (Id. at 8.) Plaintiffs also argue that Puente has

8 associational standing based on its allegations that some of Puente’s members have family

9 who are incarcerated in the Maricopa County jails and the family members can bring

10 habeas claims.

11

A “concrete and demonstrable injury to the organization’s activities—with the

12 consequent drain on the organization’s resources—” is sufficient to confer direct (i.e.,

13 organizational) standing on an organization. Havens Realty Corp. v. Coleman, 455 U.S.

14 363, 379 (1982). “[A]n organization may satisfy the Article III requirement of injury in

15 fact if it can demonstrate: (1) frustration of its organizational mission; and (2) diversion of

16 its resources to combat the [effects of the particular law] in question.” Smith v. Pac.

17 Properties & Dev. Corp., 358 F.3d 1097, 1105 (9th Cir. 2004) (citing Fair Hous. of Marin

18 v. Combs, 285 F.3d 899, 905 (9th Cir.2002)). An organization cannot, however,

19 “manufacture the injury by incurring litigation costs or simply choosing to spend money

20 fixing a problem that otherwise would not affect the organization at all. It must instead

21 show that it would have suffered some other injury if it had not diverted resources to

22 counteracting the problem.” Valle del Sol v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013)

23 (citation and internal quotation omitted).

24

In this case, the Complaint alleges that Puente’s membership is made up of

25 “hundreds of individuals across Arizona, including undocumented and mixed status

26 immigrant households, [and] people who have been incarcerated as well as their impacted

27 families, and youth members.” (Doc. 1 ¶ 18.) In addition to developing, educating, and

28 empowering immigrant communities, Puente also conducts programs and advocacy on

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 10 of 42

1 behalf of detained people across Arizona. (Id.) Plaintiffs allege that “[a]s a result of

2 Defendants’ failure to adequately protect individuals incarcerated at the Maricopa County

3 jails from the dangers of COVID-19, Puente has launched a full-fledged public campaign

4 to support incarcerated people at the Maricopa County jails and raise public awareness

5 about COVID-19 for incarcerated people and their families.” (Id.) To do so, Puente alleges

6 that “[t]his effort has come at the expense of other programming, requiring Puente to divert

7 resources to this campaign while scaling down other campaigns,” including by “setting up

8 a hotline to monitor conditions inside of the jails and respond to the concerns of

9 incarcerated people and their families, organizing regular protests, creating petitions,

10 drafting letters to public officials, and producing communications materials.” (Id.)

11

These allegations are sufficient to support that Puente has suffered injury in fact

12 such that Puente has standing in its own right. See E. Bay Sanctuary Covenant v. Barr,

13 950 F.3d 1242, 1265 (9th Cir. 2020) (“We have read Havens to hold that an organization

14 has direct standing to sue where it establishes that the defendant’s behavior has frustrated

15 its mission and caused it to divert resources in response to that frustration of purpose.”)

16

Accordingly, the Court will deny Defendants’ motion to dismiss Puente for lack of

17 standing.

18

F. Standing Regarding Conditions at Towers, Estrella or 1280 Jails

19

Defendants argue that the Pretrial Plaintiffs lack standing to challenge the conditions

20 at the 1280 Jail because no Pretrial Plaintiff is incarcerated at the 1280 Jail and the Post-

21 Conviction Plaintiffs lack standing to challenge the conditions at the Towers and Estrella

22 Jails because no Post-Conviction Plaintiffs are incarcerated in those jails. (Doc. 28 at 31-

23 32.) Defendants therefore argue that the ADA/RA claims should be dismissed with respect

24 to the conditions at all three jails, the Fourteenth Amendment claims should be dismissed

25 with respect to the 1280 Jail, and the Eighth Amendment claims should be dismissed with

26 respect to the Towers and Estrella Jails. (Id. at 32.)

27

Plaintiffs respond that Defendants have failed to account for the fact that detention

28 officers and incarcerated persons move between the jails. (Doc. 42 at 5.) Plaintiffs cite to

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 11 of 42

1 the Declarations of Fenty, Avenenti, Boykins, Lewis, Ochoa, Perez, Stepter, who describe

2 the fluidity of their housing and contacts with detainees/prisoners from other jails. For

3 example, Plaintiff Fenty describes being moved from the Towers Jail to medical isolation

4 at the Fourth Avenue Jail and that, during the transport, people were picked up from the

5 Lower Buckeye and 1280 Jails for nightly cleaning shifts at the Fourth Avenue Jail. (Id.)

6 Plaintiff Avenenti was also moved from Towers Jail to the Fourth Avenue Jail where he

7 was in medical isolation with people from the 1280 and the Lower Buckeye Jails. (Id.)

8 Plaintiff Boykins was held in a crowded waiting room at a courthouse with people from

9 other facilities and no ability to remain six feet away from anybody. (Id.) Plaintiff Ochoa

10 describes people housed at Estrella Jail being taken to the Fourth Avenue Jail for rebooking

11 and then returned the following day to Estrella Jail. (Id.) Plaintiff Perez explains that

12 meals at the Towers Jail are served by trustees from the 1280 Jail. (Id.) Plaintiff Stepter

13 describes being transported in a crowded van from the Towers Jail to the Lower Buckeye

14 Jail in mid-May, dropping off some prisoners at the Durango Jail, and that none of the

15 prisoners had masks or their temperatures checked and some were coughing. (Id. at 5-6.)

16

Plaintiffs also argue that whether Plaintiffs in certain classes are housed at a

17 particular jail is immaterial because Plaintiffs are alleging statutory and constitutional

18 violations and injury across all facilities. (Id. at 6.) And they contend that Defendants

19 confuse standing and class certification, and that an alleged dissimilarity between the

20 claims of named and unnamed plaintiffs is not a question of standing, but of class

21 certification. (Id. at 6-7.)

22

In this case, Plaintiffs’ claims are not about the specific facilities where each is

23 housed, but about Defendants’ policies and practices with respect to COVID-19 at all

24 Maricopa County jails. Moreover, because of the high turnover at the jails and the

25 movement between jail facilities, it would be unreasonable to limit Plaintiffs’ claims to a

26 specific facility when all facilities are subject to the same policies and practices. Finally,

27 to the extent Defendants are arguing that the named Plaintiffs are not proper class

28 representatives, they may make that argument in their Response to Plaintiffs’ Motion for

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 12 of 42

1 Class Certification. Accordingly, the Court will deny Defendants’ Motion to Dismiss on

2 this basis.

3

G. Exhaustion of State Court Remedies

4

1. Post-Conviction Plaintiffs

5

Defendants argue that Post-Conviction Plaintiffs Reason, Tequida, and Avenenti

6 may only bring a habeas action pursuant to 28 U.S.C. § 2254, not § 2241, and that a § 2254

7 petition may not be granted unless it appears that the applicant “has exhausted the remedies

8 available in the courts of the State.” (Doc. 28 at 21 (quoting 28 U.S.C. §§ 2254(b)(1)(A),

9 and 2254 (c)).)

10

Only Count Four of the Complaint seeks a writ of habeas corpus and that is pursuant

11 to 28 U.S.C. § 2241 on behalf of Pretrial Plaintiffs Fenty, Stepter, Crough, and Scroggins

12 from the Pretrial Medically Vulnerable subclass. (Doc. 1 ¶¶ 181-188.) Because Plaintiffs

13 are not seeking habeas relief on behalf of the Post-Conviction Plaintiffs, Defendants’

14 argument is without merit and the Court will deny the motion to dismiss on this basis.

15

2. Pretrial Plaintiffs

16

Defendants argue that while the Pretrial Plaintiffs may seek habeas relief under 28

17 U.S.C. § 2241, they did not exhaust their state-court remedies prior to filing their request

18 for habeas relief in this Court, which bars their petition. (Doc. 28 at 22.) They argue that

19 while pretrial detainees may seek to modify their release conditions, none of the Pretrial

20 Plaintiffs in this action have exhausted their claims through this state-court remedy. (Id.

21 (citing Arizona Rule of Criminal Procedure 7.2 and Ariz. Rev. Stat. § 13-3967).)

22 Defendants further argue that none of the narrow exceptions to the Younger abstention

23 doctrine apply here and this Court must therefore abstain from interfering with the Pretrial

24 Plaintiffs pending criminal proceedings in state court. (Id. at 23-24.)

25

Plaintiffs respond that courts have discretion to waive compliance with the

26 exhaustion process when administrative remedies would be inadequate, futile, or pursuit

27 of those remedies would cause irreparable injury. (Doc. 40 at 31-32 (citing Ward v.

28 Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012).)) Plaintiffs argue that any delay in judicial

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 13 of 42

1 review would clearly result in irreparable injury to the medically vulnerable prisoners who

2 are at high risk of serious illness or death should they contract COVID-19 in the jails where

3 cases are rising exponentially. (Id. (citing McPherson v. Lamont, 2020 WL 2198279, at

4 *7 (D. Conn. May 6, 2020).))

5

Challenges to pretrial incarceration may be properly brought pursuant to 28 U.S.C.

6 § 2241. McNeeley v. Blanas, 336 F.3d 822, 824 n.1 (9th Cir. 2003). Section 2241(c)(3)

7 provides that “the writ of habeas corpus [extends to persons who are] . . . in custody in

8 violation of the Constitution or laws or treaties of the United States . . . .” “As an exercise

9 of judicial restraint, however, federal courts elect not to entertain habeas corpus challenges

10 to state court proceedings until habeas petitioners have exhausted state avenues for raising

11 [a] federal claim.” Carden v. Montana, 626 F.2d 82, 83 (9th Cir. 1980). Nevertheless,

12 “[t]his exhaustion requirement is subject to waiver in § 2241 cases because it is not a

13 ‘jurisdictional prerequisite.’” Ward, 678 F.3d at 1045 (quoting Castro-Cortez v. INS, 239

14 F.3d 1036, 1047); see also Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017) (“The

15 exhaustion requirement is prudential, rather than jurisdictional, for habeas claims.”). And,

16 exhaustion can be waived “if pursuing those [administrative] remedies would be futile.”

17 Ward, 678 F.3d at 1045 (quoting Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th

18 Cir. 1998)). The court may require prudential exhaustion when:

19

(1) agency expertise makes agency consideration necessary to

20

generate a proper record and reach a proper decision; (2)

relaxation of the requirement would encourage the deliberate

21

bypass of the administrative scheme; and (3) administrative

22

review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review.

23

Hernandez, 872 F.3d at 988 (quoting Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) 24

(citations omitted).) 25

In this case, exhaustion under § 2241 is not necessary because the constitutional 26

claims Plaintiffs present do not require development of an administrative record, waiver of 27

exhaustion in this extraordinary circumstance of a pandemic would not encourage future 28

habeas petitioners to bypass the administrative scheme, and administrative review of

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1 Plaintiffs’ claims would be futile because of the length of time it would take to complete

2 the process in the state courts.

3

While the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971)

4 ordinarily prevents a federal court in most circumstances from directly interfering with

5 ongoing criminal proceedings in state court, a federal court may entertain a pretrial habeas

6 corpus petition in certain “extraordinary circumstances where irreparable injury can be

7 shown.” Carden, 626 F.2d at 84 (quoting Perez v. Ledesma, 401 U.S. 82, 85 (1971)).

8

In this case, the Court finds that the pandemic and the possibility of irreparable harm

9 to the medically vulnerable Pretrial Plaintiffs who are at high risk of contracting and dying

10 from COVID-19 is an extraordinary circumstance potentially warranting this Court’s

11 intervention. Accordingly, the Court will deny Defendants’ Motion to Dismiss on this

12 basis.

13 III. Motion for Preliminary Injunction

14

A. COVID-19

15

Because of the rapidly changing nature of the COVID-19 pandemic, the Court will

16 set forth what is currently known about the situation. As of August 6, 2020, 4,870,367

17 individuals have been confirmed as positive for COVID-19 in the United States, of which

18 159,864 have died.5 In Arizona, 182,203 confirmed positive cases have been identified, of

19 which 3,932 have died.6 As of August 6, 2020, 1,420 positive cases have been identified

20 in Maricopa County Jails out of 6,046 tests, with 322 cases awaiting results, one

21 hospitalization, and no reported deaths.7

22

The United States Department of Health and Human Services Centers for Disease

23 Control and Prevention (“CDC”) reports that individuals who contract and transmit

24 COVID-19 experience symptoms that range from negligible, with some individuals

25

5 Coronavirus Resource Center: COVID-19 Dashboard, Johns Hopkins Univ. &

26 Med., https://coronavirus.jhu.edu (last accessed Aug. 6, 2020).

27

6 Id.

28

7Maricopa County, COVID- 19 In County Jails https://www.maricopa.gov/5574/C OVID-19-in-County-Jails (last accessed Aug. 3, 2020). When Plaintiffs filed their motion

on June 30, 2020, there were 565 positive cases identified. (Doc. 14 at 9.)

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 15 of 42

1 remaining entirely asymptomatic, to mild, such as fever, coughing, headache, and difficulty

2 breathing, to severe, including acute respiratory distress, severe pneumonia, septic shock,

3 and multi-organ failure, or even death.8 The risk of suffering severe illness or death from

4 COVID-19 increases with age with older adults at greatest risk.9 In addition, individuals

5 of any age with underlying medical conditions including cancer, chronic obstructive

6 pulmonary disease, an immunocompromised state, obesity, a serious heart condition such

7 as heart failure, coronary artery disease, or cardiomyopathies, sickle cell disease, and Type

8 II diabetes mellitus are at an increased risk for severe illness, and individuals with other

9 conditions such as moderate to severe asthma, hypertension, liver disease, pulmonary

10 fibrosis, Type 1 diabetes mellitus, cerebrovascular disease, neurologic conditions such as

11 dementia, pregnancy, and smoking may be at an increased risk for severe illness from

12 COVID-19.10

13

While the CDC is still learning how the virus spreads, “COVID-19 is thought to

14 spread mainly through close contact from person-to-person,” through respiratory droplets

15 produced when an infected person coughs, sneezes, or talks, and some people without

16 symptoms may be able to spread the virus.11 Symptoms may appear 2 to 14 days after

17 exposure to the virus.12 There is currently no vaccine to prevent COVID-19, and the CDC

18 recommends that to avoid exposure and transmission, the public should maintain a physical

19

20

8 CDC Interim Clinical Guidance for Management of Patients with Confirmed

21

Coronavirus Disease (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clini cal-guidance-management-patients.html (last accessed July 31, 2020).

22

9 CDC Coronavirus Disease 2019 (COVID- 19), Older Adults, https://www.cdc.go

23

v/coronavirus/2019-ncov/need-extra-precautions/older-adults.html (last accessed July 31, 2020).

24

10 CDC People With Certain Medical Conditions, https://www.cdc.gov/coronaviru

s/2019-ncov/need-extra-precautions/people-with-

25 medical- conditions.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoron

avirus%2F2019-ncov%2Fneed-extra-precautions%2Fgroups-at-higher-

26 risk.html (last accessed June 1, 2020).

27

11 CDC, How COVID-19 Spreads, https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/how-covid-spreads.html (last accessed July 31, 2020).

28

12 CDC, Symptoms of Coronavirus, https://www.cdc.gov/coronavirus/2019-

ncov/symptoms-testing/symptoms.html (last accessed July 31, 2020).

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 16 of 42

1 distance of at least six feet from others, cover the nose and mouth with a mask, frequently

2 wash hands with soap and water for at least 20 seconds or use hand sanitizer, and disinfect

3 frequently touched surfaces daily.13 High-risk individuals should take additional “special

4 precautions,” such as continued active treatment of their underlying medical conditions,

5 obtaining vaccinations against other diseases like influenza and pneumococcal illness,

6 staying home, and remaining away from others as much as possible.14

7

B. Detention Facility COVID-19 Guidance

8

The CDC’s “Interim Guidance on Management of Coronavirus Disease 2019

9 (COVID-19) in Correctional and Detention Facilities” (“CDC Guidance”),15 updated as of

10 July 14, 2020, provides guidance to healthcare and non-healthcare administrators in

11 correctional and detention facilities “to assist in preparing for potential introduction,

12 spread, and mitigation of SARS-CoV-2 (the virus that causes Coronavirus Disease 2019,

13 or COVID-19) in their facilities.” (CDC Guidance at 1.) The guidance reports there is a

14 heightened risk of transmission of COVID-19 to and among individuals within correctional

15 and detention facilities due to, among other things, the number of sources which can

16 introduce them into a facility’s population, including facility staff, visitors, contractors,

17 vendors, legal representatives, court staff, new detainees, and high turnover; the congregate

18 environment in which detainees “live, work, eat, study, and participate in activities”; and

19 limited medical isolation options, hygiene supplies, and dissemination of accurate

20 information among detainees. (Id. at 2.)

21

The guidance states that “[a]lthough social distancing is challenging to practice in

22 correctional and detention environments, it is a cornerstone of reducing transmission of

23 respiratory diseases such as COVID-19.” (CDC Guidance at 6.) It recommends

24

25

13 CDC How to Protect Yourself & Others, https://www.cdc.gov/coronavirus/2019 -ncov/prevent-getting-sick/prevention.html (last accessed July 31, 2020).

26

14 CDC People at Increased Risk, https://www.cdc.gov/coronavirus/2019-

ncov/need-extra-precautions/groups-at-higher-risk.html (last accessed July 31, 2020).

27

15 CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID-

28

19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html (last accessed

Aug. 3, 2020).

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 17 of 42

1 implementing social distancing strategies to increase the physical space between detained

2 persons, “ideally to maintain at least 6 feet between all individuals, even those who are

3 asymptomatic,” maintaining at least 6 feet between bunks, minimizing the number of

4 individuals housed in the same room, staggering meal times and rearranging seating to

5 increase space between individuals, providing meals inside housing units or cells, choosing

6 recreation spaces where individuals can spread out and staggering time in those spaces;

7 limiting the size of group activities and increasing space between individuals during group

8 activities. (Id. at 6, 16-17.) It further recommends that facilities should house quarantined

9 individuals who have had close contact with a COVID-19 case, or individuals in medical

10 isolation who are suspected or confirmed positive with COVID-19, in order of preference,

11 separately in single cells or as a cohort, although “[c]ohorting should only be practiced if

12 there are no other available options.” (Id. at 24- 15-20.)16 “If cohorting is unavoidable,

13 [facilities should] make all possible accommodations to reduce exposure risk for the

14 increased-risk individuals.” (Id. at 31.) The guidance cautions that facilities should ensure

15 that medical isolation for COVID-19 “is distinct from punitive solitary confinement of

16 incarcerated/detained individuals, both in name and in practice.” (Id. at 24.)

17

CDC Guidance also recommends that facilities implement intensified cleaning and

18 disinfecting procedures and provide education on, and reinforcement of, hygiene practices.

19 (CDC Guidance at 14-15.) Facilities should, among other things, provide adequate

20 supplies to support intensified cleaning and disinfection practices, clean and disinfect

21 surfaces that are frequently touched several times a day, and have a plan to rapidly restock

22 supplies. (Id. at 14.) Facilities should encourage all staff and incarcerated/detained persons

23 to wear a cloth face covering as much as possible, with education on their purpose and use,

24 continually restock hygiene supplies throughout the facility, provide detainees and staff

25 no-cost access to soap, running water, hand drying machines or disposable paper towels,

26 tissues, cloth face coverings, and alcohol-based hand sanitizer with at least 60% alcohol

27

28

16 “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.” (CDC Guidance at 4.)

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 18 of 42

1 where security restrictions allow. (Id. at 15.) The guidance underscores that because the

2 virus can be transmitted from contagious, yet asymptomatic individuals who are present

3 within the facilities, “[g]ood hygiene practices, vigilant symptoms screening, wearing cloth

4 face coverings (if able), and social distancing are critical in preventing further

5 transmission.” (Id. at 12.)

6

C. MCSO Facilities

7

There are five jails in the Maricopa County Jail System: Fourth Avenue, Estrella

8 (housing only female detainees/prisoners), Lower Buckeye, Towers, and 1280. (Doc. 28

9 at 6, citing Roska Decl. (Doc. 29 at 1-30) ¶ 6, 10, 16.)17 As of July 15, 2020, MCSO had

10 4,598 detainees/prisoners, which is 52.4% of the total design capacity of the Maricopa

11 County Jail system. (Id. at 9, citing Roska Decl. ¶ 8.) All but the Towers Jail have a

12 combination of dormitories and cells; the Towers Jail has only cells. (See id. at 6-9, citing

13 Roska Decl. ¶¶ 7, 10-12, 14-16.)

14

Due to the pandemic, the MCSO worked with the Maricopa County Attorney’s

15 Office to reduce the jail population and has reduced the average daily bookings from 250

16 daily bookings in January 2020 to 100 to 150 bookings per day as of July 16, 2020. (Id. at

17 9, citing Roska Decl. ¶ 9.) MCSO employs 1,744 Detention Officers, 214 Sergeants, 61

18 Lieutenants, and 14 Captains. (Roska Decl. ¶ 21.) As of July 15, 2020, 101 Detention

19 Officers had tested positive for COVID-19. (Id.)

20

D. MCSO’s Response to COVID-19 Pandemic

21

On June 30, 2020, Plaintiffs filed their motion for injunctive relief, which is

22 supported by Declarations from the named Plaintiffs and Plaintiffs’ expert, Dr. Robert

23 Cohen, M.D. (Doc. 8, Exs. 1-15), regarding alleged deficiencies in MCSO’s response to

24 the pandemic. Defendants responded with Declarations from B. Roska, G. Phillips, M.D.,

25 the Medical Director of the Maricopa County Correctional Health Services (CHS) (Doc.

26

27

28

17 B. Roska is currently Executive Chief of Custody of the MCSO. (Doc. 29 at 1

¶2.)

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 19 of 42

1 31 at 1-34), and B. Williams, Commander/Executive Lieutenant of ancillary and

2 institutional services (Doc. 30 at 1-14.)

3

1. MCSO and CHS Management Plan for COVID-19

4

At the start of the pandemic, MCSO stopped jail access for volunteer and

5 supplemental services, suspended in-person visitations, with the exception of attorney

6 visits, has followed court directives that allow detainees/prisoners to make court

7 appearances telephonically, and has contacted private suppliers to obtain additional PPE

8 and cleaning supplies. (Doc. 28 at 10, citing Roska Decl. ¶¶ 24, 26.) CHS also created a

9 Management Plan for COVID-19 in early March 2020, which is continuously revised to

10 reflect the CDC’s most updated guidelines, and Defendants assert that MCSO and CHS

11 operate in compliance with CDC’s Interim Guidance for correctional and detention

12 facilities. (Id. at 10-11, citing Roska Decl. ¶¶ 29, 85-87; Phillips Decl. ¶¶ 19-20, 179-187.)

13

In March 2020, MCSO developed and implemented a Supplemental Screening

14 Form for intake that allows CHS staff to immediately identify and isolate detainees with

15 symptoms or those considered at risk for COVID-19. (Id. at 13, citing Phillips Decl. ¶ 55.)

16 CHS screens all new intakes for symptoms of COVID-19 using a verbal screening process

17 and the Supplemental Screening Form, they screen all new intakes for other medical

18 conditions based on the patient’s self-report for problems such as hypertension, diabetes,

19 thyroid disease, cancer, lung problems, and heart disease, and they obtain the patient’s

20 temperature and vital signs, including blood pressure, pulse rate, respiratory rate, and

21 oxygenation level. (Id., citing Phillips Decl. ¶ 56.)

22

The Management Plan also has a verbal screening process to screen

23 detainees/prisoners for COVID-19 symptoms; those at risk of having COVID-19 are

24 identified as Persons Under Investigation (“PUI”). (Id. at 14, citing Phillips Decl. ¶¶ 57-

25 58.) A PUI is someone who exhibits symptoms such as fever at 100.4 or above, lower

26 respiratory illness such as cough or shortness of breath, or close contact with a laboratory-

27 confirmed COVID-19 individual within 14 days of onset. (Id.) Detainees/prisoners with

28 a chronic disease or other significant health conditions or disabilities “receive ongoing

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 20 of 42

1 multidisciplinary care aligned with management-based standards, including those

2 recommended by the CDC.” (Id., citing Phillips Decl. ¶¶ 59-64.) CHS staff are required

3 to wear surgical masks and gloves during intake screening, and wash their hands, sanitize

4 workstations, and change gloves between every encounter. (Id., citing Phillips Decl. ¶ 65.)

5

2. Intake Process and Cohorting

6

In March 2020, MCSO began cohorting new arrivals to protect against

7 asymptomatic carriers infecting the established population. (Id. at 14-15, citing Roska

8 Decl. ¶¶ 37-38; Phillips Decl. ¶¶ 103-104.) They remain in Cohort Housing for 14 days

9 from admission, unless they present with symptoms of possible COVID-19, in which case

10 isolation/testing protocols are employed. (Id. at 15, citing Phillips Decl. ¶¶ 104-106.)

11 MCSO staff are to report to CHS when they observe symptomatic detainees/prisoners. (Id.)

12

Plaintiffs assert that new intakes to the jails are only isolated and tested for COVID-

13 19 if they exhibit certain symptoms or report direct contact with someone who is COVID-

14 19 positive and that other newly booked individuals simply go through the booking

15 procedures and a court appearance while being held in holding tanks of 10 to 20 people

16 where there is no ability to socially distance and where masks are the exception. (Ex. 17

17 (Doc. 14 at 17, citing MCSO SOP J-02-023; Perez Dec. ¶¶ 30-31.) New intakes who are

18 not tested are not always placed in a 14-day cohort and some new intakes are placed directly

19 into the general population. (Id., citing Ex. 19 (letter from Penzone to Keenan); Dupont

20 Decl. ¶ 15; Ochoa Decl. ¶ 7; Scroggins Decl. ¶ 7; Avenenti Decl. ¶ 6.) Without universal

21 testing of all new intakes, the cohorting process is insufficient because individuals who are

22 asymptomatic or pre-symptomatic can unknowingly infect other people or staff. (Id., citing

23 Cohen Decl. ¶¶ 92-93.) And, some people already in jail are rebooked on new charges and

24 taken to the Fourth Avenue booking facility, where they spend around 24 hours in a holding

25 cell with new intakes, and then return back to their original dorm, which undermines any

26 benefit of the 14-day cohorting. (Id. at 17, citing Dupont Decl. ¶ 15; Ochoa Decl. ¶ 7;

27 Player Decl. ¶ 17.)

28

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 21 of 42

1

On July 27, 2020, Defendants submitted a Supplemental Declaration from Dr.

2 Phillips who states that beginning July 27, 2020, MCSO would begin mass testing of all

3 detainees/prisoners for COVID-19 over a five-week period. (Doc. 36-1 at 4 ¶¶ 23-25.)

4 After all five MCSO jails are tested, new arrivals, who will continue to be placed in Cohort

5 Housing and monitored for 14 days, will be tested twice for COVID-19 on days 5 and 14.

6 (Id. at 4 ¶ 26.) Dr. Cohen responds that waiting until all the other jails are tested “poses an

7 unreasonable danger of allowing for weeks of transmission of the virus inside the cohorted

8 pods and the introduction of COVID-19 to the general population if they are transferred

9 after cohorting to the general population without first being tested,” especially since there

10 have been 100-150 new bookings daily over the past few months. (Doc. 41-1 at 82 ¶ 24.)

11

3. Testing

12

Prior to MCSO’s announcement of mass COVID-19 testing, Plaintiffs state that

13 testing was not happening consistently, even for people housed in pods that were

14 quarantined due to direct contact with a person who tested positive for COVID-19 or

15 recreating with units in which someone tested positive. (Doc. 14 at 9, citing Boykins Decl.

16 ¶¶ 7-12; Player Decl. ¶ 4; Perez Decl. ¶ 9.) Also, when individuals have informed staff

17 they were suffering from symptoms of COVID-19, or that they were exposed to individuals

18 with COVID-19 or symptoms, they were not tested. (Id. at 10, citing Boykins Decl. ¶ 6;

19 Fenty Decl. ¶¶ 5-6; Ochoa Decl. ¶ 5; Perez Decl. ¶ 5, 9; Reason Decl. ¶¶ 5-6; Dupont Decl.

20 ¶ 4; Tequida Decl. ¶ 8; Scroggins Decl. ¶ 6; Stepter Decl. ¶ 7.)

21

Universal testing, particularly of all new intakes, is required to identify those who

22 are infected and to institute timely initial isolation, medical monitoring, and treatment for

23 those who test positive. (Id., citing Cohen Decl. (¶¶ 67, 72.) In his Supplemental

24 Declaration, Dr. Phillips asserts that the recently implemented widespread testing over a

25 five-week period would begin in week one with the Estrella Jail, move to the Towers Jail

26 in week two, the 1280 Jail in week three, the Fourth Avenue Jail in week four, and the

27 Lower Buckeye Jail in week five. (Phillips Suppl. Decl. (Doc. 36) ¶¶ 19, 23-25.) Dr.

28 Cohen responds that the decision to broaden testing is a positive step, but given the existing

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 22 of 42

1 outbreak, the five-week delay will allow the virus to spread rampantly in the remaining

2 facilities, and there is no explanation why the testing will take five weeks or any indication

3 that testing of the medically vulnerable detainees/prisoners will be prioritized. (Cohen

4 Suppl. Decl. (Doc. 41-1 at 82) ¶ 23.) In a third Declaration, Dr. Phillips states that CDC

5 Interim Consideration for SARS-CoV-2 Testing in Correctional and Detention Facilities

6 does not require mass testing for COVI-19 among incarcerated populations, but rather

7 recommends testing for individuals with signs of symptoms of COVID-19 or

8 asymptomatic individuals who have come into close contact with COVID-19 infection.

9 (Doc. 49 ¶ 13.) Therefore, the current mass testing by MCSO and CHS exceeds the CDC’s

10 recommendations. (Id.)

11

4. Isolation and Quarantine

12

If a detainee/prisoner screens as affirmative for possible COVID-19 infection, they

13 are immediately isolated in a private room, placed on “droplet precautions, contact

14 precautions, and standard precautions, only essential healthcare personnel may enter the

15 room to evaluate or care for the patients, and they must wear PPE, including a surgical

16 mask, gown, gloves, face shield and/or eye protection. (Doc. 28 at 15, citing Phillips Decl.

17 ¶¶ 70-71.) Those suspected of having COVID-19 are evaluated by a healthcare provider,

18 and if they have objective findings of cough, shortness of breath, or other signs of acute

19 illness, they are prioritized for COVID-19 testing, which is done using the nasopharyngeal

20 swab test, and results are usually received within two to five days. (Id., citing Phillips

21 Decl. ¶¶ 71, 74.) Other patients with symptoms of acute illness are considered for testing

22 based on guidelines from the CDC, and detainees/prisoners requesting COVID-19 testing

23 are assessed by a nurse and if symptoms warrant, a healthcare provider determines whether

24 COVID-19 testing is indicated. (Id., citing Phillips Decl. ¶¶ 72-73.) Patients designated

25 as PUI or who test positive for COVID-19 are transferred to Medical Observation Housing.

26 (Id., citing Phillips Decl. ¶ 75.) Medical co-pays are waived for COVID-19 testing so as

27 not to discourage detainees/prisoners from disclosing symptoms. (Id., citing Phillips Decl.

28 ¶ 82; Roska Decl. ¶ 32.)

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 23 of 42

1

Detainees/prisoners who display symptoms of COVID-19, meet PUI criteria, are

2 confirmed positive, were in close contact with an individual with COVID-19, or who

3 previously recovered from and present with symptoms of COVID-19 are housed in medical

4 isolation in a designated Medical Observation Unit (“MOU”). (Id. at 15-16, citing Roska

5 Decl. ¶¶ 32, 36; Phillips Decl. ¶ 76.) MOUs are cell design, not dormitory style, and a

6 detainee/prisoner who meets PUI criteria, is housed alone so as not to expose others, and

7 those who test positive may be housed in the same cell. (Id. at 16, citing Phillips Decl. ¶¶

8 77-78.) Those who have tested positive are housed in the MOU until 10 days have elapsed

9 since the positive test and at least 72 hours have passed since the resolution of fever and

10 improvement of respiratory symptoms. (Id., citing Phillips Decl. ¶ 84.)

11 Detainees/prisoners in MOUs are on restricted movement status, which means they must

12 stay within their housing unit, except in case of a medical emergency or release from

13 custody, and they are not permitted to go to court. (Id, citing Phillips Decl. ¶ 92.)

14

CHS staff assess MOU patients daily, including temperature checks, and if a MOU

15 patient is at higher risk for COVID-19 complications, they can be housed in the Infirmary,

16 where they receive 24-hour nursing care and frequent assessments. (Id., citing Phillips

17 Decl. ¶¶ 82, 85-86; Roska Decl. ¶ 34.) A patient is deemed “higher risk” if they are over

18 60 years-old, have diabetes, heart or lung problems, or other conditions “that can lead to

19 immunocompromise.” (Id. at 16-17, citing Roska Decl. ¶ 34; Phillips Decl. ¶ 85.) Those

20 who test negative for COVID-19 may be released from MOU to general population if at

21 least 72 hours have passed since the resolution of fever and improvement of respiratory

22 symptoms. (Id. at 17, citing Phillips Decl. ¶¶ 98-99.) Medical Observation cells and

23 common areas in a Cohort are fully sanitized between occupants. (Id. at 18, citing Phillips

24 Decl. ¶ 51.)

25

When a detainee/prisoner tests positive for COVID-19, their housing unit is placed

26 on 14-day quarantine status, and beginning June 1, 2020, mass COVID-19 testing of

27 detainees/prisoners in quarantine status began. (Id. at 17, citing Roska Decl. ¶ 39; Phillips

28 Decl. ¶¶ 111-113.) Quarantine status detainees/prisoners are also offered COVID-19

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 24 of 42

1 testing on the next business day after someone in their unit tests positive and on or after

2 day 14 of the quarantine. (Id.) Those in quarantine are on movement restriction, which

3 prohibits their movement outside of the housing unit, including for court dates, except in

4 case of emergency or release from custody. (Id., citing Phillips Decl. ¶ 119.)

5

Despite these measures, Defendants have not taken other protective measures to

6 ensure infected people are not infecting others in quarantine, which is necessary because

7 COVID-19 testing has a false negative rate as high as 29%. (Doc. 14 at 15, citing Cohen

8 Decl. ¶ 77.) Medical staff generally do not visit quarantined pods to check for symptoms

9 of COVID-19 in order to remove symptomatic people from the pod and, when they do

10 visit, they are not taking basic precautions such as changing gloves between each person

11 they examine and sterilizing oral thermometers between uses. (Id., citing Boykins Decl.

12 ¶¶ 8-9; Player Decl. ¶ 5.) Dr. Phillips disputes these assertions, stating that CHS staff do

13 sanitize medical equipment and change their gloves in between seeing patients, but that

14 there is no need to change gloves when distributing medications to patients because they

15 do not directly touch the medications. (Doc. 49 ¶ 24.) Plaintiffs also contend there is

16 inadequate social distancing in quarantined units, no specific cleaning procedures or PPE

17 for quarantined units, and no steps are taken to ensure cells and bed spaces are cleaned

18 after a confirmed or suspected COVID-19 person is removed from the unit. (Doc. 14 at

19 15, citing Boykins Decl. ¶¶ 7-8, 19-24, 28; Player Decl. ¶¶ 7, 12-13, 16.)

20

Because those removed from housing units due to confirmed or suspected COVID-

21 19 are sent to punitive conditions akin to disciplinary segregation (known as “the hole”)

22 without proper medical care, detainees/prisoners are deterred from reporting symptoms,

23 which means symptomatic people will potentially remain in general population units. (Id.,

24 citing Boykins Decl. ¶ 5; Lewis Decl. ¶ 4; Suggs Decl. ¶¶ 6-9; Cohen Decl. ¶ 116.) The

25 only difference between the punitive isolation units where people testing positive are sent

26 and punitive segregation units is that COVID-19 positive people are placed in cells

27 together. (Id., citing Lewis Decl. ¶ 19.) Those who have tested positive are sent to isolation

28 units and left in filthy cells 24 hours a day except for shower time (once every three days

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 25 of 42

1 for one person and once a week for another) and video visits, all their property is taken,

2 they are denied access to commissary, and they are left to wear the same clothes, despite

3 being sick with the virus. (Id. at 16, citing Lewis Decl. ¶ 19; Avenenti Decl. ¶ 14.)

4 Williams disputes these assertions, stating that undergarments are normally exchanged at

5 least twice a week but, to limit movement, two items are delivered at the same time each

6 week; he also states that there was a problem at the Lower Buckeye Jail between July 1-15

7 when patients in the MOU were unable to use the commissary, but that issue has been

8 resolved. (Doc. 50 ¶¶ 6, 12.) Dr. Phillips disputes that medical isolation housing units are

9 punitive in nature and asserts that medical isolation is widely used in the medical

10 community to reduce the risk of transmissions of COVID-19, and that detainees/prisoners

11 in medical isolation have their tablets for entertainment and reading materials and they

12 have access to commissary purchases. (Doc. 49 ¶ 19.)

13

Dr. Cohen asserts that patients with known or suspected COVID-19 require close

14 clinical monitoring of their condition twice daily to assess whether they are clinically

15 deteriorating and need more assertive treatment. (Doc. 14 at 16, citing Cohen Decl. ¶¶ 16,

16 111.) According to Plaintiffs, those who test positive for COVID-19 receive inadequate

17 medical care, and staff, who are not necessarily medically trained, only visit once a day for

18 a symptoms and temperature check, but do not normally check oxygen intake, and it can

19 take up to three and a half days to get basic medicine such as Tylenol. (Id., citing Cohen

20 Decl. ¶ 113; Avenenti Decl. ¶¶ 8-13; Lewis Decl. ¶¶ 19, 20, 22.) Dr. Phillips disputes that

21 those who test positive receive inadequate medical care, asserting that pulse oximetry is

22 only necessary where the patient exhibits symptoms such as difficulty breathing and

23 shortness of breath, in which case, CHS staff will check a full set of vital signs, including

24 pulse oximetry. (Doc. 49 ¶ 21.) Dr. Phillips states that Plaintiff Avenenti did test positive

25 for COVID-19 and was moved to medical observation on June 7, 2020, where he was seen

26 daily by CHS staff, received regular temperature checks, which ranged from 97.6 to 98.2

27 degrees, his blood pressure was taken four times and was normal each time, and he has

28 recovered from COVID-19 and was moved back to general population on June 17, 2020.

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 26 of 42

1 (Id. ¶ 22.) Plaintiff Crough is housed in the Infirmary and his four blood pressure checks

2 in mid-July were all normal except one, when it was slightly low, and his oxygen levels

3 were in the normal range. (Id. ¶ 23). Plaintiff Ochoa, who tested positive for COVID-19,

4 had normal temperatures when checked 8 times between July 10 and July 17, 220, and she

5 was discharged from medical observation on July 17, 2020 after being symptom-free for

6 72 hours. (Id. ¶ 28.)

7

Plaintiffs contend that the medically vulnerable are also not receiving sufficient

8 medical monitoring, even though they face higher hospitalization and death rates. (Doc.

9 14 at 16-17, citing Cohen Decl. ¶ 88; Lewis Decl. ¶ 20.) Defendants have failed to waive

10 fees when detainees/prisoners seek care or diagnosis for COVID-19 symptoms, which also

11 deters people from reporting symptoms and for the jails to identify people infected with

12 COVID-19. (Id. at 17, n.23, citing Suggs Decl. ¶ 10; Fenty Decl ¶ 5; Reason Decl. ¶ 5.)

13 Dr. Phillips asserts that Plaintiff Fenty was erroneously charged on June 25 and June 26,

14 2020 for medical care and that those charges have now been reversed and that Plaintiff

15 Ochoa may have also been erroneously charged and those charges may be reversed once

16 verified. (Doc. 49 ¶¶ 26, 28.)

17

Plaintiffs also dispute that the medical observation cells receive full sanitation

18 between occupants, with some Plaintiffs observing that the floors of those cells were

19 covered in dust and trash upon their arrival, including orange peels, milk cartons, and other

20 trash, and that some Plaintiffs were given no means of cleaning the cell. (Doc. 40 at 19,

21 citing Fenty Suppl. Decl. ¶ 6; Suggs Decl. ¶ 7; Avenenti Decl. ¶ 8; Lewis Decl. ¶ 19.) Dr.

22 Phillips states in a supplemental Declaration that the allegation that the medical tank is not

23 sanitized between uses is false. (Doc. 49 ¶ 30.)

24

5. Social Distancing

25

Despite the reduction in the jail population since the start of the pandemic, Plaintiffs

26 contend that there is no policy for social distancing and that social distancing “has not been

27 noticeably implemented,” with some individuals sleeping in units that are nearly full, and

28 in cells with two or three people and in dorms with dozens of other people on beds that are

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 27 of 42

1 inches apart. (Doc. 14 at 11-12, citing Boykins Decl. ¶¶ 14-16; Crough Decl. ¶¶ 13-14;

2 Fenty Decl. ¶¶ 8; Ochoa Decl. ¶¶ 7-8; Scroggins Decl. ¶¶ 7-8; Stepter Decl. ¶ 8; Suggs

3 Decl. ¶ 12; Tequida Decl. ¶ 11.) Some units are increasingly on lockdown, which means

4 individuals are confined to their sleeping areas without social distancing, common areas

5 such as dining rooms and recreation spaces are not operated with social distancing, and

6 mealtimes are not staggered, so individuals are frequently standing close together in lines

7 and sitting elbow-to-elbow. (Id., citing Boykins Decl. ¶¶ 15-18, Player Decl. ¶¶ 8-9; Lewis

8 Decl. ¶¶ 6, 8-9; Dupont Decl. ¶¶ 6-7; Fenty Decl. ¶¶ 9-11; Ochoa Decl. ¶¶ 9-12; Perez

9 Decl. ¶¶ 11,16-18, 20; Reason Decl. ¶¶ 7-10; Scroggins Decl. ¶¶ 8-10; Tequida Decl. ¶¶

10 13-15; Suggs Decl. ¶¶ 11-15.)

11

Defendants have food delivered by incarcerated persons who travel pod to pod,

12 thereby increasing the risk of spreading the virus, and sometimes multiple people may

13 touch the same food as it is transferred. (Id. at 12, citing Boykins Decl. ¶ 17; Player Decl.

14 ¶ 8; Ochoa Decl. ¶ 9; Perez Decl. ¶ 17; Scroggins Decl. ¶ 9; Tequida Decl. ¶ 14.) During

15 recreation, multiple units sometimes use the same facility at the same time, and when

16 receiving medications, detainees/prisoners must line up side by side. (Id., citing Boykins

17 Decl. ¶ 18; Player Decl. ¶¶ 5, 8; Dupont Decl. ¶ 6; Lewis Decl. ¶ 8; Fenty Decl. ¶ 10; Perez

18 Decl. ¶ 19; Scroggins Decl. ¶ 9; Stepter Decl. ¶¶ 10, 12; Avenenti Decl. ¶ 20.)

19

Defendants respond that detainees/prisoners are encouraged to practice social

20 distancing and are educated on the importance of trying to maintain at least a six-foot

21 distance from others, if possible, and MCSO has taken measures to reduce its population

22 to allow detainees/prisoners to socially distance. (Doc. 28 at 20, citing Roska Decl. ¶ 76.)

23 The day room areas in all the jails are large and allow ample space to socially distance and

24 no one is forced to remain within six feet of another person, even when lining up for meals,

25 medication, to use a telephone or watch television. (Id., citing Roska Decl. ¶ 79.)

26 Detainees/prisoners are often voluntarily less than six-feet apart and are reminded that they

27 should not do so by detention officers. (Id.) Detainees/prisoners are not triple celled and

28 although some cells have bunks stacked three high, these cells are only occupied by one or

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1 two detainees/prisoners. (Id., citing Roska Decl. ¶ 80.) According to Defendants, “[t]he

2 solid metal beds provide an adequate barrier to allow inmates to sleep in the bunks without

3 the risk of infecting one another, in the event one of the inmates has the virus.” (Id.)

4

COVID-19 education is provided to detainees/prisoners in English and Spanish via

5 the inmate tablet system, which those in the general population have access to, and they

6 receive one-on-one counseling during medical and mental-health checks, which can

7 include education on social distancing, proper hygiene, and mask use. (Id. at 11, citing

8 Phillips Decl. ¶¶ 28-30.) Education materials are also posted throughout the facility and in

9 all housing units regarding COVID-19 symptoms, what to do if you become sick, hand

10 washing, sanitation and cleanliness, mask use, and steps to reduce exposure. (Id., citing

11 Roska Decl. ¶ 75.)

12

Plaintiffs reply that as to COVID-19 education, detainees/prisoners have only

13 recently been given access to materials that provide information about COVID-19

14 symptoms and precautions via the inmate tablet system, but that information does not

15 mention social distancing, and the tablet system is inadequate for people who are illiterate

16 or not adept at technology. (Doc. 40 at 10, citing Doc. 29-1 at 40.) Plaintiffs assert in their

17 original and supplemental Declarations that, contrary to Defendants’ assertions, they are

18 not given frequent verbal communications from detention officers or during medical visits

19 about the need to wear masks and remain socially distant. (Perez Suppl. Decl. ¶ 12;

20 Tequida Suppl. Decl. ¶ 13; Ochoa Suppl. Decl. ¶¶ 2-3; Fenty Suppl. Decl. ¶¶ 20-21; Stepter

21 Suppl. Decl. ¶¶ 13-14; Avenenti Suppl. Decl. ¶ 10; Boykins Decl. ¶ 27; Player Decl. ¶ 14;

22 Avenenti Decl. ¶ 4; Fenty Decl. ¶ 20; Crough Decl. ¶ 25; Ochoa Decl. ¶ 18; Perez Decl. ¶¶

23 14, 27; Scroggins Decl. ¶ 19; Stepter Decl. ¶ 18; Tequida Decl. ¶ 24.)

24

Plaintiffs also dispute that they are able to socially distance either in their cells or

25 dorms or in the common areas, stating, for example, that the day rooms have tables and

26 chairs that are bolted to the ground and allow only about a foot between seats, that the

27 bunks are bolted down and close to each other or touching, making it impossible to sleep

28 six feet apart, that detainees/prisoners wait in line for food right next to each other and

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1 because the tables and chairs are bolted down, they are close together when eating, and

2 detention officers do not instruct prisoners to stay six feet apart. (Doc. 14 at 11-12 and

3 Doc. 40 at 12-13, 17-18, citing Boykins Decl. ¶¶ 14-15; Dupont Decl. ¶ 5; Ochoa Decl. ¶

4 8; Lewis Decl. ¶ 8; Fenty Suppl. Decl. ¶ 11; Stepter Suppl. Decl. ¶¶ 7-8; Avenenti Suppl.

5 Decl. ¶ 4.) Plaintiffs contend that “[t]he fact that the bunk beds are made of metal does

6 nothing to mitigate the fact that cellmates are in constant close proximity with each other,

7 touch the same common surfaces as each other, and breath the same air in the exceptionally

8 limited common areas of each cell, including while sleeping.” (Doc. 40 at 13, citing Cohen

9 Suppl. Decl. ¶ 40.)

10

6. Sanitation Procedures

11

The Maricopa County jails rely on incarcerated persons to clean facilities and the

12 post-COVID-19 cleaning routine is nearly identical to the pre-COVID-19 cleaning routine

13 and, in general, jail staff do not ensure that cleaning is done at all, much less safely and

14 adequately to kill the virus. (Doc. 14 at 13, citing Boykins Decl. ¶¶ 20-21; Player Decl. ¶

15 11; Avenenti Decl. ¶ 18; Lewis Decl. ¶ 11; Dupont Decl. ¶ 8; Fenty Decl. ¶ 13; Perez Decl.

16 ¶¶ 22-23; Reason Decl. ¶ 7; Scroggins Decl. ¶ 15; Stepter Decl. ¶ 15; Tequida Decl. ¶ 17;

17 Suggs Decl. ¶ 17; Ochoa Decl. ¶¶ 11-13.) Twice a day, Defendants provide entire housing

18 units with one bottle of watered-down disinfectant and glass cleaner and possibly another

19 substance to clean the common surfaces and individual cells, but the supplies often run out

20 and staff often refuse to provide additional supplies. (Id., citing Boykins Decl. ¶ 21; Player

21 Decl. ¶¶ 9, 11; Lewis Decl. ¶ 11; Fenty Decl. ¶ 13; Perez Decl. ¶ 22; Scroggins Decl. ¶¶

22 14-15; Stepter Decl. ¶ 15; Tequida Decl. ¶ 18; Suggs Decl. ¶ 18; Avenenti Decl. ¶ 18;

23 Dupont Decl. ¶ 8; Perez Decl. ¶ 22.) Williams disputes that the cleaning supplies provided

24 to detainees/prisoners are inadequate, and asserts that MCSO keeps inventory of cleaning

25 solutions in concentrated form, which is mixed with water according to the manufacturer’s

26 instructions. (Doc. 50 ¶ 17.)

27

Defendants do not usually provide detainees/prisoners with gloves or sufficient

28 protective equipment for cleaning, even when tasked with cleaning cells where infected

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1 persons or persons quarantined at intake were located. (Doc. 14 at 13, citing Fenty Decl.

2 ¶ 13; Stepter Decl. ¶ 16; Boykins Decl. ¶¶ 7-8; Player Decl. ¶ 4; Avenenti Decl. ¶ 5; Lewis

3 Decl. ¶ 10; Reason Decl. ¶ 13.) Detainees/prisoners share numerous high-touch surfaces

4 such as telephones, tablets, tables, chairs, and railings, and Defendants have not

5 implemented any system to ensure they are property cleaned; some people wrap socks or

6 a towel around phones to protect themselves from COVID-19. (Id., citing Crough Decl. ¶

7 16; Fenty Decl. ¶¶ 11, 13; Ochoa Decl. ¶¶ 10, 12; Perez Decl. ¶¶ 17-19; Stepter Decl. ¶¶

8 11, 15; Boykins Decl. ¶ 25; Suggs Decl. ¶ 22.) Dr. Phillips asserts in a supplemental

9 Declaration that the CDC’s Interim Guidance does not require that detainees/prisoners

10 receive gloves and that there is hot water and soap available for washing hands at any time,

11 which is the most effective means to kill COVID-19. (Doc. 49 ¶ 25.)

12

Defendants assert that MCSO has implemented enhanced sanitation procedures,

13 using OSHA-approved Waxie 764 Lemon Quat Disinfectant Cleaner and Triad-III

14 Disinfectant, which are effective at disinfecting hard surfaces and destroying such viruses

15 as MRSA, HBV, HIV, and Hepatitis B & C, as well as the SARS-COV-2 family of viruses.

16 (Doc. 28 at 17-18, citing Roska Decl. ¶¶ 42, 44-45.) In a March 26, 2020 Briefing Notes

17 Report on the enhanced sanitation procedures, MCSO staff were directed to implement

18 extra cleaning of vehicles, work areas, high-touch areas in the offices, briefing rooms, and

19 break rooms, and to use Triad-III cleaner for surfaces. (Id. at 18, citing Roska Decl. ¶¶ 46-

20 49; Phillips Decl. ¶¶ 48-51.) Vehicles used to transport detainees/prisoners are to be

21 cleaned with Triad cleaner between runs, and MCSO has dedicated certain vehicles to

22 transport those who have tested positive for COVID-19 to eliminate the possibility of

23 infection when transporting detainees/prisoners who are not positive. (Id., citing Roska

24 Decl. ¶ 56.)

25

MCSO internal housekeeping staff have increased sanitization protocols since the

26 end of March 2020, concentrating on sanitizing high touch surfaces such as door handles,

27 knobs, handrails, intercoms, push buttons, tables, and showers. (Id., citing Roska Decl.

28 ¶ 50.) MCSO has purchased Ryobi sprayers and pump sprayers for use with Triad III

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1 cleaner to sanitize mattresses, holding cells, and living spaces. (Id., citing Roska Decl. ¶

2 51.) All housing units have their own cleaning supplies “for easy access by staff and

3 detainees/prisoners to clean common areas and cells.” (Id.)

4

CHS staff are to disinfect surfaces when indicated in patient care areas and in

5 between patient contacts. (Id.) CHS has also developed a standard operating procedure

6 for Cleaning/Disinfection of Unit Surfaces and Non-Disposable Instrument Equipment,

7 which is designed to minimize incidents of communicable disease transmission among

8 patients and staff. (Id., citing Phillips Decl. ¶ 51.)

9

Plaintiffs reply that there is a marked difference in sanitation practices for staff and

10 those incarcerated, noting that the only parts of the jails subject to janitorial cleaning are

11 places exclusive to staff use and that janitorial staff are required to wear masks and gloves,

12 that cleaning schedules only pertain to staff areas and vehicles, not areas used by the

13 incarcerated, and that the incarcerated “are left to fend for themselves and are required to

14 clean common areas—even areas recently vacated by people suspected or known to have

15 had COVID-19—with limited disinfectant, no gloves, and without other basic cleaning

16 supplies.” (Doc. 40 at 9-10, citing Perez Suppl. Decl. ¶ 11; Tequida Supp. Decl. ¶ 11;

17 Ochoa Suppl. Decl. ¶ 8; Fenty Suppl. Decl. ¶¶ 5, 15, 16; Stepter Suppl. Decl. ¶ 8; Avenenti

18 Suppl. Decl. ¶ 10; Suggs Suppl. Decl. ¶ 3.) Williams responds that cleaning supplies are

19 for the use of both staff and detainees/prisoners at each facility. (Doc. 50 ¶ 16.)

20

7. Personal Hygiene and Masks

21

Defendants do not generally provide individuals with personal hygiene products

22 such as paper towels or hand sanitizer, and detainees/prisoners are forced to use the bathing

23 towel they are given once a week to wipe down surfaces and dry their hands. (Doc. 14 at

24 14, citing Boykins Decl. ¶ 23; Ochoa Decl. ¶¶ 12-15; Player Decl. ¶ 11; Lewis Decl. ¶¶ 11-

25 12; Perez Decl. ¶¶ 23-24; Scroggins Decl. ¶ 15; Tequida Decl. ¶¶ 18-20; Suggs Decl. ¶ 20.)

26 Williams responds that towels are normally exchanged at least three times a week, but to

27 limit movement at the facilities, three clean towels are delivered at once each week. (Doc.

28 50 ¶ 6.) Williams also asserts that cleaning rags are always available for

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1 detainees/prisoners in the facility’s cleaning supplies, and that a cleaning towel for personal

2 use is exchanged once a week, and that an individual may request to exchange a towel in

3 between deliveries. (Id.) No incarcerated person is required to wear a mask, but those who

4 do want masks generally only receive one or two disposable paper masks over a period of

5 months, even if housed in a unit that has been quarantined due to exposure to COVID-19

6 and even if the mask is lost, soiled or broken. (Doc. 14 at 14, citing Boykins Decl. ¶ 24;

7 Player Decl. ¶ 12; Avenenti Decl. ¶ 19; Lewis Decl. ¶ 13; Fenty Decl. ¶ 14; Ochoa Decl. ¶

8 16; Perez Decl. ¶ 25; Scroggins Decl. ¶ 17; Stepter Decl. ¶ 16; Tequida Decl. ¶ 22; Suggs

9 Decl. ¶ 21.)

10

According to Defendants, detainees/prisoners have access to soap and personal

11 hygiene products for personal use to mitigate the spread of COVID-19 and other infectious

12 diseases. (Doc. 28 at 18, citing Phillips Decl. ¶ 53.) MCSO does not provide alcohol-

13 based hand sanitizer for the incarcerated because it can be used as an accelerant or to make

14 alcohol-based liquids for consumption, which could lead to intoxication and possibly

15 serious injury to staff or detainees/prisoners. (Id. at 19, citing Roska Decl. ¶ 54.)

16

Beginning in late March, all detainees/prisoners were issued surgical masks without

17 cost, they are advised on the most effective ways to ensure the mask stays clean, and if a

18 mask is lost or damaged, the detainee/prisoner “simply need[s] to ask, and they will receive

19 one.” (Id. at 19, citing Roska Decl. ¶¶ 58, 60, 69.) Detainees/prisoners at the Fourth

20 Avenue Jail receive a new surgical mask every Saturday morning. (Id. at 20, citing Roska

21 Decl. ¶ 59.) Detainees/prisoners receive instructions in English and Spanish to wear their

22 masks whenever possible and to always wear them to court, medical or anytime they are

23 outside the housing unit. (Id., citing Roska Decl. ¶ 60.) Detainees/prisoners who work in

24 food preparation are provided gloves and masks. (Id., citing Roska Decl. ¶ 62.)

25

Plaintiffs dispute that they can simply ask for a new mask when needed and assert

26 that requests for new masks are typically rejected. (Doc. 40 at 16-17, citing Boykins Decl.

27 ¶ 24; Crough Decl. ¶¶ 20-21; Fenty Suppl. Decl. ¶ 13; Crough Suppl. Decl. ¶ 7.)

28 . . . .

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1

8. Staff Instructions

2

Staff who work at the jails travel to and from their homes and communities for work

3 and are at risk of contracting the virus and transmitting it to those incarcerated or others

4 who work in the jails, but there is no policy to test all staff or check for symptoms when

5 staff enter the facility. (Doc. 14 at 19, citing Cohen Decl. ¶ 73.) Staff are merely instructed

6 to stay home if sick with fever, cough, or difficulty breathing and to contact their healthcare

7 provider. (Id., citing MCSO Press Release dated June 15, 2020, COVID-19 FAQ.)

8 Asymptomatic carriers who are not identified can spread the virus, especially since staff

9 do not consistently wear masks or wear their masks below the chin, which defeats the

10 purpose of the masks, and staff do not change gloves between inspecting

11 detainees/prisoners. (Id., citing Boykins Dec. ¶ 26; Player Decl. ¶ 13; Avenenti Decl. ¶ 20;

12 Lewis Decl. ¶ 14; Dupont Decl. ¶ 11; Ochoa Decl. ¶ 17; Perez Decl. ¶ 26; Scroggins Decl.

13 ¶¶ 11, 18; Suggs Dec. ¶ 23; Fenty ¶ 10; Reason ¶ 16; Tequida ¶ 23.)

14

Defendants assert that beginning in March 2020, MCSO began educating staff about

15 COVID-19—issuing two detailed memos on March 18 and March 26—and informing staff

16 how the virus is spread, common symptoms, how to protect oneself from exposure,

17 appropriate PPE to use when around individuals with suspected or confirmed COVID-19,

18 how to respond to detainees/prisoners with symptoms, disinfection and transportation

19 protocols, and PPE requirements. (Doc. 28 at 11, citing Roska Decl. ¶¶ 67, 69.) When

20 staff arrive at their assigned facility, they are screened with a series of questions or a health

21 situation report which they must respond to when logging onto a computer at the beginning

22 of the shift. (Id. at 12, citing Roska Decl. ¶ 72.)

23

All CHS staff must sign an Attestation declaring that if they are sick or have

24 symptoms such as difficulty breathing, cough, or fever over 100.4 degrees, they will

25 immediately notify their direct supervisor and staff, self-quarantine, and seek medical

26 attention. (Id., citing Phillips Decl. ¶ 30.) CHS staff who test positive for COVID-19 must

27 self-quarantine for 10 days and be symptom free for 72 hours before they can return to

28 work. (Id., citing Phillips Decl. ¶ 32.) CHS Infection Control notifies employees if they

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1 potentially came into contact with someone who tested positive. (Id., citing Phillips Decl.

2 ¶¶ 33-34.) As of May 2020, all CHS staff are required to wear masks while on duty,

3 appropriate PPE when required, and practice proper hygiene, and they receive email

4 communications several times a week with daily updates on COVID-19 statistics within

5 the jail population, possible exposures, COVID-19 precautions, and mask use. (Id., citing

6 Phillips Decl. ¶¶ 36-37, 42-44.)

7

Detention officers have been issued N95 masks, along with a washable mask filter,

8 and, as of June 29, 2020, they are instructed to wear the mask at all times while inside the

9 common areas of jail or any place that interaction with detainees/prisoners may take place

10 and while transporting detainees/prisoners. (Id., citing Roska Decl. ¶¶ 33, 64-65.) All shift

11 briefings that were conducted in-person prior to March 2020 have been changed to an email

12 or telephone briefing when necessary. (Id., citing Roska Decl. ¶ 73.) During transport,

13 MCSO staff are required to wear a mask, gown, gloves, and face shield, and if a

14 detainee/prisoner awaiting transport complains of fever, cough, shortness of breath or other

15 symptoms of acute illness, MCSO staff are to contact the CHS facility nurse manager, who

16 may contact an on-duty CHS healthcare provider, if needed. (Id., citing Phillips Decl.

17 ¶¶ 67-68.) If there is a high suspicion of a possible COVID-19 infection, CHS staff advise

18 MCSO staff to provide the detainee/prisoner with a surgical mask during transport. (Id.,

19 citing Phillips Decl. ¶ 68.) Upon arrival, CHS staff are notified and instruct MCSO

20 personnel on where the detainee/prisoner’s evaluation will take place. (Id.)

21

Plaintiffs reply that there is a significant gap between the policies designed to protect

22 staff versus those designed to protect the incarcerated, such as the N95 masks with machine

23 washable inserts that staff receive and are required to wear in jail common areas whereas

24 incarcerated people are not required to wear any masks, much less N95 masks, even in

25 common areas, and are only instructed to wear thin, surgical paper masks in limited

26 situations like attending court, receiving medical care, or leaving their housing unit. (Doc.

27 40 at 2.) Moreover, the masks given to incarcerated people are intended only for a single

28 use and should be replaced daily to be effective. (Id. at 8, citing Cohen Decl. ¶¶ 119-120;

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1 Cohen Suppl. Decl. ¶ 51.) Even an internal MCSO memo to staff states that “[d]isposable

2 face masks can only be used once.” (Id. at 8-9, citing Doc. 28 at 17; Doc. 29-1 at 18.) And

3 Defendants’ evidence shows that only detainees/prisoners at the Fourth Avenue Jail are

4 given new masks each week. (Id. at 8.) Plaintiffs assert that medical staff and detention

5 officers still routinely fail to wear masks or wear them improperly. (Id. at 15-16, citing

6 Fenty Suppl. Decl. ¶ 13; Perez Suppl. Decl. ¶ 6; Suggs Suppl. Decl. ¶ 5; Avenenti Suppl.

7 Decl. ¶ 7.)

8

E. Injunctive Relief Standard

9

“A preliminary injunction is ‘an extraordinary and drastic remedy, one that should

10 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’”

11 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520

12 U.S. 968, 972 (1997) (per curiam)); see also Winter v. Natural Res. Def. Council, Inc., 555

13 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy

14 never awarded as of right”). A plaintiff seeking a preliminary injunction must show that

15 (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm without

16 an injunction, (3) the balance of equities tips in his favor, and (4) an injunction is in the

17 public interest. Winter, 555 U.S. at 20. “But if a plaintiff can only show that there are

18 ‘serious questions going to the merits’—a lesser showing than likelihood of success on the

19 merits—then a preliminary injunction may still issue if the ‘balance of hardships tips

20 sharply in the plaintiff’s favor,’ and the other two Winter factors are satisfied.” Shell

21 Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance

22 for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under this serious

23 questions variant of the Winter test, “[t]he elements . . . must be balanced, so that a stronger

24 showing of one element may offset a weaker showing of another.” Lopez, 680 F.3d at

25 1072.

26

Regardless of which standard applies, the movant “has the burden of proof on each

27 element of the test.” See Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016,

28 1027 (E.D. Cal. 2000). Further, there is a heightened burden where a plaintiff seeks a

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1 mandatory preliminary injunction, which should not be granted “unless the facts and law

2 clearly favor the plaintiff.” Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1441 (9th

3 Cir. 1986) (citation omitted).

4

The Prison Litigation Reform Act imposes additional requirements on prisoner

5 litigants who seek preliminary injunctive relief against prison officials and requires that

6 any injunctive relief be narrowly drawn and the least intrusive means necessary to correct

7 the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 987,

8 999 (9th Cir. 2000).

9

F. Discussion

10

Plaintiffs assert claims challenging their conditions of confinement under the Eighth

11 and Fourteenth Amendments. To succeed under either amendment, Plaintiffs must

12 establish “deliberate indifference” on the part of Defendants. Farmer v. Brennan, 511 U.S.

13 825, 846, (1994) (Eighth Amendment); Kingsley v. Hendrickson, 576 U.S. 389, 135 S.Ct.

14 2466, 2473–74 (2015) (Fourteenth Amendment). “Deliberate indifference is the conscious

15 or reckless disregard of the consequences of one’s acts or omissions. It entails something

16 more than negligence but is satisfied by something less than acts or omission for the very

17 purpose of causing harm or with knowledge that harm will result.” Gantt v. City of Los

18 Angeles, 717 F.3d 702, 708 (9th Cir. 2013).

19

To succeed on their Eighth Amendment claim, Plaintiffs need to prove both

20 objective and subjective deliberate indifference. Farmer, 511 U.S. at 842. Their

21 Fourteenth Amendment claim, however, requires only that they prove objective deliberate

22 indifference. Gordon v. Cty. of Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018)

23

1. Objective Deliberate Indifference

24

To satisfy the objective prong, Plaintiffs must show an “objectively intolerable risk

25 of harm.” Farmer, 511 U.S. at 842. The Ninth Circuit has established a four-part test to

26 determine objective deliberate indifference:

27

(i) the defendant made an intentional decision with respect to

28

the conditions under which the plaintiff was confined; (ii) those

conditions put the plaintiff at substantial risk of suffering

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1

serious harm; (iii) the defendant did not take reasonable

available measures to abate that risk, even though a reasonable

2

official in the circumstances would have appreciated the high

3

degree of risk involved—making the consequences of the defendant’s conduct obvious; and (iv) by not taking such

4

measures, the defendant caused the plaintiff’s injuries.

5 Gordon, 888 F.3d at 1125. “With respect to the third element, the defendant’s conduct

6 must be objectively unreasonable, a test that will necessarily ‘turn[ ] on the facts and

7 circumstances of each particular case.’” Id. (quoting Kingsley, 135 S.Ct. at 2473; Graham

8 v. Connor, 490 U.S. 386, 396 (1989)). The “‘mere lack of due care by a state official’ does

9 not deprive an individual of life, liberty, or property under the Fourteenth Amendment.”

10 Id. (quoting Daniels v. Williams, 474 U.S. 327, 330–31 (1986). Therefore, a plaintiff must

11 “prove more than negligence but less than subjective intent—something akin to reckless

12 disregard.” Id.

13

The available evidence shows that the conditions in the jails present a risk of serious

14 harm. At the time Plaintiffs filed their motion on June 30, 2020, there were 565 positive

15 COVID-19 cases in the MCSO jails, but as of August 6, 2020, that number had risen to

16 1,420 positive cases. It is also undisputed that certain Plaintiffs have underlying mental

17 and physical conditions and age that put them at higher risk of contracting COVID-19 and

18 at increased risk of severe illness or death if they become infected. The parties dispute,

19 however, whether Defendants have taken reasonable measures to abate that risk.

20

There is no dispute that Defendants have taken certain measures to abate the risk,

21 which now includes universal testing, limiting access to the jails, reducing the jail

22 population, instituting enhanced sanitation protocols, particularly in areas accessible only

23 to staff, issuing masks to detainees/prisoners, and providing education on COVID-19.

24 Plaintiffs dispute that those measures are uniformly followed or sufficient or comply with

25 CDC standards. However, some of Defendants’ measures, such as universal testing, go

26 beyond what the CDC recommends. As such, Plaintiffs have not established, at this stage,

27 that Defendants’ measures are objectively unreasonable. Moreover, there are disputed

28 issues of material fact as to the reasonableness of the measures implemented by MCSO

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1 and whether those measures have been consistently carried out that preclude the Court from

2 issuing a preliminary injunction, particularly since Defendants’ measures to respond to

3 COVID-19 appear to be evolving. See Mayview Corp. v. Rodstein, 480 F.2d 714, 719 (9th

4 Cir. 1973) (finding a preliminary injunction to be improper “[b]ecause of the disputed

5 facts” and that “the matter should proceed to trial on the merits”); see also Torres v.

6 Milusnic, No.: CV 20-4450-CBM-PVC(x), 2020 WL 4197285, at *13 (C.D. Cal. July 14,

7 2020) (“The disputed facts as to the safety measures implemented at Lompoc precludes the

8 Court from issuing a temporary restraining order at this stage requiring Respondents to

9 implement the specific safety measures to combat COVID-19 requested by Petitioners.”);

10 Martinez-Brooks, No. 3:20-cv-00569, 2020 WL 2405350, at *29 (D. Conn. May 12, 2020)

11 (denying request for temporary restraining order because “factual disputes preclude [the

12 court] from concluding at this stage that the Warden’s implementation of measures to

13 protect against the spread of COVID-19 exhibits deliberate indifference to the serious risks

14 posed by the virus, and thus that the Petitioners are likely to succeed on the merits of this

15 portion of their claim”).

16

2. Subjective Deliberate Indifference

17

To succeed on their Eighth Amendment claim with regards to the Post-Conviction

18 Plaintiffs, Plaintiffs must prove subjective deliberate indifference. The subjective prong

19 requires “more than ordinary lack of due care for the prisoner’ s interest or safety.” Farmer,

20 511 U.S. at 835 (quotation omitted). To prove deliberate indifference, a plaintiff must

21 show that the official knew of and disregarded an excessive risk to inmate safety. Id. at

22 837.

23

The spread of COVID-19 within the MCSO jails does not equate to subjective

24 deliberate indifference to the safety of its detainees/prisoners. Courts across the country

25 have struggled with the necessary showing for subjective deliberate indifference in light of

26 COVID-19 in correctional facilities. See, e.g., Torres, 2020 WL 4197285, at *14 (citing

27 Wilson v. Williams, 961 F.3d 829, 841 (6th Cir. 2020) (finding “while the harm imposed

28 by COVID-19 on inmates at Elkton ultimately [is] not averted, the BOP has responded

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1 reasonably to the risk and therefore has not been deliberately indifferent to the inmates’

2 Eighth Amendment rights,” noting evidence that the BOP took preventative measures,

3 including screening for symptoms, educating staff and inmates about COVID-19,

4 cancelling visitation, quarantining new inmates, implementing regular cleaning, providing

5 disinfectant supplies, providing masks, and engaging in efforts to expand testing

6 “demonstrate the opposite of a disregard of a serious health risk”) (internal quotations and

7 citations omitted); Valentine v. Collier, 956 F.3d 797, 802-03 (5th Cir. 2020) (prison

8 officials showed likelihood of success on appeal of preliminary injunction issued by district

9 court requiring the officials to immediately implement more preventive measures to

10 combat COVID-19 in Texas state prison, reasoning the plaintiffs lacked evidence of the

11 defendants’ “subjective deliberate indifference” to the substantial risk of serious harm of

12 COVID-19 and noting “[t]o the contrary, the evidence shows that [Texas Department of

13 Criminal Justice] has taken and continues to take measures—informed by guidance from

14 the CDC and medical professionals—to abate and control the spread of the virus”); Swain

15 v. Junior, 958 F.3d 1081, 1089 (11th Cir. 2020) (finding that the district court incorrectly

16 collapsed the subjective and objective components of the deliberate indifference inquiry

17 for plaintiffs’ Eighth Amendment claim and likely erred because (1) resultant harm does

18 not establish a liable state of mind for deliberate indifference but the district court “treated

19 the increase in COVID-19 infections as proof that the defendants deliberately disregarded

20 an intolerable risk”; and (2) “the inability to take a positive action likely does not constitute

21 ‘a state of mind more blameworthy than negligence’”).

22

Defendants in this case are aware of the risks posed by COVID-19 as evidenced by

23 the Declarations of Williams, Roska and Phillips. However, the evidence presented by

24 Plaintiffs does not satisfy the subjective prong of Plaintiffs’ Eighth Amendment claim by

25 showing that the measures Defendants have taken, or not taken, to protect prisoners from

26 COVID-19 were in conscious or reckless disregard of the safety and health of the

27 detainees/prisoners, even if some do eventually contract COVID-19. See Farmer, 511 U.S.

28 at 844 (the fact that “the harm ultimately was not averted” does not demonstrate deliberate

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 40 of 42

1 indifference); Swain, 958 F.3d at 1089. Accordingly, the record does not support that

2 Defendants are likely to succeed on the merits of their Eighth Amendment claim or that

3 there are serious questions going to the merits of that claim.

4

Because Plaintiffs have failed to show a likelihood of success of merits on either the

5 Eighth or Fourteenth Amendment claims, the Court need not consider the remaining Winter

6 elements. Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (citations omitted).

7

3. ADA/RA

8

Plaintiffs also assert claims and the ADA/RA on behalf of the Pretrial and Post-

9 Conviction Disability subclasses and Puente. To prove a public program or service violates

10 Title II of the ADA, a plaintiff must show: (1) he is a “qualified individual with a

11 disability”; (2) he was either excluded from participation in or denied the benefits of a

12 public entity’s services, programs or activities, or was otherwise discriminated against by

13 the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason

14 of his disability. See 42 U.S.C. § 12132; Does 1-5 v. Chandler, 83 F.3d 1150, 1154-55

15 (9th Cir. 1996). Under Section 504 of the Rehabilitation Act, a plaintiff must show: (1) he

16 is an “individual with a disability”; (2) he is “otherwise qualified” to receive the benefit;

17 (3) he was denied the benefits of the program solely by reason of his disability; and (4) the

18 program receives federal financial assistance. See 29 U.S.C. § 794; Bonner v. Lewis, 857

19 F.2d 559, 562-63 (9th Cir. 1988); Doherty v. Southern College of Optometry, 862 F.2d 570,

20 573 (6th Cir. 1988). Because the ADA has a broader scope, the Ninth Circuit analyzes

21 both Acts under an ADA standard. See Armstrong v. Davis, 275 F.3d 849, 862 (9th Cir.

22 2001); Zuckle v. Regents of the University of California, 166 F.3d 1041, 1045 n.11 (9th

23 Cir. 1999) (“There is no significant difference in analysis of the rights and obligations

24 created by the ADA and the Rehabilitation Act. Thus, courts have applied the same

25 analysis to claims brought under both statutes.”) (internal citations omitted). The plaintiff

26 in a Title II case bears the initial burden “of producing evidence that a reasonable

27 accommodation was possible.” Vinson v. Thomas , 288 F.3d 1145, 1154 (9th Cir. 2002).

28

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 41 of 42

1 The burden then shifts to the public entity to show “that the requested accommodation was

2 not reasonable.” Id.

3

Plaintiffs argue in their Motion that the disability subclasses are vulnerable to severe

4 illness or death if they contract COVID-19 and that Defendants have failed to take steps to

5 protect this vulnerable group to prevent their infection, thereby denying them “an equal

6 opportunity to benefit from the jails’ services, including recreational ‘activities,’ medical

7 ‘services,’ and education and vocational ‘programs.’” (Doc. 14 at 34, quoting Penn. Dep’t

8 of Corrs. v. Yeskey, 524 U.S. 206, 210 (1998).) Plaintiffs cite to Tequida’s Declaration

9 where he states that he stays in his cell during the day and does not get in line to receive

10 his medications or meals because there is no social distancing in the lines. (Id. at 35, citing

11 Tequida Decl. ¶ 13.)

12

Defendants argue that although some of the Plaintiffs’ medical conditions appear to

13 qualify as disabilities under the ADA/RA, Plaintiffs fail to allege sufficient facts showing

14 that they were discriminated against because of those conditions. (Doc. 28 at 44.) Plaintiffs

15 respond that that they do not need to prove intentional, subjective discrimination based on

16 disability, but that a defendant’s failure to provide reasonable accommodations is sufficient

17 to demonstrate discrimination “by reason of disability.” (Doc. 40 at 39, quoting McGary

18 v. City of Portland, 386 F.3d 1259, 1265-66 (9th Cir. 2004).) Plaintiffs are correct that the

19 Ninth Circuit, in McGary, found that the lower court erred in requiring that the defendants

20 act “by reason of” the plaintiff’s disability and held that “facially neutral policies may

21 violate the ADA when such policies unduly burden disabled persons, even when such

22 policies are consistently enforced.” McGary, 386 F.3d at 1265.

23

Nevertheless, Plaintiffs have failed to show that being at a higher risk of contracting

24 COVID-19 equates to a barrier of access to services. The cited affidavit that one Plaintiff

25 does not want to leave his cell for fear of contracting the virus is insufficient to support that

26 the subclasses are categorically inhibited.

27

28

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Case 2:20-cv-01192-SPL-JZB Document 52 Filed 08/14/20 Page 42 of 42

1

Accordingly, Plaintiffs have failed to show a likelihood of success or serious

2 questions going to the merits on their ADA/RA claim and the Court need not consider the

3 remaining Winter elements. Garcia., 786 F.3d at 740.

4

IT IS ORDERED:

5

(1) The reference to the Magistrate Judge is withdrawn as to Plaintiff’s Ex Parte

6 Application for Temporary Restraining Order (Doc. 14), which the Court construes as a

7 Motion for Preliminary Injunction, and Defendants’ Motion to Dismiss (Doc. 32).

8

(2) Defendants’ Motion to Dismiss (Doc. 32) is granted to the extent that the

9 Fourth and Eighth Amendment claims against Defendant Penzone are dismissed. The

10 Motion is denied in all other respects.

11

(3) Plaintiff’s Motion for Preliminary Injunction (Doc. 14) is denied.

12

Dated this 14th day of August, 2020.

13

14

15

Honorable Steven P. Logan United States District Judge

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 1 of 23

1

2

MGD

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE DISTRICT OF ARIZONA

9

10 Jason Fenty, et al.,

No. CV 20-01192-PHX-SPL (JZB)

11

Plaintiffs/Petitioners,

12 v.

ORDER

13 Sheriff Paul Penzone, et al.,
14 Defendants/Respondents.
15

16

Plaintiffs/Petitioners Jason Fenty, Brian Stepter, Douglas Crough, Edward Reason,

17 Jesus Tequida, Ramon Avenenti, Anthony Scroggins, Dale Perez, and Tamara Ochoa, who

18 are each confined in a Maricopa County jail, and the Puente Human Rights Movement

19 (hereafter “Plaintiffs”), filed through counsel a “Petition for Writ of Habeas Corpus and

20 Complaint for Injunctive and Declaratory Relief” (hereafter “Complaint”) concerning the

21 Maricopa County Sheriff’s Office’s (MCSO) response of the to the COVID-19 pandemic

22 and the risk to Plaintiff of contracting COVID-19 while incarcerated in MCSO jails. (Doc.

23 1.) Pending before the Court is Plaintiffs’ Motion for Class Certification.1 (Doc. 14.)

24 . . . .

25 . . . .

26 . . . .

27

28

1 The Court finds this motion suitable for disposition without a hearing pursuant to

Local Rule of Civil Procedure 7.2(f).

Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 2 of 23

1 I. Background2

2

Plaintiffs filed this action on June 12, 2020, presenting seven claims for relief

3 stemming from Defendants’ alleged deliberate indifference to their welfare during the

4 COVID-19 pandemic as well as violations of Title II of the Americans with Disabilities

5 Act (ADA) and Section 504 of the Rehabilitation Act (“Section 504”). (Doc. 1.) Plaintiffs

6 seek declaratory and injunctive relief and/or writs of habeas corpus requiring the release of

7 certain subclass members and injunctive relief “to abate the risk of the spread of COVID-

8 19.” (Id. at 47-50.)

9

In an Order dated August 14, 2020, the Court denied Plaintiffs’ Motion for

10 Preliminary Injunction and granted Defendants’ Motion to Dismiss the Fourth and Eighth

11 Amendment claims against Defendant Penzone and denied the Motion to Dismiss in all

12 other respects. (Doc. 52.)

13 II. Motion for Class Certification

14

Plaintiffs seek certification of two classes: (1) a Pretrial Class, which includes a

15 Pretrial Medically Vulnerable Subclass and a Pretrial Disability Subclass; and (2) a Post-

16 Conviction Class, which includes a Post-Conviction Medically Vulnerable Subclass and a

17 Post-Conviction Disability Subclass. The proposed Pretrial Class consists of “[a]ll current

18 and future persons held by Defendants in pretrial detention at the five jails operated by the

19 Maricopa County Sheriff’s Office, known as the 4th Avenue, Saguaro, Estrella, Lower

20 Buckeye, and Towers jails (together, the ‘Maricopa County jails’).” (Doc. 11 at 3.) The

21 proposed Post-Conviction Class consists of “[a]ll current and future persons held by

22 Defendants in post-conviction detention at the Maricopa County jails.” (Id.) The

23 Medically Vulnerable subclasses include the members of each class who are age 50 or

24 older or who have medical conditions that place them at heightened risk of severe illness

25 or death from COVID-19, such as lung disease, heart disease, chronic liver or kidney

26 disease, diabetes, hypertension, compromised immune systems (such as from cancer, HIV,

27

28

2 The full factual and procedural background is set forth in the Court’s August 14, 2020 Order granting in part Defendants’ Motion to Dismiss and denying Plaintiffs’ Motion

for a Temporary Restraining Order. (Doc. 52.)

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 3 of 23

1 or autoimmune disease), blood disorders (including sickle cell disease), developmental

2 disabilities, severe obesity, and moderate to severe asthma. (Id. at 5.) The Disability

3 subclasses include those with disabilities as defined under the ADA and Section 504 and

4 whose disabilities put them at increased risk of serious illness or death if they contract

5 COVID-19. (Id. at 3.) By definition, under the ADA and Section 504, all Medically

6 Vulnerable Subclass members, except those who are deemed medically vulnerable solely

7 because of their age or obesity, are also members of the Disability Subclasses. (Id.)

8 III. Governing Standard

9

Federal Rule of Civil Procedure 23 sets out the Court’s authority to certify a class

10 action. “Parties seeking class certification bear the burden of demonstrating that they have

11 met each of the four requirements of Federal Rule of Civil Procedure 23(a) and at least one

12 of the requirements of Rule 23(b).” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979-

13 80 (9th Cir. 2011) (citations omitted). Rule 23(a) requires that: (1) the class is so numerous

14 that joinder of all members is impracticable; (2) there are questions of law or fact common

15 to the class; (3) the claims or defenses of the representative parties are typical of the claims

16 or defenses of the class; and (4) the representative parties will fairly and adequately protect

17 the interests of the class. The Rule 23(a) requirements are known as: “(1) numerosity;

18 (2) commonality; (3) typicality; and (4) adequacy of representation.” Parsons v. Ryan, 754

19 F.3d 657, 674 (9th Cir. 2014). When analyzing whether class certification is appropriate,

20 the Court must conduct “a rigorous analysis” to ensure that “the prerequisites of Rule 23(a)

21 have been satisfied.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, (2011) (citing Gen.

22 Tel. Co. of the SW v. Falcon, 457 U.S. 147, 161 (1982)).

23

Plaintiffs argue that they meet the requirements of Rule 23(a) as well as Rule

24 23(b)(2), which requires a demonstration that “the party opposing the class has acted or

25 refused to act on grounds that apply generally to the class, so that final injunctive relief or

26 corresponding declaratory relief is appropriate respecting the class as a whole.”

27

As discussed below, the Court finds that certification of the Classes and the

28 Subclasses is appropriate.

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 4 of 23

1 IV. Rule 23(a) Analysis

2

A. Numerosity

3

Courts have generally found the numerosity requirement to be satisfied “when a

4 class includes at least 40 members.” Rannis v. Recchia, 380 F. App’x 646, 651 (9th Cir.

5 2010) (noting that a class of 15 would be too small and require joinder of all class members

6 rather than class certification) (citing Gen. Tel. Co. of the NW, Inc. v. EEOC, 446 U.S. 318,

7 330 (1980)); see also Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d

8 Cir.1995) (noting that “numerosity is presumed at a level of 40 members”) (citation

9 omitted); In re Nat’l W. Life Ins. Deferred Annuities Litig., 268 F.R.D. 652, 660 (S.D. Cal.

10 2010) (noting that “[c]ourts have found joinder impracticable in cases involving as few as

11 forty class members”) (citations omitted). “While no absolute limit exists, numerosity is

12 met when general knowledge and common sense indicate that joinder would be

13 impracticable.” Knapper v. Cox Commc'ns, Inc., 329 F.R.D. 238, 241 (D. Ariz. 2019)

14 (citations omitted).

15

Plaintiffs argue that the exact numbers and identities of members in each class and

16 subclass are unknown because this information is exclusively within Defendants’ control,

17 but that “common sense dictates that each class and subclass almost certainly includes at

18 least 40 members” since Defendants’ own reports show there are roughly 4,500 individuals

19 currently within the jails.” (Doc. 11 at 12-13.) Plaintiffs allege in their Complaint that

20 there are at least 300 people in the MCSO jails who are medically vulnerable based solely

21 on their age, and they cite to a Department of Justice study finding that “half of state and

22 federal prisoners and local jail inmates reported having a chronic condition.” (Id. at 13.)

23 They also cite to CDC Guidance, which notes that the incarcerated “have higher prevalence

24 of infectious and chronic diseases and are in poorer health than the general population,

25 even at younger ages.” (Id.)

26

Plaintiffs also contend that joinder is impracticable because joinder takes time and

27 any delay in this case “will increase serious harms and even deaths” because COVID-19

28 “is spreading exponentially across the Maricopa County jails.” (Id. at 13.) They further

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 5 of 23

1 argue that joinder is impracticable because of difficulties in communicating with those who

2 are incarcerated, the inherently transitory nature of the classes and inability to identify

3 future class members, and because many class members are indigent and would have

4 limited ability to seek counsel and file individual actions. (Id. at 14.)

5

Defendants do not dispute that the numerosity requirement is satisfied for the two

6 proposed classes. As of August 11, 2020, the MCSO total population was 4,685, (Doc. 54

7 ¶ 3), and there is no doubt that joinder of all members of the proposed classes would be

8 impracticable. See Sepulveda v. Wal-Mart Stores, Inc., 237 F.R.D. 229, 242 (C.D. Cal.

9 2006) (acknowledging that joinder will be impracticable for very large classes); Torres v.

10 Goddard, 314 F.R.D. 644, 654 (D. Ariz. 2010) (“In addition to class size, courts consider

11 other indicia of impracticability, such as . . . the size of individual claims, the financial

12 resources of class members, and the ability of claimants to institute individual suits.”).

13 Thus, the numerosity requirement of the two proposed classes is satisfied.

14

As for the proposed subclasses, Defendants argue that Plaintiffs merely speculate as

15 to how many members there are in the proposed subclasses, and even if numerosity could

16 reasonably be inferred, Plaintiffs have submitted only 12 declarations of inmates still in

17 MCSO custody. (Doc. 53 at 5.) Defendants assert that 4 of those inmates are under age

18 50 and allege no medical conditions, and one declarant has been released, which leaves 5

19 pretrial detainees and 2 post-conviction inmates as members of the proposed subclasses,

20 which is insufficiently numerous. (Id. at 6.)

21

Plaintiffs allege in their Complaint, however, that there are at least 300 medically

22 vulnerable inmates in MCSO jails, and the studies Plaintiffs cite suggest that there are at

23 least 40 members in each of the disability subclasses. These numbers make it impracticable

24 for the Court to join all subclass members in a single action or for subclass members to file

25 individual lawsuits. Thus, Plaintiffs have satisfied the numerosity requirements of the

26 subclasses.

27 . . . .

28 . . . .

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 6 of 23

1

B. Commonality

2

To establish commonality, Plaintiffs must demonstrate that there are “questions of

3 law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Plaintiffs need not demonstrate

4 that all questions are common to the class; rather, class claims must “depend upon a

5 common contention . . . [that is] capable of classwide resolution.” Wal-Mart, 564 U.S. at

6 350. “Even a single [common] question” will suffice to satisfy Rule 23(a). Id. at 359

7 (citation omitted). In the civil rights context, commonality is satisfied “where the lawsuit

8 challenges a system-wide practice or policy that affects all of the putative class members.”

9 Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001).

10

In assessing commonality, “it may be necessary for the court to probe behind the

11 pleadings before coming to rest on the certification question.” Gen’l. Tel. Co. of SW. v.

12 Falcon, 457 U.S. 147, 160 (1982) (“[T]he class determination generally involves

13 considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s

14 cause of action.”) (quotation omitted). That said, although the Court must consider the

15 underlying merits of Plaintiffs’ claims to ascertain whether commonality exists, it is not

16 the Court’s function at this juncture to “go so far . . . as to judge the validity of these

17 claims.” United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv.

18 Workers Int’l Union, AFL-CIO, CLC v. ConocoPhillips Co., 593 F.3d 802, 808-09 (9th

19 Cir. 2010) (quoting Staton v. Boeing Co., 327 F.3d 938, 954 (9th Cir. 2003)). Thus, a

20 motion for class certification is not an opportunity to hold “a dress rehearsal for the trial on

21 the merits.” Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012).

22 The Supreme Court reinforced that plaintiffs are not required to establish their claims at

23 the class certification stage in Amgen Inc. v. Connecticut Retirement Plans and Trust

24 Funds, 568 U.S. 455, 466 (2013) (“Rule 23 grants courts no license to engage in free-

25 ranging merits inquiries at the certification stage.”).

26

Plaintiffs argue that commonality is satisfied because all members of the proposed

27 classes are confined in Maricopa County jails “and are therefore subject to the same

28 policies, procedures, and practices that are part and parcel of Defendants’ woefully

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 7 of 23

1 inadequate response to COVID-19.” (Doc. 11 at 15.) Plaintiffs assert that “[a]ll have been

2 directed by the CDC and other health authorities to abide by certain social distancing

3 practices for their own safety, as well as the safety of others, and their common inability to

4 comply with those guidelines is the direct result of the common conditions of confinement

5 provided by the Defendants. All are subject to the same conditions that actively promote,

6 rather than ameliorate, the spread of COVID-19.” (Id.) They also argue that there are

7 common questions of law because each class and subclass “asks whether the Defendants’

8 policies subject the class members to a heightened risk of serious illness and death” in

9 violation of their Eighth and Fourteenth Amendment rights and the disability subclass asks

10 whether Defendants are violating its members’ rights under the ADA and Section 504. (Id.

11 at 16.)

12

Defendants raise many issues related to commonality in their Response.3

13 Defendants argue first that Plaintiffs’ Motion does not address the elements of either their

14 constitutional or ADA/Section 504 claims and Plaintiffs “have not demonstrated through

15 significant proof a systematic deficient policy or practice such that those claims can be

16 uniformly resolved in one stroke.” (Doc. 53 at 10.) Defendants cite to Wal-Mart, which

17 noted two possible ways of determining commonality in the context of employment

18 discrimination involving a proposed class of both employees and job applicants. Wal-

19 Mart, 564 U.S. at 353. One method was based on whether the employer used a biased

20 testing procedure to evaluate both applicants and employees; the second method required

21 “[s]ignificant proof that an employer operated under a general policy of discrimination . .

22 . [that] manifested itself in hiring and promotion practices in the same general fashion . . .

23 .” (Id.) Based on this second test, Defendants argue that commonality is not met.

24 Defendants go on to distinguish this action from the commonality findings in Parsons and

25 Unknown Parties v. Johnson, 163 F. Supp. 3d 630 (D. Ariz. 2016), upon which Plaintiffs

26 rely. Defendants note that in Parsons, the Ninth Circuit found that the plaintiffs exceeded

27

28

3 Defendants address commonality and Rule 23(b)(2) in the same section of their

Response. (See Doc. 53 at 10-17.)

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 8 of 23

1 the significant proof requirements by presenting “four thorough and unrebutted expert

2 reports . . . hundreds of internal ADC [Arizona Department of Corrections] documents, and

3 [sworn] declarations by the named plaintiff.” (Id. at 13-14 (quoting Parsons, 754 F.3d at

4 683-84).) And, in Unknown Parties, Defendants note that the district court found that the

5 plaintiffs met the significant proof standard by presenting affidavits and information

6 collected from interviews of 75 civil immigration detainees during a two-year period at 8

7 facilities. (Id. (citing Unknown Parties, 163 F. Supp. 3d at 639).)

8

In this case, Plaintiffs filed their Motion for Class Certification within a day of filing

9 their motion for preliminary injunctive relief, which contained voluminous evidence of

10 allegedly deficient policies or practices with respect to COVID-19, including Declarations

11 of the named Plaintiffs and of one expert, Dr. Robert Cohen, M.D.4 (Doc. 8, Exs. 1-15;

12 Doc. 12; Doc. 41 Exs. 1-11.) This evidence contains significant proof of a systematically

13 deficient policy or practice, allowing each of Plaintiffs’ claims to be uniformly resolved in

14 one stroke.

15

Defendants next argue that, while Plaintiffs acknowledge there are differences

16 among the conditions of confinement at the five MCSO jails, Plaintiffs “try to summarily

17 dismiss them as ‘minor’ without any explanation.” (Doc. 53 at 1 (citing Doc. 11 at 13

18 n.7).)5 Defendants, though, do not explain how the conditions of confinement differ in the

19 various jails, and they do not argue that each jail is operating under different policies with

20 respect to COVID-19. Thus, this argument is without merit.

21

Defendants also argue that Plaintiffs disregard that the proposed classes and

22 subclasses have inmates at different custody levels and with different medical conditions

23 and disabilities, which affects the case-by-case analysis required to find a constitutional or

24 statutory violation and to remedy it. (Id.) This argument, too, is without merit because

25

26

4 That evidence is thoroughly discussed in the Court’s August 14, 2020 Order. (See Doc. 52.)

27

5 Plaintiffs assert in footnote 7 that “although there may be minor differences in the

28

conditions at each of the Maricopa County jails, they each remain subject to the same inadequate policies and procedures enacted and enforced by the Defendants.” (Doc. 11 at

15-16 n.7.)

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 9 of 23

1 Rule 23 does not require that every putative class member share every fact in common.

2 See Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th Cir. 2010). Rather, “the existence of

3 shared legal issues with divergent factual predicates is sufficient, as is a common core of

4 salient facts coupled with disparate legal remedies within the class.” Id. For purposes of

5 this action, the operative question is not whether each prospective class member faces the

6 same degree of risk or is likely to suffer the same degree of harm, but whether the policies

7 and conditions to which all inmates are equally subject are deliberately indifferent to a

8 substantial risk of serious harm and/or in violation of the ADA and Section 504.

9

Relevant Supreme Court and Ninth Circuit caselaw supports that this core question

10 of fact and law is amenable to class-wide resolution. See Helling v. McKinney, 509 U.S.

11 25, 33 (1993) (noting that the risk of contracting a communicable disease is “one of the

12 prison conditions for which the Eighth Amendment required a remedy, even though it was

13 not alleged that the likely harm would occur immediately and even though the possible

14 infection might not affect all of those exposed”) (internal citation omitted). “[I]n a civil-

15 rights suit, . . . commonality is satisfied where the lawsuit challenges a system-wide

16 practice or policy that affects all of the putative class members.” Armstrong 275 F.3d at

17 868; Parsons, 754 F.3d at 678 (“What all members of the putative class and subclass have

18 in common is their alleged exposure . . . to a substantial risk of serious future harm to which

19 the defendants are allegedly deliberately indifferent.”).

20

In Parsons, the Ninth Circuit affirmed the district court’s finding of commonality

21 where the plaintiffs had alleged systemic deficiencies in the ADC’s provision of healthcare

22 to prisoners. 754 F. 3d at 678−79. Parsons found that the alleged constitutionally deficient

23 policies and practices in that action were “the ‘glue’ that holds together the putative class

24 and the putative subclass; either each of the policies and practices is unlawful as to every

25 inmate or it is not.” Id. at 678. Parsons went on to clarify that this inquiry “does not

26 require us to determine the effect of those policies and practices upon any individual class

27 member (or class members) or to undertake any other kind of individualized

28 determination.” Id.

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 10 of 23

1

Defendants argue that Parsons is distinguishable because the court there looked

2 beyond the necessity of individualized determinations by reasoning that at some point all

3 prisoners confined in ADC would eventually need medical care, whereas the Plaintiffs’

4 claims here “are contingent on the alleged dangers posed to each individual inmate if they

5 were to contract COVID-19.” (Doc. 53 at 14.) Defendants assert that Plaintiffs have

6 acknowledged that many people who contract COVID-19 do not even develop symptoms,

7 that of the 5 inmates who tested positive for COVID-19 in this case, 4 have recovered

8 without a severe illness, and tests results have shown that more than 40% of MCSO inmates

9 who tested positive were asymptomatic. (Id. at 14-15.) Defendants also point to evidence

10 available online from the CDC that a variety of factors such as underlying medical

11 conditions, age, and race, make the health effects caused by COVID-19 uncertain. (Id. at

12 15.) From this, Defendants argue that the relevant question is not whether Defendants’

13 policies and practices “adequately prevents COVID-19 infection or spread” but rather

14 “whether every inmate is at substantial risk of serious harm, even if they contracted

15 COVID-19,” which “requires an individualized determination of each detainee’s

16 circumstance.” (Id. at 15.)

17

Defendants’ attempt to distinguish Parsons from this action on the ground that the

18 risks posed to MCSO inmates from exposure to COVID-19 are less certain than the risks

19 posed to the Parsons class from exposure to inadequate healthcare is unpersuasive.

20 Parsons relied on the Supreme Court’s findings in Helling, Farmer, and Brown v. Plata,

21 563 U.S. 493 (2011), as well as prior Ninth Circuit precedents, and it noted that these courts

22 asked “only whether the plaintiffs were exposed to a substantial risk of harm to which

23 prison officials were deliberately indifferent,” while, at the same time, they recognized that

24 “many inmates can simultaneously be endangered by a single policy.” Parsons, 754 F.3d

25 at 678. As relevant here, the cases upon which Parsons relied involved prisoners’ alleged

26 exposures to several different policy- and practice-based risks to prisoners’ health and

27 safety. Helling dealt with unsafe drinking water; Graves v. Arpaio, 623 F.3d 1043, 1049

28 (9th Cir. 2010) dealt with heat exposure; Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir.

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 11 of 23

1 1995) dealt with asbestos exposure; and Hoptowit v. Spellman, 753 F.2d 779, 783–84 (9th

2 Cir.1985) dealt with substandard fire prevention. Relying on these and other precedents,

3 Parsons affirmed that,

4

although a presently existing risk may ultimately result in

5

different future harm for different inmates—ranging from no

harm at all to death—every inmate suffers exactly the same

6

constitutional injury when he is exposed to a single . . . policy

7

or practice that creates a substantial risk of serious harm.

8 754 F.3d at 678 (emphasis added).

9

Here, the proper inquiry relative to Plaintiffs’ Eighth and Fourteenth Amendment

10 and ADA/Section 504 claims is not whether each prospective class member can show

11 actual harm from Defendants’ policies, but whether each of them, by virtue of their

12 common confinement at MCSO, faces a substantial risk of contracting COVID-19 and

13 suffering serious harm as a result. Cf. Parsons, 754 F.3d at 679 (“While no inmate can

14 know in advance whether he will receive adequate and timely care in the event that he falls

15 ill or is injured, or know exactly what form of harm he will suffer . . . , every single inmate

16 has allegedly been placed at substantial risk of future harm due to the general

17 unavailability of constitutionally adequate care.”) (emphasis added); see also B.K. by next

18 friend Tinsley v. Snyder, 922 F.3d 957, 971 (9th Cir. 2019) (“The plaintiffs have not

19 brought a concatenation of individual claims that must be redressed through individual

20 injunctions; they have brought unified claims that ‘a specified set of centralized . . . policies

21 and practices . . .’ have placed them at a substantial risk of harm.”) (internal citation

22 omitted).

23

Defendants also take issue with the unsworn Declarations of the proposed class

24 members both as insufficiently numerous and because they contain “inadmissible hearsay”

25 about what the declarant allegedly heard someone else say and anecdotes of isolated or

26 sporadic instances of unknown inmates or officers not following MCSO’s protocols. (Doc.

27 53 at 12.) The Declarations from each of the named Plaintiffs attest to the alleged

28 constitutionally deficient conditions in the MCSO jails, including a lack of testing for

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 12 of 23

1 COVID-19; a lack of medical care for those exhibiting symptoms or testing positive for

2 COVID-19; a lack of social distancing in shared housing facilities, recreation, medical, and

3 food lines; and a lack of personal protective equipment, hygiene and proper cleaning

4 supplies. (See, generally, Doc. 8 Exs. 1-15; Doc. 12; Doc. 41 Exs. 1-11.) In addition,

5 Plaintiffs have produced the Declarations of Dr. Robert L. Cohen, M.D., an internist with

6 over 30 years’ experience in correctional healthcare, including 5 years as Director of the

7 Montefiore Rikers Island Health Services, 17 years as representative of the American

8 Public Health Association on the Board of the National Commission for Correctional

9 Health Care, and as a federal court monitor overseeing efforts to improve medical care for

10 incarcerated people in Florida, Ohio, New York, who opines on MCSO’s response to the

11 COVID-19 outbreak in MCSO jails and additional steps that should be taken immediately

12 to reduce the risk posed by COVID-19. (Doc. 8 Ex. 15; Doc. 12 at 5-85.)

13

Defendants’ comment that the Declarations are unsworn is not a reason to discount

14 this evidence for purposes of class certification. As noted, a motion for class certification

15 is not an opportunity to hold “a dress rehearsal for the trial on the merits.” Messner, 669

16 F.3d at 811; Unknown Parties, 163 F. Supp. 3d at 636 (citation omitted). Here, the

17 Declarations of the named Plaintiffs were taken by Plaintiffs’ counsel over the phone and

18 counsel certified in each instance that they had reviewed the information over the phone or

19 by video visit with each respective Declarant, who then “certified that the information

20 contained in this declaration was true and correct to the best of [his or her] knowledge.”

21 (See Doc. 8, Exs. 1-14.) Moreover, in a similar action in this District, this Court rejected

22 the habeas respondents’ contention that prisoner declarations “taken via telephone due to

23 the unavailability of in-person visits to detainees as a result of the COVID-19 pandemic”

24 should be excluded. See Urdaneta v. Keeton, No. CV-20-00654-PHX-SPL (JFM), 2020

25 WL 2319980, at *5 (D. Ariz. May 11, 2020).

26

As to Defendants’ hearsay argument, to the extent the Declarations contain

27 statements from MCSO officers or employees, they are likely to be admissions by party

28 opponents and thus not hearsay. Moreover, the Declarations primarily contain Plaintiffs’

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 13 of 23

1 first-hand accounts of the alleged policies, practices and overall living conditions at MCSO

2 jails and are undoubtedly among the most probative evidence in this action.

3

The Declarations of the named Plaintiffs regarding the relevant living conditions in

4 MCSO’s jails, combined with Dr. Cohen’s expert opinion on the substantial risks of

5 spreading COVID-19 associated with those conditions, are sufficient to support that the

6 policies and practices of Defendants at MCSO’s jails are deliberately indifferent to a

7 substantial risk of serious harm to the inmates and/or in violation of their rights under the

8 ADA and RA. Accordingly, the Court finds that Plaintiffs have established commonality

9 for the proposed classes and subclasses.

10

C. Typicality

11

“The typicality requirement looks to whether the claims of the class representatives

12 [are] typical of those of the class, and [is] satisfied when each class member’s claim arises

13 from the same course of events, and each class member makes similar legal arguments to

14 prove the defendant’s liability.” Rodriguez, 591 F.3d at 1124 (internal citations and

15 quotations omitted). “Like the commonality requirement, the typicality requirement is

16 ‘permissive’ and requires only that the representative’s claims are reasonably co-extensive

17 with those of absent class members; they need not be substantially identical.” Id. (internal

18 citations and quotations omitted).

19

Plaintiffs argue that each of the named Plaintiffs “assert substantively identical

20 claims that arise from the same failure by Defendants to adequately implement social

21 distancing and other appropriate health and safety measures” at the MCSO jails in response

22 to COVID-19 and that each of the named Plaintiffs is “subject to similar conditions of

23 confinement that present a significant yet avoidable risk of serious illness and death from

24 contracting COVID-19.” (Doc. 11 at 17.)

25

Defendants combine their analysis of the typicality and adequacy factors in their

26 Response. (See Doc. 53 at 6-9.) They argue that Plaintiff Reason is not a member of any

27 Class or Subclass, that Plaintiffs Fenty, Stepter, and Scroggins are not typical or adequate

28

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 14 of 23

1 representatives of the Pretrial subclasses, and that none of the Plaintiffs have exhausted

2 available remedies. (Id.)

3

1. Pretrial Class and Subclasses

4

Plaintiffs seek to have Fenty, Stepter, Crough, Scroggins, Perez and Ochoa represent

5 the Pretrial Class and to have Fenty, Stepter, Crough, and Scroggins additionally represent

6 Pretrial Medically Vulnerable and Disability Subclasses. (Doc. 11 at 7-8, 10.)

7

Defendants do not dispute that Fenty, Stepter, Crough, Scroggins, Perez and Ochoa

8 are typical representatives of the Pretrial Class. Therefore, the Court finds that these six

9 Plaintiffs are typical of the Pretrial Class. Defendants do argue that Fenty, Stepter, and

10 Scroggins are not typical or adequate representatives of the Pretrial subclasses. (Doc. 53

11 at 8-9.) They argue that while Fenty, Stepter, and Scroggins meet Plaintiffs’ definition of

12 “medically vulnerable,” they do not meet the CDC guidelines of who is at most risk of a

13 severe illness from COVID-19 based on their age and/or alleged medical conditions and

14 so are not typical of the Pretrial Subclass claims and are inadequate class representatives.6

15 (Doc. 53 at 8-9.) Defendants contend that only Crough’s allegation that he is 55 and suffers

16 COPD puts him “at risk” of a severe illness from COVID-19, but that Fenty, Stepter and

17 Scroggins only allege medical issues where they “might be at increased risk” for a severe

18 illness from COVID-19. (Id. at 9.)

19

Plaintiffs reply that Defendants do not directly challenge Plaintiffs’ definition of

20 “medically vulnerable,” but instead have supplied their own definition of “medically

21 vulnerable,” thereby implicitly conceding that the definition Plaintiffs have requested

22 applies to Fenty, Stepter, and Scroggins. (Doc. 62 at 14.) Plaintiffs cite to Dr. Cohen’s

23 Declaration in which he explains that the CDC’s distinction between those medical

24 conditions that cause an increased risk of severed illness or death from COVID-19 and

25 those that “might” cause an increased risk “is based on the quality and quantity of data

26

27

6 Plaintiffs’ define “medically vulnerable” as those “aged 50 years or older or [who] have medical conditions that place them at heightened risk of severe illness or death from

28

COVID-19,” such as lung disease, heart disease, chronic liver or kidney disease, diabetes, hypertension, compromised immune systems, blood disorders, developmental disability,

severe obesity, and/or moderate to severe asthma. (Doc. 11 at 5.)

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 15 of 23

1 currently available in a rapidly shifting environment.” (Id., citing Cohen Decl. ¶ 15 (Doc.

2 41, Ex. 11).) Cohen states that “given the constant evolution of science’s understanding of

3 COVID-19, people with medical conditions on either [CDC] list should be deemed

4 medically vulnerable” and that the “CDC’s own data strongly suggests the increased risk

5 from COVID-19 faced by those with chronic conditions in the second category.” (Id.,

6 citing Cohen Decl. ¶ 15.)

7

Plaintiffs allege that Fenty is 48 years old and has stage 2 hypertension, adjustment

8 disorder with anxiety, PTSD, and chest pain; Stepter is 61 and has chronic respiratory

9 problems that result in difficult breathing, requires oxygen treatments to clear his lungs,

10 and has high blood pressure, Crough is 55 and has a heart condition, COPD, hepatitis, and

11 chest pain caused by stable angina; and Scroggins is 44 and has asthma. Defendants do

12 not argue that these Plaintiffs do not meet Plaintiffs’ definitions of the medically vulnerable

13 and disability subclasses or that Plaintiff’s definitions are inappropriate. The Court

14 therefore finds that Fenty, Stepter, Crough and Scroggins are adequate representatives of

15 the Pretrial Medically Vulnerable and Disability Subclasses.

16

2. Post-Conviction Class and Subclasses

17

Plaintiffs seek to have Reason, Tequida, and Avenenti represent the Post-Conviction

18 class and for Reason and Tequida to represent the Post-Conviction Medically Vulnerable

19 and Disability Subclasses. (Doc. 11 at 9-10.)

20

Defendants argue that Plaintiff Reason may not proceed as a class representative at

21 all because his claims became moot before class certification and Plaintiffs may not

22 substitute him with another class representative. (Doc. 53 at 7.) Defendants previously

23 asserted in response to Plaintiffs’ motion for injunctive relief that Reason was released

24 from custody on July 11, 2020. (Doc. 28 at 36.)

25

The fact that Plaintiff Reason has been released is irrelevant because Defendants do

26 not dispute the adequacy or typicality of Tequida or Avenenti in representing the Post-

27 Conviction Class and Tequida in representing the Post-Conviction Subclasses. Thus,

28 Tequida and Avenenti are typical of the Post-Conviction Class and Tequida is typical of

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 16 of 23

1 the Post-Conviction Subclasses and they may adequately represent those classes and

2 subclasses.

3

3. Exhaustion of Administrative Remedies

4

Defendants also argue that Plaintiffs are not typical and adequate class

5 representative because they have not exhausted available administrative remedies before

6 bringing their claims and are therefore precluded from representing the classes and

7 subclasses. (Doc. 53 at 9.)

8

Plaintiffs respond that Defendants’ exhaustion argument is inappropriate, they do

9 not provide any authority holding that their affirmative defense is relevant to the typicality

10 or adequacy analysis under Rule 23, and this affirmative defense does not bar class

11 certification. (Doc. 62 at 12.)

12

Defendants raised the issue of exhaustion of administrative remedies in their prior

13 Motion to Dismiss. (Doc. 28.) In the Court’s August 14, 2020 Order, the Court rejected

14 this argument and Defendants’ evidence because consideration of this evidence would

15 require the Court to go beyond the face of the Complaint, and the Court declined to convert

16 Defendants’ Motion to Dismiss into one for summary judgment. (Doc. 52 at 7.) The Court

17 noted that Defendants may renew their exhaustion argument in a properly supported

18 summary judgment motion. (Id.) Defendants filed their Response to Plaintiff’s Motion

19 for Class Certification (Doc. 53) the same day the Court issued its Order on Defendants’

20 Motion to Dismiss, and Defendants presumably did not have the benefit of the Court’s

21 analysis of the exhaustion argument. Defendants have presented no authority to support

22 that it is appropriate to address exhaustion at the class certification stage. Therefore,

23 Defendants’ current exhaustion argument is without merit, but Defendants may renew the

24 argument in a properly supported summary judgment motion.

25

D. Adequacy of Representation

26

Rule 23(a)(4) requires that class representatives fairly and adequately represent the

27 interests of the entire class. “This factor requires: (1) that the proposed representative

28 Plaintiffs do not have conflicts of interest with the proposed class, and (2) that Plaintiffs

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 17 of 23

1 are represented by qualified and competent counsel.” Dukes v. Wal-Mart Stores, Inc, 603

2 F.3d 571, 614 (9th Cir. 2010) (rev’d on other grounds by 564 U.S. 338); see also Rodriguez,

3 591 F.3d at 1125 (“Whether the class representatives satisfy the adequacy requirement

4 depends on the qualifications of counsel for the representatives, an absence of antagonism,

5 a sharing of interests between representatives and absentees, and the unlikelihood that the

6 suit is collusive.”) (internal citations and quotations omitted).

7

The Supreme Court has found that commonality and typicality also relate to a

8 representative’s adequacy. See Gen. Tel. Co., 457 U.S. at 157 n.13. Defendants do not

9 make any specific argument related to adequacy, and the Court has already determined that

10 Plaintiffs have satisfied the commonality and typicality factors. As to Plaintiffs’ counsel,

11 Plaintiffs assert that class counsel are attorneys from the ACLU and the law firms of

12 Dechert, LLP and Stinson, LLP and have “extensive relevant experience to litigate this

13 matter to completion,” and have either participated as class counsel or have extensive

14 subject-matter expertise in civil rights cases, including in other cases related to COVID-19

15 in the detention context. (Doc. 11 at 18.) They further assert that the individually named

16 Plaintiffs have the requisite personal interest in the outcome of this case that they share

17 with all class member and will fairly and adequately protect the interests of the proposed

18 classes. (Id. at 18-19.) Accordingly, the Court finds the adequacy requirement is satisfied.

19 V. Rule 23(b)(2) Analysis

20

To obtain class certification, Plaintiffs must also satisfy one of the requirements set

21 forth in Federal Rule of Civil Procedure Rule 23(b). Plaintiffs claim that they meet the

22 requirements under Rule 23(b)(2), which states that “the party opposing the class has acted

23 or refused to act on grounds that apply generally to the class, so that final injunctive relief

24 or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R.

25 Civ. P. 23(b)(2).7

26

27

7 Plaintiffs also argue, in the alternative, that the proposed classes satisfy Rule 23(b)(1) “because requiring hundreds of individual class members to prosecute separate

28

actions on the same claims would create a significant risk of inconsistent or varying adjudications that would establish incompatible standards of conduct for Defendants.”

(Doc. 11 at 19 n.8.)

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 18 of 23

1

Plaintiffs argue there can be no reasonable dispute that this action falls squarely

2 within Rule 23(b)(2) because courts “have repeatedly invoked Rule 23(b)(2) to certify

3 classes of inmates seeking declaratory and injunctive relief for alleged widespread Eighth

4 Amendment violations in prison systems.” (Doc. 11 at 19 (quoting Parsons, 754 F.3d at

5 686).) Plaintiffs also cite to Rodriguez, which held that the requirements of Rule 23(b)(2)

6 were met when “class members complain of a pattern or practice that is generally

7 applicable to the class as a whole” and when “class members seek uniform relief from a

8 practice applicable to all of them.” 591 F.3d at 1125-26. Plaintiffs argue that those

9 requirements are easily satisfied here because Defendants have subjected all proposed class

10 members to the same unconstitutional policies or practices that expose Plaintiffs to an

11 unreasonable risk of serious harm and the injunctive relief requested by Plaintiff is

12 appropriate for each class as a whole. (Doc. 11 at 19.)

13

The only specific argument Defendants make regarding Rule 23(b)(2) is that

14 commonality and/or Rule 23(b)2) are lacking because the Court would need to determine

15 whether each class member can be released into a situation that does not place them or the

16 general public at a heightened risk of contracting COVID-19, and, because Plaintiffs are

17 each held under different criminal statutes, the considerations regarding their release vary

18 from one inmate to another. (Doc. 53 at 16-17.)

19

The only class for which Plaintiffs seek release are the members of the Pretrial

20 Medically Vulnerable and Pretrial Disability Subclasses who are incarcerated “solely due

21 to their inability to afford a financial condition of release, or whose release Defendants do

22 not object to[.]” (Doc. 1 at 48 ¶ c.) Plaintiffs further request injunctive relief and/or writ

23 of habeas corpus “imposing a process—to be determined by the Court—to consider the

24 release or enlargement of all remaining Pretrial Medically Vulnerable Subclass and Pretrial

25 Disability Subclass members not released pursuant to Paragraph c within two weeks, and

26 members of the Post-Conviction Medically Vulnerable Subclass” using such factors as the

27 inmate’s risk of flight or danger to others, whether that risk is outweighed by the threat to

28

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 19 of 23

1 the inmate’s health and safety posed by their exposure to COVID-19 in the MCSO jails,

2 and the length remaining on a convicted inmate’s sentence. (Id. ¶ d.)

3

For purposes of Rule 23(b)(2), what matters is that a pattern of alleged violations

4 can be remedied for all putative class members by the same form of injunctive relief.

5 Plaintiffs have met that requirement here by seeking a class-wide process for determining

6 who is entitled to release, and this process will apply across the board to the relevant class

7 members and thereby facilitate the ease of determining release.

8

Plaintiffs have also satisfied Rule 23(b)(2) for the reasons already discussed with

9 respect to commonality. For each proposed class and subclass, Plaintiffs have alleged that

10 Defendants have failed to take constitutionally adequate measures to prevent the spread of

11 COVID-19, creating a substantial risk of infection for all class members in MCSO jails “on

12 grounds that apply generally to the class.” Fed. R. Civ. P. 23(b)(2). Further, in seeking to

13 remedy the conditions of confinement for all class members, Plaintiffs have sought “final

14 injunctive relief or corresponding declaratory relief [that] is appropriate respecting the

15 class[es and subclasses] as a whole.” Id.

16 VI. Habeas Claim

17

In their Fourth Claim for Relief, Plaintiffs assert a habeas corpus claim pursuant to

18 28 U.S.C. § 2241 on behalf of all Pretrial Medically Vulnerable Subclass members for

19 alleged Fourteenth Amendment violations. (Doc. 1 at 42-43.) Plaintiffs allege that the

20 continued confinement of this subclass “is punitive, not rationally related to a legitimate

21 purpose, and/or excessive in relation to any legitimate purpose, in addition to being

22 objectively deliberately indifferent.” (Id. ¶ 182.) Plaintiffs further allege that “there are

23 no conditions of confinement that will adequately protect members of the Pretrial

24 Medically Vulnerable Subclass from the risk of infection, serious injury and death from

25 COVID-19.” (Id. ¶ 184.) And they contend that “[t]he only way to [ ] to remove the

26 unacceptable risk posed to the Pretrial Medically Vulnerable Subclass by COVID-19 is to

27 remove these class members from the jail via release or enlargement.” (Id. ¶ 188.) As

28 previously noted, Plaintiffs seek the immediate release of all members of the Pretrial

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 20 of 23

1 Medically Vulnerable Subclass who remain incarcerated solely because they cannot afford

2 a financial condition of release or whose release Defendants do not object to and for a

3 process to consider the release or enlargement of the remaining Pretrial Medically

4 Vulnerable and Disability Subclass members. (Id. at 48.)

5

Defendants argue that the Court should not certify the habeas petition “for all the

6 reasons that the underlying constitutional and statutory claims should not be certified.”

7 (Doc. 53 at 17-18.) Defendants assert that the Supreme Court “has never addressed

8 whether habeas relief can be pursued in a class action” but that such actions are “ordinarily

9 disfavored.” (Id. at 17 (quoting Jennings v. Rodriguez, 138 S.Ct. 830, 858 n.7 (2018)

10 (Thomas, J., concurring) and citing Rodriguez v. Hayes, 591 F.3d 1104, 1117 (9th Cir.

11 2010)).)

12

Plaintiffs reply that they are seeking habeas relief on behalf of the Pretrial Medically

13 Vulnerable Subclass “in connection with a single claim predicated on a single set of facts”

14 and that the Ninth Circuit has permitted habeas relief on a class-wide basis. (Doc. 62 at

15 17-18, citing Cox v. McCarthy, 829 F.2d 800, 804 (9th Cir. 1987) (holding that “a class

16 action may lie in habeas corpus)” and Mead v. Parker, 464 F.2d 1108, 1112-13 (9th Cir.

17 1972) (holding that a class action in habeas corpus may be appropriate “where the relief

18 sought can be of immediate benefit to a large and amorphous group”).)

19

“Courts are split as to whether claims by prisoners in light of the COVID-19

20 pandemic are challenges to the fact or duration of confinement properly brought as a habeas

21 claim under Section 2241, or challenges to the conditions of confinement which fall outside

22 the core of habeas corpus.” Torres, 2020 WL 4197285, at *6 (citing cases). In Torres, the

23 district court concluded that the plaintiffs/petitioners properly asserted a § 2241 habeas

24 claim challenging the fact of their confinement because the petitioners there asserted that

25 there was “no set of conditions of confinement that could be constitutional.” Id. at *7.

26 Likewise, here, Plaintiffs have alleged that “there are no conditions of confinement that

27 will adequately protect members of the Pretrial Medically Vulnerable Subclass from the

28 risk of infection, serious injury and death from COVID-19.” (Doc. 1 ¶ 184.) Thus, the

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 21 of 23

1 Court concludes that Plaintiffs have properly asserted a habeas claim in their Fourth Claim

2 for Relief pursuant to § 2241 challenging the fact of their confinement.

3 VII. Conclusion

4

Because the requirements for class certification under Federal Rules of Civil

5 Procedure 23(a) and 23(b) are met, the Court will grant Plaintiffs Motion for Class

6 Certification and certify the two proposed classes and four subclasses in this action.

7

IT IS ORDERED:

8

(1) The reference to the Magistrate Judge is withdrawn as to Plaintiffs’ Motion

9 for Class Certification (Doc. 11) and the Motion is granted.

10

(2) The following Classes and Subclasses are certified pursuant to Rule 23:

11

(a) The Pretrial Class, defined as

12

All current and future persons held by Defendants in pretrial

13

detention at the five jails operated by the Maricopa County

Sheriff’s Office, known as the 4th Avenue, Saguaro, Estrella,

14

Lower Buckeye, and Towers jails (together, the “Maricopa

15

County jails”).

16

Within the Pretrial Class are two Subclasses:

17

(1) Pretrial Medically Vulnerable Subclass, defined as

18

Members of the Pretrial Class who are aged 50 years or

19

older or who have medical conditions that place them at

20

heightened risk of severe illness or death from COVID19 such as lung disease, heart disease, chronic liver or

21

kidney disease (including hepatitis and dialysis

patients), diabetes, hypertension, compromised immune

22

systems (such as from cancer, HIV, or autoimmune

23

disease), blood disorders (including sickle cell disease),

developmental disability, severe obesity, and/or

24

moderate to severe asthma.

25

(2) Pretrial Disability Subclass defined as

26

All current and future pretrial detainees who are people

27

with disabilities as defined under the Americans with

Disabilities Act (ADA) and Section 504 of the

28

Rehabilitation Act (“Section 504”), and whose

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Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 22 of 23

1

disabilities put them at increased risk of serious illness

or death if they contract COVID-19. The Pretrial

2

Disability Subclass includes all members of the Pretrial

3

Medically Vulnerable Subclass except those vulnerable solely on the basis of age or obesity.

4

(b) The Post-Conviction Class, defined as

5

All current and future persons held by Defendants in post-

6

conviction detention at the Maricopa County jails.

7

Within the Post-Conviction Class are two Subclasses:

8

(1) Post-Conviction Medically Vulnerable

Subclass defined as 9

10

Members of the Post-Conviction Class who are aged 50 years or older or who have medical conditions that place

11

them at heightened risk of severe illness or death from

COVID-19 such as lung disease, heart disease, chronic

12

liver or kidney disease (including hepatitis and dialysis

13

patients), diabetes, hypertension, compromised immune

systems (such as from cancer, HIV, or autoimmune

14

disease), blood disorders (including sickle cell disease),

15

developmental disability, severe obesity, and/or

moderate to severe asthma.

16

(2) Post-Conviction Disability Subclass defined as

17

All current and future post-conviction detainees who are

18

people with disabilities as defined under the ADA and

19

Section 504, and whose disabilities put them at

increased risk of serious illness or death if they contract

20

COVID-19. The Post-Conviction Disability Subclass

21

includes all members of the Post-Conviction Medically

Vulnerable Subclass except those vulnerable solely on

22

the basis of age or obesity.

23

(3) Named Plaintiffs Fenty, Stepter, Crough, Scroggins, Perez, and Ochoa are

24 appointed as representatives of the Pretrial Class. Plaintiffs Fenty, Stepter, Crough, and

25 Scroggins are additionally appointed as representatives of the Pretrial Medically

26 Vulnerable Subclass and the Pretrial Disability Subclass.

27 . . . .

28 . . . .

- 22 -

Case 2:20-cv-01192-SPL-JZB Document 67 Filed 11/13/20 Page 23 of 23

1

(4) Named Plaintiffs Tequida and Avenenti are appointed as representatives of

2 the Post-Conviction Class. Plaintiff Tequida is additionally appointed as representative 3 of the Post-Conviction Medically Vulnerable Subclass and the Post-Conviction Disability

4 Subclass.

5

Dated this 13th day of November, 2020.

6

7

Honorable Steven P. Logan

8

United States District Judge

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 2:20-cv-01192-SPL-JZB Document 10 Filed 06/29/20 Page 1 of 39

1 Larry J. Wulkan (021404) STINSON LLP
2 Firm Identification Number 00462400 1850 North Central Avenue, Suite 2100
3 Phoenix, Arizona 85004-4584 Telephone: (602) 279-1600
4 Fax: (602) 240-6925 Email: larry.wulkan@stinson.com
5

6
Counsel for Plaintiffs 7 Additional counsel listed on following page

8

9

UNITED STATES DISTRICT COURT

10

DISTRICT OF ARIZONA

11 Jason Fenty, Brian Stepter, Douglas Crough, Edward Reason, Jesus Tequida,
12 Ramon Avenenti, Anthony Scroggins, Dale Perez, and Tamara Ochoa on behalf
13 of themselves and those similarly situated,
Plaintiff-Petitioners, 14

No. 2:20-cv-01192-SPL-JZB
PLAINTIFF-PETITIONERS’ EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER

15 Puente Human Rights Movement,

16 Plaintiff,

17 v.

18 Sheriff Paul Penzone, in his official capacity, and Maricopa County, a
19 municipal entity,

20

Defendants.

21

22

23

24

25

26

27

28

CORE/3502877.0004/160200868.1

Case 2:20-cv-01192-SPL-JZB Document 10 Filed 06/29/20 Page 2 of 39

1 Ethan J. Sanders* (MO 71151) STINSON LLP
2 1201 Walnut Street, Suite 2900 Kansas City, MO 64106
3 Telephone: (816) 691-2628 ethan.sanders@stinson.com
4
Brian Raphel* (NY 5592308) 5 Pat Andriola* (NY 5406327)
Timothy Ly* (NY 5478540) 6 DECHERT LLP
Three Bryant Park 7 1095 Avenue of the Americas
New York, NY 10036 8 Telephone: (212) 698-3500
brian.raphel@dechert.com 9 pat.andriola@dechert.com
timonty.ly@dechert.com
10
Jared G. Keenan (AZ 027068) 11 Victoria Lopez** (AZ 330042)
Casey Arellano (AZ 031242) 12 ACLU FOUNDATION OF ARIZONA
P.O. Box 17148 13 Phoenix, AZ 85011
Telephone: (602) 650-1854 14 jkeenan@acluaz.org
vlopez@acluaz.org 15 casey.arellano@acluaz.org

Shari Ross Lahlou * (DC 476630) DECHERT LLP 1900 K Street, N.W. Washington, DC 20006 - 1110 Telephone: (202) 261-3300 shari lahlou@dechert.com
Benjamin M. Sadun* (CA 287533) Allison Ozurovich* (CA 312797) DECHERT LLP 633 West 5th Street, Suite 4900 Los Angeles, CA 90071 Telephone: (213) 808-5700 benjamin.sadun@dechert.com allie.ozurovich@dechert.com
Eric Balaban (Admitted to Maryland Bar) Pro Hac Vice AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th St. NW, 7th Floor Washington, DC 20005 Telephone: (202) 393-4930 ebalaban@aclu.org

16 Olga Akselrod (NY 4132825) Pro Hac Vice Zoe Brennan-Krohn (CA 324912)

Hugh Handeyside (NY 5394002)

Pro Hac Vice

17 Pro Hac Vice

AMERICAN CIVIL LIBERTIES

Clara Spera (NY 5590229) Pro Hac Vice

UNION FOUNDATION

18 Somil Trivedi* (NY 4834495)

39 Drumm Street

AMERICAN CIVIL LIBERTIES UNION San Francisco CA 94111

19 FOUNDATION

Telephone: (415) 343-0769

125 Broad Street, 18th Floor

Zbrennan-krohn@aclu.org

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Telephone: (212) 549-2569

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hhandeyside@aclu.org

22 cspera@aclu.org

strivedi@aclu.org

23

*Application for pro hac vice forthcoming 24 **Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

25

26

27

28

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1

TABLE OF CONTENTS

Page 2

3 MOTION ....................................................................................................................................... 1

4 MEMORANDUM OF POINTS AND AUTHORITIES ......................................................... 1

5

I. STATEMENT OF FACTS............................................................................ 3

6

A. COVID-19 Poses a Significant Risk of Serious Illness and

Death. ................................................................................................. 3

7

B. People in Congregate Environments—Like the Maricopa

8

County Jails—Are Particularly Vulnerable to COVID-19. ............... 5

9

C. The Maricopa County Jails Have Not Implemented Adequate

Measures to Protect Incarcerated Persons from the Risk of

10

Infection. ............................................................................................ 6

11

II. ARGUMENT .............................................................................................. 16

12

A. Absent Relief, Plaintiffs are Certain to Suffer Irreparable

Harm. ................................................................................................ 17

13

B. Plaintiffs Have a Substantial Likelihood of Success on the

14

Merits Under 42 U.S.C. Section 1983.............................................. 18

15

1. Defendants’ Unconstitutional Punishment of Pretrial

Detainees Violates Due Process Rights. ............................... 18

16

2. Defendants’ Deliberate Indifference to the Risks of

17

COVID-19 Also Violates The Right to Constitutional

Conditions of Confinement. .................................................. 20

18

3. Defendants Have a Policy, Custom, and Practice of

19

Violating Plaintiffs’ Rights. .................................................. 26

20

C. The Medically Vulnerable Subclasses Are Likely To Succeed

on Their Habeas Claims. .................................................................. 27

21

1. No Set of Conditions Will Reduce the Risk of Serious

22

Harm for the Medically Vulnerable Subclass. ...................... 28

23

2. The Medically Vulnerable Subclass Members Are Also

Entitled to Release or Enlargement Under § 1983................ 29

24

D. Defendants Have A Substantial Likelihood of Success on the

25

Merits of Their ADA and Section 504 Claims................................. 29

26

E. The Balance of Equities and Public Interest Weigh Heavily in

Plaintiffs’ Favor................................................................................ 33

27

III. CONCLUSION ........................................................................................... 34

28

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1

Pursuant to Federal Rule of Civil Procedure 65, Petitioners-Plaintiffs (“Plaintiffs”)

2 hereby apply for a temporary restraining order, commanding Respondents-Defendants

3 (“Defendants”) to (1) immediately improve conditions at the Maricopa County jails,

4 including through social distancing, educate the incarcerated about COVID-19, administer

5 universal testing, develop protocols for intake cohorting, testing, and monitoring, develop

6 protocols for quarantine, testing, and monitoring people who are suspected to have been

7 exposed to COVID-19, develop protocols for protecting incarcerated medically vulnerable

8 people, develop protocols for housing people who have tested positive for COVID-19,

9 distribute meals safely, require PPE, and distribute cleaning supplies and PPE to Plaintiffs;

10 (2) immediately release or enlarge custody of the members of the Pretrial Medically

11 Vulnerable and Pretrial Disability Subclasses who are incarcerated solely due to their

12 inability to afford a financial condition of release, or whose release Defendants do not object

13 to; and (3) engage in the process set forth in the proposed order to evaluate for release other

14 members of the Medically Vulnerable and Disability Subclasses from the Maricopa County

15 jails. This Application is based upon Plaintiffs’ Memorandum of Points and Authorities;

16 Petitioners’ Petition for Writ of Habeas Corpus and Complaint for Injunctive and

17 Declaratory Relief (Dkt. 1); and all supporting documents filed concurrently herewith.

18 Plaintiffs have also lodged a proposed Order with the Court. Due to the immediate and

19 irreparable injury to Plaintiffs as described below, Plaintiffs are not required to provide

20 notice. See Fed. R. Civ. P. 65(b)(1)(A), (B). Plaintiffs also request that the Court waive any

21 security requirement. See Fed. R. Civ. P. 65(c).

22

MEMORANDUM OF POINTS AND AUTHORITIES

23

In one month, the number of COVID-19-positive cases at the Maricopa County jails

24 has skyrocketed from four to 565—a more than 14,000 percent increase. Though

25 Defendants have adopted a plan purportedly designed to ameliorate the spread of COVID-

26 19, including SOP J-02-023, the policy and its implementation are woefully lacking. Chief

27 among the many shortcomings of Defendants’ response to COVID-19 is that they altogether

28 fail to adopt any measures targeted at preventing the medically vulnerable and disabled

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1 from getting infected, placing them at acute risk of physical harm.

2

By any measure, the conditions at the Maricopa County jails—4th Avenue, Saguaro,

3 Estrella, Lower Buckeye, and Towers—are dangerous. As Plaintiffs’ declarations show, the

4 jails’ practices and procedures have made it all but impossible for detainees to practice the

5 requisite social distancing or personal hygiene necessary to minimize the threat of the virus.

6 Plaintiffs and others cannot maintain six-foot distance from other individuals: they sleep,

7 eat, shower, and engage in other activities in close proximity with each other. Cleaning

8 standards are inadequate, and cleaning supplies are frequently insufficient. Nor have

9 Defendants implemented universal testing—a key measure to help ensure that infected

10 incarcerated persons and jail staff do not infect the remaining jail population, and that timely

11 monitoring and treatment is initiated for infected persons. In sum, the current conditions at

12 the Maricopa County jails are “so grave”—especially for the medically vulnerable and

13 disabled—that they “violate[] contemporary standards of decency to expose anyone

14 unwillingly to such a risk” and therefore violate Plaintiffs’ constitutional rights. See Helling

15 v. McKinney, 509 U.S. 25, 36 (1993). The jails’ failure to take reasonable measures to

16 protect people with disabilities at high risk of COVID-19 complications or death is also a

17 violation of their rights under the Americans with Disabilities Act (ADA) and Section 504

18 of the Rehabilitation Act (Section 504).

19

This Court has already recognized the need to protect incarcerated people from

20 COVID-19. See generally Urdaneta, et al. v. Keeton, et. al., 2020 WL 2319980 (D. Ariz.

21 May 11, 2020). In Urdaneta, this Court held that the plaintiffs, detainees at two federal

22 immigration detention facilities, established a likelihood of success on the merits and

23 irreparable harm for the same reason Plaintiffs seek relief here: the facilities “fostered

24 conditions that pose an objectively unreasonable risk of transmission of COVID-19 and a

25 resulting substantial risk of serious harm to Petitioner’s health and ultimate safety.” Id. at

26 *12. Critically, at the time of the Court’s order, neither facility at issue had any new cases—

27 and one facility had none at all. At this point, the explosion of cases currently plaguing the

28 Maricopa County jails presents a significantly more dangerous situation than was the case

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1 at the time of this Court’s order.

2

Accordingly, Plaintiffs ask this Court to certify the classes and subclasses described

3 in the Complaint1 and issue an order requiring Defendants to: (1) immediately improve

4 conditions at the Maricopa County jails, including through those measures identified in the

5 proposed Order; (2) immediately release or enlarge custody of the members of the Pretrial

6 Medically Vulnerable and Pretrial Disability Subclasses who are incarcerated solely due to

7 their inability to afford a financial condition of release, or whose release Defendants do not

8 object to; and (3) engage in the process set forth in the proposed Order to evaluate for release

9 and/or enlargement other members of the Medically Vulnerable and Disability Subclasses

10 from the Maricopa County jails.

11 I. STATEMENT OF FACTS

12

A. COVID-19 Poses a Significant Risk of Serious Illness and Death.

13

COVID-19 is a deadly and rapidly spreading global pandemic. As of June 26, 2020,

14 the outbreak has resulted in over 9 million confirmed cases worldwide, with more than

15 484,000 deaths.2 These numbers are growing exponentially; on June 26, 2020, the World

16 Health Organization reported more than 177,000 new infections worldwide in the preceding

17 24 hours.3 The United States has seen more than 2 million cases to date and more than

18 121,000 deaths.4

19

The consequences of contracting COVID-19 can be severe. COVID-19 can result in

20 respiratory failure, kidney failure, and death. To date, 5.1% of people in the United States

21 with a confirmed COVID-19 diagnosis died from the virus.5 Infected individuals who do

22

1 The parties, classes, and subclasses identified herein refer to those classes and subclasses 23 set forth in the Complaint. See Dkt No. 1, ¶¶ 22-41. In support of their request for

certification of the classes or provisional certification in the alternative, Plaintiff-Petitioners

24 respectfully refer the Court to their motion for class certification, filed concurrently

herewith. 25 2 Coronavirus disease 2019 (COVID-19) Situation Report - 92, WHO, June 26, 2020,

available

at

https://www.who.int/docs/default-source/coronaviruse/situation-

26 reports/20200626-covid-19-sitrep-158.pdf?sfvrsn=1d1aae8a_2.

3 Id. 27 4 Id.

5 Coronavirus Resource Center, Mortality Analysis, Johns Hopkins Univ. (June 27, 2020), 28 available at https://coronavirus.jhu.edu/data/mortality.

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1 not die from the disease can face serious damage to the lungs, heart, liver, or other organs,

2 resulting in prolonged recovery periods, or, in the most severe cases, acute respiratory

3 disease syndrome (“ARDS”), which has a 30% mortality rate even under ideal medical

4 care.6 The risk posed by COVID-19 is especially grave to persons 50 years of age and over,

5 as well as persons of any age with certain underlying medical conditions, including chronic

6 diseases and health conditions, such as lung disease, heart disease, chronic liver or kidney

7 disease (including hepatitis and dialysis patients), diabetes, hypertension, compromised

8 immune systems (such as from cancer, HIV, or autoimmune disease), blood disorders

9 (including sickle cell disease), developmental disability, severe obesity, and moderate to

10 severe asthma. Ex. 15 (Cohen Decl.) ¶ 4.7 People with all of these risk factors (except age

11 or obesity alone) are people with disabilities as defined under federal law.

12

COVID-19 is highly contagious, spreading from person to person through

13 respiratory droplets, close personal contact, and from contact with contaminated surfaces

14 and objects.8 There is no vaccine against COVID-19, nor is there any known medication to

15 prevent or cure infection. Ex. 15 (Cohen Decl.) ¶ 16. A large percentage of COVID-19-

16 infected persons are asymptomatic, or only display certain of the associated symptoms, and

17 yet are still contagious. Id. ¶ 18. Thus, the most effective measures to prevent infection are

18 through social distancing—that is, keeping at least six feet between persons to avoid

19 transmission—comprehensive testing, the wearing of masks, and vigilant hygiene.9 Ex. 15

20
6 Letter from Faculty at Johns Hopkins School of Medicine, School of Nursing, and 21 Bloomberg School of Public Health to Hon. Larry Hogan, Gov. of Maryland, Mar. 25, 2020,
available at https://bioethics.jhu.edu/wp-content/uploads/2019/10/Johns-Hopkins-faculty22 letter-on-COVID-19-jails-and-prisons.pdf.
7 WORLD HEALTH ORGANIZATION, Coronavirus disease (COVID-19) advice for the public: 23 Myth busters, https://cutt.ly/dtEiCyc (“Older people, and people with pre-existing medical
conditions (such as asthma, diabetes, heart disease) appear to be more vulnerable to 24 becoming severely ill with the virus.”); CDC, Groups at Higher Risk of Severe Illness,
https://cutt.ly/AtJDxSv; CDC, Interim Guidance on Management of Coronavirus Disease 25 2019 (COVID-19) in Correctional and Detention Facilities, https://cutt.ly/8uzZfqC (“Note
that incarcerated/detained populations have higher prevalence of infectious and chronic 26 diseases and are in poorer health than the general population, even at younger ages.”).
8 Interim Infection Prevention and Control Recommendations for Patients with Suspected 27 or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings, CDC,
Apr. 13, 2020, available at https://cutt.ly/ztRAo0X. 28 9 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in

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1 (Cohen Decl.) ¶¶ 16, 19.

2

B. People in Congregate Environments—Like the Maricopa County

3

Jails—Are Particularly Vulnerable to COVID-19.

4

Scientists estimate that, under normal circumstances, one person with COVID-19

5 will typically infect between two and three people without social distancing, and about one 6 person if maintaining strong social distancing and quarantining.10 By contrast, scientists

7 estimate that, in confined settings like prisons and cruise ships, one person with COVID-19 8 will infect about 11 people, each of whom will in turn infect up to 11 other people.11 As a 9 result, the Legal Aid Society in New York has reported that the infection rate for COVID-

10 19 at local jails is more than seven times higher than the rate citywide and 87 times higher 11 than the country at large.12

12

The current COVID-19 crisis in Maricopa County tracks this pattern. Maricopa

13 County has reported more than 42,000 confirmed COVID-19 cases as of June 26, 2020.13

14 Close to 750 Maricopa County residents have died from COVID-19.14 But the county-wide

15 emergency comes nowhere close to the crisis within the Maricopa County jails. Indeed, the 16 rate of cases amongst the tested population at the jails is more than three times higher than

17 the rate across the County: whereas county-wide 9.5 percent of those tested for COVID-19

18

19 Correctional and Detention Facilities, supra note 7.

10 Adam J. Kucharski et al., Early dynamics of transmission and control of COVID-19: a

20 mathematical modelling study, The Lancet, Mar. 11, 2020, available at

https://doi.org/10.1016/S1473-3099(20)30144-4.

21 11 Kenji Mizumoto & Gerardo Chowell, Transmission potential of the novel coronavirus

(COVID-19) onboard the Diamond Princess Cruises Ship, 2020, 5 Infectious Disease

22 Modelling 264, Feb. 2, 2020 (evaluating the transmission rate on a cruise ship, and

comparing that infection rate to similarly confined spaces like hospitals, prisons, and

23 churches),

available

at

https://www.sciencedirect.com/science/article/pii/S2468042720300063.

24 12 Coronavirus Update: Rikers Island Rate of Infection 7 Times Higher than Citywide, Legal

Aid Says, CBS New York, Mar. 26, 2020, available at

25 https://newyork.cbslocal.com/2020/03/26/coronavirus-rikers-island/.

13 Data Dashboard: Summary, ARIZONA DEPARTMENT OF HEALTH SERVICES (accessed

26 June 26,

2020),

https://www.azdhs.gov/preparedness/epidemiology-disease-

control/infectious-disease-epidemiology/covid-19/dashboards/index.php.

27 14 Data Dashboard: COVID-19 Deaths, ARIZONA DEPARTMENT OF HEALTH SERVICES

(accessed June 26, 2020), https://www.azdhs.gov/preparedness/epidemiology-disease-

28 control/infectious-disease-epidemiology/covid-19/dashboards/index.php.

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1 have tested positive,15 28.9 percent of those tested for COVID-19 among the Maricopa

2 County jail population have tested positive as of June 25, 2020.16 Moreover, the number of

3 COVID-19-positive cases at the Maricopa County jails has skyrocketed in the past month.

4 Though the Maricopa County jails have seen a reduction in the incarcerated population, the

5 number of cases nevertheless continues to rise. As of June 25, 565 incarcerated persons at

6 the Maricopa County jails have tested positive—up from just four cases one month prior.17

7 That number does not include the 65 patients awaiting their test results.18 Despite this

8 exponential increase, Defendants have not sufficiently changed their policies or practices

9 to stop the spread of the virus. Ex. 15 (Cohen Decl.) ¶ 36.

10

C. The Maricopa County Jails Have Not Implemented Adequate Measures

to Protect Incarcerated Persons from the Risk of Infection.

11

12

A litany of conditions at the Maricopa County jails place the incarcerated population

13 at a heightened and growing risk of contracting COVID-19, including:

14

Inadequate Testing. Originally, Defendants only provided testing to some

15 “symptomatic patients, at provider discretion.”19 The Maricopa County jails’ Medical

16 Director has now stated that they are testing asymptomatic people who have had contact

17 with COVID-positive people.20 Despite these changes, Defendants’ customs and practices

18 are inadequate by all accounts. First, Defendants’ new policy has not been implemented

19 consistently, as some persons were not tested even after being housed in a pod that was

20 quarantined due to direct contact with a COVID-19-positive person. Ex. 2 (Boykins Decl.)

21

15 Data Dashboard: Deaths, ARIZONA DEPARTMENT OF HEALTH SERVICES (accessed

22 June 26,

2020),

https://www.azdhs.gov/preparedness/epidemiology-disease-

control/infectious-disease-epidemiology/covid-19/dashboards/index.php; Ex. 18 (MCSO 23 Testing Data).

16 COVID-19 in County Jails, MARICOPA COUNTY (accessed June 28, 2020), 24 https://www.maricopa.gov/5574/COVID-19-in-County-Jails.

17 See id.; see also Ex. 18 (MCSO Testing Data). 25 18 Id.

19 Ex. 17 SOP J-B-02-23, Management Plan for Novel/Coronavirus Disease (COVID-19),

26 C(f)(iii).

20 Lauren Castle, ACLU demands Maricopa County test all inmates for COVID-19, release 27 results, AZ CENTRAL (June 5, 2020), https://cutt.ly/SuxGROn; see also Press Statement of

Grant Phillips (June 5, 2020), https://www.youtube.com/watch?v=GzogmTMA8mA 28 (containing video clip of statement made by Dr. Phillips).

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1 ¶¶ 7-11; Ex. 9 (Player Decl.) ¶ 4. Defendants are also not testing people in some housing

2 units that went to recreation with other housing units in which someone appears to have

3 tested positive for COVID-19. Ex. 2 (Boykins Decl.) ¶ 12; Ex. 8 (Perez Decl.) ¶ 9.

4 Moreover, other asymptomatic or pre-symptomatic incarcerated persons who unknowingly

5 had contact with a COVID-19-positive person can carry the virus but would not be

6 accounted for in Defendants’ testing regime. Ex. 15 (Cohen Decl.) ¶¶ 67. Thus, absent

7 universal testing, Defendants cannot identify those who are infected and timely initiate

8 isolation, medical monitoring, and treatment for them. Id. Defendants’ limited testing is

9 also problematic in light of Defendants’ failure to consider the full scope of COVID-19

10 symptoms. Id. ¶ 72. Incarcerated persons have informed staff they were suffering from

11 known symptoms of COVID-19, but were not tested, is an outcome of Defendants’ limited

12 criteria. Ex. 2 (Boykins Decl.) ¶ 6; Ex. 5 (Fenty Decl.) ¶¶ 5-6; Ex. 7 (Ochoa Decl.) ¶ 5;

13 Ex. 8 (Perez Decl.) ¶ 5; Ex. 10 (Reason Decl.) ¶¶ 5-6; see also Ex. 4 (Dupont Decl.) ¶ 4.

14 There are other reports of exposure to incarcerated persons with COVID-19 symptoms or

15 known cases of COVID-19, and yet likewise not being tested. Ex. 2 (Boykins Decl.) ¶ 6;

16 Ex. 8 (Perez Decl.) ¶¶ 5, 9; Ex. 14 (Tequida Decl.) ¶ 8; Ex. 11 (Scroggins Decl.) ¶ 6; Ex. 12

17 (Stepter Decl.) ¶ 7. Finally, the failure to conduct universal testing is problematic because

18 the jails’ symptoms-based testing program fails to take into account that incarcerated people

19 are deterred from coming forward and reporting symptoms due to fear of being placed into

20 medical isolation, which at the Maricopa County jails is a punitive setting akin to

21 disciplinary segregation. Ex. 15 (Cohen Decl.) ¶ 112.

22

No Protections for the Medically Vulnerable. Despite clear guidance from public

23 health authorities about the risks of COVID-19 for the medically vulnerable, see Ex. 15

24 (Cohen Decl.) ¶ 82, most of whom are people with disabilities under the ADA and

25 Section 504, Defendants have taken no specific steps targeting the medically vulnerable

26 population to reduce the potential for their infection. Ex. 15 (Cohen Decl.) ¶ 86. Defendants

27 continue to cohort people who are medically vulnerable with persons who were in direct

28 contact with COVID-19-positive persons and with insufficient measures to abate the risk of

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1 transmission. Ex. 6 (Lewis Decl.) ¶¶ 4-6, 15-20; Ex. 10 (Reason Decl.) ¶¶ 7, 15; Ex. 5

2 (Fenty Decl.) ¶¶ 17-18. Medically vulnerable persons are also housed in the same units and

3 under the same conditions as non-medically vulnerable people, including the same lack of

4 social distancing, proper cleaning and hygiene, and PPE. Ex. 6 (Lewis Decl.) ¶¶ 6-14; Ex. 5

5 (Fenty Decl.) ¶¶ 8-14; Ex. 10 (Reason Decl.) ¶¶ 6-12, 17; Ex. 12 (Stepter Decl.) ¶¶ 8-17;

6 Ex. 14 (Tequida Decl.) ¶¶ 11-23; see also Ex. 7 (Ochoa Decl.) ¶ 6. Medically vulnerable

7 persons have also been denied testing notwithstanding displaying symptoms consistent with

8 COVID-19. Ex. 5 (Fenty Decl.) ¶¶ 5-7; Ex. 10 (Reason Decl.) ¶ 4. Further, Defendants have

9 not regularly screened medically vulnerable persons for symptoms, even after exposure to

10 someone with COVID-19. Ex. 14 (Tequida Decl.) ¶¶ 7-8. And even when housed in the

11 infirmary, medically vulnerable persons endure conditions similar to those constitutionally

12 inadequate conditions in the general population units, including a lack of social distancing,

13 lack of sufficient hygiene and cleaning supplies, insufficient PPE for incarcerated people,

14 and inconsistency in detention officers wearing masks. Crough Decl. ¶¶ 11-17.

15

No Social Distancing. Even with a recent reduction of the incarcerated population,

16 social distancing has not been noticeably implemented in the Maricopa County jails. Ex. 2

17 (Boykins Decl.) ¶ 14; Ex. 3 (Crough Decl.) ¶¶ 13-14; Ex. 5 (Fenty Decl.) ¶ 8; Ex. 7 (Ochoa

18 Decl.) ¶¶ 7-8. At each jail, anywhere between 40-100 persons are housed in pods or open

19 dormitories. Ex. 5 (Fenty Decl.) ¶ 8; Ex. 1 (Avenenti Decl.) ¶ 12; Ex. 7 (Ochoa Decl.) ¶¶ 7-

20 8; Ex. 8 (Perez Decl.) ¶ 16; Ex. 11 (Scroggins Decl.) ¶¶ 7-8; Ex. 12 (Stepter Decl.) ¶ 8;

21 Ex. 14 (Tequida Decl.) ¶ 11. Some incarcerated persons continue to sleep in units that are

22 nearly full. See Ex. 2 (Boykins Decl.) ¶ 16; Ex. 5 (Fenty Decl.) ¶ 8; Ex. 8 (Perez Decl.) ¶ 21;

23 Ex. 12 (Stepter Decl.) ¶ 8; Ex. 13 (Suggs Decl.) ¶ 12. The pods at each jail house individuals

24 in close quarters, well under six feet apart, with two to three persons in each cell or in large

25 open dorms with dozens of others on beds inches apart. Ex. 2 (Boykins Decl.) ¶ 15; Ex. 9

26 (Player Decl.) ¶ 10; Ex. 6 (Lewis Decl.) ¶ 8; Ex. 4 (Dupont Decl.) ¶ 7; Ex. 5 (Fenty Decl.)

27 ¶ 8; Ex. 7 (Ochoa Decl.) ¶ 8; Ex. 8 (Perez Decl.) ¶ 21; Ex. 11 (Scroggins Decl.) ¶ 8; Ex. 12

28 (Stepter Decl.) ¶ 8; Ex. 13 (Suggs Decl.) ¶ 12. Some units are increasingly placed on

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1 lockdown, some for security overrides due to staffing shortages, which means that persons

2 housed there are then stuck in their sleeping area without social distancing. Ex. 12 (Stepter

3 Decl.) ¶ 14; Ex. 13 (Suggs Decl.) ¶ 12; Ex. 8 (Perez Decl.) ¶ 12; Ex. 11 (Scroggins Decl.)

4 ¶ 13. Despite all this, there is no policy for social distancing.

5

Defendants do not operate common areas such as dining rooms and recreational

6 spaces such that persons can practice social distancing. See Ex. 2 (Boykins Decl.) ¶¶ 16, 18;

7 Ex. 9 (Player Decl.) ¶ 8; Ex. 6 (Lewis Decl.) ¶¶ 6, 8; Ex. 4 (Dupont Decl.) ¶ 7; Ex. 5 (Fenty

8 Decl.) ¶¶ 9, 10; Ex. 7 (Ochoa Decl.) ¶¶ 9-12; Ex. 8 (Perez Decl.) ¶¶ 16-18, 20; Ex. 10

9 (Reason Decl.) ¶¶ 7, 9-10; Ex. 11 (Scroggins Decl.) ¶¶ 8-10; Ex. 14 (Tequida Decl.) ¶¶ 14-

10 15; Ex. 13 (Suggs Decl.) ¶¶ 11, 15. Defendants do not stagger mealtimes, so persons

11 frequently stand close together in lines and sit at tables elbow-to-elbow. Ex. 2 (Boykins

12 Decl.) ¶¶ 15, 17; Ex. 9 (Player Decl.) ¶¶ 8, 9; Ex. 6 (Lewis Decl.) ¶ 9; Ex. 4 (Dupont Decl.)

13 ¶¶ 6, 7; Ex. 5 (Fenty Decl.) ¶¶ 9, 11; Ex. 7 (Ochoa Decl.) ¶¶ 9, 12; Ex. 8 (Perez Decl.) ¶¶ 11,

14 17, 20; Ex. 10 (Reason Decl.) ¶¶ 8, 9; Ex. 11 (Scroggins Decl.) ¶ 9; Ex. 12 (Stepter Decl.)

15 ¶ 9; Ex. 14 (Tequida Decl.) ¶¶ 13-15; Ex. 13 (Suggs Decl.) ¶¶ 13-14. Defendants have

16 meals delivered by incarcerated persons who travel from pod to pod, furthering the risk of

17 spreading the virus. Ex. 2 (Boykins Decl.) ¶ 17. In some circumstances, Defendants have

18 incarcerated people take food out of bins themselves with bare hands and return unwanted

19 items to those bins, which results in multiple persons touching the same food. Ex. 2

20 (Boykins Decl.) ¶ 17; Ex. 9 (Player Decl.) ¶ 8; Ex. 7 (Ochoa Decl.) ¶ 9; Ex. 8 (Perez Decl.)

21 ¶ 17; Ex. 11 (Scroggins Decl.) ¶ 9; Ex. 14 (Tequida Decl.) ¶ 14. Defendants keep recreation

22 spaces packed, with multiple units sometimes sharing the facilities at the same time,

23 allowing for quicker transmission of the virus among different housing units. Ex. 2

24 (Boykins Decl.) ¶ 18; Ex. 9 (Player Decl.) ¶ 8; Ex. 4 (Dupont Decl.) ¶ 6; Ex. 6 (Lewis Decl.)

25 ¶ 8; Ex. 5 (Fenty Decl.) ¶ 10; Ex. 8 (Perez Decl.) ¶ 19; Ex. 11 (Scroggins Decl.) ¶ 9; Ex. 12

26 (Stepter Decl.) ¶ 10. When receiving medication, incarcerated persons are required to line

27 up side-by-side in their housing units. Ex. 9 (Player Decl.) ¶ 5; Ex. 1 (Avenenti Decl.) ¶ 20;

28 Ex. 4 (Dupont Decl.) ¶ 6; Ex. 12 (Stepter Decl.) ¶ 12; Ex. 14 (Tequida Decl.) ¶ 13.

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1

Inadequate Sanitization. The Maricopa County jails rely heavily on incarcerated

2 persons to clean facilities. Ex. 2 (Boykins Decl.) ¶ 20; Ex. 9 (Player Decl.) ¶ 11; Ex. 1

3 (Avenenti Decl.) ¶ 18; Ex. 6 (Lewis Decl.) ¶ 11; Ex. 4 (Dupont Decl.) ¶ 8; Ex. 5 (Fenty

4 Decl.) ¶ 13; Ex. 8 (Perez Decl.) ¶ 23; Ex. 10 (Reason Decl.) ¶ 7; Ex. 11 (Scroggins Decl.)

5 ¶ 15; Ex. 12 (Stepter Decl.) ¶ 15; Ex. 14 (Tequida Decl.) ¶ 17; Ex. 13 (Suggs Decl.) ¶ 17.

6 Critically, the post-COVID-19 cleaning routine appears nearly identical to the pre-COVID-

7 19 routine. Ex. 8 (Perez Decl.) ¶ 23; Ex. 14 (Tequida Decl.) ¶ 17; Ex. 7 (Ochoa Decl.) ¶ 13.

8 Jail staff generally do not ensure that cleaning is done at all, let alone that it is done safely

9 and adequately to kill the virus. Ex. 2 (Boykins Decl.) ¶ 21; Ex. 7 (Ochoa Decl.) ¶¶ 11-12;

10 Ex. 8 (Perez Decl.) ¶ 22. Defendants do not normally provide incarcerated persons with

11 gloves or other sufficient protective equipment to conduct such cleaning. Ex. 5 (Fenty

12 Decl.) ¶ 13; Ex. 12 (Stepter Decl.) ¶ 16. Defendants task incarcerated persons with cleaning

13 cells where infected persons or persons quarantined at intake were located, and without any

14 gloves. Ex. 2 (Boykins Decl.) ¶¶ 7-8; Ex. 9 (Player Decl.) ¶ 4; Ex. 1 (Avenenti Decl.) ¶ 5;

15 Ex. 6 (Lewis Decl.) ¶ 10; Ex. 10 (Reason Decl.) ¶ 13. Incarcerated persons share numerous

16 high-touch surfaces, such as telephones, tablets, tables, chairs, and railings, for which the

17 jails have not implemented any system to ensure that they are properly cleaned. Ex. 3

18 (Crough Decl.) ¶ 16; Ex. 5 (Fenty Decl.) ¶¶ 11, 13; Ex. 7 (Ochoa Decl.) ¶¶ 10, 12; Ex. 8

19 (Perez Decl.) ¶¶ 17-19; Ex. 12 (Stepter Decl.) ¶¶ 11, 15. Some persons wrap socks or a

20 personal bathing towel around phones to protect themselves against catching COVID-19.

21 Ex. 2 (Boykins Decl.) ¶ 25; Ex. 13 (Suggs Decl.) ¶ 22; see also Ex. 11 (Scroggins Decl.)

22 ¶ 14.

23

Twice a day, Defendants provide entire housing units one bottle each of watered-

24 down disinfectant and glass cleaner and potentially one other substance to clean the

25 common surfaces and individual cells. Ex. 2 (Boykins Decl.) ¶ 21; Ex. 9 (Player Decl.)

26 ¶ 11; Ex. 6 (Lewis Decl.) ¶ 11; Ex. 5 (Fenty Decl.) ¶ 13; Ex. 8 (Perez Decl.) ¶ 22; Ex. 11

27 (Scroggins Decl.) ¶¶ 14, 15; Ex. 12 (Stepter Decl.) ¶ 15; Ex. 14 (Tequida Decl.) ¶ 18; Ex. 13

28 (Suggs Decl.) ¶ 18. The supplies often run out, and the staff oftentimes refuse additional

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1 supplies. Ex. 2 (Boykins Decl.) ¶ 21; Ex. 9 (Player Decl.) ¶ 11; Ex. 1 (Avenenti Decl.) ¶ 18;

2 Ex. 6 (Lewis Decl.) ¶ 11; Ex. 4 (Dupont Decl.) ¶ 8; Ex. 5 (Fenty Decl.) ¶ 13; Ex. 8 (Perez

3 Decl.) ¶ 22; Ex. 11 (Scroggins Decl.) ¶ 14; Ex. 12 (Stepter Decl.) ¶ 15; Ex. 14 (Tequida

4 Decl.) ¶ 18; Ex. 13 (Suggs Decl.) ¶ 18. Defendants generally do not provide individuals

5 with access to personal hygiene products such as paper towels or hand sanitizer. Ex. 2

6 (Boykins Decl.) ¶ 23; Ex. 7 (Ochoa Decl.) ¶¶ 12, 14-15. Having no paper towels,

7 incarcerated persons are forced to use bathing towels Defendants provide only once per

8 week to wipe down surfaces and dry their hands. Ex. 2 (Boykins Decl.) ¶ 23; Ex. 9 (Player

9 Decl.) ¶ 11; Ex. 6 (Lewis Decl.) ¶¶ 11-12; Ex. 7 (Ochoa Decl.) ¶¶ 13-15; Ex. 8 (Perez Decl.)

10 ¶¶ 23-24; Ex. 11 (Scroggins Decl.) ¶ 15; Ex. 14 (Tequida Decl.) ¶¶ 18-20; Ex. 13 (Suggs

11 Decl.) ¶ 20. No incarcerated person is required to wear a mask, but incarcerated persons

12 who do want masks generally only get one or perhaps two disposable paper masks over a

13 period of months, even if this mask is subsequently lost, soiled, or broken and even if the

14 person is housed in a unit that has been quarantined due to exposure to COVID-19. Ex. 2

15 (Boykins Decl.) ¶ 24; Ex. 9 (Player Decl.) ¶ 12; Ex. 1 (Avenenti Decl.) ¶ 19; Ex. 6 (Lewis

16 Decl.) ¶ 13; Ex. 5 (Fenty Decl.) ¶ 14; Ex. 7 (Ochoa Decl.) ¶ 16; Ex. 8 (Perez Decl.) ¶ 25;

17 Ex. 11 (Scroggins Decl.) ¶ 17; Ex. 12 (Stepter Decl.) ¶ 16; Ex. 14 (Tequida Decl.) ¶ 22;

18 Ex. 13 (Suggs Decl.) ¶ 21.

19

Inadequate Quarantining and Isolation. Where a person is symptomatic (at least

20 with the limited subset of symptoms for which Defendants screen), Defendants’ policy is

21 to remove such people from their housing units, test them for COVID-19, and place them

22 in isolation while they await test results.21 For those asymptomatic people who are in the

23 housing unit where the COVID-19-positive person was housed or who otherwise had close

24 contact with a confirmed COVID-19-positive person, Defendants’ policy is to place the

25 entire housing unit on quarantine status.22 As discussed above, Defendants recently

26

27 21 See Ex. 17 (SOP J-02-023), §§ C(b), (g)(i). 22 COVID-19 in County Jails, MARICOPA COUNTY (accessed June 28, 2020),
28 https://www.maricopa.gov/5574/COVID-19-in-County-Jails.

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1 announced a policy to test asymptomatic people who were exposed to or housed with people

2 with COVID-19, which has been implemented inconsistently. See supra at 6. Defendants

3 have not taken other protective measures to ensure that infected people do not transmit the

4 virus to uninfected people with whom they are quarantined together, which are necessary

5 because COVID-19 testing has a significant false negative rate as high as 29%. Ex. 15

6 (Cohen Decl.) ¶ 77. Medical staff generally do not visit quarantined pods to check people

7 for symptoms indicative of COVID-19 in order to remove symptomatic people from the

8 unit, and on the rare occasions they do visit, fail to take basic precautions to limit the spread

9 of the virus such as changing gloves between each person they examine and sterilizing oral

10 thermometers between uses. Ex. 2 (Boykins Decl.) ¶¶ 8-9; Ex. 9 (Player Decl.) ¶ 5. There

11 is no social distancing in the quarantined units. Ex. 2 (Boykins Decl.) ¶ 28; Ex. 9 (Player

12 Decl.) ¶¶ 7, 16. There are no specific cleaning procedures or PPE for quarantined units, and

13 Defendants do not take steps to ensure that cells or bed spaces are cleaned—let alone

14 properly or safely—after removal of people with confirmed or suspected COVID-19. Ex. 2

15 (Boykins Decl.) ¶¶ 7-8, 19-24; Ex. 9 (Player Decl.) ¶¶ 12-13. Finally, some quarantine units

16 are directly across from non-quarantined units, allowing for the virus to potentially transmit

17 through air flowing freely between the units. Ex. 4 (Dupont Decl.) ¶¶ 3-4; Ex. 14 (Tequida

18 Decl.) ¶ 11; see also Ex. 5 (Fenty Decl.) ¶ 19.

19

Defendants also have created and maintain punitive conditions in the units that house

20 those who are removed from their general population housing due to suspected or known

21 COVID-19 infection. These conditions deter those with symptoms of COVID-19 from

22 reporting those symptoms to staff out of fear that they will then end up in housing akin to

23 disciplinary segregation (called “the hole”) without proper medical care. Ex. 2 (Boykins

24 Decl.) ¶ 5; Ex. 6 (Lewis Decl.) ¶ 4; Ex. 13 (Suggs Decl.) ¶¶ 6-9. As a result, symptomatic

25 people will potentially remain in general population units, thus risking the further spread of

26 the disease. Ex. 15 (Cohen Decl.) ¶ 116. For people who test positive, the only difference

27 between these punitive isolation units and punitive segregation units at the jails is that,

28 unlike the hole, COVID-19-positive persons were placed in cells together. Ex. 6 (Lewis

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1 Decl.) ¶ 19. Defendants house people who have tested positive for COVID-19 in filthy,

2 uncleaned cells in which they are locked 24 hours per day, except for minimal shower time

3 (one hour every three days for one person and once in a week for another) and for legal

4 video visits. Id.; Ex. 1 (Avenenti Decl.) ¶ 14. The staff have taken all of their property, and

5 require persons to wear the same clothes, despite being sick with the virus. Ex. 6 (Lewis

6 Decl.) ¶ 19; Ex. 1 (Avenenti Decl.) ¶ 14. Access to commissary to supplement the two

7 meals served per day is denied. Ex. 6 (Lewis Decl.) ¶ 19. Incarcerated persons who are

8 awaiting test results are housed in isolation but encounter otherwise similar conditions while

9 awaiting the results of their COVID test. Ex. 13 (Suggs Decl.) ¶¶ 6-7. This stands in contrast

10 to Defendants’ written policy for housing people who test positive or who are in medical

11 observation while awaiting test results, which states that they will be housed individually,

12 that they will have ample cleaning supplies, that cells will be cleaned before use (by

13 incarcerated people as they are leaving medical isolation), that the incarcerated persons’

14 property in their possession will be cleaned on their departure, and that they will be provided

15 with clean clothing when departing isolation. Ex. 21 (4/7/2020 Email re Medical

16 Observation).

17

The medical care for prisoners who test positive for COVID-19 is also inadequate—

18 staff who are not necessarily medically trained visit once per day for a symptom and

19 temperature check, normally do not conduct pulse oximeter testing necessary to monitor the

20 impact that COVID-19 is having on oxygen intake, and when medicine is requested, it can

21 take up to three and a half days to receive even the most basic of medications like Tylenol.

22 Ex. 15 (Cohen Decl.) ¶ 113; Ex. 1 (Avenenti Decl.) ¶¶ 8-13; Ex. 6 (Lewis Decl.) ¶¶ 19, 20,

23 22. But all patients with known or suspected COVID-19 diagnoses require close clinical

24 monitoring of their condition twice daily to assess whether they are clinically deteriorating

25 and require more assertive treatment. Ex. 15 (Cohen Decl.) ¶¶ 16, 111. Defendants are also

26 failing to provide sufficient medical monitoring to the medically vulnerable who have

27 contracted COVID-19, notwithstanding that the medically vulnerable face higher

28 hospitalization and death rates and that adequate medical monitoring is particularly critical

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1 for this population. Ex. 15 (Cohen Decl.) ¶ 88; Ex. 6 (Lewis Decl.) ¶ 20.23

2

Hazardous Intake Processes. Defendants currently process 100-150 new

3 individuals every day.24 This is in stark contrast to detention facilities—like those at issue

4 in Urdaneta—that have discontinued accepting new detainees. Ex. 20 (Urdaneta Opp.) at

5 8. According to Defendants’ policy, individuals are only isolated and tested for COVID-19

6 during booking if they exhibit certain symptoms or report direct contact with someone

7 COVID-positive. See Ex. 17 (SOP J-02-023). Non-tested individuals then go through

8 booking procedures and a court appearance, and are held throughout that time in various

9 holding “tanks” with between 10-20 people in each with no ability to socially distance.

10 Ex. 8 (Perez Decl.) ¶¶ 30-31. Masks are the exception, not the rule. Id. People who are not

11 tested are then placed directly into a housing pod and are then supposed to begin a 14-day

12 cohorting period once the pod reaches a certain capacity. Ex. 19 (Ltr. from Penzone to

13 Keenan). But in practice, that has not happened consistently and some new intakes who

14 have not gone through the 14-day cohorting process are placed directly into the general

15 population. Ex. 4 (Dupont Decl.) ¶ 15; Ex. 7 (Ochoa Decl.) ¶ 7; Ex. 11 (Scroggins Decl.)

16 ¶ 7; Ex. 1 (Avenenti Decl.) ¶ 6. Several people incarcerated in their general population dorm

17 have been rebooked on new charges and taken to the 4th Avenue booking facility, where

18 they spent about 24 hours in a holding cell with new intakes who were recently arrested,

19 before they were returned back to their original dorm. Ex. 4 (Dupont Decl.) ¶ 15; Ex. 7

20 (Ochoa Decl.) ¶ 7. Even for those who are placed into the 14-day intake cohort, the process

21 is not sufficient to stop the spread of the virus. Ex. 15 (Cohen Decl.) ¶¶ 92-93. As a result

22 of Defendants’ failure to test all persons at intake, they do not identify pre-symptomatic or

23 asymptomatic people who may have COVID-19 and who can then unknowingly infect other

24
25 23 Defendants have also failed to waive fees associated with seeking care or diagnosis for COVID-19 symptoms. Suggs Decl. ¶ 10. Especially in light of the failure to provide
26 adequate medical care for persons who become infected, failure to waive medical fees can deter people from reporting symptoms and decrease the ability of the jails to identify
27 people who have been infected with COVID-19. Fenty Decl. ¶ 5; Reason Decl. ¶ 5. 24 Lauren Castle, Maricopa County considers mass testing in jails after confirmed COVID-
28 19 cases spike, AZ CENTRAL (June 10, 2020), https://cutt.ly/luxS6Gk.

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1 incarcerated persons or staff. Id. By placing untested new intakes in housing cohorts,

2 Defendants combine people who may be asymptomatic carriers of COVID-19 with

3 individuals who may not yet be infected, thereby furthering the risk. Id. Pre-symptomatic

4 or asymptomatic people with COVID-19 may infect others at any point during that 14-day

5 period, and people who are infected during the intake cohort may remain asymptomatic yet

6 infectious at the time that they are placed into the general population. Id. Moreover, persons

7 in the 14-day intake cohort are sometimes in contact with people from units that have been

8 quarantined due to exposure to COVID-19, wholly undermining any benefit from the 14-

9 day cohorting. Ex. 9 (Player Decl.) ¶ 17. Indeed, this is in direct contravention to CDC

10 guidance, which states to “avoid mixing individuals quarantined due to exposure to a

11 COVID-19 case with individuals undergoing routine intake quarantine.”25

12

No Information. Defendants have also failed to provide incarcerated persons with

13 basic information about COVID-19. Ex. 2 (Boykins Decl.) ¶ 27; Ex. 9 (Player Decl.) ¶ 14;

14 Ex. 1 (Avenenti Decl.) ¶ 4; Ex. 5 (Fenty Decl.) ¶ 20; Ex. 3 (Crough Decl.) ¶ 25; Ex. 7

15 (Ochoa Decl.) ¶ 18; Ex. 8 (Perez Decl.) ¶¶ 14, 27; Ex. 10 (Reason Decl.) ¶ 18; Ex. 11

16 (Scroggins Decl.) ¶ 19; Ex. 12 (Stepter Decl.) ¶ 18; Ex. 14 (Tequida Decl.) ¶ 24.

17 Incarcerated persons have not been provided with information on what symptoms to look

18 for or instructions on social distancing. Id.26 Defendants have not taken steps to ensure that

19 incarcerated persons with psychiatric or intellectual disabilities are educated about the

20 disease and able to take the steps necessary to protect themselves. Cohen Decl. ¶¶ 4 n.3;

21 133. Aside from basic hand washing and instructions on how to preserve single use, paper

22 masks, individuals have learned about the coronavirus through their attorneys, families, or

23 persons other than Defendants’ employees. Ex. 2 (Boykins Decl.) ¶ 27; Ex. 9 (Player Decl.)

24 ¶ 14; Ex. 1 (Avenenti Decl.) ¶ 4; Ex. 5 (Fenty Decl.) ¶ 20; Ex. 3 (Crough Decl.) ¶ 25; Ex. 7

25
26 25 CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, supra note 7, at 19.
27 26 Since the filing of this lawsuit, Defendants appear to have now provided information on tablets distributed to some incarcerated people on the symptoms of COVID-19. Suggs Decl.
28 ¶ 24. There is still no information provided regarding the need for social distancing. Id.

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1 (Ochoa Decl.) ¶ 18; Ex. 8 (Perez Decl.) ¶¶ 14, 27; Ex. 10 (Reason Decl.) ¶ 18; Ex. 11

2 (Scroggins Decl.) ¶ 19; Ex. 12 (Stepter Decl.) ¶ 18; Ex. 14 (Tequida Decl.) ¶ 24. This is

3 despite the fact that Defendants publicly claim to have posted information on COVID-19 in

4 the jails.

5

Lack of Testing or Screening of Staff. Finally, staff who work at the Maricopa

6 County jails, who travel to and from their homes and communities for work, are at risk of

7 contracting the virus and further transmitting it to people incarcerated in the jails, to fellow

8 staff, and to persons in their communities. Ex. 15 (Cohen Decl.) ¶ 73. There is no policy to

9 test all staff or to even check staff for symptoms upon entering the facility. Instead, staff

10 continue to be “instructed to stay home if they are sick with fever, cough, or difficulty

11 breathing and contact their healthcare provider.”27 Staff who are unknowingly infected but

12 are not symptomatic will not be identified and can spread the virus. Ex. 15 (Cohen Decl.)

13 ¶ 73. This is especially problematic as staff at the jails do not consistently wear masks or

14 wear their masks below their chin—defeating the purpose of a mask in the first instance.

15 Ex. 2 (Boykins Decl.) ¶ 26; Ex. 9 (Player Decl.) ¶ 13; Ex. 1 (Avenenti Decl.) ¶ 20; Ex. 6

16 (Lewis Decl.) ¶ 14; Ex. 4 (Dupont Decl.) ¶ 11; Ex. 7 (Ochoa Decl.) ¶ 17; Ex. 8 (Perez Decl.)

17 ¶ 26; Ex. 11 (Scroggins Decl.) ¶ 18; Ex. 13 (Suggs Decl.) ¶ 23.28 They also do not change

18 gloves between inspecting individual incarcerated persons. Ex. 9 (Player Decl.) ¶ 13; Ex. 1

19 (Avenenti Decl.) ¶ 20; Ex. 5 (Fenty Decl.) ¶ 10; Ex. 7 (Ochoa Decl.) ¶ 17; Ex. 8 (Perez

20 Decl.) ¶ 26; Ex. 10 (Reason Decl.) ¶ 16; Ex. 11 (Scroggins Decl.) ¶¶ 11, 18; Ex. 14

21 (Tequida Decl.) ¶ 23.

22 II. ARGUMENT

23

A movant is entitled to a temporary restraining order when (1) they are likely to

24 suffer irreparable harm; (2) they are likely to succeed on the merits; (3) the balance of

25 equities favors them; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def.

26 27 COVID-19 FAQ, MARICOPA COUNTY SHERIFF’S OFFICE (June 15, 2020),
27 https://www.mcso.org/Multimedia/PressRelease/FAQ%20Covid-19-6.15.20.pdf. 28 Defendants appear to have altered their policy to require staff to wear masks, but there is
28 no evidence that this policy has been enforced. Cohen Decl. ¶ 121.

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1 Council, Inc., 555 U.S. 7, 20 (2008).29 The Ninth Circuit applies a sliding scale approach,

2 under which a stronger showing of one element may offset a weaker showing of another.

3 See Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012). Plaintiffs plainly meet each

4 element.

5

This Court has already granted preliminary relief in analogous circumstances. In

6 Urdaneta, this Court held that people detained at a federal immigration detention facility

7 with similar conditions to those present at the Maricopa County jails established a likelihood

8 of success on the merits and irreparable harm for the same reasons that Plaintiffs seek relief

9 here: that the facility “fostered conditions that pose an objectively unreasonable risk of

10 transmission of COVID-19 and a resulting substantial risk of serious harm to Petitioner’s

11 health and ultimate safety.” Urdaneta, at *12. Importantly, the Court made this

12 determination at a time in which the detention facilities had no new cases. Ex. 20 (Urdaneta

13 Opp.). Indeed, one facility had no cases at all. Id. Here, in contrast, cases are rapidly

14 increasing. Thus, judicial action is especially warranted and needed.

15

Because Plaintiffs meet the requirements for a temporary restraining order, Plaintiffs

16 seek the same remedy this Court has already required, i.e. “constitutionally adequate

17 conditions”30 for all class members, including social distancing measures and improved

18 cleaning practices. Additionally, Plaintiffs seek the limited release of individuals in the

19 Pretrial Medically Vulnerable and Disability Subclasses who are in custody solely because

20 they cannot afford bail. Plaintiffs further seek a process by which to consider for release or

21 enlargement other persons who are medically vulnerable or disabled, as detailed in the

22 proposed Order.

23

A. Absent Relief, Plaintiffs are Near Certain to Suffer Irreparable Harm.

24

The Ninth Circuit recently recognized that dangerous conditions of detention

25

26 29 Though Winter sets forth the standard for a preliminary injunction, the legal standard for issuing a temporary restraining order is the same. Doe v. McAleenan, 415 F. Supp. 3d 971,
27 976 (S.D. Cal. 2019) (“The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction.”).
28 30 Urdaneta, at *12.

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1 constitute irreparable harm supporting injunctive relief. Padilla v. U.S. Immigration &

2 Customs Enforcement, 953 F.3d 1134, 1147 (9th Cir. 2020).

3

All detained persons at the Maricopa County jails—and especially the Medically

4 Vulnerable and Disability Subclass members—face a heightened risk of serious injury or

5 death due to COVID-19. Absent immediate steps, the continuing spread of COVID-19

6 throughout the facility is virtually inevitable, and subclass members are likely to experience

7 serious injury or death. Given these grave risks, this factor weighs heavily in favor of

8 injunctive relief.

9

B. Plaintiffs Have a Substantial Likelihood of Success on the Merits Under

42 U.S.C. Section 1983.

10

11

To establish a likelihood of success on the merits, “the moving party must

12 demonstrate a fair chance of success on the merits, or questions serious enough to require

13 litigation.” Guzman v. Shewry, 552 F.3d 941, 948 (9th Cir. 2009) (citations omitted). Here,

14 Plaintiffs are likely to prevail on their claims under § 1983 and have certainly raised

15 questions serious enough to require further litigation.

16

Defendants have failed to “take reasonable measures to guarantee the safety of the

17 inmates.” See Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). Defendants are liable for

18 depriving Plaintiffs of their constitutional right to adequate treatment and safety, having a

19 policy, custom, or practice that is the “moving force” behind a constitutional violation,

20 endorsing unconstitutional conduct, and failing to adequately supervise employees who

21 commit constitutional violations. See City of St. Louis v. Praprotnik, 485 U.S. 112, 139-40

22 (1988); Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 957 (9th Cir. 2008); Gibson

23 v. County of Washoe, 290 F.3d 1175, 1186 (9th Cir. 2002); Starr v. Baca, 652 F.3d 1202,

24 1206-08 (9th Cir. 2011).

25

1. Defendants’ Unconstitutional Punishment of Pretrial Detainees

Violates Due Process Rights.

26

27

The Fourteenth Amendment prohibits punishment of detained persons prior to “a

28 formal adjudication of guilt in accordance with due process of law.” Bell v. Wolfish, 441

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1 U.S. 520, 535 n.16 (1979). Thus, the government violates the rights of a person incarcerated

2 pretrial if the conditions of confinement amount to punishment. See Doe v. Kelly, 878 F.3d

3 710, 720 (9th Cir. 2017).

4

A punitive condition exists “(1) where the challenged restrictions are expressly

5 intended to punish, or (2) where the challenged restrictions serve an alternative, non-

6 punitive purpose but are nonetheless excessive in relation to the alternative purpose, or are

7 employed to achieve objectives that could be accomplished in so many alternative and less

8 harsh methods.” Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004) (citations and quotation

9 marks omitted); Kelly, 878 F.3d at 720.

10

Given the rampant spread of COVID-19 cases at the Maricopa County jails, and

11 Defendants’ failure to implement adequate protective measures, further transmission of the

12 virus is inevitable. This poses an imminent threat to the Medically Vulnerable and Disability

13 Subclass members, as well as to all detained persons at the Maricopa County jails, facility

14 employees, and members of the surrounding community. The consequences of further

15 spread of COVID-19 are dire; once contracted, there is no known treatment or cure, and the

16 risks of serious illness or injury are substantial. Ex. 15 (Cohen Decl.) ¶ 16. Staff members

17 enter the jails every day, risk exposure, and then take that exposure back to their families

18 and communities when they leave the jails. The relief requested herein lays out an available

19 alternative to confinement under the current conditions that offers a meaningful way to

20 prevent death and mitigate the proliferation of the virus among those in custody at the

21 Maricopa County jails, and ultimately to the community at large. Thus, the current

22 conditions are unconstitutional and, in some instances, require release.

23

Indeed, one purpose of pretrial confinement is to ensure a defendant’s presence for

24 trial and the security and order of its detention facilities, as well as public safety. Bell, 441

25 U.S. at 540. Those purposes are not served if a pretrial detainee is rendered incapable of

26 appearing at trial due to serious illness, hospitalization, or death from COVID-19, or an

27 infectious disease is allowed to spread, endangering detained people and staff and making

28 that facility more hazardous and difficult to manage.

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1

The imminent danger posed by COVID-19 vastly outweighs any government interest

2 in maintaining the current conditions. The government has no interest in operating facilities

3 that violate public health guidance and place detainees in harm’s way. Moreover, for those

4 persons to be released, they have locations where they can remain and adhere to guidelines

5 for self-quarantine, further undercutting any interest in confinement. The harsh conditions

6 and viable alternatives prove that the Maricopa County jails are punishing individuals prior

7 to an adjudication of guilt in violation of the Fourteenth Amendment.

8

2. Defendants’ Deliberate Indifference to the Risks of COVID-19 Also

9

Violates the Right to Constitutional Conditions of Confinement.

10

The Constitution imposes an affirmative duty on the government to “provide humane

11 conditions of confinement,” including by providing for incarcerated persons’ reasonable

12 safety and by addressing their serious medical needs. Farmer v. Brennan, 511 U.S. 825,

13 828, 832-33 (1994); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (requiring corrections

14 officials to address prisoners’ serious medical needs). The government violates this

15 obligation when it takes a person into its custody but “fails to provide . . . medical care, and

16 reasonable safety.” DeShaney v. Winnebago Cty. Dep’t. of Soc. Servs., 489 U.S. 189, 199-

17 200 (1989). The government may not act with “deliberate indifference” to a substantial risk

18 of serious harm. Farmer, 511 U.S. at 828.

19

The Pretrial Class’s claims are governed by the Fourteenth Amendment, whereas the

20 Post-Conviction Class’s claims are governed by the Eighth Amendment.31 The Fourteenth

21 Amendment’s “objective standard” is violated when: “(i) the defendant made an intentional

22 decision with respect to the conditions under which the plaintiff was confined; (ii) those

23
31 A number of circuits have held that that the due process clause applies to individuals who 24 have been convicted and not yet sentenced in addition to pretrial detained persons. See, e.g.,
Lewis v. Downey, 581 F.3d 467, 474 (7th Cir. 2009). The Supreme Court has further 25 suggested that a “formal adjudication” includes both conviction and sentence. Graham v.
Connor, 490 U.S. 386, 392 n.6 (1986) (“Eighth Amendment[] protections d[o] not attach 26 until after conviction and sentence.”). The Ninth Circuit has addressed this issue only in the
context of the standard for determining a due process liberty interest in being free from 27 segregated housing, see Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000). It is thus an
open question whether the objective deliberate indifference standard described in Gordon, 28 888 F.3d at 1125, also protects those convicted but not yet sentenced to incarceration.

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1 conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant

2 did not take reasonable available measures to abate that risk, even though a reasonable

3 official in the circumstances would have appreciated the high degree of risk involved—

4 making the consequences of the defendant’s conduct obvious; and (iv) by not taking such

5 measures, the defendant caused the plaintiff’s injuries.” Gordon v. Cty. of Orange, 888 F.3d

6 1118, 1125 (9th Cir. 2018), cert. denied, 139 S. Ct. 794 (2019). This is “akin to reckless

7 disregard” as the standard is “more than negligence but less than subjective intent.” Id. at

8 1125.

9

Every element is satisfied here. First, Defendants have “made an intentional decision

10 with respect to the conditions under which” Plaintiffs are confined. See id. at 1125.

11 Defendants have confined Plaintiffs to the jails while they either await trial or serve their

12 terms of incarceration. The conditions of confinement at the jails—including inadequate

13 social distancing, disinfecting, and PPE—have resulted from Defendants’ deliberate

14 decisions. Indeed, as this Court has already ruled, when detention centers do not “implement

15 responsive measures specific to high-risk detainees[,] . . . despite knowledge of the acute

16 risks posed to them,” then they “have made an intentional decision.” Urdaneta, at *10.

17

Second, Defendants also have put Plaintiffs at “substantial risk of suffering serious

18 harm.” See Gordon, 888 F.3d at 1125. Though the risks and spread of COVID-19 are well

19 known, the record here establishes that Plaintiffs face heightened and unreasonable

20 exposure to these serious—and often deadly—risks at the jails. In this pandemic, few places

21 are more dangerous than a jail. Indeed, Dr. Cohen confirms that congregate settings like the

22 Maricopa County jails are a breeding zone for the spread of COVID-19. Ex. 15 (Cohen

23 Decl.) ¶ 9. That is especially true because of the lack of social distancing and other

24 protective measures coupled with the inadequate testing procedures at the jails. Id. And it

25 is especially true for persons who are medically vulnerable and disabled. Ex. 15 (Cohen

26 Decl.) ¶ 4. But this Court need not take Dr. Cohen’s word for it. The number of cases

27 alone—skyrocketing at a rate of over 14,000 percent over the past month—establishes that

28 the spread of COVID-19 across the incarcerated population has already begun and has

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1 placed Plaintiffs at substantial risk of suffering serious harm.

2

This Court has already recognized the risk of harm associated at other detention

3 centers in Arizona, especially for at-risk detainees:

4

Absent specific measures which safeguard high-risk detainees, or other measures which reasonably prevent and manage detainee exposure to COVID-19, the

5

unmitigated risk of transmission in detention facilities yields a substantial risk of severe illness or death to high-risk detainees. Because reasonable measures have not

6

been implemented in LPCC to limit the risk of Petitioner’s exposure . . . and the parties do not dispute that Petitioner has a medical condition which places him at

7

high-risk of severe illness or death, the conditions under which Petitioner is detained poses a substantial risk of serious harm to his health and safety.

8 Urdaneta, at *10.

9

Third, Defendants have not “take[n] reasonable available measures to abate risk[s],

10 even though a reasonable official in the circumstances would have appreciated the high

11 degree of risk involved—making the consequences of [Defendants’] conduct obvious.” See

12 Gordon, 888 F.3d at 1125. Even where Defendants take “some action” “to prevent and

13 mitigate the spread of COVID-19,” when “these actions [do] not include[] reasonable,

14 necessary, and available measures to abate the risk of harm,” they are objectively

15 unreasonable. See Urdaneta, at *10; see also Gutierrez-Lopez v. Figueroa, 2020 WL

16 2781722, at *9 (D. Ariz. May 27, 2020) (“While Respondents have taken some action in

17 EDC to prevent and mitigate the spread of COVID-19, . . . these actions have not included

18 reasonable, necessary, and available measures to abate the risk of harm to Petitioner and

19 other high-risk detainees.”).

20

While Defendants have implemented some policies and practices, their efforts have

21 been insufficient in light of the obvious risks posed by COVID-19 to those incarcerated.

22 And despite publicly acknowledging the importance of policies to protect those in their

23 custody, Defendants have not implemented public-health experts’ recommended

24 measures—measures that are available to them—to abate the risks of COVID-19. For

25 example, Defendants have not implemented social distancing or universal testing, both

26 extremely effective and reasonable ways to abate COVID-19. Defendants also have not

27 provided Plaintiffs sufficient cleaning supplies or taken steps to ensure that cleaning high

28

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1 touch surfaces is in fact being conducted. Defendants have failed to provide sufficient PPE

2 to Plaintiffs and have failed to ensure that staff are properly using PPE. Defendants have

3 engaged in haphazard quarantine and intake cohorting procedures. Critically, despite clear

4 proof that their policies have failed to curb the spread of the COVID-19 across the jails,

5 Defendants have nevertheless maintained much of their ineffective policies. Ex. 15 (Cohen

6 Decl.) ¶ 36. Each of these actions and omissions can hardly be described as reasonable.

7

Indeed, Defendants could have instituted a myriad of measures consistent with

8 public health guidelines, including: immediate release of persons identified in this motion;

9 improved intake mechanisms to consistently quarantine upon intake and prevent exposure

10 to people in the general population, testing newly booked people both at the start and at the

11 end of intake quarantine, and conducting regular symptom screening and temperature

12 checks; universal testing of all incarcerated persons and staff; providing for the ability of

13 incarcerated people to maintain six feet distance in booking, housing, recreation, and in

14 routine movements in the jails; providing proper, twice daily medical monitoring of people

15 who are symptomatic and awaiting test results or confirmed to have COVID-19 and housing

16 them in clean, non-punitive conditions; closely monitoring people in quarantined housing

17 units that have been exposed to COVID-19 to identify symptoms and quickly isolating

18 anyone who becomes symptomatic, to the extent group quarantine is necessary; closely

19 monitoring the medical conditions and vital signs of all medically vulnerable incarcerated

20 persons, including daily temperature and symptom screening; providing adequate cleaning

21 supplies (and additional cleaning supplies upon request) and ensuring that shared and

22 individual housing areas are regularly cleaned, particularly high touch areas; providing

23 adequate PPE (and additional PPE upon request) and ensuring that both staff and

24 incarcerated people wear masks; providing hand sanitizer with at least 60% alcohol;

25 increased cleaning of common areas and communal surfaces; housing medially vulnerable

26 persons to reduce their exposure to others and ensuring that staff who supervise them are

27 regularly tested; ensuring that staff regularly change gloves between contact with

28 individuals and sterilize equipment between uses; and offering additional information about

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1 CDC guidelines. Critically, many of these measures are recommended by the CDC,32 yet

2 Defendants have not instituted any of them.

3

Fourth, “by not taking such measures,” Defendants will cause Plaintiffs’ injuries and

4 perhaps even deaths. See Gordon, 888 F.3d at 1125. Without the measures recommended

5 by public health experts, it is inevitable that the virus—which already has ravaged the

6 facilities—will continue to spread through the Maricopa County jails. This not only will

7 infect hundreds of additional individuals, but also threatens to lead to serious illnesses and

8 potential deaths. Ex. 15 (Cohen Decl.) ¶¶ 160-161. This Court has recognized that a

9 detention facility’s failure to implement measures to protect the facility’s most vulnerable

10 causes “an objectively unreasonable risk of transmission of COVID-19 and a resulting

11 substantial risk of serious harm” to the Petitioner’s safety. There is no reason for the Court

12 to rule differently here. See Urdaneta, at *12. In sum, the “conditions serve no legitimate

13 government objective” and “amount to punishment” thereby “violating the Due Process

14 Clause.” Id.

15

While a claim under the Fourteenth Amendment need only meet “objective

16 deliberate indifference,” a claim under the Eighth Amendment—which protects those who

17 are incarcerated post-conviction—must show “subjective deliberate indifference.” Gordon,

18 888 F.3d at 1120, 1125 n.4 (citation omitted). To prove a violation of the Eighth

19 Amendment,33 “it is enough that the official acted or failed to act despite his knowledge of

20 a substantial risk of serious harm.” Farmer, 511 U.S. at 842. A fact finder may infer that a

21 prison official had knowledge of a substantial risk by looking to “circumstantial evidence”

22 or “the very fact that the risk was obvious.” Id. at 841-42. For example, that a risk to

23 incarcerated people is “pervasive, well-documented, or expressly noted by prison officials

24 in the past” is enough for a fact finder to determine actual knowledge on the part of prison

25
32 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in 26 Correctional and Detention Facilities, supra note 7.
33 An Eighth Amendment violation must also, be “objectively sufficiently serious.” Farmer 27 v. Brennan, 511 U.S. 825, 834 (1994). The violation here is objectively sufficiently serious
for the same reason it is sufficiently serious for Fourteenth Amendment liability, as 28 discussed above.

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1 officials. Id. at 842-43.

2

With respect to an impending infectious disease like COVID-19, deliberate

3 indifference is demonstrated when officials “ignore a condition of confinement that is sure

4 or very likely to cause serious illness and needless suffering the next week or month or

5 year,” even when “the complaining inmate shows no serious current symptoms.” Helling,

6 509 U.S. 25, 33, 36 (1993) (holding that a prisoner “states a cause of action. . . by alleging

7 that [corrections officials] have, with deliberate indifference, exposed him to [conditions]

8 that pose an unreasonable risk of serious damage to his future health”). In other words, it

9 “would be odd to deny an injunction to inmates who plainly proved an unsafe, life-

10 threatening condition in their prison on the ground that nothing yet had happened to them.”

11 Id. at 33-34.

12

Defendants have acted with subjective deliberate indifference. The threat of COVID-

13 19 is “obvious . . . pervasive, [and] well-documented”—there are 565 COVID-19-positive

14 cases in the jails to date. See Farmer, 511 U.S. at 842-43. Moreover, in enacting a policy,

15 albeit a terribly ineffective one, to combat the spread of COVID-19, Defendants recognize

16 the risks associated with the disease. Finally, Defendants have released a series of public

17 statements acknowledging the risks of COVID-19 and the need for conditions to meet

18 public health guidelines.34

19

Defendants have also consciously disregarded these substantial risks. That

20 Defendants have made some efforts to address the COVID-19 risk does not immunize them

21 from liability. Rather, the Eighth Amendment is violated where an official “fail[s] to take

22 reasonable measures to abate” the risk. Farmer v. Brennan, 511 U.S. 825, 847 (1994).

23 Following Farmer, the Ninth Circuit has held that even extensive efforts to address

24 unconstitutional conditions or treatment “do[] not immunize officials from the Eighth

25 Amendment requirements.” Edmo v. Corizon, Inc., 935 F.3d 757, 793-94 (9th Cir. 2019)

26 (upholding a deliberate indifference finding despite evidence of “extensive treatment over

27 34 See, e.g., https://www.mcso.org/Multimedia/PressRelease/FAQ%20Covid-19-
28 6.15.20.pdf, accessed June 29, 2020.

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1 a period of years” for gender dysphoria); see also LaMarca v. Turner, 995 F.2d 1526, 1537-

2 38 (11th Cir. 1993) (deliberate indifference found despite warden’s “good faith efforts to

3 resolve the dilemmas facing” the prison, including his work to “secure additional funds,

4 make improvements to GCI’s physical plant, expand recruitment efforts, and institute

5 policies that would have reduced the risk of violence if his staff had followed them.”);

6 De’lonta v. Johnson, 708 F.3d 520, 526 (4th Cir. 2013) (“But just because Appellees have

7 provided De’lonta with some treatment consistent with the GID Standards of Care, it does

8 not follow that they have necessarily provided her with constitutionally adequate

9 treatment.”); Riley v. Olk-Long, 282 F.3d 592, 597 (8th Cir. 2002) (“Although the record

10 indicates that defendants investigated the several reports filed against Link, [defendants]

11 are not shielded from liability because their responses were not adequate given the known

12 risk.”). As set forth above, there are multiple, available, reasonable steps Defendants have

13 failed to take that demonstrate their conscious disregard of the risks of COVID-19.

14

3. Defendants Have a Policy, Custom, and Practice of Violating

Plaintiffs’ Rights.

15

16

A county is liable under § 1983 when there is a “direct causal link between a

17 municipal policy or custom and the alleged constitutional deprivation.” Collins v. City of

18 Harker Heights, Tex., 503 U.S. 115, 123 (1992) (quotation marks and citations omitted).

19 Liability is “founded upon practices of sufficient duration, frequency and consistency that

20 the conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99

21 F.3d 911, 918 (9th Cir. 1996).

22

The jails’ policies are inadequate to ensure constitutionally adequate conditions of

23 confinement, including adequate social distancing measures and sufficient PPE. Nor do

24 Defendants follow the terms of their written policies, which further increases the risk of

25 spreading the virus. See Redman v. Cty. of San Diego, 942 F.2d 1435, 1445 (9th Cir. 1991)

26 (routine failure to follow written policy can be a custom supporting municipal liability).

27 Moreover, as set forth above, Defendants’ failure to release medically vulnerable and

28 disabled incarcerated persons while the virus spreads amounts to deliberate indifference.

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1 See Berry v. Baca, 379 F.3d 764, 768-69 (9th Cir. 2004) (inefficient implementation of

2 policies concerning timely release of prisoners could amount to a policy of deliberate

3 indifference). For each of these reasons, municipal liability against Defendants is warranted.

4

C. The Medically Vulnerable Subclasses Are Likely To Succeed on Their Habeas Claims.

5

Detainees are entitled to habeas relief where they are held “in violation of the

6 Constitution.” 28 U.S.C. § 2241(c)(3); see Preiser v. Rodriguez, 411 U.S. 475, 499 & n.14

7 (1973). Because the Medically Vulnerable Subclasses face a heightened risk of severe

8 illness and death from COVID-19, there is no set of conditions that would render their

9 continued confinement constitutional. This Court has already found the requested relief

10 cognizable under §2241:

11

Because Petitioners claim that their continued detention under the present

12

conditions is unconstitutional and that their immediate release is the only effective remedy (see e.g., Doc. 1 ¶ 14), Petitioners’ claims can be viewed as

13

challenging the fact, not simply the conditions, of their confinement. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (where an individual is

14

“challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release,” the

15

proper remedy is a writ of habeas corpus). The fact that Petitioners’ claims require consideration of detention conditions does not necessarily preclude

16

habeas corpus review. Therefore, in the absence of clear or binding authority to the contrary, these claims are cognizable under § 2241.

17 Urdaneta, at *6.35 Accordingly, the Court should order that members of the Medically

18 Vulnerable Subclasses be released or enlarged pursuant to the process set forth in the

19
35 See also Wilson, 2020 WL 3056217, at *5 (“[P]etitioners’ claims are properly brought 20 under § 2241 because they challenge the fact or extent of their confinement by seeking
release from custody.”); Vazquez Barrera v. Wolf, 2020 WL 1904497, at *4 (S.D. Tex. 21 Apr. 17, 2020) (“Because Plaintiffs are challenging the fact of their detention as
unconstitutional and seek relief in the form of immediate release, their claims fall squarely 22 in the realm of habeas corpus. The mere fact that Plaintiffs’ constitutional challenge requires
discussion of conditions in immigration detention does not necessarily bar such a challenge 23 in a habeas petition.”); Bent v. Barr, 2020 WL 1812850, at *2 (N.D. Cal. Apr. 9, 2020) (“In
this case, Bent does not solely challenge the conditions of his confinement. He contests that 24 his continued detention during the COVID-19 pandemic violates his substantive due
process rights. This is patently a ‘challenge[ ] to the validity’ of his confinement.”); Malam 25 v. Adducci, 2020 WL 1672662, at *3 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020)
(“Petitioner may nonetheless bring her claim under 28 U.S.C. § 2241 because she seeks 26 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.”); Coreas 27 v. Bounds, 2020 WL 1663133, at *7 (D. Md. Apr. 3, 2020) (Plaintiffs entitled to seek habeas
relief where there otherwise would be “no vehicle by which to seek redress for the 28 constitutional violation they allege”).

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1 proposed order. Plaintiffs seek the immediate release or enlargement of Medically 2 Vulnerable Subclass members who are only being held due to their inability to pay bail or 3 whom Defendants agree to release. These persons have already been deemed by their 4 presiding criminal court to be eligible for release subject to payment of bail, and therefore 5 do not pose such a substantial public safety or flight risk that there are no conditions under 6 which they can be released. For all remaining Medically Vulnerable Subclass Members, 7 Plaintiffs have proposed a process by which public safety objections can be considered in 8 light of the grave risks of serious illness and death faced by these persons should they remain 9 jailed, and whether there are alternative conditions short of confinement that could be 10 imposed.

11

1. No Set of Conditions Will Reduce the Risk of Serious Harm for the

Medically Vulnerable Subclass.

12

13

While COVID-19 poses a risk to everyone, there is a “risk of serious consequences

14 from the COVID-19 virus, up to and including death, because of [] underlying medical

15 conditions.” Ex. 21 (Rose v. Baker, No. 17-15009 (9th Cir. Apr. 9, 2020)) at 2 (granting bail

16 pending resolution of habeas case for medically vulnerable prisoner)); Ex. 22 (Mendoza v.

17 Barr, No CV-20-00514-PHX-SPL (MTM) (D. Ariz. June 16, 2020)) at 4-5 (finding the

18 trajectory of COVID-19 infection for diabetic patients “is not only unpredictable, but

19 potentially deadly,” and that “[a]ll patients with symptomatic COVID-19 and risk factors

20 for severe disease should be closely monitored [as] the clinical course may rapidly

21 progress.”). The CDC recently reported that persons who are medically vulnerable are

22 twelve times more likely to die, and six times more likely to be hospitalized, from COVID-

23 19 infection.36 Similarly, while the overall rate of COVID-related hospitalization for those

24 between the ages of 18-49 is 46.7 per 100,000, that number jumps to 126.2 per 100,000 for

25 those between 50-64 years old, and a shocking 254.7 per 100,000 for those above 65. Ex. 15

26

27 36 See Coronavirus Disease 2019 Case Surveillance - United States, January 22 - May 30, 2020, CTRS. FOR DISEASE CONTROL & PREVENTION (accessed June 18, 2020),
28 https://cutt.ly/wuAV1MZ.

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1 (Cohen Decl.) ¶ 28. These complications can manifest at an alarming pace: Patients can

2 show the first symptoms of infection in as little as two days after exposure, and their

3 condition can seriously deteriorate in as little as five days or sooner. Ex. 15 (Cohen Decl.)

4 ¶ 22. These problems are magnified by the lack of adequate healthcare present at most jails,

5 including the Maricopa County jails, which prevents medically vulnerable individuals from

6 accessing the treatment they would need upon infection. Ex. 15 (Cohen Decl.) ¶ 13. Thus,

7 for medically vulnerable detainees, the consequences of COVID-19 are so dire that even a

8 diminished risk of infection is constitutionally intolerable—for them, the only remedy is

9 release or enlargement from their current confinement.

10

2. The Medically Vulnerable Subclass Members Are Also Entitled to

Release or Enlargement Under § 1983.

11

12

To the extent the Court construes the Medically Vulnerable Subclasses’ claim for

13 release or enlargement as a challenge to the conditions of their confinement, they are

14 entitled to relief under section § 1983. As set forth above, members of the Medically

15 Vulnerable Subclasses are incarcerated in conditions that expose them to an unacceptable

16 risk of harm from COVID-19 infection, and “the courts have a responsibility to remedy the

17 resulting Eighth Amendment violation.” See Brown v. Plata, 563 U.S. 493, 511 (2011). The

18 only remedy that will cure the violation for these subclasses is release or enlargement. And

19 where, as here, the unconstitutional conditions giving rise to a section 1983 claim do not

20 relate to “overcrowding”—i.e., incarcerated population over a jail’s capacity—then a single

21 district court judge is empowered to grant the requested relief.37

22

D. Defendants Have A Substantial Likelihood of Success on the Merits of

Their ADA and Section 504 Claims.

23

24

Plaintiffs are likely to prevail on their claims under the ADA and Section 504

25 because Defendants have failed to provide reasonable accommodations to protect members

26

27 37 To the extent the Court characterizes Plaintiffs’ § 1983 release claim as a request for relief from “overcrowding,” Plaintiffs reserve the right to request a three-judge court for a
28 prisoner release order at the appropriate time. See 18 U.S.C. § 3626(a)(3).

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1 of the Disability Subclasses from the serious dangers posed by COVID-19. To state an ADA

2 or Section 504 claim, a plaintiff must show “(1) the plaintiff is an individual with a

3 disability, (2) the plaintiff is otherwise qualified to participate in or receive the benefit of

4 some public entity's services, programs, or activities, (3) the plaintiff was either excluded

5 from participation in or denied the benefits of the public entity's services, programs, or

6 activities, or was otherwise discriminated against by the public entity, and (4) such

7 exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability.”

8 Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). Section 504 imposes parallel

9 requirements on entities that receive federal financial assistance. See Duvall v. Cty. of

10 Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001). Because the ADA and Section 504 claims are

11 distinct from the constitutional claims, the Disability Subclasses need only show that

12 Defendants failed to discharge their affirmative obligation to reasonably accommodate

13 Disability Subclass members in order to be entitled to relief under the statutes. Plaintiffs

14 readily satisfy each of the elements.

15

First, the members of the Disability Subclasses have disabilities under the ADA,

16 which are disabilities that “substantially limit[] one or more major life activities of such

17 individual[s].” 42 U.S.C. § 12102(1)(A).38 For example, members of the class include

18 individuals with hypertension, also known as high blood pressure, Ex. 5 (Fenty Decl.) ¶ 4;

19 Ex. 14 (Tequida Decl.) ¶ 4, and chronic respiratory problems, Ex. 12 (Stepter Decl.) ¶ 4;

20 Ex. 3 (Crough Decl.) ¶ 4. All of these conditions are disabilities under the ADA and

21 Section 504, and all significantly increase the risk of serious medical complications or death

22 upon COVID-19 infection. Ex. 15 (Cohen Decl.) ¶ 4.

23

Second, members of the Disability Subclasses are “qualified” for Defendants’

24

25 38 “[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
26 speaking, breathing, learning, reading, concentrating, thinking, communicating, and working,” as well as “the operation of a major bodily function, including but not limited
27 to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” 42
28 U.S.C. § 12102(2)(a).

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1 programs, services, and activities, including adjudication of their cases; safe, constitutional

2 living conditions during confinement; and medical care and rehabilitative services to

3 prepare for reentry after release. See 42 U.S.C. § 12131(2); 28 C.F.R. § 35.104; 28 C.F.R.

4 § Pt. 35, App. B (“[T]itle II applies to anything a public entity does”). The jails are a “public

5 entity” for purposes of the ADA and are bound to comply with Title II. See 42 U.S.C.

6 § 12131(B).

7

Third, the Maricopa County jails are excluding members of the Disability Subclasses

8 from equally safe participation in, and benefits of, the jails’ services. Under the ADA and

9 Section 504, public entities, like the jails,39 have an affirmative obligation to take steps to

10 ensure that people with disabilities can participate and benefit equally in all aspects of life

11 in the jails. 28 C.F.R. §§ 35.102(a), 35.130(a), (b). These affirmative obligations include

12 making reasonable modifications to their policies, practices, or procedures where necessary

13 to avoid disability discrimination. 28 C.F.R. § 35.130(b)(7)(i). The ADA also prohibits

14 public entities from “utiliz[ing] criteria or methods of administration . . . [t]hat have the

15 effect of subjecting qualified individuals with disabilities to discrimination on the basis of

16 disability” or “[t]hat have the purpose or effect of defeating or substantially impairing

17 accomplishment of the objectives of the public entity’s program with respect to individuals

18 with disabilities.” 28 C.F.R. § 35.130(b)(3)(i)-(ii).

19

Disability Subclass members are medically vulnerable to severe illness or death if

20 they contract COVID-19. They are entitled to reasonable modifications to avoid exclusion

21 —in the form of inability to participate in programming due to severe illness, or death. But

22 Defendants have failed to take steps to protect this vulnerable group in particular to prevent

23 their infection—as discussed in Section I.A.1. above. By failing to account for the specific

24 needs of people with disabilities, the jails are effectively denying disabled detainees an

25 equal opportunity to benefit from the jails’ services, including “recreational ‘activities,’

26 medical ‘services,’ and educational and vocational ‘programs.’” Penn. Dept. of

27 39 See Penn. Dept. of Corrections v. Yeskey, 524 U.S. 206, 210 (1952) (holding that state
28 prisons are “public entities” under the ADA).

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1 Corrections, 524 U.S. at 210; see also United States v. Georgia, 546 U.S. 151, 157 (2006)

2 (plaintiff adequately alleged exclusion where he was deprived of “mobility, hygiene,

3 medical care, and virtually all other prison programs”); Ahlman v. Barnes, 2020 WL

4 2754938, at *12 (C.D. Cal. May 26, 2020) (jail likely violated ADA by “fail[ing] to make

5 reasonable accommodation to allow members of the Disability Class to participate safely

6 in the programs of the Jail” during the COVID-19 crisis).

7

The result of Defendants’ failure to take action to protect and accommodate people

8 with disabilities is devastating. Persons with disabilities do not participate in jail programs

9 and services because they fear participation will lead to infection. See, e.g., Ex. 14 (Tequida

10 Decl.) ¶ 13 (“During the day, I stay in my cell and read the Bible. The guards tell us to get

11 in line to take our meds and receive our meals but there is no social distancing in the lines

12 so I refuse to get in line because of the risk of contracting COVID-19.”). Moreover, since a

13 purpose of pretrial detention is to ensure appearance at trial, if a pretrial detainee becomes

14 too sick or, at worst, dies due to COVID-19, they are denied the rights associated with

15 pretrial detention. Thus, the failure to make basic services accessible to individuals with

16 disabilities, even if merely out of “thoughtlessness and indifference” rather than “invidious

17 animus,” is exactly the type of harm that the ADA and Section 504 are meant to prevent.

18 Alexander v. Choate, 469 U.S. 287, 295 (1985).

19

Fourth, a failure to provide the reasonable modifications necessary to ensure equal

20 access is, itself, discrimination “by reason of” disability. McGary v. City of Portland, 386

21 F.3d 1259, 1265-67 (9th Cir. 2004) (holding that a defendant’s failure to provide reasonable

22 accommodations is sufficient to demonstrate discrimination “by reason of” disability, and

23 noting that “the crux of a reasonable accommodation claim is a facially neutral requirement

24 that is consistently enforced. . . . [t]he . . . suggestion that un equal treatment is required to

25 state a reasonable accommodation claim eviscerates this fundamental purpose of the

26 ADA”).

27

In light of Defendants’ inaction and the growing spread of COVID-19 in the jails,

28 the only reasonable accommodation that Defendants can institute to ameliorate continued

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1 disability discrimination is release or enlargement of the Disability Subclass—starting with

2 the members of the Pretrial Subclass who are held due to an inability to afford bail and

3 using a process to consider release for all others in the Disability Subclasses—and

4 immediate changes to current conditions at the jails for all who remain incarcerated there.

5

E. The Balance of Equities and Public Interest Weigh Heavily in Plaintiffs’

Favor.

6

7

Given the “preventable human suffering” at issue in this case, the “balance of

8 hardships tips decidedly in plaintiffs’ favor.” See Hernandez, 872 F.3d at 996 (quotation

9 omitted) (granting preliminary injunction where bond process denied detainees’

10 constitutional rights). The government “cannot reasonably assert that it is harmed in any

11 legally cognizable sense” by being compelled to follow the law. See Zepeda v. I.N.S., 753

12 F.2d 719, 727 (9th Cir. 1983). The balance of equities thus favors preventing the violation

13 of “requirements of federal law.” Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1069

14 (9th Cir. 2014). Finally, “it is always in the public interest to prevent the violation of a

15 party’s constitutional rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (emphasis added

16 and citations omitted).

17

It is in the interest of the Plaintiffs, the Defendants, and the broader public to improve

18 the conditions at the jails and release a subset of legally innocent incarcerated persons. As

19 set forth above, improved conditions will reduce the risk of serious illness and death for all

20 members of the Medically Vulnerable and Disability Subclasses, as well as the remaining

21 detained population. See also Ex. 15 (Cohen Decl.) ¶¶ 136-159. These measures will also

22 be consistent with recommended guidelines from public health experts, including

23 quarantining where needed and social distancing. Id.

24

But improved conditions, alone, will not suffice. Indeed, it is necessary to release

25 certain members of the Pretrial Medically Vulnerable and Disability Subclasses to minimize

26 risk not just to the Subclass members, but also for the remaining detained persons and

27 facility staff at the Maricopa County jails. Ex. 15 (Cohen Decl.) ¶¶ 134-135. Indeed,

28 because of the severity of the threat posed by COVID-19, and its potential to rapidly spread

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1 throughout a correctional setting, public health experts recommend, first and foremost, the

2 rapid release from custody of people with heightened vulnerability to COVID-19.40 Ex. 15

3 (Cohen Decl.) ¶¶ 134-135. Release of medically vulnerable people is especially important

4 given the heightened risks to their health and safety and given the lack of a viable vaccine

5 for prevention or effective treatment at this stage. Ex. 15 (Cohen Decl.) ¶¶ 16, 31, 134-135.

6 Release protects medically vulnerable people from transmission of the virus, and also

7 allows for greater risk mitigation for people held or working in a prison and the broader

8 community. Id. It also reduces the burden on the region’s health care infrastructure by

9 reducing the likelihood that an overwhelming number of people will become seriously ill

10 from COVID-19 at the same time. Id.

11

In short, “the impact of [the temporary restraining order],” i.e. by improving

12 conditions at the Maricopa County jails and releasing those persons set forth in this motion,

13 “reaches beyond the parties, carrying with it a potential for public consequences.”

14 Hernandez, 872 F.3d at 996 (quotation omitted).

15 III. CONCLUSION

16

Plaintiffs request: (1) the immediate improvement of conditions at the Maricopa

17 County jails, as detailed in the proposed Order; (2) the immediate release of the Pretrial

18 Medically Vulnerable and Pretrial Disability Subclasses who are incarcerated solely due to

19 their inability to afford a financial condition of release, or whose release Defendants do not

20 object to; and (3) a process to identify and promptly release other members of the Pretrial

21 Medically Vulnerable and Pretrial Disability Subclasses from the Maricopa County Jails,

22 as set forth in the Proposed Order.

23

24

25
26
27 40 See, e.g., Josiah Rich, Scott Allen, and Mavis Nimoh, We must release prisoners to lessen the spread of coronavirus, Washington Post, Mar. 17, 2020, available at
28 https://wapo.st/2JDVq7Y.

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Case 2:20-cv-01192-SPL-JZB Document 10 Filed 06/29/20 Page 38 of 39

1

RESPECTFULLY SUBMITED, this 29th day of June, 2020.

2

STINSON LLP

3

/s/ Larry Wulkan

Larry J. Wulkan (021404)

4

STINSON LLP

Firm Identification Number 00462400

5

1850 North Central Avenue, Suite 2100

Phoenix, Arizona 85004-4584

6

Telephone: (602) 279-1600

Fax: (602) 240-6925

7

Email: larry.wulkan@stinson.com

8

ETHAN J. SANDERS* (MO 71151)

(ethan.sanders@stinson.com)

9

STINSON LLP

1201 Walnut Street, Suite 2900

10

Kansas City, MO 64106

Telephone: (816) 691-2628

11

SHARI ROSS LAHLOU* (DC SBN 476630)

12

(shari.lahlou@dechert.com)

DECHERT LLP

13

1900 K Street, N.W.

Washington, DC 20006 - 1110

14

Telephone: (202) 261-3300

15

BRIAN RAPHEL* (NY SBN 5592308)

(brian.raphel@dechert.com)

16

PAT ANDRIOLA* (NY SBN 5406327)

(pat.andriola@dechert.com)

17

TIMOTHY LY* (NY SBN 5478540)

(timothy.ly@dechert.com)

18

DECHERT LLP

Three Bryant Park, 1095 Avenue of the

19

Americas

New York, NY 10036

20

Telephone: (212) 698-3500

21

BENJAMIN M. SADUN* (CA SBN 287533)

(benjamin.sadun@dechert.com)

22

ALLISON OZUROVICH* (CA SBN 312797)

(allie.ozurovich@dechert.com)

23

DECHERT LLP

24

633 West 5th Street, Suite 4900

Los Angeles, CA 90071

25

Telephone: (213) 808-5700

26

JARED G. KEENAN (SBN 027068)

(jkeenan@acluaz.org)

27

CASEY ARELLANO (SBN 031242)

(carellano@acluaz.org)

28

VICTORIA LOPEZ** (SBN 330042)

CORE/3502877.0004/160200868.1

Case 2:20-cv-01192-SPL-JZB Document 10 Filed 06/29/20 Page 39 of 39

1

(vlopez@acluaz.org)

ACLU FOUNDATION OF ARIZONA

2

P.O. Box 17148

Phoenix, AZ 85011

3

Telephone: (602) 650-1854

4

OLGA AKSELROD (Admitted Pro Hac Vice)

(oakselrod@aclu.org)

5

ERIC BALABAN (Admitted Pro Hac Vice)

(ebalaban@aclu.org)

6

ZOE BRENNAN-KROHN (Admitted Pro Hac

Vice) (ZBrennan-Krohn@aclu.org)

7

HUGH HANDEYSIDE (Admitted Pro Hac

Vice) (hhandeyside@aclu.org)

8

CLARA SPERA (Admitted Pro Hac Vice)

(cspera@aclu.org)

9

SOMIL TRIVEDI* (NY SBN 4834495)

(strivedi@aclu.org)

10

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

11

125 Broad Street, 18th Floor

New York, NY 10014

12

Telephone: (212) 549-2569

13

915 15th St. NW, 7th Floor

Washington, DC 20005

14

Telephone: (202) 393-4930

15

39 Drumm Street

San Francisco CA 94111

16

Telephone: (415) 343-0769

17

*Application for pro hac vice forthcoming

**Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

18

19

20 CERTIFICATE OF SERVICE
21

22

I hereby certificate that on June 29, 2020, I caused the foregoing document to be

23 filed electronically with the Clerk of the Court through ECF, and served the counsel of

24 record via the Court’s CM/ECF System:

25 /s/ Kathleen Kaupke
26

27

28

CORE/3502877.0004/160200868.1

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 Case 2:20-cv-01192-SPL-JZB Document 11 Filed 06/29/20 Page 1 of 21

1 Larry J. Wulkan (021404) STINSON LLP
2 Firm Identification Number 00462400 1850 North Central Avenue, Suite 2100
3 Phoenix, Arizona 85004-4584 Telephone: (602) 279-1600
4 Fax: (602) 240-6925 Email: larry.wulkan@stinson.com
5

6

7 Counsel for Plaintiffs Additional counsel listed on following page
8

9 UNITED STATES DISTRICT COURT
10 DISTRICT OF ARIZONA
11

12

13

Jason Fenty, Brian Stepter, Douglas Crough, Edward Reason, Jesus Tequida,

14

Ramon Avenenti, Anthony Scroggins, Dale Perez, and Tamara Ochoa on behalf

15 of themselves and those similarly situated,

Plaintiff-Petitioners,

16

No. 2:20-cv-01192-SPL-JZB
MOTION FOR CLASS CERTIFICATION
(Oral Argument and Immediate Consideration Requested)

17 Puente Human Rights Movement,

18

Plaintiff,

19 v.

20

Sheriff Paul Penzone, in his official capacity, and Maricopa County, a

21 municipal entity,

Defendants. 22

23

24

25

26

27

28

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Case 2:20-cv-01192-SPL-JZB Document 11 Filed 06/29/20 Page 2 of 21

1 Ethan J. Sanders* (MO 71151) STINSON LLP
2 1201 Walnut Street, Suite 2900 Kansas City, MO 64106
3 Telephone: (816) 691-2628 ethan.sanders@stinson.com
4
Brian Raphel* (NY 5592308) 5 Pat Andriola* (NY 5406327)
Timothy Ly* (NY 5478540) 6 DECHERT LLP
Three Bryant Park 7 1095 Avenue of the Americas
New York, NY 10036 8 Telephone: (212) 698-3500
brian.raphel@dechert.com 9 pat.andriola@dechert.com
timonty.ly@dechert.com
10
Jared G. Keenan (AZ 027068) 11 Victoria Lopez** (AZ 330042)
Casey Arellano (AZ 031242) 12 ACLU FOUNDATION OF ARIZONA
P.O. Box 17148 13 Phoenix, AZ 85011
Telephone: (602) 650-1854 14 jkeenan@acluaz.org
vlopez@acluaz.org 15 casey.arellano@acluaz.org

Shari Ross Lahlou * (DC 476630) DECHERT LLP 1900 K Street, N.W. Washington, DC 20006 - 1110 Telephone: (202) 261-3300 shari lahlou@dechert.com
Benjamin M. Sadun* (CA 287533) Allison Ozurovich* (CA 312797) DECHERT LLP 633 West 5th Street, Suite 4900 Los Angeles, CA 90071 Telephone: (213) 808-5700 benjamin.sadun@dechert.com allie.ozurovich@dechert.com
Eric Balaban (Admitted to Maryland Bar) Pro Hac Vice AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th St. NW, 7th Floor Washington, DC 20005 Telephone: (202) 393-4930 ebalaban@aclu.org

16 Olga Akselrod (NY 4132825) Pro Hac Vice Zoe Brennan-Krohn (CA 324912)

Hugh Handeyside (NY 5394002)

Pro Hac Vice

17 Pro Hac Vice

AMERICAN CIVIL LIBERTIES

Clara Spera (NY 5590229) Pro Hac Vice

UNION FOUNDATION

18 Somil Trivedi* (NY 4834495)

39 Drumm Street

AMERICAN CIVIL LIBERTIES UNION San Francisco CA 94111

19 FOUNDATION

Telephone: (415) 343-0769

125 Broad Street, 18th Floor

Zbrennan-krohn@aclu.org

20 New York, NY 10014

Telephone: (212) 549-2569

21 oakselrod@aclu.org

hhandeyside@aclu.org

22 cspera@aclu.org

strivedi@aclu.org

23

*Application for pro hac vice forthcoming 24 **Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

25

26

27

28

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Case 2:20-cv-01192-SPL-JZB Document 11 Filed 06/29/20 Page 3 of 21

1

Plaintiffs1 move the Court to certify the following proposed classes and appoint

2 Plaintiffs’ counsel as class counsel:

3

● Pretrial Class: All current and future persons held by Defendants in pretrial

detention at the five jails operated by the Maricopa County Sheriff’s Office,

4

known as the 4th Avenue, Saguaro,2 Estrella, Lower Buckeye, and Towers

jails (together, the “Maricopa County jails”). 5

● Post-Conviction Class: All current and future persons held by Defendants in

6

post-conviction detention at the Maricopa County jails.

7

Within these classes, Plaintiffs move for the Court to certify a “Medically

8 Vulnerable” subclass, referred to as the Pretrial Medically Vulnerable Subclass and the

9 Post-Conviction Medically Vulnerable Subclass. The Medically Vulnerable subclasses

10 will include the members of each class who are aged 50 years or older or who have medical

11 conditions that place them at heightened risk of severe illness or death from COVID-19.

12

Within each of the Medically Vulnerable subclasses, Plaintiffs move to certify a

13 narrower subclass, referred to as the Pretrial Disability Subclass and the Post-Conviction

14 Disability Subclass, which will include all current and future pretrial detainees who are

15 people with disabilities as defined under the Americans with Disabilities Act (“ADA”) and

16 Section 504 of the Rehabilitation Act (“Section 504”), and whose disabilities put them at

17 increased risk of serious illness or death if they contract COVID-19. This includes all

18 Medically Vulnerable class members except for those who are deemed Medically

19 Vulnerable solely because of their age or obesity.

20

Because Plaintiffs seek emergency class-wide relief, Plaintiffs further request that

21 each of the classes and subclasses be provisionally certified for the purpose of ruling on

22 Plaintiffs’ Application for Temporary Restraining Order, filed concurrently herewith. See

23 Fraihat v. U.S. Immigration and Customs Enforcement, 2020 WL 1932570, at *15 (C.D.

24 Cal. Apr. 20, 2020) (“Courts in the Ninth Circuit routinely grant provisional class

25 certification for purposes of entering injunctive relief”).

26 1 Aside from Puente Human Rights Movement, all plaintiffs seek appointment as class
27 representatives. 2 The Saguaro jail was recently opened and all inmates at another jail, known as Durango,
28 were transferred to Saguaro.

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Case 2:20-cv-01192-SPL-JZB Document 11 Filed 06/29/20 Page 4 of 21

1 I. BACKGROUND

2

This emergency action seeks to protect incarcerated persons and surrounding

3 communities from the emerging public health disaster occurring at the Maricopa County

4 jails as a result of Defendants’ failure to adequately address the spread of COVID-19. The

5 lives of approximately 4,380 people are at risk because housing conditions and medical

6 services in the jails do not meet health authorities’ minimum guidelines. As a result,

7 COVID-19 is now spreading rapidly across the Maricopa County jails, with the number of

8 confirmed cases reportedly increasing by more than 14,000 percent in one month. The

9 danger is particularly severe for people who are elderly, disabled or otherwise have certain

10 medical conditions. Given Defendants’ lack of progress in mitigating the disease and the

11 unprecedented danger these exigent circumstances present, immediate class-wide relief is

12 necessary.

13

Every class member faces a substantial and imminent risk of bodily harm as a result

14 of their detention at the Maricopa County jails. All class members share a core common

15 factual issue and a core common legal issue: what measures Defendants are taking at the

16 Maricopa County jails to protect people who are incarcerated there from COVID-19, and

17 whether those actions (and inactions) fall below minimum constitutional and federal

18 disability law standards. Although the proposed classes and subclasses have minor

19 variations in asserted legal theories and requested relief, the legal frameworks under which

20 each claim will be analyzed largely overlap; the classes share every material issue in

21 common. The individually named Plaintiffs ask this Court to appoint them and their counsel

22 to represent the urgent interests of both classes.

23 II. THE PROPOSED CLASSES

24

Plaintiffs seek certification of two classes, each of which contains a subclass of

25 medically vulnerable incarcerated persons, each of which contains a subclass of disabled

26 incarcerated persons.

27

A. The Pretrial Class

28

The proposed Pretrial Class consists of individuals who have not been convicted of

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Case 2:20-cv-01192-SPL-JZB Document 11 Filed 06/29/20 Page 5 of 21

1 the crime for which they are detained—and thus have a presumption of innocence—and

2 who are awaiting trial while held in the Maricopa County jails. Under the Fourteenth

3 Amendment, a detained person cannot be punished until there has been “a formal

4 adjudication of guilt in accordance with due process of law.” Bell v. Wolfish, 441 U.S. 520,

5 535 n.16 (1979). Thus, the government violates an incarcerated person’s rights if the

6 conditions of confinement amount to punishment. See Doe v. Kelly, 878 F.3d 710, 720 (9th

7 Cir. 2017). The Fourteenth Amendment also requires that members of this proposed class

8 are treated in a manner that is objectively reasonable. Castro v. County of Los Angeles, 833

9 F.3d 1060, 1071-72 (9th Cir. 2016). The Pretrial Class generally seeks injunctive relief

10 requiring the Maricopa County jails to implement public health and safety measures for all

11 Plaintiffs to ensure adequate social distancing, education, wide-spread testing, and other

12 safety protocols.

13

Within the Pretrial Class, any class members who are medically vulnerable to

14 COVID-19 by virtue of their age or their medical history are at greater risk of contracting

15 COVID-19 and, once contracted, suffering particularly severe injuries or death as a result

16 of the virus. Accordingly, Plaintiffs seek certification of the Pretrial Medically Vulnerable

17 Subclass, which consists of all class members in the Pretrial Class who are “Medically

18 Vulnerable,” meaning they are aged 50 years or older or have medical conditions that place

19 them at heightened risk of severe illness or death from COVID-19, such as (a) lung disease,

20 (b) heart disease, (c) chronic liver or kidney disease (including hepatitis and dialysis

21 patients), (d) diabetes, (e) hypertension, (f) compromised immune systems (such as from

22 cancer, HIV, or autoimmune disease), (g) blood disorders (including sickle cell disease),

23 (h) developmental disability (i) severe obesity, and/or (j) moderate to severe asthma. See 24 Ex. 15 (Cohen Decl.) ¶ 4.3 The Pretrial Medically Vulnerable Subclass seeks the same relief

25 requested by the Pretrial Class, based on the same facts and legal theories, but additionally

26

27 3 All “Ex.” references are exhibits to the Notice of Filing Exhibits Supporting PlaintiffPetitioners’ Motion For A Temporary Restraining Order and Motion for Class Certification
28 (Docket 8).

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Case 2:20-cv-01192-SPL-JZB Document 11 Filed 06/29/20 Page 6 of 21

1 seeks: (1) that members of the Pretrial Medically Vulnerable Subclasses who have already

2 been granted bail but are still incarcerated only because they are unable to afford it be

3 released immediately; and (2) that a process be put in place to individually review each

4 remaining member of the Pretrial Medically Vulnerable Subclass to determine who would

5 be appropriate for release from jail.

6

Within the Pretrial Medically Vulnerable Subclass, there are many individuals who

7 have disabilities that substantially limit one or more of their major life activities and, as a

8 result, are more acutely harmed by Defendants’ failure to provide constitutionally adequate

9 protection from COVID-19. Hence, Plaintiffs seek certification of a Pretrial Disability

10 Subclass, which includes all current and future pretrial detainees who are people with

11 disabilities as defined under the ADA and Section 504, and whose disabilities put them at

12 increased risk of serious illness or death if they contract COVID-19. As such, the Pretrial

13 Disability Subclass includes all members of the Pretrial Medically Vulnerable Subclass

14 except for those who are deemed Medically Vulnerable based solely on their age or obesity.

15 The Pretrial Disability Subclass seeks the same relief as the Pretrial Medically Vulnerable

16 Subclass, including release for those who have been granted unaffordable bail and a process

17 for individual consideration of release for all others in the subclass, based on the same facts

18 and legal theories, but also asserts, as additional grounds for relief, that Defendants’ conduct

19 violates the ADA and Section 504.

20

B. The Post-Conviction Class

21

The proposed Post-Conviction Class consists of individuals who have been

22 convicted. Under the Eighth Amendment, prison officials “must provide humane conditions

23 of confinement;” “ensure that inmates receive adequate food, clothing, shelter, and medical

24 care,” and “take reasonable measures to guarantee the safety” of these prisoners. Farmer v.

25 Brennan, 511 U.S. 825, 832 (1994) (internal quotation marks and citations omitted).

26

Like the Pretrial Class, the Post-Conviction Class also includes many class members

27 who are “Medically Vulnerable.” Plaintiffs therefore seek certification of the Post-

28 Conviction Medically Vulnerable Subclass, which consists of all members of the Post-

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Case 2:20-cv-01192-SPL-JZB Document 11 Filed 06/29/20 Page 7 of 21

1 Conviction Class who are Medically Vulnerable. The Post-Conviction Medically

2 Vulnerable Subclass seeks the same relief requested by the Post-Conviction Class and

3 seeks, as additional relief, that a process be put in place to individually review each member

4 of the Post-Conviction Medically Vulnerable Subclass to determine who would be

5 appropriate for release from jail.

6

Within the Post-Conviction Medically Vulnerable Subclass, there are many

7 individuals who have disabilities that substantially limit one or more of their major life

8 activities and, as a result, are more acutely harmed by Defendants’ failure to provide

9 constitutionally adequate protection from COVID-19. Plaintiffs seek certification of the

10 Post-Conviction Disability Subclass, which includes all current and future post-conviction

11 incarcerated persons who have disabilities as defined under the ADA and Section 504, and

12 whose disabilities put them at increased risk of serious illness or death if they contract

13 COVID-19. As such, the Post-Conviction Disability Subclass includes all members of the

14 Post-Conviction Medically Vulnerable Subclass except for those who are deemed

15 Medically Vulnerable based solely on their age or obesity. The Post-Conviction Disability

16 Subclass seeks the same relief as the Post-Conviction Medically Vulnerable Subclass, based

17 on the same facts and legal theories, but also asserts, as additional grounds for relief, that

18 Defendants’ conduct violates the ADA and Section 504.

19 III. THE PROPOSED CLASS REPRESENTATIVES

20

Plaintiffs seek the appointment of nine individuals as class representatives. Each of

21 them is currently incarcerated in one of the Maricopa County jails. Combined, the

22 individually-named Plaintiffs include representatives from each of the five jails and

23 representatives for each of the proposed classes and subclasses.

24

Jason Fenty – Towers Jail

25

(Pretrial Class, Pretrial Medically Vulnerable Subclass, and Pretrial Disability

26 Subclass)

27

Mr. Fenty is a 48-years-old and is currently incarcerated at the Towers Jail, where

28 he is awaiting trial. He is a member of the Pretrial Class. He has stage 2 hypertension,

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Case 2:20-cv-01192-SPL-JZB Document 11 Filed 06/29/20 Page 8 of 21

1 adjustment disorder with anxiety, PTSD, and chest pain, which places him within the

2 Pretrial Medically Vulnerable Subclass and the Pretrial Disability Subclass. He has

3 personally observed and experienced the unconstitutional conditions at Towers, created as

4 a result of policies and procedures in effect in all Maricopa County jails that are woefully

5 inadequate to protect him and his fellow class members from the risks created by COVID-

6 19.

7

Brian Stepter – Lower Buckeye Jail

8

(Pretrial Class, Pretrial Medically Vulnerable Subclass, and Pretrial Disability

9 Subclass)

10

Mr. Stepter is a 61-years-old; he is currently incarcerated at the Lower Buckeye Jail,

11 where he is awaiting trial. He is a member of the Pretrial Class. Additionally, he has chronic

12 respiratory problems that result in difficulty breathing, requires oxygen treatments to clear

13 his lungs, and also has high blood pressure. He is thus within the Pretrial Medically

14 Vulnerable Subclass and the Pretrial Disability Subclass. He has personally observed and

15 experienced the unconstitutional conditions at Lower Buckeye, created as a result of

16 policies and procedures in effect in all Maricopa County jails that are woefully inadequate

17 to protect him and his fellow class members from the risks created by COVID-19.

18

Douglas Crough – Lower Buckeye Jail

19

(Pretrial Class, Pretrial Medically Vulnerable Subclass, and Pretrial Disability

20 Subclass)

21

Mr. Crough is a 55-years-old; he is currently incarcerated at the Lower Buckeye Jail,

22 where he is awaiting trial. He is a member of the Pretrial Class. Mr. Crough has a heart

23 condition, chronic obstructive pulmonary disease (COPD), hepatitis, and chest pain caused

24 by stable angina, which places him within the Pretrial Medically Vulnerable Subclass and

25 the Pretrial Disability Subclass. He has personally observed and experienced the

26 unconstitutional conditions at Lower Buckeye, created as a result of policies and procedures

27 in effect in all Maricopa County jails that are woefully inadequate to protect him and his

28 fellow class members from the risks created by COVID-19.

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Case 2:20-cv-01192-SPL-JZB Document 11 Filed 06/29/20 Page 9 of 21

1

Edward Reason – Saguaro Jail

2

(Post-Conviction Class, Post-Conviction Medically Vulnerable Subclass, and Post-

3 Conviction Disability Subclass)

4

Mr. Reason is a 62-years-old; he is currently serving a 60-day sentence at the

5 Saguaro Jail. As such, he is a member of the Post-Conviction Class. Additionally, he has a

6 respiratory condition known to heighten the danger posed by a COVID-19 infection,

7 especially given his advanced age, which places him within the Post-Conviction Medically

8 Vulnerable Subclass and the Post-Conviction Disability Subclass. He has personally

9 observed and experienced the unconstitutional conditions at Saguaro (and Durango, where

10 he was previously housed), created as a result of policies and procedures in effect in all

11 Maricopa County jails that are woefully inadequate to protect him and his fellow class

12 members from the risks created by COVID-19.

13

Jesus Tequida – Lower Buckeye Jail

14

(Post-Conviction Class, Post-Conviction Medically Vulnerable Subclass, and Post-

15 Conviction Disability Subclass)

16

Mr. Tequida is a 64-year-old man currently incarcerated at the Lower Buckeye Jail,

17 where he is awaiting sentencing. He is a member of the Post-Conviction Class. Mr. Tequida

18 has serious health issues including, among other things, high blood pressure, kidney failure,

19 cardiomyopathy, cardiomegaly, heart failure, hepatitis, as well as liver and prostate

20 problems, which places him within the Post-Conviction Medically Vulnerable Subclass and

21 the Post-Conviction Disability Subclass. He has personally observed and experienced the

22 unconstitutional conditions at Lower Buckeye, created as a result of policies and procedures

23 in effect in all Maricopa County jails that are woefully inadequate to protect him and his

24 fellow class members from the risks created by COVID-19.

25

Ramon Avenenti – Lower Buckeye Jail

26

(Post-Conviction Class)

27

Mr. Avenenti is a 42-year-old man who is currently incarcerated at the Lower

28 Buckeye Jail, where he is awaiting sentencing following a plea bargain in February 2020.

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Case 2:20-cv-01192-SPL-JZB Document 11 Filed 06/29/20 Page 10 of 21

1 As such, he is a member of the Post-Conviction Class. He has personally observed and

2 experienced the unacceptable conditions at Lower Buckeye, created as a result of policies

3 and procedures in effect in all Maricopa County jails that are woefully inadequate to protect

4 him and his fellow class members from the risks created by COVID-19.

5

Anthony Scroggins – 4th Avenue Jail

6

(Pretrial Class, Pretrial Medically Vulnerable Subclass, and Pretrial Disability

7 Subclass)

8

Mr. Scroggins is a 44-years-old; he is currently incarcerated at the 4th Avenue Jail,

9 where he is awaiting trial. As such, he is a member of the Pretrial Class. Additionally, he

10 has been diagnosed with asthma, which increases his vulnerability to COVID-19. He also

11 has allergies, neuropathy, gout, and schizophrenia. Accordingly, he is a member of the

12 Pretrial Medically Vulnerable Subclass and the Pretrial Disability Subclass. He has

13 personally observed and experienced the unacceptable conditions at 4th Avenue, created as

14 a result of policies and procedures in effect in all Maricopa County jails that are woefully

15 inadequate to protect him and his fellow class members from the risks created by COVID-

16 19.

17

Dale Perez – Towers Jail

18

(Pretrial Class)

19

Mr. Perez is a 36-years-old; he is currently incarcerated at the Towers Jail, where he

20 is awaiting trial. He is a member of the Pretrial Class. He has personally observed and

21 experienced the unconstitutional conditions at 4th Avenue, created as a result of policies

22 and procedures in effect in all Maricopa County jails that are woefully inadequate to protect

23 him and his fellow class members from the risks created by COVID-19.

24

Tamara Ochoa – Estrella Jail

25

(Pretrial Class)

26

Ms. Ochoa is a 27-years-old; she is currently incarcerated at the Estrella Jail, where

27 she is awaiting trial. She is a member of the Pretrial Class. She has personally observed and

28 experienced the unconstitutional conditions at 4th Avenue, created as a result of policies

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Case 2:20-cv-01192-SPL-JZB Document 11 Filed 06/29/20 Page 11 of 21

1 and procedures in effect in all Maricopa County jails that are woefully inadequate to protect

2 her and her fellow class members from the risks created by COVID-19

3

Combined, six of the individually named Plaintiffs are members of the Pretrial Class

4 (Mr. Fenty, Mr. Stepter, Mr. Crough, Mr. Scroggins, Mr. Perez, Ms. Ochoa), four are

5 members of the Pretrial Medically Vulnerable Subclass (Mr. Fenty, Mr. Stepter,

6 Mr. Crough, Mr. Scroggins), four are members of the Pretrial Disability Subclass

7 (Mr. Fenty, Mr. Stepter, Mr. Crough, Mr. Scroggins), three are members of the Post-

8 Conviction Class (Mr. Reason, Mr. Tequida, Mr. Avenenti), two are members of the Post-

9 Conviction Medically Vulnerable Subclass (Mr. Reason, Mr. Tequida), and two are

10 members of the Post-Conviction Disability Subclass (Mr. Reason, Mr. Tequida).

11 Additionally, one of the individually named Plaintiffs resides at the 4th Avenue jail

12 (Mr. Scroggins), one resides at the Saguaro jail (Mr. Reason), one resides at the Estrella jail

13 (Ms. Ochoa), three reside at the Lower Buckeye jail (Mr. Stepter, Mr. Crough,

14 Mr. Tequida), and two reside at the Towers jail (Mr. Fenty, Mr. Perez).

15 IV. LEGAL ARGUMENT

16

“Under Rule 23(a), a party seeking certification of a class or subclass must satisfy

17 four requirements: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of

18 representation.” Parsons v. Ryan, 754 F.3d 657, 674 (9th Cir. 2014). The party’s “proposed

19 class or subclass must also satisfy the requirements of one of the sub-sections of Rule 23(b),

20 which defines three different types of classes.” Id. (internal quotation marks and citation

21 omitted). Rule 23(b)(2) requires that “the party opposing the class has acted or refused to

22 act on grounds that apply generally to the class, so that final injunctive relief or

23 corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ.

24 P. 23(b)(2). A party “whose suit meets the specified criteria” of Rule 23(a) and Rule 23(b)

25 has a “categorical” right “to pursue his claim as a class action.” Shady Grove Orthopedic

26 Assocs., P.A. v. Allstate Ins., Co., 559 U.S. 393, 398 (2010). Moreover, when a plaintiff

27 makes a preliminary showing that Rule 23 has been satisfied and seeks preliminary

28 injunctive relief, the Court may also provisionally certify a class for the purpose of granting

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1 that relief. See, e.g., Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036, 1042-43

2 (9th Cir. 2012).

3

Because class certification is a procedural device that is appropriate whenever the

4 prerequisites set forth in Rules 23(a) and 23(b) are met, the Court’s review when

5 considering a motion for class certification is limited only to whether those prerequisites

6 are satisfied. No determination of whether the underlying claims are meritorious is

7 necessary or appropriate at this time. Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 178

8 (1974).

9

A. The Proposed Classes Satisfy Rule 23(a)(1)-(4)

10

1. The Proposed Classes Are Sufficiently Numerous.

11

Each of Plaintiffs’ proposed classes—which together contain thousands of

12 individuals, and which seek only class-wide injunctive relief—satisfies numerosity.

13 Numerosity requires that “the class is so numerous that joinder of all members is

14 impracticable.” Fed. R. Civ. P. 23(a)(1). To be impracticable, joinder must be difficult or

15 inconvenient but need not be impossible. See Harris v. Palm Springs Alpine Estates, Inc.,

16 329 F.2d 909, 913-14 (9th Cir. 1964). “In addition to class size, courts consider other indicia

17 of impracticability, such as . . . the size of individual claims, the financial resources of class

18 members, and the ability of claimants to institute individual suits.” Torres v. Goddard, 314

19 F.R.D. 644, 654 (D. Ariz. 2010) (citation omitted). Where, as here, the relief sought is “only

20 injunctive or declaratory,” the numerosity requirement is somewhat relaxed. See Sueoka v.

21 United States, 101 F. App’x 649, 653 (9th Cir. 2004).

22

Generally, courts find numerosity “when a class includes at least 40 members.”

23 Rannis v. Recchia, 380 F. App’x 646, 651 (9th Cir. 2010). Where the exact number of class

24 members is unknown, the court may find that numerosity is met if “general knowledge and

25 common sense indicate that joinder would be impracticable.” Knapper v. Cox Commc’ns,

26 Inc., 329 F.R.D. 238, 241 (D. Ariz. 2019). Here, the exact numbers and identities of

27 members in each class and subclass are unknown because this information is exclusively

28 within Defendants’ control, and it “is precisely in situations such as this that joinder of

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Case 2:20-cv-01192-SPL-JZB Document 11 Filed 06/29/20 Page 13 of 21

1 plaintiffs is impracticable because it is difficult to identify the proposed class members.”

2 Franco-Gonzales v. Napolitano, 2011 WL 11705815, at *8 (C.D. Cal. Nov. 21, 2011).

3 However, common sense dictates that each class and subclass almost certainly include at

4 least 40 members since we know, by Defendants’ own reporting, that there are roughly

5 4,500 individuals currently within the jail. There are at least 300 incarcerated people who

6 are medically vulnerable based solely on their age. See Complaint ¶ 33. Further, at least one

7 study conducted by the Department of Justice found that “half of state and federal prisoners 8 and local jail inmates reported having a chronic condition,”4 suggesting that there may be

9 thousands of medically vulnerable and disabled persons within the classes. Indeed, the CDC

10 has recognized that “incarcerated/detained populations have higher prevalence of infectious

11 and chronic diseases and are in poorer health than the general population, even at younger 12 ages.”5

13

Finally, other factors make joinder impracticable. First, joinder takes time, and delay

14 here will increase serious harms and even deaths. According to the government’s own data,

15 COVID-19 is spreading exponentially across the Maricopa County jails, increasing more

16 than 14,000 percent in the past month. Second, communicating with people incarcerated in

17 the Maricopa County jails is exceptionally difficult since it must be done by scheduled and

18 time-limited video-conference sessions. Third, both classes are inherently transitory and

19 include unidentifiable future members who will be but are not yet residents of the Maricopa 20 County jails.6 See Chief Goes Out v. Missoula Cty., 2013 WL 139938, at *2 (D. Mont. Jan.

21 10, 2013) (finding numerosity met because the “fluid composition of a prison population is

22 particularly well-suited for class status, because, although the identity of the individuals

23

24 4 https://www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf 5 CTRS. FOR DISEASE CONTROL & PREVENTION, CS 316182-A, INTERIM GUIDANCE ON
25 MANAGEMENT OF CORONAVIRUS DISEASE 2019 (COVID-19) IN CORRECTIONAL AND DETENTION FACILITIES (Mar. 27, 2020), https://cutt.ly/EyMHwLV
26 6 Moreover, the inclusion of future members in the class is a factor in favor of certification as it weighs in favor of numerosity. See, e.g., Parsons, 754 F.3d at 672 (affirming class
27 certification of class of “[a]ll prisoners who are now, or will in the future be, subjected to the medical, mental health, and dental care policies and practices of the [Ariz. Dep’t of
28 Corrections]”).

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1 involved may change, the nature of the wrong and the basic parameters of the group affected

2 remain constant”) (quotations and citation omitted). Fourth, all class members are

3 incarcerated, and many are indigent, rendering their ability to seek counsel and file

4 individual actions limited at best. Fraihat, 2020 WL 1932570, at *17 (finding numerosity

5 for detained population because of “the turmoil, expense, and difficulty caused by a

6 piecemeal approach”). This is especially true for those people in the Medically Vulnerable

7 subclasses, whose age and/or medical conditions may make organizing legal action

8 particularly difficult. For most if not all members of the classes, being forced to litigate their

9 claims on an individual basis would, in effect, mean that the ongoing violation of their

10 constitutional rights would remain unheard and unaddressed—potentially until it is too late.

11

2. The Proposed Classes Satisfy Commonality.

12

Commonality requires plaintiffs to show that “there are questions of law or fact

13 common to the class.” Fed. R. Civ. P. 23(a)(2). “A clear line of precedent . . . firmly

14 establishes that when inmates provide sufficient evidence of systemic and centralized

15 policies or practices in a prison system that allegedly expose all inmates in that system to a

16 substantial risk of serious future harm, Rule 23(a)(2) is satisfied.” Parsons, 754 F.3d at 684.

17 Federal courts routinely find that commonality exists for classes of people who allege

18 system-wide failures in large state institutional agencies. Ortega-Melendres v. Arpaio, 836

19 F. Supp. 2d 959, 989 (D. Ariz. 2011) (“In a civil rights suit, ‘commonality is satisfied where

20 the lawsuit challenges a system-wide practice or policy that affects all of the putative class

21 members.’”). Commonality requires plaintiffs to assert claims that “depend upon a common

22 contention . . . capable of classwide resolution—which means that determination of its truth

23 or falsity will resolve an issue that is central to the validity of each one of the claims in one

24 stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (“Dukes”). Under the

25 Dukes standard, “numerous courts have concluded that the commonality requirement can

26 be satisfied by proof of the existence of systemic policies and practices that allegedly expose

27 inmates to a substantial risk of harm.” Parsons, 754 F.3d at 681 (collecting cases); see also

28 Unknown Parties v. Johnson, 163 F. Supp. 3d 630, 635 (D. Ariz. 2016) (“In the civil rights

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Case 2:20-cv-01192-SPL-JZB Document 11 Filed 06/29/20 Page 15 of 21

1 context, commonality is satisfied ‘where the lawsuit challenges a system-wide practice or

2 policy that affects all of the putative class members.’”) (quoting Armstrong v. Davis, 275

3 F.3d 849, 868 (9th Cir. 2001)).

4

Moreover, commonality “does not . . . mean that every question of law or fact must

5 be common to the class.” Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir.

6 2013). To the contrary, “even a single common question” may satisfy Rule 23(a)(2).

7 Parsons, 754 F.3d at 675. “The existence of shared legal issues with divergent factual

8 predicates is sufficient [to satisfy commonality], as is a common core of salient facts

9 coupled with disparate legal remedies within the class.” Staton v. Boeing Co., 327 F.3d 938,

10 953 (9th Cir. 2003) (quoting omitted).

11

Here, all members of the proposed Pretrial and Post-Conviction Classes share a

12 common set of facts: all are confined at the Maricopa County jails and are therefore subject

13 to the same policies, procedures, and practices that are part and parcel of Defendants’

14 woefully inadequate response to COVID-19. All have been directed by the CDC and other

15 health authorities to abide by certain social distancing practices for their own safety, as well

16 as the safety of others, and their common inability to comply with those guidelines is the

17 direct result of the common conditions of confinement provided by the Defendants. All are

18 subject to the same conditions that actively promote, rather than ameliorate, the spread of

19 COVID-19. See Unknown Parties, 163 F. Supp. 3d at 640 (holding that “claims involving

20 overall conditions that affect the rights of all putative class members are sufficient to satisfy

21 commonality” and that whether “such conditions result from Defendants’ stated policies or

22 from their alleged failure to create or adhere to those policies does not change the

23 commonality analysis”); cf. Parsons, 754 F.3d at 678 (finding commonality where “all

24 members of the putative class and subclass have in common . . . their alleged exposure, as

25 a result of specified statewide ADC policies and practices . . , to a substantial risk of serious

26 future harm to which the defendants are allegedly deliberately indifferent”).7

27 7 Although there may be minor differences in the conditions at each of the Maricopa County
28

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Case 2:20-cv-01192-SPL-JZB Document 11 Filed 06/29/20 Page 16 of 21

1

Additionally, each of the proposed classes present common questions of law.

2 Specifically, each class and subclass asks whether the Defendants’ policies subject the class

3 members to a heightened risk of serious illness and death in violation of their Fourteenth

4 Amendment due process rights and/or Eighth Amendment rights against cruel and unusual

5 punishment. The Pretrial Disability Subclass and the Post-Conviction Disability subclasses

6 also share common questions of law regarding whether Defendants’ conduct violates the

7 ADA and/or Section 504. Each class and subclass further asks what relief is necessary to

8 mitigate the risks posed by their confinement in the Maricopa County jails.

9

In another COVID-19 case, the court, in Ahlman v. Barnes, 2020 WL 2754938 (C.D.

10 Cal. May 26, 2020), provisionally certified classes and subclasses of pre-trial and post-

11 conviction detainees in the wake of COVID-19. The Court found, because “Plaintiffs

12 challenge Defendants’ institution-wide response and seek institution-wide injunctive relief

13 . . . the relevant questions such as deliberate indifference will be decided on a class-wide,

14 rather than individual, basis.” Id. at *7.

15

Courts in the circuit have also provisionally certified classes of persons in

16 immigration detention who assert constitutional challenges similar to those here. See

17 Hernandez Roman v. Wolf, No. 20-00768 TJH (PVCx) (C.D. Cal. Apr. 23, 2020), ECF No.

18 52. Similarly, in Fraihat, the court observed: “Despite Plaintiffs’ admitted differences, each

19 putative class member finds herself in similar situation.” 2020 WL 1932570, at *18.

20 Whether Defendants’ inadequate policies in response to COVID-19 violate Plaintiffs’

21 constitutional rights depends upon the existence of “a common contention . . . capable of

22 class-wide resolution,” for which the “determination of its truth or falsity will resolve an

23 issue that is central to the validity of each one of the claims in one stroke.” Dukes, 564 U.S.

24 at 350.

25

26 jails, they each remain subject to the same inadequate policies and procedures enacted and enforced by the Defendants. The question of whether those policies and procedures violate
27 the class members’ constitutional rights is more than sufficient to satisfy Rule 23’s requirement of a single common question of fact. Further, the Individual Plaintiffs include
28 representatives from each of the five Maricopa County jails. See infra.

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1

3. The Individual Plaintiffs’ Claims Are Typical Of The Claims Of The

Classes And Subclasses

2

3

Typicality exists if “the claims or defenses of the representative parties are typical

4 of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The “requirement is

5 permissive and requires only that the representative’s claims are reasonably co-extensive

6 with those of absent class members; they need not be substantially identical.” Rodriguez v.

7 Hayes, 591 F.3d 1105, 1124 (9th Cir. 2010) (internal quotation marks and citation omitted).

8 “The test of typicality is ‘whether other members [of the class] have the same or similar

9 injury, whether the action is based on conduct which is not unique to the named plaintiffs,

10 and whether other class members have been injured by the same course of conduct.’”

11 Parsons, 754 F.3d at 685. Typicality is “satisfied when each class member’s claim arises

12 from the same course of events, and each class member makes similar legal arguments to

13 prove the defendant’s liability.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001)

14 (citation omitted). Variations among individual plaintiffs’ circumstances, or the extent of

15 their injuries, will not defeat typicality as long as the named plaintiffs’ injuries arise “from

16 the same event or practice or course of conduct that [gives] rise to the claims of other class

17 members,” and the named plaintiffs’ claims are “based on the same legal theory” as the

18 class’s claims. Ramirez v. TransUnion LLC, 951 F.3d 1008, 1033 (9th Cir. 2020)

19 (quotations and citations omitted).

20

Each of the individually named Plaintiffs asserts substantively identical claims that

21 arise from the same failure by Defendants to adequately implement social distancing and

22 other appropriate health and safety measures in the Maricopa County jails in response to

23 COVID-19. The individually named Plaintiffs are subject to similar conditions of

24 confinement that present a significant yet avoidable risk of serious illness and death from

25 contracting COVID-19. See Unknown Parties, 163 F. Supp. 3d at 641 (finding typicality

26 because Plaintiffs “experienced the same overall conditions of confinement”); see also

27 Ahlman, 2020 WL 2754938, at *8 (finding typicality in a COVID-19 case). Each of the

28 individually named Plaintiffs asserts claims that are typical of those asserted by the other

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Case 2:20-cv-01192-SPL-JZB Document 11 Filed 06/29/20 Page 18 of 21

1 members of the classes and subclasses that each individually named Plaintiff seeks to

2 represent.

3

4. The Individually Named Plaintiffs Are Adequate Class Representatives

and Have Retained Adequate Class Counsel.

4

5

Adequacy is satisfied when “the representative parties will fairly and adequately

6 protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Whether the class

7 representatives satisfy the adequacy requirement depends on ‘the qualifications of counsel

8 for the representatives, an absence of antagonism, a sharing of interests between

9 representatives and absentees, and the unlikelihood that the suit is collusive.’” Walters v.

10 Reno, 145 F.3d 1032, 1046 (9th Cir. 1998). The adequacy requirement “tend[s] to merge

11 with the commonality and typicality criteria of Rule 23(a).” Amchem Prods., Inc. v.

12 Windsor, 521 U.S. 591, 626 n.20 (1997) (alteration in original) (citation and quotation

13 marks omitted). The adequacy requirement is met here because Plaintiffs and their counsel

14 will adequately represent the interests of both classes, which are aligned and intertwined.

15

Class counsel are “qualified” when they can establish their experience in previous

16 class actions and cases involving the same area of law. Lynch v. Rank, 604 F. Supp. 30, 37

17 (N.D. Cal. 1984), aff’d, 747 F.2d 528 (9th Cir. 1984). Here, class counsel are attorneys from

18 the American Civil Liberties Union Foundation (“ACLU”), the ACLU of Arizona, Dechert

19 LLP, and Stinson LLP, who, individually and collectively, have extensive relevant

20 experience to litigate this matter to completion. See Ex. 24 (Akselrod Decl.); Ex. 25 (Lopez

21 Decl.); Ex. 26 (Ross Lahlou Decl.); Ex. 27 (Wulkan Decl.). These attorneys have

22 participated as class counsel, or have extensive subject-matter expertise, in numerous civil-

23 rights related cases before this Court and others, including in other cases related to COVID-

24 19 in the detention context. Counsel know of no conflicts among the proposed class

25 members or between counsel and the proposed class members, and counsel will vigorously

26 represent the proposed classes.

27

The individually named Plaintiffs have the requisite personal interest in the outcome

28 of this case, which they share will all class members, and they will fairly and adequately

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Case 2:20-cv-01192-SPL-JZB Document 11 Filed 06/29/20 Page 19 of 21

1 protect the interests of the proposed classes.

2

B. The Proposed Classes Satisfy Rule 23(b)(2).

3

“Rule 23(b)(2) permits class actions for declaratory or injunctive relief where ‘the

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

5 class.’” Amchem, 521 U.S. at 614. There can be no reasonable dispute that the instant action

6 falls squarely within Rule 23(b)(2). That is because “the primary role of this provision has

7 always been the certification of civil rights class actions.” Parsons, 754 F.3d at 686 (citation

8 omitted). Courts “have repeatedly invoked” Rule 23(b)(2) “to certify classes of inmates

9 seeking declaratory and injunctive relief for alleged widespread Eighth Amendment

10 violations in prison systems.” Parsons, 754 F.3d at 686.

11

In the Ninth Circuit, “it is sufficient to meet” Rule 23(b)(2)’s requirements when

12 “class members complain of a pattern or practice that is generally applicable to the class as

13 a whole.” Rodriguez, 591 F.3d at 1125-26. That inquiry is easily satisfied here. First,

14 Defendants are acting on grounds that are generally applicable to the proposed classes

15 because Defendants have subjected all proposed class members to the same unconstitutional

16 policies or practices that expose Plaintiffs to an unreasonable risk of serious harm. Second,

17 the injunctive relief requested by Plaintiffs is appropriate for each class as a whole. Each

18 class requests uniform relief in the form of certain declarations and an injunction. In order

19 to comply with the requested injunction, Defendants would have to implement facility-wide

20 changes applicable to, and for the benefit of, all class members. Thus, Rule 23(b)(2) is 21 satisfied.8

22 V. CONCLUSION

23

Plaintiffs proposed classes and subclasses should be certified.

24

25

26
8Alternatively, Plaintiffs’ proposed classes satisfy Rule 23(b)(1) because requiring 27 hundreds of individual class members to prosecute separate actions on the same claims
would create a significant risk of inconsistent or varying adjudications that would establish 28 incompatible standards of conduct for Defendants.

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Case 2:20-cv-01192-SPL-JZB Document 11 Filed 06/29/20 Page 20 of 21

1

2

RESPECTFULLY SUBMITED, this 29th day of June, 2020.

3

STINSON LLP

4

/s/ Larry Wulkan

Larry J. Wulkan (021404)

5

STINSON LLP

Firm Identification Number 00462400

6

1850 North Central Avenue, Suite 2100

Phoenix, Arizona 85004-4584

7

Telephone: (602) 279-1600

Fax: (602) 240-6925

8

Email: larry.wulkan@stinson.com

9

ETHAN J. SANDERS* (MO 71151)

(ethan.sanders@stinson.com)

10

STINSON LLP

1201 Walnut Street, Suite 2900

11

Kansas City, MO 64106

Telephone: (816) 691-2628

12

SHARI ROSS LAHLOU* (DC SBN 476630)

13

(shari.lahlou@dechert.com)

DECHERT LLP

14

1900 K Street, N.W.

Washington, DC 20006 - 1110

15

Telephone: (202) 261-3300

16

BRIAN RAPHEL* (NY SBN 5592308)

(brian.raphel@dechert.com)

17

PAT ANDRIOLA* (NY SBN 5406327)

(pat.andriola@dechert.com)

18

TIMOTHY LY* (NY SBN 5478540)

(timothy.ly@dechert.com)

19

DECHERT LLP

Three Bryant Park, 1095 Avenue of the

20

Americas

New York, NY 10036

21

Telephone: (212) 698-3500

22

BENJAMIN M. SADUN* (CA SBN 287533)

(benjamin.sadun@dechert.com)

23

ALLISON OZUROVICH* (CA SBN 312797)

(allie.ozurovich@dechert.com)

24

DECHERT LLP

25

633 West 5th Street, Suite 4900

Los Angeles, CA 90071

26

Telephone: (213) 808-5700

27

JARED G. KEENAN (SBN 027068)

(jkeenan@acluaz.org)

28

CASEY ARELLANO (SBN 031242)

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Case 2:20-cv-01192-SPL-JZB Document 11 Filed 06/29/20 Page 21 of 21

1

(carellano@acluaz.org)

VICTORIA LOPEZ** (SBN 330042)

2

(vlopez@acluaz.org)

ACLU FOUNDATION OF ARIZONA

3

P.O. Box 17148

Phoenix, AZ 85011

4

Telephone: (602) 650-1854

5

OLGA AKSELROD (Admitted Pro Hac Vice)

(oakselrod@aclu.org)

6

ERIC BALABAN (Admitted Pro Hac Vice)

(ebalaban@aclu.org)

7

ZOE BRENNAN-KROHN (Admitted Pro Hac

Vice) (ZBrennan-Krohn@aclu.org)

8

HUGH HANDEYSIDE (Admitted Pro Hac

Vice) (hhandeyside@aclu.org)

9

CLARA SPERA (Admitted Pro Hac Vice)

(cspera@aclu.org)

10

SOMIL TRIVEDI* (NY SBN 4834495)

(strivedi@aclu.org)

11

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

12

125 Broad Street, 18th Floor

New York, NY 10014

13

Telephone: (212) 549-2569

14

915 15th St. NW, 7th Floor

Washington, DC 20005

15

Telephone: (202) 393-4930

16

39 Drumm Street

San Francisco CA 94111

17

Telephone: (415) 343-0769

18

*Application for pro hac vice forthcoming

**Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

19

20

21 CERTIFICATE OF SERVICE
22

23

I hereby certificate that on June 29, 2020, I caused the foregoing document to be

24 filed electronically with the Clerk of the Court through ECF, and served the counsel of

25 record via the Court’s CM/ECF System:

26 /s/ Kathleen Kaupke
27

28

CORE/3502877.0004/160201059.2

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 Case 2:20-cv-01192-SPL-JZB Document 44 Filed 08/04/20 Page 1 of 48



1 Larry J. Wulkan (Bar No. 021404)
STINSON LLP 2 1850 North Central Avenue, Suite 2100
Phoenix, Arizona 85004-4584 3 Tel: (602) 212-8511
Fax: (602) 240-6925 4 Email: larry.wulkan@stinson.com

5 Additional counsel listed on following page Attorneys for Plaintiffs
6
UNITED STATES DISTRICT COURT 7
DISTRICT OF ARIZONA 8

9

Jason Fenty, Brian Stepter, Douglas Crough, Edward Reason, Jesus Tequida,

10

Ramon Avenenti, Anthony Scroggins, Dale Perez, and Tamara Ochoa on behalf

11

of themselves and those similarly situated,

12

Plaintiffs-Petitioners,

No. 2:20-cv-01192-SPL-JZB
REPLY IN SUPPORT OF PLAINTIFF-PETITIONERS’ EX PARTE APPLICATION FOR A PRELIMINARY INJUNCTION

13 Puente Human Rights Movement,

14

15 v.

Plaintiff,

16 Sheriff Paul Penzone, in his official

17

capacity, and Maricopa County, a municipal entity,

18

Defendants.

19

20

21

22

23

24

25

26

27

28

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Case 2:20-cv-01192-SPL-JZB Document 44 Filed 08/04/20 Page 2 of 48



1 Ethan J. Sanders (MO 71151) Pro Hac Vice
2 STINSON LLP 1201 Walnut Street, Suite 2900
3 Kansas City, MO 64106 Telephone: (816) 691-2628
4 ethan.sanders@stinson.com

Shari Ross Lahlou (DC 476630) Pro Hac Vice DECHERT LLP 1900 K Street, N.W. Washington, DC 20006 - 1110 Telephone: (202) 261-3300 Shari.lahlou@dechert.com

5 Brian Raphel (NY 5592308) Pro Hac Vice Benjamin M. Sadun (CA 287533)

Pat Andriola (NY 5406327) Pro Hac Vice Pro Hac Vice

6 Timothy Ly (NY 5478540) Pro Hac Vice Allison Ozurovich (CA 312797)

DECHERT LLP

Pro Hac Vice

7 Three Bryant Park

DECHERT LLP

1095 Avenue of the Americas

633 West 5th Street, Suite 4900

8 New York, NY 10036

Los Angeles, CA 90071

Telephone: (212) 698-3500

Telephone: (213) 808-5700

9 brian.raphel@dechert.com

benjamin.sadun@dechert.com

pat.andriola@dechert.com

allie.ozurovich@dechert.com

10 timonty.ly@dechert.com

11 Jared G. Keenan (AZ 027068) *Casey Arellano (AZ 031242)
12 ACLU FOUNDATION OF ARIZONA P.O. Box 17148
13 Phoenix, AZ 85011 Telephone: (602) 650-1854
14 jkeenan@acluaz.org casey.arellano@acluaz.org
15
Olga Akselrod (NY 4132825) 16 Pro Hac Vice
Hugh Handeyside (NY 5394002) 17 Pro Hac Vice
Clara Spera (NY 5590229) 18 Pro Hac Vice
Somil Trivedi (NY 4834495) 19 Pro Hac Vice
AMERICAN CIVIL LIBERTIES 20 UNION FOUNDATION
125 Broad Street, 18th Floor 21 New York, NY 10014
Telephone: (212) 549-2569 22 oakselrod@aclu.org
hhandeyside@aclu.org 23 cspera@aclu.org
strivedi@aclu.org
24

Eric Balaban (Admitted to Maryland Bar) Pro Hac Vice AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th St. NW, 7th Floor Washington, DC 20005 Telephone: (202) 393-4930 ebalaban@aclu.org
Zoe Brennan-Krohn (CA 324912) Pro Hac Vice AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco CA 94111 Telephone: (415) 343-0769 Zbrennan-krohn@aclu.org 

25 *Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

26

27

28

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

1

TABLE OF CONTENTS

2 I. INTRODUCTION................................................................................................. 1

3

II.

EVEN IF DEFENDANTS’ POLICIES WERE ENFORCED—THEY ARE NOT—THEY ARE CONSTITUTIONALLY INSUFFICEINT ............................ 1

4

A. Differences Between Policies Applicable To Staff And Incarcerated

Persons Confirm That Defendants Are Indifferent To Incarcerated

5

Persons’ Serious Medical Needs ................................................................. 2

6

B. MCSO’s Policies Are Inadequate For Protecting Medically Vulnerable And Disabled Subclass Members ............................................. 5

7

C. Defendants Concede That MCSO Policies, Even When Enforced, Do

Not Allow Social Distancing ...................................................................... 6

8

D. MCSO’s New Testing Scheme Is Inadequate.............................................. 7

9 10 II.

E. Defendants Ignore the Gaps Between Stated Policy and Actual Practice....................................................................................................... 8
PLAINTIFFS HAVE STANDING ...................................................................... 13

11

A. The Individual Plaintiffs Have Standing ................................................... 13

12

B. Puente Has Standing................................................................................. 14

III. PLAINTIFFS’ CLAIMS ARE NOT BARRED BY ANY EXHAUSTION

13

DOCTRINE ........................................................................................................ 19

14

A. Administrative Remedies Are Satisfied Or Otherwise Unavailable........... 19

1. Plaintiffs Perez and Stepter Have Exhausted Their Claims, So

15

All Plaintiffs Are Exhausted. ......................................................... 19

16

2. Defendants’ Refusal to Process Grievances, Disregard of Formal Grievance Policy, and Improper Screening Render

17

Administrative Remedies Unavailable ........................................... 20

3. Defendants’ Lack An Emergency Grievance Procedure,

18

Thereby Rendering Administrative Remedies Unavailable ............ 22

19

4. The PLRA Does Not Apply To The Medically Vulnerable Pretrial Subclass Seeking Habeas Relief ........................................ 24

20

5. Prudential Exhaustion of the Habeas Claim Is Inapplicable............ 25

21

B. Plaintiffs Are Not Required to Exhaust State Court Remedies to Pursue §2241 Habeas Relief ..................................................................... 26

22 IV. PLAINTIFFS’ CONSTITUTIONAL AND STATUTORY RIGHTS ARE

BEING VIOLATED ........................................................................................... 28

23

A. Plaintiffs’ Fourteenth Amendment Rights Are Being Violated ................. 28

24

B. Defendants are Violating Plaintiffs’ Eighth Amendment Rights ............... 32

25

C. Defendants are Violating Plaintiffs’ ADA and Rehabilitation Act Rights ....................................................................................................... 33

26 V. PLAINTIFFS ARE SUFFERING IRREPARABLE HARM................................ 35

27 VI. THE BALANCE OF THE EQUITIES ARE IN PLAINTIFFS’ FAVOR............. 37 VII. THE COURT HAS AUTHORITY TO ORDER RELEASE ................................ 37
28

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1 VIII. CONCLUSION................................................................................................... 39

2

TABLE OF AUTHORITIES

3

CASES

4

Albino v. Baca,

5

747, F.3d 1162, 1172 (9th Cir. 2014) ......................................................................... 20

6

Aleknagik Natives, Ltd. v. Andrus,

648 F.2d 496 (9th Cir. 1980)...................................................................................... 25

7

Andres v. Marshall,

8

867 F.3d 1076 (9th Cir. 2017).............................................................................. 20, 21

9

Barfield v. Cook,

10

2019 WL 3562021 (D. Conn. Aug. 6, 2019) .............................................................. 19

11

Beltran-Ojeda v. Doe,

12

No. CV 12-1287-PHX-DGC, 2013 WL 6059242 (D. Ariz. Nov. 18, 2013) ............................................................................................................. 20, 21, 22

13 Brown v. Rison,

14

895 F.2d 533 (9th Cir. 1990)...................................................................................... 25

15

Brown v. Valoff,

16

422 F.3d 926 (9th Cir. 2005)................................................................................ 20, 23

17

Chandler v. Crosby,

379 F.3d 1278 (11th Cir. 2004).................................................................................. 19

18

19

Coal. of Clergy, Lawyers, & Professors v. Bush, 310 F.3d 1153 (9th Cir. 2002).................................................................................... 18

20 E. Bay Sanctuary Covenant v. Barr,

21

No. 19-16487, 2020 WL 3637585 (9th Cir. 2020) ..................................................... 14

22

E. Bay Sanctuary Covenant v. Trump,

23

950 F.3d 1242 (9th Cir. 2020)........................................................................ 14, 15, 16

24

Fletcher v. Menard Corr. Ctr.,

623 F.3d 1171 (7th Cir. 2010).................................................................................... 22

25

Four Seasons Hotels and Resorts, B .V. v. Consorcio Barr, S.A.,

26

320 F.3d 1205 (11th Cir.2003)..................................................................................... 4

27 Freedom From Religion Found. v. Weber,

28

628 F. App'x 952 (9th Cir. 2015) ............................................................................... 18

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1

Gates v. Cook,

2

376 F.3d 323 (5th Cir. 2004)...................................................................................... 19

3

Havens Realty Corp. v. Coleman,

455 U.S. 363 (1982) .................................................................................................. 14

4

Hernandez v. Sessions,

5

872 F.3d 976 (9th Cir. 2017)...................................................................................... 25

6 Int'l Union, United Auto., Aerospace & Agr. Implement Workers of Am. v.

7

Brock,

477 U.S. 274 (1986) .................................................................................................. 17 8

9

Karas v. Marciano, 2017 WL 6816858 (C.D. Cal. Nov. 13, 2017)............................................................ 23

10 Lewis v. Washington,

11

265 F. Supp. 2d 939 (N.D. Ill. 2003).......................................................................... 19

12

Liang v. Ashcroft,

13

370 F.3d 994 (9th Cir. 2004)...................................................................................... 25

14

Massie ex rel. Kroll v. Woodford,

244 F.3d 1192 (9th Cir. 2001).................................................................................... 18

15

16

McBride v. Lopez, 807 F.3d 982 (9th Cir. 2015)................................................................................ 20, 22

17 McPherson v. Lamont,

18

2020 WL 2198279 (D. Conn. May 6, 2020)................................................... 22, 24, 25

19

Nunez v. Duncan,

20

591 F.3d 1217 (9th Cir. 2010).............................................................................. 20, 22

21

Planned Parenthood Arizona, Inc. v. Brnovich,

172 F. Supp. 3d 1075, 1085 (D. Ariz. 2016) (Logan, J.) ................................ 14, 17, 18

22

Puente v. Arpaio, 821 F.3d 1098, 1108 (9th Cir. 2016) ............................................. 15, 16 23

24

Rodriguez v. City of San Jose,

930 F.3d 1123 (9th Cir. 2019).................................................................................... 15

25

Ross v. Blake,

26

136 S. Ct. 1850 (2016)......................................................................................... 19, 20

27

Sapp v. Kimbrell,

28

623 F.3d 813 (9th Cir. 2010)................................................................................ 19, 20

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1 Sierra Club v. Trump, 963 F.3d 874, 883 (9th Cir. 2020) ............................................... 17

2

Torres v. Milusnic,

3

Case No. 2:20-cv-4450-CBM-PVC, Doc. 45 (C.D. Cal. July 14, 2020) ..................... 24

4 Valentine v. Collier, 956 F.3d 797, 804 (5th Cir. 2020)................................................... 35

5

Ward v. Chavez,

6

2009 WL 2753024 (D. Ariz. Aug. 27, 2009), overruled on other grounds by Ward v. Chavez, 678 F.3d 1042 (9th Cir. 2012) .............................................. 24, 25

7 Wilson v. Williams,

8

2020 WL 3056217 ..................................................................................................... 24

9

STATUTES

10 28 U.S.C. § 2241............................................................................................................. 24
11 42 U.S.C. § 1997e........................................................................................................... 19
12 42 U.S.C. § 1997e(a)....................................................................................................... 19
13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 I. INTRODUCTION

2

Defendants congratulate themselves for taking steps “to manage” the spread of

3 COVID-19 “[a]s early as February 2020”—as if taking any action immunizes them from

4 their deliberate indifference. Doc. 28 (Opposition) at 7. Defendants’ policies—which are

5 inadequate in their own right—combined with Defendants’ decision to turn a blind eye

6 toward the implementation of those policies have placed people incarcerated at the

7 Maricopa County jails and jail staff at an unreasonable risk, and will continue to do so

8 absent preliminary injunctive relief from the Court.

9

Indeed, in the short period since Plaintiff-Petitioners and Plaintiff Puente

10 (“Plaintiffs”) moved for an injunction, the number of COVID-19 cases inside the jails has

11 more than doubled. Given that the virus spreads exponentially, it threatens to double again

12 and again. This will continue irreparably harming Plaintiffs, and particularly the medically

13 vulnerable and disabled class members, unless and until injunctive relief is granted.

14 II. EVEN IF DEFENDANTS’ POLICIES WERE ENFORCED—THEY ARE

15

NOT—THEY ARE CONSTITUTIONALLY INSUFFICIENT

16

While Defendants make much of their “extensive” efforts to address the pandemic,

17 their papers merely confirm the inadequacy of these efforts. Defendants tout policies that

18 are not implemented at the jails. And the policies themselves are patently inadequate,

19 failing to adhere to established public health guidelines. Indeed, Defendants fail to meet

20 even the most basic of CDC guidelines—such as creating a separate set of measures

21 specifically to protect the medically vulnerable from being infected. Ex. 11 (Cohen Suppl.

22 Decl.) ¶¶ 27-28. Nor have Defendants put into place numerous other measures included in

23 CDC guidance, including daily temperature and symptoms checks for staff upon entry,

24 symptom monitoring of quarantined individuals to ensure quick detection of people who

25 are infected and symptomatic, proper verbal and written education on COVID-19 for

26 people incarcerated in the jails, or measures to ensure proper cleaning of high touch areas

27 and sanitization of places where people with COVID-19 were housed, amongst numerous

28 other failings. Ex. 11 (Cohen Suppl. Decl.) ¶¶ 30, 43-49, 50-54, 56.

1
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1

A. Differences Between Policies Applicable To Staff And Incarcerated Persons

Confirm That Defendants Are Indifferent To Incarcerated Persons’ Serious

2

Medical Needs

3

Maricopa County’s policies are particularly jarring when the requirements

4 applicable to the staff are compared to those applicable to the incarcerated population.1

5 Staff are purportedly prohibited from entering the jail if they exhibit any COVID-19

6 symptoms and must leave “immediately” if they develop a fever while on the job. Doc. 28

7 at 8-9. Yet incarcerated persons do not have any ability to leave the jail if they develop 8 those same symptoms, and Defendants are actively fighting their release or even

9 temporary enlargement via this lawsuit. This makes social distancing all the more

10 important—a step which Defendants have yet to implement. See Ex. 11 (Cohen Suppl.

11 Decl.) ¶¶ 37-42.

12

Even within the jail, there is a significant gap between the policies designed to

13 protect staff versus those designed to protect the incarcerated. Mask policies underscore

14 these gaps. As of June 29, 2020, MCSO2 requires staff to wear masks “in common areas

15 in the jail.” Doc. 28 at 9. All staff have purportedly received N95 masks with machine 16 washable inserts. Id. In stark contrast, incarcerated persons are not required to wear any

17 masks—much less N95 masks—even in common areas. Id. at 16-17. Instead, they are 18 merely “instructed” to wear, thin, surgical paper masks in limited situations, such as when

19 they attend court, receive medical care, or leave their housing unit. Id. While MCSO has 20 recently provided paper masks to people incarcerated at 4th Avenue Jail weekly, most 21 other facilities appear to provide paper masks infrequently. Id. And unlike the N95 masks

22 given to staff, the masks given to incarcerated persons are intended only for a single use 23 and generally must be replaced daily to be effective. Doc. 12 (R. Cohen Decl.) ¶¶ 119-

24 120; Ex. 11 (Cohen Supp. Decl.) ¶ 51. Although incarcerated persons are purportedly

25 “advised on the most effective ways to ensure the mask stays clean,” an internal MCSO

26
1 Plaintiffs in no way suggest that the policies applied to jail staff are in fact sufficient 27 under public health guidelines. Further, Plaintiffs have no basis at this juncture to assess
whether the applicable staff policies are being implemented. 28 2 All citations to “MCSO” refer to Maricopa County Sherriff’s Office.

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1 memo to staff itself recognizes that “[d]isposable face mask [sic] can only be used once.”

2 Doc. 28 at 17; Doc. 29-1 at MCSO-FENTY-000362.

3

Moreover, Defendants concede that during transportation incarcerated persons only

4 receive a paper mask if they complain of symptoms and then a staff member determines

5 that there is a “high suspicion of possible COVID-19 infection.” Doc. 28 at 11. This

6 concession is particularly stunning as Defendants are aware that there is a very real risk of

7 “new arrival asymptomatic inmates infecting the established population.” Id. at 11-12. Yet

8 “new arrival asymptomatic inmates” are apparently not required to wear a mask at the

9 time of arrival. Id.

10

Defendants’ response also reveals gross differences between policies pertaining to

11 staff and incarcerated persons regarding sanitation. On March 26, 2020, Defendants

12 purportedly enacted a policy designed to “implement extra cleaning and sanitation of

13 vehicles, work areas, high-touch areas in the offices, briefing rooms, or break rooms.”

14 Doc. 28 at 15. Critically, the only parts of the jails subject to janitorial cleaning are places

15 exclusive to staff use or where infected staff have worked, and janitorial staff are required

16 to wear masks and gloves while performing such work. Doc. 29 (Roska Decl.) ¶¶ 42-51;

17 Doc 29-1 at MCSO-FENTY000353, 394-395. Defendants also require cleaning schedules

18 and logs to ensure the implementation of cleaning policies in staff areas and vehicles—a

19 measure not replicated for areas used by the incarcerated population. Doc 29-1 at MCSO-

20 FENTY000415-416. In other words, extra cleaning has been ordered for the areas

21 frequented by staff but not the incarcerated. People incarcerated in the jails are left to fend

22 for themselves and required to clean common areas—even areas recently vacated by

23 people who are suspected or known to have had COVID-19—with limited disinfectant, no

24 gloves, and without other basic cleaning supplies. Ex. 5 (Perez Supp. Decl.) ¶ 11; Ex. 10

25 (Tequida Supp. Decl.) ¶ 11; Ex. 4 (Ochoa Supp. Decl.) ¶ 8; Ex. 3 (Fenty Supp. Decl.)

26 ¶¶ 5, 15, 16; Ex. 8 (Stepter Supp. Decl.) ¶ 8; Ex. 1 (Avenenti Supp. Decl.) ¶¶ 10; Ex. 9

27

28

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1 (Suggs Supp. Decl.) ¶ 3; Doc. 28 at 15.3 Defendants further admit that hand sanitizer is

2 made available to staff but not to the incarcerated population. Id. at 16. To justify this

3 discrepancy, Defendants suggest hand sanitizer is not safe in a detention facility. Id. at 16.

4 But the CDC recommends its use in detention facilities to combat COVID-19 and at least

5 30 correctional departments have allowed hand sanitizers despite purported safety

6 concerns. See Doc. 12 (R. Cohen Decl.) ¶ 125. Moreover, any safety concerns about hand

7 sanitizer pale in comparison to the fatal risks created by the uncontrolled spread of the

8 virus. Id.

9

Finally, there are significant differences in the quantity and quality of education

10 provided to staff and incarcerated persons. For staff, efforts to improve COVID-19

11 education began in March 2020. Doc. 28 at 8. Incarcerated persons, on the other hand,

12 have not received these “detailed memoranda.” Id. Instead, they appear to have only

13 recently been given access to materials that provide critical information about COVID-19

14 symptoms and precautions—which tellingly do not mention social distancing—”via the

15 inmate tablet system,” a mode of communication that will be inadequate for people who

16 are illiterate or not adept at technology. Doc. 28 at 8; Doc 29-1 at MCSO-FENTY000381.

17 Moreover, while Defendants claim that detention officers provide frequent verbal

18 communications about the need to wear masks and remain socially distant and that people

19 may receive similar counseling during medical visits, Doc. 28 at 9, Defendants fail to

20 counter the consistent accounts of Plaintiffs and declarants that no such verbal

21 communications or counseling is occurring. Ex. 5 (Perez Supp. Decl.) ¶ 12; Ex. 10

22 (Tequida Supp. Decl.) ¶ 13; Ex. 4 (Ochoa Supp. Decl.) ¶¶ 2, 3; Ex. 3 (Fenty Supp. Decl.)

23 ¶¶ 20, 21; Ex. 8 (Stepter Supp. Decl.) ¶¶ 13, 14; Ex. 1 (Avenenti Supp. Decl.) ¶¶ 10; Doc.

24 3 Defendants suggest that cleaning supplies are available to both incarcerated persons and

25

staff. Doc. 28 at 15. But there is no evidence that the staff are assisting prisoners cleaning common spaces. Moreover, though the Roska Declaration points to a variety of supplies

26

that MCSO has in its possession, it does nothing to identify which of those supplies incarcerated people have access to versus staff. Doc. 29 (Roska Decl.) ¶ 28. In any event,

27

if the Court is inclined to weigh the evidence and make credibility determinations in ruling on the preliminary injunction, then Petitioners respectfully request a hearing. See

28 Four Seasons Hotels and Resorts, B .V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1211.

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1 8-1 (Boykins Decl.) ¶ 27; id. (Player Decl.) ¶ 14; id. (Avenenti Decl.) ¶ 4; id. (Fenty

2 Decl.) ¶ 20; id. (Crough Decl.) ¶ 25; id. (Ochoa Decl.) ¶ 18; id. (Perez Decl.) ¶¶ 14, 27; id.

3 (Scroggins Decl.) ¶ 19; id. (Stepter Decl.) ¶ 18; id. (Tequida Decl.) ¶ 24. Defendants also

4 insist that there are signs posted within the jails with educational information specific to

5 COVID-19 (which Plaintiffs have not seen). Doc. 28 at 8. And those signs likewise do not

6 mention social distancing. Doc. 29 (Roska Decl.) ¶ 75. In sum, nothing suggests

7 Defendants have created a formal COVID-19 education curriculum for its incarcerated

8 population.

9

Defendants could easily implement the same policies and conduct for the

10 incarcerated population as they do for the staff, but have chosen not to, demonstrating

11 their deliberate indifference.

12

B. MCSO’s Policies Are Inadequate For Protecting Medically Vulnerable And

13

Disabled Subclass Members

There is no dispute that certain persons are particularly susceptible to severe illness 14

and death should they contract COVID-19 because of their age, disability, and/or medical 15

histories. Doc. 12 (R. Cohen Decl.) ¶ 24. The risks and injuries caused by Defendants’ 16

policies are particularly severe for these people.4 Id.¶ 78. 17

The CDC expressly recommends that the medically vulnerable “should not be 18

cohorted with other quarantined individuals.” Doc. 12 (R. Cohen Decl.) ¶ 86. Yet all new 19

intakes are placed in Cohort Housing for 14 days regardless of the extreme danger that 20

this procedure places on medically vulnerable individuals. Doc. 28 at 12. Additionally, 21

Defendants do not set forth any practice for identifying medically vulnerable individuals 22

or ensuring that they are removed from quarantined housing units to keep them separate 23

from potentially contagious persons. See Doc. 28 at 12-13. The only practice that is 24

arguably specific to medically vulnerable persons is that some persons under medical 25

26 4 For example, MCSO treats people as being medically vulnerable due to their age only if they are age 60 or older. As set forth in the declaration of Plaintiffs’ expert, Dr. Robert
27 Cohen, which Defendants completely ignore, any reasonable definition of “medically vulnerable” persons must include all people aged 50 or older. Doc. 12 (R. Cohen Decl.) ¶
28 84.

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1 observation may be moved to the infirmary if they are suspected to have COVID-19 or

2 test positive. Doc 22 at 13-14. But there does not appear to be a set criteria for

3 determining when someone should be moved to the infirmary. Nor do Defendants do daily

4 or increased temperature checks or symptom screening in order to allow for earlier

5 detection of COVID-19 in the medically-vulnerable.

6

Defendants repeatedly mention that the jails’ population has decreased due to a

7 purported effort “to reduce the inmate population in all of its jail facilities by accepting

8 fewer new intakes.” Doc. 28 at 6. But there is no indication that a person’s age, medical

9 history, or disability status has played any role in this “effort” to reduce the jail’s

10 population, nor does this “effort” do anything for existing incarcerated persons. Ex. 11

11 (Cohen Supp. Decl.) ¶ 27. Defendants do not suggest that they are specifically making an

12 effort to reduce the proportion of medically vulnerable or disabled persons in the jails.

13

C. Defendants Concede That MCSO Policies, Even When Enforced, Do Not

14

Allow Social Distancing

Defendants concede that social distancing is not possible in their jails. Doc. 28 at 15

17. Incarcerated persons are simply “encouraged to practice social distancing” when 16

possible, a claim that is itself unsupported. Id. Defendants appear to take pride in the fact 17

that they lack a policy literally “forcing” people to remain within six feet of each other, 18

but they also have failed to implement policies or practices that would allow people to 19

maintain six feet of distance. Id. Indeed, several Plaintiffs have stated that they are 20

required to line up multiple times a day to receive food and medicine, and another 21

Plaintiff recounts being told to line up for COVID-19 testing. Ex. 4 (Ochoa Supp. Decl.) 22

¶¶ 3, 9; Ex. 5 (Perez Supp. Decl.) ¶ 10; Ex. 10 (Tequida Supp. Decl.) ¶ 10; Ex. 3 (Fenty 23

Supp. Decl.) ¶¶ 14, 17; Ex. 8 (Stepter Supp. Decl.) ¶ 8; Ex. 1 (Avenenti Supp. Decl.) ¶¶ 4, 24

6. 25

Instead of enacting a policy allowing for social distancing, Defendants point to a 26

smaller jail population as a proxy for social distancing. Doc. 28 at 3-6. But, importantly, 27

Defendants do not explain how this translates into social distancing. See Ex. 11 (Cohen 28

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1 Supp. Decl.) ¶¶ 37-38. Nothing in the Roska declaration provides descriptions of the

2 current occupancies in individual units or any efforts to redistribute persons across

3 housing units—many of which remain at or near capacity notwithstanding the reduced jail

4 population—to allow for better social distancing. Id. Nor can it, as Defendants admit that

5 incarcerated persons continue to live in dormitories or have cellmates. Doc. 28 at 3-6.

6

Defendants instead take the incredible position that it is somehow safe for COVID-

7 19 negative incarcerated persons to sleep in the same cells as COVID-19 positive people

8 because “solid metal beds provide an adequate barrier” to prevent transmission of the

9 virus. Id. at 17. This is not supported by any known science and defies common sense.

10 The fact that the bunk beds are made of metal does nothing to mitigate the fact that

11 cellmates are in constant close proximity with each other, touch the same common

12 surfaces as each other, and breathe the same air in the exceptionally limited common areas

13 of each cell, including while sleeping. Ex. 11 (Cohen Supp. Decl.) ¶ 40. For this reason,

14 the CDC recommends that bunks be reassigned to individuals to maintain at least 6 feet of

15 distance in all directions, regardless of the material components of bunks, and also

16 recommends that incarcerated persons sleep head to foot. Doc. 12 (R. Cohen Decl.) ¶ 95.

17

D. MCSO’s New Testing Scheme Is Inadequate

18

Seven days after filing their response, Defendants filed a Notice of Supplemental

19 Facts to inform the Court (and Plaintiffs) that they would test all incarcerated persons at

20 the Maricopa County jails for COVID-19. See generally Doc. 36 (Phillips Supp. Decl.).

21 But there’s a catch. The testing will take five weeks to complete. While Defendants’

22 timing is curious, given just days ago their response denigrated Plaintiffs for requesting

23 universal testing, the decision to broaden testing at the Maricopa County jails is

24 welcome—and constitutionally required. Regrettably, the new testing scheme is not just

25 insufficient, but further evidence of Defendants’ deliberate indifference. Given the current

26 outbreak at the facility, delaying testing across a five week period will allow the virus to

27 ravage the remaining facilities while Defendants process results from the first facilities to

28

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1 be tested. Ex. 11 (Cohen Supp. Decl.) ¶ 23. Indeed, in the approximately five week period

2 from the filing of the complaint to this reply, the number of cases has nearly quadrupled 3 from 313 to 1,274.5 Critically, Dr. Phillips’ declaration does not explain why the testing

4 plan will span five weeks, especially when the subcontractor lab selected by Defendants’

5 contractor has the capacity to process 1200 samples per day. Doc. 36 (Phillips Supp.

6 Decl.) ¶ 18, MCSO-FENTY000483. And notably absent from Defendants’ new testing

7 scheme is any intention to prioritize testing the medically vulnerable. Ex. 11 (Cohen Supp.

8 Decl.) ¶ 23. Accordingly, medically vulnerable people will continue to be at an increased

9 risk of serious illness solely because they do not reside in Defendants’ facility of choice.

10 Id.

11

Moreover, the plan appears to delay testing of newly detained persons until after all

12 of the other jail facilities are tested. Doc. 36 (Phillips Supp. Decl.) ¶ 26. Thus, new intakes

13 will be cohorted together while awaiting the opportunity to receive a COVID-19 test. Id.

14 This is dangerous, as it allows for the transmission of the virus amongst the cohorted

15 population for weeks—and perhaps, more concerning, to the general population. Ex. 11

16 (Cohen Supp. Decl.) ¶ 24. Because each new intake has the potential to bring the virus

17 into the jails, any reasonable testing plan must prioritize testing newly detained persons to

18 stymie new points of entry of the virus into the jails. Id. ¶ 25.

19

Finally, the testing is unreasonable because it does not mandate testing of all staff

20 members. On a daily basis, staff members travel to the jails from their communities—

21 which are also experiencing massive COVID-19 outbreaks. Id. So each day they come to

22 work, staff serve as potential carriers of the virus into the jails. Id. Thus, any reasonable

23 and comprehensive testing scheme must include testing of the staff members.

24

E. Defendants Ignore the Gaps Between Stated Policy and Actual Practice

25

To compound problems, Defendants’ practices are not only deficient as designed

26 but especially deficient as implemented. Yet Defendants conflate policy with reality. See

27 5 Compare Doc. 1 with COVID-19 in County Jails, MARICOPA COUNTY, available at
28 https://www.maricopa.gov/5574/COVID-19-in-County-Jails (accessed July 29, 2020).

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1 Doc. 28 at 6-17. Defendants’ response does not address the implementation of their

2 policies. The below examples reveal why:

3 Detention Officers Are Risking Cross-Contamination Between Units

4

• According to Defendants, detention officers “are assigned to work in the same

posts in order to prevent cross-contamination of housing units.” Doc. 29 (Roska

5

Decl.) ¶ 84.

6

• In reality, Detention Officers and medical staff move freely from quarantined

7

housing units to non-quarantined units without proper removal of PPE. See Ex. 9

(Suggs Supp. Decl.) ¶ 8 (“I also see detention officers move between the

8

quarantine unit and our unit, sometimes going into ours before going into the

9

quarantine unit and sometimes going from the quarantine unit into ours. I have

never seen them change their gloves when moving between the quarantine unit and

10

ours, and I have even seen detention officers go into the quarantine unit without a

11

mask on and come into ours. Also, we share brooms with the quarantine unit, and

the detention officers bring them back and forth between the two units.”); Ex. 7

12

(Scroggins Supp. Decl.) ¶ 13 (“For about the month, the pod across from ours has

13

been on quarantine. The door to the quarantine pod is about four feet away from

the door to our pod. . . . Frequently, jail staff opens the door to our pod and the

14

quarantine pod at the same time. I am worried that because the virus is airborne, it

15

could easily spread to our pod when the doors are both open.”); Ex. 5 (Perez Supp.

Decl.) ¶ 8 (“Since early July, almost every day, we have had new guards in our pod

16

that I have never seen before. This worries me because the guards move from pod

17

to pod in Towers without washing their hands or changing gloves and could spread

the virus to our pod. Frequently, I see a guard walk through a pod which had

18

confirmed positive COVID-19 cases and is under quarantine straight to our pod

19

without changing gloves or their washing hands.”); Ex. 10 (Tequida Supp. Decl.) ¶

7 (“Currently, we are still under quarantine. . . . The guards still walk between pods

20

frequently without changing gloves or washing their hands.”); Ex. 2 (Crough Supp.

21

Decl.) ¶ 6 (“I noticed that guards sometimes wear full body suits, including

facemasks. When I asked why, the guards said that they wear these suits when they

22

enter cells of people who have tested positive or are suspected of having COVID-

23

19. However, the guards continue to wear these suits after they leave these cells

and come to hand out meals, potentially contaminating others.”). 24

25 Medical Staff and Detention Officers Routinely Fail To Wear Masks

26

• According to Defendants: “As of May 2020, all CHS staff are required to wear

masks while on duty. . . . Detention officers are instructed to wear masks at all

27

times while inside the common areas of the jail or anywhere that inmate interaction

28

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1

could take place, or when transporting inmates in vehicles.” Doc. 28 at 9.6

2

• In practice, medical staff and detention officers routinely failed to wear masks after

those policies were put into place, and continue to be inconsistent in wearing masks

3

or fail to properly wear them even now. See Doc. 8-1 (Dupont Decl.) ¶ 10 (“One of

4

the medical staff members who comes to our dorm to distribute medications each

day does not wear a mask when doing so. He distributes medications to other

5

dorms as well.”); id. (Boykins Decl.) ¶ 26 (“Before the quarantine, the detention

6

officers basically never wore masks. Now, more detention officers wear the masks,

but they still do not wear them almost half of the time.”); id. (Fenty Decl.) ¶ 15

7

(“[E]every day I still see officers wearing the masks around their necks or on their

8

chins.”); Ex. 3 (Fenty Supp. Decl.) ¶ 13 (“The officers all wear masks while in the

pod. However, because there is no intercom system, officers pull down their masks

9

to shout when they need to address a group of prisoners.”); Doc 8-1 (Scroggins

10

Decl.) ¶ 18 (“Guards are still not consistent in wearing their masks. Some guards

wear them all the time, and some never wear them or wear them pulled down

11

below their chin so the masks are not covering their mouth and nose.”); id. (Perez

12

Decl.) ¶¶ 17, 26 (“Some of the guards who serve us food only wear their mask

around their chin. . . . Some guards wear their mask and some never wear them.

13

Some guards only wear their masks under their chin so we can see their mouth and

14

nose.”); Ex. 5 (Perez Supp. Decl.) ¶ 6 (“On July 14, 2020, I saw the medical

provider at the medical unit and we sat less than six feet from each other. I was

15

wearing a mask, but hers was pushed down below her chin and it was not covering

16

her mouth or nose.”); Doc. 8-1 (Suggs Decl.) ¶ 23 (“I often see detention officers in

my unit without masks. All of the detention officers now have masks, but some just

17

leave the mask hanging on one ear or wear it under their chin. Even amongst those

18

officers who actually wear the mask, several of them take the mask off when

speaking to us, which does not seem safe and defeats the purpose of wearing the

19

mask.”); Ex. 9 (Suggs. Supp. Decl.) ¶ 5 (“Detention officers are still inconsistent

20

about wearing their masks, and often don’t wear them at all, or wear them below

their chin or just hang them on their ear. Often the officers wearing them have them

21

over their mouths and do not cover their noses.”); Ex. 1 (Avenenti Supp. Decl.) ¶ 7

22

(“Detention officers normally wear masks now. However, they pull down the mask

to speak loudly to groups of prisoners.”). 23

24 Prisoners Have Limited Access to Masks

25

• According to Defendants: “If an inmate needs a new mask due to loss or damage,

they simply need to ask, and they will receive one.” Doc. 28 at 16.

26

• In practice, requests for new masks are typically rejected. See Doc. 8-1 (Boykins

27

28 6 Emphasis added. Throughout brief, all emphases added unless stated otherwise.

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1

Decl.) ¶ 24 (“They told us that we would not be able to get another [mask] and sent

2

us a memo on the tablet about how to wash it. My mask is dirty and smells. I have asked for another one and the detention officers said no, and I know that other

3

people in my pod received the same response when they have asked for a new

4

mask, even though we were on quarantine. . . . I still wear my mask because I am afraid of catching the virus, but most of the other inmates do not wear their masks

5

because they are now old and ruined[.]”); id. (Crough Decl.) ¶¶ 20-21 (“One strap

6

on my mask broke and I was forced to continue to use it for about 60 days. . . . We were told through our tablets that if our mask was damaged or lost, we would not

7

get another one.”); Ex. 3 (Fenty Supp. Decl) ¶ 13 (“I have received three masks

8

since my arrival at Saguaro. My mask only lasts about three days because it becomes soiled and begins to stink due to condensation from my breath. I have

9

asked for an additional mask and was told that no masks were available.”); Ex. 2

10

(Crough Supp. Decl.) ¶ 7 (“I have received two masks since my last declaration on June 26, 2020. A guard told me that the jail would provide masks every Saturday.

11

No masks were distributed on Saturday, July 25th. I requested an additional mask

12

because the strap on mine was broken, but that request was denied.”).

13 Even Prisoners Exposed to COVID-19 Are Denied Prompt Testing

14

• According to Defendants: “Starting the week of June 1, 2020, mass COVID-19

testing of inmates in quarantine status commenced. In addition, all quarantine

15

status inmates are offered COVID-19 testing on the next business day after an

16

inmate in the housing unit tests positive for COVID-19 and on (or after) day 14 of

quarantine.” Doc. 28 at 14.

17 • In practice, prisoners with known exposures to COVID-19 are not promptly tested.

18

See Doc. 8-1 (Boykins Decl.) ¶¶ 7-9, 13 (“On May 15, 2020, my pod was put on

19

quarantine after the person I mentioned above from my pod got sick with COVID-

19. . . . When he got sick, they just removed him from the pod. . . . About a week

20

and a half into the quarantine, someone in our pod got sick. Medical staff came to

21

our pod and removed him. Again, they did not do any cleaning of the infected

person’s cell or bed area. A few days after they removed him, medical staff came

22

and took our temperature for the first time. . . . Even though they never tested

23

us for COVID-19, we were officially removed from quarantine on June 9th.”).

24 Housing Areas and Day Rooms Are Not Configured For Social Distancing

25

• According to Defendants: “In addition, housing units, pods, and day room areas in

all of the jails are large and allow ample space for inmates to socially distance,

26

particularly when the jail populations are so far below their design capacities.”

27

Doc. 28 at 17.

28

• In reality, Defendants thwart social distancing. See Doc. 8-1 (Boykins Decl.) ¶ 14

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1

(“I am not able to social distance myself from my cellmates and others in my pod. .

2

. . People in my pod cannot keep six feet apart, either in our rooms, in the recreation area, or in the day room.”); id. ¶ 15 (“The pods contain a day room with

3

bolted tables and bolted chairs that we share, and there are two operational pay

4

phones and one operational video visit machine. The day room is about 60 feet by 20 feet.”); id. (Dupont Decl.) ¶ 5 (“The bunks are bolted to the floor and are three

5

tiers high, mostly arranged head-to-head, meaning it is impossible not to be in

6

close proximity to neighbors while in our bunks or sleeping. The bunks touch each other, so separation from others can be a matter of inches.”); id. (Ochoa Decl.) ¶ 8

7

(“In each set of bunks, the bunks are about three feet apart vertically, and there is

8

not enough room to sit up. The bunk sets are placed along the walls, and all the bunk rows are connected head to toe. The metal on one set of bunks touches the

9

metal on bunks to either side. You can easily touch someone in the bunks next to

10

yours. There are two other women in my bunk set, three women in the bunk set on my left, two women in the bunk set on my right, and three women in the bunk set

11

in front of ours, which also touches my bunk. . . . It is impossible for people in the

12

dorm to keep six feet apart. Every bunk set has at least two women and many of them have three women per set. Our sleeping arrangements are not situated in a

13

way that would help with social distancing.”); id. (Lewis Decl.) ¶ 8 (“We were also

14

crowded in the day room and other shared spaces. The day room was about 20 feet by 30 feet, and had six tables with four chairs at each, all of which were bolted into

15

the floor, so you had to sit about a foot apart.”); Ex. 3 (Fenty Supp. Decl.) ¶ 11 (“I

16

am not able to socially distance myself from others in my pod, endangering both myself and my fellow prisoners. People in my pod cannot keep six feet apart in our

17

bunk areas or in the common areas of the pod. . . . The bunks are in contact with

18

each other, and we sleep head-to-foot, though it is not required by the jail. The bunk at the foot of my bed is about six inches away from and the bunk to my side

19

is about two feet away. Top bunks are approximately three feet above the bottom

20

bunks. There is only enough room for one person to walk down the middle of the bunks.”); Ex. 8 (Stepter Supp. Decl.) ¶¶ 7-8 (“I remain unable to socially distance

21

myself from my cellmate and others in my pod. People in my pod cannot keep six

22

feet apart, either in our cells or in the day room. . . . There still is no social distancing in the day room. Staff members have not explained the importance of

23

social distancing to prisoners. . . . People still wait in lines for food, standing right

24

next to each other, and then sit close to each other at eight tables in the pod. Chairs at the table are bolted down.”); Ex. 1 (Avenenti Supp. Decl.) ¶ 4 (“Prisoners line up

25

closely together at mealtimes. The detention officers do not instruct prisoners to

26

stay six feet apart from each other. Prisoners sit closely together to eat too. There are six tables with eight chairs each for all 72 people in my pod. The tables and

27

chairs are bolted down, so I cannot move them in order to socially distance.”).

28

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1 Medical Units Are Not Routinely Sanitized

2

• According to Defendants: Medical observation cells receive full sanitization and,

even then, only after someone “vacates [the] cell prior to use by a new occupant.”

3

Doc. 28 at 15-16.

4

• In reality, Plaintiffs have noted that medical observation cells are not cleaned

5

consistently. Ex. 3 (Fenty Supp. Decl.) ¶ 5 (“When they opened [the Medical

Observation cell], there was trash in the cell, and it was obvious that the cell had

6

not been cleaned or disinfected after its prior occupant was moved.”); Doc. 8-1

7

(Suggs Decl.) ¶ 7 (“When I arrived to the isolation cell, it was filthy. The floors

were covered in dust and trash was laying inside the cell, including orange peels on

8

the floor, empty milk cartons on the top bunk bed, and a bag filled with trash. I

9

asked the detention officer for cleaning supplies, but was given none until my third

day in the cell. On the third day, the detention officer gave me a broom and

10

disinfectant spray. Since they did not give me any rags or paper towels, I used

11

toilet paper to clean the cell, and I was not given gloves.”); id. (Avenenti Decl.) ¶ 8

(“The [Medical Observation] pod was clearly dirty and had not been cleaned, and

12

we had no means of cleaning it ourselves.”); id. (Lewis Decl.) ¶ 19 (“The [Medical

13

Observation] pod was filthy, and had apple cores and empty milk cartons on the

floor when we got there.”). 14

15 Prisoners Have Limited Access to Soap and Water

16

• According to Defendants: “Inmates have unimpeded access to soap and water.”

Doc. 28 at 16.

17

• In practice, some incarcerated people have limited access to soap and water. See

18

Doc. 8-1 (Avenenti Decl.) ¶ 9 (“I received no soap or toothpaste at 4th Avenue, nor

was I permitted to shower, until June 11th (almost a week after my arrival), and

19

then not again until June 18th.”); id. (Crough Decl.) ¶ 17 (“Drinking water must be

20

taken from the shower as the water pressure in the [cell] sink is insufficient to push

water above the spigot head[.]”). Some Plaintiffs have been denied commissary,

21

preventing them from buying additional cleaning supplies.

22

23 II. PLAINTIFFS HAVE STANDING

24

A. The Individual Plaintiffs Have Standing

25

Defendants, who have a single policy applicable to each of its jails, nevertheless

26 contend that Pretrial Plaintiffs do not have standing to challenge the conditions at 1280

27 Jail, and that Post-Conviction Plaintiffs do not have standing to challenge the conditions at

28 Towers and Estrella jails, because neither group is alleged to be present at those facilities.

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1 Doc. 28 at 28-29. But regardless of the conviction status of each Plaintiff, there is a

2 Plaintiff incarcerated at each of the five Maricopa County jails. Moreover, the Plaintiffs’

3 underlying injuries are the same regardless of the specific facility in which they are

4 imprisoned. Plaintiffs adequately allege their constitutional rights are violated by the same

5 course and conduct by Defendants “across the jails.” Doc. 1 (Complaint) ¶ 2. Because

6 COVID-19 is easily transmitted across facilities—a fact Defendants do not contest—

7 Plaintiffs alleged that, for example: “Detention officers routinely move between pods or

8 units within the jails and do not change or disinfect gloves before entering a pod and often

9 do not wear masks.” Id. ¶ 158. Likewise, “incarcerated persons are transported between

10 jails and to court in vehicles with packed seating and no social distancing, regularly

11 chained together, sitting shoulder to shoulder without masks.” Id. ¶ 105. Therefore, all

12 Plaintiffs have standing to challenge conditions at all the Maricopa County jails,

13 regardless of which facility they are in, because the spread of COVID-19 at any facility

14 constitutes a “‘substantial risk’ that the harm will occur” to them. Planned Parenthood

15 Arizona, Inc. v. Brnovich, 172 F. Supp. 3d 1075, 1085 (D. Ariz. 2016) (Logan, J.)

16 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013)).

17

B. Puente Has Standing

18

“Organizations can assert standing on behalf of their own members, . . . or in their

19 own right.” E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1265 (9th Cir. 2020)

20 (citations omitted). Here, Puente has standing both in its own right (organizational

21 standing) and standing on behalf of its members (associational standing)—either one of

22 which is sufficient.

23

Organizational Standing. As the Supreme Court has recognized, “concrete and

24 demonstrable injury to [an] organization’s activities” is sufficient to confer Article III

25 standing. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). The Ninth Circuit

26 has consistently held that organizations have standing to sue “by showing that the

27 defendant’s conduct resulted in a diversion of its resources and frustration of its mission,

28 or caused a substantial loss in organizational funding.” E. Bay Sanctuary Covenant v.

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1 Barr, --F.3d--, 2020 WL 3637585, at *8 (9th Cir. July 6, 2020) (quotations and citations

2 omitted). See also Rodriguez v. City of San Jose, 930 F.3d 1123, 1135 n.10 (9th Cir. 2019)

3 (recognizing that under current Ninth Circuit precedent, “an organizational plaintiff’s

4 expenditure of resources can be sufficient to establish standing”). “To determine whether

5 organizational standing requirements have been satisfied, we conduct the same inquiry as

6 in the case of an individual: Has the plaintiff alleged such a personal stake in the outcome

7 of the controversy as to warrant his invocation of federal-court jurisdiction?” E. Bay

8 Sanctuary Covenant v. Trump, 950 F.3d at 1265 (quotations and citation omitted).

9

Defendants’ contention that Puente only presents an “abstract interest that the

10 Supreme Court rejected as insufficient to confer standing,” Doc. 28 at 30, ignores the vast

11 majority of Puente’s allegations. Plaintiffs allege that “as a result of Defendants’ failures

12 to adequately protect individuals incarcerated at the Maricopa County jails from the

13 dangers of COVID-19, Puente has launched a full-fledged public campaign to support

14 incarcerated people at the Maricopa County jails and raise public awareness about

15 COVID-19 for incarcerated people and their families.” Doc. 1 (Complaint) ¶ 18. “This

16 effort has come at the expense of other programming, requiring Puente to divert resources

17 to this campaign while scaling down other campaigns.” Id. Plaintiffs even provided the

18 Court with an itemized breakdown of the “significant time and resources” Puente has

19 expended, including: “setting up a hotline to monitor conditions inside of the jails and

20 respond to the concerns of incarcerated people and their families, organizing regular

21 protests, creating petitions, drafting letters to public officials, and producing

22 communications materials.” Id. “Absent Defendants’ failure to protect the health of

23 incarcerated persons at the Maricopa County jails, Puente would not need to spend these

24 resources and cut back programming and staff to support incarcerated people during this

25 pandemic.” Id.

26

When confronted with similar circumstances, other courts in this district have held

27 that Puente has the very standing they seek to assert here. In Puente v. Arpaio, the court

28 evaluated whether Puente had standing to pursue claims on behalf of constituents who had

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1 a credible threat of prosecution. 76 F. Supp. 3d 833, 851 (D. Ariz. 2015), vacated in part

2 and remanded on other grounds, 821 F.3d 1098, 1108 (9th Cir. 2016). In finding that

3 Puente had direct standing, the Court determined:

4

Puente Arizona has established standing under this test. The declaration of

5

Carlos Garcia, the executive director of Puente, establishes that Puente is a

community-based organization with more than two-hundred members, many

6

of whom are unauthorized aliens. Doc. 30–4. Puente serves its members

7

through English classes, “know-your rights workshops,” and other

educational programs. Mr. Garcia knows many members who have used false

8

information to obtain employment and who face prosecution under the

9

identity theft laws. Mr. Garcia’s declaration shows that enforcement of the identity theft laws has injured Puente Arizona in two ways.

10 Id. Moreover, the district court found that “enforcement of the identity theft laws has

11 injured Puente Arizona[,]” including because “Puente has diverted substantial resources to

12 respond to the workplace raids through which the MCSO has enforced the identity theft

13 laws.” Id. (citation omitted). “These are the kinds of injuries that the Ninth Circuit has

14 found sufficient to confer direct standing on an organization.” Id.

15

The same reasoning applies with equal force here. Puente’s work “includes

16 programs and advocacy on behalf of detained people across Arizona.” Doc. 1

17 (Complaint). Puente also “launched a full-fledged public campaign to support incarcerated

18 people at the Maricopa County jails and raise public awareness about COVID-19 for

19 incarcerated people and their families.” Id. As a result “Puente has expended significant

20 time and resources,” which has “come at the expense of other programming” and

21 “require[es] Puente to divert resources[.]” Id. Under Puente v. Arpaio, Puente clearly has

22 direct standing.

23

Defendants also claim that Plaintiffs failed to allege that Puente “was left with no

24 choice but to divert significant resources in response to the alleged constitutional

25 …violations.” Doc. 28 at 31. First, there is no doctrinal requirement that Puente be “left

26 with no choice” between turning off the lights or diverting resources to mitigate the

27 damage done by Defendants. Second, even if this were a requirement, Puente has more

28

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1 than demonstrated it has been forced to expend resources to counteract the injury. If it did
2 not, for example, “launch[] a full-fledged public campaign to support incarcerated people
3 at the Maricopa County jails,” and “set[] up a hotline to monitor conditions inside of the
4 jails and respond to the concerns of incarcerated people and their families,” the
5 community it serves would be less equipped to handle the COVID crisis. And while
6 organizational standing need not involve matters of life-or-death, this one does.
7 Defendants’ notion, therefore, that Puente “manufacture[d] its own injury” by creating a
8 public health campaign in the middle of a pandemic fundamentally misunderstands
9 Puente’s mission, and the idea that such a campaign is “voluntary” strips that word of all
10 meaning. Doc. 28 at 31.
11

12

Likewise, Defendants’ contention that Puente’s mission is not frustrated by

13 Defendants’ deliberate indifference is off-base. Puente’s “aim [is] to develop, educate, and

14 empower communities, to enhance the quality of life of immigrants, and to advocate on

15 behalf of immigrants,” which involves providing “free English classes, media trainings,

16 know-your-rights-workshops, health and wellness training, educational programs for

17 children, and other services to the community.” Doc. 1 (Complaint) ¶ 18. Puente simply

18 cannot advance its mission of providing education and resources to better the health and

19 well-being of the community while also ignoring COVID-19’s rapid spread inside

20 Maricopa County jails. Providing its members with the resources they need to protect

21 themselves and their families is perfectly consonant with Puente’s mission.

22

Associational Standing. Puente also has associational standing because of “injury

23 to [its] members.” Int’l Union, United Auto., Aerospace & Agr. Implement Workers of

24 Am. v. Brock, 477 U.S. 274, 281 (1986) (citation omitted); see also Brnovich, 172 F.

25 Supp. 3d at 1090 (Logan, J.) (collecting cases for proposition and finding plaintiff had

26 standing). “An organization has standing to sue on behalf of its members when ‘its

27 members would otherwise have standing to sue in their own right,’ and when ‘the interests

28 it seeks to protect are germane to the organization’s purpose.’” Sierra Club v. Trump, 963

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1 F.3d 874, 883 (9th Cir. 2020) (quoting United Food and Commercial Workers Union

2 Local 751 v. Brown Grp., Inc., 517 U.S. 544, 553 (1996)).

3

Defendants argue that Puente cannot demonstrate standing because none of the

4 individual plaintiffs have stated that they are members of Puente. See Doc. 28 at 32. But

5 Defendants cite no authority for their argument. Puente properly alleged that its

6 membership is made up of “hundreds of individuals across Arizona,” including “people

7 who have been incarcerated as well as their impacted families.” Doc. 1 (Complaint) ¶ 18.

8 Because of the transient nature of prison populations, pinpointing a specific Puente

9 member among the prospective class is a task not required by Ninth Circuit precedent.

10 Instead, the question is whether Puente members “would otherwise have standing to sue in

11 their own right” and if their interests “are germane to the organization’s purpose.’” Sierra

12 Club, 963 F.3d at 883.

13

Puente also has associational standing because its members have family members

14 in the jails. Doc. 1 (Complaint) ¶ 18. Family members and next-of-kin can of course bring

15 habeas proceedings on behalf of incarcerated people under “next-friend” standing. See

16 Coal. of Clergy, Lawyers, & Professors v. Bush, 310 F.3d 1153, 1157 (9th Cir. 2002)

17 (acknowledging that “federal courts ha[ve] long recognized that under appropriate

18 circumstances, habeas petitions could be brought by third parties, such as family members

19 or agents, on behalf of a prisoner”); see also Massie ex rel. Kroll v. Woodford, 244 F.3d

20 1192, 1194 (9th Cir. 2001).

21

Finally, Defendants’ argument that Puente cannot sue on behalf of its members

22 because it needs to “show its individual members would not need to participate in the

23 litigation,” Doc. 28 at 33, ignores well-settled law. When “parties are seeking injunctive

24 and declaratory relief, individual participation . . . is unnecessary.” Brnovich, 172 F. Supp.

25 at 1090 (Logan, J.). See also Freedom From Religion Found. v. Weber, 628 F. App’x 952,

26 953 (9th Cir. 2015) (when parties request “declaratory and injunctive relief, not money

27 damages,” then standing does “not necessitate individual member participation”) (citation

28 omitted). Because Plaintiffs here seek declaratory and injunctive relief to remedy

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1 Defendants’ constitutional violations, individual member participation is not required.

2

III. PLAINTIFFS’ CLAIMS ARE NOT BARRED BY ANY EXHAUSTION

3

DOCTRINE

4

A. Administrative Remedies Are Satisfied Or Otherwise Unavailable

5

Defendants argue that Plaintiffs failed to exhaust their administrative remedies

6 before filing suit. Doc. 28 at 22-23. As a threshold matter, because the Prison Litigation

7 Reform Act (PLRA) only applies to “prisoners,” it is inapplicable to Puente. See 42

8 U.S.C. § 1997e. As to the individual Plaintiffs, Plaintiffs Perez and Stepter have fully

9 exhausted their claims and to the extent they and others have not, the PLRA “does not

10 require exhaustion when circumstances render administrative remedies ‘effectively

11 unavailable.’” Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (citation omitted);

12 Ross v. Blake, 136 S. Ct. 1850, 1859-60 (2016) (holding that the PLRA only requires

13 exhaustion of remedies that are “capable of use to obtain relief”); 42 U.S.C. § 1997e(a)

14 (requiring exhaustion only of “administrative remedies [that] are available”).

15

1. Plaintiffs Perez and Stepter Have Exhausted Their Claims, So All

Plaintiffs Are Exhausted.

16

17

Under the doctrine of vicarious exhaustion, if the Court finds that a single Plaintiff

18 has either exhausted his remedies, or that administrative remedies are unavailable, such a

19 finding would apply to all Plaintiffs in the applicable classes. See e.g., Chandler v.

20 Crosby, 379 F.3d 1278 (11th Cir. 2004); Gates v. Cook, 376 F.3d 323, 329-30 (5th Cir.

21 2004); Barfield v. Cook, 2019 WL 3562021, at *8 (D. Conn. Aug. 6, 2019); Lewis v.

22 Washington, 265 F. Supp. 2d 939, 942 (N.D. Ill. 2003) (“To require each inmate with the

23 same grievance to exhaust their administrative remedies would be wasteful, and as long as

24 prison officials have received a single complaint addressing each claim in a class action,

25 they have the opportunity to resolve disputes internally and to limit judicial intervention in

26 the management of prisons.”). Here, Plaintiff Perez received a response from an External

27 Referee on July 5. Ex. 5 (Perez Supp. Decl.) ¶ 5-6. The External Referee stated: “MCSO

28 has limited ability to release inmates from custody, Towers is following public health

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1 guidelines, the allegations in [his] grievances were unfounded, and a formal hearing was

2 not required.” Id. ¶ 16. Likewise, Plaintiff Stepter’s external grievance was denied on July

3 2, 2020, stating that MCSO cannot release people and the jail is adhering to CDC

4 guidelines. Ex. 8 (Stepter Supp. Decl.) ¶ 17. Because Plaintiffs Perez and Stepter have

5 exhausted their administrative remedies, all Plaintiffs are deemed to have exhausted those

6 remedies.

7

2. Defendants’ Refusal to Process Grievances, Disregard of Formal

Grievance Policy, and Improper Screening Render Administrative

8

Remedies Unavailable

9

But even if Perez and Stepter had not exhausted their remedies, the rest of

10 Plaintiffs nevertheless have standing because the administrative remedies were not

11 available to them. Defendants have the burden to prove administrative remedies exist as

12 part of their affirmative defense. See Albino v. Baca, 747, F.3d 1162, 1172 (9th Cir. 2014)

13 (holding that “the ultimate burden of proof remains with the defendant[s]” to “prove that

14 there was an available administrative remedy”). Because Defendants ignore the

15 “procedur[al] . . . dead end[s]” that Plaintiffs have encountered in filing their

16 administrative grievances, they have failed to meet their burden. Ross v. Blake, 136 S. Ct.

17 1850, 1859 (2016). Indeed, the Ninth Circuit has deemed administrative remedies

18 unavailable in a wide variety of situations, including when prison officials: (i) “fail to

19 process a prisoner’s grievance,” Andres v. Marshall, 867 F.3d 1076, 1078-79 (9th Cir.

20 2017); (ii) improperly screen a grievance, Sapp, 623 F.3d at 823; (iii) incorrectly instruct

21 an incarcerated person about the grievance process, Nunez v. Duncan, 591 F.3d 1217,

22 1226 (9th Cir. 2010); (iv) threaten to retaliate against a prisoner for filing a grievance,

23 McBride v. Lopez, 807 F.3d 982 (9th Cir. 2015); (v) indefinitely delay in responding to a

24 grievance, “particularly a time-sensitive one,” Brown v. Valoff, 422 F.3d 926, 943 n.18

25 (9th Cir. 2005); or (vi) fail to adhere to the written grievance policy, see, e.g., Beltran-

26 Ojeda v. Doe, No. CV 12-1287-PHX-DGC, 2013 WL 6059242, at *6 (D. Ariz. Nov. 18,

27 2013) (holding that a plaintiff’s failure to exhaust the grievance procedure was excused

28 partly because Maricopa County “jail officials did not abide by their own internal

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1 regulations.”). Each of these conditions exist here.

2

For example, Defendants claim that Plaintiffs Tequida and Ochoa did not properly

3 appeal their grievances. Doc. 28 at 23 n.9; Doc. 30 (Williams Decl.) ¶¶ 38-39, 46-47. But

4 in both instances, guards failed to provide each plaintiff a written denial or the yellow

5 carbon copy of the grievance needed for the next step of the appeal process. Ex. 10

6 (Tequida Supp. Decl.) ¶ 15; Ex. 4 (Ochoa Supp. Decl.) ¶ 14. This violates MCSO’s

7 internal guidelines that (i) “detention personnel shall indicate . . . what action was taken;

8 sign his name, serial number, and note the date and time of the action,” and (ii) a prisoner 9 “be given the yellow copy of the Inmate Grievance Form.”7 Doc. 30-1 at MCSO-

10 FENTY000003. Because any failure on the part of either Tequida or Ochoa to submit the

11 required yellow slip as part of their respective appeals arose because of MCSO 12 personnel’s failure to adhere to its written policy, the appeals were unavailable.8 See

13 Beltran-Ojeda v. Doe, 2013 WL 6059242, at *6.

14

Similarly, Defendants claim that Plaintiffs Scroggins and Ochoa failed to appeal

15 their grievance in a timely fashion. Doc. 30 (Williams Decl.) ¶¶ 38-39, 42-43. But both

16 Plaintiffs repeatedly asked for an Institutional Grievance Appeal form—in Scroggins’

17 case, almost 20 times—and jail staff delayed providing the appeal form or never provided 18 it at all.9 Ex. 4 (Ochoa Supp. Decl.) ¶ 13; Ex. 7 (Scroggins Supp. Decl.) ¶ 16. Indeed, one

19 guard admitted to Ochoa that the reason for withholding the appeal forms was because

20 Estrella Jail was experiencing a backlog of inmate grievances. Ex. 4 (Ochoa Supp. Decl.)

21 ¶ 13. The failure to provide the requisite forms in a timely fashion (and sometimes, out of

22 7 When Mr. Tequida first tried to hand his COVID-19 related grievance to a guard, the
23 guard refused to sign or resolve the grievance. Ex. 10 (Tequida Supp. Decl.) ¶¶ 14-22. This violated the requirement that Maricopa County jails’ personnel attempt “to resolve
24 all detention grievances . . . at the lowest possible level.” Doc. 30-1 at MCSOFENTY000002. It also was an improper refusal to process Tequida’s grievance. Andres,
25 867 F.3d at 1078-79.
26 8 Moreover, MCSO has allowed Tequida and Ochoa to proceed with their grievance, so the process has not yet ended, and Plaintiffs have continued to fulfill their requirements
27 under the grievance process. 9 Plaintiff Scroggins also never received notice of his denial. Ex. 7 (Scroggins Supp.
28 Decl.) ¶ 17.

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1 order) violated MCSO Policy DJ-3 and impeded Plaintiffs Ochoa and Scroggins’ efforts

2 to exhaust their grievances.

3

Finally, at least one plaintiff has an intellectual disability that limits his ability to

4 read and write, and several plaintiffs have expressed fear of retaliation for filing COVID-

5 related grievances. Ex. 7 (Scroggins Supp. Decl.) ¶¶ 6, 18; Ex. 10 (Tequida Supp. Decl.) ¶

6 22. In the Ninth Circuit, administrative remedies are rendered unavailable where either

7 illiteracy or fear of retaliation are an obstacle to a prisoner fully exhausting his grievance.

8 See McBride, 807 F.3d at 987 (holding that “the threat of retaliation for reporting an

9 incident can render the prison grievance process effectively unavailable and thereby

10 excuse a prisoner’s failure to exhaust administrative remedies.”); Beltran-Ojeda, 2013

11 WL 6059242, *10 (holding that plaintiff’s failure to exhaust was excused where jail staff

12 failed to make reasonable efforts to assist a prisoner who possessed a limited ability to

13 read and write).

14

In sum, MCSO staff’s actions consistently stymied Plaintiffs’ reasonable and

15 repeated efforts at fully exhausting their grievances and violated the jails’ internal

16 grievance procedure. Accordingly, Defendants rendered exhaustion unavailable. Nunez,

17 591 F.3d at 1224 (rendering exhaustion unavailable where the plaintiff “took reasonable

18 and appropriate steps to exhaust his . . . claim and was precluded from exhausting, not

19 through his own fault but by the Warden’s mistake.”).

20

3. Defendants’ Lack An Emergency Grievance Procedure, Thereby

21

Rendering Administrative Remedies Unavailable

Courts have also found that when “a prisoner has been placed in imminent danger 22

of serious physical injury by an act that violates his constitutional rights, administrative 23

remedies that offer no possible relief in time to prevent the imminent danger from 24

becoming an actual harm can’t be thought available.” Fletcher v. Menard Corr. Ctr., 623 25

F.3d 1171, 1173 (7th Cir. 2010) (citations omitted); id. at 1174 (“If it takes two weeks to 26

exhaust a complaint that the complainant is in danger of being killed tomorrow, there is no 27

‘possibility of some relief’ and so nothing for the prisoner to exhaust.”). The lack of an 28

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1 expedited grievance procedure for responding to emergencies is sufficient for a court to

2 find that an administrative remedy is unavailable. See id. at 1174-75; McPherson v.

3 Lamont, 2020 WL 2198279, at *10 (D. Conn. May 6, 2020) (holding that administrative

4 remedies were unavailable because the correctional facility lacked an emergency

5 grievance process to quickly address COVID-19 related complaints); Brown v. Valoff, 422

6 F.3d 926, 943 n.18 (9th Cir. 2005) (“Delay in responding to a grievance, particularly a

7 time-sensitive one, may demonstrate that no administrative process is in fact available.”);

8 Karas v. Marciano, 2017 WL 6816858, at *4 (C.D. Cal. Nov. 13, 2017), report and

9 recommendation adopted, 2017 WL 6819460 (C.D. Cal. Dec. 29, 2017) (“When a

10 prisoner submits a [grievance] but never receives a response thereto, the administrative

11 remedies are ‘rendered effectively unavailable by defendants’ actions.’”) (citation

12 omitted).

13

Given how rapidly COVID-19 has already infected the population at the Maricopa

14 County jails—1,274 confirmed cases of COVID-19, with 115 active cases in custody, and

15 the number doubling in just one month—the need for an expedited procedure to address

16 emergency COVID-19 grievances is painfully obvious.10 Despite this, Defendants offer no

17 emergency procedure. All the Prisoner Handbook states is: “If your complaint or

18 grievance is of an emergency nature . . . the on duty [sic] shift supervisor will be advised

19 and appropriate action will be taken.” Doc. 30-1 at MCSO-FENTY000031. It does not

20 require expedited action, outline the steps the jail will take to address emergency

21 grievances, or place jail staff under any deadline to resolve emergencies. In other words,

22 to the extent the jail offers up an “emergency procedure,” it is in name only.

23

Policy DJ-3 is likewise lacking a substantive emergency protocol. At most, Policy

24 DJ-3 offers up the vague assertion that “detention personnel shall take immediate action”

25
26 10 Carissa Planalp, Detention Officers Concerned About COVID-19 Risk in Maricopa County Jails, 3TV/CBS 5 (July 20, 2020), https://cutt.ly/Na0nt3Z; COVID-19 in County
27 Jails: COVID-19 Testing and Results, MARICOPA COUNTY DEPARTMENT OF CORRECTIONAL HEALTH SERVICES (accessed July 27, 2020), https://www.maricopa.gov/5574/COVID-19-in-
28 County-Jails.

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1 with respect to a grievance of an emergency nature. Id. at MCSO-FENTY000002. It offers

2 neither recourse for a prisoner to challenge the determination of whether a grievance is an

3 emergency, nor deadlines or steps for resolving the emergency.

4

Indeed, the standard grievance process outlined in Policy DJ-3 allows for upwards

5 of 125 days before a grievance is fully exhausted. Id. at MCSO-FENTY000011-12. Given

6 that confirmed COVID-19 cases have multiplied more than 30,000 percent in just 60 days,

7 a typical 125-day exhaustion period (even if some are lucky enough to move faster) is

8 patently unreasonable, and the lack of an expedited procedure clearly makes Defendants’

9 administrative remedies unavailable in the face of the pandemic. See McPherson, 2020

10 WL 2198279, at *10 (“Although Defendants’ point that not every grievance will require

11 105 business days to resolve is well taken, the imminent health threat that COVID-19

12 creates has rendered DOC’s administrative process inadequate to the task of handling

13 Plaintiffs’ urgent complaints regarding their health.”).

14

4. The PLRA Does Not Apply To The Medically Vulnerable Pretrial

15

Subclass Seeking Habeas Relief

The PLRA does not apply to Plaintiffs’ 28 U.S.C. § 2241 habeas petition for the 16

medically vulnerable pre-trial plaintiffs. See Ward v. Chavez, 2009 WL 2753024, at *5 17

(D. Ariz. Aug. 27, 2009) (holding that the mandatory PLRA exhaustion requirement does 18

not apply to a § 2241 habeas corpus petition), overruled on other grounds by Ward v. 19

Chavez, 678 F.3d 1042 (9th Cir. 2012); Ex. 17 (Torres v. Milusnic, Case No. 2:20-cv20

4450-CBM-PVC, Doc. 45 (C.D. Cal. July 14, 2020)) (“Having found Petitioners assert a 21

proper habeas claim pursuant to § 2241 challenging the fact of their confinement, the 22

PLRA’s limitations regarding prison release orders do not apply here.”); Wilson v. 23

Williams, 961 F.3d 829, 839 (6th Cir. 2020) (“Because petitioners’ claims are properly 24

brought under § 2241, the BOP’s argument that the claims are foreclosed by the PLRA 25

fails. The PLRA does not apply in habeas proceedings.”) (citing 18 U.S.C. § 3626(g)(2)). 26

Accordingly, there is no mandatory exhaustion requirement that would interfere with the 27

Court’s jurisdiction over the claim for habeas relief. With respect to the remaining claims, 28

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1 exhaustion is not required because administrative remedies are unavailable, as explained

2 above.

3

5. Prudential Exhaustion of the Habeas Claim Is Inapplicable

4

For habeas claims, an “exhaustion requirement is prudential, rather than

5 jurisdictional.” Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017); Brown v. Rison,

6 895 F.2d 533, 535 (9th Cir. 1990). Courts have discretion to waive compliance with the

7 exhaustion process when administrative remedies would be inadequate, futile, or pursuit

8 of them would cause irreparable injury. Aleknagik Natives, Ltd. v. Andrus, 648 F.2d 496,

9 499 (9th Cir. 1980); Liang v. Ashcroft, 370 F.3d 994, 1001-01 (9th Cir. 2004); see also

10 Hernandez, 872 F.3d at 988.

11

Here, any delay in judicial review would clearly result in irreparable injury.

12 Medically vulnerable prisoners are at high risk of serious illness or death should they

13 contract COVID-19, and they do not have the luxury of time; they need immediate relief.

14 See McPherson, 2020 WL 219827 at *7 (“Given the reality of the disease . . . the Court

15 concludes that exhaustion of state remedies would be futile, because, under current

16 conditions, Plaintiffs are at substantial risk of contracting the disease prior to completing

17 the exhaustion process.”). The number of COVID-19 cases in the Maricopa County jails

18 continues to rise exponentially, which in itself demonstrates the abysmal inadequacy of

19 Defendants’ COVID-19 measures.

20

Moreover, there are no administrative remedies—emergency or otherwise—

21 available to Plaintiffs that would result in the relief they seek. As confirmed by

22 Defendants’ responses to Plaintiffs’ grievances, there is no agency mechanism through

23 which the medically vulnerable plaintiffs can seek release, or even systematic reforms

24 short of release that could lead to an ability to socially distance and protect themselves

25 against the virus. As discussed above, the grievance processes Defendants describe are

26 fundamentally and woefully incapable of providing the quick and emergent relief

27 Plaintiffs seek. See supra Section II. Accordingly, because any attempts at exhaustion

28

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1 would thus be futile, prudential exhaustion requirements are inapplicable in this case. See

2 Ward, 678 F.3d at 1045 (exhaustion may be waived if administrative remedies would be

3 futile).

4

B. Plaintiffs Are Not Required to Exhaust State Court Remedies to Pursue

§2241

Habeas Relief

5

6

Defendants argue that Plaintiffs’ request for habeas relief should be denied because

7 they have not fully exhausted state court remedies and, further, that the Court should

8 abstain from hearing their habeas claim. Given the emergent nature of this action,

9 consistent with Ninth Circuit authority, this Court should consider Plaintiffs’ habeas claim

10 because of the harms inherent with delays associated with the process of going through

11 state court procedures.

12

At the outset, Defendants’ arguments about post-conviction Plaintiffs are

13 misplaced. Plaintiffs currently seek habeas relief only on behalf of members of the pretrial

14 medically vulnerable subclass. See Doc. 1 (Complaint) at 41:12. Thus, Plaintiffs’ habeas

15 claim is governed by 28 U.S.C. § 2241, which gives “the district courts” the power to

16 grant a writ of habeas corpus where a prisoner is not in custody pursuant to a court

17 judgment. 28 U.S.C. § 2241(a), (c).

18

While under certain circumstances, the Ninth Circuit has held that “as a prudential

19 matter” people seeking habeas relief should “exhaust available judicial and administrative

20 remedies before seeking relief under § 2241,” Castro-Cortez v. I.N.S., 239 F.3d 1037,

21 1047 (9th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 22 U.S. 30 (2006) (citations omitted),11 it has never held that exhaustion is always required

23
11 That usually means “state prisoners must give the state courts one full opportunity to 24 resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). 25 Where the case does not carry a capital or life sentence, one complete round of Arizona’s
review process is satisfied by the review of an Arizona appellate court and does not 26 require review by the Arizona Supreme Court. Kyzar v. Ryan, 780 F.3d 940, 947 (9th Cir.
2015); see also Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). In order to fairly 27 present the constitutional claims for purposes of exhaustion, an individual must describe
the operative facts and specific federal legal theory to the state appellate court. Lyons v. 28 Crawford, 232 F.3d 666, 669 (9th Cir. 2000), amended on other grounds, 247 F.3d 904

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1 under § 2241. And in White v. Lambert, 370 F.3d 1002, 1008 (9th Cir. 2004), the Ninth

2 Circuit expressly recognized § 2241 does not require exhaustion: “If we were to allow

3 White to proceed under 28 U.S.C. § 2241, he would not be subject to . . . state court

4 exhaustion requirements.” That makes sense because exhaustion is not jurisdictional; it is

5 instead a matter of comity. Courts “have discretion to waive [this] prudential

6 requirement.” Laing v. Ashcroft, 370 F.3d 994, 998 (9th Cir. 2004); Lindquist v. Gardner,

7 770 F.2d 876, 877 (9th Cir. 1985). They should do so when state court judicial remedies

8 are inadequate or futile, or where irreparable injury would result from going through the

9 process. Acevedo-Carranza v. Ashcroft, 371 F.3d 539, 541-42, n.3 (9th Cir. 2004). When

10 exhaustion “only create[s] an unnecessary impediment to the prompt determination of an

11 individuals’ rights[,]” it is futile. Sweet v. Cupp, 640 F.2d 233, 236 (9th Cir. 1981). Here,

12 Plaintiffs’ rights are unnecessarily impeded by lengthy state court proceedings. This is

13 particularly true when the subclass of Plaintiffs seeking habeas relief, all of whom are

14 medically vulnerable, face irreparable harm and a risk of death from COVID-19, which

15 increases with every passing moment of confinement. Ex. 11 (Cohen Supp. Decl.) ¶ 3.

16

The Supreme Court’s holding in Younger, from which the exhaustion doctrine is

17 derived, does not compel a different result. The decision to invoke Younger abstention

18 turns on whether the state proceedings provide a meaningful opportunity to raise

19 constitutional claims. Moore v. Sims, 442 U.S. 415, 430 (1979). The Court has recognized

20 that there must be exceptions to Younger abstention when there is irreparable injury that is

21 both great and immediate or where another extraordinary circumstance is shown. Younger

22 v. Harris, 401 U.S. 37, 45-46 (1971); Baffert v. Cal. Horse Racing Bd., 332 F.3d 613, 621

23 (9th Cir. 2003). COVID-19 presents such an irreparable harm because of the

24 unprecedented and extraordinary risks it poses to the medically vulnerable who have a

25 high risk of contracting and dying from the disease. Ex. 11 (Cohen Supp. Decl.) ¶ 3.

26

In any event, courts have held that Younger does not apply when, like here, there is

27 28 (9th Cir. 2001).

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1 no pending state court proceeding and the underlying question before the Court is whether

2 the Plaintiffs have exhausted their state court remedies. See Mays v. Dart, 2020 WL

3 1812381, at *7 (N.D. Ill. Apr. 9, 2020). Because Plaintiffs are not challenging their

4 underlying charges, but are rather seeking release so that they can be safe pending

5 resolution of their state court claims, the question is about exhaustion, and not the

6 underlying state court proceeding. So Younger does not apply.

7

Finally, while Defendants suggest that Plaintiffs may have filed motions to modify

8 release conditions pursuant to Arizona Rule of Criminal Procedure 7.2 and A.R.S. § 13-

9 3967, this is not on point. Neither of these statutes expressly provide that people may

10 modify their release conditions on the basis of medical vulnerability, nor do these statutes

11 contemplate people raising specific constitutional violations as a basis to modify their

12 release conditions. Nor do they contemplate class-wide relief. Indeed, A.R.S. § 13-3967

13 lists categories of information that must be taken into account when determining whether

14 and how to release an incarcerated person, however, none of these categories capture the

15 basis of the claims raised in this lawsuit. Accordingly, these bail statutes do not entitle

16 Plaintiffs to a meaningful opportunity to present their state claims and exhaust state

17 remedies.

18 IV. PLAINTIFFS’ CONSTITUTIONAL AND STATUTORY RIGHTS ARE

19

BEING VIOLATED

20

A. Plaintiffs’ Fourteenth Amendment Rights Are Being Violated

21

Defendants claim that their “legitimate non-punitive interest in the effective

22 management of the[] jails” excuses their many failures. Doc. 28 at 34. First, Defendants’

23 failure to ensure safe conditions is plainly sufficient to establish unconstitutional

24 punishment. See Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004) (holding a punitive

25 condition exists where “the challenged restrictions serve an alternative, non-punitive

26 purpose but are nonetheless excessive in relation to the alternative purposes, . . . or are

27 employed to achieve objectives that could be accomplished in so many alternative and

28 less harsh methods.”) (citations and quotation marks omitted).

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1

In any event, there is no need to balance Plaintiffs’ unconstitutional punishment

2 with the government’s interest. No matter the legitimate interests Defendants have in the

3 effective management of their jails, they do not have an interest in operating facilities that

4 violate public health guidelines and place their incarcerated population at serious risk of

5 substantial harm. Notably, Defendants fail to explain how altering conditions to meet

6 public health guidelines would detract from their interest in effectively managing the

7 conditions at the jails. Changes in the conditions at the jails combined with the release of a

8 subset of members of the Medically Vulnerable and Disability Subclasses would help to

9 ensure the presence of incarcerated persons at trial. These changes would help to

10 minimize the risk to the Pretrial Subclass of contracting COVID-19, thereby increasing

11 the likelihood that they would be healthy and able to attend trial. See Doc. 14 (Motion) at

12 19. They would also reduce the risks of Defendants’ own staff growing so ill that they

13 cannot carry out their duties, thereby compromising security and safety at the jail

14 facilities.

15

Defendants’ arguments as to deliberate indifference fare no better. Defendants first

16 claim that omissions are insufficient to give rise to deliberate indifference. This ignores

17 the long line of Ninth Circuit precedent deeming inaction to constitute deliberate

18 indifference. See, e.g., Edmo v. Corizon, Inc., 935 F.3d 757, 793-95, n. 43 (9th Cir. 2019)

19 (upholding deliberate indifference finding despite evidence of “extensive treatment over a

20 period of years” because “it stopped short of what was medically necessary”). Indeed, “it

21 is enough that the official acted or failed to act despite [the official’s] knowledge of a

22 substantial risk of serious harm.” Farmer v. Grennan, 511 U.S. 825, 842 (1994) (citation

23 omitted). Here, Defendants do not dispute that they are aware of the severe risks

24 associated with COVID-19, as evidenced by their own policies, however inadequate those

25 policies may be. Thus, their failure to act here constitutes deliberate indifference.

26

Defendants next argue that there must be an intentional decision for purposes of

27 punishment. Doc. 28 at 36. Yet that is not the standard for assessing objective

28 reasonableness. By Defendants’ own admission, Plaintiffs need only show: (1) an

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1 intentional decision about conditions of confinement; (2) which puts Plaintiffs at

2 substantial risk of suffering serious harm; (3) with Defendants not taking “reasonable

3 available measures to abate that risk, even though a reasonable officer in the

4 circumstances would have appreciated the high degree of risk involved—making the

5 consequences of the defendant’s conduct obvious”; and (4) by “not taking such measures

6 the defendant caused the plaintiff’s injuries.” Castro v. Cty. of Los Angeles, 833 F.3d

7 1060, 1071 (9th Cir. 2016) (footnote omitted).

8

Plaintiffs have demonstrated every element. First, in failing to take measures

9 consistent with public health guidelines, Defendants have made an intentional decision

10 regarding Plaintiffs’ conditions of confinement. Second, Plaintiffs are at a substantial risk

11 of suffering serious harm. By the time that Plaintiffs filed their application for a temporary

12 restraining order, 565 persons at the Maricopa County jails tested positive for COVID-19. 13 Doc. 28 at 6. Just weeks later that number has escalated to 1,274.12 Third, Defendants

14 have not taken reasonably available measures to abate this risk. As set forth in Plaintiffs’

15 application, there are a myriad of measures that Defendants should take in abating the

16 risks of COVID-19 in the Maricopa County jails. Doc. 14 at 23-24. For example,

17 Defendants could immediately release persons identified in this motion, but they have

18 failed to do so. Finally, Defendants’ failure to take these measures is causing irreparable

19 harm. For instance, Plaintiff Ochoa has since tested positive for COVID-19 since the

20 filing of the motion. Ex. 4 (Ochoa Suppl. Decl.) ¶ 4. Thus, Plaintiffs are likely to succeed

21 on the merits of their deliberate indifference claim under the Fourteenth Amendment.

22

Defendants argue that, to the extent they are not complying with their written

23 policies (which are inadequate in their own right), these instances are isolated and

24 sporadic. Doc. 28 at 36-37. But in the Ninth Circuit, even when an allegedly adequate

25 written policy is in place, a party’s actual practices can nevertheless create

26

27 12 See COVID-19 in County Jails: COVID-19 Testing and Results, MARICOPA COUNTY DEPARTMENT OF CORRECTIONAL HEALTH SERVICES (accessed July 29, 2020),
28 https://www.maricopa.gov/5574/COVID-19-in-County-Jails.

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1 unconstitutional conditions of confinement. See Orantes-Hernandez v. Holder, 321 Fed.

2 App’x 625, 628 (9th Cir. 2009) (“The government’s insistence that the existence of its

3 forms and policies alone obviates the need for the injunction misses the point. Orantes I,

4 II, and III make it clear that the injunction seeks to remedy the government’s actual

5 practices, not just its policies on paper.”); Parsons v. Ryan, 289 F.R.D. 513, 520-21 (D.

6 Ariz. 2013) (“Defendants’ oft-repeated contention that Plaintiffs’ allegations are

7 inconsistent with [Arizona Department of Corrections] policies misunderstands the

8 substance of Plaintiffs’ claims. Plaintiffs’ claim is that despite ADC stated policies, the

9 actual provision of health care in its prison complexes suffers from systemic deficiencies

10 that rise to the level of deliberate indifference.” (emphasis in original)), aff’d, 754 F.3d

11 657 (9th Cir. 2014); Unknown Parties v. Johnson, 163 F. Supp. 3d 630, 637-40 (D. Ariz.

12 2016) (recognizing that detained immigrants’ claims regarding conditions of confinement

13 could “result from Defendants’ stated policies or from their alleged failure to create or

14 adhere to those policies”); Jones v. City & Cnty. of San Francisco, 976 F.Supp. 896, 908-

15 909 (N.D. Cal. 1997) (“In determining whether to find deliberate indifference in this

16 case, the Court cannot restrict its examination to whether defendants made substantial

17 efforts to improve safety, thereby excluding any consideration of whether the

18 improvements have actually left inmates reasonably safe from fire. If the Court took such

19 a narrow view, the protections of the Fourteenth Amendment would become arbitrary and

20 have little relationship to the inmates’ current conditions of confinement.”).

21

Defendants sidestep this argument, stating instead that there is no pattern or

22 practice of unconstitutional confinement. But they ignore the consistency with which

23 Plaintiffs are experiencing Defendants’ failure to implement the policies. Plaintiffs are

24 incarcerated across each of Maricopa County’s five jails. Yet their experiences with

25 Maricopa County’s staff is near identical. Each Plaintiff has been forced to live in

26 crowded jail cells or dorms without social distancing, attend meals herded together in

27 large groups, use common areas that are not sanitized, clean their cells with limited

28 cleaning supplies and no gloves (and, in some instances, lack cleaning supplies for their

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1 cells altogether), and use PPE over and over again that is far from sanitary. The regularity

2 with which each of the Plaintiffs has experienced Defendants’ departures from their own

3 written policies evinces a “persistent and widespread” custom and practice to warrant

4 Monell liability. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quotation marks and

5 citations omitted). That there is a widespread outbreak of COVID-19 cases at the

6 Maricopa County jails is only further evidence of this practice.

7

B. Defendants are Violating Plaintiffs’ Eighth Amendment Rights

8

Defendants concede COVID-19 is an extremely serious threat to both prisoners and

9 staff. See, Doc. 28 at 6-17; Doc. 34 (Phillips Decl.) ¶¶ 6, 11-13. Sadly, COVID-19 has

10 already claimed the life of at least one MCSO officer—likely two.13 Yet the risk of

11 COVID-19 is higher for prisoners, as detention officers purportedly receive enhanced

12 cleaning of their staff work areas and vehicles, education, and PPE, none of which is true

13 for prisoners. Doc. 29 (Roska Decl.) ¶¶ 33, 47, 65, 68.

14

Defendants hide behind the subjective component of the Eighth Amendment

15 deliberate indifference standard to justify their inaction. But “an Eighth Amendment

16 claimant need not show that a prison official acted or failed to act believing that harm

17 actually would befall an inmate.” Farmer v. Brennan, 511 U.S. 825, 842 (1994). Plaintiffs

18 must merely show that Defendants “ignore[d] a condition of confinement that is sure or

19 very likely to cause serious illness and needless suffering” even if “the complaining

20 inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33

21 (1993).

22

Here, Plaintiffs satisfy the test. Defendants’ actions in the face of COVID-19

23 exhibit quintessential subjective deliberate indifference. On the one hand, having enacted

24 a policy meant to target the spread of COVID-19 in the Maricopa County jails,

25 Defendants cannot dispute that they are aware “of a condition of confinement that is sure

26
27 13 https://www.azfamily.com/news/two-maricopa-county-sheriff-officers-have-died-onetested-positive-for-covid-19-family-says/article_312bc792-bfde-11ea-94c4-
28 0b6be0e82180.html.

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1 or very likely to cause serious illness and needless suffering.” But on the other hand,

2 having failed to take meaningful actions that are consistent with the provisions of the

3 policy, Defendants have “ignored” these grave conditions.

4

C. Defendants are Violating Plaintiffs’ ADA and Rehabilitation Act Rights

5

Defendants’ cursory challenge to Plaintiffs’ claims under the Americans with

6 Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (“Section 504”) is

7 unavailing. Defendants’ misunderstanding of their obligations under disability rights laws

8 underscores their failure to comply with its affirmative obligations to avoid deadly

9 disability discrimination.

10

Defendants’ chief challenge to Plaintiffs’ disability claims is the assertion that in

11 order to show discrimination “by reason of” disability, Plaintiffs must prove intentional,

12 subjective discrimination based on disability. See Doc. 28 at 40-41. The Ninth Circuit

13 squarely rejected this argument in McGary v. City of Portland, 386 F.3d 1259, 1265-66

14 (9th Cir. 2004). “A plaintiff need not allege either disparate treatment or disparate impact

15 in order to state a reasonable accommodation claim.” Id. A defendant’s failure to provide

16 reasonable accommodations is sufficient to demonstrate discrimination “by reason of

17 disability.” Id.; see also id. at 1266-67 (noting that “the crux of a reasonable

18 accommodation claim is a facially neutral requirement that is consistently enforced” and

19 concluding that the “district court’s suggestion that un equal treatment is required to state

20 a reasonable accommodation claim eviscerates this fundamental purpose of the ADA”);

21 Ahlman v. Barnes, WL 2754938, at *12 (C.D. Cal., May 26, 2020); Olmstead v. Zimring,

22 527 U.S. 581, 598 (1999); Cooley v. City of Los Angeles, 2019 WL 3766554, at *5 (C.D.

23 Cal. Aug. 5, 2019); Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002).

24

The Disability Subclass members are not simply challenging the adequacy of the

25 treatment that they are receiving. Rather, they are seeking reasonable modifications to

26 enjoy equal access to the Maricopa County jails’ services, programs, and activities,

27 including medical care, meals, and rehabilitative programming. See Doc. 1 (Complaint) ¶

28 203. By forcing Disability Subclass members to make an impossible choice between

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1 either receiving medical care through pill call and facing an unacceptable risk of serious

2 illness or death through COVID-19 exposure; or foregoing necessary medical treatment to

3 limit COVID-19 risk, the jails are failing to make necessary modifications to avoid

4 disability discrimination.

5

Defendants are failing to meet their “affirmative obligations” to ensure equal

6 access and nondiscrimination for people with disabilities, obligations which include

7 making reasonable modifications and ensuring that the jails’ methods of administration

8 are nondiscriminatory. 28 C.F.R. §§ 35.130(a), (b)(7)(i), (b)(2)(i)-(ii); see also Fraihat v.

9 U.S. Immigration and Customs Enforcement, 2020 WL 1932570, at *26 (C.D. Cal. Apr.

10 20, 2020); Pierce v. District of Columbia, 128 F. Supp. 3d 250, 266, 269 (D.D.C. 2015).

11

Defendants’ reliance on Turner v. Safely, 482 U.S. 78 (1987) is unavailing. The

12 Supreme Court opinions effectively overruled Turner’s application to ADA and

13 Rehabilitation Act claims. See Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210

14 (1998) (“The text of the ADA provides no basis for distinguishing these programs,

15 services, and activities from those provided by public entities that are not prisons.”);

16 Johnson v. California, 543 U.S. 499 (2005) (refusing to analyze incarcerated plaintiffs’

17 claims of racial discrimination under Turner).

18

Even if Turner applied, it does not create a broad cover for any and all disability

19 discrimination as Defendants assert, and all four Turner factors favor Plaintiffs. First,

20 there is no “valid rational connection” between a policy of putting disabled incarcerated

21 people at heightened risk of severe illness or death and any legitimate governmental

22 interest. Second, there are no alternate means for disabled incarcerated people to exercise

23 their right to avoid severe illness or death while locked in the jails, except for the jails to

24 make reasonable modifications as requested. Third, the impact of the requested

25 modifications would be to make the jails safer for others in the jails. Moreover,

26 Defendants’ cursory claim that providing the requested modifications would “undoubtedly

27 result in financial and administrative burdens” does not approach the showing they must

28 make to raise a defense of undue financial burden. A statement that a modification “would

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1 undoubtedly” be a burden, without any factual support, and without the detailed written

2 analysis required by the regulations, is meritless. See 28 C.F.R. § 35.164 (“where

3 personnel of the public entity believe that the proposed action would … result in undue

4 financial or administrative burden, a public entity has the burden of proving that

5 compliance with this subpart would result in such … burdens. The decision that

6 compliance would result in such … burdens must be made by the head of the public entity

7 or his or her designee after considering all resources available for use in the funding and

8 operation of the service, program, or activity, and must be accompanied by a written

9 statement of the reasons for reaching that conclusion.”). Further, the jails release people

10 every day. A requested modification that an entity already undertakes or purports to

11 undertake cannot fundamentally alter that entity. Cf. Henrietta D. v. Bloomberg, 331 F.3d

12 261, 281 (2d Cir. 2003) (“[t]he reasonableness of the modifications that plaintiffs seek …

13 is evidenced by the fact that virtually all are modifications that defendants have long

14 purported … to provide”) (quoting Henrietta D. v. Giuliani, 119 F. Supp. 2d, 181, 208

15 n.17 (E.D.N.Y. 2000)). Fourth, the jails’ apparent policy of refusing to provide

16 modifications for people with disabilities to avoid severe illness or death and to participate

17 equally in the jails’ programs is plainly an “exaggerated” response to the necessities of

18 running a jail– indeed this policy is entirely untethered to any governmental interest or

19 concern.

20 V. PLAINTIFFS ARE SUFFERING IRREPARABLE HARM

21

Defendants dismiss Plaintiffs’ evidence of irreparable harm, arguing that it is not a

22 question of whether COVID-19 is dangerous, but “whether Plaintiffs have shown they

23 will suffer irreparable injuries even after accounting for the measures” at the Maricopa

24 County jails. Doc. 22 at 47 (citing Valentine v. Collier, 956 F.3d 797, 804 (5th Cir.

25 2020)). Plaintiffs agree. Even accounting for measures that might be taken at the Maricopa

26 County jails, there is no safe means to incarcerate medically vulnerable people in

27 congregate detention facilities during the COVID-19 pandemic, and the Medically

28 Vulnerable and Disability Subclasses have clearly shown that they are at a heightened risk

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1 of serious illness or even death as a result. Doc. 12 (Cohen Decl.) ¶¶ 4, 6-14, 88; Ex. 11

2 (Cohen Supp. Decl.) ¶ 3. But in addition, Defendants’ facially inadequate “measures”,

3 coupled with a failure to implement them, puts all Plaintiffs at an even greater risk of

4 contracting COVID-19. Plaintiffs presented the declaration of Dr. Robert Cohen, a

5 medical doctor with over thirty years of expertise in the care of incarcerated persons. Doc.

6 12 (Cohen Decl.) ¶ 1. He opined that “there are several issues specific to the Maricopa

7 County jails that contribute to an excessive risk of harm associated with COVID-19.” Id. ¶

8 33. These conditions include: (1) insufficient testing of incarcerated persons, id. ¶¶ 19-25,

9 (2) insufficient efforts to mitigate the risks to the medically vulnerable, id. ¶¶ 26-33, (3)

10 inadequate protections, screening and social distancing during booking, id. ¶¶ 34-36, (4)

11 inadequate social distancing at the jails, id. ¶¶ 37-44, (5) inadequate procedures for

12 quarantining possible cases and treating positive cases, id. ¶¶ 44-49, (6) failure to make

13 personal protective equipment, cleaning supplies, and sanitization available, id. ¶¶ 50-54,

14 and (7) to provide adequate information and education. Id. ¶ 56. The conditions currently

15 plaguing the Maricopa County jails create a heightened—and perhaps unmitigated—risk

16 of contracting COVID-19. Critically, Defendants do not refute, let alone mention, Dr.

17 Cohen’s declaration. Thus, it is undisputed that Plaintiffs will continue to experience

18 irreparable harm on Defendants’ watch.

19

Seeming to recognize this fact, Defendants pivot, stating that Plaintiffs “only

20 generally assert[] that everyone is at risk of infection unless they are granted relief.” Doc.

21 28 at 47. But for some, the irreparable harm has already materialized. To include but one

22 example, at the time that Plaintiffs filed their motion, Plaintiff Ochoa stated that she was

23 “scared of contracting COVID-19 because if someone had the virus here, it would spread

24 to everyone due to the crowded conditions and lack of precautions taken by the jail.” Doc.

25 8-1 (Ochoa Decl.) ¶ 2. Since filing the motion, Ms. Ochoa’s worst fears have come true:

26 she—and the majority of her dorm—tested positive for COVID-19 and is currently

27 housed in a unit for incarcerated people who tested positive for COVID-19. Ex. 4 (Ochoa

28 Suppl. Decl) ¶ 4. This is not surprising given the rapid spread of COVID-19 across the

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1 jails. On June 16, 2020, the day Plaintiffs filed the complaint, there were 313 COVID-19

2 positive persons at the jails. Doc. 1 (Complaint) at 1. Within weeks, when Plaintiffs filed

3 their temporary restraining order, that number jumped to 565. Doc. 14 at 1. Now that 4 number is 1,274.14 Thus, whether generalized or specific, Plaintiffs have clearly

5 established irreparable harm as a result of Defendants’ practices.

6 VI. THE BALANCE OF THE EQUITIES ARE IN PLAINTIFFS’ FAVOR

7

With respect to the balance of the equities, Defendants’ argument amounts to

8 nothing more than courts should never intervene in jail administration. But courts across

9 the country have recognized the need for judicial action to release certain medically-

10 vulnerable persons in light of the rate at which COVID-19 has infected incarcerated

11 populations. See, e.g., Ex. 16 (Martinez-Brooks v. Carvjal, No. 3:20-cv-00569-MPS (D.

12 Conn. May 12, 2020), Doc. 30 (granting TRO which authorized a process to allow for

13 release and/or enlargement of incarcerated persons)); Ex. 17 (Torres v. Milusnic, No. CV

14 20-4450-CBM-PVC(x) (C.D. Cal. July 14, 2020), Doc. 45 (granting preliminary

15 injunction to allow for compassionate release of certain incarcerated persons)). Courts

16 have also required detention facilities to change their COVID-19 policies to be consistent

17 with recommendations from public health experts. See, e.g., Urdaneta v. Keeton, 2020

18 WL 2319980 (D. Ariz. May 11, 2020); Doc. 8-1 (Exhibit 23, Mendoza v. Barr, No CV-

19 20-00514-PHX-SPL (MTM) (D. Ariz. June 16, 2020)). The situation at the Maricopa

20 County jails is dire. And because Defendants have failed to take adequate steps to protect

21 their incarcerated population, the balance of the equities favor judicial action.

22 VII. THE COURT HAS AUTHORITY TO ORDER RELEASE

23

Defendants claim “the Court does not have authority to issue a release order”

24 because Petitioners are challenging the conditions of their confinement. Doc. 28 at 24-25.

25 Defendants are wrong. First, 28 U.S.C. § 2241(c)(3) expressly empowers the Court to

26

27 14 See COVID-19 in County Jails: COVID-19 Testing and Results, MARICOPA COUNTY DEPARTMENT OF CORRECTIONAL HEALTH SERVICES (accessed July 29, 2020),
28 https://www.maricopa.gov/5574/COVID-19-in-County-Jails.

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1 order the release of people who are held “in violation of the Constitution or laws or

2 treaties of the United States.” 28 U.S.C. § 2241(c)(3). So “[t]he fact that Petitioners’

3 claims require consideration of detention conditions does not necessarily preclude habeas

4 corpus review.” Urdaneta v. Keeton, 2020 WL 2319980, at *6. In any event, whatever

5 change in conditions Defendants may undertake, there is no set of conditions that would

6 allow members of the Medically Vulnerable and Disability Subclasses to be housed safely

7 at the jails, thereby violating their constitutional rights. “Because Petitioners contend there

8 are not set of conditions of confinement that could be constitutional,” “Petitioners

9 challenge the fact of their confinement.” Ex. 17 (Torres v. Milusnic, No. CV 20-4450-

10 CBM-PVC(x) (C.D. Cal. July 14, 2020)) Doc. 45 at 14; see also Wilson v. Williams, 961

11 F.3d at 837-838 (petitioners’ claims were properly brought under § 2241 where they

12 alleged there are no conditions of confinement sufficient to prevent irreparable

13 constitutional); Martinez-Brooks v. Easter, --F. Supp. 3d--, No. 3:20-cv-00569, 2020 WL

14 2405350, at *16 (D. Conn. May 12, 2020) (petitioners’ claim was a proper habeas claim

15 because they “contend[ed] that the fact of their confinement in prison itself amounts to an

16 Eighth Amendment violation under these circumstances, and nothing short of an order

17 ending their confinement . . . will alleviate that violation.”) (footnote omitted); Malam v.

18 Adducci, --F. Supp. 3d--, No. 20-10829, 2020 WL 1672662, at *3 (E.D. Mich. Apr. 5,

19 2020) (noting “where a petitioner claims no set of conditions would be sufficient to

20 protect her constitutional rights, her claim should be construed as challenging the fact, not

21 conditions, of her confinement and is therefore cognizable in habeas”).

22

In addition, Defendants do not address that Plaintiffs may be released, or their

23 custody may be enlarged, under section 1983 where the unconstitutional conditions do not

24 relate to “overcrowding”. Members of the Medically Vulnerable Subclasses are

25 incarcerated in conditions that expose them to an unacceptable risk of harm from COVID-

26 19 infection, and “the courts have a responsibility to remedy the resulting Eighth

27 Amendment violation.” See Brown v. Plata, 563 U.S. 493, 511 (2011) (citation omitted).

28 The only remedy that will cure the violation for these subclasses is release or enlargement.

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1

Accordingly, the Court should order the immediate release of the medically

2 vulnerable and disabled who are incarcerated merely due to their inability to pay a

3 financial condition of release. Moreover, the Court should order the parties to engage in a

4 process to identify and release additional members of the Medically Vulnerable and

5 Disability Subclasses followed by a hearing to evaluate the deprivation of the individual’s

6 federal rights and the risk that release and/or enlargement would pose to others, as set

7 forth in Plaintiffs’ proposed order. See Doc. 14-1 (Proposed Order).

8 VIII. CONCLUSION

9

This is a matter of life and death. Swift relief is needed.

10 ///

11 ///

12 ///

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 DATED: July 30, 2020 2 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
CORE/3502877.0004/160760201.1

Respectfully submitted,
STINSON LLP
/s/ Larry Wulkan Larry J. Wulkan (021404) STINSON LLP Firm Identification Number 00462400 1850 North Central Avenue, Suite 2100 Phoenix, Arizona 85004-4584 Telephone: (602) 279-1600 Fax: (602) 240-6925 Email: larry.wulkan@stinson.com
ETHAN J. SANDERS* (MO 71151) (ethan.sanders@stinson.com) STINSON LLP 1201 Walnut Street, Suite 2900 Kansas City, MO 64106 Telephone: (816) 691-2628
SHARI ROSS LAHLOU (Admitted Pro Hac Vice) (shari.lahlou@dechert.com) DECHERT LLP 1900 K Street, N.W. Washington, DC 20006 - 1110 Telephone: (202) 261-3300
PAT ANDRIOLA (Admitted Pro Hac Vice) (pat.andriola@dechert.com) TIMOTHY LY* (NY SBN 5478540) (timothy.ly@dechert.com) DECHERT LLP Three Bryant Park, 1095 Avenue of the Americas New York, NY 10036 Telephone: (212) 698-3500
BENJAMIN M. SADUN (Admitted Pro Hac Vice) (benjamin.sadun@dechert.com) ALLISON OZUROVICH (Admitted Pro Hac Vice) (allie.ozurovich@dechert.com) DECHERT LLP 633 West 5th Street, Suite 4900 Los Angeles, CA 90071 Telephone: (213) 808-5700
40

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1 2 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
CORE/3502877.0004/160760201.1

JARED G. KEENAN (SBN 027068) (jkeenan@acluaz.org) CASEY ARELLANO (SBN 031242) (carellano@acluaz.org) ACLU FOUNDATION OF ARIZONA P.O. Box 17148 Phoenix, AZ 85011 Telephone: (602) 650-1854
OLGA AKSELROD (Admitted Pro Hac Vice) (oakselrod@aclu.org) ERIC BALABAN (Admitted Pro Hac Vice) (ebalaban@aclu.org) ZOE BRENNAN-KROHN (Admitted Pro Hac Vice) (ZBrennanKrohn@aclu.org) HUGH HANDEYSIDE (Admitted Pro Hac Vice) (hhandeyside@aclu.org) CLARA SPERA (Admitted Pro Hac Vice) (cspera@aclu.org) SOMIL TRIVEDI (Admitted Pro Hac Vice) (strivedi@aclu.org) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10014 Telephone: (212) 549-2569
915 15th St. NW, 7th Floor Washington, DC 20005 Telephone: (202) 393-4930
39 Drumm Street San Francisco CA 94111 Telephone: (415) 343-0769
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1

CERTIFICATE OF SERVICE

2 I hereby certify that on July 30, 2020, I caused the foregoing document to be filed
3 electronically with the Clerk of the Court through ECF, and served the counsel of record
4 via the Court’s CM/ECF System.
5

6

7

/s/ Cynthia Fischer

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 2:20-cv-01192-SPL-JZB Document 62 Filed 09/08/20 Page 1 of 19

1 Larry J. Wulkan (021404) STINSON LLP
2 Firm Identification Number 00462400 1850 North Central Avenue, Suite 2100
3 Phoenix, Arizona 85004-4584 Telephone: (602) 279-1600
4 Fax: (602) 240-6925 Email: larry.wulkan@stinson.com
5

6
Counsel for Plaintiffs 7 Additional counsel listed on following page

8

9 UNITED STATES DISTRICT COURT
10 DISTRICT OF ARIZONA
11

12
Jason Fenty, Brian Stepter, Douglas 13 Crough, Edward Reason, Jesus
Tequida, Ramon Avenenti, Anthony 14 Scroggins, Dale Perez, and Tamara
Ochoa on behalf of themselves and 15 those similarly situated,

16 Plaintiff-Petitioners,

17 Puente Human Rights Movement,

18

Plaintiff,

19 v.

20 Paul Penzone, in his official capacity, and Maricopa County, a municipal
21 entity,

22

Defendants.

23

Case No. 2:20-cv-01192-SPL-JZB
REPLY IN SUPPORT OF PLAINTIFFPETITIONERS’ MOTION FOR CLASS CERTIFICATION

24

25

26

27

28

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Case 2:20-cv-01192-SPL-JZB Document 62 Filed 09/08/20 Page 2 of 19
1 ETHAN J. SANDERS* (MO 71151) (ethan.sanders@stinson.com) STINSON LLP
2 1201 Walnut Street, Suite 2900 Kansas City, MO 64106
3 Telephone: (816) 691-2628
4 SHARI ROSS LAHLOU (Admitted Pro Hac Vice) (shari.lahlou@dechert.com) DECHERT LLP
5 1900 K Street, N.W. Washington, DC 20006 - 1110
6 Telephone: (202) 261-3300
7 PAT ANDRIOLA (Admitted Pro Hac Vice) (pat.andriola@dechert.com) TIMOTHY LY (Admitted Pro Hac Vice) (timothy.ly@dechert.com)
8 DECHERT LLP Three Bryant Park, 1095 Avenue of the Americas
9 New York, NY 10036 Telephone: (212) 698-3500
10 BENJAMIN M. SADUN (Admitted Pro Hac Vice) (benjamin.sadun@dechert.com)
11 ALLISON OZUROVICH (Admitted Pro Hac Vice) (allie.ozurovich@dechert.com) DECHERT LLP
12 633 West 5th Street, Suite 4900 Los Angeles, CA 90071
13 Telephone: (213) 808-5700
14 JARED G. KEENAN (SBN 027068) (jkeenan@acluaz.org) CASEY ARELLANO (SBN 031242) (carellano@acluaz.org)
15 ACLU FOUNDATION OF ARIZONA P.O. Box 17148
16 Phoenix, AZ 85011 Telephone: (602) 650-1854
17 OLGA AKSELROD (Admitted Pro Hac Vice) (oakselrod@aclu.org)
18 ERIC BALABAN (Admitted Pro Hac Vice) (ebalaban@aclu.org) ZOE BRENNAN-KROHN (Admitted Pro Hac Vice) (ZBrennan-Krohn@aclu.org)
19 HUGH HANDEYSIDE (Admitted Pro Hac Vice) (hhandeyside@aclu.org) CLARA SPERA (Admitted Pro Hac Vice) (cspera@aclu.org)
20 SOMIL TRIVEDI (Admitted Pro Hac Vice) (strivedi@aclu.org) AMERICAN CIVIL LIBERTIES UNION FOUNDATION
21 125 Broad Street, 18th Floor New York, NY 10014
22 Telephone: (212) 549-2569
23 915 15th St. NW, 7th Floor Washington, DC 20005
24 Telephone: (202) 393-4930
25 39 Drumm Street San Francisco CA 94111
26 Telephone: (415) 343-0769
27
28
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1 I. INTRODUCTION

2

Although styled as an opposition to class certification, Defendants’ brief opposes

3 very little that is relevant to class certification, and the Court has already addressed most

4 of what Defendants purport to oppose. Defendants concede the classes are sufficiently

5 numerous and then ignore Plaintiffs’ evidence regarding the expected size of the

6 subclasses. Defendants raise no specific objection to the adequacy and typicality of all

7 but one of the proposed class representatives, nor do they raise any specific objection to

8 the adequacy and typicality of four of the proposed subclass representatives (Crough,

9 Perez, Ochoa, and Tequida). Defendants do not challenge the adequacy of class counsel.

10 Nor do they directly challenge any of the class or subclass definitions.

11

Instead, Defendants spend most of their brief rearguing issues this Court has

12 already rejected in denying their motion to dismiss. Defendants continue to suggest that

13 this case arises out of individualized disputes against the specific facilities in which each

14 class member is housed, ignoring this Court’s ruling that “Plaintiffs’ claims are not about

15 the specific facilities where each is housed, but about Defendants’ policies and practices

16 with respect to COVID-19 at all Maricopa County jails.” Doc. 52 at 11. They again

17 assert that the class representatives failed to exhaust available administrative remedies

18 even though this Court already rejected that argument “at this early stage of the

19 litigation.” Id. at 14. They reargue that the single claim seeking habeas relief should be

20 dismissed, not certified—an argument the Court’s ruling forecloses. See Doc. 32 at 24-25

21 (asserting argument); Doc. 52 at 14 (denying motion to dismiss).

22

The claims Plaintiffs assert here are precisely the type that should be certified as

23 class claims under Rule 23(b)(2). See, e.g., Parsons v. Ryan, 754 F.3d 657, 686 (9th Cir.

24 2014) (“courts have repeatedly invoked [Rule 23(b)(2)] to certify classes of inmates

25 seeking declaratory and injunctive relief for alleged widespread Eighth Amendment

26 violations in prison systems.”). It is for this reason that other courts have repeatedly

27 certified nearly identical classes seeking to challenge prison policies regarding COVID-

28 19. See, e.g, Hernandez Roman v. Wolf, No. 20-00768 TJH (PVCx) (C.D. Cal. Apr. 23,

1
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1 2020), ECF No. 52; Fraihat v. U.S. Immigration & Customs Enf’t, No.

2 EDCV191546JGBSHKX, 2020 WL 2759848 (C.D. Cal. Apr. 15, 2020); Ahlman v.

3 Barnes, --F. Supp. 3d--, No. SACV 20-835 JGB, 2020 WL 2754938 (C.D. Cal. May 26,

4 2020). Despite Defendants’ best efforts to reargue a motion they already lost, the class

5 certification analysis is straightforward. Plaintiffs need only satisfy each element of Rule

6 23(a) and one element of Rule 23(b), which they easily do.

7 II. PLAINTIFFS EASILY SATISFY ALL RULE 23 REQUIREMENTS.

8

Class certification is a procedural device that Plaintiffs have a “categorical right” to

9 invoke so long as their claims meet the “specified criteria” of Rule 23(a) and one of the

10 subsections of Rule 23(b). Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins., Co.,

11 559 U.S. 393, 398 (2010). Rule 23(a) includes four requirements: (1) numerosity;

12 (2) commonality; (3) typicality; and (4) adequacy of representation.” Parsons, 754 F.3d

13 at 674. Rule 23(b)(2) requires that “the party opposing the class has acted or refused to

14 act on grounds that apply generally to the class, so that final injunctive relief or

15 corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R.

16 Civ. P. 23(b)(2). Except where essential to the consideration of these specific factors, no

17 further consideration of the merits is necessary or appropriate at this time. See, e.g.,

18 Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013) (“Merits

19 questions may be considered to the extent—but only to the extent—that they are relevant

20 to determining whether the Rule 23 prerequisites for class certification are satisfied.”)

21 (citation omitted); Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 178 (1974) (“In

22 determining the propriety of a class action, the question is not whether the plaintiff or

23 plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the

24 requirements of Rule 23 are met.”) (citation omitted).

25

A. The Classes and Subclasses Are Sufficiently Numerous.

26

1. Defendants Concede Numerosity For Both Classes.

27

Defendants do not contend that either the Pretrial or Post-Conviction Classes are

28 insufficiently numerous. Their only argument as to numerosity relates to the two

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1 Medically Vulnerable Subclasses and the two Disability Subclasses. Thus, at the outset,

2 this Court can conclude that the numerosity of the two primary classes is not in dispute.

3

2. Common Sense, Reasonable Inferences, and Evidence Ignored By

Defendants Dictate That The Subclasses Are Sufficiently Numerous.

4

5

The Medically Vulnerable Subclasses include incarcerated persons who are 50

6 years or older or who have medical conditions that place them at heightened risk of severe

7 illness or death from COVID-19, such as (a) lung disease, (b) heart disease, (c) chronic

8 liver or kidney disease (including hepatitis and dialysis patients), (d) diabetes, (e)

9 hypertension, (f) compromised immune systems (such as from cancer, HIV, or

10 autoimmune disease), (g) blood disorders (including sickle cell disease), (h)

11 developmental disability, (i) severe obesity, and/or (j) moderate to severe asthma. The

12 Disability Subclasses include all current and future pretrial incarcerated persons who are

13 people with disabilities as defined under the ADA and Section 504, and whose disabilities

14 put them at increased risk of serious illness or death if they contract COVID-19. This

15 includes all Medically Vulnerable Subclass members except those who are deemed

16 Medically Vulnerable solely because of their age or obesity. Although Defendants are

17 uniquely capable of identifying precisely how many incarcerated persons fall within these

18 categories—and notably make no affirmative argument that any subclass is insufficiently

19 numerous—Defendants instead suggest that Plaintiffs have provided insufficient evidence

20 to prove numerosity. Doc. 54 at 5-6. Defendants are incorrect.

21

“Plaintiffs are not required to establish the precise number of class members, as

22 long as common sense and reasonable inferences from the available facts show that the

23 numerosity requirement is met.” Ely v. Saul, No. CV-18-0557-TUC-BGM, 2020 WL

24 2744138, at *13 (D. Ariz. May 27, 2020) (quoting Lowe v. Maxwell & Morgan PC, 322

25 F.R.D. 393, 399 (D. Ariz. 2017)). Here, Defendants concede that there are 4,685

26 incarcerated persons in the five jails as of August 11, 2020. See Doc. 51-1 at ¶ 3.

27 Plaintiffs’ complaint asserted that more than 300 people met the definition of “Medically

28 Vulnerable” based solely on being over the age of 50. See Doc. 1 at ¶ 33. Demonstrating

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1 that the subclasses are sufficiently numerous, Plaintiffs cite a study conducted by the

2 Department of Justice that found that “half of state and federal prisoners and local jail

3 inmates reported having a chronic condition.” Doc. 11 at 12.1 Plaintiffs also cite the

4 Centers for Disease Control (“CDC”) guidance for detention facilities, recognizing that

5 “incarcerated/detained populations have higher prevalence of infectious and chronic

6 diseases and are in poorer health than the general population, even at younger ages.” Id.2

7 Defendants provide no response to these studies. Defendants cannot simply ignore the

8 cited evidence and then claim none was provided. From this undisputed information

9 about the number of class members, and the statistical prevalence of significant medical

10 conditions amongst those class members, “common sense and reasonable inferences”

11 suggest that the subclasses are sufficiently numerous. Ely, 2020 WL 2744138, at *13; see

12 also Rannis v. Recchia, 380 F. App’x 646, 651 (9th Cir. 2010) (numerosity generally

13 satisfied where “a class includes at least 40 members.”) (citation omitted).3

14

Defendants similarly attempt to evade any direct argument as to joinder. “In

15 addition to class size, courts consider other indicia of impracticability, such as . . . the size

16 of individual claims, the financial resources of class members, and the ability of claimants

17 to institute individual suits.” Torres v. Goddard, 314 F.R.D. 644, 654 (D. Ariz. 2010)

18 (citation omitted). To be impracticable, joinder must be difficult or inconvenient but need

19 not be impossible. See Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-14

20 (9th Cir. 1964) (noting “impracticability does not mean impossibility, but only the

21 1

U.S. Dep’t of Just., Special Report NCJ 248491: Medical Problems of State and

22

Federal Prisoners and Jail Inmates, 2011-2012 (revised Oct. 4, 2016), available at https://www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf.

23 2 Centers for Disease Control & Prevention, CS 316182-A, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention
24 Facilities (March 23, 2020), available at https://stacks.cdc.gov/view/cdc/86821.

25

3 Defendants also make the incredible argument that the subclasses are insufficiently numerous because there are only seven proposed class representatives with medical

26

vulnerabilities and seven is not sufficient to establish numerosity. Doc. 54 at 6. That is not the standard, nor can it be. The entire point of a class action is to have a limited

27

number of representatives represent a larger class. Even a single class representative can be sufficient. Requiring the number of class representatives to meet the numerosity

28 requirement would defeat the entire purpose of a class action.

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1 difficulty or inconvenience of joining all members of the class”) (internal quotation marks

2 and citation omitted); see also Knapper v. Cox Commc’ns, Inc., 329 F.R.D. 238, 241 (D.

3 Ariz. 2019) (numerosity is met if “general knowledge and common sense indicate that

4 joinder would be impracticable.”).

5

Rather than address the reasons set forth for the impracticability of joinder in

6 Plaintiffs’ motion, Defendants argue impracticability should be “considered only when

7 they have provided evidence of a specific number of putative class members to determine

8 whether it is sufficiently numerous.” Doc. 53 at 6. In other words, Defendants say

9 impracticability should only be considered if the class is already sufficiently numerous

10 based on size, which is a determination that would moot any need to consider

11 impracticability. Defendants’ only citation for this backwards proposition is Jordan v.

12 Los Angeles County, 669 F.2d 1311, 1319 (9th Cir. 1982), which expressly rejects their

13 argument. In Jordan, the Ninth Circuit held that the class was not sufficiently numerous

14 based purely on its size but held that numerosity was satisfied anyway because “the

15 presence of other indicia of impracticability persuade us that the requirement has been

16 met.” Id.

17

Here, numerosity is satisfied for both reasons: common sense and reasonable

18 inferences demonstrate that the classes and subclasses are sufficiently numerous and that

19 joinder of individual claims would be impracticable.

20

B. This Court Already Ruled That Plaintiffs’ Claims Raise Common

Questions of Law and Fact.

21

22

The second Rule 23(a) factor requires a demonstration that “there are questions of

23 law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “A clear line of precedent . . .

24 firmly establishes that when inmates provide sufficient evidence of systemic and

25 centralized policies or practices in a prison system that allegedly expose all inmates in that

26 system to a substantial risk of serious future harm, Rule 23(a)(2) is satisfied.” Parsons,

27 754 F.3d at 684. Commonality requires plaintiffs to assert claims that “depend upon a

28 common contention . . . capable of classwide resolution—which means that determination

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1 of its truth or falsity will resolve an issue that is central to the validity of each one of the

2 claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).

3

Here, this Court has already ruled that “Plaintiffs’ claims are not about the specific

4 facilities where each is housed, but about Defendants’ policies and practices with respect

5 to COVID-19 at all Maricopa County jails.” Doc. 52 at 11. Thus, as has been recognized

6 by other recent rulings, broad determinations about whether system-wide policies violate

7 the rights of incarcerated persons are precisely the type of common issues that can be

8 resolved “in one stroke” and are ripe for determination on a class basis. See e.g.,

9 Hernandez Roman, No. 20-00768 TJH (PVCx), Doc. 52 (certifying class because: “The

10 issue before the Court is whether the manner of their detention—the conditions of their

11 confinement—violates their Fifth Amendment substantive due process rights.”); Fraihat

12 v. U.S. Immigration and Customs Enforcement, No. EDCV 19-1546, 2020 WL 1932570,

13 *18 (C.D. Cal. April 20, 2020) (“Despite Plaintiffs’ admitted differences, each putative

14 class member finds herself in [a] similar situation . . . . As a result, the factual differences

15 are not of the sort that likely affect entitlement to relief or that are likely to change the

16 outcome of the legal analysis.”) (citations omitted; Ahlman, 2020 WL 2754938; see also

17 Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959, 989 (D. Ariz. 2011), aff’d, 695 F.3d

18 990 (9th Cir. 2012) (“In a civil rights suit, ‘commonality is satisfied where the lawsuit

19 challenges a system-wide practice or policy that affects all of the putative class

20 members.’”) (citations omitted).4 Since Plaintiffs filed their motion for class certification,

21 the Central District of California certified a class of 2,000 detained persons based, in part,

22 on a finding that commonality was satisfied because: all of the “class members have been

23 subjected to significant exposure to COVID-19” and there were multiple common facts

24 about how prison policies and procedures were generally applied. Torres v. Milusinic,

25 No. 20-cv-04450-CBM-PVC, 2020 WL 4197285, at *22 (C.D. Cal. July 14, 2020).

26 4

Defendants address only one of these cases in their response, Ahlman, and do so

27

only to suggest that that ruling is currently under review and has been stayed by the U.S. Supreme Court. Doc. 53 at 16. Ahlman has not been overruled and Defendants do not

28 cite that any of the other cases, for which they offer no response at all, are under review.

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1

Defendants ignore the Court’s prior ruling, which was issued before they filed their

2 response and is cited therein. Instead, they simply regurgitate the argument that

3 commonality does not exist because “Plaintiffs acknowledge there are differences among

4 the confinement conditions at each of the five MCSO jails.” Doc. 53 at 11. But the Court

5 already rejected that exact argument in holding that this case is about system-wide

6 policies. See Doc. 52 at 11.

7

Notwithstanding its irrelevance to the issue of class certification, Defendants

8 reargue their defenses on the merits, contending that there is insufficient evidence of “a

9 systematically deficient policy or practice that is deliberately indifferent to inmates at all

10 five MCSO Jails.” Doc. 53 at 12.5 But “Rule 23 grants courts no license to engage in

11 free-ranging merits inquiries at the certification stage.” Amgen, 568 U.S. at 466; see also

12 Eisen, 417 U.S. at 178 (“In determining the propriety of a class action, the question is not

13 whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the

14 merits, but rather whether the requirements of Rule 23 are met.”). For class certification,

15 Plaintiffs do not need to establish that Defendants’ system-wide policies are deficient;

16 they merely need to establish that such policies exist. See Parsons, 754 F.3d at 681

17 (“numerous courts have concluded that the commonality requirement can be satisfied by

18 proof of the existence of systemic policies and practices that allegedly expose inmates to a

19 substantial risk of harm.”) (citation omitted). If the policies exist, it is sufficient for

20 Plaintiffs merely to allege that they are insufficient. See Unknown Parties v. Johnson, 163

21 F. Supp. 3d 630, 640 (D. Ariz. 2016) (holding that “claims involving overall conditions

22 that affect the rights of all putative class members are sufficient to satisfy commonality”

23 5

Defendants also assert that the fourteen declarations submitted by Plaintiffs in

24

support of their motion should be discarded solely because they are “unsworn.” Doc. 53 at 12. The strength of Plaintiffs’ evidence, which will be supported further by discovery

25

to be obtained from Defendants, is not currently at issue because the commonality analysis asks only whether Plaintiffs’ allegations raise common questions of law or fact.

26

However, Plaintiffs note that Defendants provide no authority for the assertion that unsworn statements cannot be relied upon by the Court, instead citing a single case where

27

a court took issue with “anecdotal evidence.” Id. Plaintiffs’ fourteen declarations detailing systemic violations of their rights are more than mere “anecdote[es]” and will be

28 fully supported by, and consistent with, additional evidence to be collected in discovery.

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1 and that whether “such conditions result from Defendants’ stated policies or from their

2 alleged failure to create or adhere to those policies does not change the commonality

3 analysis.”); cf. Parsons, 754 F.3d at 678 (finding commonality where “all members of the

4 putative class and subclass have in common . . . their alleged exposure, as a result of

5 specified statewide ADC policies and practices . . . , to a substantial risk of serious future

6 harm to which the defendants are allegedly deliberately indifferent.”). The existence of

7 such policies is not disputed, and this Court has already recognized that Plaintiffs have

8 mounted a substantial enough challenge to those policies to survive a motion to dismiss.

9 Rule 23(a)(2) requires nothing more.6

10

Defendants also argue that “individualized inquiry defeats commonality and/or

11 Rule 23(b)(2) where, as here, the inmates seek classwide release due to COVID-19,” and

12 they cite out-of-circuit district court cases to support this proposition. Doc. 53 at 17.

13 While there is a circuit split regarding whether habeas relief may be pursued on a class-

14 wide basis, the Ninth Circuit has expressly recognized that although “the usual habeas

15 corpus case relates only to the individual petitioner and to his unique problem[,] . . . there

16 can be cases . . . where the relief sought can be of immediate benefit to a large and

17 amorphous group. In such cases, it has been held that a class action may be appropriate.”

18 Mead v. Parker, 464 F.2d 1108, 1112-13 (9th Cir. 1972) (citation omitted); see also Cox

19 v. McCarthy, 829 F.2d 800, 804 (9th Cir. 1987) (“This court has held that a class action

20

6
21

Defendants argue without citation that the fact that some incarcerated persons will

not develop symptoms upon being exposed to COVID-19 somehow defeats commonality.

22

Doc. 53 at 14. But differences in the specific symptoms experienced by any particular class member do not change the fact that all class members assert a common challenge to

23

common practices and procedures that put all class members at risk. Additionally, someone infected with COVID-19 but asymptomatic during the infection period can still

24 be at substantial risk of serious harm. See, e.g., Robert Glatter MD, Covid-19 Can Cause Heart Damage—Even If You Are Asymptomatic, FORBES (August 17, 2020 3:24 PM),

25

available at https://cutt.ly/ud6dw9X (discussing “a new study published in JAMA last month, demonstrating that even if you are unaware of having any symptoms after

26

recovery from Covid-19, there is the possibility that the virus may cause heart damage or inflammation that could put you at risk for complications including heart arrhythmias,

27

heart failure and sudden cardiac death”); see also, e.g., Pien Huang, We Still Don’t Fully Understand The Label ‘Asymptomatic’, NPR (June 23, 2020 10:31 AM), available at

28 https://cutt.ly/wd6dsXD (noting high rates of lung damage in asymptomatic patients).

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1 may lie in habeas corpus.”) (citation omitted). See also Zepeda Rivas v. Jennings, No. 20-

2 CV-02731-VC, 2020 WL 2059848, at *1 (N.D. Cal. Apr. 29, 2020) (certifying class of

3 detainees challenging COVID-19 conditions of confinement and holding: “There is

4 nothing about the procedural posture of this lawsuit—such as the fact that it seeks habeas

5 relief . . . that precludes provisional class certification.”). Accordingly, controlling

6 precedent establishes that the individualized inquiry that may eventually be required to

7 identify class members for which release would be appropriate is not a bar to class

8 certification.7 In a recent decision within the Ninth Circuit, a district court expressly

9 rejected the same argument that individualized issues regarding release should preclude

10 certification because the proper inquiry, “whether Respondent’s existing process with

11 respect to home confinement and compassionate release, as applied to medically

12 vulnerable inmates, amounts to deliberate indifference,” is a common one. Torres, 2020

13 WL 4197285, at *22, at 46 n. 63 (quotation omitted).

14

C. The Class Representatives Are Adequate and Typical.

15

Defendants combine the typicality and adequacy factors. Doc. 53 at 6-9. But the

16 relevant legal standards are not disputed. Typicality exists if “the claims or defenses of

17 the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ.

18 P. 23(a)(3). The “requirement is permissive and requires only that the representative’s

19 claims are reasonably co-extensive with those of absent class members; they need not be

20 substantially identical.” Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th Cir. 2010)

21 (internal quotation marks and citation omitted). Adequacy is satisfied when “the

22 representative parties will fairly and adequately protect the interests of the class.” Fed. R.

23 Civ. P. 23(a)(4). “Whether the class representatives satisfy the adequacy requirement

24 depends on ‘the qualifications of counsel for the representatives, an absence of

25 antagonism, a sharing of interests between representatives and absentees, and the

26

7
27

Notably, only a single claim asserted by a single subclass (Claim 4, asserted by the

Pretrial Medically Vulnerable Subclass) seeks habeas relief. This argument has no

28 bearing on any other claim or any other form of relief that Plaintiffs seek.

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1 unlikelihood that the suit is collusive.’” Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir.

2 1998) (quoting Crawford v. Honig, 37 F.3d 485, 487 (9th Cir. 1994)).

3

1. Reconsideration Of Defendants’ Failed Exhaustion Affirmative

Defense Is Inappropriate and Does Not Bar Class Certification.

4

5

The only argument that Defendants provide regarding adequacy or typicality that

6 purportedly applies to all eight class representatives is that, according to Defendants, their

7 intention to assert an affirmative defense of non-exhaustion somehow renders all eight

8 Plaintiffs either inadequate or atypical. Defendants provide no explanation how this is

9 relevant to an adequacy or typicality analysis, and they cite no authority holding that their

10 affirmative defense is relevant to either analysis under Rule 23.8 Moreover, this is also a

11 repeat of yet another argument this Court has already rejected. See Doc. 52 at 7. The

12 Court held that resolution of Defendants’ exhaustion argument should not be addressed

13 until the summary judgment stage of proceedings, i.e. after both sides have had an

14 opportunity to conduct discovery and provide evidence in support of their positions.9 Id.

15 Defendants’ efforts to reargue that affirmative defense here, in connection with an

16 inapplicable test under Rules 23(a)(3)&(4), is entirely inappropriate. See, e.g., Medearis

17 v. Oregon Teamster Employers Trust, No. Cv. 07–723–PK, 2008 WL 4534108, at *2 (D.

18 Or. Oct. 1, 2008) (declining to address exhaustion prior to class certification because “the

19
8 Regarding typicality, Defendants do not explain how a need to satisfy the exhaustion 20 requirements under the PLRA, which applies to all incarcerated persons, would make the
class representatives atypical of the Classes and Subclasses they seek to represent. 21 Plaintiffs allege that no administrative remedies are realistically available to the class
members, thus waiving any exhaustion requirement, and the resolution of that issue is 22 certainly of interest to every member of the class and not just the class representatives.

23 9 The Ninth Circuit requires that plaintiffs be given an opportunity to conduct precertification discovery when doing so is “likely to substantiate the class allegations.”

24

See Perez v. Safelite Group, Inc., 553 F. App’x 667, 668-69 (9th Cir. 2014). To the extent that the Court believes resolution of Defendants’ affirmative defense based on exhaustion

25

is relevant to class certification, Plaintiffs request an opportunity to take discovery to support their allegation that administrative remedies are not reasonably available. Id.

26

(“Failing to allow precertification discovery where it is necessary to determine the existence of a class is an abuse of discretion.”) (citation omitted). In the alternative, this

27

Court could provisionally certify the class and then readdress that certification, if necessary, after discovery on the merits has occurred. However, Plaintiffs believe they

28 have presented a more than sufficient basis to certify the class based solely on the papers.

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1 merits of an affirmative defense . . . are not properly determined at the class certification

2 stage”); Staton v. Boeing Co., 327 F.3d 938, 954 (9th Cir. 2003) (the court should not

3 “advance a decision on the merits to the class certification stage”) (citations omitted).

4

In any event, Plaintiffs Perez and Stepter did exhaust their administrative remedies

5 (see Doc. 40 at 19-20). And there is substantial evidence that administrative remedies are

6 not available to many Plaintiffs, and that no emergency grievance procedure exists. Id. at

7 20-22; Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (the PLRA “does not require

8 exhaustion when circumstances render administrative remedies ‘effectively

9 unavailable.’”) (citation omitted). It was Defendants’ burden to refute these allegations,

10 and this Court has already ruled that Defendants did not provide a sufficient basis for the

11 Court to determine at the motion to dismiss stage that Plaintiffs had failed to exhaust

12 available remedies. See Doc. 52 at 7; see Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir.

13 2014) (holding that “the ultimate burden of proof remains with the defendant[s]” to

14 “prove that there was an available administrative remedy”). Defendants concede that,

15 under the doctrine of vicarious exhaustion, Plaintiffs need only establish that the

16 exhaustion requirements are satisfied for a single class representative. Doc. 53 at 9, n. 7;

17 see also Chandler v. Crosby, 379 F.3d 1278 (11th Cir. 2004); Gates v. Cook, 376 F.3d

18 323, 329-30 (5th Cir. 2004); Barfield v. Cook, No. 3:18-cv-1198, 2019 WL 3562021, at

19 *8 (D. Conn. Aug. 6, 2019); Lewis v. Washington, 265 F. Supp. 2d 939, 942 (N.D. Ill.

20 2003). Thus, exhaustion presents no hurdle to class certification.

21

2. Defendants Do Not Assert Any Other Argument Against Appointing

Class Representatives For All Classes and Subclasses.

22

23

Defendants’ remaining objections to typicality and adequacy are limited almost

24 entirely to disputing some class representatives’ ability to represent specific subclasses.

25 Most importantly, aside from the exhaustion argument, Defendants do not raise any

26 specific adequacy or typicality challenge to Plaintiffs Crough, Perez, Ochoa, and Tequida.

27 If the Court does not accept Defendants’ invitation to reconsider the Court’s ruling—

28 issued just one week ago—on the same exhaustion arguments that Defendants reassert

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1 here, there is concededly at least one adequate and typical representative for each class

2 and subclass. Defendants do not dispute Crough’s capability to represent the Pretrial

3 Class, Pretrial Medically Vulnerable Subclass, or the Pretrial Disability Subclass. Nor do

4 they dispute Perez’s or Ochoa’s capability to represent the Pretrial Class, or Tequida’s

5 capability to represent the Post-Conviction Class, Post-Conviction Medically Vulnerable

6 Subclass, or Post-Conviction Disability Subclass. Thus, every class and subclass has at

7 least one representative even without consideration of the remaining four proposed

8 representatives.10

9

3. Plaintiffs Fenty, Stepter, and Scroggins Are Typical and Adequate

Representatives.

10

11

Defendants claim that Plaintiffs Fenty, Stepter, and Scroggins cannot represent the

12 Medically Vulnerable or Disability Subclasses because they do not meet Defendants’

13 definition of “medically vulnerable.” Doc. 53 at 8. This argument implicitly makes two

14 critical concessions. First, Defendants do not argue that Fenty, Stepter, or Scroggins are

15 somehow incapable of representing the Pretrial Class (as opposed to the subclasses within

16 the Pretrial Class). Second, by changing the definition of “medically vulnerable” and then

17 arguing that Fenty, Stepter, and Scroggins do not meet this new definition, Defendants

18 implicitly concede that Fenty, Stepter, and Scroggins do meet the definition of “medically

19 vulnerable” that Plaintiffs have requested that this Court use when it certifies the class—a

20 definition that Defendants do not directly challenge.

21

According to Defendants, Fenty, Stepter, and Scroggins are not “medically

22 vulnerable” because they are each under the age of 65 and do not have medical conditions

23 that would place them in the category of persons who are “at increased risk of a severe

24 illness from COVID-19,” according to the CDC. Doc. 53 at 8-9. Defendants exclude

25

10
26

As this Court has already held, “Plaintiffs’ claims are not about the specific

facilities where each is housed, but about Defendants’ policies and practices with respect

27

to COVID-19 at all Maricopa County jails.” Doc. 52 at 11. Plaintiffs are not asserting facility-specific claims and thus have no need for a representative for each class from each

28 facility.

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1 from their own definition of “medically vulnerable,” which is not the one Plaintiffs seek

2 to certify, anyone older than 50 but younger than 65, as well as anyone with medical

3 conditions that would place them in the CDC’s category of persons who “might be at an

4 increased risk of severe illness from COVID-19.” Id.11 Regarding Scroggins, this

5 assertion is simply incorrect. Defendants concede that a person with “a body mass index

6 of 30 or higher” falls within the CDC’s category of people who “are at an increased risk”

7 and their own medical doctor and declarant, Dr. Phillips, has conceded that “Mr.

8 Scroggins has a BMI above 30.” Doc. 49 ¶ 16; Doc. 53 at 8.

9

More importantly, Plaintiffs have presented substantial evidence that it is

10 inappropriate to exclude people falling in the CDC’s “might be at an increased risk”

11 category and people aged 50-64 from the definition of “medically vulnerable” in this case.

12 As explained by Dr. Cohen, the CDC’s distinction between conditions that cause an

13 increased risk and those that “might” caused an increased risk is based on the quality and

14 quantity of data currently available in a rapidly shifting environment. Doc. 41-1 Ex. 11

15 ¶ 15. Even for conditions that fall in the “might be” category, “there is consistent

16 evidence of heightened risk but from a smaller number of studies, or where multiple

17 studies may have been conducted with different conclusions about the risk.” Id. Dr.

18 Cohen further explains that, given “the constant evolution of science’s understanding of

19 COVID-19, people with medical conditions on either list should be deemed medically

20 vulnerable.” Id. ¶ 16. “The CDC’s own data strongly suggests the increased risk from

21 COVID-19 faced by those with chronic conditions in the second category.” Id.

22 Additionally, sound scientific evidence indicates that the increased risk based on age

23 begins at age 50, as demonstrated by numerous studies cited in Dr. Cohen’s initial

24 declaration. See Doc. 12 ¶¶ 24. For these reasons, Plaintiffs’ definition of the Medically

25 Vulnerable Subclasses—which includes anyone over the age of 50 and anyone possessing

26 medical conditions such as those conditions that are now listed in either of the CDC’s two

27 11 As noted previously, Fenty has hypertension, Scroggins has asthma, and Stepter is 61 28 years old.

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1 categories—is reasonable and consistent with CDC guidance.

2

Again, although Defendants purport that Fenty, Stepter, and Scroggins are

3 inadequate or atypical class representatives, they do not assert any challenge to the actual

4 definitions of the classes or subclasses. Defendants could have objected to a particular

5 class or subclass definition as overbroad, but they chose not to do so. Defendants prove

6 nothing by arguing that Fenty, Stepter, and Scroggins would be unable to represent

7 hypothetical subclasses that are narrower than the ones they actually seek to represent.

8

4. Plaintiff Reason Can Maintain His Claims.

9

“Individuals with mooted claims can maintain claims for injunctive relief where

10 they ‘are challenging an ongoing government policy.’” Fraihat, 2020 WL 2759848, at

11 *10 (quoting United States v. Howard, 480 F.3d 1005, 1010 (9th Cir. 2007)). Likewise,

12 “where a plaintiff’s claim becomes moot while he seeks to certify a class, his action will

13 not be rendered moot if his claims are ‘inherently transitory’ (such that the trial court

14 could not have ruled on the motion for class certification before his or her claim expired),

15 as similarly-situated class members would have the same complaint.” Id. (citing Pitts v.

16 Terrible Herbst, Inc., 653 F.3d 1081, 1090-91 (9th Cir. 2011)). “The justification for this

17 rule is that such claims fall into [the] class of cases ‘capable of repetition, yet evading

18 review.’” Id. These factors apply here, as Plaintiff Reason’s claims only became

19 potentially moot after the motion for class certification was filed, Doc. 42 at 33, and he is

20 “challenging an ongoing government policy.” As such, he should be allowed to proceed

21 as a class representative.

22

5. Defendants Do Not Dispute The Adequacy Of Class Counsel.

23

The adequacy inquiry under Rule 23(a)(4) also requires a determination that class

24 counsel are “qualified.” Lynch v. Rank, 604 F. Supp. 30, 37 (N.D. Cal. 1984), aff’d, 747

25 F.2d 528 (9th Cir. 1984). Defendants raise no objection to the qualifications of class

26 counsel, so this factor is satisfied.

27

D. Rule 23(b)(2) Is Satisfied.

28

Rule 23(b)(2) is specifically designed for the type of claims that Plaintiffs assert.

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1 “Rule 23(b)(2) permits class actions for declaratory or injunctive relief where ‘the party

2 opposing the class has acted or refused to act on grounds generally applicable to the

3 class.’” Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 614 (1997) (quoting Fed. R. Civ.

4 P. 23(b)(2)). Indeed, “the primary role of this provision has always been the certification

5 of civil rights class actions.” Parsons, 754 F.3d at 686 (citation omitted). “Civil rights

6 cases against parties charged with unlawful, class-based discrimination are prime

7 examples [of Rule 23(b)(2) actions].” Amchem, 521 U.S. at 614 (citations omitted); see

8 also Walters, 145 F.3d at 1047 (Rule 23(b)(2) “was adopted in order to permit the

9 prosecution of civil rights actions.”). Thus, “courts have repeatedly invoked” Rule

10 23(b)(2) “to certify classes of inmates seeking declaratory and injunctive relief for alleged

11 widespread Eighth Amendment violations in prison systems.” Parsons, 754 F.3d at 686;

12 cf. Carrillo v. Schneider Logistics, Inc., No. CV 11-8557 CAS (DTBx), 2012 WL 556309,

13 at *9 (C.D. Cal. Jan. 31, 2012), aff’d, 501 F. App’x 713 (9th Cir. 2012) (noting that courts

14 “routinely grant provisional class certification for purposes of entering injunctive relief”)

15 (citation omitted). See also Ahlman, 2020 WL 2754938, at *8 (Rule 23(b)(2) is met

16 because plaintiffs “allege that the conditions of confinement violate their federal

17 constitutional and statutory rights” and so “a single injunction would provide relief to

18 each class member”) (citation omitted). Defendants do not dispute any of this authority.

19

In fact, aside from a threadbare commonality argument addressed above, which

20 this Court already rejected, Defendants offer no argument suggesting that Rule 23(b)(2) is

21 not satisfied. Plaintiffs thus satisfy every element of Rule 23(a) and one required element

22 of Rule 23(b), rendering class certification appropriate.

23 III. THIS COURT CAN CERTIFY A CLASS TO OBTAIN HABEAS RELIEF.

24

Defendants’ final argument merely rehashes their theory that this Court is

25 somehow barred from certifying a class to pursue release. Again, the Pre-Trial Medically

26 Vulnerable Subclass is the only class or subclass in this case seeking habeas relief, and

27 that subclass only seeks such relief in connection with a single claim predicated on a

28 single set of facts. Litigants in the Ninth Circuit plainly can pursue habeas relief on a

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1 class-wide basis. See Cox, 829 F.2d at 804 (“This court has held that a class action may

2 lie in habeas corpus.”) (citation omitted); Mead, 464 F.2d at 1112-13. Defendants have

3 already asserted every argument they now reassert on this point. The Court held that “the

4 pandemic and the possibility of irreparable harm to the medically vulnerable Pretrial

5 Plaintiffs who are at high risk of contracting and dying from COVID-19 is an

6 extraordinary circumstance potentially warranting this Court’s intervention.” Doc. 52 at

7 14. That holding should control here, and Defendants offer no sound basis for revisiting it

8 in the context of this procedural motion. Indeed, regardless of the ultimate merits of the

9 sought habeas relief, the unique circumstances that give rise to the claim here mean that it

10 is it is appropriate for certification under 23(b)(2).

11 IV. CONCLUSION

12

Because Plaintiffs have met all the requirements of Rule 23, the class should be

13 certified. 14 DATED: August 21, 2020 15 16 17 18 19 20 21 22 23 24 25 26 27

Respectfully submitted,
STINSON LLP
/s/ Larry Wulkan Larry J. Wulkan (021404) STINSON LLP 1850 North Central Avenue, Suite 2100 Phoenix, Arizona 85004-4584
ETHAN J. SANDERS STINSON LLP 1201 Walnut Street, Suite 2900 Kansas City, MO 64106
SHARI ROSS LAHLOU DECHERT LLP 1900 K Street, N.W. Washington, DC 20006 - 1110
PAT ANDRIOLA TIMOTHY LY DECHERT LLP Three Bryant Park, 1095 Avenue of the Americas New York, NY 10036

28

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Case 2:20-cv-01192-SPL-JZB Document 62 Filed 09/08/20 Page 19 of 19

1

BENJAMIN M. SADUN

ALLISON OZUROVICH

2

DECHERT LLP

633 West 5th Street, Suite 4900

3

Los Angeles, CA 90071

4

JARED G. KEENAN

CASEY ARELLANO

5

ACLU FOUNDATION OF ARIZONA

P.O. Box 17148

6

Phoenix, AZ 85011

7

OLGA AKSELROD

ERIC BALABAN

8

ZOE BRENNAN-KROHN

HUGH HANDEYSIDE

9

CLARA

AMERICAN CIVIL LIBERTIES

10

UNION FOUNDATION

125 Broad Street, 18th Floor

11

New York, NY 10014

12

915 15th St. NW, 7th Floor

Washington, DC 20005

13

39 Drumm Street

14

San Francisco CA 94111

15

16

CERTIFICATE OF SERVICE

17 I hereby certify that on August 21, 2020, I caused the foregoing document to be filed
18 electronically with the Clerk of the Court through ECF, and served the counsel of record via the
19 Court’s CM/ECF System.
20

21 /s/ Kathleen Kaupke
22

23

24

25

26

27

28

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